32 ELR 20569 | Environmental Law Reporter | copyright © 2002 | All rights reserved

Southwest Center for Biological Diversity v. Babbitt

ELR Digest

The court holds that the Bureau of Reclamation's failure to implement the reasonable and prudent alternatives (RPAs) of a U.S. Fish and Wildlife (FWS) biological opinion (BO) for a water resources project in Arizona violated Endangered Species Act (ESA) § 9 by resulting in the take of an endangered or threatened species of native fish. The FWS issued a BO that found that the project would jeopardize native fish and that implementation of the RPAs was necessary to protect native fish in the vicinity of the project. Subsequently, the BO was amended five times to extend deadline dates in the RPAs. An environmental group challenged the BO, claiming that the RPAs do not remove native fish from jeopardy, that the amendments to the RPAs were arbitrary and capricious, and that the failure to properly implement the RPAs resulted in an unlawful take.

The court first holds that the FWS did not act arbitrarily and capriciously or abuse its discretion when it adopted the final RPAs. Although the FWS adopted measures for the final RPAs that were less protective of the threatened and endangered species than measures in the draft RPAs, the FWS need only adopt final RPAs that comply with the ESA § 7 jeopardy standard. Upon review of the record, and in light of the substantial deference given to the FWS, the FWS adoption of each of the elements of the final RPAs was reasonable.

The court next holds that the FWS' amendments to the RPA were arbitrary and capricious. The amendments, and the new final RPA that they produced, are not based on scientific opinion. The BO establishes that time is of the essence in implementing the RPAs, and thus, the FWS created mandatory deadlines requiring completion of the RPAs within specific time frames. The BO also states that the RPAs are nondiscretionary. The amendments, however, state that time is not of the essence. If the FWS wishes to make such an assertion in reformulating the RPA, it must be based on the best available scientific and commercial data. The FWS failed to provide a scientific basis for such a conclusion, and there is no evidence that such interests played a role in the FWS' amendments to the RPAs. Thus, the amendments are not in accordance with law, and the Bureau of Reclamation must reinitiate consultation with the FWS to address the time limits in the RPAs.

The court then holds that the Bureau of Reclamation's failure to implement the RPAs as required by the BO resulted in a take of native fish prohibited by ESA § 9. The bureau is not exempt from the take provision because such exemption only applies if the RPAs are implemented, and as the court determined in addressing the amendments to the RPAs, the bureau failed to properly implement the RPAs. Moreover, a take has occurred in the construction of the water resource project that led to the incursion of non-native red shiner fish into the habitat of endangered and threatened native fish. This incursion has led to or is reasonably certain to lead to the imminent loss of native fish. Further, the take is attributable to the water resource project. Consequently, the court determines that it must hold a hearing to determine if it should grant an injunction requiring the Bureau of Reclamation to sever the water connections between the project and the habitat or the threatened and endangered native fish. However, the court does issue an order requiring the Bureau of Reclamation to continue construction of fish barriers contemplated by the RPAs.

The full text of this decision is available from ELR (41 pp., ELR Order No. L-481).

Counsel for Plaintiff
Katherine A. Meyer
Meyer & Glitzenstein
1601 Connecticut Ave. NW, Ste. 450, Washington DC 20009
(202) 588-5206

Counsel for Defendants
Andrew C. Mergen
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]

32 ELR 20569 | Environmental Law Reporter | copyright © 2002 | All rights reserved