FOREST GUARDIANS, Plaintiff-Appellant, v. UNITED STATES FISH AND WILDLIFE SERVICE, Defendant-Appellee, and The Peregrine Fund, Defendant-Intervenor-Appellee.

Appellant, Forest Guardians, contend on appeal that the U.S. Fish and Wildlife Service ("FWS") violated section 10(j) of the Endangered Species Act ("ESA") by releasing captive-bred Falcons within an area not wholly separated geographically from an already-existing Falcon population. Furthermore, Forest Guardians aver that the FWS violated the National Environmental Policy Act ("NEPA") by deciding to release the captive-bred Falcons before taking the requisite "hard look" at the environmental impact of its decision. Forest Guardians appeal the decision of the district court in favor of Appellees for four reasons; specifically, the ruling: (1) allows the Falcon to be downgraded from endangered to threatened; (2) permits incidental takings of the Falcon; (3) reduces consultation requirements for federal agencies concerning the Falcon; and (4) prohibits the designation of a critical habitat for the Falcon in New Mexico and Arizona. The Court of Appeals, Tenth Circuit, rejected both arguments and affirmed. First, regarding Forest Guardians’ challenge of section 10(j) of the ESA, the court held that the FWS’s release of the captive-bred Falcons did not violate the Act. Namely, Forest Guardians’ contention that New Mexico, the location of the experimental release, already quartered an existing population was unpersuasive. As established by precedent, "population" means more than two, or even three, birds, but, instead, a "self-sustaining group [of birds] in common spatial relationship." New Mexico, the court concluded, harbored no such existing "population." Finally, the court rejected Forest Guardian’s second contention that the FWS violated the NEPA by failing to adequately review its proposed action. After conducting both an objective and subjective inquiry into the actions of the FWS, the court held that "the record contains no evidence that the FWS failed to take a hard look at the environmental impacts of the 10(j) rule due to bias" or predetermination. Accordingly, with one justice concurring, the court affirmed the district court’s denial of Forest Guardians’ petition for review of agency action.