Bear Valley Mut. Water Co. v. Jewell, 12–57297.

Citation790 F.3d 977
Decision Date25 June 2015
Docket NumberNo. 12–57297.,12–57297.
PartiesBEAR VALLEY MUTUAL WATER COMPANY; Big Bear Municipal Water District ; City of Redlands; City of Riverside; City of San Bernardino Municipal Water Department ; East Valley Water District; Riverside County Flood Control and Water Conservation District ; San Bernardino Valley Municipal Water District; San Bernardino Valley Water Conservation District; Western Municipal Water District; West Valley Water District ; Yucaipa Valley Water District, Plaintiffs–Appellants, v. Sally JEWELL, Secretary of the United States Department of the Interior; United States Department of the Interior; Daniel M. Ashe, Director, United States Fish and Wildlife Service; United States Fish and Wildlife Service, Defendants–Appellees, California Trout, Inc.; Center for Biological Diversity ; San Bernardino Audubon Society; Sierra Club, Intervenor–Defendants–Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Gregory K. Wilkinson (argued), Wendy Wang, Melissa Cushman, and Kira Johnson, Best Best & Krieger LLP, Riverside, CA, for PlaintiffsAppellants City of Riverside, Riverside County Flood Control and Water Conservation District, and Western Municipal Water District.

Jean Cihigoyenetche, Brunick, McElhaney & Kennedy, San Bernardino, CA, for PlaintiffAppellant East Valley Water District.

David G. Moore, Reid & Kellyer, Riverside, CA, for PlaintiffAppellant Bear Valley Mutual Water Company.

Daniel J. McHugh, Office of the City Attorney, Redlands, CA, for PlaintiffAppellant City of Redlands.

David R.E. Aladjem and M. Max Steinheimer, Downey Brand LLP, Sacramento, CA, for PlaintiffAppellant San Bernardino Valley Municipal Water District.

David L. Wysocki, Aklufi & Wysocki, Redlands, CA, for PlaintiffAppellant Yucaipa Valley Water District.

Gerald W. Eagans, Redwine & Sherrill, Riverside, CA, for PlaintiffAppellant West Valley Water District.

Gregory Priamos and Susan D. Wilson, Office of the City Attorney, Riverside, CA, for PlaintiffAppellant City of Riverside.

Wayne Lemieux, Lemieux & O'Neill, Thousand Oaks, CA, for PlaintiffAppellant Big Bear Municipal Water District.

David B. Cosgrove, Rutan & Tucker LLP, Costa Mesa, CA, for PlaintiffAppellant San Bernardino Valley Water Conservation District.

Andrew M. Hitchings, Somach Simmons & Dunn, Sacramento, CA, for PlaintiffAppellant City of San Bernardino Municipal Water Department.

Robert G. Dreher, Acting Assistant Attorney General, Andrea Gelatt, and Allen M. Brabender (argued), Attorneys, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C.; Lynn Cox, Office of the Solicitor, United States Department of the Interior, for Federal DefendantsAppellees.

John Buse (argued) and D. Adam Lazar, Center for Biological Diversity, San Francisco, CA, for IntervenorDefendantsAppellees.

M. Reed Hopper and Anthony L. Francois, Pacific Legal Foundation, Sacramento, CA, for Amicus Curiae Pacific Legal Foundation.

Michelle Ouellette, Ward H. Simmons, and Lucas I. Quass, Best Best & Krieger LLP, Riverside, CA, for Amicus Curiae Western Riverside County Regional Conservation Authority.

Daniel J. O'Hanlon, Hanspetter Walter, Rebecca R. Akroyd, and Elizabeth L. Leeper, Kronick, Moskovitz, Tiedemann & Girard, Sacramento, CA; Marcia L. Scully, General Counsel, and Linus S. Masouredis, Chief Deputy General Counsel, The Metropolitan Water District of Southern California, for Amici Curiae Association of California Water Agencies and State Water Contractors, and the Metropolitan Water District of Southern California.

Frederic A. Fudacz, Robert D. Thornton, and Susan G. Meyer, Nossaman LLP, Irvine, CA; John Krattli, County Counsel, and Michael L. Moore, Deputy County Counsel, Office of County Counsel, Los Angeles, CA, for Amici Curiae Los Angeles County Flood Control District and the Main San Gabriel Basin Watermaster.

Appeal from the United States District Court for the Central District of California, James V. Selna, District Judge, Presiding. D.C. No. 8:11–cv–01263–JVS–AN.

Before: HARRY PREGERSON, BARRINGTON D. PARKER, JR.* , and JACQUELINE H. NGUYEN, Circuit Judges.

OPINION

PARKER, Senior Circuit Judge:

The Santa Ana sucker (Catostomus santaanae ) is a small freshwater fish native to several California rivers and streams, including the Santa Ana River. In 2000, the United States Fish and Wildlife Service (FWS), after being sued by conservation groups, designated the sucker as a “threatened” species pursuant to the Endangered Species Act (“ESA”). In 2004, the FWS promulgated a Final Rule designating particular areas as critical habitat for the sucker. In a subsequent 2005 Final Rule and in a 2009 Proposed Rule, the FWS excluded certain areas covered by local conservation plans from critical habitat designation. But in a 2010 Final Rule, the FWS changed course and designated as critical habitat several thousand acres of land that had previously been excluded.

In August 2011, in response to this change, several municipalities and water districts sued the FWS, the Department of the Interior, and other federal officials, alleging, in essence, that the FWS (1) did not cooperate with the state in resolving water resource issues that arose from the critical habitat designation; (2) acted arbitrarily and capriciously in revising the critical habitat designation to include the previously excluded land; and (3) violated the National Environmental Policy Act (“NEPA”) by failing to prepare an environmental impact statement prior to designation. Shortly thereafter, several conservation groups previously involved in the litigation to secure critical habitat designation for the sucker successfully moved to intervene.

The parties cross-moved for summary judgment. In October 2012, the United States District Court for the Central District of California (James V. Selna, J.) granted defendants summary judgment on all claims. The court held that the FWS satisfied its statutory obligation to cooperate with state agencies, that the critical habitat designation was not arbitrary or capricious, and that any claims under NEPA were barred by this Court's decision in Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir.1995), which held that the statute does not apply to critical habitat designations. This appeal followed. For the reasons set forth, we AFFIRM the district court's judgment.

BACKGROUND
I. Factual Background
A. The Santa Ana River

Appellants are municipalities and water districts that divert water from the Santa Ana River for various uses and conduct maintenance activities within its watershed. The Santa Ana River travels through southwestern San Bernardino County and Riverside County, continues through Orange County, and flows into the Pacific Ocean between Newport Beach and Huntington Beach. The Santa Ana River is prone to flooding; consequently, two dams—the Prado and the Seven Oaks Dam—work in tandem to assist with flood control. The dams require ongoing maintenance work, some of which may be done in areas designated as critical habitat.

The Santa Ana River also serves as a source of water for its watershed communities. Water rights are allocated to municipalities and water districts subject to two state court decisions, Orange County Water District v. City of Chino et al., No. 117628 (Super.Ct. Orange County, CA Apr. 17, 1969) and Western Municipal Water District of Riverside County et al v. East San Bernardino County Water District et al., No. 78426 (Super.Ct. Riverside County, CA Apr. 17, 1969). In 2009, the California State Water Board granted the San Bernardino Valley Municipal Water District and the Western Municipal Water District permits to divert additional water captured by the Seven Oaks Dam “for beneficial uses.”

B. Local Conservation Plans and Partnerships

In the late 1990s, two coalitions formed to develop conservation plans for the sucker. In 1998, the first coalition, consisting of the FWS, the United States Army Corps of Engineers, the Santa Ana Watershed Project Authority, and various local agencies, including several Appellants in this case, agreed to the Santa Ana Sucker Conservation Plan (“SASCP”). Under the SASCP, the FWS allowed permittees to incidentally “take” (i.e., harm or kill) a limited number of suckers, in exchange for various conservation and mitigation measures. In 1999, a second coalition of 22 parties developed the Western Riverside County Multiple Species Habitat Conservation Plan (“MSHCP”), a regional, multi-jurisdictional plan that encompasses nearly 1.26 million acres and provides participating agencies with a 75 year permit for the incidental taking of 146 protected species, including the sucker, in exchange for implementing conservation measures. Several Appellants, including the City of Riverside and Riverside County Flood Control, are among the permittees covered by the MSHCP.

In 2004, the MSHCP was formally approved by the FWS. Under the terms of the Implementation Agreement (“MSHCP–IA”), the FWS stipulated that:

[T]o the maximum extent allowable after public review and comment, in the event that a Critical Habitat determination is made for any Covered Species Adequately Conserved, and unless the [Service] finds that the MSHCP is not being implemented, lands within the boundaries of the MSHCP will not be designated as Critical Habitat.

Although the MSHCP continues to be implemented, the FWS, in the 2010 Final Rule, designated additional critical habitat within the MSHCP. A crucial issue on this appeal is whether, and to what extent, this stipulation binds the FWS's designation decisions.

C. History of Listing and Critical Habitat Designation
1. 19942003

Efforts to list the sucker as an endangered species date back to September 1994, when two conservation groups petitioned the FWS to consider the listing. When the FWS did not respond to the petition within the 90 days mandated by statute, the groups sued to compel a determination. In May 1996, the United States District Court for the...

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