                 FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


COTTONWOOD ENVIRONMENTAL                 Nos. 13-35624
LAW CENTER,                                   13-35631
              Plaintiff-Appellee
              /Cross-Appellant,             D.C. No.
                                         9:12-cv-00045-
                  v.                          DLC

UNITED STATES FOREST SERVICE;
FAYE KRUEGER, in her official               OPINION
capacity as Regional Forester for the
U.S. Forest Service, Region One,
              Defendants-Appellants
                   /Cross-Appellees.


      Appeal from the United States District Court
               for the District of Montana
   Dana L. Christensen, Chief District Judge, Presiding

                  Argued and Submitted
             July 7, 2014—Portland, Oregon

                   Filed June 17, 2015

       Before: Harry Pregerson, Richard A. Paez,
          and Paul J. Watford, Circuit Judges.

                 Opinion by Judge Paez;
Partial Concurrence and Partial Dissent by Judge Pregerson
2         COTTONWOOD ENVTL. LAW CTR. V. USFS

                           SUMMARY*


                      Environmental Law

    The panel affirmed the district court’s holding that the
United States Forest Service violated Section 7 of the
Endangered Species Act when it failed to reinitiate
consultation after the United States Fish and Wildlife Service
designated critical habitat for the Canada lynx on National
Forest land; affirmed the district court’s denial of injunctive
relief to Cottonwood Environmental Law Center; and
remanded to provide Cottonwood an opportunity to make an
evidentiary showing that specific projects would likely cause
irreparable damage to its members’ interests.

     In 2000, the Fish and Wildlife Service listed the Canada
lynx as a threatened species under the Endangered Species
Act, and in 2006 designated critical habitat that did not
include any National Forest lands. In 2007, the Forest
Service adopted the Lynx Amendments, which set specific
guidelines and standards for permitting activities that were
determined likely to have an adverse effect on the Canada
lynx. The Forest Service initiated Section 7 consultation with
the Fish and Wildlife Service, which determined that the
Forest Service’s standards and guidelines did not jeopardize
the Canada lynx. Subsequently, the Fish and Wildlife Service
discovered that its decisions relating to the designation of
critical habitat were flawed, and after reevaluating the data
the Fish and Wildlife Service designated extensive National
Forest land as critical habitat. The district court determined

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
         COTTONWOOD ENVTL. LAW CTR. V. USFS                    3

that the Forest Service violated the Endangered Species Act
when it decided not to reinitiate consultation after the Fish
and Wildlife Service revised its critical habitat designation to
include National Forest land.

    The panel held that Cottonwood had Article III standing
to challenge the Lynx Amendments. The panel also held that
Cottonwood’s lawsuit was ripe for adjudication. The panel
further held that pursuant to the Endangered Species Act’s
implementing regulations, the Forest Service was required to
reinitiate consultation on the Lynx Amendments when the
Fish and Wildlife Service designated critical habitat in
National Forests.

    Addressing Cottonwood’s cross-appeal challenging the
district court’s denial of its request for injunctive relief, the
panel held that there is no presumption of irreparable injury
where there has been a procedural violation in Endangered
Species Act cases. The panel held that a plaintiff must show
irreparable injury to justify injunctive relief. The panel
recognized that the presumption of irreparable harm in
Thomas v. Peterson, 753 F.2d 754, 764 (9th Cir. 1985), was
no longer good law following Supreme Court cases
addressing injunctive relief in Winter v. Natural Resources
Defense Council, Inc., 555 U.S. 7 (2008), and Monsanto Co.
v. Geertson Seed Farms, 561 U.S. 139 (2010). The panel
further held that Cottonwood should not be faulted for relying
on Thomas as a basis for injunctive relief, and remanded on
an open record to allow Cottonwood an opportunity to make
a showing of irreparable injury.

   Judge Pregerson concurred in part and dissented in part.
Dissenting from Section VI of the majority opinion
concerning injunctive relief, Judge Pregerson would not read
4       COTTONWOOD ENVTL. LAW CTR. V. USFS

Winter and Monsanto as overruling Thomas. He would apply
Thomas and grant Cottonwood’s request for an injunction
pending compliance with the Endangered Species Act’s
Section 7 consultation requirements.


                        COUNSEL

Allen M. Brabender (argued), Attorney; Robert G. Dreher,
Acting Assistant Attorney General; John H. Martin, Attorney,
United States Department of Justice, Environmental and
Natural Resources Division, Washington, D.C.; Andrew R.
Varcoe, United States Department of Agriculture, Office of
the General Counsel, Washington, D.C., for Plaintiffs-
Appellants and Cross-Appellees.

Matt Kenna (argued), Attorney, Durango, Colorado; John
Meyer, Attorney, Cottonwood Environmental Law Center,
Sandpoint, Idaho, for Plaintiff-Appellee and Cross-Appellant.

Robert Molinelli and Scott W. Horngren, American Forest
Resource Council, Portland, Oregon, for Amici Curiae
American Forest Resource Council, Public Lands Council,
Montana Wood Products Association, Inc., Montana Logging
Association, Associated Logging Contractors, Inc.—Idaho,
California Forestry Association, and Douglas Timber
Operators.

Douglas A. Ruley, Vermont Law School, Environmental &
Natural Resources Law Clinic, South Royalton, Vermont, for
Amici Curiae Big Wild Adventures and Natural Exposures.
         COTTONWOOD ENVTL. LAW CTR. V. USFS                   5

                          OPINION

PAEZ, Circuit Judge:

    In 2000, the United States Fish and Wildlife Service
(“FWS”) listed the Canada lynx, a snow-sturdy cousin to the
bobcat, as a threatened species under the Endangered Species
Act of 1973 (“ESA”), 16 U.S.C. § 1531 et seq. FWS
designated critical habitat for the Canada lynx in 2006, but
did not include any National Forest System land.
Subsequently, the United States Forest Service (“Forest
Service”) issued standards and guidelines for land
management activities on National Forest land that responded
to FWS’s listing and designation decisions. The Forest
Service then initiated consultation with FWS under Section
7 of the ESA, 16 U.S.C. § 1536(a)(2). FWS determined that
the Forest Service’s standards and guidelines did not
jeopardize the Canada lynx. Shortly after completing the
consultation process, FWS discovered that its decisions
relating to the designation of critical habitat for the Canada
lynx were flawed. After re-evaluating the data, FWS
designated extensive National Forest land as critical habitat.

     In this case, we must decide whether the district court
properly determined that the Forest Service violated the ESA
when it decided not to reinitiate consultation after the FWS
revised its critical habitat designation to include National
Forest land. Before doing so, however, we address the Forest
Service’s arguments that Cottonwood lacks standing to bring
its claim and that the claim is not ripe for review. Because
we conclude that Cottonwood’s claim is justiciable, and that
the Forest Service violated the ESA, we proceed to consider
whether the district court erred in denying injunctive relief to
Cottonwood. Although we affirm the district court’s ruling,
6         COTTONWOOD ENVTL. LAW CTR. V. USFS

we remand for further proceedings to allow Cottonwood an
opportunity to make the necessary showing in support of
injunctive relief.

                           I. Background

     In 2000, after eight years of litigation by conservation
groups, FWS listed the distinct population segment of Canada
lynx in the contiguous forty-eight states as a threatened
species. Endangered and Threatened Wildlife and Plants;
Determination of Threatened Status for the Contiguous U.S.
Distinct Population Segment of the Canada Lynx and Related
Rule, 65 Fed. Reg. 16052-01, 16052, 16061 (Mar. 24, 2000).
Six years later, FWS designated 1,841 square miles of land as
critical habitat for the Canada lynx. Endangered and
Threatened Wildlife and Plants; Designation of Critical
Habitat for the Contiguous United States Distinct Population
Segment of the Canada Lynx, 71 Fed. Reg. 66008-01, 66030
(Nov. 9, 2006). The designation included 1,389 square miles
in the Northern Rocky Mountains “critical habitat unit.”1
FWS did not, however, designate any National Forest land as
critical habitat.

   In March 2007, the Forest Service adopted the Northern
Rocky Mountains Lynx Management Direction, which is
commonly referred to as the “Lynx Amendments.” The Lynx
Amendments were designed to “incorporate management

    1
     FWS divides critical habitat for the Canada lynx into five units,
including: Maine (“Unit 1”), Minnesota (“Unit 2”), Northern Rocky
Mountains (“Unit 3”), North Cascades (“Unit 4”), and Greater
Yellowstone Area (“Unit 5”). Endangered and Threatened Wildlife and
Plants; Revised Designation of Critical Habitat for the Contiguous United
States Distinct Population Segment of the Canada Lynx, 74 Fed. Reg.
8616-01 (Feb. 25, 2009).
          COTTONWOOD ENVTL. LAW CTR. V. USFS                           7

direction in land management plans that conserves and
promotes recovery of Canada lynx . . . while preserving the
overall multiple-use direction in existing plans.” The Lynx
Amendments set specific guidelines and standards for
permitting activities that are determined likely to have an
adverse effect on Canada lynx. These activities include over-
the-snow recreational activity, wildland fire management,
pre-commercial forest thinning, and other projects that might
affect the Canada lynx. The Forest Service amended the
Forest Plans2 for eighteen National Forests to include the
Lynx Amendments.

     The Forest Service initiated Section 7 consultation with
FWS, the consulting agency. FWS issued a biological
opinion (“BiOp”) in March 2007, which determined that the
management direction in the Lynx Amendments did not
jeopardize the Canada lynx. The BiOp concluded that “[n]o
critical habitat has been designated for this species on Federal
lands within the [areas governed by the Lynx Amendments],
therefore none will be affected.” Just four months later,
however, FWS announced that its critical habitat designation
had been “improperly influenced by then deputy assistant
secretary of the Interior Julie MacDonald and, as a result,
may not be supported by the record, may not be adequately
explained, or may not comport with the best available
scientific and commercial information.” Endangered and
Threatened Wildlife and Plants; Revised Designation of


 2
   Pursuant to the National Forest Management Act, 16 U.S.C. § 1600 et
seq., the Forest Service must promulgate Forest Plans, also known as Land
Resource Management Plans, to “guide sustainable, integrated resource
management of the resources within the plan area in the context of the
broader landscape, giving due consideration to the relative values of the
various resources in particular areas.” 36 C.F.R. § 219.1(b).
8              COTTONWOOD ENVTL. LAW CTR. V. USFS

Critical Habitat for the Contiguous United States Distinct
Population Segment of the Canada Lynx, 74 Fed. Reg.
8616-01, 8618 (Feb. 25, 2009). In 2009, FWS revised its
critical habitat designation upward from 1,841 square miles
to 39,000 square miles. Id. at 8642. The revised designation
included more than 10,000 square miles in the Northern
Rocky Mountains critical habitat unit. Id. Unlike the 2006
designation, the 2009 revised designation identified critical
habitat in eleven National Forests. Despite this significant
addition of critical habitat in the National Forests, the Forest
Service declined to reinitiate Section 7 consultation with
FWS on the Lynx Amendments. Thereafter, FWS issued
BiOps determining that two projects within the Gallatin
Forest, considered occupied by the Canada lynx, were
unlikely to modify or adversely affect the lynx’s critical
habitat.3

     In 2012, the Cottonwood Environmental Law Center
(“Cottonwood”) filed this action in district court alleging that
the Forest Service violated the ESA by failing to reinitiate
consultation. The parties filed cross-motions for summary
judgment. The court ruled that the revised designation of
critical habitat for the Canada lynx required reinitiation of
Section 7 consultation on the Lynx Amendments. Salix v.
U.S. Forest Serv., 944 F. Supp. 2d 984, 986 (D. Mont. 2013).
Although the court granted summary judgment to
Cottonwood and ordered reinitiation of consultation, it
declined to enjoin any specific project. Salix, 944 F. Supp. 2d
at 1000–02.




    3
        See infra notes 6 and 8.
            COTTONWOOD ENVTL. LAW CTR. V. USFS                9

      The parties filed timely cross-appeals.4

                      II. Standard of Review

    We review de novo a district court’s decisions on cross-
motions for summary judgment. Hoopa Valley Indian Tribe
v. Ryan, 415 F.3d 986, 989 (9th Cir. 2005). We also review
de novo a district court’s rulings on questions of standing and
ripeness. Sierra Forest Legacy v. Sherman, 646 F.3d 1161,
1176 (9th Cir. 2011). We review the denial of injunctive
relief for abuse of discretion. Dep’t of Parks & Recreation
for State of Cal. v. Bazaar Del Mundo Inc., 448 F.3d 1118,
1123 (9th Cir. 2006).

                            III. Standing

    The Forest Service first argues that Cottonwood lacks
Article III standing to challenge the Lynx Amendments
because it brought a programmatic challenge, rather than a
challenge to a specific implementing project that poses an
imminent risk of harm to its members. As discussed below,
we conclude otherwise.

                                   A.

    To establish Article III standing, “a plaintiff must show
(1) it has suffered an ‘injury in fact’ that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the
challenged action of the defendant; and (3) it is likely, as
opposed to merely speculative, that the injury will be
redressed by a favorable decision.” Friends of the Earth, Inc.

 4
     We have jurisdiction pursuant to 28 U.S.C. § 1291.
10       COTTONWOOD ENVTL. LAW CTR. V. USFS

v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81
(2000). An association or organization has standing when
“(a) its members would otherwise have standing to sue in
their own right; (b) the interests it seeks to protect are
germane to the organization’s purpose; and (c) neither the
claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.” Hunt v.
Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977).
An organization can satisfy the concrete harm requirement by
alleging “an injury to the recreational or even the mere
esthetic interests” of its members. Jayne v. Sherman, 706
F.3d 994, 999 (9th Cir. 2013) (internal quotation marks
omitted).

    The Forest Service argues that the declarations
Cottonwood filed in the district court on behalf of its
members do not satisfy Article III standing requirements, as
articulated in Summers v. Earth Island Institute, 555 U.S. 488
(2009). In particular, the Forest Service argues that
Cottonwood does not have standing because Cottonwood
only challenges the failure to reinitiate consultation, rather
than particular actions that would more directly injure
Cottonwood’s members.            In Summers, a group of
environmental organizations sought a nationwide injunction
against the enforcement of regulations issued by the Forest
Service that exempted small-scale fire-control and timber-
salvage projects from the notice, comment, and appeal
process that applied to more substantial land management
decisions. Id. at 490. Plaintiffs also specifically challenged
a 238-acre salvage sale of timber, called the Burnt Ridge
Project, in the Sequoia National Forest. Id. at 491. During
the course of litigation, the parties settled their dispute over
the Burnt Ridge Project. Id. After the settlement was in
place, the district court proceeded to invalidate five
         COTTONWOOD ENVTL. LAW CTR. V. USFS                     11

regulations and grant a nationwide injunction enjoining their
enforcement. Id. at 492. We affirmed. Id.

    Reversing, the Supreme Court held that the plaintiffs
failed to establish injury in fact necessary to satisfy Article III
standing requirements. Id. at 494–97. The plaintiffs filed
only one affidavit—from Jim Bensman, a member of one of
the plaintiff organizations—that purported to relate a
threatened interest beyond the Burnt Ridge Project. Id. at
495. The Court held that Bensman’s representation of
general plans to visit “several unnamed National Forests in
the future” was insufficient to establish standing because
Bensman “fail[ed] to allege that any particular timber sale or
other project claimed to be unlawfully subject to the
regulations will impede a specific and concrete plan . . . to
enjoy the National Forests.” Id. The Court emphasized that,
although Bensman referred to a series of projects in the
Allegheny National Forest, Bensman did not “assert . . . any
firm intention to visit their locations, saying only that [he]
‘wants to’ go there . . . . Such ‘some day’ intentions—
without any description of concrete plans, or indeed any
specification of when the some day will be—do not support
a finding of . . . ‘actual or imminent’ injury . . . .” Id. at 496
(internal quotation marks and citations omitted). Thus, the
Court concluded that there was “a chance, but . . . hardly a
likelihood, that Bensman’s wanderings w[ould] bring him to
a parcel about to be affected by a project unlawfully subject
to the regulations.” Id. at 495.

    There is a clear contrast between the specificity of
Cottonwood’s declarations and Bensman’s affidavit.
Cottonwood’s declarations establish that its members
extensively utilize specific National Forests where the Lynx
Amendments apply and demonstrate their date-certain plans
12         COTTONWOOD ENVTL. LAW CTR. V. USFS

to visit the forests for the express purpose of viewing,
enjoying, and studying Canada lynx.5

    For instance, the declaration of Sara Jane Johnson
describes a twenty-year history of lynx-related recreational
activity in the Gallatin, Flathead, and Helena National Forests
with plans to return in “spring and summer of 2013.”
Similarly, the declaration of Jennifer Pulchinski describes
several past trips she took to the Gallatin and Custer National
Forests to look for Canada lynx, and her plans to take a
similar trip in “mid-July of 2013.” Further, several
declarations state that Cottonwood’s members engage in
lynx-related recreation within specific project areas that have
applied, or will apply, the management direction in the Lynx
Amendments. For example, Joe Milbrath states that he has
“already recreated in the Bozeman Watershed Project area,
and ha[s] definitive plans to ski in the area next spring and to
look for signs of Canada lynx.”6 Cottonwood’s members
assert that the Forest Service’s failure to reinitiate
consultation will cause aesthetic, recreational, scientific, and


  5
    As specified in the 2007 BiOp, the following National Forests are
considered occupied by the Canada lynx: Bridger-Teton, Clearwater,
Custer, Flathead, Gallatin, Helena, Idaho Panhandle, Kootenai, Lewis and
Clark, Lolo, Shoshone, and the Targhee. The following six National
Forests contain lynx habitat, but are not occupied by the Canada lynx:
Ashley, Beaverhead-Deerlodge, Bighorn, Bitterroot, Nez Perce, and
Salmon-Challis.
  6
     The Bozeman Municipal Watershed Fuel Reduction Project area is
located in the Gallatin National Forest in Montana. The purpose of the
project is to treat vegetation and fuel conditions to diminish the impact of
wildland fires in the area. The project includes thinning of mature stands
and smaller diameter trees, among other strategies. In November 2009,
FWS issued a BiOp concluding that the project was “not likely to result
in the destruction or adverse modification of lynx critical habitat.”
          COTTONWOOD ENVTL. LAW CTR. V. USFS                           13

spiritual injury, in the specific forests and project areas
covered by the Lynx Amendments. Unlike Bensman’s
affidavit in Summers, these declarations sufficiently establish
“a geographic nexus between the individual asserting the
claim and the location suffering an environmental impact.”
See W. Watersheds Project v. Kraayenbrink, 632 F.3d 472,
485 (9th Cir. 2011) (internal quotation marks omitted); see
also Wilderness Soc., Inc. v. Rey, 622 F.3d 1251, 1256 (9th
Cir. 2010).

                                    B.

    This is not the first time we have held that a plaintiff has
standing to challenge programmatic management direction
without also challenging an implementing project that will
cause discrete injury. In Sierra Forest Legacy, a post-
Summers case, we explained that “a procedural injury is
complete after [a Forest Plan] has been adopted, so long as []
it is fairly traceable to some action that will affect the
plaintiff’s interests.”7 646 F.3d at 1179. As in Sierra Forest


 7
   The Forest Service argues that this is not a procedural rights case. The
Forest Service relies on a misreading of Lujan to support its argument.
Although Lujan explained that there can be no standing for the assertion
of procedural rights where plaintiffs raise “only a generally available
grievance” about the government’s failure to comply with a statutory
requirement, the Court recognized that procedural rights exist where the
violation is connected to a concrete injury. Lujan, 504 U.S. at 573 & n.8.
Here, Cottonwood does not allege the “deprivation of a procedural right
without some concrete interest that is affected by the deprivation . . . ,”
Summers, 555 U.S. at 496, but rather “a procedural requirement the
disregard of which could impair a separate concrete interest of theirs,”
Lujan, 504 U.S. at 572. Accordingly, along with other circuits, we have
recognized a procedural rights theory of standing in the context of alleged
Section 7 violations. See, e.g., Natural Res. Def. Council v. Jewell,
749 F.3d 776, 782–83 (9th Cir. 2014) (en banc); Salmon Spawning &
14         COTTONWOOD ENVTL. LAW CTR. V. USFS

Legacy, Cottonwood properly alleges procedural injury
stemming from the Forest Service’s decision not to reinitiate
consultation on the Lynx Amendments. The declarations
connect that procedural injury to imminent harm in specific
forests and project areas. Cottonwood was not required to
challenge directly any specific project because, as in Sierra
Forest Legacy, the “procedural injury [was] complete.” See
id.; see also Jayne, 706 F.3d at 999–1000 (holding that
plaintiffs had standing to challenge a programmatic rule
without challenging a specific implementing project).

    Although the Forest Service acknowledges that
Cottonwood’s members have a relationship to the areas
affected by the Bozeman Municipal Watershed Project and
the East Boulder Fuels Reduction Project,8 it argues that
Cottonwood “failed to link these projects, or the absence of
the reinitiation of programmatic consultation, to any specific
injury to its members’ interests.” The Forest Service argues
that, because there was Section 7 consultation on these
individual projects after the revised critical habitat
designation, and because there was a determination that the
projects would not have an adverse impact on lynx critical


Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1229 (9th Cir. 2008); In
re Endangered Species Act Section 4 Deadline Litig.–MDL No. 2165,
704 F.3d 972, 977 (D.C. Cir. 2013); Sierra Club v. Glickman, 156 F.3d
606, 613 (5th Cir. 1998).
   8
     The East Boulder Fuels Reduction Project area is located in the
Gallatin National Forest in Montana. The purpose of this project is to
reduce hazardous fuel loading in the Wildland Urban Interface along the
East Boulder River drainage by thinning and clearing vegetation across
872 acres. In March 2009, FWS issued a BiOp concluding that this
project was “not likely to result in the destruction or adverse modification
of lynx critical habitat.”
          COTTONWOOD ENVTL. LAW CTR. V. USFS                          15

habitat, no injury resulted from the failure to reinitiate
consultation on the Lynx Amendments.

    The Forest Service’s argument is not persuasive as it
overlooks a significant aspect of the consultation process.
Although the Forest Service may initiate Section 7
consultation with FWS on individual projects, FWS bases its
analysis of those projects largely on the Lynx Amendments
and corresponding 2007 BiOp.9 For instance, the BiOp for
the Bozeman Municipal Watershed Fuel Reduction Project
(“Bozeman BiOp”) cites to the Lynx Amendments and the
2007 BiOp as primary sources of information, and states that
individual projects will be evaluated against the standards and
guidelines in the Lynx Amendments. In fact, the Bozeman
BiOp frames its ultimate conclusion in terms of those
standards: “[w]e have determined that the proposed action is
in compliance with the [Lynx Amendments], and that its
effects on lynx were included in those anticipated and
analyzed in the 2007 biological opinion on the [Lynx
Amendments].” Thus, even though individual projects may
trigger additional Section 7 scrutiny, that scrutiny is
dependent, in large part, on the Lynx Amendments and the
2007 BiOp that were completed before critical habitat was
designated on National Forest land. Further, project-specific
consultations do not include a unit-wide analysis comparable
in scope and scale to consultation at the programmatic level.

 9
   This is consistent with FWS’s own explanation of how a programmatic
Section 7 consultation will affect consultation on implementing projects:
“In issuing its biological opinion on an action, [FWS’s] finding under
section 7(a)(2) entails an assessment of the degree of impact that action
will have on a listed species. Once evaluated, that degree of impact is
factored into all future section 7 consultations conducted in the area.”
Interagency Cooperation-Endangered Species Act of 1973 as Amended;
Final Rule, 51 Fed. Reg. 19,926-01, 19,932 (June 3, 1986).
16         COTTONWOOD ENVTL. LAW CTR. V. USFS

                                    C.

     The Forest Service’s insistence that Cottonwood must
establish how the failure to reinitiate consultation on the Lynx
Amendments would lead to different, injurious results at the
project-specific level places an inappropriate burden on
Cottonwood. That is, Cottonwood is not required to establish
what a Section 7 consultation would reveal, or what standards
would be set, if the Forest Service were to reinitiate
consultation. Ideally, that is the objective and purpose of the
consultation process. See Karuk Tribe of Cal. v. U.S. Forest
Serv., 681 F.3d 1006, 1020 (9th Cir. 2012) (en banc). Thus,
where a procedural violation is at issue, a plaintiff need not
“meet[] all the normal standards for redressability and
immediacy.”10 Lujan v. Defenders of Wildlife, 504 U.S. 555,
572 n.7 (1992). In such a case, we have explained that “a
litigant need only demonstrate that he has a procedural right
that, if exercised, could protect his concrete interests and that
those interests fall within the zone of interests protected by
the statute at issue.” Jewell, 749 F.3d at 783 (internal
alterations and quotations omitted). Cottonwood has properly
alleged that the reinitiation of consultation could result in the
protection of its members’ interests in specific National
Forests and project areas where those members recreate. See
id. Those interests are clearly within the “zone of interests
protected by the [ESA].” See id.



  10
     As the D.C. Circuit has explained, the doctrine of procedural rights
“relieves the plaintiff of the need to demonstrate that (1) the agency action
would have been different but for the procedural violation, and (2) court-
ordered compliance with the procedure would alter the final result.” In re
Endangered Species Act, 704 F.3d at 977 (internal quotation marks and
alterations omitted).
         COTTONWOOD ENVTL. LAW CTR. V. USFS                   17

    The standing analysis in this case is strikingly similar to
our analysis in Salmon Spawning, 545 F.3d 1220. In Salmon
Spawning, an alliance of environmental organizations filed
suit against several agencies for failing to reinitiate Section 7
consultation after new information emerged about protected
salmon. Id. at 1224. Citing Lujan, we determined that,
because the plaintiffs had properly alleged a procedural harm,
the standards for causation and redressability were relaxed.
Id. at 1229 (citing Lujan, 504 U.S. at 572 n.7). We said that
“uncertain[ty about] whether reinitiation will ultimately
benefit the groups (for example, by resulting in a ‘jeopardy’
determination) does not undermine [the plaintiffs’] standing.”
Salmon Spawning, 545 F.3d at 1229. Thus, we concluded
that the alleged injury—“scientific, educational, aesthetic,
recreational, spiritual, conservation, economic, and business
interests” in the ongoing survival of the salmon, id. at 1225
(internal quotation marks omitted)—was “not too tenuously
connected to the agencies’ failure to reinitiate consultation,”
id. at 1229. Further, we determined that “a court order
requiring the agencies to reinitiate consultation would remedy
the harm asserted.” Id.

    As in Salmon Spawning, Cottonwood’s allegation of a
procedural injury relaxes its burden of showing causation and
redressability. See id. Cottonwood need not show that
reinitiation of Section 7 consultation would lead to a different
result at either the programmatic or project-specific level.
See id. Cottonwood’s declarations alleging aesthetic,
recreational, scientific, and spiritual injury are “not too
tenuously connected to [the Forest Service’s] failure to
reinitiate consultation” to establish standing. See id. A court
order reinitiating consultation on the Lynx Amendments
would adequately redress the alleged harm. See id.
18       COTTONWOOD ENVTL. LAW CTR. V. USFS

    In sum, we hold that the district court properly determined
that Cottonwood has standing to pursue its claim.

                        IV. Ripeness

    Rehashing many of its standing arguments, the Forest
Service argues that Cottonwood’s lawsuit is not ripe for
review until, and unless, Cottonwood challenges a particular
project that implements the Lynx Amendments. Further, the
Forest Service suggests that adjudication of Cottonwood’s
programmatic challenge at this point is improper because
future project-specific consultations might result in mitigation
or elimination of any potential harm to Cottonwood’s
members, thus rendering adjudication unnecessary. We
conclude, however, that Cottonwood’s lawsuit is ripe for
adjudication.

                              A.

    “The doctrine of ripeness prevents courts from becoming
involved in abstract questions which have not affected the
parties in a concrete way.” S. Cal. Edison Co. v. F.E.R.C.,
770 F.2d 779, 785 (9th Cir. 1985). To determine ripeness in
an agency context, we must consider:

       (1) whether delayed review would cause
       hardship to the plaintiffs; (2) whether judicial
       intervention would inappropriately interfere
       with further administrative action; and
       (3) whether the courts would benefit from
       further factual development of the issues
       presented.
         COTTONWOOD ENVTL. LAW CTR. V. USFS                    19

Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733
(1998); Ctr. for Biological Diversity v. U.S. Fish & Wildlife
Serv., 450 F.3d 930, 940 (9th Cir. 2006) (applying this test to
an ESA claim involving FWS). Judicial intervention does not
interfere with further administrative action when an agency’s
decision is “at an administrative resting place.” Citizens for
Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 977
(9th Cir. 2003). Further, no additional factual development
is necessary after a procedural injury has occurred. See Ohio
Forestry Ass’n, 523 U.S. at 737 (holding that a procedural
dispute is ripe “at the time the [procedural] failure takes
place”).

                               B.

    The Forest Service’s arguments rest on the false premise
that Cottonwood is pursuing a substantive ESA claim. As
explained above, Cottonwood does not argue for a particular
substantive result, but rather alleges that the Forest Service
failed to comply with the procedural requirements of the ESA
when it declined to reinitiate consultation. When a party such
as Cottonwood suffers a procedural injury, it “may complain
of that failure at the time the failure takes place, for the claim
can never get riper.” Id. at 737. The imminence of project-
specific implementation “is irrelevant to the ripeness of an
action raising a procedural injury.” Citizens for Better
Forestry, 341 F.3d at 977; see also Seattle Audubon Soc’y v.
Espy, 998 F.2d 699, 703 (9th Cir. 1993). Because the alleged
procedural violation—failure to reinitiate consultation—is
complete, so too is the factual development necessary to
adjudicate the case. See Kraayenbrink, 632 F.3d at 486.
Further, because the Forest Service is actively applying the
Lynx Amendments at the project-specific level, delayed
20       COTTONWOOD ENVTL. LAW CTR. V. USFS

review would cause hardship to Cottonwood and its
members.

    The Forest Service’s argument that judicial intervention
would preclude it from refining its policies and “adopting
additional protective measures” after conducting site-specific
analysis misses the point. The Forest Service has completed
the Lynx Amendments and refused to reinitiate Section 7
consultation after the 2009 revised critical habitat
designation. That decision is ripe for review because it is “at
an administrative resting place.” Citizens for Better Forestry,
341 F.3d at 977; see also Or. Natural Desert Ass’n v. U.S.
Forest Serv., 465 F.3d 977, 984 (9th Cir. 2006) (explaining
that a claim is ripe for review when it is not “merely tentative
or interlocutory,” but rather the agency “has rendered its last
word on the matter”) quoting Whitman v. Am. Trucking Ass’n,
531 U.S. 457, 478 (2001). Any “additional protective
measures” would apply only at the project-specific level, not
the programmatic level in dispute. There is thus no improper
interference with administrative action.

    Delayed review would cause Cottonwood and its
members further hardship. This dispute requires no
additional factual development because the procedural injury
has already occurred. Further, judicial intervention will not
interfere with further agency action because the agency’s
decision is at an administrative resting place. We therefore
hold that Cottonwood’s claim is ripe for review.

         V. Reinitiation of Section 7 consultation

    We turn to the merits of Cottonwood’s argument that the
Forest Service violated Section 7 of the ESA by failing to
reinitiate consultation on the Lynx Amendments when FWS
         COTTONWOOD ENVTL. LAW CTR. V. USFS                  21

designated critical habitat on National Forest land. The
Forest Service asserts that it had no remaining Section 7
obligations related to the Lynx Amendments “because the
Forest Service completed its action in 2007 when it made a
final decision to amend the [Forest Plans].” We disagree and
hold that the Forest Service must reinitiate consultation on the
Lynx Amendments.

                               A.

    Under Section 7(a)(2) of the ESA,

        [e]ach Federal agency shall, in consultation
        with and with the assistance of the Secretary
        [of Commerce or the Interior] insure that any
        action authorized, funded, or carried out by
        such agency . . . is not likely to jeopardize the
        continued existence of any endangered
        species or threatened species or result in the
        destruction or adverse modification of [the
        critical] habitat of such species . . . .

16 U.S.C. § 1536(a)(2). If it appears that an action may affect
an endangered or threatened species, the consulting agency
must provide a biological opinion to the action agency
explaining how the action “affects the species or its critical
habitat.” Id. § 1536(b)(3)(A). When a biological opinion
concludes that the action is likely to jeopardize an endangered
or threatened species, or adversely modify its habitat, then the
consulting agency must suggest “reasonable and prudent
alternatives.” Id. If the biological opinion concludes
otherwise, then the action is permitted to proceed.
22       COTTONWOOD ENVTL. LAW CTR. V. USFS

    The implementing regulations for the ESA define
“action” as “all activities or programs of any kind authorized,
funded, or carried out . . . by Federal agencies.” 50 C.F.R.
§ 402.02. The regulation lists, as examples, “actions intended
to conserve listed species or their habitat,” id. § 402.02(a),
and “actions directly or indirectly causing modifications to
the land, water, or air,” id. § 402.02(d). There is no dispute
that the adoption of the Lynx Amendments was an action that
required consultation and that the 2007 BiOp satisfied the
Forest Service’s initial Section 7 obligations. However, as
noted above, because FWS had decided not to designate any
National Forest land as critical habitat, the initial BiOp did
not address, or respond to, the impact of the Lynx
Amendments on designated critical habitat. The parties
disagree about whether the 2009 revised critical habitat
designation required reinitiation of Section 7 consultation on
the Lynx Amendments.

     The Forest Service argues that reinitiation was not
required because it had already promulgated the Lynx
Amendments and incorporated them into the Forest Plans
when the FWS released its revised critical habitat
designation. For support, the Forest Service relies on Norton
v. Southern Utah Wilderness Alliance, 542 U.S. 55, 73 (2004)
(“SUWA”). In SUWA, the Supreme Court considered whether
the National Environmental Policy Act of 1969 (“NEPA”),
42 U.S.C. §§ 4321–4370, required the U.S. Bureau of Land
Management (“BLM”) to supplement its environmental
review of a land use plan if significant new information
emerged after the plan was approved. Applying NEPA, the
Court explained that “supplementation is necessary only if
there remains ‘major Federal action’ to occur.” Id. at 73
(citing 42 U.S.C. § 4332 and 43 C.F.R. § 1601.0-6) (internal
quotation marks and alterations omitted). The Court
        COTTONWOOD ENVTL. LAW CTR. V. USFS                23

concluded that, because the land use plan was complete upon
approval, the BLM had no obligation to supplement its
environmental analysis.

    In analogizing to SUWA, the Forest Service ignores a key
difference between NEPA and the regulations governing
reinitiation of consultation under the ESA. The governing
ESA regulation states, in relevant part,

       [r]einitiation of formal consultation is
       required and shall be requested by the Federal
       agency or by the Service, where discretionary
       Federal involvement or control over the action
       has been retained or is authorized by law and:

       ...

            (b) If 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;

       . . . , or

           (d) If a new species is listed or critical
       habitat designated that may be affected by the
       identified action.
24         COTTONWOOD ENVTL. LAW CTR. V. USFS

50 C.F.R. § 402.16.11 Unlike the supplementation of
environmental review at issue in SUWA, an agency’s
responsibility to reinitiate consultation does not terminate
when the underlying action is complete. Stated another way,
there is nothing in the ESA or its implementing regulations
that limits reinitiation to situations where there is “ongoing
agency action.”12       The 2009 revised critical habitat
designation clearly meets the requirements of subsections (b)
and (d) above. See id. The determinative question, therefore,
is whether “discretionary Federal involvement or control over
the [Lynx Amendments] has been retained or is authorized by
law.” See id.

                                    B.

    In National Association of Home Builders v. Defenders of
Wildlife, the Supreme Court clarified that the regulatory
language limiting agencies’ Section 7 obligations to actions


 11
   The regulation governing reinitiation of consultation corresponds with
the regulation governing consultation, generally. 50 C.F.R. § 402.03
(“Section 7 and the requirements of this part apply to all actions in which
there is discretionary Federal involvement or control.”).
  12
     The parties vigorously debate whether our opinion in Pacific Rivers
Council v. Thomas, 30 F.3d 1050 (9th Cir. 1994) is still good law after
SUWA. In Pacific Rivers, we held that the Forest Service was required to
reinitiate consultation because Forest Plans are “ongoing agency action.”
Id. at 1053. We do not address the viability of Pacific Rivers’ reasoning
after SUWA because it is not determinative of whether the Forest Service
was required to reinitiate consultation. We certainly agree that where
there is “ongoing agency action,” an agency may be required to reinitiate
consultation. However, even if the agency action is complete and not
“ongoing,” the agency still may be required to reinitiate consultation if
there is “discretionary Federal involvement or control” over the completed
action.
         COTTONWOOD ENVTL. LAW CTR. V. USFS                 25

over which they maintain “discretionary Federal involvement
or control” is designed to avoid “impliedly repealing
nondiscretionary statutory mandates.” 551 U.S. 644, 665
(2007). Section 7 does not “attach to actions . . . that an
agency is required by statute to undertake,” because it could
lead to an “override” of other statutory authority. Id. at 669.
Similarly, “[i]n the case where a permit or license ha[s] been
granted, reinitiation would not be appropriate unless the
permitting or licensing agency retained jurisdiction over the
matter under the terms of the permit or license or as otherwise
authorized by law.” Interagency Cooperation—Endangered
Species Act of 1973, as Amended; Final Rule, 51 Fed. Reg.
19926-01, 19956 (June 3, 1986); see also Sierra Club v.
Babbitt, 65 F.3d 1502, 1509 (9th Cir. 1995) (holding that
there is not sufficient discretion to warrant Section 7
consultation where an agency lacks the ability to influence a
private action). In other words, if an agency has no discretion
to take any action that might benefit the threatened species,
Section 7 consultation would be “a meaningless exercise.”
Envtl. Prot. Info. Ctr. v. Simpson Timber Co., 255 F.3d 1073,
1085 (9th Cir. 2001) (“EPIC”) (Nelson, J. dissenting) (citing
Sierra Club, 65 F.3d at 1509); see also Jewell, 749 F.3d at
784 (“The agency lacks discretion only if another legal
obligation makes it impossible for the agency to exercise
discretion for the protected species’ benefit.”).

    Here, there is no “nondiscretionary statutory mandate[],”
see Home Builders, 551 U.S. at 665, nor “legal obligation,”
see Jewell, 749 F.3d at 784, at issue that is beyond the Forest
Service’s authority. Reinitiation of Section 7 consultation,
therefore, could yield important actionable information. The
Forest Service remains “involve[d]” in the Forest Plans, 50
C.F.R. § 402.16, because, as SUWA itself explained, agencies
make additional decisions after approval that implement land
26       COTTONWOOD ENVTL. LAW CTR. V. USFS

use plans at the site-specific level, see 542 U.S. at 69–70.
Further, the Forest Service retains exclusive “control,” 50
C.F.R. § 402.16, over its own Forest Plans throughout their
implementation. Indeed, we have repeatedly explained that
Forest Plans fall squarely within the “discretionary”
parameters of 50 C.F.R. §§ 402.03 and 402.16 because,
through the Forest Plans, the Forest Service retains a
“continuing ability . . . to control forest management projects
. . . .” Sierra Club, 65 F.3d at 1509; see also W. Watersheds
Project v. Matejko, 468 F.3d 1099, 1110 (9th Cir. 2006)
(explaining our holding in Pacific Rivers Council, 30 F.3d at
1053–54, that Section 7 applies to Forest Plans, because the
Forest Service “maintain[s] continuing authority”); EPIC,
255 F.3d at 1080.

                              C.

     This is not the first time since SUWA that we have
decided that an agency has obligations under Section 7 even
after the underlying action is complete. In Washington Toxics
Coalition v. Environmental Protection Agency, 413 F.3d 1024
(9th Cir. 2005), the Environmental Protection Agency
(“EPA”) argued that, because it had completed registration of
fifty-four pesticides pursuant to the Federal Insecticide,
Fungicide, and Rodenticide Act, 7 U.S.C. §§ 136 et seq., it
was not required to comply with Section 7. 413 F.3d at
1030–33. Rejecting that argument, we clarified that the
appropriate test is not whether the agency has completed its
action, but whether it retains regulatory authority over the
action. Id. at 1033. We concluded that “[b]ecause EPA has
continuing authority over pesticide regulation, it has a
continuing obligation to follow the requirements of the ESA.”
Id. We explained that it was EPA’s discretion to take actions
         COTTONWOOD ENVTL. LAW CTR. V. USFS                   27

that “inure to the benefit” of protected species that placed the
registrations within the ambit of Section 7. Id.

     As in Washington Toxics, it is irrelevant here whether the
process of incorporating the Lynx Amendments into the
Forest Plans was complete when FWS designated lynx
critical habitat on National Forest land. “Because [the Forest
Service] has continuing authority over [the Lynx
Amendments to the Forest Plans], it has a continuing
obligation to follow the requirements of the ESA.” See id.
The Forest Service’s “ongoing regulatory authority” provides
it “discretionary control to inure to the benefit of [the Canada
lynx].” See id. (internal quotation marks omitted). Indeed,
the Forest Service’s decision to voluntarily reinitiate
consultation in some forests, but not in others, demonstrates
that it retains discretion and authority over the Lynx
Amendments, and that it does not view reinitiation of
consultation as a meaningless exercise.

     Requiring reinitiation in these circumstances comports
with the ESA’s statutory command that agencies consult to
ensure the “continued existence” of listed species. 16 U.S.C.
§ 1536(a)(2), (4) (emphasis added). The Forest Service’s
position in this case would relegate the ESA—“the most
comprehensive legislation for the preservation of endangered
species ever enacted by any nation,” Tennessee Valley
Authority v. Hill, 437 U.S. 153, 180 (1978)—to a static law
that evaluates and responds to the impact of an action before
that action takes place, but does not provide for any further
evaluation or response when new information emerges that is
critical to the evaluation. Here, FWS discovered that its
decision on critical habitat had been tainted by an ethical
lapse in its own administrative ranks. Re-evaluation of the
data generated a drastically different result that justified vast
28       COTTONWOOD ENVTL. LAW CTR. V. USFS

designation of previously unprotected critical habitat. These
new protections triggered new obligations. The Forest
Service cannot evade its obligations by relying on an analysis
it completed before the protections were put in place.

    We hold that, pursuant to the ESA’s implementing
regulations, the Forest Service was required to reinitiate
consultation when the FWS designated critical habitat in
National Forests. We therefore affirm the district court ruling
on this issue.

                    VI. Injunctive relief

    In its cross-appeal, Cottonwood argues that the district
court erred when it declined to enjoin “those projects that
‘may affect’ critical habitat” until the agency has completed
the required Section 7 consultation. Cottonwood contends
that the court improperly required that it present evidence
showing a likelihood of irreparable injury. Cottonwood urges
the court to follow our nearly thirty-year-old precedent that
relieves plaintiffs of the traditional burden of establishing
irreparable harm when seeking injunctive relief to remedy a
procedural violation of the ESA. We affirm the district
court’s denial of injunctive relief but remand for further
proceedings.

                              A.

    Under “well-established principles of equity,” a plaintiff
seeking permanent injunctive relief must satisfy a four-factor
test by showing:

       (1) that it has suffered an irreparable injury;
       (2) that remedies available at law, such as
           COTTONWOOD ENVTL. LAW CTR. V. USFS                          29

         monetary damages, are inadequate to
         compensate for that injury; (3) that,
         considering the balance of hardships between
         the plaintiff and defendant, a remedy in equity
         is warranted; and (4) that the public interest
         would not be disserved by a permanent
         injunction.

eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391
(2006).

    Starting with Thomas v. Peterson, 753 F.2d 754, 764 (9th
Cir. 1985), we have long recognized an exception to the
traditional test for injunctive relief when addressing
procedural violations under the ESA. See also Wash. Toxics,
413 F.3d at 1035; Sierra Club v. Marsh, 816 F.2d 1376, 1384
(9th Cir. 1987). In Thomas, after holding that plaintiffs
established a procedural violation of the ESA, we addressed
the appropriate remedy. We looked to our case law under
NEPA, noting that “[t]he procedural requirements of the ESA
are analogous to those of NEPA. . . .” 753 F.2d at 764. We
then acknowledged in the NEPA context, we had held that
because “[i]rreparable damage is presumed to flow from a
failure properly to evaluate” environmental impacts of an
agency action, an injunction is typically the appropriate
remedy for a Section 7 violation.13 Id. (citing Save Our

 13
    In a subsequent case involving a Section 9 illegal take claim, National
Wildlife Federation v. Burlington Northern Railroad, we held that,
although the traditional test for injunctive relief does not apply in ESA
cases, “[t]he plaintiff must make a showing that a violation of the ESA is
at least likely in the future.” 23 F.3d 1508, 1511 (9th Cir. 1994). In that
case, it was undisputed that there had been a take of animals within an
endangered species, grizzly bears, but we affirmed the denial of injunctive
relief because there was insufficient evidence in the record that the
30        COTTONWOOD ENVTL. LAW CTR. V. USFS

Ecosystems v. Clark, 747 F.2d 1240, 1250 (9th Cir. 1984);
Friends of the Earth, Inc. v. Coleman, 518 F.2d 323, 330 (9th
Cir. 1975)). Critical to our discussion here was our holding
that “[w]e see no reason that the same principle should not
apply to procedural violations of the ESA.” Id. In so
holding, we explained that “[i]t is not the responsibility of the
plaintiffs to prove, nor the function of the courts to judge, the
effect of a proposed action on an endangered species when
proper procedures have not been followed.” Id. at 765.

    In 2005, we reiterated that “the appropriate remedy for
violations of the ESA consultation requirements is an
injunction pending compliance with the ESA.” Wash. Toxics,
413 F.3d at 1035. We acknowledged that some “non-
jeopardizing agency actions [may] continue during the
consultation process,” but stated that “the burden should be
on the agency [as] the entity that has violated its statutory
duty” to establish that the agency action is non-jeopardizing.
Id.

    The Forest Service argues that the Thomas presumption
of irreparable harm has been effectively overruled by two
recent Supreme Court cases addressing injunctive relief in the
context of NEPA: Winter v. Natural Resources Defense


defendant’s operations would result in a future take of bears. On the
surface, there is some tension between Burlington and Thomas, but there
is a fundamental difference between the two cases. Burlington involved
a discrete incident that resulted in a substantive violation of the ESA,
whereas Thomas involved a procedural violation. Addressing the
procedural aspects of the ESA, we stressed in Thomas that there is a
presumption of irreparable harm because “there can be no assurance that
a violation of the ESA’s substantive provisions will not result” from a
procedural failure under Section 7. 753 F.2d at 764. Notably, there was
no procedural violation at issue in Burlington.
         COTTONWOOD ENVTL. LAW CTR. V. USFS                 31

Council, Inc., 555 U.S. 7 (2008), and Monsanto Co. v.
Geertson Seed Farms, 561 U.S. 139 (2010). In Winter, the
Court rejected our test for preliminary injunctive relief in
NEPA cases as “too lenient.” 555 U.S. at 22. Our precedent
had allowed for granting a preliminary injunction upon a
showing that irreparable harm was a “possibility.” Id. The
Winter Court held that, even in NEPA cases, “plaintiffs
seeking preliminary relief [must] demonstrate that irreparable
injury is likely in the absence of an injunction.” Id. In
Monsanto, this time addressing permanent injunctive relief in
the context of NEPA, the Court disapproved of cases which
do not apply the traditional four-factor test and instead
“presume that an injunction is the proper remedy for a NEPA
violation except in unusual circumstances.” 561 U.S. at 157.
The Court explained that there is nothing in NEPA that
allows courts considering injunctive relief to put their “thumb
on the scales.” Id.

                              B.

    The central question here is whether Winter and
Monsanto’s analysis of injunctive relief under NEPA extends
to the ESA, or whether the differences between the two
statutes warrant a different test. The Supreme Court has
explained that

       Congress may intervene and guide or control
       the exercise of the courts’ discretion, but we
       do not lightly assume that Congress has
       intended to depart from established principles.
       Unless a statute in so many words, or by a
       necessary and inescapable inference, restricts
       the court’s jurisdiction in equity, the full
32       COTTONWOOD ENVTL. LAW CTR. V. USFS

        scope of that jurisdiction is to be recognized
        and applied.

Amoco Prod. Co. v. Village of Gambell, AK, 480 U.S. 531,
542 (1987) (“Amoco”) (internal quotation marks and
alterations omitted); see also eBay, 547 U.S. at 391–92
(rejecting a presumption in favor of injunctive relief because
“[n]othing in the Patent Act indicates that Congress intended
such a departure [from the traditional four-factor test]. To the
contrary, the Patent Act expressly provides that injunctions
‘may’ issue ‘in accordance with the principles of equity’”
(citing 35 U.S.C. § 283)). Therefore, we must look to the
underlying statute to determine whether the traditional test for
injunctive relief applies, or whether courts must apply a
different test.

      There is no question, as firmly recognized by the Supreme
Court, that the ESA strips courts of at least some of their
equitable discretion in determining whether injunctive relief
is warranted. Amoco, 480 U.S. at 543 n.9 (explaining that the
ESA “foreclose[s] the traditional discretion possessed by an
equity court”). Hill held that courts do not have discretion to
balance the parties’ competing interests in ESA cases because
Congress “afford[ed] first priority to the declared national
policy of saving endangered species.” 437 U.S. at 185. Hill
also held that Congress established an unparalleled public
interest in the “incalculable” value of preserving endangered
species. Id. at 187–88. It is the incalculability of the injury
that renders the “remedies available at law, such as monetary
damages . . . inadequate.” See eBay, 547 U.S. at 391; see also
Amoco, 480 U.S. at 545 (“Environmental injury, by its nature,
can seldom be adequately remedied by money damages
. . . .”); Cal. ex rel. Lockyer v. U.S. Dep’t of Agric., 575 F.3d
999 (9th Cir. 2009) (same). But, although Hill clarified that
          COTTONWOOD ENVTL. LAW CTR. V. USFS                        33

the “language, history, and structure” of the ESA, 437 U.S. at
174, remove several factors in the four-factor test from a
court’s equitable jurisdiction, Hill did not resolve whether
plaintiffs must establish irreparable injury. That factor was
not an issue in Hill because there was uncontroverted
scientific evidence that completion and operation of the
disputed project would “either eradicate the known
population of [the listed species] or destroy their critical
habitat.” Id. at 171.

    There is nothing in the ESA that explicitly, “or by a
necessary and inescapable inference,” restricts a court’s
discretion to decide whether a plaintiff has suffered
irreparable injury. See Amoco, 480 U.S. at 542 (internal
quotation marks omitted); 16 U.S.C. § 1540(g)(1)(A).
Although Congress altered the third and fourth prongs of the
traditional four-factor test for injunctive relief in ESA cases,
Hill, 437 U.S. at 185, 187, and the second is generally not at
issue in environmental cases, Amoco, 480 U.S. at 545, the
ESA does not allow courts to put their “thumb on the scales”
in evaluating the first prong, Monsanto, 561 U.S. at 157.
Thus, even though Winter and Monsanto address NEPA, not
the ESA, they nonetheless undermine the theoretical
foundation for our prior rulings on injunctive relief in Thomas
and its progeny. Indeed, Thomas’s reasoning explicitly relied
on the presumption of irreparable injury that we had
previously recognized in the NEPA context.14 Where

   14
       Cottonwood argues that since Winter and Monsanto we have
continued to apply Thomas’s presumption of irreparable harm, citing
Kraayenbrink, 632 F.3d at 500, and Wild Fish Conservancy v. Salazar,
628 F.3d 513, 533 (9th Cir. 2010). Although we determined in both cases
that the ESA procedural violation warranted injunctive relief pending
compliance with the ESA, we did so without discussing Winter and
Monsanto’s impact on Thomas’s presumption of irreparable harm.
34       COTTONWOOD ENVTL. LAW CTR. V. USFS

Supreme Court precedent “undercut[s] the theory or
reasoning underlying the prior circuit precedent in such a way
that the cases are clearly irreconcilable,” the prior circuit
precedent is no longer binding. Miller v. Gammie, 335 F.3d
889, 900 (9th Cir. 2003) (en banc). We must therefore
conclude that there is no presumption of irreparable injury
where there has been a procedural violation in ESA cases. A
plaintiff must show irreparable injury to justify injunctive
relief. In light of the stated purposes of the ESA in
conserving endangered and threatened species and the
ecosystems that support them, establishing irreparable injury
should not be an onerous task for plaintiffs. 16 U.S.C.
§ 1531.

                              C.

    The dissent worries that our opinion today will cause
“uncertainty” “as a global storm of extinction rages.” Dissent
at 40. The dissent overstates the significance of our holding.
First, our opinion does nothing to disturb the Supreme
Court’s holding in Hill that when evaluating a request for
injunctive relief to remedy an ESA procedural violation, the
equities and public interest factors always tip in favor of the
protected species. As the Court made unmistakably clear:
“Congress has spoken in the plainest of words, making it
abundantly clear that the balance has been struck in favor of
affording endangered species the highest of priorities, thereby
adopting a policy which it described as ‘institutionalized
caution.’” Hill, 437 U.S. at 194. That fundamental principle
remains intact and will continue to guide district courts when
confronted with requests for injunctive relief in ESA cases.

    Second, we do not dispute that the Thomas presumption
of irreparable harm virtually assures the grant of injunctive
         COTTONWOOD ENVTL. LAW CTR. V. USFS                   35

relief to remedy an ESA procedural violation. But that does
not mean that without the aid of such a presumption the
district courts will be at a disadvantage in remedying
procedural violations pending compliance with the ESA.
Indeed, as exemplified by several of the cases the dissent
cites, district courts are quite capable of identifying harm to
protected species, and in crafting an injunction to remedy the
precise harm. For instance, in South Yuba River Citizens
League v. National Marine Fisheries Service, the district
court, although acknowledging Thomas’s holding,
nonetheless held that the plaintiff “must show that irreparable
harm to the listed species will result from defendants’
violation of the ESA in the absence of each [protective]
measure plaintiffs request.” 804 F. Supp. 2d 1045, 1054
(E.D. Cal. 2011). The court proceeded to address the
evidence of harm and the relief requested, and granted an
injunction to address the harm established by the evidence.

    Similarly, in National Wildlife Federation v. National
Marine Fisheries Service, 839 F. Supp. 2d 1117, 1131 (D. Or.
2011), the plaintiffs moved the district court to order the
operators of the Federal Columbia River Power System to
maintain previously established spring and summer dam
spills along the Columbia River for the protection of
endangered salmon species. In ruling on the motion, the
court recognized our holding in Thomas, but did not stop
there. Instead, it proceeded to review the record and found
that without certain protective measures sought by the
plaintiffs, including the spills, the protected fish would suffer
irreparable harm. The court then granted injunctive relief to
address the specific harm.

    As these cases demonstrate, district courts will not be left
adrift without the benefit of Thomas’s presumption of
36        COTTONWOOD ENVTL. LAW CTR. V. USFS

irreparable harm. The purposes and objectives of the ESA, as
recognized in Hill, will continue to provide fundamental
direction to the district courts when confronted with a request
for injunctive relief to remedy a procedural violation of the
ESA. The presumption of irreparable harm, however, as
explained above, cannot survive the Court’s recent opinions
in Winter and Monsanto.

                              D.

    Although we acknowledge today that Thomas’s ruling on
injunctive relief is no longer good law, we recognize that it
has been the law of the circuit since 1985. Cottonwood
should not be faulted for relying on Thomas and its progeny
as a basis for injunctive relief. We therefore vacate the
district court’s denial of injunctive relief and remand on an
open record to allow Cottonwood an opportunity to make a
showing of irreparable injury.

                       VII. Conclusion

    We affirm the district court’s ruling that the Forest
Service violated Section 7 of the ESA when it failed to
reinitiate consultation after FWS designated critical habitat on
National Forest land. We also affirm the district court’s
denial of injunctive relief to Cottonwood. We remand,
however, to provide Cottonwood an opportunity to make an
evidentiary showing that specific projects will likely cause
irreparable damage to its members’ interests.

     AFFIRMED AND REMANDED.

     The parties shall bear their own costs on appeal.
         COTTONWOOD ENVTL. LAW CTR. V. USFS                37

PREGERSON, Circuit Judge, concurring in part and
dissenting in part:

    Respectfully, I dissent from Section VI of the majority
opinion which makes it harder to protect the threatened
Canada Lynx and its critical habitat, and puts the species at
increased risk. I do not agree with the majority that Thomas
v. Peterson, 753 F.2d 754 (9th Cir. 1985) (“Thomas”), should
be put into the shredder by inferring that Winter v. Natural
Resources Defense Council, Inc., 555 U.S. 7 (2008), and
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010),
implicitly “undermine the theoretical foundation for our prior
rulings on injunctive relief in Thomas and its progeny.” Maj.
op. at 33. I do not read Winter and Monsanto as casting a
dark shadow on the ESA’s legislative purpose and our Ninth
Circuit precedent. Winter and Monsanto are not “clearly
irreconcilable” with Thomas as required for a three-judge
panel to overturn settled Ninth Circuit case law. Miller v.
Gammie, 335 F.3d 889, 900 (9th Cir. 2003).

    Winter and Monsanto focus on NEPA’s—not the
ESA’s—standard for injunctive relief. Winter and Monsanto
do not address the ESA, which has a unique purpose and
history, and still shines as the “most comprehensive
legislation for the preservation of endangered species ever
enacted by any nation.” Babbitt v. Sweet Home Chapter of
Cmtys for a Great Oregon, 515 U.S. 687, 698 (1995).

    The Supreme Court has carefully considered the ESA’s
purpose and text in terms of a court’s equitable powers when
faced with an ESA violation. See TVA v. Hill, 437 U.S. 153,
173, 193–95 (1978) (finding that it was the plain intent of
Congress in enacting the ESA to halt and reverse the trend
towards species extinction, whatever the cost, and that an
38       COTTONWOOD ENVTL. LAW CTR. V. USFS

injunction was the appropriate remedy when a nearly-
completed, multimillion-dollar dam threatened an endangered
snail darter and its critical habitat).

    The Supreme Court examined congressional intent to
understand how Section 7 of the ESA affected the courts’
equitable powers. Id. at 183–84. Although the courts ensure
compliance with the ESA, as the Supreme Court noted,
“Congress had foreclosed the exercise of the usual discretion
possessed by a court of equity.” Weinberger v. Romero-
Barcelo, 456 U.S. 305, 313 (1982). Discussing Hill, the
Ninth Circuit has observed that “[courts] have no expert
knowledge on the subject of endangered species, much less
do [they] have a mandate from the people to strike a balance
of equities [against the interests of an endangered species].”
Sierra Club v. Marsh, 816 F.2d 1376, 1383 (9th Cir. 1987)
(internal citations omitted).

    The majority asserts that “the ESA does not allow courts
to put their thumb on the scales,” Maj. op. at 33. But, I
remain firmly convinced that “Congress has spoken in the
plainest of words, making it abundantly clear that the balance
has been struck in favor of affording endangered species the
highest of priorities . . . .” Sierra Club, 816 F.2d at 1383. I
agree with the Supreme Court that “[o]ne would be hard
pressed to find a statutory provision whose terms were any
plainer than [those of the ESA].” Romero-Barcelo, 456 U.S
at 313 (citing Hill, U.S. 437 at 173).

    The ESA commands federal agencies to “insure that any
action authorized, funded, or carried out by [them] is not
likely to jeopardize the continued existence of any
endangered species or threatened species or result in the
destruction or adverse modification of habitat of such species
         COTTONWOOD ENVTL. LAW CTR. V. USFS                39

. . . .” 16 U.S.C.A. § 1536. “The purpose and language of the
statute under consideration in Hill, not the bare fact of a
statutory violation, compel[ an injunction in the face of an
ESA violation that threatens critical habitat].” Romero-
Barcelo, 456 U.S. at 314. “In Congress’s view, projects that
jeopardized the continued existence of endangered species
threatened incalculable harm: accordingly, it decided that the
balance of hardships and the public interest tip heavily in
favor of endangered species.” Sierra Club, 816 F.2d at 1383.
Contrary to the majority, I agree with Ninth Circuit precedent
holding that “[w]e may not use equity’s scales to strike a
different balance.” Id.

    The majority’s analogy between NEPA and the ESA fails
to appreciate the critical difference between these statutes.
The ESA’s statutory goal is to substantively provide for the
conservation of endangered and threatened species and their
ecosystems, 16 U.S.C.A. § 1531(b); whereas NEPA’s
statutory goals are fundamentally procedural, and designed to
create an environmental policy process that promotes the
nation’s general welfare. 42 U.S.C. § 4331; see Winter,
555 U.S. at 23 (remarking that “NEPA itself does not
mandate particular results. Instead, NEPA imposes only
procedural requirements to ensure that the agency, in
reaching its decision, will have available, and will carefully
consider, detailed information concerning significant
environmental impacts.” (internal citation and quotation
marks omitted)).

    The substantive purpose of the ESA, conserving
endangered and threatened species and their ecosystems,
justifies more protective processes than NEPA’s purpose,
ensuring decision-makers have and consider all important
information on environmental impacts. See Thomas,
40       COTTONWOOD ENVTL. LAW CTR. V. USFS

753 F.2d at 764 (“If anything, the strict substantive provisions
of the ESA justify more stringent enforcement of its
procedural requirements, because the procedural requirements
are designed to ensure compliance with the substantive
provisions.”).

    It is important to note that the majority opinion eliminates
Thomas’s procedural protections as a global storm of
extinction rages. See S.L Pimms et al., The Biodiversity of
Species and Their Rates of Extinction, Distribution, and
Protection, 344 Science 1246752 (2014) (concluding that
rates of extinction today are approximately 1,000 times the
rate of extinction absent human action); Elizabeth Kolbert,
The Sixth Extinction: An Unnatural History (2014). The
uncertainty resulting from the majority opinion bodes ill for
endangered species and the public.

    A number of species at risk of extinction have been
protected by Thomas’s holding, both in the Ninth Circuit and
elsewhere. See, e.g., S. Yuba River Citizens League v. Nat’l
Marine Fisheries Serv., 804 F. Supp. 2d 1045, 1055 (E.D.
Cal. 2011) (protecting Chinook salmon, Central Valley
Steelhead, and green sturgeon); Ctr. for Biological Diversity
v. U.S. Forest Serv., 820 F. Supp. 2d 1029, 1038 (D. Ariz.
2011) (protecting the Mexican spotted owl and New Mexico
ridge-nosed rattlesnake); Nat’l Wildlife Fed’n v. Nat’l Marine
Fisheries Serv., 839 F. Supp. 2d 1117, 1131 (D. Or. 2011)
(protecting several endangered species of salmon, including
Chum, Chinook, Sockeye, and Coho salmon); Ctr. for
Biological Diversity v. Bureau of Land Mgmt., No. C 03-
05509 SI, 2004 WL 3030209, at *6 (N.D. Cal. Dec. 30, 2004)
(protecting the Mojave desert tortoise); Pac. Coast Fed’n of
Fishermen’s Ass’ns v. U.S. Bureau of Reclamation, 138 F.
Supp. 2d 1228, 1248 (N.D. Cal. 2001) (protecting the
         COTTONWOOD ENVTL. LAW CTR. V. USFS                    41

shortnose sucker and the Lost River sucker); Greenpeace v.
Nat’l Marine Fisheries Serv., 106 F. Supp. 2d 1066, 1073
(W.D. Wash. 2000) (protecting the Stellar sea lion);
Greenpeace Found. v. Mineta, 122 F. Supp. 2d 1123, 1137
(D. Haw. 2000) (protecting the Hawaiian monk seal); Florida
Key Deer v. Brown, 386 F. Supp. 2d 1281, 1291 (S.D. Fla.
2005), aff’d sub nom. Florida Key Deer v. Paulison, 522 F.3d
1133 (11th Cir. 2008) (protecting the Key Largo cotton
mouse, Key Deer, Key Largo woodrat, Lower Keys marsh
rabbit, Schaus’ swallowtail butterfly, silver rice rat, Stock
Island tree snail, and Key tree-cactus).

    Section VI of the majority opinion states that “[i]n light
of the stated purposes of the ESA . . .[,] establishing
irreparable injury should not be an onerous task for
plaintiffs.” Maj. op. at 34. This may prove more difficult in
practice than the majority assumes.

    The majority opinion points to Nat’l Wildlife Fed’n v.
Nat’l Marine Fisheries Serv., 839 F. Supp. 2d 1117 (D. Or.
2011), where a district court seemingly easily identified
irreparable harm to endangered salmon species, to
demonstrate that district courts will have no difficulty
determining the existence of irreparable harm to a species and
tailoring injunctions accordingly. Maj. op. at 35–36.
Notably, the majority opinion fails to discuss the decades of
scientific analysis needed for the district court to identify that
harm, beginning with the 1991 listing of the Snake River
sockeye salmon as an endangered species under the ESA.
See, e.g., Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv.,
2005 WL 1278878, at *22–32 (D. Or. May 26, 2005) (listing
some of the scientific sources considered by the District
Court of Oregon during National Wildlife Federation’s years
of protracted litigation)). A full review of the “Columbia
42         COTTONWOOD ENVTL. LAW CTR. V. USFS

basin salmon saga” demonstrates that the district court’s
decades-long efforts to analyze the evidence of irreparable
harm has resulted in judicial frustration and “status quo dam
operations [that] largely continue to inflict high salmon
mortalities” even “over two decades after a determination that
more than a dozen species of Pacific salmonids require ESA
protection.” Michael C. Blumm & Aurora Paulsen, The Role
of the Judge in ESA Implementation: District Judge James
Redden and the Columbia Basin Salmon Saga, 32 Stan. Envtl.
L.J. 87, 148 (2013) (examining a “paradigmatic example of
the limits of judicial review to effectuate real improvements
in complex natural resources cases” despite active managerial
efforts by the district court).

    The outcome of National Wildlife Federation is a good
example justifying Thomas’s holding that an injunction to
protect endangered species and their critical habitat must
come first.1 Thomas’s holding remains one of the best



 1
   The majority opinion also discusses South Yuba River Citizens League,
804 F. Supp. 2d 1045, another ESA case involving the effect of dams on
endangered salmon and other fish species, to demonstrate the ability of a
district court to “address the evidence of harm and the relief requested,
and grant[] an injunction to address the harm established by the evidence.”
Maj. op. at 35.

     But a careful reading of South Yuba River finds that Thomas provided
a critical function in that case, offering the district court a solid foundation
for an injunction even when the “data and analysis necessary to determine
what measures, precisely, are needed in order to avoid jeopardizing the
listed species [were not provided by the government.]” 804 F. Supp. 2d
at 1055. Lacking this necessary information, the district court was able to
“err on the side of a more protective injunction,” relying, in part, on
Thomas’s holding that, had plaintiffs sought such a remedy, the court
could “enjoin the new project entirely.” Id.
        COTTONWOOD ENVTL. LAW CTR. V. USFS              43

guarantors of positive outcomes for threatened and
endangered species.

   Because I would follow settled precedent and protect the
Canada Lynx and its critical habitat first, I would apply
Thomas v. Peterson rather than finding it to be implicitly
overturned as the majority does. Thus, I would grant
Appellant’s request for an injunction pending compliance
with the ESA’s Section 7 consultation requirements.
