Court Rejects Lawsuit That Would Have Closed 2011 Sacramento Fall-Run Chinook Salmon Season

On September 30, 2011, the United States District Court for the Eastern District of California rejected a lawsuit filed by the San Joaquin River Group Authority ("SJRGA").  The lawsuit challenged the Pacific Fisheries Management Council's adoption of fishing management measures for Sacramento River fall-run Chinook salmon for the 2011 fishing season and the National Marine Fisheries Service's approval of those  management measures.

In a memorandum decision authored by now-retired Judge Oliver Wanger, the court first dismissed the Pacific Fisheries Management Council as a defendant on the ground that it was not an "agency" within the meaning of the Administrative Procedures Act:

The court next concluded that SJRGA lacked standing to bring such a lawsuit against the National Marine Fisheries Service, describing the failure by SJRGA to prove that the alleged harm from the 2011 management measures was "sufficiently imminent" or that the alleged risk of additional burdens on SJRGA's water rights was causally linked to the 2011 management measures.  The court found that SJRGA failed to demonstrate a likelihood that the challenged action would cause any harm to its members' water rights.

After finding that SJRGA lacked standing, the court went on to consider the merits of the case.  The court rejected SJRGA's arguments that the federal defendants had violated the Magnuson-Stevens Act, National Environmental Policy Act, and Administrative Procedures Act.

The district court's memorandum decision and order in the case, San Joaquin River Group Authority v. National Marine Fisheries Service, et al., Case No. 1:11-CV-00725, may be found here and here, respectively. 

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

Court Finds 2009 Salmonid Biological Opinion Arbitrary and Capricious and Remands to National Marine Fisheries Services

On September 20, 2011, the United States District Court for the Eastern District of California issued a memorandum decision that finds the 2009 Salmonid Biological Opinion ("BiOp") and Reasonable and Prudent Alternative ("RPA") arbitrary, capricious, and unlawful.

In a 279-page decision by Honorable Judge Oliver Wanger, the court found several scientific and legal errors in the BiOp and RPA that warranted remand.  On multiple occasions, the court found "clear error" or a failure to use the "best available science."  The court concluded:

Some of NMFS's analyses rely upon equivocal or bad science to impose RPA Actions without clearly explaining or otherwise demonstrating why specific measures imposed are essential to avoid jeopardy and/or adverse modification.  Given the potential serious impacts of these measures, the agency must do more to comply with the law.

The district court's opinion in the case, San Luis & Delta-Mendota Water Authority et al. v. Locke et al., Case No. 1:09-CV-1053, may be found here.  A KMTG Legal Alert with a detailed analysis of the court's ruling will be posted in the near future.

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

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.

KMTG Legal Alert: Sacramento Valley Farmers Have No Prior Right To Central Valley Project Water Under Area Of Origin Laws

Water users in the Sacramento Valley have no preferential right to delivery of Central Valley Project (“CVP”) water under the state’s so-called “area of origin” laws, according to the U.S. District Court in Fresno. The “area of origin” laws allow water users within an area where water originates to apply for new diversions, and to obtain priority for such diversions ahead of already existing diversions for export uses by the CVP and the State Water Project. However, this protection does not grant CVP contractors in the area of origin a right to a preferential allocation of water diverted and stored by the CVP. Instead, the Court ruled, the only preference granted by the area of origin laws applies when users in the area of origin seek a separate water right permit from the State Water Resources Control Board (“SWRCB”).

The August 2 summary judgment ruling rejects the claims of CVP contractors in the Sacramento Valley seeking higher deliveries of CVP water as against other CVP contractors in the San Joaquin Valley and San Francisco Bay Area. The Tehama Colusa Canal Authority (“TCCA”) initiated the litigation during the recent drought, during which the U.S. Bureau of Reclamation (“Bureau”) had reduced CVP water deliveries to much of the Sacramento and San Joaquin valleys. TCCA operates facilities delivering CVP water to 16 local water districts with CVP water service contracts, all of which serve primarily agricultural and some municipal users in the Sacramento Valley. TCCA claimed that reduced CVP water allocations to its members in times of water shortage, while still delivering CVP water to users in export areas, violated the area of origin protections. TCCA sought to establish an area of origin priority to CVP contract deliveries pursuant to California Water Code section 11460 et seq. By seeking a special priority to CVP contract water deliveries, TCCA’s suit threatened further reductions in CVP water deliveries to San Joaquin Valley and Bay Area users, particularly during droughts. Westlands Water District and the San Luis & Delta-Mendota Water Authority intervened in the litigation on behalf of the federal defendants.

The Court’s decision affirms the Bureau’s long-standing application of the area of origin laws. The Bureau has long recognized that these laws protect a priority for new diversions by users within the area of origin over diversions by the CVP, but the Bureau has further consistently maintained that these laws create no priority among CVP contractors to allocation of CVP water supplies. The ruling confirms the Bureau’s position that Sacramento Valley water service contractors have no priority to CVP supplies over CVP contractors located south of the Delta.

The Court’s 87-page ruling rejects all of TCCA’s claims and arguments and provides the most extensive analysis to date of the application of California’s area of origin laws to a federal water project. The Court’s ruling includes three major conclusions: (1) that the relevant federal and state statutes grant no priority to use of CVP water to TCCA’s members; (2) that TCCA’s claims for preference are contrary to the terms of the CVP water service contracts signed in 2005; and (3) that state court judgments pursuant to validation statutes and the doctrine of equitable estoppel barred the claims. Thus, the Court rejected TCCA’s claims on multiple grounds.

For a detailed discussion of the facts of this case, and the rationale behind the court's ruling, please see the full KMTG Legal Alert here.  The court's opinion may be found here.

If you have any questions concerning this topic, please contact Daniel J. O'Hanlon, Hanspeter Walter, or Rebecca R. Akroyd from our office, or the KMTG attorney with whom you normally consult.

Related story: District Court Rejects Claims to Area of Origin Priority by Tehama-Colusa Canal Authority

District Court Rejects Claims to Area of Origin Priority by Tehama-Colusa Canal Authority

On July 29, 2011, the United States District Court for the Eastern District of California issued a memorandum decision rejecting assertions by the Tehama-Colusa Canal Authority that California area of origin law entitled its member districts to priority deliveries of Central Valley Project water and that the Bureau of Reclamation acted in violation of law by delivering less than 100% of contract amounts during contractual "Conditions of Shortage." 

In an almost 90-page decision by Honorable Judge Oliver Wanger, the court denied the Tehama-Colusa Canal Authority's motion for summary judgment and granted Federal Defendants' and Defendant-Intervenors San Luis & Delta-Mendota Water Authority and Westlands Water District's cross-motions for summary judgment.  SLDMWA and Westlands are represented by KMTG in this case.

The district court's opinion in the case, Tehama-Colusa Canal Authority v. U.S. Dept. of the Interior, et al., Case No. 1:10-cv-0712 OWW DLB, may be found here.

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