ELR Citation: 51 ELR 20040
No(s). 20-60319 (5th Cir. Mar 10, 2021)

The Fifth Circuit denied a petition to review FWS' issuance of a biological opinion (BiOp) and incidental take statement (ITS) authorizing the harm or harassment of endangered ocelot or jaguarundi in connection with construction and operation of a liquefied natural gas pipeline in South Texas. Environmental groups argued the ITS failed to set a clear take limit, failed to set an enforceable trigger for reinitiation of formal consultation, and failed to include terms and conditions implementing certain reasonable and prudent measures designed to mitigate the effects of the pipeline on the cats. The court found the ITS clearly specified the anticipated take of one ocelot or jaguarundi and set a clear and enforceable trigger for reinitiation, and that the Service's failure to include reasonable and prudent mitigation measures word-for-word did not render the ITS arbitrary or capricious. The groups also argued the BiOp's no-jeopardy conclusion was arbitrary and capricious. The court found that FWS considered all it was required to consider except for what it was specifically allowed to omit, identified reasons underlying its conclusion that the cats' continued existence would not be jeopardized, and articulated a rational connection between these reasons and that conclusion. It therefore denied the groups' petition for review.