Center for Biological Diversity v. Bureau of Land Management
833 F.3d 1136
| 9th Cir. | 2016Background
- Imperial Sand Dunes (BLM-managed) contain Peirson’s milkvetch, a listed threatened plant; BLM proposed reopening large areas to off‑road vehicle (ORV) recreation in a 2013 RAMP.
- The Center for Biological Diversity previously litigated BLM plans; earlier Biological Opinions and plans were found deficient, prompting new consultation and a 2008 critical‑habitat designation and a 2013 RAMP with a new Fish & Wildlife Service (FWS) Biological Opinion finding no jeopardy.
- The 2012/2013 consultations found ORV use could injure or kill milkvetch but FWS did not issue an Incidental Take Statement (ITS) for the plant.
- The Center sued challenging (inter alia) the absence of an ITS for the plant under the Endangered Species Act (ESA) and BLM’s air‑quality analysis under the CAA, FLPMA, NEPA, and APA.
- District court granted summary judgment to BLM on all claims except one procedural issue; Ninth Circuit reviews whether the ESA requires ITSs for plants and whether BLM’s air‑quality analysis was arbitrary and capricious.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ESA §7 requires an Incidental Take Statement (ITS) for threatened plants | ITS language uses “species,” so ITSs are required for plants as well as animals | ITSs track the §9 “take” prohibition, which applies to “fish or wildlife,” and plants are not subject to §9 takings; ITSs not required for plants | ITSs are not required for plants; statute read in context limits “take”/ITS to animals |
| Whether FWS’s omission of an ITS violated ESA consultation requirements | Omission deprived take limits and monitoring for milkvetch | §7’s ITS requirement only applies where §9 take prohibitions exist (animals); FWS practice excludes ITS for plants | Court affirms that FWS need not issue ITSs for plants; agency interpretation consistent with statute and practice |
| Whether BLM’s air‑quality/conformity analysis (CAA/FLPMA/NEPA) was adequate | BLM used unrealistic assumptions (no increase in visitors), inconsistent modeling, and improper PM‑10 soil methodology; failed to follow local Implementation Plan; ignored EPA/air district concerns | BLM’s assumptions were supported by evidence; agency may use different models where supported; soil sampling better reflects site conditions and implementation plan test is for “stabilized surface,” not general PM‑10 estimation; BLM considered and responded to agency comments | BLM’s analysis was not arbitrary or capricious; courts defer to agency expertise and substantial evidence supports BLM |
| Whether BLM ignored interagency comments (EPA/air district) and obligations under FLPMA/NEPA/APA | Agency disregarded substantive concerns and preferred methods from expert agencies | Lead agency (BLM) is responsible for its analysis, may reasonably adopt alternative methods and did respond to comments | Rejection: BLM acted within its discretion and adequately considered comments; APA standard not met by Center |
Key Cases Cited
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (administrative deference framework)
- Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687 (interpretation of "take" and ESA structure)
- Arizona Cattle Growers' Ass'n v. U.S. Fish & Wildlife Serv., 273 F.3d 1229 (9th Cir.) (relates §7 ITS to §9 take prohibitions)
- Center for Biological Diversity v. Salazar, 695 F.3d 893 (9th Cir.) (ITS may serve purposes beyond immunity from §9 liability)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (arbitrary and capricious standard for agency action)
- San Luis & Delta‑Mendota Water Auth. v. Jewell, 747 F.3d 581 (9th Cir.) (deference to agency scientific choices)