Grand Canyon Trust v. U.S. Bureau of Reclamation

• Decision Date: 17 September 2012
• Docket Number: No. 11–16326.,11–16326.
• Citation: 2012 Daily Journal D.A.R. 11186,12 Cal. Daily Op. Serv. 10748,12 Cal. Daily Op. Serv. 9178,691 F.3d 1008
• Parties: GRAND CANYON TRUST, Plaintiff–Appellant, v. UNITED STATES BUREAU OF RECLAMATION; United States Fish and Wildlife Service; Michael L. Connor, Commissioner U.S. Bureau of Reclamation, Defendants–Appellees, State of Arizona; State of Nevada; Colorado River Commission of Nevada; State of Colorado; Southern Nevada Water Authority; Central Arizona Water Conservation District; New Mexico Interstate Stream Commission; State of Utah; State of Wyoming; State of New Mexico; State of California; Colorado River Energy Distributors Association; Southern California Metropolitan Water District; Imperial Irrigation District, Intervenor–Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

691 F.3d 1008

12 Cal. Daily Op. Serv. 9178

12 Cal. Daily Op. Serv. 10,748

2012 Daily Journal D.A.R. 11,186

GRAND CANYON TRUST, Plaintiff–Appellant,

v.UNITED STATES BUREAU OF RECLAMATION; United States Fish and Wildlife Service; Michael L. Connor, Commissioner U.S. Bureau of Reclamation, Defendants–Appellees,State of Arizona; State of Nevada; Colorado River Commission of Nevada; State of Colorado; Southern Nevada Water Authority; Central Arizona Water Conservation District; New Mexico Interstate Stream Commission; State of Utah; State of Wyoming; State of New Mexico; State of California; Colorado River Energy Distributors Association; Southern California Metropolitan Water District; Imperial Irrigation District, Intervenor–Defendants–Appellees.

No. 11–16326.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted June 11, 2012.

Filed Aug. 13, 2012.

As Amended Sept. 17, 2012.

McCrystie Adams (argued), Earthjustice, and Neil Levine, Grand Canyon Trust, Denver, CO, for the appellant-plaintiff.

Ignacia S. Moreno, Assistant Attorney General, Mark R. Haag and David C. Shilton (argued), Environmental & Natural Resources Division, United States Department of Justice, Washington, D.C., for the appellees-defendants.

Kenneth C. Slowinski and Nicole D. Klobas, Arizona Department of Water Resources, Legal Division, Phoenix, AZ; Kamala D. Harris, California Attorney General, Kathleen A. Kenealy, Senior Assistant Attorney General, and Gary E. Tavetian, Deputy Attorney General, Los Angeles, CA; John W. Suthers, Colorado Attorney General, and Karen M. Kwon (argued), First Assistant Attorney General, Denver, CO; Catherine Cortez Maso, Nevada Attorney General, and

Jennifer T. Crandell, Senior Deputy Assistant Attorney General, Las Vegas, NV; Dana R. Walsh, Southern Nevada Water Authority, Las Vegas, NV; Gary K. King, New Mexico Attorney General, Stephen R. Farris, Assistant Attorney General, Anne Moore, Assistant Attorney General, and Amy Haas, Special Assistant Attorney General, Santa Fe, NM; Mark L. Shurtleff, Utah Attorney General, Norman K. Johnson, Natural Resources Division Chief, and Michael M. Quealy, Assistant Attorney General, Salt Lake City, UT; Gregory A. Phillips, Attorney General, Peter K. Michael, Chief Deputy Attorney General, and Jeremiah I. Williamson, Assistant Attorney General, Cheyenne, WY; Kathy Robb, Hunton & Williams LLP, New York, NY; Jay M. Johnson and Suzanne Ticknor, Central Arizona Project, Phoenix, AZ; Marcia L. Scully, Joseph A. Vanderhorst, and Peter E. von Haam, Metropolitan Water District of Southern California, Los Angeles, CA; John P. Carter, Horton, Knox, Carter & Foote, El Centro, CA; Bennett W. Raley, Trout, Raley, Montaño, Witwer & Freeman, P.C., Denver, CO, for the intervenors-appellees.

Appeal from the United States District Court for the District of Arizona, David G. Campbell, District Judge, Presiding. D.C. No. 3:07–cv–08164–DGC.

Before: FERDINAND F. FERNANDEZ, RONALD M. GOULD, and CARLOS T. BEA, Circuit Judges.

OPINION

GOULD, Circuit Judge:

Grand Canyon Trust appeals the district court's grant of summary judgment in favor of the United States Bureau of Reclamation (“Reclamation”) and the United States Fish and Wildlife Service (“FWS”) rejecting the Trust's claims alleging that Reclamation and FWS violated the Endangered Species Act, the National Environmental Policy Act and the Administrative Procedure Act in the operation of the Glen Canyon Dam. We have jurisdiction under 28 U.S.C. § 1291. We dismiss as moot in part and affirm in part.

I

Grand Canyon Trust (“the Trust”) is an organization devoted to the protection and restoration of the canyon country of the Colorado Plateau. Reclamation and FWS are agencies within the Department of the Interior. Reclamation is responsible for the operation of the Glen Canyon Dam (“the Dam”) situated on the Colorado River, and FWS is responsible for the protection of the humpback chub, a fish that exists primarily in the relatively inaccessible canyons of the Colorado River and that is listed as endangered under the Endangered Species Act (“ESA”). Intervenor–Appellees are the seven Colorado River Basin States of Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming; the Colorado River Commission of Nevada; the Southern Nevada Water Authority; the Colorado River Energy Distributors Association; the Central Arizona Water Conservation District; the Imperial Irrigation District; and the Metropolitan Water District of Southern California (collectively, “Intervenors”).

A

We first review the statutory framework relevant to this appeal. “The ESA reflects a conscious decision by Congress to give endangered species priority over the primary missions of federal agencies.” W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 495 (9th Cir.) (quoting Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) (internal quotations marks omitted)) cert. denied––– U.S. ––––, 132 S.Ct. 366, 181 L.Ed.2d 232 (2011). Under the ESA, a federal agency must ensure that an “agency action” is not likely to jeopardize the continued existence of any listed species or destroy or adversely modify the critical habitat of any listed species. 16 U.S.C. § 1536(a)(2); see Kraayenbrink, 632 F.3d at 495 (“The heart of the ESA is section 7(a)(2), 16 U.S.C. § 1536(a)(2).”). If the agency action “may affect” any listed species, the acting agency must formally consult with the federal agency responsible for the protection of the species in question (“the consulting agency”). 16 U.S.C. § 1536(a), (b); 50 C.F.R. § 402.14(a); Natural Res. Def. Council v. Houston, 146 F.3d 1118, 1126 (9th Cir.1998). ¹

To begin formal consultation, the acting agency must make a written request describing the circumstances of the request and must provide the consulting agency with the best available scientific and commercial data. 50 C.F.R. § 402.14(c), (d). After considering the submissions, the consulting agency must issue a biological opinion (“BiOp”) stating its position as to whether the agency action will jeopardize or adversely modify or destroy the critical habitat of a listed species. 16 U.S.C. § 1536(b)(3)(A). If the consulting agency issues a BiOp indicating that the agency action jeopardizes a listed species, the consulting agency must suggest reasonable and prudent alternatives to the acting agency that mitigate the negative environmental effects of the agency action. Id.

The ESA also prohibits the acting agency from “taking” ² a threatened or endangered species in the course of the agency action. 16 U.S.C. § 1538(a)(1)(B), (G). If the consulting agency determines that the agency action may incidentally “take” a threatened or endangered species, the consulting agency must issue an incidental take statement (“ITS”), specifying, inter alia, the impact of the incidental taking and reasonable and prudent measures that minimize the impact. 16 U.S.C. § 1536(b)(4), ( o )(2); Bennett v. Spear, 520 U.S. 154, 158, 170, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997).³

The National Environmental Policy Act (“NEPA”) requires that an environmental impact statement (“EIS”) be issued for every “major Federal action [ ] significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C); 40 C.F.R. § 1508.11. An EIS must carefully assess the environmental impact of the proposed action, unavoidable environmental effects, and alternatives to the proposed action. 42 U.S.C. § 4332(C). An agency undertaking a major federal action may first prepare an environmental assessment (“EA”) to determine whether an EIS is necessary. 40 C.F.R. § 1508.9. If after conducting an EA the agency determines that the proposed action will not result in a significant impact, the agency must issue a finding of no significant impact (“FONSI”) in lieu of an EIS. 40 C.F.R. §§ 1508.9, 1508.13; Barnes v. United States Dep't. of Transp., 655 F.3d 1124, 1131 (9th Cir.2011).

B

The Colorado River Storage Project Act of 1956 authorized the construction of the Dam. See43 U.S.C. § 620 et seq. Finished in 1963, the Dam is located on the Colorado River in Northern Arizona, and it creates Lake Powell, the second largest reservoir in the United States, which provides drinking water for more than 25 million people. Also, the Dam each year produces more than 3 million megawatt hours of electricity.

The Colorado River Basin Project Act of 1968 (“CRBPA”) required the Secretary of the Interior (“the Secretary”) to adopt criteria for the long-range operation of all reservoirs and dams constructed and operated under the CRBPA, including the Dam. See43 U.S.C. § 1552(a). The Secretary adopted the Long–Range Operating Criteria in 1970, which established a minimum annual water release from Lake Powell of 8.23 million acre feet.⁴See Colorado River Reservoirs: Coordinated Long–Range Operation, 35 Fed.Reg. 8,951–52 (June 10, 1970). The CRBPA also required the Secretary to transmit annual operating plans (“AOPs”) to Congress and the Governors of the Colorado River Basin States. See43 U.S.C. § 1552(b). AOPs must describe “the actual operation under the adopted criteria for the preceding compact water year and the projected operation for the current year.” Id.

The placement and management of the Dam have changed the historical flow and characteristics of the Colorado River below the Dam. The Dam traps a large majority of the sediment that would otherwise flow down the Colorado River, impairing critical habitat of the humpback chub below the Dam.⁵ Also, the average temperature of the River below the Dam is cooler because the Dam releases waters from the deeper and colder reaches of Lake Powell. This harms the humpback chub, which thrives in warmer waters.

In part to address this and other negative environmental consequences of the Dam, Congress passed the Grand Canyon Protection Act of 1992 (“GCPA”). The GCPA requires the Secretary generally to operate the Dam “in such a manner as to protect [and] mitigate...