Flowers

FACTS

The cactus ferruginous pygmy-owl, the bird at the center of our case, is described in National Ass’n of Home Builders v. Norton, 340 F.3d 835, 838 (9th Cir. 2003), where a descrip- tion of its habitat is also set out. In that case, we also described how the Service came to designate the Arizona pygmy-owl as a discrete population segment (DPS), distinct from the pygmy-owls in Texas and in Mexico. We held that the Service had not demonstrated a rational basis in the listing rule for its finding that the Arizona pygmy-owl was a signifi- 8106 DEFENDERS OF WILDLIFE v. FLOWERS cant part of the taxon to which it belongs and therefore the Service had acted arbitrarily and capriciously in designating the Arizona pygmy-owl as a DPS. Id. at 852.

The Continental Reserve Permit. In December 1999, the Corps received a permit application under the Clean Water Act, 33 U.S.C. § 1344 (a Section 404 permit application), for the Continental Reserve project, a 598-acre property being developed in the town of Marana, Arizona. Continental Reserve is a master-planned community with single-family residences, a 9-acre community park, a 10-acre elementary school site, and large areas of…

dissenting:

In tersely affirming the District Court’s judgment, the majority ignores the plain language of the Endangered Species Act’s (“ESA”) implementing regulations, trivializes the vital process of inter-agency consultation, and ultimately drives closer to extinction the few existing Arizona pygmy-owls. The Army Corps of Engineers’ (the “Corps”) decision to forego consultation with the Fish and Wildlife Service (the “Service”) was both arbitrary and capricious given the Service’s persistent and persuasive objections to the two real estate developments. at issue. I must therefore dissent.

I.

The cactus ferruginous pygmy-owl (the “pygmy-owl”), a small bird, is about 6.75 inches tall and weighs between 2.2 and 2.6 ounces on average. Determination of Endangered Status for the Cactus Ferruginous Pygmy-Owl in Arizona, 62 Fed.Reg. 10730, 10730 (Mar. 10, 1997). “[It] is one of four subspecies of the ferruginous pygmy-owl” whose range extends “from lowland central Arizona south through western Mexico, to the States of Colima and Michoacan, and from southern Texas south through the Mexican States of Tamaulipas and Nuevo Leon.” Id. Pygmy-owls are considered non-migratory throughout…

Opinion by Judge NOONAN. Dissent by Judge FERGUSON.

Defenders of Wildlife and the Center for Biological Diversity (collectively Defenders) appeal the grant of summary judgment to the Army Corps of Engineers (the Corps). Defenders challenged the decision of the Corps not to consult with the Fish and Wildlife Service (the Service) on the effect on the Arizona cactus ferruginous pygmy-owl of two developments in Arizona. The district court found that the Corps’ ■ determination that the developments would have no effect on the pygmy owl was not arbitrary or capricious. We affirm its judgment.

FACTS

The cactus ferruginous pygmy-owl, the bird at the center of our case, is described in National Ass’n of Home Builders v. Norton, 340 F.3d 835, 838 (9th Cir.2003), where a description of its habitat is also set out. In that case, we also described how the Service came to designate the Arizona pygmy-owl as a discrete population segment (DPS), distinct from the pygmy-owls in Texas and in Mexico. We held that the Service had not demonstrated a rational basis in the listing rule for its finding that the Arizona pygmy-owl was a significant part of the taxon to which it belongs and-therefore the…