CONTACT US Sacramento Office: Fresno Office: Washington Office: 
FIRM PROFILE Somach Simmons & Dunn provides a unique combination of experience in the fields of water, natural resources, environmental, public land, public agency, toxics and hazardous waste, zoning, planning, and land development law. |
 | |
 |
Judge Wanger Concludes That the National Marine Fisheries Service Likely Violated the ESA by Failing to Rely on the “Best Available Science” in Its Salmon Biological Opinion May 25, 2010 by Brian D. Poulsen bpoulsen@somachlaw.com |
|
On May 18, 2010, in The Consolidated Salmonid Cases, Case No. 1:09-cv-01053-OWW-DL (E.D. Cal., June 15, 2009), Judge Oliver Wanger of the United States District Court, Eastern District of California, concluded that the National Marine Fisheries Service (NMFS) likely violated the Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq., by failing to rely on the “best available science” when drafting its June 4, 2009 biological opinion (BiOp). The BiOp addresses the impact of coordinated operations of the Central Valley Project (CVP) and State Water Project (SWP) (collectively, Projects) on certain salmonid and other species, and its corresponding Reasonable and Prudent Alternative (RPA). The decision follows two recent decisions invalidating and temporarily restraining implementation of the BiOp and RPA for failure to comply with the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. In its most recent ruling, the Court signaled its intent to enjoin implementation of the RPA until the agencies have conducted an adequate NEPA review and revised the RPA in light of the best available science, pending a determination that an injunction will not jeopardize the continued existence of the species and/or adversely modify their critical habitats. Enjoining implementation of the BiOp and RPA will most likely increase Project deliveries. Background On October 22, 2004, NMFS issued a biological opinion on the effects of the coordinated operations of the Projects on winter-run Chinook, spring-run Chinook, and steelhead salmon. The biological opinion found that Project operations would not cause jeopardy or adversely modify critical habitat for the species at issue. Thereafter, a coalition of environmental and fishing organizations challenged the BiOp’s conclusions in Pac. Coast Fed’n of Fishermen’s Ass’ns v. Gutierrez, No. 1:06-cv-00245-OWW-GSA, 2008 U.S. Dist. LEXIS 31462. On April 16, 2008, Judge Wanger declared the 2004 biological opinion unlawful and inadequate for failure to consider all the relevant factors pertaining to recovery of certain species and associated critical habitat impacts. The Court subsequently ordered NMFS to issue a new salmon biological opinion. Pursuant to that mandate, NMFS issued a new BiOp on June 4, 2009. That BiOp found that the coordinated Project operations would likely jeopardize the continued existence and adversely affect the critical habitat of certain salmonid and other species. Accordingly, NMFS also issued an RPA that restricts Project operations during certain times. For example, Action IV.2.1 of the RPA limits the amount of permissible water exports from the Delta based on San Joaquin River inflow from April 1 through May 31. Similarly, Action IV.2.3 limits reverse flows in Old and Middle River (OMR) to levels no more negative than -2,500 to -5,000, from January 1 to June 15, or until the water temperature in the San Joaquin River is greater than 72 degrees, whichever is earlier. Reclamation provisionally accepted the RPA and informed NMFS that it would immediately begin to implement the near-term actions of the RPA. Thereafter, several urban and agricultural water suppliers, including the San Luis & Delta-Mendota Water Authority, Westlands Water District, Stockton East Water District, State Water Contractors, Kern County Water Agency, Coalition for a Sustainable Delta, Oakdale Irrigation District, and Metropolitan Water District of Southern California (collectively, Plaintiffs) filed suit in The Consolidated Salmonid Cases, No. 1:09-cv-1053 OWW DLB. On February 5, 2010, the Court issued a temporary restraining order, prohibiting Reclamation from implementing RPA Action IV.2.3, but less than a week later, denied a similar application by the Plaintiffs to restrict implementation of similar actions designed to protect the endangered Delta smelt. See Judge Wanger Temporarily Enjoins Implementation of Delta Pumping Restrictions Under the Salmon Biological Opinion, then Reverses Course Under Smelt Biological Opinion, February 17, 2010. On March 5, 2010, the Court granted Plaintiffs’ Motion for Summary Judgment, holding that Reclamation failed to analyze the significant impacts on the human environment that would result from implementation of the RPA. See Judge Wanger Rules that the Bureau of Reclamation Violated NEPA in Accepting and Implementing the National Marine Fisheries Service’s Biological Opinion on Salmon, March 16, 2010. The Court’s most recent ruling came on Plaintiffs’ Motion for Preliminary Injunction seeking to prevent the further implementation of RPA Actions IV.2.1 and IV.2.3. Analysis In deciding a motion for preliminary injunction, the Court must determine (1) whether Plaintiffs are likely to prevail on the merits of their claims, (2) whether Plaintiffs are likely to suffer irreparable harm absent injunctive relief, (3) whether the balance of harms tips in Plaintiffs’ favor, and (4) whether an injunction would be in the public interest. Winters v. Natural Resources Defense Council, 129 S. Ct. 365, 374 (2008). The Court analyzed each of these four factors and concluded in Plaintiffs’ favor. First, the Court ruled that Plaintiffs were likely to succeed on the merits of their NEPA and ESA claims. Having already ruled that NMFS and Reclamation failed to comply with NEPA in implementing the BiOp and RPA (see Memorandum Decision Re Cross-Motions for Summary Judgment on NEPA Issues, Case No. 1:09-cv-01053-OWW-DL, Doc. 266, March 5, 2010), the Court focused on the claims that NMFS violated the ESA by failing to rely on the best available science in drafting the RPA. After analyzing a significant amount of both documentary and testimonial evidence, the Court concluded that NMFS likely failed to rely on the best available science in drafting RPA actions IV.2.1 and IV.2.3. The Court held that: NMFS has failed to adequately justify by generally recognized scientific principles the precise flow prescriptions imposed by RPA Actions IV.2.1 and IV.2.3. The exact restrictions imposed, which are inflicting material harm to humans and the human environment, are not supported by the record. Rather, they are product of guesstimations and attempts to try to achieve “equity,” rendering it impossible to determine whether the RPA Actions are adequately protective, too protective, or not protective enough. Judicial deference is not owed to such arbitrary, capricious, and scientifically unreasonable agency action. Next, the Court held that Plaintiffs are experiencing irreparable harm as a result of the RPA’s significant reductions in water exports, noting the evidence of destruction of permanent crops; fallowed lands; increased groundwater consumption; land subsidence; reduction of air quality; destruction of family and entity farming businesses; and social disruption and dislocation, such as increased property crimes and intra-family crimes of violence, adverse effects on schools, and increased unemployment leading to hunger and homelessness. In balancing the harms, the Court noted, “This case is at the intersection of harm to threatened species and humans and their environment. Congress has not ... elevate[d] species protection over the health and safety of humans.” Finally, the Court held that “[i]t is in the public interest that relief be granted to Plaintiffs.” Having established the four factors necessary for a preliminary injunction, the Court held that “some injunctive relief” is appropriate, so long as it will not further jeopardize the species or their habitat. The Court noted: The species and their critical habitats are entitled to protection under the ESA. The species have been and will be protected. That is the law. Nonetheless, NMFS and Reclamation, and the consulting and action agencies, must take the hard look under NEPA at the draconian consequences visited upon Plaintiffs, the water supply of California, and the agricultural industry, and the residents and communities devastated by the water supply limitations imposed by the RPA Actions. Federal defendants have failed to comprehensively and competently evaluate whether RPA alternatives can be prescribed that will be mutually protective of all the statutory purposes of the Projects. Because injunctive relief may not issue if it will further jeopardize the listed species of their critical habitat, the Court first scheduled a hearing to address the most up-to-date evidence of the status of the species to assure that altered operations would not “deepen jeopardy” to the species. Conclusion and Implications The Court will very likely decide whether or not to issue the injunction at its scheduled hearing on May 25, 2010. If the Court grants the injunction, Reclamation will likely increase Delta exports. Indeed, the Court noted in its decision that “[i]f Action IV.2.1, Action IV.2.3, or the 2008 Delta Smelt BiOp RPA are enjoined, Reclamation expects to increase CVP water supply allocations in May and June.” If the Court denies the injunction, in order to avoid further jeopardy of the species or adverse modification of critical habitat, Plaintiffs will likely seek to invalidate the BiOp and RPA on the ESA claims in a motion for summary judgment, much the same way they executed the NEPA claims. Given this most recent ruling, it seems very likely that the Court will grant such a motion, invalidating and requiring revisions to RPA Actions IV.2.1 and IV.2.3. The Court’s decision that NMFS likely violated the ESA by failing to rely on the best available science is also an indication of how the Court is likely to rule on the same issue in The Consolidated Delta Smelt Cases, No. 1:09-CV-407 OWW DLB (E.D. Cal., March 3, 2009), companion case to The Consolidated Salmonid Cases. In that case, Plaintiffs challenge the United State Fish & Wildlife Service’s biological opinion on the impacts of the coordinated Projects on Delta smelt and its corresponding reasonable and prudent alternative, which also imposes pumping restrictions. For more information, please contact Brian Poulsen at bpoulsen@somachlaw.com. Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only. This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice. In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn. |
