ELR Citation: ELR 20109
No(s). 04-16179 (9th Cir. Jun 13, 2006)

The court holds that the U.S. Forest Service violated the Endangered Species Act (ESA) when it failed to reinitiate informal consultation with the U.S. Fish and Wildlife Service (FWS) on the environmental impact of cattle grazing on the Water Canyon Allotment of the Apache-Sitgreaves National Forests. In August 1998, the Forest Service and the FWS entered into an agreement establishing guidance criteria that governed livestock grazing pursuant to the Water Canyon Allotment's land management plan. The agreement provided that for the life of each 10-year grazing permit, the Forest Service was allowed to presume annual concurrence by the FWS in its "not likely to adversely affect" finding only if it confirmed each year that the guidance criteria were being satisfied. Here, however, the Forest Service failed to conduct adequate annual monitoring of the amount of forage being consumed by grazing animals necessary to protect the ESA-listed species in the area. As a result, its "not likely to adversely affect" findings are invalid. Reinitiation of consultation is therefore required to obtain the FWS' annual concurrence in the findings because such concurrence could no longer be presumed.