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San Luis & Delta-Mendota Water Auth. v. Jewell

United States District Court, E.D. California

October 1, 2014

SAN LUIS & DELTA-MENDOTA WATER AUTHORITY and WESTLANDS WATER DISTRICT, Plaintiffs,
v.
SALLY JEWELL, as Secretary of the U.S. Department of the Interior; U.S. DEPARTMENT OF THE INTERIOR; U.S. BUREAU OF RECLAMATION; MICHAEL L. CONNOR, as Commissioner, Bureau of Reclamation, U.S. Department of the Interior; and DAVID MURRILLO, as Regional Director, Mid-Pacific Region, Bureau of Reclamation, U.S. Department of the Interior, Defendants, THE HOOPA VALLEY TRIBE; THE YUROK TRIBE; PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS; and INSTITUTE FOR FISHERIES RESOURCES, Defendant-Intervenors

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For San Luis & Delta-Mendota Water Authority, Plaintiff: Eric Nelson Robinson, Rebecca Rose Akroyd, LEAD ATTORNEYS, Daniel Joseph O'Hanlon, Kronick, Moskovitz, Tiedemann & Girard, Sacramento, CA; Geoffrey M. Williamson, PHV, Michelle C. Kales, PHV, Steven O. Sims, LEAD ATTORNEYS, PRO HAC VICE, Brownstein Hyatt Farber Schreck LLP, Denver, CO.

For Westlands Water District, Plaintiff: Dulcinea Z. Hanuschak, PHV, Geoffrey M. Williamson, PHV, Michelle C. Kales, PHV, Steven O. Sims, PHV, LEAD ATTORNEYS, PRO HAC VICE, Brownstein Hyatt Farber Schreck, LLP, Denver, CO; Eric Nelson Robinson, LEAD ATTORNEY, Daniel Joseph O'Hanlon, Kronick, Moskovitz, Tiedemann & Girard, Sacramento, CA; Rebecca Rose Akroyd, LEAD ATTORNEY, Elizabeth Louise Leeper, Kronick Moskovitz Tiedemann & Girard, Sacramento, CA.

For Sally Jewell, as Secretary of the U.S. Department of the Interior, U.S. Department of the Interior, U.S. Bureau of Reclamation, Michael L. Connor, as Commissioner, Bureau of Reclamation, U.S. Department of the Interior, David Murrillo, as Regional Director, Mid-Pacific Region, Bureau of Reclamation, U.S. Department of the Interior, Defendants: Anna K. Stimmel, GOVT, LEAD ATTORNEY, U.S. Department of Justice, Washington, DC; Sara Christi Porsia, GOVT, LEAD ATTORNEY, U.S. Department of Justice, ENRD, Washington, DC; Bradley H. Oliphant, U.S. Department Of Justice, Env. & Natural Resources Division, Denver, CO.

For Hoopa Valley Tribe, Defendant: Patricia A. Prochaska, LEAD ATTORNEY, Attorney at Law, Oakland, CA; Thomas P. Schlosser, LEAD ATTORNEY, Morisset Schlosser Jozwiak & Somerville, Seattle, WA.

For Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, Intervenor Defendants: Jan Hasselman, PHV, LEAD ATTORNEY, Earthjustice, Seattle, WA; Trent William Orr, LEAD ATTORNEY, Earthjustice, San Francisco, CA.

For Yurok Tribe, Intervenor Defendant: John William Corbett, LEAD ATTORNEY, Nathan Markus Voegeli, Office of the Tribal Attorney, Yurok Tribe, Klamath, CA.

For California Department of Fish and Wildlife, Amicus: Clifford Thomas Lee, LEAD ATTORNEY, California Attorney General's Office, Department of Justice, San Francisco, CA.

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MEMORANDUM DECISION AND ORDER RE CROSS MOTIONS FOR SUMMARY JUDGMENT (Docs. 112 & 120)

Lawrence J. O'Neill, United States District Judge.

I. INTRODUCTION

This case concerns the U.S. Bureau of Reclamation's (" Reclamation" or " the Bureau" ) decision to make certain " Flow Augmentation" releases (" FARs" ) of water beginning on August 13, 2013 from Lewiston Dam, a feature of the Trinity River Division (" TRD" ) of the Central Valley Project (" CVP" ). The stated purpose of the releases was to " reduce the likelihood, and potentially reduce the severity, of any Ich epizootic event that could lead to associated fish die off in 2013" in the lower

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Klamath River. Administrative Record (" AR" ) at 00016-17. Plaintiffs, the San Luis & Delta Mendota Water Authority (" Authority" ) and Westlands Water District (" Westlands" ), allege that by approving and implementing the 2013 FARs, Reclamation and its parent agency, the U.S. Department of the Interior (" Interior" )[1] (collectively, " Federal Defendants" ), violated various provisions of the Central Valley Project Improvement Act (" CVPIA" ), Pub. L. No. 102-575, 106 Stat. 4600 (1992), and the Reclamation Act of 1902, 43 U.S.C. § 383. Doc. 95, First Amended Complaint (" FAC" ) at ¶ ¶ 77-91. In addition, Plaintiffs allege Federal Defendants acted unlawfully by approving and implementing the 2013 FARs without first preparing an Environmental Impact Statement (" EIS" ) pursuant to the National Environmental Policy Act (" NEPA" ), 42 U.S.C. § 4321 et seq., or engaging in consultation pursuant to the Endangered Species Act (" ESA" ), 16 U.S.C. § § 1531 et seq. FAC ¶ ¶ 92-104.

Plaintiffs filed suit in this Court on August 7, 2013, Doc. 1, and on August 9, 2013 filed a motion for temporary restraining order and preliminary injunction. Doc. 14. The parties stipulated to and the Court approved the intervention of the Hoopa Valley Tribe (" the Hoopa" ), the Yurok Tribe (" the Yurok" ), and the Pacific Coast Federation of Fishermen's Associations and Institute for Fisheries Resources as defendants. Docs. 38 & 70.

On August 13, 2013, the Court issued a temporary restraining order, restraining and enjoining Federal Defendants from making releases from Lewiston Dam to the Trinity River in excess of 450 cubic feet per second (" cfs" ) for fishery purposes through and including August 16, 2013. Doc. 57. Following a preliminary injunction hearing on August 21-22, 2013, the Court lifted the temporary restraining order and denied the associated motion for preliminary injunction. Doc. 91.[2]

The FAC, filed October 4, 2013, alleges Federal Defendants violated: (1) CVPIA § 3406(b)(23) because, including the 2013 FARs, the total releases for fisheries purposes in 2013 exceeded the volume limit set in the Trinity River Record of Decision (" TRROD" ), which adopted a plan for restoring the Trinity River mainstem fisheries pursuant to CVPIA § 3406(b)(23); (2) CVPIA § 3411(a) and 43 U.S.C. § 383 because the 2013 FARs are a use of water outside the state permitted place of use; (3) NEPA by failing to prepare an EIS in connection with the 2013 FARs; and (4) the ESA by failing to engage in formal consultation prior to implementing the FARs. Doc. 95.

Federal Defendants filed the AR on December 20, 2013, Doc. 109, and supplemented the record on January 29, 2014. Doc. 110.

Before the Court for decision are cross motions for summary judgment on all of the claims asserted in the FAC. Docs. 112 & 120. The Court has thoroughly reviewed more than 250 pages of briefs, including

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eight pages of an amicus brief submitted by the California Department of Fish and Game (" CDFG" ), Docs. 122 & 124, along with thousands of pages of associated exhibits, attachments, and declarations.[3]

While the cross motions were still pending, Federal Defendants authorized yet another set of flow augmentation releases, which began on August 25, 2014 (" 2014 FARs" ). See Doc. 151. Plaintiffs filed a motion for a temporary restraining order and/or preliminary injunction against the 2014 FARs. Docs. 142-43. The Court, while indicating that Plaintiffs were likely to succeed on at least one claim, denied the motions for injunctive relief based upon an analysis of the balance of the harms. See Doc. 175.

II. STANDARD OF DECISION

All of the claims in this case arise under the Administrative Procedure Act (" APA" ), 5 U.S.C. § § 701-706, pursuant to which " [a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." Id. § 702.[4] Under the APA, a reviewing court shall " hold unlawful and set aside agency action, findings, and conclusions found to be" :

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
***
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; [and/or]
(D) without observance of procedure required by law[.]

Id. § 706(2)(A).

A reviewing court " must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated in part on other grounds as recognized in Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Although a court's inquiry must be thorough, the standard of review is highly deferential; the agency's decision is " entitled to a presumption of regularity," and a court may not substitute our judgment for that of the agency. Id. at 415-16.

Summary judgment is appropriate when the pleadings and the record demonstrate that " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A court conducting APA judicial review may not ...


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