Natural Resources Defense Council v. Kempthorne

• Decision Date: 23 January 2008
• Docket Number: No. 1:05-cv-01207-OWW-GSA.,1:05-cv-01207-OWW-GSA.
• Citation: 539 F.Supp.2d 1155
• Court: U.S. District Court — Eastern District of California
• Parties: NATURAL RESOURCES DEFENSE COUNCIL, et al., Plaintiffs, v. Dirk KEMPTHORNE, Secretary, U.S. Department of the Interior, et al., Defendants. California Department of Water Resources, State Water Contractors, San Luis & Delta-Mendota Water Authority, Glenn-Colusa Irrigation District, et al., Defendant-Intervenors.

539 F.Supp.2d 1155

NATURAL RESOURCES DEFENSE COUNCIL, et al., Plaintiffs, v. Dirk KEMPTHORNE, Secretary, U.S. Department of the Interior, et al., Defendants California Department of Water Resources, State Water Contractors, San Luis & Delta-Mendota Water Authority, Glenn-Colusa Irrigation District, et al., Defendant-Intervenors.

No. 1:05-cv-01207-OWW-GSA.

United States District Court, E.D. California.

January 23, 2008.

COPYRIGHT MATERIAL OMITTED

Anjali India Jaiswal, Hamilton Candee, Katherine Scott Poole, Michael E. Wall, Selena Katherine Kyle, Natural Resorces Defense Council, Fred H. Altshuler, Jamie L. Crook, Altshuler Berzon LLP, Trent William Orr, Law Office of Trent W. Orr, San Francisco, CA, Deborah S. Reames, Michael Ramsey Sherwood, Earthjustice Legal Defense Fund Incorporated, Oakland, CA, for Plaintiffs.

James A. Maysonett, Department of Justice, Wildlife and Marine Resources Section, Washington, DC, for Defendants.

Daniel Joseph O'Hanlon, Hanspeter Walter, Clifford W. Schulz, Kronick, Moskovitz, Tiedemann & Girard, Jon David Rubin, Diepenbrock Harrison, Brenda Washington Davis, Central Valley Law Group LLP, Christian Charles Scheuring, John Robert Hewitt, Ronda Azevedo Lucas, California Farm Bureau Federation, Andrew Morrow Hitchings, Jacqueline Leigh McDonald, Somach, Simmons & Dunn, Linus Serafeim Masouredis, Metropolitan Water District of Southern California, Deborah A. Wordham, California Attorney General's Office, Clifford Thomas

Lee, California Attorney General's Office, Department of Justice, Kevin M. O'Brien, Steven Paul Saxton, Downey Brand LLP, Sacramento, CA, Christopher H. Buckley, Jr., Gibson Dunn and Crutcher. LLP, Washington, DC, Gregory K. Wilkinson, Anthony Leon Beaumon, Steven M. Anderson, Best Best & Krieger, LLP, Riverside, CA, Mark Diaz Servino, Best Best and Krieger LLP, Irvine, CA, Anita Elisabet Ruud, Office of the Attorney General, San Francisco, CA, J. Mark Atlas, Frost Krup and Atlas, Willows, CA, for Defendant-Intervenors.

ORDER DENYING DEFENDANT-INTERVENOR STATE WATER CONTRACTORS' MOTION TO DISMISS PLAINTIFFS' SECOND SUPPLEMENTAL COMPLAINT (Doc. 502)

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT-INTERVENORS SAN LUIS & DELTA-MENDOTA WATER AUTHORITY, ET AL. MOTION TO DISMISS PLAINTIFFS' SECOND SUPPLEMENTAL COMPLAINT (Doc. 503)

ORDER DENYING DEFENDANT-INTERVENOR CALIFORNIA DEPARTMENT OF WATER RESOURCES' MOTION TO DISMISS PLAINTIFFS' SECOND SUPPLEMENTAL COMPLAINT (Doc. 516)

OLIVER W. WANGER, District Judge.

I. Introduction.

This case concerns the ongoing controversy regarding the threatened delta smelt species as it is impacted by the coordinated operations of the federally-managed Central Valley Project ("CVP") and California's State Water Project ("SWP"). In the motions now before the court, defendant-intervenors State Water Contractors ("SWC"); San Luis & Delta Mendota Water Authority ("SLDMWA"), Westlands Water District ("Westlands"), California Farm Bureau ("CFB"), and Glenn-Colusa Irrigation District ("GCID"), et al. (collectively "San Luis Parties"); and the California Department of Water Resources ("DWR"), have filed three separate motions to dismiss Natural Resources Defense Council's, et al. ("Plaintiffs") second supplemental complaint ("SSC").

II. Background.

Plaintiffs' first supplemental complaint alleged that the United States Fish and Wildlife Service ("FWS") failed to perform its duties under the Endangered Species Act ("ESA") § 7(a)(2) in consulting with the United States Bureau of Reclamation ("Bureau") regarding the impacts of the 2004 Operations Criteria and Plan ("OCAP") on the delta smelt. On March 20, 2006, Plaintiffs sent a sixty-day notice of intent to sue for violations of ESA § 7(a) and § 7(d) to Secretary of the Interior Gale A. Norton ("Norton"); to Kirk C. Rodgers, Regional Director, Mid-Pacific Region of the Bureau of Reclamation ("Rodgers"); and John W. Keys, Commissioner, Bureau of Reclamation ("Keys").

On May 25, 2007, summary judgment was granted in favor of Plaintiffs on their claim against FWS under the Administrative Procedures Act ("APA"), 5 U.S.C. § 706. The summary judgment decision found, among other things, that the OCAP Biological Opinion ("OCAP BO") was unlawful and inadequate in several respects. Supplemental briefing on interim remedies was ordered pending reconsultation and the issuance of a new biological opinion and a remedies evidentiary hearing scheduled.

In their remedies briefs, Plaintiffs maintained that in light of summary judgment in their favor, the court has jurisdiction, through its equitable powers under the APA, to enforce its judgment by requiring the Bureau to modify its CVP operations and DWR to modify its SWP operations, to prevent jeopardy to and extinction of the delta smelt, to avoid adverse modification of its critical habitat, and to prevent the irreversible and irretrievable commitment of resources. On July 10, 2007, Plaintiffs moved to supplement their complaint to add two claims against the Bureau to resolve uncertainty over the court's authority to enjoin the Bureau from committing ongoing violations of the ESA. Plaintiffs were granted leave to file the SSC on August 30, 2007.

The SSC, among other things, added two claims for relief. The second claim for relief alleges that the Bureau has failed and is failing to ensure that its actions will neither jeopardize the continued existence of the delta smelt or destroy its critical habitat in violation of ESA § 7(a)(2) and APA § 706. The second claim for relief provides:

SECOND CLAIM FOR RELIEF

Violations Of ESA And APA: Bureau's Failure To Ensure That Its Actions Are Not Likely To Jeopardize The Continued Existence Of The Species Or Destroy Or Adversely Modify Their Critical Habitat (16 U.S.C. § 1536(a)(2); 5 U.S.C. § 706)

74. Plaintiffs re-allege, as if fully set forth herein, each and every allegation contained in the preceding paragraphs.

75. As alleged above, the Biological Opinion incorrectly concludes that the 2004 OCAP will not jeopardize the delta smelt. Moreover, the Bureau has an independent duty to ensure that its actions avoid jeopardy. Implementation of the 2004 OCAP operations, including its direct, indirect, and cumulative effects, has both short-term and long-term adverse impacts on the delta smelt that jeopardize its continued existence. Accordingly, notwithstanding the Biological Opinion, by implementing the 2004 OCAP the Bureau has failed and is failing to ensure that its actions will not jeopardize the continued existence of the delta smelt, in violation of section 7(a)(2) of the ESA, 16 U.S.C. § 1536(a)(2).

76. For the same reasons, the Bureau also has failed and is failing to ensure that its actions are not likely to destroy or adversely modify the designated critical habitat of the delta smelt. The final rules designating critical habitat for the delta smelt describe many features of critical habitat essential for these species' recovery, including, among other things, adequate water quality and quantity, water temperature, and safe passage conditions. Implementation of the 2004 OCAP will adversely impact these features of designated critical habitat and will destroy and adversely modify the ability of the critical habitat to contribute to the recovery of the species, in violation of section 7(a)(2) of the ESA, 16 U.S.C. § 1536(a)(2).

77. Defendants' failure to insure that their actions will not jeopardize the continued existence of the delta smelt or destroy or adversely modify their critical habitat is arbitrary, capricious, an abuse of discretion, and not in accordance with law, contrary to the APA, 5 U.S.C. § 706(2).

The third claim for relief alleges that the Bureau has taken and is taking actions that constitute irreversible and irretrievable commitments of resources prior to completion of a valid § 7 consultation in violation of ESA § 7(d) and APA § 706. The third claim for relief provides:

THIRD CLAIM FOR RELIEF

Violations Of ESA And APA: Irretrievable And Irreversible Commitments Of Resources That Foreclose Reasonable And Prudent Alternatives (16 U.S.C. § 1536(d); 5 U.S.C. § 706)

78. Plaintiffs re-allege, as if fully set forth herein, each and every allegation contained in the preceding paragraphs.

79. Section 7(d) of the ESA, 16 U.S.C. § 1536(d), prohibits federal agencies, including the Bureau, from making any irretrievable and irreversible commitments of resources during consultation pursuant' to section 7(a)(2) of the ESA; 16 U.S.C. § 1536(a)(2), "which [have] the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures" that would avoid jeopardy to the species. This prohibition continues until the requirements of section 7(a) (2) are satisfied. 50 C.F.R. § 402.09.

80. The restrictions imposed by section 7(d) are in effect because the Bureau has not yet completed the consultation process lawfully by ensuring that a valid biological opinion is in place regarding the 2004 OCAP before putting the species at risk. The prohibition against the irreversible and irretrievable commitment of resources applies to and bars the implementation of any changes to CVP and SWP operations contained in the 2004 OCAP where such implementation involves irreversible or irretrievable commitments of resources until a valid section 7 consultation has been completed and a valid biological opinion has been adopted.

81. The Bureau has taken and is taking actions that could foreclose implementation of reasonable and prudent alternatives that would avoid jeopardy, including but not limited to signing and implementing new long-term contracts promising delivery of substantially increased quantities of water, in violation of section 7(d). This violation is arbitrary, capricious, an abuse of discretion, and not in accordance with law, contrary to the APA, 5 U.S.C. § 706(2).

SWC filed sits motion to dismiss or strike (Doc. 502) on October 1, 2007. The San Luis Par...