Extra Record Evidence Saves Forest Service From Section 7(d) Violation

by Nossaman LLP
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Late last month, the United States District Court for the District of Idaho denied preliminary injunctive relief in an Endangered Species Act case against the Fish and Wildlife Service (FWS) and Forest Service, even though it found that "the required rational connection was not made in the [section] 7(d) determination," because declarations submitted to the court after-the-fact provided a rational connection.  See Western Watersheds Project v. U.S. Fish and Wildlife Service, No. 4:13-cv-176 (June 26, 2013) (pdf). 

In 2010, FWS issued a biological opinion and incidental take statement authorizing the U.S. Forest Service to permit grazing activities in habitat for the threatened bull trout (Salvelinus confluentus).  In 2012, due to changed circumstances, the Forest Service reinitiated consultation with FWS.  Despite not having completed a new biological assessment, the Forest Service adjusted grazing activities on two pastures.  In support of this adjustment, the Forest Service made a finding under section 7(d) of the Endangered Species Act that the new grazing plan would not jeopardize the continued existence of the bull trout.  Western Watershed Project, an environmental organization, filed suit shortly thereafter, alleging that the Forest Service violated section 7 and section 9 of the Endangered Species Act. 

Section 7 of the Endangered Species Act states that after initiating consultation, a Federal agency "shall not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (a)(2) of this section."  Section 9 of the Endangered Species Act generally prohibits the unauthorized take of a listed species. 

With respect to the section 7(d) claim, the court found that "the Forest Service did not discuss the potential impact of trailing nearly 3,000 cattle over [the] spawning grounds just days before spawning would begin on August 15th," and that as a result the "required rational connection was not made in the [section] 7(d) determination[.]"  The court, however, considering expert declarations submitted after-the-fact by the Forest Service, found that a rational connection was subsequently made.  Citing the Ninth Circuit's decision in Western Watersheds Project v. Kraayenbrink, 632, F.3d 472 (9th Cir. 2011), the court held that it could rely on the extra-record declarations when ruling on the section 7(d) claim.  

As a result, after finding that the plaintiff failed to demonstrate a likelihood of success on its section 9 claim, the court denied plaintiff's motion for preliminary injunctive relief.

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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