Smelt Protectors Nab Rehearing in the 9th

(CN) - Claims that renewing dozens of water-supply contracts in California's Central Valley will hurt the delta smelt will face an en banc rehearing, the 9th Circuit said Tuesday.

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Delta smel, a tiny fish native to the San Joaquin and Sacramento Rivers Delta Estuary, was declared endangered in 1993 and has been a source of much water-related controversy in the region for years.

In the present suit, the National Resources Defense Council, Friends of the River and other groups challenged the federal Bureau of Reclamation's 2005 renewal of 41 contracts - 28 of them for 40-year terms and 13 for 25-year terms. The groups claimed that the bureau had failed to consult with wildlife officials before renewing the contracts, and that the contracts jeopardize the very existence of the fish.

Senior U.S. District Judge dismissed the case in Fresno, finding that the environmental groups lacked standing to challenge an alleged procedural violation. The court also found that the Bureau of Reclamation was not required to consult with scientists under the Endangered Species Act (ESA) because prior settlements limited its discretion.

A divided three-judge panel in San Francisco affirmed in July 2012.

"Plaintiffs satisfy the injury-in-fact requirement by their assertion that they believe that the bureau has overcommitted water under the contracts which will harm the delta smelt," Judge Procter Hug wrote for the federal appeals panel. "However, plaintiffs fail to establish a causal connection between the threatened injury and the bureau's action because the DMC [Delta-Mendota Canal] contracts include a shortage provision. The shortage provision expressly allows the bureau to take any action to meet its legal obligations, which includes not delivering water to DMC contractors if it is necessary in order to comply with § 7(a)(2) of the ESA."

"The bureau's hands are tied historically by those asserting senior water rights in the CVP," he added, abbreviating the Central Valley Project. "The bureau was required to acknowledge such rights in order to operate the CVP, which it did by entering the settlement contracts."

Judge Richard Paez dissented from the majority on both points.

"I agree with the majority's conclusion that the plaintiffs alleged a procedural injury," Paez wrote. "Our precedent makes clear, then, that the plaintiffs have standing if they can demonstrate that ESA compliance by the Bureau could advance their concrete interest in protecting the delta smelt and its habitat." (Emphasis in original.)

"Plaintiffs have easily made such a showing" by presenting "extensive evidence from which a reasonable factfinder could conclude that the bureau's ESA compliance would likely improve the conditions of the delta smelt and its habitat," he added.

The court noted Tuesday that a majority of nonrecused active judges voted for a rehearing, meaning that the original opinion cannot be cited as precedent.

Judges Marsha Berzon and Sandra Ikuta did not participate in deliberations or vote on the case.

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