Grand Canyon Trust v. U.S. Bureau of Reclamation

Aug 13: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-16326. Appealed from the United States District Court for the District of Arizona. The Appeals Court explains that Grand Canyon Trust appeals the district court's grant of summary judgment in favor of the United States Bureau of Reclamation (Reclamation) and the United States Fish and Wildlife Service (FWS) rejecting the Trust's claims alleging that Reclamation and FWS violated the Endangered Species Act (ESA), the National Environmental Policy Act and the Administrative Procedure Act in the operation of the Glen Canyon Dam. The Appeals Court dismissed the appeals as "moot in part and affirm in part."

 

    Grand Canyon Trust (the Trust) is an organization devoted to the protection and restoration of the canyon country of the Colorado Plateau. Reclamation and FWS are agencies within the Department of the Interior. Reclamation is responsible for the operation of the Glen Canyon Dam (the Dam) situated on the Colorado River, and FWS is responsible for the protection of the humpback chub, a fish that exists primarily in the relatively inaccessible canyons of the Colorado River and that is listed as endangered under the Endangered Species Act (ESA). Intervenor-Appellees in the case are the seven Colorado River Basin States of Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming; the Colorado River Commission of Nevada; the Southern Nevada Water Authority; the Colorado River Energy Distributors Association; the Central Arizona Water Conservation District; the Imperial Irrigation District; and the Metropolitan Water District of Southern California (collectively, Intervenors).

 

    The case has an extremely complicated history (too lengthy to adequately explain here), but leads to the Trust filing this appeal raising issues: (1) whether the 2009 BiOp [biological opinion] is unlawful under the ESA; (2) whether the court has jurisdiction to review the 2009 Recovery Goals; (3) whether Reclamation violates the ESA by relying on the 2009 BiOp; (4) whether FWS's 2010 ITS [incidental take statement] is unlawful; (5) whether Reclamation violates the ESA by relying on the 2010 ITS; and (6) whether Reclamation must comply with the ESA and with NEPA procedures before issuing an AOP [annual operating plans]. The Appeals Court concludes on a number of issues:

• "Defendants-Appellees argue, and the Trust concedes, that the Trust's claims related to the 2009 BiOp and the 2010 BiOp are now moot. We agree. The Trust's claims that the 2009 BiOp is unlawful under the ESA; that Reclamation violates the ESA by relying on the 2009 BiOp; that the 2010 ITS is unlawful; and that Reclamation violates the ESA by relying on the 2010 ITS are moot."
• "we conclude that the issue of whether the district court similarly lacks jurisdiction under the APA to review the draft 2009 Recovery Goals is moot."
• "we hold that the issue of whether the APA supports review of the draft 2009 Recovery Goals as used in the 2009 BiOp is also moot."
• "Because Reclamation used the draft 2009 Recovery Goals as best available science, a discretionary use, the district court concluded that it lacked jurisdiction to consider the draft 2009 Recovery Goals under the ESA citizen suit provision. We agree."
• "We conclude that the ESA citizen suit provision does not support jurisdiction here because FWS did not fail to perform a non-discretionary act before using the science incorporated in the draft 2009 Recovery Goals to support its 2009 BiOp."
• "Finally, we vacate the judgment of the district court with respect to the 2009 BiOp and the 2010 ITS. . ."

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

 

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