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Ninth Circuit Invalidates Biological Opinion on Ruby Pipeline

November 27, 2012

Last month, the U.S. Court of Appeals for the Ninth Circuit invalidated ESA-related approvals for the western interstate Ruby Pipeline Project (Project). Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., 698 F.3d 1101 (9th Cir. 2012) (Ruby Pipeline Opinion). The Court found that, during ESA consultation, the U.S. Fish and Wildlife Service (FWS) improperly relied on voluntary conservation measures not enforceable under the ESA, and also failed to consider the potential impacts of groundwater pumping on fish. The Court also invalidated the Record of Decision (ROD) issued by the Bureau of Land Management (BLM) because it relied on the BiOp.

The Ruby Pipeline Opinion is a cautionary tale. While conservation agreements can help ensure that listed species are not “jeopardized” by an action with a federal nexus, the terms of those agreements must be enforceable under the ESA, or agencies and project proponents risk being sent back to the drawing board.

ESA Legal Background

Under ESA section 7, a federal agency must “insure that any action authorized, funded, or carried out by such agency … is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species.”[1] Before beginning any “major construction activities,” agencies must prepare a “biological assessment” (BA) to determine whether listed species or critical habitat “are likely to be adversely affected” by the proposed action.[2] If they will, then the action agency must formally consult with the appropriate wildlife Service (here, FWS) before undertaking the action.[3]

If FWS concludes that jeopardy or adverse modification is likely, then any take resulting from the proposed action could result in section 9 liability, unless an exception or exemption applies.[4] “Although a federal agency or project applicant is ‘technically free to disregard a Biological Opinion [(BiOp)] and proceed with its proposed action, … it does so at its own peril (and that of its employees), for ‘any person’ who knowingly ‘takes’ [a member of] an endangered or threatened species is subject to substantial civil and criminal penalties, including imprisonment.’”[5]

If FWS concludes that no jeopardy or adverse modification is likely to occur, but that the project is likely to result only in the “incidental take” of members of listed species, then the Service will provide an incidental take statement (ITS) in its BiOp that authorizes those takings.[6] The ITS exempts persons from section 9 liability so long as any incidental takings committed during the evaluated activities are otherwise lawful and comply with the ITS’s terms and conditions.[7]

Factual Background

The Ruby Pipeline Opinion involves the construction, operation, and maintenance of a 42-inch diameter natural gas pipeline extending from Wyoming to Oregon over 678 miles (Project). The right-of-way encompasses approximately 2,291 acres of federal land and crosses 209 rivers and streams that support federally endangered and threatened fish species.

In 2009 and 2010, action agencies (the Federal Energy Regulatory Commission (FERC) and BLM) and project proponent Ruby Pipeline LLC (Ruby) acquired the federal and state approvals required for construction, operation and maintenance. See Construction Begins on Pipeline to Bring Rocky Mountain Gas to West Coast; Legal Challenges Linger, Marten Law News (Oct. 22, 2010). In June 2010, FWS issued its Biological Opinion on the Project, addressing potential effects on five species of trout, sucker, chub and pikeminnow in Oregon and Nevada waters, and four species of chub, sucker and pikeminnow that live in the Colorado River system.

In the BiOp, FWS factored into its evaluation several “voluntary” conservation actions that Ruby stated it would facilitate, set forth in an Endangered Species Conservation Action Plan (CAP). The Service found that the Project would adversely affect nine species, but that it would not jeopardize those species or adversely modify their critical habitat so long as specific terms and conditions were met. The Service therefore provided an ITS authorizing mortality of certain species of listed trout and sucker. FWS had previously “formally acknowledged” the “beneficial nature” of the CAP measures.[8] However, while Ruby committed to implement those measures, FERC did not propose them as part of the proposed action in the BA. The actions were memorialized in a stand-alone agreement termed a “Letter of Commitment.” The document set forth the nature and limits of Ruby’s commitments to “fund and/or implement” certain conservation measures intended to benefit listed species in the Project action area, but characterized the agreement and CAP “as entirely independent of the requirements of section 7 of the ESA[.]”[9] Ruby committed to fully fund seven of the twelve measures outlined in the CAP. Remaining measures would be implemented subject to FWS’s ability to obtain cost-share funding. In the event that FWS could not obtain funding, Ruby agreed to pay reasonable costs “as determined by Ruby in its sole discretion.”[10] The Letter did not set forth penalties or other consequences for failure to implement any CAP measures. The CAP measures were incorporated into the FERC Certificate and BLM’s Record of Decision, however, violation of which would give rise to considerable penalties, subject to discretionary agency enforcement.[11]

During consultation, FWS considered the CAP measures to be “reasonably certain to occur, to be implemented by Ruby in the future,” however, so analyzed their effects within the cumulative effects and conclusion sections of the BiOp.[12]

In June 2010, BLM issued its Record of Decision (ROD), granting rights-of-way and other necessary permits over federal lands. On July 30, 2010, FERC provided the initial notice to proceed with construction, and work began.

Construction of the Ruby Pipeline was completed in the summer of 2011. On July 28, 2011, FERC issued an Order placing the Project into service. The pipeline, now owned and operated by Kinder Morgan Inc., has operated steadily since then, and continues today.

The Ruby Pipeline Opinion

In July and September 2010, several different petitioners challenged the Project in the Ninth Circuit:[13] environmental groups the Center for Biological Diversity, Defenders of Wildlife, Sierra Club, and Great Basin Resource Watch; Wyoming group the Coalition of Local Governments; Warner Barlese (member of the Summit Paiute Tribe and chairman of the Tribal Council), and the Fort Bidwell Indian Community of the Bidwell Reservation of California.

BLM and FWS were named as Respondents, and Ruby intervened on the side of Federal Respondents. The Ninth Circuit addressed the Petitioners’ challenges under ESA, NEPA, NHPA and CWA. It found that the challenged Project approvals complied with the CWA and NHPA, but violated the ESA and NEPA.

ESA

The Court’s published opinion focused on the ESA—particularly, “the propriety of FWS’s ‘no jeopardy’ conclusion, and the BLM’s reliance on that conclusion in issuing its [ROD].”[14] The Court agreed with two of petitioners’ arguments on why the BiOp and its accompanying ITS were arbitrary and capricious:

1) because, in reaching “no jeopardy” and “no adverse modification” determinations in the BiOp, the agency relied on the protective measures set forth in the CAP that the Court determined was not enforceable under the ESA; and

2) because the BiOp did not consider the impacts of withdrawing 338 million gallons of groundwater from 64 wells along the pipeline.[15]

The Court first considered whether FWS permissibly considered the CAP measures when making its jeopardy determination. The Court found that, while Ruby faced potentially severe consequences if it failed to meet its CAP commitments, those consequences are in the discretion of FERC and BLM, not FWS—the agency with wildlife conservation expertise.[16]

The Court decided that the CAP should have been part of the proposed action. Because it wasn’t, FWS “should not have treated its anticipated benefits as background cumulative effects and used them as a basis for determining the likely effects of the Project. Doing so rendered the [CAP] unenforceable under the ESA, depriving FWS of the power to ensure that the measures were actually carried out.”[17] The Court determined that “miscategorizing mitigation measures as ‘cumulative effects’ rather than conservation measures incorporated in the proposed project profoundly affects the ESA scheme. Any such miscategorization sidetracks FWS, the primary ESA enforcement agency; precludes reopening the consultation process when promised conservation measures do not occur; and eliminates the possibility of criminal penalties and exposure to citizen suit enforcement incorporated in the ESA to assure that listed species are protected.”[18]

Resolving uncertainty in prior precedents, the Court clarified the requirements for conservation agreements to be considered during consultation. Specifically:

[A] conservation agreement entered into by the action agency to mitigate the impact of a contemplated action on listed species must be enforceable under the ESA to factor into FWS’s “[BiOp] as to whether [an] action, taken together with cumulative effects, is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat.” … Congress did not contemplate leaving the federal government’s protection of endangered and threatened species to mechanisms other than those specified by the ESA, the statute designed to accomplish that protection. Rather, it entrusted the federal government’s protection of listed species and critical habitat to the Act’s own provisions, and to FWS, the agency with the expertise and resources devoted to that purpose.[19]

The Court also addressed petitioners’ objections to the BiOp based on FWS’s failure to address what effects, if any, the withdrawal of groundwater by Ruby (for hydrostatic testing and dust abatement) would have on listed species. Respondents and Respondent-Intervenor argued that the groundwater was not a relevant factor requiring consideration in the BiOp, because the listed species don’t reside there. The Court disagreed, finding that, although fish “obviously … do not live underground[,]” groundwater and surface water are “physically interrelated as integral parts of the hydrologic cycle’” such that depletion of “groundwater levels could conceivably alter surface water levels” which may, in turn, affect listed fish.[20] It therefore held that groundwater withdrawals constitute a relevant factor for purposes of the jeopardy determination, and that FWS acted unreasonably by failing to address those in its BiOp.

The Court ultimately concluded that the BiOp was flawed legally—”because it relied in large part on the beneficial effects of the [CAP] measures as ‘cumulative effects’ to reach its “no jeopardy” and ‘no adverse modification’ determinations—and inadequate with regard to evaluating the potential impacts of the Project’s groundwater withdrawals. Accordingly, the BLM violated its substantive duty to ensure that its authorization of the Project would not jeopardize the survival of the nine listed fish or adversely modify the species’ critical habitat.”[21]

NEPA

In an unpublished opinion issued the same day, the Court also determined that the Final EIS for the Project failed to provide sufficient data about “the cumulative loss of sagebrush steppe vegetation and habitat.” While the Court determined that several other NEPA challenges were moot, it held that the cumulative effects challenge was not because a new Final EIS “could still yield effective post-construction relief in the form of mitigation.”[22]

Finding a NEPA violation, the Court therefore also required BLM to conduct a new cumulative impact analysis on remand.

Remedy and Practical Consequences

Petitioners sought to avoid this result—construction of a project that they sought to halt entirely—by seeking injunctive relief early in the litigation. The Court, however, denied those motions.

Ruby subsequently moved for partial dismissal on mootness grounds. Post-construction, Ruby argued that it was “simply too late” for the agencies to “take any effective actions to redress many of Petitioners’ central claims in the hypothetical circumstance of a remand … .”[23] Ruby acknowledged that construction completion does not automatically moot environmental claims, as the Court could invoke its equitable powers to change the project, and petitioners could obtain relief of some sort through additional required mitigation. Regardless, Ruby argued that the agency with “exclusive authority to alter the location of the Project, FERC, is not before the Court” so the Court lacked authority to order alteration.[24]

Federal Respondents agreed, arguing that “abandoning or removing the already buried and operational pipeline would not relieve any of the environmental or historic[al] preservation concerns presented …. Such an action could only create additional impacts along whatever alternate route FERC might choose to authorize.”[25]

Petitioners argued that the Court could still provide effective relief by, for example, ordering restoration and mitigation of waterbodies, on- or off-site, and implementation of measures enforceable under the ESA.[26]

The Court deferred judgment on mootness until submission of the case on the merits and oral argument.[27] In its 2012 Opinion, it noted: “That the pipeline was completed and put into service during the pendency of this lawsuit does not render the petitioners’ challenges moot. It is still possible to mitigate the Project’s adverse effects on listed species and critical habitat.”[28] The necessary extent of that mitigation is now largely in the discretion of FWS.

The Court vacated and remanded the BiOp and ROD to FWS and BLM, respectively. On remand, FWS must prepare a revised BiOp that: 1) addresses impacts of groundwater withdrawals on listed fish and critical habitat; and 2) categorizes and treats the CAP measures as “interrelated actions” under the ESA only, or “excludes any reliance on their beneficial effects in making a revised jeopardy and adverse modification” determination. BLM must undertake another cumulative effects analysis that complies with NEPA.[29]

As with reinitiation of consultation, when a BiOp is vacated, it “loses its validity, as does its accompanying [ITS], which then no longer shields the action agency from penalties for takings.”[30] Accordingly, neither BLM nor the Project’s operators have immunity from section 9 liability for incidental takings. If any listed species or critical habitat are harmed in a manner that violates the ESA, those actions may be subject to section 9 enforcement—unless and until FWS issues a new BiOp and ITS. Still, the majority of incidental take was anticipated to occur during construction activities. The risk of ESA liability as a result of ongoing operations may therefore be less than one might immediately assume.

Practice Implications

To avoid invalidation of a BiOp, ITS, ROD and associated ESA-based approvals in the Ninth Circuit’s jurisdiction, action agencies, project proponents, and consulting Services could consider the following lessons from the Ruby Pipeline Opinion:

1. If an action agency (and project proponent) wants conservation measures to be considered in the jeopardy assessment, the agency should include those as part of the proposed action to ensure the measures are enforceable under the ESA.

2. When considering conservation measures outside of a proposed action that could avoid jeopardy or minimize incidental take, the Service could include those measures as terms and conditions in an ITS. The measures would be designed to minimize (rather than mitigate) incidental takings within the action area.[31]

For more information contact Jessica Ferrell or any other member of Marten Law’s Natural Resources or Water Resources practice groups.

[1] 16 U.S.C. § 1536(a)(2).

[2] 50 C.F.R. § 402.12.

[3] Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., 698 F.3d 1101, 2012 WL 5193100 at *1 (9th Cir. 2012) (Ruby Pipeline Opinion) (citing 50 C.F.R. § 402.14; Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1020 (9th Cir. 2012) (en banc); Sierra Club v. Babbitt, 65 F.3d 1502, 1505 (9th Cir.1995)).

[4] Id. (citing cases).

[5] Id. (citing Bennett v. Spear, 520 U.S. 154, 170 (1997); San Luis & Delta–Mendota Water Auth. v. Salazar, 638 F.3d 1163, 1170(9th Cir.2011) (“[T]he determinative or coercive effect of a [BiOp] stems directly from the Service’s power to enforce the no-take provision in ESA § 9....”)).

[6] Id. (citing 50 C.F.R. § 402.14(i)).

[7] Id. (citing 16 U.S.C. § 1536(o)).

[8] Ruby Pipeline BiOp at 5.

[9] Ruby Pipeline Opinion, 2012 WL 5193100 at *5.

[10] Id. (citing Letter of Commitment).

[11] Id.

[12] Id. at *2; Ruby Pipeline BiOp at 5.

[13] The Ninth Circuit has original and exclusive jurisdiction under 15 U.S.C. § 717r(d)(1).

[14] Ruby Pipeline Opinion, 2012 WL 5193100 at *1 (9th Cir. 2012).

[15] Id.

[16] Id. at 7.

[17] Id. at 8.

[18] Id. at 11.

[19] Id. at 12 (quoting 50 C.F.R. § 402.14(g)(4)) (emphasis in original).

[20] Id. at 17-18.

[21] Id. at 23.

[22] Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., No. 0-72356, Memorandum, Dkt. 164 at 4-5 (Oct. 22, 2012) (citing case).

[23] Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., No. 0-72356, Ruby Pipeline LLC Mot. for Partial Dismissal, Dkt. 138-1 (Sept. 13, 2011).

[24] Id.

[25] Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., No. 0-72356, Fed. Def. Resp. in Supp. of Ruby Pipeline LLC Mot. for Partial Dismissal, Dkt. 144 (Sept. 22, 2011).

[26] Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., No. 0-72356, Resp. in Opp. to Ruby Pipeline LLC Mot. for Partial Dismissal, Dkt. 146 (Sept. 23, 2011).

[27] Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., No. 0-72356, Order, Dkt. 150.

[28] Ruby Pipeline Opinion, 2012 WL 5193100 at *1, n.2 (9th Cir. 2012) Compare Pyramid Lake Paiute Tribe of Indians v. Hodel, 882 F.2d 364, 368–69 (9th Cir.1989), with Feldman v. Bomar, 518 F.3d 637, 642–44 (9th Cir. 2008).

[29] Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., No. 0-72356, Memorandum, Dkt. 164 at 14 (Oct. 22, 2012).

[30] Ruby Pipeline Opinion, 2012 WL 5193100 at *1 (citing cases and the Services’ Endangered Species Consultation Handbook (1998).

[31] See id. at 9, n.9 (citing cases and regs). Ruby argued that an agency cannot require mitigation through an ITS’s terms and conditions because, according to the Service’s handbook, “[ESA] section 7 requires minimization of the level of take. It is not appropriate to require mitigation for the impacts of incidental take.” Ruby Resp., Dkt. 95 at 41 (March 25, 2011).

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