Grand Canyon Trust v. United States Bureau of Reclamation
691 F.3d 1008
9th Cir.2012Background
- Grand Canyon Trust appeals a district court grant of summary judgment in favor of Reclamation and FWS on ESA, NEPA, and APA claims about Glen Canyon Dam operations.
- Reclamation operates the Glen Canyon Dam on the Colorado River; FWS protects the humpback chub, an ESA-listed species.
- MLFF (maximally long fluctuating flow) was selected as operating criteria in 1996; SASF (seasonally-adjusted steady flow) was considered as an alternative.
- 1994 BiOp found MLFF jeopardized the humpback chub; 2008 BiOp superseded 1994 BiOp and assessed MLFF under AMP with a 2008 Plan and 2009/2010 ITS considerations.
- 2011 BiOp and 2011 ITS superseded prior opinions, covering operation through 2020; Trust challenges to 2009/2010 documents become moot.
- Court holds AOPs describe ongoing operation under established criteria and do not constitute ESA/NEPA “major federal action” or require ESA/NEPA consultation for each year.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do annual AOPs trigger ESA consultation? | Trust argues AOPs are agency actions affecting chub and require consultation. | Reclamation's AOPs merely describe ongoing MLFF operation; no discretionary action benefiting chub. | AOPs do not trigger ESA consultation. |
| Does NEPA require an EA/EIS for each AOP? | Trust contends NEPA applies to annual AOP changes. | AOPs are routine descriptions under MLFF and not major federal actions; no NEPA review required. | NEPA review not required for annual AOPs. |
| Was the 2009 Recovery Goals reviewable under the ESA citizen-suit or APA? | Draft 2009 Recovery Goals should have been publically noticed and peer reviewed before use in the 2009 BiOp. | Use of draft goals as best available science is discretionary; citizen suit/APA review not available for nonfinal goals. | Claims moot; district court lacked jurisdiction to review draft goals; vacatur ordered for related BiOp/ITS issues. |
| Did subsequent superseding BiOp/ITS moot earlier challenges to prior BiOps? | Trust maintains ongoing challenges to earlier BiOps remain live. | Superseding 2011 BiOp and ITS mooted issues relating to 2009/2010 opinions. | Yes, moot to the extent challenged before superseding BiOp/ITS. |
Key Cases Cited
- National Association of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (U.S. Supreme Court 2007) (ESA consultation scope limited to discretionary agency actions)
- Karuk Tribe of Cal. v. United States Forest Serv., 681 F.3d 1006 (9th Cir. 2012) (en banc; best data and agency discretion in consultation analysis)
- California Sportfishing Protection Alliance v. Federal Energy Regulatory Commission, 472 F.3d 593 (9th Cir. 2006) (agency action concept and ongoing permitting context; ESA consultation not required for ongoing permits)
- Upper Snake River Chapter of Trout Unlimited v. Hodel, 921 F.2d 232 (9th Cir. 1990) (NEPA requires EIS for major changes; routine actions may avoid EIS)
- Marbled Murrelet v. Babbitt, 83 F.3d 1068 (9th Cir. 1996) (NEPA/ESA standards; distinction between major federal action and agency action)