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The court held that the Biological Opinion was arbitrary and capricious because it relied on the beneficial effects of the Conservation Action Plan which was not incorporated as part of the proposed project and because the Fish and Wildlife Services acted unreasonably when it failed to examine the impact from groundwater withdrawals which is a “relevant factor” in the jeopardy determination of endangered species.

The Ruby Pipeline project involves the construction of a natural gas pipeline extending from Wyoming to Oregon covering approximately 2,291 acres of federal land and crossing 209 rivers. The Biological Opinion formulated by the Fish and Wildlife Services (“FWS”) said that the project “would adversely affect” endangered and threatened fish species living in those rivers and the designated critical habitats. However, the opinion concluded that the project “would not jeopardize these species or adversely modify their critical habitat.” The Bureau of Land Management (“BLM”) relied on this conclusion when it issued its Record of Decision. The Center for Biological Diversity raises challenges to the project under the Endangered Species Act, specifically, that the Biological Opinion and the Incidental Take Statement were “arbitrary and capricious.” The Ninth Circuit held that the Biological Opinion is invalid because it relied on the beneficial effects of the Conservation Action Plan (“CAP”) for its conclusion. The CAP did not meet the criteria for “cumulative effects” so it should not have been considered in the Biological Opinion’s jeopardy decision unless it was incorporated as part of the proposed project and thus subject to enforcement provisions of the Endangered Species Act. The court also held that the Biological Opinion was arbitrary and capricious because FWS acted unreasonably when it failed to examine the impact from groundwater withdrawals which is a “relevant factor” in the jeopardy determination of endangered species. The Court further held that the FWS acted reasonably in relying on a report from 2004 and that the Incidental Take Statement that did not place a limit on eggs or fry was reasonable as well. Lastly, the court held that the BLM violated is substantive duty to ensure that the authorization of the project would not jeopardize endangered species by relying on the flawed Biological Opinion. VACATED and REMANDED.