Yurok Tribe et al v. United States Bureau of Reclamation

MOTION for Partial Summary Judgment and Memorandum In Support

N.D. Cal.November 30, 2016

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 KRISTEN L. BOYLES (CSBA # 158450) PATTI A. GOLDMAN (WSBA # 24426) [Pro Hac Vice Admission Pending] STEPHANIE TSOSIE (WSBA #49840) [Pro Hac Vice Admission Pending] Earthjustice 705 Second Avenue, Suite 203 Seattle, WA 98104 Ph: (206) 343-7340 | Fax: (206) 343-1526 kboyles@earthjustice.org pgoldman@earthjustice.org stsosie@earthjustice.org TRENT ORR (CSBA # 77656) Earthjustice 50 California, Suite 400 San Francisco, CA 94111 Ph: (415) 217-2082 | Fax: (415) 217-2040 torr@earthjustice.org Attorneys for Plaintiffs for Pacific Coast Federation of Fishermen’s Associations, Institute for Fisheries Resources, and Klamath Riverkeeper CHEYENNE SANDERS (CSBA # 307359) Yurok Tribe 190 Klamath Blvd. P.O. BOX 1027 Klamath, CA 95548 Ph: (707) 482-1350 | Fax: (707) 482-1377 csanders@yuroktribe.nsn.us Attorney for Plaintiff Yurok Tribe UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION YUROK TRIBE, PACIFIC COAST FEDERATION OF FISHERMEN’S ASSOCIATIONS, INSTITUTE FOR FISHERIES RESOURCES, and KLAMATH Case No. 3:16-cv-06863-JSC [Related Case No. C16-cv-04294-WHO] Noted: January 17, 20171 1 Plaintiffs noted this motion for an available hearing date before Magistrate Judge Jacqueline Scott Corley to whom this case has been randomly assigned. Plaintiffs filed an administrative motion requesting that this case be assigned as a related case to Hoopa Valley Tribe v. U.S. Bureau of Reclamation, C16-cv-04294-WHO, which has been assigned to Judge William H. Case 3:16-cv-06863-JSC Document 8 Filed 11/30/16 Page 1 of 33 PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 RIVERKEEPER, Plaintiffs, v. U.S. BUREAU OF RECLAMATION, and NATIONAL MARINE FISHERIES SERVICE, Defendants. PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT Orrick. An analogous motion for partial summary judgment in that case has been noted for January 11, 2017 at 2 p.m. Case 3:16-cv-06863-JSC Document 8 Filed 11/30/16 Page 2 of 33 MOTION FOR PARTIAL SUMMARY JUDGMENT - 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 TABLE OF CONTENTS INTRODUCTION AND NOTICE OF MOTION ...........................................................................1 STATEMENT OF RELIEF REQUESTED .....................................................................................2 STATEMENT OF ISSUES .............................................................................................................2 BACKGROUND .............................................................................................................................2 I. THE PRECARIOUS STATE OF SONCC COHO SALMON DUE, IN LARGE PART, TO THE KLAMATH PROJECT ..................................................2 II. THE ESA’S CONSULTATION REQUIREMENTS ..............................................4 III. ESA CONSULTATION ON THE IMPACTS OF KLAMATH PROJECT OPERATIONS ON SONCC COHO SALMON .....................................................6 IV. INFECTION RATES DRAMATICALLY EXCEEDED THE INCIDENTAL TAKE STATEMENT’S LIMITS IN 2014 AND 2015 ..................9 ARGUMENT .................................................................................................................................11 I. THE BUREAU AND NMFS HAVE VIOLATED THEIR DUTY TO REINITIATE CONSULTATION .........................................................................11 A. The Bureau and NMFS Must Reinitiate Formal Consultation Because Disease Rates in 2014 and 2015 Exceeded the Limit in the Incidental Take Statement..........................................................................11 B. The Bureau and NMFS Cannot Confirm the Biological Opinion’s Conclusions or Revise the Incidental Take Statement Without Completing a Reinitiated Consultation. .....................................................13 C. Informal Consultation Is Not an Option ....................................................16 II. THIS COURT SHOULD ISSUE AN INJUNCTION REQUIRING FLOWS TO PREVENT EXCESSIVE DISEASE AND MORTALITIES IN JUVENILE COHO DURING THE REINITIATED CONSULTATION ........17 A. The Bureau’s Operation of the Klamath Project is Causing Irreparable Harm to SONCC Coho Salmon...............................................18 B. Additional Flows Are Needed to Prevent Excessive C. Shasta Outbreaks or to Reduce Them if Preventive Flows Fail to Stem the Tide. ...........................................................................................................20 Case 3:16-cv-06863-JSC Document 8 Filed 11/30/16 Page 3 of 33 MOTION FOR PARTIAL SUMMARY JUDGMENT - 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 C. An Injunction Is Needed Quickly and At Least By March 1, 2017 To Be Feasible and To Allow Flexibility in Implementation. ...................24 CONCLUSION ..............................................................................................................................25 Case 3:16-cv-06863-JSC Document 8 Filed 11/30/16 Page 4 of 33 MOTION FOR PARTIAL SUMMARY JUDGMENT - 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 TABLE OF AUTHORITIES Cases Amoco Prod. Co. v. Vill. of Gambell, AK, 480 U.S. 531 (1987) ............................................................................................................... 18 Arizona Cattle Growers’ Ass’n v. FWS, 273 F.3d 1229 (9th Cir. 2001) ......................................................................................... 13, 14 Blake v. Arnett, 663 F.2d 906 (9th Cir. 1981) ................................................................................................. 20 Center for Biological Diversity v. BLM, 698 F.3d 1101 (9th Cir. 2012) ................................................................................... 13, 14, 15 Cottonwood Envtl. Law Ctr. v. Forest Serv., 789 F.3d 1075 (9th Cir. 2015) ............................................................................................... 18 eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) ............................................................................................................... 18 Friends of the Earth v. Laidlaw Envtl. Serv., 528 U.S. 167 (2000) ............................................................................................................... 20 Gifford Pinchot Task Force v. FWS, 378 F.3d 1059 (9th Cir. 2004) ............................................................................................... 14 Klamath Water Users Protective Ass’n v. Patterson, 204 F.3d 1206 (9th Cir. 1999) ............................................................................................ 4, 24 Oregon Natural Desert Ass’n. v. Tidwell, 716 F. Supp. 2d 982 (D. Or. 2010) ........................................................................................ 16 Oregon Natural Resources Council v. Allen, 476 F.3d 1031 (9th Cir. 2007) ............................................................................................... 15 Pacific Coast Fed’n of Fishermen’s Ass’ns v. Bureau of Reclamation, 138 F. Supp. 2d 1228 (N.D. Cal. 2001) ............................................................................. 6, 17 Pacific Coast Fed’n of Fishermen’s Ass’ns v. Bureau of Reclamation, 2006 WL 798920 *5 (N.D. Cal. 2006) .................................................................................. 15 Pacific Coast Fed’n of Fishermen’s Ass’ns v. Bureau of Reclamation, 426 F.3d 1082 (9th Cir. 2005) .................................................................................................. 6 Pacific Coast Fed’n of Fishermen’s Ass’n v. Bureau of Reclamation, 226 Fed. Appx. 715 (9th Cir. 2007) ....................................................................................... 15 Case 3:16-cv-06863-JSC Document 8 Filed 11/30/16 Page 5 of 33 MOTION FOR PARTIAL SUMMARY JUDGMENT - 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 Pacificans for a Scenic Coast v. Cal. DOT, Case No. 15-cv-02090-VC (N.D. Cal. Sept. 2, 2016) ........................................................... 17 Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220 (9th Cir. 2008) ............................................................................................... 17 Sierra Club v. Marsh, 816 F.2d 1376 (9th Cir. 1987) ......................................................................................... 13, 17 TVA v. Hill, 437 U.S. 153 (1978) ............................................................................................................... 18 United States v. Winans, 198 U.S. 371 (1905) ............................................................................................................... 20 W. Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir. 2011) ................................................................................................. 11 Statutes 16 U.S.C. § 1532(19) ...................................................................................................................... 5 16 U.S.C. § 1536(a)(2) .................................................................................................................... 4 16 U.S.C. § 1536(b)(3)(A) .............................................................................................................. 5 16 U.S.C. § 1536(b)(4) ................................................................................................................... 5 16 U.S.C. § 1536(b)(4)(C) .............................................................................................................. 5 16 U.S.C. § 1536(o)(2) ................................................................................................................... 5 16 U.S.C. § 1538(a)(1) .................................................................................................................... 5 16 U.S.C. § 1540(g)(1) ................................................................................................................. 11 50 C.F.R. § 222.102 ........................................................................................................................ 5 50 C.F.R. § 223.203(a).................................................................................................................... 5 50 C.F.R. § 402.02 .................................................................................................................... 4, 16 50 C.F.R. § 402.13 ........................................................................................................................ 16 50 C.F.R. § 402.14(b)(1) ............................................................................................................... 16 50 C.F.R. § 402.14(g)-(h) ............................................................................................................... 5 50 C.F.R. § 402.14(i) ...................................................................................................................... 5 Case 3:16-cv-06863-JSC Document 8 Filed 11/30/16 Page 6 of 33 MOTION FOR PARTIAL SUMMARY JUDGMENT - 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 50 C.F.R. § 402.16 ................................................................................................................. passim Other Authorities 62 Fed. Reg. 24,588 (May 6, 1997) ................................................................................................ 3 64 Fed. Reg. 24,049 (May 5, 1999) ................................................................................................ 3 65 Fed. Reg. 42,422 (July 10, 2000) ............................................................................................... 5 Rules Fed. R. Civ. P. 56 .......................................................................................................................... 11 Case 3:16-cv-06863-JSC Document 8 Filed 11/30/16 Page 7 of 33 MOTION FOR PARTIAL 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 INTRODUCTION AND NOTICE OF MOTION This case marks the latest chapter in long-running efforts to reduce the harm from the Klamath Irrigation Project on salmon and the communities that depend on native fish for their sustenance, cultural identity, and well-being. Salmon populations in the Klamath River have declined to such an extent that Southern Oregon/Northern California Coast (“SONCC”) coho salmon have been listed as threatened under the Endangered Species Act (“ESA”) due, in large part, to diminished river flows and altered habitat from the Klamath Project. This case concerns an often-fatal disease that is currently the most significant threat to SONCC coho survival. In 2014 and 2015, SONCC coho experienced unprecedented outbreaks of disease in juvenile salmon that dwarf the highest levels ever recorded. The disease, called Ceratanova shasta or Ceratomyxa shasta (“C. shasta"), comes from a parasite that causes infections that often lead to mortality. In the most recent ESA consultation on the U.S. Bureau of Reclamation’s 2013-2023 operations of the Klamath Project, the National Marine Fisheries Service (“NMFS”) based its no-jeopardy determination on minimum and emergency flows to reduce C. shasta disease rates.2 As a further check, NMFS’s incidental take statement set a numeric limit on C. shasta infections equivalent to the highest disease rate on record, and NMFS made it clear than any higher infection rates would require the agencies to reinitiate formal consultation. Tragically, disease rates far exceeded this limit in the first two years under the biological opinion. Under the terms of the incidental take statement and ESA regulations, the Bureau and NMFS have a legal obligation to reinitiate and complete a new formal consultation on the 2013-2023 Klamath Project operations, but they have not done so. This motion for partial summary judgment on Claim I, noticed for January 17, 2017, asks the Court to hold that the 2 NMFS and U.S. Fish and Wildlife Service, Biological Opinions on the Effects of Proposed Klamath Project Operations from May 31, 2013, through March 31, 2023, on Five Federally Listed Threatened and Endangered Species (May 2013) at https://www.fws.gov/klamathfallsfwo/news/2013%20BO/2013-Final-Klamath-Project-BO.pdf, has been filed by the federal defendants in the related case as Exh. A to Jason Cameron Decl. (Docket 33-1). Case 3:16-cv-06863-JSC Document 8 Filed 11/30/16 Page 8 of 33 MOTION FOR PARTIAL 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 agencies are in violation of their legal duty to reinitiate formal consultation. STATEMENT OF RELIEF REQUESTED This motion seeks an order directing NMFS and the Bureau to reinitiate formal consultation on Klamath Project operations and an injunction requiring additional flows to prevent and reduce the incidence of disease while the agencies consult and develop long-term mitigation measures. This motion seeks two types of flows: (1) prevention flows to flush out the worms that host the C. shasta spores that cause disease (and remove their habitat); and (2) emergency dilution flows to limit the spread of disease when disease rates or spore concentrations reach certain thresholds, revealing that the prevention flows proved insufficient. Two years of alarmingly high infections have taken their toll on a salmon population that has a three-year life cycle. It is critical to prevent a recurrence. Because the Bureau will lock in the 2017 irrigation allocation on or about April 1, 2017 and prevention flows may be warranted sooner, we ask the Court to issue a decision on this motion by mid-February 2017. STATEMENT OF ISSUES A. Whether the Bureau and NMFS have violated the ESA and its implementing regulation at 50 C.F.R. § 402.16 by failing to reinitiate formal consultation when the C. shasta disease rates in the first two years under the biological opinion far exceeded the numeric limits in the incidental take statement? B. Whether the Court should require additional flows during reinitiated consultation that the best available science demonstrates are necessary to reduce the incidence of C. shasta infections, mortalities, and irreparable harm to SONCC coho salmon? BACKGROUND I. THE PRECARIOUS STATE OF SONCC COHO SALMON DUE, IN LARGE PART, TO THE KLAMATH PROJECT In 1997, NMFS listed SONCC coho as threatened under the ESA due to the decline from 150,000 to 400,000 fish spawning annually to approximately 10,000. 62 Fed. Reg. 24,588 (May Case 3:16-cv-06863-JSC Document 8 Filed 11/30/16 Page 9 of 33 MOTION FOR PARTIAL 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 6, 1997). Their plight has since worsened, and they remain at high risk of extinction due, in large part, to water diversions and withdrawals from the Klamath Project. Five-Year Review of SONCC Coho Salmon at 47-49 (2016) (Exh. 4 to Decl. of Dave Hillemeier (Nov. 30, 2016)); see also 64 Fed. Reg. 24,049, 24,059 (May 5, 1999) (critical habitat designation identified need to reduce harm from water diversions and withdrawals). The Klamath Project is a federal irrigation project straddling the California-Oregon border that consists of several diversions, canals, pumping stations, and reservoirs. The Bureau operates the Klamath Project to provide irrigation water annually to more than 200,000 acres of agricultural land. The water diversions determine the amount and timing of flows in the Klamath River below Iron Gate Dam where salmon have been confined by the dam, which blocks upstream fish passage. Complaint ¶¶ 31-32. The Klamath Project’s water withdrawals have severely diminished mainstem Klamath River flows needed to support SONCC coho salmon. Studies by Dr. Thomas Hardy commissioned by the Department of Interior have identified minimum instream flows needed to inundate and provide useable habitat to support salmon spawning, juvenile rearing, and migration. Declaration of Michael Belchik ¶¶ 18-19 (Nov. 30, 2016). A failure to provide sufficient flows can have, and has had, dire consequences. Tragedy struck in 2002 when more than 34,000 adult salmon died from a different parasite infection related to low flows in the lower Klamath River as they were returning to spawn. Releasing emergency pulse flows in the summer has largely prevented a recurrence of that disaster. Id. ¶¶ 21-22. Low flows continue to pose a serious threat to juvenile coho salmon with the most significant threat now being infections from the C. shasta parasite. SONCC 5-Year Status Review at 34. C. shasta has been responsible for most of the mortality of Klamath River juvenile coho in recent years and is a high or very high stress to many SONCC coho populations, including three in the Klamath Basin. Final Recovery Plan for SONCC Coho Salmon at 1-5, 3- 19 to -20 (2014) (Goldman Exh. 5). C. shasta destroys intestinal tissues, often leading to a Case 3:16-cv-06863-JSC Document 8 Filed 11/30/16 Page 10 of 33 MOTION FOR PARTIAL 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 severe inflammatory reaction and death. Salmon infected by the parasite are more susceptible to other pathogens, predation, and compromised physiological systems needed for the ocean part of the salmon life cycle. Belchik Decl. ¶ 14-17 and Hillemeier Exh. 9: App. E at 1. Salmon co-evolved with C. shasta, which is endemic to the Klamath Basin. The Klamath Project has diminished the magnitude and duration of flushing flows, which has led to spikes in C. shasta concentrations and abnormally high juvenile infection rates in recent years. More salmon succumb to disease when C. shasta concentrations and water temperatures increase, and the host worms (polychaetes) proliferate in low-flows and above-average water temperatures in spring to early summer. Id.; Hillemeier Decl. ¶ 14. The altered habitat and low flows below Iron Gate Dam create a perfect storm, allowing the polychaetes to thrive, temperatures to warm, and large numbers of outmigrating juveniles to congregate in C. shasta infested waters. II. THE ESA’S CONSULTATION REQUIREMENTS Section 7 of the ESA prohibits agency actions that may jeopardize the survival and recovery of a listed species or adversely modify its critical habitat: Each federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an “agency action”) is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary . . . to be critical . . . . 16 U.S.C. § 1536(a)(2). “Action” is defined broadly to encompass “all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies,” 50 C.F.R. § 402.02, and it extends to ongoing actions, like the Klamath Project, over which the agency retains authority or discretionary control. Klamath Water Users Protective Ass’n v. Patterson, 204 F.3d 1206, 1213(9th Cir. 1999). Section 7 establishes an interagency consultation process to assist federal agencies in complying with their duty to avoid jeopardy to listed species or destruction or adverse modification of critical habitat. For actions that may adversely affect a listed species or critical Case 3:16-cv-06863-JSC Document 8 Filed 11/30/16 Page 11 of 33 MOTION FOR PARTIAL 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 habitat, a formal consultation is required with the expert fish and wildlife agency – NMFS for salmon – that culminates in a biological opinion assessing the effects of the action, determining whether the action is likely to jeopardize the continued existence of the species or adversely modify its critical habitat and, if so, offering a reasonable and prudent alternative that will avoid jeopardy or adverse modification. 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(g)-(h). The ESA also prohibits the “take” of listed species, including harm caused by habitat modification, and this prohibition applies to SONCC coho salmon. 16 U.S.C. § 1538(a)(1); see id. § 1532(19) (“take” includes harm); 50 C.F.R. § 222.102 (harm includes impairment of essential behaviors from habitat modification); 50 C.F.R. § 223.203(a); 65 Fed. Reg. 42,422 (2000) (extending take prohibition to listed salmon). NMFS can insulate activities from the take prohibition by including in a biological opinion an “incidental take statement” that specifies the amount and extent of incidental take of listed species that may occur and “terms and conditions.” 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i). The incidental take statement provides a safe harbor for activities undertaken in compliance with the incidental take statement’s requirements and terms and conditions. 16 U.S.C. § 1536(o)(2); see 16 U.S.C. § 1536(b)(4)(C). An incidental take statement also serves as a check on the biological opinion’s assumptions and conclusions. It sets out a “trigger” that specifies an unacceptable level of take which requires the agencies to reinitiate formal consultation. This duty to reinitiate consultation is spelled out in the ESA implementing regulations: Reinitiation of formal consultation is required and shall be requested by the Federal agency or by the Service, where discretionary Federal involvement or control over the action has been retained or is authorized by law and (a) If the amount or extent of taking specified in the incidental take statement is exceeded; [or] (b) If new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered . . . . 50 C.F.R. § 402.16 & (a)-(b). If either trigger occurs, reinitiation of formal consultation is required, and both the action and expert agencies have a duty to ensure that it happens. Case 3:16-cv-06863-JSC Document 8 Filed 11/30/16 Page 12 of 33 MOTION FOR PARTIAL 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 III. ESA CONSULTATION ON THE IMPACTS OF KLAMATH PROJECT OPERATIONS ON SONCC COHO SALMON It is uncontested that the Bureau’s operations of the Klamath Project are subject to ESA Section 7 and are likely to adversely affect SONCC coho salmon. The Bureau has repeatedly made likely to adversely affect findings for multi-year Project operations, giving rise to formal ESA consultation on the impacts of the Project on SONCC coho. Belchik Decl. ¶¶ 18-19. Past consultations have focused on the adequacy of water flows in the Klamath River to support coho, and in particular to provide sufficient habitat for juvenile coho to mature during their first 15 months when they rear in freshwater. When the Bureau failed to complete consultation on its 2000 annual operating plan for the Project, this Court held that the Bureau had violated Section 7 and required the Bureau to curtail water deliveries that would reduce flows below levels identified by Dr. Hardy as needed for coho while it completed consultation. Pacific Coast Fed’n of Fishermen’s Ass’ns (“PCFFA”) v. Bureau of Reclamation, 138 F. Supp. 2d 1228, 1242-43, 1249-50 (N.D. Cal. 2001). In 2002, NMFS released a biological opinion concluding that 2002-2012 Project operations would leave insufficient flows in the river to support coho spawning, rearing, and out-migration. NMFS developed a reasonable and prudent alternative that established higher long-term minimum flows based on Dr. Hardy’s draft evaluation of more particular coho instream flow needs. In a challenge to NMFS’s failure to require the long-term flows during the first eight years of the plan, the Ninth Circuit ruled for conservation groups and Tribes, including most of the plaintiffs, and required 100% of the minimum flows. PCFFA v. Bureau of Reclamation, 426 F.3d 1082 (9th Cir. 2005). In light of the Ninth Circuit decision and the 2002 fish kill, the agencies reinitiated formal consultation. In 2010, NMFS issued a jeopardy biological opinion because inadequate flows would negatively affect juvenile growth and survival, and it proposed a reasonable and prudent alternative with spring flows that would not reduce juvenile coho habitat by more than 10%. http://www.westcoast.fisheries.noaa.gov/publications/Klamath/2010_klamath_project_bo.pdf. Soon thereafter, the Bureau asked NMFS and the FWS to consult on fish species under each Case 3:16-cv-06863-JSC Document 8 Filed 11/30/16 Page 13 of 33 MOTION FOR PARTIAL 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 agency’s jurisdiction – SONCC coho for NMFS and endangered Lost River and Shortnose Suckers that depend on Upper Klamath Lake for FWS. BiOp at 4. While flows to inundate juvenile coho habitat remained a point of contention, NMFS identified C. shasta infections and mortalities in juvenile coho as the most significant threat: “NMFS concludes that disease risk from C. shasta is the most significant to coho salmon because C. shasta is a key factor limiting salmon recovery in the Klamath River.” BiOp at 376; see id. at 341 (C. shasta is a key limiting factor for SONCC coho recovery). While C. shasta and salmon have long co-existed in the Klamath basin, the Klamath Project has increased the incidence of C. shasta infection rates because the host worm is not flushed out without strong spring flows that have grown increasingly rare and juvenile salmon congregate in slack waters where the spore concentrations and warm temperatures are high. BiOp at 339, 341, 343. At first, the Bureau proposed no minimum flows, and when it did, NMFS informed the Bureau that the proposed minimum flows for April, May, and June would pose unacceptable risks to coho salmon. The Bureau then agreed to minimum flows based assessments of the amount of water needed to inundate habitat for coho spawning and rearing, not to reduce disease. BiOp at 341. The new minimum flows are lower than the long-term flows in the 2002 biological opinion and imposed in the 2006 injunction. Compare Complaint ¶¶ 53 and 56. In addition to the spring minimum flows, the Bureau proposed pulse flows when disease rates are at or above thresholds, but the pulse flows would occur only if surplus water is available from an Environmental Water Account (“EWA”). Surplus water is determined in large part by the allocations for irrigation and minimum Upper Klamath Lake levels set to support endangered suckers. The amount of water allocated to irrigation is locked in by April 1st and cannot, under the biological opinion, be reduced during the rest of the water year. That means surplus water may be unavailable to provide pulse flows to limit C. shasta infections. In May 2013, the consultation culminated in a joint NMFS-FWS biological opinion on 2013-2023 Klamath Project operations. NMFS relied heavily on the newly added minimum Case 3:16-cv-06863-JSC Document 8 Filed 11/30/16 Page 14 of 33 MOTION FOR PARTIAL 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 flows and disease management program to make a no-jeopardy call. BiOp at 377. NMFS based its no-jeopardy conclusion on its view that the management regime with these additions would improve conditions for coho compared to the period of record, defined as 1981-2012 generally, and as 2006-2012 for C. shasta. NMFS also determined that critical habitat would continue to be degraded, but the Project’s adverse impacts would be lessened by the minimum flows and disease management. Specifically, as to disease, NMFS concluded that 2013-2023 Project operations would likely lead to the proliferation of C. shasta and higher infection rates and mortalities of juvenile coho. The minimum spring flows would not prevent this harm, but NMFS believed they would “provide a limit to the increase in disease risks to coho salmon.” NMFS also believed real-time disease management would likely “partially offset the increased disease risks to coho salmon during average and below average water years.” BiOp at 346-47. As with the other impacts, NMFS believed the proposed operations would lead to an improvement over historic conditions: “NMFS concluded that the proposed action will likely result in disease risks to coho salmon fry and juveniles that are lower than under the observed POR [period of record] conditions.” BiOp at 391. NMFS acknowledged that it “does not have information to specifically estimate what the reduced C. shasta infection rates for salmon will be under the proposed action; however, for the reasons described . . . NMFS concludes that the incidental take of coho salmon fry and juveniles would not exceed the rates observed in the POR.” Id. NMFS imposed two types of limits in the incidental take statement to serve as a check on its conclusion that the 2013-2023 operations would improve conditions for coho. First, it made the minimum flows for the months of March to August mandatory. BiOp at 389. Second, NMFS set a limit on the incidence of C. shasta. It used infection rates in chinook salmon as a surrogate for SONCC coho because chinook are more abundant, chinook and coho have similar susceptibility to C. shasta, and chinook disease monitoring has been in place since 2006. NMFS Case 3:16-cv-06863-JSC Document 8 Filed 11/30/16 Page 15 of 33 MOTION FOR PARTIAL 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 used this monitoring data to set the incidental take statement’s limit at the highest percentage of C. shasta infection rates from that data, 49% via quantitative polymerase chain reaction (“QPCR”), the metric used in the pertinent monitoring. NMFS explained: “By using the highest percentage of C. shasta infection rates for chinook salmon observed in the POR, NMFS has a secondary surrogate in addition to the March to August minimum daily average IGD flows and the EWA volumes to estimate the incidental take of coho from increased disease risk.” BiOp at 391. The biological opinion then spelled out the consequences if the disease rates are higher than these limits: If the percent of C. shasta infections for Chinook salmon juveniles in the mainstream Klamath River between Shasta River and Trinity River during May to July exceed these levels . . . reinitiation of formal consultation will be necessary. IV. INFECTION RATES DRAMATICALLY EXCEEDED THE INCIDENTAL TAKE STATEMENT’S LIMITS IN 2014 AND 2015 In the first two years under the 2013 Biological Opinion, juvenile salmon C. shasta infection rates exceeded the incidental take statement’s 49% limit by a wide margin. Chinook salmon infection rates were 81% in 2014 and 91% in 2015. Hillemeier Decl. ¶ 13 (Nov. 30, 2016) & Exh. 2-3; Belchik Decl. ¶ 28. In July 2015, the Bureau sent NMFS a “Notification of Modification, Amendment, Clarification, and/or Reinitiation of Formal Consultation on Klamath Project Operations,” noting: During the time that Reclamation has been implementing the Proposed Action under the BiOp, unprecedented, multi-year drought conditions have persisted which have caused variations in operations and hydrologic conditions that were not anticipated at the time the Proposed Action was analyzed in the BiOp. Letter to NMFS from Bureau Klamath Basin Area Manager (July 17, 2015) (Goldman Exh. 3). In light of these conditions, the Bureau indicated a desire “to begin comprehensive discussions to clearly establish a path forward to resolve the outstanding issues.” In response, NMFS confirmed that the incidence of C. shasta exceeded the limits in the Case 3:16-cv-06863-JSC Document 8 Filed 11/30/16 Page 16 of 33 MOTION FOR PARTIAL 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 incidental take statement in both 2014 and 2015. Rather than reinitiate consultation, NMFS indicated that it would revise the incidental take statement prior to the 2017 water year “to account for the likelihood of similar conditions in the future.” Without addressing the now- disproven assumption that disease rates would never be higher than the period of record, NMFS asserted that the biological opinion’s conclusions remain valid because it had acknowledged that dry years would lead to poor environmental conditions and high disease rates. NMFS Letter at 2 (Mar. 29, 2016) (Goldman Exh. 4). In July 2016, NMFS, FWS, the Bureau, and the Yurok, Karuk, and Hoopa Valley Tribes formed a disease technical advisory team (“DTAT”) to compile the best available science on C. shasta and to provide the basis for measures to reduce infection rates. In cooperation with the technical team and after peer review, FWS summarized the best available science in four technical memos on fish infections, waterborne C. shasta spores, the polychaete host worms, and sediment mobilization flows. Hillemeier Exh. 9, Appendices B-E. The scoping for this process envisioned that the technical team would produce recommended management measures in mid- October. Hillemeier Exh. 8. Instead, the Tribal technical experts on the team synthesized the technical memos and developed mitigation measures to lower the incidence of C. shasta. Hillemeier Exh. 9. The Guidance Document recommends measures in addition to those in the biological opinion to reduce the severity and prevalence of C. shasta infections. First, to prevent infestations, flushing flows in the winter-spring would flush out host worms and sediments that support them and later fall flows would flush out salmon carcasses laden with spores. Id. at 7- 10, 13. Second, emergency dilution flows would be required if infection rates or spore concentrations began to spike when the heart of the juvenile outmigration is underway. Id. at 10- 12. To ensure sufficient water is available if dilution flows become necessary, a water allocation would be reserved for this purpose. The Tribes also recommended managing hatchery releases to prevent an infusion of out-migrating juveniles when infections are rampant. Id. at 14-16. Case 3:16-cv-06863-JSC Document 8 Filed 11/30/16 Page 17 of 33 MOTION FOR PARTIAL 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 Technical experts with the federal agencies provided comments on the guidance document during the week of November 28, 2016. Belchik Decl. ¶¶ 32-38. The Bureau has not, however, committed to implement any particular mitigation measures. ARGUMENT I. THE BUREAU AND NMFS HAVE VIOLATED THEIR DUTY TO REINITIATE CONSULTATION Summary judgment is appropriate on Count I because there are no disputes of material fact; indeed, the critical facts are conceded. Fed. R. Civ. P. 56. Defendants are in clear violation of their ESA obligation to reinitiate formal consultation and have acted arbitrarily, capriciously, and not in accordance with law, the pertinent standard of review. W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 481, 496 (9th Cir. 2011). A. The Bureau and NMFS Must Reinitiate Formal Consultation Because Disease Rates in 2014 and 2015 Exceeded the Limit in the Incidental Take Statement. The ESA citizen suit provision authorizes courts to enjoin violations by any person, including federal agencies, of any provision of the ESA or the regulations issued pursuant to it. 16 U.S.C. § 1540(g)(1).3 The pertinent provision here is a regulation jointly promulgated by NMFS and FWS that requires both the Bureau and NMFS to reinitiate formal consultation when “the amount or extent of taking specified in the incidental take statement is exceeded” or when “new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered.” 50 C.F.R. § 402.16. Reinitiation of formal consultation on Klamath Project operations is required under both prongs. As to the first, the incidental take statement imposed a numeric limit of 49% on the incidence of C. shasta infections in juvenile salmon. NMFS based this cap on the highest recorded infection rates. Setting the cap at this level was designed to serve as a check on NMFS’s assumption that the mitigation measures promised by the Bureau would limit infection 3 In June and July, 2016, plaintiffs sent 60-day notices of their intent to sue to defendants, but the legal violations have not been remedied. Hillemeier Exh. 5-6; Goldman Decl. 1-2. Case 3:16-cv-06863-JSC Document 8 Filed 11/30/16 Page 18 of 33 MOTION FOR PARTIAL 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 rates to be lower than the period of record. The incidental take statement (BiOp at 391) prescribes the consequences should infection rates be higher than 49%: If the percent of C. shasta infections for Chinook salmon juveniles in the mainstream Klamath River between Shasta River and Trinity River during May to July exceed these levels . . . reinitiation of formal consultation will be necessary. Both the Bureau and NMFS admit that disease rates exceeded 49% in the first two years under the biological opinion and by a wide margin. The extremely alarming disease rates of 81% and 91% in 2014 and 2015 reveal that Klamath Project operations produced far greater harm to juvenile coho than NMFS had assumed in making a no-jeopardy finding. Under the plain language of both the incidental take statement and the ESA regulation, reinitiation of formal consultation is required. As to the second reinitiation prong, the multiple years of severe drought, coupled with the high C. shasta infection rates, reveal far more harmful, and potentially disastrous effects of Project operations than considered by NMFS in its 2013 biological opinion. NMFS assumed that the minimum spring flows and real-time disease management would limit juvenile salmon disease rates so that they would be lower than the period of record and would move toward what occurred under natural flow conditions. BiOp at 346-47, 391. Based on this conclusion, NMFS believed coho abundance and productivity would improve. BiOp at 377. The disease rates in 2014 and 2015 moved in the opposite direction. They reveal harm to SONCC coho “to an extent not previously considered,” 50 C.F.R. § 402.16(b), and call into question the core assumption underlying NMFS no-jeopardy conclusion that conditions for SONCC coho would improve compared to the period of record. The ESA mandates Section 7 consultations to inform how the Bureau will ensure its actions, like operating the Klamath Project, will avoid jeopardizing the survival and recovery of listed species like SONCC coho, or adversely modify their critical habitat. The incidental take statement plays a significant role in that process. While it authorizes “take” of listed species, it does so based on a no-jeopardy determination and limits take to incidental levels that do not Case 3:16-cv-06863-JSC Document 8 Filed 11/30/16 Page 19 of 33 MOTION FOR PARTIAL 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 undermine that no-jeopardy conclusion. The limits on take provide the basis for monitoring and a trigger for reinitiating consultation when the action causes more harm than anticipated. See Arizona Cattle Growers’ Ass’n v. FWS, 273 F.3d 1229, 1249 (9th Cir. 2001) (“Incidental Take Statements set forth a ‘trigger’ that, when reached results in an unacceptable level of incidental take, invalidating the safe harbor provision, and requiring the parties to re-initiate consultation.”). Where, as here, the amount of take exceeds that limit, reinitiation of formal consultation is required because the pivotal assumptions made in the biological opinion have been disproven. B. The Bureau and NMFS Cannot Confirm the Biological Opinion’s Conclusions or Revise the Incidental Take Statement Without Completing a Reinitiated Consultation. NMFS plans to skip over reinitiated consultation and revise the incidental take statement to account for higher disease rates in dry years. However, the ESA regulations mandate reinitiation of consultation when the limits in an incidental take statement are exceeded, which means NMFS must make a new jeopardy determination based on the demonstrated effects of Project operations and only then can it revise the incidental take statement. It is well settled that when conservation measures do not proceed as promised or fail to produce the anticipated benefits, the biological opinion is no longer valid and the agencies must reinitiate consultation. In Sierra Club v. Marsh, 816 F.2d 1376, 1388 (9th Cir. 1987), the Ninth Circuit held that the Army Corps of Engineers had to reinitiate consultation when it failed to acquire mitigation lands to offset the harm to listed species from the highway and flood control project. In Center for Biological Diversity v. BLM, 698 F.3d 1101, 1113-19 (9th Cir. 2012), the Ninth Circuit held that the FWS could not rely on a non-binding conservation plan to make a jeopardy determination. The court then explained: “where an action agency does not reinitiate consultation with the FWS despite the failure of promised conservation measures, the Biological Opinion for the proposed action becomes invalid.” Id. at 1115 (citing ESA Handbook at 4-23). In the 2013 biological opinion, NMFS made a no jeopardy finding based on its assumption that conditions for SONCC coho under 2013-2023 operations would improve and C. Case 3:16-cv-06863-JSC Document 8 Filed 11/30/16 Page 20 of 33 MOTION FOR PARTIAL 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 shasta infection rates would be lower than those observed previously. NMFS relied specifically on the minimum spring flows and disease management measures the Bureau promised late in the consultation. The unprecedented and alarmingly high disease rates in 2014 and 2015 have proven NMFS’s assumptions to be false, and the biological opinion’s no-jeopardy conclusion collapses like a house of cards. NMFS has asserted that its prior analysis remains valid because the biological opinion noted environmental conditions would be worse and disease rates higher in dry years. However, NMFS has not made a new jeopardy determination that conforms to the ESA’s consultation requirements. It did not re-assess the Project operations’ effects on SONCC coho and determine whether they are likely to jeopardize salmon survival and recovery in light of the higher infection rates than what NMFS previously assumed. As the Ninth Circuit held in Center for Biological Diversity, 698 F.3d at 1117, “Congress did not contemplate leaving the federal government’s protection of endangered and threatened species to mechanisms other than those specified by the ESA, the statute designed to accomplish that protection.” The courts have rejected comparable attempts to bypass the consultation process. In Gifford Pinchot Task Force v. FWS, 378 F.3d 1059, 1077 (9th Cir. 2004), FWS addressed newly discovered information in “amendments” to its biological opinions for logging in the Pacific Northwest. The Ninth Circuit held that such amendments are prohibited because they would render the consultation process ‘meaningless’ and would allow the FWS to issue ‘unsupported Biological Opinions knowing that it could search for evidentiary support if the opinion was later challenged. As we have recognized, the discovery of new facts does not justify an ‘amendment’ to the BiOp, but mandates reinitiating formal consultation. Similarly, in Arizona Cattle Growers, 273 F.3d at 1245, the Ninth Circuit refused to allow the FWS to defend a biological opinion based on subsequent surveys because the ESA regulations “mandate the reinitiation of consultation if circumstances change or new facts are discovered.” Even closer to home, this Court and the Ninth Circuit rebuffed the Bureau’s attempt to supplement a biological opinion on Klamath Project operations, rather than reinitiate Case 3:16-cv-06863-JSC Document 8 Filed 11/30/16 Page 21 of 33 MOTION FOR PARTIAL 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 consultation. This Court held that the agencies had to reinitiate consultation and undertake the full consultation process because new information had emerged, yet NMFS instead had “created a document that minimizes the import of this new information, rather than integrating it with the past information and assessing the whole record that exists today.” PCFFA v. Bureau of Reclamation, 2006 WL 798920 *5 (N.D. Cal. 2006). The Ninth Circuit affirmed: “it is well settled that a previous agency determination in a Biological Opinion cannot be amended or supplemented with post-determination analysis or evidence without reinitiating the consultation process.” PCFFA, 226 Fed. Appx. 715, 717 (9th Cir. 2007). Nor can NMFS simply revise the incidental take statement to account for the higher incidence of disease without completing a new consultation as it intends to do. Two Ninth Circuit decisions foreclose that course of action. First, in Center for Biological Diversity, 698 F.3d. at 1108, the Ninth Circuit held: “When reinitiation of consultation is required, the original biological opinion loses its validity, as does the accompanying incidental take statement, which then no longer shields the action agency from penalties for takings.” Second, in Oregon Natural Resources Council v. Allen, 476 F.3d 1031 (9th Cir. 2007), the Ninth Circuit invalidated an incidental take statement that grew out of a portion of a biological opinion that had since been withdrawn. The court explained that an incidental take statement does not stand alone, but instead draws its validity from the biological opinion that green lights the project subject to the incidental take statement’s terms and conditions. Id. at 1034, 1036-37; see id. at 1036 (“Without the ‘no jeopardy’ determination contained in the underlying BiOp, the Incidental Take Statement potentially pre-authorizes take for an action that could subsequently be determined to jeopardize the existence of an endangered species. Such a result would be contrary to the ESA’s fundamental purpose and scheme.”). The incidental take statement is issued with the biological opinion, is predicated on the no-jeopardy determination, and can authorize take only if it is incidental to the project as substantiated in the biological opinion. Id. at 1036-37. Because it serves as a check on the no-jeopardy conclusion, the ESA’s regulations require that “[t]he Case 3:16-cv-06863-JSC Document 8 Filed 11/30/16 Page 22 of 33 MOTION FOR PARTIAL 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 agency must immediately reinitiate consultation with the FWS if the amount or extent of incidental taking is exceeded.” Id. at 1034-35. Under the plain terms of the ESA regulation and this Circuit’s precedent, exceedance of the incidental take statement’s limits on C. shasta infections renders invalid the previous no- jeopardy conclusion that provided the rationale for allowing take. The agencies must reinitiate consultation and follow the ESA’s scientific and procedural mandates to determine the effects of the Project operations and whether additional mitigation measures must be employed to avoid jeopardy. NMFS cannot prejudge the outcome of the consultation and announce that its previous conclusions remain valid when its core assumptions have been disproven by the unprecedented disease rates in 2014 and 2015. C. Informal Consultation Is Not an Option The agencies have also asserted that they are engaged in informal consultation, but informal consultation is not an option here. First, the ESA regulations and the incidental take statement both require reinitiation of formal, not informal, consultation when the limits in the incidental take statement have been exceeded. See Or. Natural Desert Ass’n. v. Tidwell, 716 F. Supp. 2d 982, 1006 (D. Or. 2010) (Forest Service violated the ESA by engaging in informal, rather than formal, consultation after take limits in incidental take statement were exceeded). Second, the ESA regulations allow informal consultation only for actions that are not likely to adversely affect a listed species and only prior to formal consultation. An action agency can pursue “informal consultation” prior to formal consultation to determine whether the action “may affect,” but is “not likely to adversely affect” a listed species. 50 C.F.R. §§ 402.02, 402.13, 402.14(b)(1). If an action may adversely affect a listed species, formal consultation is required. In 2000, the Bureau claimed it could engage in informal consultation on Klamath Project operations after expiration of a biological opinion and before consultation had produced a new one. This Court held that the Bureau could not pursue informal consultation when it “knew full well its operation of the Project pursuant to the plan might affect the coho salmon” and Case 3:16-cv-06863-JSC Document 8 Filed 11/30/16 Page 23 of 33 MOTION FOR PARTIAL 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 formal consultation was required, and the communications between the agencies “were designed to assist in determining the extent of the plan’s impact on the coho salmon” rather than to make a may affect finding. PCFFA v. Bureau of Reclamation, 138 F.Supp.2d 1228, 1244 (N.D. Cal. 2001) (emphasis in original). Here, the Bureau determined in its 2012 biological assessment that its operation of the Klamath Project is likely to adversely affect SONCC coho, and NMFS and the Bureau completed formal consultation in 2013. The Bureau cannot plausibly contend that it needs to engage in informal consultation to decide whether its Project operations adversely affect coho. Instead, the communications between the agencies and the work of the disease technical advisory team have been designed to determine the extent of the harm to coho and ways to ameliorate it. This type of analysis and crafting of mitigation measures must take place through the formal consultation process. For all these reasons, plaintiffs seek an order directing both the Bureau and NMFS to reinitiate formal consultation.4 II. THIS COURT SHOULD ISSUE AN INJUNCTION REQUIRING FLOWS TO PREVENT EXCESSIVE DISEASE AND MORTALITIES IN JUVENILE COHO DURING THE REINITIATED CONSULTATION Injunctive relief is governed by a four-factor standard, requiring the plaintiff to demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a 4 The ESA regulations impose the reinitiation of consultation obligation on both the action and expert agency in identical language, and courts have found the obligation applicable to both. Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1229 (9th Cir. 2008); Pacificans for a Scenic Coast v. Cal. DOT, Case No. 15-cv-02090-VC (N.D. Cal. Sept. 2, 2016). While Sierra Club v. Marsh, 816 F.2d 1376, 1386 (9th Cir. 1987), indicated that FWS could not compel the Corps to comply with its request for reinitiated consultation, here, the Bureau sought comprehensive discussions when disease rates exceeded the incidental take statement’s limits in a letter whose subject includes reinitiation of formal consultation. NMFS responded by sidestepping the formal consultation process and asserting that its 2013 biological opinion remains valid. In these circumstances, it is appropriate to order NMFS as well as the Bureau to conduct reinitiated consultation. Case 3:16-cv-06863-JSC Document 8 Filed 11/30/16 Page 24 of 33 MOTION FOR PARTIAL 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. Cottonwood Envtl. Law Ctr. v. Forest Serv., 789 F.3d 1075, 1088 (9th Cir. 2015) (quoting eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)). Cottonwood held that plaintiffs must prove irreparable harm in ESA cases, but the other factors are predetermined by the judgments made by Congress in the ESA or they are easily met when the ESA’s mandates are violated. More specifically, “Congress established an unparalleled public interest in the ‘incalculable’ value of preserving endangered species. It is the incalculability of the injury that renders the ‘remedies available at law, such as monetary damages . . .inadequate.’” Cottonwood, 789 F.3d at 1090 (quoting TVA v. Hill, 437 U.S. 153, 187-88 (1978)); see also Amoco Prod. Co. v. Vill. of Gambell, AK, 480 U.S. 531, 545 (1987) (“Environmental injury, by its nature, can seldom be adequately remedied by money damages.”). Congress therefore determined the public interest favors protecting endangered species and makes remedies at law insufficient. As to the balance of hardships, the Supreme Court explained in TVA, 437 U.S. at 184, 194, the “plain intent of Congress in enacting the statute was to halt and reverse the trend toward species extinction, whatever the cost,” and thus “the balance has been struck in favor of affording endangered species the highest of priorities.” See Sierra Club v. Marsh, 816 F.2d 1376, 1386 (9th Cir. 1987) (risks “must be borne by the project, not by endangered species”). Courts lack the authority to strike a different balance or act contrary to this stated public purpose. This request for injunctive relief turns on whether plaintiffs can demonstrate irreparable harm. The toll that the Klamath Project is taking on SONCC coho more than suffices. A. The Bureau’s Operation of the Klamath Project is Causing Irreparable Harm to SONCC Coho Salmon. The 2013 biological opinion acknowledged the need for flushing flows to remove the polychaete host worms, yet it did not mandate that they occur. It also approved a regime in which flows could be and in fact have been at minimums lower than those that had been in place Case 3:16-cv-06863-JSC Document 8 Filed 11/30/16 Page 25 of 33 MOTION FOR PARTIAL 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 since 2006. That risky approach literally proved fatal in 2014 and 2015 when C. shasta disease rates spiked to 81% and 91%, dwarfing the recorded average of 30% and the cap imposed in the incidental take statement of 49%. Belchik Decl. ¶¶ 24-30. Such high disease rates and the mortality that regularly follows place intolerable stresses on a species in as dire straits as SONCC coho. Id. ¶¶ 29; Hillemeier Decl. ¶¶ 15-18, 20. C. shasta causes necrosis of intestinal tissue that can be accompanied by a severe inflammatory reaction, hemorrhaging intestinal lining, and subsequent death. The level of infection and mortality in recent years has reduced the fitness and abundance of what is already an extremely stressed salmon population. At the time of listing, SONCC coho numbers were less than 1% of historic abundance, and their numbers have continued to decline with three of the Klamath Basin populations highly or very highly stressed, as low flows and altered river habitat from the Klamath Project have continued to take their toll. Belchik Decl. ¶¶ 29-30, 40. Coho salmon have a three-year life cycle. They spend up to 18 months in freshwater until their outmigration to the ocean between March and June. The unprecedented C. shasta infestations in 2014 and 2015 decimated two of the three year-classes of SONCC coho. If the year-classes that were hit with such high C. shasta infection rates in 2014 and 2015 face a similarly ill-fated outmigration in 2017 or 2018, their prospects for survival, not to mention recovery, would be severely impeded. The impact of a repeat of 2014, 2015, or even higher than average C. shasta disease rates could be irreversible and push SONCC coho over the brink of extinction. Id. ¶¶11, 29-30, 40; Hillemeier Decl. ¶¶ 15-18, 20. Indeed, NMFS has established a recovery goal and habitat indicator of no greater than 10% mortality of coho juveniles in the Klamath River from C. shasta, which it equates with natural background levels. SONCC Coho Recovery Plan at 4-14 & 4-15. Multiple years of high infection rates and mortalities are moving the coho in the opposite direction.5 5 Preliminary reports indicate C. shasta infections in 2016 were approximately 38%, still greater than the average recorded infection rates of 30%, even though 2016 was a wetter water year. Belchik Decl. ¶ 40. The 2013 BiOp erroneously assumed C. shasta rates would decline under Case 3:16-cv-06863-JSC Document 8 Filed 11/30/16 Page 26 of 33 MOTION FOR PARTIAL 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 Such harm is unquestionably irreparable. It further weakens an imperiled species and runs counter to the direction set by Congress in the ESA to the detriment of the plaintiffs who depend on and derive enjoyment from healthy Klamath salmon populations. See Decls. of Glen Spain and Konrad Fisher (Nov. 29, 2016). It causes egregious harm to the Yurok Tribe, which has federally reserved fishing rights in the Klamath River that are integral to the Yurok way of life for subsistence, commercial, and cultural purposes. As the Ninth Circuit has recognized, the Klamath fishery “is not much less necessary to the existence of the [Yurok] than the atmosphere they breathe.” Blake v. Arnett, 663 F.2d 906, 909 (9th Cir. 1981) (quoting United States v. Winans, 198 U.S. 371, 381 (1905)); see Decl. of Chairman Thomas P. O’Rourke (Nov. 29, 2016).6 B. Additional Flows Are Needed to Prevent Excessive C. Shasta Outbreaks or to Reduce Them if Preventive Flows Fail to Stem the Tide. This motion asks the Court to order two types of flows: (1) prevention flows in the winter-spring that flush out the host worms and disrupt their habitat; and (2) emergency dilution flows in the event of high incidence of C. shasta spores or disease, even with prevention flows. Both types of flows are part of the disease management recommendations made by technical experts on the DTAT and are based on the best available science compiled by that team and embodied in the FWS technical memos. While the guidance document includes other measures, the prevention and emergency dilution flows are the most urgent and critical to implement immediately, long before reinitiated consultation will produce a long-term mitigation plan. Hillemeier Decl. ¶ 23; Belchik Decl. ¶¶ 39-52. the approved flow regime, and SONCC coho may need a greater respite from C. shasta disease in the wetter conditions prevailing in 2016 than what occurred. The reinitiated consultation will provide a basis for determining what flows are needed. 6 The O’Rourke, Spain, Fisher, and Mark DuPont Declarations demonstrate that plaintiffs are dedicated to restoring Klamath salmon, are injured by the coho salmon’s decline, and their injuries would be redressed by the relief sought. Accordingly, plaintiffs have standing to bring this litigation. Friends of the Earth v. Laidlaw Envtl. Serv., 528 U.S. 167, 180-81 (2000). Case 3:16-cv-06863-JSC Document 8 Filed 11/30/16 Page 27 of 33 MOTION FOR PARTIAL 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 1. Annual Prevention Flows Are Desperately Needed and Would be the Most Effective Way to Reduce C. shasta Infection Rates. The most effective mitigation measure consists of prevention flows in winter-spring to flush out the host worms that harbor C. shasta spores, thereby attacking the problem at its source. C. shasta spores are not spread from salmon to salmon. Instead, polychaete worms are the intermediate host for C. shasta spores. The polychaete host worms thrive when sediments accumulate on the riverbed and when water temperatures are elevated in the spring to early summer. The best science indicates that peak flows with elevated water velocities can dislodge the host worms from the riverbed and flush them downstream. Belchik Decl. ¶¶ 34, 40-52. Peak flows that flush out sediments and the host worms have become rare in recent years as a result of Klamath Project operations. Flows of less than 2,500 cubic feet per second (“cfs”), which have regularly occurred under the biological opinion, allow sediments to settle on the bed, creating the type of habitat that allows polychaete worms to proliferate. Sedimentation Tech. Mem. (Hillemeier Exh. 9, App. B) at 25. To reduce populations of infected host worms, the Guidance Document recommends and this motion asks the Court to require prevention flows in the form of either: (1) surface flushing flows (management guidance 1); or (2) deep flushing or armor disturbing flows (management guidance 2), depending on water conditions. Such flows, sometimes called environmental flows, are a well-established mitigation measure to reduce the detrimental effects of water diversions. Id. The 2013 biological opinion documented the important ecological role of surface flushing flows in reducing spore concentrations and polychaete densities, but noted that the spring minimum flows and the disease management flows will be lower than needed to adequately dilute high C. shasta spore concentrations given the drier conditions caused by the Klamath Project. BiOp at 342-43. Severely reduced flows due to the Klamath Project have created conditions that enable the polychaete host worms to thrive. The sedimentation technical memo explains (App. B at 25, 26): From 1964 to 1999, the average cumulative duration of Surface Flushing flows Case 3:16-cv-06863-JSC Document 8 Filed 11/30/16 Page 28 of 33 MOTION FOR PARTIAL 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 exceeded 22 days per water year. From 2000 to 2016, the average cumulative duration of Surface Flushing flow exceeded five days in only one water year and no sediment mobilization flows occurred in 12 of the 17 water years. From 1964 to 1999, the time between Surface Flushing events below Iron Gate Dam was typically 1-2 years, which is consistent with channel maintenance needs of natural streams reported in the literature. Since 2000, there have been three occasions when the duration between Surface Flushing events approached or exceeded 5 years. Given the scarcity of surface flushing flows in the past 17 years, the guidance document recommends winter-spring flushing flows every winter going forward, except in years when deep flushing flows are provided. Such flows are needed because of the toll the high C. shasta infection rates took on the SONCC coho year classes that outmigrated in 2014 and 2015. The progeny of those salmon will be outmigrating in 2017 and 2018 and cannot withstand another high year of C. shasta mortality. Hillemeier Decl. ¶¶ 15-18, 20; Belchik Decl. ¶¶ 29, 40, 51. Management guidance 2 describes alternative flows with larger volumes to move sediment from deeper layers and dislodge and remove polychaete worms attached to the bed. Such flows attack the polychaete habitat to a greater degree than the surface flushing flows, particularly when enhanced by coinciding with flows generated by tributary accretions and snow melt. However, a deep flushing flow is appropriate only when water is available. Hillemeier Exh. 9 at 9-10. Deep flushing flows have had the most demonstrated success in reducing polychaete density because they disturb the worms’ habitat, but they have become rare since 1999. Belchik Decl. ¶¶ 41-47. They were observed only twice in the past 10 years and in only one year – 2006 – was the river in deep flushing state for more than 10 days. A deep flushing flow event that occurred in March 2016, measurably decreased polychaete density, although it was of short duration and may have deposited some of the host worms further downstream. Hillemeier Exh. 9, App. B at 18, 25-26; App. D at 5, 7, 10. Case 3:16-cv-06863-JSC Document 8 Filed 11/30/16 Page 29 of 33 MOTION FOR PARTIAL 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 The biological opinion recognized that deep flushing and high velocity flows likely “reduce polychaete abundance and disturb their fine sediment habitat,” but it failed to require flows of sufficient duration to scour slack water habitats supporting polychaetes and prevent fine sediment deposition in drier water years. BiOp at 344, 345-46. Requiring deep flushing flows is in keeping with the SONCC coho recovery plan, which calls for implementation of a plan to use “all means possible to disrupt the life cycle of the C. shasta parasite.” Recovery Plan at 6-3. Plaintiffs ask the Court to order the Bureau to release flows in winter-spring to flush out polychaetes and to model these flows on management guidance 1 and 2. The surface flushing flows should be the minimum that is required, but when water conditions permit, the Bureau should release deep flushing or armor disturbing flows. The timing of such releases should be left to the Bureau’s discretion to enable the Bureau to take advantage of flows and to address safety concerns. Management guidance 1 and 2 provide a sound structure for such flows. The Court should direct the parties to have their technical experts confer and propose a detailed order addressing timing, duration, and operational considerations for the particular flushing flows. 2. Emergency Dilution Flows Should Be Required When Infection Rates or C. shasta Spore Concentrations Spike. If the prevention flows fail to keep C. shasta infections in check, emergency flows should be required in the spring to dilute C. shasta concentrations. Diluting spore concentrations with pulse flows will reduce the number of juvenile infections. Requiring dilution flows in the face of high infection rates mirrors the biological opinion’s real-time disease management with two critical exceptions. Belchik Decl. ¶¶ 25-26, 42. The biological opinion acknowledges the need for emergency flows, but its real-time disease management is insufficient because it provides dilution flows: (1) only when surplus water is available; and (2) only when infection rates hit the 49% cap. Id. This approach places the risks on the fish, rather than the project, which is the opposite of what the ESA requires. See Case 3:16-cv-06863-JSC Document 8 Filed 11/30/16 Page 30 of 33 MOTION FOR PARTIAL 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 Sierra Club v. Marsh, 816 F.2d at 1386; Klamath Water Users Protective Ass’n v. Patterson, 204 F.3d 1206 (9th Cir. 1999) (Treaty rights and ESA take precedence). The Court should order emergency dilution flows in the spring when C. shasta infection rates are approaching the historic average of 30% in order to prevent rates approaching 49%. The incidental take statement’s infection rate trigger of 49% is too high since a measured rate of 49% means it is too late to avoid exceeding that 49% cap. Management guidance 4 has two triggers for emergency dilution flows based on elevated spore concentrations or infection rates that would indicate infection rates are on track to exceed the historic average and possibly the 49% cap. When the trigger conditions are met, sufficient amounts of water, based on past experience, should be released at Iron Gate Dam to dilute C. shasta spore concentrations. Hillemeier Exh. 9 at 10-12; Belchik Decl. ¶¶ 47-50. The real-time disease management is also deficient because it requires emergency dilution flows only if surplus water is available. Surplus water refers to water above what has been allocated for irrigation and Upper Klamath Lake Levels. The Bureau locks in an irrigation allocation by April 1st and Bureau policies and the biological opinion provide that the irrigation will not be reduced for the rest of the water year. Belchik Decl. ¶¶ 25, 50. Because surplus water may be unavailable, the emergency dilution flows envisioned in the biological opinion may not occur, even when they are needed to reduce C. shasta spore concentrations and infections. To avoid this dilemma, plaintiffs ask the Court to require the Bureau either to reserve a sufficient amount of water for emergency dilution flows or to condition the irrigation allocation so that emergency dilution flows will occur if conditions warrant. As with the flushing flows, the Court should direct the technical experts for the parties to propose a detailed injunction setting out the precise triggers, volumes, timing, and duration of emergency dilution flows. C. An Injunction Is Needed Quickly and At Least By March 1, 2017 To Be Feasible and To Allow Flexibility in Implementation. All parties likely will concede that mitigation is needed to reduce C. shasta infections. Case 3:16-cv-06863-JSC Document 8 Filed 11/30/16 Page 31 of 33 MOTION FOR PARTIAL 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 As Benjamin Franklin observed, “an ounce of prevention is worth a pound of cure.” The window for prophylactic measures is upon us with choices needing to be made between surface and deep flushing flows based on water availability, safety concerns, and timing to coincide with and amplify natural events. An early decision will afford the Bureau to flexibility in implementing flushing flows. April 1st is a pivotal date for determining water availability for prevention flows if they have not already occurred, and for emergency dilution flows, should they be needed. Unless enjoined, the Bureau is poised to lock in an irrigation allocation on April 1st, which could make water unavailable if infection rates or spore concentrations spike. Belchik Decl. ¶¶ 25, 50. Plaintiffs ask for a decision by mid-February to allow two weeks for the technical experts to develop the specific parameters of the flow regime to guide decisions that may need to be made in March and early April. CONCLUSION Plaintiffs ask the Court to (1) hold that the Bureau and NMFS are in violation of the ESA and its implementing regulations by failing to reinitiate formal consultation; (2) order the Bureau and NMFS to reinitiate formal consultation on Klamath Project operations; and (3) issue an injunction requiring winter-spring flushing flows and, when necessary, emergency dilution flows modeled on the management guidance recommendations and the best available science until the reinitiated formal consultation is complete. DATED this 30th day of November, 2016. Respectfully submitted, /s/ Kristen L. Boyles KRISTEN L. BOYLES (CSBA # 158450) PATTI A. GOLDMAN (WSBA # 24426) [Pro Hac Vice Admission Pending] STEPHANIE TSOSIE (WSBA #49840) [Pro Hac Vice Admission Pending] Earthjustice Case 3:16-cv-06863-JSC Document 8 Filed 11/30/16 Page 32 of 33 MOTION FOR PARTIAL 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 705 Second Avenue, Suite 203 Seattle, WA 98104 Ph: (206) 343-7340 | Fax: (206) 343-1526 kboyles@earthjustice.org pgoldman@earthjustice.org stsosie@earthjustice.org TRENT ORR (CSBA # 77656) Earthjustice 50 California, Suite 400 San Francisco, CA 94111 Ph: (415) 217-2082 | Fax: (415) 217-2040 torr@earthjustice.org Attorneys for Plaintiffs for Pacific Coast Federation of Fishermen’s Associations, Institute for Fisheries Resources, and Klamath Riverkeeper CHEYENNE SANDERS (CSBA # 307359) Yurok Tribe 190 Klamath Blvd. P.O. BOX 1027 Klamath, CA 95548 Ph: (707) 482-1350 | Fax: (707) 482-1377 csanders@yuroktribe.nsn.us Attorney for Plaintiff Yurok Tribe Case 3:16-cv-06863-JSC Document 8 Filed 11/30/16 Page 33 of 33 [PROPOSED] ORDER GRANTING MOTION FOR PARTIAL 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 KRISTEN L. BOYLES (CSBA # 158450) PATTI A. GOLDMAN (WSBA # 24426) [Pro Hac Vice Admission Pending] STEPHANIE TSOSIE (WSBA #49840) [Pro Hac Vice Admission Pending] Earthjustice 705 Second Avenue, Suite 203 Seattle, WA 98104 Ph: (206) 343-7340 | Fax: (206) 343-1526 kboyles@earthjustice.org pgoldman@earthjustice.org stsosie@earthjustice.org TRENT ORR (CSBA # 77656) Earthjustice 50 California, Suite 400 San Francisco, CA 94111 Ph: (415) 217-2082 | Fax: (415) 217-2040 torr@earthjustice.org Attorneys for Plaintiffs for Pacific Coast Federation of Fishermen’s Associations, Institute for Fisheries Resources, and Klamath Riverkeeper CHEYENNE SANDERS (CSBA # 307359) Yurok Tribe 190 Klamath Blvd. P.O. BOX 1027 Klamath, CA 95548 Ph: (707) 482-1350 | Fax: (707) 482-1377 csanders@yuroktribe.nsn.us Attorney for Plaintiff Yurok Tribe UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION YUROK TRIBE, PACIFIC COAST FEDERATION OF FISHERMEN’S ASSOCIATIONS, INSTITUTE FOR FISHERIES RESOURCES, and KLAMATH RIVERKEEPER, Plaintiffs, v. Case No. 3:16-cv-06863-JSC Related Case No. C16-cv-04294-WHO [PROPOSED] ORDER GRANTING PARTIAL SUMMARY JUDGMENT AND INJUNCTIVE RELIEF Case 3:16-cv-06863-JSC Document 8-1 Filed 11/30/16 Page 1 of 6 [PROPOSED] ORDER GRANTING MOTION FOR PARTIAL 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 U.S. BUREAU OF RECLAMATION, and NATIONAL MARINE FISHERIES SERVICE, Defendants. This matter is before the Court on plaintiffs’ motion for partial summary judgment on their first claim for relief seeking reinitiation of formal consultation. After reviewing the briefs and hearing oral argument and for the reasons in the Court’s opinion, the Court enjoins defendants U.S. Bureau of Reclamation and National Marine Fisheries Service (“NMFS”) to reinitiate formal consultation on the impacts of 2013-2023 Klamath Project operations on Southern Oregon/Northern California Coast (“SONCC”) coho salmon, which are listed as threatened under the Endangered Species Act. Upon consideration of the plaintiffs’ request for injunctive relief while the Bureau and NMFS complete reinitiated formal consultation, the supporting declarations of Michael Belchik and Dave Hillemeier, and the work of the leading C. shasta experts, which complied the best available science on the causes of and measures to reduce high C. shasta infections in juvenile salmon, the Court orders injunctive relief to prevent or reduce irreparable harm to SONCC coho salmon under the 2013-2023 Klamath Project operations approved in the 2013 biological opinion. National Marine Fisheries Service and U.S. Fish and Wildlife Service, Biological Opinions on the Effects of Proposed Klamath Project Operations from May 31, 2013, through March 31, 2023, on Five Federally Listed Threatened and Endangered Species (May 2013) https://www.fws.gov/klamathfallsfwo/news/2013%20BO/2013-Final-Klamath-Project-BO.pdf. The Court hereby orders the Bureau to require two types of flows: (1) winter-spring flushing flows designed to dislodge and flush out polychaete worms that host C. shasta; and (2) emergency dilution flows in the spring if C. shasta infection rates or spore concentrations exceed threshold levels. These two types of mitigation flows are supported by the best available Case 3:16-cv-06863-JSC Document 8-1 Filed 11/30/16 Page 2 of 6 [PROPOSED] ORDER GRANTING MOTION FOR PARTIAL 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 science, which was compiled by the Fish and Wildlife Service (“FWS”) in four technical memorandum and subjected to peer review as part of a process designed by the Disease Technical Advisory Team (“DTAT”) comprised of technical experts from the federal defendants and the Yurok, Karuk, and Hoopa Valley Tribes. The Tribal technical experts on the DTAT relied on the technical memos to develop draft Measures to Reduce Ceratanova Shasta Infection of Klamath River Salmonids: A Guidance Document (Nov. 9, 2016) (“Guidance Document”). The Guidance Document provides the scientific rationale for these flushing and emergency dilution flows, drawing from the technical memos. The 2013 biological opinion also provides scientific support for flushing and emergency dilution flows as needed mitigation measures to reduce C. shasta densities and infections. Winter-spring flushing flows are supported by the FWS technical memo on sedimentation mobilization and flow history, which found that at flow releases less than 2,500 cubic feet per second (“cfs”) below Iron Gate Dam, suspended sediments settle and accumulate on the bed, providing ideal habitat for polychaete host worms. The minimum flows required under the 2013 biological opinion are all under 2,500 cfs and therefore allow conditions to fall below 2,500 cfs and support polychaete populations. The biological opinion documented the effectiveness of surface flushing flows and deep flushing flows in flushing out polychaete worms that host C. shasta spores. The technical memo on sediment mobilization and flow history describes surface flushing and deep flushing flows as needed to restore balance and reduce polychaete populations and habitat. From 1964-1999, the average duration of surface flushing flows exceeded 22 days per year. Since 1999, the average duration has exceeded five days in only one year and no sediment mobilization occurred in 12 of the last 17 water years. Environmental flows released to mitigate detrimental impacts of water diversions are a well- Case 3:16-cv-06863-JSC Document 8-1 Filed 11/30/16 Page 3 of 6 [PROPOSED] ORDER GRANTING MOTION FOR PARTIAL 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 established management measure and are recognized as such in the 2013 biological opinion on 2013-2023 Klamath Project operations and the sediment mobilization technical memo. The Guidance Document recommends two types of winter-spring flushing flows. Surface flushing flows release water to flush out the host worms. Deep flushing flows and armor disturbing flows release larger volumes of water and dislodge the host worms attached to the bed and flush out sediments that support them. Both are designed to prevent C. shasta infections by reducing polychaete populations, which host the C. shasta spores. Disrupting the life cycle of the C.shasta parasite is in keeping with the SONCC coho recovery plan, which required such action. Final Recovery Plan for SONCC Coho Salmon at 6-3 (2014). The Court finds, based on the best available science, that releasing flows in the winter- spring time frame to disrupt the life cycle of C. shasta by way of disturbing the habitat of the polychaete host worms is likely the most effective mitigation measure to reduce C. shasta infections. Accordingly, the Court enjoins the Bureau to implement either surface flushing flows modeled on management guidance 1 or the deep flushing or armor disturbing flows modeled on management guidance 2 contained the Guidance Document. The surface flushing flows are the minimum that is required. Because the deep flushing and armor disturbing flows depend on the availability of water at critical time junctures, the Court expects the Bureau to release deep flushing or armor disturbing flows when water conditions permit. The timing of such releases is left to the Bureau’s discretion to enable the Bureau to take advantage of tributary accretions and snow melt and to address safety concerns. In addition to requiring winter-spring flushing flows, the Court enjoins the Bureau to release emergency dilution flows between April 1-June 15 when C. shasta concentrations or infection rates indicate infection rates are likely to exceed the historic average of 30%. Case 3:16-cv-06863-JSC Document 8-1 Filed 11/30/16 Page 4 of 6 [PROPOSED] ORDER GRANTING MOTION FOR PARTIAL 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 Management guidance 4 has two alternative triggers: (1) infection rates above a certain level; and (2) spore concentrations above a certain level. Requiring emergency dilution flows is consistent with the biological opinion, which has real-time disease management that NMFS relied on in reaching its no jeopardy conclusion. The biological opinion calls for pulse flows if C. shasta infection rates reach 49%. The guidance document has a lower threshold and is designed to prevent disease rates from reaching 49%. SONCC coho salmon have a three-year life cycle. Because outmigrating juvenile salmon experienced 81% C. shasta infections rates in 2014 and 91% in 2015, and the progeny of these year classes will be outmigrating in 2017 and 2018, it is critical not to subject these year classes to another year of high C. shasta infection rates. The Court therefore finds it appropriate to require emergency dilution flows before infection rates are at or near 49%. The biological opinion requires emergency dilution flows only if surplus water is available. Surplus water refers to water above what has been allocated for irrigation and Upper Klamath Lake Levels. The Bureau locks in an irrigation allocation by April 1st and Bureau policies and the biological opinion provide that the irrigation will not be reduced for the rest of the water year. Because surplus water may be unavailable, the emergency dilution flows envisioned in the biological opinion may not occur, even when they are needed to reduce C. shasta spore concentrations and infections. The Guidance Document recommends that 50,000 acre feet of water be reserved for emergency dilution flows, but that amount of water may not be needed with the winter-spring flushing flows. The Court hereby orders the Bureau either to reserve a sufficient amount of water for emergency dilution flows or to condition the irrigation allocation so that emergency dilution Case 3:16-cv-06863-JSC Document 8-1 Filed 11/30/16 Page 5 of 6 [PROPOSED] ORDER GRANTING MOTION FOR PARTIAL 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 Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104-1711 (206) 343-7340 flows will occur if conditions warrant. It is further ordered that the technical experts for the parties will confer and submit to the Court within two weeks a proposed order fleshing out the parameters of the required mitigation measures – the winter-spring flushing flows and the emergency dilution flows – based on the best available science. It is further ordered that all other provisions of the 2013 biological opinion and incidental take statement shall remain in effect pending completion of the reinitiated formal consultation by the Bureau and NMFS. It is further ordered that the Bureau will work with the Tribes and other technical experts on C. shasta in the Klamath River to develop and fund research and monitoring activities associated with the mitigation measures required by this injunction to assess their efficacy and ascertain whether other mitigation measures are needed. It is further ordered that no bond or security shall be required. IT IS SO ORDERED. DATED this _____ day of _____________________, 2017. United States District Judge Case 3:16-cv-06863-JSC Document 8-1 Filed 11/30/16 Page 6 of 6