July 31, 2014

Delta smelt developments

By Damien M. Schiff Senior Attorney

As we reported last week, the Ninth Circuit Court of Appeals denied the petitions for rehearing en banc filed by several groups of water-user parties.  Some of those groups this week moved to stay the Ninth Circuit’s mandate, alerting the court to their intention to file a petition for certiorari with the United States Supreme Court.  The water users explain that they intend to seek review on the panel decision’s interpretation of the Endangered Species Act’s mandate that the Fish and Wildlife Service use only the best scientific data available.  Also, they want the Supreme Court to review the panel decision’s holding that a biological opinion’s “reasonable and prudent alternative” can ignore the economic or other impacts of the alternative’s implementation when determining whether the alternative is “feasible.”

Cert petitions are due in mid-October.

What to read next