ELR Citation: ELR 20145
No(s). s. 03-16884, -16887 (9th Cir. Jul 12, 2005)

The court held that the U.S. Army Corps of Engineers' (the Corps) decisions to forego the Endangered Species Act §7 consultations based on its determination that two residential developments in Arizona would have no effect on the cactus ferruginous pygmy-owl was not arbitrary and capricious. Federal agencies need only initiate consultation with the U.S. Fish and Wildlife Service (FWS) after determining that its actions will affect a listed species or its habitat. Although the FWS can request the action agency to enter into formal consultation, it cannot force the action agency to enter into consultation after such a request. And the Corps' no-effect determinations rested on the firm foundation that no pygmy-owls had been found to live within either project area.