Cottonwood Environmental Law Center v. U.S. Forest Service, 789 F.3d 1075 (9th Cir. 2015)
In this case, Cottonwood Environmental Law (Cottonwood) sued the United States Forest Service (USFS) in the United States District Court for the District of Montana. Cottonwood asserted that USFS violated the Endangered Species Act (ESA) by failing to reinitiate consultation with the United States Fish and Wildlife Service (FWS) after FWS revised a critical habitat designation. Both parties filed cross-motions for summary judgment. While the district court ruled that USFS did violate the ESA by failing to reinitiate consultation, the court denied injunctive relief. The Ninth Circuit affirmed the district court, but also remanded to provide Cottonwood an opportunity to make a showing of irreparable harm as grounds for injunctive relief.
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 Ninth Circuit first held that Cottonwood had Article III standing to sue. The court found that Cottonwood’s declarations established that its members extensively used specific National Forests where the Lynx Amendments apply and “demonstrate[d] their date-certain plans to visit the forests for the express purpose of viewing, enjoying, and studying Canada lynx.” The court rejected USFS’s argument that Cottonwood lacked standing because it brought a programmatic challenge, rather than a challenge to specific implementing project that poses an imminent risk to its members. Instead, the court determined that Cottonwood properly alleged a procedural injury stemming from USFS’ decision not the reinitiate consultation on the Lynx Amendments. The court then explained that Cottonwood’s alleged procedural injury relaxed its burdens to show causation and redressability. The court went on to hold that Cottonwood was not required to establish what a section 7 consultation would reveal or what standards would be set if USFS would reinitiate consultation, and that Cottonwood’s declarations alleging aesthetic, recreational, scientific, and spiritual injuries were not too attenuated to the procedural injury to establish standing.
The Ninth Circuit then addressed the ripeness of the lawsuit. The Court concluded that when a party like Cottonwood suffers a procedural injury, it may proceed with legal action at the time the alleged procedural failure takes place. The court explained that no additional factual development was required after a procedural injury had occurred. In so holding, the court rejected USFS’s argument that Cottonwood’s lawsuit was not ripe for review until Cottonwood challenged a particular project that implements the Lynx Amendments.
The Ninth Circuit next turned to the merits. Cottonwood argued that USFS violated section 7 of the ESA by failing to reinitiate consultation on the Lynx Amendments when FWS later designated critical habitat on National Forest land. USFS responded by arguing that it had no remaining obligations because it completed its action in 2007, when it made the final decision to amend the Forest Plans. The Ninth Circuit disagreed with USFS and held that USFS must reinitiate consultation on the Lynx Amendments.
USFS argued that it was not required to reinitiate consultation because it had already promulgated the Lynx Amendments and incorporated the Amendments into the Forest Plans when FWS revised its critical habitat designation. The Ninth Circuit disagreed. The court first explained that the ESA did not limit reinitiation of consultation to when there is ongoing agency action. Instead, consultation is required whenever new information reveals potential impacts of an agency action on listed species or when new critical habitat is designated that may be impacted by an agency action.The court went on to note that it had previously held that an agency had obligations for section 7 consultation even after the underlying action had been completed. Similarly, the court noted that because USFS had continuing authority over the Lynx Amendments to the Forest Plans, it had the continuing obligation to follow requirements of the ESA. The Ninth Circuit concluded that, pursuant to ESA’s implementing regulations, USFS was required to initiate consultation when FWS revised its critical habitat designation in National Forests.
The Ninth Circuit then turned to Cottonwood’s claim for injunctive relief. The court first noted that, starting with Thomas v. Peterson, there was an exception to the traditional test for injunctive relief when addressing a procedural violation under the ESA. In Thomas, the Ninth Circuit noted that the procedural requirements of the ESA are analogous to those of NEPA. Accordingly, there was no reason that the same principle of relaxed standing that already applied to NEPA should not apply to procedural violations of the ESA.
However, USFS argued that Thomas had been overturned by two Supreme Court cases. In the first of the two cases, Winter v. Natural Resources Defense Council, the Supreme Court rejected the Ninth Circuit’s test for preliminary injunction in NEPA cases as too lenient. In Monsanto Co. v. Geertson Seed Farms, the Supreme Court disapproved of cases that do not apply the traditional four-factor test. The Ninth Circuit analyzed whether the Supreme Court’s analysis for the two cases of injunctive relief under NEPA extends to the ESA. The Ninth Circuit noted that, indeed, the reasoning in Thomas explicitly relied on the presumption of irreparable injury that was previously recognized in the NEPA context. “Thus, even though Winter and Monsanto addressed NEPA and not the ESA,” the Ninth Circuit agreed that “they nonetheless undermine the theoretical foundation for our prior rulings on injunctive relief in Thomas and its progeny.” Although the Ninth Circuit held that the traditional test of Thomas had been undermined, the court concluded that Cottonwood should not be faulted for relying on Thomas, which had been the law of the Ninth Circuit since 1985. As a result, the Ninth Circuit remanded the case to the district court to allow Cottonwood an opportunity to show irreparable injury.
In sum, the Ninth Circuit held that 1) Cottonwood had standing to sue, 2) the issue was ripe for review, and 3) USFS violated the ESA by failing to reinitiate consultation with FWS. However, the Ninth Circuit failed to grant an injunction, and instead remanded the issue to give Cottonwood an opportunity to show irreparable injury.
In dissent, Judge Pregerson disagreed with the majority opinion’s ruling in regards to injunctive relief. The dissent argued that Winter and Monsanto do not address the ESA, but instead focused on NEPA’s standard for injunctive relief. The dissent explained that NEPA’s statutory goals are fundamentally procedural, while ESA’s statutory goal is to substantially provide for the conservation of endangered and treated species and their ecosystems. The dissent argued that the ESA has a unique history and purpose, and the Supreme Court’s ruling in Winter and Monsanto should not control the outcome of this case.
- Endangered Species Act of 1973, 16 U.S.C. §§ 1531–1544 (2012).↵
- U.S. Const. art. III, § 2.↵
- Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1080 (9th Cir. 2015).↵
- 753 F.2d 754 (9th Cir. 1985).↵
- Id. at 765.↵
- Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008); Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010).↵
- 555 U.S. at 21–22.↵
- 561 U.S. at 157.↵
- Cottonwood Envtl. Law Ctr., 789 F.3d at 1090.↵