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JEAN E. WILLIAMS Deputy Assistant Attorney General Environment & Natural Resources Division U.S. Department of Justice ANDREW A. SMITH (NM Bar 8341) Senior Trial Attorney Natural Resources Section c/o United States Attorney’s Office 201 Third Street, N.W., Suite 900 P.O. Box 607 Albuquerque, New Mexico 87103 Phone: (505) 224-1468 [email protected] LILA C. JONES (NM Bar 148098) Trial Attorney Natural Resources Section 601 D Street, NW Washington, D.C. 20004 Phone: (202) 514-9859 (Jones) [email protected] Attorneys for Federal Defendants
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
Center for Biological Diversity,
Plaintiff, v. U.S. Fish and Wildlife Service, et al.,
Federal Defendants, Rosemont Copper Co.,
Intervenor-Defendant.
) ) ) ) ) ) ) ) ) ) ) ) ) )
No. 4:17-cv-00475-TUC-JAS (Lead) No. 4:17-cv-00576-TUC-JAS (C) No. 4:18-cv-00189-TUC-JAS (C) FEDERAL DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF CBD’S CLAIMS IN No. 4:17-cv-00475-TUC-JAS
Case 4:17-cv-00475-JAS Document 157 Filed 12/14/18 Page 1 of 29
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TABLE OF CONTENTS
INTRODUCTION ............................................................................................................... 1
ARGUMENT ...................................................................................................................... 1
I. FWS’S BIOLOGICAL OPINIONS COMPLY WITH THE ESA ................ 1
A. The Rosemont Project Is Not Likely To Destroy Or Adversely Modify Jaguar Critical Habitat .......................................................... 1
1. FWS Applied A Proper Standard For Determining Impacts To Jaguar Critical Habitat ......................................... 1
2. FWS Properly Weighed Jaguar Critical Habitat In Assessing Impacts From The Rosemont Project .................... 4
B. FWS Was Not Required To Establish A “Tipping Point” For The Northern Mexican Gartersnake Or Any Other Species .............. 6
C. The Required Mitigation Measures For The Rosemont Project Are Not “Uncertain” .......................................................................... 9
D. FWS Considered All Relevant Impacts ........................................... 10
1. CBD Misrepresents FWS’s Groundwater Drawdown Analyses ................................................................................ 10
2. FWS Considered Possible Impacts From Mining Contaminants ........................................................................ 12
E. The Incidental Take Statement Relies On A Proper Take Surrogate .......................................................................................... 14
II. FWS PROPERLY DEFINED “DESTRUCTION OR ADVERSE MODIFICATION” OF CRITICAL HABITAT .......................................... 16
III. FWS HAS NOT REVISED JAGUAR CRITICAL HABITAT ................... 19
IV. THE FOREST SERVICE LAWFULLY RELIED ON FWS’S BIOPS ...... 20
V. CBD CONTINUES TO FAIL TO SHOW THAT ANY RELIEF IS APPROPRIATE .......................................................................................... 21
CONCLUSION ................................................................................................................. 21
Case 4:17-cv-00475-JAS Document 157 Filed 12/14/18 Page 2 of 29
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TABLE OF AUTHORITIES
Cases
Alaska Oil & Gas Ass’n v. Jewell, 815 F.3d 544 (9th Cir. 2016) ......................................................................................... 16
Butte Envtl. Council v. U.S. Army Corps of Eng’rs, 620 F.3d 936 (9th Cir. 2010) ............................................................................. 17, 18, 20
Chevron, U.S.A. v. Nat. Res. Def. Council, 467 U.S. 837 (1984)....................................................................................................... 17
Consol. Delta Smelt Cases, 717 F. Supp. 2d 1021 (E.D. Cal. 2010) ......................................................................... 12
Ctr. for Biological Diversity v. Salazar, 804 F. Supp. 2d 987 (D. Ariz. 2011) ............................................................................... 6
Ctr. for Biological Diversity v. Zinke, 868 F.3d 1054 (9th Cir. 2017) ......................................................................................... 4
Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059 (9th Cir. 2004) ....................................................................................... 17
Greenpeace Action v. Franklin, 14 F.3d 1324 (9th Cir. 1992) ......................................................................................... 15
In re Polar Bear Endangered Species Act Listing and 4(d) Rule Lit., 709 F.3d 1 (D.C. Cir. 2013) ............................................................................................. 3
In re Polar Bear Endangered Species Act Listing and 4(d) Rule Lit., 794 F. Supp. 2d 65 (D.D.C. 2011) ................................................................................... 3
Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) ....................................................................................... 1, 6
Marbled Murrelet v. Babbitt, 83 F.3d 1060 (9th Cir. 1996) ......................................................................................... 21
Nat’l Wildlife Fed’n v. Babbitt, 128 F. Supp. 2d 1274 (E.D. Cal. 2000) ......................................................................... 16
Nat’l Wildlife Fed’n v. Burlington N.R.R., Inc., 23 F.3d 1508 (9th Cir. 1994) ......................................................................................... 21
Nw. Ecosystem All. v. U.S. Fish and Wildlife Serv., 475 F.3d 1136 (9th Cir. 2007) ......................................................................................... 4
Case 4:17-cv-00475-JAS Document 157 Filed 12/14/18 Page 3 of 29
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Oceana v. Nat’l Marine Fisheries Serv., No. 3:14-cv-00253-TMB, 2015 WL 12697739 (D. Alaska Sept. 16, 2015) ................... 6
Pub. Employees for Envtl. Responsibility v. Hopper, 827 F.3d 1077 (D.C. Cir. 2016) ..................................................................................... 15
Reiter v. Sonotone Corp., 442 U.S. 330 (1979)....................................................................................................... 16
Rybachek v. EPA, 904 F.2d 1276 (9th Cir. 1990) ....................................................................................... 13
San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971 (9th Cir. 2014) ......................................................................................... 12
Save Our Cabinets v. U.S. Fish & Wildlife Serv., 255 F. Supp. 3d 1035 (D. Mont. 2017) .......................................................................... 15
Sw Ctr. for Biological Diversity v. U.S. Forest Serv., No. CV 97-666, 2001 WL 36657004 (D. Ariz. Mar. 30, 2001) .................................... 21
Sw. Ctr. for Biological Diversity v. Babbitt, 215 F.3d 58 (D.C. Cir. 2000) ......................................................................................... 12
Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443 (9th Cir. 1996) ....................................................................................... 13
Swan View Coal. v. Barbouletos, No. CV 05-64-M-DWM, 2008 WL 5682092 (D. Mont. Mar. 31, 2008) ...................... 15
United States v. Woods, 571 U.S. 31 (2013)......................................................................................................... 16
Statutes
16 U.S.C. § 1536(a)(2) ...................................................................................... 1, 12, 18, 20
16 U.S.C. § 1536(b)(3)(A) ................................................................................................ 17
Regulations
50 C.F.R. § 402.02....................................................................................................... 17, 20
50 C.F.R. § 402.14(g)(8) ................................................................................................... 15
79 Fed. Reg. 38,678 (July 8, 2014) ................................................................................. 7, 8
Case 4:17-cv-00475-JAS Document 157 Filed 12/14/18 Page 4 of 29
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TABLE OF ACRONYMS
ADEQ Arizona Department of Environmental Quality
APA Administrative Procedure Act
BA biological assessment
BiOp biological opinion
CBD Plaintiff Center for Biological Diversity
CBD Memo. CBD’s Summary Judgment Memorandum, ECF No. 107
CBD Resp. CBD’s Summary Judgment Response Brief, ECF No. 141
DEIS draft environmental impact statement
EIS environmental impact statement
EPA Environmental Protection Agency
ESA Endangered Species Act
Feds. Memo. Federal Defendants’ Summary Judgment Memorandum, ECF No. 121
FEIS final environmental impact statement
FWS U.S. Fish and Wildlife Service
NEPA National Environmental Policy Act
ROD record of decision
SBA supplemental biological assessment
SIR supplemental information report
Case 4:17-cv-00475-JAS Document 157 Filed 12/14/18 Page 5 of 29
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NOTE ON ADMINISTRATIVE RECORD CITATIONS
Federal Defendants have lodged multiple Administrative Records corresponding
to the various agency actions challenged in these consolidated cases. For this brief,
documents cited from the U.S. Fish and Wildlife Service (“FWS”) February 27, 2018
Administrative Record for the 2016 Biological Opinion are in the form “FWSxxxxxx,”
where “xxxxxx” is the unique six-digit Bates page number in the lower right hand corner
of each page. Because there are four folders in the FWS Administrative Record, pages
from documents in the “FWS_Email” folder are denoted with an “(E)” after the citation,
and pages from documents in the “FWS_References” folder are denoted with an “(R)”
after the citation. If there is no denotation after the citation, which is most common, the
document will be found in the “FWS_Documents” folder. Each folder contains an index
of documents in that folder, with a tab of the documents ordered by Bates page number
ranges for ease of location, with hyperlinks that open the document once the Bates page
number is found in the index.
Documents cited from the Forest Service March 16, 2018 (Corrected)
Administrative Record are in the form “FSxxxxxxx,” where “FS” signifies the Forest
Service Administrative Record and “xxxxxxx” is the unique seven-digit Bates page
number in the lower right hand corner of each page. The Forest Service Administrative
Record includes a locator tool into which the seven-digit Bates page number can be
entered to pull up the cited document. Additional instructions for using the Forest
Service Administrative Record are provided with that Record.
Documents cited from the FWS April 5, 2018 (Corrected) Administrative Record
for the Revised Adverse Modification Rule are in the form “AMRxxxxx,” where “AMR”
signifies the FWS “Adverse Modification Rule” Administrative Record and “xxxxx” is
the unique five-digit Bates page number in the lower right hand corner of each page. The
“Adverse Modification Rule” Administrative Record includes an index ordered by Bates
page number and document hyperlinks for ease of access.
Case 4:17-cv-00475-JAS Document 157 Filed 12/14/18 Page 6 of 29
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INTRODUCTION
Plaintiff Center for Biological Diversity’s (“CBD”) November 16, 2018 summary
judgment response brief, ECF No. 141 (“CBD Resp.”), relies on mischaracterizations of
Federal Defendants’ opening brief and of the law applicable to CBD’s challenges to the
U.S. Fish and Wildlife Service’s (“FWS”) 2013 and 2016 Biological Opinions (“BiOps”),
addressing impacts from the Rosemont Project under Section 7 of the Endangered
Species Act (“ESA”), 16 U.S.C. § 1536. And, as with CBD’s opening brief, CBD’s
response brief arguments focus on disfavored challenges to the expert agency’s
methodology and scientific determinations. See, e.g., Lands Council v. McNair, 537 F.3d
981, 993 (9th Cir. 2008) (en banc). As addressed in Federal Defendant’s October 12,
2018 opening brief, ECF No. 121 (“Feds. Memo.”), and further below, CBD’s claims are
without merit, and summary judgment should be entered in Federal Defendants’ favor.
ARGUMENT I. FWS’S BIOLOGICAL OPINIONS COMPLY WITH THE ESA
A. The Rosemont Project Is Not Likely To Destroy Or Adversely Modify Jaguar Critical Habitat
1. FWS Applied A Proper Standard For Determining Impacts To
Jaguar Critical Habitat
FWS properly considered the definition of “likely” from a dictionary commonly
used by the Supreme Court and Ninth Circuit in assessing whether potential impacts from
the Rosemont Project were “likely” to destroy or adversely modify jaguar critical habitat
under ESA Section 7, 16 U.S.C. § 1536(a)(2). Feds. Memo. at 8-10. CBD repeats its
opening arguments in response, adding that FWS cannot rely on the first definition of a
term from a dictionary relied on by the Supreme Court and the Ninth Circuit, but must
conduct some sort of analysis of multiple dictionaries to determine what definition of
“likely” is “most common.” CBD Resp. at 3. CBD fails to cite a single case requiring a
federal agency (as opposed to a court conducting judicial review), in analysis of a
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particular project, to conduct such an exhaustive review of all terms that the agency must
use during its decision-making process. Nothing in the APA or ESA requires such an
approach.
Moreover, CBD fails to show that FWS’s determination of impacts to jaguar
critical habitat would have reached a different result had FWS looked to CBD’s favored
“probable” or “more likely than not” definition of “likely.” In reviewing the analyses in
the earlier internal draft documents assessing impacts to jaguar critical habitat, FWS’s
Field Supervisor did not fault his staff for using a different definition of “likely.”
FWS047647-58. Instead, the Field Supervisor found his staff’s assessments that
connectivity between Unit 3 and Subunit 4b would be severed to be “speculative” and
“possible” but “not likely,” FWS047651, -54; found the assertion that any such severance
would make Subunits 4a and 4b inaccessible to jaguars or preclude connectivity with
Mexico to be “very unlikely,” not “sufficiently supported,” “far too speculative,” and
“factually incorrect,” FWS047652-53, -54; and found it “improbable” that the Rosemont
Project would hinder jaguar recovery, FWS047654. In other words, the Field Supervisor
found significant flaws in his staff’s preliminary scientific analyses and proposed
conclusions, not in any definition of “likely” that the staff may have been using.
Indeed, while CBD contends that the Field Supervisor (and final BiOp) reached a
different determination of impacts to jaguar critical habitat because he used a different
definition of “likely” than his staff, there is no evidence to support that contention.
Nowhere does staff provide a definition of “probable” or “more likely than not” for
“likely” to adversely modify jaguar critical habitat, as CBD falsely asserts. See CBD
Resp. at 4.1 Instead, the Field Supervisor provided a detailed rationale, supported by
scientific analysis and information from the record, faulting his staff for making
unfounded (“speculative”) scientific assumptions and statements about “possible”
1 CBD even assert that within the 2016 BiOp FWS applied a different (“probable”) definition for species other than the jaguar. CBD Resp. at 4. The 2016 BiOp does not present any other definition of “likely” than what was set forth for the jaguar.
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impacts that would fall nowhere near adversely modifying critical habitat under any
definition of “likely.”
CBD cites no case holding that FWS was required to use any particular definition
for “likely,” let alone in the context of an ESA Section 7 consultation. On the contrary,
the cases on which CBD relies are ESA Section 4 listing cases, in which “likely” is used
in a different context, and the courts invariably upheld FWS’s assessment, focusing on
the sufficiency of the agency’s analysis rather than any precise threshold for when
something was “likely.” For instance, in the polar bear Section 4 listing litigation, the
district court upheld FWS’s analysis, even though “[t]he record reveals that FWS used
the terms ‘likely’ and ‘very likely’ interchangeably throughout its Listing Rule.” In re
Polar Bear Endangered Species Act Listing and 4(d) Rule Lit., 794 F. Supp. 2d 65, 92
(D.D.C. 2011), aff’d 709 F.3d 1 (D.C. Cir. 2013). And, in affirming that decision, the
D.C. Circuit emphasized that FWS was not required to adopt any specialized definition of
“likely,” as long as its scientific analysis was reasonable. 709 F.3d at 15.
As in the Polar Bear litigation, FWS’s reasoning for determining that the impacts
of the Rosemont Project are not likely to destroy or adversely modify jaguar critical
habitat was rational, supported by the best available scientific information and FWS’s
expert opinion, and did not turn on any definition of “likely.” CBD’s argument on this
point must be rejected.
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2. FWS Properly Weighed Jaguar Critical Habitat In Assessing Impacts From The Rosemont Project
As in its opening brief, CBD continues to improperly rely almost exclusively on
internal FWS preliminary draft documents as agency determinations that FWS was
required to explain or distinguish in reaching its formal determinations in the 2016 BiOp.
CBD Resp. at 6-10; id. at 9 (asserting that “FWS determined in multiple draft BiOps that
the Mine would likely result in the loss of Subunit 4b, constituting adverse
modification”). As Federal Defendants have explained, this is not the law, and CBD is
inviting this Court to commit clear error by asking it to compare the draft documents with
the final 2016 BiOp to determine which rationale the Court finds more reasonable. See
Feds. Memo. at 6-8.
CBD argues that the Ninth Circuit in Center for Biological Diversity v. Zinke, 868
F.3d 1054, 1060-61 (9th Cir. 2017), allowed for such a comparison, CBD Resp. at 6, but
the Zinke court did no such thing. Instead, in Zinke the Ninth Circuit noted the difference
in conclusions between the draft and final documents, but examined only the rationale in
the final document to determine whether it was reasonable. Id. at 1062. The Zinke Court
made no comparison of the rationales between the draft and final documents, as CBD
attempts to do here, but instead “‘defer[red] to the agency’s interpretation of complex
scientific data’” in upholding FWS’s final determination. Id. at 1061 (quoting Nw.
Ecosystem All. v. U.S. Fish and Wildlife Serv., 475 F.3d 1136, 1150 (9th Cir. 2007)).
FWS’s analysis and determination of impacts to jaguar critical habitat easily pass
muster under the appropriate deferential standard for judicial review set forth in Zinke. In
his detailed memorandum, the Field Supervisor explained his rationale for determining
that the Rosemont Project would not destroy or adversely modify jaguar critical habitat,
FWSAR Doc. 227 at FWS047647-58, and this analysis was carried forward into the 2016
BiOp, FWSAR Doc. 520 at FWS049635-37.
CBD’s flawed jaguar critical habitat argument turns on the threshold issue of
whether Rosemont Project activities will constrict Unit 3 in such a way that it will render
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Subunit 4b inaccessible. Citing only the draft preliminary documents, CBD asserts that
“FWS considered the likely loss of function in Subunit 4b in concluding adverse
modification” in the draft BiOps. CBD Resp. at 7 (citing FWSAR Doc. 217 at 047633).
CBD then jumps to criticizing the Field Supervisor for his opinion that loss part of
Subunit 4b would not preclude connectivity to Mexico. Id. CBD’s argument is a red
herring, however, because without demonstrating that loss of Subunit 4b is itself probable
(using CBD’s definition of “likely”), the importance of Subunit 4b in the critical habitat
analysis is irrelevant.
The Field Supervisor explained that this connectivity issue was only the first of
three steps -- all of which must be satisfied -- to reach an adverse modification finding.
See FWS047651 (framing the threshold step as showing that “the jaguar would be unable
to traverse the constricted area at the unit 3-unit 4b interface”). In assessing the
connectivity between Unit 3 and Subunit 4b, the Field Supervisor examined each of the
various activities that could affect jaguar use of the constricted Unit 3 corridor, including
lighting, noise and vibration, and roads and traffic. FWS047651-52. In each instance, he
analyzed the best available information and applied his expertise to determine that
preclusion of jaguar movement through this corridor was “speculative at best,” “weak”
and “no[t] convincing,” and “unlikely.” Id. Based on this assessment, which is entitled
to all the deference the Ninth Circuit afforded FWS in Zinke, the Field Supervisor
concluded that the draft staff documents established only that the loss of connectivity
between Unit 3 and Subunit 4b was only “possible,” not “likely” or “probable” under
even CBD’s preferred definition.
Based on this analysis, the 2016 BiOp thus properly explained that loss of
connectivity to and through Subunit 4b, or the even greater adverse impacts and habitat
loss trumpeted by CBD in its misreading of the BiOp, were nothing more than
“hypothetical, and increasingly worst-case effects, [that] are similarly unsupported by the
best available information.” FWS049637. As mere hypothetical scenarios that are not
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expected to occur under any definition of “likely,” FWS did not err in determining that
the Rosemont Project is not likely to destroy or adversely modify jaguar critical habitat.
B. FWS Was Not Required To Establish A “Tipping Point” For The Northern Mexican Gartersnake Or Any Other Species
CBD’s argument that FWS was required to expressly establish a “tipping point”
for the gartersnake is directly contrary to binding en banc Ninth Circuit case law, as CBD
cannot point to any provision of the ESA and its implementing regulations containing
such a requirement. See McNair, 537 F.3d at 993 (“Nor may we impose procedural
requirements not explicitly enumerated in the pertinent statutes.”) (quotation marks,
modification, and citation omitted). CBD relies heavily on a district court case, Center
for Biological Diversity v. Salazar, 804 F. Supp. 2d 987, 999-1000 (D. Ariz. 2011),
stating that the Ninth Circuit in other cases did establish such a requirement, even though
no such requirement is present in the ESA. CBD Resp. at 10-11. But neither Salazar,
nor any other Ninth Circuit regular panel decision, can overrule the en banc rule
established in McNair. On this basis alone, CBD’s “tipping point” argument must be
rejected. See Oceana v. Nat’l Marine Fisheries Serv., No. 3:14-cv-00253-TMB, 2015
WL 12697739, *7 (D. Alaska Sept. 16, 2015) (“Precedent in this circuit indicates that
there is no affirmative duty under the ESA to identify a clear tipping point line ....”).
Federal Defendants’ opening brief discussed at length the unique circumstances
that explain why FWS rationally did not conduct a “tipping point” analysis for the
gartersnake like it did for other species in the 2016 BiOp, distinguishing CBD’s “tipping
point” cases. Feds. Memo. at 13-17. Those unique circumstances are that at the very
time that FWS was consulting with the Forest Service on the potential effects of the
Rosemont Project on the gartersnake pursuant to ESA Section 7, FWS was
contemporaneously determining whether to list the species as “threatened” or
“endangered” under ESA Section 4. Id. at 13-14 (citing 79 Fed. Reg. 38,678, 38,706
(July 8, 2014)). Not only was that listing analysis taking place contemporaneously with
the Rosemont consultation, it expressly factored Rosemont Project impacts into its listing
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decision. Id. (citing 79 Fed. Reg. at 38,706). And, even while taking impacts from the
Rosemont Project into account, FWS “determined that the present risk of extinction is not
sufficient to warrant a finding of endangered under the [ESA],” finding that the
gartersnake “is not currently in danger of extinction because it remains extant in most of
the subbasins where it historically occurred, and its known threats have not yet resulted in
substantial range reduction or a substantial number of population extirpations to put the
subspecies on the brink of extinction.” 79 Fed. Reg. at 38,741-42. Instead, FWS listed
the species at the less serious “threatened” level. FWS relied extensively on the analysis
in the listing decision in conducting its analysis in the 2016 BiOp. See, e.g., FWS049491
(expressly incorporating the listing decision into the BiOp).
CBD ignores this argument, instead misrepresenting and dismissing it as merely
an assertion that the purported “tipping point” requirement does not apply to “threatened”
species, and noting that several “tipping point” cases involved threatened species. CBD
Resp. at 11-12. But this was not Federal Defendants’ argument at all. Instead, Federal
Defendants’ argument focused on the contemporaneous listing decision analysis that
expressly took into account Rosemont Project impacts in determining the gartersnake was
not in danger of extinction. These unique circumstances distinguish the gartersnake
analysis from all of the “tipping point” cases on which CBD relies -- not its mere status
as “threatened,” but the fact that the “threatened” determination was made
contemporaneously with the Rosemont consultation and taking Rosemont Project impacts
into consideration.
It is important to remember that “[t]he affected northern Mexican gartersnake
population and its proposed critical habitat, within and downstream of the Las Cienegas
[National Conservation Area], represent a relatively small proportion of the species’
rangewide distribution in the United States and Mexico.” FWS049516. Federal
Defendants’ opening brief explained how the BiOp followed the reasoning of the listing
decision, which found that the most serious threat to the gartersnake was not the lowering
of the water table in such areas as Cienega Creek and Empire Gulch (which is CBD’s
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misplaced focus) but the existence of non-native species. See 79 Fed. Reg. at 38,687
(stating that “[t]he presence of harmful nonnative species constitutes the most significant
threat” to the gartersnake, as these nonnative species (including bass, catfish, trout,
bullfrogs, and crayfish) directly prey on the gartersnake and compete with them for prey).
Furthermore, “[t]here is no larger or more geographically pervasive factor
negatively affecting to the status of the Gila chub, Gila topminnow, desert pupfish,
Chiricahua leopard frog, or northern Mexican gartersnake, across their rangewide
distributions, than harmful nonnative species.” FWS049512. The 2016 BiOp, however,
credited “[t]he suite of conservation measures, especially the funding of the anticipated
13-year implementation of the Harmful Nonnative Species Management and Removal
Program in the upper Santa Cruz River subbasin, is expected to substantially improve the
baseline status for the northern Mexican gartersnake and its native prey community on a
subbasin-level,” as mitigating this concern. FWS049518. CBD does not address this
argument or these facts, and further ignores the BiOp’s analysis of the most serious
factors set forth in the listing decision. Feds. Memo. at 16.
CBD’s “tipping point” argument fails as a matter of law, and also lacks merit
because it ignores the detailed analysis presented in the 2016 BiOp for the gartersnake.
See FWS049491-521.
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C. The Required Mitigation Measures For The Rosemont Project Are Not “Uncertain”
CBD continues to assert that two of the many conservation measures that are part
of the Rosemont Project are “uncertain” to occur (Cienega Creek Watershed Fund and
Sonoita Creek Ranch), and therefore FWS’s reliance on those measures as potential
offsets to impacts on listed species was arbitrary and capricious. CBD Resp. at 14-16.
As Federal Defendants explained, however, “uncertainty” refers to whether the measures
will be implemented, not whether they will be as effective as anticipated, and there is no
assertion here that these measures will not be implemented since they were made a
binding part of the Forest Service’s approval of the Project. Feds. Memo. at 17-19; see
also FS0259764, FS0259773, FS0259775, FS0259824.
In any event, CBD’s criticisms of these particular mitigation measures -- based on
statements from EPA and the Corps -- is misplaced. The EPA’s and the Corps’
comments were concerned in the first instance with whether the measures will meet
compensatory mitigation requirements under the Clean Water Act. See FWS018614-29.
The decision-making process for Rosemont to obtain a permit under the Clean Water Act
is ongoing, and Rosemont has continued to enhance its mitigation measures and address
the agencies’ concerns in that process. In the 2016 BiOp, however, FWS expressly
addressed concerns with the mitigation measures, such as mitigation measures relating to
Pantano Dam. See, e.g., FWS049419, FWS049439, FWS049510. If the mitigation
measures do not prove effective in the future, the result is that the Forest Service and
FWS will reinitiate ESA Section 7 consultation, not an invalidation of the BiOp. CBD’s
mitigation claim fails to establish a cognizable basis to find the 2016 BiOp is arbitrary
and capricious.
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D. FWS Considered All Relevant Impacts
1. CBD Misrepresents FWS’s Groundwater Drawdown Analyses
CBD ignores the central issue with respect to groundwater pumping. CBD Resp.
at 17-19. The Forest Service and FWS consistently acknowledged that private wells
could contribute cumulative impacts on listed species and habitat:
It is clear that a wide variety of additional stresses to the aquifer, both foreseen and unforeseen, could happen in the Cienega Creek basin: increased pumping and development, climate change, cyclic droughts, major fires, land use changes such as grazing, insect outbreaks, management decisions such as beaver reintroduction, and invasive species, just to name a few. Any or all of these could cause cumulative stress on top of predicted mine drawdown …. There is a shared understanding among Federal specialists that the riparian system along Cienega Creek and Empire Gulch is currently stressed from ongoing drought conditions. There is also a shared belief that such conditions will only get worse in the future due to climate change or development pressure.
FS0260579-80. Nor did the Forest Service or FWS ignore these stresses in the Final
Environmental Impact Statement (“FEIS”) or BiOps. See FS0237049 (identifying basin
pumping, noting the speculative nature of pumping, but also noting analysis in FEIS as an
ongoing trend); FS0237247 (identifying basin pumping as an “exacerbating factor” to be
analyzed with perennial flows); FS0237268-69 (detailed discussion of basin pumping as
an “exacerbating factor”); FS0237270 (the overall qualitative effect of basin pumping on
predictions of streamflow impact); FS0260578-79 (discussing increases in basin pumping
and difficulties in quantifying); FWS046553 (2013 BiOp discussion of incremental effect
of basin pumping on Gila Chub, for example); FWS049421 (2016 BiOp discussion of
cumulative effect of basin pumping on Gila Chub, for example).
The central issue is not one of plausibility or analysis, but whether pumping
impacts can be reasonably quantified. “That additional water use will occur in the basin
is highly likely; quantifying its effects on the Las Cienegas [National Conservation Area]
with any degree of certainty is speculative and highly problematic.” FS0260578. The
Forest Service and FWS took a reasonable approach to address these potential impacts, in
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light of the uncertainty, by conducting a “stress test” in conjunction with Rosemont
Project impacts. “It is not the purpose of the analysis, however, to pretend to be able to
predict the exact nature and impact from climate change or any other future stress.”
FS0260579. Rather, the stress test was applied to inform the analysis in two ways,
including “to assess whether impacts from mine drawdown take on greater importance
when occurring in a scenario different from current conditions (i.e., an environment that
is more stressed),” as well as “the level to which the riparian system could be degraded,
without mine drawdown ever occurring.” FWS0260579. The Forest Service stress test
that FWS adopted in the BiOp provided context for the project-specific impacts. See
Feds. Memo. at 20-22.
The four documents that CBD cites in its response makes the case for looking at
pumping in the Cienega Creek basin, which is precisely what the Forest Service and FWS
did. These documents, however, do not offer any valid alternative methodology that
could surmount the problem of speculating on amounts and locations of future pumping,
as the Forest Service explained. FS0260578-79. Of CBD’s four documents, only two
mention methodology. A BLM comment on a draft of the Forest Service’s 2015
Supplemental Information Report (“SIR”) states:
An inventory of all wells and pumping rates within the basin is necessary information to more accurately analyze impacts to local wells and is not “prohibitively costly and time consuming”. It should be conducted to provide a much higher level of confidence in the model predictions. Much/most of the necessary information is available from [Arizona Department of Water Resources] records. Our preliminary research shows that as of 2009 there are a total of 1,886 exempt wells in the basin. This represents an increase of about 49% since 1990 when there were 1,263, and a 29% increase between 1990 and 2000 with 366 new wells registered in that period.
FS0261939. The Forest Service already included similar numbers of wells in the FEIS,
FS0237069-70, but also described why the pumping information BLM describes is not
available: “Of these characteristics, well depth and perforated interval are commonly
available through public databases. However, current water level, pump settings, and
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pumping water levels are rarely reported or regularly updated.” FS0237035 (emphasis
added).
Similarly, BLM sent FWS emails with an attached report titled “Las Cienegas
National Conservation Areas – Water Use Study.” FWS020033-73(E). This report
provides essentially the same information presented in the FEIS, focusing on the numbers
of wells in the basin as a whole, but does not project future growth. As such it also offers
no methodology useful for quantifying the amount and location of future pumping.
The Administrative Record clearly shows groundwater pumping was not ignored,
but was addressed in the FEIS, the 2015 SIR, and ultimately the 2016 BiOp, by applying
the conservative and comprehensive groundwater “stress test.” CBD may not agree with
the agencies’ methodology for assessing basin pumping impacts or may wish that the
agencies had conducted the studies postulated by BLM. But, as discussed above, the
ESA only requires FWS to base its BiOp on the best scientific information available, 16
U.S.C § 1536(a)(2), not conduct new studies. See, e.g., San Luis & Delta-Mendota Water
Auth. v. Locke, 776 F.3d 971, 995 (9th Cir. 2014) (“The [best available science] standard
does not . . . require an agency to conduct new tests or make decisions on data that does
not yet exist.”); Sw. Ctr. for Biological Diversity v. Babbitt, 215 F.3d 58, 60 (D.C. Cir.
2000) (“The ‘best available data’ requirement [of the ESA] makes it clear that [FWS] has
no obligation to conduct independent studies.”).
CBD cannot show that FWS “completely failed” to consider groundwater
drawdown effect in analyzing impacts of the Rosemont Project under ESA Section 7.
See Consol. Delta Smelt Cases, 717 F. Supp. 2d 1021, 1058 (E.D. Cal. 2010). CBD’s
groundwater pumping claim must be rejected.
2. FWS Considered Possible Impacts From Mining Contaminants CBD’s toxic contaminants argument fairs no better. See CBD Resp. at 19-22.
CBD erroneously asserts that a single passage in the 2016 BiOp represents the entirety of
analysis available to FWS in forming its determination. To the contrary, FWS reviewed
the Forest Service’s analyses, as stated in the BiOp. FWS049328. Based on this full
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background analysis, FWS reasonably concluded that “[d]ischarges to groundwater are
not expected to exceed water quality standards.” FWS049403. Federal Defendants’
opening brief details a litany of Administrative Record materials analyzing potential
groundwater and surface water quality impacts that form the foundation for the NEPA
and ESA Section 7 analyses. Feds. Memo. at 25.
Similarly, FWS’s reference to the cone of depression does not mean that the cone
of depression was the sole reason FWS determined there would not be groundwater
contamination. Indeed, the FEIS analysis indicates that the cone of depression would not
always contain seepage, but this lack of perfect capture is not a problem because
“seepage … is not expected to exceed any numeric Arizona Aquifer Water Quality
Standard, [and] there would be no water quality impacts from seepage flow away from
the mine site.” FS0237128. In the same manner, with respect to surface water quality,
the Clean Water Act 401 certification cited by FWS is but one consideration, not the sole
consideration. See Feds. Memo. at 25 (addressing analyses regarding potential surface
water contamination).
CBD asserts that 2011 EPA comments on the Draft EIS indicate that the fate and
transport of contaminants in groundwater should be considered. CBD Resp. at 20 (citing
FWS080921).2 The Forest Service responded to the EPA comments on seepage. See
2 In violation of the Court’s April 16, 2018 Scheduling Order, ECF No. 81 at 2, CBD attempts to supplement the Administrative Record with a 2017 EPA letter without leave of the Court. CBD Resp. at 21 n.13. Not only does CBD’s attempt violate the Court’s Order, the letter postdates the 2016 BiOp and cannot be considered by the Court under any exception to the Administrative Record. See, e.g., Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996) (holding that “post-decision information ... may not be advanced as a new rationalization either for sustaining or attacking an agency’s decision”); Rybachek v. EPA, 904 F.2d 1276, 1296 n.25 (9th Cir. 1990) (rejecting motion to take judicial notice because “[j]udicial review of agency actions should generally be confined to the original record upon which the actions were based”). Moreover, CBD presents the 2017 EPA letter out of context, as that letter was presented to the Corps as part of the ongoing Clean Water Act permitting process, and has been addressed and rebutted by materials in that process. For these reasons, Federal Defendants object to the Court’s consideration of this letter.
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FS0243217-21 (FEIS Appendix G (republished)); FS0237104-06 (summary of changes
made to FEIS in part in response to EPA comments). The Forest Service even conducted
additional analysis to vet EPA’s concerns, FS0237119-21, but reached the same
conclusions that seepage was unlikely to occur from waste rock, and even if it did occur
it would not exceed water quality standards. FS0237122-23. And, while some seepage
from tailings would occur, that seepage also would not exceed water quality standards.
FS0237121-22. In addition to these determinations, the Forest Service required
monitoring to ensure that its seepage predictions were correct. FS0237110-11,
FS0237121.
While CBD contends that EPA’s concerns on the DEIS remain valid, the Forest
Service’s extensive further analysis -- upon which FWS based its BiOp3 -- was
reasonable and thorough, utilized outside experts and peer review, was responsive to
comments, and implemented reasonable monitoring to backstop predictions. CBD’s
argument that the FWS failed to consider the potential impacts of toxic contaminants in
the ESA Section 7 consultation is not supported by the Administrative Record.
E. The Incidental Take Statement Relies On A Proper Take Surrogate CBD continues to misunderstand, or simply misrepresent, FWS’s adopted
surrogate of groundwater well monitoring and modeling for measuring incidental take of
listed species that may be impacted by stream-flow reductions. CBD Resp. at 22-25.
While complaining that the FWS surrogate contains recognized uncertainties and
complexities, CBD completely fails to demonstrate even the possibility that there is any
better method for measuring incidental take resulting from the Rosemont Project, or that
the surrogate is not the product of the best scientific data available, the standard that
applies to FWS’s ESA Section 7 determinations. See Pub. Employees for Envtl.
3 The agencies addressed mining contaminants and water quality issues throughout the ESA consultation. E.g., FWS046313-15, FWS046333-36, FWS046378, FWS046354, FWS046507, FWS046554, FWS046598, FWS049403, FWS049539, FS0159426-27, -39, FS0159681-82, -85.
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Responsibility v. Hopper, 827 F.3d 1077, 1088 (D.C. Cir. 2016) (stating FWS “must base
[incidental take statements] on the ‘best scientific and commercial data available.’”)
(quoting 50 C.F.R. § 402.14(g)(8)). CBD’s failure to show that FWS’s surrogate is not
based on the best scientific information available is fatal to its claim. See, e.g., Swan
View Coal. v. Barbouletos, No. CV 05-64-M-DWM, 2008 WL 5682092, *13 (D. Mont.
Mar. 31, 2008) (rejecting challenge to incidental take surrogate because plaintiffs failed
to demonstrate surrogate was not based on the best scientific information available).
Federal Defendants’ opening brief addressed in detail FWS’s methodology for
employing its incidental take surrogate, including how the take thresholds of less than 0.1
feet at the streams will be predicted using the conservative Tetra Tech groundwater
model based on groundwater drawdown at wells closer to the Rosemont Mine; how using
groundwater monitoring wells close to the Mine will eliminate much of the delay in
identifying drawdown impacts that concerned the court in Save Our Cabinets v. U.S. Fish
& Wildlife Service, 255 F. Supp. 3d 1035 (D. Mont. 2017); how the wells will be
immediately and intensively monitored to develop baseline information before mining
impacts begin to help reduce background “noise” from natural fluctuations in
groundwater levels; and how the agencies have identified a specific set of wells that will
be used as the source of wells for the monitoring. Feds. Memo. at 28-32; see also
FWS049430-31 (setting forth detailed procedures for implementing surrogate).
While CBD questions aspects of FWS’s methodologies and modeling, CBD has
not and cannot show that the scientific uncertainties and complexities render FWS’s
approach unreasonable, particularly where CBD offers no alternative means for
measuring incidental take. See, e.g., Greenpeace Action v. Franklin, 14 F.3d 1324, 1336
(9th Cir. 1992) (“When an agency [(FWS, implementing ESA Section 7)] relies on the
analysis and opinion of experts and employs the best evidence available, the fact that the
evidence is ‘weak,’ and thus not dispositive, does not render the agency’s determination
‘arbitrary and capricious.’”); Alaska Oil & Gas Ass’n v. Jewell, 815 F.3d 544, 558 (9th
Cir. 2016) (“To the extent that Plaintiffs demand greater scientific specificity than
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available data could provide, Plaintiffs echo the district court’s error in demanding too
high a standard of scientific proof.”); Nat’l Wildlife Fed’n v. Babbitt, 128 F. Supp. 2d
1274, 1300 (E.D. Cal. 2000) (“The most reasonable reading of [ESA Section 7] permits
[FWS] to take action based on imperfect data, so long as the data is the best available,”
and FWS’s Section 7 “finding is not rendered arbitrary and capricious by the data gaps
identified by plaintiffs.”).
Indeed, CBD’s approach is to misrepresent or take early comments out of context,
ignoring how those comments were addressed in the final Incidental Take Statement. For
instance, CBD cites FWS121344 for the proposition that Project impacts to groundwater
levels is “predicted to take years to show up” at monitoring wells. CBD Resp. at 23. But
that document expressly refers to wells “mid-distance” from the Mine, whereas FWS
chose monitoring wells in close proximity to the Mine to minimize this lag and
background noise. FWS046014.
FWS’s adoption of a surrogate for incidental take, despite its uncertainties and
complexities, was reasonable and based on the best available scientific information.
CBD’s challenges FWS’s decision adopting this surrogate must be rejected.
II. FWS PROPERLY DEFINED “DESTRUCTION OR ADVERSE MODIFICATION” OF CRITICAL HABITAT
CBD’s argument that FWS must separately define “destruction” and “adverse
modification” as those terms are used in ESA Section 7, CBD Resp. at 26-30, defies
logic, common sense, and the rules of statutory interpretation. CBD insists that ESA’s
“plain language” requires that the “or” in “destruction or adverse modification” of
designated critical habitat must be read in the disjunctive. Id. at 26. But even the case
that CBD relies on for this flawed proposition recognizes only that a statutory “or” is
only “almost always disjunctive.” United States v. Woods, 571 U.S. 31, 45-46 (2013)
(emphasis added). Indeed, the case Woods quotes in support of this proposition, states
that “[c]anons of construction ordinarily suggest that terms connected by a disjunctive be
given separate meanings, unless the context dictates otherwise.” Reiter v. Sonotone
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Corp., 442 U.S. 330, 339 (1979) (emphasis added).
Here, the context of ESA Section 7 indicates that even Congress viewed
“destruction or adverse modification” as a unified concept, as that same provision
requires FWS to provide the action agency with “reasonable and prudent alternatives” to
the proposed agency action “[i]f jeopardy or adverse modification is found” in a BiOp.
16 U.S.C. § 1536(b)(3)(A). That even Congress conflated “destruction or adverse
modification” into a shorthand “adverse modification” in the very same section of the
ESA that forms the basis for CBD’s argument dispenses with CBD’s contention that the
two terms must be given separate meanings.
Moreover, FWS’s revised regulation does not actually define either term, but
instead focuses on the magnitude of an agency action’s impacts on critical habitat:
“Destruction or adverse modification means a direct or indirect alteration that appreciably
diminishes the value of critical habitat for the conservation of a listed species.” 50 C.F.R.
§ 402.02. Nothing in this regulation prevents “destruction” from being given a different
(albeit overlapping) definition than “adverse modification” when assessing project
impacts. The importance and intent of this regulation is that the “direct or indirect
alteration” of an area of critical habitat will violate ESA Section 7 if it “appreciably
diminishes” the conservation value of designated critical habitat, regardless of whether
that “alteration” can be classified as “destruction,” “adverse modification,” or both. This
interpretation of Section 7 is consistent with the language and intent of the statute and
must be upheld under Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S.
837 (1984). Separately defining “destruction” and “adverse modification” is unnecessary
and would have no real-world impact on implementation of Section 7.
CBD faults FWS and the Ninth Circuit for using the shorthand “adverse
modification” for the Section 7 requirement for protecting designated critical habitat,
accusing both of reading “destruction” out of the provision. See CBD Resp. at 26-30
(citing, inter alia, Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d
1059 (9th Cir. 2004), and Butte Envtl. Council v. U.S. Army Corps of Eng’rs, 620 F.3d
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936 (9th Cir. 2010)). Oddly, while asserting that the Ninth Circuit was not presented
with the question of whether “destruction” must be given a separate meaning, CBD Resp.
at 29 n.18, CBD argues that the Butte Court’s holding -- that FWS’s determination was
consistent with Section 7 even though areas of critical habitat would be “destroyed” --
was flawed. Id. at 28-30. CBD contends that the Ninth Circuit referenced only the
“adverse modification” term of that provision in this holding, because the holding would
not make sense if it also included the “destruction” term. Id.
But the FWS determination challenged in Butte actually included both terms of the
provision. See Butte, 620 F.3d at 947 (stating that plaintiff “challenges as arbitrary and
capricious the FWS’s biological opinion that the City’s proposed Stillwater project
‘would not result in the adverse modification or destruction of critical habitat for [the
listed species]’”). The Court’s holding was actually based on the legal finding that “[a]n
area of a species’ critical habitat can be destroyed without appreciably diminishing the
value of critical habitat for the species’ survival or recovery.” Id. at 948. The Court’s
holding thus turned on whether the destruction of areas of critical habitat (totaling more
than 200 acres for each of two species, id. at 947-48) would violate Section 7’s
prohibition against agency actions that are likely to “result in the destruction or adverse
modification of [designated critical] habitat,” 16 U.S.C. § 1536(a)(2), not just the
“adverse modification” portion of this prohibition as CBD contends. In other words, the
Butte Court held that destruction of acres of critical habitat does not result in “destruction
or adverse modification” of critical habitat unless it rises to the level of appreciably
diminishing the conservation value of critical habitat at a broader level than just those
particular acres. See 620 F.3d at 948 (“After all, the project would destroy only a very
small percentage of each affected species’ critical habitat, whether viewed on a unit or
nationwide basis.”).
Contrary to CBD misrepresentations, then, the Butte Court plainly used “adverse
modification” as shorthand for the entire Section 7 prohibition against “destruction or
adverse modification” of critical habitat, just as Congress itself did in that same
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provision. It is nonsensical to assert that the Butte Court somehow excised and left
unanswered the validity of FWS’s finding the destruction of acres of critical habitat did
not result in the “destruction” critical habitat under Section 7. Butte therefore supports
FWS’s regulation presenting “destruction or adverse modification” as a unified concept
that turns on whether the adverse impacts of the agency action appreciably diminish the
conservation value of the designated critical habitat, regardless of whether those impacts
can be placed in a “destruction” box or “adverse modification” box.
In short, FWS’s long-standing practice applying the phrase “destruction or adverse
modification” as a continuum of impacts and not two distinct standards is consistent with
the plain language and intent of Section 7 of the ESA. No separate definitions of these
terms are necessary or useful. CBD’s challenge to FWS’s reliance on the revised critical
habitat regulation is without merit.
III. FWS HAS NOT REVISED JAGUAR CRITICAL HABITAT
CBD’s response that the 2016 BiOp somehow revises the jaguar critical habitat
designation without notice and comment rulemaking procedures begins with the plainly
false statement that it is “undisputed” that the Rosemont Project is “likely” to render
“over 100,000 additional acres . . . functionally useless for the jaguar.” CBD Resp. at 31.
As discussed above and as explained in the BiOp, the permanent loss of acreage beyond
the 4,013 acres of Unit 3 within the security fence and from roads is not at all likely
(under any definition of the term) but would only occur under increasingly worse-case
hypothetical scenarios that are “unsupported” by the best scientific information of the
likely impacts from the Project. See FWS049635-37.
Undaunted by opening its argument with such a patently false statement, CBD
proceeds to argue that even the permanent loss of 4,013 acres of Unit 3 constitutes a
revision of the jaguar designated critical habitat. CBD Resp. at 32-33. But CBD bases
this argument on a further gross misrepresentation of Federal Defendants’ position. Id. at
32. Federal Defendants have never asserted that a project may destroy designated critical
habitat without a finding of “adverse modification.” Instead, Federal Defendants stated
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what clearly is the law: “Because the destruction of areas [or acres] of critical habitat
does not necessarily adversely modify designated critical habitat, the loss of critical
habitat cannot constitute a de facto revision of the designation.” Feds. Memo. at 37
(emphasis added). This statement only recognizes what cases have held: agency actions
causing the loss of acres of critical habitat acres do not necessarily rise to the level of
constituting “destruction or adverse modification of [designated critical] habitat” under
ESA Section 7, 16 U.S.C. § 1536(a)(2). See, e.g., Butte, 620 F.3d at 948 (“An area of a
species’ critical habitat can be destroyed without appreciably diminishing the value of
critical habitat for the species’ survival or recovery.”).
CBD’s failure to address these cases demonstrates the fallacy of its argument, as
these cases make clear that areas or acres of critical habitat may be lost (whether that loss
is characterized as a diminution in conservation value, adverse modification, or outright
and complete destruction) consistent with Sections 4 and 7 of the ESA. The relevant
inquiry is whether the loss of those critical habitat acres rises to the level that it
“appreciably diminishes the value of critical habitat [not just those lost acres] for the
conservation of a listed species.” 50 C.F.R. § 402.02. CBD’s argument fails to grasp this
concept, and would impermissibly render the loss of even a single acre of critical habitat
(or even less) as a violation of Sections 4 and 7. This is not the law, and CBD’s
argument must be rejected.
IV. THE FOREST SERVICE LAWFULLY RELIED ON FWS’S BIOPS CBD has failed to demonstrate that the Forest Service’s ROD violates the ESA,
even if this Court were to find that FWS’s BiOp is arbitrary and capricious in some
manner. CBD Resp. at 33-34. The ROD does not rely solely on the BiOp, but on the
Forest Service’s own biological assessments. See FS0259813. CBD’s response does not
show that the Forest Service’s biological assessments are insufficient to comply with that
agency’s independent obligation to ensure that its actions comply with the requirements
of Section 7 of the ESA. See 16 U.S.C. § 1536(a)(2). CBD’s claim must be rejected.
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V. CBD CONTINUES TO FAIL TO SHOW THAT ANY RELIEF IS APPROPRIATE
CBD asserts that if the Court finds a violation of the ESA it must mechanically set
aside the FWS’s BiOps and Forest Service ROD, without considering Rosemont’s
hardships or whether there is actual harm to listed species. CBD Resp. at 34-35. This is
not the law. In many cases courts have refused to halt projects on federal lands even after
finding ESA violations. See, e.g., Sw Ctr. for Biological Diversity v. U.S. Forest Serv.,
No. CV 97-666, 2001 WL 36657004, *38 (D. Ariz. Mar. 30, 2001) (declining to enjoin
livestock grazing on National Forest System lands, despite finding of ESA violations,
because “there has not been a sufficient showing of irreparable harm”). As the Ninth
Circuit has stated, to establish that the equities favor halting an activity for a substantive
violation of the ESA, a plaintiff must show “a definitive threat of future harm to protected
species, not mere speculation.” Nat’l Wildlife Fed’n v. Burlington N.R.R., Inc., 23 F.3d
1508, 1512 n.8 (9th Cir. 1994); see also Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1066
(9th Cir. 1996) (“A reasonably certain threat of imminent harm to a protected species is
sufficient for issuance of an injunction.”). CBD’s assertions of harm to listed species
during any remand to the agencies is based on pure speculation, as CBD fails to
demonstrate how initial Project activities will harm listed species. Therefore, CBD’s
request to set aside and vacate the BiOps and ROD must be denied.
CONCLUSION
CBD’s ESA claims are without merit, and the Court should grant Federal
Defendants’ cross-motion for summary judgment.
//
//
//
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Respectfully submitted this 14th day of December, 2018,
JEAN E. WILLIAMS Deputy Assistant Attorney General U.S. Department of Justice Environment and Natural Resources Division /s/ Andrew A. Smith ANDREW A. SMITH (NM Bar 8341) Senior Trial Attorney Natural Resources Section c/o United States Attorney’s Office 201 Third Street, N.W., Suite 900 P.O. Box 607 Albuquerque, New Mexico 87103 Phone: (505) 224-1468 [email protected]
LILA C. JONES (NM Bar 149098) Trial Attorney Natural Resources Section PO Box 7611 Washington, DC 20044-7611 Phone: (202) 514-9859 [email protected] NICOLE SMITH (CA Bar 303629) Trial Attorney Wildlife and Marine Resources Section P.O. Box 7611 Washington, D.C. 20004-7611 Phone: (202) 305-0368 [email protected]
Attorneys for Federal Defendants
Case 4:17-cv-00475-JAS Document 157 Filed 12/14/18 Page 28 of 29
