Case 5:04-cv JF Document 58 Filed 04/29/2005 Page 1 of 36

Transcription

1 Case :0-cv-0-JF Document Filed 0//0 Page of KELLY A. JOHNSON Acting Assistant Attorney General United States Department of Justice Environment and Natural Resources Division JEAN E. WILLIAMS, Chief LISA L. RUSSELL, Assistant Chief MICHAEL R. EITEL (SBN (NE Trial Attorney Wildlife and Marine Resources Section Benjamin Franklin Station, P.O. Box Washington, D.C. 0- Telephone: ( 0-0 Facsimile: ( 0-0 KEVIN V. RYAN (SBN (CA United States Attorney Northern District of California JAMES CODA (SBN (WI Assistant United States Attorney Attorneys for Federal Defendants IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA (SAN JOSE DIVISION CENTER FOR BIOLOGICAL DIVERSITY, and CALIFORNIA NATIVE PLANT SOCIETY, non-profit organizations, v. Plaintiffs, BUREAU OF LAND MANAGEMENT, and MIKE POOL, State Director of the Bureau of Land Management for California, and Defendants, SALINAS RAMBLERS MOTORCYCLE CLUB; AMERICAN MOTORCYCLIST ASSOC. DISTRICT ; CALIFORNIA ASSOC. OF WHEEL DRIVE CLUBS; OFF-ROAD BUSINESS ASSOC.; and THE BLUERIBBON COALITION, Defendant-Intervenor Case No: :0-cv--JF FEDERAL DEFENDANTS CROSS- MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT CROSS-MOTION AND IN OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT Date: June, 0 Time: :00 a.m. Courtroom: Courtroom, th Floor Judge: The Honorable Jeremy Fogel Civ. No. :0-cv-0-JF

2 Case :0-cv-0-JF Document Filed 0//0 Page of TABLE OF CONTENTS PAGE BACKGROUND... I. STATUTORY AND REGULATORY BACKGROUND... II. FACTUAL BACKGROUND... A. The Clear Creek Management Area... B. Management History Of The Clear Creek Management Area... STANDARD OF REVIEW... I. SUMMARY JUDGMENT STANDARD... II. SCOPE OF REVIEW UNDER THE ADMINISTRATIVE PROCEDURE ACT... ARGUMENT... I. BLM HAS FULFILLED ITS OBLIGATIONS UNDER (a( OF THE ESA... II. III. PLAINTIFFS CLAIM THAT BLM MUST PROCEDURALLY REINITIATE CONSULTATION WITH FWS IS MOOT... BLM HAS FULFILLED ITS SUBSTANTIVE OBLIGATIONS UNDER THE ESA... A. The Biological Opinion Is The Legally Operative Document In This Case.. B. BLM s On-going Management Of CCMA Is Consistent With The Proposed Action Reviewed In the BO..... The BO Did Not Contemplate Immediate Route Reductions Or Final Route Designations By A Date-Certain.... BLM Has Implemented Its Monitoring and Enforcement Program.... BLM Has Implemented Protective Measures As Contemplated In The BO... C. Because BLM Has Managed CCMA Consistently With The BO, Its Reliance On The BO s No Jeopardy Opinion Is Not Arbitrary And Capricious... IV. INJUNCTIVE RELIEF IS NOT APPROPRIATE IN THIS CASE... CONCLUSION... 0 i Civ. No. :0-cv-0-JF

3 Case :0-cv-0-JF Document Filed 0//0 Page of TABLE OF AUTHORITIES CASES PAGE American Tunaboat Ass n v. Brown, F.d 0, 0 (th Cir.... Center for Biological Diversity v. Rumsfeld, F. Supp.d, (D. Ariz. 0..., Central Ariz. Water Conservation Dist. v. EPA, 0 F.d, -0 (th Cir.... Church of Scientology v. United States, 0 U.S., (... Environmental Protection Info. Ctr. v. Pacific Lumber, F.d, (th Cir Forest Guardians v. United States Forest Serv., F.d, (th Cir Fund for Animals v. Babbitt, 0 F. Supp., (D.D.C.... GTE California v. FCC, F.d 0, (th Cir.... Independent Acceptance Co. v. California, F.d, (th Cir Krichbaum v. United States Forest Serv., F. Supp. d, (W.D. Va.... Los Angeles County v. Davis, 0 U.S., (... Mabtsushita Elec. Indus. Co. v. Zenith Radio Corp., U.S., (... Marsh v. Oregon Natural Resources Council, 0 U.S. 0, (..., National Wildlife Fed n v. Burlington N. R.R., F.d 0, (th Cir Newton County Wildlife Ass n v. Rogers, F.d 0, (th Cir.... Northwest Resource Info. Ctr. v. NMFS, F.d 0, (th Cir.... Norton v. Southern Utah Wilderness Alliance, S.Ct., (0..., Pacific Rivers Council v. Thomas, 0 F.d 0, (th Cir.... Pyramid Lake Paiute Tribe v. United States Dep t of Navy, F.d, (th Cir....,, Sierra Club v. Marsh, F.d, (th Cir....,,, Southern Utah Wilderness Alliance v. Smith, F.d, - (th Cir.... Southwest Center for Biological Diversity v. United States Forest Serv., 0 F.d, (th Cir Southwest Center for Biological Diversity v. United States Forest Serv., F.Supp.d 0, (D. Ariz United States Postal Serv. v. Gregory, U.S., - (0... Village of False Pass v. Watt, F.Supp., (D. Alaska... ii Civ. No. :0-cv-0-JF

4 Case :0-cv-0-JF Document Filed 0//0 Page of Water Keeper Alliance v. Untied States Dep t of Defense, F.d, (st Cir Wyoming Outdoor Council v. Bosworth, F. Supp. d, (D.D.C STATUTES U.S.C.... U.S.C. (b... U.S.C.... U.S.C. (a(...,, U.S.C. (c(... U.S.C. (d... U.S.C. 0(g((A..., C.F.R C.F.R. 0.0(a... 0 C.F.R C.F.R. 0.(a... 0 C.F.R. 0.(b... 0 C.F.R. 0.(a... 0 C.F.R. 0.(c... 0 C.F.R. 0.(d... 0 C.F.R C.F.R. 0.(b..., - 0 Fed. Reg., (Feb.,...,,,, Fed. Reg., (June,... iii Civ. No. :0-cv-0-JF

5 Case :0-cv-0-JF Document Filed 0//0 Page of NOTICE OF DEFENDANTS CROSS-MOTION FOR SUMMARY JUDGMENT NOTICE IS HEREBY GIVEN that on June, 0, at :00 a.m., before the Honorable Jeremy Fogel at 0 South st Street, San Jose, California, in Courtroom, Federal Defendants, the Bureau of Land Management and Mike Pool, State Director of the Bureau of Land Management for California, will move this Court for summary judgment on its behalf. Federal Defendants respectfully request that the Court enter judgment on their behalf and against Plaintiffs and order that all parties bear their own attorneys fees and costs of litigation. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS CROSS-MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT Plaintiffs in this case challenge the Bureau of Land Management s ( BLM actions under the Endangered Species Act ( ESA, U.S.C. et seq. Specifically, Plaintiffs allege that BLM has failed to manage the Clear Creek Management Area ( CCMA in accordance with the Biological Opinion issued by the Fish and Wildlife Service ( FWS in ( BO. BLM, however, has been managing CCMA in accordance with the BO. After formal consultation ended in, BLM began to implement its action as proposed during the consultation process. When implementing various actions, BLM has been in constant collaboration with FWS over the effects of its actions on the San Benito evening-primrose, a threatened plant species listed under the ESA. Since, FWS has consistently determined that BLM need not reinitiate consultation and that BLM s actions are not likely to jeopardize the continued existence of the evening-primrose. BLM has thus reasonably relied on its own expertise and that of FWS in managing CCMA and in determining whether it has fulfilled its obligations under the ESA. Consequently, Plaintiffs claims that BLM is violating the ESA fall flat, as their assertions have support neither in fact nor law. Plaintiffs first misinterpret the obligations set forth in FWS BO. Next, Plaintiffs incorrectly assert that BLM s management of CCMA has changed from the proposed action subject to (a( consultation and the resulting BO. Finally, Plaintiffs misinterpret the ESA and (a( as they apply to the facts of this case. Accordingly, Plaintiffs motion for summary judgment must be rejected, and Defendants cross-motion for summary judgment should be granted. Civ. No. :0-cv-0-JF

6 Case :0-cv-0-JF Document Filed 0//0 Page of BACKGROUND I. STATUTORY AND REGULATORY BACKGROUND Plaintiffs bring this case under the ESA citizen-suit provision, U.S.C. 0(g((A, seeking to enjoin and compel agency action under (a( of the ESA, U.S.C. (a(. The ESA was enacted in to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species and threatened species... U.S.C. (b. Once a species is listed as endangered or threatened, statutory prohibitions help ensure the survival and recovery of the species. Section of the Endangered Species Act requires each federal agency to ensure that any action authorized, funded, or carried out by the agency is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat. U.S.C. (a(. Jeopardize the continued existence of means to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species. 0 C.F.R To assist federal agencies in complying with (a(, the agency proposing the action ( the action agency is required to consult with FWS whenever a federal action may affect a threatened or endangered species or designated critical habitat. 0 C.F.R. 0.(a. Formal consultation typically begins with a written request by the action agency, 0 C.F.R. 0.(c, and concludes with the issuance of a biological opinion ( BO by FWS. Id. 0.(l(. In certain circumstances, a federal agency must prepare a biological assessment ( BA to evaluate the potential effects of a proposed action. U.S.C. (c(; 0 C.F.R. 0.(a. Although a BA is required only if the agency is proposing to engage in a major construction activity, agencies often prepare BA s voluntarily as a convenient mechanism to facilitate the consultation. 0 C.F.R. 0.(b; 0 C.F.R. 0.0(a; see also Newton County Wildlife Ass n v. Rogers, F.d 0, (th Cir.. The BO issued by FWS assesses the likelihood of jeopardy to the species and the likelihood that the proposed action will result in adverse modification of critical habitat. See id. 0.(g (discussing FWS responsibilities during formal consultation. In rendering its BO that the action is or is not likely to jeopardize the continued existence of any listed species, FWS must use the best scientific and Civ. No. :0-cv-0-JF

7 Case :0-cv-0-JF Document Filed 0//0 Page of commercial data available. U.S.C. (a(; 0 C.F.R. 0.(d. The ESA s implementing regulations specifically outline the circumstances under which reinitiation of consultation is required. The regulations provide that: [r]einitiation of formal consultation is required and shall be requested by the Federal agency or by FWS, where discretionary Federal involvement or control over the action has been retained or is authorized by law and: (b If new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered; (c If the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion. 0 C.F.R. 0.. The action agency in an ESA consultation process (in this case, BLM, not FWS, has the duty to reinitiate consultation if the circumstances in 0 C.F.R. 0. are present. Fed. Reg., (June, ; Sierra Club v. Marsh, F.d, (th Cir.. Nonetheless, courts generally defer to the expertise of FWS, given that FWS is the agency that wrote the consultation regulations and is primarily responsible for protecting endangered species. Sierra Club v. Marsh, F.d at. [T]he standard for demonstrating that an agency was arbitrary and capricious in failing to reinitiate consultation is an exacting one. Hawksbill Sea Turtle v.fema, F. Supp. d, 0 (D. VI.. II. FACTUAL BACKGROUND A. The Clear Creek Management Area The Clear Creek Management Area [] is located in central California in the southern portion of San Benito County and the western portion of Fresno County. AR at -. The CCMA consists of approximately, acres, and approximately, of those acres are managed by BLM. / There are two predominate groups of vegetation occurring within CCMA. The first category is vegetation growing on soils derived from sedimentary rock. The second category of vegetation grows on soils derived from serpentine rock. AR at. The serpentine soils predominately occur within a 0,-acre parcel of land located within CCMA, known as the Serpentine Area of Critical Environmental Concern ( ACEC. AR, at -. The ACEC was designated in due to the health concerns associated / Of CCMA s, acres, approximately, acres are owned by BLM,, acres are owned by private entities, and, acres are owned by the State of California. AR at -. Civ. No. :0-cv-0-JF

8 Case :0-cv-0-JF Document Filed 0//0 Page of with the naturally occurring asbestos within the serpentine soils and because of the unique vegetation and forest types associated with serpentine soil. AR at -. Located within the ACEC is the San Benito Mountain Research Natural Area ( SBMRNA. AR at -. The SBMRNA was designated as a Research Natural Area to provide research and educational opportunities while maintaining and protecting the unique assemblage vegetation in as natural condition as possible. AR at -. Within the SBMRNA, OHV use is authorized on only a limited number of existing roads, and cross-county or off-route travel is prohibited. AR at -. Growing primarily on serpentine soils within the ACEC is the San Benito evening-primrose (Camissonia benitensis. AR / The evening-primrose was listed as a threatened species under the ESA, U.S.C.. 0 Fed. Reg., (Feb.,. OHV recreation was documented as the principle threat to the species and the local ecosystem as early as Additional threats included... camping and gem hunting, gravel mining, prospecting[,] road maintenance with bulldozers, vandalism, and environmental stochasticity due to the few extant individuals within each population. AR at. Fifty two suboccurrences of the primrose are currently known to exist. AR The suboccurrences are grouped together into occurrences. / AR at. Of the occurrences, are entirely and are partially on lands administered by the [BLM]. AR at ; AR (noting that, of the suboccurrences, occur on public lands within CCMA. Census data has revealed that the evening-primrose sites exhibit a wide range in size (. acres to.0 due to several environmental factors. AR Further, the evening-primrose is susceptible to extreme annual fluctuations in total numbers of plants, the number of individuals at each suboccurrence may vary widely from year-to-year due to climatic conditions. AR ; AR 000-0; Pls Memo at (acknowledging that the evening-primrose population numbers fluctuate depending on / The evening-primrose is usually less than eight inches tall and has yellow flowers of petals. This primrose germinates in late spring and dies in early summer after producing seed for the following year. Despite its name, this evening primrose blooms from morning until early afternoon, from mid-april to mid-may. Habitat for the primrose includes serpentine alluvial terraces, streambanks, and areas of debris flow (landslides. AR at. / BLM defines an occurrence as any plant within 0. mile... of any other. AR at. A suboccurrence is defined as any group of plants that differ[s] notably in habitat characteristics... or geographic location from any other group of plants belonging to the same occurrence. Id. Civ. No. :0-cv-0-JF

9 Case :0-cv-0-JF Document Filed 0//0 Page of climatic conditions (emphasis added. For example, census data from to, a period during which sampling methodology [had] been relatively consistent, showed that the plants fluctuated between, plants in ; plants in ;, plants in ; and, plants in. AR. Populations reached, in 00 and, in 0. AR 0-0. In addition to CCMA s importance as an area for flora and fauna, CCMA has been an important recreation destination for central California residents for over years. In, BLM noted that Clear Creek was among the top five most popular areas cited by California off-highway-vehicle users. / AR at. CCMA has been most popular with motorcyclists who use the area for hill climbing, trail riding, and camping. Other common recreation activities include -wheel drive off-highway vehicle driving, hobby gem/mineral collecting, and sightseeing. Id. Most recreational use of CCMA occurs between November and April, or during the wet season, as the summer months are plagued with hot, dry, and dusty conditions. Id.; AR at ES-, -. B. Management History Of The Clear Creek Management Area BLM, as the Federal agency charged with the management of CCMA, has engaged in significant land use planning efforts over the past two decades. Charged with a multiple use-mandate, BLM has worked diligently to afford opportunities for multiple use of CCMA while working to manage asbestos exposure and hazards and ensuring the protection of rare plant species and habitat. AR at. To this end, specific land-use planning for this area was developed in the Hollister [Resource Management Plan ( RMP ] in, and culminated in the Clear Creek Management Plan of. Id. The plans provided guidance for BLM s management of CCMA. Id. at, ; AR -0. After issuance of the plans, BLM continued to acquire new information concerning environmental conditions and human health risks in order to inform its management decisions. For instance: [i]n, the BLM completed a four-year contract study on the ecology of the federally protected San Benito evening primrose. The study resulted in the discovery of several new populations of the species and identified unoccupied potential habitat areas. AR at. As a result of this study and other new information, BLM prepared a draft Environmental Impact Statement in to address further protection of the evening-primrose, public asbestos exposure, / BLM defines OHV as any motorized vehicle capable of, or designed for, travel on or immediately over land, water, or other natural terrain. C.F.R. 0.0-; AR at. Civ. No. :0-cv-0-JF

10 Case :0-cv-0-JF Document Filed 0//0 Page of erosion, and designation of OHV routes. A final Environmental Impact Statement and Resource Management Plan Amendment was completed in. AR. BLM continued to monitor eveningprimrose yearly. AR at -. In, BLM worked diligently to comprehensively inventory much of the evening-primrose s known and potential habitat. During the inventory, botanists visited, mapped, and analyzed known and potential evening-primrose habitat for protection needs. AR -. That year, BLM also stepped up implementation of protective measures designed to protect eveningprimrose, such as the installing protective fencing, pipe barriers, signs, erosion control features, and conducting route maintenance. AR, 0,, Fence map, Binder. Final Environmental Impact Statement On July,, BLM signed the completed Clear Creek Management Area Proposed Resource Management Plan Amendment and Final Environmental Impact Statement ( FEIS, which was released to the public in May. AR. BLM developed the FEIS to re-evaluate existing land use decisions and to evaluate alternatives for managing public use in the [CCMA]. AR at iv. As a result of the evaluation, BLM identified six main issues, or Resource Condition Objectives ( RCO s, that would guide its management actions: Airborne asbestos emissions; Public health risks associated with asbestos exposure; Asbestos sediment production and transport; San Benito evening primrose recovery; Watershed and riparian zone management; [and] Existing multiple uses. Id. at v. After a review, analysis, public comment, and revision, BLM identified Alternative as its preferred alternative, which combined elements of various alternatives in the draft version of the FEIS. This alternative was modified from the Draft EIS to enhance protection of natural resources and management of OHV s. Under the modified Alternative, all vehicle travel would be restricted to a designated system of 0 miles and managed primarily under a Limited Use designation. Intensive OHV use in the Clear Creek watershed was eliminated. The alternative also set out a plan to inventory and set criteria for ultimately designating OHV routes and areas for OHV use through further public planning processes. Id. at vii. BLM chose to select a balanced use alternative, with the belief that sensitive resources could be protected while still providing for public use. AR at. / / With regard to the evening-primrose, BLM determined that [l]ongterm protection of the San Benito evening primrose would be enhanced and recovery efforts accelerated under Alternative. AR at Civ. No. :0-cv-0-JF

11 Case :0-cv-0-JF Document Filed 0//0 Page of Formal Consultation between BLM and FWS On January,, BLM requested the initiation of formal consultation with FWS over its management of CCMA, based on its determination that the proposed action may affect the San Benito evening primrose. AR. During the consultation period, BLM and FWS worked together to define and clarify the proposed action under review. See AR 0, AR -,. For instance, BLM, with FWS input, developed an Implementation Strategy, which identified various actions and step-down measures which BLM would implement as necessary to protect the evening-primrose, such as protecting BLM-managed occurrences of evening primrose from camping and vehicle disturbance and discouraging vehicle use by signing, fencing, pipe barriers, closing trails, and closing areas, if necessary. AR -. The Implementation Strategy indicated that BLM s actions will be evaluated to assure the most reasonable protection is afforded the occurrence or suboccurrence while being fiscally responsible. Therefore, various steps may be skipped. Rather than closing subwatersheds to OHV use a stepwise approach of correcting route design will be attempted. Should resources remain at risk, then closure of routes or play areas will be enforced. AR -. / This strategy is reinforced in the BO: [t]he measures also contain provisions for the Bureau to close specific areas to OHV use if compliance... cannot be achieved and to close the entire CCMA if the Bureau is unable, for whatever reason, to provide the level of monitoring necessary to ensure that all occurrences of [evening-primrose] are being disturbed by OHV use. AR -. FWS thus reviewed BLM s proposed action, which consisted of the preferred alternative from the FEIS, as modified by BLM after the issuance of the FEIS, and including BLM s proposed additional measures to protect evening-primrose developed during the consultation with FWS. AR -,,. Similar to the FEIS, the action under review by FWS had five RCO s: reduce asbestos exposure and emissions...; protect existing populations of [the eveningprimrose]... ; reduce erosion and sediment transport in all CCMA watersheds; adjust the boundaries of the San Benito Mountain Natural Area...; and manage the [CCMA] for dispersed OHV use.... viii. Specifically, BLM noted that [m]anagement decisions should define actions to stabilize or improve the status of the [San Benito evening primrose]. Id. at. / One of BLM s step-down measures provided that it would post a warning when ten incidents of damage to known protected occurrences and would close CCMA or areas of CCMA to OHV use when monitoring indicated incidents of damage... to known protected occurrences. AR. Civ. No. :0-cv-0-JF

12 Case :0-cv-0-JF Document Filed 0//0 Page of AR -0. To meet the RCO s, BLM proposed to reduce asbestos exposure, protect existing populations of evening-primrose, reduce erosion and sediment transport, adjust the San Benito Mountain Natural Area, manage CCMA for dispersed OHV use, establish open or closed OHV areas as conditions and resources warrant, and to take other similar actions. See AR -0 through. After reviewing the proposed action, as modified, FWS issued a BO on September, finding that the Bureau s continued management of the Clear Creek Management Area is not likely to jeopardize the continued existence of Camissonia benitensis. Critical habitat has not been designated for this species. Therefore, the proposed action will not affect critical habitat. AR -0. Record of Decision After FWS issued its BO, BLM finalized the Approved Resource Management Plan Amendment Record of Decision ( ROD for CCMA on January,. The ROD provides guidance and direction for BLM s management of CCMA by documenting approval of the proposed action as modified [from Alternative set forth in the FEIS]. AR -0. Alternative was further modified from the FEIS, in consultation with FWS, to strengthen the RCO s and to further protect eveningprimrose, sensitive species, watershed resources, and specifically designate CCMA as a Limited Use area for OHV use. Management actions were also expanded to meet the RCO s. AR at -. Concisely, the ROD directed the designation of approximately 0 miles of routes and approximately acres of barrens based upon resource management criteria. AR -. BLM explained that, at the time of the signing of the ROD, many designated routes had not been analyzed for resource conflict, and that such analysis was to be an on-going process, culminating with a public planning process to ensure the RCO s were met. AR -. BLM found that its action provided the best mix of management options to protect resources, reduce erosion and water quality impacts, reduce risk, and still allow for dispersed recreation, both motorized and non-motorized. AR -. 0 Interim Protection Strategy While working to implement final route designations for CCMA and in close cooperation with FWS, BLM issued an Interim Protection Strategy ( IPS in 0 for evening-primrose, which define[d] measures and terms contained in the [ BO] and existing Compliance Monitoring Plan. AR at ; AR. The IPS was developed to provide guidance for management activities that would occur Civ. No. :0-cv-0-JF

13 Case :0-cv-0-JF Document Filed 0//0 Page of while BLM was completing the final routes of travel designations. AR at. Among other provisions, the IPS provided for increased site monitoring, signing for educational and law enforcement purposes, fencing all known and newly discovered evening-primrose sites, installing pipe barriers, closing CCMA or specific areas as necessary to protect evening-primrose, and patrolling by staff and law enforcement personnel. Id. at -. BLM proceeded to aggressively implement[] the Interim Protection Strategy by erecting fences, patrolling the CCMA, and conducting necessary repairs. AR. 0 Draft Environmental Impact Statement After route inventory and assessment was conducted, BLM issued a Draft Resource Management Plan and Draft Environmental Impact Statement ( 0 DEIS in 0. AR,. The purpose of the 0 DEIS and the resulting ROD is to implement the decisions made in the CCMA ROD and revise and reestablish guidance, objectives, policies, and management actions for the CCMA. Id. at ES-. As such, BLM identified the alternatives to be considered to fulfill the purpose and need for off-road vehicle designations for routes and areas. Id. at -. The 0 DEIS proposes significant reductions in the miles of routes and acres of barrens for OHV use, i.e., reductions down to miles of routes and acres of barrens. AR at -. The only barrens allowed for OHV use would be in the higher elevations of the Clear Creek watershed, away from riparian areas; all barrens in remaining watersheds would be closed to OHV use, and several sub-watersheds would also be closed. The 0 DEIS also proposes significant reductions in the number of stream crossings and in the miles of routes associated with riparian and sensitive species habitat areas. AR at -, -, -, - through -. 0 Initiation of Formal Consultation Between BLM and FWS On January, 0, BLM requested to enter into formal consultation with FWS on, among other things, the effects of the final route and barren designations on evening-primrose. AR 00-0; 00-0; 000. To aid FWS in conducting consultations, BLM submitted a Biological Assessment to FWS ( 0 BA. AR 000. In the 0 BA, BLM noted that it had chosen Proposed Alternative A, outlined in the 0 DEIS, as its proposed action. Under that alternative, CCMA would be managed under a Limited Use vehicle designation. All vehicles would be restricted to a designated route system and to designated open barrens. Cross country travel would not be allowed anywhere in CCMA, except for designated open barrens. AR 000 at. Specifically, all routes within CCMA would be designated as either open, closed, or Civ. No. :0-cv-0-JF

14 Case :0-cv-0-JF Document Filed 0//0 Page of Limited, resulting in approximately miles of open and limited routes, with all remaining routes designated as closed or limited to administrative use. Id.; AR at - (defining open, closed, and limited routes. Further, the proposed action designates acres of barrens as open. All barrens not designated as open or limited would be closed. Id. at. The proposed action currently under consultation would designate routes at levels below the target levels identified in the BO and ROD, thus the proposed action is more protective than FWS contemplated in the BO. Compare AR -0 (0 miles of designated routes and 00 acres of barrens targeted in the BO with AR 000 at, (in 0, designating miles of designated routes and acres of barrens. BLM noted that [t]he Proposed Action [in the 0 DEIS subject to this consultation] will contribute to further protection of this species by limiting OHV recreation to designated routes, trails and areas. AR 000 at (emphasis added. For instance, the number of route stream crossings and miles of routes in riparian areas would be reduced by % and % respectively throughout CCMA. AR This current planning effort will result in a system of designated routes and barrens which implement the resource condition objectives identified in the FEIS, BO, ROD, and 0 DEIS. AR BLM currently anticipates receiving a BO from FWS in August 0. AR 00. STANDARD OF REVIEW I. SUMMARY JUDGMENT STANDARD Summary judgment is appropriate where, viewing all the evidence in the light most favorable to the nonmovant, the record shows an absence of a genuine issue of material fact entitling the movant to judgment as a matter of law. Fed. R. Civ. P. (c; Mabtsushita Elec. Indus. Co. v. Zenith Radio Corp., U.S., (. Where the administrative record provides the complete factual predicate for review, the plaintiff s burden on summary judgment is not materially different from [its] ultimate burden on the merits because the factual record in the case is closed. Krichbaum v. United States Forest Serv., F. Supp. d, (W.D. Va. (internal quotations omitted. II. SCOPE OF REVIEW UNDER THE ADMINISTRATIVE PROCEDURE ACT This case is brought pursuant to the citizen-suit provision of the ESA, U.S.C. 0(g((A. That statutory provision, however, provides for a right of action it does not provide an independent standard or scope of review. In those circumstances, where a statutory provision does not provide for Civ. No. :0-cv-0-JF

15 Case :0-cv-0-JF Document Filed 0//0 Page of an independent standard and scope of review, the APA s standard and scope of review applies. Tribal Village of Akutan, F.d at. Under the APA, a reviewing court must satisfy itself that the agency decisions are not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Pyramid Lake Paiute Tribe v. United States Dep t of Navy, F.d, (th Cir.. The relevant inquiry is whether the agency considered the relevant factors and articulated a rational connection between the facts found and the choice made. Id. (internal citations omitted. The standard is highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision. See Independent Acceptance Co. v. California, F.d, (th Cir. 00 (internal quotations omitted. Thus, the scope of review under the arbitrary and capricious standard is narrow, and a court may not substitute its judgment for that of the agency. See United States Postal Serv. v. Gregory, U.S., - (0; see also Marsh v. Oregon Natural Resources Council, 0 U.S. 0, ( (defining standard. Furthermore, given the high level of technical expertise required to analyze the issues presented in this case, the court must defer to the informed discretion of the responsible federal agencies. Marsh, 0 U.S. at (quoting Kleppe v. Sierra Club, U.S. 0, (. ARGUMENT I. BLM HAS FULFILLED ITS OBLIGATIONS UNDER (a( OF THE ESA By consulting with FWS and managing CCMA consistently with the proposed action identified and analyzed in the BO, BLM has fulfilled its obligations under (a( of the ESA, U.S.C. (a(. Under of the ESA, an action agency fulfills its procedural obligation by consulting with FWS. Pyramid Lake Paiute Tribe, F.d at. However, each Federal agency also must ensure that its actions are not likely to jeopardize the continued existence of any threatened or endangered species. U.S.C. (a(. The Federal agency cannot rely solely on a FWS biological opinion to establish conclusively its compliance with its substantive obligations under section (a(. Pyramid Lake Paiute Tribe, F.d at. Rather, the action agency has an independent duty to insure that its actions satisfy and the jeopardy standard. Center for Biological Diversity v. Rumsfeld, F. Supp.d, (D. Ariz. 0; see also Village of False Pass v. Watt, F.Supp., (D. Alaska, aff d, F.d 0 (th Cir.. Nonetheless, a biological opinion is accorded Civ. No. :0-cv-0-JF

16 Case :0-cv-0-JF Document Filed 0//0 Page of substantial weight as evidence of the Secretary s compliance with the Endangered Species Act, Village of False Pass, F.Supp. at 0, and an action agency fulfills its substantive obligations under (a as long as its reliance on the biological opinion was not arbitrary and capricious. Pyramid Lake Paiute Tribe, F.d at ; Center for Biological Diversity, F.Supp.d at. In the case at bar, BLM consulted with FWS in, and FWS issued a BO finding that BLM s management actions, as proposed, are not likely to jeopardize evening-primrose. AR -0. BLM has thus fulfilled its procedural obligations under the ESA by consulting with FWS. Pyramid Lake Paiute Tribe, F.d at. Furthermore, BLM has to-date managed CCMA in a manner consistent with the proposed action as analyzed and reviewed by FWS in its BO and thus has complied with the substantive mandate of ESA (a(. See AR ; Section III, infra. Even FWS has repeatedly stated that BLM is in compliance with the proposed action analyzed in the BO. AR. Thus, BLM s reliance on the unchallenged BO, that its actions are not likely to jeopardize evening-primrose, is not arbitrary and capricious. Pyramid Lake Paiute Tribe, F.d at ; Central Ariz. Water Conservation Dist. v. EPA, 0 F.d, -0 (th Cir. (Deference to agency decisions is particularly important when the agency is making determinations within its area of special expertise, at the frontiers of science. Consequently, Defendants cross-motion for summary judgment must be granted and Plaintiffs motion for summary judgment must be denied. II. PLAINTIFFS CLAIM THAT BLM MUST PROCEDURALLY REINITIATE CONSULTATION WITH FWS IS MOOT Even though Plaintiffs cannot prove BLM has not managed CCMA in accordance with the BO, Plaintiffs claim that BLM must procedurally reinitiate consultation is moot. BLM has already reinitiated consultation. Article III of the Constitution prohibits Federal courts from taking further action in a matter when there is no longer a live case or controversy. Environmental Protection Info. Ctr. v. Pacific Lumber, F.d, ( th Cir. 0. A claim is moot if it has lost its character as a present, live controversy. American Tunaboat Ass n v. Brown, F.d 0, 0 (th Cir.. A Federal court does not have jurisdiction to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. Church of Scientology v. United States, 0 U.S., (. If an event occurs that prevents the court from granting effective relief, the claim is moot and Civ. No. :0-cv-0-JF

17 Case :0-cv-0-JF Document Filed 0//0 Page of must be dismissed. GTE California v. FCC, F.d 0, (th Cir. ; Northwest Resource Info. Ctr. v. NMFS, F.d 0, (th Cir.. Simply stated, a case is moot when the issues presented are no longer live or the parties lack a cognizable interest in the outcome. Los Angeles County v. Davis, 0 U.S., ( (quoting Powell v. McCormack, U.S., (. It is a well-settled rule that courts do not issue advisory opinions where the issues are no longer alive. Southern Utah Wilderness Alliance v. Smith, F.d, - (th Cir. ( SUWA ; Southwest Center for Biological Diversity v. United States Forest Serv., F.Supp.d 0, (D. Ariz. 00. An action may be moot when the very relief sought by a plaintiff has already been afforded. Here, BLM is currently engaged in formal consultation with FWS over OHV use in CCMA. AR 00-0; AR 00-0; AR 000. In the BO, FWS contemplated that BLM would inventory and evaluate OHV routes and barrens within CCMA in order to implement final route designations at certain targeted levels. AR -0 (noting that after route inventory and evaluation, BLM would reduce existing miles of designated routes the acreage of open play areas in CCMA. BLM has completed its route inventory and evaluation and has selected a proposed action that would finalize route designations in CCMA. AR 000. As such, BLM entered into formal consultation with FWS and has submitted a biological assessment (0 BA to aid FWS in its review of BLM s proposed action. Id. After review, FWS will issue a BO that will supersede [the] biological opinion... issued in for CCMA. Id.; AR 00 (BLM anticipates receiving a BO from FWS in August 0. Since BLM is currently engaged in formal consultation with FWS, no effective relief for the alleged violation can be given ; thus Plaintiffs claim is moot and must be dismissed. Forest Guardians v. United States Forest Serv., F.d, (th Cir. 0. / III. BLM HAS FULFILLED ITS SUBSTANTIVE OBLIGATIONS UNDER THE ESA. Despite the fact that BLM has initiated formal consultation with FWS, Plaintiffs seemingly desire the cessation of all OHV use in CCMA until the new biological opinion is issued. Pls Mem. at. To achieve this result, Plaintiffs make a wholesale challenge on BLM s management of CCMA. The / Alternatively, if the Court finds the case is not moot, then BLM has fulfilled its procedural obligations under (a( of the ESA for the same reasons it has not violated its substantive obligations under the ESA. See Section III, infra. Civ. No. :0-cv-0-JF

18 Case :0-cv-0-JF Document Filed 0//0 Page of Supreme Court, however, has cautioned the judiciary to avoid judicial entanglement in abstract policy disagreements which courts lack both expertise and information to resolve, because otherwise, it would ultimately become the task of the supervising court, rather than the agency, to work out compliance with the broad statutory mandate, injecting the judge into the day-to-day agency management. Norton v. Southern Utah Wilderness Alliance, S.Ct., (0. Nevertheless, Plaintiffs fail to show that BLM has failed to manage CCMA in a way as to avoid jeopardizing the continued existence of the evening-primrose. As shown below, the record demonstrates that BLM has been managing CCMA in accordance with the BO. A. The Biological Opinion Is The Legally Operative Document In This Case Before addressing the specific management actions challenged by Plaintiffs, it must be noted that Plaintiffs base their entire argument on a faulty interpretation of the BO. Plaintiffs argue that BLM is not managing CCMA in accordance with the proposed action identified in the FEIS and that FWS biological opinion applies to the action proposed in the FEIS. Pls Mem. at ( In, BLM selected a preferred alternative in its CCMA FEIS that was the subject of a Biological Opinion prepared by FWS. ; id. at ( The BO assessed the impacts of the preferred alternative in the EIS. ; id. at ( [M]anagement of the CCMA has failed to follow the management direction established in the EIS preferred alternative, which in turn was the subject of the BO.. Plaintiffs fail to acknowledge, however, that the preferred alternative identified in the FEIS was not the proposed action identified and reviewed in the BO. In the BO, FWS made it abundantly clear that the proposed action was significantly altered and modified from the preferred alternative in the FEIS. See, e.g., AR - ( [S]ince the final EIS was issued, substantial review and restructuring of the preferred alternative have provided additional details relative to meeting specific objectives for resource conditions and scheduling of implementation actions. The alternative as modified... is substantially enhanced and clarified, and was re-crafted. (emphasis added; AR (FWS stating that the BO was based on the [ RMP], the EIS, and additional measures that were proposed by [BLM] during the time period that the biological opinion was being developed. (emphasis added. Plaintiffs overlook the clear statement of the proposed action under review in the BO and thus fail to recognize that the description of the proposed action in the BO, not early versions Civ. No. :0-cv-0-JF

19 Case :0-cv-0-JF Document Filed 0//0 Page of found in BLM planning documents, is the description of the project reviewed by FWS. / B. BLM s On-going Management Of CCMA Is Consistent With The Proposed Action Reviewed In the BO. The BO Did Not Contemplate Immediate Route Reductions Or Final Route Designations By A Date-Certain Plaintiffs argue that certain provisions in the FEIS relating to route designations have not been implemented by BLM. Plaintiffs first argue that the FEIS contemplated immediate OHV route reductions. Pls Mem. at -. Plaintiffs also argue that BLM has not reduced overall routes to the target levels specified in the BO. Id. at -. Plaintiffs arguments all fail. By arguing that BLM is allowing more OHV use than analyzed in the BO, Plaintiffs ignore the clear and plain language of the BO. The BO did not set a time table for route designations. Nonetheless, Plaintiffs rely on statements made in the introductory section to the FEIS to argue that FWS, in the BO, contemplated that BLM would immediately reduce available OHV routes. Id. at. Those statements, however, do not appear in the actual text of the FEIS, the BO, the ROD, or any other BLM or FWS planning document. Plaintiffs simply ignore the fact that the BO did not specify any deadlines for BLM to make final route designations. AR - (noting that routes would be selected based on certain criteria, but failing to specify any specific dates or time frames under which the designations would occur; AR - (same; AR -0, 0 (discussing BLM s proposed route inventory and evaluation and the final target levels of routes within CCMA; AR - (discussing route and barren designations and noting that it continues to identify and evaluate routes within CCMA. Rather, the BO recognized that BLM would engage in such actions in accordance with its Implementation Plan, which is a detailed document but is designed to be fluid with frequent revisions and additions. AR -0,. The proposed action identified in the BO and approved in the ROD expressly recognized that OHV use would continue in CCMA while BLM inventoried and evaluated existing routes. AR -0 (noting that BLM would pursue a strategy to designate routes ; id. (noting that [a] / FWS clearly noted that BLM proposed additional protective measures and that FWS did not obligate or mandate such measures, contrary to Plaintiffs assertions. See Pls Mem. at (stating that the stipulations in the BO were required by the FWS. Civ. No. :0-cv-0-JF

20 Case :0-cv-0-JF Document Filed 0//0 Page of route inventory would be conducted that will evaluate overlap with sensitive resources. ; AR -0 (stating that the route inventory and evaluation will be used to designate management for water quality, sediment and erosion problems, and operations and maintenance of routes through CCMA. BLM would reduce the existing miles of designated routes in CCMA to 0 miles and provide for maintenance of 0. miles of roads and trails.. This approach identified in the BO is also consistent with the approach taken by BLM in the text to the FEIS: [e]ach year, additional routes would be systematically reviewed and field checked for continued use or closure and/or rehabilitation, until a core network of approximately 0 miles was designated. Seven play areas would remain conditionally open, pending a thorough route and open area inventory. AR at (emphasis added. / Not only did the BO and the text of the FEIS contemplate continued OHV use in CCMA, but FWS actions after the issuance of the BO indicate that it did not contemplate immediate route reductions. Since, FWS and BLM have been in constant collaboration over BLM s management of CCMA. FWS has been kept up-to-date on management progress through frequent meetings and receipt of various reports, such as monthly monitoring reports, annual reports, and California off-highway vehicle grant program reports. AR ( Since the issuance of the [ ROD], BLM has coordinated with the FWS throughout implementation of the identified management actions, to discuss improvements and problems related to public use, to solicit input related to the designation process, and provide comments on the draft recovery plan for [evening-primrose].. At no time has FWS indicated that BLM should immediately reduce available OHV routes, even when reviewing BLM s / The introductory language in the FEIS, which Plaintiffs rely upon, appears to be inconsistent with the actual text of the FEIS. For example, BLM set forth an Interim OHV Use Policy in the FEIS, which specified BLM actions that would occur while BLM designates routes. AR at. That Interim OHV Use Policy, however, is silent on any need to immediately reduce existing OHV routes while the route inventory and evaluation occurs. Id. Furthermore, BLM s actions since the issuance of the BO indicate that it also did not propose to immediately reduce routes in the BO. In its ROD, BLM stated that [e]xisting open routes and areas in the BLM database... at time of approval of the [ROD], will continue to be open for vehicle travel until disposition of routes and areas had been analyzed by the environmental review process. AR -; AR - ( The BLM recognizes that at the time this ROD is signed, many existing routes in CCMA have not been evaluated for resource conflicts and protection objectives. The identification and evaluation of these routes will be an on-going process. (emphasis added. Civ. No. :0-cv-0-JF

21 Case :0-cv-0-JF Document Filed 0//0 Page of action to determine if reinitiation of consultation was required. AR. / As such, Plaintiffs reliance on the intentions set out in the EIS to immediately reduce routes simply fails to show that FWS or BLM contemplated immediate route reductions or contemplated making final route designations by a date-certain in the BO. Pls Memo at. FWS expressly considered the impacts of continued OHV use on evening-primrose in the BO: [u]nder this modified preferred alternative, the potential still exists that the continued use of the CCMA by OHV s would result in impacts identified in the final EIS. These impacts include the irreversible and irretrievable commitment of resources potentially resulting in the loss of habitat and populations of [the evening-primrose]. AR -, (emphasis added. FWS further considered the effects of continued OHV use in 0-0 when it stated that BLM need not reinitiate consultation. AR ; AR. / Thus, BLM planned, and FWS understood, that route reduction based on resource conflict analysis would occur over time and that the final route designation process would occur after a public review process was completed. See e.g., AR -. BLM has now completed work on inventorying and evaluating routes and is in the process of designating final routes within CCMA. See AR 000. BLM s actions are thus consistent with BLM s planned action and FWS description of that action in the BO. Thus, the Court should defer to BLM and FWS expertise here, where resolution of this dispute involves primarily issues of fact. Arizona Cattle Growers Ass n, F.d at (quoting Marsh v. Oregon Natural Resources Council, 0 U.S. 0, ( ( Because analysis of the relevant documents requires a high level of technical expertise, we must defer to the informed discretion of the responsible federal agencies.. / For some documents in the administrative record which detail FWS involvement in management issues facing CCMA and the evening-primrose, see AR (Draft Recovery Plan; AR ( BO; AR ( ; AR - ( ; AR (Technical Review Team meeting; AR 0 ( ; AR 0 ( ; AR ( ; AR to -0 (FWS and BLM meeting on management issues in CCMA; AR ( ; AR (memorandum; AR ( ; AR ( ; AR 0 ( ; AR ( ; AR ( ; AR - ( and document re: recovery plan; AR 0 (participated in Technical Review Team meetings; AR ( ; AR (noting that BLM and FWS working to revise OHV compliance monitoring section of BO; AR - ( ; AR ( ; AR ( ; AR 00-0 (Memorandum; AR 00-0 (Memorandum; AR 000 (0 BA. / In addition, independent sources have confirmed that sediment discharge has decreased from to 0, thus refuting claims that OHV use continues to increase amounts of sediment damage in CCMA. See AR, Appendix H at - (reports compiled by the United States Geological Service ( USGS. Civ. No. :0-cv-0-JF

22 Case :0-cv-0-JF Document Filed 0//0 Page of. BLM Has Implemented Its Monitoring and Enforcement Program Next, Plaintiffs argue that BLM has not followed its warning policy or closure policy referred to in the BO. Pls Mem. at -. In the BO, FWS recognized that BLM proposed to implement monitoring and enforcement measures intended to protect evening-primrose occurrences: The Bureau will visit each occurrence of [evening-primrose] monthly from October to May and compare its current condition to that of the baseline developed in the summer of. [AR ]... The Bureau has proposed to use the following criteria as thresholds for closure of the CCMA to OHV use:. Resource damage: Ten incidents of damage to known protected Bureau-managed occurrences results in warnings being posted; incidents of damage to known protected occurrences results in closure of the area.... The area could be reopened once the likelihood of further damage is reduced to a level mutually agreeable to the Service and the Bureau... AR -. These provisions were developed by BLM and provided to FWS in an Implementation Plan during the consultation. AR -,. FWS noted that BLM s proposed monitoring and enforcement measures were developed by BLM to increase the level of protection afforded an occurrence or occurrences. AR -, (emphasis added; AR (FWS stating that [i]t s not the BO that require the warning be issued it was part of the plan that BLM submitted to us. Plaintiffs assume that, by proposing measures for the evening-primrose, BLM in effect divested itself of all managerial discretion. Nothing could be further from the truth. Rather, BLM proposed the monitoring and enforcement provisions during the consultation process and included them in the Implementation Plan submitted to FWS. AR 0,. Discussing the Implementation Plan, FWS stated: A hierarchical approach to plant protection is proposed in the Implementation Plan. This approach would not necessarily be followed, step by step, especially when risks to plants are too great to use less restrictive method of protection. Protective measures will rely largely on increasing the distance between the surface disturbing activity and the habitat or construction of barriers between the surface disturbing activity and the habitat to reduce the likelihood of surface disturbance on sensitive habitat. AR -0; AR -0 ( The Implementation Plan is a detailed document but is designed to be fluid with frequent revisions and additions. (emphasis added. FWS thus contemplated that BLM would issue warnings and close specific areas to OHV use if compliance by recreationists cannot be achieved and to close the entire CCMA if the Bureau is unable, for whatever reason, to provide the level of monitoring necessary to ensure that all occurrences of [the evening-primrose] are not being disturbed by OHV use. AR -. Furthermore, FWS expressly and unambiguously contemplated that the monitoring and enforcement triggers might change. AR -0 ( A year of monitoring may be necessary Civ. No. :0-cv-0-JF