Major Water Rights Victory
Ninth Circuit Ruling Reaffirms Water Renewal Contracts
VIDEO: PLF attorney Brandon M. Middleton responds to Ninth Circuit ruling
Pacific Legal Foundation celebrates a recent court ruling in a Delta smelt case in which a panel of the Ninth Circuit Court of Appeals ruled 2 to 1 that the U.S. Bureau of Reclamation did not violate the Endangered Species Act (ESA) when it renewed 41 water contracts as part of the Central Valley Project. PLF filed an amicus brief supporting the water contractors.
The plaintiffs in the lawsuit, NRDC v. Salazar, included the Natural Resources Defense Council, Friends of the River, and others. Judge Proctor Hug, Jr., writing for the majority, ruled that the Bureau had no obligation to consult with the U.S. Fish and Wildlife Service over the impact of the contract renewals on the Delta smelt, as specifically argued in PLF’s brief.
A Reasoned Ruling
Section 7 of the ESA requires federal agencies to consult with the Service before undertaking an action, like contract renewal, that may affect a protected species. In ruling for the government and the water contractors, Judge Hug relied on the U.S. Supreme Court’s decision in National Association of Home Builders v. Defenders of Wildlife. That decision held that Section 7 applies only to discretionary federal actions. Judge Hug reasoned that because the Bureau’s renewal of these water contracts was mandated by federal and state law, the Bureau had no obligation to consult.
The majority also ruled that the environmentalist plaintiffs lacked standing to challenge some of the contracts at issue. Judge Hug reasoned that the plaintiffs could not establish that a failure to consult would harm their aesthetic interests; the contracts at issue had a “shortage” clause which would allow the Bureau to provide more water for the smelt, notwithstanding the contract obligation.
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