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May 22, 2014  |  Written by Alexis K. Stevens

Petitions for Rehearing Filed in Delta Smelt Biological Opinion Litigation

Last week, several parties filed petitions for rehearing en banc before the Ninth Circuit in the Consolidated Delta Smelt Cases.  This follows the Ninth Circuit’s decision in March of this year, reversing the District Court’s invalidation of the U.S. Fish and Wildlife Service’s (USFWS) 2008 Smelt Biological Opinion (Smelt BiOp), which had concluded that the Central Valley Project and State Water Project jeopardized the continued existence of the Delta smelt and its habitat.

In its decision (San Luis & Delta Mendota Water Authority v. Jewell, 2014 U.S. App. LEXIS 4781 (9th Cir. March 13, 2014), the Ninth Circuit disagreed with the District Court’s conclusion that the Smelt BiOp was arbitrary and capricious because it was scientifically unsupported and violated the Federal Endangered Species Act (ESA).  While admitting that the Smelt BiOp was “a bit of a mess,” the Ninth Circuit deferred to the USFWS’ findings and analyses, concluding that they were supported by substantial evidence and were not arbitrary and capricious.

On May 12, 2014, the Department of Water Resources (DWR), along with State and Federal Water Contractors, filed petitions seeking rehearing before the full Ninth Circuit panel.  Each petition raises separate issues with respect to the panel decision’s conflict with Ninth Circuit and U.S. Supreme Court precedent regarding review of agency actions under the Administrative Procedure Act (APA) and compliance with the Federal ESA.  The Contractors’ petitions also point out the “societal costs” of the decision, noting its effect on the water supply of over 20 million Californians.

DWR’s petition focuses on the decision’s conflict with precedent regarding the standard of review under the APA.  DWR argues that the decision changes the standard “from a requirement that an agency articulate an explanation for its actions including a rational connection between the facts found and the choice made to a standard of granting conclusive effect to an agency’s finding of fact if the findings are supported by substantial evidence.”  The Federal Water Contractors’ petition argues that the decision is at odds with precedent regarding the identification of non-discretionary actions and how the effects of those actions are to be assigned to the environmental baseline during ESA Section 7 consultation.  Finally, the State Water Contractors’ petition argues that the Ninth Circuit’s decision excuses USFWS from the ESA’s requirement that “the best available scientific and commercial data available” be used in the development of the BiOp.  The State Water Contractors also seek review of the panel’s holding that a BiOp may specify alternatives to an agency action without regard to the economic and technological feasibility of those alternatives or their effect on third parties.

The Ninth Circuit has invited Federal Appellants and Intervenor-Appellants to file oppositions to the petitions.  Any opposition must be filed by June 16, 2014.

If you have any questions, please contact Alexis K. Stevens at

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