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

Filing 407

ORDER granting DWR's Motion to Allow Extra record evidence to explain technical terms and complex subject matter signed by Judge Oliver W. Wanger on 11/17/2009. (Kusamura, W)

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Order prepared and submitted by: EDMUND G. BROWN JR., State Bar No. 37100 Attorney General of California ROBERT W. BYRNE, State Bar No. 213155 Supervising Deputy Attorney General CLIFFORD T. LEE, State Bar No. 74687 CECILIA L. DENNIS, State Bar No. 201997 MICHAEL M. EDSON, State Bar No. 177858 ALLISON GOLDSMITH, State Bar No. 238263 Deputy Attorneys General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] Attorneys for Real Parties in Interest California Department of Water Resources and Lester Snow, Director, California Department of Water Resources

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

THE DELTA SMELT CASES 1:09-cv-407 OWW ______________________________________ Consolidated With: SAN LUIS DELTA-MENDOTA WATER Case No. 1:09-cv-422 OWW AUTHORITY, et al. v. SALAZAR, et al. Case No. 1:09-cv-480 OWW ______________________________________ Case No. 1:09-cv-631 OWW Case No. 1:09-cv-892 OWW STATE WATER CONTRACTORS v. SALAZAR, et al. ______________________________________ ORDER granting DWR's MOTION TO COALITION FOR A SUSTAINABLE ALLOW Extra record evidence to DELTA, et al. v. UNITED STATES FISH explain technical terms and complex AND WILDLIFE SERVICE, et al. subject matter ______________________________________ METROPOLITAN WATER DISTRICT v. UNITED STATES FISH AND WILDLIFE SERVICE, et al. ______________________________________ STEWART & JASPER ORCHARDS, et al. v. UNITED STATES FISH AND WILDLIFE SERVICE, et al. Date: Time: Ctrm: Judge: October 19, 2009 11:30 a.m. 3 Hon. Oliver W. Wanger

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ORDER GRANTING DWR's MOTION TO ALLOW EXTRA RECORD EVIDENCETO EXPLAIN TECHNICAL TERMS AND COMPLEX SUBJECT MATTER (1:09-cv-407 OWW )

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On October 19, 2009, the Court heard the Motion to Allow Extra Record Evidence to Explain Technical Terms and Complex Subject Matter filed by California Department of Water Resources and its Director, Lester Snow (collectively "DWR") (Doc. Nos. 156; 345); Having fully considered the briefs and oral arguments submitted by the parties, and good cause appearing therefore, THE COURT HEREBY ORDERS: DWR's Motion to Allow Extra Record Evidence to Explain Technical Terms and Complex Subject Matter Motion is GRANTED with respect to its request to present testimony by a DWR expert concerning DWR's CALSIM II Simulation Modeling, because DWR made a threshold showing of the materiality of such testimony. The Court will allow a DWR expert to file a declaration explaining why comparing the historical data to CALSIM II -modeled data is not a scientifically acceptable practice (not "best available science"), and thus why the Service's comparison of historic data with modeled data resulted in an inaccurate determination of the change in X2 attributable to future project operations. To establish that the Service's comparison of data modeled by CALSIM II with actual historic data resulted in a materially flawed analysis, the Court will allow DWR's expert to explain the CALSIM II modeling program, and explain the extent to which the modeling data can be appropriately used to assess the effect of future project operations on X2 and delta smelt habitat. This order is without prejudice to the Defendants and Defendant-Intervenors' ability to object to the admissibility of the testimony in the declaration. Subject to further order of the Court, the declaration shall be filed and served on or before November 13, 2009.

Dated: November 17, 2009

/s/ OLIVER W. WANGER OLIVER W. WANGER U.S. District Court Judge

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ORDER GRANTING DWR's MOTION TO ALLOW EXTRA RECORD EVIDENCETO EXPLAIN TECHNICAL TERMS AND COMPLEX SUBJECT MATTER (1:09-cv-407 OWW )

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