Aqualliance v. U.S. Bureau of Reclamation

• Decision Date: 11 July 2014
• Docket Number: Case No. 1:14-CV-000945-LJO-BAM
• Court: U.S. District Court — Eastern District of California
• Parties: AQUALLIANCE, a non-profit corporation, and CALIFORNIA SPORTFISHING PROTECTION ALLIANCE, a non-profit corporation, Plaintiffs, v. UNITED STATES BUREAU OF RECLAMATION, a federal agency; RICHARD J. WOODLEY, in his official capacity; LOWELL PIMLEY, in his official capacity; and DAVID MURILLO, in his official capacity, Defendants, SAN LUIS & DELTA-MENDOTA WATER AUTHORITY, et al., Defendant-Intervenors.

AQUALLIANCE, a non-profit corporation, and CALIFORNIA SPORTFISHINGPROTECTION ALLIANCE, a non-profit corporation, Plaintiffs, v. UNITED STATES BUREAU OF RECLAMATION, a federal agency;RICHARD J. WOODLEY, in his official capacity; LOWELL PIMLEY,in his official capacity; and DAVID MURILLO, in his official capacity, Defendants,SAN LUIS & DELTA-MENDOTA WATER AUTHORITY, et al., Defendant-Intervenors.

Case No. 1:14-CV-000945-LJO-BAM

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dated: July 11, 2014

MEMORANDUM DECISION AND

ORDER DENYING MOTION FOR

PRELIMINARY INJUNCTION

(DOC. 7)

I. INTRODUCTION

Plaintiffs AquAlliance and the California Sportfishing Protection Alliance ("Plaintiffs"), both non-profit environmental organizations, bring this lawsuit against the United States Bureau of Reclamation ("Reclamation" or "the Bureau"), as well as various federal officers¹ (collectively, "Federal Defendants"), alleging that the Bureau violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, et seq., by approving the "2014 San Luis & Delta-Mendota Water Authority Water Transfer Project" (the "2014 Transfer Project"), which would permit water rights holders or contractors north of the Sacramento-San Joaquin Delta ("Delta") to sell water to members of the San Luis & Delta-Mendota Water Authority ("SLDMWA"), whose members then would make use of the water in areas that lie south of the Delta. Doc. 1 ("Compl.") at ¶ 57. The Bureau's role would be to review any proposed transfers and facilitate those transfers by conveying the water through the Delta by way of the Jones and Banks Pumping Plants and the Delta-Mendota Canal. Id.

In April 2014, the Bureau issued an Environmental Assessment ("EA") and approved a Finding of No Significant Impact ("FONSI") for the 2014 Transfer Project under NEPA, 42 U.S.C. § 4321, et seq. Among other things, the EA and FONSI state that "[s]pecial status fish species," such as the Delta smelt, "are generally not in the Delta during the transfer period (July-September) and effects to these fish species from transferring water during this timeframe were considered in the [National Marine Fisheries Service and U.S. Fish and Wildlife Service Biological Opinions]." Declaration of Kaylee Allen ("Allen Decl."), Doc. 33-1, Ex. 2 ("Final EA") at 3-13; Allen Decl., Ex. 3 ("FONSI") at 8.²

Plaintiffs allege that the Bureau's approval of the 2014 Transfer Project violated NEPA in two ways.³ First, Plaintiffs assert that the Final EA and FONSI's conclusion that Delta smelt will not be present in the interior Delta is arbitrary and capricious because it fails to acknowledge that, due to hydrologic conditions and pumping practices, the low-salinity zone ("LSZ"), in which Delta smelt normally reside during the relevant time of the year, will move into the central Delta this year. Doc. 8 at 14. Plaintiffs also assert that the Bureau should have prepared a supplemental EA to take into consideration "significant new information" that ostensibly emerged after the issuance of the EA, namely (1) the May 2, 2014 State Water Resources Control Board ("SWRCB") order that relaxed Delta water quality standards; and (2) an analysis performed by Plaintiffs' expert, Tom Cannon, that purports to show that the method used to estimate Delta outflow for management purposes underestimates actual Delta outflow. Id. at 11.

This case was originally filed in the Sacramento Division of the Eastern District of California,but was transferred to the undersigned in the Fresno Division pursuant to Local Rule 123 (Related Cases). Doc. 24. On June 23, 2014, the Court granted the unopposed petition for intervention of SLDMWA and Westlands Water District, one of SLDMWA's member water districts (collectively, "Defendant-Intervenors"). Doc. 31.

Before the Court is Plaintiffs' motion for a preliminary injunction that would bar Federal Defendants from approving or carrying out any water transfers under the 2014 Transfer Project. Doc. 8. Although Plaintiffs' motion was not filed until June 13, 2014, in light of the allegation that transfers are scheduled to take place between July 1, 2014 and September 30, 2014, Plaintiffs' motion to shorten time was granted and a hearing was set for July 10, 2014. See Docs. 14 & 22. Federal Defendants and Defendant Intervenors filed oppositions on June 27, 2014. See Docs. 33 & 48. Plaintiffs filed a reply on July 3, 2014. Doc. 64. On July 7, 2014, the Court requested supplemental briefing on several discrete legal issues and vacated the July 10 hearing. Doc. 71. The parties responded to the Court's request on July 9, 2014. Docs. 72-74. Having reviewed the entire record, the Court finds this matter suitable for decision on the papers pursuant to Local Rule 230(g). As set forth below, the Court finds that Plaintiffs are not likely to succeed on the merits of the NEPA claims presented and that, therefore, the pending motion for a preliminary injunction must be DENIED.

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 Res. Defense Council, Inc., 555 U.S. 7, 20 (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.

The Ninth Circuit follows a "sliding scale" approach to preliminary injunctions. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011). Under this approach, a weaker showing as to the likelihood of success on the merits may be offset by a stronger showing with respectto the balance of the equities. Id. at 1131-32. For example, if the moving party is unable to establish a likelihood of success on the merits, preliminary injunctive relief may still be had if the movant can show that (1) there are at least "serious questions" going to the merits; (2) the balance of the hardships tips "sharply" in its favor; and (3) the other factors listed in Winter (i.e., irreparable harm and in the public interest) are satisfied. Id. at 1135. "Serious questions" in the context of preliminary injunctive relief are those that are "substantial, difficult, and doubtful, as to make them a fair ground for litigation and thus for more deliberative investigation." Republic of Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988) (citation and internal quotation marks omitted). They do not need to "promise a certainty of success, nor even present a probability of success, but must involve a fair chance of success on the merits." Id. (citation and internal quotation marks omitted).

III. BACKGROUND⁴

The Central Valley Project ("CVP") and the State Water Project ("SWP"), "operated respectively by [Reclamation] and the State of California, are perhaps the two largest and most important water projects in the United States." San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 592 (9th Cir. 2014) ("San Luis v. Jewell"). "These combined projects supply water originating in northern California to more than 20,000,000 agricultural and domestic consumers in central and southern California." Id. As part of CVP operations, Reclamation releases water stored in CVP reservoirs in northern California, which then flows down the Sacramento River to the Delta. Id. at 594. Pumping plants in the southern region of the Delta then divert water through the Delta-Mendota Canaland other facilities to various users, including members of SLDMWA.⁵

As a condition of Reclamation's operation of CVP facilities in the Delta, Reclamation must comply with SWRCB Decision 1641 ("D-1641"). See Pac. Coast Fed'n of Fishermen's Assoc'ns v. Gutierrez, 606 F. Supp. 2d 1122, 1133 (E.D. Cal. 2008). D-1641 implements the Bay Delta Water Quality Control Plan through modifications to the CVP, SWP, and other water rights permits. See generally Allen Decl., Ex. 12 (hereinafter cited only as "D-1641"). D-1641 affects operations of the CVP by regulating salinity levels in the Delta, setting minimum Delta outflow requirements, and regulating export rates of the federal and state water projects. Id.

Reclamation provides CVP water to users through different types of contracts provided for under Reclamation Law. See Tehama-Colusa Canal Auth. v. U.S. Dep't of the Interior, 721 F.3d 1086, 1091 (9th Cir. 2013) (summarizing the types and priorities of contracts within the CVP). Because of the extreme drought conditions in California, this water year Reclamation anticipates delivering to Sacramento River Settlement Contractors 75% of their contract supplies, and 0% of contract supplies to south-of-Delta water service contractors, including SLDMWA. Final EA 1-3; Decl. of Richard Woodley ("Woodley Decl."), Doc. 47, at ¶ 6.

A. Delta Smelt.

The Delta is "the lone habitat for the delta smelt, a threatened species under the Endangered Species Act." San Luis v. Jewell, 747 F.3d at 592. It is undisputed that the delta smelt is in "imminent danger of extinction." Id. at 595-96. "The 2008 delta smelt population was estimated at 1.5% of [its] 1980 level ... and 2009 levels were estimated to be the lowest on record." Id. at 596 n. 4.

"In 2008, Reclamation requested a biological opinion [("2008 BiOp")] from the U.S. Fish and Wildlife Service [("FWS")], in accord with the [Endangered Species Act ("ESA")], on whether its continued operations would jeopardize the smelt." Id. at 592. In its 2008 BiOp, FWS informedReclamation that continued, long-term CVP operations would jeopardize the continued existence of the delta smelt, but proposed a multi-component "reasonable and prudent alternative" ("RPA") that would avoid jeopardy, which Reclamation has adopted and is implementing. Id; Allen Decl., Ex. 4 (2008 BiOp) at 294-300.⁶

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