ELR Citation: ELR 20572
No(s). 88-1650 (9th Cir. Mar 19, 1990)

The court holds that the Navy's irrigation practices at a Nevada air base that allegedly harm an endangered species of fish do not violate the Endangered Species Act (ESA) or the National Environmental Policy Act (NEPA). To reduce dust storms, poor visibility, and damage to aircraft engines, the Navy created buffer zones containing irrigated vegetation around the air base runways. Local farmers lease the buffer zone lands and attendant water rights from the Navy. The irrigation water is diverted from a tributary of Pyramid Lake, the exclusive habitat of the endangered cui-ui fish. The court first holds that the Navy properly relied on the Fish and Wildlife Service's biological opinions in making its determination under ESA §7(a)(2) that its leasing program would not be likely to jeopardize the existence of the cui-ui. The court holds that the Navy's refusal to adopt an alternative to its leasing program, which would require less water while continuing to enhance aviation safety, did not violate the Navy's obligation under ESA §7(a)(1) to develop programs to conserve endangered species. The alternative would produce insignificant conservation of water crucial to the cui-ui and the duty imposed under ESA §7(a)(1) does not require adoption of every insignificant conservation measure. The court next holds that the Navy's lease program does not amount to a taking under ESA §9(a)(1), since the evidence does not demonstrate that the Navy has harmed the cui-ui. Finally, the court holds that the Navy's lease program fits within a Navy categorical exclusion under NEPA.

[Briefs from the 9th Circuit are digested at ELR PEND. LIT. 66073.]

Counsel for Plaintiff-Appellant
Robert C. Pelcyger
Fredericks & Pelcyger
1881 Ninth St., Ste. 216, Boulder CO 80302
(303) 443-1683

Counsel for Defendants-Appellees
Fred R. Disheroon, Robert L. Klarquist, Elizabeth Ann Peterson
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2731

O'Scannlain (before Tang and Canby, JJ.)