From our friends at Healthy Forests, Healthy Communities:
The so-called “Cottonwood” case is bringing desperately-needed forest projects to a halt. If it’s not fixed, the decision will threaten rural jobs, recreation and a variety of forest activities. A bipartisan effort in Congress is underway to reverse this disastrous decision. We need your help to pass it!
Last Fall the U.S. Supreme Court declined to hear the 9th Circuit case that effectively orders the U.S. Forest Service to re-initiate consultation with the U.S. Fish and Wildlife Service (FWS) at the programmatic (plan) level following the 2009 designation of critical habitat for the Canada lynx. The case stems from a lawsuit against a forest project intended to protect a watershed in Southwest Montana.
The case centered on the Canada lynx, a cousin to the bobcat and a threatened species under the ESA. In 2006, FWS designated 1,841 square miles of land as critical habitat to the Canada lynx. However, none of that land was National Forest land, effectively exempting National Forest land from section 7 consultation.
In 2007, USFS adopted the Northern Rocky Mountains Lynx Direction (Lynx Amendments), which set specific guidelines for permitting activities determined to have an adverse effect on Canada lynx. USFS initiated section 7 consultation with FWS to insure that any action taken would not adversely affect any endangered or threatened species, and FWS issued a Biological Opinion (BiOp) that determined that the management direction in the Lynx Amendment did not jeopardize the Canada lynx. In particular, the BiOp stated that no critical habitat was designated for the Canada lynx on federal lands, necessarily resulting in FWS concluding that no Canada lynx would be affected on federal land.
Four months later, FWS announced that its critical habitat designation was improperly influenced by a previous employee, and as a result might not be scientifically accurate. In 2009, FWS revised its critical habitat designation from 1,841 to 39,000 square miles, and included eleven National Forests. Despite this significant change and addition of critical habitat in National Forests, USFS declined to reinitiate section 7 consultation with FWS on the Lynx Amendments.
Subsequently, Cottonwood brought action against USFS. The district court ruled that USFS violated the ESA, but declined to provide injunctive relief. On appeal, the Ninth Circuit considered whether Cottonwood had standing to sue, whether the lawsuit was ripe for review, whether failing to reinitiate in section 7 consultation violated the ESA, and whether the Ninth Circuit could provide injunctive relief. The majority of the Ninth Circuit held that Cottonwood had standing to sue, the issue was ripe, and USFS violated the ESA. However, the Ninth Circuit affirmed the district court’s denial of injunctive relief.
The decision is not about protecting vulnerable wildlife species, it’s about process and courtroom litigation. It could allow anti-forest management groups to secure injunctions anywhere there is a listed species or critical habitat designation, and force the Forest Service and Fish and Wildlife Service to engage in the lengthy, costly process of ESA “consultation.” This consultation would not be about specific projects, but rather about the underlying forest plan, even if that plan is a decade old or more.
The 9th Circuit alone has 11 pending lawsuits and 26 pending “Notices of Intent to Sue” over Endangered Species Act consultations. According to the U.S. Forest Service, 80 vegetation management projects and hundreds of millions of board feet are at risk due to Cottonwood. We need the Forest Service to do more forestry work, not more paperwork. It’s yet another reason why Congress needs to do its job and bring sanity to federal land management.