Today, House Committee on Natural Resources Chairman Bruce Westerman (R-Ark.) led a group of Republican committee members in sending a letter to U.S. Department of the Interior (DOI) Secretary Deb Haaland and U.S. Forest Service (USFS) Chief Randy Moore, requesting their agencies finalize a proposed rule that would clarify ongoing uncertainty following the Cottonwood Environmental Law Center v. U.S. Forest Service (Cottonwood) decision. In part, the members wrote:

"Consultation between the USFS or BLM and the U.S. Fish and Wildlife Service to protect endangered species and their habitat is already an integral part of the permitting process for specific land and forest management projects nationwide. Cottonwood unnecessarily lengthens the consultation process and makes active forest management projects virtually impossible to develop and implement by creating limitless opportunities to reinitiate consultation. This diverts finite agency resources from active management in our nation’s forests and public lands to endless planning, regulatory compliance, and responses to litigation.

"Failing to act on this rulemaking would put USFS and BLM into a state of paralysis and inaction. This was confirmed in a congressional hearing in October 2021, when USFS Deputy Chief, National Forest System, Chris French testified that unless action is taken, USFS will have to go through re-consultation, regardless of the merit, on over one hundred forest plans that 'will take years and cost millions of dollars'...

"If your agencies fail to take immediate action to resolve Cottonwood’s precedent, nearly every existing federal forest management plan and RMP could be open to litigation and the consultation process required for critical forest management activities would be overly burdensome and painstakingly long. The long-term health of our National Forest System and public lands are in jeopardy if a solution is not reached. We strongly support finalizing the proposed rule without further delay."

Background

In 2015, the Ninth Circuit Court of Appeals ruled in Cottonwood that the USFS must reinitiate Endangered Species Act (ESA) consultation on completed forest plans when a new species is listed, when critical habitat is designated or when new information is brought forward. This decision has led to significant challenges for the USFS's management of National Forest System lands.

Since 2015, the Cottonwood decision has delayed 130 projects. The Consolidated Appropriations Act of 2018 implemented a partial fix to the Cottonwood ruling that exempted forest plans and Bureau of Land Management land use plans from the re-initiation of consultation, but only for species listings and critical habitat designations and only for five years (through March 23, 2023). Because of the way the temporary fix was written, there are concerns that in March of this year, the effects of this decision could become nationwide. The USFS estimates this could lead to additional onerous consultations on 187 projects across 36 national forests, which will divert resources and delay important forest management activities.  

The U.S. Fish and Wildlife Service, under the Trump administration, promulgated a rule to fix this issue, but the Biden administration has delayed it.