AquAlliance et al v. United States Bureau of Reclamation et al

Filing 71

ORDER For Supplemental Briefing; and ORDER Denying Without Prejudice Request For Temporary Restraining Order 68 , signed by District Judge Lawrence J. O'Neill on 7/7/2014. (Hearing set July 10, 2014 is VACATED.) (Gaumnitz, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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AQUALLIANCE, a non-profit corporation, and
CALIFORNIA SPORTFISHING PROTECTION
ALLIANCE, a non-profit corporation,

Case No. 1:14-CV-000945-LJO-BAM
OREDER FOR SUPPLEMENTAL
BRIEFING; AND

Plaintiffs,
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v.

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UNITED STATES BUREAU OF RECLAMATION,
a federal agency; RICHARD J. WOODLEY, in his
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capacity; and DAVID MURILLO, in his official
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ORDER DENYING WITHOUT
PREJUDICE REQUEST FOR
TEMPORARY RESTRAINING
ORDER (DOC. 68)

Defendants,
SAN LUIS & DELTA-MENDOTA WATER
AUTHORITY, et al.,
Defendant-Intervenors.

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Plaintiffs Aqualliance and the California Sportfishing Protection Alliance (“Plaintiffs”), both
non-profit environmental organizations, bring this lawsuit against the United States Bureau of
Reclamation (“Reclamation” or “the Bureau”), as well as various federal officers (collectively, “Federal
Defendants”), alleging that the Bureau violated the National Environmental Policy Act (“NEPA”), 42
U.S.C. § 4321, et seq, by approving the “2014 San Luis & Delta-Mendota Water Authority Water
Transfer Project” (the “2014 Transfer Project”), which would permit water rights holders or contractors
north of the Sacramento-San Joaquin Delta (“Delta”) to sell water to members of the San Luis & DeltaMendota Water Authority (“SLDMWA”), whose members then would make use of the water in areas
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that lie south of the Delta. Doc. 1 (“Compl.”) at ¶ 57. The Bureau’s role would be to review any

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proposed transfers and facilitate those transfers by conveying the water through the Delta by way of the

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Jones and Banks Pumping Plants and the Delta-Mendota Canal. Id.

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In April 2014, the Bureau issued an Environmental Assessment (“EA”) and approved a Finding

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of No Significant Impact (“FONSI”) for the 2014 Transfer Project under NEPA. Among other things,

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the EA and FONSI state that “[s]pecial status fish species,” such as the Delta smelt, “are generally not in

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the Delta during the transfer period (July-September) and effects to these fish species from transferring

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water during this timeframe were considered in the [National Marine Fisheries Service and U.S. Fish

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and Wildlife Service Biological Opinions].” Allen Decl., Ex. 2 (“Final EA”), Doc. 34, at 3-13; id., Ex. 3

10 (“FONSI”) at 8.
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Having thoroughly reviewed the briefs and supporting documents filed thus far in connection

12 with the pending motion for preliminary injunctive relief, the Court finds that supplemental briefing is
13 required to resolve accurately the threshold question of whether there is a likelihood of success on the
14 merits on Plaintiffs’ challenge to the substance of the EA sufficient to meet the requirements of the
15 Ninth Circuit’s sliding scale injunctive relief test. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d
16 1127, 1131 (9th Cir. 2011).
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In the Ninth Circuit, an EA may be invalidated where it “fails to address certain crucial factors,

18 consideration of which is essential to a truly informed decision whether or not to prepare an EIS.” In
19 Def. of Animals, Dreamcatcher Wild Horse & Burro Sanctuary v. U.S. Dep't of Interior, 751 F.3d 1054,
20 1072 (9th Cir. 2014). In Foundation for the North American Wild Sheep v. U.S. Department of
21 Agriculture, 681 F.2 1172, 1174-75, 1178-80 (9th Cir. 1982), for example, the USDA issued an EA
22 approving the reconstruction of two mining access roads through an area occupied by one of the few
23 remaining herds of desert bighorn sheep. Among other things, the EA failed to estimate the amount of
24 traffic expected on the road or consider the fact that the road passed close to a “mineral lick” used by the
25 bighorn. Id. at 1178-79. “The absence of this crucial information render[ed] a decision regarding the
26 sheep's reaction to the traffic on [the road] is necessarily uninformed.” Id. at 1181. In contrast,
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Greenpeace Action v. Franklin, 14 F.3d 1324, 1333 (9th Cir. 1992), concerned an EA approving the

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National Marine Fisheries Service’s (“NMFS”) approval of a plan to regulate fishing in an area

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populated by the Stellar sea lion. While Greenpeace’s evidence demonstrated that there was uncertainty

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as to how the fishing would affect the sea lion and that NMFS did not prove harm to the sea lion was

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impossible, the Ninth Circuit refused to set aside NMFS’s decision because to do so would require the

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Court to decide that the views of Greenpeace’s experts have more merit than those of NMFS. Id. at

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1333.

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Here, the Court believes that Plaintiffs’ challenge to the content of the EA amounts to an

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assertion that the EA fails to acknowledge a “crucial factor,” namely that delta smelt will be located in

10 the Delta this summer. The record now before the Court establishes that at least some delta smelt will be
11 drawn into the Delta this summer, although what portion of the population will be in the Delta and how
12 far into the Delta that portion will be drawn is disputed. The record also establishes that a scientific
13 dispute exists with regard to whether those smelt that are drawn into the Delta will be adversely
14 impacted by the 2014 Transfer Project. At least with respect to the likelihood of success on the merits
15 inquiry, the Court must defer to agency experts where scientific disputes exist. Ranchers Cattlemen
16 Action Legal Fund v. U.S. Dep't of Agric., 415 F.3d 1078, 1093 (9th Cir. 2005) (finding that, in granting
17 a preliminary injunction, “the district court committed legal error by failing to respect the agency's
18 judgment and expertise”). The Parties are therefore asked, for the sake of this order only, to assume that
19 the Court must resolve this dispute by finding that the smelt will, in fact, not be “significantly impacted”
20 for NEPA purposes by the 2014 Transfer Project. The Parties are also asked to assume that, under
21 Greenpeace, this requires a finding that Reclamation has not failed to address a “crucial factor,” because
22 the presence of some portion of the smelt in the Delta cannot be “crucial” if the Court must side with
23 Federal Defendants’ expert evaluation that such circumstances will not cause a “significant impact.”
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Nonetheless, the lack of analysis in the EA raises separate NEPA compliance issues. An EA is

25 meant to be a “concise public document ... that serves to,” among other things “[b]riefly provide
26 sufficient evidence and analysis for determining whether to prepare an environmental impact statement
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or a finding of no significant impact.” 40 C.F.R. § 1508.9. An EA is “unacceptable” if it is

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“indecipherable to the public.” Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d

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989, 996 (9th Cir. 2004). Here, the EA’s discussion of the key issues is limited to the following:

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The Proposed Action would result in increased conveyance [of water] through the
Delta during the transfer period (July through September, unless it shifts based on
feedback from NMFS and USFWS). Special status fish species are generally not
in the Delta during the transfer period (July-September) and effects to these fish
species from transferring water during this timeframe were considered in the
[National Marine Fisheries Service (NMFS) and U.S. Fish and Wildlife Service
(FWS) Biological Opinions]. Transfers would slightly increase inflow into the
Delta, but would not change outflow conditions as compared to the No Action
Alternative. The incremental effects of transfers on special status fish species in
the Delta from water transfers would be less than significant.

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Final EA at 3-13 (emphasis added). It is permissible for Reclamation to incorporate by reference the
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reasoning contained in an ESA document, Nw. Envtl. Def. Ctr. v. Nat'l Marine Fisheries Serv., 647 F.
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Supp. 2d 1221, 1247 (D. Or. 2009), and Reclamation clearly incorporates by reference into the Final EA
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the content of the 2008 Fish and Wildlife Service’s Endangered Species Act (“ESA”) Biological
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Opinion (“2008 BiOp”). Reclamation also points to numerous post-2008 BiOp ESA consultation
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documents that purport to update the findings of the 2008 BiOp by addressing more recent
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developments. Yet, on its face, the EA fails to reference any of these updates. Nor does the EA
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acknowledge that the relevant standard under NEPA is legally distinct from that under the ESA. How
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then is this EA not indecipherable to the public on the subject of the significance of impacts to smelt in
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the Delta? To what extent is the need for decipherable discussion of that subject in the EA obviated by a
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finding under Greenpeace that omission of discussion of impacts to smelt in the Delta is not an omission
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of a “crucial factor”? The Parties are directed to address those questions in writing on or before 5:00
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p.m., Wednesday, July 9, 2014. To permit the Court time to digest this supplemental briefing, the
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hearing currently set for July 10, 2014 is VACATED. The Court will reset the hearing as appropriate in
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consultation with the Parties.
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The Court is aware that Reclamation is likely to begin transferring water under the 2014 Transfer
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Project at the rate of 100 cubic feet per second (“cfs”), perhaps as early as today, July 7, 2014. There is
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no indication in the record that such a small flow alteration will cause immediate injury to the smelt,

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permitting the short delay in the proceedings caused by this supplemental briefing request. For the same

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reason, the request for a temporary restraining order, filed earlier today, is DENIED WITHOUT

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PREJDUDICE.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

July 7, 2014

UNITED STATES DISTRICT JUDGE
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