-GSA San Joaquin River Group Authority v. National Marine Fisheries Service et al, No. 1:2011cv00725 - Document 45 (E.D. Cal. 2011)

Court Description: MEMORANDUM DECISION RE Central Delta Water Agency, Et al.'s 27 Motion to Intervene signed by Judge Oliver W. Wanger on 7/5/2011. (Proposed Lanuage Describing Limits for issues or Disagreements described in a Joint Statement Deadline: 7/8/2011; Proposed Order Consistent with Memorandum Decision Deadline: 7/8/2011) (Figueroa, O)

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1 2 UNITED STATES DISTRICT COURT 3 FOR THE EASTERN DISTRICT OF CALIFORNIA 4 5 6 SAN JOAQUIN RIVER GROUP AUTHORITY, Plaintiff, 7 8 9 v. Defendants. 11 13 14 15 MEMORANDUM DECISION RE CENTRAL DELTA WATER AGENCY, ET AL. S MOTION TO INTERVENE (Doc. 27) NATIONAL MARINE FISHERIES SERVICE, 10 12 1:11-cv-00725 OWW GSA I. INTRODUCTION/BACKGROUND This suit arises from the United States Pacific Fisheries Management Council s ( PFMC ) April 13, 2011 adoption of commercial troll and recreational fishing management measures for 16 the waters south of Cape Falcon, permitting commercial and 17 recreational fishing for Sacramento River fall-run Chinook Salmon 18 ( SRFC ) for the 2011 fishing season ( 2011 management 19 measures ), and the National Marine Fisheries Service s ( NMFS ) 20 21 May 4, 2011 approval of the PFMCs recommended 2011 fishing regulations. Doc. 1. 22 23 24 Central Delta Water Agency, South Delta Water Agency, Honker Cut Marine, Inc., Rudy Mussi, and Roubert Souza (collectively 25 Applicants ) move for leave to intervene in this case as of 26 right pursuant to Federal Rule of Civil Procedure 24(a), or in 27 the alternative to permissively intervene under Rule 24(b). 28 1 Doc. 1 19, filed June 10, 2010. 2 the motion, provided the intervention will not affect the page 3 limits available to Federal Defendants for any briefing in this 4 matter. Doc. 29. Federal Defendants take no position on Plaintiff opposes. Doc. 30. Applicants 5 6 replied. Doc. 43. 7 8 II. BACKGROUND A. 9 10 11 Claims in this Case. Plaintiff, a coalition of irrigation districts holding water rights in the San Joaquin River or one of its tributaries, assert that Federal Defendants adoption of the 2011 management measures 12 13 violates the Administrative Procedure Act ( APA ), Magnuson- 14 Stevens Fishery Conservation and Management Act ( Magnuson Act ), 15 and National Environmental Policy Act ( NEPA ), by among other 16 things approving high levels of Sacramento River Fall Run 17 Chinook salmon harvest, even though overfishing concerns 18 allegedly continue relative to the abundance of the species. Id. 19 20 B. The Applicants. 21 1. 22 The Central Delta Water Agency ( Central Delta ) is a 23 political subdivision of the State of California, created by the 24 California Legislature in 1973. 25 Central Delta s territory includes approximately 125,000 acres of 26 Central Delta Water Agency. Mussi Decl., Doc. 27-5, ¶ 18. land and associated waterways located entirely within the 27 28 boundaries of the Delta, as defined by Section 12220 of the 2 1 California Water Code, in the County of San Joaquin. 2 Central Delta s lands are devoted primarily to agriculture, its 3 lands have other uses, including for commercial, navigation, 4 Although transportation, residential, recreational, and habitat purposes. 5 6 7 Id. ¶ 21. A Central Delta Director and Co-Plaintiff, Rudy Mussi, 8 explains that that Central Delta has a long-standing interest in 9 Delta water quality because [g]ood quality water is necessary 10 for all of the uses of the waters within the Delta including 11 farming, recreation, and wildlife use. Mussi Decl., 27-5, ¶ 28. 12 13 2. 14 Like Central Delta, South Delta is a political subdivision 15 of the State of California, created by the Legislature in 1973. 16 Robinson Decl., Doc. 27-3, ¶ 19. 17 approximately 148,000 acres of land and associated waterways 18 19 20 21 South Delta Water Agency. South Delta includes located entirely within the boundaries of the Delta, in the County of San Joaquin. Id. South Delta s lands are also principally devoted to agriculture, but other uses include 22 commercial, navigation, transportation, residential, 23 recreational, and habitat purposes. 24 empowered to undertake any lawful act necessary in order that a 25 sufficient in-channel water supply of suitable quality may be 26 27 28 South Delta is also available for any present or future beneficial use or uses of the lands within the agency. Cal. Water Code App. §§ 116-4.1, 1163 1 4.2(b). 2 3 4 3. Honker Cut Marine, Inc. Honker Cut Marine, Inc. ( Honker Cut ), is a California 5 Corporation, owned and operated since 1986 as a marine business 6 on King Island in San Joaquin County, on Honker Cut (a Delta 7 waterway). 8 the real property on which it operates, which is situated on 9 10 Karnofel Decl., Doc. 27-4, ¶¶ 3-4. Honker Cut. Id. ¶ 3. Honker Cut owns The business sells, services, stores, maintains, and launches boats used in the Delta for, among other 11 12 things, recreational fishing. Id. ¶¶ 4, 7. 13 4. 14 Robert Souza, Sr. is an avid angler residing in Stockton, 15 16 17 18 Robert Souza, Sr. California. Souza Decl., Doc. 27-6, ¶¶ 1, 4-5. visits the Delta to fish for striped bass. He regularly Id. ¶ 6. Mr. Souza is keenly interested in the conservation of striped bass in the 19 Delta, for educational, moral, spiritual, aesthetic, and 20 recreational reasons, and asserts the belief that it is 21 unethical to kill salmon, steelhead, and striped bass in the 22 Delta. 23 24 Id. ¶¶ 6. Mr. Souza characterizes his interest in this litigation as follows: 25 26 27 28 The plaintiff s lawsuit claims that its member agencies are injured by the failure to comply with Magnuson-Stevens because their water rights, water supply and water supply facilities and all of its electrical generation, recreation, and flood control facilities depend on or are located on the San Joaquin 4 1 2 3 4 5 6 7 8 9 10 Id. ¶ 17. River and its tributaries, which is occupied by Sacramento River fall-run Chinook salmon, and [a]s holders of the major non-federal and non-State water rights in the San Joaquin River basin, SJRGA member agencies are responsible for abundance of Sacramento River fall-run Chinook salmon. Complaint for Declaratory Relief and Injunctive Relief, para. 16-17. SJRGA s member agencies claim water rights upstream of the Delta, and their use and exercise of their alleged rights impacts Delta water quality. If SJRGA s member agencies in fact claim that they have a responsibility for Sacramento River fall-run Chinook salmon and that their water use operations are influenced by the abundance of such salmon, than [sic] Delta water quality is also influenced by the abundance of such salmon, and I personally am interested in SRFC abundance. 11 5. Rudy Mussi. 12 Rudy Mussi is a director of Central Delta Water Agency and a 13 farmer within Central Delta. 14 entire life in the Delta and depends on the San Joaquin River for 15 water used on his farm. Mussi Decl. ¶1. Id. ¶6. He has lived his He and his family also use the 16 17 18 Delta for recreational purposes, including fishing. Id. at ¶7. Mr. Mussi has a long-standing and deeply-held personal interest 19 in the conservation of the Delta and its species. 20 Id. at ¶¶ 8- 10. 21 22 23 24 25 26 As a director of Central Delta for the past 19 years, he has spent countless hours of his own time working on a multitude of issues relating to the health of the Delta ecosystem, and professes to experience great happiness with the understanding I am working toward a healthy Delta that will support all fish and 27 wildlife species, including salmon, steelhead, striped bass, 28 black bass, and delta smelt, as well as birds and other 5 Id. ¶¶ 11-12. 1 wildlife. 2 precipitous declines in all fish populations in past decades 3 indicate the overall poor health of the Delta due to the effects 4 Mr. Mussi states that [t]he Id. at that the state and federal pumps have on the ecosystem. 5 6 ¶ 16. 7 III. INTERVENTION AS OF RIGHT. 8 9 Applicants move to intervene as of right or, in the alternative, to permissively intervene. 10 11 A. Intervention as of Right. 12 1. Legal Standard. 13 Intervention is governed by Federal Rule of Civil Procedure 14 24. 15 applicant must claim an interest, the protection of which may, as 16 17 18 19 To intervene as a matter of right under Rule 24(a)(2), an a practical matter, be impaired or impeded if the lawsuit proceeds without the applicant. Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 1493 (9th Cir. 1993). The Ninth 20 Circuit applies Rule 24(a) liberally, in favor of intervention, 21 and requires a district court to take all well-pleaded, non- 22 conclusory allegations in the motion as true absent sham, 23 frivolity or other objections. 24 Diversity v. Berg, 268 F.3d 810, 820 (9th Cir. 2001). 25 S.W. Ctr. for Biological A four- part test is used to evaluate a motion for intervention of right: 26 27 28 (1) the motion must be timely; (2) the applicant must claim a "significantly protectable" interest relating to the property or 6 1 transaction which is the subject of the action; 2 (3) the applicant must be so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest; and 3 4 (4) the applicant's interest must be inadequately represented by the parties to the action. 5 6 Forest Conservation Council, 66 F.3d at 1493. 7 2. Timeliness. 8 In assessing timeliness, courts in the Ninth Circuit must 9 consider: (1) the current stage of the proceedings; (2) whether 10 the existing parties would be prejudiced; and (3) the reason for 11 any delay in moving to intervene. League of United Latin Am. 12 13 14 Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997). Applicants moved to intervene on June 10, 2010, Doc. 27, after 15 providing notice of their intent to do so no later than June 6, 16 2010, see Doc. 24, which is approximately 30 days after the 17 filing of the Complaint. 18 when the motion was filed before the district court made any 19 20 21 22 substantive rulings. Existing parties are not prejudiced N.W. Forest Resource Council v. Glickman, 82 F.3d 825, 837 (9th Cir. 1996). Here, no substantive rulings have been made in this case, no scheduling conference has been 23 held, and no discovery has commenced. 24 taken in the case was the setting of a briefing and hearing 25 schedule for the parties cross dispositive motions. 26 27 28 The only judicial action Plaintiff nonetheless contends that the intervention is untimely because of the expedited briefing schedule on cross7 1 motions for summary judgment, which is not atypical in Magnuson 2 Act cases. 3 v. Daley, 995 F. Supp. 1411, 1424-25 (M.D. Fla. 1998)1, which 4 Plaintiff cites Southern Offshore Fishing Association denied intervention by a coalition of environmental 5 6 7 organizations. The complaint in that case was filed May 2, 1997; the schedule required completion of briefing on cross-motions for 8 summary judgment by early September 1997; and the administrative 9 record was filed June 16, 1997. 10 July 16, 1997, more than two months after the complaint was filed 11 and less than two months before briefing was to be completed, was 12 13 14 15 16 The intervention petition, filed untimely in light of the case schedule. Id. Plaintiff fails to mention, however, that the district court nonetheless permitted the proposed intervenors to file amici curiae briefs on any issue presented by the parties. Id. The situation here is distinguishable. 17 The petition for 18 intervention was filed slightly more than one month after the 19 filing of the initial complaint, and more than one month before 20 briefing on cross motions was set to commence on July 22, 2011. 21 That briefing will span a period of almost two months, with the 22 23 24 final reply brief due September 16, 2011. The motion to intervene is timely. 25 3. 26 Significant Protectable Interests. To demonstrate a significantly protectable interest, a 27 1 28 Plaintiff s brief cites this as a 9th Cir. 1998 when it is actually a M.D. Fla. 1998 case. 8 1 prospective intervenor must establish that (1) the interest 2 asserted is protectable under some law, and (2) there is a 3 relationship between the legally protected interest and the 4 claims at issue. Id. Here, among other remedies, Plaintiff 5 6 7 seeks to enjoin SRFC commercial harvest, because, [i]f significant ocean harvest continues, it will blunt SRFC 8 preservation and restoration efforts, including those undertaken 9 by [Plaintiff]. Doc. 1 ¶¶ 188-91. 10 a. 11 Central Delta and South Delta. Plaintiff objects that Applicants Central Delta and South 12 13 Delta lack significant protectable interests because their 14 interests are in the Delta, not the ocean. 15 Applicants assertion of a protectable interest is convoluted. 16 Rudi Mussi explains Central Delta s claim of interest in this 17 case: 18 19 20 21 22 23 24 25 26 27 28 Doc. 30 at 3-4. The plaintiff s lawsuit claims that its member agencies are injured by the failure to comply with Magnuson-Stevens because their water rights, water supply and water supply facilities and all of its electrical generation, recreation, and flood control facilities depend on or are located on the San Joaquin River and its tributaries, which is occupied by Sacramento River fall-run Chinook salmon and that [a]s holders of the major non-federal and non-State water rights in the San Joaquin River basin, SJRGA member agencies are responsible for abundance of Sacramento River fall-run Chinook salmon. Complaint for Declaratory Relief and Injunctive Relief, para. 16-17. SJRGA s member agencies claim water rights upstream of the Delta, and their use and exercise of their alleged rights impact Delta inflow and water quality. To the extent SJRGA s member agencies in fact claim that they have a responsibility for Sacramento River fall-run 9 1 Chinook salmon and that their water use operations are influenced by the abundance of such salmon, the Delta inflow and water quality is also influenced by the abundance of such salmon. 2 3 4 Id. at ¶ 29. 5 to the management of SRFC in the ocean environment that could 6 result from this lawsuit will not only affect the abundance of 7 salmon but may also influence freshwater management measures to 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Central Delta appears to suggest that any changes benefit salmon, which in turn will affect water quality in the Delta. Plaintiff argues that these asserted interests are not related to this litigation: The water quality and water supply interests raised by the South Delta [] and Central Delta [] do not depend on whether the 2011 management measures are sustained. (Doc. 27-1.) While the Applicants state that the fish themselves are dependent on the same water supply and water of sufficient quality to sustain them in the Delta, they do not explain how the water supply or water quality for lands within their respective jurisdictions would be harmed if the 2011 management measures were not sustained. Regardless of whether the fish depend on the same water supply and water quality, SDWA and CDWA would only have an interest in the disposition of the 2011 management measures if their water supply and water quality depended on the abundance of Fall Chinook. Since this is not stated in the Motion, they do not state an interest relating to the present litigation. Doc. 30 at 4 (emphasis added). Applicants respond by pointing out that Plaintiff has alleged a connection between the 2011 management measures and freshwater operations. The Complaint alleges that Section 3406(b)(1) of the Central Valley Project Improvement Act 10 1 ( CVPIA ) (Public Law 102-575) directs the Secretary of the 2 Interior to develop and implement a program that makes all 3 reasonable efforts to at least double natural production of 4 anadromous fish in California's Central Valley streams on a long- 5 6 7 term, sustainable basis. species. Doc. 1 ¶ 173. SRFC are such a In addition, water quality standards imposed by the 8 California State Water Resources Control Board ( SWRCB ) include 9 a narrative salmon doubling objective, which requires that 10 water quality conditions shall be maintained, together with other 11 measures in the watershed, sufficient to maintain a doubling of 12 13 14 15 natural production of Chinook salmon from the average production of 1967-1991, consistent with the provisions of State and federal law. Id. ¶ 174. The SWRCB has also imposed Sacramento and San 16 Joaquin River flow objectives to provide attraction and 17 transport flows and suitable habitat for various life stages of 18 aquatic organisms, including Delta smelt and Chinook salmon. 19 ¶ 15. 20 harvest may require additional actions to double the natural 21 22 23 Id. The Complaint inferentially alleges that the increased production of salmon than would have otherwise been required.... Id. ¶ 177.2 Such actions may impact flows in the Delta, which 24 2 25 26 27 28 Applicants also argue that because Applicants have claims to the same waters as do SJRGA member agencies, Applicants interests may be affected by determinations of SJRGA member agency rights. Doc. 43 at 4. But, Applicants fail to explain what rights of Plaintiff s are at issue in this case. That Plaintiff s members are holders of water rights in the San Joaquin basin is undisputed. 11 1 has the potential to impact proposed intervenors interests. 2 3 4 Central Delta and South Delta have established that their legally protectable interests are related to the claims in this case. 5 6 7 8 9 10 b. Honker Cut. Honker Cut s claimed interest is in the recreational value of the SRFC fishery. Plaintiff argues that because Salmon fishing in the San Joaquin River has been prohibited for many years, is not permitted by the 2011 management measures, and 11 12 would not resume even if the 2011 management measures are 13 sustained, Honker Cut Marine has no legitimate interest in salmon 14 fishing in the San Joaquin River and the Delta. 15 However, Applicants point out that fishing for salmon is 16 permitted in the lower Sacramento River. 17 claims in this case relate to SRFC abundance. Doc. 30 at 5. Doc. 43 at 7. The 18 19 20 c. Mr. Souza. Plaintiff complains that Applicants have not articulated any 21 interest Mr. Souza has in the present litigation. 22 points out that although Mr. Souza fly fishes, he does not fish 23 for Fall Chinook. 24 Plaintiff But, Mr. Souza has articulated an aesthetic interest in SRFC abundance and the fish themselves. Souza Decl., 25 26 27 28 Doc. 27-6 at ¶ 5. This is a protected interest. See Summers v. Earth Island Inst., 129 S. Ct. 1142, 1149 (2009) (acknowledging 12 1 aesthetic interests as sufficient for purposes of standing in 2 environmental cases). 3 abundance and therefore to Mr. Souza s aesthetic interest in that 4 The claims in this case relate to SRFC species. 5 6 7 8 9 10 d. Mr. Mussi Plaintiff also objects that Mr. Mussi has no protectable interest in this case. Like Mr. Souza, he holds an aesthetic interest in SRFC abundance. He also shares Central Delta and South Delta s interest in water quality, as he uses Delta water 11 12 13 14 15 16 17 18 for his farming operations. These are protectable interests related to the claims in this case. 4. Impairment of Interests. The next inquiry is whether disposition of this action may, as a practical matter, impair or impede Applicants abilities to protect their interests. This requirement demands only a showing 19 that the applicant would be substantially affected in a 20 practical sense by the determination made in an action. 21 Ctr., 268 F.3d at 822. 22 23 24 S.W. To the extent that Applicants are interested purely in SRFC abundance for either commercial or aesthetic reasons, it is unclear why these interests do not completely overlap with those 25 26 27 28 of the Plaintiff, SJRGA. The Complaint alleges that the 2011 management measures allow for too much salmon harvesting and would result in too little salmon abundance and continued 13 1 overfishing. 2 interest will be impaired in any practical sense by this lawsuit. 3 4 Applicants have failed to demonstrate how this Those Applicants with concerns about water quality, namely Central Delta, South Delta, and Mr. Mussi, hold interests that 5 6 7 may, at least according to the allegations of the Complaint, be impaired in a practical sense by a determination in favor of 8 Plaintiff. 9 increased harvest may require additional actions to double the 10 natural production of salmon than would have otherwise been 11 required.... 12 13 14 15 As discussed above, the Complaint alleges that the Id. ¶ 177. Although the extent and nature of any such additional actions is unclear, such actions may benefit Applicants by enhancing water quality through the commitment of additional Project water for fish restoration. Conversely, the 16 absence of such additional actions to double the natural 17 production of salmon would harm Applicants. 18 interests in preserving and enhancing Delta water quality may be 19 impaired by this litigation. Applicants 20 21 5. 22 The remaining issue is whether Applicants interests are 23 Existing Parties Ability to Represent Applicants Interests. adequately protected by other defendants or defendant- 24 25 26 27 28 intervenors. In assessing the adequacy of representation, the Ninth Circuit looks at three factors: (1) whether the existing parties will undoubtedly make all of the applicant s arguments; 14 1 (2) whether the existing parties are capable of and willing to make the applicant s arguments; and 2 (3) whether the applicant offers a necessary element to the proceedings that otherwise would be neglected. 3 4 Id. at 823. 5 is satisfied if the applicant shows that representation of its 6 interests may be inadequate....[T]he burden of making this 7 [T]he requirement of inadequacy of representation showing is minimal. Sagebrush Rebellion Inc. v. Watt, 713 F.2d 8 9 10 525, 528 (9th Cir. 1983). It is well-settled precedent in this circuit that [w]here 11 an applicant for intervention and an existing party have the same 12 ultimate objective, a presumption of adequacy of representation 13 arises. 14 see also Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 15 16 17 18 2003). League of United Latin Am. Citizens, 131 F.3d at 1305; This presumption is triggered here with respect to Applicants interest in SRFC abundance. The presumption is rebuttable upon a showing that the applicant and the existing parties do not have sufficiently congruent interests. 20 Ctr., 268 F.3d at 823. 21 S.W. 19 evidence. 22 23 24 Applicants have provided no such As to Applicants interest in water quality in the Delta, no existing party has a sufficiently congruent interest. However, the extent to which this interest will require separate briefing 25 26 27 28 in this litigation is minimal at best. This necessitates the strictest of limits on Applicants participation in the lawsuit. 15 1 B. 2 Permissive Intervention. With respect to Applicants interest in SRFC abundance, for 3 which intervention of right is not appropriate, Applicants 4 alternatively request permissive intervention pursuant to Rule 5 24(b)(2), which requires: 6 (1) A timely application; 7 (2) A claim or defense sharing common questions of law or 8 9 fact with the main action; 10 (3) A lack of undue delay or prejudice to the parties if 11 intervention is allowed. 12 See Fed. R. Civ. P. 24(b)(2). 13 14 15 16 17 It has already been determined that Applicants motion is timely, and their concern for SRFC abundance overlaps directly with the main action. However, Applicants have not demonstrated how their interest in SRFC abundance is different from that of 18 Plaintiff, who has brought this lawsuit to stop ocean harvest of 19 SRFC. 20 they can offer no new perspectives will prejudice the existing 21 parties under the circumstances, where briefing has been 22 expedited. 23 Permitting Applicants to intervene on an issue on which Applicants are not entitled to permissively intervene on this issue. 24 25 IV. CONCLUSION 26 Applicants motion to intervene as a matter of right is 27 DENIED as to those Applicants whose sole interest is in SRFC 28 16 1 abundance, as is their alternative request for permissive 2 intervention on this issue. 3 Applicants seeking to protect their interest in Delta water 4 The motion is GRANTED as to those quality. 5 6 7 Applicants intervention is conditioned upon strictly limiting their participation solely to issues about which they 8 can provide unique information and/or arguments. 9 clearly delineate the issues related to their water quality 10 interest on which they intend to submit briefing. 11 shall meet and confer in an effort to agree upon proposed 12 13 14 15 Applicants must The parties language describing limits for these issues, as well as related page limits for any such briefing by intervenors, oppositions, and replies. Proposed language shall be submitted on or before 16 July 8, 2011 at 12:00 noon. 17 limiting language, any disagreements shall be described in a 18 joint statement to be filed with the court by the same deadline. 19 20 21 If the parties cannot agree on such Applicant shall also submit a proposed form of order consistent with this memorandum decision by July 8, 2011 at noon. The issue and page limitation language will be incorporated in 22 23 24 25 the final order. SO ORDERED Dated: July 5, 2011 /s/ Oliver W. Wanger United States District Judge 26 27 28 17

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