San Luis & Delta-Mendota Water Auth. & Westlands Water Dist. v. Jewell

• Decision Date: 22 August 2013
• Docket Number: Case No. 1:13–CV–01232–LJO–GSA.
• Citation: 969 F.Supp.2d 1211
• Court: U.S. District Court — Eastern District of California
• Parties: SAN LUIS & DELTA–MENDOTA WATER AUTHORITY and Westlands Water District, Plaintiffs, v. Sally JEWELL, as Secretary of the U.S. Department of the Interior; U.S. Department of the Interior; U.S. Bureau of Reclamation; Michael L. Connor, as Commissioner, Bureau of Reclamation, U.S. Department of the Interior; and David Murrillo, as Regional Director, Mid–Pacific Region, Bureau of Reclamation, U.S. Department of the Interior, Defendants, The Hoopa Valley Tribe; The Yurok Tribe; Pacific Coast Federation of Fishermen's Associations; and Institute for Fisheries Resources, Defendant–Intervenors.

969 F.Supp.2d 1211

SAN LUIS & DELTA–MENDOTA WATER AUTHORITY and Westlands Water District, Plaintiffs,

v. Sally JEWELL, as Secretary of the U.S. Department of the Interior; U.S. Department of the Interior; U.S. Bureau of Reclamation; Michael L. Connor, as Commissioner, Bureau of Reclamation, U.S. Department of the Interior; and David Murrillo, as Regional Director, Mid–Pacific Region, Bureau of Reclamation, U.S. Department of the Interior, Defendants,The Hoopa Valley Tribe; The Yurok Tribe; Pacific Coast Federation of Fishermen's Associations; and Institute for Fisheries Resources, Defendant–Intervenors.

Case No. 1:13–CV–01232–LJO–GSA.

United States District Court, E.D. California.

Aug. 22, 2013.

Daniel Joseph O'Hanlon, Kronick, Moskovitz, Tiedemann & Girard, Sacramento, CA, for Plaintiffs.

ORDER LIFTING TEMPORARY RESTRAINING ORDER AND DENYING MOTION FOR PRELIMINARY INJUNCTION

LAWRENCE J. O'NEILL, District Judge.

I. INTRODUCTION

Plaintiffs have moved for a temporary restraining order and preliminary injunction, seeking to enjoin Federal Defendants from making certain “flow augmentation” releases of water from Trinity Reservoir beginning on August 13, 2013. Docs. 14 & 16. The stated purpose of the planned releases is to “reduce the likelihood, and potentially reduce the severity, of any Ich epizootic event that could lead to associated fish die off in 2013” in the lower Klamath River. Doc. 25–3 at 1.

On August 12, 2013, this Court issued a Temporary Restraining Order (“TRO”) enjoining Federal Defendants from implementing the flow augmentation until Friday, August 15, 2013, to provide additional time to evaluate the parties' positions. Doc. 57 (TRO). On August 14, 2013, 2013 WL 4402984, having considered additional materials, the Court extended the TRO to afford an opportunity for an expedited hearing on Plaintiffs' motion for preliminary injunction. Doc. 62 (Modified TRO). Federal Defendants were ordered to show cause why the Modified TRO should not be converted to a preliminary injunction. Id. at 10. The Court expressed particular interest in hearing from witnesses who could explain the scientific basis for the flow augmentation. Id.

The Court heard evidence and argument during a two day hearing starting August 21, 2013. In addition to receiving the testimony of several expert witnesses, the parties stipulated that all previously submitted declarations may be considered as evidence. Doc. 78. at 6.

II. STANDARD OF DECISION

In order to secure injunctive relief prior to a full adjudication on the merits, a plaintiff must show “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.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Injunctive relief is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Id. at 22, 129 S.Ct. 365.

In assessing the likelihood of success on the merits in a case such as this, where all claims are governed by the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq.,¹ the court applies the deferential arbitrary and capricious standard of review. Nat'l Wildlife Fed'n v. NMFS, 524 F.3d 917 (9th Cir.2008). Under the APA, reviewing courts may reverse agency action only if it is found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Courts should defer to the agency on matters within the agency's expertise unless the agency completely failed to address a factor that was essential to making an informed decision. Nat'l Wildlife Fed'n v. NMFS, 422 F.3d 782, 798 (9th Cir.2005). A court “may not substitute its judgment for that of the agency concerning the wisdom or prudence of [the agency's] action.” River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir.2010). As the Ninth Circuit continued in River Runners:

In conducting an APA review, the court must determine whether the agency's decision is “founded on a rational connection between the facts found and the choices made ... and whether [the agency] has committed a clear error of judgment.” Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1243 (9th Cir.2001). “The [agency's] action ... need only be a reasonable, not the best or most reasonable, decision.” Nat'l Wildlife Fed'n v. Burford, 871 F.2d 849, 855 (9th Cir.1989).

Id. at 1070.

Reviewing courts must be at their “most deferential” when an agency makes predictions, “within its area of special expertise, at the frontiers of science.” Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983); Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir.2008) ( en banc ). As the Ninth Circuit held in Lands Council, courts may not “ ‘impose on the agency [their] own notion of which procedures are ‘best’ or most likely to further some vague, undefined public good.' ” 537 F.3d at 993 (quoting Churchill County v. Norton, 276 F.3d 1060, 1072 (9th Cir.2001) (alteration in original)) (quoting Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 549, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978)). In particular, an agency's “scientific methodology is owed substantial deference.” See Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1066 (9th Cir.2004). The deferential nature of a Court's inquiry into the merits is not altered at the preliminary injunction stage. Lands Council, 537 F.3d at 987;Ranchers Cattlemen Action Legal Fund v. U.S. Dep't of Agric., 415 F.3d 1078, 1093 (9th Cir.2005) (finding that, in granting a preliminary injunction, “the district court committed legal error by failing to respect the agency's judgment and expertise”).

“The deference accorded an agency's scientific or technical expertise is not unlimited.” Brower v. Evans, 257 F.3d 1058, 1067 (9th Cir.2001). Deference is not owed if “the agency has completely failed to address some factor consideration of which was essential to making an informed decision,” id., and courts are not required to defer to an agency conclusion that runs counter to that of other agencies or other individuals with specialized expertise in a particular technical area, see, e.g., Am. Tunaboat Ass'n v. Baldrige, 738 F.2d 1013, 1016–17 (9th Cir.1984) (agency decision under the Marine Mammal Protection Act was not supported by substantial evidence because agency ignored data that was product of “many years' effort by trained research personnel”).

Although a court's analysis of likelihood of success in the context of an injunctive relief request is governed by the deferential APA's arbitrary and capricious standard, see Lands Council, 537 F.3d at 987;Ranchers Cattlemen, 415 F.3d at 1093, a court does not always owe deference to federal agencies' positions concerning irreparable harm, balance of hardships, or public interest. In Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1186 (9th Cir.2011), decided in the context of a motion for a post-judgment permanent injunction, the Ninth Circuit held that a district court “abused its discretion by deferring to agency views concerning the equitable prerequisites of an injunction.” The Ninth Circuit reasoned that “[e]cology is not a field within the unique expertise of the federal government,” and remanded for analysis “without deference” to the agency's experts “simply because of their relationships with the agency.” Id. If government experts “were always entitled to deference concerning the equities of an injunction, substantive relief against federal government policies would be nearly unattainable.” Id. It is not clear whether this standard applies to pre-judgment motions for temporary and/or preliminary injunctive relief. Even if it does, there are no real disputes among the scientific experts in this case.

III. DISCUSSION

A. Factual Background.

The Trinity and Klamath River Basins drain a large area of Northern California and Southern Oregon. The Trinity River Division (“TRD”) is a component of the Central Valley Project (“CVP”), which is, in turn, one of the largest and most complex water distribution systems in the world, consisting of “an extensive system of dams, tunnels, canals, and reservoirs that stores and regulates water for California's Central Valley.” Westlands Water Dist. v. U.S. Dept. of Interior, 376 F.3d 853, 861 (9th Cir.2004). “The TRD impounds the mainstem of the Trinity River initially at Trinity Dam, behind which water accumulates to form the approximately 2,448,000 acre-foot ² (“AF”) Trinity Reservoir.” Id. A second reservoir and dam, Lewiston, which sits slightly downstream of Trinity Reservoir, regulates water releases to the Trinity River. Id. Water can also be diverted from Trinity Reservoir into the Sacramento River Basin through a tunnel at Clear Creek. Id. The Klamath River is also blocked by several dams making up the Klamath Project, the most downstream of which is Iron Gate Dam, located in California. Pac. Coast Fed'n of Fishermen's Associations v. U.S. Bureau of Reclamation, 426 F.3d 1082, 1085 (9th Cir.2005) (“ PCFFA” ).

The mainstem of the Trinity River meets the South Fork of the Trinity just south of Willow Creek, California. The Trinity River then flows through the Hoopa Valley Indian Reservation, which also encompasses a small stretch of the Klamath River as the Klamath flows west toward its confluence with the Trinity. The confluence is just north of the Hoopa Valley Reservation and within the boundary of the adjoining Yurok Reservation.³ The stretch of the Klamath below the confluence has been referenced by the parties as the “lower Klamath.” The Yurok Reservation surrounds the lower Klamath for one mile on either side of the lower Klamath, roughly from the ocean to the confluence with the Trinity, 20 miles upstream....