Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv.

• Citation: 789 F.3d 1075
• Decision Date: 17 June 2015
• Docket Number: Nos. 13–35624,13–35631.,s. 13–35624
• Parties: COTTONWOOD ENVIRONMENTAL LAW CENTER, Plaintiff–Appellee/Cross–Appellant, v. UNITED STATES FOREST SERVICE; Faye Krueger, in her official capacity as Regional Forester for the U.S. Forest Service, Region One, Defendants–Appellants/Cross–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

789 F.3d 1075

COTTONWOOD ENVIRONMENTAL LAW CENTER, Plaintiff–Appellee/Cross–Appellant

v.UNITED STATES FOREST SERVICE; Faye Krueger, in her official capacity as Regional Forester for the U.S. Forest Service, Region One, Defendants–Appellants/Cross–Appellees.

Nos. 13–35624

13–35631.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 7, 2014.

Filed June 17, 2015.

Allen M. Brabender (argued), Attorney; Robert G. Dreher, Acting Assistant Attorney General; John H. Martin, Attorney, United States Department of Justice, Environmental and Natural Resources Division, Washington, D.C.; Andrew R. Varcoe, United States Department of Agriculture, Office of the General Counsel, Washington, D.C., for Plaintiffs–Appellants and Cross–Appellees.

Matt Kenna (argued), Attorney, Durango, CO; John Meyer, Attorney, Cottonwood Environmental Law Center, Sandpoint, ID, for Plaintiff–Appellee and Cross–Appellant.

Robert Molinelli and Scott W. Horngren, American Forest Resource Council, Portland, OR, for Amici Curiae American Forest Resource Council, Public Lands Council, Montana Wood Products Association, Inc., Montana Logging Association, Associated Logging Contractors, Inc.—Idaho, California Forestry Association, and Douglas Timber Operators.

Douglas A. Ruley, Vermont Law School, Environmental & Natural Resources Law Clinic, South Royalton, VT, for Amici Curiae Big Wild Adventures and Natural Exposures.

Appeal from the United States District Court for the District of Montana, Dana L. Christensen, Chief District Judge, Presiding. D.C. No. 9:12–cv–00045–DLC.

Before: HARRY PREGERSON, RICHARD A. PAEZ, and PAUL J. WATFORD, Circuit Judges.

Opinion by Judge PAEZ

; Partial Concurrence and Partial Dissent by Judge PREGERSON.

OPINION

PAEZ, Circuit Judge:

In 2000, the United States Fish and Wildlife Service (“FWS”) listed the Canada lynx, a snow-sturdy cousin to the bobcat, as a threatened species under the Endangered Species Act of 1973 (“ESA”), 16 U.S.C. § 1531 et seq. FWS designated critical habitat for the Canada lynx in 2006, but did not include any National Forest System land. Subsequently, the United States Forest Service (“Forest Service”) issued standards and guidelines for land management activities on National Forest land that responded to FWS's listing and designation decisions. The Forest Service then initiated consultation with FWS under Section 7 of the ESA, 16 U.S.C. § 1536(a)(2). FWS determined that the Forest Service's standards and guidelines did not jeopardize the Canada lynx. Shortly after completing the consultation process, FWS discovered that its decisions relating to the designation of critical habitat for the Canada lynx were flawed. After re-evaluating the data, FWS designated extensive National Forest land as critical habitat.

In this case, we must decide whether the district court properly determined that the Forest Service violated the ESA when it decided not to reinitiate consultation after the FWS revised its critical habitat designation to include National Forest land. Before doing so, however, we address the Forest Service's arguments that Cottonwood lacks standing to bring its claim and that the claim is not ripe for review. Because we conclude that Cottonwood's claim is justiciable, and that the Forest Service violated the ESA, we proceed to consider whether the district court erred in denying injunctive relief to Cottonwood. Although we affirm the district court's ruling, we remand for further proceedings to allow Cottonwood an opportunity to make the necessary showing in support of injunctive relief.

I. Background

In 2000, after eight years of litigation by conservation groups, FWS listed the distinct population segment of Canada lynx in the contiguous forty-eight states as a threatened species. Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for the Contiguous U.S. Distinct Population Segment of the Canada Lynx and Related Rule, 65 Fed.Reg. 16052–01, 16052, 16061 (Mar. 24, 2000). Six years later, FWS designated 1,841 square miles of land as critical habitat for the Canada lynx. Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Contiguous United States Distinct Population Segment of the Canada Lynx,

71 Fed.Reg. 66008–01, 66030 (Nov. 9, 2006). The designation included 1,389 square miles in the Northern Rocky Mountains “critical habitat unit.”¹ FWS did not, however, designate any National Forest land as critical habitat.

In March 2007, the Forest Service adopted the Northern Rocky Mountains Lynx Management Direction, which is commonly referred to as the “Lynx Amendments.” The Lynx Amendments were designed to “incorporate management direction in land management plans that conserves and promotes recovery of Canada lynx ... while preserving the overall multiple-use direction in existing plans.” The Lynx Amendments set specific guidelines and standards for permitting activities that are determined likely to have an adverse effect on Canada lynx. These activities include over-the-snow recreational activity, wildland fire management, pre-commercial forest thinning, and other projects that might affect the Canada lynx. The Forest Service amended the Forest Plans² for eighteen National Forests to include the Lynx Amendments.

The Forest Service initiated Section 7 consultation with FWS, the consulting agency. FWS issued a biological opinion (“BiOp”) in March 2007, which determined that the management direction in the Lynx Amendments did not jeopardize the Canada lynx. The BiOp concluded that “[n]o critical habitat has been designated for this species on Federal lands within the [areas governed by the Lynx Amendments], therefore none will be affected.” Just four months later, however, FWS announced that its critical habitat designation had been “improperly influenced by then deputy assistant secretary of the Interior Julie MacDonald and, as a result, may not be supported by the record, may not be adequately explained, or may not comport with the best available scientific and commercial information.” Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the Contiguous United States Distinct Population Segment of the Canada Lynx, 74 Fed.Reg. 8616–01, 8618 (Feb. 25, 2009). In 2009, FWS revised its critical habitat designation upward from 1,841 square miles to 39,000 square miles. Id. at 8642. The revised designation included more than 10,000 square miles in the Northern Rocky Mountains critical habitat unit. Id. Unlike the 2006 designation, the 2009 revised designation identified critical habitat in eleven National Forests. Despite this significant addition of critical habitat in the National Forests, the Forest Service declined to reinitiate Section 7 consultation with FWS on the Lynx Amendments. Thereafter, FWS issued BiOps determining that two projects within the Gallatin Forest, considered occupied by the Canada lynx, were unlikely to modify or adversely affect the lynx's critical habitat.³

In 2012, the Cottonwood Environmental Law Center (“Cottonwood”) filed this actionin district court alleging that the Forest Service violated the ESA by failing to reinitiate consultation. The parties filed cross-motions for summary judgment. The court ruled that the revised designation of critical habitat for the Canada lynx required reinitiation of Section 7 consultation on the Lynx Amendments. Salix v. U.S. Forest Serv., 944 F.Supp.2d 984, 986 (D.Mont.2013). Although the court granted summary judgment to Cottonwood and ordered reinitiation of consultation, it declined to enjoin any specific project. Salix, 944 F.Supp.2d at 1000–02.

The parties filed timely cross-appeals.⁴

II. Standard of Review

We review de novo a district court's decisions on cross-motions for summary judgment. Hoopa Valley Indian Tribe v. Ryan, 415 F.3d 986, 989 (9th Cir.2005). We also review de novo a district court's rulings on questions of standing and ripeness. Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1176 (9th Cir.2011). We review the denial of injunctive relief for abuse of discretion. Dep't of Parks & Recreation for State of Cal. v. Bazaar Del Mundo Inc., 448 F.3d 1118, 1123 (9th Cir.2006).

III. Standing

The Forest Service first argues that Cottonwood lacks Article III standing to challenge the Lynx Amendments because it brought a programmatic challenge, rather than a challenge to a specific implementing project that poses an imminent risk of harm to its members. As discussed below, we conclude otherwise.

A.

To establish Article III standing, “a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). An association or organization has standing when “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). An organization can satisfy the concrete harm requirement by alleging “an injury to the recreational or even the mere esthetic interests” of its members. Jayne v. Sherman, 706 F.3d 994, 999 (9th Cir.2013) (internal quotation marks omitted).

The Forest Service argues that the declarations Cottonwood filed in the district court on behalf of its members do not satisfy Article III standing requirements, as articulated in Summers v. Earth Island Institute, 555 U.S. 488, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009). In...