Ninth Circuit urged to save salmon dying in Sacramento River
SAN FRANCISCO (CN) — Environmental groups asked a Ninth Circuit panel to overturn a federal court’s judgment in an action concerning how the federal government manages California’s Central Valley Project and its effects on endangered Chinook salmon.
The Natural Resources Defense Council appealed a federal judge’s dismissal of the group's claims that due to populations of protected Chinook salmon dying in the Sacramento River, the U.S. Bureau of Reclamation should have revived consultations regarding the renewal of long-term Central Valley Project water delivery contracts, per the Endangered Species Act.
The judge rejected the environmental groups' arguments that a 2015 U.S. Fish and Wildlife Service letter stemmed from an inadequate consultation regarding the effects of long-term water contract renewals on delta smelt, and that Reclamation acted unlawfully by relying on the letter to implement the contracts.
In February, U.S. District Judge Jennifer Thurston extended a temporary settlement of two challenges to biological opinions issued by the National Marine Fisheries Service and the Fish and Wildlife Service in 2019. The opinions make it possible to send more water to 20 million farms, businesses and homes in Southern and Central California via the massive federal and state water diversion projects, and eliminate requirements such as mandating extra flows to keep water temperatures from rising high enough to damage salmon eggs.
Supporters of Trump-era water and wildlife policies say the opinions helped provide needed irrigation water to help family farms and ranches thrive, employ workers and keep California's $50 billion agricultural industry afloat. Opponents say the assessments jeopardize the survival of threatened Chinook salmon, steelhead trout, delta and longfin smelt.
Winter-run salmon adults migrate upstream through the San Francisco Bay-Delta region during the winter and spring months, and spawn in the upper Sacramento River in the summer months. Reclamation releases water stored in reservoirs in Northern California which flows down the Sacramento River to the Sacramento-San Joaquin River Delta, and pumping plants divert that water to users south of the delta.
Thurston — a Joe Biden appointee — said the 2023 interim plan continues provisions in the 2022 plan that enhanced or strengthened “loss thresholds” to protect salmonids migrating through the delta.
She found it represents “a temporary settlement of a highly complex lawsuit,” saying no court is positioned to “determine how these highly complex water projects should be managed on an interim basis.” She granted a stay of proceedings through Dec. 31 to allow defendants to revise the biological opinions, and may appoint a special master to oversee review of future requests for interim injunctive relief.
On Friday, U.S. Judges Ronald Gould and Sandra Ikuta, Bill Clinton and George W. Bush appointees, respectively, and Senior U.S. District Judge James Selna, a George W. Bush appointee sitting by designation from the Central District of California, took up the appeal.
The panel heard from the conservationists' lawyer Barbara Chisholm, who argued the 2015 consultation between Reclamation and Fish and Wildlife on effects of contract renewals on delta smelt was “arbitrary and capricious.” She said Fish and Wildlife relied exclusively on 2008 findings which "ignored and failed to address a major question.”
Chisholm said Reclamation claims both that it had no discretion to change long-term contracts, and also “that it does retain discretion to make changes.” In actuality, she said, Reclamation has discretion on some water operations to create ideal breeding environments for Chinook salmon, including to decide to release less water for the benefit of the Delta smelt.
“In short, the defendants want to have their cake and eat it too,” Chisholm said.
Representing the government, attorney Katelin Shugart-Schmidt said the water project has been the most complex and heavily analyzed water project in the country for 20 years. She said Reclamation followed the requirements commanded in 2015 by honoring the long-term contract renewals.
“As a practical matter, the federal agencies here have done their work under the law,” Shugart-Schmidt said, calling the plaintiffs’ argument a “horse and cart situation.” She said unless a new consultation is initiated under a legal mandate, Reclamation does not have the discretion to change operations.
“The goal of the act is that the project be evaluated by Fish and Wildlife to determine if it can move forward without causing jeopardy, and as long as that is the case that's really the end of it,” she said. She warned the panel against any additional mandate of an agency to consider actions “beyond the scope of the requested project.”
Attorney Meredith Nikkel, representing Sacramento River settlement contractors including Reclamation District 108, asked for the court to allow Reclamation to continue its work “without this nearly two decades-long cloud of ongoing litigation.” Nikkel urged the panel to toss the appeal because Reclamation complied with the law by analyzing how to divert water quantities and not jeopardize delta smelt populations.
“There are no biological opinions that require any changes to the settlement contract terms, so it would be premature to speculate about what the effect of such a biological opinion might be,” she said.
"Did the validity of the new contracts depend in any way on whether the old contracts were valid under law?" Gould asked.
An attorney arguing for the water managers said no, and that even if the conservation groups had prevailed on their claims, the contracts would not have been deemed automatically invalid.
In rebuttal, Chisholm said the defendants are essentially asking the court to “take on the role of expert, to determine whether the partial consultation was sufficient.”
“The court should not be put in that position,” she said. “The court cannot guess what might have been implied in an agency decision making process. By chopping off 15 years of federal action, the agency is arbitrary and capricious without considering the full effects, and those could have had an impact."
The court took the arguments under submission, and will issue an order.