San Luis & Delta-Mendota Water Authority et al v. Locke et al, No. 1:2009cv01053 - Document 202 (E.D. Cal. 2010)
Court Description: MEMORANDUM DECISION AND ORDER granting in part 158 Motion for TRO, signed by Judge Oliver W. Wanger on 2/5/10.
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1 UNITED STATES DISTRI CT CO URT 2 FOR THE EASTERN DISTRICT OF C ALIFORNIA 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 CONSOLID ATED SALMONI D CASES 1:09-CV- 01053 OWW DLB SAN LUIS & DELTA-MENDOTA WATER AU THORIT Y, et al. v. LOCKE, e t al. MEMORANDUM DEC ISION AND ORDER RE PLAIN TIFFS MOTION FOR TEMPORARY RESTRA INING ORDER STOCKTON EAST WATER DISTRICT , et a l. v. NOAA, et al. STATE WA TER CONTRACT ORS v. LOCKE, e t al. KERN COU NTY WATER AG ENCY, et al. v. UNITED STATES DEPARTME NT OF COMMER CE, et al. OAKDALE IRRIGATION D ISTRICT, et al. v . UNITED STA TES DEPARTME NT OF COMMER CE, et al. METROPOL ITAN WATER D ISTRICT OF CALIF ORNIA v. NAT IONAL MARINE F ISHERIES SER VICE, et al. Plaintif fs, San Luis & Delta Mendota Water Author ity 19 (the Au thority ) an d Westlands Water District 20 ( Westla nds ), move for a Temporary Restrai ning O rder 21 ( TRO ) against the implementation of Reasonable and 22 23 24 25 Prudent Alternative ( RPA ) Action IV.2.3 set for th in the Nati onal Marine Fisheries Service s ( NMFS ) June 4, 2009 Bio logical Opin ion ( 2009 Salmonid BiOp ), w hich 26 addresse s the impact s of the coordinated operatio ns of 27 the fede ral Central Valley Project ( CVP ) and St ate 28 1 1 Water Pr oject ( SWP ) on the Central Valley winte r-run 2 and spri ng-run Chinook salmon, Central Valley ste elhead, 3 Southern Distinct Po pulation Segment of Green Sturgeon , 4 5 6 7 and Sout hern Residen t Killer Whales ( Listed Spec ies ). Doc. 164 , filed Jan. 27, 2010. San Luis and West lands concurre ntly filed a motion for preliminary injun ction 8 raising additional g rounds for enjoining Action I V.2.3. 9 Doc. 164 . 10 11 12 13 14 15 Plaintif fs State Wat er Contractors; Metropolitan Water Di strict of So uthern California; and Kern C ounty Water Ag ency and Coa lition for a Sustainable Delt a joined the TRO motion. Doc s. 177, 179 & 181. Plaintiff s Oakdale Irrigation D istrict, et al., and Interven or 16 Californ ia Departmen t of Water Resources ( DWR ), the 17 operator of the SWP, filed statements of non-opposition. 18 Docs. 18 0 & 185. 19 Interven ors opposed. 20 21 22 23 24 27 28 Doc. 190 & 187. The TRO motion came on for hearing February 2, 2010, on short ened notice, in Courtroom 3 of the abovecaptione d Court. Th e parties were represented by counsel, as noted in the record in open court. 25 26 Fe deral Defendants and Defendan t I. BACKGROU ND Plaintif fs seek temp orary injunctive relief on th e grounds that: 2 1 (1) the 2009 Salmoni d BiOp is arbitra ry, ca pricious, 2 and cont rary to law because: 3 4 5 6 7 (a) NMFS allegedly c onducted an effects analysis that imp roperly over states impacts attributable to the c oordinated o perations of the CVP and SWP; 8 (b) NMFS failed to c learly define or 9 consiste ntly apply a relevant environmental 10 baseline ; 11 (c) NMFS failed to d istinguish between 12 13 14 15 discreti onary and no n-dis cret ionary CVP and SWP activiti es, which ov erstated the effects of coordina ted operatio ns of the Projects; 16 (d) RPA Action IV.2. 3 is arbitrary and 17 capricio us, because it is without factual or 18 scientif ic justifica tion and/or is not supported 19 by the b est availabl e science; and 20 21 22 23 24 25 (2) NMFS and the Uni ted States Bureau of Reclamat ion ( Reclam ation ) fail ed to comply with the Nationa l Environm ental Policy Act ( NEPA ) in issuin g and implemen ting the 200 9 Salmonid BiOp. Plaintif fs further c laim that the implementation of 26 Action I V.2.3 will c ause them continuing irrepara ble harm 27 and that the public interest and balance of hards hips 28 3 1 favor in junctive rel ief. 2 II. STANDARDS OF D ECISIO N 3 4 5 A. Temporar y Restrainin g Order. Injuncti ve relief, w hether temporary or permanent , is 6 an extr aordinary re medy, never awarded as of rig ht. 7 Winter v . Natural Re sources Defense Council, 129 S. Ct . 8 365, 376 (2008); Weinberg er v. Romero-Barce lo, 456 U.S. 9 305, 312 (1982). 10 11 12 13 14 15 Th e standard for relief applica ble to a temporar y restrainin g order is the same as for a prelimin ary injuncti on. Stuhlbarg Int l Sales Co ., Inc. v. John D. Brush & C o., 2 40 F .3d 832, 839 n.7 (9t h Cir. 2001). Four fac tors must be established by a preponderan ce 16 of the e vidence to q ualify for temporary injuncti ve 17 relief: 18 19 20 21 22 1. Likeliho od of succes s on the merits; 2. Likeliho od the movin g party will suffer irrepara ble harm abs ent injunctive relief; 3. The bala nce of equities tips in the m oving 23 parties favor; and 24 4. An injun ction is in the public interest. 25 Winter, 129 S.Ct. at 374; Am. Trucking Ass n v. City o f 26 Los Ange les, 5 59 F.3d 1046, 1052 (9th Cir. 2009). 27 28 4 1 B. Balancin g of the Har ms in ESA Cases. 2 The Supr eme Court held in TVA v. Hill, 437 U.S. 153, 3 194 (197 8), that Con gress struck the balance in f avor of 4 affordin g endangered species the highest of prior ities. 5 6 7 8 In adopt ing the Enda ngered Species Act ( ESA ), C ongress intended to halt an d reverse the trend toward sp ecies extincti on, wh atever the cost. Id. at 184 (emphasis 9 added). 10 Ass n of Home Builde rs v. Defenders of Wildlife, 551 U.S. 11 664, 669 -71 (2007); see a lso United States v. Oak land 12 Cannabis Buyers Co- op., 532 U.S. 483, 496-97 (2001); 13 14 15 16 TVA v. Hill cont inues to be viable . See Nat l Amoco Pr od. Co. v. V illage of Gambell, 480 U.S. 531, 5 43 n.9 (198 7). Winter d oes not modi fy or discuss the TVA v . Hill 17 standard . 1 18 general preliminary injunctive relief standard by making 19 that sta ndard more rigorous, Winter did not address, l et 20 alone ch ange, the Ci rcuit s approach to the balan cing of 21 hardship s where enda ngered species and their crit ical 22 23 24 25 26 Although Winte r al tered th e Ninth Circ uit s habitat are jeopardi zed. See Biodiversity Legal Found . v. Badgl ey, 30 9 F.3d 1166 , 1169 (9th Cir. 2 002) ( Congr ess removed the courts traditional equitable discret ion to balance parties com peting interests in ESA injun ction 27 1 28 Al th ou gh W in te r in vo lve d ES A- li st e d s pe ci es , th e Wi nt er dec is io n on ly a dd re ss ed cl ai ms u nd e r N EP A. 5 1 proceedi ngs); Nat l Wildlife Fed n v. Burlington N. R. R., 2 Inc., 23 F.3d 1508, 1510- 11 (9th Cir. 1994)(same) . 3 4 5 6 7 Two post -Winter dist rict cour t cases declined to balance the equities in evaluating requests for injuncti ve relief un der the ESA, applying TVA v. Hill s reasonin g. Or egon Natural Desert Ass n v. Kimbell, 2009 8 WL 16630 37, at *1 (D . Or. June 15, 2009); Animal Welfare 9 Inst. v. Martin, 588 F. Supp. 2d 70, 105-106 (D. Me. 10 2008). 11 12 13 14 15 TVA v. H ill an d related Ninth Circuit authorities foreclos e the distri ct court s traditional discre tion to balance equities und er the ESA. However, there i s no such bar in NEPA inj unction p roceedings. This case is at 16 the inte rsection of ESA and NEPA law, requiring 17 consider ation of mor e than the ESA. 18 19 20 21 C. Administ rative Proce dure Act. The Admi nistrative P rocedure Act ( APA ) requires Plaintif fs to show t hat NMFS s action was arbitr ary, 22 capricious, an abuse of discretion, or otherwise not in 23 accordan ce with law. 24 25 26 27 28 1. 5 U.S.C. § 706(2)(A). Deferenc e to Agency Expertise. The Cour t must defer to the agency on matters wit hin the agen cy s experti se, unless the agency complet ely failed t o address some factor, consid eratio n of which was 6 1 essentia l to making an informed decision. 2 Fed n v. NMFS, 422 F.3d 782, 798 (9th Cir. 2005). 3 court m ay not subst itute its judgment for that o f the 4 5 6 7 The agency c oncerning th e wisdom or prudence of the a gency s action. Rive r Runn ers f or Wilderness v. M artin, --- F.3d --- , 2010 WL 33 7337 *4 (9th Cir. June 10, 2009). In condu cting an APA review, the court must determin e whether th e agency s decision is founded on a ration al connection between the facts fo und and the choices made ... and whether [the age ncy] has com mitted a clear error of judgment . Ariz. Cattle Growers Ass n v. U.S. Fish & W ildlife, 273 F.3d 122 9, 1243 (9th C ir. 2001). The [agency s] action ... need be only a reason able, not th e best or most reasonab le, decision . Nat l Wildlife Fed. v. Burford, 871 F.2d 849 , 855 (9th C ir. 1989). 8 9 10 11 12 13 14 Nat l Wildl ife Id. 15 16 17 2. Record R eview. A court reviews a bi ological opinion based upon the 18 evidence contained i n the administrative record. 19 Arizona Cattle Growe rs Ass n, 273 F. 3d at 1245. 20 Judicial review unde r the APA must focus on the 21 administ rative recor d already in existence, not s ome new 22 23 24 25 record m ade initiall y in a reviewing court. Part ies may not use post- decision information as a new rational ization eith er for sustaining or attacking the 26 agency s decision. 27 F.2d 794 , 811- 12 (9th Cir. 1980). 28 Ass n of Pac. Fi sherie s v. EPA, 615 Exceptio ns to admini strative record review for 7 1 technica l informatio n or expert explanation make such 2 evidence admissible only for limited purpos es, an d tho se 3 exceptio ns are narro wly construed and applied. 4 5 6 7 Lands Council v. Powell, 395 F. 3d 1019, 1030 (9th Cir. 2005). Althoug h [any] fact ual inquiry is to be s earching an d careful the ultimat e standard of review is narro w. 8 court is not e mpowered to substitute its judgment for 9 that of the agency. 10 1159 (9t h Cir. 1980) . 11 The liberall y admit new evidence in an APA review cas e, 12 13 14 15 16 17 18 19 20 21 Asarco, Inc. v. EPA, 616 F.2d 11 53, Federal Courts cannot rout inely or because [w]he n a reviewing court considers evidence that was not before the a gency, it inevitably leads th e reviewin g court to s ubstitute its judgment for th at of the agen cy. 3. Id. at 1160. Best Ava ilable Scien ce. What con stitutes the best available science implicat es core agen cy judgment and expertise to which Congress requires th e courts to defer; a court sh ould be 22 especial ly wary of o verturning such a determinati on on 23 review. 24 Council, 462 U.S. 87 , 103 (1983) (a court must be at its 25 most def erenti al when an agency is making predictions 26 27 28 Baltimore G as & Elec. Co. v. Nat l Res. Defense within i ts area of s pecial expertise, at the fron tiers of science ). An agenc y has wide discretion to dete rmine 8 1 the best scientific and commercial data available for its 2 decision -making. 3 v. U.S. Bureau of Re clamation, 143 F.3d 515 , 523 n.5 ( 9th 4 5 6 7 Cir. 199 8). See S.W . Ct r. for Biological Di versi ty A decis ion about jeopardy must be ma de based on the b est science available at the time of the decision ; the agency cannot wait for or promise f uture 8 studies. See Ctr. for Biological Div ersity v. Rumsfel d, 9 198 F. S upp. 2d 1139 , 1156 (D. Ariz. 2002). 10 11 12 13 III. ANALYSIS A. Timely A pplication f or Relief. The Cour t analyzed a nd decided Federal Defendants 14 and Defe ndant Interv enors objections to temporar y 15 injuncti ve relief 16 delay pu rsuant to Ea stern District of California Local 17 Rule 65- 221(b), and overruled those o bjections for the 18 reasons stated in op en court, which are by this r eference 19 20 21 22 b ased on lack of timelin ess or undu e incorpor ated. The esse ntial reason for hearing the TRO motion o n shortene d time was t hat unexpected storm events i n 23 January and February 2010 have made and are likel y to 24 continue to make ava ilable a potential source of water 25 that cou ld enhance C VP and SWP supply, but which will be 26 lost u nless captur ed within days of the storms 27 28 occurren ce. This ur gency, in view of the harm al leged to 9 1 be visit ed upon all Plaintiffs and the human envi ronment, 2 includin g job losses , dislocation of farm workers and 3 other re sidents, low ering of the tax base, and pr ejudice 4 5 6 7 to commu nity services and schools; land fallowing and probable related adv erse effects on air quality; overdraf ting of grou ndwater with resulting land 8 subsiden ce and adver se effects on water quality; as well 9 as likel y rationing of municipal water required f or 10 public u se, ju stify the h earing and decisio n on these 11 motions. 12 13 14 15 Defendan ts also succ essfully objected to Plaintif fs attempt to incorpora te by reference in the TRO mo tion, all the voluminous p apers filed in support of Pla intiffs 16 pending motions for preliminary injun ction. 17 short ti me for a res ponse (three and one-half days, 18 includin g two weeken d days) afforded to Defendant s and 19 Defendan t-Inte rvenor s, it is unreasonable t o expect 20 complete and compreh ensive responses to expedited 21 22 23 24 Based on the motions, supported b y complex legal and factual a uthority that hav e been month s in and for which preparatio n continue s for a hear ing at least 30 days away. T he TRO 25 motions can be decid ed without detailed considera tion of 26 the argu ments raised only in the preliminary inju nction 27 papers. 28 10 1 B. Likeliho od of Succes s on the Merits. 2 1. ESA Clai ms. 3 Plaintif fs TRO moti on focuses on the argument th at 4 they are likely to s ucceed on their ESA claim tha t the 5 2009 Sal monid BiOp i s arbitrary, capricious, and contrary 6 7 8 9 to law b ecause the b ases provided in the re cord f or RP A Action I V.2.3 are wi thout factual or scientific justific ation and/or are not supported by the bes t 10 availabl e science. 2 11 River ( OMR ) revers e flows to levels no more neg ative 12 that -2, 500 to -5,000 cub ic feet per second ( cfs ), 13 dependin g on entrain ment levels. 14 15 16 17 18 19 648. Actio n IV.2.3 limits Ol d and Middl e 2009 Salmonid B iOp at Th e Action beg ins on January 1, and ends on June 15 or when the average daily water temperature at Mo ssdale is great er than 72°F (22°C) fo r one week, wh ichever occurs first. Plaintif fs maintain that NMFS based its rationale for 20 imposing this OMR ne gative flow restriction on ou tputs 21 from com puter model runs utilizing the so-called Parti cle 22 Tracking Model ( PTM ) which models the flow of i nert 23 24 25 26 27 28 particle s as they move wi thin a flowing bod y of w ater. A primary source on wh ich the 2009 Salmonid BiOp re lies to 2 Pl ai nt if fs i nc or po ra te by r ef er en c e a dd it io na l ar gu me nt s f ro m the p re li mi na ry i nj un cti on b ri ef c o nce rn in g th e 20 09 S al mon id B iO p s eff ec ts a na ly si s an d bas el in e de sc r ipt io n. Ho we ve r, a s dis cu ss ed abo ve , Fe de ra l De fe nd ant s an d De fe n dan t In te rv en or s di d not h av e an ade qu at e op po rt un it y to re sp on d to the se i nc or po ra te d ar gum en ts . 11 1 justify application of the PTM, is a 2008 study b y 2 Kimmerer & Nobriga. 3 to expre ss disclaime rs in that study which sugges t tha t 4 5 6 7 8 See AR 0 0122250. Plaintiffs poin t PTM is n ot an ideal method for modeling salmonid smolts, which ha ve complex behaviors and are strong swim ers. AR 00122 263. However, Kimmerer an d Nobriga conclude that PTM 9 results should be i ncluded in the design and ana lysis of 10 future s tudies of salmon survival rates. 11 Salmonid BiOp states that its analysis of flows a nd 12 13 14 15 Id. T he 2009 entrainm ent risk use d the output of PTM simulatio ns along with oth er evidence from salvage data, as well as mark and reca pture studie s, to reach conclusions about the 16 relation ship between reverse flows and entrainmen t. 17 Salmonid BiOp at 380-81. 18 NMFS rel ied exclusiv ely on the PTM studies to jus tify 19 Action I V.2.3 is dir ectly contradicted by Federal 20 Defendan ts expert. 21 22 23 24 2009 Plaintiffs sugge stion that See Doc. 190-4, Stuart Decl., at ¶8, who desc ribes other factors considered. On the present record, without furt her factual devel opment, there is a scientif ic dispute t hat prevents the Court substi tuting 25 its judg ment for a f inding that NMFS s reliance o n the 26 PTM is u nlawfu l, as it was neither clearly errone ous f or 27 the PTM to hav e been utilized, nor was PTM the ex clusi ve 28 12 1 justific ation for Ac tion IV.2.3. 2 establis hed a likeli hood of success on their ESA claim. 3 Plaintiffs have not yet 3 4 2. NEPA Cla im. 5 In the D elta Smelt C onsolidat ed Cases, it has been 6 decided that Reclama tion, as the action agency, v iolated 7 NEPA by failing to f ollow the prescriptions and 8 requirem ents of NEPA in connection with the 9 10 11 12 implemen tation of th e RPAs prescribed by the 2008 Delta Smelt Bi Op. S ee 1:09-cv- 0040 7, Doc. 399 ( Delta Smelt NEPA Dec ision ). Fo r reasons stated in the Delta Smelt 13 NEPA Dec ision and wh ich will be stated in a writt en 14 decision to be issue d in connection with the para llel 15 cross mo tions for su mmary judgment on NEPA issues in 16 these Co nsolid ated Salmonid Cases, Reclamation has 17 likewise violated NE PA by its total failure to in any way 18 19 20 21 comply w ith NEPA in connection with its implement ation of the 2009 Salmonid Bi Op RPAs. The Unit ed States f ailure to comply with NEPA ha s, 22 at the v ery least, preven ted the required r easona ble 23 evaluati on, analysis , hard look at, and disclos ure of 24 the cost s of impleme nting the 2009 Salmonid BiOp RPAs to 25 human he alth and saf ety, the human environment, a nd other 26 environm ents not inh abited by the Listed Species. 27 3 28 Th is i s no t me an t to pr ej ud ge t he dis po si ti on o f th is i ssu e in fut ur e pr oc ee di ng s. 13 1 C. Irrepara ble Harm. 2 1. Irrepara ble Harm to Plaintiffs. 3 The dist rict court m ay consider a wide range of 4 evidence of harm in a NEPA injunction proceeding. 5 it is un disputed tha t, as a result of storm event s in 6 7 8 9 Here, late Jan uary 2010, A ction IV.2.3 began to control operatio ns by way of its automatic imposition of a -50 00 cfs ceil ing on rever se OMR flows. Plaintiffs est imate 10 that for every day t hat Action IV.2.3 controls by 11 imposing a -50 00 cfs limit (as opposed to a more 12 restrict ive limit ba sed in entrainment triggers), 13 Reclamat ion s pumpin g output is reduced by 500 cf s per 14 15 16 day (or approximatel y 27,000 acre-fee t of water over a four wee k period). Doc. 166, Boardman Decl., at ¶16. DWR s pu mping output is also reduced when Action 17 18 IV.2.3 i s controllin g. 19 5. 20 Projects between Jan uary 20 and January 26, 2010 exceeded 21 90,000 A F, while com bined losses from January 27 through 22 February 5, 2010 may exceed 100,000 AF. 23 24 25 26 Doc. 78, Erlewine D ecl., at ¶¶ 4- Mr. Erlewine est imates that losses to the com bined Id. Although Federal Defend ants note that it is difficult to quantify the magnitu de and duration of this reduc tion given ch anging river flows, weather conditions, a nd 27 possible delta smelt actions, the United States does not 28 attempt to directly refute Plaintiffs figures. 14 See D oc. 1 190-3, M illiga n Decl., at ¶¶ 10-11. 2 arguendo , the estima tes provided by Boardman and Erlewine 3 are so e xcessive tha t they double actual loss, th e 4 5 6 7 Even a ssuming, figures are still si gnificant. It is un disputed tha t every acre-foot of pu mping that is foreg one during t his time of year is an acre-foot t hat 8 does not reach the S an Luis Reservoir where it ca n be 9 stored f or future de livery to users during times of peak 10 demand l ater in the water year. 11 12 13 14 15 It is re cognized tha t reduced deliveries caused by the 2009 Salmonid Bi Op make up only a portion (th e parties disagree as to the magnitude) of overall delivery reductio ns, to which severely dry hydrologic cond itions 16 and othe r legal cons traints have and will continu e to 17 contribu te. 18 pumping capacity dir ectly attributable to the 200 9 19 Salmonid BiOp will c ontribute to and exacerbate t he 20 currentl y catastroph ic situation faced by Plainti ffs, 21 22 23 24 However , it is also undi sputed that any l ost whose fa rms, busines ses, water service areas, and impacted cities and counties, are dependent, some exclusiv ely, upon CV P and/or SWP water deliveries . The 25 impacts overall of r educed deliveries include 26 irretrie vable resour ce losses (permanent crops, f allowed 27 lands, d estruction o f family and entity farming 28 15 1 business es); social disru ptio n and dislocation; a s well 2 as envir onmental har ms caused by, among other thi ngs, 3 increase d groundwate r consumption and overdraft, and 4 possible air quality reduction. 5 6 2. 7 An injun ction should not issue where enjoining 8 9 10 11 12 Potentia l Harm to th e Listed Species. governme nt action al legedly in violation of NEPA might actually jeopardize natural resources. Save Our Ecosyste ms, 74 7 F.2d 1240 , 1250 n.16 (9th C ir. 1984). The crux of Plaintif fs request for relief is the ir 13 contenti on that the Listed Species are not now pr esent in 14 the vici nity of the pumps in any significant numb ers. 15 is the e ndemic condi tion of these cases, the data is 16 sparse a nd usually u nreliable. 17 18 19 20 21 As The gove rnment s exp ert, Mr. Stuart, estimates th at for 2009 , 4,416, adu lt winter-run Chi nook salmon (includi ng 416 hatch ery fish) returned to the str eams and rivers o f the Centra l Valley to spawn. Stuart De cl. at 22 ¶3. 23 escapeme nt estimate of 2,850 fish in the 2008 wat er year. 24 Id. 25 cohort, Mr. Stuart c alculated a 2010 water year j uvenile 26 27 28 Thi s represents an increase over the adult Bas ed on fecund ity and sex ratio from the 20 08 producti on estimate ( JPE ) of 1,144,860 juvenile winterrun Chin ook. Id. Applying the BiOp s 2% I nciden tal T ake 16 1 2 3 4 5 6 7 8 Limit fo r juvenile w inter-run , that limit is 22,897. Id. At this time, the go vernment offers no population estimate s for spring-run juveniles, s teelhe ad smolts o r green st urgeon that are comparable to the winter- run JPE estimate s, nor does it provide any quantitative populati on measure i n locations of concern whatso ever. Accordin g to Reclama tion s own salvage records, 9 approxim ately 920 ta gged winter-run a nd 234 non-tagged 10 winter-r un, for a to tal of 1,154 fish, were salva ged in 11 January 2010. 12 13 14 15 See Doc. 1 89, Defendant Inte rvenor s Request for Judicial Notice, Exhibit 3 (Cen tral V alley Operatio ns Office Ch inook Salmon Report, January 2010) & Doc. 189 -11 (Obeji D ecl.). This constitutes 16 approxim ately five p ercent (5%) of the total inci dental 17 take lim it, or appro ximately one tenth of one per cent 18 (0.1%) o f the total JPE. 4 19 Mr. Stua rt opines th at approximately 6.8 percent of 20 all wint er-run salvage normally occurs during Dec ember; 21 22 23 24 25 26 27 28 13.9 per cent in Janu ary; 25.6 percent in February ; and 50 percent in March; wi th the remaining 2-3 percent 4 Pl ai nt if fs co un se l que st io ne d wh e the r wi nt er -r un w er e act ua ll y pr es en t in s alv ag e at a ll , su gg es ti ng f al l an d lat e- fa ll run C hi no ok s al mo n ar e t he o nl y sp e cie s th at c ou ld p os si bly b e sho wi ng u p as t ag ge d fis h in s al va g e. C ou ns el p ro du ce d no co mp et en t evi de nc e th at R ec la ma tio n s re co rd s ar e in co rr ec t. Ne ve rth el es s, eve n as su mi ng t ha t al l 1 ,1 54 f is h c oun te d as w in te r- ru n are a ct ua ll y win te r- ru n, t he a mo un t o f ac tu al s a lva ge m ea su re d in t he mo nt h of Jan ua ry i s ne gl ig ib le . 17 1 occurrin g during Apr il, May and June. 2 ¶4 & Exh . 1b. 3 shows th at, if 1,154 fish constitute 13.9 percent of the 4 5 6 7 8 9 Stua rt Dec l., a t Rough extrapolating from this info rmation salvage to be expect ed for the remainder of the y ear, the total sa lvage for th e year would be approximately 8,300 winter-r un juveniles , approximately 36% of and we ll below the Take Limit. Less tha n 1% of spri ng-run Chinook will have move d 10 through the Delta by the end of February, while 11 approxim ately 17% of the spring-run p opulat ion will mo ve 12 13 14 15 16 17 through by the end o f March (0.1% in Januar y, 0.2 % in February , and 17% in March). Id. It is hi ghly unlike ly that Pro ject pumping operations will have any eff ect on spring-r un through t he month of February. There ar e no populat ion estimates for Steelhead, yet 18 Mr. Stua rt estimates that 58% of the steelh ead po pulat ion 19 will hav e moved thro ugh the Delta by the end of F ebruary 20 as measu red by raw l oss counts at the facility. 21 22 23 24 will ris e to 90% by the end of March. Id. This He specific ally estimat es 37% of the species will mo ve through the Delta in February. Id. Salvage and loss of 25 Steelhea d prior to t he January precipitation even t has 26 been ver y low. 27 28 See id. at ¶6. Members of the South ern Distinct Population Segme nt 18 1 ( SDPS ) of North Am erican Green Sturgeon are pre sent 2 within D elta w aterways throughout the year. 3 estimate s that appro ximately 16% of Green Sturgeo n 4 5 6 7 Mr. Stuart salvage will occur b etween January and the end of March, with 6% in February followed by 8% in March. Id. at ¶ 5. Salvage is typically higher at the SWP during thi s 8 period. 9 data nor any indexed salvage estimates for SDPS G reen 10 Sturgeon and the Cou rt cannot find that the reque sted 11 injuncti ve relief wi ll threaten that species or i ts 12 However, there are no finite population critical habitat. 13 As to th e Southern Resident Killer Whale, w hose 14 15 Id. preferre d prey are F raser River salmon, there is no 16 evidence that the co ntemplated injunctive relief, which 17 would op erate, at th e most, only through February , the 18 period d uring which a temporary restraining order is 19 authoriz ed by law (2 8 days) would hav e any effect on the 20 Orca. 21 22 23 D. Balancin g of the Har ms/Public Interest. The thre at of jeopar dy to any of the Listed Speci es 24 by enjoi ning the ope ration of Action IV.2.3 appea rs 25 minimal under the no w-exi stin g conditions. 26 27 28 On th e other hand, th e harm to Pl aintiffs is substantial and irrepara ble, because the storm events that are no w 19 1 occurrin g and predic ted to occur in the next few days in 2 San Joaq uin/Sacramen to watershed will provide pot ential 3 water su pplies for s torage in the San Luis Reserv oir t hat 4 cannot b e replicated and will not recur. 5 IV. 6 7 CONCLUS ION If Recla mation had p rovided the required NEPA 8 analysis , it could h ave analyzed and evaluated no t only 9 the prot ection of th e species and their habitat, but 10 whether less harmful , protective, rea sonable and prude nt 11 alternat ives could h ave been adopted that also pr otect 12 13 14 15 humans a nd the human environment. No considerati on was given to measures th at were not more protective t han necessar y and which would have afforded additiona l water 16 supply t o water dist ricts, water user s, and communities 17 affected by continui ng drought conditions and wat er 18 shortage s. 19 20 21 22 23 24 The evid ence establi shes that CVP water not pumpe d for dive rsion to the San Luis Unit flows through the Delta an d out to the ocean. To preserve, for benefici al use, suc h water is i n the public interest, and pr otection of human health, saf ety and the affected communit ies also 25 serves t he public in terest. 26 irrepara ble and a te mporary restraining order is 27 justifie d as the balance of hardships, at t his po int i n 28 The injury to Plaint iffs is 20 1 time, ti ps decidedly in Plaintiffs favor. 2 signific ant that DWR , the co-operator of th e Proj ects, 3 does not oppose this relief. 4 5 6 7 It is Given Fe deral Defend ants failure to abide by NEP A s requirem ent that it take a hard look at the broad arra y of poten tial impacts to the environment (human an d 8 otherwis e) caused by implementation of the 2009 B iOp s 9 RPAs, en joining impl ementation of a measure, RPA Action 10 IV.2.3, that is caus ing irreparable harm to the h uman 11 environm ent served by the Plaintiff water agencies is 12 13 14 15 16 justifie d, so long a s jeopardy to species and the ir critical habitat and /or adverse modification does not occur. As time passes and M arch approaches, according to the 17 Stuart D eclaration, more significant potential harm to 18 the spec ies may occu r. 19 That wat er will not otherwise be preserved. 20 does not clearly pre dict how salvage rates may ch ange if 21 22 23 24 The storms are occurring now. negative flows excee d -5,000 cfs in February. The record As a result, the temporar y restraining ord er, which sh all issue sh all initiall y be for a period of fourteen (14) 25 days, su bject to a r enewal by Plaintiffs upon an 26 affirmat ive showing that neither the species nor their 27 critical habitat wil l be jeopardized by continued 28 21 1 2 3 4 5 6 7 8 9 injuncti on of RPA Ac tion IV.2.3. The Cour t in enjoini ng application of RPA Action IV.2.3, otherwise de fers to the agency s (Reclama tion) discreti on to conduc t Project operations. This T emporary Restrain ing Order sh all issue without prejudice t o Defendan ts future s howing that conditions have c hange d relative to jeopardy to the species and their hab itat. No party has offered comment or evidence on the i ssue 10 of bond. 11 public r esources, wh olly under the control of the action 12 13 14 15 Because th is case involves the manageme nt of agency, Reclamation, and because the injunctive relief is of limit ed duration, Plaintiffs shall post a bond in the amount o f $5,000 to secure the relief provided by law in 16 the even t it is dete rmined injunctive relief was 17 improvid ently issued . 18 19 20 21 22 23 24 25 26 27 28 ORDER 1. The United States Department of the Interior and its Bure au of Reclam ation and the National Marine and Fisherie s Service, a nd all those acting for, unde r or in concert with them, s hall be and are hereby restra ined and enjoined from implem enting Action IV.2.3 of the t he 20 09 Salmonid Biological Opinion RPA; 2. Plai ntiffs shall post a bond in the amount of $5,000; 22 1 3. This Tempo rary Restraining Order is issued 2 without prejudice to Defendants show ing changed 3 conditio ns that thre aten jeopardy to the species and 4 their cr itical habit at. 5 6 7 8 9 SO ORDER ED Dated: F ebruary 5, 2 010 /s/ O liver W. Wanger Oliver W. Wang er United States Distri ct Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23
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