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,

STATE OF ARIZONA; STATE OF No. 11-16326

NEVADA; COLORADO RIVER D.C. No. COMMISSION OF NEVADA; STATE OF  3:07-cv-08164-DGC COLORADO; SOUTHERN NEVADA

WATER AUTHORITY; CENTRAL OPINION

ARIZONA WATER CONSERVATION

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

9139
Argued and Submitted

June 11, 2012—San Francisco, California

Filed August 13, 2012

Before: Ferdinand F. Fernandez, Ronald M. Gould, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Gould

9140 GRAND CANYON TRUST v. U.S. BUREAU OF RECLAMATION
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 Department 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, Norman K. Johnson, Natural Resources Division Chief, and

Michael M. Quealy, Assistant Attorney General, Salt Lake

City, Utah; Gregory A. Phillips, Attorney General, Peter K.

Michael, Chief Deputy Attorney General, and Jeremiah I.

Williamson, Assistant Attorney General, Cheyenne, Wyoming; Kathy Robb, Hunton & Williams LLP, New York, New

GRAND CANYON TRUST v. U.S. BUREAU OF RECLAMATION 9143
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, California; Bennett W. Raley, Trout, Raley, Montaño, Witwer &

Freeman, P.C., Denver, Colorado, for the intervenorsappellees.

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 alleging that Reclamation and FWS violated the Endangered Species 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 country of the Colorado Plateau. Reclamation and FWS are agencies 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 responsible for the protection of the humpback chub, a fish that exists

primarily in the relatively inaccessible canyons of the Colorado River and that is listed as endangered under the Endangered Species Act (“ESA”). Intervenor-Appellees are the

seven Colorado River Basin States of Arizona, California,

9144 GRAND CANYON TRUST v. U.S. BUREAU OF RECLAMATION
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

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 species 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 species 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

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 determine 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 RECLAMATION 9145
and must provide the consulting agency with the best available 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 negative environmental effects of the agency action. Id.

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”), specifying, inter alia, the impact of the incidental taking and reasonable 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 quality of the human environment.” 42 U.S.C. § 4332(C); 40

C.F.R. § 1508.11. An EIS must carefully assess the environ2

“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 Service’s ‘terms and conditions.’ The action agency is technically free to disregard 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 substantial civil and criminal penalties, including imprisonment.” Id. at 170.

9146 GRAND CANYON TRUST v. U.S. BUREAU OF RECLAMATION
mental impact of the proposed action, unavoidable environmental 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 proposed 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).

B

The Colorado River Storage Project Act of 1956 authorized

the construction of the Dam. See 43 U.S.C. § 620 et seq. Finished 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 electricity.

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, including 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.4See Colorado River Reservoirs: Coordinated 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 Governors of the Colorado River Basin States. See 43 U.S.C.

4An “acre foot” of water is the amount of water needed to cover one

acre of land to a depth of one foot. 

GRAND CANYON TRUST v. U.S. BUREAU OF RECLAMATION 9147
§ 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 sediment that would otherwise flow down the Colorado River,

impairing critical habitat of the humpback chub below the Dam.5

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 Colorado River Basin States an AOP describing the operation of

the Dam for the preceding year “and the projected year operations 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 industry, and purchasers of Federal power generated by the Dam.

Id. at § 1804(c)(3).

Reclamation completed its Final EIS in 1995, in which it

5

See 16 U.S.C. § 1532(5)(A); 50 C.F.R. § 424.12. 173 miles of the Colorado River and 8 miles of the Little Colorado River have been designated

as critical habitat for the humpback chub. 

9148 GRAND CANYON TRUST v. U.S. BUREAU OF RECLAMATION
evaluated several alternatives for managing the Dam, including 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

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 NEPArequired 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 recommendations necessary for survival and recovery of listed species,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

6Between 1963 and 1991, Reclamation operated the Dam in a manner

similar to MLFF, namely in primary response to power demand. 

7To 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 RECLAMATION 9149
system as the operating criteria and also called for a one-time

high water release in March 2008, intended to replenish sediment in the River below the Dam, and steady flows in September 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 concluded that the 2008 Plan, implemented in accordance with

MLFF operation, did not jeopardize the humpback chub or

adversely modify or destroy its critical habitat and that operation 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 longheld “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

8The 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. 

9The 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. 

9150 GRAND CANYON TRUST v. U.S. BUREAU OF RECLAMATION
“major federal action[s]” triggering compliance with NEPA

procedural requirements. As to whether the 2008 BiOp violated 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 invalidated 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 available science, for FWS’s new conclusion that MLFF does not

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 reconsideration 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, consistent 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 summary 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

GRAND CANYON TRUST v. U.S. BUREAU OF RECLAMATION 9151
“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 comment 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

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 provide a causal link between the adult-based surrogate used and

the take of young chub, and did not provide a rational explanation 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 decision.

In response to the district court’s ruling, FWS issued a

2010 ITS that replaced the 2009 ITS, and the Trust again supplemented its complaint alleging that the 2010 ITS violates

the ESA and NEPA. The district court granted summary judgment 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.

9152 GRAND CANYON TRUST v. U.S. BUREAU OF RECLAMATION
II

We review de novo the district court’s grant of summary

judgment. Karuk Tribe, 681 F.3d at 1017. A grant of summary 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

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 discretion, 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 consultation 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 supplanted the 2009 BiOp and the 2010 ITS, the documents at

10We 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 alternative 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 RECLAMATION 9153
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 Article 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 character as a present, live controversy.” Am. Rivers v. Nat’l Marine

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 Fisheries 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 superseding 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

11In 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 virtue 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.”). 

9154 GRAND CANYON TRUST v. U.S. BUREAU OF RECLAMATION
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 violates 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.

A

The Trust contends that Reclamation violates the ESA by

not consulting with FWS before issuing each AOP. The district court concluded that Reclamation’s decision not to consult 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 consultation under the ESA and its implementing regulations because

in issuing each AOP, Reclamation does not exercise discretion 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 regulation 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 limitation, 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 consultation requirement with other statutory mandates that leave

GRAND CANYON TRUST v. U.S. BUREAU OF RECLAMATION 9155
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

Fisheries Serv., 340 F.3d 969, 977 (9th Cir. 2003)).12 The parties 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 production of each AOP.

1

The Supreme Court has said that “not every action authorized, 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

12More recently, we explained: “Our ‘agency action’ inquiry is twofold. 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. 

9156 GRAND CANYON TRUST v. U.S. BUREAU OF RECLAMATION
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, Reclamation 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 operation 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 statute 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 nondiscretionary 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.

GRAND CANYON TRUST v. U.S. BUREAU OF RECLAMATION 9157
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

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 electricity 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 discretion, however, does not affect Reclamation’s specific, nondiscretionary 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 opportunity 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 limitations on discretion imposed on Reclamation in its preparation and issuance of an AOP. In it, Reclamation describes its

statutory mandate as follows:

This 2008 Annual Operating Plan (AOP) was developed in accordance with Section 602 of the Colorado

River Basin Project Act . . . and the Criteria for

13The “Law of the River” comprises the legal obligations that govern

the allocation and use of the water of the Colorado River. See, e.g., Arizona v. California, 547 U.S. 150 (2006). It includes both inter-state and

international agreement with respect to the River’s use. 

9158 GRAND CANYON TRUST v. U.S. BUREAU OF RECLAMATION
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

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 administered consistent with applicable Federal laws . . . and

other documents relating to the use of the waters of

the Colorado River, which are commonly and collectively known as the “Law of the River.”

Reclamation further describes the 2008 AOP’s purpose as follows:

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 storage 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 Minutes No. 242 and 310 of the International Boundary

and Water Commission . . . ; (4) whether the reasonable 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 impleGRAND CANYON TRUST v. U.S. BUREAU OF RECLAMATION 9159
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 satisfy beneficial consumptive use requests of mainstream 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).

This description supports the conclusion that the AOP is

merely a descriptive tool by which Congress and the Governors of the Colorado River Basin States may be kept apprised

of how Reclamation is meeting its multiple preexisting obligations 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 academics and scientists, environmental organizations, the recreation industry, and those who buy power that the Dam

produces. Pub. L. No. 102-575, § 1804(c)(3). This list indicates 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 exercise 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.

9160 GRAND CANYON TRUST v. U.S. BUREAU OF RECLAMATION
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

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. Petitioners 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 relevant “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 agency’s routine reporting in each AOP. Reclamation, however,

fully complied with ESA consultation requirements before the

GRAND CANYON TRUST v. U.S. BUREAU OF RECLAMATION 9161
Secretary chose MLFF.14 Consistent with our decision in California 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.

Our decision on this is also pragmatically required. It is called 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 material 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 judicial 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 district 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 making 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 operat14Reclamation again complied with ESA consultation requirements

when it proposed to alter the operation of the Dam by implementing the

2008 Plan. 

9162 GRAND CANYON TRUST v. U.S. BUREAU OF RECLAMATION
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 conditions, 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

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 Unlimited, 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

GRAND CANYON TRUST v. U.S. BUREAU OF RECLAMATION 9163
not interchangeable.”). Because we conclude above that AOP

promulgation is not an agency action subject to ESAmandated consultation, it follows that AOP promulgation

does not trigger compliance with NEPA procedural requirements. 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 procedures is also reinforced by the same pragmatic and realistic

concerns that supported our decision that AOPs do not routinely require ESA consultation. Similarly, we hold that Reclamation 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 consequences, 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 district court did not find fault with the science of the 2002

Recovery Goals, FWS restyled them as the draft 2009 Recovery 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

9164 GRAND CANYON TRUST v. U.S. BUREAU OF RECLAMATION
of the draft 2009 Recovery Goals, the district court concluded

that FWS, in the 2009 BiOp, cured the recovery-related deficiency that the district court identified in the 2008 BiOp.

The Trust challenged the draft 2009 Recovery Goals, contending 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

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 “develop and implement [recovery plans or goals] 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.”

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 management actions . . . necessary to achieve the plan’s goal for the

conservation and survival of the species,” (2) “objective, measurable 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 opportuGRAND CANYON TRUST v. U.S. BUREAU OF RECLAMATION 9165
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 during 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

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 Recovery Goals qua recovery goals for delisting purposes, their

non-discretionary use. Because Reclamation used the draft

2009 Recovery Goals as best available science, a discretionary use, the district court concluded that it lacked jurisdiction

to consider the draft 2009 Recovery Goals under the ESA citizen suit provision. We agree.

Our decision in Coos County Board of County Commissioners v. Kempthorne, 531 F.3d 792 (9th Cir. 2008) is analogous 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 seabird) 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

9166 GRAND CANYON TRUST v. U.S. BUREAU OF RECLAMATION
“[ESA citizen suit] and [APA] causes of action [could] proceed 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.

[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 presented during the public comment period prior to approval of

the plan.”). Nothing in these provisions either limits the Secretary’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 discretionary use. We conclude that the ESA citizen suit provision does not support jurisdiction here because FWS did not

fail to perform a non-discretionary act before using the science incorporated in the draft 2009 Recovery Goals to support

its 2009 BiOp.

2

[14] The district court also concluded that it lacked jurisdiction under the APA to review the draft 2009 Recovery

Goals because they were not a “final agency action” as

GRAND CANYON TRUST v. U.S. BUREAU OF RECLAMATION 9167
required by that statute. 5 U.S.C. § 704. Here, Reclamation

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

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.” (internal quotation marks, alterations, and citations omitted)).

DISMISSED in part; AFFIRMED in part.

9168 GRAND CANYON TRUST v. U.S. BUREAU OF RECLAMATION