ESWR Update: July 13, 2005

NINTH CIRCUIT AFFIRMS DISTRICT COURT JUDGMENT
UPHOLDING CORPS ON TWO ARIZONA DEVELOPMENTS

The Ninth Circuit has affirmed two district court decisions from Arizona that upheld the Army Corps of Engineers' lack of consultation with FWS on two wetlands permits for large-scale developments in Arizona ( Defenders of Wildlife v. Flowers, 03-16884, 9th Cir.; 02-195-CKJ, D. Ariz.).
In both situations, the Fish and Wildlife Service said the Corps should have undergone formal ESA consultation that took into account the effects on the endangered cactus ferruginous pygmy-owl. The Corps, however, said the developments would not affect pygmy-owls.
One of the developments is the 440-acre Entrada del Oro, in Pinal County. The other is the 598-acre Continental Reserve, in the town of Marana.
In its 2-1 decision July 12, the court made some observations about the continued listing of the Arizona DPS of the bird, in light of its decision in August 2003 that the service had failed to show that the loss of the Arizona population would create a significant gap in the range of the taxon ( Nat'l Ass'n of Home Builders v. Norton, 340 F.3d 835 (2003) ).
"Our decision puts in doubt the status of the Arizona pygmy-owl as a significant part of its taxon and would seem to require its delisting as a DPS," the court said in a footnote.
Circuit Judge John T. Noonan wrote the decision. Noonan also was on the panel that decided the DPS case.
U.S. District Judge Susan Bolton has kept the owl on the endangered list, however. After the Ninth Circuit sent the case back to her, she remanded the matter to FWS in June 2004 without setting a timeline for a new decision. Despite speculation since then that the service will attempt to delist the bird, FWS has not formally attempted to do so.
In its latest decision, the Ninth Circuit said it could rely on the NAHB decision to affirm the judgment of the district court, but "[o]ut of an abundance of caution, we review the district court's decision de novo and hold that the decision rested on the firm foundation that no pygmy-owls had been found to live within either project area."
Speaking of the listing case, the Ninth Circuit said, "The [district] court held that if it vacated the rule 'the twenty to forty birds comprising the Arizona pygmy-owl population would be entirely without protection under the ESA during the remand period.' The court did not note the interest of the victorious plaintiffs in having the listing declared void."
The other judge in the majority was Pamela Ann Rymer. Dissenting was Circuit Judge Warren J. Ferguson, who said the administrative record clearly showed that the Corps should have formally consulted with the service on both projects.
Ferguson also noted that no matter what the majority said about the import of the NAHB decision, the fact is that the pygmy-owl remains listed. "Our decision in [ NAHB] ... has no bearing on the case before us," he said.

http://www.eswr.com/605/flowersop9.pdf    Opinion
http://www.eswr.com/903    Go here and scroll down for district court decisions
http://www.eswr.com/903/powlop981903.pdf   DPS opinion