ELR Citation: ELR 20640
No(s). Civ99-203 TUC ACM (D. Ariz. Apr 11, 2002)

The court holds that the U.S. Fish and Wildlife's (FWS') final biological opinion (BO) for the U.S. Army's continued operations at Fort Huachuca, Arizona, which concluded in a finding of no jeopardy to the endangered water umbel and willow flycatcher, is arbitrary and capricious and in violation of the Endangered Species Act (ESA). After a previous court case, the Army entered into consultation with FWS as required by ESA §7 due to the significant impact threat posed by development and uncontrolled groundwater pumping at the fort and the Army's responsibility for that threat. FWS issued a finding of jeopardy in relation to the Army's proposed activities in the area, and, thus, the draft BO contained a number of reasonable and prudent alternatives (RPAs) for the Army's activities. However, based on a memorandum of agreement (MOA) entered into by the Army and FWS that outlined mitigation measures to protect the two species rather than imposing mandatory RPAs, the final BO contained a no jeopardy finding.

The court first holds that the final BO is arbitrary, capricious, and not in accordance with law. It does not require the Army to balance its water use either on the base or in the subwatershed, to reduce reliance on groundwater pumping by any particular amount, or to achieve any measurable goals with respect to water recharge. Further, while the MOA includes a laundry list of possible mitigation measures related to water conservation and recharge that the Army may implement, it does not establish which projects have to be undertaken, when they must be taken, or what the conservation objectives are for the respective projects. Without such specificity, the mitigation measures in the final BO are merely suggestions. In addition, instead of including the necessary mitigation measures to address the long-term adverse impacts of the Army's proposed activities over the next 10 years, the final BO proposed to identify mitigation measures within three years. The FWS must assess the impacts of the Army's operations based on the best scientific evidence available today, not three years from now. In addition, the similarity between the provisions in the draft BO had to be modified because of a lack of authority to participate, implement, or fund the RPAs. The Army offers no evidence regarding their assertions and fails to explain why they may participate in a regional collaborative effort under the MOA but may not take the leadership role assigned to it pursuant to the RPAs.

The full text of this decision is available from ELR (16 pp., ELR Order No. L-501).

Counsel for Plaintiffs
Matt Kenna
Kenna & Hickcox
130 Meadow Rd., Durango CO 81301
(970) 385-6941

Counsel for Defendants
Mark R. Haag
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000