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The Consolidated Delta Smelt Cases

April 9, 2013

THE CONSOLIDATED DELTA SMELT CASES
THE CONSOLIDATED SALMONID CASES



The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

MEMORANDUM DECISION AND ORDER RE MOTION TO EXTEND REMAND SCHEDULE (Doc. 1080)

MEMORANDUM DECISION AND ORDER RE MOTION TO EXTEND REMAND SCHEDULE (Doc. 703).

I.INTRODUCTION

The final amended judgment in the Consolidated Delta Smelt Cases requires the U.S. Bureau of Reclamation ("Reclamation") and the U.S. Fish and Wildlife Service ("FWS") to complete a revised Biological Opinion ("BiOp") under the Endangered Species Act ("ESA") regarding the impact of proposed operation of the Central Valley Project ("CVP") and State Water Project ("SWP") on the threatened delta smelt, as well as to conduct certain related analyses under the National Environmental Policy Act ("NEPA"), by December 1, 2013. 1:09-cv-00407 ("Smelt") Doc. 884. The final judgment in the Consolidated Salmonid Cases requires Reclamation and the National Marine Fisheries Service ("NMFS") to complete a BiOp analyzing the impact of CVP and SWP operations on five aquatic species, including three salmonid species, and a related NEPA analyses, in accordance with a schedule that calls for issuance of a Record of Decision by Reclamation by April 29, 2016. 1:09-cv-01053 ("Salmonid") Doc. 655. The schedules embodied in these judgments were modeled largely after schedules suggested by Federal Defendants, over numerous objections to the length of the remand period. Smelt Doc. 877-1; Salmonid Doc. 653.

Federal Defendants from these two sets of consolidated actions, as well as Plaintiff Intervenor in both cases, the California Department of Water Resources ("DWR"), (collectively, "Movants") jointly move to extend the respective remand schedules by three additional years. Smelt Doc. 1090; Salmonid Doc. 713. Defendant-Intervenors objected. Smelt Doc. 1092; Salmonid Doc. 722. After reviewing the initial pleadings, the Court concluded that Movants had not yet met their burden under Fed. R. Civ. P. 60(b), which governs amendment of the judgments in question. Smelt Doc. 1098; Salmonid Doc. 728.

Upon the Court's invitation and pursuant to a stipulated two-week continuance, Movants filed supplemental support for the requested extension on March 15, 2013. Smelt Doc. 1101; Salmonid Doc. 731. Various Plaintiffs filed statements of non-opposition, Smelt Doc. 1103 (Metropolitan Water District of Southern California, State Water Contractors, Kern County Water Agency, and Coalition for a Sustainable Delta), Salmonid Doc. 733 (same), or joinders, Smelt Doc. 1104 (San Luis & Delta Mendota Water Authority, Westlands Water District, Family Farm Alliance), Salmonid Docs. 734 (same) & 735 (Oakdale Irrigation District, South San Joaquin Irrigation District, Stockton East Water District). Defendant-Intervenors filed a supplemental opposition. Smelt Doc. 1105 (San Luis & Delta Mendota Water Authority, Westlands Water District, Family Farm Alliance), Salmonid Doc. 738.

Having considered all of the relevant submissions, the Court concludes that the issues are well defined and that oral argument is not necessary. The matter is therefore decided on the papers pursuant to Local Rule 230(g) and the following decision rendered.

II.DISCUSSION

A.Legal Standard.

Fed. R. Civ. P. 60(b) provides:

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief.

In their initial pleadings, Movants relied on Rule 60(b)(5), asserting application of the respective judgment "prospectively is no longer equitable." Smelt Doc. 1095 at 9-10; Salmonid Doc. 726 at 7. A party invoking Rule 60(b)(5) must satisfy a two-prong standard. United States v. Asarco, Inc., 430 F.3d 972, 979 (9th Cir. 2005) (citing Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992)). First, "[t]he moving party must satisfy an initial burden of showing a significant change either in factual conditions or in the law warranting modification of the [judgment]." Id. (citing Rufo, 502 U.S. at 384). Next, "the proposed modification [must be] suitably tailored to resolve the problems created by the changed factual or legal conditions." Id. (citing Rufo, 502 U.S. at 391). If the movant can point to "significantly changed factual conditions, . it must additionally show that the changed conditions make compliance with the [judgment] 'more onerous,' 'unworkable,' or 'detrimental to the public interest.'" Id. (citing Small v. Hunt, 98 F.3d 789, 795 (4th Cir. 1996) and quoting Rufo, 502 U.S. at 384).*fn1

In their supplemental brief, Federal Defendants cite Federal Power Commission v. Transcontinental Gas Pipe Line Corporation, 423 U.S. 326, 333 (1976), for the proposition that where a federal administrative agency seeks to define "the methods, procedures, and time dimension of the needed inquiry" on remand, the agency retains discretion to determine how it "may best proceed to develop the needed evidence and how its prior decision should be modified in light of such evidence as develops." The Supreme Court's reasoning in Transcontinental ...


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