Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt.

• Decision Date: 22 October 2012
• Docket Number: 10–72762,10–72775.,10–72552,10–72768,Nos. 10–72356,s. 10–72356
• Citation: 698 F.3d 1101
• Parties: CENTER FOR BIOLOGICAL DIVERSITY, Petitioner, v. UNITED STATES BUREAU OF LAND MANAGEMENT; U.S. Fish and Wildlife Service, Respondents, Ruby Pipeline, L.L.C., Respondent–Intervenor. Coalition of Local Governments, On Behalf of Its Members, Including Lincoln County, Wyoming, Petitioner, v. Bureau of Land Management; Department of the Interior, Respondents, Ruby Pipeline, L.L.C., Respondent–Intervenor. Warner Barlese, Member, Summit Lake Paiute Tribe, Nevada, and Chairman, Summit Lake Paiute Council, Petitioner, v. United States Bureau of Land Management; U.S. Army Corps of Engineers; U.S. Fish and Wildlife Service, Respondents, Ruby Pipeline, L.L.C., Respondent–Intervenor. Fort Bidwell Indian Community of the Fort Bidwell Indian Reservation of California, Petitioner, v. United States Bureau of Land Management; U.S. Fish and Wildlife Service; United States Army Corps of Engineers, Respondents, Ruby Pipeline, L.L.C., Respondent–Intervenor. Defenders of Wildlife; Sierra Club; Great Basin Resource Watch, Petitioners, Ruby Pipeline, L.L.C., Intervenor, v. United States Bureau of Land Management; United States Army Corps of Engineers; U.S. Fish and Wildlife Service, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

698 F.3d 1101

12 Cal. Daily Op. Serv. 11,924

2012 Daily Journal D.A.R. 14,585

CENTER FOR BIOLOGICAL DIVERSITY, Petitioner,

v.UNITED STATES BUREAU OF LAND MANAGEMENT; U.S. Fish and Wildlife Service, Respondents,Ruby Pipeline, L.L.C., Respondent–Intervenor.

Coalition of Local Governments, On Behalf of Its Members, Including Lincoln County, Wyoming, Petitioner,

v.Bureau of Land Management; Department of the Interior, Respondents,Ruby Pipeline, L.L.C., Respondent–Intervenor.

Warner Barlese, Member, Summit Lake Paiute Tribe, Nevada, and Chairman, Summit Lake Paiute Council, Petitioner,

v.United States Bureau of Land Management; U.S. Army Corps of Engineers; U.S. Fish and Wildlife Service, Respondents,Ruby Pipeline, L.L.C., Respondent–Intervenor.

Fort Bidwell Indian Community of the Fort Bidwell Indian Reservation of California, Petitioner,

v.United States Bureau of Land Management; U.S. Fish and Wildlife Service; United States Army Corps of Engineers, Respondents,Ruby Pipeline, L.L.C., Respondent–Intervenor.

Defenders of Wildlife; Sierra Club; Great Basin Resource Watch, Petitioners,

Ruby Pipeline, L.L.C., Intervenor,

v.United States Bureau of Land Management; United States Army Corps of Engineers; U.S. Fish and Wildlife Service, Respondents.

Nos. 10–72356, 10–72552, 10–72762, 10–72768, 10–72775.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 11, 2011.

Filed Oct. 22, 2012.

Eric R. Glitzenstein (argued), Meyer Glitzenstein & Crystal, Washington, D.C., for petitioners Center for Biological Diversity and Defenders of Wildlife et al.

Amy R. Atwood, Center for Biological Diversity, Portland, Oregon, John T. Buse, Center for Biological Diversity, San Francisco, CA, Howard M. Crystal, Meyer Glitzenstein & Crystal, Washington, D.C., for petitioner Center for Biological Diversity.

Adam M. Kron, Kara Gillon, Michael P. Senatore, Defenders of Wildlife, Washington, D.C., for petitioner Defenders of Wildlife et al.

Randolph H. Barnhouse, Samuel D. Hough (argued), Luebben Johnson & Barnhouse LLP, Los Ranchos De Albuquerque, NM, for petitioner Fort Bidwell Indian Community of the Fort Bidwell Indian Reservation of California.

Colette Routel (argued), Assistant Professor, William Mitchell College of Law, Saint Paul, MN, for petitioner Summit Lake Paiute Tribe.

Constance E. Brooks, Michael Marinovich (argued), C.E. Brooks & Associates, P.C., Denver, CO, for petitioner Coalition of Local Governments.

Nicholas A. DiMascio, Lane N. McFadden, Jennifer S. Neumann (argued), U.S. Department of Justice, Environment & Natural Resources Division, Washington, D.C., for respondents U.S. Bureau of Land Management, U.S. Fish and Wildlife Service.

John A. Bryson (argued), John F. Clark, Holland & Hart LLP, Washington, D.C., William G. Myers III, Holland & Hart LLP, Boise, ID, Aaron C. Courtney, Stoel Rives LLP, Portland, OR, Craig V. Richardson, El Paso Corporation Pipeline Group, Colorado Springs, CO, Thomas L. Sansonetti, Holland & Hart LLP, Cheyenne, WY, Troy A. Eid, Jennifer H. Weddle, Greenberg Traurig LLP, Denver, CO, for respondent-intervenor Ruby Pipeline, L.L.C.

On Petition for Review of Orders of the Bureau of Land Management and the Fish and Wildlife Service. IBLM Nos. NVN–084650, OR–64807, UTU–82880, WYW–171168 (W0350), CP09–54–000.

Before: MARSHA S. BERZON and N. RANDY SMITH, Circuit Judges, and WILLIAM E. SMITH, District Judge.^*

OPINION

BERZON, Circuit Judge:

Our case concerns a decision by the Bureau of Land Management (“BLM”) to authorize the Ruby Pipeline Project (“Project”). The Project involves the construction, operation, and maintenance of a 42–inch–diameter natural gas pipeline extending from Wyoming to Oregon, over 678 miles. The right-of-way for the pipeline encompasses approximately 2,291 acres of federal lands and crosses 209 rivers and streams that support federally endangered and threatened fish species. According to a Biological Opinion (“the Biological Opinion” or “the Opinion”) formulated by the Fish and Wildlife Service (“FWS”), the project “would adversely affect” nine of those species and five designated critical habitats. The FWS nonetheless concluded that the project “would not jeopardize these species or adversely modify their critical habitat.” The propriety of the FWS's “no jeopardy” conclusion, and the BLM's reliance on that conclusion in issuing its Record of Decision, are at the heart of this case.

This opinion addresses those challenges to the Project that petitioners Center for Biological Diversity, Defenders of Wildlife et al., and Summit Lake Paiute Tribe have raised under the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq.¹ Specifically, we resolve petitioners' claims that the Biological Opinion and its accompanying Incidental Take Statement were arbitrary and capricious because: (1) the Biological Opinion's “no jeopardy” and “no adverse modification” determinations relied on protective measures set forth in a conservation plan not enforceable under the ESA; (2) the Biological Opinion did not take into account the potential impacts of withdrawing 337.8 million gallons of groundwater from sixty-four wells along the pipeline; (3) the Incidental Take Statement miscalculated the number of fish to be killed, by using a “dry-ditch construction method” for water crossings; and (4) the Incidental Take Statement placed no limit on the number of “eggs and fry” of threatened Lahontan cutthroat trout to be taken during construction.

We agree with the first two contentions and so set aside the Biological Opinion as arbitrary and capricious. We also set aside the Record of Decision, as it relied on the invalid Biological Opinion.²

I. BACKGROUND

A. Statutory Scheme

The Endangered Species Act is a comprehensive scheme with the “broad purpose” of protecting endangered and threatened species. Babbitt v. Sweet Home Chapter of Comtys. for a Great Or., 515 U.S. 687, 698, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995); see Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). Two interlocking provisions of the Act are of particular significance here: section 9, which prohibits the “take” ³ of any member of an endangered or threatened species, 16 U.S.C. § 1538(a)(1)(B), and section 7, which imposes upon federal agencies an “affirmative duty to prevent violations of section 9,” Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1238 (9th Cir.2001) (citing 16 U.S.C. § 1536(a)(2)).

Under Section 7, a federal agency must “insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species.” 16 U.S.C. § 1536(a)(2).⁴ To facilitate compliance with this substantive requirement, section 7 and its implementing regulations also impose specific procedural duties upon federal agencies: Before beginning any “major construction activities,” agencies must prepare a “biological assessment” to determine whether listed species or critical habitat “are likely to be adversely affected” by the proposed action. 50 C.F.R. § 402.12 (2012). If so, the action agency must formally consult with the appropriate wildlife agency, in this case the FWS,⁵ before undertaking the action. 50 C.F.R. § 402.14; see Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1020 (9th Cir.2012) (en banc); Sierra Club v. Babbitt, 65 F.3d 1502, 1505 (9th Cir.1995).

During the formal consultation process, the FWS must “[f]ormulate its biological opinion as to whether the action, taken together with cumulative effects, is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat.” 50 C.F.R. § 402.14(g)(4). If the FWS concludes that jeopardy or adverse modification is likely, then any take resulting from the proposed action is subject to section 9 liability (unless that take is authorized by other provisions of the Act not relevant here). See Sierra Club v. Babbitt, 65 F.3d at 1505;Defenders of Wildlife v. EPA, 420 F.3d 946, 966 (9th Cir.2005), rev'd on other grounds by Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007). Although a federal agency or project applicant is “technically free to disregard the Biological Opinion and proceed with its proposed action, ... it does so at its own peril (and that of its employees), for ‘any person’ who knowingly ‘takes' [a member of] an endangered or threatened species is subject to substantial civil and criminal penalties, including imprisonment.” Bennett v. Spear, 520 U.S. 154, 170, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997); see also San Luis & Delta–Mendota Water Auth. v. Salazar, 638 F.3d 1163, 1170(9th Cir.2011) (“[T]he determinative or coercive effect of a Biological Opinion stems directly from the Service's power to enforce the no-take provision in ESA § 9....”).

If, on the other hand, the FWS concludes in its biological opinion that no jeopardy or adverse modification is likely, but that the project is likely to result only in the “incidental take” ⁶ of members of listed species, then the FWS will provide, along with its biological opinion, an incidental take statement authorizing such takings. 50 C.F.R. § 402.14(i). An incidental take statement must:

(1) specify the impact [i.e., the amount or extent] of the incidental taking on the species; (2) specify the “reasonable and prudent measures” that the FWS considers necessary or appropriate to minimize such impact; [and] (3) set forth “terms and conditions” with which the action agency must comply to implement the reasonable and prudent measures....

Or. Natural Res. Council v. Allen, 476 F.3d 1031, 1034 (9th Cir.2007) (quoting 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i)). “Significantly, the Incidental Take Statement functions as a safe harbor provision immunizing persons from...