Conservation Congress v. U.S. Forest Serv.

Under section 7(a)(2) of the Endangered Species Act, there is no duty to consider cumulative effects, and “cumulative effects” means “within the action area,” not “incremental effects” or “environmental baseline.”

Conservation Congress ("CC") sought an injunction against United States Forest Service ("USFS") and United States Fish & Wildlife Service (collectively, “Defendants”) from authorizing a timber sale known as the Mudflow Vegetation Management Project ("Mudflow Project"). CC alleged that Defendants violated section 7(a)(2) of the Endangered Species Act ("ESA") when they failed to adequately evaluate the effects of the Mudflow Project on the Northern Spotted Owl’s ("Owl") critical habitat. Under section 7(a)(2) of the ESA, federal agencies must "determine the likely effects of any proposed action on species and their critical habitat." The USFS performed a biological assessment and found that the short term effects of the Mudflow Project would degrade the Owl's foraging habitat, but in the long term, forest health would improve. Therefore, the USFS concluded that the Mudflow Project was "not likely to adversely affect the Owl or its critical habitat." The district court denied CC’s request for a preliminary injunction, and CC appealed. On appeal, CC first argued that the district court committed a legal error when it overlooked the requirement that USFS perform a “cumulative effects analysis." However, under section 7 of the ESA, "cumulative effects" means effects "within the action area," not to be confused with the National Environmental Policy Act’s "incremental effects" or "environment baseline." The Ninth Circuit determined that under the ESA, USFS was not required to consider cumulative effects. Second, CC argued that the district court committed a factual error when it accepted the Defendant's conclusion that even though the Mudflow Project would degrade the Owl's habitat, it would not have an adverse effect. The panel rejected this argument because it was unclear "that a thinning of 22 acres, out of…408 acres of the Owl’s degraded foraging habitat" means that "the Owl’s total foraging habitat would be 'adversely' modified." AFFIRMED.