Pac. Coast Fed'n of Fishermen's Ass'ns v. Raimondo

• Decision Date: 11 March 2022
• Docket Number: 1:20-cv-00426-DAD-EPG,1:20-cv-00431-DAD-EPG
• Parties: PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS, et al., Plaintiff, v. GINA RAIMONDO, et al., Defendants. THE CALIFORNIA NATURAL RESOURCES AGENCY, et al., Plaintiffs, v. GINA RAIMONDO, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS, et al., Plaintiff,
v.
GINA RAIMONDO, et al., Defendants.

THE CALIFORNIA NATURAL RESOURCES AGENCY, et al., Plaintiffs,
v.
GINA RAIMONDO, et al., Defendants.

Nos. 1:20-cv-00431-DAD-EPG, 1:20-cv-00426-DAD-EPG

United States District Court, E.D. California

March 11, 2022

ORDER RE MOTIONS TO REMAND WITHOUT VACATUR; STAY; AND IMPOSE INTERIM INJUNCTIVE RELIEF

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I.INTRODUCTION

These related cases involve challenges to a pair of “biological opinions” (“BiOps”) issued by the National Marine Fisheries Service (“NMFS”) and the Fish and Wildlife Service (“FWS”) in 2019 pursuant to the Endangered Species Act (“ESA”), 16 U.S.C § 1531 et seq. The 2019 BiOps address the impact on various ESA-listed species of implementing an updated plan issued by the U.S. Bureau of Reclamation (“Reclamation”) and California's Department of Water Resources (“DWR”) for the long-term operation^[1] of the Central Valley Project (“CVP”) and the State Water Project (“SWP”) (collectively, “Water Projects” or “Proposed Action”). FWS's 2019 BiOp addresses Water Project impacts on the ESA-listed delta smelt; NMFS's 2019 BiOp addresses impacts on various other aquatic species, including several salmonid species discussed in this order.

Plaintiffs^[2] in both cases allege that the 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. (PCFFA Doc. No. 52; CNRA Doc. No. 51.)^[3] Both sets of plaintiffs also bring claims against Reclamation under the ESA and the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq, related to Reclamation's adoption and implementation of the Proposed Action (Id.)^[4] The State Plaintiffs' complaint in CNRA also alleges that Reclamation has violated the APA by failing to comply with the California Endangered Species Act

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(“CESA”), conformance with which State Plaintiffs maintain is required by various provisions of federal law. (CNRA Doc. No. 51 (“CNRA FAC”), ¶¶ 145-54.)

Before the court for decision are multiple motions, including motions for voluntary remand without vacatur, a request to impose a stipulated package of interim injunctive relief measures in the CNRA case that would govern operations for the remainder of the 2022 “Water Year” (“WY”)^[5], and what is effectively a cross-motion filed by PCFFA to impose a competing package of interim injunctive measures. Because the package of pending motions is so complex, the court will provide some background before even attempting to summarize them.

II.BACKGROUND

A. The Endangered Species Act (ESA)^[6]

“Under the ESA, the Secretary of the Interior and the Secretary of Commerce are charged with identifying threatened and endangered species and designating critical habitats for those species.” Nat. Res. Def. Council v. Jewell, 749 F.3d 776, 779 (9th Cir. 2014) (“NRDC v. Jewell”) (citing 16 U.S.C. § 1533). FWS and NMFS administer the ESA on behalf of the Departments of the Interior and Commerce, respectively. See 50 C.F.R. §§ 17.11, 222.101(a), 223.102, 402.01(b). Most pertinent to these cases is Section 7 of the ESA. 16 U.S.C. § 1536 (“Section 7”). Section 7(a)(2) imposes a procedural duty on the federal agencies to consult with the FWS or NMFS, depending on the protected species, ^[7] to “insure that any action authorized, funded, or

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carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification” of critical habitats of listed species. 16 U.S.C. § 1536(a)(2). An agency “action” is defined to mean all activities carried out by federal agencies, including, among other things, the granting of licenses and permits. See 50 C.F.R. § 402.02. “If a contemplated agency action may affect a listed species, then the agency must consult with the Secretary of the Interior, either formally or informally.” Am. Rivers v. NMFS, 126 F.3d 1118, 1122 (9th Cir. 1997).

Formal consultation results in the issuance of a BiOp by the relevant wildlife agency (FWS or NMFS). See 16 U.S.C. § 1536(b). If the BiOp concludes that the proposed action would jeopardize the species or destroy or adversely modify critical habitat, see id. § 1536(a)(2), then the action may not go forward unless the wildlife agency can suggest a “reasonable and prudent alternative[]” (“RPA”) that avoids jeopardy, destruction, or adverse modification. Id. § 1536(b)(3)(A). If a BiOp concludes that the proposed action (or the action implemented in conjunction with actions described in the RPA) will cause incidental taking of protected species, but that despite this taking, the action will not jeopardize the species or threaten critical habitat, the wildlife agency

shall provide the Federal agency and the applicant concerned if any with a written statement that-

(i) specifies the impact of such incidental taking on the species,

(ii) specifies those reasonable and prudent measures that the Secretary considers necessary or appropriate to minimize such impact,

(iii) . . ., and

(iv) sets forth the terms and conditions (including, but not limited to, reporting requirements) that must be complied with by the Federal agency or applicant (if any), or both, to implement the measures specified under clauses (ii) and (iii).

Id. § 1536(b)(4). This required written statement, with its “reasonable and prudent measures” (“RPMs”) and associated terms and conditions, is referred to as an “Incidental Take Statement” (“ITS”), which, if followed, exempts the action agency from the prohibition on takings found in Section 9 of the ESA. Id. § 1536(o); Aluminum Co. of Am. v. Adm'r, Bonneville Power Admin.,

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175 F.3d 1156, 1159 (9th Cir. 1999).

B. Listed Species at Issue

The Delta smelt (Hypomesus transpacificus) is a “small, two-to-three inch species of fish endemic to the San Francisco Bay/Sacramento-San Joaquin Delta Estuary [(“Delta”)].” San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 595 (9th Cir. 2014) (“San Luis v. Jewell”). In 1993, FWS concluded the delta smelt's population had declined by ninety% over the previous twenty years and listed it as a “threatened” species under the ESA. Determination of Threatened Status for the Delta Smelt, 58 Fed.Reg. 12, 854, 12, 855-56 (Mar. 5, 1993).

Longfin smelt (Spirinchus thaleichthys) “range from the fresh waters of the Delta during their spawning season from January through March down to the coastal waters outside the Golden Gate.” (First Declaration of Bruce Herbold (“Herbold First Decl.”), CNRA, Doc. No. 55, ¶ 31.) Longfin smelt “generally live for two years and have almost always been more abundant than Delta Smelt.” (Id.) Nonetheless, Longfin smelt populations “have been in severe decline since the drought of the mid-1980s.” (Id., ¶ 32.) Longfin smelt are listed under CESA but not the ESA. (See id., ¶ 19.)

The winter-run and spring-run Chinook salmon (Oncorhynchus tshawytscha), and California Central Valley (“CV”) steelhead (Oncorhynchus mykiss), are “anadromous” fish, meaning that they live most of their lives in salt water, but “are born, mature, lay eggs, and often die in inland freshwater lakes and rivers.” San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 986-87 (9th Cir. 2014) (“San Luis v. Locke”).

After they grow from fry (baby fish) to smolts (juvenile fish) in fresh water, anadromous salmon outmigrate through rivers and deltas into the oceans and seas where they will spend most of their adult lives. When it is time to reproduce, these salmon migrate back through the deltas to the rivers and lakes in which they were born to lay eggs. During this migration, salmon must pass impediments in inland rivers such as locks, dams, channels, and pumps.

Id. at 987.

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Winter-run Chinook salmon are listed as endangered under the ESA. (Doc. No. 85-2 (2019 NMFS BiOp) at p. 65^[8].) 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 pp. 69-70.) Shasta Dam and Keswick Dam (a smaller, regulating dam that sits nine miles downstream of Shasta) now block access to this extensive former spawning habitat of the winter run. (Id. at p. 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 pp. 70-71.)^[9] The ocean stage of the winter-run life cycle typically lasts three years. (PCFFA, Doc. No. 85-18 (2009 NMFS BiOp) at p. 87.)

Spring-run Chinook salmon are listed as threatened under the ESA. (2019 NMFS BiOp at p. 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 p. 89.) The ocean stage of the spring-run life cycle typically lasts one to five years. (Id. at p. 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 p. 85.) Some spawning also occurs in the mainstem Sacramento River (id. at p. 89), although the numbers of

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fish spawning there have generally been limited in recent years. (Id. at p. 91.)...