Fish Two, Water Withdrawals Zero: The 9th Circuit Affirms Another Biological Opinion

On Monday, the 9th Circuit Court of Appeals dealt another blow to traditional operation of the massive water projects that supply California’s Central Valley. The Court reversed those parts of a District Court opinion that had rejected parts of the biological opinion issued by the National Marine Fisheries Service intended to protect various salmonid species in the Central Valley.  Oncorhynchus_tshawytscha

As we noted, a different panel of the 9th Circuit had previously affirmed the BiOp issued by the Fish and Wildlife Service with respect to the Delta Smelt, for largely similar reasons.

What are the big takeaways?

• The 9th Circuit really means it when it says that the circumstances in which a District Court can review material outside the administrative record are few and far between.

• Judicial deference to agency action really is at its height where the agency decisions are at the core of its technical expertise.

• Deference really means affirming decisions with which courts might disagree, as long as they are reasoned decisions based on the record.

The core of these cases may seem simplistic, but given the scope of the Endangered Species Act, one short quote from the opinion pretty much explains the result:

People need water, but so do fish.

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