Ninth Circuit Finds Agency’s Change in Approach to Analyzing Instream Dams’ Impacts on Threatened Species to Be Arbitrary and Capricious

Somach Law –

On October 3, 2019, the Ninth Circuit ruled on an appeal brought by Friends of the River (FOR), who sought review of the U.S. District Court for the Eastern District of California’s decision on FOR’s challenge to the U.S. Army Corps of Engineers (Corps) and National Marine Fisheries Service’s (NMFS) management of two dams in the Yuba River—the Daguerre Point Dam and the Englebright Dam.  FOR alleged violations of the federal Endangered Species Act (ESA) and Administrative Procedures Act regarding two opinions issued by NMFS in 2014—a biological opinion related to Daguerre Point and a letter of concurrence related to Englebright.  In these opinions, NMFS reversed its long-standing approach to analyzing dams’ impacts on three threatened fish species and, contrary to its prior opinions, concluded that proposed operation and maintenance actions by the Corps at the two dams were not likely to adversely affect the listed species.  The district court determined that NMFS did not act arbitrarily and capriciously when it changed its approach as reflected in the opinions, and granted summary judgment in favor of NMFS and the Corps.

The Ninth Circuit’s recent decision (which was unpublished) reverses, in part, the district court’s order granting summary judgment.  The Ninth Circuit concludes that an agency’s failure to provide a reasoned explanation for a change in its policy or practices is, itself, arbitrary and capricious.

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