Center for Biological Diversity et al v. U.S. Fish and Wildlife Service et al
Filing
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ORDER Granting 81 Defendants' Motion for Extension of Time to Complete Remand. Signed by Judge Edward M. Chen on 3/20/2012. (emcsec, COURT STAFF) (Filed on 3/20/2012)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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CENTER FOR BIOLOGICAL DIVERSITY,
et al.,
No. C-08-1278 EMC
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Plaintiffs,
ORDER GRANTING DEFENDANTS’
MOTION FOR EXTENSION OF TIME
TO COMPLETE REMAND
v.
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For the Northern District of California
United States District Court
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UNITED STATES FISH AND WILDLIFE
SERVICE, et al.,
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Defendants.
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(Docket No. 81)
___________________________________/
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Defendants moved for an extension of time to complete the Incidental Take Statement
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(“ITS”) from December 2011 to October 28, 2013. Docket No. 81 (“Motion”). For the reasons set
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forth below, the Court GRANTS Defendants’ motion and will extend the deadline to May 13, 2013.
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I.
DISCUSSION
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Pursuant to regulations governing the implementation of the Endangered Species Act
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(“ESA”), an agency has 30 days from a request for consultation to respond. 50 C.F.R. § 402.12(c),
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(d) (2012). The agency then has 180 days to complete the Biological Assessment unless the
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agencies agree on a different time period. Id. § 402.12(i). Formal consultation must then begin
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within 90 days unless administratively extended. Id. § 402.12(e). Formal consultation must then be
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completed within 90 days of the date on which initiated, unless a different period of time is mutually
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agreed upon by the agencies. 16 U.S.C. § 1536(b) (2006). Finally, within 45 days of concluding
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formal consultation, the Biological Opinion must be delivered to the action agency. Altogether, this
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process takes approximately 11.5 months, with 135 days to complete the Biological Opinion after
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the Biological Assessment is completed. Notably, unlike deadlines in Section 4 listings, deadlines in
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Section 7 consultation are not mandatory and may be extended as appropriate. 50 C.F.R. § 402.12;
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16 U.S.C. § 1536(b).
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In the instant case, the Court finds that an extension of time is appropriate because the
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original 2005 Biological Opinions are outdated. Defendants have identified new species, issued new
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or revised critical habitat designations, and developed new information regarding many of the
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impacted species. Motion at 4; Docket No. 81-1 ¶¶ 8-9 (“Metz Decl.”). As a result of this new
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information, Defendants intend to consult new consultations, which would entail new Biological
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Assessments and Biological Opinions. Motion at 5; Metz Decl. ¶ 11.
Defendants state that writing the Biological Assessment, the first step of the consultation
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For the Northern District of California
United States District Court
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process, will take until December 2012 because of the complexity and scope of the affected Forests,
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which cover approximately 3.5 million acres. Motion at 5, 8; Metz Decl. ¶ 17. Only then will
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Defendants be able to complete a Biological Opinion and the accompanying ITS, as an ITS must be
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based on a valid Biological Opinion. See Or. Natural Res. Council v. Allen, 476 F.3d 1031, 1036
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(9th Cir. 2007) (“Even a cursory review of the regulations governing formal consultation
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demonstrates that Incidental Take Statements supplement BiOps, and were not meant to stand
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alone.”). An ITS based on the outdated 2005 Biological Opinion would be insufficient, and the ESA
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is better served if Defendants complete new and accurate Biological Opinions that will then form the
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basis of the ITS.
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The Court finds that Plaintiffs will not be prejudiced by the delay because of the injunctive
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relief previously issued by the Court. For example, Plaintiffs argue that allowing an extension to
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complete the National Marine Fisheries Service (“NMFS”) Biological Opinion will harm the
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endangered steelhead. Any harms to the species will be mitigated by the Court’s issuance of
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injunctive relief, including the implementation of the 2001 incidental take thresholds and a steelhead
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monitoring and tracking program. Docket No. 59 at 5; Docket No. 87 at 10-11. Thus, an extension
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of time is appropriate to permit Defendants to complete new consultations.
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However, the Court will only extend the remand period to May 13, 2013 for both the NMFS
and Fish and Wildlife Service (“FWS”) Biological Opinions. While Defendants have adequately
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explained why an extension of time to December 2012 is necessary to complete the Biological
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Assessments, Defendants have not explained why additional time beyond the 135 days set out in the
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ESA’s regulations for consultation after the completion of the Biological Assessments is necessary.
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Defendants have simply stated that they can complete NMFS’s Biological Opinion by May 13,
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2013, 135 days after the Biological Assessments are completed, but have not adequately explained
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why it is not possible to finish FWS’s Biological Opinion by that same date. Accordingly, the Court
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will require that both Biological Opinions are completed by May 13, 2013. This will keep both
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Biological Opinions on the same schedule, permitting the agencies to coordinate their work and
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ensure that the terms and analyses in the Biological Opinion are consistent.
The Court further finds that a bi-monthly status report is unnecessary, and will divert limited
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For the Northern District of California
United States District Court
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agency resources from the consultation process. Instead, the Court will require a status report: (1)
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when the Forest Service completes the draft Biological Assessments, (2) when FWS and NMFS
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have reviewed the Biological Assessments and concluded that they are complete, (3) when FWS and
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NMFS complete the consultations, and (4) when FWS and NMFS complete the Biological Opinions.
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II.
CONCLUSION
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For the reasons stated above, the Court GRANTS Defendants’ motion for an extension of
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time to complete the Incidental Take Statement to May 13, 2013. The Court will also require that
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Defendants submit status reports as outlined above.
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This order disposes of Docket No. 81.
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IT IS SO ORDERED.
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Dated: March 20, 2012
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_________________________
EDWARD M. CHEN
United States District Judge
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