2012/01/25 Council Agenda Packet

1 agencies." Id. at 185. 2 Section 7 of the ESA imposes a strict substantive duty on federal agencies to"ensure"that 3 their actions do not cause jeopardy to endangered or threatened species. 16 U.S.C. § 1536(a)(2). 4 Jeopardy is defined as any action that"reduce[s] appreciably the likelihood of both the survival and 5 recovery of a listed species in the wild." 50 C.F.R. § 402.02; see also id. (adverse modification 6 defined as"direct or indirect alteration that appreciably diminishes the value of the critical habitat 7 for both the survival and recovery of a listed species.");National Wildlife Fed. v.National Marine 8 Fisheries Service, 524 F.2d 917, 931-33 (9th Cir. 2008) (discussing importance of"recovery" in § 7 9 standard). Section 7 also establishes an interagency consultation process to assist agencies in 10 complying with this substantive duty. 50 C.F.R. §§402.14(a),(b). During the consultation process, 11 the expert wildlife agency(NMFS for anadromous and marine species) must formulate a"biological 12 opinion"as to whether the action under review will cause jeopardy. 50 C.F.R. § 402.14(g). If the 13 agency's opinion is that jeopardy will occur, it must formulate,if possible, a"reasonable and 14 prudent alternative"("RPA")to the proposed action that will avoid jeopardy. Id. §§ 402.14(g), (h). 15 An RPA must be consistent with the intended purpose of the proposed action and within the action 16 agency's authority,that is economically and technologically feasible. Id. § 402.03. If the agency 17 cannot identify an RPA or if the action agency is unwilling to implement it,the proposed action is 18 prohibited without authorization from a cabinet-level committee. 16 U.S.C. § 1536(e). 19 A separate provision, § 9 of the ESA, strictly prohibits activities that"take"endangered 20 species. 16 U.S.C. § 1538(a)(1)(B). While § 7 imposes a duty on federal agencies, § 9 applies to 21 "any person." Id. The"take"prohibition is typically extended to threatened species by regulation. 22 Id. § 1533(d). The ESA defines"take"as"to harass, harm,pursue, hunt,shoot,wound, kill,trap, 23 capture,or collect,or to attempt to engage in any such conduct." Id. § 1532(19). Congress intended 24 25 'The ESA defines two categories of imperiled species. "Endangered" species are those that are in danger of extinction in all or a significant portion of their range. 16 U.S.C. § 1532. "Threatened"species are 26 those that are likely to become an endangered species in the foreseeable future. Id. 27 Earthjustice PLAINTIFF'S MOTION FOR PRELIMINARY 705 Second Ave.,Suite 203 Seatt98104 28 INJUNCTION (Case No. 2:11-cv-02044-RSM) -11- (20 )3 3 4O (206)343-7340