The Consol. Delta Smelt Cases.

717 F.Supp.2d 1021

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.

May 27, 2010.

Audrey M. Huang, Paul S. Weiland, John J. Flynn, III, Robert C. Horton, Nossaman LLP, Irvine, CA, Christopher J. Carr, Morrison and Foerster LLP, San Francisco, CA, Daniel Joseph O'Hanlon, Hanspeter Walter, William Thomas Chisum, Kronick, Moskovitz, Tiedemann & Girard Eileen M. Diepenbrock, Jonathan R. Marz, Jon David Rubin,Diepenbrock Harrison, Brandon Murray Middleton, Damien Michael Schiff, James S. Burling, M. Reed Hopper, Pacific Legal Foundation, Brenda Washington Davis, Leslie R. Wagley, The Brenda Davis Law Group, Sacramento, CA, Charles Wesley Strickland, Brownstein Hyatt Farber and Schrek LLP, Santa Barbara, CA, Mark J. Mathews, PHV, Geoffrey M. Williamson, PHV, Martha F. Bauer, PHV, Michelle C. Kales, PHV, Steve O. Sims, PHV, Brownstein Hyatt Farber Schreck LLP, Denver, CO, Gary William Sawyers, Law Offices of Gary W. Sawyers, Harold Craig Manson, Thomas William Birmingham, Westlands Water District, Fresno, CA, for Plaintiffs.

James A. Maysonett, Srinath Jay Govindan, Charles Ray Shockey, Department of Justice, Ethan Carson Eddy, Govt., U.S. Dept. of Justice, Wildlife & Marine Resources Section, Washington, DC, Jonathan R. Marz, Diepenbrock Harrison, Sacramento, CA, Allison Ernestine Goldsmith, Attorney General's Office for the State of California, Cecilia Louise Dennis, Clifford Thomas Lee, California Attorney General's Office, San Francisco, CA, for Defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW RE PLAINTIFFS' REQUEST FOR PRELIMINARY INJUNCTION AGAINST IMPLEMENTATION OF RPA COMPONENT 2 (a/k/a Action 3) (Doc. 433)

OLIVER W. WANGER, District Judge.

I. INTRODUCTION

Plaintiffs, San Luis & Delta Mendota Water Authority (the "Authority") and Westlands Water District ("Westlands"), move for a preliminary injunction ("PI") against the implementation of Reasonable and Prudent Alternative ("RPA") Component 2 set forth in the United States Fish and Wildlife Service's ("FWS") December 15, 2008 Biological Opinion, 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 ) ("2008 Smelt BiOp" or "BiOp"). Doc. 433.

Plaintiffs State Water Contractors; Metropolitan Water District of Southern California; Kern County Water Agency and Coalition for a Sustainable; Stewart & Jasper Orchards, et al.; and the Family Farm Alliance join in the motion. Docs. 449, 451 & 453. Plaintiff-Intervenor Department of Water Resources ("DWR"), the operator of the SWP, partially joins. Doc. 452.

Federal Defendants and Defendant Intervenors opposed. Docs. 469, 473. Plaintiffs replied. Docs. 487, 491, 495, 497 & 507. The motion came on for an evidentiary hearing on April 2, 5, 6, and 7, 2010. Docs. 644, 652, 653 & 654. The parties were represented by counsel, as noted in the record.

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 interim relief/preliminary injunction are entered.

To the extent any finding 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

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." BiOp at 276-78.As required by law, the BiOp includes an 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. 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 279-85.

Component 1 (Protection of the Adult Delta Smelt Life Stage) consists of two Actions related to Old and Middle River ("OMR") flows.

• Action 1, which is designed to protect upmigrating delta smelt, is triggered during low and high entrainment risk periods based on physical and biological monitoring. Action 1 requires OMR flows to be no more negative than -2,000 cubic feet per second ("cfs") on a 14-day average and no more negative than -2,500 cfs for a 5-day running average. Id. at 281, 329.

• Action 2 of Component 1 is designed to protect adult delta smelt that have migrated upstream and are residing in the Delta prior to spawning. Action 2 is triggered immediately after Action 1 ends or if recommended by the Smelt Working Group ("SWG"). Flows under Action 2 can be set within a range from -5,000 to -1,250 cfs, depending on a complex set of biological and environmental parameters. Id. at 281-82, 352-56.

At issue here is Component 2 (Action 3) (Protection of Larval and Juvenile Delta Smelt), which requires OMR flows to remain between -1,250 and -5,000 cfs, beginning when Component 1 is completed, when Delta water temperatures reach 12 Celsius ("C"), or when a spent female smelt is detected in trawls or at salvage facilities. Id. at 282, 357-58. Component 2 remains in place until June 30 or when the Clifton Court Forebay water temperature reaches 25° C. Id. at 282, 368.

Component 3 (Improve Habitat for Delta Smelt Growth and Rearing) requires sufficient Delta outflow to maintain average mixing point locations of Delta outflow and estuarine water inflow ("X2") from September to December, depending on water year type, in accordance with a specifically described "adaptive management process" overseen by FWS. Id. at 282-83, 369.

Under Component 4 (Habitat Restoration), DWR is to create or restore 8,000 acres of intertidal and subtidal habitat in the Delta and Suisun Marsh within 10 years. Id. at 283-84, 379.

Under Component 5 (Monitoring and Reporting), the Projects gather and report information to ensure proper implementation of the RPA actions, achievement of physical results, and evaluation of the effectiveness of the actions on the targeted life stages of delta smelt, so that the actions can be refined, if needed. Id. at 284-85, 328, 375.

III. SUMMARY OF MOTION

Plaintiffs' request temporary injunctive relief on the following grounds:

1) the district court has already found that the United States Bureau of Reclamation ("Reclamation") failed to comply with the National Environmental Policy Act ("NEPA") in implementing the 2008 Smelt BiOp RPA; and.

2) the 2008 Smelt BiOp violates the ESA and is arbitrary, capricious, and contrary to law because:

a) various aspects of the BiOp's baseline and effects analysis are flawed, undermining the overall jeopardy conclusion, causing overstatement of the effects of the proposed action and imposition of overly-broad and overly-restrictive RPA Components;b) the severe OMR flow restrictions in RPA Components 1 and 2 are unsupported by the best available science and the data in the 2008 Smelt BiOp; and

c) Component 3 ("The Fall X2 Action") is arbitraryand capricious, because it is without factual or scientific justification and/or is not supported by the best available science, compelling a finding of likelihood of success on the merits.

Plaintiffs further claim that the implementation of RPA Components 1 and 2 will cause them continuing irreparable harm and that the public interest and balance of hardships favor injunctive relief.

RPA Component 1 has ended for the 2009-2010 water year, mooting any request for injunctive relief against its imposition. Component 3 is not set to begin until September, and Plaintiffs do not presently seek injunctive relief against its operation. Barring unforeseen circumstances, the parties' cross-motions for summary judgment will be heard and decided before September. Components 1 and 3 are not addressed in this decision.¹

Plaintiffs' injunction request has been modified over time. Originally, Plaintiffs sought an injunction against implementation of RPA Component 2 and enforcement of the incidental take limits in the BiOp. See Doc. 435 at 2-4.

• In place of Component 2, Plaintiffs sought to require Federal Defendants and DWR to use a Potential Entrainment Index ("PEI") to estimate cumulative entrainment loss of delta smelt. If the PEI estimate of cumulative loss is less than or equal to 7%, no pumping restrictions should be imposed; if the PEI estimate of cumulative entrainment loss exceeds 7%, FWS shall be responsible for setting OMR flows under the range specified in Component 2 of the BiOp. Doc. 435 at 3.

• Plaintiffs requested that the Incidental Take Statement ("ITS") be recalculated based on a higher Cumulative Salvage Index ("CSI") of 11.36 for adults. Doc. 435 at 4.

• In the alternative, if the above remedies are not imposed, DWR requested that that the Court impose the interim remedial operational conditions imposed following summary judgment in NRDC v. Kempthorne, 1:05-cv-1207. Doc. 452 at 2.

Although Plaintiffs never filed a written modification of their request for relief, at the evidentiary hearing Plaintiffs withdrew their request to enjoin enforcement of the ITS and their request to implement the PEI in place of RPA Component 2 of the RPA. 4/2/10 Tr. 90:4-12; 4/7/10 Tr. 243:23-244:8. Instead, Plaintiffs now propose that Component 2 be replaced by a flat -5,600 cfs ceiling on negative OMR flows during the remainder of the implementation period for Component 2. Id.; see 4/2/10 Tr. 208.

IV. STANDARD OF DECISION

Injunctive relief, whether temporary or permanent, is an "extraordinary remedy, never awarded as of...