Friends of the River Lawsuit
Yuba Water Agency Actions in Friends of the River v. NMFS
On June 17, 2020, Yuba Water Agency filed a motion with the Federal District Court in Friends of the River v. National Marine Fisheries Service, et al. (Case No. 2:16-cv-00818-JAM-EFB). 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’s (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 and Daguerre Point dams. Federal activities at the two dams have been subject to the Endangered Species Act since 1990, when spring-run Chinook salmon and steelhead became eligible for protection under the act.
The two dams safely contain millions of cubic yards of mining debris left over from the gold rush, preventing it from contaminating the Yuba, Feather and Sacramento rivers and increasing flood risk if released downstream. Today, the Corps has no legal discretion to remove or modify these two dams (only Congress has that authority), so their existence was properly considered part of the environmental baseline conditions, and, as such, the dams existence should not be considered among the actions for which the Corps was seeking to obtain Endangered Species Act approval. However, NMFS and the Corps had a consultation (called a Section 7 consultation) and NMFS issued a jeopardy opinion in 2012, claiming the dams were jeopardizing the existence of threatened species. At that time, Yuba Water Agency intervened, filing a lawsuit to challenge the basis of the NMFS decision, and the court agreed, directing the two federal agencies to complete a new consultation.
(Images: The Corps’ Daguerre Point and Englebright dams on the lower Yuba River)
In 2014, NMFS issued a new biological opinion and a letter of concurrence reflecting that the dams are part of the Corps’ environmental baseline conditions. About two years later, Friends of the River challenged those Endangered Species Act documents, alleging that the federal agencies improperly defined the scope of the Corps’ activities. On October 3, 2019, the court ordered NMFS to provide a reasonable explanation why it changed its opinion. That was more than eight months ago.
Yuba Water Agency’s motion asks the court to require NMFS to provide that explanation, as ordered by the Ninth Circuit’s decision. Yuba Water filed the motion to help ensure timely resolution of the case, asking that NMFS be required to provide the “reasoned explanation” required by the Ninth Circuit within 45 days. In addition, Yuba Water requested the district court place on hold – Friends of the River’s other Endangered Species Act claims until after NMFS has provided this explanation.
Yuba Water intervened in the lawsuit to protect its ability to deliver water in the community, to generate hydroelectric power, as well as to protect its significant financial investments in reducing flood risk and improving fish habitat.
The Ninth Circuit Court’s Order
The Ninth Circuit did not address the primary issue of whether the Endangered Species Act 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 on this issue. The Ninth Circuit held that without a formal explanation from NMFS, it could not address the issue of whether the 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’ consultation regarding the dams, Friends of the River argued that the Corps violated the Endangered Species Act’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 Friends of the River’s arguments that a new consultation is required. It also denied their request that the court order the Corps to implement interim species-protective measures while the matter is on remand.
Endangered Species Act Consultations
The federal Endangered Species Act 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.
(Image: Chinook salmon)
Improving Fish Habitat on the Lower Yuba River
Yuba Water Agency is committed to environmental stewardship and has made significant commitments toward the conservation of protected species on the Yuba River. We have been actively engaged in collaborating, funding, and implementing salmon and steelhead habitat improvement actions on the Lower Yuba River for more than two decades. Yuba Water is presently working with conservation groups and federal agencies in the Hallwood Side Channel and Floodplain Restoration Project. The resolution of this court challenge will enable these projects to advance, however, the uncertainty brought about by continued litigation could jeopardize these projects and many others.
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 Yuba Water in partnership with federal, state, and local agencies and environmental groups, including Friends of the River - negotiated agreements among stakeholder groups are more likely to achieve durable environmental success than litigation. Yuba Water will continue to work with stakeholders to enhance fish and wildlife conditions in the Yuba River.
In an effort to resolve this issue, Yuba Water filed a legal motion to request that the court direct NMFS to promptly provide the requested explanation and respond to the Ninth Circuit Court decision. There is a relatively simple answer, and we are asking the district court to direct NMFS to provide that answer as the Ninth Circuit ordered, and to do so in a timely and open manner.
- Yuba Water 17 June 2020 Notice, Motion and Memo
- NMFS 2014 Biological Opinion for Daguerre Point Dam
- NMFS 2014 Letter of Concurrence for Englebright Dam
- U.S. Army Corps of Engineers 2013 Biological Assessment for Daguerre Point Dam
- U.S. Army Corps of Engineers 2013 Biological Assessment for Englebright Dam
- San Luis and Delta-Mendota Water Authority brief
- Federal Appellees' answering brief