## Facts

- The U.S. Forest Service authorized cattle grazing on the Water Canyon Allotment in the Apache–Sitgreaves National Forests in Arizona through a grazing permit issued under federal regulations.
- The allotment included habitat for federally listed threatened or endangered species.
- The Forest Service previously consulted with the U.S. Fish and Wildlife Service under ESA § 7 regarding the grazing program and agreed to monitoring criteria, along with protective terms and conditions intended to avoid jeopardy to listed species.
- Forest Guardians alleged that the Forest Service did not comply with the agreed monitoring and management criteria governing measurement of grazing impacts and required responses when standards were exceeded.
- Forest Guardians sued, arguing that the Forest Service’s noncompliance triggered a duty to reinitiate ESA consultation.
- The district court ruled for the Forest Service, holding no ESA violation; Forest Guardians appealed.

## Issues

1. Whether the Forest Service had a duty under ESA § 7 and 50 C.F.R. § 402.16 to reinitiate consultation after it failed to follow monitoring criteria and protective measures established through prior consultation for the Water Canyon grazing allotment.
2. Whether an agency may continue an ongoing action while relying on an earlier consultation when key terms and conditions that supported the prior no-jeopardy analysis are not implemented.

## Decision

- The Ninth Circuit reversed the district court.
- The court held that the Forest Service violated the ESA by failing to reinitiate consultation for the Water Canyon Allotment.
- The court concluded that the Forest Service could not continue to rely on the prior consultation outcome once it departed from monitoring criteria and related conditions central to that outcome.

## Legal Principles

- ESA § 7 imposes substantive limits on discretionary federal actions that may jeopardize listed species or adversely modify protected habitat, and those limits are enforced through mandatory consultation procedures.
- Action agencies have a continuing duty to reinitiate consultation when regulatory triggers in 50 C.F.R. § 402.16 occur, including circumstances where the action is no longer carried out as analyzed because required terms, conditions, or measures are not implemented.
- Because ESA’s substantive protections are stringent, courts enforce its procedural consultation requirements strictly to ensure compliance with the statute’s substantive mandates.
- Monitoring criteria and other conditions incorporated into a consultation outcome are binding components of ESA compliance; failure to implement them can undermine the assumptions supporting the prior analysis and require renewed consultation.

## Conclusion

The Ninth Circuit held that the Forest Service’s failure to follow agreed monitoring criteria for cattle grazing on the Water Canyon Allotment triggered a regulatory duty to reinitiate ESA consultation, and its failure to do so violated ESA § 7, requiring reversal of the district court’s judgment.


Forest Guardians v. Johanns, 450 F.3d 455 (9th Cir. 2006)