The other day I was reminded of the phrase “benefit of the doubt”. This phrase gets used occasionally in conversations around Section 7 consultation. It is mentioned in the handbook, and it's mentioned in the preamble to the 1986 regulation revisions. That particular use of the phrase comes from page 12 of a 1979 Congressional Conference Report where changes to the wording in the Act were being debated. Initially, the conversations that I heard around this phrase didn't make a lot of sense to me and when I looked up that report, I became even less convinced that the phrase was being used completely in the context that Congress had been debating it.

Then in 2009 I got hold of a court opinion out of Florida. The opinion came from the 11th Circuit Court of Appeals and the case was brought by the Miccosukee Indian Tribe against the US Fish and Wildlife Service. You can read the text of the opinion here. The case concerned a biological opinion for the Cape Sable seaside sparrow. The phrase “benefit of the doubt” was not the main thrust of the claim against U S Fish and Wildlife Service’s biological opinion, but it did come up during the case. The judge spent about two pages discussing the conference report’s phrase and its meaning as he interpreted it when it came to relating to Section 7. I thought his opinion did a pretty good job of discussing the issue simply and logically and it cleared up some of my concerns. I would encourage practitioners who are curious about that phrase to read that opinion. The discussion regarding benefit of the doubt starts on page 15.