807 F.3d 1031
9th Cir.2015Background
- The U.S. Fish and Wildlife Service (FWS) signed a 2006 Memorandum of Agreement (MOA) with non-federal water-right holders (SNWA, CSI, MVWD, Tribe) that included monitoring, flow-triggered pumping reductions, water dedications, and habitat-restoration commitments to protect the endangered Moapa dace during anticipated groundwater pumping ordered by Nevada (Order 1169).
- FWS prepared a programmatic Biological Opinion (Biop) under ESA §7 evaluating FWS becoming a signatory to the MOA and concluded that joining the MOA "is not likely to jeopardize" the continued existence of the Moapa dace; incidental take statements were deferred to project-specific (second-stage) consultations.
- Plaintiff Center for Biological Diversity (CBD) sued under the ESA challenging the Biop, arguing the Biop unlawfully relied on inadequate and unenforceable conservation measures, failed to use the best available science, and failed to evaluate foreseeable consequences (including take) of the action.
- The district court granted summary judgment to FWS and intervenors (SNWA, CSI). On appeal the Ninth Circuit addressed standing and the substantive ESA §7 challenges to the Biop.
- The Ninth Circuit held CBD had Article III standing as a plaintiff alleging procedural injury under §7, but it affirmed summary judgment for FWS, finding the Biop was not arbitrary and capricious.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing | CBD: procedural injury from a deficient Biop/MOA threatens members' interests in observing and protecting Moapa dace | FWS/SNWA/CSI: harm is caused by state-ordered non-federal pumping, not FWS; vacatur wouldn't redress harm | Held: CBD has standing as a procedural-violation plaintiff; reconsultation could influence agency decisions and redress interests |
| Enforceability of conservation measures (BLM issue) | CBD: MOA measures are effectively non-enforceable and thus cannot be relied on in jeopardy analysis | FWS: the MOA measures are the federal action (FWS signing the MOA) and are subject to ESA enforcement and reinitiation if not met; they are not mere external "cumulative effects" like in BLM | Held: MOA measures here are part of the federal action and are enforceable under ESA; BLM distinguished—no arbitrary reliance on unenforceable mitigation |
| Best available science | CBD: Biop relied on negotiated flow triggers not biologically grounded; FWS scientists expressed doubts that triggers (esp. 2.7 cfs) would protect dace | FWS: Biop used available hydrologic, habitat, and modeling data; where data were lacking it rationally projected effects; agency need not generate new data or adopt plaintiff's preferred approach | Held: Biop satisfied the "best available science" requirement; agency addressed scientists' concerns and reasonably supported its conclusions |
| ITS / scope of analysis (programmatic vs site-specific) | CBD: programmatic Biop must quantify and provide an Incidental Take Statement now; deferring ITS unlawfully avoids evaluating foreseeable take | FWS: execution of MOA alone does not cause pumping or take; programmatic Biop properly tiers to later project-specific consultations where ITSs will be issued if and when take is likely | Held: No ITS required at programmatic stage here; deferral was reasonable because the MOA execution does not itself cause take and site-specific details are needed to quantify incidental take |
Key Cases Cited
- Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., 698 F.3d 1101 (9th Cir.) (requirement that conservation measures treated as part of the federal action be enforceable under ESA)
- San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581 (9th Cir.) (procedures for consultation and formal consultation triggers under ESA §7)
- Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d 917 (9th Cir.) (definition and scope of "jeopardize" in ESA §7 analysis)
- Bennett v. Spear, 520 U.S. 154 (U.S.) (Biological Opinions are final agency actions reviewable under the APA)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S.) (standing principles for procedural injuries)
- Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29 (U.S.) (arbitrary and capricious standard under APA)
- Marsh v. Oregon Natural Res. Council, 490 U.S. 360 (U.S.) (deference to agency expertise; programmatic environmental review)
- Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059 (9th Cir.) (programmatic consultation and supplementation by project-specific analysis)