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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.

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"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.

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Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

« Rhinos: perspectives after a South African visit | Main| Ninth Circuit refines its standards for injunctions in MMPA case, implications for ESA. »

NOAA biop on salmon in Sacramento Delta struck down, due, in part, to global climate change.

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Pacific Coast Federation of Fishermen's Associations v. Gutierrez, 2008 U.S. Dist. LEXIS 31462 (April 16, 2008)

ChinookSalmon.jpg
Chinook salmon photo from California Department of Fish and Game

It was inevitable. Sooner or later, NOAA's biological opinion on the effects of the Operation Criteria and Plan (OCAP) for the Federal Central Valley Project (CVP) and California's State Water Project (SWP) on salmonid species was going to be remanded to the agency.  After all the agency had already asked for a voluntary remand, and, as a result of two prior rulings that post-dated NOAA's 2004 biological opinion on salmonid species in the Sacremento Delta, the Federal Defendants conceded some of the claims against them.  On April 16, 2008, U.S. District Court Judge Oliver Wanger, seated in Fresno, made it official.  See Bay area and Oregonnews coverage.

In a related, previous case, NRDC v. Kempthorne, 506 F.Supp.2d 322 (E.D. Cal. 2007), Judge Wanger had already struck down another biological opinion related to  the tiny delta smelt.  See ESAblawg entries on Dec. 14, 2007 and Oct. 31, 2007.  Moreover, based on the Ninth Circuit's ruling in National Wildlife Fed'n v. National Marine Fisheries Serv., 481 F.3d 1224 (9th Cir. 2007), NOAA conceded that some portions of its biological opinion needed to be revisited to better explain the implications of the CVP and SWP upon the recovery of salmonid species.  

While most of the Plaintiffs other claims failed, Judge Wanger also issued a clear statement regarding the failures of both NOAA and the Bureau of Reclamation to properly consider the effects of global climate change for water management in the region (a point also conceded by the Defendants, and even the water user intervenors):

The 2004 BiOp did not analyze the recovery of the three species and any effect global climate change will have over the next 25 years, the relevant duration of Project operations. The BiOp is incomplete and in the respects specifically identified, inexplicably inconsistent as to the species' survival and recovery. The BiOp is unlawfully silent on critical habitat effects.  An entire failure to consider an important aspect of the problem and a failure to explain contradictory record evi-dence makes the BiOp arbitrary and capricious under National Ass'n of Home Builders, 127 S.Ct. at 2529. Under the APA, a reviewing court must then remand the BiOp to the consulting agency. The court is without authority to proceed to decide the merits of the dispute until the Agencies have had the opportunity to discharge their statutory duties under the ESA. NMFS must provide rational and fact-based grounds for its new biological opinion based on the best science available.

On the other hand, while the biological opinion certainly had its limitations, the Court acknowledged that many of the Federal Defendants' efforts on behalf of salmonid species were adequate.  For example, the Court held that the proposed mitigation measures to offset the effects of the OCAP "are definite, and sufficiently certain to be enforceable. Their prescription and implementation are within the agency's reasonable discretion to which deference is owed. These measures strike the appropriate balance between the needs of certainty and flexibility prescribed by law."  In addition, the Court explained that these measures were deserving of deference :

The Bureau discussed and analyzed mitigation measures, including (1) temperature management to minimize salmon mortality; (2) implementation of CVPIA § 3406(b)(2) providing 800,000 AF of CVP yield for environmental and fish recovery purposes; (3) the EWA Program; (4) Trinity River releases at Lewiston Dam; (5) regulation of flows and pro-tection of salmonid migration; (6) spawning and incubation in Clear Creek, Sacramento River and American River; and (7) drought management measures. USBR AR 05152-05153, 05218-05225. The Bureau thereby employed its own ex-pertise and performed its own independent analysis of how mitigation and minimization efforts would ensure compli-ance with ESA § 7. Plaintiffs' criticisms... were rejected in the NRDC v. Kempthorne smelt decision. This analysis has not changed. Reasonable experts differ on these issues. Deference is owed to the Agency. The Bureau performed its § 7 responsibilities as to the BiOp for mitigation measures.

As with his other opinions on the subject, and as the few quotations above reveal, Judge Wanger's latest discussion of the CVP and SWP is once again meticulous in addressing the arguments of the parties.  See article "Don't Blame Wanger."  With extensive reference to the administrative record, the opinion also contains substantial detail on the history and status of the winter-run and spring-run chinook salmon, and the Central Valley steelhead.  See additional resources from California Department of Fish and Game on the chinook salmon.  

The story, however, has not yet reached its end.  In the opinion, the Court acknowledges that "An inoperative Project would not maintain the status quo, rather it would produce catastrophic results to the public and all parties in interest."  Accordingly, "a scheduling conference is set for April 25, 2008, at 12:15 p.m. in Courtroom 3 to address a schedule for addressing interim remedies and whether the 2004 BiOp should be remanded without vacatur."  

FULL DISCLOSURE: The author represented the Federal Defendants in this case during his tenure with the U.S. Department of Justice.