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Cottonwood Environmental Law Center v. United States Forest Service

ELR Citation: 45 ELR 20114
Nos. 13-35624, -35631, (9th Cir., 06/17/2015)

The Ninth Circuit held that the U.S. Forest Service violated ESA §7 when it failed to reinitiate consultation after FWS designated critical habitat for the Canada lynx on National Forest land. In 2006, FWS designated critical habitat for the Canada lynx that did not include any National Forest lands. In 2007, the Forest Service adopted guidelines and standards for permitting activities that were likely to have an adverse effect on the species, and it initiated §7 consultation with FWS, which determined that the standards and guidelines did not jeopardize the Canada lynx. FWS then learned that its decisions relating to the designation of critical habitat were flawed. It reevaluated its data and ultimately designated extensive National Forest land as critical habitat. Nevertheless, the Forest Service did not reinitiate consultation with FWS. But the court held that the ESA's implementing regulations required it to do so. Requiring reinitiation in these circumstances comports with the ESA's statutory command that agencies consult to ensure the "continued existence" of listed species. Here, FWS discovered that its decision on critical habitat had been tainted by an ethical lapse in its own administrative ranks. Reevaluation of the data generated a drastically different result that justified vast designation of previously unprotected critical habitat. These new protections triggered new obligations.