Endangered Species Law & Policy

On September 20, 2013, H.R. 1526, the Restoring Healthy Forests for Healthy Communities Act (pdf), was passed by the House of Representatives by a vote of 244-173. Shortly thereafter, the bill was referred to the Senate Committee on Energy and Natural Resources. Notably, H.R. 1526 includes provisions that, for certain projects authorized under the bill, would alter the way interagency consultation is conducted under section 7(a)(2) of the Endangered Species Act (ESA) and would foreclose parties from seeking relief in federal court prior to obtaining a final, unappealable decision on the merits.

The bill was introduced in the House of Representatives by Congressman Doc Hastings (R-Wash,) and has 22 co-sponsors. Its principal stated purpose is to restore employment and educational opportunities in, and improve the economic stability of, counties containing National Forest System land, while also reducing Forest Service management costs, by ensuring that such counties have a dependable source of revenue from National Forest System land. Section 103(a) of the bill calls for the Secretary of Agriculture to designate Forest Reserve Revenue Areas for each unit in the National Forest System. Section 104(a) authorizes and encourages the Secretary to commence covered forest reserve projects in Forest Reserve Revenue Areas.

Section 104(e)(1) states that if the Secretary of Agriculture determines a covered forest reserve project may affect the continued existence of any species listed as endangered or threatened then the Secretary shall issue a determination explaining the view of the Secretary that the proposed covered project is not likely to jeopardize the continued existence of the species. Section 104(e)(2)(B) states that within 30 days after receiving the Secretary of Agriculture’s determination, the Secretary of the Interior or the Secretary of Commerce, as appropriate, shall provide a written response concurring in or rejecting the determination. It further provides that if the Secretary rejects the determination then the Secretary must include recommendations for measures that will avoid the likelihood of jeopardy, can be implemented consistent with the purpose of the project and within the scope of the Secretary of Agriculture’s legal authority, and are economically and technologically feasible. In addition, if the Secretary of the Interior or the Secretary of Commerce rejects the Secretary of Agriculture’s determination, under section 104(e)(3), he or she is required to then engage in formal consultation under section 7 of the ESA and complete such consultation within 90 days. Importantly, these provisions not only shift the obligation to make a jeopardy determination in the first instance to the Secretary of Agriculture, but also mandates that he or she make a no-jeopardy determination in all cases.

Section 104(f)(2)(A) further provides that, in the event a covered forest reserve project is subject to judicial review, a reviewing court may not issue a restraining order, preliminary injunction, or injunction pending appeal with respect to that project in response to allegations that the Secretary of Agriculture violated any procedural requirement applicable to how the project was selected, planned, or analyzed. Section 104(f)(2)(B) requires any plaintiff challenging a project to post a bond to the court for the estimated costs, expenses, and fees of the Secretary of Agriculture as defendant, and section 104(f)(2)(C) allows the Secretary of Agriculture to recover all litigation expenses in the event the Secretary prevails. While existing law strongly favors the government, for example, by establishing a highly deferential standard of review, these provisions are intended to stack the deck to a much greater degree in favor of the government, and thereby deter would-be litigants.