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Western Watersheds v. Matejko

 

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Defendants U.S. Forest Service (USFS) and Bureau of Land Management (BLM), as well as individual agency officials, together with intervenor-defendant State of Idaho appealed a district court’s finding in favor of plaintiffs Western Watersheds Project and Committee for Idaho’s High Desert (collectively, Western Watersheds) that BLM’s failure to initiate consultation regarding its decision to not regulate certain privately-held vested rights-of-way diverting irrigation water across public lands violated the requirement under the Endangered Species Act (ESA)[1] to consult with the Secretary of the Interior or the Secretary of Commerce if there is “any action authorized, funded, or carried out by”[2] a federal agency. The Ninth Circuit Court of Appeals reversed and denied Western Watersheds’s petition for rehearing, holding that while affirmative actions trigger ESA’s consultation requirement because BLM took no such action there was no duty to consult.

Western Watersheds filed suit in 2001 against BLM, BLM’s regional officials, and USFS seeking declaratory and injunctive relief regarding BLM’s acquiescence in hundreds of river and stream irrigation “diversions” (e.g., dams and pipes) by parties holding vested rights-of-way to divert water on public lands in central Idaho. These water rights vested prior to passage of the Federal Land Policy and Management Act (FLPMA).[3] BLM issued a policy statement in 1983[4] and regulations in 1986[5] recognizing the existence of the pre-FLPMA water rights and providing for BLM approval or action only if there was a “substantial deviation in location or authorized use”[6] of the right-of-way. The parties did not dispute that the diversions could jeopardize threatened fish species. Western Watersheds’s primary claims against USFS settled. The district court found that BLM had discretionary involvement in the diversions because it could have chosen to regulate them and held that BLM “acted” either by (1) continuing to follow the regulations that vested the water rights, or (2) by not exercising its discretion to regulate the diversions.[7] The district court reasoned that BLM had not performed a mandatory duty and could therefore be compelled to perform under the Administrative Procedure Act (APA).[8] The district court entered a permanent injunction against BLM, requiring the agency to initiate consultation.[9]

The Ninth Circuit reviews a district court’s decision to issue a permanent injunction for abuse of discretion,[10] but reviews the district court’s rulings of law de novo. The Administrative Procedure Act (APA)[11] governs Ninth Circuit review of agency decisions under the ESA.[12] The sole count of Western Watersheds’s amended complaint on appeal called for the parties to litigate six representative diversions, focusing on the question of whether ESA section 7(a)(2) required BLM to initiate consultation.

The Ninth Circuit reasoned that the appeal depended on whether a failure to exercise discretion is an “agency action”[13] subject to ESA’s consultation requirement. The court began by examining the plain language of the ESA. The court noted that section 7(a)(2) indicates that “agency action”[14] is “any action authorized, funded or carried out by such agency.”[15] The court reasoned that a failure to act is out of place among section 7(a)(2)’s affirmative acts of authorizing, funding and carrying-out, noting that other parts of the ESA refer explicitly to agencies’ failure to act.[16] The court next considered the ESA regulations.

Both sides sought to support their arguments using ESA regulations defining “action.”[17] Western Watersheds argued that a regulation’s reference to “all activities or programs of any kind[18] as actions encompassed an agency’s failure to act, while BLM emphasized the affirmative nature of that regulation’s examples of actions.[19]

The Ninth Circuit next considered its prior interpretations of ESA section 7(a)(2). While providing that “agency action” should be broadly construed,[20] the court noted that a recent Ninth Circuit case, Defenders of Wildlife v. EPA,[21] required consultation under the ESA only in cases of affirmative agency action. The court noted the Defenders of Wildlife opinion’s consistency with earlier Ninth Circuit cases[22] and, using Ninth Circuit precedent,[23] distinguished “affirmative” actions from BLM’s failure to act. The court concluded that BLM did not act affirmatively to establish the diversions and was “not an entity responsible for [the challenged] decisionmaking.”[24]

Next, the Ninth Circuit addressed Western Watersheds’s argument that BLM’s ongoing decision not to exercise its regulatory discretion constituted “affirmative action” under 50 C.F.R. § 402.03.[25] The court noted that “[w]here the challenged action comes within the agency’s decisionmaking authority and remains so, it falls within section 7(a)(2)’s scope,”[26] but reasoned that there was no ongoing action where BLM had acted and then later either relinquished or lost its authority to act. The court reasoned that BLM’s position was analogous to two cases where agencies had no ongoing decisionmaking authority: Environmental Protection Information Center v. Simpson Timber Company[27] and Sierra Club v. Babbitt.[28] The court distinguished Washington Toxics Coalition v. Environmental Protection Agency,[29] Pacific Rivers Council v. Thomas[30] and Turtle Island Restoration Network v. National Marine Fisheries Services[31] as cases where agencies retained continuing decisionmaking authority.

The Ninth Circuit next addressed the issue of whether BLM had any discretion to regulate the diversions to protect endangered species. The court provided that while BLM had other regulatory authority[32] it had no power to regulate to protect endangered species; BLM’s 1983 instructions, and 1983 and 2005[33] regulations only allowed BLM’s discretionary regulation of the diversions if there was a “substantial deviation in location or authorized use of pre-FLPMA rights.”[34] The court concluded that BLM’s authority over the diversions did not amount to continuing “discretionary involvement or control”[35] under ESA regulations.[36]

Finally, the Ninth Circuit addressed the district court’s finding that BLM could be compelled to initiate consultation under the APA due to its failure to act. The court noted that the current action was not to “compel agency action”[37] and provided that the Western Watersheds’s suit could not be a programmatic challenge to BLM’s regulation of pre-FLPMA water rights.[38] The court also indicated that Western Watersheds’s suit was not valid as a “failure to regulate” claim because such claims must be grounded in a clear duty for an agency to take a particular action.[39]

In conclusion, the Ninth Circuit reversed the district court’s permanent injunction against BLM and denied Western Watersheds’s petition for rehearing, finding that BLM had no duty under the ESA to consult regarding the test-case diversions.


[1] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (2000).

[2] 16 U.S.C. § 1536(a)(2).

[3] Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701-1785 (2000) (provided a uniform process for establishing a right-of-way over public lands and preserved such previously vested rights).

[4] See W. Watersheds v. Matejko, 468 F.3d 1099, 1104 (9th Cir. 2006).

[5] See 43 C.F.R. § 2801.4 (2004) (“A right of way grant issued on or before October 21, 1976, pursuant to then existing statutory authority is covered by the provisions of this part unless administration of this part diminishes or reduces any rights conferred by . . . the statute under which it was issued, in which event . . . the then existing statute shall apply.”).

[6] 43 C.F.R. § 2803.2(b) (2004).

[7] See W. Watersheds v. Matejko, No. 01-00259 (D. Idaho Mar. 24, 2004).

[8] See Administrative Procedure Act, 5 U.S.C. § 706(1) (2000).

[9] See W. Watersheds, No. 01-00259.

[10] See Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1176 (9th Cir. 2002).

[11] Administrative Procedure Act, 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5362, 7521 (2000).

[12] See Turtle Island Restoration Network v. Nat’l Marine Fisheries Serv., 340 F.3d 969, 973 (9th Cir. 2003) (“Under the APA, a court may set aside an agency action if the court determines that the action was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.'” (quoting the APA, 5 U.S.C. § 706(2)(A)).

[13] Endangered Species Act of 1973, 16 U.S.C. § 1536(a)(2) (2000).

[14] Id.

[15] Id.

[16] See, e.g., 16 U.S.C. § 1540(g)(1)(C) (2000) (authorizing citizen suits “where there is alleged a failure of the Secretary to perform any act or duty . . . which is not discretionary[.]”).

[17] See 50 C.F.R. § 402.02 (2004) (Defining “action” as “all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States . . . . “).

[18] Id. (emphasis added).

[19] Id. (providing as examples of action “the promulgation of regulations” and “the granting of . . . rights-of-way.”)

[20] See Natural Res. Def. Council v. Houston, 146 F.3d 1118, 1125 (9th Cir. 1998).

[21] See Defenders of Wildlife v. EPA, 420 F.3d 946 (9th Cir. 2005) (emphasizing that under ESA section 7(a)(2) only “affirmative” acts are “actions,” while providing that a failure to act necessarily falls outside the scope of this definition).

[22] See Sierra Club v. Babbitt, 65 F.3d 1502, 1511 (9th Cir. 1995) (reasoning that “a BLM ‘action’ will implicate section 7(a)(2) only if it legitimately authorizes [private] activity” and concluding that the BLM’s issuance of an “approval” letter for a road right-of-way could not be construed as an “authorization” triggering a duty to consult). See also Marbled Murelet v. Babbitt, 83 F.3d 1068, 1074-75 (9th Cir. 1996) (finding section 7(a)(2) inapplicable where the responding agency “merely provided advice” on how to avoid a “take” but did not act to “authorize, fund or carry out” challenged tree-harvesting operations).

[23] See Turtle Island Restoration Network v. Nat’l Marine Fisheries Serv., 340 F.3d 969, 977 (9th Cir. 2003) (holding that section 7(a)(2) applies to the “continued issuance of fishing permits”). See also Natural Res. Def. Council v. Houston, 146 F.3d 1118, 1125-26 (9th Cir. 1998) (reasoning that section 7(a)(2) applies to negotiating and executing water contracts, where agency was not bound to reaffirm previously negotiated terms).

[24] Defenders of Wildlife, 420 F.3d at 968 (citing Wash. Toxics Coal. v. Envtl. Prot. Agency, 413 F.3d 1024, 1033 (9th Cir. 2005)).

[25] See 50 C.F.R. § 402.03 (2004) (“Section 7 and the requirements of this Part apply to all actions in which there is discretionary Federal involvement or control.”).

[26] Defenders of Wildlife, 420 F.3d at 969 (emphasis added).

[27] See Envtl. Prot. Info. Ctr. v. Simpson Timber Co., 255 F.3d 1073, 1082 (9th Cir. 2001) (no ongoing agency involvement where the FWS had issued a permit without retaining authority to amend it to protect endangered species).

[28] See Sierra Club v. Babbitt, 65 F.3d 1502, 1509 (9th Cir. 1995) (providing that section 7(a)(2) did not apply where BLM had no authority to influence actions based on a right-of-way established before ESA enactment).

[29] See Wash. Toxics Coal. v. Envt’l Prot. Agency, 413 F.3d 1024, 1033 (Under Federal Insecticide, Fungicide, and Rodenticide Act, EPA had a continuing duty “to register pesticides, alter pesticide registrations, and cancel pesticide registrations.”).

[30] See Pac. Rivers Council v. Thomas, 30 F.3d 1050, 1053 (9th Cir. 1994) (USFS had ongoing authority under a management plan still in effect.).

[31] See Turtle Island Restoration Network v. Nat’l Marine Fisheries Serv., 340 F.3d 969, 977 (9th Cir. 2003) (NMFS had continuing authority where it retained discretion to protect species in its permits.).

[32] See 43 U.S.C. § 1733 (2000); 43 C.F.R. § 2808.11 (2005) (providing BLM ability to bring enforcement or trespass actions if a right-of-way holder “substantially deviates” without BLM approval). See also 16 U.S.C. § 1538 (2000) (providing BLM ability to bring an ESA § 9 taking action to prevent harm).

[33]See 70 Fed. Reg 20970 (Apr. 22, 2005) (After the district court decision, BLM significantly amended its right-of-way regulations.).

[34] 43 C.F.R. § 2803.2(b) (2004).

[35] 50 C.F.R. § 402.03 (2004).

[36] See Marbled Murelet v. Babbitt, 83 F.3d 1068, 1074 (9th Cir. 1996) (“there is no evidence that the USFWS had any power to enforce those conditions other than its authority under section 9 of the ESA, and this is not enough to trigger ‘federal action’ under section 7).

[37] See Administrative Procedure Act, 5 U.S.C. § 706(1) (2000).

[38] See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 891 (1990) (“Under the terms of the APA, the respondent must direct its attack against some particular ‘agency action’ that causes it harm.”).

[39] See S. Utah Wilderness Alliance v. Norton, 542 U.S. 55, 64 (2004).

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