San Luis & Delta-Mendota Water Authority et al v. Salazar et al
Filing
930
MEMORANDUM DECISION Re Jurisdiction to Consider Plaintiffs' Injunctive Relief Petition Re Fall X2 Action, signed by Judge Oliver W. Wanger on 6/24/2011. (Plaintiffs shall submit a proposed form of order consistent with this memorandum decision within 5 days following electronic service.) (Gaumnitz, R)
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UNITED STATES DISTRICT COURT
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)
STATE WATER CONTRACTORS v. SALAZAR,
et al. (1:09-cv-00480-OWW-GSA)
COALITION FOR A SUSTAINABLE DELTA, et
al. v. UNITED STATES FISH AND
WILDLIFE SERVICE, et al. (1:09-cv00422-OWW-GSA)
METROPOLITAN WATER DISTRICT v. UNITED
STATES FISH AND WILDLIFE SERVICE, et
al. (1:09-cv-00631-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
Partially consolidated
with:
1:09-cv-01201-OWW-DLB
MEMORANDUM DECISION RE
JURISDICTION TO CONSIDER
PLAINTIFFS‟ INJUNCTIVE
RELIEF PETITION RE FALL X2
ACTION.
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
A December 27, 2010 Order on Plaintiffs‟ Motions for Summary
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Judgment found that Federal Defendants violated the Endangered
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Species Act (“ESA”) and the Administrative Procedure Act (“APA”),
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and that the 2008 Delta Smelt Biological Opinion (“BiOp”) for the
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coordinated operations of the Central Valley Project (“CVP”) and
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State Water Project (“SWP”) and its Reasonable and Prudent
Alternative (“RPA”) are “arbitrary, capricious, and unlawful.”
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The BiOp was remanded without vacatur to the United States Fish
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and Wildlife Service (“FWS”), with an express reservation of
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jurisdiction, for further consideration “in accordance with this
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decision and the requirements of law.”
Doc. 763.
A December 2,
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2009 Order found “that [the United States Bureau of] Reclamation
violated [the National Environmental Policy Act (“NEPA”)] by
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failing to perform any NEPA analysis prior to provisionally
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adopting and implementing the 2008 BiOp and its reasonable and
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prudent alternative.”
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Doc. 457.
Final Judgment was entered March 28, 2011 and amended May
17, 2011.
Doc. 884.
The Amended Judgment states that the
district court “expressly retains jurisdiction during the period
of remand, to the extent permitted by law, in the event issues
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arise concerning project operations.”
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7, 2011, Defendant-Intervenors filed a notice of appeal.
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853.
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Doc. 884, ¶ I.
On April
Doc.
Federal Defendants have not appealed.
Plaintiffs have noticed a motion for injunctive relief
against Federal Defendants‟ implementation of RPA Component 3
(Action 4), also referenced as the “Fall X2 Action,” which
requires the Projects to be operated to maintain X21 during the
fall months at a location no greater than 74 km upstream from the
Golden Gate Bridge following wet water years, and no greater than
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X2 is the location in the Delta where the salinity is two parts per
thousand, measured as the distance upstream from the Golden Gate.
Consolidated Delta Smelt Cases, 717 F. Supp. 2d 1021, 1029 (E.D. Cal. May 27,
2010).
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81 km upstream following above normal water years.
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283.
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of the Fall X2 Action will require use of approximately 1,000,000
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BiOp at 282-
This is a wet year and Plaintiffs estimate implementation
acre-feet of water.
See Doc. 920 at 7.
Defendants now maintain
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that the district court does not retain jurisdiction to address
the requested injunctive relief.
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II. PREVIOUS RULINGS RE FALL X2 ACTION
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Doc. 909.
A December 14, 2010 Memorandum Decision Re Cross Motions for
Summary Judgment (“12/14/2010 MSJ Decision”), Doc. 757, rejected
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some of Plaintiffs‟ challenges to the BiOp‟s rationale for the
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Fall X2 action, but found that the BiOp‟s X2 analysis was flawed
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in two critical respects.
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large part on a comparison of runs from two different computer
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models for Project operations, Calsim II and Dayflow.
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Decision found that, in the absence of calibration of the two
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The rationale for the action rests in
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models, which was not performed, “the Calsim II to Dayflow
comparison has the potential to introduce significant, if not
overwhelming, bias to the analysis that the BiOp nowhere
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discussed or corrected.”
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X2 action was remanded to the agency for further consideration of
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the implications of this error to the BiOp‟s findings.
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220.
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12/14/2010 MSJ Decision at 125-26.
The
Id. at
The Decision further held that the BiOp violated the APA‟s
requirement that FWS “examine the relevant data and articulate a
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satisfactory explanation for its action including a rational
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connection between the facts found and the choice made,” Motor
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Vehicle Mfrs. Ass‟n v. State Farm Mutual Auto. Ins. Co., 463 U.S.
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29, 43 (1983), as well as FWS‟s own Consultation Handbook
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implementing the ESA, which requires “a thorough explanation of
how each component of the [RPA] is essential to avoid jeopardy
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and/or adverse modification,” ESA Handbook at 4-43, because the
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BiOp “fail[ed] to explain why it is essential to maintain X2 at
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74 km and 81 km respectively, as opposed to any other specific
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location.”
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water to escape into the ocean.
III. DISCUSSION
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The practical
result of the X2 Action is to allow large volumes of Project
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12/14/2010 MSJ Decision at 126-27.
Natural Resources Defense Council v. Southwest Marine Inc.,
242 F.3d 1163, 1164 (9th Cir. 2001), provides the governing
standard.
In Southwest Marine, a marine repair and maintenance
company challenged the district court‟s modification of an
injunction while an appeal was pending.
After trial, the
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district court found Southwest Marine violated the Clean Water
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Act and imposed an injunction as a civil penalty that included
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water testing and storm water recapture requirements.
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1165.
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Id. at
The district court simultaneously issued a limited stay of
enforcement of the water testing and pier storm water recapture
requirements, asking for further argument and briefing on: (1)
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whether the district court should substitute testing of the
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surface “microlayer” for testing “at the surface,” and (2)
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possible engineering alternatives to pier storm water recapture.
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Id.
The district court eventually received further briefing and
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held a hearing, but not until after Southwest Marine appealed the
original judgment, including the injunction.
After the hearing,
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the district court modified the injunction by substituting: (1)
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testing of the surface “microlayer” for testing “at the surface,”
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and (2) an 18-month deadline for the requirement of “reasonably
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expeditious” construction of a facility to capture pier storm
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water runoff.
Southwest Marine later appealed the district
court‟s jurisdiction to modify the injunction.
Id. at 1165-66.
The Ninth Circuit reviewed the general legal framework:
Once a notice of appeal is filed, the district court is
divested of jurisdiction over the matters being
appealed. Griggs v. Provident Consumer Discount Co.,
459 U.S. 56, 58 (1982) (per curiam); McClatchy
Newspapers v. Central Valley Typographical Union No.
46, 686 F.2d 731, 734 (9th Cir. 1982). This rule is
judge-made; its purpose is to promote judicial economy
and avoid the confusion that would ensue from having
the same issues before two courts simultaneously.
Masalosalo v. Stonewall Ins. Co., 718 F.2d 955, 956
(9th Cir. 1983); 20 James Wm. Moore, Moore's Federal
Practice, § 303.32[1] (3d ed. 2000). The principle of
exclusive appellate jurisdiction is not, however,
absolute. Masalosalo, 718 F.2d at 956; 20 Moore's §
303.32[2][b]. The district court retains jurisdiction
during the pendency of an appeal to act to preserve the
status quo. Newton v. Consolidated Gas Co., 258 U.S.
165, 177 (1922); Hoffman v. Beer Drivers & Salesmen's
Local Union No. 888, 536 F.2d 1268, 1276 (9th Cir.
1976); United States v. El-O-Pathic Pharmacy, 192 F.2d
62, 79 (9th Cir.1951).
This exception to the jurisdictional transfer principle
has been codified in Rule 62(c) of the Federal Rules of
Civil Procedure, which allows a district court to
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“suspend, modify, restore, or grant an injunction
during the pendency of the appeal upon such terms as to
bond or otherwise as it considers proper for the
security of the rights of the adverse party.” This Rule
grants the district court no broader power than it has
always inherently possessed to preserve the status quo
during the pendency of an appeal; it “does not restore
jurisdiction to the district court to adjudicate anew
the merits of the case.” McClatchy Newspapers, 686 F.2d
at 734. Thus, any action taken pursuant to Rule 62(c)
“may not materially alter the status of the case on
appeal.” Allan Ides, The Authority of a Federal
District Court to Proceed After a Notice of Appeal Has
Been Filed, 143 F.R.D. 307, 322 (1992).
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Id. at 1166 (emphasis added).
The Ninth Circuit first defined the status quo as of the
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filing of the appeal:
The status quo as of the filing of Southwest Marine's
consolidated appeal required Southwest Marine to
conduct water column testing, including testing “at the
surface,” and to take steps to capture storm water
runoff from piers “in a reasonably expeditious manner.”
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Id.
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injunction:
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The Appeals court next examined the purpose of the
The purpose of the water column testing is to determine
whether blasting or painting operations conducted by
Southwest Marine on each vessel in dry dock or at pier
side is contributing to pollution levels in San Diego
Bay. The purpose of the storm water capture requirement
is to prevent Southwest Marine from discharging storm
water that degrades the marine habitat of its offshore
leasehold, which the district court found to be “devoid
of life.”
Id. at 1166-67.
The Appeals Court reasoned that the district court‟s “postjudgment modifications to the injunction were minor adjustments
that effectuated the underlying purposes of the original
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requirements,” and “did not materially alter the status of the
consolidated appeal.”
Id. at 1167.
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The Ninth Circuit also
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emphasized that the modification “left unchanged the core
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questions before the appellate panel deciding the [] appeal,” id.
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at 1167, namely “whether the district could permissibly (1)
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require any water column testing, including testing „at the
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surface,‟ or (2) require the construction of a pier storm water
capture facility.”
Id. at 1167.
Southwest Marine distinguished McClatchy Newspapers, “where
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the district court amended its original judgment, in which it had
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affirmed an arbitrator's decision that a guarantee of lifetime
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employment survived a sympathy strike, to require reinstatement
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of the striking employees.”
[In McClatchy] The reinstatement issue had not received
a full and fair hearing, was not before the appellate
court, and could not be undone by the appellate court's
ultimate reversal of the arbitrator's decision. Id. at
735 (noting that affirmance of the district court's
amended judgment “would affect substantial rights of
the parties after appeal”). Thus, the reinstatement
order had impermissibly altered the status of the case
on appeal.
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Southwest Marine's case presented a very different
situation. If the core requirements of water column
testing and pier storm water capture were ultimately
reversed on appeal, the “microlayer” testing
requirement and the 18-month construction deadline
would also effectively be reversed, leaving none of
Southwest Marine's substantial rights affected after
the conclusion of the consolidated appeal. Southwest
Marine had a full and fair hearing on these core issues
before the district court and before the appellate
panel deciding its consolidated appeal.
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The
Southwest Marine panel reasoned:
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Id. (citations omitted).
Id.
Southwest Marine stands generally for the following
propositions:
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(1) A district court may act to preserve the status quo
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while an appeal is pending.
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(2) The status quo is measured at the time the appeal
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is filed.
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(3) The district court may only act to effectuate the
underlying purposes of the original judgment and may
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not materially alter the status of the appeal or change
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the core questions before the appellate panel.
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(4) It is impermissible to alter the status of the case
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on appeal by taking further action that cannot be
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undone by the appeal.
In other words, the district
court‟s post-appeal action must be grounded upon an
issue that will receive a full and fair hearing before
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the appellate panel, leaving the burdened party‟s
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substantial rights unaffected if a reversal is issued.
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Applying these principles to the facts of the present case, the
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district court has jurisdiction to hear Plaintiffs‟ injunctive
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relief petition.
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The first step is to determine the status quo.
Federal
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Defendants point out that the BiOp and its RPA has been remanded
but not vacated.
Therefore, they argue that the status quo is
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operation of the projects pursuant to the RPA (including the Fall
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X2 Action) as described in the BiOp.
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distortion of the record and cannot be adopted for two reasons.
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This position is a material
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First, Plaintiffs indicated their intent to move for injunctive
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relief against the Fall X2 Action long before Final Judgment was
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entered or the appeal was filed.
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Defendants strenuously resisted
immediate injunctive proceedings on the Fall X2 Action when a
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hearing was requested by Plaintiffs, on the ground that, at the
time, it was not clear whether the Bureau would implement the
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Fall X2 Action during the 2010-2011 water year; i.e., it was
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premature for the district court to entertain an application for
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injunctive relief before it was certain the Fall X2 Action would
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be implemented based on this water year‟s hydrology.
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Second, the 12/14/2010 Decision found the X2 Action was
unlawful and unjustified on several grounds.
This Fall X2 Action
is unprecedented and had never before been implemented.
Remand
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was ordered with the Court‟s understanding that any future
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unlawful action in Project operations would be the subject of
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provisional remedy proceedings.
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the Court understood that, as has been the case throughout the
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over five years of active litigation over the Delta Smelt, as
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In remanding without vacature,
operational issues arise, the parties may seek and have sought
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provisional remedies during periods of remand of biological
opinions to the Agency.
The parties that sought remand without
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vacatur never disclosed they intended to argue that a remand
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without vacatur insulated CVP operations from judicial review
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during an appeal.
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The disputed Fall X2 Action has never been triggered.
The
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status quo as of the filing of the appeal on April 7, 2011 is
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that the implementation of the Fall X2 Action is an unprecedented
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possibility, which is projected to take one million acre feet of
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water from lawful users, and that Plaintiffs would have the
opportunity to move to enjoin the Action if its implementation
was reasonably certain.2
The next inquiry is whether acting upon Plaintiffs‟ request
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for injunctive relief would effectuate the underlying purposes of
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the original judgment.
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The answer is unquestionably yes.
The
judgment found the Fall X2 Action was unlawful in a critical
respect, namely that the unprecedented specific water
prescription imposed, which requires huge amounts of Project
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yield, was unjustified by the record.
Permitting the Action to
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be implemented without even considering the totality of its on-
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the-ground consequences would undermine the purposes of the
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judgment and the obligation of a court sitting in equity to
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In related cases, after biological opinions were remanded without vacatur,
no party has ever objected to the district court‟s assertion of jurisdiction
to grant interim injunctive relief. Here, Defendants first mentioned their
jurisdictional objection during discussions over the form of the final
judgment in this case. Federal Defendants argue that this changed position is
justified in light of the distinct circumstances here, where final judgment
has been entered and an appeal has been taken. But, Federal Defendants fail
to acknowledge the specific and repeated reservations of jurisdiction by the
district court. Federal Defendants‟ failure to disclose this position,
although they have taken no appeal, prevented the Court from fashioning the
remand order to express the Court‟s intent to condition the remand to the
Agency on the Court‟s ability to address ongoing operational issues. The
decision not to vacate the BiOp was based in part upon the assumption that the
district court would have continued jurisdiction to review application of the
RPA under ever-changing circumstances.
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protect all competing human interests, health, and safety, not
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only the species.
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The district court may not materially alter the status of
the appeal, change the core questions before the appellate panel,
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and/or take further actions that cannot be undone by the appeal.
Defendants argue that that Plaintiffs‟ merits brief rehashes
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issues already decided in the 12/14/2010 Decision.
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review of the opening merits brief, Doc. 990, reveals that there
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is considerable overlap between the arguments there advanced and
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those addressed in the 12/14/Decision.
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A preliminary
Southwest Marine and
related cases prohibit the district court from reconsidering
issues already ruled upon, as this would impermissibly create a
“moving target” for the appeal.
See Britton v. Co-op Banking
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Group, 916 F.2d 1405, 1412 (9th Cir. 1990)(discussing the example
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of McClatchy Newspapers, in which the district court‟s
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modification of an order “reflected a change in the result of the
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very issue on appeal; if allowed to stand, the appeals court
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would be dealing with a moving target if it ruled on the revised
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order or, alternatively, its ruling would be obsolete if it ruled
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on the „old‟ order”).
However, the procedural posture of the cross-motions for
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summary judgment is distinct from a request for injunctive
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relief.
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found the Fall X2 Action unlawful.
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The 12/14/2010 Decision ruled in favor of Plaintiffs and
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Consideration of whether
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injunctive relief is required to prevent new, never imposed,
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operational prescriptions which may cause irreparable injury will
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not revisit or in any way modify the final judgment.
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Nor does
the pending appeal preclude consideration of the strength of the
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scientific bases for the X2 Action in deciding a request for
equitable relief.
Considering whether the scientific rationale
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for an action is weak is legally distinct from finding that the
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agency violated the APA in advancing such a rationale.
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Hoffman for and on Behalf of N.L.R.B. v. Beer Drivers and
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Salesmen‟s Local Union No. 888, 536 F.2d 1268 (9th Cir. 1976),
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explains that the general rule that an appeal to the circuit
court deprives the district court of jurisdiction as to matters
involved in the appeal “is not a creature of statute and is not
absolute in character.”
It is our opinion that the rule should not be applied
in those cases where the district court, as here, has a
continuing duty to maintain a status quo, and where, as
the days pass, new facts are created by the parties and
the maintenance of the status quo requires new action.
Id. at 1276.
This is such a case.
New facts are constantly
being created by environmental conditions and continuing
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operating requirements of the Projects.
change hourly.
Such requirements may
Maintenance of the status quo may require changes
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to Project operations.
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court‟s jurisdiction over the BiOp‟s remand to the Agency and the
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ongoing operation of a federal Reclamation project.
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The appeal does not remove the district
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IV. CONCLUSION
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For the reasons set forth above, the appeal does not
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implicate whether the Court has jurisdiction to examine issues
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arising out of the coordinated operations of the Projects.
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No
provisional remedial relief in this unique water year will affect
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the Appeals Court‟s review of the issues raised by the judgment.
Any party has the right to seek injunctive relief against an
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unlawful RPA Action, if the result of the Action in a given water
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year causes irreparable injury to humans and/or the public
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interest.
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consider the nature and effect of the Fall X2 Action on all
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Defendants‟ argument is that the Court cannot even
affected parties and society at large.
This is not a case where
the requested actions will change the judgment in any way.
The
district court has jurisdiction to hear Plaintiffs‟ request for
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injunctive relief against the Fall X2 Action.
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proceed as scheduled.
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Briefing shall
Plaintiffs shall submit a proposed form of order consistent
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with this memorandum decision within five (5) days following
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electronic service.
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SO ORDERED
June 24, 2011
/s/ Oliver W. Wanger
United States District Judge
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