South Yuba River Citizens League v. Nat'l Marine Fisheries Serv., CIV. S-06-2845 LKK/JFM
| Decision Date | 28 April 2011 |
| Docket Number | NO. CIV. S-06-2845 LKK/JFM,CIV. S-06-2845 LKK/JFM |
| Parties | SOUTH YUBA RIVER CITIZENS LEAGUE and FRIENDS OF THE RIVER,Plaintiffs, v. NATIONAL MARINE FISHERIES SERVICE, et al.,Defendants. |
| Court | U.S. District Court — Eastern District of California |
This order addresses the appropriate timeline for remand to the National Marine Fishery Service to complete a new Biological Opinion concerning operations of the Englebright and Daguerre dams on the Yuba River. In an order issued on July 8, 2010, (the "July Order") this court held that the National Marine Fishery Service acted arbitrarily and capriciously in issuing a 2007 Biological Opinion ("BiOp") that concluded that operations associated with the Englebright and Daguerre dams posed no jeopardy to the survival ofspring-run Chinook salmon ("chinook, "), Central Valley Steelhead ("steelhead"), and green sturgeon, all of which are on the threatened species list. For the reasons stated below, the court finds it appropriate to remand the matter to the NMFS to prepare a BiOp consistent with this court's July Order by December 12, 2011. A further order from this court will address whether any of the interim measures that plaintiffs have requested will be required during the remand process.
This court's July Order addressed claims by plaintiff that the National Marine Fishery Service acted arbitrarily and capriciously in adopting the BiOp, in violation of Section 7 of the Endangered Species Act. This court held that the BiOp was arbitrary and capricious because it concluded that the operation of the dams would pose "no jeopardy" to the threatened fish, when that conclusion was not supported by the record. Upon a finding that the project poses no jeopardy to the survival or recovery of a threatened species, an agency may operate the project pursuant to an Incidental Take Statement ("ITS"). The ITS specifies any incidental "takings" of individual species that will result from the project, the mitigation measures that are necessary to minimize the takings, and sets forth the terms and conditions that must be complied with to implement those mitigation measures. The court held that the NMFS had not sufficiently supported its no-jeopardy conclusion, "but not that a jeopardy conclusion was inescapable." July 8 Order 16:18.
The court ordered additional briefing on the issue of whether the Corps had violated the terms and conditions of the ITS, and whether the plaintiffs would be entitled to preliminary relief if such a violation had occurred. On November 16, 2010, after supplemental briefing on the issue the court dismissed as prudentially moot plaintiffs' claim that the Corps had violated the ITS, and denied plaintiffs' motions for a preliminary injunction. On November 23, 2010, this court entered an order approving a stipulation by the parties. In that stipulation, the parties agreed, inter alia, that the BiOp and ITS should not be vacated during remand. Thus, the project is currently operating pursuant to the 2007 BiOp and the ITS.
A timeline for remanding a matter back to the agency under the Endangered Species Act should be "reasonable." Conservation Council v. Babbitt, 24 F. Supp. 2d 1074, 1076 (D. Haw. 1998)(citing Environmental Defense Center v. Babbitt, 73 F.3d 867, 872 (9th Cir. 1995)). See also Ctr. for Biological Diversity & Cal. Native Plant Soc'y v. Norton, 212 F. Supp. 2d 1217 (S.D. Cal. 2002)("The Court will therefore set a reasonable timeline for defendants to complete the critical habitat determination" required by the ESA.) Courts may consider such constraints as the agency's "budgetary shortfalls, workload constraints, and other relevant factors when setting the timeline." Id.
The parties do not dispute that the matter should be remandedback to the NMFS to prepare a new BiOp that satisfies the deficiencies identified in this court's July Order. See Pls.' Final Remedy Brief ("Remedy Brief") 29:24-27, ECF No. 363; Federal Defs.' Opp'n to Mot. for Inj. ("Defs.' Opp'n.) 10:7-8, ECF No. 372. The parties disagree, however, on how much time is reasonably needed for the preparation of a new BiOp. Plaintiffs request that the court order defendants to issue the new BiOp by June 6, 2011, six months from the filing of plaintiffs' final remedy brief. Remedy Brief 29. Defendants, on the other hand, seek a June 30, 2012 deadline. Defs.' Opp'n 12.
The regulations promulgated pursuant to the ESA create a presumptive deadline of 135 days from the completion of a Biological Assessment to the issuance of a BiOp. See 50 C.F.R. 402.14(e). Typically, the Biological Assessment is prepared before a project commences in order to determine whether a project is likely to adversely affect a listed species or habitat. 50 C.F.R. § 402.02. Following the completion of the Biological Assessment, the regulations provide for a 90-day period for consultation between the "service" (here, the NMFS) and the "agency" (here, the Army Corps of Engineers). After the consultation period, the regulations provide for 45 days for the issuance of the BiOp. 50 C.F.R. 402.14(e). Thus, the BiOp should be issued within a total of 135 days after the Biological Assessment is completed. The 135-day period is not mandatory, and may be extended by agreement between the service and the agency. In this case, both of those entities have jointly submitted an extended schedule and the courtassumes that they have agreed to extend the time line set out in 50 C.F.R. 402.14(e).
The Biological Assessment, consultation, and BiOp processes are typically completed while the project under review is not yet operational and no harm to any species or habitat is occurring. Here, the project is operating pursuant to a BiOp that the court has found to be insufficient. Thus the 135 period and the ability of the agency and the service to extend the timeline indefinitely is not directly applicable in this case. Instead, the 135 days described in 50 CFR 402.12(e) serves as a guide for the court's "reasonableness" analysis in instant case. In other words, the court, lacking other authoritative guidance on the matter, 1 defers to the regulations promulgated jointly by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, which conclude that 135 days is a reasonable period in which to complete a BiOp. Because the project is currently ongoing without a valid BiOp and there is a possibility that endangered species are being harmed, the court concludes that it is defendant's burden to show that a period of more than 135 would be reasonable under thecircumstances.
The BiOp under which the project is currently operating was determined by this court to be insufficient on July 8, 2010. July Order. The defendants indicated at the hearing held on March 7, 2011 that NMFS and the Corp have taken steps towards the preparation of a new BiOp. The defendants stated that a new Biological Assessment would be completed in June 2011. Hearing Transcript 30:16. Plaintiffs assert that it would be reasonable to require the defendants to issue a new BiOp by June 30, 2011--six months from the date that plaintiffs filed their remedy brief. They argue that this is reasonable because NMFS and the Corps have indicated that they have already started work on the new BiOp. Remedy Brief 30:5. Plaintiffs also contend that defendants should not wait for a new Biological Assessment to be completed by the Corps in June 2011, before starting work on the new BiOp because information for the new BiOp can be drawn from the previous Biological Assessment. Reply, 1, ECF. No. 377.
Defendants, on the other hand, request a one-year period after the issuance of the Biological Assessment to complete the new BiOp. Defendants argue that this additional time is ...
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