In re Consolidated Salmonid Cases

Tori Sundheim¹
LL.M., J.D., McGeorge School of Law
Feb. 4, 2015

Nearly two-thirds of the California population and seven million acres of agricultural land receive water from the State Water Project (“SWP”) operated by the California Department of Water Resources (“DWR”) or the Central Valley Project (“CVP”) operated by the United States Bureau of Reclamation (“Bureau”) (SWP and CVP, collectively referred to as “Projects”). In the Consolidated Salmonid Cases, the Eastern District Court of California reviewed a Biological Opinion (“BiOp”) issued in 2009 by the National Marine Fisheries Service (“NMFS”) that placed restrictions on the Projects’ operations to protect endangered species.² These BiOp-imposed restrictions greatly impacted the water supply that would otherwise reach millions of Californians.

In San Luis & Delta-Mendota Water Authority v. Locke, an opinion issued on December 22, 2014, the Ninth Circuit Court of Appeals reversed the decision issued by the federal district court for the Eastern District of California. Mirroring its opinion in The Consolidated Delta Smelt Cases,³ issued March 13, 2014, the Ninth Circuit found that the lower court created a “battle of the experts” in violation of the Administrative Procedure Act’s (“APAs”) “arbitrary and capricious” standard of review. The “arbitrary and capricious” standard of review is in part designed to prevent a court from substituting its judgment for that of the expert agency. The standard limits the court to review of the administrative record before the agency at the time the agency made its decision. The agency’s decisions are “arbitrary and capricious” if it: (1) relies on factors outside of its authority; (2) fails to consider “an important aspect of the problem”; (3) offers an explanation that counters the evidence provided in the record; or (4) is so implausible that the decision could not arise from expertise.⁴

The Endangered Species Act (“ESA”) directs its implementing agencies to use the “best scientific and commercial data available” when developing a BiOp and, by extension, granting authority to incidentally take (e.g., injure or kill) a listed species. According to the Ninth Circuit, the exercise of “best scientific and commercial data available” is a restrictive mandate that “merely prohibits [an agency] from disregarding available scientific evidence that is in some way better than the evidence it relies on.”⁵ An agency has met this standard so long as it used information readily available at the time it made its decision and explains its use of that information.⁶

To review whether the agency gathered evidence using the “best scientific commercial data available,” the court is limited to the administrative record prepared by the agency.⁷ It may admit expert witnesses, or extra-record evidence, under limited circumstances. The extra-evidence rule may be used only to judge whether the agency collected substantial evidence and made a reasoned decision as required by the APA; a court may not determine whether the agency applied the best analysis or if the decision could have been better or worse.⁸ The courts warn that these exceptions should be approached with caution lest the court substitute the judgment of parties’ post-hoc expert-witnesses for that of the agency.⁹

Because the APA limits the court to record review, there is a tension between record review and the ESA as to whether “best scientific and commercial data available” is the same as merely collecting evidence to support a finding, or requires a more intensive level of engagement. The interplay between the Ninth Circuit court and the lower Eastern District court in the In re Consolidated Salmonid Cases, and Consolidated Delta Smelt Cases highlights this tension, as the Ninth Circuit finds the standard requires more deference to the agency than that given by the lower district court.

The Consultation Process for the Projects

Section 7(a)(2) of the ESA prohibits agency action that is “likely to jeopardize the continued existence” of any endangered or threatened species or “result in the destruction or adverse modification of its critical habitat.”¹⁰ When a federal action or project might cause either kind of jeopardy to the persistence of an endangered species, section 7 of the ESA requires the acting agency to consult with the Fish and Wildlife Services (“FWS”) or National Marine Fisheries Service (“NMFS”), depending on the species.

In the In re Consolidated Salmonid Cases, the acting federal agency is the Bureau, in coordination with DWR, and the agency action is the operations of the Projects diverting water from the Delta to southern California, or “south of the Delta exports.” The Bureau describes Project operations via a set of standards known collectively as the Operational Criteria and Plan (“OCAP”). Implementation of OCAP is considered a federal action that requires the Bureau to consult with NMFS, i.e., the federal resource agency charged with protection of anadromous or marine species under the federal ESA.

If, after consultation and review of OCAP, NMFS issues an opinion concluding that the agency action will result in “take,” NMFS will then issue an Incidental Take Statement (“ITS”). If the opinion concludes that the “take” will jeopardize the continued existence of the species, NMFS will identify Reasonable and Prudent Alternatives (“RPAs”) in the BiOp. An RPA resulting from a “jeopardy” opinion alters operations to reduce take, avoid jeopardy, and prevent adverse modification of critical habitat.

In 2009, NMFS issued a jeopardy opinion for the impacts of the Projects’ operations on the endangered Sacramento River winter-run Chinook Salmon, threatened Central Valley spring-run Chinook salmon, threatened Central Valley steelhead, threatened Southern Distinct Population Segment of North American green sturgeon, and endangered Southern Resident killer whales. The opinion concluded that the long-term operations of the projects are likely to jeopardize the species and destroy or adversely modify their critical habitats.

NMFS issued over seventy RPAs restricting Project operations to alleviate stressors like elevated water temperature, blocked fish passage, degraded habitat, loss of genetic diversity due to impacts from fish hatcheries, reversed flows, and entrainment in project pumps. The water users, DWR and the Bureau, argued that NMFS failed to use the “best scientific and commercial data available” to reach its conclusions. This failure to use the best available science resulted in an overly restrictive RPA that halted project operations without providing adequate scientific evidence that these restrictions met the particular needs of the listed species.

Ninth Circuit Standard of Review

The Ninth Circuit follows the APA standards of review for agencies acting pursuant to the ESA because the ESA does not provide an alternative judicial standard. Under the APA’s “arbitrary and capricious” standard of review, a court must defer to federal agency action, like the issuance of a BiOp by NMFS. Under the APA, an agency is given discretion “to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.”¹¹ Because an agency’s final decision is quasi-judicial with regulatory effect, the purpose of this level of review is to grant deference to the agency while maintaining accountability for agency abuse of discretion.

The traditional standard of review requires the court to inquire only as to whether the agency collected evidence and considered factors to come to conclusions rationally related to those factors. According to the Ninth Circuit, “an agency’s decision is arbitrary and capricious if it has relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”¹²

The ESA, in turn, requires agencies to base their decisions on the “best scientific and commercial data available.” This mandate is highly technical by definition. According to Ninth Circuit, “what constitutes the best scientific and commercial data available is itself a scientific determination deserving of deference.”¹³ The type of information that constitutes the “best scientific and commercial data available” requires the highest level of deference because the agency action requires a high level of expertise.

A court abuses its discretion when it fails to give deference to an agency’s highly technical analysis. The purpose of the best available science standard is simply to prevent an agency from basing its action on speculation and surmise. The ESA’s best available science standard merely prohibits an agency from “disregarding available scientific evidence that is in some way better than the evidence it relies on.”¹⁴ Thus, an agency complies with the best available science standard, so long as it acknowledges available studies, even if it disagrees with or discredits them. Further, the standard does not require an agency to conduct new tests or make decisions on data that does not yet exist and permits the agency to rely on weak data if that is all that is available.

A reviewing court’s scope of review for a BiOp is limited to the administrative record prepared by the agency—and not by evidence available after the fact by a reviewing court. The Ninth Circuit reviewed the exceptions to this rule in Lands Council v. Powell, 395 F.3d 1019 (9th Cir. 2004). In Lands Council, a reviewing court may only consider extra-record evidence when “(1) necessary to determine whether the agency has considered all relevant factors and has explained its decision; (2) necessary to determine whether ‘the agency has relied on documents not in the record; (3) supplementing the record is necessary to explain technical terms of complex subject matter; or (4) plaintiffs make a showing of agency bad faith.”¹⁵ The party seeking admittance of extra-record evidence must demonstrate the applicability of the relevant exception.

The extra-evidence rule may be used only to judge whether the agency collected substantial evidence and made a reasoned decision as required by the APA; a court may not determine whether the agency applied the best analysis or if the decision could have been better or worse.
The district court admitted multiple declarations from multiple experts under two of the four exceptions: “whether the agency had considered all relevant factors and had explained its decision,” and to “explain technical terms of complex subject matter.”¹⁶

According to the Ninth Circuit, the application of the “considered relevant factors” exception requires a subtle but important distinction. Evidence admitted under this exception may only be used to inform the court’s understanding as to the integrity of the agency’s scientific analysis; the court may not use the information to substitute the wisdom of the agency’s action.¹⁷

The Ninth Circuit panel reversed the district court opinion, finding it “went beyond the exceptions” set forth in Lands Council when it admitted the testimony of several extra-record declarations submitted by parties’ experts and adopted the analysis provided by these declarations as the basis for rejecting NMFS BiOp.¹⁸ The district court made dozens of conclusions relating to almost every component of the BiOp when rendering its “complex and lengthy opinion.”¹⁹ The panel upheld the entirety of the BiOp, even those components overturned by the district court, were reasonable and supported by the record.

An agency has flexibility to choose among several appropriate alternatives and the choice will be upheld so long as it is reasonably supported based on a review of the record as a whole. Section 402.2 of the ESA identifies RPAs as alternatives that: “(1) can be implemented in a manner consistent with the intended purpose of the action; (2) can be implemented consistent with the scope of the Federal agency’s legal authority and jurisdiction; (3) are economically and technologically feasible; and (4) the Director believes would avoid the likelihood of jeopardizing the continued existence of listed species or resulting in the destruction or adverse modification of critical habitat.”²⁰ Of these four factors, the first three are “non-jeopardy” factors, and the fourth is a “jeopardy” factor. Jeopardy factors are the most restrictive and, therefore, most important for consideration.

Application of “Best Scientific and Commercial Data Available” to the Reasonable and Prudent Alternative (RPA) Actions

The district court reviewed over seventy RPAs restricting project operations within the BiOp. Because the Projects control diversions throughout the state of California, these restrictions were grouped into five categories according to operational regions. On appeal, plaintiffs challenged the RPAs for the East Side Division and Delta Division categories. This section only addresses challenges to Delta Division RPA Action Category IV.2.1. to illustrate the appropriate analysis as applied to a highly technical RPA.

Category IV actions control operations in the Delta, where the projects export water from the Old and Middle Rivers through massive pumps to southern California. When the pumps are in operation, flows are reversed and reduced in the Old and Middle Rivers. This reversion and reduction of flows directly impacts habitat for endangered and threatened species. The impacts of exports on the environment are wide-ranging, but the associated RPAs imposes operational changes to protect the fish against poor habitat quality and entrainment, a scientific term used to describe fish killed by water pumps. The associated RPAs impose flow-to-export ratios, or maximum negative flow rates for the rivers, and impose salvage success rates at stations designed to capture fish before they are killed in the pumps.

Category Action IV.2.1 addresses maximum negative flow rates for the rivers and imposes minimum inflow to export ratios between April 1 and May 31. This action requires the Bureau and DWR to implement specific flow ratios so that pumps may not export water to a level that would result in a decrease of the ratio. The ratios set by NMFS change based on the weather to account for droughts and floods. These ratios increase as more water becomes naturally available in the environment: Critically dry (1:1), dry (2:1), below normal (3:1), above normal (4:1), and wet (4:1).

The district court’s approach favored reducing economic impacts. This approach reads the best available science mandate to mean the ESA only permits the restriction of operations when absolutely necessary to protect the species. The court reasoned the agency must explain “how each RPA Action is ‘essential to avoid jeopardy’ or … how each RPA Action complies with section 402.02’s three non-jeopardy factors.”²¹ Presumably under this standard, NMFS may only impose an RPA if it provides an explanation for why each RPA is “necessary, over all others, to preserve the species.”²² The alternative approach employs the precautionary principle; a policy decision in the absence of data to choose the least harmful action, or to seek additional flows and ensure the agency safely preserves the species despite foreseeable economic impacts.

The Ninth Circuit distinguished between a non-jeopardy and jeopardy opinion, reasoning that thorough documentation is required for a jeopardy factor, but documentation of non-jeopardy factors is only required when an RPA fails to meet a non-jeopardy factor. The court stated “neither section 404.02 or section 7 require NMFS to explain why each Action is ‘essential’ or to fully elucidate the non-jeopardy factors.”²³ Therefore, NMFS is not required to document compliance with non-jeopardy factors and is only required to fairly conclude — based on the record — that the proposed RPA Actions do not further jeopardize the listed species or adversely affect critical habitats. This is very different than the standard adopted by the district court, which focuses instead on the specific economic impacts, and would require an explanation for why each proposed RPA is necessary, above all others, to preserve the species. This shows that the best available science standard only applies a jeopardy RPA, where a non-jeopardy RPA must only meet the minimum standards set forth by the ESA non-jeopardy factors. Thus, only the jeopardy elements of a BiOp may be challenged for lack of best available science, where non-jeopardy elements may only be challenged for lack of statutory compliance.

According to the Ninth Circuit, neither the ESA nor its implementing regulations require the district court’s level of precision from the agency for jeopardy factors. The jeopardy factor includes actions “the Director believes would avoid the likelihood of jeopardizing the continued existence of listed species or resulting in the destruction or adverse modification of critical habitat.”²⁴ The Ninth Circuit interprets the words “the Director believes” as moderate and deferential language which imposes a “flexible standard for the consulting agency” that does not require the agency “to explain why [it] chose one RPA over another.”²⁵ This standard provides deference because the agency must have the flexibility to choose among several appropriate alternatives. Its choices must only be supported by the record as a whole.

In alignment with its reasoning for RPA review, the district court found the NMFS Category Action IV.2.1 ratio for wet years did not explain why that ratio would be necessary to preserve the species. According to the district court, the science must be exacting to halt operations only to the extent necessary to provide minimal protection to the species. If the NMFS were held to this reasoning, then it may only impose a 4:1 ratio if it is absolutely necessary to protect the species during above normal and wet seasons. From an environmental perspective, the 4:1 flow ratio is protective of the species, but from an economic perspective, it is restrictive as it does not allow additional exports for storage during wet years.

The Ninth Circuit Court of Appeals reversed the district court’s finding and held the record did support the decision to impose the 4:1 export ratio. The NMFS decision was based on the Vernalis Adaptive Management Plan (“VAMP”), and the VAMP studies showed that smolt levels and survival rates for the Chinook salmon were adequate at a 2:1 flow to export ratio but not a 4:1 flow to export ratio. VAMP and other data reflected a positive correlation between a high-flow-to-low export ratio and successful salmonid outmigration. This positive correlation provided enough evidence in the record to support a finding that the flow ratio should be higher to protect species.

Therefore, it was a proper exercise of agency discretion when the NMFS chose to treat the 2:1 ratio in the RPA as a floor, as anything higher is protective of the species and preferable to increase survival and abundance. Though the ratio was maximally protective of fish, it was traceable to the record. It was within NMFS’ discretion to apply a conservative threshold to afford maximum protection to the species, so long as it was fairly supported by the record, which according to the court it was.

Conclusion

The district court’s decision and the Ninth Circuit opinion, as well as those opinions in The Consolidated Delta Smelt Cases, together highlight the tension between the ESA’s “best scientific and commercial data available” and the highly deferential “arbitrary and capricious” standard, especially with respect to the highly technical issues that often arise in the context of natural resource issues. The Ninth Circuit applies a less demanding standard of review than the district court.

The goal of the ESA is to ensure against ill-informed federal actions, and to prevent extinction of species despite potentially enormous practical consequences. The courts have held that the ESA explicitly affords species the “highest of priorities,” even if such protection sacrifices the “anticipated benefits of the project and of many millions of dollars in public funds.”²⁶ Moreover, a court may not substitute its judgment for that of the agency, and the extensive cadres of new expert opinions admitted in the lower court arguably does just that. To allow expert opinions and impose exact scientific requirements for agency findings violates the fundamental rule under the “arbitrary and capricious” standard that courts should only review the science that was available at the time the agency’s decision is made. If a court may develop its own evidence, the court becomes the fact-finder rather than the agency, violating the separation of power between the judicial and executive branches.

Glossary of Abbreviations

¹ California State Bar Licensed; LL.M. Water Resources Candidate 2014, McGeorge School of Law; J.D. 2013, McGeorge School of Law; B.B.A. 2009, Goizueta Business School, Emory University; Founder and Managing Advisor, California Water Law Journal. I would like to thank the California Water Law Journal for allowing me to utilize the journal as part of a directed study for the Water Resources LL.M. and for Jennifer Harder’s valuable suggestions and edits. This article does not represent the views of the California Water Law Journal, McGeorge School of Law, UC Davis King Hall School of Law, or any of the clients or firms with which I work.

² San Luis & Delta-Mendota Water Authority v. Locke, D.C. No. 1:09-cv-01053-LJO-DLB, slip op. (9th Cir. Cal. Dec. 22, 2014) (Judge Tallman overturned Judge Wanger’s decisions and clarified the appropriate standard of review and use of expert witnesses for Biological Opinions under section 7 of the Endangered Species Act); In re Consolidated Salmonid Cases, 791 F. Supp. 2d at 813 (E.D. Cal. 2011) (Judge Wanger undertook a summary judgment review finding the NMFS violated the ESA and APA in its 2009 BiOp when it restricted project operations to protect the endangered Sacramento River winter-run Chinook Salmon, threatened Central Valley spring-run Chinook salmon, threatened Central Valley steelhead, threatened Southern Distinct Population Segment of North American green sturgeon, and endangered Southern Resident killer whales.)

³ San Luis & Delta-Mendota Water Authority v. Jewell 747 F.3d 581 (9th Cir. 2014) (Judge Bybee overturned both of Judge Wanger’s decisions and clarified the appropriate standard of review and use of expert witnesses for Biological Opinions under section 7 of the Endangered Species Act); The Consolidated Delta Smelt Cases, 717 F.Supp.2d 1021 (E.D. Cal. 2010) (Judge Wanger undertook an injunction review for Reasonable and Prudent Alternative Component 2, Action 3 in the FWS 2008 Biological Opinion for the Delta Smelt regarding changes in flows triggered by certain events or impacts to Delta Smelt); In re Consolidated Delta Smelt Cases, 812 F.Supp.2d 1133, (E.D. Cal. 2011) judgment vacated, appeal dismissed (Aug. 23, 2012) (Judge Wanger undertakes an injunction review for Reasonable and Prudent Alternative Component 3 in the FWS 2008 Biological Opinion for the Delta Smelt regarding salinity levels that jeopardize habitat for Delta smelt, an issue which was not ripe for review at the time of the 2010 opinion.)

⁴ San Luis & Delta-Mendota Water Authority, D.C. No. 1:09-cv-01053-LJO-DLB, slip op. at 46.

⁵ Id.

⁶ San Luis & Delta-Mendota Water Authority, D.C. No. 1:09-cv-01053-LJO-DLB, slip op. at 47.

⁷ Id. at 40.

⁸ Id.

⁹ Id.

¹⁰ 16 U.S.C. 1536(a)(2).

¹¹ San Luis & Delta-Mendota Water Authority, D.C. No. 1:09-cv-01053-LJO-DLB, slip op. at 41.

¹² 5 U.S.C. § 701 et seq.

¹³ San Luis & Delta-Mendota Water Authority, D.C. No. 1:09-cv-01053-LJO-DLB, slip op. at 47.

¹⁴ Id. at 46.

¹⁵ Id. at 12.

¹⁶ Id. at 42.

¹⁷ Id.

¹⁸ San Luis & Delta-Mendota Water Authority, D.C. No. 1:09-cv-01053-LJO-DLB, slip op. at 12.

¹⁹ San Luis & Delta-Mendota Water Authority, D.C. No. 1:09-cv-01053-LJO-DLB, slip op. at 36.

²⁰ 50 C.F.R. § 402.02.

²¹ San Luis & Delta-Mendota Water Authority, D.C. No. 1:09-cv-01053-LJO-DLB, slip op. at 61.

²² Id. at 62.

²³ Id. at 61.

²⁴ Id.

²⁵ Id. at 62.

²⁶ San Luis & Delta-Mendota Water Authority, 747 F.3d at 591.