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San Joaquin River Group Authority v. National Marine Fisheries Service

July 5, 2011

SAN JOAQUIN RIVER GROUP AUTHORITY,
PLAINTIFF,
v.
NATIONAL MARINE FISHERIES SERVICE,
DEFENDANTS.



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

MEMORANDUM DECISION RE CENTRAL DELTA WATER AGENCY, ET AL.‟S MOTION TO INTERVENE (Doc. 27)

I.INTRODUCTION/BACKGROUND

This suit arises from the United States Pacific Fisheries Management Council‟s ("PFMC") April 13, 2011 adoption of commercial troll and recreational fishing management measures for the waters south of Cape Falcon, permitting commercial and recreational fishing for Sacramento River fall-run Chinook Salmon ("SRFC") for the 2011 fishing season ("2011 management measures"), and the National Marine Fisheries Service‟s ("NMFS") May 4, 2011 approval of the PFMCs recommended 2011 fishing regulations. Doc. 1.

Central Delta Water Agency, South Delta Water Agency, Honker Cut Marine, Inc., Rudy Mussi, and Roubert Souza (collectively "Applicants") move for leave to intervene in this case as of right pursuant to Federal Rule of Civil Procedure 24(a), or in the alternative to permissively intervene under Rule 24(b). Doc. 19, filed June 10, 2010. Federal Defendants take no position on the motion, provided the intervention will not affect the page limits available to Federal Defendants for any briefing in this matter. Doc. 29. Plaintiff opposes. Doc. 30. Applicants replied. Doc. 43.

II.BACKGROUND

A.Claims in this Case.

Plaintiff, a coalition of irrigation districts holding water

rights in the San Joaquin River or one of its tributaries, assert that Federal Defendants‟ adoption of the 2011 management measures violates the Administrative Procedure Act ("APA"), Magnuson-Stevens Fishery Conservation and Management Act ("Magnuson Act"), and National Environmental Policy Act ("NEPA"), by among other things approving "high levels" of Sacramento River Fall Run Chinook salmon harvest, even though "overfishing" concerns allegedly continue relative to the abundance of the species. Id .

B.The Applicants.

1. Central Delta Water Agency.

The Central Delta Water Agency ("Central Delta") is a political subdivision of the State of California, created by the California Legislature in 1973. Mussi Decl., Doc. 27-5, ¶ 18. Central Delta‟s territory includes approximately 125,000 acres of land and associated waterways located entirely within the boundaries of the Delta, as defined by Section 12220 of the California Water Code, in the County of San Joaquin. Although Central Delta‟s lands are devoted primarily to agriculture, its lands have other uses, including for commercial, navigation, transportation, residential, recreational, and habitat purposes. Id . ¶ 21.

A Central Delta Director and Co-Plaintiff, Rudy Mussi, explains that that Central Delta has a long-standing interest in Delta water quality because "[g]ood quality water is necessary for all of the uses of the waters within the Delta including farming, recreation, and wildlife use." Mussi Decl., 27-5, ¶ 28.

2. South Delta Water Agency.

Like Central Delta, South Delta is a political subdivision of the State of California, created by the Legislature in 1973. Robinson Decl., Doc. 27-3, ¶ 19. South Delta includes approximately 148,000 acres of land and associated waterways located entirely within the boundaries of the Delta, in the County of San Joaquin. Id . South Delta‟s lands are also principally devoted to agriculture, but other uses include commercial, navigation, transportation, residential, recreational, and habitat purposes. South Delta is also empowered to undertake "any lawful act necessary in order that a sufficient in-channel water supply of suitable quality may be available for any present or future beneficial use or uses of the lands within the agency." Cal. Water Code App. §§ 116-4.1, 116- 4.2(b).

3. Honker Cut Marine, Inc.

Honker Cut Marine, Inc. ("Honker Cut"), is a California Corporation, owned and operated since 1986 as a marine business on King Island in San Joaquin County, on Honker Cut (a Delta waterway). Karnofel Decl., Doc. 27-4, ¶¶ 3-4. Honker Cut owns the real property on which it operates, which is situated on Honker Cut. Id . ¶ 3. The business sells, services, stores, maintains, and launches boats used in the Delta for, among other things, recreational fishing. Id . ¶¶ 4, 7.

4. Robert Souza, Sr.

Robert Souza, Sr. is an avid angler residing in Stockton, California. Souza Decl., Doc. 27-6, ¶¶ 1, 4-5. He regularly visits the Delta to fish for striped bass. Id . ¶ 6. Mr. Souza is keenly interested in the conservation of striped bass in the Delta, for educational, moral, spiritual, aesthetic, and recreational reasons, and asserts the belief that "it is unethical to kill salmon, steelhead, and striped bass in the Delta." Id . ¶¶ 6.

Mr. Souza characterizes his interest in this litigation as follows:

The plaintiff‟s lawsuit claims that its "member agencies are injured by the failure" to comply with Magnuson-Stevens "because their water rights, water supply and water supply facilities and all of its electrical generation, recreation, and flood control facilities depend on or are located on the San Joaquin River and its tributaries, which is occupied by" Sacramento River fall-run Chinook salmon, and "[a]s holders of the major non-federal and non-State water rights in the San Joaquin River basin, SJRGA member agencies are responsible for abundance of" Sacramento River fall-run Chinook salmon. Complaint for Declaratory Relief and Injunctive Relief, para. 16-17. SJRGA‟s member agencies claim water rights upstream of the Delta, and their use and exercise of their alleged rights impacts Delta water quality. If SJRGA‟s member agencies in fact claim that they have a responsibility for Sacramento River fall-run Chinook salmon and that their water use operations are influenced by the abundance of such salmon, than [sic] Delta water quality is also influenced by the abundance of such salmon, and I personally am interested in SRFC abundance.

Id. ¶ 17.

5. Rudy Mussi.

Rudy Mussi is a director of Central Delta Water Agency and a farmer within Central Delta. Mussi Decl. ¶1. He has lived his entire life in the Delta and depends on the San Joaquin River for water used on his farm. Id . ¶6. He and his family also use the Delta for recreational purposes, including fishing. Id . at ¶7. Mr. Mussi has a long-standing and deeply-held personal interest in the conservation of the Delta and its species. Id . at ¶¶ 8-10.

As a director of Central Delta for the past 19 years, he has spent "countless hours of his own time working on a multitude of issues relating to the health of the Delta ecosystem," and professes to "experience great happiness with the understanding I am working toward a healthy Delta that will support all fish and wildlife species, including salmon, steelhead, striped bass, black bass, and delta smelt, as well as birds and other wildlife." Id . ΒΆΒΆ 11-12. Mr. Mussi states that "[t]he precipitous declines in all fish populations in past decades ...


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