California Natural Resources Agency, et al. v. Ross, et al.

Filing 357

ORDER GRANTING IN PART REQUEST TO EXTEND INTERIM OPERATIONS PLAN; DENYING ALL OTHER ALTERNATIVE REQUESTS FOR RELIEF; DENYING MOTION TO STRIKE AS MOOT; AND CONTINUING STAY signed by District Judge Jennifer L. Thurston on March 28, 2024. (Docs. 336, 338, 354) (Munoz, I)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:20-cv-00431 JLT EPG

PACIFIC COAST FEDERATION OF
FISHERMEN’S ASSOCIATIONS, et al.,

ORDER GRANTING IN PART REQUEST
TO EXTEND INTERIM OPERATIONS
PLAN; DENYING ALL OTHER
ALTERNATIVE REQUESTS FOR RELIEF;
DENYING MOTION TO STRIKE AS
MOOT; AND CONTINUING STAY.

Plaintiffs,
v.
GINA RAIMONDO, et al.,

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Defendants.

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Case No. 1:20-cv-00426 JLT EPG

THE CALIFORNIA NATURAL
RESOURCES AGENCY, et al.,

ORDER GRANTING IN PART REQUEST
TO EXTEND INTERIM OPERATIONS
PLAN; DENYING ALL OTHER
ALTERNATIVE REQUESTS FOR RELIEF;
DENYING MOTION TO STRIKE AS
MOOT; AND CONTINUING STAY.

Plaintiffs,

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(Docs. 482, 492, 497, 506, 508)

v.
GINA RAIMONDO, et al.,
Defendants.

(Docs. 336, 338, 354)

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I.

INTRODUCTION

These related cases involve challenges to a pair of “biological opinions” (BiOps) issued

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by the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS)

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in 2019 pursuant to the Endangered Species Act (ESA), 16 U.S.C § 1531 et seq. The 2019 BiOps
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address the impact on various ESA-listed species of implementing an updated plan issued by the

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U.S. Bureau of Reclamation (Reclamation) and California’s Department of Water Resources

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(DWR) for the long-term operation of the Central Valley Project (CVP) and the State Water

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Project (SWP) (collectively, “Water Projects” or “Proposed Action”). FWS’s 2019 BiOp

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addresses Water Project impacts on the ESA-listed delta smelt; NMFS’s 2019 BiOp addresses

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impacts on various other aquatic species, including several salmonid species discussed in this

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order.
Plaintiffs1 in both cases allege that NMFS and FWS violated the Administrative Procedure

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Act (APA), 5 U.S.C. § 706, in various ways by concluding that the Water Projects would not

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jeopardize the continued existence of the ESA-listed species addressed in each biological opinion.

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(PCFFA Doc. 52; CNRA Doc. 51.)2 Both sets of Plaintiffs also bring claims against Reclamation

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under the ESA and the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq,

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challenging Reclamation’s adoption and implementation of the Proposed Action (Id.)3 The State

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Plaintiffs’ complaint in CNRA also alleges that Reclamation has violated the APA by failing to

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comply with the California Endangered Species Act (CESA), conformance with which State

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Plaintiffs maintain is required by various provisions of federal law. (CNRA Doc. 51 (CNRA FAC),

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¶¶ 145–54.)

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In late 2021 and early 2022, when this case was assigned to U.S. District Judge Dale A.

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Drozd, the parties briefed a highly complex set of motions, including motions for voluntary

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remand without vacatur, a request made by Federal Defendants and State Plaintiffs to impose a

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stipulated package of interim injunctive relief measures in the CNRA case that would govern

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Plaintiffs in Pac. Coast Fed’n of Fishermen’s Ass’ns v. Ross, 1:20-cv-00431-JLT-EPG (PCFFA), are a coalition of
six environmental organizations (collectively referenced herein as “PCFFA”). Plaintiffs in Cal. Natural Res. Agency
v. Ross, No. 1:20-cv-00426-JLT-EPG (CNRA), are the People of the State of California, California’s Natural
Resources Agency, and California’s Environmental Protection Agency (State Plaintiffs).
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Hereinafter, the Court will omit the “PCFFA” designation from record documents in that case but will continue to
distinguish documents of record in the CNRA case by retaining the “CNRA” designation when citing documents from
CNRA.
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Collectively, NMFS, FWS, and Reclamation, along with the individual named heads of those agencies, are
referenced as “Federal Defendants.”

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operations for the remainder of the 2022 “Water Year” (WY)4, and what was effectively a cross-

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motion filed by PCFFA to impose a competing package of interim injunctive measures. In a 122-

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page, detailed order issued on March 11, 2022, Judge Drozd granted the motion for voluntary

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remand without vacatur of the challenged BiOps, approved the stipulated interim operations plan

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(2022 IOP), denied PCFFA’s competing injunctive relief requests, and stayed the case through

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September 30, 2022. (Doc. 394 (2022 IOP Order).)

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The parties filed status reports toward the end of WY 2022. (Docs. 404–406.)

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Recognizing that the remand (and associated revisions to the BiOps and related documents) is not

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anticipated to be complete until 2024 (see Doc. 406 at 3), Federal Defendants and State Plaintiffs

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proposed extending the IOP (the 2023 IOP), with some modifications, through December 31,

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2023. (See generally Doc. 406.) On February 24, 2023, the Court approved the proposed 2023

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IOP, rejected all alternative forms of relief, and continued the stay of these matters through

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December 31, 2023. (Docs. 462 (2023 IOP Order), 463.)

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As instructed by the Court, in mid-November 2023, the parties filed a joint status report

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that once again reiterated that remand is not anticipated to be complete until late 2024 (see Doc.

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482 at 4) and proposing a schedule that would allow the Court to consider a request to extend the

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IOP for an additional year. (Doc. 467.) The Court issued a briefing schedule (Doc. 479) and

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shortly thereafter continued the operation of the 2023 IOP and the stay through the end of March

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2024 (Doc. 483). The final briefs were filed in early March 20245 and the parties all agreed that

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no evidentiary hearing was needed. (Doc. 503.) Having considered the filings submitted by all

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parties (Docs. 482, 485–96, 500–501, 504–510; CNRA 338, 348) and the entire extensive record,

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the Court GRANTS IN PART the motion to extend the IOP (Doc. 482); DENIES all other

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proposed forms of interim relief; DENIES AS MOOT Federal Defendants’ motion to strike

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(Doc. 508); and CONTINUES the STAY of these cases through the issuance of a new Record of

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Decision or December 20, 2024, whichever is first.

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A “Water Year” runs from October 1 of the preceding calendar year through September 30 of the current calendar
year. (See 11/23/21 Grober Decl., CNRA Doc. 223, ¶ 26.)
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Documents continued to be filed through the end of March, including a motion to strike, response, and reply. (Docs.
508–10.)

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II.

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BACKGROUND6

In the interest of expedience, the Court provides here only that background information

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which is most essential to explaining and understanding its reasoning herein. The 2022 and 2023

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IOP Orders provide additional, highly detailed background. To fully understand the reasoning

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presented below, a review of those prior orders is recommended.

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A.

The Endangered Species Act7
“Under the ESA, the Secretary of the Interior and the Secretary of Commerce are charged

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with identifying threatened and endangered species and designating critical habitats for those

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species.” Nat. Res. Def. Council v. Jewell, 749 F.3d 776, 779 (9th Cir. 2014) (NRDC v. Jewell)

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(citing 16 U.S.C. § 1533). FWS and NMFS administer the ESA on behalf of the Departments of

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the Interior and Commerce, respectively. See 50 C.F.R. §§ 17.11, 222.101(a), 223.102, 402.01(b).

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Most pertinent to these cases is Section 7 of the ESA. 16 U.S.C. § 1536 (Section 7). Section

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7(a)(2) imposes a procedural duty on the federal agencies to consult with the FWS or NMFS,

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depending on the protected species,8 to “insure that any action authorized, funded, or carried out

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by such agency . . . is not likely to jeopardize the continued existence of any endangered species

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or threatened species or result in the destruction or adverse modification” of critical habitats of

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listed species. 16 U.S.C. § 1536(a)(2). An agency “action” is defined to mean all activities carried

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out by federal agencies, including, among other things, the granting of licenses and permits. See

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50 C.F.R. § 402.02. “If a contemplated agency action may affect a listed species, then the agency

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must consult with the Secretary of the Interior, either formally or informally.” Am. Rivers v.

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For simplicity and to ensure clarity of the record, the Court refers to declarations by their date, followed by the
declarant’s last name. The first time any declaration is referenced, the Court has endeavored to provide the Docket
Number.
Though other statutes are implicated in these cases, the ESA forms the core of the parties’ arguments and therefore
is the focus of the court’s attention. Relevant aspects of other statutes are discussed as necessary.
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Generally, FWS has jurisdiction over species of fish that either (1) spend the major portion of their life in fresh
water, or (2) spend part of their lives in estuarine waters, if the remaining time is spent in fresh water. See Cal. State
Grange v. Nat’l Marine Fisheries Serv., 620 F. Supp. 2d 1111, 1120 n. 1 (E.D. Cal. 2008), as corrected (Oct. 31,
2008). NMFS is granted jurisdiction over fish species that (1) spend the major portion of their life in ocean water, or
(2) spend part of their lives in estuarine waters, if the remaining portion is spent in ocean water. Id. Relevant to the
cases before the court, FWS exercises jurisdiction over the delta smelt; NMFS exercises jurisdiction over the winterrun and spring-run and the CV steelhead.

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NMFS, 126 F.3d 1118, 1122 (9th Cir. 1997).

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Formal consultation results in the issuance of a BiOp by the relevant wildlife agency

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(FWS or NMFS). See 16 U.S.C. § 1536(b). If the BiOp concludes that the proposed action would

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jeopardize the species or destroy or adversely modify critical habitat, see id. § 1536(a)(2), then

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the action may not go forward unless the wildlife agency can suggest a “reasonable and prudent

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alternative[]” (RPA) that avoids jeopardy, destruction, or adverse modification. Id.

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§ 1536(b)(3)(A). If a BiOp concludes that the proposed action (or the action implemented in

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conjunction with actions described in the RPA) will cause incidental taking of protected species,

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but that despite this taking, the action will not jeopardize the species or threaten critical habitat,

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the wildlife agency

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shall provide the Federal agency and the applicant concerned, if any
with a written statement that—

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(i) specifies the impact of such incidental taking on the species,

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(ii) specifies those reasonable and prudent measures that the
Secretary considers necessary or appropriate to minimize such
impact,

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(iii) . . . , and

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(iv) sets forth the terms and conditions (including, but not limited to,
reporting requirements) that must be complied with by the Federal
agency or applicant (if any), or both, to implement the measures
specified under clauses (ii) and (iii).

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Id. § 1536(b)(4). This required written statement, with its “reasonable and prudent measures”

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(RPMs) and associated terms and conditions, is referred to as an “Incidental Take Statement”

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(ITS), which, if followed, exempts the action agency from the prohibition on takings found in

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Section 9 of the ESA. Id. § 1536(o); Aluminum Co. of Am. v. Adm’r, Bonneville Power Admin.,

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175 F.3d 1156, 1159 (9th Cir. 1999).

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B.

Listed Species at Issue

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The winter-run and spring-run Chinook salmon (Oncorhynchus tshawytscha), and

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California Central Valley (CV) steelhead (Oncorhynchus mykiss), are “anadromous” fish,

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meaning that they live most of their lives in salt water, but “are born, mature, lay eggs, and often

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die in inland freshwater lakes and rivers.” San Luis & Delta-Mendota Water Auth. v. Locke, 776
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F.3d 971, 986–87 (9th Cir. 2014) (San Luis v. Locke).

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After they grow from fry (baby fish) to smolts (juvenile fish) in fresh
water, anadromous salmon outmigrate through rivers and deltas into
the oceans and seas where they will spend most of their adult lives.
When it is time to reproduce, these salmon migrate back through the
deltas to the rivers and lakes in which they were born to lay eggs.
During this migration, salmon must pass impediments in inland
rivers such as locks, dams, channels, and pumps.

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Id. at 987.

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Winter-run Chinook salmon (winter-run) are listed as endangered under the ESA. (Doc.

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85-2 (2019 NMFS BiOp) at p. 659.) Before construction of Shasta Dam, the winter-run had access

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to the Sacramento River upstream of Shasta Dam’s present location and to the upper tributaries

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where springs provided cold water throughout the summer. (Id. at pp. 69–70.) Shasta Dam and

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Keswick Dam (a smaller, regulating dam that sits nine miles downstream of Shasta) now block

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access to this extensive former spawning habitat of the winter-run. (Id. at p. 70.) As a result, the

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only wild population of winter-run spawns exclusively in the reaches of the Upper Sacramento

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River below Keswick Dam and this “single population . . . has been supported by cold water

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management operations at Shasta Dam.” (Id.) Generally, winter-run adults migrate upstream

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through the San Francisco Bay-Delta region during the winter and spring months and spawn in

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the upper Sacramento River in the summer months. (Id. at pp. 70–71.) The ocean stage of the

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winter-run life cycle typically lasts three years. (PCFFA, Doc. 85-18 (2009 NMFS BiOp) at p.

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87.)10

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The Delta smelt (Hypomesus transpacificus) is a “small, two-to-three inch species of fish

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endemic to the San Francisco Bay/Sacramento–San Joaquin Delta Estuary [(Delta)].” San Luis &

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Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 595 (9th Cir. 2014) (San Luis v. Jewell). In

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1993, FWS concluded the Delta smelt’s population had declined by ninety percent over the

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previous twenty years and listed it as a “threatened” species under the ESA. Determination of

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Threatened Status for the Delta Smelt, 58 Fed. Reg. 12,854, 12,855–56 (Mar. 5, 1993).

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Where the Court references a record document’s internal pagination, it refers to the page as “p. __.” Otherwise,
page references are to the .pdf page reference provided by the Court’s CM/ECF system.
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Spring-run Chinook salmon and CV steelhead—species discussed at some length in the 2022 IOP Order—are not
focal points of the analysis herein.

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The Longfin smelt (Spirinchus thaleichthys) is a small translucent silver fish with olive-

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to-grayish-brown markings and pinkish iridescence. (CNRA FAC, ¶ 38.) Longfin smelt exhibit a

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predominantly two-year life cycle and reach lengths of 90–124 mm, though some live a third year

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and grow somewhat larger. (Id.) They are known to inhabit the entire San Francisco estuary. (Id.)

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Larvae hatch during the coldest water temperatures of the year, become abundant in January,

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typically peak in February, and decline March through May. (Id., ¶ 39.) Mature fish migrate

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upstream to Suisun Bay and the western Sacramento-San Joaquin Delta in preparation for

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spawning. (Id.) According to the CNRA FAC: “Water quality in the longfin smelt incubation and

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early nursery areas of the Sacramento-San Joaquin Delta and Suisun Bay is critical for the San

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Francisco estuary population. Eggs, larvae, and small juvenile longfin smelt require adequate

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winter-spring river flows from spawning habitat and require suitable brackish-water rearing

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habitat.” (Id.)

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The Longfin smelt population has experienced a “long term declining trend” in

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abundance, with data suggesting a relationship between higher abundance and higher outflow.

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(12/22/23 Baxter Decl., Doc. 482-7, ¶¶ 11-13.) 11 Longfin smelt have been listed under CESA

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since 2009, Cal. Code Regs. tit. 14, § 670.5(b)(2)(E), and were formally proposed for listing

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under the ESA on October 7, 2022, 87 Fed. Reg. 60957 (Oct. 7, 2022). As of the date of this

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Order, listing under the federal ESA has not been finalized.

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Given the pending listing, Federal Defendants indicate they are conferring with FWS on

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the CVP’s effects on longfin smelt in a process called “conferencing” as part of the ongoing

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remand. See 50 C.F.R. § 402.10; (see also 12/22/23 White Decl., Doc. 482-3, ¶ 13). Under this

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procedure, if FWS has not made a final listing determination when the reinitiated CVP

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consultation concludes, then FWS will provide the results of the conference so that it may later be

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adopted as the biological opinion and incidental take statement for Longfin smelt if the species

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ultimately is listed under the ESA. 50 C.F.R. § 402.10(d)-(e). If Longfin smelt are listed before

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Defendant Intervenors’ declarant, Dr. Hanson, indicates that there has been a “substantial decline” in the
correlation between Longfin abundance and outflow, (Hanson 1/31/24 Decl., Doc. 486, ¶ 18), but nonetheless does
not dispute the existence of a correlation. The Court agrees with State plaintiffs that this is ultimately a dispute over
the magnitude of the correlation. (See Doc. 348 at 8.)
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the remand, then FWS may cover the species in the biological opinion and incidental take

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statement in accordance with 50 C.F.R. § 402.14. (See also 12/22/23 Allen Decl., Doc. 482-5, ¶

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8.)

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C.

Overview of the Water Projects and Impacts on Listed Species

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The CVP and the SWP, “operated respectively by [Reclamation] and the State of

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California, are perhaps the two largest and most important water projects in the United States.”

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San Luis v. Jewell, 747 F.3d at 592. “These combined projects supply water originating in

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northern California to more than 20,000,000 agricultural and domestic consumers in central and

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southern California.” Id. As one part of CVP operations, Reclamation releases water stored in

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CVP reservoirs in northern California; this water then flows down the Sacramento River to the

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Delta. See id. at 594. Pumping plants in the southern region of the Delta (South Delta) then divert

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the water to various users south of the Delta. See id. at 594–95.
“Although the [Water] Projects provide substantial benefits to people and to state

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agriculture, they arguably harm species native to the Delta by modifying those species’ natural

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habitats.” San Luis v. Locke, 776 F.3d at 986. The Water Projects do so in several ways. First, as

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mentioned, the dams that make the CVP and SWP possible have blocked access to the colder

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water upstream spawning and rearing habitat of migratory fish species. Nat. Res. Def. Council v.

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Norton, 236 F. Supp. 3d 1198, 1204 (E.D. Cal. 2017) (NRDC v. Norton). This has limited (and in

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some cases all but eliminated) spawning and rearing habitat for these species and confined certain

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populations to spawning areas where flows and temperatures are largely controlled by releases

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from upstream dams. See id.
In addition, the Water Projects pump fresh water out of the “Old and Middle River”

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(OMR) branches of the San Joaquin River in volumes sufficient to reverse the flow in OMR. Id.

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at 996. “Absent pumping, [these] rivers would flow north into the Delta.12 Under pumping

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The hydrodynamics of the Delta are highly complex and are influenced by, among other things, inflow from the
various watersheds that drain into the Delta, Water Project actions, and tidal influences. (See 2019 NMFS BiOp at p.
148 (“There are two primary categories of effects in the south Delta due to water export: (1) salvage and entrainment
at the south Delta export facilities, and (2) water-project-related changes to south Delta hydrodynamics that may
reduce the suitability of the south Delta for supporting successful rearing or migration of salmonids and sturgeon
from increased predation probability and exposure to poor water quality conditions. Key water-project-related drivers
of south Delta hydrodynamics are Vernalis inflow, CVP and SWP exports from the south Delta export facilities and

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operations, the rivers flow south to the [CVP’s] Jones and [SWP’s] Banks pumping plants.” San

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Luis v. Locke, 776 F.3d at 986. Listed species—particularly juveniles—can be caught in the

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negative current and drawn towards the pumping facilities. Id. Some of these fish are “salvaged”

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at the pumps, “meaning they are diverted from the fatal pumping plants to fish salvage facilities

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and into tanks where they are counted, measured, loaded into trucks, driven north, and dumped

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back into the Delta.” Id. But even if salvaged, fish that are drawn towards the pumps by the

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“negative OMR” flow have a lower likelihood of surviving outmigration than their counterpoints

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that avoid “entrainment”13 by Water Project operations. Id. “The collection of fish of concern at

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the export facilities is a clear indicator that fish have been diverted from their migratory paths into

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the channels of the south Delta.” (11/23/21 Herbold Decl., CNRA Doc. 224, ¶ 39.) For example,

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when the Delta smelt was listed as endangered, “Delta water diversions,” including those

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resulting from operations of the CVP and SWP, were deemed a significant “synergistic cause[ ]”

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of the decline in the population. 58 Fed. Reg. at 12,859.

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D.

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2008/2009 Biological Opinions
The Water Projects have undergone numerous rounds of review under the ESA, resulting

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in BiOps issued by FWS and NMFS that have imposed various forms of regulatory constraints

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upon Water Project operations. These BiOps have also been the subject of numerous lawsuits that

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form the backdrop for the present disputes.

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A 2008 FWS BiOp concluded that “CVP/SWP operations have entrained smelt, including

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adults, larvae, and juveniles, at the Banks and Jones facilities; reduced smelt habitat; and reduced

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[ ] Delta outflows, altering the location of the [Low Salinity Zone]14.” Id. at 598. The 2008 FWS

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construction of agricultural barriers; these drivers interact with tidal influences over much of the central and southern
Delta. In day-to-day operations, these drivers are often correlated with one another (for example, exports tend to be
higher at higher San Joaquin River inflows) and regulatory constraints on multiple drivers may simultaneously be in
effect.”).)
“Entrainment consists of two parts; the capture of fish at the export facilities’ fish screens and the much larger, but
uncounted, loss of fish diverted off their migratory paths and into channels of the south Delta where predation is
high.” (11/23/21 Herbold Decl., CNRA Doc. 224, ¶ 39.)
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“Two related standards are used to describe the salinity of the Bay–Delta. The first is the Low Salinity Zone or
LSZ. The LSZ is the transition point between the freshwater of the inland rivers and brackish water flowing eastward
from San Francisco Bay and the Pacific Ocean and includes water ranging in salinity from 0.5 parts per thousand to
six parts per thousand. The second is referred to as X2. X2 represents the point in the Bay–Delta at which the salinity
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BiOp recommended a suite of actions (a reasonable and prudent alternative, or “RPA” in the

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parlance of the ESA) designed to protect against the harm the water projects would otherwise

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cause to delta smelt. (See Doc. 85-17 (2008 FWS BiOp) at pp. 279–85.) That RPA included

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measures to limit how “negative” OMR flows could become and other actions designed to

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provide sufficient Delta outflow to maintain Delta smelt habitat conditions. (See id. at pp. 281–

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83.)
Similarly, an NMFS 2009 BiOp concluded that “the long-term operations of the CVP and

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SWP are likely to jeopardize the continued existence” of and “destroy or adversely modify”

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critical habitat for winter-run, spring-run, and CV steelhead. (See 2009 NMFS BiOp at p. 575.)

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That BiOp also included an RPA designed to allow the projects to continue operating without

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causing jeopardy to the species or adverse modification to its critical habitat. (Id. at pp. 575–671.)

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The 2009 NMFS BiOp provided a succinct overview of that 2009 NMFS RPA, pertinent parts of

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which provide helpful background here:

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Water operations result in elevated water temperatures that have
lethal and sub-lethal effects on egg incubation and juvenile rearing
in the upper Sacramento River. The immediate operational cause is
lack of sufficient cold water in storage to allow for cold demands.
This elevated temperature effect is particularly pronounced in the
Upper Sacramento for winter-run and mainstem spring-run, and in
the American River for steelhead. The RPA includes a new yearround storage and temperature management program for Shasta
Reservoir and the Upper Sacramento River . . . .

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***

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[W]ater pumping causes reverse flows, leading to loss of juveniles
migrating out from the Sacramento River system in the interior Delta
and more juveniles being exposed to the State and Federal pumps,
where they are salvaged at the facilities. The RPA prescribes Old and
Middle River flow levels to reduce the number of juveniles exposed
to the export facilities and prescribes additional measures at the
facilities themselves to increase survival of fish.

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(Id. at pp. 576–77.)15

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E.

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Temperature Management at Shasta Dam under the 2009 NMFS BiOp
Generally, temperature management below Shasta/Keswick Dams involves the release of

is less than two parts per thousand.” San Luis v. Jewell, 747 F.3d at 595 (internal record citations omitted).
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The 2008 FWS and 2009 NMFS BiOps were the subject of numerous lawsuits but were ultimately upheld by the
Ninth Circuit. See San Luis v. Jewell, 747 F.3d 581; San Luis v. Locke, 776 F.3d 971.

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cold water to meet target temperatures at various temperature compliance points (TCPs) along the

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Sacramento River. Keswick Dam is located at River Mile 302. (Doc. 85-12, at p. 2–13.) The

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farthest upstream TCP identified in the 2009 NMFS BiOp is Clear Creek (about 10 river miles

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below Keswick), then Airport Road Bridge (15 river miles below Keswick), Balls Ferry (25 river

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miles below Keswick), and Bend Bridge (44 river miles below Keswick). (Id.) The general

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purpose of these TCPs is to keep water temperatures cool enough to avoid damaging salmon

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eggs, a phenomenon known as “temperature-dependent mortality” (TDM). (See Doc. 85-12 at 4-

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29; 3/5/20 Rosenfield Decl., ¶ 138.)
NMFS’s 2009 BiOp required Reclamation to develop a temperature management plan

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(TMP) by May 15 of each year and to implement Shasta Dam operations so as to achieve daily

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average water temperatures not to exceed 56°[F] between Balls Ferry and Bend Bridge from May

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15 through September 30 for the protection of winter-run, and not in excess of 56°[F] between

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Balls Ferry and Bend Bridge from October 1 through October 31 for the protection of spring-run

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in the mainstem Sacramento River “whenever possible.” (2009 NMFS BiOp at p. 601.) The 2009

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NMFS RPA acknowledged that “extending the range of suitable habitat by moving the

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compliance point downstream from Balls Ferry” must be balanced against the need to conserve

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storage so to accumulate a sufficient cold water pool for use during the subsequent temperature

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management season. (Id. at 602.)

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The 2009 NMFS BiOp also addressed practices related to how much water would be

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carried over in storage at Shasta Reservoir from one year to the next, a concept termed “carryover

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storage,” that is often referred to as “end-of September” or “EOS” storage. It first explained the

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pre-existing approach to carryover storage:

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Before the TCD was built, NMFS required that a 1.9 [million acre
feet (“MAF”)]16 end-of-September (EOS) minimum storage level be
maintained to protect the cold water pool in Shasta Reservoir, in case
the following year was critically dry17 (drought year insurance). This

24
25
26
27
28

16

An acre foot of water is the volume of water required to cover one acre of surface area to the depth of one foot, or
approximately 43,560 cubic feet. United States v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1139 n. 61 (E.D. Cal.
2001).
17

Water Project managers use various scales to describe hydrologic conditions. The most commonly referenced in
this case is the water year type designation for the Sacramento Valley, which is determined by a formula set forth in

11

1

was because a relationship exists between EOS storage and the cold
water pool. The greater the EOS storage level, typically the greater
the cold water pool. The requirement for 1.9 MAF EOS was a
reasonable and prudent alternative (RPA) in NMFS’ winter-run
opinion (NMFS 1992). Since 1997, Reclamation has been able to
control water temperatures in the upper Sacramento River through
use of the TCD. Therefore, NMFS changed the RPA to a target, and
not a requirement, in the 2004 CVP/SWP operations Opinion.

2
3
4
5
6
7
8
9
10
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12
13
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15
16
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18
19
20
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25

(Id. at p. 250.) The 2009 NMFS BiOp continued this approach, setting forth EOS carryover
storage targets in the RPA, with the lowest target being 1.9 MAF in the driest category of years,
and delineating steps Reclamation must take if the various targets cannot be reached. (See
generally id. at pp. 590–603.) The 2009 NMFS BiOp estimated that—based on then-available
information—the 1.9 MAF target would not be met in 10% of years. (Id. at p. 250.) The 2009
RPA also provided drought exception procedures and contingency plans if these temperatures and
carryover storage targets could not be achieved. (Id. at p. 600.)
F.

Loss of Temperature Control in 2014 and 2015
In 2014, California was in the third year of a drought. (2019 NMFS BiOp at p. 69.)

According to PCFFA’s expert, Dr. Jonathan Rosenfield, early in 2014, Reclamation moved the
temperature compliance point “far upstream above Clear Creek’s confluence with the Sacramento
River,” predicting it could provide required water temperatures to that point. (3/5/20 Rosenfeld
Decl., Doc. 82, ¶ 171.) However, despite initial modeling that indicated compliance was possible
and despite Reclamation obtaining various waivers from state Delta outflow requirements that it
asserted were necessary to maintain appropriate water temperatures, river temperatures at the
revised temperature control point exceeded 56°F. (Id.) This resulted in temperature-dependent
egg mortality in 2014 of 77% (id.) and extremely poor egg-to-fry survival (measured as the
percentage of eggs that survived to produce fry capable of passing the Red Bluff Diversion Dam
on the lower Sacramento River) of approximately 4%. (2019 NMFS BiOp at p. 69.)
This unfortunate story repeated in 2015. (See 3/5/20 Rosenfield Decl., ¶ 172.) Winter run
egg-to-fry survival that year was the lowest on record (approximately three percent), “due to the

26
27
28

California State Water Resources Control Board Decision 1641 on page 188. As State Plaintiffs’ expert witness Les
Grober has explained: “There are five year types: critically dry, dry, below normal, above normal, and wet.”
(11/23/21 Grober Decl., ¶ 26 n. 8.) There is also a separate water year type designation for the San Joaquin River
watershed. (See 2/10/22 Conant Decl., Doc. 451-1, Attachment.)

12

1

inability to release cold water from Shasta Dam in the fourth year of the drought.” (Id.) As a

2

result, and as the 2019 NMFS BiOp explains, “[w]inter-run [] returns in 2016 to 2018 were low,

3

as expected, due at least in part to poor in-river conditions for juveniles from brood year 2013 to

4

2015 during drought years.” (Id.) Although “[t]he 2018 adult winter-run return (2,639) improved

5

from 2017 (977),” it was “dominated by hatchery-origin fish.” (Id.)

6

In 2016, after the years of drought and concerns over extremely low population numbers

7

of winter-run and Delta smelt, FWS and NMFS reinitiated consultation under the ESA. (See

8

Docs. 85-4, 85-5.) Reclamation specifically acknowledged the precarious situation of the winter-

9

run and Delta smelt in its requests for re-initiation of consultation. (Id.)

10

G.

2019 Biological Opinions
In January 2019, Reclamation issued a biological assessment (BA)18 for the Proposed

11
12

Action. (See 2019 NMFS BiOp at p. 12.) Pursuant to the ESA, Reclamation again consulted with

13

FWS and NMFS. (See id.)

14

In July 2019, NMFS prepared a draft BiOp in which the agency concluded that, absent

15

constraints, the Reclamation’s proposed plan as set forth in the January 2019 BA was likely to

16

jeopardize the continued existence of, and destroy or adversely modify the critical habitat of, the

17

listed salmonid species. (Doc. 85-13.) Thereafter, Reclamation and DWR incorporated changes to

18

the proposed plan, including additional commitments to address impacts to listed species. (See

19

2019 NMFS BiOp at pp. 12–14.)

20

A few months later, on October 21, 2019, Reclamation issued a revised, Final BA

21

describing a revised operating plan for the Water Projects (Doc. 85-12), which constituted the

22

final Proposed Action. On the same day, NMFS issued a BiOp that concluded Reclamation’s

23

revised proposed plan was not likely to jeopardize the existence of winter-run and spring-run

24
25
26
27
28

Under the ESA, an agency proposing to take an action (often referred to as the “action agency”) must first inquire
of FWS and/or NMFS whether any threatened or endangered species “may be present” in the area of the proposed
action. See 16 U.S.C. § 1536(c)(1). If endangered species may be present, the action agency may prepare a BA to
determine whether such species “is likely to be affected” by the action. Id.; 50 C.F.R. § 402.12(b). “An agency may
avoid the consultation requirement only if it determines that its action will have ‘no effect’ on a listed species or
critical habitat.” Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1027 (9th Cir. 2012) (en banc) (internal
citation omitted). If the BA determines that a threatened or endangered species is “likely to be affected,” the agency
must formally consult with FWS and/or NMFS. See 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14.
18

13

1

salmon and Central Valley steelhead beyond that permitted under its 2009 opinion. (See generally

2

2019 NMFS BiOp.) Following a very similar consultation pathway, FWS issued an opinion that

3

Reclamation’s proposed plan was not likely to jeopardize the continued existence of the Delta

4

smelt or modify its habitat. (Doc. 85-1 (2019 FWS BiOp).) Having found no jeopardy, the BiOps

5

imposed no additional protective conditions on the Proposed Action, which was allowed to

6

proceed as described in Reclamation’s Final BA. These related lawsuits followed.

7

H.

Temperature Management at Shasta Dam under the 2019 NMFS BiOp19
The 2019 NMFS BiOp set forth a “tiered” Shasta temperature management strategy

8
9

designed, at least facially, to account for the real-time spatial and temporal distribution of redds

10

(egg clusters) to attempt to conserve cold water for use when it is most needed. A Reclamation

11

witness described this tiered approach generally as follows.

12

The tiered strategy recognizes that cold water is a scarce resource
and that additional measures may be required when hydrology and
meteorology do not provide sufficient cold water to avoid
temperature dependent mortality throughout the entire temperature
management period. The tiered strategy is intended to optimize use
of cold water at Shasta for Winter-Run Chinook Salmon eggs based
on life-stage-specific requirements during the temperature
management season.

13
14
15
16
17

(3/26/20 White Decl., Doc. 119-1, ¶ 23 (citing Doc. 85-12 at 4-31 to 4-32).)

18

The 2019 NMFS BiOp concluded that the Clear Creek TCP serves as a reliable surrogate

19

for controlling temperatures at the farthest downstream redd location. (See 2019 NMFS BiOp at

20

pp. 173, 237.) The tiered strategy adopts the view that using cold water too early (i.e., before

21

redds are deposited) and/or to meet a TCP too far downstream of the actual location of redds,

22

wastes cold water that is needed later in the season during the critical incubation season. Thus, the

23

tiered strategy hypothetically “allows for strategically selected temperature objectives,” based on

24

projected total storage, the available “cold water pool,” meteorology, and downstream conditions

25

(which can influence how much water Reclamation must release for other reasons), among other

26
27
28

19

The Court recognizes that the 2019 BiOps evaluated, and approved, Water Project operations and protective
measures as proposed by Reclamation and described in Reclamation’s Proposed Action. Purely for ease of reference,
however, the Court occasionally refers to the applicable regulatory constraints as stemming from the 2019 BiOps
themselves.

14

1

things. (Doc. 85-12 at 4-28.)

2

The temperature targets for each “Tier” under the 2019 BiOps are as follows:

3

•

In Tier 1 years, Reclamation will maintain daily average temperatures of 53.5°F at

4

Clear Creek throughout the entire temperature management season (May 15 through

5

Oct 30). (2019 NMFS BiOp at pp. 241–2.)
•

6

In Tier 2, Reclamation will target 53.5°F at Clear Creek during the “critical egg
incubation period.” (Id. at p. 242.)

7
•

8

Tier 3 is the proposed operation when the cold water pool in Shasta Reservoir on May

9

1 is less than 2.3 million acre-feet or when modeling suggests that maintaining 53.5°F

10

at the Clear Creek TCP would have higher mortality than a warmer temperature. (Id.)

11

In a Tier 3 year, Reclamation would target 53.5°–56° degrees at Clear Creek during

12

the critical egg incubation period and would consider “intervention measures.”20 (Id.)

13

Reclamation would not allow temperatures to exceed 56° but would decrease

14

temperatures to below that during the periods of greatest temperature stress on the

15

species. (Id.)
•

16

Tier 4 conditions are “defined by mid-March storage and operations forecasts of

17

Shasta Reservoir total storage less than 2.5 million acre-feet at the beginning of May,

18

or if Reclamation cannot meet 56°F at Clear Creek gauge.” (Id. at p. 243.) In Tier 4

19

years, Reclamation will “initiate discussions with FWS and NMFS on potential

20

intervention measures to address low storage conditions that continue into April and

21

May.” (Id. at p. 243.)

22

Under the 2019 NMFS BiOp, temperature management planning begins in early February,

23

when Reclamation prepares forecasts of water year runoff using precipitation to date, snow water

24

content accumulations, and runoff. If, for example, May 1 storage is projected to be less than 2.5

25

MAF, Reclamation would initiate discussions on intervention measures for a Tier 4 year.

26
27
28

The “[i]ntervention measures” referenced in the 2019 NMFS BiOp include “consulting with []FWS and NMFS,
increasing hatchery intake, adult rescue, and juvenile trap and haul.” (Id. at p. 249.) NMFS notes in the 2019 NMFS
BiOp that “any benefits from implementation of these measures is not included in results presented [therein] due to
their inability to be characterized by the modeling.” (Id. at p. 243.)
20

15

1

Reclamation would then perform initial temperature modeling in early April, which is timed to

2

coincide with the release of certain critical forecasts. This April temperature model scenario is

3

then used to develop an initial TMP. After Reclamation determines the actual May 1 cold water

4

pool volume, it presents a draft TMP to stakeholders the first week of May, with the final TMP

5

being submitted to NMFS and SWRCB on or before May 20. During the temperature

6

management “season” (i.e., the time of year when temperature is managed under the TMP), the

7

2019 NMFS BiOp calls for Reclamation to convene the Sacramento River Temperature Task

8

Group at least monthly during the season and to provide real time reports on temperature

9

performance. (See generally Doc. 363 at 25–26 (citing Doc. 85-12 at 4-15, 4-32 to 4-33 & Shasta

10

Cold Water Pool Management Guidance Document cited therein).) NMFS provides technical

11

assistance, review, and comment on the draft and final temperature management plans through

12

the Sacramento River Temperature Task Group. (2019 NMFS BiOp pp. 256–57; Doc. 85-12 at 4-

13

35.)

14

The 2019 NMFS BiOp plans for certain other measures designed with an intent to benefit

15

winter-run. Among other things, the Proposed Action notes a Resolution adopted by the

16

Sacramento River Settlement Contractors (SRS Contractors)21, pursuant to which, during drier

17

water years (Tier 3 and Tier 4), the SRS Contractors will meet and confer with Reclamation,

18

NMFS, and other agencies as appropriate to determine if there is any role for the SRS Contractors

19

in connection with Reclamation’s operational decision-making for Shasta Reservoir annual

20

operations. (Doc. 85-12 at 4-89.) While a pre-determined reduction (25%) in deliveries to the

21

SRS Contractors is automatically triggered in certain dry years under their “settlement” contracts,

22

other actions may be considered, including: (1) modifying the scheduling of spring diversions by

23

the SRS Contractors; (2) voluntary, compensated water transfers by the SRS Contractors subject

24

to Reclamation approval; and (3) delayed SRS Contractor diversion for rice straw decomposition

25

during the fall months. (Id.) The Proposed Action also includes non-flow measures such as

26
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28

The SRS Contractors are “individuals and entities . . . that individually hold settlement agreements (the SRS
Contracts) with [ ] Reclamation.” (2019 NMFS BiOp at p. 8.) The SRS Contractors hold “senior” rights that pre-date
the CVP and SWP, and thus Reclamation’s “without action” scenarios assume these senior rights holders would
continue to divert water under their pre-CVP/SWP rights, because that is what they previously did in absence of the
operation of the CVP and SWP. (Doc. 85-12 at 3-17.)
21

16

1

spawning and rearing habitat restoration, construction of lower intakes in critical areas, and other

2

fish passage projects. (Id. at 4-40 to 4-42.) Despite these, NMFS conceded in its 2019 BiOp that:

3

The proposed action will result in ongoing adverse effects to
Sacramento River winter-run Chinook salmon. The most significant
adverse effects . . . are temperature dependent egg mortality that will
occur in all of the Summer Cold Water Pool Management tier types,
but most significantly in tier 3 and 4 years.

4
5
6

(2019 NMFS BiOp at p. 753.) The plaintiffs in these lawsuits vigorously challenge on many

7

fronts the sufficiency of the 2019 NMFS BiOp’s tiered management approach.

8

I.

9

Issuance of State ITP and Negotiation of the 2022 IOP
On March 31, 2020, after the filing of these related lawsuits, the State of California issued

10

its Incidental Take Permit (State ITP) covering the operations of the SWP and addressing the

11

impacts of the SWP on species listed under CESA. (Doc. 314-1.) Among other things, the State

12

ITP required that the SWP’s operations abide by protective measures in addition to those set forth

13

in the 2019 biological opinions. (See generally id.) This created a potential for conflict (or “mis-

14

alignment”) between SWP and CVP operations. (11/23/21 Leahigh Decl., CNRA Doc. 222, ¶ 49.)

15

Such mis-alignment can, in turn, cause various problems, including inefficiencies and

16

management complications. (See id., ¶ 52.)

17

Beginning in early 2021, the parties agreed to several limited stays to allow for review of

18

these cases by the then-new Biden Administration. (See Docs. 278 at 8–9.) In the summer of

19

2021, state and federal water and fisheries agencies began discussing ways to reconcile the

20

operations of the CVP and SWP given the conflicts between the 2019 BiOps and the State ITP.

21

On August 20, 2021, this Court issued an order staying the litigation through September 30, 2021.

22

(Doc. 285.)

23

On September 30, 2021, Federal Defendants formally reinitiated consultation on the

24

challenged biological opinions. (11/23/21 Conant Decl., Doc. 314-2, ¶ 9.) As mentioned, the

25

remand is ongoing with a current estimate of completion by the end of 2024. (Doc. 482-4.)

26

Concerned about how the projects were to be operated while the re-initiated consultation

27

was ongoing, the court encouraged the parties to engage in the “serious task of determining how

28

the projects will be operated during any interim period if ESA-consultation is re-initiated.” (Doc.
17

1

285 at 4.) Those efforts resulted in the filing of a motion to approve the 2022 IOP, which was the

2

subject of extensive briefing and a day-long evidentiary hearing (see Doc. 377), followed by

3

issuance of the IOP Order on March 11, 2022. (Doc. 394.)

4

The following year, given that the remand was still in progress, the Federal Defendants

5

and State Plaintiffs again negotiated an IOP, which was again presented to the Court for approval.

6

After extensive briefing, including numerous objections and proposals for alternative relief, and

7

an evidentiary hearing, the 2023 IOP was approved. (See 2023 IOP Order.)

8

J.

9

Overview of Pending Motions
The disputed issues related to interim relief for 2024 are even narrower in scope than

10

those addressed in the 2023 IOP Order. This is in part because, as discussed below, many of the

11

disputed provisions have already expired or are highly unlikely to be triggered in the remainder of

12

the Water Year.

13
14
15

The 2024 IOP itself proposes certain changes, many of which are ministerial and do not
warrant detailed discussion. (See Doc. 482 at 6.) The substantive changes include the following:
•

Reclamation has agreed to adopt and apply to the CVP several provisions of the ITP

16

pertaining to the protection of Longfin smelt, including ITP Conditions of Approval

17

8.3.3, 8.4.1, and 8.4.2. (2024 IOP, ¶ 6.i-iv.) These provisions are described in greater

18

detail below as appropriate.

19

•

Reclamation has also agreed to reduce exports consistent with ITP Condition of

20

Approval 8.17 as follows: In the event that WY 2024 is classified based on the San

21

Joaquin Valley 60-20-20 index as Critical, Dry, or Below Normal, Reclamation will

22

“ensure a volumetric reduction consistent with DWR’s implementation” of Condition

23

8.17. (2024 IOP, ¶ 12.) In the event WY 2024 is classified as Above Normal,

24

Reclamation will reduce exports by 100,000 AF to contribute to Spring outflow,

25

except that the reductions will be suspended during high flow conditions as described

26

in ITP Condition 8.17. (Id.)

27
28

•

The moving parties have further agreed to modify the so-called “turbidity bridge
avoidance” action, which was included in the 2019 FWS BiOp and ITP Condition of
18

1

Approval 8.5.1, to address an “inconsistency” in the way DWR and Reclamation “off

2

ramped” from that action. (2024 IOP, ¶ 8.) Put another way, Reclamation has agreed

3

to time the duration of the turbidity bridge avoidance action in a way that is consistent

4

with DWR’s timing. (See id.)

5
6

The proponents of the 2024 IOP seek judicial approval of their proposal, inclusive of the
above changes.

7

PCFFA objects to the 2024 IOP unless it is modified in various ways that are discussed in

8

detail below. In general, PCFFA requests provisions that: (a) again impose slightly lower

9

temperature targets for winter-run during the temperature management season in dryer years;

10

(b) also impose temperature targets for all other year types; (c) require that Reclamation manage

11

operations to meet higher carryover storage goals in certain year types; (c) close the so-called

12

“stored water loophole”; (d) prohibit Reclamation from seeking exemptions from California

13

Water Quality Standards unless Reclamation first suspends non-essential deliveries to CVP

14

contractors to the extent of Reclamation’s discretionary authority, and (e) extend the 2024 IOP’s

15

protections for Longfin smelt through March 31. (See Doc. 492 at 16–17.)
Defendant Intervenors raise some general objections but focus on the 2024 IOP’s

16
17

proposed measures to protect Longfin smelt, the inclusion of which Defendant Intervenors

18

maintain are unlawful and unreasonable given that Longfin smelt have yet to be listed under the

19

ESA. (See generally Doc. 495.)

20

Though the timeline of the Court’s review has been limited by the need to rule on these

21

matters as quickly as possible, the Court has thoroughly considered all of these arguments and

22

supporting documentation.

23
24
25
26
27
28

III.
A.

STANDARDS OF DECISION

Applicable Standards of Decision Articulated in Prior Orders
The Court has previously engaged in a thorough examination of the competing standards

and articulated several key holdings relevant here.
First, the Court concluded that jurisprudence related to approval of consent decrees
represents “the best—and possibly the only practical way—to approach the interim injunctive
19

1

relief proposals in this case.” (Id. at 71.) This is because “the IOP [is] a stipulation among the

2

parties to the CNRA case regarding the form of injunctive relief those parties believe should be

3

imposed . . .” (Id.)

4
5
6
7
8
9
10
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12
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22
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24

Where a stipulation results in the termination of claims, it is often
termed a “consent decree.” See Gates v. Shinn, 98 F.3d 463, 468 (9th
Cir. 1996). Courts draw upon relatively well-developed standards
when determining whether it is appropriate to adopt a consent decree.
Approval of a proposed consent decree lies within the discretion of a
district court. See United States v. Oregon, 913 F.2d 576, 580 (9th
Cir. 1990). A district court may approve a consent decree when the
decree is “fair, reasonable and equitable and does not violate the law
or public policy.” Turtle Island Restoration Network v. U.S. Dep’t of
Com., 672 F.3d 1160, 1165 (9th Cir. 2012). If the consent decree
“comes within the general scope of the case made by the pleadings,
furthers the objectives upon which the law is based, and does not
violate the statute upon which the complaint was based, the
agreement should be entered by the court.” Hawaii’s Thousand
Friends, Life of Land, Inc. v. Honolulu, 149 F.R.D. 614, 616 (D.
Haw. 1993) (quoting Sierra Club, Inc. v. Elec. Controls Design Inc.,
909 F.2d 1350, 1355 (9th Cir. 1990)). Additionally, the court must
“be satisfied that the decree represents a reasonable factual and legal
determination.’” Oregon, 913 F.2d at 581 (internal quotation
omitted). A court’s discretion should be exercised in favor of the
strong policy favoring voluntary settlement of litigation because
settlements “conserve judicial time and limit expensive litigation,”
Ahern v. Cent. Pac. Freight Lines, 846 F.2d 47, 48 (9th Cir. 1988),
but a court must nonetheless independently scrutinize its terms and
avoid “rubber stamp approval,” United States v. Montrose Chem.
Corp. of Cal., 50 F.3d 741, 747 (9th Cir. 1995); see also Local No.
93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 525
(“[A] federal court is more than a recorder of contracts from whom
parties can purchase injunctions; it is an organ of government
constituted to make judicial decisions.”).
***
The Ninth Circuit recognized in Federal Trade Commission v.
Enforma Natural Products, Inc., that standards applicable to the
review of consent decrees are relevant to stipulated injunctions as
well, because a stipulated injunction is effectively a “temporary
settlement” of a lawsuit. 362 F.3d 1204, 1218 (9th Cir. 2004).
(2022 IOP Order at 71–73; see also id. at 74 (noting that “by applying at least some principles
from consent decree review to the stipulated injunction in that case, the Ninth Circuit’s ruling in

25
Enforma gives strong support for the proposition that it is appropriate to draw from consent
26
decree jurisprudence to evaluate stipulated injunctions”).)
27

Second, and relatedly, the Court rejected PCFFA’s contention that the IOP must “avoid

28
20

1

jeopardy” to be adopted. (Id. at 67–69.) Though the ESA imposes upon the CVP and SWP

2

operators a substantive obligation to ensure that agency action is not likely to jeopardize the

3

continued existence of any ESA-listed species or result in the destruction or adverse modification

4

of a listed species’ designated critical habitat, see 16 U.S.C. § 1536(a)(2), in this Circuit, “[i]t is

5

not an abuse of discretion for a court to issue an injunction that does not completely prevent the

6

irreparable harm that it identifies.” See Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 886

7

F.3d 803, 823 (9th Cir. 2018) (NWF III) (emphasis added). The Court concluded that this rule

8

applies with equal force in the context of the approval of a consent decree:

9

[I]n Turtle Island, intervenors argued that the injunctive relief
contained within the proposed consent decree was unreasonable
because Federal Defendants did not comply with the ESA’s best
available science requirement, 16 U.S.C. § 1536(a)(2), before
entering into the agreement. Turtle Island, 834 F. Supp. at 1015–16.
But, as the district court in that case observed, “[p]rovided that the
proposed consent decree is fair, reasonable, and equitable, and does
not violate the law or public policy, it need not utilize the best
scientific evidence. Such a requirement would transform evaluation
of a proposed consent decree into a decision on the merits in
contravention of controlling authority.” Id. at 1019 (citing Oregon,
913 F.2d at 582) . . .

10
11
12
13
14
15

In sum, while jeopardy is certainly relevant, the court is not
convinced that every injunction imposed in an ESA [case] must
demonstrably “avoid jeopardy.” Or, conversely, that a court cannot
adopt an injunction unless it demonstrably “avoids jeopardy.” While
a court “must act within the bounds of the [applicable] statute[s] and
without intruding upon the administrative province,” it “may adjust
its relief to the exigencies of the case in accordance with the equitable
principles governing judicial action.” NWF III, 886 F.3d at 823.

16
17
18
19
20

(2022 IOP Order at 69.)
Third, at a bare minimum,22 the “traditional” standard for the imposition of preliminary

21
22

A preliminary injunction “can take two forms,” either a “prohibitory injunction” or a “mandatory injunction.”
Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 878–79 (9th Cir. 2009). A “Prohibitory
injunction” simply “preserve[s] the status quo pending a determination of the action on the merits,” while a
“mandatory injunction” “orders a responsible party to take action.” Id. (quotation omitted). In the context of
injunctive relief, “[t]he status quo means the last, uncontested status which preceded the pending controversy.”
Garcia v. Google, Inc., 786 F.3d 733, 740 n.4 (9th Cir. 2015) (internal quotation omitted). Mandatory injunctions are
“particularly disfavored,” and a plaintiff’s burden is “doubly demanding” when seeking one. Id. “In general,
mandatory injunctions are not granted unless extreme or very serious damage will result and are not issued in
doubtful cases.” Marlyn Nutraceuticals, 571 F.3d at 879 (internal quotation marks and citation omitted).
Consequently, in seeking a mandatory injunction plaintiffs must “establish that the law and facts clearly favor” their
position. Garcia, 786 F.3d at 740 (emphasis in original). As the Court previously explained, other courts have found
that the mandatory injunction standard applies under somewhat similar circumstances. (See IOP Order at 62–63
(collecting cases).) The Court again finds it unnecessary to determine whether the mandatory injunction standard
22

23
24
25
26
27
28

21

1

injunctive relief applies to any competing requests for relief not included within the stipulated

2

IOP’s terms. The 2022 IOP Order articulated the familiar standards in detail:
The “traditional” standard for the imposition of preliminary
injunctive relief “requires a party to demonstrate ‘that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in
the absence of preliminary relief, that the balance of equities tips in
his favor, and that an injunction is in the public interest.’” Stormans,
Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter
v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)); see also Ctr.
for Food Safety v. Vilsack, 636 F.3d 1166, 1172 (9th Cir. 2011)
(“After Winter, ‘plaintiffs must establish that irreparable harm is
likely, not just possible, in order to obtain a preliminary injunction.”);
Am. Trucking Ass’n, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052
(9th Cir. 2009). The Ninth Circuit has also held that an “injunction is
appropriate when a plaintiff demonstrates . . . that serious questions
going to the merits were raised and the balance of hardships tips
sharply in the plaintiff’s favor.” All. for Wild Rockies v. Cottrell, 632
F.3d 1127, 1134–35 (9th Cir. 2011) (internal quotation and citation
omitted).23 For the purposes of injunctive relief, “serious questions”
refers to questions which cannot be resolved one way or the other at
the hearing on the injunction and as to which the court perceives a
need to preserve the status quo lest one side prevent resolution of the
questions or execution of any judgment by altering the status quo.
Serious questions are substantial, difficult and doubtful, as to make
them a fair ground for litigation and thus for more deliberative
investigation.

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4
5
6
7
8
9
10
11
12
13
14
15

Republic of the Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir.
1988) (quotations marks and citation omitted).

16
17

The party seeking an injunction bears the burden of proving these
elements. Klein v. City of San Clemente, 584 F.3d 1196, 1201 (9th
Cir. 2009); see also Caribbean Marine Servs. Co. v. Baldrige, 844
F.2d 668, 674 (9th Cir. 1988) (citation omitted) (“A plaintiff must do
more than merely allege imminent harm sufficient to establish
standing; a plaintiff must demonstrate immediate threatened injury
as a prerequisite to preliminary injunctive relief.”). Finally, an
injunction is “an extraordinary remedy that may only be awarded
upon a clear showing that the plaintiff is entitled to such relief.”
Winter, 555 U.S. at 22.

18
19
20
21
22

***
23
That said, “[e]nvironmental injury, by its nature, can seldom be
adequately remedied by money damages and is often permanent or

24
25

applies here because PCFFA has failed to meet its burden under the more relaxed, traditional standard.

26
27
28

The Ninth Circuit has found that this “serious question” version of the circuit’s sliding scale approach survives
“when applied as part of the four-element Winter test.” All. for the Wild Rockies, 632 F.3d at 1134. “That is, ‘serious
questions going to the merits’ and a balance of hardships that tips sharply towards the plaintiff can support issuance
of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that
the injunction is in the public interest.” Id. at 1135.
23

22

at least of long duration, i.e., irreparable.” Amoco Prod. Co. v. Vill.
of Gambell, 480 U.S. 531, 545 (1987). In the context of the ESA,
“Congress has spoken in the plainest of words, making it abundantly
clear that the balance has been struck in favor of affording
endangered species the highest of priorities . . ..” TVA v. Hill, 437
U.S. at 194. To show irreparable harm in the context of the ESA,
plaintiffs do not need to demonstrate an “extinction level” threat. See
[NWF III], 886 F.3d [at] 818–19 [ ](“NWF III”) (indicating without
specifying that some “lesser magnitude” of harm will suffice); see
also Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d
917, 930 (9th Cir. 2008) (“NWF II”) (finding that an agency “may
not take action that deepens [pre-existing/baseline] jeopardy by
causing additional harm”). Thus, for example, impeding a listed
species’ progress toward recovery may suffice to satisfy the
irreparable harm requirement. Wishtoyo Found. v. United Water
Conservation Dist., No. CV 16-3869-DOC (PLAx), 2018 WL
6265099, at *65 (C.D. Cal. Sept. 23, 2018), aff’d, 795 F. App’x 541
(9th Cir. 2020); see also PCFFA v. Gutierrez, 606 F. Supp. 2d
[1195,] 1207–10, 1249 [(E.D. Cal. 2008)].

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6
7
8
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Any injunction must be narrowly tailored to avoid the irreparable
harm identified. NWF III, 886 F.3d at 823. “There must be a
sufficient causal connection between the alleged irreparable harm
and the activity to be enjoined, but a plaintiff need not further show
that the action sought to be enjoined is the exclusive cause of the
injury.” Id. (internal quotation and citation omitted). Moreover, “[i]t
is not an abuse of discretion for a court to issue an injunction that
does not completely prevent the irreparable harm that it identifies.”
Id. Finally, a court may decline to impose injunctive relief that is
infeasible. See NWF v. NMFS, No. CV 01-640-RE, 2005 WL
3576843, at *7 (D. Or. Dec. 29, 2005) (declining to order requested
ESA relief where the proposed measures were not feasible).

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13
14
15
16
17
18

(2022 IOP Order at 61–64.)

19

B.

20

Renewed Arguments Regarding Standards of Decision
The Federal Defendants and State Plaintiffs once again assert that the Court’s prior rulings

21

regarding the applicable standards of decision are “law of the case” and therefore that the Court

22

should not revisit its rulings on those issues. (See Doc. 482 at 10; see also Doc. 406 at 9.) The

23

Court has addressed this argument previously as follows:

24
25
26
27
28

Though [the Moving Parties’] general description of the law of the
case doctrine is correct, the doctrine is more nuanced than Federal
Defendants acknowledge. “The law of the case doctrine does not . . .
bar a court from reconsidering its own orders before judgment is
entered or the court is otherwise divested of jurisdiction over the
order.” See Askins v. U.S. Dept. of Homeland Sec., 899 F.3d 1035,
1042 (9th Cir. 2018); see also Dreith v. Nu Image, Inc., 648 F.3d 779,
787–88 (9th Cir. 2011) (“[A] district court has the inherent power to
revisit its non-final orders, and that power is not lost when the case
23

4

is assigned mid-stream to a second judge.”). “That leaves the district
court free to correct any errors or misunderstandings without having
to find that its prior decision was ‘clearly erroneous.’” Askins, 899
F.3d at 1043. Nonetheless, just because the Court may reconsider the
conclusions of the 2022 IOP Order does not mean that it will be
moved to do so. See id. at 1043 (“The district court may decide the
second motion . . . in the same way it decided the first.”).

5

(2023 IOP Order at 26–27.) The parties’ recent arguments do not move the needle on this subject.

1
2
3

IV.

6

EVIDENTIARY MATTERS

At least one party has requested that the Court take judicial notice of documents in the

7
8

public record. Those requests are GRANTED as to any such documents that have been cited

9

herein. (Doc. 507.) To the extent those documents have not been cited, the requests for judicial

10

notice are DENIED AS MOOT.
V.

11

ANALYSIS OF THE 2024 IOP24

As in prior orders, the Court structures its review of the 2024 IOP around the general rule

12
13

that a district court may enter a proposed consent judgment, or in this case approve a stipulated

14

injunction, “if the court decides that it is fair, reasonable, and equitable and does not violate the

15

law or public policy.” Sierra Club, 909 F.2d at 1355.

16

A.

Fairness

17

“Fairness should be evaluated from the standpoint of signatories and nonparties to the

18

decree.” Turtle Island, 834 F. Supp. 2d at 1016 (internal citations and quotations omitted). “In

19

determining whether a proposed consent decree is fair, courts examine both procedural and

20

substantive fairness.” Id.; see also United States v. Pac. Gas & Elec., 776 F. Supp. 2d 1007, 1024

21

(N.D. Cal. 2011) (PG&E).

22

1.

23

The 2022 IOP Order explained how procedural fairness is to be evaluated:

24

Procedural Fairness

To evaluate procedural fairness, the court must determine whether
the negotiation process was “fair and full of adversarial vigor.”
United States v. Chevron, 380 F. Supp. 2d 1104, 1110–11 (N.D. Cal.
2005). If the decree is the product of “good faith, arms-length

25
26
27
28

Once again, the Court has not found it practical to include a separate “findings of fact” section in this order; rather,
it has included relevant discussion of the factual record within its analysis. To the extent that any finding in the
analysis section could be interpreted as a finding of fact rather than a conclusion of law, that is the Court’s intent, as
is the reverse.
24

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negotiations,” it is “presumptively valid.” Id. (quoting Oregon, 913
F.2d at 581). At the same time, “the district court must ensure that
the agreement is not . . . a product of collusion . . .” PG&E, 776 F.
Supp. 2d 1025.

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2
3
4

(2022 IOP Order at 80.) Applying these standards, the 2022 IOP Order found that the 2022 IOP

5

was produced from intensive negotiations that lasted more than two months, with meetings that

6

occurred sometimes multiple times per week. (Id. at 81.) The Court rejected Defendant

7

Intervenors’ argument that negotiations between the Federal Defendants and State Plaintiffs were

8

“politically-motivated” and therefore were not undertaken in good faith. (Id.) Instead, the 2022

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IOP Order found that because Federal Defendants have maintained throughout these proceedings

10

that they have not violated the law, whereas State Plaintiffs consistently maintained the contrary

11

position, the IOP negotiations were not tainted by collusion. (Id.) Moreover, the Court found that

12

there was no requirement that the negotiations be inclusive because “[t]he Government need not

13

allow third parties to participate in settlement negotiations.” (Id. at 83, citing Turtle Island, 834 F.

14

Supp. 2d at 1020–21; see also id. (“So long as a party is given the opportunity to ‘air its

15

objections and the district court has determined that the settlement is fair and reasonable, a party’s

16

lack of consent will not block the entry of the consent decree/temporary settlement.”).)

17

In relation to the 2023 IOP, the Court found no reason to change the fairness analysis

18

because no objecting party presented any new information. (2023 IOP Order at 30–31.) There

19

was no suggestion that the postures of the Federal Defendants and State Plaintiffs have changed;

20

they remained adversarial. (Id.) Negotiations were thorough and frequent. (Id.)

21

Once again, the present record supports the same conclusion. (See Doc. 482 at 10–11

22

(indicating that Federal Defendants and State Plaintiffs met regularly to negotiate the renewed

23

IOP, met with representatives of the other parties to these related cases, provided them with a

24

draft IOP, and solicited their feedback).) The 2024 IOP is procedurally fair.

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2.

Substantive Fairness

26

In evaluating substantive fairness, it is “important for the district court to be fully

27

informed regarding the costs and benefits of the decree.” Chevron, 380 F. Supp. 2d at 1113

28

(citing Montrose Chem. Corp., 50 F.3d at 746). However, “[i]t is not the duty of the court to

25

1

determine whether ‘the settlement is one which the court itself might have fashioned, or considers

2

ideal.’” Chevron, 380 F. Supp. 2d at 1111 (quoting United States v. Cannons Eng’g Corp., 899

3

F.2d 79, 84 (1st Cir. 1990).). Rather, substantive fairness “mirrors the requirement that the decree

4

be equitable.” United States v. Telluride, 849 F. Supp. 1400, 1402 (D. Co. 1994). Put another

5

way, the substantive fairness inquiry “concerns the issues of corrective justice and

6

accountability.” Arizona ex rel. Woods v. Nucor Corp., 825 F. Supp. 1452, 1458 (D. Ariz. 1992),

7

aff’d sub nom. Arizona v. Components Inc., 66 F.3d 213 (9th Cir. 1995). “[T]he court’s approval

8

is nothing more than an amalgam of delicate balancing, gross approximations and rough justice.”

9

Oregon, 913 F.2d at 581 (internal quotations omitted). The court “need only be satisfied that the

10
11

decree represents a ‘reasonable factual and legal determination.’” Id.
The 2022 IOP relied upon Hawaii’s Thousand Friends, 149 F.R.D. at 616, to provide a

12

general, practical approach to its analysis of the 2022 IOP, which Judge Drozd concisely

13

described as “a complex package of measures that is layered on top of one of the most complex

14

regulatory schemes in all of environmental law.” (2022 IOP Order at 84.) In Hawaii’s Thousand

15

Friends, the district court found that a consent decree (or here a stipulated injunction) should be

16

approved if it “comes within the general scope of the case made by the pleadings, furthers the

17

objectives upon which the law is based, and does not violate the statute upon which the complaint

18

was based.” 149 F.R.D. at 616. Following this rubric, the 2022 IOP Order found “[i]n a broad

19

sense,” that “the IOP addresses real disputes between Federal Defendants and State Plaintiffs in

20

meaningful and reasonably practical ways,” (2022 IOP Order at 84), that the central components

21

of the IOP came “within the general scope of the case made by the pleadings,” and that the 2022

22

IOP meaningfully and reasonably addressed each of those issues, keeping in mind the central role

23

of the Court, which is to determine whether the IOP “furthers the objectives upon which the law

24

is based.” Id. The Court relied on this general standard to evaluate the 2023 IOP. (See generally

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2023 IOP Order.)

26

In support of Court approval of the longfin smelt provisions included in the 2024 IOP,

27

State Plaintiffs appear to suggest that the Court “should” approve a consent decree if it

28

(1) comes within the general scope of the claims advanced in the pleadings; (2) furthers the
26

1

objectives of (and therefore does not violate) laws underpinning those claims, even if the consent

2

decree may violate another statute or public policy. (See CNRA Doc. 348 at 3–5 (suggesting that

3

the Court should disregard Defendant Intervenors’ arguments that the 2024 IOP violates the

4

Central Valley Project Improvement act (CVPIA) and the Agreement Between the United States of

5

America and the Department of Water Resources of the State of California for Coordinated Operation

6

of the Central Valley Project and the State Water Project (COA)).) To the extent State Plaintiffs

7

truly intended for their argument to go this far, the Court finds it unpersuasive. Though it is true

8

the CNRA FAC does not contain any claim premised upon the CVPIA or COA, the Court’s

9

review of a consent decree is not as limited as State Plaintiffs suggest. The Court cannot disregard

10

the general standard articulated by the Ninth Circuit, which permits approval of a consent decree

11

when the decree is “fair, reasonable and equitable and does not violate the law or public policy.”

12

Turtle Island, 672 F.3d at 1165. That some cases appear to conflate the requirement for

13

evaluating whether a consent decree violates law or public policy with the requirement that the

14

decree’s terms fall within the general scope of the statutes underpinning the claims in the case,

15

see Sierra Club, 909 F.2d at 1355, does not mean those tests always and entirely overlap. It would

16

seem to go without saying that a party cannot use a court-approved consent decree to evade

17

otherwise enforceable legal constraints. See Keith v. Volpe, 118 F.3d 1386, 1393 (9th Cir.1997)

18

(“[P]arties to the Consent Decree . . . [can]not agree to terms which would exceed their authority

19

and supplant [other] law[s].”); St. Charles Tower, Inc. v. Kurtz, 643 F.3d 264, 270 (8th Cir. 2011)

20

(“While parties can settle their litigation with consent decrees, they . . . cannot consent to do

21

something together that they lack the power to do individually.”); Kasper v. Bd. of Election

22

Comm’rs of the City of Chicago, 814 F.2d 332, 341–42 (7th Cir. 1987) (“Because a consent

23

decree’s force comes from agreement rather than positive law, the decree depends on the parties’

24

authority to give assent. . . . A consent decree is not a method by which [ ] agencies may liberate

25

themselves from the statutes enacted by the legislature that created them.”).

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28

a.

General Issues Relevant to Substantive Fairness

The proponents of the 2024 IOP again to offer several general justifications for a finding
that the IOP is substantively fair.
27

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2

i.

The IOP Corrects Mis-Alignment of the CVP and SWP

Federal Defendants and State Plaintiffs continue to maintain that the 2024 IOP corrects

3

mis-alignments between the CVP and the SWP caused by the State ITP. (Doc. 482 at 14–15;

4

12/22/23 Allen Decl., Doc. 482-5, ¶¶ 11–12; 12/22/23 White Decl., Doc. 482-3, ¶ 15; 2/21/24

5

White Decl., Doc. 500-2, ¶ 14.) As the 2022 IOP Order explained: “While the State’s ITP on its

6

face only constrains the operations of state agencies (i.e. the California Department of Water

7

Resources), the state and federal projects are operated in concert with one another. Federal

8

Defendants and State Plaintiffs persuasively assert that a disconnect of this nature can cause

9

inefficiencies in the use and management of water resources.” (2022 IOP Order at 18; see also

10

11/23/21 Leahigh Decl., ¶ 52 (“From a project operator perspective, misalignment between CVP

11

and SWP operations creates significant challenges for management of the two projects. There is

12

no clear guidance on how the differing export constraints would fit within the current

13

[Coordinated Operating Agreement] framework between the two Projects.”); 11/23/21 Conant

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Decl., ¶¶ 7–8 (echoing that “[A]lignment in years where there is not enough water to meet all

15

project needs, such as occurred in water year 2021, improves the efficient use of scarce water

16

supplies. Reclamation has concerns that implementing inconsistent CVP and SWP operations

17

would be inefficient and could result in both projects’ being unable to maximize available water,

18

especially in dry hydrology.”).)

19

In the present briefing, Defendant Intervenors offer evidence of situations where the CVP

20

and SWP were able to coordinate on specific matters prior to the IOP. Specifically, Ronald

21

Milligan opines that there have been two instances since 2020 when the SWP and CVP has been

22

governed by different operational criteria due to the more restrictive flow measures contained in

23

the State ITP for the benefit of Longfin smelt that did not (at least at those times) apply to the

24

CVP. (1/31/24 Milligan Decl., Doc. 487, ¶ 9.) According to Mr. Milligan, “[t]he difference in

25

restrictions on OMR flow applicable to each project did not cause a problem for operations. In

26

both instances CVP and SWP operators coordinated pumping and tracked exports through the

27

‘exports sharing account’ to comply with the export sharing requirement in COA.” (Id., ¶ 10.)

28

However, in reply, Federal Defendant’s expert, Kristin White, explained that “[there remains a
28

1

need to provide operational certainty and maintain efficient operations of a coordinated system.”

2

(2/21/24 White Decl., ¶ 17.) This is because, for example, “when the projects are operating to

3

separate standards, Reclamation’s access to use the Intertie—which allows water to be moved

4

from one canal to the other (i.e. the Delta Mendota Canal to the California Aqueduct or vice

5

versa)—is limited. This potentially limits Reclamation’s flexibility in performing maintenance

6

and could limit other areas of flexibility, as well.” (Id.)

7

Overall, the Court finds that the “misalignment” rationale continues to provide general

8

support for extending the IOP. Nonetheless, in part because of its obligation to ensure interim

9

relief is “narrowly tailored,” the Court has not relied upon it as the sole justification for the

10

finding of reasonableness as to any particular provision of the IOP or as to the IOP as a whole.

11

ii.

12

The IOP Prevents Unnecessary Litigation

The various iterations of the IOP also reflect a temporary settlement of a highly complex

13

lawsuit. Though the approval of the IOP continues to be time consuming, this process has

14

nonetheless saved judicial and party resources, including resources needed to complete the

15

ongoing remand. (See 12/22/23 Marcinkevage Decl., ¶ 16 (indicating that further litigation would

16

harm the ability of agency staff to complete the remand process).) The Court continues to find

17

this consideration highly relevant.

18

b.

19

Shasta Operations & Related Issues
i.

20

2024 IOP’s Shasta Operations Provisions

The 2024 IOP retains the essential elements of the 2022 and 2023 IOPs related to Shasta

21

Reservoir/Dam operations. If WY 2024 is classified as a Critical, Dry, or Below Normal, the

22

2023 IOP imposes certain procedures and actions that must be taken to provide cold water

23

conditions for winter run Chinook Salmon egg incubation. (See 2024 IOP, ¶¶ 13–17.) In addition,

24

the 2024 IOP calls upon Reclamation to set carryover storage volume goals according to water

25

year type. More specifically, under the 2024 IOP:

26

•

Reclamation is again generally committing to meet daily average water temperatures at

27

the Clear Creek gauge on the Sacramento River of 55°F (in critical years) and 54°F (for

28

dry and below normal years) from May 1–October 31. (Id. ¶ 16.)
29

1

•

Reclamation will use the following “potential” end-of-September Shasta carryover storage

2

“goals” to “inform the development of a final [carryover storage] target”: 1.2–1.8 MAF in

3

a Critical year; 1.8–2.5 MAF in a Dry year; 2.5–3.2 MAF in a Below Normal year. (Id. ¶

4

17.)

5

•

If Reclamation is unable to meet the temperature-related habitat criteria described above

6

for “Critical, Dry, or Below Normal years,” then the Shasta Planning Group, will “agree

7

on temperature management that provides sufficient habitat for the longest period

8

possible.” (Id., ¶ 13.i.b.)

9
10

•

In Critical or Dry years only, Reclamation will operate Shasta Reservoir to meet the
following priorities in the following order (id., ¶ 13.):

11

(a) Public health and safety, defined as meeting municipal and industrial Delta salinity

12

requirements and minimum deliveries for public health and safety;

13

(b) Meeting the habitat needs of winter-run chinook salmon by, among other things,

14

not scheduling or make deliveries of “stored water” for any reason other than for

15

“public health and safety” until Reclamation approves a temperature management plan

16

that will meet the winter-run habitat criteria (in the form of the temperature targets

17

identified above) and End-of-September storage goals.

18

(c) “Deliveries of stored water to senior water contractors and Central Valley Project

19

Improvement Act (CVPIA) level 2 refuge supplies after ensuring any such deliveries

20

are consistent with the above priorities.”

21

(d) Other deliveries after ensuring any such deliveries are consistent with the above

22

priorities.

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24

ii.

Prior Finding of Reasonableness.

Because some of the discussion that follows builds upon the Court’s prior findings that the

25

2022 and 2023 IOP’s Shasta Operations provisions were reasonable, the Court reiterates the

26

essential aspects of that reasoning from the 2020 IOP Order here:

27
28

First and foremost, the IOP aims to provide much-needed protection
for winter-run eggs in the Upper Sacramento River in the coming
water year. . . . Winter-run experienced high levels of temperature30

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3
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related egg mortality in 2020 and 2021. Current water storage
conditions and ongoing drought risk a third year of significant
temperature related egg mortality. This presents a serious concern for
the species as a whole in terms of its ability to persist and to recover
because of: (a) its three-year life cycle and (b) the fact that it is
geographically vulnerable since the only population spawns in the
reaches below Shasta Dam. This situation warrants the taking of
measures to protect all freshwater life stages of winter run to
minimize that risk. As a threshold matter, this issue falls well within
the scope of the claims State Plaintiffs have brought against Federal
Defendants in this case. The operative complaint in CNRA
specifically alleges that the Proposed Action as approved by the 2019
NMFS BiOp degrades conditions for listed species impacted by
Shasta Dam operations and fails to require appropriate cold water
pool operations, including by eliminating carryover storage
requirements. (See CNRA FAC, ¶¶ 80–81, 93, 104.)

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Substantively, the IOP takes balanced and reasonable steps toward
addressing the risks identified above in several interrelated ways.
First, the IOP sets forth temperature targets for winter run incubating
eggs that are (if they can be maintained) more protective and more
biologically justifiable than those that would govern under the dry
year (Tier 3 and Tier 4) scenarios of the 2019 NMFS BiOp. Even
assuming there is a scientific foundation for the idea that winter-run
incubating eggs can withstand temperatures at or above 56°F (with
56°F being allowed in Tier 3 years and no upper limit applied in Tier
4 years under the 2019 NMFS BiOp) for certain periods of time,
nothing in the law requires managers to operate right up to that line,
which would leave the fish and project operators no room for error.
Cf. San Luis. v. Jewell, 747 F.3d at 624 (finding it was error for the
district court to require the agency to explain why it picked one
protective measure over another one that would have had less impact
on water supply; “FWS need only have adopted a final RPA which
complied with the jeopardy standard and which could be
implemented by the agency”).
Second, the IOP tackles the related problem of attempting to balance
the need for suitable instream temperatures this year against the need
to ensure sufficient water is carried over as storage into WY 2023. It
does so by setting reasonable carryover storage goals that must be
prioritized vis-à-vis consumptive uses of water (other than for health
and safety purposes). As Dr. Herbold cogently explained, the IOP’s
targeted ranges recognize the reality of the present situation, namely
that managers “cannot make water.” (Herbold Second Decl., ¶ 56.)
The court views the IOP’s approach to carryover storage as a
reasonable step in the right direction that, while not guaranteeing any
particular carryover storage outcome, re-prioritizes carryover storage
from a mere “consideration” under the 2019 NMFS BiOp to a more
formalized component of the temperature planning process.
Third, the IOP directly addresses the concern shared by all moving
parties that authorizing deliveries of stored water from Shasta early
in the year may foreclose the most advantageous temperature
management options by delaying deliveries of stored water until a
temperature management plan is in place. As noted above, the court
31

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3
4
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finds persuasive the central premise underpinning this requirement:
“A principal problem with operations under the [2019 NMFS] BiOp
is the incorrect presumption that one can wait to determine how this
complex system can be successfully operated to achieve many goals
until after some decisions are made that reduce the availability of
options to achieve temperature management goals.” (Grober Suppl.
Decl., ¶ 46.) Put simply, in a situation where very difficult choices
need to be made, Reclamation’s commitment in the IOP to release
no stored water beyond that needed for health and safety purposes
until a water management plan is adopted “ensures that the maximum
amount of flexibility will be retained to use water wisely.” (Herbold
Second Decl., ¶ 37.)

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Relatedly, the IOP modifies the decision-making guidelines and
structure in ways that reinforce the IOP’s prioritization of winter run
habitat needs. The guidelines come in the form of a prioritization
system [applicable in Critical and Dry years] that gives first priority
to public health and safety. Second priority is given to the habitat
needs of winter-run, which are embodied in (a) the temperature
targets discussed above that are designed to prevent catastrophic
temperature dependent mortality in dryer years and (b) the carryover
targets that acknowledge the demonstrated need to plan ahead for
subsequent years. Only once a water management plan is in place
that addresses the second priority for the longest period possible can
the third and fourth priorities be satisfied: deliveries to senior water
contractors and to “Level 2” wildlife refuges; and other deliveries.
The IOP also modifies the decision-making structure to ensure
appropriate weight is given to the second priority by giving the
assigned wildlife agency (NMFS) final say in the temperature
management planning process through the six-agency Shasta
Planning Group. Defendant Intervenor’s witness Lee Bergfeld
critiques the Group’s role as “duplicative” and because it excluded
the SRS Contractors. (Bergfeld Decl., ¶¶ 47–48.) But the record
before the court indicates that the Shasta Planning Group structure
will coordinate with other parties, including the SRS Contractors,
through other means. In fact, Reclamation, a member of the Shasta
Planning Group, is actively doing so now.
It is the interrelatedness of all of these elements that undermines
many of its detractors’ arguments. As all parties appear to
acknowledge, no one can predict today exactly how day-to-day
operations under the IOP will differ from management that would
have taken place under the 2019 NMFS BiOps. Defendant
Intervenors use this as an avenue for attacking the IOP, arguing that
its proponents have “not shown the IOP’s temperature targets will
avoid harm.” (CNRA Doc. No. 233 at 26 (emphasis added).) But
requiring in advance a definitive demonstration of how the IOP will
function in practice throughout the coming water year would
effectively preclude the very thing that makes the most (and perhaps
only) sense here, namely, conserving as much water as possible
(without endangering human health and safety) until sufficient
information is available to generate a temperature management plan.
Ultimately, by calling for early season delivery delays, the IOP
provides managers flexibility in meeting the habitat needs while also
increasing the likelihood that they will succeed in doing so by
32

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delaying deliveries until a temperature management plan is in place.
(2022 IOP Order at 84–87.)
iii.

Reasonableness

4
5

IOP Proponents’ General Justifications for a Renewed Finding of

The moving parties provide two primary justifications for a renewed finding that the

6

IOP’s Shasta provisions are again fair and reasonable. First, given that the Court analyzed

7

materially indistinguishable versions of these provisions in the 2022 and 2023 IOP Order and

8

found them to be fair and reasonable, the proponents of the IOP argue that the logic of the Court’s

9

prior order should still hold. (Doc. 482 at 4; see also Doc. 406 at 11 (citing 2022 IOP Order at

10

83–105).) The Court agrees that its prior orders provide the general backdrop for its reasonable

11

analysis here, taking into consideration current circumstances.

12

Second, Federal Defendants and State Plaintiffs argue that the IOP “functioned well, both

13

operationally and biologically, and has met their intended function by establishing a prioritization

14

structure for operational and species needs, establishing a manageable process to execute that

15

structure, and ensuring that the prioritization structure was implemented.” (Id. at 12.) The

16

proponents of the 2024 IOP acknowledge that the 2023 IOP did not directly control Shasta

17

Operations during the temperature management season. (See 2/21/24 Marcinkevage Decl., ¶¶ 10–

18

11.) Nonetheless, they maintain that the 2023 IOP provided important governance and decision-

19

making provisions that improved outcomes. (Id. at ¶ 10 (“Coordination [under the IOP’s Shasta

20

Planning Group] proved essential for reaching agreement on a final temperature management

21

plan that had to be developed with consideration for several competing water quality standards.

22

Without this level of coordination through the Shasta Planning Group, I cannot say with

23

confidence that temperature performance could have improved. Therefore, I conclude that the

24

IOP’s governance and decision-making processes and outcomes had a positive impact on winter-

25

run Chinook salmon in 2023.”).

26
27
28

iv.

2023 Water Year and Outcomes at Shasta Dam

Water Year 2023 was formally classified as “Wet” for both the Sacramento and San
Joaquin Valleys. (12/22/23 White Decl., ¶ 3.) As a result, many of the IOP’s Shasta operations

33

1

provisions were not triggered and Reclamation was able to manage Shasta releases so that

2

temperatures did not exceed 53.5F at Clear Creek throughout the entire temperature management

3

season. (Id., ¶ 5.) This, in turn, led to very low temperature dependent mortality of winter-run

4

Chinook. (12/22/23 Marcinkevage Decl., ¶ 13 (indicating that preliminary modeling showed only

5

2% temperature dependent mortality).) Other largely uncontrollable sources of mortality to

6

salmonids remained significant. Notably, the ongoing problem of thiamine deficiency, discussed

7

in the Court’s prior orders (see, e.g., Doc. 468 at 48–50), may have impacted the overwhelming

8

majority of young Chinook salmon in the region. (12/22/23 Marcinkevage Decl., ¶ 15.)
Wet conditions in 2023 also allowed California’s reservoirs to largely recover from the

9
10

recent drought. Shasta Reservoir, for example, began the temperature management season in May

11

2023 with 4.45 MAF in storage and began WY 2024 with 3.3 MAF. (12/22/23 White Decl., ¶¶ 4,

12

8.)

13

In declarations submitted in late December 2023, Reclamation officials asserted there was

14

a “high chance” of meeting the 53.5F temperature targets again in the 2024 temperature

15

management season, absent a significant change in hydrology. (Id.) These assertions were

16

reiterated in late February 2024. (2/21/24 White Decl., ¶ 5; 2/21/24 Marcinkevage Decl., ¶ 14

17

(“[C]urrent hydrology suggests a low likelihood of experiencing a drier water year type, even if

18

the hydrology moves toward drier conditions in the remainder of the precipitation season; as of

19

February 12, 2024, Shasta Reservoir is at 122% of historic average and 83% of total capacity

20

(approximately 3.77 MAF). Given current conditions at Shasta Reservoir, it is highly likely that

21

conditions will support water temperature management of 53.5ºF for much, if not all, of the

22

winter-run Chinook salmon temperature management season; in that case, the IOP’s dry-year

23

provisions will not control.”).) The Court also takes judicial notice of the March 1, 2024 water

24

supply forecast of the “Sacramento Valley Water Year Type Index 40-30-30” (SVI)—the index

25

used to determine applicability of the Shasta provisions of the IOP. California Data Exchange

26

Center, California Department of Water Resources, 2024 Water Year Forecast as of March 1,

27

2024, available at: https://cdec.water.ca.gov/reportapp/javareports?name=WSI (last visited Mar.

28

28, 2024); (see also 2/10/22 Conant Decl., Doc. 457 (explaining the various water supply indices,
34

1

how they are used, and where the latest updates can be found).) According to the March 1, 2024

2

SVI, there is no more than a 1% chance that the Sacramento Valley Water Year Type Index will

3

be Dry or Critical, though it remains unclear which of the other water year types will prevail, with

4

either a Below Normal or Above Normal determination appearing to be the most likely outcomes.

5

(Id.)

6

By their own terms, many of the 2024 IOP’s provisions related to Shasta operations will

7

only be triggered if the water year is classified as Critical, Dry, or Below Normal, with the most

8

controversial provisions only applying in Critical or Dry years. (See, e.g., 2024 IOP, ¶ 4, 12–13.)

9

Nonetheless there remains a not insignificant chance that at least the Below Normal provisions of

10

the 2024 IOP applicable to Shasta operations may still apply. (See See 2/21/24 Marcinkevage

11

Decl., ¶ 14.) As such, the Court believes there is reason to evaluate at least those Shasta

12

provisions that apply in Below Normal or wetter years.

13

v.

14

Defendant Intervenors’ Related General Objections
a)

Changed Hydrology

15

Defendant Intervenors generally argue that because 2023 was a “hydrological and

16

biological success,” the 2024 IOP is “not a reasonable resolution of the interim relief issues in this

17

case.” (Doc. 485 at 21).25 They point to the above-mentioned statistics about WY 2023 and the

18

start of WY 2024 and emphasize that winter run Chinook egg-to-fry survival in 2023 was

19

approximately 25%, a “far cry” from the 2.2% and 2.6% estimates from 2021 and 2022,

20

respectively. (Id. (citing 1/31/24 Cavallo Decl., Doc. 489, ¶ 5; 1/1/22 Cavallo Decl., Doc. 333, at

21

17 Table 2).) In addition, Shasta Lake had 3.332 MAF in storage at the end of September 2023,

22

whereas its 2021 and 2022 end-of-September storage totals were 1.07 and 1.5 MAF, respectively.

23

(Id. (citing record).) Defendant Intervenors maintain, therefore, that “the circumstances this Court

24

faced in issuing the prior two orders are simply not present” this year. (Id.)
The record does not support Defendant Intervenors’ position on this point for several

25
26

reasons. First, despite the upswing in survival experienced by winter-run Chinook juveniles in

27
28

25

It is somewhat unclear whether the Defendant Intervenors object wholesale to the 2024 IOP or only to the
“changes” it makes to the 2023 IOP’s provisions. (See Doc. 485 at 21.)

35

1

2023, “juvenile survival to the Delta [has] fluctuated greatly” in recent years, “and the cohort

2

replacement rate has been negative, indicating that the species condition is not stable and is, in

3

fact, still at risk.” (2/21/24 Marcinkevage Decl., Doc. 501-1, ¶ 7.)

4

Second, though a Critical or Dry year classification appears to be highly unlikely, a Below

5

Normal year remains a possibility. As it has previously indicated, the Court agrees with NMFS

6

Assistant Regional Administrator Cathy Marcinkevage that “[the measures associated with these

7

drier water year classifications provide important protective measures should wetter hydrology not

8

develop through the remainder of the year.” (12/22/23 Marcinkevage Decl., ¶ 11.) Moreover, the

9

exact options available to managers during the temperature management season cannot be

10

predicted with confidence at this time, meaning that the procedures of the IOP remain important:

11

Considering the current storage conditions at Shasta Reservoir, it
seems quite likely that Reclamation would manage Shasta Reservoir
as a Tier 1 year. In Tier 1 years, Reclamation determines that cold
water pool is sufficient (i.e., more than 2.8 MAF of cold water pool
in Shasta Reservoir at the beginning of May or modeling suggests
that a daily average temperature of 53.5°F at CCR can be maintained
from May 15 to October 31) and proposes to operate to a daily
average temperature of 53.5°F at the CCR gaging station to minimize
TDM. Although Tier 1 years generally have sufficient cold water to
maintain 53.5°F through October 31, the unknown meteorology of
coming months continues to present a small risk of temperatures
rising above 53.5°F, particularly towards the end of the temperature
management season in September and October. Though Reclamation
is able to generally manage these risks through real time operations
of the temperature control device, temporary exceedances may occur
and allowable tolerances will be identified in the annual temperature
management plan through coordination with SRTTG.

12
13
14
15
16
17
18
19
20

(2/21/24 Marcinkevage Decl., ¶ 16.)

21
22

b)

Water Supply Impacts

The SRS Contractors again revisit the subject of water supply tradeoffs associated with

23

the IOP. (Doc. 485 at 22–23.) Though arguably these objections focus on the Longfin smelt

24

provisions, the Court reiterates here its previous ruling concerning how such evidence may be

25

considered:

26
27
28

“Congress removed from the courts their traditional equitable
discretion in injunction proceedings of balancing the parties’
competing interests.” PCFFA v. Gutierrez, 606 F. Supp. 2d at 1204;
see also NWF I, 422 F.3d at 793–94 (“Congress has determined that
under the ESA the balance of hardships always tips sharply in favor
36

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3
4
5
6

of endangered or threatened species.”). In practice, this results in a
prohibition of the balancing of economic harms against the
Congressionally determined public interest in preserving endangered
species. PCFFA v. Gutierrez, 606 F. Supp. 2d at 1204. A similar
concept has been applied in the context of consent decree approval.
Turtle Island, 834 F. Supp. 2d at 1018 (noting that if intervenor
fishing interests ultimately had access to their fishery limited by the
terms of the consent decree “this result would be consistent with the
goals of the ESA and in the public’s interest,” because under Hill,
437 U.S. at 184, “[t]he plain intent of Congress in enacting [the ESA]
was to halt and reverse the trend toward species extinction, whatever
the cost”).

7
8
9
10
11
12
13
14
15
16
17
18
19

Declarations have [ ] been filed in this case, by the SRS Contractors
and others, containing evidence of “pure economic harm” caused by
water supply shortages. (See, e.g, Doc. 439 (Water Resources
Manager of Kern County Water Authority describing, among other
things, economic impacts of water supply shortages).) As the Ninth
Circuit has noted, ESA restrictions have the potential to harm
“millions of acres of land and tens of millions of people,” San Luis
& Delta-Mendota Water Auth., 747 F.3d at 605, who rely on water
from the CVP-SWP. As the 2022 IOP Order indicated: “This is well
established and understood.” (2022 IOP Order at 108 n. 68.) Again,
other declarations detail related issues that are not purely economic,
such as alleged harm to the food supply and harm to underprivileged
communities, schools and businesses that may result from water
delivery restrictions. The Court is permitted to consider these the
societal harms. PCFFA v. Gutierrez, 606 F. Supp. 2d at 1213–14
(suggesting court may consider evidence regarding the health and
safety effects of secondary adverse impacts such as land subsidence,
land fallowing leading to air quality impacts, and community
dislocations arising from job losses). The Court has read and
considered all of declarations addressing these subjects. As the 2022
IOP Order indicated, “given the statutory priority given to
endangered species, these concerns can only underscore the court’s
obligation to ensure that the measures it imposes are narrowly
tailored to address anticipated harms.” (2022 IOP Order at 109.)

20

(2023 IOP Order at 55–56.) In considering whether the 2023 IOP was narrowly tailored, the

21

Court again takes information regarding water supply costs into consideration as “one reason why

22

the Court finds the IOP’s provisions to be more appropriate than the alternatives offered by

23

PCFFA.” (Id. at 56.)

24
25
26

vi.

PCFFA’s Objections and Requested Modifications Related to
Shasta Operations

As was the case in the briefing leading up to approval of the 2022 and 2023 IOPs, PCFFA

27

again argues that the temperature targets and carryover storage goals in the 2023 IOP are

28

insufficiently protective. (Doc. 492-2, ¶¶ 16–17.) PCFFA also requests that the Court close what

37

1

it calls the “stored water loophole” in the 2024 IOP’s prioritization system. (Id., ¶ 13.i.c.)

2

Procedurally, PCFFA once again argues that the Court can modify the proposed 2024 IOP

3

in the various ways they suggest, so long as the Court provides appropriate findings of fact and an

4

opportunity to object to the proposed changes. (Doc. 494 at 15 (citing Enforma, 362 F.3d at

5

1218).) Ninth Circuit held in Enforma that the district court erred by making two significant

6

changes to a proposed consent decree prior to approving it. See id. Rather, “[i]f the district court

7

elects to enter a preliminary injunction that varies from the it should be supported by findings of

8

fact and conclusions of law entered on the record and upon notice to the parties.” Id. at 1218–19.

9

Even assuming the holding of Enforma empowers the Court to make the changes PCFFA

10
11

suggests, the Court again declines to do so for the reasons set forth below.
a)

12
13

PCFFA’s Renewed Request to Modify IOP’s Temperature
Provisions

With regard to temperature, PCFFA again pushes for slightly lower temperature targets of

14

54.5ºF (as opposed to 55ºF) in Critical years; 53.5ºF (as opposed to 54ºF) in Dry and Below

15

Normal years. In addition, PCFFA seeks to expand the IOP’s temperature provisions beyond the

16

dryer year types covered by the proposed 2024 IOP to also require 53.5ºF in Above Normal and

17

Wet years. (Doc. 492-2, ¶ 16.)

18

The Court’s evaluation of PCFFA’s previous temperature-related remedial requests

19

provides important background. In the 2022 IOP Order, the Court rejected PCFFA’s request to

20

impose lower temperature targets:

21
22
23
24
25
26
27
28

PCFFA contends that the IOP’s provisions related to Shasta do not
go far enough in several respects. First, PCFFA argues that the IOP
adopts targets that are biologically unjustifiable. (See generally Doc.
No. 638.) With regard to the temperature targets to protect winterrun incubating eggs, as the court has already acknowledged, the
targets advanced by PCFFA are biologically justified and would help
ensure (if met) very low temperature dependent mortality. Even the
IOP’s advocates acknowledge that some (possibly quite significant)
temperature related mortality may occur at the temperature targets
adopted in the IOP. (See Brown Decl., ¶ 32; Tr. 42.) But, it is wellestablished that there are tradeoffs in dry years between (a) targeting
temperatures to a particular level and (b) the length of time that
temperature target can be maintained, as well as preserving water
storage to ensure effective temperature management in the following
year. (See Doc. No. 203 at 28 (June 24, 2020 Order discussing these
38

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tradeoffs apparent from the record then before the court); 2019
NMFS BiOp at p. 259 (explaining “operational tradeoffs between
maintaining high flows for the fall temperature management versus
reducing flows to conserve storage for the following year’s
temperature management”).)
Because of these tradeoffs, the IOP takes a middle-of-the road
approach, setting targets that are likely to be more protective than
those under the 2019 NMFS BiOp, see Brown Decl., ¶¶ 32
(explaining that models indicate mortality would be 88-100% if
temperatures are held at or above 56°F [under the 2019 NMFS
BiOp], whereas mortality may be lower 34–74% under the IOP), but
which are somewhat more likely to be achievable than those in the
PCFFA PI. Crucially, while it is not yet clear for how long managers
can achieve the IOP’s temperature targets this year, Reclamation is
at least “committing” to meeting the targets in the IOP. (Tr. 144.)
This contrasts with the evidence in the record before the court
indicating that PCFFA’s more stringent proposed temperature
requirements are unlikely to be achievable. As Mr. Conant testified,
current estimates indicate that end of April storage in Shasta will be
somewhere on the order of 2.1 MAF, (Tr. 125), well shy of the 3.5
MAF PCFFA estimates is needed to meet their proposed temperature
targets. (Rosenfeld Second Decl., ¶ 37.) The court acknowledges that
PCFFA’s witness, Dr. Rosenfield, has also pointed out that the
temperature targets called for in the IOP have only been met once
before where there has been less than 3.5 MAF in storage at the end
of April. (Id., ¶ 38.) This does not bode well for temperature
management efforts in the coming year. But that projection certainly
does not mean the court should choose to implement an even more
onerous standard. NWF III, 886 F.3d at 823 (“It is not an abuse of
discretion for a court to issue an injunction that does not completely
prevent the irreparable harm that it identifies.”); Turtle Island, 834
F. Supp. at 1019 (“Provided that the proposed consent decree is fair,
reasonable, and equitable, and does not violate the law or public
policy, it need not utilize the best scientific evidence. Such a
requirement would transform evaluation of a proposed consent
decree into a decision on the merits in contravention of controlling
authority.”).

20
21
22
23
24
25
26
27
28

(2022 IOP Order at 87–89.) As the Court later summarized:
In sum, record evidence about the water supply situation in 2022
suggested that PCFFA’s alternative temperature targets could not be
met during the 2022 temperature management season. Second, even
acknowledging that, all other things being equal, colder temperatures
are better for egg and fry survival, there are tradeoffs to imposing
colder temperature requirements in dry years. Most directly,
lowering a temperature target can influence the length of time
managers can keep temperatures from rising to dangerously high
levels. In addition, lower temperature targets can make it more
difficult to conserve storage for use in the following year’s
temperature management season. ([2022] IOP Order at 53, 88.)
(2023 IOP Order at 59–60.)
39

1

In 2023, PCFFA argued that because the water supply situation going into WY 2023 was

2

somewhat improved over the previous year, the Court’s feasibility rationale was no longer valid.

3

The Court “d[id] not see things that way.” (Id. at 60.)

4
5
6
7
8
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10
11
12
13
14
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23
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25
26
27
28

First, as discussed in the quote above, PCFFA’s own expert witness
indicated that end of April storage likely would have to reach 3.5
MAF to make meeting PCFFA’s Critical year temperature target of
54.5ºF feasible; 3.9 MAF would be required to meet the 53.5ºF target
PCFFA seeks to impose in Dry or Below Normal years. (See
12/16/21 Rosenfield Decl., ¶ 37.) The Court previously indicated in
the 2022 IOP Order that those same storage circumstances would
likely coincide with circumstances that would push the water year
classification out of those respective categories anyway. (See 2022
IOP Order at 113 n. 71; see generally 1/26/23 Conant Decl., ¶ 3.a &
Ex. 1.) Put another way, if the water supply situation approaches the
levels that might make it possible to meet PCFFA’s temperature
targets, it seems likely that the water year will also shift toward
wetter classifications that will render PCFFA’s proposed targets
inapposite or irrelevant.
Moreover, the tradeoff rationale offered in the 2022 IOP Order
remains valid. As the Court explained, (see 2022 IOP Order at 84–
87), Water Project managers must balance the goal of temperature
control in a given year against the often conflicting but nonetheless
important goal of maintaining sufficient carryover storage to ensure
temperature control in the subsequent year. The IOP’s prioritization
system that applies in Critical and Dry years is designed—at least in
theory—to help maximize the amount of water available to attain
both goals. But maximizing available water does not change the fact
that in any given year maintaining current-year temperatures can
conflict with planning for the next year. This means, ipso facto, that
applying PCFFA’s lower temperature targets in WY 2023 may make
it more difficult to ensure sufficient cold water for WY 2024, and
vice versa. PCFFA offers no clear, direct response to the Court’s
prior conclusion that the IOP offers a more balanced answer to this
conundrum nor to the Court’s ultimate conclusion that the IOP is
reasonable because it operates as a procedural mechanism that
maximizes the chances of “increasing the size of the pie” available
to achieve the dual goals of temperature control and carryover
storage.
The Court reiterates its concern expressed above that no one seems
to yet be able to articulate why winter-run survival was so poor in
2022. Neither the temperature dependent mortality modeling for
2022, which Federal Defendants and PCFFA continue to focus on,
nor the available data about thiamine deficiency can fully account for
these losses. PCFFA in fact cites the one government agency
document that posits a theory: The October 13, 2022 Summary from
the Sacramento River Temperature Task Group, which indicates that
background mortality of juveniles might be “a lot higher” in 2022
because of “turbidity and low flows.” (Doc. 417-14.) As discussed
above, the Court is not yet convinced by Mr. Cavallo’s arguments
that the modestly more protective temperature targets of the IOP
40

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3
4

should be abandoned for an approach that focuses even less on
temperatures, [yet] requiring that the Water Projects operate in dry
years to PCFFA’s alternative temperature targets and carryover
storage requirements could make flow concerns worse, not better. To
come full circle, the Court lands in the same place it did previously,
with a finding that the IOP represents the most reasonable approach,
albeit an imperfect one, to protecting the winter-run given the
available information.

5
6

(2023 IOP order at 60–61.) As discussed above, there is a vanishingly small chance that the

7

coming year will qualify as Critical or Dry. Therefore, the Court finds it unnecessary to address

8

PCFFA’s 2024 requests as to those year types.

9

As to the remaining aspects of PCFFA’s temperature target proposal (for Below Normal,

10

Above Normal, and Wet years), the Court’s thinking has not changed materially, despite changed

11

water supply conditions. There is no dispute that storage conditions have improved notably over

12

those prevailing at the time the Court approved either prior IOP. As Reclamation witness Ms.

13

White opines, “Shasta Reservoir began Water Year 2024 with over 3.3 MAF, and it has a high

14

chance of starting the 2024 temperature management season with adequate storage for meeting

15

similar goals as those set in the Temperature Management Plan in Water Year 2023. (2/21/24

16

White Decl., Doc. 500-2, ¶ 5.) Nonetheless, “if conditions turn dry or very dry for the remainder

17

of the precipitation season, Shasta Reservoir may not be in a position to provide the same

18

temperature management it did in Water Year 2023.” (Id.) As the Court indicated previously, if

19

the water supply situation “approaches the levels that might make it possible to meet PCFFA’s

20

temperature targets, it seems likely that the water year will also shift toward wetter classifications

21

that will render PCFFA’s proposed targets inapposite or irrelevant.” (Id. at 60.) The reverse is

22

equally true. Should conditions “turn dry or very dry,” the balancing act discussed by the Court in

23

its prior orders may again come into play.

24

PCFFA is correct that this Court has previously found its slightly lower temperature

25

targets to be “biologically appropriate,” but PCFFA continues to somewhat overplay the

26

consequences of that finding, at least in the context of these interim relief proposals. It is true that

27

the record evidence indicates that PCFFA’s ideal 53.5F temperature target “would help ensure (if

28

met) very low temperature dependent mortality” (Doc. 394 at 87) and that temperature dependent

41

1

mortality increases –possibly exponentially—above that temperature threshold. (Doc. 389 at 157–58.)

2

But the marginal difference PCFFA’s half a degree change would make for the amount of suitable

3

habitat available to winter-run Chinook and most importantly for temperature dependent mortality

4

remains unclear. When balanced against the various tradeoffs discussed in the Court’s prior orders,

5

the Court finds that the requested change to the management regime for Below Normal years is not

6

required for the Court to find the 2024 IOP “reasonable” nor has PCFFA otherwise demonstrated it is

7

necessary to avoid irreparable harm.

8

As for PCFFA request to expand the IOP’s temperature provisions beyond the dryer year

9

types covered by the proposed 2024 IOP to also require Reclamation to achieve 53.5ºF in Above

10

Normal and Wet years from May 15 through October 31, the Court finds that PCFFA has not

11

explained why the modification is needed given that the 2019 NMFS BiOp’s Tiered system

12

appears to provide for essentially the same practical result.

13
14
15
16

b)

PCFFA’s Alternative Carryover Storage Requirements

PCFFA also requests carryover storage requirements that depart from the proposed 2024
IOP as follows.
Year Type

2024 IOP Proposal

PCFFA Proposal

17

Critical

1.2 MAF to 2.8 MAF

1.9 MAF

18

Dry

1.8 MAF to 2.5 MAF

2.2 MAF

Below Normal

2.5 MAF – 3.2 MAF

[No alternative proposed]

Above Normal

[None given]

2.9 MAF

Wet

[None given]

3.0

19
20
21
22
23

(See Doc. 492-2, ¶ 17.ii.)
Again, because the water supply situation has rendered it highly unlikely that WY 2024

24

will be classified as Critical or Dry, the Court will not address PCFFA’s alternative carryover

25

storage proposal for those year types. PCFFA does not propose an alternative carryover storage

26

requirement for Below Normal years. As for Above Normal and Wet years, PCFFA essentially

27

offers no justification for adding these provisions to the IOP apart from the argument that the

28

goals are “attainable” this time around. (See Doc. 492 at 20 (offering scientific evidence related to
42

1

carryover storage proposal for drier year types but not for proposal related to Above Normal and

2

Wet years).)

3
4

c)

Stored Water Loophole

PCFFA asks the Court to address what it considers to be a loophole in the 2024 IOP’s

5

prioritization system applicable in Critical and Dry years. Again, because it is highly unlikely that

6

either of those year types will be declared, the Court declines to address this nuanced and

7

complex argument.

8
9

d)

Conclusion Re 2024 Shasta Provisions

In sum, for the reasons set forth above, the Court again finds the 2024 IOP provisions are

10

substantively reasonable. They represent a balanced approach to the ongoing risk to salmonids

11

that spawn in the reaches below Shasta Dam. In particular, the provisions that apply in drier years

12

should be in place in case conditions turn drier than expected. The alternative proposals are either

13

inapplicable, unsupported, or not reasonable.

14

Nonetheless, the Court will once again require Federal Defendants to file on the docket of

15

these cases a copy of the draft and final TMPs for 2024, along with a justification for any planned

16

departures from the IOP’s temperature targets. As it has previously indicated (2023 IOP Order at 64)

17

in requiring such a filing, the Court is exercising its inherent authority to monitor compliance with its

18

own orders.

19
20
21

c.

PCFFA’s renewed request to bar Reclamation from seeking exemptions
from California’s Water Quality Standards unless deliveries are curtailed

PCFFA again asks the Court to prohibit Reclamation from seeking waivers from state

22

Water Quality Standards until Reclamation first curtails, to the extent of its discretion, water

23

deliveries and water diversions to all CVP contractors, except for deliveries necessary for human

24

health and safety and for wildlife refuges. (Id., ¶ 19.) The Court’s prior reasoning on this subject

25

provides context for PCFFA’s renewed arguments:

26
27
28

PCFFA’s proposed injunction also contains a provision that would
require Reclamation to comply with “the provisions of the State
Water Resources Control Board’s Water Rights Decision 1641 [(D1641)] applicable to the State Water Project and Central Valley
Project, including requirements relating to Delta inflows, Delta
43

1

outflow, X2, and closures of the Delta Cross Channel Gates.”
(PCFFA PI ¶ 5.)

2
3
4
5

D-1641, which is binding on Reclamation, is designed to control
salinity in the Bay Delta to ensure water quality. (See supra footnote
32.) Compliance with D-1641 was a “baseline” condition built into
the 2019 BiOps. (See Doc. 322 at 10–11 (providing record
citations).) In other words, harms to fish were evaluated in those
BiOps based upon the assumption that the prescriptions contained
within D-1641 would be implemented.

6
7
8
9
10
11
12
13
14
15
16
17

In recent years, due to drought conditions, Reclamation and DWR
have [used TUCPs to seek permission] from the State Board [ ]to
deviate from D-1641. (See, e.g., Doc. 272-4.) [ ] One of the primary
reasons given for applying for (and approving) the TUCPs is to
preserve cold water behind the dams in the system designed to
protect fish later in the year. (See generally id.) This has tradeoffs for
water quality and flow downstream, and the State Board has
acknowledged this reality in approving past TUCPs. In particular, in
approving TUCPs, the State Board has specifically acknowledged
the potential harm posed to Delta smelt as a result. (Id. at 19.)
PCFFA’s proposed injunction would have Reclamation comply with
D-1641 even if it receives a waiver of D-1641’s requirements from
the State Water Resources Control Board. (PCFFA PI ¶ 5.) Under
PCFFA’s revised proposal, even this provision appears to be subject
to the new “best efforts” exception language. As noted previously,
under that language, if Reclamation is unable to meet PCFFA’s
Shasta targets or D-1641’s requirements despite “best efforts” to do
so, and despite “curtailing water deliveries and releases for
diversion” to the “extent permitted by law,” Reclamation could
deviate from the injunctions’ requirements, provided Reclamation
meets and confers with the parties as soon as possible. (PCFFA PI at
3.)

18
19
20
21
22
23
24
25
26
27
28

When the initial briefs were filed regarding these injunctive relief
motions, Reclamation and DWR had a TUCP pending before the
State Board that would apply this spring. (CNRA Doc. 252-1, Ex. 5.)
They have since withdrawn that petition. (Id.) As a result, there is
now no immediate danger of a TUCP this year. Nonetheless, PCFFA
has still expressed its concern because nothing prevents Reclamation
and DWR from filing another TUCP. (See Doc. 368 at 11.)
The court understands PCFFA’s point in this regard. The BiOps
assume that the actions required by D-1641 will be implemented.
Because those actions are protective of fish, that is a material aspect
of the baseline that the BiOps use to evaluate whether or not the
Water Projects will cause jeopardy/adverse modification under the
ESA. No party before the court suggests that the BiOps meaningfully
considered how fish would be impacted by any TUCPs, let alone by
the increasingly frequent use of TUCPs. But, PCFFA’s proposal—
that the court prohibit Reclamation from applying for TUCPs unless
it jumps through certain identified hoops—is not a reasonable or
particularly helpful response to this asserted failure. PCFFA’s
proposal appears to be designed to require Reclamation to do
44

1
2
3
4
5
6

absolutely everything else in its power to meet temperature
requirements for winter-run before applying for a TUCP. The court
has already explained why it believes the IOP’s process provides a
reasonable mechanism for ensuring just this, by requiring
Reclamation to prioritize the needs of winter-run habitat over water
deliveries to the extent it can do so consistent with the law and its
contractual obligations. PCFFA’s proposal would appear to presume
that Reclamation will try to evade or perform some sort of slight-ofhand with regard to these self-imposed priorities through the
mechanism of applying for TUCPs. In the court’s view, however, it
seems far more likely that a TUCP may be the only way Reclamation
can provide suitable temperatures for winter-run this coming season.

7
8
9
10
11
12
13
14

Moreover, the TUCP approval process already requires the State
Water Resources Control Board to consider the various speciesversus-species tradeoffs in question here. (Doc. 343-1 at 11–12
(amicus curiae brief explaining TUCP process).) The State Board is
also required to consider a number of other interests in the balance
when evaluating TUCPs. (Id.) No matter how PCFFA attempts to
describe this aspect of its proposed injunction, adopting it would be
an invasion by this court into the State Board’s process. The court
will not do so on the present record, which does not justify the
undertaking of such an extraordinary measure.
(2022 IOP Order at 116–18.)
PCFFA’s concerns did not abate in 2023. Despite improved hydrology, Federal

15

Defendants and DWR again filed a TUCP in early 2023 in part in an effort to recover state water

16

supplies from the then-recent drought conditions. (See CNRA Doc. 320, Ex. 2.) PCFFA again

17

argues that Water Project managers should be prohibited from seeking waivers from the

18

requirements of D-1641 unless and until “Reclamation [ ] curtail[s], to the extent of its discretion,

19

water deliveries to, water supply allocations for, and water diversions by all contractors of the

20

Central Valley Project . . . .” with certain exceptions. (Doc. 416-2.) PCFFA pointed out that the

21

analysis included in the TUCP itself indicates that the TUCP could expose salmonids and Delta

22

smelt to additional entrainment risk. (See 2023 IOP Order at 68.) 2/13/23 TUCP at p. 2-20). At

23

the same time, other information suggested these impacts would be minor. (See id.) On balance,

24

the Court concluded that PCFFA’s broad requested relief was again not justified, though it

25

expressed ongoing concern about the overall issue:

26
27
28

To the extent there was any doubt previously, PCFFA has now
underscored its point about the interplay of TUCPs and the BiOps at
issue in these cases. Because the BiOps rely heavily on state
regulatory requirements such as D-1641 as baseline regulatory
constraints protective of listed species, frequently modifying those
45

1
2
3
4
5
6
7
8

constraints raises serious questions about whether the BiOp’s can
reasonably rely on those protections. But that does not mean the
needle has moved sufficiently in favor of the relief PCFFA is
requesting in the present motions. To be clear, PCFFA is requesting
that the Court prohibit Reclamation from petitioning the SWRCB—
the California entity charged with regulating water quality—for
relief from the requirements of D-1641 unless and until Reclamation
first curtails “to the extent of its discretion, water deliveries to, water
supply allocations for, and water diversions by all contractors of the
Central Valley Project,” except those necessary to preserve health
and human safety and wildlife refuges. This remains a truly
extraordinary request that is not justified under the circumstances for
the reasons the Court explained in its prior order.
(2023 IOP Order at 68–69)

9

PCFFA’s briefing provides additional information about the use of TUCPs in 2023. After

10

approving the above-mentioned TUCP in early 2023 in light of the “urgent need for the proposed

11

changes,” the State Board later found that improved hydrology rendered impacts to protected fish

12

and wildlife no longer reasonable. (Chisholm Decl., Ex. V (State Board TUCP March 2023

13

Modification Letter), Doc. 495-6 at p. 2.) In addition, the State Board approved a separate TUCP

14

in early March 2023 that allowed otherwise unpermitted diversions from the San Joaquin River in

15

order to allow for greater groundwater basin recharge. (Chisholm Decl. Ex. H (2023 Friant TUCP

16

approval order), Doc. 493-8.) PCFFA points out that the State Board’s order approving that

17

TUCP acknowledged the possibility that the change would reduce survival of juvenile spring-run

18

Chinook salmon out-migrating to the ocean. (Id. at 11–13.)

19

Considering all of this information, PCFFA suggests that the Court’s previous hesitation

20

to interfere in the TUCP process was inappropriate (or at least should not be repeated) because “it

21

is neither the State Board’s role nor responsibility to enforce ESA requirements. That is a

22

question for the Court in considering whether and how to modify Federal Defendants’ proposed

23

IOP to ensure that Water Project operations do not jeopardize listed species this year.” (Doc. 492

24

at 22–23.) The Court will not regurgitate all of its prior rulings on the subject of how ESA

25

“jeopardy” should be considered in the context of injunctive relief, but will reiterate one point it

26

made in a footnote in 2022:

27
28

Jeopardy” is a term of art drawn from the ESA’s consultation
requirement, which requires that “[e]ach Federal agency shall, in
consultation with and with the assistance of [FWS or NMFS], insure

46

1
2
3
4
5
6
7
8
9

that any action authorized, funded, or carried out by such agency . . .
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of habitat of such species.” 16 U.S.C. § 1536(a)(2). The
consultation process set forth in that section of the ESA is what led
to the long line of BiOps, culminating in those challenged in this
case. The 2019 BiOps contain approximately 1300 pages of analysis
aimed at evaluating whether the Water Projects will cause “jeopardy”
or “adverse modification.” From a purely practical perspective, given
the complexity of the jeopardy/adverse modification analyses
performed in the equally complex biological opinions, it is unclear
how a court could possibly evaluate whether a proposed injunction
“avoids jeopardy” within a reasonable timeframe. In its role in
equity, a court can, at best, hope to incorporate into its
harm/reasonableness analyses relevant evidence presented to it
regarding the impacts upon the viability and recovery of species.
Nonetheless, any such effort would never come close to the full
“jeopardy” analysis required in a biological opinion.

10
11
12

(2022 IOP Order at 67 n. 53)
The process of creating a biological opinion is, at least in the first instance, where the

13

concept of “jeopardy,” as that term has long been applied in these cases to capture longer term

14

changes in population size and extinction risk, must be thoroughly and completely evaluated. As

15

the Court has indicated numerous times, previous biological opinions have relied upon State

16

Water Quality standards as background protection upon which other protections are layered. The

17

well-demonstrated, persistent use of TUCPs to evade these requirements cannot be glossed over.

18

But this does not mean the Court must or should prohibit their use in the context of the 2024 IOP,

19

which is only a “stop-gap” measure meant to bridge the gap until new biological opinions are

20

issued. This is particularly so in the total absence of any specific TUCP proposal this water year.

21

The Court will not issue the modification PCFFA requests based on a non-specific concern that a

22

hypothetical TUCP will cause irreparable harm.

23
24

d.

2024 IOP’s Delta Operations Provisions

As with the Shasta operational provisions of the 2024 IOP, only certain Delta-related

25

provisions actually remain in play for WY 2024. Of those provisions, fewer still are actually in

26

dispute in the parties’ 2024 IOP briefs. As to any provisions that may be applicable this year, but

27

which are not discussed in the parties’ 2024 IOP briefs, the Court incorporates by reference its

28

prior analyses of those provisions.
47

1
2

i.

Turbidity Bridge Avoidance Measure

As mentioned, the 2024 IOP contains a provision to harmonize how Reclamation and

3

DWR implement the previously-approved turbidity bridge avoidance measure. (2024 IOP, ¶ 8.)

4

No party has formally objected to this adjustment.

5
6
7

ii.

Longfin OMR Provisions

The 2024 IOP calls upon Reclamation to abide by four provisions aimed at protecting
Longfin smelt. (2024 IOP, ¶ 6.i-iv.

8

a)

9
10

ITP Condition of Approval 8.3.3 will not control this Water
Year and Condition 8.4.1 has expired

ITP Condition of Approval 8.3.3 calls for the OMR flows to be limited after December 1,

11

if not otherwise required by separate provisions, to maintain a 14-day average OMR index no

12

more negative than -5,000 cfs if monitoring indicates a certain number of Longfin smelt have

13

been salvaged at the CVP and SWP export facilities or if other factors indicate a high risk of

14

Longfin smelt entrainment at those facilities. (State ITP, § 8.3.3, p. 81.) But, the IOP and the 2019

15

BiOps already require OMR flow to be no more negative than -5,000 after March 1 (see 2023

16

IOP Order at 72), so ITP Condition of Approval 8.3.3 will have no practical effect for the

17

remainder of this Water Year.

18

ITP Condition of Approval 8.4.1 applies additional OMR restrictions to protect Longfin

19

Smelt “from the onset of OMR Management . . . through February 28.” (State ITP, § 8.3.3, p. 82.)

20

Thus, this provision has expired for this water year. Even if the Court were to adopt PCFFA’s

21

suggested modification of Condition 8.4.1 so that it extended through the end of March, by the

22

time this order issues, even that extended version of the Condition will have expired.

23
24

b)

ITP Condition of Approval 8.4.2.

Under the 2024 IPO, Reclamation has also agreed to adopt and implement ITP Condition

25

of Approval 8.4.2, which is designed to protect against larval and juvenile Longfin smelt

26

entrainment. (2024 IOP, ¶ 6.iii; State ITP § 8.4.2, p. 82–84.) By its own terms, Condition 8.4.2 is

27

applicable from January 1 through June 30 and is triggered when either, (a) certain surveys

28

indicate that Longfin smelt larvae or juveniles have been found in four or more of the twelve set
48

1

sampling locations in the central and south Delta, or (b) Longfin smelt catch during these samples

2

exceeds five Longfin smelt larvae or juveniles in two or more of the twelve sampling stations.

3

(State ITP § 8.4.2.) If either of these thresholds is triggered, DWR and Reclamation shall restrict

4

water project exports for seven consecutive days to maintain a seven-day average OMR index no

5

more negative than -5,000 cfs. (Id.) In addition, managers conduct weekly (or more frequently if

6

needed) assessments of larval and juvenile Longfin smelt entrainment risk, and may recommend

7

additional OMR flow limits between -1,250 and -5,000 cfs. (Id.; see also 12/22/23 Marcinkevage

8

Decl., ¶ 7.)

9

The stated purpose of this provision is to protect larval and juvenile Longfin smelt from

10

entrainment at the south Delta pumping facilities. (Id.) This purpose is reiterated elsewhere in the

11

record, including the declaration of Randall D. Baxter, a retired California Department of Fish

12

and Wildlife employee with considerable expertise in Longfin smelt biology and population

13

dynamics. (12/22/23 Baxter Decl., Doc. 482-7, ¶¶ 1–10.) Mr. Baxter indicates that Longfin smelt

14

larvae, which hatch primarily between late December and early April, are weak swimmers and

15

thus are “particularly at risk if they hatch within the influence of the south Delta water export

16

pumps.” (Id., ¶ 17.) After hatching, the larvae are slow growing and remain dependent on the net

17

currents they encounter for the first several days post hatching. (Id., ¶ 18.) In Baxter’s opinion,

18

the fate of any Longfin smelt hatching in the lower San Joaquin River is tied to flow:

19

27

Those hatching in the lower San Joaquin River are either drawn into
the south Delta by strongly negative Old and Middle River flows
(OMR; export pumping causes currents in the Old and Middle River
channels to flow upstream [negative] toward the pumps) or they are
transported downstream toward Suisun Bay when river flows exceed
export flows and net flow in the lower San Joaquin River becomes
strongly positive (≥5,000 cfs). Hydrodynamic modeling suggests
that once particles are drawn into the Delta south of the San Joaquin
River channel, they are unlikely to be “flushed out” and transported
to Suisun Bay by high flows. So once drawn into the south Delta,
larvae are either eventually entrained in exports, they die within the
south Delta or they survive and grow sufficiently large (20 mm) to
be salvaged or at 15-20 mm they become competent enough to
migrate out of the south Delta. It is believed that this emigration is
initiated by increasing temperatures in the 20-22°C range beginning
May through June and creating an increasingly stressful
environment.

28

(Id., ¶ 18.) Put simply, while other Conditions of Approval are designed to prevent adult Longfin

20
21
22
23
24
25
26

49

1

smelt from moving into (and possibly spawning in) areas of high risk (id., ¶ 24–25.), Condition of

2

Approval 8.4.2 is designed to sample for larval presence at certain densities and limit entrainment

3

of larvae and juvenile Longfin smelt.

4

The record suggests that “salmon and steelhead juveniles could benefit from less negative

5

OMR flows because the timing of the actions overlaps with the presence of these species in the

6

Delta, and less negative OMR flows can decrease the risk of entrainment and loss at the export

7

facilities for salmon and steelhead,” (12/22/23 Marcinkevage Decl., ¶ 8), but no party provides

8

specifics about how much of a benefit to salmonids this would provide or how important that

9

contribution would be to salmonid survival. Relatedly, no party disputes that Longfin smelt

10
11

protection is the primary purpose of Condition 8.4.2.
The State Plaintiffs advance several general arguments in favor of a finding that inclusion

12

of Condition 8.4.2 in the 2024 IOP is “fair, reasonable and equitable and [would] not violate the

13

law or public policy.” (Doc. 482 at 17–18.) First, they point out that Longfin are need of

14

protection due to population declines, as State agencies have recognized and the record here

15

supports. (Id. at 17; see supra Part II.B.) State Plaintiffs also argue that the Longfin smelt

16

provisions in the 2024 IOP come “within the general scope of the case made by the pleadings”

17

because the CNRA FAC alleged that Federal Defendants were violating CESA. (Doc. 482 at 17

18

(citing Hawaii’s Thousand Friends, 149 F.R.D. at 616).) Indeed, CNRA’s fifth claim for relief

19

alleges that Reclamation violated the APA by conducting CVP operations without complying

20

with CESA. (CNRA FAC, ¶¶ 145–54.) Though CESA is a state law, CNRA alleges that CESA is

21

enforceable against Reclamation by virtue of other provisions of federal Reclamation law,

22

including Section 8 of the Reclamation Act of 1902, which expressly requires Reclamation to

23

“proceed in conformance” with state water law. (Id.) This claim was the subject of extensive

24

motions to dismiss (see CNRA Docs. 117, 119, 121–22, 130–31, 136–38, 141), which were not

25

resolved prior to voluntary remand of the challenged biological opinions. Finally, State Plaintiffs

26

emphasize that the Longfin smelt provisions are not inconsistent with the ESA, (Doc. 482 at 18),

27

a point that no party refutes.

28

Defendant Intervenors object vigorously to approval of any of the Longfin smelt
50

1

provisions on various grounds. (Doc. 485 at 17–21.) Of particular note, Defendant Intervenors

2

argue that courts reviewing consent decrees relating to federal environmental laws have only

3

approved those decrees that “reverted to prior agency decision or, at most, modestly extended

4

prior agency action.” (Id. at 19.) For example, the consent decree at issue in Conservation

5

Northwest v. Sherman, 715 F.3d 1181, 1185 (9th Cir. 2013), effectively resulted in a permanent

6

amendment to a federal Forest Plan. The Ninth Circuit refused to approve that consent decree in

7

part because the settling parties could “simply let the [changes] stand indefinitely” without first

8

complying with applicable procedural rulemaking requirements. Id. at 1187.26 In contrast, the

9

consent decree approved in Turtle Island, 672 F.3d at 1168, restored parts of a prior regulatory

10

regime during a remand period, essentially functioning as a “stop-gap” measure “while the

11

agencies amended their regulations through existing administrative procedures.” Sherman, 715

12

F.3d at 1187 (discussing Turtle Island). Likewise, in Defenders of Wildlife v. Jewell, 2016 WL

13

7852469, at *4 (D. Ariz. Oct. 18, 2016), the consent decree set a deadline for development of a

14

recovery plan for a species but did not “set forth substantive provisions of a recovery plan or

15

otherwise mandate any particular aspect of recovery.” Citing these cases, Defendant Intervenors

16

argue that the 2024 IOP should not be approved because it seeks to protect an entirely new

17

species not covered by the challenged 2019 biological opinions and 2020 Record of Decision and

18

“thus significantly departs from the status quo.” (Doc. 485 at 20.)

19

Though the caselaw does not appear to absolutely prohibit approval of consent decrees

20

that depart from the status quo, the Court considers the Longfin smelt provisions to be a

21

significant departure from the other IOP provisions and finds that departure to be relevant to the

22

reasonableness analysis. “As Sherman made clear, each consent decree is evaluated on its own

23

merits, and there are unique features to this one.” Idaho State Snowmobile Ass’n v. U.S. Forest

24
26

25
26
27
28

The Court will not revisit in full its lengthy prior analysis of Sherman, which arose in the context of Defendant
Intervenors’ arguments that the various iterations of the IOP should have been subjected to analysis under NEPA.
(2022 IOP Order at 76–79.) In sum, the Court previously found that Sherman did not demand that the IOP be
subjected to NEPA analysis (or other procedural rulemaking requirements) because the IOP does not operate as a
substantial and permanent amendment to a prior regulatory regime. (Id. at 79 (“The Ninth Circuit’s holding in
Sherman indicates that a court would abuse its discretion only by approving a consent decree that “permanently and
substantially” amends an agency’s prior rule. The IOP does not do both and is therefore governed by the Ninth
Circuit’s decision in Turtle Island, which does not require strict compliance with statutory procedural requirements in
order to be approved by the court.”).) The argument presented here is a related but distinct one.

51

1

Serv., No. 3:12-CV-447-BLW, 2015 WL 807104, at *3 (D. Idaho Feb. 26, 2015). The

2

circumstances pull in several directions here. On the one hand, as mentioned, the record supports

3

a finding that Longfin smelt legitimately require additional protection against further population

4

declines and that the claims in the CNRA case seek to require Federal Defendants to abide by

5

CESA mandates designed to provide those protections. It is also true that the 2024 IOP is a

6

compromise of that (and other) disputed claims, (see CNRA Doc. 348 at 4), and that to approve a

7

consent decree, the Court need not reach and resolve the merits of the claim or controversy.

8

Citizens for a Better Env’t v. Gorsuch, 718 F.2d 1117, 1126 (D.C. Cir. 1983). Moreover, Federal

9

Defendants have proposed Longfin smelt for listing under the ESA and are engaged in active

10

consultation pursuant to regulations designed to anticipate protective measures for species in the

11

ESA listing pipeline. (See supra Part II.B.)

12

On the other hand, the Court cannot avoid the obvious: Longfin smelt are not yet listed

13

under the ESA and it remains unclear when, or even if, they will attain that status. Moreover,

14

apart from the fact that employees of FWS—the agency ultimately responsible for determining

15

what measures may be required to protect Longfin smelt from jeopardy if they ultimately are

16

listed—support the inclusion of the Longfin smelt provisions in the 2024 IOP, the record does not

17

contain information suggesting what protective measures will be required under the ESA, nor

18

whether they will be substantially identical to those included in the 2024 IOP.

19

In addition, Federal Defendants have never before accepted the premise that a CESA

20

listing is grounds for the imposition of restrictions upon the operation of a federal water project.

21

Relatedly, Defendant Intervenors argue that Federal Defendants cannot lawfully impose such

22

restrictions on the CVP if doing so would require Federal Defendants to violate provisions of the

23

CVPIA and the COA that call upon Federal Defendants to export and deliver as much water as

24

possible during times of “balanced conditions.” (See generally Doc. 485.)

25

Layered on top of the above complexities is the fact that it remains unclear if Condition

26

8.5.2 would control any aspect of the projects this water year, even if the Court were to approve

27

its application to Reclamation and the CVP. Dr. Hanson indicates that in recent years, even when

28

larval protections have been triggered under 8.4.2, other OMR restrictions aimed at preventing
52

1

salmonid entrainment instead controlled project operations. (1/31/24 Hanson Decl., Doc. 486, ¶

2

27.) Moreover, he opines that the proportion of the Longfin smelt population lost to water

3

diversions is thought to be very small: approximately 1.5% according to a study cited by Dr.

4

Hanson. (Id., ¶ 28.)

5

Perhaps sensing that the Court might have concerns about imposing a Longfin smelt

6

provision on Reclamation as part of the 2024 IOP, the State Plaintiffs attempt to suggest that

7

these provisions are not a departure from the status quo because they operate according to a

8

familiar mechanism, namely reducing exports to reduce negative (i.e. backwards) flow in OMR if

9

certain risk triggers are met. (Doc. 482 at 15–16.) FWS witness Kaylee Allen also explains that

10

Condition 8.4.2 utilizes the same “operational premise” behind the previously-approved IOP

11

Delta operations protections for salmonids and Dela smelt, namely that if certain triggers are met

12

OMR flows are managed to prevent species from being drawn into the southern Delta, where they

13

face increased risks. (12/22/23 Allen Decl., ¶ 10.) The Court does not find these arguments

14

particularly compelling. Though the mechanism may be the same, its target is not.

15

Relatedly, State Plaintiffs reiterate the general, independent justification given for the

16

entire IOP: that it will improve coordination between the Reclamation and DWR. Defendant

17

Intervenors dispute that there will be material gains from coordination in the context of the

18

Longfin smelt provision. Even assuming improved coordination would avoid inefficiencies, the

19

Court’s obligation to ensure that any remedy is narrowly tailored means that improved

20

coordination cannot on its own justify the imposed measure(s). In evaluating this aspect of the

21

proposed 2024 Consent decree, the Court is again cognizant that the substantive fairness inquiry

22

“is nothing more than an amalgam of delicate balancing, gross approximations and rough justice.”

23

Oregon, 913 F.2d at 581 (internal quotations omitted). On balance, the Court finds that the

24

Longfin smelt provisions are not a reasonable extension of the prior IOPs because they depart

25

from past patterns and will impose upon the CVP protections for a species not yet listed under the

26

ESA.27 Obviously, a change in the ESA listing status of the Longfin smelt could alter this

27
28

27

The Court does not intend for this to be an expression of its legal opinion on the applicability of CESA to
Reclamation. That question remains unresolved.

53

1

balance.

2
3

c)

ITP Condition of Approval 8.4.3

ITP Condition of Approval 8.4.3, provision provides an “offramp” procedure, essentially

4

an exception, to the other OMR restrictions for Longfin smelt. (2024 IOP, ¶ 6.iv; State ITP

5

§ 8.4.3 at p. 84.) Given that the Court will not be approving the inclusion of the (not otherwise

6

expired) Longfin smelt provisions of 2024 IOP, there is no need to separately address this

7

offramp condition.

8

d)

9
10

Defendant Intervenors’ alternative request for the Court to
condition approval of the Longfin Smelt protections

Defendant-Intervenors advanced an alternative request that Court approval of the Longfin

11

smelt provisions “does not thereby authorize any export reduction during excess conditions (as

12

such action that would violate CVPIA section 3411(b)), nor does it excuse Federal Defendants

13

from any breach of contractual obligations.” (Doc. 504 at 15.) Because the Court will not

14

approve those provisions, this alternative request is moot, as is Federal Defendants’ motion to

15

strike the request as untimely. (See Doc. 508.)

16
17

iii.

Spring Outflow Provision

The 2023 IOP contained a provision that required Reclamation to reduce exports in the

18

event the Water Year is classified, based on the San Joaquin Valley 60-20-20 index, as Critical,

19

Dry, or Below Normal, to contribute to the implementation of State ITP Condition of Approval

20

8.17. (See Doc. 482-2, ¶ 12.) The 2024 IOP adds to that a requirement that Reclamation reduce

21

exports by 100,000 AF in the event the Water Year is classified as Above Normal (Id., ¶ 12.) The

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State ITP in turn provides additional detail about the function and purpose of Condition of

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Approval 8.17. (State ITP § 8.17 at pp. 102–104.) Generally, the Condition continues

24

implementation of the so-called “I:E Ratio” that has been utilized in prior measures to protect

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listed species. (See 2023 IOP Order at 74; 2022 IOP Order at 40–41 (providing background on I:E

26

ratio, explaining that it was not included in the 2019 NMFS BiOp, and that both the 2022 IOP and

27

PCFFA’s competing proposal sought to re-impose an I:E ratio).) In 2022, having previously

28

found the scientific basis for the I:E Ratio to be sound, the Court rejected challenges to inclusion
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1

of the Ratio in that year’s IOP. (2022 IOP Order at 97–98.) The Court did so again in 2023 in part

2

because the parties advanced no substantive objections to it. (2023 IOP Order at 74.)

3

This year, the only objection articulated by Defendant Intervenors to the modified version

4

of this requirement is that it would benefit Longfin smelt. The IOP itself states that this provision

5

is “intended to benefit Longfin smelt, Spring-run Chinook Salmon, Winter-run Chinook Salmon

6

and Central Valley Steelhead.” (Id.) Given the record evidence discussing the benefits of this

7

provision for ESA-listed fish (see 2022 IOP order at 98), the Court finds this argument

8

disingenuous at best. Absent any other substantive objections,28 the Court finds no reason to

9

depart from its prior rulings with regard to the IOP’s adoption and implementation of ITP

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Condition of Approval 8.17.

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B.

Public Interest

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Finally, applying the consent decree standard, before approving the IOP, the Court must

13

ensure that the consent decree furthers the public interest. See PG&E, 776 F. Supp. 2d at 1029.

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Whether a consent decree is within the public interest in part depends on whether it is “consistent

15

with the statute that the judgment was meant to enforce.” Turtle Island, 834 F. Supp. 2d at 1019

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(quoting Gorsuch, 718 F.2d at 1128). As the 2022 IOP Order explained, “the primary statute at

17

issue here is the ESA, although CESA is also arguably relevant.” (2022 IOP Order at 105-106 &

18

n. 67 (explaining that the goals of CESA are substantially identical to those of the ESA and that

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while some of the claims in this case arise under NEPA, NEPA has not been the focus of briefing

20

in relation to approval of the IOP or any of the alternative requests for injunctive relief).)

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The 2022 IOP Order concisely explained why the IOP was generally consistent with the

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ESA, having earlier detailed how the 2022 IOP’s provisions operate to provide additional

23

protections for listed species above and beyond those contained in the 2019 BiOps:

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The ESA’s stated purposes are “to provide a means whereby the
ecosystems upon which endangered species and threatened species
depend may be conserved . . . .” 16 U.S.C. § 1531(b); see also Hill,
437 U.S. at 174 (“[E]xamination of the language, history, and

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26
27
28

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Defendant Intervenors do object generally to the water supply impact of reducing exports by 100,000 AF, (Doc.
485 at 13, 22), and somewhat more specifically to the notion that this reduction would materially benefit Longfin
smelt. (Id. at 13.) But they do not specifically contend that the I:E ratio implemented by State ITP Condition of
Approval 8.17 is not narrowly tailored to the needs of the salmonids it is expressly designed to aid.

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structure of the [ESA] indicates beyond doubt that Congress intended
endangered species to be afforded the highest of priorities.”). While
a consent decree (or a stipulated injunction by analogy) must be
“consistent with” the relevant statutes, it need not provide all of the
relief a party might otherwise be entitled to under those laws. See
Ctr. for Biological Diversity v. Bureau of Land Mgmt., No. C 0000927 WHA, 2001 WL 777088, at *6 (N.D. Cal. Mar. 20, 2001)
(acknowledging that while the plaintiff might have been entitled to
“significant injunctive relief” had they proven all alleged ESA
violations at trial, the consent decree’s terms represented
“compromise and ongoing negotiation” to, for example, allow
“limited expansion of mining”). For all of the reasons set forth above,
the court concludes that the terms of the IOP are consistent with the
ESA.

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3
4
5
6
7
8
9

(2022 IOP Order at 106.)

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For the reasons set forth in the 2022 IOP Order, reiterated in the 2023 IOP Order, and in

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the Court’s reasoning above, it reaches the same conclusion again. Given all of the information

12

before it, with the exception of the Longfin smelt provisions, the IOP represents an appropriate

13

approach because it is more protective in key ways than the 2019 BiOps. Though these additional

14

protections may not solve all of the physical and biological problems facing the listed species, the

15

alternatives offered by the objecting parties are more inappropriate.29
VI.

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ANALYSIS OF PCFFA’S INJUNCTIVE RELIEF PROPOSAL

As PCFFA correctly points out again (Doc. 492 at 15 n. 7), the Court may adopt—if it

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18

deems doing so to be appropriate—elements of its proposed alternative relief in addition to the

19

terms of the 2023 IOP under the more traditional injunctive relief standards. However, the Court

20

has already explained above why it believes certain of the additional protections proposed by

21

PCFFA are not appropriate. For the same reasons, the court declines to impose those provisions

22

as independent forms of injunctive relief.
VII.

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BOND REQUIREMENT

Federal Rule of Civil Procedure 65(c) provides

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26
27
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The Court again acknowledges that the 2022 IOP Order found that “the duration of the stipulation should be
considered in the overall fairness analysis and that interim agreements of shorter duration—even ones that have not
complied with rulemaking procedures—may well be accepted and approved by the court.” (2022 IOP Order at 79
(citing Am. Forest Res. Council v. Ashe, 946 F. Supp. 2d 1 (D.D.C. 2013).) The 2022 and 2023 IOP Orders
concluded that the fact that the IOPs have extended over multiple years is not surprising nor dispositive. (See 2023
IOP Order at 77 n. 66.)
29

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Security. The court may issue a preliminary injunction or a
temporary restraining order only if the movant gives security in an
amount that the court considers proper to pay the costs and damages
sustained by any party found to have been wrongfully enjoined or
restrained. The United States, its officers, and its agencies are not
required to give security.

2
3
4
5

Here, the only injunctive relief being imposed is at the request of the entities subject to the

6

injunction, namely the federal and state agencies that operate the CVP and SWP, respectively.

7

Under these circumstances, no bond will be required
VIII.

8

REQUEST FOR A STAY

The final question involves the request to further stay all proceedings in these actions

9
10

through the issuance of a new Record of Decision in connection with the remand or December 20,

11

2024, whichever is sooner. (Doc. 482 at 21–23.) This time is designed in part to allow Federal

12

Defendants to conserve resources needed to complete the revisions to the BiOps on remand,

13

which is now targeted for late 2024. (See id. at 22.) The 2022 and 2023 IOP Orders found that a

14

stay was appropriate under Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). (See 2023 IOP Order

15

at 78–79. That reasoning and conclusion remains valid and no party seriously contests the stay

16

request or the parameters for expiration. Nothing precluded or precludes a party from seeking

17

injunctive relief during the pendency of a stay. The request for a stay is GRANTED.
IX.

18

CONCLUSION

19

For the reasons explained above:

20

(1) Federal Defendants’ and State Plaintiffs’ motion for an order extending the IOP as

21

modified as interim injunctive relief through December 20, 2024, (Doc. 482), is

22

GRANTED IN PART as set forth above.30
a. To ensure compliance with and appropriate opportunities for review of the

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24

Court’s order imposing the IOP, Federal Defendants shall file on the docket of

25

these cases a copy of the draft and final TMPs for 2024, along with a

26

justification for any planned departures from the IOP’s temperature targets.

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28

30

Federal Defendants are directed to forthwith submit a word processing version of the proposed order adopting the
IOP to the Court for signature. The Court will entertain language therein that provides a reasonable period of time for
Reclamation and DWR to transition away from Reclamation implementing State ITP Condition of Approval 8.4.2.

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(2) PCFFA’s request for alternative/separate injunctive relief (Doc. 492) is DENIED.

2

(3) Federal Defendants’ motion to strike the requested amendment to the IOP included in
the DEFENDANT INTERVENORS’ reply brief (Doc. 508) is DENIED AS MOOT.

3
4

(4) Federal Defendants’ and State Plaintiffs’ request for a stay of these cases through

5
6

December 31, 2023 is GRANTED.
The parties are directed to communicate with one another regularly throughout the

7

remainder of WY 2024 and to file a joint status report with the court at least 45 days in advance

8

of the expiration of the stay, or earlier if the parties conclude it is necessary, informing the Court

9

of the need for further proceedings in these actions.

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11
12

IT IS SO ORDERED.
Dated:

March 28, 2024

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