The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
SUPPLEMENTAL FINDINGS OF FACT AND CONCLUSIONS OF LAW RE: PLAINTIFFS' REQUEST FOR PRELIMINARY INJUNCTION (SUPPLEMENTING DOC. 347)
On May 18, 2010, the Court issued findings of fact and conclusions of law concerning motions for interim relief/ preliminary injunction. Findings of Fact and Conclusions of Law re: Plaintiffs' Request for Preliminary Injunction (Docs. 161 & 230), Doc. 347 ("Findings & Conclusions"). The motions were brought by Plaintiffs San Luis & Delta-Mendota Water Authority and Westlands Water District (collectively "San Luis Plaintiffs"). Docs. 164, 230, 233. Plaintiffs State Water Contractors, Stockton East Water District, Oakdale Irrigation District, and South San Joaquin Irrigation District; and Plaintiff-Intervenor California Department of Water Resources ("DWR") filed statements of non-opposition regarding San Luis Plaintiffs' request to enjoin Action IV.2.1. Docs. 247, 248, 251. The motion regarding Action IV.2.3 was joined by plaintiffs Kern County Water Agency and Coalition for a Sustainable Delta. Doc. 181. DWR filed a partial joinder in and statement of non-opposition to the Action IV.2.3 motion. Doc. 249.
The Findings and Conclusions explained that the requested relief could not be ordered without further evidence to establish that the requested relief would not violate section 7 of the federal Endangered Species Act ("ESA"). Specifically, "[i]njunctive relief cannot be imposed without up-to-date evidence of the status of the species to assure that altered operations will not deepen jeopardy to the affected species or otherwise violate other laws." Findings & Conclusions 134:4-7. A hearing to address the proposed injunction and any imminence of harm to the species was scheduled for May 19, 2010. Findings & Conclusions 134:21-23. After hearing argument from the parties on May 19, further proceedings were scheduled for May 25, 2010. 5/19/10 Rough Tr. 39:16-19.
Plaintiffs filed the declarations of Terry Erlewine (Doc. 356) and Bradley Cavallo (Doc. 358), and exhibits thereto. Federal Defendants filed the declarations of Jeffrey Stuart and exhibits thereto (Doc. 364) and Ronald Milligan (Doc. 366), and a partial joinder in Defendant-Intervenors' supplemental opposition (Doc. 369). Defendant-Intervenors filed a supplemental memorandum in opposition to Plaintiffs' motions for preliminary Injunction (Doc. 365), and a related request for judicial notice (Doc. 368) and supporting declaration (Doc. 368-2). At the May 25, 2010 hearing, the parties presented evidence concerning the status of the species
The original Findings and Conclusions are incorporated by this reference. After considering additional testimony, exhibits received in evidence, the parties' additional submissions, and oral arguments, the Court makes these supplemental findings of fact and conclusions of law.
To the extent any finding of fact may be interpreted as a conclusion of law or any conclusion of law may be interpreted as a finding of fact, it is so intended.
1. Under the National Marine Fisheries Service's ("NMFS") June 4, 2009 Biological Opinion ("BiOp" or "Salmonid BiOp"), the pumping restrictions associated with Action IV.2.1 terminate May 31. BiOp at 641-42. The proposed injunction would enjoin the implementation of Action IV.2.1 from May 26 to May 31, 2010 only.
2. Under the BiOp, the pumping restrictions associated with Action IV.2.3 terminate on June 15 or when the average daily water temperature at Mossdale is greater than 72§ Fahrenheit for seven consecutive days, whichever is sooner. BiOp at 650.
3. Given the time limit in the BiOp, the proposed injunction against Action IV.2.3 will be in effect at most from May 26 to June 15, 2010. The requested injunction includes a three day "ramping-up" period, during which time exports will be gradually increased. 5/25/10 Rough Tr. 207:25-208:8.
B. Current Status Of The Species
4. The parties agreed at the May 25 hearing that only the current status of the Central Valley spring-run Chinook salmon ("spring-run") and Central Valley steelhead ("CV steelhead") are relevant to the requested relief.*fn1 5/25/10 Rough Tr. 20:1-21:9; 37:13-38:5; 5/25/10 Rough Tr. 139:22-25. These findings focus on these two species.
(1) Central Valley Spring-Run Chinook Salmon (O. tshawytscha)
5. NMFS listed the spring-run as a "threatened" species under the ESA on January 5, 2006. 71 Fed. Reg. 834 (Jan. 5, 2006). NMFS designated critical habitat for the spring-run on September 2, 2005. 70 Fed. Reg. 52,604 (Sept. 2, 2005).
6. The current population figure for spring-run returning in 2009 is 3,802 fish. Gov't Salmon Exh. 102 at internal Exhibit 7. This is a decrease from 10,828 returning spring-run adults in 2006, the last time this cohort spawned in the Central Valley. Id .; id ., ¶10.
7. Mr. Stuart testified that based on the historical salvage data, the majority of spring-run emigrate through the Delta in April, with emigration tailing off into May and early June. 5/25/10 Rough Tr. 108:9-16.
8. Mr. Cavallo estimated that 90 percent of the mixed pool of spring-run and fall-run Chinook young-of-the-year will exit the Delta by May 25, 2010. 5/25/10 Rough Tr. 23:21-24:1; DWR Ex. 519 at ¶7. Mr. Stuart testified that typically 98 percent of the spring-run have passed through the Delta by the end of May. Gov't Salmon Ex. 102 at ¶12. This means between 90 to 98 percent of spring-run are not within the influence or affect of the remedy sought by Plaintiffs. 5/25/10 Rough Tr. 207:21-24.
9. The total direct seasonal loss of spring-run size Chinook salmon at the export facilities as of May 17, 2010, was 4,419 fish. Gov't Salmon Ex. 102 at ¶12. Mr. Stuart testified that the Salmonid BiOp does not use spring-run sized Chinook salmon as a metric to determine the ESA take limit. 5/25/10 Rough Tr. 150:18-20. This is because spring-run Chinook are not reliably distinguishable from fall-run Chinook using a length at date criteria. 5/25/10 Rough Tr. 21:17-22. Instead, the one percent incidental take limit for spring-run Chinook uses hatchery late-fall Chinook salmon as surrogates for the yearling spring-run. 5/25/10 Rough Tr. 150:6-10.
10. Mr. Stuart testified that if the proposed preliminary injunction were issued, he did not anticipate that the incidental take limit for yearling spring-run Chinook would be exceeded. 5/25/10 Rough Tr. 161:10-14. However, the purpose of the incidental take limit is to identify a point at which reinitiation of consultation should occur. 3/31/10 Tr. 113:20-22. It is not the default level at which the facilities should be operated. If the RPA works as designed, the incidental take limit should never be reached. Id. at 113:25-114:7, 133:15-24. Mr. Stuart's testified that the low number of steelhead taken at the pumps is evidence that the RPA is "functioning" as it was "designed." Id ., 126: 12-20.
11. Because spring-run and fall-run Chinook are "indistinguishable when captured in the Delta or its salvage facilities," the breakdown between spring-run and fall-run within the 4,419 fish figure is unknown. 5/25/10 Rough Tr. 24:2-11, 31:5-18; see 5/25/10 Rough Tr. 147:20-23. Mr. Cavallo opined that it is "reasonable to assume ... that most of those fish [4,419 salvage] are, in fact, fall-run." 5/25/10 Rough Tr. 31:5-18.
12. In the BiOp, NMFS stated that "for Chinook salmon, the losses are probably overestimated due to the inability to identify individuals to race (e.g., most Chinook salmon reported to be within the spring-run size category are actually fall-run)." BiOp at 776; 5/25/10 Rough Tr. 143:21-12. Mr. Stuart agreed with this statement. 5/25/10 Rough Tr. 144:4-12.
13. Mr. Stuart testified that he was not aware of the existence of any studies that specifically determined late-emigrating spring-run Chinook are genetically diverse from fish that out-migrated at an earlier date. 5/25/10 Rough Tr. 157:18-25. However, Mr. Stuart relied upon the McElhany study and his general knowledge as a molecular biologist to support his opinion that the tail of the spring-run possess specific genetic diversity that make them sufficiently valuable genetically and deserving of protection. 5/25/10 Rough Tr. 156:18-157:17. Mr. Stuart's testimony has foundation, making this a dispute among scientists about the value in terms of genetic diversity of the tail end of the spring-run. 5/25/10 Rough Tr. 212:25-213:12.
14. Mr. Stuart testified that he could not provide a quantified estimate of the proportion of the spring-run Chinook that have not exited the Delta that would have to be adversely affected before there is a negative impact on spatial or genetic diversity of the species. 5/25/10 Rough Tr. 159:20-24.
15. There is no reasonable prospect that the proposed remedy will salvage all of the remaining 2 to 10 percent of spring-run in the Delta. 5/25/10 Rough Tr. 208:9-16.
16. Mr. Cavallo testified that the best available coded wire tag studies do not demonstrate any export related mortality effect for fish emigrating from the San Joaquin system. 5/25/10 Rough Tr. 39:1-24. Mr. Cavallo also opined that the proposed remedy would not "significantly reduce the survival or recovery probability" of the spring-run, nor would it "significantly diminish the value of their critical habitat for survival or recovery." Id. ; DWR Ex. 519 at ¶12. "17. This opinion that unlimited pumping will have no adverse effect on the species is contrary to the evidence. There is ample record evidence that at elevated pumping ...