Ninth Circuit Dismisses "Fall X2" Appeal for Mootness

On August 23, 2012, the United States Court of Appeals for the Ninth Circuit issued an order in San Luis & Delta Mendota Water Authority, et al. v. Salazar, et al., Appeal No. 11-17143, granting Appellees' motion to dismiss the appeal. 

The Fall X2 Action is an action in the Reasonable and Prudent Alternative identified in the 2008 U.S. Fish & Wildlife Service biological opinion regarding the effects of the long-term operation of the Central Valley Project and State Water Project on the delta smelt.  In the August 23, 2012 order, the Ninth Circuit held: "Because the implementation period for the Fall X2 Action has passed, any challenge to the district court's injunction is moot." 

As a result of the order, the scheduled oral argument for the two Delta Smelt Consolidated Cases appeals will no longer include oral argument on the propriety of the district court's August 31, 2011 decision that enjoined the federal government from implementing the Fall X2 Action, which, absent the injunction, would have restricted California's water supply by hundreds of thousands of acre feet.

Related Stories:

• Oral Argument Scheduled for Ninth CircuitAppeals in the Delta Smelt Consolidated Cases
• Federal District Court Enjoins Water Supply Restrictions Under Delta Smelt Biological Opinion

 

Ninth Circuit Court of Appeals Rejects Challenges to 43 Federal Water Contracts

On July 17, 2012 the Ninth Circuit issued an important opinion rejecting challenges to the U.S. Bureau of Reclamation's renewal of 43 water contracts in 2004-2005.  The contracts at issue consisted of two general types - water service contracts in the Delta Mendota Canal Unit of the Central Valley Project and Sacramento River Settlement contracts. 

The case stems back to litigation over a 2005 biological opinion issued by the U.S. Fish and Wildlife Service on the effects of State and Federal water project operations on the threatened delta smelt.  That 2005 BiOp was challenged by environmental groups and ruled invalid by the district court.  In an attempt to ride the wave of that success, the same environmental groups then filed a supplemental complaint challenging the earlier contract renewals by the Bureau as invalid because they had partially incorporated the 2005 BiOp.  The district court rejected these claims because the water service contracts expressly provided and allowed for the Bureau to change CVP operations (including reducing deliveries) in any way required by the ESA, and therefore their execution and existence did not cause any actual harm to the delta smelt.  With respect to the settlement contracts, the district court generally found that the Bureau had no discretion to alter their terms and therefore the ESA consultation provisions did not apply to the renewal of those contracts. 

The Ninth Circuit Court of Appeals affirmed both district court rulings, rejecting challenges to both types of water contracts.  The opinion can be found here.

If you have any questions regarding this decision, please contact, Daniel J. O’Hanlon, Hanspeter Walter, or Rebecca Akroyd.
    

Oral Argument Scheduled for Ninth Circuit Appeals in the Delta Smelt Consolidated Cases

On July 10, 2012, the United States Court of Appeals for the Ninth Circuit issued a notice of oral argument in the Consolidated Delta Smelt Cases appeals, Ninth Circuit Case Nos. 11-15871, 11-16617, 11-16621, 11-16623, 11-6624, 11-16660, 11-16662, and 11-17143.  The lead appeal is also referred to as San Luis & Delta-Mendota Water Authority, et al. v. Salazar, et al.  Hearing on the appeal will occur September 10, 2012, at 9:00 a.m. in the Lloyd D. George United States Courthouse in Las Vegas, Nevada.  The court will reveal the identity of panel members not earlier than the week before the case will be heard. 

The court will hear oral argument on appeals regarding two decisions from the United States District Court for the Eastern District of California: 1) the district court’s December 14, 2010 Memorandum Decision re Cross Motions for Summary Judgment, and the related May 18, 2011 final judgment, which held that the U.S. Fish and Wildlife Service’s (“FWS”) 2008 delta smelt biological opinion (“BiOp”) and Reasonable and Prudent Alternative (“RPA”) were arbitrary, capricious, and unlawful and remanded the BiOp and RPA to FWS; and 2) the district court’s August 31, 2011 decision that enjoined the federal government from implementing the so-called “Fall X2” measure, which, absent the injunction, would have restricted California’s water supply by hundreds of thousands of acre feet.

Briefing completed in the so-called “Merits Appeal” on May 25, 2012, while briefing completed in the so-called “X2 Appeal” on April 5, 2012.  An order granting the motion to consolidate the Merits Appeal and X2 Appeal, which were separately briefed, for oral argument, was filed on May 25, 2012.  

If you have any questions regarding this announcement, please contact Daniel J. O’Hanlon, Rebecca Akroyd, or Hanspeter Walter, or the KMTG attorney with whom you normally consult.

Related Stories:

• Court Denies “Fall X2” Motions and Finds Agency Bad Faith 
• Federal District Court Enjoins Water Supply Restrictions Under Delta Smelt Biological Opinion

Fish & Wildlife Service Finds Bay-Delta Longfin Smelt Warrant Protection Under The Endangered Species Act

The U.S. Fish and Wildlife Service (Service) recently announced a 12-month finding on a petition to list the San Francisco Bay-Delta population of longfin smelt as endangered or threatened under the Endangered Species Act (ESA), finding that the Delta population of longfin smelt warranted ESA protection. The Service’s April 2, 2012, Federal Register notice of its 12-month finding is available here.

The Bay-Delta longfin smelt is a small fish, averaging approximately four inches in length, which is found in the San Francisco Bay-Delta, including Suisun Marsh and San Pablo Bay. The population of Bay-Delta longfin smelt has declined significantly in recent years. The Service’s 12-month finding identified a variety of threats to the Bay-Delta longfin smelt population, including habitat modification and the introduction of non-native species.

The Service found that listing of the Bay-Delta longfin smelt under the ESA is warranted but listing is currently precluded by higher priority actions. The Service added the Bay-Delta longfin smelt to its candidate species list, under which its status will be reviewed annually. Candidate species do not receive protection under the ESA, so the 12-month finding will not impose any new requirements or restrictions to protect the longfin smelt. However, the longfin smelt species is listed as a threatened species under the California Endangered Species Act, and is thus protected under state law. The Service stated that is will develop a proposed rule to list the the Bay-Delta longfin smelt under the ESA as its priorites allow. Any future proposal to add longfin smelt to the federal list of threatened or endangered species would be subject to public review and comment.

For more information regarding this matter, please contact Elizabeth Leeper or the KMTG attorney with whom you normally consult.


Related Stories:

Congressional ESA Oversight Hearing Materials Available Online
Congressional Committee Will Hold Oversight Hearing On Endangered Species Act Litigation

OCAP Annual Independent Science Review Panel to Convene November 8-9, 2011

The 2011 Operations Criteria and Plan ("OCAP") annual independent science review will take place on November 8-9, 2011, in Sacramento. The meeting announcement and agenda, with instructions on participating via the internet, may be found here.

Under the auspices of the Delta Science Program ("DSP"), an independent science panel comprised of various academics and experts will convene to review the implementation of the OCAP for the prior year’s operations. The purpose of the review is to provide critical information to the National Marine Fisheries Service ("NMFS") and the U.S. Fish and Wildlife Service ("FWS") about the effectiveness of the prior year’s water operations and regulatory actions. NMFS and FWS have issued biological opinions and reasonable and prudent alternatives ("RPA") on the long-term operations of the Central Valley Project and State Water Project relative to salmonids and smelt, respectively. The agencies have requested that the DSP convene the panel to provide a technical review on the implementation of the biological opinions and RPAs. The specific charge to the panel may be found here.

The panelists are:

• James Anderson, Ph.D., University of Washington
• James Gore, Ph.D., University of Tampa
• Ron Kneib, Ph.D., RTK Consulting & University of Georgia (Emeritus)
• Mark Lorang, Ph.D., University of Montana
• John Van Sickle, Ph.D., U.S. Environmental Protection Agency’s Western Ecology Division

The annual review will be conducted Tuesday, November 8, from 9:00 a.m. to 5:00 p.m., and Wednesday, November 9, from 2:00 p.m. to 5:00 p.m. Both days' sessions will take place at 650 Capitol Mall, Stanford Room (first floor), in Sacramento. Sessions should be available on the internet.

Copies of all materials for the annual review, including review materials and background information, may be found here.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

U.S. Fish and Wildlife Service Determines That California Golden Trout Does Not Warrant Protection Under the Endangered Species Act

California’s official state fish, the California Golden Trout, is not an endangered species, according to the United States Fish and Wildlife Service (FWS).  On October 7, 2011, after more than a decade of evaluating the Golden Trout’s status, FWS announced that the species does not warrant protection under the federal Endangered Species Act.

In 2000, Trout Unlimited petitioned FWS to list the Golden Trout as an endangered subspecies, based on concerns regarding habitat degradation, genetic hybridization, and predation.  In 2004, the state and federal fish and wildlife agencies forged a cooperation conservation agreement with interest groups, to address the threats to the Golden Trout.  The agreement provided for habitat restoration projects, decreased cattle grazing, and more studies of the fish.  In concluding that the Golden Trout was not an endangered species, FWS considered the conservation measures and benefits already in place under this agreement.

Additional actions taken under the species’ Conservation Strategy to protect the Golden Trout from genetic dilution and competition were also identified as contributing to the species’ health and population.  FWS concluded that these past conservation actions and continuing commitments provided protection for the Golden Trout, and that an endangered listing was not warranted.

FWS's press release regarding this listing decision may be found here.

For a draft of the Federal Register Notice "Endangered and Threatened Wildlife and Plants; 12-Month Finding for a Petition to List the California Golden Trout as Endangered," click here.

If you have any questions concerning this matter, please contact Rebecca R. Akroyd or the KMTG attorney with whom you normally consult.