Home » Case Summaries » 2015 » Bear Valley Mutual Water Co. v. Jewell, 790 F.3d 977 (9th Cir. 2015)


Bear Valley Mutual Water Co. v. Jewell, 790 F.3d 977 (9th Cir. 2015)


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In this case, several municipalities and water districts[1] (collectively, Bear Valley) sued the United States Fish and Wildlife Service, the Department of the Interior, and other federal officials (collectively, FWS), alleging that: 1) FWS violated the Endangered Species Act (ESA)[2] because it did not cooperate with state and local agencies in resolving water resources issues that arose from the critical habitat designation of the Santa Ana sucker; 2) FWS acted arbitrarily and capriciously in revising its critical habitat designation to include previously excluded land; and 3) FWS violated the National Environmental Policy Act (NEPA)[3] by failing to prepare an environmental impact statement prior to designation. The United States District Court for the Central District of California granted FWS summary judgment on all claims. The Ninth Circuit affirmed.

The Santa Ana sucker is a small freshwater fish native to California. In the late 1990s, two coalitions formed and developed the Santa Ana Sucker Conservation Plan (SASCP) and the Western Riverside County Multiple Species Habitat Conservation Plan (MSHCP), a regional plan encompassing 1.26 million acres, to balance the incidental taking of the sucker with conservation measures. In 2004, FWS formally approved the MSHCP. Under the terms of the MSHCP Implementation Agreement (Implementation Agreement), FWS stipulated that lands within the boundaries of the MSHCP would not be designated as Critical Habitat for the Santa Ana sucker.

In April 2000, FWS listed the sucker as a threatened species, but did not designate critical habitat for the sucker in the Final Listing Rule.[4] FWS conducted additional research and issued its critical habitat designations in 2004, excluding certain “essential habitat” areas encompassed by the MSHCP and the SASCP.[5] After review and comment, FWS promulgated its 2005 Final Rule revising the primary constituent elements for the sucker and reducing the designated critical habitat from 21,129 acres to 8,305 acres. Conservation groups sued FWS alleging that the 2005 rule violated the ESA and Administrative Procedure Act (APA),[6] and the parties settled in 2009. The settlement agreement required FWS to reconsider its critical habitat designation for the Santa Ana sucker. In 2010, FWS issued its Final Rule designating 9,331 acres as critical habitat, including areas within the MSHCP. The municipalities and water districts then brought the suit at issue in this case. The Ninth Circuit reviewed de novothe district court’s grant of summary judgment for FWS, and explained that claims against an agency arising under the ESA are evaluated under the APA’s arbitrary and capricious standard.[7]

Bear Valley first argued that FWS violated section 2(c)(2) of the ESA[8] by failing to work with state and local agencies to balance water resource concerns with endangered species conservation goals. The Ninth Circuit held that Bear Valley’s argument failed as a matter of law because section 2(c)(2) merely announces general policy goals and contains no procedural mandate. The court explained that the ESA’s policy goals are implemented through the substantive and procedural requirements found in section 4 of the ESA.[9] The court then determined that FWS complied with section 4’s requirements, and therefore conformed with section 2(c)(2)’s statement of policy.

Next, Bear Valley challenged FWS’s decision notto exclude land covered by the MSHCP from the Final Rule’s critical habitat designation. Bear Valley argued that, since there is a standard to review an agency’s decision to exclude areas from a critical habitat designation, the same standard should be used to review an agency’s decision not to exclude areas. The Ninth Circuit agreed with the district court that FWS’s decision was unreviewable because the statute authorizes FWS to exclude areas from a critical habitat designation, but does not compel FWS to do so.[10] Therefore, FWS’s decision not to exclude the habitat at issue in this case was an unreviewable exercise of agency discretion.

While an agency’s decision not to exclude essential habitat from a critical habitat designation is unreviewable, courts can review whether FWS properly included an area in a critical habitat designation.[11] Bear Valley contended that, by executing the MSHCP and the Implementation Agreement, FWS pledged not to designate any areas covered by the MSHCP as critical habitat. Bear Valley argued that FWS’s failure to consider the consequences of ignoring those assurances made the 2010 Final Rule arbitrary and capricious. FWS responded that its obligations under the ESA necessarily took priority over any assurances in the Implementation Agreement, and argued it would be inappropriate and unlawful for an agency to prospectively agree to the substantive outcome of a future rulemaking. The Ninth Circuit agreed that FWS could not relinquish its statutory obligation to designate essential critical habitat through agreements with third parties. The Ninth Circuit then determined that FWS complied with the ESA because it adequately considered the impacts of designating areas covered by the MSHCP and SASCP as critical habitat in the 2010 Final Rule.

The Ninth Circuit then dispatched with Bear Valley’s next two assignments of error. The court first explained that the 2010 Final Rule did not violate the “No Surprises” rule—which provides that, once a permit has been issued pursuant to a habitat conservation plan, the permittee can rely on the agreed upon cost of conservation and mitigation–[12] because the 2010 Final Rule did not require Bear Valley to undertake new or costlier conservation measures. The Ninth Circuit next explained that FWS did not fail to provide adequate notice and comment by relying on studies not in the 2009 Proposed Rule’s record to develop the 2010 Final Rule because those new studies merely expanded on and confirmed information that was in the record.

Bear Valley next argued that the 2010 Final Rule designated areas unoccupied by the Santa Ana sucker as a critical habitat, and that FWS failed to explain how the unoccupied areas were essential to the conservation of the sucker or how the designated occupied areas were inadequate to meet conservation goals required by the ESA. The Ninth Circuit disagreed, explaining that the 2010 Final Rule sufficiently demonstrated that designation of unoccupied habitat was essential, which in turn demonstrated that designation of only occupied areas would have been inadequate.

Finally, Bear Valley argued that FWS violated NEPA by failing to prepare an environmental impact statement in connection with the 2010 final rule. The Ninth Circuit, however, explained that NEPA does not apply to the designation of critical habitat as a matter of law.[13] Ultimately, the Ninth Circuit affirmed the district court’s decision to grant summary judgment on all claims in favor of FWS.



Footnotes    (↵ returns to text)
  1. Plaintiff-appellants included the Big Bear Municipal Water District, the City of Redlands, the City of Riverside, the City of San Bernardino Municipal Water Department, the East Valley Water District, the Riverside County Flood Control and Water Conservation District, the San Bernardino Valley Municipal Water District, the San Bernardino Valley Water Conservation District, the Western Municipal Water District, the West Valley Water District and the Yucaipa Valley Water District.
  2. Endangered Species Act of 1973, 16 U.S.C. §§ 1531–1544 (2012).
  3. National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321–4370h (2012).
  4. FWS did not designate critical habitat on the ground that its “knowledge and understanding of the biological needs and environmental limitations of the Santa Ana sucker and the primary constituent elements of its habitat are insufficient to determine critical habitat for the fish.” Endangered and Threatened Wildlife and Plants; Threatened Status for the Santa Ana Sucker, 65 Fed. Reg. 19,686, 19,696 (Apr. 12, 2000).
  5. Endangered and Threatened Wildlife and Plants; Final Rule to Designate Critical Habitat for the Santa Ana Sucker (Castostomus santaanae), 69 Fed. Reg. 8839, 8844, 8846 (Feb. 26, 2004).
  6. Administrative Procedure Act, 5 U.S.C. §§ 551–559, 701–706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2012).
  7. See id. § 706(2)(A) (providing that an agency decision will be set aside only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”).
  8. ESA, 16 U.S.C. § 1531(c)(2) (2012).
  9. See id. §§ 1533(b)(5)(A)(ii), 1533(i).
  10. See id. § 1533(b)(2) (stating that FWS “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.”).
  11. Bear Valley Mutual Water Co. v. Jewell, 790 F.3d 977, 990 (9th Cir. 2015).
  12. Habitat Conservation Plan Assurances Rule, 63 Fed. Reg. 8,859, 8,867 (Feb. 23, 1998).
  13. See Douglas Cty. v. Babbitt, 48 F.3d 1495, 1502–07 (9th Cir. 1995) (deciding that NEPA does not apply to the designation of a critical habitat because ESA procedures have displaced NEPA requirements, NEPA does not require an EIS for actions that preserve the physical environment, and ESA furthers the goals of NEPA without requiring an EIS).
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