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WildEarth Guardians v. United States Army Corps of Engineers

United States District Court, D. New Mexico

November 22, 2017

WILDEARTH GUARDIANS, Plaintiff,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, Federal Defendant.

          AMENDED MEMORANDUM OPINION AND ORDER

          ROBERT C. BRACK, UNITED STATES DISTRICT JUDGE

         This 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 Guardians' motion.

         I. BACKGROUND

         a. Legal Background

         Recognizing 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. § 1531(a).

         Pursuant 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.

         The 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. Id.

         In 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).

         Under 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).

         b. Factual and Procedural Background

         Plaintiff 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.

         The Rio 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.

         The 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.

         On June 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.)

         On 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 36-37.)

         On 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.

         II. STANDARD

         District 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. 2001).

         When 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 supplement ...


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