## Facts

- Commercial fishing and environmental plaintiffs challenged federal approvals governing operation of California’s Central Valley Project (CVP) and State Water Project (SWP).
- The CVP (federal) and SWP (state) are coordinated water-export and delivery systems whose operations affect the Sacramento–San Joaquin Delta and upstream river conditions.
- Reclamation and California’s water agency prepared the 2004 Operations Criteria and Plan describing long-term CVP/SWP operations.
- Because operations affect ESA-listed salmonids (winter-run Chinook, spring-run Chinook, and Central Valley steelhead) and their critical habitat, Reclamation and California consulted with NMFS under ESA § 7.
- NMFS issued a 2004 Biological Opinion concluding the proposed operations were not likely to jeopardize the listed species or adversely modify critical habitat.
- Plaintiffs sued under the ESA and APA, alleging NMFS failed to use the “best scientific and commercial data available,” including by relying on models based on historic hydrology and temperatures without accounting for climate change.
- During the case, NMFS acknowledged the analysis should have included climate-change information and agreed to reinitiate consultation and prepare a new Biological Opinion.
- The decision resolved cross-motions for summary judgment and addressed interim protections while a new Biological Opinion was prepared.

## Issues

1. Whether NMFS violated ESA § 7(a)(2) by failing to base the 2004 Biological Opinion on the best scientific and commercial data available, including available climate-change information relevant to temperatures and hydrology.
2. Whether the 2004 Biological Opinion was arbitrary and capricious under the APA because its jeopardy and critical-habitat analyses rested on unsupported modeling assumptions and analytical gaps.
3. What interim relief was required under the ESA while NMFS completed reconsultation and a new Biological Opinion, given drought conditions and existing risk to the species.

## Decision

- The court granted summary judgment for plaintiffs and held the 2004 Biological Opinion violated ESA § 7(a)(2) and was arbitrary and capricious under the APA.
- The court set aside the 2004 Biological Opinion and remanded to NMFS to produce a new, legally adequate Biological Opinion through reinitiated consultation.
- The court found that continued CVP/SWP operations under existing conditions, against a drought-stressed baseline, would appreciably increase jeopardy to the listed salmonids during reconsultation.
- The court ordered interim, ESA-focused operational constraints pending completion of the new Biological Opinion, rejecting purely economic harm as a basis to deny species-protective relief.

## Legal Principles

- ESA § 7(a)(2) requires federal action agencies and consulting agencies to base jeopardy and critical-habitat determinations on the “best scientific and commercial data available.”
- The “best available” requirement forbids ignoring superior, readily available scientific information that would materially affect the effects analysis.
- An APA challenge succeeds where the agency fails to show a rational connection between the record evidence and the conclusions reached, including where key modeling assumptions are inconsistent with available science.
- Jeopardy analysis must consider direct and indirect effects and the environmental baseline, including existing stressors and trends that affect the species’ status.
- In Ninth Circuit ESA cases, once an ESA violation and appreciable risk to listed species are shown, the balance of hardships strongly favors the species; economic harms generally do not defeat species-protective injunctive relief.
- Irreparable harm for ESA interim relief may be shown by “appreciable harm” to the species or critical habitat when considering the combined effects of the challenged operations and baseline conditions.

## Conclusion

The court invalidated NMFS’s 2004 Biological Opinion for failing to use best available science—particularly by omitting meaningful consideration of climate-change effects on hydrology and temperature—and required a new opinion while imposing interim operational limits to prevent project operations from appreciably increasing jeopardy to listed salmonids during reconsultation.


Pac. Coast Fed’n of Fishermen’s Ass’ns v. Gutierrez, 606 F. Supp. 2d 1122 (E.D. Cal. 2008)