CENTER FOR BIOLOGICAL DIVERSITY V. DEB HAALAND, No. 22-15809 (9th Cir. 2023)
Annotate this CaseThe United States Court of Appeals for the Ninth Circuit vacated a Biological Opinion (BiOp) by the U.S. Fish and Wildlife Service (the Service) and remanded the case for further consideration. The case involved a dispute over the use of water from the San Pedro River Basin in Arizona by the U.S. Army's Fort Huachuca. The Army uses water from the basin, which is also home to several species protected under the Endangered Species Act. To compensate for the water use, the federal government proposed a "conservation easement" that would limit the use of nearby land for agricultural purposes, therefore saving water and protecting the wildlife that depend on the basin. The plaintiffs, environmental organizations, argued that the BiOp lacked evidence to support the claim of water savings from the easement. The Ninth Circuit agreed, stating that the government's determination that the easement would not jeopardize wildlife was arbitrary and capricious due to the lack of evidence supporting the claimed water savings. The court stated that the government must show that the benefit from the conservation easement would be "reasonably certain" under the relevant regulations. The court also held that the government's conclusion that reduced flow in the Babocomari River, a tributary of the San Pedro River, would not jeopardize the northern Mexican gartersnake was not arbitrary and capricious.
Court Description: Endangered Species Act. In an action brought by environmental organizations challenging a U.S. Fish and Wildlife Service Biological Opinion (BiOp) concerning the use of water from the San Pedro River Basin in Arizona, the panel vacated the BiOp, reversed the district court’s summary judgment for the government on the Preserved Petrified Forest easement, and remanded with instructions for the Service and the U.S.
Army to reevaluate its water-savings analysis in a new biological opinion. The U.S. Army pumps and uses water from the San Pedro River Basin, which also houses several plant and animal species protected under the Endangered Species Act. To compensate for the water use, the federal government proposed a conservation easement—a promise not to use nearby land for water-intensive agricultural purposes—that would hypothetically save water and not jeopardize wildlife that depend on the basin.
The panel agreed with plaintiffs’ contention that the Service’s BiOp lacked evidence to support its water-savings analysis. The panel held that the government must show that the benefit from the conservation easement would be “reasonably certain” under the relevant regulations. Here, the government provided little evidence and relied mostly on speculation to claim water savings. Consequently, the government’s no-jeopardy determination about the protected wildlife was arbitrary and capricious.
The panel further held that the government’s conclusion that the reduction in the baseflow of the Babocomari River (a tributary of the San Pedro River) would not jeopardize the northern Mexican gartersnake was not arbitrary and capricious, and thus the issue need not be reconsidered on remand.
Judge Collins concurred in part and concurred in the judgment. He concurred in the majority’s judgment to the extent that it partially reversed and remanded to the district court with instructions to remand for preparation of a new BiOP that rested on a revised water-savings analysis, but would reach that conclusion on narrower grounds than the majority. He concurred in Part II of the court’s opinion, which rejected plaintiffs’ further contentions that are specific to the government’s challenged determinations as to the northern Mexican gartersnake.
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