Pac. Coast Fed'n of Fishermen's Associations v. Ross, No. 1:20-cv-00431-DAD-EPG
| Decision Date | 24 June 2020 |
| Docket Number | No. 1:20-cv-00431-DAD-EPG |
| Citation | 468 F.Supp.3d 1266 |
| Parties | PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS, et al., Plaintiffs, v. Wilbur ROSS, et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
Daniel M. Fuchs, California Attorney General's Office, Sacramento, CA, Barbara Jane Chisholm, Altshulter Berzon LLP, San Francisco, CA, Glen Howard Spain, Institute for Fisheries Resources, Eugene, OR, for Plaintiff Pacific Coast Federation of Fishermen's Associations.
Barbara Jane Chisholm, Altshulter Berzon LLP, San Francisco, CA, Glen Howard Spain, Institute for Fisheries Resources, Eugene, OR, for Plaintiff Institute for Fisheries Resources.
Barbara Jane Chisholm, Elizabeth Michelle Vissers, Hamilton Candee, Altshulter Berzon LLP, San Francisco, CA, for Plaintiffs Golden State Salmon Association, Natural Resources Defense Council, Inc., Defenders of Wildlife, Bay. Org.
Eve W. McDonald, Lesley Lawrence-Hammer, U.S. Department of Justice, Denver, CO, Lori Caramanian, U.S. Department of the Interior, Office of the Solicitor, Lakewood, CO, Nicole Marie Smith, Department of Justice, Washington, DC, for Defendants Wilbur Ross, Chris Oliver, National Marine Fisheries Service, David Bernhardt, Acting Director Margaret Everson, U.S. Fish and Wildlife Service, Aurelia Skipwith, Brenda Burman, Bureau of Reclamation.
Sharon Margaret Nagle, Bold, Polisner, Maddow, Nelson & Judson, Walnut Creek, CA, for Defendant Contra Costa Water District.
ORDER DENYING WITHOUT PREJUDICE MOTION FOR PRELIMINARY INJUNCTION AS TO SHASTA OPERATIONS
Plaintiffs in the above-captioned action, Pacific Coast Federation of Fishermen's Associations v. Ross , 1:20-CV-00431-DAD-EPG (PCFFA ), are a coalition of six environmental organizations led by PCFFA (collectively, "PCFFA"). A closely related case, California Natural Resources Agency v. Ross , No. 1:20-CV-00426-DAD-EPG (CNRA ), is also pending before the undersigned. In CNRA , plaintiffs are the People of the State of California, California's Natural Resources Agency, and California's Environmental Protection Agency (collectively, "California").
Both sets of plaintiffs bring claims against the National Marine Fisheries Service (NMFS), the U.S. Fish and Wildlife Service (FWS), the U.S. Bureau of Reclamation (Reclamation), and various official representatives of those agencies. (CNRA , Doc. No. 51, First Amended Complaint (FAC); PCFFA , Doc. No. 52, FAC.) Plaintiffs in both cases challenge the adoption by NMFS and FWS, respectively, of a pair of "biological opinions" (BiOps) issued in 2019 pursuant to the Endangered Species Act (ESA), 16 U.S.C § 1531 et seq. , regarding the impact on various ESA-listed species of implementing Reclamation's updated plan for the long-term operation of the Central Valley Project (CVP) and the State Water Project (SWP) (collectively, "Water Projects" or "Proposed Action"). FWS's 2019 BiOp (2019 FWS BiOp) addressed the impacts of the Proposed Action on Delta smelt, while NMFS's 2019 BiOp (2019 NMFS BiOp) addressed the impacts of the updated plan upon, among others, three species of salmonids: winter-run Chinook salmon (winter-run) and spring-run Chinook salmon (spring-run), and California Central Valley steelhead (CCV steelhead). All plaintiffs allege that NMFS and FWS violated the Administrative Procedure Act (APA), 5 U.S.C. § 706, in various ways by concluding that the Water Projects would not jeopardize the continued existence of the ESA-listed species addressed in each biological opinion. Both sets of plaintiffs also bring claims against Reclamation under the ESA for unlawfully relying on the 2019 BiOps in formally adopting and implementing the Proposed Action, and the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq.1
In an order issued on May 11, 2020, the court resolved certain aspects of overlapping requests for preliminary injunctive relief filed by PCFFA and California, namely issues related to species impacts caused by the Water Projects’ export pumping operations in the southern portion of the Sacramento-San Joaquin Delta (Delta) as well as potential impacts related to the operation of New Melones Dam on the Stanislaus River. (CNRA , Doc. No. 106; PCFFA , Doc. No. 173 (Delta/Stanislaus PI Order).) However, in part in order to expedite the issuance of its May 11, 2020 ruling, the court held in abeyance certain issues raised in PCFFA's motion for preliminary injunction (PCFFA PI Motion) concerning instream temperature management measures aimed at protecting winter-run and spring-run eggs and juveniles in the reaches of the Upper Sacramento River below Shasta and Keswick Dams. (See id. )
On May 18, 2020, the court ordered the parties to submit supplemental information and briefing addressing the remaining Upper Sacramento temperature management issues posed by the pending motion. (Doc. No. 179.) First, recognizing that Reclamation had yet to issue a final temperature management plan for the Upper Sacramento River and that the facts on the ground were evolving, the court ordered Reclamation to submit the final plan, which was due to be released only a few days later—on May 20, 2020. (Id. at 18) The court also ordered the Federal Defendants to submit supplemental information indicating what, if any, efforts had been undertaken this water year to model temperature management scenarios that might have enabled Reclamation to provide more favorable temperature conditions (and, relatedly, lower temperature dependent mortality) in the Upper Sacramento River. (Id. at 18–19.) Thereafter, PCFFA was permitted to supplement its motion by articulating, with specificity: (a) what PCFFA is requesting by way of an injunction; (b) how, under present conditions (i.e., not based solely upon rough projections set forth in the 2019 NMFS BiOp), the requested injunction would benefit the species of concern; and (c) the possible tradeoffs in terms of impacts (i.e. to spring run or other species) that would likely have to be made if the requested injunction were granted. (Id. at 20.) In addition, PCFFA was directed to provide "at least a basic showing, understanding that PCFFA may not have access to all of the relevant information, that Reclamation has the ability and sufficient discretionary authority (i.e., is not constrained by other legal or contractual requirements) to implement the requested relief." (Id. )
In keeping with the supplemental briefing schedule, Reclamation submitted the final temperature management plan to the court on May 21, 2020. (Doc. No. 182.) On May 24, 2020, Federal Defendants submitted the Third Declaration of Kristin White. On June 1, 2020, PCFFA submitted a supplemental brief along with numerous attachments. (Doc. No. 185.) Federal Defendants submitted a response on June 8, 2020, along with several declarations and attachments. (Doc. No. 188.) Defendant Intervenors also submitted a combined responsive brief, along with objections to evidence offered by PCFFA. (Doc. Nos. 189, 190.)
Having carefully reviewed the extensive record and for the reasons set forth below, the court will deny PCFFA's motion for preliminary injunction as to Shasta operations without prejudice.
Winter-run are listed as endangered under the ESA. (PCFFA , Doc. No. 85-2 (2019 NMFS BiOp) at 65.) Before construction of Shasta Dam, the winter-run had access to the Sacramento River upstream of Shasta Dam's present location and to the upper tributaries where springs provided cold water throughout the summer. (Id. at 69–70.) Shasta Dam and Keswick Dam (a smaller, regulating dam that sits nine miles downstream of Shasta) block access to this extensive former spawning habitat. (Id. at 70.) As a result, the only population of winter-run spawns exclusively in the reaches of the Upper Sacramento River below Keswick Dam and this "single population ... has been supported by cold water management operations at Shasta Dam." (Id. ) Generally, winter-run adults migrate upstream through the San Francisco Bay-Delta region during the winter and spring months and spawn in the upper Sacramento river in the summer months. (Id. at 70–71.)2 The ocean stage of the winter run life cycle typically lasts three years. (PCFFA , Doc. No. 85-18 (2009 NMFS BiOp) at 87.)
Spring-run are listed as threatened under the ESA. (2019 NMFS BiOp at 79.) They are somewhat more geographically widespread than winter-run, with populations at varying levels of viability known to spawn on several tributaries to the Sacramento River. (Id. at 89.) The ocean stage of the spring-run life cycle typically lasts one to five years. (Id. at 88.) Spring-run adults typically migrate upstream, unsurprisingly, in the spring, from January to June. (Id. at 89.) In at least one location (Clear Creek), adult spring-run "hold" for several months in the mid-to-late summer before spawning in September and October. (Id. at 85.) Some spawning also occurs in the mainstem Sacramento River (id. at 89), although the numbers of fish spawning there have generally been limited in recent years. (Id. at 91.) Juvenile spring-run exhibit varied rearing behavior and outmigration timing. Some juveniles may reside in upstream areas for 12 to 16 months (these individuals are characterized as "yearlings"), while some may migrate to the ocean shortly after hatching as "young-of-the-year." (Id. at 85.)
Shasta Dam is equipped with a temperature control device (TCD) that allows Reclamation to control the temperature of water released from the Dam. (PCFFA, Doc. No. 85-12 (2019 Biological Assessment (BA)) at 4-26.) "The TCD has four levels of gates from which water can be drawn." (Id. ) During mid-winter and early spring, Reclamation uses the highest possible elevation gate(s) to draw from the upper levels of the lake and conserve the deeper, colder water. (Id. at 4-27.) During late spring and summer, as Shasta Reservoir elevation...
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