San Luis & Delta-Mendota Water Authority et al v. Salazar et al, No. 1:2009cv00407 - Document 583 (E.D. Cal. 2010)

Court Description: MEMORANDUM DECISION DENYING Without Prejudice Renewed Application For Temorary Restraining Order 562 , signed by Judge Oliver W. Wanger on 2/12/2010. (Gaumnitz, R)

Download PDF

1 2 3 4 UNITED STATES DISTRICT COURT 5 FOR THE EASTERN DISTRICT OF CALIFORNIA 6 7 DELTA SMELT CONSOLIDATED CASES 1:09-CV-407 OWW DLB SAN LUIS & DELTA-MENDOTA WATER AUTHORITY, et al. v. SALAZAR, MEMORANDUM DECISION DENYING WITHOUT PREJUDICE RENEWED APPLICATION FOR TEMPORARY RESTRAINING ORDER (DOC. 562) 8 9 et al. 10 11 12 13 STATE WATER CONTRACTORS v. SALAZAR, et al. COALITION FOR A SUSTAINABLE DELTA, et al. v. UNITED STATES FISH AND WILDLIFE SERVICE, et al. 14 15 METROPOLITAN WATER DISTRICT v. UNITED STATES FISH AND WILDLIFE SERVICE, et al. 16 17 STEWART & JASPER ORCHARDS et al. v. UNITED STATES FISH AND WILDLIFE SERVICE. 18 19 20 I. INTRODUCTION Plaintiffs, San Luis & Delta Mendota Water Authority (the 21 Authority ) and Westlands Water District ( Westlands ), move for 22 a Temporary Restraining Order ( TRO ) against the implementation 23 24 of Reasonable and Prudent Alternative ( RPA ) Component 1, Action 25 2 set forth in the United States Fish and Wildlife Service s 26 ( FWS ) December 15, 2008 Biological Opinion, which addresses the 27 impacts of the coordinated operations of the federal Central 28 1 1 Valley Project ( CVP ) and State Water Project ( SWP ) on the 2 threatened delta smelt (Hypomesus transpacificus) ( 2008 Smelt 3 BiOp ). Doc. 562, filed Feb. 9, 2010. 4 Plaintiffs State Water Contractors; Metropolitan Water 5 District of Southern California; Kern County Water Agency and 6 7 Coalition for a Sustainable; Stewart & Jasper Orchards, et al.; 8 and Family Farm Alliance joined the TRO motion. 9 Intervenor California Department of Water Resources ( DWR ), the 10 operator of the SWP, filed a statement of non-opposition. 11 570. 12 Docs. 571-75. Doc. The motion came on for hearing, on shortened notice, on 13 February 2, 2010. The parties were represented by counsel, as 14 15 noted in the record. 16 17 18 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 19 that the coordinated operations of the CVP and SWP, as proposed, 20 21 are likely to jeopardize the continued existence of the delta 22 smelt and adversely modify delta smelt critical habitat. 23 Smelt BiOp at 276-78. 24 RPA designed to allow the projects to continue operating without 25 causing jeopardy or adverse modification. 26 2008 As required by law, the BiOp includes an Id. at 279. The RPA includes various operational components designed to reduce 27 entrainment of smelt during critical times of the year by 28 2 1 controlling and reducing water flows in the Delta. 2 Id. at 279- 85. 3 Component 1 (Protection of the Adult Delta Smelt Life Stage) 4 consists of two Actions related to Old and Middle River ( OMR ) 5 flows. Action 1, which is designed to protect upmigrating delta 6 7 smelt, is triggered during low and high entrainment risk periods 8 based on physical and biological monitoring. 9 OMR flows to be no more negative than -2,000 cubic feet per 10 second ( cfs ) on a 14-day average and no more negative than - 11 2,500 cfs for a 5-day running average. 12 Action 1 requires Id. at 281, 329. At issue in this case is Action 2 of Component 1, which is 13 designed to protect adult delta smelt that have migrated upstream 14 15 and are residing in the Delta prior to spawning. Action 2 is 16 triggered immediately after Action 1 ends or if recommended by 17 the Smelt Working Group ( SWG ). 18 within a range from -5000 to -1250 cfs, depending on a complex 19 set of biological and environmental parameters. 20 352-56. Flows under Action 2 can be set Id. at 281-282, 21 Component 2 (Protection of Larval and Juvenile Delta Smelt), 22 requires OMR flows to remain between -1,250 and -5,000 cfs 23 24 beginning when Component 1 is completed, when Delta water 25 temperatures reach 12° Celsius, or when a spent female smelt is 26 detected in trawls or at salvage facilities. 27 358. Id. at 282, 357- Component 2 remains in place until June 30 or when the 28 3 1 Clifton Court Forebay water temperature reaches 25° Celsius. 2 Id. at 282, 368. 3 Component 3 (Improve Habitat for Delta Smelt Growth and 4 Rearing) requires sufficient Delta outflow to maintain average 5 mixing point locations of Delta outflow and estuarine water 6 7 inflow ( X2 ) from September to December, depending on water year 8 type, in accordance with a specifically described adaptive 9 management process overseen by FWS. 10 11 12 Id. at 282-283, 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 283-284, 379. 13 Under Component 5 (Monitoring and Reporting), the Projects 14 15 gather and report information to ensure proper implementation of 16 the RPA actions, achievement of physical results, and evaluation 17 of the effectiveness of the actions on the targeted life stages 18 of delta smelt, so that the actions can be refined, if needed. 19 Id. at 284-285, 328, 375, 37. 20 On February 8, 2010, Federal Defendants gave Plaintiffs 48 21 hours notice, required by the Court, that they planned to 22 implement Component 1, Action 2 as of 5:00PM February 10, 2010. 1 23 24 The SWG recommended that protective measures were necessary in 25 part because, since February 3, a total of 5 delta smelt had been 26 salvaged at the pumps. 27 1 28 See Doc. 579-3, Smelt Working Group At the February 10, 2010 hearing, Federal Defendants indicated that Component 1, Action 2 would not be implemented until 7:00 AM on February 11, 2010. 4 1 Notes, Feb. 8, 2010. 2 for a portion of the day, observed salvage figures are routinely 3 multiplied by four, to achieve an expanded salvage number of (Because the salvage facility only operates 4 20.) As of the hearing on this motion, the cumulative expanded 5 salvage for the year stood 24 (or 6 fish). Id. 6 The total allowable take for the entire water year is 123, 7 8 meaning that salvage has already reached 20% of the take limit 9 for this year. 10 OMR flows be set at -2000 cfs to accommodate water contractors, 11 FWS determined that an adaptive approach could be implemented, 12 Although the majority of the SWG recommended that pursuant to which OMR flows would initially be limited to no more 13 negative than -4000 cfs. If observed salvage exceeds 1 smelt per 14 15 day (for an expanded take of 4), flows will be further decreased 16 by 1000 cfs, a process that is to continue until salvage is 17 reduced to no more than 1 smelt per day, flows average no more 18 negative than -1250 cfs, or the SWG makes a revised 19 recommendation. 20 Required Under Component 1 of the 2008 OCAP Biological Opinion, See Doc. 579-3, FWS Determination of Actions 21 Feb. 8, 2010. 22 23 III. SUMMARY OF PLAINTIFFS MOTION 24 25 26 Plaintiffs seek temporary injunctive relief on the grounds that: (1) the district court has already found that the United 27 States Bureau of Reclamation ( Reclamation ) failed to 28 5 1 comply with the National Environmental Policy Act ( NEPA ) 2 in implementing the 2008 Smelt BiOp RPAs; and. 3 (2) the 2008 Smelt BiOp violates the ESA and is arbitrary, 4 capricious, and contrary to law because: 5 (a) FWS has failed to show that limiting entrainment is 6 necessary to avoid jeopardy, because, among other 7 8 things, the best available science does not demonstrate 9 a statistically significant connection between 10 entrainment and smelt abundance from year to year, and 11 the smelt are not present in sufficient numbers at or 12 near the pumps to expose them to jeopardy; and 13 (b) the severe OMR flow restrictions in RPA Action 2 14 are unsupported buy the data in the 2008 Smelt BiOp. 15 Plaintiffs further claim that the implementation of 16 17 Component 1, Action 2 will cause them continuing irreparable harm 18 and that the public interest and balance of hardships favor 19 injunctive relief. 20 IV. STANDARDS OF DECISION 21 22 23 A. Temporary Restraining Order. Injunctive relief, whether temporary or permanent, is an Winter v. 24 extraordinary remedy, never awarded as of right. 25 Natural Resources Defense Council, 129 S. Ct. 365, 376 (2008); 26 Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982). 27 The standard for relief applicable to a temporary restraining order 28 6 Stuhlbarg Int l 1 is the same as for a preliminary injunction. 2 Sales Co., Inc. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 3 (9th Cir. 2001). 4 Four factors must be established by a preponderance of the 5 evidence to qualify for temporary injunctive relief: 6 1. Likelihood of success on the merits; 8 2. Likelihood the moving party will suffer irreparable 9 harm absent injunctive relief; 10 3. 11 favor; and 7 12 4. The balance of equities tips in the moving parties An injunction is in the public interest. 13 Winter, 129 S.Ct. at 374; Am. Trucking Ass n v. City of Los 14 15 16 17 18 Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). B. Balancing of the Harms in ESA Cases. The Supreme Court held in TVA v. Hill, 437 U.S. 153, 194 (1978), that Congress struck the balance in favor of affording 19 endangered species the highest of priorities. In adopting the 20 21 Endangered Species Act ( ESA ), Congress intended to halt and 22 reverse the trend toward species extinction, whatever the cost. 23 Id. at 184 (emphasis added). 24 See Nat l Ass n of Home Builders v. Defenders of Wildlife, 551 25 U.S. 664, 669-71 (2007); see also United States v. Oakland 26 TVA v. Hill continues to be viable. Cannabis Buyers Co-op., 532 U.S. 483, 496-97 (2001); Amoco Prod. 27 Co. v. Village of Gambell, 480 U.S. 531, 543 n.9 (1987). 28 7 1 Winter does not modify or discuss the TVA v. Hill standard. 2 2 Although Winter altered the Ninth Circuit s general preliminary 3 injunctive relief standard by making that standard more rigorous, 4 Winter did not address, let alone change, the Circuit s approach 5 to the balancing of hardships where endangered species and their 6 7 critical habitat are jeopardized. See Biodiversity Legal Found. 8 v. Badgley, 309 F.3d 1166, 1169 (9th Cir. 2002) (Congress removed 9 the courts traditional equitable discretion to balance parties 10 competing interests in ESA injunction proceedings); Nat l 11 Wildlife Fed n v. Burlington N. R.R., Inc., 23 F.3d 1508, 1510-11 12 (9th Cir. 1994)(same). 13 Two post-Winter district court cases declined to balance the 14 15 equities in evaluating requests for injunctive relief under the 16 ESA, applying TVA v. Hill s reasoning. Oregon Natural Desert 17 Ass n v. Kimbell, 2009 WL 1663037, at *1 (D. Or. June 15, 2009); 18 Animal Welfare Inst. v. Martin, 588 F. Supp. 2d 70, 105-106 (D. 19 Me. 2008). 20 21 22 23 24 25 26 27 28 2 Although Winter involved ESA-listed species, the Winter decision did not address any ESA claims. The Stewart & Jasper, et al., Plaintiffs ( Stewart & Jasper ) cite Center for Biological Diversity v. U.S. Forest Service, 2010 WL 334548 (D. Ariz. Jan. 22, 2010), as an example of an ESA case in which Winter was applied. That decision cited Winter for the general preliminary injunction standard, but did not discuss the Supreme Court and Ninth Circuit authority prohibiting the balancing of harms in ESA cases, perhaps because plaintiffs in that case entirely failed to demonstrate likelihood of success on their ESA claims. See id. at *1 (the court had already determined that defendants fully complied with their obligations under the ESA.... ). Stewart & Jasper also cites Independent Living Center of Southern California, Inc. v. Maxwell-Jolly, 572 F.3d 644, 658 (9th Cir. 2009), which applied Winter to a Social Security Act claim. Stewart & Jasper are correct that Winter is not a NEPA-only case. Winter has had broad effect on the application of the injunctive relief standard in non-ESA cases this Circuit. However, Jolly says nothing about whether Winter modifies the parallel line of authority precluding balancing in ESA cases. 8 TVA v. Hill and related Ninth Circuit authorities foreclose 1 2 the district court s traditional discretion to balance equities 3 under the ESA. There is no such bar in NEPA injunction 4 proceedings. 5 6 C. 7 8 9 Administrative Procedure Act. The Administrative Procedure Act ( APA ) requires Plaintiffs to show that NMFS s action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 10 U.S.C. § 706(2)(A). 11 12 1. 13 The Court must defer to the agency on matters within the 14 15 Deference to Agency Expertise. agency s expertise, unless the agency completely failed to address some factor, consideration of which was essential to 16 making an informed decision. Nat l Wildlife Fed n v. NMFS, 422 17 18 F.3d 782, 798 (9th Cir. 2005). The court may not substitute its 19 judgment for that of the agency concerning the wisdom or prudence 20 of the agency s action. 21 --- F.3d ---, 2010 WL 337337 *4 (9th Cir. June 10, 2009). 22 In conducting an APA review, the court must determine whether the agency s decision is founded on a rational connection between the facts found and the choices made ... and whether [the agency] has committed a clear error of judgment. Ariz. Cattle Growers Ass n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1243 (9th Cir. 2001). The [agency s] action ... need be only a reasonable, not the best or most reasonable, decision. Nat l Wildlife Fed. v. Burford, 871 F.2d 849, 855 (9th Cir. 1989). 23 24 25 26 27 28 River Runners for Wilderness v. Martin, Id. 9 1 2. 2 A court reviews a biological opinion based upon the Record Review. 3 evidence contained in the administrative record. 4 Growers Ass n, 273 F.3d at 1245. Arizona Cattle Judicial review under the APA 5 must focus on the administrative record already in existence, not 6 some new record made initially in a reviewing court. Parties may 7 8 not use post-decision information as a new rationalization Ass n 9 either for sustaining or attacking the agency s decision. 10 of Pac. Fisheries v. EPA, 615 F.2d 794, 811-12 (9th Cir. 1980). 11 12 13 Exceptions to administrative record review for technical information or expert explanation make such evidence admissible only for limited purposes, and those exceptions are narrowly 14 construed and applied. Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005). Although [any] factual inquiry is to be 15 16 17 searching and careful the ultimate standard of review is 18 narrow. 19 for that of the agency. 20 1159 (9th Cir. 1980). 21 liberally admit new evidence in an APA review case, because The court is not empowered to substitute its judgment Asarco, Inc. v. EPA, 616 F.2d 1153, Federal Courts cannot routinely or 22 [w]hen a reviewing court considers evidence that was not before 23 the agency, it inevitably leads the reviewing court to substitute 24 25 26 27 its judgment for that of the agency. 3. Id. at 1160. Best Available Science. What constitutes the best available science implicates 28 10 1 core agency judgment and expertise to which Congress requires the 2 courts to defer; a court should be especially wary of overturning 3 such a determination on review. Baltimore Gas & Elec. Co. v. 4 Nat l Res. Defense Council, 462 U.S. 87, 103 (1983) (a court must 5 be at its most deferential when an agency is making 6 7 predictions within its area of special expertise, at the 8 frontiers of science ). 9 determine the best scientific and commercial data available for 10 its decision-making. 11 U.S. Bureau of Reclamation, 143 F.3d 515, 523 n.5 (9th Cir. 12 1998). An agency has wide discretion to See S.W. Ctr. for Biological Diversity v. A decision about jeopardy must be made based on the best 13 science available at the time of the decision; the agency cannot 14 15 wait for or promise future studies. See Ctr. for Biological 16 Diversity v. Rumsfeld, 198 F. Supp. 2d 1139, 1156 (D. Ariz. 17 2002). 18 V. ANALYSIS 19 A. Likelihood of Success on the Merits. 20 1. NEPA Claim. 21 It has already been decided in this case that Reclamation, 22 23 as the action agency, violated NEPA by failing to follow the 24 prescriptions and requirements of NEPA in connection with the 25 implementation of the RPAs prescribed by the 2008 Delta Smelt 26 BiOp. 27 See Doc. 399 ( Delta Smelt NEPA Decision ). The United States failure to comply with NEPA has, at a 28 11 1 minimum, prevented a thorough evaluation, analysis, hard look 2 at, and disclosure of the costs of implementing the 2008 Smelt 3 BiOp RPAs to human health and safety, the human environment, and 4 other environments not inhabited by the smelt, all of which would 5 have fostered development of the least damaging RPAs in light of 6 7 8 9 catastrophic harm being inflicted on agricultural, municipal, and domestic water users. However, the authority of the court to issue an injunction 10 against implementation of the 2008 Smelt BiOp based on a NEPA 11 violation is limited, as injunctive relief is precluded where 12 enjoining government action allegedly in violation of NEPA might 13 actually jeopardize natural resources. Save Our Ecosystems, 747 14 15 16 17 18 F.2d 1240, 1250 n.16 (9th Cir. 1984). Nor may an injunction issue if it would cause violation of another law, here the ESA. 2. ESA Claims. Plaintiffs argue that they are likely to succeed on the 19 merits of their ESA claim that the 2008 Smelt BiOp is arbitrary, 20 21 capricious, and contrary to law because: (a) FWS has failed to 22 show that limiting entrainment is necessary to avoid jeopardy; 23 and (b) the severe OMR flow restrictions in RPA Component 1, 24 Action 2 are unsupported buy the data in the 2008 Smelt BiOp. 25 Preliminary Injunction motions concerning these same issues are 26 pending, but have not been heard or decided. 27 Action 2 has been triggered in this instance based on 28 12 1 entrainment concerns. 2 salvage/entrainment as a trigger for imposing pumping 3 restrictions is unjustified because the BiOp is based upon a Plaintiffs argue that the use of 4 scientifically unsupportable finding of a relationship between 5 reverse OMR flows and adult salvage. Plaintiffs expert, Dr. 6 7 Richard B. Deriso, declares that Component 1, Action 2 prescribes 8 OMR flow levels based on the BiOp s calculations of the 9 relationship between OMR flows and adult salvage...[as] depicted 10 in Figure B-13, which compares OMR flows to raw salvage numbers. 11 Doc. 396 at ¶27; BiOp at 348). 12 Dr. Deriso opines that because Figure B-13 is based upon raw salvage (i.e., how many individual 13 smelt were salvaged), it fails to provide any information on the 14 15 proportion of the total population that is lost to salvage. 16 at ¶28. 17 flows have on the total delta smelt population. 18 added). 19 [o]nly by looking at population level effects can it be 20 Id. He concludes: Figure B-13 does not show what effect OMR determined whether salvage is impacting the delta smelt Id. (emphasis Dr. Deriso opines that this failure is critical because 21 population and its ability to recover. Id. at ¶69. Elsewhere in 22 the BiOp, FWS concedes that, for purposes of relating salvage 23 24 data to population-level significance, the total number 25 salvaged at the facilities does not necessarily indicate a 26 negative impact upon the overall delta smelt population. 27 at 338. 28 13 BiOp 1 To demonstrate the potential impact of the use of raw, as 2 opposed to population-adjusted, salvage numbers, Dr. Deriso 3 performed his own calculations to examine the relationship 4 between OMR flows and the Cumulative Salvage Index, a measure 5 that takes into account relative population size. He concluded, 6 7 based on this analysis, that increased salvage of adult smelt is 8 correlated to OMR flows only at levels more negative than -6100 9 cfs. 10 whether negative OMR flows have any impact on the smelt s 11 population growth rate, and found that there is no statistical 12 Id. at ¶¶ 61-65. He also examined the data to determine basis to conclude that cumulative salvage has a negative 13 population level effect within the range of cumulative salvage 14 15 index levels historically observed. Id. at ¶73. 16 However, contrary to Dr. Deriso s opinions, the BiOp 17 concludes that entrainment has had significant population level 18 effects in some years, even though entrainment may not be driving 19 population dynamics every year. 20 other sources, a study by Manly and Chotkowski demonstrating that BiOp at 158-59 (citing, among 21 exports and OMR flows had statistically significant effects on 22 smelt abundance). The BiOp reasoned that high entrainment of 23 24 adult smelt in some years has played a role in the decline of the Id. at 173-74. The BiOp also considered evidence 25 species. 26 demonstrating that the CVP and SWP may disproportionately entrain 27 the most fecund individuals in the population, which may affect 28 14 1 abundance levels more than overall entrainment numbers suggest. 2 Id. at 147, 158. 3 the BiOp performed other statistical analyses which indicate Finally, apart from the critiqued Figure B13, 4 Id. changes in salvage values at levels well below -5,000 cfs. 5 at 346-351 (discussing piecewise polynominal regression analyses 6 7 8 showing a change in salvage values at -1,162 cfs). DWR has acknowledged that population level effects may be See AR at 2275, 2277, 2287. 9 difficult to detect statistically. 10 In addition, an independent peer review of the BiOp found that 11 the regression analysis FWS used to find a break point in the 12 OMR-salvage relationship was reasonable. AR at 6523. 13 Plaintiffs emphasize the fact that pumping restrictions are 14 15 being imposed on the basis of entrainment of six individual delta 16 smelt. However, the BiOp found that entrainment at the pumps is 17 a small fraction of delta smelt take caused by CVP and SWP 18 operations, which include movement of the Smelt to the Central 19 and South Delta, which is lethal to the species. 20 79; see also NRDC v. Kempthorne, 1:05-cv-1207, Doc. 561, Findings See BO at 278- 21 of Fact, ¶¶ 18-20, 51. The SWG recognized in 2007 that the delta 22 smelt was critically imperiled and that the Projects should 23 24 25 26 27 seek to achieve no further entrainment of delta smelt. Id., Conclusions of Law, ¶11. Finally, Plaintiffs assert that the most recent survey data shows that the majority of the smelt are in the Northern and 28 15 1 Western reaches of the Delta, far removed from any risk of 2 entrainment. 3 wide survey upon which Plaintiffs rely is now approximately four However, Federal Defendants rejoin that the Delta- 4 weeks old, Doc. 578 at 5; and current salvage at the pumps 5 provides conclusive evidence of the presence of delta smelt in 6 7 8 the South Delta. Doc. 470, Goude Decl. at ¶18. These are significant scientific disputes regarding the 9 relationship between OMR flows and entrainment and between 10 entrainment and smelt population abundance. 11 and Defendant Intervenors have presented record evidence to 12 Federal Defendants dispute each of Plaintiffs scientific critiques. What 13 constitutes the best available science implicates core agency 14 15 judgment and expertise to which Congress requires the courts to 16 defer; a court should be especially wary of overturning such a 17 determination on review. 18 103 (1983) (a court must be at its most deferential when an 19 agency is making predictions within its area of special 20 expertise, at the frontiers of science ). Baltimore Gas & Elec. Co., 462 U.S. at On the present motion, 21 Plaintiffs have not shown they are likely to succeed on the 22 merits of their ESA claim. 23 24 In this case, the action agency implementing the BiOp has 25 violated NEPA, but no ESA violation has yet been found; FWS 26 scientists opine that jeopardy to the species and/or adverse 27 modification of its critical habitat is imminent and occurring; 28 16 1 Plaintiffs experts have not discredited FWS s affirmative 2 finding that implementation of Component 1, Action 2 is necessary 3 to avoid jeopardy and/or adverse modification. The district 4 court is without authority to balance the equities under the 5 extant circumstances. The motion for TRO is DENIED WITHOUT 6 7 PREJUDICE. 8 9 IT IS SO ORDERED. 10 DATED: February 12, 2010. 11 12 13 /s/ Oliver W. Wanger Oliver W. Wanger United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.