ELR Citation: ELR 20755
No(s). 88-6041 (5th Cir. Mar 4, 1991)

The court rules that the Endangered Species Act's (ESA's) 60-day notice requirement is not jurisdictional and the United States Forest Service's (USFS') management practices in Texas national forests harmed the red-cockaded woodpecker in violation of the ESA. Pending a trial on the merits of environmental groups' challenge to the USFS' timber management activities, which allegedly jeopardized the red-cockaded woodpecker's continued existence in four East Texas national forests, the district court refused to totally enjoin all timber cutting in affected forests, but granted limited relief. However, when two USFS scientists subsequently revealed research that showed that the red-cockaded woodpecker colonies in the affected forests had declined 40 to 50 percent between 1983 and 1987, plaintiffs filed an amended complaint seeking a permanent injunction alleging that the USFS' timber management practices harmed the red-cockaded woodpecker in violation of ESA §§7 and 9. The district court ordered the USFS to promulgate a plan to maximize the probability of survival for the red-cockaded woodpeckers, and imposed restrictions on the plan requiring particular tree management practices. Subsequently, the USFS presented a plan that deviated from the court's imposed restrictions, which the district court rejected. The government then brought this interlocutory appeal.

The court first holds that although the 60-day citizen suit notice requirement in ESA §11(g)(2)(A)(i) is mandatory, it is not jurisdictional and may not be raised for the first time on appeals as a bar to review. The court notes that while the Eleventh Amendment sovereign immunity defense is expressly couched in jurisdictional terms, the diligent prosecution standard in §11(g)(2)(A) is not the kind of bright-line criteria normally associated with truly jurisdictional requirements. This suggests that the "diligently" formulation is a condition that must be raised in the trial court. The court noted that where Congress has waived sovereign immunity by authorizing suit against the government and provided a notice limitation, strict compliance with that time limit is not a condition to, or a part of, the waiver, and failure to comply with the notice requirement may be excused under equitable tolling principles. However, since the government never questioned compliance with §11(g)(2)(A) below, it may not do so now.

Turning to the merits, the court holds that because the government's trial attorney repeatedly invited the trial court to try the §9 claim under a de novo standard, the government may not now on appeal challenge as error the lower court's use of that standard. The court next holds that the district court did not err in finding that the government violated §9, since the USFS did not follow its own wildlife management handbook. It is not unreasonable to conclude that the USFS' failure to observe its handbook, which was intended to preserve the dwindling red-cockaded woodpecker population, would result in a "taking" of the endangered woodpecker. The court also holds that the district court correctly employed the arbitrary and capricious standard in concluding that the USFS' actions were likely to jeopardize the continued existence of the red-cockaded woodpecker in violation of §7. Once an agency submits a plan that has been agreed to through the §7 consultation process between the USFS and the Fish and Wildlife Service, a court, applying the arbitrary and capricious standard, must approve or disapprove it. However, the district court's injunction effectively fashioned the ultimate plan, dictating the principal features of all significant steps the USFS must take, leaving little room for the congressionally mandated consultation process. Thus, the court concludes that the district court exceeded its authority to enjoin violations of the ESA by dictating the results of the consultation process, and those aspects of its order must be vacated.

[Prior decisions in this litigation are published at 16 ELR 20049, 18 ELR 20595, and 19 ELR 20450.]

Counsel for Appellants
John A. Bryson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Appellees
Douglas N. Honnold
Sierra Club Legal Defense Fund, Inc.
1631 Glenarm Place, Ste. 300, Denver CO 80202
(303) 623-9466

Before KING, GARWOOD and SMITH, Circuit Judges.