In re Consol. Delta Smelt

812 F.Supp.2d 1133

The CONSOLIDATED DELTA SMELT CASES.

Nos. 1:09–CV–00407 OWW DLB

1:09–cv–00480–OWW–GSA

1:09–cv–00422–OWW–GSA

1:09–cv–00631–OWW–DLB

1:09–cv–00892–OWW–DLB.

United States District Court, E.D. California.

Aug. 31, 2011.

Audrey M. Huang, Paul S. Weiland, John J. Flynn, III, Robert C. Horton, Nossaman LLP, Irvine, CA, Christopher J. Carr, Morrison and Foerster LLP, Edgar B. Washburn, William M. Sloan, Arturo Jorge Gonzalez, Morrison & Foerster LLP, San Francisco, CA, Daniel Joseph O'Hanlon, Hanspeter Walter, Rebecca Rose Akroyd, William Thomas Chisum, Kronick, Moskovitz, Tiedemann & Girard, Eileen M. Diepenbrock, Jonathan R. Marz, David A. Diepenbrock, Diepenbrock Elkin LLP, Brandon Murray Middleton, Damien Michael Schiff, James S. Burling, M. Reed Hopper, Pacific Legal Foundation, Brenda Washington Davis, The Brenda Davis Law Group, Sacramento, CA, Charles Wesley Strickland, Brownstein Hyatt Farber and Schreck LLP, Santa Barbara, CA, Mark J. Mathews, PHV, Geoffrey M. Williamson, PHV, Martha F. Bauer, PHV, Michelle C. Kales, PHV, Brownstein Hyatt Farber Schreck LLP, Denver, CO, Harold Craig Manson, Westlands Water District, Gary William Sawyers, Law Offices of Gary W. Sawyers, Fresno, CA, Steve O. Sims, PHV, Brownstein Hyatt Farber Schreck LLP, Albuquerque, NM, Gregory K. Wilkinson, Steven M. Anderson, Steven George Martin, Best, Best & Krieger, LLP, Riverside, CA, Corinne Fratini, Morrison & Foerster, LLP, Walnut Creek, CA, for Plaintiff.

Allison Ernestine Goldsmith, Attorney General's Office for the State of California, Cecilia Louise Dennis, Clifford Thomas Lee, William Jenkins, California Office of the Attorney General, San Francisco, CA, for Intervenor Plaintiff.

Anna K. Stimmel, James A. Maysonett, Srinath Jay Govindan, Ethan Carson Eddy, Daniel Joseph Pollak, James A. Maysonett, Kevin William McArdle, U.S. Department of Justice, Washington, DC, Jonathan R. Marz, Diepenbrock Harrison, Robert Pendleton Williams, Charles Ray Shockey, William James Shapiro, United States Department of Justice, Sacramento, CA, for Defendant.Doug Andrew Obegi, Katherine Scott Poole, Natural Resources Defense Council, San Francisco, CA, Trent William Orr, Trent W. Orr, George Matthew Torgun, Earthjustice, Oakland, CA, for Intervenor Defendant.Roderick Walston, Best Best & Krieger LLP, Walnut Creek, CA, for Amicus.

FINDINGS OF FACT AND CONCLUSIONS OF LAW RE PLAINTIFFS' REQUEST FOR INJUNCTIVE RELIEF AGAINST IMPLEMENTATION OF RPA COMPONENT 3 (Action 4) (Doc. 900)

OLIVER W. WANGER, District Judge.

I. INTRODUCTION

Plaintiffs State Water Contractors (“SWC”), Metropolitan Water District of Southern California (“MWD” or “Metropolitan”), Kern County Water Agency (“KCWA”) and Coalition for a Sustainable Delta (“Coalition”), San Luis & Delta Mendota Water Authority (the “Authority”) and Westlands Water District (“Westlands”) (collectively herein “Plaintiffs”), seek an injunction prohibiting the implementation of Reasonable and Prudent Alternative (“RPA”) Component 3, Action 4 (the “Fall X2 Action”) set forth in the United States Fish and Wildlife Service's (“FWS”) December 15, 2008, biological opinion (“BiOp”), which addresses the impacts of the coordinated operations of the federal Central Valley Project (“CVP”) and State Water Project (“SWP”) on the threatened delta smelt ( Hypomesus transpacificus ). Doc. 900. The California Department of Water Resources (“DWR” or “Plaintiff Intervenors”) joined in Plaintiffs' motion. Doc. 905. Federal Defendants and Defendant Intervenors opposed. Doc. 948. An evidentiary hearing on the motion was held on July 26, 27, 28, and 29, 2011. Docs. 998–1001. The parties were represented by counsel, as identified on the record.

Plaintiffs and Defendants submitted independent, lengthy proposed findings of fact and conclusions of law. Docs. 1004 & 1005. DWR and Plaintiffs also submitted notices of disapproval of Defendants' proposed findings of fact and conclusions of law. Docs. 1008 & 1009.

After consideration of the testimony of the witnesses, the exhibits received in evidence, the written briefs of the parties, oral arguments, and the parties' proposed findings of fact and conclusions of law, the following findings of fact and conclusions of law concerning the motion for injunctive relief are entered.

To the extent any of the findings of fact may be interpreted as a conclusion of law or any conclusion of law may be interpreted as a finding of fact, it is so intended.

II. BACKGROUND

A. The Challenged Action.

The 2008 Smelt BiOp, prepared pursuant to Section 7 of the Endangered Species Act (“ESA”), 16 U.S.C. § 1536(a)(2), concluded that “the coordinated operations of the CVP and SWP, as proposed, are likely to jeopardize the continued existence of the delta smelt” and “adversely modify delta smelt critical habitat.” Ex. 1 ¹ (“BiOp”) at 276–78. As required by law, the BiOp includes the RPA designed to allow the projects to continue operating without causing jeopardy to the species or adverse modification to its critical habitat. Id. at 279–85. The RPA includes various operational components designed to reduce entrainment of smelt during critical times of the year by controlling exports out of and water flows into the Delta. Id.

At issue in this case is Component 3 (Action 4), which is designed to improve habitat for delta smelt growth and rearing, and requires sufficient Delta outflow to maintain a monthly average location of two parts per thousand salinity (“X2”) no greater (more eastward) than 74 kilometers from the Golden Gate Bridge in “wet” water years and 81 kilometers from the Golden Gate Bridge in “above normal” water years. Id. at 282–83, 369. The average monthly location of X2 in the fall must be maintained in September and October (in November, the Fall X2 Action requires the Projects to adjust their upstream reservoir releases to prevent the storage of inflow) in accordance with an “adaptive management process” to be overseen by FWS. Id. at 282–83. The estimated cost to water users is 670,000 acre feet (“AF”) of water if 2012 is a critically dry or dry year, or 300,000 AF if 2010 is a below normal or above normal year.

B. Relevant Prior Rulings.

A December 14, 2010 Memorandum Decision Re Cross Motions for Summary Judgment (“12/14/10 MSJ Decision”), Doc. 757, San Luis & Delta–Mendota Water Auth. v. Salazar, 760 F.Supp.2d 855 (E.D.Cal.), rejected some of Plaintiffs' challenges to the BiOp's rationale for the Fall X2 action, but found that the BiOp's X2 analysis was flawed in two critical respects. The rationale for the action rested in large part on a comparison of runs from two different computer models for Project operations, Calsim II and Dayflow. The Decision found that, in the absence of calibration of the two models, which was not performed, “the Calsim II to Dayflow comparison has the potential to introduce significant, if not overwhelming, bias to the analysis that the BiOp nowhere discussed or corrected.” Id. at 922. The X2 action was remanded to the agency for further consideration of the implications of this error to the BiOp's findings. Id. at 913.

The Decision further held that the BiOp violated the Administrative Procedure Act's (“APA”) requirement that FWS “examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made,” Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983), as well as FWS's own Consultation Handbook implementing the ESA, which requires “a thorough explanation of how each component of the [RPA] is essential to avoid jeopardy and/or adverse modification,” ESA Handbook at 4–43, because the BiOp “fail[ed] to explain why it is essential to maintain X2 at 74 km and 81 km respectively, as opposed to any other specific location.” Id. at 922–23. The practical result of the X2 Action is to allow large volumes of Project water to escape into the ocean.

A June 24, 2011 memorandum decision addressed Federal Defendants' and Defendant Intervenors' objection that this Court lacked jurisdiction to consider Plaintiffs' request for injunctive relief because an appeal was pending on related issues. Relying on Natural Resources Defense Council v. Southwest Marine Inc., 242 F.3d 1163, 1164 (9th Cir.2001), for the governing standard, the June 24, 2011 Decision found that Southwest Marine stands generally for the following propositions:

(1) A district court may act to preserve the status quo while an appeal is pending.

(2) The status quo is measured at the time the appeal is filed.

(3) The district court may only act to effectuate the underlying purposes of the original judgment and may not materially alter the status of the appeal or change the core questions before the appellate panel.

(4) It is impermissible to alter the status of the case on appeal by taking further action that cannot be undone by the appeal. In other words, the district court's post-appeal action must be grounded upon an issue that will receive a full and fair hearing before the appellate panel, leaving the burdened party's substantial rights unaffected if a reversal is issued.

Doc. 930 at 8. These principles apply to this case in the following way:

The first step is to determine the status quo. Federal Defendants point out that the BiOp and its RPA has been remanded but not vacated. Therefore, they argue that the status quo is operation of the projects pursuant to the RPA (including the Fall X2 Action) as described in the BiOp. This position is a material distortion of the record and cannot be adopted for two reasons. First, Plaintiffs indicated their intent to move for injunctive relief against the Fall X2 Action long before Final Judgment was entered or the appeal was filed. Defendants strenuously resisted immediate injunctive proceedings on the Fall X2 Action when a hearing was requested by Plaintiffs, on the ground that, at the...