ELR Citation: 52 ELR 20112
No(s). 21-55479 (9th Cir. Sep 23, 2022)

The Ninth Circuit, 2-1, reversed summary judgment for the Bureau of Reclamation and Santa Maria Water District in a lawsuit concerning the endangered Southern California steelhead. Environmental groups argued the agencies' operation of a dam in the Santa Maria River watershed interfered with the steelhead's reproductive migration, constituting an unlawful take in violation of the ESA, and sought an injunction requiring properly timed water releases of appropriate magnitude and duration to support the species' reproduction. The agencies moved for summary judgment, arguing they did not have discretion under the legislation authorizing the dam's construction to release any amount of water to avoid take of the steelhead. A district court agreed and granted summary judgment. The appellate court found that the legislation expressly authorized the dam to be operated "for other purposes" besides irrigation, conservation, and flood control, including potentially adjusting releases to support migration and reproduction of the steelhead, and thus that the agencies did have discretion to operate the dam to avoid take of the species. It reversed summary judgment and remanded for further proceedings.