1 of 15 documents united states code service

18.--Contents of opinion

Agency is not required to adopt reasonable and prudent alternatives to agency proposals, as suggested in biological opinion issued by service having jurisdiction over relevant endangered species, but if Secretary of Interior deviates from them, he does so subject to risk that he has not satisfied standard of § 1536(a)(2). Tribal Village of Akutan v Hodel (1988, CA9 Alaska) 19 ELR 20071, 101 OGR 453, cert den (1989) 493 US 873, 107 L Ed 2d 157, 110 S Ct 204.

National Marine Fisheries Service fulfilled its responsibilities under Endangered Species Act when it supported its "no jeopardy" finding with ample data and analysis, sought recommendations of other organizations, and premised its measures on reasonable evaluation of available data. Greenpeace Action v Franklin (1992, CA9 Wash) 982 F2d 1342, 92 CDOS 10377, 92 Daily Journal DAR 17505, 35 Envt Rep Cas 2054, 23 ELR 20639, amd on other grounds, reh, en banc, den (1992, CA9 Wash) 93 CDOS 7436, reported in full (1992, CA9 Wash) 14 F3d 1324, 93 Daily Journal DAR 12665.

In action by environmental organizations challenging biological opinion issued by National Marine Fisheries Service (NMFS) pursuant to 16 USCS § 1536 district court's remand order to NMFS did not exceed scope of its authority; "failure report" requirement was reasonable combination of time limit and progress reports, and collaboration requirement was justified both as reasonable means to ensure that NMFS complied with Act's mandate that agencies use best scientific and commercial date available in their decision-making under 16 USCS § 1536(a)(2) and as reasonable procedural restriction given history of litigation. Nat'l Wildlife Fed'n v Nat'l Marine Fisheries Serv. (2007, CA9 Or) 481 F3d 1224, 64 Envt Rep Cas 1353, 37 ELR 20079.

"Incidental taking" statement need not be included in biological opinions on interim management plan of National Park Service that provides for continued operation of certain campground in national park that is in habitat of grizzly bear, which is endangered species, under 16 USCS § 1536(b)(4), where no incidental takings of bears are anticipated as result of plan. National Wildlife Federation v National Park Service (1987, DC Wyo) 669 F Supp 384.

Because defendant Fish & Wildlife Service's biological opinion was aimed at conservation, it satisfied 16 USCS § 1536(a)(1)'s requirements and thus, plaintiff Indian Tribe's challenge under Endangered Species Act failed on summary judgment. Miccosukee Tribe of Indians of Fla. v United States (2007, SD Fla) 528 F Supp 2d 1317, affd in part and revd in part on other grounds, remanded (2009, CA11 Fla) 566 F3d 1257, 68 Envt Rep Cas 1929, 39 ELR 20097, 21 FLW Fed C 1780.

Examination of statutory language under 16 USCS § 1536 of Endangered Species Act, consultation regulations, and Consultation Handbook, coupled with legislative history, establishes that no express language mandates that first three definitional elements of Reasonable and Prudent Alternative under 50 USCS § 402.02 be discussed on face of Biological Opinion (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.

19.----No-jeopardy finding

National Marine Fisheries Service's (NMFS) clear findings prior to infusion of political pressures from EPA during review process indicated that no-jeopardy finding was unwarranted and unsupported by evidence; accordingly, environmental organization's motion for summary judgment on tenth claim for relief was granted, and NMFS was ordered to withdraw its biological opinion and reinitiate consultation and issue new opinion. Northwest Envtl. Advocates v United States EPA (2003, DC Or) 268 F Supp 2d 1255.

Fish and Wildlife Service's no jeopardy finding in biological opinion relating to spikedace and loach minnow was proper as it considered relevant factors and concluded that reductions in cattle numbers and seasons of use, and removal of cattle from main stem rivers prevented jeopardizing continued existence of fish under 16 USCS § 1536(a)(2); further, decision complied with Administrative Procedure Act, 5 USCS §§ 701 et seq., where determination was not error of judgment and agency was entitled to deference as to its interpretation of its regulations on issue under 50 C.F.R. § 402.02. Forest Guardians v Veneman (2005, DC Ariz) 392 F Supp 2d 1082.

In action by plaintiff environmental groups, Biological Opinion issued under § 7 of Endangered Species Act, 16 USCS § 1536(a)(2), based upon expert data analysis of experiment conducted by defendant National Marine Fisheries Service (NMFS), was not arbitrary and capricious; with respect to no jeopardy finding concerning loggerhead sea turtles, NMFS relied upon abundance of reliable information, including data demonstrating that interactions with loggerheads were typically in juvenile age class rather than breeding females, that nesting subpopulations were not in decline, and when compared against one particular fishing hook, another hook actually improved post-mortem survival rates because it was generally not swallowed and, therefore, more of other hooks could be removed without fatality. 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.

20.----Incidental take statement

Incidental Take Statement (16 USCS § 1536(b)(4)) must be predicated on finding of incidental take. 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).

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).

Definitions of "taking" in 16 USCS §§ 1536 and 1538 are identical in meaning and application. 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).

Absent rare circumstances, it is arbitrary and capricious to issue Incidental Take Statement when Fish and Wildlife Service has no rational basis to conclude that take will occur incident to otherwise lawful activity. 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).

Fish and Wildlife Service is not required to provide Incidental Take Statement whenever it issues Biological Opinion. 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).

Definitions of "taking" in 16 USCS §§ 1536 and 1538 are identical in meaning and application. 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).

Absent rare circumstances, it is arbitrary and capricious to issue Incidental Take Statement when Fish and Wildlife Service has no rational basis to conclude that take will occur incident to otherwise lawful activity. 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).

No matter what kind of limitation U.S. Fish & Wildlife Service (FWS) chooses to place in Incidental Take Statement, it cannot be so indeterminate as to prevent Take Statement from contributing to monitoring of incidental take by eliminating its trigger function. Or. Natural Res. Council v Allen (2007, CA9 Or) 476 F3d 1031, 64 Envt Rep Cas 1033, 37 ELR 20048.

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 successfully argued that Services' incidental take statement was deficient because it improperly quantified incidental take in terms of habitat markers and failed to provide meaningful trigger for re-consultation; incident take statement had to be modified as it did not contain adequate trigger for re-consultation, and that trigger had to be expressed in population terms unless it was impractical to do so. 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.

Defendant federal officials did not show that it would have been impractical to have included Incidental Take Statement in biological opinion specifying amount of extent of incidental take under 16 USCS § 1536(a)(2), 50 C.F.R. § 402.14(i)(1), when approving United States Navy's peacetime use of low frequency sonar system. Nat'l Res. Def. Council v Evans (2002, ND Cal) 232 F Supp 2d 1003, summary judgment gr, in part, summary judgment den, in part,, injunction gr (2003, ND Cal) 364 F Supp 2d 1083, motion to strike den, in part, motion to strike gr, in part (2003, ND Cal) 2003 US Dist LEXIS 20394 and app dismd (2006, CA9 Cal) 457 F3d 904.

Conservation groups were entitled to summary judgment in their action against U.S. Fish and Wildlife Service (FWS), National Marine Fisheries Service (NMFS), and U.S. Forest Service (USFS), for alleged violations of agencies' responsibilities under Endangered Species Act (ESA), 16 USCS §§ 1531 et seq.; FWS and NMFS did not act in accordance with law for purposes of 5 USCS § 706(2)(A) when they failed to issue incidental take statements with their biological opinions under 16 USCS § 1536(b)(4) on USFS's revised forest plans for four southern California national forests under 16 USCS § 1604 of National Forest Management Act. Ctr. for Biological Diversity v United States Fish & Wildlife Serv. (2009, ND Cal) 623 F Supp 2d 1044, 70 Envt Rep Cas 1279.

Federal agencies were not entitled to Fed. R. Civ. P. 12(b)(1) dismissal of claim by environmental groups that federal agency was liable for violation of Endangered Species Act's "take" provision under 16 USCS § 1538 based on its failure to comply with terms of Incidental Take Statement (ITS) that was issued pursuant to 16 USCS § 1536(b)(4); notwithstanding 16 USCS § 1540(g)'s implied exclusion of suits alleging permit violations, groups' allegation of violation of § 1538(a) was not precluded by fact that it also turned on alleged violation of ITS, which was in some sense permit. South Yuba River Citizens League v Nat'l Marine Fisheries Serv. (2009, ED Cal) 629 F Supp 2d 1123, 70 Envt Rep Cas 1054.

Environmental group was entitled to summary judgment on its claim that forest projects caused unauthorized "take" of grizzly bears in violation of 16 USCS § 1538(a); take was occurring in areas outside bear recovery zone that was subject to incidental take statement under 15 USCS § 1536(b) and, therefore, take could not be exempted under § 1536(o)(2). Alliance for Wild Rockies v Bradford (2010, DC Mont) 720 F Supp 2d 1193.

In action by environmental groups alleging violation of Endangered Species Act, 16 USCS §§ 1531 et seq., by National Marine Fisheries Service and Army Corps of Engineers in relation to operation of two dams, federal agencies were not entitled to summary judgment on claim that Corps caused "take" under 16 USCS § 1538 without protection of Incidental Take Statement (ITS) under 16 USCS § 1536(b)(4); genuine disputes remained as to whether Corps violated terms and conditions imposed by ITS. 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.

In action by environmental groups alleging violation of Endangered Species Act, 16 USCS §§ 1531 et seq., by National Marine Fisheries Service and Army Corps of Engineers in relation to operation of two dams, federal agencies were entitled to summary judgment on claim that Corps caused "take" under 16 USCS § 1538 without protection of Incidental Take Statement (ITS) under 16 USCS § 1536(b)(4); groups offered no authority to support their proposition that ITS might be void ab initio. 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 and National Marine Fisheries Service under Endangered Species Act where agencies failed to include incidental take statements (ITS) under 16 USCS § 1536 in their biological opinions related to U.S. Forest Service's use of chemical fire retardants to fight forest fires; agencies found jeopardy and/or adverse modification and issued reasonable and prudent alternatives, and agencies could not justify their failure to issue ITSs by promising to evaluate all actual uses of fire retardant during emergency consultation. Forest Serv. Emples. v United States Forest Serv. (2010, DC Mont) 726 F Supp 2d 1195.

21.--Forest management

It matters not if there is worthwhile and possibly suitable habitat outside of designated "critical habitat;" what matters to Congress, and what must matter to agency, is to protect against loss or degradation of designated "critical habitat" itself; thus, Fish and Wildlife Service's finding that loss of critical habitat was not "adverse modification" because of existence of suitable external habitat was arbitrary and capricious and was contrary to law; therefore, critical habitat analysis in six biological opinions was fatally flawed because it impermissibly substituted late successional reserves in Northwest Forest Plan for critical habitat and, on remand, trial court was directed to grant summary judgment to environmental organizations on critical habitat inquiry. 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.

Fish and Wildlife Service's biological opinion on forest management plan pursuant to Endangered Species Act (16 USCS §§ 1531 et seq.) (ESA) was adequate, where Plan was broad and programmatic in nature, did not authorize site specific development and envisioned future ESA evaluation at development stage, and contained standards concerning factors necessary for protection of endangered species, since opinion properly focused on those standards, and more specific evaluation proposed of impacts is impossible since site specific activities have not yet been proposed. Swan View Coalition v Turner (1992, DC Mont) 824 F Supp 923, 36 Envt Rep Cas 1643, 24 ELR 20318, remanded (1998, CA9 Mont) 1998 US App LEXIS 11757.

In making determinations that federal timber sales would not jeopardize survival of trout and salmon species, National Marine Fisheries Service acted in arbitrary and capricious manner in measuring aquatic conservation strategy compliance only at watershed level, rather than at project or site level, in failing to evaluate short term effects, and failing to fully incorporate watershed recommendations into its strategy, where employing long-term/watershed approach in making jeopardy determinations, Service virtually guaranteed that no timber sale ever would be found to jeopardize continued existence of fish species, and by failing to require action agencies to rely on and adequately incorporate watershed analysis into their biological opinions, as required by 16 USCS § 1536, Service allowed agencies to ignore best scientific information available. Pacific Coast Fed'n of Fishermen's Ass'n v National Marine Fisheries Serv. (1999, WD Wash) 71 F Supp 2d 1063, 49 Envt Rep Cas 1527.

Forest Service was obligated to insure that timber sales were not likely to jeopardize continued existence of endangered species, bull trout, under 16 USCS § 1536(a)(2), and district court enjoined timber sale pending further development of biological opinion by U.S. Fish and Wildlife Service. Cascadia Wildlands Project v United States Fish & Wildlife Serv. (2002, DC Or) 219 F Supp 2d 1142, 33 ELR 20020 (criticized in Sierra Forest Legacy v United States Forest Serv. (2009, ND Cal) 598 F Supp 2d 1058).

Environmental group was entitled to summary judgment on its claim that U.S. Forest Service (USFS) violated 16 USCS § 1536, in concluding that forest projects were not likely to adversely affect grizzly bears; conclusion that helicopter logging would not adversely affect bears was arbitrary and capricious under 5 USCS § 706(2)(A) because USFS did not articulate rational connection between nature and extent of helicopter logging and determination that logging was not likely to adversely affect grizzly bears. Alliance for Wild Rockies v Bradford (2010, DC Mont) 720 F Supp 2d 1193.

22.--Grazing rights

Where interest groups challenged United States Forest Service's (Service) cattle grazing reduction scheme for Apache-Sitgreaves National Forest, groups' claim that 16 USCS § 1536 was violated was moot because Service issued clarified decision notice stating that it would issue temporary grazing permits only where consistent with policy and purpose of temporary grazing permits set forth in governing regulations, thus curing prior inappropriate decision notice. Forest Guardians v United States Forest Serv. (2003, CA9 Ariz) 329 F3d 1089, 2003 CDOS 4398, 2003 Daily Journal DAR 5658, 33 ELR 20205.

Bureau of Land Management (BLM) failed to comply with 16 USCS § 1536 in adopting amended regulations that decreased public involvement in public lands management, limited BLM's enforcement powers, and increased ranchers' ownership rights to improvements and water on public lands; BLM did not consult with Fish and Wildlife Service despite evidence that listed species and their habitats might be affected. Western Watersheds Project v Kraayenbrink (2010, CA9 Idaho) 620 F3d 1187, 71 Envt Rep Cas 1449, 40 ELR 20235.

Environmental organizations were entitled to summary judgment on their claim that U.S. Forest Service (USFS) violated Endangered Species Act, 16 USCS §§ 1531 et seq., in its management of grazing on public lands supporting threatened steelhead trout in Malheur National Forest; USFS failed to reinitiate consultation under 16 USCS § 1536 following exceedance of its incidental take statement during two grazing seasons, and USFS violated § 1536(d) when it authorized grazing in third season absent § 1536(d) letters on five allotments. 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 act arbitrarily and capriciously under 5 USCS § 706(2)(A) in choosing bank alteration standard as habitat proxy for "take" of protected steelhead trout for purposes of 16 USCS §§ 1536(b)(4) and 1538. Or. Natural Desert Ass'n v Tidwell (2010, DC Or) 716 F Supp 2d 982.

Issuance of Fish and Wildlife Service biological opinion pursuant to Endangered Species Act (16 USCS § 1536) does not deprive ALJ or Interior Board of Land Appeals of jurisdiction to act upon grazing appeal filed under Taylor Grazing Act (43 USCS §§ 315 et seq.) with respect to issues not within scope of biological opinion. Blake, et al. v Bureau of Land Management (2002) 156 IBLA 280.

Issuance of Fish and Wildlife Service biological opinion pursuant to Endangered Species Act (16 USCS § 1536) does not deprive ALJ or Interior Board of Land Appeals of jurisdiction to act upon grazing appeal filed under Taylor Grazing Act (43 USCS §§ 315 et seq.) with respect to issues not within scope of biological opinion. Blake, et al. v Bureau of Land Management (2002) 156 IBLA 280.

23.--Hydropower development

District court properly ruled that National Marine Fisheries Service's (NMFS) 2004 Biological Opinion, which found that proposed operations of Federal Columbia River Power System dams for 2004 through 2014 would not adversely modify critical habitat of 13 listed endangered salmonoid species, was arbitrary and capricious under 5 USCS § 706(2)(A); NMFS's critical habitat determination under 16 USCS § 1536, did not adequately consider proposed action's short-term negative effects in context of affected species' life cycles and migration patterns, relied on uncertain long-term improvements to critical habitat to offset certain short-term degradation, and concluded that species' critical habitat was sufficient for recovery without adequate information to make that determination. Nat'l Wildlife Fed'n v Nat'l Marine Fisheries Serv. (2007, CA9 Or) 481 F3d 1224, 64 Envt Rep Cas 1353, 37 ELR 20079.

Federal Energy Regulatory Commission (FERC) did not act arbitrarily or capriciously in relying on biological opinions (BiOps) of U.S. Fish and Wildlife Service in relation to hydroelectric project's effect on Endangered Species Act listed species; licensee, in challenging FERC's reliance on BiOps, did not present new information that called into question BiOps' factual conclusions; moreover, BiOps were not legally flawed or unsupported by evidence. City of Tacoma v FERC (2006, App DC) 373 US App DC 117, 460 F3d 53, 36 ELR 20173.

Federal agencies' 1993 biological opinion on hydropower operations is arbitrary and capricious and is remanded for reinitiation of consultations with tribal and state experts, because National Marine Fisheries Service's process for determining how action agencies are doing in their efforts to save listed salmon species looks too much at what establishment is capable of handling with minimal disruption and not enough at what can be done to protect species from jeopardy, and is not in accordance with meaning and underlying purposes of 16 USCS § 1536(a)(2). Idaho Dep't of Fish & Game v National Marine Fisheries Serv. (1994, DC Or) 850 F Supp 886, 38 Envt Rep Cas 1842, 24 ELR 21384, remanded (1995, CA9 Or) 56 F3d 1071, 95 CDOS 4049, 40 Envt Rep Cas 2005 and (Abrogated as stated in Nat'l Wildlife Fedn v Nat'l Marine Fisheries Serv. (2008, CA9 Or) 524 F3d 917, 66 Envt Rep Cas 1449, 38 ELR 20099).

Bureau of Reclamation was entitled to summary judgment on environmental organization's claim that Bureau's environmental assessment (EA) involving changes to modified low fluctuating flow (MLFF) operation of Glen Canyon Dam on Colorado River violated 42 USCS § 4332 because EA properly considered appropriate and reasonable alternatives and did not amount to clear error of judgment for purposes of 5 USCS § 706(2)(A); however, environmental organization was entitled to summary judgment on its claim that Fish and Wildlife Service's (FWS) related biological opinion violated 16 USCS § 1536 of Endangered Species Act because opinion lacked reasoned basis for FWS's new conclusion that MLFF did not destroy or adversely modify critical habitat of endangered humpback chub. Grand Canyon Trust v United States Bureau of Reclamation (2009, DC Ariz) 623 F Supp 2d 1015, 39 ELR 20117.