Recent Ninth Circuit ESA Decision May Be Headed to the U.S. Supreme Court


On July 14, Glenn-Colusa Irrigation District (GCID) filed a petition for writ of certiorari (pdf) with the U.S. Supreme Court, seeking review of the Ninth Circuit’s decision in Glenn-Colusa Irrigation District v. Natural Resources Defense Council, 749 F.3d 776 (9th Cir. 2014). In an en banc decision, the Ninth Circuit found that a U.S. Bureau of Reclamation (Reclamation) action renewing settlement contracts with senior water rights holders is subject to consultation under section 7(a)(2) of the Endangered Species Act (ESA), 16 U.S.C. § 1536(a)(2). The Ninth Circuit’s decision rested on its interpretation of the settlement contracts which, according to the Court, “did not strip” Reclamation of its discretion to act to benefit the delta smelt and its designated critical habitat. Concluding that Reclamation can choose not to renew the contracts and, alternatively, otherwise condition the contracts to benefit the delta smelt, the Court held that Reclamation had the requisite discretion for ESA consultation.

GCID’s petition argues that the Ninth Circuit’s decision merits U.S. Supreme Court review because it contradicts the U.S. Supreme Court’s decision in National Association of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007) (Home Builders) and is at odds with the D.C. Circuit’s decision in Platte River Whooping Crane Critical Habitat Maintenance Trust v. Federal Energy Regulatory Commission, 962 F.2d 27 (D.C. Cir. 1992) (Platte River).

In Home Builders, the Supreme Court held that section 7(a)(2) applies only to discretionary agency actions. GCID argues that the Ninth’s Circuit decision is contrary to Home Builders because Reclamation is directed under federal and state law to renew the settlement contracts and, therefore, lacks the requisite discretion under the ESA.

In Platte River, the D.C. Circuit held that a federal agency lacks ESA discretion where it is not unilaterally authorized to amend the terms of a license. GCID argues that Platte River is analogous to Reclamation’s action to bilaterally renegotiate settlement contracts with Central Valley Project contractors.

Responses to the petition are due on August 15, 2014.

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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