U.S. Fish & Wildlife Service

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On April 8, 2020, the U.S. Fish and Wildlife Service announced the finalization of a Candidate Conservation Agreement with Assurances for the monarch butterfly. Authorized by the Endangered Species Act, a CCAA is a voluntary conservation agreement that addresses the conservation needs of at-risk species before they are listed as endangered or threatened. Under the agreement, more than 45 transportation and energy companies and numerous private landowners will participate in monarch butterfly conservation by providing habitat along energy and transportation rights-of-way corridors on public and private lands across the country. This will provide potentially millions of acres of overwintering habitat for the monarch butterfly with the goal that listing under the ESA will become unnecessary. A Perkins Coie team including Don Baur, Bill Malley, Bob Maynard, Anne Beaumont, Cassie Roberts, Christina Bonanni and Sheri Pais represented the Monarch Butterfly CCAA Task Force, which prepared the CCAA.

As reflected in our earlier report (How Developers Can Help Save the Monarch Butterfly and Why They Should), long-term declines in the population of monarch butterflies have significantly increased the probability that they may become extinct in the near future. A U.S. Geological Survey and Scripps Institution of Oceanography study found that the Eastern migratory monarch population declined by 84 percent between 1997 and 2015, indicating a substantial probability of “quasi-extinction” over the next two decades. A quasi-extinct population is one with so few remaining individuals that recovery is effectively impossible — while the remaining numbers may survive for a brief time, the population as a whole will inevitably become extinct.

Research indicates that the most effective way to increase monarch butterfly numbers is to focus on restoration of their breeding habitat in the northern U.S. and southern Canada. Monarchs depend on several species of milkweed to provide food for developing larvae. Milkweed has declined precipitously as a result of a combination of herbicide use, climate change, insecticides (including neonicotinoids) and other factors.
Continue Reading U.S. Fish and Wildlife Service Approves Historic Agreement for Protection of Monarch Butterflies

On July 17, 2012, a three-judge panel of the Ninth Circuit ruled in Natural Resources Defense Council v. Salazar that the U.S. Bureau of Reclamation’s renewal of water delivery contracts with senior priority water rights holders was not “agency action” under section 7 of the Endangered Species Act. The panel held that because the Bureau lacked discretion over whether to approve the renewals, there was no duty to consult with the U.S. Fish & Wildlife Service regarding the potential impacts on the delta smelt, an threatened fish species. The panel’s decision is described below, although it may not be cited as precedent, because the Ninth Circuit decided on March 5, 2013, to rehear the case en banc.

If it stands on rehearing, the panel’s decision in NRDC v. Salazar would be a strong counterbalance to the Ninth Circuit’s June 1, 2012, opinion in Karuk Tribe of California v. U.S. Forest Service, 681 F.3d 1006 (9th Cir. 2012) (the subject of our June 12th posting), which adopted an expansive definition of “agency action” under the ESA.

In addition to addressing the “agency action’ issue, the panel decided that environmental plaintiffs groups lacked standing to challenge the Bureau’s decision to renew other water service contracts. The panel reasoned there was no “causal connection” between the renewal of these contracts and possible harm to the delta smelt, as the Bureau retained the authority to protect fish by reducing water deliveries during drought years.

The case is being watched closely for how the decision on rehearing will affect the continuing dispute over water deliveries and delta smelt protection in California’s Central Valley, which has lasted the better part of decade.

Background

The Bureau operates the Central Valley Project, one of the world’s largest water storage and transport systems, which consists of a network of dams, reservoirs, and pumping facilities that provides water for the irrigation of about one-third of California’s farmland. The CVP is managed in coordination with the State Water Project, a companion system operated by the California Department of Water Resources that provides drinking water for 25 million Californians. This federal-state cooperation began in the 1930s when, due to state budgetary constraints, the Bureau assumed control of the CVP. At that time, the Bureau had to obtain water rights under California law in order to operate the CVP. Preexisting water rights owners claimed priority rights to available water. As part of a settlement agreement, the Bureau and those senior water rights owners entered into a series of 40-year water delivery contracts, the “Settlement Contracts”. In addition, the Bureau entered into a series of long-term contracts to deliver water from the CVP to a coalition of non-priority users.

This dispute arose as a result of the Bureau’s renewal in 2004 to 2005 of both sets of contracts. Environmental groups challenged the renewals, alleging that the Bureau violated section 7 of the ESA by failing to consult with the U.S. Fish and Wildlife Service regarding the potential impacts to the delta smelt. In upholding the district court, a panel of three Ninth Circuit judges ruled against the plaintiffs and in favor of the Bureau and its contractors.

No “Agency Action”

With respect to the Settlement Contracts, the three-judge panel ruled there was no “agency action” triggering the duty to consult under section 7 of the ESA. The court first noted that section 7 applies only when “there is discretionary Federal involvement or control.” The court found there was no such federal discretion, since under section 8 of the Reclamation Act of 1902, the Bureau was obligated to operate the CVP in conformity with California water law regarding priority use and appropriation. Under California law, senior appropriators with water rights that pre-date the Bureau’s involvement in the CVP have priority claims to water over the Bureau. As a result, the Bureau lacked discretion and was required to renew the contracts. The court stated: “The Bureau’s hands are tied historically by those asserting senior water rights in the CVP. The Bureau was required to acknowledge such rights in order to operate the CVP, which it did by entering the Settlement Contracts.” The court concluded that this substantially constrained the Bureau’s discretion to reduce water diversions for the benefit of the delta smelt or for any other reason.
Continue Reading The Ninth Circuit Interprets “Agency Action” under the Endangered Species Act – Again