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