BEAR VALLEY MUTUAL WATER COMPANY; BIG BEAR MUNICIPAL WATER DISTRICT; CITY OF REDLANDS; CITY OF RIVERSIDE; CITY OF SAN BERNARDINO MUNICIPAL WATER DEPARTMENT; EAST VALLEY WATER DISTRICT; RIVERSIDE COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT; SAN BERNARDINO VALLEY MUNICIPAL WATER DISTRICT; SAN BERNARDINO VALLEY WATER CONSERVATION DISTRICT; WESTERN MUNICIPAL WATER DISTRICT; WEST VALLEY WATER DISTRICT; YUCAIPA VALLEY WATER DISTRICT, Plaintiffs-Appellants,
SALLY JEWELL, Secretary of the United States Department of the Interior; UNITED STATES DEPARTMENT OF THE INTERIOR; DANIEL M. ASHE, Director, United States Fish and Wildlife Service; UNITED STATES FISH AND WILDLIFE SERVICE, Defendants-Appellees, CALIFORNIA TROUT, INC.; CENTER FOR BIOLOGICAL DIVERSITY; SAN BERNARDINO AUDUBON SOCIETY; SIERRA CLUB, Intervenor-Defendants-Appellees
Argued and Submitted, Pasadena, California March 5, 2015.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Central District of California. D.C. No. 8:11-cv-01263-JVS-AN. James V. Selna, District Judge, Presiding.
The panel affirmed the district court's summary judgment in favor of federal defendants in an action brought by plaintiff municipalities and water districts challenging a 2010 Final Rule designating areas for the threatened Santa Ana sucker as critical habitat.
In 2000, the United States Fish and Wildlife Service designated the sucker as a " threatened" species pursuant to the Endangered Species Act. In 1999, a coalition of parties developed the Western Riverside County Multiple Species Habitat Conservation Plan, a regional, multi-jurisdictional plan that encompassed nearly 1.26 million acres and provided participating agencies with a 75-year permit for the incidental taking of 146 protected species, including the sucker, in exchange for implementing conservation measures; the Service formally approved the Conservation Plan in 2004. In the 2010 Final Rule, the Service designated additional critical habitat within the Conservation Plan.
The district court held that the Service satisfied its statutory obligation to cooperate with state agencies, that the critical habitat designation was not arbitrary or capricious, and that any claims under the National Environmental Policy Act were barred by this court's decision in Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), which held that the statute does not apply to critical habitat designations.
The panel held that section 2(c)(2) of the Endangered Species Act did not create an independent cause of action, and rejected appellants' argument that the Service violated the provision by failing to cooperate with State and local agencies on water resource issues.
The panel held that the critical habitat designation of land covered by the Conservation Plan was proper. Specifically, the panel affirmed the district court's holding that the Service's decision not to exclude land covered by the Conservation Plan was not subject to review. The panel also held that the Service's designation of lands included in the Conservation Plan was not arbitrary or capricious. The panel further held that the designation of habitat in areas covered by the Conservation Plan did not violate the Services's " No Surprises Rule," which provides that the Service may not require permittees to pay for additional conservation and mitigation measures absent unforeseen circumstances. The panel also held that appellants had adequate opportunity to comment on the Service's scientific citations.
The panel held that the Service's designation of critical habitat in unoccupied areas was proper.
The panel rejected appellants' claim that the Service violated the National Environmental Policy Act by failing to prepare an environmental impact statement in connection with its 2010 Final Rule because the Act does not apply to the designation of a critical habitat.
Gregory K. Wilkinson (argued), Wendy Wang, Melissa Cushman, and Kira Johnson, Best Best & Krieger LLP, Riverside, California, for Plaintiffs-Appellants City of Riverside, Riverside County Flood Control and Water Conservation District, and Western Municipal Water District.
Jean Cihigoyenetche, Brunick, McElhaney & Kennedy, San Bernardino, California, for Plaintiff-Appellant East Valley Water District.
David G. Moore, Reid & Kellyer, Riverside, California, for Plaintiff-Appellant Bear Valley Mutual Water Company.
Daniel J. McHugh, Office of the City Attorney, Redlands, California, for Plaintiff-Appellant City of Redlands.
David R.E. Aladjem and M. Max Steinheimer, Downey Brand LLP, Sacramento, California, for Plaintiff-Appellant San Bernardino Valley Municipal Water District.
David L. Wysocki, Aklufi & Wysocki, Redlands, California, for Plaintiff-Appellant Yucaipa Valley Water District. Gerald W. Eagans, Redwine & Sherrill, Riverside, California, for Plaintiff-Appellant West Valley Water District.
Gregory Priamos and Susan D. Wilson, Office of the City Attorney, Riverside, California, for Plaintiff-Appellant City of Riverside.
Wayne Lemieux, Lemieux & O'Neill, Thousand Oaks, California, for Plaintiff-Appellant Big Bear Municipal Water District.
David B. Cosgrove, Rutan & Tucker LLP, Costa Mesa, California, for Plaintiff-Appellant San Bernardino Valley Water Conservation District.
Andrew M. Hitchings, Somach Simmons & Dunn, Sacramento, California, for Plaintiff-Appellant City of San Bernardino Municipal Water Department.
Robert G. Dreher, Acting Assistant Attorney General, Andrea Gelatt, and Allen M. Brabender (argued), Attorneys, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C.; Lynn Cox, Office of the Solicitor, United States Department of the Interior, for Federal Defendants-Appellees.
John Buse (argued) and D. Adam Lazar, Center for Biological Diversity, San Francisco, California, for Intervenor-Defendants-Appellees.
M. Reed Hopper and Anthony L. Franç ois, Pacific Legal Foundation, Sacramento, California, for Amicus Curiae Pacific Legal Foundation.
Michelle Ouellette, Ward H. Simmons, and Lucas I. Quass, Best Best & Krieger LLP, Riverside, California, for Amicus Curiae Western Riverside County Regional Conservation Authority.
Daniel J. O'Hanlon, Hanspetter Walter, Rebecca R. Akroyd, and Elizabeth L. Leeper, Kronick, Moskovitz, Tiedemann & Girard, Sacramento, California; Marcia L. Scully, General Counsel, and Linus S. Masouredis, Chief Deputy General Counsel, The Metropolitan Water District of Southern California, for Amici Curiae Association of California Water Agencies and State Water Contractors, and the Metropolitan Water District of Southern California.
Frederic A. Fudacz, Robert D. Thornton, and Susan G. Meyer, Nossaman LLP, Irvine, California; John Krattli, County Counsel, and Michael L. Moore, Deputy Couty Counsel, Office of County Counsel, Los Angeles, California, for Amici Curiae Los Angeles County Flood Control District and the Main San Gabriel Basin Watermaster.
Before: Harry Pregerson, Barrington D. Parker, Jr.[*], and Jacqueline H. Nguyen, Circuit Judges.
PARKER, Senior Circuit Judge:
The Santa Ana sucker ( Catostomus santaanae ) is a small freshwater fish native to several California rivers and streams, including the Santa Ana River. In 2000, the United States Fish and Wildlife Service (" FWS" ), after being sued by conservation groups, designated the sucker as a " threatened" species pursuant to the Endangered Species Act (" ESA" ). In 2004, the FWS promulgated a Final Rule designating particular areas as critical habitat for the sucker. In a subsequent 2005 Final Rule and in a 2009 Proposed Rule, the FWS excluded certain areas covered by local conservation plans from critical habitat designation. But in a 2010 Final Rule, the FWS changed course and designated as critical habitat several thousand acres of land that had previously been excluded.
In August 2011, in response to this change, several municipalities and water districts sued the FWS, the Department of the Interior, and other federal officials, alleging, in essence, that the FWS (1) did not cooperate with the state in resolving water resource issues that arose from the critical habitat designation; (2) acted arbitrarily and capriciously in revising the critical habitat designation to include the previously excluded land; and (3) violated the National Environmental Policy Act (" NEPA" ) by failing to prepare an environmental impact statement prior to designation. Shortly thereafter, several conservation groups previously involved in the litigation to secure critical habitat designation for the sucker successfully moved to intervene.
The parties cross-moved for summary judgment. In October 2012, the United States District Court for the Central District of California (James V. Selna, J.) granted defendants summary judgment on all claims. The court held that the FWS satisfied its statutory obligation to cooperate with state agencies, that the critical habitat designation was not arbitrary or capricious, and that any claims under NEPA were barred by this Court's decision in Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), which held that the statute does not apply to critical habitat designations. This appeal followed. For the reasons set forth, we AFFIRM the district court's judgment.
I. Factual Background
A. The Santa Ana River
Appellants are municipalities and water districts that divert water from the Santa Ana River for various uses and conduct maintenance activities within its watershed. The Santa Ana River travels through southwestern San Bernardino County and Riverside County, continues through Orange County, and flows into the Pacific Ocean between Newport Beach and Huntington Beach. The Santa Ana River is prone to flooding; consequently, two dams--the Prado and the Seven Oaks Dam--work in tandem to assist ...