District Court Holds U.S. Forest Service Failed to Consult Under Section 7 of the Endangered Species Act
Posted in Court Decisions

On June 24, 2013, the U.S. District Court for the District of Montana held (pdf) that the U.S. Forest Service (Service) violated section 7 of the Endangered Species Act (ESA) by failing to consult on the impacts of a vegetation management project on Canada lynx (Lynx canadensis) in the Helena National Forest.

Plaintiffs argued that the Service violated section 7 of the ESA by failing to consult with the U.S. Fish and Wildlife Service regarding the impacts of the proposed project on grizzly bears (Ursus arctos horribilis) and Canada lynx. The Service argued that consultation was not required because grizzly bears and Canada lynx are not species that are present in the project area.

Plaintiffs argued that the Service improperly conflated the legal standard for consultation under section 7 with the legal standard for designation of critical habitat under section 4 of the ESA. Specifically, the section 4 occupancy standard requires evidence of reproduction or verified sightings of the species, whereas the section 7 may be present standard is less rigorous.

The court held for plaintiffs regarding the Canada lynx, finding there was evidence that the lynx may be present in the project area. With respect to grizzly bears, however, the court found that, while the Service may have applied the incorrect standard, this amounted to harmless error because there was no evidence that the species may be present in the project area.

The project is a timber sale planned for 2,891 acres in the Helena National Forest. A mountain pine beetle outbreak killed many trees in the region, and the goal of the project is to create vegetative conditions that resist fire and further insect infestation, reduce hazardous fuels, improve water quality, and provide timber.

Plaintiffs also brought claims under the National Environmental Policy Act and the National Forest Management Act. These claims were unsuccessful.

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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