Case summaries.

• Position: P. 631-669 - Case overview

18. Grand Canyon Trust v. U.S. Bureau of Reclamation, 691 F.3d 1008 (9th Cir. 2012).

    The Grand Canyon Trust (Trust) (279) appealed the United States District Court for the District of Arizona's grant of summary judgment for the United States Bureau of Reclamation (BOR) (280) and the United States Fish and Wildlife Service (FWS) (281) regarding the Glen Canyon Dam (Dam). (282) The Trust alleged violations of the Endangered Species Act (ESA) (283) in regard to the endangered humpback chub (Gila cypha), National Environmental Policy Act (NEPA), (284) and Administrative Procedure .Act (APA) (285) as a result of the Dam's operation. The United States Court of Appeals for the Ninth Circuit dismissed the Trust's claims as moot in part and affirmed in part.

    The Dam is located on the Colorado River in Northern Arizona. It created Lake Powell, a reServoir that provides drinking water for twenty-five million people. Without mitigation, the Dam largely prevents the flow of sediment from Lake Powell to the Colorado River below the Dam, affecting critical habitat of the humpback chub by malting certain regions of the river cooler. The core issues in this case centered on application of statutory requirements protecting the humpback chub.

    Under the Grand Canyon Protection Act of 1992 (GCPA), (286) the Secretary of the Interior (Secretary) was required to complete a final environmental impact statement (EIS) under NEPA and transmit annual operating plans (AOPs) to Congress and the Governors of the Colorado River Basin States. NEPA requires the issuance of an EIS for every major federal action significantly affecting the quality of human environment. Responding to the GCPA's statutory requirements, BOR completed its final EIS in 1995. This EIS analyzed alternative operations under a modified low fluctuating flow (MLFF) regime and a seasonally adjusted steady flow regime. (287)

    BOR also formally consulted with FWS regarding the operation of the Dam using MLFF. Under the ESA, the action agency must formally consult with the species consulting agency--either FWS or the National Marine Fisheries Service (NMFS)--if the action agency may affect a listed species. The consulting agency then issues a biological opinion (BiOp) which states whether a critical habitat of a listed species will be jeopardized. The consulting agency may also issue an incidental take statement (ITS) if the action may incidentally take a threatened or endangered species. Through this consultation process, FWS issued a BiOp in 1994 that stated that MLFF jeopardized the humpback chub and recommended adoption of an adaptive management program (AMP). (288) This AMP process resulted in BOR's 2008 Experimental Plan (2008 Plan). Following additional formal consultation, FWS issued a new BiOp (2008 BiOp) reversing FWS's previous jeopardy position expressed in the 1994 BiOp. This reversal prompted the Trust to file suit in the District of Arizona. (289)

    The district court granted summary judgment to BOR, concluding that the ESA and NEPA do not apply because AOPs are neither agency actions nor major federal actions. Although the district court recognized that part of the 2008 BiOp was valid, it invalidated FWS's reversal of its MLFF jeopardy position. The district court found FWS's reversal invalid because FWS did not include a reasoned basis explaining why MLFF would not destroy or adversely modify critical habitat for the humpback chub and because FWS's conclusion lacked a discussion on the effects of MLFF on chub recovery.

    In response to the district court's ruling, FWS issued a 2009 Supplement to the 2008 BiOp that resulted in a 2009 BiOp. The Trust then filed a supplemental complaint containing the following three claims: 1) "the 2009 BiOp and the 2009 ITS violate the ESA; 2) the 2009 ITS violates NEPA; and 3) FWS's draft 2009 Recovery Goals, on which FWS relied to address humpback chub recovery in the 2009 BiOp, violate the ESA." (290) The district court granted summary judgment to FWS on all counts except for the claim regarding the 2009 ITS, on which it granted summary judgment to the Trust. Again in 2010, FWS issued a 2010 ITS to supplement its other documents. The Trust then appealed to the Ninth Circuit. Before this appeal was heard, FWS issued a 2011 BiOp and 2011 ITS.

    The Ninth Circuit reviewed the district court's grant of summary judgment and decision on subject matter jurisdiction de novo. (291) The court reviewed BOR and FWS's compliance with the ESA and NEPA under the APA's arbitrary and Capricious standard. (292)

    As an initial matter, the Ninth Circuit held that all issues relating to the 2009 BiOp and 2010 ITS were rendered moot by FWS's issuance of the 2011 BiOp and 2011 ITS. (293) Beyond this threshold issue, the court confirmed the district court's ruling that BOR's decision not to consult with FWS under the ESA did not violate APA standards because BOR had no discretion to act for the benefit of the humpback chub under the AOP process itself. The court based this conclusion on two rationales.

    First, the court explained the general rule that consultation is only required when there is "discretionary Federal involvement or control." (294) The court found that BOR does not have the discretion to select different operating criteria for the Dam simply in an AOP. (295) Rather, BOR's discretionary decision-making process lies in its establishment of operating criteria for the Dam, such as using MLFF. After concluding that the 2008 AOP's purpose was merely informational, (296) the Ninth Circuit held that BOR did not violate the ESA by issuing each AOP without formally consulting with FWS because BOR did not exercise discretion in preparing each AOP. (297)

    Second, the court referred to Ninth Circuit precedent in California Sportfishing Protection Alliance v. Federal Energy Regulatory Commission (California Sportlishing) (298) as an example of nondiscretionary agency action. In California Sportfishing, the Ninth Circuit held that while ESA consultation was properly undertaken prior to issuance of an operating permit for a hydroelectric dam, mere continued operation of the dam did not require regular consultation regarding newly listed species. Consistent with California Sportfishing, the Ninth Circuit found that BOR's yearly issuance of AOP is not an agency action because BOR fully complied with ESA consultation requirements prior to the Secretary choosing MLFF. The Ninth Circuit also noted it would be unduly cumbersome and unproductive to allow ESA challenges on an annual basis for each AOP.

    The Ninth Circuit next addressed the Trust's contention that BOR violated NEPA by not preparing an EIS for each AOP. The Ninth Circuit concluded that AOPs are not major federal actions for which an EIS must be prepared under NEPA. The court specifically noted "where a proposed federal action would not change the status quo, an EIS is not necessary." (299) Since the fluctuations in flow were routine managerial actions, BOR did not have to comply with NEPA's requirement for an EIS. Additionally, the Ninth Circuit stated that BOR was not making material changes to the operating criteria for the Dam.

    Finally, the court addressed the Trust's contention that the district court did, in fact, have jurisdiction to review the Draft 2009 Recovery Goals for the humpback chub. The Ninth Circuit affirmed the district court's ruling for two reasons. First, the draft 2009 Recovery Goals were moot because there was no jurisdiction under either the citizen suit provision of the ESA (300) or under the APA (301) for review. The court reasoned that FWS, pursuant to its discretion, used the Draft 2009 Recovery Goals as best available science. The Ninth Circuit concluded that no jurisdiction existed because FWS did not fail to carry out a nondiscretionary act prior to using the science included in the draft 2009 Recovery Goals to support its 2009 BiOp. Second, the issue of whether the APA supports review of the Draft 2009 Recovery Goals was moot because the document was no longer operative as a result of the 2011 BiOp. The Ninth Circuit ultimately vacated the judgment of the district court with regard to the 2009 BiOp and 2010 ITS.

19. Native Village of Kivalina IRA Council v. U.S. Environmental Protection Agency, 687 F.3d 1216 (9th Cir. 2012).

    The Native Village of Kivalina IRA Council and other plaintiffs (collectively, Ki'valina) (302) filed suit under the Administrative Procedure Act (APA) (303) against the United States Environmental Protection Agency (EPA). Kivalina alleged that EPA's Environmental Appeals Board (EAB) improperly denied review (305) of a National Pollutant Discharge Elimination System permit (NPDES, or a section 404 permit) finalized by EPA Region 10. The United States Court of Appeals for the Ninth Circuit affirmed the EAB's decision to deny review of EPA's decision to grant the NPDES permit to Teck Alaska.

    Teck Alaska, in partnership with NANA Regional Corporation, operates an open pit zinc and lead mine, known as the Red Dog Mine, in Northwestern Alaska. Mining operations at that mine caused discharge of contaminated wastewater into a river that flows into the Chukchi Sea. (306) EPA planned to reissue a NPDES permit in 2008 with conditions different than the company's previous NPDES permit. In late 2009, EPA completed a final supplemental environmental impact statement under the National Environmental Policy Act (NEPA) (307) and responded to public comments. In January 2010, EPA issued a final NPDES permit, and shortly thereafter, Kivalina challenged specific conditions of this permit by appeal to the EAB. EPA withdrew several permit conditions, thereby mooting appeal of all but one section of Kivalina's petition for appeal.

    The sole issue in this case was whether EAB's denial of review for three monitoring conditions in the final NPDES permit was improper under the APA as either arbitrary, capricious, an abuse of discretion, or otherwise not in...