Endangered Species Law & Policy

In Conservation Congress v. Finley, 2012 U.S. Dist. LEXIS 61634 (May 2, 2012), plaintiffs challenge agency decisions that authorize the Beaverslide Timber Sale and Fuel Treatment Project located in the Six Rivers National Forest in northern California on the grounds the project violates the Endangered Species Act (ESA), National Environmental Policy Act, and National Forest Management Act.  Among other things, plaintiffs allege that the Forest Service unlawfully failed to reinitiate consultation with the Fish and Wildlife Service under section 7(a)(2) of the ESA.  After plaintiffs propounded discovery with respect to the failure to reinitiate claim, federal defendants sought a protective order.  Federal defendants advanced numerous arguments including the contention that the Administrative Procedure Act (APA) governs plaintiffs' failure to reinitiate claims even if it does not govern failure to consult claims in light of Washington Toxics Coalition v. Environmental Protection Agency, 413 F.3d 1024, 1030 (9th Cir. 2005).  In an eight-page order (pdf), the court rejected defendants' arguments noting that it cannot "discern a material, principled reason to distinguish between failure-to-consult and failure-to-reinitiate-consultation cases."  This decision reaffirms the fact that the federal government cannot use the APA to straight-jacket the judiciary when it reviews failure to act claims.