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Forest Service v. Cottonwood Environmental Law Center

Following the designation of the U.S. population of the Canada lynx in the lower 48 states, the U.S. Forest Service amended plans covering national forests in the northern Rocky Mountains, ostensibly to protect the lynx. As required by the Endangered Species Act (ESA), the Forest Service consulted with the Fish & Wildlife Service (FWS) about the effects of its plans on the species and its designated critical habitat. However, at that time, FWS, because of political interference, had not designated critical habitat in the national forests, and so it advised that the Forest Service’s Lynx Amendments would have no effect on lynx critical habitat.

FWS later designated millions of square miles of lynx critical habitat in national forests in the northern Rockies. Under an ESA regulation, federal agencies are required to “reinitiate” consultation with FWS when new critical habitat is designated, but the Forest Service did not do so, and it proceeded to approve timber harvesting projects on lynx critical habitat under the Lynx Amendments. Cottonwood Environmental Law Center brought a lawsuit challenging the failure to reinitiate consultation. It claimed standing to do so because its members use specific areas that will be affected by the approved timber projects.

A federal district court and the U.S. Court of Appeals for the Ninth Circuit both held that Cottonwood had standing because of the concrete injuries to its members, that the case was ripe because projects were already going forward, and that the Forest Service violated the plain meaning of the regulation when it did not reinitiate consultation. The Forest Service filed a petition for certiorari challenging all three holdings. Public Citizen, as cocounsel for Cottonwood, participated in preparing a brief in opposition to the petition, arguing that the court of appeals’ application of settled principles of standing and ripeness, and its enforcement of the plain language of the reinitiation regulation, presents no issue meriting review by the Supreme Court.