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Forest Guardians v. Johanns

 

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Forest Guardians appealed a judgment, which held that the United States Forest Service (USFS) complied with the Endangered Species Act (ESA)[1] despite USFS’s failure to re-initiate consultation with the United States Fish and Wildlife Service (FWS) after deficiently monitoring grazing utilization levels on pastures in the Water Canyon allotment within the Apache-Sitegreaves National Forests in Arizona. The Ninth Circuit reversed the district court’s judgment and remanded the case for entry of summary judgment in favor of Forest Guardians, holding that USFS’s failure to re-initiate consultation violated the ESA because the promulgated regulations require consultation when agency action is changed, and that change could affect an endangered species or habitat in ways not previously considered.[2]

Section 7 of the ESA prohibits government agencies from undertaking actions that would pose a risk to the continued existence of endangered species or their habitat.[3] To ensure compliance, agency actions undertaken in an area where a listed endangered species may be present are subject to inter-agency consultation,[4] either formal[5] or informal.[6] An agency does not have to enter the more rigorous formal consultation with FWS if the agency conducts informal consultation that indicates “the [agency] action is not likely to adversely affect listed species or critical habitat.”[7] However, the court discussed two relevant circumstances in which informal consultation must be re-initiated: (1) “If new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered,”[8] or (2) “If the identified action is subsequently modified in a manner that causes an affect to the listed species or critical habitat that was not considered in the biological opinion.”[9]

The court next turned to the factual and procedural background. In 1997, Forest Guardians brought suit challenging USFS’s issuance of over a thousand grazing permits allowing grazing on allotments on national forest land in Arizona and New Mexico, and alleging USFS did not consult with FWS as required by the ESA prior to granting the permits. Following the 1997 suit, USFS and FWS created guidance criteria for reviewing USFS management of the targeted land allotments. Meeting the criteria allowed USFS to presume a FWS finding of “not likely to adversely affect listed species or critical habitat.” The Water Canyon Allotment, which covers 52,000 acres of the Apache-Sitgreaves National Forest in Arizona, was one of the allotments for which USFS and FWS established guidance criteria. The Water Canyon criteria required USFS to monitor the use levels of each grazed pasture halfway through the grazing period. Additionally, the guidance criteria recommended that USFS monitor the utilization level in the pastures at the beginning and end of the grazing periods. If USFS confirmed each year that the guidance criteria were being met, it could presume an FWS finding that grazing in the Water Canyon allotment was “not likely to adversely affect listed species or critical habitat.” With the guidance criteria in effect, USFS granted Water Canyon grazing permits on June 11, 1999. However, USFS monitored only one pasture in 1999 and 2000, two in 2001, and one in 2002, while three or more were grazed in each of those years. The results revealed higher utilization levels than permitted in three instances. Nevertheless, USFS and FWS did not re-initiate consultation and USFS continued to enter annual findings on behalf of FWS that grazing in Water Canyon was “not likely to adversely affect listed species or critical habitat.”

Forest Guardians brought this lawsuit in April 2001, alleging that USFS violated the ESA by not re-initiating consultation after failing to adequately monitor numerous grazed allotments. More specifically, Forest Guardians alleged that USFS’s failure to monitor utilization levels on various grazing allotments, including Water Canyon, invalidated FWS’s annual concurrence that the grazing was “not likely to adversely affect listed species or critical habitat.”

The district court found that the ESA and its promulgated regulations did not require re-initiation of consultation between the agencies because the total number of cattle pairs grazing the pastures was lower than allowed. Thus, the district court reasoned, the lower cattle pair levels supported a finding that grazing in Water Canyon was “not likely to adversely affect listed species or critical habitat” despite the USFS’s deficient monitoring.[10]

The Ninth Circuit first addressed whether the case had become moot because USFS and FWS had re-initiated consultation.[11] A case is moot if there is no longer a controversy,[12] but a case is not moot if “any effective relief may be granted.”[13] The party claiming mootness has the burden of showing that the court cannot provide an effective remedy.[14] The Ninth Circuit stated that the present case dealt with a continuing practice; that is, to allow grazing to continue on the Water Canyon allotment for the remainder of the ten-year permit USFS needed to receive an annual FWS finding of “not likely to adversely affect.”[15]  Additionally, the court noted the high likelihood of USFS’s not meeting the future monitoring requirements despite the agencies’ re-initiation of informal consultation. The court then determined that declaratory judgment was an effective available remedy to Forest Guardians, because declaratory judgment would prohibit the Forest Service from violating the ESA for the remaining years of the permits on the allotment.[16]

The court then turned to the central issue, whether USFS violated section 7 of the ESA by not re-initiating consultation with FWS following USFS’s inadequate monitoring.[17] The ESA’s promulgated regulations require agencies to re-initiate consultation if an agency changes its actions in a way not previously considered that may impact a listed species or critical habitat.[18] The agency is charged with showing that the agency action is “not likely to adversely affect listed species or critical habitat.”[19] In drawing an analogy between the present case and Sierra Club v. Marsh,[20] the Ninth Circuit reasoned that proper monitoring of the utilization levels of the pastures in the Water Canyon allotment was necessary to a FWS finding that grazing was “not likely to adversely affect listed species or critical habitat.” Because USFS’s failure to monitor the utilization levels affected listed species “in a way or to a degree not previously considered,” USFS and FWS were required to re-initiate consultation.

The Ninth Circuit rejected USFS’s argument that its failure to monitor the utilization levels was a “minor dispute” that did not require re-initiation of consultation.[21] The court stated that sufficient monitoring of utilization levels was central to FWS’s determination of “not likely to adversely affect listed species or critical habitat.” To support its proposition, the court pointed to a USFS memorandum stating the critical link between monitoring and agency determinations. The Ninth Circuit also looked to Gifford Pinchot Task Force v. United States Fish & Wildlife Service[22] to support its position that affirmative evidence showing ineffective monitoring can invalidate agency conclusions. The Ninth Circuit then considered the USFS monitoring record, which revealed incomplete monitoring and over-utilization, and determined that the evidence was sufficient to invalidate the agency’s “not likely to adversely affect” conclusion on the Water Canyon allotments.

The Ninth Circuit also rejected USFS’s argument that the monitoring requirements under the guidance criteria were “unreasonable.” The court rejected this argument principally because USFS and FWS had designed the guidance criteria and jointly agreed that compliance with the monitoring standards and conforming utilization levels were pre-requisites to an FWS finding that grazing was “not likely to adversely affect listed species or critical habitat.”

Finally, the Ninth Circuit rejected USFS’s argument that the district court was correct in finding that a lower number of cattle grazing the pastures would result in acceptable utilization levels. The Ninth Circuit stated that there was no evidence in the record to support the correlation between the number of livestock grazing a pasture and the utilization level. To the contrary, the 2002 recording indicated that with only seventy-four pairs of cattle, a dozen pairs fewer than contemplated, the utilization level on two sites was nonetheless over the allowable level.

The Ninth Circuit concluded that the ESA required USFS to re-initiate informal consultation with the FWS because not only was the monitoring deficient but the results of the monitoring indicated over-utilization, which amounted to modifications to the allotment guidance criteria that may impact a listed species. While the court stated that not every departure from the Water Canyon guidance criteria required re-initiation of consultation, the court noted that the deviations before the court were numerous and material. Therefore, USFS’s failure to re-initiate consultation with FWS was a violation of the ESA. The Ninth Circuit reversed the district court’s judgment and remanded the case for entry of summary judgment in favor of Forest Guardians.


[1] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (2000).

[2] 50 C.F.R. § 402.16 (2005).

[3] 16 U.S.C. § 1536(a)(2) (2000).

[4] 16 U.S.C. § 1536(c) (2000).

[5] 16 U.S.C. § 1536(b)(3)(A) (2000).

[6] 50 C.F.R. § 402.13 (2005).

[7] Id.

[8] 50 C.F.R. § 402.16(b) (2005).

[9] 50 C.F.R. § 402.16(c) (2005).

[10] Forest Guardians v. Johanns, 450 F.3d 455, 460-61 (9th Cir. 2006).

[11] The result of the re-initiated consultation was an FWS finding that the grazing was “not likely to adversely affect” the endangered species and critical habitat within the Water Canyon allotment.

[12] Am. Rivers v. Nat’l Marine Fisheries Serv., 126 F.3d 1118, 1123 (9th Cir. 1997).

[13] Nw. Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1244 (9th Cir. 1988) (emphasis in original).

[14] S. Or. Barter Fair v. Jackson County, 372 F.3d 1128, 1134 (9th Cir. 2004).

[15] Compare S. Utah Wilderness Alliance v. Smith, 110 F.3d 724 (10th Cir. 1997) (finding a claim moot because the relevant agency undertook ESA consultation with FWS  regarding a forest management plan).

[16] See also Nw. Envtl. Def. Ctr., 849 F.2d at 1241 (determining that while an injunction was no longer appropriate to enforce a fisheries management plan because the salmon season had ended, declaratory relief was available and would ensure future compliance).

[17] The adequacy of USFS’s monitoring was not disputed by either party, and therefore not addressed by the court.

[18] 50 C.F.R. § 402.16 (2005).

[19] Endangered Species Act of 1973, 16 U.S.C. § 1536(a)(2) (2000).

[20] In Sierra Club v. Marsh, 816 F.2d 1376 (9th Cir. 1987), the plaintiffs sued the Army Corps of Engineers for refusing to re-initiate consultation with FWS when mitigation projects required by the development plan were not implemented. The court determined that the Army Corps of Engineers had violated ESA regulations because failing to implement mitigation measures could impact an endangered species in a way or manner not previously considered.

[21] See id. (noting that only the most important project modifications require an agency to re-initiate consultation).

[22] See Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059 (9th Cir. 2004) (determining the Northwest Forest Plan required species monitoring to support the no-jeopardy finding under the ESA, and absent the monitoring, there would be no basis for the finding).

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