ELR Citation: 49 ELR 20166
No(s). 18-15623 (9th Cir. Oct 3, 2019)

In an unpublished opinion, the Ninth Circuit reversed in part and affirmed in part a summary judgment in favor of NMFS and the U.S. Army Corps of Engineers in a challenge against NMFS' 2014 opinions that reversed its decades-long approach to classifying water diversions and hydroelectric dams on the Yuba River from prior ESA consultations with the Corps. An environmental group argued that NMFS acted arbitrarily and capriciously in changing its approach to analyzing the dams' impact on threatened fish because it failed to provide a reasoned explanation. The court agreed, finding that the agency explained why it no longer considered the operation of water diversions near the Daguerre Point dam to be an agency action, but failed to explain why it changed positions on whether the continued existence of the dams and hydroelectric facilities abutting the Englebright dam constituted agency action. The group also argued that changes in circumstances after the issuance of the opinions required the agencies to reinitiate ESA consultation. But the court found that the group did not raise triable issues of material fact as to how the purportedly new information it submitted about the Corps' dam operations revealed effects not already considered in the 2014 opinions, and concluded that the agencies were not required to reinitiate consultation. It therefore affirmed summary judgment in favor of the agencies with respect to ESA consultation requirements and reversed and remanded the judgment with respect to NMFS' policy change.