Lead Opinion
Opinion by Judge NOONAN. Dissent by Judge FERGUSON.
Dеfenders of Wildlife and the Center for Biological Diversity (collectively Defenders) appeal the grant of summary judgment to the Army Corps of Engineers (the Corps). Defenders challenged the decision of the Corps not to consult with the Fish and Wildlife Service (the Service) on the effect on the Arizona cactus ferruginous pygmy-owl of two developments in Arizona. The district court found that the Corps’ ■ determination that the developments would have no effect оn the pygmy owl was not arbitrary or capricious. We affirm its judgment.
FACTS
The cactus ferruginous pygmy-owl, the bird at the center of our case, is described in National Ass’n of Home Builders v. Norton,
The Continental Reserve Permit. In December 1999, the Corps received a permit application under the Clean Water Act, 33 U.S.C. § 1344 (a Section 404 permit application), for the Continental Reserve project, a 598-acre property being developed in the town of Maraña, Arizona. Continеntal Reserve is a master-planned community with single-family residences, a 9-acre community park, a 10-acre elementary school site, and large areas of undisturbed open space.
The Service objected to the Corps’ preliminary determination that the project would not affect federally listed species or their critical habitat and that formal consultation under Section 7 of the Endangered Species’ Act (ESA), 16 U.S.C. § 1536(a)(2), 50 C.F.R. § 402.14, would not bе required. The Service contended that “this particular project area serves as a movement corridor for the [pygmy-owl] and likely provides nesting, roosting, and foraging habitat.”
On March 22, 2001, the Corps issued its Environmental. Assessment, finding that the proposed activities would have no impact on the pygmy-owl or adjoining habitat. On that same date, it issued the Section 404 permit to Continental Reserve. After the permit had been issued, the Service continued to objeсt, requesting formal consultation and notifying the Corps that it did not concur in its “no effect” determination.
The Entrada del Oro Permit. On November 22, 2000, Grosvernor Holdings (Grosvernor), a property owner, submitted a request to the Corps for an individual Section 404 permit under the Clean Water Act for the Entrada del Oro project.. En-trada del Oro is a master planned community in Pinal County, Arizona, comprised of 440 acres which will contain single family residences, parks, a school site, and open spaсes.
On November 15, 2001, the Corps issued its Environmental Assessment for the En-trada del Oro project. The Corps noted that it had withdrawn its initial request for consultation with the Service after the
PROCEEDINGS
Defenders filed suit against the Corps under the ESA, 16 U.S.C. § 1536(a)(2), 50 C.F.R. § 402.14, and the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706. Defenders challenged the Corps’ “no effect” determinations and its decisions to forgo Section 7 consultations with the Service regarding the Continental Reserve and Entrada del Oro projects under the ESA.
Grosvernor filed a motion to intervene as of right under Fed.R.Civ.P. 24(a)(2). The court granted the motion as to the remedial phase of the litigation, but denied it as to the liability phase.
The parties filed cross-motions for summary judgment. On August 18, 2003, the court issued two orders granting the Corps’ motions as to its permitting decisions for Continental Reserve and Entrada del Oro. The court noted that “the ■ ‘no effect’ determination was a decision for the Corps to make, not the USFWS.” The court found that
based upon the best scientific and commercial evidence in the administrative record and the Corps’ contemporaneous explanations for their ‘no effect’ determination, it is clear that the Corps considered the relevant factors based upon the voluminous data before it, reasonably rejected the undocumented assertions made by the USFWS, and articulated a rational connection between the facts and its decision to make a ‘no effect’ determination. . ' ■
On August 18, 2003, the court entered final judgment against Defenders. This timely appeal followed.
ANALYSIS '
Jurisdiction. Grosvernor and amici challenge our jurisdiction arguing that the Defenders lack standing. They have, however, as the district court held, sufficiently established Their members’ interest in the Arizona pygmy-owl; that the Corps’ decisions arguably may affect the bird and what may be its habitat; and that-a-contrary decision would have led to a remedy. Even now the case is not moоt becausé a court could design a remedy to provide protection for the bird.
The Action" Agency’s Responsibility. Regulations under the ESA provide:
Requirement for formal consultation. Each Federal agency shall review its actions at the earliest possible.time to determine whether any action may affect listed species or critical habitat. If such' a determination is made, formal consultation is required, except as noted in paragraph (b) of this section. The Director [of the Fish and Wildlife Service] may request a Federal, agency to enter into -consultation if he identifies any action of that agency that may affect listed species or critical habitat and for which there has been no consultation. WThen such a request is made, the Director shall forward to the Federal agency a'written explanation of the basis for the request.
50 C.F.R. § 402.14(a). The Service can request the action agency to enter into formal consultation. Nothing in the regulations mandates the action agency to enter into consultation after it receives such
Although the Service will, when appropriate, request consultation on particular Federal actions, it lacks the authority to require the initiation of consultation. The determination of possible effects is the Federal agency’s responsibility. The Federal agency has the ultimate duty to ensure that its actions are not likely to jeopardize listеd species or adversely modify critical habitat. The Federal agency makes the final decision on whether consultation is required, and it likewise bears the risk of an erroneous decision.
51 Fed.Reg. 19926, 19949 (June 3, 1986). This court has come to the same conclusion. See Southwest Center for Biological Diversity v. U.S. Forest Service,
The “No Effect” Rulings. Our decision in National Ass’n of Home Builders v. Norton,
Grosvemor’s Appeal Our disposition of the casе makes it unnecessary to decide Grosvernor’s appeal from the judgment limiting its intervention.
For the reasons stated, the judgment of the district court is AFFIRMED.
Notes
. On November 12, 2003, the National Association of Home Builders filed a request for entry of final judgment with the district court, urging "entry of judgment pursuant to the Ninth Circuit's decision that declares unlawful and vacates the Listing Rule.” Order of the district court in National Ass’n of Home Builders v. Norton, CV 00-0903 (D.Ariz.), June 28, 2004. The district court took over six months to rule on this motion and then denied it in the above-referenced order, which has been supplied to us by Defenders. The district court acknowledged that the error detected by the Ninth Circuit in the listing rule was substantive, not procedural, and normally a substantially erroneous listing should be vacated. Citing to two decisions of other district courts, the district court held that it had the power to decline to set aside the listing. The court held that if it vacated the rule "the twenty to forty birds comprising the Arizona pygmy-owl population would be entirely without рrotection under the ESA during the remand period.”- The court did not note the interest of the victorious plaintiffs in having the listing declared void. The court remanded to the Service without vacating the rule and without setting a time table for action by the Sendee. This result was all the more remarkable in that, as the court observed, the Service had indicated that "its attempts to continue its research regarding the pygmy-owl population in Arizona may be delayed by budgetary restraints, suggesting that the period without protection could be lengthy.” As the court also noted, the Service had not objected to the vacating of its rule. Opposition to that came only from Defenders, an intervenor in the case. The upshot is that a listing rule that this court found to be arbi-traiy and capricious on August 19, 2003 is still alive in Arizona in April 2005 with no foreseeable termination in sight.
The history is also instructive on another point. In oral argument in this court it was speculated that our case was "a turf war” between the Service and the Corps. It may have been so at the start. But the Service appears to be hors de combat. The case is between the Corps and the nongovernmental appellant.
Dissenting Opinion
dissenting:
In tersely affirming the District Court’s judgment, the majority ignores the plain language of the Endangered Species Act’s (“ESA”) implementing regulations, trivializes the vital process of inter-agency consultation, and ultimately drives closеr to extinction the few existing Arizona pygmy-owls. The Army Corps of Engineers’ (the “Corps”) decision to forego consultation with the Fish and Wildlife Service (the “Service”) was both arbitrary and capricious given the Service’s persistent and persuasive objections to the two real estate developments. at issue. I must therefore dissent.
I.
The cactus ferruginous pygmy-owl (the “pygmy-owl”), a small bird, is about 6.75 inches tall and weighs between 2.2 and 2.6 ounces on average. Determinatiоn of Endangered Status for the Cactus Ferruginous Pygmy-Owl in Arizona, 62 Fed.Reg. 10730, 10730 (Mar. 10, 1997). “[It] is one of four subspecies of the ferruginous pygmy-owl” whose range extends “from lowland central Arizona south through western Mexico, to the States of Colima and Michoacan, and from southern Texas south through the Mexican States of Tamaulipas and Nuevo Leon.” Id. Pygmy-owls are considered non-migratory throughout their range and typically fly from tree to tree instead of on long single flights. Land Options L.L.C., DRAFT BIOLOGICAL ASSESSMENT: ENTRADA DEL ORO '20 (Aug. 9, 2001). They аre capable of flying only short distances up to 100 feet or more over undisturbed vegetation. Letter from the U.S. Fish and Wildlife Service to the U.S. Environmental Protection Agency (Oct. 18, 2002).
The Arizona pygmy-owls are a distinctive lot. Unlike the pygmy-owls in Texas and Mexico, they have unique plumage and occupy- desertscrub and thornscrub habitats. Determination of Endangered Status for the Cactus Ferruginous Pygmy-Owl in Arizona, 62 Fed.Reg. at 10731. They are also subject to unique dangers. “Riverbottom forеsts and bosques, which supported the greatest abundance of [Arizona] pygmy-owls, have been extensively modified and'-destroyed by clearing, urbanization, water management, and hydrological changes.” Id. at 10740. In southern Arizona in particular, the actual loss and fragmentation of riparian habitat and the potential loss of additional habitat and movement corridors have contributed to a significant decline in the total Arizona pygmy-owl population frоm 36 in 2001 to just 18 in 2002. Id. at 10735, 10741; see also Proposed Designation of Critical Habitat for the Arizona Distinct Population Segment of the Cactus Ferruginous Pygmy-Owl, 67 Fed.Reg. 71032, 71032 (Nov. 27, 2002).
II.
The majority contends that we could affirm the judgment in this case based on Nat'l Ass’n of Home Builders v. Norton,
III.
Seсtion 7(a)(2).of the ESA directs all federal agencies, in consultation with the Service, to “utilize their authorities in furtherance of the purposes of this chapter by carrying out, programs for the conservation of endangered species and threatened species,” 16 U.S.C. § 1536(a)(1), and to “insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical habitat] of such species.” 16 U.S.C. § 1536(a)(2). The ESA’s implementing regulations further require a federal agency to complete formal consultation with the Service if the agency determines that any action on its part “may affect” any listed species or critical habitat. The federal agency.may complete informal consultation with the Service if the agеncy determines that any action on its part may affect, but is “not likely to adversely affect,” any listed species or critical habitat, and the Director of the Service concurs in writing to the agency’s determination. 50 C.F.R. §§ 402.13, 402.14(a).
The majority reads this statutory and administrative scheme as affording federal agencies absolute discretion to determine whether any actions on their part “may affect” any listed species or critical habitat. See Maj. op. at 1070 (quoting 51 Fed.Reg. 19926, 19949 (June 3, 1986)) (“[The Service] lacks the authority to require the initiation of consultation.”). “Nothing in the regulations,” the majority concludes, “mandates the action, agency to enter into consultation after, it receives such a request.” Id.
But while an action agency is not required by law to consult the Service, the minimum threshold for an action agency to initiate consultation is low. The “may affect” standard “must be .set sufficiently low to allow Federal agenciеs to satisfy their duty - to ‘insure’ under section 7(a)(2)[that species' are not jeopardized].” 51 Fed.Reg. 19926, 19949 (June 3, 1986). A federal agency “must initiate formal consultation if its proposed action ‘may affect’ listed species or" critical habitat. Any possible effect,- whether beneficial, benign, adverse, or of an undetermined character, triggers the formal consultation requirement ...” Id. at 19949 (emphasis added).
The question, then, is not whether the law mandates the Corps to consult the Service, but whether the Corps arbitrarily and capriсiously issued “no effect” determinations in the face of scientific evidence suggesting specific and serious effects of two real estate developments on the Arizona pygmy-owl. Put differently, the question is whether the Corps violated the plain meaning and intent of Section 7(a)(2) of the ESA by foregoing any consultation with the Service.
rv.
Under 5 U.S.C. § 706, we must set aside agency actions that are “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” United States v. Bean,
A.
In December 1999, the Corps granted a permit for a 598-acre property in Pima County, (southern) Arizona known as the Continental Reserve project. The development is adjacent to an area then-designated as an Arizona pygmy-owl critical habitat. The Corps determined that the development would have “no effect” on the Arizona pygmy-owl and issued the permit. The Service objected to the Corps’ decision contеnding specifically that “this particular project area serves as a movement corridor for the [Arizona] pygmy-owl and likely provides nesting, roosting, and foraging habitat.” The Corps nonetheless refused to initiate consultation.
Review of the administrative record reveals that the Corps’ decision to forego consultation with respect to the Continental Reserve project was both arbitrary and capricious. The Service has persistently objected to the Continental Reserve permit. It has pointed out that the development would (1) result in “the loss and fragmentation of upland and xeroriparian vegetation,” (2) lead to loss of “mesquite and palo verde trees and saguaro cacti which are components of [Arizona] pygmy-owl habitat,” and (3) “disrupt habitat connectivity ... hindering the ... movement corridor for the [Arizona] pygmy-owl.” The Service further underscored how the Continental Reservе area contains “those physical and biological features that are essential to the conservation of the species.” A “fragmented habitat [would] reduce 'the probability that local groups of [Arizona] pygmy-owls will recolonize naturally in order to offset population fluctuations and local population losses.” Proposed Designation of Critical Habitat for the Arizona Distinct Population Segment of the Cactus Ferruginous Pygmy-Owl, 67 Fed.Reg. at 71036.
Both the Biological Evaluation and the Environment Assessment that the Corps relied upon to render its “no effect” determination focused almost entirely on the fact that no Arizona pygmy-owl was physically located in the project area or in the immediate surrounding areas. But the actual physical presence of an Arizona pygmy-owl on or near the development is not the only way to establish a possible effect ■of the development on the species. The ESA implementing regulations make clear that “any possible effect,” even of “an undetermined character,” triggers consultation. 51 Fed.Reg. at 19949. The Corps ignored the Service’s scientifically compelling evidence demonstrating the effect of the Continental Reserve project on the potential habitat of Arizona pygmy-owls. The Corps had a duty to initiate consultation with the Service about this possible effect.
B.
In January 2001, the Corps granted a permit for a 404-acre property in Pinal County, (southern) Arizona known as the Entrada del Oro project. The development was located on an area then-designated as' an Arizona pygmy-owl critical habitat. The developer itself conceded that the property provided connectivity between the Arizona pygmy-owl breeding
Review of the administrative record again reveals that the Corps’ decision to change its assessment and forego consultation with respect to the Entrada del Oro project was both arbitrary and capricious. The Service pointed out that “because of the size of the proposed project!,] ... suitable [Arizona pygmy-owl] habitat present on site and adjacent areas, and the location of the project, [it][did] not believe adverse effects [were] not likely[,] ... insignificant!,] or discountable.” The developer’s own Biological Evaluation further noted that the Entrada del Oro project “does have potential nest cavities in saguaros and a few mesquite and.paloverde able to support pygmy-owls” and that “there is suitable habitat within the 440-acre property.”
The Corps has not shown .why the removal of the critical habitat designation in the Entrada del Oro area rationally eliminates the previously acknowledged effect of the development on loss of potential habitat fоr the Arizona pygmy-owl. The ESA implementing regulations make clear that formal consultation is triggered whenever an action “may affect listed species or critical habitat.” 50 C.F.R. § 402.14(a) (emphasis added). The Corps, and the majority, illogically imply that the presence of a critical habitat is necessary to trigger Section 7 consultation.
V.
At its core, this case is about exercising “institutionalized caution” in safeguarding endangered species. See Wash. Toxics Coalition v. EPA,