On February 9, 2022, the U.S. District Court for the District of Colorado found that the Bureau of Land Management (BLM) violated the Endangered Species Act (ESA) when it failed to reinitiate consultation with the U.S. Fish and Wildlife Service (Service) prior to approving oil and gas leases. BLM had issued the leases for parcels of land in Southwest Colorado located within Gunnison sage-grouse (Centrocercus minimus) habitat and other proposed and existing areas of environmental concern.
The ESA requires federal agencies to review federal actions “at the earliest possible time to determine whether any action may affect listed species or critical habitat,” unless: (1) the agency determines based on a biological assessment or informal consultation that the proposed action is not likely to affect listed species or critical habitat; or (2) a preliminary biological opinion is issued after early consultation and the relevant federal agency later confirms that preliminary opinion as the final biological opinion. 50 C.F.R. §§ 402.14(a), 402.14(b)(1), 402.12(k1), 4012.13(c), 402.14(b)(2), 402.11(e)-(f). If neither exception applies, the agency must engage in formal consultation with the Service to generate a biological opinion that will express “whether or not the agency action is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat.” Id. § 402.02. Reinitiation of consultation is required if new information reveals the action may affect listed species or critical habitat in a manner or to an extent not previously considered, or if the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion, or if a new species is listed or critical habitat designated that may be affected by the agency action. Id. § 402.16(a).
The Service listed the Gunnison sage-grouse as threatened and designated critical habitat for the species in November 2014. Shortly thereafter, the agency adopted a Biological Opinion for the revision of a resource management plan and its impacts on the Gunnison sage-grouse. The Biological Opinion calls for further consultation with the Service for subsequent actions affecting the species.
The plaintiffs in this case argued that BLM’s approval of the lease sale was an “agency action” that “may affect” the Gunnison sage-grouse, and that by failing to consult with the Service, BLM violated the ESA. On the other hand, the federal defendants argued that the Biological Opinion applied only to subsequent activities at the development level.
The court concluded that whether any unanalyzed effect is present depends on the details of the prior consultation and the unique conditions of the species, and that because there was new information available to BLM at the leasing stage, BLM could have assessed at least some of the information for specific parcels. According to the court, the locations, size, and timing of the leases provided more information than was reviewed at the resource management plan stage, and therefore, new consideration should have been triggered under the ESA.
In siding with the plaintiffs, the court also rejected BLM’s argument that because the Service did not request that BLM reinitiate consultation, doing so was not mandatory, or, alternatively, that BLM’s decision to not reinitiate consultation was reasonable. Rather, the court stated that BLM had an independent duty to reinitiate consultation if new information revealed the action may affect listed species in a manner or to an extent not previously considered, as the Court found here.
Sara Greenberg assists in advising clients on environmental and land use matters involving the Comprehensive Environmental Response, Compensation and Liability Act, the Clean Water Act, the Endangered Species Act, the ...
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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