Thursday, September 17, 2015

Ninth Circuit Upholds Groundwater Pump Test in Nevada against ESA Challenge

On September 17, the Ninth Circuit (Schroeder, Callahan, Pratt (by designation)) issued a decision in Center for Biological Diversity v. Fish and Wildlife Service.  In 2002, the Nevada state engineer ordered water rights holders in the Coyote Spring Valley of Nevada to conduct a study of the effects of groundwater pumping in the area.  The Fish and Wildlife Service (FWS) was concerned about the potential effects of the pump test on the Moapa dace, a small endangered fish in the minnow family.  FWS entered into a memorandum of agreement with the other rights holders to take certain conservation measures to protect the Moapa dace from the potential impacts of the pump test.  Pursuant to its obligations under the Endangered Species Act, FWS issued a Biological Opinion analyzing the pump test’s impacts on the Moapa dace and concluding that the test would not be likely to jeopardize the continued existence of the Moapa dace.  The Coalition for Biological Diversity sued to challenge the adequacy of the Biological Opinion.  The district court granted summary judgment for FWS.

The Ninth Circuit affirmed.  First, the court held that CBD had standing to bring its suit, because setting aside FWS’s Biological Opinion could result in stronger conservation measures.  Second, the conservation measures identified in the Memorandum of Agreement qualify as enforceable under the ESA.  Because the Agreement—not the underlying groundwater pumping—was the federal action triggering the ESA, it was not necessary for the conservation measures to be enforceable against the private parties engaged in the pumping.  Third, the fact that the terms of the Agreement were negotiated does not support a conclusion that the Biological Opinion’s analysis of the Agreement was not supported by the best available science.  Fourth, the record supported the Biological Opinion’s conclusion that the Agreement’s conservation measures will adequately protect the Moapa dace.

—Todd Aagaard

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