ELR Citation: ELR 20147
No(s). 94-1031 (D.D.C. Jun 30, 2009)

A district court ruled that BLM, which entered into a settlement agreement concerning its management of federal forests in the northwestern United States, did not violate that agreement by promulgating a revised resource management plan without initiating consultation with FWS or NOAA about the plan's impact on endangered or threatened species and their critical habitat. In revising the plan, BLM determined that the logging plan would have "no effect" on endangered and threatened species, thereby obviating the need for consultation under the ESA. A timber industry group party to the settlement agreement filed a motion to enforce the agreement, arguing that BLM breached the agreement's implied covenant of good faith by promulgating the revised plan without initiating consultation. But because there is no evidence of subjective bad faith, because BLM's "no effect" determination is not facially invalid, and because any consulting duty may have been satisfied, the group's theory of breach is too tenuous to support an enforcement order, especially when neither a direct challenge to the plan's validity nor the administrative record is before the court.