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Center for Biological Diversity v. United States Fish & Wildlife Serv.

United States Court of Appeals, Ninth Circuit

September 17, 2015

CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff-Appellant,
v.
U.S. FISH & WILDLIFE SERVICE; SALLY JEWELL, Secretary of the Interior, Defendants-Appellees, SOUTHERN NEVADA WATER AUTHORITY; COYOTE SPRINGS INVESTMENT, LLC, Intervenor-Defendants--Appellees

Argued and Submitted, San Francisco, California April 11, 2014

Resubmitted for Decision September 9, 2015

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Nevada. D.C. No. 3:10-cv-00521-ECR-WGC. Edward C. Reed, Jr., Senior District Judge, Presiding. Submission Vacated June 24, 2014.

SUMMARY[**]

Environmental Law

The panel affirmed the district court's summary judgment in favor of the U.S. Fish and Wildlife Service and intervenors Southern Nevada Water Authority and Coyote Springs Investment, LLC in an action brought by the Center for Biological Diversity challenging the Fish and Wildlife Service's Biological Opinion which determined that the execution of a Memorandum of Agreement, concerning a groundwater pump test in Nevada, would not jeopardize the Moapa dace, an endangered species.

The panel held that the Center for Biological Diversity had standing.

The panel rejected the Center for Biological Diversity's challenges to the Biological Opinion. Specifically, the panel found no evidence in the record that the Fish and Wildlife Service relied on improper factors, failed to consider important aspects of the problem, offered explanations for its decision that were counter to the evidence before it, or offered implausible explanations for its decision. The panel held that the Fish and Wildlife Service's determination that its participation in the Memorandum of Agreement would not cause jeopardy to the Moapa dace was not arbitrary, capricious, or in violation of the Endangered Species Act.

John Buse (argued) and Lisa Belenky, Center for Biological Diversity, San Francisco, California; William J. Snape, III, Center for Biological Diversity, Washington, D.C., for Plaintiff-Appellant.

Ignacia S. Moreno, Assistant Attorney General, James J. Dubois, Coby Howell, Ellen J. Durkee, and Nina C. Robertson (argued), United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for Defendants-Appellees United States Fish & Wildlife Service and Sally Jewell.

Murray D. Feldman (argued), Holland & Hart, Boise, Idaho; Craig D. Galli, Holland & Hart, Salt Lake City, Utah; Dana R. Walsh, Southern Nevada Water Authority, Las Vegas, Nevada, for Intervenor-Defendant-Appellee Southern Nevada Water Authority.

Kirk B. Lenhard, Scott M. Schoenwald, and Bradley J. Herrema, Brownstein Hyatt Farber Schreck, LLP, Las Vegas, Nevada, for Intervenor-Defendant-Appellee Coyote Springs Investment, LLC.

Before: Mary M. Schroeder and Consuelo M. Callahan, Circuit Judges, and Robert W. Pratt, Senior District Judge.[*] Opinion by Judge Pratt.

OPINION

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PRATT, District Judge:

This case concerns Defendant-Appellee U.S. Fish and Wildlife Service's (" FWS" ) decision to enter into a Memorandum of Agreement (" MOA" ) with several non-federal entities who were subject to a Nevada State Order mandating a groundwater pump test. FWS anticipated that the pump test may affect an endangered species, the Moapa dace, and worked with the parties to obtain an agreement to implement a variety of conservation measures in advance of the groundwater pump test. FWS conducted a formal consultation under the Endangered Species Act (" ESA" ), 16 U.S.C. § 1531 et seq., and determined in a Biological Opinion (" Biop" ) that FWS's execution of the MOA would not jeopardize the Moapa dace. Plaintiff-Appellant Center for Biological Diversity (" CBD" ) challenged the Biop and the district court granted summary judgment in favor of FWS and Intervenors-Defendants-Appellees Southern Nevada Water Authority (" SNWA" ) and Coyote Springs Investment, LLC (" CSI" ).

In this opinion, we resolve a challenge by FWS and Intervenors to CBD's standing. Because we conclude that CBD does have standing, we also resolve CBD's claims that the Biop was arbitrary and capricious because: (1) it unlawfully relies on conservation measures that are inadequate and unenforceable; (2) it was not based on the best available scientific information; and (3) it failed to evaluate all

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foreseeable consequences of the proposed action. We reject CBD's challenges to the Biop and affirm the district court's grant of summary judgment.

I. BACKGROUND

A. The Statutory Scheme

The ESA " is a comprehensive scheme with the broad purpose of protecting endangered and threatened species." Ctr. for Biological Diversity v. United States BLM, 698 F.3d 1101, 1106 (9th Cir. 2012) (hereinafter " BLM " ) (citation and internal quotation marks omitted). This case centers on two provisions central to the ESA's protections: section 9, which imposes a blanket prohibition on the " take" of any endangered species,[1] 16 U.S.C. § 1538(a)(1)(B), and section 7, which " imposes an affirmative duty to prevent violations of Section 9 upon federal agencies." Ariz. Cattle Growers' Ass'n v. FWS, 273 F.3d 1229, 1238 (9th Cir. 2001) (citing 16 U.S.C. § 1536(a)(2)).

Section 7(a)(2) of the ESA requires every federal agency to " insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence[2] of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species." 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a). To achieve this substantive requirement, section 7 and its implementing regulations impose specific procedural duties on federal agencies. " Each Federal agency shall review its actions at the earliest possible time to determine whether any action may affect listed species or critical habitats." 50 C.F.R. § 402.14(a). If the agency determines that its action " may affect" a listed species or habitat, it must engage in informal or formal consultation with the Secretary of the Interior or his designee--in this case, FWS.[3] San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 596 (9th Cir. 2014); see also 16 U.S.C. § 1536(a)(4); 50 C.F.R. § 402.14. If informal consultation results in a written agreement between the action agency and the consultation agency that the proposed action " is not likely to adversely affect" any endangered or threatened species, no further action is necessary. 50 C.F.R. § 402.14(b)(1). However, if at any point FWS concludes that the proposed action is " likely to adversely affect" a listed species or critical habitat, formal consultation is required. Jewell, 747 F.3d at 596; 50 C.F.R. § § 402.13, 402.14.

During formal consultation, the FWS is obligated to use the " best scientific and commercial data available," 16 U.S.C. § 1536(a)(2), to " evaluate[] the effects of the proposed action on the survival of [the] species and any potential destruction or adverse modification of critical habitat." Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d 917, 924 (9th Cir. 2008) (citing 16 U.S.C. § 1536(b)). At the

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conclusion of the formal consultation process, FWS must provide a biological opinion setting forth a summary of the information on which the opinion is based, a detailed discussion of the effects of the agency action on the listed species, and an opinion as to whether the proposed agency 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." 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § § 402.14(g)(4), (h)(1)-(3). " If jeopardy . . . is found, [FWS] shall suggest those reasonable and prudent alternatives which [it] believes would not violate [§ 7(a)(2)] and can be taken by the . . . applicant in implementing the agency action." 16 U.S.C. § 1536(b)(1)(B)(3)(A). If it is determined that neither jeopardy nor adverse modification is likely, FWS " can issue an 'Incidental Take Statement' which, if followed, exempts the action agency from the prohibition on takings found in Section 9 of the ESA." Nat'l Wildlife Fed'n, 524 F.3d at 924-25 (footnote omitted); 16 U.S.C. § 1536(b)(4).

B. The Moapa dace

The Moapa dace is a small, thermophilic fish found only in the Muddy River, and particularly in the warmer waters of the upper springs and tributaries of the Warm Springs area in Southeastern Nevada. Biop at 14-15. Reproduction occurs year-round and is confined to the upper, spring-fed tributaries where water temperatures vary from 84.2 to 89.9 degrees Fahrenheit. Id. at 15. Juveniles are found almost exclusively in the spring-fed tributaries, whereas adults, who have the greatest tolerance to cooler water temperatures, are also found in the mainstream of the Muddy River. Id.

The Moapa dace, a member of the North American minnow family, Cyprinidae, was listed as endangered under the Endangered Species Preservation Act of 1966 on March 11, 1967, and has been protected by the ESA since its inception in 1973. Native Fish & Wildlife, 32 Fed.Reg. 4001. Though critical habitat has not been designated for the species, FWS has assigned the Moapa dace the highest recovery priority because it is the only species in the genus Moapa, there is high degree of threat to its continued existence, and there is a high potential for its recovery. Biop at 14. Primary threats to the dace include non-native fishes, parasites, habitat loss from water diversions and impoundments, fire due to encroaching non-native plant species, and reductions to surface spring-flows resulting from groundwater development, which reduces spawning, nursery habitats, and the food base for the dace. Id. at 15.

In 1979, 106 acres of springs and wetlands located in the Warm Springs Area of the Upper Moapa Valley were designated as the Moapa Valley National Wildlife Refuge (" MVNWR" ) for the protection of the endangered Moapa dace. Id. at 17-18. The thermal headwaters of the springs on the MVNWR are some of the most productive Moapa dace spawning habitat in the area. Id. at 18. The MVNWR consists of three units encompassing the major spring groups: the Pedersen Unit, the Plummer Unit, and the Apcar Unit (also known as Jones Spring). Id. In 2005, it was estimated that throughout the approximately 5.6 miles of habitat in the upper Muddy River system, the population of dace was about 1,300. Id. at 24. Approximately 95% of this total population occurs within one major tributary that includes 1.78 miles of spring complexes that emanate from the three major spring groups and their tributaries. Id. About 28 percent of the Moapa dace population was located on the MVNWR, while approximately 55 percent occupied the Refuge Stream, which is supplied

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by the spring complexes emanating from the MVNWR. Id. The Refuge Stream reach accounted for the highest density of Moapa dace, with the Plummer, Pedersen, and Apcar Units containing the second, third, and fourth highest densities, respectively.[4] Id. at 24, 26.

C. The parties, their water rights, and the State pump-test order

CBD is a non-profit corporation actively involved in species and habitat protection issues throughout North America and the Pacific. Its members and staff live, work, visit, and recreate in areas of Nevada that serve as Moapa dace habitat.

FWS is a federal agency that is part of the Department of the Interior. Its responsibilities include implementing the ESA and administering the National Wildlife Refuge System. Pursuant to Permit No. 56668, FWS owns a Nevada State water right certificate (the " FWS Water Right" ) for a flow rate of not less than 3.5 cubic feet per second (" cfs" ) as measured at the Warm Springs West flume for maintenance of the habitat of the Moapa dace and other wildlife purposes. The priority date for the FWS water right is August 15, 1991.

Several entities own permitted water rights with appropriation priorities senior to the FWS Water Right. SNWA is a political subdivision of the State of Nevada, which owns 9,000 acre feet per year (" afy" )[5] of water rights (the " SNWA Water Rights" ) with points of diversion within the Coyote Spring Valley hydrographic basin under Permit Nos. 49414, 49660-49662, and 49978-49987. CSI is a private landowner that owns 4,600 afy of water rights (the " CSI Water Rights" ) with points of diversion within the Coyote Spring Valley hydrographic basin under Permit Nos. 70429 and 70430. The Moapa Band of Paiute Indians (the " Tribe" ) owns 2,500 afy of water rights (the " Tribe ...


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