Forest Guardians v. Johanns

The United States Forest Service (the service) completed informal consultation with the United States Fish and Wildlife Service (FWS) to determine whether cattle grazing on federal land was likely to adversely affect any listed species or critical habitat. The service and the FWS agreed to streamlined guidance criteria that established standards necessary for the continued survival of the listed species in the area, including monitoring requirements, maximum utilization (i.e., the amount of plant material that could be removed), and the number of cattle permitted to graze. If the service complied with the criteria, it could presume that the FWS would concur with the finding that the activities were unlikely to adversely affect the species or habitat as required by the Endangered Species Act (ESA), and the applicable grazing permits would be approved. After receiving the permits, the service failed to conduct monitoring activities in compliance with the criteria, and when it did conduct monitoring, utilization levels exceeded the maxima established by the criteria. The Forest Guardians (plaintiff) sued in federal district court, alleging that the service violated the ESA by not reinitiating informal consultation when it failed to comply with the criteria. The service argued that inadequate monitoring did not trigger new consultation under the ESA and the number of cattle grazed on the land was less than allowed under the permits, so it could not have adversely affected the species. The Forest Guardians sought a declaratory judgment and an injunction to require the service to reinitiate consultation with the FWS. The court denied the Forest Guardians’ request, and the Forest Guardians appealed.