(More links below)
The Center for Biological Diversity — along with a passel of other petitioners — won a big decision in the Ninth Circuit today, as that court set aside a Biological Opinion and Record of Decision concerning the Ruby Pipeline, a conduit for natural gas that runs from Wyoming to Oregon (Center for Biological Diversity v BLM, 10-72356).
Circuit Judge Marsha Berzon helpfully summarized the case and the court’s conclusions at the outset of the opinion, in which she was joined by Circuit Judge N. Randy Smith and William E. Smith, U.S. District Judge from Rhode Island, sitting by designation. The “nut graf” has been bolded and italicized by ESWR.
BERZON, Circuit Judge:
Our case concerns a decision by the Bureau of Land Management (“BLM”) to authorize the Ruby Pipeline Project (“Project”). The Project involves the construction, operation, and maintenance of a 42-inch-diameter natural gas pipeline extending from Wyoming to Oregon, over 678 miles. The right-of-way for the pipeline encompasses approximately 2,291 acres of federal lands and crosses 209 rivers and streams that support federally endangered and threatened fish species. According to a Biological Opinion (“the Biological Opinion” or “the Opinion”) formulated by the Fish and Wildlife Service (“FWS”), the project “would adversely affect” nine of those species and five designated critical habitats. The FWS nonetheless concluded that the project “would not jeopardize these species or adversely modify their critical habitat.”
The propriety of the FWS’s “no jeopardy” conclusion, and the BLM’s reliance on that conclusion in issuing its Record of
Decision, are at the heart of this case. This opinion addresses those challenges to the Project that petitioners Center for Biological Diversity, Defenders of Wildlife et al., and Summit Lake Paiute Tribe have raised under the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq. [FN 1]
Specifically, we resolve petitioners’ claims that the Biological Opinion and its accompanying Incidental Take Statement were arbitrary and capricious because: (1) the Biological Opinion’s “no jeopardy” and “no adverse modification” determinations relied on protective measures set forth in a conservation plan not enforceable under the ESA; (2) the Biological Opinion did not take into account the potential impacts of withdrawing 337.8 million gallons of groundwater from sixty-four wells along the pipeline; (3) the Incidental Take Statement miscalculated the number of fish to be killed, by using a “dry-ditch construction method” for water crossings; and (4) the Incidental Take Statement placed no limit on the number of “eggs and fry” of threatened Lahontan cutthroat trout to be taken during construction. We agree with the first two contentions and so set aside the Biological Opinion as arbitrary and capricious. We also set aside the Record of Decision, as it relied on the invalid Biological Opinion. [FN 2]
 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. 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).
- Oral argument, 10/11/2011 (from 9th Circuit site) (from ESWR)
- BiOp (June 8, 2010) (Pipeline project page) (FERC news release on FEIS, 1/8/2010)
- FAQ from Ruby Piepline LLC
- Las Vegas Review-Journal (Keith Rogers, Oct 22)
- Las Vegas Sun (10/22)
- Central Valley Business Times (San Francisco, Oct 22)
- CBS News (10/23)
- Courthouse News Service
- Oregon Public Broadcasting (Listen)