Petition for Writ of Certiorari — City of Santa Maria, California, et al., Petitioners v. San Luis Obispo Coastkeeper, et al.

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Opinion of the United States Court of Appeals for

the Ninth Circuit (September 23, 2022) .................. 1a

Order of the United States District Court for

the Central District of California Granting

Defendants’ Motions for Summary Judgment

(April 15, 2021) ....................................................... 51a

REHEARING ORDER

Order of the United States Court of Appeals for

the Ninth Circuit Denying Petition for

Rehearing En Banc (January 3, 2023) ................... 75a

RELEVANT STATUTORY PROVISIONS

Public Law 774........................................................ 77a

Endangered Species Act of 1973 ............................ 79a

OTHER DOCUMENTS

Santa Maria Groundwater Litigation, Amended

Judgment, Excerpts (April 23, 2014) ................... 179a

Secretary of the Interior, Report on the Santa

Maria Project, Excerpts (1953)............................. 195a

Permit 10271 (January 4, 1956)........................... 256a

License 10416 (August 4, 1971) ........................... 262a

App.1a

OPINION OF THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

(SEPTEMBER 23, 2022)

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

________________________

SAN LUIS OBISPO COASTKEEPER;

LOS PADRES FORESTWATCH,

Plaintiffs-Appellants,

v.

SANTA MARIA VALLEY WATER CONSERVATION

DISTRICT; SANTA MARIA VALLEY WATER

CONSERVATION DISTRICT BOARD OF

DIRECTORS; U.S. DEPARTMENT OF THE

INTERIOR; UNITED STATES BUREAU OF

RECLAMATION; BRENDA BURMAN,

Commissioner of the United States

Bureau of Reclamation,

Defendants-Appellees,

and

GOLDEN STATE WATER COMPANY;

CITY OF SANTA MARIA,

IntervenorDefendants-Appellees.

________________________

No. 21-55479

D.C. No. 2:19-cv-08696-AB-JPR

OPINION

App.2a

Appeal from the United States District Court

for the Central District of California

André Birotte, Jr., District Judge, Presiding

Argued and Submitted April 4, 2022

Pasadena, California

Filed September 23, 2022

Before: Mary M. SCHROEDER, Sidney R. THOMAS,

and Carlos T. BEA, Circuit Judges.

SUMMARY

Environmental Law

The panel reversed the district court’s summary

judgment in favor of the Bureau of Reclamation and

the Santa Maria Water District (collectively, the

“Agencies”) in an action brought by San Luis Obispo

Coastkeeper and Los Padres ForestWatch (“Plaintiffs”),

claiming that the Agencies’ operation of Twitchell

Dam interfered with Southern California Steelhead’s

reproductive migration, which constituted an unlawful

take in violation of the Endangered Species Act (“ESA”).

Under the ESA, Southern California Steelhead are

a “distinct population segment” (DPS) because they

are substantially reproductively isolated from other

populations and contribute significantly to ecological

and genetic diversity of the biological species. Twitchell

Dam, which was constructed in 1958 within the Santa

Maria River watershed, has contributed to the

endangerment of Southern California Steelhead

 This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

App.3a

populations. Public Law 774 (“PL 774”) authorized the

construction of the Twitchell Dam, pursuant to the

laws of California relating to water rights, and in

accordance with the recommendations of the Secretary

of the Interior (the “Secretary’s Report”). Statements

from the U.S. Fish and Wildlife Service and the

California Department of Fish and Game (“CFDG”)

are included in the Secretary’s Report; the Service

stated that the dam’s impact on the steelhead fishery

would be insignificant, and the CDFG recommended

against providing water released to preserve the

fishery. The Agencies are jointly responsible for the

dam’s operation. The Agencies moved for summary

judgment, arguing that PL 774 afforded the Agencies

no discretion to release any dam water to preserve

endangered Southern California Steelhead, and thus

they could not be liable for take under the ESA.

The panel held that under PL 774, the Agencies

had discretion to release water from Twitchell Dam to

avoid take of endangered Southern California Steelhead. The panel held that PL 774 expressly authorized

Twitchell Dam to be operated for “other purposes”

beyond the enumerated purposes. As a secondary

priority, PL 774 also required the Agencies operate

the dam substantially in accordance with the Secretary’s

Report. The statutory requirement of substantial

compliance—rather than strict compliance—with the

Secretary’s Report explicitly grants discretion to the

Agencies to adjust the dam’s flow rate.

The panel held that this interpretation is

buttressed by the principles of statutory construction.

Because PL 774 and the ESA can easily be read to

work in harmony, it was the panel’s duty to do so.

Here, there is no clear Congressional intent to

App.4a

preclude the dam from being operated to avoid take of

Southern California Steelhead. There is no implied

conflict between PL 774 and the ESA. Twitchell Dam

can readily be operated to provide modest releases at

certain times of the year and during certain water

years, while still satisfying the dam’s primary purpose

of conserving water for consumptive purposes. The

panel rejected the dissent’s reliance on the principle

of ejusdem generis to argue that the preservation of

endangered fish species was an impermissible “other

purpose” for the dam.

The panel remanded for further proceedings. The

panel did not reach the requirements under California

water law or any other issues urged by the parties.

The panel also did not reach the question of how the

Agencies might be required to exercise their discretion

in order to come into compliance with the requirements of the ESA. The panel left those issues for

consideration by the district court in the first instance.

Judge Bea dissented. As he read the Secretary’s

Report, Twitchell Dam was meant to conserve all the

water from the Cuyama River during the region’s

short rainy season for use during the long dry season

by the residents, farms, and industries in the Santa

Maria basin. All the water conserved by Twitchell

Dam was to be released into the Santa Maria aquifer

during the dry season. Release of water for the purpose

of maintaining fish below Twitchell Dam and adopting

other measures to perpetuate the run of steelhead trout

up the Santa Maria River were specifically considered

and rejected, with full knowledge by Congress that

steelhead trout would be prejudiced by the construction

and planned operation of Twitchell Dam.

App.5a

Judge Bea wrote that the majority’s textual

analysis of PL 774 fundamentally misreads PL 774

and the Secretary’s Report. By disregarding the

limiting principles that PL 774 and the Secretary’s

Report impose on the kinds of purposes for which

Twitchell Dam can be reported, the majority adopts

an interpretation of PL 774 that violates the nondelegation doctrine of constitutional law. As he read

PL 774, the meaning of the phrase “other purposes”

was constrained by the specific terms that precede it

pursuant to the canon of ejusdem generis. In addition,

the ESA’s subsequent, but general, prohibition of “any

person” from the “take” of a listed endangered species

does not override PL 774. He would affirm the district

court’s order granting summary judgment to the

Agencies and other defendants.

COUNSEL

Erica A. Maharg (argued) and Jason R. Flanders, Aqua

Terra Aeris Law Group, Oakland, California; Daniel

Cooper, Sycamore Law, San Francisco, California;

Margaret Hall and Linda Krop, Environmental Defense

Center, Santa Barbara, California; for PlaintiffsAppellants.

Kevin W. McArdle (argued), Robert J. Lundman, and

Bridget McNeil, Attorneys; Todd Kim, Assistant

Attorney General; Environment and Natural Resources

Division, United States Department of Justice, Washington, D.C.; Amy L. Aufdemberge, Attorney, United States

Department of the Interior, Washington, D.C.; for

Defendants-Appellees U.S. Department of the Interior,

United States Bureau of Reclamation, and Brenda

Burman.

App.6a

Mario A. Juarez (argued) and Richard E. Adam Jr., Law

Office of Juarez Adam & Farley, Santa Maria,

California, for Defendants-Appellees Santa Maria Valley

Water Conservation District and Santa Maria Valley

Water Conservation District Board of Directors.

Jeffrey Dunn (argued) and Daniel Richards, Best Best

& Krieger LLP, Irvine, California, California; for

Intervenor-Defendants-Appellees.

Tara Mueller (argued), Courtney Covington, Colleen

Flannery, Daniel Fuchs, and Jeffrey Reusch, Deputy

Attorneys General; Tracy L. Winsor, Supervising

Deputy Attorney; Robert W. Byrne, Senior Assistant

Attorney General; Rob Bonta, Attorney General;

Attorney General’s Office, Sacramento, California; for

Amicus Curiae State of California.

App.7a

OPINION

S.R. THOMAS, Circuit Judge:

We consider in this case whether the Bureau of

Reclamation and the Santa Maria Water District

(collectively, the “Agencies”) have discretion to manage

and operate Twitchell Dam for the purpose of preventing take of Southern California Steelhead. We

conclude that the relevant statute affords the Agencies

discretion to operate the dam for this purpose, and

reverse the judgment of this district court.

I

A

Congress enacted the Endangered Species Act of

1973 (“Endangered Species Act” or “ESA”), 16 U.S.C.

§§ 1531–1544, “to halt and reverse the trend toward

species extinction, whatever the cost.” Tenn. Valley

Auth. v. Hill, 437 U.S. 153, 184 (1978). The purpose

of enacting the ESA was “to require agencies to afford

first priority to the declared national policy of saving

endangered species.” Id. at 185.

Southern California Steelhead are an endangered

salmonid with a habitat between the Santa Maria

River and the border of Mexico. Since 1997, Southern

California Steelhead have been identified as being “in

danger of extinction throughout all or a significant

portion of its range.” 62 Fed. Reg. 43937-01 (Aug. 18,

1997); 16 U.S.C. § 1532(6). Under the ESA, Southern

California Steelhead are a “distinct population segment”

(DPS) because they are substantially reproductively

isolated from other populations and contribute significantly to the ecological or genetic diversity of the

App.8a

biological species. 62 Fed. Reg. 43937-01 (Aug. 18,

1997); 61 Fed. Reg. 4722-01 (Feb. 7, 1996). Southern

California Steelhead’s status as a DPS qualifies them

for protection as a separate species from other populations of Oncorhynchus mykiss along the West Coast

of North America. 62 Fed. Reg. 43937-01 (Aug. 18,

1997).

Historically, the Santa Maria River system provided a migratory habitat for Southern California

Steelhead. The Santa Maria River is formed by the

confluence of the Cuyama and Sisquoc Rivers, and

drains into the Pacific Ocean near Guadalupe in

northwestern Santa Barbara County. Although the

lower Santa Maria River remains dry most of the

time, during sporadic periods of high precipitation,

freshwater from the Cuyama and Sisquoc Rivers used

to run directly through the Santa Maria into the ocean.

Southern California Steelhead are an anadromous—

or ocean-going—species with adults spawning in

freshwater, and juveniles rearing in freshwater before

migrating to the ocean to grow, mature, and then

return to freshwater to reproduce as adults. Thus,

during high precipitation periods, Southern California

Steelhead were able to migrate to and from the ocean

to mature and replenish their population.

Twitchell Dam, which was constructed in 1958

within the Santa Maria River watershed, has contributed to the endangerment of Southern California

Steelhead populations. Twitchell is situated on the

Cuyama River about six miles upstream from its

convergence with the Sisquoc River. Following the

dam’s construction, Southern California Steelhead

rarely migrated to the ocean, even in the highest

precipitation years, because Twitchell Dam is presently

App.9a

operated to retain water during high precipitation

periods. The water is then released from behind the

dam during dry periods at a rate designed to maximize

percolation into the dry riverbed and recharge the

groundwater basin. Thus, almost all of the freshwater

flowing from the Cuyama and Sisquoc percolates into

the riverbed instead of reaching the lower Santa

Maria River. As a result, the Santa Maria River has

insufficient flow to sustain Southern California

Steelhead migration to the ocean, preventing them

from completing their reproductive cycle.

B

Public Law 774 (“PL 774”), the legislation

authorizing the construction of Twitchell Dam, is the

primary basis of contention between the parties. In

pertinent part, it provides:

[T]he Secretary of the Interior is hereby

authorized to construct the project for

irrigation and the conservation of water, flood

control, and for other purposes, on Santa

Maria River, California, pursuant to the laws

of California relating to water and water

rights, and, otherwise substantially in

accordance with the recommendations of

the Secretary of the Interior dated January

16, 1953 [hereinafter, the “Secretary’s Report”

or the “Report”]. . . .

Act of Sept. 3, 1954, Pub. L. No. 83-774, 68 Stat. 1190.

The Secretary’s Report includes detailed project

plans for the dam and reservoir, including a recommended flow rate for water releases from the dam. The

Report explains that the project’s primary purpose is to

App.10a

recharge the Santa Maria River Valley’s groundwater

aquifer and to eliminate the threat of extensive flood

damage. The report identifies examples of other

permissible uses, including municipal and industrial

uses, of the dam water. Statements from the U.S. Fish

and Wildlife Service (“FWS”) and the California

Department of Fish and Game (“CDFG”; now, the

California Department of Fish & Wildlife) are included

in the Report. The FWS stated that the dam’s impacts

on the steelhead fishery would be insignificant. The

CDFG recommended against providing water releases

to preserve the fishery.

The Bureau of Reclamation is responsible for

establishing the operational rules for Twitchell Dam.

The Santa Maria Water District handles the day-today operation of the dam, in accordance with the rules

set by the Bureau. The Agencies are jointly responsible

for the dam’s operation.

II

San Luis Obispo Coastkeeper and Los Padres

ForestWatch sued the Agencies, claiming that their

operation of Twitchell Dam interferes with Southern

California Steelhead’s reproductive migration, which

constitutes an unlawful take in violation of the ESA.

They sought declaratory relief and an injunction requiring properly timed water releases of appropriate

magnitude and duration to support Southern California

Steelhead reproduction.

The Agencies, along with various intervenors,

moved for summary judgment, arguing that PL 774

affords the Agencies no discretion to release any

amount of dam water to preserve endangered Southern

California Steelhead and, thus, that they could not be

App.11a

liable for take under the ESA. The district court

agreed and granted summary judgment.

We have jurisdiction over the district court’s entry

of final judgment pursuant to 28 U.S.C. § 1291, and we

review the district court’s summary judgment order de

novo. L. F. v. Lake Wash. Sch. Dist. #414, 947 F.3d

621, 625 (9th Cir. 2020).

III

Section 9 of the ESA makes it unlawful for all

persons, including federal and state agencies, to “take”

endangered species. 16 U.S.C. §§ 1532(13), 1538(a)

(1)(B). The term “take” is defined broadly to include

“kill” and “harm,” 16 U.S.C. § 1532(19), which in turn

includes significant habitat modification that results

in injury or death by “impairing essential behavioral

patterns,” 50 C.F.R. § 222.102. The current operation

of Twitchell Dam harms Southern California Steelhead

by impairing their ability to migrate and reproduce.

An ESA § 9 claim cannot succeed unless the

agency’s conduct is the proximate cause of the alleged

take. Babbitt v. Sweet Home Chapter of Cmtys. for a

Great Or., 515 U.S. 687, 696 n.9, 700 n.13 (1995). Because the parties assume that agency discretion is

required to establish proximate cause, we evaluate

whether, under PL 774, the Agencies have any discretion to release any amount of water from Twitchell

Dam to avoid take of endangered Southern California

Steelhead.1 We conclude that they do.

1 We do not decide whether, in order to be liable for take under

the ESA, an agency must have discretion to avoid take. See Dep’t

of Transp. v. Pub. Citizen, 541 U.S. 752, 770 (2004) (holding that,

under the National Environmental Policy Act, an agency cannot

App.12a

A

Generally, “[i]f the statutory language is clear,

that is the end of our inquiry.” A-1 Ambulance Serv.,

Inc. v. California, 202 F.3d 1238, 1244 (9th Cir. 2000).

PL 774 expressly authorizes Twitchell Dam to be

operated for “other purposes” in addition to the

enumerated purposes of “irrigation and the conservation of water, [and] flood control.” Act of Sept. 3,

1954, Pub. L. No. 83-774, 68 Stat. 1190. This expansive

language reflects a congressional intent to grant the

Agencies discretion to operate the dam for a variety of

purposes, including to accommodate changed circumstances such as the enactment of new statutes.

If Congress had intended to limit the dam’s

operations solely to the enumerated purposes, it knew

how to do so and would have used limiting rather than

broad language. See, e.g., WildEarth Guardians v.

U.S. Army Corps of Eng’rs, 947 F.3d 635, 639–40 (10th

Cir. 2020) (holding Army Corps of Engineers had no

discretion to release water to protect endangered

fish species because the authorizing legislation permitted the project to be operated “solely for flood

control except as otherwise required by the Rio Grande

Compact”). However, rather than limiting the dam’s

uses to an exhaustive list or to “solely” one purpose,

Congress expressly provided that the dam could be

used “for other purposes.”

As a secondary priority, PL 774 also requires that

the Agencies operate the dam “otherwise substantially

be considered the legal “cause” of an action that it has no statutory discretion to avoid); see also Nat’l Ass’n of Home Builders v.

Defenders of Wildlife, 551 U.S. 664, 667–68 (2007) (suggesting

that Public Citizen might not apply in the ESA context).

App.13a

in accordance with” the plans and recommendations

in the Secretary’s Report. Act of Sept. 3, 1954, Pub. L.

No. 83-774, 68 Stat. 1190. The Secretary’s Report

contains budgetary plans, technical specifications, and

a recommendation for a flow rate for water releases

from the dam. In order to avoid take of Southern

California Steelhead, Twitchell Dam’s flow rate would

need to deviate slightly from the recommended flow

rate at a few points throughout the year. It is entirely

consistent with the text of the statute for the Agencies

to diverge from the Secretary’s Recommendations.

The statutory requirement of substantial compliance

—rather than strict compliance—with the Report explicitly grants discretion to the Agencies to adjust the

dam’s flow rate. See In re Operation of Mo. River Sys.

Litig., 421 F.3d 618, 630–31 (8th Cir. 2005) (upholding

the Army Corps of Engineers’ decision to modify the

Missouri River’s water flow to comply with obligations

under the ESA because “the [authorizing legislation]

does not mandate a particular level of river flow or

length of navigation season” (emphasis added)).

In sum, PL 774 broadly authorizes the dam to be

operated for other purposes. Therefore, the Agencies

have discretion to operate Twitchell Dam to avoid

take of Southern California Steelhead.

B

This interpretation is buttressed by the principles

of statutory construction. “When confronted with two

Acts of Congress allegedly touching on the same topic,

this Court is not at ‘liberty to pick and choose among

congressional enactments’ and must instead strive ‘to

give effect to both.’” Epic Sys. Corp. v. Lewis, 138 S. Ct.

1612, 1624 (2018) (quoting Morton v. Mancari, 417

App.14a

U.S. 535, 551 (1974)). Because we can easily read PL

774 and the ESA to work in harmony, it is our duty to

do so.

Under basic principles of statutory construction,

“[a] party seeking to suggest that two statutes cannot

be harmonized, and that one displaces the other, bears

the heavy burden of showing ‘a clearly expressed congressional intention’ that such a result should follow.”

Id. (quoting Vimar Seguros y Reaseguros, S.A. v. M/V

Sky Reefer, 515 U.S. 528, 533 (1995)). Here, there is

no clear congressional intent to preclude the dam from

being operated to avoid take of Southern California

Steelhead. PL 774 explicitly authorizes the dam to be

used for other purposes. While the Secretary’s Report

identifies some secondary purposes for which the dam

may be operated, there is no language suggesting that

it provides an exhaustive list of permissible purposes.

Moreover, there is no implied conflict between PL 774

and the ESA. Twitchell Dam can readily be operated

to provide modest releases at certain times of the

year and during certain water years, while still

satisfying the dam’s primary purpose of conserving

water for consumptive uses.

The dissent contends that the Secretary’s Report

considered and rejected the conservation of endangered

steelhead as a permissible purpose. However, a close

reading belies this assertion. The CDFG provided a

comment, attached to the Secretary’s Report, stating

that it decided against requesting water releases from

the dam for the maintenance of steelhead fisheries.

But CDFG’s comment and all references to Southern

California Steelhead in the Secretary’s Report focus

on their value for recreational fishery—not on the

survival of the species. At the time the Report was

App.15a

drafted, Southern California Steelhead were not

identified as an endangered species. Thus, neither

Congress nor any of the agencies involved with

producing the Report considered or rejected the

possibility of operating the dam to protect them from

extinction.2

Our “duty to interpret Congress’s statutes as a

harmonious whole rather than at war with one

another” is reflected in a long line of environmental

cases. Epic Sys. Corp., 138 S. Ct. at 1619. For example, in Stand Up for California! v. U.S. Dep’t of the

Interior, 959 F.3d 1154 (9th Cir. 2020), this Court

reconciled two allegedly competing Congressional

directives to give effect to an environmental statute.

The court considered whether the Indian Gaming

Regulatory Act (“IGRA”) denies the Secretary of

Interior discretion to comply with obligations under

the National Environmental Policy Act (“NEPA”). Id.

at 1163. The Ninth Circuit determined that the

Secretary had the requisite discretion, reasoning that

the statute “does not by its terms preclude the Secretary from considering other federal law.” Id. at 1164.

Thus, “there is no ‘irreconcilable and fundamental

conflict’ between IGRA and NEPA,” and the court gave

effect to both statutes. Id. at 1166 (quoting Jamul

2 CDFG’s decision against requesting water releases was also

predicated on the expectation that Twitchell Dam would cause

“some losses to the steelhead fishery” but that “such losses will

not be of significant proportions.” In fact, the operation of Twitchell

Dam has significantly reduced migration opportunities on the

Santa Maria River for Southern California Steelhead populations,

which are now facing extinction. Indeed, the National Marine

Fisheries Service has placed the Santa Maria River population

in the “highest priority” category for recovery actions for the

Southern California Steelhead.

App.16a

Action Comm. v. Chaudhuri, 837 F.3d 958, 963 (9th

Cir. 2016)).

The Fifth Circuit has applied similar logic to avoid

conflicts between congressionally approved infrastructure projects and subsequent congressional actions.

Its reasoning is instructive. For example, Creppel v.

U.S. Army Corps of Engineers, 670 F.2d 564 (5th Cir.

1982), dealt with changes in a flood control project to

comply with new environmental legislation. Congress

had enacted the Clean Water Act during the middle of

the construction of a Louisiana flood control project

that was developed pursuant to the Flood Control Act

of 1936. Id. at 566–67. To comply with the newly

enacted statute, the Army Corps of Engineers issued

a directive modifying the remainder of the project’s

specifications to mitigate its environmental impact.

Id. at 568–71. Local landowners brought suit, claiming

that the modifications did not advance the project’s

dual purposes of (1) drainage and land reclamation

and (2) flood control. Id. at 570–71, 573.

The court held that the Corps reasonably determined that the purposes of the project could be

achieved with the modifications. Id. at 573–74. In

reconciling the project plans with the Clean Water Act,

the court explained that there had been a “profound

change in congressional environmental policy” in the

years the project had been underway. Id. at 571. The

court further opined that “[i]t imparts both stupidity

and impracticality to Congress to conclude that the

statute impliedly forbids any change in a project once

approved, and thus prevents the agency official from

providing for the unforeseen or the unforeseeable,

from accommodating newly discovered facts, or from

App.17a

adjusting for changes in physical or legal conditions.”

Id. at 572–73.

By contrast, only where two statutes are mutually

prohibitive does an irreconcilable conflict exist, such

that we may enforce one over the other. Tennessee

Valley Authority v. Hill, 437 U.S. 153 (1978), provides

an example of such a situation. Id. at 156. This case

involved a federal dam, which, if operated in any

capacity, would indisputably eradicate the snail darter,

an endangered species. Id. at 172. Congress enacted

the ESA after the dam had been authorized, received

appropriations, and its construction was virtually

complete. Id. at 157. Despite the fact that the dam’s

construction cost millions of dollars, the Court

prohibited its completion. Id. at 156, 194–95. The Court

reasoned, “The plain intent of Congress in enacting

this statute was to halt and reverse the trend toward

species extinction, whatever the cost. This is reflected

not only in the stated policies of the [ESA], but in

literally every section of the statute.” Id. 184. Allowing

the dam to be completed, and an endangered species

to be entirely eradicated, was irreconcilable with the

ESA. Id. at 193.

In the present case, there is no such irreconcilable

conflict between PL 774 and the ESA. PL 774 does not

by its express terms preclude the operators of Twitchell

Dam from providing water releases to preserve endangered fish species. See Stand Up for Cal.!, 959 F.3d at

1164. PL 774 can be read to allow the Agencies to

comply with their obligations under the ESA.

Therefore, there is no irreconcilable conflict between

PL 774 and the ESA. See id. at 1166; see also Tenn.

Valley Auth., 437 U.S. at 193. “Respect for Congress

as drafter” and “respect for the separation of powers”

App.18a

counsel this Court to give effect to both statutes. Epic

Sys. Corp., 138 S. Ct. at 1624.

C

The dissent relies heavily on the principle of

ejusdem generis to argue that the preservation of

endangered fish species is an impermissible “other

purpose” for the dam. According to the dissent, because

the phrase “other purposes” follows the phrases

“irrigation and the conservation of water, [and] flood

control,” the dam may only be operated for “human

use,” and preserving endangered species is not a human

use. This argument fails for several reasons.

First, Congress enacted the Endangered Species

Act in order to “to minimize the losses of genetic

variations” because “they are potential resources” for

human use. Tenn. Valley Auth., 437 U.S. at 178

(emphasis omitted). “Congress was concerned about the

unknown uses that endangered species might have”—

for instance, “potential cures for cancer or other

scourges, present or future.” Id. at 178–79. Thus, the

preservation of endangered species falls within the

scope of “human use” and is a permissible use even

within the dissent’s interpretation of the phrase.

Second, “[t]he rule of ejusdem generis . . . comes into

play only when there is some uncertainty as to the

meaning of a particular clause in a statute.” United

States v. Turkette, 452 U.S. 576, 581 (1981); see also

United States v. Tobeler, 311 F.3d 1201, 1206 (9th Cir.

2002). Here, the statute’s plain meaning is apparent.

The Agencies are granted discretion to operate the

dam for “other purposes” in addition to its primary

purposes. The Agencies’ discretion is constrained by

the requirement to comply with California water

App.19a

law and to substantially comply with the recommendations in the Secretary’s Report.3 We reject the dissent’s attempt to create ambiguity where the statute’s

text suggests none.

IV

Under the express terms of PL 774, the Agencies

have discretion to operate Twitchell Dam for other

purposes besides irrigation, conservation, and flood

control—including, potentially, adjusting water

discharges to support the migration and reproduction

of Southern California Steelhead. The judgment below

is reversed, and this case is remanded for further proceedings consistent with this opinion. We need not, and

do not, reach the requirements under California water

law or any other issues urged by the parties. We also

need not, and do not, reach the question of how the

Agencies might be required to exercise their discretion

in order to come into compliance with the requirements of the Endangered Species Act. We instead

3 The dissent mistakenly argues that this interpretation of PL

774 violates the non-delegation doctrine. The Supreme Court has

consistently upheld Congress’s ability to delegate power under

broad standards, recognizing that “in our increasingly complex

society, replete with ever changing and more technical problems,

Congress simply cannot do its job absent an ability to delegate

power under broad general directives.” Mistretta v. United

States, 488 U.S. 361, 372 (1989). For instance, the Court has

upheld various agencies’ discretion to enforce fair and

equitable commodities prices, to determine just and reasonable

utility rates, to regulate broadcast licenses as “public interest,

convenience, or necessity” require, and to establish mandatory

sentencing guidelines. Id. at 372–74 (collecting cases). In light of

the Supreme Court’s approval of these broad delegations of

authority, Congress clearly provided sufficient guidance to the

Agencies in PL 774.

App.20a

leave those issues for consideration by the district

court in the first instance.

REVERSED.

App.21a

BEA, Senior Circuit Judge, dissenting:

I respectfully dissent. In 1954, Congress authorized

the construction of a dam, now called the Twitchell

Dam (the “Dam”), on the Cuyama River

for irrigation and the conservation of water,

flood control, and for other purposes, . . .

pursuant to the laws of California relating to

water and water rights, and, otherwise

substantially in accordance with the recommendations of the Secretary of the Interior

dated January 16, 1953, entitled ‘Santa Maria

project, Southern Pacific Basin, California’

[the ‘Secretary’s Report’].”

Pub. L. No. 83-774, 68 Stat. 1190 (Sept. 3, 1954) (“PL

774”). The Secretary’s Report, H.D. 83-217 (1953),

which is specifically incorporated by reference into PL

774 by the very text of PL 774, was developed jointly

by the Bureau of Reclamation (“Reclamation”) and the

Army Corps of Engineers (“Army Corps”) and

describes the need for the Dam and its intended

operation.

As I read the Secretary’s Report, the Dam was

meant to conserve all the water from the Cuyama

River during the region’s short rainy season for use

during the long dry season by the residents, farms,

and industries in the Santa Maria Basin. All the

water conserved by the Dam was to be released into

the Santa Maria aquifer during the dry season. None

of it was to flow into the ocean. The Dam was also

meant to prevent floods and to serve the other purposes similar or incidental to irrigation, water

conservation, and flood control, described in the

Secretary’s Report. Release of water for the purpose of

App.22a

maintaining fish below the Dam and adopting other

measures to perpetuate the run of steelhead trout up the

Santa Maria River were specifically considered and

rejected, with full knowledge by Congress that the

steelhead trout would be prejudiced by the construction and planned operation of the Dam.

Plaintiffs, however, argue that approximately

1,500 acre-feet of conserved freshwater—or, about

four percent of the average volume of water stored

annually behind the Dam—should be released from

the Dam each year to spill into the ocean, to facilitate

the occasional migration of steelhead trout up the

Santa Maria River, instead of the water being conserved

for use by the Santa Maria Basin’s human community.1

Plaintiffs argue that such releases are permitted by

PL 774, even though the Secretary’s Report both

planned that the Dam would be operated to release

water at the “percolation rate of the channel downstream” so that the water would drain into underground storage, instead of reaching the ocean, to

secure the “maximum yield” of conserved water for the

Santa Maria Valley Basin’s human community, and

also expressly considered and rejected adopting

measures “in an attempt to perpetuate the steelhead

runs,” see H.D. 83-217 at 47, 54, 88, 111–112 (1953).

1 Plaintiffs’ complaint seeks “[a]n [i]njunction requiring [Defendant agencies] to modify operations, including modification of the

current flow regime at Twitchell Dam,” to benefit steelhead

trout. Plaintiffs’ complaint alleges that “[a]n order compelling

water releases of sufficient size and with appropriate timing to

provide flows for fish migration” would result in an “approximately four percent (4%) of the total volume of water retained in

the reservoir on an annual basis” being released from the Dam

for the fish.

App.23a

This is not the more common case in which a

federal agency claims that it has broader-than-recognized statutory authority to take a disputed action.2

Rather, here, the Defendant federal and local agencies

reject Plaintiffs’ proposed interpretation of PL 774.

They argue that their own discretion, as defined by PL

774, is not as broad as Plaintiffs contend it is, and that

they cannot release extra water from the Dam to

benefit steelhead trout.

In my view, the district court’s careful opinion

correctly concluded that “operating the Twitchell Dam

in the manner that the Plaintiffs propose is so foreign

to the original express purposes of [the] Twitchell

Dam as to be arbitrary and capricious.” The majority

opinion fails to offer persuasive reasons for reversing

the district court.3

2 Thus, this case differs from cases in which a federal agency

itself argues for a more expansive view of its own statutory discretion. E.g., W. Virginia v. Env’t Prot. Agency, 142 S. Ct. 2587

(2022); Alabama Ass’n of Realtors v. Dep’t of Health & Hum. Servs.,

141 S. Ct. 2485 (2021).

3 The majority opinion correctly declines to consider Plaintiffs’

arguments, raised for the first time on appeal, concerning the

requirements of California state law. Plaintiffs argue that

California law and caselaw require Defendant agencies to operate

the Dam “in a way that protects fish populations.” Defendants

argue that PL 774’s reference to “the laws of California relating

to water and water rights” merely required the United States to

acquire water rights from California pursuant to California law,

and Defendant agencies assert that they satisfied that requirement by securing a water permit and license from the California

State Water Resources Control Board. Because the merits of

these arguments “could . . . possibly be affected by deference to a

trial court’s factfinding or fact application, or a litigant’s further

development of the factual record,” the “purely legal” exception

to the ordinary rule that “an appellate court does not decide

App.24a

I.

I believe the proper outcome of this case turns on

interpreting PL 774 as written and as read alongside

the Secretary’s Report because PL 774 specifically

incorporates the Secretary’s Report by reference.

Accordingly, I describe the contents of the Secretary’s

Report in some detail.

The Secretary’s Report explained that “[t]he climate in the Santa Maria Basin is characterized by a

short rainy season in the winter and a long dry season

the remainder of the year.” H.D. 83-217 at 24–25

(1953). This created two problems for the Basin’s

residents. First, in especially wet winters, the Santa

Maria Valley experienced “serious flood[s],” which

became more dire as the population and economic value

of the valley was increasing, while the capacity of the

river basin to absorb flood waters was “decreasing

perceptibly with each year of runoff as a result of

sedimentation.” See id. at 25–26.

Second, water was becoming scarce. Irrigation was

introduced in the region in 1897 by the Union Sugar

Company of San Francisco for growing sugar beets.

Id. at 35. Gradually, a vegetable industry was established that practiced “intensive irrigated agriculture”

to grow vegetables, sugar beets, beans, alfalfa, and

dry-farmed crops, and large tracts of land were devoted

to growing flower and vegetable seed. Id. “The growth

of urban centers based on agricultural development

[was] fairly rapid since 1920.” Id. “Population expanded

issues that the trial court did not decide” does not apply here.

Planned Parenthood of Greater Washington & N. Idaho v. U.S.

Dep’t of Health & Hum. Servs., 946 F.3d 1100, 1110–11 (9th Cir.

2020).

App.25a

markedly . . . during World War II” because the

region hosted military training bases. Id. at 25. The

“permanent population. . . continued to expand during

the postwar period” as agriculture and industry grew,

such that population increased “from 7,260 in 1910

. . . to an estimated 25,800 in 1950.” Id. at 25, 29. By

the 1950s, the basin was host to a sugar beet refinery,

vegetable-packing plants, ice-manufacturing plants,

and several major oilfields. Id. at 36. In 1953, further

municipal and industrial growth was anticipated. Id.

at 29.

“[E]ssentially all the irrigated acreage, the major

industries, and all public and private water-supply

systems [in the Santa Maria Valley] depend upon

water from wells which tap the ground-water reservoir.”

Id. at 37; see also id. at 26 (“All water used in the basin

is pumped from the groundwater reserve.”). But, by

1951, “the total pumping draft [was] exceeding the

perennial yield of 50,000 acre-feet [of water] by about

14,000 acre-feet per year” and “[a]griculture ha[d]

reached its peak of development under [the thenpresent] conditions of water supply.” Id. at 26.

Reclamation estimated that “[c]ontinually increasing

pumping costs [would] impair the economic structure

of the entire area” and that “in the near future at least

8,000 acres of presently irrigated land”—about 17% of

all “irrigable land” in the Basin (see id. at 25)—“will

revert to dry farm status because of inadequate water

supply.” Id. at 26. To make matters worse, water use

before 1945 had “effected a permanent lowering of the

water table in the ground-water intake area” and further increased water use was expected to “rapidly

accelerate the historical decline of the ground-water

levels near the coast, and thereby increase the

App.26a

probability of salt-water intrusion within the next few

decades.” Id. at 38.

By the early 1950s, the State of California concluded that “the water-supply situation in the Santa

Maria Basin [was] critical,” “steps should be taken

immediately to relieve the water shortage,” and supplemental water was “urgently needed.” Id. at 13, 113.

Reclamation and the Army Corps, with recommendations from the California Department of Public Works

and several other state and federal agencies, developed a plan for water conservation and flood control

in the region centered around the construction and

operation of a dam on the Cuyama River. See id. at iii,

93. The “dual purpose” of the project was “to provide

adequate recharge of the now critically depleted ground

water reservoir underlying the Santa Maria Valley,

and to eliminate the threat of extensive flood damages

to cities, industries, and agriculture in of the valley.”

Id. at 23; see also id. at 13, 15, 47. Central to the project

was that “water held in the conservation-storage space

[behind the Dam] would be used to recharge the

underlying ground-water basin from which the entire

valley obtains its water supply.” Id. at 42. “The Board

of Supervisors of Santa Barbara County and the

Santa Maria Valley Water Conservation District . . . worked unremittingly for the development of

[the] project.” Id. at 25. The regional director of

Reclamation found that “[t]here [was] a unified desire

for [the project] throughout Santa Barbara County.”

Id. at 26.

The Report states that the project would achieve

its purposes by constructing a dam and reservoir that

would “detain Cuyama River flows during periods of

waste flow to the ocean, and subsequently release the

App.27a

conserved water at rates equal to or less than the

percolation capacity of the Santa Maria River Channel.”

Id. at 23; see also id. at 15, 47. Before construction of

the Dam, the strong flow of the Cuyama River during

the rainy season had been “waste[d] . . . to the ocean.”

See id. at 15, 23, 54. Reclamation found that a weaker

flow of water—specifically, a maximum rate of 300

second-feet—would seep through the porous Santa

Maria riverbed into the ground-water basin, where it

could be used for agricultural, residential, or industrial

purposes, rather than ever reaching the ocean. See id.

at 54, 88. Accordingly, Reclamation planned that

releases from the Dam would be coordinated with

flows from the Sisquoc River so that the combined flow

of the Cuyama and Sisquoc Rivers into the Santa

Maria River at Fugler Point would be approximately

300 second-feet because “[t]his is the estimated maximum rate at which water can percolate through the

pervious Santa Maria River channel into underground

storage” while avoiding any “waste to the ocean.” See

id. at 54, 88. In short, the “purpose of [the] project . . .

[was] to control the amount of water which flows into

the area in streams—holding it to the amount which

would fill but not overflow the underground natural

reservoir, so as to save water which [before the Dam

was constructed went] to the sea during overflow

periods.” 100 Cong. Rec. 15019 (1954) (statement of

Sen. Wayne Morse).

The Department of Interior consulted with the

United States Fish and Wildlife Service (“FWS”) and

the California Department of Fish and Game (“CDFG”)

in 1951 and 1952 to give those agencies an opportunity

to assess the project’s potential effects on fish and

wildlife and to determine “the possible damage to

App.28a

wildlife resources and . . . the means and measures that

should be adopted to prevent loss of and damage to

wildlife resources,” Pub. L. No. 79-732, § 2, 60 Stat.

1080–82, 1080 (August 14, 1946). See H.D. 83-217 at

iii, 13, 16, 100 (1953). It was plain to FWS that the Dam

would be operated to prevent water from the Cuyama

River from reaching the ocean except to avoid a flood:

[w]ith the project in operation and the flows

controlled, water of the Cuyama River seldom

will reach the ocean. The Santa Maria River

will be dependent for the most part on the

uncontrolled floods of the Sisquoc River for

flows large enough to reach the ocean, and

these will be for even shorter periods than

now prevail with both tributaries supplying

floodwater. Only during unusual floods will

Vaquero [now, Twitchell4] Reservoir spill

and permit the Cuyama River to supplement

the flows of the Sisquoc River. Id. at 89.

FWS considered the effect the project would have on

steelhead trout in detail (id. at 88–89) and concluded

that “Steelhead trout will not be able to enter the river

as often as without the project and, as a result, the

project will cause a fishery loss.” Id. at 92. FWS, nevertheless, did not recommend that additional water be

released to facilitate steelhead migration. See id.

CDFG also declined to request that additional

water be released to facilitate steelhead migration.

CDFG recognized that, unless more rapid releases

were necessary for flood-control, it was planned that

water would be released “at the rate of percolation of

4 Previously, the Twitchell Dam and Twitchell Reservoir were

called the Vaquero Dam and Vaquero Reservoir.

App.29a

the waters (estimated at 300 cubic feet per second or

600 acre-feet per day).” Id. at 111. CDFG stated that,

in considering its “recommend[ation] [for] water uses

for fish life,” the agency “tried to be cognizant” of the

fact that “the present and future demands for water

in the Santa Maria Valley considerably exceed the

present supply.” Id. at 110. The agency concluded:

[W]e do not feel justified in requesting extensive requirements in an attempt to perpetuate the steelhead runs. For example, we

will not require a fish ladder at Vaquero

[now, Twitchell] Dam for passage of migratory

fishes. Also, because of the great width and

pervious character of the riverbed below the

proposed dam, we do not believe that it would

be feasible to request a regular schedule of

water releases for maintenance of a stream

fishery. Id. at 112.5

5 In light of the fishery losses CDFG knew the Dam would cause,

CDFG sought “compensation for losses to recreational fishing

resulting from the project.” H.D. 83-217 at 112. To this end, on

March 9, 1951, CDFG suggested that the Army Corps “assume

the major responsibility in conducting” “studies” to (1) investigate “the feasibility” of using the reservoir behind the Dam “for

public fishing,” (2) investigate “the possibilities of creating . . . a

fishing lake . . . in the Guadalupe area for public warm-water

fishing,” (3) investigate “the creation of . . .impoundments for

fishing purposes, either on the Cuyama River tributaries above

Vaquero Dam or within the main impoundment itself,” and (4)

“[i]nvestigate the amount of water that would be required to provide access to the ocean for steelhead for sustaining the Sisquoc

River fishery only.” Id. CDFG recommended that the Army Corps

carry out the studies “with emphasis on the first three [options].”

Id. (emphasis added). By November 12, 1952, it appears that

CDFG decided to focus primarily on the first potential avenue for

compensatory fishing: CDFG specifically requested that a

App.30a

In sum, Congress authorized construction of a

dam that, in absence of an unusual flood, would

conserve all of the water from the Cuyama River and

then release it slowly enough that it would drain into

the Santa Maria Basin aquifer for human use instead

of ever reaching—or being “wasted” into—the ocean.6

State and federal agencies concerned with preserving

the stock of steelhead trout in the river system recognized that the Dam would prevent water from the

Cuyama River from reaching the ocean and that this

would result in loss of steelhead trout (i.e. “fishery

loss”), but nevertheless approved of the plan and

“recreational pool” of water be maintained behind the Dam to

allow for “fresh-water fishing . . . by people living in the

southwestern portion of the San Joaquin Valley.” Id. at 100, 111;

see also id. at 70. At some point, following a conference among

CDFG, the Army Corps, Reclamation, and the Board of

Supervisors of the Santa Maria Water Conservation District, the

Board of Supervisors passed a resolution favoring the establishment of a minimum pool water in the Dam’s reservoir to allow

for fishing, “so long as the maintenance of the pool would not

interfere with the primary purposes of the proposed project.” Id.

at 70 (emphasis added). However, FWS had previously concluded

that “[t]he absence of carryover storage in the reservoir, and the

complete lack of water in some years, prevent[ed] the

development of a reservoir fishery to help mitigate the steelhead

trout losses.” Id. at 92; see also id. at 89. Ultimately, the Secretary of the Interior determined that “no modification of the

proposed plan of development [was] necessary” and Congress authorized the Dam without a plan to maintain a minimum pool of

water behind it for fishing. See id. at 3; see also id. at 27

(explaining that “no recreational facilities are contemplated” because of “the intermittent nature of the streamflows and the plan

to store all water underground”).

6 The Secretary’s Report referred to water from the Cuyama

River that entered the ocean as “waste” multiple times. E.g., id.

at 15, 23, 54.

App.31a

declined to recommend that the Dam be operated to

release water to support steelhead migration. Congress

adopted the decisions of the federal and state agencies

that the Dam should be built and operated in a manner

that foreseeably would cause steelhead trout loss.

II.

The majority holds that Defendant agencies

have discretion, i.e., power, to operate Twitchell Dam

to facilitate the migration of steelhead trout by

releasing conserved freshwater from the Dam at a

rate greater than planned in the Secretary’s Report,

such that water would flow into the ocean, instead of

draining into the Santa Maria Basin aquifer. The

majority’s textual argument in support of this holding

relies on the phrases “other purposes” and “substantially in accordance with” in PL 774. The majority

argues that, because PL 774 authorized the Dam to be

built for “irrigation and the conservation of water,

flood control, and for other purposes,” instead of

prescribing that the Dam be built “solely” or

exclusively for the specific enumerated purposes, the

Defendant agencies have discretion to operate the Dam

to avoid take of steelhead trout. Op. 9–12 (emphasis

added). The majority also argues that, even if releasing

water into the ocean to benefit fish is inconsistent with

the planned operation of the Dam in the Secretary’s

Report, “it is entirely consistent with the text of the

statute for the Agencies to diverge from the Secretary’s

Recommendations” because PL 774 requires that the

Dam be operated (only) “substantially in accordance

with” the Secretary’s Report, rather than mandating

strict compliance with it. Op. 12–13 (emphasis added).

App.32a

For the reasons stated below, the majority’s argument offers little support for its holding. Moreover, the

majority’s textual analysis fundamentally misreads PL

774 and the Secretary’s Report. And, by disregarding

the limiting principles that PL 774 and the Secretary’s

Report impose on the kinds of purposes for which the

Dam can be operated, the majority adopts an interpretation of PL 774 that violates the non-delegation

doctrine of constitutional law.

A.

Although the majority’s textual argument offers

some reasons to conclude that Defendants have some

discretion over how they operate the Dam for the

purposes identified in PL 774 and the Secretary’s

Report, it offers no basis upon which to conclude that

PL 774 grants Defendants discretion to operate the

Dam in a manner that wastes water into the ocean for

the preservation of endangered steelhead trout.

Nowhere in the text of PL 774 or the Secretary’s

Report can the majority find any basis for concluding

that Congress expressed an intention that the Dam to

be operated to promote fish migration; indeed, the text

of the statute and the Secretary’s Report is all to the

contrary. Thus, considered as a matter of logic independently of the Secretary’s Report, the majority’s

interpretation of the phrases “other purposes” and

“substantially in accordance with” provides no more

reason to conclude that Defendants may operate the

Dam for any one conceivable purpose rather than

another, say for water skiing rather than trout

migration. However, considering the majority’s logic

in the context of the Secretary’s Report, the majority’s

argument provides less support for its conclusion that

the Dam can be operated to benefit steelhead trout

App.33a

than it does, for example, for the proposition that

Defendants can release extra water from the Dam to

facilitate water skiing on the Santa Maria River. The

Secretary’s Report considered and rejected adopting

measures “in an attempt to perpetuate the steelhead

runs,” H.D. 83-217 at 112 (1953). But it never

considered and rejected adopting measures to

promote water skiing below the Dam as an “other purpose.”

B.

Furthermore, as a matter of standard statutory

interpretation, the majority’s opinion clearly misreads

the law. To begin, PL 774 cannot be read to allow use

of the Dam’s waters for just any “other purpose,” such

as releasing extra water for water skiing or rapidly

emptying the reservoir to host a rock music festival on

its floor. The general phrase “other purposes” follows a

list of more specific words or phrases (“irrigation

and the conservation of water, [and] flood

control, . . . ”), and so should be interpreted according

to the ejusdem generis canon of statutory interpretation:

“[w]here general words follow specific words in a statutory enumeration, the general words are construed to

embrace only objects similar in nature to those objects

enumerated by the preceding specific words.” Cir. City

Stores, Inc. v. Adams, 532 U.S. 105, 114–15 (2001)

(citation omitted)); see also Antonin Scalia & Bryan A.

Garner, READING LAW: THE INTERPRETATION OF LEGAL

TEXTS 199–213 (2012).7 Thus, “other purposes” as

7 The majority opinion claims that the principle of ejusdem

generis “comes into play only when there is some uncertainty as

to the meaning of the particular clause in a statute.” Op. at 18

(citing United States v. Turkette, 452 U.S. 576, 581 (1981); United

App.34a

used in PL 774 identifies only “other purposes” that

are similar in nature to “irrigation,” “the

conservation of water,” and “flood control.” In my

view, it does violence to language to suggest that

releasing conserved freshwater into the ocean to

facilitate the migration of endangered fish is a purpose “similar in nature” to irrigation, water conservation, and flood control. Sending water out to the

ocean to benefit fish seems quite different from

sending it into underground storage for use by the

States v. Tobeler, 311 F.3d 1201, 1206 (9th Cir. 2002)). In Tobeler,

we explained that the rule of ejusdem generis is unhelpful “when

its application leads to a result undermining the statutory purpose.” 311 F.3d at 1201. As an example, we cited to Harrison v.

PPG Industries, which examined the phrase, “any other final

action,” found in the Clean Air Act. 446 U.S. 578, 588–89 (1980).

We explained that, because the phrase read “any other final

action”—as opposed to “other final action”—Harrison correctly

concluded that ejusdem generis did not apply. Id. Relying on

Harrison, we observed that the clause at issue in Tobeler

similarly referred to “any other self-propelled vehicles,” and thus

declined to apply the doctrine. Id. (cleaned up). Turkette similarly

relied on Harrison’s analysis. See Turkette, 452 U.S. at 581 (citing

Harrison, 446 U.S. at 588).

The majority’s reliance on this caselaw is misplaced. The statutory language at issue here does not say the Dam may be used

for “any other purposes.” The plain language itself suggests that

some purposes are permissible and others are not.

Otherwise, what principle, in the majority’s view, would explain

why “other purposes” includes spilling conserved freshwater into

the ocean to benefit fish, but does not include spilling

conserved freshwater into the ocean to benefit water-skiers? In

my view, ejusdem generis explains why neither purpose was

authorized by Congress. It is the majority’s reading, lacking any

such limiting principle, that creates uncertainty about the meaning

of the statute. Cf. Op. at 19.

App.35a

human community farming, working and residing in

the Santa Maria Basin.

“It is [also] a fundamental canon of statutory

construction that the words of a statute must be read

in their context.” W. Virginia, 142 S. Ct. at 2607

(citation omitted). Here, PL 774 authorized the

Secretary of the Interior “to construct the project for

irrigation and the conservation of water, flood control,

and for other purposes,” and also “otherwise substantially in accordance with [the Secretary’s Report].”8

The Secretary’s Report specifically identifies other purposes that the Dam was meant to serve that are

similar in nature or incidental to irrigation, water

conservation, and flood control. For example, the

Secretary’s Report explains that the Dam’s slow release

of the Cuyama River’s flow was meant to conserve

water such that it could be later pumped from the

Santa Maria aquifer and put to not only agricultural

but also residential and industrial use by the Basin’s

human residents. See, e.g., H.D. 83-217 at 15

(“Construction and operation of the [Dam] as herein

proposed would provide adequate recharge of the now

critically depleted groundwater reservoir underlying

the Santa Maria Valley, [and] provide municipal water

for anticipated municipal and industrial growth.”).

Raising the water-level in the aquifer would also

ward off the threat of sea water intrusion into the

8 The majority argues that PL 774’s requirement of “substantial

compliance” with the Secretary’s report means that “[i]t is entirely consistent with the text of the statute for the Agencies to

diverge from the Secretary’s Recommendations.” Op. at 12–15. Yet

the Secretary recommended no adjustment in the flow rate to

favor steelhead trout migration. Requiring such flow adjustment

flips “substantial compliance” into “not at all compliant.”

App.36a

lower end of the basin. See, e.g., id. at 26, 29. The

Secretary’s Report also identifies “silt detention” as

one of the “purposes of the project”; the Dam was

designed to include a silt storage pool with piping that

could be raised when necessary as silt accumulated

behind the dam. Id. at 87–88; see also id. at 26, 67–68,

106.

Because the Secretary’s Report identifies other

purposes of the Dam that are similar in nature or

incidental to the purposes explicitly identified in PL

774, our interpretation of PL 774’s reference to “other

purposes” should be constrained not only by the specific terms preceding “other purposes,” but also by the

Secretary’s Report. But nowhere does the Secretary’s

Report countenance operating the Dam to facilitate

the migration of steelhead trout. Quite the opposite:

the Secretary’s Report specifically considered and

rejected the notion that the project should include

measures “in an attempt to perpetuate the steelhead

runs.” Id. at 112.

C.

Plaintiffs’ proposal to send conserved freshwater

into the ocean to benefit steelhead trout does not “substantially” accord with the Secretary’s Report; it is

specifically in disaccord with the Report. An action

cannot substantially accord with a plan when the

action both undermines the objectives specifically

identified in the plan and, also, was considered and

specifically rejected in the plan; that, again, would do

violence to language. Here, Plaintiffs’ proposed

operation of the Dam impedes the statutory goals of

“irrigation and the conservation of water” and was

App.37a

explicitly considered and rejected by the Secretary’s

Report.

First, the Secretary’s Report makes clear that one

of the primary purposes of the Dam was to ensure

that—unless necessary to prevent a cataclysmic flood—

all the water from the Cuyama River would be

directed towards the Santa Maria aquifer instead of

being “wasted” into the ocean, as the district court correctly found. The Secretary’s Report stated that

“[w]ater held in the conservation-storage space would

be used to recharge the underlying ground-water basin

from which the entire valley obtains its water supply.”

Id. at 42; see also id. at 47 (“The operation of this

reservoir for conservation storage would be such that

water impounded in the silt and conservation space

would be detained for later release in underground

storage at the percolation rate of the channel

downstream.” (emphasis added)). The Dam’s water

conservation purpose was not merely to “add sufficient

water to the ground-water reservoir to overcome the

[then] present average annual overdraft[9] of 14,000

acre-feet” of water; the project was designed also to

“provide for anticipated municipal and industrial

growth, and provide enough additional yield to

irrigate 3,000 acres of presently nonirrigated land for

50 years.” Id. at 29. In advocating for a large water

conservation storage behind the Dam, the California

Division of Water Resources was adamant that “[i]n

view of the possibility of overdraft in the Santa Maria

Valley, substantially in excess of that estimated in the

report, it is imperative that every effort should be

9 That is, more water was being drawn from the ground-water

reservoir each year than percolated into it.

App.38a

made to develop and preserve as much conservation

storage as practicable within the Santa Maria watershed.” Id. at 106. The Secretary’s Report predicted

that “overdraft of the groundwater basin” could result

“even under project conditions,” and identified additional modifications of the natural environment that,

at that time, could provide supplemental water to the

Santa Maria Basin aquifer. Id. at 43, 55. In short, the

plan was to maximize the conservation of water for

the residents, farms, and business of the Santa Maria

Valley because every gallon of conserved water was

valuable. This is why the Secretary’s Report referred

to water from the Cuyama River that entered the

ocean instead of the Santa Maria aquifer as “waste,”

e.g., id. at 15, 23, 54, and planned for a coordinated

release of 300 cubic feet per second because “[t]his

is the estimated maximize rate at which water can

percolate through the pervious Santa Maria River

channel into underground storage” to secure the

“maximize yield from [the project’s] reservoir

operation.” See id. at 47, 54, 88 (emphasis added); see

also City of Santa Maria v. Adam, 149 Cal. Rptr. 3d

491, 503–04 (Ct. App. 2012) (The Twitchell Dam was

designed “to save floodwater during the rainy season

and release it in such manner and at such times as will

provide maximum contributions to the ground water

supplies.” (emphasis added and internal quotation

marks omitted)); 100 Cong. Rec. 14249 (1954) (statement of Sen. Wayne Morse) (The “intention of the

project” was to “make possible the retention of waste

water during flood periods, and the later release of

this water during the dry season . . . at a rate not

greater than the percolation capacity, thus providing

for the entire stored flow to seep into the underground

storage basin (i.e. [the] ground-water reservoir). Thus,

App.39a

floodwater which would otherwise be wasted will be

conserved and placed in the underground storage

basin.” (emphasis added)).10 Spilling conserved

freshwater into the ocean to benefit fish plainly

frustrates the goal of conserving all of the Cuyama

River’s water for irrigation and other uses by the

human community residing below the Dam.

Second, the Secretary’s Report made plain that

the project’s water conservation goals would come at

some costs, including the cost of fewer steelhead trout.

It was known by California and the federal government that building the Twitchell Dam and operating

it to maximize the water conserved for the human

residents downriver would ensure that “water of the

Cuyama River [would] seldom . . . reach the ocean”

such that that “Steelhead trout [would] not be able to

enter the river as often as without the project and, as

a result, the project [would] cause a fishery loss.” H.D.

83-217 at 89, 92; see also id. at 70. But California and

federal wildlife agencies, aware of this consequence,

but also “cognizant” of the fact that “the [then]

present and future demands for water in the Santa

Maria Valley considerably exceed[ed] the present

supply,” approved the water conservation plan without

10 Even in recent times, water rights in the region remain

fiercely contested because of the limited supply of water. See, e.g.,

Adam, 149 Cal. Rptr. 3d at 491 (considering a challenge to a

stipulated judgment regarding water rights in the Santa Maria

Basin). The California Court of Appeal explained that recent “concern[ ] about future [water] supplies” arose in part because

“[u]rban population was growing,” “[o]verpumping had continued

in the Niporno area where there is no reclamation project,” and

“the Twitchell Reservoir has been accumulating silt, which

reduces its capacity and threatens to diminish its ability to

augment natural recharge.” Id. at 504.

App.40a

requesting measures “in an attempt to perpetuate the

steelhead runs.” See id. at 92, 110, 112. In

authorizing the Dam “substantially in accordance”

with the Secretary’s Report, Congress adopted a plan

to change the natural habitat of the Santa Maria Basin

for the benefit of its human residents, at the expense

of the steelhead.11

11 The majority opinion faults the Secretary’s Report for “focus[ing]

on” the steelhead trout’s “value for recreational fishery—not on

the survival of the species.” Op. 14–15. The majority opinion also

argues that the Secretary’s Report underestimated the extent to

which steelhead populations would decrease because it

anticipated only “some losses to the steelhead fishery” and

explained that “losses will not be of significant proportions.” Op.

15 n.2 (emphasis added).

First, both of these considerations are irrelevant. Congress’s

policy choice to conserve the Cuyama River’s water for human

use may not have been informed by the value of the existence of

steelhead trout above and beyond the fish’s value for recreation

and as food, or by perfect predictions about the Dam’s effect on

fish. But even so, Congress made a judgment about the best uses

of freshwater conserved from the Cuyama River based on its view

of the facts and we lack authority in this case to second-guess

Congress’s policy decision.

Second, importantly, FWS expressly acknowledged the potential

for a decline in population: It knew that the planned operation of

the Dam would cause “steelhead trout losses.” H.D. 83-217 at 92

(1953); see also id. at 89. And FWS explained that the “fishery

values” of the Santa Maria River and its tributaries were already

“small” before construction of the dam, in part because during

the twenty-one years from 1930 through 1950 (inclusive) it is

likely that steelhead trout entered the river during only six years

(and that during two of those years “only a few trout entered

during the limited period of breakthrough to the ocean”) because

the river had weak flow, water use had already lowered the water

table of the Santa Maria Basin, and “the possibility exists that

the sugar-refinery waste liquors, the domestic sewage, and the

oilfield wastes which are discharged into the river would have

App.41a

deterred part, and perhaps all, of the [fish] run.” See id. at 88–

89; see also id. at 69.

To be sure, while CDFG was seeking to secure a “recreational

pool” behind the Dam in compensation for the expected loss of

opportunities for fishing caused by the Dam, CDFG criticized

FWS for minimizing or disregarding the “fisheries value of the

river system on the basis of a lack of a steelhead run since 1942.”

Id. at 110. CDFG argued that 1942 was not the proper

benchmark because, since the region had been experiencing dry

conditions for some years, the runoff record from that date would

not justify the Dam’s stated flood-control benefits, and CDFG

instead examined the previous 100 years of hydrological records.

See id. at 110–111. But FWS appears to have relied on records

from at least 1930, not 1942. See id. at 88–89. And, even on the

basis of the 100-year hydrological records CDFG examined, CDFG

could conclude only that “at least the possibility that

anadromous fishes would enter the system exists.” Id. at 111.

CDFG did not address FWS’s concerns about pollution or the

already lowered water table. See id.

Further record evidence supports FWS’s conclusion that the

fishery loss would be small. The Santa Maria River is at the

northernmost edge of the natural habitat of the Southern

California Steelhead distinct population segment, which extends

south to the Mexican border, and was not among the “four

watersheds [that] historically exhibit[ed] the largest annual

anadromous runs” of O. Mykiss (viz. the Santa Ynez, Ventura,

and Santa Clara Rivers, and Malibu Creek, which are all south

of the Santa Maria River). The Stillwater Sciences report in the

record concluded that, “[b]ased on 21 years of gaged flows on the

mainstem Santa Maria River prior to operation of Twitchell

Dam, conditions suitable for fish passage through the critical

reach have never been common.” Although Plaintiffs’ experts

assert that “Steelhead stocks were in good condition” before the

Dam was constructed, they appear to rely on substantially the

same historical records that FWS studied, with the addition of

“report[s]” from a “roam[ing]” reverend in 1879 and more recent

studies reporting “small numbers of adult Steelhead, in the

Sisquoc River watershed.”

The majority opinion pays little heed to this thoughtful analysis,

App.42a

I cannot agree that a proposal to send approximately four percent of a community’s primary source of

fresh water into the ocean, on purpose, to benefit

steelhead trout, substantially accords with a plan that

was designed to conserve all the water from that

source and to waste none of it into the ocean,

especially when it was plain to all who read the

Secretary’s Report that the water conservation plan

would result in the loss of some steelhead trout.

D.

As I read PL 774, the meaning of the phrase

“other purposes” is constrained by the specific terms

that precede it pursuant to the canon of ejusdem

generis. The Secretary’s Report further limits my

interpretation of “other purposes” by describing the

planned operation of the Dam, explaining the needs of

the human community for flood control, water

conservation and irrigation purposes, below it that the

Dam was meant to serve, and accepting certain

costs—including the loss of steelhead trout— that the

Dam’s operation would incur.

By contrast, the majority’s textual analysis fails

to constrain its interpretation of “other purposes” by

any limiting principle whatsoever. The majority appears

to argue that Congress delegated authority to Defendant agencies to operate the Dam for “other purposes”

including assisting the migration of steelhead trout,

even though operating the Dam to benefit the steelhead

which took into consideration the information available at the

time. Instead, the majority wishes to recast congressional

priorities of the 1950’s with the information and sensibilities now

available to us in 2022. Of course, this can be done. But it should

be done by Congress, not by a court.

App.43a

would lessen the achievement of the purpose of water

conservation, which was explicitly identified in PL

774, and also was considered and specifically rejected

in the Secretary’s Report. On this interpretation, the

phrase “other purposes” apparently means any purpose

whatsoever, and that the phrase “substantially in

accordance with [the Secretary’s Report]” apparently

means that Defendant agencies may operate the Dam

in a manner that the Secretary’s Report has considered

and rejected.12 But can we say, with a straight face,

that Congress intended to grant the Defendant agencies

unfettered discretion as to the purposes and rates of

Dam water releases? If so, where does it say so in the

statute or the Secretary’s Report?

The majority’s reading obliterates from the text

any “intelligible principle” that would make PL 774 a

permissible delegation of authority from Congress to

the Defendant agencies13 concerning the Dam’s

operation by articulating “the general policy [Defendant

agencies] must pursue and the boundaries of [their]

authority.” Gundy v. United States, 139 S. Ct. 2116,

2123, 2129 (2019); United States v. Melgar-Diaz, 2

F.4th 1263, 1267 (9th Cir. 2021); see also A.L.A.

12 Thus, the majority’s unelaborated assertion that its interpretation of “other purposes” is constrained by the statute’s requirement

to comply substantially with the Secretary’s Report is implausible.

Op. at 18–19. The majority is likewise ill-advised to claim that

its interpretation is constrained by the requirement in PL 774 to

comply with “California water law,” id., a gloss on a phrase in PL

774 that the majority correctly declines to interpret. See supra

footnote 3.

13 As I have noted, Defendant federal and local agencies expressly

deny that Congress has delegated to them discretion to operate

the Dam as Plaintiffs propose. See infra Section IV.

App.44a

Schechter Poultry Corp. v. United States, 295 U.S. 495,

537–42 (1935); Panama Ref. Co. v. Ryan, 293 U.S. 388,

420–30 (1935); Jarkesy v. Sec. & Exch. Comm’n, 34

F.4th 446, 462 (5th Cir. 2022) (“If the intelligible

principle standard means anything, it must mean

that a total absence of guidance is impermissible

under the Constitution.”). What, on the majority’s

interpretation, is the “intelligible principle” from PL

774 and the Secretary’s Report that informs us how the

Defendant agencies’ discretion to operate the Dam is

limited, if at all? What language in the law, if not the

specific terms preceding “other purposes” and the

expressed intention of the Secretary’s Report, defines

“the general policy” that the Dam operators must follow

and the “boundaries of [their] authority”? Alas, the

majority opinion does not tell us.

But “where an otherwise acceptable construction

of a statute would raise serious constitutional problems,

the Court will construe the statute to avoid such problems unless such construction is plainly contrary to

the intent of Congress.” Edward J. DeBartolo Corp. v.

Fla. Gulf Coast Bldg. & Const. Trades Council, 485

U.S. 568, 575 (1988). Thus, the “cardinal principle” of

constitutional avoidance, id., also demonstrates that

the majority opinion misreads the law. See Indus.

Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448

U.S. 607, 646 (1980) (“A construction of [a] statute

that avoids” a “‘sweeping delegation of legislative

power’ that . . . might be unconstitutional under [the

non-delegation doctrine] . . . should certainly be

favored.” (citation omitted)); Reynolds v. United States,

565 U.S. 432, 450 (2012) (Scalia, J., dissenting) (arguing that one reason in favor of a construction of a

statute is that it avoids “sailing close to the wind with

App.45a

regard to the principle that legislative powers are

nondelegable”).

III.

The majority opinion also relies on the notion

that, in considering whether PL 774 grants Defendants

discretion to operate the Dam to preserve the steelhead,

the court has a “duty” to read PL 774 (passed in 1954)

and the Endangered Species Act (“ESA”) (passed in

1973) “as a harmonious whole rather than [as

statutes] at war with one another.” Op. 13–17 (citation

omitted). The majority opinion appears to reason that

because PL 774 evidences (notwithstanding its

adoption of the Secretary’s Report) “no clear congressional intent to preclude the dam from being operated

to avoid take of Southern California Steelhead,” and

because the ESA prohibits any person from “take” of

steelhead trout, the court has a “duty” to read PL 774

to permit Defendant agencies to release water into the

ocean to facilitate the migration of steelhead trout to

avoid any conflict with the ESA’s prohibition of “take.”

Op. at 14.

However, as the majority opinion correctly observes, the parties agree that if Defendants lack discretion under PL 774 to release water into the ocean

to benefit steelhead trout, then Defendants are not the

proximate cause of any “take” under the ESA. Op. 11;

see also Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752,

770 (2004) (If an agency “has no ability to prevent a

certain effect due to its limited statutory authority

over the relevant actions, the agency cannot be

considered a legally relevant ‘cause’ of the effect.”);

Nat. Res. Def. Council v. Norton, 236 F. Supp. 3d 1198,

1239 (E.D. Cal. 2017) (applying Public Citizen to an

App.46a

ESA § 9 claim and finding it inappropriate “to impose

Section 9 liability on a government agency for take

caused by an action over which it has no control”).

This means that, whether PL 774 grants or denies

Defendants discretion to release water into the ocean

for the fish, this case presents us with no apparent

inconsistency between federal laws to “harmonize”:

either Defendants have discretion under PL 774 to

operate the Dam to avoid “take” under the ESA, or they

lack such discretion under PL 774 and therefore do not

“take” under the ESA.14

14 The majority opinion discusses Stand Up for California! v.

U.S. Dep’t of the Interior, 959 F.3d 1154 (9th Cir. 2020), and

Creppel v. United States Army 7 Corps of Engineers, 670 F.2d 564

(5th Cir. 1982). Neither case concerned any of the federal

statutes at issue in this case. Stand Up turned on the particular

language of a provision of the Indian Gaming Regulatory Act.

Creppel concerned whether the Army Corps’ decision to modify a

flood control project was arbitrary and capricious. The project

was originally designed for two purposes: drainage or land

reclamation, and flood control. After the passage of the Clean Water

Act, which granted the Administrator of the Environmental Protection Agency authority to prohibit the issuance of a permit that

was required to complete the project as planned, the Army Corps

decided to abandon building a pumping station for drainage and

land reclamation.

The Fifth Circuit explained, “[e]ven when a project’s purpose is

authorized by Congress”—unlike here, the project in Crepple did

not itself require Congressional approval, 670 F.2d at 572 n.12—

“the executive officer charged with responsibility for the project

may modify its purpose unless this action is so foreign to the original purpose as to be arbitrary or capricious,” but “[a]ny change

must . . . serve the original purpose of the project” and “must not

disregard or seek to evade the substantive statutory requirements.” Id. at 57–73. While reversing the district court’s grant

of summary judgment in favor of the Army Corps on other

grounds, the Fifth Circuit held that the Army Corps’ revision of

App.47a

For the reasons stated in detail above, I also

disagree with the majority opinion’s premise that PL

774 does not clearly preclude Defendant agencies from

releasing conserved freshwater into the ocean to

benefit steelhead. By incorporating the Secretary’s

Report into PL 774, Congress adopted a plan that

considered and specifically rejected adopting measures

in the water conservation and flood control project

that would “attempt to perpetuate the steelhead

runs,” H.D. 83-217 at 112 (1953).

PL 774 thus addresses the specific question raised

in this case: whether the Dam may be operated in an

attempt to perpetuate the steelhead runs. The ESA’s

subsequent, but general, prohibition of “any person”

from the “take” of a listed endangered species does not

override PL 774. See Morton v. Mancari, 417 U.S. 535,

550–51 (1974) (“Where there is no clear intention

otherwise, a specific statute will not be controlled or

the plan was not arbitrary and capricious because the statute

that authorized funding for the project permitted the Secretary

of the Army to complete “small projects for flood control and

related purposes not specifically authorized by Congress,” 33

U.S.C. § 701s, and the Army Corps concluded that the revised

project would still achieve the flood control purpose. 670 F.2d at

573–74.

Crepple does not support the majority opinion’s holding. In

Crepple, the revised project would still achieve the purpose

identified in the authorizing statute, and a purpose not identified

in that statute would be (at least, partially) abandoned. But,

here, Plaintiffs seek to require Defendants to operate the Dam

for a new purpose, which is not only not identified in the

authorizing statute, but which also counters one of the purposes

that was identified in the authorizing statute: conserving the

Cuyama River’s water for identified uses by the residents of the

Santa Maria Basin, notwithstanding that such conservation

would deleteriously affect steelhead trout.

App.48a

nullified by a general one, regardless of the priority of

enactment.”); Radzanower v. Touche Ross & Co., 426

U.S. 148, 153 (1976) (same); California Trout, Inc. v.

FERC, 313 F.3d 1131, 1137 (9th Cir. 2002) (rejecting

the argument that two statutes must be

“harmonized”: a “general statute having broad application” did not partially repeal by implication a

“specific provision applying to a specific situation”);

see also Swinomish Indian Tribal Cmty. v. BNSF Ry.

Co., 951 F.3d 1142, 1156 (9th Cir. 2020) (“An implied

repeal will only be found where provisions in two

statutes are in irreconcilable conflict, or where the

latter Act covers the whole subject of the earlier one

and is clearly intended as a substitute.” (citation

omitted)). For the reasons stated above, the two

statutes are consistent. The clear text, and thus clear

expressed Congressional intent, of PL 774 should

determine the outcome in this case.

IV.

Plaintiffs seek to force Defendants to spill

freshwater from a community’s limited, primary water

source into the ocean to benefit steelhead trout. The

Defendant agencies, including the U.S. Department of

the Interior and the Santa Maria Valley Water

Conservation District, reject Plaintiffs’ reading of the

law and argue that PL 774 unambiguously requires

the Dam to be operated to maximize the percolation of

water conserved from the Cuyama River into the

Santa Maria groundwater basin, notwithstanding the

foreseen and accepted harm this intended operation

would cause the steelhead trout.15 As I read the law,

15 In September 2020, an Area Manager of Reclamation issued

a ten-page, single-spaced memorandum that interprets PL 774

App.49a

the Defendant agencies (and the district court) are

correct: operating the Dam in the manner Plaintiffs

propose is flatly inconsistent with Congress’s stated

intention in PL 774 and the Secretary’s Report.

It may be that today our political community is

more concerned with the welfare of endangered species,

and the effect of such welfare on the human species,

than was Congress in 1954. But even if our society has

changed by adopting new values and an understanding of the natural world less centered on certain human

needs, and especially if such new perspectives bring

into disfavor the expressed aims of old laws, our commitment to the separation of powers must not falter.

Congress has the authority to revise the specific and

clear policy choice it made in enacting PL 774: that

the Cuyama River’s water should be conserved for

human agricultural, water conservation, and

as prohibiting Reclamation from modifying the operations of the

Dam to adopt the purpose of fishery releases. Reclamation sits

within the U.S. Department of Interior, which was charged with

implementing PL 774 and which also supervises in part the

administration of the relevant provisions of the ESA, see 16

U.S.C. § 1532(15). The district court found it “unnecessary to

[defer] formally” to the memorandum’s interpretation of PL 774

under the doctrines of either Chevron v. Natural Resources

Defense Council, 467 U.S. 837 (1984), or Skidmore v. Swift &

Company, 323 U.S. 134 (1944), because after considering “the

entire record” the district court “f[ound] no significant support

for Plaintiffs’ interpretation of the statute.” On appeal, the federal Defendants assert that the panel need not decide whether

the memorandum is entitled to Chevron deference because Congress’s expressed intent can be ascertained using traditional

tools of statutory construction. I quite agree. But if the phrase

“other purposes” creates an ambiguity as to which “purposes” the

freshwater can be applied, Chevron deference would require

assent to the Agencies position so as to require affirmance of the

district court judgment.

App.50a

industrial use, even at the loss of some steelhead

trout.16 This court does not have that authority—by

design. See W. Virginia, 142 S. Ct. at 2617 (Gorsuch,

J., concurring) (“[B]y vesting the lawmaking power in

the people’s elected representatives, the Constitution

sought to ensure . . . that all power [w]ould be derived

from the people, . . . that those [e]ntrusted with it

should be kept in dependence on the people[,] . . . that

those who make our laws would better reflect the

diversity of the people they represent . . . and have . . .

an intimate sympathy with, the people.” (internal quotation marks and citations omitted)). I would have

affirmed the district court’s order granting summary

judgment to Defendants.

16 Again, the majority opinion correctly declines to consider

Plaintiffs’ state law arguments, raised for the first time on appeal.

Accordingly, we express no opinion about whether California

state, regional, or local governments have any authority to

influence the operation of the Dam, were such entities to determine that the value of conserving water for the human residents

of the Santa Maria River Basin should be balanced against the

value of facilitating the migration of steelhead trout up the Santa

Maria River.

App.51a

ORDER OF THE UNITED STATES DISTRICT

COURT FOR THE CENTRAL DISTRICT OF

CALIFORNIA GRANTING DEFENDANTS’

MOTIONS FOR SUMMARY JUDGMENT

(APRIL 15, 2021)

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

________________________

SAN LUIS OBISPO COASTKEEPER

and LOS PADRES FORESTWATCH,

Plaintiffs,

v.

SANTA MARIA VALLEY WATER

CONSERVATION DISTRICT, et al.,

Defendants.

________________________

Case No. CV-19-08696 (AB (LPRx)

Before: Hon. André BIROTTE, JR.,

United States District Court Judge.

ORDER GRANTING DEFENDANTS’

MOTIONS FOR SUMMARY JUDGMENT

[Dkt. Nos. 83, 84]

Before the Court are Motions for Summary Judgment (“Motions,” Dkt. Nos. 83, 84) filed by the Santa

Maria Valley Water Conservation District and its Board

of Directors (“District”), and by the United States

App.52a

Department of Interior (“DOI”), the United States

Bureau of Reclamation (“Bureau”), and the Bureau’s

Commissioner Brenda Burman (“Burman”) in her

official capacity (the “Federal Defendants”) (all collectively, “Defendants”). Defendant-intervenors Golden

State Water Company (“GSWC”) and City of Santa

Maria (“Santa Maria”) (“Intervenors”) filed a Joinder

(Dkt. No. 86) in the Motions. Plaintiffs San Luis Obispo

Waterkeeper and Los Padres Forestwatch (“Plaintiffs”)

filed a consolidated Opposition (Dkt. No. 87) to both

Motions and the Defendants filed Replies (Dkt. Nos. 96,

94). The Court heard oral argument on January 29,

2021. The Motions are GRANTED.

I.

Background

A. Plaintiffs’ Complaint

This Order assumes familiarity with the factual

and legal background of this case, which the Court

previously set forth in its Order Denying Motions to

Dismiss (“MTD Order,” Dkt. No. 70).

In brief, in this action under the Endangered

Species Act (“ESA”), 16 U.S.C. §§ 1531, et seq., Plaintiffs

allege that the manner in which the Defendants

manage and operate the Twitchell Dam results in the

unlawful take of Southern California Steelhead trout,

an ESA-listed endangered species. See Compl. ¶¶ 1, 6.

The Twitchell Dam is situated on the Cuyama River

about 6 miles upstream from the confluence of the

Cuyama and Siquoc Rivers, which is where the Santa

Maria River begins. Id.

Plaintiffs contend that the Bureau of Reclamation’s

Standard Operating Procedures (“SOP”) for Twitchell

Dam limits the timing and volume of releases from the

App.53a

Dam to result in “maximum percolation into the

ground-water basins and prevent river flows from

reaching the Pacific Ocean.” Id. ¶¶ 39, 40, 63. The

Bureau’s SOP “prohibits releases from Twitchell Dam

that would result in combined instream flows exceeding

300 cubic feet per second at Fugler Point,” id. ¶¶ 61,

140, which is at the confluence of the Cuyama and

Siquoc Rivers. As a result of this constraint on releases

from the Dam, the downstream flows in the Santa

Maria River are insufficient to connect the upper

reaches of the river system to the ocean as needed to

establish a pathway for migratory fish passage. Id.

¶ 141. This reduces the opportunities for Steelhead

migration between the Pacific Ocean and their spawning habitat in the Sisquoc River, resulting in a decline

in Steelhead from decreased spawning opportunities,

the inability of smolts to migrate downstream to the

ocean, and the entrapment of individual fish in channels. Id. ¶¶ 15, 112-117, 124, 142-147.

Plaintiffs seek, among other things, an Order

requiring the Defendants to “modify operations,

including modification of the current flow regime at

Twitchell Dam, to come into compliance with ESA

Section 9, 16 U.S.C. § 1538 . . . ” Compl. Prayer ¶¶ 5,

6. Such an order would compel the Defendants to

release from Twitchell Dam, at key times during the

wet season, additional water to maintain combined

flows in the Santa Maria River system sufficient to

provide for fish migration. Id. ¶¶ 131, 150, p. 30

(Prayer). These additional releases would result in

combined flows exceeding the SOP’s maximum limit

of 300 cubic feet per second at Fugler Point.

App.54a

B. Procedural Background

The Court previously denied motions to dismiss

for lack of standing and failure to state a claim, among

other grounds. Defendants had argued that Plaintiffs

lacked standing because, among other things, they

could not show either traceability or redressability because the Defendants lacked the discretion to adjust

Twitchell Dam’s release regime as Plaintiffs sought.

Rather, Defendants’ discretion to operate the Dam

was constrained by the purposes enumerated in the

Congressional legislation that authorized it, and the

adjustment Plaintiffs seek is inconsistent with those

purposes.

In denying the Motion, the Court analyzed Public

Law 774—the 1954 legislation that authorized Twitchell Dam—and some of its legislative history in the

light of applicable law. Public Law 774 (“PL 774,”

Juarez Decl. Ex. E) authorized construction of Twitchell

Dam “for irrigation and the conservation of water,

flood control, and for other purposes.” The parties

focused on whether the releases Plaintiffs seek is

authorized by the “other purposes” language. The

Court found that PL 774’s “other purposes” language

“vested the Bureau with some authority to operate the

Dam for purposes other than those specifically enumerated in Public Law 774, and at this stage, the

Court cannot find that the other purpose Plaintiffs

propose is so contrary to the enumerated purposes

that it is impermissible.” MTD Order 11:19-12:1. But

the Court stressed that its determination was at the

motion to dismiss stage where “general factual allegations of injury resulting from the defendant’s conduct

may suffice.” Lujan v. Defenders of Wildlife, 504 U.S.

555, 561 (1992). The Court also noted that the impact

App.55a

of the Santa Maria Judgment adjudicating the Twitchell Yield was unclear, and that certain potentially

germane contractual obligations and complex issues

of California water law were (understandably) not

fully briefed. Thus, even though the standing question

turned on the interpretation of a statute—a pure

question of law—the Court decided that “Defendants’

numerous difficult challenges to Plaintiffs’ claims . . .

must be resolved on a more fully developed legal and

evidentiary record.” MTD Order 23:22-24.1

A year later, the parties have presented a more

fully-developed record and more focused briefing on

the key issue: does Public Law 774 vest the Defendants

with discretion to operate Twitchell Dam such that

they may adjust Twitchell Dam’s release regime to

provide the additional releases that Plaintiffs seek

under the ESA? Having carefully considered the record

presented and the applicable case law, as discussed

below, the Court concludes that PL 774 does not vest

Defendants with the authority to operate the Dam as

Plaintiffs seek.

C. Other Preliminary Matters

Defendants initially addressed the issue of their

discretion to adjust Twitchell Dam’s release regime as

Plaintiffs seek as a question of standing—that is,

whether the alleged harm is traceable to them, or

redressable by them. They now frame the issue of their

discretion as whether they can be held liable for

1 For the reasons stated in the Federal Defendants’ Reply, the

Court rejects Plaintiffs’ argument that the law of the case

doctrine requires the Court to resolve these questions the same

way now as it did in the MTD Order.

App.56a

actions over which they have no discretion. But

whether framed as an issue of standing or of liability,

the underlying legal question is the same one of statutory construction. And because the answer is a

matter of statutory construction, the Court will not set

forth a statement of undisputed facts as it usually

does in resolving a motion for summary judgment but

instead will simply construe the statute in light of the

record presented.

Also, although the Defendants have different

roles2 relative to the operation of the Dam, it is not

necessary to address them separately given the Court’s

construction of the statute herein. Therefore, the

Court will generally refer to the Defendants collectively.

After the Court’s MTD Order, the Bureau reviewed

the statutory language and compiled the relevant

legislative history of PL 774, analyzed the extent of its

authority over Twitchell Dam, and produced the

Twitchell Memorandum (“Twitchell Memo,” 2nd

Jackson Decl. (Dkt. No. 84-4), Ex. F). Therein, the

2 As explained in the MTD Order, the DOI oversees the Bureau;

the Bureau owns Twitchell Dam and has a right to use water

diverted from Twitchell Dam; and the District maintains and

operates Twitchell Dam and has the right to all water that

becomes available from operation of the Dam. See also Compl.

¶¶ 28, 48, 51, 52, 53. The Bureau issues Standard Operating Procedures (“SOP”) that govern operation of the Dam, including the

release regime. The District must operate the Dam in accordance

with the SOP. Although it was not a conclusive determination,

the MTD Order found that the Complaint sufficiently pled that

all Defendants were responsible for the alleged take. However,

because the Court finds that PL 774 simply does not permit the

Dam to be operated for the purposes Plaintiffs seek, there is no

need to distinguish among the Defendants.

App.57a

Bureau interprets PL 774 as not authorizing it to provide the water releases for the benefit of Steelhead that

Plaintiffs seek. The Federal Defendants ask the Court

to give this interpretation deference under Chevron v.

Natural Resources Defense Council, 467 U.S. 837

(1984) (“Chevron deference”), or, failing that, to give it

some deference under Skidmore v. Swift & Co., 323

U.S. 134 (1944) (“Skidmore deference”); see U.S. v.

Mead, 533 U.S. 218, 234 (under Skidmore, “an

agency’s interpretation may merit some deference

whatever its form, given the ‘specialized experience

and broader investigations and information’ available

to the agency” that is “proportional to its ‘power to

persuade’”). Plaintiffs oppose according the Twitchell

Memo any deference. The Court has reviewed the

Twitchell Memo and finds it persuasive. Nevertheless,

the Court finds it unnecessary to formally accord it

either level of deference because the Court has

considered the entire record before it and finds no

significant support for Plaintiffs’ interpretation of the

statute.

Plaintiffs’ papers cite the previously-filed Declaration of Derek Booth (Dkt. No. 37-5) and the Joint

Declaration of Peter Moyle, Ph.D., and Scott Cooper,

Ph.D. (Dkt. No. 37-6). These expert reports analyze

the impact of the operations of Twitchell Dam on the

Steelhead population in the Santa Maria River system.

The District filed objections to these declarations. However, these materials are not relevant to the Court’s

resolution of the Motion, so the Court did not consider

them and need not rule on the objections.

Plaintiffs’ Response to the Defendants’ Statements

of Undisputed Facts include a number of objections to

how the respective Defendant characterized the

App.58a

underlying evidence. However, because the Court is

relying on the underlying evidence itself and not the

Defendant’s characterizations thereof, these objections

are moot.

Finally, the Defendants ask the Court to take

judicial notice (“RJN,” Dkt. Nos. 84-14, 83-3) of the

following: extensive legislative history materials

relating to Public Law 774 (2nd Jackson Decl. Exs. AE, Juarez Decl. (Dkt. No. 83-3) Exs. A-D, F); Public

Law 774 (Juarez Decl. Ex. E); the Twitchell Memo

(2nd Jackson Decl. Ex. F); sections of the Standard

Operating Procedures for Twitchell Dam (2nd Jackson

Decl. Ex. G); and state water license No. 19416 and

the Contract between the United States and the Santa

Barbara County Water Agency Providing for the

Construction of the Santa Maria Project. (First Jackson

Decl. (Dkt. No. 38-3, pp. 7-18) Exs. C, D.) The District

further seeks notice of a map of its boundaries; the

March 13, 1957 Grant deed relating to the Santa

Maria Project; the Bureau’s June 2018 Release Procedure Page; portions of the U.S. Army Corps of

Engineers’ Reservoir Regulation Manual for FloodControl Storage at Twitchell Dam and Reservoir

(“USACE Manual”); the December 23, 1974 Permit

10271; and the June 30, 2005 Stipulation and the

January 23, 2008 Judgment filed in the matter if

Santa Maria Valley Water Conservation District v. City

of Santa Maria, and Related Cross-Actions in the

Superior Court of California, County of Santa Clara,

lead case No. CV770214. (Juarez Decl. Exs. H, I, K-O).

The Court previously took notice of some of these

materials. All of these materials are judicially noticeable pursuant to Fed. Civ. P. 201, so the Court takes

judicial notice of them.

App.59a

II. Legal Standard

A motion for summary judgment must be granted

when “the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there

is no genuine issue as to any material fact and that

the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247–48 (1986). An issue of fact is

“genuine” only if there is sufficient evidence for a

reasonable fact finder to find for the non-moving party.

Anderson, 477 U.S. at 248– 49. A fact is “material”

if it may affect the outcome of the case. Id. at 248. The

moving party bears the initial burden of identifying

the elements of the claim or defense and evidence that

it believes demonstrates the absence of an issue of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986). Where the nonmoving party will have the

burden of proof at trial, the movant can prevail merely

by pointing out that there is an absence of evidence to

support the nonmoving party’s case. Id. The nonmoving party then “must set forth specific facts

showing that there is a genuine issue for trial.”

Anderson, 477 U.S. at 248.

“Where the record taken as a whole could not lead

a rational trier of fact to find for the nonmoving party,

there is no ‘genuine issue for trial.’” Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986). The Court must draw all reasonable

inferences in the nonmoving party’s favor. In re Oracle

Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)

(citing Anderson, 477 U.S. at 255). Nevertheless,

inferences are not drawn out of thin air, and it is the

nonmoving party’s obligation to produce a factual

predicate from which the inference may be drawn.

App.60a

Richards v. Nielsen Freight Lines, 602 F.Supp. 1224,

1244–45 (E.D. Cal. 1985), aff’d, 810 F.2d 898 (9th Cir.

1987). “[M]ere disagreement or the bald assertion that

a genuine issue of material fact exists” does not

preclude summary judgment. Harper v. Wallingford,

877 F.2d 728, 731 (9th Cir. 1989).

III. Discussion

The purpose of the Endangered Species Act is “to

provide a means whereby the ecosystems upon which

endangered species and threatened species depend

may be conserved, [and] to provide a program for the

conservation of endangered species and threatened

species.” 16 U.S.C. § 1531(b). To help achieve this

purpose the ESA authorizes citizen suits “to enjoin

any person . . . who is alleged to be in violation of any

provision of this chapter or regulation issued under

the authority thereof. . . . ” 16 U.S.C. § 1540(g)(1)(A);

see also Ctr. For Biological Diversity v. Marina Point

Dev. Co., 566 F.3d 794, 804 (9th Cir. 2009) (“The ESA

allows a citizen suit for the purpose of obtaining

injunctive relief only.”).

Plaintiffs’ claims arise under Section 9 of the

ESA. Section 9 makes it illegal for any person to “take”

an endangered species. 16 U.S.C. § 1547(a)(1)(B).

‘“[T]ake’ means to harass, harm, pursue, hunt, shoot,

wound, kill, trap, capture, or collect, or to attempt to

engage in any such conduct.” Id. § 1532(19). “Harm”

means an act that actually kills or injures fish or

wildlife and includes “significant habitat modification

or degradation which actually kills or injures fish or

wildlife by significantly impairing essential behavioral

patterns, including, breeding, spawning, rearing,

migrating, feeding or sheltering.” 50 C.F.R. § 222.102.

App.61a

Plaintiffs allege that the District and the Federal

Defendants commit unauthorized take of endangered

Steelhead by the way they regulate and execute

releases from the Twitchell Dam: the release limitations

modify Steelhead habitat by reducing surface flows in

the Santa Maria River, and as a result, during migration

times, the River has insufficient flow to sustain

Steelhead migration between the Pacific Ocean and

their Sisquoc River spawning grounds, or to provide

passage for Steelhead smelts to migrate from the

spawning grounds to the ocean. This takes Steelhead

within the meaning of the ESA because it harms them

by impairing behavioral patterns including breeding,

spawning, rearing, and migrating, and because it kills

or injures individual fish who get stranded in low

water during migration. See e.g. Compl. ¶¶ 111-115.

Defendants contend that they cannot be liable for take

under § 9 because they operate Twitchell Dam in

accordance with Congressional authorization (as they

have since the Dam was completed), and, relatedly,

that they cannot modify their operation of the Dam as

Plaintiffs seek because that modification is inconsistent with the Congressionally-mandated purposes of

the Project.3

A. Defendants Cannot be Held Liable Under

ESA § 9 Because they Have No Discretion

To Modify Twitchell Dam Releases in the

Manner Plaintiffs Seek, and They are Not

the Proximate Cause of the Alleged Take.

“Congress has placed limitations on permissible

uses of project water and has established priorities

3 Defendants moved for summary judgment on other grounds as

well, but the Court will not address them.

App.62a

among uses since the very inception of federal

reclamation law,” and “[t]hese directives are binding

on the Secretary and on those seeking to obtain project

water.” Jicarilla Apache Tribe v. United States, 657

F.2d 1126, 1139–40 (10th Cir. 1981). Thus, unless the

water use that Plaintiffs seek here is consistent with

the purposes Congress set forth in PL 774, then

Defendants cannot provide water for that purpose.

Furthermore, an ESA § 9 claim cannot succeed

unless the defendant’s act is the proximate cause of

the alleged take. Babbitt v. Sweet Home Chapter of

Cmtys. for a Great Or., 515 U.S. 687, 696 n.9, 700 n.13

(1995). Correspondingly, if the agency “has no ability

to prevent a certain effect due to its limited statutory authority over the relevant actions, the agency

cannot be considered a legally relevant ‘cause’ of the

effect.” Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752,

767-70 (2004); accord Nat. Res. Def. Council v. Norton,

236 F. Supp. 3d 1198, 1239 (E.D. Cal. 2017) (applying

Public Citizen to the question of whether a nondiscretionary action can give rise to an ESA § 9 claim, and

finding it inappropriate “to impose Section 9 liability

on a government agency for take caused by an action

over which it has no control”). Thus, if PL 774 does not

give Defendants discretion to operate Twitchell Dam

as Plaintiffs seek to avoid take, then Defendants are

not a proximate cause of the alleged take and Defendants cannot be liable under ESA § 9.

Thus, the Court must determine whether PL 774

vests Defendants with the discretion to adjust water

releases from Twitchell Dam as Plaintiffs seek.

App.63a

1. Public Law 774 and Its Legislative

History

Defendants filed extensive legislative history

materials for PL 774, along with PL 774 itself. Relevant

excerpts from this history are presented in the Defendants’ Statements of Undisputed Facts. See SUFs (Dkt.

Nos. 84-2, 83-2), District’s Reply SUF (Dkt. No. 93).

Plaintiffs’ Response (Dkt. No. 88) to these SUFs does

not create any genuine issue of material fact. But,

instead of citing the SUFs the Court will quote this

legislative history material directly. However, because the material is repetitive and lengthy, the Court

will quote only representative portions of it.

The language of the statute, the Report referenced

therein, the supporting documentation, and legislative

history are all relevant to resolving this question.

For example, in Jicarilla Apache Tribe, the issue was

whether Congress authorized the use of reclaimed

water for recreational purposes when it authorized a

water storage project “for the purposes of, among

others, . . . ” 657 F.2d at 1139 (emphasis added). The

Tenth Circuit noted that the authorization left “the

recognized purposes open-ended by inclusion of the

phrase ‘among others.’” Id. The Circuit considered the

statute, the report referenced in the statute, reports

issued by the Bureau of Reclamation, and other “background materials” to interpret Congress’s authorization of the project “for the purposes of, among

others, . . . ” 657 F.2d at 1139-1145. (emphasis added).

Accordingly, this Court will rely on comparable materials to interpret the phrase “other purposes” in PL

774.

App.64a

Twitchell Dam4 was authorized by Congress in

1954 when it adopted PL 774. PL 774 “authorized [the

Secretary of the Interior] to construct the project for

irrigation and the conservation of water, flood

control, and for other purposes . . . substantially in

accordance with the recommendations of the Secretary

of the Interior dated January 16, 1952, entitled ‘Santa

Maria project, Southern Pacific Basin, California’

[‘Report’] . . . ” Public Law 774 (Juarez Decl. Ex. E).

PL 774 also provides that “in view of the special circumstances of the Santa Maria project [“Project”],”

certain laws requiring a contract for repayment are

not applicable “so long as the water utilized on project

lands is acquired by pumping from the underground

reservoir.” Id.

The Secretary of the Interior’s Report in turn

references the water conservation, irrigation, and

flood control purposes of the Project throughout, and

states that these purposes will be achieved by retaining

water behind Twitchell Dam and releasing it in a

controlled manner so it will percolate into the

underground reservoir for later use. See Report (Juarez

Decl. Ex. F). Such references are easy to find in the

Report and other sources of legislative history, such

as the Congressional hearing transcripts Defendants

provided, and Defendants catalogue some of them in

their papers. The Court recites only some of them. For

example, in describing the “Anticipated operation” of

the Dam, the Report states that, “The operation of this

reservoir for conservation storage would be such that

water impounded in the silt and conservation space

4 The Dam was initially called Vaquero Dam, but is now called

Twitchell Dam.

App.65a

would be detained for later release in underground

storage at the percolation rate of the channel

downstream. Since the ground-water reservoir beneath

the Santa Maria Valley has ample storage capacity,

and since the percolation rate of the riverbed ravels is

sufficient in most cases to absorb all waters detained

in the reservoir before the next runoff season, no holdover storage is required.” Report p. 47. The Report

states that to achieve “maximum yield from reservoir

operation” and “obtain maximum percolation into the

groundwater basin,” water conserved behind the Dam

should be released at rates equal to or less than the

percolation capacity of the river channel, which is 300

cfs at Fugler Point. Id. p. 54. This was the basis for

the Bureau’s SOP establishing a release regime of 300

cubic feet per second maximum combined flow at

Fugler Point.5

The Report also indicates that “other water uses”

include supplying water for municipal and industrial

purposes, such as for residents of the city of Santa

Maria and for oil refineries and sugar-beet processing

plants. See Report p. 37. In addition, the cover letter

for the Report likewise explains that the operation of

the Project would “provide adequate recharge of the

now critically depleted groundwater reservoir [], provide municipal water for anticipated municipal and

5 The SOP’s Release Procedures state, as relevant: “Water

conservation releases [from Twitchell Dam] are coordinated with

the unregulated flow of the Sisquoc River such that combined

flows at Fugler Point do not exceed 300ft 3/s, which is the

percolation capacity of the Santa Maria River aquifer. Any flow

in excess of 300 ft 3/s remains surface flow and is wasted (for

purposes of conservation) to the Pacific Ocean. If the Sisquoc

River flows alone exceed 300ft 3/s at Fugler Point, no releases

are made from Twitchell Reservoir.” Juarez Decl. Ex. K.

App.66a

industrial growth, and remove the threat of extensive

flood damage to the cities, 3000 acres of presently

unirrigated land could be brought under irrigation

. . . There is an immediate need for the project to

prevent the return of some 8,000 irrigated acres to dry

farming, to arrest the constantly increasing cost of

pumping, to remove the threat of salt-water intrusion

into the basin.” Report p. 15.

Furthermore, in a section titled “Recreation, Fish,

and Wildlife,” the Report considered the Project’s

impacts on the Steelhead. See Report p. 69-70. In brief,

the Report states that “Steelhead trout would not be

able to enter the river as often as without the project,

and as a result the project would cause a small fishing

loss.” Report p. 70. However, there was not a large

quantity of Steelhead present in the river so the loss

would not be significant. See Report p. 89. In a comment

letter that was incorporated into the Report, the

California Department of Fish & Game stated: “Runs

of steelhead have been rather unstable, being dependent upon the uncertain runoff. During the past 7 dry

years, of course, conditions have been unsuitable for

the entry of steelhead from the ocean. In light of the

situation described above, we do not feel justified in

requesting extensive requirements in an attempt to

perpetuate the steelhead runs. For example, we will not

require a fish ladder at Vaquero Dam for passage of

migratory fishes. Also, because of the great width and

pervious character of the riverbed below the proposed

dam, we do not believe that it would be feasible to

request a regular schedule of water release for

maintenance of a stream fishery.” Report p. 112. Thus,

the Report recognized the impact of the Project on

App.67a

Steelhead but did not recommend using water conserved by the Project for the benefit of Steelhead.

The House debate record reflects that Representatives specifically asked whether any impounded water

would “go out to sea,” and the response was that the

“water [would be] confined to a reservoir [ ] and would

be held there in reserve and used for the purpose of

being pumped out by private individuals to supply

their land for irrigation.” See 100 Cong. Rec. 1120

(1954) p. 1141 (Juarez Decl. Ex. B (Dkt. No. 83-4) p. 95).

In the Senate, the Project was further described

as follows: “Construction of the [ ] Vaquero Dam and

Reservoir [ ] would make possible the retention of waste

water during flood periods and the later release of this

water during the dry season into the Santa Maria

River channel, at a rate not greater than the percolation capacity, thus providing for the entire store flow

to seep into the underground storage basin (i.e., groundwater reservoir). No surface-water delivery would be

made to irrigators. Thus, floodwater which would

otherwise be wasted will be conserved and placed in

the underground storage basin. At least this is the

intention of the project.” See 100 Cong. Rec. 14182

(1954) p. 14249 (Juarez Decl. Ex. C (Dkt. No. 83-4) p.

108).

2. PL 774 Does Not Authorize the Use or

Purpose Plaintiffs Seek.

The question before the Court is whether Public

Law 774 permits the Bureau to use any water from

Twitchell Dam for the purpose sought herein—to

release Project water that would flow to the ocean for

wildlife conservation. The parties agree that the

express purposes of irrigation, water conservation,

App.68a

and flood control do not encompass this purpose. However, Plaintiffs argue that Congress’s authorization of

the Dam for unspecified “other purposes” vests the

Bureau with discretion to adjust the release regime to

accommodate the Steelhead. Defendants argue, however, that “other purposes” are permissible only if they

do not conflict with PL 774’s enumerated purposes of

“irrigation and the conservation of water, [and] flood

control.” Defendants argue that because the release

regime Plaintiffs seek would exceed the river channel’s

percolation capacity and would necessarily result in

water flowing into the ocean instead of being conserved

in the underground reservoir, it conflicts with PL 774’s

express conservation purpose. As such, additional

releases for the benefit of Steelhead are not a permissible “other purpose” and are beyond the Bureau’s

authority to implement. The Court thus considers

whether “other purposes” can include the releases

Plaintiffs seek.

Both sides rely on the legal standard articulated

in Britt v. U.S. Army Corps of Engineers, 769 F.2d 84

(2nd Cir. 1985)6: “that modifications by the Chief of

Engineers in a project such as this are within the

scope of his authority unless they are so foreign to the

original purpose of the project as to be arbitrary and

capricious.” Britt, 769 F.2d at 89 (emphasis added).

Applying this rule, the Second Circuit held that

relocating a bridge 1.25 miles away from its planned

location was not foreign to the original purpose of the

project because it would sufficiently serve the same

travelers who needed to cross essentially the same

6 The MTD Order discussed Britt’s facts and did not find them

instructive for this case. The Court will not repeat that discussion

here.

App.69a

part of the bay. Id. With regard to modifying a project’s

purpose and not just its engineering plan, the Britt

Court also approved as “eminently sound,” Britt, 769

F.2d at 79, the Fifth Circuit’s rule that “[e]ven when a

project’s purpose is authorized by Congress, the

executive officer charged with responsibility for the

project may modify its purpose unless this action is so

foreign to the original purpose as to be arbitrary or

capricious.” Creppel v. U.S. Army Corps of Engineers,

670 F.2d 564, 572 (5th Cir. 1982).

Applying this standard to the proposed use here,

the Court finds that operating Twitchell Dam in the

manner that the Plaintiffs propose is so foreign to the

original express purposes of Twitchell Dam as to be

arbitrary and capricious. This is because releasing

water that will necessarily flow into the ocean—as

Plaintiffs seek—conflicts with the express water conservation purpose of Twitchell Dam. To fulfill the Project’s

express purposes, the Report and other legislative

history is replete with discussion of salvaging,

conserving, and storing water as groundwater in the

underground reservoir for later use by pumping. The

Report expressly contrasts water conservation with

the concept of “waste,” which means a flow of water to

the ocean. See Report p. 23 (“These conditions [lack of

adequate water supply and the threat of floods] which

hamper the continuation of stable development of the

valley economy can be removed by conservation of

floodwaters presently wasted to the ocean and by

construction of works to control the floods.”); see also

City of Santa Maria v. Adam, 211 Cal. App. 4th 266,

280–81 (2012), as modified on denial of reh’g (Dec. 21,

2012) (“Adam I”) (observing that “[i]f [high river flows

are] not collected behind dams and stored in

App.70a

reservoirs, most of [them] would waste to the sea in

the winter and the rivers would run low or dry in the

summer months,” and the plan was for Twitchell Dam

“to save floodwater during the rainy season and

release it ‘in such manner and at such times as will

provide maximum contributions to the ground water

supplies . . . ’”). Thus, a fundamental function of the

Project authorized by PL 774 is to salvage all water

that would otherwise be wasted to the ocean, and then

conserve it underground by maximizing groundwater

recharge by limiting releases from the Dam such that

the flow does not exceed the percolation capacity of the

riverbed. Furthermore, the Report reflects that providing flows for perpetuating Steelhead migration

was considered but not included and therefore was a

rejected “other purpose” of the Project.

Plaintiffs argue that the above interpretation of

“other purposes” is too narrow, given that the Santa

Maria Water Rights Adjudication previously construed

“other purposes” to authorize using 80% of the Twitchell

Yield for municipal water supply and industrial purposes, neither of which are express purposes stated in

PL 774. See Opp’n 23:8-21. As noted in the MTD

Order, the California Court of Appeal opinion in

Adam I in the Santa Maria Water Rights Adjudication

rejected an argument made by farmers that allocating

80% of the Twitchell Yield to municipal and industrial

purposes was not permissible because those purposes

were not irrigation. Instead, the Adam I Court found

that municipal and industrial uses were permissible

“other purposes.” See Adam I, 211 Cal. App. 4th at 307309. The Adam I Court observed that, consistent with

California water law and the contract between the

App.71a

Bureau and the SBCWA7, the Bureau applied for and

secured from the state a permit to appropriate Twitchell water for “irrigation, domestic, salinity control, and

incidental recreation” uses, and for “municipal and

industrial” uses. Adam I, at 309. The Adam I Court

determined that because “Congress explicitly

authorized multiple uses for Twitchell water and the

Bureau of Reclamation implicitly approved municipal

and industrial uses by requesting and receiving the right

to appropriate water for those purposes, allocation of

a portion of the Twitchell Yield to municipal and

industrial users does not represent a change in use for

which federal law requires concurrence of the

Secretary.” Id.

The MTD Order relied on this reasoning to provisionally find that “other purposes” could potentially

be as broad as Plaintiffs argue. But, upon further

review, Adam I does not aid Plaintiff. Adam I specifically dealt with allocation of the Twitchell Yield, that is,

water already conserved by Twitchell Dam and stored

as groundwater by virtue of the release regime that

avoids waste and maximizes aquifer recharge. By

contrast, the releases Plaintiffs seek is surface water,

and those releases would not be a part of, but instead

would divert water from, the Twitchell Yield. The

municipal and industrial uses in issue in Adam I did

not involve permitting water to “waste” to the ocean,

but were the results of the opposite—of fulfilling the

water conservation and groundwater recharge purpose of the Project. Simply stated, Adam I’s reasoning

applies to Twitchell Yield water, not to surface water

7 The Santa Barbara County Water Agency (“SBCWA”) was the

District’s predecessor.

App.72a

retained behind the Dam, which is the water Plaintiffs wish to use. By contrast, the purpose Plaintiffs

propose would cause surface water retained behind the

Dam to waste to the ocean and not become part of the

Twitchell Yield. Furthermore, the more extensive

legislative history materials now before the Court

show that municipal and industrial purposes were in

fact among the “other purposes” of the Project

contemplated and authorized by PL 774. See Report p.

15, 37 (referring to the Project supplying groundwater

for municipal and industrial purposes).

Plaintiffs also point to language in PL 774

permitting the Project to proceed “substantially in

accordance” with the Secretary’s Report, and argue

that the amount of water they want released is so

small that the Project will still operate “substantially

in accordance” with the Report. Indeed, the Court

hypothesized to this effect in the MTD Order, offering

that perhaps the issue turned on how much water

would be released in excess of the percolation capacity

of the riverbed. However, this approach is not supported

by any analogous cases addressing whether unspecified

other purposes/uses that conflict with enumerated

purposes are permissible as long as those other purposes/uses are limited in scope and thus create only a

small conflict. Furthermore, this is not a workable

approach: any amount of water released in excess of

the percolation capacity of the riverbed conflicts with

the Project’s enumerated purposes and overall design

and philosophy of avoiding waste to the ocean and

instead conserving water to recharge the aquifer for

later use by pumping. See Jicarilla Apache Tribe, 657

F.2d at 1138 (rejecting use of water “because it is out

of harmony with the entire basic philosophy of this

App.73a

project . . . ”). It is not a matter of degree. The use Plaintiffs seek is not incidental to the express purposes of

the Project, but instead is a wholly different purpose

that detracts from fulfilling the Project’s express purposes.

Based on the foregoing, the Court finds that the

“other purposes” authorized in Public Law 774 do not

include releasing water from Twitchell Dam beyond

the percolation capacity of the riverbed because such

water would not be conserved to recharge the aquifer,

and thus would conflict with and undermine the

express water conservation purpose of the Project.

Plaintiffs seek additional releases from Twitchell Dam

that would exceed the percolation capacity of the

riverbed, but PL 774 does not authorize such releases

so Defendants are not empowered to provide them.

Accordingly, Defendants lack the discretion to act as

requested, and therefore are not the proximate cause

of the alleged take, nor can they provide a remedy.

Although the same question of law was presented

in the motions to dismiss, the Court permitted this

action to proceed beyond that stage primarily to

permit a more in-depth and focused examination of

the “other purposes” language in PL 774. But the

additional legislative history that Defendants have

presented demonstrates the lack of any disputed

question here, and the additional briefing on the law

simply provides no substantial support for Plaintiffs’

argument that “other purposes” includes purposes that

conflict with the enumerated purposes of the Project.

Plaintiffs argue that the Court can “reconcile” PL

774 and ESA § 9 by construing “other purposes” to

include wildlife conservation. But there is nothing to

“reconcile” because the Defendants do not violate the

App.74a

ESA when, as here, their action or inaction is not the

proximate cause of the alleged take because they lack

discretion to act otherwise.

In sum, the Court finds that the surface water

releases from Twitchell Dam that Plaintiffs seek for the

benefit of Steelhead is not an “other purpose” authorized by PL 774. Furthermore, such releases would

conflict with the express purposes and operation of the

Project, and therefore such releases would not be “substantially in accordance” with the purposes and plans

set forth in the Report.

IV. Conclusion

For the foregoing reasons, Defendants’ Motions

for Summary Judgment are GRANTED. Defendants

are ORDERED to jointly file a Proposed Judgment

within five days of the issuance of this Order. Plaintiffs

shall have five days to file any objections thereto.

The Pretrial Conference and Jury Trial dates are

vacated.

IT IS SO ORDERED.

/s/ André Birotte Jr.

United States District Court Judge

Dated: April 15, 2021

App.75a

ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE NINTH

CIRCUIT DENYING PETITION FOR

REHEARING EN BANC

(JANUARY 3, 2023)

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

________________________

SAN LUIS OBISPO COASTKEEPER;

LOS PADRES FORESTWATCH,

Plaintiffs-Appellants,

v.

SANTA MARIA VALLEY WATER

CONSERVATION DISTRICT; et al.,

Defendants-Appellees,

and

GOLDEN STATE WATER COMPANY;

CITY OF SANTA MARIA,

IntervenorDefendants-Appellees.

________________________

No. 21-55479

D.C. No. 2:19-cv-08696-AB-JPR

Central District of California, Los Angeles

App.76a

Before: SCHROEDER, S.R. THOMAS, and BEA, Circuit

Judges.

Judge S.R. Thomas has voted to deny the appellees’

petition for rehearing en banc and Judge Schroeder

so recommends. Judge Bea recommends granting the

petition for rehearing en banc.

The full court has been advised of the petition for

rehearing en banc, and no judge of the court has

requested a vote on the petition for rehearing en banc.

Fed. R. App. P. 35(b).

The appellees’ petition for rehearing en banc is

denied.

The appellees’ motion for judicial notice is also

denied.

App.77a

PUBLIC LAW 774

Public Law 774

CHAPTER 1258

AN ACT

September 3, 1954 To authorize the Secretary of the

[H. R. 2235]

Interior to construct the Santa

Maria project, Southern Pacific

Basin, California.

Santa Maria

Project, Calif.

43 U.S.C. 423e.

Be it enacted by the Senate and

House of Representatives of the

United States of America in Congress

assembled, That the Secretary of the

Interior is hereby authorized to

construct the project for irrigation

and the conservation of water, flood

control, and for other purposes, on

Santa Maria River, California, pursuant to the laws of California

relating to water and water rights,

and, otherwise substantially in

accordance with the recommendations of the Secretary of the Interior

dated January 16, 1953, entitled

“Santa Maria project, Southern

Pacific Basin, California”, in relation

to the Vaquero Dam and Reservoir

and any other conservation feature

of the project: Provided, That in

view of the special circumstances of

the Santa Maria project, neither the

provisions of the third sentence of

section 46 of the Act of May 25, 1926

(44 Stat. 636, 649) nor any other

App.78a

similar provision of the Federal reclamation laws shall be applicable

thereto so long as the water utilized

on project lands is acquired by

pumping from the underground

Repayment con- reservoir: Provided further, That a

tract.

repayment contract not exceeding a

period of fifty years be executed prior

to commencement of construction

of the works herein authorized.

Appropriation.

Sec. 2. There are hereby authorized

to be appropriated, out of any

moneys in the Treasury not otherwise appropriated, such sums as

may be required for the purposes of

this Act not to exceed $16,982,000.

Approved September 3, 1954.

App.79a

ENDANGERED SPECIES ACT OF 1973

ENDANGERED SPECIES ACT OF 1973

As Amended through the

108th Congress

Department of the Interior

U.S. Fish and Wildlife Service

Washington, D.C. 20240

 As amended by P.L. 94-325, June 30, 1976; P.L. 94-359, July 12,

1976; P.L. 95-212, December 19, 1977; P.L. 95-632, November 10,

1978; P.L. 96-159, December 28, 1979; P.L. 97-304, October 13,

1982; P.L. 98-327, June 25, 1984; and P.L. 100-478, October 7,

1988; P.L. 107-171, May 13, 2002; P.L. 108-136, November 24,

2003.

App.80a

FINDINGS, PURPOSES, AND POLICY

Sec. 2.

(a) Findings.—The Congress finds and declares that—

(1) various species of fish, wildlife, and plants in

the United States have been rendered extinct as a

consequence of economic growth and development

untempered by adequate concern and conservation;

(2) other species of fish, wildlife, and plants have

been so depleted in numbers that they are in danger

of or threatened with extinction;

(3) these species of fish, wildlife, and plants are of

esthetic,

ecological,

educational,

historical,

recreational, and scientific value to the Nation and its

people;

(4) the United States has pledged itself as a

sovereign state in the international community to

conserve to the extent practicable the various species

of fish or wildlife and plants facing extinction, pursuant to—

(A) migratory bird treaties with Canada and

Mexico;

(B) the Migratory and Endangered Bird Treaty

with Japan;

(C) the Convention on Nature Protection and

Wildlife Preservation in the Western Hemisphere;

(D) the International Convention for the Northwest

Atlantic Fisheries;

(E) the International Convention for the High

Seas Fisheries of the North Pacific Ocean;

App.81a

(F) the Convention on International Trade in

Endangered Species of Wild Fauna and Flora; and

(G) other international agreements; and

(5) encouraging the States and other interested

parties, through Federal financial assistance and a

system of incentives, to develop and maintain conservation programs which meet national and international

standards is a key to meeting the Nation’s international

commitments and to better safeguarding, for the

benefit of all citizens, the Nation’s heritage in fish,

wildlife, and plants.

(b) Purposes.—

The purposes of this Act are to provide a means

whereby the ecosystems upon which endangered

species and threatened species depend may be conserved, to provide a program for the conservation of

such endangered species and threatened species, and

to take such steps as may be appropriate to achieve

the purposes of the treaties and conventions set forth in

subsection (a) of this section.

(c) Policy.—

(1) It is further declared to be the policy of Congress that all Federal departments and agencies shall

seek to conserve endangered species and threatened

species and shall utilize their authorities in furtherance

of the purposes of this Act.

(2) It is further declared to be the policy of Congress that Federal agencies shall cooperate with State

and local agencies to resolve water resource issues

in concert with conservation of endangered species.

App.82a

DEFINITIONS

Sec. 3. For the purposes of this Act—

(1) The term “alternative courses of action” means

all alternatives and thus is not limited to original

project objectives and agency jurisdiction.

(2) The term “commercial activity” means all activities of industry and trade, including, but not limited

to, the buying or selling of commodities and activities

conducted for the purpose of facilitating such buying

and selling: Provided, however, That it does not include

exhibition of commodities by museums or similar

cultural or historical organizations.

(3) The terms “conserve”, “conserving”, and “conservation” mean to use and the use of all methods and

procedures which are necessary to bring any endangered species or threatened species to the point at

which the measures provided pursuant to this Act are

no longer necessary. Such methods and procedures

include, but are not limited to, all activities associated

with scientific resources management such as research,

census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population

pressures within a given ecosystem cannot be otherwise

relieved, may include regulated taking.

(4) The term “Convention” means the Convention

on International Trade in Endangered Species of Wild

Fauna and Flora, signed on March 3, 1973, and the

appendices thereto.

App.83a

(5)

(A) The term “critical habitat” for a threatened or

endangered species means—

(i)

the specific areas within the geographical

area occupied by the species, at the time it is

listed in accordance with the provisions of

section 4 of this Act, on which are found those

physical or biological features (I) essential

to the conservation of the species and (II)

which may require special management

considerations or protection; and

(ii) specific areas outside the geographical area

occupied by the species at the time it is listed

in accordance with the provisions of section

4 of this Act, upon a determination by the

Secretary that such areas are essential for

the conservation of the species.

(B) Critical habitat may be established for those

species now listed as threatened or endangered

species for which no critical habitat has heretofore

been established as set forth in subparagraph (A)

of this paragraph.

(C) Except in those circumstances determined by

the Secretary, critical habitat shall not include the

entire geographical area which can be occupied

by the threatened or endangered species.

(6) The term “endangered species” means any

species which is in danger of extinction throughout all

or a significant portion of its range other than a

species of the Class Insecta determined by the Secretary to constitute a pest whose protection under the

App.84a

provisions of this Act would present an overwhelming

and overriding risk to man.

(7) The term “Federal agency” means any department, agency, or instrumentality of the United States.

(8) The term “fish or wildlife” means any member

of the animal kingdom, including without limitation

any mammal, fish, bird (including any migratory,

nonmigratory, or endangered bird for which protection is also afforded by treaty or other international

agreement), amphibian, reptile, mollusk, crustacean,

arthropod or other invertebrate, and includes any

part, product, egg, or offspring thereof, or the dead

body or parts thereof.

(9) The term “foreign commerce” includes, among

other things, any transaction—

(A) between persons within one foreign country;

(B) between persons in two or more foreign

countries;

(C) between a person within the United States

and a person in a foreign country; or

(D) between persons within the United States,

where the fish and wildlife in question are

moving in any country or countries outside the

United States.

(10) The term “import” means to land on, bring

into, or introduce into, or attempt to land on, bring

into, or introduce into, any place subject to the jurisdiction of the United States, whether or not such landing,

bringing, or introduction constitutes an importation

within the meaning of the customs laws of the United

States.

App.85a

(11) [Repealed]

(12) The term “permit or license applicant” means,

when used with respect to an action of a Federal agency

for which exemption is sought under section 7, any

person whose application to such agency for a permit

or license has been denied primarily because of the

application of section 7(a) to such agency action.

(13) The term “person” means an individual, corporation, partnership, trust, association, or any other

private entity; or any officer, employee, agent, department, or instrumentality of the Federal Government,

of any State, municipality, or political subdivision of a

State, or of any foreign government; any State,

municipality, or political subdivision of a State; or any

other entity subject to the jurisdiction of the United

States.

(14) The term “plant” means any member of the

plant kingdom, including seeds, roots and other parts

thereof.

(15) The term “Secretary” means, except as otherwise herein provided, the Secretary of the Interior or

the Secretary of Commerce as program responsibilities

are vested pursuant to the provisions of Reorganization

Plan Numbered 4 of 1970; except that with respect to

the enforcement of the provisions of this Act and the

Convention which pertain to the importation or

exportation of terrestrial plants, the term also means

the Secretary of Agriculture.

(16) The term “species” includes any subspecies

of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or

wildlife which interbreeds when mature.

App.86a

(17) The term “State” means any of the several

States, the District of Columbia, the Commonwealth

of Puerto Rico, American Samoa, the Virgin Islands,

Guam, and the Trust Territory of the Pacific Islands.

(18) the term “State agency” means any State

agency, department, board, commission, or other governmental entity which is responsible for the management and conservation of fish, plant, or wildlife

resources within a State.

(19) The term “take” means to harass, harm,

pursue, hunt, shoot, wound, kill, trap, capture, or

collect, or to attempt to engage in any such conduct.

(20) The term “threatened species” means any

species which is likely to become an endangered

species within the foreseeable future throughout all or

a significant portion of its range.

(21) The term “United States,” when used in a

geographical context, includes all States.

DETERMINATION OF ENDANGERED

SPECIES AND THREATENED SPECIES

Sec. 4.

(a) General.—

(1) The Secretary shall by regulation promulgated

in accordance with subsection (b) determine whether

any species is an endangered species or a threatened

species because of any of the following factors:

(A)the present or threatened destruction, modification, or curtailment of its habitat or range;

(B) overutilization for commercial, recreational,

scientific, or educational purposes;

App.87a

(C) disease or predation;

(D) the inadequacy of existing regulatory mechanisms; or

(E) other natural or manmade factors affecting

its continued existence.

(2) With respect to any species over which program

responsibilities have been vested in the Secretary of

Commerce pursuant to Reorganization Plan Numbered

4 of 1970—

(A) in any case in which the Secretary of

Commerce determines that such species should—

(i)

be listed as an endangered species or a

threatened species, or

(ii) be changed in status from a threatened

species to an endangered species, he shall so

inform the Secretary of the Interior, who

shall list such species in accordance with this

section;

(B) in any case in which the Secretary of Commerce determines that such species should—

(i)

be removed from any list published pursuant

to subsection (c) of this section, or

(ii) be changed in status from an endangered

species to a threatened species, he shall recommend such action to the Secretary of the

Interior, and the Secretary of the Interior, if

he concurs in the recommendation, shall

implement such action; an(C) the Secretary of

the Interior may not list or remove from any

list any such species, and may not change

the status of any such species which are

App.88a

listed, without a prior favorable determination made pursuant to this section by the

Secretary of Commerce.

(3)

(A) The Secretary, by regulation promulgated in

accordance with subsection (b) and to the maximum extent prudent and determinable—

(i)

shall, concurrently with making a determination under paragraph (1) that a species is

an endangered species or a threatened species,

designate any habitat of such species which

is then considered to be critical habitat; and

(ii) may, from time-to-time thereafter as appropriate, revise such designation.

(B)

(i)

The Secretary shall not designate as critical

habitat any lands or other geographical areas

owned or controlled by the Department of

Defense, or designated for its use, that are

subject to an integrated natural resources

management plan prepared under section

101 of the Sikes Act (16 U.S.C. 670a), if the

Secretary determines in writing that such

plan provides a benefit to the species for

which critical habitat is proposed for

designation.

(ii) Nothing in this paragraph affects the requirement to consult under section 7(a)(2)

with respect to an agency action (as that

term is defined in that section).

App.89a

(iii) Nothing in this paragraph affects the obligation of the Department of Defense to comply

with section 9, including the prohibition preventing extinction and taking of endangered

species and threatened species.

(b) Basis for Determinations.—

(1)

(A) The Secretary shall make determinations

required by subsection (a)(1) solely on the basis of

the best scientific and commercial data available

to him after conducting a review of the status of

the species and after taking into account those

efforts, if any, being made by any State or foreign

nation, or any political subdivision of a State or

foreign nation, to protect such species, whether

by predator control, protection of habitat and food

supply, or other conservation practices, within any

area under its jurisdiction, or on the high seas.

(B) In carrying out this section, the Secretary

shall give consideration to species which have

been—

(i)

designated as requiring protection from

unrestricted commerce by any foreign nation,

or pursuant to any international agreement;

or

(ii) identified as in danger of extinction, or likely

to become so within the foreseeable future,

by any State agency or by any agency of a

foreign nation that is responsible for the

conservation of fish or wildlife or plants.

App.90a

(2) The Secretary shall designate critical habitat,

and make revisions thereto, under subsection (a)(3) on

the basis of the best scientific data available and after

taking into consideration the economic impact, the

impact on national security, and any other relevant

impact, of specifying any particular area as critical

habitat. The Secretary may exclude any area from

critical habitat if he determines that the benefits of

such exclusion outweigh the benefits of specifying

such area as part of the critical habitat, unless he

determines, based on the best scientific and commercial data available, that the failure to designate such

area as critical habitat will result in the extinction of

the species concerned.

(3)

(A) To the maximum extent practicable, within 90

days after receiving the petition of an interested

person under section 553(e) of title 5, United

States Code, to add a species to, or to remove a

species from, either of the lists published under

subsection (c), the Secretary shall make a finding

as to whether the petition presents substantial

scientific or commercial information indicating

that the petitioned action may be warranted. If

such a petition is found to present such information, the Secretary shall promptly commence a

review of the status of the species concerned. The

Secretary shall promptly publish each finding

made under this subparagraph in the Federal

Register.

(B) Within 12 months after receiving a petition

that is found under subparagraph (A) to present

App.91a

substantial information indicating that the petitioned action may be warranted, the Secretary

shall make one of the following findings:

(i)

The petitioned action is not warranted, in

which case the Secretary shall promptly

publish such finding in the Federal Register.

(ii) The petitioned action is warranted, in which

case the Secretary shall promptly publish in

the Federal Register a general notice and the

complete text of a proposed regulation to

implement such action in accordance with

paragraph (5).

(iii) The petitioned action is warranted, but

that—

(I)

the immediate proposal and timely

promulgation of a final regulation

implementing the petitioned action in

accordance with paragraphs (5) and (6)

is precluded by pending proposals to

determine whether any species is an

endangered species or a threatened

species, and

(II) expeditious progress is being made to

add qualified species to either of the

lists published under subsection (c) and

to remove from such lists species for

which the protections of the Act are no

longer necessary, in which case the Secretary shall promptly publish such

finding in the Federal Register, together

with a description and evaluation of the

reasons and data on which the finding is

based.

App.92a

(C)

(i)

A petition with respect to which a finding is

made under subparagraph (B)(iii) shall be

treated as a petition that is resubmitted to

the Secretary under subparagraph (A) on the

date of such finding and that presents substantial scientific or commercial information

that the petitioned action may be warranted.

(ii) Any negative finding described in subparagraph (A) and any finding described in

subparagraph (B)(i) or (iii) shall be subject to

judicial review.

(iii) The Secretary shall implement a system to

monitor effectively the status of all species

with respect to which a finding is made

under subparagraph (B)(iii) and shall make

prompt use of the authority under paragraph

7 to prevent a significant risk to the well

being of any such species.

(D)

(i)

To the maximum extent practicable, within

90 days after receiving the petition of an

interested person under section 553(e) of

title 5, United States Code, to revise a critical

habitat designation, the Secretary shall make

a finding as to whether the petition presents

substantial scientific information indicating

that the revision may be warranted. The

Secretary shall promptly publish such finding

in the Federal Register.

(ii) Within 12 months after receiving a petition

that is found under clause (i) to present

App.93a

substantial information indicating that

the requested revision may be warranted,

the Secretary shall determine how he intends

to proceed with the requested revision, and

shall promptly publish notice of such intention

in the Federal Register.

(4) Except as provided in paragraphs (5) and (6)

of this subsection, the provisions of section 553 of title

5, United States Code (relating to rulemaking

procedures), shall apply to any regulation promulgated to carry out the purposes of this Act.

(5) With respect to any regulation proposed by the

Secretary to implement a determination, designation,

or revision referred to in subsection (a)(1) or (3), the

Secretary shall—

(A) not less than 90 days before the effective date

of the regulation—

(i)

publish a general notice and the complete text

of the proposed regulation in the Federal

Register, and

(ii) give actual notice of the proposed regulation

(including the complete text of the regulation)

to the State agency in each State in which

the species is believed to occur, and to each

county or equivalent jurisdiction in which

the species is believed to occur, and invite the

comment of such agency, and each such

jurisdiction, thereon;

(B) insofar as practical, and in cooperation with

the Secretary of State, give notice of the proposed

regulation to each foreign nation in which the

species is believed to occur or whose citizens

App.94a

harvest the species on the high seas, and invite

the comment of such nation thereon;

(C) give notice of the proposed regulation to such

professional scientific organizations as he deems

appropriate;

(D) publish a summary of the proposed regulation

in a newspaper of general circulation in each area

of the United States in which the species is

believed to occur; and

(E) promptly hold one public hearing on the

proposed regulation if any person files a request

for such a hearing within 45 days after the date of

publication of general notice.

(6)

(A) Within the one-year period beginning on the

date on which general notice is published in accordance with paragraph (5)(A)(i) regarding a proposed

regulation, the Secretary shall publish in the Federal Register—

(i)

if a determination as to whether a species

is an endangered species or a threatened

species, or a revision of critical habitat, is

involved, either—

(I)

a final regulation to implement such determination,

(II) a final regulation to implement such

revision or a finding that such revision

should not be made,

(III) notice that such one-year period is being

extended under subparagraph (B)(i), or

App.95a

(IV) notice that the proposed regulation is

being withdrawn under subparagraph

(B)(ii), together with the finding on

which such withdrawal is based; or

(ii) subject to subparagraph (C), if a designation

of critical habitat is involved, either—

(I)

a final regulation to implement such

designation, or

(II) notice that such one-year period is being

extended under such subparagraph.

(B)

(i)

If the Secretary finds with respect to a

proposed regulation referred to in subparagraph (A)(i) that there is substantial

disagreement regarding the sufficiency or

accuracy of the available data relevant to the

determination or revision concerned, the

Secretary may extend the one-year period

specified in subparagraph (A) for not more

than six months for purposes of soliciting

additional data.

(ii) If a proposed regulation referred to in

subparagraph (A)(i) is not promulgated as a

final regulation within such one-year period

(or longer period if extension under clause (i)

applies) because the Secretary finds that there

is not sufficient evidence to justify the action

proposed by the regulation, the Secretary

shall immediately withdraw the regulation.

The finding on which a withdrawal is based

shall be subject to judicial review. The Secretary may not propose a regulation that has

App.96a

previously been withdrawn under this clause

unless he determines that sufficient new

information is available to warrant such

proposal.

(iii) If the one-year period specified in subparagraph (A) is extended under clause (i) with

respect to a proposed regulation, then

before the close of such extended period the

Secretary shall publish in the Federal Register either a final regulation to implement the

determination or revision concerned, a finding

that the revision should not be made, or a

notice of withdrawal of the regulation under

clause (ii), together with the finding on

which the withdrawal is based.

(C) A final regulation designating critical habitat

of an endangered species or a threatened species

shall be published concurrently with the final

regulation implementing the determination that

such species is endangered or threatened, unless

the Secretary deems that—

(i)

it is essential to the conservation of such

species that the regulation implementing such

determination be promptly published; or

(ii) critical habitat of such species is not then

determinable, in which case the Secretary,

with respect to the proposed regulation to

designate such habitat, may extend the oneyear period specified in subparagraph (A) by

not more than one additional year, but not

later than the close of such additional year

the Secretary must publish a final regulation,

based on such data as may be available at

App.97a

that time, designating, to the maximum

extent prudent, such habitat.

(7) Neither paragraph (4), (5), or (6) of this subsection nor section 553 of title 5, United States Code,

shall apply to any regulation issued by the Secretary

in regard to any emergency posing a significant risk

to the well-being of any species of fish or wildlife or

plants, but only if—

(A) at the time of publication of the regulation in

the Federal Register the Secretary publishes

therein detailed reasons why such regulation is

necessary; and

(B) in the case such regulation applies to resident

species of fish or wildlife, or plants, the Secretary

gives actual notice of such regulation to the State

agency in each State in which such species is

believed to occur.

Such regulation shall, at the discretion of the Secretary,

take effect immediately upon the publication of the

regulation in the Federal Register. Any regulation

promulgated under the authority of this paragraph

shall cease to have force and effect at the close of the

240-day period following the date of publication unless,

during such 240-day period, the rulemaking procedures

which would apply to such regulation without regard

to this paragraph are complied with. If at any time

after issuing an emergency regulation the Secretary

determines, on the basis of the best appropriate data

available to him, that substantial evidence does not

exist to warrant such regulation, he shall withdraw it.

(8) The publication in the Federal Register of any

proposed or final regulation which is necessary or

appropriate to carry out the purposes of this Act shall

App.98a

include a summary by the Secretary of the data on

which such regulation is based and shall show the

relationship of such data to such regulation; and if

such regulation designates or revises critical habitat,

such summary shall, to the maximum extent practicable, also include a brief description and evaluation of

those activities (whether public or private) which, in

the opinion of the Secretary, if undertaken may

adversely modify such habitat, or may be affected by

such designation.

(c) Lists.—

(1) The Secretary of the Interior shall publish in

the Federal Register a list of all species determined by

him or the Secretary of Commerce to be endangered

species and a list of all species determined by him or

the Secretary of Commerce to be threatened species.

Each list shall refer to the species contained therein

by scientific and common name or names, if any,

specify with respect to each such species over what

portion of its range it is endangered or threatened,

and specify any critical habitat within such range.

The Secretary shall from time to time revise each list

published under the authority of this subsection to

reflect recent determinations, designations, and

revisions made in accordance with subsections (a) and

(b).

(2) The Secretary shall—

(A) conduct, at least once every five years, a

review of all species included in a list which is

published pursuant to paragraph (1) and which is

in effect at the time of such review; and

App.99a

(B) determine on the basis of such review whether

any such species should—

(i)

be removed from such list;

(ii) be changed in status from an endangered

species to a threatened species; or

(iii) be changed in status from a threatened

species to an endangered species.

Each determination under subparagraph (B) shall be

made in accordance with the provisions of subsections

(a) and (b).

(d) Protective Regulations.—

Whenever any species is listed as a threatened

species pursuant to subsection (c) of this section, the

Secretary shall issue such regulations as he deems

necessary and advisable to provide for the conservation of such species. The Secretary may by regulation

prohibit with respect to any threatened species

any act prohibited under section 9(a)(1), in the case

of fish or wildlife, or section 9(a)(2), in the case of

plants, with respect to endangered species; except

that with respect to the taking of resident species of fish

or wildlife, such regulations shall apply in any State

which has entered into a cooperative agreement pursuant to section 6(c) of this Act only to the extent that

such regulations have also been adopted by such

State.

(e) Similarity of Appearance Cases.—

The Secretary may, by regulation of commerce or

taking, and to the extent he deems advisable, treat any

species as an endangered species or threatened

App.100a

species even though it is not listed pursuant to section

4 of this Act if he finds that—

(A) such species so closely resembles in appearance, at the point in question, a species which has

been listed pursuant to such section that enforcement personnel would have substantial difficulty in

attempting to differentiate between the listed and

unlisted species;

(B) the effect of this substantial difficulty is

an additional threat to an endangered or

threatened species; and

(C) such treatment of an unlisted species will

substantially facilitate the enforcement and further the policy of this Act.

(f)

(1) Recovery Plans.—The Secretary shall develop

and implement plans (hereinafter in this subsection

referred to as “recovery plans”) for the conservation

and survival of endangered species and threatened

species listed pursuant to this section, unless he finds

that such a plan will not promote the conservation of

the species. The Secretary, in developing and implementing recovery plans, shall, to the maximum extent

practicable—

(A) give priority to those endangered species or

threatened species, without regard to taxonomic

classification, that are most likely to benefit from

such plans, particularly those species that are,

or may be, in conflict with construction or other

development projects or other forms of economic

activity; incorporate in each plan—

App.101a

(i)

a description of such site-specific management actions as may be necessary to achieve

the plan’s goal for the conservation and

survival of the species;

(ii) objective, measurable criteria which, when

met, would result in a determination, in

accordance with the provisions of this

section, that the species be removed from

the list; and

(iii) estimates of the time required and the cost

to carry out those measures needed to achieve

the plan’s goal and to achieve intermediate

steps toward that goal.

(2) The Secretary, in developing and implementing

recovery plans, may procure the services of appropriate public and private agencies and institutions, and

other qualified persons. Recovery teams appointed pursuant to this subsection shall not be subject to the

Federal Advisory Committee Act.

(3) The Secretary shall report every two years to

the Committee on Environment and Public Works of

the Senate and the Committee on Merchant Marine

and Fisheries of the House of Representatives on the

status of efforts to develop and implement recovery

plans for all species listed pursuant to this section and

on the status of all species for which such plans have

been developed.

(4) The Secretary shall, prior to final approval of

a new or revised recovery plan, provide public notice

and an opportunity for public review and comment on

such plan. The Secretary shall consider all information presented during the public comment period prior

to approval of the plan.

App.102a

(5) Each Federal agency shall, prior to implementation of a new or revised recovery plan, consider all

information presented during the public comment

period under paragraph (4).

(g) Monitoring.—

(1) The Secretary shall implement a system in

cooperation with the States to monitor effectively for

not less than five years the status of all species which

have recovered to the point at which the measures

provided pursuant to this Act are no longer necessary

and which, in accordance with the provisions of this

section, have been removed from either of the lists

published under subsection (c).

(2) The Secretary shall make prompt use of the

authority under paragraph 7 of subsection (b) of this

section to prevent a significant risk to the well being

of any such recovered species.

(h) Agency Guidelines.—

The Secretary shall establish, and publish in the

Federal Register, agency guidelines to insure that the

purposes of this section are achieved efficiently and

effectively. Such guidelines shall include, but are not

limited to—

(1) procedures for recording the receipt and the

disposition of petitions submitted under subsection

(b)(3) of this section;

(2) criteria for making the findings required

under such subsection with respect to petitions;

(3) a ranking system to assist in the identification of

species that should receive priority review under

subsection (a)(1) of this section; and

App.103a

(4) a system for developing and implementing, on

a priority basis, recovery plans under subsection (f) of

this section. The Secretary shall provide to the public

notice of, and opportunity to submit written

comments on, any guideline (including any amendment thereto) proposed to be established under this

subsection.

(i)

If, in the case of any regulation proposed by the

Secretary under the authority of this section, a State

agency to which notice thereof was given in accordance

with subsection (b)(5)(A)(ii) files comments disagreeing

with all or part of the proposed regulation, and the

Secretary issues a final regulation which is in conflict

with such comments, or if the Secretary fails to adopt

a

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