Westlands Water Dist. v. U.S. Dept. of Interior
| Decision Date | 13 July 2004 |
| Docket Number | No. 03-15291.,No. 03-15737.,No. 03-15194.,No. 03-15289.,03-15194.,03-15289.,03-15291.,03-15737. |
| Citation | 376 F.3d 853 |
| Parties | WESTLANDS WATER DISTRICT; San Luis & Delta-Mendota Water Authority, Plaintiffs-Appellees, v. UNITED STATES DEPARTMENT OF THE INTERIOR; Gale A. Norton, Secretary U.S. Department of the Interior; United States Bureau of Reclamation; Eluid Martinez, Commissioner of the U.S. Bureau of Reclamation; Lester A. Snow, Regional Director of the U.S. Department of the Interior, Bureau of Reclamation, Mid-Pacific Region; United States Department of Fish and Wildlife; Jamie Rappaport Clark, Director of the U.S. Fish and Wildlife Service; Michael Spear, Operations Manager of the California/Nevada Operations Office, U.S. Fish and Wildlife Service, Pacific Region; United States Department of Commerce; Donald Evans, Secretary, United States Department of Commerce; National Marine Fisheries Service; Penelope Dalton, Assistant Administrator for Fisheries at Commerce; Rebecca Lent, Dr., Regional Administrator of the U.S. Marine Fisheries Service, Defendants, Yurok Tribe, Defendant-Intervenor, and Hoopa Valley Tribe, Defendant-Intervenor-Appellant, v. Sacramento Municipal Utility District; Northern California Power Association, Plaintiffs-Intervenors-Appellees. Westlands Water District; San Luis & Delta-Mendota Water Authority, Plaintiffs-Appellees, v. United States Department of the Interior; Gale A. Norton, Secretary U.S. Department of the Interior; United States Bureau of Reclamation; Eluid Martinez, Commissioner of the U.S. Bureau of Reclamation; Lester A. Snow, Regional Director of the U.S. Department of the Interior, Bureau of Reclamation, Mid-Pacific Region; United States Department of Fish and Wildlife; Jamie Rappaport Clark, Director of the U.S. Fish and Wildlife Service; Michael Spear, Operations Manager of the California/Nevada Operations Office, U.S. Fish and Wildlife Service, Pacific Region; United States Department of Commerce; Donald Evans, Secretary, United States Department of Commerce; National Marine Fisheries Service; Penelope Dalton, Assistant Administrator for Fisheries at Commerce; Rebecca Lent, Dr., Regional Administrator of the U.S. Marine Fisheries Service, Defendants-Appellants, and Yurok Tribe; Hoopa Valley Tribe, Defendants-Intervenors, v. Sacramento Municipal Utility District; Northern California Power Association, Plaintiffs-Intervenors-Appellees. Westlands Water District; San Luis & Delta-Mendota Water Authority, Plaintiffs-Appellants, v. United States Department of the Interior; Gale A. Norton, Secretary U.S. Department of the Interior; United States Bureau of Reclamation; Eluid Martinez, Commissioner of the U.S. Bureau of Reclamation; Lester A. Snow, Regional Director of the U.S. Department of the Interior, Bureau of Reclamation, Mid-Pacific Region; United States Department of Fish and Wildlife; Jamie Rappaport Clark, Director of the U.S. Fish and Wildlife Service; Michael Spear, Operations Manager of the California/Nevada Operations Office, U.S. Fish and Wildlife Service, Pacific Region; United States Department of Commerce; Donald Evans, Secretary, United States Department of Commerce; National Marine Fisheries Service; Penelope Dalton, Assistant Administrator for Fisheries at Commerce; Rebecca Lent, Dr., Regional Administrator of the U.S. Marine Fisheries Service, Defendants-Appellees, Yurok Tribe; Hoopa Valley Tribe, Defendants-Intervenors-Appellees, v. Sacramento Municipal Utility District; Northern California Power Association, Plaintiffs-Intervenors. Westlands Water District; San Luis & Delta-Mendota Water Authority, Plaintiffs-Appellees, v. United States Department of the Interior; Gale A. Norton, Secretary U.S. Department of the Interior; United States Bureau of Reclamation; Eluid Martinez, Commissioner of the U.S. Bureau of Reclamation; Lester A. Snow, Regional Director of the U.S. Department of the Interior, Bureau of Reclamation, Mid-Pacific Region; United States Department of Fish and Wildlife; Jamie Rappaport Clark, Director of the U.S. Fish and Wildlife Service; Michael Spear, Operations Manager of the California/Nevada Operations Office, U.S. Fish and Wildlife Service, Pacific Region; United States Department of Commerce; Donald Evans, Secretary, United States Department of Commerce; National Marine Fisheries Service; Penelope Dalton, Assistant Administrator for Fisheries at Commerce; Rebecca Lent, Dr., Regional Administrator of the U.S. Marine Fisheries Service, Defendants-Appellees, Yurok Tribe, Defendant-Intervenor-Appellant, and Hoopa Valley Tribe, Defendant-Intervenor, v. Sacramento Municipal Utility District; Northern California Power Association, Plaintiffs-Intervenors-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Katherine Barton, Department of Justice, for the federal defendants-appellants/appellees.
Thomas Schlosser, Morisset, Schlosser, Jozwiak & McGaw, Seattle, WA, for defendants-intervenors-appellants/appellees Hoopa Valley Tribe.
Scott W. Williams, Alexander, Berkey, Williams & Weathers, Berkeley, CA, for defendant-intervenor-appellant/cross-appellee Yurok Tribe.
Eric N. Robinson, Daniel J. O'Hanlon, Kronick, Moskovitz, Tiedemann & Girard, Sacramento, for plaintiffs-appellees/cross-appellants water agencies.
Kelly L. Drumm, Brian S. Haughton, Barg Coffin Lewis & Trapp, San Francisco, CA, for plaintiff-intervenor/appellee Northern California Power Agency.
Sally Magnani Knox, Deputy Attorney General, Oakland, CA, for amicus curiae People of the State of California.
Appeal from the United States District Court for the Eastern District of California; Oliver W. Wanger, District Judge, Presiding. D.C. No. CV-00-07124-OWW.
Before: GOODWIN, TASHIMA, and CLIFTON, Circuit Judges.
For forty years, most of the Trinity River's water has been diverted to the Sacramento River basin. Congress mandated that some of that water be returned to the Trinity River in order to revive its chinook salmon, coho salmon, and steelhead trout populations, which have been decimated by the decades of reduced water flows. California municipal water agencies and power districts ("Plaintiffs") challenged the plan to redirect Trinity River water, arguing that the procedural requirements of the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (1970) ("NEPA"), and the Endangered Species Act, 16 U.S.C. § 1531 et seq. (1973) ("ESA"), were not met.
Ruling on cross-motions for summary judgment, the district court enjoined parts of the restoration program devised by federal agencies and the Hoopa Valley Tribe ("Hoopa Valley"), mandated that non-flow restoration measures be implemented, and ordered the federal agencies to supplement their Environmental Impact Statement ("EIS") to cover issues neglected or inadequately addressed in previous studies.
We affirm in part and reverse in part. We reverse the conclusion that the scope of the EIS and the range of alternatives considered therein was unreasonable. We reverse the district court's injunctive orders to supplement the EIS to address the issues raised on appeal. We affirm the district court's ruling that two of the mitigation measures insisted upon by the Fish and Wildlife Service ("FWS") and the National Marine Fisheries Service ("NMFS") in their biological opinions exceeded the statutory authority for such opinions. Lastly, we reject the three claims raised by Plaintiffs on cross-appeal and affirm the remainder of the judgment.
The Trinity River originates in northwest California. It runs southward to Trinity Dam, forming Trinity Reservoir. South of the dam, it flows 112 miles westward and its waters join those of the Klamath River at a confluence 44 miles upstream of the Pacific Ocean. The Trinity River was long known for its abundant fishery1 resources, which include anadromous2 species of chinook salmon, coho salmon, and steelhead trout. Plentiful runs of these fish sustained Hoopa Valley and the Yurok Tribe ("Yurok"; collectively "the Tribes") from before non-Indian settlement, as well as numerous canneries in the early twentieth century.
The Trinity River Division ("TRD") is a part of the Central Valley Project ("CVP"), an extensive system of dams, tunnels, canals, and reservoirs that stores and regulates water for California's Central Valley. The CVP supplies two hundred water districts, providing water for about thirty million people, irrigating California's most productive agricultural region and generating electricity at nine powerplants. The TRD impounds the Trinity River initially at Trinity Dam, behind which water accumulates to form the approximately 2,448,000 acre-foot ("AF")3 Trinity Reservoir. A second dam at Lewiston regulates water releases to the original Trinity River. Water can also be diverted via the Clear Creek Tunnel to the Sacramento River Basin. The hydroelectric generators at Trinity Dam, Clear Creek Dam, and Clear Creek Tunnel supply power to CVP contractors. Just south of Lewiston Dam, the Trinity River Fish Hatchery operates to mitigate the fishery damage caused by the TRD.
In 1955, Congress authorized the construction of the TRD as part of the CVP. Pub.L. No. 69-386 (1955). Studies of the Trinity River led Congress to the conclusion that "surplus" water could be diverted to the Central Valley without harming the fishery of the Trinity and Klamath Rivers. Record of Decision ("ROD") at 4 (citing H.R.Rep. No. 602, 84th Cong., 1st Sess. 4-5 (1955); S.Rep. No. 1154, 84 Cong., 1st Sess. 5 (1955)). Section 2 of the 1955 law ordered the Secretary of the Interior ("Secretary") to take necessary measures to protect the fishery and wildlife resources of the Trinity River Basin. Westlands Water Dist. v. U.S. Dep't of the Interior, 275 F.Supp.2d 1157, 1169 (E.D.Cal.2002) [hereinafter Order].4
Construction of the TRD was...
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