FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GRAND CANYON TRUST,
Plaintiff-Appellant,
v.
UNITED STATES BUREAU OF
RECLAMATION; UNITED STATES
FISH AND WILDLIFE SERVICE;
MICHAEL L. CONNOR,
Commissioner U.S. Bureau of
Reclamation,
Defendants-Appellees, No. 11-16326
STATE OF ARIZONA; STATE OF D.C. No.
NEVADA; COLORADO RIVER
COMMISSION OF NEVADA; STATE OF 3:07-cv-08164-DGC
COLORADO; SOUTHERN NEVADA ORDER AND
WATER AUTHORITY; CENTRAL AMENDED
ARIZONA WATER CONSERVATION OPINION
DISTRICT; NEW MEXICO INTERSTATE
STREAM COMMISSION; STATE OF
UTAH; STATE OF WYOMING;
STATE OF NEW MEXICO; STATE OF
CALIFORNIA; COLORADO RIVER
ENERGY DISTRIBUTORS ASSOCIATION;
SOUTHERN CALIFORNIA
METROPOLITAN WATER DISTRICT;
IMPERIAL IRRIGATION DISTRICT,
Intervenor-Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
11341
11342 GRAND CANYON TRUST v. U.S. BUREAU OF REC.
Argued and Submitted
June 11, 2012—San Francisco, California
Filed August 13, 2012
Amended September 17, 2012
Before: Ferdinand F. Fernandez, Ronald M. Gould, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Gould
GRAND CANYON TRUST v. U.S. BUREAU OF REC. 11345
COUNSEL
McCrystie Adams (argued), Earthjustice, Denver, Colorado,
and Neil Levine, Grand Canyon Trust, Denver, Colorado, for
the appellant-plaintiff.
Ignacia S. Moreno, Assistant Attorney General, Mark R. Haag
and David C. Shilton (argued), Environmental & Natural
Resources Division, United States Department of Justice,
Washington, D.C., for the appellees-defendants.
Kenneth C. Slowinski and Nicole D. Klobas, Arizona Depart-
ment of Water Resources, Legal Division, Phoenix, Arizona;
Kamala D. Harris, California Attorney General, Kathleen A.
Kenealy, Senior Assistant Attorney General, and Gary E.
Tavetian, Deputy Attorney General, Los Angeles, California;
John W. Suthers, Colorado Attorney General, and Karen M.
Kwon (argued), First Assistant Attorney General, Denver,
Colorado; Catherine Cortez Maso, Nevada Attorney General,
and Jennifer T. Crandell, Senior Deputy Assistant Attorney
General, Las Vegas, Nevada; Dana R. Walsh, Southern
Nevada Water Authority, Las Vegas, Nevada; Gary K. King,
New Mexico Attorney General, Stephen R. Farris, Assistant
Attorney General, Anne Moore, Assistant Attorney General,
and Amy Haas, Special Assistant Attorney General, Santa Fe,
New Mexico; Mark L. Shurtleff, Utah Attorney General, Nor-
man K. Johnson, Natural Resources Division Chief, and
Michael M. Quealy, Assistant Attorney General, Salt Lake
City, Utah; Gregory A. Phillips, Attorney General, Peter K.
11346 GRAND CANYON TRUST v. U.S. BUREAU OF REC.
Michael, Chief Deputy Attorney General, and Jeremiah I.
Williamson, Assistant Attorney General, Cheyenne, Wyo-
ming; Kathy Robb, Hunton & Williams LLP, New York, New
York; Jay M. Johnson and Suzanne Ticknor, Central Arizona
Project, Phoenix, Arizona; Marcia L. Scully, Joseph A.
Vanderhorst, and Peter E. Von Hamm, Metropolitan Water
District of Southern California, Los Angeles, California; John
P. Carter, Horton, Knox, Carter & Foote, El Centro, Califor-
nia; Bennett W. Raley, Trout, Raley, Montaño, Witwer &
Freeman, P.C., Denver, Colorado, for the intervenors-
appellees.
ORDER
The opinion filed on August 13, 2012 and published at ___
F.3d ___, 2012 WL 3264499, is AMENDED as follows:
At slip opinion page 9166, line 20, change
to . The amended sentence states:
Because FWS used the draft 2009 Recovery Goals as
best available science, a discretionary use, the dis-
trict court concluded that it lacked jurisdiction to
consider the draft 2009 Recovery Goals under the
ESA citizen suit provision.
At slip opinion page 9168, line 1, change
to . The amended sentence states:
Here, FWS used the draft 2009 Recovery Goals to
satisfy its obligation to address the recovery of the
humpback chub in the 2009 BiOp.
Future petitions for rehearing and rehearing en banc will
not be entertained.
IT IS SO ORDERED.
GRAND CANYON TRUST v. U.S. BUREAU OF REC. 11347
OPINION
GOULD, Circuit Judge:
Grand Canyon Trust appeals the district court’s grant of
summary judgment in favor of the United States Bureau of
Reclamation (“Reclamation”) and the United States Fish and
Wildlife Service (“FWS”) rejecting the Trust’s claims alleg-
ing that Reclamation and FWS violated the Endangered Spe-
cies Act, the National Environmental Policy Act and the
Administrative Procedure Act in the operation of the Glen
Canyon Dam. We have jurisdiction under 28 U.S.C. § 1291.
We dismiss as moot in part and affirm in part.
I
Grand Canyon Trust (“the Trust”) is an organization
devoted to the protection and restoration of the canyon coun-
try of the Colorado Plateau. Reclamation and FWS are agen-
cies within the Department of the Interior. Reclamation is
responsible for the operation of the Glen Canyon Dam (“the
Dam”) situated on the Colorado River, and FWS is responsi-
ble for the protection of the humpback chub, a fish that exists
primarily in the relatively inaccessible canyons of the Colo-
rado River and that is listed as endangered under the Endan-
gered Species Act (“ESA”). Intervenor-Appellees are the
seven Colorado River Basin States of Arizona, California,
Colorado, Nevada, New Mexico, Utah, and Wyoming; the
Colorado River Commission of Nevada; the Southern Nevada
Water Authority; the Colorado River Energy Distributors
Association; the Central Arizona Water Conservation District;
the Imperial Irrigation District; and the Metropolitan Water
District of Southern California (collectively, “Intervenors”).
A
We first review the statutory framework relevant to this
appeal. “The ESA reflects a conscious decision by Congress
11348 GRAND CANYON TRUST v. U.S. BUREAU OF REC.
to give endangered species priority over the primary missions
of federal agencies.” W. Watersheds Project v. Kraayenbrink,
632 F.3d 472, 495 (9th Cir.) (quoting Tenn. Valley Auth. v.
Hill, 437 U.S. 153, 180 (1978) (internal quotations marks
omitted)) cert. denied 132 S. Ct. 366 (2011). Under the ESA,
a federal agency must ensure that an “agency action” is not
likely to jeopardize the continued existence of any listed spe-
cies or destroy or adversely modify the critical habitat of any
listed species. 16 U.S.C. § 1536(a)(2); see Kraayenbrink, 632
F.3d at 495 (“The heart of the ESA is section 7(a)(2), 16
U.S.C. § 1536(a)(2).”). If the agency action “may affect” any
listed species, the acting agency must formally consult with
the federal agency responsible for the protection of the spe-
cies in question (“the consulting agency”). 16 U.S.C. § 1536
(a), (b); 50 C.F.R. § 402.14(a); Natural Res. Def. Council v.
Houston, 146 F.3d 1118, 1126 (9th Cir. 1998).1
To begin formal consultation, the acting agency must make
a written request describing the circumstances of the request
and must provide the consulting agency with the best avail-
able scientific and commercial data. 50 C.F.R. § 402.14(c),
(d). After considering the submissions, the consulting agency
must issue a biological opinion (“BiOp”) stating its position
as to whether the agency action will jeopardize or adversely
modify or destroy the critical habitat of a listed species. 16
U.S.C. § 1536(b)(3)(A). If the consulting agency issues a
BiOp indicating that the agency action jeopardizes a listed
species, the consulting agency must suggest reasonable and
prudent alternatives to the acting agency that mitigate the neg-
ative environmental effects of the agency action. Id.
1
“If an agency determines that an action ‘may affect’ critical species or
habitats, formal consultation is mandated.” Id. at 1126. “The purpose of
consultation is to obtain the expert opinion of wildlife agencies to deter-
mine whether the action is likely to jeopardize a listed species or adversely
modify its critical habitat and, if so, to identify reasonable and prudent
alternatives that will avoid the action’s unfavorable impacts.” Karuk Tribe
of Cal. v. United States Forest Serv., 681 F.3d 1006, 1020 (9th Cir. 2012)
(en banc).
GRAND CANYON TRUST v. U.S. BUREAU OF REC. 11349
The ESA also prohibits the acting agency from “taking”2 a
threatened or endangered species in the course of the agency
action. 16 U.S.C. § 1538(a)(1)(B), (G). If the consulting
agency determines that the agency action may incidentally
“take” a threatened or endangered species, the consulting
agency must issue an incidental take statement (“ITS”), speci-
fying, inter alia, the impact of the incidental taking and rea-
sonable and prudent measures that minimize the impact. 16
U.S.C. § 1536(b)(4), (o)(2); Bennett v. Spear, 520 U.S. 154,
158, 170 (1997).3
The National Environmental Policy Act (“NEPA”) requires
that an environmental impact statement (“EIS”) be issued for
every “major Federal action[ ] significantly affecting the qual-
ity of the human environment.” 42 U.S.C. § 4332(C); 40
C.F.R. § 1508.11. An EIS must carefully assess the environ-
mental impact of the proposed action, unavoidable environ-
mental effects, and alternatives to the proposed action. 42
U.S.C. § 4332(C). An agency undertaking a major federal
action may first prepare an environmental assessment (“EA”)
to determine whether an EIS is necessary. 40 C.F.R. § 1508.9.
If after conducting an EA the agency determines that the pro-
posed action will not result in a significant impact, the agency
must issue a finding of no significant impact (“FONSI”) in
lieu of an EIS. 40 C.F.R. §§ 1508.9, 1508.13; Barnes v.
United States Dep’t. of Transp., 655 F.3d 1124, 1131 (9th Cir.
2011).
2
“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.”
16 U.S.C. § 1532(19).
3
“Thus, the [ITS] constitutes a permit authorizing the action agency to
‘take’ the endangered or threatened species so long as it respects the Ser-
vice’s ‘terms and conditions.’ The action agency is technically free to dis-
regard the Biological Opinion and proceed with its proposed action, but
it does so at its own peril (and that of its employees), for ‘any person’ who
knowingly ‘takes’ an endangered or threatened species is subject to sub-
stantial civil and criminal penalties, including imprisonment.” Id. at 170.
11350 GRAND CANYON TRUST v. U.S. BUREAU OF REC.
B
The Colorado River Storage Project Act of 1956 authorized
the construction of the Dam. See 43 U.S.C. § 620 et seq. Fin-
ished in 1963, the Dam is located on the Colorado River in
Northern Arizona, and it creates Lake Powell, the second
largest reservoir in the United States, which provides drinking
water for more than 25 million people. Also, the Dam each
year produces more than 3 million megawatt hours of electric-
ity.
The Colorado River Basin Project Act of 1968 (“CRBPA”)
required the Secretary of the Interior (“the Secretary”) to
adopt criteria for the long-range operation of all reservoirs
and dams constructed and operated under the CRBPA, includ-
ing the Dam. See 43 U.S.C. § 1552(a). The Secretary adopted
the Long-Range Operating Criteria in 1970, which established
a minimum annual water release from Lake Powell of 8.23
million acre feet.4 See Colorado River Reservoirs: Coordi-
nated Long-Range Operation, 35 Fed. Reg. 8,951-52 (June
10, 1970). The CRBPA also required the Secretary to transmit
annual operating plans (“AOPs”) to Congress and the Gover-
nors of the Colorado River Basin States. See 43 U.S.C.
§ 1552(b). AOPs must describe “the actual operation under
the adopted criteria for the preceding compact water year and
the projected operation for the current year.” Id.
The placement and management of the Dam have changed
the historical flow and characteristics of the Colorado River
below the Dam. The Dam traps a large majority of the sedi-
ment that would otherwise flow down the Colorado River,
impairing critical habitat of the humpback chub below the Dam.5
4
An “acre foot” of water is the amount of water needed to cover one
acre of land to a depth of one foot.
5
See 16 U.S.C. § 1532(5)(A); 50 C.F.R. § 424.12. 173 miles of the Col-
orado River and 8 miles of the Little Colorado River have been designated
as critical habitat for the humpback chub.
GRAND CANYON TRUST v. U.S. BUREAU OF REC. 11351
Also, the average temperature of the River below the Dam is
cooler because the Dam releases waters from the deeper and
colder reaches of Lake Powell. This harms the humpback
chub, which thrives in warmer waters.
In part to address this and other negative environmental
consequences of the Dam, Congress passed the Grand Canyon
Protection Act of 1992 (“GCPA”). The GCPA requires the
Secretary generally to operate the Dam “in such a manner as
to protect [and] mitigate adverse impacts” on the environment
and specifically required the Secretary, by 1994, to “complete
a final Glen Canyon Dam [EIS], in accordance with [NEPA].”
Pub. L. No. 102-575, §§ 1802(a), 1804(a), (c)(1)(A). The
GCPA also codified Reclamation’s obligation to complete
and to transmit to Congress and the Governors of the Colo-
rado River Basin States an AOP describing the operation of
the Dam for the preceding year “and the projected year opera-
tions undertaken pursuant to [the GCPA].” Id. at § 1804(c)(2).
In preparing that AOP, Reclamation is required to consult
with members of the general public, including academics and
scientists, environmental organizations, the recreation indus-
try, and purchasers of Federal power generated by the Dam.
Id. at § 1804(c)(3).
Reclamation completed its Final EIS in 1995, in which it
evaluated several alternatives for managing the Dam, includ-
ing operation under a modified low fluctuating flow
(“MLFF”) regime and operation under a seasonally-adjusted
steady flow (“SASF”) regime. MLFF implements fluctuating
water releases from the Dam which vary depending on
demand for electricity.6 With this approach, water releases
would tend to be higher in summer and winter, corresponding
with greater electricity demand, and lower in the spring and
fall, corresponding with decreased electricity demand. SASF,
on the other hand, mimics the natural flow of the River, by
6
Between 1963 and 1991, Reclamation operated the Dam in a manner
similar to MLFF, namely in primary response to power demand.
11352 GRAND CANYON TRUST v. U.S. BUREAU OF REC.
implementing high, steady flows in the spring and low, steady
flows in the summer and fall. In 1996, the Secretary selected
MLFF as the Dam’s specific operating criteria in a NEPA-
required Record of Decision. 40 C.F.R. § 1505.2; Operating
Criteria and 1997 Annual Plan of Operations for Glen Canyon
Dam, 62 Fed. Reg. 9,447 (March 3, 1997).
Reclamation formally consulted with FWS regarding the
operation of the Dam under MLFF. FWS then issued a 1994
BiOp (“the 1994 BiOp”) concluding that MLFF jeopardized
the humpback chub and adversely modified its critical habitat.
FWS suggested reasonable and prudent alternatives to address
the adverse environmental effects of MLFF. They included
the development of an adaptive management program
(“AMP”) to study the impact of flows and to implement rec-
ommendations necessary for survival and recovery of listed spe-
cies,7 and the implementation of a program of experimental
flows and associated studies designed to address the negative
impact of the Dam on listed species.
Through the AMP process, Reclamation adopted a 2008
Experimental Plan (“the 2008 Plan”) that continued the MLFF
system as the operating criteria and also called for a one-time
high water release in March 2008, intended to replenish sedi-
ment in the River below the Dam, and steady flows in Sep-
tember and October of 2008 through 2012. Per NEPA
requirements, Reclamation completed an EA with respect to
the 2008 Plan and concluded that the environmental impact
would not be significant.
Reclamation also formally consulted with FWS regarding
the 2008 Plan, and FWS issued a new BiOp (“the 2008
BiOp”) that expressly superseded the 1994 BiOp. FWS con-
cluded that the 2008 Plan, implemented in accordance with
7
To implement AMP, Reclamation formed the Adaptive Management
Working Group (“AMWG”) that makes recommendations to the Secretary
about the Dam’s operation. The Trust is a member of AMWG.
GRAND CANYON TRUST v. U.S. BUREAU OF REC. 11353
MLFF operation, did not jeopardize the humpback chub or
adversely modify or destroy its critical habitat and that opera-
tion of the Dam under MLFF generally no longer jeopardized
the humpback chub or adversely modified or destroyed its
critical habitat. Thus, the 2008 BiOp reversed FWS’s long-
held “jeopardy” position, as previously expressed in the 1994
BiOp.
C
The Trust then filed suit in the District of Arizona, alleging
that Reclamation violates the ESA by not consulting with
FWS on the development of each of the Dam’s AOPs; that
Reclamation violates NEPA by not preparing an EA or EIS
for each AOP; and that FWS’s 2008 BiOp violates the ESA.8
The district court granted summary judgment to Reclamation,
concluding that AOPs are not “agency action[s]” subject to
ESA’s consultation requirements,9 and that AOPs are not
“major federal action[s]” triggering compliance with NEPA
procedural requirements. As to whether the 2008 BiOp vio-
lated the ESA, the district court granted summary judgment
to the Trust. The district court found that the portions of the
2008 BiOp approving the 2008 Plan were valid, but invali-
dated FWS’s reversal of its long-held position that MLFF
jeopardized the humpback chub and adversely modified or
destroyed its critical habitat. The district court decided that
the 2008 BiOp lacked a reasoned basis, under the best avail-
able science, for FWS’s new conclusion that MLFF does not
8
The procedural history of this action is extensive. In all, the Trust
alleged 13 claims against Reclamation and FWS, which the district court
addressed in four separate orders. We recount those claims relevant to the
Trust’s appeal.
9
The district court reasoned: (1) that AOPs describe mere projections
about water releases from the Dam; (2) that actual release decisions are
made during the course of the year; (3) that the Trust’s real complaint was
with the Record of Decision that implemented MLFF as the operating
criteria for the Dam; (4) and that Reclamation has no discretion to deviate
from that decision through AOPs.
11354 GRAND CANYON TRUST v. U.S. BUREAU OF REC.
destroy or adversely modify chub critical habitat and lacked
a discussion on the effects of MLFF on chub recovery. The
district court remanded the 2008 BiOp to FWS for reconsider-
ation in light of the district court’s decision.
In response to the district court’s remand, FWS issued a
2009 Supplement to the 2008 BiOp which together with the
2008 BiOp constituted the 2009 BiOp. In the 2009 BiOp,
FWS explained its conclusion that the operation of the Dam
under MLFF no longer jeopardized the humpback chub or
adversely modified or destroyed its critical habitat, and, con-
sistent with ESA requirements, included an incidental take
statement (“2009 ITS”) that specified the level of humpback
chub “take” permissible under MLFF operations. The Trust
then filed a second supplemental complaint asserting that the
2009 BiOp and the 2009 ITS violate the ESA; that the 2009
ITS violates NEPA; and that FWS’s draft 2009 Recovery
Goals, on which FWS relied to address humpback chub
recovery in the 2009 BiOp, violate the ESA.
As to whether FWS violated NEPA with respect to the
2009 ITS, the district court gave summary judgment to FWS,
concluding that the issuance of the 2009 ITS was not a major
federal action requiring NEPA compliance. With respect to
the draft 2009 Recovery Goals, the district court granted sum-
mary judgment to FWS, concluding that the district court
lacked jurisdiction under the APA to consider the 2009
Recovery Goals because they are in draft form and are not a
“final agency action” subject to APA review. The district
court also concluded that it lacked jurisdiction to review the
draft 2009 Recovery Goals under the citizen suit provision of
the ESA because FWS had yet to violate the ESA’s mandate
that recovery goals be submitted for public notice and com-
ment and peer review before final approval.
The district court granted summary judgment to FWS as to
the 2009 BiOp, and summary judgment to the Trust as to the
2009 ITS. The district court concluded that FWS fulfilled its
GRAND CANYON TRUST v. U.S. BUREAU OF REC. 11355
duty under the APA to explain its new position regarding
MLFF, but concluded that the 2009 ITS was insufficient
under the ESA because FWS did not sufficiently explain why
the take of young chub could not be quantified, did not pro-
vide a causal link between the adult-based surrogate used and
the take of young chub, and did not provide a rational expla-
nation why no additional reasonable and prudent measures
were necessary. The district court remanded the 2009 ITS to
FWS for reconsideration in light of the district court’s deci-
sion.
In response to the district court’s ruling, FWS issued a
2010 ITS that replaced the 2009 ITS, and the Trust again sup-
plemented its complaint alleging that the 2010 ITS violates
the ESA and NEPA. The district court granted summary judg-
ment to FWS, concluding that the 2010 ITS had cured the
problems that the district court previously identified in the
2009 ITS, and that the 2010 ITS was not a major federal
action subject to NEPA compliance.
The Trust then filed this appeal raising issues: (1) whether
the 2009 BiOp is unlawful under the ESA; (2) whether the
court has jurisdiction to review the 2009 Recovery Goals; (3)
whether Reclamation violates the ESA by relying on the 2009
BiOp; (4) whether FWS’s 2010 ITS is unlawful; (5) whether
Reclamation violates the ESA by relying on the 2010 ITS;
and (6) whether Reclamation must comply with the ESA and
with NEPA procedures before issuing an AOP.
II
We review de novo the district court’s grant of summary
judgment. Karuk Tribe, 681 F.3d at 1017. A grant of sum-
mary judgment is appropriate where “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). We review Reclamation and FWS’s compliance
with the ESA and with NEPA under the standard set forth in
11356 GRAND CANYON TRUST v. U.S. BUREAU OF REC.
the APA. Karuk Tribe, 681 F.3d at 1017. “Under the APA, a
court may set aside an agency action if the court determines
that the action was ‘arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law.’ ” Id. (quoting
5 U.S.C. § 706(2)(A)). We review de novo the district court’s
decision regarding subject matter jurisdiction. Hambleton
Bros. Lumber Co. v. Balkin Enters., Inc., 397 F.3d 1217, 1226
(9th Cir. 2005).
III
After the Trust filed its notice of appeal and pursuant to
Reclamation’s January 2011 request to initiate formal consul-
tation on Reclamation’s proposed 10-year continued operation
of the Dam under MLFF along with High Flow Experimental
Releases and non-native fish controls, FWS issued a new
2011 BiOp and 2011 ITS, which cover the operation of the
Dam through 2020.10 The 2011 BiOp and 2011 ITS have sup-
planted the 2009 BiOp and the 2010 ITS, the documents at
issue in this appeal. We first address the issue of mootness in
light of these intervening developments.
[1] “The doctrine of mootness, which is embedded in Arti-
cle III’s case or controversy requirement, requires that an
actual, ongoing controversy exist at all stages of federal court
proceedings.” Pitts v. Terrible Herbst, Inc., 653 F.3d 1081,
1086 (9th Cir. 2011). “A claim is moot if it has lost its charac-
ter as a present, live controversy.” Am. Rivers v. Nat’l Marine
10
We GRANT the Intervenors-Appellees’ unopposed motion to take
judicial notice of: 1) the 2011 Annual Operating Plan for Colorado River
Reservoirs; 2) excerpts from the Colorado River September 24 Month
Study (2011); and 3) FWS’s Final 2011 BiOp.
We DENY the Trust’s motion to take judicial notice of, or in the alter-
native to supplement the record with, various ESA consultation and NEPA
documents, as listed in the Trust’s motion. We DENY the Trust’s motion
to supplement the record with “The Rahel Study” and the Trust’s motion
to supplement the record with the November 26, 2007 letter from the Trust
to the Office of the Solicitor in the Department of the Interior.
GRAND CANYON TRUST v. U.S. BUREAU OF REC. 11357
Fisheries Serv., 126 F.3d 1118, 1123 (9th Cir. 1997). “If an
event occurs that prevents the court from granting effective
relief, the claim is moot and must be dismissed.” Id.
[2] We have held that the issuance of a superseding BiOp
moots issues on appeal relating to the preceding BiOp. See id.
at 1124; Idaho Dep’t of Fish & Game v. Nat’l Marine Fish-
eries Serv., 56 F.3d 1071 (9th Cir. 1995)11; see also Rio
Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d
1096, 1111-12 (10th Cir. 2010) (concluding that a supersed-
ing BiOp mooted issues related to the validity of previous
BiOps). Here, there is no dispute that the 2009 BiOp and the
2010 ITS have been replaced by the 2011 BiOp and the 2011
ITS. Defendants-Appellees argue, and the Trust concedes,
that the Trust’s claims related to the 2009 BiOp and the 2010
BiOp are now moot. We agree. The Trust’s claims that the
2009 BiOp is unlawful under the ESA; that Reclamation vio-
lates the ESA by relying on the 2009 BiOp; that the 2010 ITS
is unlawful; and that Reclamation violates the ESA by relying
on the 2010 ITS are moot. We turn to the remaining issues.
11
In Idaho Department of Fish & Game, we considered a challenge to
the National Marine Fisheries Service’s 1993 BiOp. Because the district
court issued its judgment that the 1993 BiOp was arbitrary and capricious
just twelve days before the 1993 BiOp’s expiration, by the time the matter
came up on appeal, the 1993 BiOp had been superseded by the 1994-1998
BiOp. Id. at 1074. We concluded that the challenge to the 1993 BiOp was
mooted by the issuance of the superceding 1994-1998 BiOp. Id. at
1074-75.
Similarly, in American Rivers v. National Marine Fisheries Service, we
considered another challenge to the same 1994-1998 BiOp at issue in
Idaho Dep’t of Fish & Game. Appellants challenged the validity of the
1994-1998 BiOp, which was then itself replaced by the 1995 BiOp. Am.
Rivers, 126 F.3d at 1123. We concluded that the appeal was moot by vir-
tue of that replacement. Id. at 1124 (“As in Idaho Dep’t of Fish & Game,
the biological opinion in the present case has been superseded by the 1995
Biological Opinion. Therefore, any challenge to the 1994-1998 Biological
Opinion is moot.”).
11358 GRAND CANYON TRUST v. U.S. BUREAU OF REC.
A
The Trust contends that Reclamation violates the ESA by
not consulting with FWS before issuing each AOP. The dis-
trict court concluded that Reclamation’s decision not to con-
sult with FWS under the ESA does not violate APA
standards. The district court reasoned that AOPs are not the
kind of affirmative “agency action” requiring formal consulta-
tion under the ESA and its implementing regulations because
in issuing each AOP, Reclamation does not exercise discre-
tion that could inure to the benefit of the humpback chub. We
agree.
[3] The ESA requires formal consultation when a federal
agency “authorize[s], fund[s], or carrie[s] out” any action that
may affect a listed species. 16 U.S.C. § 1536(a)(2); 50 C.F.R.
§ 402.14(a); Karuk Tribe, 681 F.3d at 1020. Federal regula-
tion limits this consultation requirement “to all actions in
which there is discretionary Federal involvement or control.”
50 C.F.R. § 402.03 (emphasis added). In National Association
of Home Builders v. Defenders of Wildlife, 551 U.S. 644
(2007), the Supreme Court acknowledged this regulatory limi-
tation, stating that “the ESA’s requirements would come into
play only when an action results from the exercise of agency
discretion.” Id. at 665. ESA consultation requirements do not
apply to an action “that an agency is required by statute to
undertake once certain specified triggering events have
occurred.” Id. at 669 (emphasis in original); see Karuk Tribe,
681 F.3d at 1021 (“[T]his limitation harmonizes the ESA con-
sultation requirement with other statutory mandates that leave
an agency no discretion to consider the protection of listed
species.”).
[4] We have further held that “the ESA consultation
requirement applies only if the agency has the discretionary
control ‘to inure to the benefit of a protected species.’ ” Wash.
Toxics Coal. v. EPA, 413 F.3d 1024, 1033 (9th Cir. 2005)
(quoting Turtle Island Restoration Network v. Nat’l Marine
GRAND CANYON TRUST v. U.S. BUREAU OF REC. 11359
Fisheries Serv., 340 F.3d 969, 977 (9th Cir. 2003)).12 The par-
ties here primarily dispute whether the issuance of an AOP is
a discretionary act that triggers the ESA’s consultation
requirement, and we determine that this issue controls our
rejection of an ESA consultation requirement concerning pro-
duction of each AOP.
1
The Supreme Court has said that “not every action autho-
rized, funded, or carried out by a federal agency is a product
of that agency’s exercise of discretion.” Home Builders, 551
U.S. at 668. In Home Builders, the Court considered whether
the United States Environmental Protection Agency (“EPA”)
exercised the requisite discretion for the purposes of the ESA
consultation requirement when, under the Clean Water Act
(“CWA”), EPA transferred pollution discharge permitting
authority to a state requesting the transfer. The Court noted
that the CWA mandated the transfer after nine specified
criteria were met, without reference to additional compliance
with ESA consultation requirements. Id. at 671-72. The Court
concluded that although EPA exercised some discretion in
determining whether a state had met the specified criteria,
once EPA decided that the state satisfied all nine criteria, EPA
did not have discretion, under the CWA, to deny the transfer.
Id.
Here, Reclamation is required by statute to prepare and
submit an AOP each year to Congress and the Governors of
the Colorado River Basin States. 43 U.S.C. § 1552(b); Pub. L.
No. 102-575, § 1804(c)(2). The Trust argues that because the
specific content of each AOP is not dictated by statute, Recla-
12
More recently, we explained: “Our ‘agency action’ inquiry is two-
fold. First, we ask whether a federal agency affirmatively authorized,
funded, or carried out the underlying activity. Second, we determine
whether the agency had some discretion to influence or change the activity
for the benefit of a protected species.” Karuk Tribe, 681 F.3d at 1021.
11360 GRAND CANYON TRUST v. U.S. BUREAU OF REC.
mation is left with the discretion to decide, through the AOP
process, to operate the Dam in a manner that would benefit
the humpback chub by choosing to implement SASF, or some
other similar flow regime.
[5] The plain language of the CRBPA, however, belies that
Reclamation, through the AOP process, exercises that sort of
discretion. The CRBPA provides that AOPs must “describ[e]
the actual operation [of the Dam] under the adopted criteria
for the preceding compact water year and the projected opera-
tion for the current year.” 43 U.S.C. § 1552(b) (emphasis
added). As stated above, the adopted operating criteria for the
Dam is MLFF which was selected by the Secretary in 1996
in the NEPA-required Record of Decision, and Reclamation
does not have the discretion, through its promulgation of an
AOP, to deviate from the implementation of MLFF. The stat-
ute underscores that reality by limiting the content of each
AOP to a mere description of how Reclamation in the past
year has, and in the upcoming year will, operate the Dam
“under the adopted criteria.” In this light, we conclude that
the statute requires Reclamation to “perform [a] specific non-
discretionary act[ ] rather than achieve broad goals;” namely,
Reclamation does not have the discretion to select different
operating criteria for the Dam by saying so in an AOP. Karuk
Tribe, 681 F.3d at 1024. In other words, Reclamation does not
exercise discretion signifying agency action requiring ESA
consultation compliance.
That the statute does not dictate with specificity the precise
content of each AOP does not detract from this conclusion.
The operation of the Dam is subject to some uncertainty,
which stems from variances in hydrologic conditions, such as
snowpack, and in yearly electricity and water demand, based
on obligations established by the so-called Law of the River,13
13
The “Law of the River” comprises the legal obligations that govern
the allocation and use of the water of the Colorado River. See, e.g., Ari-
zona v. California, 547 U.S. 150 (2006). It includes both inter-state and
international agreement with respect to the River’s use.
GRAND CANYON TRUST v. U.S. BUREAU OF REC. 11361
that are necessarily unknowable before their occurrence but
affect the operation of the Dam. For example, a year with
extreme temperatures might increase the demand for electric-
ity necessary to run heating and cooling systems. Reclamation
exercises some discretion in preparing each AOP insofar as
Reclamation must make projections about how it will operate
the Dam for the upcoming year based on forecasts. That dis-
cretion, however, does not affect Reclamation’s specific, non-
discretionary obligation to implement MLFF in its operation
of the Dam, which the Trust identifies as the primary harm to
the humpback chub.
The crux of Reclamation’s decision-making process on
water flows and other features of the Dam’s operation is in its
establishment of operating criteria for the Dam, such as use
of MLFF rather than SASF, and interested parties had oppor-
tunity to challenge agency decisions on the Dam’s operating
criteria. It is neither practical nor required by law to permit
challenges to each operating plan that is necessarily fashioned
reflecting the operating criteria in its current setting.
The 2008 AOP, which the Trust challenges, suggests limi-
tations on discretion imposed on Reclamation in its prepara-
tion and issuance of an AOP. In it, Reclamation describes its
statutory mandate as follows:
This 2008 Annual Operating Plan (AOP) was devel-
oped in accordance with Section 602 of the Colorado
River Basin Project Act . . . and the Criteria for
Coordinated Long-Range Operation of Colorado
River Reservoirs Pursuant to the Colorado River
Basin Project Act of September 30, 1968 (Operating
Criteria), as amended, promulgated by the Secretary
of the Interior “(Secretary)”. This AOP implements
the requirement of Section 602(b) of the Colorado
River Basin Project Act that the Secretary annually
prepare “a report describing the actual operation
under the adopted critera [i.e., the Operating
11362 GRAND CANYON TRUST v. U.S. BUREAU OF REC.
Criteria] for the preceding compact water year [i.e.,
from October 1 to September 30] and the projected
operation of the current year.”
In accordance with the [CRBPA] and the Operating
Criteria, the AOP must be developed and adminis-
tered consistent with applicable Federal laws . . . and
other documents relating to the use of the waters of
the Colorado River, which are commonly and collec-
tively known as the “Law of the River.”
Reclamation further describes the 2008 AOP’s purpose as fol-
lows:
The purposes of the AOP are to determine or
address: (1) the projected operation of the Colorado
River reservoirs to satisfy project purposes under
varying hydrologic and climatic conditions; (2) the
quantity of water considered necessary to be in stor-
age in the Upper Basin Reservoirs . . . pursuant to
Section 602(a) of the Colorado River Basin Project
Act; (3) water available for delivery pursuant to the
1944 United States-Mexico Water Treaty and Min-
utes No. 242 and 310 of the International Boundary
and Water Commission . . . ; (4) whether the reason-
able consumptive use requirements of mainstream
users in the Lower Division States will be met under
a ‘Normal,’ ‘Surplus,’ or ‘Shortage’ Condition as
outlined in . . . the Operating Criteria and as imple-
mented by the Interim Guidelines; and (5) whether
water apportioned to, but unused by one or more
Lower Division States exists and can be used to sat-
isfy beneficial consumptive use requests of main-
stream users in other Lower Division States as
provided in the Consolidated Decree of the Supreme
Court of the United States in Arizona v. California,
547 U.S. 150 (2006).
GRAND CANYON TRUST v. U.S. BUREAU OF REC. 11363
This description supports the conclusion that the AOP is
merely a descriptive tool by which Congress and the Gover-
nors of the Colorado River Basin States may be kept apprised
of how Reclamation is meeting its multiple preexisting obli-
gations while implementing MLFF at the Dam.
The GCPA reinforces that it was not Congress’ intention to
subject AOPs to ESA consultation requirements. The Act
explicitly requires Reclamation, in preparing each AOP, to
consult with the Governors of the Colorado River Basin
States and with members of the general public, including aca-
demics and scientists, environmental organizations, the recre-
ation industry, and those who buy power that the Dam
produces. Pub. L. No. 102-575, § 1804(c)(3). This list indi-
cates that Congress knew how to mandate consultation in the
preparation of each AOP, yet chose not to include in that list
formal consultation under the ESA. We read that exclusion to
mean that Congress did not intend that Reclamation comply
with the ESA before issuing an AOP. See Home Builders, 551
U.S. at 663 (concluding that the addition of implicit ESA
compliance to the explicitly enumerated criteria for transfer
would impermissibly alter the CWA’s statutory mandate).
[6] Because we conclude that Reclamation, in preparing
each AOP describing the operation of the Dam, does not exer-
cise discretion that inures to the benefit of the chub, we hold
that Reclamation does not violate the ESA by issuing each
AOP without formally consulting with FWS.
2
Our decision in California Sportfishing Protection Alliance
v. Federal Energy and Regulatory Commission, 472 F.3d 593
(9th Cir. 2006), is also instructive with respect to our “agency
action” inquiry here. In that case we considered a petition for
review of the Federal Energy and Regulatory Commission’s
(“FERC”) decision not to formally consult with the National
Marine Fisheries Service (“NMFS”) about the continued
11364 GRAND CANYON TRUST v. U.S. BUREAU OF REC.
operation of the DeSabla-Centerville hydroelectric project, a
system of dams, reservoirs, canals, and powerhouses in Butte
County, California. In 1980, FERC issued a 30-year operating
permit to Pacific Gas and Electric (“PG&E”) to operate the
DeSabla-Centerville hydroelectric project. Id. at 594. Petition-
ers challenged FERC’s decision not to consult formally with
NMFS about the continued operation of the hydroelectric
project after the Chinook Salmon was declared a threatened
species under the ESA in 1999. Id. We decided that the rele-
vant “agency action” was the granting of the permit in 1980.
Id. at 598. Since FERC consulted with NMFS before issuing
the permit to PG&E, and because that agency action was
complete, we held that PG&E’s continued operation of the
hydroelectric project pursuant to that permit, notwithstanding
the subsequent listing of the Chinook Salmon, was merely an
ongoing activity that is not agency action for the purpose of
ESA consultation. Id. at 598-99.
In substance, by challenging the AOPs and urging each one
requires separate ESA consultation, the Trust is continuously
challenging Reclamation’s implementation of MLFF on an
annual basis and its purported effects on the humpback chub.
It is truly the selection of MLFF as the operating criteria
which creates the environmental effects of concern to the
Trust, and so the “agency action,” for the purposes of the
ESA, with which the Trust truly takes issue was the selection
of MLFF as one of the operating criteria, rather than the agen-
cy’s routine reporting in each AOP. Reclamation, however,
fully complied with ESA consultation requirements before the
Secretary chose MLFF.14 Consistent with our decision in Cali-
fornia Sportfishing, Reclamation’s yearly issuance of an AOP
is part of Reclamation’s ongoing operation of the Dam under
MLFF and does not trigger formal consultation under the
ESA. Id. at 599.
14
Reclamation again complied with ESA consultation requirements
when it proposed to alter the operation of the Dam by implementing the
2008 Plan.
GRAND CANYON TRUST v. U.S. BUREAU OF REC. 11365
Our decision on this is also pragmatically required. It is cal-
led for and legally required to permit environmental challenge
under the ESA for want of consultation about an endangered
or threatened species whenever the agency establishes mate-
rial operating criteria for a dam, and when it embarks on a
significant new direction in its operations. But to allow ESA
challenge on an annual basis for each AOP would be unduly
cumbersome and unproductive in addressing the substance of
environmental issues. Annual challenges could not likely be
resolved fully before the next AOP came along, and there is
no benefit to endangered species in having an unending judi-
cial process concerning annual reporting requirements that
Congress mandated.
B
The Trust next contends that Reclamation violates NEPA
by not preparing either an EA or EIS for each AOP. The dis-
trict court concluded that AOPs are not major federal actions
for which NEPA requires that an EA and/or EIS be prepared.
42 U.S.C. § 4332(C). We agree.
[7] In Upper Snake River Chapter of Trout Unlimited v.
Hodel, 921 F.2d 232 (9th Cir. 1990), we considered whether
Reclamation was required to comply with NEPA before mak-
ing changes to the flow of water from the Palisades Dam and
Reservoir located on the South Fork of the Snake River in
Idaho. Reclamation had previously adopted a standard operat-
ing procedure in which it maintained the flow of water from
the dam in the South Fork at a level above 1,000 cubic feet
per second (“cfs”). Id. at 233. In response to drought condi-
tions, however, Reclamation reduced the flow to below 1,000
cfs without first preparing an EIS. Id. at 234. We noted that
“if an ongoing project undergoes changes which themselves
amount to ‘major Federal actions,’ the operating agency must
prepare an EIS;” however, we said that “where a proposed
federal action would not change the status quo, an EIS is not
necessary.” Id. at 234-35. We characterized the fluctuations in
11366 GRAND CANYON TRUST v. U.S. BUREAU OF REC.
flow as “routine managerial actions” that Reclamation had
continuously implemented while “operating the facility in the
manner intended.” Id. at 235. In that light, we concluded that
Reclamation was not required to comply with NEPA when it
made changes to the volume of water it released from the
Dam based on changes in weather conditions. Id. at 235-36.
[8] Here, Reclamation is not making material changes to
the operating criteria for the Dam when it prepares and issues
an AOP. As in Upper Snake River Chapter of Trout Unlim-
ited, Reclamation does not change the status quo through the
AOP process. Reclamation is not authorized to operate the
Dam under another flow regime by simply declaring such a
change in an AOP. Instead, as stated above, an AOP merely
chronicles Reclamation’s ongoing operation of the Dam under
the existing operating criteria, MLFF, during the preceding
year and projects how Reclamation will do the same in the
upcoming year.
[9] In addition, we have said that “[t]he standards for
‘major federal action’ under NEPA and ‘agency action’ under
the ESA are much the same. If there is any difference, case
law indicates ‘major federal action’ is the more exclusive
standard.” Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1075
(9th Cir. 1996); see also Karuk Tribe, 681 F.3d at 1024
(“Although the ‘major federal action’ standard under NEPA
is similar to the more liberal ‘agency action’ standard under
the ESA, Marbled Murrelet, 83 F.3d at 1075, the terms are
not interchangeable.”). Because we conclude above that AOP
promulgation is not an agency action subject to ESA-
mandated consultation, it follows that AOP promulgation
does not trigger compliance with NEPA procedural require-
ments. Marbled Murrelet, 83 F.3d at 1075 (“Where, as here,
there is no ‘agency action’ under what is probably the more
liberal standard of the ESA, there is no ‘major federal action’
under the more exclusive standard of NEPA.”).
[10] Our conclusion above that producing an AOP is not
a major federal action requiring compliance with NEPA pro-
GRAND CANYON TRUST v. U.S. BUREAU OF REC. 11367
cedures is also reinforced by the same pragmatic and realistic
concerns that supported our decision that AOPs do not rou-
tinely require ESA consultation. Similarly, we hold that Rec-
lamation is not required to comply with NEPA procedural
requirements before preparing each AOP for the Dam. The
time for an agency to give a hard look at environmental con-
sequences, and the opportunity for serious NEPA litigation on
whether alternatives were adequately considered, should
come in this context at the points where an agency establishes
operating criteria for a dam, or embarks on some significant
shift of direction in operating policy, not merely when there
is routine and required annual reporting.
C
The Trust next challenges the district court’s conclusion
that it lacked jurisdiction to review the draft 2009 Recovery
Goals for the humpback chub. FWS issued recovery goals for
the chub in 2002 (“2002 Recovery Goals”). The district court
invalidated them, however, because they did not include time
and cost estimates as required by the ESA. Because the dis-
trict court did not find fault with the science of the 2002
Recovery Goals, FWS restyled them as the draft 2009 Recov-
ery Goals and relied on them as the best available science
regarding humpback chub recovery in the 2009 BiOp. See 16
U.S.C. § 1536(a)(2) (requiring use of “the best scientific and
commercial data available”). Taking into account the science
of the draft 2009 Recovery Goals, the district court concluded
that FWS, in the 2009 BiOp, cured the recovery-related defi-
ciency that the district court identified in the 2008 BiOp.
The Trust challenged the draft 2009 Recovery Goals, con-
tending that they violated the ESA because they had not been
offered for public notice and comment or for peer review. The
district court concluded, however, that the court did not have
jurisdiction under either the citizen suit provision of the ESA
or under the APA to review the draft 2009 Recovery Goals.
We agree that under the citizen suit provision of the ESA, the
11368 GRAND CANYON TRUST v. U.S. BUREAU OF REC.
district court does not have jurisdiction to review the draft
2009 Recovery Goals, and we conclude that the issue of
whether the district court similarly lacks jurisdiction under the
APA to review the draft 2009 Recovery Goals is moot.
1
[11] For the purpose of delisting endangered species and
threatened species, the ESA requires the Secretary to “de-
velop and implement [recovery plans or goals] for the conser-
vation 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.”
16 U.S.C. § 1533(f)(1). This obligation is separate from the
Secretary’s obligation to “adequately consider the proposed
actions’ impacts on the listed species’ chances of recovery” in
a BiOp. See Nat’l Wildlife Fed’n. v. Nat’l. Marine Fisheries
Serv., 524 F.3d 917, 931 (9th Cir. 2008) (affirming the district
court’s conclusion that a BiOp was “legally deficient”
because it did not address recovery).
Recovery goals must include: (1) “site-specific manage-
ment actions . . . necessary to achieve the plan’s goal for the
conservation and survival of the species,” (2) “objective, mea-
surable criteria” that would lead toward delisting, and (3) time
and cost estimates “to carry out those measures.” 16 U.S.C.
§ 1533(f)(1)(B). The Secretary must also provide the opportu-
nity for public notice and comment before final approval of
a recovery plan, and “prior to implementation of a new or
revised recovery plan, consider all information presented dur-
ing the public comment period.” 16 U.S.C. § 1553(f)(4), (5).
[12] The ESA citizen suit provision states that “any person
may commence a civil suit on his own behalf . . . against the
Secretary where there is alleged a failure of the Secretary to
perform any act or duty under section 1533 . . . which is not
discretionary with the Secretary.” 16 U.S.C. § 1540(g)(1)(C)
(emphasis added). The Trust argues that because public notice
GRAND CANYON TRUST v. U.S. BUREAU OF REC. 11369
and comment, peer review, and the inclusion of time and cost
estimates are non-discretionary requirements that the ESA
imposes on FWS’s approval of recovery goals, FWS’s use of
the draft 2009 Recovery Goals as the best available science to
define recovery of the chub in the 2009 BiOp, without first
meeting those non-discretionary requirements, violates the
ESA. The district court concluded, however, that it only had
jurisdiction under the ESA to consider the draft 2009 Recov-
ery Goals qua recovery goals for delisting purposes, their
non-discretionary use. Because FWS used the draft 2009
Recovery Goals as best available science, a discretionary use,
the district court concluded that it lacked jurisdiction to con-
sider the draft 2009 Recovery Goals under the ESA citizen
suit provision. We agree.
Our decision in Coos County Board of County Commis-
sioners v. Kempthorne, 531 F.3d 792 (9th Cir. 2008) is analo-
gous and persuasive on the lack of jurisdiction supporting the
challenge to the agency use of the draft recovery goals. In
Coos County, FWS did not delist the marbled murrelet (a sea-
bird) after FWS’s determined in a Five-Year Review that
marbled murrelets “do not meet the definition of a ‘distinct
population segment,’ one of the population categories which
may be protected under the ESA, see 16 U.S.C. § 1532(16),
but determined that they nonetheless remained threatened.”
Id. at 794. Coos County sued FWS arguing that FWS has a
duty to delist the bird. We reasoned that Coos County’s
“[ESA citizen suit] and [APA] causes of action [could] pro-
ceed only if FWS has a nondiscretionary duty to begin the
delisting process—promptly or otherwise—as a result of the
determination made in the Five-Year Review and has failed
to act upon that duty.” Id. at 803. Deciding that there was no
such duty under the statute, we concluded that there was no
jurisdiction because “Coos County has not alleged a failure to
perform a nondiscretionary act or duty imposed by § 1533,
whether premised on the petition process deadlines or on the
agency’s more general duty to act on its own determinations.”
Id. at 812.
11370 GRAND CANYON TRUST v. U.S. BUREAU OF REC.
[13] Here, the ESA mandates peer review and notice and
comment on recovery goals when offered as recovery goals.
See 16 U.S.C. § 1533(f)(1) (“The Secretary shall develop and
implement [recovery plans] for the conservation and survival
of endangered species and threatened species listed pursuant
to this section”), (f)(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 pres-
ented during the public comment period prior to approval of
the plan.”). Nothing in these provisions either limits the Sec-
retary’s use of the science of draft recovery goals to support
a BiOp’s conclusions about an agency action’s effect on a
listed species’ recovery or mandates that the Secretary meet
the requirements of § 1533(f)(4), (5) before such alternate dis-
cretionary use. We conclude that the ESA citizen suit provi-
sion does not support jurisdiction here because FWS did not
fail to perform a non-discretionary act before using the sci-
ence incorporated in the draft 2009 Recovery Goals to support
its 2009 BiOp.
2
[14] The district court also concluded that it lacked juris-
diction under the APA to review the draft 2009 Recovery
Goals because they were not a “final agency action” as
required by that statute. 5 U.S.C. § 704. Here, FWS used the
draft 2009 Recovery Goals to satisfy its obligation to address
the recovery of the humpback chub in the 2009 BiOp. Any
inquiry into whether that use violated the APA would require
us to delve into the merits of the 2009 BiOp, a document that
is no longer operative. Given our conclusion above that issues
on appeal related to the 2009 BiOp are moot because the 2009
BiOp has been replaced by the 2011 BiOp, we hold that the
issue of whether the APA supports review of the draft 2009
Recovery Goals as used in the 2009 BiOp is also moot.
[15] Finally, we vacate the judgment of the district court
with respect to the 2009 BiOp and the 2010 ITS. See Log
GRAND CANYON TRUST v. U.S. BUREAU OF REC. 11371
Cabin Republicans v. United States, 658 F.3d 1162, 1167-68
(9th Cir. 2011) (per curiam) (“Vacatur ensures that those who
have been prevented from obtaining the review to which they
are entitled are not . . . treated as if there had been a review.
It prevents an unreviewable decision from spawning any legal
consequences, so that no party is harmed by what the
Supreme Court has called a preliminary adjudication.” (inter-
nal quotation marks, alterations, and citations omitted)).
DISMISSED in part; AFFIRMED in part.