San Carlos Apache Tribe v. United States
Opinion
Lead Opinion
MEMORANDUM *
The San Carlos Apache Tribe (“Tribe”) seeks to enjoin the United States from *636 releasing any additional water from the San Carlos Reservoir (“Lake”), except for 10 cubic feet per second, until there is a minimum pool of 75,000 acre-feet of water in the Lake. The district court granted summary judgment to the United States on some claims and dismissed the rest, prompting this appeal.
We review de novo a district court’s grant of summary judgment. Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir.2005). We affirm the district court’s grant of summary judgment on the Tribe’s claims under Section 9 of the Endangered Species Act, 16 U.S.C. § 1531 et seq.. Although the record is voluminous, the bulk of the evidence does not bear on the need to prevent the Lake from being drained below 75,000 acre-feet, but rather discusses the effect of draining the Lake to other levels or to some unknown level. We hold the Tribe has not established a genuine issue of material fact on the relevant question, whether a minimum pool at the specific level of 75,000 acre-feet is necessary to prevent a take of the bald eagle, willow flycatcher, and razorback sucker.