Calif. suit over fish habitat baits hook for Supreme Court

By Jeremy P. Jacobs | 10/22/2015 12:58 PM EDT

Federal protections for a tiny fish could imperil water supplies for more than a million Californians in a withering drought.

Federal protections for a tiny fish could imperil water supplies for more than a million Californians in a withering drought.

And that fish is not the famous — some say, infamous — delta smelt.

Meet the Santa Ana sucker — a specked fish with a gray back and silver belly native to the Santa Ana, San Gabriel and Los Angeles rivers.


Two cities and 10 water districts that pull from the Santa Ana River claim the Fish and Wildlife Service’s 2010 critical habitat designation for the fish will prevent them from providing water to Los Angeles residents.

They have asked the Supreme Court to review the regulations. They claim FWS failed to adequately cooperate with local authorities on water management issues before finalizing the habitat designation.

Perhaps most importantly, they also contend FWS should have conducted a National Environmental Policy Act review of the habitat that considered effects on the "human environment," meaning how the proposal would affect water supplies for people.

The case, Bear Valley Mutual Water Co. v. Jewell, raises the question of whether protections under the Endangered Species Act — one of the country’s most robust environmental laws — may outweigh human needs.

"To the extent we don’t get water available locally, where else do we go?" said the attorney for the water districts and cities, Greg Wilkinson of the firm Best Best & Krieger.

The Supreme Court receives thousands of cases every year and agrees to consider fewer than a hundred. So any petition for review is a long shot. The sucker case may be attractive, however, because of the ongoing water crisis and a split between federal appeals courts on the issue of whether a critical habitat designation requires NEPA analysis.

Parties ranging from property rights groups to conservationists have been involved in the litigation. The green groups claim the districts are overly alarmist and are skeptical of the case’s significance.

But they also note that the case is an example of an increasingly common — and, in their view, alarming — trend in drought litigation: "reverse NEPA" lawsuits where parties seek to use the law’s principles for what they would call an anti-environment agenda.

"We have agencies and groups that are trying to exploit the drought and challenges in providing water supplies and trying to leverage that against the Endangered Species Act," said John Buse of the Center for Biological Diversity, noting that litigation last year involving the threatened delta smelt made similar claims.

"Both efforts are attempts to weaken the protections of the Endangered Species Act," Buse said.

The nearly 100-mile Santa Ana River is the longest in Southern California, winding from southwest San Bernardino County in the Inland Empire down through Orange County before reaching the Pacific Ocean near Newport Beach.

It provides water for about 5 million people, even though its ephemeral streams are frequently bone dry. The river also has a history of violent floods, leading to the construction of two large dams that conservationists say imperiled the Santa Ana sucker.

While the fish is indigenous to three rivers, some estimates say it’s been eliminated from 75 percent of its original range.

After years of litigation, FWS listed the fish as threatened in 2000 and issued a final critical habitat rule in 2010 that encompassed 9,331 acres, mostly along riverbeds.

The final habitat designation was significantly larger than what was laid out in the proposal, and the challengers say it includes dams, water diversion facilities, wastewater treatment plants and flood control structures.

Additionally, the rule called for water releases from the large Seven Oaks Dam near Redlands. Rocks and gravel are critical to the sucker, FWS said, so releases must be high-volume and -velocity to flush them down the river.

But Douglas Headrick of the San Bernardino Valley Municipal Water District said the gravel requirement "significantly interferes with our ability to do our job."

Headrick’s district and the other challengers, which include Redlands and Riverside, sued in 2011. He sought to emphasize that the lawsuit is not about putting the sucker at risk; it’s about ensuring access to water.

"We just want there to be some recognition that we have a role to play being the local water providers," he said. "We’re not on the other side of the environment. I’m of the mind that we’re the ones protecting the environment here. We’re doing the science, making the investment in what these native species need."

Two habitat policies

The legal effort so far has been more difficult than swimming upstream.

Headrick and his allies lost both in federal district court and in the 9th U.S. Circuit Court of Appeals, which largely deferred to FWS.

But the San Francisco-based panel held that it was bound by a 1995 case on the critical habitat issue. That lawsuit, Douglas County v. Babbitt, centered on the habitat designation for Oregon’s spotted owl.

The 9th Circuit ruled in that case that ESA requirements — designed to protect the environment — "have displaced NEPA requirements."

"The legislative history of the ESA," the court wrote, "convinces us that Congress intended that the ESA procedures for designating a critical habitat replace the NEPA requirements."

A year later, however, the 10th U.S. Circuit Court of Appeals reached the opposite conclusion.

In Catron County Board of Commissioners v. FWS, the Denver-based court ruled FWS should have done a NEPA analysis of its critical habitat designation for the spikedace fish and loach minnow in New Mexico.

"Given the focus of the ESA together with the rather cursory directive that the Secretary is to take into account ‘economic and other relevant impacts,’" the court wrote, "we do not believe that the ESA procedures have displaced NEPA requirements."

As a result of the conflicting rulings, FWS has two policies. In most of the country, critical habitat designations don’t receive a NEPA analysis. But in the 10th Circuit — Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming — they do.

That split, which has existed more than 20 years, could make the case more appealing to the Supreme Court.

"It’s incredible to me, quite frankly, that the government has been applying NEPA unequally across the states," said Wilkinson, the challengers’ attorney.

‘Another hoop’?

Conservationists don’t believe the Supreme Court will review the case. But if it does, the "reverse NEPA" aspects of the lawsuit have them concerned about the precedent it could set.

At the core of the challengers’ argument is language in NEPA that mandates a detailed review be completed for any major federal action with the potential to affect "the quality of the human environment."

It’s the "human" aspect, according to Wilkinson, that has largely been ignored in the history of NEPA litigation.

"It’s troubling the environmental community more generally that groups like water agencies would try to assert NEPA against the government," he said. "But the law was written to protect everyone, including those who want to use the water for consumption uses. The government can’t pick and choose who gets the benefit of NEPA and who doesn’t."

But the Center for Biological Diversity’s Buse and others question that reasoning and, ultimately, how large an affect the case would have.

"They want to make it more difficult to designate critical habitat," Buse said. "In terms of resources, the Fish and Wildlife Service is strapped in terms of budget, personnel and time. It is barely able to meet its obligations as it is. Throwing this rather meaningless hurdle into the mix is a problem. Why?"

The Supreme Court will likely consider whether to take up the case later this winter. It takes the votes of four justices to grant review.

Jane Hendron, an FWS spokeswoman, declined to comment on the lawsuit but said the agency can address both sides’ concerns.

FWS, she said, is "working with the water districts to develop a habitat conservation plan that will address their needs and the needs of the Santa Ana sucker."

Pat Parenteau, a Vermont Law School professor, added that even if the cities and water districts prevail, the NEPA analysis for a critical habitat designation would probably be cursory. He called it a "procedural issue."

"In the end," he said, "it would be another hoop that the agencies have to jump through with very unpredictable, speculative consequences."

Wilkinson disagreed, contending that a win would force the service to consider the impacts of endangered species protections on nearby residents.

"If they have to look at the environmental effects," he said, "that would cause them to step back and maybe consider some of the larger questions of what they are doing."