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

Filing 78

STIPULATION and ORDER RE: WITNESSES, EXHIBITS AND ORAL ARGUMENT FOR SHOW CAUSE HEARING signed by District Judge Lawrence J. O'Neill on August 19, 2013. (Munoz, I)

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COUNSEL IDENTIFICATION ON FINAL PAGE

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SAN LUIS & DELTA-MENDOTA
WATER AUTHORITY and
WESTLANDS WATER DISTRICT,

vs.

Judge: Honorable Lawrence J. O’Neill

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SALLY JEWELL, as Secretary of the U.S.
Department of the Interior; U.S.
DEPARTMENT OF THE INTERIOR;
U.S. BUREAU OF RECLAMATION;
MICHAEL L. CONNOR, as
Commissioner, Bureau of Reclamation,
U.S. Department of the Interior; and
DAVID MURILLO, as Regional Director,
Mid-Pacific Region, Bureau of
Reclamation, U.S. Department of the
Interior,

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Defendants,

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THE HOOPA VALLEY TRIBE; PACIFIC
COAST FEDERATION OF
FISHERMEN’S ASSOCIATIONS;
INSTITUTE FOR FISHERIES
RESOURCES; and YUROK TRIBE,

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410 SEVENTEENTH STREET, SUITE 2200
DENVER, CO 80202-4432

BROWNSTEIN HYATT FARBER SCHRECK, LLP

STIPULATION AND ORDER RE:
WITNESSES, EXHIBITS AND ORAL
ARGUMENT FOR SHOW CAUSE
HEARING

Plaintiffs,

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Case No. 13-cv-01232-LJO-GSA

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Date: August 21-23, 2013 at 8:30a.m.

Defendant-Intervenors.

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The parties, by and through their respective counsel of record, as identified below, have

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met and conferred and hereby propose the following for the hearing on Order to Show Cause

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scheduled for August 21-23, 2013:

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1.

By agreement, the parties exchanged witness lists on August 16, 2013. The parties

identified the following witnesses and proposed areas of testimony:

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Federal Defendants:

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A.

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Reclamation – Mr. Reck may testify about Fall-run Chinook life history

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and historic abundance; the 2002 fish die off and conditions in the lower

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Klamath in 2002 and impacts and comparison to conditions in other years;

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conditions that increase risk of fish die off; fish disease and how it affects

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fish in the river and why Reclamation determined that forecasts and

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observations regarding the fishery and conditions in the river required the

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release of the augmentation flow this year; how the increase in Trinity

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releases will address the risk; additional details regarding the determination

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410 SEVENTEENTH STREET, SUITE 2200
DENVER, CO 80202-4432

BROWNSTEIN HYATT FARBER SCHRECK, LLP

Donald Reck, Environmental Resource Specialist, U.S. Bureau of

of the quantity of releases needed and effects of flow augmentation on

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other species; 2012 and 2013 environmental analysis of impacts of the flow

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augmentation.

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B.

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Nicholas Hetrick, Fisheries Biologist, US Fish and Wildlife Service – Mr.
Hetrick may testify about Fall-run Chinook life history and historic

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abundance; fish disease and how it affects fish in the river; the fish die off

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and conditions in the lower Klamath in 2002, along with studies conducted

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after this event; how the increase in Trinity releases addresses the

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conditions of concern; development of 2013 flow release recommendation;

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overview of determination of the quantity of releases needed; flows and

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appropriate habitat conditions in the Lower Klamath River that are

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essential for migrating Chinook salmon and flows that are needed to create

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habitat conditions to restore Trinity River fish; 2012 and 2013

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environmental analysis of impacts of the flow augmentation.

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C.

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Ronald Milligan, Manager of the Central Valley Operations Office, U.S.
Bureau of Reclamation – Mr. Milligan may testify about the operations of

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the Central Valley Project and the Trinity River Division in particular, the

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allocation of water to CVP contractors, and potential operational and water

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supply impacts associated with the Trinity River flow augmentation;

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including projected temperature impacts in 2014 to the Sacramento River.

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Defendant-Intervenors Pacific Coast Federation of Fisherman’s Associations,
Institute for Fisheries Resources, The Hoopa Valley Tribe and Yurok Tribe:

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A.

Josh Strange: Josh Strange will testify about 1) his experience with the

Klamath River fish kill, 2) Ich biology and pathology, 3) the natural

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conditions, rationale, evidence supporting, and decision to recommend

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augmented fall flows, 4) the need for and projected effects of augmented

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410 SEVENTEENTH STREET, SUITE 2200
DENVER, CO 80202-4432

Klamath and Trinity River fisheries and the causative factors of the 2002

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BROWNSTEIN HYATT FARBER SCHRECK, LLP

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flows in 2013, and 5) the likelihood of non-target negative impacts from

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the necessary flows.

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B.

Michael Belchik: Michael Belchik will testify about 1) his direct

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experience with and subsequent research of the 2002 catastrophic fish kill

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event on the Klamath River, 2) his direct experience and research of 2013

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and prior year river and fish conditions, 3) identifying photos he took of the

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fish kill, 4) update of current Trinity and Klamath River temperature and

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weather conditions, 5) Indian fisheries management and long term effects

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on fish production from a fish kill, and 6) research, rationale, and the need

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for augmented flows to protect anadromous species.

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C.

Michael Orcutt: Orcutt will testify regarding matters in his declaration

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(Doc. 46), the declaration of George Kautsky (Doc. 56), and regarding

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Indian fishing and fish resources.

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Plaintiffs:

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WILL CALL

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A.

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Charles Hanson:

Mr. Hanson is a principal in the firm of Hanson

Environmental, Inc., and has three decades’ experience in matters related to

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the status of fish species in the Klamath and Trinity Rivers and the

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Sacramento River and Sacramento-San Joaquin Delta.

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expected to testify regarding the potential mechanisms contributing to the

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risk of fish die-offs in the lower Klamath River and lack of scientific data

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on this issue; the potential efficacy, or lack thereof, of the Excess Releases

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planned by the Federal Defendants in 2013 to mitigate against the potential

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risk of high mortality of the adult fall-run Chinook salmon; the potentially

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significant adverse effects of the Excess Releases on biological resources;

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and the aquatic communities and fish species in the Trinity, Klamath and

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Mr. Hanson is

Sacramento Rivers generally.

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410 SEVENTEENTH STREET, SUITE 2200
DENVER, CO 80202-4432

BROWNSTEIN HYATT FARBER SCHRECK, LLP

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MAY CALL

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B.

Russ Freeman: Mr. Freeman has served as Supervisor of Resources at

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Westlands Water District (“Westlands”) for twelve years. Mr. Freeman

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has a Bachelor of Science degree in civil engineering from University of

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California, Davis, and is a licensed engineer in the state of California. Mr.

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Freeman is expected to testify regarding the various water supply sources

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available to Westlands, Westlands’ CVP supply allocation for the 2013-

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2014 water year and Westlands’ expectations for the 2014-2015 water year.

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Mr. Freeman is further expected to testify regarding the demands of

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Westlands’ customers, and the consequences of reduced CVP allocations to

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the Westland customers and their employees.

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C.

James Snow: Mr. Snow is a professional engineer and has a Bachelor of

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Science degree in civil engineering from California State University,

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Sacramento. Mr. Snow has extensive knowledge of the Central Valley

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Project’s (“CVP”) operations and the water supply available to the CVP.

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Mr. Snow monitors the Bureau of Reclamation’s (“Reclamation”)

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operation of the CVP and its forecast of the CVP operations for Westlands.

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Mr. Snow is expected to testify regarding the likely effects of
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Trinity River in August and September 2013 in an amount up to 109,000

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acre-feet on CVP operations and its effect on the CVP allocation to south

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of Delta water users. Specifically, Mr. Snow is expected to testify that if

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Reclamation did not make the Excess Releases, that water could be used to

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restore 2013 allocations to south-of-Delta agricultural water users whose

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allocation was cut by 5% at the beginning of the year. Mr. Snow is further

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expected to testify that as the Trinity Reservoir is not expected to refill in

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2014, the hole in the Trinity Reservoir created by the Excess Releases will

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likely cause the CVP contract allocations to south-of-Delta agricultural

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DENVER, CO 80202-4432

Reclamation’s planned additional releases (the “Excess Releases”) to the

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BROWNSTEIN HYATT FARBER SCHRECK, LLP

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water users to be lower in 2014 than they would be absent the Excess

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Releases. Mr. Snow will also testify that the hole caused by the Excess

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Releases will negatively impact Reclamation’s management of the cold

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water pool in Shasta Reservoir for the benefit of listed endangered salmon

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species.

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2.

The parties stipulate to the qualification of the above identified witnesses. A

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witness may not offer opinion testimony on subjects beyond the scope of the qualifications stated

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in the declaration, unless additional qualifications are established.

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3.

To the extent a party identified a witness who has not yet submitted a declaration

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in this matter, the party identifying such witness will submit a declaration or report for that

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witness by 5:00 pm PDT Monday, August 19, 2013.

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4.

The parties agree to file and serve their Exhibit Lists and serve electronic copies of

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their exhibits by 5:00 pm PDT Monday, August 19, 2013. Electronic copies of the exhibits may

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be made available on a file transfer protocol (“FTP”) site or exchanged on a flash drive, cd or

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other media by the deadline. The exhibit lists will identify those exhibits to be used for each

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party’s case-in-chief, but need not include exhibits that may be used for demonstrative, cross-

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examination and/or rebuttal purposes. The parties agree to make a good faith effort to identify

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those exhibits to be used solely for cross-examination and/or rebuttal purposes as soon as
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practicable, but failure to identify such exhibits prior to their use will not preclude a party’s use

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thereof subject to the Court’s ruling on any objections. The parties further agree that any power

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point or demonstrative exhibit presented during opening statements or closing arguments will not

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be admissible as evidence unless identified on the party’s exhibit list prior to the hearing. The

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parties agree to an exhibit naming convention whereby each party will choose a unique set of

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letters to identify itself followed by the exhibit number, e.g., Plaintiffs will use SL-1 to SL-25.

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Each party will therefore start with exhibit “1” and proceed numerically. A party presenting a

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witness will not be responsible for providing paper copies of exhibits used with the witness to

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counsel for the other parties during the hearing, unless the exhibit was not provided to other

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410 SEVENTEENTH STREET, SUITE 2200
DENVER, CO 80202-4432

BROWNSTEIN HYATT FARBER SCHRECK, LLP

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counsel electronically on August 19, 2013.
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The parties agree to file and serve any objections to other parties’ exhibits, except

relevancy objections, no later than Noon PDT Tuesday, August 20, 2013.
6.

The parties agree to provide notice to the Court by August 20, 2013 of the parties’

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proposal regarding time allocation. Federal Defendants and Defendant-Intervenors will present

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their case-in-chief first in light of the Court’s August 14, 2013 Order directing the Federal

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Defendants to appear and Show Cause.

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7.

In addition to the foregoing live testimony, the parties further stipulate that the

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previously submitted declarations may be considered as evidence in the Show Cause hearing

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pursuant to Fed. R. Civ. P. 43(c), and further that the parties will not raise a hearsay objection

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against the admissibility of such declarations on the grounds that the declaration is a statement

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that was made other than while testifying at the trial or hearing. In so stipulating, the parties

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against whom the declarations have been offered do not stipulate that the facts stated within the

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declarations are undisputed or waive any other evidentiary objections, including hearsay within

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hearsay objections.

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8.

The parties agree that any declarant may be subpoenaed for cross examination,

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however the parties do not anticipate the need to cross examine all prior declarants. In order to

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provide an opportunity to cross examine key declarants, the parties agree to make available for

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examination without subpoena, any declarant a party has identified as a witness in paragraph 1.
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The parties agree to make both “will call” and “may call” witnesses available all three days of the

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hearing with the exception of Russ Freeman who is not available to testify on August 21, 2013.

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Any party may examine such declarants during their case-in-chief; but should they fail to do so,

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and the witness is not called by the party that identified them, the declaration of that uncalled

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witness/declarant may continue to be used as evidence.

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9.

The parties do not anticipate filing any pre-trial motions.

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SO STIPULATED

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Dated: August 16, 2013

KRONICK, MOSKOVITZ, TIEDEMANN
& GIRARD, A Law Corporation

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/s/ Daniel J. O’Hanlon
DANIEL J. O’HANLON
Attorneys for Plaintiffs
SAN LUIS & DELTA-MENDOTA WATER
AUTHORITY and WESTLANDS WATER
DISTRICT

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410 SEVENTEENTH STREET, SUITE 2200
DENVER, CO 80202-4432

BROWNSTEIN HYATT FARBER SCHRECK, LLP

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Dated: August 16, 2013

BROWNSTEIN HYATT FARBER
SCHRECK, LLP

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/s/ Steven O. Sims (as authorized)
STEVEN O. SIMS
Attorneys for Plaintiff
WESTLANDS WATER DISTRICT

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Dated: August 16, 2013

EARTHJUSTICE

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/s/ Jan Hasselman (as authorized)
JAN HASSELMAN
Attorney for Defendant-Intervenor Applicants
PACIFIC COAST FEDERATION OF
FISHERMENS’ ASSOCIATIONS AND
INSTITUTE FOR FISHERIES RESOURCES

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Dated: August 16, 2013

YUROK TRIBE, OFFICE OF THE TRIBAL
ATTORNEY

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/s/ John Corbett (as authorized)
JOHN CORBETT
Attorneys for Defendant-Intervenor
YUROK TRIBE

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Dated: August 16, 2013

MORISSET, SCHLOSSER, JOZWIAK &
SOMERVILLE

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/s/ Thomas P. Schlosser (as authorized)
THOMAS P. SCHLOSSER
Attorneys for Defendant-Intervenor
HOOPA VALLEY TRIBE

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410 SEVENTEENTH STREET, SUITE 2200
DENVER, CO 80202-4432

BROWNSTEIN HYATT FARBER SCHRECK, LLP

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Dated: August 16, 2013

ANNA K. STIMMEL, Trial Attorney
Environmental & Natural Resources Division
Natural Resources Section and ROBERT G.
DREHER, Acting Assistant Attorney General,
United States Department of Justice,
Environmental & Natural Resources Divisions

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/s/ Anna K. Stimmel (as authorized)
ANNA K. STIMMEL
Attorneys for FEDERAL DEFENDANTS

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IT IS SO ORDERED

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Dated: August 19, 2013.

/s/ Lawrence J. O’Neill
United States District Judge

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1
COUNSEL IDENTIFICATION

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BROWNSTEIN HYATT FARBER
SCHRECK LLP
410 17th Street, Suite 2200
Denver, CO 80202
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff
WESTLANDS WATER DISTRICT

KRONICK, MOSKOVITZ, TIEDEMANN
& GIRARD
400 Capitol Mall, 27th Floor
Sacramento, CA 95814-4416
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs
SAN LUIS & DELTA-MENDOTA WATER
AUTHORITY; WESTLANDS WATER
DISTRICT

DANIEL J. O’HANLON, SBN: 122380
ERIC N. ROBINSON, SBN: 191781
REBECCA R. AKROYD, SBN: 267305

BROWNSTEIN HYATT FARBER
SCHRECK, LLP

By: s/ Daniel J. O’Hanlon
DANIEL J. O’HANLON
Attorneys for Plaintiffs
SAN LUIS & DELTA-MENDOTA
WATER AUTHORITY; WESTLANDS
WATER DISTRICT

By: s/Steven O. Sims
STEVEN O. SIMS
Attorneys for Plaintiff
WESTLANDS WATER DISTRICT

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410 SEVENTEENTH STREET, SUITE 2200
DENVER, CO 80202-4432

BROWNSTEIN HYATT FARBER SCHRECK, LLP

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DANIEL J. O’HANLON (SBN 122380)
ERIC N. ROBINSON (SBN: 191781)
REBECCA R. AKROYD (SBN 267305)

STEVE O. SIMS (Admitted Pro Hac Vice)
GEOFFREY M. WILLIAMSON (Admitted
Pro Hac Vice)
MICHELLE C. KALES (Admitted Pro Hac
Vice)

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