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October 15, 2019  |  Written by Michelle E. Chester

Ninth Circuit Finds Agency’s Change in Approach to Analyzing Instream Dams’ Impacts on Threatened Species to Be Arbitrary and Capricious

On October 3, 2019, the Ninth Circuit ruled on an appeal brought by Friends of the River (FOR), who sought review of the U.S. District Court for the Eastern District of California’s decision on FOR’s challenge to the U.S. Army Corps of Engineers (Corps) and National Marine Fisheries Service’s (NMFS) management of two dams in the Yuba River—the Daguerre Point Dam and the Englebright Dam.  FOR alleged violations of the federal Endangered Species Act (ESA) and Administrative Procedures Act regarding two opinions issued by NMFS in 2014—a biological opinion related to Daguerre Point and a letter of concurrence related to Englebright.  In these opinions, NMFS reversed its long-standing approach to analyzing dams’ impacts on three threatened fish species and, contrary to its prior opinions, concluded that proposed operation and maintenance actions by the Corps at the two dams were not likely to adversely affect the listed species.  The district court determined that NMFS did not act arbitrarily and capriciously when it changed its approach as reflected in the opinions, and granted summary judgment in favor of NMFS and the Corps.

The Ninth Circuit’s recent decision (which was unpublished) reverses, in part, the district court’s order granting summary judgment.  The Ninth Circuit concludes that an agency’s failure to provide a reasoned explanation for a change in its policy or practices is, itself, arbitrary and capricious.  Finding that NMFS did not provide the requisite reasoned explanation for its change, the Ninth Circuit instructed the district court to remand the 2014 opinions to NMFS for further explanation.  Furthermore, the Ninth Circuit instructed the district court to consider whether the continued operation of the dams would result in an unauthorized take of the listed species at issue, because the district court failed to address those issues in its decision.  However, the Ninth Circuit affirmed the district court’s determination that NMFS and the Corps were not required to reinitiate consultation under the ESA due to the alleged changes in circumstances after the issuance of the 2014 opinions.  In this regard, the Ninth Circuit held that FOR did not raise triable issues of material fact on this claim, and that FOR also failed to provide the statutorily required 60-day notice to the Corps as to the specific ways in which the Corps had allegedly modified its action, thereby requiring a reinitiated consultation.

A copy of the Ninth Circuit’s opinion is available here.

For further information on this topic, please contact Michelle Chester at mchester@somachlaw.com.

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