Members of Congress are eyeing legislation that would prevent the enforcement of a 2015 ruling on the Endangered Species Act, a change they say is necessary to avoid years of bureaucratic entanglements. 

The effort stems from the case of Cottonwood Environmental Law Center v. U.S. Forest Service, in which the center said the agency needed to continue to examine whether its forest management plans were adequate to protect the Canada lynx, which is listed as threatened under the ESA.

The Court of Appeals for the Ninth Circuit found that the obligation to reinitiate consultation with the U.S. Fish and Wildlife Service “does not terminate when the underlying action is complete,” but rather continues as long as the agency remains involved or retains control.

That means if the FWS updates its protections, such as by designating additional critical habitat, the Forest Service would be required to reinitiate consultation to be sure any affected plans account for the changes.

This ruling, celebrated as critical to protecting the species, was opposed by many members of Congress from the Western U.S. over the effects it would have on land management plans. The requirement, they said, could affect the Forest Service’s ability to undertake projects that reduce the risk of wildfires or limit timber harvesting projects while the agencies conduct additional reviews.

The fiscal 2018 omnibus appropriations law included a rider that partially overrode the decision, exempting the Forest Service from the requirement to consult on management plans when a species is listed or if a critical habitat is designated. That exemption expired last month.

Ahead of the expiration members wrote to the administration, urging its support for a more permanent fix, pointing to the Forest Service’s own suggestion that consulting requirements could take years to complete and cost the agency millions of dollars.

“An immediate resolution to this decision is vital to allow land managers and wildlife biologists to follow the best available science to improve the health of our forests, reduce the risk of severe wildfires, advance wildlife habitat projects, and support good-paying timber jobs,” a group led by Sen. Steve Daines, R-Mont., wrote to the administration.

Legislation

At an April 18 Senate Energy and Natural Resources Committee hearing on the Forest Service’s 2024 budget proposal, Daines asked Chief Randy Moore if he would “agree that a full and permanent Cottonwood solution should be a high priority and a bipartisan priority for this Congress?”

“Yes, sir. I do,” Moore said.

Last Congress Daines introduced a bill that would remove that requirement to reinitiate consultation, which passed out of committee with bipartisan support by a vote of 16-4. But it was never considered by the full Senate.

With their return to the majority Republicans on the House Natural Resources Committee have promised to examine how the Endangered Species Act impacts industry. On March 23 they held a hearing on a bill from Rep. Matt Rosendale, R-Mont., that would also specify there is not an inherent need to reinitiate consultations.

At the hearing Rosendale pitched his bill, which had the support of Chairman Bruce Westerman, R-Ark., as key to addressing the increasingly severe wildfires in his state and elsewhere.

“In Montana alone, 125,000 acres burned in 2022. We need to be doing all we can to combat wildfires out West,” said Rosendale. “My legislation is a key part of stopping the wildfire crisis. We currently have 28 timber sales and 30,000 acres of forest land that is under litigation in Montana. That is land which is ready to be harvested.”

However, John Meyer, executive director of the Cottonwood Environmental Law Center that brought the original case, said that the legislative proposals would simply “encourage more political interference in the management of our public lands and wildlife.”

Meyer said that such an attempt to override the precedent by Congress would insulate the government from accountability, endangering the survival of protected species.

“By allowing the Forest Service to continue logging under outdated forest plans that don’t address new science, it further exacerbates the impacts of climate change,” said Meyer.