Center For Biological Diversity et al v. Bureau of Land Management et al
Filing
243
ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT 231 232 234 (Illston, Susan) (Filed on 4/3/2014)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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United States District Court
For the Northern District of California
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CENTER FOR BIOLOGICAL DIVERSITY, et
al.,
Plaintiffs,
v.
No. C 03-02509 SI
ORDER RE: CROSS MOTIONS FOR
SUMMARY JUDGMENT
BUREAU OF LAND MANAGEMENT, et al.,
Defendants, and
AMERICAN SAND ASSOCIATION, et al,
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Defendant-Intervenors.
/
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On February 28, 2014, the Court held a hearing on the parties’ cross-motions for summary
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judgment. For the reasons set forth below, the parties’ cross-motions for summary judgment are
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GRANTED IN PART and DENIED IN PART.
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BACKGROUND
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This dispute marks the continuation of plaintiffs’ challenge to the administration by the Bureau
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of Land Management (“BLM”) of the Imperial Sand Dunes Recreation Area (“ISDRA” or “Dunes”),
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and the biological opinions related to the Dunes prepared by the U.S. Fish and Wildlife Service (“FWS”)
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in accordance with the Endangered Species Act (“ESA”). The lengthy factual and procedural history
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of FWS and BLM’s management actions related to the Dunes and plaintiffs’ prior claims is set forth in
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this Court’s March 14, 2006 Order granting in part and denying in part each side’s motion for summary
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judgment. See Ctr. for Biological Diversity (“CBD”) v. BLM, 422 F. Supp. 2d 1115 (N.D. Cal. 2006).1
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The Court incorporates that history by reference.
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In that decision, the Court held that FWS’s 2005 biological opinion (“BiOp”) for the 2003
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ISDRA Recreation Area Management Plan (the “2003 RAMP”) violated the Endangered Species Act
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in various respects with regard to two listed species, the Peirson’s milk-vetch (“PMV”) and the desert
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tortoise. Id. at 1121-22. The Court also held that FWS unlawfully excluded certain areas when it
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designated critical habitat for the PMV in 2004. Id. at 1122. Finally, the Court held that the BLM
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violated the National Environmental Policy Act by failing to consider interim off-highway vehicle
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(“OHV”) closures2 when it considered alternatives in the Environmental Impact Statement for the 2003
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RAMP, and by failing to adequately examine the impact of the 2003 RAMP on endemic invertebrates.
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Id.
United States District Court
For the Northern District of California
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In response to the Court’s 2006 opinion, in 2008 FWS issued a new critical habitat designation
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for the PMV. 73 Fed. Reg. 8748 (Feb. 14, 2008). Plaintiffs and other groups unsuccessfully challenged
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the new critical habitat designation. See Maddalena v. FWS, No. 3:08-cv-02292-H-AJB, 2010 WL
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9915002 (S.D. Cal. Aug. 5, 2010). In June 2013, the BLM also issued a new Record of Decision
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adopting a new Recreation Area Management Plan (the “2013 RAMP”) for the Dunes. Under the 2013
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RAMP, the 26,000 acre North Algodones Dunes Wilderness remains closed to OHVs, as will an
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additional 9,261 acres of PMV critical habitat. The remainder of the Dunes – over 127,000 acres – will
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be opened to OHV use.
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Environmental Impact Statement (the “2013 EIS”) analyzing the 2013 RAMP. Finally, after engaging
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in consultation pursuant to Section 7(a)(2) of the ESA, in November 2012, FWS issued a new BiOp
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concluding that implementing the 2013 RAMP is not likely to jeopardize the continued existence of the
Prior to issuing the Record of Decision, the BLM prepared a new
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In March of 2000, the Center for Biological Diversity, the Sierra Club, and Public Employees
for Environmental Responsibility filed a complaint alleging that the BLM was in violation of Section
7 of the ESA, 16 U.S.C. § 1536(a)(2), because it had failed to enter into formal consultation with the
Service on the effects of the adoption of the CDCA Plan, as amended by the 1987 RAMP, on threatened
and endangered species. Center for Biological Diversity et al. v. BLM, Case No. 00-0927 WHA-JCS
(N.D. Cal.). Several groups of recreationists in the CDCA area were granted status as defendantintervenors, and the parties ultimately entered into a settlement that established interim actions to be
taken to provide temporary protection for endangered and threatened species pending completion of
consultation between BLM and the Service on the CDCA Plan. See ROD AR Sec.3 at 15997. Pursuant
to the stipulations, BLM temporarily closed five areas in the ISDRA, totaling approximately 49,000
acres, to OHV and other recreational use to protect the Peirson’s milk-vetch, and temporarily closed to
camping a 25,600 acre area to protect the desert tortoise. See BO AR Doc. # 128. These closures were
to remain in place until BLM signed the decision document implementing the new RAMP for the
ISDRA.
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PMV or the desert tortoise.
On September 16, 2013, plaintiffs filed a third amended complaint challenging the 2013 RAMP,
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the 2013 EIS and 2012 BiOp under the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531 et seq.,
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the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq., the Federal Land Policy
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and Management Act of 1976 (“FLPMA”), 43 U.S.C. §§ 1701-1785, and the Administrative Procedure
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Act (“APA”), 5 U.S.C. § 706 et seq.. Plaintiffs allege that: (1) the 2012 BiOp is deficient because it
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does not include an Incidental Take Statement for the PMV; (2) FWS has unreasonably delayed issuance
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of a recovery plan for the PMV under Section 4(f) of the Endangered Species Act.; (3) the 2013 EIS
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violates the National Environmental Policy Act (“NEPA”) by failing to take a hard look at impacts on
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United States District Court
For the Northern District of California
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wilderness areas; and (4) BLM violated NEPA, FLPMA and the Clean Air Act by failing to properly
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evaluate the alleged impacts of the 2013 RAMP on air quality.3
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Plaintiffs generally allege that the PMV is particularly threatened by OHV recreational use in
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the Dunes, and that the 2013 management plan for the Dunes does not contain sufficient safeguards to
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ensure against jeopardizing the continued existence of these species. Defendants are the Bureau of Land
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Management (“BLM”), which manages the ISDRA, and the U.S. Fish and Wildlife Service (“FWS” or
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“Service”), which consults with the BLM and is required to evaluate BLM actions that affect the
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Peirson’s milk-vetch.
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recreationists.
Defendant-intervenors are a number of organizations representing OHV
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LEGAL STANDARD
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“Neither the ESA nor NEPA supply a separate standard for our review, so we review claims
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under these Acts under the standards of the APA.” San Luis & Delta-Mendota Water Authority v.
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Jewell, ___ F.3d ___, 2014 WL 975130, at *9 (9th Cir. Mar. 13, 2014). Pursuant to Section 706 of the
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The federal defendants and the intervenor defendants note that plaintiffs do not allege that the
agencies have failed to correct any of the deficiencies identified by the Court in its 2006 summary
judgment order, and they assert that all of the new claims are raised for the first time at this stage of the
litigation and could have been raised before. While it is unclear whether the NEPA claims (such as the
air quality claim) could have been raised before, it is true that the 2005 BiOp did not contain an ITS for
the PMV, and plaintiffs did not previously contend that FWS was required to prepare an ITS for the
PMV.
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Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., the court “shall” set aside any agency
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decision that the Court finds is “arbitrary, capricious, an abuse of discretion, or otherwise not in
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accordance with law.” 5 U.S.C. § 706(2)(A). The APA precludes a trial court reviewing an agency
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action from considering any evidence outside of the administrative record available to the agency at the
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time of the challenged decision. See 5 U.S.C. § 706(2)(E); Florida Power & Light Co. v. Lorion, 470
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U.S. 729, 743-44 (1985); Havasupai Tribe v. Robertson, 943 F.2d 32, 34 (9th Cir. 1991). “Because this
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is a record review case, we may direct that summary judgment be granted to either party based upon our
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de novo review of the administrative record.” Oregon Natural Desert Ass’n v. Bureau of Land
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Management, 625 F.3d 1092, 1108 (9th Cir. 2010); Riddell v. Unum Life Ins. Co. of Am., 457 F.3d 861,
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United States District Court
For the Northern District of California
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864 (8th Cir. 2006) (explaining that judgment on the administrative record “is a form of summary
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judgment”).
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The Court must determine whether the agency decision “was based on a consideration of the
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relevant factors and whether there has been a clear error of judgment.” Citizens to Preserve Overton
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Park v. Volpe, 401 U.S. 402, 416 (1971), abrogated on other grounds, Califano v. Sanders, 430 U.S.
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99 (1977). The Supreme Court has explained that an agency action is arbitrary and capricious if “the
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agency has relied on factors which Congress has not intended it to consider, entirely failed to consider
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an important aspect of the problem, offered an explanation for its decision that runs counter to the
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evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or
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the product of agency expertise.” Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463
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U.S. 29, 43 (1983). “Although our inquiry must be thorough, the standard of review is highly
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deferential; the agency’s decision is ‘entitled to a presumption of regularity,’ and we may not substitute
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our judgment for that of the agency.” San Luis & Delta-Mendota Water Authority, ___ F.3d ___, 2014
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WL 975130, at *9 (internal citation omitted). “Where the agency has relied on ‘relevant evidence [such
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that] a reasonable mind might accept as adequate to support a conclusion,’ its decision is supported by
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‘substantial evidence.’” Id. (internal citation omitted). “Even “[i]f the evidence is susceptible of more
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than one rational interpretation, [the court] must uphold [the agency’s] findings.” Id. (internal citation
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omitted).
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DISCUSSION
I.
Endangered Species Act - Incidental Take Statement
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For any federal action that may affect a threatened or endangered species (or its habitat),
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Congress has required by statute that the agency contemplating the action (here the BLM) must consult
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pursuant to Section 7(a) of the ESA with the consulting agency (here the FWS) to “insure” that the
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federal action “is not likely to [1] jeopardize the continued existence of any endangered species or
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threatened species or [2] result in the destruction or adverse modification” of the designated critical
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habitat of such species. 16 U.S.C. § 1536(2). After the agencies engage in the consultation process, the
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consulting agency issues a BiOp.
United States District Court
For the Northern District of California
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Under Section 7(b)(4) of the ESA, “[t]he FWS must issue an Incidental Take Statement if the
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BiOp concludes no jeopardy to listed species or adverse modification of critical habitat will result from
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the proposed action, but the action is likely to result in incidental takings.” Oregon Natural Resources
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Council v. Allen, 476 F.3d 1031, 1036 (9th Cir. 2007) (citing 16 U.S.C. § 1536(b)(4); 50 C.F.R.
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§ 402.14(i); and Ariz. Cattle Growers’ Ass’n, 273 F.3d 1229, 1242 (9th Cir. 2001)). “Both the BiOp
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and the Incidental Take Statement must be formulated by the FWS during the formal consultation
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process; indeed, the regulations specifically require the FWS to provide the Incidental Take Statement
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‘with the biological opinion.’” Id. (quoting 50 C.F.R. § 402.14(g), (i)(1)). Incidental take in compliance
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with the terms and conditions in the ITS “shall not be considered to be a prohibited taking of the species
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concerned.” 16 U.S.C. § 1536(o)(2). Section 7 consultation must be reinitiated when the amount or
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extent of taking specified in the ITS is exceeded, as well as when new information reveals impacts of
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the action on listed species that were not previously considered or when the agency action is changed
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in a way that causes impacts on listed species that were not previously considered. See 50 C.F.R.
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§ 402.16(a)-(c).
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Section 7(b)(4) provides,
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(b) Opinion of Secretary
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(4) If after consultation under subsection (a)(2)4 of this section, the Secretary concludes
that–
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(A) the agency action will not violate such subsection, or offers reasonable and
prudent alternatives which the Secretary believes would not violate such subsection;
(B) the taking of an endangered species or a threatened species incidental to the
agency action will not violate such subsection; and
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(C) if an endangered species or threatened species of a marine mammal is
involved, the taking is authorized pursuant to section 1371(a)(5) of this title;
the Secretary shall provide the Federal agency and the applicant concerned, if any,
with a written statement that–
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(i) specifies the impact of such incidental taking on the species,
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United States District Court
For the Northern District of California
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(ii) specifies those reasonable and prudent measures that the Secretary
considers necessary or appropriate to minimize such impact,
(iii) in the case of marine mammals, specifies those measures that are
necessary to comply with section 1371(a)(5) of this title with regard to such taking,
and
(iv) sets forth the terms and conditions (including, but not limited to,
reporting requirements) that must be complied with by the Federal agency or applicant
(if any), or both, to implement the measures specified under clauses (ii) and (iii).
16 U.S.C. § 1536(b)(4).
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The 2012 BiOp does not contain an ITS for the PMV. Plaintiffs contend that FWS was required
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to prepare an ITS for the PMV, while defendants contend that an ITS is only required for listed fish and
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wildlife, not for listed plants. The parties’ dispute involves the interplay of Sections 7 and 9 of the ESA.
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Section 9 of the ESA and its implementing regulations prohibit the “take” of “any endangered species
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of fish or wildlife,” and provides separate protections for endangered plants. See 16 U.S.C. §
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1538(a)(1); 50 C.F.R. § 17.31. Section 9, titled “Prohibited Acts,” states,
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§ 1538. Prohibited acts
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Section 7(a)(2) provides, “Each Federal agency shall, in consultation with and with the
assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency
(hereinafter in this section referred to as an “agency action”) is not likely to jeopardize the continued
existence of any endangered species or threatened species or result in the destruction or adverse
modification of habitat of such species which is determined by the Secretary, after consultation as
appropriate with affected States, to be critical, unless such agency has been granted an exemption for
such action by the Committee pursuant to subsection (h) of this section. In fulfilling the requirements
of this paragraph each agency shall use the best scientific and commercial data available.” 16 U.S.C.
§ 1536(a)(2).
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(a) Generally
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(1) Except as provided in sections 1535(g)(2) and 1539 of this title, with respect to any
endangered species of fish or wildlife listed pursuant to section 1533 of this title it is
unlawful for any person subject to the jurisdiction of the United States to--
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(A) import any such species into, or export any such species from the United
States;
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(B) take any such species within the United States or the territorial sea of the
United States;
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(C) take any such species upon the high seas;
(D) possess, sell, deliver, carry, transport, or ship, by any means whatsoever,
any such species taken in violation of subparagraphs (B) and (C);
United States District Court
For the Northern District of California
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(E) deliver, receive, carry, transport, or ship in interstate or foreign commerce,
by any means whatsoever and in the course of a commercial activity, any such species;
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(F) sell or offer for sale in interstate or foreign commerce any such species; or
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(G) violate any regulation pertaining to such species or to any threatened
species of fish or wildlife listed pursuant to section 1533 of this title and promulgated
by the Secretary pursuant to authority provided by this chapter.
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(2) Except as provided in sections 1535(g)(2) and 1539 of this title, with respect to any
endangered species of plants listed pursuant to section 1533 of this title, it is unlawful
for any person subject to the jurisdiction of the United States to--
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(A) import any such species into, or export any such species from, the United
States;
(B) remove and reduce to possession any such species from areas under Federal
jurisdiction; maliciously damage or destroy any such species on any such area; or
remove, cut, dig up, or damage or destroy any such species on any other area in
knowing violation of any law or regulation of any State or in the course of any
violation of a State criminal trespass law;
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(C) deliver, receive, carry, transport, or ship in interstate or foreign commerce,
by any means whatsoever and in the course of a commercial activity, any such species;
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(D) sell or offer for sale in interstate or foreign commerce any such species; or
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(E) violate any regulation pertaining to such species or to any threatened
species of plants listed pursuant to section 1533 of this title and promulgated by the
Secretary pursuant to authority provided by this chapter.
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16 U.S.C. § 1538(a)(1)-(2) (emphasis added). Thus, Section 9(a)(1) prohibits the “take” of endangered
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fish or wildlife, while Section 9(a)(2) does not use the term “take,” but contains a range of other
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protections for endangered plants. The ESA defines “take” as “to harass, harm, pursue, hunt, shoot,
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wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Id. § 1532(19).
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Pursuant to Section 4(d) of the ESA, FWS may by regulation extend the Section 9(a)(1) “take”
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prohibition to threatened fish or wildlife, and may extend the protections of Section 9(a)(2) to threatened
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plants. Id. § 1533(d).5
Plaintiffs argue that an ITS is required for plants because Section 7(b)(4) ties the ITS
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requirement to the conclusion of a consultation under Section 7(a)(2), and Section 7(a)(2) provides that
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consultation is required for federal actions affecting “any endangered species or threatened species,”
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regardless of whether the species is plant or wildlife. 16 U.S.C. § 1536(a)(2). Plaintiffs emphasize the
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fact that Section 7(b)(4) – the provision requiring the preparation of an ITS – also refers to “any
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endangered species or threatened species.” Plaintiffs argue that “if an action triggers consultation on
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United States District Court
For the Northern District of California
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a listed plant under section 7(a)(2), nothing in the ESA’s language suggests that the resulting BiOp need
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not contain an ITS.” Docket No. 236 at 7-8. Plaintiffs argue that it is irrelevant that Section 9’s
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prohibition of “take” only applies to wildlife because the plain language of Section 7 requires an ITS
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for “any endangered species or threatened species.”
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Plaintiffs also rely on Center for Biological Diversity v. Salazar, 695 F.3d 893 (9th Cir. 2012).
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In that case, the FWS prepared an ITS for the threatened polar bear, and the plaintiffs challenged the ITS
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as inadequate because it did not specify a numerical limit for permissible take. The FWS argued, inter
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alia, that it was not even required to prepare an ITS because when the FWS listed the polar bear as
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threatened, the FWS also issued a Section 4(d) rule that applied most of the Section 9 prohibitions to
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the polar bear, but not the prohibition on take. The Section 4(d) rule stated that “[n]othing in this special
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rule affects the issuance or contents of the biological opinions for polar bears or the issuance of an
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incidental take statement, although incidental take resulting from activities that occur outside of the
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current range of the polar bear is not subject to the taking prohibition of the ESA.” Id. at 911 (quoting
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Section 4(d) of the ESA, titled “Protective Regulations” provides, “Whenever any species is
listed as a threatened species pursuant to subsection (c) of this section, the Secretary shall issue such
regulations as he deems necessary and advisable to provide for the conservation of such species. The
Secretary may by regulation prohibit with respect to any threatened species any act prohibited under
section 1538(a)(1) of this title, in the case of fish or wildlife, or section 1538(a)(2) of this title, in the
case of plants, with respect to endangered species; except that with respect to the taking of resident
species of fish or wildlife, such regulations shall apply in any State which has entered into a cooperative
agreement pursuant to section 1535(c) of this title only to the extent that such regulations have also been
adopted by such State.” 16 U.S.C. § 1533(d).
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73 Fed. Reg. 76,249, 76,252 (Dec. 16, 2008)). The Ninth Circuit rejected the FWS’s argument that an
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ITS was not required, holding that “exemption from Section 9 take liability is irrelevant to the Service’s
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Section 7 obligations to prepare a BiOp and ITS. . . . The ESA requires an ITS for ‘the taking of an
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endangered species or a threatened species incidental to the agency action,’ 16 U.S.C. § 1536(b)(4)(B)
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(emphasis added), not the prohibited taking.” Id. at 910. The Ninth Circuit noted that “[t]he
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Association’s argument fails to recognize that exemption from Section 9 take liability is not the sole
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purpose of the ITS. If the amount or extent of taking specified in the ITS is exceeded, reinitiation of
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formal consultation is required.” Id. at 911 (internal quotations and citation omitted). Plaintiffs rely on
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this language to argue that FWS has an obligation to prepare an ITS for the PMV under Section 7
United States District Court
For the Northern District of California
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regardless of that fact that Section 9 take liability does not apply to listed plants.
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Defendants assert – and plaintiffs do not deny – that no court has ever held that Section 7
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requires an ITS for listed plants, and that the one court that has addressed this question held that an ITS
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is not required for listed plants. See California Native Plant Society v. Norton, No. 01CV1742 DMS
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(JMA), 2004 WL 1118537, at *8 (S.D. Cal. Feb. 10, 2004).6 Defendants argue that an ITS is not
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required under Section 7 of the ESA “because the Incidental Take Statement’s primary function is to
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authorize the taking of animals incidental to the execution of a particular proposed action.” Oregon
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Natural Resources Council, 476 F.3d at 1036. Defendants argue that because Section 9 only prohibits
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the take of listed fish or wildlife, there is no requirement under Section 7 to prepare an ITS for a listed
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plant. Defendants contend that plaintiffs’ argument is also foreclosed by the Ninth Circuit’s holding that
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“the definition of ‘taking’ in Sections 7 and 9 of the ESA are identical in meaning and application.”
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Arizona Cattle Growers’ Ass’n v. U.S. Fish and Wildlife, 273 F.3d 1229, 1237 (9th Cir. 2001). In that
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case, the Ninth Circuit held,
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The structure of the ESA and the legislative history clearly show Congress’s
intent to enact one standard for ‘taking’ within both Section 7(b)(4), governing the
creation of Incidental Take Statements, and Section 9, imposing civil and criminal
penalties for violation of the ESA. In 1982, Congress amended the ESA to include
Section 7(b)(4) to resolve the conflict between Sections 7 and 9. See H.R.Rep. No.
97–567, at 15 (1982). As noted in the legislative reports, the
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Plaintiffs argue that California Native Plant Society is unpersuasive because it predated the
Ninth Circuit’s decision in Salazar. The Court discusses Salazar infra.
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purpose of Section 7(b)(4) and the amendment to Section 7(o) is to
resolve the situation in which a Federal agency or a permit or license
applicant has been advised that the proposed action will not violate
Section 7(a)(2) of the Act but the proposed action will result in the
taking of some species incidental to that action—a clear violation of
Section 9 of the Act which prohibits any taking of a species.
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H.R.Rep. No. 97–567, at 26 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2826.
Absent an actual or prospective taking under Section 9, there is no “situation” that
requires a Section 7 safe harbor provision.
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Id. at 1239-40.
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Defendants also rely on Northern California River Watch v. Wilcox, 547 F. Supp. 2d 1071 (N.D.
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United States District Court
For the Northern District of California
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Cal. 2008). In that case, Judge Breyer noted that “[S]ection 10 – allowing a private party to apply for
an incidental take permit – applies only to fish and wildlife – there is no section 10 incidental take
permit provision for endangered plants.” Id. at 1075.7 Defendants argue that Section 7’s ITS provisions
cannot be interpreted differently than those of Section 10 because the take provisions of Sections 7 and
10 were enacted at the same time to address the same issue: the situation where an action is nonjeopardizing but “remain[s] subject to the Section 9 prohibition against taking individual specimens of
endangered or threatened species of fish or wildlife.” H.R. Conf. Rep. 97-835 (1982), reprinted in 1982
U.S.C.C.A.N. 2860, 2868. Defendants assert that the ESA does not prohibit “incidental” harm to listed
plants that could require incidental take authorization under Sections 7 or 10, and instead that the limited
prohibitions for listed plants in Section 9(a)(2) require malicious or deliberate conduct.
Defendants also note that the FWS has always defined “incidental take” as “take of listed fish
or wildlife species that results from, but is not the purpose of, carrying out an otherwise lawful activity.”
Endangered Species Consultation Handbook: Procedures for Conducting Consultation and Conference
Activities Under Section 7 of the Endangered Species Act, at xv (1998) (“ESA Handbook”) (emphasis
added), available at http://www.fws.gov/endangered/esa-library/. Defendants contend that the agency’s
interpretation is rational, consistent with the statute, and entitled to deference under Chevron U.S.A., Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984).
The Chevron inquiry requires a two-step analysis. At step one, the Court asks “whether
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In that case, the question was whether “areas under Federal jurisdiction” in ESA Section
9(a)(2)(B) encompassed wetlands adjacent to navigable waterways and were therefore subject to the
requirements of the Clean Water Act.
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Congress has directly spoken to the precise question at issue.” Id. “If the intent of Congress is clear,
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that is the end of the matter; [and we] . . . must give effect to the unambiguously expressed intent of
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Congress.” Id. at 842-43. “[I]nquiry into congressional intent encompasses both statutory language and
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legislative history.” Edwards v. McMahon, 834 F.2d 796, 799 (9th Cir. 1987) (citation omitted). “If,
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however, the statute is silent or ambiguous, prior to step two, we must decide how much weight to
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accord an agency’s interpretation.” McMaster v. U.S., 731 F.3d 881, 889 (9th Cir. 2013) (internal
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quotation marks and citations omitted). “If we determine that Chevron deference applies, then we move
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to step two, where we will defer to the agency’s interpretation if it is ‘based on a permissible
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construction of the statute.’” Id. (quoting Chevron, 467 U.S. at 843).
United States District Court
For the Northern District of California
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The Court concludes under the first step of the Chevron inquiry that the statutory language and
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the legislative history demonstrate that the Section 7 requirement to prepare an ITS does not apply to
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listed plants. Section 9(a)(1) prohibits the take of endangered “fish and wildlife,” and not of plants,
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while Section 9(a)(2) provides a variety of protections to endangered plants and does not protect against
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incidental take. As defendants note, the Section 9(a)(2) prohibitions for plants require deliberate or
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malicious conduct, whereas “incidental” take can occur without such intent. An ITS “must specify
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whether any ‘incidental taking’ of protected species will occur, specifically ‘any taking otherwise
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prohibited, if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful
18
activity.’” Ariz. Cattle Growers’ Ass’n, 273 F.3d at 1239 (quoting 16 U.S.C. § 1536(b)(4) and 50
19
C.F.R. § 17.3) (emphasis added).8 The only taking “otherwise prohibited” is take of listed “fish or
20
wildlife.” 16 U.S.C. § 1538(a)(1). Thus, while an ITS serves as a regulatory trigger for reinitiating
21
Section 7 consultation, 50 C.F.R. § 402.16, Ariz. Cattle Growers, 273 F.3d at 1249, an ITS is only
22
required in the first instance when the proposed action is likely to take listed fish or wildlife. “A plain
23
reading of the statute reveals that the Act prohibits the ‘take’ of fish or wildlife, but not the ‘take’ of
24
8
25
26
27
28
This Court recognizes that there is arguably tension between Salazar and Arizona Cattle
Growers, and that plaintiffs’ argument finds support in some of the broad language in Salazar.
However, in Salazar the Ninth Circuit was not addressing the question of whether an ITS is required
for listed plants, but rather whether FWS was required to prepare an ITS for the polar bear where a
Section 4(d) regulation provided that “[n]othing in this special rule affects the issuance or contents of
the biological opinions for polar bears or the issuance of an [ITS].” Salazar, 695 F.3d at 911. The Court
finds that Salazar is distinguishable on these grounds and that Salazar does not compel the result
plaintiffs seek.
11
1
plant species. . . . In the absence of a prohibition on the ‘take’ of plant species, . . . such take cannot
2
occur, and no incidental take statement is needed.” California Native Plant Society, 2004 WL 1118537,
3
at *8 (internal quotation marks and citations omitted).
4
Plaintiffs emphasize the fact that the statutory definition of “take” does not distinguish between
5
wildlife and plants. See 16 U.S.C. § 1532(19). However, as defendants note, the “take” definition was
6
part of the ESA when it was originally enacted in 1973, prior to the 1982 amendments adding the
7
incidental take provisions of Sections 7 and 10. See P.L. 93-205 § 3(14), 87 Stat. 884 (Dec. 28, 1973).
8
Thus, “take” was defined in the original enactment of the ESA to explain the meaning of “take” in
9
Section 9(a), which only applies to fish and wildlife.
United States District Court
For the Northern District of California
10
Interpreting Section 7 as requiring an ITS for fish and wildlife but not plants is also consistent
11
with the take provision in Section 10, which only applies to listed animals. It is a “fundamental canon
12
of statutory construction that the words of a statute must be read in their context and with a view to their
13
place in the overall statutory scheme.” Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989).
14
“A court must therefore interpret the statute as a symmetrical and coherent regulatory scheme and fit,
15
if possible, all parts into an harmonious whole.” Food & Drug Admin. v. Brown & Williamson Tobacco
16
Corp., 529 U.S. 120, 133 (2000) (citations omitted).
17
In addition, the legislative history of the 1982 amendments makes clear that Section 7’s
18
incidental take provisions do not apply to listed plants because plants are not subject to take under
19
Section 9:
20
21
22
23
24
25
26
27
28
Under the existing provisions of the Act, Federal agencies that receive
favorable biological opinions which conclude that the agency action would not violate
section 7(a)(2) remain subject to the section 9 prohibition against take of individual
specimens of endangered species of fish or wildlife.…
[The bill] would address this problem by amending section 7(b) of the Act to
require the Secretary, in cases where he has concluded that the agency action would
not violate section 7(a)(2), to provide a written statement specifying (1) the extent of
take incidental to the agency action that would not violate section 7(a)(2); and (2) those
reasonable and prudent measures that must be followed to minimize such takings. If
a Federal or private action that is in compliance with the measures specified to
minimize takings results in the taking of specimens of a species that was the subject
of the biological opinion, such action will not be considered a “taking” for purposes
of section 9 of the Act. Actions that are not in compliance with the specified measures,
however, remain subject to the prohibition against takings that is contained in section
9.
12
1
S. Rep. No. 97-418 (1982) (Docket No. 232-1 at 20-21).
2
3
Accordingly, the Court concludes that FWS was not required to prepare an ITS for the PMV,
and GRANTS summary judgment in favor of defendants on this issue.
4
5
II.
Endangered Species Act – Recovery Plan
Plaintiffs bring a claim under the Endangered Species Act challenging FWS’s failure to prepare
7
a final recovery plan for the PMV. Section 4 of the ESA provides that “[t]he Secretary shall develop
8
and implement plans (hereinafter in this subsection referred to as ‘recovery plans’) for the conservation
9
and survival of endangered species and threatened species listed pursuant to this section, unless he finds
10
United States District Court
For the Northern District of California
6
that such a plan will not promote the conservation of the species.” 16 U.S.C. § 1533(f). “The recovery
11
plan, once prepared, provides [a] ‘basic road map to recovery, i.e., the process that stops or reverses the
12
decline of a species and neutralizes threats to its existence.’” Ctr. for Biological Diversity v.
13
Kempthorne, 607 F. Supp. 2d 1078, 1088 (D. Ariz. 2009) (quoting Defenders of Wildlife v. Babbitt, 130
14
F. Supp. 2d 121, 131 (D.D.C. 2001)). “A recovery plan must contain three essential elements: (1) a
15
description of site specific management actions that may be necessary to recover the species; (2)
16
objective and measurable criteria which, when met, would result in a determination that the species be
17
removed from the list; and (3) estimates of the time and cost required to carry out those measures needed
18
to recover the species and to achieve intermediate steps towards that goal.” Ctr. for Biological
19
Diversity, 607 F. Supp. 2d at 1087-88 (citing 16 U.S.C. § 1533(f)(1)(B)(i)-(iii)).
20
imposes specific deadlines for certain actions, see, e.g., 16 U.S.C. § 1533(b)(3), (5)-(6), it prescribes no
21
deadline for completing a recovery plan, id. § 1533(f). The FWS listed the Peirson’s milk-vetch in
22
1998, but has yet to issue a recovery plan. 63 Fed. Reg. 53,596 (Oct. 6, 1998). Plaintiffs contend that
23
the agency’s delay in issuing a recovery plan is unreasonable and requires judicial intervention.
While the ESA
24
As an initial matter, the federal defendants and defendant-intervenors argue that FWS does not
25
have a duty to issue a recovery plan and thus that the Court cannot grant the relief that plaintiffs seek.
26
Defendants argue that FWS does not have a duty to issue a recovery plan because Section 1533(f) states
27
that the Secretary “shall develop and implement [recovery plans] . . . , unless he finds that such a plan
28
will not promote the conservation of the species.” 16 U.S.C. § 1533(f) (emphasis added). Defendants
13
1
argue that this language vests FWS with discretion to either prepare a recovery plan or determine that
2
a recovery plan will not promote conservation of the species, and thus that this Court cannot require
3
FWS to prepare a recovery plan.9
As support, defendants cite cases interpreting the APA and holding that courts may not review
5
an agency’s failure to make a completely discretionary decision. See S. Utah Wilderness Alliance v.
6
Norton, 542 U.S. 55, 64 (2004) (claim under APA “can proceed only where a plaintiff asserts that an
7
agency failed to take a discrete agency action that it is required to take.”); Drakes Bay Oyster Co. v.
8
Salazar, 921 F. Supp. 2d 972, 988 (N.D. Cal. 2013) (holding there was no judicial review over agency’s
9
discretionary decision to deny permit), aff’d ___ F.3d ___, 2014 WL 114699 (9th Cir. Jan. 14, 2014).
10
United States District Court
For the Northern District of California
4
However, plaintiffs bring their claim directly under the ESA, not the APA. The ESA authorizes citizen
11
suits to challenge “a failure of [FWS] to perform any act or duty under section 4 [of the ESA] which is
12
not discretionary.” 16 U.S.C. § 1540(g)(1)(C); Wash. Toxics Coalition v. EPA, 413 F.3d 1024, 1034
13
(9th Cir. 2005) (“suits to compel agencies to comply with the substantive provisions of the ESA arise
14
under the ESA citizen suit provision, and not the APA”).
15
Defendants do not cite any cases interpreting Section 1533(f) as conferring discretionary
16
authority on the FWS to issue a recovery plan in the absence of a determination that a recovery plan will
17
not promote the conservation of the species.10 In Bennett v. Spear, 520 U.S. 154 (1997), the Supreme
18
19
20
9
As discussed infra, FWS has prepared a draft recovery plan and anticipates that it can complete
the recovery plan by July 31, 2019.
10
21
22
23
24
25
26
27
28
Intervenor defendants cite National Wildlife Federation v. National Park Service, 669 F.
Supp. 384 (D. Wyo. 1987), and Conservation Northwest v. Kempthorne, No. C04-1331-JCC, 2007 WL
1847143 (W.D. Wash. 2007). In both cases, the FWS had prepared recovery plans for the grizzly bear,
and the plaintiffs brought suit challenging the agency’s delay in implementing those plans. In National
Wildlife Foundation, the court held that “the Secretary is required to develop a recovery plan only
insofar as he reasonably believes that it would promote conservation,” and concluded that “[t]his Court
will not attempt to second guess the Secretary’s motives for not following the recovery plan.” National
Wildlife Federation, 669 F. Supp. at 388-89. In Conservation Northwest, the court found that the
“discretionary nature of the time line of implementation of recovery plans” divested the court of
jurisdiction to review the claim of unreasonable delay. Conservation Northwest, 2007 WL 1847143,
at *4.
The Court finds that these cases are factually distinguishable in that they involve the
implementation of recovery plans, and not the failure to prepare a recovery plan. To the extent that
either case holds more broadly that the Secretary has the discretion not to prepare a recovery plan
without also finding that a recovery plan will not promote the conservation of a species, this Court
disagrees with that interpretation of Section 1533(f).
14
1
Court analyzed a similar provision in the ESA directing that “[t]he Secretary shall designate critical
2
habitat . . . . [and] [t]he Secretary may exclude any area from critical habitat if he determines that the
3
benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat
4
. . . .” 16 U.S.C. § 1533(b)(2). The Court held that “the terms of § 1533(b)(2) are plainly those of
5
obligation rather than discretion.” Bennett, 520 U.S. at 172. The Court further explained,
6
7
8
9
United States District Court
For the Northern District of California
10
11
It is true that this is followed by the statement that, except where extinction of the
species is at issue, “[t]he Secretary may exclude any area from critical habitat if he
determines that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat.” However, the fact that the Secretary’s
ultimate decision is reviewable only for abuse of discretion does not alter the
categorical requirement that, in arriving at his decision, he “tak[e] into consideration
the economic impact, and any other relevant impact,” and use “the best scientific
data available.” It is rudimentary administrative law that discretion as to the
substance of the ultimate decision does not confer discretion to ignore the required
procedures of decisionmaking. Since it is the omission of these required procedures
that petitioners complain of, their § 1533 claim is reviewable under § 1540(g)(1)(C).
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Id. (internal citations omitted) (emphasis in original).
As with the provision at issue in Bennett, Section 1533(f) states that the Secretary “shall”
develop a recovery plan, and the Court finds that the terms of this section are “those of obligation rather
than discretion.” Id. The Court finds that Section 1533(f) requires FWS to either issue a recovery plan
or determine that a recovery plan will not promote the conservation of the species, and does not permit
the FWS the discretion to do neither. See Brower v. Evans, 257 F.3d 1058, 1067 n.10 (9th Cir. 2001)
(“‘Shall’ means shall.”); see also United States v. Monsanto, 491 U.S. 600, 607 (1989) (by using “shall”
“Congress could not have chosen stronger words to express its intent that forfeiture be mandatory.”).
Defendants do not assert that FWS has determined that a recovery plan will not promote conservation
of the PMV, and to the contrary, the evidence in the record shows that FWS has not made such a
determination. Thus, the Court agrees with plaintiffs that, absent an express determination that a
recovery plan will not promote conservation, FWS is required to issue a recovery plan for the PMV.
Because the ESA “contains no internal standard of review,” the Ninth Circuit has held that the
standards provided under Section 706 of the APA govern in ESA cases. W. Watersheds Project v.
Kraayenbrink, 632 F.3d 472, 496 (9th Cir. 2011). Section 706 of the APA requires that a court “shall
. . . compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1); see also
15
1
id. § 555(b) (agency must “conclude a matter presented to it . . . within a reasonable time”). Pursuant
2
to Section 706, “even though agency action may be subject to no explicit time limit, a court may compel
3
an agency to act within a reasonable time.” Houseton v. Nimmo, 670 F.2d 1375, 1377 (9th Cir. 1982);
4
Forest Guardians v. Babbitt, 174 F.3d 1178, 1186 (10th Cir. 1998) (in ESA case, finding “if an agency
5
has no concrete [statutory] deadline . . . and instead is governed only by general timing provisions – such
6
as the APA’s general admonition [to] conclude matters . . . ‘within a reasonable time,’” a court may
7
compel delayed action).
To determine whether delay is “unreasonable” under APA Section 706, courts apply the factors
9
set forth by the Court of Appeals for the District of Columbia Circuit in Telecommunications Research
10
United States District Court
For the Northern District of California
8
& Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (“T.R.A.C.”). See Independence Mining Co. v.
11
Babbitt, 105 F.3d 502, 507 (9th Cir. 1997) (adopting T.R.A.C. factors); Biodiversity Legal Found. v.
12
Badgley, 309 F.3d 1166, 1177 n.11 (9th Cir. 2002) (noting T.R.A.C. factors apply “in the absence of
13
a firm deadline”). Under these factors, the Court considers the following guidelines to determine
14
whether an agency’s delay is unreasonable:
15
1) a “rule of reason” governs the time agencies take to make decisions; 2) delays where
human health and welfare are at stake are less tolerable than delays in the economic
sphere; 3) consideration should be given to the effect of ordering agency action on
agency activities of a competing or higher priority; 4) the court should consider the
nature of the interests prejudiced by delay; and 5) the agency need not act improperly
to hold that agency action has been unreasonably delayed.
16
17
18
19
20
Towns of Wellesley, Concord, and Norwood, Mass. v. FERC, 829 F.2d 275, 277 (1st Cir. 1987) (citing
T.R.A.C., 750 F.2d at 80).
Plaintiffs contend that FWS’s delay – which they measure from the date that the PMV was listed
21
22
23
24
25
26
27
28
– has been unreasonable, and they seek an order requiring FWS to issue a recovery plan within two
years. Plaintiffs cite a number of cases in which courts found that a delay of several years was
unreasonable and warranted court intervention. See, e.g., Defenders of Wildlife v. Browner, 909 F.
Supp. 1342 (D. Ariz. 1995); Hells Canyon Preserv. Council v. Richmond, 841 F. Supp. 1039 (D. Or.
1995).
FWS argues that it has not unreasonably delayed in preparing a recovery plan for the PMV, and
that no judicial intervention is required. FWS also asserts that the cases cited by plaintiffs are
16
1
inapplicable because here FWS has shown that the additional time it requires to prepare a recovery plan
2
is reasonable in light of the agency’s increasingly limited resources and competing priorities. In the
3
alternative, FWS asserts that if the Court finds that judicial intervention is necessary, the Court should
4
adopt the July 31, 2019 date identified by FWS as the date by which a PMV recovery plan could be
5
completed.
FWS has submitted the Declaration of Ren Lohoefener, Regional Director for FWS’s Pacific
7
Southwest Region (Region 8).11 Docket No. 223. Mr. Lohoefener states that Region 8 has the lead
8
responsibility for more than 290 listed species, and that funding for recovery plans and other statutory
9
obligations related to species recovery is limited. Id. ¶¶ 2-5. Mr. Lohoefener states that because funding
10
United States District Court
For the Northern District of California
6
is limited, Region 8 must prioritize recovery actions. Id. ¶¶ 4-5. Using a ranking system finalized in
11
1983, FWS has given the PMV a recovery priority number of 9 on a scale of 1-18 (with one being the
12
highest priority and 18 the lowest), “indicating a moderate degree of threat and high recovery potential.”
13
Id. ¶¶ 6-7. Mr. Lohoefener states that Region 8 has completed recovery plans for 202 listed species for
14
which it is responsible and drafted plans for an additional 17 species. Id. ¶ 3. Region 8’s Carlsbad Fish
15
and Wildlife Field Office (“CFWO”), which has responsibility for the PMV, issued a contract in 2003
16
for the preparation of a PMV recovery plan, and received a draft plan in 2007. Id. ¶ 8. Mr. Lohoefener
17
states that “Region 8’s limited staff has been unable to revise or finalize the draft due to higher priority
18
recovery work.” Id.
19
Mr. Lohoefener provides as an example of higher priority recovery work a settlement that FWS
20
entered into in 2005 in Cal. State Grange v. Norton, No. 2:05-cv-00560 (E.D. Cal. filed March 22,
21
2005). That settlement required FWS to complete statutorily-required five-year status reviews on 194
22
11
23
24
25
26
27
28
Plaintiffs did not object to the submission of Mr. Lohoefener’s declaration, and stated in their
opposition papers that they reserved the right to seek discovery or further testimony from Mr.
Lohoefener prior to the summary judgment hearing. See Docket No. 236 at 3:20-23. Plaintiffs did not
supplement the record with regard to Mr. Lohoefener’s declaration. Although judicial review of an
agency decision generally focuses on the administrative record in existence at the time of the decision,
“[r]eview may, however, be expanded beyond the record . . . (1) if necessary to determine whether the
agency has considered all relevant factors and has explained its decision, (2) when the agency has relied
on documents not in the record, or (3) when supplementing the record is necessary to explain technical
terms or complex subject matter.” Southwest Center for Biological Diversity v. U.S. Forest Service, 100
F.3d 1443, 1450 (9th Cir. 1996) (internal quotation marks and citations omitted). The Court finds that
Mr. Lohoefener’s declaration is necessary to determine whether the agency has considered all relevant
factors and explained its decision not to prepare a recovery plan thus far.
17
1
listed species, with Region 8 serving as the lead for all but two. Id. ¶ 9. Mr. Lohoefener states that
2
“[d]uring the eight-year period covered by the agreement, much of Region 8’s recovery efforts and
3
funding were devoted to completing these status reviews, including one for the PMV (completed
4
September 30, 2008).” Id. In September 2013, FWS completed the last status reviews required under
5
the settlement agreement. Id.
Mr. Lohoefener states that as a result of the 2005 settlement and other priorities, Region 8 has
7
only recently been able to increase its efforts on developing recovery plans. Id. ¶ 14. In May 2013,
8
Region 8 revised its Recovery Plan Work Activity Guidance (“WAG”), identifying 29 high-priority
9
species for recovery plan development during fiscal years 2013-2017. Id. ¶¶ 14-18 & Exs. A-B. Mr.
10
United States District Court
For the Northern District of California
6
Lohoefener states CFWO did not plan to develop a recovery plan for the PMV during this time period
11
based on CFWO’s determination that “recovery might be more effectively realized through
12
implementation of BLM’s ISDRA RAMP.” Id. ¶ 16. Mr. Lohoefener states,
13
Of the 29 species identified for recovery plan development in the FY13-FY17 WAG,
only three species in the WAG have RPNs of 9 [the same as the PMV]. All other
species in the FY13-FY17 WAG have “higher” RPNs (RPNs between 1 and 8) and
are therefore a higher priority for plan development than Peirson’s milk-vetch. Each
of the three species in the current WAG with recovery priorities equal to that of
Peirson’s milk-vetch have been included in the WAG due to a special circumstance.
Cordylanthus mollis subsp. mollis (Soft bird’s beak) (RPN = 9C) is part of the
ecosystem-based Tidal Marsh Recovery Plan which also includes higher-priority
species. Santa Catalina Island fox (Urocyon littoralis catalinae) (RPN = 9) is part
of the multi-species Island Fox Recovery Plan which also includes higher-priority
species. Recovery plan development for a third species in the WAG with an RPN
of 9C, the California tiger salamander (Ambystoma californiense), is moving forward
only because it is part of a separate court-approved settlement agreement which was
entered into prior to the finalization of the FY13-FY17 WAG.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Id. ¶ 19.
Mr. Lohoefener also states that much of Region 8’s recovery effort and funding have been
devoted to important recovery work for the PMV, including responding to two delisting petitions,
conducting two separate status reviews, conducting two field studies which resulted in a peer-reviewed
publication and a published note, and developing a seed bank sampling protocol with BLM. Id. ¶¶
10-11 (citing FW5927-6016). In addition, in 2009 FWS issued a “Spotlight Species Action Plan” for
the PMV specifying actions to advance species recovery, id. ¶ 12 (citing FW527-32), and in the fall of
2012, CFWO staff worked with BLM to develop a monitoring protocol to assess the stability of PMV
18
1
populations in the ISDRA. Id. (citing ISD40884-89). Field sampling to evaluate the protocol was
2
conducted in February 2013. Id.
3
Mr. Lohoefener also states that, in light of this litigation, FWS anticipates it could “submit to
4
the Federal Register a notice of availability of a final recovery plan by July 31, 2019, subject to
5
workload constraints and available appropriations. The July 31, 2019 date is a reasonable projection
6
based on our current workload that would result in a final recovery plan for Peirson’s milk-vetch without
7
compromising our ability to develop recovery plans for the higher priority species in our current 5-year
8
[Regional Recovery Plan Work Activity Guidance (WAG)].” Id. ¶ 21.
Applying the T.R.A.C. factors, the Court concludes that it is appropriate to adopt the July 31,
10
United States District Court
For the Northern District of California
9
2019 date identified by FWS as the deadline to complete a PMV recovery plan, unless FWS “finds that
11
such a plan will not promote the conservation of the [PMV].” 16 U.S.C. § 1533(f)(1). The Court is very
12
concerned about the FWS’s failure to issue a recovery plan for the PMV. However, the delay does not
13
involve human health and welfare, and in recent years the FWS has devoted resources to recovery work
14
for the PMV, such as responding to two delisting petitions, preparing two status reviews, and preparing
15
the seed bank sampling protocol. The Court also notes that the 2013 RAMP closes to OHV use all PMV
16
critical habitat, which encompasses 85% of the known overall PMV population and areas “containing
17
high-density core populations, a large extent of high-quality habitat, a large seed bank, and therefore,
18
areas important for the recovery of the species.” FW1735-36, FW1760, FW1766; ISD31621-22.12
19
The Court is also mindful that although courts may compel an agency to “act within a reasonable
20
time,” Houseton v. Nimmo, 670 F.2d 1375, 1377 (9th Cir. 1982), courts are “ill-suited to review the
21
order in which an agency conducts its business” and “hesitant to upset an agency’s priorities by ordering
22
it to expedite one specific action.” Sierra Club v. Thomas, 828 F.2d 783, 797 (D.C. Cir. 1987). The
23
Court finds it significant there are 29 species identified for recovery plan development in the FY2013-
24
2017 WAG, and the Court is reluctant to “reorder[] agency priorities. The agency is in a unique—and
25
authoritative—position to view its projects as a whole, estimate the prospects for each, and allocate its
26
resources in the optimal way. Such budget flexibility as Congress has allowed the agency is not for
27
12
28
“FW____” refers to FWS’s administrative record for the 2012 BiOp, and “ISD____” refers
to BLM’s administrative record for the 2013 ROD, RAMP and EIS.
19
1
[courts] to hijack.” In re Barr Labs., 930 F.2d 72, 75 (D.C. Cir. 1991). If the Court ordered the FWS
2
to complete the PMV recovery plan within two years, as plaintiffs request, the PMV would be
3
prioritized over these other species, thus impeding FWS’s duty to prioritize recovery planning for the
4
species most likely to benefit. See 16 U.S.C. § 1533(f)(1).
5
deadline is reasonable because it will not disrupt the FWS’s other recovery work, but will also set a date
6
certain by which the FWS will be required to take action.
The Court finds that the July 31, 2019
7
Accordingly, the Court GRANTS IN PART plaintiffs’ motion for summary judgment on this
8
issue and ORDERS FWS to complete a PMV recovery plan by July 31, 2019, unless FWS “finds that
9
such a plan will not promote the conservation of the [PMV].” 16 U.S.C. § 1533(f)(1).
United States District Court
For the Northern District of California
10
11
III.
National Environmental Policy Act - Wilderness Values
12
The National Environmental Policy Act (“NEPA”) requires federal agencies to analyze the
13
environmental impacts of a proposed action before proceeding with that action. See 42 U.S.C.
14
§ 4332(2)(C).
15
Environmental Quality (“CEQ”), federal agencies must prepare and circulate to the public a
16
comprehensive environmental impact statement (“EIS”) so that the environmental impacts can be
17
considered and disclosed to the public during the decision-making process. See 40 C.F.R. §§ 1501.2,
18
1502.5. In the EIS, the agency must identify direct, indirect, and cumulative impacts of the proposed
19
action, consider alternative actions (including the alternative of taking no action) and their impacts, and
20
identify all irreversible and irretrievable commitments of resources associated with the action. See 42
21
U.S.C. § 4332(2); 40 C.F.R. § 1502.14(d). Plaintiffs contend that BLM violated NEPA by failing
22
adequately to address in the Final EIS (“FEIS”) the impacts of the 2013 RAMP on the wilderness
23
characteristics of a portion of the South Algodones Dunes known as “WCU 1,” which would largely be
24
opened up to OHV use under the 2013 RAMP.
Under NEPA and the regulations promulgated thereunder by the Council on
25
In 1964 Congress passed the Wilderness Act with the purpose “to assure that an increasing
26
population, accompanied by expanding settlement and growing mechanization, does not occupy and
27
modify all areas within the United States and its possessions, leaving no lands designated for
28
preservation and protection in their natural condition.” 16 U.S.C. § 1131(a). The Wilderness Act defines
20
1
“wilderness,” “in contrast with those areas where man and his own works dominate the landscape,” as:
2
an area where the earth and its community of life are untrammeled by man, where
man himself is a visitor who does not remain. An area of wilderness is further
defined to mean in this chapter an area of undeveloped Federal land retaining its
primeval character and influence, without permanent improvements or human
habitation, which is protected and managed so as to preserve its natural conditions
and which (1) generally appears to have been affected primarily by the forces of
nature, with the imprint of man's work substantially unnoticeable; (2) has outstanding
opportunities for solitude or a primitive and unconfined type of recreation; (3) has
at least five thousand acres of land or is of sufficient size as to make practicable its
preservation and use in an unimpaired condition; and (4) may also contain
ecological, geological, or other features of scientific, educational, scenic, or
historical value.
3
4
5
6
7
8
9
United States District Court
For the Northern District of California
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
16 U.S.C. § 1131(c).
The Wilderness Act did not directly address the BLM’s management of its lands. The Federal
Land Planning Management Act “interacts with the Wilderness Act to provide the BLM with broad
authority to manage areas with wilderness characteristics contained in the federally owned land parcels
the Bureau oversees, including by recommending these areas for permanent congressional protection.”
Oregon Natural Desert Ass’n v. Bureau of Land Management, 625 F.3d 1092, 1097 (9th Cir. 2010)
(“ONDA”). “[T]he FLPMA makes clear that wilderness characteristics are among the values which the
BLM can address in its land use plans, and hence, needs to address in the NEPA analysis for a land use
plan governing areas which may have wilderness values.” Id. at 1112.
Pursuant to the FLPMA, BLM established two Wilderness Study Areas (“WSAs”) for the
purpose of identifying and recommending areas for preservation as wilderness: (1) the North Algodones
Dunes; and (2) the South Algodones Dunes. Congress designated the North Algodones Dunes, but not
the South Algodones Dunes, as a wilderness area through the California Desert Protection Act of 1994.
ISD3178.13 Wilderness Characteristic Unit 1 (“WCU 1”) is a subset of the South Algodones Dunes.
WCU 1 is composed of 42,083 acres of BLM administered lands and has been closed to OHVs since
November 2000 as part of the interim closures. In the FEIS, BLM stated that WCU 1 “appears
essentially untrammeled by humans” and “offers numerous opportunities for primitive forms of
26
13
27
28
According to defendants, the South Algodones Dunes were considered not suitable for
wilderness designation, in part, because “motorized vehicle activity has severely reduced much of the
natural vegetative cover” in the north, and human presence is “substantially noticeable” in the south.
ISD39868; see also ISD38209.
21
1
recreation in the form of hiking, backpacking, and nature studies.” ISD3179. BLM identified this area
2
as having wilderness characteristics, and formally designated it as “WCU 1,” or “Wilderness
3
Characteristics Unit 1” for planning purposes. Id. Under the 2013 RAMP, the portion of WCU 1 that
4
overlaps with PMV critical habitat, 5663 acres, would remain closed to OHVs, while the remaining
5
36,420 acres would be opened to OHVs. Plaintiffs contend that the FEIS provides no meaningful
6
analysis of the impacts on the portion of WCU 1 that would be opened to OHVs.
“We review an Environmental Impact Statement under the ‘rule of reason’ to determine whether
8
it contains ‘a reasonably thorough discussion of the significant aspects of the probable environmental
9
consequences.’” City of Carmel-By-The-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1150 (9th Cir.
10
United States District Court
For the Northern District of California
7
1997) (quoting Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir. 1992)). “We
11
make ‘a pragmatic judgment whether the [Environmental Impact Statement’s] form, content and
12
preparation foster both informed decision-making and informed public participation.’” City of Carmel-
13
By-The-Sea, 123 F.3d at 1150-51 (quoting California v. Block, 690 F.2d 753, 761 (9th Cir. 1982)).
14
“Once satisfied that a proposing agency has taken a ‘hard look’ at a decision’s environmental
15
consequences, [our] review is at an end.” Id. at 1151.
16
Plaintiffs assert that the only analysis in the FEIS about wilderness characteristics consists of
17
a “few generic statements on the relative impacts of the different alternatives.” Docket No. 231 at 15:8-
18
9. Plaintiffs identify the following two excerpts as “the entire extent” of BLM’s analysis of projected
19
effects on WCU 1:
20
21
22
23
24
25
26
27
28
Differences in impacts to special designations would potentially vary by alternative.
Alternatives providing more acreage for OHV recreation, camping, construction
activities, as well as renewable energy and geothermal leasing activities would result
in greater adverse impacts (Table 4-14). Alternatives providing more acreage for
resource protection, such as areas closed to OHV recreation, closed or with [no
surface occupancy] for surface disturbing activities related to geothermal, solar, and
wind energy, would result in greater beneficial effects on special designation areas.
ISD3363.
Under Alternatives 2 and 3, 42,083 acres would be closed to OHV recreation in
WCU 1. These alternatives would have the highest acres closed to OHV recreation,
and the most beneficial impacts to the wilderness characteristics and values of WCU
1.….Under Alternative 8, 25,473 acres would be open, 5,663 acres would be closed,
and 10,947 would be limited to OHV recreation in the WCU 1 designation. This
alternative would have the lowest acres of closed OHV recreation and the highest
acres designated as limited OHV recreation use.
22
1
ISD3367. Plaintiffs argue that BLM’s “purported ‘hard look’ boils down to the completely self-evident
2
and uninformative statement that the alternative with the fewest acres of WCU 1 closed to OHVs will
3
‘result in greater adverse impacts.’” Docket No. 231 at 15:23-25.
4
Defendants respond that the FEIS contains a “reasonably thorough discussion” of the wilderness
5
characteristics of WCU 1 and the potential impacts to that area, which is all that NEPA requires. See
6
City of Carmel-By-The-Sea, 123 F.3d at 1150. The Court agrees. In the “Affected Environment”
7
section, the FEIS includes a discussion of “Lands with Wilderness Characteristics.” ISD3177-3179.
8
The FEIS states that BLM evaluated the wilderness characteristics of “current lands and lands acquired
9
outside of, or adjacent to designated wilderness, since passage of the CDPA in 1994.” ISD3178. This
United States District Court
For the Northern District of California
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
included WCU 1. The FEIS describes WCU 1 as follows:
The WCU 1 contains 42,083 acres of public lands. The area’s west boundary follows
the edge of the dune system, whereas the east boundary follows Wash Road adjacent
to the UPRR tracks. The north and south boundaries indicate the limit of
substantially noticeable impacts resulting from OHV use. The WCU 1 is completely
surrounded by public lands and has a 640-acre section of private lands in the middle.
Although WCU 1 may be traversed by a limited number of OHVs in the winter, and
small portions of the landscape include trails which are 20- to 50-foot-wide strips
devoid of vegetation, the area appears essentially untrammeled by humans . . . . The
undulating topography shields recreationists from each other and provides ample
opportunities for solitude. OHV and military aircraft noise periodically disrupt these
perceptions of solitude. The WCU 1 offers numerous opportunities for primitive
forms of recreation in the form of hiking, backpacking and nature studies.
ISD3179.
The FEIS also explains that impacts on wilderness characteristics “are those actions that reduce
or enhance the wilderness characteristics of naturalness and opportunities for solitude or primitive forms
of recreation.” ISD3361. The FEIS states that OHV recreation has the potential to disturb the
“naturalness and solitude” of wilderness: “These characteristics and values could be impacted by the
use of motor vehicles and installation of structures causing surface disturbance and evidence of the
human-caused modifications of the area.” Id. The FEIS identifies measures that would promote and
preserve wilderness characteristics, such as dust control measures, and states that “[r]estoration of
previously disturbed areas could improve wildlife habitat and reduce instances of illegal incursion
27
28
23
1
within the ACECs14 and wilderness.” Id. The FEIS also states that “any closures resulting from special
2
status species management could enhance the protection for the wilderness and ACEC values, and visual
3
resource management “could increase scenic quality values of the wilderness and ACECs.” Id.
4
5
In addition, the FEIS discusses how the different alternatives will affect ACECs and special
designation areas such as WCU 1:
6
9
Differences in impacts to special designations would potentially vary by alternative.
Alternatives providing more acreage for OHV recreation, camping, construction
activities, as well as renewable energy and geothermal leasing activities would result
in greater adverse impacts (Table 4-14). Alternatives providing more acreage for
resource protection, such as areas closed to OHV recreation, closed or with NSO for
surface-disturbing activities related to geothermal, solar, and wind energy, would
result in greater beneficial effects on special designation areas.
10
Id. at ISD3363. With regard to WCU 1, the FEIS includes the following information: (1) under
11
Alternatives 4, 5, 6, and 7, 42,083 acres of WCU 1 would be open to geothermal leasing, but there
12
would be no geothermal leasing in WCU 1 under Alternatives 2, 3, and 8 (the proposed RAMP); and
13
(2) under Alternative 7, 42,083 acres of WCU 1 would be available for solar and wind energy
14
development, but would be closed to such development under Alternatives 1 through 6 and Alternative
15
8. Id. at ISD3367. Plaintiffs assert that it is self-evident and therefore meaningless to conclude that
16
reopening the central dunes to OHV use will diminish wilderness characteristics in WCU 1. However,
17
it is not clear what further analysis plaintiffs contend should have been performed as the preferred
18
alternative, Alternative 8, does not propose to install any structures or visitor amenities in the central
19
dunes of WCU 1, and the only non-wilderness components that the RAMP introduces into WCU 1 are
20
vehicles and their occupants.
7
United States District Court
For the Northern District of California
8
21
The cases cited by plaintiffs are distinguishable. In ONDA, 625 F.3d 1092 (9th Cir. 2010), the
22
BLM prepared an EIS that only evaluated wilderness characteristics in areas designated as wilderness
23
study areas, and the BLM contended that it had no duty to inventory or analyze wilderness
24
characteristics in non-wilderness areas. Id. at 1102, 1115. The Ninth Circuit disagreed, and invalidated
25
the EIS for failing to evaluate wilderness characteristics in non-WSA areas.
26
Klamath-Siskiyou Wildlands Center v. Bureau of Land Management, 387 F.3d 989 (9th Cir. 2004), did
27
28
14
“ACEC” stands for Areas of Critical Environmental Concern.
24
Id. at 1121.
1
not involve an assessment of wilderness characteristics at all. In Klamath-Siskiyou, the Ninth Circuit
2
invalidated environmental assessments where, inter alia, the discussion of cumulative impacts consisted
3
of a table with a list of environmental concerns, such as air quality, and “even though all of the boxes
4
are checked ‘No’ to indicate that the critical elements in question will not be affected, the report actually
5
states that fully half of the elements either would be or could be in fact ‘impacted,’ without giving any
6
details or explanation.” Id. at 995. Here, in contrast, the BLM assessed the wilderness characteristics
7
of WCU 1 and described the RAMP’s effects on those characteristics. See ISD3361-3367.
8
Accordingly, the Court GRANTS summary judgment in favor of defendants on this issue.
9
United States District Court
For the Northern District of California
10
IV.
Air Quality Analysis
11
The federal Clean Air Act (“CAA”) establishes a comprehensive program for controlling and
12
improving the nation’s air quality through shared federal and state responsibility. The CAA authorizes
13
the Environmental Protection Agency (“EPA”) to establish national ambient air quality standards
14
(“NAAQSs”) for pollutants deemed by EPA to be “criteria” pollutants, including volatile organic
15
compounds (“VOCs”) and nitrogen oxides (“NOx”) – both of which are considered precursors to
16
ozone15 – and particulate matter with a diameter greater than 10 microns (“PM-10”). 42 U.S.C. §§ 7407-
17
7410. EPA designates areas which fail to attain an NAAQS standard as “nonattainment areas.” Id.
18
§§ 7407(d)(1). Nonattainment areas are divided into five categories, based upon the severity of the
19
pollution: “Marginal,” “Moderate,” “Serious,” “Severe,” and “Extreme.” Id. § 7511.
20
The Imperial County Air Pollution Control District (“ICAPCD”), which includes the ISDRA,
21
is designated as a serious non-attainment area for PM-10 and a moderate non-attainment area for ozone.
22
ISD3283. The ICAPCD has promulgated regulations for the control of PM-10, which have been
23
approved by EPA. 78 Fed. Reg. 23,677 (Apr. 22, 2013). Pursuant to an ICAPCD rule governing
24
“fugitive dust,” BLM was required to submit a dust control plan for OHV use in the Dunes. ISD63050.
25
The ICAPCD approved the dust control plan in July 2013. ISD63027.
26
Section 110(a) of the Clean Air Act, 42 U.S.C. § 7410(a), sets forth the process by which the
27
15
28
The parties sometimes refer generally to “ozone,” and other times specifically to VOCs and
NOx.
25
states may develop their own regulatory programs, called “State Implementation Plans” (“SIPs”), that
2
satisfy the minimum requirements of the Clean Air Act. See generally 42 U.S.C. § 7410(a). A SIP must
3
specify emission limitations and other measures necessary to maintain the NAAQS for each pollutant.
4
42 U.S.C. § 7410(a)(2)(A)-(M). Section 176(c)(1) of the CAA provides that no federal agency shall
5
“engage in, support in any way or provide financial assistance for, license or permit, or approve, any
6
activity which does not conform to [a SIP].” 42 U.S.C. § 7506(c)(1). This is referred to as the
7
“conformity” requirement. Pursuant to EPA regulations regarding conformity, BLM was required to
8
assess the RAMP’s “conformity” with California’s State Implementation Plan (SIP) applicable to
9
Imperial County. 40 C.F.R. Part 93, Subpart B; see also ISD3282-3283. BLM is not required to
10
United States District Court
For the Northern District of California
1
conduct a conformity review, however, if the data establish that the RAMP will generate PM-10 and
11
ozone in quantities below the Clean Air Act’s “de minimis” thresholds. See 40 C.F.R. § 93.153(b). For
12
Imperial County, the de minimis thresholds for PM-10 and ozone are 70 tons per year and 100 tons per
13
year, respectively, when measured as an increase over baseline conditions. BLM 3283 [Table 4-4]. In
14
the FEIS, BLM determined that adopting the preferred alternative would not result in a greater than de
15
minimis increase in emissions of PM10 and ozone compared with existing conditions. ISD3283-85. As
16
a result, the BLM was not required to make a “conformity determination” under the CAA in order to
17
adopt the 2013 RAMP.
18
Plaintiffs challenge BLM’s air quality analysis as flawed and in violation of the requirements
19
of the Clean Air Act, the Federal Land Policy Management Act and NEPA. Plaintiffs note that in the
20
Draft EIS (“DEIS”), BLM estimated that the increase in VOCs and PM-10 emissions from adopting the
21
preferred alternative in the 2013 RAMP would greatly exceed the de minimis thresholds of the
22
conformity regulations, and BLM acknowledged that if it adopted the proposed RAMP it would need
23
to carry out a full conformity determination for ozone and PM-10. ISD30858-30859. Plaintiffs contend
24
that, “[g]iven the very high emissions increases estimated in the DEIS, particularly of PM-10, it is highly
25
unlikely, if not outright impossible, that BLM could have ultimately made a finding that its proposed
26
RAMP conformed to ICAPCD’s SIPs and the relevant regulations.” Docket No. 231 at 19:4-6.
27
Between the DEIS and FEIS, BLM recalculated the emissions by changing several assumptions
28
used in the DEIS, which significantly reduced both the total estimated emissions of PM-10 and VOCs,
26
1
as well as in the difference in emissions from current conditions that would result from adoption of the
2
proposed alternatives. This analysis is described in Appendix Q to the FEIS and supporting emissions
3
data spreadsheet. ISD3790-98, ISD63133-35.
The main factor contributing to the change in projected emissions between the DEIS and FEIS
5
(an 80% reduction) is the use of actual soil data in the FEIS rather than the standard assumptions that
6
were used in the DEIS. ISD17452. The FEIS states, “[i]n reviewing the results and techniques of the
7
previous analysis [the DEIS], BLM determined the standard assumptions that were used greatly
8
overestimated emissions. Since that time, BLM has been able to collect site samples and develop a more
9
refined analysis.” ISD3795. BLM staff collected soil samples from the different recreation areas at the
10
United States District Court
For the Northern District of California
4
Dunes and determined the silt content, which is the component of the soil that contributes to PM-10
11
emissions. Id. at ISD3796-98. Using the actual soil data in the FEIS, BLM found that adoption of the
12
preferred alternative would result in a slight decrease in PM10 emissions from the baseline (Alternative
13
2), id. at ISD3284, as a result of shifting OHV activities to areas of the Dunes with lower silt content,
14
ISD3798, and implementing mitigation measures included in the preferred alternative, ISD3289.
15
Plaintiffs contend that the BLM used improper soil sampling methods because BLM did not
16
comply with ICAPCD Rule 800. Plaintiffs argue that “the required sampling methods are in the
17
county’s CAA PM-10 implementation plan in a rule denominated as ‘General Requirements for the
18
Control of Fine Particulate Matter (PM-10),’ and do not in any way appear to be to be limited to dust
19
control plans.” Docket No. 236 at 20:1-3. Plaintiffs argue that Rule 800 G.1.e, “Determination of Silt
20
Content for Unpaved Roads and Unpaved Vehicle/Equipment Traffic Areas,” requires that silt content
21
for unpaved roads and unpaved traffic areas be determined using a specific defined method or other
22
equivalent method approved by EPA, and the state and local agency. Plaintiffs assert that “BLM did
23
not use the Rule 800 method, has not claimed it has used an approved equivalent method, and remains
24
unable to detail what method it actually employed. BLM’s reliance upon the soil analysis is arbitrary.”
25
Id. at 20:7-9.
26
Defendants respond that the test method specified by ICAPCD Rule 800.G.1.e (the method
27
identified in ICAPCD Rule 800 App. B, Section C), is used to determine whether an area has a
28
“stabilized surface.” See ICAPCD Rule 800.G.1.e (“Observations to determine compliance with the
27
1
conditions specified for a stabilized surface, in any inactive disturbed surface area, whether at a work
2
site that is under construction, at a work site that is temporarily or permanently inactive, or on an open
3
area and vacant lot, shall be conducted in accordance with the test methods described in Appendix B
4
of this rule.”). Defendants contend that this regulation is inapplicable because the purpose of BLM’s
5
analysis was not to determine whether an area had a stabilized surface, but rather to determine the silt
6
content. The Court agrees with defendants that on its face, this regulation does not apply to the soil
7
sampling at issue, and thus plaintiffs have not shown that the soil sampling that BLM conducted is
8
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.
9
§ 706(2)(A).16
United States District Court
For the Northern District of California
10
Another major factor contributing to the change in projected emissions between the DEIS and
11
FEIS is BLM’s determination that increasing the number of acres available to OHVs would not increase
12
the number of visitors to the Dunes. In the DEIS, BLM assumed that the number of visitors was
13
proportional to the available acreage, and thus that opening up more acreage to OHVs would cause a
14
corresponding increase in vehicle-related emissions. ISD30936-30938, ISD30856-30859. Plaintiffs
15
contend that the change in assumptions about number of visitors is unsupported and inconsistent with
16
other parts of the FEIS, such as the sections describing social and economic impacts, which assumed
17
that opening up more acres to OHVs would increase the number of OHV visitors.
18
The Court concludes that the assumption about number of visitors in the FEIS is supported by
19
the record. As an initial matter, the Court notes that plaintiffs have not identified any data in the record
20
showing that OHV use is proportional to available area, or that opening up the closed areas will lead to
21
22
23
24
25
26
27
28
16
Plaintiffs also assert that BLM “failed to consider an important aspect of the problem”
because “BLM did not analyze the increase in dust from destroying delicate soil crusts that have formed
in the currently closed areas, despite EPA and ICAPCD calling for such analysis.” Docket No. 236 at
20:18-21. As support, plaintiffs cite a comment from ICAPCD to the DEIS and a comment by EPA to
the FEIS. See Docket No. 231 at 22:2-9 (citing ISD22874 and ISD2439). However, neither comment
specifically calls for this type of analysis. In any event, the Court does not find that the agency acted
in an arbitrary or capricious manner given the BLM’s conclusion that OHV ridership would not
increase, as well as the soil sampling which addresses the fact that opening some closed areas may
change where people choose to ride OHVs.
28
an increase in OHV visitors.17 Indeed, earlier in this litigation plaintiffs successfully challenged 2004
2
final rule designating critical habitat for the PMV by arguing that the economic analysis underlying that
3
rule incorrectly assumed that the interim OHV closures had resulted in a 15% decline per year in
4
visitation. Ctr. for Biological Diversity v. BLM, 422 F. Supp. 2d at 1148. The Court agreed with
5
plaintiffs and found that there was “no data in the record linking the interim closures to any reduced
6
OHV visitation levels at the Dunes.” Id. at 149. The Court noted, inter alia, that “the BLM itself did
7
not observe a drop in visitation related to the closures, and indicated that the temporary closures likely
8
had a minimal impact on visitation. . . . [and that] that there is no accurate pre-2002 visitation data due
9
to the BLM’s methodology for counting visitation.” Id. at 148. Plaintiffs argue that this portion of the
10
United States District Court
For the Northern District of California
1
2006 summary judgment decision was focused on an entirely different issue and an entirely different
11
record. While plaintiffs are correct that precise issue before the Court in 2006 was different, it is
12
nevertheless true that the facts before the Court in 2006 and today are the same: there is no data in the
13
record showing that the interim closures led to a decrease in OHV visitation, nor is there any data
14
conversely showing that opening up acres to OHVs will increase OHV visitation.
15
Further, as defendants note, between the DEIS and FEIS, BLM analyzed visitor data, and that
16
data showed that while the number of visitors fluctuated from year to year, those fluctuations were not
17
associated with area closures. ISD36246-36249.18 Plaintiffs assert that BLM is trying to “have it both
18
19
20
21
22
23
24
25
26
27
28
17
The FEIS does find that increases in OHV use for the preferred alternative would be “similar
to recent trends (approximately 3 percent per year, depending on economic conditions).” ISD3400. As
defendants note, an increase due to a continuation of current visitation trends – as opposed to an increase
due to opening the closed areas – is part of the baseline condition and is not as a result of the action
under review, and thus is not relevant for determining emissions associated with that action.
18
Plaintiffs cite a contractor’s 2008 economic analysis prepared for FWS regarding the revised
critical habitat designation for the PMV, which states, inter alia, that there is a “generally accepted
economic theory and studies from the economics literature which support the assumption that closure
of a portion of a recreation area is likely to result in fewer visits to that area.” ISD36211. However, as
defendants note, that same report repeatedly states that there is considerable uncertainty as to whether
the proportional visitation assumption was applicable to the Dunes. See e.g., id. at n. 3 (“Due to the
uncertainty inherent in estimating impacts of the temporary closures on visitation at the ISDRA, this
economic analysis estimates a range of pre-designation for[] OHV visitation. Under the lower bound
scenario, this analysis assumes that past closures did not affect visitation. In particular, as the BLM has
previously indicated that the past closures had a minimal impact on visitation (personal communication
with Knauf and Hamada, BLM October 17, 2003), the lower bound scenario accounts for this potential
outcome.”); see id. at 36220 (“It is not possible, using existing data, to model the effect of closures of
portions of the ISDRA on the behavior of OHV recreators at the ISDRA.”).
29
1
ways” by assuming no increased OHV visitation for the air quality analyses and assuming some increase
2
in OHV visitation in the social and economic impacts sections. However, the FEIS concluded that
3
“[n]o significant economic impacts were determined for any of the proposed alternatives.” ISD3409.
4
On this record, the Court cannot conclude that BLM’s visitor assumptions underlying the air emissions
5
analysis in the FEIS are arbitrary or capricious. Cf. San Luis & Delta-Mendota Water Authority v.
6
Jewell, ___ F.3d ___, 2014 WL 975130, at *15 (9th Cir. Mar. 13, 2014) (upholding agency’s action
7
where “FWS acknowledged the uncertainty inherent to modeling the relation between OMR flows and
8
smelt and chose a conservative model, a choice that is within the FWS’s discretion to make”).19
Finally, plaintiffs challenge BLM’s assumptions for number of OHVs, visitor days, average
10
United States District Court
For the Northern District of California
9
speed, and time spent riding OHVs. However, as defendants note, these assumptions apply equally to
11
the baseline condition and the preferred alternative, and thus have no effect on BLM’s conclusion that
12
the RAMP will not cause more than a de minimis increase in emissions given BLM’s determination that
13
the chosen alternative will not cause an increase in the number of visitors.
14
15
Accordingly, the Court concludes that BLM complied with the CAA, FLPMA and NEPA, and
GRANTS summary judgment in favor of defendants on these claims.
16
17
CONCLUSION
18
For the foregoing reasons and for good cause shown, the Court hereby GRANTS in part and
19
DENIES in part plaintiffs’ motion for summary judgment (Docket No. 231) and GRANTS in part and
20
DENIES in part defendants’ motions for summary judgment (Docket Nos. 232 & 234).
21
22
IT IS SO ORDERED.
23
24
Dated: April 3, 2014
25
SUSAN ILLSTON
United States District Judge
26
27
28
19
Plaintiffs also contend that the air quality analysis fails to account for emissions from “mother
vehicles” and campfires. However, the number of mother vehicles and campfires is directly related to
the number of visitors, and the FEIS determined that the 2013 RAMP will not increase visitorship.
30
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