United States District Court, D. New Mexico
AMENDED MEMORANDUM OPINION AND ORDER
C. BRACK, UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff WildEarth
Guardians' Motion and Memorandum in Support of Amended
Motion to Complete and/or Supplement the Administrative
Record Lodged by Federal Defendant United States Army Corps
of Engineers, filed on March 1, 2017. (Doc. 97.) WildEarth
Guardians seeks to add documents to the administrative record
compiled by Defendant U.S. Army Corps of Engineers. The Court
has considered the arguments of the parties, the relevant
law, the extra-record documents, and the administrative
record. With the exception of the documents the Corps has
agreed to include in the administrative record and the RPA
Compliance Reports for the years 2003, 2004, 2006, 2011, and
2013, the Court DENIES WildEarth
that species of fish, wildlife, and plants in the United
States have aesthetic, ecological, educational, historical,
recreational, and scientific value to the Nation and its
people, Congress created the Endangered Species Act (ESA) to
protect at-risk species. See 16 U.S.C. §
to the ESA, the Secretary of the United States Fish and
Wildlife Service (FWS) publishes a list of endangered or
threatened species and lists their critical habitats.
See 16 U.S.C. § 1533(c). Federal agencies have
a substantive duty under Section 7(a)(2) of the ESA to ensure
that their actions do not “jeopardize the continued
existence” of or harm any listed species or their
critical habitat. See 16 U.S.C. § 1536(a)(2).
To ensure that federal agencies uphold their substantive
duty, Section 7(a)(2) also has procedural requirements: all
federal agencies considering projects that may adversely
affect a listed species or its critical habitat must engage
in formal consultation with the FWS. Id.
Section 7(a)(2) formal consultation process begins when the
agency issues a written request for the initiation of formal
consultation to the FWS. 16 U.S.C. § 1536(c); 50 C.F.R.
§ 402.14(c). This written request includes the
agency's Biological Assessment, in which the agency
identifies the action it proposes to implement and evaluates
the expected impact of the proposed action on listed species
and their critical habitats. 16 U.S.C. § 1536(c); 50
C.F.R. §§ 402.12, 402.14. At the end of the Section
7(a)(2) formal consultation process, the FWS issues a
Biological Opinion, which includes the FWS's
determination of whether the proposed agency action comports
with the agency's substantive duties under Section
7(a)(2). 50 C.F.R. § 402.14(h). If the FWS finds that a
proposed agency action will jeopardize a listed species or
adversely affect a critical habitat, the FWS includes a
“Reasonable and Prudent Alternative” (RPA) that
avoids the adverse effect in the Biological Opinion.
addition to Section 7(a)(2)'s procedural and substantive
protections, listed species also enjoy protection from
Section 9 of the ESA, which prohibits any person, including
any federal agency, from “taking” a listed
species. 16 U.S.C. § 1538(a)(1). The ESA defines
“take” as to “harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or to attempt
to engage in such conduct.” 16 U.S.C. § 1532(19).
Not all taking is prohibited, however. If the FWS finds that
implementation of the action that is the subject of a
Biological Report will result in incidental taking of a
listed species, the FWS may incorporate an Incidental Take
Statement into the Biological Opinion. 16 U.S.C. §
1536(b)(4). Any taking covered by the scope of the Incidental
Take Statement is not considered to be prohibited.
See 16 U.S.C. § 1536(o)(2).
the ESA's “citizen-suit” provision, any
person-including any organization-may commence a civil suit
to enjoin an agency from affirmatively violating the ESA,
see 16 U.S.C. § 1540(g)(1)(A), and against the
Secretary for an alleged failure to perform any
nondiscretionary duty that the ESA requires, see 16
U.S.C. § 1540(g)(1)(C).
Factual and Procedural Background
WildEarth Guardians is a non-profit environmental advocacy
and conservation organization based in Santa Fe, New Mexico.
(Doc. 66 at 4.) As part of its “Rio Grande:
America's Great River” campaign, WildEarth
Guardians seeks to protect and restore the Rio Grande by
ensuring that the river has continuous flows and that the
river continues to support its native species. (See
id.) WildEarth Guardians' efforts to protect the Rio
Grande's native species include attempts to ensure the
survival and recovery of the Rio Grande silvery minnow and
the southwestern willow flycatcher.
Grande silvery minnow was historically one of the most
abundant species of fish in the Rio Grande watershed system,
occurring from Espanola, New Mexico, to the Gulf of Mexico.
See Final Rule to List the Rio Grande Silvery Minnow
as an Endangered Species, 59 Fed. Reg. 36, 988 (July 20,
1994). By 1994, however, the Rio Grande silvery minnow was
only found in the Middle Rio Grande, from Cochiti Dam
downstream to the headwaters of Elephant Butte Reservoir, New
Mexico, or about five percent of the minnow's historic
range. Id. According to the FWS, threats to the
minnow include dewatering; channelization and regulation of
river flow to provide water for irrigation; diminished water
quality caused by municipal, industrial, and agricultural
discharges; and competition with non-native fish species.
Id. On July 20, 1994, the FWS listed the Rio Grande
silvery minnow as endangered under the ESA. Id.
southwestern willow flycatcher is a small bird, approximately
15 cm long, that breeds in several southwestern states,
including New Mexico. See Final Rule Determining
Endangered Status for the Southwestern Willow Flycatcher, 60
Fed. Reg. 10, 694 (Feb. 27, 1995). Within the Southwest, the
flycatcher is restricted to dense riparian associations of
willow, cottonwood, buttonbush, and other deciduous shrubs
and trees. Id. This habitat, already historically
rare, is becoming even more scarce due to brood parasitism
and lack of protective regulations. Id. In 1995, the
FWS listed the southwestern willow flycatcher as endangered
under the ESA. Id.
16, 2015, WildEarth Guardians filed its Third Amended
Complaint pursuant to the citizen-suit provision of the ESA,
16 U.S.C. § 1540(g), against the U.S. Army Corps of
Engineers and the U.S. Bureau of Reclamation, alleging that
the Defendants' Middle Rio Grande operations violated the
ESA with respect to the Rio Grande silvery minnow and the
southwestern willow flycatcher. (Doc. 66 at 34-37.) The U.S.
Army Corps of Engineers (Corps) is a federal agency within
the Department of the Army that maintains and operates the
Abiquiu, Cochiti, Galisteo, and Jemez Canyon dams pursuant to
the Middle Rio Grande Project. (Doc. 66 at 5-6.) The U.S.
Bureau of Reclamation (Reclamation) is a federal agency
within the Department of the Interior that manages water
rights and diversion structures on the Middle Rio Grande.
(Doc. 66 at 5.)
March 1, 2017, WildEarth Guardians voluntarily dismissed all
of its remaining claims against Reclamation. Presently,
WildEarth Guardians has three remaining claims against the
Corps: (1) WildEarth Guardians' “Fifth Claim for
Relief, ” which alleges that the Corps' Middle Rio
Grande operations violate the substantive provisions of
Section 7(a)(2) by jeopardizing listed species and adversely
affecting the species' critical habitats; (2) WildEarth
Guardians' “Sixth Claim for Relief, ” which
alleges that the Corps' decision to terminate
consultation with the FWS regarding its Middle Rio Grande
operations violates the procedural requirements of Section
7(a)(2); and (3) WildEarth Guardians' “Seventh
Claim for Relief, ” which alleges that the Corps'
Middle Rio Grande operations have caused and continue to
cause incidental taking of Rio Grande silvery minnows, in
violation of Section 9 of the ESA. (See Doc. 66 at
December 1, 2015, the Corps compiled, certified, and lodged
the Administrative Record (record). (Doc. 72.) WildEarth
Guardians now asks the Court to add additional documents,
totaling more than 4, 300 pages, to the record.
courts process reviews of agency action as appeals. See
Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580
(10th Cir. 1994). Since the review is treated as an appeal,
the Court is not an independent decision maker, and it must
not substitute its judgment for that of the agency, even if
it might have decided matters differently. See Am. Mining
Cong. v. Thomas, 772 F.2d 617, 626 (10th Cir. 1985). As
a result, the Court may not create its own record and make
findings de novo, but must instead review agency action under
the narrow and deferential arbitrary and capricious standard.
See Camp v. Pitts, 411 U.S. 138, 142 (1973). Under
the arbitrary and capricious standard, a district court
reviews an agency action to determine if it was
“arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” Bar MK
Ranches v. Yuetter, 994 F.3d 735, 739 (10th Cir.
1993) (citing 5 U.S.C. § 706(2)(A)). The Court's
review must be searching and careful, but the ultimate
standard of review is a narrow one. Custer Cty. Action
Ass'n v. Garvey, 256 F.3d 1024, 1029-30 (10th Cir.
conducting its arbitrary and capricious review, courts
normally restrict their review to the record compiled by the
agency. Citizens for Alternatives to Radioactive Dumping
v. U.S. Dep't. of Energy, 485 F.3d 1091, 1096 (10th
Cir. 2007) (citing Lee v. U.S. Air Force, 354 F.3d
1229, 1242 (10th Cir. 2004)). Though “an agency may not
unilaterally determine what constitutes the Administrative
Record, ” the agency's designation of the
Administrative Record is entitled to a presumption of
administrative regularity. Bar MK Ranches, 994 F.3d
at 739-40. Only in “extremely limited
circumstances” does a court consider evidence outside
the administrative record. Citizens For
Alternatives, 485 F.3d at 1096. For example, a court may