Supreme Court

U.S. Supreme Court

Aug 212015
 

Full decision below

The Ninth Circuit has affirmed a district court opinion concluding that discharges from the Klamath Straits Drain into the Klamath River did not violate the Clean Water Act (ONRC Action v. U.S. Bureau of Reclamation, 12-35831).

The case attracted a great deal of interest because of the nature of the legal issue, which has been before the Supreme Court, most notably in Los Angeles County Flood Control Dist. v. Natural Resources Defense Council, ___ U.S. ___, 133 S. Ct. 710 (2013), which the appeals court panel said "provid[ed] a simpler path to resolving this appeal." The court continued:

In that case, the Supreme Court considered the question of whether "the flow of water out of a concrete channel within a river rank[s] as a 'discharge of a pollutant' " under the CWA. Id. at 711. The Court answered that question in the negative. It held that "pumping polluted water from one part of a water body into another part of the same body is not a discharge of pollutants under the CWA," id. at 711, citing to its prior decision in South Florida Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95, 109–12 (2004). The L.A. County Flood Control decision acknowledged that 'storm water is often heavily polluted.' 133 S. Ct. at 712. Nonetheless, it is the addition of pollutants from a point source that is prohibited under the CWA, and the Court held that "no pollutants are 'added' to a water body when water is merely transferred between different portions of that water body." Id. at 713. A water transfer counts as a discharge of pollutants under the CWA only if the two separate bodies of water are "meaningfully distinct water bodies." Id. (quoting Miccosukee, 541 U.S. at 112).

The court found that "The record in this case demonstrates that the waters of the KSD are not meaningfully distinct from those of the Klamath River."

Summary prepared by court staff (which constitutes no part of the opinion)

The panel affirmed the district court’s summary judgment in favor of the United States Bureau of Reclamation and other defendants in a citizen suit brought by an environmental group under the Clean Water Act, alleging defendants violated the Act by discharging pollutants from the Klamath Straits Drain into the Klamath River without a permit.

The Clean Water Act limits the “discharge of pollutants,” and makes unlawful the addition from a point source of any pollutant to navigable waters without a permit. The Klamath River is a navigable water. The Klamath Straits Drain moves water from Lower Klamath Lake back to the Klamath River, and is part of the Klamath Irrigation Project operated by the Bureau of Reclamation in parts of Oregon and California.

The panel held that because the waters flowing into the Klamath River from the Klamath Straits Drain were not “meaningfully distinct,” as that term was used in L.A. Cnty. Flood Dist. v. Natural Resources Defense Council, 133 S. Ct. 710, 713 (2013) (holding that “no pollutants are ‘added’ to a water body when water is merely transferred between different portions of that water body”), a permit was not required under the Clean Water Act.

Jan 122015
 

Earlier

Thursday, Jan. 8 - The justices will consider whether to grant the writ of certiorari at a conference on Friday, Jan. 9. Their decision will be announced Monday.

See SCOTUSBlog for briefs and this L.A. Times article by David Savage for background.

The Ninth Circuit opinion petitioners want reviewed is here.

The summary of that Ninth Circuit opinion (which does not constitute any portion of the court's ruling) is below.

The panel reversed in part and affirmed in part the district
court’s judgment invalidating a 2008 biological opinion by
the U.S. Fish and Wildlife Service that concluded that the
Central Valley and State Water Projects jeopardized the
continued existence of the delta smelt and its habitat.

The Central Valley Project and the State Water Project,
operated respectively by the U.S. Bureau of Reclamation and
the State of California, supply water originating in northern
California to agricultural and domestic consumers in central
and southern California. The source of the water—the
estuary at the confluence of the San Francisco Bay and the
Sacramento-San Joaquin Delta—is the lone habitat for the
delta smelt, a threatened species under the Endangered
Species Act (“ESA”). After the Bureau of Reclamation
requested a biological opinion (“BiOp”), the U.S. Fish and
Wildlife Service (“FWS”) concluded that the Central Valley
operations would threaten the delta smelt and, as required by
the ESA, proposed alternatives to ameliorate the effect on the
smelt, including reducing the water exported to southern
California. The plaintiffs-appellees—various water districts,
water contractors, and agricultural consumers—brought suit
under the Administrative Procedure Act against various
federal defendants. The district court concluded that the 2008
BiOp was arbitrary and capricious.

Concerning the scope of the record, the panel held that the
district court overstepped its bounds in admitting additional
declarations from the parties’ experts. The panel held that it
would consider the BiOp and evidence submitted by the
parties that the FWS considered in making its decision, and
the testimony of the four experts the district court appointed
pursuant to Federal Rule of Evidence 706.

Concerning the merits, the panel held that the 2008
BiOp’s reliance on raw salvage figures to set the upper and
lower Old and Middle Rivers flow limits was not arbitrary
and capricious. The panel also held that the 2008 BiOp’s
determination of X2 (the point in the Bay-Delta at which the
salinity is less than two parts per thousand) was not arbitrary
and capricious. The panel further held that the BiOp’s
incidental take statement was not arbitrary and capricious
because it included adequate explanation and support for its
determinations. The panel also held the record supported the
BiOp’s conclusions regarding the indirect effects of project
operations. The panel disagreed with the district court’s
determination that the FWS’s own regulations and the
Administrative Procedure Act required the FWS to explain
that the reasonable and prudent alternatives satisfied 50
C.F.R. § 402.02’s non-jeopardy factors. The panel held that
the FWS’s consideration of these factors could be reasonably
discerned from the record to satisfy any explanation
requirements.

Concerning the cross appeal, the panel held that the FWS
did not violate the ESA by not separating the discretionary
from nondiscretionary actions when it set the environmental
baseline. The panel also held that the Bureau of Reclamation
did not violate the ESA by accepting the 2008 BiOp. The
panel affirmed the district court’s judgment with respect to
the National Environmental Policy Act (“NEPA”) claims, and
held: NEPA does not require the FWS to prepare an
Environmental Impact Statement in conjunction with the
issuance of the BiOp; and the Bureau of Reclamation’s
provisional adoption and implementation of the BiOp
triggered its obligation to comply with NEPA. The panel
affirmed the district court’s order remanding to the Bureau of
Reclamation so that it can complete an Environmental Impact
Statement evaluating the effects of its adoption and
implementation of the BiOp.

Eighth Circuit Judge Arnold dissented from Parts III,
IV.A., IV.B, IV.E, and V.B. of the majority opinion, and
concurred in the rest. Judge Arnold would uphold the district
court’s limited admission of evidence outside the
administrative record as relevant to the Old and Middle River
flow limits and determination of X2, and agreed with the
district court that the FWS’s determination as to the flow
prescription and X2 was arbitrary and capricious. Judge
Arnold disagreed with the basis of the district court’s
conclusion that the non-jeopardy elements must be addressed
in the BiOp or administrative record, but would affirm on the
issue. Finally, Judge Arnold believes the district court should
have found the Bureau of Reclamation independently liable
under the ESA for relying on a legally flawed BiOp.
Judge Rawlinson concurred in the bulk of the majority
opinion, but dissented from Part V.C.2. Judge Rawlinson
disagreed only with the rationale and conclusion that the
Bureau of Reclamation’s adoption and implementation of the
BiOp triggered its obligation to comply with NEPA by
preparing an Environmental Impact Statement that is
generally required under the ESA.

Jan 082015
 

A federal judge has rejected a request for a preliminary injunction that would prevent dredging of the lower Snake River (Idaho Rivers United v. U.S. Army Corps of Engineers, 14-1800 JLR, W.D. Wa.; order below). “Because the court has found that plaintiffs have failed to demonstrate three of the required elements necessary for issuance of […]

Nov 032014
 

The Supreme Court will hear arguments in a water dispute between Florida and Georgia. The court on Nov. 3 granted Florida’s request to file a bill of complaint in its dispute with Georgia over the allocation of water in the Apalachicola-Chattahoochee-Flint (ACF) River Basin (Florida v. Georgia, No. 220142 ORG). The United States had asked the […]

Jul 302014
 

In a decision issued today, the Fifth Circuit Court of Appeals determined that a jurisdictional determination by the Army Corps of Engineers was not a final agency action and was thus not judicially reviewable (Belle Company v. U.S. Army Corps of Engineers, 13-30262). The court affirmed a district court judge’s decision that said the court […]

Dec 102013
 

The federal government owes the state of Arkansas about $5.8 million, the Federal Circuit Court of Appeals ruled Dec. 3, affirming a lower court determination after a remand from the Supreme Court (Arkansas Game & Fish Commission v. U.S., 09-5121). The high court had held that the Army Corps of Engineers’ flooding of a wildlife management […]

Jun 272013
 

The U.S. Supreme Court, led by Justice Samuel Alito, roamed far beyond the bounds of previous takings decisions to issue a decision Tuesday that “will result in long-lasting harm to America’s communities,” law professor and takings expert John Echeverria predicted in an op-ed published yesterday by the New York Times. The 5-4 ruling in Koontz […]

Jun 282012
 
SCOTUS declines to review tri-state water dispute

Here’s some Supreme Court news we overlooked: On Monday, the court, by not granting petitions for writs of certiorari filed by Alabama, Florida and Southeastern Federal Power Customers, essentially validated Atlanta’s right to water from Lake Lanier (Docket). The 11th Circuit Court of Appeals last year reversed a district court ruling, finding: First, the district court […]

Jun 252012
 

Two major Ninth Circuit decisions will be reviewed by the Supreme Court, which means that those decisions are almost surely in danger of being overturned. The cases are Los Angeles County Flood Control Dist. v. Natural Resources Defense Council (11-460) and a pair of consolidated petitions, Decker v. Northwest Environmental Defense Center (11-338) and Georgia-Pacific West Inc. […]

Apr 042012
 
Roundup: Permit needed to shoot captive-bred listed species in Texas; Supreme Court to take up Arkansas flooding takings case; investigation of wolf trapping sought

A federal judge has ruled against requests that would allow continued hunting without a permit of three non-native, privately bred antelope species on game farms in Texas (Safari Club International v. Salazar, 11-1564-BAH; Exotic Wildlife Association v. U.S. 12-340-BAH, D.D.C). Safari Club International and the Exotic Wildlife Association had asked U.S. District Judge Beryl Howell […]