Legal and Practical Implications of the Ninth Circuit’s Cottonwood Environmental Law Center v. U.S. Forest Service Decision Under the Endangered Species Act

The Endangered Species Act of 1973 (ESA; P.L. 93-205) generally requires federal agencies to consult with the U.S. Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS) (together, the Services), as applicable, when their discretionary actions may affect either species listed under the ESA or the designated critical habitat for those species. The consultation process is intended to ensure federal agencies do not jeopardize listed species or adversely modify listed species’ critical habitat. The process also may require significant resources from the federal agency and the Services and might delay implementation of agency actions. The Services’ implementing regulations require federal agencies to reinitiate this consultation process when any of four specified triggering events takes place that may change the Services’ conclusions about the effects of the action. Concerns over allocation of resources and project delays due to the consultation process under the ESA have caused certain stakeholders to question which agency actions meet the regulatory criteria for triggering reinitiation of consultation requirements and, as a policy matter, which agency actions should trigger such requirements. Other stakeholders contend that reinitiating consultation ensures listed species and critical habitat are protected and that the requirements should apply broadly. A critical recent issue has been whether adopted plans for managing areas of federal land do (or should) require reinitiation of consultation when triggered. This issue has been raised on multiple occasions with respect to land and resource management plans (forest plans) adopted by the U.S. Forest Service (FS) under the National Forest Management Act (NFMA; P.L. 94-588) to manage the National Forest System. The issue also extends to land use plans adopted by the Bureau of Land Management (BLM) for managing public lands under the Federal Land Policy and Management Act of 1976 (FLPMA; P.L. 94-579). The Ninth and Tenth Circuits have reached different conclusions on reinitiating consultation in the context of forest plans. In 2015, the Ninth Circuit held in Cottonwood Environmental Law Center v. U.S. Forest Service (Cottonwood) that the FS must reinitiate consultation on forest plans when a triggering event occurs—in that case, the designation of critical habitat in the area affected by the action. This holding is consistent with Ninth Circuit precedent (specifically, its 1994 decision in Pacific Rivers Council v. Thomas) but conflicts with the 2007 Tenth Circuit opinion in Forest Guardians v. Forsgren, which held that the FS did not need to consult on an adopted forest plan. In 2018, Congress enacted legislation that modified how the Cottonwood decision applies to certain forest plans and BLM land use plans. Under that legislation, the Secretary of Agriculture generally need not reinitiate consultation for previously adopted forest plans when new species are listed or critical habitat is designated under the ESA, subject to certain limitations. The law also exempted certain BLM land use plans under FLPMA from reinitiation of consultation for new species or new designations of critical habitat. In 2019, the Services amended the implementing regulations to include these exemptions and extend the exemption to all BLM land use plans. That statutory exemption is limited—there are still circumstances in which the FS and BLM must reinitiate consultation—and when such circumstances occur, the agencies remain subject to different rules in the Ninth and Tenth Circuits. Due to the limitations of the 2018 legislation, debate continues over whether Congress should act again to address the ESA’s requirements for reinitiating consultation. Some stakeholders and agency officials contend that reinitiating consultation on adopted forest plans in response to a triggering event is inefficient and duplicative, because those issues are addressed during project-level consultation. In contrast, other stakeholders contend that reinitiating consultation is more efficient at the plan level and that any potential impacts are relatively minimal. The extent to which the Cottonwood decision has impacted FS resource allocations and operations is difficult to ascertain, primarily due to data constraints. In light of these considerations, Congress could consider enacting legislation to clarify how the reinitation requirement applies to forest plans and land use plans.