The Department of Energy could sell 47,000 acres in an area with five endangered species to Occidental Petroleum without consulting the Fish & Wildlife Service, the U.S. Ninth Circuit Court of Appeal has ruled.
The federal legislation authorizing the sale of land outside Bakersfield allowed the sale to go forward without an endangered species consultation, and without Occidental applying for a new "take" permit under the Endangered Species Act, the court held.
National Petroleum Reserve – 1, also called Elk Hills, lies about 25 miles south of Bakersfield. It is one of the nation's biggest oil fields, but it also contains at least four endangered animals and one endangered plant. Pursuant to Congressional direction, DOE has extracted oil from the field at a high rate since 1976. During that time, DOE consulted with FWS three times. Most recently FWS issued a "biological opinion" in November 1995. The FWS established several mitigation measures (but did not require participation in a habitat conservation plan) and issued an "incidental take" permit under section 10 of the ESA, which allows development that could otherwise threaten a species' survival.
In February 1996, Congress passed the National Defense Authorization Act (DAA) of 1996, which directed DOE to sell Elk Hills within two years. In October 1997, DOE accepted a purchase offer from Occidental.
The Tinoqui-Chalola Council of Kitanemuk and Yowlumne Tejon Indians, and the Southwest Center for Biological Diversity sued. They claimed DOE violated section 7 of the Endangered Species Act (16 U.S.C. 1531 et seq.) by not consulting with FWS prior to completing the sale, and by failing to ensure the sale would not jeopardize continued existence of endangered and threatened species. District Court Judge Oliver Wagner ruled the suit was moot because the sale had been completed. Alternatively, he determined that Congress waived Section 7 with regard to the Elk Hills sale.
The Southwest Center (but not the Indians) appealed. A unanimous three-judge panel of the Ninth Circuit ruled the case was not moot but held that Congress overrode Section 7 to allow the sale to proceed quickly. A key point for the court was the Defense Authorization Act's provision allowing the Secretary of Energy to transfer DOE's incidental take permit to the Elk Hills purchaser.
"Because the incidental take statement is generally nontransferable, this provision reflects Congress's intent to permit the purchaser to continue operations under the same terms and conditions applicable to the DOE without requiring the DOE to reinitiate consultation with the FWS and without requiring the purchaser to first obtain a permit pursuant to section 10 of the ESA," Judge David Thompson wrote for the court.
The court further noted that the DAA allowed the purchaser to operate under the incidental take permit only if its activities were identical to those of the DOE. Thus, DOE fulfilled its Section 7 obligations to protect the rare species because a change in activities would require Occidental to seek a new take permit, the court held.
Tinoqui-Chalola Council of Kitanemuk and Yowlumne Tejon Indians v. U.S. Department of Energy, No. 99-16384, 00 C.D.O.S. 280, filed November 20, 2000.
For Southwest Center for Biological Diversity: Daniel Rohlf, Portland, Oregon.
For DOE: Greer Goldman, Department of Justice, Washington, D.C.
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