Forest Service Must Re-initiate Consultation With USFWS on Lynx

This looks to have far-reaching effects on those National Forests within the “core habitats”. This looks like a forced settlement situation, where the Forest Service will probably pay dearly for their loss in court.

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/06/17/13-35624.pdf

Interesting:

Although the court granted summary judgment to Cottonwood and ordered reinitiation of consultation, it declined to enjoin any specific project.

16 Comments

  1. Yup. That puts my final record (for cases I was the litigation coordinator with the Forest Service on) at 1-2.

    You make the best of the cards you are dealt, and the other side (as some like to say) held the trump card here – ESA. The weak point of this case was always the difference between NEPA (previously addressed by the Supreme Court in another case) and ESA. NEPA is less demanding of plans than projects, but ESA treats them the same.

    I feel good about the fact that the Forest Service was able to relegate the supposed Pacific Rivers Council precedent to a footnote, and get the court to think seriously about how the law should apply. It was also interesting that the court said: “The parties shall bear their own costs on appeal.”

    As a planner I like the result, since it enhances the importance of forest plans and the need to take a proactive and scale-appropriate look at at-risk species. It will be a big headache for the Forest Service. My crystal ball says there will soon be many injunctions, first of the specific projects involved in this case, then other projects in lynx critical habitat, and then projects in critical habitat for other species where plan consultation has not occurred, probably starting with bull trout.

    • I do appreciate Jon’s sharing of his experience and direct involvement. It seems like the Court left both parties an avenue to move on, doing the right things and consulting with (more) experts. I found it interesting that Burnt Ridge has a seemingly hallowed place in environmental law. Such a tiny salvage project in a place with so few impacts generate so much polarization. I would have been the on-the-ground inspector for that project, which involved mostly cable operations between existing roads. At the time, I just shook my head at all the wrangling over a minimal project. The Forest Service officials, at the time, seemed to want to push things as far as they would go, come hell or high water. I guess those decisions will continue to “bite them in the butt”, for some time to come.

      “Lessons learned”??

    • So how do foresee this playing out on the ground Jon? The ruling requires the USFS to reinitiate consultation. What does this look like? It seems as though little will change on a project specific basis for the USFS. My understanding is that the agency only establishes what is/is not critical habitat on a project by project basis due to personel and budgetary restraints. Is that what you mean between the difference between NEPA and the ESA? For example, the ESA requires a generalized designation by the USFWS, but then, the USFS must establish on a case by case basis for NEPA purposes which projects actually will disturb the generally designated critical habitat. Then, once the USFS has established that lynx are present and relying/not relying on the critical habitat, that finding can be used to confirm/refute the USFWS’s designation in the future. I’m pretty sure I’m off base here … but I’d like to know why.

  2. Caveat here that I have not been involved much in project consultation on critical habitat, and it may be a little different from project consultation on jeopardy effects (so anyone else feel free to weigh in). But here’s how I think it works. (The requirements for NEPA and ESA are independent, but are sometimes addressed in the same documents.)

    The listing agency publishes the critical habitat designation by regulation in the Federal Register. For lynx it included a map, and if a project is in the mapped area, critical habitat is considered “present” and consultation is required. The action agency may be able to make a determination in its BA that the action is not likely to adversely affect the critical habitat and avoid formal consultation. (Unfortunately “adverse effects” are allowed under the jeopardy standard, but “adverse modification” of critical habitat is prohibited; I’m glossing over that here.)

    Both the FS and FWS seemed to agree that it would not be much more work to analyze critical habitat in a BA on top of analyzing adverse effects as required by the listing itself (and that there is not much benefit in doing this additional analysis). Critical habitat designation includes identification of “primary constituent elements” (PCEs), which are “specific elements of the physical or biological features that provide for a species’ life history processes and are essential to the conservation of the species.” For lynx they are 1) snowshoe hares and their habitat, 2) snow conditions, 3) den sites and 4) connecting habitat. The analysis should focus on these things, but likely already did or would to determine adverse effects on the species and jeopardy.

    In the Pacific Rivers Council case, projects that could adversely affect salmon could not proceed until the plan consultation was done. That included ongoing actions and added up to a lot of projects over a large area. It was a major workload to just compile of list of every ongoing project to be able to say something about its effects on salmon. In that case, though, consultation had not occurred at all on the newly listed species, whereas for lynx there should be existing consultation documents on jeopardy that will speed this up (and the FS has had a lot of lead time).

    The Forest Service has no role in defining where critical habitat is designated (other than providing comments). However, this is related to mapping “lynx habitat.” The FS has done this working with the FWS, and I assume it means that an area not mapped as lynx habitat, but within the critical habitat boundaries, would not have the PCEs and therefore could not be adversely affected.

    There is also another related lynx issue that has been litigated recently. It has to do with how to determine lynx “presence” needed to trigger consultation for jeopardy. The agencies tried to tie it to “occupied habitat,” but the court found that the criteria the agencies used for this classification would have excluded some lynx that might actually be adversely affected. (Unoccupied habitat may be critical habitat, but I don’t believe this is the case for lynx.)

    Lessons learned (aside from the intricacies of critical habitat)? This isn’t a case where the FS has been told to raise the bar on the quality of its work, or that it broke the law in a substantive way. The agencies just chose to take a calculated risk to reduce their joint workload. It wasn’t totally clear what the law was; now it is.

    (The Summers case on Burnt Ridge was an effort by the government to reduce the pool of litigants (a cause near and dear to many here) and had nothing to do with the merits of the project.)

  3. I too thank Jon in his efforts to help us solve the rubik’s cube that is timber sale litigation. A lot of these lawsuits seem to be “agency push-back”…if that’s the proper term…against the courts. You have the Lonesome wood II decision that had to do with whether the USFWS could “tier”…WTH that is. A lot of the suits don’t seem to have a thing to do with “adversely affect”…but more to do with whether a species “may be present”…and the definition of. If I recall, in the case Jon mentioned about the agency using “occupied” to define “maybe”…the bar for “occupied” seemed pretty low, as in 2 confirmed sightings in 5 years ?? If that isn’t low enough, then I guess the bar for “maybe” must be laying on the ground…which it is. (The court seemed to be upset that the agencies were “importing” “Occupied” into where “maybe” should be in section 7….LOL). Under the courts definition, I don’t care if a project is in Ekalaka, Wolf Point, or downtown Missoula, you better find it “maybe present, BUT not adversely affect” …do the rubber stamp of formal consultation(or is it informal)…and cut some trees. Raises a question…wonder how many cases have been argued on “adversely affect”…or is that where agency deference comes in?
    One also has to wonder, since the critical habitat was designated 6 years ago, why the agencies just didn’t do the consultation…except perhaps they themselves are appalled at the duplicative waste of procedural time it is. What will this do on the ground…lemme guess…after “reinitiated consultation”…not a damn thing. It won’t change how many acres are logged in one project.

    No..this is hardly a great victory for the Lynx, it’s a great victory of “discretionary Federal Action” over “Major Federal Action.”

    • Derek,

      The Forest Service did reinitiate consultation in other regions of the country when critical habitat was designated. As the Ninth Circuit pointed out, “the Forest Service’s decision to voluntarily reinitiate consultation in some forests, but not in others, demonstrates . . . that it does not view reinitiation of consultation as a meaningless exercise.”

      What will this do on the ground? Probably stop several projects across 12 million acres of critical habitat in Montana, Idaho and Wyoming. That is important because “recent studies in the contiguous United States generally suggest that lynx are rarer and more patchily distributed in the west . . . than previously thought.” 79 Fed. Reg. 54782, 54813 (2014).

      The Cottonwood Environmental Law Center decision is a great victory for Canada lynx. And we will soon be using it to protect critical habitat for other species, like bull trout.

  4. I should have added that the law is now clear in the 9th Circuit. It is equally clear in the 10th Circuit that the Forest Service does not have to reinitiate consultation. The Forest Service can decide what it wants to do in the other circuits. In relation to John’s comment about other regions, it’s worth pointing out that the agency culture of letting every line officer do what they want was a factor in losing this case. (Different interpretations by different circuits can also be a basis for an appeal to the Supreme Court, but those are uncommon.)

  5. I happen to have an opinion on that.

    The 10th Circuit’s opinion in Forest Guardians v. Forsgren depends on making a distinction between the action of making a plan and what the plan does. I think that is a distinction without a difference; that you can’t separate the two for the purpose of analyzing effects.

    Compare: “Much like the promulgation of a regulation, we have little doubt after Norton (v. SUWA) that the act of approving, amending, or revising a LRMP constitutes “action” under § 7(a)(2) of the ESA. “ (p. 1154)

    To: “Contrary to Pacific Rivers, our analysis makes painfully apparent that “standards,” “guidelines,” “policies,” “criteria,” “land designations,” and the like appearing within a LRMP do not constitute “action” requiring consultation under § 7(a)(2) of the ESA.” (p. 1159)

    I think it’s helpful that the 9th Circuit expressly decided Cottonwood on different grounds than it did PRC, and based its decision on the established broad reach of ESA. While the 9th Circuit didn’t mention it, I think it is significant that the CEQ regulations do not apply NEPA in an ongoing way to plans the way they do to projects, while the ESA regulations treat plans and projects the same with regard to reinitiation of consultation. So SUWA should not be precedential for ESA cases.

    Because the 10th Circuit based its decision on plans not having effects, another possible important distinction may be that the Forsgren case did not include a challenge to a project. If that were done in the 10th Circuit, a court might decide (as the 9th Circuit appears to have done) that you can’t have project consultation without plan-scale consultation.

    • Hi Derek-
      Not Jon, but Ill take a stab in the interim. First, some forests did reinitiate consultation. For example, the IPNF in my neck of the woods. By my understanding, they were out in front on their new forest plan and decided in the interest of efficacy to reconsult and wrap it all up in one fell swoop. But prior to the new forest plans, I think generally the forests felt safe in just applying the NRLMD, and the standards derived there from, on a per project basis. Again, I think it was in the interest of efficacy. I’d imagine under SUWA they felt pretty comfortable in thinking they could not be compelled to reinitiate, so long as they acted at the project level in compliance with the NRLMD. Now, as it has been explained to me, all projects on forests that have not completed their new forest plans (such as the ClearNez) may have issues. In contrast, the IPNF, has only one or two projects going forward that weren’t created under their new plan, and they are currently revising them in anticipation of challenges to the projects. A few extra man hours. Other forests may need to invest significantly more time and effort, and if projects are challenged they may get an injunction slapped on them until they do. So, the ruling isn’t a blanket ruling that will impact all of the forests. And the impact will be varied depending on where the forests are: in their forest planning process, whether they reinitiated during the forest planning process, and how many projects they have floating around out there that aren’t covered under a forest plan that didn’t reinitiate consultation.
      Am I in the ballpark on this one Jon?

  6. Thanks for helping me on my personal journey of discovery Eric (a journey in which I constantly want to turn around at the next exit and go home…-LOL). I’m just curious, from an administrative point of view, if the agencies felt that “re-initiation” would be a waste of time. As in “would it be duplicative” or “not result in anything useful.” We are talking goals, standards, and objectives here at the plan level…who cares if its 10,000 acres or 100,000 acres. This has got to be more than just a pig headed turf war of sorts…or some kind of legal chess game to test the limits. I have to imagine that the powers that be said “why do this…we’re not going to gain anything from it.” I would really like to know how the “guys in the field” from both agencies feel about “re-initiating.” Perhaps they know that when they’re logging 1% of the forested acreage a decade…there is no effect to the Lynx. Perhaps I’m just a naïve rube to the ways of the world. I certainly don’t expect Jon to express an opinion on this matter (I’ll bet he’d like to express an opinion of the “naïve rube” part-LOL).

    If this re-initiation is a useless endeavor…I would think the public would like to know. Unfortunately, I’m sure it falls under this “cone of silence” business. Its unfortunate the public will never even get a chance to ask the question.

    So…On the Fleecer Mountain Project…Judge Dana remanded the BDNF to amend their forest plan with a few page screed about “why I didn’t count temporary roads in my road density calculations”…so does that mean all forests will now scramble to amend their plan(perhaps they can cut and paste the BDNF’s)? Ya know, I see projects on all of the Northern Region that just “languish” for literally years and years from scoping to decision. I used to think it was just incompetence, laziness, or lack of bodies…now I speculate they exist in limbo while the lawyers give a legal opinion on how a new ruling will affect them (actually, I never blame the employees, I blame the system). A Rider would be so much easier. Hey, they just transferred 70,000 acres of old growth to be clearcut in Alaska…with nary a peep. Hey…the whole National Forest system got started with a last minute Rider in a Homestead Act bill…that makes it good law. With the much neutered “new” media…no one would know about it. Real change happens in a twinkle of an eye…and the lack of opposition always surprises.

    • Jon really is the more qualified person to answer the details Derek. I have a beginners understanding of what’s going on, but would need to do more research than I practically have the time right now to do — although I would definitely enjoy the research more than what I’m currently doing. But I think you nailed it as far as the “I have to imagine that the powers that be said ‘why do this…we’re not going to gain anything from it'” comment. Which is why I used the word “efficacy” to describe what I feel was the motivation for not re-initiating. And in a way, there may be turf war mentality. But not, I suspect as you are imaging. The turf war is between the politicians, with the agency’s (as usual) caught in the middle. The entire reason the USFWS restudied the issue is because, as Jon posted before, during the Bush administration, the top USFWS administrator shot holes in the science and watered down the original findings. The court called them out on it. Enter a new administration, and yes, the FS is faced with the question: What is our most efficacious move here given our budget? So naturally, they do the least.
      My two cents … which, as I said earlier, are worth about that.

  7. You’re both right. Let’s just say that both the Forest Service and Fish and Wildlife Service are motivated by workload issues. And not just for lynx, but other listed species with critical habitat that will compound that. For lynx, there was also agreement between the agencies that analysis of critical habitat would not add information to what they had already done for jeopardy. Legally, they knew there was a risk because of the 9th Circuit Pacific Rivers Council case.

    The agencies would have preferred to wait until plans are revised to consult on critical habitat. They agree that plan revision is a “new” action that they must consult on (though there have been some FS reservations about that). (That’s why the Panhandle/Kootenai forests were consulting on lynx critical habitat, and why their projects should not be vulnerable.) The Fish and Wildlife Service finds consulting on plans to be useful because it can save time in the project consultation process (not sure if the FS sees the same workload benefit).

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