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Southwest Ctr. for Biological Diversity v. U.S. Forest Serv.

ELR Citation: 30 ELR 20354
Nos. No. Civ.A 99-0795-PHXWGY, 82 F. Supp. 2d 1070/(D. Ariz., 02/02/2000)

The court holds moot an environmental group's claim that the U.S. Forest Service violated §7(a) of the Endangered Species Act (ESA) when it granted several livestock grazing permits within the Tonto National Forest without first consulting with the U.S. Fish and Wildlife Service (FWS). The court first upholds a magistrate judge's determination that a cattle farmer association may only intervene during the remedial phase of the action. Only the Forest Service can comply with the duty to consult with FWS, thus, only the Forest Service can and should be a defendant for the liability phase of the litigation. The court also denies the association's motion for leave to file a motion for summary judgment because at this point, the remedial phase has not been reached. The court then holds that the environmental group sufficiently demonstrated standing to bring suit against the Forest Service. The group has demonstrated a particularized injury to a concrete interest, and its members have suffered a procedural injury from the Forest Service's failure to consult with FWS.

The court next grants the Forest Service's motion for leave to file an amended answer. In its original answer, the Forest Service admitted that it had not consulted with the FWS. However, the Forest Service has since initiated the consultation process. Because the Forest Service's consultation with FWS is the central factual premise of this case and because the environmental group has not opposed this motion, the court grants the motion to amend. The court then denies the group's motion for partial summary judgment on the pleadings. The group's ESA §7(a) claim is now moot because the Forest Service began consultation with FWS. In addition, the Forest Service need not obtain concurrence by the court or the FWS that it is in compliance with ESA §7(d). Last, because no issues remain live in this case during the Forest Service's attempt to comply with ESA §7(a)(2), the court orders the case administratively closed during such time as the Forest Service is consulting with FWS.

Counsel for Plaintiff
James J. Tutchton
University of Denver School of Law
Foote Hall
7150 Montview Blvd., Denver CO 80220
(303) 871-6996

Counsel for Defendants
Paul Boudreaux
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000