In a decision that addresses a number of the more difficult issues the federal wildlife agencies grapple with during the section 7 consultation process, the United States District Court for the District of Arizona recently struck down (pdf) a biological opinion (pdf) issued by the Fish and Wildlife Service for ongoing operations at Fort Huachuca that affect species in the upper San Pedro River area of southeastern Arizona. The court also held that the Department of the Army violated its section 7 obligation by relying on the legally flawed biological opinion.
Fort Huachuca is a major military base in southeastern Arizona. Base operations affect two listed species, the endangered Huachuca water umbel (Lilaeopsis schaffneriana ssp. recurva) and the endangered southwestern willow flycatcher (Empidonax traillii extimus). The court identified two categories of impacts to the species: direct and indirect effects of activities within the Fort’s boundaries and indirect effects on a portion of the San Pedro River including groundwater and surface water consumption.
Plaintiffs challenged the biological opinion on a number of grounds. They argued that the Service failed to evaluate impacts of the proposed action on recovery of the listed species. The court agreed noting, for example, that the biological opinion focuses on the extent to which the action will reduce the reproduction, numbers, and distribution of the listed species but not identifying the conditions necessary to allow for recovery of the species.
Plaintiffs also alleged that the biological opinion relies on uncertain and unidentified mitigation to offset impacts to the listed species. Again, the court agreed holding that the biological opinion relies on conservation measures that are neither reasonably specific nor reasonably certain to occur.
Finally, Plaintiffs claimed that the no jeopardy and no adverse modification determinations by the Service are supported by the administrative record and therefore fail to meet the Administrative Procedure Act standard for judicial review. The court agreed, in part, with Plaintiffs noting for example that the biological opinion does not analyze or even mention climate change.
The court characterized the Army’s section 7 duty as independent and substantive and faulted the Army for relying on a biological opinion that is arbitrary and capricious and, therefore, legally flawed. The decision demonstrates the difficulty the Service is having in some cases preparing effects analyses as the basis for jeopardy and adverse modification determinations that can withstand judicial scrutiny.
Paul Weiland is chair of Nossaman’s Environment & Land Use Group. He focuses his practice on litigation, permitting, and compliance counseling. Paul’s clients include public agencies, publicly regulated utilities, private ...
Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.
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