Platt v. Platt

Platt v. Platt, 337 P.3d 431 (Wyo. 2014) (holding the district court’s order to partition in kind a ranch property, including the water rights appurtenant to the individual parcels, by ordering the owners of the property to construct a separate ditch to carry water from one parcel to the other, was incomplete and clearly erroneous because the record lacked competent evidence to establish the ditch requirement would not manifestly injure the value of the property).

In the first proceeding before the district court, the commissioners recommended the parties decide the location for the Dedicated Ditch because snow cover prevented the commissioners from locating it. When the parties were unable to agree on a location, the district court held a second hearing to decide the issue. The district court heard recommendations from the commissioners, Alice, and the Trust. Ultimately, the district court ordered the parties to construct the Trust’s proposed “Westerly Ditch” because, although it was “arguably the most expensive option, [it offered] the best future outcome for both parties, being that there would be minimal to no interaction between them for maintenance and inspection.” The Westerly Ditch required an easement from Kraft Ranches, a non-party. The district court ordered the parties share the cost of construction, including the cost of installing a workable irrigation system.

Alice appealed to the Wyoming Supreme Court (“Court”), arguing that the district court’s order for construction of the Westerly Ditch was legally and factually erroneous because it required her to obtain an easement from a non-party and to change her means of water conveyance without evidence that she could do either without causing manifest injury to the value of her property.

On appeal, the Court first addressed whether the district court’s first order for partition in kind of the parties’ property was clearly erroneous. Under Wyoming law, partition in kind is inappropriate if “the real property cannot be divided in kind without causing manifest injury to its value.” In the first proceeding, the district court determined the property could be partitioned in kind “without manifest injury to the whole” despite the fact that the commissioners did not determine the exact location of the Dedicated Ditch. The Court found this conclusion erroneous. Given that Alice planned to use the partitioned property for agriculture and ranching, knowing whether and how water could be delivered to her parcel was essential to determining the land’s value. The Court noted “[t]here can be little doubt that a property with good water rights and a means to convey the water to the land is worth considerably more in arid Wyoming than land without one or the other.” The Court held that the location of the Dedicated Ditch would also affect the value of the Trust’s parcel because two of the ditch locations the district court considered would have used seven acres of the Trust’s valuable hay meadows. Because the location of the Dedicated Ditch would impact the partitioned property’s value, the Court held the district court’s finding that partition in kind would not manifestly injure the value of the property, without affirmatively locating the ditch, was clearly erroneous.

Next, the Court addressed whether the district court erred in the second proceeding when it ordered the parties to build the Westerly Ditch because it required an easement from a non-party, Kraft Ranches. Alice argued the district court could not require the parties to obtain an additional easement across Kraft Ranches’s property without evidence of permission. The Platt brothers argued that the district court could require the easement because evidence in the record demonstrated Kraft Ranches would grant it. The Court began by noting that it was a matter of first impression whether a court has the power to order a party to obtain an easement from a non-party in a partition proceeding. The Court held that one approach to the issue may lie in the common law doctrine of “owelty,” where one coparcener compensates the other when land is not capable of being partitioned into exactly equal shares. Accordingly, had the record supported a conclusion that it was possible to obtain an easement from Kraft Ranches and build a ditch connecting the Westerly Ditch to King Turnbull Ditch No. 2, the district court could have ordered the Trust to pay the difference in value or divide the cost of construction between the parties to effectuate an equitable partition.

However, the Court held that the “vague promise of future performance” from Kraft Ranches in the commissioners’ report was not specific enough to constitute consent to an easement under the Statute of Frauds. Because the district court did not determine if the easement (i) could be obtained, (ii) would allow appropriate construction and necessary maintenance of the ditch, or (iii) would run with the land, the Court held it had no basis to determine that the partition was equitable, nor that the order would not manifestly injure the value of the partitioned property.

Next, the Court considered whether the district court’s order for construction of the Westerly Ditch required Alice to change her means of conveyance for the water she received in the partition. Alice argued she could not be compelled to change her means of conveyance because Wyoming law requires her to petition the State Board of Control for the change, but does not guarantee permission. The Trust argued that a person can change their means of conveyance without petitioning the Board of Control. The Court held that the Wyoming Legislature did intend to “require a person changing the means of conveyance of water supplied through a water right to obtain approval by the Board of Control,” but that the district court did not order Alice to change her means of conveyance. If the district court required construction of the Westerly Ditch on remand, Alice could choose to change her means of conveyance to bring water to her land, or choose not to change her means of conveyance and forego her water rights. The Court noted that this result “may be a Hobson’s choice, but it may also be unavoidable.” However, the Court also noted the lack of evidence demonstrating that Alice could obtain approval to change her means of conveyance. On remand, evidence that Alice could not obtain permission to change the means of conveyance would negatively affect the value of her partitioned parcel and weigh against the Westerly Ditch as an equitable means of dividing the property.

Finally, the Court considered whether the district court abused its discretion in choosing the Westerly Ditch over the alternatives that Alice and the commissioners suggested. Alice contended that building the Westerly Ditch was a high cost risk because the ditch was unproven. The Trust argued that evidence presented at trial showed the Westerly Ditch could be successfully built and operated. The Court concluded the district court did not review evidence of construction costs for the Westerly Ditch until after selecting it, and remanded the issue of whether the cost of building the Westerly Ditch would manifestly injure the value of the property.

Accordingly, the Court reversed the district court’s order to construct the Westerly Ditch, and remanded with instructions for the district court to determine whether the property could be partitioned in kind without manifestly injuring its value, and if so, whether the Westerly Ditch is an equitable means of dividing the property.


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Brown v. Greenheart

Brown v. Greenheart, 335 P.3d 1 (Idaho 2014) (holding that: (i) the statute of limitations for a quite title action does not begin to run until a party claims a right in property that is adverse to another; (ii) the statute of limitations for mutual mistake does not begin to run until the facts constituting the mistake are discovered, not when the mistake is discoverable; (iii) the plaintiffs adequately pled the issue of mutual mistake; and (iv) the conveyance was ambiguous and, therefore, the trial court did not err in considering extrinsic evidence to resolve the ambiguity).

Jay Brown and Christine Hopson-Brown owned a 320-acre parcel of land in Elmore County (“Brown Property”). In 2000, the Snake River Basin Adjudication Court decreed water rights associated with parcel to the Browns. The rights authorized the Brown’s to irrigate a total of 287 acres. In 2003, the Browns agreed to idle 160 acres of their property from irrigation, and lease the associated water rights to the Idaho Water Resource Board. Three years later, the Browns listed 60 unirrigated acres of their property for sale, communicating to their real estate agent that they did not wish to transfer any water rights with the listed 60 acres.

Augusta Greenheart purchased the 60 acres of land from the Browns. The real estate agent verbally informed Greenheart that the land was “dry,” and that there were no water rights associated with the property. The purchase and sale agreement included two provisions about the associated water rights. The first provision stated: “Seller represents that the property does have the following utilities, improvements, & other rights available.”  The provision was marked “not applicable.” The second provision, paragraph 16, stated: “WATER RIGHTS: Description of water rights, water systems, wells springs, water, ditches, ditch rights, etc. if any, that are appurtenant thereto that are on or used in connection with the premises and shall be included in the sale unless otherwise provided herein.” This provision was left blank. Additionally, in the Seller’s Disclosure Form accompanying the purchase and sale agreement, the parties marked the disclosure “Irrigation water provided by” as not applicable.

In 2007, First American Title prepared a warranty deed conveying the 60-acre piece of land to Greenheart, granting the premises “with their appurtenances.” Soon after, Greenheart noticed that, contrary to the conversations she had with the real estate agent and the Browns, her new property was classified as irrigated agriculture for tax purposes. Greenheart submitted a challenge with the Elmore County Board of Equalization to have the property classified as dry-grazing. The Elmore County Board of Equalization adjusted the classification, which decreased her taxes by $600 annually.

In 2012, the City of Mountain Home entered into discussions with the Browns to purchase their water rights for $2,000 per acre. During the negotiations, the Browns’ attorney notified the city that the Browns might have conveyed some of their water rights to Greenheart during the 2006 sale because of the “appurtenances” language contained in the 2007 warranty deed. After the Browns notified Greenheart of the possible mistake, Greenheart filed a notice of change of water right ownership with the Idaho Department of Water Resources (“IDWR”). IDWR approved Greenheart’s request, granting her ownership of a portion of the Browns’ water rights.

The Browns filed a quiet title action, “and sought declaratory judgment that they owned the water rights because the claim that the water rights passed under the appurtenances clause of the warranty deed was rebuffed by facts demonstrating that the parties did not intend to convey water rights.” The district court found that inclusion of the appurtenance language in the warranty deed was based on a mutual mistake between the parties, that the Browns were entitled to equitable relief on the grounds of quasi-estoppel and waiver, and entered a judgment reforming the warranty deed to reserve the water rights to the Browns.

On appeal, the Supreme Court of Idaho (“Court”) first addressed Greenheart’s contention that the Browns’ quiet title action and mutual mistake claim were both time-barred. The Court agreed with the district court, and held that the statute of limitations provided in Idaho Code section 5-224 did not prohibit the Browns’ quiet title action. The court noted that a cause of action for quiet title does not begin until a party “claims an interest in property ‘adverse to’ another.” The Court determined that the statute of limitations period did not begin to run until Greenheart asserted a claim to the water rights by filing the notice to change ownership with the IDWR.

The Court also rejected Greenheart’s assertion that the three-year statute of limitations provided in Idaho Code section 5-218(4) prohibited the Browns’ mutual mistake claim. Greenheart argued that the Court should adopt “a bright line rule that a party is expected to realize the alleged fraud or mistake at the time of execution of a deed.” In refusing to adopt such a rule, the Court noted that the statute expressly states a cause of action does not accrue “until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” The Court held that this did not occur until the Browns’ attorney discovered the mistake in 2012. Prior to that, both parties had operated under the assumption that the sale did not transfer water rights. Greenheart failed to produce evidence to the contrary.

Next, the court addressed the Brown’s mutual mistake claim. The district court ruled that the Browns’ were entitled to reformation of the deed based on mutual mistake. The district court found that “both parties shared a vital misconception about the water rights . . . and that the misconception was so substantial and fundamental as to defeat the object of the parties, which was the sale of dry-grazing land.” Greenheart did not challenge the factual basis of the district court’s ruling, but argued that the district court erred because the Browns did not plead mutual mistake, or in the alternative, that they did not plead mutual mistake with sufficient particularity. The Court disagreed and found that the Browns sufficiently plead the mutual mistake claim and that Greenheart had adequate notice that the issue would be litigated.

Greenheart also asserted a negligence claim against the Browns, arguing that they were negligent in protecting their interests in the water rights by not seeking legal advice during the sale. The district court concluded that the Browns acted reasonably because they sought the assistance of a licensed real estate agent. Because the district court’s discussion of negligence was only in the context of the statute of limitations argument, Greenheart’s independent negligence claim was being raised for the first time on appeal and the Court declined to address it.

Last, Greenheart appealed the district court’s decision that the purchase and sale agreement was ambiguous. The Court noted that, “[a] contract term is ambiguous when there are two different, reasonable interpretations of the language.” The Court found that the district court did not err in finding paragraph 16—providing for a “[d]escription of water rights . . . if any, that are appurtenant thereto that are now on or used in connection with the premises and shall be included in the sale unless otherwise provided herein”—was ambiguous because the term “herein” is inherently ambiguous. The Court also held that the agreement was ambiguous as to whether water rights were transferred, because the Browns checked the box indicating that a water rights transfer fee was not applicable. The Court stated that, “[i]f water rights were intended to be transferred, then the payment of the transfer fee would very much be applicable.” As a result, the Court held that the district court did not err in considering extrinsic evidence to resolve the ambiguity.

Accordingly, the court affirmed the district court’s findings in all respects, and held that the Brown’s were entitled to reformation of the original deed to specifically reserve all water rights to the Brown’s.


The title image features the Snake River in Mountain Home, Idaho. This image was created by an employee of the government and as such is part of the public domain. 

Marks v. 71 Ranch

Marks v. 71 Ranch, LP, 334 P.3d 373 (Mont. 2014) (holding that: (i) water commissioner records of low water supply levels had little probative value regarding whether beneficial use; (ii) testimony that different portions of a creek constituted separate water sources was insufficient to overcome a prior court decree describing the creek as a single, unified system; and (iii) standing alone, water commissioner records of insufficient delivery did not prove abandonment.

In 1940, Wellington Rankin acquired a decree (“Rankin Decree”) to four water rights (the “creek rights”) located on Confederate Creek. Rankin’s rights had a priority date of 1866 and a combined flow rate of 385 miner’s inches. The Rankin Decree described Confederate Creek as a single, unified water system. It also identified a point of diversion and place of use located on the lower part of the creek (“downstream location”). In 1950, Rankin sold the property surrounding the downstream location. However, Rankin properly severed and maintained ownership of the creek rights. In 1982, Louise R. Galt, Rankin’s successor in interest and 71 Ranch’s predecessor in interest, filed Statements of Claim for the creek rights. The Statements of Claim described a new point of diversion and place of use roughly three miles upstream from the original diversion point (“upstream location”). Objector and appellant Donald C. Marks owned property and water rights between the claimed upstream and old downstream locations. Marks’ rights were junior to the creek rights.

Marks filed an objection to the creek rights’ new place of use and point of diversion. The Water Master dismissed Marks’ objection in 2002 and the Water Court affirmed the dismissal. Both determined that Marks had failed to rebut the prima facie evidence that Galt’s claims properly defined the point of diversion and place of use for the creek rights at the upstream location. Marks’ appeal thus came to the Supreme Court of Montana (“Court”) to consider whether the Water Court erred in its determination. In Montana, prior to July 1, 1973, an appropriator could change the point of diversion and place of use of its water right, as long as the appropriator beneficially used the right at the new place of use and did not injure any other appropriators. Under Montana law, a claim of right is prima facie proof of its content and places the burden of proof on the claim’s objector to prove, by a preponderance of the evidence, that the original claim misrepresented the actual beneficial use of the water right prior to July 1, 1973.

Thus, Marks had to prove that the information in Galt’s Statement of Claim was inaccurate. Marks offered three theories: (1) the creek rights were not beneficially used at the upstream location prior to July 1, 1973; (2) the upper and lower portion of Confederate Creek were separate water sources; and (3) Rankin and Galt had abandoned the water rights.

To support his first argument, Marks provided records indicating that on certain days, water flow was less than the Rankin Decree dictated. Marks used this information to argue that, if Rankin and Galt had beneficially used their creek rights, more water would have flowed to the upstream location of the creek rights. The Water Master observed that the records did not indicate the total water flow, made no mention of diversions during high flows, did not describe stream flow conditions, and did not disclose whether anyone ever requested more water. The Water Master also noted that water commissioners were generally only appointed in times of water shortage. The Court concluded that given these facts, it was reasonable to assume that Marks’ records only reflected measurements of low flow years. Given the lack of any data for several multi-year periods, the Court found that the Water Master did not err in determining these records provided minimal probative value regarding the question of beneficial use during the disputed decades.

The Court then addressed Marks’ second argument. Marks argued that there were separate water sources for the upper and lower portions of the creek. In support of his claim, Marks testified as to the division of the two portions, and he introduced the testimony of the 2002 water commissioner. However, the commissioner’s testimony conflicted somewhat with Marks’ own testimony. Specifically, Marks claimed one particular area would dry up in the summer months while the water commissioner conceded that water did flow past the area during the spring flood season. The Court considered the conflicting testimonies and noted that Marks failed to present any evidence from anyone familiar with the conditions of the Creek prior to 1973. The Court further noted that the Rankin Decree described the creek as a single, unified water system. Emphasizing that a “decree of a court stands as an absolute finality” and that Marks had failed to provide reliable evidence to rebut the decree, the Court affirmed the Water Master’s findings that the two portions of the creek did not constitute separate sources.

Finally, the Court addressed Marks’ abandonment argument. To support this contention, Marks relied on the same evidence he had provided for his first assertion. Specifically, he used the water commissioner’s reports of insufficient water flow to claim that Rankin and Galt failed to beneficially use their rights. From this argument, Marks drew the conclusion that Rankin and Galt had effectively abandoned their rights by allowing them to lie dormant for over twenty years. Relying on the previous decision that standing alone, the water commissioner records failed to prove non-use, the Court determined that Marks’ argument for abandonment failed.

Accordingly, the Court affirmed the Water Court’s dismissal of Marks’ objection.


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Michigan v. U.S. Army Corps of Eng’rs, 758 F.3d 892 (7th Cir. 2014) (holding: (i) federal agencies are subject to public nuisance claims for their choice of policy implementation options; (ii) appellee agencies were not authorized by statute to operate waterways in the interest of navigation to the exclusion of potential environmental harms; (iii) appellants had not alleged sufficient facts to show appellees’ operation of the waterway constituted a public nuisance).

In the early twentieth century, a series of canals were constructed to connect Lake Michigan to the Mississippi River—two of the country’s most crucial navigable waterways. Near the same time, the Chicago Area Waterway System (“CAWS”) was constructed and the flow of the Chicago River was reversed to carry Chicago’s wastewater away from Lake Michigan. In the 1970s, further down the Mississippi River, aquatic farmers introduced bighead and silver Asian carp into their facilities to mitigate unwanted plant growth. Flooding in the area eventually allowed the Asian carp to navigate into open freshwater systems and ultimately within six miles of Lake Michigan and subsequently all of the Great Lakes.

As a species, Asian carp present potential harm both to the ecosystems they occupy and to individuals in their vicinity. Asian carp are insatiable eaters that consume food in such amounts that they crowd out other species of fish by eliminating their food supply. In addition, Asian carp present dangers to individuals in their vicinity by leaping out of the water when agitated and causing damage to watercraft and injury to individuals on board.

To address the growing concern of Asian carp advancement, the Army Corps of Engineers (“Corps”) and the Metropolitan Water Reclamation District of Greater Chicago (“District”) have attempted preventative measures for more than a decade. In 2002, the Corps introduced the Dispersal Barrier System to kill or shock fish that passed by. By 2011, a total of three barriers had been constructed in the CAWS. After a spotting of Asian carp near one of the barriers in 2009, the Corps introduced fish poison—rotenone—near the barrier twice. By 2010, the Asian Carp Regional Coordinating Committee—a group including federal, state, and Canadian authorities lead by the White House Council on Environmental Quality—began monitoring Asian carp in the CAWS. Through April 2014, none of the Committee’s tests indicated the presence of Asian carp beyond the barriers.

Nevertheless believing that the Asian carp presented an imminent and serious threat, five states (Michigan, Wisconsin, Minnesota, Ohio, and Pennsylvania), joined by the Grande Traverse Band of Ottawa and Chippewa Indian tribe, (collectively, “States”) brought suit against the Corps and District. The States claimed that the Asian carp would either soon or already had invaded the Great Lakes, which would result in billions of dollars of damage. Specifically, the States claimed that the Corps and District had failed to act according to their responsibility of preventing the potential Asian carp damage and sought a permanent injunction under the federal common law of public nuisance. The injunction required the Corps and District to expeditiously develop and implement measures to create a complete hydrological separation between Lake Michigan and the Mississippi River Basin. The States also demanded an expedited completion of a congressionally mandated report on the options of measures available to prevent aquatic nuisance species between the Great Lakes and the Mississippi River (“the Report”).

At trial, the States sought a preliminary injunction requiring the Corps and District to take aggressive interim steps to stop the advancement of the Asian carp. The United States District Court for the Northern District of Illinois (“district court”) denied the preliminary injunction, stating that the States had failed to prove that irreparable injury would occur before resolution of the underlying litigation. On appeal, the United States Court of Appeals for the Seventh Circuit (“court”) affirmed the denial of preliminary injunctive relief. The district court ultimately dismissed the States’ suit for failure to state a claim. In so holding, it reasoned that the operation of the CAWS and Lake Michigan-Mississippi River connection did not constitute a public nuisance because such operation was both lawful and required under the law.

Between the district court’s decision and the States’ appeal, the Corps completed the Report, which proposed eight alternative plans to prevent aquatic nuisance in the area. However, the Corps declined to make a recommendation in the Report due to the need for further technical and policy evaluations. The proposed options ranged in cost between $7.8 billion to upwards of $18.3 billion for lakefront hydrological separation. In addition to being among the most expensive options, the Corps stated that a hydrological separation would also have significant negative effects in the waterways in terms of navigability, water quality, and ecology.

On appeal, the court first indicated an appreciation for the potential dangers at stake regarding the advancement of Asian carp for the States, noting that the risk of danger had increased since the start of litigation. First, the court held that agencies of the federal government are subject to federal public nuisance actions. The court explained that, when federal agencies act according to their enabling statutes, their activity represents a balancing of interests undertaken by Congress, which therefore reflects the public interest and precludes public nuisance claims. However, an agency’s choice among options to implement a policy is not subject to such rigorous interest balancing and may not categorically represent the underlying public interest. Accordingly, these actions may be subject to public nuisance claims. The court emphasized that the agencies were authorized by statute to operate the CAWS in a manner conducive to facilitating navigation but, contrary to the district court’s conclusion, were not authorized to execute these duties while disregarding the potential environmental impacts of doing so, including the advancement of potentially hazardous fish species. However, the court also held that the Corps and District had been dutiful in their efforts to accomplish both of their responsibilities: to operate the CAWS waterways in such a way that would prevent the advancement of Asian carp into Lake Michigan while facilitating navigation. The court indicated that, even in a light most favorable to the States, there were insufficient facts to suggest the Asian carp would advance beyond the Corps’ and District’s current prevention attempts, nor that the Corps and District would fail to adjust their efforts should the current attempts fail. Accordingly, the States had not alleged sufficient facts for the court to hold that the Corps’ or District’s current actions constituted a public nuisance.

The court also held that it would be inappropriate for the federal judiciary to grant the States’ request for an injunction requiring the construction a hydrological separation under the Rivers and Harbors Act. That Act precludes the court from ordering an injunction requiring the Corps to construct a separation of the waterways, in light of concerns regarding impediments to navigation of crucial interstate or international waterways. Instead, the court indicated that other remedies should be considered in this case, including judicial review of the recommendation chosen by the Corps and District to solve the Asian carp problem and a claim for review of agency action, should the Corps or District halt their preventative measures unlawfully. Finally, the court held that the States were not precluded from bringing suit in the future, should the advancement of Asian carp be imminent and occur as a result of the Corps’ or District’s negligence in operating the waterways.

Accordingly, the court affirmed the judgment of the district court’s dismissal of the State’s suit against the Corps and District for failure to state a claim.


The title image features an Asian Carp leaping out of the water. This file is licensed under the Creative Commons Attribution 2.0 Generic license.

Eldorado Co-op Canal Co. v. Lower Teton Joint Objectors, 337 P.3d 74 (Mont. 2014) (holding: (i) use of a ditch to divert water from river to a property was a management tool, not a right personal to the diverter; and (ii) the Water Court acted properly in listing the water rights that could be diverted through the ditch).

The Ninth Judicial District Court (“district court”) appointed Water Commissioners to administer certain water rights diverted from the Teton River pursuant to a 1908 water rights decree in Perry v. Beattie. That case determined the priority date and flow rate of dozens of Upper Teton water right claims, claims located upstream of the Plaintiffs in this case. The Plaintiffs held priority dates senior to or contemporary with the upstream users.

Around 1950, the Water Commissioner appointed to administer the Perry decrees, began diverting most of the Teton’s flow into the Bateman Ditch. The ditch runs parallel to the Teton River’s natural channel, bypassing a several-mile-long section of gravel riverbed. The gravel riverbed soaks up a significant amount of water. The Water Commissioner did not establish this practice in accordance with an express order or written agreement among appropriators. Choteau Cattle had the most senior right in the Perry decree, with a priority date of 1876. In exercising its water right, Choteau Cattle diverted water through the Bateman Ditch, returning it to the natural channel during times of low flow. If the Bateman Ditch were not utilized in this manner, upstream junior right holders (including Saylor and Eldorado) would have to substantially restrict their water use. The Lower Teton Joint Objectors (“Lower Users”) challenged this practice.

In 2011, the Lower Users commenced an action claiming that the Water Commissioners’ diversion of water out of the Teton River and into the Bateman Ditch harmed their appropriation rights by depriving the Teton River aquifer of recharge water. The Water Court found that Saylor had a protectable right to divert Teton River water through the Bateman Ditch downstream. The Lower Users and Saylor appealed.

The Supreme Court of Montana (Court”) addressed two predominant issues on appeal. It first considered whether the Water Court erred in establishing the Bateman Ditch diversion as a right belonging to Saylor. Subsequently, the Court considered whether the Water Court erred by including Choteau Cattle on the tabulation of water rights holders authorized to divert water from the Teton River into the Bateman Ditch.

In addressing the first issue, the Court reiterated portions of the Water Court’s opinion, emphasizing two main points. First, water law recognizes “historic patterns of water use.” Therefore, the fact that this particular use of the Bateman Ditch was no longer part of any claim in the water adjudication process did not preclude recognition of the practice. Additionally, the Court noted that while the Bateman Ditch diversion was not an exchange plan, it was “typical of historic arrangements” made throughout the area in order to obtain maximum benefit from a limited resource. The Bateman Ditch was a typical tool used by administrators as a conservation measure. The Court disagreed, however, with the Water Court’s conclusion that the Bateman Ditch diversion was a private right held by Saylor. In so concluding, the Court explained that Saylor did not possess a right or duty to administer the water rights of others. Rather, the administration of these rights was a management tool available only to the District Court and its Water Commissioner.

Subsequently, the Court concluded that the Water Court acted properly in listing the water rights that could be diverted through the Bateman Ditch. The Lower Users objected, arguing that Choteau Cattle’s right was improperly listed because Choteau Cattle had specifically removed the Bateman Ditch as a point of diversion for its right. Additionally, the Lower Users argued that during the water adjudication process, Saylor failed to claim the right to use Bateman Ditch to supply Choteau Cattle’s right. The Court explained that because the use of Bateman Ditch to deliver water to Choteau Cattle was a management tool and not a right personal to Saylor, it was unnecessary for Saylor to have claimed the right in the adjudication process. It therefore concluded that the Water Court properly listed Choteau Cattle’s right as one diverted from the Bateman Ditch.

Accordingly, the Court affirmed the Water Court’s decision in part, reversed in part, and remanded to the Water Court for further proceedings.


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American Whitewater v. Tidwell, 770 F.3d 1108 (4th Cir. 2014) (holding that: (i) the U.S. Forest Service’s revised wild and scenic river management and oversight plan allowing restricted floating on the northernmost section of the Chattooga River was supported by the record and not arbitrary and capricious; (ii) floating is not an outstandingly remarkable value (“ORV”) of the Chattooga requiring protection under the Wild and Scenic Rivers Act (“WSRA”); and (iii) claims that the revised management plan may lead to additional trespassing and environmental impact were not reasonably foreseeable and did not require analysis under the National Environmental Protection Act (“NEPA”)).

In 1974, Congress designated fifty-seven miles of the Chattooga River (“Chattooga”) for preservation under the WSRA. The U.S. Forest Service is responsible for managing the Chattooga under the WSRA. The WSRA requires the Forest Service to “protect and enhance” the “outstandingly remarkable values . . . that led Congress to designate the river” and to limit other uses that “substantially interfere with the public’s use of these ORVs.” Prior to 2012, Forest Service policy permitted non-motorized rafting on the lower portions of the Chattooga, but prohibited the practice on the twenty-one-mile northernmost section of the Chattooga (“Headwaters”). In 2005, after American Whitewater and several other non-motorized watercraft associations (collectively “American Whitewater”) challenged the floating ban, the Forest Service began studying whether floating could be expanded beyond the lower portions of the Chattooga.

Over the course of seven years, the Forest Service “measure[d] the expected impact of allowing Headwaters floating on the Chattooga’s ORVs.” The Forest Service concluded that expanded floating made sense so long as it imposed certain limitations to ensure the upper Chattooga still offered opportunities for remoteness and solitude to all users, and to limit potential conflicts with other recreational users. These limitations included restricting floating on the Headwaters to the winter months when water flows were highest and prohibiting floating in areas that offered prime fishing but marginal floating potential. In 2012, the Forest Service revised its management plan for the Chattooga to allow floating on most of the Headwaters between December 1 and April 30 or when flows exceeded 350 cubic feet per second. The Forest Service determined that the revised plan would have no significant effect on the environment and did not require preparation of an Environmental Impact Statement.

American Whitewater filed suit in the United States District Court for the District of South Carolina (“district court”) challenging the Forest Service’s revised plan. American Whitewater argued that the revised plan did not go far enough, and that the remaining limits on floating were both inconsistent with WSRA and arbitrary and capricious in violation of the APA.

Two parties, Georgia ForestWatch (“ForestWatch”), a not-for-profit environmental group, and the Rust family, who own approximately 1.7 miles of the Headwaters’ shoreline, moved to intervene in this suit. ForestWatch asserted that the Forest Service’s decision to allow any floating on the Headwaters violated the Forest Service’s mandate under the WSRA. The district court, however, limited the scope of ForestWatch’s intervention to defending the remaining limits on Headwater floating. The Rust family sought a declaratory judgment from the district court that the Headwaters running through their property were non-navigable and outside Forest Service control. The Rust’s also filed a cross-claim asserting that the Forest Service’s analysis violated NEPA. All parties moved for judgment on the administrative record. The district court upheld the Forest Service’s decision, rejected all of American Whitewater’s claims and the Rust’s NEPA claim, and dismissed the Rust’s request for a declaratory judgment as premature. The parties appealed to the United States Court of Appeals for the Fourth Circuit (“Court”).

According to the Court “the crux of American Whitewater’s claim [was] that the Forest Service struck the wrong balance when it opened the Headwaters to floating partially but not entirely [by] maintaining some restrictions on floating in order to avoid conflicts with other recreational users.” American Whitewater argued that the Forest Service’s concern about potential conflicts was unsupported by the record and therefore arbitrary and capricious, and that the remaining restrictions violated the WSRA.

The Court first addressed American Whitewater’s argument that that no basis existed in the record for the Forest Service’s concern about potential conflicts among recreational users. The Forest Service relied on a history of user conflicts on the Headwaters prior to the original floating ban as well as evidence from the lower Chattooga and other rivers where floating has always been permitted. In the Court’s words, the Forest Service “assembled significant data pointing to the potential for future conflicts, counting cars to estimate usage, developing expected encounter estimates, and analyzing a wealth of public comments including many from current users who expressed a preference for solitude and an isolated experience.” American Whitewater argued that the Forest Service was required to allow floating on the Headwaters as a part of the study to identify actual conflicts between recreational users. The Court disagreed, holding that “[w]here the agency’s conclusion otherwise rests on a firm factual basis, nothing in the APA requires it to experiment with a practice before continuing preexisting policies.”

The Court next addressed American Whitewater’s argument that the remaining restrictions on the Chattooga violated section 1281 of the WSRA, “which requires the Forest Service to ‘protect and enhance the values which caused’ the Chattooga to be designated for preservation ‘without . . . limiting other uses that do not substantially interfere with public use and enjoyment of these values.’” American Whitewater argued that floating on the Chattooga was one of the values that led Congress to designate the Chattooga for protection under the WSRA; therefore, the Forest Service had to “protect and enhance” that value by lifting all floating restrictions on the Chattooga. In the alternative, American Whitewater argued that the Forest Service could not limit floating on the Chattooga because the Forest Service did not show that floating substantially interfered with any protected recreational use of the Headwaters. The Court rejected each of these claims in turn.

First, the Court noted that neither the 1971 Forest Service report that led to the Chattooga’s protective designation nor the Senate and House Reports accompanying this designation specifically mentioned floating in contrast with all other forms of recreational activities on the Chattooga. Rather, because these reports all made mention of a wide variety of recreational activities on the Chattooga, the Court declined to find Congress had intended to give special status to floating, let alone any one recreational use, when it designated the Chattooga under the WSRA. Accordingly, the Court rejected American Whitewater’s argument that the Forest Service had no choice but to lift all restrictions on floating on the Chattooga.

Second, not only did the Court agree with the district court’s assessment that the record supported a finding of substantial interference with other protected recreational uses of the Chattooga, the Court took the analysis one step further and found American Whitewater’s argument to be “flawed in its premise.” Under section 1281(a) there are only two categories of “uses” of designated rivers: (i) public uses of ORVs; and (ii) other uses “to be limited when they interfere substantially with public use and enjoyment of an ORV.” The Court stated that floating is more akin to hiking and other recreational activities and thus more accurately characterized as “a ‘public use’ of the recreational value, not an ‘other use’ subject to the substantial interference standard.”

The Court next addressed the Rust family’s claims against the Forest Service. The Rust family had sought a declaratory judgment designating as non-navigable the 1.7-mile stretch of the Headwaters running through their land. The effect of such a designation would make this stretch of water private property, which in turn would prohibit the Forest Service from taking any action that would provide public access to this stretch of water. However, because the Forest Service’s 2012 decision neither authorized floating on the Rusts’ property nor covered any portion of the Headwaters that concerned the Rust family’s property, the Court found that the Forest Service had not taken any action to exercise regulatory authority over the Rust’s property. Accordingly, the Court dismissed the Rust family’s request for declaratory judgment because it failed to present a justiciable controversy in the absence of such action.

The Court then addressed the Rust family’s claim that “the Forest Service violated NEPA by failing to analyze the risk that opening portions of the Headwaters to floating could lead to trespass on the Rust’s property.” The Rust family argued that floaters will illegally cross the Rust’s property on their way to the Chattooga. However, the Court noted that the Forest Service’s 2012 decision only authorized floating on portions of the river that are downstream from the Rust family’s property. Accordingly, the Court characterized this concern, and any associated environmental impact, as too speculative to require NEPA analysis.

Last, the Court quickly addressed whether the district court had erred in limiting the scope of ForestWatch’s intervention. On appeal, ForestWatch attempted to depart from its assigned role of defending the Forest Service’s remaining restrictions and instead challenge the Forest Service’s decision to permit any floating at all under NEPA and the WSRA. The Court declined to address these new arguments on appeal, and found that the only issue ForestWatch could properly raise on appeal was the district court’s decision to limit its scope of intervention. The parties disputed the proper standard of review, but the Court determined, and ForestWatch’s counsel admitted at oral argument, that a review of the district court’s decision to limit ForestWatch’s intervention ultimately hinged on whether the decision was fundamentally unfair. Because the district court preserved ForestWatch’s opportunity to raise its NEPA and WSRA claims in a pending lawsuit related to the matter, and carefully limited its decision to insulate ForestWatch’s claims against the Forest Service, the Court found no evidence of fundamental unfairness.

Accordingly, the Court dismissed all challenges brought against the Forest Service by American Whitewater, the Rust family, and ForestWatch, and held that the Forest Service’s WSR management and oversight plan for the Chattooga River was not arbitrary and capricious under the APA, that the Forest Service’s WSR management and oversight plan complied with the WSRA, and that the Forest Service’s analysis satisfied NEPA.


The title image features the East Fork of the Chatooga River and has been released to the public domain.

Weber v. N. Loup River Pub. Power & Irrigation Dist., 854 N.W.2d 263 (Neb. 2014) (holding that the district court properly granted the defendant’s motion for summary judgment because (i) the plaintiff’s failure to pay irrigation charges was a condition precedent to the defendant’s contractual duty to deliver water to the plaintiffs’ land; (ii) the defendant did not waive the condition precedent when it waived the irrigation fees for one newly contracted tract of land; (iii) the defendant did not anticipatorily breach the contracts because the plaintiffs had already materially breached the contract through nonpayment; and (iv) the defendant was not negligent in its delivery of the water to the plaintiffs because the plaintiffs’ prior breach of the contracts relieved the defendant of any preexisting duty).

North Loup River Public Power and Irrigation District (“North Loup”) manages an irrigation system with many diversion dams and canals, including the Taylor-Ord Canal (“Canal”), which originates at the Taylor Diversion Dam (“Dam”). William and Dixie Weber (“the Webers”) had eight contracts with North Loup to irrigate their farmland from the Canal. The contracts stated that North Loup would provide water during the irrigation season to the Webers’ land in exchange for $2.50 per acre. The money was to be paid by the first day of December the year preceding the irrigation season. The contracts also stated that North Loup would withhold delivery of the water if the Webers failed to pay within four months of that date.

In June of 2010, the North Loup River experienced an uncommon amount of rainfall and flooding. On June 11, 2010, the flood completely destroyed the Dam and severely damaged the Canal. North Loup determined that the Dam was “beyond repair” and decided to rebuild a permanent dam. The landowners with contracts for irrigation water received no water that year due to the damage.

The Webers’ bill for the 2010 irrigation season was due December 1, 2009. At the time of the flood in June 2010, the Webers still had not paid their bill. The Webers finally paid their bill on April 13, 2011, but they did so “under protest.” In December of 2011, the Webers filed a complaint against North Loup alleging that North Loup had breached its contracts with them and negligently failed to provide water during the 2010 irrigation season. North Loup denied the allegations and asserted that the Webers had failed to fulfill a condition precedent of the contracts when they failed to pay the 2010 irrigation charges until April 13, 2011. After an evidentiary hearing, the District Court for Loup County (“district court”) granted North Loup’s motion for summary judgment, concluding that the Webers breached a condition precedent, thereby relieving North Loup of its duty to deliver water. The Webers appealed directly to the Supreme Court of Nebraska (“Court”).

On appeal, the Webers claimed that the district court erred in granting summary judgment to North Loup because issues of material fact existed regarding the Webers’ obligation to make an advanced payment for the 2010 irrigation season. Accordingly, the Webers claimed, North Loup anticipatorily breached its contract. The Court clarified that the “meaning of an unambiguous contract is a question of law.”

The Court applied the same general rules regarding contracts to the Webers’ contract. In doing so, the Court first considered whether the Webers’ payment of irrigation charges was a condition precedent to North Loup’s contractual duty to deliver water. Holding that it was, the Court found a condition in the terms of the contract that stated, “[North Loup] shall withhold and stop the delivery of water to the landowner in the event a default of payments herein required occurs and such default continues for a period of four months following the due date.” The Webers did not deny that they failed to pay their bill when due on December 1, 2009. Further, the Webers admitted that their bill continued to be in default for much longer than four months after the due date. Therefore, the Court reasoned that North Loup’s duty to provide water “never came to fruition,” negating the possibility of breach.

The Court further held that North Loup did not waive the condition precedent. The Webers argued that North Loup never decided whether it would waive the landowners’ 2010 irrigation charges due to the flood. Finding that waiver of a condition precedent requires a clear, unequivocal, and decisive action, the Court held that North Loup did not waive the condition precedent to the Webers’ contract. Although North Loup waived a different landowner’s irrigation charges in the 2010 year, the Court found that North Loup did so because the contract was only formed two months prior to the flood. The Court concluded that North Loup’s isolated wavier of the other landowner’s irrigation fees did not waive the condition precedent in its contract with the Webers.

The Court next considered whether North Loup anticipatorily breached the contracts. The Webers argued that North Loup anticipatorily breached the contracts when it decided to build a new dam rather than a temporary one, without an assessment of damages two months before the irrigation season. The Court disagreed and held that North Loup did not anticipatorily breach the contracts. The Court reasoned that the Webers breached the contracts before North Loup’s alleged breach. Because payment of the 2010 irrigation fees was both the Webers’ duty to perform and a condition precedent to North Loup’s duty to provide water, North Loup could not anticipatorily breach the contracts when the Webers had already materially breached them. The Court emphasized that the term was material because the Webers’ payment was one of their only obligations under the contracts.

Finally, the Court found that North Loup did not act negligently by failing to deliver water to the Webers, even though non-delivery of the water might have been a statutory violation. Neb. Rev. Stat. section 46-263 makes it a misdemeanor for a person in charge “of a ditch or canal used for irrigation purposes . . . to prevent or interfere with the proper delivery of water to the person or persons having the right thereto.” North Loup argued that the statute was inapplicable because it applied to “persons” and not to “public entities.” The Court did not address whether the statute applied to “public entities,” instead finding that the statute did not require North Loup to deliver water to “those having no right to the water.” The Court held that the Webers’ nonpayment of the irrigation fees relieved North Loup of its duty to deliver water. Because North Loup had no duty to deliver the water at all, the Court found that North Loup’s failure to deliver the water was not negligent.

Accordingly, the Court affirmed the district court’s grant of North Loup’s motion for summary judgment.


The title image features the Loup River in Nebraska. This file has been released to the public domain.

San Luis & Delta-Mendota Water Auth. v. Locke, No. 12–15144, 2014 WL 7240003 (9th Cir. Dec. 22, 2014) (holding that (i) the district court abused its discretion by improperly admitting extra-record declarations and substituting its own analysis for the Agency’s opinion; (ii) National Marine Fisheries Service (“NMFS”) acted within its discretion by using a non-scaled data model to set river flows where it adequately explained its decision and used additional studies to validate its decision; (iii) NMFS did not act arbitrarily or capriciously when determining the State Water Project’s and the Central Valley Project’s (“the Projects”) continued operations were likely to jeopardize viability and essential habitat of species because it demonstrated sufficient research to support its conclusions; and (iv) NMFS’s various reasonable and prudent alternative (“RPA”) recommendations and requirements were not arbitrary or capricious).

Over twenty-five million agricultural and domestic users in California’s arid Central Valley rely on the government’s extraction of water from its rivers. However, this extraction dramatically alters the rivers’ natural states and threatens the viability of the species that depend on the water. To resolve this conflict, the U.S. Department of the Interior’s Bureau of Reclamation (“Reclamation”) ordered the NMFS to evaluate under the Endangered Species Act (“ESA”) how the Projects’ continuing water extraction would impact certain endangered Salmonid species in the rivers.

In a 2009 Biological Opinion (“BiOp”), NMFS found that continuing extraction threatens species and proposed a solution. In response to the proposed remedies, San Luis & Delta–Mendota Water Authority and Westlands Water District (“the Water Districts”) filed suit against the Department of Commerce, the National Oceanic and Atmospheric Administration and NMFS (collectively, “the Federal Defendants”), to challenge whether the 2009 BiOp was developed arbitrarily or capriciously. On summary judgment, the United States District Court for the Eastern District of California (“district court”) found that NMFS violated the Administrative Procedure Act’s (“APA”) arbitrary or capricious standard when developing the BiOp and granted in part and denied in part the claims of both parties. The United States Court of Appeals for the Ninth Circuit (“court”) reviewed this case on appeal.

On appeal, the Federal Defendants asked the court to overturn the components of the BiOp that the district court struck down, and the Water Districts asked the court to overturn the district court’s holdings that were favorable to the BiOp. Before reviewing the 2009 BiOp, the court resolved the initial question of whether the district court erred in its own record review by supplementing the administrative record with extra-record declarations. The court noted that in making its determinations, a district court may only admit extra-record evidence to further understand whether an agency complied with the APA’s arbitrary or capricious standard. However, the district court heavily relied on extra-record scientific opinion to evaluate and question the 2009 BiOp. The court found the district court violated the general rule limiting a court’s review of agency action to the administrative record. Specifically, the court reasoned that the district court erroneously substituted the extra-record declarations for NMFS’s own analysis.

The court next determined whether NMFS complied with the procedural requirements of the APA. Because the ESA does not have its own standard of judicial review, the court evaluated the BiOp under the APA’s deferential arbitrary and capricious standard wherein a court will sustain an agency’s actions if there is a rational connection between the facts and conclusions. In determining the best method to prevent endangered fish species from being caught in a negative flow resulting from pumping the rivers, NMFS used raw salvage data from fish salvage facilities to provide a reasonable and prudent alternative (“RPA”) in its BiOp. The Water Districts challenged the use of raw salvage data instead of data scaled to fish populations and the district court held that using raw salvage data went against the grain of traditional science. Referencing its decision in San Luis & Mendota Water Authority v. Jewell (“Delta Smelt”), where the consulting agency also used raw salvage data, the court held that NMFS’s choice to use raw salvage data was within its substantial discretion. In Delta Smelt, the court determined an agency has substantial discretion to choose whichever available scientific model it wants to use. The court noted that NMFS adequately explained why the loss data usefully assisted it in identifying whether and how fish loss relates to negative flow velocity. Also, NMFS did not base maximum negative flow prescriptions on raw data alone, using other studies to help decide the specific flow requirements imposed. Finally, similar to the Delta Smelt BiOp, the incidental take statement (“ITS”) in this case used population data to scale incidental take, and the RPA used that information to create its flow restrictions. For these reasons, the court held that NMFS acted within its discretion in using non-scaled data models to restrict flows.

Next, the court considered whether NMFS arbitrarily or capriciously determined that the Projects’ continuing activity on the river would jeopardize the viability and the essential habitat of the species. First, the district court determined that NMFS’s designation of the winter-run Chinook as a species at a “high risk” of extinction was unsupported by the record. The court held that NMFS’s explanation of how a 2007 study of the winter-run Chinook influenced its opinion was sufficient to satisfy the requirement that an agency consider all relevant factors and offer an explanation for its conclusions. Second, the district court held that NMFS did not consider all of the relevant factors when it determined the Projects jeopardized orca viability because it failed to address a 2009 Orca BiOp’s contrary finding. The court found that NMFS did in fact discuss the 2009 Orca BiOp and distinguished the two different outcomes as dealing with different time frames and yielding different results. This was sufficient to show that NMFS considered the 2009 Orca BiOp when developing the 2009 Salmonid BiOp. Third, the district court found that NMFS’s conclusions that the Projects’ deviations from CV steelhead preferred spawning water levels significantly reduced spawnable habitat were arbitrary and capricious. The district court stated that NMFS’s use of “maximum habitat” as a benchmark for spawnable area was not a goal of the ESA. However, the record showed that NMFS looked to several studies to determine the point at which the Projects’ restriction of flows on the river would appreciably reduce habitat. The court found that NMFS explained why the studies provided an adequate baseline for developing minimum flows in the river and thus satisfied its obligations under the ESA. Additionally, the record adequately cited studies supporting NMFS’s conclusion that the Projects’ operations negatively impacted spawning gravel quality and quantity. Accordingly, the court held that these findings were not arbitrary or capricious.

Next, the district court held that NMFS failed to articulate the connection between the Projects’ operations, invasive species, and harm to the endangered species. However, the 2009 BiOp found: (i) the Projects’ operations were degrading the environment in the interior delta, making it ill-suited to many native species; (ii) continued Projects operations would cause fish outmigration through the main channels of the delta to divert into intersecting channels that split off from the main rivers; and (iii) fish that are drawn through intersecting channels and into the inner Delta have a lower survival rate than fish that remain in the main delta. Noting that NMFS’s analysis was not perfect, the court held that evidence to support NMFS’s conclusions could be reasonably discerned and that its analysis was therefore not arbitrary or capricious.

Finally, the court determined whether the challenged RPA actions were arbitrary or capricious. The district court reversed and remanded several of the BiOp’s RPA actions because NMFS did not explain how each RPA action was essential to avoiding jeopardy or how each action complied with the ESA’s non-jeopardy factors. Specifically, the district court found that NMFS failed to explain how each RPA action could be implemented in a manner consistent with the intended purpose of the action, consistent with the scope of the Agency’s authority and jurisdiction, and in an economically and technologically feasible way. The court noted that the district court’s analysis was erroneous. In so concluding, the court relied on the holding in Delta Smelt, which explained that the ESA only requires that an agency impose RPAs that are “not likely to jeopardize” the species or its habitat, rather than those that are “essential to avoiding jeopardy.” Applying that standard here, the court found that NMFS was not required to meet all of the non-jeopardy factors but only to conclude that the proposed RPA would not further jeopardize the listed species.

The district court invalidated several RPA actions on the grounds that they were not supported by scientific evidence, were not economically or technologically feasible, or were made arbitrarily or capriciously. Finding that the record showed sufficient evidence or reasonable support for all of the actions, the court reversed all of the district court’s holdings. In so doing, the court reasoned that Action IV.2.1, requiring Reclamation and DWR to implement specific flows on the San Joaquin River to a higher rate to increase survival and abundance, was traceable to the record even if also maximally protective of fish. The court found that Actions IV.2.3 and IV.3, reducing exports from two pumping plants from January through June and November through December, respectively, to mitigate the adverse effects of the negative flows on the Salmonid fish species migrating during those time frames, were also supported by data cited in the record. It upheld Action IV.4.2, requiring the California Department of Water Resources to implement specific measures to reduce pre-salvage fish loss and improve salvage efficiency, because contrary to the district court’s analysis, the ESA did not require NMFS to cite record evidence showing economic and technological feasibility. The court further upheld Action III.1.2, requiring Reclamation to make cold water releases from the New Melones Reservoir to provide more suitable temperatures for the CV steelhead to spawn, as supported by the record. Here, the court noted that Action III.1.2’s exception for when the projected temperatures could not be achieved was sufficiently limited in application because Reclamation must satisfy several procedural requirements before NMFS would grant an exception. The court found that NMFS’s decision to recommend Action III.1.3, requiring Reclamation to operate releases from the East Side Division reservoir to achieve a minimum flow schedule to help sustain the CV steelhead habitat, was properly documented. It reasoned here that the district court erred by failing to defer to the Agency’s interpretation of a scientific study. Finally, the court upheld Action III.2.2, requiring Reclamation to collaboratively develop an operational strategy to achieve floodplain inundation flows that would help restore floodplains and CV steelhead habitat in the Stanislaus River, as within NMFS’s discretion. The court emphasized again that the Agency was not required to explain the Action’s feasibility.

Finally, the court affirmed the portions of the district court’s holdings that upheld the 2009 BiOp. In so doing, the court echoed its holding in Delta Smelt that an agency need not distinguish between discretionary and non-discretionary actions. In holding that the BiOp’s indirect effects on fish mortality were actually direct effects requiring no further elaboration, the court noted that the effects occurred concurrently with the Projects and were therefore direct effects. Finally, the court held that Reclamation was not independently liable under the ESA because the BiOp was legally sound.

The court reversed the district court’s holdings that invalidated the BiOp and affirmed the district court with regard to the issues on cross-appeal. Accordingly, the court remanded for entry of summary judgment in favor of the Federal Defendants.


The title image features an aerial view of the Sacramento Valley in northern Central Valley of California. This image is licensed under the Creative Commons Attribution Share-Alike 2.0 Generic license and the owner does not endorse this blog.