Honorable James A. Soto, United States District Judge.
Pending before the Court are the parties' cross-motions for summary judgment as to the Complaint (Docs. 106, 119, 121),
The facts are well known to the parties and were discussed in the Court's previous Order (Doc. 248).
The United States Fish and Wildlife Service ("FWS") and the United States Forest Service ("Forest Service") consulted on Rosemont's proposal for a large-scale open-pit-mining operation within the boundaries of the Coronado National Forest on the east side of the Santa Rita Mountains ("Rosemont Mine"). The Santa Rita Mountains lie to the south of Tucson, Arizona and are within the Coronado National Forest, which is managed by the Forest Service. The Rosemont Mine is projected to impact thousands of acres of the Santa Rita Mountains and many species in the surrounding area. The FWS and the Forest Service completed consultation when the FWS issued the 2016 Biological Opinion ("BiOp").
The open-pit mine itself, which contains the valuable minerals (primarily copper) that Rosemont proposes to extract, will directly impact approximately 955 acres of land.
The Action Area of the Rosemont Mine includes portions of critical habitat, or proposed critical habitat, for listed species, including: the jaguar, northern Mexican gartersnake, Gila chub, Yellow-billed Cuckoo, Southwestern Willow Flycatcher, Chiricahua leopard frog, and Huachuca water umbel.
The BiOp found that the Rosemont mine would affect a number of species that are listed as either endangered or threatened, and their respective habitats. However, the FWS concluded that none of the species would be jeopardized, and that none of the critical habitats were likely to be destroyed or adversely affected by the Rosemont Mine.
The FWS determined that the Rosemont Mine would result in incidental takings for a number of aquatic and riparian species; as it found that an individualized numerical limit was impractical, the FWS used a surrogate groundwater drawdown for the taking of these species.
The jaguar is a large nocturnal member of the cat family. It is "cinnamon-buff in color with many black spots; melanistic (dark coloration) forms are also known, primarily from the southern part of the range." FWS046392. The jaguar was listed as endangered in 1972 under the Endangered Species Conservation Act of 1969, which preceded the ESA. The jaguar was not listed in the United States under the ESA until 1997. At that time, the FWS determined that designating critical habitat was not prudent. This determination was challenged and set aside in 2009. CBD v. Kempthorne, 607 F.Supp.2d 1078, 1091 (D. Ariz. 2009). The FWS then reevaluated and determined that it was prudent and beneficial to designate critical habitat for the jaguar.
In 2012, a Recovery Outline was created for the jaguar. The Recovery Outline explained how peripheral populations are essential for the conservation and evolution of the species. It included two recovery units: the Northwestern Recovery Unit ("NRU") and the Pan American Recovery Unit, both of which are essential for the species' recovery. The units also designate land as core, secondary, and peripheral. The United States only contains land within the Borderlands Secondary area of the NRU; it does not contain core habitat. As discussed in detail later in this Order, this land is still essential to the longevity of the jaguar because it provides connectivity and expansion habitat.
In 2014, the FWS designated 6 units of critical habitat in southern Arizona and southwestern New Mexico for the jaguar. The following units were determined to be occupied at the time of listing and met the requirements for designation as occupied habitat: 1a, 2, 3, 4a, 5, and 6. Subunits 1b, 4b, and 4c were determined to be unoccupied, but essential. The FWS recognized the inherent uncertainty in the occupancy determination and considered if the occupied units qualified as critical habitat under the unoccupied standard.
The proposed mine is within this designated critical habitat; specifically, it is in Unit 3, and affects Subunit 4b. The FWS found that there would be "direct loss of designated critical habitat," "indirect effects to critical habitat and reduced connectivity," but that there was not a high probability that the action would result in destruction or adverse modification.
In May 2018, the FWS initiated a status review for the jaguar.
Courts are obligated to "hold unlawful and set aside agency action, findings, and conclusions found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2); W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 496 (9th Cir. 2011)
When agencies have disagreement within their ranks or change position prior to the final action, courts must determine "whether the [agency], in reaching its ultimate finding, `considered the relevant factors and articulated a rational connection between the facts found and the choices made.'" Nw. Ecosystem All. v. FWS, 475 F.3d 1136, 1145 (9th Cir. 2007) (quoting Nat'l Ass'n, of Home Builders v. Norton, 340 F.3d 835, 841 (9th Cir. 2003)). Agencies are permitted to change their minds. See CBD v. Zinke, 868 F.3d 1054, 1060-61 (9th Cir. 2017): Defs. of Wildlife v. Zinke, 856 F.3d 1248, 1262 (9th Cir. 2017); Butte Envtl. Council v. U.S. Army Corps of Engineers, 620 F.3d 936, 946 (9th Cir. 2010). A disagreement between a draft written by staff members and the final agency document is not dispositive, but it is also not irrelevant. CBD v. Zinke, 868 F.3d at 1060-61. The Ninth Circuit has stated that it is the task of courts "to review the change of course to ensure that it is based on new evidence or otherwise based on reasoned analysis." Id. at 1061.
If Congress' intent is clear and unambiguous, then courts give effect to that clear and unambiguous meaning. See N. Cal. River Watch v. Wilcox, 633 F.3d 766, 772 (9th Cir. 2011) (applying Chevron deference to the ESA). If there is an ambiguity and Congress delegated authority to the agency, courts must determine if the agency's interpretation is reasonable, while affording the agency a high level of deference for their interpretation. Id. at 773.
"As we homogenize the habitats in which these plants and animals evolved, and as we increase the pressure for products that they are in a position to supply (usually unwillingly) we threaten their—and our own—genetic heritage. The value of this genetic heritage is, quite literally, incalculable.... Sheer self-interest impels us to be cautious." Tenn. Valley Auth. v. Hill, 437 U.S. 153, 178, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) (quoting H.R. Rep. No. 93-412, pp. 4-5 (1973)). It is with that background that Congress enacted the ESA to "halt and reverse the trend toward species extinction, whatever the cost." Id. at 184, 98 S.Ct. 2279.
The ESA works to accomplish its goals in several ways. The Secretary
Section 7 of the ESA requires every federal agency to consult with the Secretary, which in this matter is effectively the FWS, to "insure that any action authorized, funded, or carried out by such agency [hereinafter, "agency action", in this section] is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [previously designated critical] habitat ..., unless such agency has been granted an exemption for such action by the Committee pursuant to subsection (h) of this section. In fulfilling the requirements of this paragraph each agency shall use the best scientific and commercial data available." 16 U.S.C. § 1536(a)(2).
The consultation requirement applies to affirmative actions within the agency's discretion. Karuk Tribe of California v. Forest Service, 681 F.3d 1006, 1011 (9th Cir. 2012). Consultation typically begins with a biological assessment ("BA"). If the action is likely to adversely affect a listed species or its designated critical habitat, then formal consultation shall commence. 50 C.F.R. §§ 402.12(k), 402.14(a). Formal consultation concludes when the FWS issues a biological opinion ("BiOp"). 50 C.F.R. § 402.14(m).
If the FWS determines that the proposed action is likely to "jeopardize the continued existence of" any listed species or result in the destruction or adverse modification of its designated critical habitat, then the BiOp must include reasonable and prudent alternatives, if any. 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(g-h). "`Jeopardize the continued existence of" means to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species." 50 C.F.R. § 402.02 (2009). The BiOp is a final agency action subject to judicial review. Nat'l Wildlife Fed'n v. NMFS ("NWF v. NMFS"), 524 F.3d 917, 925 (9th Cir. 2008).
If the FWS concludes that agency action is not likely to jeopardize a listed species,
"The term `critical habitat' ... means— (i) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 1533 of this title, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 1533 of this title, upon a determination by the Secretary that such areas are essential for the conservation of the species." § 1532(5)(A). "The statute [and the regulations] thus differentiate[] between `occupied' and `unoccupied' areas, imposing a more onerous procedure on the designation of unoccupied areas by requiring the Secretary to make a showing that unoccupied areas are essential for the conservation of the species." Arizona Cattle Growers' Ass'n v. Salazar, 606 F.3d 1160, 1163 (9th Cir. 2010).
"The Secretary shall designate critical habitat, and make revisions thereto, under subsection (a)(3) on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat." § 1533(b)(2); see 50 C.F.R. § 424.12(a) (2012) ("A final designation of critical habitat shall be made on the basis of the best scientific data available, after taking into consideration the probable economic and other impacts of making such a designation in accordance with § 424.19.").
The ESA makes conservation crucial to understanding critical habitat. "Critical habitat ... is defined in relation to areas necessary for the conservation of the species, not merely to ensure its survival." Arizona Cattle Growers' Ass'n, 606 F.3d at 1166 (emphasis in original); see Gifford Pinchot Task Force v. FWS, 378 F.3d 1059, 1070 (9th Cir. 2004), superseded on other grounds by 81 Fed. Reg. 7214 (Feb. 11, 2016) ("Clearly, then, the purpose of establishing `critical habitat' is for the government to carve out territory that is not only necessary for the species' survival, but also essential for the species' recovery."). "The terms `conserve', `conserving', and `conservation' mean to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which
The determination as to whether land is occupied or unoccupied "is a highly contextual and fact-dependent inquiry." Arizona Cattle Growers' Ass'n, 606 F.3d at 1164. "Relevant factors may include how often the area is used, how the species uses the area, the necessity of the area for the species' conservation, species characteristics such as degree of mobility or migration, and any other factors that may bear on the inquiry. Such factual questions are within the purview of the agency's unique expertise and are entitled to the standard deference afforded such agency determinations" Id. at 1164-65. Courts must consider whether the proposed interpretation is permissible considering the particular species in question and the factors provided by the Ninth Circuit. Id. at 1165. The fact that an area might be suitable for future occupancy may not be used to determine that an unused area is occupied. Id. at 1167.
"The Secretary shall designate as critical habitat areas outside the geographical area presently occupied by a species only when a designation limited to, its present range would be inadequate to ensure the conservation of the species." 50 C.F.R. § 424.12(d-e).
Section 9 prohibits "taking" of any endangered species. 16 U.S.C. § 1538(a)(a). As discussed above, the FWS may provide an ITS as a part of a BiOp. § 1536(b)(4). "`Incidental take' refers to takings that result from, but are not the purpose of, carrying out an otherwise lawful activity conducted by the Federal agency or applicant." 50 C.F.R. § 402.02 (2013). An ITS must include written statements that "(i) specifies the impact of such incidental taking on the species, (ii) specifies those reasonable and prudent measures that the Secretary considers necessary or appropriate to minimize such impact, (iii) in the case of marine mammals, specifies those measures that are necessary to comply with section 1371(a)(5) of this title with regard to such taking, and (iv) sets forth the terms and conditions (including, but not limited to, reporting requirements) that must be complied with by the Federal agency or applicant (if any), or both, to implement the measures specified under clauses (ii) and (iii)." 16 U.S.C. § 1536(b)(4). This statement then acts as an exemption to the prohibition for taking. § 1536(o)(2).
As discussed in detail below, Section Three of this Order examines the issues in which summary judgment is granted in favor of Plaintiff, and where remand to the agency for reconsideration is warranted.
Plaintiff argues that the FWS improperly used a heightened standard of review in determining that the Rosemont Mine was not likely to result in the destruction or adverse modification of the jaguar critical habitat; the Court agrees.
As a part of the ESA's "institutionalized caution" to protect species, "whatever the cost[,]" federal agencies must ensure that agency actions are "not likely to ... result in the destruction or adverse modification of" a species' critical habitat. § 1536(a)(2); Tennessee Valley Auth., 437 U.S. at 185, 194, 98 S.Ct. 2279. The BiOp defined "likely" in the legal standards and definitions section of the proposed critical habitat within the jaguar section as follows: "Merriam Webster's Collegiate Dictionary,
Plaintiff correctly highlights past regulations, rules, and litigation whereby both the FWS, and the National Marine Fisheries Service ("NMFS"), appropriately defined "likely" as: "more likely than not," "probability of 50% or greater", "probable"; the FWS' and NMFS' more likely than not definition is consistent with the ESA's institutionalized caution to protect species. See Doc. 107 at 20-21 (citing Alaska Oil & Gas Ass'n v. Pritzker, 840 F.3d 671, 684 (9th Cir. 2016); In re Polar Bear Endangered Species Act Listing & Section 4(d) Rule Litig. ("In re Polar Bear"), 709 F.3d 1, 14 (D.C. Cir. 2013); Trout Unlimited v. Lohn, 645 F.Supp.2d 929, 945 (D. Or. 2007); W. Watersheds Project v. U.S. Forest Serv., 535 F.Supp.2d 1173, 1184 (D. Idaho 2007)).) When an agency changes their position, as it did in this case (i.e., increasing the standard from more likely than not, to highly probable), it must provide a reasoned explanation. Nat'l Wildlife Fed'n v. Burford, 871 F.2d 849, 855 (9th Cir. 1989); see NWF v. NMFS, 524 F.3d at 928 (not deferring to an agency when they change approaches and the new approach is "completely at odds with [its] prior scientific approaches"). The record does not reflect any reasonable basis as to why the FWS applied a heightened standard that conflicts with the ESA's institutionalized caution in favor of protecting listed species; the heightened standard impermissibly constrains the effectiveness of the ESA's protections, which comes at a high, and potentially detrimental, cost to listed species and their habitat. See Tennessee Valley Auth., 437 U.S. at 185, 194, 98 S.Ct. 2279. Under the FWS' heightened standard, for example, even if agency action is "more likely than not" to result in the destruction or adverse modification of a species' critical habitat, such agency action would be proper as long as it was not "highly probable" to result in the destruction or adverse modification of a species' critical habitat. Citing to a single dictionary without explanation for the shift in policy, which is contrary to the protectionist nature of the ESA, is arbitrary and capricious.
Even if the FWS used an unlawfully heightened standard of review, Defendants argue that the decision was harmless. Harmlessness analysis is limited and will only be used "when a mistake of the administrative body is one that clearly had no bearing on the procedure used or the substance of decision reached." Gifford Pinchot Task Force, 378 F.3d at 1071 (emphasis in original). The burden is on the agency to show that the error was harmless. Id. The record, however, reflects that there is a "plausible argument that jaguar movement ... will be somewhat restricted[.]" FWS046439-40 (2013 BiOp stating that "[o]ur analysis makes a plausible argument that jaguar movement between units 3 and 4b will become somewhat restricted..."), FWS049637 (stating the same in the 2016 BiOp). The record reflects that the Rosemont Mine may likely result in the destruction or adverse modification of Unit 3 and Subunit 4b of the jaguar critical habitat. FWS047605
The agency unlawfully applied a heightened standard of review, and the Court cannot find that this error was harmless. On remand, the agency must reconsider whether the Rosemont Mine is "likely" to result in destruction or adverse modification of the jaguar's critical habitat under the proper more likely than not standard. Summary judgment is granted in favor of Plaintiff as to this issue and denied as to Defendants.
Plaintiff argues that the FWS failed to assess the "tipping" point (as required by Ninth Circuit precedent) for the northern Mexican gartersnake ("NMGS") in determining whether it would be jeopardized by the Rosemont Mine; the Court agrees.
The Ninth Circuit has found that jeopardy requires an agency to examine the effect on the species' likelihood of recovery, in addition to the likelihood of survival. NWF v. NMFS, 524 F.3d at 931. "Because a species can often cling to survival even when recovery is far out of reach, [only examining survival when considering jeopardy] reads `and recovery' entirely out of the text." Id. Accordingly, an agency must logically know the rough survival and recovery needs (i.e., "tipping points") to evaluate if a species will be jeopardized. Id. at 936. A tipping point analysis is often necessary to prevent a "death by a thousand pinpricks" by determining if an agency action with a small overall effect will push a species across the line to eventual extinction, or past a point from which recovery is impossible. See Rock Creek All. v. U.S. Forest Serv., 703 F.Supp.2d 1152, 1205 (D. Mont. 2010), aff'd in part sub nom. Rock Creek All. v. FWS, 663 F.3d 439 (9th Cir. 2011).
The NMGS was not a listed species when the 2013 BiOp was created, and therefore it was not substantively included. After it was listed as a threatened species in 2014, the NMGS was included in the 2016 BiOp. Section 7 consultation occurred contemporaneously with the listing of the NMGS as a threatened species.
However, as FWS' record reflects, the Rosemont Mine will have extensive adverse impacts on the NMGS far into the future, including, but not limited to, decreased groundwater levels culminating in loss of prey and prey habitat for the NMGS, and loss of its own habitat. FWS049507 ("The primary cause of adverse effects from the proposed action is the long-term, permanent degradation to the gartersnakes' prey community due to the adverse, indirect effects from a lowering groundwater table[.]"); FWS049508-09 (The FWS anticipates "significant losses of [NMGS] as an indirect effect from the anticipated degradation and ultimate disappearance of Empire Spring.... The loss or significant degradation of the resident Chiricahua leopard frog metapopulation in the area, as a result of the loss of a critical source population, would place significant nutritional strain on [NMGS] and weaken the functionality of the habitat for recovery as a whole for [NMGS], in perpetuity."); FWS049514-15 ("This potential, irreversible, adverse effect to primary constituent element 3 presents a significant challenge for this proposed subunit in meeting its role in future recovery and conservation of the [NMGS]."); FWS131404 ("The best available scientific and commercial information indicates that any reduction in the presence or availability of water is a significant threat to the [NMGS], [its] prey base, and their habitat."). The NMGS, for example, feeds primarily on ranid frogs, such as the Chiricahua leopard frog. FWS049508. Declining prey populations will likely result in a less resilient NMGS population. Id.; FWS049508 ("[E]xaggerated effects to chub and ranid frog populations will have exaggerated effects to the [NMGS] population."); FWS131386 ("Declines in prey base have led to subsequent declines in the distribution and density of [the NMGS] population, .... [The NMGS] may be particularly vulnerable to the loss of native prey species."); FWS131391 ("A former large, local population of [NMGS]... in southeastern Arizona has also experienced a correlative decline of leopard frogs, and [NMGS] are now thought to occur at very low population densities or may be extirpated there."); FWS049474-81 (further discussing Rosemont Mine's negative impacts on the Chiricahua leopard frog-a key prey base for the NMGS).
Moreover, the affected area is uniquely important to the NMGS. FWS049517 ("We suspect that Empire Spring serves a critical and unique role in keeping metamorphosed frogs, which are exposed to Bd, alive over the winter to act as a source population of dispersing frogs within the metapopulation the next year.... The Las Cienegas NCA's and Pima County's Cienega Creek Natural Preserve's most unique and important attribute contributing to the
In light of the foregoing, the agency was required to consider the tipping point for the NMGS,
When the FWS concludes that an action (i.e., the Rosemont Mine) is not likely to jeopardize a listed species, but will likely result in incidental takings
As previously referenced, the ESA prohibits the taking of any listed species; an ITS acts as an exemption to the ESA's prohibition against taking. 16 U.S.C. § 1536(o)(2). An ITS must include a written statement that: "(i) specifies the impact of such incidental taking on the species, (ii) specifies those reasonable and prudent measures that the Secretary considers necessary or appropriate to minimize such impact, (iii) in the case of marine mammals, specifies those measures that are necessary to comply with section 1371(a)(5) of this title with regard to such taking, and (iv) sets forth the terms and conditions (including, but not limited to, reporting requirements) that must be complied with by the Federal agency or applicant (if any), or both, to implement the measures specified under clauses (ii) and (iii)." § 1536(b)(4). This statement then acts as an exemption to the prohibition against taking. § 1536(o)(2).
The Ninth Circuit has addressed the ITS process, stating in part: "[T]he permissible level of take ideally should be expressed as a specific number, [but a surrogate may be used if this is not possible]... The chosen surrogate, however, must be able to perform the functions of a numerical limitation. In particular, Incidental Take Statements [must] set forth a trigger that, when reached, results in an unacceptable level of incidental take, invalidating the safe harbor provision [of the ESA], and requiring the parties to re-initiate consultation ... We have previously invalidated Incidental Take Statements
In the case at bar, the FWS found that it was impractical to use an individualized numerical limit on incidental takings of seven listed species. As such, the FWS instead relied on a groundwater drawdown surrogate for the species that the Rosemont Mine would adversely impact (i.e., the Gila chub, Gila topminnow, Desert pupfish, Chiricahua leopard frog, northern Mexican gartersnake, Yellow-billed cuckoo, and Southwestern willow flycatcher—the groundwater drawdown surrogate used by the FWS is the same for all seven species).
Location 0 years, post 20 years, post 50 years, post 150 years, mining mining mining post mining Upper Empire 0.1 feet 0.5 feet 1.8 feet 5.0 feet Gulch springs Upper Cienega < 0.1 feet < 0.1 feet 0.15 feet 0.35 feet Creek Davidson/Cienega < 0.1 feet 0.15 feet 0.2 feet 0.2 feet confluence Lower Cienega < 0.1 feet < 0.1 feet < 0.1 feet < 0.1 feet Creek
In short, the FWS found that: the Rosemont Mine would result in decreased water flow to areas encompassing threatened or endangered species; this in turn would result in the take of these species through loss of habitat; determining individualized numerical take of these species was impractical; and therefore the FWS used water modeling (Tetra Tech (2010)-reflected in the chart above) to estimate take via groundwater drawdown amounts in relevant areas (i.e., loss of habitat) as a surrogate for individualized numerical take. In addition, the FWS recognized that the water modeling at issue had limitations, and therefore identified "potential" groundwater monitoring wells closer to the Rosemont Mine that could serve as "proxies" for allowable incidental take. If these incidental take thresholds are exceeded in the future, the FWS would evaluate whether new agency consultation needed to be reinitiated to attempt to remedy the excessive take of these species.
As Plaintiff correctly argues, there are numerous fundamental problems with this proxy for a surrogate model advanced by the FWS which thereby invalidates the ITS as unlawful.
For example, the FWS uses Tetra Tech modeling to predict groundwater drawdown (stemming from the Rosemont Mine) at Upper Empire Gulch and Cienega Creek. The model largely estimates groundwater drawdowns for these areas as ranging from 1.2 inches (0.1 feet) to 0.5 feet. However, as the Forest Service (and experts relied upon by the federal agencies) emphasized, the water modeling used (including Tetra Tech) could not reliably predict groundwater drawdowns that were less than 5 feet. See FEIS, Volume 2 at p. 294 ("The models used to predict impacts to groundwater availability have a level of uncertainty that must be considered when interpreting the model results. While the models can mathematically predict groundwater drawdown to thousandths of a foot, in reality this level of refinement is meaningless. The models were designed for the purpose of predicting the inflow of groundwater to the mine pit and the general drawdown that would occur in the regional aquifer; however, the farther the predictions are in terms of distance from the mine pit and the farther out in time the predictions occur, the less certain they become. The groundwater modeling experts contracted by the [Forest Service] determined that the reasonable limit of certainty of the groundwater models is the 5- to 10-foot drawdown contour. Within this contour, the groundwater models would be able to reasonably predict changes to wells, springs, and streams. Changes below
As referenced above, as the FWS was aware that there were limits to the Tetra Tech modeling, it also identified potential groundwater monitoring wells closer to the Rosemont Mine that could serve as proxies for groundwater drawdown, and it would re-run the Tetra Tech modeling with additional information. See 2016 BiOp at pp. 101-102. Nonetheless, re-running additional information from these potential wells with the Tetra Tech modeling would not change the hurdle that the modeling itself cannot reliably predict changes below 5 feet, and the predicted ITS drawdowns largely range from 0.1 feet to 0.5 feet.
Moreover, as recognized by the Forest Service, the groundwater levels in the basin at issue fluctuate greatly, which further undercuts the reliability of the monitoring at issue. See FEIS at pp. 294-295 ("[I]mpacts to springs and intermittent or perennial stream reaches could occur as a result of very small changes in groundwater level. This suggests that although these small levels of drawdown are beyond our ability to predict with numerical models, they could still cause impacts ... [T]he 5-foot threshold is also pertinent for a second reason, which is the natural seasonal variability of groundwater. Available data suggest that groundwater levels in the area naturally vary from year to year and from season to season. In a well in lower Davidson Canyon, groundwater levels have been observed to fluctuate by more than 10 feet in a single year ... Two stock wells along Empire Gulch have been monitored ... for three to four decades, and the results show that water levels have varied between 4 and 5 feet. Similar stock wells along Cienega Creek show variation between 3 and 5 feet ... Two wells immediately adjacent to lower Cienega Creek were monitored between 2007 and 2009 ... and exhibited a fluctuation in water level of up to 5 feet seasonally ... [A] similar analysis on a much greater number of wells located throughout the basin (not just near streams) found that the average short-term fluctuation in groundwater levels was 7.1 feet and that the long-term fluctuation in groundwater levels was 19.7 feet ... While drawdown of less than 5 feet could cause impacts to springs and surface waters, natural variability in groundwater levels is already causing changes of this magnitude in the vicinity of sensitive surface waters in the analysis area. This makes identification of drawdown that could be due to the mine dewatering impractical in the field because there is no reliable method for separating out ongoing seasonal or annual variation from impacts from the mine.").
Even if the FWS could determine through this monitoring regime whether 0.1 feet to 0.5 feet of groundwater drawdown (i.e., incidental take) has been exceeded in the pertinent basin after the Rosemont Mine commences (mining operations are expected to last 20 to 25 years), it may be too late to mitigate the excess incidental take impacting the threatened and endangered species as the impacts to the water at issue become permanent
Furthermore, if and when the FWS discovers groundwater drawdowns greater than the allowable take figures at issue, it is unclear if this would be determined to be excess take requiring re-initiation of agency consultation to mitigate the excess take; the course of action in these circumstances encompasses a process of group consultations with separate agencies, scholars, and Rosemont to reach a consensus on the issues. See 2016 BiOp at p. 105 ("If it is determined at any time via monitoring that the observed groundwater drawdowns exceed the upper bounds of the sensitivity analyses for the modeled groundwater drawdowns, including consideration of applicable daily and seasonal fluctuations, then it is possible that the take of Gila chub described in Table GC-4 has been exceeded. In this event, the USFS and Corps shall consult with Forest Service staff, FWS, Rosemont Copper, and/or the USGS, the University of Arizona, Bureau of Land Management, and/or other appropriate sources of expertise to seek consensus on whether the specific metrics identified in the take statement have been exceeded and whether the exceedance can be attributable to Rosemont's activities and thus be considered an exceedance of the take authorized by this Incidental Take Statement. The USFS and Corps may convene any of these individuals as a team, in consultation with FWS, which may advise USFS and the Corps. The USFS, Corps, and/or FWS have ultimate responsibility to make the determination of whether reinitiation of consultation is appropriate.").
The ITS in this case is unlawful as it fails to set forth a clear trigger that, when reached, results in an unacceptable level of incidental take (as to all seven listed species), invalidating the safe harbor provision of the ESA, and requiring the parties to re-initiate consultation. See Allen, 476 F.3d at 1037-1039. On remand, the agency must consider and formulate a proper ITS. Summary judgment is granted in favor of Plaintiff as to this issue and denied as to Defendants.
As discussed in detail below, Section Four of this Order examines the issues in
Plaintiff argues that the FWS erred by considering the Cienega Creek Watershed
Improvements or mitigation should only be considered if they include "specific and binding plans," and "a clear, definite commitment of resources for future improvement." NWF v. NMFS, 524 F.3d at 936. If an agency lacks the authority to "guarantee" a mitigation action, then that action should not be included in the agency's consideration. NWF v. NMFS, 524 F.3d at 936 n. 17. Mitigation measures must be "reasonably specific, certain to occur, and capable of implementation; they must be subject to deadlines or otherwise-enforceable obligations; and most important, they must address the threats to the species in a way that satisfies the jeopardy and adverse modification standards." CBD v. Salazar, 804 F.Supp.2d 987, 1001 (D. Ariz. 2011) (mitigation measures were not specific as the agency failed to definitively define the measures, some measures were "conceptual in nature only and may be altered, replaced, or abandoned," and approximately a third of the measures were unfunded). Otherwise, the mitigation is merely a suggestion and does not counteract harmful effects in a jeopardy analysis. CBD v. Rumsfeld, 198 F.Supp.2d 1139, 1144, 1153 (D. Ariz. 2002) (rejecting mitigation measures that did not have deadlines or stated objectives, and were "vague, entirely voluntary, and even if implemented [did] not come close to balancing the [adverse effects of the proposed action]").
The conservation measures at issue are binding on Rosemont. See FS0259770; FS0259764. These are not mere suggestions or promises; they are binding plans with deadlines and repercussions. See FS0259768 (recordation of covenants or conservation must be completed prior to construction on Forest Service lands); FWS046342 (requiring payments on April 1 of each year following the initial production of copper from the project); FWS046343 (requiring Rosemont to file an application to sever the water rights under the Cienega Conservation package). If the plans are approved, Rosemont will be bound to undertake their mitigation obligations, including, but not limited to, purchasing water rights currently held by Del Lago Golf Course, creating a fund of $2,000,000, placing a restrictive covenant or conservation easement on the Sonoita Creek Ranch property, and reestablishing the Sonoita Creek floodplain. These are binding, certain, and implementable. The BiOp and ROD bind Rosemont with sufficiently reasoned mitigation measures, and
Plaintiff argues that in the course of evaluating jeopardy and adverse modification of critical habitat as to various listed aquatic species impacted by the Rosemont Mine, the FWS failed to consider cumulative impacts of groundwater drawdown, in relation to existing and potential private wells in the area (Cienega Creek), and likewise failed to consider toxic heavy metal contaminants seeping into ground and surface water from materials at the Rosemont Mine. As these issues could have an impact on listed species or their critical habitat, Plaintiff argues they are relevant factors left unaddressed by the FWS, thereby undermining the BiOp.
Defendants argue that a review of the record reflects that these factors were considered throughout the ongoing consultation process between both the FWS and Forest Service, and therefore Plaintiff's claims on this ground fail; the Court agrees.
As to private wells, Plaintiff primarily relies on comments made by a consulting agency (i.e., the Bureau of Land Management — "BLM") whereby it raised concerns about private wells: proliferating the watershed over time, withdrawals exceeding recharge impacting groundwater levels, and the additive effect of these wells on top of the Rosemont Mine and climate change accelerating the decline of water in the area.
The record reflects that the FWS and Forest Service were aware of such issues, and considered them in the BiOp, FEIS, and the Forest Service's 2015 Supplemental Information Report ("SIR").
While cognizant of the pumping issues from private wells, the Forest Service also recognized that quantifying such effects was very problematic,
Nonetheless, the Forest Service considered well pumping along with other relevant factors in evaluating impacts to the area. See SIR at 84-85 ("Despite this uncertainty, the Forest Service has evaluated the application of [the stress scenario to the area] in conjunction with the mine drawdown ... There is a shared understanding among Federal specialists that the riparian system along Cienega Creek... is currently stressed from ongoing drought conditions. There is also a shared belief that such conditions will only get worse in the future due to climate change or development pressure. Equally, there is a shared understanding that while the mine has no responsibility for these other potential stresses, the mine drawdown will not occur in a vacuum, but will occur in an environment where these other stresses are likely to be degrading the riparian system. The additional stresses that could impact the system are illustrated in figure 9 [at p. 85 of the SIR, which addresses].... Range of estimated water demand from basin pumping [along with] ... estimated range of current and future aquifer stresses in the Cienega Creek basin....").
Likewise, these issues were considered by the FWS and Forest Service in the BiOps and FEIS. See FS0237049 (basin pumping, although speculative, has been analyzed in the FEIS as an ongoing trend); FS0237247 (discussing increasing domestic groundwater pumping as an exacerbating factor when analyzing potential impacts to perennial streams and riparian areas); FS0237268-70 (discussion of basin pumping as an exacerbating factor connected to perennial stream flows, and the overall qualitative effect of basin pumping on predictions of streamflow impact); FWS046553 (2013 BiOp discussing incremental effect of basin pumping on the Gila chub); FWS049421 (2016 BiOp discussion of cumulative effects of basin pumping and the Gila chub).
The record reflects that the FWS and Forest Service considered issues relating to private wells in the pertinent basin, and its potential impact on habitat and species; Plaintiff's arguments as to this issue are denied. Summary judgment is granted in favor of Defendants as to this issue and denied as to Plaintiff.
As to the toxic heavy metals issue, Plaintiff primarily relies on comments made by consulting agencies (including the Arizona Game and Fish Department ("AGFD"), the EPA, and BLM) whereby concerns are raised about: contaminants escaping the Rosemont Mine site, that the Rosemont Mine pit would not adequately contain contaminants, that there would be seepage from the tailings and waste rock piles, and that contaminants from the Rosemont Mine site (such as silver, cadmium, arsenic, lead, mercury and selenium) could enter the groundwater and surrounding surface water, and exceed water quality standards.
The record reflects that the FWS and Forest Service considered these issues throughout the consultation process.
The FWS found that: "Discharges to groundwater are not expected to exceed water quality standards; if they occur, the cone of depression associated with the mine pit is predicted to capture water contaminants and prevent their movement
The analysis of the ADEQ, who issued the Clean Water Act ("CWA") certification for the Rosemont Mine, supports the FWS' determination.
As to seepage, the ADEQ found that: "[S]eepage is not expected to occur from the waste rock facility or tailings ... In the event that seepage would daylight [i.e., escape] in downstream surface waters, it is unlikely that it would exceed surface water quality standards ... The placement of waste rock will be contained by perimeter buttresses, including the perimeter of the dry-stack tailings storage areas to provide structural and erosional stability of the tailings pile.... Tailings will be stored using a dry stack technique minimizing airborne releases and water seepage. Building the buttresses and encapsulating the dry stack tailings in waste rock is expected to be beneficial [for] the prevention of infiltration of precipitation through the tailings and provision of large volumes of acid neutralizing waste rock." FWS049285-86.
In addition, to address any potential seepage from waste rock, the ADEQ emphasized that "the Forest Service has included mitigation measure[s] ... which requires placement of lysimeters or other collection equipment within the waste rock facility in order to monitor the presence of seepage and allow for analysis of any leachate prior to reaching the aquifer or surface waters." FWS049286.
As to surface water discharges related to stormwater, the ADEQ discussed how stormwater management would minimize such issues: "[T]he open pit and plant site are closed systems with direct rainfall contained on site in the lined process water/temporary storage pond or the lined settling basin. Other stormwater design features include two diversion channels. The pit diversion channel will divert unimpacted stormwater around the west and south side sides of the open pit ... Water in the channel will be directed to the perimeter containment area located along the west side of the waste rock storage area." FWS049286.
To further control runoff from the Rosemont Mine, ADEQ noted that "Rosemont will employ sediment control structures to temporarily capture stormwater for the purpose of slowing velocities, reducing total suspended sediments, and serve as a location for sample collection for monitoring purposes, prior to releasing flows downstream. Downstream of the waste rock facility at the toe of the slope, separate sediment control structures will be placed on both the Barrel Canyon drainage and the Trail Creek drainage." Id.
Furthermore, the ADEQ discussed how Synthetic Precipitation Leaching Procedure ("SPLP") testing was done on a variety of core samples representing the major anticipated waste rock types from the Rosemont Mine; the SPLP testing is used
Likewise, the Forest Service considered measures employed at the Rosemont Mine to reduce or eliminate contaminants being released into water sources. See FWS110520 ("[P]ermitted facilities must use the best available demonstrated control technology to minimize or eliminate discharges ... Prescriptive control technologies are generally considered to be the more conservative and protective approach... Rosemont chose to adopt prescriptive best available control technologies in their permit application ... Permitted facilities include the dry-stack tailings facility (unlined), the process water temporary storage pond (lined), the primary settling basin (lined), the raffinate pond (lined), the heap leach pad (lined), the pregnant leach solution pond (lined), the stormwater pond (lined), the waste rock facility (unlined), and the nonmunicipal solid waste landfill (lined)."). As to waste rock, and other geologic features at the Rosemont Mine, the Forest Service determined that: "As a whole, the body of waste rock is expected to have little potential for acid rock drainage, as there are significant quantities of acid-neutralizing rock and relatively little potentially acid-generating waste rock. However, proper placement of these two types of waste rock is necessary to take advantage of the acid neutralization potential. A waste rock segregation plan has been incorporated into the design of the facility and would be informed by continued monitoring and testing of waste rock for acid-generating potential as it is developed from the mine and placed into the waste rock facility. Proper implementation of the waste rock segregation plan would be effective at reducing the potential for impacts to surface water quality." Id.; see also FWS110423 ("[There will be] a cone of depression in the groundwater table around the mine pit as a result of active pumping of the mine pit during active mining and as a result of evaporation from the mine pit in perpetuity after mine closure. The cone of depression that occurs encompasses the area beneath the heap leach facility ... While the liner and collection systems are designed to and are fully expected to capture all seepage ... any seepage that inadvertently infiltrated to groundwater would move toward and be contained in the pit lake ... [Even if there was seepage, it] is not expected to exceed any numeric Arizona Aquifer Water Quality Standard, [and] there would be no water quality impacts from seepage flow away from the mine site ...").
The Forest Service recognized that concerns had been raised by cooperating agencies about tailings seepage entering the aquifer and entering Barrel Canyon downstream of the mine; this issue was analyzed in the "Groundwater Quality and Geochemistry" resource section of the FEIS, and it was determined that "the probability of tailings `daylighting' in Barrel Canyon is low." FWS110510; see also FWS110416-17 ("Cooperating agencies
The Forest Service also considered design features at the Rosemont Mine that would minimize water infiltration and the spread of contaminants into surrounding waters. See FWS110053 ("The general design concept for managing stormwater from the dry-stack tailings facility is to minimize infiltration of water in the tailings and prevent discharge of stormwater that comes in contact with the tailings. This would be accomplished by constructing uniform lifts of dry tailings that are buttressed by waste rock. The buttresses would be built around the tailings surface for containment and erosion control. The top of the tailings facility would be relatively impervious. That is, all precipitation would remain on top of the tailings facility to evaporate. If water ponds on top of the tailings facility, it would be pumped to the process water temporary storage pond to limit infiltration into the tailings facility. Diversion channels would be constructed during the premining phase to direct surface runoff that has not contacted tailings from the outer waste rock shell slopes into either sediment ponds or to adjacent drainages and then to a sediment control structure ... Stormwater from above the mine pit would be diverted around the pit and plant site. During the active mining phase, stormwater that falls within the mine pit and associated disturbed areas, especially stormwater that comes into contact with ore, would be contained onsite and used for mining and processing purposes. Postclosure, any stormwater that enters the pit would be retained and would contribute to the pit lake."); FWS110043 ("[T]he tailings would be encapsulated, or covered completely, by a thick layer of waste rock.").
Moreover, the Forest Service required continual monitoring for seepage of contaminants, and corrective action would be required to address any issues. See FWS110416 ("While the [Forest Service] has undertaken analysis that concludes it is unlikely that seepage would occur from the waste rock facility due to infiltration of precipitation, in consideration of the public concerns raised about this potential, a monitoring component has been incorporated into the mitigation and monitoring plan ... Lysimeters or other collection equipment would be placed within the waste rock facility in order to monitor for the presence of seepage and allow for analysis of any leachate."); FWS111735-36 ("The waste rock facility is not predicted to allow infiltration of precipitation and subsequent seepage. Monitoring equipment... would be encapsulated within the waste rock and allow for collection analysis of seepage if any is generated ... [M]oisture content [would be monitored] on a quarterly basis to ensure lack of seepage... [There will be] groundwater quality sampling ... [to determine] in situ changes in the quality of Coronado National Forest groundwater resources ..."); FWS049284 ("The Forest Service is requiring monitoring of surface water and groundwater to determine impacts and installation
The record is replete with discussions of ground and surface water controls, geochemistry and groundwater quality testing and monitoring, estimated water quality related to tailings and waste rock seepage, monitoring to assess acid rock drainage, and conclusions that mitigation would be effective, and that surface water quality standards would be satisfied. See, e.g., FWS110052, FWS110091, FWS110399-401, FWS110401, FWS110405, FWS110411-13, FWS110414-18, FWS0110423, FWS110433-34, FWS110481, FWS110483, FWS110505-10, FWS110516, FWS110520.
The record reflects that the FWS and Forest Service considered issues relating to contaminants impacting ground and surface water, and its potential impact on habitat and species; Plaintiff's arguments as to this issue are denied. Summary judgment is granted in favor of Defendants as to this issue and denied as to Plaintiff.
Plaintiff argues that the FWS impermissibly defined destruction or adverse modification as one term, and thereby unlawfully read "destruction" out of the definition of "destruction or adverse modification" in violation of Gifford Pinchot Task Force v. FWS, 378 F.3d 1059 (9th Cir. 2004). The Court disagrees.
Prior regulations under the FWS defined "destruction or adverse modification" as a "direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical." Gifford Pinchot Task Force, 378 F.3d at 1069 (quoting 50 C.F.R. § 402.02 (2004)). The Ninth Circuit held that this definition effectively read recovery out of the ESA's conservation goals; however, it did not comment on the fact that there was a single definition for "destruction or adverse modification." See id. at 1069-70. In 2016, the FWS adopted new regulations that superseded the prior regulation: "Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species. Such alterations may include, but are not limited to, those that alter the physical or biological features essential to the conservation of a species or that preclude or significantly delay development of such features." 50 C.F.R. § 402.02 (2016).
The FWS used the 2016 definition of destruction or adverse modification in the amended BiOp, stating: "Specifically, we finalized the following regulatory definition: `Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species. Such alterations may include, but are not limited to, those that alter the physical or biological features essential to the conservation of a species or that preclude or significantly delay development of such features.'" FWS054335 (quoting 50 C.F.R. § 402.02 (2016)). Plaintiff argues
This challenge must be interpreted under the familiar Chevron framework. Gifford Pinchot Task Force, 378 F.3d at 1069 n. 6. The Ninth Circuit and Congress have used "adverse modification" as shorthand for "destruction or adverse modification." See 16 U.S.C. § 1536(b)(3)(A) (providing alternatives for jeopardy or adverse modification without mention of destruction); Butte Envtl. Council, 620 F.3d at 947-48 (finding that destruction of an area of critical habitat does not necessarily rise to the regulatory definition of "adverse modification."); Gifford Pinchot Task Force, 378 F.3d at 1069; Doc. 107 at 10 (citing § 1536(b)(3)(A)) (using "adverse modification" as shorthand for "destruction or adverse modification"). The FWS' definition of "destruction or adverse modification" comports with the intent of the ESA and the relevant language of the statute; a continuum guards against gaps in coverage under the ESA and ensures that destruction still receives consideration for reasonable and prudent alternatives under subsection 1536(b)(3)(A). Summary judgment is granted in favor of Defendants as to this issue
In 2014, the FWS issued a final rule designating critical habitat for the jaguar in Arizona and New Mexico. The jaguar critical habitat designation of Unit 3 and Subunit 4b falls within the action area of the Rosemont Mine and adds a layer of environmental protection that may impact operations of the mine. Rosemont brought crossclaims challenging the designation of the critical habitat potentially affected by the Rosemont Mine, Unit 3 and Subunit 4b.
As a threshold matter as to Unit 3, which was designated as occupied, Rosemont argues that the FWS unreasonably designated the northern Santa Rita Mountains in Unit 3 as occupied. The Court agrees. The United States District Court for the District of New Mexico recently considered this very question in relation to other units in the jaguar critical habitat and held that the FWS' occupation designation in the contested units was unreasonable. N.M. Farm & Livestock Bureau v. U.S. Dep't of Interior, No. 2:15-cv-00428-KG-CG, 2017 WL 4857444, at *3 (D.N.M. Oct. 25), appeal filed, No. 17-2211 (10th Cir. Dec. 12, 2017). The Court finds this persuasive.
As required by the ESA, the FWS focused on whether an area was occupied at the time of listing.
The Court finds that the FWS unreasonably relied on evidence that is counter to Congress' intention that the agency consider occupancy at the time of listing, not at the time of designation or some undefined period. The FWS acknowledged the "uncertainty" of the occupied designation for Unit 3. 79 Fed. Reg. 12582. Because critical habitat may be designated for occupied and unoccupied areas, the FWS considered if Unit 3 satisfied the unoccupied critical habitat requirements. 79 Fed. Reg. 12582. The designation of occupied or unoccupied affects what procedure the FWS must use to designate the area as critical habitat. Salazar, 606 F.3d at 1163 ("imposing a more onerous procedure on the designation of unoccupied areas"). The Court will, therefore, consider if Unit 3 and Subunit 4b
Rosemont argues that the FWS impermissibly lowered the "essential" standard for unoccupied critical habitat to designate land that is not "indispensable" to the long-term survival and recovery of the entire jaguar species.
The record shows that the FWS applied the appropriate "essential" standard
The record supports FWS' determination that Unit 3 and Subunit 4b are essential to the recovery of the jaguar species. The FWS properly relied on the Jaguar Recovery Team's Recovery Outline and Northwestern Recovery Unit ("NRU").
The secondary habitat in the United States is at the northern extreme of the jaguar range and is ecologically distinct. F000374 (describing the habitat in the United States as "the northernmost extent of the jaguar's current range, with populations persisting in one of only four distinct xeric (extremely dry) habitats that occur within the species' range."); F000373 (describing the arid habitat in the borderlands area as "quite different from habitat in Central and South America."). These relatively small areas, in proportion to the entire range, are essential to the survival of a species. Ecologically distinct habitat is essential to the jaguar's recovery. R002484 (prioritizing protecting jaguars in "all the significantly ecological settings in which they occur"). It is essential that species are protected in all their ecological settings because this provides protection from climate change and more adaptability. F000374.
Periphery populations and habitats have benefits for conservation of the entire species and, accordingly, are important to the recovery of species. F000374 (citing to the TECHNICAL SUBGROUP OF THE JAGUAR RECOVERY TEAM, RECOVERY OUTLINE FOR THE JAGUAR 19-20, R003491-92 (2012) and TERRY B. JOHNSON, WILLIAM E. VAN PELT, AND JAMES N. STUART, JAGUAR CONSERVATION ASSESSMENT FOR ARIZONA, NEW MEXICO AND NORTHERN MEXICO 30-31 (2011); Rob Channell and Mark V. Lomolino, Dynamic Biogeography and Conservation of Endangered Species, 403 NATURE 84, 84-85 (2000)); R002248 (discussing units of priority and effectiveness of effort, and listing the extreme northern parts of the jaguar range). These periphery areas provide dispersal area, buffer for reproduction zones, and area for cyclical expansion of the core areas. F000374; R003493 ("secondary areas may contribute to jaguar persistence by providing habitat to support jaguars during dispersal movements, by providing small patches of habitat (perhaps in some cases with a few resident jaguars), and as areas for cyclic expansion and contraction of the core areas."). Additionally, populations at the edge of a species' range often hold the key to genetic diversity and persistence of the species. F000374; R001507-08.
Connecting land is essential for genetic diversity, especially in fragmented areas. see Fisher v. Salazar, 656 F.Supp.2d 1357, 1367 (N. D. Fla. 2009). This land is used to connect different breeding populations in Mexico. R003485. The critical habitat is a mountainous area of Arizona with ranges separated by valley bottoms. F000383. Connection corridors are essential, but often under-protected. Id.; R002246 (discussing the importance of corridors and connectivity and the insufficiency in which they have been addressed).
In light of the foregoing, Unit 3 and Subunit 4b are essential to the jaguar species' conservation;
As discussed above, the Court has identified several issues that require remand; the Court partially grants Plaintiff's cross-motions for summary judgment, vacates
Defendants' cross-motions for summary judgment as to the Complaint are granted, in part, and denied, in part, in accordance with this Order. The Court denies Rosemont's cross-motions for summary judgment on its crossclaims, and Plaintiff's and the FWS' cross-motions for summary judgment on Rosemont's crossclaims are granted.
