Defenders of Wildlife et al v. U.S. Fish and Wildlife Service et al

Filing 65

ORDER re Additional Questions for Preliminary Injunction Hearing. Signed by Judge Lucy H. Koh on 5/20/2016. (lhklc3, COURT STAFF) (Filed on 5/20/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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DEFENDERS OF WILDLIFE, et al.,
Plaintiffs,

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v.

Case No. 16-CV-01993-LHK
ADDITIONAL QUESTIONS FOR
PRELIMINARY INJUNCTION
HEARING

U.S. FISH AND WILDLIFE SERVICE, et
al.,
Defendants.

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Each side shall address the following additional questions at the May 20, 2016 hearing.
Additional Questions for Plaintiffs:
 What do Plaintiffs believe would have been the correct procedure? For the Corps to have
described the project narrowly, as limited to the areas related to the Corps’ jurisdiction,
followed by FWS issuing a more limited biological opinion and PVS seeking a Section 10
permit for the larger project?
 It appears that Plaintiffs do not dispute that the Corps could require the purchase of the offsite conservation lands as a condition of the Section 404 permit. Rather, Plaintiffs dispute
whether the Corps has discretionary authority to require ongoing conservation of the
conservation lands in this case after five years. Is that correct?
 The Corps points to 33 C.F.R. § 325.4, which requires special conditions to be added to
Section 404 permits “when such conditions are necessary to satisfy legal requirements or
to otherwise satisfy the public interest requirement,” such as “compliance with the
404(b)(1) guidelines . . . [and] the Endangered Species Act.” Why is this insufficient legal
basis for the Corps’ incorporation of all of the terms and conditions of the biological
opinion?
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Case No. 16-CV-01993-LHK
ADDITIONAL QUESTIONS FOR PRELIMINARY INJUNCTION HEARING

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

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Additional Questions for Defendants:
 How does the Corps respond to Plaintiffs’ argument that many of the conservation
measures are required by state and local permitting and thus not properly considered as
part of the Corps’ federal action?
 Given that the Corps represented to the Service in August 2015 that the biological opinion
would become binding on Panoche Valley Solar for the life of the project through a permit
issued by the Corps, why didn’t the Corps initially incorporate all of the terms and
conditions of the biological opinion into the Section 404 permit?
 In ten years, imagine that Panoche Valley Solar acts in a way that alters the project design
(cancelling the conservation easement, for example, or adding new transmission lines). If
the Corps reinitiates consultation, on what federal action is the Corps seeking consultation?
If the federal action is the continuing validity of the permit, how does the Corps retain the
ability to influence Panoche Valley Solar’s actions through the permit once the dredged
and fill activities are complete?

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IT IS SO ORDERED.

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United States District Court
Northern District of California



Why isn’t the Corps’ explicit inclusion of the terms and conditions of the biological
opinion into the Section 404 permit sufficient for the Corps to “retain” the “discretionary
Federal involvement or control” required for reinitiation of consultation pursuant to 50
C.F.R. § 402.16?
Why doesn’t the Ninth Circuit’s decision in BLM mean that the conservation measures
proposed in the project design are “reasonably certain to occur”? As noted in the
supplemental briefing question, the Ninth Circuit indicated in BLM that conservation
measures incorporated into the proposed project design are enforceable by the Service or
the public should the action agency fail to enforce those measures.

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Dated: May 20, 2016
______________________________________
LUCY H. KOH
United States District Judge

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Case No. 16-CV-01993-LHK
ADDITIONAL QUESTIONS FOR PRELIMINARY INJUNCTION HEARING