October 11, 2012

Ominous development for California water users

By Damien M. Schiff Senior Attorney

This July, the Ninth Circuit, in NRDC v. Salazar, upheld 2-1 Judge Oliver Wanger’s dismissal of an environmentalist challenge to the Bureau of Reclamation’s renewal of water contracts.  The environmentalists had argued that the Bureau violated the Endangered Species Act by failing to consult with the Fish and Wildlife Service on the effects that contract renewals (and more specifically the water deliveries that would happen pursuant to the renewed contracts) on ESA-protected species.  But the Ninth Circuit panel majority held that, for some of the contract renewals, the environmentalists did not have standing to challenge, and that for other renewals, the environmentalists had no claim because the Bureau had no discretion over the renewal.  Without such discretion, the consultation obligation of the Endangered Species Act did not attach.

Last week, however, the environmentalists moved for rehearing and rehearing en banc.  The petition argues that the panel decision goes against settled law on standing by requiring the environmentalists to make their substantive case as a condition to getting standing, instead of merely having to show that, if their claim is good, then the judicial redress may remedy their injury.  On the merits, the petition contends that the majority’s discretion analysis conflicts with the Ninth Circuit’s recent en banc decision in Karuk Tribe v. United States Forest Service, which held that the Forest Service had discretion to condition approval of notices of intent to mine on national forests in order to benefit listed species.

What I find ominous about the petition is that, one day after its filing, the panel ordered a response to it.  Under the Federal Rules of Appellate Procedure, a party may not respond to a rehearing petition unless the court so orders, and generally a court does not order a response unless it is seriously questioning its earlier decision.  So, the quick turnaround here gives me the impression that the water users’ victory in NRDC v. Salazar may be shortlived.

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