The judge determined that the defendants erred in one direction, asking the National Marine Fisheries Service to issue an analysis for a water diversion facility.
SACRAMENTO, Calif. (CN) – The federal government has complied with the Endangered Species Act in its activities at two dams on California’s Yuba River, a judge ruled Tuesday in a decade-old case.
However, US District Judge Daniel Calabreta had a dig in his decision. It determined that the National Marine Fisheries Service and the U.S. Army Corps of Engineers wrongly excluded the Brophy Diversion from an analysis. He remanded that aspect of the case to the service for reconsideration.
The judge’s ruling on the summary judgment motions closes the 2016 case, which centered on three fish: Central Valley spring chinook salmon, Central Valley steelhead and North American green sturgeon.
Friends of the River had argued that the service and the corps had incorrectly defined the agency’s scope of action at the Daguerre Point and Englebright dams. Operating under the wrong legal definition violated the Endangered Species Act and the corps’ duty to protect the fish.
Calabreta determined that the two dams did not qualify as an agency action, as they were not authorized or funded by the defendants.
“Nothing in the record indicates that the agency authorized, financed or carried out the construction of the dams,” wrote nominee Joe Biden. “In fact, the dams were built decades ago with the authorization and funding of Congress.”
He noted that no dam is operated by the body. They consist of unregulated cast-in-place concrete barriers and as such do not require any operation that would qualify as a going concern.
Ultimately, Friends of the River failed to show that the body was arbitrary and capricious in determining that the dams were not agency action.
“Rather, it appears that Daguerre and Englebright are not authorized, funded, or carried out by the corps, and that the corps lacks discretion to influence or alter the existence of Daguerre and Englebright for the benefit of protected species,” Calabreta wrote.
Friends of the River also argued that the body violated the Endangered Species Act because it did not seek consultation on the agency’s action. This action consists of all activities on the Lower Yuba River, and the corps separated the dams from each other.
The group claimed the body included dams in a broad category: Lower Yuba River activities. However, Calabreta wrote that the environmental group did not show that the corps’ decision to seek separate consultations on activities near the two dams was arbitrary and capricious.
“Activities are not part of the same agency action simply because they occur within an arbitrarily defined geographic area,” he added. “Plaintiff makes no other argument as to why Daguerre and Englebright should be considered part of the same agency action.”
Referring to the Brophy and Cordua deviations, Calabreta wrote that these water bodies had different legal bases.
Cordua operates under a perpetual license issued in 1911 and is operated by a third party, meaning the corps does not authorize, finance or carry out its activities. It does not qualify as an agency action.
However, the Brophy Diversion is different, the judge wrote. It used to operate under five-year licenses issued by the corps, though it has been in “holder status” since the last license expired in 2000. Since then, the corps has allowed the Yuba County Water Agency to operate under the prior license.
Calabreta wrote that the exclusion of the Brophy Diversion defendants from an Endangered Species Act analysis was arbitrary and capricious, since those diversions could affect protected species.
“The failure to provide any adequate explanation for the exclusion of the Brophy Diversion from the analysis is sufficient for the court to find that (the biological opinion) was arbitrary and capricious, as it precludes the court from undertaking a meaningful judicial review,” Calabreta wrote.
Brofi’s diversion case will be remanded to the National Marine Fisheries Service to reevaluate the 2024 biological opinion. Calabreta granted all other aspects of the defendants’ motion for summary judgment, closing the case.
A spokesman for the US Department of Justice declined to comment. Friends of the River and his attorney could not be reached for comment.
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