Congress Must Act To Protect Endangered Species From Catastrophic Wildfires

It’s Time to Repeal Cottonwood

Congress Must Act To Protect Endangered Species From Catastrophic Wildfires

With wildfire risk increasing across the American West, Congress has a critical opportunity to fix a disastrous court decision that has significantly hindered efforts to reduce fire risk and protect endangered species on public lands. In 2015, the Cottonwood Environmental Law Center (CELC) sued the Forest Service, alleging the Service’s forest management protocols weren’t doing enough to protect endangered species. The 9th Circuit ruled in the CELC’s favor, requiring the Forest Service to pause forest management projects to reanalyze management plans every time new information arises about an endangered species.

The result has been disastrous for endangered species. Cottonwood has forced the US Forest Service to delay dozens of wildfire prevention projects. Anytime a new species is listed as endangered, a critical habitat is designated, or new information is brought forward about an endangered species, the Forest Service must reassess its forest management plans. In 2023, the Deputy Chief of the Forest Service told Congress that the Cottonwood decision would require reevaluation of 87 forest plans, which could take up to a decade.

Because wildfire mitigation projects cannot proceed while forest management plans are being reassessed, the Cottonwood decision has greatly increased risks to endangered species and their habitat on public land across the western United States. Wildfires in the West are quickly growing larger and more severe. When fire patterns change abruptly, wildlife often can’t adapt fast enough to survive. A 2017 wildfire in southern Arizona killed 217 of the 252 Mount Graham squirrels left in existence. Recent wildfires across California have pushed dozens of species, including the mountain yellow-legged frog, the Amargosa Vole, and the Mexican Spotted Owl to the brink of extinction.

Catastrophic wildfires in California in 2020 and 2021 impacted hundreds of species, including over 50 that the California Department of Fish and Wildlife considers species of conservation concern. The growing carnage from wildfires now represents one of the greatest threats to many endangered species. In 2019 and 2021 respectively, the US Fish and Wildlife Service listed the southern Sierra Nevada fisher and the Sierra Nevada fox as endangered, identifying catastrophic wildfires as leading threats to the ongoing survival of both species.

Proponents of Cottonwood argue that the ruling adds a layer of protection for endangered species. But there is little evidence that continual reassessment of high level forest management plans results in improved outcomes for endangered species. The Forest Service must still extensively review on-the-ground impacts to endangered species for all activities it undertakes at the project level. Requiring additional layers of review in forest management plans provides no added benefit. Both the US Forest Service and the National Association of State Foresters have concluded that Cottonwood has not improved endangered species analysis nor resulted in any direct conservation benefit for threatened and endangered species.

Still, conservationist groups nonsensically use Cottonwood to stop wildfire prevention projects in the name of endangered species protection. In 2017, two organizations sued the Forest Service to stop a wildfire mitigation project in a high-risk forest in Montana. The plaintiffs argued the project violated Cottonwood, threatening the Canadian Lynx. Despite warnings from the Forest Service that the area was susceptible to severe wildfires without prompt intervention, the judge issued an injunction. Later that year, a wildfire erupted, scorching the Canadian Lynx habitat conservationists were fighting to protect. After the fire, the Forest Supervisor for the area said the stalled project would have aided in fire control.

Opposition to the repeal of the Cottonwood decision in the name of endangered species protection loses the forest for the Endangered Species Act’s procedural trees. Cottonwood has stymied wildfire mitigation projects that would make future fires less dangerous. Failing to repeal Cottonwood will almost certainly greatly accelerate endangered species losses on public forest lands across the West. Both Senator Steve Daines and Representative Matt Rosendale have introduced legislation to rectify that. To protect endangered species, public health, and public safety, it’s time for Congress to fix the Cottonwood decision.