Mar 5: 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 a brief decision, the Appeals Court indicated, "Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35–3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit. Judges Berzon and Ikuta did not participate in the deliberations or vote in this case."
In this high profile case involving the renewal of forty-one water supply contracts by the United States Department of Interior, Bureau of Reclamation, a split Appeals Court in July 2012, affirmed a district court decision determining that the contracts do not violate § 7(a)(2) of the Endangered Species Act and illegally threaten the existence of the delta smelt. The majority Appeals Court said, ". . .the district court properly determined that plaintiffs lack standing to challenge the DMC [Delta-Mendota Canal] contracts under both a procedural and a substantive claim analysis."
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, argued 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 dissenting justice said, "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 latest ruling to hear the case en banc (click here). Access the complete original opinion and dissent (click here). [#Wildlife, #Water, #CA9]
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