San Luis & Delta-Mendota Water Authority et al v. Salazar et al

Filing 388

ORDER RE: Extra-Record Declarations by Dr. Bryan Manly and Dr. Ray Hilborn, signed by Judge Oliver W. Wanger on 11/10/2009. (Kusamura, W)

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KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD
ATTORN E Y S AT LAW S A C R A M EN T O

DANIEL J. O'HANLON, State Bar No. 122380 K. ERIC ADAIR, State Bar No. 150650 HANSPETER WALTER, State Bar No. 244847 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor Sacramento, CA 95814 Telephone: [phone] Facsimile: [phone] EILEEN M. DIEPENBROCK, State Bar No. 119254 JON D. RUBIN, State Bar No. 196944 JONATHAN R. MARZ, State Bar No. 221188 DIEPENBROCK HARRISON 400 Capitol Mall, 18th Floor Sacramento, CA 95814 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs SAN LUIS & DELTA-MENDOTA WATER AUTHORITY; WESTLANDS WATER DISTRICT

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

THE DELTA SMELT CASES SAN LUIS & DELTA-MENDOTA WATER AUTHORITY, et al. v. SALAZAR, et al. (Case No. 1:09-cv-407) STATE WATER CONTRACTORS v. SALAZAR, et al. (Case No. 1:09-cv-422) COALITION FOR A SUSTAINABLE DELTA, et al. v. UNITED STATES FISH AND WILDLIFE SERVICE, et al. (Case No. 1:09-cv-480) METROPOLITAN WATER DISTRICT v. UNITED STATES FISH & WILDLIFE SERVICE, et al. (Case No. 1:09-cv-631) STEWART & JASPER ORCHARDS, et al. v. UNITED STATES FISH AND WILDLIFE SERVICE, et al. Case No. 1:09-cv-892)

CASE NO. 1:09-cv-407-OWW-DLB 1:09-cv-422-OWW-DLB 1:09-cv-631-OWW-DLB 1:09-cv-892-OWW-GSA PARTIALLY CONSOLIDATED WITH: 1:09-cv-480-OWW-GSA ORDER REGARDING EXTRA-RECORD DECLARATIONS BY DR. BRYAN MANLY AND DR. RAY HILBORN

926573.1

-1Order Regarding Extra-Record Declarations by Dr. Bryan Manly and Dr. Ray Hilborn

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KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD
ATTORN E Y S AT LAW S A C R A M EN T O

ORDER On October 19, 2009, the Court heard a request by Plaintiffs San Luis & Delta-Mendota Water Authority and Westlands Water District (together, "San Luis Plaintiffs") to submit extrarecord declarations by Dr. Bryan Manly and Dr. Ray Hilborn in support of the San Luis Plaintiffs' anticipated motion for summary judgment. (Docs. 159, 319, 346.) The Court having fully considered the briefs, evidence, and oral argument in support of and in opposition to the motion, and good cause appearing therefor, the motion by the San Luis Plaintiffs for leave to submit extra-record declarations by Dr. Bryan Manly and Dr. Ray Hilborn is hereby GRANTED in part and DENIED in part, and the Court further ORDERS as follows: 1. Dr. Manly's declaration may be submitted to explain: (a) that the Fish and Wildlife

Service did not rely on the best available scientific data or generally accepted scientific standards and methods to reach its conclusion in the Biological Opinion that in some years, i.e., sporadically, the entrainment of delta smelt at Central Valley Project and State Water Project export pumps has a population level effect; and (b) that the conclusion in the Biological Opinion that entrainment of Pseudodiaptomus forbesi by the Central Valley Project and State Water Project exports pumps in the months from June through September has significantly affected the food supply available to delta smelt in these months is contrary to the best available scientific data and contrary to generally accepted scientific standards and methods. Dr. Manly's testimony shall be limited to these issues. 2. Dr. Hilborn's declaration may be submitted to explain: (a) that the appropriate and

generally accepted scientific method within the discipline of fisheries sciences to estimate the effects of Central Valley Project and State Water Project operations on delta smelt population size would be to use a spawner-recruit model or a stage by stage life history model; and (b) that the Fish and Wildlife Service failed to use such models here and this failure is not in accordance with generally accepted scientific standards and methods. Dr. Hilborn's testimony shall be limited to these issues. 3. This order is without prejudice to the Defendants and Defendant-Intervenors'

ability to object to the admissibility of the testimony in each declaration. 926573.1 -2Order Regarding Extra-Record Declarations by Dr. Bryan Manly and Dr. Ray Hilborn

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KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD
ATTORN E Y S AT LAW S A C R A M EN T O

4.

Subject to further order of the Court, each declaration shall be filed and served on

or before November 13, 2009. DATED: _November 10, 2009

/s/ OLIVER W. WANGER OLIVER W. WANGER U.S. DISTRICT COURT JUDGE Attorneys for Plaintiffs San Luis & Delta-Mendota Water Authority and Westlands Water District

926573.1

-3Order Regarding Extra-Record Declarations by Dr. Bryan Manly and Dr. Ray Hilborn

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