Ctr. for Biological Diversity v. Salazar

• Decision Date: 28 May 2011
• Docket Number: No. CV 07–484–TUC–AWT.,CV 07–484–TUC–AWT.
• Citation: 804 F.Supp.2d 987
• Parties: CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. Kenneth L. SALAZAR,* et al., Defendants.
• Court: U.S. District Court — District of Arizona

804 F.Supp.2d 987

CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs,

v.Kenneth L. SALAZAR,* et al., Defendants.

No. CV 07–484–TUC–AWT.

United States District Court, D. Arizona.

May 28, 2011.

McCrystie J. Adams, Melanie Kay, Earthjustice Legal Defense Fund, Denver, CO, for Plaintiffs.

John H. Martin, U.S. Department of Justice, Denver, CO, for Defendants.

MEMORANDUM ORDER

A. WALLACE TASHIMA, Circuit Judge.

Pursuant to the Endangered Species Act (“ESA”), the United States Army and the United States Fish and Wildlife Service (“FWS”) carried out formal consultation to address the impacts of the Army's proposed ongoing and future operations at Fort Huachuca from 2006–2016 on certain threatened and endangered species in the upper San Pedro River area of southeastern Arizona. Completing the consultation process, FWS issued a Biological Opinion (“BiOp”) on June 14, 2007 concluding, inter alia, that the Army's operations would not jeopardize the Huachuca water umbel (“umbel”) or the southwestern willow flycatcher (“flycatcher”), or adversely modify their critical habitats. Plaintiffs Center for Biological Diversity and Maricopa Audubon Society sue FWS, the Army, and various federal officials (collectively the “Federal Defendants”) for violation of the ESA. Specifically, Plaintiffs seek declaratory judgment that FWS' 2007 BiOp violates § 7 of the ESA, 16 U.S.C. § 1536(a)(2), and is arbitrary and capricious under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A).¹ Plaintiffs ask the Court to vacate the BiOp and order FWS to reinitiate and complete formal consultation with the Army with respect to the impacts of Fort Huachuca's proposed operations on the umbel and its critical habitat, and the flycatcher. Plaintiffs also seek declaratory judgment that the Army's reliance on the flawed BiOp violates its independent, substantive duty under § 7 and is arbitrary and capricious under the APA.² Plaintiffs seek summary judgment on their claims.³ For the reasons that follow, the Court grants Plaintiffs' Motion.

I. BackgroundA. The Endangered Species Act

The U.S. Supreme Court has described the ESA as “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation,” reflecting “a conscious decision by Congress to give endangered species priority over the ‘primary missions' of federal agencies.” TVA v. Hill, 437 U.S. 153, 180, 185, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). The purpose of the ESA is “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved” and “to provide a program for the conservation of such endangered species and threatened species.” 16 U.S.C. § 1531(b). Pursuant to the ESA, FWS lists species that are “endangered” and also designates their “critical habitats.” 16 U.S.C. § 1533. A species is endangered if it “is in danger of extinction throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6). A species' critical habitat includes those areas “essential to the conservation of the species.” 16 U.S.C. § 1532(5).⁴

Section 7(a)(2) of the ESA (“§ 7”) requires that each federal agency (the “action 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 the designated critical habitat of the listed species. 16 U.S.C. § 1536(a)(2). To assist action agencies in complying with this provision, § 7 and its implementing regulations set out a detailed consultation process for determining the impacts of the proposed agency action. Id.; 50 C.F.R. § 402. If an agency determines that its proposed action “may affect” listed species or critical habitat, it must formally consult with the “consulting agency”.⁵ 50 C.F.R. § 402.14(a). Formal consultation begins with the preparation of a biological assessment by the action agency evaluating (1) the potential effects of the action on listed species and designated critical habitat and (2) whether any such species or habitat are likely to be adversely affected. 16 U.S.C. § 1536(c); 50 C.F.R. § 402.12(a). Formal consultation is completed by the issuance of a BiOp by the consulting agency assessing whether the proposed action is “likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat” (a “jeopardy” BiOp) or not (a “no jeopardy” BiOp). 50 C.F.R. § 402.14(h)(3), ( l )(1). The BiOp must include “a summary of the information on which the opinion is based” and “a detailed discussion of the effects of the action on listed species or critical habitat.” 50 C.F.R. § 402.14(h)(1), (2). Both the action agency and the consulting agency must use the “best scientific and commercial data available” during the consultation process and in drafting the BiOp. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(d), (g)(8).

In addition to the procedural requirements of § 7 ( i.e. the consultation and BiOp process), an action agency has an independent and continuing duty to avoid taking action that would jeopardize the continued existence of a listed species or adversely modify the critical habitat of such a species. 16 U.S.C. § 1536(a)(2); Pyramid Lake Paiute Tribe of Indians v. U.S. Dep't of the Navy, 898 F.2d 1410, 1415 (9th Cir.1990) (an action agency “may not rely solely on a FWS [BiOp] to establish conclusively its compliance with its substantive obligations under section 7(a)(2)”). An action agency cannot abrogate its duty to ensure that its actions comply with § 7; it has an independent duty to ensure that its reliance on a BiOp is not arbitrary or capricious. Id.

B. Section 321 of the Defense Authorization Act of 2004

Section 321 of the Defense Authorization Act of 2004 (“§ 321”), Pub.L. No. 108–136, 117 Stat. 1392, 1437, amends § 7 of the ESA as applied to Fort Huachuca and describes the manner in which § 7 is to be applied during interagency consultation:

(a) LIMITATION ON FEDERAL RESPONSIBILITY FOR CIVILIAN WATER CONSUMPTION IMPACTS.

(1) LIMITATION.—For purposes of section 7 of the [ESA], concerning any present and future Federal agency action at Fort Huachuca, Arizona, water consumption by State, local, and private entities off of the installation that is not a direct or indirect effect of the agency action or an effect of other activities that are interrelated or interdependent with that agency action, shall not be considered in determining whether such agency action is likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. § 321(a)(1), 117 Stat. 1392, 1437. In addition to narrowing the application of § 7 to water consumption directly or indirectly associated with the Fort and its induced population, and excluding consideration of all water consumption by any other source, § 321 also recognizes the Upper San Pedro Partnership (“USPP”) and its efforts to “establish a collaborative water use management program in the Sierra Vista Subwatershed, Arizona, to achieve the sustainable yield of the regional aquifer.” § 321(b), 117 Stat. 1392, 1437. The USPP is a consortium of 21 local, state, and federal agencies and private organizations with a goal of protecting the Upper San Pedro River and the San Pedro Riparian National Conservation Area (“SPRNCA”). Id. Section 321 directs the Secretary of the Interior, in cooperation with and on behalf of the USPP, to submit a series of reports to Congress documenting the USPP's progress and “the water use management and conservation measures that have been implemented and are needed to restore and maintain the sustainable yield of the regional aquifer by and after September 30, 2011.” § 321(c)(1), (d), 117 Stat. 1392, 1438–39.

C. The San Pedro River, Huachuca Water Umbel, and Southwestern Willow Flycatcher

The San Pedro River flows north from Mexico through southeastern Arizona and is the only remaining free-flowing undammed river in the desert Southwest. Plaintiffs describe the river and its surrounding riparian habitat as “an extraordinary biological treasure chest, housing an astonishing number of mammals and reptiles, upland grasses, and native trees and shrubs” and “one of the richest areas of biodiversity and most important corridors for migrating songbirds in the United States.” Id. In 1988, Congress created the San Pedro Riparian National Conservation Area to “protect the riparian area and the aquatic, wildlife, archeological, paleontological, scientific, cultural, education, and recreational resources of the public lands surrounding the San Pedro River in Cochise County, Arizona.” 16 U.S.C. § 460xx(a).

Among the many species found in the San Pedro River and surrounding habitat are two endangered species: the Huachuca Water Umbel and the Southwestern Willow Flycatcher. The umbel, listed as an endangered species by FWS in 1997, is an “herbaceous, semiaquatic perennial plant with slender, erect leaves that grow from creeping rhizomes.” 62 Fed.Reg. 665, 666 (Jan. 6, 1997). In 1999, FWS designated critical habitat for the umbel: a total of 51.7 miles of streams or rivers in Cochise and Santa Cruz Counties, Arizona, including 33.7 miles of the San Pedro River within the SPRNCA and 3.8 miles in Garden Canyon within the Fort's boundaries. 64 Fed.Reg. 37441 (July 12, 1999); 50 C.F.R. § 17.96. FWS determined that these areas contained the primary constituent elements critical to the umbel:

(1) Sufficient perennial base flows to provide a permanently or nearly permanently wetted substrate for growth and reproduction of [the umbel];

(2) A stream channel that is relatively stable, but subject to periodic flooding that provides for rejuvenation of the riparian plant community and produces open microsites for [umbel] expansion;

(3) A riparian plant...