The National Association of State Foresters has submitted official comments to the U.S. Fish and Wildfire Service (FWS) and the National Marine Fisheries Service (NMFS) regarding its proposed revisions to consultation regulations under the Endangered Species Act (ESA). The proposed rule addresses the precedent set by Cottonwood Environmental Law Center v. U.S. Forest Service, a ruling which presents significant challenges for managing National Forest System lands.
The Cottonwood decision set a harmful and disruptive precedent requiring the Forest Service to reinitiate ESA consultation on completed National Forest plans when a new species is listed, when critical habitat is designated, and when “new information” is brought forward. The fundamental issue in the Cottonwood decision is whether a finalized (or approved) forest plan – that has already undergone consultation under the ESA – is a completed agency action or whether “discretionary Federal involvement or control over the action has been retained or is authorized by law.” It was the Obama administration’s position that a finalized forest plan is not an ongoing action and does not allow for discretionary involvement. In practice, this means that the Forest Service should not be required to reinitiate ESA consultation on completed plans when a new species is listed, critical habitat is designated, or new information becomes available.
The Cottonwood decision has created a new set of administrative and legal hurdles that have made it more difficult for the Forest Service to manage forests and reduce the threat of wildfire on federal lands. It also affects program delivery and consumes valuable agency resources that could be used for active forest management and protecting communities from wildfire. Furthermore, the decision has no direct conservation benefit for threatened and endangered species. The Forest Service already consults on listed species and designated critical habitat when it approves, amends, and revises forest plans and when it carries out individual projects.
We urge the FWS and NMFS to finalize the proposed rule, as it largely mirrors the legal opinions expressed by the Obama administration’s Justice Department. With the ever-growing threat of wildfire and over 80 million acres of National Forest System land at risk of insect and disease infestation, we need to increase the pace and scale of active forest management. Both economic recovery and forest health will be enhanced by correcting Cottonwood.
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