Tuesday, September 20, 2011

Court Finds 2009 Salmonid Biological Opinion Arbitrary and Capricious and Remands to National Marine Fisheries Services

On September 20, 2011, the United States District Court for the Eastern District of California issued a memorandum decision that finds the 2009 Salmonid Biological Opinion ("BiOp") and Reasonable and Prudent Alternative ("RPA") arbitrary, capricious, and unlawful.

In a 279-page decision by Honorable Judge Oliver Wanger, the court found several scientific and legal errors in the BiOp and RPA that warranted remand.  On multiple occasions, the court found "clear error" or a failure to use the "best available science."  The court concluded:

Some of NMFS's analyses rely upon equivocal or bad science to impose RPA Actions without clearly explaining or otherwise demonstrating why specific measures imposed are essential to avoid jeopardy and/or adverse modification.  Given the potential serious impacts of these measures, the agency must do more to comply with the law.
The district court's opinion in the case, San Luis & Delta-Mendota Water Authority et al. v. Locke et al., Case No. 1:09-CV-1053, may be found hereA KMTG Legal Alert with a detailed analysis of the court's ruling will be posted in the near future.

If you have any questions concerning this decision, please contact Rebecca R. Akroyd, K. Eric Adair, Daniel J. O'Hanlon, or Hanspeter Walter, or the KMTG attorney with whom you normally consult.

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