By Cori Badgley

On April 16, 2008, the United States District Court for the Eastern District of California issued an opinion in Pacific Coast Federation of Fishermen’s Associations v. Gutierrez (Case No. 1:06-cv-00245) that invalidated portions of the 2004 biological opinion (“BiOp”) issued by the National Marine Fisheries Service (“NMFS”) for the Long-Term Central Valley Project and State Water Project Operations Criteria Plan (“2004 OCAP”). The Central Valley Project (“CVP”) supplies water to approximately 30 million people in 200 water districts. The State Water Project “is the largest State-built water project in the country.” Both projects share resources and facilities. The good news is that water suppliers will enjoy the status quo while a new biological opinion is drafted and approved.

In 2004, the Bureau of Reclamation (“Bureau”) and the California Department of Water Resources (“DWR”) requested the initiation of formal Endangered Species Act (“ESA”) consultation for changes in the operation of the projects. Following consultation, NMFS issued the BiOp, which concluded that “the effects of proposed Project operations under the 2004 OCAP are not likely to jeopardize the continued existence of the” winter-run Chinook, spring-run Chinook, or Central Valley steelhead. Environmental groups and associations representing fishing interests brought suit in federal court on the grounds that the BiOp was invalid and that the Bureau unjustifiably relied on the BiOp. The court agreed with several of Plaintiffs’ claims and remanded the BiOp back to NMFS for revision.

In its opinion, the court addressed a multitude of claims against both NMFS and the Bureau, which included the following:

1)      The no jeopardy conclusions in the BiOp were unsupported and contradicted by the administrative record, and therefore, the BiOp was arbitrary and capricious.

2)      NMFS failed to conduct any analysis of project impacts in the context of the species’ life cycles and population dynamics.

3)      NMFS’ focus on incremental project impacts arbitrarily ignored significant adverse effects associated with baseline conditions and was unsupported by the BiOp’s findings.

4)      NMFS failed to conduct a comprehensive analysis of impacts associated with the entire federal action during formal consultation.

5)      NMFS failed to adequately address global climate change in the BiOp.

6)      The Adaptive Management Plan and mitigation measures were insufficient.

7)      The Bureau failed to satisfy its Section 7(a)(2) obligations by unreasonably relying on the BiOp.

1.         No Jeopardy Conclusion

Plaintiffs asserted that the no jeopardy conclusion for the three fish species (winter-run Chinook, spring-run Chinook, and steelhead) was unsupported by the evidence in the record, and therefore, NMFS acted arbitrarily and capriciously. Section 7 of the ESA requires that the biological opinion address “whether the action, taken together with cumulative effects, is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat.” A no jeopardy analysis must address both survival and recovery of the species. 

After evaluating the BiOp’s analysis of the three fish species, the court found that the BiOp failed to address recovery of any of the species, the facts discussed in the BiOp contradicted the no-jeopardy finding, and the BiOp failed to adequately address critical habitat. At the hearing on the cross motions for summary judgment, the federal defendants admitted that the BiOp needed to include further explanations of recovery implications to the fish species and critical habitat. In relation to the spring-run Chinook and the steelhead, the BiOp stated that critical habitat had not been designated for these species and therefore it did not have to be evaluated. 

Although the federal Defendants admitted that this evaluation was faulty, the court emphasized that the lack of a critical habitat designation did not provide Defendants with a waiver allowing them to eliminate the critical habitat discussion [1] The court granted Plaintiffs’ motion for summary judgment on the no jeopardy claim and held that the no jeopardy analysis was incomplete, arbitrary and capricious.

2.         Life Cycles and Population Dynamics

The federal Defendants agreed with Plaintiffs that NMFS failed to conduct any analysis of project impacts in the context of the species’ life cycles and population dynamic. The court found that although the BiOp included a detailed description of the species’ life cycles, it failed to analyze the impact on the different life stages of the fish species. 

Due to the lack of analysis, the court held that the BiOp required further explanation. However, the court denied Plaintiffs’ motion for summary judgment on the condition that NMFS revise its discussion of life cycles and population dynamics as offered by Defendants in their admissions.

3.         Incremental Project Impacts/Baseline Conditions

Plaintiffs alleged that NMFS arbitrarily ignored significant adverse effects associated with baseline conditions by focusing on incremental project impacts. Again, the federal Defendants admitted that further explanation of the baseline was necessary. In finding that the analysis was insufficient, the court relied on National Wildlife Foundation v. NMFS (9th Cir. 2007) 481 F.3d 1224. In that case, the Ninth Circuit Court of Appeals held that “the disputed biological opinion. . . impermissibly failed to incorporate degraded baseline conditions into its jeopardy analysis.” 

Based on that case, the district court enunciated the principle that NMFS must “consider the effects of its actions within the context of other existing human activities that impact the listed species.” Therefore, in this case NMFS must incorporate into its analysis the existing conditions prior to project implementation in conjunction with the impacts caused by the project. Since the federal Defendants admitted as much, the district court denied Plaintiffs’ summary judgment motion on the condition that NMFS incorporate these changes into the BiOp.

4.         Entire Federal Action

Biological opinions must address the entire federal action and not just a portion of it. Plaintiffs argued that NMFS failed to include the entire federal action by not addressing the construction of facilities to continue operations, and the impacts if 100 percent of the water deliveries occurred. The court stated that the definition of “entire agency action” was activities that would not occur but for the proposed action. This is called the “but for” test. Those actions that would not occur but for the proposed action are interrelated or interdependent and therefore a part of the entire agency action.      

Applying the “but for” test to these circumstances, the court found that the construction of additional facilities and the potential fulfillment of 100 percent of the water deliveries might occur regardless of whether the proposed action occurred. No firm plans existed for construction of the facilities, and no date had been set for future implementation. Therefore, the court held that NMFS addressed the entire agency action, and Plaintiffs’ motion for summary judgment on this claim was denied.

5.         Global Climate Change

Defendants admitted and Plaintiffs asserted that the BiOp failed to address global climate change. The analysis provided in biological opinions must be based on the best scientific and commercial data available. (16 U.S.C. § 1536(a)(2).) Plaintiffs claimed that scientific data was available in relation to climate change, and instead of using this data, Defendants relied on faulty assumptions that did not reflect the best available science. 

The court agreed, holding that “readily available scientific data existed regarding the potential effects of global climate change on the hydrology of the Project area river systems.” Because NMFS failed to use this data, NMFS acted arbitrarily and capriciously. Therefore, the court granted Plaintiffs’ motion for summary judgment.

6.         Adaptive Management Plan and Mitigation Measures

According to Plaintiffs, the mitigation measures and Adaptive Management Plan provided were inadequate because the measures were unenforceable and discretionary. In holding in favor of Defendants on this claim, the district court emphasized that the mitigation measures were made part of the “Terms and Conditions” of the BiOp, which were incorporated into the Incidental Take Statement. Incidental Take Statements can be enforced under civil and criminal law. Before concluding that the measures were enforceable, the court evaluated each area contested by Plaintiffs to ensure that the mitigation measures provided specific guidance and did not allow for discretionary decisions. 

The court found that all of the mitigation measures satisfied the criteria required under the Endangered Species Act. Therefore, the court held that the mitigation measures and Adaptive Management Plan were valid and enforceable. The court denied Plaintiffs’ motion for summary judgment.

7.         Bureau’s Obligations Under § 7(a)(2)

Section 7(a)(2) of the ESA requires that the implementing agency reasonably rely on the biological opinion. Many of Plaintiffs’ allegations under this claim repeated the allegations made concerning the inadequacy of the BiOp. Specifically, Plaintiffs repeated the following allegations: the mitigation measures were unenforceable; the BiOp contained internal contradictions that could not be reasonably relied upon; the BiOp failed to address climate change; and the BiOp failed to consider the impacts of 100 percent of water deliveries. On these issues, the court referred to its previous discussion under the claims against NMFS and reiterated its holdings. The new issues presented were the following: the Bureau acted in bad faith during the consultation process by attempting to influence NMFS’ decision; the Bureau identified an unreasonable temperature control point; and the Bureau failed to consider new information. The court held that the Bureau acted reasonably in relation to all of these actions.

On the first issue of bad faith, the court looked to the Inspector General’s report from a previous investigation into the Bureau’s actions during the consultation process for the BiOp. The Inspector General stated: “No [Bureau] employees or contractors tried to influence the consultation process.” Relying on the Inspector General, the court held that the Bureau acted in good faith throughout all consultations with NMFS.

On the second issue of temperature control, the court held that the Bureau properly exercised its expertise and reasonably decided to approve a flexible temperature control point. Instead of fixing the temperature control point at a static number, the Bureau provided for more flexibility in setting the number, following the State Water Resources Control Board’s (“SWRCB”) order authorizing “modification of the water temperature compliance point when temperature objectives cannot be met at the Red Bluff Diversion Dam.” Considering the circumstances and the SWRCB’s order, the court found that the Bureau acted reasonably.

On the third issue of new information, the court looked to the administrative record and found that specific references illustrated the consideration of new information and resources after issuance of the BiOp. Because the record contradicted Plaintiffs’ assertions, the court held that the Bureau complied with its statutory obligations.

Conclusion

The court concluded that portions of the BiOp, such as the no-jeopardy analysis and the climate change discussion, were invalid and must be remanded back to NMFS to revise. Additionally, the court agreed with certain admissions by NMFS that portions of the BiOp needed further explanation. The court dismissed these issues on the condition that NMFS adhere to its agreement to add further explanation. Further, the court disagreed with Plaintiffs on several claims, including the inadequacy of the mitigation measures and the failure of the BiOp to address the entire agency action. These claims were dismissed, and the BiOp’s discussion of these areas was held to be valid.

Considering the importance of these projects on water supply for the state of California, the implications could be enormous. In light of these potential implications, it is important to point out that the court upheld maintenance of the status quo by the lead agencies while the BiOp is being revised. The court stated:

To the extent that Plaintiffs seek a cessation of Project operations, the [Section] 7(d) proscription is for the agency not to make any irreversible or irretrievable commitment of resources which forecloses the formulation or implementation of any reasonable and prudent alternative measures. 16 U.S.C. § 1536(d). An inoperative Project would not maintain the status quo, rather it would produce catastrophic results to the public and all parties in interest.

Under this logic, it appears that the water projects will continue to operate as they historically have until NMFS issues a new biological opinion. In light of the detailed directives from the court, it is likely a new biological opinion could take upwards of a year to complete, and the status quo would remain even longer if the new opinion is challenged.

Cori Badgley is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.