Last week, IPR filed an amicus curiae brief in the Ninth Circuit Court of Appeals supporting a petition for rehearing in NRDC v. Salazar, 686 F.3d 1092 (9th Cir. 2012). Plaintiffs in the case alleged that, in violation of section 7(a)(2) of the Endangered Species Act (ESA), the Bureau of Reclamation (BuRec) failed to adequately consult with the Fish and Wildlife Service (FWS) concerning the impacts on the endangered delta smelt when it renewed two sets of water contracts in California’s Central Valley Project. The Ninth Circuit held that, because BuRec lacked discretion over renewal of one set of contracts, section 7(a)(2) did not apply to those renewals. The panel also held that Plaintiffs lacked standing to challenge the other set of contracts because they had failed to establish a sufficient causal connection between the contract renewal and jeopardy to the delta smelt. IPR represented a group of natural resources law professors advocating that the Ninth Circuit should rehear the case because the panel’s decision was contrary to precedent and could have serious environmental consequences and negative impacts on procedural standing doctrine.
IPR argued that the majority’s discretion holding unnecessarily constrains the agency by requiring contract renewal without renegotiation of any terms. Such a restriction conflicts with California’s rule of reasonable and beneficial use, which requires that the State’s limited water supply be used reasonably and in the public interest, in the context of current environmental conditions such as drought and climate change. IPR also argued that the standing decision shields BuRec’s procedural failure from judicial review. The ESA’s consultation requirement helps agencies take steps to protect listed species before their actions cause harm, and this holding inhibits plaintiffs from enforcing that requirement.
The day after the Plaintiffs filed their petition for rehearing, the court ordered the defendants to file a response. All of the defendants moved to extend the time to file a response until November 16.