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

Filing 457

ORDER Granting and Denying Cross Motions for Summary Judgment on NEPA Issues, signed by Judge Oliver W. Wanger on 12/2/2009. (Gaumnitz, R)

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DIEPENBROCK HARRISON
A PROFESSIONAL CORPORATION

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ­ FRESNO DIVISION 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 WIDLIFE SERVICE et al. (Case No. 1:09-cv480) METROPOLITAN WATER DISTRICT v. UNITED STATES FISH AND 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)

1:09-cv-00407-OWW-GSA 1:09-cv-00422-OWW-GSA 1:09-cv-00631-OWW-GSA 1:09-cv-00892-OWW-GSA PARTIALLY CONSOLIDATED WITH: 1:09-cv-00480-OWW-GSA ORDER GRANTING AND DENYING CROSS-MOTIONS FOR SUMMARY JUDGMENT ON NEPA ISSUES Date: October 2, 2009 Time: 10:00 a.m. Courtroom: 3

Judge: Honorable Oliver W. Wanger

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ORDER GRANTING AND DENYING CROSS-MOTIONS FOR SUMMARY JUDGMENT ON NEPA ISSUES

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DIEPENBROCK HARRISON
A PROFESSIONAL CORPORATION

ORDER The cross-motions for summary judgment on National Environmental Policy Act ("NEPA"; 42 U.S.C. § 4321, et seq.) issues filed by Plaintiffs San Luis & Delta-Mendota Water Authority and Westlands Water District ("San Luis Plaintiffs"), Plaintiff State Water Contractors, and Plaintiff Metropolitan Water District of Southern California ("MWD") on the one hand, and Defendant-Intervenors The Bay Institute and Natural Resources Defense Council on the other, came on regularly for hearing on October 2, 2009. San Luis Plaintiffs were represented by Kronick, Moskovitz, Tiedemann & Girard by Daniel J. O'Hanlon, Esq., and Diepenbrock Harrison, by Eileen M. Diepenbrock, Esq. State Water Contractors was

represented by Best, Best & Krieger, by Gregory K. Wilkinson, Esq. MWD was represented by Morrison & Foerster, by Christopher J. Carr, Esq. Federal Defendants, including the Secretary of the Interior Kenneth Lee Salazar, the United States Department of the Interior, U.S. Fish and Wildlife Service ("FWS"), Acting director of the USFWS Rowan Gould, Regional Director of USFWS Ren Lohoefenor, United States Bureau of Reclamation ("Reclamation"), Acting Commissioner of Reclamation J. William McDonald, and Regional Director Donald Glaser were represented by William J. Shapiro, Trial Attorney, Natural Resources Section, and James A. Maysonett, Esq., Trial Attorney, Wildlife and Marine Resources Section, U.S. Department of Justice. Defendant-Intervenors The Bay Institute and Natural Resources Defense Council were represented by Earthjustice, Trent W. Orr, Esq., and Natural Resources Defense Council, Katherine Poole, Esq. The cross-motions for summary judgment at issue relate to the December 15, 2008, biological opinion regarding the effects of the proposed operations of the federal Central Valley Project and State Water Project on the delta smelt and its critical habitat issued by FWS ("2008 BiOp"). The Court has fully considered the briefs and evidence filed in support of Plaintiffs' Motion for Summary Adjudication on NEPA Issues ("Plaintiffs' NEPA MSJ"), as well as the briefs and evidence filed in support of Defendant-Intervenors' Motion for Summary Judgment on Early Disposition Claims ("Defendant-Intervenors' NEPA MSJ"). The Court also has fully
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-1ORDER GRANTING AND DENYING CROSS-MOTIONS FOR SUMMARY JUDGMENT ON NEPA ISSUES

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DIEPENBROCK HARRISON
A PROFESSIONAL CORPORATION

considered the briefs and evidence filed in opposition to these motions filed by Plaintiffs, Federal Defendants, and Defendant-Intervenors. The Court heard oral argument on the motions on October 2, 2009, and took the matter under submission at the conclusion of the hearing. The Court subsequently solicited supplemental briefings from the parties and the Court has also fully considered those briefs. On November 13, 2009, the Court filed its "Memorandum Decision Re Cross-Motions for Summary Judgment on NEPA Issues" ("Memorandum Decision"; Doc. 399). The November 13, 2009, Memorandum Decision constitutes the statement of reasons for the Court's ruling. Accordingly, and as stated more fully in its November 13, 2009, Memorandum Decision, the Court now enters the following order: IT IS HEREBY ORDERED that Plaintiffs are entitled to summary judgment on their claim against the United States Bureau of Reclamation ("Reclamation") and Secretary of the Interior, Kenneth Lee Salazar, that Reclamation violated NEPA by failing to perform any NEPA analysis prior to provisionally adopting and implementing the 2008 BiOp and its reasonable and prudent alternative. Therefore, IT IS ORDERED that Plaintiffs' NEPA MSJ is hereby GRANTED in part.

Dated: _December2, 2009 __/s/ OLIVER W. WANGER__________ HONORABLE OLIVER W. WANGER UNITED STATES DISTRICT JUDGE

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-2ORDER GRANTING AND DENYING CROSS-MOTIONS FOR SUMMARY JUDGMENT ON NEPA ISSUES

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