Academic journal article Environmental Law

The Ninth Circuit's Differential Approach to Alternatives Analysis in NEPA Cases: Westlands Water District V. United States Department of Interior

Academic journal article Environmental Law

The Ninth Circuit's Differential Approach to Alternatives Analysis in NEPA Cases: Westlands Water District V. United States Department of Interior

Article excerpt

I.   INTRODUCTION
II.  THE NINTH CIRCUIT'S APPROACH TO NEPA ALTERNATIVES ANALYSIS
III. THE NINTH CIRCUIT'S LIMITED RANGE OF ALTERNATIVES FOR
     CONSERVATION ACTIONS
     A. The Trinity River Division and Background of Westlands
        Water District v. United States Department of Interior
     B. The Ninth Circuit's Analysis in Westlands Water District
        v. United States Department of Interior
     C. The Ninth Circuit's Analysis in Kootenai Tribe of Idaho v.
        Veneman
IV.  THE NINTH CIRCUIT'S RANGE OF ALTERNATIVES ANALYSIS FOR
     NON-CONSERVATION ACTIONS
V.   THE IMPLICATIONS OF THE NINTH CIRCUIT'S APPROACH
     A. Limiting NEPA's Use as an Obfuscatory Tool
     B. Doing Away With Alternatives Analysis Under the Healthy
        Forests Initiative
VI.  CONCLUSION

I. INTRODUCTION

The Trinity River rises in the rugged mountains of northern California and tumbles southward, picking up mountain rills, creeks, and full-blown rivers before thundering northwest toward the Klamath River in narrow granite-sided gorges and powerful emerald slicks. Historically, the Trinity River hosted enormous runs of salmon and steelhead, (1) sustaining the Hoopa and Yurok tribes as well as abundant wildlife and eventually commercial and sport fishermen. (2) Beginning in 1964, the Trinity River Division (TRD) of the Central Valley Project (CVP) diverted the majority of the river southward, through the Sacramento River, (3) to irrigate farmland in California's Central Valley. (4) The diversion also provided much needed water flows for endangered Sacramento River winter chinook (Oncorhynchus tshawytsha) and threatened delta smelt (Hyponesus transpacificous) imperiled by warm, low water conditions in the Sacramento River and high salinity in the San Francisco Bay Delta. (5)

After allowing the CVP to divert the river for several decades, (6) Congress sought in 1984 to resurrect fish and wildlife populations in the Trinity River Basin. To that end, Congress passed two statutes (7) and directed the Secretary of the Interior to complete the Trinity River Flow Evaluation (TRFE) by 1996. (8) The TRFE was initiated by the Secretary in 1981 to study the damage to the fishery caused by the TRD. (9) The Fish and Wildlife Service (FWS), in conjunction with the Hoopa Tribe, conducted the study, which concluded that increased flows mimicking natural conditions would be the most effective way to restore the fishery. (10) The TRFE recommended a permanent increase in water flows that would vary depending on yearly precipitation. (11) A draft environmental impact statement (DEIS), released in October 1999, considered this proposal along with several alternatives. (12) The final EIS, completed in November 2000, recommended implementation of the preferred TRFE flow augmentation plan in the Record of Decision (ROD) issued later that year. (13)

Westlands Water District (Westlands), the largest water district in California, filed suit following the release of the ROD, alleging that the EIS failed to comply with the National Environmental Policy Act (NEPA). (14) Specifically, Westlands argued that the range of alternatives addressed in the EIS failed to satisfy NEPA because the FWS statement of purpose and need, which determined the scope of the alternatives in the EIS, was based solely on the objective of increasing river flows, and was therefore impermissibly narrow. (15) The district court agreed, finding that the EIS had improperly narrowed the statement of purpose, and thus had failed to consider a reasonable range of alternatives. (16) The court enjoined full implementation of the recommended flow, (17) and directed the Department of the Interior to implement non-flow restoration measures such as bank restoration and vegetation development. (18)

FWS appealed the district court decision, and the Ninth Circuit rejected Westlands' challenge. (19) The court held that FWS had sufficient discretion to narrow the range of alternatives to consider only those alternatives that would fulfill the stated goals of the EIS: Trinity River anadromous salmonid habitat restoration. …

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