Pac. Coast Fed'n of Fishermen's Ass'ns v. Raimondo

PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS, et al., Plaintiff, v. GINA RAIMONDO, et al., Defendants.

THE CALIFORNIA NATURAL RESOURCES AGENCY, et al., Plaintiffs, v. GINA RAIMONDO, et al., Defendants.

Nos. 1:20-cv-00431-JLT-EPG, 1:20-cv-00426-JLT-EPG

United States District Court, E.D. California

February 24, 2023

ORDER GRANTING REQUEST TO EXTEND INTERIM OPERATIONS PLAN; GRANTING IN PART AND DENYING AS MOOT IN PART REQUESTS FOR JUDICIAL NOTICE; GRANTING MOTION TO STRIKE SRS CONTRACTORS' REQUEST FOR ALTERNATIVE RELIEF; DENYING ALL OTHER ALTERNATIVE REQUESTS FOR RELIEF; AND STAYING CASE THROUGH DECEMBER 31 2023 (DOCS. 406, 416, 416, 415, 418, 444, 450)

ORDER GRANTING REQUEST TO EXTEND INTERIM OPERATIONS PLAN; GRANTING IN PART AND DENYING AS MOOT IN PART REQUESTS FOR JUDICIAL NOTICE; GRANTING MOTION TO STRIKE SRS CONTRACTORS' REQUEST FOR ALTERNATIVE RELIEF; DENYING ALL OTHER ALTERNATIVE REQUESTS FOR RELIEF; AND STAYING CASE THROUGH DECEMBER 31 2023 (Docs. 286, 294, 295 310)

I.INTRODUCTION

These related cases involve challenges to a pair of “biological opinions” (“BiOps”) issued by the National Marine Fisheries Service (“NMFS”) and the U.S. Fish and Wildlife Service (“FWS”) in 2019 pursuant to the Endangered Species Act (“ESA”), 16 U.S.C § 1531 et seq. The 2019 BiOps address the impact on various ESA-listed species of implementing an updated plan issued by the U.S. Bureau of Reclamation (“Reclamation”) and California's Department of Water Resources (“DWR”) for the long-term operation of the Central Valley Project (“CVP”) and the State Water Project (“SWP”) (collectively, “Water Projects” or “Proposed Action”). FWS's 2019 BiOp addresses Water Project impacts on the ESA-listed delta smelt; NMFS's 2019 BiOp addresses impacts on various other aquatic species, including several salmonid species discussed in this order.

Plaintiffs^[1] in both cases allege that NMFS and FWS violated the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, in various ways by concluding that the Water Projects would not jeopardize the continued existence of the ESA-listed species addressed in each biological opinion. (PCFFA Doc. 52; CNRA Doc. 51.)^[2] Both sets of Plaintiffs also bring claims against Reclamation under the ESA and the National Environmental Policy Act (“NEPA”), 42 U.S.C § 4321 et seq, challenging Reclamation's adoption and implementation of the Proposed Action (Id.)^[3] The State Plaintiffs' complaint in CNRA also alleges that Reclamation has violated the APA by failing to comply with the California Endangered Species Act (“CESA”), conformance with which State Plaintiffs maintain is required by various provisions of federal law. (CNRA Doc. 51 (“CNRA FAC”), ¶¶ 145-54.)

In late 2021 and early 2022, when this case was assigned to U.S District Judge Dale A. Drozd, the parties briefed a highly complex set of motions, including motions for voluntary remand without vacatur, a request made by Federal Defendants and State Plaintiffs to impose a stipulated package of interim injunctive relief measures in the CNRA case that would govern operations for the remainder of the 2022 “Water Year” (“WY”)^[4], and what was effectively a cross-motion filed by PCFFA to impose a competing package of interim injunctive measures. In a 122-page, detailed order issued on March 11, 2022, Judge Drozd granted the motion for voluntary remand without vacatur of the challenged BiOps, approved the stipulated interim injunctive relief package (the “2022 Interim Operation Plan” or “2022 IOP”), denied PCFFA's competing injunctive relief requests, and stayed the case through September 30, 2022. (Doc. 394 (“IOP Order”).)

The parties filed status reports toward the end of WY 2022. (Docs. 404-406.) Recognizing that the remand (and associated revisions to the BiOps and related documents) is not anticipated to be complete until early 2024 (see Doc. 406 at 3), Federal Defendants and State Plaintiffs now propose extending the IOP (the “IOP Extension” or “2023 IOP”), with some modifications, through December 31, 2023. (See generally Doc. 406.) The Court set a briefing schedule that permitted objections to the proposed IOP Extension, alternative requests for interim relief, and responses thereto. Although the Court endeavored to control the breadth of the briefing to ensure that a ruling could be timely issued, the pending motions and associated declarations and documentation are nonetheless voluminous. In addition, after the briefing closed, the Court requested updates regarding the anticipated classification of WY 2023. Finally, on February 13, 2023, the State Plaintiffs filed a notice informing the Court of further regulatory action relevant to the Court's decision making. (CNRA Doc. 320.) On February 14, 2023, PCFFA filed a response to that notice offering its positions on the implications of that notice for the pending motions (Doc 458), and one defendant intervenor filed a reply to PCFFA's response (Doc. 461). The Court has read and considered all the filings in light of the entire record. (Docs 404-406, 410- 426, 428-45, 447-448, 450-52, 456-58, 461; CNRA Docs. 299, 300, 307-311, 320.)

It would be impossible for any court to address all of the material presented to it here in a timely manner. Out of necessity, this order therefore addresses only the material and issues the Court finds necessary to the resolution of the pending requests. The Court is aware that its presentation of the issues is rough and clumsy in comparison to the nuanced presented in some of the briefs and declarations before the Court. Though these motions have been briefed over the course of many months, their complexity in relation to the need for swift decision has left the Court with little choice.

II. BACKGROUND^[5]

The Court provides here only that background information which is most essential to explaining and understanding its reasoning herein. The IOP Order provides additional, sometimes more detailed background. (See IOP Order at 3-14, 28-34.).

A. The Endangered Species Act (ESA)^[6]

“Under the ESA, the Secretary of the Interior and the Secretary of Commerce are charged with identifying threatened and endangered species and designating critical habitats for those species.” Nat. Res. Def. Council v. Jewell, 749 F.3d 776, 779 (9th Cir. 2014) (“NRDC v. Jewell”) (citing 16 U.S.C. § 1533). FWS and NMFS administer the ESA on behalf of the Departments of the Interior and Commerce, respectively. See 50 C.F.R. §§ 17.11, 222.101(a), 223.102, 402.01(b). Most pertinent to these cases is Section 7 of the ESA. 16 U.S.C. § 1536 (“Section 7”). Section 7(a)(2) imposes a procedural duty on the federal agencies to consult with the FWS or NMFS, depending on the protected species,^[7] to “insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification” of critical habitats of listed species. 16 U.S.C. § 1536(a)(2). An agency “action” is defined to mean all activities carried out by federal agencies, including, among other things, the granting of licenses and permits. See 50 C.F.R. § 402.02. “If a contemplated agency action may affect a listed species, then the agency must consult with the Secretary of the Interior, either formally or informally.” Am. Rivers v. NMFS, 126 F.3d 1118, 1122 (9th Cir. 1997).

Formal consultation results in the issuance of a BiOp by the relevant wildlife agency (FWS or NMFS). See 16 U.S.C. § 1536(b). If the BiOp concludes that the proposed action would jeopardize the species or destroy or adversely modify critical habitat, see id. § 1536(a)(2), then the action may not go forward unless the wildlife agency can suggest a “reasonable and prudent alternative[]” (“RPA”) that avoids jeopardy, destruction, or adverse modification. Id. § 1536(b)(3)(A). If a BiOp concludes that the proposed action (or the action implemented in conjunction with actions described in the RPA) will cause incidental taking of protected species, but that despite this taking, the action will not jeopardize the species or threaten critical habitat, the wildlife agency shall provide the Federal agency and the applicant concerned, if any with a written statement that-

(i) specifies the impact of such incidental taking on the species,

(ii) specifies those reasonable and prudent measures that the Secretary considers necessary or appropriate to minimize such impact,

(iii) . . ., and

(iv) sets forth the terms and conditions (including, but not limited to, reporting requirements) that must be complied with by the Federal agency or applicant (if any), or both, to implement the measures specified under clauses (ii) and (iii).

Id. § 1536(b)(4). This required written statement, with its “reasonable and prudent measures” (“RPMs”) and associated terms and conditions, is referred to as an “Incidental Take Statement” (“ITS”), which, if followed, exempts the action agency from the prohibition on takings found in run and spring-run and the CV steelhead.

Section 9 of the ESA. Id. § 1536(o); Aluminum Co. of Am. v. Adm'r, Bonneville Power Admin., 175 F.3d 1156, 1159 (9th Cir. 1999).

B. Listed Species at Issue

The Delta smelt (Hypomesus transpacificus) is a “small, two-to-three inch species of fish endemic to the San Francisco Bay/Sacramento-San Joaquin Delta Estuary [(“Delta”)].” San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 595 (9th Cir. 2014) (“San Luis v. Jewell”). In 1993, FWS concluded the Delta smelt's population had declined by ninety percent over the previous twenty years and listed it as a “threatened” species under the ESA.

Determination of Threatened Status for the Delta Smelt, 58 Fed.Reg. 12,854, 12,855-56 (Mar. 5, 1993).

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