Natural Resources Defense Council v. Jewell

Section 7(a)(2) of the Endangered Species Act (the act) requires federal agencies to consult with the United States Fish and Wildlife Service (FWS) or the National Marine Fisheries Service prior to taking action that could affect a species protected under the act. In the early 2000s, the United States Bureau of Reclamation (the bureau), the federal agency tasked with managing water resources in western states, prepared a proposed Operations Criteria and Plan (the plan) to provide a basis for renewing several water contracts that were set to expire. The terms of the contracts provided that with respect to any renewal of a contract, the quantity of water was the only predetermined factor. However, renewals of the contracts were not mandatory. The area that the contracts covered was home to the delta smelt, a small fish listed for protection under the act. Accordingly, the bureau initiated the consultation process with the FWS under § 7 of the act. In 2004, the FWS issued a biological opinion, concluding that the plan did not jeopardize the delta smelt. A court invalidated this biological opinion. In 2005, the FWS issued a revised biological opinion, which came to the same conclusion. A court invalidated the revised biological opinion. The bureau prepared its own biological assessments and consulted with the FWS via a series of letters regarding the plan. The letters concurred with the bureau’s biological assessments that the delta smelt would not be jeopardized by the plan, but the letters did not cover any potential effects beyond the analysis contained in the two invalidated biological opinions. Based on the letters from the FWS, the bureau renewed many contracts. In 2008, the FWS issued a new revised biological opinion that contradicted the previous biological opinions and concluded that the plan would jeopardize the delta smelt. The Natural Resources Defense Council (the council) (plaintiff) filed an amended complaint in the district court, challenging the validity of 41 of the renewed contracts. The council argued that the bureau failed to adequately consult with the FWS as required by § 7 of the act. The district court held that the bureau was not required to consult with the FWS under § 7 because the bureau’s discretion in renegotiating the contracts was substantially constrained. The council appealed.