San Luis Obispo Coastkeeper v. Santa Maria Valley Water Conservation Dist.
| Decision Date | 23 September 2022 |
| Docket Number | 21-55479 |
| Parties | SAN LUIS OBISPO COASTKEEPER; LOS PADRES FORESTWATCH, Plaintiffs-Appellants, v. SANTA MARIA VALLEY WATER CONSERVATION DISTRICT; SANTA MARIA VALLEY WATER CONSERVATION DISTRICT BOARD OF DIRECTORS; U.S. DEPARTMENT OF THE INTERIOR; UNITED STATES BUREAU OF RECLAMATION; BRENDA BURMAN, Commissioner of the United States Bureau of Reclamation, Defendants-Appellees, and GOLDEN STATE WATER COMPANY; CITY OF SANTA MARIA, Intervenor-Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Argued and Submitted April 4, 2022 Pasadena, California
Appeal from the United States District Court for the Central District of California Andre Birotte, Jr., District Judge Presiding D.C. No. 2:19-cv-08696- AB-JPR
Erica A. Maharg (argued) and Jason R. Flanders, Aqua Terra Aeris Law Group, Oakland, California; Daniel Cooper, Sycamore Law San Francisco, California; Margaret Hall and Linda Krop Environmental Defense Center, Santa Barbara, California; for Plaintiffs-Appellants.
Kevin W. McArdle (argued), Robert J. Lundman, and Bridget McNeil Attorneys; Todd Kim, Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Amy L. Aufdemberge, Attorney, United States Department of the Interior, Washington, D.C.; for Defendants-Appellees U.S. Department of the Interior, United States Bureau of Reclamation, and Brenda Burman.
Mario A. Juarez (argued) and Richard E. Adam Jr., Law Office of Juarez Adam &Farley, Santa Maria, California, for Defendants-Appellees Santa Maria Valley Water Conservation District and Santa Maria Valley Water Conservation District Board of Directors.
Jeffrey Dunn (argued) and Daniel Richards, Best Best &Krieger LLP, Irvine, California, California; for Intervenor-Defendants-Appellees.
Tara Mueller (argued), Courtney Covington, Colleen Flannery, Daniel Fuchs, and Jeffrey Reusch, Deputy Attorneys General; Tracy L. Winsor, Supervising Deputy Attorney; Robert W. Byrne, Senior Assistant Attorney General; Rob Bonta, Attorney General; Attorney General's Office, Sacramento, California; for Amicus Curiae State of California.
Before: Mary M. Schroeder, Sidney R. Thomas, and Carlos T. Bea, Circuit Judges.
SUMMARY[*]
The panel reversed the district court's summary judgment in favor of the Bureau of Reclamation and the Santa Maria Water District (collectively, the "Agencies") in an action brought by San Luis Obispo Coastkeeper and Los Padres ForestWatch ("Plaintiffs"), claiming that the Agencies' operation of Twitchell Dam interfered with Southern California Steelhead's reproductive migration, which constituted an unlawful take in violation of the Endangered Species Act ("ESA").
Under the ESA, Southern California Steelhead are a "distinct population segment" (DPS) because they are substantially reproductively isolated from other populations and contribute significantly to ecological and genetic diversity of the biological species. Twitchell Dam, which was constructed in 1958 within the Santa Maria River watershed, has contributed to the endangerment of Southern California Steelhead populations. Public Law 774 ("PL 774") authorized the construction of the Twitchell Dam, pursuant to the laws of California relating to water rights, and in accordance with the recommendations of the Secretary of the Interior (the "Secretary's Report"). Statements from the U.S. Fish and Wildlife Service and the California Department of Fish and Game ("CFDG") are included in the Secretary's Report; the Service stated that the dam's impact on the steelhead fishery would be insignificant, and the CDFG recommended against providing water released to preserve the fishery. The Agencies are jointly responsible for the dam's operation. The Agencies moved for summary judgment, arguing that PL 774 afforded the Agencies no discretion to release any dam water to preserve endangered Southern California Steelhead, and thus they could not be liable for take under the ESA.
The panel held that under PL 774, the Agencies had discretion to release water from Twitchell Dam to avoid take of endangered Southern California Steelhead. The panel held that PL 774 expressly authorized Twitchell Dam to be operated for "other purposes" beyond the enumerated purposes. As a secondary priority, PL 774 also required the Agencies operate the dam substantially in accordance with the Secretary's Report. The statutory requirement of substantial compliance-rather than strict compliance-with the Secretary's Report explicitly grants discretion to the Agencies to adjust the dam's flow rate.
The panel held that this interpretation is buttressed by the principles of statutory construction. Because PL 774 and the ESA can easily be read to work in harmony, it was the panel's duty to do so. Here, there is no clear Congressional intent to preclude the dam from being operated to avoid take of Southern California Steelhead. There is no implied conflict between PL 774 and the ESA. Twitchell Dam can readily be operated to provide modest releases at certain times of the year and during certain water years, while still satisfying the dam's primary purpose of conserving water for consumptive purposes. The panel rejected the dissent's reliance on the principle of ejusdem generis to argue that the preservation of endangered fish species was an impermissible "other purpose" for the dam.
The panel remanded for further proceedings. The panel did not reach the requirements under California water law or any other issues urged by the parties. The panel also did not reach the question of how the Agencies might be required to exercise their discretion in order to come into compliance with the requirements of the ESA. The panel left those issues for consideration by the district court in the first instance.
Judge Bea dissented. As he read the Secretary's Report, Twitchell Dam was meant to conserve all the water from the Cuyama River during the region's short rainy season for use during the long dry season by the residents, farms, and industries in the Santa Maria basin. All the water conserved by Twitchell Dam was to be released into the Santa Maria aquifer during the dry season. Release of water for the purpose of maintaining fish below Twitchell Dam and adopting other measures to perpetuate the run of steelhead trout up the Santa Maria River were specifically considered and rejected, with full knowledge by Congress that steelhead trout would be prejudiced by the construction and planned operation of Twitchell Dam.
Judge Bea wrote that the majority's textual analysis of PL 774 fundamentally misreads PL 774 and the Secretary's Report. By disregarding the limiting principles that PL 774 and the Secretary's Report impose on the kinds of purposes for which Twitchell Dam can be reported, the majority adopts an interpretation of PL 774 that violates the non-delegation doctrine of constitutional law. As he read PL 774, the meaning of the phrase "other purposes" was constrained by the specific terms that precede it pursuant to the canon of ejusdem generis. In addition, the ESA's subsequent, but general, prohibition of "any person" from the "take" of a listed endangered species does not override PL 774. He would affirm the district court's order granting summary judgment to the Agencies and other defendants.
We consider in this case whether the Bureau of Reclamation and the Santa Maria Water District (collectively, the "Agencies") have discretion to manage and operate Twitchell Dam for the purpose of preventing take of Southern California Steelhead. We conclude that the relevant statute affords the Agencies discretion to operate the dam for this purpose, and reverse the judgment of this district court.
Congress enacted the Endangered Species Act of 1973 ("Endangered Species Act" or "ESA"), 16 U.S.C. §§ 1531-1544, "to halt and reverse the trend toward species extinction, whatever the cost." Tenn. Valley Auth v. Hill, 437 U.S. 153, 184 (1978). The purpose of enacting the ESA was "to require agencies to afford first priority to the declared national policy of saving endangered species." Id. at 185.
Southern California Steelhead are an endangered salmonid with a habitat between the Santa Maria River and the border of Mexico. Since 1997, Southern California Steelhead have been identified as being "in danger of extinction throughout all or a significant portion of its range." 62 Fed.Reg 43937-01 (Aug. 18, 1997); 16 U.S.C. § 1532(6). Under the ESA, Southern California Steelhead are a "distinct population segment" (DPS) because they are substantially reproductively isolated from other populations and contribute significantly to the ecological or genetic diversity of the biological species. 62 Fed.Reg. 43937-01 (Aug. 18, 1997); 61 Fed.Reg. 4722-01 (Feb. 7, 1996). Southern California Steelhead's status as a DPS qualifies them for protection as a separate species from other populations of Oncorhynchus mykiss along the West Coast of North America. 62 Fed.Reg. 43937-01 (Aug. 18, 1997).
Historically the Santa Maria River system provided a migratory habitat for Southern California Steelhead. The Santa Maria River is formed by the confluence of the Cuyama and Sisquoc Rivers, and drains into the Pacific Ocean near Guadalupe in northwestern Santa Barbara County. Although the lower Santa Maria River remains dry most of the time, during sporadic periods of high precipitation, freshwater from the Cuyama and Sisquoc Rivers used to run directly through the Santa Maria into the ocean. Southern California Steelhead are an anadromous-or ocean-going-species with adults spawning in freshwater, and juveniles rearing in freshwater before migrating to the...
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