Home » Case Summaries » 2002 » Southwest Center For Biological Diversity v. United States Forest Service


Southwest Center For Biological Diversity v. United States Forest Service



Forest Guardians and the Center for Biological Diversity[1] (collectively the Center) sought an injunction against the United States Forest Service (USFS) to stop grazing in certain allotments of land in the southwestern United States because of its impact on the loach minnow (Tiaroga cobitis), a species listed as endangered under the Endangered Species Act (ESA).[2] The Center argued that USFS violated section 7 of the ESA[3] by allowing grazing in the allotments prior to concluding consultation with the United States Fish and Wildlife Service (FWS) concerning the effect of grazing on the loach minnow. New Mexico Cattle Growers’ Association and Arizona Cattle Growers’ Association intervened in the suit. The district court ruled that although USFS violated section 7 of the ESA by failing to complete consultation on certain allotments, grazing did not cause irreparable harm to the loach minnow, and thus an injunction was not required. The Ninth Circuit affirmed, ruling that despite the general rule requiring an injunction for a substantial procedural ESA violation, a “narrow exception” applied in the case of non-jeopardizing activities.[4] For such activities, section 7(d)[5] requirements controlled whether the agency would continue the activity during consultation, provided the activity did not violate other ESA provisions. The Ninth Circuit explained that the district court had determined that grazing during consultation would not substantially impact the loach minnow. Considering section 7(d), the Ninth Circuit concluded that USFS did not make an irretrievable commitment of resources that would foreclose reasonable and prudent alternatives. Thus, grazing in the project area could continue until the agency completed formal consultation.

The Ninth Circuit initially outlined USFS’s obligations under section 7 of the ESA. Under section 7(a)(2), federal agencies must “insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species.”[6] Federal agencies must determine whether their actions will jeopardize a listed species through consultation with either FWS or the National Marine Fisheries Service. If formal consultation is necessary and initiated, FWS must issue a Biological Opinion determining whether the activity will jeopardize the species at issue, and if so, if there are reasonable and prudent alternatives to avoid jeopardy.[7] In addition, section 7(d) of the ESA requires that after federal agencies initiate formal consultation, agencies must not make any “irreversible or irretrievable commitment of resources” that might foreclose “reasonable and prudent alternative measures.”[8] The district court made a finding of fact that USFS failed to complete consultation with FWS on certain allotments, but did not issue an injunction restricting grazing until completion of consultation, finding no threat of irreparable harm and that a balancing of the equities weighed in favor of USFS.

For injunctions under the ESA, Tennessee Valley Authority v. Hill (TVA)[9] alters the traditional test by limiting courts’ discretion to balance the hardships when considering issuing an injunction. The court explained that the test for injunctions for violations of the ESA is whether the moving party can show a likelihood of success on the merits and a showing of irreparable injury.[10] The Center relied on the Ninth Circuit’s decision in Thomas v. Peterson [11] to argue that an injunction against USFS was required because a court must not consider irreparable harm when an agency commits a substantial procedural violation of the ESA. In Thomas, the court reasoned that the remedy for a substantial procedural violation of the ESA must be an injunction of the federal project.[12] Similarly, the United States District Court for the Western District of Washington held in Greenpeace v. National Marine Fisheries Service [13] that failure to comply procedurally with section 7 of the ESA triggered an injunction regardless of whether plaintiffs could prove future harm.[14] In addition, the Ninth Circuit followed the Supreme Court’s decision in TVA when it ruled in Biodiversity Legal Foundation v. Badgley [15] that injunctions must issue for violations of section 7 of the ESA.[16] The court emphasized its holding in Badgley that substantial compliance with ESA procedures was necessary to effectuate congressional intent.[17]

The Ninth Circuit relied on the district court’s determination that USFS did not complete consultation on several allotments, to find that the Center satisfied the “success on the merits” requirement for an injunction.[18] Nonetheless, the court concluded that USFS’s actions did not constitute a “substantial procedural violation”[19] of the ESA because the case fit into a narrow exception under the court’s decision in Sierra Club v. Marsh.[20] The Ninth Circuit stated that Marsh “support[ed] a conclusion that non-jeopardizing agency action may take place during the consultation process in light of the protections of section 7(d) where the action will not result in substantive violations of the act.”[21] The court distinguished Thomas because in that case there was no evidence to determine whether the action would cause jeopardy to the species. Here, however, the agency and the court could evaluate the effects of grazing on the loach minnow because cattle were currently grazing in the project area. Further, by implementing measures to minimize the effects of grazing, USFS fulfilled the purpose of the ESA to protect endangered and threatened species. As a result, the court concluded that USFS substantially complied with section 7(a) of the ESA, and only the requirements of section 7(d) applied. Reasoning that USFS did not make an irretrievable commitment of resources to the project because livestock grazing is “flexible and can be altered,” the Ninth Circuit concluded that USFS did not violate section 7(d).[22] Given the absence of adverse effects on the loach minnow in the project area, the court concluded that the district court’s balancing of the equities was only “harmless error.”[23]

The court then dismissed as moot the Center’s claims regarding six allotments because USFS completed ESA consultation. Under the mootness doctrine, a court may not review a case if no live controversy exists. The court acknowledged the Supreme Court’s exception to mootness for cases in which the action is “capable of repetition but evades review.”[24] However, the court concluded that because consultation was still incomplete for three grazing allotments, there was a live controversy as to these allotments and the whole case was not moot.

The court finally rejected the cattle growers’ cross-appeal that the Center failed to satisfy the sixty-day notice requirement of the ESA’s citizen suit provision[25] for claims in its amended complaint, and that the court therefore lacked jurisdiction to hear the case. One of the Center’s additional claims challenged the adequacy of FWS’s biological opinion on the effects of grazing on the loach minnow. The court relied on the Supreme Court’s decision in Bennett v. Spear,[26] in which the Court held that challenges to biological opinions are properly pled under the Administrative Procedures Act[27] (which does not have a sixty-day notice requirement) rather than the ESA’s citizen suit provision.[28] Further, the court declined to dismiss the Center’s claim challenging USFS’s findings during consultation, which also lacked notice. The court reasoned that the process for making findings during consultation is part of the consultation process. Explaining that because the Center properly noticed USFS’s failure to consult regarding the loach minnow, USFS was on notice as to subsequent claims challenging the legality of the consultation process. As a result, the court concluded that the Center satisfied the ESA’s notice requirements and the court had jurisdiction to review the case.

Judge Canby dissented, arguing that grazing should have been enjoined until USFS completed ESA consultation. Judge Canby thought that the procedural “requirement of section 7(a)(2) makes little sense” if completion of consultation was not required before proposed actions could proceed because the purpose of consultation was to deduce whether activities would jeopardize listed species.[29] Judge Canby reasoned that even though Marsh stood for the principle that section 7(d) requirements apply after initiation of consultation, section 7(d) did not supplant the requirements of section 7(a)(2). As a result, the procedural violation of section 7(a)(2) warranted an injunction.


[1] At the time of the lawsuit, the Center for Biological Diversity was named Southwest Ce nter for Biological Diversity.

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

[3] Id. § 1536.

[4] Southwest Ctr. for Biological Diversity v. United States Forest Serv., 307 F.3d 964, 973 (9th Cir. 2002).

[5] 16 U.S.C. § 1536(d) (2000).

[6] Id. § 1536(a)(2).

[7] 50 C.F.R. § 402.14 (2002).

[8] 16 U.S.C. § 1536(d) (2000).

[9] 437 U.S. 153 (1978) (approving an injunction halting operation of Tellico Dam because the dam would jeopardize the existence of the snail darter (Percina tanasi), an endangered species under the ESA).

[10] The court cited Greenpeace v. National Marine Fisheries Service, 106 F. Supp. 2d 1066, 1072 (W.D. Wash. 2000).

[11] 753 F.2d 754 (9th Cir. 1985) (enjoining construction of road until USFS prepared biological assessment to determine whether timber sale in conjunction with road construction would affect the Rocky Mountain gray wolf (Canis lupus)).

[12] Id. at 764.

[13] 106 F. Supp. 2d 1066 (W.D.Wash. 2000).

[14] Id. at 1074-75.

[15] 284 F.3d 1046 (9th Cir. 2002).

[16] Id. at 1057.

[17] Id.

[18] Southwest Ctr. for Biological Diversity, 307 F.3d at 972.

[19] Id. at 973.

[20] 816 F.2d 1376 (9th Cir. 1987).

[21] Southwest Ctr. for Biological Diversity, 307 F.3d at 973.

[22] Id.

[23] Id. at 974.

[24] Id. (citing Alaska Ctr. for the Env’t v. United States Forest Serv., 189 F.3d 851, 854 (9th Cir. 1999), which stated, “in determining if an issue satisfies the repetition/evasion exception, [this court has] recognized that ‘evading review’ means that the ‘underlying action is almost certain to run its course before either this court or the Supreme Court can give the case full consideration'”) (citations omitted).

[25] Endangered Species Act of 1973, 16 U.S.C. § 1540(g)(2)(A)(i) (2000).

[26] 520 U.S. 154 (1997).

[27] 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000).

[28] Bennett, 520 U.S. at 177-79.

[29] Southwest Ctr. for Biological Diversity, 307 F.3d at 976 (Canby, J., dissenting).

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