Separation of Powers in Action: The Cottonwood Fix

Indeed, the idea of separation of powers among judicial, legislative and executive branches in the US is intended to provide checks and balances. This one (the Cottonwood Fix) is a little hard to figure out unless you are familiar with the details of how ESA is carried out, that is, consulting and reconsulting on plans and projects. I used the description from an AFRC attorney in his Congressional testimony here. As always, others are free to post their own perspectives. Shorthand.. Circuits disagree, Executive branch asks Supremes, they decline and Congress fixes.

According to Fite, the fix was bipartisan

“It is no surprise that this common-sense legislation has attracted the support of lawmakers from both parties, from state and local governments, and prominent environmental groups including Trout Unlimited and the National Wildlife Federation. AFRC offers the strongest possible support, as do many industry groups including Intermountain Forestry Association, Montana Wood Products Association, California Forestry Association, and Federal Forest Resource Coalition.
In brief, S. 605 will allow projects to move forward under existing forest plans if an appropriate plan-level ESA consultation is completed. It will eliminate any requirement for the Forest Service or Bureau of Land Management to reinitiate consultation due to new ESA listings or critical habitat at the plan level—and only at the plan level. The bill does not change existing law regarding applicable requirements to consult on individual projects, new forest plans or plan
revisions. The Ninth Circuit requires consultation on new plans, while the Tenth Circuit does not. S. 605 leaves this circuit split in place.


The Obama Administration, including Secretary Vilsack, asked the Supreme Court to review Cottonwood in 2016, but was denied. That fall, the Forest Service began the arduous process of consulting on 11 National Forests and more than 35,000 square miles of lynx habitat. This July, the Forest Service completed its biological assessment—the first piece of the consultation process. It is unclear when a biological opinion will be complete at the plan level. Then, project-level analyses will have to be reviewed against the plan-level opinion. This process will not be completed in 2017 and will likely stretch well into the 2018 forest management operating season. Of course, each step will be subject to multiplying lawsuits and injunctions.

Since nearly every forestry project already undergoes ESA consultation, this plan-level exercise has no real conservation benefit. A plan-level analysis generally assesses an amount of specieswide impact that is sustainable. Projects can proceed as long as their impacts fall within the plan-level approved impacts. When a project is evaluated without plan-level clearance, there is no such buffer for the agency to rely on. Therefore, ESA consultation at the project-specific
level is likely to be more conservative.

S. 605 simply and directly fixes Cottonwood. It provides that re-initiation of plan-level consultation is not required due to a new species listing or critical habitat designation. It does not affect any applicable requirement to consult on a new plan or a significant plan revision. The bill applies to both the Forest Service and the BLM, which each manage significant forestlands.

5 thoughts on “Separation of Powers in Action: The Cottonwood Fix”

  1. FWIW:

    For Immediate Release, December 4, 2017

    Completion of Northern Rockies Lynx Analysis Discredits Montana Senators’ Rationale for Weakening Endangered Species Act

    WASHINGTON— A document recently obtained by the Center for Biological Diversity shows that an analysis of the U.S. Forest Service’s management of Canada lynx critical habitat in the northern Rockies was completed in a timely manner in mid-October, undermining the pretext for legislation aiming to weaken the Endangered Species Act.

    Sen. Steve Daines (R-Mont.) and Sen. Jon Tester (D-Mont.) introduced a bill, S. 605, to cripple the Endangered Species Act nationwide, citing delays by the Forest Service in a routine review required by the Act. But the timely completion of the lynx analysis debunks the claims about delays that underpin S. 605, and in fact shows the Endangered Species Act is working exactly as intended.

    “The so-called controversy was always a ginned-up charade to relax environmental protections for endangered species as a favor to the timber industry,” said Noah Greenwald, endangered species director at the Center. “Sadly the Forest Service was complicit in this effort to weaken endangered species protections. The completed assessment shows what a total nothing-burger this whole issue always was.”

    The analysis in question was completed by the U.S. Fish and Wildlife Service in less than four months. In contrast, the actual request from the U.S. Forest Service seeking the analysis from the Fish and Wildlife Service took twice as long to complete. The delays by the Forest Service provided the political fodder for Montana’s senators to argue for sweeping changes to the Endangered Species Act.

    For decades the Fish and Wildlife Service has required land-management agencies to reassess their actions if a new species is listed as threatened or endangered or if critical habitat is designated on these lands. The reassessments normally take a few weeks to a few months to complete.

    Despite the routine nature of these consultations, the Forest Service refused to assess the impacts of its actions on Canada lynx after critical habitat was designated in 2014, losing multiple court cases, including a failed Supreme Court appeal in October 2016. With no recourse available save a congressional bailout, the Forest Service continued dragging its feet in 2017.

    “The Trump administration seems to be deliberately dragging this out to push an agenda for weakening the Endangered Species Act,” said Greenwald. “Senator Tester’s and Senator Daines’ cynical legislation wouldn’t solve anything at all in Montana, but it would harm countless animals elsewhere, and that’s exactly what the Trump administration wants.”

  2. I agree with Sharon that this is the way government is supposed to work. I don’t agree that it produced the best answer.

    I think this whole story started with a conversation between me (working on lynx with the Forest Service in Missoula) and a Region 6 fisheries biologist in Portland whom I had worked with on bull trout in the Columbia Basin. He was concerned about having to reconsult on 22 forest plans in the northwest after bull trout critical habitat was identified. I was familiar with the relevant prior litigation suggesting that the requirement to reinitiate consultation on forest plans could be overturned.

    I think there were three main concerns. The range of bull trout is a bigger workload than typical ESA consultation, and the species is probably not as straightforward biologically for consultation as lynx. There was also a potential risk that there might be a need to amend these forest plans again based on new information (and past litigation related to bull trout). Maybe the biggest problem though was the likelihood that projects in bull trout habitat could be delayed while forest plan consultation occurred. This is what happened on hundreds of projects when salmon were listed under ESA.

    I think the Ninth Circuit was wrong in holding that projects could be enjoined while plan consultation occurred because this meant that the projects were being viewed as a part of forest plan decisions (which they are not). However, review of the effects of forest plans (or groups of forest plans) on listed species is appropriate to further the goals of ESA. As even Fite recognized, there is value to the species and to agency efficiency to understand the species-wide impact (without it, “consultation at the project-specific level is likely to be more conservative”).

    An easier fix would have been to simply clarify that projects may not be enjoined just because consultation is occurring at the plan level. (But I wasn’t able to sell this either to the Forest Service at the time or those working on the legislation later.) I would argue that the Forest Service should still consider the potential benefits of reinitiating consultation, especially for listings of new species, even if it is not required.

    • Jon – what would be those “potential benefits”? Bolstering our knowledge of the biological world, particularly for species that we are interested in recovering? (actually, this is a sincere question)

  3. I think one of the weak points of the the ESA is that it doesn’t promote meaningful cumulative effects analysis where federal projects are involved; unlike NEPA, ESA doesn’t require their effects to be considered until consultation on the future projects occurs. This allows impacts to occur up to the point of jeopardizing the species, and everything after that is shut down. This is a bigger problem for wide-ranging species affected by lots of things. Looking at effects of future management in a general way over a larger area would help avoid this, by informing the consulting agencies and getting their advice about what could be done differently. This broader view of the agency program is also what allows the consulting agencies to be more flexible with specific projects.

    Then there is recovery. Separate from ESA, the NFMA planning rule requires that forest plans contribute to recovery of listed species. They should include a conservation strategy that would accomplish this, and they should get advice from the consulting agencies about whether it does. When a new species is listed, the Forest Service is going to have to undertake this analysis, and should include the consulting agencies. (Of course, if they anticipated this by managing for viability of this species as a species of conservation concern there may be no need for changing the plan.)


Leave a Comment

Discover more from The Smokey Wire : National Forest News and Views

Subscribe now to keep reading and get access to the full archive.

Continue reading