Natural Resources Defense Council v. Salazar

Jul 17: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-17661. Appealed from the United States District Court for the Eastern District of California. In this split decision involving the renewal of forty-one water supply contracts by the United States Department of Interior, Bureau of Reclamation the majority affirms the district court in determining that the contracts do not violate § 7(a)(2) of the Endangered Species Act and illegally threatens the existence of the delta smelt.

 

    The delta smelt is a small fish endemic to the San Joaquin and Sacramento Rivers Delta Estuary which was declared endangered by the United States Fish and Wildlife Service under the Endangered Species Act in 1993. Though previously

abundant, the population of the delta smelt has diminished markedly in the last several decades.

 

    Plaintiffs, Natural Resources Defense Council (NRDC) and several conservation groups, argue that in 2005 the United States Bureau of Reclamation (Bureau) renewed forty-one water service contracts with various water users without conducting an adequate consultation under § 7(a)(2) of the Endangered Species Act and that the contracts jeopardize the existence of the delta smelt. The contracts at issue fall into two groups: (1) users who obtain water from the Delta-Mendota Canal (DMC Contractors); and (2) parties who claim to hold water rights senior to those held by the Bureau with regard to the Central Valley Project (CVP) and who previously entered into settlement contracts with the Bureau (Settlement Contractors).

 

    Plaintiffs argue that the district court erred in holding that they did not have standing to challenge the DMC contracts. The majority Appeals Court determined, "Even under a substantive claim analysis for standing, which imposes a higher burden than a procedural analysis, plaintiffs' claim fails because they cannot show causation. . . Thus, the district court properly determined that plaintiffs lack standing to challenge the DMC contracts under both a procedural and a substantive claim analysis."

 

    Additionally, the majority ruled, ". . .the Bureau's discretion is limited with regard to the Settlement Contracts so that § 7(a)(2) of the ESA is not triggered. The Bureau's hands are tied historically by those asserting senior water rights in the CVP. The Bureau was required to acknowledge such rights in order to operate the CVP, which it did by entering the Settlement Contracts. We agree with the district court . . ."

 

    The dissenting justice said, "I respectfully dissent. I agree with the majority that this case is not moot. I disagree with the majority's holdings that the plaintiffs lack standing to challenge the Bureau's renewal of the Delta-Mendota Canal (DMC) contracts and that § 7(a)(2) of the Endangered Species Act ("ESA"), 16 U.S.C. § 1536(a)(2), does not apply to the United States Bureau of Reclamation's (Bureau) renewals of the Sacramento River Settlement ("SRS") contracts. Accordingly, I would reverse the district court's grant of summary judgment to the defendants and remand for further proceedings."

 

    Access the complete opinion and dissent (click here). [#Wildlife, #Water, #CA9]

 

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