Endangered Species Law & Policy

U.S. District Judge Gladys Kessler of the District of Columbia invalidated regulations designed to streamline the consultation process required by the Endangered Species Act (ESA) in preparing fire management plans. The judge found (pdf) that there was no evidence in the record that the ESA consultation process actually resulted in any delay to any National Fire Plan project.

The regulations were originally issued in 2003 (pdf) by six federal agencies, including the Bureau of Land Management, the U.S. Fish and Wildlife Service (FWS), the National Park Service, the Bureau of Indian Affairs, the Forest Service and the National Marine Fisheries Service (NMFS). The regulations provided an alternative process for completing ESA consultation by eliminating the need to conduct informal consultation and to obtain written concurrence from FWS or NMFS for those National Fire Plan (NFP) actions that were not likely to adversely affect listed species or designated critical habitat.

The court held that the regulations were arbitrary and capricious under the Administrative Procedure Act, finding that the purported rationale for the regulations was not supported by evidence in the record. Specifically, Judge Kessler found there is undisputed evidence in the record that the pre-existing consultation procedures had, in the very recent past, been streamlined so as to expedite the processing of NFP projects without sacrificing the safeguards contained in those procedures.

Judge Kessler had upheld (pdf) the regulations in 2006, but revisited the ruling after environmental groups filed a motion for reconsideration. Judge Kessler had taken the matter under submission for six years, and apologized in a footnote for taking so long to issue the opinion.