ELR Citation: ELR 21367
No(s). s. 93-36162, 94-35042 (9th Cir. Jul 7, 1994)

The court affirms a district court judgment that enjoined the U.S. Forest Service (Forest Service) from announcing, awarding, or conducting additional timber sales, range activities/grazing permits, or road building projects in the Wallowa-Whitman and Umatilla National Forests until the Forest Service commences consultation with the National Marine Fisheries Service (NMFS) under §7(a)(2) of the Endangered Species Act (ESA). The court reverses the district court's judgment that denied an injunction against all ongoing and announced timber, range, and road projects that may affect the Snake River chinook. The court first holds that ESA §7(a)(2) requires the Forest Service to consult with NMFS on the effects on Snake River chinook of the Forest Service's land and resource management plans for the two forests. That the Forest Service adopted the plans before the NMFS listed the Snake River chinook as threatened is irrelevant. The plans constitute ongoing agency action because every individual project planned for the two forests is implemented according to them. The court need not defer to the Forest Service's interpretation that the plans do not constitute ongoing agency action, because there is little doubt that Congress intended to enact a broad definition of agency action in the ESA. The court also holds that the plans may affect a listed species because they set forth criteria for harvesting resources within the salmon's habitat. The court notes that amendments to the plans to address the newly listed species belie the Forest Service's claim that the plans do not constitute continuing agency action.

The court reverses the district court's judgment that denied an injunction barring ongoing and announced timber, range, and road projects that may affect the Snake River chinook, because the district court erred in applying ESA §7(d). Section 7(d) prohibits federal agencies, after initiation of §7(a)(2) consultation, from making irreversible and irretrievable commitments of resources with respect to agency action that has the effect of foreclosing reasonable and prudent alternatives. In this case, the Forest Service has not initiated consultation on the plans. The court declines to address the district court's rulings on whether the various commitments of resources were irreversible and irretrievable.

Counsel for Plaintiffs
Victor M. Sher
Sierra Club Legal Defense Fund
705 Second Ave., Ste. 203, Seattle WA 98104
(206) 343-7340

Counsel for Defendants
J. Carol Williams
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Wright and Tang, JJ: