Friends of the River Lawsuit
Yuba Water Agency – Friends of the River v. NMFS Appeal
On October 3, 2019, the Ninth Circuit Court of Appeals issued an unpublished decision in Friends of the River v. National Marine Fisheries Service, et al. (Case No. 18-15623). The case involves an environmental group’s challenge to the federal government’s activities concerning two dams on the Yuba River. Friends of the River (FOR) principal argument on appeal was that the Endangered Species Act (ESA) required the U.S. Army Corps of Engineers (Corps) and National Marine Fisheries Service (NMFS) to analyze and mitigate impacts on protected fish species resulting from the mere existence of two federally-owned debris dams on the Yuba River – Englebright Dam and Daguerre Point Dam. Federal activities at the two dams have been subject to the ESA since 1990, when spring-run Chinook salmon and steelhead became eligible for protection under the act.
The Ninth Circuit did not address the primary issue of whether the ESA’s consultation procedures apply to the mere existence of the two dams. Instead, the Ninth Circuit held NMFS had not adequately explained why it changed its position as to this issue. A 2012 Biological Opinion issued by NMFS treated the dams’ existence as a proper subject of ESA consultation whereas the 2014 BiOp and Letter of Concurrence at issue in the case did not. The Ninth Circuit held that without a formal explanation from NMFS, it could not address the issue of whether the ESA’s consultation requirements apply to the dams’ existence. The Ninth Circuit, therefore, ordered NMFS to reassess this issue and provide an adequate explanation for its position.
In addition to challenging NMFS’ ESA consultation regarding the dams, plaintiff and appellant FOR argued that the Corps violated the ESA’s prohibition on “take” of threatened fish species. The Ninth Circuit refused to address the merits of this issue, however, because the district court had not addressed it. The appellate court therefore remanded this issue back to the district court to decide.
Finally, the Ninth Circuit rejected FOR’s arguments that a new ESA consultation is required. It also denied FOR’s request that the court order the Corps to implement interim species-protective measures while the matter is on remand.
The federal ESA is designed to protect endangered or threatened species and their critical habitat. The law requires federal agencies to ensure their actions do not jeopardize the continued existence of protected species by requiring “consultation” between a federal agency considering an action (“action agency”) and a consulting agency (in this instance, NMFS). If NMFS determines the activities are likely to jeopardize the protected species or adversely modify their critical habitat, NMFS will recommend alternative actions that the action agency must implement. The law also prohibits “take,” which can include harming or harassing a protected species.
Daguerre and Englebright were built by federal agencies in 1906 and 1941, respectively, to contain debris left in the Yuba River from 19th century gold mining operations. At 24 feet in height, Daguerre has two fish ladders for salmon and steelhead. Nearly 13 miles upstream of Daguerre, Englebright stands 260 feet high and does not have fish ladders.
In 2013 and 2014, the Corps and NMFS engaged in consultation under the ESA concerning the Corps’ activities at the dams. NMFS prepared a Biological Opinion (BO) that analyzed impacts on protected species resulting from the Corps’ activities at Daguerre and a Letter of Concurrence that analyzed impacts from the Corps’ activities at Englebright. The consultation considered activities over which the Corps exercises discretion, including operations and maintenance of fish ladders, issuance of certain authorizations for private activities at Daguerre, and the administration of recreational and maintenance activities and related contracts at Englebright. The consultation did not analyze activities over which the Corps does not exercise discretion, nor did it analyze completed past actions or merely potential future actions by the Corps. The BO concluded that the Corps’ actions at Daguerre were not likely to jeopardize protected species or adversely modify their habitat, and the Letter of Concurrence concurred with the Corps’ conclusion that its actions at Englebright may affect, but were unlikely to adversely effect, protected species or their habitats.
In 2016, FOR filed its current lawsuit in the U.S. District Court for the Eastern District of California. FOR’s lawsuit raised two primary arguments: (1) the mere existence of the dams was part of the Corps “agency action” that should be analyzed in the consultation required by the ESA, and (2) the Corps was liable under the ESA for “take” caused to the protected species by the mere existences of the dams, as well as “take” caused by the Corps’ actions at water diversions and hydroelectric facilities related to the dams. FOR also argued the federal agencies should have analyzed future Corps actions relating to licenses and easements for the operation of diversions near Daguerre and power facilities near Englebright, and claimed new information required the Corps and NMFS to reinitiate consultation under the ESA.
Yuba Water Agency intervened in the lawsuit to protect its ability to deliver water in the community to generate hydroelectric power, as well as its significant financial investments in flood control, fisheries protection and enhancement, and recreation. After the parties submitted briefs and the federal district court held a hearing, the court ruled against FOR.
The Appeal to the Ninth Circuit
FOR appealed the trial court’s decision to the Ninth Circuit. The Wishtoyo Foundation and Patagonia Works filed “friends of the court” briefs in support of the appeal. Yuba Water Agency, the Corps and NMFS filed briefs arguing the court of appeal should affirm the trial court’s decision. Various entities, including local water districts, Yuba County, a coalition of California dam operators and water users, a nationwide group of electric utilities and hydroelectric project operators, and organizations representing California water agencies and irrigators throughout the western U.S., filed friends of the court briefs arguing the court of appeal should affirm the trial court’s decision.
The Ninth Circuit did not address the merits of many of the issues raised by FOR’s appeal. Rather, the Ninth Circuit remanded the matter with direction to NMFS to articulate reasons in writing why it no longer treats the existence of the dams as part of the “agency action” under the ESA. The appellate court also remanded the case to the district court to decide whether the Corps is liable for “take” caused by the Corps’ activities at the water diversion and hydropower facilities. The court did not overturn NMFS’s “no jeopardy” conclusion. Nor did the court order the agencies to implement species-protective measures while the case is on remand. Finally, the Ninth Circuit rejected FOR’s claim that new consultation is required.
Yuba Water Agency is committed to environmental stewardship and has made significant commitments toward the conservation of protected species on the Yuba River. As shown by the successful Yuba Accord—a comprehensive program to protect and enhance 24 miles of habitat in the river downstream of Englebright that was developed by the Agency with federal, state, and local agencies and environmental groups, including FOR—negotiated agreements among stakeholder groups are more likely to achieve durable environmental success than litigation. YWA will continue to work with stakeholders to enhance fish and wildlife conditions in the Yuba River.
Consistent with the Ninth Circuit’s direction, on remand, the district will likely establish a process for the court and the parties to follow so that the district court may decide the merits of FOR’s claim that the Corps violated the ESA’s “take” prohibition. The district court will also likely issue directions to NMFS regarding the need to formally explain why NMFS changed its position concerning the existence of the dams.