1 of 15 documents united states code service

Unpublished Opinions

Unpublished: Where petitioners challenged two orders of Federal Energy Regulatory Commission regarding license for continued operation by city of hydroelectric project on river, petition for review was denied because, inter alia, National Marine Fisheries Service's conclusions that approved of downstream fish passage provisions in new license were reasonably based on best evidence. Cowlitz Indian Tribe v FERC (2006, CA9) 186 Fed Appx 806.

24.--Mineral and petroleum leases

Biological opinion requiring the sale of oil and gas leases on national forest land by agency is required to include all phases of agency action, including post-leasing activities based on best scientific and commercial data available and requirement is not excused by insufficient information pertaining to specific location and extent of post-leasing oil and gas activities to render comprehensive biological opinion beyond initial lease stage unnecessary and comprehensive biological opinion is not rendered unnecessary by incremental-step consultation process written into the leases. Conner v Burford (1988, CA9 Or) 836 F2d 1521, 27 Envt Rep Cas 1443, 10 FR Serv 3d 560, 18 ELR 20379, reprinted as amd on other grounds (1988, CA9 Mont) 848 F2d 1441, 18 ELR 21182, 100 OGR 84 (criticized on other grounds in NRDC v United States Army Corps of Eng'rs (2001, SD Fla) 31 ELR 20880).

Conservation groups were entitled to summary judgment where federal agencies' biological opinions granting incidental take permits to gravel mining company under 16 USCS §§ 1536(a)(2) and 1539(a)(1) were arbitrary and capricious under 5 USCS § 706(2)(A) because they ignored company's preexisting reclamation obligations under Wash. Rev. Code § 78.44.111; federal agencies should have considered company's state obligations in its starting baseline for determining environmental effect of additional mining because state obligations were not too hypothetical to be included in baseline. Friends of the East Fork, Inc. v Thom (2010, WD Wash) 688 F Supp 2d 1245, 71 Envt Rep Cas 1882, 40 ELR 20063.

25.--Water rights; flood control

Navy's reliance on Fish and Wildlife Service's biological "no jeopardy" opinions in leasing out lands and contiguous water rights over objection that leases threatened endangered species of fish was not arbitrary and capricious. Pyramid Lake Paiute Tribe of Indians v United States Dep't of Navy (1990, CA9 Nev) 898 F2d 1410, 20 ELR 20572.

Because Fish and Wildlife Service "reasonable and prudent measure" (RPM) involving mitigation of X2 movement (X2 measured intrusion of water with salinity level of two parts per thousand concentration of salt into Sacramento-San Joaquin Delta) was major change and, therefore, invalid under regulations of Endangered Species Act, 16 USCS § 1531 et seq., setting aside of this RPM was affirmed. Westlands Water Dist. v United States DOI (2004, CA9 Cal) 376 F3d 853, 58 Envt Rep Cas 2024, 34 ELR 20054.

Because Army Corps of Engineers was able to exercise its discretion in determining how best to fulfill purposes of Flood Control Act of 1944, its operation of reservoir system on Missouri River was subject to Endangered Species Act; Corps was therefore authorized to consult with Fish and Wildlife Service to produce Biological Opinion pursuant to 16 USCS § 1536(a)(2). Am. Rivers, Inc. v United States Army Corps of Eng'rs. (2005, CA8 Minn) 421 F3d 618, 61 Envt Rep Cas 1038, 35 ELR 20173, cert den (2006) 547 US 1097, 126 S Ct 1880, 164 L Ed 2d 566 and cert den (2006) 547 US 1097, 126 S Ct 1879, 164 L Ed 2d 566, 63 Envt Rep Cas 1128 and cert den (2006) 547 US 1097, 126 S Ct 1879, 164 L Ed 2d 566.

Under 16 USCS § 1536, Fish and Wildlife Service and National Marine Fisheries Service were not required to prepare separate "environmental baseline" prior to issuing biological opinions concerning Bureau of Reclamation's operating plan for federal reclamation project, which was intended to protect endangered fish species during drought year, since baseline, by definition, included all human activities affecting listed species in action area. Kandra v United States (2001, DC Or) 145 F Supp 2d 1192, 52 Envt Rep Cas 1928.

Where (1) Fish and Wildlife Service (FWS) issued biological opinion (BiOp) calling upon Army Corps of Engineers (Corps) to institute water management regimen on river basin to protect endangered species, (2) Corps' plan did not implement water flow regimes, and (3) FWS issued supplemental BiOp reversing its original position, environmental organizations were entitled to preliminary injunction against Corps for violating Endangered Species Act, 16 USCS §§ 1531 et seq. Am. Rivers v United States Army Corps of Eng'rs (2003, DC Dist Col) 271 F Supp 2d 230, 57 Envt Rep Cas 1106, 33 ELR 20239.

Army Corps of Engineers implemented program to conserve endangered and threatened species (specifically kit foxes and red-legged frogs) at project site in conjunction with its permitting program under § 404(b)(1) of Clean Water Act, 33 USCS § 1344(b)(1), and, as result of consultation with Fish and Wildlife Service, district engineer could add species-specific regional endangered species conditions to permit; thus, Corps was not arbitrary and capricious in carrying out its duties under 16 USCS § 1536(a)(1). Protect Our Water v Flowers (2004, ED Cal) 377 F Supp 2d 844.

Biological opinion (BO) and reasonable and prudent alternatives (RPAs) issued by Fish and Wildlife Service with respect to Federal Emergency Management Agency's (FEMA) National Flood Insurance Program (NFEP) in Florida Keys violated Endangered Species Act, 16 USCS § 1536, because (1) BO failed to consider whether FEMA's NFIP was continuing to jeopardize eight listed endangered species, (2) RPAs failed to protect against jeopardy to these species, illegally relied on voluntary measures, failed to account for cumulative effects of proposed projects, and failed to protect against habitat loss and fragmentation, (3) BO did not adequately protect against adverse modification of critical habitat for another certain endangered animal, and (4) FEMA failed to develop conservation program for eight listed species. Fla. Key Deer v Brown (2005, SD Fla) 364 F Supp 2d 1345, 18 FLW Fed D 424, injunction gr, remanded on other grounds (2005, SD Fla) 386 F Supp 2d 1281, 18 FLW Fed D 890, affd (2008, CA11 Fla) 522 F3d 1133, 66 Envt Rep Cas 1225, 38 ELR 20083, 21 FLW Fed C 515.

Army Corps of Engineers did not violate Endangered Species Act, 16 USCS §§ 1531 et seq., by relying on biological opinions that were issued by Fish and Wildlife Service (FWS) and National Marine Fisheries Service where record showed that FWS was aware that removal of causeway would have restored historic navigational and hydrologic connectivity between eastern and western portion of lake and expressed concern about increased boat traffic was speculative. Fla. Keys Citizens Coalition, Inc. v United States Army Corps of Eng'rs (2005, SD Fla) 374 F Supp 2d 1116, 18 FLW Fed D 759, costs/fees proceeding, magistrate's recommendation (2005, SD Fla) 2005 US Dist LEXIS 17104, costs/fees proceeding, magistrate's recommendation (2005, SD Fla) 386 F Supp 2d 1266.

In case brought under Endangered Species Act, 16 USCS §§ 1531 et seq. summary judgment was granted to council because two consulting agencies did not comply with jeopardy and critical habitat prongs of 16 USCS § 1536 when biological opinions (BiOps) were issued prior to renewal of certain water contracts; BiOps failed to adequately discuss adverse modification prong, species recovery and conservation were not analyzed, entire agency action was not considered because operations and maintenance activities were not analyzed, jeopardy analysis was completed on some species before consultation was completed, and use of historical average water supplies instead of full contractual amount was improper. NRDC v Rodgers (2005, ED Cal) 381 F Supp 2d 1212, 61 Envt Rep Cas 1771.

In action in which water users challenged Biological Opinion (BiOp) that U.S. Fish and Wildlife Service prepared regarding impact of water projects on threatened delta smelt pursuant to 16 USCS § 1536 of Endangered Species Act, district court concluded that BiOp was not arbitrary and capricious under 5 USCS § 706(2)(A) because there was no express language in § 1536 or in 50 CFR § 402.02 mandating that first three definitional elements of Reasonable and Prudent Alternative under § 402.02 be discussed on face of BiOp as opposed to administrative record supporting BiOp. Delta Smelt Consol. Cases v Salazar (2009, ED Cal) 666 F Supp 2d 1137, 71 Envt Rep Cas 1055, summary judgment den, motion to strike den (2009, ED Cal) 2009 US Dist LEXIS 101794.

26.--Particular species

In preparing environmental impact statement addressing plan for future use of former military base, National Park Service did not ignore available scientific and commercial data showing encroachment of proposed development on mission blue butterfly habitat where city failed to prove that proposed parking lot encroached on that habitat, U.S. Fish and Wildlife Service and National Marine Fisheries Service actively participated in environmental impact statement process and issued their opinions as to mitigation measures for threatened and endangered species, and there was no evidence that National Park Service had failed to disclose any information to wildlife agencies. City of Sausalito v O'Neill (2002, ND Cal) 2002 US Dist LEXIS 12457.

Pursuant to 16 USCS § 1536(a)(2) and 5 USCS § 706(2)(A), National Marines Fisheries Service had not arbitrarily and capriciously singled out pelagic longlining fisheries over other activities that harmed listed turtle species when it closed area to pelagic longline fishing where agency's second biological opinion had analyzed impacts of other activities within area and was based on best scientific data available. Blue Water Fishermen's Ass'n v Nat'l Marine Fisheries Serv. (2002, DC Mass) 226 F Supp 2d 330.

For purposes of review under Administrative Procedure Act, National Marine Fisheries Service's (NMFS) use of sea turtle mortality rates data from 1970s and 1980s was not inherently irrational or arbitrary and capricious application of Endangered Species Act because, although mortality rates constructed from data in 1970s and 1980s might not have been perfect proxies for current loggerhead sea turtle mortality rates, agency's reliance on them was not unreasoned as these rates were only viable data available for basing its estimates; NFMS's analysis of federally authorized scallop fisheries upon loggerhead sea turtle mortality rates as part of its biological opinion was adequate because agency made concerted effort to evaluate scallop fisheries impact in light of environmental baseline and was not required to numerically add "takes" from different sources together. Oceana, Inc. v Evans (2005, DC Dist Col) 384 F Supp 2d 203.

In action filed by plaintiff environmental groups, Biological Opinion issued under Endangered Species Act, 16 USCS § 1531 et seq., that had finding as to sea turtles that conservation rule would cause jeopardy to their continued existence, and thus, four-pronged Reasonable and Prudent Alternative was designed to reduce post-release mortality, Opinion did not violate 16 USCS § 1536(b)(4) because in reaching its conclusions, defendant National Marine Fisheries Service relied upon following two premises--that particular hook would reduce leatherback turtle captures by 50 percent and that increased gear removal rates would dramatically reduce post-release mortality. Ocean Conservancy v Gutierrez (2005, DC Dist Col) 394 F Supp 2d 147, 35 ELR 20208, dismd, in part (2006, App DC) 2006 US App LEXIS 18596 and affd (2007, App DC) 376 US App DC 324, 488 F3d 1020, 64 Envt Rep Cas 1577, 37 ELR 20124.

27.----Birds

In jeopardy analysis performed pursuant to 16 USCS § 1536(a)(2), part of Endangered Species Act, 16 USCS §§ 1531 et seq., habitat analysis was not just simplistic "x number acres = y number of owls" type of equation; rather, habitat proxy took into account type of land, extent of degradation of habitat, relationship between different habitats, owls' distribution, owls' range, and competition from other species, forest insects, and disease and Fish and Wildlife Service had program of demographic studies that supplemented and verified habitat results; thus, use of habitat proxy was not impermissible. Gifford Pinchot Task Force v United States Fish & Wildlife Serv. (2004, CA9 Wash) 378 F3d 1059, 59 Envt Rep Cas 1110, 34 ELR 20068, amd on other grounds (2004, CA9 Wash) 387 F3d 968.

In case arising under Endangered Species Act of 1973, 16 USCS §§ 1531 et seq., in which Native American tribe (Tribe) appealed district court's entry of summary judgment in favor of U.S. Fish & Wildlife Service (Service), Tribe unsuccessfully argued that Service's 2006 biological opinion was not in accordance with law because it failed to follow proper procedures, which required analyzing environmental baseline and cumulative effects; Tribe was unable to show that two state projects located within 841,000 acres of Everglade Snail Kite's critical habitat had any adverse impact on Kite, or that anyone believed that they did, and biological opinion briefly considered possibility of there being some development outside of Army Corps of Engineers' control. Miccosukee Tribe of Indians v United States (2009, CA11 Fla) 566 F3d 1257, 68 Envt Rep Cas 1929, 39 ELR 20097, 21 FLW Fed C 1780.

In case arising under Endangered Species Act of 1973 (Act), 16 USCS §§ 1531 et seq., in which Native American tribe (Tribe) appealed district court's entry of summary judgment in favor of U.S. Fish & Wildlife Service (Service), Tribe unsuccessfully argued that Services' 2006 biological opinion was arbitrary and capricious because it arrived at conclusions that were counter to scientific data in record or were so implausible that they went beyond acceptable difference of expert opinion; deference owed 2006 biological opinion was especially strong because Service had to predict future hydrologic conditions and estimate likelihood, extent, and duration of injury to species; in light of facts before Service, its determination in its 2006 biological opinion that action will not jeopardize Everglade Snail Kite or adversely modify its habitat within meaning of Act was not arbitrary and capricious. Miccosukee Tribe of Indians v United States (2009, CA11 Fla) 566 F3d 1257, 68 Envt Rep Cas 1929, 39 ELR 20097, 21 FLW Fed C 1780.

28.----Fish

District court's issuance of injunction pursuant to Endangered Species Act, 16 USCS §§ 1531-1544, was affirmed where National Wildlife Foundation had altered its own interpretation of statute significantly in its biological opinion concerning salmon and steelhead in Federal Columbia River Power System, and agency's interpretation was thus entitled to little deference. Nat'l Wildlife Fed'n v Nat'l Marine Fisheries Serv. (2005, CA9 Or) 418 F3d 971, amd on other grounds (2005, CA9 Or) 422 F3d 782, 60 Envt Rep Cas 1929, injunction gr, in part, on remand (2005, DC Or) 2005 US Dist LEXIS 39509, affd (2007, CA9 Or) 481 F3d 1224, 64 Envt Rep Cas 1353, 37 ELR 20079.

Environmental groups successfully challenged National Marine Fisheries Service's (NMFS's) North Pacific Fishery Management Plans for groundfish fisheries in Bering Sea and Gulf of Alaska, where biological opinion relied upon by NMFS is limited in scope, heavy on general background information, and deficient in focused and meaningful discussion and analysis of how these large fisheries, and complex management measures which regulate them, affect endangered Steller sea lions, because 16 USCS § 1536 requires comprehensive biological opinion that addresses full scope of agency action. Greenpeace v National Marine Fisheries Serv. (2000, WD Wash) 80 F Supp 2d 1137, 50 Envt Rep Cas 1237, 30 ELR 20314 (criticized in Ocean Mammal Inst. v Gates (2008, DC Hawaii) 2008 US Dist LEXIS 42068).

Environmental group's challenge to National Marine Fisheries Service's fishery management plan, on ground prior consultation had violated 16 USCS § 1536, was not rendered moot by Service's reinitiation of formal consultation, where government's allegedly inadequate prior consultation efforts remained as basis of biological opinions that still governed plan. Greenpeace Found. v Mineta (2000, DC Hawaii) 122 F Supp 2d 1123, 51 Envt Rep Cas 1925.

Findings and analysis of United States National Marine Fisheries Service (NMFS) regarding winter-run Chinook were incomplete, arbitrary and capricious because (1) NMFS failed to consider recovery of species; and (2) NMFS's factual findings and analyses were themselves contradictory as to survival of species, and these findings and analyses contradicted its no jeopardy conclusions. Pac. Coast Fed'n of Fishermen's Ass'ns v Gutierrez (2008, ED Cal) 2008 US Dist LEXIS 31462, Amd on other grounds, summary judgment gr, in part, summary judgment den, in part (2008, ED Cal) 67 Envt Rep Cas 1674, amd on other grounds, summary judgment gr, in part, summary judgment den, in part (2008, ED Cal) 606 F Supp 2d 1122, findings of fact/conclusions of law, request den (2008, ED Cal) 606 F Supp 2d 1195, 68 Envt Rep Cas 1234.

Biological opinion (BiOp) of United States National Marine Fisheries Service (NMFS) regarding spring-run Chinook was incomplete, contradictory, and violated Endangered Species Act and Administrative Procedures Act because it had (1) failed to define and consider effects on spring-run critical habitat as required by 16 USCS § 1533, important aspect of no jeopardy 16 USCS § 1536 BiOp; (2) failed to explain why no jeopardy findings are contradicted by record evidence developed by agency; and (3) failed to adequately analyze recovery of spring-run chinook. Pac. Coast Fed'n of Fishermen's Ass'ns v Gutierrez (2008, ED Cal) 2008 US Dist LEXIS 31462, amd on other grounds, summary judgment gr, in part, summary judgment den, in part (2008, ED Cal) 67 Envt Rep Cas 1674, amd on other grounds, summary judgment gr, in part, summary judgment den, in part (2008, ED Cal) 606 F Supp 2d 1122, findings of fact/conclusions of law, request den (2008, ED Cal) 606 F Supp 2d 1195, 68 Envt Rep Cas 1234.

29.----Mammals

Failure of National Marine Fisheries Service to prepare comprehensive biological opinion as to adverse effect of fishery management plan on endangered Stellar sea lion warranted injunction of groundfish trawl fishing within critical habitat until appropriate opinion was prepared, since failure to prepare opinion was substantial procedural violation of 16 USCS § 1536, and, hence, irreparable harm was presumed. Greenpeace v National Marine Fisheries Serv. (2000, WD Wash) 106 F Supp 2d 1066, 51 Envt Rep Cas 1119, summary judgment gr, in part, summary judgment den, in part,, remanded (2002, WD Wash) 237 F Supp 2d 1181.

Permit allowing limestone mining company to deposit dredge and fill material in wetlands area within habitat of endangered Florida panther was invalid because it relied on erroneous finding of no jeopardy in Biological Opinion by Fish and Wildlife Service (FWS); finding by FWS that area that was involved was relatively small in comparison to total habitat acreage was not dispositive by itself of effect of mining on panther habitat, and FWS improperly disregarded reasonably foreseeable future projects in evaluating cumulative impact of mining operation. Nat'l Wildlife Fed'n v Norton (2004, DC Dist Col) 332 F Supp 2d 170, 59 Envt Rep Cas 1576.

30. Mitigation lands

16 USCS § 1536 dictates that if an agency plans to mitigate its project's adverse effects on endangered species by acquiring habitat and creating refuge, it must insure creation of that refuge before it permits destruction or adverse modification of other habitat. Sierra Club v Marsh (1987, CA9 Cal) 816 F2d 1376, 17 ELR 20717.

Although Corps of Engineers complied with Endangered Species Act by entering into agreement to insure that flood control project was not likely to jeopardize endangered species, insurance lapsed when COE learned that expectations under agreement were not being fulfilled and COE is in violation of 16 USCS § 1536(a)(2) by allowing destruction or adverse modification of any part of bird's habitat without first insuring acquisition and preservation of mitigation lands. Sierra Club v Marsh (1987, CA9 Cal) 816 F2d 1376, 17 ELR 20717.

Where, pursuant to environmental assessment, Fish and Wildlife Service promulgated requirement that landowner acquire 77 off-site acres of additional wildlife refuge pursuant to 16 USCS § 1536(a)(2), impediment to landowner's use of its property could constitute taking without compensation under U.S. Const. amend. V. Schooner Harbor Ventures, Inc. v United States (2009, CA FC) 569 F3d 1359, 39 ELR 20132, complaint dismd, judgment entered, on remand (2010) 92 Fed Cl 373.

31. Consultation with Secretary or agency

Conservation organizations were granted injunction against defendants, Secretary of Interior and U.S. Fish and Wildlife Service, requiring formal consultation, in conjunction with issuance of biological opinion, prior to taking of any agency action that might affect lynx or its critical habitat, after defendants declared lynx to be threatened rather than endangered and failed to designate critical habitat. Defenders of Wildlife v Norton (2002, DC Dist Col) 239 F Supp 2d 9, remanded (2004, App DC) 89 Fed Appx 273.

National Marine Fisheries Service's (subagency of NOAA) definition of "action area," which limited its scope to main stems of Columbia and Snake Rivers, was arbitrary and capricious because it was inconsistent both with regulatory requirements and geographic region NOAA actually considered in order to justify no-jeopardy conclusion; record clearly established that NOAA improperly relied on range-wide off-site federal mitigation actions that had not undergone consultation under § 7 (16 USCS § 1536(a)(2)) of Endangered Species Act, and non-federal mitigation actions that were not reasonably certain to occur in order to reach no-jeopardy conclusion as to eight of twelve salmon "Evolutionary Significant Units." Nat'l Wildlife Fed'n v Nat'l Marine Fisheries Serv. (2003, DC Or) 254 F Supp 2d 1196, 57 Envt Rep Cas 1018, 33 ELR 20195.

Congress did not leave it to discretion of Fish and Wildlife Service and National Marine Fisheries Service to define "consultation" in way that results in no consultation at all on "not likely to adversely affect" (NLAA) actions under § 7(a)(2) of Endangered Species Act, 16 USCS § 1536(a)(2); while wording of statute and statute's lack of granular direction on process of consultation may leave it to discretion of Services to create range of types of consultation, "shall . . . in consultation with" cannot be read as "no consultation on NLAA actions." Wash. Toxics Coalition v United States DOI (2006, WD Wash) 457 F Supp 2d 1158, 64 Envt Rep Cas 1280, 36 ELR 20190.

32.--Application of consultation requirement

As to communications towers in Gulf Coast region, Federal Communications Commission declined to consult with United States Fish and Wildlife Service (FWS), per 16 USCS § 1536(a)(2), stating that there was no evidence of any synergies among towers that would have caused them cumulatively to have significant environmental impacts that they did not have individually; Commission's reliance on lack of "synergies" was not further explained in order; this explanation was inadequate. Am. Bird Conservancy, Inc. v FCC (2008, App DC) 380 US App DC 102, 516 F3d 1027, 65 Envt Rep Cas 2025, 38 ELR 20052.

Interior Secretary's issuance of regulations which limit "consultation provision" of 16 USCS § 1536 to endangered species within United States are invalid, because broad language of statute indicates congressional intent for extraterritorial application of consultation requirement. Defenders of Wildlife v Hodel (1989, DC Minn) 707 F Supp 1082, 19 ELR 20822, affd (1990, CA8 Minn) 911 F2d 117, 32 Envt Rep Cas 1213, 20 ELR 21442, reh den, en banc (1990, CA8) 1990 US App LEXIS 22299 and revd, remanded on other grounds (1992) 504 US 555, 119 L Ed 2d 351, 112 S Ct 2130, 92 CDOS 4985, 92 Daily Journal DAR 7876, 92 Daily Journal DAR 8967, 34 Envt Rep Cas 1785, 22 ELR 20913, 6 FLW Fed S 374.

Federal Emergency Management Agency (FEMA) violated § 7(a)(2) (16 USCS § 1536(a)(2)) of Endangered Species Act by failing to consult with National Marine Fisheries Service (NMFS) to ensure that regulations establishing minimum eligibility criteria for NFIP, mapping of floodplains, and revisions thereof, and Community Rating System were not likely to jeopardize continued existence of Puget Sound Chinook salmon; FEMA's failure to consult with NMFS was arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law, and without observance of procedure that was required by law, 5 USCS § 706(2)(A), (D). Nat'l Wildlife Fed'n v FEMA (2004, WD Wash) 345 F Supp 2d 1151, 59 Envt Rep Cas 1973.

Federal Emergency Management Agency had discretion to act for benefit of Puget Sound Chinook salmon in implementing National Flood Insurance Program, and, thus, consultation with National Marine Fisheries Service (NMFS) was ordered. Nat'l Wildlife Fed'n v FEMA (2004, WD Wash) 345 F Supp 2d 1151, 59 Envt Rep Cas 1973.

Because National Flood Insurance Act, 42 USCS §§ 4001 et seq., required Federal Emergency Management Agency to review flood maps at least once every five years to assess need to update all floodplain areas and flood risk zones, pursuant to 42 USCS § 4101(e), (f)(1), agency activity was clearly ongoing one that was subject to Endangered Species Act's consultation requirements. Nat'l Wildlife Fed'n v FEMA (2004, WD Wash) 345 F Supp 2d 1151, 59 Envt Rep Cas 1973.

Where reinitiation of consultation process under § 7 of Endangered Species Act, 16 USCS § 1536, was found to be required because U.S. Supreme Court precedent resulted in modification of implementation of city's habitat conservation plan and compliance with incidental take permit, district court rejected argument that Supreme Court decision eliminated Army Corps of Engineers' Clean Water Act review process and meant that developers could effect vernal pool species by complying with terms that were submitted by city in its habitat conservation plan; plan's vague and porous protections were absolutely inadequate to minimize and mitigate harm to vernal pool species, and builders that were asserting argument were simply seeking windfall; rather than district court rewriting or reissuing permit, proper course was for expert agency to consider what protections were necessary when specific development would affect seven vulnerable vernal pool species that were at issue. Southwest Ctr. for Biological Diversity v Bartel (2006, SD Cal) 457 F Supp 2d 1070, injunction gr, summary judgment gr, in part, summary judgment den, in part on other grounds, remanded (2006, SD Cal) 470 F Supp 2d 1118 (criticized on other grounds in Spirit of the Sage Council v Kempthorne (2007, DC Dist Col) 511 F Supp 2d 31, 66 Envt Rep Cas 1286, 37 ELR 20235) and app dismd, remanded (2011, CA9 Cal) 2011 US App LEXIS 950.

Agency's duty to confer with U.S. Fish and Wildlife Service under 16 USCS § 1536(a)(2) arises as of time that all of necessary information is available and it is possible for agencies to engage in meaningful conference regarding decision to be made. Wilderness Soc'y v Wisely (2007, DC Colo) 524 F Supp 2d 1285, 37 ELR 20215.

Where U.S. Bureau of Land Management (BLM) decided that resumption of oil and gas leasing in wilderness area would have no significant environmental impact, BLM's duty to confer with U.S. Fish and Wildlife Service under 16 USCS § 1536(a)(2) arose prior to that decision, rather than prior to time leases were actually awarded, but lack of prior conferral was harmless since no new substantive information arose after decision to resume leasing and before subsequent informal conferral between agencies, and thus there was no reason to believe that prior conferral would have yielded different results. Wilderness Soc'y v Wisely (2007, DC Colo) 524 F Supp 2d 1285, 37 ELR 20215.

BLM decision to offer federal lands for oil and gas leasing may trigger requirement that it consult with Fish and Wildlife Service pursuant to 16 USCS § 1536 in order to determine whether leasing and all post-leasing activities through production and abandonment are likely to jeopardize continued existence of any listed species, or destroy or adversely modify its critical habitat; however, such obligation only arises where listed species is not only present in proposed lease area, but is also affected by leasing and potential oil and gas development. Forest Guardians (2006) 170 IBLA 80.

When it is determined that proposed action may affect, and is likely to adversely affect, threatened and endangered species, BLM is required by 16 USCS § 1536(a)(2) to formally consult with Fish and Wildlife Service (FWS) in order to ensure that such action is not likely to jeopardize continued existence of species or destroy or adversely modify its critical habitat; formal consultation is not required when BLM determines, with concurrence of FWS, that proposed action may affect, but is not likely to adversely affect species. Biodiversity Conservation Alliance, et al. (2007) 171 IBLA 218.