-DLB San Luis & Delta-Mendota Water Authority et al v. Locke et al, No. 1:2009cv01053 - Document 655 (E.D. Cal. 2011)

Court Description: Final Judgment (Including Schedule for Remand), signed by District Judge Lawrence J. O'Neill on 12/12/11. CASE CLOSED. (Gonzalez, R)
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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 10 SALMONID CONSOLIDATED CASES 1:09-CV-01053 LJO DLB 12 SAN LUIS & DELTA-MENDOTA WATER AUTHORITY, et al. v. LOCKE, et al. FINAL JUDGMENT (INCLUDING SCHEDULE FOR REMAND) 13 STOCKTON EAST WATER DISTRICT, et al. v. NOAA, et al. 11 14 15 STATE WATER CONTRACTORS v. LOCKE, et al. 16 KERN COUNTY WATER AGENCY, et al. v. UNITED STATES DEPARTMENT OF COMMERCE, et al. 17 18 19 20 21 OAKDALE IRRIGATION DISTRICT, et al. v. UNITED STATES DEPARTMENT OF COMMERCE, et al. METROPOLITAN WATER DISTRICT OF CALIFORNIA v. NATIONAL MARINE FISHERIES SERVICE, et al. 22 As all claims in these consolidated cases have been decided, Judgment is entered in 23 24 25 26 27 accordance with the following Memoranda and Orders: (1) The March 5, 2010 Memorandum Decision Re Cross-Motions For Summary Judgment On NEPA Issues (Doc. 266) and March 17, 2010 Order Granting In Part Motion For Summary Judgment On NEPA Issues (Doc. 288), granting in part the motion for summary judgment of Plaintiffs San Luis & Delta-Mendota Water Authority and Westlands Water District (“San Luis 28 1 1 Plaintiffs”), State Water Contractors (“SWC”), Metropolitan Water District of Southern 2 California (“MWD”), Kern County Water Agency and Coalition for a Sustainable Delta 3 (collectively “KCWA”), and Stockton East Water District, Oakdale Irrigation District and South 4 San Joaquin Irrigation District (“Stanislaus River Plaintiffs”) (collectively, “Plaintiffs”) on their 5 claims against the United States Bureau of Reclamation (“Reclamation”) and Secretary of the 6 Interior, Kenneth Lee Salazar, that Reclamation violated the National Environmental Policy Act 7 (“NEPA”) by failing to perform any NEPA analysis prior to provisionally adopting and 8 implementing the June 4, 2009, Endangered Species Act (“ESA”) biological opinion issued by 9 the National Marine Fisheries Service (“NMFS”) regarding the effects of the proposed operations 10 of the federal Central Valley Project (“CVP”) and the State Water Project (“SWP”) on certain 11 salmonid and other species and their critical habitat (the “2009 Salmonid BiOp”); and (2) The September 20, 2011 Memorandum Decision Re Cross Motions For Summary 12 13 Judgment (Doc. 633) and September 29, 2011 Order Re Cross-Motions For Summary Judgment 14 (Doc. 643) on the motions and cross-motions for summary judgment brought by: (a) San Luis 15 Plaintiffs, SWC, MWD, KCWA, and Stanislaus River Plaintiffs; (b) plaintiff-in-intervention the 16 California Department of Water Resources (“DWR”); (c) Federal Defendants, the United States 17 18 19 20 21 22 Department of Commerce, the National Oceanic and Atmospheric Administration, NMFS, the United States Department of the Interior, and Reclamation; and (d) Defendant-Intervenors California Trout, Friends Of The River, Natural Resources Defense Council, Northern California Council of the Federation of Fly Fishers, Pacific Coast Federation of Fishermen’s Associations/Institute for Fisheries Resources, Sacramento River Preservation Trust, San Francisco Baykeeper, The Bay Institute, and the Winnemem Wintu Tribe. IT IS FURTHER ORDERED that: 23 (A) 24 NMFS’s 2009 Salmonid BiOp and Reasonable and Prudent Alternative (“RPA”) and Reclamation’s December 2009 Provisional Acceptance of the RPA are REMANDED 25 WITHOUT VACATUR, with the following instructions: 26 // 27 // 28 2 1) NMFS shall transmit to Reclamation by October 1, 2014,1 a draft salmonid 1 2 biological opinion consistent with the requirements of law. 3 2) Six months after transmittal of the draft biological opinion, Reclamation shall 4 issue a draft Environmental Impact Statement (“EIS”), or such other 5 documentation as required. 3) Reclamation shall issue a final EIS, or such other documentation as required, by 6 February 1, 2016. 7 4) NMFS shall complete ESA consultation and issue its final salmonid biological 8 opinion by February 1, 2016. 9 5) Reclamation shall issue its Record of Decision by April 29, 2016.2 10 11 (B) The parties shall meet and confer regarding any request by Plaintiffs, or any of 12 them, and/or DWR for recovery of attorneys’ fees and/or costs. Any motion for recovery of 13 attorneys’ fees and/or costs shall be filed on or before March 1, 2012. 14 SO ORDERED Dated: December 12, 2011 /s/ Lawrence J. O’Neill United States District Judge 15 16 17 18 1 19 20 21 22 23 24 25 26 27 28 The Court has accelerated the government’s proposed timetable by approximately six months by advancing the due date for the draft salmonid biological opinion (“draft BiOp”). Although the Court is sensitive to the government’s resource concerns and its desire to develop and apply an appropriate life cycle model, after considering all of the relevant pleadings, the Court concludes that a two year period for development of the draft BiOp, starting from the September 29, 2011 issuance of the Order Re Cross-Motions for Summary Judgment and ending on October 1, 2014, is sufficient for this purpose. The Court believes the government’s proposed schedule, which indicates the life-cycle model will not be available until the Spring of 2014, see Doc. 637-2 (table detailing timing of steps in draft BiOp development), is overly conservative and cannot justify additional delays in production of a draft BiOp, particularly in light of the fact that further refinement of the life cycle model may take place, if necessary, after the draft BiOp issues. The Court rejects Plaintiffs’ suggestion that an appropriate life cycle model is currently available for immediate implementation, as the balance of the evidence presented in these consolidated cases suggests otherwise. See Doc. 633 at 46-63; see also Declaration of Maria Rea, Doc. 637-1, at ¶ 8 & Doc. 6373 (Rose et al. (2011)). Plaintiffs’ request that the remand schedule in this case mirror that in the Delta Smelt Consolidated Cases is likewise unreasonable. Not only is the scope of the Salmonid BiOp considerably broader than the Smelt BiOp, the Salmonid cross motions for summary judgment were decided more than nine months after those in the Delta Smelt Consolidated Cases. 2 An April 29, 2016 due date for the issuance of Reclamation’s Record of Decision (“ROD”), as opposed to October 31, 2016 (the last day of the water year), is more conducive to the orderly administration of justice should judicial review of the final salmonid BiOp, EIS, and/or ROD be necessary. 3