Natural Resources Defense Coun v. Kenneth Salazar

I. BACKGROUND

A. FACTUAL BACKGROUND

The delta smelt is a small fish endemic to the San Joaquin and Sacramento Rivers Delta Estuary which was declared endangered by the United States Fish and Wildlife Service under the Endangered Species Act in 1993. Though previ- ously abundant, the population of the delta smelt has dimin- ished markedly in the last several decades. “The delta smelt presently has no commercial value, but it was commercially harvested as bait in the past.” San Luis & Delta-Mendota Water Auth. v. Salazar, 638 F.3d 1163, 1167 (9th Cir. 2011). NRDC v. SALAZAR 8173 Plaintiffs, several conservation groups, argue that in 2005 the United States Bureau of Reclamation (“Bureau”) renewed forty-one water service contracts with various water users without conducting an adequate consultation under § 7(a)(2) of the Endangered Species Act and that the contracts jeopar- dize the existence of the delta smelt. The contracts at issue fall into two groups: (1) users who obtain water from the Delta- Mendota Canal (“DMC Contractors”); and (2) parties who claim to hold water rights senior to those held by the Bureau with regard to the Central Valley…

Opinion by Judge HUG; Dissent by Judge PAEZ.

OPINION

In this appeal, we address whether the renewal of forty-one water supply contracts by the United States Bureau of Reclamation violates § 7(a)(2) of the Endangered Species Act, 16 U.S.C. § 1536 (a)(2) and illegally threatens the existence of the delta smelt. We conclude that it does not, and we affirm the judgment of the district court.

*1095 I. BACKGROUND

A. Factual Background

The delta smelt is a small fish endemic to the San Joaquin and Sacramento Rivers Delta Estuary which was declared endangered by the United States Fish and Wildlife Service under the Endangered Species Act in 1993. Though previously abundant, the population of the delta smelt has diminished markedly in the last several decades. “The delta smelt presently has no commercial value, but it was commercially harvested as bait in the past.” San Luis & Delta-Mendota Water Auth. v. Salazar, 638 F.3d 1163, 1167 (9th Cir.2011).

Plaintiffs, several conservation groups, argue that in 2005 the United States Bureau of Reclamation (“Bureau”) renewed forty-one water service contracts with various water users without conducting an adequate consultation under § 7(a)(2)…

dissenting:

I respectfully dissent. I agree with the majority that this case is not moot. I disagree with the majority’s holdings that the plaintiffs lack standing to challenge the Bureau’s renewal of the Delta-Mendota Canal (“DMC”) contracts and that § 7(a)(2) of the Endangered Species Act (“ESA”), 16 U.S.C. § 1536 (a)(2), does not apply to the United States Bureau of Reclamation’s (“Bureau”) renewals of the Sacramento River Settlement (“SRS”) contracts. Accordingly, I would reverse the district court’s grant of summary judgment to the defendants and remand for further proceedings.

I

I can not agree with the majority’s holding that the plaintiffs lack standing to challenge the Bureau’s renewals of the DMC contracts. Because the plaintiffs allege a straightforward procedural injury, they “must show only that they have a procedural right that, if exercised, could protect their concrete interests.” Defenders of Wildlife v. EPA, 420 F.3d 946 , 957 (9th Cir.2005) (emphasis in original), overruled on other grounds by Nat’l Assoc. of Home Builders v. Defenders of Wildlife, 551 U.S. 644 , 127 S.Ct. 2518 , 168 L.Ed.2d 467 (2007). In my view, the plaintiffs have easily made such a…