Case summaries.

• Position: II. Animals through III. Constitutional Issues, with footnotes, p. 758-791 - 2014 Ninth Circuit Environmental Review

2. ANIMALS

   1. Endangered Species Act

      1. San Luis & Delta-Mendota Water Authority v. Jewell, 747 F.3d 581 (9th Cir. 2014).

         San Luis & Delta-Mendota Water Authority, along with various water districts, water contractors, and agricultural consumers (collectively, San Luis), (152) sued various federal officials and agencies (collectively, Federal Defendants), (153) seeking to enjoin the implementation of a 2008 Biological Opinion (2008 BiOp). The 2008 BiOp addressed the impact of California's water projects on the endangered delta smelt (Hypomesus transpacificus). The United States District Court for the Eastern District of California entered an order invalidating the 2008 BiOp. On appeal, the Ninth Circuit held that the 2008 BiOp was valid, but that the United States Bureau of Reclamation (BOR) had failed to comply with the National Environmental Policy Act (NEPA) (154) by not preparing an environmental impact statement. Therefore, the Ninth Circuit affirmed in part, reversed in part, and remanded.

         Although the case presents a long and complex factual history, the issue arises from the simple fact that 70% of the water in California originates north of Sacramento, while 70% of the demand is in the south of the state. Because of this tension, California and the federal government run two large water projects to transfer water from the northern parts of the state to the central and southern parts of the state. BOR runs the Central Valley Project (CVP), which is the largest federal water project in the country. California runs the State Water Project (SWP), the largest state-run project in the country.

         Because both the CVP and SWP have major water-pumping stations near the Bay-Delta estuary (Delta), the two water projects significantly affect fish within the Delta. While both stations have louvers to prevent fish from entering the pumping stations, fish still enter in a process known as entrainment. While some entrained fish are salvaged and transported to a nearby river, smaller fish--especially those in their juvenile or larval stage--are killed by the pumps. Additionally, as water is diverted from the Delta, the salinity of the Delta and surrounding estuaries increases due to saltwater intrusion from the San Francisco Bay.

         Pursuant to the Endangered Species Act of 1973 (ESA), (155) BOR sought a biological opinion concerning the CVP and SWP and their effects on the delta smelt. The delta smelt is a small, two-to-three inch fish listed as an endangered species--in 2008, the delta smelt population was estimated at 1.5% of its total from 1980. The United States Fish and Wildlife Service (FWS) conducted the BiOp in 2005 and found that the continuing operation of the CVP and SWP would not negatively impact the health and recovery of the smelt or its habitat. However, in subsequent litigation, the National Resources Defense Council successfully challenged the 2005 BiOp as arbitrary and capricious. As a result, FWS entered a new BiOp in 2008, which found that the operations of the CVP and SWP operations "are likely to jeopardize the continued existence of the delta smelt and adversely modify delta smelt critical habitat." (156)

         FWS included five components within its 2008 BiOp. Two of them form the basis for the litigation here. First, the 2008 BiOp required that the CVP and SWP maintain certain average river flows for the Old and Middle Rivers (OMR) during those parts of the year when delta smelt are found in the salvage facilities. Second, the CVP and SWP were required to provide sufficient outflow in the fall to improve delta smelt habitat. As noted above, United States District Court for the Eastern District of California found these components to be arbitrary and capricious.

         On appeal, the Ninth Circuit applied several standards of review. First, it reviewed the lower court's ruling on summary judgment de novo. Second, the court reviewed the ESA and NEPA claims under the arbitrary, capricious, or abuse of discretion standard. Third, the court acknowledged that FWS must base its determination of the ESA claims on the "best scientific and commercial data available." (157) The court noted its traditional deference to agency expertise in this determination, but explained that the agency could not rely on incomplete or insufficient evidence if superior information was available. Finally, the Ninth Circuit noted that its review was confined to the administrative record, and that the trial court erred by allowing outside experts, employed for background understanding, to debate the merits of the 2008 BiOp.

         In deciding the case, first the Ninth Circuit held that the 2008 BiOp's reliance on raw salvage figures to set upper and lower flow limits was not arbitrary or capricious. When flow rates are too high, the flow of the river reverses, fish are entrained, and some are killed in the pumps. The 2008 BiOp imposed limits on these negative flows between 1,250 and 5,000 cubic feet per second, depending on the number of delta smelt salvaged. San Luis contended that the use of raw data, rather than normalized data, did not take into account the relative size of the delta smelt population. While the district court agreed, the Ninth Circuit found three errors in the district court's conclusion. First, the Ninth Circuit noted that the more conservative model was based on substantial evidence. FWS based its decision to use raw data on a determination that the maximum number of entrained fish affects the long-term viability of the species. Second, the Ninth Circuit explained that the 2008 BiOp based its flow limits on multiple sources of data. Whereas the district court held that the 2008 BiOp confined its analysis to two specific charts, the Ninth Circuit held that the 2008 BiOp relied on other studies and models to come to its conclusion. Finally, the Ninth Circuit reasoned that the flow limits were just one component of a dynamic monitoring system. The flow limits work in tandem with the Incidental Take Statement (ITS) (158) to form a complex and dynamic system that accounts for the overall delta-smelt population. Therefore, the Ninth Circuit concluded that FWS's decision to use raw data was not arbitrary or capricious.

         The Ninth Circuit next held that FWS's recommendation that BOR and the California Department of Water Resources (DWR) provide sufficient delta outflow to maintain X2's location no more than seventy-four kilometers eastward from the Golden Gate in wet years and eighty-one kilometers eastward in above normal years was not arbitrary or capricious. (159) The Ninth Circuit deferred to this determination for two reasons.

         First, the Ninth Circuit held that FWS's scientific determination to use both Dayflow (160) and Calsim II (161) was entitled to deference. FWS relied on these two computer models to determine the CVP and SWP's effect on the location of X2. San Luis argued that FWS should have made a Calsim II to Calsim II comparison. While the Ninth Circuit recognized that under ideal circumstances FWS would have more thoroughly addressed possible issues from its choice to use both computer models, the Ninth Circuit held that an explanation of every potential issue was not required to support FWS's decision.

         Second, the Ninth Circuit held that FWS's determination of X2's location was based on ample evidence in the record. The 2008 BiOp explained that X2's upstream shift due to the CVP and SWP's removal of fresh water in the fall caused a decrease in habitat area for the delta smelt. FWS used Dayflow and Calsim II to compare X2's median historic location to the median projected location. The 2008 BiOp also considered natural and manmade factors affecting X2's location, as well as factors that result in less suitable delta smelt habitat. The district court held that FWS needed to explain why X2's location should be maintained at a range of seventy-four kilometers to eighty-one kilometers from the Golden Gate. However, the Ninth Circuit held that FWS did not need to explain the decided range for X2's target location beyond what was presented in the record.

         The Ninth Circuit next held that FWS's use of differing data sets was not arbitrary or capricious. FWS prepared an ITS that set take limits for larval/juvenile delta smelt and adult delta smelt. The ITS explained that FWS used data from 2006-2008 for adult delta smelt and 2005-2008 for juvenile delta smelt because those years best approximated expected salvage. FWS chose to incorporate an additional year of data on larval/juvenile delta smelt because apparent abundance was the lowest on record starting in 2005 and there was greater uncertainly in calculating juvenile incidental take. The district court held that the ITS was arbitrary and capricious because FWS did not explain its decision to use different data sets for the separate limits. However, the Ninth Circuit held that the ITS adequately explained the use of separate data sets to determine limits for juvenile and adult delta smelt and that FWS had discretion to use a more conservative data set to determine the juvenile take limit.

         The Ninth Circuit next held that FWS's decision to use an average cumulative salvage index to create its Concern Level fell within the agency's discretion and was therefore entitled to substantial deference. The Concern Level indicates when salvage levels approach the take threshold, and reaching that threshold could trigger restrictions in OMR flows based on recommendations from the Smelt Working Group. FWS explained that averaging counteracts the uncertainties inherent in its analyses and leads to more conservative data. The district court determined that FWS failed to explain its use of an average cumulative salvage index to set the Concern Level. The Ninth Circuit held that FWS's decision to use an average cumulative salvage index to create its Concern Level fell within the agency s discretion and was therefore entitled to substantial deference.

         The Ninth Circuit next held...