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					1 M. REED HOPPER, No. 131291 E-mail: mrh@pacificlegal.org 2 DAMIEN M. SCHIFF, No. 235101 E-mail: dms@pacificlegal.org 3 BRANDON M. MIDDLETON, No. 255699 E-mail: bmm@pacificlegal.org 4 Pacific Legal Foundation 3900 Lennane Drive, Suite 200 5 Sacramento, California 95834 Telephone: (916) 419-7111 6 Facsimile: (916) 419-7747 7 Attorneys for Plaintiffs 8 9 10
3900 Lennane Drive, Suite 200 Sacramento, CA 95834 (916) 419-7111 FAX (916) 419-7747

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

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11 12

13 STEWART & JASPER ORCHARDS; ARROYO FARMS, LLC; and KING PISTACHIO GROVE, 14 Plaintiffs, 15 v. 16 UNITED STATES FISH AND WILDLIFE SERVICE; 17 UNITED STATES DEPARTMENT OF THE INTERIOR; KEN SALAZAR, Secretary of the 18 Interior; ROWAN W. GOULD, Acting Director of the Service; and REN LOHOEFENER, Regional Director 19 of the Service’s Pacific Southwest Region,

) ) ) ) ) ) ) ) ) ) ) ) ) ) 20 Defendants. ) ____________________________________________ ) 21 ) UNITED STATES BUREAU OF RECLAMATION ) 22 and CALIFORNIA DEPARTMENT OF WATER ) RESOURCES, ) 23 ) Real Parties in Interest. ) 24 ) 25 26 27 28
Complaint for Declaratory & Injunctive Relief

No. _______________________ COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 2 1.

INTRODUCTION Through the adoption of an invalid Biological Opinion (BiOp) under the

3 Endangered Species Act, the United States Fish and Wildlife Service (Service), the United States 4 Department of the Interior (Interior), Ken Salazar, Secretary of the Interior, Rowan W. Gould, 5 Acting Director of the Service, and Ren Lohoefener, Regional Director of the Service’s Pacific 6 Southwest Region (collectively, “Defendants”), have unlawfully restricted the amount of water that 7 flows from the Sacramento-San Joaquin Delta southward. In particular, Defendants have misused 8 the Endangered Species Act and have arbitrarily imposed restrictions on federal Central Valley 9 Project and California State Water Project water pumping operations. 10
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2.

As a result of these unlawful operations, Stewart & Jasper Orchards, Arroyo Farms,

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11 LLC, and King Pistachio Grove (collectively, “Plaintiffs”), have been wrongfully denied water 12 allocations to which they would otherwise be entitled had Defendants acted in a lawful manner. 13 3. In order to protect their small and independent farming operations, Plaintiffs bring

14 this lawsuit against Defendants and seek declaratory and injunctive relief to prevent Defendants 15 from restricting federal and state water pumping operations or, in the alternative, to invalidate the 16 restrictions that are currently harming Plaintiffs. 17 18 4. JURISDICTION AND VENUE An actual and existing controversy exists between Plaintiffs and Defendants relative

19 to their respective rights and duties as set forth herein. This Court has jurisdiction over the subject 20 matter of this action pursuant to 28 U.S.C. § 1331 (federal question jurisdiction); § 1346(a)(2) 21 (civil action against United States); § 2201 (authorizing declaratory relief); § 2202 (authorizing 22 injunctive relief); and 5 U.S.C. § 702 (providing for judicial review of agency action under the 23 Administrative Procedure Act). 24 5. Venue in this district is predicated upon 5 U.S.C. § 703 and 28 U.S.C. § 1391(e),

25 in that a substantial part of the events or omissions giving rise to this claim occurred in this district. 26 /// 27 /// 28 ///
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1 2 3 6.

PARTIES Plaintiffs Plaintiff Stewart & Jasper Orchards is, and at all times mentioned herein was, a

4 corporation incorporated under the laws of the State of California, having its principal place of 5 business in the State of California. 6 7. Plaintiff Stewart & Jasper Orchards owns and operates farmland in California’s

7 Central Valley, on which it grows and sells hundreds of thousands of pounds of almonds and 8 walnuts each year to customers throughout California and the world. Stewart & Jasper Orchards 9 depends on a sufficient and reliable water supply in order to produce its permanent crops. As a 10 member of the Del Puerto Water District, water deliveries to Stewart & Jasper Orchards have been
3900 Lennane Drive, Suite 200 Sacramento, CA 95834 (916) 419-7111 FAX (916) 419-7747

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11 reduced to a meager 10% allocation due to the Biological Opinion, thereby forcing Stewart & 12 Jasper Orchards to rely on significantly more expensive third-party water supplies in order to 13 ensure a productive crop. 14 8. Implementation and enforcement of the Biological Opinion has resulted in and will

15 continue for the foreseeable future to result in reductions to the quantity of water available for 16 Plaintiff Stewart & Jasper Orchards, thereby making it significantly more costly to continue to 17 operate at full capacity. 18 9. Plaintiff Arroyo Farms, LLC, (hereinafter “Arroyo Farms”) is, and at all times

19 mentioned herein was, a limited liability company organized under the laws of the State of 20 California, having its principal place of business in the State of California. 21 10. Plaintiff Arroyo Farms, owns and operates farmland in California’s Central Valley,

22 on which it grows and sells hundreds of thousands of pounds of almonds each year to customers 23 throughout California and the world. Arroyo Farms depends on a sufficient and reliable water 24 supply in order to produce its permanent crops. As a member of the San Luis Water District, water 25 deliveries to Arroyo Farms have been reduced to a meager 10% allocation due to the Biological 26 Opinion, thereby forcing Arroyo Farms to rely on significantly more expensive third-party water 27 supplies in order to ensure a productive crop. In addition, in order to compensate for an 28 ///
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1 insufficient supply of water, Arroyo Farms has had to deplete its supply of groundwater and has 2 made significant monetary investments in doing so. 3 11. Implementation and enforcement of the Biological Opinion has resulted in and will

4 continue for the foreseeable future to result in reductions to the quantity of water available for 5 Plaintiff Arroyo Farms, thereby making it significantly more costly to continue to operate at full 6 capacity. 7 12. Plaintiff King Pistachio Grove is, and at all times mentioned herein was, a limited

8 partnership organized under the laws of the State of California, having its principal place of 9 business in the State of California. 10
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13.

Plaintiff King Pistachio Grove owns and operates farmland in California’s Central

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11 Valley, on which it grows and sells hundreds of thousands of pounds of pistachios each year to 12 customers throughout California and the world. King Pistachio Grove depends on a sufficient and 13 reliable water supply in order to produce its permanent crops. As a member of the Dudley Ridge 14 Water District, water deliveries to King Pistachio Grove have been reduced to a meager 40% 15 allocation due to the Biological Opinion, thereby forcing King Pistachio Grove to rely on 16 significantly more expensive third-party water supplies in order to ensure a productive crop. 17 14. Implementation and enforcement of the Biological Opinion has resulted in and will

18 continue for the foreseeable future to result in reductions to the quantity of water available for 19 Plaintiff King Pistachio Grove, thereby making it significantly more costly to continue to operate 20 at full capacity. 21 22 15. Defendants Defendant United States Department of Interior (Department) is an agency of the

23 United States. Congress has charged the Department with administering the ESA for certain 24 species. As the Department oversees the administration of the ESA, it is responsible for the 25 issuance of the Biological Opinion. 26 16. Defendant Kenneth Lee Salazar is the Secretary of the Interior and is named herein

27 and sued in his official capacity. Under Section 7(a), 16 U.S.C. § 1536(a), of the Endangered 28 Species Act, the Secretary is required to consult with and assist federal agencies in determining
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1 whether proposed federal agency actions will jeopardize the continued existence of threatened or 2 endangered species, or adversely modify the critical habitat of threatened or listed species. Under 3 Section 7(b), 16 U.S.C.§ 1536(b), after conclusion of formal consultation, the Secretary is required 4 to issue a written statement setting forth the Secretary’s opinion detailing how the proposed agency 5 action will affect the listed species and its critical habitat. As the Secretary is responsible for the 6 Department’s administration of the ESA, he is in turn responsible for the issuance of the Biological 7 Opinion. 8 17. Defendant United States Fish and Wildlife Service (Service) is an agency of the

9 United States government, within Interior, and has been delegated responsibility for the day-to-day 10 administration of the ESA, including the issuance of biological opinions. As such, the Service is
3900 Lennane Drive, Suite 200 Sacramento, CA 95834 (916) 419-7111 FAX (916) 419-7747

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11 responsible for the issuance of the Biological Opinion. 12 18. Defendant Rowan Gould is the Acting Director of the Service, and is named herein

13 and sued in his official capacity. The Acting Director is responsible for the administration of the 14 Endangered Species Act on behalf of the Secretary and, as such, is responsible for the issuance of 15 the Biological Opinion. 16 19. Defendant Ren Lohoefener is the Regional Director of the Service’s Pacific

17 Southwest Region, and is named herein and sued in his official capacity. The Regional Director 18 is responsible, in part, for the administration of the Endangered Species Act within the Pacific 19 Southwest Region, which includes California and, as such, is responsible for the issuance of the 20 Biological Opinion. 21 22 23 21. 20. All of these Defendants are responsible for the violations alleged in this complaint. Real Parties in Interest Real Party in Interest United States Bureau of Reclamation (Reclamation) is an

24 agency of the United States, within Interior, and is charged with various duties and responsibilities, 25 including operating the Central Valley Project and entering into and administering contracts for 26 Central Valley Project water on behalf of the United States of America. 27 /// 28 ///
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22.

Real Party in Interest California Department of Water Resources is an agency of

2 the State of California created pursuant to California Water Code section 120, et seq., and is 3 charged with operation of the State Water Project. 4 23. The Real Parties in Interest are responsible for the implementation of the Biological

5 Opinion. 6 7 8 24. LEGAL FRAMEWORK The Endangered Species Act and Section 7 Consultation The Endangered Species Act (ESA) grants the U.S. Fish and Wildlife Service

9 authority to list as endangered “any species which is in danger of extinction throughout all or a 10 significant portion of its range,” as well as authority to list as threatened “any species which is
3900 Lennane Drive, Suite 200 Sacramento, CA 95834 (916) 419-7111 FAX (916) 419-7747

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11 likely to become an endangered species within the foreseeable future throughout all or a significant 12 portion of its range.” 16 U.S.C. §§ 1532, 1533. 13 25. Section 9 of the ESA prohibits the taking of listed species. 16 U.S.C.

14 § 1538(a)(1)(B), 50 C.F.R. § 17.31(a). 15 26. Under Section 7 of the ESA, each federal agency “shall, in consultation with and

16 with the assistance of [the Service], insure that any action authorized, funded, or carried out by 17 such agency . . . is not likely to jeopardize the continued existence of any endangered species or 18 threatened species or result in the destruction or adverse modification of [critical] habitat of such 19 species.” 16 U.S.C. § 1536(a)(2). 20 27. After completion of consultation under Section 7(a)(2), the Service provides to the

21 consulted federal agency “a written statement setting forth the [Service’s] opinion, and a summary 22 of the information on which the opinion is based, detailing how the agency action affects the 23 species or its critical habitat.” Id. § 1536(b)(3)(A). Such an opinion by the Service is commonly 24 referred to as a Biological Opinion. 25 Endangered Species Act 84 (2001). 26 28. When a proposed action is found likely to either jeopardize the continued existence See The Stanford Environmental Law Society, The

27 of an endangered or threatened species or adversely modify the critical habitat of an endangered 28 or threatened species, the Service must “suggest those reasonable and prudent alternatives” (RPAs)
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1 that will not cause jeopardy to the species or result in the adverse modification of critical habitat. 2 16 U.S.C. § 1536(b)(3)(A). 3 29. The Service’s “reasonable and prudent alternatives” must be capable of

4 implementation in a manner consistent with the intended purpose of the action, and within the 5 scope of the acting agency’s legal authority and jurisdiction. They must also be economically and 6 technologically feasible, and avoid the likelihood of jeopardizing the continued existence of listed 7 species or result in the destruction or adverse modification of critical habitat. 50 C.F.R. § 402.02. 8 30. A reasonable and prudent alternative is not reasonable and prudent if the Service

9 fails to explain its economic impact and feasibility. 10
3900 Lennane Drive, Suite 200 Sacramento, CA 95834 (916) 419-7111 FAX (916) 419-7747

31.

When the Service proposes reasonable and prudent alternatives that will not cause

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11 jeopardy to the species or result in the adverse modification of critical habitat, they must also 12 specify “those reasonable and prudent measures” (RPMs) that are “necessary or appropriate to 13 minimize” any incidental taking of the species. 16 U.S.C. § 1536(b)(4)(C)(ii). 14 32. Any taking that is in compliance with the reasonable and prudent measures “shall

15 not be considered to be a prohibited taking of the species concerned.” 16 U.S.C. § 1536(o)(2). 16 33. RPMs, along with the terms that implement them, cannot alter the basic design,

17 location, scope, duration, or timing of the action and may involve only minor changes. 50 C.F.R. 18 § 402.14(i)(2). 19 20 34. The Administrative Procedure Act The Administrative Procedure Act authorizes judicial review of agency action for

21 which there is no other adequate remedy in court and requires that courts hold unlawful and set 22 aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of 23 discretion, or otherwise not in accordance with law. 5 U.S.C. §§ 704, 706. 24 25 35. The United States Constitution The United States Constitution authorizes Congress and duly authorized agencies

26 to “regulate Commerce . . . among the several States.” U.S. Const. art I, § 8. Congress and duly 27 authorized agencies may not regulate purely intrastate activities that have no commercial value. 28 ///
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1 2 36.

FACTS COMMON TO ALL CLAIMS FOR RELIEF Plaintiffs own and operate small farms throughout California’s Central Valley.

3 They grow almonds and pistachios, among other crops, and are part of a key sector of California’s 4 economy: agriculture. See William A. Matthews & Daniel A. Sumner, Univ. of Cal. Agric. Issues 5 Ctr. Issues Brief, California International Agricultural Exports in 2007 1 (Dec. 2008) (“Once 6 again, in 2007, almonds are the top export commodity for California with an estimated value of 7 $1.88 billion.”). 8 37. Plaintiffs’ abilities to contribute to California’s economy is, in turn, tied to state and

9 federal projects that convey water from Northern California to farms in the Central Valley. On 10 average, the federal Central Valley Project (CVP) and State Water Project (SWP) combine to
3900 Lennane Drive, Suite 200 Sacramento, CA 95834 (916) 419-7111 FAX (916) 419-7747

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11 deliver 10 million acre-feet of water per year, serving to irrigate more than 3.6 million acres of 12 farmland per year. Cal. Dep’t of Water Res., California State Water Project and the Central 13 Valley Project, available at http://www.water.ca.gov/swp/cvp.cfm (last visited May 12, 2009). 14 As one author has noted, “[t]hese federal and state projects are the source of much of California’s 15 economic prosperity.” Roderick E. Walston, California Water Law: Historical Origins to the 16 Present, 29 Whittier L. Rev. 765, 778 (2008). 17 38. State and federal water pumps play a central role in ensuring the conveyance of

18 water by way of the CVP and the SWP. In particular, the CVP’s Jones Pumping Plant and the 19 SWP’s Banks Pumping Plant export water from the Sacramento-San Joaquin Delta to the Central 20 Valley and Southern California, helping to provide a reliable water supply for Plaintiffs. See 21 generally Jay Lund, et al., Pub. Policy Inst. of Cal., Comparing Futures for the Sacramento-San 22 Joaquin Delta 21 (2008), available at http://www.ppic.org/content/pubs/report/R_708EHR.pdf 23 (last visited May 12, 2009). 24 39. Plaintiffs respectfully appear before this Court due to the restrictions on water

25 deliveries that result from Defendants’ actions. Defendants’ issuance of the Biological Opinion 26 has resulted in a significant reduction in south-of-Delta water deliveries in order to protect the 27 Delta smelt. In particular, the Biological Opinion mandates reduced water exports and has forced 28 ///
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1 the CVP and SWP to deliver only 10% and 40% of allocation, respectfully, to south-of-Delta 2 agricultural customers, including Plaintiffs. 3 40. Plaintiffs are bearing the costs of substantial reductions in available water from

4 CVP and SWP pumping and deliveries. In order to compensate for reduced water deliveries and 5 maintain a viable crop, Plaintiffs have had to rely on expensive third-party water supply. The 6 water delivery restrictions that are based on the Biological Opinion have significantly increased 7 Plaintiffs’ operating expenses; without relief from this Court, layoffs and the further loss of income 8 are imminent. See Richard E. Howitt, et al., Economic Impacts of Reductions in Delta Exports on 9 Central Valley Agriculture, Univ. of Cal., Giannini Found. of Agric. Econ., Agric. & Res. Econ. 10 Update, Jan./Feb. 2009, at 3-4 (noting that “substantial reductions in available water from CVP and
3900 Lennane Drive, Suite 200 Sacramento, CA 95834 (916) 419-7111 FAX (916) 419-7747

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11 SWP deliveries . . . will severely reduce Central Valley income, employment, revenues, and 12 cropped acres” and that “income loss to the Central Valley could be as high as $2.2 billion with 13 80,000 jobs lost”), available at http://www.agecon.ucdavis.edu/extension/update/issues/v12n3.pdf 14 (last visited May 12, 2009). 15 41. Defendants’ actions have created an untenable situation for Plaintiffs and for

16 California’s agricultural industry at large. As Governor Arnold Schwarzenegger has remarked, 17 “the reality is that farmers do not have a reliable supply of water they can count on, farm workers 18 fear losing their jobs because crops are not being planted, and in towns across the Central Valley, 19 unemployment is skyrocketing.” Press Release, Office of the Governor, Gov. Schwarzenegger 20 Joins Water March to Highlight Urgent Need to Improve California’s Water Supply (Apr. 17, 21 2009), available at http://gov.ca.gov/index.php?/press-release/12038 (last visited May 12, 2009). 22 23 24 42. The CVP and the SWP provide water to millions of Californians, including Coordinated Operations of the Central Valley Project and the State Water Project

25 Plaintiffs. 26 43. The CVP is operated by the United States Bureau of Reclamation (Reclamation),

27 while the SWP is operated by the California Department of Water Resources (DWR). 28 ///
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44.

Given the two projects’ reliance upon a common supply of water, Reclamation and

2 the DWR coordinate CVP and SWP operations, thereby ensuring a sufficient water supply for 3 water rights holders and contractors. 4 5 45. The Biological Opinion and the Delta Smelt The Service listed the delta smelt as a threatened species on March 5, 1993. 58 Fed.

6 Reg. 12,854 (Mar. 5, 1993). The Service, however, made no finding that the delta smelt species 7 substantially affects interstate commerce. In fact, the Service concluded that the delta smelt “is 8 the only smelt endemic to California.” Id. at 12,854. The delta smelt also has no commercial 9 value. Id. at 12,860. 10
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46.

On May 16, 2008, Reclamation requested to enter into Section 7 consultation with

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11 the Service on the Long Term Operational Criteria and Plan (OCAP) for coordination of the CVP 12 and the SWP. 13 47. On December 15, 2008, the Service issued a biological opinion on the Long Term

14 Operational Criteria and Plan for coordination of the CVP and the SWP (hereinafter “BiOp”). The 15 BiOp concluded that “the coordinated operations of the CVP and the SWP, as proposed, are likely 16 to jeopardize the continued existence of the delta smelt.” BiOp at 276. The BiOp also concluded 17 that “the coordinated operations of the CVP and SWP, as proposed, are likely to adversely modify 18 delta smelt critical habitat.” Id. at 278. 19 48. The Service’s BiOp includes a Reasonable and Prudent Alternative (RPA) the

20 Service claims would jeopardize the continued existence of the delta smelt or result in the 21 destruction or adverse modification of delta smelt critical habitat. BiOp at 279. The RPA includes 22 components that seek to “reduce entrainment of pre-spawning adult delta smelt during December 23 to March by controlling [Old & Middle River (OMR)] flows during vulnerable periods” and to 24 prevent direct mortality of delta smelt larvae and juveniles by entrainment by “improv[ing] flow 25 conditions in the Central and South Delta so that larval and juvenile delta smelt can successfully 26 rear in the Central Delta and move downstream when appropriate.” BiOp at 279-85. 27 /// 28 ///
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49.

The Service’s Biological Opinion includes reasonable and prudent measures it

2 believes are necessary and appropriate to minimize the effect of the proposed action on the delta 3 smelt. BiOp at 294. 4 50. The Biological Opinion states that one reasonable and prudent measure of the

5 proposed action shall be to “[m]inimize adverse effects of the operations of the Permanent 6 Operable Gates.” BiOp at 294. In order to implement this reasonable and prudent measure, 7 Defendants submitted that “[t]he Service shall have the final decision on the operations of the 8 Permanent Gates. The members of the [Gate Operations Review Team] can provide suggestions 9 to operate the gates, but the ultimate decision on how to operate the gates to protect delta smelt will 10 be made by the Service.” Id.
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51.

The other reasonable and prudent measures included in the Biological Opinion are

12 that the proposed action shall minimize adverse effects of operations of the North Bay Aqueduct, 13 provide for the accumulation of real time data on the abundance and distribution of delta smelt in 14 the Bay-Delta, and minimize adverse effects of the Banks and Jones operations on delta smelt. Id. 15 16 52. Effects on Water Supply The Service’s Biological Opinion has resulted in the unlawful restrictions of water

17 exports from the Sacramento-San Joaquin Delta and, without relief from this Court, it will continue 18 to do so for the foreseeable future. 19 53. RPA Components 1 and 2 seek to reduce delta smelt entrainment losses by

20 maintaining a negative limit on Old and Middle River flows. For example, RPA Component 1 21 requires that “[w]here a 14-day running average is established, the average daily OMR flow must 22 be no more negative than the required OMR flow.” BiOp at 281. Likewise, given certain 23 conditions under RPA Component 2, “the projects shall operate to maintain OMR flows no more 24 negative than -1,250 to -5,000 cfs based on a 14-day running average with a simultaneous 5-day 25 running average within 25 percent of the applicable 14-day OMR flow requirement.” Id. at 282. 26 Both RPA Components 1 and 2 mandate that the Service make final determinations as to OMR 27 flows required to protect delta smelt. See id. at 281-82. 28 ///
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1 2 flows.

54.

The Service has acted on its self-delegated authority by restricting average OMR

On March 24, 2009, the Service required “the Projects to implement a 14-day

3 average OMR flow of -5,000 cfs with a 5-day average OMR below -6,250 cfs.” U.S. Fish 4 & Wildlife Serv., Service Decision March 24, 2009, available at

5 http://www.fws.gov/sacramento/es/documents/Service_OCAP_Decisions/Service_OCAP_BO_ 6 decision_3-24-2009.pdf (last visited May 14, 2009). On April 7, 2009, the Service further 7 restricted water exports by requiring “the Projects to implement a 14-day average OMR flow of 8 -4,000 cfs with a 5-day average OMR below -5,000 cfs.” U.S. Fish & Wildlife Serv., Service 9 Decision April 7, 2009, available at http://www.fws.gov/sacramento/es/documents/

10 Service_OCAP_Decisions/Service_OCAP_BO_decision_4-7-09.pdf (last visited May 14, 2009).
3900 Lennane Drive, Suite 200 Sacramento, CA 95834 (916) 419-7111 FAX (916) 419-7747

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11 These decisions were made in order to “prevent delta smelt from becoming entrained into the south 12 delta . . . [e]ven though no delta smelt were salvaged . . . at the export facilities.” See id. 13 55. The Service’s Biological Opinion and the decisions it has made thereunder have

14 resulted in Reclamation approving only a 10% allocation for agricultural customers south of the 15 Sacramento-San Joaquin Delta, including Plaintiffs Stewart & Jasper Orchards and Arroyo Farms, 16 LLC. U.S. Bureau of Reclamation, Central Valley Project Water Supplies Improve: Agricultural 17 Water Service Contractors North of the Delta Allocated 15 Percent Supply, South of the Delta 18 Contractors, 10 Percent, available at http://www.usbr.gov/newsroom/newsrelease/

19 detail.cfm?RecordID=27761 (last visited May 14, 2009). 20 56. The Service’s Biological Opinion and the decisions it has made thereunder have

21 resulted in the DWR approving only a 40% allocation for SWP contractors and customers, 22 including Plaintiff King Pistachio Grove. Press Release, Cal. Dep’t of Water Res., DWR 23 Raises SWP Deliveries to 40 Percent (May 20, 2009), available at

24 http://www.water.ca.gov/news/newsreleases/2009/052009finalallocation.doc (last visited May 20, 25 2009). 26 /// 27 /// 28 ///
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57.

The Governor of California has declared a state-wide drought emergency, citing “a

2 biological opinion issued by the United States Fish and Wildlife Service on December 15, 2008, 3 [that] imposed 30 percent restriction on water deliveries from the State Water Project and the 4 Central Valley Project to protect Delta Smelt.” Press Release, Office of the Governor, Gov. 5 Schwarzenegger Takes Action to Address California’s Water Shortage: Proclaims State of 6 Emergency, Directs Government to Utilize Resources, Help People (Feb. 27, 2009), available at 7 http://gov.ca.gov/index.php?/press-release/11556/ (last visited May 14, 2009). 8 9 10
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SPECIFIC ALLEGATIONS THAT SUPPORT INJUNCTIVE RELIEF 58. Plaintiffs hereby reallege and incorporate by reference the allegations contained in

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11 Paragraphs 1 through 57 as though fully set forth herein. 12 59. If an injunction does not issue enjoining Defendants from implementing the

13 Biological Opinion on the Long Term Operational Criteria and Plan for coordination of the CVP 14 and the SWP and its measures, Plaintiffs will be irreparably harmed by being subject to 15 unnecessary and costly water restrictions adopted contrary to applicable federal law. 16 17 60. 61. Plaintiffs have no plain, speedy, and adequate remedy at law. If not enjoined by this Court, Defendants will continue to enforce and act in reliance

18 upon the Biological Opinion in derogation of the rights of Plaintiffs. 19 20 21 62. Plaintiffs hereby reallege and incorporate by reference the allegations contained in SPECIFIC ALLEGATIONS THAT SUPPORT DECLARATORY RELIEF

22 Paragraphs 1 through 61 as though fully set forth herein. 23 63. An actual and substantial controversy exists between Plaintiffs and Defendants over

24 Defendants’ duty to comply with the United States Constitution, the Endangered Species Act, and 25 the Administrative Procedure Act in issuing the Biological Opinion on the Long Term Operational 26 Criteria and Plan for coordination of the CVP and the SWP. 27 64. This case is presently justiciable because Defendants’ failure to comply with these

28 laws is the direct result of final agency action that has caused and will continue to cause immediate
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1 and concrete injury to Plaintiffs by subjecting them to unnecessary and costly water restrictions 2 adopted contrary to applicable federal law. Plaintiffs have a vital interest in knowing whether the 3 Biological Opinion is constitutionally and statutorily valid. 4 5 6 7 8 9 65. Declaratory relief is, therefore, appropriate to resolve this controversy. CLAIMS FOR RELIEF First Claim for Relief Failure To Explain Reasonable and Prudent Alternative’s Consistency With the Scope of the Bureau of Reclamations Legal Authority and Jurisdiction (Violation of the APA) 66. Plaintiffs incorporate by this reference all the allegations set forth in Paragraphs 1

10 through 65.
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67.

When a proposed action is found likely to either jeopardize the continued existence

12 of an endangered species or adversely modify the critical habitat of an endangered species, 13 Defendants must “suggest those reasonable and prudent alternatives” (RPAs) that will not cause 14 jeopardy to the species or result in the adverse modification of critical habitat. 16 U.S.C. 15 § 1536(b)(3)(A). 16 68. Defendants’ “reasonable and prudent alternatives” must be capable of

17 implementation in a manner consistent with the intended purpose of the action and within the scope 18 of the acting agency’s legal authority and jurisdiction. They must also be economically and 19 technologically feasible, and avoid the likelihood of jeopardizing the continued existence of listed 20 species or result in the destruction or adverse modification of critical habitat. 50 C.F.R. § 402.02. 21 69. The Biological Opinion fails to explain how the reasonable and prudent alternative

22 is consistent with the scope of the Bureau of Reclamation’s legal authority and jurisdiction. 23 70. By failing to explain how the reasonable and prudent alternative is consistent with

24 the scope of the Bureau of Reclamation’s legal authority and jurisdiction, the Service acted 25 arbitrarily and capriciously, contrary to law, and in excess of its statutory authority, and therefore 26 violated the APA, 5 U.S.C. § 706(2). 27 /// 28 ///
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1 2 3 4 71.

Second Claim for Relief Failure To Explain Economic and Technological Feasibility of Reasonable and Prudent Alternative (Violation of the APA) Plaintiffs incorporate herein by this reference all the allegations set forth in

5 Paragraphs 1 through 70. 6 72. A reasonable and prudent alternative is not reasonable and prudent if the Service

7 fails to explain its economic impact and feasibility. 8 73. The Biological Opinion fails to explain how the reasonable and prudent alternative

9 is economically and technologically feasible. 10
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74.

By failing to explain how the reasonable and prudent alternative is economically

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11 and technologically feasible, the Service acted arbitrarily and capriciously, contrary to law, and 12 in excess of its statutory authority, and therefore violated the APA, 5 U.S.C. § 706(2). 13 14 15 16 Third Claim for Relief Illegal Reservation of Authority Over Bureau of Reclamation and California Department of Water Resources Operations (Violation of the APA) 75. Plaintiffs incorporate herein by this reference all the allegations set forth in

17 Paragraphs 1 through 74. 18 76. Defendants do not have authority to make ultimate decisions on operations managed

19 by the Bureau of Reclamation and the California Department of Water Resources. 20 77. RPA Component 1 states that “the Service will make the final determination as to

21 OMR flows required to protect delta smelt.” BiOp at 281. 22 78. RPA Component 2 states that “[t]he Service shall make the final determination

23 regarding specific OMR flows.” Id. at 282. 24 79. When Defendants propose reasonable and prudent alternatives that will not cause

25 jeopardy to the species or result in the adverse modification of critical habitat, they must also 26 specify “those reasonable and prudent measures” (RPMs) that are “necessary or appropriate to 27 minimize” any incidental taking of the species. 16 U.S.C. § 1536(b)(4)(C)(ii). 28 ///
Complaint for Declaratory & Injunctive Relief

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1

80.

Reasonable and prudent measures, along with the terms that implement them,

2 cannot alter the basic design, location, scope, duration, or timing of the action and may involve 3 only minor changes. 50 C.F.R. § 402.14(i)(2). 4 81. The Biological Opinion states that one reasonable and prudent measure of the

5 proposed action shall be to “[m]inimize adverse effects on the operations of the Permanent 6 Operable Gates.” BiOp at 294. In order to implement this RPM, Defendants submitted that “[t]he 7 Service shall have the final decision on the operations of the Permanent Gates. The members of 8 the [Gate Operations Review Team] can provide suggestions to operate the gates, but the ultimate 9 decision on how to operate the gates to protect delta smelt will be made by the Service.” Id. 10
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82.

By illegally reserving ultimate authority to itself over Bureau of Reclamation and

PACIFIC LEGAL FOUNDATION

11 California Department of Water Resources operations, the Service acted arbitrarily and 12 capriciously, contrary to law, and in excess of its statutory authority, and therefore violated the 13 APA, 5 U.S.C. § 706(2). 14 15 16 17 83. Fourth Claim for Relief Failure To Articulate a Rational Connection Between Defendants’ Conclusions and the Reasonable and Prudent Alternative (Violation of the APA) Plaintiffs incorporate herein by this reference all the allegations set forth in

18 Paragraphs 1 through 82. 19 84. RPA Components 1 and 2 are designed to reduce entrainment of adult, juvenile, and

20 larval delta smelt. BiOp at 280-82. However, Defendants concluded that “[t]he population-level 21 effects of delta smelt entrainment vary; delta smelt entrainment can best be characterized as a 22 sporadically significant influence on population dynamics.” Id. at 210. Moreover, “currently 23 published analyses of long-term associations between delta smelt salvage and subsequent 24 abundance do not support the hypothesis that entrainment is driving population dynamics year in 25 and year out.” Id. (citations omitted). 26 85. By imposing RPA Components 1 and 2 without having found that entrainment has

27 contributed to a population-level decline of the delta smelt species, the Service acted arbitrarily 28 ///
Complaint for Declaratory & Injunctive Relief

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1 and capriciously, contrary to law, and in excess of its statutory authority, and therefore violated 2 the APA, 5 U.S.C. § 706(2). 3 4 5 6 86. Plaintiffs incorporate herein by this reference all the allegations set forth in Fifth Claim for Relief Failure To Explain Economic Impacts of Reasonable and Prudent Measures (Violation of the APA)

7 Paragraphs 1 through 85. 8 87. The other reasonable and prudent measures included in the Biological Opinion are

9 that the proposed action shall minimize adverse effects of operations of the North Bay Aqueduct, 10 obtain real time data on the abundance and distribution of delta smelt in the Bay-Delta, and
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PACIFIC LEGAL FOUNDATION

11 minimize adverse effects of the Banks and Jones operations on delta smelt. BiOp at 294. 12 88. Neither the reasonable and prudent measures nor the terms and conditions that

13 implement the reasonable and prudent measures contain a statement that allows for Reclamation 14 to take into consideration the economic impacts of implementing the reasonable and prudent 15 measures. 16 89. In order to determine whether a given RPM is “necessary or appropriate,” the

17 Service must analyze the RPM’s potential economic impact. 18 90. By failing to consider the economic impacts of implementing the reasonable and

19 prudent measures, the Service acted arbitrarily and capriciously, contrary to law, and in excess of 20 its statutory authority, and therefore violated the APA, 5 U.S.C. § 706(2). 21 22 23 24 91. Plaintiffs incorporate herein by reference all the allegations set forth in Paragraphs Sixth Claim for Relief Illegal Section 7 Consultation (Violation of the U.S. Constitution or, in the alternative, of the APA)

25 1 through 90. 26 92. The U.S. Constitution grants Congress the power to “regulate Commerce . . . among

27 the several States.” U.S. Const. art. I, § 8. Under its commerce power, Congress can regulate the 28 channels of interstate commerce; regulate and protect the instrumentalities of interstate commerce,
Complaint for Declaratory & Injunctive Relief

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1 and persons or things in intestate commerce; and regulate activities that substantially affect 2 interstate commerce. United States v. Morrison, 529 U.S. 598, 608-09 (2000). 3 93. Pursuant to the Endangered Species Act, the Service classified the delta smelt as

4 a threatened species on March 5, 1993. 58 Fed. Reg. 12,854 (Mar. 5, 1993). The Service, 5 however, made no finding that the delta smelt species substantially affects interstate commerce. 6 In fact, the Service concluded that the delta smelt “is the only smelt endemic to California.” Id. 7 at 12,854. The delta smelt also has no commercial value. Id. at 12,860. 8 94. Because the delta smelt is a purely intrastate species, and because it has no

9 commercial value, Sections 7(a)(2) and 9 of the ESA, 16 U.S.C. §§ 1536(a)(2), 1538, as applied 10 to the Long Term Operational Criteria and Plan for coordination of the Central Valley Project and
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PACIFIC LEGAL FOUNDATION

11 the State Water Project, are invalid exercises of constitutional authority. 12 95. In the alternative, by entering into consultation on the coordinated operations of the

13 Central Valley Project and the State Water Project and on the effects the coordinated operations 14 have on a species over which it has no authority, the Service acted arbitrarily and capriciously, 15 contrary to law, and therefore violated the APA, 5 U.S.C. § 706(2). 16 17 18 19 PRAYER FOR RELIEF Wherefore, Plaintiffs Pray As to the First Claim for Relief: That this Court declare the Biological Opinion on the Long Term Operational Criteria and

20 Plan for coordination of the Central Valley Project and the State Water Project invalid under the 21 Administrative Procedure Act, 5 U.S.C. § 706, because Defendants failed to explain how the 22 reasonable and prudent alternative is consistent with the scope of the Bureau of Reclamation’s 23 legal authority and jurisdiction, and enjoin Defendants from enforcing or otherwise acting pursuant 24 to the Biological Opinion. 25 26 As to the Second Claim for Relief: That this Court declare the Biological Opinion to be invalid under the Administrative

27 Procedure Act, 5 U.S.C. § 706, because Defendants failed to explain how the reasonable and 28 ///
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1 prudent alternative is economically and technologically feasible, and enjoin Defendants from 2 enforcing or otherwise acting pursuant to the Biological Opinion. 3 4 As to the Third Claim for Relief: That this Court declare the Biological Opinion to be invalid under the Administrative

5 Procedure Act, 5 U.S.C. § 706, because Defendants illegally reserved authority to themselves over 6 Bureau of Reclamation and California Department of Water Resources operations, and enjoin 7 Defendants from enforcing or otherwise acting pursuant to the Biological Opinion. 8 9 As to the Fourth Claim for Relief: That this Court declare the Biological Opinion to be invalid under the Administrative

10 Procedure Act, 5 U.S.C. § 706, because Defendants imposed RPA Components 1 and 2 without
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PACIFIC LEGAL FOUNDATION

11 having found that entrainment has contributed to a population-level decline of the delta smelt 12 species, and enjoin Defendants from enforcing or otherwise acting pursuant to the Biological 13 Opinion. 14 15 As to the Fifth Claim for Relief: That this Court declare the Biological Opinion to be invalid under the Administrative

16 Procedure Act, 5 U.S.C. § 706, because Defendants failed to consider the economic impacts of 17 implementing the reasonable and prudent measures of the Biological Opinion, and enjoin 18 Defendants from enforcing or otherwise acting pursuant to the Biological Opinion. 19 20 As to the Sixth Claim for Relief: That this Court declare that Section 7(a)(2) of the Endangered Species Act, 16 U.S.C.

21 § 1536(a)(2), as applied to the Long Term Operational Criteria and Plan for coordination of the 22 Central Valley Project and the State Water Project, is an invalid exercise of congressional power 23 under the U.S. Constitution; that Sections 7(a)(2) and 9 of the ESA, 16 U.S.C. §§ 1536(a)(2), 1538, 24 are inapplicable to the coordinated operations of the Central Valley Project and the State Water 25 Project with respect to the projects’ effects on the delta smelt; and that Defendants are without 26 authority to consult with the Bureau of Reclamation and the California Department of Water 27 Resources on the Long Term Operational Criteria and Plan for coordination of the Central Valley 28 ///
Complaint for Declaratory & Injunctive Relief

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1 Project and the State Water Project, and that the Court invalidate and vacate the Biological Opinion 2 accordingly, 3 4 or, in the alternative That this Court declare the Biological Opinion to be invalid under the Administrative

5 Procedure Act, 5 U.S.C. § 706, because Defendants are without constitutional authority to consult 6 with the Bureau of Reclamation and the California Department of Water Resources on the Long 7 Term Operational Criteria and Plan for coordination of the Central Valley Project and the State 8 Water Project, and that the Court invalidate and vacate the Biological Opinion accordingly. 9 10
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As to all claims for relief: That the Court grant a permanent injunction preventing implementation of the Biological

PACIFIC LEGAL FOUNDATION

11 Opinion and its measures; retain jurisdiction over this matter until such time as Defendants have 12 fully complied with the U.S. Constitution, the Endangered Species Act, and the Administrative 13 Procedure Act; and that the Court award Plaintiffs its costs of litigation, including, but not limited 14 to, reasonable attorneys’ fees and expert witness fees, and fees and costs under 5 U.S.C. § 504 and 15 28 U.S.C. § 2412; and grant Plaintiffs such other relief as the Court may deem just and proper. 16 17 18 19 20 By 21 22 23 24 25 26 27 28
Complaint for Declaratory & Injunctive Relief

DATED: May 21, 2009. Respectfully submitted, M. REED HOPPER DAMIEN M. SCHIFF BRANDON M. MIDDLETON /s/ Brandon M. Middleton BRANDON M. MIDDLETON

Attorneys for Plaintiffs

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