San Luis Obispo Coastkeeper v. Santa Maria Valley Water Conservation Dist.

• Decision Date: 23 September 2022
• Docket Number: 21-55479
• Citation: 49 F.4th 1242
• 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

49 F.4th 1242

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.

No. 21-55479

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 4, 2022 Pasadena, California
Filed September 23, 2022

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.

Dissent by Judge Bea

S.R. THOMAS, Circuit Judge:

49 F.4th 1244

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.

I

A

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, 98 S.Ct. 2279, 57 L.Ed.2d 117 (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, 98 S.Ct. 2279.

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

49 F.4th 1245

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 ocean to grow, mature, and then return to freshwater to reproduce as adults. Thus, during high precipitation periods, Southern California Steelhead were able to migrate to and from the ocean to mature and replenish their population.

Twitchell Dam, which was constructed in 1958 within the Santa Maria River watershed, has contributed to the endangerment of Southern California Steelhead populations. Twitchell is situated on the Cuyama River about six miles upstream from its convergence with the Sisquoc River. Following the dam's construction, Southern California Steelhead rarely migrated to the ocean, even in the highest precipitation years, because Twitchell Dam is presently operated to retain water during high precipitation periods. The water is then released from behind the dam during dry periods at a rate designed to maximize percolation into the dry riverbed and recharge the groundwater basin. Thus, almost all of the freshwater flowing from the Cuyama and Sisquoc percolates into the riverbed instead of reaching the lower Santa Maria River. As a result, the Santa Maria River has insufficient flow to sustain Southern California Steelhead migration to the ocean, preventing them from completing their reproductive cycle.

B

Public Law 774 ("PL 774"), the legislation authorizing the construction of Twitchell Dam, is the primary basis of contention between the parties. In pertinent part, it provides:

[T]he Secretary of the Interior is hereby authorized to construct the project for irrigation and the conservation of water, flood control, and for other purposes, on Santa Maria River, California, pursuant to the laws of California relating to water and water rights, and, otherwise substantially in accordance with the recommendations of the Secretary of the Interior dated January 16, 1953 [hereinafter, the "Secretary's Report" or the "Report"]....

Act of Sept. 3, 1954, Pub. L. No. 83-774, 68 Stat. 1190.

The Secretary's Report includes detailed project plans for the dam and reservoir, including a recommended flow rate for water releases from the dam. The Report explains that the project's primary purpose is to recharge the Santa Maria River Valley's groundwater aquifer and to eliminate the threat of extensive flood damage. The report identifies examples of other permissible uses, including municipal and industrial uses, of the dam water. Statements from the U.S. Fish and Wildlife Service ("FWS") and the California Department of Fish and Game ("CDFG"; now, the California Department of Fish & Wildlife) are included in the Report. The FWS stated that the dam's impacts on the steelhead fishery would be insignificant. The CDFG recommended against providing water releases to preserve the fishery.

The Bureau of Reclamation is responsible for establishing the operational rules for Twitchell Dam. The Santa Maria Water District handles the day-to-day operation of the dam, in accordance with the rules set by the Bureau. The Agencies are jointly responsible for the dam's operation.

49 F.4th 1246

II

San Luis Obispo Coastkeeper and Los Padres ForestWatch sued the Agencies, claiming that their operation of Twitchell Dam interferes with Southern California Steelhead's reproductive migration, which constitutes an unlawful take in violation of the ESA. They sought declaratory relief and an injunction requiring properly timed water releases of appropriate magnitude and duration to support Southern California Steelhead reproduction.

The Agencies, along with various intervenors, moved for summary judgment, arguing that PL 774 affords the Agencies no discretion to release any amount of dam water to preserve endangered Southern California Steelhead and, thus, that they could not be liable for take under the ESA. The district court agreed and granted summary judgment.

We have jurisdiction over the district court's entry of final judgment pursuant to 28 U.S.C. § 1291, and we review the district court's summary judgment order de novo. L. F. v. Lake Wash. Sch. Dist. #414 , 947 F.3d 621, 625 (9th Cir. 2020).

III

Section 9 of the ESA makes it unlawful for all persons, including federal and state agencies, to "take" endangered species. 16 U.S.C. §§ 1532(13), 1538(a)(1)(B). The term "take" is defined broadly to include "kill" and "harm," 16 U.S.C. § 1532(19), which in turn includes significant habitat modification that results in injury or death by "impairing essential behavioral patterns," 50 C.F.R. § 222.102. The current operation of Twitchell Dam harms Southern California Steelhead by impairing their ability to migrate and reproduce.

An ESA § 9 claim cannot succeed unless the agency's conduct is the proximate cause of the alleged take. Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or. , 515 U.S. 687, 696 n.9, 700 n.13, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995). Because the parties assume that agency discretion is required to establish proximate cause, we evaluate whether, under PL 774, the Agencies have any discretion to release any amount of water from Twitchell Dam to avoid take of endangered Southern California Steelhead.¹ We conclude that they do.

A

Generally, "[i]f the statutory language is clear, that is the end of our inquiry." A-1 Ambulance Serv., Inc. v. California , 202 F.3d 1238, 1244 (9th Cir. 2000). PL 774 expressly authorizes Twitchell Dam to be operated for "other purposes" in addition to the enumerated purposes of "irrigation and the conservation of...