Wednesday, September 8, 2010

Modesto Irrigation District v. Gutierrez

Aug 20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-15214. This Endangered Species Act (ESA) case is a challenge to the decision of the National Marine Fisheries Service (NMFS) to list the steelhead, a type of Pacific salmon, as a threatened species in California's Central Valley. In listing the steelhead, NMFS defined it as a distinct species under the ESA, separate from rainbow trout, another type of Pacific salmon that breeds with and looks like the steelhead. The separate listing was a departure from the prior NMFS policy of classifying interbreeding Pacific salmon as a single species.
    Plaintiffs are irrigation districts in California's Central Valley whose operations are impeded by the listing. They contend that the listing violated the ESA because steelhead and rainbow trout interbreed, and the statute therefore requires NMFS to treat them as a single species. Plaintiffs also contend that NMFS violated the Administrative Procedure Act (APA) by failing adequately to explain its decision to adopt a new policy for classifying the fish.
    The Appeals Court said, "We agree with the district court that under the ESA, interbreeding is not alone determinative of whether organisms must be classified alike where, as here, they develop and behave differently. We also find that NMFS' explanation for its change of policy satisfies the standards set forth in the Supreme Court's recent decision in F.C.C. v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009). We therefore affirm."
    In its conclusion the Appeals Court said, "The two narrow issues before this panel involve first a question of statutory interpretation and second, whether an agency provided an adequate justification for a policy change. We agree with the district court that the definition of "species" in the ESA did not require NMFS to place interbreeding steelhead and rainbow trout in the same DPS. We further hold that, under the Supreme Court's decision in Fox, NMFS sufficiently justified its decision to apply the DPS Policy to O.mykiss. We therefore affirm the district court."
    Access the complete opinion (click here).

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