Rio Grande Silvery Minnow v. Keys

• Citation: 469 F.Supp.2d 973
• Decision Date: 19 April 2002
• Docket Number: No. CV 99-1320 JP/RLP-ACE.,CV 99-1320 JP/RLP-ACE.
• Parties: RIO GRANDE SILVERY MINNOW, et al., Plaintiffs, v. John W. KEYS, III, et al., Federal Defendants, Middle Rio Grande Conservancy District, et al., Defendants-Intervenors.
• Court: U.S. District Court — District of New Mexico

469 F.Supp.2d 973

RIO GRANDE SILVERY MINNOW, et al., Plaintiffs, v. John W. KEYS, III, et al., Federal Defendants, Middle Rio Grande Conservancy District, et al., Defendants-Intervenors.

No. CV 99-1320 JP/RLP-ACE.

United States District Court, D. New Mexico.

April 19, 2002.

COPYRIGHT MATERIAL OMITTED

Alletta d'Andelot Belin, Steve Sugarman, Belin & Sugarman, Santa Fe, NM, Laurence J. Lucas, Land & Water Fund of the Rockies, Boise, ID, for Plaintiffs.

Bradley S. Bridgewater, U.S. Dept. of Justice, Environmental & Natural Resources Division, Denver, CO, Mark A. Brown, U.S. Dept. of Justice, Wild Life & Marine Resources Section, Washington, DC, Andrew A. Smith, John W. Zavitz, U.S. Attorney's Office, District of New Mexico, Albuquerque, NM, for Federal Defendants.

Charles T. DuMars, Christina Bruff DuMars, David Seeley, Law & Resource Planning Associates, Albuquerque, NM, for Middle Rio Grande Conservancy District.

Robert M. White, Michael I. Garcia, Albuquerque City Attorney's Office, District of New Mexico, Albuquerque, NM, Maria O'Brien, Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, NM, Jay F. Stein, Stein & Brockman, PA, Santa Fe, NM, for City of Albuquerque.

Fred Abramowitz, John E. Stroud, Abramowitz, Franks & Stroud, Albuquerque, NM, Karen L. Fisher, Frances C. Bassett, New Mexico Attorney's Office, Water Environment Utility Division, Santa Fe, NM, Stephen R. Farris, New Mexico Attorney. General's Office, Santa Fe, NM, Peggy E. Montano, Trout, Witwer & Freeman, PC, Denver, CO, Daniel R. Rubin, State of New Mexico, Interstate Stream Commission, Santa Fe, NM, for State of New Mexico.

Thomas A. Simons, IV, Frank M. Bond, Faith Kalman Reyes, Simons & Slattery, LLP, Santa Fe, NM, Fred J. Waltz, Taos, NM, for Rio Chama Acequia Association.

MEMORANDUM OPINION AND ORDER

PARKER, Chief Judge.

This is an appeal by Plaintiffs from administrative action by a federal agency, the United States Fish and Wildlife Service ("FWS"), in issuing a final Biological Opinion ("BO") on two endangered species found in the middle Rio Grande basin, the Rio Grande Silvery Minnow (hybognathus amarus) and the Southwestern Willow Flycatcher (empidonax traillii extimus). In preparing to issue its Biological Opinion, FWS consulted with two federal "action" agencies, the Bureau of Reclamation ("BOR"), and the United States Army Corps of Engineers ("the Corps"), under the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq. Plaintiffs challenge the BO itself, as well as the procedure leading up it its issuance.

The parties submitted detailed legal memoranda on the merits of Plaintiffs' claims, and a hearing on the merits was held on November 19, 2001. At the hearing the various parties presented oral arguments. I have thoroughly considered the documents in the administrative record, the arguments of counsel, and the relevant case law. I conclude that the Biological Opinion should be affirmed.

I. Introduction.

At that time the original Complaint was filed, the Plaintiffs primarily challenged the failure by the two federal action agencies, BOR and the Corps, to consult fully with FWS on a broad range of allegedly discretionary water alternatives in order to save the Rio Grande Silvery Minnow and the Southwestern Willow Flycatcher from extinction.

Plaintiffs are the two listed species and several non-profit environmental and conservation organizations acting on behalf of the listed species. In the original Complaint the Defendants were the two federal action agencies, BOR and the Corps, together with various agency officials sued in their official capacities. Several parties with interests in the water in the middle Rio Grande basin were allowed to intervene. These include the Middle Rio Grande Conservancy District ("MRGCD"), the City of Albuquerque, the State of New Mexico, and the Rio Chama Acequia Association. No, claims are made against the Intervenors, but MRGCD has filed a cross-claim under the Quiet Title Act against the United States, asserting title to some of the property within the MRGCD.

On June 29, 2001, shortly before `a scheduled hearing on the merits before this Court, FWS issued its final BO. At the hearing on July 2, 2001, recognizing the legal significance of the issuance of the final BO, Plaintiffs requested' and were granted leave to file a Second Amended Complaint to reflect the effects of the issuance of the June 29 final BO on their claims. The thrust of the Second Amended Complaint is to attack the final BO under the applicable standard of this Court's review of final agency action, while continuing to maintain Plaintiffs' original challenge to the scope of the consultation. The Second Amended Complaint adds as Defendants the United States, FWS, and the Secretary of Interior.

The Second Amended Complaint alleges procedural and substantive violations of Section 7(a)(2) of the ESA (Count 1), and seeks review of the BO under the Administrative Procedures Act, 5 U.S.C. § 701 et seq. ("APA") for these violations (Count 6). The alleged procedural violation is the failure of BOR and the Corps to consult fully with FWS over all their discretionary agency actions. The substantive violation is for allegedly causing jeopardy to the endangered species. Plaintiffs allege that FWS violated the APA when it issued the BO with a Reasonable and Prudent Alternative ("RPA") that allows significant river drying, and that FWS failed to use the best available scientific data as required by the ESA.

The Second Amended Complaint also contains a cause of action against the federal agencies, under Section 7(a)(1) of the ESA (Count 2), for failure to conserve the listed species. Plaintiffs dropped their claim under Section 7(d) of the ESA (Count 3), because that section, applies only during ongoing consultation, and they also dropped their claim against BOR for failure to comply with NEPA (Count 5). The Second Amended Complaint alleges a violation of Section 9 of the ESA for "take" of the species (Count 4). This claim received some attention during the briefing, but Plaintiffs expressly acknowledged at the November 19, 2001 hearing that the take claim is not ripe without further factual development. Finally, Count 7 of the Second Amended Complaint involves Plaintiffs' challenges to FWS's issuance of the Incidental Take Statement ("ITS"). The ITS purports to shield all federal and non-federal water users in the middle Rio Grande basin from "take" liability under Section 9 of the ESA.

II. Standard of Review.

This Court sits as an appellate court with respect to reviewing Plaintiffs' claims regarding final agency action. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Cir.1994). Biological opinions issued under section 7 of the ESA are reviewed under Administrative Procedures Act ("APA") standards to determine whether the opinion is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). See Bennett v. Spear, 520 U.S. 154, 178, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (holding biological opinion was final agency action because it effectively stopped further proceedings by action agency); Wyoming Farm Bureau Federation v. Babbitt, 199 F.3d 1224, 1231 (10th Cir.2000) (review of ESA claims governed by APA); Biodiversity Legal Foundation v. Babbitt, 146 F.3d 1249, 1252 (10th Cir. 1998) (in examining whether FWS's actions violate ESA, court relies on standards of review provided in APA); Pacific Coast Federation of Fishermen's Ass'ns, Inc. v. National Marine Fisheries Serv., 265 F.3d 1028, 1034 (9th Cir.2001) (same). This deferential standard is designed to ensure that the agency's decision was based on relevant factors and that it contained no "clear error of judgment." Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).

A BO is arbitrary and capricious under the APA if the agency has "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 or the product of agency expertise." Pacific Coast Federation of Fishermen's Ass'ns, Inc. v. National Marine Fisheries Serv., 265 F.3d at 1034 (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). "A biological opinion may also be invalid if it fails to use the best available scientific information as" required by 16 U.S.C. § 1536(a)(2)." Id., 265 F.3d at 1034. In deciding disputes that involve primarily issues of fact requiring a high level of technical expertise, the court "must defer to the informed discretion of the responsible federal agencies.'" Marsh v. Oregon Natural Resources Council, 490 U.S. at 377, 109 S.Ct. 1851 (quoting Kleppe v. Sierra Club, 427 U.S. 390, 412, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976)).

III. Background.

A. Endangered Species Act ("ESA").

In 1973, Congress enacted the ESA in response to growing concern about the extinction of various species "as a consequence of economic growth and development untempered by adequate concern and conservation." 16 U.S.C. § 1531(a)(1). The Supreme Court stated: "the plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost." Tennessee Valley Authority v. Hill, 437 U.S. 153, 184, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978).

Listing a species as endangered triggers a consultation procedure required by Section 7 of the ESA. Federal agencies like BOR and the Corps must consult with FWS to "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence" of the species. 16 U.S.C. § 1536(a)(2). This subsection further provides that ...