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In re Delta Smelt Consolidated Cases

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


August 2, 2010

THE DELTA SMELT CONSOLIDATED CASES

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

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT- INTERVENORS' AND FEDERAL DEFENDANTS' MOTIONS TO STRIKE PLAINTIFFS' EXTRA-RECORD DECLARATIONS AND EXHIBITS ORDER

Defendant-Intervenors' and Federal Defendants' Motions to Strike Plaintiffs' Extra-Record Declarations and Exhibits (Docs. 662, 672) were heard and considered by the Court at the hearing on cross-motions for summary judgment in this matter held on July 8 and 9, 2010. All parties were represented by counsel, as stated on the record.

NOW THEREFORE, for the reasons articulated by the Court on the record at the hearing, the Court hereby GRANTS IN PART AND DENIES IN PART Defendant-Intervenors' and Federal Defendants' Motions to Strike Plaintiffs' Extra-Record Declarations and Exhibits. Specifically, the Court hereby STRIKES the following:

(1) Testimony in the Declarations of Dr. Ray Hilborn (Docs. 393, 600) offering the legal conclusion that the U.S. Fish & Wildlife Service violated the Endangered Species Act by failing to use quantitative population dynamics modeling in the biological opinion for the delta smelt;

(2) Testimony in the Declarations of Dr. Richard B. Deriso (Docs. 396, 401, 605) offering the legal conclusion that the U.S. Fish & Wildlife Service violated the Endangered Species Act by failing to scale raw salvage numbers to population size;

(3) Testimony in the Declarations of Dr. Richard B. Deriso (Docs. 396, 401, 605) specifying that the ceiling on Old and Middle River flows should have been set at no lower than negative 6100 cfs;

(4) Testimony in the Declarations of Dr. Bryan Manly (Docs. 397, 599) offering the legal conclusion that the U.S. Fish & Wildlife Service violated the Endangered Species Act by concluding that entrainment affects subsequent year abundance of delta smelt and that entrainment of Pseudodiaptomus forbesi in the summer months is limiting delta smelt abundance;

(5) Testimony in the Declarations of Dr. Bryan Manly (Docs. 397, 599) that the U.S. Fish & Wildlife Service erred in its conclusion that entrainment in some years has sporadically reduced delta smelt abundance by a significant portion the following year;

(6) Testimony in paragraphs 9-12 of the Declaration of Dr. Bryan Manly (Doc. 397) regarding statistical methods that could have been used by the U.S. Fish & Wildlife Service to analyze the effects of entrainment;

(7) Testimony in the Declaration of Dr. Bryan Manly (Doc. 397) regarding statistical methods that could have been used by the U.S. Fish & Wildlife Service to perform its own analysis of whether export operations prevent Pseudodiaptomus forbesi populations from migrating into the western Delta where Delta smelt reside;

(8) Testimony in paragraphs 14-17 of the Declaration of Charles H. Hanson (Doc. 395) regarding delta smelt habitat;

(9) Testimony in paragraphs 23-33 of the Declaration of Charles H. Hanson (Doc. 395) regarding CalSim and DAYFLOW modeling;

(10) Testimony in paragraphs 34-37 and 40-42 of the Declaration of Charles H. Hanson (Doc. 395), and paragraphs 5-7 of the Reply Declaration of Charles H. Hanson (Doc. 598), regarding the X2 standard;

(11) Testimony in paragraphs 38-39 of the Declaration of Charles H. Hanson (Doc. 395), and paragraphs 9-10 of the Reply Declaration of Charles H. Hanson (Doc. 598), regarding whether delta smelt are habitat limited;

(12) Testimony in paragraphs 11-12 of the Reply Declaration of Charles H. Hanson (Doc. 598) regarding the particle tracking methodology.

Defendant-Intervenors' and Federal Defendants' Motions to Strike Plaintiffs' Extra-Record Declarations and Exhibits are hereby DENIED in all other respects.

IT IS SO ORDERED.

20100802

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