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Delta Smelt Partially v. Salazar

June 24, 2011

DELTA SMELT PARTIALLY
SAN LUIS & DELTA-MENDOTA WATER AUTHORITY, ET AL.
v.
SALAZAR, ET AL.
STATE WATER CONTRACTORS
v.
SALAZAR, ET AL.
DELTA, ET AL.
v.
UNITED STATES FISH AND WILDLIFE SERVICE, ET AL.
METROPOLITAN WATER DISTRICT
v.
UNITED STATES FISH AND WILDLIFE SERVICE, ET AL. STEWART & JASPER ORCHARDS, ET AL.
v.
UNITED STATES FISH AND WILDLIFE SERVICE
FAMILY FARM ALLIANCE
v.
SALAZAR, ET AL.



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

1:09-CV-01201-OWW-DLB; 1:09-cv-00892-OWW-DLB; 1:09-cv-00407 OWW DLB ; 1:09-cv-00480-OWW-GSA ; 1:09-cv- 00422-OWW-GSA ; 1:09-cv-00631-OWW-DLB.

CONSOLIDATED CASES MEMORANDUM DECISION RE JURISDICTION TO CONSIDER PLAINTIFFS‟ INJUNCTIVE RELIEF PETITION RE FALL X2 ACTION. COALITION FOR A SUSTAINABLE

I.INTRODUCTION

A December 27, 2010 Order on Plaintiffs‟ Motions for Summary Judgment found that Federal Defendants violated the Endangered Species Act ("ESA") and the Administrative Procedure Act ("APA"), and that the 2008 Delta Smelt Biological Opinion ("BiOp") for the coordinated operations of the Central Valley Project ("CVP") and State Water Project ("SWP") and its Reasonable and Prudent Alternative ("RPA") are "arbitrary, capricious, and unlawful."

The BiOp was remanded without vacatur to the United States Fish and Wildlife Service ("FWS"), with an express reservation of jurisdiction, for further consideration "in accordance with this decision and the requirements of law." Doc. 763. A December 2, 2009 Order found "that [the United States Bureau of] Reclamation violated [the National Environmental Policy Act ("NEPA")] by failing to perform any NEPA analysis prior to provisionally adopting and implementing the 2008 BiOp and its reasonable and prudent alternative." Doc. 457.

Final Judgment was entered March 28, 2011 and amended May 17, 2011. Doc. 884. The Amended Judgment states that the district court "expressly retains jurisdiction during the period of remand, to the extent permitted by law, in the event issues arise concerning project operations." Doc. 884, ¶ I. On April 7, 2011, Defendant-Intervenors filed a notice of appeal. Doc. 853. Federal Defendants have not appealed.

Plaintiffs have noticed a motion for injunctive relief against Federal Defendants‟ implementation of RPA Component 3 (Action 4), also referenced as the "Fall X2 Action," which requires the Projects to be operated to maintain X2*fn1 during the fall months at a location no greater than 74 km upstream from the Golden Gate Bridge following wet water years, and no greater than 81 km upstream following above normal water years. BiOp at 282-283. This is a wet year and Plaintiffs estimate implementation of the Fall X2 Action will require use of approximately 1,000,000 acre-feet of water. See Doc. 920 at 7. Defendants now maintain that the district court does not retain jurisdiction to address the requested injunctive relief. Doc. 909.

II.PREVIOUS RULINGS RE FALL X2 ACTION

A December 14, 2010 Memorandum Decision Re Cross Motions for Summary Judgment ("12/14/2010 MSJ Decision"), Doc. 757, rejected some of Plaintiffs‟ challenges to the BiOp‟s rationale for the Fall X2 action, but found that the BiOp‟s X2 analysis was flawed in two critical respects. The rationale for the action rests in large part on a comparison of runs from two different computer models for Project operations, Calsim II and Dayflow. The Decision found that, in the absence of calibration of the two models, which was not performed, "the Calsim II to Dayflow comparison has the potential to introduce significant, if not overwhelming, bias to the analysis that the BiOp nowhere discussed or corrected." 12/14/2010 MSJ Decision at 125-26. The X2 action was remanded to the agency for further consideration of the implications of this error to the BiOp‟s findings. Id . at 220.

The Decision further held that the BiOp violated the APA‟s requirement that FWS "examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made," Motor Vehicle Mfrs. Ass‟n v. State Farm Mutual Auto. Ins. Co ., 463 U.S. 29, 43 (1983), as well as FWS‟s own Consultation Handbook implementing the ESA, which requires "a thorough explanation of how each component of the [RPA] is essential to avoid jeopardy and/or adverse modification," ESA Handbook at 4-43, because the BiOp "fail[ed] to explain why it is essential to maintain X2 at 74 km and 81 km respectively, as opposed to any other specific location." 12/14/2010 MSJ Decision at 126-27. The practical result of the X2 Action is to allow large volumes of Project water to escape into the ocean.

III.DISCUSSION

Natural Resources Defense Council v. Southwest Marine Inc., 242 F.3d 1163, 1164 (9th Cir. 2001), provides the governing standard. In Southwest Marine , a marine repair and maintenance company challenged the district court‟s modification of an injunction while an appeal was pending. After trial, the district court found Southwest Marine violated the Clean Water Act and imposed an injunction as a civil penalty that included water testing and storm water recapture requirements. Id . at 1165. The district court simultaneously issued a limited stay of enforcement of the water testing and pier storm water recapture requirements, asking for further argument and briefing on: (1) whether the district court should substitute testing of the surface "microlayer" for testing "at the surface," and (2) possible engineering alternatives to pier storm water recapture. Id . The district court eventually received further briefing and held a hearing, but not until after Southwest Marine appealed the original judgment, including the injunction. After the hearing, the district court modified the injunction by substituting: (1) testing of the surface "microlayer" for testing "at the surface," and (2) an 18-month deadline for the requirement of "reasonably expeditious" construction of a facility to capture pier storm water runoff. Southwest Marine later appealed the district court‟s jurisdiction to modify the injunction. Id . at 1165-66.

The Ninth Circuit reviewed the general legal framework:

Once a notice of appeal is filed, the district court is divested of jurisdiction over the matters being appealed. Griggs v. Provident Consumer Discount Co ., 459 U.S. 56, 58 (1982) (per curiam); McClatchy Newspapers v. Central Valley Typographical Union No. 46 , 686 F.2d 731, 734 (9th Cir. 1982). This rule is judge-made; its purpose is to promote judicial economy and avoid the confusion that would ensue from having the same issues before two courts simultaneously. Masalosalo v. Stonewall Ins. Co. , 718 F.2d 955, 956 (9th Cir. 1983); 20 James Wm. Moore, Moore's Federal Practice, § 303.32[1] (3d ed. 2000). The principle of exclusive appellate jurisdiction is not, however, absolute. Masalosalo , 718 F.2d at 956; 20 Moore's § 303.32[2][b]. The district court retains jurisdiction during the pendency of an appeal to act to preserve the status quo. Newton ...


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