Dec 222014

San Luis & Delta-Mendota Water Authority v. Locke (12-15144) (D.C. No. 09-1053-LJO-DLB)

Panel: Richard C. Tallman and Johnnie B. Rawlinson, Circuit Judges, and Thomas O. Rice, District Judge, sitting by designation from the Eastern District of Washington. Opinion by Tallman.

Here's the opinion and here's the summary of the decision from the court:

The summary "constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader."

The panel affirmed in part and reversed in part the district court’s summary judgment and remanded for entry of summary judgment in favor of defendants, federal agencies and intervenor-environmental groups, in an action pertaining to a formal Biological Opinion developed by the Commerce Department’s National Marine Fisheries Service pursuant to the Endangered Species Act regarding the impact of continuing water extraction in the California Central Valley on certain threatened and endangered Salmonid species.

The Marine Fisheries Service in its 2009 Biological Opinion determined that the Department of Interior Bureau of Reclamation’s proposed water project in the Central Valley would jeopardize some of the Delta’s endangered Salmonids. To remedy this problem, the Marine Fisheries Service has required the Bureau to change the way it pumps water out of the Central Valley’s rivers. A number of groups that depend on the Central Valley’s water sued to halt this change. On summary judgment, the district court found, in part, that the Marine Fisheries Service violated the Administrative Procedure Act’s arbitrary or capricious standard when developing much of the Biological Opinion.

On an initial evidentiary question, the panel held that the district court went beyond the exceptions, set forth in Lands Council v. Powell, 395 F.3d 1019 (9th Cir. 2004), when it admitted extra-record declarations and substituted the analysis in those declarations for that provided by the Marine Fisheries Service.

The panel held that the district court did not give the Service the substantial deference it was due under the Administrative Procedure Act. The panel found that the components of the Biological Opinion invalidated by the district court were reasonable and supported by the record and therefore the panel upheld the Biological Opinion in its entirety.

Specifically, the panel found that: (1) the Service acted within its substantial discretion when it used raw salvage data instead of data scaled to fish population to set flows in the Old and Middle Rivers; (2) the Service’s jeopardy opinion components were not arbitrary and capricious as they pertained to the winter-run Chinook, the Southern Resident orca, the steelhead critical habitat, and the impact of indirect mortality factors on the listed species; and (3) the Biological Opinion’s challenged reasonable and prudent alternative actions were not arbitrary and capricious.

Affirming, on cross-appeal, several components of the district court’s opinion, the panel held that the Marine Fisheries Service did not need to distinguish between discretionary and non-discretionary actions; that the Biological Opinion’s indirect mortality factors were direct effects under the Endangered Species Act; and that Bureau of Reclamation was not independently liable under the Endangered Species Act.