Coalition for Sustainable Resources Inc. vs. USFS

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? i 259 F.3d 1244, *; 2001 U.S. App. LEXIS 17639, **; 53 ERC (BNA) 1368; 31 ELR 20864 OPIlVION: [* 1246] EBEL, Circuit Judge. The Coalition for Sustainable Resources ("Coalition") challenges the United States Forest Service's failure to implement particular forest- management practices in the Medicine Bow National Forest in Wyoming, including increased timber harvesting. The Coalition alleges that these practices would increase the amount of water in the Platte River in Nebraska and thereby promote the recovery of several endangered and threatened species utilizing that habitat. The district court dismissed the case as not yet ripe for review, and also found that the Coalition had failed to state a claim upon which relief can be granted because the Endangered Species Act does not require federal agencies to adopt particular conservation measures. We hold that this case is not yet ripe, and we therefore lack subject-matter jurisdiction. Here, the Coalition is challenging the Forest Service's inaction, but this inaction is not sufficiently fmal for review. The Forest Service is currently a cooperating agency in developing a conservation strategy for the Platte River species and is also revising its [**3] forest plan for the Medicine Bow. Because the agency has adopted a reasonable timeframe to study this problem, given the complexity and urgency of the issues, we conclude that judicial review is not warranted at this time. We therefore AFFIRM the district court's dismissal for lack of jurisdiction and VACATE its disposition on the merits. BACKGROUND The Endangered Species Act, 16 U.S.C. ,¢ ,¢ 1531- 1544, is a comprehensive scheme for the protection of listed endangered and threatened species and their habitat, regulating the activities of both governmental [*1247] and private entities. The Act's ultimate goal is "conservation," bringing these species to the point where legal protections are no longer necessary. 16 U.S.C. § § 1531(b), 1532(3). The Department of the Interior's Fish and Wildlife Service and the Deparhnent of Commerce's National Marine Fisheries Service share primary responsibility for administration of most parts of the Act. 16 U.S.C. § 1532(15); 50 C.F.R. § 17.2(b). At issue in this case, however, is a provision covering all other federal agencies, including the Department of Agriculture's [**4] Forest Service. These agencies "shall, in consultation with and with the assistance of the Secretaries of the Interior and of Commerce, utilize their authorities in furtherance of the purposes of [the Page 2 Endangered Species Act] by carrying out programs for the conservation of endangered species and threatened species." 16 U.S.C. § 1536(a)(1). The Platte River in Nebraska is home to the whooping crane, least tern, pallid sturgeon, and piping plover, all species listed as endangered or threatened under the Endangered Species Act, and part of the river has been designated "critical habitat" for the whooping crane. The Coalition alleges that more water (some 238,000 acre-feet per year) is needed in the Platte River to meet target flows established for the listed species. The Coalition alleges that the Fish and Wildlife Service has determined that a loss of as little as 0.7 acre-feet of water per year from the South Platte River drainage in Colorado is likely to jeopardize the continued existence of these species and adversely modify the designated critical habitat. n3 n3 The Final Biological Opinion referenced by the Coalition's allegation does refer to a proposed action that could reduce flow by 0.7 acre-feet annually, but that Opinion makes it clear that this particular action is only a"very small proportion of the depletions in the Platte River system" which cumulatively could have the adverse effects alleged by the Coalition. **5 The Department of the Interior and the states of Colorado, Nebraska, and Wyoming have signed a "Cooperative Agreement for Platte River Research and Other Efforts Relating to Endangered Species Habitats Along the Central Platte River, Nebraska.° The purpose of this plan is to study the listed species dependant on the Platte River and implement a recovery plan. Although it is not a signatory, the Forest Service is participating as a "cooperating agency" in the development of an Environmental Impact Statement for the Cooperative Agreement. The recard reflects that a program would be developed by the end of 2000. n4 n4 The district court concluded that the study would be complete by July 2000. Intervenor Biodiversity Associates similarly informed us in its brief that the work "should be fmished later this year [2000]." However, the parties have not given us a status report on those expected timetables.