Ninth Circuit Dismisses Challenge to Injunction in Delta Smelt Case

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The United States Court of Appeals for the Ninth Circuit has granted (pdf) a motion by appellees to dismiss an appeal pursued by the Natural Resources Defense Council and other organizations from an interim order enjoining one component of a reasonable and prudent alternative imposed by the Fish and Wildlife Service on operations of the Central Valley Project and State Water Project.  The order, which we reported on here, enjoined implementation of a water management action, referred to as the “Fall X2 Action,” which requires a combination of reservoir releases upstream from the Delta and reductions of water exports south of the Delta to maintain a monthly average location of two parts per thousand salinity (X2) no greater (more eastward) than 74 kilometers (km) from the Golden Gate Bridge in wet years, such as 2011.  The lower court had previously held that the Service's biological opinion and reasonable and prudent alternative violated the Administrative Procedure Act and Endangered Species Act, as we reported here.

The injunction was amended after it was initially issued to cover the period from October 15 to December 1, 2011, only.  Despite this fact, NRDC and others pursued their appeal even after the injunction expired.  The court held that because the period for implementation of the Fall X2 Action had passed, the challenge to the injunction was moot.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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