## Facts

- The southwestern willow flycatcher is a migratory songbird listed as endangered under the Endangered Species Act (ESA).
- The flycatcher nested and bred in dense cottonwood–willow habitat that developed in the Lake Mead delta, an area exposed when Lake Mead’s water level was low.
- Lake Mead is formed by Hoover Dam on the Lower Colorado River, which the United States Bureau of Reclamation (Reclamation) operates as part of a larger set of Lower Colorado River projects.
- Reclamation’s operation of Hoover Dam affects the growth and maintenance of cottonwood–willow vegetation in the delta by controlling Lake Mead’s level and fluctuations.
- In 1995, Reclamation initiated ESA § 7 consultation with the U.S. Fish and Wildlife Service (FWS) regarding how five years of project operations would affect the flycatcher.
- In 1997, FWS issued a biological opinion (BO) concluding Reclamation’s proposed operations would jeopardize the flycatcher and proposed a reasonable and prudent alternative (RPA) with short- and long-term elements, including acquiring and permanently protecting the flycatcher’s occupied habitat at the Lake Mead delta.
- The Secretary of the Interior responded that Reclamation could not be required to preserve the Lake Mead delta habitat because, under the governing statutory and contractual framework for Colorado River operations, Reclamation lacked discretion to operate Hoover Dam to maintain Lake Mead levels for that purpose.
- FWS then issued a revised, final BO and RPA that removed the Lake Mead delta-preservation component and instead required Reclamation to acquire and protect substitute flycatcher habitat at other locations near the delta along the Lower Colorado River.
- Southwest Center for Biological Diversity sued under the Administrative Procedure Act (APA), arguing the final BO/RPA was arbitrary, capricious, and contrary to the ESA because it rested on an unlawful view of Reclamation’s discretion and failed to require protection of the existing delta habitat.
- The district court granted summary judgment for the federal defendants, and Southwest Center appealed.

## Issues

1. Whether FWS acted arbitrarily, capriciously, or contrary to law under the APA by issuing a final BO and RPA that omitted Lake Mead delta-preservation measures after concluding Reclamation lacked legal discretion to manage Lake Mead levels for that purpose.
2. Whether ESA § 7(a)(2) requires an RPA to include measures beyond the action agency’s statutory and contractual authority, or instead limits consultation duties to actions where the agency retains discretionary involvement or control.
3. Whether the final RPA’s substitute-habitat acquisition requirements were a lawful means of avoiding jeopardy within the bounds of Reclamation’s authority.

## Decision

- The Ninth Circuit affirmed the district court’s summary judgment for the federal defendants.
- The court held that ESA § 7 duties are limited to the scope of the action agency’s discretion; where governing law removes discretion to act for the benefit of a listed species, the ESA does not supply it.
- The court concluded FWS reasonably crafted the final RPA to fit within Reclamation’s legal authority and did not act arbitrarily or capriciously by removing the Lake Mead delta-protection requirement and substituting off-site habitat acquisition and protection measures.

## Legal Principles

- APA review of agency action is limited; a court will set aside agency action only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
- ESA § 7(a)(2) applies to federal “actions” only to the extent the action agency retains discretionary federal involvement or control to act in a manner that can benefit listed species.
- When statutes and binding obligations direct an agency’s operation of a federal project and leave no room to alter the project for species protection in the manner sought, ESA § 7 does not require changes outside that legal authority.
- A reasonable and prudent alternative in a jeopardy BO must (a) avoid jeopardy and (b) be within the action agency’s authority and jurisdiction; FWS may select an RPA that meets these conditions even if it does not require protection of the particular habitat preferred by plaintiffs.

## Conclusion

The Ninth Circuit upheld FWS’s final biological opinion and revised RPA for Hoover Dam operations, ruling that ESA § 7 consultation measures must stay within Reclamation’s legally available discretion under the controlling Colorado River project framework; because Reclamation lacked authority to manage Lake Mead levels solely to preserve the Lake Mead delta habitat, FWS did not act unlawfully or arbitrarily by removing that requirement and requiring acquisition and protection of substitute flycatcher habitat elsewhere.


Southwest Center for Biological Diversity v. United States Bureau of Reclamation, 143 F.3d 515 (1998)