Ctr. for Biological Diversity v. Bernhardt
| Decision Date | 31 March 2022 |
| Docket Number | CV-20-00106-TUC-RCC |
| Parties | CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. David BERNHARDT, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
Heidi J. McIntosh, Pro Hac Vice, Stuart C. Gillespie, Pro Hac Vice, Thomas R. Delehanty, Pro Hac Vice, Earthjustice, Denver, CO, for Plaintiffs.
John H. Martin, US Dept. of Justice, Environmental & Natural Resources Division, Denver, CO, for Defendants David Bernhardt, Amy Lueders, Mark T. Esper, Ryan D. McCarthy, Laura A. Potter.
Before the Court is Plaintiffs Center for Biological Diversity, Maricopa Audubon Society, and Sierra Club's (collectively "Plaintiffs") Motion for Summary Judgment (Doc. 17)1 and Motion to Complete or Supplement the Administrative Record (Doc. 24). The Court also considers Defendants United States Fish and Wildlife Service ("FWS"), David Bernhardt (in his official capacity as Secretary of the Interior), Aurelia Skipwith (in her official capacity as Director of the FWS), Amy Leuders (in her official capacity as Regional Director of FWS Southwest Region), Mark Esper (in his official capacity as Secretary of Defense), Ryan McCarthy (in his official capacity as Secretary of the Army), and Laura Potter's (in her official capacity as Senior Commander of Fort Huachuca) (collectively "Defendants" or "Agencies") Combined Cross-Motion for Summary Judgment. (Doc. 25.)
This matter challenges the conclusion in FWS's 2014 Biological Opinion ("BiOp"), which determined that Fort Huachuca's ("Fort") groundwater pumping2 near the San Pedro River Basin did not jeopardize the existence of four species: the western yellow-billed cuckoo, the southwestern willow flycatcher, the Huachuca water umbel, and the northern Mexican gartersnake. (Doc. 1.) According to Plaintiffs, the Fort erroneously assumed that the purchase of the Preserve Petrified Forest ("PPF") and the Clinton/Drijvers easements would offset the water deficit from the Fort's groundwater pumping. (Doc. 18 at 38–46.) Plaintiffs assert that the Fort's groundwater pumping in fact results in a groundwater deficit that threatens the named species. (Id. at 46.) They allege FWS's BiOp was faulty because the projected effects of groundwater pumping did not look far enough into the future; Plaintiffs believe the effects of the Fort's pumping will not be apparent until long after the timeline considered by FWS. (Id. at 33–37.) Furthermore, Plaintiffs contend that the BiOp failed to consider the cumulative effects of the Fort's groundwater pumping and climate change. (Id. at 38–42.) Finally, Plaintiffs assert that the Agencies failed to reinitiate consultation after the listing of the cuckoo and gartersnake. (Id. at 48–55.)
As a result, Plaintiffs claim that the 2014 BiOp was arbitrary and capricious and ask the Court to vacate the BiOp and order reinitiation of consultation. (Id. at 63.) Plaintiffs also ask the Court to supplement the Administrative Record ("AR") with several additional documents. (Doc. 24.) The Agencies counter that the Court should grant summary judgment in their favor because the 2014 BiOp was valid. (Doc. 25.) They further assert that supplementation of the AR is inappropriate. (Doc. 27.)
The Court first reviews the statutory framework for claims under the Endangered Species Act, determines where supplementation is appropriate, and then analyzes the parties’ cross-summary judgment motions.
The Endangered Species Act ("ESA"), 16 U.S.C. § 1531, et seq., "is a comprehensive scheme with the broad purpose of protecting endangered and threatened species." Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt. , 698 F.3d 1101, 1106 (9th Cir. 2012) ; see also 16 U.S.C. § 1531.3 When enacting the ESA, Congress was primarily concerned with "halt[ing] and revers[ing] the trend toward species extinction, whatever the cost." Tenn. Valley Auth. v. Hill , 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). Yet, the ESA was intended not only "to forestall the extinction of the species (i.e., promote species survival), but to allow a species to recover to the point where it may be delisted." Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv. , 378 F.3d 1059, 1070 (9th Cir. 2004). To address these concerns, the ESA requires federal agencies to adhere to certain procedural and substantive requirements. Forest Guardians v. Johanns , 450 F.3d 455, 457 (9th Cir. 2006). These duties are as follows:
1. Informal Consultation and Biological Assessment
"Procedurally, before initiating any action in an area that contains threatened or endangered" land-based species, federal action agencies (in this instance, the Fort) must informally consult with the appropriate consulting agency (in this instance, FWS) "to determine the likely effects of any proposed action on the species and its critical habitat." Conservation Cong. v. U.S. Forest Serv. , 720 F.3d 1048, 1051 (9th Cir. 2013). If a listed species may be present in an action area, the action agency must create a Biological Assessment. 16 U.S.C. § 1536(c)(1). The Biological Assessment is used to identify "any endangered species or threatened species which is likely to be affected by such action," id. , and to determine whether to engage in formal consultation, 50 C.F.R. § 402.12(k)(1). The Biological Assessment may serve as the basis for a BiOp. 50 C.F.R. § 402.12(k)(2).
2. Formal Consultation and Biological Opinion
If an action agency finds that an action may affect a listed species or its habitat, the action agency must typically initiate formal consultation with the appropriate consulting agency. 50 C.F.R. § 402.14(a). The formal consultation process culminates in the consulting agency's production of a BiOp that advises the action agency as to whether the proposed action, either alone or in combination with other effects, would endanger the existence of the listed species or adversely modify its habitat. Conservation Cong. , 720 F.3d at 1051 (citing 50 C.F.R. § 402.14(g)(4) ). The BiOp must conclude whether the agency's action jeopardizes the listed species; this is referred to as the "jeopardy" or "no jeopardy" opinion. 50 C.F.R. § 402.14(h)(1)(iv). An action that jeopardizes a species is one that "reduce[s] appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species." 50 C.F.R. § 402.02. The BiOp's "jeopardy" or "no jeopardy" opinion must be based on "the best scientific and commercial data available." 16 U.S.C. § 1536(a)(2) ; 50 C.F.R. §§ 402.14(c), (h)(iv)(A)–(B). A BiOp is a final action that may be reviewed by the district court. Bennett v. Spear , 520 U.S. 154, 178, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997).
Substantively, Section 7 of the ESA imposes an independent and continuing obligation upon action agencies to avoid actions that would jeopardize the existence of a listed species or adversely modify its habitat. 16 U.S.C. § 1536(a)(2). Therefore, the action agency cannot be relieved of its duty to adhere to the ESA simply through compliance with the BiOp; it has an independent duty to ensure that its reliance is not arbitrary or capricious. Pyramid Lake Paiute Tribe of Indians v. U.S. Dep't of Navy , 898 F.2d 1410, 1415 (9th Cir. 1990) (); Wild Fish Conservancy v. Salazar , 628 F.3d 513, 532 (9th Cir. 2010) ().
To ensure compliance with the independent substantive duties created by Section 7, action agencies like the Fort must reinitiate consultation if: (1) "new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered"; (2) the action considered in the BiOp is "subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the BiOp"; (3) "a new species is listed or critical habitat designated that may be affected by the identified action"; or (4) the injury to the species (a/k/a "take") is greater than anticipated. 50 C.F.R. § 402.16(a)(1)–(4).
3. Species Proposed for Listing
When a species has been proposed for listing, but is not currently listed, the action agency must "confer" with the consulting agency if an action would "likely jeopardize the continued existence of any proposed species" or "result in the destruction or adverse modification of [the] proposed critical habitat." 16 U.S.C. § 1536(a)(4) ; 50 C.F.R. § 402.10(c). If the action agency and consulting agency find that a conference is warranted, the agencies may later enter into formal consultation. 50 C.F.R. §§ 402.10(c) – (d). After conferring, the agencies issue a conference opinion. Id. The conference opinion "may be adopted as the [BiOp] when the species is listed or critical habitat is designated, but only if no significant new information is developed ... and no significant changes to the Federal action are made that would alter the content of the opinion." Id.
A court may "set aside the agency decision if it is ‘unsupported by substantial evidence’ or ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.’ " Thompson v. U.S. Dept. of Labor , 885 F.2d 551, 555 (9th Cir. 1989). An agency decision is arbitrary and capricious if the agency "has relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view...
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