District Court Holds National Park Service Failed To Consult Under Section 7 Of The Endangered Species Act


On June 24, 2013, the U.S. District Court for the District of Montana held (pdf) that the National Park Service (NPS) 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 NPS 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. NPS 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 NPS 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 NPS 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.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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