Conservation Congress v. United States Forest Service
720 F.3d 1048
| 9th Cir. | 2013Background
- CC sued Forest Service and FWS under ESA §7(a)(2) over Mudflow Project effects on Owl critical habitat.
- Forest Service prepared a BA and engaged in informal consulting with FWS; FWS concurred not likely to adversely affect.
- BA concluded 1,719 acres of foraging habitat would be temporarily degraded; nesting/roosting habitat unaffected.
- 2011–2013, informal consultations and re-concurrences occurred; Forest Service approved the project in 2011; later recalculated under updated habitat rules.
- District court denied CC’s motion for a preliminary injunction; CC appealed; Defendants argued mootness but court found not moot because ongoing practice continued.
- Court reviews for abuse of discretion on preliminary injunction and applies APA arbitrary/capricious standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether cumulative effects analysis was required during informal consultation | CC asserts duty to analyze cumulative effects in informal consult. | Defendants say no mandatory cumulative-effects duty during informal consultation. | No mandatory cumulative-effects duty in informal consult; agency discretion governs. |
| Whether the Mudflow Project would likely adversely affect the Owl or its critical habitat | CC contends evidence shows degradation amounts to adverse effect. | Defendants reasonably concluded effects do not amount to adverse modification or jeopardy. | Project may affect but is not likely to adversely affect; agency decision upheld. |
| Whether the appeal is moot given new habitat designations and ongoing consultations | CC argues mootness based on 2013 habitat rule updates. | Updates moot the action. | Not moot; Defendants continue challenged conduct and thus relief could be granted. |
Key Cases Cited
- Earth Island Inst. v. Carlton, 626 F.3d 462 (9th Cir. 2010) (abuse-of-discretion standard for injunctions; deferential review)
- Medina Cnty. Envtl. Action Ass’n v. Surface Transp. Bd., 602 F.3d 687 (9th Cir. 2010) (cumulative-effects analysis; SE7 context)
- Lands Council v. McNair, 629 F.3d 1070 (9th Cir. 2010) (deferential review; rational connection between facts and choices)
- Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519 (U.S. 1978) (agency procedures and deference to agency process)
- Butte Envtl. Council v. U.S. Army Corps of Eng’rs, 620 F.3d 936 (9th Cir. 2010) (adverse modification requires appreciable diminution of habitat value)
- Sierra Forest Legacy v. Sherman, 646 F.3d 1161 (9th Cir. 2011) (cumulative impacts as treated under NEPA vs ESA)