Temporary Restraining Order, 1:09-CV-01053, Consolidated Salmonid Cases, Feb. 5, 2010

					1                   UNITED STATES DISTRI CT CO URT
2              FOR THE EASTERN DISTRICT OF C ALIFORNIA
3
     CONSOLID ATED SALMONI D CASES        1:09-CV- 01053 OWW DLB
4
     SAN LUIS & DELTA-MENDOTA
5    WATER AU THORIT Y, et al. v.         MEMORANDUM DEC ISION AND
     LOCKE, e t al.                       ORDER RE PLAIN TIFFS’ MOTION
6
     STOCKTON EAST WATER                  FOR TEMPORARY RESTRA INING
7    DISTRICT , et a l. v. NOAA, et       ORDER
     al.
8
     STATE WA TER CONTRACT ORS v.
9    LOCKE, e t al.
10   KERN COU NTY WATER AG ENCY, et
     al. v. UNITED STATES
11   DEPARTME NT OF COMMER CE, et
     al.
12
     OAKDALE IRRIGATION D ISTRICT,
13   et al. v . UNITED STA TES
     DEPARTME NT OF COMMER CE, et
14   al.
15   METROPOL ITAN WATER D ISTRICT
     OF CALIF ORNIA v. NAT IONAL
16   MARINE F ISHERIES SER VICE, et
     al.
17
18       Plaintif fs, San Luis & Delta Mendota Water Author ity

19   (the “Au thority”) an d Westlands Water District
20   (“Westla nds”), move for a Temporary Restrai ning O rder
21
     (“TRO”) against the implementation of Reasonable and
22
     Prudent Alternative (“RPA”) Action IV.2.3 set for th in
23
     the Nati onal Marine Fisheries Service’s (“NMFS”) June 4,
24
     2009 Bio logical Opin ion (“2009 Salmonid BiOp”), w hich
25
26   addresse s the impact s of the coordinated operatio ns of

27   the fede ral Central Valley Project (“CVP”) and St ate

28
                                      1
1    Water Pr oject (“SWP” ) on the Central Valley winte r-run
2    and spri ng-run Chinook salmon, Central Valley ste elhead,
3
     Southern Distinct Po pulation Segment of Green Sturgeon ,
4
     and Sout hern Residen t Killer Whales (“Listed Spec ies”).
5
     Doc. 164 , filed Jan. 27, 2010.     San Luis and West lands
6
     concurre ntly filed a motion for preliminary injun ction
7
8    raising additional g rounds for enjoining Action I V.2.3.

9    Doc. 164 .

10       Plaintif fs State Wat er Contractors; Metropolitan
11   Water Di strict of So uthern California; and Kern C ounty
12
     Water Ag ency and Coa lition for a Sustainable Delt a joined
13
     the TRO motion.     Doc s. 177, 179 & 181.   Plaintiff s
14
     Oakdale Irrigation D istrict, et al., and Interven or
15
     Californ ia Departmen t of Water Resources (“DWR”), the
16
17   operator of the SWP, filed statements of non-opposition.

18   Docs. 18 0 & 185.    Fe deral Defendants and Defendan t
19   Interven ors opposed.    Doc. 190 & 187.
20
         The TRO motion came on for hearing February 2, 2010,
21
     on short ened notice, in Courtroom 3 of the above-
22
     captione d Court.    Th e parties were represented by
23
     counsel, as noted in the record in open court.
24
25
                              I. BACKGROU ND
26
         Plaintif fs seek temp orary injunctive relief on th e
27
     grounds that:
28
                                     2
1        (1) the 2009 Salmoni d BiOp is arbitra ry, ca pricious,
2        and cont rary to law because:
3
              (a) NMFS allegedly c onducted an effects analysis
4
              that imp roperly over states impacts attributable
5
              to the c oordinated o perations of the CVP and
6
              SWP;
7
8             (b) NMFS failed to c learly define or

9             consiste ntly apply a relevant environmental

10            baseline ;
11            (c) NMFS failed to d istinguish between
12
              discreti onary and no n-dis cret ionary CVP and SWP
13
              activiti es, which ov erstated the effects of
14
              coordina ted operatio ns of the Projects;
15
              (d) RPA Action IV.2. 3 is arbitrary and
16
17            capricio us, because it is without factual or

18            scientif ic justifica tion and/or is not supported
19            by the b est availabl e science; and
20
         (2) NMFS and the Uni ted States Bureau of Reclamat ion
21
     (“Reclam ation”) fail ed to comply with the Nationa l
22
     Environm ental Policy Act (“NEPA”) in issuin g and
23
     implemen ting the 200 9 Salmonid BiOp.
24
25       Plaintif fs further c laim that the implementation of

26   Action I V.2.3 will c ause them continuing irrepara ble harm

27   and that the public interest and balance of hards hips
28
                                   3
1    favor in junctive rel ief.
2
                      II. STANDARDS OF D ECISIO N
3
     A.   Temporar y Restrainin g Order.
4
          Injuncti ve relief, w hether temporary or permanent , is
5
6    an “extr aordinary re medy, never awarded as of rig ht.”

7    Winter v . Natural Re sources Defense Council, 129 S. Ct .

8    365, 376 (2008); Weinberg er v. Romero-Barce lo, 456 U.S.
9    305, 312 (1982).   Th e standard for relief applica ble to a
10
     temporar y restrainin g order is the same as for a
11
     prelimin ary injuncti on.    Stuhlbarg Int’l Sales Co ., Inc.
12
     v. John D. Brush & C o., 2 40 F .3d 832, 839 n.7 (9t h Cir.
13
     2001).
14
15        Four fac tors must be established by a preponderan ce

16   of the e vidence to q ualify for temporary injuncti ve

17   relief:
18        1.   Likeliho od of succes s on the merits;
19
          2.   Likeliho od the movin g party will suffer
20
          irrepara ble harm abs ent injunctive relief;
21
          3.   The bala nce of equities tips in the m oving
22
23        parties’ favor; and

24        4.   An injun ction is in the public interest.

25   Winter, 129 S.Ct. at 374; Am. Trucking Ass’n v. City o f
26   Los Ange les, 5 59 F.3d 1046, 1052 (9th Cir. 2009).
27
28
                                     4
1    B.     Balancin g of the Har ms in ESA Cases.
2           The Supr eme Court held in TVA v. Hill, 437 U.S. 153,
3    194 (197 8), that Con gress struck the balance in f avor of
4
     affordin g endangered species the highest of prior ities.
5
     In adopt ing the Enda ngered Species Act (“ESA”), C ongress
6
     intended to “halt an d reverse the trend toward sp ecies’
7
     extincti on, wh atever the cost.”                      Id. at 184 (emphasis
8
9    added).        TVA v. Hill cont inues to be viable .                        See Nat’l

10   Ass’n of Home Builde rs v. Defenders of Wildlife, 551 U.S.

11   664, 669 -71 (2007); see a lso United States v. Oak land
12   Cannabis Buyers’ Co- op., 532 U.S. 483, 496-97 (2001);
13
     Amoco Pr od. Co. v. V illage of Gambell, 480 U.S. 531, 5 43
14
     n.9 (198 7).
15
            Winter d oes not modi fy or discuss the TVA v . Hill
16
     standard . 1       Although Winte r al tered th e Ninth Circ uit’s
17
18   general preliminary injunctive relief standard by making

19   that sta ndard more rigorous, Winter did not address, l et
20   alone ch ange, the Ci rcuit’s approach to the balan cing of
21
     hardship s where enda ngered species and their crit ical
22
     habitat are jeopardi zed.                  See Biodiversity Legal Found .
23
     v. Badgl ey, 30 9 F.3d 1166 , 1169 (9th Cir. 2 002) ( Congr ess
24
     removed the courts’ traditional equitable discret ion to
25
26   balance parties’ com peting interests in ESA injun ction

27
            1
               Al th ou gh W in te r in vo lve d ES A- li st e d s pe ci es , th e Wi nt er
28   dec is io n on ly a dd re ss ed cl ai ms u nd e r N EP A.
                                                    5
1    proceedi ngs); Nat’l Wildlife Fed’n v. Burlington N. R. R.,
2    Inc., 23 F.3d 1508, 1510- 11 (9th Cir. 1994)(same) .
3
          Two post -Winter dist rict cour t cases declined to
4
     balance the equities in evaluating requests for
5
     injuncti ve relief un der the ESA, applying TVA v. Hill’ s
6
     reasonin g.   Or egon Natural Desert Ass’n v. Kimbell, 2009
7
8    WL 16630 37, at *1 (D . Or. June 15, 2009); Animal Welfare

9    Inst. v. Martin, 588 F. Supp. 2d 70, 105-106 (D. Me.

10   2008).
11        TVA v. H ill an d related Ninth Circuit authorities
12
     foreclos e the distri ct court’s traditional discre tion to
13
     balance equities und er the ESA.    However, there i s no
14
     such bar in NEPA inj unction p roceedings.   This case is at
15
     the inte rsection of ESA and NEPA law, requiring
16
17   consider ation of mor e than the ESA.

18
     C.   Administ rative Proce dure Act.
19
          The Admi nistrative P rocedure Act (“APA”) requires
20
     Plaintif fs to show t hat NMFS’s action was “arbitr ary,
21
22   capricious, an abuse of discretion, or otherwise not in

23   accordan ce with law. ”   5 U.S.C. § 706(2)(A).

24
          1.   Deferenc e to Agency Expertise.
25
          The Cour t must defer to the agency on matters wit hin
26
     the agen cy’s experti se, unless the agency complet ely
27
28   failed t o address some factor, consid eratio n of which was
                                  6
1    essentia l to making an informed decision.      Nat’l Wildl ife
2    Fed’n v. NMFS, 422 F.3d 782, 798 (9th Cir. 2005).        The
3
     court “m ay not subst itute its judgment for that o f the
4
     agency c oncerning th e wisdom or prudence of the a gency’s
5
     action.”    Rive r Runn ers f or Wilderness v. M artin, ---
6
     F.3d --- , 2010 WL 33 7337 *4 (9th Cir. June 10, 2009).
7
8               In condu cting an APA review, the court must
                determin e whether th e agency’s decision is
9               “founded on a ration al connection between the
                facts fo und and the choices made ... and whether
10              [the age ncy] has com mitted a clear error of
                judgment .” Ariz. Cattle Growers’ Ass’n v. U.S.
11              Fish & W ildlife, 273 F.3d 122 9, 1243 (9th C ir.
12              2001). “The [agency ’s] action ... need be only
                a reason able, not th e best or most reasonab le,
13              decision .” Nat’l Wildlife Fed. v. Burford, 871
                F.2d 849 , 855 (9th C ir. 1989).
14   Id.
15
           2.   Record R eview.
16
           A court reviews a bi ological opinion “based upon the
17
18   evidence contained i n the administrative record.”

19   Arizona Cattle Growe rs’ Ass’n, 273 F. 3d at 1245.

20   Judicial review unde r the APA must focus on the
21   administ rative recor d already in existence, not s ome new
22
     record m ade initiall y in a reviewing court.     Part ies may
23
     not use “post- decision information as a new
24
     rational ization eith er for sustaining or attacking the
25
     agency’s decision.”     Ass’n of Pac. Fi sherie s v. EPA, 615
26

27   F.2d 794 , 811- 12 (9th Cir. 1980).

28         Exceptio ns to admini strative record review for
                                     7
1    technica l informatio n or expert explanation make such
2    evidence admissible only for limited purpos es, an d tho se
3
     exceptio ns are narro wly construed and applied.     Lands
4
     Council v. Powell, 395 F. 3d 1019, 1030 (9th Cir. 2005).
5
     “Althoug h [any] fact ual inquiry is to be ‘s earching an d
6
     careful’ the ultimat e standard of review is narro w.        The
7
8    court is not e mpowered to substitute its judgment for

9    that of the agency.”      Asarco, Inc. v. EPA, 616 F.2d 11 53,

10   1159 (9t h Cir. 1980) .    Federal Courts cannot rout inely or
11   liberall y admit new evidence in an APA review cas e,
12
     because “[w]he n a reviewing court considers evidence that
13
     was not before the a gency, it inevitably leads th e
14
     reviewin g court to s ubstitute its judgment for th at of
15
     the agen cy.”     Id. at 1160.
16
17
         3.    Best Ava ilable Scien ce.
18
         What con stitutes the “best” available science
19
     implicat es core agen cy judgment and expertise to which
20
     Congress requires th e courts to defer; a court sh ould be
21
22   especial ly wary of o verturning such a determinati on on

23   review.   Baltimore G as & Elec. Co. v. Nat’l Res. Defense

24   Council, 462 U.S. 87 , 103 (1983) (a court must be “at its
25   most def erenti al” when an agency is “making predictions
26
     within i ts area of s pecial expertise, at the fron tiers of
27
     science” ).     An agenc y has wide discretion to dete rmine
28
                                      8
1    the best scientific and commercial data available for its
2    decision -making.     See S.W . Ct r. for Biological Di versi ty
3
     v. U.S. Bureau of Re clamation, 143 F.3d 515 , 523 n.5 ( 9th
4
     Cir. 199 8).     A decis ion about jeopardy must be ma de based
5
     on the b est science available at the time of the
6
     decision ; the agency cannot wait for or promise f uture
7
8    studies.   See Ctr. for Biological Div ersity v. Rumsfel d,

9    198 F. S upp. 2d 1139 , 1156 (D. Ariz. 2002).

10
                              III. ANALYSIS
11
     A.   Timely A pplication f or Relief.
12
          The Cour t analyzed a nd decided Federal Defendants ’
13
     and Defe ndant Interv enors’ objections to temporar y
14
15   injuncti ve relief     b ased on lack of timelin ess or undu e

16   delay pu rsuant to Ea stern District of California Local

17   Rule 65- 221(b), and overruled those o bjections for the
18   reasons stated in op en court, which are by this r eference
19
     incorpor ated.
20
          The esse ntial reason for hearing the TRO motion o n
21
     shortene d time was t hat unexpected storm events i n
22
23   January and February 2010 have made and are likel y to

24   continue to make ava ilable a potential source of water

25   that cou ld enhance C VP and SWP supply, but which will be
26   “lost” u nless captur ed within days of the storms’
27
     occurren ce.     This ur gency, in view of the harm al leged to
28
                                      9
1    be visit ed upon all Plaintiffs and the human envi ronment,
2    includin g job losses , dislocation of farm workers and
3
     other re sidents, low ering of the tax base, and pr ejudice
4
     to commu nity services and schools; land fallowing and
5
     probable related adv erse effects on air quality;
6
     overdraf ting of grou ndwater with resulting land
7
8    subsiden ce and adver se effects on water quality; as well

9    as likel y rationing of municipal water required f or

10   public u se, ju stify the h earing and decisio n on these
11   motions.
12
         Defendan ts also succ essfully objected to Plaintif fs’
13
     attempt to incorpora te by reference in the TRO mo tion,
14
     all the voluminous p apers filed in support of Pla intiffs’
15
     pending motions for preliminary injun ction.    Based on the
16
17   short ti me for a res ponse (three and one-half days,

18   includin g two weeken d days) afforded to Defendant s and
19   Defendan t-Inte rvenor s, it is unreasonable t o expect
20
     complete and compreh ensive responses to expedited
21
     motions, supported b y complex legal and factual a uthority
22
     that hav e been month s in and for which preparatio n
23
     continue s for a hear ing at least 30 days away.    T he TRO
24
25   motions can be decid ed without detailed considera tion of

26   the argu ments raised only in the preliminary inju nction

27   papers.
28
                                  10
1    B.     Likeliho od of Succes s on the Merits.
2           1.     ESA Clai ms.
3           Plaintif fs’ TRO moti on focuses on the argument th at
4    they are likely to s ucceed on their ESA claim tha t the
5
     2009 Sal monid BiOp i s arbitrary, capricious, and contrary
6
     to law b ecause the b ases provided in the re cord f or RP A
7
     Action I V.2.3 are wi thout factual or scientific
8
     justific ation and/or are not supported by the bes t
9
10   availabl e science. 2              Actio n IV.2.3 limits Ol d and Middl e

11   River (“ OMR”) revers e flows to levels no more neg ative

12   that -2, 500 to -5,000 cub ic feet per second (“cfs ”),
13   dependin g on entrain ment levels.                       2009 Salmonid B iOp at
14
     648.       Th e Action beg ins on January 1, and ends on June 15
15
     or when the average daily water temperature at Mo ssdale
16
     is great er than 72°F (22°C) fo r one week, wh ichever occurs
17
     first.
18
19          Plaintif fs maintain that NMFS based its rationale for

20   imposing this OMR ne gative flow restriction on ou tputs

21   from com puter model runs utilizing the so-called Parti cle
22
     Tracking Model (“PTM ”) which models the flow of i nert
23
     particle s as they move wi thin a flowing bod y of w ater.                                     A
24
     primary source on wh ich the 2009 Salmonid BiOp re lies to
25
            2
               Pl ai nt if fs i nc or po ra te by r ef er en c e a dd it io na l ar gu me nt s f ro m
26   the p re li mi na ry i nj un cti on b ri ef c o nce rn in g th e 20 09 S al mon id B iO p’ s
     eff ec ts a na ly si s an d bas el in e de sc r ipt io n. Ho we ve r, a s dis cu ss ed
27   abo ve , Fe de ra l De fe nd ant s an d De fe n dan t In te rv en or s di d not h av e an
     ade qu at e op po rt un it y to re sp on d to the se i nc or po ra te d ar gum en ts .
28
                                                   11
1    justify application of the PTM, is a 2008 study b y
2    Kimmerer & Nobriga.    See AR 0 0122250.   Plaintiffs poin t
3
     to expre ss disclaime rs in that study which sugges t tha t
4
     PTM is n ot an ideal method for modeling salmonid smolts,
5
     which ha ve “complex behaviors and are strong swim ers.”
6
     AR 00122 263.
7
8        However, Kimmerer an d Nobriga conclude that PTM

9    results “should be i ncluded in the design and ana lysis of

10   future s tudies” of salmon survival rates.     Id.   T he 2009
11   Salmonid BiOp states that its analysis of flows a nd
12
     entrainm ent risk use d the output of PTM simulatio ns along
13
     with oth er evidence from salvage data, as well as mark
14
     and reca pture studie s, to reach conclusions about the
15
     relation ship between reverse flows and entrainmen t.      2009
16
17   Salmonid BiOp at 380-81.    Plaintiffs’ sugge stion that

18   NMFS rel ied exclusiv ely on the PTM studies to jus tify
19   Action I V.2.3 is dir ectly contradicted by Federal
20
     Defendan ts’ expert.   See Doc. 190-4, Stuart Decl., at ¶8,
21
     who desc ribes other factors considered.     On the present
22
     record, without furt her factual devel opment, there is a
23
     scientif ic dispute t hat prevents the Court substi tuting
24
25   its judg ment for a f inding that NMFS’s reliance o n the

26   PTM is u nlawfu l, as it was neither clearly errone ous f or

27   the PTM to hav e been utilized, nor was PTM the ex clusi ve
28
                                   12
1    justific ation for Ac tion IV.2.3.                  Plaintiffs have not yet
2    establis hed a likeli hood of success on their ESA claim. 3
3
4          2.     NEPA Cla im.

5          In the D elta Smelt C onsolidat ed Cases, it has been

6    decided that Reclama tion, as the action agency, v iolated

7    NEPA by failing to f ollow the prescriptions and
8    requirem ents of NEPA in connection with the
9
     implemen tation of th e RPAs prescribed by the 2008 Delta
10
     Smelt Bi Op.       S ee 1:09-cv- 0040 7, Doc. 399 (“Delta Smelt
11
     NEPA Dec ision”).          Fo r reasons stated in the Delta Smelt
12
     NEPA Dec ision and wh ich will be stated in a writt en
13
14   decision to be issue d in connection with the para llel

15   cross mo tions for su mmary judgment on NEPA issues in

16   these Co nsolid ated Salmonid Cases, Reclamation has
17   likewise violated NE PA by its total failure to in any way
18
     comply w ith NEPA in connection with its implement ation of
19
     the 2009 Salmonid Bi Op RPAs.
20
           The Unit ed States’ f ailure to comply with NEPA ha s,
21
22   at the v ery least, preven ted the required r easona ble

23   evaluati on, analysis , “hard look at,” and disclos ure of

24   the cost s of impleme nting the 2009 Salmonid BiOp RPAs to
25   human he alth and saf ety, the human environment, a nd other
26
     environm ents not inh abited by the Listed Species.
27
           3
              Th is i s no t me an t to pr ej ud ge t he dis po si ti on o f th is i ssu e in
28   fut ur e pr oc ee di ng s.
                                               13
1    C.   Irrepara ble Harm.
2         1.   Irrepara ble Harm to Plaintiffs.
3         The dist rict court m ay consider a wide range of
4    evidence of harm in a NEPA injunction proceeding.       Here,
5
     it is un disputed tha t, as a result of storm event s in
6
     late Jan uary 2010, A ction IV.2.3 began to control
7
     operatio ns by way of its automatic imposition of a -50 00
8
     cfs ceil ing on rever se OMR flows.   Plaintiffs est imate
9
10   that for every day t hat Action IV.2.3 controls by

11   imposing a -50 00 cfs limit (as opposed to a more

12   restrict ive limit ba sed in entrainment triggers),
13   Reclamat ion’s pumpin g output is reduced by 500 cf s per
14
     day (or approximatel y 27,000 acre-fee t of water over a
15
     four wee k period).   Doc. 166, Boardman Decl., at ¶16.
16
          DWR’s pu mping output is also reduced when Action
17
     IV.2.3 i s controllin g.   Doc. 78, Erlewine D ecl., at ¶¶ 4-
18
19   5.   Mr. Erlewine est imates that losses to the com bined

20   Projects between Jan uary 20 and January 26, 2010 exceeded

21   90,000 A F, while com bined losses from January 27 through
22
     February 5, 2010 may exceed 100,000 AF.      Id.   Although
23
     Federal Defend ants’ note that “it is difficult to
24
     quantify the magnitu de and duration of this reduc tion
25
     given ch anging river flows, weather conditions, a nd
26

27   possible delta smelt actions,” the United States does not

28   attempt to directly refute Plaintiffs’ figures.       See D oc.
                                 14
1    190-3, M illiga n Decl., at ¶¶ 10-11.   Even a ssuming,
2    arguendo , the estima tes provided by Boardman and Erlewine
3
     are so e xcessive tha t they double actual loss, th e
4
     figures are still si gnificant.
5
         It is un disputed tha t every acre-foot of pu mping that
6
     is foreg one during t his time of year is an acre-foot t hat
7
8    does not reach the S an Luis Reservoir where it ca n be

9    stored f or future de livery to users during times of peak

10   demand l ater in the water year.
11       It is re cognized tha t reduced deliveries caused by
12
     the 2009 Salmonid Bi Op make up only a portion (th e
13
     parties disagree as to the magnitude) of overall delivery
14
     reductio ns, to which severely dry hydrologic cond itions
15
     and othe r legal cons traints have and will continu e to
16
17   contribu te.   However , it is also undi sputed that any l ost

18   pumping capacity dir ectly attributable to the 200 9
19   Salmonid BiOp will c ontribute to and exacerbate t he
20
     currentl y catastroph ic situation faced by Plainti ffs,
21
     whose fa rms, busines ses, water service areas, and
22
     impacted cities and counties, are dependent, some
23
     exclusiv ely, upon CV P and/or SWP water deliveries .     The
24
25   impacts overall of r educed deliveries include

26   irretrie vable resour ce losses (permanent crops, f allowed

27   lands, d estruction o f family and entity farming
28
                                   15
1    business es); social disru ptio n and dislocation; a s well
2    as envir onmental har ms caused by, among other thi ngs,
3
     increase d groundwate r consumption and overdraft, and
4
     possible air quality reduction.
5
6          2.   Potentia l Harm to th e Listed Species.
7          An injun ction should not issue where “enjoining
8    governme nt action al legedly in violation of NEPA might
9
     actually jeopardize natural resources.”      Save Our
10
     Ecosyste ms, 74 7 F.2d 1240 , 1250 n.16 (9th C ir. 1984).
11
     The crux of Plaintif fs’ request for relief is the ir
12
     contenti on that the Listed Species are not now pr esent in
13
14   the vici nity of the pumps in any significant numb ers.        As

15   is the e ndemic condi tion of these cases, the data is

16   sparse a nd usually u nreliable.
17         The gove rnment’s exp ert, Mr. Stuart, estimates th at
18
     for 2009 , 4,416, adu lt winter-run Chi nook salmon
19
     (includi ng 416 hatch ery fish) returned to the str eams and
20
     rivers o f the Centra l Valley to spawn.    Stuart De cl. at
21
22   ¶3.   Thi s represents an increase over the adult

23   escapeme nt estimate of 2,850 fish in the 2008 wat er year.

24   Id.   Bas ed on fecund ity and sex ratio from the 20 08
25   cohort, Mr. Stuart c alculated a 2010 water year j uvenile
26
     producti on estimate (“JPE”) of 1,144,860 juvenile winter-
27
     run Chin ook.   Id.   Applying the BiOp’s 2% I nciden tal T ake
28
                                    16
1    Limit fo r juvenile w inter-run , that limit is 22,897.                               Id.
2           At this time, the go vernment offers no population
3
     estimate s for spring-run juveniles, s teelhe ad smolts o r
4
     green st urgeon that are comparable to the winter- run JPE
5
     estimate s, nor does it provide any quantitative
6
     populati on measure i n locations of concern whatso ever.
7
8           Accordin g to Reclama tion’s own salvage records,

9    approxim ately 920 ta gged winter-run a nd 234 non-tagged

10   winter-r un, for a to tal of 1,154 fish, were salva ged in
11   January 2010.           See Doc. 1 89, Defendant Inte rvenor s’
12
     Request for Judicial Notice, Exhibit 3 (Cen tral V alley
13
     Operatio ns Office Ch inook Salmon Report, January 2010) &
14
     Doc. 189 -11 (Obeji D ecl.).                 This constitutes
15
     approxim ately five p ercent (5%) of the total inci dental
16
17   take lim it, or appro ximately one tenth of one per cent

18   (0.1%) o f the total JPE. 4
19          Mr. Stua rt opines th at approximately 6.8 percent of
20
     all wint er-run salvage normally occurs during Dec ember;
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     13.9 per cent in Janu ary; 25.6 percent in February ; and 50
22
     percent in March; wi th the remaining 2-3 percent
23
24          4
               Pl ai nt if fs ’ co un se l que st io ne d wh e the r wi nt er -r un w er e
     act ua ll y pr es en t in s alv ag e at a ll , su gg es ti ng f al l an d lat e- fa ll
25   run C hi no ok s al mo n ar e t he o nl y sp e cie s th at c ou ld p os si bly b e
     sho wi ng u p as t ag ge d fis h in s al va g e. C ou ns el p ro du ce d no co mp et en t
26   evi de nc e th at R ec la ma tio n’ s re co rd s ar e in co rr ec t. Ne ve rth el es s,
     eve n as su mi ng t ha t al l 1 ,1 54 f is h c oun te d as w in te r- ru n are a ct ua ll y
27   win te r- ru n, t he a mo un t o f ac tu al s a lva ge m ea su re d in t he mo nt h of
     Jan ua ry i s ne gl ig ib le .
28
                                                 17
1    occurrin g during Apr il, May and June.         Stua rt Dec l., a t
2    ¶4 & Exh . 1b.    Rough extrapolating from this info rmation
3
     shows th at, if 1,154 fish constitute 13.9 percent of the
4
     salvage to be expect ed for the remainder of the y ear, the
5
     total sa lvage for th e year would be approximately 8,300
6
     winter-r un juveniles , approximately 36% of and we ll below
7
8    the Take Limit.

9        Less tha n 1% of spri ng-run Chinook will have move d

10   through the Delta by the end of February, while
11   approxim ately 17% of the spring-run p opulat ion will mo ve
12
     through by the end o f March (0.1% in Januar y, 0.2 % in
13
     February , and 17% in March).       Id.     It is hi ghly unlike ly
14
     that Pro ject pumping operations will have any eff ect on
15
     spring-r un through t he month of February.
16
17       There ar e no populat ion estimates for Steelhead, yet

18   Mr. Stua rt estimates that 58% of the steelh ead po pulat ion
19   will hav e moved thro ugh the Delta by the end of F ebruary
20
     as measu red by raw l oss counts at the facility.          This
21
     will ris e to 90% by the end of March.          Id.   He
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     specific ally estimat es 37% of the species will mo ve
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     through the Delta in February.        Id.     Salvage and loss of
24
25   Steelhea d prior to t he January precipitation even t has

26   been ver y low.    See id. at ¶6.

27       Members of the South ern Distinct Population Segme nt
28
                                    18
1    (“SDPS”) of North Am erican Green Sturgeon are pre sent
2    within D elta w aterways throughout the year.     Mr. Stuart
3
     estimate s that appro ximately 16% of Green Sturgeo n
4
     salvage will occur b etween January and the end of March,
5
     with 6% in February followed by 8% in March.       Id. at ¶ 5.
6
     Salvage is typically higher at the SWP during thi s
7
8    period.   Id.   However, there are no finite population

9    data nor any indexed salvage estimates for SDPS G reen

10   Sturgeon and the Cou rt cannot find that the reque sted
11   injuncti ve relief wi ll threaten that species or i ts
12
     critical habitat.
13
          As to th e Southern Resident Killer Whale, w hose
14
     preferre d prey are F raser River salmon, there is no
15
     evidence that the co ntemplated injunctive relief, which
16
17   would op erate, at th e most, only through February , the

18   period d uring which a temporary restraining order is
19   authoriz ed by law (2 8 days) would hav e any effect on the
20
     Orca.
21
22   D.   Balancin g of the Har ms/Public Interest.

23        The thre at of jeopar dy to any of the Listed Speci es

24   by enjoi ning the ope ration of Action IV.2.3 appea rs
25   minimal under the no w-exi stin g conditions.    On th e other
26
     hand, th e harm to Pl aintiffs is substantial and
27
     irrepara ble, because the storm events that are no w
28
                                  19
1    occurrin g and predic ted to occur in the next few days in
2    San Joaq uin/Sacramen to watershed will provide pot ential
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     water su pplies for s torage in the San Luis Reserv oir t hat
4
     cannot b e replicated and will not recur.
5
                           IV.   CONCLUS ION
6
         If Recla mation had p rovided the required NEPA
7
8    analysis , it could h ave analyzed and evaluated no t only

9    the prot ection of th e species and their habitat, but

10   whether less harmful , protective, rea sonable and prude nt
11   alternat ives could h ave been adopted that also pr otect
12
     humans a nd the human environment.        No considerati on was
13
     given to measures th at were not more protective t han
14
     necessar y and which would have afforded additiona l water
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     supply t o water dist ricts, water user s, and communities
16
17   affected by continui ng drought conditions and wat er

18   shortage s.
19       The evid ence establi shes that CVP water not pumpe d
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     for dive rsion to the San Luis Unit flows through the
21
     Delta an d out to the ocean.     To preserve, for benefici al
22
     use, suc h water is i n the public interest, and pr otection
23
     of human health, saf ety and the affected communit ies also
24
25   serves t he public in terest.    The injury to Plaint iffs is

26   irrepara ble and a te mporary restraining order is

27   justifie d as the balance of hardships, at t his po int i n
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                                     20
1    time, ti ps decidedly in Plaintiffs’ favor.    It is
2    signific ant that DWR , the co-operator of th e Proj ects,
3
     does not oppose this relief.
4
         Given Fe deral Defend ants’ failure to abide by NEP A’s
5
     requirem ent that it take a hard look at the broad arra y
6
     of poten tial impacts to the environment (human an d
7
8    otherwis e) caused by implementation of the 2009 B iOp’s

9    RPAs, en joining impl ementation of a measure, RPA Action

10   IV.2.3, that is caus ing irreparable harm to the h uman
11   environm ent served by the Plaintiff water agencies is
12
     justifie d, so long a s jeopardy to species and the ir
13
     critical habitat and /or adverse modification does not
14
     occur.
15
         As time passes and M arch approaches, according to the
16
17   Stuart D eclaration, more significant potential harm to

18   the spec ies may occu r.   The storms are occurring now.
19   That wat er will not otherwise be preserved.     The record
20
     does not clearly pre dict how salvage rates may ch ange if
21
     negative flows excee d -5,000 cfs in February.     As a
22
     result, the temporar y restraining ord er, which sh all
23
     issue sh all initiall y be for a period of fourteen (14)
24
25   days, su bject to a r enewal by Plaintiffs upon an

26   affirmat ive showing that neither the species’ nor their

27   critical habitat wil l be jeopardized by continued
28
                                   21
1    injuncti on of RPA Ac tion IV.2.3.
2        The Cour t in enjoini ng application of RPA Action
3
     IV.2.3, otherwise de fers to the agency’s (Reclama tion)
4
     discreti on to conduc t Project operations.   This T emporary
5
     Restrain ing Order sh all issue without prejudice t o
6
     Defendan ts’ future s howing that conditions have c hange d
7
8    relative to jeopardy to the species and their hab itat.

9        No party has offered comment or evidence on the i ssue

10   of bond.    Because th is case involves the manageme nt of
11   public r esources, wh olly under the control of the action
12
     agency, Reclamation, and because the injunctive relief is
13
     of limit ed duration, Plaintiffs shall post a bond in the
14
     amount o f $5,000 to secure the relief provided by law in
15
     the even t it is dete rmined injunctive relief was
16
17   improvid ently issued .

18                                ORDER
19       1.     The United States Department of the Interior and
20
     its Bure au of Reclam ation and the National Marine and
21
     Fisherie s Service, a nd all those acting for, unde r or in
22
     concert with them, s hall be and are hereby restra ined and
23
     enjoined from implem enting Action IV.2.3 of the t he 20 09
24
25   Salmonid Biological Opinion RPA;

26       2.     Plai ntiffs shall post a bond in the amount of

27   $5,000;
28
                                   22
1        3.   This Tempo rary Restraining Order is issued
2    without prejudice to Defendants’ show ing changed
3
     conditio ns that thre aten jeopardy to the species and
4
     their cr itical habit at.
5
6    SO ORDER ED
     Dated: F ebruary 5, 2 010
7
                                    /s/ O liver W. Wanger
8                                    Oliver W. Wang er
                                 United States Distri ct Judge
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