Laserfiche WebLink
1 the term "take"to be defined in the"broadest possible manner to include every conceivable way" in <br /> 2 which a person could harm or kill fish or wildlife. S. Rep.No. 307,93d Cong., 1st Sess. 7(1973). <br /> 3 NMFS has defined"harm"to include"significant habitat modification or degradation which <br /> 4 actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, <br /> 5 including, breeding, spawning, rearing, migrating, feeding or sheltering." 50 C.F.R. § 222.102. <br /> 6 When a federal agency consults pursuant to § 7(a)(2),and the biological opinion either fmds no <br /> 7 jeopardy or fmds jeopardy but identifies an RPA,the opinion also will include a statement <br /> 8 concerning"incidental"take. This statement provides a limited exemption from § 9 liability if take <br /> 9 occurs in the course of implementing the no jeopardy action or RPA. Id. § 402.14(i). The failure to <br /> 10 comply with the conditions in a BiOp negates this exemption. See infra at 35-36. <br /> 11 B. To Comply With $ 7, Federal Agencies Must Either Implement RPAs as Written <br /> or Bear the Burden of Proving That Their Actions Avoid Jeopardy. <br /> 12 <br /> Although the RPA in a jeopardy BiOp outlines a path that will avoid jeopardy,departure <br /> 13 <br /> from the terms of an RPA is not,in itself,a violation of the ESA. See Tribal Village of Akutan, 869 <br /> 14 <br /> F.2d at 1193. As the Ninth Circuit has explained, an agency can depart from an RPA, and still meet <br /> 15 <br /> its§ 7(a)(2)obligation, if it takes"alternative, reasonably adequate steps to insure the continued <br /> 16 <br /> existence of any endangered or threatened species." Id. (emphasis added); see also Village of False <br /> 17 <br /> Pass, 565 F. Supp. at 1154("the decision whether or not to proceed with the project rests ultimately <br /> 18 <br /> with the Secretary. He must insure that agency actions are not likely to jeopardize the continued <br /> 19 <br /> existence of the species"). As a practical matter,however,the RPA in a jeopardy biological opinion <br /> 20 <br /> has a"virtually determinative effect"on agencies, because the burden of showing that another <br /> 21 <br /> course of action will avoid jeopardy is so high. As the U.S. Supreme Court has observed: <br /> 22 <br /> [T]he action agency must not only articulate its reasons for disagreement(which <br /> 23 ordinarily requires species and habitat investigations that are not within the action <br /> 24 agency's expertise), but that it runs a substantial risk if its (inexpert) reasons turn <br /> out to be wrong.... The action agency is technically free to disregard the <br /> 25 Biological Opinion and proceed with its proposed action, but it does so at its own <br /> peril.... <br /> 26 <br /> 27 Earthjustice <br /> PLAINTIFF'S MOTION FOR PRELIMINARY 705 Second Ave.,Suite 203 <br /> (Case No. 2:11-cv-02044-RSM -12- Seattle, WA 98/04 <br /> 28 INJUNCTION <br /> ) (206)343-7340 <br />