Excellent article about Cottonwood by Joshua Murdock of the Missoulian. with a flowchart! Very comprehensive.
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Excellent article about Cottonwood by Joshua Murdock of the Missoulian. with a flowchart! Very comprehensive.
This article is behind a paywall – can someone please post it here?
Here you go..
“Complicated legal decisions often get reduced to a single word. For abortion, it’s “Roe” or “Dobbs,” referring to the court case that changed the law. In forestry, the word is “Cottonwood.”
The Cottonwood decision came in a case that originated in Montana, Cottonwood Environmental Law Center v. U.S. Forest Service. Over the past eight years it has grown into perhaps the most controversial ESA court decision not just in the West, but also in Washington, D.C.
It boils down to this: When new information is discovered about a plant or animal protected by the Endangered Species Act, or a species gets listed under the act, how should that be taken into account by the federal land-management agencies responsible for helping those species recover?
Federal agencies, environmental groups, industry groups, attorneys and lawmakers are still grappling with that question. Even with the Endangered Species Act (ESA) set to turn 50 this year, courts can’t decide, either.
A federal appeals court covering most of the American West came to one conclusion, known as the “Cottonwood decision,” in 2015: The new information should go into top-level planning right away. But the appeals court covering the rest of the West came to the opposite conclusion back in 2007: The new information should be considered when analyzing individual projects — which wasn’t in dispute — but it needn’t be incorporated into overarching management plans right away. The U.S. Supreme Court declined to settle the difference.
The Cottonwood case’s ultimate resolution, an opinion from a 9th Circuit Court of Appeals panel in Portland, Oregon, determined that national forests needed to reevaluate their top-level management plans, known as forest plans, any time new information about an endangered or threatened species came to light, any time a new species was listed under the ESA, or any time new critical habitat was designated for a listed species.
A forest plan is the overarching document that outlines objectives and guides decision-making by Forest Service officials. The agency develops a forest plan for each of its units, or national forests. The plan is a framework for how agency officials address everything from plant and animal diversity on the landscape to how a specific area is prioritized for recreation access, logging or conservation. It can guide which areas receive more, or less, active management. The plan is like a zoning code for the national forest; it does not propose, approve or deny specific projects, but it can block certain activities from specific areas to achieve a management goal. In Missoula, the Lolo National Forest is rewriting its decades-old forest plan this summer.
Some stakeholders, including many environmental and wildlife groups, maintain that the Cottonwood decision was the correct interpretation of the ESA and ensures that the most up-to-date information will guide agency actions that flow out of their forest plans.
Opponents of Cottonwood argue that it’s duplicative and time-consuming to rework forest plans to reflect the new information because individual projects will be analyzed with the new information. That amounts to resource-consuming red tape holding up forest thinning and logging projects — work they say is critical to enhancing habitat and reducing wildfire risk across the West.
And rather than re-fight the battle in court, Montana’s entire congressional delegation has rallied other senators and representatives to pull the legal stuffing out of Cottonwood.
Redundant or efficient?
Calling Cottonwood’s provisions “unnecessary and redundant,” the logging trade group American Forest Resource Council in 2016 wrote to Congress saying that “An enormous amount of time and agency resources will be consumed performing ESA consultations on existing forest plans, rather than reviewing pending projects to reduce the risk of wildfire, improve wildlife habitat, or maintain access to our public lands. This will have a crippling impact on federal land management activities across the West while providing no conservation benefits to listed species.”
Forest Service leaders have testified to Congress that the decision created redundant bureaucracy that delays projects. But, according to the Congressional Research Service, there’s no comprehensive data on how long projects take or how many are held up by the decision, so it’s tough to gauge the decision’s impact. Looking at the amount of timber harvested each year from 2015–21, the service was unable to show a difference in the overall timber sold or harvested by unit on forests governed by Cottonwood and those not governed by Cottonwood.
Download PDF Cottonwood ESA Analysis, Congressional Research Service
Mike Garrity, executive director of Alliance for the Wild Rockies, said Friday that he was “thrilled” with the original decision and believed it vital to recovering protected species. He also said it’s more efficient to incorporate new information into overarching forest plans that guide individual projects: “If they just consult on the forest plan and get it over with, it’s just more efficient than dealing with it for every project that comes up.”
Kristine Akland, Northern Rockies senior attorney at the Center for Biological Diversity, said Friday that many cases her group wins to order the Forest Service to update its plans in response to new information don’t even rely on Cottonwood. They simply rely on the ESA itself, which the 9th Circuit has held in other cases to require such plan updates.
Canada lynx
A proposed logging project close to Yellowstone National Park that includes some Canada lynx habitat has been halted by a judge’s ruling.
NATE BERG, USFWS
Lynx link
The Cottonwood case’s roots stretch back to 2000, when FWS listed Canada lynx as a threatened species under the ESA. In 2006, the service designated critical habitat for lynx, but did not include any Forest Service lands. The Forest Service adopted the so-called Lynx Amendments that set standards for permitting activities that could harm the species. The agency consulted the Fish and Wildlife Service, which determined that the Lynx Amendments did not jeopardize the species.
But four months later, FWS officials announced lynx critical habitat maps were “improperly influenced” by then-Deputy Assistant Secretary of the Interior Julie MacDonald, who had since resigned after a government investigation found she had modified multiple ESA decisions to favor land developers and the agenda of the George W. Bush presidential administration.
By 2009, the Fish and Wildlife Service revised lynx critical habitat from 1,841 square miles to about 39,000 square miles — including national forest land near Bozeman proposed for logging and forest thinning. But despite the new information of drastically expanded critical habitat, the Forest Service declined to reinitiate consultation with FWS to reflect that information in forest plans.
In 2012, the Bozeman-based Cottonwood Environmental Law Center sued. U.S. District Court in Missoula ruled that the Forest Service should reinitiate consultation. On appeal, the 9th Circuit Court affirmed that ruling, which became the Cottonwood Decision.
Download PDF Cottonwood Decision Flowchart
Missoulian graphic by Joshua Murdock
Exemptions expire
Congress applied some exemptions to Cottonwood’s requirements in 2018, and FWS tweaked the exemptions in 2019. But most of the changes expired this past March. The Cottonwood ruling also applied to Bureau of Land Management field office resource management plans, but those were exempted by Congress and agency action in 2018 and ’19. Most of Montana’s congressional delegation — Sens. Steve Daines and Jon Tester, and Rep. Matt Rosendale — are sponsoring legislation to fully undo the decision beyond the 2018 exemptions. Similar efforts in recent years have failed.
The Cottonwood decision applies in the 9th Circuit states: Montana, Idaho, Washington, Oregon, Nevada, California, Arizona, Alaska. The conflicting 2007 decision came from the 10th Circuit, which covers Wyoming, Utah, Colorado, New Mexico, Kansas and Oklahoma. Together, Cottonwood applies to 123 million acres across 128 national forests, or about 64% of National Forest System land in the U.S., according to the Congressional Research Service. The conflicting 10th Circuit decision applies to far less land: 42 million acres across 57 national forests, or just 22% of National Forest System land.
That meant that across almost two-thirds of the acreage administered by the Forest Service, a total of 128 forest plans may have to be routinely updated whenever any of four “triggering actions” stipulated in the ESA occurs:
1. The amount or extent of harm to a protected species exceeds what FWS anticipated when it analyzed an agency action.
2. New information on a protected species or an agency action uncovers negative impacts to the species or its habitat that were not previously considered.
3. An agency action is modified to the extent its effects on a protected species or its habitat are beyond what was initially considered.
4. A new species is listed as protected, or new critical habitat is designated for a species, that could be affected by an agency action.
Under Cottonwood, any of those triggering actions require that the Forest Service reinitiate consultation with FWS to incorporate the new information into the forest plan of applicable national forests. That means FWS assesses the plan in light of the new information and issues a biological opinion detailing if or how the plan may affect protected species and their critical habitat.
In 2018, Congress passed provisions in an omnibus bill to limit the fourth trigger — new species or new critical habitat — to only apply if a forest plan is more than 15 years old and if five years has passed since the species was listed or critical habitat designated. And, further, Congress exempted all forest plans, species and habitat from that trigger until March 23, 2023. That means that Cottonwood has slightly more effect since late March, but only for old forest plans and listings of species or habitat. In 2019, FWS implemented rules that forest plans are only subject to reinitiating consultation for new species or habitat if actions authorized by the plan are not subject to project-level consultation.
Download PDF Cottonwood v. USFS Decision
But Cottonwood’s requirement to reinitiate consultation when new information about a species, or about an action’s impacts on a species or its habitat, still stands.
Circuits break
Although the Cottonwood decision required reinitiating consultation on all four triggers, it didn’t have much effect on two of them, according to the Congressional Research Service, which produced a 22-page report on the decision in 2022. Forest plans are generally not subject to FWS analysis of “incidental taking,” or expected but unintentional harming or killing of protected species, and therefore wouldn’t be subject to reinitiated consultation based on taking levels. Also, the report stated, Cottonwood is redundant on the third trigger action — action modification — because a separate law from the ESA, the National Forest Management Act, already mandates that the Forest Service must consult FWS when revising forest plans.
But Cottonwood did affirm ESA language requiring that the Forest Service must reinitiate consultation when new information on a species or action comes to light, or when a new species is listed or new critical habitat designated — the latter two of which were subject to some Congressional exemptions.
The 10th Circuit ruled in 2007 that reinitiating consultation for forest plans isn’t necessary on any of the four triggers because approved forest plans are completed actions. The 10th Circuit based its decision in part on the 2004 Supreme Court case Norton v. Southern Utah Wilderness Alliance, in which the court ruled that the National Environmental Policy Act (NEPA) requires reinitiating consultation for ongoing agency actions upon any of the four triggers — but that completed forest plans (and BLM management plans) are not ongoing agency actions.
In Cottonwood, the 9th Circuit pointed out that, unlike NEPA, the ESA requires reinitiating consultation not only on ongoing actions, but also on any action in which the agency is still involved and retains authority over — such as a forest plan, completed or not.
Legislative ‘fix’
Montana’s congressional delegation has for years aimed to undo the Cottonwood decision, starting with bipartisan legislation introduced by Tester, a Democrat, in 2016. Lawmakers pledged to “permanently fix” the decision with bills that undermine parts of the 9th Circuit opinion’s legal foundation.
The Forest Information Reform Act (HR 200) introduced by Rosendale and sponsored by four fellow Republicans, would amending federal law to state that completed forest plans are not subject to reinitiating consultation when a new species is listed, new critical habitat designated, or new information about a species or an actions impacts come to light. That would preclude the two ESA triggers Cottonwood had bolstered. Rosendale’s bill also applies to the BLM.
“The Cottonwood decision has been weaponized by radical environmental groups to use the Endangered Species Act to prevent proper forest management,” Rosendale said in a statement after introducing the bill. “The FIR Act is a common-sense solution that would prevent the Forest Service from facing a perpetual cycle of litigation and allow them to chart a new era of efficiency, which will benefit Montanans and those across the nation.”
Bozeman-based Property and Environment Research Center, which advocates for free-market environmental solutions rather than government regulation, supports the bill. The Rocky Mountain Elk Foundation also supports the bill.
Senate Bill 1540, introduced by Daines, a Republican, and co-sponsored by Tester, would amend federal law to state that completed forest plans are not ongoing agency actions and that the Forest Service lacks discretionary control over and involvement with completed plans. Such language would undo Cottonwood by legislatively undercutting the 9th Circuit’s opinion that the Forest Service is still involved in and has authority over forest plans, and therefore the plans are subject to reinitiating consultation. Sens. Jim Risch and Mike Crapo, Republicans from Idaho, and Maine’s Sen. Angus King, an independent, are also sponsoring the bill. That bill also applies to the BLM.
Upon signing on as a co-sponsor in May, Tester said in a statement, “After taking feedback from Montanans, it’s clear that we need a permanent fix to the Cottonwood decision that will reduce time-consuming bureaucratic paperwork, work for wildlife, and protect Montana’s robust resource economy.”
Both bills have cleared committees and were referred to the full House and Senate, respectively.
In response to Tester’s support of Daines’ bill, the Sierra Club said the bill would set a “dangerous precedent” and that it would “remove an essential tool in the Forest Service’s toolbox to protect imperiled species from ever-changing climate conditions and dwindling habitat.” ”
Joshua Murdock covers the outdoors and natural resources for the Missoulian.
This started as a response to this post, but it turned into an op-ed for the Missoulian, which I am including in full in quotes, plus some additional thoughts at the end. https://missoulian.com/opinion/column/jonathan-haber-cottonwood-rule-remains-useful/article_05d06d60-1c32-11ee-a424-13efe0e92676.html
“The Missoulian (June 25) provided an in-depth article on the “Cottonwood” decision by the 9th Circuit Court of Appeals. The court concluded that the U. S. Forest Service must reinitiate consultation on the effects of national forest land management plans with the U. S. Fish and Wildlife Service when new critical habitat is designated for a species listed under the Endangered Species Act (Canada lynx, in this case). Supporters of a legislative “fix” argue that these requirements are “unnecessary and redundant,” and have a “crippling impact.” However, there is more to this story. In particular, the article failed to explain why individual projects would be delayed by consultation on a forest plan, which suggests that those trying to solve the problem may not really understand it.
The Cottonwood case did not break new ground. It followed the 9th Circuit’s Pacific Rivers Council decision that required reinitiation of consultation on forest plans when a new species is listed (in that case, salmon). That court also determined that some projects implementing a forest plan, timber sales in particular, must be stopped while consultation occurs on the plan. This delay resulted from §7(d) of the ESA, which prevents parts of a proposed action from going forward during consultation if they would foreclose changes in the decision that the consultation might later determine are necessary to comply with the ESA. While not stated in its opinion, the court must have assumed that projects implementing a forest plan are parts of a forest plan. However, the National Forest Management Act, its implementing regulations and agency practice make it clear that plans and projects are two distinct decisions.
Consequently, it would be less disruptive for Congress to simply clarify this fact in relation to ESA consultation by overturning that aspect of the Pacific Rivers Council and Cottonwood cases. The result would be that the Forest Service would have to reinitiate consultation on forest plans as required under current regulations, but projects could proceed while forest plan consultation is occurring (after appropriate consultation on the project). (This would also correct the 10th Circuit’s position, mentioned in the Missoulian article.)
Opponents also claim that reinitiating consultation on a forest plan is a waste of the agencies’ resources. This is not supported by the facts. In terms of both wildlife biology and agency efficiency, it makes much more sense to consider the effects on conservation and recovery of a species as a whole (which is what ESA consultation does) for a single long-term, large-landscape decision like a forest plan than to use successive individual localized projects – especially for wide-ranging species like Canada lynx and salmon.
Prior consultation on forest plans may then be used to streamline consultation on individual projects using the Fish and Wildlife Service’s “tiered” consultation process. Here is how a recent biological opinion written by the Fish and Wildlife Service concluded that the Hellroaring Basin Improvement Project on the Flathead National Forest met ESA requirements for effects on lynx critical habitat: “Our conclusion is based primarily on the information presented in the biological assessment and biological opinion on the effects of the Revised Forest Plan on lynx critical habitat (USFS 2017, USFWS 2017), which set the context for the entire Flathead National Forest.” What if that forest plan consultation had not occurred or was outdated?
Interagency consultation on forest plans using the best currently available scientific information is important to the survival and recovery of many species listed under the Endangered Species Act. Congress should recognize that eliminating the requirement to reinitiate forest plan consultation is neither necessary nor desirable.”
HERE are some other thoughts. I am aware that this might feel like a “loss” for the environmental side because they can’t take down a host of projects with single lawsuit. Here’s why I don’t think that it’s a huge one. For starters it’s better than what the current legislation is proposing (which seems to have momentum), so it would be a relative “win.”
There still has to be consultation on each project that must address the new information about listed species. The forest plan and its effects can’t be ignored in this process, although it’s not clear from the ESA regulations whether a plan and project are “interrelated or interdependent” such that their effects must be considered together (in the absence of prior plan consultation), or whether a forest plan is part of the “environmental baseline.”
Note that focusing the forest plan consultation process on the adverse effects “allowed” by the plan puts a premium on mandatory standards. In addition, as forest plans are revised, they will need to meet a new requirement for beneficial effects: to “provide the ecological conditions necessary to contribute to the recovery of federally listed threatened or endangered species …” (36 CFR §219.9). Congress should also add a requirement that the listing agency concur with the Forest Service’s analysis and conclusions about a plan contributing to recovery of those species. This would support compliance with §7(a)(1) of the ESA, which requires consultation to help all federal agencies “utilize their authorities in … carrying out programs for the conservation of endangered species and threatened species …”
One reaction might be that the Forest Service could delay completing forest plan consultation indefinitely. Actually, formal consultation must be completed within 135 days of initiation unless extended by mutual agreement of the agencies. This should at least mean the listing agency would be able to determine its priorities based on risk of delay to the species. Congress could also add other incentives to complete forest plan consultation like reducing project consultation requirements where forest plan consultation is current and valid for a species, including the recovery requirement. Even better, tie this to consistency with completed recovery plans by the listing agencies (an incentive to not delay them indefinitely).