Federal
Endangered Species Act
Section
7 (Consultation, Jeopardy and Critical Habitat)
Digest of Recent Case Law
November, 2002
by
Tara L. Mueller, Esq.
Deputy Attorney General
California Office of the Attorney General
Land Law Section, Oakland CA
The views herein expressed are solely those of the author,
and do not necessarily reflect the views of the California Attorney General,
the California Department of Justice, or any other California state agency.
A. Adverse Modification of Critical
Habitat Standard:
B. Reinitiation of Consultation.
C. Incidental Take Statements.
D. Substantive Challenges to Section 7
Consultations.
Case Summary
In this highly significant case, the
Fifth Circuit invalidated the Services’ definition of “adverse modification of
critical habitat” in the section 7 regulations (50 C.F.R. § 402.02). Plaintiff Sierra Club challenged the
Services’ failure to designate critical habitat for the Gulf sturgeon. The Services determined not to designate
critical habitat because they found that such designation would not be prudent
because it would not provide any additional benefit to the sturgeon. In making this finding, the Services relied
on their section 7 regulations, which define adverse modification of critical
habitat in a manner virtually identical to the jeopardy standard. “Adverse modification of critical habitat”
is a “direct or indirect alteration that appreciably diminishes the value of
critical habitat for both the survival and recovery of a listed species.” Similarly, “jeopardize the continued existence
of” means “to engage in an action that reasonably would be expected, directly
or indirectly, to reduce appreciably the likelihood of both the survival and
recovery of a listed species in the wild.”
50 C.F.R. § 402.02. The Sierra
Club contended that the regulatory definition of adverse modification facially
conflicted with the ESA.
The court first rejected the Sierra
Club’s argument that the regulatory definitions of adverse modification and
jeopardy impermissibly conflate the two statutory triggers for section 7
consultation. The court stated “[t]he
mere fact that both definitions are framed in terms on survival and recovery
does not render them equivalent,” because the adverse modification standard
focuses on the action’s effect on critical habitat, while the jeopardy standard
addresses the action’s effect on the species itself.
However, the court agreed with the
Sierra Club that the definition of adverse modification “set the bar too high”
in requiring that an action affect both the survival and recovery of the
species. The court noted that the ESA
defined “critical habitat” as areas that are essential to the conservation
(i.e. recovery) of listed species, not just survival. Thus, the court concluded, “[r]equiring consultation only where
an action affects the value of critical habitat to both the survival and
recovery of a species imposes a higher threshold than the statutory language
permits.”
The court also noted that the
regulatory definition of adverse modification makes it less likely that
critical habitat will be designated. The
court reasoned that:
[b]ecause of the higher threshold imposed by
defining the [adverse modification] standard in terms of both survival and
recovery, federal agencies would be required to consult with the Department of
the Interior less frequently than if the standard were defined in terms of
recovery alone. Because the jeopardy
standard already requires agencies to consult with the Department where their
actions would affect both the survival and recovery of a species, it is less
likely that the Services would discern additional benefit from designating
critical habitat. Consequently, the
Services are more likely to find designation “not prudent.”
The
court found this result to be in conflict with Congress’ intent that a “not
prudent” critical habitat finding only occur in “rare” or “limited”
circumstances. Therefore, the court concluded that the definition of adverse
modification was facially invalid.
The court then overturned the Services’
“not prudent” finding with respect to the critical habitat designation for the
Gulf sturgeon. The invalid regulation
“directly informed the Services’ conclusion that designation was not warranted
because the Services concluded that designation of unoccupied habitat was only
necessary for the recovery, not the survival, of the species. Additionally, the Services’ evaluation of
the merits of critical habitat designation was premised on the view that
consultation under the jeopardy standard is functionally equivalent to consultation
under the adverse modification standard, because both standards are defined in
terms of survival and recovery. Because
the court had concluded that the regulatory definition of adverse modification
was flawed, the court found the “functional equivalence” argument
untenable. Thus, the court concluded
that the Services’ failure to designate critical habitat for the Gulf sturgeon
was arbitrary and capricious.
Analysis
It is unclear how the Services intend to handle
critical habitat designations and section 7 consultations in the aftermath of
this opinion. Thus far, the Services
have not made any effort to revise their regulations. The Sierra Club decision establishes a lower threshold for
adverse modification than currently provided by the regulations. After Sierra Club, the Services must
conclude that adverse modification may or will occur if it may or will impair a
species’ prospects of recovery, not just survival. This means that formal section 7 consultation could be required
in more instances, and the Services could be required to issue more jeopardy
opinions, than under the current regulations.
The Sierra Club decision also clearly distinguishes the adverse
modification threshold for consultation from the jeopardy threshold, lowering
the bar for adverse modification below that of jeopardy.
This raises the question whether the
rationale the Fifth Circuit used to invalidate the adverse modification
definition also could be applied to the Services’ definition of jeopardy. This definition likewise requires impairment
of both a species’ survival and recovery prospects. The court’s reasoning that impairment of recovery alone is
sufficient, however, is based on the fact that critical habitat designation is
specifically designed to assist in species recovery. Therefore, the court’s reasoning may not be readily applied to
the jeopardy context.
Case Summary
This case addresses the scope of the
Services’ duty to reinitiate consultation on an incidental take permit (ITP) when
a new species is listed in the area subject to the ITP. The Environmental Protection Information
Center (EPIC) challenged the FWS’ failure to reinitiate consultation on an ITP
issued to Simpson Timber Company which authorized take of northern spotted owl
in connection with Simpson’s timber operations. After the FWS issued the ITP, it listed the marbled murrelet, and
the NMFS listed the coho salmon, as threatened species under the ESA. EPIC
argued that such reinitiation was required under the plain language of the FWS’
regulations, which require the FWS to reinitiate consultation on any federal
agency action over which it has ongoing discretionary involvement or control,
if a new species is listed that may be affected by the agency action. See 50 C.F.R. § 402.16.
The court held that when a federal
agency has authorized a private activity (as with an ITP), the question whether
reinitation of consultation is required when a new species is listed turns on
whether the federal agency “has retained the power to implement measures that
inure to the benefit of the protected species.” Citing Sierra Club v. Babbitt, 65 F.3d at1502, 1509 (9th
Cir. 1995). The court rejected the
argument that its decision in Pacific Rivers Council v. Thomas, 30 F.3d
1050 (9th Cir. 1994) provided the controlling standard for
reinitiation, because Simpson’s ITP was not analogous to the federal land and
resource management plans (LRMPs) at issue in Pacific Rivers Council. LRMPs are comprehensive management plans
that govern forest planning decisions on federal land. In contrast, the ITP involves federal
authorization of private action on private land, like the private right of way
agreement at issue in Sierra Club v. Babbitt.
Applying the Sierra Club v. Babbitt
standard to the facts of the case, the court noted that, although the FWS had
retained some general discretionary involvement and control over Simpson’s
permit, “nowhere in the various permit documents did the FWS retain
discretionary control to make new requirements to protect species that
subsequently might be listed as endangered or threatened.” This was true even though the permit
required Simpson to include in its timber harvest plans “designs to modify
silvicultural systems as appropriate to ensure compatibility with the habitat
requirements of other species found within Simpson’s ownership that are
considered sensitive by state and federal . . . agencies.” The court interpreted this passage to be
limited to currently listed species, not those that subsequently might be
listed.
In addition, the FWS had authority to
monitor Simpson’s compliance with the permit and require Simpson to correct any
deficiencies in permit compliance, to suspend the permit in the event of a
significant permit violation, and to modify the ITP’s mitigation program to
ensure that the program’s conservation goals were met. None of these provisions, the court stated,
“addresses the scope of the FWS’ authority to implement measures to benefit
species other than the spotted owl.” In
sum, none of the permit provisions gave the FWS power to reinitiate
consultation on Simpson’s northern spotted owl ITP to impose additional
measures to protect the marbled murrelet or coho salmon. The court noted that plaintiff’s remedy
instead was to sue Simpson for an unlawful taking of species under section 9 of
the ESA.
Analysis
This is an extremely result-oriented decision which
is inconsistent with the reinitiation of consultation regulations, and with the
purpose of the ESA. Fortunately, the
Services can circumvent the effects of this decision by including explicit
provisions in ITPs and ITP implementing agreements that reinitiation is
required whenever a new species is listed in any area covered by an ITP,
regardless of whether that species is covered by the ITP.
Case Summary
In this case the Arizona District Court
held that the U.S. Forest Service (USFS) violated the ESA by failing to
reinitiate consultation when it determined not to immediately implement
amendments to a national forest plan that required grazing allotments to be
monitored for impacts to the Mexican spotted owl. In 1996, the USFS had adopted amendments to its national forest
plan for eleven national forests in the Southwest Region, which required the
USFS to monitor forage use in certain specified areas to determine whether
forage use exceeded forage utilization standards. The amendments were intended to implement certain provisions of
the Mexican spotted owl recovery plan.
The USFS consulted with the U.S. Fish and Wildlife Service (FWS) on the
amendments in 1995, and the FWS issued a biological opinion which concluded
that the prior forest plan did not comply with the ESA, but that the amended
plan would comply if the amendments were implemented immediately.
Although the USFS initially agreed to
apply the monitoring requirements to each grazing allotment immediately, it
later determined to implement these requirements only after site-specific NEPA
review of each grazing allotment. Moreover,
the USFS indicated that if NEPA analysis had not been completed at the time a
grazing permit was due for renewal, the USFS would renew the permit under the
terms of the prior permit, absent any monitoring requirement.
The court held that the USFS was
required to reinitiate consultation with the FWS on its failure to implement
the monitoring requirements, because the USFS’ actions could affect the owl and
its habitat in a manner not considered in the FWS’ biological opinion. The court reasoned that:
While grazing may be only a small part of the
overall recovery plan for the owl, the Court finds that failure to implement
the new grazing standards not only in the interim period between the adoption
of the amendments and site-specific analysis, as anticipated by the Biological
Opinion, but also the failure to implement new standards even at the time of
renewal of grazing permits, are actions by the Forest Service which may effect
(sic) the owl and its habitat. The
Forest Service’s failure to reconsult is therefore contrary to the provisions of
the ESA.
Case Summary
This is a significant opinion that
could have broad ramifications for how the federal government protects
endangered and threatened species under section 7 of the ESA. The Ninth Circuit
held that the FWS may not issue an incidental take statement (ITS) in connection
with a biological opinion unless it can prove that a take will occur or is
reasonably certain to occur.
Furthermore, the court held that the FWS can only prove that a take will
occur when there is evidence that the listed species in question occupies the
specific area of land to which the ITS applies. Finally, the court held that, while the FWS need not precisely
quantify the level of incidental take that is authorized, it nevertheless must
articulate a connection between the amount of authorized incidental take and
the impacts of the activity, and provide clear guidelines for determining when
the level of take has been exceeded.
Plaintiffs challenged the FWS’ issuance
of ITSs associated with two “no jeopardy” biological opinions. The FWS prepared these biological opinions
in connection with the Bureau of Land Management’s (BLM’s) and U.S. Forest
Service’s (USFS’) authorization of cattle grazing on BLM and national forest
land allotments in Arizona. The BLM
biological opinion evaluated the impacts of cattle grazing on twenty species of
plants and animals on 288 allotments covering 1.6 million acres. The USFS biological opinion examined the
impacts of cattle grazing on several species on 962 allotments. However, the lawsuit only challenged the
ITSs issued for two of the BLM allotments, and 22 of the USFS allotments. Plaintiffs argued that the FWS’ issuance of
ITSs for these allotments was arbitrary and capricious because: (1) the FWS did
not prove that the species in question actually existed on these allotments and
that take therefore was reasonably certain to occur, and (2) the terms and
conditions of the ITSs were so vague and non-specific as to make compliance
impossible.
The Ninth Circuit agreed, upholding the
district court’s decision, on cross-motions for summary judgment, invalidating
all of the challenged ITSs. The Ninth
Circuit first rejected the FWS’ argument that “take” should be construed more
broadly in the context of section 7 than in the context of section 9. The court held that the structure of the ESA
and its legislative history clearly evidence Congress’ intent to enact one
standard for “take,” and that applying a broader definition of “take” in the
context of section 7 “would allow the Fish and Wildlife Service to engage in
widespread land regulation even where no Section 9 liability could be imposed.”
The court also rejected the FWS’
argument that it should be permitted to issue an ITS whenever it is possible
or likely that take will occur in the future. Again, the Court felt that Congress had spoken to the precise
question at issue, interpreting section 7(b)(4) of the ESA to require the FWS
to make a predicate finding that take will occur or is reasonably certain to
occur before it can issue an ITS.
According to the court, the mere “potential” for harm is
insufficient. The court then
invalidated all but one of the ITSs in question on the ground that the FWS had
failed to make the necessary showing of that incidental take would occur or was
reasonably certain to occur. In all
except one case, the FWS had not proven that the species actually existed on
the allotments. The court dismissed the
contention that the FWS should be able to issue an ITS if the land is capable
of supporting the species, stating that the ESA’s mechanism for protecting
unoccupied habitat is the critical habitat designation process. The court rejected the argument that the
Arizona Cattle Growers should be required to prove that the species does not
exist on the permitted area, both because this would require them to meet the
agency’s burden of proof, and because they would be required to prove a
negative.
The court invalidated the final ITS on
a different basis. The court held that,
while section 7(b)(4) does not require an ITS to include a numerical limit on
the level of authorized take, where no such numerical limit is specified, the
FWS must show that it could not practicably be obtained. Where habitat conditions are used as a
surrogate for defining the amount or extent of authorized incidental take, the
FWS must demonstrate a causal link between the impacts of the activity and the
level of authorized take of species before establishing conditions on such
take. In this case, the court held, the
FWS had not articulated a connection between a general requirement to improve
habitat conditions and the level of incidental take that would occur. In addition to the FWS’ failure to make this
showing, the court held that the FWS’ vague analysis left the issue of
compliance to the wildlife agency’s “unfettered discretion,” and did not allow
the applicant or the federal action agency to gauge their own compliance.
Analysis
Some argue that the Arizona Cattle
Growers case alters the standard for proving a violation of section 9,
requiring a dispositive showing that take will in fact occur. Although there is
some language in the opinion to support this contention, a careful reading of
the opinion reveals that the court’s holding is not nearly so sweeping. In fact, the court explicitly stated that
the FWS is not required to provide evidence of an actual taking incident to the
proposed land use. Id. at
1243. The court also upheld the
district court’s ruling that an ITS is “appropriate only when take has occurred
or is reasonably certain to occur.”
Id. at 1240; see also id. [“[a]bsent an actual or
prospective taking under section 9, there is not situation that requires”
an ITS]; id. at 1243 [before FWS can issue ITS, it must establish that
take is reasonably certain to occur] (emphasis added).
The court cited with approval National
Wildlife Federation v. Defenders of Wildlife, 23 F.3d 1508 (9th
Cir. 1994), in which the Ninth Circuit held that a plaintiff may obtain
injunctive relief to enforce the take prohibition by establishing a reasonable
likelihood of a future violation. Id.
at 1511. Finally, the decision turned
in part upon an interpretation of section 7(b)(4), which only authorizes an ITS
when the Service concludes that the
federal agency action and the “resultant” incidental take will not violate
section 7. Arizona Cattle Growers,
273 F.3d at 1242. Thus, it is
questionable whether the court’s reasoning can be applied to section 9
violations more generally.
However, the decision will likely have an
adverse effect on section 7 consultations.
Under the reasoning of the case, the Services will now be required to
make some kind of showing that take will or is reasonably certain to occur on
the particular land in question. Given
the broad geographic scope of many section 7 consultations (particularly those
involving public land - such as the millions of acres involved in this case)
and the agencies’ lack of resources to conduct site-specific review, such
site-specific analysis will be difficult at best. Instead, the Serivces may opt not to issue any ITS at all,
leaving species unprotected by any mitigation measures or other conditions on
implementation of the federal agency action. The opinion does leave the Services
with one other option: issuance of a jeopardy opinion based on cumulative
effect of the federal agency action as a whole, which would require the parties
involved to implement reasonable and prudent alternatives to the entire
action. Ironically, such an approach
could end up restricting land uses to a greater extent than would the issuance
of a generic ITS.
Case Summary
In a highly significant opinion, the
U.S. District Court for the Northern District of California preliminarily
enjoined the U.S. Navy’s use of Low Frequency Active Sonar (LFAS), which the
Navy had approved for use in as much as 75% of the world’s oceans. LFAS sends out intense low frequency sonar
pulses that travel hundreds of miles in order to detect quiet enemy
submarines. Plaintiffs claimed that the
approval of this new technology by the Navy and the National Marine Fisheries
Service (NMFS) would cause irreparable injury to a host of marine mammals and
other sea creatures, many of which are threatened and endangered, in violation
of the Marine Mammal Protection Act, National Environmental Policy Act and
Endangered Species Act (ESA). This
summary focuses on the district court’s ESA holding. Plaintiffs raised three arguments as to why the Navy’s and NMFS’
approval of LFAS violated the ESA: (1) the biological opinion’s conclusion that
LFAS would not destroy or adversely modify designated critical habitat was
based on an illegal regulation; (2) the incidental take statement (ITS) in the
biological opinion did not properly estimate the amount or extent of incidental
take; and (3) the biological opinion’s conclusion that LFAS will not jeopardize
the continued existence of listed marine species or destroy or adversely modify
designated critical habitat was arbitrary and capricious and contrary to the
best available science. The court
agreed with the plaintiff’s first two arguments and did not reach the third
argument.
With respect to the first argument, the
court agreed with the Fifth Circuit’s holding in Sierra Club v. U.S. Fish
and Wildlife Service, 245 F.3d 434 (5th Cir. 2001), in which the Court held
that the regulatory definition of “destruction or adverse modification” of
critical habitat illegally required consultation only where an action may
affect the value of critical habitat for both species survival and recovery. Instead, the Fifth Circuit held, the ESA
requires consultation where an action may affect a species’ recovery prospects
alone. The district court found that,
while the Fifth Circuit’s decision was not binding in the Ninth Circuit, its
reasoning was “cogent and persuasive.”
The district court agreed with plaintiffs that NMFS had improperly
relied on this illegal regulation in concluding that LFAS was unlikely to
adversely affect critical habitat for the Steller sea lion, Hawaiian monk seal,
and northern right whale. Therefore,
the court held, NMFS had failed to examine whether LFAS was likely to adversely
affect the recovery of these species, even if LFAS would not affect their
survival.
Next, the court held that NMFS’ ITS was
inadequate, for several reasons. First,
relying on Arizona Cattle Growers Assn. v. U.S. Fish and Wildlife Service,
273 F.3d 1229 (9th Cir. 2001), the court stated that NMFS was
required to include a trigger that, when reached, would result in an
unacceptable level of incidental take, thereby invalidating the “safe harbor”
from section 9 liability and requiring the parties to reinitiate
consultation. Ideally, this trigger
should be numeric, but where a numeric trigger is infeasible, the agency must
establish that “no such numerical value could be practically obtained.”
Here, the court held that NMFS had made
“no attempt at all to estimate the incidental take of threatened and endangered
species,” and instead sought to defer such estimate until it issued annual
letters of authorization for implementation of LFAS in specific regions and for
specific species. The court held that
NMFS could not simply assert that it was impracticable for it to issue an ITS
without more information about the times and locations of planned operations. Rather, NMFS was required to establish, with
supporting evidence, “that it would have been impractical to have included an
ITS specifying the amount [or] the extent of the incidental take,” and that
even where numerical values are impractical, an ITS “must include some
surrogate for defining the amount or extent of incidental take.” Since NMFS’ biological opinion for LFAS did
not contain any evidentiary justification for its failure to include an ITS,
the biological opinion violated the ESA.
The court also held invalid NMFS’
supplemental biological opinion, which addressed the proposed letter of
authorization for implementation of LFAS from August 16, 2002 through August
15, 2003. While the supplemental
biological opinion did include an ITS, it was incomplete because it did not attempt
to estimate the numbers of Hawaiian monk seals, Pacific gray whales, and
endangered and threatened sea turtles and salmon that might be taken. The court held that NMFS failed to provide
any evidence that it was impractical to obtain numeric estimates of take of
these species. Instead, NMFS had
skipped “to the next step,” arguing that it had provided an adequate surrogate
for estimating the level of incidental take.
In Arizona Cattle Growers, the Ninth Circuit held that the “use
of ecological conditions as a surrogate for defining the amount or extent of
incidental take is reasonable so long as these conditions are linked to the
take of the protected species.” 273
F.3d at 1250.
Here however, NMFS had not attempted to
link changes in environmental conditions to the taking of listed species. Rather, “[i]nstead of estimating the
incidental take, defendants essentially state that a taking of any individual
of that species within the [2 km] LFA mitigation zone and buffer zone will be
considered too much.” The court held
that
At first blush, it may appear that by setting [the]
trigger at one animal, defendants satisfied the purpose of the ITS, even
without attempting to provide an actual estimate of the likely amount of the
incidental take. On closer inspection,
however, defendants’ limitation of the trigger to an animal taken within the 2
km mitigation and buffer zone defeats the purpose of an ITS and lacks a
rational causal connection because it excludes most of the takes that will
occur. Just the other side of the 2 km
border, the received level of LFA sonar is 173 dB, at which about 70-75 percent
of the exposed animals would be taken.
And at forty miles away, the received level is still as high as 165 dB, at
which 50 percent of exposed animals would be taken. Yet, the causal connection to these takes is ignored under
defendants’ ITS for these species.
Instead, defendants’ approach focuses solely on where the take occurs,
not whether it was caused by LFA sonar.
Thus, the court held that plaintiffs
were likely to prevail on their argument that both the initial biological
opinion and supplemental biological opinion violated the ESA. Accordingly, the court issued a preliminary
injunction. However, the court held
that the scope of the injunction should be narrowly tailored in light of the
Navy’s arguments that a total ban on the use of LFAS would pose a hardship and
in light of the public’s “compelling interest in protecting national security
by ensuring military preparedness and the safety of those serving in the
military from attacks by hostile submarines.”
The court ordered the parties to meet
and confer on the precise terms of the preliminary injunction, keeping in mind
the court’s admonition that the injunction should reduce the risk to marine
mammals and endangered species “by restricting the sonar’s use in additional
areas that are particularly rich in marine life, while still allowing the Navy
to use this technology for testing and training in a variety of oceanic
conditions.” Additionally, the court
ordered the preliminary injunction to extend the coastal buffer zone beyond 12
nautical miles in certain areas; to include additional, interim Biologically
Important Areas; and to restrict sonar use in certain parts of the ocean and
during certain seasons when marine mammals and endangered species are more
likely to be present.
Analysis
This case is especially noteworthy for
its concurrence with the Fifth Circuit’s reasoning in Sierra Club v. FWS
that the regulatory definition of adverse modification of critical habitat is
unlawful. This issue has not yet been
addressed by the Ninth Circuit. The NRDC
case is also noteworthy for its reliance on the Arizona Cattlegrowers
case to invalidate an ITS that contained inadequate protections for listed
species. In contrast, the Arizona
Cattlegrowers court applied the same reasoning to invalidate an ITS that
contained more protections for listed species than the court felt could be
justified under the facts of that case.
The NRDC case also contrasts with the Arizona Cattlegrowers
case in that the parties do not appear to have addressed a threshold issue
adjudicated by the Arizona Cattlegrowers court: whether an ITS could be
justified at all. In Arizona
Cattlegrowers, the Ninth Circuit invalidated several ITS’s because the FWS
had failed to establish that take would or was reasonably certain to occur
based on the presence of listed species in the specific area in question. In NRDC, it appears that the presence
of listed species, and whether LFAS was reasonably certain to take listed
species, was not in dispute.
Case Summary
This case involves a section 7
challenge to a timber sale on national forest lands in Montana. The district court granted summary judgment for
the federal defendants, and the Ninth Circuit reversed, holding that the U.S.
Forest Service (USFS) failed adequately to analyze the cumulative effects of
the sale under NEPA and did not comply with section 7 of the ESA. The proposed sale involved 2.1 million board
feet of timber on 226 acres on the boundary of Yellowstone National Park in the
Gallatin National Forest. The area is
home to numerous endangered species and other wildlife.
Plaintiffs challenged the adequacy of
the Forest Service’s biological assessment (BA) for the proposed timber sale
with respect to its evaluation of the impacts of the sale on grizzly
bears. In particular, plaintiffs
alleged that the USFS and the U.S. Fish and Wildlife Service arbitrarily
restricted the scope of the “action area” evaluated in the BA. The ESA section 7 regulations require the
action area to include all areas directly or indirectly affected by the
proposed federal agency action, not just the immediate area. In this case, the area did not include a
sheep grazing allotment adjacent to the proposed sale. The BA acknowledged that bears would likely
be displaced by the proposed sale, but did not analyze the effects of the
grazing allotment on the displaced bears.
The record established that grazing allotments are bear “population
sinks” because bears that attempt to forage in these areas are routinely killed
by livestock owners. Instead of
including the sheep grazing allotment in the “action area,” the Forest Service
selected a “bear management subunit” that was originally designed to address
the effects of motorized access on bear habitat.
The Court agreed with plaintiffs that
the BA’s exclusion of the sheep grazing allotment from the action area analyzed
in the BA was arbitrary and capricious because there was no indication in the
record “that the Forest Service considered which areas would actually be
affected by the sale (by determining, for instance, where displaced bears might
wander).” Moreover, the USFS did not
attempt to correlate the area it chose to analyze in the BA with the definition
of “action area” in the ESA regulations.
The BA contained no discussion of scientific methodology, relevant
facts, or rational connections linking the potential impacts of the sale with
the boundaries of the bear management subunit.
Instead, the USFS’ decision to restrict its analysis to this area was
“presented as a conclusion, without support.”
Thus, the USFS failed to establish that it considered the relevant
factors in reaching its decision to restrict the action area to the bear
management subunit.
Analysis
This case re-emphasizes the importance
of federal agencies selecting an action area for purposes of a BA and
biological opinion that is defensible and makes biological sense.
Case Summary and Analysis
In a somewhat narrow decision, the
First Circuit Court of Appeals denied a preliminary injunction to halt Navy
training exercises on the island of Vieques.
The plaintiffs challenged the Navy’s training exercises as a violation
of section 7 of the Endangered Species Act (ESA), on the ground that the Navy
had failed to prepare a biological assessment (BA) for exercises undertaken
between August 2000 and December 2001.
The plaintiffs’ challenge was limited to this time frame because the
Navy had already prepared a BA and initiated formal consultation with the U.S.
Fish and Wildlife Service (USFWS) with respect to its long-term training
operations, which consultation was pending at the time the court rendered its
decision. Additionally, the Navy had
initiated, and the USFWS had completed, formal consultation on the training
exercises for the interim period.
Plaintiffs’ sole argument, then, was that the Navy had violated section
7 by failing to prepare a BA prior to initiating formal consultation for the
interim period.
The Court held that the Navy was not
required to prepare a BA, because the training exercises did not qualify as a
“major construction activity” triggering the need to prepare a BA. In reaching this conclusion, the Court
relied on the federal wildlife agencies’ joint section 7 implementing regulations,
and not the ESA itself. Section
402.12(b) of the regulations limit the requirement to prepare a BA to “major
construction activities,” but section 7 itself contains no such limitation. (Cf. 50 C.F.R. § 402.12(b) and 16 U.S.C. §
1536(c).)
In determining what qualifies as a
“major construction activity,” the Court looked to the National Environmental
Policy Act (NEPA), which defines the analogous term “major federal action” in
part as an action requiring preparation of an environmental impact statement
(EIS). Plaintiffs argued that, because
the Navy had prepared an EIS for its long-term training exercises, the interim
exercises similarly should qualify as “major” activity. The Court rejected this argument, holding
that because no EIS had in fact been prepared for the interim training
exercises, and because these exercises were materially different from the long
term exercises analyzed in the prior EIS (utilizing no live ordnance), the
interim exercises did not constitute a “major construction activity.”
The Court further held that, even
assuming the interim exercises did qualify as a “major construction activity”
requiring preparation of a BA, the “consultation package” the Navy had
submitted to the USFWS to initiate formal consultation on the interim exercises
could qualify as the “functional equivalent” of a BA. The Court observed that, under the section 7 implementing
regulations, the contents of a BA are discretionary, and that the Navy’s
consultation package contained much of the discretionary contents specified in
the regulations. The Court did not find
the Navy’s failure to consider two available scientific studies, or its failure
to complete several ongoing long-term studies, sufficient reason to conclude
that the consultation package was inadequate, at least at the preliminary
injunction stage of the proceedings.
Finally, the Court held that plaintiffs
had not adequately established the potential for irreparable harm. The Court distinguished this case from Tennessee
Valley Authority v. Hill, 437 U.S. 153 (1978), on the ground that here,
unlike the situation in TVA v. Hill, there was a “serious question” as
to whether plaintiffs would prevail on the merits. Thus, the Court held, it was proper for the district court to
require plaintiffs to “show potential for irreparable harm apart from the harm
that they argue is inherent in a procedural violation of the ESA’s consultation
requirements.” (271 F.3d at 34.) In this case, the Court felt that plaintiffs
had only pointed to “vague concerns” as to long term damage to the species from
the interim activities. (Id.)
However, there are at least two
problems with the Court’s reasoning regarding the inappropriateness of
injunctive relief in this case. First,
the Court’s apparent holding that procedural harm alone may not be sufficient
to warrant the granting of an injunction is inconsistent with the Ninth
Circuit’s approach to procedural harm under the ESA. (See Thomas v. Peterson, 753 F.3d 754, 764 [“[g]iven a
substantial procedural violation of the ESA in connection with a federal
project, the remedy must be an injunction of the project pending
compliance with the ESA”] (emphasis added).)
Similarly, the Water Keeper Court’s holding is in tension with
the courts’ approach to procedural harm in the NEPA context. Because NEPA is a purely procedural statute,
the requisite harm is always the failure to follow the requisite
procedures. (See Sierra Club v.
Marsh, 872 F.2d 497, 500 (1st Cir. 1989).)
Second, the Court seemed to be
insisting on a heretofore unprecedented level of proof, contrary to the U.S.
Supreme Court’s admonishment in TVA v. Hill that species protection is
to be given the “highest of priorities,” and the balance of hardships always
tips in favor of protecting endangered species. This species-protective principle is designed to be applied in
situations where the precise consequences to species are somewhat in
doubt. It is in just these kinds of
situations where the exercise of caution is most required, before irreparable
harm is done. Yet, the Court stated
that “[i]n the absence of a more concrete showing of probable deaths
during the interim period and of how these deaths may impact the
species, the district court’s conclusion that Water Keeper has failed to show
potential for irreparable harm was not an abuse of discretion.” (271 F.3d at 34 [emphasis added].) This is arguably a higher standard for
injunctive relief than is required even under section 9, which does not
necessitate a showing of death to individual members of the species; rather, a
showing of injury to species’ breeding, feeding or sheltering activities may
suffice. (See 50 C.F.R. § 17.3.)
The next passage of the opinion is
perhaps revelatory of the real motivations underlying the Court’s decision – and
a foreshadowing of how courts may be inclined to address endangered species
issues in a military context post-September 11. The Court specifically rejected plaintiffs’ argument, based on TVA
v. Hill, Strahan v. Coxe, 127 F.3d 155 (1st Cir. 1997)
and National Wildlife Federation v. Burlington Northern R.R., 23 F.3d
1508 (9th Cir. 1994), that Congress has already pre-determined that
the balance of hardships and public interest weighs heavily in endangered
species’ favor and takes precedence over federal agencies’ “primary
missions.” The Court stated that
“[w]hile these precedents direct us to give endangerment of species . . . the
utmost of consideration, we do not think that they can blindly compel our
decision in this case because the harm asserted by the Navy implicates national
security and therefore deserves greater weight than the economic harm at issue
in Strahan.” (271 F.3d at
34.) The Court declined to consider
plaintiffs’ arguments that the training exercises in question did not use live
ordnance (and therefore were less important for “military preparedness”), or
that alternative sites could be used to provide the same training opportunities
with fewer impacts to species. Instead,
the Court found the district court’s deference to the Navy’s judgment
appropriate, notwithstanding “that these arguments could have some merit.” (Id. at 35.)
Case Summary
In an opinion that has generated
significant press and political fallout, the District Court for the District of
New Mexico has invalidated a biological opinion (BO) issued by the U.S. Fish
and Wildlife Service (USFWS). The BO
found that continued operation of a Bureau of Reclamation (Bureau) water
project on the Rio Grande River would jeopardize the endangered silvery minnow,
but did not include any reasonable and prudent alternatives (RPAs) to such
operation. The court chastised the
Bureau and the USFWS for creating a crisis situation and for failing to
consider reasonable options for preventing jeopardy that the court previously
had indicated were available (namely, reducing deliveries to water districts
served by the project and making releases from the Heron Reservoir). Despite a serious drought, the Bureau had
continued to make full contract deliveries to the water districts and had
allowed the lower reaches of the Rio Grande to run dry, which the USFWS found
would likely result in the extinction of the silvery minnow.
The court stated that “[t]here appears
to be no precedent, and the parties have presented none, for a Court to affirm
a BO that has a finding of jeopardy with no RPA, especially where a Court has
signaled an agency that it has discretionary authority that it previously had
not considered using, and the agency then continued to refuse to utilize that
authority without adequate explanation.”
The court observed that the agencies’ (especially the Bureau’s)
continued footdragging had limited available options, and allowed the silvery
minnow to continue its downward spiral to extinction. The court held that “[w]hile it is acceptable under the ESA for
the federal agencies to consider the interests of others besides an endangered
species if they can at the same time avoid jeopardy to the endangered species,
it is not allowable for agencies to give paramount weight to the interest of
others when by doing so they have no proposal to avoid jeopardy.”
The court held that the agencies’
remedy was to invoke the “God Squad,” a seven-member cabinet-level committee
that has authority to decide whether a federal agency action may cause a
species to go extinct. In the meantime,
the court ordered the Bureau to release water for the endangered fish
consistent with an earlier biological opinion, pending reinitiation of consultation
with the USFWS and issuance of a new BO that includes RPAs which avoid
jeopardy, or alternatively, pending an exemption from the God Squad.
The case is now on appeal to the Tenth
Circuit Court of Appeals, which has granted a stay of the district court’s
decision pending a ruling on the merits.
Case Summary
An association representing pelagic
longline fishermen sued the National Marine Fisheries Service (NMFS), seeking
to enjoin NMFS regulations, promulgated pursuant to the Magnuson Stevens Act,
closing off their access to certain Atlantic Ocean fisheries to protect the
endangered leatherback sea turtle and threatened loggerhead sea turtle. The closure was based on a NMFS biological
opinion which concluded that continued operation of the Atlantic pelagic
longline fishery would jeopardize the continued existence of the leatherback
and loggerhead sea turtles. Plaintiffs
challenged the biological opinion on the ground that it ignored the best
available science and arbitrarily concluded that longline pelagic fishing would
cause jeopardy to the turtles.
Plaintiffs also argued that NMFS had arbitrarily and capriciously
singled out long line fishing over other activities that harmed listed sea
turtles, and that NMFS’ closure arbitrarily assigned the full burden of species
recovery to the longline fishermen. The
court rejected all of these arguments and granted summary judgment in favor of
NMFS.
First, the court held that NMFS did not
ignore the best available scientific and commercial information in arriving at
its jeopardy conclusion. Rather, the
court stated, NMFS considered the opinions of each expert peer reviewer, and
while it disagreed with one expert, it nevertheless altered the study to
reflect the peer reviewers’ suggestions.
Moreover, NMFS’ conclusions plausibly followed from the data before
it. The court noted that an agency’s
conclusion “need not be airtight or indisputable,” and that a court “may not
champion a competing interpretation of the data over the agency’s conclusion
that finds support in the record.”
The court also rejected plaintiff’s
substantive challenge to the biological opinion. Plaintiffs first argued that the opinion’s jeopardy finding was
arbitrary and capricious because NMFS applied its jeopardy analysis to all
subpopulations of leatherback sea turtles, one of which was not listed under
the Endangered Species Act (ESA). The
court held that “[r]easoned, scientific analysis support[s] NMFS’ conclusion
that the continued loss of turtles in significant numbers to pelagic longline
bycatch would leave a permanent dent in the loggerhead species.” The court stated that it was not permitted
to second-guess NMFS’ analysis.
Plaintiffs also argued that NMFS’ jeopardy finding was arbitrary and
capricious because “the longline fishing industry is just one small contributor
to the jeopardy of the leatherback and loggerhead turtle populations.” The court held that, to pass muster under
the ESA’s section 7 regulations, NMFS’ jeopardy finding “did not have to single
out the pelagic longline fishery as the predominant activity
jeopardizing the listed turtle populations.”
Rather, NMFS need only have found that pelagic longline fishing,
together with other cumulative effects, would jeopardize the species, which is
precisely what NMFS did in this case.
Finally, the court rejected plaintiffs’
argument that the fishery closure required them to shoulder a disproportionate
share of the burden of recovering the sea turtles. Plaintiffs had cited no applicable authority in support of this
argument. The court found plaintiffs’
citation to Bennett v. Spear, 520 U.S. 154, 176-177 (1997), inapposite,
stating that it does not stand for the proposition that agencies may not impose
undue burdens on industry in implementing the ESA. Rather, the court explained, Bennett simply requires
decisions under the ESA to be grounded in hard science through application of
the “best available science” requirement, in order to avoid “needless economic
dislocation” that follows from unaccountable regulation. The court found that the biological opinion
amply met the best available science requirement. Furthermore, the court noted, “[i]f the plaintiffs’ logic
prevailed, recovery efforts under the ESA could never proceed incrementally, as
the first party to suffer the adverse effect of a recovery effort could resist
regulation on grounds of differential treatment.” The court stated that “[n]othing in the ESA forecloses piecemeal
or incremental pursuit of the goal of species protection.”
Case Summary and Analysis
The court in this case enjoined several
timber sales on national forest lands in Oregon, holding that plaintiffs had
established a likelihood of success on the merits of their claim that the
biological opinion for such sales was arbitrary and capricious. The U.S. Fish and Wildlife Service’s
biological opinion for the proposed timber sales concluded that the timber
sales would not jeopardize the continued existence, or result in take, of any
bull trout. Plaintiffs argued that this
biological opinion was invalid because the FWS failed to: ensure that the timber
sales would comply with the aquatic conservation strategy (ACS) in the
Northwest Forest Plan; rely on the best scientific evidence available in
determining the impacts of the timber sales on bull trout; and analyze
cumulative impacts of timber harvesting activities on private lands in the same
watershed.
As a threshold matter, the FWS
contended that the “no jeopardy” opinion was not a final agency action subject
to judicial review under the Administrative Procedures Act. The FWS argued that, unlike the no jeopardy
opinion found reviewable in Pacific Coast Federation of Fishermen’s
Associations, Inc. v. National Marine Fisheries Services, 265 F.3d 1028 (9th
Cir. 2001), this biological opinion did not authorize take, and therefore had
no legal consequences. The court
disagreed, holding that the opinion did have legal consequences because the
U.S. Forest Service could use the no jeopardy conclusion to defend its future
actions.
The court next held that plaintiffs
were likely to succeed on the merits of their challenge to the biological
opinion, because the opinion did not analyze whether the timber sales would
comply with the ACS objectives. For
example, the court observed, the opinion did not examine the effect of
short-term watershed degradation caused by the timber sales, or the
consequences of an increase in road density, within the context of ACS
objectives. The court rejected the FWS’
assertion that its failure to analyze these impacts was reasonable because
there were no bull trout or suitable bull trout habitat in the immediate
vicinity of the proposed harvests. The
court noted that bull trout were five to twelve miles from the timber harvests,
and road reconstruction would occur in areas adjacent to potential bull trout
habitat. The court stated that “[s]ince
the construction, reconstruction, and use of roads associated with timber sales
have been identified as major causes of the decline of bull trout,
historically, it seems incongruous for the FWS to conclude that those
activities, occurring as they will in the vicinity of potential bull trout
habitat, will have no likelihood of causing harm to the bull trout.”
Accordingly, the court granted a
preliminary injunction, finding substantial issues as to whether FWS “may
ignore the specific terms and conditions it previously has deemed necessary to
impose . . . to protect endangered species,” and as to whether the FWS properly
concluded that the timber sales were not located in the vicinity of any bull
trout or bull trout habitat.
Case Summary and Analysis
In this case, the court rejected
plaintiffs’ section 7 challenge to a ship dredging and berthing project
initiated by the Port of Oakland and authorized by the U.S. Army Corps of
Engineers (Corps) in San Francisco Bay.
The dredging project proposed to deepen the Port channels and berths, to
allow large container ships to enter the Port.
This project was proposed and funded jointly by the Port and the
Corps. The berthing project was
proposed independently by the Port, and involved four new container berths, two
new cargo terminals, and a shoreline park.
In order to complete the later project, however, the Port needed a
dredge and fill permit from the Corps under section 404 of the Clean Water
Act. The harbor modifications were
necessary to accommodate the new generation of container cargo ships. The key concern was whether the projects
would increase the probability of invasive species—i.e., unwanted "exotic
marine and freshwater organisms"—being introduced into waters of San
Francisco Bay through the discharge of the ships' ballast water. The Corps had concluded that the projects,
taken together, would actually decrease that risk.
Pursuant to section 7 of the ESA, the
Corps consulted with both the U.S. Fish and Wildlife Service (FWS) and the
National Marine Fisheries Service (NMFS) regarding the impacts of both projects
on listed species. The FWS issued a “no
jeopardy” biological opinion with respect to both projects. NMFS, on the other hand, engaged in informal
consultation on the dredging project, concluding that the project was not likely
to adversely affect any listed species or critical habitat, and issued a no
jeopardy biological opinion regarding the berthing project.
Plaintiffs contended that neither the FWS nor NMFS complied with their substantive obligations to ensure no jeopardy to listed species pursuant to section 7(a)(2) of the ESA. Specifically, plaintiffs challenged the adequacy of the agencies= assessment of the projects= effects on the distribution of invasive species in the San Francisco Bay-Delta ecosystem, in a number of respects. First, plaintiffs argued that the agencies improperly limited the scope of their analyses to the immediate vicinity of the proposed projects. The court rejected this argument, holding that “[p]laintiffs’ proposed methodology would require the agencies to assess the indirect effects that changed shipping patterns at the Port of Oakland would have on all listed species in the Bay-Delta ecosystem, or potentially, the West Coast of the United States. Such an analysis would require