San Luis & Delta-Mendota Water Authority v. Locke

Summary

The Ninth Circuit reviewed challenges to a 2009 Biological Opinion issued by the National Marine Fisheries Service under the Endangered Species Act concerning the effects of Central Valley water operations on threatened and endangered species. The court held that the district court improperly relied on extra-record evidence and failed to give the agency the substantial deference required under the Administrative Procedure Act. It upheld the Biological Opinion in its entirety and remanded for entry of summary judgment in favor of the federal defendants and intervenor-environmental groups.

Holdings

1. The district court abused its discretion by admitting extra-record declarations beyond the narrowly construed Lands Council exceptions and using them to substitute expert analysis for NMFS's scientific analysis.
2. NMFS acted within its substantial discretion by using raw salvage data, together with other studies and population-based incidental-take data, to establish flow restrictions.
3. The challenged components concerning winter-run Chinook, Southern Resident orcas, steelhead critical habitat, and indirect mortality factors were not arbitrary or capricious.
4. The ESA and its implementing regulations do not require NMFS to explain why each reasonable and prudent alternative is essential, to select the best alternative, or to fully document compliance with each non-jeopardy factor in 50 C.F.R. § 402.02.
5. The record adequately supported Actions IV.2.1, IV.2.3, IV.3, IV.4.2, III.1.2, III.1.3, and III.2.2, and those actions were not arbitrary or capricious.
6. NMFS was not required to segregate discretionary and nondiscretionary aspects of coordinated project operations when establishing the environmental baseline.
7. The mortality factors identified in the Biological Opinion were direct effects of the project operations, not indirect effects under 50 C.F.R. § 402.02.
8. The challenge asserting that Reclamation was independently liable under the ESA was dismissed because it depended on the alleged legal invalidity of the Biological Opinion, which the court rejected.

Questions Presented

1. Whether the district court improperly supplemented the administrative record with extra-record declarations and used those declarations to question NMFS's scientific judgments.
2. Whether NMFS's use of raw fish-salvage data, rather than population-scaled data, to establish flow restrictions was arbitrary and capricious.
3. Whether the challenged jeopardy-opinion components concerning winter-run Chinook, Southern Resident orcas, steelhead critical habitat, and indirect mortality factors were arbitrary and capricious.
4. Whether the challenged reasonable and prudent alternatives were arbitrary and capricious because NMFS did not explain why each was essential to avoid jeopardy or separately document compliance with the regulatory non-jeopardy factors.
5. Whether NMFS was required to distinguish discretionary from nondiscretionary project activities in establishing the environmental baseline.
6. Whether the Biological Opinion's indirect mortality factors were indirect effects under the ESA regulations.
7. Whether the Bureau of Reclamation was independently liable under the ESA.

Disposition

reversed_and_remanded