Center for Biological Diversity v. Salazar, 804 F. Supp. 2d 987

Background

ESA governs interagency consultation to prevent jeopardy and adverse modification of critical habitat; Fort Huachuca operations (2006–2016) examined for impacts on Huachuca water umbel and southwestern willow flycatcher in the upper San Pedro River; FWS issued 2007 BiOp finding no jeopardy or adverse modification; court reviews ESA §7 and APA claims via administrative record; prior related litigation addressed cumulative and mitigation issues; §321 Defense Authorization Act limits and frames consideration of water use in Fort Huachuca context; BiOp relies on mitigation and groundwater management measures with uncertain timing and funding.
The San Pedro River, including the SPRNCA, hosts the endangered umbel and flycatcher, with designated critical habitats and baseline hydrology; the umbel requires persistent base flows and stable riparian conditions; the flycatcher depends on dense riparian vegetation and is affected by base-flow reductions; groundwater pumping by Fort Huachuca threatens base flows and thus habitat suitability; USGS and BiOp documents show ongoing groundwater deficit and variable base flows that influence recovery prospects.
§321 limits on considering off-installation water use; BiOp concluded mitigated effects would keep base-flow reductions within natural variability; Army’s induced population is modeled via EIFS and regional population growth assumptions; interactive effects between pumping, discharge, and habitat are central to recovery arguments.
The court grants summary judgment for plaintiffs, holding that the 2007 BiOp violates the ESA and is arbitrary and capricious for multiple reasons including failure to assess recovery, reliance on uncertain mitigation, and inadequate use of best available science.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did BiOp assess recovery impacts on umbel and flycatcher?	BiOp failed to analyze recovery prospects.	BiOp analyzed survival and habitat without explicit recovery tipping points.	No recovery analysis, violates ESA.
Are mitigation measures sufficiently specific and certain?	Mitigation measures are uncertain, underfunded, and not clearly identified.	Mitigation measures described and funded over time; balance with best available science.	Mitigation insufficient; BiOp flawed.
Did BiOp use best available science, including climate change?	BiOp ignored climate-change data and over-relied on uncertain estimates.	BiOp relied on existing models and has justification for the data used.	BiOp failed to use best available science.
Was the shift from 2002 methodology to 2007 methodology proper?	Change lacks adequate justification and rational connection to impacts.	Change justified by improved scientific basis and accuracy.	Allowed but must be rationally connected to record facts.

Key Cases Cited

TVA v. Hill, 437 F. Supp. 2d 21 (9th Cir. 1978) (establishes ESA’s priority over agency missions; no jeopardy standard rooted in Congress’ intent)
Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059 (9th Cir. 2004) (recover y analysis and consideration of recovery in adverse modification)
National Wildlife Federation v. NMFS, 524 F.3d 917 (9th Cir. 2008) (recovery analysis required; tipping point considerations)
Wild Fish Conservancy v. Salazar, 628 F.3d 513 (9th Cir. 2010) (requires explicit recovery-focused evaluation in BiOps)
S. Yuba River Citizens League v. Nat'l Marine Fisheries Serv., 723 F. Supp. 2d 1247 (E.D. Cal. 2010) (importance of considering timing and magnitude of impacts on recovery)
Pac. Coast Fed'n of Fishermen's Ass'ns v. U.S. Bureau of Reclamation, 426 F.3d 1082 (9th Cir. 2005) (comprehensive analysis of environmental effects under ESA)
Sierra Club v. Marsh, 816 F.2d 1376 (9th Cir. 1987) (mitigation plans must be specific, enforceable, and adequate)
National Wildlife Fed'n v. Defenders of Wildlife, 551 U.S. 644 (2007) (highlights standards for agency action and recovery considerations)
Alpine Land & Reservoir Co. v. United States, 887 F.2d 207 (9th Cir. 1989) (requires rational connection between facts and conclusions)