Eastern District of California Blog

Ninth Circuit Salmonid Opinion Out This Morning

This 80-page opinion is way too complicated and above my pay scale to give you any decent summary or my view of the decision, but I love a decision that starts out by quoting Steinbeck's East of Eden and includes multiple color maps of the Delta region (which largely mirrors the EDCA borders).  Fresno Bee, 12/22/14

Here's an excerpt from Chief Judge Tallman's opinion:

    This case is about the competing demands for these limited water resources. In 2006 the Department of Interior’s Bureau of Reclamation (“Reclamation”), the federal agency that oversees water resources in the West, asked the Commerce Department’s National Marine Fisheries Service (“NMFS”) to evaluate under the Endangered Species Act (“ESA”) the impact of continuing water extraction in the Central Valley on certain threatened and endangered Salmonid species that live there. In response, NMFS developed a Biological Opinion (“BiOp”) in which it determined that Reclamation’s proposed project would jeopardize some of the Delta’s endangered Salmonids. See generally 2009 Salmonid BiOp at 574–75. To remedy this problem, NMFS required Reclamation to change the way it pumps water out of the Valley’s rivers. See id. at ch. 11. A number of groups that depend on the Central Valley’s water sued to halt this change. On summary judgment, the district court found that NMFS had violated the Administrative Procedure Act’s (“APA”) arbitrary or capricious standard when developing much of the BiOp. See generally In re Consolidated Salmonid Cases, 791 F. Supp. 2d 802, 955–59 (E.D. Cal. 2011); 5 U.S.C. § 706(2)(a) (2012). Defendants—joined by environmental groups—appealed, and once again we enter the fray. 

    We hold that the district court did not give NMFS the substantial deference it is due under the APA. On independent record review, we find that the components of the BiOp invalidated by the district court are reasonable and supported by the record. As a result, we uphold the BiOp in its entirety. We, therefore, REVERSE and REMAND for entry of summary judgment in favor of Defendants.

Valley Farmers Seek Supreme Court Review In EDCA Delta Smelt Case

San Joaquin Valley growers Wednesday filed an appeal with the U.S. Supreme Court, hoping to reverse an appellate court’s rejection of their claim that flawed science was used to cut back water pumping in Northern California.

The case already has been through U.S. District Court in Fresno, which sided with growers in a decision that would have forced federal leaders to rewrite 2008 protections for the threatened delta smelt.

Fresno Bee, 10/1/14

EDCA Court Denies Request From Environmental & Fishing Groups To Stop Water Transfers

Today's Sacramento News & Review comments on the latest EDCA ruling [here] denying a preliminary injunction sought by environmental and fishing groups to halt water transfers from Northern California to San Joaquin Valley irrigators.  See also Cal Sport and Indybay.

En Banc Ninth Circuit Reverses EDCA Court 11-0 In Delta Smelt Case

In NRDC v. Salazar, No. 09-17661, the Ninth Circuit, sitting en banc, unanimously reversed two of former Judge Wanger's rulings in the delta smelt cases. Here's the start of the (unofficial) summary at the beginning of the opinion:

The en banc court reversed the district court's judgment in favor of federal defendants in an action brought by environmental groups concerning long-term water contracts the federal Bureau of Reclamation entered pertaining to California’s Central Valley Project, the threatened delta smelt, and the requirement under Section 7(a)(2) of the Endangered Species Act that federal agencies must consult with the United States Fish and Wildlife Service or the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service prior to taking any agency action that could affect an endangered or threatened species or its critical habitat.

More coverage: NRDC press release; KCCP 80.3 Blog; and Fresno Bee.

Ninth Circuit Upholds Plan To Protect Delta Smelt

A federal appeals court in San Francisco on Thursday upheld the science used in fish protection plans that sometimes cut back water pumping for San Joaquin Valley farmers and Southern California cities.  [Opinion available here]

The Ninth Circuit Court of Appeals decision overturned a 2010 lower court ruling from Fresno, which had held that protections for the delta smelt in the Sacramento-San Joaquin River Delta were not supported in science.

The decision in Fresno would have forced a rewrite of 2008 protections for the threatened smelt, but there were no assurances that more water would have been made available.

The Natural Resources Defense Council and the Bay Institute had appealed the Fresno ruling from U.S. District Judge Oliver W. Wanger. On Thursday, environmentalists applauded the appeals court.

"The decision today rejects the notion that water interests can buy a lot of scientific help to go over every fly speck of the science," said lawyer Trent Orr of legal watchdog Earthjustice, which represented the environmental groups. "The smelt protections should be judged on their merits and the science in the record."

Fresno Bee, 3/13/14

Ninth Circuit To Hear NRDC v. Salazar En Banc

On Tuesday, the Ninth Circuit granted rehearing en banc in NRDC v. Salazar, 09-17661, one of the Delta Smelt cases out of Fresno.  Not my area of expertise, but here are links to other blogs with their take on the en banc order:  Environmental Appeals Court, Legal Planet and PLF.

 

EDCA Court Rejects Government's Smelt, Salmon Plans

Here's the lede from yesterday's Fresno Bee story on Judge O'Neill's recent Delta Smelt case ruling (still seems strange to see a Delta Smelt decision from anyone other than former Judge Wagner):

A federal judge in Fresno on Wednesday declined to give federal officials more time to update a plan that protects threatened delta smelt and endangered salmon species in the Sacramento-San Joaquin Delta.

The U.S. Bureau of Reclamation and the U.S. Fish and Wildlife Service are working to complete a revised delta smelt plan -- known as a biological opinion -- by Dec. 1, and the bureau and National Marine Fisheries Service are working on a similar update for five salmon species with an April 2016 deadline.

Both plans look at how delta pumping affects the fish.

The agencies had asked for three additional years to finish the updates.

But in an eight-page decision, U.S. District Judge Lawrence J. O'Neill didn't reject the motion outright -- though he said that was his preference. Instead, he gave the federal agencies the option of submitting additional details on a collaborative science and management plan that would include all the various agencies, water users and environmental groups in the updating process.

Report Largely Backs Interior Dept. Scientists In Federal Water Lawsuit

Two government biologists who were assailed by then-U.S. District Judge Oliver Wanger last fall over their testimony in a water lawsuit did not violate professional standards or use bad science, according to a report released by a panel of scientists.

Wanger, however, said the report vindicates his criticism of the Interior Department biologists because it also noted their testimony had inconsistencies and inadequacies.

"I was focused on the truthfulness of their statements," Wanger said Friday. "This confirms the inconsistency that I found in their testimony."

* * *

In the report released Thursday, a panel contracted by the U.S. Department of the Interior found no evidence of deliberate falsehood or personal opinion in the testimony of Norris and Feyrer.

The panel did find their testimony contained minor inconsistencies and inadequacies. It also found that it was not clear from the record exactly how the biologists reached the conclusions they did.

"We suspect that this failure to provide clear and convincing explanation, more than any other issue, may have led Judge Wanger to reach his conclusions alleging lack of candor and integrity," the report said.

Fresno Bee, 1/7/12

Supreme Court Denies Cert Review Of PLF Commerce Clause Challenge In Delta Smelt Case

The U.S. Supreme Court on Monday refused to take on a case challenging federal rules allocating water in the Sacramento-San Joaquin Delta to save the Delta smelt, a minnow-like fish on the edge of extinction.

Pacific Legal Foundation had tried to get the nation’s highest court to hear their arguments against a 9th U.S. Circuit Court of Appeals decision that had upheld restrictions on pumping of Delta water to farmers and other users south of the Delta in the San Joaquin Valley and Southern California.

PLF contends the appellate court’s decision is an abuse of federal power in violation of the Commerce Clause of the U.S. Constitution that gives Congress exclusive power over trade activities among the states and with foreign countries and Indian tribes.

Central Valley Business Times, 10/31/11

Salmon Numbers Rising In Sacramento-San Joaquin Delta

Positive signs this year include good salmon returns to the Mokelumne River largely due to a 10-day closure of Delta diversion gates from 4-14 October; salmon counts in the Feather River, the Sacramento River's largest tributary, already higher than 2010’s; and a rise in the highly endangered Delta smelt population, indicating that better water management may have hindered the Delta-estuary ecosystem's rapid decline.

"In the middle of the economic recession facing the whole nation, we've got many of our salmon industry jobs back this year, and for that we're thankful this year," said GGSA President Victor Gonella.

These are mostly the result of factors including key court rulings in 2008 and 2009 won by Earthjustice and Natural Resources Defense Council attorneys representing GGSA member group Pacific Coast Federation of Fishermen's Associations (PCFFA), and other salmon advocates.
After devastating the Delta and fish species by taking too much water, water managers were forced under court order to cut their diversions. In 2009 and 2010, new and improved federal rules limiting diversions were adopted.

"These science-based, common-sense Delta protections are starting to work," said GGSA director and Pro Troll tackle owner Dick Pool. "It's absolutely vital that we keep these protections in place to allow the rebuilding of our salmon runs and the return of the tens of thousands of jobs our industry supports."

FIS, 10/19/11