San Luis & Delta-Mendota Water Authority et al v. Locke et al, No. 1:2009cv01053 - Document 401 (E.D. Cal. 2010)

Court Description: MEMORANDUM DECISION AND ORDER Re San Luis Plaintiffs' Motions to Augment 134 and Supplement 139 , and Stanislaus River Plaintiffs' Motion to Augment 145 the administrative record, signed by Judge Oliver W. Wanger on 06/21/10. (Coffman, Lisa)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 DELTA SMELT CONSOLIDATED CASES 1:09-CV-1053 OWW DLB 9 SAN LUIS & DELTA-MENDOTA WATER AUTHORITY, et al. v. SALAZAR, MEMORANDUM DECISION AND ORDER RE SAN LUIS PLAINTIFFS MOTIONS TO AUGMENT (DOC. 134) AND SUPPLEMENT (DOC. 139); AND STANISLAUS RIVER PLAINTIFFS MOTION TO AUGMENT THE ADMINISTRATIVE RECORD (145) 10 11 12 13 14 15 16 17 18 et al. STATE WATER CONTRACTORS v. SALAZAR, et al. COALITION FOR A SUSTAINABLE DELTA, et al. v. UNITED STATES FISH AND WILDLIFE SERVICE, et al. METROPOLITAN WATER DISTRICT v. UNITED STATES FISH AND WILDLIFE SERVICE, et al. STEWART & JASPER ORCHARDS et al. v. UNITED STATES FISH AND WILDLIFE SERVICE. 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Before the court for decision are three motions concerning the Administrative Record ( AR ): San Luis & Delta-Mendota Water Authority, Westlands Water District, State Water Contractors, Metropolitan Water District of Southern California, Kern County Water Agency, Coalition for a Sustainable Delta, Oakdale Irrigation District, South San Joaquin Irrigation District and Stockton 1 1 East Water District (collectively, South Delta Plaintiffs ) 2 seek to supplement the AR with 41 documents. 3 South Delta Plaintiffs maintain that some of these documents 4 Docket 140. were improperly excluded from the AR (including documents 5 6 7 cited by water users in comment letters; comments, reports, and studies submitted to Federal Defendants by the 8 Department of Water Resources ( DWR ); and documents cited 9 in the consultation history). 10 to augment the record with certain additional documents 11 under several of the recognized exceptions to the record 12 13 14 15 review rule. South Delta Plaintiffs seek Federal Defendants have agreed to supplement the record with Documents 15-20 and 22 from this request, but oppose supplementation as to the remaining documents. 16 Stockton East Water District, Oakdale Irrigation District, 17 and South San Joaquin Irrigation District ( Stanislaus River 18 Plaintiffs ) seek to supplement the AR with certain 19 additional documents enumerated in Tables A-E attached to 20 21 22 23 their motion. Docket 146. The Stanislaus River Plaintiffs incorporate the legal arguments of the South Delta Plaintiffs. Federal Defendants have agreed to augment the 24 record with all but 7 of the Documents listed in Table E. 25 The South Delta Plaintiffs also seek to augment the AR with 26 64 documents withheld under various claims of privilege. 27 See Docket 135. 28 In its opposition, the National Marine 2 1 Fisheries Service ( NMFS ) withdrew its privilege claims as 2 to Documents 24-59, but opposes augmentation as to the 3 remaining documents. 4 The parties agreed to submit these motions on the papers. 5 6 7 II. ANALYSIS A. Motions to Supplement. 8 1. 9 The APA limits the scope of judicial review to the 10 11 12 Legal Framework. administrative record. 5 U.S.C. § 706 (directing the court to review the whole record or those parts of it cited by a party. ). The administrative record is not necessarily those 13 14 documents that the agency has compiled and submitted as the Thompson v. U.S. Dept. of Labor, 885 15 administrative record. 16 F.2d 551, 555 (9th Cir. 1989). 17 includes everything that was before the agency pertaining to the 18 merits of the decision. 19 Species Comm., 984 F.2d 1534, 1548 (9th Cir. 1993). 20 21 22 23 24 25 26 27 28 Rather, [t]he whole record Portland Audubon Soc y v. Endangered The whole administrative record, therefore, consists of all documents and materials directly or indirectly considered by agency decisionmakers and includes evidence contrary to the agency's position. Thompson, 885 F.3d at 555 (emphasis added). An incomplete record must be viewed as a fictional account of the actual decisionmaking process. When it appears the agency has relied on documents or materials not included in the record, supplementation is appropriate. Portland Audubon, 984 F.2d at 1548 (internal quotations and 3 1 citations omitted); see also Asarco, Inc. v. U.S. Environmental 2 Protection Agency, 616 F.2d 1153, 1160 (9th Cir. 1980) ( A 3 satisfactory explanation of agency action is essential for 4 adequate judicial review, because the focus of judicial review is 5 6 7 8 9 not on the wisdom of the agency s decision, but on whether the process employed by the agency to reach its decision took into consideration all the relevant facts. ). However, the record does not include every scrap of paper 10 that could or might have been created on a subject. 11 Norton, 193 F. Supp. 2d 182, 195 (D.D.C. 2002). 12 TOMAC v. A broad application of the phrase before the agency would undermine the value of judicial review: Interpreting the word before so broadly as to encompass any potentially relevant document existing within the agency or in the hands of a third party would render judicial review meaningless. Thus, to ensure fair review of an agency decision, a reviewing court should have before it neither more nor less information than did the agency when it made its decision. 13 14 15 16 17 18 19 Pac. Shores Subdivision v. U.S. Army Corps of Eng rs, 448 F. 20 Supp. 2d 1, 5 (D.D.C. 2006) (internal citations and quotations 21 omitted). 22 became available after the agency s decision had already been 23 made ( post-decisional documents). 24 Power Corp. v. NRDC, 435 U.S. 519, 555 (1978)(judicial review is 25 26 27 28 The record certainly need not include documents that See Vermont Yankee Nuclear limited [] by the time at which the decision was made.... ); Karuk tribe v. U.S. Forest Serv., 379 F. Supp. 2d 1071, 1090 (N.D. Cal. 2005)(court may not consider information created 4 1 during the litigation that was not available at the time the 2 [agency] made its decision )(citations omitted). 3 4 2. Presumption of Regularity. 5 An agency s designation and certification of the AR is McCrary v. Gutierrez, 6 entitled to a presumption of regularity. 7 495 F. Supp. 2d 1038, 1041 (N.D. Cal. 2007)(citing Bar MK Ranches 8 v. Yuetter, 994 F.2d 735, 740 (10th Cir. 1993)). 9 10 Absent clear evidence to the contrary a court must presume that an agency has properly discharged [its] official duties. United States v. 11 12 Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926); see also Bar 13 MK Ranches, 994 F.2d at 73-40 (while the agency may not 14 unilaterally determine what constitutes the administrative 15 record the courts assume[] the agency properly designated the 16 [AR] absent clear evidence to the contrary ). 17 18 19 20 21 Plaintiffs bear the burden of overcoming this presumption. See id.; Glasser v. NMFS, 2008 WL 114913, *1 (W.D. Wash. Jan. 10 2008)(plaintiffs seeking to supplement the AR must present clear evidence sufficient to overcome the presumption of administrative 22 regularity.... ). 23 evidence that the existing AR is so inadequate that it will 24 frustrate judicial review. 25 n.25 (9th Cir. 1990)(denying motion to supplement where original 26 27 28 Specifically, Plaintiffs must present clear Rybacheck v. EPA, 904 F.2d 1276, 1296 record [] adequately explains the basis of [the agency s] decision and demonstrates that the [agency] considered the 5 1 2 3 4 relevant factors ). Plaintiffs do not dispute the applicability of this See presumption and that they bear the burden of overcoming it. Docket 140 at 8. Instead, Plaintiffs maintain that, [h]ere, it 5 6 7 is clear that the NMFS Record was not properly assembled. Id. Plaintiffs observe that Federal Defendants have already submitted 8 five versions of the NFMS record, twice because they failed to 9 include thousands of documents. 10 that the index to the NMFS AR is riddled with inaccuracies and 11 misnumbering... 12 13 14 15 Id. Id. Moreover, Plaintiffs assert This, Plaintiffs suggest, is sufficient to overcome the presumption of regularity. It is neither irregular nor particularly surprising that in this complex case, brought on an expedited basis due to the 16 urgent nature of Plaintiffs requests for relief, some documents 17 that belong in the AR were inadvertently omitted. 18 have had to communicate and cooperate with each other extensively 19 to clarify the AR s content, and some technical inaccuracies in 20 the AR s index have been discovered. 21 The parties Plaintiffs have not presented evidence sufficient to overcome the presumption of 22 23 24 regularity. It is necessary, then, to examine Plaintiffs specific contentions in detail to determine whether they have 25 otherwise met their burden as to specific categories of 26 documents. 27 28 6 1 3. 2 South Delta Plaintiffs Motion to Supplement a. 3 (1) 4 5 6 7 Documents Plaintiffs Claim Were Improperly Excluded From the Record. Scientific Reports and Peer-Reviewed Articles Cited To Federal Defendants By Water Users (Documents 1-14). The South Delta Plaintiffs seek to supplement the AR with Documents 1-14, scientific reports and peer-reviewed articles 8 cited to NMFS for its consideration in the course of its 9 preparation of the 2009 BiOp. 10 and articles referenced by a September 24, 2008 comment letter 11 sent by the San Luis & Delta-Mendota Water Authority 12 13 Documents 4-6, 10, 11, are reports ( Authority ) and the State Water Contractors ( SWC ) to Federal Defendants. The letter was included in the administrative 14 15 16 record. Although some of the cited references are included in the AR, Documents 4-6, 10, and 11 were omitted. 17 Documents 1-3, 7-9, and 12-14 were on a reference list 18 attached to a May 27, 2009 letter sent by the Authority and the 19 SWC to NMFS with comments on the draft salmon biological opinion 20 dated December 11, 2008. 21 22 23 24 This comment letter was included in the administrative record, as were some of the listed references, but Documents 1-3, 7-9, and 12-14 were excluded. Plaintiffs assert that each of these documents should be 25 added to the record because the document was cited to NMFS 26 before the 2009 BiOp was issued in comment letters that the 27 Federal Defendants have included in the administrative record. 28 7 1 Docket 140 at 8-9. 2 3 4 There is ample authority supporting the proposition that the agency must consider relevant data or reports presented to it prior to completion of a biological opinion. See Natural Res. 5 6 7 Def. Council v. Kempthorne, 506 F. Supp. 2d 322, 366-67 (E.D. Cal. 2007) (holding that the Service was required to consider 8 species population abundance data presented to it one week 9 before completion of the biological opinion); see also Grand 10 Canyon Trust v. U.S. Bureau of Reclamation, 2009 WL 941341, at 11 *4-*5 (D. Ariz. Apr. 6, 2009) (holding agency must consider 12 13 14 relevant report presented to it two weeks before completion of the biological opinion). Plaintiffs assert that Kempthorne and Grand Canyon Trust 15 16 stand for the proposition that any document placed before the 17 agency prior to the issuance of the BiOp must be included in the 18 AR. 19 v. Dalton, 24 C.I.T 1116, 2000 WL 1562928, at *1120-21 (C.I.T. 20 2000), the Court of International Trade refused to supplement the 21 This is not the law. For example, in Defenders of Wildlife administrative record with attachments to comment letters absent 22 23 24 evidence that those attachments were considered either directly or indirectly by the relevant decisionmakers. Plaintiffs point 25 to no absolutely no authority that requires an agency to track 26 down documents referenced in a comment letter but not attached 27 thereto. 28 This would be an unworkable rule, as it would permit a 8 1 party to force into the record any number of references, 2 regardless of relevance, simply by attaching to a comment letter 3 a list of references on a particular subject. 4 Plaintiffs request to supplement the record with Documents 5 6 7 8 1-14 on the ground that the documents were referenced in comment letters is DENIED. (2) 9 10 Documents Referenced in the Consultation History (Document 21). Plaintiffs seek to supplement the record with Document 21, a 11 compilation of declarations from PCFFA v. Gutierrez, 1:06-cv-245 12 OWW (E.D. Cal.). 13 the 2009 Salmonid BiOp, in a section of the BiOp entitled 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 These declarations are referenced at page 33 of consultation history, which indicates that the declarations were considered by the agency in preparing the BiOp. This document is NMFS Opinion on the proposed action, in accordance with section 7 of the Endangered Species Act (ESA) of 1973, as amended (16 U.S.C. 1531 et seq.). The request for formal consultation was received on October 1, 2008. This final Opinion supersedes the 2004 CVP/SWP operations Opinion. This Opinion is based on: (1) the reinitiation package provided by Reclamation, including the CVP/SWP operations BA, received by NMFS on October 1, 2008; (2) the supplemental analysis of effects on the proposed critical habitat of Southern DPS of green sturgeon and supplemental information regarding the EFH assessment on fall-run; (3) other supplemental information provided by Reclamation; (4) declarations submitted in court proceedings pursuant to Pacific Coast Federation of Fishermen Association (PCFFA) et al. v. Gutierrez et al.; and (5) scientific literature and reports. A complete administrative record of this consultation is on file at the NMFS, Sacramento Area Office. BiOp at 33 (emphasis added). Federal Defendants nevertheless oppose supplementation of 9 1 2 3 4 5 6 7 8 9 the record with these declarations: The product of litigation, these declarations have no place in the agencies consideration of the best available science. The factual matters discussed in these declarations are thoroughly documented in the BiOp and the current record and Plaintiffs do not even attempt to represent to the contrary. To the extent a party seeks to rely on these declarations, they must submit a request for judicial notice as is frequently done in this ongoing litigation. Docket 227 at 12. Federal Defendants position, taken in the context of litigation, is directly contradicted by the text of the BiOp. 10 11 12 13 14 15 16 For this reason, and because the declarations would be subject to judicial notice in any event, Plaintiffs motion to supplement the AR with Document 21 is GRANTED. b. Documents Plaintiffs Seek to Introduce Under One of the Exceptions to the Record Review Rule. In addition to permitting supplementation with documents 17 that were part of the whole record but were excluded from the 18 AR, the district court may also consider extra-record materials 19 20 21 22 in an APA case under four narrow exceptions: (1) when it needs to determine whether the agency has considered all relevant factors and has explained its decision; 23 (2) when the agency has relied upon documents or materials not included in the record; 24 (3) when it is necessary to explain technical terms or complex matters; and 25 26 27 28 (4) when a plaintiff makes a showing of agency bad faith. Southwest Center for Biological Diversity v. United States Forest 10 1 Service, 100 F.3d 1443, 1450 (9th Cir. 1996). 2 extra-record material may be considered under any of these 3 exceptions, a plaintiff must first make a showing that the record 4 is inadequate. However, before Animal Defense Council v. Hodel, 840 F.2d 1432, 5 6 7 1437 (9th Cir. 1988) (review of extra-record evidence inappropriate where plaintiff makes no showing that the district 8 court needed to go outside the administrative record to determine 9 whether the [agency] ignored information ). 10 Plaintiffs seek to supplement the record with certain 11 documents they contend fall within these recognized exceptions. 12 13 14 15 16 17 18 (1) Documents Pertaining to Other Stressors. (a) Documents Pertaining to Predators (Documents 1, 4, 9, and 39-41). Plaintiffs seek to supplement the record with Documents 1, 4, and 9 to demonstrate the failure on the part of NMFS to give appropriate consideration to the prevalence of centrarchids, 19 particularly the largemouth bass, in the Delta, and the degree to 20 which their predation on migrating salmon has compromised certain 21 salmonid ESUs as a result. 22 23 24 Docket 263 at 6. Federal Defendants maintain that Documents 1 and 9 are cumulative of the discussion that is contained in the BiOp regarding predation and nonnative species. Id. at 10-11, n. 4 25 26 27 28 (citing BiOp at 146-148, 154, 207, 215, 347-350, 374). The cited portions of the BiOp discuss, among other things, predation patterns in various habitat and geographic locations and the 11 1 2 3 4 effect of water development activities on predation rates. Plaintiffs offer Document 1, an article published by Lenny Grimaldo, et al., which found that marsh edge habitats supported a prominent abundance of centrarchids, a family of freshwater 5 6 7 fish to which the largemouth bass belongs. Plaintiffs argue that [a]lthough the BiOp briefly mentions the fact that vegetated 8 channels provide coverage to largemouth bass (BiOp at 374), it 9 completely fails to consider Grimaldo s key observation regarding 10 the prevalence of largemouth bass in these vegetated corridors 11 and the impact of these largemouth bass on salmon migrating 12 13 14 15 through these corridors. Docket 263 at 6. misapply the relevant factors exception. But, Plaintiffs Document 1 does not raise an entirely new factor that Federal Defendants failed to 16 consider. 17 exceptions to the record review rule, including the relevant 18 factors exception, must be interpreted narrowly. 19 Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. 20 Dept. of Agric., 499 F.3d 1108, 1117 (9th Cir. 2007). 21 Rather, it raises nuanced points about predation. The See Ranchers Accordingly, the relevant factors exception only applies when 22 23 24 Federal Defendants fail to consider a general subject matter that is demonstrably relevant to the outcome of the agency s decision, 25 not when specific hypotheses and/or conclusions are omitted from 26 consideration. 27 a truck through what is supposed to be a narrow exception to the 28 To hold otherwise would allow Plaintiffs to drive 12 1 record review rule. 2 The same applies to Document 9, an article authored by Mike 3 Chotowski, currently with the Bureau of Reclamation, which found 4 that nonnative centrarchids, including largemouth bass, dominate 5 6 7 vegetated habitats of the Delta. Plaintiffs maintain that the BiOp should have, but did not, consider the implications of 8 largemouth bass abundance on salmon populations. 9 merely offers a nuanced point about predator populations; it does 10 not offer an entirely new consideration. 11 12 13 14 15 Document 9 Likewise, Document 4, an article prepared by William J. Kimmerer in 2001 that discusses population dynamics of the striped bass, another known predator of salmon, does not point to an entirely new factor Federal Defendants neglected to 16 consider. 17 BiOp at 147, 374. 18 striped bass abundance does not require the conclusion that 19 Federal Defendants entirely failed to consider a relevant factor. 20 21 22 23 24 25 26 27 28 The BiOp discusses striped bass predation of salmon, That there is no specific discussion of The same conclusion applies to Documents 39 and 40. Document 39 is a 1997 telemetry study by Gingras and McGee, which studied movements of striped bass through the radial gates at Clifton Court Forebay to determine the feasibility of predator removal as a method to decrease pre-screen loss of fish in CCF. Document 40, cited in Document 39, is a 1990 study by Kano on the occurrence and abundance of predator fish in CCF, which discussed flow velocity in CCF and its effect on emigration of predators from CCF and found, among other things, predator emigration to be greater than previously assumed, resulting in overestimates of predators and their threat to listed species. 13 1 Document 41 is the final version of a draft study on 2 quantification of pre-screen loss of juvenile steelhead in 3 Clifton Court Forebay already in the record. 4 00113074. AR 00112850- Plaintiffs maintain that Document 41 should have been 5 6 7 included in the record because NMFS knew by April 17, 2009 that the final report was available. AR 00086690. Critically, the 8 final study corrected an error in the draft report regarding how 9 the equation for pre-screen loss was documented. 10 the relevant factors exception cannot be used to supplement the 11 record with this document. 12 13 14 15 Nevertheless, A final draft of a study already considered by Federal Defendants cannot, ipso facto, direct Federal Defendants attention to an entirely new factor. Arguendo, these studies may represent the best available 16 science regarding the impacts of predation on salmonids, such 17 that by failing to consider such evidence NMFS acted arbitrarily 18 and/or capriciously. 19 documents for that purpose. 20 21 Plaintiffs, however, do not offer these The request to supplement the record with Documents 1, 4, 9 and 39-41 is DENIED WITHOUT PREJUDICE to a showing, supported by 22 23 24 25 26 27 28 expert opinion, that these documents are best available science that was ignored or given insufficient weight. (b) Documents Pertaining to Pesticides (Documents 2 and 24-31). Plaintiffs offer Documents 2 and 24-31, which concern the impacts of pesticides on salmonids. 14 Plaintiffs acknowledge that 1 the BiOp discusses pesticides, but maintain that the BiOp vastly 2 understates the significance of the common pesticides and 3 herbicides on the species. 4 Docket 263 at 8 (citing BiOp at 91, 128, 130-33, 139-43, 197, 446, 518, 558, 629 as examples of how 5 6 7 the BiOp acknowledges the presence of contaminants and adverse impacts that may result from exposure to contaminants, and BiOp 8 at 467, 499, 547, 554, 567, as examples of where the BiOp 9 attempts to place blame for exposure to contaminants on CVP/SWP 10 operations ). 11 12 13 14 15 Document 2 is a NOAA Fisheries 2008 biological opinion on the Environmental Protection Agency s Registration of Pesticides containing Chlorpyrifos, which reaches a jeopardy determination ( Chlorpyrifos BiOp ). Federal Defendants argue that Document 2 16 is cumulative of the BiOp s general references to pesticides. 17 Document 227 at 12. 18 determination in Document 2 is a relevant factor that NMFS failed 19 to consider in its analysis: 20 21 22 23 24 25 Plaintiffs respond that the jeopardy Nowhere does the 2009 NMFS BiOp acknowledge NMFS s own prior conclusions that Chloropyrifos, Diazinon and Malathion have harmed the listed species, are likely to jeopardize the winter-run and spring-run Chinook salmon and Central Valley Steelhead, and are likely to result in the destruction or adverse modification of critical habitat of these species. Document 263 at 8. This argument touches upon an issue that goes to the heart 26 27 28 of many of Plaintiffs merits arguments. Plaintiffs suggest that the BiOp s own jeopardy determination regarding the impacts of 15 1 coordinated operations on salmonids did not sufficiently consider 2 the detrimental impacts of other relevant factors on the 3 salmonids. 4 That another stressor was found to jeopardize salmonids does not necessarily undermine the jeopardy conclusion 5 6 7 in the BiOp. Rather, the BiOp must support its conclusions regarding the impact to the species caused by coordinated 8 operations. 9 omitted (or are so cursorily considered as to be effectively 10 omitted) from the analysis, additional information on the impact 11 of pesticides cannot come in under the relevant factors 12 13 14 15 exception. Moreover, so long as pesticides are not entirely If these documents establish that NMFS acted arbitrarily and capriciously by effectively ignoring a substantial factor, this must be demonstrated by expert opinion. 16 The same conclusion applies to Documents 24-31. 17 argue that these documents fill gaps in NMFS s reasoning 18 regarding specific pesticides or specific sources of exposure not 19 covered in the BiOp, but do no more than roughly summarize the 20 contents of these Documents as follows: 21 22 23 24 25 26 27 28 Plaintiffs Documents 24 29 are scientific studies, all but one of which were peer-reviewed and published in scientific journals, which evaluate the harmful effects from specific pesticides or specific sources within the Delta. See Docs. 24 (impacts of pyrethroids from Sacramento urban drainage water), 25 (impacts of low levels of pesticides on immune systems), 26 (impacts of pyrethroids from urban creeks in the Sacramento area), 27 (impacts of pesticides in the Yolo Bypass), 28 (impacts of pesticides and herbicides throughout salmonid habitat), 29 (pesticide impacts transferred from parent to progeny); see also Docs. 30 and 31 (both addressing effects of ammonia on food availability). The 2009 BiOp does not evaluate these effects or 16 1 quantify them as part of the baseline. Given NMFS s jeopardy determination for pesticides, this body of materials either must have been intentionally omitted from the 2009 BiOp record, or recklessly overlooked and not used in its analysis. Admission of the documents is necessary to show the relevant factors and best available science that NMFS ignored without explanation. 2 3 4 5 6 7 Doc. 140 at 16. It is Plaintiffs burden to demonstrate that the existing record is insufficient. Given that the BiOp does 8 discuss the impacts of pesticides on salmonids, these general 9 descriptions coupled with the general assertion that they fill 10 gaps in the record is insufficient. 11 12 13 Alternatively, Plaintiffs argue that Documents 2 and 24-31 are necessary to explain the complex issue of pesticide and ammonia impacts to the listed species and that these studies 14 15 explain the manner and magnitude of impacts from a major stressor 16 to the listed species. 17 discuss the effect of ammonia on salmonids. 18 (discussing impact of ammonia from the City of Stockton s 19 Wastewater Treatment Plant on dissolved oxygen levels); 446 20 (noting that agricultural ammonia releases may affect salmonid 21 22 23 24 habitat). Doc. 263 at 8. But, the BiOp does See BiOp at 157 Plaintiffs suggested additions to the record do not suggest new relevant factors. Rather, Plaintiffs suggest that Federal Defendants did not give ammonia sufficient weight. These 25 documents do not fall within the relevant factors exception. 26 The request to supplement the record with Documents 2 and 27 28 24-31 is DENIED WITHOUT PREJUDICE. 17 1 (c) Hatcheries (Documents 13, 34, and 35) 2 Documents 13, 34, and 35 discuss the effects interbreeding 3 of hatchery salmon with wild salmon have on the fitness of wild 4 fish. 5 The BiOp discusses hatchery impacts on genetic diversity, BiOp at 87-88, 95, 109, the contribution of hatcheries to the 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 collapse of the fall run, id. at 142, as well as an entire section entitled Hatchery Operation and Practices, which discusses a number of impacts: Five hatcheries currently produce Chinook salmon in the Central Valley, and four of these also produce steelhead. Releasing large numbers of hatchery fish can pose a threat to wild Chinook salmon and steelhead stocks through genetic impacts, competition for food and other resources between hatchery and wild fish, predation of hatchery fish on wild fish, and increased fishing pressure on wild stocks as a result of hatchery production (Waples 1991). The genetic impacts of artificial propagation programs in the Central Valley are primarily caused by straying of hatchery fish and the subsequent interbreeding of hatchery fish with wild fish. In the Central Valley, practices such as transferring eggs between hatcheries and trucking smolts to distant sites for release contribute to elevated straying levels [U.S. Department of the Interior (DOI) 1999]. For example, Nimbus Hatchery on the American River rears Eel River steelhead stock and releases these fish in the Sacramento River basin. One of the recommendations in the Joint Hatchery Review Report (NMFS and CDFG 2001) was to identify and designate new sources of steelhead brood stock to replace the current Eel River origin brood stock. Hatchery practices as well as spatial and temporal overlaps of habitat use and spawning activity between spring- and fall-run fish have led to the hybridization and homogenization of some subpopulations (CDFG 1998). As early as the 1960s, Slater (1963) observed that spring-run and early fall-run were competing for spawning sites in the Sacramento River below Keswick Dam, and speculated that the two runs may have hybridized. Spring-run from the FRFH have been documented as straying throughout the Central Valley for many years (CDFG 1998), and in many cases have been recovered from the spawning grounds of fall-run, an indication that FRFH spring-run may exhibit fall-run 18 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 life history characteristics. Although the degree of hybridization has not been comprehensively determined, it is clear that the populations of spring-run spawning in the Feather River and counted at RBDD contain hybridized fish. The management of hatcheries, such as Nimbus Fish Hatchery and FRFH, can directly impact spring-run and steelhead populations by oversaturating the natural carrying capacity of the limited habitat available below dams. In the case of the Feather River, significant redd superimposition occurs in-river due to hatchery overproduction and the inability to physically separate spring-run and fall-run adults. This concurrent spawning has led to hybridization between the spring-run and fall-run in the Feather River. At Nimbus Hatchery, operating Folsom Dam to meet temperature requirements for returning hatchery fallrun often limits the amount if water available for steelhead spawning and rearing the rest of the year. The increase in Central Valley hatchery production has reversed the composition of the steelhead population, from 88 percent naturally-produced fish in the 1950s (McEwan 2001) to an estimated 23 to 37 percent naturally-produced fish currently (Nobriga and Cadrett 2003). The increase in hatchery steelhead production proportionate to the wild population has reduced the viability of the wild steelhead populations, increased the use of out-of-basin stocks for hatchery production, and increased straying (NMFS and CDFG 2001). Thus, the ability of natural populations to successfully reproduce and continue their genetic integrity likely has been diminished. The relatively low number of spawners needed to sustain a hatchery population can result in high harvest-toescapements ratios in waters where fishing regulations are set according to hatchery population. This can lead to over-exploitation and reduction in the size of wild populations existing in the same system as hatchery populations due to incidental bycatch (McEwan 2001). Hatcheries also can have some positive effects on salmonid populations. Winter-run produced in the LSNFH are considered part of the winter-run ESU. Spring-run produced in the FRFH are considered part of the springrun ESU. Artificial propagation has been shown to be effective in bolstering the numbers of naturally spawning fish in the short term under specific scenarios. Artificial propagation programs can also aid in conserving genetic resources and guarding against catastrophic loss of naturally spawned populations at critically low abundance levels, as was the case with the winter-run population during the 1990s. However, 19 1 2 3 4 5 relative abundance is only one component of a viable salmonid population. BiOp at 143-44. Document 13 is a 2005 editorial by Brown entitled Understanding Central valley Chinook salmon and steelhead: it s 6 time to get off the dime, that concludes we have a poor 7 understanding of the effects of [] hatcheries on naturally 8 spawning salmonids, and suggests a comprehensive salmon research 9 and monitoring program is necessary. 10 11 Plaintiffs fail to explain how this editorial demonstrates that Federal Defendants have failed to consider a relevant factor. 12 13 Document 34 is a 2007 study by Araki, et al., entitled 14 Genetic effects of captive breeding cause a rapid, cumulative 15 fitness decline in the wild, which found a 37.5% fitness decline 16 per captive-reared generation, suggesting even a few generations 17 of domestication may have negative effects on natural 18 reproduction in the wild. 19 20 21 22 Document 35, a 2004 study by Kostow, entitled Differences in juvenile phenotypes and survival between hatchery stocks and a natural population provide evidence for modified selection due to captive breeding, found that new 23 hatchery stock and naturally produced fish from the same parent 24 gene pool had significant differences in fitness. 25 argue that Documents 34 and 35 should be added to the record 26 under the relevant factors exception because they quantify the 27 28 Plaintiffs effect of hatchery interbreeding on wild fish in a manner that 20 1 has not been conducted in the past. 2 BiOp has discussed the specific topic raised in these papers: 3 the effect of hatchery stock on salmonid fitness. 4 It does not appear that the This issue is arguably distinct enough from the effect of hatchery stock on 5 6 7 8 genetic diversity to be considered a separate factor. Documents 34 and 35 are admissible for this purpose only. Plaintiffs also suggest that these Documents are admissible 9 under the exception that permits extra-record evidence when 10 necessary to aid the Court in understanding complex information 11 But, the BiOp discusses the effects of hatchery fish on wild fish 12 13 14 15 16 in detail. Plaintiffs have not demonstrated why this discussion is insufficient, with the exception of the possible gap in discussion of the impact of hatchery fish on salmonid fitness. Plaintiffs request to supplement the record with Document 17 13 is DENIED. Plaintiffs request to supplement the record with 18 Documents 34 and 35 is GRANTED. 19 to demonstrate that Federal Defendants failed to discuss the 20 effect of hatchery stock on salmonid fitness. Documents 34 and 35 may be used 21 22 23 (d) Ocean Conditions (Documents 10, 11, 12, and 23). Plaintiffs next offer Documents 10-12 and 23, which concern 24 25 26 27 28 the impact of ocean conditions on salmonids. The BiOp discusses the effects of ocean conditions in several places, most notably at pages 149-153, in a section entitled Ocean Productivity : 21 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 The time at which juvenile salmonids enter the marine environment marks a critical period in their life history. Studies have shown the greatest rates of growth and energy accumulation for Chinook salmon occur during the first 1 to 3 months after they enter the ocean (Francis and Mantua 2003, MacFarlane et al. 2008). Emigration periods and ocean entry can vary substantially among, and even within, races in the Central Valley. For example, winter-run typically rear in freshwater for 5-9 months and exhibit a peak emigration period in March and April. Spring-run emigration is more variable and can occur in December or January (soon after emergence as fry), or from October through March (after rearing for a year or more in freshwater; CVP/SWP operations BA). In contrast to Chinook salmon, steelhead tend to rear in freshwater environments longer (anywhere from 1 to 3 years) and their period of ocean entry can span many months. Juvenile steelhead presence at Chipps Island has been documented between at least October and July (CVP/SWP operations BA). While still acknowledging this variability in emigration patterns, the general statement can be made that Chinook salmon typically rear in freshwater environments for less than a year and enter the marine environment as subyearlings in late spring to early summer. Likewise, although steelhead life histories are more elastic, they typically enter the ocean in approximately the same time frame. This general timing pattern of ocean entry is commonly attributed to evolutionary adaptations that allow salmonids to take advantage of highly productive ocean conditions that typically occur off the California coast beginning in spring and extending into the fall (MacFarlane et al. 2008). Therefore, the conditions that juvenile salmonids encounter when they enter the ocean can play an important role in their early marine survival and eventual development into adults. It is widely understood that variations in marine survival of salmon correspond with periods of cold and warm ocean conditions, with cold regimes being generally favorable for salmon survival and warm ones unfavorable (Behrenfeld et al. 2006, Wells et al. 2006). Peterson et al. (2006) provide evidence that growth and survival rates of salmon in the California Current off the Pacific Northwest can be linked to fluctuations in ocean conditions. An evaluation of conditions in the California Current since the late 1970s reveals a generally warm, unproductive regime that persisted until the late 1990s. This regime has been followed by a period of high variability that began with colder, more productive conditions lasting from 1999 to 2002. In general, salmon populations increased substantially during this period. However, 22 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 this brief cold cycle was immediately succeeded by a 4year period of predominantly warm ocean conditions beginning in late 2002, which appeared to have negatively impacted salmon populations in the California Current (Peterson et al. 2006). Evidence suggests these regime shifts follow a more or less linear pattern beginning with the amount and timing of nutrients provided by upwelling and passing up the food chain from plankton to forage fish and eventually, salmon. There are also indications that these same regime shifts affect the migration patterns of larger animals that prey on salmon (e.g., Pacific hake, sea birds) resulting in a top-down effect as well (Peterson et al. 2006). Peterson et al. (2006) evaluated three sets of ecosystem indicators to identify ecological properties associated with warm and cold ocean conditions and determine how those conditions can affect salmon survival. The three sets of ecosystem indicators include: (1) large-scale oceanic and atmospheric conditions [specifically, the Pacific Decadal Oscillation (PDO) and the Multivariate ENSO Index]; (2) local observations of physical and biological ocean conditions off northern Oregon (e.g., upwelling, water temperature, plankton species compositions, etc.); and (3) biological sampling of juvenile salmon, plankton, forage fish, and Pacific hake (which prey on salmon). When used collectively, this information can provide a general assessment of ocean conditions in the northern California Current that pertain to multi-year warm or cold phases. It can also be used to develop a qualitative evaluation for a particular year of the effect these ocean conditions have on juvenile salmon when they enter the marine environment and the potential impact to returning adults in subsequent years. The generally warmer ocean conditions in the California Current that began to prevail in late 2002 have resulted in coastal ocean temperatures remaining 1-2°C above normal through 2005. A review of the previously mentioned indicators for 2005 revealed that almost all ecosystem indices were characteristic of poor ocean conditions and reduced salmon survival. For instance, in addition to the high sea surface temperatures, the spring transition, which marks the beginning of the upwelling season and typically occurs between March and June, was very late, postponing upwelling until midJuly. In addition, the plankton species present during that time were the smaller organisms with lower lipid contents associated with warmer water, as opposed to the larger, lipid-rich organisms believed to be essential for salmon growth and survival throughout the winter. The number of juvenile salmon collected during 23 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 trawl surveys was also lower than any other year previously sampled (going back to 1998, Peterson et al. 2006). Furthermore, although conditions in 2006 appeared to have improved somewhat over those observed in 2005 (e.g., sea surface temperature was cooler, the spring transition occurred earlier, and coastal upwelling was more pronounced), not all parameters were necessarily good. In fact, many of the indicators were either intermediate (e.g., PDO, juvenile Chinook salmon presence in trawl surveys) or poor (e.g., copepod biodiversity, Peterson et al. 2006). Updated information provided by Peterson et al. (2006) on the NWFSC Climate Change and Ocean Productivity website shows the transition to colder ocean conditions, which began in 2007, has persisted throughout 2008. All ocean indicators point toward a highly favorable marine environment for those juvenile salmon that entered the ocean in 2008. After remaining neutral through much of 2007, PDO values became negative (indicating a cold California Current) in late 2007 and remained negative through at least August, 2008, with sea surface temperatures also remaining cold. Coastal upwelling was initiated early and will likely be regarded as average overall. Furthermore, the larger, energy-rich, cold water plankton species have been present in large numbers in 2007 and 2008. Therefore, ocean conditions in the broader California Current appear to have been favorable for salmon survival in 2007 and to a greater extent in 2008, which bodes well for Chinook salmon populations returning in 2009 and 20103. These ecosystem indicators can be used to provide an understanding of ocean conditions, and their relative impact on marine survival of juvenile salmon, throughout the broader, northern portion of the California Current. However, they may not provide an accurate assessment of the conditions observed on a more local scale off the California coast. Wells et al. (2008a) developed a multivariate environmental index that can be used to assess ocean productivity on a finer scale for the central California region. This index (also referred to as the Wells Ocean Productivity Index) has also tracked the Northern Oscillation Index, which can be used to understand ocean conditions in the North Pacific Ocean in general. The divergence of these two indices in 2005 and 2006 provided evidence that ocean conditions were worse off the California coast than they were in the broader North Pacific region. The Wells et al. (2008a) index incorporates 13 oceanographic variables and indices and has correlated well with the productivity of zooplankton, juvenile shortbelly rockfish, and common murre production along the California coast (MacFarlane et al. 2008). In addition to its use as an 24 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 indicator of ocean productivity in general, the index may also relate to salmon dynamics due to their heavy reliance on krill and rockfish as prey items during early and later life stages. For instance, not only did the extremely low index values in 2005 and 2006 correlate well with the extremely low productivity of salmon off the central California coast in those years, but the index also appears to have correlated well with maturation and mortality rates of adult salmon from 1990-2006 in that region (Wells and Mohr 2008). Although not all of the data are currently available to determine the Wells et al. (2008a) index values for 2007 and 2008, there is sufficient information to provide an indication of the likely ocean conditions for those 2 years, which can then be compared to 2005 and 2006. A review of the available information suggests ocean conditions in 2007 and 2008 have improved substantially over those observed in 2005 and 2006. For instance, the spring transition, which marks the beginning of the upwelling season and typically occurs between March and June, was earlier in 2007 and 2008 compared to 2005 and 2006. An early spring transition is often indicative of greater productivity throughout the spring and summer seasons (Wells and Mohr 2008, Peterson et al. 2006). Coastal upwelling, the process by which cool, nutrient rich waters are brought to the surface (perhaps the most important parameter with respect to plankton productivity), was also above average in 2007 and 2008. Moreover, coastal sea surface temperature and sea level height (representative of the strength of the California current and southern transport) values were also characteristic of improved ocean productivity (Wells and Mohr 2008). Thus, contrary to the poor ocean conditions observed in the spring of 2005 and 2006, the Wells et al. (2008a) index parameters available at this time indicate spring ocean conditions have been generally favorable for salmon survival off California in 2007 and 2008. In contrast to the relatively good ocean conditions that occurred in the spring, the Wells et al. (2008a) index values for the summer of 2007 and 2008 were poor in general, and similar to those observed in 2005 and 2006. Summer sea surface temperature followed a similar pattern in both 2007 and 2008, starting out cool in June, and then rising to well above average in July before dropping back down to average in August (Wells and Mohr 2008). The strong upwelling values observed in the spring of 2007 and 2008 were not maintained throughout the summer, and instead dropped to either at or below those observed in 2005 and 2006. Finally, sea level height and spring curl values (a mathematical representation of the vertical component of wind shear 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 which represents the rotation of the vector field), which are negatively correlated with ocean productivity, were both poor (Wells and Mohr 2008). Therefore, during the spring of 2007 and 2008, ocean conditions off California were indicative of a productive marine environment favorable for ocean salmon survival (and much improved over 2005 and 2006). However, those conditions did not persist throughout the year, as Wells et al. (2008a) index values observed in the summer of 2007 and 2008 were similar to those experienced in the summer of 2005 and 2006, 2 years marked by extremely low productivity of salmon off the central California coast. Evidence exists that suggests early marine survival for juvenile salmon is a critical phase in their survival and development into adults. The correlation between various environmental indices that track ocean conditions and salmon productivity in the Pacific Ocean, both on a broad and local scale, provides an indication of the role they play in salmon survival in the ocean. Moreover, when discussing the potential extinctions of salmon populations, Francis and Mantua (2003) point out that climate patterns would not likely be the sole cause but could certainly increase the risk of extinction when combined with other factors, especially in ecosystems under stress from humans. Thus, the efforts to try and gain a greater understanding of the role ocean conditions play in salmon productivity will continue to provide valuable information that can be incorporated into the management of these species and should continue to be pursued. However, the highly variable nature of these environmental factors makes it very difficult, if not impossible, to accurately predict what they will be like in the future. Because the potential for poor ocean conditions exists in any given year, and there is no way for salmon managers to control these factors, any deleterious effects endured by salmonids in the freshwater environment can only exacerbate the problem of an inhospitable marine environment. Therefore, in order to ensure viable populations, it is important that any impacts that can be avoided prior to the period when salmonids enter the ocean must be carefully considered and reduced to the greatest extent possible. (footnote omitted). 25 Plaintiffs argue that the BiOp fails to thoroughly analyze 26 the primary importance of recent ocean conditions on the decline 27 28 of the listed species. Doc. 263 at 10. 26 Document 10, a 1998 1 article by Gustavo A. Bisbal and Willis E. McConnaha, concludes 2 that the ocean, not freshwater, conditions primarily determine 3 overall salmon abundance. 4 Document 11, a 2008 brief by Randy Ericksen, demonstrates that take of Chinook salmon in ocean 5 6 7 fisheries is far more significant than take through entrainment. Document 12, a stock assessment and fishery evaluation report 8 prepared by the Pacific Fisheries Management Council in 9 collaboration with scientists from various federal and state 10 agencies, including NMFS, the Southwest Fisheries Science Center, 11 and the California Department of Fish and Game, illustrates the 12 13 14 15 16 extent to which the ocean environment has been unfavorable to salmon, noting the precipitous decline in sardine, anchovy, and krill populations - all of which were key prey items of Pacific salmonid during the same years. 17 The BiOp does address, albeit indirectly, the relative 18 importance of ocean conditions vis-a-vis freshwater conditions by 19 concluding that, because ocean conditions vary from year to year 20 and because there is nothing managers can do to address ocean 21 conditions, the conditions salmonids face before they reach the 22 23 24 ocean must be carefully considered. with emphasis above). See BiOp at 152-53 (quoted Essentially, the BiOp concludes that 25 whether or not ocean conditions are the primary cause of 26 salmonid decline is largely irrelevant to an evaluation of 27 whether coordinated project operations cause jeopardy. 28 27 However, 1 the BiOp does rely in part on comparisons of export levels at the 2 juvenile stage against escapement from the ocean two years later 3 to justify the imposition of certain export restrictions. 4 Appendix 5 at 21. BiOp Whether reliance on such a comparison is 5 6 7 reasonable may turn in part on the relative importance to the population of ocean conditions vis-Ã -vis freshwater influences at 8 the juvenile stage. 9 issue justifies supplementation of the record with Documents 10, 10 11, and 12 under the relevant factors exception. 11 12 13 14 15 The BiOp s failure to address squarely this Document 23 is a technical memorandum that interprets and explains a critical study by Lindley that is already in the record. Given that the study upon which Document 23 focuses is already in the record, Plaintiffs have not explained why Document 16 23 raises a relevant factor that was not considered or explains 17 complex or technical information. 18 demonstrate that the existing record is inadequate. 19 20 It is Plaintiffs burden to Plaintiffs request to supplement the record is GRANTED as to Documents 10, 11, and 12, and DENIED as to 23 21 (2) 22 23 24 Documents Pertaining to CVP/SWP Operations (Documents 5, 6, and 36). (a) Documents 5 and 6. Document 5 is a 2005 report by Manly for Westlands Water 25 26 27 28 District, entitled Some further analysis of the Paired ReleaseRecovery Data. Document 6 is a 2004 report prepared by Newman for FWS, entitled Assessing an export effect on releases of 28 1 Chinook salmon smolts from Ryde. 2 Plaintiffs entire argument for the admission of these 3 documents under one of the exceptions to the record review rule 4 states: 5 6 7 8 9 10 11 12 13 14 15 16 17 [] Documents 5 and 6 are necessary to explain the technical terms and complex subject matter central to Plaintiffs assertion that the 2009 BiOp fails to rationally relate impacts of the CVP and SWP to population level effects of the endangered and threatened species. Kern County Water Agency s Complaint for Declaratory and Injunctive Relief, 17:67, Aug. 26, 2009 (Doc. 1) ( The 2009 BiOp fails to consider available scientific and commercial data suggesting there is little evidence of any association between exports and salmon survival. ). Specifically, both documents are necessary to explain the insignificance of any effects on the salmon population from Delta cross-channel operations. Consideration of this literature would prove extremely useful to explain NMFS s overestimation of the risk of direct effects of project operations, and to compare with existing agency analysis to determine whether NMFS in fact included all relevant factors in reaching its jeopardy conclusion. Documents 140 at 20. Plaintiffs belief that consideration of this literature would prove extremely useful is insufficient. 18 The Court is not required to scour the record in support of 19 Plaintiffs motion to supplement. 20 21 Plaintiffs motion to supplement the record with Documents 5, 6, and 36 is DENIED. 22 23 24 (b) Document 36. Plaintiffs showing with respect to Document 36, a study 25 dated April 2, 2009, entitled Estimating survival and migration 26 route probabilities of juvenile Chinook salmon in the Sacramento- 27 San Joaquin Rover Delta, is more robust. 28 29 Plaintiffs argue that 1 Document 36 should be admitted under the relevant factors 2 exception because: 3 Document 36 is a study that discusses how movements among, and survival within migration routes interact to influence population-level survival of salmon smolts through the Delta. The study develops a model for the Delta to estimate the probability of juvenile salmon migrating through each of four migration routes and the probability of surviving through each route. The study uses the first available acoustic telemetry data of smolt migration through the Delta and provides the first quantitative glimpse into migration dynamics of juvenile salmon smolts in the Sacramento River and examines how different components interact to affect survival of the population migrating through the Delta. This article is co-authored by a NMFS biologist and was therefore was available to NMFS at the time of the BiOp. In addition, this study uses first available data and for the first time presents quantitative information regarding population level survival through the Delta. This data is not otherwise presented in the AR, but it is important in determining what effects the projects may have on salmon migrating through the Delta. *** 4 5 6 7 8 9 10 11 12 13 14 15 Doc. 140 at 19. Plaintiffs emphasize that the copy they submitted as part of 16 17 their motion to augment was dated April 2, 2009, two months 18 before the BiOp was published. 19 20 authors are NMFS biologists. Moreover, two of the seven Federal Defendants maintain that this study was not available to the agency within a reasonable 21 22 time before completion of the BiOp because it was not published 23 until after January 2010. 24 this study was before the agency prior to the issuance of the 25 BiOp. 26 27 28 Plaintiffs have not demonstrated that Plaintiffs alternatively argue that this document explains migration routes and timing of migration and therefore aids the 30 1 Court s understanding of salmon migration. 2 not demonstrated that the present record insufficiently describes 3 salmon migration. 4 But, Plaintiffs have Plaintiffs request to supplement the AR with Document 36 is 5 6 DENIED. 7 8 Documents Concerning Biostatistics / Viability Analysis (Documents 3, 7, 8, 14, 37, and 38). 9 (a) 10 11 12 (3) Best Available Science Argument. Plaintiffs first assert that the administrative record should be supplemented with Documents 3, 7, 8, 14, 37, and 38 because material in those documents represents best available 13 14 science that was ignored or given insufficient weight by Federal 15 Defendants. 16 December 16, 2009 Memorandum Decision in the Delta Smelt 17 Consolidated Cases, 1:09-CV-00407, Docket 462. 18 explained that expert testimony is required to determine whether 19 a particular study represents best available science that was 20 21 22 23 24 25 26 In support of this decision, Plaintiffs cite a disregarded or given insufficient weight. That decision See id. at 14-15. such expert testimony has been presented as part of Plaintiffs motion to augment. This is a failure of proof. The motion is DENIED WITHOUT PREJUDICE on this ground. (b) Relevant Factors Argument. Plaintiffs next argue that Documents 3, 7, 8, 14, 37, and 38 27 28 No are necessary to demonstrate that Federal Defendants did not 31 1 consider all relevant factors and did not explain their decision. 2 Document 3, is a 2008 analysis of Chinook prey availability 3 4 and biological requirements in Coastal Range of Southern Residential re: Supplemental Comprehensive Analysis of Southern 5 6 7 Resident killer whales. Without any explanation, Plaintiffs assert that this analysis demonstrates that Federal Defendants 8 did not consider all relevant factors prior to reaching its 9 jeopardy conclusion with respect to the Southern Resident killer 10 whale. 11 12 13 14 15 Docket 263 at 12. This is an insufficient showing. Document 7 describes a quantitative modeling approach adopted by the Interior Columbia Technical Recovery Team ( ICTRT ) to evaluate productivity and abundance of Columbia River salmonids. Plaintiffs suggest that the record should be 16 supplemented to include Document 7 because NMFS acknowledged in 17 the BiOp the benefit this type of quantitative modeling towards 18 understanding the relative importance of proposed action-related 19 effects at various life stages on overall abundance, BiOp at 67, 20 yet the BiOp failed to perform any quantitative analysis. 21 Plaintiffs attempt to admit this document under the relevant 22 23 24 factors exception is misplaced. The BiOp does acknowledge the value of quantitative population modeling. Whether or not the 25 ICTRT modeling approach represents best available science that 26 could have been applied to the Central Valley salmonids but was 27 not is a separate question. 28 Admissibility of this document must 32 1 be supported by expert testimony. 2 3 4 It has not been. Document 8 is the Biological Opinion for the Federal Columbia River Power System. Plaintiffs maintain that [t]his document demonstrates the appropriate timeline for assessing 5 6 7 viability of a subject species, which should be equal to the amount of time for which take coverage or recovery efforts will 8 be provided, in that instance, 24 years. 9 According to Plaintiffs: 10 NMFS applied a long-term, 100-year standard to evaluate extinction risk based on the Viability Salmonid Population ( VSP ) framework. BiOp at 42, 51. By using VSP parameters, however, the BiOp erroneously required the Project s effects to meet a more stringent long-term recovery goal, that being if the risk to recovery under baseline and Project conditions is greater than 5 percent over 100 years, the BiOp concludes that the recovery prong cannot be met. This long-term recovery goal is in contrast to similar biological opinions that evaluate recovery over a much shorter time period to be consistent with the legal standard articulated in National Wildlife Federation v. National Marine Fisheries Service, 524 F.3d 917 (9th Cir. 2007). Document 8 was therefore provided to show that extinction risk is typically considered over a much shorter period than that adopted in the BiOp, typically the length of the take coverage for the proposed action. 11 12 13 14 15 16 17 18 19 20 Id. 21 use of the best available science. 22 23 24 25 Docket 263 at 14. Again, this is a highly technical argument that goes to the Admissibility of this document must be supported by expert testimony. It has not been. Document 14 is an article by Stephen P. Cramer, which demonstrates that the primary native run of steelhead to the 26 Sacramento Basin, upstream of the Feather River, was summer 27 steelhead, not winter steelhead. 28 discussion of steelhead completely overlooks this evidence as 33 Plaintiffs argue that NMFS 1 demonstrated by NMFS s...assertion that [o]nly winter steelhead 2 are currently found in Central Valley rivers and streams. 3 at 104. 4 Docket 140 at 21. BiOp The BiOp does not discuss the possibility that there may have been or currently may be another 5 6 7 run of steelhead present in the upper Sacramento River basin. Although the significance of this failure is far from clear, 8 Document 14 is admissible to demonstrate the BiOp s failure to 9 consider this factor. 10 The BiOp concludes that the CVP and SWP operations are 11 likely to jeopardize the existence of the Southern Resident 12 13 14 15 killer whale ( Southern Resident ) because the project operations jeopardize the Southern Resident s predominant prey, the Chinook salmon. BiOp at 489, AR 00106569. The BiOp states that from May 16 to September, the Southern Resident s diet consists of 86 percent 17 Chinook salmon and from May to December, their diet consists of 18 69 percent Chinook salmon. 19 20 21 BiOp at 163, AR 00106243. Document 37, McCluskey 2006, analyzes the relationship between Southern Resident behavior and abundance and prey availability. Plaintiffs offer extensive argument why this study 22 23 24 25 26 27 28 should be admitted to demonstrate that Federal Defendants failed to consider a relevant factor: This study is unique due to its analytical approach, level of detail, and the study s extended time frame all of which yield detailed results that challenge the dominant literature s (i.e. the documents already part of the NMFS Record) assumptions about Southern Resident behavior in response to prey availability and may call into question assumptions (like those made in the BiOp) 34 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 about Southern Resident dietary requirements during winter months in coastal waters, including those in the action area. McCluskey 2006 examines two distinct lines of inquiry to document the relationship between the Southern Resident and its prey. First, McCluskey 2006 models the space use of Southern Resident SRC and links that movement behavior to variables such as population trends and relative prey availability (salmon). Specifically, McCluskey 2006 documents the results of a series of spatial pattern analytical approaches used to investigate variations in shape and size of pod movement behavior between and within salmon management areas. This line of inquiry yields results that challenge conventional views about the movement behavior of the Southern Resident and, for example, areas with high densities of salmon. McCluskey suggests that these results may indicate that whales do not preferentially occupy areas of higher salmon density and may be distributing themselves based on other factors such as alternative prey species (p. 76). See Final Recovery Plan for the Southern Resident Killer Whales (NMFS 2008) at II-29 (noting McCluskey 2006 counters the theory that the Southern Resident seek out and forage in areas in which salmon most commonly occur). McCluskey 2006 also compares trends in Southern Resident abundance to total abundance and escapement of Pacific salmon. The study compares abundance at different temporal and spatial scales over a 10-year period using variables including pod, salmon species, and time-lag. Again, the study yields new results that must be accommodated in the broad generalizations about SRC dietary requirements. For example, McCluskey notes that, [c]ontrary to observational and scale sampling evidence of chinook predation when escapement data were used no significant correlations between total chinook and total Southern Resident were found (p. 100). The data and analysis presented in McCluskey 2006 is not found elsewhere in the Record and it provides critical additional information regarding the Southern Resident s diet and abundance as it is related to prey availability, key factors in the BiOp s analysis and jeopardy conclusion. Furthermore, McCluskey 2006 explains movement behavior of the Southern Resident and trends in abundance. Docket 140 at 18. Plaintiffs insist that this document raises questions regarding the BiOp s assertions about the Southern 35 1 Residents reliance on Chinook salmon. 2 is insufficient to justify supplementation under the relevant 3 factors exception. NMFS has a duty to consider the best available science. However, expert testimony is required to 4 Docket 263 at 15. This 5 6 7 8 9 demonstrate that Document 37 is best available science that was ignored or given insufficient weight. The motion is DENIED WITHOUT PREJUDICE as to Document 37. Document 38, presents a critique of Lindley et al (2007), a 10 document cited numerous times in the BiOp, see, e.g., BiOp at 68, 11 88, 108, 486, and relied upon to establish the current status of 12 13 14 15 the listed Central Valley salmon and steelhead species, and to evaluate whether the proposed action does not reduce appreciably the likelihood of survival and recovery. Lindley et al (2007) 16 directly adopts and applies the criteria from Allendorf et al 17 (1997). 18 Allendorf (1997) on the ground that these criteria are based on 19 assumptions that are seldom true for Pacific salmon. 20 maintain that because Document 38 presents an evaluation of the 21 Document 38 directly critiques the criteria used in Plaintiffs criteria upon which the BiOp s jeopardy analysis is based, [it s 22 23 24 admission] is necessary to determine whether the agency considered all relevant factors. Plaintiffs misapply the 25 relevant factors exception. 26 factor the BiOp failed to consider. 27 scientific dispute over the merits of assumptions made in the 28 Document 38 does not point out a 36 Rather, it raises a 1 BiOp. 2 represents the best available science that was ignored or 3 disregarded, it may be considered for that purpose, but it is not 4 If expert testimony can establish that Document 38 admissible under the relevant factors exception. Plaintiffs 5 6 7 alternative argument that Document 38 is admissible as necessary to explain complex scientific information is not supported by any 8 showing that the current record does not sufficiently explain 9 extinction risk and population assessment. 10 use this exception to gain admission of otherwise inadmissible 11 documents. 12 13 14 15 16 17 18 19 20 21 Plaintiffs cannot Plaintiffs request to supplement the record is DENIED as to Documents 3, 7, 8, 37 and 38 and GRANTED as to Document 14. (4) Document Concerning RPA (Document 32). Document 32 is Reclamation s 2009 Technical Memorandum on the Effectiveness of a Non-Physical Fish Barrier at the Divergence of the Old and San Joaquin Rivers. Document 32 summarizes the results of the bubble barrier experiment that was conducted during the VAMP period in April-May 2009, before 22 the BiOp was issued. 23 are included in the record, see, e.g., NMFS AR at 58472, 73147, 24 73172, and it was also discussed among NMFS staff, see, e.g., 25 NMFS AR at 61049, 61059, 65222. 26 27 28 Conceptual studies of the bubble barrier However, Document 32, issued in September 2009, post-dates the BiOp. That Document 32 summarizes the results of other studies in the AR does not 37 1 justify its admission under any of the narrow exceptions, as it 2 could not have been considered by the decisionmaker prior to the 3 issuance of the BiOp. 4 Plaintiffs motion is DENIED as to Document 32. 5 6 4. 7 Federal Defendants have agreed to include in the record most 8 9 10 Stanislaus Plaintiffs Motion to Supplement. of the Documents requested by Stanislaus River Plaintiffs. Only seven (7) documents in Table E attached to Stanislaus River Plaintiffs motion to supplement remain in dispute. 11 12 13 14 15 16 B. San Luis Plaintiffs Motion to Augment With Documents Withheld Under Claim of Privilege. 1. Stanislaus Weir data for 04/05, 05/06, 07/08 (Table E Items 19, 21 and 22) and Rotary Screw Trap data 1993present (Table E Item 16) The Stanislaus River Weir data is collected from fishery 17 studies on the Stanislaus River. 18 data are included in the AR. 19 Screw Trap data included in the AR. 20 seek to include the remaining years of data in the AR. 21 Defendants refuse, arguing that the data was not created by the 22 23 24 25 Only select years of the weir Similar gaps exist in the Rotary Stanislaus River Plaintiffs Federal Bureau, the missing years cannot be found in USBR s files, and the missing data was not considered or relied upon by the agency. Doc. 227 at 7:23-8:5. 26 However, Federal Defendants considered certain years from 27 these data sets, which represent the only available studies of 28 certain species on the Stanislaus River, relevant enough to be 38 1 included in the AR. 2 other years is arguably a failure to consider a relevant factor 3 (i.e. a failure to consider a complete data set). 4 Federal Defendants failure to consider the The missing years of data, Items 16, 19, 21 and 22 are admissible for this 5 6 7 purpose. 2. 8 9 SJRGA Temperature Comments and Attached Data (Table E, Item 23). Item 23 relates to the Central Valley Regional Water Quality 10 Board s ( Regional Board ) consideration of Temperature Water 11 Quality Standards for the protection of anadromous fish in the 12 Merced, Stanislaus, Tuolumne, and San Joaquin Rivers. 13 Regional Board took comments from interested parties and 14 15 16 17 stakeholders. The Oakdale Irrigation District and South San Joaquin Irrigation District submitted comments as part of this process, as did others, including the California Department of Fish and 18 Game ( CDFG ). 19 not the comments submitted by Oakdale and South San Joaquin 20 Irrigation Districts, which included 90 pages of biological and 21 temperature modeling data. 22 before the decisionmaker and therefore should not be part of the 23 NMFS included CDFG s comments in the record, but NMFS insists that Item 23 was not record. 24 25 26 Plaintiffs argue that the information contained in Item 23 was publicly available and directly relates to the temperature 27 issues on the Stanislaus River. Doc. 260 at 5. However, neither 28 of these arguments suggests why this data should come in under 39 1 any of the recognized exceptions to the record review rule, if 2 NMFS may exercise its discretion not to consider the data, unless 3 expert testimony shows this was a violation of the best available 4 science requirement because the data was non-cumulative and 5 6 necessary. Plaintiffs request to supplement the record with Item 23 is 7 8 DENIED WITHOUT PREJUDICE. 9 3. 10 Stanislaus River Temperature Model - Table E, Item 14. The BiOp imposes significant new temperature requirements on 11 12 Stanislaus River operations. Plaintiffs seek to supplement the 13 AR with the CALFED San Joaquin River ( SJR Water Temperature 14 Model (Item 14 on Table E). 15 submit the Declaration of Avry Dotan, a hydrologist who 16 participated in the development of the CALFED SJR Water 17 Temperature Model. 18 19 20 21 The Stanislaus River Plaintiffs See Doc. 148 at ¶2. According to Mr. Dotan, the model was developed as part of a stakeholder-driven process to analyze the relationship between operational alternatives, water temperature regimes and fish mortality on the Stanislaus Id. at ¶3. 22 River. 23 and the United States Fish and Wildlife Service. 24 funded the development of a preliminary version of the model. 25 Id. 26 27 28 The stakeholder group included Reclamation The group The success of the preliminary model prompted CALFED to fund an expanded version of the model, which has since been peer reviewed. Id. at ¶4. The model, which is designed to provide 40 1 basin-wide evaluation of temperature responses to operational and 2 physical changes, has been used in several proceedings, including 3 instream/temperature studies for the Stanislaus River, the Friant 4 Restoration Projects; the Delta-Mendota Canal Recirculation 5 6 7 Project, Tuolumne River instream studies, and Merced River hydropower relicensing. Id. at ¶7. Mr. Dotan maintains that a 8 NOAA employee, Craig Anderson, contacted him in May of 2009 about 9 running the SJR Water Temperature Model in connection with the 10 preparation of the 2009 Salmonid BiOp, Mr. Dotan was never 11 retained to perform such analysis. 12 13 14 15 Id. at ¶8. NMFS apparently utilized a different model, but has not completely disclosed the nature of the model used or the location of its results. At a minimum, Plaintiffs request that Defendants 16 supplement the AR with the model employed and its results. 17 the extent that the modeling utilized is deficient, Plaintiffs 18 maintain that Mr. Dotan should be allowed to explain why the 19 model is deficient and why the Stanislaus River Temperature model 20 is the best available scientific evidence. 21 To Stanislaus River Plaintiffs request that Federal Defendants 22 23 24 disclose the nature of the model used to develop the BiOp and the location of its result is GRANTED. If, upon review of this 25 information, there is a basis in the record for Mr. Dotan to 26 opine that the model used does not represent the best available 27 science and that the Stanislaus River Water Temperature Model 28 41 1 does, such opinions will be considered for that limited purpose, 2 and, if legally appropriate, the data will be consdiered. 3 4 4. CALSIM II - Table E, Item 12. 5 Item 12 is the Corrected San Joaquin River CALSIM II 6 model. 7 Plaintiffs maintain that the older version contained coding and 8 assumption errors that affect how the model works during April 9 10 The BiOp used an older version of the CALSIM II model. and May, when any flow requirements imposed by the BiOp would interact with Vernalis flows set forth in applicable water rights 11 12 decisions and the Vernalis Adaptive Management Program ( VAMP ). 13 The Stanislaus River Plaintiffs request that the corrected SJR 14 CALSIM model be added to the record. 15 the Stanislaus River Plaintiffs offer the Declaration of Daniel B 16 Steiner, a civil engineer with experience in hydrologic modeling. 17 Mr. Steiner states that [a]fter the release of the June 2009 18 19 20 21 22 In support of this motion, BiOp, [h]e worked with [Reclamation] staff regarding [the] coding errors [in the older version of CALSIM II]. Doc. 150 at ¶7. Mr. Steiner understands that [Reclamation] has since corrected its model to address at least one of its errors. Id. 23 Mr. Steiner s declaration indicates that a corrected version 24 of the model was not available prior to the issuance of the BiOp, 25 nor do Plaintiffs suggest that anyone pointed out any errors in 26 27 28 the older CALSIM II model to Federal Defendants prior to the BiOp s issuance. 42 1 Plaintiffs motion to supplement the record with Item 12 is 2 DENIED WITHOUT PREJUDICE. 3 that this corrected model represents best available science 4 If Plaintiffs expert can demonstrate that was disregarded or given insufficient weight, such opinions 5 6 7 8 9 10 11 12 13 14 will be considered. C. San Luis Plaintiffs Motion to Augment the Record with Documents Withheld Under Claim of Privilege. 1. Documents 24 through 59. NMFS has agreed to disclosed Documents 24 through 59. documents shall be added to the administrative record. 2. Documents Over Which Federal Defendants Assert the Privilege. NMFS asserts the attorney client privilege to withhold 15 Documents 1-9 and 60-63. 16 the applicability of the privilege to each document. 17 These NMFS bears the burden of demonstrating In re Fischel, 557 F.2d 209, 212 (9th Cir. 1997). 18 19 20 a. Documents 1 through 9. Documents 1 through 9 are preliminary drafts of the BiOp, 21 which contain substantive edits to, and comments by Melanie 22 Rowland, an attorney in NOAA s Office of General Counsel. 23 24 25 26 27 28 NMFS asserts that the documents contain legal advice from Ms. Rowland on the legal issues raised by the BiOp. NMFS explains: Not all of Ms. Rowland's suggested edits were incorporated into the final biological opinion and for those edits that were, the challenged documents contain privileged legal advice regarding the legal desirability of those edits, which are inextricably 43 1 2 intertwined with the edits themselves. Doc. 227-3, McInnis Decl., ¶7. 3 Plaintiffs cite Greenpeace v. National Marine Fisheries 4 Serv., 198 F.R.D. 540, 542 (W.D. Wash. 2000), in which, after in 5 camera review, the agency was required to disclose several 6 7 8 documents over which the deliberative process privilege was asserted. Here, however, Federal Defendants rely on the 9 attorney-client privilege, arguing that it is not possible to 10 disclose the information without revealing the attorney-client 11 privileged information. 12 insofar as it stands for the undisputed proposition that in 13 14 15 16 Greenpeace, therefore, is only relevant camera review is a useful tool for resolving whether the assertion of a privilege is valid. It is impossible to determine the propriety of Federal 17 Defendants assertions of privilege without examining these 18 documents, although the facial explanations appear valid. 19 abundance of caution, Federal Defendants shall submit these four 20 documents under seal for the court s in camera review. In an 21 22 23 b. Documents 60-63. Federal Defendants also assert the attorney client privilege 24 with respect to Documents 60-62, and the work product privilege 25 for Documents 60-63, all of which are described in the NMFS 26 Record Index as Cliff Notes from various internal Operations 27 28 Criteria and Plan ( OCAP ) meetings. 44 1 As to the attorney-client privilege, federal Defendants 2 claim that these Documents contain internal discussions in which 3 legal advice from NOAA attorneys (Christopher Keifer; Melanie 4 Rowland) is repeated and discussed among non-attorneys for the 5 6 7 specific purposes of litigation strategy and compliance with the court s order in PCFFA v. Gutierrez. Plaintiffs object that NMFS 8 does not identify any specific information about the documents, 9 nor do they explain how non-disclosure of these documents would 10 serve the purpose of the attorney-client privilege: to promote 11 the full and frank communication between attorneys and their 12 13 14 15 16 Upjohn Co. v United States, 449 U.S. 383, 389 (1981). clients. Plaintiffs request that the assertion of the privilege be rejected or that the documents be submitted for in camera review. Federal Defendants basis for assertion of the work product 17 privilege is the same as for the attorney client privilege. 18 However, San Luis Plaintiffs correctly point out that the work 19 product privilege is a qualified one, which may be overcome if 20 the requesting party can demonstrate that it has substantial 21 need for the materials to prepare its case and cannot, without 22 23 24 undue hardship, obtain their substantial equivalent by other means. Fed. R. Civ. P. 26(b)(3)(A)(ii). The privilege is held 25 by the attorney. 26 Plaintiffs claim they have a substantial need for these documents 27 because they pertain to the development of the BiOp, which 28 Without knowledge of their content, San Luis 45 1 addresses the OCAP s effects on listed species. 2 Again, although the facial explanations appear valid, in an 3 abundance of caution, Federal Defendants shall submit these four 4 documents under seal for the court s in camera review. 5 6 7 III. CONCLUSION 8 Consistent with the reasoning set forth above: 9 (1) As to the motions to supplement: 10 11 (a) San Luis Plaintiffs request to supplement the record with 12 13 (i) Documents 1-14 on the ground that they were 14 attached to comment letters is DENIED; 15 (ii) Document 21, a compilation of declarations 16 referenced in the BiOp, is GRANTED; 17 (iii) Documents 1, 4, 9, and 39-41 is DENIED 18 WITHOUT PREJUDICE; 19 20 21 22 (iv) Documents 2 and 24-31 is DENIED WITHOUT PREJUDICE; (v) Document 13 is DENIED; 23 (vi) Documents 34 and 35 is GRANTED for the 24 purpose of demonstrating that Federal Defendants 25 failed to consider a relevant factor, namely the 26 impact of hatchery fish on salmonid fitness; 27 28 46 1 (vii) Documents 10 and 11 is GRANTED for the 2 purpose of demonstrating that Federal Defendants 3 failed to consider a relevant factor, the 4 purported primacy of the impact of ocean 5 6 7 conditions on salmonid survival; (viii) Document 23 is DENIED; 8 (ix) Documents 5 and 6 is DENIED; 9 (x) Document 36 is DENIED; 10 (xi) Documents 3, 7, 8, 14, 37, and 38, as 11 representing the best available science, is DENIED 12 13 14 15 WITHOUT PREJUDICE; (xii) Documents 14 is GRANTED for the purpose of demonstrating that Federal Defendants failed to 16 consider a relevant factor, namely the past or 17 current existence of a different steelhead run in 18 the action area; 19 (xiii) Documents 3, 7, 8, 37 and 38 is DENIED as 20 to the relevant factors and explanation of complex 21 scientific information exceptions; and 22 23 24 (ixx) Document 32 is DENIED; (b) Stanislaus River Plaintiffs motion to supplement 25 is GRANTED as to Items 16, 19, 21 and 22 and DENIED 26 WITHOUT PREJUDICE as to Items 12 and 23. 27 28 47 1 (c) Stanislaus River Plaintiffs request that Federal 2 Defendants disclose the nature of the model used to 3 develop the BiOp and the location of its result is 4 GRANTED. 5 6 (2) As to the motion to augment, Federal Defendants shall (a) disclose documents 24 through 59; and 7 8 (b) lodge Documents 1-9 and 60-63 under seal for in 9 camera review within five (5) days of service of this 10 order. 11 Defendants may elect to lodge any or all of these 12 13 14 15 Given the length of the BiOp, Federal documents on CD in lieu of hard copies. Plaintiffs shall submit a form of order consistent with this memorandum decision within five (5) days of electronic service. 16 17 SO ORDERED 18 Dated: 19 20 June 21, 2010 /s/ Oliver W. Wanger Oliver W. Wanger United States District Judge 21 22 23 24 25 26 27 28 48

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