ELR Citation: ELR 21035
No(s). 95-4145 (10th Cir. Mar 25, 1997)

The court holds moot an environmental group's claim that the Bureau of Land Management (BLM) violated §7(a)(2) of the Endangered Species Act by failing to consult with the U.S. Fish and Wildlife Service (FWS) on the possible impact of a wilderness study area management schedule on the threatened Welsh's milkweed. Although BLM may not have received FWS' written concurrence until after it began to implement the schedule, it has now completed informal consultation with FWS and received the agency's concurrence that the schedule is not likely to adversely affect the species. The court holds that the group has obtained the relief it sought because it only requested an injunction requiring consultation. Ordering another round of consultation would confer only the most speculative benefit on the group and would not constitute effective relief. Moreover, the group does not explain how any injury still flows from the alleged violation. If the group still suffers some injury, that injury must flow from the content of the schedule. The court then refuses to strike from the record BLM's letter to FWS requesting concurrence and FWS' written response. Although they were allegedly not part of the record at the time BLM decided to implement the schedule and thus could not be considered for the purposes of determining whether BLM originally violated §7(a)(2), they can be considered in determining whether the relief the group seeks has already been obtained. The court then rejects the group's argument that its claim is not moot because §7(a)(2) requires consultation and written concurrence before, rather than after, agency action. Subsequent consultation is precisely the relief the group seeks. The court also rejects the group's argument that BLM must formally, rather than informally, consult FWS. Although the group may disagree with FWS' concurrence, it failed to prove that either FWS or BLM acted arbitrarily or capriciously in determining that no adverse effect is likely and that no formal consultation is required in this case.

Counsel for Plaintiff
Heidi J. McIntosh
Southern Utah Wilderness Alliance
1471 S. 1100 East St., Salt Lake City UT 84105
(801) 486-3161

Counsel for Defendants
Ellen J. Kohler, David C. Shilton
Environment and Natural Resources Division
U.S. Department of Justice, Washington, DC 20530
(202) 514-2000

Before ANDERSON, McWILLIAMS, and WEIS,^* Circuit Judges.