Posts Tagged ‘Delta smelt’


Under the Endangered Species Act (ESA), if the Secretary of the Interior concludes that a federal agency action will jeopardize a species listed as threatened or endangered, then the Secretary must use the best scientific and commercial data available to identify reasonable and prudent alternatives that are economically and technologically feasible. Petitioners in State Water Contractors v. Jewell presented the U.S. Supreme Court with the following questions related to the Act’s directive: 1) Must the Secretary address in the administrative record the economic and technical feasibility of proposed “reasonable and prudent alternative,” including the effects of the proposed alternatives on third parties? 2) May the Secretary disregard the “best scientific data” on the ground that considering the data would lead to a less “conservative” result, because scientific certainty is impossible, or because the Secretary has considered a range of data in reaching a conclusion?

This case arose after the U.S. Fish and Wildlife Service (FWS) issued a Biological Opinion (BiOp) in 2005 which found that operation of the state’s two largest water projects, the State Water Project and the Central Valley Project, threatened the delta smelt, and thereby curtailed those projects’ operations. The district court found major flaws with the BiOp and ordered FWS to reconsider it, but the Ninth Circuit reversed. The appellate court held that FWS was precluded as a matter of law from considering the economic effects of its proposed restrictions on project operations on Californians. The court also excused FWS’s failure to use the best available scientific data in formulating its opinion. Petitioners argued that the Ninth Circuit’s decision exacerbated the harmful effects of California’s drought, created circuit splits, and contravened the Supreme Court’s precedents.

The BiOp, which the appellate court described as “a big bit of a mess,” concluded that unless the quality and quantity of the delta smelt habitat improved, the smelt would not recover from their downward population trend. The BiOp specified various actions as reasonable and prudent alternatives (RPAs) to the status quo, including limiting the amount of water the projects could pump for certain uses. Petitioners claimed that the amount of water sacrificed to implement the RPAs could have met the needs of over one million households for a year, or irrigated two hundred thousand acres of farmland.

District Court decision

Petitioners brought suit alleging the BiOp violated NEPA, the ESA, and the Administrative Procedure Act. The district court held the BiOp invalid. First, it found FWS had failed to establish that its RPAs met the requirements for a reasonable and prudent alternative under 50 C.F.R. section 402.02, including the requirement that the proposed restrictions be economically and technologically feasible. The court also held that the analyses supporting the specific flow prescriptions set forth in the RPA were fatally flawed and predominantly unsupported, given that 1) FWS failed to use the best available science in calculating flow rates to reduce the number of fish drawn into the pumping stations and 2) the BiOp adopted a flawed methodology to set limits on salinity in the Delta in the autumn of years categorized as above-normal or wet. The court found the agency’s decision “was arbitrary and capricious and ignored the best available science showing that a bias was present.”

Ninth Circuit decision

In a divided panel, the Ninth Circuit reversed. The majority agreed with FWS that the agency was not required to explain why its proposed RPAs met the feasibility standard set forth in the agency’s own regulations. The court also upheld FWS’s decision to use raw salvage data, concluding that normalized data was not tailored to protect the maximum absolute number of individual smelt, as the BiOp’s approach was. The court noted that although ideally FWS would have discussed its reasoning in using that data, the agency’s choice was entitled to deference. One judge sitting by designation from the Eighth Circuit dissented, arguing that because the concerns relating to the RPAs’ feasibility had been raised, FWS was required to at least address those concerns in the BiOp or in the administrative record. The dissent also argued that FWS had failed to use the best available science. The dissent also concluded that the agency’s means of determining where in the Delta the salinity reaches two parts per thousand was arbitrary and capricious, and disagreed with the majority’s decision to ignore the expert witnesses.

Argument for granting the writ

Petitioners described the issues presented as ones of “exceptional national importance.” They argued cert is warranted to resolve a circuit conflict over whether a consulting agency must consider the effects on third parties when proposing reasonable and prudent alternatives to agency action. Furthermore, petitioners noted, whether the ESA requires or precludes an agency from considering the economic impact of its proposed restrictions on agency activity on third parties is a question of recurring importance, given the fact that the federal government conducts thousands of ESA consultations every year. Petitioners argued, that, contrary to the Ninth Circuit’s interpretation, the presence of the feasibility requirement in the definition section of the regulations made the requirement more central to the agency’s obligation of reasoned explanation than it would if the requirement appeared elsewhere. By failing to consider feasibility, petitioners stated, FWS entirely failed to consider an important aspect of the problem, and therefore acted arbitrarily and capriciously. This would not mean that an RPA requirement authorizes FWS to balance the life of delta smelt against the impact of restrictions on project operations; but in choosing among possible alternatives that would avoid jeopardy, an agency would be required to consider the impact of the various effective alternatives on third parties, “in order to avoid unnecessary harm to humans in the course of protecting plants and animals.”