San Luis & Delta-Mendota Water Auth. v. Salazar

• Decision Date: 13 November 2009
• Docket Number: No. 1:09-CV-407 OWW DLB.,1:09-CV-407 OWW DLB.
• Citation: 686 F. Supp.2d 1026
• Court: U.S. District Court — Eastern District of California
• Parties: Delta Smelt Consolidated Cases. SAN LUIS & DELTA-MENDOTA WATER AUTHORITY, et al. v. SALAZAR, et al. State Water Contractors v. Salazar, et al. Coalition for a Sustainable Delta, et al. v. United States Fish and Wildlife Service, et al. Metropolitan Water District v. United States Fish and Wildlife Service, et al. Stewart & Jasper Orchards et al. v. United States Fish and Wildlife Service.

686 F.Supp.2d 1026

Delta Smelt Consolidated Cases.

SAN LUIS & DELTA-MENDOTA WATER AUTHORITY, et al. v. SALAZAR, et al.

State Water Contractors v. Salazar, et al.

Coalition for a Sustainable Delta, et al. v. United States Fish and Wildlife Service, et al.

Metropolitan Water District v. United States Fish and Wildlife Service, et al.

Stewart & Jasper Orchards et al. v. United States Fish and Wildlife Service.

No. 1:09-CV-407 OWW DLB.

United States District Court, E.D. California.

November 13, 2009.

Audrey M. Huang, Paul S. Weiland, John J. Flynn, III, Robert C. Horton, Nossaman LLP, Irvine, CA, Christopher J. Carr, Morrison and Foerster LLP., San Francisco, CA, Brandon Murray Middleton, Damien Michael Schiff, James S. Burling, M. Reed Hopper, Pacific Legal Foundation, Brenda Washington Davis, Leslie R. Wagley, The Brenda Davis Law Group, Daniel Joseph O' Hanlon, Hanspeter Walter, William Thomas Chisum, Kronick, Moskovitz, Tiedemann & Girard, Eileen M. Diepenbrock, Jon David Rubin, Jonathan R. Marz, Diepenbrock Harrison, Sacramento, CA, Thomas William Birmingham, Westlands Water District, Gary William Sawyers, Law Offices of Gary W. Sawyers, Fresno, CA, for San Luis & Delta-Mendota Water Authority, State Water Contractors, Coalition for a Sustainable Delta, Metropolitan Water District, Stewart & Jasper Orchards, et al.

James A. Maysonett, Srinath Jay Govindan, Department of Justice, Ethan Carson Eddy, Govt., Kevin William McArdle, Srinath Jay Govindan, US Dept. of Justice, Wildlife & Marine Resources Section, Washington, DC, Jonathan R. Marz, Diepenbrock Harrison, Sacramento, CA, Allison Ernestine Goldsmith, Attorney General's Office for the State of California, Cecilia Louise Dennis, Clifford Thomas Lee, Michael M. Edson, California Attorney General's Office, San Francisco CA, for Salazar, et al., United States Fish and Wildlife Service, et al.

MEMORANDUM DECISION RE CROSS-MOTIONS FOR SUMMARY JUDGMENT ON NEPA ISSUES

OLIVER W. WANGER, District Judge.

I. INTRODUCTION

This case arises out of the United States Fish and Wildlife Service's ("FWS") December 15, 2008 biological opinion ("BiOp" or "2008 smelt BiOp") addressing the impact of coordinated operations of the Central Valley Project ("CVP") and State Water Project ("SWP") (the "Projects") on the threatened delta smelt, prepared pursuant to Section 7(a)(2) of the Endangered Species Act ("ESA"), 16 U.S.C. 1536(a)(2). Because the BiOp found that planned coordinated Project operations would jeopardize the continued existence of the delta smelt and/or adversely modify its critical habitat, FWS proposed a Reasonable and Prudent Alternative ("RPA") that imposes certain operating restrictions on the Projects. The Bureau of Reclamation ("Reclamation") provisionally accepted and then implemented the BiOp and its RPA.

Plaintiffs in three of the five consolidated cases, namely San Luis & Delta Mendota Water Authority ("Authority") and Westlands Water District ("Westlands"), State Water Contractors ("SWC"), and Metropolitan Water District of Southern California ("MWD") (collectively, "Plaintiffs") move for summary judgment, arguing that issuance and/or implementation of the BiOp/RPA is a "major federal action" that will inflict harm on the human environment, and that FWS and/or Reclamation should have, but did not conduct an environmental assessment ("EA") or prepare an environmental impact statement ("EIS") under the National Environmental Policy Act ("NEPA"). Doc. 245. Federal Defendants and Defendant-Intervenors oppose, Docs. 290 & 281, and have submitted supporting declarations, Docs. 290-2 (Paul Fujitani), 281-2 (Charles A. Simenstad). Plaintiffs replied and submitted a supporting declaration. Docs. 297 & 197-2 (Thomas Boardman).

Defendant-Intervenors cross-move for summary judgment on this claim, arguing that FWS was not required to prepare an EIS in connection with issuance of the BiOp. Doc. 244. Plaintiffs oppose. Doc. 287. Defendant-Intervenors filed a reply. Doc. 298.

In response to the district court's request for further argument on Reclamation's liability under NEPA, the parties submitted supplemental briefs. Docs. 357-58, 360-61.

II. STATEMENT OF FACTS

The 2008 BiOp concluded that "the coordinated operations of the CVP and SWP, as proposed, are likely to jeopardize the continued existence of the delta smelt" and "adversely modify delta smelt critical habitat." BiOp 276-78.¹ As required by law, FWS's BiOp includes an RPA designed to allow the projects to continue operating without causing jeopardy or adverse modification. BiOp 279. The RPA includes various operational components designed to reduce entrainment of smelt during critical times of the year by controlling and reducing water flows in the Delta. BiOp 279-85.

Component 1 (Protection of the Adult Delta Smelt Life Stage) consists of two Actions related to Old and Middle River ("OMR") flows. Action 1, requiring OMR flows to be no more negative than -2,000 cubic feet per second ("cfs") on a 14-day average and no more negative than -2,500 cfs for a 5-day running average, is triggered during low and high entrainment risk periods based on physical and biological monitoring. BiOp 281, 329. Action 2, setting maximum negative flows for OMR, is triggered immediately after Action 1 ends or if recommended by the Smelt Working Group ("SWG"). BiOp 281-282, 352.

Under Component 2 (Protection of Larval and Juvenile Delta Smelt), OMR flows must remain between -1,250 and -5,000 cfs beginning when Component 1 is completed, when Delta water temperatures reach 12 Celsius, or when a spent female smelt is detected in trawls or at salvage facilities. BiOp 282, 357-358. Component 2 remains in place until June 30 or when the Clifton Court Forebay water temperature reaches 25 Celsius. BiOp 282, 368.

Component 3 (Improve Habitat for Delta Smelt Growth and Rearing) requires sufficient Delta outflow to maintain average mixing point locations of Delta outflow and estuarine water inflow ("X2") from September to December, depending on water year type, in accordance with a specifically described "adaptive management process" overseen by FWS. BiOp 282-283, 369.

Under Component 4 (Habitat Restoration), the California Department of Water Resources ("DWR") is to create or restore 8,000 acres of intertidal and subtidal habitat in the Delta and Suisun Marsh within 10 years. BiOp 283-284, 379.

Under Component 5 (Monitoring and Reporting), the Projects gather and report information to ensure proper implementation of the RPA actions, achievement of physical results, and evaluation of the effectiveness of the actions on the targeted life stages of delta smelt, so that the actions can be refined, if needed. BiOp 284-285, 328, 375, 37.

It is undisputed that no NEPA documentation was prepared by either FWS or Reclamation in connection with the issuance, provisional adoption, and/or implementation of the BiOp and RPA.

III. ANALYSIS

A. Threshold Issues.

1. Requests for Judicial Notice.

a. Plaintiffs' Request for Judicial Notice.

Plaintiffs request judicial notice of the May 29, 2009 Findings of Fact and Conclusions of Law entered in this case. Doc. 94. This document is judicially noticeable as part of the court record. Plaintiffs also request judicial notice of a document authored by DWR, entitled "Delta Water Exports Could be Reduced by Up to 50 Percent Under New Federal Biological Opinion: DWR Director Snow Responds to Delta Smelt Biological Opinion" (Dec. 15, 2008). This is a judicially noticeable record or report of an administrative body, see United States v. 14.02 Acres of Land More or Less in Fresno County, 547 F.3d 943, 955 (9th Cir.2008), although only for its publication and the existence of its content, not for the truth of disputed matters asserted in the document.

b. Defendant Intervenors' Request for Judicial Notice.

Defendant Intervenors request judicial notice of the following three documents attached to the Declaration of George Torgun, Esq., Doc. 285:

• Exhibit 1: Reclamation's Draft EIS/EIR for the El Dorado County Water Agency Proposed Water Service Contract.

• Exhibit 2: A Summary Document, published by CalFed, concerning the Two Gates Project.

• Exhibit 3: A DWR Fact Sheet on the Two Gates Project.

These are public documents published by administrative bodies and readily available on the internet. They may be judicially noticed for their publication and their contents, but not for the truth of disputed matters asserted in the documents.

2. Effect of Preliminary Injunction Decision.

The May 29, 2009 Findings of Fact and Conclusions of Law and Order Re Plaintiffs' Motion for Preliminary Injunction ("May 29, 2009 PI Decision" or "PI Decision"), found that Plaintiffs were likely to succeed on their NEPA claim against the FWS. Doc. 94. Plaintiffs cite the PI Decision's findings, suggesting that the district court "has already determined" several key issues in this case. See, e.g., Doc. 245-2 at 7. But, "decisions on preliminary injunctions are just that—preliminary—and must often be made hastily and on less than a full record." S. Or. Barter Fair v. Jackson County, Or., 372 F.3d 1128, 1136 (9th Cir.2004) (citing Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981)).

Thus, even where the facial challenge presented to the district court here involved primarily issues of law, we see no reason why a court should deviate from the general rule that decisions on preliminary injunctions `are not binding at trial on the merits,' and do not constitute the law of the case.

Id. (internal citations and quotations omitted). Although the PI Decision may be considered, it is not law of the case nor is it dispositive of any issue presently before the court.

There is no requirement that Defendants supply new law or facts to justify a different decision at the summary judgment stage. Although a court has the discretion to dissolve or modify a preliminary injunction upon introduction...