Endangered Species Law and Policy : Environmental and Natural Resources Attorneys from Nossaman

In Western Watersheds Project v. Kraayenbrink (PDF), the United States Court of Appeals for the Ninth Circuit  upheld the district court's decision that the Bureau of Land Management (BLM) violated the Endangered Species Act in adopting amendments to BLM's grazing regulations and affirmed the district court's permanent injunction enjoining the amended regulations.  The Ninth Circuit held that BLM violated section 7 of the Endangered Species Act (ESA) by failing to consult with the Fish and Wildlife Service (Service) regarding the amendments and also violated the National Environmental Policy Act by failing to take a "hard look" at the environmental impacts of the proposed regulations and arbitrarily concluded that the proposed regulations would have no significant environmental impact.

BLM began the process of amending the grazing regulations in 2002 and assembled a total of three interdisciplinary teams to review the proposed changes.  Two of these teams criticized the new regulations and concluded they would ultimately lead to environmental harm and would cause a "slow long-term adverse effect on wildlife and biological diversity in general."  BLM ignored these conclusions and in 2006 issued a final rule (PDF) adopting the proposed regulations.  The 2006 regulations made three principal changes to the regulations:  (1) they decreased the level of public input in public rangelands management, (2) they generally made it more difficult for BLM to conduct environmental enforcement on public rangelands, and (3) they ceded ownership rights to permanent rangeland structures and water from the United States to private ranchers.  With respect to the ESA, BLM concluded that the 2006 regulations were merely administrative and would not have an effect on listed or candidate species or proposed or designated critical habitat and therefore no consultation with FWS was required under section 7 of the ESA.

Section 7 of the ESA requires a federal agency to consult with the Service if the federal agency determines that any action on its part may affect any listed species or designated critical habitat.  Here, the Ninth Circuit found that BLM's conclusion that the 2006 regulations would not affect listed species or critical habitat was arbitrary and capricious.  First, the court noted that the "sheer number of acres affected by the 2006 Regulations and number of special status species who reside on those lands alone suggest that the proposed amendments 'may affect' a listed species or its critical habitat."  Second, the Service itself concluded that the 2006 regulations would affect special status species and their habitat.  The Service was primarily concerned with the decrease of public input and change in water ownership, which would reduce habitat quality and have a long-term adverse effect on wildlife.  Third, even BLM's own scientists advised the agency that a section 7 consultation was necessary.  Finally, plaintiffs submitted extra-record testimony that the regulations would have an adverse effect on wildlife and biological diversity, listed salmonids, and many listed bird species.  Therefore, the court concluded that BLM had no rational basis to conclude that the 2006 regulations would not affect listed species or their habitat.

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On August 20, 2010, the United States Court of Appeals for the Ninth Circuit held that the National Marine Fisheries Service ("NMFS") did not violate the law when it omitted resident rainbow trout from the Distinct Population Segment of California Central Valley steelhead ("CV Steelhead"), despite the fact that rainbow trout and steelhead are the same species and can interbreed.  The court affirmed NMFS's listing of the DPS Steelhead as a threatened species under the Endangered Species Act ("ESA").

In order to be listed as a threatened species, the ESA requires that, based on the best scientific information available, a species will, within the foreseeable future, likely be in danger of extinction throughout all or a significant portion of its range.  The ESA defines the term "species" to include "any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature."

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For the second time in two months, the United States Court of Appeals for the Ninth Circuit rejected an industry challenge to a designation of critical habitat under the Endangered Species Act (“ESA”).  In Home Builders Association of Northern California v. United States Fish and Wildlife Service (PDF), the court upheld the designation of 858,000 acres of land in California as critical habitat for fifteen vernal pool species.

The ESA prohibits federal agencies from approving actions that “adversely modify” critical habitat.  The court rejected Home Builders’ claim that the ESA limited the designation of critical habitat to those areas that contain all (rather than some) of the physical or biological features essential to the conservation of the vernal pool species. The court also rejected the claim that, in designating critical habitat, the Fish and Wildlife Service is required to determine when the protected species are required to be conserved.  Following its recent decision in Arizona Cattle Growers’ Assn. v. Salazar, 606 F.3d 1160 (9th Cir.  2010), the court upheld the Service’s analysis of the economic impacts of the critical habitat designation.  The court concluded that, unlike the National Environmental Policy Act, the ESA does not require the Fish and Wildlife Service to evaluate cumulative impacts of the critical habitat designation.

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The United States District Court for the District of Montana issued a decision (PDF) setting aside the 2009 Final Rule (PDF) that delisted the distinct population segment (DPS) of the gray wolf in the Northern Rocky Mountains, except in Wyoming.  The court found that the Endangered Species Act (ESA) does not allow the Fish and Wildlife Service (Service) to divide a DPS into a smaller taxonomy. 

The gray wolf was listed as endangered under the ESA in 1974.  The Service subsequently developed a wolf recovery plan, and the gray wolf was reintroduced in the northern Rockies in the mid-1990s.  Under the Bush Administration, the Service sought to delist the wolf in 2008 (including the Wyoming wolves), but environmental plaintiffs successfully enjoined implementation of that rule.  The 2009 Final Rule removed ESA protection for the gray wolves in Idaho and Montana, but preserved protection for the Wyoming Wolves noting that the state's regulatory framework failed to meet the ESA's requirements. 

In challenging the 2009 Final Rule, plaintiffs argued that the Service had violated the ESA by listing something less than a DPS (by only protecting the Wyoming wolves and excluding Idaho and Montana) as endangered and that the definition of a  "species" is nothing smaller than a DPS.  The Service defended its listing decision arguing that the ESA allows for listing of part of a DPS because the term "endangered species" means any species which is in danger of extinction throughout all or a significant portion of its range.  The court explained that the Service's argument could not be reconciled with the plain reading of the ESA and that the term "species" excludes distinctions below that of a DPS.  The court further concluded that the Service's interpretation of the ESA was not deserving of deference and was unreasonable.

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The United States District Court for the District of Montana issued a decision (PDF) on July 27, 2010, in which it held that the Forest Service violated the National Environmental Policy Act (NEPA) and the Fish and Wildlife Service and National Marine Fisheries Service violated the Endangered Species Act (ESA) when those agencies issued an Environmental Assessment, Finding of No Significant Impact, and biological opinions for the use of chemical fire retardant to fight wildfires on Forest Service lands.  The decision is described in this article.

In 2003, the Forest Service Employees for Environmental Ethics filed a lawsuit challenging the Forest Service’s use of chemical fire retardant. The court granted summary judgment for plaintiffs on the grounds that federal defendants had failed to comply with NEPA and the ESA. Eventually, the Forest Service issued its Environmental Assessment and Finding of No Significant Impact (FONSI) pursuant to NEPA and the Fish and Wildlife Service and National Marine Fisheries Service issued their biological opinions pursuant to the ESA.  In response the Forest Service Employees for Environmental Ethics filed another lawsuit.

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In South Yuba River Citizens League v. National Marine Fisheries Service (PDF), the United States District Court for the Eastern District of California found that the National Marine Fisheries Service (NMFS) violated the Administrative Procedure Act in concluding that water diversion on the Yuba River would not jeopardize or adversely modify the critical habitat of the Central Valley spring-run Chinook salmon, Central Valley steelhead, and North American green sturgeon.

The court found that the NMFS biological opinion (BiOp) failed to provide a rational connection between the factual determination that the project would perpetuate unmitigated stressors and the conclusion that those stressors would not jeopardize the listed fish.  The court reiterated that an agency action can only “jeopardize” a species’ existence if that “agency action causes some deterioration in the species’ pre-action condition,” but that these effects can only be understood in the context of the current status of the species, the environmental baseline, and future cumulative effects. The court held that in order to determine that other stressors identified in the BiOp will not cause a decline in the identified viability factors for the species, “the BiOp must discuss (through some method) the magnitude of the stressors’ impact, the populations’ ability to tolerate this impact, and the reason why any decline will not reduce the overall likelihood of survival or recovery.”

The court also found that the BiOp failed to consider various other aspects of the problem, including hatcheries, the San Francisco Bay Delta, poaching, the species’ overall viability, and global warming. The court found that evidence in the administrative record suggested that each of the first four stressors is one that is likely to adversely affect the listed species and that failure to consider the effect of the stressor on the listed species rendered the BiOp’s no-jeopardy conclusion arbitrary and capricious. As to global warming, the court stated that it “cannot conclude that global warming’s potential impacts are so slight that NMFS could ignore them without discussion” and that while the BiOp discussed present impacts on water temperature, it did not address whether global warming will alter temperature or flow. Therefore, by failing to discuss global warming, NMFS failed to address an important part of the problem.

With respect to the BiOp’s critical habitat analysis, “the BiOp concluded that the project would not adversely modify critical habitat because the project’s net ‘impacts’ on habitat were at worst neutral when measured against conditions immediately preceding the BiOp.” The court concluded that this conclusion was arbitrary and capricious as the court could not discern the reason underlying the critical habitat analysis.

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In Arizona Cattle Growers’ Association v. Salazar (PDF), the U.S. Court of Appeals for the Ninth Circuit upheld a Fish and Wildlife Service (“Service”) determination that under the Endangered Species Act (“ESA”), critical habitat for the threatened Mexican spotted owl is not limited to areas where the owl actually resides, but can encompass areas that the owl uses with sufficient regularity that it is likely to be present during a reasonable span of time.  That standard means the thousands of miles of migratory bird flyways used by ESA-listed birds could become protected critical habitat. The decision also held that when implementing the ESA’s requirement to decide whether the costs of designating an area as critical habitat outweigh the benefits, the Service need not include costs caused by the critical habitat designation if such costs can also be attributed to listing the species.

Arizona Cattle Growers’ made two arguments on appeal: (1) that the Service impermissibly treated areas in which no owls are found as “occupied" under the ESA, and (2) in the Service’s determination of the economic impacts of the critical habitat designation, the Service used a “baseline” approach that did not account for economic impacts of the critical habitat designation that are also attributable to the listing decision.

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The California Court of Appeal’s First Appellate District issued a decision affirming the lower court in a case of first impression regarding the interpretation of the term “person” in the California Endangered Species Act (CESA). The issue presented to the court was whether the California Department of Water Resources (DWR) is a person for the purpose of CESA. The court held that “a state agency is a ‘person’ within the meaning of section 2080, which prohibits any ‘person’ from taking an endangered or threatened species without appropriate permit authority from the California Department of Fish and Game.”  The court decided the matter – despite the fact that DWR complied with the trial court’s writ and obtained proper authorization from the California Department of Fish and Game thus rendering the case moot – due to the importance of the issue.

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The Court of Appeals for the Ninth Circuit upheld the Fish and Wildlife Service's ("Service') no "adverse modification" determination despite the fact that the proposed project would destroy some critical habitat.

In Butte Environmental Council v. U.S. Army Corps of Engineers (PDF), environmental plaintiffs challenged the Service's biological opinion finding that a proposed business park to be located along Stillwater Creek in Redding, California would not adversely modify the critical habitat of the threatened vernal pool fairy shrimp, endangered vernal pool tadpole shrimp, and the threatened slender Orcutt grass.  The Service had determined that the proposed project contained 356.6 acres of critical habitat shared by the vernal pool fairy shrimp and vernal pool tadpole shrimp.  The Service concluded that the project would destroy 234.5 acres of this critical habitat, which was equal to 0.04% of the fairy shrimp's total critical habitat nationwide and 0.10% of the tadpole shrimp's total critical habitat nationwide. 

The court rejected each of the plaintiff's arguments challenging the Service's determination that the project would not adversely modify the critical habitat of the listed species.  First, plaintiff argued that the Service applied an improper definition of "adverse modification" and did not account for the "recovery needs" of the affected species, as required by the court's previous decision in Gifford Pinchot Task Force v. U.S. Fish & Wildlife Services.  In Gifford Pinchot, the court held that the regulatory definition of "adverse modification" contradicted Congress's command and that the definition of adverse modification of critical habitat was properly a direct or indirect alteration that appreciably diminishes the value of critical habitat for the survival or recovery of a listed species.  The court rejected plaintiff's contention, citing the Service's statement in the biological opinion that it did not rely on the regulatory definition of "destruction of adverse modification" but relied upon the statute and the court's decision in Gifford Pinchot.  

Second, despite the fact that the proposed project would destroy 234.5 acres of critical habitat for the fairy shrimp and tadpole shrimp, the court explained that an area of a species' critical habitat can be destroyed without appreciably diminishing the value of the species' overall critical habitat.  The court noted that the project would only affect a very small percentage of the total critical habitat for the listed species. While the plaintiff argued that the Service's focus on the project's impact on the species' total critical habitat masked the project's localized impact, the court stated that where "there is no evidence in the record that 'some localized risk was improperly hidden by use of large scale analysis, we will not second-guess the [Service].'"  

Finally, the court rejected plaintiff's argument that the Service failed to address the rate of loss of critical habitat, stating that the Endangered Species Act did not require the Service to calculate rate of loss.

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On May 27, 2010, the United States District Court for the District of Columbia issued a decision rejecting a challenge to the U.S. Fish and Wildlife Service's critical habitat determination for the endangered San Diego fairy shrimp, concluding that the Service's determination was entitled to deference. 

Under the terms of the Endangered Species Act, the Service is required to designate, to the maximum extent practicable, critical habitat for an endangered or threatened species concurrently with a final listing rule.  Critical habitat is defined, in part, as "the specific areas within the geographical area occupied by the species, at the time it is listed . . . ." 

Although the Service issued a final rule listing the San Diego fairy shrimp as endangered on February 3, 1997, it did not issue a final rule designating critical habitat until October 2000.  This designation, however, was short lived, because in response to a legal challenge by several industry groups, the Service sought a voluntary remand for further consideration.  In December 2007, the Service issued a revised final rule designating critical habitat for the fairy shrimp, this time designating, among other tracts of land, approximately 275 acres of land owned by plaintiffs.  

Plaintiffs filed an action challenging the Services second critical habitat designation, asserting that there was no evidence that the fairy shrimp occupied their property in 1997, when the species was listed.  The Court rejected plaintiffs' challenge, finding that, based on surveys conducted in 2001, and the fairy shrimp's sedentary life cycle, it was reasonable for the Service to conclude that fairy shrimp occupied the premises in 1997.

Plaintiffs also challenged the critical habitat designation on the basis that the Service failed to properly consider the economic impact of its designation.  Again, however, the Court deferred to the Service's determination, and upheld the Service's analysis of the economic impacts of its designation.

The deference shown by the Court in this case is common in much Endangered Species Act litigation, as such litigation often falls under the Administrative Procedure Act, which authorizes a reviewing court to set aside an agency action only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."

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On May 27, 2010, the United States District Court for the Eastern District of California issued findings of fact and conclusions of law (PDF) regarding Plaintiffs’ request for a preliminary injunction in The Consolidated Delta Smelt Cases, No. 09-407 (E.D. Cal. May 27, 2010).  The matter consists of five consolidated actions that all challenge the December 2008 biological opinion, jeopardy and adverse modification determinations, and reasonable and prudent alternative (RPA) for continued operation of the Central Valley Project (CVP) and State Water Project (SWP) issued by the Fish and Wildlife Service (FWS).  The CVP and SWP provide water for approximately 25 million Californians.

While the Court did not issue an order, it did indicate that the Plaintiffs had already succeeded on their National Environmental Policy Act claims and were likely to succeed on at least some of their Endangered Species Act claims.  Specifically, the Court determined that "FWS’s reliance on analyses [of the effects of the CVP and SWP] that utilize raw (as opposed to population-normalized) salvage data is an undeniable failure to use the best available scientific methodology."  Findings & Conclusions at 52.  Furthermore, the Court determined that Reclamation erred by failing to ensure that "the RPA utilized the best available science."  Id. at 116.

The Court is holding a hearing to address whether to issue an injunction on May 28, 2010.

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On May 17, 2010, the United States District Court for the Northern District of California approved a stipulated injunction and order submitted by the Center for Biological Diversity ("CBD") and the U.S. Environmental Protection Agency ("EPA") establishing, among other things, an immediate prohibition on the use of certain pesticides in and around the greater San Francisco Bay area, and a series of deadlines for the EPA to make "effects determinations" and, as necessary, initiate consultations under the Endangered Species Act. 

EPA is responsible for registering pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act, and ensuring that the pesticides uses it authorizes will not have unreasonable adverse effects on the environment, including on threatened and endangered species.  With respect to the 75 pesticides at issue in the CBD litigation, CBD alleged that the EPA failed to comply with section 7(a)(2) of the Endangered Species Act when it registered the pesticides for use in the United States without consulting with the the U.S. Fish and Wildlife Service regarding potential impacts on tidewater goby, delta smelt, California clapper rail, salt marsh harvest mouse, California tiger salamander, San Francisco garter snake, California freshwater shrimp, San Joaquin kit fox, Alameda whipsnake, valley elderberry longhorn beetle, and Bay checkerspot butterfly and their habitats.  All of these species are listed as either threatened or endangered under the Endangered Species Act.

Although CBD and EPA filed a joint motion for entry of stipulated injunction in January 2010, because defendant-intervenors had opposed the stipulation, final approval of the stipulated injunction was delayed until this past week.  As finally adopted, the stipulated injunction is comprised of four basic elements:  (1) a schedule for EPA to complete its "effects determination" for certain identified pesticides; (2) a general prohibition on the use of certain pesticides within and around the habitat of the 11 listed species; (3) the distribution of a bilingual notification brochure warning that certain pesticides may harm wildlife or their habitat; and (4) a similarly worded shelf-tag for certain pesticide containing products.  With respect to the prohibition on use, the stipulated injunction provides a list of exemptions for common household uses, such as spraying potted plants or controlling subterranean termites.         

CBD had obtained a similar stipulated injunction from the EPA in 2005 as a result of litigation concerning the California Red-legged frog and EPA's previous registration of 66 pesticides. 

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On May 18, 2010, the United States District Court for the Eastern District of California issued findings of fact and conclusions of law (PDF) regarding Plaintiffs’ request for a preliminary injunction in The Consolidated Salmonid Cases, No. 09-1053 (E.D. Cal. May 18, 2010).  The matter consists of seven consolidated actions that all challenge the June 2009 biological opinion, jeopardy and adverse modification determinations, and reasonable and prudent alternative (RPA) for continued operation of the Central Valley Project (CVP) and State Water Project (SWP) issued by the National Marine Fisheries Service (NMFS). The CVP and SWP provide water for approximately 25 million Californians.

Plaintiffs challenged the implementation of two components of the RPA developed by NMFS, RPA Actions IV.2.1 and IV.2.3. Action IV.2.1 imposes minimum San Joaquin River inflow requirements in conjunction with maximum permissible exports (i.e., a 4 to 1 ratio between inflow and exports) and is effective April 1 to May 31.  Action IV.2.3 limits Old and Middle river flows to no more negative than -2,500 to -5,000 cfs, depending on juvenile entrainment levels, and is effective January 1 to June 15 or until a temperature trigger is hit at Mossdale (a location on the San Joaquin River).

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On April 28, 2010, the U.S. District Court for the Western District of Washington granted a motion for summary judgment filed by Wild Fish Conservancy, holding that EPA and NMFS failed to use the best scientific and commercial data available in their informal consultation regarding EPA's approval of water-quality standards that exempted salmon farms from various state water quality standards.  Wild Fish Conservancy v. U.S.E.P.A., No. C08-0156, 2010 WL 1734850 (W.D. Wash April 28, 2010).

Specifically, the court held that when EPA and NMFS engaged in informal consultation over EPA's approval of the disputed water quality standards, they should have considered the recent recovery plans for Puget Sound Chinook salmon (2007) and for the Southern Resident Killer Whales (2008) (PDF).  Both recovery plans expressly stated that they were developed based on the best scientific data available regarding each species.  The letter that NMFS issued concurring in EPA's not-likely-to-adversely-affect determination referenced three earlier studies prepared by NMFS and one prepared by the Washington State Department of Natural Resources, but not the more recent recovery plans.  Indeed, the court found that the administrative record was devoid of any mention of the two recovery plans.

Ultimately, the court ordered EPA and NMFS to reconsider whether formal consultation is required taking into account the best available science.

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The Court of Appeals for the Fifth Circuit rejected Endangered Species Act (“ESA”) challenges to the approval of a rail line serving a limestone quarry in Texas. The court upheld the determination by the Surface Transportation Board (“STB”) and the Fish and Wildlife Service (“Service”) to limit the effects analysis in the biological opinion to the impacts of the first phase of the multi-phase quarry project. The court concluded that the subsequent phases were not an interrleated action, a cumulative effect or an indirect effect of the approval of the rail line under the ESA.

In Medina County Environmental Action Association v. Surface Transportation Board, the STB granted an exemption allowing a railroad company to construct and operate a rail line and loading loop to service a proposed limestone quarry in Texas. The proposed rail line was part of “Phase One” in the development of a 1,760-acre tract. Phase One consisted of the proposed rail line and development of 640 acres as a quarry. There were no specific plans for further development, although it was indicated that the rest of the tract might be quarried in additional phases over the next 50 years, depending on market demand.

An environmental group challenged the exemption alleging that the STB and the Service failed to comply with their obligations under section 7 of the ESA because they did not assess the potential for jeopardy posed by the entire 1,760-acre tract on the endangered golden-cheeked warbler and listed karst invertebrates and only assessed the potential effects for Phase One. The plaintiff made three arguments: (1) the entire proposed development is an “interrelated action” to the proposed rail (2) the entire proposed development should have been evaluated as a cumulative effect of the proposed rail; (3) the entire proposed development is an indirect effect of the proposed rail. The court rejected all three claims.
 

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Two men were sentenced in federal court last week after admitting to the 2007 slaughter of over 100 federally endangered Indiana bats in Kentucky.  In light of the brutality of the attacks, one man received 3 years probation, while the second man, who was involved in two separate attacks on the endangered bat, was sentenced to eight months in federal prison.  

Both men pleaded guilty to violating the take prohibition in the federal Endangered Species Act ("ESA"), which provides for a maximum criminal penalty of $50,000 or one year in prison, or both.  While the criminal penalties provision of the ESA has been around since the adoption of the ESA, it is not common for the federal government to pursue criminal penalties.  Instead, the majority of take violations are pursued under either the ESA's civil penalties provision or citizen suit provision.  These convictions, however, are a stark reminder of the potentially significant consequence for those who dismiss the prohibitions in the ESA.   

Federal and state agencies attribute the convictions to an anonymous tip. 

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In the latest round of litigation over endangered species impacts of water management in Southern Florida, a district court invalidated an incidental take statement applicable to actions of the Corps of Engineers to restore the Everglades.  The decision in Miccosukee Tribe of Indians of Florida v. United States (PDF), is the latest in a line of decisions concluding that the Fish and Wildlife Service failed to provide a sufficient justification for the use habitat conditions in lieu of a numerical cap on incidental take.  The decision is an example of the willingness of the federal courts to undertake detailed review of biological opinions issued by the federal wildlife agencies.

In this case, the Miccosukee Tribe challenged the 2002 biological opinion and subsequent 2006 biological opinion (PDF) issued by the Fish and Wildlife Service regarding management actions by the Corps of Engineers to restore wildlife in the Everglades. The Tribe challenged the Amended Incidental Take Statement (PDF) to the 2006 biological opinion, specifically the Service’s use of ecological and habitat surrogates for a numerical limit on the incidental take of three listed species, the Cape Sable seaside sparrow, Everglade snail kite, and wood stork.  Federal courts have held that the Service has the burden of demonstrating that it is impractical to identify a numerical limit on incidental as the trigger for reconsultation under section 7 of the Endangered Species Act.

 Here the Service argued that natural fluctuations in the population of the Cape Sable seaside sparrow made the identification of a numerical take limit impractical.  The District Court for the Southern District of Florida rejected the Service’s argument stating the “fact that sparrow populations may decrease due in part to low nest success rates does not unequivocally support the conclusion that the variability of nest success rates makes it impractical to establish a numerical trigger for incidental take.” 

The court found the Amended Incidental Take Statement was valid as to the Everglade snail kite and the wood stork. 

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Finding its methodology “fatally flawed,” the Ninth Circuit Court of Appeals concluded that the Forest Service violated the National Forest Management Act (“NFMA”) and the National Environmental Policy Act (“NEPA”) in its approval of grazing allotments in Southeast Montana.  In Native Ecosystems Council v. Tidwell (PDF), the court determined that the Forest Service’s use of a “habitat” proxy to evaluate impacts to the sage grouse was arbitrary and capricious without considering evidence concerning the sage grouse population. The court did not consider the recent determination by the Fish and Wildlife Service that the listing of the sage grouse under the Endangered Species Act is “warranted.” Nevertheless, the decision is evidence of the potential for future conflicts between the conservation of the sage grouse and economic activities on public lands in the West. The decision is another example of the reluctance of the Ninth Circuit to defer to agency decisions on biological issues.

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The United States District Court for the Eastern District of California issued a decision (PDF) granting plaintiffs' motion for summary judgment on the grounds that the National Marine Fisheries Service (NMFS) and the Bureau of Reclamation (BOR) violated the National Environmental Policy Act (NEPA) by adopting and implementing NMFS' biological opinion and reasonable and prudent alternatives regarding the long-term operations of the Central Valley Project and State Water Project in California.

The NMFS biological opinion (PDF), which covers five listed anadromous and marine mammal species, was released on June 4, 2009.  In it, NMFS determined that long-term operations of the Central Valley Project and State Water Project are likely to jeopardize the continued existence of all five listed species.  For that reason, NMFS identified reasonable and prudent alternatives that are expected to avoid the likelihood of jeopardy to the species.  Numerous plaintiffs filed lawsuits challenging the biological opinion and reasonable and prudent alternatives, and those suits were consolidated on September 25, 2009. On November 2, 2009, plaintiffs moved for summary judgment regarding their NEPA claims.

Plaintiffs argued that the adoption and implementation of the biological opinion and reasonable and prudent alternatives are major federal actions that will significantly affect the human environment and that NMFS and BOR erred by not preparing an environmental assessment or environmental impact statement as required by NEPA.  The Court agreed holding that the reasonable and prudent alternatives significantly revise the procedures for operating the Central Valley Project and will materially reduce water exports and, therefore, trigger NEPA.

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