Natural Resources Defense Coun v. Kenneth Salazar
749 F.3d 776
| 9th Cir. | 2014Background
- This is an en banc Ninth Circuit case interpreting ESA Section 7(a)(2) and consultation requirements.
- The Bureau of Reclamation renewed long-term water contracts for California's Central Valley Project, including Delta-Mendota Canal (DMC) Contracts and Sacramento River Settlement Contracts (Settlement Contracts).
- The delta smelt, a threatened species, is adversely affected by delta water diversions and was listed under the ESA in 1993, with findings that diversions are a major decline factor.
- In 2004 and 2005, the FWS issued opinions concluding renewal would not jeopardize the delta smelt; these opinions were later invalidated.
- The Bureau renewed hundreds of contracts based on FWS concurrence letters, and in 2008 the FWS issued a revised Biological Opinion finding that the Plan would jeopardize the delta smelt and adversely modify its habitat.
- Plaintiffs challenged the renewals under Section 7(a)(2), arguing inadequate consultation; the district court granted summary judgment for defendants and held lack of standing and mootness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness after 2008 Opinion | NRDC contends case not moot; relief requires reconsultation and contract renegotiation. | Defendants assert intervening events moot the procedural challenge. | Not moot; relief available via reconsultation and renegotiation. |
| Standing to challenge DMC Contracts | Delta smelt interests are affected by the contracts, satisfying procedural standing. | Shortage provision severs causation between contracts and delta smelt injury. | Standing exists; the shortage provision is permissive and does not preclude relief. |
| Standing to challenge Settlement Contracts | NRDC has procedural standing to challenge renewal under Section 7(a)(2). | Discretion to renegotiate is “substantially constrained,” so no consult requirement. | Procedural standing and consult requirement apply; some discretion to benefit delta smelt existed. |
| Section 7(a)(2) Consultation Requirement for Settlement Contracts | Agency must consult if it retains any discretion to aid a protected species. | Discretion limited by contract terms; no need to consult. | Consultation required; agency retained some discretion to benefit delta smelt. |
Key Cases Cited
- Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006 (9th Cir. 2012) (requires consultation where agency has some discretion to aid a protected species)
- Tenn. Valley Auth. v. Hill, 437 U.S. 153 (U.S. 1978) (ESA priority over agency missions; jeopardy standard)
- Turtle Island Restoration Network v. NMFS, 340 F.3d 969 (9th Cir. 2003) (standards for consultation and jeopardy analysis)
- Ground Zero Ctr. for Non-Violent Action v. U.S. Dep’t of the Navy, 383 F.3d 1082 (9th Cir. 2004) (necessity of discretionary action to benefit protected species)
- Nat’l Wildlife Fed’n v. NMFS, 524 F.3d 917 (9th Cir. 2008) (consultation required if agency can comply with ESA and other statutes)
- Defenders of Wildlife v. U.S. Envtl. Prot. Agency, 420 F.3d 946 (9th Cir. 2005) (procedural injury standing for Section 7(a)(2) violations)
- Home Builders Ass’n v. Defenders of Wildlife, 551 U.S. 664 (U.S. 2007) (limits on interpreting statutes with competing obligations)