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In the latest decision in the long-running legal saga over the proposed Newhall Ranch development in Los Angeles County, the U.S. Court of Appeals for the Ninth Circuit upheld the Army Corps of Engineers’ EIS and Section 404 permit, giving substantial deference to the Corps’ decisionmaking. Friends of the Santa Clara River v. U.S. Army Corps of Engineers, 887 F.3d 906 (9th Cir. 2018).

Background

Newhall Ranch is a proposed large-scale master-planned community in Los Angeles County. The County approved a specific plan for the project that provided for more than 21,000 residential units and 4.4 million square feet of commercial, office, and retail uses. In connection with the project, Newhall Land and Farming Company applied to the Army Corps of Engineers for a permit under Section 404 of the Clean Water Act to discharge dredge or fill material into navigable waters. The Corps, along with the California Department of Fish and Wildlife, prepared a combined EIS/EIR. The EIS/EIR considered eight project alternatives, including Newhall’s preferred alternative, a no-build alternative and six other alternatives.

The Corps issued a Record of Decision that adopted one of the studied alternatives (“Modified Alternative 3”) as the least environmentally damaging practicable alternative. Modified Alternative 3 involved developing less acreage than Newhall’s preferred alternative, at a higher cost per developable acre. The Corps also determined that wastewater and stormwater discharges from the project would not affect endangered steelhead in the Santa Clara River downstream from the project. Based on this “no effect” determination, the Corps did not consult with the National Marine Fisheries Service on impacts to endangered steelhead.

The plaintiffs claimed that the Corps’ decisions violated the Clean Water Act, the Endangered Species Act, and the National Environmental Policy Act. First, the plaintiffs challenged the Corps’ selection of Modified Alternative 3 as the least environmentally damaging practicable alternative. Second, the plaintiffs challenged the Corps’ failure to consult with NMFS. Third, the plaintiffs argued that the EIS did not adequately analyze cumulative impacts on steelhead.…
Continue Reading Federal Appeals Court Rejects Challenges to Newhall Ranch EIS and Section 404 Permit

The U.S. Fish and Wildlife Service and National Marine Fisheries Service recently published three proposed rules that would make major revisions to the regulations implementing portions of the Endangered Species Act. The proposed rules would change the criteria and procedures for (1) establishing protections for “threatened” species; (2) the listing and delisting of species and…

The U.S. Department of the Interior’s Office of the Solicitor has issued Memorandum M-37050, dated December 22, 2017, which concludes that the Migratory Bird Treaty Act’s prohibition on the “taking” or “killing” of migratory birds applies only to deliberate acts, such as hunting, intended to take a migratory bird. The legal opinion reverses the…

In Defenders of Wildlife v. Zinke, the Ninth Circuit upheld the Biological Opinion prepared by the U.S. Fish & Wildlife Service to assess the impacts on the threatened desert tortoise from the Silver State South solar project in southern Nevada.  856 F.3d 1248 (9th Cir. 2017).  A key takeaway from the decision is the substantial deference that the courts give to the scientific judgments of the FWS, especially in the face of scientific uncertainty.

The Biological Opinion

The principal issue in the case was that the project, which required approval by the Bureau of Land Management of a right-of-way over federal land, would narrow the corridor for the movement of the desert tortoise through the Ivanpah Valley in southern Nevada, although the project and the affected corridor were located outside of the species’ designated critical habitat.  The Biological Opinion recognized that the project’s impact on the “connectivity” of the tortoise’s movement through the Valley was uncertain in light of the available data.  But it found that the corridor provided for the species’ movement was likely to be sufficiently wide and it included a monitoring program that would be used to develop conservation measures to identify and address any negative impacts if they did occur.

In accordance with the procedures for “formal consultation” under the Endangered Species Act, the Biological Opinion made a “no jeopardy” finding, which determined that the project would not jeopardize the continued existence of the tortoise.  The Biological Opinion further concluded that formal consultation was not required to assess the potential modifications to the critical habitat for the tortoise, and instead relied on the more summary process of “informal consultation” to find that the project was not likely to affect this habitat.

Based on the Biological Opinion, in 2014 the BLM approved the federal right-of-way for the project.

The Ninth Circuit’s Decision

In upholding the Biological Opinion, the Ninth Circuit first rejected the plaintiff’s claim that the FWS did not adequately specify the applicable mitigation measures to support the “no jeopardy” finding.  The court reasoned that nothing in the ESA required firm, binding mitigation to address negative effects that are uncertain to occur.  The court explained that “our precedents do not require mitigation measures to be identified or guaranteed when the mitigation measures themselves may be unnecessary.”

The court further explained that, while a Biological Opinion must use the best scientific data that is available, the court was required to defer to the FWS in the face of scientific uncertainty.  As the court cautioned, “it is not our job to task the FWS with filling the gaps in the scientific evidence” and “we must respect the agency’s judgment.”  The court quoted the district court’s finding that “the FWS cannot be expected to respond to data that is not yet available to surmise potential mitigation actions that are not needed under the agency’s current interpretation of the data.”…
Continue Reading Ninth Circuit Upholds Biological Opinion for Silver State South Solar Project in Nevada

The California Supreme Court has ruled that, under the California Endangered Species Act, a plaintiff may use a delisting petition to challenge the original decision by the California Fish and Game Commission to list an endangered species—even in the absence of changes occurring after the original listing of the species.  Central Coast Forest Association v. …