Legal and Practical Implications of the Ninth Circuit’s Cottonwood Environmental Law Center v. U.S. Forest Service Decision Under the Endangered Species Act

Legal and Practical Implications of the Ninth Circuit’s Cottonwood Environmental Law Center v. U.S. Forest Service Decision Under the Endangered Species Act

Legal and Practical Implications of the Ninth
August 2, 2022
Circuit’s Cottonwood Environmental Law
Erin H. Ward
Center v. U.S. Forest Service Decision Under
Legislative Attorney

the Endangered Species Act
Pervaze A. Sheikh
Specialist in Natural
The Endangered Species Act of 1973 (ESA; P.L. 93-205) generally requires federal agencies to
Resources Policy
consult with the U.S. Fish and Wildlife Service (FWS) or the National Marine Fisheries Service

(NMFS) (together, the Services), as applicable, when their discretionary actions may affect either
Katie Hoover
species listed under the ESA or the designated critical habitat for those species. The consultation
Specialist in Natural
process is intended to ensure federal agencies do not jeopardize listed species or adversely
modify listed species’ critical habitat. The process also may require significant resources from
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the federal agency and the Services and might delay implementation of agency actions.

The Services’ implementing regulations require federal agencies to reinitiate this consultation
process when any of four specified triggering events takes place that may change the Services’ conclusions about the effects
of the action. Concerns over allocation of resources and project delays due to the consultation process under the ESA have
caused certain stakeholders to question which agency actions meet the regulatory criteria for triggering reinitiation of
consultation requirements and, as a policy matter, which agency actions should trigger such requirements. Other stakeholders
contend that reinitiating consultation ensures listed species and critical habitat are protected and that the requirements should
apply broadly.
A critical recent issue has been whether adopted plans for managing areas of federal land do (or should) require reinitiation of
consultation when triggered. This issue has been raised on multiple occasions with respect to land and resource management
plans (forest plans) adopted by the U.S. Forest Service (FS) under the National Forest Management Act (NFMA; P.L. 94-
588) to manage the National Forest System. The issue also extends to land use plans adopted by the Bureau of Land
Management (BLM) for managing public lands under the Federal Land Policy and Management Act of 1976 (FLPMA; P.L.
94-579). The Ninth and Tenth Circuits have reached different conclusions on reinitiating consultation in the context of forest
plans. In 2015, the Ninth Circuit held in Cottonwood Environmental Law Center v. U.S. Forest Service (Cottonwood) that the
FS must reinitiate consultation on forest plans when a triggering event occurs—in that case, the designation of critical habitat
in the area affected by the action. This holding is consistent with Ninth Circuit precedent (specifically, its 1994 decision in
Pacific Rivers Council v. Thomas) but conflicts with the 2007 Tenth Circuit opinion in Forest Guardians v. Forsgren, which
held that the FS did not need to consult on an adopted forest plan.
In 2018, Congress enacted legislation that modified how the Cottonwood decision applies to certain forest plans and BLM
land use plans. Under that legislation, the Secretary of Agriculture generally need not reinitiate consultation for previously
adopted forest plans when new species are listed or critical habitat is designated under the ESA, subject to certain limitations.
The law also exempted certain BLM land use plans under FLPMA from reinitiation of consultation for new species or new
designations of critical habitat. In 2019, the Services amended the implementing regulations to include these exemptions and
extend the exemption to all BLM land use plans. That statutory exemption is limited—there are still circumstances in which
the FS and BLM must reinitiate consultation—and when such circumstances occur, the agencies remain subject to different
rules in the Ninth and Tenth Circuits.
Due to the limitations of the 2018 legislation, debate continues over whether Congress should act again to address the ESA’s
requirements for reinitiating consultation. Some stakeholders and agency officials contend that reinitiating consultation on
adopted forest plans in response to a triggering event is inefficient and duplicative, because those issues are addressed during
project-level consultation. In contrast, other stakeholders contend that reinitiating consultation is more efficient at the plan
level and that any potential impacts are relatively minimal. The extent to which the Cottonwood decision has impacted FS
resource allocations and operations is difficult to ascertain, primarily due to data constraints. In light of these considerations,
Congress could consider enacting legislation to clarify how the reinitation requirement applies to forest plans and land use
plans.
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Contents
Forest Plans and ESA Section 7 Consultation ................................................................................. 1
FS Forest Plans and Projects ..................................................................................................... 2
FS Forest Plans ................................................................................................................... 2
FS Projects .......................................................................................................................... 3
Section 7 Consultation Under the ESA ..................................................................................... 4
Initial Consultation Under Section 7 ................................................................................... 4
Reinitiation of Consultation ................................................................................................ 6
Enforcement and Citizen Suits ............................................................................................ 7
Legal History and Implications of Cottonwood .............................................................................. 7
Ninth Circuit’s 1994 Pacific Rivers Council Decision ............................................................. 8
Supreme Court’s 2004 Southern Utah Wilderness Alliance Decision ...................................... 8
Tenth Circuit’s 2007 Forest Guardians Decision ..................................................................... 9
Ninth Circuit’s 2015 Cottonwood Decision .............................................................................. 9
Policy Considerations Following the Cottonwood Decision ............................................ 10
Legislative Response in FY2018 Omnibus Act ...................................................................... 12
Services’ 2019 Amendments to the ESA Implementing Regulations ..................................... 14
Considerations for Congress.......................................................................................................... 15
Stakeholder Views on Section 7 Consultation for Programmatic Plans .................................. 15
Evaluating the Effects of the Cottonwood Decision ............................................................... 16
Legislative Alternatives for Reinitiation of Consultation on Forest Plans .............................. 17

Figures
Figure 1. Federal Circuit Court Regions Relative to the National Forest System ......................... 12

Contacts
Author Information ........................................................................................................................ 18

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he Endangered Species Act of 1973 (ESA) generally requires federal agencies to consult
with the U.S. Fish and Wildlife Service (FWS) or the National Marine Fisheries Service
T (together, the Services), as applicable, when their discretionary actions may affect either
species listed under the act or designated critical habitat for those species.1 The Services’
implementing regulations require federal agencies to reinitiate this consultation process when
certain triggering events take place that may change the Services’ conclusions about the effects of
the action.2 These processes are intended to ensure federal agencies do not jeopardize listed
species or adversely modify listed species’ critical habitat.3 They also may require significant
resources from the federal agencies and the Services and may delay implementation of agency
actions.
Stakeholders and courts have disagreed as to whether consultation must be reinitiated when a
triggering event occurs in relation to U.S. Forest Service (FS) forest plans, which are adopted to
guide FS decisionmaking about land use while they remain in effect. The Ninth and Tenth
Circuits have addressed this issue and have reached differing conclusions. In 2015, the Ninth
Circuit held in Cottonwood Environmental Law Center v. U.S. Forest Service (Cottonwood) that
the FS must reinitiate consultation under the ESA on previously adopted forest plans when one of
the four triggering events under the regulations occurs.4 The Ninth Circuit’s Cottonwood holding
conflicts with the 2007 Tenth Circuit opinion in Forest Guardians v. Forsgren,5 in which that
court held the FS did not need to consult on an adopted forest plan.
Concerns over allocation of resources and project delays have caused certain stakeholders to
question whether Cottonwood was correctly decided. As a policy matter, some have questioned
whether forest plans should be subject to reinitiation of consultation requirements. Other
stakeholders maintain that reinitiating consultation on forest plans when the regulatory triggers
occur protects listed species and critical habitat and may streamline such analyses for future
projects subject to the plan.
This report provides background on FS forest plans and projects and on ESA consultation. The
report then describes the underlying circuit court decisions and analyzes how certain provisions
of the FY2018 consolidated appropriations bill,6 which amended the law in response to the
Cottonwood decision, might be interpreted by courts. The report concludes with a section on
issues for Congress and options Congress may consider to address the issues.
Forest Plans and ESA Section 7 Consultation
Whether federal agencies must consult with the Services before taking or continuing with their
actions depends on the nature of the action and its anticipated effect on listed species and critical
habitat. This section describes the requirements governing FS planning for managing national
forest units. It also describes the Section 7 consultation process under the ESA that the FS may be
required to undertake for such plans and projects.

1 16 U.S.C. § 1536(a)(2).
2 50 C.F.R. § 402.16.
3 16 U.S.C. § 1536(a)(2).
4 Cottonwood Env’t. Law Ctr. v. FS, 789 F.3d 1075 (9th Cir. 2015). These four triggering events are discussed below in
“Reinitiation of Consultation.”
5 Forest Guardians v. Forsgren, 478 F.3d 1149 (10th Cir. 2007).
6 P.L. 115-141, § 208, 132 Stat. 1065 (2018).
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FS Forest Plans and Projects
The National Forest System (NFS) comprises nearly 193 million acres of federal lands and
consists of over 200 units designated as national forests, national grasslands, and other
designations.7 The FS engages in two different levels of planning for managing the NFS: unit-
level planning and project-level planning.8 At the unit level, the National Forest Management Act
of 1976 (NFMA) requires the FS to prepare and update comprehensive land and resource
management plans (i.e., forest plans).9 These forest plans establish the framework for guiding
project-level planning and decisionmaking within the NFS unit.
FS Forest Plans
Forest plans guide the FS’s management of the plan area by identifying desired resource
conditions on the ground; determining the suitability of lands for various uses; and specifying the
objectives, standards, and guidelines for activities and uses in the plan area.10 Forest plans provide
management direction and are programmatic in nature, meaning they “provide a framework for
future proposed actions.”11 Specific on-the-ground actions to accomplish those management
objectives are referred to as projects.12 Forest plans generally do not authorize individual actions
or projects, nor do they commit the FS to take any specific action.13 Forest plans may, however,
constrain the FS from authorizing future projects or activities in specific areas.14
When developing forest plans, the FS must comply with laws of general applicability that govern
federal agency actions. These laws include the ESA’s consultation requirements, as well as the
National Environmental Policy Act (NEPA), National Historic Preservation Act, and others.15 For
example, a designated agency official must approve forest plans by publishing the decision

7 The National Forest System (NFS) is defined at 16 U.S.C. § 1609(a).
8 36 C.F.R. § 219.2.
9 P.L. 94-588, 90 Stat. 2949 (codified at 16 U.S.C. §§ 1600–14). The implementing regulations are promulgated at 36
C.F.R. pt. 219 subpt. A. For more information on U.S. Forest Service policies, guidance, and instruction for
implementing the forest planning requirements, see U.S. DEP’T OF AGRICULTURE FOREST SERV., FOREST SERVICE
MANUAL, ch. 1920, Land Management Planning (2019) [hereinafter FSM_1920], https://www.fs.fed.us/im/directives/
fsm/1900/, and U.S. DEP’T OF AGRICULTURE FOREST SERV., LAND MANAGEMENT PLANNING HANDBOOK FSH 1909.12,
ch. 20, (2015) [hereinafter FSH 1909.12_20], https://www.fs.fed.us/im/directives/fsh/1909.12/
wo_1909.12_20_Land%20Management%20Plan.docx. Forest plans is inclusive of plans for all NFS units, including
grasslands and others.
10 36 C.F.R. §§ 219.2(b), 219.7(e).
11 50 C.F.R. § 402.02 (definition of “programmatic consultation”).
12 36 C.F.R. § 219.2(b).
13 Forest plans must include a list of projects that may be proposed within the three to five years after the plan is
adopted, but the plan must explicitly state that the inclusion of those possible projects is not a commitment to those
actions. 36 C.F.R. §§ 219.7(f)(1), FSH 1909.12_20, supra note 9. See specifically § 22.34 – Proposed and Possible
Actions. It is possible for a project to be approved concurrently with a forest plan, but the project is not considered a
plan component or part of the plan. FSH 1909.12_20, supra note 9Error! Bookmark not defined., at 28.
14 FSH 1909.12_20, supra note 9. See specifically § 22.13 – Standards and § 22.14 – Guidelines.
15 National Environmental Policy Act of 1969 (NEPA), Pub. L. No. 91-190, 83 Stat. 852 (codified at 42 U.S.C.
§§ 4321–47); National Historic Preservation Act, Pub. L. No. 89-665, 80 Stat. 915 (1966) (codified at 54 U.S.C.
§ 300101 et seq.). Other relevant laws of general applicability include the Administrative Procedure Act, Pub. L. No.
79-404, 60 Stat. 237 (1946) (codified at 5 U.S.C. § 500 et seq.).
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document—a Record of Decision—in a process that is informed by the preparation of an
environmental impact statement developed according to NEPA procedures.16
The NMFA requires the FS to revise forest plans at least every 15 years to address changing
conditions, management goals, and public use.17 However, forest plans may be amended at any
time to address time-sensitive or specific resource issues.18 Amendments can address new
information, changed resource conditions, or other changed circumstances. Plan amendments
vary in scale and scope; some amendments may apply broadly across the entire NFS unit covered
by the plan area, and other amendments may apply narrowly to a specific resource or area within
the NFS unit.19 At times, the FS has amended several forest plans simultaneously to address
changing conditions across larger geographic scales and multiple NFS units. The time it takes to
complete a plan amendment varies considerably, depending on the scope and nature of the
amendment.20 While FS guidance documents envision plan developments or revisions being
completed within four years,21 most revisions take between five and seven years to complete.22
The FS has developed 130 plans to guide the management of 110 administrative units of the NFS,
with some plans covering multiple NFS units. As of January 2022, the FS reported that 72 plans
required revision (meaning they are older than 15 years) and 19 plans were under revision.23
FS Projects
Projects are the on-the-ground actions that implement the forest plan prepared for a particular
unit. Projects are defined in regulation as “an organized effort to achieve an outcome on NFS
lands identified by location, tasks, outputs, effects, times, and responsibilities for execution.”24
Projects may include activities such as timber harvests, trail maintenance, or issuance of special
use authorizations for pipelines across NFS lands, among many others. Projects must comport
with the resource objectives established in the forest plans.25
Projects must be planned, evaluated, and implemented in accordance with FS procedures that
prescribe how to comply with applicable statutory requirements, such as those regarding ESA
consultation. The timing and scope of review for a given project may vary based on the specific
statutory authority underpinning each project’s implementation, the types of resources at the site

16 42 U.S.C. §§ 4321-4347; FSH 1909.12_20, supra note 9, at 22. See CRS Report RL33152, The National
Environmental Policy Act (NEPA): Background and Implementation, by Linda Luther, for more information on NEPA.
17 16 U.S.C. § 1604(f)(5)(A). Annual appropriations laws have included a provision specifying that the Secretary of
Agriculture is not considered to violate the requirements of RPA/NFMA solely because a forest plan has not been
revised within 15 years, if the Secretary acts in good faith to update such plans. See, e.g., Further Consolidated
Appropriations Act, 2020, P.L. 116-94, div. D, § 407, 133 Stat. 2534 (2019) (codified at 16 U.S.C. § 1604 note).
18 16 U.S.C. § 1604(f)(4). For more information on plan amendments, see FSH 1909.12_20, supra note 9, at 18.
19 36 C.F.R. § 219.13.
20 The scope of the environmental analysis (e.g., categorical exclusion, environmental assessment, or environmental
impact statement) and subsequent decision document (e.g., decision memo, decision notice, or a Record of Decision)
for a forest plan amendment will also depend on the scope and nature of the amendment. FSH 1909.12_20, supra note
9, at 22.
21 FSH 1909.12_20, supra note 9, at 5.
22 National Forest System Land Management Planning, 77 Fed. Reg. 21,161, 21,169 (Apr. 9, 2012).
23 Data provided by the U.S. Forest Service Legislative Affairs office in January 2022.
24 36 C.F.R. § 219.19.
25 50 C.F.R. § 219.15.
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that could be affected, and the level of those potential effects. In some circumstances, a project
may be planned concurrently with a plan amendment to ensure compliance.
Section 7 Consultation Under the ESA
The FS must comply with the requirements of Section 7 of the ESA, among other procedural
requirements, when adopting and carrying out forest plans and projects.26 Depending on the
anticipated effect of the federal agency’s action on listed species and designated critical habitat,
Section 7 may require federal agencies to initiate a consultation process with the Services. The
requirements for consultation are necessary background for the Ninth Circuit’s decision in
Cottonwood.
Section 7 of the ESA requires that federal agencies ensure their discretionary actions, including
the actions of nonfederal parties granted a federal approval, permit, or funding, are “not likely to
jeopardize the continued existence” of any endangered or threatened species or adversely modify
or destroy critical habitat.27 The consultation requirements apply only when there is an action
involving “discretionary Federal involvement or control,” not when actions are mandated by
statute.28 The Services’ implementing regulations define an agency action as
All activities or programs of any kind authorized, funded, or carried out, in whole or in
part, by Federal agencies in the United States or upon the high seas. Examples include, but
are not limited to:
(a) actions intended to conserve listed species or their habitat;
(b) the promulgation of regulations;
(c) the granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-
in-aid; or
(d) actions directly or indirectly causing modifications to the land, water, or air.29
If federal agency actions might adversely affect any listed species or its critical habitat, the
agency must consult with the Services to determine whether the agency action is likely to
jeopardize any listed species or adversely modify critical habitat.30 This process is referred to as a
Section 7 consultation.
Initial Consultation Under Section 7
Before undertaking a proposed action, such as a FS project, a federal agency must determine
whether its proposed action might affect listed species or designated critical habitat.31 If listed
species or critical habitat may be present in the area affected by the action, the federal agency
must assess whether the action is likely to have an effect on such species or critical habitat.
Depending on the nature of the action, the agency first completes a biological evaluation or

26 16 U.S.C. § 1536(a). For more information on the ESA in general, see CRS Report R46677, The Endangered Species
Act: Overview and Implementation, by Pervaze A. Sheikh, Erin H. Ward, and R. Eliot Crafton.
27 16 U.S.C. § 1536(a).
28 50 C.F.R. § 402.03.
29 Id. § 402.02.
30 Action includes any activity authorized, funded, or carried out by a federal agency, including permits and licenses.
See id.
31 16 U.S.C. § 1536(a)(2).
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biological assessment (BA) of the action’s likely effects.32 Informal consultation with the
Services is available at this stage.
If the agency determines an action is not likely to adversely affect any listed species or its critical
habitat, and the Services agree, then the Services can write a letter of concurrence and no further
consultation is needed.33 If the agency determines, however, that the action is likely to adversely
affect a listed species or critical habitat, the agency must initiate formal consultation with the
Services on the action’s effects.34
During formal consultation, the relevant Service evaluates the BA (or other biological evaluation)
and other information provided by the agency, as well as the best available commercial and
scientific data, to determine if the action—as proposed—is likely to jeopardize listed species or
adversely modify critical habitat.35 Once consultation is complete, the Service issues a biological
opinion (BiOp) discussing the Service’s analysis and conclusion.36 If the Service determines the
action is not likely to jeopardize listed species or adversely modify critical habitat, it issues a no
jeopardy BiOp.37 If the Service determines the action is likely to jeopardize listed species or
adversely modify critical habitat, the Service must suggest any reasonable and prudent
alternatives (RPAs) the agency could undertake that the Service believes would avoid
jeopardizing the species or adversely modifying critical habitat.38 If no RPAs are feasible, then the
agency proposing the action must (1) forgo the action, (2) risk violating the ESA, or (3) obtain a
formal exemption from the penalties of the ESA.39
If the Services issue a no jeopardy BiOp or a jeopardy BiOp with RPAs, the Services must
provide the federal agency with an incidental take statement (ITS). The ITS must include (1) the
anticipated impact of any incidental taking (as defined by the ESA) of the species, (2) reasonable
and prudent measures necessary or appropriate to minimize the impact, and (3) terms and
conditions with which the federal agency must comply to implement those measures.40 If the
federal agency complies with the terms and conditions of the ITS when carrying out the action,
any taking of listed species as part of the action is exempt from the ESA’s prohibition on take.41

32 16 U.S.C. § 1536(c). The Services’ implementing regulations only require biological assessments (BAs) for “major
construction activities.” 50 C.F.R. § 402.12(b). The regulations define major construction activity to mean “a
construction project (or other undertaking having similar physical impacts) which is a major Federal action
significantly affecting the quality of the human environment as referred to in [NEPA].” Id. § 402.02. Federal agencies
may still prepare a BA for other types of agency actions, but they may opt instead to prepare a biological evaluation
that need not comply with the regulatory requirements for BAs. Id. § 402.12(b).
33 50 C.F.R. § 402.13. The Services and the federal agency conducting the action may undertake informal consultation
to determine whether formal consultation is required. Id. During this process, the Services may suggest modifications
to the action that avoid likely adverse effects on listed species or critical habitat. Id.
34 Formal consultation also is required if the action may affect listed species or critical habitat and the agency does not
prepare a BA and does not engage in informal consultation with the Services. Id. § 402.14(a)-(b).
35 Id. § 402.14.
36 Id. § 402.14(h).
37 Id. §§ 402.14–15; U.S. FISH & WILDLIFE SERV., Glossary (last updated Dec. 18, 2019), https://www.fws.gov/
midwest/endangered/glossary/index.html.
38 16 U.S.C. § 1536(b)(3).
39 16 U.S.C. § 1536(g); 50 C.F.R. § 402.15.
40 16 U.S.C. § 1536(b). The ESA defines take to mean “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture,
or collect, or to attempt to engage in any such conduct.” Id. § 1532(19). Incidental take is the amount of take of a listed
species that occurs due to an otherwise lawful action. 50 C.F.R. § 402.02.
41 16 U.S.C. § 1536(o)(2).
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The ESA requires the Services to complete consultations within 90 days for a wholly federal
action (i.e., no nonfederal applicant or grant recipient involved), unless the appropriate Service
and the federal agency mutually agree to a longer period (up to 150 days) and reasons are given
for the delay.42 However, in practice, formal consultation may take a year or more. Most
consultations result in no jeopardy opinions, and nearly all of the rest identify RPAs for the
project that allow the agency to move forward.43
The Services’ implementing regulations allow agencies to engage in programmatic consultations
for programmatic actions, such as forest plans.44 Programmatic consultations may be used to
address multiple agency actions that are similar, frequently occurring, or routine in a particular
geographic area or to analyze the effects of programs, plans, policies, or regulations that provide a
framework for future specific actions.45 The federal agency must conduct a separate Section 7
consultation for any individual projects conducted pursuant to a programmatic action, such as a
forest plan, that may affect listed species or critical habitat, but that consultation process may be
streamlined if there is a programmatic BiOp in place.46
Reinitiation of Consultation
After a consultation is complete, federal agencies may be required to reinitiate consultation with
the Services. A federal agency must reinitiate consultation, or the Service may request it, when
(1) the agency has retained “discretionary Federal involvement or control over the action” or such
involvement or control is “authorized by law” and (2) one or more of the following triggering
events occurs:
1. The amount or extent of taking specified in an incidental take statement is
exceeded
2. New information on the species or action reveals effects of the action that may
affect species or critical habitat in a manner or to an extent not previously
considered
3. The identified action is sufficiently modified in a manner that causes an effect to
the listed species or critical habitat that was not considered in the biological
opinion or written concurrence, or
4. A new species is listed or critical habitat designated that may be affected by the
identified action47
When consultation is reinitiated, the Services and relevant federal agency generally follow the
same process as an initial consultation. The Services and federal agency may be able to expedite
the process by relying on analyses conducted for the initial consultation to the extent the action is

42 16 U.S.C. § 1536(b)(1). The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service
(NMFS) begin the 90-day clock when they receive a complete BA with all the information needed for consultation;
action agencies are often asked for more information than the data submitted in the original BA. Action agencies often
object to the delays; the Services respond that consultation requires adequate data about the project.
43 Jacob W. Malcom & Ya-Wei Li, Data Contradict Common Perceptions about a Controversial Provision of the U.S.
Endangered Species Act, 112 PROC. NAT’L ACAD. OF SCI. 15,844–49 (2015).
44 50 C.F.R. § 402.02.
45 Id.
46 See, e.g., NAT’L OCEANIC & ATMOSPHERIC ADMIN., Section 7: Types of Endangered Species Act Consultations in the
Greater Atlantic Region (Dec. 14, 2018), https://www.fisheries.noaa.gov/insight/section-7-types-endangered-species-
act-consultations-greater-atlantic-region.
47 50 C.F.R. § 402.16.
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the same and the underlying data are still the best scientific and commercial data available. The
reinitiated consultation must account for any changes to the action, modifications to the listed
species or critical habitat present in the action area, or new information on those species or
critical habitat and the action’s anticipated effect on them.
Enforcement and Citizen Suits
The Secretaries of the Interior, Commerce, Agriculture, and Treasury and the Department of
Homeland Security are charged with enforcing the ESA and ensuring its requirements are
followed, including the Section 7 consultation provisions.48 The ESA also authorizes the use of
citizen suits, allowing “any person” to bring a civil suit “to enjoin any person, including the
United States and any other governmental instrumentality or agency” for violations of any
provision of the ESA or the implementing regulations, including federal agencies that are subject
to consultation requirements.49 Any person seeking to file such a suit must provide 60 days’
written notice—a notice of intent (NOI) to sue—to the Secretary of the Interior and the alleged
violator.50
In the consultation context, for example, a nongovernmental organization could notify the FS of
its intent to sue the agency for violating the ESA by failing to reinitiate consultation on an
adopted forest plan after one of the Services designates critical habitat within plan area. The
Secretary does not have any obligation to respond to the organization’s notification. When at least
60 days have passed after the notification, the nongovernmental organization may file its suit at
any time; the nongovernmental organization also may choose not to file the suit after providing
notice. In court, that organization would have the legal burden to prove the FS failed to reinitiate
consultation in violation of the ESA.51
Legal History and Implications of Cottonwood
Courts have reached different conclusions about how the ESA consultation requirements, and
particularly the requirement to reinitiate consultation, apply to previously adopted forest plans.
Specifically, the Ninth and Tenth Circuits have reached different conclusions in interpreting this
requirement.52 The Ninth Circuit’s Cottonwood decision, moreover, led to legislative and
regulatory actions that modified the effect of that decision.

48 16 U.S.C. § 1540(e)(1).
49 The ESA defines person as “an individual, corporation, partnership, trust, association, or any other private entity; or
any officer, employee, agent, department, or instrumentality of the Federal Government, of any State, municipality, or
political subdivision of a State, or of any foreign government; any State, municipality, or political subdivision of a
State; or any other entity subject to the jurisdiction of the United States.” Id. § 1532(13). Id. § 1540(g)(1)(A).
50 Id. § 1540(g)(2)(A).
51 See, e.g., Defenders of Wildlife v. Bureau of Ocean Energy Mgmt. Regul. Env’t, 871 F. Supp. 2d 1312, 1323 (S.D.
Ala. 2012).
52 For reference, the Ninth Circuit has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada,
Oregon, Washington, Guam, and the Northern Mariana Islands. U.S. COURTS FOR THE NINTH CIRCUIT, Map of the Ninth
Circuit, https://www.ca9.uscourts.gov/information/circuit-map/ (last visited Aug. 1, 2020). The Tenth Circuit has
jurisdiction over Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. U.S. COURT OF APPEALS FOR THE
TENTH CIRCUIT, General Information, https://www.ca10.uscourts.gov/clerk/general-information (last visited Aug. 1,
2022).
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Ninth Circuit’s 1994 Pacific Rivers Council Decision
In 1994, the Ninth Circuit held in Pacific Rivers Council v. Thomas that the FS was required to
reinitiate consultation on a forest plan after the National Marine Fisheries Service listed the
chinook salmon—which resided in the area covered by the forest plan—as a threatened species.53
The court concluded that forest plans are “ongoing agency action” because they “have an ongoing
and long-lasting effect even after adoption” because “every individual project planned in both
national forests involved in this case is implemented according to the [forest plans].” 54 The court
accordingly determined that ESA’s Section 7 consultation requirements continued to apply to
forest plans after their adoption.55 In its opinion, the court determined that adopted forest plans
were “actions” within the meaning of Section 7 of the ESA without addressing the implementing
regulations that interpret that provision.
Supreme Court’s 2004 Southern Utah Wilderness Alliance Decision
In 2004, the Supreme Court issued a decision, Norton v. Southern Utah Wilderness Alliance
(SUWA), that became influential in analyzing the applicability of ESA consultation obligations
after a forest plan has been adopted.
SUWA addressed a different statute, NEPA, which requires federal agencies to examine the
possible environmental impacts of any “major federal action.” Similar to the Services’
requirement to reinitiate consultation under the ESA in response to certain triggering events, the
Council on Environmental Quality (CEQ) has issued regulations under NEPA requiring that
federal agencies supplement their environmental reviews when “[t]here are significant new
circumstances or information relevant to environmental concerns and bearing on the proposed
action or its impacts.”56 The question before the Court was whether these regulations required
BLM to supplement its environmental analysis for a land use plan that it had previously
adopted.57
The Supreme Court held that BLM was not required to supplement its NEPA analysis. The CEQ
supplementation regulation, the Court said, applies “only if ‘there remains ‘major federal actio[n]’
to occur.’”58 The SUWA Court determined that the “‘[a]pproval of a [land use plan]’ is a major
Federal action” that requires NEPA review, wherein the “land use plan is the ‘proposed action’
contemplated by the regulation.”59 However, the Court held that the “action is completed when
the plan is approved” and therefore there was “no ongoing ‘major Federal action’ that could
require supplementation.”60
SUWA does not govern whether the FS or BLM must reinitiate consultation under the ESA for
forest plans or land use plans, respectively, because NEPA involves a different statutory context
with different requirements for when further analysis is required. The Tenth Circuit and the FS

53 30 F.3d 1050, 1053–56 (9th Cir. 1994).
54 Id. at 1053.
55 Id. at 1053–56.
56 40 C.F.R. § 1502.9(c)(1)(ii).
57 Norton v. S. Utah Wilderness All. (SUWA), 542 U.S. 55, 72–73 (2004).
58 Id. at 72–73 (citing Marsh v. Ore. Nat. Res. Council, 490 U.S. 360 (1989)).
59 Id. at 73 (emphasis in original).
60 Id.
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found SUWA to be persuasive authority, however, when concluding that federal agencies are not
required to consult under the ESA on adopted programmatic actions.
Tenth Circuit’s 2007 Forest Guardians Decision
Three years after the Supreme Court’s SUWA decision, the Tenth Circuit addressed whether the
FS must consult under the ESA on adopted forest plans in Forest Guardians v. Forsgren. Forest
Guardians alleged that the FS was required to consult on adopted forest plans for the Carson and
Santa Fe National Forests after the FWS listed a distinct population segment of the Canada Lynx
as threatened.61 The Tenth Circuit held that Forest Guardians had not alleged agency “action”
sufficient to trigger the consultation requirements in Section 7 of the ESA.62 The Tenth Circuit
declined to follow the Ninth Circuit’s interpretation of the ESA consultation requirement in
Pacific Rivers Council. Instead, the court applied reasoning similar to SUWA’s to hold that the FS
need not consult on adopted forest plans.63
Though the Tenth Circuit recognized that a forest plan “might authorize an activity or program”
that could constitute “action” requiring ESA consultation, it noted that forest plans “‘typically do
not approve or execute projects and activities,’ and do not authorize the irreversible commitment
of forest resources.”64 The court also observed that “only in the presence of such activity or
program, i.e., ‘agency action,’ does a duty to consult ever arise under § 7(a)(2) [of the ESA].”65
Accordingly, though the Tenth Circuit did not preclude the possibility that a forest plan, as
opposed to a project, might directly authorize a particular activity or program, the court
determined that implementation of the forest plan after its adoption did not—on its own—
constitute “action” requiring ESA consultation.66
In so holding, the Tenth Circuit disagreed with the Ninth Circuit’s analysis in Pacific Rivers
Council, concluding it was “painfully apparent that ‘standards,’ ‘guidelines,’ ‘policies,’ ‘criteria,’
‘land designations,’ and the like appearing within a ... [forest plan] do not constitute ‘action’
requiring consultation under § 7(a)(2) of the ESA.”67 The Tenth Circuit compared forest plans to
agency regulations—the “promulgation of regulations” is by definition an “action” under the
consultation regulations, but the implementation of existing regulations has not been considered
“ongoing action.”68 Finding no mention in the complaint of any specific activity, project, or
program that the forest plan authorized, the Tenth Circuit accordingly held that the plaintiffs had
not alleged any “action” requiring ESA consultation.69
Ninth Circuit’s 2015 Cottonwood Decision
In 2015, the Ninth Circuit revisited the question of whether adopted forest plans are agency action
that require consultation in Cottonwood Environmental Law Center v. U.S. Forest Service.70 After

61 Forest Guardians v. Forsgren, 478 F.3d 1149, 1151 (10th Cir. 2007).
62 Id. at 1156–57. The court did not address the implementing regulations requiring reinitiation of consultation.
63 Id. at 1160.
64 Id. at 1156 (quoting 36 C.F.R. § 219.3(b)).
65 Id.
66 Id. at 1156–57.
67 Id. at 1159.
68 Id.
69 Id. at 1157–60.
70 789 F.3d 1075 (9th Cir. 2015).
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the FWS listed a distinct population segment of Canada Lynx as a threatened species, the FS
proposed the Northern Rocky Mountains Lynx Management Direction (i.e., the Lynx
Amendments). The FS initiated and completed consultation for the Lynx Amendments and
subsequently amended the forest plans for 18 national forests.71 Months later, the FWS designated
additional critical habitat for the Canada Lynx that included areas within 11 of those national
forests.72 The FS declined to reinitiate consultation on the Lynx Amendments after the FWS
designated the additional critical habitat.73
The Cottonwood Environmental Law Center (Cottonwood) sued the FS for declining to reinitiate
consultation after the FWS designated the additional critical habitat.74 The FS, relying on SUWA,
argued it was not obligated to reinitiate consultation because the agency action was complete
when the agency adopted the Lynx Amendments and amended the forest plans.75 The Ninth
Circuit disagreed. Unlike the prior Ninth and Tenth Circuit decisions, the Cottonwood opinion
relied on the Services’ regulations implementing the ESA to determine that the FS was required to
reinitiate consultation. The court observed that under those regulations—unlike the NEPA
requirements at issue in SUWA—the obligation to reinitiate consultation “does not terminate
when the underlying action is complete” but rather continues so long as the agency retains
“discretionary Federal involvement or control.”76 Because the FS “remains ‘involve[d]’ in the
Forest Plans” and “retains exclusive ‘control’ over its own Forest Plans through their
implementation,” the court determined that forest plans are agency actions that require reinitiation
of consultation.77 Accordingly, the court held that the FS was required to reinitiate consultation
for the affected forest plans when the FWS designated additional critical habitat for the Canada
Lynx.78
Policy Considerations Following the Cottonwood Decision
Following the Ninth Circuit’s decision in Cottonwood, the FS was required to reinitiate
consultation for previously adopted forest plans when triggering events occurred in the Ninth
Circuit but not the Tenth Circuit. Some stakeholders, including agency officials, expressed
concerns about the decision’s effects, claiming the Cottonwood decision negatively affected FS
resources and operations.79 For example, agency officials have testified that “the consequences
are severe.... [T]his Cottonwood decision is duplicative.... It takes numerous resources away from
getting work done on the ground.”80 Other stakeholders claim any potential effects are relatively

71 Id. at 1077–78.
72 Id.
73 Id.
74 Id. at 1078–79.
75 Id. at 1084–85.
76 Id.
77 Id. at 1087–88.
78 Id. at 1088.
79 For examples of statements claiming that the decision resulted in negative impacts to agency resources and
operations, see U.S. Congress, Sen. Comm. on Energy and Nat. Res., Hearing to Consider Pending Legislation, 117th
Cong., 1st sess., Oct. 21, 2021 (testimony of Christopher French, Deputy Chief, FS); U.S. Congress, Sen. Comm. on
Energy and Nat. Res., The President’s Budget Request for the USDA Forest Service for Fiscal Year 2020, 116th Cong.,
1st sess., Apr. 9, 2019, S. HRG. 116-301 (testimony of Vicki Christiansen, Chief, FS); and National Association of State
Foresters, “NASF submits official comments on proposed Cottonwood rule,” press release, Feb. 11, 2021,
https://www.stateforesters.org/newsroom/nasf-submits-official-comments-on-proposed-cottonwood-rule/.
80 U.S. Congress, Sen. Comm. on Energy and Nat. Res., The President’s Budget Request for the USDA Forest Service
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minimal.81 Potential resource-related effects generally would include staff time (e.g., the time
expended engaging in reinitiation of consultation, responding to NOIs, or judicial challenges
relative to performing other tasks), while potential operations-related concerns would generally
include projects being delayed while plan-level consultation is reinitiated and as a result of the
judicial review process.
Some stakeholder concerns are based on the different procedural requirements that exist across
NFS regions or units as a result of the different Ninth and Tenth Circuit decisions. Only those
NFS units within the jurisdiction of the Ninth Circuit are bound by the Cottonwood decision. NFS
regions and units do not align with circuit court boundaries (see Figure 1), so there may be
instances where certain NFS units are subject to different requirements related to reinitiating
consultation than other units within the same region. Understanding which requirements apply
may create challenges and may contribute to real or perceived implementation constraints for the
FS and related stakeholders.
 In total, 123 million acres and 128 units of the NFS system are within the Ninth
Circuit (64% of the total NFS acreage and 39% of the total NFS units).82 This
includes the entirety of NFS Regions 5, 6, and 10 and portions of NFS Regions 1,
4, and 3.
 In total, 42 million acres and 57 units of the NFS system are within the Tenth
Circuit (22% of the total NFS acreage and 20% of the total NFS units).83 This
includes portions of NFS Regions 2, 3, 4, and 8.
For more information on potential effects of the Cottonwood decision on FS resources, see
“Evaluating the Effects of the Cottonwood Decision.”

for Fiscal Year 2020, 116th Cong., 1st sess., Apr. 9, 2019, S. HRG. 116-301 (testimony of Vicki Christiansen, Chief, FS).
81 For examples of statements claiming that impacts are minimal, see Center for Biological Diversity, “Recent Federal
Agency Cooperation on Sierra Nevada Frog Conservation Undermines Rationale for Altering Act,” press release, July
10, 2017, https://www.biologicaldiversity.org/news/press_releases/2017/sierra-nevada-frogs-07-10-2017.php.
82 CRS calculations using data from FS, Land Areas Report (LAR)—as of September 30, 2021, Table 4,
https://www.fs.fed.us/land/staff/lar/LAR2021/LARTable4.pdf.
83 Ibid.
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Figure 1. Federal Circuit Court Regions Relative to the National Forest System

Source: Prepared by CRS from data available from FS Geodata Clearinghouse, at http://data.fs.usda.gov/geodata/
and the U.S. Courts, https://www.uscourts.gov/about-federal-courts/federal-courts-public/court-website-links.
Notes: Alaska and the conterminous United States and Puerto Rico are represented at different scales. Hawaii
and other U.S. territories are not included because they do not contain National Forest System lands.
Legislative Response in FY2018 Omnibus Act
In 2018, Congress enacted legislation that modified how the Cottonwood decision applies to
certain forest plans and BLM land use plans. The FY2018 consolidated appropriations act
(omnibus act) amended 16 U.S.C. § 1604 to provide that the Secretary of Agriculture need not
reinitiate consultation for previously adopted forest plans when new species are listed or critical
habitat is designated.84 This exemption from the requirement to reinitiate consultation does not
apply if
(i) 15 years have passed since the date on which the Secretary [of Agriculture] adopted the
[forest] plan ... ; and
(ii) 5 years have passed since [March 23, 2018, when the omnibus bill was enacted,] or the
date of the listing of a species as threatened or endangered for a species known to occur on
the unit or the designation of critical habitat within the unit [pursuant to the ESA],
whichever is later.85

84 P.L. 115-141, § 208, 132 Stat. 1065 (2018). The Services have subsequently amended the regulation requiring
reinitiation of consultation to incorporate this exception and extend it to land management plans developed by the
Bureau of Land Management (BLM) pursuant to the Federal Land Policy and Management Act (FLPMA). Endangered
and Threatened Wildlife and Plants; Regulations for Interagency Cooperation, 84 Fed. Reg. 44,976, 45,017 (Aug. 27,
2019); 50 C.F.R. § 402.16.
85 P.L. 115-141, § 208; 16 U.S.C. § 1604(d)(2)(B).
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As discussed above, federal law requires the Secretary of Agriculture to revise forest plans “at
least every 15 years.”86 Although Congress has provided that the FS does not violate that
requirement if it is “acting expeditiously and in good faith” to revise out-of-date plans,87 those
plans would not be exempt from the requirement to reinitiate consultation. Even for those out-of-
date forest plans, the exemption from the requirement to consult remains available until five years
after the later of (1) the enactment of the omnibus act or (2) the listing of the species or the
designation of critical habitat (i.e., the triggering event).88 The provision clarifies that the
exemption does not modify the Secretary’s obligation to consult on specific projects under a plan
or on modifications, amendments, or revisions to a plan.89
In practice, this provision exempts all forest plans—even out-of-date ones—from the requirement
to reinitiate consultation under one of the four triggering events—newly listed species or
designated critical habitat—for at least five years following the omnibus act (i.e., until March 23,
2023).90 After that time, the FS could be required to reinitiate consultation for out-of-date forest
plans if five years have passed since a new species was listed that is “known to occur on the unit”
or critical habitat was designated within the unit after the forest plan was adopted.91 In effect, the
omnibus act provision appears to postpone the need to reinitiate consultation after the relevant
triggering event rather than permanently exempting the Secretary from reinitiating consultation.
No court has interpreted this language to date.
The omnibus act also exempted BLM from reinitiating consultation for previously adopted land
use plans for lands in the Oregon and California Railroad grant land or Coos Bay Wagon Road
grant land when new species are listed or critical habitat is designated.92 Unlike the exemption for
forest plans, this exemption did not include any additional conditions. As with the forest plan
provision, the BLM exemption provision makes clear that the exemption does not affect
consultation obligations for projects, development of new land use plans, or revisions or other
significant changes to existing land use plans.93
The scope of the omnibus act exemption is limited. It addresses only forest plans and a limited
number of BLM land use plans—not other programmatic agency actions that might be subject to
the requirement to reinitiate consultation. Furthermore, the Services’ regulations (and thus the
Cottonwood decision) require reinitiation of consultation after three other triggering events not
addressed in the omnibus act: (1) exceeding the amount or extent of take specified in the
incidental take statement; (2) new information revealing that the effects of the agency action
“may affect listed species or critical habitat in a manner or to an extent not previously
considered”; or (3) subsequent modification of the agency action “in a manner that causes an

86 16 U.S.C. § 1604(f)(5)(A). Any such revision does not qualify for the exemption and would require consultation,
which would include any species listed or critical habitat designated since the FS adopted the forest plan. P.L. 115-141,
§ 208; 16 U.S.C. § 1604(d)(2)(C).
87 See, e.g., P.L. 116-6, § 407, 133 Stat. 259 (2019); P.L. 115-141, § 407, 132 Stat. 688 (2018); P.L. 115-31, § 407, 131
Stat. 495 (2017).
88 P.L. 115-141, div. O, tit. II, § 208; 16 U.S.C. § 1604(d)(2)(B).
89 P.L. 115-141, div. O, tit. II, § 208; 16 U.S.C. § 1604(d)(2)(C).
90 P.L. 115-141, div. O, tit. II, § 208; 16 U.S.C. § 1604(d)(2)(B).
91 Id.
92 P.L. 115-141, div. O, tit. II, § 209; 43 U.S.C. § 2606. The Oregon and California Railroad grant land and Coos Bay
Wagon Road lands consist of nearly 3 million acres of land within 18 counties in the state of Oregon. For context,
BLM manages 244 million acres in total.
93 Id.
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effect to the listed species or critical habitat that was not considered” in the initial consultation.94
The omnibus act did not affect those requirements. The omnibus act also did not affect the
requirement to consult with respect to a project carried out pursuant to a forest plan or the
modification, amendment, or revision of a forest plan.95
Services’ 2019 Amendments to the ESA Implementing Regulations
In 2019, the Services amended the ESA implementing regulations to incorporate a provision
similar to the FY2018 omnibus provision, among other things.96 The Services’ regulations went
beyond the legislative exemption in a few substantive ways. First, they created a regulatory
exemption for all land use plans adopted by BLM, not just those managing the specific lands
included in the FY2018 omnibus act.97 The Services also allowed that regulatory exemption to
extend to BLM land use plans indefinitely, without the timing limitations of the FY2018 omnibus
act applied to forest plans, because they anticipated that BLM would keep its land use plans up to
date.98 For forest plans, the Services’ regulations incorporated the 15-year limitation included in
the omnibus legislation.99 Second, they rephrased the clarification from the omnibus act to
explicitly provide that the exemption applies to either forest plans or land use plans only if “any
authorized actions that may affect the newly listed species or designated critical habitat will be
addressed through a separate action-specific consultation.”100
Pursuant to the FY2018 omnibus legislation and the Services’ regulations, the FS and BLM are
not required to reinitiate consultation for forest plans that meet certain conditions and land use
plans when new species are listed or new critical habitat is designated. For the remaining three
triggers, existing case law would require the FS to reinitiate consultation in the Ninth Circuit but
not in the Tenth Circuit.
In January 2021, the Services proposed additional amendments to the implementing regulations
for Section 7 consultation. Among other things, the proposed rule would eliminate the time
constraints for the forest plan exemption.101 The proposed revisions also would exempt forest
plans and land use plans from the requirement to reinitiate consultation when “receipt of new
information revealing effects of the action that may affect the listed species or critical habitat in a
manner or to an extent not previously considered,” which currently triggers reinitiation.102 The
proposed rule would add an explicit limitation that the exemption applies only if the triggering
information (i.e., new listing, new designation, or new information) would be addressed in any
future consultations for specific actions.103 If the regulatory amendments were adopted as
proposed, the FS and BLM would not be required to reinitiate consultation for new listings or
critical habitat or new information as long as such information would be accounted for in any
project-specific consultations.

94 50 C.F.R. § 402.16(a)(1)–(3).
95 P.L. 115-141, div. O, tit. II, § 208; 16 U.S.C. § 1604(d)(2)(C).
96 84 Fed. Reg. 44,976 (Aug. 27, 2019).
97 50 C.F.R. § 402.16(b).
98 84 Fed. Reg. 44,976, 45,011 (Aug. 27, 2019).
99 Id.
100 50 C.F.R. § 402.16(b).
101 86 Fed. Reg. 2373, 2379 (Jan. 12, 2021).
102 Id.
103 Id.
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Considerations for Congress
Congress may consider enacting legislation to clarify how consultation under the ESA applies to
land use plans adopted by the FS and BLM. This section provides stakeholder perspectives on
requiring reinitiation of consultation on forest plans and other programmatic actions. It then
outlines the potential effects of the Cottonwood decision on FS resources and operations. Finally,
this section provides legislative options for Congress to address the decision if Congress so
chooses.
Stakeholder Views on Section 7 Consultation for Programmatic
Plans
Stakeholders differ on the appropriate requirements for consultation under the ESA for forest and
land use plans. Some stakeholders assert that requiring reinitiation of consultation for
programmatic forest and land use plans when changed circumstances occur (e.g., a new species is
listed, critical habitat is designated, or new information on listed species becomes available)
might block or delay many FS forest management activities. For example, some stakeholders
might argue that if the FS or BLM has to reinitiate consultation on a forest or land use plan each
time there is sufficient new information on a listed species, the implementation of projects under
the plan may be delayed during the consultation process.104 Further, some stakeholders claim that
reinitiating consultation on plans consumes agency resources and has no direct conservation
benefit, since consultation is done on individual projects under the plan.105 Stakeholders in favor
of reinitiating consultation at the program or plan level due to any of the four triggers to reinitiate
consultation argue that consultation under Section 7 of the ESA at the programmatic level does
not cause significant delays.106
Underlying these differences is a general disagreement among stakeholders on the appropriate
and most efficient level of planning at which the FS should address new listings or critical habitat
designations and the other triggering events that require additional consultation. In particular,
agency officials contend that the requirement to reinitiate consultation on forest plans is
duplicative and an inefficient allocation of resources because those issues are addressed during
project-level consultation.107 Although the timing and scope of project-level planning varies, most
projects would be subject to some level of ESA Section 7 consultation. Because of this, agency
officials and other stakeholders contend that project-level consultation would sufficiently capture
any on-the-ground issues related to potential triggering events that had occurred since the
adoption of the underlying forest plan. Some stakeholders also contend that consultation at the

104 Letter from American Woodcock Society et al. to Hon. Joe Manchin, Chairman, Senate Comm. on Energy and Nat.
Res., Oct. 20, 2021, https://congressionalsportsmen.org/uploads/page/Final_Cottonwood_Sign_On_Letter_10-20-
2021_1.pdf.
105 Letter from Nat’l Ass’n of State Foresters to U.S. Fish and Wildlife Serv., Public Comments, Feb. 11, 2021,
https://southernforests.org/legislation/position-statements/federal-forest-management/
NASF%20Public%20Comments%20to%20USFWS%20on%20Cottonwood-Proposed-Rule%20-
%20February%202021.pdf.
106 Brett Hartl, Documents Debunk Sen. Daines’ Endangered Species Act, Forest Management Claims, Center for
Biological Diversity, July 10, 2017, https://www.biologicaldiversity.org/news/press_releases/2017/sierra-nevada-frogs-
07-10-2017.php.
107 Am. Woodcock Society, Archery Trade Ass’n, and Backcountry Hunters and Anglers, et al., Cottonwood Fix,
Congressional Sportsmen’s Foundation , Oct. 20, 2021, https://congressionalsportsmen.org/uploads/page/
Final_Cottonwood_Sign_On_Letter_10-20-2021_1.pdf.
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program or plan level could increase the need for resources and may lead to more lawsuits that
could delay projects from being implemented, resulting in potential economic hardship for
entities involved in the projects.108 Stakeholders who favor plan-level consultation assert that it is
necessary to fully consider the effects of new information on species and habitat, and in particular
the cumulative effects of multiple activities on listed species.109 They contend that plan-level
reviews can address broader threats and conservation solutions that cannot be determined at the
project or site level.110
Evaluating the Effects of the Cottonwood Decision
Estimating or analyzing the effects of the Cottonwood decision (and the subsequent omnibus
legislative fix) on FS operations and resources is challenging, primarily due to data constraints.
The FS and other stakeholders contend that the Cottonwood decision and any resulting
reinitiation of consultation has had detrimental effects on FS operations. This includes claims of
projects being delayed while consultation is reinitiated or while staff is occupied with responding
to NOIs or legal challenges. Agency officials have testified, for example, that reinitiating
consultation “takes numerous resources away from getting work done on the ground.”111
The FS has provided limited data to support or refute these claims.112 Similar to many other
federal agencies, the FS does not routinely track or report the cost or personnel time associated
with the development of forest plans or project-level decisions, engaging in consultation, or
responding to administrative or judicial challenges to those decisions.113 For project-level
planning, the FS does not routinely track the time between the publication of a decision document
and the on-the-ground implementation of that project.114 Because of these limitations, there is
insufficient baseline data with which to authoritatively identify and compare the effect specific
factors may have on staffing or project development and implementation timelines. These data
constraints also limit resource allocation comparisons between those national forests bound by the
different circuit court decisions.
Different methodological approaches could possibly identify the presence or absence of specific
effects. For example, examining data regarding agency outputs or other performance metrics
(e.g., acreage treated to reduce wildfire risk, miles of streams restored, volume of timber sold or

108 Joe Fox, Public Comments Processing: Attn: U.S. Fish and Wildlife Service, Nat’l Ass’n of State Foresters, Feb. 11,
2021, https://www.stateforesters.org/wp-content/uploads/2021/02/NASF-Comments-to-FWS-Cottonwood-Proposed-
Rule-02112021.pdf.
109 Defenders of Wildlife, “New Land Management Legislation Could Harm Imperiled Wildlife,” press release, June
24, 2020, https://defenders.org/newsroom/new-land-management-legislation-could-harm-imperiled-wildlife.
110 Ibid.
111 U.S. Congress, Sen. Comm. on Energy and Nat. Res., The President’s Budget Request for the USDA Forest Service
for Fiscal Year 2020, 116th Cong., 1st sess., Apr. 9, 2019, S. HRG. 116-301 (testimony of Vicki Christiansen, Chief, FS).
112 To assess the effects of the Cottonwood decision on FS operations, CRS requested data and documents from the FS.
In response to this request, the FS provided CRS with data to estimate the potential effects of receiving and responding
to Notice of Intents (NOIs) on ESA-related challenges to project implementation. Because CRS is unable to
independently verify whether the data are accurate or complete, they are not included herein. The FS also provided data
estimating that re-consultation on the Lynx Amendments required nearly 500 staff days at a cost of $246,555.
However, the FS did not contextualize these figures relative to the use of FS resources for other purposes, so their
significance is unclear.
113 U.S. Government Accountability Office, National Environmental Policy Act: Little Information Exists on NEPA
Analyses, GAO-14-370, April 2014, https://www.gao.gov/products/gao-14-370.
114 For some projects, implementation may not occur within a certain time period following publication of the decision
document to provide for administrative objections to those decisions to be filed and addressed.
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harvested) across different NFS units and time frames could potentially identify any operations-
related impacts.115 CRS examined FS timber harvest data from FY2015 (the year Cottonwood
was decided) through FY2021 and was unable to identify any noticeable difference in the overall
volume of timber sold or harvested across the entire NFS and between the NFS units covered by
the Ninth Circuit relative to other NFS units. A robust statistical analysis may reveal trends and
identify the related causal factors. This may be an area of interest to academic researchers.
Alternatively, Congress could consider requesting the Government Accountability Office conduct
an official audit.
Even with adequate baseline data from which to draw comparisons, it may be difficult to assess
what level of resource allocation is effective or efficient because those metrics may be, to some
extent, value-based and not purely objective. For example, some may believe that reinitiation of
consultation for any reason is an effective use of agency resources only if it results in a changed
or improved decision or agency action and that purely procedural improvements are not an
efficient allocation of resources. Others may believe that reinitiation of consultation is an
effective use of agency resources even if it does not result in a changed decision, particularly if
the process satisfies the agency’s statutory and legal obligations and provides transparency in the
government decisionmaking process.
Legislative Alternatives for Reinitiation of Consultation on Forest
Plans
As discussed above, pursuant to the FY2018 omnibus act and the Services’ regulations, the FS
and BLM are not required to reinitiate consultation for forest plans that meet certain conditions
and land use plans when new species are listed or new critical habitat is designated. For the
remaining three triggers, existing case law would require the FS to reinitiate consultation in the
Ninth Circuit but not in the Tenth Circuit.
Congress may retain this status quo or enact legislation to clarify whether and how the reinitiation
of consultation requirements apply to forest plans and land use plans. If Congress views
reinitiation of consultation on forest plans and land use plans as a good use of agency resources in
the interest of species protection, Congress could enact legislation requiring the FS and BLM to
reinitiate consultation on all forest plans and land use plans whenever any of the regulatory
triggers occurs. If Congress concludes that changed circumstances (such as new listings or
studies) are best addressed only at the project level or that reinitiation of consultation on forest
plans and land use plans is not necessary for species protection or is not an efficient means of
achieving that goal, Congress could provide that no forest plan or land use plan that has already
been adopted, amended, or revised is subject to reinitiation of consultation for any regulatory
trigger. As an example, S. 2561 in the 117th Congress would appear to preclude forest plans and
land use plans from constituting the types of “actions” to which the requirements to reinitiate
consultation apply under the regulations, among other things.116
Congress could also opt for a more targeted approach. For example, Congress could eliminate the
time limits on the statutory exemption enacted in 2018. That approach would make all forest
plans exempt from reinitiation of consultation for new listings and new critical habitat
designations, regardless of when the listing or designation occurred or when the forest plan was

115 The FS reports progress on selected performance metrics across the entire NFS in its annual budget justifications.
For example, see the “Summary of Performance” section starting on p. 166 of the FY2023 Budget Justification, at
https://www.fs.usda.gov/sites/default/files/2022-03/FS-FY23-Congressional-Budget-Justification.pdf.
116 S. 2561, 117th Cong. (2021).
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Legal and Practice Implications of Ninth Circuit's Cottonwood Decision

last revised. Congress could also include within the exemption additional triggers for reinitiation.
For example, the Forest Information Reform Act, H.R. 1174 in the 117th Congress, would
preclude the FS and BLM from being required to reinitiate consultation on forest plans and land
use plans on the basis of new listings, new critical habitat designations, or new information that
reveals effects of an action that may affect listed species or critical habitat in a way not
considered in the initial consultation.117 Alternatively, Section 105 of the Emergency Wildfire and
Public Safety Act of 2020, S. 4431 in the 116th Congress, would have allowed such plans to be
subject to reinitiation for consultation based on new information, but it would have limited that
trigger to information that was “influential scientific information,” peer reviewed, and publicly
published.118 In so doing, Congress could clarify whether forest plans and land use plans are
subject to reinitiation of consultation for the two remaining triggers (i.e., exceeding the incidental
take statement or modifying the action in a way that affects the analysis) or continue to leave that
determination to the courts.
As a practical matter, of the three triggers that Congress has not addressed, requiring (or
exempting) reinitiation of consultation for forest plans and land use plans may not have a
significant impact on how often the agencies must reinitiate consultation for two of them: (1)
exceeding the incidental take statement and (2) modifying the action in a way that affects the
analysis. Under the Services’ regulations, forest plans and land use plans generally are not subject
to an incidental take statement because they do not authorize any specific actions directly.119
Similarly, if BLM or the FS were to modify a plan in a way that would affect the analysis of the
plan’s effects on listed species or critical habitat, the agency likely would have to follow
amendment procedures established by statute, which would separately trigger Section 7
consultation requirements for the amendment or revision.120 Exempting such plans from the
reinitiation trigger for modifying the action may not have a significant practical effect because
consultation would be required for the amendment.

Author Information

Erin H. Ward
Katie Hoover
Legislative Attorney
Specialist in Natural Resources Policy

Pervaze A. Sheikh

Specialist in Natural Resources Policy

117 H.R. 1174, 117th Cong. (2021).
118 S. 4431, 116th Cong. § 105 (2020). See also H.R. 7978, 116th Cong. § 105 (2020).
119 50 C.F.R. § 402.14(i)(6); see also FWS and NMFS, Final Rule, Interagency Cooperation—Endangered Species Act
of 1973, as Amended; Incidental Take Statements, 80 Fed. Reg. 26,832 (May 11, 2015).
120 16 U.S.C. § 1604(a), (f); 43 U.S.C. § 1712(a), (c).
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