Legal update: Delta smelt and whooping crane cases show ‘increasing pressure mounting against the Endangered Species Act in the courts’

gavel_scale_of_justice_400_clr_2880At the October 30th meeting of the Delta Stewardship Council, legal intern Cody Phillips briefed the council members on recent litigation regarding California water and related issues.

He began with the recent development between the Friant Water Authority and the State Water Resources Control Board. “Friant filed a petition in Fresno County Superior Court for a writ of mandate contesting the Executive Director of the State Board’s actions in responding to Temporary Urgency Change Petitions over the past 9 months,” he said. “These petitions were initiated by the Governor’s emergency regulations and allows users to petition for a change in flow or water quality, depending upon the needs of those petitioning. Friant is alleging that the Executive Director’s decisions in handling these petitions was unilateral and unlawful, and dramatically reduced the water supply for those who depend on it. Friant further alleges that the State Board abdicated its authority to the Executive Director which Friant says itself was a flawed and inappropriate action. This development is in its earliest stages and we will be monitoring it as the issue progresses.”

He then discussed two recent endangered species cases, the first of which is centered around the Delta smelt. “Two petitions for a writ of certiorari regarding the 9th Circuit’s decision in San Luis and Delta Mendota Water Authority vs. Jewell were filed in the Supreme Court of the United States earlier this month,” he said. “One of the petitions was filed by a group of farmers; the other petition was filed by the State Water Contractors and several water districts.”

delta_smelt_by_metric_ruler_usfwsThe petitioners argued that review by the Supreme Court is warranted in this Delta smelt case because there is a conflict between the 9th and 4th circuits over whether an agency must consider the effects on third parties when proposing Reasonable and Prudent Alternatives to agency actions. The petitioners also argued that whether the ESA requires or exempts an agency from considering the economic impact of its proposed restrictions on agency activity on third parties is a question of ongoing importance, given that the federal government conducts thousands of endangered species act consultations each year.”

The petitioners state that by failing to consider the question of feasibility, the Fish and Wildlife Service failed to consider a key facet of the issue and in so doing, acted arbitrarily and capriciously,” he said. “Petitioners argue importantly that this would not mean that the Fish and Wildlife Service would be allowed to balance the value of the life of the Delta smelt against the impact of restrictions on given project operations; rather, they argue that in choosing among possible alternatives that would avoid jeopardy, an agency would need to consider the impact on effective alternatives on third parties ‘in order to avoid unnecessary harm to humans in the course of protecting plants and animals.’ So the Supreme Court will be evaluating these petitions over the next few months, and we’ll keep you posted on what the court decides to do.”

20110214-USDA-JN-0001On a related issue, there is a similar case surrounding the Endangered Species Act occurring in the Gulf Coast which has already affected court decisions here in Northern California, Mr. Phillips said. “That fight is the 5th Circuit Case of the Aransas Project vs. Shaw which involved allegations that the Texas Commission on Environmental Quality had taken endangered whooping cranes by issuing water withdrawal permits that were alleged to have resulted in the deaths of 23 whooping cranes,” he said. “Reversing the district court, the Fifth Circuit held that the chain of events linking these permits to the deaths of the whooping cranes was not sufficiently direct or foreseeable to sustain a claim under the Endangered Species Act.”

Mr. Phillips said that the case was recent cited and the reasoning applied in the case, California Riverwatch vs. County of Sonoma. “In that case, the federal court rejected the theory that an agency can be held liable for taking of endangered species simply by issuing permits,” he said. “The plaintiff in that case alleged that permits which the county issues for vineyard development would harm the endangered California tiger salamander because of the potential for vineyards to be developed in areas that are listed as critical habitat for those species. The plaintiffs therefore claimed that the County should be held liable under the Endangered Species Act before issuing the permits. The federal district court in San Francisco disagreed, holding that the connection between issuing vineyard permits and any potential future harm to the salamanders was too tenuous, and the court found that Riverwatch was not able to single out any specific take that would occur because of the permit’s issuance, and as such the case was not ripe for review.”

Cody Phillips OctoberThese cases have a far broader application then to just whooping cranes and salamanders, and that’s why we’re updating you on them,” he continued. “The idea of state liability for government-issued water diversion permits through a long line of causation hits especially close to home. Due to the fact that it can be difficult to hold any one party directly responsible for the impact of these activities however, environmental groups have turned to holding state and local agencies vicariously liable for failing to use their regulatory powers to prevent harm to federally protected species. The Fifth Circuit’s decision in the Aransas Project will make it difficult for them to do so. With that case, the standard now seems to be that the state and local government regulators are open to liability under the Endangered Species Act only when their actions directly harm protected species.”

Taken together, the cases that we just discussed show an increasing amount of pressure mounting against the Endangered Species Act in the courts,” he said. “This pressure combined with the severity and duration of the drought currently affecting the West in this country may force the Supreme Court’s hand in evaluating long-held Endangered Species Act precedent.”

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