In Sierra Forest Legacy v. United States Forest Service, 2009 WL 416787 (N.D. Cal. Feb. 19, 2009), the plaintiffs challenged an amendment to the Land and Resource Management Plans (LRMPs) issued by the Forest Service under the National Forest Management Act (NFMA) to govern activities on ten national forests in the Sierra Nevada Mountain Range. The amendment reduced the number of "management indicator species" (MIS) in the LRMPS from 60 to 13. The Forest Service concluded that the reduction would have no effect on any ESA-listed species. Both the Fish and Wildlife and the National Marine Fisheries Services agreed with that conclusion. As a result, the Forest Service did not initiate Section 7 consultation.
The plaintiffs thereupon filed suit, challenging among other things the wildlife agencies' failure to abide by the best scientific and commercial data available in determining that the LRMP amendment would have no effect on ESA-listed species. The wildlife agencies moved to dismiss as to themselves on standing grounds, alleging that the plaintiffs had not established injury-in-fact.
In a decision issued last week, Judge Conti of the Northern District of California agreed and dismissed the claims against the wildlife agencies. The court reasoned that, because the wildlife agencies cannot force an agency to consult, and because the Forest Service had determined that consultation was unnecessary (because of its "no effect" conclusion), the wildlife agencies had therefore violated no legal duty owed to the plaintiffs. In other words, according to the court, if the action agency (here, the Forest Service) does not initiate consultation, the wildlife agencies have no obligation to do anything.
Yet the fact of the wildlife agencies' acquiescence in the Forest Service's "no effect" determination does not mean that the MIS amendment is unreviewable. The plaintiffs can seek review of the Forest Service's decision under both the ESA and NFMA. And if the MIS amendment does injure ESA-listed species sufficiently to produce a take, then the agency would be liable under Section 9 in a citizen suit action.
Look for an appeal (at some point) by the plaintiffs.