Defs. of Wildlife v. U.S. Fish & Wildlife Serv.

• Decision Date: 17 August 2016
• Docket Number: Case No. 16-CV-01993-LHK
• Parties: DEFENDERS OF WILDLIFE, et al., Plaintiffs, v. U.S. FISH AND WILDLIFE SERVICE, et al., Defendants.
• Court: U.S. District Court — Northern District of California

DEFENDERS OF WILDLIFE, et al., Plaintiffs, v. U.S. FISH AND WILDLIFE SERVICE, et al., Defendants.

Case No. 16-CV-01993-LHK

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

August 17, 2016

ORDER DENYING MOTION FOR A PRELIMINARY INJUNCTION

Re: Dkt. No. 24

Plaintiffs Defenders of Wildlife, Sierra Club, and Santa Clara Valley Audubon Society (collectively, "Plaintiffs") challenge the actions of Defendants U.S. Fish and Wildlife Service ("FWS") and U.S. Army Corps of Engineers (the "Corps") (collectively, "Federal Defendants") with respect to the development of a solar facility in the Panoche Valley of California. The developer of the proposed solar facility, Panoche Valley Solar, LLC ("PVS") (together with FWS and Corps, "Defendants"), intervened as a defendant. ECF No. 28. Before the Court is Plaintiffs' motion for a temporary restraining order or a preliminary injunction. ECF No. 24. The Court held a hearing on this matter on May 20, 2016. Having considered the oral arguments at the hearing, the submissions of the parties, the relevant law, and the record in this case, the Court hereby DENIES Plaintiffs' motion for a preliminary injunction.

I. BACKGROUND

A. Regulatory Framework

1. Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq.

The ESA contains both substantive and procedural provisions designed to protect species listed under the ESA as threatened or endangered. See Forest Guardians v. Johanns, 450 F.3d 455, 457 (9th Cir. 2006). Three interlocking provisions of the ESA are of particular significance here: Sections 9, 7, and 10. Section 9 prohibits the "take" of any member of a listed species. 16 U.S.C. § 1538(a)(1)(B). To "take" a listed species means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Id. § 1532(19). Notwithstanding that prohibition, private parties such as PVS may obtain authorization for "incidental take"¹ of listed species in two ways: (1) through Section 7, for projects authorized, funded, or carried out by a federal agency; or (2) through Section 10, for projects carried out entirely by the private party. Federal agencies such as the Corps may obtain authorization for incidental take only through Section 7.

Specifically, Section 7(a)(2) governs federal agency actions in which "there is discretionary Federal involvement or control." 50 C.F.R. § 402.03. This section requires a federal agency such as the Corps 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 or threatened species." 16 U.S.C. § 1536(a)(2).

Section 7(b) sets forth the process of consultation, which determines whether an agency action is likely to jeopardize listed species. Id. § 1536(b). If the federal agency proposing an action determines that the proposed action "may affect" a listed species or critical habitat, the agency must engage in either informal or formal consultation with FWS.² 50 C.F.R. § 402.14(a). Formal consultation is ordinarily required if the federal agency concludes that listed species arelikely to be adversely affected. See Forest Guardians, 450 F.3d at 457; see also W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 496 (9th Cir. 2011) (noting that "may affect" has been interpreted broadly to mean "any possible effect, whether beneficial, benign, adverse, or of an undetermined character" (alteration omitted)).

Formal consultation requires FWS to produce a "biological opinion" according to the "best scientific and commercial data available." 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14. The biological opinion evaluates "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 FWS concludes that jeopardy is likely, then the action must be modified or any take resulting from the action is subject to Section 9 liability. Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt. ("BLM"), 698 F.3d 1101, 1107 (9th Cir. 2012).

Alternatively, as occurred in the instant case, if FWS concludes that the proposed action is not likely to result in jeopardy but will incidentally take members of a listed species, FWS includes an "incidental take statement" with the biological opinion. 50 C.F.R. § 402.14(i). The incidental take statement must specify the amount or extent of authorized take, any "reasonable and prudent measures that [FWS] considers necessary or appropriate to minimize such impact," and the mandatory terms and conditions to implement the reasonable and prudent measures. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i). Compliance with the terms and conditions of an incidental take statement shields the agency undertaking the action from Section 9's prohibition against take of listed species. 16 U.S.C. § 1536(o); Or. Nat. Res. Council v. Allen, 476 F.3d 1031, 1034 (9th Cir. 2007) ("[A] BiOp with a no-jeopardy finding effectively green-lights the proposed action under the ESA, subject to the Incidental Take Statement's terms and conditions."). Thus, while the agency "is technically free to disregard the Biological Opinion and proceed with its proposed action, . . . it does so at its own peril." Bennett v. Spear, 520 U.S. 154, 170 (1997). In addition, where the agency's action involves authorization or approval of private party conduct, then the private party is also protected from Section 9 by compliance with the agency's incidentaltake statement.

For projects that do not require authorization or funding from a federal agency, Section 10 allows a private party to seek an incidental take permit directly from FWS. 16 U.S.C. § 1539(a)(1)(B). To receive a Section 10 permit, the applicant must submit a comprehensive conservation plan that provides for mitigation efforts that minimize the project's future impact on listed species. 50 C.F.R. § 17.22(b)(1)(iii). FWS may issue the permit only after affording the opportunity for public comment on the conservation plan. Id. § 17.22. If take is not permitted pursuant to Section 10 or a Section 7 consultation, a developer who undertakes activities that result in the take of listed species may be subject to criminal and civil federal enforcement actions, as well as civil citizen suits. See 16 U.S.C. § 1540.

2. Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq.

The CWA is designed to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To do so, the CWA generally prohibits the discharge of pollutants, including dredged or fill material, into the waters of the United States unless authorized by a permit. Id. § 1311(a); see also 40 C.F.R. § 230.3. Section 404 of the CWA authorizes the Secretary of the Army, through the Corps, to issue permits for the discharge of such dredged or fill material into waters of the United States. 33 U.S.C. § 1344.

Section 404 permits must comply with regulations promulgated by the Corps and the U.S. Environmental Protection Agency, known as the "Section 404(b)(1) Guidelines" or "Guidelines." 33 C.F.R. §§ 320.4(b)(4), 320.4(r)(1)(ii), 325.2(a)(6); see also 40 C.F.R. § 230 et seq. (Guidelines). The Guidelines prohibit the Corps from authorizing a permit if the proposed activity "[j]eopardizes the continued existence" of a listed species. 40 C.F.R. § 230.10(b)(3). The Guidelines further explain that where Section 7 consultation has occurred, the Corps' determination of whether an activity jeopardizes the continued existence of a listed species is determined by the outcome of the consultation process. Id. § 230.30(c). In addition, separate from the Guidelines, the Corps must conduct a public interest review in which the Corps balances the "benefits which reasonably may be expected to accrue" against the project's "reasonablyforeseeable detriments." 33 C.F.R. § 320.4(a). A permit must be denied if it is contrary to the public interest or does not comport with the Guidelines. Id.

3. National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq.

NEPA "is our basic national charter for protection of the environment." Cal. ex rel. Lockyer v. U.S. Dep't of Agric., 575 F.3d 999, 1012 (9th Cir. 2009). NEPA "is a procedural statute that does not mandate particular results, but simply provides the necessary process to ensure that federal agencies take a hard look at the environmental consequences of their actions." High Sierra Hikers Ass'n v. Blackwell, 390 F.3d 630, 639 (9th Cir. 2004) (internal quotation marks omitted). NEPA requires a federal agency to prepare a detailed environmental impact statement for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(c).

"Major federal actions" include permits issued by the Corps pursuant to Section 404 of the CWA. Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1121 (9th Cir. 2004); see also 40 C.F.R. § 1508.18(a). Under NEPA, the Corps must determine the potential impact that a proposed project would have on United States' waters as well as on "those portions of the entire project over which the district engineer has sufficient control and responsibility to warrant Federal review." 33 C.F.R. 325 App. B § 7(b)(1). The Corps has "control and responsibility" for portions of the project in which "the Federal involvement is sufficient to turn an essentially private action into a Federal action. These are cases where the environmental consequences of the larger project are essentially products of the Corps permit action." Id. § 7(b)(2).

B. Factual Background

1. Proposed Project and Threatened Species

PVS proposes to develop and operate a solar energy project in the ecologically sensitive Panoche Valley in San Benito County. When PVS first advanced this project in 2009, PVS proposed a 1,000 megawatt solar...