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1 Bennett v. Spear, 520 U.S. 154, 169-70 (1997)(emphasis added); 16 U.S.C. § 1536(a)(2)(requiring <br /> 2 use of"best scientific and commercial data available" in complying with § 7); see also Village of <br /> 3 False Pass, 565 F. Supp. at 1 160 ("The biological opinion is accorded substantial weight as <br /> 4 evidence of the Secretary's compliance with the [ESA]"). <br /> 5 Accordingly, where an agency departs from an RPA, it bears a heavy burden of justifying its <br /> 6 actions in light of the ESA's strict prohibitions. Bennett, 520 U.S. at 169-70 ("A federal agency <br /> 7 that chooses to deviate from the recommendations contained in a biological opinion bears the <br /> 8 burden of`articulating in its administrative record its reasons for disagreeing with the conclusions of <br /> 9 a biological opinion"),citing 51 Fed. Reg. 19,926, 19,956(June 3, 1986); Sierra Club v. Marsh, <br /> 10 816 F.2d 1376, 1389 (9th Cir. 1987) ("Placing the burden on the acting agency to prove the action is <br /> 11 non jeopardizing is consistent with the purpose of the ESA and what we have termed its <br /> 12 `institutionalized caution mandate'.");Defenders of Wildlife,454 F. Supp. 2d at 1099. <br /> 13 Courts have applied this precautionary mandate strictly. In Village of False Pass v. Watt, <br /> 14 565 F. Supp. 2d 1123 (D. Alas. 1983), for example,the district court found that the Secretary <br /> 15 violated the ESA by failing to fully comply with an RPA element involving noise pollution from <br /> 16 seismic activities associated with oil exploration. While the RPA called for preliminary seismic <br /> 17 activities to only be conducted in a manner that didn't disturb whales,the Secretary ordered lessees <br /> 18 simply to provide advance notice of such activities. The Court ruled that such an approach fell short <br /> 19 of"insuring"against jeopardy, as it"insures only that the problem will be given attention at a later <br /> 20 date." Id. at 1162-63. hi the absence of an adequate justification for this departure from the RPA, <br /> 21 the Court ruled the secretary in violation of§ 7(a)(2). Id. at 1165;8 see also Sierra Club v. Marsh, <br /> 22 816 F.2d at 1386(holding agency violated ESA where it failed to implement mitigation actions <br /> 23 required to avoid jeopardy). <br /> 24 <br /> 25 8 The Ninth Circuit found this element of the District Court's decision,appealed by the government, moot <br /> because it had since been rectified. With respect to other RPA elements,the district court upheld the <br /> 26 agency's departures from the RPA, and the Ninth Circuit affirmed. <br /> 27 Earthjustice <br /> PLAINTIFF'S MOTION FOR PRELIMINARY 705 Second Ave.,Suite 203 <br /> Seattle, WA 98104 <br /> 28 INJUNCTION(Case No. 2:11-cv-02044-RSM) -13- <br /> (206)343-7340 <br />