1 of 15 documents united states code service

Unpublished Opinions

Unpublished: U.S. Forest Service did not violate law because it used environmental assessment instead of environmental impact statement when it reviewed proposal to construct 15-mile segment of Arizona Trail; Forest Service took required hard look at uncertainty of impact of trail at Little Springs and project's impact on public safety and endangered species, and record supported Forest Service's finding that adverse impact on endangered Mexican spotted owl was not significant. Wilson v Turner (2007, CA9 Ariz) 257 Fed Appx 55.

16. Biological assessment

Although 16 USCS § 1536(c)(1) allows biological assessment to be undertaken as part of Federal agency's compliance with requirements of National Environmental Policy Act of 1969 (42 USCS § 4332) it does not indicate that biological assessment may substitute entirely for environmental assessment. Save the Yaak Committee v Block (1988, CA9 Mont) 840 F2d 714, 27 Envt Rep Cas 1687, 18 ELR 20608, amd on other grounds (1988, CA9 Mont) 18 ELR 20869.

In action by city against National Park Service in which city sought to enjoin NPS from implementing its Fort Baker Plan for development and rehabilitation of former military base into national park, district court properly concluded that NPS did not violate Endangered Species Act, 16 USCS §§ 1531-1544; NPS prepared adequate biological assessment with respect to Plan's effects on Mission Blue Butterfly and on salmonids and, although NPS did not comply with 180-day deadline under 16 USCS § 1536(c)(1) for preparing biological assessment, city was not entitled to remedy as result of tardiness on part of NPS because city pointed to no harm resulting from belated NPS biological assessment. City of Sausalito v O'Neill (2004, CA9 Cal) 386 F3d 1186, 59 Envt Rep Cas 1304, 34 ELR 20121.

Record did not support nonprofit corporation's claim that U.S. Surface Transportation Board (STB) and U.S. Fish and Wildlife Service (FWS) did not comply with § 7 of Endangered Species Act, 16 USCS § 1536, before STB granted exemption under 49 USCS § 10502 that allowed railroad company to construct and operate seven-mile rail line from mainline to property that was leased by company that planned to operate limestone quarry; STB and FWS conducted appropriate studies in response to concerns that construction of line would have adverse impact on golden-cheeked warbler and certain endangered karst invertebrates, and evidence supported their conclusion that there would be no discernible impact; assessments STB and FWS conducted were not invalid because they looked at impact of rail line and mining operations on 640 acres of 1,760-acre tract mining company leased that would be mined in "Phase One," and not entire tract. Medina County Envtl. Action Ass'n v Surface Transp. Bd. (2010, CA5) 70 Envt Rep Cas 1673, 40 ELR 20113.

Contrary to argument of petitioner environmental association, because respondent Surface Transportation Board found quarry could feasibly operate without rail, and trucks would be used if rail exemption were not granted, refusing to consider proposed development of entire tract as "interrelated action" did not render decision authorizing rail arbitrary and capricious under 5 USCS § 706(2)(A) and 16 USCS § 1536(a)(2). Medina County Envtl. Action Ass'n v Surface Transp. Bd. (2010, CA5) 602 F3d 687, amd on other grounds, petition den, motion den (2010, CA5) 70 Envt Rep Cas 1673, 40 ELR 20113.

Because all of survey evidence available to respondents, Surface Transportation Board and United States Fish and Wildlife Service, showed that there were no listed species in proposed rail and phase one area of development, any analysis of whether rail line and quarry activities would drive them out of that area was superfluous; thus, supplemental documents or reports as to what would happen when species' habitat was marginalized by "edge effects" were not appropriate for supplementing agency record under Fed. R. App. P. 16(a) or 5 USCS § 706 as "best scientific and commercial data" to be considered under 16 USCS § 1536(a)(2). Medina County Envtl. Action Ass'n v Surface Transp. Bd. (2010, CA5) 602 F3d 687, amd on other grounds, petition den, motion den (2010, CA5) 70 Envt Rep Cas 1673, 40 ELR 20113.

On challenge by petitioners, three environmental activist organizations and federally recognized tribal government to respondent Secretary of United States Department of Interior's (DOI) Outer Continental Shelf Lands Act Leasing Program in Alaska, because DOI's approval process was only in initial stages, its obligations under 16 USCS § 1536(a)(2) of Endangered Species Act had not yet arisen and it was not unreasonable for DOI to decide it would not engage in any consultation concerning Program's impacts on threatened and endangered species until process reached its later stages and claim was unripe. Ctr. for Biological Diversity v United States DOI (2009, App DC) 385 US App DC 257, 563 F3d 466, 68 Envt Rep Cas 1833, 39 ELR 20091, 170 OGR 234.

Department of Interior violated Endangered Species Act by failing to gather species and habitat data sufficient to make informed biological assessment of effects of oil and gas leasing in National Forest area, because such failure during agency planning process creates likelihood of future conflict as development proceeds and, in effect, gives development priority over endangered species. Bob Marshall Alliance v Watt (1986, DC Mont) 685 F Supp 1514, 16 ELR 20759, affd in part and revd in part on other grounds (1988, CA9 Mont) 852 F2d 1223, 18 ELR 21152, 103 OGR 525, cert den (1989) 489 US 1066, 103 L Ed 2d 810, 109 S Ct 1340.

Bureau of Reclamation violated 16 USCS § 1536 by failing to formally consult with National Marine Fisheries Service before implementing its annual operations plan for water diversion project, even though Bureau requested updated species list, released final biological assessment, and requested formal consultation with Service, where it had not rendered biological assessment or obtained biological opinion concerning likely effect on threatened coho salmon, or its critical habitat, of plan that had been in effect for almost one year. Pac. Coast Fed'n of Fishermen's Ass'ns v U.S. Bureau of Reclamation (2001, ND Cal) 138 F Supp 2d 1228, judgment entered (2001, ND Cal) 2001 US Dist LEXIS 7920, summary judgment gr, in part, summary judgment den, in part on ther grounds, remanded (2003, ND Cal) 2003 US Dist LEXIS 13745, revd, in part on other grounds, remanded (2005, CA9 Cal) 426 F3d 1082, 61 Envt Rep Cas 1417, 35 ELR 20215, injunction gr, on remand (2006, ND Cal) 2006 US Dist LEXIS 24893, amd on other grounds, reconsideration gr, motion gr (2006, ND Cal) 2006 US Dist LEXIS 36894 and affd (2007, CA9 Cal) 226 Fed Appx 715, 64 Envt Rep Cas 1330.

National Park Service did not violate 16 USCS § 1536(c)(1) where agency prepared draft environmental impact statement (DEIS) addressing plan for future use of former military base after learning from U.S. Fish and Wildlife Service and National Marine Fisheries Service that threatened or endangered species were within project area and DEIS contained elements of biological assessment, even though it could have contained more analysis on effect on salmon. City of Sausalito v O'Neill (2002, ND Cal) 2002 US Dist LEXIS 12457.

Fish and Wildlife Service's (FWS) motion for summary judgment in favor of Army Corps of Engineers, Fish and Wildlife Service (FWS), and National Marine Fisheries Service (NMFS) was granted on conservation center's claim that Corps failed to comply with § 7(a)(1) of Endangered Species Act, 16 USCS §§ 1531 et seq., codified at 16 USCS § 1536(a)(1), where FWS and NMFS found that Corps' projects were not likely to jeopardize listed species, and Corps was entitled to rely on this no jeopardy finding when carrying out its § 7(a)(1) duty to conserve listed species. San Francisco Baykeeper v United States Army Corps of Eng'rs (2002, ND Cal) 219 F Supp 2d 1001.

Fish and Wildlife Service's (FWS) motion for summary judgment in favor of Army Corps of Engineers, Fish and Wildlife Service (FWS), and National Marine Fisheries Service (NMFS) was granted on conservation center's claim that Corps failed to comply with § 7(a)(2) of Endangered Species Act, 16 USCS §§ 1531 et seq., codified at 16 USCS § 1536(a)(2), where, inter alia, neither FWS nor NMFS acted arbitrarily by relying on volume of ballast water discharge as determinative variable in their invasive species analyses, and where center did not show that FWS's and NMFS's decision was arbitrary and capricious. San Francisco Baykeeper v United States Army Corps of Eng'rs (2002, ND Cal) 219 F Supp 2d 1001.

During voluntary remand to U.S. Fish and Wildlife Service of its critical habitat designations of two endangered species, current designations remained in force during remand because 1) substantive defect in designations did not require vacatur, and risk of harm to designated species from vacating designations outweighed considerations favoring vacatur under Endangered Species Act's intent, as expressed in 16 USCS § 1531, due to potential prejudice from maintaining status quo, and 2) designations provided marginal benefit in reducing risk of harm to designated species from habitat conversion pursuant to 16 USCS § 1536(a)(2). NRDC v United States DOI (2002, CD Cal) 275 F Supp 2d 1136.

During voluntary remand to U.S. Fish and Wildlife Service (USFWS) of its critical habitat designations of two endangered species, 16 USCS §§ 1538 and 1539, California Natural Communities Conservation Programs, and special rule under 16 USCS § 1533(d) did not replace consultation for adverse modification under 16 USCS § 1536 by USFWS. NRDC v United States DOI (2002, CD Cal) 275 F Supp 2d 1136.

Plaintiffs' claims under Endangered Species Act failed as matter of law where Fish and Wildlife Service adequately discharged its duty to use "the best scientific and commercial data available" in formulating its opinion, 50 C.F.R. § 402.14(g)(8), with respect to each of four endangered fish species listed in plaintiffs' complaint by providing extensive data on species' general historical population, life cycle (including its reproductive behavior in rivers potentially affected), population dynamics, critical habitat, and current status and distribution, but where specific population estimates for these species were not available, best estimates were acceptable. Hammond v Norton (2005, DC Dist Col) 370 F Supp 2d 226, 60 Envt Rep Cas 1543, 35 ELR 20100, 161 OGR 672, motion gr, in part, motion den, in part on other grounds, motion den, remanded (2006, DC Dist Col) 448 F Supp 2d 114.

Having determined that endangered species was in area in which it was issuing limestone mining permits, defendant U.S. Army Corps of Engineers should have done Biological Assessment (BA) under 16 USCS § 1536(c)(1) and engaged in formal consultation under § 1536(b)(3)(A) and remand was appropriate because instead, Corps had not prepared or supervised preparation of BA, failed to initiate formal consultation with defendant U.S. Fish and Wildlife Service (FWS) on number of occasions, and relied on FWS's determination that wood stork would not be adversely affected by destruction of thousands of acres of wetlands. Sierra Club v Flowers (2006, SD Fla) 423 F Supp 2d 1273, 62 Envt Rep Cas 1265, 19 FLW Fed D 483, vacated, remanded (2008, CA11 Fla) 526 F3d 1353, 66 Envt Rep Cas 1904, 38 ELR 20113, 21 FLW Fed C 671, on remand, summary judgment gr, summary judgment Den on other grounds, judgment entered (2009, SD Fla) 709 F Supp 2d 1254, 39 ELR 20024, affd (2010, CA11 Fla) 362 Fed Appx 100, 40 ELR 20025.

Bureau of Reclamation acted properly under 16 USCS § 1536(a) in consulting with Fish and Wildlife Services (FWS) to determine whether All-American Canal Lining Project would affect Peirson's milk-vetch pursuant to 16 USCS § 1536(b)(3)(A) and in obtaining written statement from FWS pursuant to 16 USCS § 1536(b)(4). Consejo de Desarrollo Economico de Mexicali v United States (2006, DC Nev) 438 F Supp 2d 1207, subsequent app, remanded on other grounds (2007, CA9 Nev) 482 F3d 1157, 37 ELR 20078.

Two wildlife federations successfully enjoined federal agencies from proceeding with aquifer improvement project that required pumping water out of river in national wildlife refuge; under Endangered Species Act, agencies failed to adequately identify extent of critical habitat required by endangered ivory-billed woodpecker and, therefore, their decision to go ahead with project lacked rational basis for concluding that woodpecker's survival would not be jeopardized. Nat'l Wildlife Fed'n v Harvey (2006, ED Ark) 440 F Supp 2d 940, 63 Envt Rep Cas 1531.

Given potential indirect effects on listed species of U.S. Department of Agriculture's (USDA) 2005 Rule, combined with USDA's lack of documentation in support of their "no effect" determination, failure to consult and/or prepare any type of biological analysis in conjunction with 2005 Rule was arbitrary and capricious. Citizens for Better Forestry v United States Dep't of Agric. (2007, ND Cal) 481 F Supp 2d 1059.

Environmental assessment (EA) by U.S. Bureau of Land Management (BLM) and memorandum of informal consultation with U.S. Fish and Wildlife Service contained sufficient information to constitute biological assessment under 16 USCS § 1536(c)(1) with regard to opening wilderness area for oil and gas drilling; memorandum confirmed presence of threatened species and discussed characteristics of its habitat, and EA contemplated amount of land that each active well would affect, noted direct and indirect environmental effects that result from development, and specifically contemplated alternatives and mitigation measures to protect threatened species. Wilderness Soc'y v Wisely (2007, DC Colo) 524 F Supp 2d 1285, 37 ELR 20215.

While minimizing water quality changes was deemed necessary measure for tidewater goby, Fish & Wildlife Service (FWS) did not supply condition on implementing it, thus FWS submitted inadequate incidental take statement under 16 USCS § 1536(b)(4), (o)(2), and plaintiff water district was granted summary judgment as to permit to county and state agency to breach sand bar separating two lakes from Pacific Ocean issued by Army Corps of Engineers; in failing to include required term and condition, FWS has ignored plain language of Endangered Species Act and also removed Administrator of EPA's ability to revoke permit for noncompliance under 16 USCS § 1539(a)(2)(C), thus, Corps' reliance on FWS's legally inadequate incidental take statement was arbitrary and capricious under 5 USCS § 706(2)(A). Pac. Shores Subdivision Cal. Water Dist. v United States Army Corps of Eng'rs (2008, DC Dist Col) 538 F Supp 2d 242.

United States Forest Service's proposed amendment to management indicator species monitoring scheme did not violate Endangered Species Act, 16 USCS §§ 1531 et seq., where although biological assessment included legally invalid argument, as whole, assessment justified conclusion that amendment would have had no effect on listed species, and as result, Forest Service was not required to consult with United States Fish and Wildlife Service or National Marine Fisheries Service. Sierra Forest Legacy v United States Forest Serv. (2009, ND Cal) 652 F Supp 2d 1065.

17. Biological opinion

No exception exists in Endangered Species Act to effect that federal agency may be excused from completing comprehensive biological opinion before initiation of agency action if, in its judgment, there is insufficient information available to complete comprehensive opinion and it takes upon itself incremental-step consultation. Conner v Burford (1988, CA9 Mont) 848 F2d 1441, 18 ELR 21182, 100 OGR 84 (criticized in NRDC v United States Army Corps of Eng'rs (2001, SD Fla) 31 ELR 20880).

Issuance by Fish and Wildlife Service of Biological Opinion, as well as accompanying Incidental Take Statement, pursuant to 16 USCS § 1536(b) of Endangered Species Act (16 USCS §§ 1531 et seq.) are considered final agency actions for purposes of Administrative Procedure Act (5 USCS §§ 551 et seq.). Ariz. Cattle Growers' Ass'n v United States Fish & Wildlife, BLM (2001, CA9 Ariz) 273 F3d 1229, 2001 CDOS 10416, 2001 Daily Journal DAR 13005, 53 Envt Rep Cas 1904, 32 ELR 20392 (criticized in Defenders of Wildlife v Hall (2008, DC Mont) 565 F Supp 2d 1160, 68 Envt Rep Cas 1146).

In action that challenged National Marine Fisheries Service's (NMFS) biological opinion under Endangered Species Act, 16 USCS § 1536, district court did not exceed scope of its authority in issuing remand order; remand order's requirement that NMFS provide "failure report" to district court was reasonable combination of time limit and progress reports, which was appropriate under circumstances of case, and requiring consultation with states and Indian tribes constituted permissible procedural restriction rather than impermissible substantive restraint. Nat'l Wildlife Fedn v Nat'l Marine Fisheries Serv. (2008, CA9 Or) 524 F3d 917, 66 Envt Rep Cas 1449, 38 ELR 20099.

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 Service's 2006 biological opinion was not in accordance with law because it failed to follow proper procedures, which required using best available scientific data; while 2006 biological opinion's predictions did differ from those of some scientists who had studied Everglade Snail Kite, basic data was not in dispute and was taken into account by Service when it drafted opinion; that was all that Act required Service to do with best scientific and commercial data available. 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, 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 giving benefit of doubt to species; need to give species benefit of doubt could not stand alone as challenge to biological opinion. 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.

Because only 2001 biological opinion (B.O.) and 2002 B.O. had been issued when environmental groups filed their third amended complaint, their pleadings were interpreted as directed at 2001 B.O. and 2002 B.O, but after third amended complaint, U.S. Fish and Wildlife Service (FWS) issued 2003 B.O., which superseded both of them; FWS's issuance of 2003 B.O. mooted prayer for both injunctive and declaratory relief. Rio Grande Silvery Minnow v Bureau of Reclamation (2010, CA10 NM) 601 F3d 1096, 70 Envt Rep Cas 1577, 40 ELR 20128.

U.S. Fish and Wildlife Service's (FWS) biological opinion that city's proposed project would not have resulted in adverse modification or destruction of critical habitat for endangered and threatened species was neither arbitrary nor capricious because (1) FWS did not apply definition of "adverse modification" that ignored value of critical habitat for recovery of affected species; (2) FWS's determination that critical habitat would have been destroyed was not inconsistent with its finding of no adverse modification; (3) neither Endangered Species Act, 16 USCS §§ 1531 et seq., nor its implementing regulations required that FWS calculate rate of loss; and (4) applying proper definition of "adverse modification," FWS reasonably concluded that effects of proposed project would not have appreciably diminished value of species' critical habitat. Butte Envtl. Council v United States Army Corps of Eng'Rs (2010, CA9 Cal) 607 F3d 570, 40 ELR 20144, amd on other grounds (2010, CA9 Cal) 620 F3d 936 and reprinted as amd (2010, CA9 Cal) 71 Envt Rep Cas 1417.

Environmental organizations were entitled to summary judgment on their claim that U.S. Forest Service (USFS) acted arbitrarily and capriciously under 5 USCS § 706(2)(A) and failed to fulfill its duties under 16 USCS § 1536(a)(2) by issuing cattle grazing authorizations in national forest on biological opinion that USFS knew was based on inaccurate information. Or. Natural Desert Ass'n v Tidwell (2010, DC Or) 716 F Supp 2d 982.

United States Forest Service (USFS) was entitled to summary judgment on claim by grazing allotment permittees who alleged that USFS violated Endangered Species Act, 16 USCS §§ 1531 et seq., by arbitrarily limiting grazing in Malheur National Forest; USFS did not violate requirement under 16 USCS § 1536(a)(2) to utilize best available science because it did not ignore any relevant biological information in concluding that livestock grazing can adversely affect protected steelhead trout. Or. Natural Desert Ass'n v Tidwell (2010, DC Or) 716 F Supp 2d 982.

Environmental groups were entitled to summary judgment on their claim that National Marine Fisheries Service violated Endangered Species Act, 16 USCS §§ 1531 et seq., when it concluded that Army Corps of Engineers' continued operation of two dams on Yuba River would not jeopardize populations of threatened fish; biological opinion under 16 USCS § 1536 was arbitrary and capricious under 5 USCS § 706(2)(A) because it failed to provide rational connection between facts and conclusion that project would not adversely modify critical habitat. South Yuba River Citizens League v Nat'l Marine Fisheries Serv. (2010, ED Cal) 723 F Supp 2d 1247, injunction den, claim dismissed, as moot (2010, ED Cal) 2010 US Dist LEXIS 125403.

Environmental groups were entitled to summary judgment on their claim that National Marine Fisheries Service violated Endangered Species Act, 16 USCS §§ 1531 et seq., when it concluded that Army Corps of Engineers' continued operation of two dams on Yuba River would not jeopardize populations of threatened fish; biological opinion under 16 USCS § 1536 was arbitrary and capricious under 5 USCS § 706(2)(A) because it failed to provide rational connection between factual determination that project would perpetuate unmitigated stressors and conclusion that stressors would not jeopardize listed fish, failed to explain how species would be able to tolerate combination of project's impacts and adverse effects anticipated to result from proposed water diversion project, and failed to consider important aspects of problem. South Yuba River Citizens League v Nat'l Marine Fisheries Serv. (2010, ED Cal) 723 F Supp 2d 1247, injunction den, claim dismissed, as moot (2010, ED Cal) 2010 US Dist LEXIS 125403.

Ethics organization was entitled to summary judgment in its action against Fish and Wildlife Service (FWS) under Endangered Species Act, which arose from FWS's consultation with U.S. Forest Service with regard to use of chemical fire retardant to fight forest fires; FWS's biological opinion under 16 USCS § 1536 was arbitrary and capricious under 5 USCS § 706(2)(A) because it relied upon reasonable and prudent alternative that imposed no true restrictions on use of aerially-applied fire retardant and thus did not avoid jeopardy and destruction/adverse modification of critical habitat. Forest Serv. Emples. v United States Forest Serv. (2010, DC Mont) 726 F Supp 2d 1195.

Interior Board of Land Appeals does not have authority to review merits of biological opinions issued by Fish and Wildlife Service (FWS) under 16 USCS § 1536; although Board has no jurisdiction to set aside or "second-guess" biological opinion determinations made by FWS, Board may review party's objections as they relate to compliance or consistency with policy determinations. Southern Utah Wilderness Alliance (2000) 152 IBLA 216.

Department of Interior Office of Hearings and Appeals lacks authority to review merits of biological opinion issued by Fish and Wildlife Service under 16 USCS § 1536; administrative review authority delegated to Interior Board of Land Appeals encompasses decisions made by BLM, but does not include review of findings or decisions made by Fish and Wildlife Service, however, Board may look at biological opinion to determine for itself that opinion contains findings and conclusions on which BLM relies in its decision. Native Ecosystems Council (2004) 160 IBLA 288.

Department of Interior Office of Hearings and Appeals lacks authority to review merits of biological opinion issued by Fish and Wildlife Service under 16 USCS § 1536; administrative review authority delegated to Interior Board of Land Appeals encompasses decisions made by BLM, but does not include review of findings or decisions made by Fish and Wildlife Service, however, Board may look at biological opinion to determine for itself that opinion contains findings and conclusions on which BLM relies in its decision. Native Ecosystems Council (2004) 160 IBLA 288.