‘Ethical Lapse’ Forces|New Look at Lynx

PORTLAND, Ore. (CN) - The Ninth Circuit affirmed that the U.S. Forest Service violated the Endangered Species Act by ignoring critical habitat designated for Canada lynx in national forests.

A three-judge panel affirmed and remanded a Montana Federal Court ruling that the Forest Service violated Section 7 of the Endangered Species Act by failing to reinitiate consultation on its lynx habitat management plan after the U.S. Fish and Wildlife Service changed its designation to include extensive habitat on national forest land.

The Ninth Circuit's June 17 opinion noted that the original Fish and Wildlife decision on lynx habitat had been "tainted by an ethical lapse in its own administrative ranks," which "triggered new obligations."

The reference is to the George W. Bush administration's Deputy Assistant Secretary of the Interior Julie McDonald. (See below.)

Fish and Wildlife listed the Canada lynx as a threatened species in 2000, and designated 1,300 square miles of habitat for it in 2006 - none of it in national forests.

The Forest Service adopted the designation in 2007, but failed to reinitiate consultation with Fish and Wildlife after that agency found its previous designation was "flawed" because it had been "improperly influenced by then Deputy Assistant Secretary of the Interior Julie McDonald."

McDonald resigned on May 1, 2007, a week before she was scheduled to testify to a House oversight committee. The U.S. Inspector General had said in a report that McDonald had manipulated and undermined scientific findings to promote the George W. Bush administration's efforts to help developers. At least nine endangered species rulings were reopened after McDonald departed, and a federal judge overturned one Fish and Wildlife rejection of habitat protection for the sage grouse, writing that "the FWS decision was tainted by the inexcusable conduct of one of its own executives ... who was neither a scientist nor a sage-grouse expert, [and] had a well-documented history of intervening in the listing process."

In the lynx case before the Ninth Circuit, the new designation substantially increased lynx habitat, adding national forest land in the Northern Rockies and North Cascades in Montana, Idaho, Wyoming and Washington.

But the Forest Service continued to base its lynx management plan on Fish and Wildlife's 2006 designation, without Section 7 consultation required by federal law.

The Cottonwood Environmental Law Center, of Bozeman, Mont., sued the Forest Service in 2012.

U.S. Chief District Judge Dana Christensen ruled in favor of Cottonwood on cross-motions for summary judgment, ordering the Forest Service to reinitiate consultation with Fish and Wildlife. But he refused Cottonwood's request for an injunction prohibiting specific projects slated for the affected habitat, such as fire control and timber salvage.

The Forest Service appealed to the Ninth Circuit, arguing that Cottonwood lacked Article III standing to challenge the changed designations.

Specifically, the Forest Service argued that Cottonwood "only challenges the failure to reinitiate consultation, rather than particular actions that would more directly injure [its] members."

The Ninth Circuit disagreed. Judge Richard Paez wrote for the panel: "Cottonwood properly alleges procedural injury stemming from the Forest Service's decision not to reinitiate consultation on the lynx amendments. The declarations connect that procedural injury to imminent harm in specific forests and project areas. Cottonwood was not required to challenge directly any specific project because ... the procedural injury was complete."

The Ninth Circuit said the Forest Service must reinitiate the Section 7 consultation because of an unforeseen factor that grossly compromised its previous decision.

"FWS discovered that its decision on critical habitat had been tainted by an ethical lapse in its own administrative ranks," Paez wrote. "Re-evaluation of the data generated a drastically different result that justified vast designation of previously unprotected critical habitat. These new protections triggered new obligations. The Forest Service cannot evade its obligations by relying on an analysis it completed before the protections were put in place."

But the court rejected Cottonwood's cross-appeal that claimed the Montana court erred by denying an injunction to stop projects that "may affect critical habitat" until the Forest Service completes the consultation.

"Cottonwood urges the court to follow our nearly 30-year-old precedent that relieves plaintiffs of the traditional burden of establishing irreparable harm when seeking injunctive relief to remedy a procedural violation of the ESA," Paez wrote. "We affirm the district court's denial of injunctive relief but remand for further proceedings."

He gave Cottonwood a shot at making "an evidentiary showing that specific projects would likely cause irreparable damage to its members' interests."

Circuit Judge Harry Pregerson partially dissented, writing that "the majority erred in unnecessarily overturning circuit precedent recognizing a presumption of irreparable injury for purposes of awarding injunctive relief on a claim alleging a procedural violation of the ESA."

He said Cottonwood should be granted an injunction pending compliance with the Section 7 consultation.

Attempts to contact Cottonwood and the Forest Service after hours Thursday were unsuccessful.

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