Supreme Court on ESA Consultations

Excerpt from this article:

The Supreme Court let stand a ruling by the U.S. Court of Appeals for the Ninth Circuit that allowed anyone to sue the Forest Service for Endangered Species Act consultations not just over specific actions such as timber harvests but over programmatic decisions, including decisions that already have been the focus of species consultations (U.S. Forest Serv. v. Cottonwood Envtl. Law Ct., U.S., No. 15-1387, 10/11/16).

The Forest Service argued the Cottonwood Environmental Law Center, concerned about the threatened Canada lynx, lacked standing to sue over programmatic policies rather than specific actions. The service also argued against being forced to reinitiate consultation with the U.S. Fish and Wildlife Service over completed forest plans — a precedent that could impose significant burdens on the agency in terms of multiple rounds of program consultations.

The Cottonwood Environmental Law Center sued for additional consultations after critical habitat was designated for the Canada lynx.


13 thoughts on “Supreme Court on ESA Consultations”

  1. The Forest Service was trying to extend a couple of Supreme Court decisions to forest planning. One was about the regulatory requirement to consult under ESA on ongoing actions in certain situations where the agency still has “discretionary Federal involvement or control.” Designation of new critical habitat is one of those situations. The Ninth Circuit held that the Forest Service retained such control of forest plans, and therefore they needed consult again on forests with newly designated lynx critical habitat.

    The other line of Supreme Court cases is about whether anyone is legally “harmed” by forest plans so that they may challenge them in court. The Forest Service would like to at least put off litigating them until they are applied to a project. The Supreme Court has agreed, but so far only with regard to specific legal issues. The Ninth Circuit said that since the consultation requirement was procedural rather than substantive, it could be challenged immediately.

    • The Fish and Wildlife Service required the Forest Service to “minimize harm to lynx attempting to establish or maintain home ranges in currently unoccupied secondary habitat at some point in the future, during the life of the proposed action.” ER 223. The proposed action that FWS was referring to in the quote above is the programmatic forest plan.

      If the Forest Plan has a life, is it ongoing?

  2. I was trying to use layman’s shorthand (sometimes they are also called “continuing actions”), but the relevant legal requirement is “discretionary Federal involvement or control.” If you’re disagreeing that plans have that, your disagreement is with the 9th Circuit.

    I suspect that the Forest Service would be happy to take this issue on in other circuits. When I was with the FS, there was no national policy position on this, and I saw some forests reinitiating plan consultation and some not. I think R9 had some forests that did (I’m thinking the Superior NF actually chose to reinitiate on lynx critical habitat?).

  3. Yes, you are correct about the Superior NF, but choosing to vs. being required to consult is the crux of this particular situation. And you are also correct about my disagreement with the 9th Circuit. My perspective aligns with the SUWA v. Norton Supreme Court decision (coming out of the 10th Circuit Court) as to the nature of plans and their “ongoing” or “continuing” actions.

    However, I recognize that if one looks through an ESA lens, the legal thinking is not closely aligned with the thinking associated with a NFMA lens. Just part of the complexity we need to navigate for the management of natural resources on public lands.

  4. I actually agreed with you up to a point, and I helped convince the Justice Department to defend the R1 forest in the Cottonwood case on the basis of SUWA. But SUWA was viewed through a NEPA “lens,” where plans were considered by the Court to be “complete” when adopted. And NEPA does not have the ESA language regarding “discretionary Federal involvement or control,” which defines what “complete” means for the purpose of ESA. So under different laws plans can be “complete” or not. (I don’t know why anyone would think that is complex 😉

  5. Steve,

    I disagree with the article’s characterization.

    The Court ruling does not allow “anyone to sue.” A person still has to have standing to sue. To have standing, a person has to be injured. How does a Forest Plan cause injury, you ask? Well, how does a forest plan cause harm to Canada lynx? It doesn’t, you exclaim! I disagree. The lack of standards in the Forest Plans is the only reason why lynx were put lynx on the list.

    I would also add that Cottonwood has been talking to Montana Fish, Wildlife and Parks to develop a timber project that would allow bighorn sheep to be reintroduced onto Bighorn Mountain. I’m hopeful that we can now talk to the Forest Service to help on a collaborative project to protect small Montana communities and wildlife.

    • Steve,

      I posted a similar comment on Bloomberg’s “Big Law Business” article that you excerpted from. They didn’t post it. Can you ask them to post my comment so that we can have a fair and balanced conversation?

      Thank you,

      • John, I’m not clear about what you’re asking. I have nothing to do with Bloomberg, but if you want to post here, by all means do so. — Steve

          • I don’t know — I posted it here because several folks on this blog do know, and some have added their valuable perspectives to this thread. FWIW, there are 3 paragraphs in the article devoted to the topic — hardly exhaustive.

  6. Saber rattling on this in Congress:

    On the other hand, on October 6, the Montana Federal District Court determined that even though the Forest Service had not reinitiated consultation on the Lolo forest plan for lynx critical habitat, the Colt-Summit project could proceed (Friends of the Wild Swan v. Garcia).

    This case is I think the first to definitively say that project consultation is an adequate substitute for forest plan consultation. The court found plan consultation unnecessary in this case because,
    “the agencies considered lynx populations and movements outside the Project area, … and habitat features throughout the area surrounding the Project… to conclude that the Project area was not “high quality lynx habitat,…””

    I think this is probably the correct result, but I don’t really like the reasoning. It’s correct because they looked at the PCEs and determined that it wasn’t really lynx habitat, so its value as critical habitat could not be adversely modified. There is no need for plan consultation in such situations.

    It is somewhat correct in suggesting that broader-scale analysis is needed where forest plan consultation has not occurred. However, the analysis done here was not equivalent to what is needed at the plan level.

    According the Ninth Circuit, to analyze lynx impact, the Forest Service must look at the lynx guidelines in forest plans “that were completed before critical habitat was designated on National Forest land,” to determine if they remain valid. The district court did not discuss the possible invalidity of those guidelines or whether this project and project consultation relied on them. If critical habitat had been more of an issue in this project area, the analysis done for the project would not have been sufficient to substitute for plan consultation.

  7. After the Supreme Court decided to not hear this case, the Ninth Circuit just affirmed the injunction of two timber sales on the Gallatin National Forest that were actually in lynx critical habitat and that had actually relied on a forest plan that was “completed before critical habitat was designated on National Forest land.”


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