Cottonwood Environmental Law Center v. United States Forest Service
789 F.3d 1075
| 9th Cir. | 2015Background
- FWS listed the Canada lynx as threatened (2000) and initially designated limited critical habitat (2006), excluding National Forest land; a 2009 revised designation greatly expanded critical habitat to include extensive National Forest land after prior errors were disclosed.
- In 2007 the Forest Service adopted the Northern Rocky Mountains Lynx Management Direction ("Lynx Amendments") into multiple Forest Plans and obtained a 2007 FWS biological opinion (BiOp) concluding no jeopardy; that BiOp assumed no critical habitat on National Forest land.
- After FWS’s 2009 revised critical-habitat designation, the Forest Service declined to reinitiate ESA Section 7 consultation on the Lynx Amendments despite continuing to apply those Amendments at the project level.
- Cottonwood Environmental Law Center sued, alleging the Forest Service violated Section 7 by failing to reinitiate consultation; the district court granted summary judgment to Cottonwood and ordered reinitiation but declined to enjoin specific projects.
- On appeal the Ninth Circuit affirmed that Cottonwood had standing, that the claim was ripe, and that the Forest Service violated Section 7 by failing to reinitiate consultation; the court affirmed denial of injunctive relief but remanded to allow Cottonwood to show irreparable harm.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to bring programmatic challenge | Cottonwood: members have concrete, imminent recreational/scientific/spiritual harms tied to specific National Forests and project areas affected by Lynx Amendments | Forest Service: programmatic challenge is too speculative; must challenge a specific project (Summers) | Court: standing satisfied; declarations show specific plans/locations and procedural injury relaxes redressability/immediacy requirements |
| Ripeness of procedural claim | Cottonwood: procedural injury (failure to reinitiate) is complete and ripe for review | Forest Service: not ripe until a specific project causes harm or site-specific consultations fail to mitigate | Court: claim ripe; procedural injury is ripe when it occurs and agency decision is at an "administrative resting place" |
| Whether reinitiation of Section 7 was required after new critical-habitat designation | Cottonwood: new critical-habitat designation (and new information) triggered regulatory duty to reinitiate consultation on Lynx Amendments | Forest Service: action (plan amendment) was complete in 2007; SUWA/NEPA analogy means no duty to reinitiate | Court: Forest Service retained discretionary involvement/control over Forest Plans; ESA regulations require reinitiation when new info or new critical habitat arises—reinitiation required |
| Standard for injunctive relief after procedural ESA violation | Cottonwood: invoke Ninth Circuit precedent (Thomas) presuming irreparable harm for procedural ESA violations; seek injunction halting projects that may affect critical habitat until consultation | Forest Service: Winter and Monsanto altered injunctive-relief standards (NEPA cases); plaintiffs must prove likely irreparable harm | Court: Thomas presumption no longer binding after Supreme Court decisions; plaintiff must show irreparable harm; district court’s denial of injunction affirmed but remanded to permit Cottonwood to present evidence of likely irreparable injury |
Key Cases Cited
- Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167 (U.S. 2000) (standing and injury-in-fact framework)
- Summers v. Earth Island Inst., 555 U.S. 488 (U.S. 2009) (limits on standing for broad programmatic challenges absent concrete plans)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (procedural-rights standing principles)
- Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (U.S. 2004) (NEPA supplementation requires ongoing major federal action)
- Natl. Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (U.S. 2007) (Section 7 and "discretionary involvement or control" clarification)
- Tenn. Valley Auth. v. Hill, 437 U.S. 153 (U.S. 1978) (ESA’s strong preference for protecting listed species)
- Winter v. Nat. Res. Def. Council, 555 U.S. 7 (U.S. 2008) (preliminary-injunction standard requires likely irreparable harm)
- Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (U.S. 2010) (criticizing presumptions in injunctive-relief analysis; applying traditional equitable factors)
- Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1985) (presumption of irreparable harm for ESA procedural violations; Ninth Circuit precedent discussed and reconsidered)
- Washington Toxics Coalition v. EPA, 413 F.3d 1024 (9th Cir. 2005) (agency retains ESA obligations where it has continuing regulatory authority)
- Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220 (9th Cir. 2008) (procedural injury relaxes causation and redressability requirements)
- Natural Res. Def. Council v. Jewell, 749 F.3d 776 (9th Cir. 2014) (procedural-rights theory of standing under ESA)