Center for Biological Diversity v. United States Bureau of Land Management
698 F.3d 1101
| 9th Cir. | 2012Background
- BLM approved the Ruby Pipeline Project, a 678-mile, 42-inch natural gas line crossing 2,291 federal acres and 209 streams with listed fishes.
- FWS Biological Opinion concluded no jeopardy or adverse modification but relied on a Conservation Action Plan (CAP) that was voluntary and not enforceable under the ESA.
- Petitioners argued the CAP was unenforceable and improperly treated as background cumulative effects, not as part of the proposed action.
- A Letter of Commitment outlined CAP funding and measures, but funding was partial and not tied to ESA penalties or enforceable ESA mechanisms.
- CAP measures were incorporated into FERC and BLM documents but were not integrated into the project’s formal section 7 action as enforceable mitigation under the ESA.
- The Biological Assessment, Final Environmental Impact Statement, and related materials show groundwater withdrawals (337.8 million gallons) could affect surface waters and listed fishes, but the Biological Opinion failed to analyze these groundwater effects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| CAP treated as cumulative effects | CAP benefits should be part of the action, not background effects. | CAP is voluntary, non-enforceable, and thus not part of the action. | Biological Opinion invalid; CAP cannot be treated as cumulative effects. |
| Enforceability of CAP under ESA | CAP should be enforceable under ESA to be considered in jeopardy analysis. | Cap measures are enforceable only through other statutes, not ESA. | CAP cannot be enforced through ESA; misuse leads to arbitrary decision. |
| Groundwater withdrawals as a relevant factor | Groundwater withdrawals may affect surface waters and listed species and must be analyzed. | Withdrawals are not a relevant factor or are de minimis. | Groundwater withdrawals were a relevant factor requiring discussion; omission renders the Opinion arbitrary. |
| Reliance on 2004 dry-ditch opinion | Relying on the 2004 opinion without updated analysis risks underestimating take. | Use of the 2004 opinion was reasonable and supported by safeguards. | Reliance was reasonable; no arbitrary error found in that aspect. |
| Quantification of Lahontan eggs and fry take | No numerical cap on eggs/fry take; insufficient justification for practicality. | Impracticability justified surrogate approach with clear geographic limits. | TA: Incidental Take Statement not arbitrary; surrogate limits acceptable. |
Key Cases Cited
- Pacific Coast Federation of Fishermen’s Associations v. National Marine Fisheries Serv., 265 F.3d 1028 (9th Cir. 2001) (jeopardy analysis: four factors; cumulative effects context)
- Motor Vehicle Manufacturers Ass’n v. State Farm, 463 U.S. 29 (Supreme Court 1983) (arbitrary and capricious standard for agency action)
- Marsh v. Marsh, 816 F.2d 1374 (9th Cir. 1987) (mitigation measures must be integrated into the project; reinitiation if not carried out)
- Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944 (9th Cir. 2003) (public-private conservation agreements; enforceability under ESA)
- Bennett v. Spear, 520 U.S. 154 (Supreme Court 1997) (ESA penalties and enforcement implications)
- TVA v. Hill, 437 U.S. 153 (Supreme Court 1978) (Congressional rejection of balancing species protection against agency mission)