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Grand Canyon Trust v. United States Bureau of Reclamation

ELR Citation: 42 ELR 20169
Nos. 11-16326, (9th Cir., 08/13/2012)

The Ninth Circuit affirmed in part a lower court decision dismissing an environmental group's lawsuit challenging the U.S. Bureau of Reclamation's annual operating plans for the Glen Canyon Dam along the Colorado River under NEPA, the ESA, and the APA. The group was concerned about the dam's impact on the humpback chub, an endangered fish. The group argued that the Bureau should have formally consulted with the U.S. Fish & Wildlife Service (FWS) on each of the annual operating plans describing dam operations. But because the Bureau does not exercise discretion that could inure to the benefit of the humpback chub in issuing the annual operating plans, the plans are not the kind of affirmative "agency action" requiring formal consultation under the ESA and its implementing regulations. Nor did the Bureau violate NEPA in failing to prepare an EA or EIS. An annual operating plan is not a major federal action requiring compliance with NEPA procedures. The court, however, dismissed as moot the lower court's decision that it lacks jurisdiction under the APA to review the FWS' draft 2009 recovery goals for the humpback chub. The 2009 recovery goals were used in the 2009 biological opinion for the humpback chub, but the 2009 biological opinion was replaced in 2011 and is no longer operative.