The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION GRANTING REQUEST FOR APPROVAL OF CONSENT DECREE (DOC. 230).
On January 29, 2008, the Coalition for a Sustainable Delta, Berrenda Mesa Water District, Lost Hills Water District, Wheeler Ridge-Maricopa Water Storage District and Dee Dillon ("Plaintiffs") filed suit against Defendant John McCamman, in his Official Capacity as Director of the California Department of Fish and Game ("State Defendant" or "DFG"), alleging that State Defendant's enforcement of California's striped bass sport fishing regulations, Cal. Code Regs. tit. 14, § 5.75, cause a striped bass population that is higher than it otherwise would be in nature in the Sacramento-San Joaquin Delta and associated rivers and tributaries, which causes "take" of Sacramento River winter-run Chinook salmon, Central Valley spring-run Chinook salmon, Central Valley steelhead, and delta smelt (collectively, "Listed Species"), in violation of section 9 of the Endangered Species Act ("ESA"), 16 U.S.C. § 1538. State Defendant disputes that DFG's enforcement of the striped bass sport fishing regulations causes unlawful "take."
On May 29, 2008 and July 24, 2008, respectively, Central Delta Water Agency, South Delta Water Agency, Honker Cut Marine, Inc., Rudy Mussi, and Robert Souza (collectively, "Central Delta Parties"); and the California Sportfishing Protection Alliance, California Striped Bass Association, and the Northern California Council of the Federation of Fly Fishers (collectively, "CSPA") were granted permission to intervene as of right, provided that they strictly limit their participation to issues about which they can provide unique information and/or arguments. Docs. 32 & 41. Specifically, the Central Delta Parties argue that the striped bass sport fishing regulations are necessary to achieve the doubling goals for striped bass prescribed by the Central Valley P roject Improvement Act ("CVP2I A").
A July 21, 2010 Memorandum Decision denied Plaintiffs' motion for summary judgment that State Defendant's conduct violated ESA § 9 and that the Central Delta Parties' CVPIA affirmative defense was invalid. Doc. 168. That decision also rejected Plaintiffs' theory that proof of reasonably certain threat of imminent harm to a single member of any of the Listed Species was sufficient to establish a Section 9 violation in this case. Id. at 6-18.
Over a period of more than two months, Plaintiffs and State Defendants (collectively, "Moving Parties") engaged in arms-length settlement negotiations. Defendant-Intervenors claim to have been excluded from the negotiations until late in the process, after a tentative agreement had already been reached. Defendant-Intervenors declined to sign the settlement and made a counter-offer that was not adopted by the Moving Parties. The Moving Parties now move for the entry of a order approving their Settlement Agreement under the standards applicable to consent decrees. Doc. 230. Defendant-Intervenors object to approval. Docs. 233 & 234. Moving Parties filed a reply. Doc. 238. In response to the Court's request, Defendant Intervenors submitted proposed language concerning their participation in further a dministrative proceedings be3f ore D FG and in related regulatory proceedings. Doc. 248. State Defendant advocates the use of alternative language. Doc. 249. Plaintiffs joined State Defendant's request. Doc. 250.
The Moving Parties entered into a Settlement Agreement on February 9, 2011 that provides for the stay of this case subject to certain conditions to enable DFG to consider a new rule. First, State Defendant, in consultation with the National Marine Fisheries Service ("NMFS" or "NOAA Fisheries") and the U.S. Fish and Wildlife Service ("FWS"), is required to develop a "Regulatory Proposal" based on the best available scientific information, to be submitted to the California Fish and Game Commission ("Commission") with a recommendation that the Commission modify the striped bass sport fishing regulation to, among other things, modify the bag and size limits to "reduce striped bass predation on the listed species." Id. at ¶ 2(a). The Regulatory Proposal must also include an adaptive management plan designed to determine the effect of any changes in the regulations to striped bass abundance, striped bass predation on the listed species, mesopredator release, and abundance of the listed species. Id. at ¶ 2(b).
Within 30 days following approval of the Settlement Agreement, State Defendant shall solicit input and scientific information from Plaintiffs and Defendant-Intervenors. Id. at ¶ 3. State Defendant shall then circulate a draft Regulatory Proposal to Plaintiffs and Intervenors within 30 days of the last input meeting.
Id. at ¶ 4. Plaintiffs and Intervenors will have 10 days to provide written comments. Id. at ¶ 5. If Plaintiffs recommend modifications to the Regulatory Proposal, State Defendants then have 30 days to reach agreement on an alternative proposal. Id. at ¶ 6. If NMFS, FWS, or Plaintiffs object to the final Regulatory Proposal, the stay will be lifted and the Court will set a new pretrial and trial date. Id. at ¶ 7.
If State Defendants and Plaintiffs agree on the Regulatory Proposal, State Defendants shall circulate a draft staff report in support of the Regulatory Proposal within fifteen (15) days of receipt of Plaintiffs' written proposal. If Plaintiffs object to the content of the report, the stay will be lifted, and the case shall proceed to trial. Id. at ¶ 8.
If Plaintiffs do not object to the drat staff report, State Defendant will recommend at the next public meeting of the Fish and Game Commission that the Commission adopt t he Regulatory Proposal. Id.5 at ¶ 9. A final staff report will accompany the recommendation. Id. The Settlement Agreement provides that the final draft report "shall not differ materially from the draft staff report." Id. If Plaintiffs believe the final staff report differs materially from the draft, Plaintiffs shall have 10 days to object, and State Defendants shall have 10 days to revise the report accordingly. Id. If the Plaintiffs still believe the final report differs materially from the draft report, the Moving Parties shall jointly request a determination from the Court whether the revisions constitute a material alternation. Id. If the Court finds a material alteration and State Defendants refuse to revise the report, Plaintiffs or State Defendants shall notify the Court, and the Court shall lift the stay. Id.
If there are no such objections and the Commission takes final action on the Final Regulatory Proposal (by approving, modifying and approving, or rejecting the amended regulation), Plaintiffs shall promptly take all necessary steps to dismiss their First Amended Complaint with prejudice. Id.
If the Commission does not take final action within twelve months and Plaintiffs believe State Defendant has not acted in good faith, Plaintiffs may petition the Court to lift the stay. Id. 6a t ¶ 1 1. If the Commission does not take final action within twenty-one months, the parties will provide notice to the Court, after which the Court shall lift the stay. State Defendant can seek an extension upon a showing of good cause. Id. at ¶ 12. The Court is not required to approve an extension.
Plaintiffs agree not to participate in or fund any lawsuit against State Defendant based on the same underlying facts and legal theories. Id. at ¶ 14.
The Settlement Agreement also contains the following confidentiality provisions:
State Defendants, Intervenors, and Plaintiffs agree that all documents, oral statements, and other communications rendered as part of settlement discussions (1) are confidential and shall not be made publicly available prior to the submission of the Final Regulatory Proposal to the Commission except as otherwise required by law and (2) are no longer confidential following submission of the Final Regulatory Proposal to the Commission except as otherwise required by law. Failure to agree to the confidentiality requirement set forth in this paragraph shall preclude the party that declines to agree with the confidentiality requirement from participating in the meetings described in paragraph 3, from receiving or commenting on the draft Regulatory Proposal described in paragraphs 4 or 5 or any modification of the draft Regulatory Proposal, or receiving the draft staff report described in paragraph 8. Id. at ¶ 16 (emphasis added). As Defendant-Intervenors refused to sign the Settlement Agreement, they will not be included in any of the scoping meetings described in paragraph 3, nor will they receive or be able to comment upon the draft Regulatory Proposal and/or draft staff report. The settlement agreement does not preclude Defendant-Intervenors from otherwise participating in the regulatory process as permitted by state law.
The Settlement Agreement provides that State Defendant will set aside $1,000,000.00 to support research projects regarding predation on listed species in the Delta. One or more research projects will be selected by an "independent scientific review panel" composed of: Marty Gingras, Charles Hanson, Dennis Murphy, Pat Coulston, and a fifth member to be determined jointly by Plaintiffs and the State Defendants. Id. at ¶17.
"The initial decision to approve or reject a settlement proposal is committed to the sound discretion of the trial judge." S.E.C. v. Randolph, 736 F.2d 525, 529 (9th Cir. 1984)(quoting Officers for Justice v. Civil Serv. Comm'n, 688 F.2d 615, 625 (9th Cir. 1982)). "This discretion is not unbridled, however. Unless a consent decree is unfair, inadequate, or unreasonable, it ought to be approved." Id.; see also Sierra Club, Inc. v. Electronic Controls Design, Inc., 909 F.2d 1350, 1355 (9th Cir. 1990) ("[A] district court should enter a proposed consent judgment if the court decides that it is fair, reasonable and equitable and does not violate the law or public policy."). The Moving ...