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Environmental Law

: ESA Blawg

Even without site-specific facts, U.S. District Court Judge says USDA's informal consultation on programmatic forestry rule revisions failed to comply with ESA

By Keith Rizzardi

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Citizens for Better Forestry v. U.S. Department of Agriculture, No. C 08-1927 CW (N.D. Cal. June 30, 2009)

BACKGROUND: Plaintiffs Citizens for Better Forestry, et al. (collectively, Citizens) charge Defendants United States Department of Agriculture (USDA), et al. with failing to adhere to procedures required by the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) when they promulgated regulations that govern the development of management plans for forests within the National Forest System. In 1976, Congress enacted the National Forest Management Act (NFMA) to reform management of the National Forests. At the highest level, the NFMA requires the USDA to promulgate national uniform regulations that govern the development and revision of regional and local plans. 16 U.S.C. ? 1604(g). The second tier of National Forest regulation consists of land
resource management plans (LRMPs), also known as forest plans, which apply to large “units” of the forest system. 16 U.S.C. ? 1604(a). The third-tier of regulation consists of “site-specific” plans. 16 U.S.C. ? 1604(i).

ESA RULING: The USDA argues that it has complied with the ESA because it engaged in informal consultations with the wildlife agencies and prepared a Biological Assessment (BA)... Although the USDA engaged in correspondence with the wildlife agencies before it completed its BA, it is also undisputed that the agencies did not issue a written concurrence with the USDA’s finding that its 2008 Rule would have no effect on endangered species. Although an agency may be excused from the ESA’s consultation requirements if it concludes that its proposed action will have “no effect” on protected species (as opposed to concluding that is “unlikely to affect” protected species), see Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1447-48 (9th Cir. 1996), two courts have
rejected USDA’s argument that the programmatic nature of the plan development rule necessarily means that it will have no effect on the environment or protected species. The USDA has simply copied those rejected legal arguments in a new document and called it a “Biological Assessment.” This is not sufficient to satisfy the ESA’s requirements.

KEITHINKING: Federal agencies frequently experience frustration when attempting to implement the highly-specific requirements of the ESA in the context of forestry management, and regional and programmatic approaches seem to face high levels of judicial suspicion. That judicial suspicion may have been a factor in the court's conclusion that it had jurisdiction over this dispute in the first place. The Federal agencies reasonably questioned the standing of the Plaintiffs to object to a series of procedural reforms in the 2008 forestry rules, noting the absence of site-specific injuries, and citing a U.S. Supreme Court decision in Summers v. Earth Island Institute, ___ U.S. ___, 129 S. Ct. 1142 (2009). The District Court judge, however, relied on an older 9th Circuit opinion, Earth Island Institute v. Ruthenbeck, 490 F.3d 687, 694 (9th Cir. 2007), a case finding that a Plaintiff could have standing to sue because it had suffered a procedural injury. Citing factual distinctions between the types of procedural injuries experienced in the two case, the District Court held that it "is bound to follow the Ninth Circuit’s decision in Citizens I unless Summers is clearly irreconcilable with that decision." But in effect, the District Court concluded that the U.S. Supreme Court was not specific enough in the Summers case to preclude jurisdiction in the case before it: "It is true that the Summers Court’s discussion of procedural injury could be interpreted as prohibiting a challenge based on such an injury unless the plaintiff has concrete plans to visit a specific site that faces the threat of imminent harm as a direct result of the regulation tainted by procedural defects. However, it is not clear that the Supreme Court intended for such a rule to apply when, as here, the procedural injury in question will never be directly linked to a site-specific project."

SEE ALSO, CommonDreams.org press release, AP wire story from Google, and New York Times.

Full post as published by ESA Blawg on July 02, 2009 (boomark / email).