Sen. Steve Daines (R-MT) introduced a bill earlier in June seeking to overthrow the Cottonwood decision “that created a new standard for re-consultation on forest plans when ‘new information’ is made available.”
“This year, there has already been a large number of projects impacted by notices of intent (NOI) and lawsuits filed, highlighting the urgent need for a fix to the Cottonwood decision,” Daines stated in a press release.
“Even the Obama administration agreed that the Cottonwood decision was flawed and crippled forest management,” Daines said. “This law has tied the hands of our land managers, prevented them from following the best available science in management decisions, and diverted resources for a paperwork exercise yielding no conservation benefit.
“By cutting unnecessary red tape, we will improve the health of our forests, reduce the risk of severe wildfires, advance wildlife habitat projects, and support good-paying timber jobs.”
The bill, S. 4057, sponsored by Daines and cosponsored by Sens. James Risch (R-ID), Mike Crapo (R-ID), and Kevin Cramer (R-ND), seeks to amend the Forest and Rangeland Renewable Resources Planning Act of 1974 and the Federal Land Policy and Management Act of 1976.
It states, “The secretary of agriculture and the secretary of the interior are not required to reinitiate consultation on a land management plan or land use plan under certain circumstances, and for other purposes.”
The additional consultation would not be required to be reinitiated under the Endangered Species Act of 1973 (ESA) or section 402.16 of title 50, Code of Federal Regulations (or a successor regulation) on a “land use plan approved, amended, or revised under this section based on new information relating to a species listed as threatened or endangered or critical habitat designated under that Act.”
The bill has strong support from the Federal Forest Resource Coalition, the Rocky Mountain Elk Foundation, the National Wild Turkey Federation, the Montana Wood Products Association, the American Loggers Council, the American Forest Resource Council, the Idaho Forest Group, and the Congressional Sportsmen Foundation, among others.
Cottonwood decision
In 2006, U.S. Fish and Wildlife Services (USFWS) 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 of the ESA.
The USFWS revised its critical habitat from the original figure to 39,000 square miles and included 11 national forests in 2009. Despite the increase in land area, the United States Forest Service (USFS) declined to reinitiate Section 7 consultation with USFWS.
Subsequently, Cottonwood Environmental Law Center brought an action against USFS. The district court ruled that the USFS violated the ESA, but declined to provide injunctive relief.
In 2015, the Ninth Circuit Court ruled in the case of Cottonwood v. United States Forest Service. It ruled the USFS violated the ESA by failing to reinstate consultation with the USFWS at the plan level following the designation of the Canada lynx habitat after USFWS revised a critical habitat designation.
As a result of the decision, the USFS stated in a memorandum, “The implications of Cottonwood extend beyond national forests (NFs) with lynx critical habitat. There are similar lawsuits and multiple NOI directed at projects on other NFs within the Ninth Circuit and beyond.”
Further stating, “Re-initiation of programmatic consultation for new listings, designation of critical habitat, and new information can pause project implementation and may result in a continuous holding pattern.”
The decision has broad implications that “provide an avenue for [the] challenge of the programmatic consultation for all affected forest plans,” which results in the delay of that tier to “completed programmatic actions such as timber sales, livestock grazing permits, and special permits,” USFS stated.
Litigation
An example of the endless litigation being filed by environmental groups is a case filed in July by the WildEarth Guardians and Wilderness Workshop seeking declaratory and injunctive relief against the USFWS.
The case challenges the USFWS’s delay in implementing a previous decision by the court in the case of WildEarth Guardians v. U.S. Department of the Interior, in 2016.
The case of Wildearth Guardians and Wilderness Workshop v. Aurelia Skipwith, director of USFWS, challenges a court’s ruling in 2016 that the USFWS delayed and failed to comply with the court’s previous decision.
The 2016 ruling in the case of Wildearth Guardians v. U.S. Department of the Interior was concerning habitat for Canada lynx.
The court “held that the [USFWS] erred in its September 2014 final rule designating critical habitat for Canada lynx in the U.S. by excluding the state of Colorado and certain national forests in Montana and Idaho from the critical habitat designation, and remanded the matter back to the [USFWS] for further action consistent with its order.”
The plaintiffs assert that after four years of inaction to take steps to revise the critical habitat for the lynx as ordered by the court, it is “compelled to file this civil action.”
The complaint filed states that USFWS’s delay qualifies as an “agency action unlawfully withheld or unreasonably delayed” and is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with [the ESA].”
As part of the lawsuit, the plaintiffs ask the court to remand the matter back to the USFWS for “analysis and action consistent with both the law and this court’s Sept. 7, 2016 remand order.”
They are also asking the USFWS to publish the draft lynx rule in the Federal Register and open a public comment period within 18 months of the judgment entered and to submit quarterly status reports to the court. As is customary, the plaintiffs are also looking for reimbursement of the cost of the lawsuit, and “grant plaintiffs such other and further relief as the court deems just and equitable.” — Charles Wallace, WLJ correspondent
