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

Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., WL 4497680 (D.Nev. 2012) (holding that action brought by the Center for Biological Diversity challenging the Fish and Wildlife Service’s involvement in a Memorandum of Agreement failed because: (i) the Center for Biological Diversity lacked standing to assert claim under the Property Clause and the Endangered Species Act; (ii) Fish and Wildlife Service was not required to perform an environmental statement or environmental assessment because the Memorandum of Agreement did not constitute a major federal action; (iii) the National Wildlife Refuge System Improvement Act did not apply to Fish and Wildlife Service’s decision to sign the Memorandum of Agreement because the groundwater pumping project occurred outside the National Wildlife Refuge’s boundaries).

In March 2002, the State Engineer of Nevada issued Order No. 1169 (“Order”).  The order accepted applications for new groundwater rights in various groundwater basins, as well as ordered a study of the effect of pumpage on pre-existing water rights.  The study was ordered to last a minimum of five years, during which at least fifty percent of the currently approved water rights in the Coyote Springs Valley groundwater basin were going to be pumped for at least two successive years.

The Fish and Wildlife Service (“FWS”), Southern Nevada Water Authority (“SNWA”), Coyote Springs Investment LLC (“CSI”), Moapa Valley Water District (“MVWD”), and the Moapa Band of Paiute Indians (“Tribe”) entered into the Memorandum of Agreement (“MOA”) in April of 2006.  The MOA guaranteed that proper conservation measures were established prior to any potential effects resulting from the required groundwater pumping pursuant to the State Engineer of Nevada’s 2002 Order.  These conservation measures included: the creation of a recovery implementation program, habitat restoration and recovery procedures, protection of in-stream flows, and the formation of a hydrologic review team to guarantee precise monitoring and data collection.

In anticipation of entering into the MOA with the SNWA, CSI, MVWD, and the Tribe, the FWS issued the Programmatic Biological Opinion (“BiOp”).  The BiOp evaluated the execution of the MOA.  Ultimately, the FWS concluded that the proposed signing of the MOA, in and of itself, would not result in the pumping of any groundwater.  Therefore, the FWS’s becoming a signatory to the MOA was not likely to jeopardize the existence of the Moapa dace (a federally listed endangered species that the FWS had previously assigned the highest recovery priority possible).

The Center for Biological Diversity (“Center”) brought an action against FWS in August of 2010.  The Center alleged that FWS’s decision to sign the MOA violated: (1) the Property Clause of the United States Constitution, (2) the National Environmental Policy Act (“NEPA”), (3) the Endangered Species Act (“ESA”), and (4) the National Wildlife Refuge System Improvement Act.

First, the district court of Nevada found that the Center lacked standing to assert a claim under the Property Clause.  The district court agreed that the Center had not shown the requisite elements of causation and redressability and, therefore did not meet its challenge of the MOA.  Additionally, the district court reasoned that the MOA itself did not authorize any pumping, but rather was primarily concerned with establishing conservation measures to assist, not harm, the endangered Moapa dace.  Any harm to the fish was a result of the State Engineer of Nevada’s order, which authorized the groundwater pumping, not the MOA.

Second, the district court held FWS’s decision to sign the MOA without first completing an environmental assessment (“EA”) or environmental impact statement (“EIS”) did not violate NEPA.  NEPA requires an EIS for every major Federal action significantly affecting the quality of the human environment.  In order to determine whether an EIS is necessary, an agency may first prepare an EA.  An EIS is not mandatory when a proposed federal action would not change the status quo. When an agency decides that a project does not require an EIS without first conducting an EA, courts review the decision under the reasonableness standard.  Ultimately, the court found that FWS’s decision not to complete an EA or EIS, before entering into the MOA, was not an unreasonable course of action because the MOA did not constitute a major federal action.

Third, the district court found that the Center lacked standing to assert a claim against the FWS for its failure to undertake action against the State Engineer of Nevada for authorizing the groundwater pumping.  Section 7 of the ESA demands that federal agencies confer with the FWS to insure that any action carried out by such agency is unlikely to threaten the existence of any endangered or threatened species.  Ultimately, the court reasoned that the FWS’s action of entering into the MOA did not jeopardize the Moapa dace because the MOA involved conservation measures that would have a positive effect on the population of the Moapa dace, not a negative one.

Next, the district court concluded that FWS’s decision to sign the MOA did not violate the National Wildlife Refuge System Improvement Act (“Act”).  The Center argued that by agreeing in the MOA not to assert injury to its water right until flow fell to 2.7 CFS, the FWS allowed a percentage of the Refuge water right and spring complex to be used in association with the groundwater pumping pronounced in the MOA.  Ultimately, the district court found that FWS’s signing of the MOA did not violate the Act because the groundwater pumping project occurred outside the boundaries of the national wildlife refuge and, therefore the Act was inapplicable.

Ultimately, the district court granted summary judgment in favor of FWS and argued that the Center’s action failed because it challenged an agreement (the MOA), designed to aid, not harm the endangered Moapa dace.  In addition, the district court concluded that the MOA was not the authority permitting the pumping of water from the Coyote Spring Valley basin and, therefore the Center’s action lacked merit.