San Luis v. Badgley

• Decision Date: 28 June 2000
• Docket Number: No. CV-F-99-5658 OWW.,CV-F-99-5658 OWW.
• Citation: 136 F.Supp.2d 1136
• Court: U.S. District Court — Eastern District of California
• Parties: SAN LUIS & Delta-Mendota Water Authority, Plaintiffs, v. Anne BADGLEY, et al., Defendants.

Page 1136

136 F.Supp.2d 1136

SAN LUIS & Delta-Mendota Water Authority, Plaintiffs, v. Anne BADGLEY, et al., Defendants.

No. CV-F-99-5658 OWW.

United States District Court, E.D. California.

June 28, 2000.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Thomas William Birmingham, Daniel J. O'Hanlon, Kronick Moskovitz Tiedemann and Girard, Sacramento, CA, for Plaintiffs.

Jane P. Davenport, Matthew A. Love, United States Department of Justice, Environment & Natural Resources Division, Washington, DC, for Defendants.

MEMORANDUM AND ORDER RE CROSS MOTIONS FOR SUMMARY JUDGMENT; DEFENDANTS' MOTION TO STRIKE; PLAINTIFFS' MOTION TO SUPPLEMENT THE RECORD

WANGER, District Judge.

I. INTRODUCTION

This matter is before the Court on various motions to determine a challenge to the United States Fish and Wildlife Service's ("USFWS") final rule listing the Sacramento splittail ("splittail") as a threatened species under the Endangered Species Act ("ESA"). In November 1999, the parties submitted cross-motions for summary judgment. See Docs. 36, 40. With their summary judgment motion, Plaintiffs' filed the declaration of Dr. Charles Hanson. See Doc. 38. As exhibits to his declaration, Dr. Hanson included calculations he made using the 1998 abundance indices data included in the Administrative Record regarding splittail population trends. See Hanson Decl. ¶ 4. Defendants moved to strike the declaration of Dr. Charles Hanson and all the references to it in Plaintiffs' brief because his study was not part of the administrative record. See Doc. 58. Plaintiffs opposed this motion and moved to supplement the record, see Doc. 53, to which Defendants replied, see Doc. 68.

II. LEGAL STANDARD

Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c); see Maffei v. Northern Ins. Co. of New York, 12 F.3d 892, 899 (9th Cir.1993). A genuine issue of fact exists when the non-moving party produces evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir.1995); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252-56, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The non-moving party cannot simply rest on its allegation without any significant probative evidence tending to support the complaint. U.A. Local 343 v. Nor-Cal Plumbing, Inc., 48 F.3d 1465, 1471 (9th Cir.), cert. denied, 516 U.S. 912, 116 S.Ct. 297, 133 L.Ed.2d 203 (1995).

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The more implausible the claim or defense asserted by the opposing party, the more persuasive its evidence must be to avoid summary judgment. United States ex rel. Anderson v. Northern Telecom, Inc., 52 F.3d 810, 815 (9th Cir.), cert. denied, 516 U.S. 1043, 116 S. Ct. 700, 133 L.Ed.2d 657 (1996). Nevertheless, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in its favor." Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505. A court's role on summary judgment, however, is not to weigh the evidence, i.e., issue resolution, but rather to find genuine factual issues. Abdul-Jabbar v. General Motors Corp., 85 F.3d 407, 410 (9th Cir.1996).

Evidence submitted in support of or in opposition to a motion for summary judgment must be admissible under the standard articulated in 56(e). See Keenan v. Hall, 83 F.3d 1083, 1090 n. 1 (9th Cir. 1996); Anheuser-Busch, Inc. v. Nat'l Beverage Distributors, 69 F.3d 337, 345 n. 4 (9th Cir.1995). Properly authenticated documents, including discovery documents, although such documents are not admissible in that form at trial, can be used in a motion for summary judgment if appropriately authenticated by affidavit or declaration. United States v. One Parcel of Real Property, 904 F.2d 487, 491-492 (9th Cir. 1990). Supporting and opposing affidavits must be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Fed. R.Civ.P. 56(e); Conner v. Sakai, 15 F.3d 1463, 1470 (9th Cir.1993), rev'd on other grounds sub nom. Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995).

III. BACKGROUND

A. UNDISPUTED FACTS

On February 8, 1999, USFWS published its final rule listing the splittail as a threatened species pursuant to the ESA. See Def. Facts ¶ 1, Pl. Facts ¶ 1. The splittail is a large cyprinid fish, see Pl. Facts ¶ 3, Def. Facts ¶ 3, which is a member of the minnow family, see Pl. Facts ¶ 4, Def. Facts ¶ 4. Splittail are dull, silvery-gold on the sides and olive-gray on their backs. See Pl. Facts ¶ 4, Def. Facts ¶ 4. The name "splittail" refers to the distinctive tail of the fish. See id. "Adults are characterized by an elongated body, distinct nuchal hump on the back of the neck, and a small blunt head, usually with `barbels' at the corners of the slightly subterminal mouth." See id. A splittail is distinguishable from other minnows in California's Central Valley because it has an enlarged dorsal lobe of the caudal fin. See id. Splittails are native to Central California and are relatively long-lived, often reaching 5 to 7 years of age. See Pl. Facts ¶ 5, Def. Facts ¶ 5.

USFWS first identified the splittail as a candidate species for possible listing as endangered or threatened in early 1989. (Def. Facts ¶ 6, Pl. Facts ¶ 6) In November 1992, USFWS received a petition asking that the splittail be added to the list of endangered and threatened wildlife and that habitat be designated for the splittail in the Sacramento and San Joaquin rivers and associated estuary. (Def. Facts ¶ 7, Pl. Facts ¶ 7) USFWS published a 90-day finding on July 6, 1993 that the requested actions may be warranted and initiated a review of the splittail. (Def. Facts ¶ 8, Pl. Facts ¶ 8)

On January 6, 1994, USFWS published a proposed rule to list the splittail as threatened. (Def. Facts ¶ 9, Pl. Facts ¶ 9) The first sixty-day comment period on this rule was January 6 to March 7, 1994. (Def. Facts ¶ 15, Pl. Facts ¶ 15) On August 3 and 31, 1994, the State Water Contractors and Central Valley Water Association, respectively, wrote USFWS requesting a 6-month extension alleging scientific disagreement with the listing proposal. (Def. Facts ¶ 16, Pl. Facts ¶ 16) In response, on January 10, 1995, USFWS published in the Federal Register a notice of a six-month extension and reopened a forty-five day public comment period until February 24, 1995. (Def. Facts ¶ 17, Pl. Facts ¶ 17)

In April 1995, Congress imposed a moratorium on the processing of all final listing proposals. (Def. Facts ¶ 18, Pl. Facts ¶ 18) This moratorium was lifted April 26, 1996. (Def. Facts ¶ 18, Pl. Facts ¶ 18) In March 1998, the California Department of Water Resources ("CDWR") and the State Water Contractors requested another reopening of the comment period. (Def. Facts ¶ 19, Pl. Facts ¶ 19) A third comment period was opened for sixty days from May 18, 1998 to July 17, 1998. (Def. Facts ¶ 20, Pl. Facts ¶ 20)

During the third comment period, three California state entities, the California Department of Fish and Game "CDFG," see A.R. 2157-83, CDWR, see A.R. 2185-2207, and the Resources Agency of California, see A.R. 420-24, objected to the listing. CDFG expressly recommended that the splittail not be listed. See A.R. 2157. It found the "geographic distribution of splittail is much broader than previously believed and continues to expand as more information is gathered," id.; and the data suggested 1998 "will be another exceptional production year for splittail," id. at 2158. CDWR found that "[d]espite the low 1996 indices, the adult stocks ... continue to show no indication of a long-term decline similar to that observed for age-O splittail during drought conditions in 1987-1992 and 1994." A.R. 2186. The 1997 adult abundance data suggested that "the strong 1995 year class successfully recruited to the spawning stock." Id. Further, it found that there was good evidence that 1998 was "an exceptionally strong year-class," and that the 1998 abundance would "be among the best levels ever recorded." Id. at 2187. CDWR concluded that "the splittail population has retained its resiliency;" the 1998 data "demonstrate that the population has retained the broad distribution observed in 1995," and in the Sacramento and San Joaquin Rivers, the range may be broader; and that "inundation of floodplain areas results in spawning success." Id. at 2189. As to the Resources Agency of California¹, Secretary for Resources Douglas Wheeler, argued that the evidence that justified "withdrawal of the Service's proposed regulation to list the splittail under the Endangered Species Act." See id. at 420.

On May 29, 1998, the Southwest Center for Biological Diversity, an environmental citizen organization filed a citizen suit in the Southern District of California alleging that USFWS had failed to timely make a final determination regarding the splittail. (Def. Facts ¶ 21, Pl. Facts ¶ 21) The court ordered Interior to: (1) "comply with Section 4's listing requirements by February 1, 1999," Southwest Center for...