San Luis Obispo Coastkeeper v. Santa Maria Valley Water Conservation

“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).

San Luis Obispo Coastkeeper and Los Padres Forest Watch (“Plaintiffs”) appealed a summary judgment in favor of Bureau of Reclamation and Santa Maria Water District (“Agencies”), claiming the Agencies operation of Twitchell Dam violated the Endangered Species Act (“ESA”).   Plaintiffs assigned error to the trial court’s holding and argued the Agencie's operation of the dam was an unlawful taking in violation of the ESA because it interfered with Southern California’s Steelhead reproductive migration.  In response, the Agencies argued that Public Law 774 (“PL 744 “) allowed “no discretion to release any amount of dam water to preserve endangered Southern California Steelhead.”  “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).  The Court concluded, “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)).  Reversed.