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Southwest Center for Biological Diversity v. United States Bureau of Reclamation


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The plaintiff, Southwest Center for Biological Diversity (Southwest Center), alleged violations of the Endangered Species Act (ESA)[1] by the United States Bureau of Reclamation (the Bureau). The plaintiff asserted that the Bureau’s operations on the Lake Mead delta behind Hoover Dam on the Lower Colorado River caused high water levels that inundated the habitat of the endangered southwestern willow flycatcher (Flycatcher). Southwest claimed that the Bureau had violated ESA section 7[2] by jeopardizing the continued existence of the Flycatcher and section 9[3] by “taking” Flycatchers through habitat modification without a valid incidental take permit.

On appeal, appellants raised two issues. First, Southwest Center sought an injunction requiring the Bureau to draw down the level of Lake Mead in order to preserve Flycatcher habitat in the delta. Second, appellants claimed that the Secretary of the Interior (Secretary), acting through the United States Fish and Wildlife Service (FWS), had violated the “arbitrary and capricious” standard of the Administrative Procedure Act (APA)[4] when FWS adopted a final reasonable and prudent alternative (RPA) that differed substantially from its draft RPA. In addition, seven southwestern states (the States) claimed that they were indispensable parties and that the suit should have been dismissed for failure to join them.

In upholding the district court’s grant of summary judgment for lack of subject matter jurisdiction over the claims against the Bureau, the Ninth Circuit held that Southwest Center had not complied with the notice requirement in the ESA’s citizen suit provision. Under this requirement, any citizen bringing suit under the ESA must provide written notice to both the Secretary and the alleged violator at least sixty days prior to filing suit.[5] Three letters sent to the Secretary and the Bureau failed to strictly comply with the notice requirement. Although the letters were timely and explicitly indicated intent to sue under the ESA, they did not sufficiently alert the Secretary and the Bureau to the specific violations that Southwest eventually alleged.

The court explained that the purpose of the notice requirement is to require the provision of sufficient information of a violation so that the alleged violator can identify and attempt to abate the alleged violation. Southwest Center’s letters failed to provide such information. One of the letters complained that the Bureau had illegally “taken” listed species on the Lower Colorado River, but none of the letters mentioned the Bureau’s operations at Hoover Dam or the Flycatcher habitat at Lake Mead. A fourth letter claimed that the Bureau’s operations at Hoover Dam were jeopardizing the continued existence of the Flycatcher, but the appellants conceded that this letter failed to satisfy the notice requirement because it was sent to FWS and not the Secretary or the Bureau.

After it dismissed Southwest Center’s complaint against the Bureau, the district court also dismissed as moot the States’ motion to establish indispensable party status. The Ninth Circuit affirmed. Although the States had a clear interest in the water level at Lake Mead, their claim became moot as a matter of law once the plaintiff’s complaint was dismissed.

Southwest Center’s complaint against the Secretary claimed that he, acting through FWS, had violated the APA by acting arbitrarily, capriciously, and contrary to the ESA.[6] The ESA required FWS to suggest reasonable and prudent alternatives not likely to jeopardize the continued existence of the Flycatcher or to result in the destruction or adverse modification of its habitat.[7] FWS adopted a final RPA that, unlike its draft RPA, neither required the Bureau to immediately protect and maintain the Flycatcher’s habitat at Lake Mead nor to maintain substitute habitat at Roosevelt Lake, Arizona. FWS omitted these measures from its final RPA because the Bureau alleged that it lacked discretion to reduce the level of Lake Mead. Southwest Center claimed that the Secretary had improperly rejected the draft RPA because he had failed to independently review the Bureau’s opinion that it lacked such discretion.

The district court repudiated Southwest Center’s argument, holding that the Secretary’s decision not to adopt the draft RPA was not arbitrary or capricious, and the Ninth Circuit affirmed. In deciding whether the Secretary has acted arbitrarily and capriciously or has abused his discretion in adopting an RPA, a court should focus only on the standards and requirements of the ESA and whether the final RPA meets them. The ESA required the Secretary to adopt an RPA that would protect the Flycatcher from jeopardy and that could be implemented, not necessarily the RPA that was originally favored or that would most effectively protect the species. In addition, the ESA did not require the Secretary to explain why one RPA was chosen over another, to base his decision solely on apolitical factors, or to maintain his opinion that preserving the Lake Mead habitat was necessary to the Flycatcher’s survival. Finally, the court noted that Southwest Center had not presented any convincing evidence that the final RPA would fail to sufficiently protect the Flycatcher.

[1] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (1994).

[2] Id. § 1536(a)(2).

[3] Id. § 1538.

[4] Administrative Procedure Act, 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (1994 & Supp. III 1997). The arbitrary and capricious standard is found at 5 U.S.C. § 706(2)(A) (1994).

[5] 16 U.S.C. § 1540(g)(2)(A)(i) (1994).

[6] 5 U.S.C. § 706(2)(A) (1994).

[7] 16 U.S.C. § 1536(b)(3)(A) (1994); see also 50 C.F.R. § 402.14(h)(3) (1998).

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