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Natural Resources Defense Council v. Kempthorne

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION


October 30, 2009

NATURAL RESOURCES DEFENSE COUNCIL, ET AL., PLAINTIFFS,
v.
DIRK KEMPTHORNE, SECRETARY, UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL., DEFENDANTS.
SAN LUIS & DELTA-MENDOTA WATER AUTHORITY, ET AL., DEFENDANT-INTERVENORS.
ANDERSON-COTTONWOOD IRRIGATION DISTRICT, ET AL., JOINED PARTIES.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

Order re Cross Motions for Summary Judgment re Reasonable and Prudent Alternative Claims

(Docs. 230 & 236)

Plaintiffs in all five consolidated cases ("Plaintiffs") have moved for summary judgment on their "reasonable and prudent alternative" ("RPA") claims, arguing that the United States Fish and Wildlife Service ("FWS") was required to make certain findings in the text of its biological opinion ("BiOp") related to its RPA, namely whether (1) the RPA is consistent with continued operations of the State Water Project ("SWP") and Central Valley Project ("CVP"), (2) implementation of the RPA is economically and technologically feasible, and (3) the RPA is capable of being implemented within the legal authority and jurisdiction of the operators, the Bureau of Reclamation ("Reclamation") and the California Department of Water Resources ("DWR"). Docket No. 237. DWR filed a brief in support of Plaintiffs' motion. Docket No. 246. The Federal Defendants opposed, Docket No. 274, and Plaintiffs and DWR replied.

Docket Nos. 295 & 300. The Federal Defendants also cross-moved for summary judgment on these claims, Docket No. 231, which the Plaintiffs and DWR opposed, Docket Nos. 273 & 282, and the Federal Defendants filed a reply. Docket No. 296. The Plaintiffs moved to strike Federal Defendants' cross-motion. Docket No. 284.

NOW, THEREFORE, good cause appearing, and for the reasons set out in full in the Court's Memorandum Decision re Cross Motions for Summary Judgment re Reasonable and Prudent Alternative Claims, Docket No. 354 (Oct. 15, 2009), Plaintiffs' motion for summary judgment on the narrow issue of whether FWS is required to discuss the first three RPA requirements on the face of the BiOp is DENIED, as is Federal Defendants' cross-motion, WITHOUT PREJUDICE to the next round of dispositive motions which will address the merits all issues of the BiOp's sufficiency.

In addition, Plaintiffs' motion to strike is GRANTED WITHOUT PREJUDICE to Federal Defendants' renewal of their motion on the same grounds in the next round of briefing.

SO ORDERED

20091030

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