Retired U.S. District Judge Oliver Wanger must be pleased. The Ninth Circuit today affirmed his ruling that the renewal of 41 water contracts did not violate the Endangered Species Act’s Section 7(a)(2), requiring federal agencies to consult with the Fish and Wildlife Service or National Marine Fisheries Service before they proceed with major federal actions (Natural Resources Defense Council v. Salazar, 09-17661).
As has been the case in most of the litigation involving water supply contracts in California’s Central Valley, the tiny — but still federally listed — delta smelt played a central role.
The summary at the opinion’s outset says it simply:
“In this appeal, we address whether the renewal of forty-one water supply contracts by the United States Bureau of Reclamation violates § 7(a)(2) of the Endangered Species Act, 16 U.S.C. § 1536(a)(2) and illegally threatens the existence of the delta smelt. We conclude that it does not, and we affirm the judgment of the district court.”
“The contracts at issue fall into two groups: (1) users who obtain water from the Delta- Mendota Canal (“DMC Contractors”); and (2) parties who claim to hold water rights senior to those held by the Bureau with regard to the Central Valley Project and who previously entered into settlement contracts with the Bureau (“Settlement Contractors”).”
The court agreed with Wanger that the environmental groups had not been able to establish that they had standing to bring their lawsuit.
“Plaintiffs satisfy the injury-in-fact requirement by their assertion that they believe that the bureau has overcommitted water under the contracts which will harm the delta smelt,” Judge Procter Hug wrote for a three-judge panel. “However, plaintiffs fail to establish a causal connection between the threatened injury and the bureau’s action because the DMC [Delta-Mendota Canal] contracts include a shortage provision. The shortage provision expressly allows the bureau to take any action to meet its legal obligations, which includes not delivering water to DMC contractors if it is necessary in order to comply with § 7(a)(2) of the ESA.”
The 2-1 decision was authored by Circuit Judge Procter Hug Jr. who was joined by U.S. District Judge Liam O’Grady, sitting by designation from the U.S. District Court for Eastern Virginia. Circuit Judge Richard Paez dissented.
The most comprehensive collection of coverage of the decision is likely to be found at Aquafornia, a web site dedicated to all things aquatic in the Golden State. (Though I just checked and saw no reference to this decision. Pretty remarkable.)