Decadelong fight over Yuba River dams ends in favor of feds

SACRAMENTO, Calif. (CN) — The federal government has complied with the Endangered Species Act in its activities at two dams on California’s Yuba River, a judge ruled Tuesday in a decade-old case.

However, U.S. District Judge Daniel Calabretta had one carveout in his decision. He determined the National Marine Fisheries Service and U.S. Army Corps of Engineers improperly excluded the Brophy Diversion from an analysis. He remanded that aspect of the case to the service for reassessment.

The judge’s decision on the motions for summary judgement closes the 2016 case that at its heart focused on three fish: Central Valley spring chinook salmon, Central Valley steelhead, and North American green sturgeon.

Friends of the River had argued the service and corps improperly defined the range of agency action at Daguerre Point and Englebright dams. Operating under the wrong legal definition violated the Endangered Species Act and the corps’ duty to protect the fish.

Calabretta determined the two dams didn’t qualify as an agency action, as they weren’t authorized or funded by the defendants.

“Nothing in the record indicates that the corps authorized, funded, or carried out the construction of the dams,” the Joe Biden appointee wrote. “In fact, the dams were constructed decades ago with the authorization and funding of Congress.”

He noted neither dam is operated by the corps. They’re comprised of concrete barriers with unregulated spillways, and as such require no operation that would qualify as an ongoing activity.

Ultimately, Friends of the River failed to show the corps was arbitrary and capricious by determining the dams weren’t an agency action.

“To the contrary, it appears that Daguerre and Englebright are not authorized, funded, or carried out by the corps, and that the corps lacks discretion to influence or change the existence of Daguerre and Englebright for the benefit of the protected species,” Calabretta wrote.

Friends of the River also argued the corps violated the Endangered Species Act because it didn’t ask for consultation on the agency action. That action consists of all activities on the Lower Yuba River, and the corps separated the dams from each other.

The group claimed the corps included the dams under a broad category: Lower Yuba River activities. However, Calabretta wrote that the environmental group didn’t show the corps’ decision to ask for separate consultations for activities near the two dams was arbitrary and capricious.

“Activities are not part of the same agency action simply because they occur within an arbitrarily defined geographic area,” he added. “Plaintiff does not present any other argument as to why Daguerre and Englebright must be considered part of the same agency action.”

Pivoting to the Brophy and Cordua diversions, Calabretta wrote these water facilities had different legal footing.

Cordua operates under a perpetual license issued in 1911 and is operated by a third party, meaning the corps doesn’t authorize, fund or carry out its activities. It doesn’t qualify as an agency action.

However, the Brophy Diversion is different, the judge wrote. It once operated under five-year licenses granted by the corps, though it’s been in “holdover status” since the last license expired in 2000. Since then, the corps has allowed the the Yuba County Water Agency to operate under the prior license.

Calabretta wrote that the defendants’ exclusion of the Brophy Diversion from an Endangered Species Act analysis was arbitrary and capricious, as those diversions could affect the protected species.

“The failure to provide any adequate explanation for the exclusion of the Brophy Diversion from the analysis is sufficient for the court to find that the [biological opinion] was arbitrary and capricious, as it precludes the court from undertaking meaningful judicial review,” Calabretta wrote.

The issue of the Brophy Diversion will return to the National Marine Fisheries Service to reassess the 2024 biological opinion. Calabretta granted all other aspects of the defendants’ motion for summary judgment, closing the case.

A spokesperson for the U.S. Justice Department declined comment.

Representing Friends of the River, attorney Christopher Sproul told Courthouse News the judge failed to acknowledge the corps previously has modified dams. He said completing those modifications without authority would have made them illegal.

Sproul said the “all or nothing” approach of the judge — the thinking that the corps can’t demolish dams, meaning they have no authority — misses the point. He said since the corps has jurisdiction and authority to ameliorate impacts of dams, it must comply with the Endangered Species Act.

Sproul agreed with the decision about the Brophy Diversion.

“We strongly disagree with the remainder,” he said.