Southwest Center for Biological Diversity v. U.S. Bureau of Reclamation

Decision Date04 May 1998
Docket NumberNos. 97-16768,97-17110,s. 97-16768
Citation143 F.3d 515
Parties, 28 Envtl. L. Rep. 21,247, 98 Cal. Daily Op. Serv. 3305, 98 Daily Journal D.A.R. 4577 SOUTHWEST CENTER FOR BIOLOGICAL DIVERSITY, a non-profit corporation, Plaintiff-Appellant, Arizona Power Authority; Metropolitan Water District of Southern California; Southern Nevada Water Authority; Salt River Valley Water Users Association; Salt River Project Agricultural Improvement And Power District, Intervenors-Appellees, and State of Arizona; Rita P. Pearson; State of Colorado; State of New Mexico; State of Utah; State of Wyoming; State of Nevada; Defenders of Wildlife, By Special Appearance, v. U.S. BUREAU OF RECLAMATION; Bruce Babbitt, Secretary of the Interior, Defendants-Appellees. SOUTHWEST CENTER FOR BIOLOGICAL DIVERSITY, a non-profit corporation, Plaintiff-Appellee, State of Arizona; State of Colorado; State of New Mexico; State of Utah; State of Wyoming; State of Nevada, Appellants By Special Appearance, and Arizona Power Authority; Rita P. Pearson; Metropolitan Water District Of Southern California; Defenders of Wildlife; Southern Nevada Water Authority; Salt River Valley Water Users Association; Salt River Project Agricultural Improvement and Power District, Intervenors, v. U.S. BUREAU OF RECLAMATION; Bruce Babbitt, Secretary of the Interior, Defendants.
CourtU.S. Court of Appeals — Ninth Circuit

Travis Stills, Durango, Colorado, Eric R. Glitzenstein, Meyer & Glitzenstein, Washington, DC, for plaintiff-appellant/appellee Southwest Center for Biological Diversity.

James P. Bartlett, Phoenix, Arizona, for intervenor-appellee Arizona Power Authority; Howard B. Golds, Gregory K. Wilkinson, Best Best & Krieger, Riverside, California, for intervenor-appellee Metropolitan Water District of Southern California; David E. Lindgren, Downey, Brand, Seymour & Rohwer, Sacramento, California, for intervenors-appellees Southern Nevada Water Authority and Salt River Project; David C. Shilton, Samuel D. Rauch, III, Department of Justice, Washington, D.C., for defendants-appellees Federal Government.

Carol D. Angel, Assistant Attorney General State of Colorado, Michael Pearce, Arizona Dept. of Water Resources, Phoenix, Arizona, James H. Davenport, Office of the Attorney General, Las Vegas, Nevada, for appellants by special appearance States of Arizona, California, Colorado, Nevada, New Mexico, Utah and Wyoming.

Appeals from the United States District Court for the District of Arizona; Earl H. Carroll, District Judge, Presiding. D.C. No. CV 97-00786-EHC.

Before: GOODWIN, KOZINSKI, and THOMPSON, Circuit Judges.

GOODWIN, Circuit Judge:

These consolidated appeals arise out of a controversy over an endangered subspecies of songbirds and the management of the waters of the Colorado River impounded behind a multipurpose Dam.

Southwest Center for Biological Diversity ("Southwest") brought suit against Bruce Babbitt, the Secretary of the Interior ("the Secretary"), and the United States Bureau of Reclamation ("Reclamation"), alleging violations of the Endangered Species Act ("ESA"). The district court dismissed Southwest's suit against Reclamation, ruling that Southwest did not satisfy jurisdictional pre-suit notice requirements. The district court then granted summary judgment in favor of the Secretary, concluding that the Secretary did not violate any provisions of the ESA. Having disposed of the case, the district court denied as moot the indispensable party motions raised by the states of Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming ("the States"). Plaintiffs, intervenors, and the States appeal. We have jurisdiction to review this case under 28 U.S.C. § 1291 and 5 U.S.C. § 701 et seq. We affirm.

I. BACKGROUND

A. Factual and Procedural History.

In dry years, the Lake Mead delta ("the delta") which is exposed by low water impounded by Hoover Dam on the Lower Colorado River has provided a popular nesting ground for the Southwestern Willow Flycatcher ("the Flycatcher"), a migratory songbird which nests and breeds during spring and summer in dense cottonwood-willow riparian habitat. The bird has been "listed" by the Fish and Wildlife Service ("the FWS") as an endangered species under the ESA. Although periodically submerged by rising water during Reclamation's normal operations of the Hoover Dam and the Lower Colorado River, the delta experiences natural drying periods when upstream rain and snow conditions drop below normal.

In the late 1980s and early 1990s dry weather caused the water level to drop and encouraged expansion of the riparian growth of willow trees. This willow tree growth has gradually expanded to cover approximately 1,148 acres and now forms the second largest continuous patch of native willow habitat known to exist in the Southwest. More recently, however, the return of normal rainfall and runoff on the Colorado has caused the water impounded at Lake Mead to rise back to its normal levels, inundating the root crowns of the willows in the delta. Although the willows have shown resiliency to inundation for periods of over 13 months, the extended inundation of the delta has caused a loss of willows and cottonwoods. Continued inundation will result in the destruction of both the willows and cottonwoods. As the willow-cottonwood habitat is destroyed, Flycatcher nests and young have been, and will likely continue to be, lost.

In 1995, Reclamation began the process of consulting with the Fish and Wildlife Service ("FWS") pursuant to the ESA over the effects of its activities on the Lower Colorado River as they related to the Flycatcher and several other endangered species. Section 7 of the ESA requires each federal agency "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." 16 U.S.C. § 1536(a)(2). Section 7 also requires a federal agency to consult with the Secretary if an agency action may affect a listed species. 16 U.S.C. §§ 1536(a)(2) and 1536(a)(3). See also 50 C.F.R. §§ 402.10, 402.13, and 402.14 (1998).

Following informal consultation, in August of 1996, Reclamation issued its biological assessment of the effects its operations were having on threatened and endangered species on the Lower Colorado River. See 50 C.F.R. § 402.12 (1998). Reclamation reported that its actions were affecting listed species, including the Flycatcher. In fact, direct take of Flycatchers due to water management had occurred at the Lake Mead delta in June of 1996 when willows subjected to prolonged inundation of root crowns lost the structural support of their root systems and fell into Lake Mead.

Approximately five months later, in January of 1997, the FWS, as the Secretary's special designee, issued a Biological Opinion ("BO") which concluded that Reclamation's continued operations on the Lower Colorado River for the next five years would jeopardize the continued existence and survival of the Flycatcher. See 16 U.S.C. § 1536(b); 50 C.F.R. §§ 402.02 and 402.14(h)(1998). In this BO, which was sent to Reclamation for comments, the FWS noted that, in light of the Flycatcher's status and riparian habitat on the Lower Colorado River, the expected loss of habitat from Reclamation's continued activities at Lake Mead would prove catastrophic, both in the amount of Flycatcher habitat involved and the potential rate of loss. The FWS elaborated that there was an urgent need to protect breeding flycatchers and their habitat at Lake Mead.

The FWS then proposed a reasonable and prudent alternative ("RPA") which would permit Reclamation to continue its operations on the Lower Colorado River while still avoiding jeopardy to the Flycatcher. 16 U.S.C. § 1536(b)(3)(A). See also 50 C.F.R. § 402.14(h)(1998). The proposed RPA was comprised of many short and long-term components. The first short-term provision of the RPA required Reclamation to use the full scope of its authority and discretion to immediately protect and maintain the 1,148 acres of riparian habitat at the delta. Reclamation was further required to provide the FWS with a detailed account of the type and extent of discretion available to it in the management of Lake Mead. If Reclamation was unable to implement this provision throughout the five-year consultation period, Reclamation was required to defer use of conservation space above elevation 2136 at Roosevelt Lake, Arizona, in order, in the short-term, to maintain Flycatcher habitat there until suitable flycatcher habitat could be developed elsewhere. The FWS issued a briefing statement on January 21, 1997, discussing the draft RPA. The FWS acknowledged that the proposed RPA actions for the Flycatcher were burdensome, but insisted that the actions were, at the time, considered the absolute minimum necessary to alleviate jeopardy.

After receiving the draft BO, the Regional Director of Reclamation sent a memorandum advising the Secretary that it should not be compelled to preserve any of the Lake Mead Flycatcher habitat because it lacked discretion to reduce the level of Lake Mead except for purposes of river regulation, improvement of navigation, flood control, irrigation, domestic uses, and power generation.

On April 30, 1997, the FWS issued its Final BO in which it confirmed that Reclamation's operation of Hoover Dam and Lake Mead over the next five years would place the Flycatcher in jeopardy. The FWS stated that the expected loss remained catastrophic and that there existed a critical need to protect breeding Flycatchers and their habitat at Lake Mead. The FWS admitted that extinction of the Flycatcher was foreseeable. The FWS nevertheless proposed a new RPA which no longer required Reclamation to take action to protect the habitat at the Lake Mead delta, because of its alleged lack of discretionary power to do so. This RPA further did not require Reclamation to defer use of...

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