Center for Biological Diversity v. U.S. Office of Surface Mining Reclamation and Enforcement

Summary

The opinion addresses challenges under the Endangered Species Act to a 2020 Biological Opinion concerning the Office of Surface Mining Reclamation and Enforcement’s implementation and oversight of the Surface Mining Control and Reclamation Act. The plaintiffs argued that the Biological Opinion improperly relied on state regulators and failed to satisfy the Act’s consultation requirements. The court concluded that the Biological Opinion was arbitrary and capricious and set it aside.

Holdings

1. The 2020 Incidental Take Statement was arbitrary and capricious because it did not quantify or estimate the amount or extent of incidental take and therefore lacked a clear and enforceable take limit capable of triggering immediate reinitiation of consultation.
2. The 2020 Biological Opinion was arbitrary and capricious because it did not include a meaningful site-specific and species-specific effects analysis required by the ESA consultation regulations.
3. The Coordination and Dispute Resolution Processes could not displace the requirements of ESA Section 7 because they were less protective than the formal consultation process and delegated key consultation responsibilities to state regulators.
4. Vacatur was the appropriate remedy, but the court vacated and set aside only the portions of the 2020 Biological Opinion and Incidental Take Statement concerning OSMRE's oversight of primacy-state programs; the decision was prospective and did not call into question previously issued permits.

Questions Presented

1. Whether the 2020 Incidental Take Statement was arbitrary and capricious because it failed to quantify or estimate the amount or extent of permitted incidental take and failed to identify specific reasonable and prudent measures.
2. Whether the 2020 Biological Opinion was arbitrary and capricious because it lacked a meaningful site-specific and species-specific effects analysis.
3. Whether the Biological Opinion unlawfully relied on a technical-assistance and coordination process that was less protective than the consultation process required by ESA Section 7.
4. What remedy was appropriate for the unlawful portions of the Biological Opinion and Incidental Take Statement.

Disposition

vacated