The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
JOINT SCHEDULING CONFERENCE CONSOLIDATING CASES ORDER AND ORDER
File Administrative Record
Motions to Augment/ Record: 12/14/09
Hearing: 2/22/10 10:00 Ctrm. 3
Other Issues Resolvable by
Early Dispositive Motion: 10/10/09
Dispositive Motions re Claims: 11/2/09
Hearing: 1/11/10 10:00 Ctrm. 3
Consolidated Responses in Favor of Court-Appointed
Oppositions Thereto: 2/1/10
Hearing: 2/8/10 11:00 Ctrm. 3
Conference: 3/1/10 11:00 Ctrm. 3
I. DATE OF SCHEDULING CONFERENCE. September 10, 2009
1. Six separate cases have been filed challenging actions by the National Marine Fisheries Service ("NMFS") and other Federal Defendants in preparing and adopting the June 4, 2009 Biological Opinion ("2009 BiOp") regarding the effect of the long-term operation of the California State Water Project ("SWP") and the federal Central Valley Project ("CVP") on the Sacramento River winter-run Chinook salmon, the Central Valley spring-run Chinook salmon, the Central Valley steelhead, the Central California Coast steelhead, the Southern Distinct Population of North American green sturgeon, and the Southern Resident killer whales; and on the designated or proposed critical habitat for the referenced salmon, steelhead and green sturgeon. A scheduling conference was held in five of these six cases on September 10, 2009: San Luis & Delta-Mendota Water Authority, et al. v. Locke, et al., Case No. 1:09-cv-1053 (E.D. Cal., filed June 15, 2009) ("San Luis Case"); Stockton East Water District v. NOAA, et al., Case No. 1:09-cv-1090 (filed June 19, 2009) ("Stockton East Case"); State Water Contractors v. Locke, et al., Case No. 1:09-cv-1378 (filed August 6, 2009) ("State Contractors Case"), Kern County Water Agency and Coalition for a Sustainable Delta, et al. v. U.S. Dept. of Commerce, et al., Case No. 1:09-cv-1520 (filed August 26, 2009) ("Coalition Case"); and Oakdale Irrigation District and South San Joaquin Irrigation District v. U.S. Dept. of Commerce, et al., Case No. 1:09-cv-1580 (filed August 31, 2009) ("OID/SSJID Case"). A sixth case, Metropolitan Water District v. National Marine Fisheries Service, et al., Case No. 1:09-cv-1625, ("Met Case"), was filed September 14, 2009.
2. The Court conducted a hearing on August 31, 2009 on the Federal Defendants' Motion for Consolidation of the first five above-captioned cases and responses thereto and determined that some coordination or consolidation of the common claims in the Salmon Cases is appropriate but deferred decision about the extent and terms of the consolidation until this Scheduling Conference. The parties also agree that consolidation should include the newly-filed Met Case.
3. The Parties agree that consolidation does not require merger of the claims, that consolidation does not make the parties to one case parties to another case, and that the cases retain their distinctiveness and, where appropriate, the issues and briefing shall remain separate. The parties further agree to coordinate their briefings and other case proceedings to the extent possible, including as follows:
* redundant briefing of issues associated with the Plaintiffs will make good faith efforts to minimize sufficiency of the record, including by filing joint Plaintiffs' interest are not identical. briefs to the extent practicable, recognizing that the
* discovery, and if Plaintiffs plan to propound discovery Plaintiffs will coordinate before propounding consolidated discovery. with respect to the same claim, will propound
* Except as otherwise provided herein, Plaintiffs will coordinate before filing motions for summary the cases, including coordinating the filing and adjudication respecting claims that are common among calendaring so that these motions will be argued on the for each Plaintiff to present argument on the motions. motions is extended and (2) sufficient time is provided same day provided (1) the calendar for briefing the In conjunction with these motions, Plaintiffs will (1) file a single, consolidated statement of undisputed upon and incorporate, whenever feasible, the written facts, (2) exchange draft motion papers, and (3) rely arguments made by other Plaintiffs so as to minimize duplicative briefing.
* motions. If Plaintiffs plan to file motions seeking Plaintiffs will coordinate before filing any other action by the Court on the same issue, Plaintiffs will motions will be argued on the same day. coordinate filing and calendaring so that the apposite
* Except as otherwise provided herein, Plaintiffs will schedule court appearances to coincide.
All the procedures above will greatly streamline the pending litigation regarding the 2009 Salmon BiOp, and any additional actions, and effect a savings of judicial resources without prejudicing the parties' rights to litigate their respective causes of action independently and vigorously in their own best interests.
4. The above-captioned cases are consolidated for all purposes, including trial. The lowest-numbered case 1:09-cv-1053 shall be the lead case number. For ease of administration, all subsequent filings shall be docketed under the lead case.
5. This consolidation shall be without prejudice to the right of any party to assert claims that are unique or that require separate treatment.
III. IDENTIFICATION OF THE CASES
1. The parties agree that for the convenience of reference, the title "CONSOLIDATED SALMON CASES" shall be used to refer to the six consolidated actions that are proceeding in this litigation.
IV. BACKGROUND STATEMENT OF THE CASE AND SUMMARY OF LEGAL CONTENTIONS AND RELIEF SOUGHT BY ALL PARTIES.
A. Summary of Disputed Legal Issues
1. The plaintiffs in the Salmon Cases request declaratory and injunctive relief regarding the 2009 BiOp. The Federal Defendants and Defendant-Intervenors deny Plaintiffs' claims and that the Plaintiffs are entitled to any relief.
2. The following is a summary of the legal issues alleged and the related case information, identified as (1) common claims challenging the 2009 BiOp; and (2) separate claims. The Parties agree that judicial review of all claims challenging the 2009 BiOp may be resolved by cross-motions for summary judgment. The NEPA claims may be appropriate for early disposition, and certain Plaintiffs may seek to file such an early dispositive motion on those claims. Further, Plaintiffs in the Stockton East Case and OID/SSJID Case propose a staggered briefing schedule, as set forth below, to distinguish the scope of their claims from those of the other Plaintiffs.
3. Federal Defendants believe that the merits of the NEPA claims should be addressed with all other claims, and only after the administrative record has been compiled, and the Court has resolved any objections to the administrative record. With respect to the proposed staggered briefing schedule for the Stockton East and OID/SSJID cases, Federal Defendants oppose such a schedule, as noted below.
4. Defendant-Intervenors believe that it would be most efficient for all merits claims to be briefed together and that the merits briefing should not be staggered. With respect to the NEPA claim, Defendant-Intervenors suggest that briefing on that claim be postponed until this Court decides the nearly identical NEPA claims that have been raised in the Delta Smelt Cases and which are scheduled for hearing on September 28, 2009. The Court's disposition of the NEPA claim in those cases is likely to inform the NEPA claims in these cases. Thus, for the efficiency of the Court and the Parties, briefing those claims in these cases should be deferred pending a NEPA ruling in the Delta Smelt cases.
B. Common Claims Subject to APA Review that are Amenable to Resolution by Dispositive Motion.*fn1
* preparation and issuance of the 2009 BiOp by NMFS failed to comply with NEPA prior to the failing to undertake any NEPA review, through an EA, or a claim of exemption. an EIS, a finding of no significant impact,
2. ESA/APA/Effects of the Action: San Luis Case:
* The 2009 BiOp's analysis of the effects of thereby exaggerates changes and incremental describe the environmental baseline and CVP operations fails to properly determine or impact that would result from proposed CVP operations.
* The 2009 BiOp's effects analysis fails to distinguish between discretionary and non-discretionary CVP operations, and properly subject to consultation. therefore overstates the effects that were
* properly identify, analyze or determine the In the 2009 BiOp, defendants failed to baseline by discretionary CVP operations. incremental effects that will be added to the
* stressors on the subject species and subject attributed to the CVP the effects of other In the 2009 BiOp, defendants erroneously critical habitat.
* In the 2009 BiOp, defendants failed to operations would jeopardize each of the lawfully determine whether proposed CVP modify each of the subject critical habitat. subject species or would destroy or adversely
* Defendants failed to properly analyze cumulative effects.
* that would require CVP operations to The 2009 BiOp erroneously applies a standard accomplish recovery of the subject species.
* In adopting the 2009 BiOp, defendants baseline. incorrectly defined the environmental
* Title 50 of the Code of Federal Regulations The 2009 BiOp violates Section 7 of the ESA, utilize the required methodology when and the Consultation Handbook for failure to concluding that the CP and SWP will analyzing the effects of the action and subject species or destroy or adversely jeopardize the continued existence of the modify subject critical habitat
* additional, discrete effects of the Project The 2009 BiOp fails to properly identify the lacks any basis upon which to evaluate the beyond the environmental baseline and thus of the subject species or the destruction or Project's impact on the continued existence modification of the subject critical habitat: < proposed="" agency="" action="" and="" fails="" to="" the="" 2009="" biop="" improperly="" describes="" the="" non-discretionary="" components="" of="" the="" cvp="" distinguish="" between="" discretionary="" and="" and="" the="" swp.="">< baseline="" that="" fails="" to="" evaluate="" the="" the="" 2009="" biop="" employs="" an="" improper="" in="" the="" action="" area="" and="" consequently="" past,="" present,="" and="" anticipated="" impacts="" present="" impacts="" to="" the="" species="" that="" attributes="" to="" the="" projects="" past="" and="" environmental="" baseline.="" should="" have="" been="" included="" in="">
< the="" 2009="" biop="" fails="" to="" quantify="" or="" baseline="" effects="" on="" the="" subject="" species="" otherwise="" describe="" in="" detail="" the="" baselines="" effects="" to="" the="" project.="" and,="" as="" a="" result,="" improperly="">
* The 2009 BiOp fails to undertake analysis or of the action "appreciably" reduce the make findings regarding whether the effects a baseline that is dramatically different likelihood of survival and recovery and uses recommendations of Defendants' own experts than that in the BA and contrary to the without adequate explanation.
* conclusion reached by the BiOp is without Because of the above failures, the "jeopardy" abuse of discretion. support and is arbitrary, capricious and an
* in the 2009 BiOp and the RPA.
Defendants failed to include the Friant Unit
* Defendants failed to properly analyze, baseline in the 2009 BiOp. determine or describe the environmental
* Defendants failed to properly analyze cumulative impacts of the 2009 BiOp.
* of New Melones such that NMFS has grossly NMFS failed to properly model the operations RPA on the Stanislaus River and the Delta. underestimated the impacts of the 2009 BiOp
* environmental baseline and effects of the The 2009 BiOp fails to adequately ...