Jump to Navigation
Jump to Content

Conservation Congress v. United States Forest Service

ELR Citation: 43 ELR 20129
Nos. 12-16452, (9th Cir., 06/13/2013)

The Ninth Circuit affirmed a lower court decision denying an environmental group's request to preliminarily enjoin the U.S. Forest Service's approval of a timber sale in the Shasta-Trinity National Forest. The group argued that the Service failed to adequately evaluate the cumulative effects of the project on the Northern spotted owl's critical habitat in violation of the ESA, but the group failed to show a likelihood of success on the merits. The group argued that the Service failed to analyze the cumulative effects of the sale in connection with other past, present, and future, nearby logging projects when it prepared a biological assessment and engaged in informal consultation with the FWS. Under the ESA, however, cumulative effects are those stemming from future state or private activities that are reasonably certain to occur within the project area. This definition only pertains to ESA §7 analyses and should not be conflated with NEPA's broader term "cumulative impact," which means "impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions." Here, the group is asking for a more extensive, NEPA-like cumulative impacts analysis. Moreover, there is simply no statutory mandate to consider cumulative effects during informal consultation. The consideration of cumulative effects is permissive, not mandatory. Nor did the lower court abuse its discretion in deferring to the Service's determination that the project would not likely adversely affect the owl or its critical habitat, thus obviating the need for formal consultation. Given the totality of the findings, the Service reasonably concluded that the project "may affect, but is not likely to adversely affect" the owl or its critical habitat.