Fifth Circuit Finds Pipelines Won’t Drive Texas Cats to Extinction

The federal appellate court sided with the U.S. Fish and Wildlife Service, upholding its approval of a gas pipeline project that environmentalists say could harm endangered wild cats in South Texas.

Female ocelot on a branch. (Credit: Tambako the Jaguar, licensed under CC BY-ND 2.0)

(CN) — The Fifth Circuit held Wednesday that natural gas pipelines in South Texas will not drive two native cat species to extinction, delivering a loss to biodiversity advocates.

“Plainly put, the [U.S. Fish and Wildlife] Service has identified the reasons underlying its conclusion that the ocelot and jaguarundi’s continued existence could not be jeopardized by the project, and it has articulated a rational connection between these reasons and that conclusion,” Senior U.S. Circuit Judge Carolyn King wrote in her opinion for the court. “Therefore, the service’s biological opinion was not arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law.”

South Texas is brush country, populated by grassy plains and ranges of thorny vegetation such as prickly pear cacti, mesquite and acacia. It is the northernmost range of the ocelot, a striped and spotted wild cat that can be found as far south as northern Argentina and even on Caribbean islands such as Trinidad.

The wild cats are native to the dense brushland of southern Texas, but the Lone Star State is home to only 53 documented ocelots, 39 of which live on private lands owned by ranchers. Another 14 of these carnivorous creatures reside in the Laguna Atascosa National Wildlife Refuge, the Lower Rio Grande Valley’s largest protected natural habitat.

The U.S. Fish and Wildlife Service says that more than 95% of ocelot habitat has been lost due to land conversion. Urban development, deforestation and agriculture — plus “a fashion thirst for ocelot coats” — have resulted in “a critically endangered cat,” the federal agency says. The federal government declared ocelots an endangered species in 1972.

Globally, ocelots appear to be doing well for themselves. The International Union for Conservation of Nature’s Red List of Threatened Species, which compiles species’ conservation status across the globe, rates the ocelot as a species of “least concern,” its lowest-risk category indicating species that are unlikely to soon become extinct.

But the Sierra Club and Defenders of Wildlife, two nonprofit conservation organizations, worry that the proposed construction of two liquid natural gas pipelines that would run from Corpus Christi to the Brownsville Ship Channel will endanger the refuge’s ocelots. The Rio Bravo Pipeline Project would transport 4.5 billion cubic feet of natural gas daily.

The Fish and Wildlife Service issued a report saying that the pipelines may be built on the 900-acre site so long as no more than one ocelot or jaguarundi — another endangered wild cat that is being reintroduced to its native South Texas — is harmed or killed during the project.

Last month, the Fifth Circuit heard arguments from the environmentalists’ lawyers and Justice Department attorneys about whether the Fish and Wildlife Service’s decision was proper.

The environmentalists call the agency’s decision arbitrary and capricious, arguing that it fails to set a clear limit on what counts as harm to one ocelot or jaguarundi, neglects to set an “enforceable trigger” that would require the pipeline company to reinitiate consultation with the federal agency in case a protected cat is injured or killed, and fails to require measures that would mitigate the projects’ effect on the cats.

They asked the court to tell the Fish and Wildlife Service to vacate its biological opinion and develop a new one.

Judge King, a Jimmy Carter appointee, found in the government’s favor on each of the environmentalists’ arguments.

She wrote that the Fish and Wildlife Service’s description of an “anticipated take” of an endangered cat is not ambiguous, found that the agency’s opinion does require “a discussion” between the government and the developer in the case of a cat’s death, and concluded that the government did recommend voluntary conservation measures, at least one of which — the purchase of 1,050 acres of ocelot and jaguarundi land — has already been implemented.

“At bottom, the Service considered all that it was required to consider—and much of what Petitioners argue that the Service failed to consider—except for what it was specifically allowed to omit,” King wrote.

King was joined on the unanimous three-judge panel by U.S. Circuit Judges Jennifer Walker Elrod and Don Willett, appointed by George W. Bush and Donald Trump, respectively.

Sierra Club attorney Eric Huber said the environmental groups are disappointed in the court’s decision and are considering appealing the order to the U.S. Supreme Court.

“The purpose of the Endangered Species Act is to ensure precarious species like the ocelot are protected from a state of jeopardy,” Huber said in an email. “But today’s decision affirms the agency’s authorization to harm or kill ocelots in connection with these projects on top of numerous previously authorized losses resulting from nearby projects, which the agency itself has concluded could lead to the extirpation of one of two remaining breeding ocelot populations in Texas.”

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