ELR Citation: 41 ELR 20204
No(s). 07-484 (D. Ariz. May 28, 2011)

A district court held that the FWS' biological opinion (BiOp) for the U.S. Army's proposed ongoing and future operations at Fort Huachuca—a major military installation in southeastern Arizona—violates the ESA and is arbitrary and capricious. The BiOp concluded that the operations will not jeopardize the Huachuca water umbel or the southwestern willow flycatcher or adversely modify their critical habitats. But the BiOp fails to examine the effects of Fort Huachuca's operations on recovery of the species and their critical habitat and fails to provide a rational connection between findings in the BiOp and the record and its ultimate conclusion that the operations will not affect recovery. The BiOp relies on mitigation measures that are not reasonably specific nor reasonably certain to occur. The BiOp also contains conclusions that are not supported by the record or the best scientific or commercial data available, and it fails to articulate a rational connection between the facts found and the conclusion made. And because the FWS committed legal error in its BiOp, the Army's reliance on a legally flawed BiOp is arbitrary and capricious in violation of ESA §7.