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Endangered Species Law and Policy

Federal Court Issues Decision Invalidating NMFS Biological Opinion for Central Valley Project and State Water Project

Posted in Court Decisions

The United States District Court for the Eastern District of California issued a 279-page memorandum decision (pdf) on cross-motions for summary judgment in consolidated cases involving challenges to the June 4, 2009 biological opinion issued by the National Marine Fisheries Service (NMFS) regarding the effects of continued operation of the Central Valley Project and State Water Project in California on five listed fish species. The court considered dozens of claims advanced by plaintiffs and held for plaintiffs in whole or in part with respect to about half of the claims while holding for defendants with respect to the balance of the claims. In light of the deferential standard of review of final agency actions under the Administrative Procedure Act, the fact that plaintiffs succeeded on so many claims is extraordinary. Furthermore, even where the court held in favor of federal defendants, in some instances the court expressed skepticism about the basis for federal defendants’ position. For example, while the court agreed with federal defendants that in light of the standard of review NMFS did not act unlawfully by failing to apply available life-cycle models, the court nonetheless indicated failure to apply any life cycle model “approaches bad faith.”

We will post a more detailed description of the decision shortly.