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18. Grand Canyon Trust v. U.S. Bureau of Reclamation, 691 F.3d 1008 (9th Cir. 2012).

The Grand Canyon Trust (Trust) (279) appealed the United States District Court for the District of Arizona's grant of summary judgment for the United States Bureau of Reclamation (BOR) (280) and the United States Fish and Wildlife Service (FWS) (281) regarding the Glen Canyon Dam (Dam). (282) The Trust alleged violations of the Endangered Species Act (ESA) (283) in regard to the endangered humpback chub (Gila cypha), National Environmental Policy Act (NEPA), (284) and Administrative Procedure .Act (APA) (285) as a result of the Dam's operation. The United States Court of Appeals for the Ninth Circuit dismissed the Trust's claims as moot in part and affirmed in part.

The Dam is located on the Colorado River in Northern Arizona. It created Lake Powell, a reServoir that provides drinking water for twenty-five million people. Without mitigation, the Dam largely prevents the flow of sediment from Lake Powell to the Colorado River below the Dam, affecting critical habitat of the humpback chub by malting certain regions of the river cooler. The core issues in this case centered on application of statutory requirements protecting the humpback chub.

Under the Grand Canyon Protection Act of 1992 (GCPA), (286) the Secretary of the Interior (Secretary) was required to complete a final environmental impact statement (EIS) under NEPA and transmit annual operating plans (AOPs) to Congress and the Governors of the Colorado River Basin States. NEPA requires the issuance of an EIS for every major federal action significantly affecting the quality of human environment. Responding to the GCPA's statutory requirements, BOR completed its final EIS in 1995. This EIS analyzed alternative operations under a modified low fluctuating flow (MLFF) regime and a seasonally adjusted steady flow regime. (287)

BOR also formally consulted with FWS regarding the operation of the Dam using MLFF. Under the ESA, the action agency must formally consult with the species consulting agency--either FWS or the National Marine Fisheries Service (NMFS)--if the action agency may affect a listed species. The consulting agency then issues a biological opinion (BiOp) which states whether a critical habitat of a listed species will be jeopardized. The consulting agency may also issue an incidental take statement (ITS) if the action may incidentally take a threatened or endangered species. Through this consultation process, FWS issued a BiOp in 1994 that stated that MLFF jeopardized the humpback chub and recommended adoption of an adaptive management program (AMP). (288) This AMP process resulted in BOR's 2008 Experimental Plan (2008 Plan). Following additional formal consultation, FWS issued a new BiOp (2008 BiOp) reversing FWS's previous jeopardy position expressed in the 1994 BiOp. This reversal prompted the Trust to file suit in the District of Arizona. (289)

The district court granted summary judgment to BOR, concluding that the ESA and NEPA do not apply because AOPs are neither agency actions nor major federal actions. Although the district court recognized that part of the 2008 BiOp was valid, it invalidated FWS's reversal of its MLFF jeopardy position. The district court found FWS's reversal invalid because FWS did not include a reasoned basis explaining why MLFF would not destroy or adversely modify critical habitat for the humpback chub and because FWS's conclusion lacked a discussion on the effects of MLFF on chub recovery.

In response to the district court's ruling, FWS issued a 2009 Supplement to the 2008 BiOp that resulted in a 2009 BiOp. The Trust then filed a supplemental complaint containing the following three claims: 1) "the 2009 BiOp and the 2009 ITS violate the ESA; 2) the 2009 ITS violates NEPA; and 3) FWS's draft 2009 Recovery Goals, on which FWS relied to address humpback chub recovery in the 2009 BiOp, violate the ESA. …

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