Jump to Navigation
Jump to Content

Silver v. Babbitt

ELR Citation: 26 ELR 21374
Nos. Civ. 94-337 PHX CAM, -1610 PHX CAM, 924 F. Supp. 976/(D. Ariz., 08/24/1995)

The court holds that the U.S. Forest Service and the Bureau of Indian Affairs (BIA) violated Endangered Species Act (ESA) §7(a)(2) by failing to consult with the U.S. Fish and Wildlife Service (FWS) regarding management plans that may affect the threatened Mexican spotted owl and its critical habitat. The court first holds that the land and resource management plans (LRMPs), forest management plan (FMP), management recommendations for the northern goshawk, and interim directive at issue are agency actions that trigger the consultation process of §7(a)(2). All of the plans guide timber or wildlife management in the owl's habitat. The court further holds that the Forest Service's and BIA's adoption of the plans "may affect" the Mexican spotted owl, because they set forth the long-term criteria for harvesting the owl's habitat. The court next holds that the Forest Service violated the ESA by failing to consult with the FWS on the LRMPs. Although the Forest Service has commenced consultation on amendments to the LRMPs, the existing LRMPs control forest-management activities and will continue to control those activities until amended LRMPs are complete in the future. This allows the per se irretrievable and irreversible commitment of resources—the harvesting of habitat for the owl—to continue until the LRMPs are amended and consultation is complete. The court next holds that the BIA's approval of timber sales in the Navajo Nation Forest pursuant to an expired FMP must be enjoined until the FMP has been the subject of a §7 consultation with the FWS. The court holds that plaintiffs' claim is ripe for review even though there is no current FMP, because the BIA has authorized timber sales under the expired FMP. The court further holds that plaintiffs have standing to sue regarding the BIA's activity. The continued timber activity establishes an injury-in-fact, the causal connection between the BIA's noncompliance with the consultation requirement and the injury is clear, and an injunction requiring consultation and enjoining further harvesting would redress the injury. The court next holds that under BIA regulations, plaintiffs are not required to exhaust any administrative remedies before filing suit in federal district court for violations of ESA §7(a)(2), and moreover, that exhaustion of administrative remedies would be futile. The court holds that the Forest Service and BIA are clearly in violation of the ESA, and that injunctive relief is appropriate. The court orders the agencies to commence consultation on the LRMPs and FMP, and enjoins further harvesting until consultation is complete.

Counsel for Plaintiffs
Steven C. Sugarman
Rural Rt. 19, Santa Fe NM 87505
(505) 983-1700

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