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Emergency situations, formal consultation or conferencing. Act June 12, 1997, P.L. 105-18, Title II, Ch 3, § 3003, 111 Stat. 176, provides:

"(a) Consultation and conferencing. As provided by regulations issued under the Endangered Species Act (16 U.S.C. 1531 et seq.) for emergency situations, formal consultation or conferencing under section 7(a)(2) or section 7(a)(4) of the Act [16 USCS § 1536(a)(2) or (a)(4)] for any action authorized, funded or carried out by any Federal agency to repair a Federal or non-Federal flood control project, facility or structure may be deferred by the Federal agency authorizing, funding or carrying out the action, if the agency determines that the repair is needed to respond to an emergency causing an imminent threat to human lives and property in 1996 or 1997. Formal consultation or conferencing shall be deferred until the imminent threat to human lives and property has been abated. For purposes of this section, the term repair shall include preventive and remedial measures to restore the project, facility or structure to remove an imminent threat to human lives and property.

"(b) Reasonable and prudent measures. Any reasonable and prudent measures specified under section 7 of the Endangered Species Act (16 U.S.C. 1536) to minimize the impact of an action taken under this section shall be related both in nature and extent to the effect of the action taken to repair the flood control project, facility or structure.".
NOTES:
Related Statutes & Rules:

This section is referred to in 16 USCS §§ 1532, 1533, 1539, 1542, 3645, 6576 ; 23 USCS § 108; 42 USCS § 15924.

Research Guide:

Federal Procedure:

6 Administrative Law (Matthew Bender), ch 50, Standing § 50.04.

24A Fed Proc L Ed, Natural and Marine Resources §§ 56:2074, 2105, 2132, 2158, 2166, 2167, 2169, 2170, 2173-2176, 2337.

Am Jur:

35A Am Jur 2d, Fish, Game, and Wildlife Conservation §§ 65-67.

Am Jur Proof of Facts:

89 Am Jur Proof of Facts 3d, Citizen-Suit Claims Under § 11(g)(1) of the Endangered Species Act, p. 125.

Forms:

10B Fed Procedural Forms L Ed, Highways and Bridges (2006) § 38:17.

13A Am Jur Pl & Pr Forms (2009), Highways, Streets, and Bridges, § 219.

19C Am Jur Pl & Pr Forms (2007), Pollution Control, § 157.

Texts:

Cohen's Handbook of Federal Indian Law (Matthew Bender), ch 17, Natural Resources § 17.04.

Cohen's Handbook of Federal Indian Law (Matthew Bender), ch 19, Water Rights § 19.06.

1 Computer Law (Matthew Bender), ch 2A, Data Protection § 2A.10.

2 Energy Law & Transactions (Matthew Bender), ch 53, Hydroelectric Power § 53.05.

3 Energy Law & Transactions (Matthew Bender), ch 59, Energy Policy Act of 2005 § 59.03.

2 Environmental Law Practice Guide (Matthew Bender), ch 9A, Government Financing § 9A.02.

2 Environmental Law Practice Guide (Matthew Bender), ch 11B, Environmental Litigation § 11B.08.

2A Environmental Law Practice Guide (Matthew Bender), ch 15A, Indian Country Environmental Law §§ 15A.02, 15A.08.

4 Environmental Law Practice Guide (Matthew Bender), ch 19, Wetlands § 19.04.

4 Environmental Law Practice Guide (Matthew Bender), ch 24, Wildlife and Habitat Protection § 24.03.

5 Environmental Law Practice Guide (Matthew Bender), ch 34A, Agricultural Environmental Law § 34A.05.

6 Environmental Law Practice Guide (Matthew Bender), ch 46, California § 46.12.

2 Treatise on Environmental Law (Matthew Bender), ch 3, Water Pollution § 3.03.

5 Treatise on Environmental Law (Matthew Bender), ch 12, Public Lands and Conservation §§ 12.03, 12.04.

Law Review Articles:

Wolf. Dissecting the Information Quality Act: A Look at the Act's Effect on the Florida Panther and Evidentiary Science. 11 Alb L Envtl Outlook 89, 2006.

Boudreaux. Understanding "Take" in the Endangered Species Act. 34 Ariz St LJ 733, Fall 2002.

May; Porier. Master Environmental Edition Ii: It's Not Easy Being Green: Are DOD INRMPS a Defensible Substitute for Critical Habitat Designation?. 58 AF L Rev 175, 2006.

The Extraterritorial Application of Section 7 of the Endangered Species Act. 13 Colum J Envt'l L 129, 1987.

Fischman; Hall-Rivera. A Lesson for Conservation from Pollution Control Law: Cooperative Federalism for Recovery under the Endangered Species Act. 27 Colum J Envtl L 45, 2002.

Benson. Dams, Duties, and Discretion: Bureau of Reclamation Water Project Operations and the Endangered Species Act. 33 Colum J Envtl L 1, 2008.

Doremus; Tarlock. Fish, Farms, and the Clash of Cultures in the Klamath Basin. 30 Ecology LQ 279, 2003.

Morriss; Stroup. Quartering species: the "living Constitution," the Third Amendment, and the Endangered Species Act. 30 Envtl L 769, Fall 2000.

Blumm; Thorson; Smith. Practiced at the Art of Deception: The Failure of Columbia Basin Salmon Recovery Under the Endangered Species Act. 36 Envtl L 709, Summer 2006.

Becker. The Challenges of Dam Removal: The History and Lessons of the Condit Dam and Potential Threats from the 2005 Federal Power Act Amendments. 36 Envtl L 811, summer 2006.

Extraterritoriality and the Endangered Species Act of 1973. 80 Geo L J 435, December 1991.

Rosenberry. The Effect of the Endangered Species Act on Housing Construction. 33 Hastings L J 551-582, January 1982.

Kunich. Preserving the Womb of the Unknown Species with Hotspots Legislation. 52 Hastings LJ 1149, August 2001.

Gray. The Endangered Species Act: Reform or Refutation? 13 Hastings W-NW J Env L & Pol'y 1, Winter 2007.

Lacey. New Hope for Pacific Salmon? Northwest Resource Information Center v. Northwest Power Planning Council [35 F3d 1371; 1994 US App LEXIS 24341 (CA9, 1994)] Idaho Department of Fish & Game v. National Marine Fisheries Service [850 F Supp 886; 1994 US Dist LEXIS 5089 (D Or, 1994)], and the Aftermath of Judicial Impatience. 14 Hastings W-NW J Env L & Pol'y 333, Winter 2008.

Klee; Mecham. The Nez Perce Indian Water Right Settlement-Federal Perspective. 42 Idaho L Rev 595, 2006.

Strack. Pandora's Box or Golden Opportunity? Using the Settlement of Indian Reserved Water Right Claims to Affirm State Sovereignty Over Idaho Water and Promote Intergovernmental Cooperation. 42 Idaho L Rev 633, 2006.

Cosens. Nez Perce Water Rights Settlement Article: Truth or Consequences: Settling Water Disputes in the Face of Uncertainty. 42 Idaho L Rev 717, 2006.

Shepherd. The Future of Livestock Grazing and the Endangered Species Act. 21 J Envtl L & Litig 383, 2006.

Davison. Federal Agency Action Subject to Section 7(a)(2) of the Endangered Species Act. 14 Mo Envtl L & Pol'y Rev 29, Fall 2006.

Benson. So Much Conflict, Yet So Much in Common: Considering the Similarities between Western Water Law and the Endangered Species Act. 44 Nat Resources J 29, Winter 2004.

Broderick. Towards Common Sense in ESA Enforcement: Federal Courts and the Limits on Administrative Authority and Discretion under the Endangered Species Act. 44 Nat Resources J 77, Winter 2004.

Landis. The Domestic Implications of Environmental Stewardship at Overseas Installations: a Look at Domestic Questions Raised by the United States' Overseas Environmental Policies. 49 Naval L Rev 99, 2002.

The exemption process under the Endangered Species Act: how the "god squad" works and why. 66 Notre Dame L Rev 825, 1991.

Ruhl. Past, Present, and Future Trends of the Endangered Species Act. 25 Pub Land & Resources L Rev 15, 2004.

Hasselman. Holes in the Endangered Species Act Safety Net: the Role of Agency "Discretion" in Section 7 Consultation. 25 Stan Envtl LJ 125, July 2006.

Brennan; Roth; Feldman; Greene. The Endangered Species Act: Thirty Years of Politics, Money, and Science: Square Pegs and Round Holes: Application of the "Best Scientific Data Available" Standard in the Endangered Species Act. 16 Tul Envtl LJ 387, Summer 2003.

The Mandate of Section 7 of the Endangered Species Act of 1973: The Darter Meets the Dam. 47 Univ of Cincinnati L Rev 613, 1978.

Moore. Back to the Drawing Board: a Proposal for Adopting a Listed Species Reporting System under the Endangered Species Act. 24 UCLA J Envtl L & Pol'y 105, 2006.

Interpretive Notes and Decisions:

1. Generally 2. What constitutes "agency action" 3.--Contracts; grants 4.--Implementation of statutes 5.--Leases 6.--Letters and other communications 7.--Orders 8.--Permits 9.--Planning documents 10.--Other particular actions 11. Duty to protect endangered species, generally 12.--Duties derived from other statutes 13.--Duty to consult 14.--Limitations on duty 15.--Particular species 16. Biological assessment 17. Biological opinion 18.--Contents of opinion 19.----No-jeopardy finding 20.----Incidental take statement 21.--Forest management 22.--Grazing rights 23.--Hydropower development 24.--Mineral and petroleum leases 25.--Water rights; flood control 26.--Particular species 27.----Birds 28.----Fish 29.----Mammals 30. Mitigation lands 31. Consultation with Secretary or agency 32.--Application of consultation requirement 33.----Consultation not required 34.--Contents of consultation 35.--Effect on final decision 36.--Standing 37.--Ripeness; mootness 38. Effect on particular activities 39.--Campground operation 40.--Dam construction and operation 41.--Forest management 42.--Land development 43.--Oil and gas exploration 44.--Pesticide and rodenticide usage 45.--Road construction 46. Effect on particular species 47. Rulemaking procedure 48.--Judicial review 49.----Parties; standing 50.----Ripeness; mootness 51.----Standards of review 52.----Particular determinations 53.------Fish; fishing 54.------Mammals 55.------Plants 56. Miscellaneous

1. Generally

On-going nature of project does not preclude enforcement of 16 USCS § 1536. Hill v Tennessee Valley Authority (1977, CA6 Tenn) 549 F2d 1064, 9 Envt Rep Cas 1737, 7 ELR 20172, affd (1978) 437 US 153, 98 S Ct 2279, 57 L Ed 2d 117, 11 Envt Rep Cas 1705, 8 ELR 20513 (superseded by statute on other grounds as stated in Board of Governors of Federal Reserve System v Dimension Financial Corp. (1986) 474 US 361, 106 S Ct 681, 88 L Ed 2d 691, CCH Fed Secur L Rep P 92437) and (superseded by statute on other grounds as stated in Pyramid Lake Paiute Tribe of Indians v United States Dep't of Navy (1990, CA9 Nev) 898 F2d 1410, 20 ELR 20572) and (superseded by statute on other grounds as stated in Pacific Rivers Council v Thomas (1994, CA9 Or) 30 F3d 1050, 94 CDOS 5250, 94 Daily Journal DAR 9626, 39 Envt Rep Cas 1078, 24 ELR 21367) and (superseded by statute on other grounds as stated in Rio Grande Silvery Minnow v Keys (2002, DC NM) 356 F Supp 2d 1222) and (superseded by statute on other grounds as stated in Sierra Club v Strock (2007, SD Fla) 495 F Supp 2d 1188, 65 Envt Rep Cas 2082, 37 ELR 20188, 20 FLW Fed D 995) and (superseded by statute on other grounds as stated in Hoosier Envtl. Council v United States DOT (2007, SD Ind) 2007 US Dist LEXIS 90840) and (superseded by statute on other grounds as stated in Grand Canyon Trust v United States Bureau of Reclamation (2008, DC Ariz) 2008 US Dist LEXIS 83853).

Endangered Species Act (ESA) (16 USCS § 1536) by its terms applies to all action by Secretary; any contract which requires future action on his part contains an implied condition that ESA will be obeyed; strictures of ESA apply to party with whom Secretary contracts. Conservation Law Foundation, Inc. v Andrus (1979, CA1 Mass) 623 F2d 712, 14 Envt Rep Cas 1049, 10 ELR 20067, amd on other grounds (1980, CA1) 14 Envt Rep Cas 1229.

Purpose of 16 USCS § 1536(a)(2) is to ensure that federal government does not undertake actions, such as building dam or highway, that incidentally jeopardize existence of endangered or threatened species. Carson-Truckee Water Conservancy Dist. v Clark (1984, CA9 Nev) 741 F2d 257, 21 Envt Rep Cas 2111, 14 ELR 20797, cert den (1985) 470 US 1083, 85 L Ed 2d 141, 105 S Ct 1842.

Congress did not intend that 16 USCS § 1536 apply to right-of-way agreement with private party finalized before passage of ESA where federal agency currently lacks discretion to influence private activity for benefit of protected species. Sierra Club v Babbitt (1995, CA9 Or) 65 F3d 1502, 95 CDOS 7290, 95 Daily Journal DAR 12451, 25 ELR 21539.

Because Endangered Species Act, 16 USCS §§ 1531 et seq., did not prescribe how jeopardy prong was to be determined, nor how species populations were to be estimated, it was permissible interpretation of 16 USCS § 1536(a)(2) to rest jeopardy analysis on habitat proxy. Gifford Pinchot Task Force v United States Fish & Wildlife Serv. (2004, CA9 Wash) 378 F3d 1059, 59 Envt Rep Cas 1110, 34 ELR 20068, amd on other grounds (2004, CA9 Wash) 387 F3d 968.

In absence of affirmative evidence showing why reliance on Northwest Forest Plan (NFP) was inadequate or incorrect, Fish and Wildlife Service could permissibly rely, in part, on projections and assumptions of NFP in its jeopardy analysis under 16 USCS § 1536, part of Endangered Species Act, 16 USCS §§ 1531 et seq. Gifford Pinchot Task Force v United States Fish & Wildlife Serv. (2004, CA9 Wash) 378 F3d 1059, 59 Envt Rep Cas 1110, 34 ELR 20068, amd on other grounds (2004, CA9 Wash) 387 F3d 968.

Endangered Species Act (ESA), 16 USCS §§ 1531-1544, does not permit agencies to ignore potential jeopardy risks by labeling parts of action "nondiscretionary"; under 50 C.F.R. § 402.03, ESA's requirements under 16 USCS § 1536 apply to all actions in which there is discretionary federal involvement or control. Nat'l Wildlife Fed'n v Nat'l Marine Fisheries Serv. (2007, CA9 Or) 481 F3d 1224, 64 Envt Rep Cas 1353, 37 ELR 20079.

Neither Endangered Species Act, 16 USCS §§ 1531-1544, nor U.S. Supreme Court's decision in National Association of Home Builders permits agencies to ignore potential jeopardy risks by labeling parts of action nondiscretionary for purposes of 16 USCS § 1536. Nat'l Wildlife Fedn v Nat'l Marine Fisheries Serv. (2008, CA9 Or) 524 F3d 917, 66 Envt Rep Cas 1449, 38 ELR 20099.

Agencies cannot escape obligation to comply with Endangered Species Act (ESA), 16 USCS §§ 1531-1544, merely because they are bound to comply with another statute that has consistent, complementary objectives; as U.S. Supreme Court emphasized in National Association of Home Builders, ESA's no-jeopardy mandate applies to every discretionary agency action--regardless of expense or burden its application might impose; when agency, acting in furtherance of broad Congressional mandate, chooses course of action which is not specifically mandated by Congress and which is not specifically necessitated by broad mandate, that action is, by definition, discretionary and is thus subject to 16 USCS § 1536 consultation. Nat'l Wildlife Fedn v Nat'l Marine Fisheries Serv. (2008, CA9 Or) 524 F3d 917, 66 Envt Rep Cas 1449, 38 ELR 20099.

To be protected under 16 USCS § 1536(a)(2), species must be listed under § 1533. Wilson v Block (1983, App DC) 228 US App DC 166, 708 F2d 735, 19 Envt Rep Cas 1201, 13 ELR 20861, cert den (1983) 464 US 956, 78 L Ed 2d 330, 104 S Ct 371 and cert den (1984) 464 US 1056, 79 L Ed 2d 197, 104 S Ct 739.

16 USCS §§ 1533(d) and 1536 require Secretary of Interior to act to ensure conservation of protected species. Defenders of Wildlife v Andrus (1977, DC Dist Col) 428 F Supp 167, 9 Envt Rep Cas 1889, 7 ELR 20269.

Goal of informal consultation and dialogue under Endangered Species Act of 1973 is to explore potential impact on species and ways to ameliorate it; fact that draft biological assessment concludes that project may adversely affect endangered species does not prohibit agency from engaging in further study and dialogue and, based on that, reaching opposite conclusion. New Mexico ex rel. Richardson v BLM (2006, DC NM) 459 F Supp 2d 1102, 164 OGR 347, affd in part and revd in Part on other grounds, vacated, in part on other grounds, as moot (2009, CA10 NM) 565 F3d 683, 68 Envt Rep Cas 2031, 39 ELR 20101, 170 OGR 477.

2. What constitutes "agency action"

Private actor files notice of intent (NOI) and creates storm water pollution prevention plan (SWPPP), and neither filing of NOI nor creation of SWPPP by private contractor requires any federal action; without federal action, consultation requirements of § 7 of Endangered Species Act, 16 USCS §§ 1531 et seq., specifically 16 USCS § 1536, are not triggered; therefore, EPA need not engage in consultation with Fish and Wildlife Service and/or National Marine Fisheries Service every time NOI is filed or SWPPP is prepared. Tex. Indep. Producers & Royalty Owners Ass'n v EPA (2005, CA7) 410 F3d 964, 60 Envt Rep Cas 1513, 35 ELR 20131, reh den, reh, en banc, den (2005, CA7) 2005 US App LEXIS 18825.

Endangered Species Act defines agency action as "any action authorized, funded, or carried out by such agency" and Supreme Court gives this definition very broad scope. North Slope Borough v Andrus (1980, DC Dist Col) 486 F Supp 332, 13 Envt Rep Cas 2169, 10 ELR 20115, vacated, in part on other grounds (1980, App DC) 14 Envt Rep Cas 1846 and affd in part and revd in part on other grounds (1980, App DC) 206 US App DC 184, 642 F2d 589, 15 Envt Rep Cas 1633, 10 ELR 20832 (criticized in Conner v Burford (1988, CA9 Or) 836 F2d 1521, 27 Envt Rep Cas 1443, 10 FR Serv 3d 560, 18 ELR 20379).

Environmental purpose need not be expressed in enabling statute to trigger § 7(a)(2) (16 USCS § 1536(a)(2)) of Endangered Species Act; stated environmental purpose is not necessary if action agency otherwise has discretion to act in such way that could benefit endangered and threatened species. Nat'l Wildlife Fed'n v FEMA (2004, WD Wash) 345 F Supp 2d 1151, 59 Envt Rep Cas 1973.

3.--Contracts; grants

Negotiating and executing contracts constitute agency action under Endangered Species Act. Tinoqui-Chalola Council of Kitanemuk & Yowlumne Tejon Indians v United States DOE (2000, CA9 Cal) 232 F3d 1300, 2000 CDOS 9280, 2000 Daily Journal DAR 12395, 31 ELR 20286.

Award of Clean Water Act construction grant by Environmental Protection Agency is agency action which must conform to requirements of Endangered Species Act (16 USCS §§ 1531 et seq.); issuance of national pollutant discharge elimination system permit by EPA is agency action which must conform to requirements of Act. Pacific Legal Foundation v Watt (1982, CD Cal) 539 F Supp 841, 17 Envt Rep Cas 1801, 13 ELR 20109, affd in part without op and revd in part without op on other grounds, vacated, in part, without op (1983, CA9 Cal) 703 F2d 576, reported in full (1983, CA9 Cal) 19 Envt Rep Cas 1602, 13 ELR 20392 and reh den (1983, CA9 Cal) 711 F2d 1065 and appeal after remand sub nom Kilroy v Ruckelshaus (1984, CA9 Cal) 738 F2d 1448, 21 Envt Rep Cas 1385, 14 ELR 20774.

Agency action subject to consultation was not authorization or merits of new water service contracts, rather, it was operation of Central Valley Project and California State Water Project under Long-Term Central Valley Project and State Water Project Operations Criteria and Plan completed June 30, 2004 and whether those operations would cause jeopardy to survival or recovery of winter-run Chinook, spring-run Chinook, and Central Valley steelhead; government was entitled to make reasonable assumptions about operational volume of water flows, water levels, temperature, and quality based on historical and projected data contained in administrative record; United States National Marine Fisheries Service was not required to analyze effects of full contract deliveries as plaintiffs contended. Pac. Coast Fed'n of Fishermen's Ass'ns v Gutierrez (2008, ED Cal) 2008 US Dist LEXIS 31462, Amd on other grounds, summary judgment gr, in part, summary judgment den, in part on other grounds (2008, ED Cal) 67 Envt Rep Cas 1674, amd on other grounds, summary judgment gr, in part, summary judgment den, in part on other grounds (2008, ED Cal) 606 F Supp 2d 1122, findings of fact/conclusions of law, request den (2008, ED Cal) 606 F Supp 2d 1195, 68 Envt Rep Cas 1234.

4.--Implementation of statutes

Environmental Protection Agency's approval under Clean Water Act of state's water quality revisions and lists of waters that did not meet established water quality standards were agency actions for which formal consultation and biological assessment were required under 15 USCS § 1536. Sierra Club v United States EPA (2001, DC Md) 162 F Supp 2d 406, 53 Envt Rep Cas 2088.

National Flood Insurance Act, 42 USCS § 4001 et seq., conferred discretion on Federal Emergency Management Agency (FEMA) to implement National Flood Insurance Plan (NFIP) in manner that would inure to benefit of Puget Sound Chinook salmon, with exception of part of program that dealt with actual sale of flood insurance; accordingly, FEMA's implementation of NFIP, with exception of actual sale of flood insurance, was discretionary "agency action" for purposes of § 7(a)(2) (16 USCS § 1536(a)(2)) of Endangered Species Act. Nat'l Wildlife Fed'n v FEMA (2004, WD Wash) 345 F Supp 2d 1151, 59 Envt Rep Cas 1973.

National Flood Insurance Program falls within broad definition of "agency action," to which § 7(a)(2) (16 USCS § 1536(a)(2)) of Endangered Species Act applies. Nat'l Wildlife Fed'n v FEMA (2004, WD Wash) 345 F Supp 2d 1151, 59 Envt Rep Cas 1973.

5.--Leases

Agency action entails not only leasing but leasing and all post-leasing activities through production and abandonment. Conner v Burford (1988, CA9 Mont) 848 F2d 1441, 18 ELR 21182, 100 OGR 84 (criticized in NRDC v United States Army Corps of Eng'rs (2001, SD Fla) 31 ELR 20880).

Secretary must make comprehensive analysis of all ramifications of lease-sale under Outer Continental Shelf Land Act (OCSLA) (43 USCS §§ 1331 et seq.) and consider all checks and balances and all mitigating measures adopted in pursuance of OCSLA when considering whether there has been satisfaction of Endangered Species Act (16 §§ 1531 et seq.) of mandate that no endangered life be jeopardized; such considerations may be considered "agency action" subject to judicial review. North Slope Borough v Andrus (1980, App DC) 206 US App DC 184, 642 F2d 589, 15 Envt Rep Cas 1633, 10 ELR 20832 (criticized in Conner v Burford (1988, CA9 Or) 836 F2d 1521, 27 Envt Rep Cas 1443, 10 FR Serv 3d 560, 18 ELR 20379).

6.--Letters and other communications

Fish and Wildlife Service's letter of concurrence giving its opinion that planned timber operations would not likely result in "take" of spotted owl was not "agency action" under 16 USCS § 1536 where Service stated in letter that concurrence did not constitute approval of plan and where no federal agency discretion was involved. Marbled Murrelet v Babbitt (1997, CA9 Cal) 111 F3d 1447, 97 CDOS 2847, 97 Daily Journal DAR 5029, 44 Envt Rep Cas 1126, 27 ELR 21141.

Indian tribe was not entitled to summary judgment on its claim that Forest Service violated Endangered Species Act (ESA), 16 USCS § 1536(a)(2), because Forest Service's determination that mining operation was not likely to cause significant disturbance of surface resources was not authorization of subsequent mining activities such that entire Notice of Intent review process constituted federal action within meaning of ESA. Karuk Tribe of Cal. v United States Forest Serv. (2005, ND Cal) 379 F Supp 2d 1071, 61 Envt Rep Cas 1100.

Because United States Forest Service's issuance of 16 USCS § 1536(d) determination qualified as affirmative "agency action" under 16 USCS § 1536(a)(2), court had authority to issue injunction after reinitiation of consultation to prohibit activities that potentially violated ESA during consultation process; court prohibited all snowmobiling and snowmobile trail grooming within designated caribou recovery area inside Idaho Panhandle National Forest until completion of formal consultation. Defenders of Wildlife v Martin (2006, ED Wash) 454 F Supp 2d 1085, 64 Envt Rep Cas 1337, summary judgment gr, claim dismissed, claim allowed, injunction gr (2007, ED Wash) 2007 US Dist LEXIS 13061.