San Luis v. Jewell

A biological opinion is not arbitrary and capricious when it relies on raw numbers and includes adequate support and explanations for its determination that a threatened species’ habitat is in danger; a district court oversteps its bounds when it admits additional expert testimony that the parties have selected, but have not agreed to.

The Central Valley Project and the State Water Project (“the Projects”) supply water to “agricultural and domestic consumers in central and southern California.” The water’s source is the sole habitat for the delta smelt, a threatened species. The U.S. Fish and Wildlife Service’s (“FWS”) 2008 biological opinion (“BiOp”) found that the Projects would threaten the delta smelt, and it proposed reasonable alternatives. Agricultural consumers, water districts, and water consumers (collectively, “Plaintiffs”), sued various federal defendants under the Administrative Procedure Act to prevent them from implementing the BiOp. The district court found that the BiOp was arbitrary and capricious; Plaintiffs appealed. The Ninth Circuit first held that the district court overstepped its bounds in admitting certain expert testimony. Next, the panel held that the BiOp was not arbitrary and capricious because: 1) using raw numbers to set river flow limits was supported by substantial evidence; 2) the BiOp reasonably relied on certain models when evaluating the impact on X2, the location in the estuary considered the smelt’s spawning habitat; 3) the incidental take statement included adequate support; and 4) the record supported the BiOp’s conclusions about the Projects’ indirect effects. The panel disagreed with the district court and held that FWS was not required to explain how its reasonable alternatives satisfied the non-jeopardy factors in 50 C.F.R. § 402.02. The panel also affirmed all National Environmental Policy Act claims, as well as the district court’s remand for the Bureau of Reclamation to “complete an Environmental Impact Statement evaluating the effects of its adoption and implementation of the BiOp.” REVERSED IN PART AND AFFIRMED IN PART.