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Ninth Circuit Reverses District Court and Upholds Biological Opinion Protecting Endangered Species in the Delta . . . Again


In San Luis & Delta-Mendota Water Authority v. Locke, 2014 U.S. App. LEXIS 24351, the Ninth Circuit reversed the district court and upheld a National Marine Fisheries Service’s (NMFS) biological opinion that determined continuing water extractions in the Central Valley would jeopardize several threatened and endangered species. The court also affirmed the district court on three cross-appeal issues related to the biological opinion.

The U.S. Bureau of Reclamation (Reclamation) requested the biological opinion in accordance with the Endangered Species Act (ESA).  Following new designations of certain species and habitats in the Sacramento-San Joaquin Delta (Delta), Reclamation asked NMFS to evaluate the impact of California’s complex water distribution system on five Salmonid species of anadromous fish and the Southern Resident orca. NMFS determined continued operations of the system would jeopardize the existence of all but one of the fish species and recommended several “reasonable and prudent alternatives” (RPAs) to change how Reclamation pumped water from the Delta. Subsequently, numerous water districts and other stakeholders (plaintiffs) sued Reclamation and other federal agencies arguing that portions of the biological opinion were arbitrary and capricious in violation of the Administrative Procedures Act (APA).

The court’s opinion mirrored its previous decision in San Luis & Delta-Mendota Water Authority v. Jewell, 747 F.3d 581 (summarized here: http://www.thomaslaw.com/blog/ninth-circuit-reverses-district-court-upholds-biological-opinion-protecting-endangered-delta-smelt/) in which the court similarly reversed the district court and upheld a biological opinion regarding the Delta Smelt. Similar to Jewell, the court held the trial court erred in considering evidence outside the record. The court reasoned the district court improperly used the extra-record evidence to question NMFS’ scientific judgments.

The court then considered each of plaintiffs’ challenges to the biological opinion and found that the district court did not afford NMFS the proper deference under the APA. Paralleling its reasoning in Jewell, the court upheld NMFS’ use of raw salvage figures to estimate the number of fish trapped in the Delta’s pumps. The court also concluded that NMFS did not act arbitrarily or capriciously in finding the continued water allocations would jeopardize the viability and habitat of the listed species. The court reasoned NMFS properly characterized the baseline status of the populations, correctly applied the ESA, considered all relevant factors and adequately supported its conclusions with the best available evidence. Accordingly, the district court erred in questioning the scientific judgments of NMFS.

The court also held the trial court erred in requiring NMFS to explain why each RPA was necessary over other alternatives to preserve the listed species. The ESA imposed no such burden and only required NMFS to “fairly conclude–based on the record­­–that the proposed RPAs do not further jeopardize the listed species or adversely affect critical habitats.”

Finally, the court upheld the district court on three cross-appeals in which the district afforded NMFS the proper deference in drafting the biological opinion.

KEY POINT

The court reiterated the holding from San Luis & Delta-Mendota Water Authority v. Jewell that courts should be highly deferential to the scientific expertise of agencies such as NMFS when reviewing biological opinions. Litigants should also strongly consider the terse summation of the Delta situation guiding the Ninth Circuit in this case and likely in future cases as well––“People need water, but so do fish.”



dateJanuary 29th, 2015byby


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