San Luis & Delta-Mendota Water Authority et al v. Salazar et al
Filing
875
MEMORANDUM DECISION RE FEDERAL DEFENDANTS MOTION TO AMEND THE JUDGMENT OR IN THE ALTERNATIVE FOR A STAY PENDING APPEAL 856 , signed by Judge Oliver W. Wanger on 05/04/2011. (Coffman, Lisa)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DELTA SMELT CONSOLIDATED CASES
SAN LUIS & DELTA-MENDOTA WATER
AUTHORITY, et al. v. SALAZAR, et
al. (1:09-cv-00407 OWW DLB)
1:09-CV-00407 OWW DLB
1:09-cv-00480-OWW-GSA
1:09-cv-00422-OWW-GSA
1:09-cv-00631-OWW-DLB
1:09-cv-00892-OWW-DLB
STATE WATER CONTRACTORS v. SALAZAR,
et al. (1:09-cv-00480-OWW-GSA)
Partially consolidated with:
1:09-cv-01201-OWW-DLB
COALITION FOR A SUSTAINABLE DELTA,
et al. v. UNITED STATES FISH AND
WILDLIFE SERVICE, et al. (1:09-cv00422-OWW-GSA)
MEMORANDUM DECISION RE
FEDERAL DEFENDANTS’ MOTION
TO AMEND THE JUDGMENT OR IN
THE ALTERNATIVE FOR A STAY
PENDING APPEAL (DOC. 856)
METROPOLITAN WATER DISTRICT v.
UNITED STATES FISH AND WILDLIFE
SERVICE, et al. (1:09-cv-00631-OWWDLB)
STEWART & JASPER ORCHARDS, et al.
v. UNITED STATES FISH AND WILDLIFE
SERVICE (1:09-cv-00892-OWW-DLB)
FAMILY FARM ALLIANCE v. SALAZAR, et
al. (1:09-CV-01201-OWW-DLB)
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I.
INTRODUCTION
On March 29, 2011, Final Judgment was entered on all
remaining claims in this case.
The 2008 Delta Smelt Biological
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Opinion (“BiOp”), its Reasonable and Prudent Alternative (“RPA”),
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and Reclamation’s December 2008 Provisional Acceptance of the RPA
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were remanded without vacatur with the following instructions:
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1.
USFWS shall complete by October 1, 2011 a new
delta smelt Biological Opinion consistent with the
Court’s December 14, 2010 Memorandum Opinion, with the
exception of making express written findings in either
the BiOp or the Administrative Record as to the first
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three factors of the four-part regulatory definition of
an RPA in 50 C.F.R. § 402.02, which shall be completed
by November 30, 2011.
2.
Reclamation shall complete review of the RPA in
accordance with NEPA by December 15, 2011.
Doc. 851 at 3.
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On April 8, 2011, Federal Defendants moved to alter or amend
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the judgment, or in the alternative for a stay pending appeal, on
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the ground that the new BiOp, RPA, and NEPA compliance could not
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be completed within the time limits prescribed.
Doc. 856.
Federal Defendants filed a proposed amended judgment, which
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alters the existing deadlines to extend completion of the entire
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remand process 30 months from October 1, 2011.
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Federal Defendants also filed the Declarations of Susan Fry and
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Jennifer Norris.
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Water Authority and Westlands Water District; Metropolitan Water
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District of Southern California; State Water Contractors;
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Docs. 857 & 858.
Doc. 856-2.
San Luis & Delta Mendota
Coalition for a Sustainable Delta and Kern County Water Agency;
Stewart & Jasper Orchards, Arroyo Farms, LLC, and King Pistachio
Grove; and the Family Farm Alliance (collectively, “Plaintiffs”)
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oppose the specific terms of Federal Defendants’ proposed amended
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judgment, instead proposing their own 20-month remand schedule.
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Docs. 864 & 864-1.
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James Snow and Susan Hootkins.
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Plaintiffs also filed the declarations of
Docs. 866 & 867.
Plaintiff-in-
Intervention, the California Department of Water Resources
(“DWR”), partially joins Plaintiffs’ opposition, and does not
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oppose a remand lasting between 20 and 30 months.
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Federal Defendants replied.
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filed an objection to Plaintiffs’ request to now set an interim
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Doc. 868.
remedies hearing in August 2011.
Doc. 865.
Defendant Intervenors
Doc. 869.
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Federal Defendants’ request to have their motion heard on
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shortened time was granted.
See Docs. 859, 860.
A hearing was
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originally set for April 22, 2011, but was continued by agreement
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of the parties to April 27, 2011, Doc. 862, when the matter was
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heard.
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II.
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A.
DISCUSSION
Motion to Alter/Amend Judgment.
1.
Standard.
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A motion to alter or amend the judgment is timely if filed
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within twenty-eight days of the entry of judgment. Fed. R. Civ.
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P. 59(e).
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considering a motion to amend a judgment.”
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N. Santa Fe R.R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003) (citing
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The district court “has considerable discretion when
Fed. R. Civ. P. 59(e)).
Turner v. Burlington
Although Rule 59(e) itself does not
state the grounds on which relief may be granted, the Court of
Appeals has established that altering or amending the judgment is
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proper where “the district court: (1) is presented with newly
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discovered evidence, (2) committed clear error or the initial
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decision was manifestly unjust, or (3) if there is an intervening
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change in controlling law.”
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Circuit City Stores. v. Mantor, 417
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F.3d 1060, 1064 (9th Cir. 2005).
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matter jurisdiction to consider a timely motion under Rule 59(e)
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even where such motion is filed subsequent to a notice of appeal.
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The district court has subject
Tripati v. Henman, 845 F.2d 205 (9th Cir. 1988).
The filing of a
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Rule 59(e) motion suspends the operation of a notice of appeal
until it is resolved, at which point the notice of appeal becomes
See Fed. R. App. P. 4(A)(4)(B)(i).
effective.
2.
Application.
Federal Defendants maintain that it is not feasible to
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complete by the end of 2011 a new BiOp, RPA analysis, and NEPA
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review to satisfy the December 14, 2010 memorandum decision
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(“December 2010 MSJ Decision”).
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that no party proposed such a compressed schedule.
Federal Defendants emphasize
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a)
Interpretation of the December 2010 MSJ Decision.
Federal Defendants’ motion to amend the judgment is premised
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on their interpretation of the December 2010 MSJ Decision.
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According to Federal Defendants’ interpretation, the Court has
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ordered the completion of several “time- and resource-intensive
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harm and feasibility analyses,” including:
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(a) developing “alternatives” to the Reasonable and
Prudent Alternative that the Service deems necessary to
avoid jeopardy and adverse modification; (b) measuring
and addressing water supply needs beyond the species;
(c) accounting for competing demands for water from the
Projects, including but not limited to the requirements
of Cal. Water Code § 275, Cal. Const. art. X, § 2, and
Section 8 of the Reclamation Act of 1902, 43 U.S.C. §
383; and (d) making express written findings in either
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1
the BiOp or the Administrative Record as to the first
three factors of the four-part regulatory definition of
an RPA in 50 C.F.R. § 402.02.
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Doc. 856-1 at 6.
Subparagraph (a) accurately reflects the prior
holding that Reclamation violated NEPA by failing to effect any
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NEPA compliance prior to adopting and implementing the 2008 Smelt
BiOp.
See generally Doc. 399.
Subparagraph (d) accurately
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recognizes the ruling that FWS acted unlawfully by failing to
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include written findings in either the BiOp or the AR concerning
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the first three factors of the four-part regulatory definition of
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an RPA in 50 C.F.R. § 402.02.
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As to subparagraphs (b) and (c), Federal Defendants’ offer
selectively incomplete portions of the December 2010 MSJ Decision
that do not accurately reflect the entirety of the language or
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the intent of the decision.
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Decision cited by Federal Defendants in support of these
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additional “requirements” are found at pages 96, 194 n.47, 195,
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200, and 218-19.
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lengthy discussion of FWS’s failure to explain why it compared
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The relevant passages from the
The quoted language from page 96 follows a
data from two non-comparable models to quantitatively justify
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remedial measures designed to address a shift of X2 purportedly
caused by Project operations:
This is of particular concern because DWR, a joint
operator of the projects communicated its scientific
and operational concerns based on known available
science. DWR and Reclamation have legal obligations to
allocate water supply reasonably and responsibly, not
solely to save the species. As discussed [] below at
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Part VII.B, FWS’s focus on its responsibilities to the
species appears to have caused it to ignore its own
regulations’ obligations to consider impacts to the
overall water supply and additional uses. The potential
impacts of inaccurate quantitative analyses in the BiOp
cannot be understated.
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Doc. 757 at 96 (emphasis added).
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intended to and did not order that FWS balance economic and water
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supply costs against those of the species.
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The emphasized text was not
Rather, the agency
acted unlawfully because it failed to adequately explain its
decision to compare non-comparable data sets as part of its
quantitative justification for remedial actions.
The agency did
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not articulate or employ an “institutionalized caution” rationale
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to justify setting specific RPA targets at levels more protective
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than those which are absolutely necessary.
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Decision did not address whether it would have been appropriate
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The December 2010 MSJ
to incorporate such a rationale into the justification for those
remedial actions.
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Federal Defendants cite portions of the December 2010 MSJ
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Decision focusing on the specific requirements of 50 C.F.R. §
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402.02, including the requirement that any RPA be consistent with
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the intended purpose of the action:
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The specific requirements of the X2 action are another
example of how the record fails to address the
“consistency with the intended purpose of the action,”
and is “within the scope of the ... agency’s authority
and jurisdiction.” 50 C.F.R. § 402.02. Because of
competing demands for water from the Projects, combined
with a limited supply, one purpose of the Projects is
to ensure that that water use and allocation be
carefully managed, and to also ensure that water is put
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to a beneficial use and not wasted. This purpose is, in
fact, required by California law, Cal. Const. art. X, §
2; Cal. Water Code § 275, and imposed upon federal
project operations by virtue of Section 8 of the
Reclamation act of 1902. 43 U.S.C. § 383. The Projects
will have to expend hundreds of thousands of acre feet
of water to maintain X2 as far seaward as Component 3
requires. Miller Decl., Doc. 400, at ¶¶ 67-73. Less
water would be required if X2 did not need to be pushed
so far downstream–water would then be available for
other uses. Yet nothing in the BiOp or the record
explains why it is essential that X2 be moved seaward
to the degree required by Component 3 in order to
protect the smelt and its habitat.
Doc. 757 at 194 n.47.
Page 195 continues:
Even if, arguendo, the RPA is consistent with the
multiple purposes of the action and the agency’s
statutory authority, and is economically and
technologically feasible to implement, the APA
requires, and the public is entitled under the law to
receive, some exposition in the record of why the
agency concluded (if it did so at all) that all four
regulatory requirements for a valid RPA were satisfied.
The RPA Actions manifestly interdict the water supply
for domestic human consumption and agricultural use for
over twenty million people who depend on the Projects
for their water supply. “Trust us” is not acceptable.
FWS has shown no inclination to fully and honestly
address water supply needs beyond the species, despite
the fact that its own regulation requires such
consideration.
How the appropriation of water for the RPA Actions, to
the exclusion of implementing less harmful
alternatives, is required for species survival is not
explained. The appropriate remedy for such a failure to
explain is remand to the agency.
While the “institutionalized caution” interpretation of the ESA
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might justify some movement of X2 seaward of FWS’s best estimate
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of what is “necessary” for the species survival, the APA requires
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FWS to justify its actions with the best available science.
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The
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failures identified in the BiOp do not concern application of the
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precautionary principle, because FWS does not articulate
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“institutionalized caution” or the precautionary principle as
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rationales for its specific actions.
Nor does the December 2010
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MSJ Decision prevent FWS from articulating a basis for its
actions that includes a precautionary approach.
Rather, the
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December 2010 MSJ Decision points out that FWS entirely failed to
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comply with its own regulatory requirements in 50 C.F.R. §
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402.02, compliance with which should have triggered evaluation of
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whether or not moving X2 downstream to the extent required by the
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RPA was justified.
The significant impacts upon the water supply
serve to emphasize the practical consequences of FWS’s failure.
The exact meaning and scope of the requirements in section 402.02
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that FWS ensure that the RPA “can be implemented in a manner
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consistent with the intended purpose of the action ... can be
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implemented consistent with the scope of the Federal agency's
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legal authority and jurisdiction ... [and] is economically and
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technologically feasible,” was not decided by the December 2010
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MSJ Decision.1
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Federal Defendants also cite pages 199-200 of the December
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2010 MSJ Decision, presumably to emphasize the following
paragraph:
Stewart & Jasper’s contention that FWS’s reserved to
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These issues are more explicitly raised by the pending cross motions in the
Consolidated Salmonid Cases, which have yet to be decided.
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itself “an ongoing power of oversight, as well as a
power to dictate new and different pumping
restrictions,” assumes that neither Reclamation, as
action agency, nor DWR, as co-operator, have the
ability to not comply with the RPA. Doc. 697 at 87.
Reclamation is not legally compelled to blindly follow
FWS’s pronouncements. Reclamation retains the authority
to reject the RPA at any time, subject to its
obligation to reinitiate consultation. Although FWS has
not yet demonstrated a willingness or capability to
protect interests other than the species, it cannot be
assumed that Reclamation will not lawfully discharge
its statutory water supply responsibilities.
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(Emphasis added.)
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Federal Defendants at all.
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This comment imposes no practical burdens upon
Finally, Federal Defendants cite pages 218-219 from the
Conclusion:
It cannot be disputed that the law entitles the delta
smelt to ESA protection. It is significant that the cooperator of the Projects, DWR, in its endeavors to
protect a substantial part of the State’s water supply,
opposes as unjustified and based on bad science some of
the RPA Actions. It is equally significant that despite
the harm visited on California water users, FWS has
failed to provide lawful explanations for the apparent
overappropriation of project water supplies for species
protection. In view of the legislative failure to
provide the means to assure an adequate water supply
for both the humans and the species dependent on the
Delta, the public cannot afford sloppy science and unidirectional prescriptions that ignore California’s
water needs. A court is bound by the law. Resource
allocation and establishing legislative priorities
protecting the environment are the prerogatives of
other branches of government. The law alone cannot
afford protection to all the competing interests at
stake in these cases.
This passage summarizes earlier findings and imposes no further
burdens on Federal Defendants.
Federal Defendants’ argument is that the December 2010 MSJ
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1
Decision requires FWS to “balance” the needs of the species
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against economic interest.
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Court did hold was that the additional analyses required on
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No such requirement exists.
remand by both agencies are substantial.
What the
The BiOp and its RPA
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are unlawful under the ESA and need to be remanded.
Further, the
action agency’s failure to comply with NEPA’s requirements
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requires an analysis of water supply impacts that demands
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cooperation of Project operators and the action agency.
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b)
Justification for 30-Month Proposed Schedule.
Federal Defendants now propose that the best way to complete
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remand is to permit FWS to develop the required analyses in
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consultation with Reclamation and concurrently with Reclamation’s
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NEPA process.
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agency, not FWS, has the expertise to evaluate water supply
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impacts and related effects.
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It is not disputed that Reclamation, the action
Federal Defendants assert that
concurrent preparation of the revised BiOp and the NEPA document
will enhance the quality of the end product.
Specifically,
Defendants now propose that remand, including certification of a
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new BiOp, completion of NEPA analysis, and satisfaction of all
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the other requirements of the Court’s December 14, 2010
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Memorandum Opinion, will take until May 1, 2014.
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Federal Defendants’ rationale for this deadline is as follows:
A draft BiOp and RPA can be completed by October 1, 2011;
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Completion of an EIS is expected to take 30 months following
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formulation of the draft RPA.
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Declaration.
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See generally Fry
Doc. 857.
The procedures of NEPA are rigorous:
The Agency must
develop a list of issues to be analyzed and submit those to
the public for “scoping” comments, which usually involves
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numerous public meetings.
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draft and publish the NOI within 9 months of receiving the
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draft RPA.
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Then, the agency must complete a Draft EIS and submit that
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Reclamation anticipates it could
Id. at ¶ 11.
to other federal agencies and the public comment.
Even for
far less complex projects, this can take years to complete.
Reclamation anticipates issuing a draft EIS approximately 17
Id. at ¶ 13.
15
months after receiving the draft RPA.
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The agency must then respond to any comments by modifying
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alternatives, developing and evaluating new alternatives,
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correcting errors and or explaining why comments do not
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warrant further response.
40 C.F.R. § 1503.4.
Only then
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may an agency prepare a final EIS.
40 C.F.R. § 1502.9.
NEPA then requires a 30-90 day period for additional public
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comment.
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Finally, NEPA requires Reclamation to issue a final record
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of decision (“ROD”) stating the agency’s decision,
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identifying alternatives considered and stating all
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40 C.F.R. § 1506.10(b)-(d).
practicable means to avoid or minimize environmental harm.
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Reclamation anticipates it could issue a ROD no earlier than
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30 months from the issuance of the RPA.
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Federal Defendants proposed schedule has FWS producing a
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Fry Decl. at ¶ 14.
draft BiOp consistent with the December 2010 MSJ Decision by
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October 1, 2011, and provides that FWS and Reclamation will
cooperate during the NEPA review process to produce the
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information necessary to complete the remaining tasks, including
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preparation of additional analyses required by 50 C.F.R. § 402.02
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and NEPA review.
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its NEPA review, FWS will complete the remaining tasks.
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Within one month after Reclamation completes
Plaintiffs argue that 30 months is unreasonable and present
the declaration of Susan G. Hootkins, a senior consultant at
ENTRIX, an environmental consulting firm with considerable NEPA
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compliance experience, including on projects for Reclamation.
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She states that Federal Defendants’ timeframe is “not aggressive
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and provides more time than legally or reasonably necessary ...
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principally because it includes over estimates of the time needed
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to complete some of the basic steps in the NEPA process.”
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867 at ¶ 7.
She opines that 10 months can reasonably be shaved
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Doc.
off the 30 month estimate.
Id. at ¶ 16.2
Plaintiffs also cite
numerous cases in which the NEPA process was expedited by a court
order.
See Doc. 864 at 13.
It is unquestioned that all parties
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Federal Defendants correctly point out that Plaintiffs’ alternative 20-month
schedule is not properly before the court because Plaintiffs did not
separately move to amend the judgment.
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and the water-consuming public urgently require and deserve some
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degree of predictability.
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uncompleted, the greater the dislocation to all.
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The longer the work remains
The agencies, not the Court, are in the best position to
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determine how long it will take them to complete these required
processes.
A court cannot tell the agencies how to allocate
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resources on remand, nor how to accomplish the required tasks.
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Plaintiffs’ declarant is unfamiliar with agency operations,
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budgets, staffing, expertise and resources.
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own declarant, Susan Fry, is familiar with these matters and has
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Federal Defendants’
opined that a 30-month schedule is the absolute minimum time
necessary to complete all the work.
She anticipates considerable
public interest in these issues, which will preclude the
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accelerated timetable Plaintiffs recommend.
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declarant also assumes Reclamation could begin the NEPA process
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on May 2, which is not possible given the condition precedent,
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issuance of a draft BiOp and RPA, will not be completed until
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October 1, 2011.
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Plaintiffs’
Federal Defendants have demonstrated that the existing Final
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Judgment would cause manifest injustice, as it would require FWS
and Reclamation to complete their duties on remand in a time
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frame impossible for them to achieve.
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schedule delays completion of a new BiOp, which extends
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uncertainty and increases the likelihood that court intervention
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13
Federal Defendants’
1
in annual water allocations will be necessary.
2
Plaintiffs’ suggestion that a deadline of December 2012 should be
3
chosen with the understanding that Federal Defendants could apply
4
However,
for an extension if needed does not permit Federal Defendants to
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proceed with remand in an orderly manner.
Federal Defendants’ motion to amend the judgment is GRANTED,
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but the deadline will be modified to require completion of a
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final BiOp, RPA, and NEPA review by December 1, 2013.
10
approximately 32 months from now, 36 months following the
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December 2010 MSJ Decision, and prior to the water season in
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which supply restrictions have historically been imposed to
protect the species.
B.
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This is
Motion for Stay Pending Appeal.
As an alternative to an amended judgment, Federal Defendants
move for a stay pending appeal.
Federal Defendants represented
in open court that they do not prefer and would withdraw their
motion for a stay if the motion to amend is granted to permit a
complete and lawful BiOp, RPA, and NEPA process to be
22
accomplished.
23
motion for a stay.
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C.
It is unnecessary to address the alternative
Additional Requests for Correction.3
3
These additional requests are to correct the Final Judgment to accurately
reflect success on the merits. A court may correct a clerical mistake of this
nature on its own, with or without notice. See Fed. R. Civ. P. 60. Normally,
leave of the appellate court would be required if the correction is made while
14
1
1.
2
State Water Contractors (“SWC”) also request that Paragraph
State Water Contractors’ Request.
3
C of the Final Judgment be amended to reflect that they prevailed
4
on their Fifth claim for relief, which alleged among other things
5
that Federal Defendants violated the Endangered Species Act
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7
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(“ESA”) and 50 C.F.R. § 402.02 by failing to determine whether
the RPA could be implemented consistently with the scope of DWR’s
See State Water Contractors v.
9
legal authority and jurisdiction.
10
Salazar, et al., 1:09-cv-00480 OWW GSA, Doc. 1 at 34-36.
11
claim, which narrowly focuses on the RPA’s consistency with DWR’s
12
legal authority, was not squarely addressed by the December 2010
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MSJ Decision.
This
SWC points to page 194 n.47, which states:
The specific requirements of the X2 action are another
example of how the record fails to address the
“consisten[]tcy with the intended purpose of the
action,” and is “within the scope of the ... agency’s
authority and jurisdiction.” 50 C.F.R. § 402.02.
Because of competing demands for water from the
Projects, combined with a limited supply, one purpose
of the Projects is to ensure that that water use and
allocation be carefully managed, and to also ensure
that water is put to a beneficial use and not wasted.
This purpose is, in fact, required by California law,
Cal. Const. art. X, § 2; Cal. Water Code § 275, and
imposed upon federal project operations by virtue of
Section 8 of the Reclamation act of 1902. 43 U.S.C. §
383. The Projects will have to expend hundreds of
thousands of acre feet of water to maintain X2 as far
seaward as Component 3 requires. Miller Decl., Doc.
400, at ¶¶ 67-73. Less water would be required if X2
did not need to be pushed so far downstream–water would
then be available for other uses. Yet nothing in the
BiOp or the record explains why it is essential that X2
be moved seaward to the degree required by Component 3
in order to protect the smelt and its habitat.
26
27
28
an appeal is pending, id., but, as discussed above, the filing of a Rule 59(e)
motion suspends the operation of a notice of appeal until it is resolved, see
Fed. R. App. P. 4(A)(4)(B)(i).
15
1
2
3
Doc. 757 at 194 n.47.
This footnote discussed 50 C.F.R. §
402.02, which provides:
Reasonable and prudent alternatives refer to
alternative actions identified during formal
consultation that can be implemented in a manner
consistent with the intended purpose of the action,
that can be implemented consistent with the scope of
the Federal agency’s legal authority and jurisdiction,
that is [sic] economically and technologically
feasible, and that the Director believes would avoid
the likelihood of jeopardizing the continued existence
of listed species or resulting in the destruction or
adverse modification of critical habitat.
4
5
6
7
8
9
10
50 C.F.R. § 402.02 (emphasis added).
11
restricts itself to consistency with the federal agency’s legal
12
authority and jurisdiction.
13
California law because those are “imposed upon federal project
14
15
The regulation plainly
Footnote 47 discussed provisions of
operations by virtue of Section 8 of the Reclamation act of 1902.
43 U.S.C. § 383.”
No authority has been presented suggesting
16
17
that this regulation should be extended to impose a requirement
18
that the RPA be consistent with a state agency’s legal authority
19
and jurisdiction.
20
relief.
SWC did not prevail on its fifth claim for
Its motion to amend the judgment is DENIED.
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2.
Coalition for a Sustainable Delta & Kern County Water
Agency’s Request.
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Coalition for a Sustainable Delta (“Coalition”) and Kern
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25
26
27
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County Water Agency (“KCWA”) separately request that Paragraph C
of the Final Judgment be amended to reflect that they prevailed
on their Third claim for relief, which alleged Federal Defendants
failed to adequately analyze the status of the species and the
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1
environmental baseline in the BiOp in violation of the ESA and
2
Administrative Procedure Act.
3
Delta, et al. v. U.S. Dept. of the Interior, et al., 1:09-cv-
4
See Coalition for a Sustainable
00422 OWW GSA, Doc. 23, at 22-23.
The December 2010 MSJ Decision
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found a number of errors in the BiOp’s baseline analysis of
“other stressors” on the smelt.
See Doc. 757 at 146-155.
These
8
findings result in the Coalition’s and KCWA’s success on their
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Third Claim.
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reflect this success.
The Amended Final Judgment shall be corrected to
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III. CONCLUSION
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Federal Defendants’ implicit contention that water supply
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impacts of the OCAP cannot be considered under the ESA is a total
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abdication of NEPA’s requirement to evaluate the impacts of the
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RPA on humans.
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responsibility by isolating the ESA issues.
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Federal Defendants cannot avoid this
The remand schedule must be revised.
Federal Defendants’
have demonstrated that the existing deadline for completion of
remand is infeasible.
They say they need 30 months.
The Court
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would prefer to see the work done in 24 months.
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Defendants’ request to amend the judgment is GRANTED, with the
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slight modification discussed above.
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completed on or before October 1, 2011, and a final BiOp and RPA,
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Federal
A draft BiOp shall be
as well as the required NEPA analysis, shall be completed by
December 1, 2013.
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1
Plaintiffs’ alternative 20-month proposal is not properly
2
before the court and does not reflect a realistic commencement
3
date or an enforceable process, given limited agency resources.
4
SWC’s motion to correct the Final Judgment is DENIED.
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7
The Coalition’s and KCWA’s motion to correct the Final
Judgment is GRANTED.
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Federal Defendants shall submit a proposed Amended Final
9
Judgment consistent with this memorandum decision within five (5)
10
days following electronic service of this decision.
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SO ORDERED
Dated: May 4, 2010
/s/ Oliver W. Wanger
United States District Judge
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