San Luis & Delta-Mendota Water Authority et al v. Jewell et alMOTION for SUMMARY JUDGMENTE.D. Cal.September 15, 2016 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JOHN C. CRUDEN Assistant Attorney General U.S. Department of Justice Environment & Natural Resources Division ANNA K. STIMMEL, Trial Attorney Natural Resources Section 301 Howard Street, Suite 1050 San Francisco, California (415) 744-6480 (tel); (415) 744-6476 (fax) anna.stimmel@usdoj.gov BRADLEY H. OLIPHANT, Senior Trial Attorney Wildlife & Marine Resources Section 999 18th Street South Terrace, Suite 370 Denver, CO 80202 (303) 844-1381 (tel); (303) 844-1350 (fax) bradley.oliphant@usdoj.gov Attorneys for Federal Defendants UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA SAN LUIS & DELTA-MENDOTA WATER AUTHORITY, et al. Plaintiffs, v. SALLY JEWELL, et al., Defendants, THE HOOPA VALLEY TRIBE; et al., Defendant-Intervenors. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 1:15-cv-1290-LJO-EPG FEDERAL DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE Hearing Date: No hearing set Time: Location: Case 1:15-cv-01290-LJO-EPG Document 105 Filed 09/15/16 Page 1 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pursuant to Federal Rule of Civil Procedure 56, Federal Defendants, by and through undersigned counsel, hereby move for summary judgment. As discussed in detail in Federal Defendants’ accompanying Memorandum of Points and Authorities in Support of Their Motion for Summary Judgment and Opposition to Plaintiffs’ Motion for Summary Judgment, the Administrative Record demonstrates that Federal Defendants have complied with all of the requirements of law, and their decisions to release water from the Trinity and Lewiston Reservoirs to increase flows in the lower Klamath River between the middle of August and the end of September in both 2014 and 2015 in order to prevent a large scale fish die-off was not arbitrary, capricious, and abuse of discretion or otherwise not in accordance with law. Accordingly, Federal Defendants are entitled to summary judgment in their favor on all of Plaintiffs’ claims. Respectfully submitted this 15th of September 2016. JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division By: /s/ Anna K. Stimmel ANNA K. STIMMEL, Trial Attorney Natural Resources Section 301 Howard Street, Suite 1050 San Francisco, CA 94105 (415) 744-6480 BRADLEY H. OLIPHANT, Senior Trial Attorney Wildlife and Marine Resources Section 999 18th St., South Terrace, Ste. 370 Denver, CO 80202 (303) 844-1381 Attorneys for Federal Defendants Of Counsel: Stephen R. Palmer Assistant Regional Solicitor Office of the Regional Solicitor Department of the Interior 2800 Cottage Way, Room E-1712 Sacramento, CA 95825-1890 Case 1:15-cv-01290-LJO-EPG Document 105 Filed 09/15/16 Page 2 of 3 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Request for Judicial Notice 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I hereby certify that on this 15th of September 2016, I filed a copy of this document electronically through the CM/ECF system, which caused all parties or counsel to be served by electronic means as reflected on the Notice of Electronic Filing. /s/ Anna K. Stimmel ANNA K. STIMMEL Case 1:15-cv-01290-LJO-EPG Document 105 Filed 09/15/16 Page 3 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JOHN C. CRUDEN Assistant Attorney General U.S. Department of Justice Environment & Natural Resources Division ANNA K. STIMMEL, Trial Attorney Natural Resources Section 301 Howard Street, Suite 1050 San Francisco, California (415) 744-6480 (tel); (415) 744-6476 (fax) anna.stimmel@usdoj.gov BRADLEY H. OLIPHANT, Senior Trial Attorney Wildlife & Marine Resources Section 999 18th Street South Terrace, Suite 370 Denver, CO 80202 (303) 844-1381 (tel); (303) 844-1350 (fax) bradley.oliphant@usdoj.gov Attorneys for Federal Defendants UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA SAN LUIS & DELTA-MENDOTA WATER AUTHORITY; et al., Plaintiffs, v. SALLY JEWELL, et al., Defendants, THE HOOPA VALLEY TRIBE; et al., Defendant-Intervenors. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 1:15-cv-1290-LJO-EPG FEDERAL DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Hearing Date: No hearing set Time: Location: Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 1 of 62 i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS PAGE INTRODUCTION……………………………………………………………………………….. 1 LEGAL BACKGROUND……………………………………………………………………….. 1 I. National Environmental Policy Act ………………………………………………………1 II. Endangered Species Act ………………………………………………………………….3 III. Magnuson-Stevens Fishery Conservation and Management Act (“MSA”) ……………...5 FACTUAL AND PROCEDURAL BACKGROUND …………………………………………...7 I. The Central Valley Project and the Trinity River Division ………………………………7 II. Flow Augmentation Releases for the Benefit of Salmonids in the Lower Klamath River……………………………………………………………………………………...11 A. 2014 FARs …………………………………………………………………...….12 B. 2015 FARs…………………………………………………………………….... 13 C. The Long-Term Plan for future FARs …………………………………………..14 III. Relevant inter-agency consultation regarding Sacramento River, Central Valley, and Trinity River Salmonids…………………………………………………………………15 IV. Litigation related to the 2009 BiOp and RPA …………………………………………..17 STANDARD OF REVIEW ……………………………………………………………….…….17 ARGUMENT …………………………………………………………………………………....18 I. Plaintiffs’ procedural claims are moot …………………………………………………..18 A. Plaintiffs’ NEPA claims are moot …………………………………………….…19 B. Plaintiffs’ ESA and MSA claims are moot ……………………………….……..21 II. All of Plaintiffs’ claims should be dismissed under the doctrine of prudential mootness…………………………………………………………………………………22 III. If the Court does not dismiss Plaintiffs’ claims on the basis of mootness or prudential mootness, it should stay the litigation ………………………………………………..….24 IV. Reclamation has authorization to make the FARs ……………………………………....25 1. The 1955 Act ………………………………………………………………….....25 Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 2 of 62 ii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Proviso 2 of section 2 of the 1955 Act gives Reclamation the authority to make the flow augmentation releases. ………………………………………………...25 B. Proviso 1 of section 2 of the 1955 Act Provides Authority for the Releases………………………………………………………………………….29 C. The Trinity River Basin Fish and Wildlife Management Act of 1984 and Amendments ……………………………………………………………………31 D. The Fish and Wildlife Coordination Act ……………………………………….33 V. Reclamation did not violate Reclamation Law in making the 2015 FARs ……………..34 VI. Reclamation complied with NEPA with regard to the FARs …………………………...35 A. Reclamation complied with NEPA in making the 2014 FARs ………………….35 1. The unanticipated conditions that occurred in the lower Klamath River in August 2014 constituted an environmental emergency …………..……..36 2. Reclamation has complied and continues to comply with CEQ and DOI regulations governing NEPA compliance in an emergency …………….37 B. Reclamation complied with NEPA in making the 2015 FARs ………………….38 VII. Reclamation complied with its ESA and MSA obligations. …………………………….42 A. B. Plaintiffs’ ESA and MSA challenges to the 2014 FARs are meritless. …………42 Plaintiffs’ ESA and MSA challenges to the 2015 FARs are meritless. …………46 CONCLUSION ………………………………………………………………………………….53 Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 3 of 62 iii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES CASES PAGE A.L. Mechling Barge Lines, Inc. v. United States, 368 U.S. 324 (1961) .................................................................................................................. 24 Alpine Lakes Prot. Soc'y v. Schlapfer, 518 F.2d 1089 (9th Cir. 1975) .................................................................................................. 43 Am. Motorcyclist Ass'n v. Watt, 714 F.2d 962 (9th Cir. 1983) .................................................................................................... 43 Andrus v. Sierra Club, 442 U.S. 347 (1979) .................................................................................................................... 3 AquAlliance v. U.S. Bureau of Reclamation, No. 1:14-CV-000945-LJO-B, 2014 WL 3401390 (E.D. Cal. July 11, 2014) ............................. 7 Balt. Gas & Elec. v. Nat. Res. Def. Council, 462 U.S. 87 (1983) ...................................................................................................................... 2 Blake v. Arnett, 663 F.2d 906 (9th Cir. 1981) ...................................................................................................... 9 Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208 (9th Cir. 1998) .............................................................................................. 2, 39 Buckeye Forest Council v. U.S. Forest Serv., 378 F. Supp. 2d 835 (S.D. Ohio 2005) ................................................................................. 4, 47 Building and Const. Dept. v. Rockwell Intern. Corp., 7 F.3d 1487 (10th Cir. 1993) .................................................................................................... 23 California Trout, Inc. v. U.S. Bureau of Reclamation, 115 F. Supp. 3d 1102 (C.D. Cal. 2015) .................................................................................... 25 Chamber of Commerce of the U.S. of America v. U.S. Dept. of Energy, 627 F.2d 289 (D.C. Cir.1980) ................................................................................................... 23 Chisholm v. FCC, 538 F.2d 349 (D.C. Cir. 1976) .................................................................................................. 28 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) .................................................................................................................. 18 City of Erie v. Pap's A.M., 529 U.S. 277 (2000) .................................................................................................................. 19 Crosby v. Young, 512 F. Supp. 1363 (E.D. Mich. 1981) ......................................................................................... 2 Ctr. for Biological Diversity v. Lohn, 511 F.3d 960 (9th Cir. 2007) .................................................................................................... 19 Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 4 of 62 iv 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752 (2004) .................................................................................................................... 2 Deutsche Bank Nat. Trust Co. v. F.D.I.C., 744 F.3d 1124 (9th Cir. 2014) .................................................................................................. 23 Ecology Ctr. v. Wildwest Institute, 574 F.3d 652 (9th Cir. 2009) ...................................................................................................... 2 Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059 (9th Cir.), amended sub nom., 387 F.3d 968 (9th Cir. 2004) ........................... 53 Hoopa Valley Indian Tribe v. Ryan, 415 F.3d 986 (9th Cir. 2005) .................................................................................................... 11 Horstkoetter v. Dep’t of Pub. Safety, 159 F.3d 1265 (10th Cir. 1998) ................................................................................................ 24 In re Palmdale Hills Property, LLC, 654 F.3d 868 (9th Cir. 2011) .................................................................................................... 19 INS v. Ventura, 537 U.S. 12 (2002) .................................................................................................................... 21 Kramer v. Mosbacher, 878 F.2d 134 (4th Cir. 1989) ...................................................................................................... 5 Lamie v. United States, 540 U.S. 526 (2004) .................................................................................................................. 26 Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) .............................................................................................. 18, 52 Leyva v. Certified Grocers of Cal. Ltd., 593 F.2d 857 (9th Cir. 1979) ................................................................................................... 25 Los Alamos Study Grp. v. U.S. Dep’t of Energy, 794 F.Supp.2d 1216 (D.N.M. 2011) ......................................................................................... 24 Maldonado v. Lynch, 786 F.3d 1155 (9th Cir. 2015) .................................................................................................. 23 Marsh v. Or. Natural Res. Council, 490 U.S. 360 (1989) .................................................................................................... 1, 2, 19, 42 Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233 (9th Cir. 2005) .................................................................................................. 39 Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d 917 (9th Cir. 2008) ...................................................................................................... 3 Natural Resources Defense Council, Inc. v. Winter, 527 F. Supp. 2d 1216 (C.D. Cal. 2008) .................................................................................... 37 Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 5 of 62 v 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NWF v. NMFS, 2005 WL 2488447 (D. Or. Oct. 7, 2005) .................................................................................. 46 Oregon Nat. Res. Council v. Keys, No. CIV. 02-3080-CO, 2004 WL 1048168 (D. Or. May 7, 2004) ..................................... 23, 24 Pac. Nw. Generating Co-op. v. Brown, 822 F. Supp. 1479 (D.Or. 1993) ............................................................................................... 19 Parravano v. Babbitt, 70 F.3d 539 (9th Cir. 1995) ........................................................................................................ 9 Pinnacle Armor, Inc. v. United States, 648 F.3d 708 (9th Cir. 2011) .................................................................................................... 21 Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096 (10th Cir. 2010) ................................................................................................ 23 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) .......................................................................................................... 1, 3, 19 Rogers v. FDIC as Receiver for Downey Sav. and Loan, No. 09-cv-0419, 2011 WL 2433647 (E.D. Cal. June 11, 2011) ............................................... 24 S. Utah Wilderness All. v. Smith, 110 F.3d 724 (10th Cir. 1997) ............................................................................................ 23, 24 S. Yuba River Citizens League v. Nat’l Marine Fisheries Serv., No. 06-cv-2845, 2010 WL 4746187 (E.D. Cal. Nov. 16, 2010) .............................................. 24 Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220 (9th Cir. 2008) .................................................................................................... 4 San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581 (9th Cir. 2014) .......................................................................... 2, 7, 18, 40, 42, 47 San Luis & Delta–Mendota Water Auth. v. Jewell, 52 F. Supp. 3d 1020 (E.D. Cal. 2014) .................................. 7, 10, 19, 22, 27, 29, 30, 31, 32, 33 San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971 (9th Cir. 2014) ................................................................ 15, 16, 17, 44, 45, 46, 50 Save Our Ecosystems v. Clark, 747 F.2d 1240 (9th Cir. 1984) .................................................................................................. 43 Save the Peaks Coal. v. U.S. Forest Service, 669 F.3d 1025 (9th Cir. 2012) ................................................................................................ 1, 2 Skidmore v. Swift & Co., 323 U.S. 134 (1944) .................................................................................................................. 28 Tablada v. Thomas, 533 F.3d 800 (9th Cir. 2008) .................................................................................................... 28 Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 6 of 62 vi 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Tehema Colusa Canal Authority v. Interior, 819 F. Supp 2d 956 (2011) ....................................................................................................... 26 Tides v. Boing Co., 644 F.3d 809 (9th Cir. 2011) .................................................................................................... 30 Trinity County v. Andrus, 438 F. Supp. 1368 (1977) ......................................................................................................... 31 U.S. Army Corps of Eng’rs, 524 F.3d 938 (9th Cir. 2008) .......................................................................................... 1, 19, 39 United States v. Alpine Land & Reservoir Co., 887 F.2d 207 (9th Cir. 1989) .................................................................................................... 40 United States v. Eberhardt, 789 F.2d 1354 (9th Cir. 1986) .............................................................................................. 9, 12 United States v. Mead Corp., 533 U.S. 218 (2001) .................................................................................................................. 28 Valley Citizens for a Safe Env’t v. Vest, No. 91-30077, 1991 WL 330963 (D. Mass. May 6, 1991) ......................................................... 3 Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658 (1979) .................................................................................................................... 9 Westlands Water Dist. v. U.S. Dep’t of Interior, 376 F.3d 853 (9th Cir. 2004) ................................................................................................ 8, 10 Westlands Water Dist. v. United States, 153 F. Supp. 2d 1133 (E.D. Cal. 2001) ...................................................................................... 7 Wild Fish Conservancy v. Salazar, 628 F.3d 513 (9th Cir. 2010) .................................................................................................. 4, 5 Wilderness Soc’y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051 (9th Cir.2003) ................................................................................................... 28 Willow Creek Ecology v. U.S. Forest Serv., 225 F. Supp. 2d 1312 (D. Utah 2002) ....................................................................................... 24 STATUTES 5 U.S.C. § 706(2)(A)..................................................................................................................... 18 5 U.S.C. § 706(2)(D)..................................................................................................................... 45 16 U.S.C. § 1532(15) ...................................................................................................................... 3 16 U.S.C. § 1536(a)(2) .............................................................................................................. 4, 50 16 U.S.C. § 1536(b) ........................................................................................................................ 4 16 U.S.C. § 1536(b)(3)(A) ........................................................................................................ 5, 16 Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 7 of 62 vii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 U.S.C. § 1536(b)(4) ................................................................................................................... 5 16 U.S.C. § 1536(o)(2) ................................................................................................................... 5 16 U.S.C. § 1801 ............................................................................................................................. 5 16 U.S.C. § 1801(a) ........................................................................................................................ 6 16 U.S.C. § 1801(b) ........................................................................................................................ 6 16 U.S.C. § 1852 ............................................................................................................................. 5 16 U.S.C. § 1854 ............................................................................................................................. 5 16 U.S.C. § 1855(b)(2) ................................................................................................................... 6 16 U.S.C. § 1855(b)(4)(A) .............................................................................................................. 6 16 U.S.C. § 1855(b)(4)(B) .......................................................................................................... 6, 7 16 U.S.C. § 661 ............................................................................................................................. 34 16 U.S.C. § 663 ............................................................................................................................. 34 16 U.S.C. §§ 1811, 1853 ................................................................................................................. 5 16 U.S.C. §1802(10) ....................................................................................................................... 6 16 U.S.C. §1853(a)(7) ..................................................................................................................... 6 42 U.S.C. § 4321 ....................................................................................................................... 1, 11 42 U.S.C. § 4332(2)(C) ................................................................................................................... 1 Pub. L. No. 102-575 ...................................................................................................................... 11 Pub. L. No. 104-143 ................................................................................................................ 10, 32 Pub. L. No. 84-386 .......................................................................................................................... 8 Pub. L. No. 98-541 .................................................................................................................. 10, 32 REGULATIONS 40 C.F.R. § 1501.1 .......................................................................................................................... 1 40 C.F.R. § 1501.4(b) ..................................................................................................................... 2 40 C.F.R. § 1501.4(e)...................................................................................................................... 2 40 C.F.R. § 1506.11 ............................................................................................................ 3, 35, 38 40 C.F.R. § 1508.13 ........................................................................................................................ 2 40 C.F.R. § 1508.27 ...................................................................................................................... 39 40 C.F.R. § 1508.27(a).................................................................................................................. 39 40 C.F.R. § 1508.9 .......................................................................................................................... 2 Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 8 of 62 viii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 43 C.F.R. § 46.150 .................................................................................................................... 3, 36 43 C.F.R. § 46.150(a)-(b).............................................................................................................. 37 50 C.F.R. § 402.13(a)...................................................................................................................... 4 50 C.F.R. § 402.14 ........................................................................................................................ 46 50 C.F.R. § 402.14(a)...................................................................................................................... 4 50 C.F.R. § 402.14(b)(1) ................................................................................................................. 4 50 C.F.R. § 402.14(c)................................................................................................................ 4, 46 50 C.F.R. § 402.14(g) ............................................................................................................... 4, 52 50 C.F.R. § 402.14(h)(3) ................................................................................................................. 5 50 C.F.R. § 402.14(i) ...................................................................................................................... 5 50 C.F.R. § 402.16 ........................................................................................................................ 46 50 C.F.R. § 600.920(f) .............................................................................................................. 6, 54 50 C.F.R. pt. 402 ............................................................................................................................. 4 59 Fed. Reg. 51607 (Oct. 12, 1994) .............................................................................................. 11 80 Fed. Reg. 41061 (July 14, 2015) .................................................................................. 15, 20, 22 LEGISLATIVE HISTORY H.R. Rep. No. 104-395 (1995) ...................................................................................................... 33 H.R. Rep. No. 84-123 (1954) ........................................................................................................ 31 H.R. Rep. No. 84-602 (1955) ........................................................................................................ 27 S. Rep. No. 84-1154 (1955) .................................................................................................... 27, 30 OTHER AUTHORITIES Emergencies and the National Environmental Policy Act, May 12, 2010, available at https://ceq.doe.gov/ceq_regulations/Emergencies_and_NEPA_Memorandum ................................ 3 Emergencies and the National Environmental Policy Act, Memorandum for Heads of Federal Departments and Agencies, May 12, 2010, available at https://ceq.doe.gov/ceq_regulations/Emergencies_and_NEPA_Memorandum_12May2010.pdf ... 36 U.S. Dep't of Interior, Draft EIS, http://www.usbr.gov/mp/nepa/nepa_projdetails.cfm?Project_ID=22021 ................................ 20 U.S. Fish and Wildlife Service, Trinity River Flow Evaluation – Final Report 16 (1999), http://odp.trrp.net/Data/Documents/Details.aspx?document=226 .............................................. 8 Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 9 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCTION This is the second lawsuit Plaintiffs have filed challenging the U.S. Bureau of Reclamation’s (“Reclamation”) decisions to make late-summer flow augmentation releases (“FARs”) from Trinity Reservoir in order to benefit fall-run Chinook salmon in the lower Klamath River during years when there is a significant risk of a disease outbreak. Each year that Reclamation has decided to make these FARs, it has evaluated then-current conditions and determined that the FARs are necessary to prevent a catastrophic fish die-off like the one that occurred in 2002. It appears that Plaintiffs generally oppose the FARs because they would rather that the water used to protect the fish instead be exported from the Klamath-Trinity Basin into the Sacramento River Basin and then be diverted down the Sacramento River and made available to them to use for agricultural purposes. Accordingly, Plaintiffs have attempted to stop the FARs by alleging that Reclamation does not have the authority to make the FARs and that Reclamation’s decisions violate Reclamation law, the National Environmental Policy Act (“NEPA”), the Endangered Species Act (“ESA”), and the Magnuson-Stevens Act (“MSA”). All of these claims are without merit. LEGAL BACKGROUND I. National Environmental Policy Act NEPA was enacted to foster better decision making and informed public participation for actions that affect both people and the natural environment. See 42 U.S.C. § 4321; 40 C.F.R. § 1501.1; see also Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). To that end, the statute does not mandate particular results, but simply establishes procedural requirements for assessing the potential environmental impacts of an agency’s decisions. Marsh v. Or. Natural Res. Council, 490 U.S. 360, 371 (1989); Methow Valley, 490 U.S. at 349-50. As the Ninth Circuit has explained, “[j]udicial review of agency decision-making under NEPA is limited to the question of whether the agency took a ‘hard look’ at the proposed action as required by a strict reading of NEPA’s procedural requirements.” Bering Strait Citizens for Resp. Res. Dev. v. U.S. Army Corps of Eng’rs, 524 F.3d 938, 947 (9th Cir. 2008). Thus, NEPA requires federal agencies to prepare an environmental impact statement Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 10 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (“EIS”) for “major Federal actions significantly affecting the quality of the human environment . . . .” 42 U.S.C. § 4332(2)(C); Save the Peaks Coal. v. U.S. Forest Serv., 669 F.3d 1025, 1035 (9th Cir. 2012). In order to determine whether an action is one requiring an EIS, the agency may prepare an EA. 40 C.F.R. § 1501.4(b). An EA is a concise public document that briefly describes the proposal, examines alternatives, and considers environmental impacts to determine whether an EIS is required. 40 C.F.R. § 1508.9. If, through the EA, the agency determines that an EIS is not required, the agency shall issue a finding of no significant impact (“FONSI”). 40 C.F.R. § 1501.4(e); see also 40 C.F.R. § 1508.13. In challenging a FONSI, a plaintiff must raise “substantial questions whether a project may have a significant effect” on the environment. Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998) (citation omitted). When considering environmental impacts under NEPA, agencies are entitled to select their own methodology as long as that methodology is reasonable. See e.g., Balt. Gas & Elec. v. Natural Res. Def. Council, 462 U.S. 87, 100-01 (1983). Accordingly, “[w]hen specialists express conflicting views, an agency must have discretion to rely on the reasonable opinion of its own qualified experts, even if, as an original matter, a court might find contrary views more persuasive.” Marsh, 490 U.S. at 378; see also San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 618, 621 (9th Cir. 2014) (Delta Smelt Appeal) (noting that deference is particularly appropriate when agency choices regarding scientific methodology are involved); Ecology Ctr. v. Castaneda, 574 F.3d 652, 658-59 (9th Cir. 2009) (same). The Council on Environmental Quality (“CEQ”) is charged with administering NEPA. Crosby v. Young, 512 F. Supp. 1363, 1386 (E.D. Mich. 1981) (“CEQ has been delegated the responsibility to implement the procedural requirements of NEPA.”). CEQ regulations include a provision that addresses emergency circumstances that prevent federal agencies from fully complying with NEPA’s procedural requirements before taking action.1 The regulation provides as follows: 1 CEQ was “established by NEPA with authority to issue regulations interpreting it,” and CEQ has promulgated regulations, like this one, setting out steps that agencies must follow. Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 756-57 (2004); see Andrus v. Sierra Club, 442 U.S. 347, 358 (1979) (citing 42 U.S.C. 4344(3)). CEQ’s interpretation of NEPA is entitled to “substantial deference.” Methow Valley, 490 U.S. at 355-356. Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 11 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Where emergency circumstances make it necessary to take an action with significant environmental impact without observing the provisions of these regulations, the Federal agency taking the action should consult with the Council about alternative arrangements. Agencies and the Council will limit such arrangements to actions necessary to control the immediate impacts of the emergency. Other actions remain subject to NEPA review. 40 C.F.R. § 1506.11. Alternative arrangements implemented pursuant to 40 C.F.R. § 1506.11 are not an exemption from NEPA’s requirements; instead, they establish an alternative means for complying with the statute. See, e.g., Valley Citizens for a Safe Env’t v. Vest, No. 91-30077, 1991 WL 330963, at *6 (D. Mass. May 6, 1991). CEQ guidance regarding NEPA compliance in responding to emergencies clarifies that agencies should “not delay immediate actions necessary to secure lives and safety of citizens or to protect valuable resources,” but should “[c]onsult with CEQ as soon as feasible.” CEQ, Emergencies and the National Environmental Policy Act, May 12, 2010, available at https://ceq.doe.gov/ceq_regulations/Emergencies_and_NEPA_Memorandum _12May2010.pdf. If the action is not expected to have “significant” environmental impacts, the CEQ guidance makes clear that the action agency is not required to secure alternative arrangements under 40 C.F.R. § 1506.11; instead, the agency is directed to “[p]repare a focused, concise EA” addressing the core elements of an EA. Id. The Department of Interior has also promulgated regulations that address compliance with NEPA requirements when emergencies actions are necessary. See 43 C.F.R. § 46.150. II. Endangered Species Act Section 7 of the ESA requires federal agencies to, in consultation with the “consulting agency,” conserve species listed under the ESA. Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d 917, 924-25 (9th Cir. 2008). ESA section 7(a)(2) provides that each federal agency shall, in consultation and with the assistance of the Secretary of the Interior or Commerce, depending on the species,2 “insure that any action authorized, funded, or carried out by such [action] agency . . . is not likely to jeopardize the continued existence of any endangered . . . or threatened species or result in the destruction or adverse modification” of designated 2 The ESA divides responsibility for listed species between the Secretary of the Interior and the Secretary of Commerce. 16 U.S.C. § 1532(15). Interior has delegated its ESA responsibilities to FWS; Commerce to NMFS. Here, the action agency is the Bureau of Reclamation, while the consulting agency is NMFS. Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 12 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 critical habitat. 16 U.S.C. § 1536(a)(2). Section 7(b), 16 U.S.C. § 1536(b), and implementing regulations, see 50 C.F.R. pt. 402, address the consultation process. If an action agency determines that its proposed action will have no effect on listed species, ESA consultation requirements are not triggered. If the action agency determines that an action “may affect” a listed species or critical habitat, it is required to consult with the relevant consulting agency. 50 C.F.R. § 402.14(a). Consultation may be either informal or formal. Informal consultation “includes all discussions, correspondence, etc.,” between the consulting agency and the action agency “designed to assist the Federal [action] agency in determining whether formal consultation or a conference is required.” 50 C.F.R. § 402.13(a). If, as a result of informal consultation, the action agency determines, with the written concurrence of the consulting agency, that the proposed action is not likely to adversely affect any listed species or critical habitat, the consultation process is concluded. 50 C.F.R. § 402.14(b)(1); see id. § 402.13(a). If the action agency determines that the proposed action is likely to adversely affect any listed species or critical habitat, formal consultation is required. Formal section 7 consultation begins when the action agency transmits a written request to the consulting agency. See 50 C.F.R. § 402.14(c); Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1223 (9th Cir. 2008). Formal consultation ends when the consulting agency issues its biological opinion evaluating the “current status of the listed species” and the “effects of the action and cumulative effects on the listed species,” and offering a conclusion “as to whether the action, taken together with cumulative effects, is likely to jeopardize the continued existence of listed species.” 50 C.F.R. § 402.14(g); Wild Fish Conservancy v. Salazar, 628 F.3d 513, 518 (9th Cir. 2010). A biological opinion addressing an agency’s long-term management plan may fulfill the requirements of ESA section 7 for future actions consistent with the opinion. See Buckeye Forest Council v. U.S. Forest Service, 378 F. Supp. 2d 835, 842-43 (S.D. Ohio 2005). If the consulting agency concludes that an action is likely to jeopardize a listed species, it will recommend “reasonable and prudent alternatives” (“RPAs”) to avoid jeopardy. Wild Fish Conservancy, 628 F.3d at 519; 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(h)(3). Also, if the Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 13 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 consulting agency concludes that the action is likely to result in the “take” of listed species, then it must issue an “incidental take statement” with the biological opinion. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i). Section 7(o)(2) of the ESA provides that “any taking that is in compliance with the terms and conditions specified in a written [incidental take] statement … shall not be considered to be a prohibited taking of the species concerned.” 16 U.S.C. § 1536(o)(2). If an action agency and consulting agency have initiated or reinitiated consultation, ESA section 7(d) provides that the action agency “shall not make any irreversible or irretrievable commitment of resources” during consultation “which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures” that would avoid jeopardy. Id. § 1536(d). III. Magnuson-Stevens Fishery Conservation and Management Act (“MSA”) In enacting the MSA, 16 U.S.C. § 1801 et seq., Congress delegated to the Secretary of Commerce “broad authority to manage and conserve coastal fisheries.” Kramer y, Mosbacher, 878 F.2d 134, 135 (4th Cir. 1989). Among other things, the MSA authorizes development of federal Fishery Management Plans (“FMPs”), and federal regulation of domestic fisheries under those FMPs, within the 200-mile U.S. Exclusive Economic Zone (“EEZ”). 16 U.S.C. §§ 1811, 1853. To assist the Secretary in carrying out specific management and conservation duties, the MSA created eight regional fishery management councils. Kramer, 878 F.2d at 135. Under the MSA, an FMP and any amendments are usually originated by one of the eight regional fishery management councils, 16 U.S.C. § 1852, and are subsequently approved, implemented, and enforced by NMFS. 16 U.S.C. § 1854. In 1996, the Sustainable Fisheries Act amended the MSA by adding provisions aimed at halting overfishing and rebuilding overfished fisheries, reducing bycatch, and assessing and minimizing the impacts of management measures on fishing communities. These amendments included findings by Congress that: one of the greatest long-term threats to the viability of commercial and recreational fisheries is the continuing loss of marine, estuarine, and other aquatic habitats. Habitat considerations should receive increased attention for the conservation and management of fishery resources of the United States. Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 14 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 U.S.C. § 1801(a). In making such findings, Congress further declared that a new purpose of the MSA was to promote “the protection of essential fish habitat [(“EFH”)] in the review of projects conducted under Federal permits, licenses, or other authorities that affect or have the potential to affect such habitat.” 16 U.S.C. § 1801(b). To ensure that habitat considerations receive increased attention in the conservation and management of fishery resources, the amended MSA requires each existing, and any new, FMP to “describe and identify essential fish habitat for the fishery based on the guidelines established by the Secretary under section 1855(b)(1)(A) of this title, minimize to the extent practicable adverse effects on such habitat caused by fishing, and identify other actions to encourage the conservation and enhancement of such habitat.” 16 U.S.C. §1853(a)(7). EFH is defined in the MSA as “those waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity” 16 U.S.C. §1802(10). The MSA also requires that each Federal agency consult with the Secretary of Commerce with respect to any action that the agency authorizes, funds, undertakes, or proposes that may adversely affect EFH. 16 U.S.C. § 1855(b)(2). Further, the MSA requires that the Secretary recommend to any State or Federal agency measures that can be taken by such agency to conserve such habitat where the Secretary receives information that an action authorized, funded, or undertaken, or proposed by that agency would adversely affect EFH. 16 U.S.C. § 1855(b)(4)(A). Finally, any Federal action agency that receives recommendations regarding EFH must respond to the applicable Council and the Secretary within 30 day of receipt of such recommendations. 16 U.S.C. § 1855(b)(4)(B). The required response must either explain measures for avoiding, mitigating, or offsetting adverse impact of the habitat or explain the agency's reasons for not following such recommendations. Id. Regulations further provide that “depending on the nature and scope of the actions that may adversely affect EFH,” Federal agencies “may use one of the five [enumerated] approaches” to fulfill the EFH consultation requirements. Id. As relevant here, 50 C.F.R. § 600.920(f) specifically provides that MSA consultation “should be consolidated, where appropriate, with interagency consultation … procedures required by other statutes, such as NEPA [or the] ESA[.]” In all cases, NMFS’s recommendations are non-binding on the requisite Federal action agencies. 16 U.S.C. § Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 15 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1855(b)(4)(B). FACTUAL AND PROCEDURAL BACKGROUND I. The Central Valley Project and the Trinity River Division The Central Valley Project (“CVP”) and the State Water Project (“SWP”), “operated respectively by [Reclamation] and the State of California, are perhaps the two largest and most important water projects in the United States.” Delta Smelt Appeal, 747 F.3d at 592. “These combined projects supply water originating in northern California to more than 20,000,000 agricultural and domestic consumers in central and southern California.” Id. As part of CVP operations, Reclamation releases water stored in CVP reservoirs in northern California, which then flows down the Sacramento River to the Delta. Id. at 594. Pumping plants in the southern region of the Delta can then divert water through the Delta–Mendota Canal and other facilities to various users, including Plaintiffs’ members. AquAlliance v. U.S. Bureau of Reclamation, No. 1:14-CV-000945-LJO-B, 2014 WL 3401390, at *3 (E.D. Cal. July 11, 2014). The Trinity River Division (“TRD”) is a component of the CVP. San Luis & Delta– Mendota Water Auth. v. Jewell, 52 F. Supp. 3d 1020, 1028 (E.D. Cal. 2014) (“Trinity I”). Reclamation operates the TRD pursuant the 1955 Act of Congress that authorized the TRD and to state water rights permits issued by the State Water Resources Control Board (“SWRCB”). Id. (citing Westlands Water Dist. v. United States, 153 F. Supp. 2d 1133, 1144 (E.D. Cal. 2001), aff'd, 337 F.3d 1092 (9th Cir. 2003)). The TRD impounds the mainstem of the Trinity River initially at Trinity Dam, behind which water accumulates to form the approximately 2,448,000 acre-foot (“AF”) Trinity Reservoir. Id. at 1028-1029. A second reservoir and dam, Lewiston, which is downstream of Trinity Reservoir, regulates water releases to the Trinity River. Id. at 1029. The Trinity River is the largest tributary to the Klamath River; its confluence lies at Weitchpec near the eastern end of the Yurok Reservation and the western end of the Hoopa Valley Reservation, approximately forty-four miles upstream of the mouth of the Klamath River. Westlands Water Dist. v. U.S. Dep’t of Interior, 376 F.3d 853, 860-861 (9th Cir. 2004). The Klamath River and its tributaries provide spawning and rearing habitat to substantial runs of anadromous fish, including spring- and fall-run Chinook salmon, Endangered Species Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 16 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Act (”ESA”) listed Coho salmon, and steelhead. Id. Each of these species requires varied water conditions, including depth, velocity, and temperature, at different stages throughout their lives. Id. at 862. Depending on the species, a juvenile fish will remain in the river for a few months to a few years before its size, water temperature, flow, and the daylight period trigger its migration to the ocean. U.S. Fish and Wildlife Service, Trinity River Flow Evaluation – Final Report 16 (1999), available at http://odp.trrp.net/Data/Documents/Details.aspx?document=226. After three to six years in the ocean, depending on the species, the fish will return to the mouth of the Klamath, and begin its migration back upriver to its spawning grounds, either on the mainstem of the Klamath or in tributaries including the Trinity River. Id. at 18. All salmonids which spawn in the Trinity River must first swim up the 44 miles of the lower Klamath River from the Pacific Ocean to the confluence of the Klamath and Trinity Rivers. The construction of dams on the Trinity River to divert water from the River blocked access by salmon and steelhead to 109 miles of upriver habitat and significantly altered river flow and gravel supply conditions in ways that degraded habitat for anadromous fish. Westlands, 376 F.3d at 862. Congress authorized construction of the TRD through the Trinity River Division Central Valley Project Act of 1955 (“1955 Act”), Pub. L. No. 84-386, 69 Stat. 719 (1955), concluding that it was possible to divert water from the Trinity River Basin to the Central Valley to supply irrigators and generate power “without harming the fishery of the Trinity and Klamath Rivers.” Westlands, 376 F.3d at 861. In section 2 of the 1955 Act, Congress expressly addressed the integration and coordination of the TRD with the CVP and required that in-basin flow needs be met prior to exporting water from the Trinity River Basin to the Central Valley. See Mem. from the Solicitor to Assistant Sec’y – Land and Water Resources, Proposed Contract with Grasslands Water District (December 7, 1979) (“Krulitz Mem.”) (San Luis & Delta-Mendota Water Auth. v. Jewell, Case No. 1:13-cv-1232-LJO-GSA (E.D. Cal) (“Trinity I”), Dkt. 51-3). Specifically, proviso 1 of section 2 provides that the Secretary is “authorized and directed to adopt appropriate measures to insure the preservation and propagation of fish and wildlife.” 1955 Act, 69 Stat. 719. Proviso 2 requires that not less than 50,000 acre-feet (AF) of water be released and made available to Humboldt County and downstream water users.” Id. These two provisos Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 17 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 are separate and independent limitations on the integration of the TRD with the rest of the CVP and proviso 2 may require a release of water for beneficial use by Humboldt County and downstream users. See AR7091-7135. The reservations of the Hoopa Valley Tribe and the Yurok Tribe lie along the Trinity and lower Klamath Rivers. When the United States set aside these lands for the Tribes, it also reserved for the Tribes federally protected fishing rights to the fishery resource in the rivers running through the reservations. See, e.g., Blake v. Arnett, 663 F.2d 906, 909 (9th Cir. 1981); United States v. Eberhardt, 789 F.2d 1354, 1359 (9th Cir. 1986); Parravano v. Babbitt, 70 F.3d 539 (9th Cir. 1995), cert. denied, 518 U.S. 1016 (1996). A 1993 opinion from the Interior Solicitor emphasized that these rights include the right to harvest quantities of fish on their reservations sufficient to support a moderate standard of living and that the Tribes’ reserved fishing rights include the right to fish for ceremonial, subsistence, and commercial purposes. Mem. from John D. Leshy, Solicitor, to Sec’y of the Interior, Fishing Rights of the Yurok and Hoopa Valley Tribes, at 3, 15, 22, 32 (Oct. 4, 1993) (Trinity I, ECF No. 51-2). In a similar context, the U.S. Supreme Court interpreted the “moderate standard of living” secured by tribal reserved fishing rights as one guaranteeing Indians a “livelihood” from a meaningful fishery, recognizing the historical abundance of the fishery and dependence on those resources by the Tribes; the relative stability and predictability of anadromous fish runs, analogizing the ability to harvest fish to more traditional “crops”; and the perception that the Tribes were unlikely to perceive their reserved fishing rights as “merely the chance . . . to dip their nets into the territorial waters.” Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 663-66, 674-85 (1979). In the thirty years following its construction, the TRD diverted an average of 68 percent of the Trinity River’s flows to the CVP, imposing “what was essentially extreme drought conditions” on the Trinity River’s fish and wildlife populations.3 Westlands, 376 F.3d at 862. In 1981, the Secretary of the Interior (“Secretary”) issued a decision initiating the Trinity River 3 Over the first ten years an average of 88 percent of the River’s flow was diverted to the Central Valley. Westlands, 376 F.3d at 861. Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 18 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Flow Evaluation Study (“TRFES”), a scientific evaluation to determine appropriate flows and other measures to restore the Trinity River’s fishery. Secretarial Issue Document, Trinity River Fishery Mitigation (Jan. 14, 1981) (“SID”) (Trinity I, ECF No. 51-4); see also Record of Decision: Trinity River Mainstem Fishery Restoration, 6 (Dec. 19, 2000) [hereafter “TRROD”]. The decision concluded that the Secretary’s trust responsibility to the Hoopa Valley Tribe and Yurok Tribe, combined with applicable federal laws, required the “restoration of the river’s salmon and steelhead resources to pre-project levels.” SID at 15. Congress adopted this restoration goal in the 1984 Trinity River Basin Fish and Wildlife Management Act (“1984 Act”), Pub. L. No. 98-541, 98 Stat. 2721 (1984). The 1984 Act directed the Secretary to implement a basin-wide management program “designed to restore the fish and wildlife populations . . . to the levels approximating those which existed immediately before the start of construction [of the TRD] and to maintain such levels.” Id. at § 2. In 1996, Congress amended the 1984 Act, extending appropriations for an additional three years and expanding the geographic scope of the 1984 Act’s restoration mandate to include “the Klamath River downstream of the confluence with the Trinity River.” Trinity River Basin Fish and Wildlife Management Act of 1996, Pub. L. No. 104-143, 110 Stat. 1338 (1996) (“1996 Act”); see also Trinity I, 52 F. Supp. 3d at 1031. The 1996 amendments also redefined 1984 Act’s restoration goals: fishery restoration would be measured not only by returning anadromous fish spawners, but also by the ability of tribal and non-tribal (commercial and sport) fishers to participate fully in the benefits of restoration through meaningful harvest opportunities. In 1992, Congress confirmed its support for the development of a program to restore the Trinity River fishery in the Central Valley Project Improvement Act, Pub. L. No. 102-575, §§3401-12, 106 Stat. 4600, 4706-31 (1992) (“CVPIA”). See Hoopa Valley Indian Tribe v. Ryan, 415 F.3d 986, 988 (9th Cir. 2005). The CVPIA listed among its purposes the need “to protect, restore, and enhance fish, wildlife, and associated habitats in the Central Valley and Trinity River Basins” and the need “to address impacts of the Central Valley Project on fish, wildlife, and associated habitats.” CVPIA § 3402(a), (b). Section 3406(b)(23) of the CVPIA directed the Secretary to provide through the TRD a minimum of 340,000 acre feet (“AF”) per year of releases to Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 19 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the Trinity River for the years 1992-1996. The Act further directed the Secretary to complete the study initiated in 1984 (the TRFES) “regarding permanent instream fishery flow requirements and [TRD] operating criteria and procedures for the restoration and maintenance of the Trinity River fishery” after consultation with the Hoopa Valley Tribe, and if the Secretary and Tribe concur in these recommendations, to implement any increase in instream flow releases recommended in the TRFES. CVPIA, § 3406(b)(23). As part of the TRFES process, the Department of the Interior (“Interior”) initiated the environmental review process to develop and assess alternatives aimed at restoring the Trinity River mainstem conditions to support fishery resources in the Trinity River. See 59 Fed. Reg. 51607 (Oct. 12, 1994). This process resulted in an EIS and Record of Decision (“TRROD”), which focused on the restoration of the Trinity River fishery. To accomplish that goal, the TRROD set flow levels for the mainstem of the Trinity River based on annual forecast hydrology. TRROD at 2. Consistent with its focus on Trinity River restoration, the ROD made clear that it did not preclude Interior from taking other actions to benefit the fisheries in the lower Klamath River. Id. at 15 (“[N]othing in this ROD is intended to preclude watershed restoration and monitoring, provided funding is available, below the confluence of the Trinity and Klamath Rivers. Because the TRFES and ROD focus on the Trinity River mainstem and Trinity Basin, watershed restoration and monitoring that benefit Trinity River fisheries below the confluence of the Trinity and Klamath Rivers may be considered by the Trinity Management Council.”). II. Flow Augmentation Releases for the Benefit of Salmonids in the Lower Klamath River In the fall of 2002 a massive die-off of fall-run Chinook salmon and other salmonids occurred on the lower Klamath River in California mainly on the Yurok Reservation. AR1310. The die-off was attributed to an outbreak of two deadly fish pathogen, Ich and Columnaris. Id. Warm water temperatures, low water velocities and volumes, high fish density, and long fish residence times likely contributed to the disease outbreaks and subsequent mortalities. Id. The United States Fish and Wildlife Service (“FWS”) estimated that 33,500 adult salmonids, Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 20 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 including 344 coho salmon, a species listed as threatened under the Endangered Species Act (“ESA”), died from the disease outbreak. Id. This die-off affected the long-term viability of fish populations and the opportunity of tribal and sport fishermen in the Klamath Basin to harvest fall-run Chinook salmon. These anadromous fish are trust resources of the Yurok and Hoopa Valley tribes, whose reservations adjoin the Klamath and Trinity Rivers, respectively, and are used by those tribes for subsistence, ceremonial, and commercial purposes. Eberhardt, 789 F.2d at 1359; see also AR1328, 1340. The lower Klamath River faced conditions similar to those that likely contributed to the 2002 die-off in 2003, 2004, 2012, 2013: low flows, poor water quality, and an extremely large estimated population of returning fall-run Chinook. AR1310-11. In response, and to avoid or reduce the impact of a fish die-off such as occurred in 2002, in each of these years the Bureau of Reclamation (“Reclamation”) released water from Trinity and Lewiston Reservoirs to increase flows in the lower Klamath River between the middle of August and the end of September. Id. In each of the years that these releases were made, no significant disease or adult mortalities occurred. Id. Plaintiffs’ challenged the 2012 and 2013 releases in Trinity I, which is now on appeal before the Ninth Circuit. A. 2014 FARs In July 2014, Reclamation announced that that it would rely on a rigorous fish health monitoring protocol and the fish health trigger to avoid a large scale fish die-off that summer. AR5178. The monitoring protocol provided that if that a certain number of Ich cases were confirmed, the flow rate of the lower Klamath River would be doubled for a period of seven days. Id. As the season progressed, flows from Klamath River tributaries were lower than expected and in some cases at or near zero and water temperatures in the lower Klamath River were warmer than forecasted, leading to overall lower water quality than anticipated. AR5179. The warmer temperatures and low flows led to migrating fish holding in the limited thermal refugias available, and crowding and signs of fish stress were observed. AR5179. Based on these observations of changed conditions, on August 22, 2014, Reclamation Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 21 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 decided to implement preventative FARs in the lower Klamath River, on an emergency basis, to reduce the risk of disease outbreak. AR5170; see also AR5179. The 2014 FARs began on August 23, 2014 and continued through approximately September 14, 2014, targeting a minimum flow of 2,500 cubic feet per second (cfs) in the lower Klamath River. AR5171, see also AR1311. Included in the action was a one-day pulse flow of 4,000 cfs in the lower Klamath River to “further improve environmental conditions and encourage fish to disperse from crowded holding areas and continue their spawning migrations.” Id. Reclamation consulted with CVP water users with respect to the emergency response. Exports from the Trinity River sub-Basin to the Sacramento basin were not affected in 2014 as operational decisions had already been made and were not affected by the emergency response action. Id. Reclamation also coordinated with the Hoopa Valley and Yurok Tribes, the U.S. Fish and Wildlife Service, NOAA Fisheries, and the California Department of Fish and Wildlife regarding the emergency releases. AR5170. B. 2015 FARs In 2015, the predicted fall run of Chinook was again large, with 119,000 fish expected to return to the lower Klamath River. Additionally, Ich was observed in the river system early in the season, and that combined with poor water quality and low flows indicated a significant risk of another large fish die-off in 2015 like the one that occurred in 2002. AR1311. Humboldt County requested in writing that its contract amount of not less than 50,000 acre-feet (“AF”) pursuant to the 1955 Act be provided to address fisheries needs and to protect human health and safety in the Klamath/Trinity river system. AR1312. The Hoopa Valley Tribe and the Yurok Tribe also requested in writing that the water available to Humboldt County and downstream users under the 1955 Act be made available for augmenting flows in the lower Klamath River. Id. Given the significant risk of a large fish die-off, Reclamation discussed the potential impacts of making FARs in an EA and FONSI. AR1305-1368. The proposed action in the EA provided for preventative FARs to commence when the cumulative harvest of Chinook salmon in the Yurok Tribal Fishery in the estuary area meets or exceeds a total of 7,000 fish or on Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 22 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 August 22, 2015, whichever occurred first. AR1353. The FARs were to target a flow rate of 2,800 cfs at the USGS gage located in the lower Klamath River near Klamath (“KNK”). Id. As part of the preventative releases, a pulse flow peaking at 5,000 cfs at KNK could occur in the first two weeks of September based on the presence of Ich and the associated timing of the fall- run Chinook salmon entry to the lower Klamath River. Id. These preventative releases could require up to 51,000 AF of water. AR1317. The proposed action also provided for emergency release in case of a disease outbreak at a target a flow 5,000 cfs in the lower Klamath River for up to five days. In the unlikely event that the emergency release was necessary, could have used up to an additional 37,000 AF of water. AR1317-18. Thus, the proposed action could have utilize supplemental flows of up to 88,000 AF. AR1352. C. The Long-Term Plan for future FARs Recognizing that flow augmentation releases would likely be needed in the future, Reclamation began to develop a long-term plan for such releases in late 2014. An early version of the long-term plan was released for public comment in January 2015. After reviewing and considering the comments, in April 2015, Reclamation released a draft final of the Long-Term Plan to Protect Adult Salmon in the Lower Klamath River (“Long-Term Plan”). AR7000. The Long-Term Plan includes “[a]n abbreviated history of the key considerations Reclamation has identified for evaluating flow augmentation measures; [a] proposed long term approach to help avoid the potential for a massive fish die-off; [a] discussion of the biological basis for flow augmentation, hydrologic factors, and non-flow alternatives; and [a] guide for future augmentation decisions and potential impacts to water deliveries and power generation.” AR7004. Reclamation is currently preparing an EIS that examines potential impacts associated with the Long-Term Plan. See Notice of Intent To Prepare a Draft Environmental Impact Statement for the Long-Term Plan To Protect Adult Salmon in the Lower Klamath River, Humboldt County, California, 80 Fed. Reg. 41,061 (July 14, 2015). Reclamation expects to release a draft EIS for public review and comment from October 22 to December 5, 2016, and expects that the final EIS will be completed by February 2017 and a final decision regarding a Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 23 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 long term plan will be released before any future FARs occur. See http://www.usbr.gov/mp/nepa/nepa_projdetails.cfm?Project_ID=22021, last visited Sep. 15, 2016. III. Relevant inter-agency consultation regarding Sacramento River, Central Valley, and Trinity River Salmonids. In 2006, Reclamation initiated consultation on the continued and future long-term operations of the CVP and its coordinated operations with state agencies of the SWP, asking NMFS “to prepare a BiOp assessing the impact of continued and future CVP/SWP operation on Delta Salmonid Species.” San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 988 (9th Cir. 2014). Reclamation delivered to NMFS a Biological Assessment that “could provide the basis for such a consultation in the fall of 2008.” Id. (“2008 BA”). The Delta Salmonid Species are: (1) Sacramento River winter-run Chinook salmon; (2) Central Valley spring-run Chinook salmon; (3) California Central Valley steelhead; and (4) Southern Distinct Population Segment (“DPS”) of North American green sturgeon. These four species, along with the Southern Oregon/Northern California Coasts (“SONCC”) coho salmon in the Klamath River Basin, are at issue here. AR5168. All are under the jurisdiction of the NMFS. Id. The 2008 BA also provided the basis for Reclamation’s consultation on the species’ EFH within the Central Valley as called for by the MSA. See Request For Judicial Notice (“RJN”) Ex. 2 (excerpts of 2009 BiOp) at 32-33, 39. Specifically, Chapter 16 of the 2008 BA, Essential Fish Habitat Assessment, identified EFH, “described potential adverse effects to designated EFH for Federally-managed fisheries species,” and provided “conservation measures to avoid, minimize, or otherwise offset” those potential effects. RJN Ex. 1 (excerpts of 2008 BA) at 16-1. In 2009, NMFS issued its biological opinion (“2009 BiOp”) concluding that proposed CVP operations and coordinated operations of the SWP would likely jeopardize the continued existence of the Delta Salmonid Species that use Central Valley waterways. See Locke, 776 F.3d at 988. As contemplated by 16 U.S.C. § 1536(b)(3)(A), NMFS developed a multi-component RPA that would avoid jeopardy and adverse modification of critical habitat, which Reclamation Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 24 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 is implementing. Id. at 988-989. NMFS divided the seventy-two component RPA into five operational categories. Id. at 989. Category I is the Sacramento River Division, and its component actions relate to CVP/SWP operations on the Sacramento River, which are “interconnected with those of the Trinity River Division.” RJN Ex. 3 (2011 amendments to 2009 BiOp RPA), § 11.2.2(I) (Sacramento River Division) at 42 of 189. Actions in Suite I.2 relate to Shasta Dam Operations, and are designed “to ensure that Reclamation uses maximum discretion to reduce adverse impacts of the projects to winter-run and spring-run in the Sacramento River by maintaining sufficient carryover storage and optimizing use of the cold water pool” behind Shasta Dam. Id. at 17. Suite I.2 recognized that despite Reclamation’s best efforts, severe temperature-related effects cannot be avoided in some years. The RPA includes exception procedures to deal with this reality. Due to these unavoidable adverse effects, the RPA also specifies other actions that Reclamation must take, within its existing authority and discretion, to compensate for these periods of unavoidably high temperatures. Id. One such exception procedure is provided as a component measure under Action I.2.2, which generally provides for various fall actions depending on End-of-September (“EOS”) storage and hydrology. Action I.2.2.C provides “exception procedures for EOS storage of 1.9 MAF or below” in Shasta Reservoir. Id. at 21. NMFS included this component because the 2008 BA modeling showed that “during a severe or extended drought, 1.9 EOS storage may not be achievable.” Id. at 23. With its 2009 BiOp, NMFS also provided its EFH Conservation Recommendations as required by the MSA. RJN Ex. 4 (2009 BiOp Encl. 2). In its EFH analysis, NMFS concluded that the CVP/SWP operations would adversely affect the species’ EFH, but that the 2009 BiOp RPA, which would avoid jeopardy and adverse modification, would also have “substantial benefits to Pacific salmon EFH, and commercially valuable Central Valley fall-run Chinook salmon.” RJN, Ex. 2 (excerpts of 2009 BiOp) cover letter at 2-3. NMFS also provided Conservation Recommendations to further reduce potential adverse effects on EFH. Id.; RJN Ex. 4 (2009 BiOp Encl. 2). In addition, NMFS informed Reclamation that it intended to “issue a separate biological opinion addressing SONCC coho salmon informed by the 2008 BA.” AR5168. In 2011, NMFS Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 25 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 again stated that it was “in the process of conducting a separate consultation on the effects of the Trinity River Division operations on listed coho salmon in the Trinity River.” RJN Ex. 3 (2011 amendments to 2009 BiOp RPA) at 42 of 189. To date, Reclamation has not received that biological opinion, and consultation continues. AR5168. IV. Litigation related to the 2009 BiOp and RPA In 2009, Plaintiffs and other water districts challenged the 2009 BiOp and RPA. Locke, 776 F.3d at 989-990 (“Consolidated Salmonid Cases”). In 2011, the district court found the 2009 BiOp/RPA to be arbitrary and capricious and remanded the 2009 BiOp/RPA to NMFS (without vacatur). On December 12, 2011, this Court issued a final judgment along with a schedule for NMFS to complete the court-ordered remand of the BiOp (and a schedule for Reclamation’s associated NEPA consideration). Id. at 991; Consolidated Salmonid Cases, Case 1:09-cv-01053- LJO-DLB, Dkt. 655 (“Salmon Remand Order”). The Salmon Remand Order required NMFS to provide a draft BiOp to Reclamation by October 1, 2014, and to “complete ESA consultation” and issue “its final [BiOp] by February 1, 2016.” Salmon Remand Order at 3. The Court ultimately extended the remand schedule by two years (October 1, 2016 for draft BiOp, final BiOp by February 1, 2018). AR5167-68. Because of the Salmon Remand Order, when Reclamation was considering the 2014 FARs in the summer of 2014, Reclamation and NMFS were engaged in consultation on CVP operations for the Delta Salmonid Species. AR 5170-72. The day after the 2014 FARs were scheduled to end, the Consolidated Salmonid Cases appeals were argued and submitted to the Ninth Circuit. Locke, 776 F.3d 971. Three months later, on December 22, 2014, the Ninth Circuit reversed the district court’s order and upheld the validity of the 2009 BiOp/RPA in their entirety. Locke, 776 F.3d at 1010. Eight months after that, in August 2015, Reclamation proposed and then undertook the 2015 FARs. AR1305-06. STANDARD OF REVIEW None of Plaintiffs’ claims supplies a separate standard for review, so the Court “review[s] claims under these Acts under the standards of the [Administrative Procedure Act (‘APA’).” Delta Smelt Appeal, 747 F.3d 581, 601 (9th Cir. 2014) (citations omitted). Section 706(2) of the Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 26 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 APA provides that an agency action “must be upheld,” id., unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). As a reviewing court, the Court must consider whether the decision was based on a consideration of the relevant was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Delta Smelt Appeal, 747 F.3d at 601; quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). Although the inquiry must be thorough, the standard of review is “highly deferential.” Id. The agency’s decision is “entitled to a presumption of regularity,” and the Court “may not substitute [its] judgment for that of the agency.” Id. An agency’s decision may be reversed “only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008). ARGUMENT The Complaint alleges that Reclamation lacked the authority to make the 2014 and 2015 FARs, Reclamation’s decisions to make the FARs violate Reclamation law, Reclamation failed to comply with NEPA in reaching its decisions to make the FARs, Reclamation’s decisions regarding the FARs violate § 7 of the ESA, and Reclamation failed to comply with the Magnuson-Stevens Act in reaching its decisions to make the FARs. As discussed in detail below, all of these claims are without merit. I. Plaintiffs’ procedural claims are moot As an initial matter, Federal Defendants are entitled to summary judgment on Plaintiffs’ claims for relief under NEPA, the ESA, and the MSA because each of those claims is moot. An issue is moot “when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” Trinity I, 52 F. Supp. 3d at 1043 (quoting City of Erie v. Pap's A.M., 529 U.S. 277, 287 (2000)). “The underlying concern is that, when the challenged conduct ceases such that there is no reasonable expectation that the wrong will be repeated, then Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 27 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 it becomes impossible for the court to grant any effectual relief whatever to the prevailing party.” Id. (internal citations and quotations omitted). If the parties cannot obtain any effective relief, any opinion about the legality of a challenged action is advisory. Id. “Mootness has been described as the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” Id. “[A]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Id. at 67. Even if a case is moot, a case may nevertheless be judiciable if one of three exceptions to the mootness doctrine applies: (1) where a plaintiff “would suffer collateral legal consequences if the actions being appealed were allowed to stand”; (2) where defendant voluntarily ceased the challenged practice; or (3) for “wrongs capable of repetition yet evading review.” Ctr. for Biological Diversity v. Lohn, 511 F.3d 960, 964–66 (9th Cir. 2007). “The party asserting mootness has a heavy burden to establish that there is no effective relief remaining for a court to provide.” In re Palmdale Hills Property, LLC, 654 F.3d 868, 874 (9th Cir. 2011). But mootness, like standing, “must be evaluated on a claim-by-claim basis.” Trinity I, 52 F. Supp.3d at 1045 (citing Pac. Nw. Generating Co-op. v. Brown, 822 F. Supp. 1479, 1506 (D.Or. 1993)). A. Plaintiffs’ NEPA claims are moot As discussed above, NEPA is a procedural statute that requires that an agency take a “hard look” at the potential environmental impacts of an action. Bering Strait Citizens for Resp. Res. Dev., 524 F.3d at 947. The statute does not mandate particular results, but instead requires that an agency engage in informed decision-making. Marsh, 490 U.S. at 371; Methow Valley, 490 U.S. at 349-50. Thus, a challenge under NEPA is a challenge to the decision-making process. The decision-making process for the 2014 and 2015 FARs and the actions that were a result of that decision-making process have been completed. Specifically, Plaintiffs challenge Federal Defendants compliance with NEPA in regard to Reclamation’s 2014 decision and 2015 decision to make FARs. Reclamation released a decision memorandum regarding the 2014 FARs on August 22, 2014 and the 2014 FARs ended September 23, 2014. AR5170-72. Similarly, Reclamation released its decision regarding the 2015 FARs in its August 20, 2015 Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 28 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FONSI and the 2015 FARs ended September 21, 2015. Because both the decision-making process and the entirety of the actions that were the subject of the decision-making process have been completed, there is no relief that this Court could grant under NEPA regarding the 2014 and 2015 FARs. Plaintiffs argue that their NEPA claims are not moot because they fit within the exception for actions that are “capable of repetition, yet evading review.” This is not the case. First, the decision-making process followed in 2014 and 2015 is not likely to be repeated.4 In 2014, Reclamation invoked the emergency provisions of NEPA pursuant to 43 C.F.R. § 46.150 in making its decision to make the 2014 FARs. AR 5170-72. In 2015 and 2016, Reclamation prepared an EA analyzing the potential environmental impacts of the FARs proposed for each of those years and issued a FONSI. Each of these decision-making processes resulted in short-term plans. Reclamation is currently analyzing the potential environmental impacts of its draft Long- Term Plan to protect adult salmon in the lower Klamath River, see 80 Fed. Reg. 41061 (July 14, 2015). Reclamation expects to release a draft EIS for public review and comment from October 22 to December 5, 2016, and expects that the final EIS will be completed by February 2017 and a final decision regarding a long term plan will be releases before any future FARs occur. See http://www.usbr.gov/mp/nepa/nepa_projdetails.cfm?Project_ID=22021. Thus, Reclamation is not repeating either the NEPA procedures it followed in 2014 and 2015, nor is it contemplating the same short-term actions it implemented in 2014 and 2015. Furthermore, because the Long- Term Plan is expected to be in effect through 2030, Reclamation’s NEPA analysis regarding the Long-Term Plan will not evade review. Finally, the allegations in the Complaint themselves show that Plaintiffs’ NEPA claims are moot. In making their NEPA claims, Plaintiffs allege Reclamation should have prepared an EIS for the 2014 or 2015 FARs. See Compl. at ¶¶ 105-21. Reclamation is now working on just 4 This Court’s decision in Trinity I is instructive. There, these Plaintiffs similarly argued that Reclamation violated NEPA by failing to prepare an EIS prior to undertaking annual FARs. 52 F. Supp. 3d at 1045. The Court recognized, however, that Federal Defendants “adopted a different interpretation” of their statutory responsibilities in connection with the 2014 FARs, which led Reclamation to undertake a different procedure (invoking an “emergency” exception) than it had previously used, and which was “unlikely to repeat itself.” Id. The claim, the Court properly held, was therefore moot. Id. The Court’s reasoning and holding applies equally here and compels dismissal of these claims as moot. Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 29 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that – an EIS (albiet for a plan for future releases), which it expects to release soon. Thus, the Court could not grant Plaintiffs further relief on these claims. B. Plaintiffs’ ESA and MSA claims are moot Similarly, Plaintiffs’ ESA and MSA claims are moot because further ESA or MSA consultation on these completed actions would serve no practical purpose. See INS v. Ventura, 537 U.S. 12, 16 (2002) (in APA case, where a legal violation has been shown, “the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation” (citation omitted)); Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 715 (9th Cir. 2011) (declaratory relief justified only “when the challenged government activity is not contingent, has not evaporated or disappeared, and, by its continuing and brooding presence, casts what may well be a substantial adverse effect on the interests of the petitioning parties”). Plaintiffs contend that the “capable of repetition yet evading review” exception to mootness applies because “there is a reasonable expectation that Plaintiffs will be subjected to the challenged conduct again because Federal Defendants have made the FARs four years in a row … without engaging in ESA section 7 consultation ….” Dkt. 99 at 21. Contrary to Plaintiffs’ assertion, Dkt. 99 at 21, their challenges to the 2014 FARs do not fit within this narrow exception. As to the 2014 and 2015 FARs, Reclamation followed different procedures in 2014 to comply with its legal obligations. When Reclamation made its decisions on the 2014 FARs, the 2009 BiOp/RPA had been remanded and Reclamation and NMFS were engaged in formal consultation on CVP operations. See supra. Accordingly, Reclamation made a Section 7(d) determination. AR5167-69. Plaintiffs derisively call this approach a “remand equals initiation of consultation theory.” Dkt. 99 at 55. That miscasts the Defendants’ position, as detailed below. But it also rebuts Plaintiffs’ purported invocation of the “capable of repetition” exception, because it recognizes that the process that preceded the 2014 FARs was uniquely tailored to the circumstances presented that year, and not “a continuing practice” that could repeat itself. Indeed, as Plaintiffs acknowledge, these specific circumstances abruptly ended on in December 2014, when “the Ninth Circuit reversed the [prior court’s] judgment” and upheld the Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 30 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2009 BiOp/RPA in their entirety. Id. Thus, when Reclamation decided to implement flow- augmentation releases in 2015 and the agencies were no longer consulting on CVP operations, but instead were operating in accordance with a valid 2009 BiOp/RPA, Reclamation did not examine the action in the context of section 7(d). It sought and obtained NMFS’s written concurrence that proposed 2015 flow-augmentation releases were consistent with the 2009 BiOp/RPA and that formal consultation was therefore not required. AR1370. In other words, Reclamation adopted a different procedure to comply with its ESA and MSA responsibilities in 2014 than it did in 2015. And because the ESA challenges to the 2009 BiOp/RPA are resolved, there is no expectation that the parties will again confront the particular circumstances of 2014. Accordingly, the conduct underlying Plaintiffs’ ESA procedural claim regarding the 2014 FARs– Reclamation operating the CVP under a remanded, but not vacated 2009 BiOp pursuant to the Salmon Remand Order—is “not a continuing practice and is unlikely to repeat itself.” Trinity I, 52 F. Supp. 3d at 1045. Thus, their ESA challenge to the 2014 FARs is moot. Id. For the same reason, Plaintiffs’ derivative MSA claim is likewise moot. Similarly, as noted above, Reclamation is in the process of finalizing a Long-Term Plan that will protect adult salmon in the lower Klamath River, see 80 Fed. Reg. 41061 (July 14, 2015), and once that is completed in early 2017, it will govern. There is thus no expectation that the procedure for making short-term annual releases will continue as they are now after that time. II. All of Plaintiffs’ claims should be dismissed under the doctrine of prudential mootness. Even if the Court were to find that Plaintiffs’ procedural claims were not moot under Article III of the Constitution, the Court should nonetheless dismiss them under the doctrine of prudential mootness. Additionally, Plaintiffs’ substantive claims should also be dismissed for prudential mootness. Under the doctrine of prudential mootness, a court should dismiss a case even if it is not technically moot in a constitutional sense “if circumstances have changed since the beginning of litigation that forestall any occasion for meaningful relief.” Maldonado v. Lynch, 786 F.3d 1155, 1165 (9th Cir. 2015) (quoting Deutsche Bank Nat. Trust Co. v. F.D.I.C., 744 F.3d 1124, 1135 (9th Cir. 2014)). “Prudential mootness addresses not the power to grant Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 31 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 relief but the court’s discretion in the exercise of that power.... In some circumstances, a controversy, though not moot in the strict Article III sense, is so attenuated that considerations of prudence and comity for coordinate branches of government counsel the court to stay its hand, and withhold relief it has the power to grant.... [T]he doctrine of prudential mootness ... has particular applicability in cases ... where the relief sought is an injunction against the government.” Southern Utah Wilderness Alliance (“SUWA”) v. Smith, 110 F.3d 724, 727 (10th Cir. 1997) see, e.g., Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1121 (10th Cir. 2010) (prudential mootness raises “considerations of prudence and comity for coordinate branches of government” and counsels “court to stay its hand, and to withhold relief it has the power to grant”). These principles “also apply to actions for declaratory relief.” Oregon Nat. Res. Council v. Keys, No. CIV. 02-3080-CO, 2004 WL 1048168, at *10 (D. Or. May 7, 2004), report and recommendation adopted, No. CIV.02-3080-CO, 2004 WL 1490320 (D. Or. June 29, 2004) (citing Chamber of Commerce of the U.S. of America v. U.S. Dep’t. of Energy, 627 F.2d 289, 292 (D.C. Cir.1980)). This doctrine gives the court discretion to dismiss an action. Id. The court “should decline to grant declaratory or injunctive relief in cases where the government has already changed or is in the process of changing its policies or where it appears that any repetition of the action is unlikely.” Id. (citing Building and Const. Dept. v. Rockwell Intern. Corp., 7 F.3d 1487, 1492 (10th Cir. 1993)). The fact that Reclamation expects to complete additional analysis and finalize a Long- Term Plan in a matter of months - and thus before any future FARs occur - supports the dismissal of Plaintiffs’ claims on prudential mootness grounds. Because the Long-Term Plan is expected in short order to supersede the short-term procedures for making releases, and be subject to legal challenge, the Court should dismiss the challenges to the ephemeral 2014 and 2015 FARs under the doctrine of prudential mootness. See, e.g., Or. Natural Res. Council, 2004 WL 1048168 (dismissing, on grounds of prudential mootness, claims for alleged violations of ESA with respect to allegedly inadequate implementation of BiOp, where underlying opinion was still in effect but consultation was expected to be reinitiated shortly); Rogers v. FDIC as Receiver for Downey Sav. and Loan, No. 09-cv-0419, 2011 WL 2433647, at *3 (E.D. Cal. June Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 32 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11, 2011) (case prudentially moot because circumstances had changed and judgment would be to no effect); S. Yuba River Citizens League v. Nat’l Marine Fisheries Serv., No. 06-cv-2845, 2010 WL 4746187, at *2 (E.D. Cal. Nov. 16, 2010) (case prudentially moot because no meaningful relief could be granted); SUWA, 110 F.3d at 730 (ESA claims prudentially moot based on superseding consultation); Willow Creek Ecology v. U.S. Forest Serv., 225 F. Supp. 2d 1312, 1318-19 (D. Utah 2002) (NEPA challenges to partially completed timber harvest prudentially moot where any future harvest activities would be based on new NEPA analyses subject to judicial review); Los Alamos Study Grp. v. U.S. Dep’t of Energy, 794 F.Supp.2d 1216, 1222-26 (D.N.M. 2011) (dismissing as prudentially moot NEPA challenges based on agency’s preparation of supplemental EIS); Horstkoetter v. Dep’t of Pub. Safety, 159 F.3d 1265, 1277 (10th Cir. 1998) (dismissing challenge to regulation as moot because “[a]ny injunction that we might issue in this case … would be meaningless”). Regarding Plaintiffs’ substantive claims, it will be more appropriate for the Court to review Reclamation’s authority to make the releases, once Reclamation has more thoroughly analyzed and explained its decision in an EIS. The Court should exercise its discretion and dismiss all of Plaintiffs’ claims on the basis of prudential mootness rather than engaging in judicial review of soon-to-be superseded analysis. III. If the Court does not dismiss Plaintiffs’ claims on the basis of mootness or prudential mootness, it should stay the litigation “The Ninth Circuit has found that a stay may be appropriate ‘pending resolution of independent proceedings which bear upon the case. This rule applies whether the separate proceedings are judicial, administrative, or arbitral in character [.]’” California Trout, Inc. v. U.S. Bureau of Reclamation, 115 F. Supp. 3d 1102, 1117 (C.D. Cal. 2015) (quoting Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857, 863–64 (9th Cir.)). “A stay is appropriate when it will serve the interests of judicial economy by allowing for development of factual and legal issues, and when weighing of the hardships favors the granting of a stay.” Id. (citation omitted). Here, all past FARs have been completed and, based on Reclamation’s current schedule, any future, similar FARs will be conducted pursuant to the forthcoming Long-Term Plan that will be analyzed in an EIS. If the Court analyzes Plaintiffs’ claims at this time, the Court’s decision may Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 33 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 be outdated before it has any practical effect. Thus, if the Court does not dismiss all of Plaintiffs’ claims as moot or prudentially moot, the Court should stay this litigation until after the final EIS and Record of Decision on the Long-Term Plan are released.5 IV. Reclamation has authorization to make the FARs Even if the Court does not dismiss Plaintiffs’ lawsuit on mootness or prudential mootness grounds or stay the case, all of Plaintiffs’ claims fail on the merits. Plaintiffs first argue that Reclamation does not have the authority to make the FARs. That is not true. 1. The 1955 Act As discussed above, although Congress authorized construction of the TRD as an integrated component of the CVP through the 1955 Act, Congress expressly limited the operation and integration of the TRD by making it subject to two conditions, which are set forth in proviso language in Section 2 of the 1955 Act. The first condition, found in proviso 1 of section 2, states that the Secretary is authorized and directed to “adopt appropriate measures to insure the preservation and propagation of fish and wildlife” including certain minimum flows in the Trinity River deemed at the time as necessary to maintain the fishery (emphasis added). The second condition, found in proviso 2 of section 2, directs that not less than 50,000 AF of water shall be released and made available to Humboldt County and other downstream users. Either of these two provisos of the 1955 Act authorize the FARs. A. Proviso 2 of section 2 of the 1955 Act gives Reclamation the authority to make the flow augmentation releases. Proviso 2 of section 2 of the 1955 Act states “not less than 50,000 acre-feet shall be released annually from the Trinity Reservoir and made available to Humboldt County and downstream water users.” Making this water available to Humboldt County and downstream water users takes priority over providing water for other CVP uses. See Tehema Colusa Canal Auth. v. U.S. Dep’t of the Interior, 819 F. Supp. 2d 956, 982 (2011), aff’d 721 F.3d 1086 (9th Cir. 2013). Notably, the Act does not contain a limit regarding the purposes for which this water 5 Of course, if Plaintiffs’ wish to challenge that decision, they will need to bring a new lawsuit or secure leave to supplement their complaint in this lawsuit, and any judicial review will require a new Administrative Record. This further supports dismissal on the basis of mootness. Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 34 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 may be used, just to whom it is made available. The record demonstrates that Humboldt County and downstream water users including the Hoopa Valley Tribe and the Yurok Tribe requested that Reclamation make releases of this water in 2014 and 2015 in order to avoid a fish die-off in the lower Klamath River. See, e.g., AR7046-47, 7048-50; 7057-61; 7062-65; 0009-10; 395.6 Based upon the plain language of the Act and the requests of Humboldt County and downstream water users for releases of this water for the benefit of fish in the lower Klamath River, there should be no question that proviso 2 of the 1955 Act authorizes the FARs. Because they cannot deny that Reclamation is obligated to make not less 50,000 AF of water available to Humboldt County and downstream water users, Plaintiffs argue that proviso 2 water must be used for consumptive purposes, see Dkt. 99 at 23-25, despite there not being any support for this in the Act itself or its legislative history. As Plaintiffs’ note in their brief, the Court “should not add an ‘absent word’ to a statute.” Dkt. 99 at 30 (quoting Lamie v. United States, 540 U.S. 526, 538 (20040). Downstream water users include tribal, commercial, and recreational fishermen depend more on instream use rather than consumptive use. These downstream users rely on the health of the Klamath fishery. Notably the Yurok Tribe’s reservation is downstream of the TRD, along the lower Klamath River where the 2002 fish die- off largely occurred. The Yurok Tribe depends on the fishery as a trust resource for cultural and ceremonial purposes, as well as for the Tribe’s livelihood, health, and economy. See AR7057- 58. This Court has previously acknowledged that “Congress’ reference to ‘downstream users” may have been intended to include users on the Klamath River below the confluence with the Trinity, including some users who likely would have only been concerned with instream, rather than consumptive, uses.” See Dkt. 45 at 5. Additionally, the legislative history makes clear that proviso 2 extends in geographic scope to the lower Klamanth River. 7 Specifically, it demonstrates that the reason proviso 2 was 6 Even though the 2014 FARs used more than 50,000 AF of water, this does not mean that proviso 2 did not authorize these releases as the language of the Act specifies that “not less than 50,000 acre-feet” shall be made available. (emphasis added). It does not set an upper limit. 7 In Trinity I, the Court found that proviso 1 is limited in scope to the Trinity River. While Federal Defendants dispute this and have appealed this issue, if there is such a geographic limitation in proviso 1, that is another reason that proviso 1 and proviso 2 would not have the same purpose even if both could be used for fishery purposes because proviso 1 could only be used for fishery purposes in the Trinity River while proviso 2 water could be used for fishery purposes in the lower Klamath. Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 35 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 added to the 1955 Act was to address concerns over future water needs in the Trinity River basin and along the lower Klamath River. See, e.g., Senate Report, S. Rep. No. 1154, 84th Cong., 1st Sess. at 9 (1955) (“The few opposed interests who reside downstream in the Klamath River Basin are concerned over their future water needs.”); House Report, H.R. Rep. No. 602, 84th Cong., 1st Sess. at 8 (1955) (same); Trinity River Project, California: Hearing on H.R. 4663 Before the Subcomm. on Irrigation and Reclamation of the H. Comm. on Interior and Insular Affairs, 84th Cong. 107 (1955) (“I trust this committee, if in their [j]udgment they should favor this bill, will take into consideration the needs of the area through which the Klamath and Trinity Rivers flow and make provision for a flexible allocation of water to the affected area.”); see also AR7102 (explaining that proviso 2 was added to “secure congressional support for the legislation in the fact of downstream opposition”). Accordingly, even though Humboldt County encompasses part of the Trinity River mainstem8 in addition to the lower Klamath River, it is clear that proviso 2 was intended to reach beyond the Trinity River. Plaintiffs argue that proviso 2 water cannot be for fishery purposes because proviso 1 water is for fish and wildlife and the two provisos cannot have the same purpose. Dkt. 99 at 23- 24. There is no support for this argument. As discussed in the Memorandum from the Solicitor to Secretary of the Interior, Trinity River Division Authorization’s 50,000 Acre-Foot Proviso and the 1959 Contract between the Bureau of Reclamation and Humboldt County, M-37030 (December 23, 2014) (“Tompkins Opinion”), AR7091-7135, Proviso 1 refers generally to the preservation of fish and wildlife, whereas Proviso 2 refers to releases of water made available for downstream entities. Proviso 1 thus requires releases for distinct purposes, including specific amounts and specific locations, whereas Proviso 2 has no restriction on uses for the released water, instead specifying the entities that will be using the water. AR7100. Additionally, Plaintiffs argue that proviso 2 does not allow Humboldt County and downstream water users to demand that additional water to be released for instream flow purposes in part because proviso 1 authorizes “the Secretary to determine the ‘appropriate’ 8 In a footnote in Trinity I, this court stated that proviso 2’s reference to Humboldt County and downstream water users did not “necessarily mean the geographic scope of the 1955 Act extends beyond the Trinity River Basin” because Humboldt County encompasses part of the Trinity River mainstem. 52 F. Supp. 3d at 1060 n.23. Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 36 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 amount of water to be released for fisheries purposes.” Dkt. 99 at 24. Plaintiffs argue that the two provisos must have distinct purposes. Thus, by their own argument, the fact that proviso 1 gives the Secretary the discretion to make release for fishery purposes does not mean that proviso 2 could not serve another purpose – to allow Humboldt County and downstream water users to request water for their benefit, which may include instream uses. This is particularly true since Plaintiffs argue that the Secretary does not have the authority to make the FARs, which are for instream, fishery purposes. Plaintiffs argue that the Solicitor’s interpretation of proviso 2 is not entitled to any deference. Dkt. 99 at 28-29. An agency decision “is entitled to a measure of deference proportional to its power to persuade, in accordance with the principles set forth in Skidmore v. Swift & Co., 323 U.S. 134 (1944).” Tablada v. Thomas, 533 F.3d 800, 806 (9th Cir. 2008) (citing United States v. Mead, 533 U.S. 218, 228, 234 (2001)). Under Skidmore, “the weight that we are to give an administrative interpretation not intended by an agency to carry the general force of law is a function of that interpretation’s thoroughness, rational validity, and consistency with prior and subsequent pronouncements.” Wilderness Soc’y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1068 (9th Cir.2003) (citing Skidmore, 323 U.S. at 140). Federal Defendants acknowledge that the December 2014 Tompkins Opinion represents a departure from past interpretations of proviso 2. The Opinion itself acknowledges this. AR7092, 7094, 7097, 7099. However, this is not improper. See Chisholm v. FCC, 538 F.2d 349, 364 (D.C. Cir. 1976) (“[A]n administrative agency is permitted to change its interpretation of a statute, especially where the prior interpretation is based on error, no matter how longstanding.”). Federal Defendants are not arguing that their interpretation of proviso 2 is entitled to deference on the basis that it is consistent with prior opinions regarding this proviso.9 Rather, Federal Defendants’ interpretation of proviso 2 included in the Tompkins Opinion and applied in the 2015 EA and FONSI is entitled to deference on the basis of its rational validity and thoroughness. 10 9 Contrary to Plaintiffs’ assertion, see Dkt. 1 at ¶77, neither Reclamation nor the Department had previously taken a “consistent” position that proviso 2 required “consumptive uses.” Rather, as described in the Tompkins Opinion, the Department's interpretation of proviso 2 varied over time, and only in a 1995 letter did Reclamation suggest that proviso 2 required consumptive use. See AR7097-99. 10 Moreover, within the Department, Solicitor’s M-Opinions constitute the “final legal interpretations . . . on all matters within the jurisdiction of the Department, which shall be binding, when signed, on all other Departmental Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 37 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Proviso 1 of section 2 of the 1955 Act Provides Authority for the Releases Proviso 1 of section 2 of the 1955 Act was the subject of the recent decision by this Court in Trinity I, 52 F. Supp. 3d 1020 (E.D. Cal. 2014) (“Trinity I”) regarding the fall flow augmentation in 2013. This Court found that proviso 1 did not give Reclamation the authority to make the 2013 FARs because it was limited in geographic scope to the Trinity River basin, which does not encompass the lower Klamath River. See Trinity I, 52 F. Supp. 3d at 1059-60, 1063. Federal Defendants disagree with this determination, have filed an appeal, and respectfully request that the Court revisit the issue in this case because the Court did not have the benefit of briefing regarding the geographic scope of the 1955 Act as that was not specifically challenged by Plaintiffs. Federal Defendants do not repeat all of their prior arguments on this issue, but rather incorporate them by reference. See Trinity I, Case No. 1:13-cv-01232-LJO-GSA, Dkt. 51, 120-1, 135, 165. In Trinity I, this Court concluded that the fact the 1955 Act expressly references the Trinity River but not the Klamath River suggests that the authorization “to adopt appropriate measures to insure the preservation and propagation of fish and wildlife” does not include the lower Klamath River. Id. at 1059-60. Reclamation respectfully disagrees. The statutory language the Court referred to is, “the Secretary is authorized and directed to adopt appropriate measures to insure the preservation and propagation of fish and wildlife, including, but not limited to, the maintenance of the flow of the Trinity River ….” 1955 Act (emphasis added). Accordingly, the proviso expressly makes clear the reference to the Trinity River was not meant to be a limitation on the appropriate measures that the Secretary is authorized to take insure the preservation and propagation of fish and wildlife that may be impacted by the integration of the TRD. The plain language unambiguously is without the geographic limitation. However, even if the language is ambiguous regarding a geographic limitation and the Court looks to the legislative history, see Tides v. Boing Co., 644 F.3d 809, 814 (9th Cir. 2011) (noting that if a statute is ambiguous, it is appropriate for a court to consider the legislative history in order to determine Congress’s intended meaning), it is clear from that history that Congress intended offices and officials and which may be overruled or modified only by the Solicitor, the Deputy Secretary, or the Secretary.” 209 Departmental Manual 3.2(B)(11), available at http://elips.doi.gov/ELIPS/DocView.aspx?id=792. Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 38 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 for the mandate to protect and preserve fish and wildlife to apply to the lower Klamath in addition to the Trinity. Many of the discussions during hearings before the Senate and House of Representative discuss concerns of citizens in the Klamath River basin and the need to protect and preserve fish and wildlife in the lower Klamath River. At one hearing before the House of Representatives, Subcommittee on Irrigation and Reclamation of the Committee on Interior and Insular Affairs, the Reclamation’s then-regional director, Clyde H. Spencer, explained that Reclamation had received complaints from Indians from reservations in the Klamath Basin. Trinity River Project, California: Hearing on H.R. 4663 Before the Subcomm. on Irrigation and Reclamation of the H. Comm. on Interior and Insular Affairs, 84th Cong. 27 (1955). In response, Congressman Clifton Young asked if Reclamation discussed “the provisions in [the 1955 Act] for the protection of fish and wildlife.” Congressman Young’s question demonstrates that Congress intended the provisions of the Act protecting fish and wildlife to apply to the Indian Reservations in the Klamath Basin, which included lands along the lower Klamath River. See AR7102 n.42 (citing legislative history, including concerns raised by Yurok member from the lower Klamath River and from Del Norte County residents along with those from Humboldt County). The legislative history demonstrates that the specific measures enumerated in proviso 1 were only some of the appropriate measures that the Secretary was authorized to adopt. A Senate Report on the 1955 Act states: “The legislation sets out minimum flows to be maintained below the Trinity diversion point and below the Clear Creek diversion point, and requires that the project be operated so as to insure the preservation and propagation of fish and wildlife.” Senate Report, S. Rep. No. 1154, 84th Cong., 1st Sess. (1955) (emphasis added). In Trinity I, this Court held that the legislative history shows that at the time the 1955 Act was enacted Congress had reason to believe that there would not be any significant impacts to flows in the lower Klamath and thus questioned why Congress would need to authorize the Secretary to protect fish and wildlife in the lower Klamath River. 52 F. Supp. 3d at 1061. The legislative history shows that Congress did not think that there would be any significant impact to flows in either the lower Klamath or the Trinity River because diversions to storage would only occur during periods of high flows and only take surplus water. See id. (quoting Hearing on Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 39 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 H.R. 123 Before the Subcomm. on Irrigation and Reclamation of the Comm. on Interior and Insular Affairs, 83d Cong. 5 (1954) (statement of Clyde H. Spencer, Regional Director of U.S. Bureau of Reclamation for Region 2) (“low-water flows throughout the lower Trinity and Klamath Rivers would be improved, while water would be stored in Trinity Reservoir or diverted to the Sacramento only when times when large quantities are flowing in the lower Trinity from other sources”); see also S. Rep. No. 1154 at 5 (“water surpluses to the present and future requirements of the Trinity and Klamath Basins are available for diversion”); H.R. Rep. No. 602 at 4 (“there is available for importation from the Trinity River water that is surplus to the present and future water requirements of the Trinity and Klamath River Basins”). Despite the idea of diversions only using surplus water, there is no dispute that Congress saw the need to and did protect fish in the Trinity River, thus there is no reason to believe that Congress did not also intend to protect fish in the Klamath River. Finally, as this Court concluded in Trinity I, neither the CVPIA nor the TRROD superseded the 1955 Act’s authorization to adopt appropriate measures to preserve and protect fish and wildlife. Under the plain language of the 1955 Act, the Secretary has the discretion to determine “appropriate measures” to “insure preservation and propagation of fish and wildlife,” see, e.g., Trinity County v. Andrus, 438 F. Supp. 1368, 1376 (1977) (emphasis added), whereas the 1984 Act and the CVPIA § 3406(b)(23) both deal with restoration of the mainstem of the Trinity River. See Trinity I, 52 F. Supp. 3d at 1062. Accordingly, even if the CVPIA and resulting ROD placed limits on Reclamation’s authority to take actions to restore and rehabilitate fish habitat in the Trinity River, they would not limit Reclamation’s authority to “adopt appropriate measures to insure the preservation and propagation of fish and wildlife,” 1955 Act at § 2 (emphasis added), in the lower Klamath River. C. The Trinity River Basin Fish and Wildlife Management Act of 1984 and Amendments Plaintiffs argue that the Trinity River Basin Fish and Wildlife Management Act does not authorize the releases because it is directed at non-flow, physical restoration measures. Dkt. 99 at 29. This is simply incorrect. The Act authorizes the Secretary to “formulate and implement a Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 40 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 fish and wildlife management program [that] includes . . . [t]he design, construction, operation, and maintenance of facilities to rehabilitate fish habitats.” Pub. L. No. 98-541, 98 Stat. 2721 (emphasis added). Additionally, the Act authorizes the Secretary to implement “other activities as the Secretary determines to be necessary to achieve the long-term goal of the program [of restoring fish and wildlife populations].” Id. The operation of the TRD includes modification of flow rates and, thus, Plaintiffs’ argument that it only included non-flow measures is without merit. The Trinity River Basin Fish and Wildlife Management Reauthorization Act of 1996 (“1996 Act”), Pub. L No. 104-143, 110 Stat. 1338, amended the Trinity River Basin Fish and Wildlife Management Act of 1984 and expanded the reach of the authorized fishery restoration activities from just the Trinity River to the Trinity River and the lower Klamath River.11 1996 Act; see also Trinity I, 52 F. Supp. 3d at 1061 (“The scope of the 1984 Act’s rehabilitation mandate was expanded from its original call to rehabilitate fish habitat in ‘the Trinity River between Lewiston Dam and Weitchpec’ to call for rehabilitation of fish habitat in ‘the Trinity River between Lewiston Dam and Weitchpec and in the Klamath River downstream of the confluence with the Trinity River.’”) Specifically, section 2(a) was amended so that it states: [T]he Secretary . . shall formulate and implement a fish and wildlife management program for the Trinity River Basin designed to restore the fish and wildlife populations in such basin to the levels approximating those which existed immediately before the start of the construction [of the TRD] and to maintain such levels. . . . The program shall include the following activities: (1) The design, construction, operation, and maintenance of facilities to – (A) Rehabilitate fish habitats in the Trinity River between Lewiston Dam and Weitchpec and in the Klamath River downstream of the confluence with the Trinity River. *** 11 The program authorization set forth in the 1996 Act is a long-term, or permanent, general grant of authority despite the established expiration term for the authorization for appropriations and provides in general authority “[s]uch other activities as the Secretary determines to be necessary to achieve the long-term goal of the program” which include actions to restore habitat in the lower Klamath River such as the proposed fall flow releases. Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 41 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (3) Such other activities as the Secretary determines to be necessary to achieve the long- term goal of the program. 1996 Act (emphasis added indicating new language added by the amendment). Both the House and Senate noted that this change was intended to authorize restoration activity in the Klamath River below the confluence with the Trinity River. S. Rpt. 104-253, 104th Cong. at 3 (1996) (“This section authorizes restoration activity in the Klamath River below its confluence with the Trinity River . . . .”); H.R. Rpt. 104-395, 104th Cong. at 7 (1995) (“Section 3 also authorizes restoration activity in portions of the Klamath River . . . .”).12 In Trinity I, the Court suggested that Reclamation could have relied upon the 1996 Reauthorization Act as authority to make the augmentation releases. 52 F. Supp. 3d at 1061-62. While Reclamation did not rely upon the 1995 Reauthorization Act as authority to make the FARs challenged in Trinity I, it has done so for the 2015 FARs. See AR1314, 1365-66. In Trinity I, the Court also implied that this statute is not geographically limited in the same manner as the court had interpreted the 1955 Act, and instead serves as “an acknowledgement that rehabilitation of fish and wildlife in the Trinity River Basin may require rehabilitation of fish habitat in the lower Klamath River.” Id. The 1984 Act, as amended, authorizes the FARs. Plaintiffs’ last two arguments for why the Trinity River Basin Fish and Wildlife Management Act does not authorize the FARs are that other legislation, specifically Section 2 of the 1955 Act and the CVPIA, authorize flow-based measures to improve conditions for fish in the lower Klamath River. See Dkt. 99 at 31. Plaintiffs’ arguments that Section 2 of the 1955 Act and the CVPIA do not authorize the FARs and that their existence shows that the Trinity River Basin Fish and Wildlife Management Act does not authorize the FARs is internally contradictory. D. The Fish and Wildlife Coordination Act Section 633 of the Fish and Wildlife Coordination Act (“FWCA”) provides that “whenever the waters of any stream or other body of water are impounded, diverted, [or] 12 As explained above, the 1996 amendments also redefined the 1984 Act’s restoration goals: fishery restoration would be measured not only by returning anadromous fish spawners, but also by the ability of tribal and non-tribal (commercial and sport) fishers to participate fully in the benefits of restoration through meaningful harvest opportunities. Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 42 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 otherwise controlled or modified … by any department or agency of the United States, adequate provision … shall be made for the use thereof, … for the conservation, maintenance, and management of wildlife resources thereof, and its habitat thereon, including the development and improvement of such wildlife resources.” 16 U.S.C. § 663. The water to be used for the FARs is impounded, diverted, controlled, and modified by Reclamation. Accordingly, Reclamation is authorized to provide for the conservation, maintenance, and management of wildlife resources and habitat and has done that through the FARs. Accordingly, the FWCA authorizes the FARs. Section 661 of the FWCA provides the Secretary with broad authority “to provide assistance to, and cooperate with, Federal, State, and public or private agencies and organizations” to take actions for the “protection, rearing, and stocking of all species of wildlife, resources thereof and their habitat, in controlling losses of the same from disease or other causes.” 16 U.S.C. § 661 (emphasis added). The FWCA gives Reclamation the authority to take “actions, directly or by providing financial assistance . . . regarding the construction or continued operation and maintenance of any Federal reclamation project” to among other things “improve instream habitat.” Departmental Manual, 255 DM 1. Under this section of the FWCA and through the delegation of authority from the Secretary, Reclamation is authorized to assist the Hoopa Valley Tribe, the Yurok Tribe, other federal agencies, and Humboldt County in taking actions that improve fish habitat that is affected by a Reclamation Project. As the Trinity and lower Klamath Rivers are affected by the CVP and the TRD in particular, Reclamation is taking action to provide the FARs that improve the habitat for the migrating salmon and assist in controlling disease that have been shown to lead to a significant die off in this species.13 V. Reclamation did not violate Reclamation Law in making the 2015 FARs Plaintiffs argue that “Reclamation unlawfully relied on a 1959 contract with Humboldt County to make the FAR.” Dkt. 99 at 37; see also id. at 37-42. The 2015 EA recognizes that “Humboldt County sent a letter dated May 19, 2015, to the Secretary of the Interior requesting that its contract amount of not less than 50,000 af of water be provided to address fisheries needs 13 Additionally, CVPIA §3406(b)(1) could provide authority for the FARs and tribal trust responsibility provides supplemental authority. See AR1367-68. Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 43 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and to protect human health and safety in the Klamath/Trinity river system” and that the Hoopa Valley Tribe and the Yurok Tribe requested that the “Humboldt County contract amount” be made available for the FARs, AR1312, and the FONSI recognizes that the FARs are consistent with the 1959 contract. However, that consistency does not undermine Reclamation’s reliance on proviso 2 of the 1955 Act as the source of authority for releasing the 50,000 af of water requested by Humboldt County and other downstream water users.14 AR1314. VI. Reclamation complied with NEPA with regard to the FARs A. Reclamation complied with NEPA in making the 2014 FARs In making its decision to make the 2014 FARs, Reclamation complied with the regulations promulgated by the Council on Environmental Quality (“CEQ”) and the Department of the Interior (“DOI”) for compliance with the National Environmental Policy Act (“NEPA”) in emergency circumstances. The CEQ regulations recognize that there are situations where emergency circumstances make it necessary to take an action without first complying with all of the provisions of NEPA. See 40 C.F.R. § 1506.11. CEQ guidance makes clear that when there are “situations involving immediate threats to valuable natural resources” agencies “must consider whether there is sufficient time to follow the procedures for environmental review established in the CEQ [NEPA] Regulations.” Emergencies and the National Environmental Policy Act, Memorandum for Heads of Federal Departments and Agencies, May 12, 2010, available at https://ceq.doe.gov/ceq_regulations/Emergencies_and_NEPA_Memorandum_12May2010.pdf; see also 43 C.F.R. § 46.150 (DOI regulations regarding emergency responses which provide that if an agency “determines that an emergency exists that makes it necessary to take urgently needed actions before preparing a NEPA analysis and documentation” the agency can first “take those actions necessary to control the immediate impacts of the emergency” in order to mitigate harm to, inter alia, “important natural, cultural, or historic resources.”). Here, realizing that it did not have enough time to complete NEPA analysis prior to taking making emergency FARs based on 14 Regardless of whether Reclamation relied upon the 1959 contract with Humboldt County, the contract does not violate Reclamation law. The contract specifically implements the proviso 2 authority of the 1955 Act, an Act of Congress that is part and parcel of Reclamation law. Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 44 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 worsening conditions, Reclamation complied with CEQ requirements by consulting with the Hoopa Valley and Yurok Tribes, the U.S. Fish and Wildlife Service, NOAA Fisheries, the California Department of Fish and Wildlife, and Central Valley Project water users, notifying the public of the action, preparing a decision document, and notifiying CEQ as soon as feasible. AR5170-72; 5178-81; 5182. 1. The unanticipated conditions that occurred in the lower Klamath River in August 2014 constituted an environmental emergency Plaintiffs contend that Reclamation should not have operated under the emergency provision of the NEPA regulations because there was no “emergency.” Plaintiffs base this argument on the fact that low flows were projected in advance and because Reclamation has made FARs in past years. Plaintiffs seem to ignore the fact that each year Reclamation has decided to make FARs, it has done so based upon particular conditions that have developed during those years. As the record shows, during July 2014, Reclamation considered the projected conditions in the lower Klamath River for August 2014 and decided not to make preventative releases. AR5178. When faced with requests for reconsideration from tribal, State, and local entities, Reclamation stated that it would only reconsider this decision if scientific merit demonstrated that the releases were needed. AR5179. It was not until actual conditions differed from what was projected and suggested that there was an increased risk of a significant fish die-off that Reclamation determined that an immediate, emergency response was necessary. Although low flows had been projected for August 2014 in the lower Klamath River, flows from Klamath River tributaries were lower than expected, including at or near zero in some cases. AR5179. Additionally, during the first weeks of August, there were observations of particularly high temperatures, fish crowding and indications of fish stress, columnaris infections, dead fish and the presence of blue-green algae and associated toxins in the lower Klamath River. AR 5171; 5179-81; see also AR5135-42. Considering the development of these conditions in the days immediately before Reclamation began the 2014 FARs, see AR5182, Reclamation reasonably concluded that an emergency existed and it began making FARs on August 23, 2014. AR5179. Plaintiffs argue that Natural Resources Defense Council, Inc. v. Winter, 527 F. Supp. 2d 1216 (C.D. Cal. 2008) supports their position here. Winter is not applicable here. In Winter, the court found that the defendants and CEQ had not identified any changed circumstances that Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 45 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 would justify the invocation of the emergency provision of NEPA. 527 F. Supp. 2d at 1228. Here, the opposite is true - Reclamation identified unanticipated, changed circumstances that required immediate action to prevent the loss of valuable natural resources. 2. Reclamation has complied and continues to comply with CEQ and DOI regulations governing NEPA compliance in an emergency CEQ guidance provides that in emergency circumstances, an agency should not delay immediate actions to protect valuable resources and should consult with CEQ as soon as feasible. Emergencies and the National Environmental Policy Act, May 12, 2010. For actions that are expected to have less than significant environmental impacts and where the agency would normally prepare an EA, when emergency action is necessary, “[a]gencies must continue their effort to notify and inform the affected public, state, regional, Federal and tribal representatives [and] comply with the CEQ NEPA regulation requirements for content, interagency coordination and public involvement to the extent practicable.” Id. (emphasis added). Where an agency has made the determination that emergency action is necessary, DOI regulations require that the agency “take into account the probable environmental consequences of these actions and mitigate foreseeable adverse environmental effects to the extent practical” and document, in writing, the agency determination that an emergency exists and the responsive action to be take in response to that emergency. 43 C.F.R. § 46.150(a)-(b). That is exactly what Reclamation did here. The August 22, 2014 Decision Memorandum succinctly describes the emergency conditions present, documents the determination that an emergency exists, and describes the responsive action to be taken. See AR5170-72. It explains that Reclamation consulted with the Hoopa Valley and Yurok Tribes, the U.S. Fish and Wildlife Service, NOAA Fisheries, the California Department of Fish and Wildlife, and Central Valley Project water users in making its decision and notified the public of the action. AR5170-72. Reclamation also prepared a second written document on August 25, 2014 further explaining the decision rationale as soon as and to the extent practicable. AR5178-81. Furthermore, it consulted with CEQ as soon as feasible. See AR5182. This is all that is required. Plaintiffs suggest that Reclamation was required to prepare some additional documentation of its decision to make the 2014 FARs, see Dkt. 99 at 47, but that is not the case. The CEQ Regulations Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 46 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that allow for agencies to consult with the CEQ regarding alternative arrangements for NEPA compliance apply only where the agency has found that action to be taken has “significant environmental impact.” See 40 C.F.R. § 1506.11. For actions where the agency does not expect “significant environmental impacts,” CEQ guidance instructs that preparation of a “focused, concise EA” is appropriate. Emergencies and the National Environmental Policy Act, May 12, 2010. In compliance with the regulations, Reclamation notified CEQ of the emergency situation, transmitted the key decision documents to it as the earliest feasible opportunity, and began the process of consultation with CEQ regarding further NEPA compliance. See AR5182. Reclamation began preparing a focused and concise EA as instructed by CEQ Guidance as the 2014 FARs were ongoing, but the 2014 FARs ended before it could be completed. Because the proposed action was completed, an EA for the 2014 FARs would not have served any purpose. Furthermore, Reclamation completed an EA before making any additional FARs following the 2014 emergency situation. See AR1305-50. B. Reclamation complied with NEPA in making the 2015 FARs Plaintiffs argue that Federal Defendants violated NEPA by failing to take a hard look at environmental impacts caused by the 2015 FARs and by failing to prepare an EIS for the action. Contrary to Plaintiffs’ arguments, Reclamation complied with NEPA through its EA and FONSI. In these documents, Reclamation evaluated the potential impacts of the FARs and reasonably concluded that there was no potential for significant impacts on the environment and accordingly, Federal Defendants were not required to prepare an EIS. In compliance with NEPA, Reclamation prepared a draft EA, which described the proposed action, examined an alternative action, and considered the environmental impacts. Reclamation released the draft EA for public comment, and after fully considering all of the comments it received (including comments from Plaintiffs), it finalized the EA and signed a FONSI on August 20, 2015. The EA and FONSI demonstrate that Reclamation took a hard look at the proposed action and reasonably concluded that while there existed the potential for adverse impacts, those potential impacts in 2015 simply do not rise to a level of significance that Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 47 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 necessitates an EIS. As the Ninth Circuit has explained, “[j]udicial review of agency decision- making under NEPA is limited to the question of whether the agency took a ‘hard look’ at the proposed action as required by a strict reading of NEPA’s procedural requirements. Bering Strait Citizens for Resp. Res. Dev. v. U.S. Army Corps of Eng’rs, 524 F.3d 938, 947 (9th Cir. 2008). In challenging a FONSI, a plaintiff must raise “substantial questions whether a project may have a significant effect” on the environment. Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998) (citation omitted). Plaintiffs have failed to meet their burden here. Contrary to Plaintiffs’ contentions, there are no substantial questions about whether the 2015 FARs will have a significant effect on the human environment. Although Reclamation’s NEPA analysis revealed that there could be some adverse effects, “it does not follow that the presence of some negative effects necessarily rises to the level of demonstrating a significant effect on the environment.” Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1240 (9th Cir. 2005) (emphasis added). As long as the EA took a reasonable approach in addressing the relevant NEPA intensity factors15 it must be upheld, Bering Strait, 524 F.3d at 956–57, and none of the issues that Plaintiffs have identified casts any doubt on the validity of the EA. Plaintiffs point to three areas in which they claim the 2015 EA’s impacts analysis was allegedly inadequate: (1) potential impacts to CVP water supply, (2) potential impacts on conditions within the CVP service area, specifically cold water pool management, and (3) potential cumulative effects. Contrary to Plaintiffs’ arguments, Reclamation acknowledged that there was the potential for some impacts, but after taking a hard look and fully considering each of these potential impacts, reasonably determined that the potential impacts do not rise to a level of significance that necessitates an EIS. Those judgments involved the exercise of agency 15 In determining whether an impact is significant, NEPA implementing regulations require consideration of both “context” and “intensity.” 40 C.F.R. § 1508.27. “Context” refers to the area of “the affected region, the affected interests and the locality,” id. § 1508.27(a), while “intensity” “refers to the severity of the impact.” Id. at § 1508.27(b). The NEPA regulations direct Reclamation to evaluate, inter alia, the “degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks,” and “the degree to which the action may adversely affect an endangered or threatened species or its habitat.” Id. at § 1508.27(b)(5),(9). Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 48 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 scientific and technical expertise, which is entitled to deference. See Delta Smelt, 747 F.3d at 610; United States v. Alpine Land & Reservoir Co., 887 F.2d 207, 213 (9th Cir. 1989). With regard to the potential impacts to CVP water supply, the EA acknowledges that there is a possibility that some of the water volume used to implement the FARs may not be available for other uses in the future, including CVP water deliveries. AR1342; 1356-57. The EA explains that the amount of water that is needed for the FARs is small in proportion to the total amount of water used for CVP deliveries and that allocations are determined by supply conditions throughout the whole CVP system. AR1342. Consequently, any impacts to those individual water users would be relatively small. Id. An EIS is not required any time there are impacts, but rather, only when there are significant impacts. Reclamation reasonably concluded that any impacts on CVP water supply would not rise to the level of significance to warrant an EIS. With regard to potential impacts on conditions within the CVP service area, particularly cold water pool management, as just noted, the FARs will not have a significant impact on the supply to CVP contractors and thus, they will not have a significant impact on the conditions within the service area. Id.; see also AR1341 (noting that diversion from the Trinity Reservoir to the Sacramento River Basin make up only a small fraction of the total water used and effects to environmental justice would be minor even if 2016 is another drought year). The EA acknowledges that if drought conditions persist, the FARs could reduce the cold water pool available in the Trinity Reservoir, but the impacts would not be significant because adequate cold water was available in the Shasta Reservoir to meet Sacramento River needs. AR1346. The FONSI notes even in the unlikely event that emergency releases were needed and the full 88,000 AF was used for the FARs, the reduction in “the cold water pool in Trinity Reservoir would not jeopardize cold water resources for immediate use in meeting temperature targets.” AR1359. The EA explains in detail Reclamation’s use of the Sacramento River Temperature Model (“SRTM”) to estimate the quantity of cold water that would remain in storage and available for the Sacramento River after the FARs. AR1333. Reclamation is permitted to rely upon its own modeling and is entitled to deference when it does so. See Marsh, 490 U.S. at 378; see also Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 49 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Delta Smelt Appeal, 747 F.3d at 621 (Court will “reject an agency’s choice of scientific model only when the model bears no rational relationship to the characteristics of the data to which it is applied.”) (internal citations omitted). This SRTM modeling showed that an adequate cold water supply would be available to meet cold water needs in 2015, and that “thermal protection for coho salmon during late September would still be achievable.” AR1333, 1334, 1337, 1358. With regard to cumulative impacts of the 2015 FARs, although there have been some incremental effects on CVP operations, many of the impacts are predominantly the result of the extended severe drought conditions and the limitation of CVP supplies system wide rather than specifically the result of the FARs. Dkt. 40-4, Decl. of Ronald Milligan in Support of Opp. (“Milligan Decl.”) at ¶ 3. The cumulative effect of the FARs have certainly contributed to these impacts, but none of the effects can be solely attributed to the prior augmentation actions. Id. The 2015 EA acknowledged that the FARs could continue to contribute to impacts to the CVP as a whole, but the exact nature of the potential effect was unknown. Id. at ¶ 4. If runoff conditions improved to above average or wet in 2016, the incremental effects could be delayed or eliminated. Id. The EA acknowledged that if conditions did not improve, impacts could include increased river temperatures, reduced ability to meet Delta water quality objectives, and/or reduced CVP water supplies. Id. While there have been cumulative impacts to the storage in Trinity Reservoir from the FARs, there is no discernible impact to the Plaintiffs’ interests in 2015 and there is no identifiable impacts from the FARs in 2016. Thus, there are no significant cumulative impacts from the 2015 FARs and a FONSI was appropriate. Finally, even if the Court finds in Plaintiffs’ favor on their NEPA claim, the Court should not enjoin future FARs which are designed to decrease the likelihood of a large fish die-off. As this court previously recognized, “even in the presence of likely success on the merits of a NEPA claim, it is not appropriate to issue injunctive relief where doing so would cause more environmental harm than it would prevent.” Trinity I, ECF No. 91 at 12 (citing Save Our Ecosystems v. Clark, 747 F.2d 1240, 1250 (9th Cir. 1984); Am. Motorcyclist Ass'n v. Watt, 714 F.2d 962, 966 (9th Cir. 1983) (holding public interest does not favor granting an injunction where “government action allegedly in violation of NEPA might actually jeopardize natural resources”); Alpine Lakes Prot. Soc'y v. Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 50 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Schlapfer, 518 F.2d 1089, 1090 (9th Cir. 1975) (denying injunctive relief in NEPA case where more harm could occur to forest from disease if injunction was granted). Without the FARs, there is an increased risk of a fish die-off that would have lasting impacts to the species for many years to come. AR1336-37. VII. Reclamation complied with its ESA and MSA obligations. Plaintiffs contend that Reclamation violated section 7 of the ESA by failing to “properly consult with NMFS regarding the 2014 and 2015 FARs ….” Dkt. 99 at 50. They further contend that Reclamation violated the MSA by making the 2014 and 2015 FARs without first performing consultation required under that statute. Dkt. 99 at 60-63. As discussed below, Reclamation properly consulted and Plaintiffs’ arguments to the contrary are factually and legally incorrect. A. Plaintiffs’ ESA and MSA challenges to the 2014 FARs are meritless. In 2014, Reclamation and NMFS biologists, along with other federal, state, and Tribal representatives, worked closely together to determine whether there was a basis for the 2014 decision to implement flow-augmentation releases. See, e.g., AR5063-64; 5065; 5071-74; 5090- 93; 5097-98; 5100; 5125-34; 5174-76. In this process, Reclamation appropriately considered the action’s potential effects to listed salmon. AR5168. As part of memorializing that consideration, Reclamation prepared a Memorandum on its Endangered Species Act Section 7 Compliance for the 2014 FARs that summarized its consideration. AR5167-69. The starting point for Reclamation’s consideration was its 2006 request that NMFS “prepare a BiOp assessing the impact of continued and future CVP/SWP operation on Delta Salmonid Species,” Locke, 776 F.3d at 988, and its 2008 BA, which included the “[p]roposed operation of the Trinity River Division [TRD] of the CVP ….” AR5168. Reclamation correctly noted that the 2009 BiOp had, at that time, been “remanded to NMFS,” and thus Reclamation considered whether implementing the proposed 2014 FARs prior to receiving a new BiOp on CVP operations would violate ESA section 7(d), which governs while the agencies are in consultation. AR5168. Reclamation reasoned that the 2014 FARs would not violate section 7(d), because the releases “maintain the status quo as to listed species in that Reclamation still Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 51 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 retain[ed] discretion to provide flow and temperature conditions that are consistent with currently anticipated conditions with respect to the listed fish.” AR5168-69. Reclamation acknowledged that the releases would be a “deficit” in Trinity Reservoir, but only until the reservoir filled or Safety-of-Dam releases occur, both of which Reclamation concluded were “likely” to occur “before issuance of the new CVP/SWP Opinion” on February 1, 2018. AR5168-69; Salmonid Remand Order at 3. In addition, Reclamation also recognized that the Court’s Salmonid Remand Order did not vacate the 2009 BiOP/RPA, which governed CVP operations. AR5168-69. Accordingly, Reclamation considered whether implementing the 2014 FARs was “consistent with” RPA Action I.2.2.C, which specifically governed operations and “exception procedures for EOS storage of 1.9 MAF or below” in Shasta Reservoir. Id. Reclamation concluded it was, reasoning that the 2014 FARs would end in mid-September, and that 2014 Trinity Reservoir exports were being “managed to conserve the cold water pool in Shasta Reservoir in anticipation that the end of September storage in Shasta will be less than 1.9 MAF.” AR5169. Reclamation explained that flow-augmentation releases were expected to allow temperature targets in the Trinity River “to be met,” and the temperature impact in the upper Sacramento River to be “less than 0.1 [degree] F.” AR5167-68. Accordingly, Reclamation concluded that the 2014 releases were consistent with the 2009 BiOp, and would also have no adverse effects on EFH. Dkt 64 ¶¶ 142, 144. Reclamation’s consideration of the effects of the 2014 FARs complied with its obligations under the ESA and the MSA and should be upheld. Plaintiffs disagree. They argue that Reclamation violated the ESA in undertaking the 2014 FARs for two related reasons. First, they assert that Reclamation “had not yet initiated formal consultation as part of the remand process for the 2009 BiOp, so it was not in consultation with NMFS regarding CVP operations.” Dkt. 99 at 54. Accordingly, they contend, Reclamation’s conclusion that the 2014 FARs would not violate section 7(d), which applies “[af]ter initiation of consultation,” was improper, because “Reclamation never initiated consultation with NMFS regarding the 2014 FARs.” Id. at 54-55. Given this alleged failure to consult, Plaintiffs contend that Reclamation also violated the consultation requirement of the Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 52 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MSA. Id. at 61-62. Plaintiffs further suggest that because information post-dating the 2014 FARs allegedly shows the releases effected Essential Fish Habitat, the 2014 FARs were subject to MSA consultation in 2014, even before those data existed. Id. at 62. The government addresses each contention below. None has merit. Plaintiffs’ argument that Reclamation failed to “initiate[] formal consultation as part of the remand process for the 2009 BiOp” misses the mark, because there was no such requirement of the remand. The Salmon Remand Order only instructed NMFS to “complete ESA consultation … and its final [BiOp]” by a prescribed deadline. Salmon Remand Order at 3. But it did not require Reclamation to start that consultation. Id. In fact, the Salmon Remand Order did not require Reclamation to take any ESA action at all. That was no oversight. As discussed below, neither Reclamation’s 2006 initiation of consultation, nor its 2008 BA, were even at issue in the Consolidated Salmonid Cases. Locke, 776 F.3d at 988. Thus, there was no basis to remand them, and Plaintiffs’ assertion to the contrary is belied by the Salmon Remand Order’s plain language. The notion that Reclamation would need to initiate the CVP/SWP consultation following the Salmon Remand Order also finds no support in law. The APA instructs a reviewing court to “hold unlawful and set aside” the agency action “found to be ... without observance of procedure required by law.” 5 U.S.C. § 706(2)(D). Despite the myriad issues raised in the Consolidated Salmonid Cases, there was no dispute that Reclamation properly initiated formal consultation on the continued and future CVP/SWP operations. Locke, 776 F.3d at 988; see 50 C.F.R. § 402.14(c). Instead, in the Consolidated Salmonid Cases, the only action (erroneously) “found to be” unlawful was the act that concluded ESA consultation, namely, NMFS’s opinion on the effect of CVP/SWP operations on the Delta Salmonid Species, which was subsequently upheld. Because there is no support for the notion that the APA’s “set aside” instruction could stretch beyond the “action” “found to be” legally insufficient, there is no basis to invalidate Reclamation’s 2006 initiation of consultation. To that end, Plaintiffs’ assertion that “[n]othing … suggests” that a remand of a biological opinion constitutes “reinitiation of consultation,” Dkt. 99 at 54, is a red herring. The issue is not whether remand of a consulting agency’s action satisfies 50 C.F.R. § 402.16. It is Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 53 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 whether the APA could allow a court to invalidate and remand an agency’s legally sufficient and unchallenged action (Reclamation’s initiation of formal consultation under 50 C.F.R. § 402.14). Plaintiffs provide no case law supporting such a reading of the APA. Nor have Federal Defendants located such a case. Instead, even in extraordinarily “specific” orders prescribing a “detailed” remand process “spell[ing] out the procedures [NMFS] and the Action Agencies must follow in consulting on a revised or new biological opinion,” and “mak[ing] it clear to NOAA and the Action Agencies what is required of them on remand” to “meet[] the procedural requirements of the ESA,” courts have not required initiation of consultation following remand. See e.g., NWF v. NMFS, 2005 WL 2488447 (D. Or. Oct. 7, 2005). Thus, while there may be no document where Reclamation specifically requested to “initiate” consultation on this particular action, there was also no reason for it. In short, Reclamation lawfully initiated consultation on all TRD operations twelve years earlier and the only ESA obligation flowing from the Salmon Remand Order was that NMFS finish consultation with a new CVP/SWP opinion. At best, Plaintiffs are placing form above substance; in actuality, they are simply ignoring the realities at play before the agencies. Plaintiffs’ compound suggestion that the record is “devoid” of evidence showing that Reclamation “[i]nitiated consultation with NMFS regarding the 2014 FARs [(i)] as part of the 2009 BiOp or [(ii)] as part of the remand process for the 2009 BiOp” is unavailing. The latter contention fails for the reasons discussed supra. Because no party challenged Reclamation’s initiation of consultation in the Consolidated Salmonid Cases, so there was no need to do it again. The former suggestion is similarly without merit. First, the comprehensive 2009 BiOp addressed Reclamation’s long-term operations of the CVP and TRD operations are unquestionably part of CVP operations that Reclamation consulted with NMFS upon. Reclamation “initiated” that consultation in 2006. In 2014, Reclamation recognized its ESA obligations and considered whether the 2014 FARs were “consistent with” the 2009 BiOp (which had not be vacated) and RPA and section 7(d) (which applied because the agencies were in consultation on long-term CVP operations). AR5169. This approach was appropriate, see Buckeye Forest Council, 378 F. Supp. 2d at 842-43, especially in the complex setting of CVP Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 54 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 operations, where every operational uncertainty cannot be predicted in advance or require Reclamation to stop and initiate consultation on operations that were considered in the context of the 2009 BiOp. In sum, Plaintiffs’ suggestion that the agencies were simply waiting until Reclamation asked NMFS to initiate their CVP/SWP consultation again, ultimately, is belied by the plain language of the Salmon Remand Order, black-letter principles of administrative law, the procedural history surrounding the CVP consultation, the record, and common sense. Plaintiffs’ suggestion that Reclamation violated the MSA because the 2014 FARs “did in fact contribute to adverse effects on habitat,” Dkt. 99 at 62, is without merit and invites error. Specifically, it wrongly asks the Court to undertake review if the agency’s decision proved correct in hindsight, rather than properly determine “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error or judgment.” Delta Smelt Appeal, 747 F.3d at 601. B. Plaintiffs’ ESA and MSA challenges to the 2015 FARs are meritless. Plaintiffs assert that Reclamation violated the ESA because it “did not … actually initiate consultation on the 2015 FARs.” Dkt. 99 at 58. Instead, Plaintiffs suggest Reclamation “invented another avenue for relying on the 2009 BiOp,” namely, “relying on the drought contingency provisions of the 2009 BiOp RPA.” Plaintiffs suggest that Reclamation used this applicable provision of the RPA to “circumvent” ESA consultation and that it failed to “analyze … the potential effects of the 2015 FARs on ESA-listed species.” Dkt. 99 at 56-58. Plaintiffs’ arguments are without merit. The record shows that Reclamation recognized its ESA obligations, see e.g., AR1347-1348, and specifically “reviewed the effects of the proposed [2015 FARs] on listed species in the Sacramento River.” AR1101. In fact, among Reclamation’s analyses was its Biological Review: Potential Flow Augmentation Action from Lewiston Dam to Protect Adult Salmon in the Lower Klamath River. AR1104. In it, Reclamation made clear that “the effects of implementing the proposed Action on Sacramento River species are … evaluated.” AR1105. Reclamation explained that for the Sacramento River basin, there “will be no flow-related effects to species in the Upper Sacramento River.” AR1111. Because Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 55 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “there are no changes to the volume or timing of diversions to the Sacramento River basin as a result of implementing the proposed action,” Reclamation “focuse[d]” the Biological Review on “potential water temperature impacts” to the species. AR1105. To examine such “[t]emperature- induced egg mortality and approximate egg-to-fry survival,” Reclamation used a “dynamic simulation framework developed by Cramer Fish Science,” Plaintiffs’ own consultant in the Consolidated Salmonid Cases. AR1107. Reclamation modeled “all Trinity operational scenarios being considered,” AR1107, and modeling showed that “water temperature differences are not expected to have any measurable impacts on winter-run Chinook salmon, spring-run Chinook Salmon and steelhead or their designated critical habitats in the Upper Sacramento River between Keswick Dam and Bend Bridge.” AR1111. The releases also “would not affect the quantity and quality (i.e. water temperature) of flow suitable for transbasin diversions to Whiskeytown Reservoir in 2015,” AR1338, and “[f]or temperature-induced egg mortality,” there was “no measurable impact to winter-run Chinook in 2015 from implementation of the Proposed Action.” AR1338-39. The “overall influence of the [2015 FARs] will have a minimal change in the water temperature-related effects of Trinity River flow operations on winter-run and spring- run Chinook Salmon and steelhead … in the Sacramento River, and no effect to Green Sturgeon.” AR1112-13; AR1345 (“there are no adverse impacts associated with implementing the Proposed Action in 2015”). Reclamation concluded that its Biological Review and “associated modeling output, supports the finding the proposed operation of the CVP and SWP, incorporating the [2015 FARs] will not result in any changes in reservoir operations or releases in the Sacramento, American, or Stanislaus rivers, or in Delta outflow conditions … from those included in the Contingency Plan for July-November 15, 2015 ….” AR 1101. Thus, “[b]ased on the … Biological Review, … the water temperature-related effects … on listed salmonids … and their critical habitats in the Sacramento River will not result in violation of the incidental take limit in the NMFS 2009 BiOp, nor … jeopardize the continued existence of the listed species or destroy or adversely modify … critical habitat.” AR1101. And “[a]ny incidental take” would be “within the existing incidental take limits in the NMFS 2009 BiOp.” AR1102. Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 56 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs assert that NMFS’s concurrence “says nothing about the potential effects of the 2015 FARs,” but was instead limited to a concurrence that the action was consistent with RPA Action I.2.3.C Dkt. 99 at 57. There is no dispute, however, that Reclamation proposed the releases as part of the drought contingencies expressly provided for in that action, AR1369-70, or that extreme drought conditions warranted application of those procedures. AR1100. But Plaintiffs are wrong to suggest the concurrence was so narrow. They ignore the fact that Reclamation expressly sought and received NMFS’s concurrence that the 2015 FARs action was broadly “consistent with the NMFS 2009 BiOp,” AR1370, and was “within the limits of the Incidental Take Statement of the NMFS 2009 BiOp ….” AR1131. Reclamation’s modeling, analyses, written biological reviews and explanations, shows that Reclamation considered the effects of the 2015 FARs on the Delta Salmonid Species. As NMFS stated, it “reviewed the analysis and concur[red] with” the “conclusions” of the Biological Review, AR1370, which provided “an effects analysis on the adjustments” to CVP operations from the 2015 FARs. AR1370. NMFS concurred with the Biological Review’s analysis, because, inter alia, the 2015 FARs “would not deplete the cold water resources for immediate use this year;” “will not appreciably change the water temperature-related effects … on the winter-run and [CV] spring- run Chinook salmon and [CCV] steelhead … in the Sacramento River;” and was expected to have no effect on green sturgeon. AR1370. Plaintiffs suggest that this extensive inter-agency consideration, undertaken in the context of the long-term CVP operations consultation, was an “invented” procedure to “circumvent” ESA consultation. Dkt. 99 at 56. That is untrue. While section 7(a)(2) requires that each Federal agency insure that any action is not likely to jeopardize the listed species, 16 U.S.C. § 1536(a)(2), that provision does not speak to the manner in which ESA consultation must be conducted. Thus, the ESA only required Reclamation to engage in consultation in a manner necessary to “insure” that specific operational activities carried out under its TRD operations would not be likely to jeopardize the continued existence of listed species. That occurred here. The 2009 BiOp covered “all activities related to the long-term operations of the CVP and SWP,” RJN Ex. 2 at 728, including Reclamation’s operation of the Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 57 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TRD, and the Ninth Circuit upheld the validity of the 2009 BiOp/RPA as complying with the ESA. Locke, 776 F.3d at 1010. The specific “release of water from Trinity Reservoir [at issue here]” is “[a] component of the ongoing operation of the CVP, and the Trinity Division of the CVP in particular ….” AR7334. In other words, the 2015 FARs are part of the ongoing operation of the TRD, which is part of the CVP, and is “operated in coordination with all the other CVP and State Water Project facilities.” AR1345; AR7334. Thus, when Reclamation proposed the 2015 FARs as part of “ongoing operation of the CVP,” it consulted as appropriate in the context of its CVP/SWP consultation, seeking and obtained NMFS’s written concurrence that were consistent with the 2009 BiOp/RPA and that formal consultation was therefore not required. AR1370. This approach fulfilled Reclamation’s ESA obligations. Locke, 776 F.3d at 983-86. Plaintiffs also suggest that the record purportedly lacked any discussion of the “potential effects on ESA-listed species from the 2015 FARs in the following year, for temperature management in 2016 ….” Dkt. 99 at 58. That too is untrue. For instance, Reclamation recognized that the 2015 FARs “may reduce the available cold water resources used to meet temperature objectives in the Sacramento River in 2016.” AR1339. Similarly, Section 4.1.2.1 of Reclamation’s Final EA specifically addressed “Coldwater Storage Availability and Water Temperatures” in 2015 and 2016. AR1333. Reclamation explained that temperature modeling showed that the 2015 FARs were “not expected to adversely influence the water temperatures of water … that may be diverted to the Sacramento River in 2015,” and that modeling also “look[ed] further into the future,” including to the end of July 2016. AR1333-34. Reclamation discussed future forecasts of water storage, and acknowledged the uncertainties associated with such predictions, id.: If Trinity Reservoir fills during 2016, there would be no effects to water resources available for all potential purposes. In contrast, if Trinity Reservoir does not fill in 2016, some water volume, up to the amount released for supplemental Klamath River flows, may not be available for other potential purposes. [¶] Implementation of the Proposed Action would not affect water supply allocations managed as part of the CVP in 2015, or water operations within the Central Valley…. The extent that the flow augmentation releases would affect the 2016 water supply and water allocations is dependent on the water year 2016 hydrology and operational objectives. However, long range predictions of the 2016 hydrology are not expected to be accurate at the time writing this document to be meaningful…. Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 58 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [A]nd as stated at the start of Water Resources section, using forecasts this far into the future become speculative in nature. Therefore, projecting possible storage in 2016 cannot be determined with any precision …. AR1335-36; see AR1345 (explaining “[t]he TRD of the CVP is operated in coordination with all the other CVP and State Water Project facilities,” and that “[d]ue to the inherent difficulty and uncertainty with forecasting future water supply conditions within this large geographic area, it is not possible to meaningfully evaluate how a potential slightly lower Trinity Reservoir storage in 2015 may exacerbate system-wide supply conditions in the future”). NMFS similarly noted that “long range prediction of the 2016 hydrology are speculative” and “very difficult to predict.” AR1371. Reclamation also considered the potential effects on ESA-listed species from the 2015 FARs in 2016; for instance: Depending on the details of future operations and the fill pattern at both reservoirs, the Proposed Action may reduce the available cold water resources used to meet temperature objectives in the Sacramento River in 2016. If the drought persists and the full 88 TAF was used, changes to the ability to achieve temperature objectives would be expected, which could impact ESA-listed salmon and steelhead. It is unlikely the full 88 TAF would be released, and thus the impacts are equally unlikely. AR1339. At bottom, Reclamation lawfully consulted with NMFS on the potential effects of the 2015 FARs on ESA-listed species. Contrary to Plaintiffs’ suggestion, Dkt. 99 at 59, Reclamation also appropriately “[r]eviewed the effects” of the 2015 FARs on SONCC “Coho salmon in the Trinity River,” as detailed in its Biological Review. AR1101. Reclamation recognized that in 2015, it was “currently in consultation pursuant to section 7 of the ESA with NMFS for coho salmon in the Trinity River Basin as documented in a letter and accompanying Biological Review submitted to NMFS on August, 12, 2015.” AR1347; AR1101; AR7334 (noting that NMFS elected not to address this species in the 2009 BiOp and instead to issue a separate opinion). Thus, Reclamation considered the effects of the 2015 FARs on coho in the context of ESA section 7(d). See AR1325-26; AR1347-48. Modeling showed that the 2015 FARs were “not expected to have any measurable impact on water temperatures in the Trinity River” or “any lifestage of the Coho salmon.” AR0516; AR1109; see AR1336-37. And, “[i]f the preventative pulse flow was used, Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 59 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the overall impact would be anticipated to be positive in nature for the fish species.” AR1337. Accordingly, the releases would not violate section 7(d). AR1348. Plaintiffs insist that this approach was unlawful because Reclamation merely “believe[d] [it] has been in consultation with NMFS.” Dkt. 99 at 59. Without a document from NMFS confirming it was in ongoing consultation, Plaintiffs assert, Reclamation was actually not in consultation. This argument fails for several reasons. Fundamentally, nothing in the ESA requires that NMFS confirm (in writing or otherwise) that it is still in consultation with the action agency. See 50 C.F.R. § 402.14(g). Plaintiffs’ demand for written confirmation thus improperly seeks to graft a procedural hurdle into the ESA where none exists. Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir. 2008) (en banc) (courts may not “impose on the agency [their] own notion of which procedures are best or most likely to further some vague, undefined public good”) (internal quotation marks omitted). The same is true for Plaintiffs’ suggestion that the agencies needed a “document … show[ing]” the agencies’ agreement to extend the default timeframe for consultation. Dkt. 99 at 59. Here, too, Plaintiffs ignore the fact that nothing in the ESA imposes any such requirement. Thus, Plaintiffs’ emphasis on the purported lack of a “record … document from NMFS that confirms” the supposedly “drawn-out consultation process,” id., is groundless. It also is directed at NMFS, because, if anything, it would be NMFS’s obligation to conclude consultation by issuing its biological opinion. But NMFS is not a party here, and such attacks are therefore misdirected. Not only is there no basis for Plaintiffs to suggest that NMFS was required to “confirm” consultation was ongoing, there is no basis to surmise that NMFS was even expected to offer such confirmation within the period covered by the administrative record. Reclamation’s letter to NMFS preceded the decision to undertake 2015 FARs by six business days, and stated that Reclamation planned to provide additional information concerning the 2015 FARs. AR7336. Only “[a]fter this additional information is provided” did Reclamation ask NMFS to “confirm the timeframe for completion of [coho] consultation….” Id. Plaintiffs offer no record evidence that Reclamation provided this “additional information” before the challenged decision occurred. Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 60 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Thus, even if NMFS were expected to “confirm” the status of consultation, that request had not ripened during the period covered by the administrative record. Moreover, the Supreme Court “demands” that the Court afford the agencies a presumption of regularity. Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1071–72 (9th Cir.), amended sub nom., 387 F.3d 968 (9th Cir. 2004); (citing Overton Park, 401 U.S. at 415). Here, Reclamation unquestionably initiated consultation with NMFS on coho in 2006; NMFS stated that it would provide a separate opinion on coho in 2009; confirmed that was the case in 2011, RJN Ex. 3 at 42 of 189; and Reclamation reiterated to NMFS that the agencies were still in consultation in 2015. AR1101; AR7334-5. “[U]nless rebutted by evidence in the record,” the Court “must presume” that these representation are true. Gifford Pinchot, 378 F.3d at 1071. Plaintiffs offer no such evidence. Instead, the record lacks any hint of disagreement from NMFS that consultation was ongoing. The Court should therefore conclude that the agencies had, as they represented to one another, mutually agreed that they were in consultation on coho on an enlarged schedule. For all of these reasons, the claim that Reclamation needed to prove it was still consulting with NMFS is as meritless as Plaintiffs’ earlier argument that Reclamation needed to prove it started consulting with NMFS. And, because Plaintiffs’ MSA challenge to the 2015 FARs is wholly based on Reclamation’s alleged failure to properly consult under the ESA, Dkt. 99 at 62- 63, that claim fails as well. Nonetheless, the record shows that Reclamation fulfilled its legal obligations under the MSA as well. As noted above, MSA regulations recommend that action agencies undertake MSA consultation in conjunction with their ESA (or other) required consultations. 50 C.F.R. § 600.920(f). Here, Reclamation consulted with NMFS under the MSA for “the Sacramento River species in the 2009 [BiOp].” AR1348. In 2015, Reclamation again considered whether additional consultation was required under the MSA and rationally concluded there was no such need. AR13468. Reclamation explained that “since there was a determination, concurred with by NMFS,” that the 2015 FARs “will not result in violation of the incidental take limit in the NMFS 2009 BiOp, nor jeopardize the continued existence of the listed species or destroy or adversely modify their designated critical habitats, no further consultation Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 61 of 62 San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-cv-1290-LJO-EPG Federal Defendants’ Opposition and Cross-Motion for Summary Judgment 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 under the MSA is needed.” AR1348. As to the coho, “the MSA [consultation] will be conducted as part of the ongoing consultation on the coho.” AR1348. Additionally, Reclamation explained that no consultation was required because, “as determined in the EA, Reclamation did not identify any adverse effects from the proposed action on essential fish habitat.” AR1348. These reasoned determinations are sufficient and entitled to deference. CONCLUSION For the reasons stated herein, Plaintiffs’ Motion for Summary Judgment should be denied and Federal Defendants’ Motion for Summary Judgment should be granted. Dated: September 15, 2016 Respectfully submitted, JOHN C. CRUDEN, Assistant Attorney General /s/Anna K. Stimmel ANNA K. STIMMEL, Trial Attorney United States Department of Justice Environment & Natural Resources Division Attorneys for Federal Defendants CERTIFICATE OF SERVICE I hereby certify that on September 15, 2016, I electronically filed the foregoing with the Clerk of the Court via the CM/ECF system, which will send notification of the attorneys of record in this case. /s/Anna K. Stimmel ANNA K. STIMMEL Trial Attorney Case 1:15-cv-01290-LJO-EPG Document 105-1 Filed 09/15/16 Page 62 of 62
