United States Ninth Circuit

The district court's judgment invalidating a 2008 biological opinion by the U.S. Fish and Wildlife Service (FWS) that concluded that the Central Valley and State Water Projects jeopardized the continued existence of the delta smelt and its habitat is: 1) reversed in part, where the biological opinion's reliance on raw salvage figures to set the upper and lower Old and Middle Rivers flow limits, the determination of X2, and the incidental take statement all were not arbitrary and capricious, and the record supported the biological opinion's conclusions regarding the indirect effects of project operations; and 2) affirmed in part, where the National Environmental Policy Act (NEPA) does not require the FWS to prepare an Environmental Impact Statement in conjunction with the issuance of the biological opinion, and the Bureau of Reclamation's provisional adoption and implementation of the biological opinion triggered its obligation to comply with NEPA.

Appellate Information

• Decided 03/13/2014
• Published 03/13/2014

Judges

• BYBEE

Court

• United States Ninth Circuit

Counsel