Ninth Circuit Heard Oral Argument in the Consolidated Delta Smelt Cases

On September 10, 2012, the United States Court of Appeals for the Ninth Circuit heard approximately an hour of oral argument in the Consolidated Delta Smelt Cases appeals, Ninth Circuit Case Nos. 11-15871, 11-16617, 11-16621, 11-16623, 11-6624, 11-16660, 11-16662, and 11-17143.  The lead appeal is also referred to as San Luis & Delta-Mendota Water Authority, et al. v. Salazar, et al.  An audio recording of the oral argument is available here.

The Ninth Circuit panel, comprised of Ninth Circuit judges Johnnie Rawlinson and Jay Bybee, and Eighth Circuit Judge Morris Arnold (sitting by designation), heard oral argument from Department of Justice attorney Robert Oakley (representing Federal defendants), Natural Resources Defense Council attorney Katherine Poole (representing the Natural Resources Defense Council and The Bay Institute), Best Best & Krieger LLP attorney Gregory Wilkinson (representing the State Water Contractors), Kronick Moskovitz Tiedemann & Girard attorney Daniel O’Hanlon (representing San Luis & Delta-Mendota Water Authority and Westlands Water District), and California Deputy Attorney General Clifford Lee (representing the California Department of Water Resources). 

The appeals are now under submission and the parties are awaiting the Ninth Circuit’s opinion. 

Related Stories:

Oral Argument Scheduled for Ninth Circuit Appeals in the Delta Smelt Consolidated Cases
Ninth Circuit Dismisses "Fall X2" Appeal for Mootness

Ninth Circuit Dismisses "Fall X2" Appeal for Mootness

On August 23, 2012, the United States Court of Appeals for the Ninth Circuit issued an order in San Luis & Delta Mendota Water Authority, et al. v. Salazar, et al., Appeal No. 11-17143, granting Appellees' motion to dismiss the appeal. 

The Fall X2 Action is an action in the Reasonable and Prudent Alternative identified in the 2008 U.S. Fish & Wildlife Service biological opinion regarding the effects of the long-term operation of the Central Valley Project and State Water Project on the delta smelt.  In the August 23, 2012 order, the Ninth Circuit held: "Because the implementation period for the Fall X2 Action has passed, any challenge to the district court's injunction is moot." 

As a result of the order, the scheduled oral argument for the two Delta Smelt Consolidated Cases appeals will no longer include oral argument on the propriety of the district court's August 31, 2011 decision that enjoined the federal government from implementing the Fall X2 Action, which, absent the injunction, would have restricted California's water supply by hundreds of thousands of acre feet.

Related Stories:

• Oral Argument Scheduled for Ninth CircuitAppeals in the Delta Smelt Consolidated Cases
• Federal District Court Enjoins Water Supply Restrictions Under Delta Smelt Biological Opinion

 

Ninth Circuit Court of Appeals Rejects Challenges to 43 Federal Water Contracts

On July 17, 2012 the Ninth Circuit issued an important opinion rejecting challenges to the U.S. Bureau of Reclamation's renewal of 43 water contracts in 2004-2005.  The contracts at issue consisted of two general types - water service contracts in the Delta Mendota Canal Unit of the Central Valley Project and Sacramento River Settlement contracts. 

The case stems back to litigation over a 2005 biological opinion issued by the U.S. Fish and Wildlife Service on the effects of State and Federal water project operations on the threatened delta smelt.  That 2005 BiOp was challenged by environmental groups and ruled invalid by the district court.  In an attempt to ride the wave of that success, the same environmental groups then filed a supplemental complaint challenging the earlier contract renewals by the Bureau as invalid because they had partially incorporated the 2005 BiOp.  The district court rejected these claims because the water service contracts expressly provided and allowed for the Bureau to change CVP operations (including reducing deliveries) in any way required by the ESA, and therefore their execution and existence did not cause any actual harm to the delta smelt.  With respect to the settlement contracts, the district court generally found that the Bureau had no discretion to alter their terms and therefore the ESA consultation provisions did not apply to the renewal of those contracts. 

The Ninth Circuit Court of Appeals affirmed both district court rulings, rejecting challenges to both types of water contracts.  The opinion can be found here.

If you have any questions regarding this decision, please contact, Daniel J. O’Hanlon, Hanspeter Walter, or Rebecca Akroyd.
    

Oral Argument Scheduled for Ninth Circuit Appeals in the Delta Smelt Consolidated Cases

On July 10, 2012, the United States Court of Appeals for the Ninth Circuit issued a notice of oral argument in the Consolidated Delta Smelt Cases appeals, Ninth Circuit Case Nos. 11-15871, 11-16617, 11-16621, 11-16623, 11-6624, 11-16660, 11-16662, and 11-17143.  The lead appeal is also referred to as San Luis & Delta-Mendota Water Authority, et al. v. Salazar, et al.  Hearing on the appeal will occur September 10, 2012, at 9:00 a.m. in the Lloyd D. George United States Courthouse in Las Vegas, Nevada.  The court will reveal the identity of panel members not earlier than the week before the case will be heard. 

The court will hear oral argument on appeals regarding two decisions from the United States District Court for the Eastern District of California: 1) the district court’s December 14, 2010 Memorandum Decision re Cross Motions for Summary Judgment, and the related May 18, 2011 final judgment, which held that the U.S. Fish and Wildlife Service’s (“FWS”) 2008 delta smelt biological opinion (“BiOp”) and Reasonable and Prudent Alternative (“RPA”) were arbitrary, capricious, and unlawful and remanded the BiOp and RPA to FWS; and 2) the district court’s August 31, 2011 decision that enjoined the federal government from implementing the so-called “Fall X2” measure, which, absent the injunction, would have restricted California’s water supply by hundreds of thousands of acre feet.

Briefing completed in the so-called “Merits Appeal” on May 25, 2012, while briefing completed in the so-called “X2 Appeal” on April 5, 2012.  An order granting the motion to consolidate the Merits Appeal and X2 Appeal, which were separately briefed, for oral argument, was filed on May 25, 2012.  

If you have any questions regarding this announcement, please contact Daniel J. O’Hanlon, Rebecca Akroyd, or Hanspeter Walter, or the KMTG attorney with whom you normally consult.

Related Stories:

• Court Denies “Fall X2” Motions and Finds Agency Bad Faith 
• Federal District Court Enjoins Water Supply Restrictions Under Delta Smelt Biological Opinion

United States Supreme Court Declines To Review Commerce Clause Challenge To Delta Smelt Biological Opinion

On October 31, 2011, the United States Supreme Court rejected a petition for certiorari by several San Joaquin Valley farm companies in Stewart & Jasper Orchards v. Salazar, et al., a case partially consolidated with the Delta Smelt Consolidated Cases.

The Ninth Circuit Court of Appeals had previously rejected an argument by Stewart & Jasper Orchards, Arroyo Farms, LLC, and King Pistachio Grove that application of the federal Endangered Species Act (ESA) violated the Commerce Clause. The Ninth Circuit determined that "the protection of threatened or endangered species implicates economic concerns." Accordingly, the lower appellate court rejected the farm companies' argument that Congress lacked the authority to impose environmental restrictions under the ESA because the delta smelt were strictly an intrastate species. Yesterday's Supreme Court's decision leaves the Ninth Circuit's earlier ruling intact.

If you have any questions concerning this matter, please contact Rebecca R. Akroyd or the KMTG attorney with whom you normally consult.

Additional coverage may be found on the Pacific Legal Foundation's website.

Related stories:

• Court Denies "Fall X2" Motions and Finds Agency Bad Faith
• Federal District Court Enjoins Water Supply Restrictions Under Delta Smelt Biological Opinion

Court Denies "Fall X2" Motions and Finds Agency Bad Faith

Judge Oliver Wanger conducted a hearing today on the motions filed by the United States Fish and Wildlife Service and the Natural Resources Defense Council (collectively, "Defendants") to stay his August 31 order.  In that order, Judge Wanger enjoined the federal government from implementing the “Fall X2” measure under the Delta smelt biological opinion.  Absent the injunction, the Fall X2 measure would have restricted California’s water supply by many hundreds of thousands of acre feet.

At today’s hearing, the court denied Defendants' motions to stay the August order.  In announcing its decision, the court incorporated its prior findings of fact and conclusions of law regarding the request for injunctive relief.

Significantly, the court made an express finding of agency bad faith, describing the testimony of witnesses for the federal government, Mr. Frederick V. Feyrer and Dr. Jennifer M. Norris, as "riddled with inconsistency."  The court found both witnesses to be incredible, discounting their testimony that the injunctive relief previously granted would jeopardize the continued existence of the Delta smelt.

The court modified the injunction so that it will become effective October 16, 2011, based on evidence that natural conditions and other operating parameters will keep the location of X2 at approximately 74 kilometers until that date.

For more information regarding this matter, please contact Rebecca Akroyd, Hanspeter Walter, Daniel O’Hanlon, Eric Adair, or the KMTG attorney with whom you normally consult.

Update: Additional analysis of today's hearing may be found at the PLF Liberty Blog and on the ACWA website.

Related stories:

• Federal District Court Enjoins Water Supply Restrictions Under Delta Smelt Biological Opinion
• NRDC Seeks to Stay Injunction of Fall X2 Action Under Delta Smelt Biological Opinion
• Hearing on Motion to Stay Fall X2 Injunction Set for September 16

Related documents:

• Findings of Fact and Conclusions of Law re Plaintiffs' Request for Injunctive Relief Against Implementation of RPA Component 3 (Action 4)
• NRDC Motion for Stay of Fall X2 Injunction Pending Appeal
• Federal Defendants' Motion for Stay Pending Appeal of the Court's Order Enjoining Action 4
• Plaintiffs' Opposition to Defendants-Intervenors' Motion for Stay of Fall X2 Injunction Pending Appeal
• Plaintiffs' Opposition to Federal Defendants' Motion for Stay Pending Appeal of the Court's Order Enjoining Action 4

Hearing on Motion to Stay Fall X2 Injunction Set for September 16

As we recently reported, the Natural Resources Defense Council has moved to stay Judge Oliver Wanger’s August 31 order enjoining the federal government from implementing the “Fall X2” measure under the Delta smelt biological opinion.  The United States Fish and Wildlife Service subsequently filed a similar motion.  Following a brief hearing on September 9, the Court directed the plaintiffs to file an opposition to the motion no later than September 14 and scheduled a full hearing at noon on September 16.  We will report on the outcome of that hearing.

For more information regarding this matter, please contact Eric Adair, Rebecca Akroyd, Hanspeter Walter, Daniel O'Hanlon, or the KMTG attorney with whom you normally consult.

Related stories:

• Federal District Court Enjoins Water Supply Restrictions Under Delta Smelt Biological Opinion
• NRDC Seeks to Stay Injunction of Fall X2 Action Under Delta Smelt Biological Opinion

Related documents:

• Findings of Fact and Conclusions of Law re Plaintiffs' Request for Injunctive Relief Against Implementation of RPA Component 3 (Action 4)
• NRDC Motion for Stay of Fall X2 Injunction Pending Appeal
• Federal Defendants' Motion for Stay Pending Appeal of the Court's Order Enjoining Action 4
• Plaintiffs' Opposition to Defendants-Intervenors' Motion for Stay of Fall X2 Injunction Pending Appeal
• Plaintiffs' Opposition to Federal Defendants' Motion for Stay Pending Appeal of the Court's Order Enjoining Action 4

NRDC Seeks to Stay Injunction of Fall X2 Action Under Delta Smelt Biological Opinion

On September 6, the Natural Resources Defense Council filed a notice of appeal and moved to stay Judge Oliver Wanger’s August 31 order enjoining the federal government from implementing the “Fall X2” measure under the Delta smelt biological opinion.  We previously reported on Judge Wanger’s ruling here.

In papers filed late yesterday, the NRDC appealed the injunction and separately filed a motion to stay its enforcement.  The NRDC’s motion argues that the Court’s August 31 ruling alters the status quo of its final judgment in the case.  The final judgment ruled that the biological opinion was arbitrary and capricious in several important respects and ordered the federal government to prepare a new opinion.  (The judgment has been appealed to the Ninth Circuit.)  The NRDC’s motion also challenges the Court’s findings regarding water supply impacts and argues that the injunction will imperil Delta smelt and its habitat.  The NRDC’s motion may be found here.

The NRDC also filed an application to expedite the hearing on its motion to stay the injunction.  It has requested a hearing at 1:30 p.m. on September 8.  The Court has not ruled on that application or notified the parties when a decision on that application might be rendered.  The NRDC’s application may be found here.

We will provide further updates as warranted.

If you have any questions regarding this matter, please contact Eric Adair, Rebecca Akroyd, Hanspeter Walter, Daniel O’Hanlon, or the KMTG attorney with whom you normally consult.

Related story: 

• Federal District Court Enjoins Water Supply Restrictions Under Delta Smelt Biological Opinion

Related documents: 

• Motion for Stay of Fall X2 Injunction Pending Appeal
• Application for Order Shortening Time to Hear Motion for Stay of All X2 Injunction Pending Appeal

Federal District Court Enjoins Water Supply Restrictions Under Delta Smelt Biological Opinion

On August 31, 2011, the United States District Court for the Eastern District of California enjoined the federal government from implementing the so-called “Fall X2” measure, which, absent the injunction, would have restricted California’s water supply by hundreds of thousands of acre feet.

In his 140-page Findings of Fact and Conclusions of Law, Judge Oliver W. Wanger granted a motion filed by State Water Contractors, Metropolitan Water District of Southern California, Kern County Water Agency, Coalition for a Sustainable Delta, San Luis & Delta-Mendota Water Authority, and Westlands Water District to enjoin implementation of the Fall X2 Action.  The Fall X2 Action is part of the Reasonable and Prudent Alternative set forth in the United States Fish and Wildlife Service's December 15, 2008, biological opinion, which addressed impacts of the coordinated operations of the federal Central Valley Project and the State Water Project on the threatened Delta smelt.

Intended as a measure to improve fall habitat for Delta smelt growth and rearing, the Fall X2 Action would require sufficient Delta outflow to maintain a monthly average location of two parts per thousand salinity (X2) at or more westward than 74 kilometers from the Golden Gate Bridge in 2011, a "wet" water year.  Absent an injunction, "[t]he estimated cost to water users [of implementing Component 3] is 670,000 acre feet ('AF') of water if 2012 is a critically dry or dry year, or 300,000 AF if [2012] is a below normal or above normal year."  (Findings at p. 3.)

The court held that "the record reveals no support for a direct link between X2 and smelt abundance."  (Findings at p. 134.)  The court further explained:

The scientific evidence in support of imposing any Fall X2 action is manifestly equivocal.  There is essentially no biological evidence to support the necessity of the specific 74 km requirement set to be triggered in this 'wet' water year.  The agencies still 'don't get it.'  They continue to believe their 'right to be mistaken' excuses precise and competent scientific analysis for actions they know will wreak havoc on California's water supply.

(Findings at p. 139.)  "Balancing the imperiled status of the species, the equivocal and highly disputed support for the X2 action, and the even weaker and unjustified support for position X2 at 74 km, against the substantial and damaging water supply impact of doing so," the court enjoined the Fall X2 Action or any other attempt by Federal Defendants to set Fall X2 westward of 79km.  The court held that "limiting the X2 position to 80 km or 79 km achieves equity."  (Findings at p. 140.)

This latest ruling in the Consolidated Delta Smelt Cases follows a December 2010 decision by the court, in which it found that restrictions on Delta pumping under the biological opinion were not adequately justified, and a May 2011 final judgment that remanded the biological opinion and required issuance of a new biological opinion by December 1, 2013.

A complete copy of the court's Findings of Fact and Conclusions of Law can be found here.

The biological opinion for Delta smelt may be found here.

If you have any questions regarding this decision, please contact Rebecca Akroyd, Hanspeter Walter, Daniel J. O'Hanlon, or the KMTG attorney with whom you normally consult.