CENTER FOR BIOLOGICAL DIVERSITY; Friends of the Santa Clara River, Plaintiffs-Appellants, v. UNITED STATES FISH & WILDLIFE SERVICE, Defendant-Appellee, Cemex Inc., a Louisiana Corporation qualified to do business in California f/k/a Southdown Inc. d/b/a Transit Mixed Concrete (TMC), Defendant-Intervenor-Appellee.

In 1970, the Fish and Wildlife Service listed the unarmored threespine stickleback fish as an endangered species. In 1980, the Service developed a proposal that designated critical habitat for the stickleback, but the designation was never completed. Since the stickleback is mainly found in parts of southern California, the critical habitat included three stream zones of the Santa Clara River watershed. In 1990, Cemex, a cement company, wanted to pump water from the Santa Clara River to its mining project in southern California. The pumping would increase the frequency that the Santa Clara River dries up, which could lead to more stickleback getting stuck in isolated pools when the river is dry. During the environmental review process, the Service investigated the project's impact on the stickleback. The Service reported that it was difficult to retrieve adequate predictions on how the stickleback population would be affected due to the Service's inability to pin down the cause of death for any given stickleback. In spite of this difficulty, the Service required that Cemex implement mitigation measures to ensure that the stickleback would be reasonably protected. With the mitigation measures in place, the Service concluded that the project "was not likely to jeopardize the continued existence of the stickleback." The final biological opinion included an ITS, exempting Cemex from the prohibition against takings. In 2002, the Center for Biological Diversity ("CBD") filed suit against the Service on the grounds that the Service violated the ESA by failing to designate a critical habitat for the stickleback. In addition, CBD claimed that the Service unlawfully issued an ITS to Cemex in 1990. Also in 2002, the Service made a finding that critical habitat should not be designated for the stickleback. In light of the complicated procedural history and the different parties involved, the issues were finally narrowed at the appellate level to CBD's claims that the Service is required by the ESA to designate a critical habitat for the stickleback and CBD's challenge to the ITS. Following cross-motions for summary judgment in December 2002 and January 2003, the district court granted summary judgment to the Service and CEMEX. The court declared CBD's original claim moot. The court rejected CBD's other claims, concluding that the decision not to designate critical habitat was within the Service's discretion and that the Service did not violate the ESA by issuing an ITS to CEMEX. The district court also granted motions to strike several CBD exhibits that were not part of the administrative record. In affirming the decision, the Ninth Circuit, held that it was not arbitrary and capricious for the Service to decide not to designate critical habitat for the stickleback. The Service was not required to ensure compliance with federal and state laws before issuing an ITS (incidental take statement) to CEMEX, and the district court did not abuse its discretion in striking extra-record exhibits offered to establish a new rationale for attacking the Service's decision.