San Luis & Delta-Mendota Water Authority et al v. Salazar et al, No. 1:2009cv00407 - Document 354 (E.D. Cal. 2009)

Court Description: MEMORANDUM DECISION Re Cross Motions for Summary Judgment Re Reasonable and Prudent Alternative Claims and Related Procedural Motions 230 236 284 299 , signed by Judge Oliver W. Wanger on 10/15/09. (Coffman, Lisa)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRI CT CO URT FOR THE EASTERN DISTRICT OF C ALIFORNIA DELTA SM ELT CONSOLID ATED CASES 1:09-CV- 407 OWW DLB SAN LUIS & DEL TA-MENDOTA WATER AU THORITY, et al. v. SALAZAR, et al. (1:09-cv- 407 OWW DLB) MEMORANDUM DEC ISION RE CROSS MOTIONS FOR SU MMARY JUDGMENT RE REASONABLE AND PR UDENT ALTERNATIVE CL AIMS ( Docs. 230 & 236). STATE WA TER CONTRACT ORS v. SALAZAR, et al. (1:09-cv- 422 OWW GSA) COALITIO N FOR A SUST AINABLE DELTA, e t al. v. UNITED STATES F ISH AND WILD LIFE SERVICE, et al. (1:09-cv- 480 OWW GSA) METROPOL ITAN WATER D ISTRICT v. UNITE D STATES FIS H AND WILDLIFE SERVICE, et al. (1:09-cv -631 OWW DLB ) STEWART & JASPER ORC HARDS et al. v. U NITED STATES FISH AND WILD LIFE SERVICE (1:09cv-892 OWW DLB ) I. INTRODUCTION This cas e is before the c ourt on the parties cro ss motions for summary judgment to adjudicate the Un ited States F ish and Wild life Service s ( FWS ) Decemb er 15, 26 2008 bio logical opin ion ( BiOp or 2008 BiOp ) r egarding 27 the impa ct of coordi nated operations of the Centr al 28 1 1 Valley P roject ( CVP ) and State Wate r Project ( SWP ) 2 (the Pr ojects ) on the threatened delta smelt, p repared 3 pursuant to Section 7(a)(2) of the Endangered Spe cies Act 4 5 6 7 ( ESA ), 16 U.S.C. § § 1536(a)(2). Because the Bi Op found that pla nned Project operations would jeopardize the continue d existence of the delta smelt and/or adv ersely 8 modify i ts critical habitat, FWS proposed a Reaso nable 9 and Prud ent Alternat ive ( RPA ) that imposes cert ain 10 operatin g restrictio ns on the Projects. 11 12 13 14 15 Plaintif fs in all fi ve consolidated cases ( Plaint iffs ) argue that FWS was required to mak e certain findings in the text of the BiOp related to the RPA, nam ely whether (1) the RPA is consistent wit h 16 continue d operations of the SWP and CVP, (2) 17 implemen tation of th e RPA is economically and 18 technolo gically feas ible, and (3) the RPA is capa ble of 19 being im plemented wi thin the legal authority and 20 jurisdic tion of the operators, the Bureau of Recl amation 21 22 23 24 ( Reclam ation ) and the California Department of Water Resource s ( DWR ). Doc. 237. Real Party in Interest, Californ ia Departmen t of Water Resources ( DWR ) filed a 25 brief in support of Plaintiffs motion. 26 Federal Defendants o ppose. 27 replied. 28 Doc. 274. Docs. 295 & 300. 2 Doc. 246 . Plaintiffs and DWR 1 Federal Defendants c ross- move for summary j udgment on 2 this cla im, arguing that the RPA satisfies the 3 requirem ents of the ESA and its regulations becau se: 4 5 6 7 (1) Recl amation and FWS worked together througho ut the consu ltation process, to identify an RPA t hat will avo id jeopardy ; 8 (2) If t he entire record is examined, the R PA 9 satisfie s all of the criteria set forth in the 10 ESA and its regulati ons; and (3) the ESA does 11 not perm it Federal D efendants to balance the 12 13 14 15 16 survival of the Delt a smelt against the potentia l economic e ffects of the RPA. Doc. 231 . Plaintif fs oppose th is motion, insisting that: 17 (1) FWS cannot satis fy the relevant requirements 18 by argui ng that they collaborated with 19 Reclamat ion because: 20 21 22 23 24 (a) FWS has ultimate responsibility for the RPAs, (b) FWS has a duty t o examine the relevant requirem ents on the face of the BiOp, and 25 (c) FWS improperly a nd without explanation 26 disregar ded RPAs off ered by DWR without 27 explanat ion; 28 3 1 (2) Fede ral Defendan ts fail to otherwise show 2 that the RPA satisfi es the requirements of law; 3 and 4 (3) Fede ral Defendants have a duty, not 5 performe d, to assess the feasibility of the RPA. 6 Doc. 273 . DWR filed its own, complimentary oppos ition. 8 Doc. 282 . Federal D efendants filed a reply. 9 Plaintif fs also move to strike Federal Defendants cross 10 motion. 7 Doc . 296. Doc. 284. 11 12 II. STATUTOR Y/REGULATORY FRAM EWORK 13 Section 7 of the ESA pre scri bes the steps that 14 federal agencies mus t take to ensure that their a ctions 15 do not j eopardize en dangered wildlife and flora. 16 National Ass n. of H omebuilders v. Defenders of W ildlife, 17 551 U.S. 644, 651 (2 007). 18 19 20 21 Section 7(a)(2) provid es th at [e]ach Federal agen cy shall, in consultation wit h and with the assistance of the Secretary [of Commerce or the Interior ], insure th at any action authorized, fun ded, or 22 carried out by such agency (hereinafter in this s ectio n 23 referred to as an a gency action ) is not likely to 24 jeopardi ze the conti nued existence of any endange red 25 species or threatene d species. 26 27 28 16 U.S.C. § 1536(a)(2 ). Each Fe deral agency shall review its actio ns at the earliest possi ble time to determine whether any action 4 1 may affe ct listed sp ecies or critical habitat. 2 determin ation is mad e, formal consultation is req uired. 3 50 C.F.R . § 402.14. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I f such a Formal c onsultation involves a process of sharing informat ion between the actio n agency and the wildlife agency ( in this case FWS). Id. Amon g other things, during f ormal consul tation, FWS is directed to: (1) Revi ew all relev ant information provided by the Fede ral agency o r otherwise available. Such review m ay include a n on- site inspect ion of the action a rea with rep resentatives of the Federal agency a nd the appli cant. (2) Eval uate the cur rent status of the listed species or critical habitat. (3) Eval uate the eff ects of the action and cumulati ve effects o n the listed species or critical habitat. (4) Form ulate its bi ological opinion as to whether the action, taken together with cumulati ve effects, is likely to jeopardize the continue d existence of listed species or result in the d estruction o r adverse modification of critical habitat. (5) Disc uss with the Federal agency and any applican t the Servic e s review and evaluation conducte d under para graphs (g)(1)-(3) of this section, the basis f or any finding in the biologic al opinion, and the availability of reasonab le and prude nt alternatives (if a jeopardy opinion is to be issued) that the agency a nd the appli cant can take to avoid violatio n of section 7(a)(2). The Service will utilize the expertis e of the Federal agency and any appl icant in ide ntifying these al ternatives. If reque sted, the Se rvice shall make availa ble to the F ederal agenc y the draft biological opinion for the purp ose of analyzing the 5 1 reasonab le and prude nt alternatives.... 2 *** 3 (8) In f ormulating i ts biological opinion, any reasonab le and prude nt alternatives, and an y reasonab le and prude nt measures, the Service will use the best sc ientific and commercial data availabl e and will g ive appropriate consider ation to any beneficial actions taken by the Fede ral agency o r applicant, including any actions taken prior to the in itiation of consulta tion. 4 5 6 7 8 9 10 11 12 13 14 15 50 C.F.R . § 402.14(g ). At the c onclusion of the consultation process, the Secretar y shall prov ide to the Federal agency and the applican t, if any, a written statement setting fo rth the Secretar y s opinion, and a summary of the information on which th e opinion is based, detailing how the age ncy 16 action a ffects the s pecies or its critical habita t. 17 U.S.C. § 1536(b)(3)( A). 18 16 commonly known as a biological opinion. This written statement i s 19 Section 7(b)(3)(A) f urther provides that, [i]f 20 jeopardy or adverse modification is found, the Se cretary 21 22 23 24 shall su ggest those reasonable and prudent altern atives which he believes wo uld not violate subsection (a )(2) of [Section 7] and can be taken by the Federal agenc y ... in 25 implemen ting t he agency action. 26 prudent alternatives refer to alternative actions 27 identifi ed during fo rmal consultation [1] that ca n be 28 6 Id. Rea sonabl e and 1 implemen ted in a man ner consistent with the inten ded 2 purpose of the actio n, [2] that can be implemente d 3 consiste nt with the scope of the Fede ral agency s legal 4 5 6 7 authorit y and jurisd iction, [3] that is economica lly and technolo gically feas ible, and [4] that the Direct or believes would avoid the likelihood of jeopardizi ng the 8 continue d existence of listed species or resulting in the 9 destruct ion or adver se modification of critical h abitat. 10 50 C.F.R . § 402.02 ( the four RPA requirements ). 11 12 13 14 15 Where th e Secretary concludes that an action, or the implemen tation of an RPA, will result in incident al take of liste d species, but th at take will not v iolate sect ion 7(a)(2) s prohibitio n against jeopardy and/or adv erse 16 modifica tion, the Se cretary must provide the acti on 17 agency w ith a writte n statement that (1) specifi es the 18 impact o f such incid ental taking on the species and (2) 19 specifi es those reasonab le and prudent mea sures 1 that 20 the Secr etary consid ers necessary or appropriate to 21 22 23 24 25 26 27 28 minimize such impact , and (3) sets forth the te rms and conditio ns (includin g, but not limited to, report ing 1 Re as on ab le a nd p ru de nt me as ur es , a s d is ti ng ui sh ed f ro m rea so na bl e and p ru de nt a lt er na ti ves , r ef er t o th os e ac ti on s th e Di rec to r bel ie ve s ne ce ss ar y or ap pr op ri at e t o m in im iz e th e im pa ct s, i. e. , amo un t or e xt en t, o f inc id en ta l ta k e. 50 C .F .R . § 40 2. 02. Th e reg ul at io ns f ur th er e xpl ai n th at [ r]e as on ab le a nd p ru de nt me as ur es , alo ng w it h th e te rm s and c on di ti on s th at i mp le me nt t he m, ca nn ot alt er t he b as ic d es ig n, lo ca ti on , s cop e, d ur at io n, o r ti min g of t he act io n an d ma y in vo lv e o nl y mi no r c han ge s. 5 0 C. F. R. § 402 .1 4( i) (2 ). 7 1 requirem ents) that m ust be complied with by the [ actio n 2 agency] to implement the measures specified... 3 § 1563(b )(4)(C). 4 referred to as an I ncidental Take Statement ( I TS ). 2 5 The impl ementing reg ulations echo these requireme nts, 6 7 mandatin g that a bio logical opinion i nclude : (1) A su mmary of the information on which the opinion is based; 8 9 (2) A de tailed discu ssion of the effects of the action o n listed spe cies or critical habitat; and 10 11 (3) The Service s op inion on whether the action is likel y to jeopardize t he continued exist ence of a lis ted species or result in the destruction or adver se modificat ion of critical habitat (a jeopard y biological opinion ); or, the action is not l ikely to jeo pardize the continued existenc e of a liste d species or result in the destruct ion or adver se modification of critical habitat (a no jeopa rdy biological opinion). A jeopard y biologica l opinion shall include reasonab le and prude nt alternatives, if any. If the Serv ice is unabl e to develop such alternat ives, it wil l indicat e that to the best of its k nowledge the re are no reasonable and prudent alternatives . 12 13 14 15 16 17 18 19 20 21 Th is written statement is commo nly 50 C.F.R . 402.14(h)( emphasis added). 22 The regu lations furt her specify that an ITS must: 23 (i) Spec if[y] the im pact, i.e., the amount or extent, of such inci dental taking on the species; 24 25 26 2 27 28 An y ta ki ng t ha t is i n c om pl ia nc e w ith t he t er ms o f th e ITS sh al l not b e co ns id er ed . .. a pr oh ib it ed tak in g of t he s pe ci es co nc er ne d. § 1 53 6( o) (2 ). 8 1 (ii) Spe cif[y] those reasonable and prudent measures that the Di rector considers necessary or appro priate to mi nimize such impact; 2 3 *** 4 (iv) Set [] forth the terms and conditions (includi ng, but not limited to, reporting requirem ents) that must be complied with by the Federal agency or an y applicant to implement the measures specified u nder paragraph (i)(1)(ii) and (i)( 1)(iii) of t his section; and 5 6 7 8 (v) Spec if[y] the pr ocedures to be used to handle o r dispose of any individuals of a species actually taken. 9 10 11 50 C.F.R . § 402.14(i )(1)(i)-(v). In addit ion, FWS and NMFS issued a Consultation 12 13 Handbook that prov ides internal guidance and 14 establis hes national policy for conducting consul tation 15 and conf erences purs uant to Section 7 of the Endangere d 16 17 18 19 20 Species Act of 1973, as amended. Plaintiffs Re quest for Judi cial Notice ( PRJN ), Exh. B (FWS/NMFS: Procedur es for Condu cting Consultation and Confer ence Activiti es Under Sec tion 7 of the Endangered Spec ies 21 Act, at Foreword, ( March 1998))( Consultation 22 Handbook ). 3 23 24 25 The Cons ultation Han dbook explains that during th e formal c onsultation period, FWS should meet or communic ate with the action agency ... to gather any 26 3 27 28 Pl ai nt if fs re qu es t for j ud ic ia l n oti ce o f se ve n do cu me nts , al l of whi ch a re p ub li c re co rds t he c on te n t o f wh ic h ar e no t in di sp ut e, i s GRA NT ED . D oc . 24 0. The y ar e ad mi s sib le t o pr ov e th ei r exi st en ce and c on te nt , bu t no t the t ru th o f t he ma tt er s as se rt ed t her ei n. 9 1 addition al informati on necessary to conduct the 2 consulta tion. 3 other th ings, the fo rmal consultation period shou ld be 4 5 6 7 8 Cons ultation Handbook at 4-6. Among used to develop rea sonable and prudent alternati ves to an actio n likely to result in jeopardy or adverse modifica tion.... Id. Consulta tion should be undertaken cooperatively with 9 the acti on agency an d any applicant, thus allowin g the 10 Services to develop a better understanding of dir ect and 11 indirect effects of a proposed action and any cum ulative 12 13 14 15 effects in the actio n area. Action agencies also have the project expertise ne cessary to help identify reas onable and prud ent alternat ives, and reasonable and prud ent 16 measures . Other inte rested parties (including the 17 applican t, and affec ted State and tribal governme nts) 18 should a lso be invol ved in these discussions....T hese 19 cooperat ive efforts should be documented for the 20 administ rative recor d. 21 22 23 24 25 26 27 28 Id. The Hand book contain s a section on RPAs, which provides as follows: Reasonab le and prude nt alternatives This sec tion lays ou t reasonable and prudent alternat ive actions, if any, that the Servi ces believe the agency o r the applicant may take to avoid th e likelihood of jeopardy to the species or destr uction or ad verse modification of designat ed critical habitat (50 CFR § 10 1 2 3 4 5 6 7 8 9 10 11 12 13 402.14(h )(3)). When a reasonable and prudent alternat ive consists of multiple activities, it is imper ative that t he opinion contain a thorough explanation of how each component of the alte rnative is e ssential to avoid jeopardy and/or a dverse modif ication. The action agency and the applicant (i f any) should be given every opportun ity to assist in developing the reasonab le and prude nt alternatives. Often they are the only ones wh o can determine if an alternat ive is withi n their legal authority and jurisdic tion, and if it is economically and technolo gically feas ible. If adopt ed by the action agency, the reasonable and prud ent alternat ives do not undergo subseque nt consultat ion to meet the requirements of secti on 7(a)(2). The action agency s acceptan ce in writin g of the Services reasonab le and prude nt alternative concludes the consultation process. 14 Section 7 regulation s (50 CFR §402.02) limit reasonab le and prude nt alternatives to: 15 ¢ alternatives t he Ser vices believe will avoi d the likelihood of je opard y or adverse modification, ¢ alternatives t hat ca n be implemented in a manner consistent with the intended p urpose of the action, ¢ alternatives t hat ca n be implemented consistent wit h the scope of the action agency s legal autho rity and jurisdiction, and ¢ alternatives t hat ar e eco nomically and technologicall y feas ible. 16 17 18 19 20 21 22 23 24 25 26 27 28 If the S ervices conc lude that certain alternat ives are ava ilable that would avoid jeopardy and adverse modification, but such alternat ives fail to meet one of the other three elements in the defi nition of reasonable and prudent alternative, the Services should document the alterna tive in the biolo gical 11 1 2 3 4 5 6 7 8 opinion to show it w as considered during the formal c onsultation process. This information could pr ove importan t during any subsequent proceedi ng before th e Endangered Species Committe e (establish ed under section 7(e) of the Act), wh ich reviews requests for exemptions from the requ irements of section 7(a)(2). Although a strong ef fort should always be made to ident ify reasonab le and prudent alternatives, in some cases, no al ternatives are available to avoid je opardy or ad verse modificatio n. 9 Examples include cas es in which the corrective action r elies on: 10 ¢ an alternative not u nder consideration (e.g., locatin g a pr oject in uplands instea d of requiring a Corps perm it to fill a wetland); ¢ actions of a t hird p arty not involved in the proposed actio n (e.g ., on ly the County, which is not a party to t he consultation, has the author ity to regu late speed limits) ; ¢ actions on lan ds ove r whi ch the action agency has no jurisd ictio n or no residual authority to e nforce comp liance; and ¢ data not avail able o n whi ch to base an alternative. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In these cases, a st atement is included that no reasonab le and prude nt alternatives are availabl e, along wit h an explanation. When data are not available to support an alternative, the explanat ion is that accor ding to the best availabl e scientific and commercial data, there are no r easonable an d prudent alternatives to the acti on undergoin g consultation. The Services are comm itted to wor king closely with action agencies and applica nts in developing reasonable and prud ent alternat ives. The Services will, in most cas es, defer to the action agency s expertis e and judgme nt as to the feasibility of an alter native. When the agency maintains that the alte rnative is n ot reasonable or not 12 1 prudent, the reasoni ng for it s position is to be provided in writing for the administrative record. The Services retain the final decision on which reasonable and prudent alternatives are included in the biol ogical opinion. When necessar y, the Servi ces may question the agency s view of the scope of its authorities to implemen t reasonable and prudent alternatives. 2 3 4 5 6 Consulta tion Handboo k, 4- 41 - 4-42. 7 III. FACTUAL BACKGR OUND 8 The 2008 BiOp conclu ded that the coordinated 9 10 operatio ns of the CV P and SWP, as proposed, are l ikely to 11 jeopardi ze the continued existence of the delta s melt 12 and adv ersely modif y delta smelt critical habita t. 13 BiOp 276 -78. 4 14 15 16 17 As required by law, the BiOp includes an RPA desi gned to allo w the projects to continue op erating without causing jeop ardy or adverse modification. 279. BiOp Th e RPA includ es various operational compon ents 18 designed to reduce e ntrainment of smelt during cr itical 19 times of the year by controlling water flows in t he 20 Delta. 21 22 23 24 25 26 27 28 BiOp 279-85. Componen t 1 (Protect ion of the Adult Delta Smelt Life Stage) c onsist s of two Actions related to O MR flo ws: Action 1 , requiring OMR flows to be no more negat ive than -2,000 c ubic feet pe r second ( cfs ) on a 1 4-day average and no m ore negative than -2,500 cfs for a 5-day running 4 Al th ou gh t he B iO p is pa rt o f th e a dmi ni st ra ti ve r ec or d for e as e of ref er en ce , it s in te rn al pa ge r ef er e nce s, r at he r th an A R ref er en ce s, wil l be u se d he re in . 13 1 average, is triggere d during low and high entrainment 2 risk per iods based o n physical and biological mon itoring, 3 BiOp 281 , 329; Actio n 2, setting maximum negative flows 4 5 6 7 for OMR, is triggere d immediately after Action 1 ends or if recom mended by th e SWG, BiOp 281-282, 35 2. Under Co mponent 2 (Protection of Larv al and Juvenile 8 Delta Sm elt), OMR fl ows must remain between -1,250 and 9 -5,000 c fs (specific flows to be dete rmined by FWS) 10 beginnin g when Compo nent 1 is completed, when Del ta water 11 temperat ures reach 1 2° Celsius, or when a spent f emale is 12 13 14 15 16 17 detected in trawls o r at salvage facilities. 357-358. BiO p 282, Spec ific flows are maintained until June 30 or when the Clifton Cou rt Forebay water temperature reaches 25° Cels ius. BiOp 28 2, 368. Componen t 3 (Improve Habitat for Delta Smelt Grow th 18 and Rearing), requires sufficient Delta outflow to 19 maintain average mix ing point locations of Delta outflow 20 and estu arine water inflow ( X2 ) from September to 21 22 23 24 25 December , depending on water year type, in accord ance with a s pecifically described adaptive management process overseen by FWS. BiOp 282-283, 36 9. Under Co mponent 4 (H abitat Restoration), DWR is t o 26 create o r restore 8, 000 acres of intertidal and s ubtidal 27 habitat in the Delta and Suisun Marsh within 10 y ears. 28 14 1 2 3 4 5 6 7 BiOp 283 -284, 379. Under Co mponent 5 (M onitoring and Rep orting), the Projects gather and report information to ensure proper implemen tation of th e RPA actions, achievement of physical results, an d evaluation of the effective ness of the acti ons on the t argeted life stages of delta smelt so 8 that the actio ns can be refined, if needed. 9 285, 328 , 375, 37. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 BiOp 284- The BiOp describes t he regulatory definition of reasona ble and prud ent alternatives and the fou r RPA factors: The regu lations (50 CFR 402.02) implementing section 7 of the Act define r easonable and prudent alternatives (RPA) as alternative actions, identified during formal consultation, that 1) can be imple mented in a manner consiste nt with the intended purpose of the action; 2) can be im plemented consistent with the scop e of the action a gency s (i.e. Reclamat ion s) legal authority and jurisdiction; 3) are e conomically and technologically feasible ; and, 4) wo uld, the Service believes, avoid th e likelihood of jeopardizing the continue d existence of listed species or resultin g in the destruction or adver se modifica tion of crit ical habitat. BiOp 279 . It is un disputed tha t the BiOp does not explicitl y 25 discuss the first th ree factors -- co nsistency with the 26 purpose of the actio n; consistency with the legal 27 authorit y and jurisd iction of the act ion ag ency; and 28 15 1 economic and technol ogical feasibility -- at all. 2 BiOp at 279-28 5 & Attachment B. 3 consist ent with the intended purpose of the acti on, 4 5 6 7 See None of the terms jurisdi ction, leg al authority, or economical ly and technolo gically feasible, are used i n the RPA section of the BiOp . These mot ions focus on the question: If no 8 analysis or discussi on of these RPA issues is inc luded in 9 the BiOp itself, is the BiOp facially arbitrary, 10 capricio us, and/or c ontrary to law? 11 extent t hese factors are evaluated elsewhere in t he 12 Whether and to what administ rative recor d is for the next round of mo tions. 13 IV. STANDARD OF DE CISION 14 15 Summary judgment is appropriate where there are n o 16 genuine issues of ma terial fact and the moving pa rty is 17 entitled to judgment as a matter of law. 18 19 20 21 56(c). F ed. R. Civ. P. Plaintiffs RPA claim against Federal Def endants is broug ht under the ESA s citizen suit provision , and is governed by APA sect ion 706, because the ESA cont ains no 22 independ ent standard of review. 23 Clark, 7 33 F.2 d 605, 609 (9th Cir. 1984). 24 requires that the ag ency action be upheld unless it is 25 found to be arbitra ry, capricious, an abuse of 26 27 28 Village of False Pass v. The AP A discreti on, or other wise not in accordance with l aw, or without observance of procedure requ ired by law. 16 5 1 U.S.C. § 706(2)(A), (D). 2 ensure that the age ncy considered all of the rel evant 3 factors and that its decision contained no clear error of 4 5 6 7 judgment . The inquiry is designed to Pa c. Coast Fed n of Fishermen s Ass ns v. NMFS, 26 5 F.3d 1028, 1034 (9th Cir. 2001). Agency act ion should o nly be overt urned if the agency has reli ed on 8 factors which Congre ss has not intended it to con sider, 9 entirely failed to c onsider an important aspect o f the 10 problem, offered an explanation for its decision that 11 runs cou nter to the evidence before the agency, o r is so 12 13 14 15 implausi ble that it could not be ascribed to a di fference in view or the produ ct of agency expertise. Id. In sum, a c ourt must as k whether the agency conside red the 16 relevant factors and arti culated a rational conne ction 17 between the facts fo und and the choice made. 18 19 20 21 22 Id. V. DISCUSSI ON A. Motion t o Strike DWR s Briefs. Defendan t-Inte rvenor s, a coalition of envir onmental organiza tions, move to strike DWR s brief on the ground 23 that Fed eral Rule of Civil Procedure 56 onl y permits a 24 party c laiming reli ef or a party against whom relief 25 is sough t may move for summary judgment. 26 This mot ion is witho ut merit. 27 28 Doc. 2 99. First, DWR is not moving for summ ary judgment , it is merely supporting Pla intiffs 17 1 motion. 2 stipulat ion regardin g procedures for briefing the instant 3 motions, which speci fically provides for DWR s 4 5 6 7 Second, Def endant-Intervenors sign ed a particip ation in bri efing. See Doc. 148. Defend ant- Interven ors are esto pped from taking a position inconsis tent with th is stipulation. See MWS Wire Indu s. 8 Inc., v. Cal. Fine W ire Co., 797 F.2d 799, 803 (9 th Ci r. 9 1986). 10 DENIED. 11 within i ts oppositio n, is likewise wi thout merit. 12 Defendant-Interve nors motion to st rike i s Federal Def endants similar complaint, a sserted Doc . 274 at 3 . 13 14 15 16 17 B. Plaintif fs Motion t o Strike Federal Defendants Cross-Mo tion. Plaintif fs move to s trike Federal Defendants ent ire cross-mo tion for sum mary judgment on the RPA claims on 18 the grou nd that it e xceeds the scope of non-recor d claims 19 set for early resolu tion in the amended Schedulin g Order. 20 Doc. 284 . 21 provided that: 22 23 24 25 26 27 28 The Secon d Amendment to the Scheduling order The movi ng parties m ay present their RPA claims with the early dispo sition claims. RPA claims that are to be heard with ear ly dispositive motions are to be li mited to facial c hallenges that add ress whether the requirements of the law have bee n met, witho ut the necessity of a determin ation of dis puted factual issues. Doc. 144 at 3 (empha sis added). The purpose of t his limitati on was to en sure that arguments and claim s 18 1 requirin g reference to the administrative record would 2 not be h eard until after any issues regarding the scop e 3 of the a dministrativ e record ( AR ), discovery, a nd 4 expert w itnesses wer e resolved. 5 Federal Defend ants first major argument, t hat 6 7 Reclamat ion and FWS worked together, through the 8 consulta tion process , to identify an RPA that wou ld avoid 9 jeopardy , makes freq uent and extensive references to the 10 contents of the AR. 11 for Fede ral Defendan ts second major argument, th at the 12 13 14 15 Doc. 231 at 5-13. The same is true RPA sati sfies all of the requirements of the ESA and its implemen ting regulat ions, whi ch refer to and rely on t he AR. See id. a t 13-21. Neither of th ese ar guments may be 16 consider ed at this t ime, as the compl etenes s and content 17 of the A R remains in dispute. 18 Federal Defendants s uggest that neither their own nor 19 Plaintif fs RPA moti ons can be heard without rev iew of 20 the admi nistrative r ecord, and note that is why the 21 22 23 24 Federal Defendants o bjected to the briefing of th ese claims a t this stage of the case. Doc. 309 at 1 . But, Plaintif fs have fra med their facial RPA claim very 25 narrowly , asserting that the ESA and its implemen ting 26 regulati ons require FWS to make certain findings on the 27 face of the BiOp. 28 T he claim that such findings a re 19 1 legally required can now be resolved. 2 3 4 5 6 7 Federal Defendants t hird major argument, that the ESA does not allow Recla mation and FWS to balance the survival of the delt a smelt against the potential economic effects of the R PA, is a mer its response to allegati ons in Plain tiffs complaints that FWS wa s 8 required to evaluate the economic impact of the R PA and 9 determin e on the mer its whether the economic impa ct 10 renders the RPA eco nomically infeasible or whet her 11 more ec onomically f easible, less cos tly alternatives 12 13 14 15 exist th at would pre vent jeopardy with less econo mic impact. ¶95(c). See e.g., Doc. 292, San Luis Comp laint, at Although th is argument makes no referenc e to the 16 AR, the issue is int imately intertwined with meri ts 17 argument s based on t he record and will be address ed in 18 the seco nd round of summary judgment motions. 19 prematur e to rule on the economic effects argumen t at 20 this tim e, except to say, it cannot now be decide d as a 21 matter o f law 22 Plaintif fs motion t o strike is GRANT ED WITHOUT 23 24 PREJUDIC E to Federal Defendants renewal of their motion 25 on these grounds in the next round of briefing. 26 // 27 // 28 It is 20 1 C. Plaintif fs and DWR s Motion for Summary Judgment . 2 1. Scope of Motion. 3 Plaintif fs and DWR a rgue that, to determine whether 4 an RPA m eets the joi nt regulations four requirem ents 5 must be discussed an d analyzed on the face of a j eopar dy 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 biologic al opinion. If such a requirement exists , it is undisput ed that the BiOp s language contains no s uch discussi on. Federal Defendants r espond that Plain tiffs and D WR s argument goes much f urther, asserting: The prem ise of the m otions for summary judgment submitte d by the Pla intiffs and [DWR] is that the law requires the United States Fish and Wildlife Service [FW S] to follow an elaborate series o f procedures when it develops an RPA, and that it failed t o follow those procedures here. Th e Plaintiffs and DWR argue, for example, that the Service is required by law to identify a range of potential RPAs and then undertake a detailed , independent analysis to determine whether they satisfy the four criteria set out in the r egulatory de finition (at 50 C.F.R. § 402.02). Plaintiffs Memorandum of Points and Authorit ies in Suppo rt of Motion for Summary Adjudica tion of Reas onable and Prudent Alternat ive Issue, Docket No. 237 (Aug. 3, 2009) ( Pl. Me m. ); Real Party in Interest Californ ia Departmen t of Water Resources Points and Auth orities in S upport of Plaintiffs Motion for Summ ary Adjudica tion on Reasonable and Prudent Alternative Issue, Docket No. 246 ( Aug. 3, 2009) ( DWR Mem. ). This analysis, according to the P laintiffs, m ust be based on a broad suite of factors, i ncluding the potential effects of the RPAs on political and business interest s and a full assessment of the potential economic costs and b enefits to affect ed communit ies. Pl. Mem . at 19. They also claim that the Service mus t present this analysis on 21 1 2 3 4 5 6 7 the face of the bio logical opinion itself and not in t he administr ative record. Pl. Mem. at 20; DWR Mem. at 1. T he Plaintiffs then take their ar gument to it s logical conclusion by arguing that, once t he Service has identified a range of potential R PAs and evaluated their economic effects, it must choose the least costly R PA that bes t suits the interests of business . Pl. Mem. a t 19. Doc. 274 at 1. Fede ral Defendants assert that Pl aintiffs 8 maintain FWS must f ollow an elaborate series of 9 procedur es when it d evelops an RPA. 10 deny the y so contend : 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 However, Pl aintiffs Plaintif fs opening brief sets forth the limited claim th at Defendants violated the Joint Consulta tion Regulat ions by failing to articula te, on the f ace of the BiOp, any rational connection between the facts considered and conc lusions reac hed in determining whether and how the RPA adop ted in the 2008 BiOp satisfie s the definitional requirements of the Joint Co nsultation R egulations. See Pltfs. Memo in Suppo rt of MSA at 1-2, 9-20. Hence , Defendan ts straw ma n argument, repeated ad nauseum, that Plaint iffs demand a burdensome analysis where the Service must identify a range of potential RPAs and weigh the economi c costs and benefits of that range of RPAs is misleading a nd factually incorrect. See, e.g., Fe d. Opp. at 1, 3-8, 12 , 18-21, 23, 24. Plaintif fs have alre ady acknowledged that the scope of what must b e analyze d in adopting an RPA in a ccordance wi th the ESA and Section 402.02 i s an issue t o be addressed in later phases o f this case based on the entire administ rative recor d. See Pl tfs. Mot. to S trike Fed. MSJ at 1:14-17; Pltfs. Opp. to F ed. MSJ at 2:16-20. Nor have Plaintiffs asserted that the Service is required to identify multiple RPAs and pick the one that imposes the least cost on business interest s. Fed. Opp. at 4:10-11. While that 22 1 interpre tation may b e the logical conclusion of the deci sions in Sw. Ctr. For Biological Diversit y v. U.S. Bu reau of Reclamation (Southwe st Center), 143 F.3d 515 (9th Cir. 1998) and West lands Water Dist. v. United States of America, 850 F. Supp . 1388 (E.D. Cal. 1994), it is not t he argument raised by Plaintiffs at this stage of the proceed ings. Ins tead, Plaintif fs simply a ssert that F ederal Defendants were required to analyze the RPA requirements of Section 402.02 and p resent their determinations somewher e within the text of the BiOp. See Pltfs. M emo in Suppo rt of MSA at 1-2, 9-20. Inclusio n of such a determination is even more critical where, as h ere, the Service ultimately imposed its RPA over the objections of the Bureau a nd DWR. Pltf s. Opp. to Fed. MSJ at 1112. 2 3 4 5 6 7 8 9 10 11 12 See Doc. 295 a t 3. 13 their mo tion s scope . 14 of wheth er Federal D efendants were required to pr esent 15 analysis of all four RPA requirements of 50 C.F.R . § 16 17 18 Plaintiffs are entitled to define They advance only the narr ow issue 402.02 w ithin the te xt of the BiOp; no other issu e is before t he court for decision. 19 2. 20 Both par ties cite pa ssages from the Consultation 21 Handbook to support and oppose the contention tha t FWS is 22 23 24 25 Consulta tion Handboo k. required to analyze the RPA requirements of 50 C. F.R. § 402.02 o n the face o f the BiOp. The Consultation Handbook sets forth guidance and policy ma de in 26 pursuanc e of officia l duty, based upon more speci alized 27 experien ce and broad er investigations and informa tion 28 than is likely to co me to a judge in a particular case, 23 1 and con stitute a bo dy of experience and informed 2 judgment to which co urts and litigants may proper ly 3 resort f or guidance. 4 5 6 7 8 9 Pa c. C oast Fed n of Fisher men s Ass ns v . Gutierrez, 606 F. Supp. 2d 1195, 1209 (E.D. Cal. 200 8) (citing Skidmore v. Swift & Co., 323 U .S. 1 34, 139-140 (1944) ). Plaintif fs note the general standard regarding biologic al opinions: 10 Clarity and concisen ess are extremely importan t.... A biol ogical opinion should clearly explain the proposed project, its impacts on the affec ted species, and the Services recommenda tions. It should be written so the g eneral public cou ld trace the path of logic to the biologi cal conclusion and complete enough t o withstand the rigors of a legal review. 11 12 13 14 15 16 Consulta tion Handboo k at 1-2. 17 clarity and concisen ess serve the overarching req uirement 18 that a B iOp should clear ly explain the pro posed project, 19 its impa cts on the a ffected species, and the Serv ices 20 recommen dations. 21 22 23 24 These genera l goal s of I t does not specifically manda te a discussi on of the fi rst three RPA requirements. Other po rtions of th e Handbook instruct FWS to wo rk closely with t he action agency, because the actio n age ncy 25 possesse s much of th e expertise necessary to help develop 26 RPAs. 27 consulta tion period, FWS should meet or communic ate with 28 T he Handbook explains that during the form al 24 1 the acti on agency .. . to gather any additional 2 informat ion necessar y to conduct the consultation . 3 at 4-6. 4 5 6 7 alternat ives to an a ction likely to result in jeo pardy or adverse modification.... : [Consult ation] shoul d be undertaken cooperat ively with t he action agency and any applican t, thus allo wing the Services to develop a better understandi ng of direct and indirect effects of a propose d action and any cumulative effects in the actio n area. Action ag encies also have the project exp ertise necessary to help identify reasonable and prudent alternatives, and reas onable and p rudent measures. Other interest ed parties ( including the applicant, and affected State and t ribal governments) should also be involved in these discussions....Th ese cooperat ive efforts should be documented for the administ rative recor d. 9 10 11 12 13 14 15 17 18 19 20 Among other things, the formal con sultat ion period s hould be use d to develop reasonable and prudent 8 16 Id. Id. Thi s pass age cl early indicates that the acti on agency s hould play a central role in designing th e RPA, and that any coopera tive efforts towa rd such ends shou ld be docum ented for the administrative record. I t says 21 nothing about what R PA-related findings are requi red in 22 the BiOp itself. 23 24 25 26 27 28 The Hand book address es at length the development and document ation of RPA s. this sec tion. The parties cite passages from The e ntire RPA section states: // // 25 1 Reasonab le and prude nt alternatives 2 This sec tion lays ou t reasonable and prudent alternat ive actions, if any, that the Services believe the agency o r the applicant may take to avoid th e likelihood of jeopardy to the spe cies or destr uction or ad verse modification of designat ed critical habitat (50 CFR §402.14( h)(3)). When a reasonable and prudent alternat ive consists of multiple activities, it is imper ative that t he opinion contain a thorough expla nation of h ow e ach component of the alte rnative is e ssential to avoid jeopardy and/or a dverse modif ication. The action agency and the applicant (i f any) should be given every opportun ity to assis t in developing the reasonab le and prude nt alternatives. Often they are the only ones wh o can determine if an alternat ive is withi n their legal authority and jurisdic tion, and if it is economically and technolo gically feas ible. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 If adopt ed by the ac tion agency, the reasonable and prud ent alternat ives do not undergo subseque nt consultat ion to meet the requirements of secti on 7(a)(2). The action agency s acceptan ce in writin g of the Services reasonab le and prude nt alternative concludes the consulta tion process . Section 7 regulation s (50 CFR §402.02) limit reasonab le and prude nt alternatives t o: ¢ alternatives t he Ser vices believe will avoi d the likelihood of je opard y or adverse modification, ¢ alternatives t hat ca n be implemented in a manner consist ent wi th th e intended purpose of the action, ¢ alternatives t hat ca n be implemented consistent wit h the scope of the action agency s legal autho rity and jurisdiction, and ¢ alternatives t hat ar e eco nomically and technologicall y feas ible. 21 22 23 24 25 26 27 28 26 1 If the S ervices conc lude that certain alternat ives are ava ilable that would avoid jeopardy and adverse modification, bu t such alternat ives fail to meet one of the other three elements in the defi nition of reasonable and prudent alternative, the Services should document the alterna tive in the biological opinion to show it w as considered during the formal c onsultation process. This information could pr ove importan t during any subsequent proceedi ng before th e Endangered Species Committe e (establish ed under section 7(e) of the Act), wh ich reviews requests for exemptions from the requ irements of secti on 7(a)(2). 2 3 4 5 6 7 8 9 10 11 *** Id. at 4 -41 - 4-42 (emphasis added). 5 12 13 14 15 The firs t sentence e mphasizes the link between RP As and FWS s obligation to ensure that the proposed action does not cause jeopa rdy or adverse modification t o 16 critical habitat. 17 guiding standard f or determination of RPAs. 18 v. Nat l Marine Fish eries Serv., 55 F. Supp . 2d 1 248, 19 1268 (W. D. Wash. 199 9) (rejecting third party s a rgument 20 that NMF S must balan ce the benefit to the species of an 21 22 23 24 25 J eopardy has been found to be the Greenpeace RPA agai nst th e economic and technical burden on an impacted industry, a s inconsistent with the purp oses of the ESA and with cas e law interpreting the Act ). The second s entence tran slates the focus on jeopardy into a 26 5 27 28 Th is s ec ti on c on cl ud es wi th a d is c uss io n of w ha t sh ou ld be d on e whe n no R PA s ar e av ai lab le , a ci rc u mst an ce n ot a pp li ca bl e h er e. 27 1 specific requirement that that the opinion conta in a 2 thorough explanation of how each component of the 3 alternat ive is essen tial to avoid jeopardy and/or adverse 4 5 6 7 8 9 modifica tion (empha sis added), when an RPA consi sts of multiple parts. so. Fed eral Defendants argue the BiO p does In contrast, th ere is no explicit requ iremen t tha t the BiOp discuss any of the other three RPA requi rements. The latt er part of t he first paragraph reemphasiz es 10 the cent ral role of the action agency in developi ng RPAs, 11 noting t hat [o]ften they are the only ones who c an 12 13 14 15 determin e if a n alternative is within their legal authorit y and jurisd iction, and if it is economic ally and technolo gically feas ible. This language omits a ny 16 requirem ent that FWS , as consulting agency, must make 17 findings as to the l egal authority and jurisdicti on of 18 the acti on agency, a nd/or the economic and techno logical 19 feasibil ity of the R PA. 20 that the consultatio n process is not complete unt il the 21 22 23 24 25 26 27 28 The second paragraph exp licates action a gency accept s the RPA in writing. The Hand book quotes 50 C.F.R. § 402.02 s de finition of the t erm reasona ble and prudent alternative and states: If the S ervices conc lude that certain alternat ives are ava ilable that would avoid jeopardy and adverse modification, but such alternat ives fail to meet one of the other three 28 1 elements in the defi nition of reason able and prudent alternative, the Services should document the alterna tive in the biological opinion to show it w as considered during the formal c onsultation process. This information could pr ove importan t during any subsequent proceedi ng before th e Endangered Species Committe e (establish ed under section 7(e) of the Act), wh ich reviews requests for exemptions from the requ irements of section 7(a)(2). 2 3 4 5 6 7 8 9 10 11 Id. at 4 -41. This l anguage concerns situations i n which FWS conc ludes that an RPA will avoid jeopar dy and /or adverse modification , but will not meets the othe r three RPA requ irements. I n such a case, that RPA must be 12 document ed in the Bi Op to facilitate subsequent 13 proceedi ngs before t he Endangered Species Committ ee 14 ( ESC ). 15 16 17 18 19 20 Plaintif fs arg ue tha t this language supports impo sing a requir ement that t he BiOp contain explicit find ings with res pect to all four RPA requirements wheneve r an RPA is propo sed, because failing to include such find ings would fa il to facil itate proceedings befo re the ESC. 21 See Doc. 237 a t 10. 22 be evalu ated by cons idering the purpose of the ES C and 23 the 1978 amendments to the ESA that created the E SC. 24 // 25 26 27 28 The efficacy of this assertion can // // 29 The ESC and Related Legislative History. 6 1 3. 2 The ESC was added wi th the 1978 amend ments to the 3 ESA. 4 the Supr eme Court s ruling in TVA v. Hill, 437 U.S. 15 3 5 6 7 8 Af ter construc tion of the Tellico Dam was h alted by (1978), Congress sou ght to introduce some flexib ility into the Act. 7 After competing Senate (S. 2899) and House (H .R. 14 104) bills were reconciled, the final bill 9 adopted two signific ant changes to the ESA. 10 reaching a jeopardy conclusion, the Secretary of the 11 Interior or Commerce is required to suggest RPA s which 12 [s]/he b elieves wou ld avoid jeopardy and/or adverse 13 modifica tion. 14 17 18 19 20 21 22 23 24 25 26 27 28 16 U. S.C. § 1536(b)(3)(A). The stat ute did not define term reasonable and 15 16 Firs t, upon prudent alternative. The House report emphasize d that 6 Wh er e th e me an in g of a st at ut e or reg ul at io n is u nc le ar , r es or t to leg is la ti ve h is to ry i s a pp ro pr ia te . O re go n Ad vo ca cy C tr . v . Mi nk , 322 F .3 d 11 01 , 11 14 ( 9th C ir . 20 03 ) . He re , Co ng re ss h as no t dir ec tl y de fi ne d th e ter m r ea so na b le an d pr ud en t al te rn ati ve in the E SA , no r do es t he st at ut e di re c tly a dd re ss t he q ue st ion pre se nt ed b y th es e cr oss m ot io ns , t hat t he B iO p it se lf , rat he r th an the A R, m us t in cl ud e a d et ai le d an a lys is o f th e th re e ad dit io na l ele me nt s of t he d ef in iti on o f an R P A. 7 Co ng re ss ma n Bo we n, t he ma na ge r of the 1 97 8 Am en dm en ts i n t he H ou se , sta te d th e fo ll ow in g in de ba te r eg a rdi ng H .R . 14 10 4: [W] e ha ve a s ta tu te w hic h we h av e l ive d wi th s in ce 1 97 3. I t was a n at te mp t to b al anc e en vi ro nm e nta l an d de ve lo pm en ta l int er es t. I, f ra nk ly , a m of t he o p ini on t ha t it h as n ot be en suc ce ss fu l in t ha t re gar d, a nd I t h ink m os t of t he M em be rs of thi s Ho us e ag re e. Fo r t ha t re as on , we h av e re wr it te n th at leg is la ti on t hi s ye ar , a nd w e ha ve mad e a di li ge nt e ff or t t o tak e in to c on si de ra ti on mo re a cc ur a tel y th e de ve lo pm en t nee ds of th is N at io n. PRJ N, E x. D ( Co ng . Re c. (O ct . 14 , 1 978 ), r ep ri nt ed i n Le g. Hi st or y at 80 1) . 30 1 search for alternat ives in the consu ltatio n process 2 should b e limited to those that are reasonable and 3 prudent. 4 5 6 7 The commi ttee does not intend that the Secretar y and the Fe deral agency should, at the consulta tion stage, be required to review all pos sible alternat ives to the agency action including those 8 inconsis tent with th e project s objectives and outside of 9 the Fede ral agency s jurisdiction. 10 Rep. No. 95-16 25, reprinted in A Legislative History o f 11 the Enda ngered Speci es Act of 1973, As Amended in 1976, 12 13 14 15 PRJN, Ex. C (H.R. 1977, 19 78, 1979, an d 1980 ( Legis. History ) at 746). Second, the 19 78 Amendments created the ESC (otherwi se known as the God Squad ), a group of mostly 16 Cabinet- level offici als, including th e Secretaries of the 17 Interior , the Army, and Agriculture, as well as t he 18 Administ rator of the Environmental Protection Age ncy and 19 others. 20 authorit y to exempt a project from the ESA s proh ibitions 21 22 23 24 See 1 6 U.S.C. § 1536(e). The ESC was given t he against take, jeopar dy, and adverse modification of critical habitat, if the Committee determines, am ong other th ings, that t he benefits of the agency s action 25 clearly outweigh t he benefits of alternative co urses of 26 action a nd the actio n is of regional or national 27 signific ance. 28 16 U .S.C. § 1536(h)(1)(A)(ii), (i ii). 31 1 The proc edure to inv oke the ESC is as follows. 2 FWS conc ludes during an ESA consultation that an agency 3 action w ould violate Section 7(a)(2) of the ESA, the 4 5 6 7 If action a gency, the G overnor of the State where th e action would oc cur, or a pe rmit or license applicant may apply for an e xemption fro m Section 7(a)(2). 16 U.S.C. § 8 1536(g)( 1). 9 Secretar y of the Int erior (or the Secretary of Co mmerce 10 for spec ies falling under that agency s jurisdict ion) 11 must mak e a thresho ld determination of whether that 12 13 14 15 O nce an application is received, the applicat ion meets th e necessary requirements incl uding whether the action a gency and the exemption appli cant carried out their c onsultation responsibilities ... in 16 good fai th and made a reasonable and responsible effort 17 to devel op and fairl y consider modifications or 18 reasonab le and prude nt alternatives to the proposed 19 agency a ction which would not violate Section 7( a)(2). 20 16 U.S.C . § 1536(g)( 3)(A)(i). 21 22 23 24 If these requireme nts have not been satisfied, the Secretary may deny the applicat ion. 16 U.S .C. § 1536(g)(3)(B). If, how ever, the appl ication passes th is threshold test, the 25 Secretar y, in consul tation with the ESC, holds pu blic 26 hearings on the issu e. 27 28 16 U.S.C. § 1536(g)(4). ESC hear ings are for mal adjudicatory proceedings, 16 32 1 U.S.C. § 1536(g)(4), presided over by an Administ rative 2 law Judg e ( ALJ ), 50 C.F.R. § 452.05(a)(2) . 3 the ALJ have the aut hority to take evidence at th ese 4 5 6 7 The ESC and hearings and may sub poena the attendance and test imony of witnesse s and the pr oduction of documents. 16 U. S.C. § 1536(e)( 9); 5 U.S.C. §§ 554-56. The Secr etary uses the record developed at these 8 9 hearings to develop a report to present to the ES C. 16 10 U.S.C. § § 1536(g)(4) , (5). 11 availab ility of rea sonable and prudent alternati ves to 12 13 14 15 The report must analy ze the the agen cy action, a nd the nature and extent of t he benefits of the agen cy action and of altern ative cours es of actio n consistent with conserving the species or the Id. § 153 6(g)(5)(A). 8 16 critical habitat. 17 include a summary o f the evidence concerning whe ther or 18 not the agency actio n is in the public inte rest a nd is of 19 national or regional significance. 20 The Secr etary s repo rt is to be based on the reco rd 21 22 23 24 25 26 27 28 8 It must also Id. § 1536(g)(5)( B). DW R co rr ec tl y po in ts ou t th at b ot h th e co ns ul ta ti on p ro ced ur e se t for th i n Se ct io n 7( a) an d (b ), a s w ell a s th e ES C pr oc ed ure s et for th i n Se ct io n 7( g) us e th e te rm re as on ab le a nd p ru de nt alt er na ti ve . In d eb ate o ve r th e u se of t he t er m r ea so nab le a nd pru de nt , S en at or B ak er ex pl ai ne d t hat [t ]h e va lu e of t he te rm re as on ab le is t ha t it pe rm it s me m ber s of t he [ ES C] t o con si de r a wid e ra ng e of f ac to rs . It i s th e i nte nt o f th e [C om mi tt ee] t ha t th e [ES C] i n ev al ua ti ng a lte rn at iv es e x ami ne n ot o nl y en gi ne eri ng fe as ib il it y, bu t al so en vi ro nm en t al an d co mm un it y im pa cts , eco no mi c fe as ib il it y and , ot he r re l eva nt f ac to rs . 12 4 Con g. R ec . 21, 59 0 (1 97 8) . D WR c ite s th is l eg i sla ti ve h is to ry i n su ppo rt o f th e pro po si ti on t ha t e co nom ic f ea si bi l ity sh ou ld b e co ns id ere d wh en des ig ni ng a n RP A. Do c. 24 6. It i s pr em at ur e to a dd re ss th is i ss ue , as it o nl y in ci de nt al ly be ar s up on wha t RP A- re la te d fi nd ing s mu st b e inc lu de d on t he f ac e of th e Bi Op . 33 1 develope d at the pub lic hearings, which includes [t]he 2 transcri pt of testim ony and exhibits, together wi th all 3 papers a nd requests filed in the proc eeding. 4 § 452.08 (a); 5 U.S.C . § 556(e). 5 To grant an exemptio n, the ESC must determine, am ong 6 7 50 C.F.R. other th ings, that ( 1) there are no reasonable a nd 8 prudent alternatives ; (2) the benefits of such action 9 clearly outwei gh the benefits of alternative courses o f 10 action ; and (3) the action is in the public int erest, 11 and it i s of region al or national significance. 16 12 13 14 15 U.S.C. § § 1536(h)(1) (A). The ESC s final determi nation must be based on th e record, based on the report of t he Secretar y, the recor d of the hearing held ... and on such 16 other te stimony or e vidence as it may receive.... 17 U.S.C. § 1536(h)(1)( A). 18 19 The Hous e Report com pared the Services obligatio n during c onsultation to that of the ESC as follows : 20 Section 7 consultation is intended to focus attentio n on the age ncy action, its objectives, and the aspects of t he agency action which gave rise to the problem initially. The focus of section 7 consultati on should be on solving the problem in a way whi ch is clearly within the jurisdic tion and exp ertise of the consulting parties. In contras t, the review board and the Endanger ed Species C ommittee should focus on a wider va riety of alt ernatives. Their search should n ot be limite d to original project objectiv es or the ac ting agen cy s jurisdict ion. 21 22 23 24 25 26 27 28 16 Id. The requi rement of considered analysis of RP As at 34 1 the BiOp stage is mo re easily understood as facil itating 2 the ESC process. 3 4 4. 5 The Cons ultation Han dbook requires that if FWS 6 7 8 9 Applicat ion to the C onsultation Handbook Language . conclud e[s] that ce rtain alternatives are availa ble that would av oid jeopardy and adverse modification, bu t such alternat ives fail to meet one of the other three elements 10 in the d efinition of reasonable and prudent 11 alternat ive, [FWS] should document the alt ernati ve in 12 the biol ogical opini on to show it was considered during 13 the form al consultat ion process. 14 15 16 17 Handbook at 4- 41. Any such rej ected altern atives may be relevant the Secretar y s thresho ld determination of whether the action a gency and the exemption applicant c arried out 18 their c onsultation responsibilities ... in good faith 19 and made a reasonabl e and responsible effort to d evelop 20 and fair ly consider modifications or reasonable a nd 21 prudent alternatives to the proposed agency actio n which 22 would no t violate S ection 7(a)(2). 9 23 24 25 26 27 28 Although it may be c ritical to make the Secretary aware of rejected al ternatives by documenting the m in the 9 No o th er d ec is io n du rin g th e ES C p roc es s re li es d ir ec tl y o n th e con te nt o f th e Bi Op , as th e Se cr et a ry s re po rt t o th e ES C a nd t he ESC s f in al d et er mi na tio n ar e to b e ba se d on t he r ec or d mad e at t he ESC h ea ri ng . 35 1 BiOp to permit deter mination of whether the exemp tion 2 applican t made a goo d faith effort to consider RP As, such 3 a determ ination does not logically turn on whethe r or not 4 5 6 7 FWS dete rmines that any particular RPA (1) can be implemen ted in a man ner consistent with the inten ded purposes of the acti on; (2) can be implemented co nsistent 8 with the scope of th e action agency s legal authority and 9 jurisdic tion; and/or (3) is economically and 10 technolo gically feas ible. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The rele vant legisla tive history reveals the purp ose of the S ecretary s t hreshold evaluation: The basi c premise of S. 2899 is that the integrit y of the int erage ncy consultation process designated u nder section 7 of the act be preserve d. Many, if not most, conflicts between the Enda ngered Speci es Act and Federal actions can be r esolved by f ull and good faith consulta tion between the project agency and [FWS] or [NMFS], as appropriate. The committee intends that only in those instances where the consulta tion process has been exhausted and a conflict still exist s should the Endangered Species Committee co nsider granting an exemption for a Fe deral action.... [I]n the pro cess o f deciding whether to review fully an action for an exemp tion the End angered Species Committee would be required to determine that an irresolv able conflic t does indeed exist.... An irresolv able conflic t cannot be found to exist unless t he project a gency had thoroughly reviewed all modific ations and alternatives to the acti on that are within its jurisdiction and consiste nt with the objectives of the project, but has determined t hat even with the adoption of such modification or alternatives the activity cannot be c ompleted without adversely affectin g a listed s pecies or critical habitat. 36 1 2 RJN, Exh . E (S. Re p. No. 95-874 (19 78), reprinted in 3 Congress Leg. Histo ry, a t 94 3-944) (emphas is add ed). 4 The Secr etary is con cerned with the conduct of th e action 5 agency, referred to in the report as the project 6 agency. 7 modifica tions and al ternatives to the action that are 8 9 10 11 If the act ion agency thoroughly review ed al l within i ts jurisdict ion and consistent with the objectiv es of the pr oject, but [] determine d that even with the adoption of such modification or alterna tives 12 the acti vity cannot be completed without adversel y 13 affectin g a listed s pecies or critical habitat, the 14 Secretar y may conclu de that an irreconcilable con flict 15 exists, warranting f urther consideration by the E SC. 16 17 18 19 20 Whether or not the F WS analyzes all four RPA fact ors on the face of the BiOp has absolutely no bearing on the Secretar y s ESC thre shold inquiry. The Cons ultation Han dbook contains no express 21 requirem ent that FWS make findings in the BiOp regardi ng 22 the fina l three RPA requirements, in contrast wit h the 23 express instructions that the BiOp must contain a 24 thorough explanation of how each [RPA] component of the 25 26 27 28 alternat ive is essen tial to avoid jeopardy and/or adverse modifica tion. Nor does the ESC process de mand t hat F WS makes su ch findings. No such findings are necess ary to 37 1 enable t he Secretary to make its threshold determ ination 2 regardin g whether th e exemption applicant made a good 3 faith ef fort to enga ge in consultation, and the latter 4 5 6 7 stages o f the ESC pr ocess rely on a record wholly independ ent of the B iOp, built during a formal administ rative heari ng. An examination of the ES A 8 statutor y language, the consultation regulations, and the 9 Consulta tion Handboo k, coupled with the legislative 10 history, establish t hat no express language manda tes that 11 the addi tional three definitional elements of an RPA be 12 13 14 discusse d on the fac e of the BiOp, as opposed to the administ rative recor d supporting the BiOp. 15 5. 16 Plaintif fs and DWR r ely on caselaw to suppo rt the ir 17 18 19 20 21 Caselaw. contenti on that, des pite the lack of an explicit requirem ent, the BiO p must include findings treat ing the first th ree RPA requ irements. It is undisputed t hat an agency a cts arbitrar ily and/or capriciously when it fails 22 to consi der an important aspect of a problem befo re it. 23 Pac. Coa st Fed n of Fishermen s Ass ns v. NMFS, 2 65 F. 3d 24 1028, 10 34 (9th Cir. 2001) ( PCFFA I ). 25 agency m ust expressl y consider any particular iss ue on 26 27 28 But, whether an the face of its deci sional document, as opposed to elsewher e in the adm inistrative record, is a diff erent 38 1 question . 2 upheld e ven if it is of less than ideal clarity as long 3 as the agency s pat h may reasonably be discerned . 4 5 6 7 On the on e hand, an agency action may be Bowman T ransp., Inc. v. Arkansas-Best Freig ht System, Inc., 41 9 U.S. 281, 285-86 (1 974). However, a court cannot infer an age ncy s reasoning from mere sil ence... 8 but must rely only on what the agency actually s aid.... 9 Compare Gifford Pinc hot Task Force v. U.S. Fish a nd 10 Wildlife Serv., 378 F.3d 1059, 1072 n.9 (9th Cir. 2004 ) 11 (holding that the co urt may only rely on what th e agency 12 13 14 15 said in the record t o determine what the agency d ecided and why ); Pac . Coast Fed n of Fishermen s Ass ns v. NMFS, 42 6 F.3d 1082, 1092 (9th Cir. 2005) ( PCFFA II ) 16 (citing Gifford Pinchot for the proposition that a court 17 must re ly only on w hat the agency actually said in the 18 biologic al opinion ) . 19 RPA requ irements be discussed on the face of the BiOp? 20 21 22 23 24 Does the caselaw require t hat the Plaintif fs place great weight on the Ninth Circui t s decision in So uthwest Center for Biological Diversity v. U.S. Bur eau of Recla mation, 1 43 F.3d 515, 518 (9th Cir . 1998), u pholding a F WS biological opinion conclud ing that 25 Reclamat ion s operat ions on Lake Mead and the Lower 26 Colorado River would jeopardize an endangered bir d 27 species, the Southwe stern Willow Flycatcher. 28 39 Bef ore the 1 BiOp was finalized, FWS sent Reclamation a draft RPA 2 comprise d of a numbe r of short and long-ter m comp onent s. 3 Id. 4 5 6 7 Som e of t he sho rt-term measures would have requir ed Reclamat ion to lower the level of Lake Mead. Rec lamation advised FWS that it lacked discretion to do so. Id. FWS s fi nal BiOp con firmed that project operation s would 8 jeopardi ze the speci es, but proposed a new RPA wh ich no 9 longer r equired Recl amation to take the originall y- 10 proposed short term actions, replacing them with other 11 short te rm measures. 12 13 14 15 Id. Environm ental plaint iffs argued that FWS improper ly rejected the draft R PA in favor of the final RPA, which does les s to preserve hab itat near Lake Mea d, ba sed o n 16 Reclamat ion s allege d lack of discretion to lower the 17 level of Lake Mead. 18 Plaintif fs complaine d that the secretary never 19 independ ently review ed Reclamation s representati on that 20 it lacke d such discretion. 21 22 23 24 Id. at 523. Specifically, Id. The Nint h Circuit re jected this argument on sever al grounds. First, un der the ESA, the Secretary wa s not required to pick the first reasonable alternative the FWS 25 came up with in form ulating the RPA. 26 not even requi red to pick the best alternative or the one 27 that wou ld most effe ctively protect the Flycatche r from 28 40 The Secreta ry was 1 jeopardy .... T he Secretary need only have adopted a final 2 RPA whic h complied w ith the jeopardy standard and which 3 could be implemented by the agency. 4 (emphasi s added). 5 Second, under the E SA, the Secretary was not 6 7 Id. a t 523 required to explain why he chose one RPA over ano ther, or 8 to justi fy his decis ion based solely on apolitica l 9 factors. [FN5] 10 12 13 14 15 17 18 19 20 Foot note 5 further exp lains: The Secr etary must r ely on t he best scient ific and comm ercial data available in formulating an RPA, 16 U.S.C. § 153 6(a)(2). However, the ESA does not explicitly limit the Secretary s analysis to apolitic al considerations. If t wo proposed RPAs would avoid jeopardy to the Flycatch er, the Secr etary must be permitted to choose t he one that best suits all of its interest s, including political or business interest s. 11 16 Id. Id. The Nint h Circuit th en articulated the governing standard : The only relevant question before [th e court] for revi ew was whether the Secretary acted arbitr arily 21 and capr iciously or abused his discretion in adop ting the 22 final RP A. 23 had only to determin e if the final RPA met the st andards 24 and requ irements of the ESA. 25 26 27 28 I d. In answering this question, the court The cou rt was not in a position to determin e if the draft RPA should hav e been adopted or if it wou ld have afforded the Flycatch er better p rotection. Id. 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The Nint h Circuit re viewed the evidence and found no APA viol ation: Upon car eful review of the evidence, we can not say the district cou rt erred in finding that the final RP A met the st andards and requirements of the ESA. The distric t court determined that the FWS cons idered the r elevant factors and reasonab ly found tha t the Flycatcher could survive the loss of habitat at Lake Mead for eighteen months unti l 500 acres could be protecte d, then surv ive an additional two years until an additional 500 acres could be protecte d, and final ly survive through the MSCP process until compen sation could be made for the historic al habitat l ost on the Lower Colorado River an d until an e xtensive ecological restorat ion could be undertaken. Southwest failed t o present an y convincing evidence to contradi ct the FWS findings. Southwest merely relied u pon the disc arded draft RPA w hich had indicate d that prese rvation of the Lake Mead habitat was necessar y to the survival of the Flycatch er. However, upon further consideration of the m atter, the F WS was entitled to, and did, in fact, change its mind. The FWS concluded in the fina l BO that th e proposed short- term and long-ter m provisions of the final RPA would avoid je opardy to th e Flycatcher, notwiths tanding the failure to modify Reclamat ion s operat ion of Hoover Dam at Lake Mead. Be cause there was a rational connection between the facts fo und in the BO and the choice made to adopt the fi nal RPA, and because we must defer to the special expertise of the FWS in drafting RPAs that w ill sufficiently protect endanger ed species, we cannot conclude that the Secretar y violated t he APA. Id. (emp hasis added) . Plaintif fs argue the emphasized text, approving F WS s 26 RPA beca use there wa s a rational connection betwe en the 27 facts f ound in the BiOp and that decision, esta blishes 28 42 1 that the FWS must ma ke findings on all four RPA 2 requirem ents on the face of t he BiOp. 3 the Nint h Circuit s holding. 4 5 6 7 This overs tates First, Southwest Center says not hing about r equiring findings on the face of the BiOp. T he requisite findings were, unsurprisingl y, in the BiOp in that cas e, because those findings con cerning 8 how each component o f the final RPA would avoid j eopardy, 9 were exp licitly requ ired by the Consultation Hand book. 10 Consulta tion Handboo k 4-41 ( When a reasonable and 11 prudent alternative consists of multiple activiti es, it 12 13 14 15 is imper ative that t he opinion contain a th orough explanat ion of how e ach component of the alternat ive is essentia l to a void jeopardy and/or adverse 16 modifica tion. )(emphasis added). 17 the ESA, nor any of its implementing regulations 18 explicit ly require t hat the BiOp contain an analysis o f 19 any of t he other thr ee RPA requirements. 20 21 22 23 24 Neither the Handbook , Plaintif fs suggest t he second sentence from the Southwes t Center language delineates that f inding s are required for all fou r RPA requirements. Plaintif fs quote that sen tence as aut hority to claim t he FWS considered 25 the rele vant factors and reasonably found the J oint 26 Consulta tion Regulat ions requirements were satisf ied with 27 respect to an RPA is sued in a biological opinion for the 28 43 1 Southwes t Willow Fly catcher.... 2 is misle ading, becau se the entire sen tence makes clear 3 that the only findi ngs discussed in South west Center 4 5 6 7 Doc. 237 at 10. This were fin dings concer ning the capacity of the Flyc atcher to survi ve in the sh ort term while the RPA was be ing implemen ted. 143 F. 3d at 523. South west C enter only 8 stands f or the propo sition that FWS must justify its 9 conclusi on that the RPA would prevent jeopardy an d/or 10 adverse modification in the BiOp. 11 Supp. 2d at 1268 (fi nding the jeopardy determinat ion to 12 13 14 15 16 See Greenpeace , 55 F. be the guiding stan dard for determination of RP As). Southwes t Center does not create the discus sion requirem ent Plaintif fs suggest. PCFFA II , on which P laintiffs also re ly, is not 17 contrary . 18 overturn ed an RPA ad opted for coho salmon because NMFS 19 failed t o articulate the bases for its assumption s 20 underlyi ng the RPA. 21 22 23 24 426 F.3d 1082. There, the Ninth Circu it Id. at 1090-95. The d istrict cou rt conclude d that the a gency had implicitly conside red whether all three ph ases of the RPA would ensure against jeopardy . Id. at 1091. The Ninth Ci rcuit emphas ized 25 that it is a basic principle of administrative l aw that 26 the agen cy must arti culate the reason or reasons for its 27 decision . 28 Id . 44 1 The Nint h Circuit fo und little substance to the 2 discussi ons of Phase s I and II in the BiOp. 3 1093. 4 5 6 7 Id. at A lthough some language suggested that the agency believed that the RP A would avoid jeopardy to the coho, this ass ertion alone is insufficient to sustain t he BiOp and the RPA. Id. The N inth Circuit refus ed to take 8 [the age ncy s] word that the species will be prot ected if 9 its plan s are follow ed. 10 PCFFA II only discus sed whether the R PA would avoid 11 jeopardy , the analys is of which is explicitly req uired in 12 13 14 15 16 17 the BiOp . Id. As in Southwest Center, Here, Pla intiffs seek to extend this l ogic to mandate that F WS include specific findings concerning the three ot her RPA requ irements in the BiOp. PCFFA II does not requ ire this. Plaintif fs also cite NRDC v. Kempthor ne, 506 F. Supp. 18 2d 322 ( E.D. Cal. 20 07), which held that, althoug h 19 certain, potentially critical data wa s part of the 20 administ rative recor d, its significance, or lack thereof, 21 22 23 24 was not discussed in the BiOp. Id. a t 362-363. The governme nt s post ho c reasoning was rejected, tha t, even if the d ata had been addressed in the BiOp, the u ltimate 25 opinion reached by t he Service would not ha ve been 26 differen t. 27 clarity may be uphel d if the agency s path may re asonably 28 Althoug h a decision of less than ide al 45 1 be disce rned, [a cou rt] cannot infer an agency s 2 reasonin g from mere silence. 3 must be upheld, if a t all, on the basis articulat ed by 4 5 6 7 the agen cy itself. at 1091) . Rather, an agency s action Id. at 366 (citing PCF FA, 426 F.3d The distr ict court further reasoned [ h]ad FWS examined the FMWT 20 04 data in the BiOp, the weig ht it 8 gave to that data wo uld h ave been entitled to def erence. 9 The agen cy s silence cannot be afforded deference . 10 Kempthor ne, 50 6 F. S upp. 2d at 366. 11 12 13 14 15 Plaintif fs argue tha t this language reflects a requirem ent that ana lysis of the data must be inc luded in the BiOp , suggesting that if such analysis was in stead found el sewhere in t he administrative record it w ould be 16 insuffic ient. 17 the nece ssary reason ing was found in neither the BiOp nor 18 the admi nistrative r ecord. 19 searched for, but di d not find, certain analyses in the 20 BiOp or elsewhere i n the administrative record). 21 22 23 24 This reads too much into Kem pthorn e, where Id. at 38 0 (district court Kempthor ne fou nd the cont ent of the BiOp la cking in li ght of the e ntire AR, bo th of which entirely failed t o competen tly perform the required ESA jeopardy and habi tat 25 modifica tion analyse s. 26 is much more accessi ble than the administrative r ecord, 27 which ca n be tens of thousands of pages long. 28 The practical fact is tha t a BiOp 46 Kempthorne 1 did not address or d ecide the issue presented her e. 10 2 3 4 5 6 7 In APA r eview cases, it is well established that, in determin ing whether agency action was arbitrary, capricio us, an abuse of discretion, or otherwise not in accordan ce with law. ... the c ourt shall review the who le record o r those part s of it cited by a party, and due 8 account shall be tak en of the rule of prejudicial error. 9 5 U.S.C. § 706. 10 that was before the agency pertaining to the meri ts of 11 its deci sion. 12 13 14 15 The whole record, includ es everyth ing Portland Audubon Soc y v. E ndange red Species Committee, 984 F. 2d 1534, 1548 (9th Cir. 1993). See also Seattle Aud ubon Soc y v. Lyons, 871 F. Supp. 1291, 13 08 (W.D. Was h. 1994) (finding declaration s 16 properly considered to explain the agency s acti ons or 17 to deter mine whether its course of inquiry was 18 inadequa te. ). 11 19 20 21 22 23 24 25 26 27 28 10 We st la nd s Wa te r Di st . v . U. S. D ep t . o f In te ri or , Bu re au of Rec la ma ti on , 85 0 F. S upp . 13 88 , 14 2 5-2 6 (E .D . Ca l. 1 99 2) , d oe s no t dem an d a co nt ra ry c on clu si on . I n t hat c as e, d ec id ed o n a m ot io n to dis mi ss , pl ai nt if fs a lle ge d th at N M FS wa s re qu ir ed t o co nsi de r, a nd bal an ce , th e ec on om ic an d/ or e nv ir o nme nt al e ff ec ts o f an RP A on sou th -o f- De lt a wa te r use rs , be ca us e th e ES A s re gu la ti on s r eq ui re RPA s to b e e co no mi ca lly a nd t ec hn o log ic al ly f ea si bl e. Th e com pl ai nt s uf fi ci en tl y r ai se d th e i ssu e of e co no mi c fe as ibi li ty und er 4 0 C. F. R. § 4 02 .02 . I d. a t 1 426 . H ow ev er , ne it he r t he par ti es n or t he c ou rt su gg es te d in Wes tl an ds t ha t a di sc uss io n of eco no mi c fe as ib il it y was r eq ui re d o n t he f ac e of t he B iO p. 11 Si mi la rl y, i n Gi ff or d P in ch ot T as k Fo rc e v. F WS , 37 8 F. 3d 10 59 , 107 2 (9 th C ir . 20 04 ), th e Ni nt h Ci r cui t re je ct ed t he a ge ncy arg um en t th at t he B iO p s a na ly si s i mpl ic it ly c on si de re d re co ve ry , hol di ng t ha t a co ur t ca nn ot i nf er an ag en cy s r ea so ni ng fr om m er e sil en ce o r wh er e th e age nc y fa il ed to ad dr es s si gn if ic an t o bj ec ti on s and a lt er na ti ve p ro po sal s. G if fo r d c ar ef ul ly e xa mi ne d the t ex t of 47 1 DWR s ca ses do not undermine this rea soning . Motor 2 Vehicle Manufacturer s Association of the United S tates, 3 Inc., v. State Farm Mutual Auto Insurance Company , 463 4 5 6 7 U.S. 29 (1983), conc erned the National Highway Tr affic Safety A dministratio n s ( NHTSA ) decision to rescind passive restraint cr ash safety requirements for n ew motor 8 vehicles . 9 install automatic se atbelts which users could eas ily 10 detach, the agency r escinded the order in light o f the 11 expense required to implement a progr am tha t would hav e 12 13 14 15 When NHTS A learned that automakers opt ed to only min imal s afety benefits because it cou ld be disengag ed by users. Id. at 38-39. The Co urt conclud ed that thi s decision w as arbitrary and capricious b ecause 16 NHTSA fa iled to cons ider modifying the standard t o 17 require the installa tion of airbags. 18 reaching this conclu sion, the Court indicat ed it must 19 conside r whether th e dec isio n was ba sed on a 20 consider ation of the relevant factors and whether there 21 22 23 24 25 26 27 28 has been a clear err or of judgment. Id. a t 46. In Id. ( emphas is added). sev er al B iO ps , fi nd in g t ha t in t wo of th e Bi Op s, t he c ri tic al hab it at a na ly se s me nt ion ed t he w or d r ec ov er y o nl y in a n int ro du ct or y pa ra gr ap h w hi le i n fo u r o th er B iO ps , th e wo rd re co ve ry wa s no t me nti on ed a t al l , a nd t he re w as n o di scu ss io n of how c ri ti ca l ha bi ta t pla ys a r ol e i n r ec ov er y of t he s pe cie s. Id . at 10 73 . T he N in th C irc ui t he ld i t co ul d no t in fe r an y ove ra rc hi ng con ce rn f or r ec ov er y fro m th e si le n ce of t hi s te xt . Id . a t 10 74 . Alt ho ug h th e Gi ff or d cou rt f oc us ed on th e te xt o f th e Bi Ops , th e Nin th C ir cu it e xp li ci tly co ns id er [ ed] [ ] th e en ti re r ec ord , b ef or e fin di ng t he B iO p to b e i na de qu at e. Id . at 1 06 6. 48 1 Focusing on St ate Farm s use of the word decision, 2 DWR asse rts that all relevant factors must be con sidered 3 in the t ext of the a gency s decision document, ra ther 4 5 6 7 than els ewhere in th e administrative record. But , State Farm als o emph asized that the relevant statue required a record of the rulem aking proceedings to be compi led, 8 id. at 4 3-44, and in dicat ed that Congress established a 9 presumpt ion against. ... changes in current policy that 10 are not justified by the rulemaking record, id. at 43. 11 State Fa rm doe s not suppo rt DWR s position that the 12 13 14 15 16 whole r ecord rule should be ignored in favor of a requirem ent that any and all analytical reasoning must be included in the deci sion document (the BiOp). DWR also relies on Burlin gton Truck Lines, Inc. v. 17 United S tates, 371 U.S. 156, 168-69 (1962), which 18 criticiz ed the Inter state Commerce Commission s ( ICC ) 19 failure to make any findings or include any analy sis to 20 justify a particular decision. 21 22 23 24 The Court noted t hat expert discretion i s the lifeblood of the administrat ive process, but unless we make the requirements for administ rative actio n strict and demanding, exper tise, 25 the stre ngth of mode rn government, can become a m onster 26 which ru les with no practical limits on its discr etion. 27 Id. at 1 67 (in ternal citations and qu otatio ns omitted) . 28 49 1 See also Ry. Labor E xecutives Ass n v. ICC, 784 F.2d 2 959, 974 (refusing t o rummage around in the reco rd below 3 to find a plausible rationale to fill the void in the 4 5 6 7 agency o rder under r eview ). Burling ton and Rail way Labor Ex ecutives insiste nce upon formal fi ndings is unsurpri sing given t hat, under the procedures app licable 8 in that case, where the ICC was required to make 9 findings that suppor t its decision, and those fin dings 10 must be supported by substantial evidence. 11 general findings req uirement exists here. 12 13 14 15 Id. No such Rather , the only fin dings explic itly required by the Consulta tion Handbook are those c oncerning the capacity of any RPA to prevent jeopardy and /or adverse modification. 12 A statut e or regulat ion may specifically require 16 17 certain reasoning or findings to be included in t he 18 ultimate decision do cument. 19 requirem ent that the BiOp explain why each part o f a 20 multi-pa rt RPA ensur es against jeopar dy or adverse 21 22 23 24 25 26 27 28 The above-mentioned modifica tion is one such example. However, there is no parallel requirement that FWS certify or make fin dings with res pect to the other three RPA requirements on the fact of the record. It is not appropriate for a court to 12 Ci ti ze ns t o Pr es er ve Ov er to n Pa rk , In c. v . Vo lp e, 4 01 U .S. 4 02 (19 71 ), i s al so u nh el pfu l. In t ha t ca se , al th ou gh t he re wa s an adm in is tr at iv e re co rd , i t wa s no t b efo re t he c ou rt , ne ce ssi ta ti ng rem an d to t he d is tr ic t c ou rt f or r e vie w of t he a ge nc y s dec is io n bas ed o n th e en ti re a dmi ni st ra ti ve rec or d. Id . at 4 19 -2 0. 50 1 create[ ] a requirem ent not found in any relevant statute 2 or regul ation. 3 981, 991 (9th Cir. 2 008). 13 4 5 6 The Land s Council v. McNai r, 537 F.3d FWS prop erly promulg ated the RPA must be decided on the basis of the entire record. 7 VI. CONCLUSION 8 9 10 11 12 Rather, the issue of w hether For the reasons set forth above, Plaintiffs motion for summ ary judgment on the narrow issue of wheth er FWS is requi red to discu ss the first three RPA requir ements on the f ace of the B iOp is DENIED, as is Federal 13 Defendan ts cross-motion, WITHOUT PREJUDICE to th e nex t 14 round of dispositive motions which will add ress on the 15 merits a ll issues of the BiOp s sufficiency. 16 Defendan ts shall sub mit a form of order consisten t with 17 this mem orandum deci sion within ten (10) days of 18 Fed eral electron ic service. 19 20 21 SO ORDER ED Dated: October 15, 2009 /s/ Oliver W . Wang er Oliver W. Wang er United States Distri ct Judge 22 23 24 13 25 26 27 28 No r is i t di sp os it iv e t ha t NM FS i n clu de d fi nd in gs c on ce rni ng a ll fou r RP A fa ct or s in i ts re la te d Bi O p c on ce rn in g th e im pa cts o f Pro je ct o pe ra ti on s on sa lm on id s an d ot he r sp ec ie s. Se e PRJ N, E x. A (NM FS , Bi ol og ic al O pi nio n an d Co nf e ren ce O pi ni on o n th e Lon g- Te rm Ope ra ti on s of t he C en tra l Va ll ey P r oje ct a nd S ta te W at er Pr oj ec t (Ju ne 4 , 20 09 )) . A lt hou gh N MF S sh o ws an a na ly si s tr ea ti ng al l RP A ele me nt s ca n be p re se nte d in a B iO p , t hi s ac ti on i s no t an ad mi ss io n bin di ng o n a di ff er en t a ge nc y. 51

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