U.S. District Court in California rejects challenge of “no effect” determination for jurisdictional reasons, but foreshadows just how controversial the Bush Administration’s consultation regulations are (or could have become)
Sierra Forest Legacy v. US. Forest Service, No. C-08-4240 SC., 2009 WL 416787 (N.D.Cal. Feb. 19, 2009)
KEITHINKING: This case resolved a jurisdictional dispute, and the Court reasonably concluded that a lawsuit could not be brought against the USFWS or NOAA Fisheries for a concurring opinion; instead, the Court held that the lawsuit should be directed at the action agency for making the “no effect determination” in the first place. However, given the recent Bush Administration consultation regulations, and the regulation’s intention to empower action agencies to avoid consultation for “de minimus” actions, the discussion of the best available science standard in the opinion was remarkable. Specifically, the Endangered Species Act, 16 U.S.C. § 1536(a)(2), states that "each agency shall use the best scientific and commercial data available" during the consultation process. However, in what should probably be considered dicta, the Court found that a “no effect” concurrence was not part of the formal consultation process, and therefore, a challenge to the "no effect" decision was not subject to that best available standard. If that logic were applied in the future to an action agency finding of some activity to be “de minimus” pursuant to the new Bush consultation regulations, then it would also mean that the agencies would not need to rely on science, and the cries of foul play would grow even louder – and probably with great justification. The logic, however, seems flawed. If the statute requires a decision to consult, and the consultation itself, to be based on the “best available science,” then it seems it should also require a decision not to consult to be based upon the best available science as well.
Plaintiffs challenged an amendment to the "land and resource management plan" for the Sierra Nevada National Forest adopted by the United States Forest Service ("Forest Service")… These forests are managed by the Forest Service pursuant to the National Forest Management Act ("NFMA"), 16 U.S.C. § 1601 et seq. which requires a plan to (in part) "provide for diversity of plant and animal communities." 16 U.S.C. § 1604(g)(3)(B). The Forest Service sought to amend its plan to reduce its tracking and monitoring of “management indicator species”--certain bellwether species whose population fluctuations are believed to be indicators of the effects of various forest management activities—from 60 species to 13. The Forest Service’s Biological Assessment concluded that the MIS Amendment would have "no effect" on threatened or endangered species, or on the critical habitat of such species, and the National Marine Fisheries Service and U.S. Fish and Wildlife Service both concurred. Photo of the The General Grant Tree, Kings Canyon National Park, from NPS. For the rest of the opinion...
THE JURISDICTIONAL QUESTION: The Wildlife Services seek dismissal of Plaintiffs' Complaint for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Specifically, the Wildlife Services argue that Plaintiffs lack standing to sue and that the APA does not establish jurisdiction because the Wildlife Services' concurrences at issue were not final agency actions as required by 5 U.S.C. § 704… The Wildlife Services argue that Plaintiffs have failed to allege any injury caused by the actions of NMFS or FWS. Mot. at 8-10. At most, the Wildlife Services contend, Plaintiffs have alleged an injury resulting from the Forest Service's "no effect" determination, but not from the concurrences issued by NMFS and FWS.
RULING: The Supreme Court has established the criteria for final agency actions:
In Bennett v. Spear, 520 U.S. at 177-178, the U.S. Supreme Court explained, as a general matter, that two conditions must be satisfied for agency action to be "final": First, the action must mark the "consummation" of the agency's decisionmaking process--it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which "rights or obligations have been determined," or from which "legal consequences will flow." The Wildlife Services argue that the concurrences at issue here do not satisfy the second condition. See Mot. at 12. Plaintiffs contend that the concurrences have legal consequences because they "alter the legal regime to which the action agency is subject," Bennett, 520 U.S. at 178, and because they may provide evidentiary support for the Forest Service's defense of its own "no effect" determination in this lawsuit. See Opp'n at 8-10. Neither of Plaintiffs' arguments is persuasive.
KEY EXCERPT: Nothing in the concurring opinions limits the extent of the Forest Service's obligation to comply with the ESA. If the Forest Service attempts to rely on the concurrences in defending its own actions, Plaintiffs may challenge the legitimacy of the concurrences in that context, just as they might seek to undermine any other evidence the Forest Service introduces in its defense. The Court's conclusion that the concurrences are immune from judicial review does not amount to a finding that they are valid, well-reasoned, or other-wise credible evidence to support the Forest Service.