San Joaquin River Group Authority v. National Marine Fisheries Service et al

Filing 56

MEMORANDUM DECISION Re Central Delta Water Agency, Et Al.'s 27 Motion to Intervene signed by Judge Oliver W. Wanger on 7/5/2011. (Proposed Order Consistent with Memorandum Decision Deadline: 7/26/2011) (Figueroa, O)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SAN JOAQUIN RIVER GROUP
AUTHORITY,
Plaintiff,

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v.

Defendants.

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MEMORANDUM DECISION RE CENTRAL
DELTA WATER AGENCY, ET AL.‟S
MOTION TO INTERVENE (Doc. 27)

NATIONAL MARINE FISHERIES
SERVICE,

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1:11-cv-00725 OWW GSA

I. INTRODUCTION/BACKGROUND
This suit arises from the United States Pacific Fisheries
Management Council‟s (“PFMC”) April 13, 2011 adoption of
commercial troll and recreational fishing management measures for

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the waters south of Cape Falcon, permitting commercial and

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recreational fishing for Sacramento River fall-run Chinook Salmon

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(“SRFC”) for the 2011 fishing season (“2011 management

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measures”), and the National Marine Fisheries Service‟s (“NMFS”)

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May 4, 2011 approval of the PFMCs recommended 2011 fishing
regulations.

Doc. 1.

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Central Delta Water Agency, South Delta Water Agency, Honker
Cut Marine, Inc., Rudy Mussi, and Roubert Souza (collectively

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“Applicants”) move for leave to intervene in this case as of

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right pursuant to Federal Rule of Civil Procedure 24(a), or in

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the alternative to permissively intervene under Rule 24(b).

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Doc.

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19, filed June 10, 2010.

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the motion, provided the intervention will not affect the page

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limits available to Federal Defendants for any briefing in this

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matter.

Doc. 29.

Federal Defendants take no position on

Plaintiff opposes.

Doc. 30.

Applicants

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replied.

Doc. 43.

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II. BACKGROUND
A.

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Claims in this Case.
Plaintiff, a coalition of irrigation districts holding water

rights in the San Joaquin River or one of its tributaries, assert
that Federal Defendants‟ adoption of the 2011 management measures

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violates the Administrative Procedure Act (“APA”), Magnuson-

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Stevens Fishery Conservation and Management Act (“Magnuson Act”),

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and National Environmental Policy Act (“NEPA”), by among other

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things approving “high levels” of Sacramento River Fall Run

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Chinook salmon harvest, even though “overfishing” concerns

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allegedly continue relative to the abundance of the species.

Id.

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B.

The Applicants.

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1.

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The Central Delta Water Agency (“Central Delta”) is a

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political subdivision of the State of California, created by the

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California Legislature in 1973.

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Central Delta‟s territory includes approximately 125,000 acres of

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Central Delta Water Agency.

Mussi Decl., Doc. 27-5, ¶ 18.

land and associated waterways located entirely within the

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boundaries of the Delta, as defined by Section 12220 of the
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California Water Code, in the County of San Joaquin.

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Central Delta‟s lands are devoted primarily to agriculture, its

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lands have other uses, including for commercial, navigation,

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Although

transportation, residential, recreational, and habitat purposes.

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Id. ¶ 21.
A Central Delta Director and Co-Plaintiff, Rudy Mussi,

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explains that that Central Delta has a long-standing interest in

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Delta water quality because “[g]ood quality water is necessary

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for all of the uses of the waters within the Delta including

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farming, recreation, and wildlife use.”

Mussi Decl., 27-5, ¶ 28.

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2.

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Like Central Delta, South Delta is a political subdivision

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of the State of California, created by the Legislature in 1973.

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Robinson Decl., Doc. 27-3, ¶ 19.

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approximately 148,000 acres of land and associated waterways

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South Delta Water Agency.

South Delta includes

located entirely within the boundaries of the Delta, in the
County of San Joaquin.

Id.

South Delta‟s lands are also

principally devoted to agriculture, but other uses include

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commercial, navigation, transportation, residential,

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recreational, and habitat purposes.

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empowered to undertake “any lawful act necessary in order that a

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sufficient in-channel water supply of suitable quality may be

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South Delta is also

available for any present or future beneficial use or uses of the
lands within the agency.”

Cal. Water Code App. §§ 116-4.1, 1163

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4.2(b).

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3.

Honker Cut Marine, Inc.

Honker Cut Marine, Inc. (“Honker Cut”), is a California

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Corporation, owned and operated since 1986 as a marine business

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on King Island in San Joaquin County, on Honker Cut (a Delta

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waterway).

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the real property on which it operates, which is situated on

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Karnofel Decl., Doc. 27-4, ¶¶ 3-4.

Honker Cut.

Id. ¶ 3.

Honker Cut owns

The business sells, services, stores,

maintains, and launches boats used in the Delta for, among other

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things, recreational fishing.

Id. ¶¶ 4, 7.

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4.

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Robert Souza, Sr. is an avid angler residing in Stockton,

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Robert Souza, Sr.

California.

Souza Decl., Doc. 27-6, ¶¶ 1, 4-5.

visits the Delta to fish for striped bass.

He regularly

Id. ¶ 6.

Mr. Souza

is keenly interested in the conservation of striped bass in the

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Delta, for educational, moral, spiritual, aesthetic, and

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recreational reasons, and asserts the belief that “it is

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unethical to kill salmon, steelhead, and striped bass in the

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Delta.”

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Id. ¶¶ 6.

Mr. Souza characterizes his interest in this litigation as
follows:

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The plaintiff‟s lawsuit claims that its “member
agencies are injured by the failure” to comply with
Magnuson-Stevens “because their water rights, water
supply and water supply facilities and all of its
electrical generation, recreation, and flood control
facilities depend on or are located on the San Joaquin
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Id. ¶ 17.

River and its tributaries, which is occupied by”
Sacramento River fall-run Chinook salmon, and “[a]s
holders of the major non-federal and non-State water
rights in the San Joaquin River basin, SJRGA member
agencies are responsible for abundance of” Sacramento
River fall-run Chinook salmon. Complaint for
Declaratory Relief and Injunctive Relief, para. 16-17.
SJRGA‟s member agencies claim water rights upstream of
the Delta, and their use and exercise of their alleged
rights impacts Delta water quality. If SJRGA‟s member
agencies in fact claim that they have a responsibility
for Sacramento River fall-run Chinook salmon and that
their water use operations are influenced by the
abundance of such salmon, than [sic] Delta water
quality is also influenced by the abundance of such
salmon, and I personally am interested in SRFC
abundance.

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5.

Rudy Mussi.

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Rudy Mussi is a director of Central Delta Water Agency and a

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farmer within Central Delta.

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entire life in the Delta and depends on the San Joaquin River for

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water used on his farm.

Mussi Decl. ¶1.

Id. ¶6.

He has lived his

He and his family also use the

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Delta for recreational purposes, including fishing.

Id. at ¶7.

Mr. Mussi has a long-standing and deeply-held personal interest

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in the conservation of the Delta and its species.

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Id. at ¶¶ 8-

10.

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As a director of Central Delta for the past 19 years, he has
spent “countless hours of his own time working on a multitude of
issues relating to the health of the Delta ecosystem,” and
professes to “experience great happiness with the understanding I
am working toward a healthy Delta that will support all fish and

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wildlife species, including salmon, steelhead, striped bass,

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black bass, and delta smelt, as well as birds and other
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Id. ¶¶ 11-12.

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wildlife.”

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precipitous declines in all fish populations in past decades

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indicate the overall poor health of the Delta due to the effects

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Mr. Mussi states that “[t]he

Id. at

that the state and federal pumps have on the ecosystem.”

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¶ 16.

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III. INTERVENTION AS OF RIGHT.

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Applicants move to intervene as of right or, in the
alternative, to permissively intervene.

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A.

Intervention as of Right.

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1.

Legal Standard.

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Intervention is governed by Federal Rule of Civil Procedure

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24.

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applicant must claim an interest, the protection of which may, as

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To intervene as a matter of right under Rule 24(a)(2), an

a practical matter, be impaired or impeded if the lawsuit
proceeds without the applicant.

Forest Conservation Council v.

U.S. Forest Serv., 66 F.3d 1489, 1493 (9th Cir. 1993).

The Ninth

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Circuit applies Rule 24(a) liberally, in favor of intervention,

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and requires a district court to “take all well-pleaded, non-

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conclusory allegations in the motion as true absent sham,

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frivolity or other objections.”

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Diversity v. Berg, 268 F.3d 810, 820 (9th Cir. 2001).

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S.W. Ctr. for Biological
A four-

part test is used to evaluate a motion for intervention of right:

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(1) the motion must be timely;
(2) the applicant must claim a "significantly
protectable" interest relating to the property or
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transaction which is the subject of the action;

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(3) the applicant must be so situated that the
disposition of the action may as a practical matter
impair or impede its ability to protect that interest;
and

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(4) the applicant's interest must be inadequately
represented by the parties to the action.

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Forest Conservation Council, 66 F.3d at 1493.

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2.

Timeliness.

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In assessing timeliness, courts in the Ninth Circuit must

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consider: (1) the current stage of the proceedings; (2) whether

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the existing parties would be prejudiced; and (3) the reason for

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any delay in moving to intervene.

League of United Latin Am.

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Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997).
Applicants moved to intervene on June 10, 2010, Doc. 27, after

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providing notice of their intent to do so no later than June 6,

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2010, see Doc. 24, which is approximately 30 days after the

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filing of the Complaint.

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when “the motion was filed before the district court made any

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substantive rulings.”

Existing parties are not prejudiced

N.W. Forest Resource Council v. Glickman,

82 F.3d 825, 837 (9th Cir. 1996).

Here, no substantive rulings

have been made in this case, no scheduling conference has been

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held, and no discovery has commenced.

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taken in the case was the setting of a briefing and hearing

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schedule for the parties‟ cross dispositive motions.

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The only judicial action

Plaintiff nonetheless contends that the intervention is
untimely because of the expedited briefing schedule on cross7

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motions for summary judgment, which is not atypical in Magnuson

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Act cases.

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v. Daley, 995 F. Supp. 1411, 1424-25 (M.D. Fla. 1998)1, which

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Plaintiff cites Southern Offshore Fishing Association

denied intervention by a coalition of environmental

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organizations.

The complaint in that case was filed May 2, 1997;

the schedule required completion of briefing on cross-motions for

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summary judgment by early September 1997; and the administrative

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record was filed June 16, 1997.

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July 16, 1997, more than two months after the complaint was filed

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and less than two months before briefing was to be completed, was

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The intervention petition, filed

untimely in light of the case schedule.

Id.

Plaintiff fails to

mention, however, that the district court nonetheless permitted
the proposed intervenors to file amici curiae briefs on any issue
presented by the parties.

Id.

The situation here is distinguishable.

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The petition for

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intervention was filed slightly more than one month after the

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filing of the initial complaint, and more than one month before

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briefing on cross motions was set to commence on July 22, 2011.

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That briefing will span a period of almost two months, with the

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final reply brief due September 16, 2011.

The motion to

intervene is timely.

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3.

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Significant Protectable Interests.

To demonstrate a “significantly protectable interest,” “a

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Plaintiff‟s brief cites this as a “9th Cir. 1998” when it is actually a M.D.
Fla. 1998 case.

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prospective intervenor must establish that (1) the interest

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asserted is protectable under some law, and (2) there is a

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relationship between the legally protected interest and the

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claims at issue.”

Id.

Here, among other remedies, Plaintiff

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seeks to enjoin SRFC commercial harvest, because, “[i]f
significant ocean harvest continues, it will blunt SRFC

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preservation and restoration efforts, including those undertaken

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by [Plaintiff].”

Doc. 1 ¶¶ 188-91.

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a.

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Central Delta and South Delta.

Plaintiff objects that Applicants Central Delta and South

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Delta lack significant protectable interests because their

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interests are “in the Delta,” not the ocean.

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Applicants‟ assertion of a protectable interest is convoluted.

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Rudi Mussi explains Central Delta‟s claim of interest in this

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case:

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Doc. 30 at 3-4.

The plaintiff‟s lawsuit claims that its “member
agencies are injured by the failure” to comply with
Magnuson-Stevens “because their water rights, water
supply and water supply facilities and all of its
electrical generation, recreation, and flood control
facilities depend on or are located on the San Joaquin
River and its tributaries, which is occupied by”
Sacramento River fall-run Chinook salmon and that “[a]s
holders of the major non-federal and non-State water
rights in the San Joaquin River basin, SJRGA member
agencies are responsible for abundance of” Sacramento
River fall-run Chinook salmon. Complaint for
Declaratory Relief and Injunctive Relief, para. 16-17.
SJRGA‟s member agencies claim water rights upstream of
the Delta, and their use and exercise of their alleged
rights impact Delta inflow and water quality. To the
extent SJRGA‟s member agencies in fact claim that they
have a responsibility for Sacramento River fall-run
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Chinook salmon and that their water use operations are
influenced by the abundance of such salmon, the Delta
inflow and water quality is also influenced by the
abundance of such salmon.

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Id. at ¶ 29.

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to the management of SRFC in the ocean environment that could

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result from this lawsuit will not only affect the abundance of

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salmon but may also “influence” freshwater management measures to

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Central Delta appears to suggest that any changes

benefit salmon, which in turn will affect water quality in the
Delta.
Plaintiff argues that these asserted interests are not
related to this litigation:
The water quality and water supply interests raised by
the South Delta [] and Central Delta [] do not depend
on whether the 2011 management measures are sustained.
(Doc. 27-1.) While the Applicants state that “the fish
themselves are dependent on the same water supply and
water of sufficient quality to sustain them in the
Delta,” they do not explain how the water supply or
water quality for lands within their respective
jurisdictions would be harmed if the 2011 management
measures were not sustained. Regardless of whether the
fish depend on the same water supply and water quality,
SDWA and CDWA would only have an interest in the
disposition of the 2011 management measures if their
water supply and water quality depended on the
abundance of Fall Chinook. Since this is not stated in
the Motion, they do not state an interest relating to
the present litigation.
Doc. 30 at 4 (emphasis added).
Applicants respond by pointing out that Plaintiff has
alleged a connection between the 2011 management measures and
freshwater operations.

The Complaint alleges that “Section

3406(b)(1) of the Central Valley Project Improvement Act
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(„CVPIA‟) (Public Law 102-575) directs the Secretary of the

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Interior to develop and implement a program that makes all

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reasonable efforts to at least double natural production of

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anadromous fish in California's Central Valley streams on a long-

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term, sustainable basis.”
species.

Doc. 1 ¶ 173.

SRFC are such a

In addition, water quality standards imposed by the

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California State Water Resources Control Board (“SWRCB”) include

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a “„narrative salmon doubling objective,‟ which requires that

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water quality conditions shall be maintained, together with other

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measures in the watershed, sufficient to maintain a doubling of

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natural production of Chinook salmon from the average production
of 1967-1991, consistent with the provisions of State and federal
law.”

Id. ¶ 174.

The SWRCB has also imposed Sacramento and San

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Joaquin River flow objectives to “provide attraction and

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transport flows and suitable habitat for various life stages of

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aquatic organisms, including Delta smelt and Chinook salmon.

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¶ 15.

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harvest may “require additional actions to double the natural

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Id.

The Complaint inferentially alleges that the increased

production of salmon than would have otherwise been required....”

Id. ¶ 177.2

Such actions may impact flows in the Delta, which

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Applicants also argue that because “Applicants have claims to
the same waters as do SJRGA member agencies, Applicants interests
may be affected by determinations of SJRGA member agency rights.”
Doc. 43 at 4. But, Applicants fail to explain what “rights” of
Plaintiff‟s are at issue in this case. That Plaintiff‟s members
are holders of water rights in the San Joaquin basin is
undisputed.
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has the potential to impact proposed intervenors‟ interests.

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Central Delta and South Delta have established that their
legally protectable interests are related to the claims in this
case.

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b.

Honker Cut.

Honker Cut‟s claimed interest is in the recreational value
of the SRFC fishery.

Plaintiff argues that because Salmon

fishing in the San Joaquin River has been prohibited for many
years, is not permitted by the 2011 management measures, and

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would not resume even if the 2011 management measures are

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sustained, Honker Cut Marine has no legitimate interest in salmon

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fishing in the San Joaquin River and the Delta.

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However, Applicants point out that fishing for salmon is

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permitted in the lower Sacramento River.

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claims in this case relate to SRFC abundance.

Doc. 30 at 5.

Doc. 43 at 7.

The

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c.

Mr. Souza.

Plaintiff complains that Applicants have not articulated any

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interest Mr. Souza has in the present litigation.

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points out that although Mr. Souza fly fishes, he does not fish

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for Fall Chinook.

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Plaintiff

But, Mr. Souza has articulated an aesthetic

interest in SRFC abundance and the fish themselves.

Souza Decl.,

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Doc. 27-6 at ¶ 5.

This is a protected interest.

See Summers v.

Earth Island Inst., 129 S. Ct. 1142, 1149 (2009) (acknowledging
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aesthetic interests as sufficient for purposes of standing in

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environmental cases).

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abundance and therefore to Mr. Souza‟s aesthetic interest in that

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The claims in this case relate to SRFC

species.

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d.

Mr. Mussi

Plaintiff also objects that Mr. Mussi has no protectable
interest in this case.

Like Mr. Souza, he holds an aesthetic

interest in SRFC abundance.

He also shares Central Delta and

South Delta‟s interest in water quality, as he uses Delta water

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for his farming operations.

These are protectable interests

related to the claims in this case.
4.

Impairment of Interests.

The next inquiry is whether disposition of this action may,
as a practical matter, impair or impede Applicants‟ abilities to
protect their interests.

This requirement demands only a showing

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that the applicant “would be substantially affected in a

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practical sense by the determination made in an action.”

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Ctr., 268 F.3d at 822.

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S.W.

To the extent that Applicants are interested purely in SRFC
abundance for either commercial or aesthetic reasons, it is
unclear why these interests do not completely overlap with those

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of the Plaintiff, SJRGA.

The Complaint alleges that the 2011

management measures allow for too much salmon harvesting and
would result in too little salmon abundance and continued
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overfishing.

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interest will be impaired in any practical sense by this lawsuit.

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Applicants have failed to demonstrate how this

Those Applicants with concerns about water quality, namely
Central Delta, South Delta, and Mr. Mussi, hold interests that

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may, at least according to the allegations of the Complaint, be
impaired in a practical sense by a determination in favor of

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Plaintiff.

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increased harvest may “require additional actions to double the

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natural production of salmon than would have otherwise been

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required....”

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As discussed above, the Complaint alleges that the

Id. ¶ 177.

Although the extent and nature of any

such “additional actions” is unclear, such actions may benefit
Applicants by enhancing water quality through the commitment of
additional Project water for fish restoration.

Conversely, the

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absence of such additional actions to double the natural

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production of salmon would harm Applicants.

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interests in preserving and enhancing Delta water quality may be

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impaired by this litigation.

Applicants‟

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5.

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The remaining issue is whether Applicants‟ interests are

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Existing Parties‟ Ability to Represent Applicants‟
Interests.

adequately protected by other defendants or defendant-

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intervenors.

In assessing the adequacy of representation, the

Ninth Circuit looks at three factors:
(1) whether the existing parties will undoubtedly make
all of the applicant‟s arguments;
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(2) whether the existing parties are capable of and
willing to make the applicant‟s arguments; and

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(3) whether the applicant offers a necessary element
to the proceedings that otherwise would be neglected.

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Id. at 823.

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is satisfied if the applicant shows that representation of its

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interests may be inadequate....[T]he burden of making this

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“[T]he requirement of inadequacy of representation

showing is minimal.”

Sagebrush Rebellion Inc. v. Watt, 713 F.2d

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525, 528 (9th Cir. 1983).
It is “well-settled precedent in this circuit” that “[w]here

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an applicant for intervention and an existing party have the same

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ultimate objective, a presumption of adequacy of representation

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arises.”

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see also Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir.

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2003).

League of United Latin Am. Citizens, 131 F.3d at 1305;

This presumption is triggered here with respect to

Applicants‟ interest in SRFC abundance.

The presumption is

rebuttable upon a showing that the applicant and the existing
parties “do not have sufficiently congruent interests.”

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Ctr., 268 F.3d at 823.

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S.W.

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evidence.

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Applicants have provided no such

As to Applicants‟ interest in water quality in the Delta, no
existing party has a sufficiently congruent interest.

However,

the extent to which this interest will require separate briefing

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in this litigation is minimal at best.

This necessitates the

strictest of limits on Applicants‟ participation in the lawsuit.

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B.

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Permissive Intervention.
With respect to Applicants‟ interest in SRFC abundance, for

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which intervention of right is not appropriate, Applicants

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alternatively request permissive intervention pursuant to Rule

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24(b)(2), which requires:

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(1) A timely application;

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(2) A claim or defense sharing common questions of law or

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fact with the main action;

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(3) A lack of undue delay or prejudice to the parties if

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intervention is allowed.

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See Fed. R. Civ. P. 24(b)(2).

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It has already been determined that Applicants motion is
timely, and their concern for SRFC abundance overlaps directly
with the main action.

However, Applicants have not demonstrated

how their interest in SRFC abundance is different from that of

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Plaintiff, who has brought this lawsuit to stop ocean harvest of

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SRFC.

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they can offer no new perspectives will prejudice the existing

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parties under the circumstances, where briefing has been

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expedited.

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Permitting Applicants to intervene on an issue on which

Applicants‟ are not entitled to permissively

intervene on this issue.

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IV. CONCLUSION

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Applicants‟ motion to intervene as a matter of right is

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DENIED as to those Applicants whose sole interest is in SRFC

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abundance, as is their alternative request for permissive

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intervention on this issue.

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Applicants seeking to protect their interest in Delta water

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The motion is GRANTED as to those

quality.

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Applicants‟ intervention is conditioned upon strictly
limiting their participation solely to issues about which they

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can provide unique information and/or arguments.

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clearly delineate the issues related to their water quality

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interest on which they intend to submit briefing.

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shall meet and confer in an effort to agree upon proposed

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Applicants must

The parties

language describing limits for these issues, as well as related
page limits for any such briefing by intervenors, oppositions,
and replies.

Proposed language shall be submitted on or before

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July 8, 2011 at 12:00 noon.

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limiting language, any disagreements shall be described in a

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joint statement to be filed with the court by the same deadline.

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If the parties cannot agree on such

Applicant shall also submit a proposed form of order
consistent with this memorandum decision by July 8, 2011 at noon.
The issue and page limitation language will be incorporated in

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the final order.
SO ORDERED
Dated: July 5, 2011
/s/ Oliver W. Wanger
United States District Judge

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