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NO PRELIMINARY INJUNCTION OF THE PANOCHE VALLEY SOLAR PROJECT

Wednesday, September 7th, 2016

In Defenders of Wildlife v. United States Fish & Wildlife Service, 2016 U.S. Dist. LEXIS 109509, the Northern District of California refused to preliminarily enjoin Panoche Valley Solar (PVS) from constructing a 247-megawatt solar facility comprised of approximately 1,529 acres of photovoltaic panels installed on a 2,154-acre site in the Panoche Valley in San Benito County.

The Panoche Valley is home to a variety of endangered species, such as the blunt-nosed leopard lizard, the San Joaquin kit fox, and the giant kangaroo rat.  Each of these species has been in decline due to loss of habitat or fragmentation of existing habitat.  The giant kangaroo rat, for example, survives in less than five percent of its historic geographic range.

In early 2016, the U.S. Fish and Wildlife Service (FWS) issued a biological opinion (BO) under the Endangered Species Act, concluding that the project would not likely jeopardize the survival and recovery of any of the species identified above.  Accordingly, FWS issued an incidental take statement, which authorized limited take of the listed species during the project construction, operation, and maintenance for the life of the project.

While the BO acknowledged that the solar facility would permanently impact 1,688 acres of habitat and temporarily impact 466 acres of habitat, such impacts were minimized by conditions to reduce the anticipated take.  Conditions included designing the project to avoid areas with high densities of listed species, monitoring construction work by FWS-approved biologists, relocating species to nearby habitat, and preserving and managing conservation land for the species covered by the incidental take statement.

Based on the BO, the U.S. Army Corps of Engineers issued a Section 404 permit pursuant to the Clean Water Act, authorizing PVS to discharge dredged or fill material into 0.121 acres of waters of the United States.

Both the BO and the Section 404 permit were challenged in federal court by the Defenders of Wildlife, Sierra Club, and the Santa Clara Valley Audubon Society. After finding it was unlikely that plaintiffs would succeed on the merits, the Court denied their request for a preliminary injunction. This decision allows PVS to rely on the BO and Section 404 permit while the matter is litigated.

NINTH CIRCUIT COURT OF APPEALS AFFIRMS BLM’S PROPOSAL TO EXPAND ACCESS FOR OFF-ROAD VEHICLES IN IMPERIAL SAND DUNES SPECIAL RECREATION MANAGEMENT AREA

Thursday, September 1st, 2016

In Imperial County, just north of the Mexican border, lies the Imperial Sand Dunes Planning Area, a 227,000-acre tract of desert, of which 214,930 acres is managed by the Bureau of Land Management (BLM). This swath of land is home to the Algodones Dunes, the largest active sand dune system in the United States. A 138,111-acre portion of the Planning Area, designated as the Imperial Sand Dunes Special Recreation Management Area (Dunes), is set aside for the protection of plants and wildlife, as well as for outdoor recreation. The Dunes attract over one million visitors annually, especially off-road vehicle enthusiasts. In Center for Biological Diversity v. Bureau of Land Management, 2016 U.S. App. LEXIS 14949, the Ninth Circuit Court of Appeals reviewed BLM’s proposal to expand access for off-road vehicle recreation in the Dunes (Proposal).

Center for Biological Diversity (CBD) contended that the plain language of the Endangered Species Act requires an Incidental Take Statement for threatened plants, rather than just fish and wildlife. In reviewing an agency’s interpretation of a statute it is charged with administering, the Court applied the two-step statute interpretation framework set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984) 467 U.S. 837 (Chevron): (1) whether Congress has spoken on the issue in the statute; and (2) if the statute is ambiguous with respect to the issue, whether the agency’s interpretation is reasonable. The Court determined that the Endangered Species Act on its face does not require Biological Opinions to contain Incidental Take Statements for threatened or endangered plants.  The Court did not proceed to the second step of the Chevron test, but it noted that its reading of the Endangered Species Act was consistent with the USFWS’ longstanding interpretation of the Incidental Take provision.

CBD also claimed that BLM’s conclusion that implementation of its Proposal would not increase ozone emissions was arbitrary and capricious and violated the Clean Air Act, the Federal Land Policy and Management Act, the National Environmental Policy Act, and the Administrative Procedure Act. Specifically, CBD took issue with BLM’s assumptions regarding the number of individuals who will visit the Dunes and how an average visitor will spend their time. The Court noted that BLM’s assumptions were entitled to deference so long as they are supported by “substantial evidence,” and found that the administrative record demonstrated that BLM “considered the relevant factors and articulated a rational connection between the facts found and the choices made.” Accordingly, the Court concluded that CBD had failed to demonstrate that BLM’s emissions analysis was arbitrary and capricious under this deferential standard.

Key Point: The Endangered Species Act does not require an Incidental Take Statement for threatened or endangered plants.

NINTH CIRCUIT UPHOLDS 187,000 SQUARE-MILE CRITICAL HABITAT DESIGNATION FOR POLAR BEARS IN ALASKA

Wednesday, March 23rd, 2016

In Alaska Oil & Gas Association v. Jewell, 2016 U.S. App. LEXIS 3624, the Ninth Circuit reversed the district court and upheld the Fish and Wildlife Service’s (“FWS”) final rule designating 187,000 square-miles as critical habitat to protect threatened polar bears as required by the Endangered Species Act (“ESA”).

Under the ESA, FWS is required to designate “critical habitat” for threatened species. Critical habitat is defined as areas that contain physical and biological features—also known as “primary constituent elements” or PCEs—that are essential to the conservation of the species. The benefits of protection must then be weighed against economic, national security, and other relevant impacts before a designation is made. Of the 187,000 square-miles FWS designated as habitat, 95.9% is comprised of sea ice and the remaining land consists of terrestrial habitat on Alaska’s northern coast and barrier islands. While polar bears spend the majority of their lives on sea ice, FWS determined that terrestrial land was also essential to polar bear conservation because female polar bears will occasionally come ashore to den and acclimate their cubs. After balancing these conservation concerns with other factors, FWS excluded two Native villages as well as all man-made structures from the designation, but chose to include a one-mile “no disturbance zone” around each barrier island.

Only the terrestrial habitat designation was challenged by the Alaska Oil and Gas Association, the American Petroleum Institute, oil and gas trade associations, the State of Alaska, and numerous Native American groups, who argued that the designation was arbitrary and capricious under the Administrative Procedure Act and violated the ESA. Three environmental groups then intervened on behalf of FWS. The district court granted summary judgment to the plaintiffs on two of their claims and vacated the entire designation.

On the first claim, the district court held that the terrestrial habitat designations were improper because FWS failed to show that polar bears actually denned in these areas. The Ninth Circuit disagreed, holding that there is no such requirement in the ESA. The Ninth Circuit reasoned that imposing a requirement of actual species presence would run counter to the ESA’s goal of species recovery which requires expanding habitat beyond what is currently utilized. In reaching its conclusion that the designations were proper, the Court found that FWS utilized the best available scientific data to justify its designations on the northern coast and barrier island habitats.

On the second claim, the district court held that FWS had provided the State of Alaska with inadequate “written justification” for adopting a final rule that was inconsistent with the State’s recommendations in violation of ESA Section 4(i). The Ninth Circuit followed D.C. Circuit precedent and held that the requirements in Section 4(i) are procedural and courts cannot review the substance of the written response. Therefore, the Ninth Circuit overturned the district court and held that FWS fulfilled its limited statutory duty by sending a written response to the State.

Finally, the Ninth Circuit denied plaintiffs’ cross-appeal, upholding the district court’s ruling on plaintiffs’ remaining claims. The case was remanded and the district court was ordered to enter judgment in favor of FWS.

Key Point:

The Endangered Species Act provides wide discretion to the United States Fish and Wildlife Service in designating critical habitat for endangered or threatened species. Critical habitat designations should be made based on the habitat’s physical and biological features; no evidence of actual presence in the area is required.

9th Circuit Holds ESA Does not Compel Use of Any Specific Methodology in “Balancing of Benefits” When Designating Critical Habitat

Wednesday, July 22nd, 2015

In 2005, the National Marine Fisheries Service (NMFS) designated the Green Sturgeon as a threatened species under the Endangered Species Act (ESA). When a species is considered threatened, under ESA, agencies are required to designate critical habitat for that species. Critical habitat is land that is essential to the conservation of the species and may require special management considerations or protections. In determining whether or not to exclude an area from critical habitat ESA says an agency “may exclude any area from critical habitat if [it] determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat.” (16 U.S.C. § 1533(b)(2).) In 2010, NMFS designated over 11,000 square miles of marine habitat, 897 square miles of estuary habitat, and riverine habitat as critical habitat for the Green Sturgeon.

Following the designation, the Building Industry Association of the Bay Area and Bay Planning Coalition (collectively BIABA) sued. The court granted summary judgment in favor of NMFS. It stated that NMFS had a nondiscretionary duty to consider the economic impact of all critical habitat designations, but was not required to use any particular methodology, NMFS had complied with that duty, and NMFS’s decision not to exclude areas was not reviewable. BIABA appealed, and, in Bldg. Industry Assn. of the Bay Area v. U.S. Dept. of Commerce (9th Cir., July 7, 2015, No. 13-15132) __ F.3d __ (2015 U.S.App.LEXIS 11645), the Ninth Circuit affirmed the district court’s decision in its entirety.

First, the Ninth Circuit held ESA did not require NMFS to follow a specific methodology when designative critical habitat. ESA Section 4(b)(2) provides:

The Secretary shall designate critical habitat… on the basis of the best scientific data available and after taking into consideration the economic impact… The Secretary may exclude any area from critical habitat if he determines that the benefits of exclusion outweigh the benefits of specifying such area as part of critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such an area as critical habitat will result in the extinction of the species concerned.

16 U.S.C. § 1533(b)(2).

BIABA asserted that this section requires the agency to assess whether the economic benefits of excluding an area from designation outweigh the conservation benefits of including the area. The court was not convinced. The court stressed that the word “may” in the statute suggested that the agency has discretion in whether or not to balance economic benefits. NMFS’s interpretation was reasonable given the statute’s language, and the court was required to defer to NMFS’s interpretation.

BIABA also argued that NMFS violated ESA because it did not consider the economic impacts in all of the areas considered for designation, but only those that were considered high risk. The court said this approach was within NMFS’s powers because the Green Sturgeon was unlikely to survive without these high risk areas, and NMFS was only statutorily required to designate an area if extinction of the species would otherwise occur.

Finally, BIABA argued the district court incorrectly held decisions by NMFS not to exclude areas are not reviewable by courts. The court disagreed. Section 4(b)(2) explains that the decision to exclude areas from designation is always completely discretionary, and in no circumstance is exclusion required under section 4(b)(2). The court held there is no basis under section 4(b)(2) for reviewing the decision not to exclude areas from designation, so there is no basis for reviewing BIABA’s claim.

Key Point

ESA Section 4(b)(2) does not require agencies to follow a specific balancing-of-benefits methodology. Section 4(b)(2) is a discretionary process through which agencies include or exclude areas for designation. An agency’s decision not to e

In Plurality Opinion, Ninth Circuit Holds Traditional Four-Factor Test for Granting Injunctive Relief Applies in ESA Litigation

Monday, July 6th, 2015

The dispute in Cottonwood Environmental Law Center v. U.S. Forest Service, 2015 U.S. App. LEXIS 10176 (Cottonwood), involved the ongoing battle over Federal protection of the Canada Lynx. In 2000, the Canada Lynx was listed as a threatened species under the Endangered Species Act (ESA). Six years later, the Fish and Wildlife Service (FWS) designated 1,841 square miles as critical habitat for the Canada Lynx, but did not designate any National Forest lands. Soon after, the Forest Service adopted the Northern Rocky Mountains Lynx Management Direction (Lynx Amendments), setting permitting standards on activities that affect the Canada Lynx, and completed Section 7 consultation with FWS.

In 2009, FWS revised its critical habitat designation to 39,000 square miles. 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. In 2012, The Cottonwood Environmental Law Center (Cottonwood) sued claiming the Forest Service violated ESA by failing to reinitiate consultation. The trial court granted summary judgement in favor of Cottonwood, but refused to enjoin any related projects. Both Cottonwood and the Forest Service appealed.

On appeal, the Ninth Circuit considered whether Cottonwood had standing to bring the case, whether the issue was ripe for the courts, whether the Forest Service violated ESA section 7 by failing to reinitiate consultation on the Lynx Amendments with FWS, and whether an injunction was an appropriate remedy.

The Ninth Circuit first held that Cottonwood had standing to bring the programmatic challenge. The Forest Service argued that Cottonwood did not have standing because they challenged the Forest Service’s failure to reinitiate consultation, rather than any particular action that directly caused injury. The court disagreed, stating Cottonwood had shown particularized harm because their declarations established that their members used the National Forests for viewing, enjoying, and studying the Canada Lynx. The declarations also established a necessary “geographic nexus between the individual[s] asserting the claim and the location suffering an environmental impact.” (See W. Watershed Project v. Kraayenbrink (9th Cir. 2011) 632 F.3d. 472, 485.)

The court also noted that this was not the first time the Ninth Circuit found a plaintiff alleging a programmatic challenge had standing. A procedural injury exists after a Forest Plan is adopted, as long the plan is traceable to an action that affects the plaintiff’s interests. Uncertainty about whether reinitiating the consultation will benefit the plaintiff or not has no bearing on the plaintiff’s standing.

The Ninth Circuit next held the case was ripe for review. The Forest Service argued the issue was not ripe until a specific project was challenged. The court disagreed because Cottonwood had not sought any sort of substantive result, but had brought suit in order to enforce a procedural violation under Section 7.

Turning to the merits, the Ninth Circuit held the Forest Service violated Section 7 by failing to reinitiate consultation. The Forest Service argued that it did not have to reinitiate consultation because it already promulgated the Lynx Amendments and incorporated them into the Forest Plan before the FWS released the revised critical habitat designation. But, the court pointed out that nothing in ESA or its implementing regulations limits reinitiation of consultation to where there is ongoing agency action. The ESA implementing regulations require reinitiation of formal consultation “where 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.” (50 C.F.R. § 404.16.)

The court reasoned that reinitiation of Section 7 consultation “could yield important actionable information.” FWS’s re-evaluation of the data generated a drastically different result that justified vast designation of previously unprotected critical habitat. These new protections triggered new obligations the Forest Service could not evade by relying on an analysis it completed before the protections were in place.

Finally, in a plurality ruling, the Ninth Circuit held that in the context of granting injunctive relief, the court’s nearly three-decade old holding that there is a presumption of irreparable injury where there has been a procedural violation in ESA cases is no longer good law.

The majority agreed with the Forest Service that the presumption of irreparable harm has been overruled by two decisions on the National Environmental Policy Act (NEPA). Like ESA, NEPA traditionally presumed environmental damage, warranting an injunction. But, in Winter v. Natural Resources Defense Council, Inc. (2008) 555 U.S. 7, 22 (Winter), the Supreme Court ruled that this test for injunctions under NEPA was too lenient. Additionally, in Monsanto Co. v. Geerston Farms (2010) 561 U.S. 139, 157 (Monsanto), the Supreme Court disapproved of cases that did not use a traditional four-factor test for injunctions.

Here, the court reasoned that, “[w]hen Supreme Court precedent undercuts 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.” (Cottonwood, supra, 2015 U.S. App. LEXIS 10176, *13 [Citation.].)

Judge Pregerson dissented to the court’s decision on the injunction. He reasoned that Winter and Monsanto were decisions under NEPA and not ESA. He argued that existing Supreme Court precedent favored the current standard for inunctions under ESA, and the majority’s ruling undermined the substantive purpose of ESA, conserving threatened species and ecosystems.

Key Point

Thomas v. Peterson, 753 F.2d 754, 764 (9th Cir. 1985), which established an exception to the traditional test for injunctive relief when addressing procedural violations under the ESA and created a presumption of irreparable harm has been effectively overruled by two recent Supreme Court cases, Winter and Monsanto, addressing injunctive relief in the context of NEPA.  The traditional four-factor test for granting injunctive relief applies in both ESA and NEPA litigation.

Oil Spill Response Plan Does Not Require Endangered Species Act Consultation or Environmental Impact Statement

Tuesday, June 23rd, 2015

In Alaska Wilderness League v. Sally Jewell, 2015 U.S. App. LEXIS 9755, a coalition of environmental groups sued various administrative agencies following their approval of Shell Gulf of Mexico, Inc.’s (Shell’s) Oil Spill Response Plans (OSRPs) for their planned oil rigs in Alaska’s arctic coast.

OSRPs are mandated under a combination of both the Clean Water Act and Outer Continental Shelf Lands Act (OCSLA). OCSLA creates a four-step process for exploring and developing off-shore oil and natural gas resources. Notably, the third step requires applicants to submit an exploration plan for secretary approval along with an OSRP, which is required under the Clean Water Act.

The Clean Water Act provides the framework under which an OSRP must be prepared, including a requirement that the Bureau of Safety and Environmental Enforcement (BSEE) promulgate regulations requiring owners and operators of offshore facilities to submit an OSRP “for responding, to the maximum extent practicable, to a worst case discharge… of oil or a hazardous substance.” (33 U.S.C. § 1321, subd. (j)(5)(A)(i).) Under the Clean Water Act’s Compliance requirements, BSEE must then promptly review these plans, require amendments to any plan that does not meet the statutory requirements, and “shall” approve any plan that meets those requirements.

Here, the plaintiffs alleged that the BSEE unlawfully approved two of Shell’s OSRPs. Shell intervened and both sides filed for summary judgment. The district court granted summary judgment in favor of the defendants, and the plaintiffs appealed. On appeal, the plaintiffs argued: (1) BSEE’s OSRP approval was arbitrary and capricious under the Administrative Procedure Act (APA); (2) BSEE should have engaged in Endangered Species Act (ESA) consultation before approving the OSRPs; and (3) the OSRPs were subject to review under the National Environmental Protection Act (NEPA) before the agencies could approve them. The Ninth Circuit Court of Appeals (Court) disagreed, affirming the lower court’s decision in its entirety.

First, the plaintiffs argued BSEE’s OSRP approval was arbitrary and capricious under the Administrative Procedure act. They argued Shell assumed a 90 to 95 percent recovery rate in a worst case discharge event, and that recovery rate was unrealistic and unsupported. The court disagreed, finding that Shell claimed 10 percent of the oil would drive toward the mainland, not that all but 10 percent would be recovered. The court also found that Shell had the capacity to store up to 95 percent of the worst case scenario discharge volume, not that it would actually be able to collect that much.

Next, the plaintiffs argued BSEE should have engaged in ESA consultation before approving the OSRPs, since ESA section 7. The statute provides that BSEE “shall… approve any plan that meets the requirements” of the statute.  (32 U.S.C. § 1321 subd. (j)(5)(E).) Pursuant to this requirement, BSEE claimed it lacked discretion to consider factors apart from the delineated statutory criteria and, as a result, ESA consultation was unnecessary.  While the court concluded the statutory requirements applicable to OSRPs were ambiguous, the court deferred to BSEE’s reasonable interpretation.  Thus, the court rejected the plaintiff’s ESA consultation argument.  Lastly, the plaintiffs argued that BSEE violated NEPA because they failed to prepare an Environmental Impact Study (EIS) before approving the OSRPs. NEPA is subject to a “rule of reason” that frees agencies from preparing an EIS on actions they cannot refuse to perform. When an agency cannot prevent a certain effect due to its limited statutory authority over the action, the agency does not need to consider the environmental effects arising from that action. Here, since the court held BSEE had no discretion in approving or disapproving the OSRPs, the OSRPs did not require an EIS.

Justice D.W. Nelson dissented . Justice Nelson acknowledged that “[t]here is no point in consulting if the agency has no choices.” (Ctr. For Food Safety v. Vilsak (2013) 718 F.3d 829, 841.) However, Justice Nelson interpreted BSEE’s regulations and implementing statutes as providing BSEE with choices that allowed it to influence a private activity to benefit an endangered species.  Therefore, Justice Nelson concluded BSEE’s action to approve an OSRP was discretionary and triggered ESA consultation.

Justice Nelson also concluded BSEE was required to prepare an EIS under NEPA. She argued BSEE had the necessary authority to trigger NEPA review because the Oil Pollution Act grants them significant authority to regulate offshore facilities and directs BSEE to consider environmental factors in its decision making process.

Key Point

The approval of Oil Spill Response Plans by the Bureau of Safety and Environmental Enforcement is a nondiscretionary action that does not trigger Endangered Species Act consultation or necessitate an Environmental Impact Statement under NEPA.

Northern District of California Vacates Incidental Take Permits, Biological Opinion, and Environmental Impact Statement, but Refuses to Grant Injunctive Relief

Monday, June 15th, 2015

In Klamath-Siskiyou Wildlands Ctr. v. Nat’l Oceanic & Atmospheric Admin., 2015 U.S. Dist. LEXIS 70622, the Northern District of California vacated two Incidental Take Permits (ITPs), an Environmental Impact Statement (EIS), and a biological opinion, but refused to enjoin the defendants from pursuing their project. The matter involved two ITPs that the Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) granted to Fruit Growers.

Plaintiffs challenged a 50-year ITP to take northern spotted owls, granted by FWS, and a 50-year ITP to take to take coho salmon, granted by NMFS. In preparing the ITPs, the agencies and Fruit Growers prepared an EIS, and both agencies prepared biological opinions. Both biological opinions concluded that neither species was jeopardized nor was their habitat adversely affected by the grant of the permits.

The court vacated the agencies’ decisions to grant the ITPs because the court held: (1) FWS violated ESA by factoring the conservation efforts of non-permit applicant U.S. Forest Service into its § 10 analysis of Fruit Growers’ mitigation efforts; (2) NMFS arbitrarily and capriciously issued an ITP to Fruit Growers to take coho salmon; and (3) the agencies failed to conduct a cumulative impact analysis on Fruit Growers’ timber harvest projects, use of herbicides, and water withdrawal projects.

While the court acknowledged that the EIS included conservation measures that may benefit the species, the court rejected the agencies’ argument that these benefits outweighed the deficiencies in the in the agencies’ ITPs, EIS, and biological opinion.  The court also rejected the argument that the potential level of harm Fruit Growers and the surrounding community faced did not rise to the level of concrete harm necessary to prevent vacatur.

Nevertheless, the court rejected plaintiffs request for injunction relief.  Injunctive relief is an “extraordinary remedy” that is often avoided if a less drastic remedy can redress the situation. Monsanto Co. v. Geertson Seed Farms (2010) 561 U.S. 139, 165-166. But, when injury to the environment is sufficiently likely, the balance of harms favors the injunction to protect the environment. Amoco Prod. Co. v. Will. of Gambell (1987) 480 U.S. 531, 545. Even with this lower bar for environmental protection injunctions, the court still refused the injunction because the court held plaintiffs had not sufficiently shown that the northern spotted owl’s continued existence was jeopardized if logging continued.

Ninth Circuit Reverses District Court and Upholds Biological Opinion Protecting Endangered Species in the Delta . . . Again

Thursday, January 29th, 2015

In San Luis & Delta-Mendota Water Authority v. Locke, 2014 U.S. App. LEXIS 24351, the Ninth Circuit reversed the district court and upheld a National Marine Fisheries Service’s (NMFS) biological opinion that determined continuing water extractions in the Central Valley would jeopardize several threatened and endangered species. The court also affirmed the district court on three cross-appeal issues related to the biological opinion.

The U.S. Bureau of Reclamation (Reclamation) requested the biological opinion in accordance with the Endangered Species Act (ESA).  Following new designations of certain species and habitats in the Sacramento-San Joaquin Delta (Delta), Reclamation asked NMFS to evaluate the impact of California’s complex water distribution system on five Salmonid species of anadromous fish and the Southern Resident orca. NMFS determined continued operations of the system would jeopardize the existence of all but one of the fish species and recommended several “reasonable and prudent alternatives” (RPAs) to change how Reclamation pumped water from the Delta. Subsequently, numerous water districts and other stakeholders (plaintiffs) sued Reclamation and other federal agencies arguing that portions of the biological opinion were arbitrary and capricious in violation of the Administrative Procedures Act (APA).

The court’s opinion mirrored its previous decision in San Luis & Delta-Mendota Water Authority v. Jewell, 747 F.3d 581 (summarized here: http://www.thomaslaw.com/blog/ninth-circuit-reverses-district-court-upholds-biological-opinion-protecting-endangered-delta-smelt/) in which the court similarly reversed the district court and upheld a biological opinion regarding the Delta Smelt. Similar to Jewell, the court held the trial court erred in considering evidence outside the record. The court reasoned the district court improperly used the extra-record evidence to question NMFS’ scientific judgments.

The court then considered each of plaintiffs’ challenges to the biological opinion and found that the district court did not afford NMFS the proper deference under the APA. Paralleling its reasoning in Jewell, the court upheld NMFS’ use of raw salvage figures to estimate the number of fish trapped in the Delta’s pumps. The court also concluded that NMFS did not act arbitrarily or capriciously in finding the continued water allocations would jeopardize the viability and habitat of the listed species. The court reasoned NMFS properly characterized the baseline status of the populations, correctly applied the ESA, considered all relevant factors and adequately supported its conclusions with the best available evidence. Accordingly, the district court erred in questioning the scientific judgments of NMFS.

The court also held the trial court erred in requiring NMFS to explain why each RPA was necessary over other alternatives to preserve the listed species. The ESA imposed no such burden and only required NMFS to “fairly conclude–based on the record­­–that the proposed RPAs do not further jeopardize the listed species or adversely affect critical habitats.”

Finally, the court upheld the district court on three cross-appeals in which the district afforded NMFS the proper deference in drafting the biological opinion.

KEY POINT

The court reiterated the holding from San Luis & Delta-Mendota Water Authority v. Jewell that courts should be highly deferential to the scientific expertise of agencies such as NMFS when reviewing biological opinions. Litigants should also strongly consider the terse summation of the Delta situation guiding the Ninth Circuit in this case and likely in future cases as well––“People need water, but so do fish.”

Ninth Circuit Rejects ESA and NEPA Challenges to Yellowstone Bison Management Plan

Thursday, December 11th, 2014

In Alliance for the Wild Rockies v. U.S. Department of Agriculture, 2014 U.S. App. LEXIS 21949, the Ninth Circuit Court of Appeals affirmed in part and reversed in part an environmental advocacy groups’ challenge to a management plan for bison herds in Yellowstone National Park. While the court reversed several procedural determinations of the trial court, the court upheld summary judgment on the Environmental Species Act (ESA) and National Environmental Protection Act (NEPA) claims and held the respondent federal agencies adequately analyzed the impacts of the Interagency Bison Management Plan on Yellowstone grizzly bears.

To minimize the risk of disease transfer between Yellowstone bison and cattle, various federal agencies developed a bison management plan that allowed the Montana Department of Livestock to use low-altitude helicopter flights each year to herd bison from grazing areas in low elevations back into Yellowstone. When the original plan was approved in 2000, the federal agencies completed an environmental impact statement (EIS) that concluded the impact of the management plan on Yellowstone grizzly bears would be insignificant. The federal agencies also completed a biological evaluation in accordance with Section 7 of the ESA that reached the same conclusion.

In 2012, the National Park Service recognized the helicopter flights were overlapping more than anticipated with the reemergence of Yellowstone grizzlies following their winter hibernation. A second biological evaluation was conducted, which also determined that any impact on Yellowstone grizzlies was insignificant.

The court first reversed the district and held that petitioner had standing to challenge the management plan under the ESA and NEPA. The court rejected the trial court’s reasoning that petitioner had no standing because the federal agencies did not have the authority to unilaterally stop the low-elevation helicopter flights. Instead, the remedy sought by petitioner under the ESA was a biological opinion and incidental take statement for the Yellowstone grizzlies. Under NEPA, petitioner sought a supplemental EIS. Because both of these remedies are within the authority of the federal agencies, the court held petitioner had standing.

Petitioner brought two challenges under the ESA—first that Section 7(a)(2) of the ESA required an updated biological opinion and second, that a take permit was required for the Yellowstone grizzly under Section 9. The court affirmed the trial court’s decision that the Section 7(a)(2) claim was moot because during the course of the litigation the National Park Service completed a biological opinion.

With respect to the Section 9 claim, the court first reversed the trial court’s decision that the claim was barred because the complaint was filed less than 60 days after petitioner gave the federal agencies notice of the lawsuit. Although Section 11(g)(1)(A) prohibits plaintiffs from filing an ESA claim less than 60 days after notifying the defendant, in the instant case, petitioner filed its initial complaint without the ESA claims and only added them after the 60 days was over. The court held the plain language of the statute did not prohibit filing a complaint and amending it to include ESA claims after the 60-day notification period.

Getting to the substance of the ESA and NEPA claims, the court upheld summary judgment on the section 9 claim and found the record lacked evidence to show the helicopter flights would result in a “take” of grizzly bears. Similarly, NEPA did not require the federal agencies to complete a supplemental EIS because the original EIS already analyzed the possibility of increased encounters between the helicopters and Yellowstone grizzlies.

KEY POINT

The court emphasized the redressability requirement for standing does not require a court to determine whether the plaintiff will actually achieve the relief it desires. It is sufficient that the relief “could protect their concrete interests.” Here, even if an incidental take statement or biological opinion would result in greater protection of the Yellowstone grizzlies, petitioner had a right to adjudicate the claim.

Ninth Circuit Requires Bureau of Reclamation to Consult with USFWS to Protect Delta Smelt

Wednesday, May 7th, 2014

In another decision related to California’s delta smelt, the Ninth Circuit Court of Appeals in a unanimous en banc decision in NRDC v. Jewell, 2014 U.S. App. LEXIS 7063, reversed the district court’s summary judgment in favor of the defendants and held that Environmental Species Act (ESA) Section 7(a)(2) applies to the Bureau of Reclamation’s (Bureau) renewal of certain water allocation contracts for the Central Valley Project.

The Bureau is responsible for managing the Central Valley Project, which conveys water through the endangered delta smelt’s habitat in the California River Delta to millions of water users around the state. The Bureau entered into several contracts with water users related to the Central Valley Project and prepared an Operations Criteria and Plan (Plan) for renewal of those contracts in the early 2000s.

ESA Section 7(a)(2) requires federal agencies to consult with the United States Fish and Wildlife Service (FWS) or the National Marine Fisheries Service prior to undertaking any action that could affect an endangered or threatened species. Pursuant to this requirement, the Bureau consulted FWS regarding the Plan. FWS issued a Biological Opinion in 2004 and a second opinion in 2005 concluding that the Plan would not jeopardize the delta smelt. However, courts invalidated those two Biological Opinions. Relying on concurrence letters from FWS that were limited to the reasoning in these invalidated opinions, the Bureau renewed 159 contracts pursuant to the Plan in 2004 and 2005.

Plaintiff-Appellants, the Natural Resources Defense Council (NRDC) and other environmental groups, sued to compel the Bureau to consult with FWS under Section 7 of the Endangered Species Act regarding 41 of the renewed contracts.

Defendants first argued that NRDC’s case was moot because the Bureau subsequently consulted with FWS, which issued a 2008 Biological Opinion concerning the impacts of the Plan.  However, the 2008 Biological Opinion only concerned the general impacts of the Plan and did not address the impacts of the renewal of the 41 contracts challenged by the NRDC, which were renewed in 2004 and 2005. Therefore, the remedy NRDC sought in requiring consultation on the impacts of the specific contracts was still available and the case was not moot.

Defendants also contended that NRDC lacked standing because the injury was not fairly traceable to the Bureau’s procedural violation. The district court had reasoned that because some of the contracts absolved the Bureau of liability for failure to meet certain legal obligations such as ESA Section 7(a)(2) due to a water shortage, there was nothing more the Bureau could have done to protect the delta smelt and therefore, the procedural violation was not the cause of NRDC’s alleged injury. Citing Defenders of Wildlife v. United States EPA, the court held that for a procedural violation such as failure to comply with ESA Section 7(a)(2), plaintiffs need only demonstrate that compliance could protect their concrete interests. ((9th Cir. 2005) 420 F.3d 946 revd. in part on other grounds by Nat. Assn of Home Builders v. Defenders of Wildlife (2007) 551 U.S. 644.) The court found that adequate consultation and further negotiation of contracts could lead to greater protections for the delta smelt and as a result, NRDC had standing in the case.

Finally, the court held that the district court improperly concluded ESA Section 7(a)(2) did not apply to the contracts due to the water shortage provision. The district court had reasoned that Section 7(a)(2) did not require the Bureau to consult FWS because the Bureau’s discretion was “substantially constrained.” However, the proper standard that triggers consultation under Section 7(a)(2) is whether the agency retains “some discretion” – it does not turn on the degree of that discretion. (Citing Karuk Tribe of Cal. v. U.S. Forest Svc. (9th Cir.2012) 681 F.3d 1006, 1024-1025.) The original contracts gave the Bureau discretion to not renew the contracts at all, but even assuming the Bureau had been required to renew the contracts, nothing prevented the Bureau from taking other action to protect the delta smelt, such as changing the timing of water deliveries that would protect the delta smelt. As a result, because the Bureau retained “some discretion” to take action that benefited the species, it was required to consult with FWS pursuant to Section 7 of the ESA regarding the renewal of the challenged contracts.

KEY POINT

To have standing to challenge alleged procedural violations such as failure to properly consult pursuant to ESA Section 7(a)(2), plaintiffs need only show that compliance could  protect their concrete interests. Additionally, agencies are only exempt from the ESA Section 7(a)(2) requirement to consult if the acting agency does not have any discretion at all to act to protect the endangered or threatened species.