Natural Resources Defense Council v. Houston, Nos. 97-16030

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtTASHIMA
Citation146 F.3d 1118
Parties, 28 Envtl. L. Rep. 21,368, 98 Cal. Daily Op. Serv. 4866, 98 Daily Journal D.A.R. 6872 NATURAL RESOURCES DEFENSE COUNCIL; Trout Unlimited of California; Bay Institute of San Francisco; California Natural Resources Federation; California Sportfishing Protection Alliance; California Trout; Friends of the River; Northern California Guides Association; Pacific Coast Federation of Fishermen's Associations; San Joaquin Raptor Rescue Center; Sierra Club; Stanislaus Audubon Society, Inc.; United Anglers of California; California Striped Bass Association; National Audubon Society, Plaintiffs-Appellees, v. David G. HOUSTON, Defendant, and Lower Tule River Irrigation District; Porterville Irrigation District; Saucelito Irrigation District; Stone Corral Irrigation District; Teapot Dome Water District, Defendants-Intervenors-Appellants. NATURAL RESOURCES DEFENSE COUNCIL; Trout Unlimited of California; Bay Institute of San Francisco; California Natural Resources Federation; California Sportfishing Protection Alliance; California Trout; Friends of the River; Northern California Guides Association; Pacific Coast Federation of Fishermen's Associations; San Joaquin Raptor Rescue Center; Sierra Club; Stanislaus Audubon Society, Inc.; United Anglers of California; California Striped Bass Association; National Audubon Society, Plaintiffs-Appellees, v. David G. HOUSTON, Defendant, and Orange Cove Irrigation District; Delano-Earlimart Irrigation District; Exeter Irrigation District; Ivanhoe Irrigation District; Lindmore Irrigation District; Lindsay-Strathmore Irrigation District; Terra Bella Irrigation District, Defendants-Intervenors-Appellants. NATURAL RESOURCES DEFENSE COUNCIL; Trout Unlimited of California; Bay Institute of San Francisco; California Natural Resources Federation; California Sportfishing Protection Alliance; California Trout; Friends of the River; Northern California Guides Association; Pacific Coast Federation of Fishermen's Associations; San Joaquin Raptor Rescue Cent
Decision Date24 June 1998
Docket Number97-16042,Nos. 97-16030,97-16041

Page 1118

146 F.3d 1118
46 ERC 1865, 28 Envtl. L. Rep. 21,368,
98 Cal. Daily Op. Serv. 4866,
98 Daily Journal D.A.R. 6872
NATURAL RESOURCES DEFENSE COUNCIL; Trout Unlimited of
California; Bay Institute of San Francisco; California
Natural Resources Federation; California Sportfishing
Protection Alliance; California Trout; Friends of the
River; Northern California Guides Association; Pacific
Coast Federation of Fishermen's Associations; San Joaquin
Raptor Rescue Center; Sierra Club; Stanislaus Audubon
Society, Inc.; United Anglers of California; California
Striped Bass Association; National Audubon Society,
Plaintiffs-Appellees,
v.
David G. HOUSTON, Defendant,
and
Lower Tule River Irrigation District; Porterville
Irrigation District; Saucelito Irrigation District; Stone
Corral Irrigation District; Teapot Dome Water District,
Defendants-Intervenors-Appellants.
NATURAL RESOURCES DEFENSE COUNCIL; Trout Unlimited of
California; Bay Institute of San Francisco; California
Natural Resources Federation; California Sportfishing
Protection Alliance; California Trout; Friends of the
River; Northern California Guides Association; Pacific
Coast Federation of Fishermen's Associations; San Joaquin
Raptor Rescue Center; Sierra Club; Stanislaus Audubon
Society, Inc.; United Anglers of California; California
Striped Bass Association; National Audubon Society,
Plaintiffs-Appellees,
v.
David G. HOUSTON, Defendant,
and
Orange Cove Irrigation District; Delano-Earlimart
Irrigation District; Exeter Irrigation District; Ivanhoe
Irrigation District; Lindmore Irrigation District;
Lindsay-Strathmore Irrigation District; Terra Bella
Irrigation District, Defendants-Intervenors-Appellants.
NATURAL RESOURCES DEFENSE COUNCIL; Trout Unlimited of
California; Bay Institute of San Francisco; California
Natural Resources Federation; California Sportfishing
Protection Alliance; California Trout; Friends of the
River; Northern California Guides Association; Pacific
Coast Federation of Fishermen's Associations; San Joaquin
Raptor Rescue Center; Sierra Club; Stanislaus Audubon
Society, Inc.; United Anglers of California; California
Striped Bass Association; National Audubon Society,
Plaintiffs-Appellees,
v.
David G. HOUSTON, Defendant,
and
Friant Water Users Authority, Defendant-Appellant.
NATURAL RESOURCES DEFENSE COUNCIL; Trout Unlimited of
California; Bay Institute of San Francisco; California
Natural Resources Federation; California Sportfishing
Protection Alliance; California Trout; Friends of the
River; Northern California Guides Association; Pacific
Coast Federation of Fishermen's Associations; San Joaquin
Raptor Rescue Center; Sierra Club; Stanislaus Audubon
Society, Inc.; United Anglers of California; California
Striped Bass Association; National Audubon Society,
Plaintiffs-Appellees,
v.
David G. HOUSTON, Defendant,
and
Madera Irrigation District; Chowchilla Water District,
Defendants-Intervenors- Appellants.
NATURAL RESOURCES DEFENSE COUNCIL; Trout Unlimited of
California; Bay Institute of San Francisco; California
Natural Resources Federation; California Sportfishing
Protection Alliance; California Trout; Friends of the
River; Northern California Guides Association; Pacific
Coast Federation of Fishermen's Associations; San Joaquin
Raptor Rescue Center; Sierra Club; Stanislaus Audubon
Society, Inc.; United Anglers of California; California
Striped Bass Association; National Audubon Society,
Plaintiffs-Appellees,
v.
David G. HOUSTON, Defendant,
and
Arvin-Edison Water Storage District; Shafter-Wasco
Irrigation District; Southern San Joaquin
Municipal Utility District,
Defendants-intervenors- Appellants.
NATURAL RESOURCES DEFENSE COUNCIL; Trout Unlimited of
California; Bay Institute of San Francisco; California
Natural Resources Federation; California Sportfishing
Protection Alliance; California Trout; Friends of the
River; Northern California Guides Association; Pacific
Coast Federation of Fishermen's Associations; San Joaquin
Raptor Rescue Center; Sierra Club; Stanislaus Audubon
Society, Inc.; United Anglers of California; California
Striped Bass Association; National Audubon Society,
Plaintiffs-Appellees,
v.
David G. HOUSTON, Defendant,
and
Tulare Irrigation District, Defendant-Intervenor-Appellant.
NATURAL RESOURCES DEFENSE COUNCIL; Trout Unlimited of
California; Bay Institute of San Francisco; California
Natural Resources Federation; California Sportfishing
Protection Alliance; California Trout; Friends of the
River; Northern California Guides Association; Pacific
Coast Federation of Fishermen's Associations; San Joaquin
Raptor Rescue Center; Sierra Club; Stanislaus Audubon
Society, Inc.; United Anglers of California; California
Striped Bass Association; National Audubon Society,
Plaintiffs-Appellants,
v.
Roger PATTERSON, as Regional Director of the U.S. Bureau of
Reclamation; Bruce Babbitt; Friant Water Users
Authority, Defendants-Appellees,
and
Lower Tule River Irrigation District; Porterville
Irrigation District; Saucelito Irrigation District; Stone
Corral Irrigation District; Teapot Dome Water District,
Defendants-Intervenors- Appellees.
Nos. 97-16030, 97-16041, 97-16042 to 97-16045 and 97-16173.
United States Court of Appeals,
Ninth Circuit.
Argued Dec. 8, 1997.
Decided June 24, 1998.

Page 1122

Gregory K. Wilkinson, Best, Best & Krieger, LLP, Riverside, California, for defendant-appellant and appellee Friant Water Users Authority, and for defendants-intervenors-appellants Lindmore Irrigation District, Lindsay-Strathmore Irrigation District, Terra Bella Irrigation District, Exeter Irrigation District, Ivanhoe Irrigation District, Tulare Irrigation District, Lower Tule River Irrigation District, Saucelito Irrigation District, Delano-Earlimart Irrigation District, Teapot Dome Water District, Arvin-Edison Water Storage District, Southern San Joaquin Municipal Utility District, Shafter-Wasco Irrigation District, Porterville Irrigation District and Stone Corral Irrigation District.

Philip F. Atkins-Pattenson (argued), Sheppard, Mullin, Richter & Hampton, LLP, San Francisco, California, Hamilton Candee, Elizabeth R. Pulling, Natural Resource Defense Council, San Francisco, California, Patrick O'Donnell, Levy, Samrick & O'Donnell, San Francisco, California, Cynthia L. Koehler,

Page 1123

San Francisco, California, Michael R. Sherwood (on the brief), San Francisco, CA, for plaintiffs-appellees and cross-appellants.

Michael Victor Sexton, Minasian, Spruance, Baber, Meith, Soares & Sexton, LLP, Oroville, California, for defendant-intervenor-appellant Orange Cove Irrigation District.

Denslow Green, Madera, California, for defendants-appellants Chowchilla Water District and Madera Irrigation District.

Lois J. Schiffer, Assistant Attorney General, Robert L. Klarquist, Department of Justice, Environment & Natural Resources Division, Washington, D.C., for defendants-appellees Roger Patterson and Bruce Babbitt.

Daniel E. Lungren, Attorney General of California, Clifford T. Lee and Linus Masouredis, Deputy Attorneys General, San Francisco, California, for amici curiae State of California and California State Water Resources Control Board.

Appeals from the United States District Court for the Eastern District of California; Lawrence K. Karlton, District Judge, Presiding. D.C. No. CV 88-1658 LKK.

Before: SKOPIL, D.W. NELSON, and TASHIMA, Circuit Judges.

TASHIMA, Circuit Judge:

Various irrigation and water districts (Non-federal Defendants), that rely on water from the Friant dam, appeal the district court's summary judgment decision that the Bureau of Reclamation (Bureau or Federal Defendant), violated the Endangered Species Act (ESA) by renewing water contracts prior to completing required endangered species consultations. These defendants also appeal the district court's conclusion that Section 8 of the Reclamation Act, 43 U.S.C. § 383, mandates compliance with Section 5937 of the California Fish and Game Code. Various environmental groups led by the National Resources Defense Council (Plaintiffs), cross-appeal the district court's summary judgment decision that the Bureau was not required to comply with National Environmental Policy Act (NEPA) and appeal the dismissal of the Section 8/Section 5937 claim as unripe.

We affirm the district court's holding that the ESA was violated and its decision to rescind the contracts at issue. We remand for a determination on the Section 8/Section 5937 claim.

BACKGROUND

The Central Valley Project (CVP) is a multi-unit reclamation project administered by the Bureau. The Friant dam unit of the CVP was built on the San Joaquin River by the Bureau in the 1940s. Prior to construction of the dam, the San Joaquin River met the Sacramento River at the Sacramento-San Joaquin Delta, where they then flowed out to the Pacific Ocean. Since the time that the dam was completed, the Friant unit has impounded the San Joaquin River water behind the Friant dam and diverted the water to surrounding irrigation districts. This impoundment and diversion leaves a dry stretch of San Joaquin riverbed.

In the late 1940s, the Non-federal Defendants 1 entered into 40-year Friant water service contracts with the government, pursuant to Section 9(e) of the Reclamation Act of 1939, 43 U.S.C. § 485h(e). The contracts typically provided that they would be renewed no later than one year prior to expiration on terms that "shall be agreed upon." In 1956, Congress mandated that contract holders had a right to renewal "under stated terms and conditions mutually agreeable to the parties." 43 U.S.C. § 485h-1(1). Contract holders had "a first right ... to a stated share or quantity of the project's available water supply...." 43 U.S.C. § 485h-1(4).

The first of these contracts, the contract with the Orange Cove Irrigation District (Orange Cove), expired in February of 1989. The Bureau began contract renewal negotiations with Orange Cove in June, 1988, and executed a renewal contract in May, 1989. By 1992, the Bureau had executed...

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99 practice notes
  • Pacific Coast Federation v. Gutierrez, No. 1:06-CV-00245 OWW GSA.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • July 18, 2008
    ...south-of-Delta CVP contractors are, for the purposes of Home Builders, "discretionary" and are subject to the ESA. See NRDC v. Houston, 146 F.3d 1118, 1126 (9th Cir.1998); O'Neill v. United States, 50 F.3d 677, 686 (9th 12. When Congress authorized the CVP in 1937, it stated that Project "d......
  • Conservation Cong. v. United States Forest Serv., NO. CIV. S-11-2605 LKK/EFB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • June 19, 2012
    ..."may affect" critical species or habitats, formal consultation is ordinarily mandated. Natural Resources Defense Council v. Houston, 146 F.3d 1118, 1126 (9th Cir. 1998) (citing Thomas v. Peterson, 753 F.2d 754, 763 (9th Cir. 1985); 50 C.F.R. § 402.14(a)). Formal consultation is excused only......
  • Coal. for a Sustainable Delta v. Fed. Emergency Mgmt. Agency, 1:09-cv-02024 OWW GSA
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • August 19, 2011
    ...437 U.S. at 173, 98 S.Ct. 2279 (Section 7(a)(2)'s language "admits of no exception"); Natural Res. Def. Council ("NRDC") v. Houston, 146 F.3d 1118, 1125 (9th Cir. 1998) ("The term 'agency action' has been defined broadly"); Pacific Rivers Council, 30 F.3d at 1055 ("Following the Supreme Cou......
  • Center for Biological Diversity v. Brennan, No. C 06-7062 SBA.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • August 21, 2007
    ...is specifically defined by the APA to include the "failure to act." 5 U.S.C. § 551(13); see also Natural Res. Def. Council v. Houston, 146 F.3d 1118, 1125 (9th Cir.1998); Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1055 (9th 2. The Mandamus Statute In addition to the APA, the plaintiffs......
  • Request a trial to view additional results
96 cases
  • Pacific Coast Federation v. Gutierrez, No. 1:06-CV-00245 OWW GSA.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • July 18, 2008
    ...south-of-Delta CVP contractors are, for the purposes of Home Builders, "discretionary" and are subject to the ESA. See NRDC v. Houston, 146 F.3d 1118, 1126 (9th Cir.1998); O'Neill v. United States, 50 F.3d 677, 686 (9th 12. When Congress authorized the CVP in 1937, it stated that Project "d......
  • Conservation Cong. v. United States Forest Serv., NO. CIV. S-11-2605 LKK/EFB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • June 19, 2012
    ..."may affect" critical species or habitats, formal consultation is ordinarily mandated. Natural Resources Defense Council v. Houston, 146 F.3d 1118, 1126 (9th Cir. 1998) (citing Thomas v. Peterson, 753 F.2d 754, 763 (9th Cir. 1985); 50 C.F.R. § 402.14(a)). Formal consultation is excused only......
  • Coal. for a Sustainable Delta v. Fed. Emergency Mgmt. Agency, 1:09-cv-02024 OWW GSA
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • August 19, 2011
    ...437 U.S. at 173, 98 S.Ct. 2279 (Section 7(a)(2)'s language "admits of no exception"); Natural Res. Def. Council ("NRDC") v. Houston, 146 F.3d 1118, 1125 (9th Cir. 1998) ("The term 'agency action' has been defined broadly"); Pacific Rivers Council, 30 F.3d at 1055 ("Following the Supreme Cou......
  • Center for Biological Diversity v. Brennan, No. C 06-7062 SBA.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • August 21, 2007
    ...is specifically defined by the APA to include the "failure to act." 5 U.S.C. § 551(13); see also Natural Res. Def. Council v. Houston, 146 F.3d 1118, 1125 (9th Cir.1998); Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1055 (9th 2. The Mandamus Statute In addition to the APA, the plaintiffs......
  • Request a trial to view additional results
1 books & journal articles
  • Federal Agency Conservation Obligations and Consultation Under §7 of the ESA
    • United States
    • Endangered species deskbook
    • April 22, 2010
    ...only prospective actions, but all actions contemplated by agencies are subject to ESA scrutiny); Natural Res. Def. Council v. Houston, 146 F.3d 1118, 1125-27, 28 ELR 21368 (9th Cir. 1997) (renewal of existing contract is “agency action” under the ESA, at least when the agency has some discr......

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