## Facts

- Federal agencies approved the Ruby Pipeline Project, a 42-inch interstate natural gas pipeline extending about 678 miles from Wyoming to Oregon.
- The authorized right-of-way covered roughly 2,291 acres of federal land and crossed 209 rivers and streams.
- The waterways supported federally listed threatened and endangered fish species and designated critical habitat.
- The U.S. Fish and Wildlife Service (FWS) issued an Endangered Species Act (ESA) § 7 Biological Opinion concluding the project would “adversely affect” nine listed fish species and five critical habitats, but would not jeopardize the species’ continued existence or destroy/adversely modify critical habitat.
- The Bureau of Land Management (BLM) relied on the Biological Opinion and related conservation and mitigation measures in granting the right-of-way and associated approvals.
- Conservation organizations, tribes, and local governmental entities challenged both the Biological Opinion and BLM’s approvals, arguing the ESA analysis and mitigation framework were insufficiently specific, enforceable, or certain to occur.

## Issues

1. Whether FWS’s Biological Opinion complied with ESA § 7 and the APA, including whether its analysis of effects on listed fish and critical habitat was adequately supported.
2. Whether FWS and BLM unlawfully relied on future-facing or programmatic conservation and mitigation measures that were allegedly uncertain or not binding.
3. Whether BLM’s right-of-way authorization and related approvals were arbitrary and capricious because they depended on an allegedly defective Biological Opinion and mitigation scheme.

## Decision

- The Ninth Circuit largely denied the petitions for review and upheld the challenged agency actions.
- The court held that FWS’s no-jeopardy and no-adverse-modification conclusions fell within the range of reasonable scientific judgment on the administrative record.
- The court concluded that the conservation and mitigation measures relied upon were not merely aspirational, because they were tied to the project through identified commitments, monitoring, and implementation mechanisms sufficient for ESA analysis.
- Because the Biological Opinion was not arbitrary or capricious on the challenges presented, BLM’s reliance on it in authorizing the project was permissible under the APA.

## Legal Principles

- ESA § 7 Biological Opinions are reviewed under the APA’s “arbitrary and capricious” standard; courts give substantial deference to agencies’ technical and scientific judgments when the agency considered relevant factors and offered a reasoned explanation.
- Mitigation or conservation measures may be used to support ESA no-jeopardy/no-adverse-modification determinations when they are sufficiently specific, reasonably certain to occur, and supported by evidence of expected effectiveness; agencies may not base ESA compliance on speculative or voluntary future actions.
- An action agency may rely on a facially valid Biological Opinion in meeting ESA obligations; if the Opinion withstands APA review, reliance on it typically is not arbitrary or capricious.

## Conclusion

The Ninth Circuit upheld federal approval of the Ruby Pipeline Project, concluding that FWS reasonably supported its ESA determinations and that BLM could rely on the Biological Opinion and associated, sufficiently defined conservation and mitigation commitments under deferential APA review.


Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., 698 F.3d 1101 (9th Cir. 2012)