Forest Guardians v. Johanns

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FOREST GUARDIANS, 
Plaintiff-Appellant,
No. 04-16179
v.
MIKE JOHANNS, Secretary of  D.C. No.
CV-01-00138-DCB
Agriculture; UNITED STATES FOREST
OPINION
SERVICE,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding

Argued and Submitted
February 15, 2006—San Francisco, California

Filed June 13, 2006

Before: Stephen Reinhardt, Richard A. Paez, and
Richard C. Tallman, Circuit Judges.

Opinion by Judge Reinhardt

6547
6550 FOREST GUARDIANS v. JOHANNS

COUNSEL

Robert B. Wiygul, Waltzer & Associates, Biloxi, Mississippi,
for the plaintiff-appellant.

Thomas L. Sansonetti, Assistant Attorney General, Lisa Rus-
sell, M. Alice Thurston and David C. Shilton, United States
Department of Justice, Washington, D.C.; and Mary Ann
Joca, United States Department of Agriculture, Albuquerque,
New Mexico, for the defendants-appellees.
 FOREST GUARDIANS v. JOHANNS 6551
OPINION

REINHARDT, Circuit Judge:

Forest Guardians appeals the district court’s determination
that the United States Forest Service did not violate the
Endangered Species Act when it failed to re-initiate consulta-
tion on the environmental impact of cattle grazing on a plot
of national forest land in Arizona. Forest Guardians urges that
the Forest Service was required to re-consult because it failed
to comply with the agreed-upon criteria governing the moni-
toring of the grazing’s impact on endangered and threatened
species living in the Water Canyon Allotment of the Apache-
Sitgreaves National Forests. We agree that the Forest Ser-
vice’s failure to re-initiate consultation on Water Canyon vio-
lated the Endangered Species Act, and reverse the judgment
of the district court.

I

Endangered Species Act

The Endangered Species Act (ESA) contains substantive
and procedural provisions designed to protect species listed as
threatened or endangered under the Act. The substantive pro-
vision relevant to this appeal is § 7, which prohibits federal
agencies such as the Forest Service from taking discretionary
actions that would “jeopardize the continued existence of any
endangered species or threatened species or result in the
destruction or adverse modification of habitat of such species
. . . .” 16 U.S.C. § 1536(a)(2).

An agency’s decision whether to take a discretionary action
that may jeopardize endangered or threatened species is
strictly governed by ESA-mandated inter-agency consultation
procedures. Id. § 1536(c); Thomas v. Peterson, 753 F.2d 754,
764 (9th Cir. 1985) (“[T]he strict substantive provisions of the
ESA justify more stringent enforcement of its procedural
6552 FOREST GUARDIANS v. JOHANNS
requirements, because the procedural requirements are
designed to ensure compliance with the substantive provi-
sions.”). First, the agency contemplating the action must
request information from the appropriate federal wildlife ser-
vice regarding “whether any species which is listed or pro-
posed to be listed may be present in the area of such proposed
action.” 16 U.S.C. § 1536(c)(1). In this case, the appropriate
wildlife service is the United States Fish and Wildlife Service
(FWS).1 If the wildlife service determines that listed species
may be present in the affected area, the agency preparing to
act must produce a “biological assessment” in accordance
with the National Environmental Policy Act “for the purpose
of identifying any endangered species or threatened species
which is likely to be affected by such action.” Id. If the bio-
logical assessment concludes that listed species are in fact
likely to be adversely affected, the agency ordinarily must
enter “formal consultation” with the wildlife service. Id.
§ 1536(a)(2); Thomas, 753 F.2d at 763. Formal consultation
requires the wildlife service to produce a “biological opinion”
that evaluates the nature and extent of the proposed action’s
effect on the listed species and that, if necessary, posits rea-
sonable and prudent alternatives to the proposed action. 16
U.S.C. § 1536(b)(3)(A); Pac. Rivers Council v. Thomas, 30
F.3d 1050, 1054 n.8 (9th Cir. 1994).

Following the issuance of a biological assessment which
determines that listed species are likely to be adversely
affected, the agency may, however, attempt to avoid the
lengthy and costly process of formal consultation with the ser-
vice by voluntarily initiating a less rigorous regulatory proce-
dure called “informal consultation.” 50 C.F.R. § 402.13.

Informal consultation is an optional process that
includes all discussions, correspondence, etc.,
1
FWS has jurisdiction over freshwater and terrestrial species while the
National Marine Fisheries Service is responsible for anadromous and
marine species. 50 C.F.R. § 402.01(b).
 FOREST GUARDIANS v. JOHANNS 6553
between the [Fish and Wildlife] Service and the Fed-
eral agency . . . designed to assist the Federal agency
in determining whether formal consultation or a con-
ference is required. If during informal consultation it
is determined by the Federal agency, with the written
concurrence of the [Fish and Wildlife] Service, that
the action is not likely to adversely affect listed spe-
cies or critical habitat, the consultation process is ter-
minated, and no further action is necessary.

Id. § 402.13(a). In other words, regardless of whether a bio-
logical assessment concludes that a proposed action would
likely adversely affect listed species, if informal consultation
is initiated and results in a finding that the proposed action
would not in fact have such an effect, the agency is not
required to engage in formal consultation. Id. § 402.14.2

There may be an additional step in the process, however, in
some cases. Informal consultation must be re-initiated when
(1) “new information reveals effects of the action that may
affect listed species or critical habitat in a manner or to an
extent not previously considered,” id. § 402.16(b), or (2) “the
identified action is subsequently modified in a manner that
causes an effect to the listed species or critical habitat that
was not considered in the biological opinion,” id. § 402.16(c).

The issue in this case is whether re-initiation of informal
consultation is required with respect to Water Canyon as a
result of the Forest Service’s failure to comply with certain of
the guidance criteria established during the initial informal
consultation process regarding that allotment. We must also
examine whether the case has become moot while on appeal.
2
Under 50 C.F.R. § 402.14(b)(1), “[a] federal agency need not initiate
formal consultation if, as the result of the preparation of a biological
assessment under § 402.12 or as a result of informal consultation with the
[Fish and Wildlife] Service under § 402.13, the Federal agency determines
. . . that the proposed action is not likely to adversely affect any listed spe-
cies or critical habitat.”
6554 FOREST GUARDIANS v. JOHANNS
Factual and Procedural Background

The Forest Service regulates livestock grazing in national
forests and on other federal land under its jurisdiction. All
livestock use of national forest land must be authorized by
Forest Service-issued grazing permits, which are typically
granted for ten-year terms. 36 C.F.R. § 222.3. Permits are
issued for designated land allotments and must be accompa-
nied by land management plans. Id. § 222.2. Each grazing
permit and corresponding land management plan is subject to
site-specific environmental analysis in accordance with fed-
eral law. Id.; see also Idaho Conservation League v. Mumma,
956 F.2d 1508, 1511 (9th Cir. 1992).

In 1997, Forest Guardians and several co-plaintiffs filed a
lawsuit challenging more than one thousand Forest Service-
issued grazing permits for national forest land in Arizona and
New Mexico. The complaint alleged that the Forest Service
violated the ESA by failing to consult with FWS prior to issu-
ing the permits. In response to the lawsuit, the Forest Service
initiated informal consultation with FWS on each challenged
allotment. However, because there were so many allotments
that required review, the Forest Service and FWS streamlined
the informal consultation process by agreeing to create gen-
eral protocols called “guidance criteria.” The guidance criteria
consisted of certain factual conditions which, if satisfied,
would cause FWS to agree that a “not likely to adversely
affect” finding would be appropriate. Thus, if the Forest Ser-
vice would ensure that the guidance criteria conditions were
met with respect to a given allotment, the agency was permit-
ted to presume that FWS concurred in the “not likely to
adversely affect” finding for that allotment.

Forest Guardians’ 1997 action targeted, among others, the
grazing permit for the Water Canyon Allotment, which covers
approximately 52,000 acres of the Apache-Sitgreaves
National Forests in Arizona. Water Canyon is home to numer-
ous ESA-listed species, including the Mexican spotted owl
 FOREST GUARDIANS v. JOHANNS 6555
and the Little Colorado spinedace, a type of minnow. The
allotment’s land management plan permitted eighty-six cow/
calf pairs to graze for four months annually. The management
plan established maximum utilization levels3 for each grazed
pasture in the allotment; it assigned to ten pastures a 25 per-
cent level and to the remaining four pastures a 35 percent
level. The plan also required that the Forest Service, at a mini-
mum, monitor the utilization levels of each grazed pasture at
the mid-point of the scheduled use period. The plan recom-
mended additional monitoring prior to livestock entry and at
the end of the use period, but mid-point measuring was com-
pulsory because it would allow the Forest Service to make
operational changes if necessary to reflect actual range condi-
tions.

In August 1998, the Forest Service and FWS entered into
an agreement establishing guidance criteria that governed
livestock grazing pursuant to Water Canyon’s land manage-
ment plan. The agreement adopted the management plan’s
environmental requirements. It explained that the monitoring
of the utilization levels was critical to the continued existence
of the affected species and emphasized that the Mexican spot-
ted owl required forage sufficient to provide habitat for its
rodent prey species. It also stated that restricted utilization
levels were important because they allowed for controlled
fires that reduced the risk of “catastrophic wildfire” in the
region. The agreement provided that, for the life of each ten-
year grazing permit, “yearly confirmation throughout the life-
time of the permit must take place to ensure the criteria for
those findings continue to be met.” In other words, the Forest
Service was allowed to presume annual concurrence by FWS
in the “not likely to adversely affect” finding only if it con-
firmed each year that the guidance criteria were being satis-
fied.
3
Utilization refers to the amount of forage consumed by grazing live-
stock. Permissible utilization levels vary according to, among other things,
the condition and character of the range, the type of forage, and the needs
of local plants and animals.
6556 FOREST GUARDIANS v. JOHANNS
In September 1998, as a result of the adoption of the guid-
ance criteria for the Water Canyon Allotment, the Forest Ser-
vice issued a “not likely to adversely affect” biological
assessment with respect to several species including the Mexi-
can spotted owl and the Little Colorado spinedace. On June
22, 1999, the Forest Service issued a notice of decision to per-
mit grazing on Water Canyon. The grazing permits took effect
that year.

In April 2001, Forest Guardians commenced this lawsuit
under the citizen suits provision of the ESA, 16 U.S.C.
§ 1540(g). Its complaint alleged that the Forest Service vio-
lated the ESA by not re-initiating consultation after the
agency failed over several years to meet the guidance criteria
for approximately thirty national forest allotments, including
Water Canyon. Specifically, Forest Guardians alleged that the
Forest Service had failed to conduct adequate annual monitor-
ing of utilization levels on numerous grazed allotments identi-
fied in the complaint and that, as a result, the continuing “not
likely to adversely affect” findings for those allotments were
invalid. It contended that re-initiation of consultation was
required to obtain FWS’s annual concurrence in the findings
because such concurrence could no longer be presumed. The
complaint sought declaratory judgment that the Forest Ser-
vice’s actions violated the ESA and an injunction requiring
the agency to re-initiate consultation on the challenged allot-
ments.

The district court addressed, several times, the Forest Ser-
vice’s alleged failure to monitor utilization levels on the chal-
lenged allotments. In an order dated October 22, 2002, the
court rejected Forest Guardians’ argument that each instance
in which the Forest Service failed to monitor in accordance
with the management plans and guidance criteria per se trig-
gered re-initiation of consultation. In doing so, however, the
district court noted:

Monitoring the effectiveness of the utilization stan-
dards is the specified mechanism by which the
 FOREST GUARDIANS v. JOHANNS 6557
Defendant ensures that grazing on an allotment is
“not likely to adversely affect” endangered and pro-
tected species. This explains why the Biological
Assessments . . . tie the “not likely to adversely
affect” determinations to utilization levels and why
they require ongoing monitoring of grazing utiliza-
tion.

The district court nevertheless found that inadequate monitor-
ing by itself could not trigger re-consultation under 50 C.F.R.
§ 402.16 without a showing that “noncompliance has modi-
fied the agency action to an extent that causes an affect [sic]
not previously considered.”

On March 17, 2004, following cross-motions for summary
judgment, the district court issued a summary judgment order
addressing each allotment challenged by Forest Guardians.
The court found that the Forest Service was required to re-
initiate § 7 consultation on some allotments but that it was not
required to do so for several others, including Water Canyon.
With respect to the Water Canyon Allotment, the district court
found that “monitoring on this large allotment leaves much to
be desired.”

The undisputed evidence showed that, in 1999, only one
pasture on the Water Canyon Allotment was monitored for
utilization level compliance notwithstanding the fact that
three pastures were grazed. Several sites on that one pasture
were measured, and each measurement taken at the mid-point
of the use term for that pasture was less than 25 percent. In
2000, the Forest Service again monitored only one pasture
although several were grazed. That time, one of the four mid-
point measurements was 39.5 percent, which exceeded the
allowable 25 percent level. No operational changes were
made to accommodate the excessive utilization. In 2001, the
Forest Service conducted no mid-point monitoring of one
grazed pasture, although it did do so for two others. In 2002,
two of the three recorded sites on the single monitored pasture
6558 FOREST GUARDIANS v. JOHANNS
exceeded 25 percent — one measured 31 percent and the
other 72 percent, with both measurements taken at the end of
the grazing season.

Despite these findings for Water Canyon, the district court
concluded that re-initiation of consultation on the allotment
was not required. It based its conclusion primarily on evi-
dence that, in 2001 and 2002, only seventy-four cow/calf
pairs grazed Water Canyon instead of the eighty-six that the
biological assessment concluded would support a “not likely
to adversely affect” finding. The district court reasoned as fol-
lows: “Because utilization levels correspond to stocking
levels, even though monitoring has been inadequate, the Court
finds that the required utilization levels for the allotment are
in place.” It found that the “inadequate” monitoring was suffi-
cient to establish that the guidance criteria supporting the “not
likely to adversely affect” finding were met. The district court
entered judgment on April 6, 2004.

Forest Guardians appealed the district court’s judgment
only with respect to the Water Canyon Allotment. On October
20, 2004, just two days before the Forest Service filed its
responsive brief, it re-initiated consultation on Water Canyon.4
As a part of that process, it sent FWS notice that “the original
effects determinations have not changed” and therefore the
continued grazing would not likely adversely affect any listed
species on the allotment, including the Mexican spotted owl
and the Little Colorado spinedace. FWS subsequently con-
curred in writing in the Forest Service’s “not likely to
adversely affect” finding.
4
The Forest Service requested and was granted a one-month extension
of time within which to file its responsive brief. It re-initiated consultation
on Water Canyon just before the end of that period.
 FOREST GUARDIANS v. JOHANNS 6559
II

Mootness

The first issue that we must address is jurisdictional. The
Forest Service contends that this appeal is moot because the
agency re-initiated consultation on Water Canyon and subse-
quently received FWS’s concurrence in its renewed “not
likely to adversely affect” finding. The Forest Service argues
that, as a result of this recent re-consultation, there is no effec-
tive relief that the district court can grant.

[1] Federal courts lack jurisdiction to consider “moot ques-
tions . . . or to declare principles or rules of law which cannot
affect the matter in issue in the case before it.” Church of
Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992)
(quoting Mills v. Green, 159 U.S. 651, 653 (1895)). An action
is moot “if it has lost its character as a present, live controver-
sy.” Am. Rivers v. Nat’l Marine Fisheries Serv., 126 F.3d
1118, 1123 (9th Cir. 1997). The party asserting mootness
bears the burden of establishing that there is no effective relief
that the court can provide. S. Or. Barter Fair v. Jackson
County, 372 F.3d 1128, 1134 (9th Cir. 2004). That burden is
“heavy”; a case is not moot where any effective relief may be
granted. Northwest Envtl. Defense Ctr. v. Gordon, 849 F.2d
1241, 1244 (9th Cir. 1988).

The only court of appeals case cited by the Forest Service
in its effort to meet its burden is Southern Utah Wilderness
Alliance v. Smith, 110 F.3d 724 (10th Cir. 1997). In SUWA,
the plaintiff alleged that the Bureau of Land Management
(BLM) violated § 7 of the ESA by failing to consult with
FWS on a management plan for BLM land that was home to
a listed species of plant life. 110 F.3d at 725. The manage-
ment plan required BLM to close certain access routes used
by off-road vehicles but to leave open several others. Id. at
726. The plaintiff sought declaratory and injunctive relief —
principally, it requested a stay of the management plan pend-
6560 FOREST GUARDIANS v. JOHANNS
ing consultation regarding the impact on the listed plant life
of off-road vehicle use on the still-open access routes. Id.
While the matter was pending in the district court, BLM initi-
ated and completed consultation with FWS on the challenged
plan. The district court subsequently ruled against the plaintiff
on the merits and also found that the action was moot as a
result of the inter-agency consultation. Id. at 727. The Tenth
Circuit affirmed, ruling that “[t]here is no point in ordering an
action that has already taken place.” Id. at 728. However, the
court expressly narrowed its holding:

This is not to say that a violation of section 7(a)(2)
could always be cured by subsequent consultation,
nor is this general approval for consultation after the
fact. Instead, this merely recognizes that the changed
circumstances of this particular case no longer pre-
sent an opportunity for meaningful relief. . . . A
declaratory judgment would serve no purpose in this
case. This case does not involve a continuing viola-
tion or practice, and SUWA has not shown that the
defendants are likely to violate section 7(a)(2) in the
near future. A declaratory judgment would not affect
the matter, and would be in the nature of an advisory
opinion.

Id. at 729-20.

[2] SUWA is distinguishable in two critical ways from the
case before us. First, our case does involve a continuing prac-
tice. The grazing permit for Water Canyon has a ten-year term
and requires that the Forest Service obtain from FWS annual
concurrence that the guidance criteria governing the “not
likely to adversely affect” finding have been met. Second, the
Forest Service’s practice of not complying with the monitor-
ing requirements is likely to persist despite the recent re-
consultation. Notably, the Forest Service has argued through-
out this litigation that it is not required to meet the monitoring
requirements incorporated in the guidance criteria. The Forest
 FOREST GUARDIANS v. JOHANNS 6561
Service asserts that those requirements are “unreasonable.”
Declaratory judgment in favor of Forest Guardians would thus
ensure that the Forest Service does not continue to fail to meet
its monitoring responsibilities in the future and that it fulfills
its duty under the ESA to consult with FWS when necessary.

[3] We have repeatedly held that where, like here, both
injunctive and declaratory relief are sought but the request for
an injunction is rendered moot during litigation, if a declara-
tory judgment would nevertheless provide effective relief the
action is not moot. See, e.g., Biodiversity Legal Found. v.
Badgley, 309 F.3d 1166, 1174-75 (9th Cir. 2002); Northwest
Envtl. Defense Ctr., 849 F.2d at 1245. In Northwest Environ-
mental Defense Center, for instance, a federal agency charged
with ensuring the viability of salmon fisheries in the Pacific
Northwest set a 1986 salmon escapement goal that did not
meet the requirements of its own fishery management plan.
849 F.2d at 1243. The plaintiff filed a lawsuit requesting an
injunction requiring the agency to meet the management
plan’s escapement goal and a declaratory judgment that the
agency violated various environmental laws. Id. at 1244.
After the 1986 salmon season ended, the district court dis-
missed the action as moot. We reversed, ruling that, although
the request for an injunction was rendered moot, a declaratory
judgment could help to remedy the effects of the agency’s
statutory violations and to ensure that similar violations would
not occur in the future: “In deciding such a case the court is
not merely propounding on hypothetical questions of law, but
is resolving a dispute which has present and future conse-
quences.” Id. at 1245.

[4] Here, although it is true that the only agency action
sought by Forest Guardians in this appeal — re-initiation of
informal consultation on Water Canyon — has already
occurred, that is not the only form of effective relief that For-
est Guardians seeks or that the district court may grant. As
discussed above, a declaratory judgment that the Forest Ser-
vice’s actions relating to Water Canyon violated the ESA
6562 FOREST GUARDIANS v. JOHANNS
would provide effective relief by governing the Forest Ser-
vice’s actions for the remainder of the allotment’s permit term
and by prohibiting it from continuing to violate the law.5 It
would, accordingly, “resolve a dispute with present and future
consequences.” Id. Because such relief remains available to
Forest Guardians notwithstanding the Forest Service’s re-
initiation of consultation on Water Canyon, the agency has
failed to carry its burden to establish mootness. See id. at
1244.

Failure to Re-Initiate Consultation

The gravamen of this appeal is Forest Guardian’s conten-
tion that the Forest Service violated § 7 of the ESA first in
failing to monitor adequately utilization levels in Water Can-
yon and then, as a result of that failure, in failing to re-initiate
consultation with FWS. Forest Guardians argues that utiliza-
tion monitoring was required to ensure that the guidance
criteria critical to FWS’s annual concurrence in the “not likely
to adversely affect” finding were being met.

[5] The parties do not dispute that the Forest Service failed
to monitor Water Canyon in accordance with the allotment’s
guidance criteria. The agency acknowledges that it did not
measure the mid-point utilization levels for each grazed pas-
ture on Water Canyon from 1999 through 2002 and that some
of the measurements actually taken exceeded allowable utili-
zation levels. The issue is, as the district court correctly
found, whether that failure to monitor triggered a duty to re-
initiate inter-agency consultation under 50 C.F.R. § 402.16.
Pursuant to § 402.16, consultation is required where “the
identified action is subsequently modified in a manner that
causes an effect to the listed species or critical habitat that
5
We note also that such a judgment could guide the Forest Service’s
conduct relating to its authorization and monitoring of cattle grazing on
national forest land throughout the Circuit, although this factor does not
affect our legal analysis of the mootness issue in this case.
 FOREST GUARDIANS v. JOHANNS 6563
was not considered in the biological opinion.” 50 C.F.R.
§ 402.16(c). It is the action agency’s burden to show the
absence of likely adverse effects on listed species. 16 U.S.C.
§ 1536(a)(2).

[6] Both parties rely upon Sierra Club v. Marsh, 816 F.2d
1376 (9th Cir. 1987); in fact, it is the principal case relied
upon by the Forest Service to support its argument that re-
consultation was not triggered in this case. In Sierra Club, the
plaintiff filed a lawsuit against several defendants including
the Army Corps of Engineers (COE) arising from the federal
government’s plan to construct a portion of interstate highway
in San Diego through habitat designated as critical to endan-
gered bird species. Inter-agency consultation resulted in a pro-
posed action that was granted “not likely to adversely affect”
status contingent upon the implementation of a mitigation
plan to acquire adjacent replacement marshland for the
affected species. Sierra Club, 816 F.2d at 1379-80. COE
failed to secure the replacement marshland and, as a result,
FWS requested re-initiation of consultation, which COE
refused. Id. at 1381. We held that COE violated 50 C.F.R.
§ 402.16 by not re-initiating consultation because during ini-
tial consultation the replacement habitat was deemed “neces-
sary to minimize the project’s effects,” and the COE’s failure
to secure that land constituted new information that affected
the listed species “in a manner or to an extent not previously
considered” in the approved plan. Id. at 1388. Similarly, in
this case, the agencies deemed maintenance of proper utiliza-
tion levels necessary to minimize the adverse effects of graz-
ing on Water Canyon, and the Forest Service’s failure to
monitor utilization affected listed species in a manner or to an
extent not considered in the land management plan and guid-
ance criteria. Thus, a plain reading of Sierra Club would
appear to favor Forest Guardians’ argument and to require
summary judgment in its favor.

The Forest Service seizes upon the following language
from Sierra Club to argue that the case is distinguishable from
6564 FOREST GUARDIANS v. JOHANNS
the instant case and that Sierra Club’s guiding principles actu-
ally favor its position:

We do not hold that every modification of or uncer-
tainty in a complex and lengthy project requires the
action agency to stop and reinitiate consultation. The
circumstances here go far beyond the problems and
doubts associated with any large endeavor. The cre-
ation and management of a refuge for the birds is the
most important of many modifications the FWS con-
sidered absolutely necessary to insure that the proj-
ect was not likely to jeopardize their continued
existence.

Id. The Forest Service contends that its failure to monitor uti-
lization levels adequately on Water Canyon raises a “minor
dispute” compared to the consultation-triggering modification
at issue in Sierra Club.

[7] We disagree that the “dispute” here is minor or inconse-
quential. There can be no doubt that the utilization monitoring
provisions governing grazing on Water Canyon were critical
to the biological assessment’s “not likely to adversely affect”
determination and constituted an essential element of the
guidance criteria designed to ensure the determination’s con-
tinued validity. As the district court found, “[m]onitoring the
effectiveness of the utilization standards is the specified
mechanism by which the Defendant ensures that grazing on
an allotment is ‘not likely to adversely affect’ endangered and
protected species.” The Forest Service itself acknowledged
the vital nature of utilization monitoring to FWS’s continued
concurrence in the allotment’s 1998 biological assessment: In
a May 2000 memorandum to forest rangers, a Forest Service
supervisor stated that “if utilization standards were exceeded,
or were inadequately monitored to determine if they were or
were not met, then the initial determination might not be
valid.”
 FOREST GUARDIANS v. JOHANNS 6565
We are also persuaded by our reasoning in Gifford Pinchot
Task Force v. United States Fish and Wildlife Service, 378
F.3d 1059 (9th Cir. 2004). In Gifford the plaintiffs challenged
FWS’s authorization of the Northwest Forest Plan (NFP), a
broad-reaching timber harvest plan for national forest land in
Washington, Oregon, and California that affected the ESA-
listed Northern spotted owl. The NFP, like the guidance
criteria in this case, was a general protocol containing guide-
lines that, if followed for a particular tract of forest land,
would automatically result in a no-jeopardy finding. Gifford,
378 F.3d at 1064-65. The plaintiffs disputed FWS’s reliance
upon the NFP in lieu of individualized analyses of each forest
tract, but we upheld the plan in large part because its imple-
mentation was being carefully monitored:

If such effectiveness monitoring were not taking
place, or if the on-going monitoring reveals that the
NFP is not meeting expectations, we would not
allow the FWS to rely simply upon the NFP’s pre-
dictions. Without such affirmative evidence, how-
ever, we refrain from punishing the FWS for relying
on the unique and extensive Northwest Forest Plan.

Id. at 1068.

[8] Here, there was affirmative evidence not only of defi-
cient monitoring on Water Canyon but also of utilization
levels that exceeded the permissible standards under the guid-
ance criteria. For instance, in 2000 one of the mid-point mea-
surements of a grazed pasture on Water Canyon exceeded 25
percent and, in 2002, two of the three recorded utilization
levels exceeded allowable limits for the same pasture. One of
the sites monitored in 2002 measured 72 percent utilization,
nearly three times the maximum allowable level.

In addition to its reliance on Sierra Club, the Forest Service
makes two principal arguments why deficient monitoring and
excessive recorded utilization levels do not trigger re-
6566 FOREST GUARDIANS v. JOHANNS
consultation under 50 C.F.R. § 402.16. First, it contends that
“Forest Guardians has set an unreasonable standard for moni-
toring which would treat the monitoring provisions of the
1998 Criteria as if they were rigid regulatory requirements.”
That argument is unpersuasive for at least two reasons. First,
from 1999 through 2002, the Forest Service annually moni-
tored only one of the three grazed pastures on Water Canyon
during three of the years and two of the three grazed pastures
in the fourth year. In two of the four years, excessive utiliza-
tion levels were recorded. Second, Forest Guardians did not
establish the monitoring standard — the Forest Service and
FWS agreed to the methodology during inter-agency consul-
tation which resulted in the initial “not likely to adversely
affect” biological assessment for Water Canyon. The two fed-
eral agencies also established the requirement of annual con-
firmation that the guidance criteria have been met. The Forest
Service may not secure a “not likely to adversely affect” find-
ing contingent upon its agreeing to certain critical conditions,
ignore them most of the time, and then assert that the condi-
tions are unreasonable.

The Forest Service also argues that the district court was
correct to assume that, despite deficient monitoring, the utili-
zation levels required by the criteria would automatically
result from reduced cattle stocking of Water Canyon. We dis-
agree with the Forest Service and the district court in this regard.6
In considering only stocking levels and disregarding the
agreed-upon guidance criteria, the district court cited no evi-
dence that stocking levels are so strongly correlated to utiliza-
tion levels that monitoring is unnecessary when an allotment
is not fully stocked. In fact, the most recent evidence before
the district court on Water Canyon indicated that this assump-
6
We nevertheless recognize that the district court did an excellent job
adjudicating this complicated case. The court’s thoroughness and careful
reasoning are evident from the record and from its rulings. Nevertheless,
we must conclude that it erred with respect to the single issue regarding
Water Canyon that is the subject of this appeal.
 FOREST GUARDIANS v. JOHANNS 6567
tion was, at least in this instance, incorrect: In 2002, only
seventy-four cow/calf pairs grazed on the allotment (instead
of the eighty-six contemplated by the biological assessment),
and yet two of the three measured sites recorded excessive
utilization levels.

[9] The record in this case compels the conclusion that the
Forest Service was required under the ESA to re-initiate infor-
mal consultation with FWS on the Water Canyon Allotment.
The material inadequacy of the Forest Service’s utilization
monitoring and the results of the limited measurements that
were taken constituted modifications to the allotment’s land
management plan that affected listed species in a manner and
to an extent not previously considered. See 50 C.F.R.
§ 402.16(c); see also Sierra Club, 816 F.2d at 1388. We do
not hold that each isolated instance in which the Forest Ser-
vice deviated from Water Canyon’s guidance criteria required
the agency to re-initiate consultation. The Forest Service’s
arguments to the contrary notwithstanding, the case before us
is not comprised of infrequent and insignificant deviations.
Rather, the undisputed facts are that (1) the guidance criteria
expressly stated that the utilization levels specified by the
land management plan were necessary to protect the ESA-
listed species in Water Canyon, (2) the Forest Service regu-
larly failed to meet the monitoring requirements on which the
“not likely to adversely affect” determination for those spe-
cies was premised, and (3) the evidence that the Forest Ser-
vice did obtain as a result of its deficient monitoring
suggested that maximum permissible utilization levels were
being exceeded. In light of these facts, the Forest Service’s
failure to re-initiate consultation violated the ESA.

III

The district court’s judgment that the Forest Service did not
violate the Endangered Species Act by failing to re-initiate
consultation on the Water Canyon Allotment is reversed with
6568 FOREST GUARDIANS v. JOHANNS
directions to enter summary judgment in favor of Forest
Guardians.

REVERSED and REMANDED for entry of summary
judgment in favor of Appellant.