2012/01/25 Council Agenda Packet

1 In contrast,courts have upheld agency decisions to depart from RPAs only in narrow 2 circumstances. In Tribal Village of Akutan, 869 F.2d at 1193-94,the Ninth Circuit addressed an 3 agency's decision to not implement some RPA measures in a BiOp for a multi-stage oil leasing sale. 4 The court first noted that since the RPA was phrased in"general, rather than specific terms," it was 5 not at all clear that the RPA had not been fully implemented. Id. at 1194. Second,the Court 6 emphasized the step-wise nature of oil-leasing decisions and the fact that the specific decisions 7 under review would not themselves have significant impacts, since the more harmful actions- 8 along with additional environmental review—would occur later in the process. Id. ('`We once again 9 note that the risks to endangered species during the lease sale stage are virtually nonexistent. Only 10 limited preliminary activities are permitted during this stage."). Finally, the Court found that while 11 the Secretary may have decided not to adopt some RPA elements, he had"adopted other mitigating 12 measures"that appeared to have satisfied NMFS. Id. In light of all these factors,the Ninth Circuit 13 found that the agency had complied with its duty to"insure"against jeopardy. Id. at 1195; see also 14 Village of False Pass, 733 F.2d at 611-12 (upholding agency's § 7 compliance where RPA 15 provisions were general and where on-the-ground protections could be deferred until later stages). 16 C. By Not Implementing the RPA or Any Alternative that It Has Demonstrated Will Avoid Jeopardy, FEMA is Violating $ 7 of the ESA. 17 In light of the NFIP's pervasive contribution to the decline of salmon and orcas in Puget 18 Sound,NMFS outlined a comprehensive RPA with multiple,specific elements that,when 19 implemented together,would avoid jeopardy. FEMA has not made those changes to the NFIP,nor 20 has it implemented any alternative actions that eliminate jeopardy. Instead, seven years after this 21 Court found FEMA in violation of the ESA,and three years after NMFS found the NFIP was 22 causing jeopardy,FEMA continues to implement the NFIP mostly unchanged. Its continued 23 implementation of the NFIP in the face of the FEMA BiOp violates § 7 of the ESA.9 24 25 9 This Court has already found NWF has standing to sue FEMA regarding ESA compliance for the NFIP. NWF v. FEMA,345 F. Supp.2d at 1166; Salazar v. Buono, 130 S. Ct. 1803, 1814(2010)(holding that 26 government cannot challenge standing in second lawsuit where it had not appealed finding of standing in 27 Earthjustice PLAINTIFF'S MOTION FOR PRELIMINARY 705 Second Ave.,Suite 103 Seattle, WA 98104 28 INJUNCTION(Case No. 2:11-cv-02044-RSM) -14- (206)343-7340