The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
DELTA SMELT CONSOLIDATED CASES
ORDER TO SHOW CAUSE RE CONSOLID ATION
In the course of reviewing the pending motion to compel in Family Farm Alliance v. Salazar , 1:09-cv-01201 OWW DLB, set for hearing on December 14, 2009, it is apparent that most of the claims in Family Farm Alliance , brought under the Information Quality Act ("IQA") and the Endangered Species Act ("ESA"), substantially overlap with claims challenging the 2008 Biological Opinion ("BiOp") in the Delta Smelt Consolidated Cases . The first claim for relief in Family Farm Alliance alleges:
The 2008 Biological Opinion failed to use the "best available scientific and commercial data available' as required by the IQA, IQA Guidelines and Section 7 of the ESA in at least the following ways: By failing to conduct an objective analysis and premising the findings on assumptions; excluding and dismissing other, data supported analyses of the decline of the delta smelt, the results of which indicate that major adverse effects on the population dynamics of delta smelt are caused by factors other than the operations of the CVP and SWP; arbitrarily selecting the data relied upon and disregarding relevant data without explanation, including analyses and comments provided by a peer review panel; basing the analyses on data that was incorrect, incomplete, or otherwise of poor quality, including analyses that were not statistically defensible, that suffered from invalid assumptions, improper transformation of data, and/or which may have relied upon selective or improper use or manipulation of data points; failing to disclose all the data, analyses, or reports relied upon, and relying on key reports, data, and analyses that were and continue to 10 be unavailable for review; and failing to critically analyze and assess the quality (e.g., accuracy, objectivity, reproducibility, and robustness) of the data and reports relied upon in the 2008 Biological Opinion.
Family Farm Alliance , 1:09-cv-1201 OWW DLB, Complaint ("FFAC"), Doc. 1 at ¶44.
The first cause of action in San Luis & Delta-Mendota Water Authority et al. v. Salazar et al. , 1:09-cv-407 OWW DLB, alleges:
.... In fulfilling [the] requirements [of the ESA], Section 7 mandates that "each agency shall use the best scientific and commercial data available." 16 U.S.C. § 1536(a)(2). Section 7's mandate to use the "best scientific and commercial data available" applies to FWS Defendants' preparation and issuance of the 2008 Biological Opinion.
San Luis First Amended Complaint ("SLFAC"), Doc. 292, at ¶53.
The SLFAC refers to various information quality standards, including those promulgated under the IQA, to define the best available science standard. See id. ¶¶ 54-69; see also id. ¶¶ 70-72 (similar allegations regarding FWS's Scientific Code of Cnduct). The SLFAC's substantive allegations also overlap with those in the FFAC:
73. FWS Defendants promulgated the 2008 Biological Opinion in a manner that is arbitrary, capricious and not in accordance with law, in excess of their statutory jurisdiction and authority, and in violation of the APA, because FWS Defendants failed to base their decisions on the best scientific and commercial data available, and failed to follow the applicable FWS Information Standards Policy, DOI Information Quality Guidelines, FWS Information Quality Guidelines, and FWS Scientific Code of Conduct.
74. The FWS Defendants failed to comply with the foregoing standards in the 2008 Biological Opinion. The 2008 Biological Opinion, including but not limited to the effects analysis, jeopardy and adverse modification determinations, reasonable and prudent measures, and incidental take statement, violated Section 7's "best scientific and commercial data available" mandate and the policies and guidelines interpreting this mandate in at least the following ways:
(a) FWS Defendants did not conduct an objective analysis but instead displayed a pervasive bias against the CVP and SWP, which caused Defendants to exclude and dismiss credible analyses whose results indicate that major adverse effects on the population dynamics of delta smelt are caused by factors other than the operations of the CVP and SWP, and involve relationships and factors other than those highlighted in the 2008 Biological Opinion; (b) FWS Defendants arbitrarily selected the data 22 they did rely upon and disregarded relevant data without explanation, including analyses and comments provided by a peer review panel and by the Authority and State Water Contractors submitted to FWS Defendants before promulgation of the final 2008 Biological Opinion;
(c) FWS Defendants based their analyses on data that was incorrect, incomplete, or otherwise of poor quality, including analyses that were not statistically significant and that suffered from invalid assumptions, improper transformation of data, and improper exclusion of valid data points;
(d) FWS Defendants reached conclusions that are internally inconsistent, including relying upon particular reports and analyses as sufficient to support certain conclusions and assumptions in the 2008 Biological Opinion, but ignoring or discounting other findings in those same reports and analyses that refute or cast doubt upon the ...