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Pacific Rivers Council v. Thomas

ELR Citation: 27 ELR 20163
Nos. 94-0159-S-HLR/DAE, 936 F. Supp. 738/(D. Idaho, 07/05/1996)

The court holds that the U.S. Forest Service may not allow livestock to graze in two pastures in the Boise National Forest before the agency completes consultation with the National Marine Fisheries Service under §7(a)(2) of the Endangered Species Act. The pastures are located in an area designated as critical habitat for the Snake River spring/summer Chinook salmon. The Forest Service moved for a modification of the court's injunction that bars the agency from allowing grazing in the area until the completion of consultation or until the court lifts the prohibition after conducting a hearing. Although consultation has begun, it has not been completed. The court first holds that the Forest Service has the burden of proving that it may proceed before completion of consultation. Generally, in order to prevail on a motion to modify, the movant must establish a change in circumstances that would make the original preliminary injunction inequitable. The court next rejects plaintiff environmental groups' argument that no agency can ever proceed with proposed action until consultation is complete. The court holds, however, that the Forest Service may not proceed to allow grazing after unilaterally determining that its action in not likely to affect a listed species adversely.

Counsel for Plaintiffs
Todd D. True
Sierra Club Legal Defense Fund
705 Second Ave., Ste. 203, Seattle WA 98104
(206) 343-7340

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