Forest Guardians v. Johanns

• Decision Date: 13 June 2006
• Docket Number: No. 04-16179.,04-16179.
• Parties: FOREST GUARDIANS, Plaintiff-Appellant, v. Mike JOHANNS, Secretary of Agriculture; United States Forest Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

450 F.3d 455

FOREST GUARDIANS, Plaintiff-Appellant, v. Mike JOHANNS, Secretary of Agriculture; United States Forest Service, Defendants-Appellees.

No. 04-16179.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 15, 2006.

Filed June 13, 2006.

Robert B. Wiygul, Waltzer & Associates, Biloxi, MS, for the plaintiff-appellant.

Thomas L. Sansonetti, Assistant Attorney General, Lisa Russell, M. Alice Thurston and David C. Shilton, United States Department of Justice, Washington, DC; and Mary Ann Joca, United States Department of Agriculture, Albuquerque, NM, for the defendants-appellees.

Appeal from the United States District Court for the District of Arizona; David C. Bury, District Judge, Presiding. D.C. No. CV-01-00138-DCB.

Before: REINHARDT, PAEZ, and TALLMAN, Circuit Judges.

REINHARDT, Circuit Judge:

Forest Guardians appeals the district court's determination that the United States Forest Service did not violate the Endangered Species Act when it failed to re-initiate consultation on the environmental impact of cattle grazing on a plot of national forest land in Arizona. Forest Guardians urges that the Forest Service was required to re-consult because it failed to comply with the agreed-upon criteria governing the monitoring of the grazing's impact on endangered and threatened species living in the Water Canyon Allotment of the Apache-Sitgreaves National Forests. We agree that the Forest Service's failure to re-initiate consultation on Water Canyon violated the Endangered Species Act, and reverse the judgment of the district court.

I Endangered Species Act

The Endangered Species Act (ESA) contains substantive and procedural provisions designed to protect species listed as threatened or endangered under the Act. The substantive provision relevant to this appeal is § 7, which prohibits federal agencies such as the Forest Service from taking discretionary actions that would "jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species...." 16 U.S.C. § 1536(a)(2).

An agency's decision whether to take a discretionary action that may jeopardize endangered or threatened species is strictly governed by ESA-mandated interagency consultation procedures. Id. § 1536(c); Thomas v. Peterson, 753 F.2d 754, 764 (9th Cir.1985) ("[T]he strict substantive provisions of the ESA justify more stringent enforcement of its procedural requirements, because the procedural requirements are designed to ensure compliance with the substantive provisions."). First, the agency contemplating the action must request information from the appropriate federal wildlife service regarding "whether any species which is listed or proposed to be listed may be present in the area of such proposed action." 16 U.S.C. § 1536(c)(1). In this case, the appropriate wildlife service is the United States Fish and Wildlife Service (FWS).¹ If the wildlife service determines that listed species may be present in the affected area, the agency preparing to act must produce a "biological assessment" in accordance with the National Environmental Policy Act "for the purpose of identifying any endangered species or threatened species which is likely to be affected by such action." Id. If the biological assessment concludes that listed species are in fact likely to be adversely affected, the agency ordinarily must enter "formal consultation" with the wildlife service. Id. § 1536(a)(2); Thomas, 753 F.2d at 763. Formal consultation requires the wildlife service to produce a "biological opinion" that evaluates the nature and extent of the proposed action's effect on the listed species and that, if necessary, posits reasonable and prudent alternatives to the proposed action. 16 U.S.C. § 1536(b)(3)(A); Pac. Rivers Council v. Thomas, 30 F.3d 1050, 1054 n. 8 (9th Cir.1994).

Following the issuance of a biological assessment which determines that listed species are likely to be adversely affected, the agency may, however, attempt to avoid the lengthy and costly process of formal consultation with the service by voluntarily initiating a less rigorous regulatory procedure called "informal consultation." 50 C.F.R. § 402.13.

Informal consultation is an optional process that includes all discussions, correspondence, etc., between the [Fish and Wildlife] Service and the Federal agency... designed to assist the Federal agency in determining whether formal consultation or a conference is required. If during informal consultation it is determined by the Federal agency, with the written concurrence of the [Fish and Wildlife] Service, that the action is not likely to adversely affect listed species or critical habitat, the consultation process is terminated, and no further action is necessary.

Id. § 402.13(a). In other words, regardless of whether a biological assessment concludes that a proposed action would likely adversely affect listed species, if informal consultation is initiated and results in a finding that the proposed action would not in fact have such an effect, the agency is not required to engage in formal consultation. Id. § 402.14.²

There may be an additional step in the process, however, in some cases. Informal consultation must be re-initiated when (1) "new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered," id. § 402.16(b), or (2) "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," id. § 402.16(c).

The issue in this case is whether reinitiation of informal consultation is required with respect to Water Canyon as a result of the Forest Service's failure to comply with certain of the guidance criteria established during the initial informal consultation process regarding that allotment. We must also examine whether the case has become moot while on appeal.

Factual and Procedural Background

The Forest Service regulates livestock grazing in national forests and on other federal land under its jurisdiction. All livestock use of national forest land must be authorized by Forest Service-issued grazing permits, which are typically granted for ten-year terms. 36 C.F.R. § 222.3. Permits are issued for designated land allotments and must be accompanied by land management plans. Id. § 222.2. Each grazing permit and corresponding land management plan is subject to site-specific environmental analysis in accordance with federal law. Id.; see also Idaho Conservation League v. Mumma, 956 F.2d 1508, 1511 (9th Cir.1992).

In 1997, Forest Guardians and several co-plaintiffs filed a lawsuit challenging more than one thousand Forest Service-issued grazing permits for national forest land in Arizona and New Mexico. The complaint alleged that the Forest Service violated the ESA by failing to consult with FWS prior to issuing the permits. In response to the lawsuit, the Forest Service initiated informal consultation with FWS on each challenged allotment. However, because there were so many allotments that required review, the Forest Service and FWS streamlined the informal consultation process by agreeing to create general protocols called "guidance criteria." The guidance criteria consisted of certain factual conditions which, if satisfied, would cause FWS to agree that a "not likely to adversely affect" finding would be appropriate. Thus, if the Forest Service would ensure that the guidance criteria conditions were met with respect to a given allotment, the agency was permitted to presume that FWS concurred in the "not likely to adversely affect" finding for that allotment.

Forest Guardians' 1997 action targeted, among others, the grazing permit for the Water Canyon Allotment, which covers approximately 52,000 acres of the Apache-Sitgreaves National Forests in Arizona. Water Canyon is home to numerous ESA-listed species, including the Mexican spotted owl and the Little Colorado spinedace, a type of minnow. The allotment's land management plan permitted eighty-six cow/ calf pairs to graze for four months annually. The management plan established maximum utilization levels³ for each grazed pasture in the allotment; it assigned to ten pastures a 25 percent level and to the remaining four pastures a 35 percent level. The plan also required that the Forest Service, at a minimum, monitor the utilization levels of each grazed pasture at the mid-point of the scheduled use period. The plan recommended additional monitoring prior to livestock entry and at the end of the use period, but mid-point measuring was compulsory because it would allow the Forest Service to make operational changes if necessary to reflect actual range conditions.

In August 1998, the Forest Service and FWS entered into an agreement establishing guidance criteria that governed livestock grazing pursuant to Water Canyon's land management plan. The agreement adopted the management plan's environmental requirements. It explained that the monitoring of the utilization levels was critical to the continued existence of the affected species and emphasized that the Mexican spotted owl required forage sufficient to provide habitat for its rodent prey species. It also stated that restricted utilization levels were important because they allowed for controlled fires that reduced the risk of "catastrophic wildfire" in the region. The agreement provided that, for the life of each ten-year grazing permit, "yearly confirmation throughout the lifetime of the permit must take place to ensure the criteria for those findings continue to be met." In other words, the Forest Service was allowed to presume annual concurrence by FWS in the "not likely to adversely affect" finding only if it confirmed each year that the guidance criteria were being satisfied.

In September 1998, as a result...