Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv.

441 F.Supp.3d 843

CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs,

v.UNITED STATES FISH AND WILDLIFE SERVICE, et al., Defendants.

No. CV-17-00475-TUC-JAS (L)

No. CV-17-00576-TUC-JAS (C)

No. CV-18-00189-TUC-JAS (C)

United States District Court, D. Arizona.

Signed February 10, 2020

Allison N. Melton, Pro Hac Vice, Center for Biological Diversity, Crested Butte, CO, Brendan Ridgely Cummings, Pro Hac Vice, Center for Biological Diversity, Oakland, CA, Jeffrey C. Parsons, Pro Hac Vice, Roger Flynn, Pro Hac Vice, Western Mining Action Project, Lyons, CO, Marc D. Fink, Pro Hac Vice, Center for Biological Diversity, Duluth, MN, for Plaintiffs.

Andrew Allen Smith, US Dept. of Justice, Albuquerque, NM, Lila Clarissa Jones, Nicole Marie Smith, US Dept. of Justice, Brian M. Collins, US Doj Enrd Natural Resources Section, Washington, DC, for Defendant United States Fish and Wildlife Service.

Andrew Allen Smith, US Dept. of Justice, Albuquerque, NM, Lila Clarissa Jones, Nicole Marie Smith, US Dept. of Justice, Brian M. Collins, US Doj Enrd Natural Resources Section, Washington, DC, Simi Bhat, US Dept. of Justice, San Francisco, CA, for Defendant United States Forest Service.

ORDER

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),¹ the parties' cross-motions for summary judgment as to Rosemont Copper Company ("Rosemont")'s crossclaims (Docs. 103, 114, 116), and the Federal Defendants' Motion to Stay (Doc. 252).² The Motion to Stay (Doc. 252) is denied. The Court finds that the Landis test, as applied in the Ninth Circuit, does not support a stay in this case. Accordingly, the Court will issue a ruling on the remaining matter.

SECTION ONE: FACTUAL AND PROCEDURAL BACKGROUND

The facts are well known to the parties and were discussed in the Court's previous Order (Doc. 248).³ The Court will not provide an extensive recitation of the facts; however, the Court may repeat some of the facts here to prevent unnecessary cross-referencing.

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").⁴ In consultation with the FWS, the Forest Service issued a Final Environmental Impact Statement ("FEIS") and a Record of Decision ("ROD") approving the "Barrel Alternative" for the Rosemont Mine. This was the culmination of years of study, review, and analysis.

The Rosemont Mine

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.⁵ After Rosemont has completed extraction of material from the pit over the next 20 to 25 years, the circular pit will measure approximately 3,000 feet in depth and 6,000 feet in diameter.⁶ In the course of digging through 3,000 feet of geologic material, Rosemont will penetrate the wall of the groundwater table lying beneath the Santa Rita Mountains and will need to pump groundwater out of the pit to continue their mining operations. After Rosemont ceases its mining operations in 20 to 25 years, Rosemont will turn off the pumps, and the pit will act as a hydraulic sink such that the pit will fill with groundwater. To gain access to the valuable copper, molybdenum, and silver in the ore, Rosemont will have to extract approximately 1.2 billion tons of waste rock (i.e., geologic material without economic value) and approximately 700 million tons of tailings (i.e., waste material left over after extracting the valuable fraction from the uneconomic fraction of the ore) (collectively "1.9 billion tons of waste"). The Rosemont Mine will impact approximately 3,653 acres of the Coronado National Forest. Outside of the 955-acre pit, Rosemont will dump approximately 1.9 billion tons of waste on approximately 2,447 acres⁷ of the Coronado National Forest.

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.

Findings about the Rosemont Mine

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 Forest Service largely relied on the BiOp to satisfy its Endangered Species Act ("ESA") obligations.

Jaguar Critical Habitat

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.

SECTION TWO: STANDARDS OF REVIEW; STATUTORY AND REGULATORY BACKGROUND

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)⁸ (applying the standard of review from the APA to a citizen suit under the ESA). If the agency "relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise" then the action was arbitrary and capricious. CBD v. FWS , 807 F.3d 1031, 1042-43 (9th Cir. 2015). Deference to the agency is at its highest when courts are reviewing an agency action requiring a high level of technical expertise. Id. at 1043. Courts must not substitute their own judgment for the agency's judgment and expertise. Id. Courts may not "act as a panel of scientists that instructs the [agency] how to validate its hypotheses ..., chooses among scientific studies ..., and orders the agency to explain every possible scientific uncertainty." Lands Council v. McNair , 537 F.3d 981, 988 (9th Cir. 2008). While deference is high and courts presume regularity, courts must conduct a "searching and careful" inquiry. CBD v. FWS , 807 F.3d at 1043. Courts are not to supply "a reasoned basis for the agency's action that the agency itself has not given." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Courts must "uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned." Nat'l Ass'n of Home Builders v. Defs. of Wildlife , 551 U.S. 644, 658, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007).

When agencies have disagreement within their ranks or change...