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Pacific Legal Found. v. Watt

ELR Citation: 13 ELR 20392
Nos. Nos. 82-5459, -6013, 703 F.2d 576/19 ERC 1602/(9th Cir., 03/09/1983) Vacated in part, aff'd in part

The court rules that the Endangered Species Act (ESA) does not require the Environmental Protection Agency (EPA) to reinitiate consultation with the Fish and Wildlife Service (FWS) upon approving an insubstantial modification to EPA-funded sewage treatment projects for Los Angeles. Conducting a de novo review of the district court's grant of summary judgment against EPA, 13 ELR 20109, the court first rules that a Pacific Legal Foundation member had shown a sufficient nexus with the sites of the proposed projects to confer standing. After holding that EPA's compliance with the district judge's order to renew the consultation process did not render the case moot, the court rules that the ESA did not require EPA to reinitiate consultation upon modifying the Los Angeles Hyperion sewage treatment project. The change was insubstantial and the concurrence of the FWS that further consultation was unnecessary is entitled to deference. As to other components of the project, the lower court erred in granting summary judgment, since they either had not progressed beyond the planning stage or there was a triable issue of fact as to whether they were still under active consideration. The court vacates the district court's judgment on a Federal Water Pollution Control Act permit issue, which both parties agreed was moot, and affirms the ruling that res judicata bars a National Environmental Policy Act claim.

Counsel for Plaintiff
Ronald A. Zumbrun, Robert K. Best, David M. Shell
Pacific Legal Foundation
455 Capitol Mall, Suite 600, Sacramento CA 95814
(916) 444-0154

Counsel for Defendants
David C. Shilton, Dean K. Dunsmore
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4519

Roger West, Ass't U.S. Attorney
312 N. Spring St., Los Angeles CA 90012
(213) 688-2461

Mary Ann Muirhead
Office of Regional Counsel
Environmental Protection Agency, 215 Fremont St., San Francisco CA 94108
(415) 974-8030

Before Chambers, Farris, and Aguilar,* JJ.