The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
DELTA SMELT CONSOLIDATED CASES
(1:09-cv-00407 OWW DLB) (1:09-cv-00480-OWW-GSA) (1:09-cv- 00422-OWW-GSA) (1:09-cv-00631-OWWDLB) (1:09-cv-00892-OWW-DLB) (1:09-CV-01201-OWW-DLB)
MEMORANDUM DECISION RE FEDERAL DEFENDANTS' MOTION TO AMEND THE JUDGMENT OR IN THE ALTERNATIVE FOR A STAY PENDING APPEAL (DOC. 856)
On March 29, 2011, Final Judgment was entered on all remaining claims in this case. The 2008 Delta Smelt Biological Opinion ("BiOp"), its Reasonable and Prudent Alternative ("RPA"), and Reclamation's December 2008 Provisional Acceptance of the RPA were remanded without vacatur with the following instructions:
1. USFWS shall complete by October 1, 2011 a new delta smelt Biological Opinion consistent with the Court's December 14, 2010 Memorandum Opinion, with the exception of making express written findings in either the BiOp or the Administrative Record as to the first three factors of the four-part regulatory definition of an RPA in 50 C.F.R. § 402.02, which shall be completed by November 30, 2011.
2. Reclamation shall complete review of the RPA in accordance with NEPA by December 15, 2011.
On April 8, 2011, Federal Defendants moved to alter or amend the judgment, or in the alternative for a stay pending appeal, on the ground that the new BiOp, RPA, and NEPA compliance could not be completed within the time limits prescribed. Doc. 856. Federal Defendants filed a proposed amended judgment, which alters the existing deadlines to extend completion of the entire remand process 30 months from October 1, 2011. Doc. 856-2. Federal Defendants also filed the Declarations of Susan Fry and Jennifer Norris. Docs. 857 & 858. San Luis & Delta Mendota Water Authority and Westlands Water District; Metropolitan Water District of Southern California; State Water Contractors; Coalition for a Sustainable Delta and Kern County Water Agency; Stewart & Jasper Orchards, Arroyo Farms, LLC, and King Pistachio Grove; and the Family Farm Alliance (collectively, "Plaintiffs") oppose the specific terms of Federal Defendants' proposed amended judgment, instead proposing their own 20-month remand schedule. Docs. 864 & 864-1. Plaintiffs also filed the declarations of James Snow and Susan Hootkins. Docs. 866 & 867. Plaintiff-in-Intervention, the California Department of Water Resources ("DWR"), partially joins Plaintiffs' opposition, and does not oppose a remand lasting between 20 and 30 months. Doc. 865. Federal Defendants replied. Doc. 868. Defendant Intervenors filed an objection to Plaintiffs' request to now set an interim remedies hearing in August 2011. Doc. 869.
Federal Defendants' request to have their motion heard on shortened time was granted. See Docs. 859, 860. A hearing was originally set for April 22, 2011, but was continued by agreement of the parties to April 27, 2011, Doc. 862, when the matter was heard.
A.Motion to Alter/Amend Judgment.
A motion to alter or amend the judgment is timely if filed within twenty-eight days of the entry of judgment. Fed. R. Civ. P. 59(e). The district court "has considerable discretion when considering a motion to amend a judgment." Turner v. Burlington N. Santa Fe R.R. Co ., 338 F.3d 1058, 1063 (9th Cir. 2003) (citing Fed. R. Civ. P. 59(e)). Although Rule 59(e) itself does not state the grounds on which relief may be granted, the Court of Appeals has established that altering or amending the judgment is proper where "the district court: (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." Circuit City Stores. v. Mantor , 417 F.3d 1060, 1064 (9th Cir. 2005). The district court has subject matter jurisdiction to consider a timely motion under Rule 59(e) even where such motion is filed subsequent to a notice of appeal. Tripati v. Henman , 845 F.2d 205 (9th Cir. 1988). The filing of a Rule 59(e) motion suspends the operation of a notice of appeal until it is resolved, at which point the notice of appeal becomes effective. See Fed. R. App. P. 4(A)(4)(B)(i).
Federal Defendants maintain that it is not feasible to complete by the end of 2011 a new BiOp, RPA analysis, and NEPA review to satisfy the December 14, 2010 memorandum decision ("December 2010 MSJ Decision"). Federal Defendants emphasize that no party proposed such a compressed schedule.
a)Interpretation of the December 2010 MSJ Decision. Federal Defendants' motion to amend the judgment is premised on their interpretation of the December 2010 MSJ Decision. According to Federal Defendants' interpretation, the Court has ordered the completion of several "time- and resource-intensive harm and feasibility analyses," including:
(a) developing "alternatives" to the Reasonable and Prudent Alternative that the Service deems necessary to avoid jeopardy and adverse modification; (b) measuring and addressing water supply needs beyond the species;
(c) accounting for competing demands for water from the Projects, including but not limited to the requirements of Cal. Water Code § 275, Cal. Const. art. X, § 2, and Section 8 of the Reclamation Act of 1902, 43 U.S.C. § 383; and (d) making express written findings in either the BiOp or the Administrative Record as to the first three factors of the four-part regulatory definition of an RPA in 50 C.F.R. § 402.02.
Doc. 856-1 at 6. Subparagraph (a) accurately reflects the prior holding that Reclamation violated NEPA by failing to effect any NEPA compliance prior to adopting and implementing the 2008 Smelt BiOp. See generally Doc. 399. Subparagraph (d) accurately recognizes the ruling that FWS acted unlawfully by failing to include written findings in either the BiOp or the AR concerning the ...