Jan 122015


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

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.

Dec 062011

Here are a couple of items that I meant to get online last week. Best of intentions, oh well...

U.S. District Judge James A. Redden, who has served on the federal bench in Oregon since 1980 and has rejected three different operating plans put forth by three different presidential administrations for the Columbia River hydropower system, will step down.

Photo by Torsten Kjellstrand, The Oregonian

In an e-mail to attorneys in the long-running legal battle over the hydrosystem, the judge said he would leave the bench before Jan. 1, 2014, the deadline for the government to file a new plan addressing dams and endangered salmon in the Columbia River Basin.

"Dear Counsel," the judge wrote Nov. 22. "At our last meeting I indicated that I would step down prior to the filing of the 2014 BiOp. I struck the 2000 BiOp, and the 2004 BiOp, and the 2008/2011 BiOp. I will file a Notice of Case Reassignment. The Chief Judge and other Article III Judges of this court will assign this case to a'“new' Article III Judge. This will allow time for that judge to review the history of this matter before the 2014 BiOp is filed.

"I will follow this matter with great interest," he concluded.

The case has been reassigned to U.S. District Judge Michael H. Simon.

Some quotes from articles and editorials in the Northwest (scroll over link for source):

"The Northwest’s endangered salmon are losing their best friend."

"Neither [Pat] Ford, [executive director of Save Our Wild Salmon], nor Will Stelle, Northwest regional director of the NOAA Fisheries Service, expect a new judge to take a course significantly different from Redden.

'He already laid out the roadmap for us,' Stelle said. 'We will follow that roadmap.' " (Jeff Barnard, Associated Press)

More news coverage and editorials from Google Search of "Redden retires"

Meanwhile, down the coast from Redden, Oliver Wanger, only recently retired from the bench in Fresno, is representing Westlands Water District in an action in state court.

Photo by Tracey Scharmann/KQED

The former federal judge, who decided numerous significant cases involving water management in California, told the Los Angeles Times, "It’s one case only in the state court. It involves matters of law and fact that I, of course, had nothing to do with and no association with” as a federal judge.

"I obviously am bound by the canons of ethics and judicial conduct and will observe those scrupulously,”  Wanger also told the newspaper, which reported that he "has been a featured speaker at several meetings of water contractors since he left the bench Sept. 30."

There was criticism of the judge's choice of clientele, however. In an editorial, the Sacramento Bee said, "his decision to work for Westlands throws into question his past impartiality, since he was at the center of so many cases involving this water district and previously ruled on similar lawsuits involving federal statutes."

The Bee also noted that on Oct. 3, three days after Wanger put down his gavel, "a major Westlands landowner emailed an invitation to growers announcing that Wanger would be the guest speaker at a political event for a local supervisor who used to clerk for Wanger. 'Judge Oliver Wanger has been key in supporting Valley agriculture and its lawful access to essential water!,' said the flier sent by Westlands grower Mark Borba."

Wanger is not violating any federal ethics rules, since his representation is in a case in state, not federal, court. But the Bee said he was especially tough on federal scientists in the last water case he presided over, calling one biologist a "zealot" and questioning another's credibility.


The man with his hand on California's spigot (Bettina Boxall, L.A. Times, 10/7/2011)

S.F. Chronicle editorial  (12/2/2011)