Natural Resources Defense Council v. Rodgers
| Decision Date | 28 July 2005 |
| Docket Number | No. CIV.S-88-1658 LKK.,CIV.S-88-1658 LKK. |
| Parties | NATURAL RESOURCES DEFENSE COUNCIL, et al., Plaintiffs, v. Kirk C. RODGERS, etc., et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
Adam B. Wolf, UCLA School of Law, Los Angeles, CA, Cynthia L. Koehler, Environmental Defense Fund, Michael Ramsey Sherwood, Oakland, CA, Fred H. Altshuler, Michael Rubin, Fred H. Altshuler, Altshuler, Berzon, Nussbaum, Rubin & Demain, Hamilton Candee, Katherine Scott Poole, Natural Resources Defense Council, John B. Clark, Thelen Reid and Priest LLP, Patrick O'Donnell, Judicial Council/AOC, Philip F. Atkins-Pattenson, Sheppard Mullin Richter and Hampton, Brian E. Gray, San Francisco, CA, Laurens Herby Silver, California Environmental Law Project, Mill Valley, CA, for Plaintiffs.
Stephen M. Macfarlane, U.S. Department of Justice, Environment & Natural Resources Division, Jennifer T. Buckman, James E. Thompson, Best Best & Krieger LLP, Maria A. Iizuka, U.S. Department of Justice, Lee N. Smith, Stoel Rives LLP, Sacramento, CA, Jason Cohen, K. Jack Haugrud, Eileen Sobeck, John L. Marshall, United States Department of Justice, Environment & Natural Resources Division, Washington, DC, Gary W. Sawyers, D. Tyler Tharpe, Kimble MacMichael and Upton, Fresno, CA, Gregory K. Wilkinson, Best Best and Krieger, Riverside CA, Denslow Brooks Green, Green Green and Rigby, Madera, CA, Ernest Albert Conant, Law Offices of Young Wooldridge, Bakersfield, CA, Jan Leslie Kahn, Kahn, Soares & Conway, LLP, Hanford, CA, Jeffrey A. Meith, Minasian Spruance Meith Soares and Sexton, Oroville, CA, Kenneth A. Kuney, Dooley and Herr LLP, Daniel M. Dooley, Dooley Herr & Peltzer, LLP, Visalia, CA, for Defendants.
ORDER ON MOTION FOR SUMMARY JUDGMENT RELATING TO THE ENDANGERED SPECIES ACT
Pending before the court is plaintiffs' motion for summary adjudication as to liability on their claims relating to the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq.1 Plaintiffs allege that the United States Bureau of Reclamation ("Bureau" or "BOR"), the National Marine Fisheries Service ("NMFS"), and the Fish and Wildlife Service ("FWS") failed to examine critical issues in their biological opinions before executing twenty-five year water contracts in late 2000 for the delivery of California Water Project water to over two dozen irrigation and water districts in the Friant, Hidden, and Buchanan units.
The Friant defendants bring a cross-motion for summary adjudication and the federal defendants have filed an opposition to the plaintiffs' motion.2
The Bureau's operation of Friant Dam dried up many miles of the San Joaquin River, destroying the historic fish populations. Pls.' SUF 1, citing NRDC v. Patterson, 333 F.Supp.2d 906, 924 (E.D.Cal. August 27, 2004). The Bureau's operation of Friant Dam also extirpated numerous species of native fish from the upper San Joaquin River, including spring-and fall-run Chinook salmon.
The operation of the Dam has supported irrigated agriculture through a large swath of the San Joaquin Valley. Pls.' SUF 2, 3, citing NRDC v. Patterson, id. The Bureau delivers the diverted waters of the San Joaquin to more than two dozen irrigation and water agencies that are represented in this litigation by the Friant defendants. It presently makes these deliveries under long-term water supply contracts that provide for the Bureau annually to divert, impound, and deliver up to 2.14 million acre-feet to the contractors per year. Pls.' SUF 4.
After a number of renewed contracts were rescinded as a result of this court's order in 1997 (affirmed by the Ninth Circuit in 1998), the Bureau delivered water to the Friant contractors pursuant to short term, or "interim" contracts, which plaintiffs did not challenge. Pls.' SUF 5.
In late 2000, the Bureau determined to execute a new round of water contracts.4 Pls.' SUF 6, citing FWS AR 06017924.
In a July 2000 electronic-mail ("e-mail") message from Frank Michny, an employee of the Bureau, to Cay Goude, a FWS employee, explained that "everyone in the dept up to/including Leshy want [sic] the contract renewals this year." Pls.' SUF 6, citing FWS AR 0617394.5 FWS issued its biological opinion ("BiOp") on these contracts on January 19, 2001 and NMFS issued its biological opinion on the following morning, January 20, 2001. In a letter dated October 30, 2000, the Bureau requested that NMFS concur in a Section 7 determination that the Friant contracts were not likely to adversely affect listed species. NMFS refused to do so, forcing the Bureau to request formal consultation for the long-term renewal of the Central Valley Project water service contracts on January 5, 2001. Pls.' SUF 7, citing NMFS AR 000526. As of January 5, 2001, the Bureau had not provided a final biological assessment on the Friant contracts. The Bureau provided the biological assessment on January 17, 2001. Pls.' SUF 9, citing FWS AR 0823519.
On January 19, 2001, the same day that the FWS BiOp was issued, FWS senior biologist Dr. David Wright e-mailed Michael Fris, another employee at FWS, discussing "possible holes and weaknesses in our crash BO," Pls.' SUF at 11, citing FWS AR 01802983, 018023984, including inadequate time to do a consultation, inadequate biological assessments, a track record of lack of compliance by the Bureau of Reclamation, concern that the contracts are inconsistent with CVPIA, and lack of coordination with NMFS. Id. Dr. Wright's supervisor, Michael Thabault, forwarded Dr. Wright's memorandum up the chain of command to Wayne White "in the interest of the deliberative process," and so that he could "be aware of the vulnerabilities before signing" [the biological opinion]. Pls.' SUF 11, citing FWS AR 0823985. That same day, on January 19, 2001, Dr. Wright again wrote his colleague, Michael Fris, and asked him to "slam out the Conclusion section" while he was "polishing Effects." Pls.' SUF 12, citing FWS AR 0823988.
Two of the Friant districts have additional contracts with the Bureau for delivery of water from CVP units. Pls.' SUF 13. The contracts are referred to as Chowchilla Water District, Buchanan Unit (Contract # 14-06-200-3844A-LTR1) and the Madera Irrigation District, Hidden Unit (Contract # 14-06-200-4020A-LTR1). Id. The Hidden Unit contract provides for delivery of 24,000 acre-feet of water annually from Hensley Lake to Madera Irrigation District, and the Buchanan Unit contract provides for delivery of 24,000 acre-feet annually from Eastman Lake to Chowchilla Water District. Friant Defs.' SUF 49, citing BORESA 041538. The renewal contracts concerning Hidden and Buchanan reservoirs were executed on February 14 and 15, 2001.
The January 5, 2001 formal consultation request to NMFS on the Friant contracts had not encompassed the Hidden and Buchanan contracts. Pls.' SUF 22, citing NMFS AR 000526. Nevertheless, on February 12, 2001, NMFS issued a letter in response to the Bureau's request, that NMFS did, in fact, "consider the effects of the Hidden and Buchanan contracts in the Biological Opinion issued to the Bureau on January 20, 2001." Pls.' SUF 19, citing NMS AR 0008881, et seq., NMFS AR 000915, Pls.' SUF 50, NMFS AR 000884, 000885, 000913, 000915. The Bureau did not request formal Section 7 consultation from NMFS on the Hidden and Buchanan contracts. Pls.' SUF 52, citing NMFS AR 000526-27, 000885, 000881. No biological opinion was ever issued by NMFS on the Buchanan and Hidden units. Id.
An internal FWS memorandum noted that a FWS biologist "decided on 1-19-01 to not include Hidden and Buchanan Unit Contracts in the Friant-Cross Valley Opinion due to insufficient time to make the necessary changes in the project description and effects." Pls.' SUF 14, citing FWS AR 09024885-86. After issuance of the FWS 2001 BiOp and NMFS 2001 BiOp, the Bureau notified FWS and NMFS that it had discovered an "administrative oversight" in which the tables provided to the Services as part of the project description for the consultation did not include the Hidden and Buchanan contracts. BORESA 045889, 041752.
On February 1, 2001, the Bureau formally requested consultation with FWS on the Hidden and Buchanan contracts. Pls.' SUF 19, citing FWS AR 09024891. On February 14, 2001, FWS issued a new biological opinion for the Hidden and Buchanan contracts. Pls.' SUF 16. In an e-mail dated February 2, 2001 FWS employee, Michael Fris, wrote that "I don't think this is a big deal, because I think this opinion is pretty much written up thanks to the Friant opinion." Pls.' SUF 17, citing FWS AR 09025034.
a. The Services' "Adverse Modification" Analysis
The entire discussion of the effects and cumulative effects of the long-term Friant contracts in NMFS' January 20, 2001 biological opinion spans three pages. In these pages, NMFS acknowledged the potential impact of Friant diversions on downstream fish, including the endangered Sacramento River winter-run Chinook salmon.
The parties dispute whether NMFS' 2001 biological opinion on the Friant contracts adequately addressed the recovery of winter-run Chinook salmon. Pls.' SUF 21, citing NMFS AR 900-02, Fed. Defs.' Response SUF 25, citing BORESA 041554-55, 029201-03. When the Bureau first attempted to renew the Friant contracts in 1991, it asked NMFS to concur that the contracts were not likely to adversely affect winter-run Chinook salmon. Pls.' SUF 27, citing NRDC v. Houston, 146 F.3d 1118, 1123-4, 1126 (9th Cir.1998). By the time the Bureau initiated consultation on the present Friant contracts, NMFS had listed two new threatened species that inhabit the Delta,...
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