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;
21
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
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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
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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
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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
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will ris e to 90% by the end of March. Id. He
22
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
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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
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18
1 (“SDPS”) of North Am erican Green Sturgeon are pre sent
2 within D elta w aterways throughout the year. Mr. Stuart
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estimate s that appro ximately 16% of Green Sturgeo n
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salvage will occur b etween January and the end of March,
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with 6% in February followed by 8% in March. Id. at ¶ 5.
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Salvage is typically higher at the SWP during thi s
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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
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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
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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
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cannot b e replicated and will not recur.
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IV. CONCLUS ION
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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
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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
20
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
28
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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