Salix v. United States Forest Service
944 F. Supp. 2d 984
D. Mont.2013Background
- In 2000 the Canada lynx DPS was listed as threatened under the ESA, prompting a programmatic Lynx Amendment for 18 National Forests in the Northern Rockies.
- Formal Section 7 consultation occurred in 2005–2007; the Biological Opinion found no jeopardy and the Lynx Amendment was incorporated into 18 forest plans.
- In 2009 critical habitat was designated for lynx on lands overlapping some of the forests affected by the Lynx Amendment.
- Plaintiffs allege the Forest Service violated ESA section 7 by failing to reinitiate consultation after critical habitat designation and related landscape-scale effects.
- Plaintiffs sought declaratory and injunctive relief, arguing a landscape-level analysis is needed and specific projects cannot salvage the procedural defect.
- Court grants Plaintiffs’ summary judgment on the need to reinitiate consultation, but denies injunctions against specific projects due to lack of irreparable harm.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge programmatic Lynx Amendment | Plaintiffs have injury-in-fact from landscape effects. | Standing requires site-specific projects; programmatic alone insufficient. | Plaintiffs have standing to challenge the Lynx Amendment. |
| Notice of intent to sue sufficiency | Notice adequately described violation and statutes; enough to invoke ESA relief. | Not enough project-specific detail to trigger jurisdiction. | Notice was adequate under 16 U.S.C. § 1540(g)(3)(A). |
| Pacific Rivers status post-Norton and Karuk | Pacific Rivers remains good law; Lynx Amendment ongoing agency action requiring reinitiation. | Pacific Rivers effectively overruled by Norton and Karuk. | Pacific Rivers remains good law on ongoing agency action; Lynx Amendment is ongoing. |
| Triggering event for reinitiation | Designation of critical habitat triggers reinitiation under 50 C.F.R. § 402.16(b)(d). | Once amendment approved, no further agency action unless triggering events occur. | Designation of critical habitat constitutes triggering event; reinitiation required. |
| Relief: injunction against projects | Broad injunctions against all Lynx Amendment projects are necessary to prevent irreparable harm. | Injunctive relief should be tailored; no showing of irreparable harm for specific projects. | No injunction against specific projects; required to reinitiate consultation. |
Key Cases Cited
- Summers v. Earth Island Inst., 555 U.S. 488 (2009) (standing for programmatic challenges requires injury in fact and redressability)
- Sierra Forest Legacy v. Sherman, 646 F.3d 1161 (9th Cir. 2011) (standing to challenge facially in presence of programmatic plans; site-specific injury not required)
- Pacific Rivers Council v. United States Forest Service, 689 F.3d 1012 (9th Cir. 2012) (programmatic plans can be ongoing agency actions; review of plan affects)
- Ohio Forestry Association, Inc. v. Sierra Club, 523 U.S. 726 (1998) (NEPA vs NFMA distinction; procedural guarantees under ESA differ)
- Norton v. SUWA, 542 U.S. 55 (2004) (forest plans not ongoing NEPA action; but relevant to agency action scope under ESA)
- Cal. Sportfishing Prot. Alliance v. F.E.R.C., 472 F.3d 593 (9th Cir. 2006) (ongoing agency action and need for affirmative action considerations)
- Western Watersheds Project v. Matejko, 468 F.3d 1099 (9th Cir. 2006) (forest plans continue to apply to new projects; ongoing action under ESA)
- Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006 (9th Cir. 2012) (agency action inquiry requires affirmative act and potential influence for ESA scope)