San Luis & Delta-Mendota Water v. Pacific Coast Federation Etc.
776 F.3d 971
| 9th Cir. | 2014Background
- The Bureau of Reclamation (Reclamation) and California Dept. of Water Resources operate the Central Valley Project (CVP) and State Water Project (SWP), which divert Delta flows via the Jones and Banks pumping plants to supply water to agriculture and cities.
- NMFS issued a 2009 Biological Opinion (BiOp) concluding CVP/SWP long-term operations likely jeopardize several listed species (winter-/spring-run Chinook, Central Valley steelhead, green sturgeon, Southern Resident orca) and recommended ~70+ Reasonable and Prudent Alternatives (RPAs) to reduce harm.
- Key RPAs regulated Old and Middle River negative flows, set Vernalis flow-to-export ratios (e.g., 4:1 in wet years), salvage-efficiency targets, and Stanislaus River flow/temperature and floodplain measures to protect salmonid habitat and migration cues.
- Water contractors and districts (Plaintiffs) challenged the BiOp under the APA and ESA, claiming arbitrary and capricious reasoning, improper use of raw (unscaled) salvage data, failure to apply best available science, and inadequate RPA justification. District court struck several BiOp components and admitted extra-record expert declarations.
- Ninth Circuit held the district court abused its discretion by overusing extra-record evidence, applied proper APA deference to NMFS scientific judgments, and—on independent review—reversed most district-court invalidations, upholding the BiOp in its entirety and remanding for judgment for defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of extra-record evidence in APA review | District court properly supplemented record under Lands Council exceptions to test agency analysis | District court exceeded Lands Council; extra-record experts impermissibly substituted for agency science | Reversed: district court abused discretion; review limited to administrative record except narrow exceptions |
| Use of raw salvage data (unscaled to population) to set Old/Middle River flow triggers | Using unscaled raw salvage data violates best-available-science; must scale to population | NMFS had discretion to choose model, supported choice with PTM models, studies, and ITS population scaling | Affirmed: NMFS reasonably used raw salvage data in tandem with other models and ITS population accounting |
| Jeopardy findings for specific species (winter-run Chinook, Southern Resident orca, steelhead critical habitat, indirect mortality) | BiOp mischaracterized risk levels, failed to reconcile other BiOps, and lacked supporting linkage between operations, invasives, and harms | NMFS considered relevant studies, distinguished timeframes across BiOps, and provided record support for habitat/gravel and indirect-mortality causal links | Affirmed: challenged jeopardy components were not arbitrary or capricious |
| RPA legal sufficiency (need to show each action is "essential" and to document §402.02 non-jeopardy factors) | RPAs invalid because NMFS failed to explain each action’s essentiality and to document feasibility/economic/authority factors | Regulations define RPAs; NMFS need not explain why each RPA is uniquely essential or pre-document non-jeopardy factors unless those factors are at issue | Reversed: NMFS not required to show each RPA is "essential" or pre-justify all non-jeopardy factors; RPAs upheld as reasonably supported |
Key Cases Cited
- Lands Council v. Powell, 395 F.3d 1019 (9th Cir. 2004) (limited exceptions permitting supplementation of the administrative record)
- San Luis & Delta-Mendota Water Authority v. Jewell (Delta Smelt), 747 F.3d 581 (9th Cir. 2014) (deference to agency scientific choices; limits on extra-record evidence)
- Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989) (deference to agencies on technical/scientific matters)
- Bennett v. Spear, 520 U.S. 154 (1997) (BiOp and reasonable and prudent alternatives framework under ESA §7)
- Motor Vehicle Manufacturers Ass'n v. State Farm, 463 U.S. 29 (1983) (arbitrary and capricious standard requires reasoned explanation)
- Camp v. Pitts, 411 U.S. 138 (1973) (review limited to administrative record)
- Asarco, Inc. v. EPA, 616 F.2d 1153 (9th Cir. 1980) (agency action examined by scrutinizing administrative record)