Bear Valley Mutual Water Co. v. Kenneth Salazar
2015 U.S. App. LEXIS 10755
| 9th Cir. | 2015Background
- The Santa Ana sucker was listed as a threatened species by the U.S. Fish and Wildlife Service (FWS) in 2000; critical habitat designations followed in 2004, 2005, and a revised 2010 Final Rule that added previously excluded areas.
- Regional conservation plans exist: the Western Riverside County Multiple Species Habitat Conservation Plan (MSHCP) (approved 2004) and the Santa Ana Sucker Conservation Plan (SASCP); the MSHCP Implementation Agreement stated FWS would not designate MSHCP land as critical habitat "to the maximum extent allowable after public review and comment."
- The 2010 Final Rule designated approximately 9,331 acres (including ~3,048 acres within MSHCP boundaries and ~1,500 acres of unoccupied habitat in subunit 1A) based on the best available science and findings that some unoccupied reaches provide essential sediment and hydrological functions for downstream occupied habitat.
- Municipalities and water districts sued in 2011 challenging the 2010 Final Rule on three main grounds: (1) FWS failed to "cooperate" under ESA §2(c)(2); (2) the inclusion of MSHCP lands and of unoccupied habitat was arbitrary and capricious under the ESA/APA; and (3) FWS violated NEPA by not preparing an EIS. Conservation groups intervened for defendants.
- The district court granted summary judgment to federal defendants; the Ninth Circuit affirmed in all respects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ESA §2(c)(2) creates an independent, enforceable duty to "cooperate" on water-resource issues | §2(c)(2) mandates cooperation with state/local agencies on water resources and is independently enforceable | §2(c)(2) is a policy statement (non‑operative); cooperation obligations are implemented through Section 4 procedures | Court: §2(c)(2) does not create an independent cause of action; no enforceable right beyond Section 4 requirements |
| Whether FWS’s decision not to exclude MSHCP land from critical habitat is reviewable | Decision not to exclude is reviewable and must be judged against standards like those used to review exclusions | Decision whether to exclude is committed to agency discretion (statutory language is permissive) and is unreviewable | Court: Decision not to exclude is committed to agency discretion and not judicially reviewable |
| Whether inclusion of MSHCP lands and related reasoning were arbitrary and capricious under the APA | Inclusion violated MSHCP assurances, reversed prior exclusions, and ignored reliance; FWS failed adequately to consider impacts and changed course without sufficient explanation | FWS considered MSHCP impacts, explained changed circumstances (continued decline; long implementation period), and properly balanced benefits of inclusion vs. exclusion | Court: Inclusion was not arbitrary or capricious; FWS adequately considered MSHCP, explained reasons for inclusion, and did not violate "No Surprises" assurances as applied here |
| Whether FWS lawfully designated unoccupied habitat (subunit 1A) as critical habitat | Unoccupied "source" areas are not "habitable" and cannot meet statutory requirement; occupied habitat would be adequate | Statute permits designation of unoccupied areas if they are "essential" to conservation; FWS showed unoccupied reaches supply sediment/water necessary for downstream habitat | Court: Designation of unoccupied habitat was proper; FWS showed areas are "essential" and occupied habitat alone would be inadequate |
| Whether NEPA applies to critical habitat designations (need for EIS) | FWS should have prepared an EIS for the 2010 rule | NEPA does not apply to critical habitat designations under controlling Ninth Circuit precedent | Court: NEPA claim barred by Douglas County; FWS not required to prepare an EIS for critical habitat designation |
Key Cases Cited
- Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) (NEPA does not apply to critical habitat designation)
- Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163 (2009) (statutory policy declarations are not operative law creating enforceable rights)
- Heckler v. Chaney, 470 U.S. 821 (1985) (decisions committed to agency discretion are unreviewable under APA)
- Amador County v. Salazar, 640 F.3d 373 (D.C. Cir. 2011) (permissive statutory language may be limited by context when standards constrain discretion)
- Ekimian v. INS, 303 F.3d 1153 (9th Cir. 2002) (agency refusals unreviewable where no manageable standard exists)
- San Luis & Delta-Mendota Water Authority v. Jewell, 747 F.3d 581 (9th Cir. 2014) (deferential review for agency scientific determinations)