Cottonwood Envtl. Law Ctr. v. USFS

Under the Endangered Species Act of 1973 Section 7(a)(2), consulting Federal Agencies are required to consult and explain to acting agencies, if it appears actions may affect endangered or threatened species, how the action affects the species or its critical habitat.

In 2000, the United States Fish and Wildlife Service (“FWS”) listed the Canada lynx as a threatened species under federal law. To protect the species, FWS designated a critical habitat for the Canada lynx. Subsequently, the United States Forest Service (“Forest Service”) issued standards and guidelines for that land management without jeopardizing the Canada lynx. However, FWS later discovered its designation of the critical habitat were flawed, and after re-evaluation FWS designated significant National Forest land as critical habitat. In 2012, the Cottonwood Environmental Law Center (“Cottonwood”) filed this action in district court alleging that Forest Service violated the Endangered Species Act of 1973 (“ESA”) by not reinitiating consultation. Before deciding this issue on appeal, the Ninth Circuit addressed Forest Service’s allegations that Cottonwood lacked standing and ripeness of its claim; however, the Ninth Circuit determined that Cottonwood’s claim was justiciable. Cottonwood had standing because it properly alleged procedural injuries suffered from the Forest Service’s failure to reinitiate consultation. With regard to ripeness, the Ninth Circuit held that the claim in dispute was ripe because, as a procedural injury, the claim could never get riper than at the time the failure (e.g. the failure to reinitiate consultation) took place. Moreover, the Ninth Circuit affirmed that Forest Service violated the ESA when it failed to reinitiate consultation after FWS discovered its designation of critical habitat on National Forest land was flawed because the language of the ESA is express, rather than merely precatory, requiring consulting agencies to consult action agencies about how its actions affect species or critical habitats if actions appear to be affecting endangered species. Finally, the Ninth Circuit determined that Cottonwood should have the opportunity to prove irreparable injury. AFFIRMED and REMANDED.