In Plurality Opinion, Ninth Circuit Holds Traditional Four-Factor Test for Granting Injunctive Relief Applies in ESA Litigation

July 6th, 2015

By: Chris Butcher



The dispute in Cottonwood Environmental Law Center v. U.S. Forest Service, 2015 U.S. App. LEXIS 10176 (Cottonwood), involved the ongoing battle over Federal protection of the Canada Lynx. In 2000, the Canada Lynx was listed as a threatened species under the Endangered Species Act (ESA). Six years later, the Fish and Wildlife Service (FWS) designated 1,841 square miles as critical habitat for the Canada Lynx, but did not designate any National Forest lands. Soon after, the Forest Service adopted the Northern Rocky Mountains Lynx Management Direction (Lynx Amendments), setting permitting standards on activities that affect the Canada Lynx, and completed Section 7 consultation with FWS.

In 2009, FWS revised its critical habitat designation to 39,000 square miles. 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. In 2012, The Cottonwood Environmental Law Center (Cottonwood) sued claiming the Forest Service violated ESA by failing to reinitiate consultation. The trial court granted summary judgement in favor of Cottonwood, but refused to enjoin any related projects. Both Cottonwood and the Forest Service appealed.

On appeal, the Ninth Circuit considered whether Cottonwood had standing to bring the case, whether the issue was ripe for the courts, whether the Forest Service violated ESA section 7 by failing to reinitiate consultation on the Lynx Amendments with FWS, and whether an injunction was an appropriate remedy.

The Ninth Circuit first held that Cottonwood had standing to bring the programmatic challenge. The Forest Service argued that Cottonwood did not have standing because they challenged the Forest Service’s failure to reinitiate consultation, rather than any particular action that directly caused injury. The court disagreed, stating Cottonwood had shown particularized harm because their declarations established that their members used the National Forests for viewing, enjoying, and studying the Canada Lynx. The declarations also established a necessary “geographic nexus between the individual[s] asserting the claim and the location suffering an environmental impact.” (See W. Watershed Project v. Kraayenbrink (9th Cir. 2011) 632 F.3d. 472, 485.)

The court also noted that this was not the first time the Ninth Circuit found a plaintiff alleging a programmatic challenge had standing. A procedural injury exists after a Forest Plan is adopted, as long the plan is traceable to an action that affects the plaintiff’s interests. Uncertainty about whether reinitiating the consultation will benefit the plaintiff or not has no bearing on the plaintiff’s standing.

The Ninth Circuit next held the case was ripe for review. The Forest Service argued the issue was not ripe until a specific project was challenged. The court disagreed because Cottonwood had not sought any sort of substantive result, but had brought suit in order to enforce a procedural violation under Section 7.

Turning to the merits, the Ninth Circuit held the Forest Service violated Section 7 by failing to reinitiate consultation. The Forest Service argued that it did not have to reinitiate consultation because it already promulgated the Lynx Amendments and incorporated them into the Forest Plan before the FWS released the revised critical habitat designation. But, the court pointed out that nothing in ESA or its implementing regulations limits reinitiation of consultation to where there is ongoing agency action. The ESA implementing regulations require reinitiation of formal consultation “where Federal involvement or control over the action has been retained or is authorized by law and: … (B) if new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered;…, or (d) If a new species is listed or critical habitat designated that may be affected by the identified action.” (50 C.F.R. § 404.16.)

The court reasoned that reinitiation of Section 7 consultation “could yield important actionable information.” FWS’s re-evaluation of the data generated a drastically different result that justified vast designation of previously unprotected critical habitat. These new protections triggered new obligations the Forest Service could not evade by relying on an analysis it completed before the protections were in place.

Finally, in a plurality ruling, the Ninth Circuit held that in the context of granting injunctive relief, the court’s nearly three-decade old holding that there is a presumption of irreparable injury where there has been a procedural violation in ESA cases is no longer good law.

The majority agreed with the Forest Service that the presumption of irreparable harm has been overruled by two decisions on the National Environmental Policy Act (NEPA). Like ESA, NEPA traditionally presumed environmental damage, warranting an injunction. But, in Winter v. Natural Resources Defense Council, Inc. (2008) 555 U.S. 7, 22 (Winter), the Supreme Court ruled that this test for injunctions under NEPA was too lenient. Additionally, in Monsanto Co. v. Geerston Farms (2010) 561 U.S. 139, 157 (Monsanto), the Supreme Court disapproved of cases that did not use a traditional four-factor test for injunctions.

Here, the court reasoned that, “[w]hen Supreme Court precedent undercuts the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable, the prior circuit precedent is no longer binding.” (Cottonwood, supra, 2015 U.S. App. LEXIS 10176, *13 [Citation.].)

Judge Pregerson dissented to the court’s decision on the injunction. He reasoned that Winter and Monsanto were decisions under NEPA and not ESA. He argued that existing Supreme Court precedent favored the current standard for inunctions under ESA, and the majority’s ruling undermined the substantive purpose of ESA, conserving threatened species and ecosystems.

Key Point

Thomas v. Peterson, 753 F.2d 754, 764 (9th Cir. 1985), which established an exception to the traditional test for injunctive relief when addressing procedural violations under the ESA and created a presumption of irreparable harm has been effectively overruled by two recent Supreme Court cases, Winter and Monsanto, addressing injunctive relief in the context of NEPA.  The traditional four-factor test for granting injunctive relief applies in both ESA and NEPA litigation.