Endangered Species Act – Page 3

Guess the big win wasn’t all that big. Here are two unpublished opinions from the Ninth Circuit in related cases that are not so excellent for the tribes.

CENTER FOR BIOLOGICAL DIVERS. V. BLM

SUMMIT LAKE PAIUTE TRIBE V. BLM

Ninth Circuit Hands Summit Lake Paiute Tribe & Fort Bidwell Indian Community Big Win in Challenge to BLM Approval of Ruby Pipeline

October 22, 2012October 22, 2012Matthew L.M. Fletcher

Here is the opinion in Center for Biological Diversity v. BLM.

An excerpt:

Our case concerns a decision by the Bureau of Land Management (“BLM”) to authorize the Ruby Pipeline Project (“Project”). The Project involves the construction, operation, and maintenance of a 42-inch-diameter natural gas pipeline extending from Wyoming to Oregon, over 678 miles. The right-of-way for the pipeline encompasses approximately 2,291 acres of federal lands and crosses 209 rivers and streams that support federally endangered and threatened fish species. According to a Biological Opinion (“the Biological Opinion” or “the Opinion”) formulated by the Fish and Wildlife Service (“FWS”), the project “would adversely affect” nine of those species and five designated critical habitats. The FWS nonetheless concluded that the project “would not jeopardize these species or adversely modify their critical habitat.” The propriety of the FWS’s “no jeopardy” conclusion, and the BLM’s reliance on that conclusion in issuing its Record of Decision, are at the heart of this case. This opinion addresses those challenges to the Project that petitioners Center for Biological Diversity, Defenders of Wildlife et al., and Summit Lake Paiute Tribe have raised under the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq. Specifically, we resolve petitioners’ claims that the Biological Opinion and its accompanying Incidental Take Statement were arbitrary and capricious because: (1) the Biological Opinion’s “no jeopardy” and “no adverse modification” determinations relied on protective measures set forth in a conservation plan not enforceable under the ESA; (2) the Biological Opinion did not take into account the potential impacts of withdrawing 337.8 million gallons of groundwater from sixty-four wells along the pipeline; (3) the Incidental Take Statement miscalculated the number of fish to be killed, by using a “dry-ditch construction method” for water crossings; and (4) the Incidental Take Statement placed no limit on the number of “eggs and fry” of threatened Lahontan cutthroat
trout to be taken during construction. We agree with the first two contentions and so set aside the Biological Opinion as arbitrary and capricious. We also set aside the Record of Decision, as it relied on the invalid Biological Opinion.

Briefs here.

Congrats to Colette Routel and the tribes.

Cert Petition in Klamath National Forest Endangered Species Act Case

September 17, 2012Matthew L.M. Fletcher2 Comments

Here is the petition in New 49’ers Inc. v. Karuk Tribe of Indians:

New 49ers Cert Petition

Questions presented:

Whether a federal official’s receipt and review of notice of private action, his exercise of discretion as to whether to invoke agency regulatory powers over such private action, and his decision not to invoke such powers, constitute “agency action” for purposes of § 7(a)(2) of the Endangered Species Act.
Whether the federal courts lack jurisdiction over the action in light of changed circumstances.

Lower court materials here (case formerly captioned as Karuk Tribe of California v. USFS).

I don’t know the merits of this petition, but it probably should be denied because of the cheese ball (if not downright tacky) caption here.

Kalispel Tribe Signs Agreement with Federal Agencies On Water and Environmental Management Issues

July 18, 2012July 18, 2012Kate Fort

Here.

The Kalispel Tribe of Indians has signed a 10-year, $39.5 million agreement with federal agencies that focuses on actions to address impacts of Albeni Falls Dam on fish and wildlife in the area of Lake Pend Oreille and the tribe’s reservation along the Pend Oreille River about 55 miles north of Spokane.

The agreement recognizes the tribe’s resource management expertise and its interest in operations at Albeni Falls Dam and includes specific provisions for the tribe to participate in decisions that affect fish, wildlife and water quality.

“The Kalispel Tribe is excited to see this agreement come to fruition as a result of nearly two decades of positive working relationships and on-the-ground successes. We believe this is just the beginning of a strong partnership with the federal agencies and we are hopeful for the future of our important and treasured resources,” said Kalispel Tribal Chairman Glen Nenema.

The agreement makes available approximately $39.5 million over 10 years, including $2.5 million for land acquisitions for wildlife habitat.

The tribe has identified habitat projects to benefit Endangered Species Act listed bull trout as well as west slope cutthroat trout and mountain whitefish.

In addition, the new agreement provides for the tribe, Army Corps of Engineers and Bonneville Power Administration to work together on improving water management actions in late summer and early fall to improve downstream water temperature for bull trout and other aquatic species.

En Banc Ninth Circuit Holds Forest Service Violated the Endangered Species Act in Approving Mining at Klamath Nat’l Forest

June 1, 2012June 1, 2012Matthew L.M. Fletcher2 Comments

Here is today’s opinion in Karuk Tribe of California v. USFS.

Audio and video of the en banc argument here. Briefs here.

An excerpt:

There are two substantive questions before us.

The first is whether the Forest Service’s approval of four NOIs to conduct mining in the Klamath National Forest is “agency action” within the meaning of Section 7. Under our established case law, there is “agency action” whenever an agency makes an affirmative, discretionary decision about whether, or under what conditions, to allow private activity to proceed. The record in this case shows that Forest Service District Rangers made affirmative, discretionary decisions about whether, and under what conditions, to allow mining to proceed under the NOIs.

The second is whether the approved mining activities “may affect” a listed species or its critical habitat. Forest Service regulations require a NOI for all proposed mining activities that “might cause” disturbance of surface resources, which include fisheries and wildlife habitat. 36 C.F.R. §§ 228.4(a), 228.8(e). In this case, the Forest Service approved mining activities in and along the Klamath River, which is critical habitat for threatened coho salmon. The record shows that the mining activities approved under NOIs satisfy the “may affect” standard.

We therefore hold that the Forest Service violated the ESA by not consulting with the appropriate wildlife agencies before approving NOIs to conduct mining activities in coho salmon critical habitat within the Klamath National Forest.

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