Home » Case Summaries » 2015 » Center for Biological Diversity v. U.S. Fish & Wildlife Service, 807 F.3d 1031 (9th Cir. 2015)

 
 

Center for Biological Diversity v. U.S. Fish & Wildlife Service, 807 F.3d 1031 (9th Cir. 2015)

 

The Center for Biological Diversity (CBD) brought suit against the United States Fish and Wildlife Service (FWS) challenging FWS’s decision to sign a memorandum of agreement (MOA) based on conclusions reached in its Biological Opinion (BiOp). Specifically, CBD alleged that the BiOp failed to meet standards set forth in the Endangered Species Act (ESA)[1] and, as a result, FWS’s decision to sign the MOA was arbitrary and capricious. The United States District Court for the District of Nevada granted FWS’s motion for summary judgment. On appeal, the Ninth Circuit affirmed the district court’s opinion.

The Moapa dace is a small thermophilic fish found in the Muddy River in the Clark County area of Nevada. FWS listed the Moapa dace as an endangered species under the ESA in 1967. The many threats the Moapa dace faces include loss of habitat from water diversions and development. In 1979, a protected area for the Moapa dace was established known as the Moapa Valley National Wildlife Refuge, which consisted of approximately 106 acres of springs and wetlands in the Warm Springs Area of the Upper Moapa Valley.

In 2002, Nevada’s state engineer issued Order 1169,[2] resulting in an abeyance for any applications for groundwater appropriation in the Coyote Spring Valley. The abeyance would be in effect pending a study of the impact of pumping groundwater (pump test) on preexisting water rights. During the same time period, FWS was concerned that groundwater pumping in the Arrow Canyon, Coyote Springs Valley hydrographic basin, and California Wash hydrographic basin was causing spring flow decline in the Warm Spring area.

In 2004, FWS met with organizations and water-rights holders to identify conservation measures to assist with the Moapa dace’s survival in anticipation of the pump test. In 2006, FWS and the water-rights holders entered into the MOA as a means of reconciling the respective parties’ rights of use with the conservation and recovery needs of the Moapa dace. The MOA contained various monitoring, management, and conservation measures that could be grouped into two categories: those “designed to reduce pumping and dedicate water rights for Moapa dace conservation and measures designed to restore and improve Moapa dace habitat.”[3] Furthermore, the MOA indicated that all parties wanted FWS to prepare a BiOp.

In 2006, FWS issued a BiOp that analyzed the possible effects of removal of 16,100 acre-feet per year from two basins in the Moapa Valley National Wildlife Refuge.[4] The BiOp stated that the groundwater pumping could result in a 31% loss of spawning habitat in one unit of the Moapa dace, but other units’ spawning habitats would be relatively unaffected.[5] The BiOp further stated that temperature reductions from loss of flow in one unit could extend downstream and impact the Moapa dace by restricting reproductive potential and making the dace more vulnerable to wildfires. In addition, the BiOp focused on the conservation measures in the MOA and predicted that the measures would increase thermal habitat and reproduction potential in streams, provide secure habitats in case of water declination from groundwater developments, improve habitat in range of species, and reduce vulnerability to wildfires and other catastrophic events. Overall, the BiOp concluded that the MOA was not likely to jeopardize the Moapa dace.

In response, CBD sued FWS for declaratory and injunctive relief. The suit was brought under section 7 of the ESA,[6] the National Environmental Policy Act,[7] the National Wildlife Refuge System Improvement Act,[8] and the Constitution’s Property Clause.[9] The district court granted summary judgment in favor of FWS. CBD appealed the district court’s ruling of summary judgment on the ESA claim only, arguing that 1) the BiOp reached unsupported conclusions that the MOA contained enforceable and effective conservation methods, 2) the BiOp was not based on the best available science, and 3) the BiOp failed to evaluate all foreseeable consequences of the MOA.

Because the BiOp constituted a final agency action, the court applied the highly deferential arbitrary and capricious standard of the Administrative Procedure Act.[10] With that standard in mind, the Ninth Circuit first addressed whether CBD had standing to bring suit. In order to establish standing, a plaintiff must demonstrate that there exists an injury-in-fact, that the injury is traceable to the challenged conduct, and that the injury is likely redressable by a favorable decision.[11] The court found that CBD’s injury-in-fact requirement was met because CBD members had various interests—scientific, spiritual, aesthetic, personal, and work-related—that would be harmed by a decline in the Moapa dace population. Because CBD alleged a procedural violation, its burden was lessened under the causation and redressability prongs; CBD needed only to show that correct procedure might influence FWS’s decision to sign the MOA. Finding that CBD satisfied all three standing prongs, the Ninth Circuit held that CBD had standing to bring its claim.

The court next considered the challenges to the BiOp. CBD first argued that the conservation measures included in the MOA were not enforceable under the ESA and therefore could not factor into the MOA’s jeopardy analysis.[12] The court disagreed because the MOA conservation measures constituted the entire action contemplated by FWS in the BiOp and could therefore be relied on as an action or an effect in the jeopardy analysis. Additionally, the BiOp states that formal consultation with FWS is required if any provisions of the MOA are not met. The Ninth Circuit found that this provision constitutes recourse under the ESA and makes the conservation measures in the MOA sufficiently enforceable.

CBD next argued that FWS failed to satisfy the ESA’s requirement that it use the best available science when developing the BiOp.[13] Specifically, CBD argued that FWS conceded that the flow reduction trigger scheme that constituted the foundation of the “no jeopardy” finding was based on expediency rather than science. CBD supported its argument by pointing to the fact that the flow reduction triggers were negotiated and not biologically based. The Ninth Circuit noted that the ESA does not require FWS to design or plan its projects using the best science possible. Rather, once an action is submitted for formal consultation, the consulting agency must use the best scientific and commercial evidence available in analyzing the potential effects of that action on endangered species in its biological opinion. Therefore, the court concluded that negotiated terms do not of themselves prove that FWS failed to utilize the best available science when it performed its analysis.

Next, CBD argued that there was not sufficient evidence to support a finding that the MOA’s conservation measures were effective at ensuring against jeopardy to the Moapa dace. Additionally, CBD argued that the court should not defer to the BiOp’s conclusions because FWS failed to address concerns raised by its own scientists regarding the effectiveness of the MOA’s conservation measures. The Ninth Circuit explained that CBD’s claim failed because there was no evidence supporting a conclusion that FWS scientists’ concerns were supported by better science than the science used in the BiOp, or that FWS disregarded better scientific information than the evidence FWS relied upon.

The court next deferred to the BiOp’s “no jeopardy” finding. The court first explained that an agency only “jeopardizes” a protected species if it increases the jeopardy to that species. The Ninth Circuit found that CBD did not point to a single provision in the MOA that caused even a minor deterioration in the Moapa dace’s pre-action condition, and that the negative effects stated in the MOA were caused by state-mandated groundwater pumping, not the conservation measures in the MOA themselves. The court characterized CBD’s objections to the MOA and BiOP as claims that FWS did not do enough to ensure the survival of the Moapa dace. However, the court explained that holding FWS to such obligations would broaden FWS’s obligations, both as an action agency and consulting agency, beyond what the ESA required. In sum, the Ninth Circuit concluded that CBD was unable to prove that the BiOp’s conclusion was arbitrary or capricious.

Finally, CBD argued that by failing to issue an Incidental Take Statement (ITS), FWS acted arbitrarily and capriciously because it failed to consider all possible consequences of the proposed action. The law provides that “if after consultation . . . FWS concludes that the taking of endangered species incidental to the agency’s action will not [jeopardize the continued existence of an endangered species, FWS] shall provide the Federal Agency with an ITS.[14] Once again, the Ninth Circuit focused on the fact that the agency action was the execution of the MOA by FWS, and explained that the execution itself does not result in pumping of groundwater. As a result, the Ninth Circuit found that there was no evidence showing an incidental take was likely to occur because FWS simply executed the MOA, and thus, FWS was not obligated to issue an ITS.

Ultimately, the Ninth Circuit held that 1) CBD had standing, but 2) FWS did not act arbitrarily or capriciously in determining, based on the BiOp, that participation in the MOA would not jeopardize the Moapa dace. The court upheld the district court’s motion for summary judgment.

Footnotes    (↵ returns to text)

  1. Endangered Species Act of 1973, 16 U.S.C. §§ 1531–1544 (2012).
  2. Office of the State Eng’r of the State of Nev., Order 1169 (2002), available at http://www.blm.gov/style/medialib/blm/nv/groundwater_development/water_rights.Par.78070.File.dat/Order%201169%20Coyote%20Spring.pdf
  3. Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 807 F.3d 1031, 1039 (9th Cir. 2015).
  4. Memorandum from the Field Supervisor, Nevada Fish and Wildlife Office, FWS, to Manager, California/Nevada Operations, FWS, at 1 (January 30, 2006), available at http://water.nv.gov/hearings/past/dry/browseable/exhibits%5CUSFWS/Exhibit%20602%20Muddy%20River%20MOA.pdf.
  5. Id. at 55.
  6. Endangered Species Act of 1973, 16 U.S.C. §§ 1531–1544 (2012).
  7. National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321–4370h (2012).
  8. Natural Wildlife Refuge System Improvement Act of 1997, Pub. L. No. 105-57, 111 Stat. 1252.
  9. U.S. Const. art. IV, § 3, cl. 2.
  10. 5 U.S.C. §§ 551–559, 701–706, 1305, 3105, 3344, 4301, 5225, 5372, 7521 (2012). The standard of review is set forth in id. § 706.
  11. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).
  12. See Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., 698 F.3d 1101 (9th Cir. 2012) (“[C]onservation agreement entered into by the action agency to mitigate the impact of a contemplated action on listed species must be enforceable under the ESA [for the agreement to factor into a BiOp’s jeopardy determination].”).
  13. See generally Cascadia Wildlands v. Thrailkill, 806 F.3d 1234 (9th Cir. 2015).
  14. 16 U.S.C. §1536(b)(4) (2012).
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