Endangered Species Law & Policy

On June 17, 2015, the U.S. Court of Appeals for the Ninth Circuit ruled that the U.S. Forest Service (Service) violated section 7 of the Endangered Species Act (ESA) by failing to reinitiate consultation with the U.S. Fish and Wildlife Service (FWS) regarding the impacts of a revised critical habitat designation on the Canada lynx (Lynx canadensis).  Cottonwood Environmental Law Center v. U.S. Forest Service, No. 13-35624 (9th Cir. Jun. 17, 2015) (pdf).  The Canada lynx was listed as threatened in 2000, and a limited amount of critical habitat was designated for the species in 2006, which did not include any National Forest System land.  Subsequently, the Service issued guidance for its land management and permitting activities—referred to as the Lynx Amendments—upon which it consulted with FWS, resulting in a determination that the guidance did not jeopardize the species.  When agency misconduct and flaws were discovered in the critical habitat designation process, FWS revised the critical habitat designation upward from 1,841 to 39,000 square miles, including land in eleven National Forests.  The Service then declined to reinitiate consultation with FWS on the Lynx Amendments.  An environmental group challenged this decision, alleging that the Service’s failure to consult violated section 7 of the ESA.  The plaintiffs sought reinitiation of consultation on the Lynx Amendments, which were incorporated into the Forest Plans for eighteen National Forests, as well as injunctions on two projects for which the biological opinions were informed by the Lynx Amendments.

Upholding the decision of the U.S. District Court for the District of Montana, the Ninth Circuit held that the revised designation of critical habitat for the Canada lynx required reinitiation of section 7 consultation on the Lynx Amendments.  The Court determined that, due to the designation of new critical habitat and the Forest Service’s retention of discretionary involvement and control over the Forest Plans, reinitiation of consultation with FWS was required.  However, the Court declined to enjoin the projects, based on an analysis of two U.S. Supreme Court decisions that the Court interpreted as overruling Ninth Circuit precedent, Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1985), which established a presumption of irreparable injury in cases involving ESA procedural violations.  Interestingly, the two cases relied upon by the Ninth Circuit—Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), and Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010)—both arose under the National Environmental Policy Act (NEPA), which the Court analogized to procedural ESA cases, concluding that Thomas had been overturned.  Ultimately, the Court held that there is no presumption of irreparable injury when there has been a procedural ESA violation, and plaintiffs must show irreparable injury to justify injunctive relief.  Because the Court’s decision altered long-established Ninth Circuit precedent, the Court remanded the case to allow the plaintiffs to make the necessary showing.