Southwest Center for Biological Diversity v. United States Forest Service

This case involves a dispute over the impact of livestock grazing on the habitat of the loach minnow, a threatened species of fish, in certain allotments of land in the southwest region of the United States. Plaintiffs/appellants Forest Guardians and the Center for Biological Diversity 1 (together “appellants”), are non-profit corporations actively involved in species protection issues throughout the southwestern United States.

Defendant/appellee United States Forest Service is a federal agency within the United States Department of Agriculture which has responsibility for administering and protecting public lands. In this matter it is the action agency.

The Secretary of Interior has responsibility for the loach minnow as a threatened species. The Secretary has delegated primary responsibility to defendant/appellee United States Fish and Wildlife Service to assist the Forest Service in determining whether any proposed action by the Forest Service is likely to impact the loach minnow. 50 C.F.R. § 402.13 .

Intervenor-appellee New Mexico Cattle Growers’ Association and intervenor/cross appellant Arizona Cattle Growers’ Association are non-profit, membership associations.…

dissenting:

I respectfully dissent because I conclude that grazing on the allotments in issue should have been enjoined pending consultation. A word of explanation is necessary.

Section 7(a)(2) of the Endangered Species Act, 16 U.S.C. § 1536 (a)(2), requires each federal agency, “in consultation with and with the assistance of the Secretary, [to] insure that any action authorized, funded; or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species Or result in the destruction or adverse modification” of the species’ critical habitat. The Secretary has delegated his consultation role to the Fish and Wildlife Service, which is the expert agency entrusted with the crucial determination of likelihood of jeopardy.

In Thomas v. Peterson, 753 F.2d 754 (9th Cir.1985), we held that, absent unusual circumstances, an injunction is the appropriate remedy for a substantial violation of the procedural requirement of section 7(a)(2) of the Act. In the present case, however, the majority opinion holds that an injunction is not necessary because there was sufficient evidence in the record to permit the district court to…