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Center for Biological Diversity v. United States Fish and Wildlife Service

ELR Citation: 50 ELR 20036
Nos. CV-17-00475-TUC-JAS (L), CV-17-00576-TUC-JAS (C), and CV-17-00189-TUC-JAS (C), (D. Ariz., 02/10/2020) (Soto, J.)

A district court held that FWS must reconsider its approval of a proposed open-pit copper mine in the Coronado National Forest. An environmental group argued the agency improperly used a heightened standard of review when it determined the mine was unlikely to result in destruction or adverse modification of critical habitat for the endangered jaguar. The court agreed, finding the Service increased the standard from "more likely than not" to "highly probable," which conflicted with the ESA, and did so without a reasoned explanation for the change. The group next argued that FWS failed to assess the tipping point for the threatened northern Mexican gartersnake when it determined whether the snake would be jeopardized by the mine. The court found the Service was required to consider the tipping point because its own record reflected that the mine would have extensive adverse impacts on the snake far into the future, including loss of its habitat, and thus that the failure to do so was arbitrary and capricious. The group also argued that FWS failed to choose a proper take surrogate in its incidental take statement (ITS) for seven threatened or endangered species. The court held the ITS failed to set forth a clear trigger that, when reached, resulted in an unacceptable level of incidental take, invalidating the ESA's safe harbor provision and requiring reinitiation of consultation. It therefore remanded to FWS to reconsider whether the mine was likely to result in destruction or adverse modification of the jaguar's critical habitat under the proper standard, consider the tipping point for the snake species, and consider and formulate a proper ITS.