102 F.4th 1045
9th Cir.2024Background
- The dispute concerns the Bureau of Reclamation’s renewal of long‑term water contracts for the Central Valley Project (CVP): 40‑year Sacramento River Settlement Contracts and 30‑year Delta‑Mendota Canal (DMC) contracts, and whether federal ESA consultation obligations were satisfied.
- Reclamation and the resource agencies used a two‑track consultation: a programmatic first‑track for CVP/SWP operations (OCAP) and discrete second‑track consultations for specific contract renewals.
- FWS issued an OCAP biological opinion in 2008 (finding jeopardy absent RPAs but providing RPAs to avoid jeopardy). In December 2015 FWS issued letters of concurrence for contract renewals that incorporated the 2008 OCAP analysis.
- NRDC sued, alleging (among other things) that FWS’s 2015 concurrence improperly relied on the 2008 OCAP opinion (violating the APA and ESA), that Reclamation unlawfully relied on that concurrence, and that Reclamation should have reinitiated consultation with NMFS for Chinook salmon.
- The district court granted summary judgment to defendants; the Ninth Circuit majority affirmed on all appealed claims (and rejected mootness arguments about converted DMC contracts). Judge Gould partially concurred but would have found error as to the Settlement Contracts on two points (time horizon/2045 and reinitiation for Chinook).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of 12 converted DMC contracts | Conversion to repayment contracts moots NRDC’s challenge to the original DMC contracts because relief would be ineffective | Conversion did not eliminate continuing harms and WIIN Act preserves other contractual rights; equitable relief still possible | Not moot — NRDC may obtain effective relief; defendants didn’t meet heavy mootness burden |
| Adequacy of FWS’s 2015 concurrence re: delta smelt (reliance on 2008 OCAP) | FWS unlawfully relied on the 2008 OCAP BP because Jewell held OCAP didn’t substitute for contract‑specific consultation; second‑track concurrence inadequate | Jewell requires second‑track consultation but does not forbid tiering to a valid OCAP opinion; 2015 concurrence explained and incorporated 2008 analysis and supplemental data | Affirmed — FWS permissibly relied on and tiered to the 2008 OCAP opinion; 2015 concurrence was not arbitrary or capricious |
| Best scientific data / new evidence (MAST, surveys, testimony) | FWS ignored/new evidence showing severe declines and importance of outflows; failed to use best available science | FWS considered the supplemental materials (Status of the Species, MAST data, surveys) and discussed those findings; plaintiff must show ignored data would materially alter the result | Affirmed — FWS considered the evidence; plaintiff did not show ignored data would have changed the outcome |
| Temporal scope: failure to analyze Settlement Contracts through 2045 | FWS’s reliance on CalSim II (planning horizon to 2030) meant FWS failed to analyze the full 40‑year settlement contract term (ends 2045) | The OCAP first‑track considered the ongoing CVP/SWP operation (including full effect of 40‑year contracts) despite model horizon; second‑track may tier to that analysis | Majority: Affirmed — 2008 OCAP sufficed for full‑term effects; Dissent (Gould): would reverse as FWS failed to analyze full 2045 horizon |
| Reinitiation duty for Chinook salmon (fifth claim) | New information (2009 NMFS opinion, 2014–15 drought impacts, deviations from D‑1641) required Reclamation to reinitiate consultation because it retained discretion under Settlement Contracts | The Settlement Contracts’ terms (shortage clauses, liability limits, allocation provisions) do not leave Reclamation discretion to implement measures that inure to species’ benefit; mandatory legal obligations do not create discretion | Affirmed dismissal — Reclamation lacked contractual discretion to implement measures benefitting Chinook; no duty to reinitiate (Judge Gould would have found sufficient discretion) |
Key Cases Cited
- Nat. Res. Def. Council v. Jewell, 749 F.3d 776 (9th Cir. 2014) (en banc) (agency retained "some discretion" in contract renewals; consultation required)
- San Luis & Delta‑Mendota Water Auth. v. Locke, 776 F.3d 971 (9th Cir. 2014) (upholding NMFS OCAP biological opinion and deference to agency scientific determinations)
- Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059 (9th Cir. 2004) (invalidating regulation relied on in an earlier biological opinion)
- Conner v. Burford, 848 F.2d 1441 (9th Cir. 1988) (biological opinion must analyze the effect of the entire agency action)
- Wild Fish Conservancy v. Salazar, 628 F.3d 513 (9th Cir. 2010) (agency cannot artificially segment long‑running actions into short timeframes)
- Turtle Island Restoration Network v. U.S. Dep’t of Commerce, 878 F.3d 725 (9th Cir. 2017) (upholding a multidecade analysis where data constraints made longer projections reasonable)
- Envtl. Prot. Info. Ctr. v. Simpson Timber Co., 255 F.3d 1073 (9th Cir. 2001) (reinitiation obligation depends on whether agency retained contractual discretion to implement beneficial measures)
- Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644 (2007) (section 7(a)(2) applies only to discretionary federal actions)
- Defenders of Wildlife v. Zinke, 856 F.3d 1248 (9th Cir. 2017) (action agency may rely on a valid resource‑agency biological opinion)