COTTONWOOD ENVIRONMENTAL LAW CENTER, Plaintiff-Appellee/Cross-Appellant,
UNITED STATES FOREST SERVICE; FAYE KRUEGER, in her official capacity as Regional Forester for the U.S. Forest Service, Region One, Defendants-Appellants/Cross-Appellees
Argued and Submitted, Portland, Oregon July 7, 2014
Appeal from the United States District Court for the District of Montana. D.C. No. 9:12-cv-00045-DLC. Dana L. Christensen, Chief District Judge, Presiding.
The panel affirmed the district court's holding that the United States Forest Service violated Section 7 of the Endangered Species Act when it failed to reinitiate consultation after the United States Fish and Wildlife Service designated critical habitat for the Canada lynx on National Forest land; affirmed the district court's denial of injunctive relief to Cottonwood Environmental Law Center; and remanded to provide Cottonwood an opportunity to make an evidentiary showing that specific projects would likely cause irreparable damage to its members' interests.
In 2000, the Fish and Wildlife Service listed the Canada lynx as a threatened species under the Endangered Species Act, and in 2006 designated critical habitat that did not include any National Forest lands. In 2007, the Forest Service adopted the Lynx Amendments, which set specific guidelines and standards for permitting activities that were determined likely to have an adverse effect on the Canada lynx. The Forest Service initiated Section 7 consultation with the Fish and Wildlife Service, which determined that the Forest Service's standards and guidelines did not jeopardize the Canada lynx. Subsequently, the Fish and Wildlife Service discovered that its decisions relating to the designation of critical habitat were flawed, and after reevaluating the data the Fish and Wildlife Service designated extensive National Forest land as critical habitat. The district court determined that the Forest Service violated the Endangered Species Act when it decided not to reinitiate consultation after the Fish and Wildlife Service revised its critical habitat designation to include National Forest land.
The panel held that Cottonwood had Article III standing to challenge the Lynx Amendments. The panel also held that Cottonwood's lawsuit was ripe for adjudication. The panel further held that pursuant to the Endangered Species Act's implementing regulations, the Forest Service was required to reinitiate consultation on the Lynx Amendments when the Fish and Wildlife Service designated critical habitat in National Forests.
Addressing Cottonwood's cross-appeal challenging the district court's denial of its request for injunctive relief, the panel held that there is no presumption of irreparable injury where there has been a procedural violation in Endangered Species Act cases. The panel held that a plaintiff must show irreparable injury to justify injunctive relief. The panel recognized that the presumption of irreparable harm in Thomas v. Peterson, 753 F.2d 754, 764 (9th Cir. 1985), was no longer good law following Supreme Court cases addressing injunctive relief in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), and Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010). The panel further held that Cottonwood should not be faulted for relying on Thomas as a basis for injunctive relief, and remanded on an open record to allow Cottonwood an opportunity to make a showing of irreparable injury.
Judge Pregerson concurred in part and dissented in part. Dissenting from Section VI of the majority opinion concerning injunctive relief, Judge Pregerson would not read Winter and Monsanto as overruling Thomas. He would apply Thomas and grant Cottonwood's request for an injunction pending compliance with the Endangered Species Act's Section 7 consultation requirements.
Allen M. Brabender (argued), Attorney; Robert G. Dreher, Acting Assistant Attorney General; John H. Martin, Attorney, United States Department of Justice, Environmental and Natural Resources Division, Washington, D.C.; Andrew R. Varcoe, United States Department of Agriculture, Office of the General Counsel, Washington, D.C., for Plaintiffs-Appellants and Cross-Appellees.
Matt Kenna (argued), Attorney, Durango, Colorado; John Meyer, Attorney, Cottonwood Environmental Law Center, Sandpoint, Idaho, for Plaintiff-Appellee and Cross-Appellant.
Robert Molinelli and Scott W. Horngren, American Forest Resource Council, Portland, Oregon, for Amici Curiae American Forest Resource Council, Public Lands Council, Montana Wood Products Association, Inc., Montana Logging Association, Associated Logging Contractors, Inc.--Idaho, California Forestry Association, and Douglas Timber Operators.
Douglas A. Ruley, Vermont Law School, Environmental & Natural Resources Law Clinic, South Royalton, Vermont, for Amici Curiae Big Wild Adventures and Natural Exposures.
Before: Harry Pregerson, Richard A. Paez, and Paul J. Watford, Circuit Judges. Opinion by Judge Paez; Partial Concurrence and Partial Dissent by Judge Pregerson.
PAEZ, Circuit Judge
In 2000, the United States Fish and Wildlife Service (" FWS" ) listed the Canada lynx, a snow-sturdy cousin to the bobcat, as a threatened species under the Endangered Species Act of 1973 (" ESA" ), 16 U.S.C. § 1531 et seq. FWS designated critical habitat for the Canada lynx in 2006, but did not include any National Forest System land. Subsequently, the United States Forest Service (" Forest Service" ) issued standards and guidelines for land management activities on National Forest land that responded to FWS's listing and designation decisions. The Forest Service then initiated consultation with FWS under Section 7 of the ESA, 16 U.S.C. § 1536(a)(2). FWS determined that the Forest Service's standards and guidelines did not jeopardize the Canada lynx. Shortly after completing the consultation process, FWS discovered that its decisions relating to the designation of critical habitat for the Canada lynx were flawed. After re-evaluating the data, FWS designated extensive National Forest land as critical habitat.
In this case, we must decide whether the district court properly determined that the Forest Service violated the ESA when it decided not to reinitiate consultation after the FWS revised its critical habitat designation to include National Forest land. Before doing so, however, we address the Forest Service's arguments that Cottonwood lacks standing to bring its claim and that the claim is not ripe for review. Because we conclude that Cottonwood's claim is justiciable, and that the Forest Service violated the ESA, we proceed to consider whether the district court erred in denying injunctive relief to Cottonwood. Although we affirm the district court's ruling, we remand for further proceedings to allow Cottonwood an opportunity to make the necessary showing in support of injunctive relief.
In 2000, after eight years of litigation by conservation groups, FWS listed the distinct population segment of Canada lynx in the contiguous forty-eight states as a threatened species. Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for the Contiguous U.S. Distinct Population Segment of the Canada Lynx and Related Rule, 65 Fed.Reg. 16052-01, 16052, 16061 (Mar. 24, 2000). Six years later, FWS designated 1,841 square miles of land as critical habitat for the Canada lynx. Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Contiguous United States Distinct Population Segment of the Canada Lynx, 71 Fed.Reg. 66008
(Nov. 9, 2006). The designation included 1,389 square miles in the Northern Rocky Mountains " critical habitat unit."  FWS did not, however, designate any National Forest land as critical habitat.
In March 2007, the Forest Service adopted the Northern Rocky Mountains Lynx Management Direction, which is commonly referred to as the " Lynx Amendments." The Lynx Amendments were designed to " incorporate management direction in land management plans that conserves and promotes recovery of Canada lynx . . . while preserving the overall multiple-use direction in existing plans." The Lynx Amendments set specific guidelines and standards for permitting activities that are determined likely to have an adverse effect on Canada lynx. These activities include over-the-snow recreational activity, wildland fire management, pre-commercial forest thinning, and other projects that might affect the Canada lynx. The Forest Service amended the Forest Plans for eighteen National Forests to include the Lynx Amendments.
The Forest Service initiated Section 7 consultation with FWS, the consulting agency. FWS issued a biological opinion (" BiOp" ) in March 2007, which determined that the management direction in the Lynx Amendments did not jeopardize the Canada lynx. The BiOp concluded that " [n]o critical habitat has been designated for this species on Federal lands within the [areas governed by the Lynx Amendments], therefore none will be affected." Just four months later, however, FWS announced that its critical habitat designation had been " improperly influenced by then deputy assistant secretary of the Interior Julie MacDonald and, as a result, may not be supported by the record, may not be adequately explained, or may not comport with the best available scientific and commercial information." Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the Contiguous United States Distinct Population Segment of the Canada Lynx, 74 Fed.Reg. 8616-01, 8618 (Feb. 25, 2009). In 2009, FWS revised its critical habitat designation upward from 1,841 square miles to 39,000 square miles. Id. at 8642. The revised designation included more than 10,000 square miles in the Northern Rocky Mountains critical habitat unit. Id. Unlike the 2006 designation, the 2009 revised designation identified critical habitat in eleven National Forests. Despite this significant addition of critical habitat in the National Forests, the Forest Service declined to reinitiate Section 7 consultation with FWS on the Lynx Amendments. Thereafter, FWS issued BiOps determining that two projects within the Gallatin Forest, considered occupied by the Canada lynx, were unlikely to modify or adversely affect the lynx's critical habitat.
In 2012, the Cottonwood Environmental Law Center (" Cottonwood" ) filed this action
in district court alleging that the Forest Service violated the ESA by failing to reinitiate consultation. The parties filed cross-motions for summary judgment. The court ruled that the revised designation of critical habitat for the Canada lynx required reinitiation of Section 7 consultation on the Lynx Amendments. Salix v. U.S. Forest Serv., 944 F.Supp.2d 984, 986 (D. Mont. 2013). Although the court granted summary judgment to Cottonwood and ordered reinitiation of consultation, it declined to enjoin any specific project. Salix, 944 F.Supp.2d at 1000-02.
The parties filed timely cross-appeals.
II. Standard of Review
We review de novo a district court's decisions on cross-motions for summary judgment. Hoopa Valley Indian Tribe v. Ryan, 415 F.3d 986, 989 (9th Cir. 2005). We also review de novo a district court's rulings on questions of standing and ripeness. Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1176 (9th Cir. 2011). We review the denial of injunctive relief for abuse of discretion. Dep't of Parks & Recreation for State of Cal. v. Bazaar Del Mundo Inc., 448 F.3d 1118, 1123 (9th Cir. 2006).
The Forest Service first argues that Cottonwood lacks Article III standing to challenge the Lynx Amendments because it brought a programmatic challenge, rather than a challenge to a specific implementing project that poses an imminent risk of harm to its members. As discussed below, we conclude otherwise.
To establish Article III standing, " a plaintiff must show (1) it has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). An association or organization has standing when " (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). An organization can satisfy the concrete harm requirement by alleging " an injury to the recreational or even the mere esthetic interests" of its members. Jayne v. Sherman, 706 F.3d 994, 999 (9th Cir. 2013) (internal quotation marks omitted).
The Forest Service argues that the declarations Cottonwood filed in the district court on behalf of its members do not satisfy Article III standing requirements, as articulated in Summers v. Earth Island Institute, 555 U.S. 488, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009). In particular, the Forest Service argues that Cottonwood does not have standing because Cottonwood only challenges the failure to reinitiate consultation, rather than particular actions that would more directly injure Cottonwood's members. In Summers, a group of environmental organizations sought a nationwide injunction against the enforcement of regulations issued by the Forest Service that exempted small-scale fire-control and timber-salvage projects from the notice, comment, and appeal process that applied to more substantial land management
decisions. Id. at 490. Plaintiffs also specifically challenged a 238-acre salvage sale of timber, called the Burnt Ridge Project, in the Sequoia National Forest. Id. at 491. During the course of litigation, the parties settled their dispute over the Burnt Ridge Project. Id. After the settlement was in place, the district court proceeded to invalidate five regulations and grant a nationwide injunction enjoining their enforcement. Id. at 492. We affirmed. Id.
Reversing, the Supreme Court held that the plaintiffs failed to establish injury in fact necessary to satisfy Article III standing requirements. Id. at 494-97. The plaintiffs filed only one affidavit--from Jim Bensman, a member of one of the plaintiff organizations--that purported to relate a threatened interest beyond the Burnt Ridge Project. Id. at 495. The Court held that Bensman's representation of general plans to visit " several unnamed National Forests in the future" was insufficient to establish standing because Bensman " fail[ed] to allege that any particular timber sale or other project claimed to be unlawfully subject to the regulations will impede a specific and concrete plan . . . to enjoy the National Forests." Id. The Court emphasized that, although Bensman referred to a series of projects in the Allegheny National Forest, Bensman did not " assert . . . any firm intention to visit their locations, saying only that [he] 'wants to' go there . . . . Such 'some day' intentions--without any description of concrete plans, or indeed any specification of when the some day will be--do not support a finding of . . . 'actual or imminent' injury . . . ." Id. at 496 (internal quotation marks and citations omitted). Thus, the Court concluded that there was " a chance, but . . . hardly a likelihood, that Bensman's wanderings w[ould] bring him to a parcel about to be affected by a project unlawfully subject to the regulations." Id. at 495.
There is a clear contrast between the specificity of Cottonwood's declarations and Bensman's affidavit. Cottonwood's declarations establish that its members extensively utilize specific National Forests where the Lynx Amendments apply and demonstrate their date-certain plans to visit the forests for the express purpose of viewing, enjoying, and studying Canada lynx.
For instance, the declaration of Sara Jane Johnson describes a twenty-year history of lynx-related recreational activity in the Gallatin, Flathead, and Helena National Forests with plans to return in " spring and summer of 2013." Similarly, the declaration of Jennifer Pulchinski describes several past trips she took to the Gallatin and Custer National Forests to look for Canada lynx, and her plans to take a similar trip in " mid-July of 2013." Further, several declarations state that Cottonwood's members engage in lynx-related recreation within specific project areas that have applied, or will apply, the management direction in the Lynx Amendments. For example, Joe Milbrath states that he has " already recreated in the Bozeman Watershed Project area, and ha[s] definitive plans to ski in the area next spring and to look for signs of Canada lynx." 
Cottonwood's members assert that the Forest Service's failure to reinitiate consultation will cause aesthetic, recreational, scientific, and spiritual injury, in the specific forests and project areas covered by the Lynx Amendments. Unlike Bensman's affidavit in Summers, these declarations sufficiently establish " a geographic nexus between the individual asserting the claim and the location suffering an environmental impact." See W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 485 (9th Cir. 2011) (internal quotation marks omitted); see also Wilderness Soc., Inc. v. Rey, 622 F.3d 1251, 1256 (9th Cir. 2010).
This is not the first time we have held that a plaintiff has standing to challenge programmatic management direction without also challenging an implementing project that will cause discrete injury. In Sierra Forest Legacy, a post- Summers case, we explained that " a procedural injury is complete after [a Forest Plan] has been adopted, so long as  it is fairly traceable to some action that will affect the plaintiff's interests."  646 F.3d at 1179. As in Sierra Forest Legacy, 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, as in Sierra Forest Legacy, the " procedural injury [was] complete." See id. ; see also Jayne, 706 F.3d at 999-1000 (holding that plaintiffs had standing to challenge a programmatic rule without challenging a specific implementing project).
Although the Forest Service acknowledges that Cottonwood's members have a relationship to the areas affected by the Bozeman Municipal Watershed Project and the East Boulder Fuels Reduction Project, it argues that Cottonwood ...