In a recent opinion, the United States Court of Appeals for the Ninth Circuit reversed in part the United States District Court for the Eastern District of California’s grant of summary judgment to the National Marine Fisheries Service (“NMFS”) in Friends of the River v. NMFS, No. 18-15623 (9th Cir. Oct. 3, 2019).

Plaintiff Friends of the River (“FOR”) challenged (1) NMFS’ decision to characterize the existence of federally-managed dams on the Yuba River as part of the environmental baseline in a 2014 BiOp and Letter of Concurrence (“LOC”) issued to the Corps for the dams; (2) the Corps’ issuance of licenses to operate existing water diversions and hydroelectric facilities, which it claimed violated the Endangered Species Act by authorizing activities that would take listed fish without an incidental take statement; and (3) NMFS and the Corps’ failure to reinitiate consultation because of allegedly changed circumstances. As we previously reported, the District Court rejected all of FOR’s claims.

The Ninth Circuit found that NMFS’s treatment of the dams as part of the “environmental baseline” was arbitrary and capricious. Prior to 2014, NMFS had treated the dams as part of the “agency action.” Thus, NMFS was required to provide a “reasoned explanation” for considering the dams to be part of the “environmental baseline” in the 2014 BiOp and LOC. The Ninth Circuit found that NMFS failed to adequately explain why it changed its approach, and remanded the BiOp and LOC to NMFS to “reassess.”

The Ninth Circuit also remanded to the district court the question of whether the Corps was taking threatened fish by licensing and granting easements to third parties to operate water diversions and hydroelectric facilities, because the district court had not fully analyzed this claim.  However, the Ninth Circuit affirmed the district court’s holding that NMFS and the Corps were not required to reinitiate consultation based on new information, because FOR failed to identify how new information revealed effects that had not been previously considered in the 2014 BiOp and LOC, and because FOR failed to comply with the requirement to provide NMFS with 60 days’ notice of this claim.