On October 11, 2016, the U.S. Supreme Court denied the U.S. Forest Service’s (“Forest Service”) petition for writ of certiorari to review the U.S. Court of Appeal for the Ninth Circuit’s decision in Cottonwood Environmental Law Center v. Forest Service, 789 F.3d 1075 (9th Cir. 2015). The key issues in the case related to standing, the justiciability of programmatic planning documents, and whether section 7 of the Endangered Species Act (“ESA”) may require a federal agency to reinitiate consultation with the U.S. Fish and Wildlife Service (“USFWS”) even after the agency has taken a final agency planning action.
The U.S. Supreme Court’s decision to decline review leaves in place the Ninth Circuit’s holdings that: (1) Article III standing to challenge a procedural violation with regard to an agency planning decision does not require demonstration of imminent injury from a specific development project; (2) an agency’s procedural failure to undertake section 7 consultation for a planning decision is ripe for judicial review; and (3) the obligation to consult with the USFWS under section 7 continues in effect even after the federal agency has taken final agency action on a plan or program and there is ongoing discretionary federal involvement or control over the listed species.
The dispute in Cottonwood Environmental Law Center v. Forest Service concerned the Forest Service’s decision not to reinitiate section 7 consultation for an adopted land management and conservation and recovery plan for the threatened Canada lynx (Lynx canadensis) after the USFWS designated National Forest land in the Northern Rocky Mountains as Canada lynx critical habitat.
On the same day, the U.S. Supreme Court declined to review a case involving critical habitat for the green sturgeon, Bldg. Indus. Ass’n of the Bay Area v. U.S. Dep’t of Commerce, 792 F.3d 1027 (9th Cir. 2015), as well as a federal court ruling upholding the Forest Service’s 2012 Colorado roadless rule, Ark Initiative v. Tidwell, 816 F.3d 119 (D.C. Cir. 2016).