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San Luis & Delta-Mendota Water Authority v. Locke

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 23, 2009

SAN LUIS & DELTA-MENDOTA WATER AUTHORITY; WESTLANDS WATER DISTRICT, PLAINTIFFS,
v.
GARY F. LOCKE, AS SECRETARY OF THE UNITED STATES DEPARTMENT OF COMMERCE; ET AL., DEFENDANTS.
STOCKTON EAST WATER DISTRICT, ET AL., PLAINTIFFS,
v.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, ET AL., DEFENDANTS.
STATE WATER CONTRACTORS, PLAINTIFF,
v.
GARY F. LOCKE, SECRETARY, ETC., NEPA ET AL., DEFENDANTS.
KERN COUNTY WATER AGENCY, ET AL., PLAINTIFFS,
v.
UNITED STATES DEPARTMENT OF COMMERCE, ET AL., DEFENDANTS.
OAKDALE IRRIGATION DISTRICT, ET PLAINTIFFS,
v.
UNITED STATES DEPARTMENT OF COMMERCE, ET AL., DEFENDANTS.
METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA, PLAINTIFF,
v.
NATIONAL MARINE FISHERIES SERVICE, ET AL., DEFENDANTS.

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

re 2009 BiOp: 10/19/09

File CD-Rom re: 11/19/09

Administrative Record:

Motions to Augment/ Record: 12/14/09

Challenge Administrative

Opposition: 1/15/10

Replies: 1/29/10

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

Opposition: 12/1/09

Replies: 12/15/09

Hearing: 1/11/10 10:00 Ctrm. 3

Consolidated Responses in Favor of Court-Appointed

Expert: 1/22/10

Oppositions Thereto: 2/1/10

Hearing: 2/8/10 11:00 Ctrm. 3

Conference: 3/1/10 11:00 Ctrm. 3

Further Scheduling al.,

I. DATE OF SCHEDULING CONFERENCE. September 10, 2009

II. CONSOLIDATION

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

1. EPA/APA

All Six Salmon Cases

* 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.

Stockton East Case

* In adopting the 2009 BiOp, defendants baseline. incorrectly defined the environmental

State Contractors Case

* 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

OID/SSJID Case

* 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

The Coalition Case:

* environmental baseline and effects of the The 2009 BiOp fails to adequately analyze the action. < quantification="" of="" the="" impacts="" of="" other="" failure="" to="" provide="" any="" analysis="" or="" differentiate="" the="" effects="" of="" the="" stressors="" on="" listed="" species="" or="" to="" action.="" stressors="" from="" the="" effects="" of="">

< failure="" to="" differentiate="" between="" project="" operations.="" discretionary="" and="" non-discretionary="" listed="" species="" beyond="" the="" environmental="" separate="" effects="" that="" project="" has="" on="" failure="" to="" identify="" the="">

baseline.

The Met Case

* The 2009 BiOp fails to adequately analyze the environmental baseline and effects of the action. < failure="" to="" quantify="" baseline.="">< failure="" to="" differentiate="" between="" discretionary="" and="" non-discretionary="" project="">

< use="" of="" a="" different="" baseline="" to="" evaluate="" the="" effects="" from="" different="" project="">

< failure="" to="" adequately="" consider="" marine="" phase="" of="" salmonid="" life="">

< setting="" of="" jeopardy="" standard="" using="" a="" federal="" columbia="" river="" power="" system.="" standard="" set="" forth="" in="" 2008="" biop="" for="" the="" recovery="" goal,="" rather="" than="">

< use="" of="" a="" particle="" tracking="" method,="" rather="" than="" acoustic="" tracking="" to="" evaluate="" salmonid="">

< overestimation="" of="" entrainment="" effects="" and="" jones="" and="" banks="" pumping="">

< failure="" to="" adequately="" use="" data="" from="" wild="" salmon="">

3. ESA/APA/Failure to Use Best Available Science: San Luis Case:

* Defendants failed to comply with the NMFS Information Standards Policy, DOC Information Quality Guidelines, NMFS Information Quality guidelines, and related OMB Peer Review Bulletin requirements.

* Defendants displayed a pervasive bias against results indicate that major adverse effects exclude and dismiss credible analyses while the CVP and SWP, which caused defendants to on the population dynamics of each of the subject species are caused by factors other those highlighted in the 2009 BiOp. involve relationships and factors other than than the operations of the CVP and SWP and without explanation. relied upon and disregarded relevant data Defendants arbitrarily selected the data they

* Defendants based their analyses on data that was incorrect, incomplete, or otherwise of not statistically significant and that poor quality, including analyses that were

* transformation of data and improper exclusion suffered from invalid assumptions, of valid data points.

* internally inconsistent.

Defendants reached conclusions that are

* Defendants failed to disclose all data, analyses or reports they relied upon and and are unavailable for review. relied on key reports and analyses that were

* Defendants failed to critically analyze and upon which they relied. assess the quality of the data and reports

* Defendants relied on speculative and actual data or analyses. any foundation linking such determinations to conclusory determinations without providing

* Defendants failed to identify and discuss the risk to the quality and accuracy of the 2009 unsubstantiated assumptions to reach certain BiOp as a result of their use of one or more conclusions or make certain calculations.

* ignored contrary data.

Defendants made selective use of data and

* Defendants failed to disclose numerous research results and data known to them indicating that factors other than the CVP and SWP are major causes of population-level effects to each of the subject species.

* Defendants failed to quantify the effects or resulting population-level consequences of quantitative treatment of eligible data is defendants' prior acknowledgment that CVP/SWP operations, which is contrary to warranted in BiOps like the 2009 BiOp.

* Defendants ignored or failed to respond to analyses, conclusions and recommendations of comments critiquing and questioning the the 2009 BiOp.

Stockton East Case

* to use the best scientific and commercial In adopting the 2009 BiOp, defendants failed data available.

State Contractors Case

* Defendants disregarded relevant data without explanation and arbitrarily selected certain other data.

* Defendants made unfounded assumptions without support and based their analyses on data that with other data, resulting in assumptions was incorrect, incomplete and/or incompatible that are scientifically unsupportable.

* Defendants reached conclusions that are internally inconsistent.

* rather than data or analysis.

Defendants relied on unsupported speculation

* Defendants failed to quantify the Project's effects on the subject species despite the availability of quantitative scientific data.

* the SWP and the CVP, to the exclusion of all Defendants displayed a pervasive bias against and green sturgeon. other potential stressors to salmonid species

* Defendants failed to use and/or disregarded available numerical scientific data to quantify baseline and incremental Project effects.

* policies and guidelines, including the NMFS Defendants failed to follow applicable

Information Quality Guidelines, and the NOAA Information Standards Policy, the COD Information Quality Guidelines.

OID/SSJID Case:

* the impacts of the changes resulting from The modeling done by Defendants to estimate temperature, geomorphology, flow, water performance of the RPA in terms of rights and water supply at New Melones was not based upon the best available scientific and commercial data available.

* As to the Stanislaus River, Defendants failed to distinguish between resident rainbow trout and anadromous steelhead, failed to

to identify and explain which operations of published rotary screw trap data, and failed incorporate, use or rely upon 15 years of Reclamation, if any, impact anadromous steelhead in the Stanislaus River.

The Coalition Case

* Failure to comply with best scientific and

* commercial data available requirement. The Met Case:

* Failure to consider or selective consideration of relevant data, findings, and conclusions pertaining to Bay-Delta science, and improper reliance on incorrect, incomplete, speculative, and/or unsupported data.

* Failure to disclose sources of information relied upon.

4. ESA/APA: Challenges to the RPA: San Luis Case:

* analysis pursuant to Section 7 of the ESA or Failure to make findings or undertake Title 50 of the Code of Federal Regulations regarding whether the RPA (1) can be implemented in a manner consistent with the intended purpose of the agency action, (2) can be implemented consistent with the scope of the action agency's legal authority and jurisdiction, (3) is economically and existence of listed species or result in the the likelihood of jeopardizing the continued technologically feasible, or (4) will avoid destruction or adverse modification of its habitat.

* Violation of Section 7 by requiring an RPA that cannot be implemented consistently within the scope of Reclamation's legal authority and jurisdiction.

Stockton East Case

* implemented in a manner consistent with the Failure to adopt an RPA that (1) can be intended purpose of the action, (2) can be implemented consistent with the scope of the action agency's legal authority and technologically feasible. jurisdiction and (3) is economically and

* Imposition of an RPA that alters the basic design, location, scope, duration and timing of the action and involves major changes to the action.

* Failure to provide a rational connection between the fact found in the 2009 BiOp and the conclusions reached by the BiOp and actions imposed by the RPA.

* not linked to the specific harm caused by the Imposition of conditions by the RPA that are action subject to consultation and failure to specify the projected harm and required level of mitigation in measurable, quantifiable criteria.

* imposing operational requirements for flows Violation of the California Constitution by that require more water than reasonably required for the beneficial use to be served, thereby constituting a waste and unreasonable use of water.

* Reclamation when it agreed to comply with the Violation of the California Constitution by operation requirements for flows because they will release more water than reasonably required for the beneficial use to be served, thereby constituting a waste and unreasonable use of water.

State Contractors Case

* analysis pursuant to Section 7 of the ESA or Failure to make findings or undertake regarding whether the RPA (1) can be Title 50 of the Code of Federal Regulations implemented in a manner consistent with the intended purpose of the agency action, (2) can be implemented consistent with the scope jurisdiction, (3) is economically and of the action agency's legal authority and the likelihood of jeopardizing the continued technologically feasible, or (4) will avoid destruction or adverse modification of its existence of listed species or result in the habitat.

* that cannot be implemented consistently Violation of Section 7 by requiring an RPA jurisdiction. within the scope of DWR's legal authority and

* RPA improperly requires the Projects to by baseline effects, not the operation of the compensate for the impacts to species caused Projects.

* set forth in the BiOp will serve to remove Failure of the BiOp to explain how the RPA by the SWP and CVP. the species from jeopardy purportedly caused

OID/SSJID Case:

* alter or reduce the water rights of OID and Defendants' imposition of an RPA that will and capricious.

SSJID on the Stanislaus River is arbitrary

The Coalition Case:

* requirements for specifying an RPA. For Failure to comply with the regulatory example: < be="" implemented="" in="" a="" manner="" consistent="" failure="" to="" consider="" whether="" the="" rpa="">

CVP. with the intended purpose of the SWP and

< failure="" to="" analyze="" and="" explain="" how="" the="" modification="" of="" critical="">

RPA will avoid jeopardy or adverse

The Met Case:

* analysis pursuant to Section 7 of the ESA or Failure to make findings or undertake regarding whether the RPA (1) can be Title 50 of the Code of Federal Regulations intended purpose of the agency action, (2) implemented in a manner consistent with the of the action agency's legal authority and can be implemented consistent with the scope technologically feasible, or (4) will avoid jurisdiction, (3) is economically and existence of listed species or result in the the likelihood of jeopardizing the continued destruction or adverse modification of its habitat.

* Defining RPAs that are broader than necessary because failed to properly define environmental baseline, quantify existing populations, or use quantitative modeling and integrative analyses to evaluate effects.

* Failure to support RPAs with best available science.

C. Separate Claims Subject to APA Review That Are Amenable to Resolution by Dispositive Motion

1. Reclamation Defendants' Decision to Accept and Implement the 2009 BiOp is Arbitrary and Capricious

San Luis Case

* Reclamation's decision to conditionally accept and to immediately implement the 2009 BiOp is arbitrary, capricious and an abuse of discretion and in excess of statutory jurisdiction, authority or limitations because it is based upon and compelled by the powerful coercive effect of the 2009 BiOp and implements requirements imposed by the BiOp that are illegal and impermissible, for the reasons set forth above.

OID/SSJID Case:

* 2009 BiOp is arbitrary and capricious as it will Reclamation's decision to accept and implement the alter or reduce the water rights of the OID and

* SSJID on the Stanislaus River.

* Reclamation's decision to accept and implement the 2009 BiOp is compelled by the coercive effect of the 2009 BiOp and implements requirements imposed impermissible. by the 2009 BiOp that are illegal and

2. Reclamation's Compliance with 2009 BiOp Will Violate Its Water Rights:

OID/SSJID Case:

* Strict compliance by Reclamation with the terms and conditions of the 2009 BiOp will result in violation of its water rights for New Melones and Act of 1902. the CVP and hence a violation of the Reclamation

3. Invalid Application of the Jeopardy Standard in Violation of the ESA and APA:

The Coalition Case

* 2009 BiOp applies invalid jeopardy standard by interpreting jeopardy in terms of recovery of the species. The 2009 BiOp conflates survival and recovery analysis in to analysis of recovery alone.

* 2009 BiOp fails to use best available science in jeopardy analysis for salmonids.

* 2009 BiOp's use of a 100-year extinction risk does not provide for a reliable risk extinction estimate and therefore the 2009 BiOp's application of jeopardy standard is arbitrary and capricious.

4. ESA-APA Effects Analysis, Jeopardy and Adverse Modification Determinations for Green Sturgeon:

The Coalition Case

* the effects of the action on the green sturgeon. 2009 BiOp fails to properly identify and analyze

* 2009 BiOp fails to provide an assessment of the environmental baseline for the green sturgeon.

The Met Case

* Use of a speculative "potential spawning range" theory to evaluate green sturgeon spawning habitat, and lack of quantitative data on green sturgeon abundance.

5. ESA-APA Failure to Provide Rational Connection Between Facts Found and Conclusions Made.

The Met Case

* Failure to articulate rational connections between (a) analysis of status of the species, action, and (b) conclusions with regard to environmental baseline, and effects of their jeopardy and adverse modification and conclusion modification. that RPA will avoid jeopardy and adverse

6. ESA/APA Effects Analysis, Jeopardy and Adverse Modification Determinations for Southern Resident killer whale:

The Coalition Case

* CVP and SWP's potential populations-level effects 2009 BiOp makes unsupported conclusions about the on the killer whale.

* 2009 BiOp does not quantify the effects of other stressors on the killer whale and does not analyze the effects of these stressors separately from the

* effects of the proposed action. The Met Case:

* Improper use of a qualitative evaluation of project effects on Southern Resident killer whales.

V. ORDERS RE AMENDMENTS TO PLEADINGS

1. Plaintiffs in the San Luis case intend to amend their complaint on or about October 5, 2009, to add claims against the United States Bureau of Reclamation.

VI. ADMINISTRATIVE RECORD ISSUES

1. The Parties agree that the administrative record for the 2009 BiOp will be filed on October 19, 2009. The Federal Defendants shall provide an electronically searchable format for the record to be provided on or before November 19, 2009. After the Administrative Record is filed, the Parties shall confer promptly to resolve any disputes regarding the adequacy of the Administrative Record. If any disputes between the Parties are not resolved, Plaintiffs and Federal Defendants propose that any motions to augment the record or challenge the contents of the record will be filed on or before December 14, 2009, with oppositions to such motions due on January 15, 2010, replies due on January 29, 2010. In the event that one or more motions to augment the record are filed and the moving party seeks to augment the record with a voluminous quantity of documents (i.e., in excess of 25 megabytes), then the moving party is instructed to file and serve such documents on a DVD or CD by overnight delivery and provide a single, printed copy to the Court for its use. The motions hearing will be held on February 22, 2010.

2. Plaintiffs and DWR anticipate that they will submit declarations by experts to help explain complex technical and scientific material in the record. Federal Defendants and Defendant-Intervenors do not anticipate that the limited exceptions for extra-record evidence, including declarations by experts, will apply with respect to these claims. Federal Defendants and Defendant-Intervenors maintain that extra-record evidence is inappropriate and that the Court should not consider the testimony of the Plaintiffs' expert witnesses or any extra-record documents. Accordingly, Federal Defendants and Defendant-Intervenors request that the motions concerning the sufficiency of the record be limited to memoranda identifying the applicable exception(s) to record review and a general description of the nature of the proposed expert witness testimony and/or extra-record documents. Furthermore, if such extra-record evidence is allowed by the court, Federal Defendants and Defendant-Intervenors assert this will require modifications to the merits briefing and hearing date schedules set out below, as Federal Defendants and Defendant-Intervenors reserve the right to insist on expert reports and undertake discovery on Plaintiffs' experts.

Plaintiffs disagree that any such discovery will require modifications to the merits briefing and hearing dates.

VII. MATTERS PRESENTING THEMSELVES FOR EARLY DISPOSITION

1. Certain Plaintiffs may seek early disposition, by way of motion for summary adjudication, of the allegations regarding whether the Federal Defendants complied with obligations under NEPA. Such an early motion for summary adjudication will be filed in accordance with the Court's normal law and motion calendar. Federal Defendants oppose this bifurcation and believe that the Parties should address all claims in one set of briefing, only after the administrative record has been complied, and the Court has resolved any objections to the Administrative Record.

2. 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. Defendant-Intervenors further believe that briefing of the NEPA claim should be postponed until this Court decides the nearly identical NEPA claims that have been raised in the Delta smelt cases. The Court's disposition of the NEPA claim in those cases will certainly inform the NEPA claims in these cases, and may render briefing the NEPA claims unnecessary in this case. If there is early briefing of the NEPA claims, Defendant-Intervenors believe that the parties should agree to a specific schedule for briefing those claims and, if not, reserve the right to request modification of the briefing schedule.

3. After considering the parties' respective position, it is determined the following schedule shall be adopted for resolution by dispositive motion of the NEPA claims. If any party believes any other issue is resolvable by early dispositive motion, that party shall give notice of the nature of the claim on or before October 10, 2009. Dispositive motions on the NEPA claims shall be filed on or before November 2, 2009. Oppositions shall be filed by December 1, 2009. Replies shall be filed by December 15, 2009. The motion will be heard on January 11, 2010.

VIII. DESCRIPTION OF CLAIMS AND ISSUES THAT MAY BE THE SUBJECT OF DISCOVERY

1. The majority of the claims in the Salmon Cases are record-based. Other than as described in the remainder of this section, Plaintiffs generally do not anticipate that discovery will be necessary, except to the extent that discovery may be necessary to augment or challenge the contents of the administrative record. Federal Defendants and Defendant-Intervenors assert that all the claims are subject to the record review rules and discovery is inappropriate.

2. Some Plaintiffs believe that discovery may be required, as well as expert testimony, for their claims identified above as falling under the heading "Common Claims: APA Claims That Are Amenable to Resolution by Dispositive Motion." More particularly, some Plaintiffs believe that such claims may require consideration of extra-record documents based on the recognized exceptions to the consideration of extra-record materials, as discussed, e.g., in this Court's Order in the case challenging the 2004 Delta Smelt BiOp (NRDC, et al. v. Kempthorne, et al., Case No. 1:05-cv-1207, Doc. 323 at 33-39.) This extra-record evidence, and its development, may support or require discovery. These Plaintiffs also believe that expert witness testimony will be required for proper consideration of the complex scientific and technical information upon which the 2009 BiOp was supposed to be based.

3. If Plaintiffs are successful on claims against the 2009 BiOp, Plaintiffs in all of the cases and DWR will likely seek discovery related to the appropriate remedy.

4. Federal Defendants and Defendant-Intervenors believe that, because this is a record review case to be decided upon the basis of the administrative record, extra-record evidence, discovery, and expert witness testimony is inappropriate. If the Court permits extra-record evidence, discovery, and expert witness testimony, both Federal Defendants and Defendant-Intervenors reserve the right to depose Plaintiffs' experts, seek additional discovery, and request modification of the briefing schedule.

5. The Court declines to make any decisions about the subject of discovery pending resolution of motions directed to the Administrative Record.

IX. COURT-APPOINTED EXPERT

1. Plaintiffs and DWR support the use of a court-appointed expert under Federal Rule of Evidence 706.

2. Federal Defendants oppose the use of a Rule 706 expert, which necessarily augments the administrative record, as not appropriate and not in accordance with the APA. If the Court decides to appoint such an expert, Federal Defendants agree with the Defendant-Intervenors that the use of such an expert should be narrowly-tailored and the costs borne by Plaintiffs.

3. Defendant-Intervenors believe that the use of a court-appointed expert would be inappropriate and unnecessary. If the Court decides to appoint an expert, the Court's use of the expert should be very narrow in order to ensure that the Court's review is appropriately focused on the adequacy of the administrative record. If the Court decides to appoint an expert, the costs of any such expert should be borne by Plaintiffs.

4. Plaintiffs assert that there is no good cause for Plaintiffs to bear all of the costs of a court-appointed expert and propose that the costs be divided equally either three ways -among Plaintiffs, Federal Defendants and Defendant-Intervenors -or among all parties.

5. The Court intends to provide notice to counsel concerning its decision whether a 706 expert is required in this case and the proposed terms on which the expert would serve on or before December 21, 2009. The parties shall file consolidated responses with all parties supporting the Court's proposal to file a consolidated response and all parties opposing the Court's proposal to file a consolidated response on or before January 22, 2010. Responses to the proposals shall include the identity of a proposed court-appointed expert, the terms to govern the expert pursuant to Rule 706 and conditions on which the expert would serve, provision for compensation of the expert, and any other issues that pertain to utilization of the expert. Oppositions on the expert's role shall be filed on or before February 1, 2010.

The matter shall be heard on February 8, 2010, at 11:00 a.m. in Courtroom 3.

X. SCHEDULING DATES

1. A scheduling conference shall be held on March 1, 2010, at 11:00 a.m. in Courtroom 3 at which time issues of extra-record discovery, pre-trial motions, and dispositive cross-motions shall be addressed.

2. Pre-Trial Conference and Trial date to be scheduled.

XI. CONSENT TO MAGISTRATE JUDGE

1. The parties do not agree that a Magistrate Judge is appropriate for the Salmon Cases.

XII. STATUS OF ALL MATTERS PRESENTLY SET BEFORE THE COURT

1. Intervention: On August 31, 2009, the Court conducted a hearing in the San Luis, Stockton East and State Contractors' Cases on the Motions to Intervene by Pacific Coast Federation of Fishermen's Associations/Institute for Fisheries Resources, the Bay Institute, California Trout, Friends of the River, Natural Resources Defense Council, Northern California Council of the Federation of Fly Fishers, San Francisco Baykeeper, Sacramento River Preservation Trust, and The Winnemem Wintu Tribe (collectively, "Defendant-Intervenors") and responses thereto and determined that Defendant-Intervenors are granted leave to intervene as of right for all purposes in these proceedings. The Parties to the Coalition Case stipulated to Defendant-Intervenors' intervention in that case provided that Defendant- Intervenors do not file any cross or counter claims as to the existing complaint. Defendant-Intervenors have not yet intervened in the OID/SSJID Case. Intervention by stipulation is anticipated in the Met Case.

2. For each individual case, the status is as follows:

a. San Luis Case

i. All parties have been served with the Summons, Complaint for Declaratory and Injunctive Relief; Order Setting Mandatory Scheduling Conference; Notice of Related Cases; Motion to Consolidate and Response thereto; and Motion to Intervene. No answers are yet filed. The Federal Defendants have received a stipulated extension of time to answer to ten days after service of the amended complaint. No other law and motion matters related to this action are currently pending before the Court.

b. Stockton East Case

i. All parties have been served with the Summons; Complaint for Declaratory and Injunctive Relief; Notice of Related Cases; Order Setting Mandatory Scheduling Conference; Motion to Consolidate and Response thereto; and Motion to Intervene. Federal Defendants' answer was filed on August 31, 2009. Defendant-Intervenors' answer was filed on September 3, 2009. No other law and motion matters related to this action are currently pending before the Court.

c. State Contractors Case

i. All parties have been served with the Summons; Complaint for Declaratory and Injunctive Relief; Request for Judicial Notice; Notice of Related Cases; Order Setting Mandatory Scheduling Conference; Motion to Consolidate and Response thereto; and Motion to Intervene. No answer has yet been filed in this action. DWR has received a stipulated extension of time to answer to September 21, 2009. No other law and motion matters related to this action are currently pending before the Court.

d. Coalition Case

i. All parties, except DWR, have been served with the Summons; Complaint for Declaratory and Injunctive Relief; Notice of Related Cases; Civil Cover Sheet; and Corporate Disclosure Statement. No answer has yet been filed in this action. No other law and motion matters related to this action are currently pending before the Court.

e. OID/SSJID Case

i. All parties have been served with the Summons; Complaint for Declaratory and Injunctive Relief; and Notice of Related Cases. No answer has yet been filed. An amended complaint will likely be filed to correct an error in the Third Cause of Action. No other law and motion matters related to this action are currently pending before the Court.

f. Met Case

i. All parties have been served with the Summons; Complaint for Declaratory and Injunctive Relief; and Notice of Related Cases. No answer has yet been filed. No law and motion matters related to this action are currently pending before the Court.

XIII. POSSIBILITY OF SETTLEMENT AND SETTLEMENT CONFERENCE

1. The parties view the prospect of settlement as unlikely. In the event the parties believe a settlement conference would be helpful, they shall contact the courtroom deputy and a settlement conference will be scheduled before the assigned Magistrate Judge.

XIV. JURY

1. The Salmon Cases are non-jury cases and shall be tried to the Court without a jury.

XV. TRIAL DAYS REQUIRED

1. The parties estimate one day for dispositive motions on claims identified as appropriate for early disposition. The parties estimate three full days for the hearings on all other dispositive motions on common claims challenging the 2009 BiOp. Federal Defendants and Defendant-Intervenors estimate one full day for that hearing.

2. If Plaintiffs are successful on the merits of any of their claims against the 2009 BiOp, then Plaintiffs and DWR believe a trial to determine appropriate remedies will be necessary. Plaintiffs and DWR anticipate two weeks will be required for a remedies trial. Defendant-Intervenors believe it is premature and speculative to discuss an evidentiary remedies hearing before that becomes necessary.

XVI. RELATIONSHIP TO OTHER MATTERS PENDING IN THIS OR ANY OTHER COURT

1. The Salmon Cases are related to Pacific Coast

Federation of Fisherman's Association/Institute for Fisheries Resources v. Gutierrez, E.D. Cal. Case No. 1:06-cv-0245 OWW GSA ("Gutierrez"), Natural Resources Defense Council et al. v. Kempthorne, E.D. Cal. Case No. 1:05-cv-1207 OWW GSA ("Kempthorne"), Central Delta Water Agency et al. v. United States Fish and Wildlife Service, et al., Case No. 1:09-cv-1003 OWW GSA (E.D. Cal.), and the Consolidated and/or Coordinated Delta Smelt Cases ("Delta Smelt Cases"), 1:09-cv-0407 OWW GSA, 1:09-cv-0422 OWW GSA, 1:09-cv-0631 OWW GSA, 1:09-cv-0892 OWW GSA, 1:09-cv-0480 OWW GSA.

2. Specifically with respect to the Delta Smelt Cases, Plaintiffs San Luis & Delta Mendota Water Authority, Westlands Water District, and State Water Contractors anticipate coordinating preliminary interim remedy hearings in those cases with preliminary interim remedy hearings in the Salmon Cases in the Fall 2009.

XVII. THE APPROPRIATENESS OF ANY VARIANCE FROM THE USUAL FILING AND SERVICE REQUIREMENTS APPLICABLE IN ACTIONS OR ANY OTHER MATTERS THAT MAY FACILITATE THE JUST, SPEEDY, AND INEXPENSIVE DETERMINATION OF THE ACTION

1. In accordance with this Court's Order of May 1, 2009, in the Smelt Case, the Parties agree that the Administrative Record will be filed in the form of searchable CD-ROMs. However, the searchable version will not be available to file on October 19, 2009, but will be provided to the Court and the parties as soon as possible thereafter, on or before November 19, 2009.

2. In the interests of efficiency and consistent with the e-filing requirements of the Eastern District, service of process of pleadings shall be deemed accomplished on the date of electronic service.

XVIII. INTERIM PROVISIONAL REMEDIES

1. The Plaintiffs in these cases give notice that they may seek interim provisional remedies based on the conditions during the 2009-2010 water year and other exigencies that may be presented.

2. Federal Defendants and Defendant-Intervenors note that in the event that interim provisional remedies are sought, changes to the present case schedule may be required.

IT IS SO ORDERED.


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