Center for Biological Diversity v. United States Department of Housing and Urban Development

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CENTER FOR BIOLOGICAL
DIVERSITY, et al.
Plaintiffs - Appellants,
v.
UNITED STATES DEPARTMENT OF
HOUSING AND URBAN
DEVELOPMENT, et al.
Defendants - Appellees.
No. 08-16400
D.C. No. CIV-261-TUC-CKJ
MEMORANDUM *
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted November 5, 2009
San Francisco, California
Before: HUG, RYMER AND McKEOWN, Circuit Judges.
The Center for Biological Diversity (“the Center”) appeals the district
court’s summary judgment in favor of the United States Department of Housing
and Urban Development (“HUD”), the United States Small Business
FILED
NOV 25 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Administration (“SBA”) and the United States Department of Veterans Affairs
(“VA”) (collectively, “the agencies”) for claimed violations of the Endangered
Species Act (“ESA”) and the National Environmental Policy Act (“NEPA”). We
have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court’s
grant of summary judgment de novo, Biodiversity Legal Found. v. Badgley, 309
F.3d 1166, 1175 (9th Cir. 2002), and we affirm.
Under the ESA, federal agencies must review their actions to determine
whether they may affect listed species or critical habitat. 50 C.F.R. § 402.14;
Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1063 (9th
Cir. 2004). Effects of the action refers to both direct and indirect effects. 50
C.F.R. § 402.02. Indirect effects are those that are caused by the proposed action
and are later in time, but still reasonably certain to occur. Id. NEPA requires
federal agencies to complete an Environmental Impact Statement for “major
Federal actions significantly affecting the quality of the human environment.” 42
U.S.C. § 4332(C). NEPA requires “a reasonably close causal relationship”
between the environmental effect and the alleged cause. Dep’t of Transp. v. Public
Citizen, 541 U.S. 752, 767 (2004). Marginal federal action does not fall within the
scope of NEPA. Sierra Club v. Penfold, 857 F.2d 1307, 1314 (9th Cir. 1988). The

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standards of review of federal action under NEPA and the ESA are similar.
Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1075 (9th Cir. 1996).
The agencies guarantee loans issued by private lenders to qualified
borrowers, but do not approve or undertake any of the development projects at
issue. The agencies’ loan guarantees have such a remote and indirect relationship
to the watershed problems allegedly stemming from the urban development that
they cannot be held to be a legal cause of any effect on protected species for
purposes of either the ESA or the NEPA. This case stands in contrast to those
where the disputed agency action had a more direct, on-the-ground effect and
where the environmental mandates thus had to be followed by the agencies. See,
e.g., Davis v. Coleman, 521 F.2d 661, 674-75 (9th Cir. 1975). The district court’s
grant of summary judgment was proper.
AFFIRMED.

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