CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff-Appellant, v. U.S. FISH & WILDLIFE SERVICE; Sally Jewell, Secretary of the Interior, Defendants-Appellees, Southern Nevada Water Authority; Coyote Springs Investment, LLC, Intervenor-Defendants-Appellees.
No. 12-17530.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 11, 2014. Submission Vacated June 24, 2014. Resubmitted for Decision Sept. 9, 2015. Filed Sept. 17, 2015.
807 F.3d 1031
... aimed at discouraging improper towing and prevent[ing] illegal tows [] evinces a genuine motor vehicle safety concern.” Like a requirement that tow car firms post explanatory signs, upheld by the Fifth Circuit in VRC LLC, 460 F.3d at 615, the brochures required by the Permit Scheme promote safety by providing consumers with information that could reduce confrontation. Furthermore, the brochure requirement, like the fees and penalties provisions, enable the effectiveness and enforcement of the other safety-related provisions by ensuring that customers are aware of their rights, and so able to register complaints when they are violated. Cf. Prof‘l Towing, 965 F.Supp.2d at 1003.17
In sum, the Permit Scheme‘s record-keeping and brochure requirements fall within the FAAAA‘s safety exception, and are therefore saved from preemption.
V.
We reverse the district court‘s grant of summary judgment to the City as to section 3054(2)‘s business plan requirement, and remand to the district court for further proceedings consistent with this opinion. We otherwise affirm the district court‘s judgment.18
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
CTTA will bear the costs of appeal.
Ignacia S. Moreno, Assistant Attorney General, James J. Dubois, Coby Howell, Ellen J. Durkee, and Nina C. Robertson (argued), United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for Defendants-Appellees United States Fish & Wildlife Service and Sally Jewell.
Murray D. Feldman (argued), Holland & Hart, Boise, ID; Craig D. Galli, Holland & Hart, Salt Lake City, UT; Dana R. Walsh, Southern Nevada Water Authority, Las Vegas, NV, for Intervenor-Defendant-Appellee Southern Nevada Water Authority.
Kirk B. Lenhard, Scott M. Schoenwald, and Bradley J. Herrema, Brownstein Hyatt Farber Schreck, LLP, Las Vegas, NV, for Intervenor-Defendant-Appellee Coyote Springs Investment, LLC.
Before: MARY M. SCHROEDER and CONSUELO M. CALLAHAN, Circuit Judges, and ROBERT W. PRATT, Senior District Judge.*
OPINION
PRATT, District Judge:
This case concerns Defendant-Appellee U.S. Fish and Wildlife Service‘s (“FWS“) decision to enter into a Memorandum of Agreement (“MOA“) with several non-federal entities who were subject to a Nevada State Order mandating a groundwater pump test. FWS anticipated that the pump test may affect an endangered species, the Moapa dace, and worked with the parties to obtain an agreement to implement a variety of conservation measures in advance of the groundwater pump test. FWS conducted a formal consultation under the Endangered Species Act (“ESA“),
In this opinion, we resolve a challenge by FWS and Intervenors to CBD‘s standing. Because we conclude that CBD does have standing, we also resolve CBD‘s claims that the Biop was arbitrary and capricious because: (1) it unlawfully relies on conservation measures that are inadequate and unenforceable; (2) it was not based on the best available scientific information; and (3) it failed to evaluate all
I. BACKGROUND
A. The Statutory Scheme
The ESA “is a comprehensive scheme with the broad purpose of protecting endangered and threatened species.” Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., 698 F.3d 1101, 1106 (9th Cir. 2012) (hereinafter “BLM“) (citation and internal quotation marks omitted). This case centers on two provisions central to the ESA‘s protections: section 9, which imposes a blanket prohibition on the “take” of any endangered species,1
Section 7(a)(2) of the ESA requires every federal agency to “insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence2 of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species.”
During formal consultation, the FWS is obligated to use the “best scientific and commercial data available,”
B. The Moapa dace
The Moapa dace is a small, thermophilic fish found only in the Muddy River, and particularly in the warmer waters of the upper springs and tributaries of the Warm Springs area in Southeastern Nevada. Biop at 14-15. Reproduction occurs year-round and is confined to the upper, spring-fed tributaries where water temperatures vary from 84.2 to 89.9 degrees Fahrenheit. Id. at 15. Juveniles are found almost exclusively in the spring-fed tributaries, whereas adults, who have the greatest tolerance to cooler water temperatures, are also found in the mainstream of the Muddy River. Id.
The Moapa dace, a member of the North American minnow family, Cyprinidae, was listed as endangered under the Endangered Species Preservation Act of 1966 on March 11, 1967, and has been protected by the ESA since its inception in 1973. Native Fish & Wildlife, 32 Fed.Reg. 4001. Though critical habitat has not been designated for the species, FWS has assigned the Moapa dace the highest recovery priority because it is the only species in the genus Moapa, there is high degree of threat to its continued existence, and there is a high potential for its recovery. Biop at 14. Primary threats to the dace include non-native fishes, parasites, habitat loss from water diversions and impoundments, fire due to encroaching non-native plant species, and reductions to surface springflows resulting from groundwater development, which reduces spawning, nursery habitats, and the food base for the dace. Id. at 15.
In 1979, 106 acres of springs and wetlands located in the Warm Springs Area of the Upper Moapa Valley were designated as the Moapa Valley National Wildlife Refuge (“MVNWR“) for the protection of the endangered Moapa dace. Id. at 17-18. The thermal headwaters of the springs on the MVNWR are some of the most productive Moapa dace spawning habitat in the area. Id. at 18. The MVNWR consists of three units encompassing the major spring groups: the Pedersen Unit, the Plummer Unit, and the Apcar Unit (also known as Jones Spring). Id. In 2005, it was estimated that throughout the approximately 5.6 miles of habitat in the upper Muddy River system, the population of dace was about 1,300. Id. at 24. Approximately 95% of this total population occurs within one major tributary that includes 1.78 miles of spring complexes that emanate from the three major spring groups and their tributaries. Id. About 28 percent of the Moapa dace population was located on the MVNWR, while approximately 55 percent occupied the Refuge Stream, which is sup-plied
C. The parties, their water rights, and the State pump-test order
CBD is a non-profit corporation actively involved in species and habitat protection issues throughout North America and the Pacific. Its members and staff live, work, visit, and recreate in areas of Nevada that serve as Moapa dace habitat.
FWS is a federal agency that is part of the Department of the Interior. Its responsibilities include implementing the ESA and administering the National Wildlife Refuge System. Pursuant to Permit No. 56668, FWS owns a Nevada State water right certificate (the “FWS Water Right“) for a flow rate of not less than 3.5 cubic feet per second (“cfs“) as measured at the Warm Springs West flume for maintenance of the habitat of the Moapa dace and other wildlife purposes. The priority date for the FWS water right is August 15, 1991.
Several entities own permitted water rights with appropriation priorities senior to the FWS Water Right. SNWA is a political subdivision of the State of Nevada, which owns 9,000 acre feet per year (“afy“)5 of water rights (the “SNWA Water Rights“) with points of diversion within the Coyote Spring Valley hydrographic basin under Permit Nos. 49414, 49660-49662, and 49978-49987. CSI is a private landowner that owns 4,600 afy of water rights (the “CSI Water Rights“) with points of diversion within the Coyote Spring Valley hydrographic basin under Permit Nos. 70429 and 70430. The Moapa Band of Paiute Indians (the “Tribe“) owns 2,500 afy of water rights (the “Tribe Water Rights“) with a diversion rate of 5.0 cfs within the California Wash hydrographic basin6 pursuant to Permit No. 54075.
On March 8, 2002, the Nevada state engineer issued Order 1169, which held in abeyance all applications for additional groundwater appropriation from Coyote Spring Valley pending a study of the impacts of pumping groundwater pursuant to already-existing water rights. In particular, the state engineer ordered that several entities owning water rights in the area, including SNWA, CSI, and the Moapa Valley Water District (“MVWD“),7 engage in a minimum five-year study “during which at least 50% of the water rights currently
D. The Memorandum of Agreement
Prior to and after the issuance of Order 1169, FWS was concerned that groundwater pumping in Arrow Canyon (by MVWD), in the Coyote Spring Valley hydrographic basin (by SNWA and CSI), and in the California Wash hydrographic basin (by the Tribe), was causing or would cause spring flows to decline in the Warm Springs area, creating potentially negative effects for the Moapa dace. In 2004, FWS began meeting with the various water-rights holders to identify conservation measures to aid Moapa dace survival in light of the anticipated pump test. On April 20, 2006, FWS, SNWA, CSI, MVWD, and the Tribe executed the MOA at issue in this case, based on their “share[d] common interest in the conservation and recovery of the Moapa dace and its habitat,” as well as in each signatory‘s right to the “use and enjoyment of its water rights and entitlements.” In furtherance of this common interest, the MOA contains a variety of “monitoring, management and conservation measures,” which can loosely be grouped into two categories—measures designed to reduce pumping and dedicate water rights for Moapa dace conservation and measures designed to restore and improve Moapa dace habitat.
In the first category of conservation measures, the MOA signatories agreed that: (1) MVWD‘s Jones Water Right will be dedicated to maintaining in-stream flows in the Apcar Stream; (2) 460 afy of the CSI Water Rights, plus 5% of any future water rights obtained by CSI, will be dedicated to the survival and recovery of the Moapa dace and its habitat; and (3) pumping would be slowed or ceased at various sites if water flow, as measured at the Warm Springs West flume, fell below certain “Trigger Ranges.” In the second category of conservation measures, the MOA signatories agreed to provide funding for Moapa dace habitat restoration and recovery measures, including $750,000 from SNWA to restore Moapa dace habitat on the Apcar Unit; $125,000 from both FWS and SNWA to investigate effects of habitat change on the ecology of the Moapa dace; $50,000 from SNWA to construct fish barriers to help eliminate predatory fish from Moapa dace habitat; $25,000 from SNWA to implement programs to eradicate non-native fish in the Warm Springs area; and $50,000 per year for four years from CSI to FWS for restoration of Moapa dace habitat outside the boundaries of the MVNWR. The parties additionally agreed: (1) to establish a Recovery Implementation Program (“RIP“) to identify, prioritize, and fund measures designed to protect the Moapa dace and facilitate its recovery; (2) to establish a Hydrologic Review Team to coordinate
The MOA provides that the “Parties desire that FWS engage in consultation and prepare a formal biological opinion” under ESA § 7 prior to execution of the MOA. Although the MOA neither authorizes nor approves any groundwater pumping, it nonetheless states that FWS‘s consultation “shall consider the effects on the Moapa dace from the pumping of 9,000 afy under the SHWA Water Rights, 4,600 afy under the CSI Water Rights, and 2,500 afy by the Tribe ... together with the implementation of the monitoring, management and conservation measures” identified in the MOA.
E. The FWS Programmatic Biop
On January 30, 2006, FWS issued a document entitled “Intra-Service Programmatic Biop for the Proposed Muddy River Memorandum of Agreement Regarding the Groundwater Withdrawal of 16,100 Acre-Feet per Year from the Regional Carbonate Aquifer in Coyote Spring Valley and California Wash Basins, and Establish Conservation Measures for the Moapa Dace, Clark County, Nevada” (the “Biop“). The Biop provides:
This biological opinion evaluates, as the proposed action, the execution of the MOA by [FWS]. None of the activities included in the MOA will be implemented absent project or activity specific consultations. Since the MOA contemplates future groundwater development of up to 16,100 [afy], this total withdrawal and the potential effects to the Moapa dace are evaluated in this biological opinion. As part of the proposed action, the following biological opinion will evaluate the effects of the cumulative groundwater withdrawal of 16,100 afy from two basins within the regional carbonate aquifer to the federally listed as endangered Moapa dace at a programmatic level in light of the conservation measures proposed in the MOA.
Biop at 1.
Due to “the number of impending actions by different entities included in the proposed action,” FWS employed a tiered-programmatic approach in preparing its Biop. Id. at 2. Thus, the required consultation was intended to take place in two stages: the first stage (the January 30, 2006 Biop) would “evaluate landscape-level effects,” while a series of later second-stage Biops would “result[] in the completion of project-specific documentation that addresses the specific effects of each individual project.” Id. at 2-3. Under this approach, second-stage consultations performed for specific action items in the MOA would “tier” to the first-stage document by incorporating portions of it by reference. Id. at 3 (“Thus each action has
Consistent with its stated approach, the Biop analyzes anticipated effects on the Moapa dace from the cumulative withdrawal of 16,100 afy from the Coyote Spring Valley and the California Wash, finding that the “Moapa dace will be directly affected by the proposed groundwater withdrawals since those actions are likely to affect the spring flows upon which the dace depends.” Id. at 44-55. Among other things, the Biop opines that, if inflow at the Warm Springs gauge drops to 2.7 cfs due to groundwater pumping, the result could be 31% loss of spawning habitat at the important Pedersen Unit, though “much of the available spawning habitat on the Plummer and Apcar Units, and the Refuge Stream would not be as affected by groundwater pumping since they are lower in elevation and would continue to provide adequate spawning habitat.” Id. at 54-55. Additionally, reductions in temperature from loss of flow in the Pedersen Unit could also extend downstream and “further impact Moapa dace by restricting its reproductive potential and make it more vulnerable to catastrophic events such as wildfire.” Id.
The Biop next analyzes the anticipated effectiveness of the conservation measures in the MOA, noting that such measures “include the removal of non-native fishes, enhancing, and restoring habitat and restoring instream flows (Apcar Unit) to increase the amount of habitat available for use by all life stages of the species.” Id. at 55. The Biop predicts that the MOA‘s conservation measures will, among other things, “increase thermal habitat and the reproductive potential of the species in the Apcar and Refuge streams,” “reduce potential for fire and restore the overall spawning and rearing habitat sufficient to sustain several hundred Moapa dace on the Apcar Unit of the MVNWR,” “provide more secure habitat should water flows decline from groundwater development activities in the future,” “improve habitat throughout the range of the species,” “reduce the species vulnerability to catastrophic events,” and “expan[d] the species within its range and increase its current population size.” Id. at 59-60; see also id. at 56 (“The overall expected outcome of these measures is an increase in the species distribution and abundance throughout the range of the species.“). The Biop explains that since the MOA provides that most of the conservation measures would be implemented before significant groundwater pumping was to occur, the Moapa dace population would likely “respond positively, increasing in its distribution and abundance above current conditions. Therefore, the conservation benefits to the species would be realized prior to and would off-set the effect of groundwater development.” Id. at 126, 130.
In conclusion, the Biop states as follows: “It is [FWS‘s] biological opinion that [FWS] becoming signatory to the MOA, as proposed and analyzed, is not likely to jeopardize the continued existence of the endangered Moapa dace.” Id. at 61. Regarding an Incidental Take Statement (“ITS“), the Biop provides:
No exemption from Section 9 of the Act is issued through this biological opinion. The cumulative withdrawal of 16,100 afy from Coyote Spring Valley and California Wash is likely to adversely affect
listed species. However, the proposed action of signing the MOA, in and of itself, does not result in the pumping of any groundwater, and is one of many steps in the planning process for proposed groundwater withdrawal projects identified in the MOA and in the action area. Therefore, the Service has taken a tiered-programmatic approach in an attempt to analyz[e] the effects of the action. This programmatic biological opinion does not authorize any incidental take for programmatic impacts associated with the activities included in the MOA. The likelihood of incidental take, and the identification of reasonable and prudent measures and terms and conditions to minimize such take, is anticipated to be addressed in future project-specific consultations (second stage). These tiered-consultations would incorporate conservation measures outlined in the MOA at the specific project level. Any incidental take and measures to reduce such cannot be effectively identified at the programmatic level of the proposed action because of the number of impending actions by different entities and its regional scope. Incidental take and reasonable and prudent measures may be identified adequately through subsequent actions subject to section 7 consultation, and tiered to this programmatic biological opinion. Future site-specific projects that are in the Description of the Proposed Action section and identified in the MOA would require additional section 7 consultation (second stage) that would be tiered to this programmatic biological opinion.
Id. at 62.
F. Proceedings in District Court
On August 23, 2010, CBD filed a Complaint for Declaratory and Injunctive relief against FWS and Sally Jewell,9 asserting claims under § 7 of the ESA, the National Environment Policy Act, the National Wildlife Refuge System Improvement Act, and the Constitution‘s Property Clause. SNWA and CSI intervened in the action. On September 27, 2012, the district court granted summary judgment in favor of Defendants on all of CBD‘s claims, concluding that “[w]hether the action fails for lack of standing or for lack of merit, the actions simply may not stand because [CBD] challenges an agreement designed to aid, not harm, the Moapa dace.”
CBD appeals only the district court‘s grant of summary judgment on its ESA claim. In particular, CBD maintains that FWS‘s Biop violated § 7 of the ESA by: (1) failing to ensure against jeopardizing the continued existence of the Moapa dace; (2) failing to consider the best available scientific information; and (3) failing to evaluate all consequences of the action it purports to review.
II. STANDARD OF REVIEW
The district court‘s grant of summary judgment is reviewed de novo. Pac. Coast Fed‘n of Fishermen‘s Ass‘ns. v. U.S. Bureau of Reclamation, 426 F.3d 1082, 1090 (9th Cir. 2005). A Biop is a final agency action within the meaning of the Administrative Procedure Act (“APA“) and is reviewed under
Pac. Coast Fed‘n of Fishermen‘s Ass‘ns, Inc. v. Nat‘l Marine Fisheries Serv., 265 F.3d 1028, 1034 (9th Cir. 2001) (quoting Motor Vehicle Mfrs. Ass‘n v. State Farm, 463 U.S. 29, 43 (1983)). Under this standard, factual determinations must be supported by substantial evidence. Dickinson v. Zurko, 527 U.S. 150, 162 (1999). An agency action will be sustained if “the agency has articulated a rational connection between the facts found and the conclusions made.” Pac. Coast Fed‘n of Fishermen‘s Ass‘ns, 426 F.3d at 1090.
The arbitrary or capricious standard is a “highly deferential” standard of review, though our inquiry must nonetheless “be searching and careful.” Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989); Jewell, 747 F.3d at 601. The agency‘s decision, however, is “entitled to a presumption of regularity,” and we may not substitute our judgment for that of the agency.” Id. (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16 (1971)). This traditional deference to the agency is at its highest where a court is reviewing an agency action that required a high level of technical expertise. Marsh, 490 U.S. at 377.
III. DISCUSSION
A. Standing
FWS, SHWA, and CSI challenge our jurisdiction to hear the present appeal, arguing that CBD lacks standing. As the plaintiff in the underlying action, CBD has the burden of proving the existence of Article III standing at all stages of the litigation. See Nat‘l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 255 (1994). To fulfill this obligation, CBD must demonstrate: (1) the existence of an injury-in-fact that is concrete and particularized, and actual or imminent; (2) the injury is fairly traceable to the challenged conduct; and (3) the injury is likely to be redressed by a favorable court decision. Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1224-25 (9th Cir. 2008) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).
To satisfy the injury-in-fact requirement of Article III, “‘a plaintiff asserting a procedural injury must show that the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing.‘” Salmon Spawning, 545 F.3d at 1225 (quoting Citizens for Better Forestry v. U.S. Dep‘t of Agric., 341 F.3d 961, 969 (9th Cir. 2003)). Here, CBD alleges that its members have scientific, aesthetic, personal, spiritual and work-related interests in the continued survival of the Moapa dace and other species with habitats in the MVNWR. They are concerned that if the Moapa dace population is imperiled or permitted to decline, these interests will be harmed. We have previously held that the consultation procedures of ESA § 7 are designed to protect “concrete interests” such as those asserted by CBD by “advanc[ing] the ESA‘s overall goal of species preservation, and thus the groups’ specific goals as to [species] preservation, by ensuring agency compliance with the ESA‘s substantive provisions.” Salmon Spawn-ing, 545 F.3d at 1225-26; see also Lujan, 504 U.S. at 562-63 (“Of course, the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose[s] of standing.“).
While appellees do not dispute that CBD has alleged an injury-in-fact, they argue that causation and redressability are lacking. Specifically, appellees assert that any threat to the Moapa dace‘s survival is caused exclusively by non-federal entities pumping groundwater pursuant to a non-federal pump test order, not by the conservation measures in the MOA, which were designed to protect the species. As to redressability, appellees claim that CBD‘s injury is not redressable because the pump test, and its correspondent negative effects on the Moapa dace, could continue unabated even if the Biop and MOA were vacated.
“A showing of procedural injury lessens a plaintiff‘s burden on the last two prongs of the Article III standing inquiry, causation and redressibility.” Salmon Spawning, 545 F.3d at 1226 (citing Lujan, 504 U.S. at 572 n. 7). Thus, because CBD is asserting a procedural injury, it ” ‘must show only that [it has] a procedural right that, if exercised, could protect [its] concrete interests.‘” Id. (emphasis in original) (quoting Defenders of Wildlife v. U.S. EPA, 420 F.3d 946, 957 (9th Cir. 2005)). “Plaintiffs alleging procedural injury can often establish redressibility with little difficulty, because they need to show only that the relief requested—that the agency follow the correct procedures—may influence the agency‘s ultimate decision of whether to take or refrain from taking a certain action. This is not a high bar to meet.” Id. at 1226-27 (internal citation omitted). Nonetheless, “the redressibility requirement is not toothless in procedural injury cases.” Id. at 1227.
While we agree that state-ordered groundwater pumping is an ultimate cause of CBD‘s injury, CBD more broadly claims that a legally deficient Biop caused FWS to execute an MOA that contained inadequate conservation, monitoring, and mitigation measures to ensure the continued existence of the Moapa dace in the face of such groundwater pumping. CBD contends its injury is redressable because if the Biop and MOA are vacated, FWS would be obligated to reinitiate consultation. According to CBD, this consultation, if conducted in compliance with the ESA § 7 procedures here challenged, “may influence [FWS‘s] ultimate decision as to whether to participate in the MOA,” and on what terms. Moreover, CBD contends that the MOA federalizes groundwater withdrawals by non-federal parties and that those withdrawals harm the Moapa dace and its members’ interests in the species. We agree with CBD that it has sufficiently demonstrated standing under these circumstances. See Natural Res. Def. Council v. Jewell, 749 F.3d 776, 783 (9th Cir. 2014) (en banc) (“Because Plaintiffs allege a procedural violation under Section 7 of the ESA, they need only show that, if the Bureau engages in adequate consultation, the DMC Contracts could better protect Plaintiffs’ concrete interest in the delta smelt than the contracts do currently.“); Alliance for the Wild Rockies v. U.S. Dep‘t of Agric., 772 F.3d 592, 598-99 (9th Cir. 2014) (concluding that an environmental group had standing to challenge federal agencies’ approval of non-federal helicopter flights that might harass Yellowstone grizzly bears).
B. Challenges to the Biop
1. Enforceability of conservation measures
CBD contends that the MOA fails to ensure against jeopardy to the Moapa
In BLM, we held that the ESA‘s statutory scheme requires that “a conservation agreement entered into by the action agency to mitigate the impact of a contemplated action on listed species must be enforceable under the ESA” to factor into a biological opinion‘s jeopardy determination. BLM, 698 F.3d at 1117. In that case, Ruby Pipeline L.L.C. (“Ruby“) sought a right-of-way to build a gas pipeline that would cross several thousand acres of federal land supporting numerous endangered and threatened fish species. Id. at 1106. FWS‘s analysis of the pipeline project determined it would adversely affect multiple endangered species and critical habitats. Id. FWS then evaluated “several ‘voluntary’ conservation actions Ruby had indicated it would facilitate implementing,” which were contained in a Conservation Action Plan (the “CAP measures“). Id. at 1109. Although the CAP measures contained no binding time line for implementation and were expressly not incorporated into the pipeline project plan,10 FWS deemed them “cumulative effects” that were “reasonably certain to occur” and found that they would “eventually contribute to the conservation and recovery of these fishes.” Id. In reliance on the CAP measures, FWS concluded that the pipeline project was “not likely to jeopardize the continued existence” or “adversely modify or destroy designated critical habitat” of listed species and it issued an ITS exempting the take of certain species from liability under ESA § 9. Id. at 1109-12, 1119.
We concluded that the CAP measures were not cumulative effects; instead, they were “unequivocally interrelated” to the pipeline project “in that the promises regarding the conservation measures were dependant on approval of the project.” Id. at 1118. In fact, the CAP measures “fit squarely within the definition of ‘conservation measures’ in the ESA Handbook.” Id. at 1118. Since interrelated actions are, by definition, part of the “effects of the action,” we set aside the biological opinion as arbitrary and capricious:
[M]iscategorizing mitigation measures as ‘cumulative effects’ rather than conservation measures incorporated in the proposed project profoundly affects the ESA scheme. Any such miscategorization sidetracks the FWS, the primary ESA enforcement agency; precludes reopening the consultation process when promised conservation measures do not occur; and eliminates the possibility of criminal penalties and exposure to citizen suit enforcement incorporated in the ESA to assure that listed species are protected.... Severing the Conservation Action Plan measures from the proposed action and instead treating their anticipated benefits as ‘cumulative effects’ of independent origin insulated the action agencies from consultation requirements under section 7, and Ruby from the ESA‘s penalties for unlawful take under section 9 in the event that the measures never materialized.
The Biological Opinion therefore unreasonably relied on the [CAP] measures as “cumulative effects” and took them into account in the jeopardy determination, when reliance on them would have been proper only if they were included as part of the project and so subject to the ESA‘s consultation and enforcement provisions. Id. at 1116, 1119.11
The present case is plainly distinguishable from BLM. Here, the conservation measures in the MOA are not only “included as part of the project” consulted upon; they actually are the project consulted upon. Indeed, pursuant to the ESA regulations, the only activity reviewed in the Biop that even arguably qualifies as an “action” is FWS becoming signatory to the MOA. See
The negative effects of groundwater pumping also do not qualify as “effects of the action” by virtue of being “interrelated or interdependent with [the action].” Indeed, the record does not support a conclusion that would satisfy the “but for” test of interrelatedness, i.e., “but for the federal project [(execution of the MOA)] these activities [(groundwater pumping)] would not occur.” BLM, 698 F.3d at 1113 (quoting Sierra Club v. Marsh, 816 F.2d 1376, 1387 (9th Cir. 1987));
2. Best available science
The ESA requires an agency to use “the best scientific and commercial data available” when formulating a Biop.
CBD argues that the Biop fails to satisfy the best science requirement because FWS has “conceded that the Conservation Measures’ flow reduction trigger scheme—the foundation for the [Biop‘s] no jeopardy finding—is based not on science but on expediency.” In support of this claim, CBD cites a statement by FWS Office Field Supervisor Bob Williams that the flow reduction triggers in the MOA “were negotiated, not biologically based, and believed to be reasonable for the purpose of off-setting the affects to the species.”14 We reject this argument because it fails to differentiate between FWS‘s role as the action agency and FWS‘s role as the consulting agency. The ESA does not require that a federal agency design or plan its projects using the best science possible.
Rather, the ESA requires that, once a federal action is submitted for formal consultation, the consulting agency must use the best scientific and commercial evidence available in analyzing the potential effects of that action on endangered species in its biological opinion. See
3. Effectiveness of conservation measures
CBD argues that the Biop is arbitrary and capricious because the record does not support a conclusion that the MOA‘s conservation measures are effective or adequate to insure against jeopardy to the Moapa dace. CBD also asserts that we owe no deference to the Biop‘s conclusions because FWS failed to address its own “scientists’ unanswered and uncontroverted concerns” regarding the effectiveness of the MOA‘s conservation measures in avoiding jeopardy to the Moapa dace.15 Before
First, CBD criticizes the MOA‘s flow triggers, and particularly the lowest 2.7 cfs flow trigger, which if reached, requires the MOA signatories to reduce pumping in the Coyote Spring Valley and the California Wash to 724 afy and 1,250 afy, respectively. CBD points out that in a separate § 7 consultation relating to construction of a pipeline (the “pipeline project“) in the MVNWR, FWS hydrologist Tim Mayer expressed “strong doubt” about whether even a higher 3.0 cfs minimum flow threshold would adequately protect the Moapa dace or support a non-jeopardy determination, stating: “Biologically, do the flows proposed by SNWA protect the dace (does it support a non-jeopardy opinion)? We have no evidence that they do, since they have not been that low previously. Our proposed flows (of 3.3 cfs) seek to protect existing conditions so we assume that it won‘t jeopardize the species.” CBD also points out that the FWS Water Right was already being impacted by pre-MOA groundwater pumping, and that even the intermediate flow triggers of the MOA, ranging from 2.8 to 3.2 cfs, permit more groundwater to be pumped than was pumped prior to the MOA.
CBD‘s second critique of the Biop is that it assumes, without any support, that reducing or halting groundwater pumping will address any observed decline in spring flows. According to CBD, this conclusion is the “linchpin” of the Biop‘s no jeopardy conclusion because if Moapa dace habitat will continue to be lost after the cessation of groundwater pumping, the conservation measures of the MOA are ineffective. CBD points to three draft comments by FWS‘s scientists in this regard that it claims were not addressed in the final Biop. First, hydrologist Tim Mayer stated: “I don‘t want to be put in a position of saying that the flows are going to stop declining at 2.7 cfs—this seems to be the conclusion of our BO and our basis for the non-jeopardy although the hydrological analysis doesn‘t say anything like that.” Second, Mayer stated in a comment on the pipeline project that “stopping pumping at 2.7 cfs doesn‘t mean the flow reductions cease—springs may continue to decline even without pumping.” Third, Rick Wadell, whose position with FWS is unclear, stated in comments to the Biop that “[i]mpacts to the dace population may occur more rapidly than the water supply can be re-established.”
Finally, CBD urges that the other conservation measures of the MOA, i.e., those unrelated to flow triggers, “are of limited effectiveness in avoiding loss of high quality Moapa dace habitat in the higher elevation Pedersen Unit spring complex.” For instance, one FWS scientist expressed concern that MVWD‘s dedication of 1.0 cfs to the Apcar Unit was “being oversold.” Another FWS scientist noted that it was unclear how CSI dedicating 460 afy would benefit the dace unless it could be “transferred to in-stream rights for dace ... the small reduction in pumping from carbonates that this dedication might represent would only delay the impact a short time.”16
a. The Biop did not ignore the concerns of FWS scientists
We disagree with CBD‘s assertion that the Biop fails to address or assuage Mayer‘s concerns that even a 3.0 cfs flow rate would be insufficient to protect the
The Biop also does not, as CBD contends, assume with no support that reducing or ceasing groundwater pumping will slow the decline in spring flow at the Warm Springs West flume. While the Biop explicitly recognizes that “the response of the aquifer to a reduction or cessation of pumping is not known and has not been tested,” Biop at 46, FWS still possessed sufficient data to make an informed prediction. As noted, the Biop provided an extensive evaluation of the regional carbonate aquifer system. Biop at 15-17. In so doing, it explains that “[g]roundwater inflow or recharge” to the system is “primarily through precipitation.” Biop at 16. Consistent with this understanding of the system‘s most likely recharge source, the Biop also recognizes that “groundwater levels have generally increased recently, likely in response to the extremely wet winter experienced by the region in 2005.” Id. at 48. After exploring the currently observed groundwater impacts and trends and a variety of flow models, the Biop then assumes a correlation between groundwater withdrawals and a decline in water levels in the system. Given this data, there was clearly a rational connection between the data available to FWS and its “assum[ption] that reducing and ceasing the pumping will slow the decline in water levels.” Id. at 46-47.
Because the record does not support a conclusion that FWS ignored its own scientists’ concerns, we reject CBD‘s best science claim in this regard. The claim additionally fails because CBD has not pointed to any evidence supporting a conclusion that: (1) the “concerns” of FWS scientists were supported by better science that used in the Biop; or (2) FWS disregarded scientific information that was better than the evidence upon which it relied.
b. The Biop‘s no jeopardy conclusion was proper
In National Wildlife Federation v. National Marine Fisheries Service, we stated:
To “jeopardize“—the action ESA prohibits—means to “expose to loss or injury” or to “imperil.” Either of these implies causation, and thus some new risk of harm. Likewise, the suffix “-ize” in “jeopardize” indicates some active change of status: an agency may not “cause [a species] to be or to become” in a state of jeopardy or “subject [a species] to” jeopardy. American Heritage Dictionary of the English Language (4th ed.). Agency action can only “jeopardize” a species’ existence if that agency action causes some deterioration in the species’ pre-action condition.... [A]n agency only “jeopardize[s]” a species if it causes some new jeopardy. An agency may still take action that removes a species from jeopardy entirely, or that lessens the degree of jeopardy. However, an agency may not take action that will tip a species from a state of precarious survival into a state of likely extinction. Likewise, even where baseline conditions already jeopardize a species, an agency may not take action that deepens the jeopardy by causing additional harm.
As we explained supra, the only “action” in this case, as that term is defined by the ESA and its implementing regulations, is FWS‘s participation in the MOA. CBD does not, however, point to a single provision in the MOA that causes even a de minimus deterioration in the Moapa dace‘s pre-action condition. Indeed, the Biop makes clear that the negative effects to the Moapa dace discussed therein are the result of State-mandated groundwater pumping—which under the facts of this case fit squarely within the ESA‘s definition of “cumulative effects.”
CBD‘s objections to the Biop and MOA in this case can appropriately be characterized as claiming that the MOA does not do enough to ensure the survival of the
We additionally conclude that CBD has failed to demonstrate that the Biop‘s no jeopardy conclusion is arbitrary and capricious because CBD has not shown that the action, even together with the cumulative effects, causes jeopardy to the “continued existence” of the Moapa dace.
4. Consideration of scope of federal action at issue
CBD argues that, by failing to issue an ITS, FWS acted arbitrarily and capriciously by failing to evaluate all foreseeable consequences of the proposed action. In particular, CBD objects to the Biop‘s deferral of analysis of potential take until second stage consultations, contending that “if a jeopardy analysis is possible in a programmatic consultation, analysis and quantification of potential take through an incidental take statement ... must also be possible.”
Section 1536(b)(4) provides: ”If after consultation ... [FWS] concludes that—the taking of an endangered species ... incidental to the agency action will not violate [§ 1536(a)(2)‘s requirement that federal agencies avoid jeopardizing the continued existence of any endangered species] ... [FWS] shall provide the Federal agency ... with [an ITS].” (emphasis added). As we have stated, the “agency action” that is evaluated in the Biop is “the execution of the MOA by [FWS].” Biop at 62. While execution of the MOA presumes that groundwater withdrawals, and resultant take of Moapa dace, will occur consistent with Order 1169, the Biop correctly states that the execution of the MOA “in and of itself, does not result in the pumping of any groundwater.” Id. CBD points to no evidence that incidental take was likely to occur merely because FWS executed the MOA, and we do not believe the record supports such a conclusion. Thus, there was no necessity that FWS issue an ITS.18 See Ariz. Cattle Growers’ Ass‘n, 273 F.3d at 1233 (“We hold, based on the legislative history, case law, prior agency representations, and the plain language of the Endangered Species Act, that an Incidental Take Statement must be predicated on a finding of an incidental take.“). We also conclude that deferral of ITSs to second level analysis was appropriate based on the Biop‘s conclusion that “[a]ny incidental take and measures to reduce such take cannot be effectively identified at the programmatic level of the proposed action because of the number of impending actions by different entities and its regional scope.” See Gifford Pinchot Task Force v. FWS, 378 F.3d 1059, 1063-68 (9th Cir. 2004) (“We have previously approved programmatic environmental analysis supplemented by later project-specific environmental analysis.“); see also W. Watersheds Project v. Bureau of Land Mgmt., 552 F.Supp.2d 1113, 1139 (D.Nev. 2008) (finding deferral of an ITS to a tiered biological opinion “reasonable” where “[s]imilar to Gifford ... the biological opinion in this case does not contemplate actual action. Because no action is taking place at this time, no ‘take’ is occurring.... Thus, FSA will issue an ITS, if necessary, at the time a specific project is authorized.“).
IV. CONCLUSION
We find no evidence in the record that FWS relied on improper factors, failed to consider important aspects of the problem, offered explanations for its decision that were counter to the evidence before it, or offered implausible explanations for its decision. Accordingly, for the reasons ex-plained herein, FWS‘s determination that its participation in the MOA would not cause jeopardy to the Moapa dace was not arbitrary, capricious, or in violation of the Endangered Species Act. The district court‘s grant of summary judgment to FWS, SHWA, and CSI, is AFFIRMED.