Coalition for a Sustainable Delta et al v. Carlson et al, No. 1:2008cv00397 - Document 251 (E.D. Cal. 2011)

Court Description: MEMORANDUM DECISION GRANTING Request For Approval of Consent Decree, signed by Judge Oliver W. Wanger on 4/5/2011. (The motion to approvethe Settlement Agreement 230 is GRANTED. Moving Parties shall submit a proposed form of order consistent with this memorandum decision within five (5) days following electronic service.) (Gaumnitz, R)

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Coalition for a Sustainable Delta et al v. Carlson et al Doc. 251 1 UNITED STATES DISTRI CT CO URT 2 FOR THE EASTERN DISTRICT OF C ALIFORNIA 3 4 COALITIO N FOR A SUST AINABLE DELTA, e t al., 5 6 7 8 9 10 11 12 1:08-cv-00397 OWW GSA MEMORANDUM DEC ISION GRANTING REQUE ST FOR APPROVAL OF CONSENT DECREE (DOC. 2 30). Plaintiff s, v. JOHN MCC AMMAN, in hi s official capacity as the Dire ctor of the Californ ia Departmen t of Fish and Game, Def endant, CENTRAL DELTA WATER AGENCY, et al., 13 Defendant-Intervenors, 14 15 CALIFORN IA SPORTFISI NG PROTECTION ALLIANCE , et a l., 16 Defendant-Intervenors. 17 18 19 20 21 22 I. INTRODUCTION On Janua ry 29, 2008, the Coalition for a Sustaina ble Delta, B errenda Mesa Water District, Lost Hills W ater District , Wheeler Ri dge-Maric opa Water Storage Distric t and Dee Dillon ( Pla intiffs ) filed suit against 23 Defendant John McCamman, in his Official Capacity as 24 Director of the Cali fornia Department of Fish and Game 25 ( State Defendant o r DFG ), alleging that State 26 Defendan t s enforcem ent of California s striped b ass 27 sport fi shing regula tions, Cal. Code Regs. tit. 14, § 28 1 Dockets.Justia.com 1 5.75, ca use a stripe d bass population that is hig her than 2 it other wise would b e in nature in the Sacramento -San 3 Joaquin Delta and as sociated rivers and tributari es, 4 5 6 7 which ca uses take of Sacramento River winter-run Chinook salmon, Cent ral Valley spring-run C hinook salmon, Central Valley steel head, and delta smelt (collec tively, 8 Listed Species ), i n violation of section 9 of t he 9 Endanger ed Species A ct ( ESA ), 16 U.S.C. § 1538. 10 Defendan t disputes t hat DFG s enforcement of the striped 11 bass spo rt fishing r egulations causes unlawful t ake. 12 13 14 15 State On May 2 9, 2008 and July 24, 2008, respectively, Central Delta Water Agency, South Delta Water Age ncy, Honker C ut Marine, I nc., Rudy Mussi, and Robert S ouza 16 (collect ively, Cent ral Delta Parties ); and the 17 California Spo rtfishing Protection Alliance, California 18 Striped Bass Associa tion, and the Northern Califo rnia 19 Council of the Feder ation of Fly Fishers (collect ively, 20 CSPA ) were granted permission to intervene as o f right, 21 22 23 24 provided that they s trictly limit their participation to issues a bout which t hey can provide unique inform ation and/or a rguments. D ocs. 32 & 41. Specifically, the 25 Central Delta Partie s argue that the striped bass sport 26 fishing regulations are necessary to achieve the doubling 27 goals fo r stri ped bass prescribed by the Central Valle y 28 Project Improvement Act ( CVPIA ). 2 1 A July 2 1, 2010 Memo randum Decision denied 2 Plaintif fs motion f or summary judgment that Stat e 3 Defendan t s conduct violated ESA § 9 and that the Central 4 5 6 7 Delta Pa rties CVPIA affirmat ive defense was invalid. Doc. 168 . That deci sion also rejected Plaintiffs theory that pro of of reason ably certain threat of immine nt harm 8 to a sin gle member o f any of the Listed Species w as 9 sufficie nt to establ ish a Section 9 violation in this 10 case. 11 12 13 14 15 I d. at 6-18. Over a p eriod of mor e than two months, Plaintiffs and State De fendants (co llectively, Moving Parties ) engaged in arms- length settl ement negotiation s. Defendant- Interven ors claim to have been excluded from the 16 negotiat ions until l ate in the process, after a t entative 17 agreemen t had alread y been reached. 18 Interven ors declined to sign the settlement and m ade a 19 counter- offer that w as not adopted by the Moving Parties. 20 The Movi ng Parties n ow move for the entry of a or der 21 22 23 24 Defendant- approvin g their Sett lement Agreement under the st andards applicab le to consen t decrees. Doc. 230. Interven ors object t o approval. Doc. 238. Defend ant- Docs. 233 & 234. Moving 25 Parties filed a repl y. In response to the 26 Court s request, Def endant Intervenors submitted propo sed 27 language concerning their participation in furthe r 28 administ rative proce edings before DFG and in rela ted 3 1 regulato ry proceedin gs. 2 advocate s the use of alternative language. 3 Plaintif fs joined St ate Defendant s r equest. Doc. 248. State Defenda nt Doc. 249. Doc. 250 . 4 II. SETTLEME NT AGR EEMENT 5 6 The Movi ng Parties e ntered into a Settlement 7 Agreemen t on Februar y 9, 2011 that provides for t he stay 8 of this case subject to certain conditions to ena ble DFG 9 10 11 12 to consi der a new ru le. First, State Defendant, in consulta tion with th e National Marine Fisheries S ervice ( NMFS or NOAA Fis heries ) and the U.S. Fish an d 13 Wildlife Service ( F WS ), is required to develop a 14 Regulat ory Proposal based on the best available 15 scientif ic informati on, to be submitted to the California 16 Fish and Game Commis sion ( Commission ) with a 17 recommen dation that the Commission modify the str iped 18 19 20 21 bass spo rt fishing r egulation to, among other thi ngs, modify t he bag and s ize limits to reduce striped bass predatio n on the lis ted species. Id. at ¶ 2(a). The 22 Regulato ry Proposal must also include an adaptive 23 manageme nt plan desi gned to determine the effect of any 24 changes in the regul ations to striped bass abunda nce, 25 striped bass predati on on the listed species, 26 27 28 mesopred ator release , and abundance o f the listed species. Id. at ¶ 2(b). 4 1 Within 3 0 days follo wing approval of the Settleme nt 2 Agreemen t, State Def endant shall solicit input an d 3 scientif ic informati on from Plaintiffs and Defend ant- 4 5 6 7 Interven ors. Id. at ¶ 3. State Defendant shall then circulat e a draft Re gulatory Proposal to Plaintif fs and Interven ors within 3 0 days of the last input meet ing. 8 Id. at ¶ 4. 9 to provi de written c omments. 10 recommen d modificati ons to the Regula tory Proposa l, State 11 Defendan ts then have 30 days to reach agreement o n an 12 13 14 15 16 P lainti ffs and Intervenors will have 10 days alternat ive proposal . Id. at ¶ 5. Id. at ¶ 6. If Plaintif fs If NMFS, FWS, or Plaintif fs object to the final Regulatory Proposa l, the stay wil l be lifted and the Court will set a new pretrial and tria l date . Id. at ¶ 7. 17 If State Defendants and Plaintiffs agree on the 18 Regulato ry Proposal, State Defendants shall circu late a 19 draft st aff report i n support of the Regulatory P roposal 20 within f ifteen (15) days of receipt of Plaintiffs 21 22 23 24 written proposal. If Plaintiffs obje ct to the content of the repo rt, the stay will be lifted, and the case shall proceed to trial. Id. at ¶ 8. 25 If Plain tiffs do not object to the drat staff rep ort, 26 State De fendant will recommend at the next public meeting 27 of the F ish and Game Comm ission that the Co mmission adopt 28 the Regu latory Propo sal. Id. at ¶ 9. 5 A final st aff 1 report w ill accompan y the recommendation. 2 Settleme nt Agreement provides that the final draf t report 3 shall n ot differ ma terially from the draft staff 4 5 6 7 report. Id. Id. The If Plaintiffs believe the final staff report d iffers mater ially from the draft, Plainti ffs shall ha ve 10 days t o object, and State Defendant s shall 8 have 10 days to revi se the report accordingly. 9 the Plai ntiffs still believe the final report differs 10 material ly from the draft report, the Moving Part ies 11 shall jo intly reques t a determination from the Co urt 12 13 14 15 Id. If whether the revision s constitute a material alter nation. Id. If the Co urt finds a material alterati on and Stat e Defendan ts refuse to revise the repor t, Pla intiffs or 16 State De fendants sha ll notify the Court, and the Court 17 shall li ft the stay. 18 Id. If there are no such objections and the Commissio n 19 takes fi nal action o n the Final Regulatory Propos al (by 20 approvin g, modifying and approving, o r rejecting the 21 22 23 24 25 amended regulation), Plaintiffs shall promptly ta ke all necessar y steps to d ismiss their First Amended Co mplaint with pre judice. Id. If the C ommission do es not take final action with in 26 twelve m onths and Pl aintiffs believe State Defend ant has 27 not acte d in good fa ith, Plaintiffs may petition the 28 Court to lift the st ay. Id. at ¶ 11. 6 If t he Com missi on 1 does not take final action within twenty-one months, t he 2 parties will provide notice to the Court, after w hich the 3 Court sh all lift the stay. 4 5 6 7 State Defendant can s eek an extensio n upon a sho wing of good cause. Id. at ¶ 12. The Cour t is not req uired to approve an extension . Plaintif fs agree not to participate in or fund an y 8 lawsuit against Stat e Defendant based on the same 9 underlyi ng facts and legal theories. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Id. a t ¶ 14 . The Sett lement Agree ment also contains the follow ing confiden tiality prov isions: State De fendants, In tervenors, and Plaintiffs agree th at all docum ents, oral statements, and other co mmunications rendered as part of settleme nt discussio ns (1) are confidential and shall no t be made pu blicly available prior to the subm ission of th e Final Regulatory Proposal to the C ommission ex cept as otherwise required by law a nd (2) are n o longer confidential followin g submission of the Final Regulatory Proposal to the Comm ission except as otherwise required by law. Failure to agree to the confiden tiality requ irement set forth in this paragrap h shall prec lude the party that declines to agree with the co nfidentiality requirement from par ticipating i n the meetings de scribed in paragrap h 3, from re ceiving or commenting on the draft Re gulatory Pro posal described in paragrap hs 4 or 5 or any modification of the draft Re gulatory Pro posal, or receiving the draft st aff report d escribed in paragraph 8. Id. at ¶ 16 (e mphasi s added). As Defendant-Inter venor s refused to sign the Settlement Agreement, they wi ll not be inclu ded in any o f the scoping meetings descri bed in paragrap h 3, nor wil l they receive or be able to comment 7 1 upon the draft Regul atory Pro posal and/or draft s taff 2 report. 3 Defendan t-Inte rvenor s fro m otherwise partic ipating in the 4 regulato ry process a s permitted by state law. 5 The Sett lement Agree ment provides that State 6 7 The settlem ent agreement does not preclu de Defendan t will set a side $1,0 00,000.00 to support 8 research projects re garding predation on listed s pecies 9 in the D elta. 10 selected by an inde pendent scientific review pan el 11 composed of: 12 13 14 15 16 17 18 19 20 21 One o r more research projects will be Marty Gingras, Charles Hanson, Denn is Murphy, Pat Coulston, and a fifth member to be determi ned jointly by Plaintiff s and the State Defendants. Id. at ¶ 17. III. STANDARD OF DE CISION The ini tial decisio n to approve or reject a settleme nt proposal is committed to the sound dis cretion of the t rial judge. S.E .C. v. Randolph, 7 36 F.2 d 525 , 529 (9th Cir. 1984)( quoting Officers for Justice v. Civil 22 Serv. Co mm n, 688 F.2d 615, 625 (9th Cir. 1982)). 23 discreti on is not un bridled, however. 24 decree i s unfair, in adequate, or unreasonable, it ought 25 to be ap proved. 26 27 28 Th is Unless a c onsent Id.; see also Sierra Club, Inc. v. Electron ic Controls Design, Inc., 909 F.2d 1350, 1355 (9th Cir . 1990) ( [A ] district court should enter a 8 1 proposed consent jud gment if the court decides th at it is 2 fair, re asonable and equitable and does not violate the 3 law or p ublic policy . ). 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 The Moving Parties and Defendan t Intervenor s also point to language from Officers for Justice, whi ch involved approv al of a cla ss action s ettlement un der Federal Rule of Civil Pro cedure 23: [A] cour t's intrusio n upon what is ot herwis e a private consensual a greement negotiated between the part ies to a law suit must be limited to the extent n ecessary to reach a reasoned judgment that the agreement is not the product of fr aud or overr eaching by, or collusion between, t he negotiat ing parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all conc erned. Therefore, the settleme nt or fairne ss hearing is not to be turned i nto a trial or rehearsal for trial on the meri ts. Neither the trial court nor thi s court is to reach an y ultimate conclusions on the cont ested issues of fact and law which underlie the merits of the dispute, for it is the very uncertainty of outcome in litigation and avoi dance of was teful and expensive litigati on that indu ce consensual set tlemen ts. The prop osed settlem ent is not to be judged against a hypothetic al or speculative measure of what mig ht have been achieved by the negotiat ors. 688 F.2d at 625 (emp hasis added). Although Rule 23 is inapplic able here, t he Ninth Circuit has ap plied the 23 reasonin g of O fficers for Justice to non-class action 24 consent judgments. 25 913 F.2d 576, 586 (9 th Cir. 1990)(inquiring into whether 26 the agre ement was th e product of fraud or overre aching 27 by, or c ollusi on between, the negotiating parties, as 28 See U nited States v. St ate of Or., 9 1 part of approval of Columbia River Fish Managemen t Plan). 2 The burd en is on the party objecting to a settlem ent. 3 Id. (ack nowled ging t hat other circuits impose upo n the 4 5 6 7 objectin g party a h eavy burden of demonstrating that the decree i s unreasonab le ). Moving P arties cite authority that a court should 8 afford d eference to a government agency settling a matter 9 within i ts area of e xpertise. 10 Circuit held in Randolph, 736 F.2d at 529, that courts 11 should p ay deference to the judgment of the gover nment 12 13 14 15 For example, the N inth agency w hich has neg otiated and submitted the pro posed judgment . Moving P arties admit that existing ca selaw refers o nly to agenc ies of the federal government , but 16 suggest, without cit ing any authority, that the same 17 principl e can be ext ended to [] State [agencies]. 18 230-1 at 6. 19 Plaintif fs cited ca ses, United States v. Cannons Eng g 20 Corp., 8 99 F.2 d 79, 84 (1st Cir. 1990). 21 22 23 24 25 26 27 28 Doc. T his assertion is undermined by another of Cannons concerne d the approval of a consent decree in a CERCLA case. T he First Cir cuit acknowledged the general rule that it is the poli cy of the law to encourage settleme nts. Id. That pol icy has part icular force where, as here, a govern ment actor c ommitted to the protection of the p ublic intere st has pulled the laboring oar in c onstructing the proposed settlement. While th e true measu re of the deference due 10 1 depends on the persu asive power of the agency's proposal and rationa le, given whatever practical consider ations may i mpinge and the full panoply of the a ttendant cir cumstances, [citation] the district court must refrain from second-guessing the Exec utive Branch. 2 3 4 5 Id. 6 Executiv e Branch age ncies stems in part from a re spect 7 for the balance of p owers between the vario us branches of 8 9 10 11 Def erence to th e settlement preferences of f ederal the fede ral governme nt. Plaintiffs have no autho rity to support a rule that a federal court must afford d eference to state agencies. As Defendant Intervenors poin t out, 12 the sett ling state a gency, DFG, is no t charged wi th the 13 task of implementing either the ESA or the CVPIA. 14 15 16 17 18 19 20 More gen erally, a c onsent decree must spring fro m and serv e to resolve a dispute within the court's subject- matter juris diction. Local No. 93 , Inte rn. Ass'n of Firefighter s, AF L-CIO C.L.C. v. Ci ty of Clevelan d, 478 U.S. 501, 525 (1986). [C]onsiste nt with this req uirement, th e consent decree must come wi thin the 21 general scope of the case made by the pleadings, and must 22 further the objectiv es of the law upon which the 23 complain t was based. 24 quotatio ns omitted). 25 26 27 28 Id. (internal citations an d A court may adopt a Consent Decree over the oppositi on of non-settlin g parties. It has n ever been su pposed that one partywhether an original party, a party that was 11 1 joined l ater, or an intervenor-could preclu de other pa rties from s ettling their own disputes and ther eby withdraw ing from litigation. Thus, while an intervenor is entitled to present evidence and have it s objections heard at the hearings on whether to approve a consent decree, it does not have pow er to block the decree merely b y withholdin g its consent 2 3 4 5 6 Id. at 528-529 ; see also S. Cal. Edison v. Lynch, 307 7 F.3d 794 , 806- 07 (9th Cir. 2002) ( An intervenor does not 8 9 10 have the right to pr event other parties from ente ring into a s ettlem ent agreement. ). 11 12 IV. DISCUSSION 13 The Cons ent Decree D oes Not Require State Defenda nt to Draft or Promulga te an Unjustified Regulatory Proposal . 14 Defendan t Intervenor s argue that the Settlement 15 16 17 18 19 A. Agreemen t is not rea sonable because it requires a substant ive re sult that is not supported by the best availabl e science. Specifically, Defendant Inter venors point to Paragraph 2 (a) which provides that Stat e 20 Defendan t shall deve lop a proposal based upon the best 21 availabl e scientific information to modify the st riped 22 bass spo rt fishing r egulation to reduce striped b ass 23 predatio n on the lis ted species in the form of a 24 25 26 27 28 Regulat ory Proposal that is to consist of changes to title 14 , section 5. 75(b) and (c) (bag and size l imit, respecti vely) of the California Code of Regulations to reduce s triped bass predation on the listed speci es. 12 1 Settleme nt Agreement ¶ 2(a) (emphasis added). 2 Interven ors argue th at this objective can only b e 3 accompli shed by a re duction in striped bass numbe rs. 4 Doc. 233 at 22. 5 It is un necessary to delve into the m erits of the 6 7 De fendant case whe n considerin g approval of a consent decre e. The 8 terms of the Settlem ent Agreement speak for thems elves. 9 The Sett lement Agree ment calls for State Defendan t to 10 develop the describe d Regulatory Proposal, but St ate 11 Defendan t s failure to satisfy this condition pre cedent 12 13 14 15 only lea ves Plaintif fs the option to proceed with this lawsuit. Nothing in the Settlement Agreement req uires State De fendant to d raft, let alone promulgate, s uch a 16 Regulato ry Proposal if doing so would be inconsis tent 17 with the best availa ble science or if it otherwis e 18 violates the law. 19 requires that the Re gulatory Proposal reduce stri ped bass 20 predatio n on the lis ted species by reducing strip ed bass 21 N othing in the Settlement Agre ement numbers. 22 23 24 25 26 B. The Sett lement Agree ment Does Not Undermine the Federal Interest Emb odied in the CVPIA. The Cent ral Delta Pa rties emphasize that nearly twenty ( 20) years ag o in the CVPIA, Pub. L. 102-575, 1 06 27 Stat. 46 00, Title 34 , 106 Stat. 4706-31 (1992), Congre ss 28 deemed striped bass populations in the Delta worthy of 13 1 protecti on and resto ration to a specific level as yet 2 unattain ed. 3 (b)(1)(B ); (b)(8); ( 9), (14), (18), (19), and (21 ); 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S ee CVPIA sections 3402(a) and 3406( b)(1) ; (c)(1); (e)(1) and ( 5); (f); and (g)(4) and (7). The July 16, 2009 Memora ndum Decision reviewed the CV PIA s treatmen t of striped bass: The CVPI A contains n umerous provisions calling for prot ection and e nhancement of striped bass within t he Sacrament o-San Joa quin Delta. CVPIA section 3403(a) defines t he term anadromou s fish to include st riped bass, making applicab le section 3 406(b)(1) s maintenance and restorat ion provisio ns. That section requires the Secr etary of Int erior to develop within three ye ars of enact ment and implement a program which makes all reasonable efforts to ensure that, by the year 20 02, natural production of anadromo us fish in C entral Valley rivers and streams will be sust ainable, on a long-term basis, a t levels not less than twice the average levels a ttained duri ng the period of 1967-1991. To this end, it is u ndisputed that FWS has establis hed a doubli ng goal for striped bass of 2,500,00 0 fish. McDa niel Decl., Doc. 66-4, at ¶3 & Ex. B (Final Resto ration Plan for Anadromous Fish Res toration Pro gram, January 9, 2001) at 910. It i s also undis puted that this goal has not been ach ieved. Id. a t Ex. C (Anadromo us Fish Restorat ion Program Doubling Graphs for striped bass). Section 3406(b)(1)(B ) provides that the Secretar y is authori zed and directed to modify Central Valley Project op erations to provid e flows of suitable qu ality, quantity, and timing to prote ct all life stages of anadromous fish.... Section 34 06(b)(1)(D)(2) requires that the Secr etary upon enactment of this title dedicate and manage annually 800,000 acre-feet of Centr al Valley Pr oject yield for the primary purpose of implement ing the fish, wildlife, and habitat restoration purposes and measures authoriz ed by this t itle.... This provision has been int erpreted to require that the Secretary give pri macy to its anadromou s fish doublin g program in the alloc ation of the 800,000 acrefoot CVP yield dedic ation. See San Luis & Delta Mendota Water Auth.14 v. U.S. Dept. of the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Interior , --- F. Sup p. 2d --- , 2009 WL 1362652 (E.D. Ca l. 2009); Bay Ins titute of San Fran cisco v. Unite d States, 87 Fed. Appx. 637 (9th Ci r. Jan. 23, 2004). Beca use striped bass are included in the stat utory definition of andadro mous fish, they are intended and designat ed beneficia ries of these efforts. CVPIA § 3403(a ). Section 3406(b)(14) is directed speci ficall y to striped bass, requir ing the Secretary to develop and impleme nt a program which provides for modi fied operati ons and new or improved control structures a t the Delta Cross Channel and Geor giana Slough during times when signific ant numbers of st riped bass eggs, larvae, and juvenile s approach the Sacramento River in take to the Delta Cross Channel or Georgian a Slough. Certain CVPIA provis ions require the Secretary to coord inate with s tate agencies to protect anadromo us fish in g eneral and striped bass in particul ar. For exam ple, Section 3406(b)(21) requires that the Se cretary assist the State of Californ ia in effort s to develop and implement measures to avoid lo sses of juvenile anadromous fish res ulting from unscreened or inadequately screened diversions on the Sacramento and San Joaquin rivers, thei r tributaries, the Sacramen to-San Joaqu in De lta, and the Suisu n Marsh. Similarly, s ection 3406(b)(18) requires that the Secretary if requested by the State of Californ ia, assist i n developing and implemen ting managem ent measures to restore the striped bass fishery of the Bay-Delta estua ry. Such mea sures must b e coordinated with efforts to prote ct and resto re native fisheries. Id. Doc. 85 at 19- 22. That Decision also concluded that whether applic ation of th e ESA to the sport -fishi ng 23 regulati ons would co nflict with Congress CVPIA 24 objectiv es was a hig hly factual inquiry not amena ble to 25 summary judgment: 26 27 28 Can the numerous CVP IA provisions directing the Secretar y of the Int erior, in consultation with other fe deral agenci es, to protect and enhance the stri ped bass pop ulation, be harmonized with applicat ion of secti on 9 s take prohibition to 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CDFG s e nforcement o f the striped bass sportfishing regulations and more general application of the E SA? On Plaintiffs motion for summa ry adjudica tion on an a ffirmative defense for which Central Delta has th e burden of proof at trial, Plaintif fs must show an absence of evidence to support the nonmovin g party s case. Soreme kun, 509 F.3d at 984. Pla intiffs maintain, and h ave presente d evidence t o support their claim, that State De fendant s en forcement of the sportfishing regulations necessarily take Listed Species, and that la wful application of the ESA to State Defendant s enforcement activities will require elimination of (or substantial modifica tion to) tho se sport-fishing regulati ons, which a re causing jeopardy to Listed S pecies. The State rejoins that the current sport- fishing regulations are critical to the m aintenance o f current striped bass abundanc e levels. The State s evidence suggests that the continued e nforcement of these regulati ons, and/or the promulgation of more stringen t protection s, may be necessary to achieve the 2,500,00 0 striped bass population goal pro mulgated by the Service. This pre sents a material factual dispute over the effe cts of CDFG s striped bass regulations on the b ass and List ed Species populations. The express language and the legislative purpose of the CVPI A do not evi nce an intent to abrogate applicat ion of the E SA. Only after the fact s are develope d will it be possible to determine if a conflict in operatio n exists between implemen tation of th e ESA to the sport-fish ing regulati ons and achi eving the CVPIA objectives by appli cation of th ose regulations. Plaintiffs motion f or summary adjudication of Central Delta s CVPIA affirm ative defense is DENIED WITHOUT PREJUDICE. Id. at 2 4-26. This was r eiterated in the J uly 21, 201 0 Memorand um Decision re Plaintiffs Motion for Sum mary Judgment : The sign ificance of [the] evidence is in dispute. As Central Delta points out striped bass and the salmoni ds co-exi sted in the De lta for more than a cent ury, and it has not been shown th at [a simila r coexistance] cannot be achieved . Doc. 125 at 14 (noting that FWS adopted the Restorat ion Plan to resto re bot h 16 1 2 3 4 5 6 7 8 striped bass and sal monids pursuant to the directio n of the CVP IA). Central Delta also points o ut that, des pite the opinions of the review p anel, Congre ss expressed its uncondit ional intent to restore both striped bass and salmonids. At the same time, there is ample re cord evidenc e to support the proposition that the sportfishin g regulations are necessary to achie ve the CVPIA s goal of doubling the striped bass populat ion. Doc. 168 at 89-90. The Cent ral Delta Pa rties maintain that the federal 9 interest s embodied i n the CVPIA are not protected by the 10 Settleme nt Agreement . 11 not boun d by the CVP IA, which governs the actions of the 12 United S tates Secret ary of the Interior. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Moving Parties rejoin that DFG is CVPIA § 3406(a) provides : (b) Fish and Wildlif e Res tora tion Activitie s.-The Secr etary, immed iately upon the enactment of this tit le, shall op erate the Central Valley Project to meet all obligations under state and federal law, includi ng but not limited to the federal Endangered S pecies Act, 16 U. S.C. s 1531, et seq., and a ll decisions of the Californ ia State Wat er Resources Control Board establis hing conditi ons on applicable licenses and perm its for the project. The Secretary, in consulta tion with ot her State and Federal agencies , Indian tri bes, and affected interests, is furth er authorize d and directed to: (1) Deve lop within t hree years of enactment and impl ement a prog ram which makes all reasonab le efforts t o ensure that, by the year 200 2, natural p roduction of anadromous fish in Central Valley ri vers and streams will be sustainable, on a long-term basis, at level s not less t han twice the average levels a ttained duri ng the period of 19671991; This imp oses burdens on the Secretary of the Inte rior, 17 1 not DFG, to develop a program to double anadromous fish 2 populati ons (which a re defined to include striped bass) 3 by 2002. 4 5 6 7 However, t he CVPIA s requirement of str iped bass pop ulation doub ling is relevant to whether a pproval of this settlement a greement is in the public int erest. The CVPI A expresses Congress intent to pro tect and 8 enhance the striped bass population. 9 nothing in the Settl ement Agreement requires Stat e 10 Defendan t to promulg ate a regulation that derogat es the 11 CVPIA s goals, nor d oes the Settlement Agreement preclude 12 13 14 15 Nevertheles s, the Cent ral Delta Pa rties from raisin g the CVPIA in any future c hallenge to a Regulatory Proposal. The f ederal interest in the CVPI A is not per se harmed or adv anced by 16 the Sett lement Agree ment, which has for its prima ry 17 purpose the protecti on of listed species. 18 19 20 C. The Sett lement Agree ment is Otherwise in the Publ ic Interest . The Agre ement serves the public interest by avoid ing 21 protract ed litigatio n and conserving resources. 22 Citizens for a Bette r Environment v. Gorsuch, 718 F.2d 23 24 25 26 27 28 See 1126, 11 17 (D.C. Cir . 1983) ( Not onl y the parties, bu t the gene ral public a s well, benefit from the savi ng of time and money that results from the voluntary se ttlement of litig ation. ). The Agre ement requir es State Defendant to address the 18 1 issue of predation i n a manner that is consistent with 2 the purp oses of the ESA and with the conservation and 3 protecti on of the Li sted Species. 4 5 6 7 See United States v . Salt Riv er Project A gric. Improvement and Power D ist., 2008 WL 5332023, at *3 (D. Ariz. Dec. 22, 2008) ( finding Consent Decree serve d the public interest because it was 8 consiste nt with the purposes of the Clean Air Act ). 9 Settleme nt Agreement ensures that the combined ex pertise 10 and reso urces of the State Defendant, NOAA Fisher ies, and 11 FWS, the state and f ederal agencies responsible f or 12 13 14 15 The protecti ng wildlife resources (including the List ed Species) in the Delt a and tributaries thereto, ar e brought to bear on t he issue of striped bass pred ation. 16 The Agre ement also p rovides a means for funding a nd 17 research ing predatio n impacts on one or more fish spec ies 18 listed u nder the fed eral and/or California Endang ered 19 Species Acts in the Delta and/or the anadromous w aters of 20 the Sacr amento and S an Joaquin river waters heds. 21 22 23 24 Settleme nt Agreement at ¶¶ 2, 17. If this examination results in a recommendation to modify t he striped b ass sport fishing regulations , 25 Defendan t Intervenor s may raise their objections to the 26 regulati on at that t ime. 27 develope d record for future judicial review. 28 This will also permit a more 19 1 2 D. The Make up of the Sc ience Panel. Paragrap h 17 o f the Settlement Agreement es tablis hes 3 Indepen dent Scienti fic Review Panel, charged wi th the 4 task of selecting re search proposals to receive f unding 5 6 7 8 9 from the $1,000,000 set aside by State Defendant. Defendan t Intervenor s complain that the Panel s membersh ip is not i ndependent. Proposed members inc lude Marty Gingras, a DFG 10 employee and State D efendant Rule 30(b)(6) design ee at 11 the cent er of the fa ctual dispute in this case. 12 example, Plaintiffs previously argued that certai n 13 14 15 16 For statemen ts Mr. Gingras made at his deposition concerni ng the effe ct of stripe d bass sport fishing regulati ons on striped bass populat ions and the effect of stripe d bass 17 predatio n on the Lis ted Species should absolutely bind 18 State De fendant. 19 assigned to the pane l, along with Plaintiff s exp ert 20 Charles Hanson, and Dennis Murphy, who co-authore d an 21 article on the Endan gered Species Act with Plaint iffs 22 23 24 25 An other DFG employee Pat Coulst on is attorney Paul Weilan d. The four members are auth orized to pick the fifth Pa nel member. Moving Par ties m ainta in that the se participa nts are both qualified and 26 knowledg eable and th at Defendant Intervenors sug gestion 27 that the y cannot exe rcise independence has no bas is in 28 fact. 20 1 Defendan t Intervenor s suggested, as an alternativ e, 2 that a p anel of Nati onal Academy of S ciences scientists 3 be used to select re search projects. 4 5 6 7 8 This is impracti cable, as NA S panels are typically impane led at the requ est of Congr ess, a federal agency, or bot h, with the ulti mate goal of producing a report, not of choosing research projects fo r grant funding. The law does not arr ogate to Defendant Intervenor s 9 10 the auth ority to cho ose the composition of Panel members. 11 The DFG and Plaintif fs are adversaries. 12 13 14 15 Panel mu st comply wi th all applicable laws. 18 19 20 21 The law d oes not requ ire more. E. 16 17 They and the The Sett lement Proce ss Was Not Unfair. Defendan t Intervenor s complain that they were excluded from the Se ttlement Process until the Ag reement had been formulated. 1 Onc e th e Agreement was drafted, Defendan t Intervenor s were in cluded in discussions. T hey articula ted five pri nciples that should be implem ented. 24 (1) The financial co mmitment by DFG should be utilized to study al l predation, inform DFG, and be the b asis of any regulatory proposal. The study sh ould be dire cted by an independent panel. The interven ors suggested the National Academy of Sciences. 25 (2) 22 23 26 27 28 1 Any regulatory proposal should be De fe nd an t In te rv en or s a ls o co mp la i n t ha t FW S, t he a ge nc y c ha rg ed wit h im pl em en ta ti on o f t he C VP IA , w as al so e xc lu de d fr om th e in it ia l dis cu ss io ns . T hi s co mpl ai nt i s ba s ele ss . T he S et tl em en t A gr ee me nt cal ls f or S ta te D ef en dan t to c on su l t w it h NM FS a nd F WS i n d ev el op in g the ir R eg ul at or y Pr op osa l, a s is r e qui re d by l aw . 21 1 consiste nt with and implement the CVPIA provisio ns for the d oubling of all anadromous fish pop ulations as defined therein. 2 3 3) Full review under the California Environm ental Qualit y Act, California Public Resource s Code secti on 21000, et seq. ( CEQA ) should b e a part of the process, with the inclusio n of agreed alternatives. 4 5 6 4) All p arties shoul d be equal participants in the proc ess. 7 5) There should be r eserved jurisdiction by the Court. S ome, but not all, of their concerns were addresse d. 8 9 10 11 Doc. 233 at 7; Decla ration of Daniel A. McDaniel, Doc. 233-1 ¶ 6, Ex. A. Intervenors proposed revisions to the 12 Settleme nt Agreement , however only minor ch anges were 13 adopted. 14 15 16 17 18 19 The Movi ng Parties d escribe the Settlement proces s very dif ferently. T hey explain that a phased ap proach was take n at the beh est of Judge Seng, who recomm ended that Pla intiffs nego tiate with State Defendant, f ollowed by invol vement of De fendant Intervenors if Plaint iffs and 20 State De fendants are able to reach agreement. 21 at 6. 22 sense b ecause Defen dant Intervenors would not wa ste 23 their ti me if Plaint iffs and State Defendan ts wer e una ble 24 to reach agreement. 25 26 27 28 Do c. 239 A ccording to Moving Parties, this procedur e made Id. Defendan t Intervenor s shall be provided notice an d the oppo rtunity to p articipate in and provide inp ut in the deve lopment of t he Regulatory Proposal consis tent 22 1 with and subject to paragraphs 3, 4, 5, 8, and 16 of t he 2 settleme nt agreement . 2 3 further be provided the opportunity to participat e in and 4 5 6 7 Defendant Inte rvenors shal l provide input to the California Fish and Game Com mission during t he regulator y process, including any proc eedings relating to the Commission's consideration of the 8 Regulato ry Proposal, pursuant to the California 9 Administ rative Proce dure Act and Sections 205 and 207 of 10 the Cali fornia Fish and Game Code. 11 herein s hall be cons trued or implied to require t hat any 12 Nothing provi ded general or specific regulatory propos al be made. 13 14 F. The Sett lement Proce ss Was Not Tainted by Collusi on. The Sett lement Agree ment embodies a reasonable 15 16 compromi se by all si gnatories. 17 were hot ly disputed. 18 19 20 21 The issues in thi s case While the Agreement offers some relief t o Plaintiffs in the form of a proce dure to develop a Regulatory Proposal, none is guaranteed . Plaintif fs will rece ive no injunctive or declarat ory 22 relief, nor will the y obtain fees. The Agreement is n ot 23 the prod uct of any c ollusion between Plaintiffs a nd th e 24 State De fendant. Ra ther, it was the product of r igorous, 25 26 27 28 2 Th es e op po rt un it ie s to pa rt ic ip at e ar e co nd it io ne d up on De fe nd an tInt er ve no rs co ns en t to co nf id en ti a lit y te rm s se t fo rt h at pa ra gr ap h 16 of t he S et tl em en t Agr ee me nt . D e fen da nt I nt er ve no rs c omp la in t ha t suc h re st ri ct io ns w il l - -- b ut t he y ar e a re as on ab le r eq uir em en t to fos te r op en d is cu ss io ns an d in a ny eve nt a re t o be l if te d u po n th e iss ua nc e of a R eg ul at ory P ro po sa l. 23 1 arms-len gth ne gotiations. 2 V. CONCLUSI ON 3 4 For the reasons set forth above, the Settlement 5 Agreemen t is fair, r easonable and equitable and d oes not 6 violate the law or p ublic policy. 7 the Sett lement Agree ment (Doc. 230) is GRANTED. 8 Parties shall submit a proposed form of order con sistent 9 10 11 12 13 14 Moving with thi s memorandum decision within five (5) day s followin g electronic service. SO ORDER ED Dated: A pril 5, 2011 /s/ Oliver W. Wanger United States Distri ct Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The motion to appro ve 24

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