TITLE

Central Delta Water Agency v. Bureau of Reclamation: How the Ninth Circuit Paved the Way for the Next Fish Kill

AUTHOR(S)
Skillen, Elisabeth
PUB. DATE
August 2007
SOURCE
Ecology Law Quarterly;2007, Vol. 34 Issue 3, p979
SOURCE TYPE
Academic Journal
DOC. TYPE
Article
ABSTRACT
In Central Delta Water Agency v. Bureau of Reclamation, the Ninth Circuit implicitly applied a narrowly-focused finality standard that hindered interested parties' access to judicial review in the policing of environmental laws. California Delta farmers sought an injunction against a water allocation plan because they feared that the Federal Bureau of Reclamation (Bureau) would reserve water for instream uses to maintain local fisheries at the expense of their water supply. To support their contentions, the farmers provided hydrological models demonstrating that a drought would likely challenge the Bureau's ability to meet both agricultural and instream uses of water under its current plan. The court held that the evidence provided by the plaintiffs was too speculative to prove that the farmers faced imminent injury. The Ninth Circuit implicitly premised its denial on the lack of finality of Bureau's current water distribution plan. In doing so, the Ninth Circuit accorded substantial deference to the Bureau's authority to revise its current water distribution plan as circumstances demanded. This barrier to judicial review not only frustrates attempts of interested parties to encourage the Bureau to form an emergency water allocation plan for shortages in the California Delta, but it also frustrates California's interests in adjudicating potential public trust violations. Most striking, it can prevent judicial review of the Bureau's actions until an environmental harm is unavoidable. Such an ex post standard frustrates the goals of environmental law. If the court could check the Bureau's decisions when it becomes apparent that the Bureau's plans are essentially final, the court could encourage the Bureau to enact better emergency water distribution plans before the harm is unavoidable. In contrast to the narrowly-focused finality standard implicitly applied by the Ninth Circuit, ripeness inquiries are broader in scope and consider environmental hardships resulting from the failure to grant review. Such an analysis provides a more comprehensive model that would address the potential harms faced by both the farmers and the fish if the Bureau's water distribution plan fails in an emergency.
ACCESSION #
29306301

 

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