Bear Valley Mutual Water Co. v. Kenneth Salazar , 790 F.3d 977 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BEAR VALLEY MUTUAL WATER No. 12-57297
COMPANY; BIG BEAR MUNICIPAL
WATER DISTRICT; CITY OF D.C. No.
REDLANDS; CITY OF RIVERSIDE; 8:11-cv- 01263-
CITY OF SAN BERNARDINO JVS-AN
MUNICIPAL WATER DEPARTMENT;
EAST VALLEY WATER DISTRICT;
RIVERSIDE COUNTY FLOOD OPINION
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,
v.
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,
2 BEAR VALLEY MUT. WATER CO. V. JEWELL
CALIFORNIA TROUT, INC.; CENTER
FOR BIOLOGICAL DIVERSITY; SAN
BERNARDINO AUDUBON SOCIETY;
SIERRA CLUB,
Intervenor-Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted
March 5, 2015 – Pasadena, California
Filed June 25, 2015
Before: Harry Pregerson, Barrington D. Parker, Jr.*,
and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Parker
*
The Honorable Barrington D. Parker, Jr., Senior Circuit Judge for the
U.S. Court of Appeals for the Second Circuit, sitting by designation.
BEAR VALLEY MUT. WATER CO. V. JEWELL 3
SUMMARY**
Environmental Law
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.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 BEAR VALLEY MUT. WATER CO. V. JEWELL
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.
BEAR VALLEY MUT. WATER CO. V. JEWELL 5
COUNSEL
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.
6 BEAR VALLEY MUT. WATER CO. V. JEWELL
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. François, 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 &
BEAR VALLEY MUT. WATER CO. V. JEWELL 7
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.
OPINION
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.
8 BEAR VALLEY MUT. WATER CO. V. JEWELL
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.
BEAR VALLEY MUT. WATER CO. V. JEWELL 9
BACKGROUND
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 with flood
control. The dams require ongoing maintenance work, some
of which may be done in areas designated as critical habitat.
The Santa Ana River also serves as a source of water for
its watershed communities. Water rights are allocated to
municipalities and water districts subject to two state court
decisions, Orange County Water District v. City of Chino et
al., No. 117628 (Super. Ct. Orange County, CA Apr. 17,
1969) and Western Municipal Water District of Riverside
County et al v. East San Bernardino County Water District et
al., No. 78426 (Super. Ct. Riverside County, CA Apr. 17,
1969). In 2009, the California State Water Board granted the
San Bernardino Valley Municipal Water District and the
Western Municipal Water District permits to divert additional
water captured by the Seven Oaks Dam “for beneficial uses.”
10 BEAR VALLEY MUT. WATER CO. V. JEWELL
B. Local Conservation Plans and Partnerships
In the late 1990s, two coalitions formed to develop
conservation plans for the sucker. In 1998, the first coalition,
consisting of the FWS, the United States Army Corps of
Engineers, the Santa Ana Watershed Project Authority, and
various local agencies, including several Appellants in this
case, agreed to the Santa Ana Sucker Conservation Plan
(“SASCP”). Under the SASCP, the FWS allowed permittees
to incidentally “take” (i.e., harm or kill) a limited number of
suckers, in exchange for various conservation and mitigation
measures. In 1999, a second coalition of 22 parties developed
the Western Riverside County Multiple Species Habitat
Conservation Plan (“MSHCP”), a regional, multi-
jurisdictional plan that encompasses nearly 1.26 million acres
and provides participating agencies with a 75 year permit for
the incidental taking of 146 protected species, including the
sucker, in exchange for implementing conservation measures.
Several Appellants, including the City of Riverside and
Riverside County Flood Control, are among the permittees
covered by the MSHCP.
In 2004, the MSHCP was formally approved by the FWS.
Under the terms of the Implementation Agreement
(“MSHCP-IA”), the FWS stipulated that:
[T]o the maximum extent allowable after
public review and comment, in the event that
a Critical Habitat determination is made for
any Covered Species Adequately Conserved,
and unless the [Service] finds that the
MSHCP is not being implemented, lands
within the boundaries of the MSHCP will not
be designated as Critical Habitat.
BEAR VALLEY MUT. WATER CO. V. JEWELL 11
Although the MSHCP continues to be implemented, the
FWS, in the 2010 Final Rule, designated additional critical
habitat within the MSHCP. A crucial issue on this appeal is
whether, and to what extent, this stipulation binds the FWS’s
designation decisions.
C. History of Listing and Critical Habitat Designation
1. 1994-2003
Efforts to list the sucker as an endangered species date
back to September 1994, when two conservation groups
petitioned the FWS to consider the listing. When the FWS
did not respond to the petition within the 90 days mandated
by statute, the groups sued to compel a determination. In
May 1996, the United States District Court for the Northern
District of California found that the FWS violated the ESA
and ordered the Service to make a preliminary determination
as to the sucker’s status. See Cal. Trout v. Babbitt, No. 95-
cv-3961, Dkt. No. 30 (N.D. Cal. Nov. 7, 1995).
In July 1996, the FWS published a preliminary
determination that a listing of the sucker could be warranted,
but took no further action. 61 Fed. Reg. 36,021 (July 9,
1996). The district court then ordered the FWS to publish a
proposed rule regarding listing, as required by the ESA. In
March 1997, the FWS determined that while listing the
sucker as endangered or threatened was warranted, other
listing actions commanded higher priority. 62 Fed. Reg.
15,872 (Apr. 3, 1997). The conservation groups then filed a
new lawsuit in response to which the district court set a
schedule for the FWS to publish a proposed and final listing
determination.
12 BEAR VALLEY MUT. WATER CO. V. JEWELL
In April 2000, the FWS released a Final Listing Rule,
listing the sucker as a “threatened” species. The FWS noted
that the sucker had been eliminated from approximately 75%
of its former native range, due to “habitat destruction, natural
and human-induced changes in streamflows, urban
development and related land-use practices, and the
introduction of nonnative competitors and predators.”
65 Fed. Reg. 19,686, 19,691 (Apr. 12, 2000). The FWS did
not, however, designate critical habitat for the sucker in the
2000 Final Listing Rule on the ground that its “knowledge
and understanding of the biological needs and environmental
limitations of the Santa Ana sucker and the primary
constituent elements of its habitat are insufficient to
determine critical habitat for the fish.” Id. at 19,696. In such
circumstances, the ESA requires the FWS to conduct
additional research and issue a final determination of critical
habitat no later than two years after the proposed listing rule.
16 U.S.C. § 1533(b)(6)(C)(ii)(II).
The district court supervising the California Trout
litigation retained jurisdiction to monitor the FWS’s
compliance with the statutory deadline. After the FWS failed
to comply, the conservation groups amended their complaint
and moved for summary judgment. The district court found
the FWS in violation of the ESA and ordered a final critical
habitat designation by February 2004. Cal. Trout v. Norton,
No. 97-cv-3779, 2003 WL 23413688, at *5 (N.D. Cal. Feb.
26, 2003).
2. 2004 Final and Proposed Rules
In February 2004, the FWS concurrently issued identical
proposed and final critical habitat designations. The 2004
Final Rule designated 21,129 acres of critical habitat in three
BEAR VALLEY MUT. WATER CO. V. JEWELL 13
areas: the Santa Ana River (indicated as Unit 1, further
divided into subunits 1A and 1B), the San Gabriel River (Unit
2), and the Big Tujunga Creek (Unit 3). The 2004 Final Rule
found that the “primary constituent elements” (“PCEs”) for
the sucker are “a functioning hydrological system that
experiences peaks and ebbs in the water volume and
maintains a sand, gravel, and cobble substrate in a mosaic of
sandy stream margins, deep water pools, riffles [and] runs;
sufficient water volume and quality; and complex, native
floral and faunal associations.” 69 Fed. Reg. 8,839, 8,843
(Feb. 26, 2004). Although the FWS found that Units 1A and
1B “are not known to be occupied, they are essential for the
conservation of the Santa Ana sucker because they provide
and transport sediment necessary to maintain the preferred
substrates utilized by this fish . . . , convey stream flows and
flood waters necessary to maintain habitat conditions for the
Santa Ana sucker; and support riparian habitats that protect
water quality in the downstream portions of the Santa Ana
River occupied by the sucker.” Id. at 8,844–45 (citations
omitted).
Notwithstanding these findings, the FWS exercised its
authority under Section 4(b)(2) of the ESA to exclude
“essential habitat” that included areas encompassed by the
MSHCP and the SASCP. The FWS concluded that “the
benefits of excluding essential habitat within the boundaries
of” these agreements, such as fostering continuing
cooperative spirit with local agencies, educational value, and
likely changes in conservation, “outweigh the benefits of
including these areas as critical habitat,” and that this
exclusion “will not result in the extinction of the sucker.” Id.
at 8,846–48.
14 BEAR VALLEY MUT. WATER CO. V. JEWELL
3. 2005 Final Rule and Subsequent Litigation
Because the 2004 Final Rule had been promulgated
without an opportunity for public review and comment in
order to comply with the district court’s order, the FWS
accepted review and comment on the simultaneously released
2004 Proposed Rule, which was ultimately promulgated as a
new 2005 Final Rule. The 2005 Final Rule revised the PCEs
for the sucker and reduced the designated critical habitat to
8,305 acres. Specifically, all portions of the habitat in the
Santa Ana River and its tributaries (Unit 1) were removed
from designation because they were no longer considered
“essential.” However, this change rendered the 2005 Final
Rule internally inconsistent, because the rationale for
designating certain unoccupied portions of other river
systems as essential was the same as the rationale used to
reject designation for the units along the Santa Ana River.
For example, while unoccupied areas in Unit 3 (the Big
Tujunga Creek) were designated as essential because they
transported sediment downstream to occupied areas,
unoccupied areas in Unit 1A were now deemed “not
essential,” even though they also transported sediment to
downstream occupied areas. Additionally, while certain
sections of the 2005 Final Rule state that Units 1A and 1B are
not essential, the FWS did not remove other language in the
Final Rule that refers to habitat within these units as essential.
See, e.g., 70 Fed. Reg. 426, 443 (Jan. 4, 2005) (“[W]e
analyzed the impacts of the MSHCP . . . on the Santa Ana
sucker and its essential habitat within the plan boundaries.”).
Various conservation groups pressed the FWS on these
inconsistencies, raising questions about the integrity of the
scientific information used and whether the decision was
consistent with appropriate legal standards. In response, the
BEAR VALLEY MUT. WATER CO. V. JEWELL 15
FWS announced in July 2007 that it would review the 2005
Final Rule. In November 2007, the conservation groups
again sued the FWS, alleging that the 2005 Final Rule
violated the ESA and the Administrative Procedure Act
(“APA”), and that the rule making resulted from improper
political influence not grounded in reliable science. The
parties settled in 2009. The settlement agreement approved
by the district court required the FWS to “reconsider its
critical habitat designation for the Santa Ana sucker,” and to
submit a proposed rule by December 2009, with a final rule
due by December 2010. Cal. Trout v. U.S. Fish and Wildlife
Serv., No. 08-cv-4811, Dkt. No. 41 (C.D. Cal. Jan. 21, 2009).
4. 2009 Proposed Rules and 2010 Final Rules
The FWS released a new proposed rule in December
2009, with a slight revision in July 2010, designating 9,605
acres of habitat from the three river systems, including 1,900
acres of unoccupied habitat from the Santa Ana River that
was previously found not essential in the 2005 Rule
(identified as new subunit 1A). 74 Fed. Reg. 65,056(proposed Dec. 9, 2009), revised by 75 Fed. Reg. 38,441(proposed July 2, 2010). The FWS noted that it was
considering exercising its discretion to exclude 5,472 acres of
designated habitat, consisting of areas within the SASCP and
MSHCP (identified as new subunits 1B and 1C).
In connection with the Proposed Rule, the FWS held two
open 60-day comment periods, hosted two public hearings in
July 2010, and contacted “appropriate Federal, State, and
local agencies; scientific organizations; and other interested
parties and invited them to comment on the proposed rule and
D[raft] E[conomic] A[nalysis] during these comment
periods.” 75 Fed. Reg. 77,961, 77,989 (Dec. 14, 2010). The
16 BEAR VALLEY MUT. WATER CO. V. JEWELL
FWS also subjected its rule to peer review, responded to
several Congressional inquiries, and met with various
stakeholders, including Appellants’ representatives. See id.
at 77,989–94. Various agencies participating in the SASCP
and MSHCP, including Appellants, commented extensively
on the 2009 Proposed Rule, supporting an exclusion and
asking the FWS to adhere to its commitment in the MSHCP-
IA to exclude MSHCP land.
In December 2010, the FWS issued its Final Rule. The
2010 Final Rule designated 9,331 acres of critical habitat
across the three river systems. The 2010 Final Rule
designated habitat closely along the lines of the 2009
Proposed Rules, except that it removed approximately 400
acres from subunit 1A. The 2010 Final Rule designated
approximately 1,500 acres of unoccupied habitat in subunit
1A on the ground that these areas are “essential to the
conservation of the species” because they function as
pathways to transport storm and stream waters and sediments
“necessary to maintain” preferred substrates to occupied
portions of the Santa Ana River further downstream. 75 Fed.
Reg. at 77,972, 77,978. The FWS also decided not to exclude
the areas in subunits 1B and 1C, which included 3,048 acres
of land covered by the MSHCP. The FWS found that the
benefits of continued exclusion did not outweigh the benefits
of inclusion, and declined to exercise its discretion to exclude
those areas because of the sucker’s conservation status.
II. Procedural History
In August 2011, the plaintiff municipalities and water
districts sued the FWS, challenging the 2010 Final Rule on
multiple grounds, and requested declaratory and injunctive
relief. As relevant to this appeal, the plaintiffs alleged that the
BEAR VALLEY MUT. WATER CO. V. JEWELL 17
FWS (1) failed to cooperate with them to resolve water
resource concerns pursuant to Section 2(c)(2) of the ESA
(claim 1); (2) designated lands along the Santa Ana River or
within the MSHCP in a manner that was arbitrary and
capricious, in violation of the ESA and the APA (claims 2
and 4); and (3) violated NEPA by failing to prepare an
Environmental Impact Statement (claim 6).1
In November 2011, California Trout, Inc., the Center for
Biological Diversity, the San Bernardino Audubon Society,
and the Sierra Club successfully moved to intervene as
defendants. The parties cross-moved for summary judgment
and in October 2012, the district court granted defendants
summary judgment on all claims. Bear Valley Mut. Water
Co. v. Salazar, No. 11-cv-1263, 2012 WL 5353353 (C.D. Cal.
Oct. 17, 2012). In sum, the district court concluded that
(1) the FWS complied with its statutory obligations to
cooperate with state and local authorities and Section 2(c)(2)
of the ESA does not impose additional substantive or
procedural obligations on federal agencies, see id. at *9–11;
(2) an agency’s decision not to exclude areas from critical
habitat is a discretionary action not subject to judicial review,
see id. at *14, and the FWS’s critical habitat designation was
not arbitrary or capricious because it was rationally connected
to the best available science, see id. at *15, 19–34; and
(3) any claim under NEPA is barred by Douglas County, see
id. at *37.
1
Because Appellants did not address several other claims raised before
the district court in their opening brief, we consider those claims to be
abandoned. See Christian Legal Soc. Ch. v. Wu, 626 F.3d 483, 485 (9th
Cir. 2010).
18 BEAR VALLEY MUT. WATER CO. V. JEWELL
The municipalities and water districts appealed and the
Pacific Legal Foundation successfully moved to appear as
amicus curiae in support of Appellants.2 We have jurisdiction
pursuant to 28 U.S.C. § 1291.
STANDARDS OF REVIEW
We review a district court’s grant of summary judgment
de novo. Guatay Christian Fellowship v. Cnty. of San Diego,
670 F.3d 957, 970 (9th Cir. 2011). “We must determine,
viewing the evidence in the light most favorable to the
nonmoving party, whether there are any genuine issues of
material fact and whether the district court correctly applied
the relevant substantive law.” McFarland v. Kempthorne,
545 F.3d 1106, 1110 (9th Cir. 2008) (quotation omitted).
“This Court also reviews de novo the district court’s
evaluations of an agency’s actions.” San Luis & Delta-
Mendota Water Auth. v. Locke, 776 F.3d 971, 991 (9th Cir.
2014).
2
The Association of California Water Agencies, State Water
Contractors, Metropolitan Water District of Southern California, Main San
Gabriel Basin Watermaster, County of Los Angeles, and the Western
Riverside County Regional Conservation Authority (“RCA”) have also
moved for leave to file three separate amicus curiae briefs in support of
Appellants. The RCA further requests that this Court take judicial notice
of several documents. These motions are opposed by the Intervenors-
Appellees. All pending motions for leave to file amicus briefs are hereby
granted. RCA’s request for this Court to take judicial notice is denied
because “judicial review of an agency decision is [generally] limited to the
administrative record on which the agency based the challenged decision,”
and RCA has not shown why the additional materials are “necessary to
adequately review” the decision here. See Fence Creek Cattle Co. v. U.S.
Forest Serv., 602 F.3d 1125, 1131 (9th Cir. 2010).
BEAR VALLEY MUT. WATER CO. V. JEWELL 19
Claims brought against an agency under the ESA are
evaluated under the APA. Pursuant to the APA, an agency
decision will be set aside only if it is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A). “Under this standard, we will ‘sustain
an agency action if the agency has articulated a rational
connection between the facts found and the conclusions
made.’” San Luis & Delta-Mendota, 776 F.3d at 994 (quoting
Pac. Coast Fed’n of Fishermen’s Ass’ns v. U.S. Bureau of
Reclamation, 426 F.3d 1082, 1090 (9th Cir. 2005)). A federal
court may not substitute its judgment for that of the agency.
See, e.g., U.S. Postal Serv. v. Gregory, 534 U.S. 1, 7 (2001).
ANALYSIS
I. Section 2(c)(2) Does Not Create an Independent Cause
of Action
Section 2 of the ESA is entitled “Congressional findings
and declarations of purposes and policy.” 16 U.S.C. § 1531.
Section 2(c) provides:
(c) Policy
(1) It is further declared to be the policy of
Congress that all Federal departments and
agencies shall seek to conserve endangered
species and threatened species and shall
utilize their authorities in furtherance of the
purposes of this chapter.
(2) It is further declared to be the policy of
Congress that Federal agencies shall
cooperate with State and local agencies to
20 BEAR VALLEY MUT. WATER CO. V. JEWELL
resolve water resource issues in concert with
conservation of endangered species.
16 U.S.C. § 1531(c). Appellants argue that the FWS violated
Section 2(c)(2) because it failed to cooperate with State and
local agencies on water resource issues, by, for example,
failing to give sufficient weight to the California State Water
Board’s determination that the issuance of permits for the
proposed diversion from the Santa Ana River at Seven Oaks
Dam for municipal purposes would have no impact upon
public trust resources, including the sucker, and otherwise
declining to engage Appellants in negotiating the critical
habitat designation.
This argument fails as a matter of law because, as the
district court correctly held, Section 2(c)(2) is a non-operative
statement of policy that “does not create an enforceable
mandate for some additional procedural step.” Bear Valley,
2012 WL 5353353, at *11. By its own terms, Section 2(c)(2)
is a subsection of the ESA’s declaration of purposes and
policy. It is well established that such declarations do not
create substantive or enforceable rights. See Hawaii v. Office
of Hawaiian Affairs, 556 U.S. 163, 175 (2009) (“[W]here the
text of a clause itself indicates that it does not have operative
effect. . . . , a court has no license to make it do what it was
not designed to do.” (quotation marks and citation omitted)).
Although we believe the text is clear, we note that this
reading is further supported by the statute’s legislative
history. When Congress amended the ESA to include Section
2(c)(2) in 1982, the Senate Committee report expressly
provided that this provision was “not intended to and does not
change the substantive or procedural requirements of the
Act.” S. Rep. 97-418, at 25–26 (May 26, 1982). We also
BEAR VALLEY MUT. WATER CO. V. JEWELL 21
note that no court has ever construed Section 2(c)(2) to set
forth a substantive or procedural requirement.
Appellants claim that this reading renders statutory
language superfluous and violates established canons of
statutory interpretation. They note that Section 2(c)(2) uses
the word “shall,” which is typically considered to be a
mandate. Appellants contend that the Eighth Circuit’s
decision in Defenders of Wildlife v. Administrator, EPA,
882 F.2d 1294 (8th Cir. 1989) supports their position. There,
the court concluded that the ESA “imposes substantial and
continuing obligations on federal agencies,” citing Section
2(c)(1), which expresses the policy “that all Federal
departments and agencies . . . shall utilize their authorities in
furtherance of the purposes of this Act.” 882 F.2d at 1299.
According to Appellants, if Section 2(c)(1) imposes a
“substantial and continuing obligation,” then so must Section
2(c)(2). However, the substantive provisions enforced by the
Eighth Circuit were Sections 7 and 9 of the ESA, which set
forth the procedures reflecting the policy statement in Section
2(c)(1). Nothing in Defenders of Wildlife establishes or
recognizes a free-standing claim based on Section 2(c)(1).
Contrary to what Appellants contend, the policy goals
embodied in Section 2(c)(2) are implemented through the
substantive and procedural requirements set forth in Section
4, which direct the FWS to “give actual notice of the
proposed regulation (including the complete text of the
regulation) to the State agency in each State in which the
species is believed to occur, and to each county or equivalent
jurisdiction in which the species is believed to occur, and
invite the comment of such agency, and each such
jurisdiction, thereon,” 16 U.S.C. § 1533(b)(5)(A)(ii), and to
provide a “written justification” for any rule that was issued
22 BEAR VALLEY MUT. WATER CO. V. JEWELL
without “adopt[ing] regulations consistent with the [State]
agency’s comments or petition.” 16 U.S.C. § 1533(i). In
other words, the procedures set forth in Section 4 outline the
scope of “cooperation” required between the FWS and state
and local agencies in designating critical habitat. This process
is an enhanced level of notice and comment compared to that
afforded to the general public through notice in the Federal
Register and publication in a newspaper that circulates in the
area in which the species is believed to occur. It is
undisputed that the FWS complied with Section 4 of the ESA.
Appellants argue that Section 2(c)(2)’s mandate of
“cooperation” is not satisfied by Section 4’s procedures, and
that the provision creates additional obligations where “water
resource issues” are involved. As support for this contention,
Appellants cite to California Wilderness Coalition v. U.S.
Department of Energy, which held that a provision of the
Energy Policy Act that required “consultation with affected
States” in conducting a study concerning certain transmission
corridors issues mandated that the DOE “confer with the
affected States before . . . complet[ing]” the study, rather than
rely on the statute’s notice and comment procedure. 631 F.
3d 1072, 1088 (9th Cir. 2011). But as the district court noted,
both relevant provisions of the Energy Policy Act at issue in
California Wilderness are substantive and distinct because
“the opportunity to comment provision applie[s] to the
issuing of a . . . . report based on the congestion study
previously subject to consultation.” Bear Valley Mut. Water
Co., 2012 WL5353353, at *10. But here, Section 2(c)(2)
merely announces a general policy goal that is reflected in the
substantive and procedural requirements of Section 4.
Finally, Appellants’ citation to legislative history is
unavailing. Although Appellants cite some portion of the
BEAR VALLEY MUT. WATER CO. V. JEWELL 23
legislative history which suggests that Congress intended for
“most of the potential conflicts between species conservation
and water resource development [to] be avoided through
close cooperation,” this same text later makes explicitly clear
that Section 2(c)(2) does not “change the substantive or
procedural requirements of the Act.” Accordingly, we affirm
the district court’s grant of summary judgment in favor of
Appellees as to claim 1.
II. The Critical Habitat Designation of Land Covered by
the MSHCP Was Proper
A. Legal Framework
Section 4(b)(2) requires the FWS to designate critical
habitat “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.” 16 U.S.C.
§ 1533(b)(2). “The determination of what constitutes the
‘best scientific data available’ belongs to the agency’s
‘special expertise . . . .When examining this kind of scientific
determination, as opposed to simple findings of fact, a
reviewing court must generally be at its most deferential.”
San Luis & Delta-Mendota Water Authority v. Jewell,
747 F.3d 581, 602 (9th Cir. 2014) (quoting Baltimore Gas &
Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 103
(1983)).
A critical habitat designation must describe the PCEs,
which are the “physical and biological features essential to
the conservation of the species and which may require special
management considerations or protection.” 50 C.F.R.
§ 424.12(b). The FWS “may exclude any area from critical
24 BEAR VALLEY MUT. WATER CO. V. JEWELL
habitat if [it] determines that the benefits of such exclusion
outweigh the benefits of specifying such area as part of the
critical habitat, unless [it] determines, based on the best
scientific and commercial data available, that the failure to
designate such area as critical habitat will result in the
extinction of the species concerned.” 16 U.S.C. § 1533(b)(2).
B. Appellants’ Challenge to the FWS’s Decision Not
to Exercise Its Discretion to Exclude Land
Covered by the MSHCP Fails
Judicial review of agency decisions under the APA does
not apply to an “agency action [that] is committed to agency
discretion by law.” 5 U.S.C. § 701(a)(2). An action is
committed to agency discretion where there is no
“meaningful standard against which to judge the agency’s
exercise of discretion.” See Heckler v. Chaney, 470 U.S. 821,
830 (1985). Typically, where a statute is written in the
permissive, an agency’s decision not to act is considered
presumptively unreviewable because courts lack “a focus for
judicial review . . . to determine whether the agency exceeded
its statutory powers.” Id. at 832. Here, the district court
found that, to the extent Appellants argued that the FWS
violated the ESA and the APA by not exercising its discretion
to exclude land covered by the MSCHP, that agency decision
is unreviewable because “[t]he statute is written in the
permissive,” and authorizes the FWS to exclude essential area
from a critical habitat designation but does not compel it to
do so. Bear Valley Mut. Water Co., 2012 WL 5353353, at
*14. For the reasons explained below, we agree with the
district court that an agency’s decision not to exclude critical
habitat is unreviewable.
BEAR VALLEY MUT. WATER CO. V. JEWELL 25
Appellants’ principle argument is that if there is a
manageable standard to review an agency’s decision to
exclude, which all parties agree is subject to review, the same
standard can, and should be, used to review an agency’s
decision not to exclude. Their authority for this proposition
is the D.C. Circuit’s decisions in Amador County v. Salazar,
640 F.3d 373, 379–83 (D.C. Cir. 2011), and Dickson v. Sec’y
of Def., 68 F.3d 1396, 1401–02 (D.C. Cir. 1995), cases in
which the court held that a statute is not made unreviewable
by the use of permissive language alone. This argument is
unavailing.
In Amador County, the D.C. Circuit analyzed a provision
of the Indian Gaming Regulatory Act, which states that the
Secretary of Commerce “may disapprove a [Tribal-State]
compact [entered into between an Indian tribe and a State
governing gaming on Indian lands of such Indian tribe] . . .
only if such compact violates (i) any provision of this chapter,
(ii) any other provision of Federal law . . . , or (iii) the trust
obligations of the United States to Indians.” 25 U.S.C.
§ 2710(d)(8)(B). The court found that subsection (d)(8)(B)’s
“use of ‘may’ is best read to limit the circumstances in which
disapproval is allowed.” Amador Cnty., 640 F.3d at 381. In
Dickson, the D.C. Circuit analyzed a statute directing that the
Army Board for Correction of Military Records “may excuse
a failure to file [a request for a correction of military records]
within three years after discovery if it finds it to be in the
interest of justice.” 68 F.3d at 1399 (quoting 10 U.S.C.
§ 1552(b)). The court concluded that Congress did not intend
“may” to confer complete discretion because “this
construction would mean that even if the Board expressly
found in a particular case that it was in ‘the interest of justice’
to grant a waiver, it could still decline to do so.” Id. at 1402,
n.7.
26 BEAR VALLEY MUT. WATER CO. V. JEWELL
Appellants, however, misunderstand the standard under
which a decision to exclude is reviewable. Unlike Amador
County and Dickson, where the government argued that it was
not obligated to take any action, the FWS is obligated to take
an action under Section 4(b)(2), i.e., designate essential
habitat as critical. The decision to exclude otherwise
essential habitat is thus properly reviewable because it is
equivalent to a decision not to designate critical habitat.
But the statute cannot be read to say that the FWS is ever
obligated to exclude habitat that it has found to be essential.
Such a decision is always discretionary and the statute
“provides absolutely no standards that constrain the Service’s
discretion” not to exclude, unlike the statute reviewed in
Amador County, which cabined the agency’s discretion to
disapprove compacts to a set of specified conditions. See
Conservancy of Sw. Fla. v. U.S. Fish and Wildlife Serv.,
677 F.3d 1073, 1084, n. 16 (11th Cir. 2012) (distinguishing
Amador County and finding that the use of the word “may” in
another section of the ESA precludes the review of an
agency’s exercise of discretion); see also Ekimian v. INS,
303 F.3d 1153, 1159 (9th Cir. 2002) (holding that where the
Board of Immigration is permitted to reopen proceedings in
“exceptional circumstances,” its decision not to reopen a case
is unreviewable because there are no “statutory, regulatory,
or caselaw definition[s] of ‘exceptional circumstances’” and
thus no manageable standard to apply on review).3
3
We note that our holding today also comports with every lower court
that has addressed this issue to date. See Aina Nui Corp. v. Jewell, 52 F.
Supp. 3d 1110, 1132 n.4 (D. Haw. 2014) (“The Court does not review the
Service’s ultimate decision not to exclude . . . , which is committed to the
agency’s discretion.”); Cape Hatteras Access Pres. Alliance v. U.S. Dep’t.
of the Interior, 731 F. Supp. 2d 15, 29 (D.D.C. 2010) (“The plain reading
of the statute fails to provide a standard by which to judge the Service’s
BEAR VALLEY MUT. WATER CO. V. JEWELL 27
Accordingly, we affirm the district court’s holding that the
FWS’s decision not to exclude land covered by the MSHCP
is not subject to review.
C. The FWS’s Designation of Lands Included in the
MSHCP Was Not Arbitrary or Capricious
Even if an agency’s decision not to exclude is
unreviewable, courts undisputedly have the authority to
review whether the FWS properly included an area in a
critical habitat designation. This inquiry turns on whether the
designation was based on “the best scientific data available,”
and whether the FWS took into consideration the economic,
national security, or any other relevant impacts, of
“specifying any particular area as critical habitat,” 16 U.S.C.
§ 1533(b)(2).
Appellants do not argue that the FWS relied on faulty
scientific data, or that there is no rational relationship
between the facts underlying the determination that the
MSHCP lands were essential and the FWS’s designation of
critical habitat. Rather, Appellants contend that “[b]y
executing the MSHCP and its Implementation Agreement, the
FWS assured [p]ermittees that it would not designate MSHCP
land unless it first found that the plan was not being
implemented.” According to Appellants, the inclusion of this
land in the 2010 Final Rule was a “radical departure from
decision not to exclude an area from critical habitat.”); Home Builders
Ass’n of N. Cal. v. U.S. Fish & Wildlife Serv., No. 05-cv-629, 2006 WL
3190518 (E.D. Cal. Nov. 2, 2006) (“[T]he court has no substantive
standards by which to review the [agency’s] decisions not to exclude
certain tracts based on economic or other considerations, and those
decisions are therefore committed to agency discretion.”).
28 BEAR VALLEY MUT. WATER CO. V. JEWELL
prior precedent and in contravention of assurances provided
in the IA,” and the FWS’s failure to consider the
consequences of violating those assurances makes the 2010
Final Rule arbitrary and capricious. We disagree.
The MSHCP-IA states that the FWS will not designate
land within the agreement “to the maximum extent allowable
after public review and comment.” While Appellants read
this provision to require that the FWS exercises its discretion
under Section 4(b)(2) to exclude MSHCP land unless
absolutely barred from doing so under the law, the Federal
Appellees respond that the MSHCP-IA does not constitute a
“contractual assurance[] that the agency would not designate
as critical habitat lands covered by the MSHCP” because
“[t]he FWS did not, nor could it, promise to ignore its ESA
obligations.” Further, the Federal Appellees argue that it
would be inappropriate and unlawful for an agency to
“commit to the substantive outcome of a future rulemaking in
an agreement with a specific group like the MSHCP
signatories.”
To the extent Appellants believe the MSHCP-IA creates
an enforceable guarantee not to designate critical habitat, they
are mistaken. Although Appellants raise valid concerns about
the permittees’ reliance on the FWS’s promise not to
designate lands “to the maximum extent allowable,” the FWS
may not relinquish its statutory obligation to designate
essential critical habitat by contract with third parties.
Nevertheless, Appellants correctly argue that the MSHCP is
a “relevant impact” that should have been considered in the
process of rulemaking. Contrary to Appellants’ assertions,
the FWS fully considered the MSHCP as a “relevant impact,”
and its conclusion that designation of critical habitat was
nevertheless warranted is, consequently, permissible.
BEAR VALLEY MUT. WATER CO. V. JEWELL 29
At the time the 2010 Final Rule was promulgated, the
FWS’s duty to consider “any other relevant impact” under
Section 4(b)(2) required that the Service “identify any
significant activities that would either affect an area
considered for designation as critical habitat or be likely to be
affected by the designation,” and “consider the probable
economic and other impacts of the designation upon proposed
or ongoing activities.” 50 C.F.R. § 424.19 (2010), revised by
78 Fed. Reg. 53,058 (Aug. 28, 2013).
The FWS fully considered the impact of including the
areas covered by the MSHCP (as well as the SASCP) in the
2010 Final Rule, including the potentially deleterious impact
on future local cooperation efforts. See 75 Fed. Reg. at
77,985–87 (“Rationale for Including the Western Riverside
County MSHCP and SAS Conservation Program in This
Final Critical Habitat Designation”). Nevertheless, the FWS
found that the designation of critical habitat was warranted.
Specifically, the FWS noted that “the status of the Santa Ana
sucker and the status of its habitat continue to decline
throughout the Santa Ana River system,” and that because
mitigation under the MSHCP is to be implemented over a 75
year period, the continued decline warranted inclusion of
essential habitat within the MSHCP area.4 Id. at 77,985. The
FWS also noted that designation will provide a significant
4
Appellants argue that this conclusion is not supported by the factual
record because a large percentage of sucker habitat had already been
conserved under the terms of the MSHCP. However, as the RCA admits,
“the acquisition of additional conservation land was intended to be a
multi-step, gradual process where land is acquired in rough proportionality
to development” over the first 25 years of the plan. Thus, the FWS’s
conclusion that the MSHCP would likely benefit the sucker in the long
term, but would not necessarily resolve short-term conservation problems,
is not arbitrary and capricious.
30 BEAR VALLEY MUT. WATER CO. V. JEWELL
public educational benefit, and may strengthen other laws in
a manner beneficial to the sucker. Id. at 77,986.
Appellants contend that the FWS’s decision was arbitrary
and capricious because the 2010 Final Rule (1) failed to cite
or address the specific assurance not to designate critical
habitat in the MSHCP-IA, or (2) to explain the decision to
reverse the exclusion in the 2004 and 2005 Final Rules. But
as Appellants admit, the FWS specifically determined that
“‘the partnership benefits of exclu[sion] . . . do not outweigh
the regulatory and educational benefits afforded . . . as a
consequence of designating critical habitat in this area.’”
Thus, the 2010 Final Rule fully addresses the impact on
conservation plans and local partnerships. Further, the Final
Rule explains the changed circumstances requiring
designation and articulates the reasons for why the benefits of
inclusion outweigh the benefits of exclusion. This is clearly
adequate even in the absence of a specific citation to the
assurance in the MSHCP-IA.
D. The Designation Does Not Violate the “No
Surprises Rule”
Alternatively, Appellants argue that the designation of
habitat in areas covered by the MSHCP violates the FWS’s
“No Surprises Rule.” The “No Surprises Rule” provides that
once a permit has been issued pursuant to a habitat
conservation plan, and assuming that the terms of the
underlying plan are being implemented, the permittee “may
remain secure regarding the agreed upon cost of conservation
and mitigation.” Habitat Conservation Plan Assurances (“No
Surprises”) Rule, 63 Fed. Reg. 8,859, 8,867 (Feb. 23, 1998).
In other words, the FWS may not require permittees to pay
BEAR VALLEY MUT. WATER CO. V. JEWELL 31
for additional conservation and mitigation measures absent
“unforeseen circumstances.” 50 C.F.R. §§ 17.32(b)(5)(ii–iii).
We agree with the district court that, although the FWS
cites the possibility of “conservation not currently provided
under the plan” as a potential benefit in the critical habitat
designation, nothing in the 2010 Final Rule discusses
“additional measures by the [MSHCP] permittees in
undertaking covered activities,” nor does the 2010 Final Rule
require the permittees to undertake any additional acts for
conservation. Bear Valley Mut. Water Co., 2012 WL
5353353, at *15. Appellants admit that the FWS has not yet
imposed such a requirement, but contend that the “additional
regulatory benefit” rationale is arbitrary and capricious
because it could violate the No Surprises Rule in the future.
At this juncture, these concerns are speculative. Tellingly,
the Appellants can point to no additional conservation or
mitigation measures that have been imposed on them.
Consequently, based on the record on this appeal, we
conclude that the 2010 Final Rule does not violate the No
Surprises Rule.
E. Appellants Had Adequate Opportunity to
Comment on the FWS’s Scientific Citations
Next, the Appellants argue that the FWS committed error
by citing to two new studies—SMEA 2009 and Thompson et.
al., 2010—in the 2010 Final Rule to support its conclusion
that the status of the sucker and its available habitat have
continued to decline. We see no impropriety in the use of
those studies.
The ESA’s notice and comment procedures require that
the public be given an opportunity to provide comments on
32 BEAR VALLEY MUT. WATER CO. V. JEWELL
the contents of a proposed rule. The contents of a proposed
rule for a revised habitat designation “shall contain the
complete text of the proposed rule, a summary of the data on
which the proposal is based (including, as appropriate,
citation of pertinent information sources), and shall show the
relationship of such data to the rule proposed.” 50 C.F.R.
§ 424.16(b) (effective prior to May 31, 2012). While “[a]n
agency commits serious procedural error when it fails to
reveal portions of the technical basis for a proposed rule in
time to allow for meaningful commentary . . . . the public is
not entitled to review and comment on every piece of
information utilized during rule making. . . . [A]n agency,
without reopening the comment period, may use
supplementary data . . . that expands on and confirms
information contained in the proposed rulemaking . . . so long
as no prejudice is shown.” Kern Cnty. Farm Bureau v. Allen,
450 F.3d 1072, 1076 (9th Cir. 2006) (internal quotations
omitted); accord Idaho Farm Bureau Fed’n v. Babbitt,
58 F.3d 1392, 1402 (9th Cir. 1995).
The Federal Appellees correctly contend that the
Thompson and SMEA studies simply expand upon and
confirm the data used to support two conclusions in the 2009
Proposed Rule—the decline of the sucker and its habitat.
Further, the Thompson study was cited in the Proposed Rule
in its draft form, and was thus available to the public for
comment. While the SMEA study was not available at the
time of the Proposed Rule, it was supplementary to the
otherwise cited studies, which also found that the sucker and
its habitat have declined over time.
Appellants do not challenge the reliability of the studies,
but disagree with the FWS’s interpretation and use of the
studies. Specifically, Appellants argue that the majority of
BEAR VALLEY MUT. WATER CO. V. JEWELL 33
the studies in the 2009 Proposed Rule predate 2004, while the
FWS based its decision to designate critical habitat in the
2010 Final Rule on a conclusion, supported by the new
studies, that there has been a continued decline of the sucker
since the MSHCP was finalized in 2004.
Appellants’ contention that the FWS used these studies to
show decline since 2004 is not correct. Rather, the FWS used
these studies to supplement the previous studies which
showed the persistent decline of the sucker and its habitat
over time. Appellants fail to explain why the pre-2004
studies would not tend to support the conclusion that the
habitat continues to decline. More importantly, Appellants do
not explain why the 2009 Proposed Rule’s citation to the pre-
2004 studies did not put them “on notice” that the decline of
the sucker and its habitat were relevant factors in the FWS’s
decision making process, and did not afford Appellants an
opportunity to comment on those issues.
Even if the FWS somehow erred in failing to reopen the
comment period after the addition of these two studies,
Appellants fail to demonstrate how this error prejudiced
them. See 5 U.S.C. § 706 (requiring that a court reviewing
agency decisions take “due account . . . of the rule of
prejudicial error”).” Appellants do not challenge the studies’
reliability or conclusions or cite to studies supporting
alternative findings. Accordingly, we affirm the district
court’s grant of summary judgment in favor of Appellees on
all claims arising out of the designation of critical habitat in
areas covered by the MSHCP.
34 BEAR VALLEY MUT. WATER CO. V. JEWELL
III. The FWS’s Designation of Critical Habitat in
Unoccupied Areas Was Proper
The ESA authorizes the FWS to designate unoccupied
areas “upon a determination by the [Service] that such areas
are essential for the conservation of the species.” 16 U.S.C.
§ 1532(5)(A)(ii). The implementing regulation further
provides that “critical habitat areas outside the geographical
area presently occupied by a species” should be designated
“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(e).
The 2010 Final Rule designated unoccupied habitat in
subunit 1A of the Santa Ana River as essential because areas
within subunit 1A are the primary sources of high quality
coarse sediment for the downstream occupied portions of the
Santa Ana River. The Final Rule determined that coarse
sediment was essential to the sucker because provided a
spawning ground as well as a feeding ground from which the
sucker obtained algae, insects, and detritus. The Final Rule
also determined that Subunit 1A assisted in maintaining
water quality and temperature in the occupied reaches of the
river. 75 Fed. Reg. at 77,972–73, 77,977–78.
Appellants claim that this justification fails to establish
that subunit 1A is essential to the conservation of the species
and that the designated occupied areas are inadequate to
ensure the conservation of the species. Although Appellants
consider these to be two separate requirements, they are
identical. The ESA requires the FWS to demonstrate that
unoccupied area is “essential” for conservation before
designating it as critical habitat. The implementing
regulation phrases this same requirement in a different way,
BEAR VALLEY MUT. WATER CO. V. JEWELL 35
and states that the FWS must show that the occupied habitat
is not adequate for conservation. As the district court
properly found, “[i]f certain habitat is essential, it stands to
reason that if the [Service] did not designate this habitat,
whatever the [Service] otherwise designated would be
inadequate. . . . [T]he regulation provides only elaboration
and not an additional requirement or restriction.” Bear Valley
Mut. Water Co., 2012 WL 5353353, at *22. The Final Rule
sufficiently explained why the designation of unoccupied
habitat in subunit 1A was essential, and conversely, why
designation of solely occupied habitat was inadequate for the
conservation of the species.
Appellants further contend that the FWS’s justification
for designating this unoccupied land was arbitrary and
capricious because “uninhabitable source areas do not meet
the statutory requirement for critical habitat.” There is no
support for this contention in the text of the ESA or the
implementing regulation, which requires the Service to show
that the area is “essential,” without further defining that term
as “habitable.” Finally, Appellants argue that the FWS’s
reliance on the fact that PCEs exist in the designated
unoccupied habitat is contrary to the statute because it is the
same test used for occupied habitat. But the 2010 Final Rule
does not designate subunit 1A as essential only because it
contains PCEs. Rather, the area is designated as essential
because it provides “sources of water and coarse sediment
. . . . necessary to maintain preferred substrate conditions” for
the sucker. 75 Fed. Reg. at 77,972–73 (emphasis added). For
these reasons, we affirm the district court’s grant of summary
judgment in favor of Appellees as to all claims pertaining to
the designation of unoccupied habitat in subunit 1A.
36 BEAR VALLEY MUT. WATER CO. V. JEWELL
IV. Appellants’ NEPA Claim Fails as a Matter of Law
Finally, Appellants contend that the FWS violated NEPA
by failing to prepare an environmental impact statement in
connection with its 2010 Final Rule. Any such claim is
foreclosed by the controlling law of this Circuit, which holds
“that [the] NEPA does not apply to the designation of a
critical habitat.” Douglas Cnty., 48 F.3d at 1502. Although
Appellants ask this Court to revisit and overrule Douglas
County, “in the absence of intervening Supreme Court
precedent, one panel cannot overturn another panel.” Hart v.
Massanari, 266 F.3 115, 1171–72 (9th Cir. 2001).
Accordingly, we affirm the district court’s grant of summary
judgment in favor of Appellees on any claim arising under
NEPA.
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of
the district court.