United States District Court, E.D. California
LAWRENCE K. KARLTON, Judge.
Plaintiff Ridge Top Ranch, LLC has sued defendants U.S. Fish and Wildlife Service ("FWS, " or the "Service"), and FWS's Director, Daniel M. Ashe, alleging violations of the Endangered Species Act ("ESA") and the Administrative Procedure Act ("APA"). Ridge Top's motion for a preliminary injunction came on for hearing on February 21, 2014. Having considered the parties' arguments and their filings herein, the court will deny the motion, for the reasons set forth below.
A. Statutory Background
The court will begin by noting relevant aspects of the ESA and its implementing regulations, in order to provide context for the discussion that follows.
In enacting the ESA, "Congress' intent [was] to provide comprehensive protection for endangered and threatened species." Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or. , 515 U.S. 687, 698 (1995). An "endangered" species is "in danger of extinction throughout all or a significant portion of its range...." 16 U.S.C. § 1532(6). A "threatened" species is "likely to become an endangered species within the foreseeable future...." 16 U.S.C. § 1532(20). "[T]he ESA was enacted not merely to forestall the extinction of species ( i.e., promote... species survival), but to allow a species to recover to the point where it may be delisted." Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv. , 378 F.3d 1059, 1070 (9th Cir. 2004), amended by 387 F.3d 968 (9th Cir. 2004). "The plain intent of Congress in enacting [the ESA] was to halt and reverse the trend toward species extinction, whatever the cost." TVA v. Hill , 437 U.S. 153, 184 (1978).
ESA Section 7 imposes an affirmative duty on federal agencies to "insure that any action authorized, funded, or carried out by such 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 [critical] habitat of such species...." 16 U.S.C. § 1536(a)(2). In order to ensure compliance with this requirement, agencies, before beginning designated actions (such as "major construction activities") must prepare a biological assessment to determine whether listed species or critical habitat "are likely to be adversely affected" by the proposed action. 50 C.F.R. § 402.12. If so, the agency must formally consult with the appropriate consulting agency - here, FWS - before undertaking the action. 50 C.F.R. § 402.14.
Formal consultation concludes with FWS's issuance of a biological opinion that addresses "whether the action, taken together with cumulative effects, is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat." 50 C.F.R. § 402.14(g)(4). If jeopardy or adverse modification is likely, "then any take resulting from the proposed action is subject to section 9 liability (unless that take is authorized by other provisions of the ESA not relevant here)." Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt. , 698 F.3d 1101, 1107 (9th Cir. 2012). Although an agency is "technically free to disregard the Biological Opinion and proceed with its proposed action... it does so at its own peril (and that of its employees), for any person' who knowingly takes' [a member of] an endangered or threatened species is subject to substantial civil and criminal penalties, including imprisonment." Bennett v. Spear , 520 U.S. 154, 170 (1997). Due to the stringency of these penalties, the Supreme Court characterizes the effect of biological opinions as "virtually determinative" of agency compliance. Id.
On the other hand, if FWS concludes that no species jeopardy or adverse modification of critical habitat will occur, but that the project is nevertheless likely to result in the "incidental take" of species members, it must issue an incidental take statement along with the biological opinion. 50 C.F.R. § 402.14(i). The incidental take statement must: "(1) specify the impact of the incidental taking on the species; (2) specify the reasonable and prudent measures' that the FWS considers necessary or appropriate to minimize such impact; (3) set forth terms and conditions' with which the action agency must comply to implement the reasonable and prudent measures (including, but not limited to, reporting requirements); and (4) specify the procedures to be used to handle or dispose of any animals actually taken." Or. Natural Res. Def. Council v. Allen , 476 F.3d 1031, 1034 (9th Cir. 2007) (quoting 16 U.S.C. § 1536(b)(4) and 50 C.F.R. § 402.14(i)). The incidental take statement "functions as a safe harbor provision immunizing persons from Section 9 liability and penalties for takings committed during activities that are otherwise lawful and in compliance with its terms and conditions." Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife , 273 F.3d 1229, 1239 (9th Cir. 2001). Nevertheless, the agency is under an ongoing obligation to report to FWS on "the progress of the action and its impact on the species, " and if "during the course of the action the amount or extent of incidental taking... is exceeded, " the agency "must reinitiate consultation immediately." 50 C.F.R. § 402.14 (i) (3), (4).
The agency must also reinitiate consultation if one of these four conditions obtains:
(a) If the amount or extent of taking specified in the incidental take statement is exceeded;
(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; or
(d) If a new species is listed or critical habitat designated that may be affected by the identified action.
50 C.F.R. § 402.16. "When reinitiation of consultation is required, the original biological opinion loses its validity, as does its accompanying incidental take statement, which then no longer shields the action agency from penalties for takings." Ctr. for Biological Diversity , 698 F.3d at 1108.
With this overview in mind, the court turns to the facts presented herein.
B. Factual & Procedural Background
1. The Interchange Project
This case arises by virtue of a proposed highway construction project in Solano County, described as follows:
The Solano Transportation Authority (STA) is a Joint Powers Authority with members including the cities of Benicia, Dixon, Fairfield, Rio Vista, Suisun City, Vacaville, and Vallejo, and the County of Solano....
I-80 is a major transcontinental highway route, typically six to eight lanes. The corridor within Solano County functions as an essential commuter route within the San Francisco Bay Area....
The existing I-80/I-680/SR 12 interchange complex was constructed approximately 40 years ago, and current traffic demands have resulted in extreme congestion, delays, substantial traffic diversion, and unacceptable levels of service. The proposed improvements are designed to reduce congestion, accommodate anticipated increases in traffic, and address safety concerns.
Caltrans, in cooperation with the STA and the Federal Highway Administration, proposes to improve the interchanges... in the vicinity of City of Fairfield.... (Request for Proposals 1, Exh. B to Declaration of Timothy G. Roberts ("Roberts Decl."), ECF No. 10-3.)
In connection with this effort, termed the I-80/I-680/SR-12 Interchange - Phase 1 Project ("Interchange Project"), the California Department of Transportation ("Caltrans") initiated consultation with FWS regarding the effects of the Interchange Project on a number of threatened and endangered species, including the callippe silverspot butterfly and the California red-legged frog.
2. The Biological Opinion and the accompanying Incidental Take Statement
At the conclusion of the consultation with Caltrans, FWS issued an initial Biological Opinion, dated April 16, 2012, specifying measures "intended to avoid and minimize direct and indirect effects to California red-legged frog, " including the provision of appropriate habitat compensation. (Biological Opinion 25, Exh. C. to Roberts Decl., ECF No. 10-3.)
The Biological Opinion identifies three "critical habitat units" for the California red-legged frog which are affected by the Interchange Project, termed "SOL-1, " "SOL-2, " and "SOL-3." (Each of these habitat units comprises several thousand acres.) According to the Biological Opinion, "SOL-2 is considered essential for the California red-legged frog because it provides connectivity from Napa County south to unit SOL-3.... The connectivity function of the three  units is dependent upon maintaining red-legged frog passage across I-80 and Jameson Canyon Road...." (Biological Opinion 41-42.)
Defendants highlight a portion of the Biological Opinion which describes a pond (the "Mangels' pond") which is "likely the primary population source [for California red-legged frog] for the western portion of the SOL-2 critical habitat unit." (Biological Opinion 53.) The Biological Opinion expresses the following concerns regarding the Interchange Project's effect on this habitat:
"Isolation of this breeding pond from the remainder of the surrounding habitat will reduce the size and distribution of California red-legged frogs in the SOL-2 unit by severing or limiting connectivity of what is now largely contiguous habitat north and south of the proposed Business Center Drive Extension." (Id. 53.)
"With the addition of the [proposed construction], frogs and other wildlife will be limited to 35 feet of crossing opportunities along the 0.79 mile Business Center Drive Extension.... Construction of this barrier will reduce dispersal to 0.8 percent of the original topography that was available for movement. This adverse effect could be partially minimized if one or more breeding ponds would be constructed north of the Business Center Drive Extension." (Id.)
"The development associated with the proposed Business Center Drive Extension will further reduce available foraging and dispersal habitat for California red-legged frogs that breed in Mangels' pond and disperse widely to the north and west. [Proposed development] is likely to significantly reduce the size and distribution of frogs that occupy the area from Mangels' pond northward into Napa County as animals will become less successful at reaching Mangels' pond to breed and disperse north as juveniles and lose the ability to live in the area south of the road extension as habitat is lost to development." (Id. 53-54.)
The Biological Opinion then identifies two "keys" to minimizing these adverse effects:
1. "Easements south of the proposed Business Center Drive Extension that connect Mangels' pond and the Business Center Drive Extension underpasses, " and
2. "Easements north of the Business Center Drive Extension." (Biological Opinion 54.)
The relevant portion of the Biological Opinion concludes with the following: "Caltrans' proposal to compensate for permanent and temporal habitat loss with in-perpetuity preservation of 245.1 acres of California red-legged frog habitat in Solano County will likely offset the adverse effects of the project and provide a benefit for the species. This habitat will be permanently protected and a management plan will be implemented which will aid the species." (Id.)
For the purposes of this motion, the most salient portion of the Biological Opinion specifies measures "intended to avoid and minimize direct and indirect effects to California red-legged frog, " including the provision of appropriate habitat ...