Home » Case Summaries » 2015 » Natural Resources Defense Council v. Jewell, 749 F.3d 776 (9th Cir. 2014)


Natural Resources Defense Council v. Jewell, 749 F.3d 776 (9th Cir. 2014)


The Natural Resources Defense Council, along with other nonprofit environmental action groups (collectively, NRDC),[1] appealed a final judgment of the United States District Court for the Eastern District of California. The district court held that NRDC lacked standing to challenge certain water-supply agreements renewed by the Bureau of Reclamation (BOR). For the remaining agreements at issue, the district court held that BOR was not required to engage in the consultation requirement contained in section 7 of the Endangered Species Act (ESA).[2] The Ninth Circuit reversed, holding that the appeal was not moot, NRDC had standing, and BOR was required to consult with the Fish and Wildlife Services (FWS).

BOR manages California’s Central Valley Project, a water storage and distribution system that diverts water for California water users from the California River Delta. The California River Delta is home to the delta smelt (Hypomesus transpacificus), a fish listed as a “threatened” species under the ESA.[3] According to FWS, delta water diversions—including the Central Valley Project—are a significant cause of decline in the delta smelt population.[4] In the early 2000s, BOR consulted with FWS regarding the renewal of water-supply agreements pertaining to the Central Valley Project. The agreements consisted of the Delta-Mendota Canal Unit Water Service Contracts (DMC Contracts) and the Sacramento River Settlement Contracts (Settlement Contracts). In 2004 and 2005 FWS issued Biological Opinions as a result of its consultation with BOR. The opinions concluded that the renewal would not jeopardize the delta smelt, but both were ultimately invalidated.

However, before this invalidation, BOR also prepared a biological assessment, concluding that the renewal of the DMC and Settlement Contracts would not adversely affect delta smelt populations. FWS concurred with this determination via a series of letters but did not evaluate the agreements’ potential effects beyond what was invalidated in the Biological Opinions. Based on these concurring letters, BOR renewed 141 Settlement Contracts and 18 DMC Contracts.

FWS issued a revised Biological Opinion in 2008, which concluded that the agreements’ renewal would jeopardize delta smelt populations. During that same year, NRDC challenged the validity of certain Settlement and DMC Contracts they deemed most harmful to the delta smelt. NRDC argued that BoR violated section 7 of the ESA by failing to adequately consult with FWS before renewing the agreements. The district court granted BOR’s motion for summary judgment, and the Ninth Circuit granted a rehearing en banc. The Ninth Circuit reviewed the district court’s grant of BOR’s summary judgment motion de novo.

The Ninth Circuit first rejected BOR’s claim that intervening events rendered the action moot. BOR argued that its FWS consultation leading to the 2008 Biological Opinion provided NRDC with the relief they sought, and no actual controversy remained.[5] However, the Ninth Circuit explained that the 2008 Biological Opinion only assessed BOR’s general renewal plan, and not the impact of BOR’s decision to renew the specific agreements at issue. These specific agreements were renewed based on the previous, invalidated Biological Opinions, and BOR neither reconsulted with FWS nor amended the challenged agreements to acknowledge the 2008 Biological Opinion. Since NRDC sought an injunction requiring reconsultation and amendments, the Ninth Circuit concluded that relief remained available.

The Ninth Circuit also rejected BOR’s claim that NRDC lacked Article III standing to challenge the DMC Contracts. BOR argued that NRDC’s injury was not fairly traceable to the alleged violation.[6] A provision within the DMC Contracts absolved BOR of liability if it breached certain contractual provisions to meet legal obligations, such as section 7 of the ESA. Due to this provision, BOR contended there was no causal link between the agreements and harm to the delta smelt. The Ninth Circuit dismissed this reasoning, explaining that NRDC only needed to show that compliance with section 7 might result in protecting its concrete interests.[7] The provision did not expressly require any actions to protect the delta smelt; and even if it was read to do so, there remained other contractual methods that would provide protection. As further consultation and amendments to the DMC Contracts could lead to such methods, the Ninth Circuit held that the NRDC had standing to challenge the DMC Contracts.

Lastly, the Ninth Circuit rejected BOR’s claim that it was not required to consult FWS to renew the Settlement Contracts. BOR argued that Article 9(a) of the Settlement Contracts substantially limited the agency’s discretion when renewing the agreements with regard to “the quantities of water and the allocation thereof. . . .”[8] Therefore, BOR contended that the section 7 consultation requirement was not triggered.[9] The Ninth Circuit held this reasoning erroneous, stating that an agency only lacks discretion if another legal obligation makes it impossible to exercise that discretion. After reviewing the challenged agreements, the court held that BOR was not required to renew the Settlement Contracts, and if it was, the provision still allowed the agency to renegotiate other terms. In both instances, the court held BOR retained discretion that could benefit the delta smelt and was therefore required to consult FWS.

In conclusion, the court reaffirmed that federal agencies must adhere to the consultation requirement of section 7 of the ESA prior to taking any agency action that could affect an endangered or threatened species or its critical habitat. Thus, the Ninth Circuit reversed the district court’s judgment and remanded the case for further proceedings.


Footnotes    (↵ returns to text)

  1. Natural Resources Defense Council, California Trout, San Francisco Baykeeper, Friends of the River, and the Bay Institute all appeared as Plaintiff-Appellants.
  2. Endangered Species Act Amendments of 1982, 16 U.S.C. § 1536(a)(2) (2012).
  3. Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for the Delta Smelt, 58 Fed. Reg. 12,854, 12,855 (Mar. 5, 1993) (to be codified at 50 C.F.R. pt. 17).
  4. Id. at 12,859–60.
  5. See Forest Guardians v. Johanns, 450 F.3d 455, 461 (9th Cir. 2006) (“The party asserting mootness bears the burden of establishing that there is no effective relief that the court can provide.”).
  6. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (holding that a party must demonstrate, in part, that its injury is fairly traceable to the challenged conduct to establish Article III standing).
  7. An alleged violation under section 7(a)(2) of the ESA is a procedural violation. See Defenders of Wildlife v. U.S. Envtl. Prot. Agency, 420 F.3d 946, 957 (9th Cir. 2005) (requiring both substantive and procedural harm for a violation of section 7(a)(2)). To establish standing for a procedural violation, a litigant need only demonstrate that compliance may protect his concrete interests. Id.
  8. Natural Resources Defense Council v. Jewell, 749 F.3d 776, 784 (9th Cir. 2014).
  9. Section 7’s consultation requirement is triggered if a federal agency retains “some discretion” to take action for the benefit of a protected species. Karuk Tribe v. U.S. Forest Serv., 681 F.3d 1006, 1024 (9th Cir. 2012).
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