Little Fish Get En Banc Reversal in 9th Circuit
(CN) - Fish and Wildlife Service scientists must have a say on the renewal of water contracts that could affect the endangered delta smelt in California's Central Valley, the full 9th circuit ruled Wednesday.
The National Resources Defense Council and other groups challenged the Bureau of Reclamation's 2005 renewal of 41 water contracts in the Central Valley, claiming that the government had failed to consult with wildlife officials on whether the renewed irrigation contracts would harm the delta smelt.
A tiny fish native to the San Joaquin and Sacramento Rivers Delta Estuary, the delta smelt was declared endangered in 1993.
U.S. District Judge Oliver Wanger dismissed the case in Fresno, finding that the environmental groups lacked standing and that bureau was not required to consult with scientists under the Endangered Species Act (ESA) because prior settlements limited its discretion.
A three-judge appeals panel affirmed in 2012, but the 9th Circuit later agreed to consider the issue before an 11-judge, en banc panel.
Nearly seven months after that rehearing , the court issued a unanimous reversal Wednesday.
Contrary to the government's argument, a new biological opinion released in 2008 did not moot the case, the 20-page ruling states. The court also found that Wanger had misinterpreted the consultation mandate.
"The federal Bureau of Reclamation was required to engage in ... consultation because, in renewing the challenged contracts, it retained 'some discretion' to act in a manner that would benefit the delta smelt," Judge Milan Smith wrote for the panel.
Because the agency was not required to renew the contracts at all, it had a minimum of discretion that action, Smith wrote, adding that "it is at least plausible that a decision not to renew the settlement contracts could benefit the delta smelt and their critical habitat."