HomeMy WebLinkAbout2003-06-02 City Council (8)TO:HONORABLE CITY COUNCIL
FROM:CITY MANAGER DEPARTMENT: UTILITIES
DATE:
SUBJECT:
JUNE 2, 2003 CMR:304:03
TRINITY RIVER FISHERIES RESTORATION EFFORTS
RECOMMENDATION
Staff recommends Council support the Northern California Power Agency (NCPA) in its
efforts to restore the Trinity River Fisheries (TRY).
BACKGROUND
On May 15, 2003 Mayor Mossar and Vic Mayor Beecham wrote a memorandum to the
City Council on the subject of agendizing the Trinity River litigation issue for discussion
and direction. The amount of water diversion from the Trinity River to the Sacramento
River has been an ongoing controversy since the Trinity Dana and attendant facilities
were constructed in early 1960s. Efforts to restore the fisheries have been ongoing for a
number of years, including a legislated increase in the annual minimum flow release to
340,000 acre feet set in the 1992 Central Valley Project Improvement Act.
In December 2000, the Secretary of the Interior Bruce Babbitt, after a lengthy
environmental process, issued a Record of Decision (ROD) that would greatly increase
the downstream flows (from Lewiston Dam on the Trinity River) from 340,000 to
640,000 acre-feet in an average water year (downstream flows vary from 368,000 to
815,000 acre-feet depending on the type of water year). The primary justification for the
large increase in water to be released down the Trinity River is to provide purging flows
to move sediment out of the spawning gravel, mitigate river channelizing, and limit
vegetation growth along the banks.
The Westlands Water District challenged Secretary Babbitt’s decision in federal court on
the basis that the environmental process was flawed. The Sacramento Municipal Utility
District (SMUD) and Northern California Power Agency (NCPA), of which Palo Alto is a
member, joined the litigation, questioning the basic science being used to justify
CMR:304:03 Page 1 of 6
increased flows and also pointing out that the power-related and Sacramento River
fishery and environmental impacts were not properly considered.
On October 21, 2002, the Palo Alto City Council discussed a City Manager Report on the
Trinity River Fisheries (TRF) issue (CMR: 423:02). Staff’s recommendation was that the
City Council support NCPA’s ongoing due process litigation. At that meeting Council
Member Beecham made a motion, seconded by Council Member Morton, that "Palo
Alto’s Commissioner to the Northern California Power Agency (NCPA) receives
direction from Council prior to taking any position at NCPA on any continuing NCPA
participation in litigation following the Judge’s decision on the current NCPA litigation.
Furthermore, the Council expresses its full support for the restoration of the Trinity
River." The motion passed 4-3 with two Council members absent.
On December 9, 2002 Judge Wanger issued a 143-page order and final judgment finding
that the Department of Interior (DOI) failed to satisfy the National Environmental Policy
Act (Attachment A). The judge ruled that there were serious violations of the law and
ordered that a Supplemental Environmental Impact Study (SEIS) be completed within
120 days before major increases in water flow schedules are made. Judge Wanger found:
a. DOI failed to take into account the potential impacts on endangered species in
the Sacramento River and Delta, and the effects on Northern California power
supply and reliability;
b. Insufficient public consideration of the impacts of requirements imposed by the
National Marine Fisheries Setwice and U.S. Fish and Wildlife Service relative
to salinity and temperature control;
c. Use of an unfair and unlawfully narrow scope and purpose of the
Environmental Impact Statement; and
d. Reliance on an unreasonably narrow range of alternatives.
On April 7, 2003 Judge Wanger issued a 74-page decision allowing the DOI discretion to
increase flows in the Trinity River by 50,000 acre-feet, if needed and not available from
other sources (Attachment B). The judge also ordered that the SEIS be completed by
July 2004. In this order, the judge denied the Hoopa Valley Tribe’s motion to stay the
December 10 order. The judge has allowed for some increased flow from 340,000 up to
452,000 based on his opinion that an increase of 112,000 acre feet will have (or should
have) minimal impact on the CVP water and power customers. In response to a petition
by the Hoopa and Yurok Tribes to allow full implementation of higher flows while the
SEIS is being completed, the judge once again was unwilling to allow the higher flows.
The judge’s April 2003 decision states in part:
CMR:304:03 Page 2 of 6
’°The risks of threatened environmental harm to the Sacramento Delta and the
south are too great to justify going beyond such releases until a lawful SEIS has
been completed."
Previously, several environmental groups had sent letters last summer to SMUD and
NCPA members, including Palo Alto, requesting that support for the litigation be
withdrawn. Staff’s recommendation was that the SEIS process should go forward in
order to complete a legitimate and balanced environmental decision-making process.
The s coping part of the SEIS process, which was underway last year at this time and
suspended pending further litigation developments, is expected to resume shortly.
Balanced stakeholder input was the basis for establishment of the Trinity River Adaptive
Management Working Group (TAMWG) by the Secretary of the Interior, the charter for
which expressly " provides an opportunity for stakeholders to give policy and
management advice about restoration efforts." Jim Feider, Electric Utility Director for
the City of Redding (a member of NCPA), was appointed to the TAMWG by Secretary of
Interior Gale Norton. NCPA continues to participate in various technical forums to
advocate a balanced, collaborative and open approach to TRF restoration.
On May 15, 2003 SMUD’s Board of Directors, following the recommendation of its
Policy Committee, voted to withdraw from participation in further study related to the
restoration of the Trinity River fisheries. The Board directed the General Manager, "to
cease participation and activities related to the United States Department of Interior’s
supplemental environmental impact study on the restoration of the Trinity River
fisheries."
On April 14th and May 15th, the Director of Utilities informed the Council of activities
that had transpired related to TRF (Attachments C and D).
DISCUSSION
Judge Wanger’s orders have been appealed to the 9th Circuit Court of Appeals. The
appellants are the DOI, Westlands Water District and the Hoopa Valley Tribe. The
appellants will file their opening briefs with the appeals court on or before June 16th.
Opposition briefs are due to be filed on or before July 28, 2003 by the appellees. NCPA
will likely file an opposition brief that will attempt to preserve Judge Wanger’s orders.
The appellants will be able to file a reply by September 8, 2003 and the appellees may
reply on or before September 29, 2003. Subsequently, the 9th circuit will set a schedule
for hearing of the appeal. NCPA attorneys estinaate that it will be approximately a year
from then that the case would be heard. However, emergency motions or other
unforeseen events may accelerate or delay the timeline.
CMR:304:03 Page 3 of 6
NCPA estimates the cost to its members to continue the pursuit of an alternative
approach, without SMUD’s assistance, to be about $250,000 in the next year (FY03-04).
Palo Alto’s share of these costs is estimated to be about $65,000. There is a likelihood
that a portion of the costs for technical studies will be borne by the federal agencies as
they implement the judge’s orders to complete an SEIS.
The several benefits to Palo Alto in continuing to support an SEIS are discussed below.
The financial benefits to Palo Alto are uncertain and will depend on the outcome of the
SEIS process and whether and how much the proposed ROD flows are altered. For
example, if the proposed ROD flows are reduced by 100,000 acre-feet per year, the
resulting energy savings will be approximately 85,000 MWh (using the assumption that
0.85 MWh is saved for each acre-foot). Since Palo Alto is entitled to an 11.6% share of
CVP energy output, the energy savings to Palo Alto would be approximately 10,000
MWh (11.6% of 85,000 MWh). Assuming a market price of $50/MWh the energy cost
savings to Palo Alto would be $500,000/year. Technical studies estimate that using
alternative approaches to restoring the TRF would result in reductions to the proposed
ROD flows ranging bet~een 29,000 to 259,000 acre-feet, for a critical-dry to extremely
wet water year respectively; with the proposed ROD flows being reduced by 151,000
acre-feet in an average water y ear. In such a case, the savings to Palo Alto would be
approximately $750,000.
The advantages of continuing to support the SEIS include the following:
1. gully supports Trinity River Fisheries restoration
2. Has possibility of saving water, energy, money, and reducing
Sacramento River and Bay Delta Fisheries
3. Reduces financial impact to Palo Alto citizens
4. Increases supply reliability
pressure on
The disadvantages of continuing to support the SEIS include the following:
1. Attracts negative attention of environmental and Native American groups
2. Might not succeed in saving water, energy, money, and reducing pressure on
Sacramento River and Bay Delta Fisheries compared to the ROD, i.e. might
ultimately confirm that the existing ROD flow releases is the best solution.
As this report was being prepared the California Independent System Operator (CAISO)
issued a Stage 1 Electrical Emergency on May 28th for the period from 3 p.m. to 8 p.m.,
since electric operating reserves dropped below the 7% required minimum.
CMR:304:03 Page 4 of 6
RESOURCE IMPACT
NCPA has spent approximately $475,000 on fees for fish biologists, hydrologists,
consultants and attorneys since January 2001. Palo Alto’s share of these costs is
approximately 25% or about $120,000 over the last two-plus years. Palo Alto’s share of
future NCPA costs is uncertain but is estimated to be about $65,000 in FY 03-04. Benefits
are uncertain but is estimated to be about $750,000/year.
POLICY IMPLICATIONS
This recommendation is consistent with the Council approved Utilities Strategic Plan to
implement programs that improve the quality of the environment, and to preserve a
supply cost advantage.
TIMELINE
NCPA will likely file an opposition brief in the 9th Circuit Court of Appeals that will
attempt to preserve Judge Wanger’s December 2002 and April 2003 orders on or before
July 28th, 2003. NCPA attorneys estimate that it will be approximately fall 2004 before
the case would be heard. However, emergency motions or other unforeseen events may
accelerate or delay this timeline.
ATTACHMENTS
A: December 9, 2002 Memorandum Decision And Order Re: Cross-Motions For
Summary Judgment, United States District Court, Eastern District Of California
B: April 7, 2003 Memorandum Decision And Order Re: Federal Defendants Motion To
Modify Injunction Re: Supplemental EIS; Defendant Hoopa Valley Tribe’s Motion
For Partial Stay Pending Appeal And For Modification Of Injunctive Relief, United
States District Court, Eastern District Of California
C: Email from John Ulrich to City Council et al dated April 14, 2003
D: Email from John Ulrich to City Council et al dated May 15, 2003
E: Memorandum from Mayor Mossar and Vice Mayor Beecham dated May 15, 2003
PREPARED BY:
Tom Kabat, Senior Resource Originator
CMR:304:03
~andran, Assistant Director
Page 5 of 6
DEPARTMENT HEAD:
CITY MANAGER APPROVAL:
:ctor of Utilities
EMII~Y HARRISON
Assistant City Manager
CMR:304:03 Page 6 of 6
AIq-ACHMENT:C Page 1 of 2
From: Ulrich, John
Sent: Monday, April 14, 2003 5:48 PM
To: Council Members
Cc: Council Appointed Officers; Harrison, Emily; Bern Beecham (E-mail); Dexter Dawes (E-
mail); Dick 6Rosenbaum (E-mail); George Bechtel (E-mail); Richard Carlson (E-mail);
Richard Ferguson (E-mail)
Subject: Trinity River Update- Revision
Dear City Councilmembers:
This email is to update you on activities related to the Trinity River. We are providing this
information to you as a follow up to the discussion and actions taken by the Council last October.
October 21, 2002 - Council Member Beecham made a motion, seconded by Council Member
Morton, that "Palo Alto’s Commissioner to the Northern California Power Agency (NCPA) receives
direction from Counci! prior to taking any position at NCPA on any continuing NCPA participation
in litigation following the Judge’s decision on the current NCPA litigation. Furthermore, the Council
expresses its full support for the restoration of the Trinity River." The motion passed 4-3 with two
Council members absent.
December 10, 2002 - Judge Wanger issues a 143-page order and final judgment finding that the
Department of Interior (DOI) failed to satisfy the National Environmental Policy Act (NEPA). Judge
Wanger found non-compliance stemming from:
o DOI failed to take into account the potential impacts on endangered species in the
Sacramento River and Delta, and the effects on Northern California power supply and
reliability;
o Insufficient public consideration of the impacts of requirements imposed by the National
Marine Fisheries Selwice and U.S. Fish and Wildlife Service relative to salinity and
temperature control;
o Use of an unfair and unlawfully narrow scope and purpose of the Environmental Impact
Statement;
o Reliance on an unreasonably narrow range of alternatives.
In light of Judge Wanger’s decision regarding NEPA, the Judge ordered DOI to prepare a
Supplemental Environmental Impact Statement (EIS) addressing the full scope of impacts.
Additionally, Judge Wanger ordered implementation of the non-flow measures of the Record of
Decision (ROD) and set the flow at the ROD’s recormnended "dry year" level of 452,600 acre-feet per
year. (The level was rounded up to 453,000 acre-feet per year in Judge Wanger’s Final Decision.)
Early 2003 9th Circuit appeals to Judge Wanger’s December 10, 2002 decision-
~On January 24, 2003 the Hoopa Tribe filed a notice of appeal
~On February 10, 2003 the DOI filed a notice of appeal
On February 19, 2003 the Westlands Water District filed a notice of appeal
~ NCPA staff does not appeal the Judge’s order.
Early 2003 additional motions-
o On January 22, 2003 DOI files a motion to modify Judge Wanger’s December 10, 2002
decision, to extend the period for completion of the SEIS to July 9, 2004.
file://C:\Files\Temp\Trinity River Update- Revision.htm 5/28/2003
Page 2 of 2
On January 24, 2003 the Hoopa Tribe files a motion in the District Court asking for a stay of
the injunctive order regarding flows (in effect implementing the ROD) and vacating the order
regarding the Supplemental EIS.
In response to a request from Judge Wanger, DOI submits alternative plans for increased
fishery flows in the river.
March 31, 2003 - The Hoopa Tribe files an emergency motion with the Ninth Circuit asking for a
stay of Judge Wanger’s order pending the outcome of the appeal (again, effectively implementing the
ROD)
April 4, 2003 - Sacramento Municipal Utility District (SMUD) decided, "to decline to participate in
the appeals of a federal lawsuit over the Trinity River." SMUD will continue to participate in the
public process as DOI develops the SEIS study.
April 7, 2003 - Judge Wanger issues a 74-page decision allowing the DOI discretion to increase
flows in the Trinity River by 50,000, if needed and not available from other sources.
April 11, 2003 - NCPA staff files an opposition to the Hoopa emergency motion. The opposition is
based on the Judge’s decision that the flows in the river are well above what Congess concluded was
needed to preserve the fishery in the river and that the SEIS is essential to an informed decision
regarding restoration of the river.
Please call me if I can provide any additional information.
Thanks,
Jotm Ulrich
Director of Utilities
City of Palo Alto
650-329-2277
j 9_h_~;u ~i_c_lk@_~L9 ~ al o alto. o r ~
file://C:\Files\Temp\Trinity River Update- Revision.htm 5/28/2003
Page 1 of I
ATTACHMENT: D
From: Ulrich, John
Sent: Thursday, May 15, 2003 4:12 PM
To: Council Members; Council Appointed Officers
Cc: Harrison, Emily; Bern Beecham (E-mail); Dexter Dawes (E-mail); Dick Rosenbaum (E-
mail); George Bechtel (E-mail); Richard Carlson (E-mail); Richard Ferguson (E-mail)
Subject: Trinity River Update
Dear City Councilmembers:
This email is to update you on activities related to the Trinity River fisheries restoration since my last update on
April 14, 2003. We are providing this information to you as a follow up to the discussion and actions taken by
the Council last October.
Since April 2003 - After Sacramento Municipal Utility District (SMUD) decided on April 4 "to decline to
participate in the appeals of a federal lawsuit over the Trinity River," it continued to receive a lot of input on this
matter from interested parties. At the time, SMUD indicated that it would continue to participate in the public
process as DOI develops the SEIS study, however, SMUD staff, board and committee members began
reassessing the ramifications of further participation.
April 22, 2003 - Judges Rymer and Kleinfeld of the Ninth Circuit denied the Hoopa Valley Tribe’s March 31
emergency motion for a stay of Judge Wanger’s decision on appeal.
May 13, 2003 - SMUD’s Policy Committee met to reconsider its position on District’s participation in the United
States Department of Interior’s supplemental environmental impact study related to the restoration of the Trinity
River fisheries. Committee recommends withdrawal of participation.
May 15, 2003 - SMUD’s Board of Directors, following recommendation of its Policy Committee, voted to
withdraw from participation in further study related to the restoration of the Trinity River fisheries. The Board
directed the General Manager "to cease participation and activities related to the United States Department of
Interior’s supplemental environmental impact study on the restoration of the Trinity River fisheries."
CPAU staff will assess the costs and benefits of staying the course on this matter and provide this analysis
to the Council.
Please call me if I can provide any additional information.
Thanks,
John Ulrich
file://C:~Files\Temp\Trinity River Update.htm 5/28/2003
Office of the City Council
MEMORANDUM
Memo to: Colleagues
From:Mayor Mossar and Vice Mayor Beecham
Date:May 15, 2003
Subject:Agendize Trinity River Litigation Discussion and Direction
4ENT: E
Dear Colleagues,
Over the past several years, there has been litigation in federal court
regarding the adequacy of the Department of ]:nterior’s (DO]:) Environmental
]:mpact Statement (E]:S) supporting a proposed water flow regime to help
restore the Trinity River to a healthy fish habitat. While the Northern
California Power Agency (NCPA) supports beginning the restoration program,
NCPA has participated in this litigation, arguing that energy issues previously
raised by NCPA to DO]: were not adequately addressed in the. E]:S. ]:n his
December 9, 2002 decision, U.S. District _Judge Wanger strongly supported
NCPA’s position and directed DO]: to urgently prepare a supplemental E]:S
addressing these and other issues.
On October 21, 2002 Council passed a motion that Palo Alto’s Commissioner
to NCPA receive direction from Council prior to taking any position at NCPA
on any continuing NCPA participation in litigation following the ]udge’s
decision. Furthermore, the Council expressed its full support for the
restoration of the Trinity River.
This week, the Sacramento Municipal Utilities District voted to cease
participation with and activities related to the Department of ]:nterior’s
supplemental ETS.
At ~uvA, no Commission action on this ....." .....~-~"^~....I~ug+uoJ~ ~+ +u~uu~u for
upcoming May meeting. Further, NCPA staff is not currently expecting to
request any Commission action at the June meeting.
Nonetheless, we believe it is appropriate for Council to agendize a report on
and discussion of the Trinity River matter so as to be able to vote and
provide Vice Mayor Beecham, as Palo Alto’s Commissioner to NCPA, with
Council’s direction regarding possible further NCPA participation in the Trinity
litigation,
With respect,
Dena Mossar
Mayor
Bern Beecham
Vice Mayor
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
WESTLANDS WATER DISTRICT, SAN
LUIS & DELTA-MENDOTA WATER
AUTHORITY, and SAN BENITO COUNTY
WATER DISTRICT,
Plaintiffs,
SACRAMENTO MUNICIPAL UTILITY
DISTRICT,
Plaintiff-intervenor,
NORTHERN CALIFORNIA POWER
ASSOCIATION,
P!aintiff-Intervenor
V.
UNITED STATES DEPARTMENT OF THE
INTERIOR, ET AL,
Defendants,
HOOPA VALLEY TRIBE,
Defendant-intervenor,
YUROK TRIBE,
Defendant-intervenor.
C!V-F-00-7!24 OWW DLB
MEMORANDUM DECISION AND
ORDER RE: CROSS-MOTIONS FOR
SUM~LhRY JUDGMENT (DOCS.
233, 238, 243, 247, 252)
Before the court are cross-motions for summary judgment
pursuant to Rule 56 of the Federa! Rules of Civil Procedure.
Oral argument was heard August 20, 2002.
Plaintiffs Westlands Water District, San Luis & Delta
Mendota Water Authority and San Benito County Water District were
represented by Danie! O’Hanlon, Esq. Plaintiff intervenor,
Sacramento Municipal Utility District, was represented by Steve
Saxton, Esq., and David Lindgren, Esq. Northern California Power
Association, Plaintiff Intervenor, was represented by T. Ronald
Lapheimer, Esq. Defendant United States Department of the
Interior and al! other named Federal defendants,~ were
~ The "federal defendants" include: The Department of the
interior; the Secretary of the Department of the interior; the
Bureau of Reclamation; the CoK@issioner of the Bureau of
Reclamation; the Regiona! Director of the Mid-Pacific Region of
the Bureau of Reclamation; the U.S. Fish and Wildlife Service;
the Director of the Fish and Wildlife Service; the Operations
Manager of the California!Nevada Operations Office of the Fish
and Wildlife Service; the Department of Commerce; the Secretary
of the Department of Commerce; the Assistant Administrator for
Fisheries of the U.S. Nationa! Marine Fisheries Service; and the
Regiona! Administrator for the Southwest Region of the U.S.
represented by Charles Shockey, Esq. The Hoopa Valley Tribe,
Defendant-Intervenor, was represented by Thomas Schlosser, Esq.
The Yurok Tribe was represented by Scott Williams, Esq.
I.FACTUAL AND PROCEDUP~hL BACKGROUND
National Marine Fisheries Service.
This suit involves the United States Department of
Interior’s ("interior") administration of the Trinity River
Division (~TRD")2 of the Central Valley Project (~’CVP") and
Interior’s implementation of Section 3406(b) (23)3 of the Central
2 The TRD consists of: the Trinity and Lewiston dams and
their reservoirs; Trinity and Lewiston powerplants; Clear Creek
tunnel; Judge Francis Cart powerhouse; Whiskeytown dam and lake;
Spring Creek tunnel and powerplant; Spring Creek debris dam and
reservoir; and related pumping and distribution facilities.
s CVPIA §§ 3406(b) and (b)(23) read:
The Secretary, immediately upon the enactment of this
title, shall operate the Centra! Valley Project to meet
al! obligations under State and Federa! law, including
but not limited to the Federa! Endangered Species Act,
16 U.S.C. § 1531, et seq., and all decisions of the
California State Water Resources Control Board
establishing conditions on applicable licenses and
permits for the project. The Secretary, in
consultation with other State and Federa! agencies,
indian tribes, and affected interests, is further
authorized and directed to:
(23) in order to meet Federa! trust responsibilities to
protect the fishery resources of the Hoopa Valley
Tribe, and to meet the fishery restoration goals of the
Act of October 24, 1984, Public Law 98-541, provide
through the Trinity River Division, for water years
1992 through 1996, an instream release of water to the
Trinity River of not less than three hundred and forty
thousand acre-feet per year for the purposes of fishery
restoration, propagation, and maintenance and,
(A) by September 30, 1996, the Secretary, after
consultation with the Hoopa Valley Tribe, shall
complete the Trinity River Flow Evaluation Study
currently being conducted by the United States Fish and
Wildlife Service under the mandate of th@ Secretarial
Decision of January 14, 1981, in a manner which insures
the development of recommendations, based on the best
available scientific data, regarding permanent instream
fishery flow requirements and Trinity River Division
operating criteria and procedures for the restoration
and maintenance of the Trinity River fishery; and
(B) not later than December 31, 1996, the Secretary
shal! forward the recommendations of the Trinity River
Flow Evaluation Study, referred to in subparagraph (A)
of this paragraph, to the Committee on Energy and
Natura! Resources and the Select Committee on indian
5
Affairs of the Senate and the Committee on Interior and
Insular Affairs and the Committee on Merchant Marine
and Fisheries of the House of Representatives. if the
Secretary and the Hoopa Valley Tribe concur in these
recommendations, any increase to the minimum Trinity
River instream fishery releases established under this
paragraph and the operating criteria and procedures
referred to in subparagraph (A) shal! be implemented
accordingly. If the Hoopa Valley Tribe and the
Secretary do not concur, the minimum Trinity River
instream fishery releases established under this
paragraph shall remain in effect unless increased by an
Act of Congress, appropriate judicial decree, or
agreement between the Secretary and the Hoopa Valley
Tribe. Costs associated with implemenzation of this
paragraph shal! be reimbursable as operation and
maintenance expenditures pursuant to existing law.
Central Valley Project Improvement Act, Pub. L. No. 102-575, §
3406(b) (23), 106 Star. 460.0, at 4720-21.
Valley Project Improvement Act (~’CVPIA"),4 to restore and maintain
the Trinity River fishery.
II.UNDISPUTED FACTS
~ Pub. L. No. 102-575, § 3401-12, 106 S<at. 4600, 4706
(Oct. 30, 1992).
7
The TRD was authorized by an Act of Congress on August 12,
1955.~ Among the purposes of the TRD Act are that the Secretary
provide necessary and beneficial services such as water supply
and power and that the Secretary operate the TRD to effectuate
the fullest, most beneficial and most economic utilization of the
River and adopt appropriate measures to protect fish and wildlife
in the Trinity River basin. Trinity River Act of 1955 §2.
Construction of the TRD was completed and operations commenced in
1964. The TRD transfers water from the Klamath River Basin,
which includes the Trinity River, in Trinity County, California,
to the Sacramento River Basin. its primary function is to store
Trinity River water for regulated diversion to California’s
Central Valley for agricultural, municipal, and industrial uses.
It also produces electrical power. The TRD accounts for twenty-
five percent (25%) (500 megawatts (Mw)) of the 2000 Mw of CVP-
generated electric power.
The Trinity River Basin is home to protected fish species:
The native anadromous salmonid species of interest in
the mainstem Trinity River and its tributaries include
chinook salmon, coho salmon, and steelhead. Of the
three species, there are two spawning populations of
chinook salmon (spring and fall) and two spawning
populations of steelhead (winter and summer). All
anadromous species begin their life in fresh water,
then migrate to the ocean to mature, and return to
spawn in fresh water.
DEIS at 3-151 to 3-152. The spring-run chinook migrates in the
~ Pub. L. No. 84-386 (Augus~ 12, 1955).
spring to summer, spawns in the early fall, rears in winter-
spring-summer, and makes its habitat for feeding in shallow,
slow-moving waters adjacent to higher water velocities. The
fall-run chinook migrates in the fall, spawns in the fall, rears
in winter-spring-summer, and makes its habitat in the same areas
as the spring-run chinook. The winter steelhead migrates in the
fall to winter, spawns between February and April, rears year-
round, and makes its habitat in areas of clean cobble where there
is. refuge from high river flow velocities. The summer steelhead
migrates in the spring to summer, spawns between February and
April, rears year-round, and makes its habitat in the same area
as its related species.
The Hoopa Valley and Yurok R~servations were established in
those Tribes’ aboriginal lands in the Klamath and Trinity River
basins. Since prehistoric times, the fishery resources of the
Klamath and Trinity Rivers have been the mainstay of Native
American culture and life in the area.
The TRD’s construction and operation resulted in the
diversion of up to ninety percent (90%) of the average annual
discharge into the Trinity River at Lewiston Dam (1,234,000 AF of
the 1,396,000 AF inflow), and blocked access to 109 miles of
steelhead and salmon spawning and rearing habitat, in response
to declining fisheries and degraded habitat conditions, Interior
decided in 1981 to increase flows into the Trinity River ranging
from 140,000 AF to 340,000 AF annually.6 In addition, the United
6 An Environmenta! Impact Statement analyzing the impacts
of increasing the instream flow of the Trinity River to 340,000
9
States Fish and Wildlife Service ("USFWS") was directed to
undertake a Flow Evaluation Study to assess fish habitat at
various flows, summarize the effectiveness of other instream and
watershed restoration activities, and recommend appropriate flows
and other measures necessary to better maintain favorable habitat
conditions. The study began in October 1984 and was completed by
a June 1999 report.
AF was issued on December 5, 1980.
!0
!n October 1984, Congress enacted the Trinity River Basin
Fish and Wildlife Management Act~ ("1984 Act") to restore fish and
SECTION i: The Congress finds that --
(i) the construction of the Trinity River division of
the Centra! Valley project in California, authorized by
the Act of August 12, 1955 (69 Stat. 719), has
substantially reduced the streamflow in the Trinity
River Basin thereby contributing to damage to pools,
spawning gravels, and rearing areas and to a drastic
reduction in the anadromous fish populations and a
decline in the scenic and recreationa! qualities of
such river system;
(2) the loss of land areas inundated by two reservoirs
constructed in connection with such project has
contributed to reductions in the populations of deer
and other wildlife historically found in the Trinity
River Basin;
(3) the Act referred to in paragraph (i) of this
section directed the Secretary of the Interior
(hereinafter in this Act referred to as the
"Secretary") to take appropriate actions to ensure the
preservation and propagation of such fish and wildlife
and additional authority was conferred on the Secretary
under the Act approved September 4, 1980 (94 Stat.
1062), to take certain actions to mitigate the impact
on fish and wildlife of the construction and operation
of the Trinity River division;
(4) activinies other than those related to the project
including, but not limited to, inadequate erosion
control and fishery harvest management practices, have
also had significant adverse effects on fish and
wildlife populations in the Trinity River Basin and are
of such a nature that the cause of any detrimental
impact on such populations canno< be attributed solely
to such activities or to the project;
(5) a fish and wildlife management program has been
developed by an existing interagency advisory group
called the Trinity River Basin Fish and Wildlife Task
Force; and
(6) the Secretary requires additional authority to
implement a basin-wide fish and wildlife management
program in order to achieve the long-term goa! of
restoring fish and wildlife populations in the Trinity
ii
wildlife populations to pre-TRD levels. The 1984 Act found that
the TRD had contributed to a ~’drastic reduction in the anadromous
fish populations." Public Law 98-541, Section 1(1).It directed
that the restoration program include:
(i) The design, construction, operation, and
maintenance of facilities to --
(A) rehabilitate fish habitats in the Trinity River
between Lewiston Dam and Weitchpec;
(B) rehabilitate fish habitats in tributaries of such
River Basin to a level approximating that which existed
immediately before the start of the construction of the
Trinity River division.
TRINITY RIVER BASIN FISH AND WILDLIFE MANAGEMENT
PROGR/~M
SEC. 2. (a) Subject to subsection (b), the 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
referred to in section i(I) and to maintain such
levels. The program shall include the fol!owing
activities:
(i) The design, construction, operation, and
maintenance of facilities to --
(A) rehabilitate fish habitats in the Trinity River
between Lewiston Dam and Weitchpec;
(B) rehabilitate fish habitats in tributaries of such
river be!ow Lewiston Dam and in the south fork of such
river; and
(C) modernize and otherwise increase the effectiveness
of the Trinity River Fish Hatchery.
(2) The establishment of a procedure to monitor (A)
the fish and wildlife stock on a continuing basis, and
(B) the effectiveness of the rehabilitation work.
(3) Such other activities as the Secretary determines
to be necessary to achieve the long-term goal of the
program.
o o o
Public Law 98-541, 98 Stat. 2721.
12
river below Lewiston Dam and in the south fork of such
river; and
(C) modernize and otherwise increase the effectiveness
of the Trinity River Fish Hatchery.
(2) The establishment of a procedure to monitor (A) the
fish and wildlife stock on a continuing basis, and (B)
the effectiveness of the rehabilitation work.
(3) Such other activities as the Secretary determines
to be necessary to achieve the long-term goal of the
program.
Public Law 98-541, Section 2(a).
In 1991, the Secretary of the Interior increased the minimum
flows in the Trinity River to 340,000 AF/year until the Trinity
River flow study was completed. The 340,000 AF number was the
third-lowest unregulated flow on record.
In 1992, Congress enacted the CVPIA to annually redirect
part of the CVP’s water to the environment. CVPIA § 3406(b)(23)
specifically authorizes and directs Interior to restore the
Trinity River. It requires that not less than 340,000 AF of
water be released into the Trinity River each year for water
years 1992-1996 in order to meet federal trust responsibilities
to the Hoopa Valley Tribe and to meet the restoration goals of
the 1984 Act. CVPIA § 3406(b) (23). It directs the Secretary of
the Interior ("Secretary"), after consultation with the Hoopa
Valley Tribe to complete the Trinity River Flow Evaluation Study
("TRFES"), which had already begun pursuant to the January 14,
1981 Secretarial Decision, no later than September 30, 1996.
CVPIA § 3406(b) (23) (A). The TRFES was to be performed "in a
manner which insures the development of recommendations, based on
the best available scientific data, regarding permanent instream
fishery flow requirements and Trinity River Division operating
criteria and procedures for the restoration and maintenance of
the Trinity River fishery." Id. Section 3406 then directs the
Secretary to fo~ard the TRFES recommendations to several
congressional committees no later than December 31, 1996. CVPIA
§ 3406(b) (23) (B). If the Secretary and the Hoopa Valley Tribe
concurred in the TRFES recommended increases for Trinity River
instream fishery flow releases established under CVPIA
§3406(b) (23) (B), such restoration flows were to be implemented
accordingly. Id. If they did not concur, the 340,000 AF minimum
flows must remain in effect unless increased by an act of
Congress, appropriate judicial decree or agreement between the
Secretary and the Hoopa Valley Tribe. Id.
In 1996, Congress amended the 1984 Act by the Trinity River
Basin Fish and wildlife Management Reauthorization Act of 1995,
Pub. L. No. 104-408, 110 Stat. 1338 (1996). The TRFES was not
timely completed. Congress directed that Trinity River
restoration be measured not only by returning adult anadromous
fish spawners, but also by the ability of dependant tribal,
commercial, and sport fisheries to participate fully, through in-
river and ocean harvest opportunities, in the benefits of the
restoration. Pub. L. No. 104-408. Congress also included
language amending the activities to be undertaken by the
Secretary. Id. The original language directed the Secretary to
’~modernize and otherwise increase the effectiveness of the
Trinity River fish hatchery. The 1996 Act adds "so that it can
best service its purpose of mitigation of fish habitat loss above
Lewiston Dam while not impairing efforts to restore and maintain
naturally reproducing anadromous fish stocks within the basin."
Id.
In January 1998, the draft Trinity River Flow Evaluation
Report (TRFER) was released. In June 1999, Interior, in
consultation with the Hoopa Valley Tribe, published the Trinity
River Flow Evaluation Final Report ("TRFEFR’). The TRFEFR
recommends permanently increasing the Trinity River fish flows
from the statutorily mandated 340,000 AF/year to between 368,900
and 815,200 AF/year, as follows:
Water-Year Class
Extremely Wet
Wet
Normal
Dry
Critica!ly Dry
Weighted Average
Instream Volume ¯
1= i000 acre-feet)
815.2
701.0
646.9
452.6
368.6
Probability of
Occurrence
0.12
0.28
0.20
0.28
0.12
594.5
TRFEFR § 8.1, p. 241.
On October 19, 1999, the United States Bureau of Reclamation
("Bureau") and the USFWS released the draft "Trinity River
15
Mainstem Fishery Restoration Environmental Impact
Statement/Report" ("DEIS"), which described alternate approaches
for restoring and maintaining the Trinity River fishery.
Interior published the availability of the draft EIS/EIR and the
commencement of a public comment period scheduled to end on
December 8, 1999. 64 Fed. Reg. 56364, 1999.WL 827447 (Oct. 19,
1999). The public comment period was extended until January 20,
2000. 64 Fed. Reg. 67584, 1999 WL 1078497 (Dec. 2, 1999); 64
Fed. Reg. 72357, 1999 WL 1247501 (Dec. 27, 1999).
On January 20, 2000, San Luis & Delta-Mendota Water
Authority (’~San Luis") submitted written comments8 criticizing the
DEIS, noting, inter alia, that the DEIS failed to analyze the
preferred alternative’s potential adverse environmental impacts
on federally listed endangered or threatened fish species within
the Sacramento River system and the Sacramento-San Joaquin Delta
("Delta"), and also failed to analyze how these adverse impacts,
if any, could be minimized or avoided. Doc. 35 at ~ 39-40 &
Ex. A.
8 ~’Com~ents of the San Luis & De!ta-Mendota Water Authority
on the Trinity River Mainstem Fishery Restoration Environmental
Impact Statement/Environmenta! Impact Report," dated January 19,
2000.
16
On March I0, 2000, Westlands Water District (’~estlands")
and San Luis sent a sixty-day notice of intent to sue to
Interior, threatening suit if Interior did not undertake a formal
ESA consultation on the TRFEFR. On March 29, 2000, Interior
forwarded the TRFEFR to Congress, pursuant to CVPIA § 3406(b) (23)
(~the Secretary shall forward the recommendations of the Trinity
River Flow Evaluation Study to the Committee on Energy and
Natural Resources and the Select Committee on Indian Affairs of
the Senate and the Committee on Interior and Insular Affairs and
the Committee on Merchant Marine and Fisheries of the House of
Representatives. If the Secretary and the Hoopa Valley Tribe
concur in these recommendations, any increase to the minimum
Trinity River instream fishery releases established under this
paragraph and the operating criteria and procedures referred to
in subparagraph (A) shall be implemented accordingly.").
On May 8, 2000, Interior responded to San Luis’ letter,
acknowledging that ESA ~§ 7 consultation over potential effects
to species listed as either threatened or endangered under the
ESA must be accomplished as part of the process of making a
decision on the Program." It reassured that ~no final decision
on the Program will be made until both the USFWS and NMFS have
issued biological opinions regarding implementation of the
Program, and that these opinions will be taken into consideration
in making such decisions."
On October 12, 2000, the National Marine Fishery Service
(~NMFS") formally issued the ’~Biological Opinion foT the Trinity
River Mainstem Fishery Restoration EIS and Its Effects on
Southern Oregon/Northern California Coast Coho Salmon, Sacramento
River Winter-run Chinook Salmon, Central Valley Spring-run
Chinook Salmon, and Central Valley Steelhead" (~’BioOp."). This
BioOp recognizes that implementation of the report will affect
many aspects of the river, including decreased water flows, and
discusses reasonable and prudent measures ("RPMs") to minimize or
avoid the preferred alternative’s impacts on ’~federally listed"
fish.
Also on October 12, 2000, the USFWS issued "Re[-]initiation
of Formal Consultation: Biological Opinion of the Effects of
Long-term Operation of the Central Valley Project and State Water
Project as Modified by Implementing the Preferred Alternative in
the Draft Environmental Impact Statement/Environmental Impact
Report for the Trinity River Mainstem Fishery Restoration
Program" (~USFWS BioOp"). On November 17, 2000, Interior
published notice of the availability of the final EIS/EIR
("FEIS"). 65 Fed. Reg. 69512, 2000 WL 1711646 (Nov. 17, 2000).
On December 14, 2000, Westlands filed suit against
defendants, alleging three claims:
(I)"maiadministration" of the Endangered Species Act
("ESA") by the USFWS;
(2) maladministration of ~he ESA by NMFS; and,
(3) violation of NEPA by all defendants.
Doc. 1 at 15-24. That same day, Westlands sought an emergency
court order to enjoin the defendant, Bruce Babbitt (as Secretary
of the Interior), from executing a Record of Decision ("ROD")
with the Hoopa Valley Tribe, scheduled to be signed on Tuesday,
December 19, 2000. On December 15, the Hoopa Valley Tribe
intervened as a defendant in the case.
The motion for a Temporary Restraining Order ("TRO") was
denied in open court on the afternoon of December 15, 2000, and
the confirming written order was entered on January 30, 2001.
Doc. 85. The application for a TRO was denied because at the
time of the December 15 hearing, Secretary Babbitt had not yet
signed the ROD. The signing was scheduled for December 19, 2000.
Until the ROD was signed, there was no "final agency action"
that Westlands could challenge and no authority existed to enjoin
the Executive from implementing the statutory function of
reaching agreement with the Indian Tribes on the Trinity River
Restoration Plan. Id. at 4-5.
On December 18, 2000, the Hoopa Valley Tribe concurred in
the TRFES recommendations. On December 19, 2000, Secretary
Babbitt and the Senior Chairman of the Hoopa Valley Tribal
Council signed the ROD. The ROD directs Interior’s agencies
implement the Preferred Alternative as described in the FEIS/EiR
and as provided below," and "to implement the reasonable and
prudent measures described in the NMFS and [USFWS] Biological
Opinions."
The ROD’s stated purpose is: restoration and perpetual
maintenance of Trinity River’s fishery resources by
rehabilitating the river and restoring attributes of a healthy,
functioning alluvial river system. AR 17694-95. The essential
components to do so are:
1.Permanently increase variable annual flows for the
Trinity River;
2.Rehabilitate physical channels, remove riparian berms
and establish side channel habitat;
3.Sediment management to increase spawning gravels and
reduce fine sediments;
4. Restore the watershed damage by land use practices;
5.Improve infrastructure, including bridges and other
structures affected by peak flows.
On January 5, 2001, Westlands and two new plaintiffs, the
San Luis and Delta-Mendota Water Authority, and the San Benito
County Water District (collectively ~water districts"), filed a
first amended complaint against the federal defendants, alleging
four causes of action:
(i) maladministration of the ESA by the USFWS, claiming that by
"issuing a non-jeopardy biological opinion that requires a
major change in CVP operations [i.e~, preventing any
upstream movement of 0.5 km or more of the X2 water quality
standard], the USFWS has exceeded its authority under the
Endangered Species Act;"
(2)maladministration of the ESA by NMFS, claiming that NMFS
acted arbitrarily and capriciously and in excess of its
authority under the ESA by issuing a biologica! opinion that
internally conflicts, because it states on one hand that
2O
(3)
"NMFS does not anticipate that implementation of the
proposed flow schedules will incidentally take any SONCC
coho salmon," and on the othe,r hand, prescribes RPMs to deal
with incidental take;
violation of NEPA by all defendants, claiming that: (a) the
draft and fina! EIS/EIRs do not analyze the impacts of
implementing the requirements of the USFWS and NMFS
biologica! opinions; (b) the fina! EIS/EIR does not
adequately describe what CVP operationa! changes wil! occur
to protect or mitigate the adverse effect upon listed fish,
upon which the draft EIS/EiR acknowledges implementation of
the preferred alternative may have a significant adverse
impact, and simply defers mitigation consideration until
later; (c) because the biological opinions modified the
proposed action by creating new environmental impacts (or
new circumstances and information), the defendants failed to
supplement the EIS/EIRs to analyze these impacts and publish
the analysis for public comment; (d) the draft and fina!
EIS/EIR do not fairly evaluate alternatives, and are in
essence a "post hoc rationalization to justify a course of
action decided upon before NEPA review even began;" (e) the
EIS/EIRs utilize improper definitions of proper purpose by
using the "healthy river" standard rather than an objective
standard; and, (f) the fina! EIS/EIR, or a supplement
thereto, does not analyze the impact of implementation of
the preferred alternative on California’s current energy
21
crisis; and,
(4)violation of the Administrative Procedure Act ("APA"),
claiming that the TRFEFR’s recommendations adopted by the
ROD are not based on the best available scientific data in
violation of CVPIA § 3406(b) (23) (A), and its conclusions are
arbitrary and capricious.
Doc. 35. The Yurok Tribe intervened as a defendant on January
19, 2001. On February 8, 2001, the Northern California Power
Agency ("NCPA") and the Sacramento Hunicipal Utility District
(’~SMUD") intervened as plaintiffs over the opposition of the
9Hoopa Valley and Yurok Tribes.
The water districts filed a motion for preliminary
injunction on January 5, 2001 and NCPA and SMUD moved for a
preliminary injunction on February 6, 2001. A preliminary
injunction issued on March 22, 2001 limiting the amount of water
releases under the ROD to a tota! of 368,600 AF. Al! other
aspects of the ROD’s Trinity River restoration plan were not
9 NCPA’s complaint-in-intervention, previously !odged on
January 5, 2001, was filed on February 6, 2001. Doc. 105.
SMUD’s complaint-in-intervention, previously !odged on January 5,
2001, was filed on February 6, 2001. Doc. 109.
22
enjoined. The decision, made without a complete administrative
record, found plaintiffs were likely to succeed on the merits of
their claim because the two BioOps imposed significant
environmenta! impacts that were not analyzed in a supplementa!
EIS/EIR ("SEIS") and the California energy crisis was a changed
circumstance that should have been evaluated, but was not.
On September 7, 2001, the United States, the water
districts, NCPA, and SMUD, but not the Tribes, entered into and
filed a stipulation to stay the~proceedings in this case unti!
Interior issued a revised ROD following completion of an SEIS.
The federa! defendants and plaintiffs agreed that the preliminary
injunction would remain in place unless otherwise ordered by the
court. The defendant-intervenor Tribes did not oppose the stay
order, but did not join the stipulation because of paragraphs
eight~° and nine~ which they believed demanded actions not
~0 Paragraph eight states:
The SEIS will address, among other topics, the issues
identified by this Court as requiring further analysis,
including impacts from the ROD or changes to Trinity
River flows on the provision of electrical power ~o the
Centra! Valley Project and the power grid serving the
State of California, along with the effects of the
Endangered Species Act § 7 biological opinions issued
by the U.S. Fish and Wildlife Service (FWS) and the
National Marine Fisheries Service (NMFS).
~ Paragraph Nine states:
The federal defendants have advised the parties to this
litigation that, through the SEIS scoping process, any
person or party wil! have the opportunity to present
other issues that they believe should be included in
the SEIS and that the federa! defendants wil! carefully
consider all such presentations. In addition to the
forma! scoping and public comment processes under NEPA
23
required by law. However, they found the proposed order
"unobjectionable." On October 8, 2001, the court signed the stay
and the CEQ regulations, the federal defendants will
use the available legal procedures to invite and
consider technica! information and expert advice from
all sources. These procedures wil! allow scientific
and technical discussion among the scientists and
technical experts of the federal defendants,
plaintiffs, plaintiff-intervenors, and defendant-
intervenors, and others having such expertise, so as to
maximize the value of the scientific and technica!
input from non-federal sources. The goa! of these
procedures is to make the SEIS a thorough,
comprehensive, and scientifically sound document, as
required by NEPA and the CEQ regulations. When
completed, the federa! defendants wil! prepare a
revised ROD. In conjunction with the SEIS and revised
ROD, the federal defendants will consult with FWS and
NMFS under ESA § 7, as appropriate. The SEIS, revised
ROD, and any biological opinions will be subject to
legal challenge on any legally cognizable grounds in
this or independent litigation by any party.
24
order.
On March 14, 2002, the Tribes moved to modify the
preliminary injunction for water year 2002 alleging changed
circumstances. On April 19, 2002, the preliminary injunction was
modified to authorize the release of 468,600 AF of water into the
Trinity River for the purposes of fishery protection and
restoration for water year 2002. All other aspects of the
Trinity River restoration plan were not subject to the
injunction. The order modifying the preliminary injunction also
vacated the stay and set a schedule for disposition of the case
on the merits. To the court’s knowledge, work on the SEIS
ceased.
On June ii, 2002 the water districts, NCPA, SMUD, the
federa! defendants, and the Hoopa Valley Tribe filed cross-
motions for summary judgment. The Yurok Tribe did not file a
cross-motion for summary judgment but opposed the water
distri~cts’, NCPA’s, and SMUD’s motions.
IIi. LEGAL STANDARD
Summary judgment is warranted only "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact." Fed. R. Civ. P. 56(c) ;
California v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998). The
evidence must be viewed in light most favorable to the nonmoving
party. Indiana Lumbermens Mut. ins. Co. v. West Oregon Wood
25
Products, Inc., 268 F.3d 639, 644 (9th Cir. 2001), amended by
2001 WL 1490998 (9th Cir. 2001).
The moving party bears the initia! burden of demonstrating
the absence of a genuine issue of fact. Devereaux v. Abbey, 263
F.3d 1070, 1076 (9th Cir. 2001). If the moving party fails to
meet this burden, "the nonmoving party has no obligation to
produce anything, even if the nonmoving party would have the
ultimate burden of persuasion at trial." Nissan Fire & Marine
Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102-03 (9th
Cir. 2000). However, if the nonmoving party has the burden of
proof at trial, the moving party must only show "that there is an
absence of evidence to support the nonmoving party’s case."
Ce!otex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Once the moving party has met its burden of proof, the non-
moving party must produce evidence on which a reasonable trier of
fact could find in its favor viewing the record as a whole in
light of the evidentiary burden the law places on that party.
Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (gth Cir.
1995). The nonmoving party cannot simply rest on its allegations
without any significant probative evidence tending to support the
complaint. Devereaux, 263 F.3d at 1076.
IT]he plain language of Rule 56(c) mandates the entry
of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an
element essential to the party’s case, and on which
that party will bear the burden of proof at trial. In
such a situation, there can be "no genuine issue as to
any material fact," since a complete failure of proof
concerning an essential element of the nonmoving
p~rty’s case necessarily renders all other facts
immaterial.
26
Celotex Corp., 477 U.S. at 322-23.
IV. DISCUSSION
Plaintiffs and plaintiff-intervenors~2 move for summary
judgment on five NEPA issues: i) the Preferred Alternative’s
impact on the ESA-listed species in the Sacramento River and
Delta were not adequately assessed; 2) the impacts of mitigation
measures mandated by the BioOps were not properly assessed; 3)
the impact of the Preferred Alternative on power system
reliability was not adequately assessed; 4) Interior improperly
applied an unreasonably narrow definition of EIS purpose and
artificially restricted the range of alternatives considered
under NEPA; and 5) Interior’s environmental assessment was too
late. They also move for summary judgment on two ESA issues: I)
the USFWS BloOp unlawfully mandates major changes to CVP
operations; 2) the NMFS BloOp arbitrarily mandates implementation
of the ROD flows in the absence of the lethal take of Trinity
River fish. Finally, plaintiffs move for summary judgment
arguing the Secretary’s actions in authorizing the ROD f!ows were
arbitrary and capricious in that there was no adequate basis in
=~xpe~len~~’ ~= or science for determining that the adopted permanent
flows are necessary or bene{~ciai.
~2 The water districts and plaintiff-intervenors divided
the arguments among themselves and then joined each others’
motions. The water districts and plaintiff-intervenors, SMUD and
the power generators, will be referred to jointly as
"plaintiffs."
27
The Hoopa Valley Tribe opposes Plaintiffs’ summary judgment
motions arguing: i) further NEPA review is irreconcilable with
the CVPIA; and 2) the ROD is neither arbitrary, capricious, nor
contrary to law. The Tribe also argues that the CVPIA and equity
principles limit the available remedies.
The federa! defendants move for summary judgment arguing
they have complied: i) with NEPA; and, 2) with the ESA.The
Yurok Tribe argues that the federal government’s trust
responsibility requires restoration be given "paramount
consideration."
A.APPLICABILITY OF FURTHER NEPA REVIEW UNDER CVPIA §3406(b) (23)
The Hoopa Tribe contends that the Secretary has no
discretion to delay implementing the f!ow study recommendations
because the Tribe formally concurred in those recommendations in
December 2000 and under CVPIA § 3406(b) (23) the Secretary no
longer has discretion after such a concurrence.
NEPA requires federal agencies, to the fullest extent
possible, to ’~include in every recommendation or report on
proposals for legislation and other major Federa! actions
significantly affecting the quality of the human environment," an
environmenta! impact statement that includes the impacts of and
alternatives to the proposed action. 42 U.S.C. § 4332(2) (C) .
NEPA is given the broadest possible interpretation. Westlands
Water Dist. v. Natural Resources Defense Council, 43 F.3d 457,
460 (9th Cir. 1994). The phrase "to the fullest extent possible"
28
is not "accidental nor hyperbolic." Flint Ridge Dev. Co. v.
Scenic Rivers Ass~ of Oklahoma, 426 U.S. 776, 787 (1976).
Instead it directs that environmental factors be considered and
!’not be shunted aside in the bureaucratic shuffle." Id.
There are however, exceptions to this rule. Where there is
a clear and unavoidable conflict in statutory authority, NEPA
gives way. Id. at 788. The test is ~whether, assuming an
environmental impact statement would otherwise be required in
this case, requiring the Secretary to prepare such a statement
would create an irreconcilable and fundamental conflict with the
Secretary’s duties." Id.; Westlands, 43 F.3d at 460 ~Only if
there is an ~irreconcilable~ conflict between the statute and NEPA
will the requirements of NEPA not apply.").
The Hoopa Valley Tribe contends that there are two ways in
which NEPA is irreconcilable with CVPIA § 3406(b) (23) : i) the
statutori!y mandated time period is too short to allow
compliance; and 2) the Secretary lacks discretion.
!. Statutorily Mandated Time Frame
There is an irreconcilable conflict when a statute mandates
a fixed time period for implementation and this time period is
too short to al!ow the agency to comply with NEPA. Flint Ridge,
426 U.S. at 791; West!ands, 43 F.3d at 460. in Flint Ridge, the
Supreme Court found that a 30-day window within which the
Secretary of Housing and Urban Development had to act, was too
short to al!ow compliance with NEPA and this caused
29
irreconcilable conflict. In Westlands, the Ninth Circuit held
CVPIA §§ 3406(b) (2) and (d) (I) were irreconcilable with NEPA
because upon enactment, the statute directed the Secretary to
take immediate action. Westlands, 43 F.3d at 460.
Section 3406(b) (23) of the CVPIA provides:
(A) by September 30, 1996, the Secretary, after
consultation with the Hoopa Valley Tribe, shall
complete the Trinity River Flow Evaluation Study
currently being conducted by the United States Fish and
Wildlife Service under the mandate of the Secretaria!
Decision of January 14, 1981 ; and
(B) not later than December 3{, i~96, the Secretary
shall forward the recommendations of the Trinity River
F!ow Evaluation Study, referred to in subparagraph (A)
of this paragraph, to [Congress]. If the Secretary and
the Hoopa Valley Tribe concur in these recommendations,
any increase to the minimum Trinity River instream
fishery releases established under this paragraph and
the operating criteria and procedures referred to in
subparagraph (A) shal! be implemented accordingly, if
the Hoopa Valley Tribe and the Secretary do not concur,
the minimum Trinity River instream fishery releases
established under this paragraph shal! remain in effect
unless increased by an Act of Congress, appropriate
judicial decree, or agreement between the Secretary and
the Hoopa Valley Tribe.
Pub. L. No. 102-575, § 3406(b) (23), 106 Stat. 4600, at 4720-21.I~
The Hoopa Tribe concedes that the four years between the 1992
enactment of the CVPIA and the 3406(b) (23) (A) September 30, 1996
deadline provide sufficient time for the Secretary to comply with
NEPA. The Tribe argues that implementation of restoration action
i~ The Tribe argues that as a native tribe, the statute
should be construed in its favor. Generally statutes are to be
construed liberally in favor of tribes and ambiguities should be
decided in their favor. Montana v. Blackfeet Tribe of indians,
471 U.S. 759, 766 (1985). The rule of statutory construction to
which the Tribe refers does not apply in this situation because
the statute is clear.
3O
cannot be further postponed for additional NEPA review because:
I) the deadlines in Section 3406(b) (23) have already passed; and
2) Congress directed that review should end once the Tribe
concurred in the recommendation.14
In Flint Ridge, the Supreme Court held the phrase ~’to the
fullest extent possible’~ in 42 U.S.C. § 4332 was not to be used
to shunt aside consideration of environmental factors ~’in the
bureaucratic shuffle." Flint Ridge, 426 U.S. at 787. ’~The
purpose of the new language is to make it clear that each agency
of the Federal Government Shall comply with the directives set
out in (§ 102(2)) Unless [sic] the existing law applicable to
~4 At oral argument the Tribe also argued that there were
two deadlines in Section (b) (23) and the three-month period
between the first deadline and second deadline was too short for
NEPA review. Section (b) (23) requires the TRFES to be completed
by September 30, 1996 and that not later than December 31, 1996
the recommendations in the TRFES must be forwarded to Congress.
Separate NEPA analyses were not required, however, interior did
not comply with either deadline.
31
such agency’s operations expressly prohibs [sic] or makes full
compliance with one of the directives impossible ....[T]he
language in section 102 is intended to assure that all agencies
of the Federal Government shall comply with the directive set out
in said section ’to the fullest extent possible’ under their
statutory authorizations and that no agency shall utilize an
excessively narrow construction of its existing statutory
authorizations to avoid compliance." Ido at 787-88 (quoting 115
Cong.Rec. 39703 (1969) (House conferees)).
Section 3406(b) (23), enacted in 1992, gave the Secretary
four years to complete and present to Congress a flow and
restoration study of the Trinity River originally called for by
1984 legislation, which had been in progress for eleven years
(since 1981 when the original restoration studies commenced). By
the 1996 statutory deadline, the Secretary had taken 15 years to
prepare for and complete the NEPA process.!s As the federal
defendants admitted at oral argument, CVPIA § 3406(b) (23) does
not "irreconcilably and fundamentally conflict" with NEPA nor is
there a clear or unavoidable conflict. See Jones v. Gordon, 792
F.2d 821, 826 (9th Cir. 1986) ("Flint Ridge applies only when a
conflict is ~clear and unavoidable’ and ~irreconcilable and
fundamental.’"). Compliance with both statutes was entirely
~ it was eighteen years from the time the study was
conceived until the TREES was published, it was another year
before the Secretary presented the recommendations to Congress,
sought the Hoopa Valley Tribe’s concurrence and was prepared to
act upon the recommendations.
32
possible. The delay or inactions of the federal defendants
cannot create a statutory conflict. See Forelaws on Board v.
Johnson, 743 F.2d 677, 683-85 (9th Cir. 1984) (holding that
agency’s failure to initiate EIS within 9-month statutory
deadline for action did not excuse NEPA compliance under Flint
Ridge).
If the requirements of NEPA are to have meaning, federal
agencies cannot be excused from compliance simply because they
move at glacial speed. To apply the Flint Ridge exception to
this case, Where the federa! agency had four years to comply with
NEPA and there was well-known statutory concern for compliance
with environmental laws,~ would negate NEPA review whenever
there is a statutory time deadline for action. Federal agencies
!6 "The Secretary, immediately upon the enactment of this
title, shal! operate the Centra! Valley Project to meet all
obligations under State and Federal law, including but not
limited to the Federal Endangered Species Act, 16 U.S.C. 1531, et
seq. " Pub. L. No. 102-575, § 3406(b) . West!ands, holds
that the subsections of Section 3406(b) control over its genera!
statements. Westlands, 43 F.3d at 461. However, Section 3406(b)
is not quoted here for the purpose of determining which section
is controlling, but merely to note that at the time Section 3406
.w.~n otherwas passed, Congress was concerned about comm!iance ~
federa! environmenta! laws.
33
could avoid NEPA compliance simply by waiting long enough. This
defeats the congressional public scrutiny and participation
purposes embodied in NEPA. The Flint Ridge exception does not
apply.
The Hoopa Tribe argues that once it concurred in the
recommendations, immediate implementation was mandatory, and
under Westlands there was no more time to comply with the NEPA
requirements. Section 3406(b)(23) is not directly analogous to
Sections 3406(b) (2) and (d) (i). Sections (b) (2) and (d) (1)
require the Secretary to take action to operate the CVP as
directed immediately upon enactment. Section (b)(23) gave the
Secretary four years to act. The Tribe argues that the correct
performance time period is not the time between enactment and the
deadline, but between the Tribe’s concurrence, signing of the ROD
and implementation of the flow and restoration recommendations.
This argument ignores that the Secretary had ample time to
complete the NEPA analysis within the statutorily al!otted time.
If it was possible for the Secretary to perform a NEPA analysis,
NEPA and Flint Ridge require it be done. That the deadline
passed does not abrogate this duty. See Forelaws, 743 F.2d at
683-86 (holding EIS required despite the fact that the statutory
deadline for action had passed).17 Flint Ridge does not apply to
~7 The Tribe argues that "the fact that the statue [sic] did
provide some time for NEPA review, and the fact that Interior did
engage in extensive NEPA review, is to conclude that the statute
allows for limited NEPA compliance." Hoopa Valley Tribe’s Reply,
Doc. 285 at 6:14-16 (emphasis in original). The Ninth Circuit in
34
this case. Section (b) (23) requires both the Hoopa Valley
Tribe’s and the Secretary’s concurrence. If the Secretary did not
lawfully concur, the prerequisites for increasing flows under
(b) (23) were not met, whether or not the Hoopa Valley Tribe
concurred. Even if (b) (23) did preclude further NEPA analysis
after concurrence, joint concurrence was required.
2. Secretarial Discretion
The Tribe maintains the Secretary has no discretion not to
implement the flow recommendations after the Tribe concurred.
Where a federal agency lacks the ability to meaningfully
influence a particular action, the procedural requirements of
NEPA do not apply. Sierra C!ub v. Babbitt, 65 F.3d 1502, 1512-13
(9th Cir. 1995). "[NEPA’s] procedural requirements are triggered
by a discretionary federal action." Id. at 1512.
Section 3406(b) (23) has several requirements: i) the TRFES
Forelaws disapproved a similar argument. It found that an
agency’s environmental review that did not comply with NEPA was
not sufficient even though the agency only had a statutorily
mandated 9-month period in which to act. Fore!aws, 743 F.2d at
683-85.
had to be completed by September 30, 1996; 2) not later than
December 31, 1996 the Secretary had to forward the TRFES
recommendations to several congressional committees; 3) if the
Secretary and the Hoopa Valley Tribe concurred in the
recommendations they were to be implemented accordingly. The
automatic, non-discretionary language was only operative after
both the Hoopa Valley Tribe and the Secretary concurred. The
Secretary had full discretion under Section 3406(b) (23), before
any concurrence, to scope, analyze, and decide what flow
recommendations to make to Congress. During the four year
statutorily authorized period for study and formulation of such
recommendations there was ample time to conduct a NEPA review.
The TRFER was not completed until June 1999. The EIS process
commenced in 1986. The DEIS was released October 19, 1999;
public comment was extended through January 20, 2000. The TRFER
was forwarded to Congress March I0, 2000; Biological Opinions
were issued October 12, 2000, and the FEIS/R was completed and
published November 17, 2000. The tribe signed the ROD December
19, 2000. The lack of discretion exception to NEPA compliance
does not apply. The Secretary ~as required to comply with NEPA
before making flow recommendations, a major federal action which
had the potential to adversely effect the environment.
There was adequate time to complete NEPA review before the
ROD was signed. The TRFER could not be implemented before that
time. The Hoopa Valley Tribe’s motion for summary judgment, on
the issue that compliance with NEPA is not required because
§3406(b) (2) is irreconcilably inconsistent with NEPA, is DENIED.
B.NEPA CLAIMS
NEPA is the "the basic national charter for protection of
the environment." Churchill County v. Norton, 276 F.3d 1060,
1072 (9th Cir. 2001), amended by 282 F.3d 1055 (9th Cir. 2002)
(quoting Blue Mountains BiodiversityProject v. Blackwood, 161
F.3d 1208, 1215 (9th Cir. 1998)). It is designed to ensure that
federal agencies will have available, and carefully consider,
detailed information concerning significant public impacts.Id.
It "guarantees that the relevant information will be made
available to the larger public audience." Id. (quoting Robertson
v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989)).
"NEPA also ’emphasizes the importance of coherent and
comprehensive up-front environmental analysis to ensure informed
decision making to the end that the agency will not act on
incomplete information, only to regret its decision after it is
too late to correct.’" Id. at 1072-73 (quoting Blue Mountains,
161 F.3d at 1216) (internal citation omitted).
NEPA requires federal agencies to prepare an EIS for "every
recommendation or report on proposals for legislation and other
major Federal actions significantly affecting the quality of the
human environment." 42 U.S.C. § 4332(2) (C). Because NEPA does
not contain a judicial review provision, an agency’s compliance
with NEPA is reviewed under the Administrative Procedure Act
("APA"), 5 U.S.C. § 706(2) (A). Ka Makani "0 Kohala Ohana Inc. v.
Water Supply, 295 F.3d 955, 959 (9th Cir. 2002). A decision not
to prepare an EIS is reviewed under the arbitrary-and-capricious
standard, unless the agency does not perform an environmental
assessment. Id.; Churchill County, 276 F.3d at 1071. If there
is no environmental assessment, the reasonableness standard is
used. Ka Makani, 2002 WL 1401978A at ~2.
The adequacy of an EIS is reviewed under the ’~rule of
reason" standard. Churchill County, 276 F.3d at 1071. ’~Under
this standard, we ask ’whether an EIS contains a reasonably
thorough discussion of the significant aspects of the probable
environmental consequences." Id. (quoting Trout Unlimited v.
Morton, 509 F.2d 1276, 1283 (9th Cir. 1974)). To determine
whether an EIS was reasonably thorough courts must make
pragmatic judgment whether the EIS’s form, content and
preparation foster both informed decision-making and informed
public participation." Id. (quoting California v. Block, 690
F.2d 753, 761 (9th Cir. 1982)).
When deciding NEPA claims, a court may not impose its own
notion of which procedures are best. Id. at 1072. Instead, a
court’s role is to take ’~a hard look." Id. ’~[NEPA] is not meant
to ’mandate particular results’ but to provide a process to ensure
that federal agencies take a ’hard look’ at the environmental
consequences of proposed acts. When an agency makes a decision
subject to the NEPA’s procedural requirements, ’the only role for
a court is to insure that the agency has considered the
environmental consequences; it cannot interject itself within the
area of discretion of the executive ....’" Tillamook County v.
U.S. Army Corps of Engineers, 288 F.3d !140, 1143-44 (9th Cir.
2002) (quoting Strycker’s Bay Neighborhood Council, Inc. v.
Karlen, 444 U.S. 223, 227 (1980)). Courts must strictly
interpret the procedural requirements of NEPA "’to the fullest
extent possible’ consistent with the policies embodied in NEPA."
Churchill, 276 F.3d at 1072.
Plaintiffs move for summary judgment on six NEPA issues:
the Preferred Alternative’s impact on the ESA-listed species in
the Sacramento River and Delta was not adequately assessed; 2)
the impacts of mitigation measures mandated by the BioOps were
not properly assessed; 3) the impacts of the Preferred
Alternative on power system reliability were not adequately
assessed; 4) Interior improperly applied a wrongfully narrowed
EIS purpose to artificially restrict the range of alternatives
considered under NEPA; 5) Interior failed to consider and adopt
an integrated management alternative; and, 6) the EIS was
performed too late.
I.Assessment of Sacramento River and Delta ESA-Listed
S~Decies
The claim the DEIS does not analyze the effects of the
Preferred Alternative on endangered fish species in the
Sacramento River and Delta, and that the issuance of the BioOps
did not cure the violation, centers on the contention the public
did not have an opportunity to review and comment on the BioOps’
analyses. The Preferred Alternative recognizes two overriding
objectives: increasing anadromous natural fish production and
allowing continued water exports and flood control. EIS 2-3.
One screening opportunity adopted as part of the Preferred
Alternative is to balance environmental and social beneficial and
adverse impacts across the Trinity River Basin, Lower Klamath
River Basin, Coastal Area, and Central Valley Basin. Id.
Plaintiffs advance three contentions: 1) the DEIS did not discuss
the Preferred Alternative’s direct effects and significance on
the Sacramento River and Delta ESA-!isted species; 2) when
notified of the deficiency, Interior failed to recirculate or
adequately supplement the DEIS; and, 3) the addition of language
from the BioOps to the FEIS did not cure the DE!S’ deficiencies.
The federal defendants and the Hoopa Tribe argue the DEIS
contained adequate analysis of the Preferred Alternative’s impact
on the Sacramento ESA-listed species, that the DEIS did not need
to be recirculated, and that the inclusion of additional
information in the FEIS was sufficient.
a. DEIS Analysis on Sacramento ESA-Listed Species
Plaintiffs claim, "while the DEIS admits that the Preferred
Alternative could cause ’significant impacts’ associated with the
’increased frequency of Sacramento basin temperature and
carryover storage violations,’ the DEIS does not analyze those
impacts. 18 AR 10653. Rather, it states that these impacts
~would need to be evaluated by the NMFS pursuant to ESA.’" 18 AR
10653." Doc. 244 at 5:3-6 (NCPA P & A’s). Defendants point to
numerous sections of the DEIS that analyze these impacts.
There is some merit to each position. The DEIS does analyze
the impact of the Preferred Alternative on the ESA-listed species
in the Sacramento River and Delta. DEIS at 3-167-169 3-172-173,
3-175-177, 3-179-184, B-60-61, B-65, B-74-75, B-77-78, B-89-90.
"Compared to existing conditions, the Preferred Alternative would
adversely affect fal!, winter, and spring chinook salmon by
significantly increasing mortality of early life stages of these
species within the upper Sacramento River." DEIS, at 3-178.
"[D]uring all months from February through June, Delta outflows
were greater than I0 percent of the years simulated (Table 3-16).
Those reductions in Delta outflow may be significant and may
adversely affect habitat for Delta species." DEIS, at 3-184.
The DEIS does not consider or identify mitigation measures for
the admitted significant impacts to those species, except to
specify "mitigation for impacts to the Delta smelt and Sacramento
splittail would consist of consulting with the Service on impacts
and implementing any ’required conservation measures.’" DEIS, at
3-184.18 This defers consideration of mitigation efforts to the
i~See also DEIS 3-178:
Significant impacts requiring mitigation for adverse
effects to anadromous salmonids in the Sacramento River
system associated with the Maximum F!ow, F!ow
Evaluation, and Percent Inflow Alternatives would
include reconsultation with NMFS under the 1993
Biological Opinion for Winter Chinook Salmon. In those
years (primarily drought conditions) when carryover
sr3rage in Shasta Reservoir is less than 1.9 maf,
Reclamation and NMFS would re-initiate consultation in
41
BioOps.19 "In that the potential adverse effects to listed
species identified in the DEIS/EIR are the subject of
an attempt to minimize losses of winter chinook salmon.
Reclamation would re-operate Shasta Dam in an effort
to reduce losses of winter chinook salmon to less than
that resulting in a jeopardy opinion.
No mention is made of what the re-operation of Shasta Dam would
entail or what effects it would have.
!~ Under the Water Quality section of the DEIS, some
possible mitigation measures are discussed for the increased
number of temperature and carryover storage violations that are
expected to occur as a result of implementing the F!ow Evaluation
Alternative. DEIS, at 3-149.
42
consultation under Section 7 of the Endangered Species Act (ESA),
with both the U.S. Fish and Wildlife Service (Service) and
National Marine Fisheries Service (NMFS), it was entirely
appropriate to defer describing specific minimization actions
until the consultations had been completed." FEiS, D2-65.
Consideration of the impacts, not only on Delta species, but all
other secondary impacts which would result, were necessarily
deferred to future analysis.
The Council on Environmental Quality (CEQ) regulations,
which implement NEPA, require a DEIS be prepared and circulated
prior to the issuance of an FEIS. 40 C.F.R. 1502.9(a). The DEIS
"must fulfill and satisfy to the fullest extent possible the
requirements established for final statements." Id. "If a draft
statement is so inadequate as to preclude meaningful analysis,
the agency shall prepare and circulate a revised draft of the
appropriate portion." Id. The CEQ regulations further direct
that a DEIS or FEIS be supplemented if "there are significant new
circumstances or information relevant to environmental concerns
and bearing on the proposed action or its~impacts." 40 C.F.R. §
1502.9(c) (ii). CEQ regulations provide that "[t]o the fullest
extent possible, agencies shall prepare draft environmenta!
impact statements concurrently with and integrated with
environmental impact analyses and related surveys and studies
required by the Endangered Species Act of 1973, and other
environmental review laws and executive orders." 40 C.F.R. §
1502.25(a).
The question here is whether the DEIS’s deferral to future
BioOps, rather than identifying impacts and discussing mitigation
measures in the DEIS, fails to provide "meaningful analysis." An
EIS must contain a discussion of possible mitigation measures.
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351-52
(1989); Okanogan Highlands Alliance v. Williams, 236 F.3d 468,
473 (9th Cir. 2000); Neighbors of Cuddy Mountain v. U.S. Forest
Service, 137 F.3d 1372, 1380 (9th Cir. 1998). "Implicit in NEPA’s
demand that an agency prepare a detailed statement on ’any
adverse environmental effects which cannot be avoided should the
proposal be implemented,’ is an understanding that the EIS will
discuss the extent to which adverse effects can be avoided."
Robertson, 490 U.S. at 351-52 (quoting 42 U.S.C. § 4332(C) (ii))
(internal citations omitted). ’Without such a discussion,
neither the agency nor other interested groups and individuals
can properly evaluate the severity of the adverse effects." Id.
Failure to discuss possible mitigating measures precludes the
parties from meaningful analysis and Interior did not circulate a
revised draft.2°
b. ~ing of the EIS
Plaintiffs’ assertion that a final EIS should have been
20 interior argues section 1502.25 directs a DEIS be
prepared concurrently with studies required under other
environmenta! laws. However, the consultation that resulted in
the BioOps in this case did not occur until approximately seven
months after the DEIS was circulated. The discussion of
mitigation measures was left up to an unspecified future study.
44
completed before the Trinity River flow study was submitted to
countered is answered by Interior’s position that the EIS was
programmatic and project specific and centered on the
recommendations for restoring Trinity River flows and related
measures to rehabilitate the fishery, which in turn had to be
reviewed by Congress and then concurred in by the Hoopa Valley
Tribe. FEIS pp. 1-3. Title 40 C.F.R. §1508.25(a) (2) authorizes
a programmatic EIS for ’~[cumulative actions, which, when viewed
with other proposed actions, have cumulatively significant
impacts and therefore should be discussed in the same impact
statement." Interior correctly maintains that the flow study was
one of several related actions appropriately discussed in a
single FEIS which incorporated all components of the Trinity
River restoration plan and culminated in the ROD, for which the
FEIS was prepared. Requiring a separate EIS for each component
of a single major federal action could unduly delay and overtax
governmental resources. March v. Oregon Natural Resources
Council, 490 U.S. 360-71 (1989).
However, where, as here, most of the Agency’s discussion and
response to disputed issues of impacts is not presented until
long after the public comment period on the DEIS closed and
substantial issues were raised which were not subjected to
informed public participation, the NEPA process broke down.
c. Inclusion of Mitigation Factors in FEIS
Plaintiffs argue that the inclusion of mitigation factors in
the FEIS did not correct the deficiency in the DEIS because the
FEIS mitigation factors were taken from the two B±oOps which were
excluded from public scrutiny and not subjected to public
comment. Plaintiffs request the ROD be set aside.
NEPA serves dual purposes: ~IIt ensures that the agency, in
reaching its decision, will have available, and will carefully
consider, detailed information concerning significant
environmental impacts; it also guarantees that the relevant
information will be made available to the larger audience that
may also play a role in both the decisionmaking process and the
implementation of that decision." Robertson, 490 U.S. at 349
(’~!t gives the public the assurance that the agency has indeed
considered environmental concerns in its decisionmaking process,
and, perhaps more significantly, provides a springboard for
public comment.") (internal quotations and citations omitted);
Northwest Res. Info. Ctr., Inc. v. Nat~ Marine Fisheries Serv.,
56 F.3d 1060, 1064 (9th Cir. 1995) (~’The purposes of an EIS are
to provide decisionmakers with sufficiently detailed information
to aid in determining whether to proceed with the action in light
of its environmental consequences and to provide the public with
information and an opportunity to participate in the information
gathering process.").
Inclusion of new information in the FEIS (bypassing public
input) does not automatically invalidate the FEIS. The CEQ
regulations provide a procedure by which new information in an
FEIS may be subjected to NEPA review. 40 C.F.R. § 1502.9(c).
That procedure determines whether information is significant
enough to warrant additional public comment, as part of the
flexibility agencies have in responding to public concerns.
California v. Block, 690 F.2d 753, 771 (9th Cir. 1982) ("To
effectuate [the purpose of public comment], agencies must have
some flexibility to modify alternatives canvassed in the draft
EIS to reflect public input.").
See
Section 1502.9(c) provides that an agency shall prepare a
supplement to a draft or final EIS if: 1) there are substantial
changes in the proposed action that are relevant to the
environmental concerns; or 2) there are environmentally relevant,
significant,21 new circumstances or information that bear on the
2! The CEQ regulations define significantly as:
"Significantly" as used in NEPA requires considerations
of both context and intensity:
(a) Context. This means that the significance of an
action must be analyzed in severa! contexts such as
society as a whole (human, nationa!), the affected
region, the affected interests, and the !ocality.
Significance varies with the setting of the proposed
action. For instance, in the case of a site-specific
action, significance would usually depend upon the
effects in the !ocale rather than in the world as a
whole. Both short- and long-term effects are relevant.
(b) intensity. This refers to the severity of impact.
Responsible officials must bear in mind that more than
one agency may make decisions about partia! aspects of
a major action. The fol!owing should be considered in
evaluating intensity:
(!) Impacts that may be both beneficial and
adverse. A significant effect may exist even if the
Federa! agency believes that on balance the effect will
be beneficial.
(2) The degree to which the proposed action
affects public health or safety.
47
proposed action or its impacts. 40 C.F.R. § 1502.9(c) (I). ’~[A]n
agency need not supplement an EIS every time new information
comes to light after the EIS is finalized. To require otherwise
would render agency decisionmaking intractable, always awaiting
updated information only to find the new information outdated by
(3) Unique characteristics of the geographic area
such as proximity to historic or cultural resources,
park lands, prime farmlands, wetlands, wild and scenic
rivers, or ecologically critical areas.
(4) The degree to which the effects on the quality
of the human environment are likely to be highly
controversial.
(5) The degree to which the possible effects on
the human environment are highly uncertain or involve
unique or unknown risks.
(6) The degree to which the action may establish a
precedent for future actions with significant effects
or represents a decision in principle about a future
consideration.
(7) Whether the action is related to other actions
with individually insignificant but cumulatively
significant impacts. Significance exists if it is
reasonable to anticipate a cumulatively significant
impact on the environment. Significance cannot be
avoided by terming an action temporary or by breaking
it down into smal! component parts.
(8) The degree to which the action may adversely
affect districts, sites, highways, structures, or
objects listed in or eligible for listing in the
Nationa! Register of Historic Places or may cause loss
or destruction of significant scientific, cultural, or
historica! resources.
(9) The degree to which the action may adversely
affect an endangered or threatened species or its
habitat that has been determined to be critica! under
the Endangered Species Act of 1973.
(I0) Whether the action threatens a violation of
Federa!, State, or loca! law or requirements imposed
for the protection of the environment.
40 C.F.R. § 1508.27.
48
the time a decision is made." Marsh v. Oregon Natural Res.
Council, 490 U.S. 360, 373 (1989). However, ~’[i]f there remains
major Federal action to occur, and the new information is
sufficient to show that the remaining action will affect the
quality of the human environment in a significant manner or to a
significant extent not already considered a supplementa! EIS must
be prepared." Id. at 374.
New information is significant where it "provides a
seriously different picture of the environmental landscape."
City of Olmsted Falls, Ohio v. Fed. Aviation Admin., 292 F.3d
261, 274 (D.C. Cir. 2002); see also Davis v. Latschar, 202 F.3d
359, 369 (D.C. Cir. 2000) (’~[O]nly those changes that cause
effects which are significantly different from those already
studied require supplementary consideration.") (internal
quotations omitted). "[T]he key to whether a Supplemental
Environmental Impact Statement is necessary is whether the
proposed [work] will have a significant impact on the environment
in a manner not previously evaluated and considered." South
Trenton Residents Against 29 v. Fed. Highway Admin., 176 F.3d
658, 663 (3d Cir. 1999).
An agency decision to forego completing an SEIS will not be
set aside unless it is arbitrary and capricious. Friends of the
Clearwater v. Dombeck, 222 F.3d 552, 556 (9th Cir. 2000).
’~Review under this standard is to be searching~and careful, but
remains narrow, and a court is not to substitute its judgment for
that of the agency." Id. (quoting Mr. Graham Red Squirrel v.
Espy, 986 F.2d 1568, 1571 (9th Cir. 1993).
Here, as discussed below, Interior decided all the "new"
information was not significant enough to warrant a supplemental
EIS or ~Irecirculation." "Normally, an agency rule would be
arbitrary and capricious if the agency has relied on factors
which Congress has not intended it to consider, entirely failed
to consider an important aspect of the problem, offered an
explanation for its decision 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." Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); O’Keeffe’s,
Inc. v. U.S. Consumer Product Safety Comm’n, 92 F.3d 940, 942
(9th Cir. 1996). "[T]he agency must examine the relevant data
and articulate a satisfactory explanation for its action
including a rational connection between the facts found and the
choice made." Motor Vehicle Mfrs., 463 U.S. at 43;
Dioxin/Organochlorine Ctr. v. Clarke, 57 F.3d 1517, 1525 (9th
Cir. 1995).
In this case, Interior discussed in the FEIS whether an SEIS
was necessary based on the new information. It concluded without
analysis or factual support, that the new information in the FEIS
was "mainly for clarification purposes and does not represent
significant new information requiring recirculation." FEIS D2-
71. Evaluating the significance of the new information under the
5O
"seriously different picture" standard, Interior concluded that
~none of the new information in the Final EIS rises to that
level." FEIS D2-72. This legal conclusion is wrong for the DE!S
as to Delta-Sacramento River species, BioOp RPMs, range and
substance of a reasonably integrated management alternative, and
hydropower impacts, and because the DEIS deferred al! these
issues, the public notice and comment period closed January 20,
2000, and the FEIS issued November 17, 2000, does not take a hard
look at any of the issues raised. Interior does not discuss why
it believes that the ’~new information" is not significant and
none of its responses in the FEIS analyzes the merits of new
mitigation measures;22 instead it offers an argumentative
justification for avoiding supplemental considerations by its
legal conclusion that all the issues raises are insignificant.
Plaintiffs gave notice of concerns about impacts on such species
and related issues in the public comment period. 18 AR 10653, 29
AR 17492-93, 19537-38. Because Interior did not critically
:~ After describing the legal standard for determining
whether an SEIS is required, the entirety of ~ =~n~ FEIS’ analysis
of whether the new information requires supplementation is:
The new information included in the EIS/EIR does not
include anything that triggers recircuiation under
these standards. In particular, the final document
does not reveal any new significant effects, or
substantial increases in previously identified
significant effects. Nor can any reviewer credibly
assert that the DEIR portion of the Draft environmental
document was "so fundamentally and basically inadequate
and conclusory in nature that meaningful public review
and comment were precluded."
FEIS at D2-72.
examine the relevant data or articulate the basis for its
decision not to supplement the EIS, which did not identify any
specific mitigation measures or probable secondary effects of
flow increases on Sacramento River and Delta species, but rather
deferred to future BioOps and/or ESA reconsultations, the
significance of this failure must be analyzed.23
Block v. California analyzes the need for a supplemental
DEIS to address information discussed for the first time in an
FEIS and holds that although agencies must have some flexibility
in modifying alternatives contained in a DEIS, an EIS must
provide the public with sufficient information to permit
meaningful consideration. Block, 690 F.2d at 771-72. ’~The EIS
process should serve both to alert the public of what the agency
intends to do and to give the public enough information to be
able to participate intelligently in the EIS process." Id. at
772.
Here the additional information, added after the DEIS was
~ in the thematic response M.tlgation to Listed Species/ESA
Consultation ~ ’," In~erlo_ again simply stated that it was
appropriate to "defer discussion of mitigation matters." FEIS,
at D2-65.
52
circulated, addressed mitigation factors. The DEIS does not
discuss mitigation factors related to the Sacramento River and
Delta ESA-listed species nor the secondary effects of increased
flows on other CVP-water users. An EIS must contain a discussion
of possible mitigation measures. Robertson, 490 U.S. at 351-52;
Okanogan, 236 F.3d at 473; Neighbors of Cuddy Mountain, 137 F.3d
at 1380; see also 40 C.F.R. § 1502.14(f) (mitigation measures
shall be included in discussion of alternatives); 40 C.F.R. §
1502.16(h) (mitigation measures required). "Implicit in NEPA’s
demand that an agency prepare a detailed statement on ’any
adverse environmental effects which cannot be avoided should the
proposal be implemented,’ is an understanding that the EIS will
discuss the extent to which adverse effects can be avoided."
Robertson, 490 U.S. at 351-52 (quoting 42 U.S.C. § 4332(C) (ii))
(internal citations omitted). "[O]mission of a reasonably
complete discussion of possible mitigation measures would
undermine the ’action-forcing’ function of NEPA. Without such a
discussion, neither the agency nor other interested groups and
individuals can properly evaluate the severity of the adverse
effects." id.
Block requires that a supplemental EIS be prepared if the
public was not given sufficient information to intelligently
participate in the NEPA process. Block, 690 F.2d at 771-72.
Robertson holds that failure to include mitigation measures
prevents the public from properly evaluating the proposed action.
Robertson, 490 U.S. at 351-52. Under the Block test, the
inclusion of previously undisclosed mitigation measures is
significant enough to require an SEIS.
Courts have also determined that an SEIS is required if the
changes cause effects which are significantly different from
those already studied. Davis, 202 F.3d at 369. Here, the DEIS
recognized that the impact on Sacramento River and Delta ESA-
listed species, salmon, Sacramento splittail, and Delta smelt,
was significant, but deferred determination of any mitigation
measures for future consideration. The failure to analyze, or
even identify, mitigation measures to address changes that will
be caused by the new flow regime and their effects, have an
undetermined potential to be different from those already
studied. See Robertson, 490 U.S. at 352 ("An adverse effect that
can be fully remedied by, for example, an inconsequential public
expenditure is certainly not as serious as a similar effect that
can only be modestly ameliorated through the commitment of vast
public and private resources."). The omission of discussion of
mitigation measures foreclosed any public input on the issues of
whether and what CVP operations management alternatives existed
and were feasible; and whether alternate water sources existed or
if reduced flows could reduce the impact on species and other CVP
users.
Two of the factors listed in 40 C.F.R. § 1508.27, that
affect whether action is significant, are the likelihood that the
action will be highly controversial, 40 C.F.R. § 1508.27(b) (4),
and the degree to which the action may adversely affect an
endangered species, 40 C.F.R. § 1508.27(b) (9). Interior knew
that any decision it made relating to increased permanent Trinity
River flow releases and its effects on the Sacramento and Delta
ESA-listed species and secondary effects on power generators,
municipal, industrial, and agricultural water users, was going to
be controversial and significant within the meaning of 40 C.F.R.
§1502.9(b) (2), (3), (4), and (7). Prior to the issuance of the
BioOps or the FEIS, San Luis submitted comments criticizing the
DEIS on these grounds and Westlands sent a 60-day notice of
intent to sue unless formal ESA Section 7 consultation was
undertaken. Interior also had specific knowledge that the new
information was related to how Sacramento river and south of the
Delta endangered species would be affected by increased TR flows.
Defendants’ collective response in contending Interior was
not arbitrary or capricious, is to ignore the absence of
consideration of mitigation measures in the DEIS: their identity,
significance, effectiveness, effects, and controversy over their
substance and range. Any discussion was included for the first
time in the FEIS without public input and used as a post hoc
rationalization for the decision not to supplement the EIS on the
grounds that species’ and other impacts resulting from the
Preferred Alternative are not significant. Applicable NEPA
regulations require more, see 40 C.F.R. § 1502.9(c), and as to
revised portions of the DEIS, see 40 C.F.R. § 1502.9(a).
Anecdotal evidence indicates Interior chose to assume the
risk of apparent NEPA violations after the March I0, 2000, ESA
55
notice. 7 AR 3865, 3894, i0 AR 20174, (Ex. A to Robinson Dec.).
Interior as much as admits it could not cure the NEPA violations
that had occurred as of that time.
2. Effect of BioOps
Plaintiffs argue that the ROD should be set aside because:
I) Interior failed to assess the environmental impacts of the
BioOps’ mitigation measures in the ~EIS; and, 2) even if Interior
did analyze the RPMs, inclusion in the FEIS requires an SEIS.
Plaintiffs argument implicates two of the BioOps’ reasonable and
prudent measures ("RPMs"):
i) The USFWS’ RPM:
Reclamation shall minimize the effects of
reoperating the CVP resulting from the implementation
of the Preferred Alternative within the Trinity river
basin on listed fish in the Delta .... These terms
and conditions are non-discretionary. To implement
Reasonable and Prudent Measure number one Reclamation
must implement the following:
~ If Reclamation in its annual operations
planning process detects that implementation
of the Preferred Alternative will result in
an upstream (eastward) movement of X224 in
any month between February I through June 30
of 0.5 km, Reclamation shall incorporate
within its operating plan measures that can
and will be implemented to minimize or
eliminate such upstream movements.
AR 17537-38 (footnote added).
24 X2 is the water quality standard that measures salinity
by the number of kilometers upstream or eastward, of the Golden
Gate Bridge that water in the Sacramento-San Joaquin River Delta
has an electroconductivity of 2.64 m~,hos/cm. Salinity improves
by moving westward when fresh water enters the Delta.
56
2) The NMFS’ RPM:
7. In dry and critically dry water .year types,
Reclamation and USFWS shall work cooperatively with the
upper Sacramento River Temperature Task Group to
develop temperature control plans that provide for
compliance with temperature objectives in both the
Trinity and Sacramento rivers .The USFWS and Reclamation must c~m~ly with the
following terms and conditions, which implement the
reasonable and prudent measures described above.These
terms and conditions are non-discretionary.
71al ~e’prepared to make use of auxiliary bypass
outlets on Trinity Dam as needed ....
AR 17493-94. These RPMs were incorporated into the FEIS, pages
2-43-45, and the ROD, AR 17703.
a. Assessment of BioO~s in FEIS
Plaintiffs argue that the BioOps RPMs are ’~connected
actions" that had to be considered in an FEIS and are invalid
because Interior did not do so. Defendants respond that these
mitigation measures were analyzed in the FEIS and that the
actions are not connected.
i. Connected Actions
Section 1508.25 of Title 40, C.F.R. defines "connected
actions" as those that "are closely related and therefore should
be discussed in the same impact statement.’~ 40 C.F.R.
§ 1508.25(a). Actions are connected if they:
(i) Automatically trigger other actions which may
require environmental impact statements.
(ii) Cannot or will not proceed unless other actions
are taken previously or simultaneously.
(iii) Are interdependent parts of a larger action and
depend on the larger action for their justification.
Id. The federal defendants argue that the BioOps and the EIS are
not "connected actions," but are rather "a single federal action,
,,25approval of the ROD to approve fishery restoration measures.
Doc. 258 at 20:16-21:1. Section 1502.4(a) provides that
"[p]roposals or parts of proposals which are related to each
other closely enough to be, in effect, a single course of action
shall be evaluated in a single impact statement." 40 C.F.R.
§ 1502.4(a). Whether the actions are "connected actions" as
argued by NCPA, or "a single action" as argued by the federal
defendants, the result is the same: they should be evaluated in a
single EIS. The March 22, 2001 memorandum decision notes:
"There is no question that the two BioOps are ’interdependent
parts of a larger action,’depending on implementation of
the preferred alternative for their justification, because the
only reason for the X2 measure is that the ROD’s implementation~
of the FEIS’s preferred alternative reduces the water now
flowing ...." Doc. 136 at 47 n.49. The "actions" which caused
the need for the BioOps are the increase of flows in the Trinity
River to re-establish and maintain the fishery which results in
less water reaching the Sacramento Delta. The ROD and the FEIS
adopted and incorporated the BioOps’ RPMs as mitigation measures.
Whatever nomenclature is applied to the relationship between the
BioOps’ RPMs, the EIS, and the ROD, the end result is that they
are inextricably intertwined as part of the same action to
2~ It appears that this argument was made to respond to an
argument that separate EISs were required for the BiOps.
Plaintiffs no longer advance that argument.
restore Trinity River fishery, which in turn requires they be
analyzed in the same EIS.26 Interior admits it was required to
comply with NEPA and the ESA in implementing §3406(b) (23), but
argues issuing the ROD, a single federal action, was not a series
of connected, independent actions which required two separate
FEISs. The distinctions made by the parties are without
meaningful difference. Interior rejoins that the FEIS, App. D-2
at pp. 65-66, discusses impact on species and ways to minimize
incidental takings. The ROD is the end result of an integrated
series of actions, which did not require a separate EIS for each
action.
ii. Central Valley Species
The October 12, 2000, Reinitiation of Formal Consultation
and Biological Opinion authored by USFWS focused on status of
species including Delta smelt (AR 17518) and Sacramento
splittail. (AR 17520). Analysis of the implementation of the
Preferred Alternative on Delta smelt and Sacramento splittail
appears at AR 17532-34 and its cumulative effects at AR 17535-36.
The effects analysis focuses on temperature changes, entrainment
by pumps during diversions of water, moving fish habitat upstream
in times of decreased outflows, effects of toxic substances on
~ This does not mean that al! BioOps necessarily require
NEPA review. Here the minigation measures of the BioOps were
incorporated into the FEIS and the ROD and will expect major
federa! action. It is the adequacy of the FEIS and the NEPA
review for the ROD that is disputed.
59
spa~ning habitat, state or local levee maintenance, introduction
of exotic species, wave action in water channels, degrading banks
or channels, and changes in flow levels. The cumulative effects
are considered "not likely" to jeopardize continued existence of
the smelt or splittail or to result in the destruction or adverse
modification of critical habitat. The ITS recognizes Delta smelt
and Sacramento splittail may be harmed, harassed, injured, or
killed by direct entrainment, but implementation of the Preferred
Alternative flow levels on incidental take is expected to remain
at the level of the March 6, 1995, Biological Opinion. The USFWS
RPMs do not specify what CVP operational measures will be
implemented to minimize or eliminate upstream X2 movement greater
than .5km in any month between the period from February 1st
through June 30th. Reporting about take or suspected take will
be continuous.
The NMFS Biological Opinion of October 12, 2000, identifies
coho salmon, chinook salmon, and steelhead as Central Valley and
Sacramento River endangered or threatened species, and analyzes
effects of Preferred Alternative on these species at AR 17472 to
17489. Extended temperature analysis is performed using
temperature criteria and reservoir carryover storage. Increased
temperature violations are recognized at AR 17482 and use of
Trinity Dam auxiliary outlets to improve temperature conditions
by bypass operations from July to October are recommended. NFMS
concludes that with auxiliary bypasses, Trinity River temperature
criteria can be achieved 95% to 96% of the time without altering
the timing of exports to the Sacramento River. The analysis
opines that changes to X2 location under the proposed action are
not likely to adversely affect winter run chinook salmon in the
Delta, AR 17484, re~erring to Table 3-15 of the TRMFR DEIS, the
upper Sacramento River, AR 17485, and reaches the same conclusion
for Central Valley steelhead. AR 17485-86. The NMFS BioOp
summary finds no change to temperature-related mortality of
spring-run chinook salmon and steelhead, no effect in the Delta
on smelt survival, and no appreciable diminution of critical
habitat that affect fish mortality. The NMFS BioOp analyzes
cumuiative effects on the Central Valley species at AR 17489 and
concludes at AR 17490, that the Preferred Alternative is not
likely to jeopardize continued existence of any salmon species
nor is it likely to destroy or adversely modify critical habitat.
What the NMFS BioOp does not do is to analyze what effect on
power generation the bypass alternative will have or whether
there will be related CVP reoperations such as reallocation of
additional CVP water.
iii. Were the RPMs Analyzed in the EIS?
Plaintiffs argue that the impacts of the mitigation measures
specified by the BioOps and incorporated by the FEIS were not
analyzed in the EIS nor subjected to public comment. They
maintain that it was impossible to do so, because the BioOps were
not issued until shortly before the FEIS was released.
Defendants rejoin that the mitigation measures were analyzed in
the FEIS,2v albeit without public participation.
A. Auxiliary B~pass RPM
The impact of the mitigation measure to use the auxiliary
bypass outlets at Trinity Dam was discussed in the FEIS. The
"Powerplant Bypass" thematic response refers to temperature
control benefits and costs to CVP power customers of using the
auxiliary bypass outlets. FEIS at D2-79-90. Interior discussed
the relation of CVP power generation to total California powers
generation and demand, but does not break out Northern California
effects. Id. at D2-91-101. It concluded any CVP power supply
was not critical to the total California electrical demand. Id.
at D2-91-92. It is not disputed that the DEIS and public comment
phase did not analyze power impacts except from a socioeconomic
standpoint. 22 AR 13320.
As to temperature control ramifications, Interior relies on
27 Defendants also argue that the RPMs are not as
restrictive as plaintiffs imply and that the RPMs merely mandate
the process Interior must follow to mitigate harms to ESA-listed
species and not specific actions. This argument is addressed
be!ow.
62
the upper Sacramento River Temperature TaskGroup ’~to develop
future temperature controls and flows," without specific analysis
of what means will be utilized to achieve temperature objectives
or the resulting impacts. A nondiscretionary condition to ’Imake
use of auxiliary bypass outlets on Trinity Dam, as needed" is
imposed. 27 AR 17492-494. No reference is made to whether
additional CVP water will be needed for any auxiliary bypass.
The applicable ’~rule of reason." Churchill County, 276 F.3d
at 1071, asks ’~whether an EIS contains a reasonably thorough
discussion of the significant aspects of the probable
environmental consequences." Id. (quoting Trout Unlimited v.
Morton, 509 F.2d 1276, 1283 (9th Cir. 1974)). There was no
public input in the discussion in the FEIS related to the impact
of using the auxiliary bypass outlets. The FEIS did not need to
specifically name the BioOps as plaintiffs contend, if it
discussed the subject matter of the impact of the BioOps RPMs
with reasonable thoroughness, however, the FEIS does not perform
such an analysis.
B. X2 RPM
As to the X2 RPM, the parties’ arguments highlight different
understandings of what has to be analyzed. As defendants argue,
the FEIS discussed the impact of X2 movement on Delta ESA-listed
species. The Preferred Alternative does not mandate moving the
measurement location for X2, nor does it change the X2 standard.
It is not possible to know the effect that X2 RPM compliance
will have, because defendants did not identify or analyze the
impact of any mitigation measures which actually will be used to
address X2 effects. Rather, defendants respond, based on USF~S
and FMS input, that effects of X2 compliance are insignificant,
and if X2 measures are needed, ~ESA reconsultation will be
reinitiated." There is no discussion of where additional water
will come from, or what quantity will be needed to maintain the
X2 standard within or close to 0.5km of its required location.28
Implementation of the Preferred Alternative admittedly will
28 An impact can be positive or negative and direct or
indirect. 40 C.F.R. § 1508.8 (’~Effects includes eco!ogical (such
as the effects on natural resources and on the components,
structures, and functioning of affected ecosystems), aesthetic,
historic, cultural, economic, social, or health, whether direct,
indirect, or cumulative. Effects may also include those
resulting from actions which may have both beneficial and
detrimenta! effects, even if on balance the agency believes that
the effect wil! be beneficial.").
64
affect the Sacramento River and Delta ESA-listed species to some
degree. The FEIS incorporates future unspecified mitigation
measures to lessen these effects. These mitigation measures in
turn cause effects; impacts, direct or indirect, and their
significance must be analyzed. 40 C.F.R. §§ 1502.16(a)-(b).
The RPMs only describe procedures not what specific actions
Interior will actually take, or what effects such actions will
have. Defendants argue that the X2 RPM ’~most emphatically did
not require that Reclamation take any and all measures to ensure
that the X2 location did not change. Instead, FWS instructed
Reclamation as part of the ’operations planning process,’ to
’incorporate within its operating plan measures’ that ’minimize or
eliminate’ upstream movement.’" Doc. 258 at 16:14-17 (Fed. Def.’s
Opp’n). From this, defendants conclude, because (i) there is no
qualitative difference between the existing Water Quality Control
Plan ("WQCP") x2 standard and the X2 RPM and, (2) the X2 RPM only
requires that Reclamation consult if there is a change greater
than 0.5 km, there are no significant impacts to analyze.
Whether this failure to assess the impact of the X2 RPM
violates NEPA is determined under the ~rule of reason" standard;
Churchill County, 276 F.3d at 1071, which asks, "whether an EIS
contains a reasonably thorough discussion of the significant
aspects of the probable environmental consequences." id.
(quoting Trout Unlimited v. Morton, 509 F.2d 1276, 1283 (gth Cir.
1974)). The thoroughness of an EIS is decided by "a pragmatic
judgment whether the EIS’s form, content and preparation foster
65
both informed decision-making and informed public participation."
Id. (quoting Block, 690 F.2d at 761).
Plaintiffs maintain that X2 RPMs result in a de facto change
in the current X2 standard under the Water Quality Control Plan
which itself makes such RPMs significant. Defendants
rejoin that X2 RPMs do not change the current X2 standard.
experts say otherwise. Michael G. Thabault,29 declares:
Section 7 of the endangered Species At of 1973 (as
amended) (Act) requires the Service to evaluate the
effects of the actions of Federal agencies on species
listed pursuant to Section 4. As part of this
evaluation the Service must consider the direct,
indirect, interrelated, and interdependent effects of
the action, as well as including cumulative effects to
Their
29 Consideration of extra-record materials is al!owed in
four circumstances: I) if the material is necessary to determine
whether an agency has considered all relevant factors and has
explained its decision; 2) when the agency relied on the extra-
record materials; 3) when supplementation is necessary to explain
complex or technical subject matter; and, 4) when plaintiffs make
a showing of bad faith. Northcoast Envt!. Ctr. v. Glickman, 136
F.3d 660, 665 (9th Cir. 1998). The first exception applies here.
listed species. This analysis must be considered in
the context of the environmental baseline for the
species. The environmental baseline is defined at [50
CFR §402.02] as:
"the past and present impacts of all Federal,
State, or private actions and other human
activities in an action area, the anticipated
impacts of all proposed Federal projects in
an action area that have already undergone
formal or early section 7 consultation, and
the impact of State or private actions that
are contemporaneous with the consultation in
process."
It is essentially the status of the health of the
species at a snapshot in time. The current operation
of the CVP and SWP have resulted in an environmental
baseline condition that exceeds (i.e., is better for
the species) the standards established in the WQCP. .
¯ The Service evaluated the effects of the Preferred
Alternative on listed species and how the action may
affect Reclamation’s ability to maintain the
environmental baseline. The Service concluded that
there would be affects to the location of X2 which may
effect distribution, spawning, rearing, and foraging
abilities of the delta smelt. Also, reduction in flows
may, at times, effect the spawning and rearing
opportunities for the Sacramento splittail. The
Service subsequently developed a Term and Condition and
associated Reasonable and Prudent Measure (RPM) that
could minimize the effects: and in some instances
eliminate the effects of the action, within the
confines of Reclamation’s CVP operations. (Emphasis
added.)
Doc. 75 at 5:6-28. According to Mr. Thabault, the baseline
against which the X2 RPM is measured exceeds the minimum X2
requirement under the WQCP. The X2 RPM provides:
Reclamation in its annual operations planning process detects
that implementation of the Preferred Alternative will result in
an upstream (eastward) movement of X2 in any month between
February 1 through June 30 of 0.5 km, Reclamation shall
incorporate within its operating plan measures that can and will
be implemented to minimize or eliminate such upstream movements."
67
AR 17493-94 (emphasis added). Implementation of this RPM is
nondiscretionary. Id.
Based on its plain wording, the X2 RPM requires Interior to
incorporate within its CVP operating plan measures that will
minimize or eliminate eastward movement of X2 exceeding 0.5km.
This requires more than consultation and goes beyond prescribing
the process to be followed; it requires affirmative federal
action. Mr. Thabault states that the X2 ~’term and condition does
not modify the already stated commitment of the Bureau of
Reclamation to avoid and minimize the effects to species
protected pursuant to the Act by minimizing the effect of
incidental take (water) as measured by X2. The term and
condition merely sets the threshold for when those actions
developed and committed to by the Bureau of Reclamation should be
implemented." That is precisely plaintiffs’ point; the X2 RPM
creates an absolute standard defining when Reclamation must act.
Mr. Thabault’s declaration recognizes that the present location
of the X2 from which~movement is measured under the RPM already
exceeds the WQCB standard.
Chester Bowling, Operations Manager of the Central Valley
Operations Office for the Bureau, declares that Reclamation
determined that although implementation of the Preferred
Alternative would not violate the WQCP; simulations show that in
some years X2 will move upstream in excess of 0.5km. Doc. 290 at
~8. Other than ESA reconsultation no specific mitigation action
is identified.
Plaintiffs argue that this new standard is significant,
defendants argue that it is not. Mr. Bowling and plaintiffs’
expert, James Snow, agree that there are months in some years in
which computer simulations indicate that X2 will move upstream in
excess of 0.5km invoking the X2 RPM’s requirement for action.
Doc. 281 at ~i0; Doc. 290 at ~8. Specifically, the X2 will move
eastward more than 0.5km in 20 percent of all Junes, and in four
years, X2 will move 0.5km in more than one month. Doc. 281 at
10.
Mr. Snow calculates the cost in water to comply with the RPM
in the four years where the X2 RPM standard is exceeded in more
than one month, at 410,000 AF; 370,000 AF; 270,000 AF and 260,000
AF. Doc. 281. In these calculations, Mr. Snow assumed that the
X2 movement was to be eliminated. However, the RPM does not
require elimination, it calls for minimization o__r elimination.
~Thile it is possible the effect of the X2 RPM may be as great as
Mr. Snow opines, it is also possible that it would be
significantly less. Mr. Bowling expresses his understanding that
Reclamation must, in the event X2 moves upstream in excess of
0.5~m, coordinate with the USFWS to determine what, if any,
action is required. Doc. 290 at ~7.
If changes in operations, such as additional upstream
releases or reduced pumping, are necessary, Reclamation will
determine if the changes are ~’minor." Id. If they are more than
minor, Reclamation will request reinitiation of formal
consultation with the USFWS. Mr. Bowling notes that it ’~is
possible that the X2 RPM could require major changes in CVP
operations." Id. Plaintiffs rely on the USFWS conclusion, that
by using an Interagency team to evaluate and recommend changes in
operations, "the service has concluded there will not be an
adverse modification or destruction of habitat for Delta smelt."
USFWS BioOp, p. 30 (80-12-00). The defendants in substance say
"trust us." Yet Mr. Bowling declares, based on his experience,
changes necessitated by the RPM X2 measures could include major
changes in the dedication and management of (b) (2) water, in
actions implemented with CALFED EWA, and that could impact
available CVP operational flexibility. Id. at ~8. Whether a
major change in CVP operations will further directly impact
south-of-delta water users through increased upstream releases
and reduced delta pumping, or will impact other environmental
programs or species through the use of the limited (b) (2) water
account, remains undetermined. However, it is certain that
potential major changes in CVP operations will occur in 20
percent of all Junes.
Water in the CVP is a limited resource, the right to which
is constantly disputed. There are sixteen pending lawsuits in
this court, alone, in which numerous CVP stakeholders dispute
their respective rights to annual CVP water allocations.
Whenever CVP water is diverted to a different use, an impact is
experienced throughout the system. The effects on the Preferred
Alternative from the X2 RPM pose potential unquantified but
significant environmental and other consequences. The conflict
between USFWS’ ~insignificance" opinion and the Bureau’s views of
the FEIS’s X2 RPM consequences expressed by Mr. Bowling, are not
addressed or resolved by defendants, making impossible a finding
that further analysis of X2 RPMs was not required. It was
arbitrary and capricious for the EIS and FEIS not to address
impacts of X2 RPMs and CVP re-operation.
b. Supplemental EIS
Plaintiffs argue that the ROD should be set aside because
Interior failed to prepare an SEIS assessing the BioOps’
mitigation measure impacts, which were incorporated into the ROD
and FEIS. An agency decision to forego completing an SEIS will
not be set aside unless it is arbitrary and capricious. Friends
of the Clearwater, 222 F.3d at 556. The applicable standard is
whether the decision not to complete an SEIS was ~based on a
consideration of the relevant factors and whether there has been
a clear error of judgment." Id. "Review under this standard is
to be searching and careful, but remains narrow, and a court is
not to substitute its judgment for that of the agency." Id.
(quoting Mt. Graham Red Squirrel, 986 F.2d at 1571). ~This is
especially appropriate where the challenged decision
implicates substantial agency expertise." Id.
’INormally, an agency rule would be arbitrary and capricious
if the agency has relied on factors which Congress has not
intended it to consider, entirely failed to consider an important
aspect of the problem, offered an explanation for its decision
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." Motor Vehicle Mfrs. Ass’n,
463 U.S. at 43; O’Keeffe’s, 92 F.3d at 942. ’~[T]he agency must
examine the relevant data and articulate a satisfactory
explanation for its action including a rational connection
between the facts found and the choice made." Motor Vehicle
Mfrs., 463 U.S. at 43; Dioxin/Organoch!orine Ctr., 57 F.3d at
1525.
Here, Interior did not articulate a satisfactory explanation
for its decision not to conduct an SEIS. After the October 12,
2000, BioOp Interior did not have time to do so. It simply
rationalized that the new information included in the FEIS was
"mainly for clarification purposes and does not represent
significant new information requiring recirculation." FEIS D2-
71. FEIS D2-72. Interior does not discuss why it believes that
the ’~new information" is not significant. The expected effects
of the X2 RPM and auxiliary bypass at the Trinity Dam RPM were
not considered and the reason for not doing so is implausible,
which makes the action arbitrary and capricious. These RPMs must
be considered in an SEIS which includes public participation.
Section 1502.9(c) provides that an agency shall prepare a
supplement to a draft or final EIS if: i) there are substantial
changes in the proposed action that are relevant to the
environmental concerns; or 2) there are environmentally relevant
significant new circumstances or information that bear on the
proposed action or its impacts. 40 C.F.R. § 1502.9(c) (i).
"[W]hether to prepare a supplemental EIS is similar to the
decision whether to prepare an EIS in the first instance: If
there remains ’major Federal actio[n] to occur, and if the new
information is sufficient to show that the remaining .action will
’affec[t] the quality of the human environment’ in a significant
manner or to a significant extent not already considered, a
supplemental EIS must be prepared." Marsh, 490 U.S. at 374.
’~[T]he key to whether a Supplemental Environmental Impact
Statement is necessary is whether the proposed [work] will
have a significant impact on the environment in a manner not
previously evaluated and considered." South Trenton, 176 F.3d at
663.
The Bureau recognizes the X2 RPM, as described by the FEIS
and the ROD, is a significant change. If the federal defendants
had attempted to change the X2 standard as a separate action, an
EIS would have been required. X2 has major environmental
consequences, which will require~CVP reoperation if its limits
are exceeded under the RPM. Interior cannot circumvent the
requirement that an EIS recognize and analyze a major change by
inserting it into an FEIS without analysis of, or public input
on, its impacts. An SEIS must be completed analyzing all effects
of the X2 RPM. In at least twenty percent (20%) of all water
years, the X2 standard wil! be violated, necessitating CVP
reoperation. What will be the RPMs? Where will the water come
from to address the RPMs to mitigate the condition? How much CVP
water will be required and how will such water be managed? What
will be the likely impacts of required CVP reoperation on south-
of-Delta species and what will other impacts be on the human
environment and from reallocation of CVP water among other users?
C.Auxiliary Outlet Bypasses (Temperature and Power
Ramifications)
The impacts of the auxiliary outlet bypass RPM to assist
temperature control objectives were discussed in the FEIS,
Appendix D 29, 79-91, in response to NCPA’s objection that the
original Appendix F (addressing power impacts) failed to address
power impacts of ’~auxiliary outlet releases at Trinity Dam." The
question is whether the information included in the FEIS
represented a ’~substantial change" or "significant new
circumstances or information" that ’~provides a seriously
different picture of the environmental landscape." City of
Olmsted Falls, OH v. F.A.P., 292 F.3d 261, 274 (D.C. Cir. 2002);
"[A]n agency need not supplement an EIS every time new
information comes to light after the EIS is finalized. To
require otherwise would render agency decisionmaking intractable,
always awaiting updated information only to find the new
information outdated by the time a decision is made." Marsh v.
Oregon Natural Resources Counci!, 490 U.S. 360, 373 (1989).
Plaintiffs argue that the impact of the auxiliary outlet bypass
RPM was not sufficiently analyzed because the effect of the loss
of energy on reliability of the California grid was not
discussed. Plaintiffs are mistaken in part. The FEIS did cover
and analyze "CVP Generation in Relation to Total California
Generation and Demand." Appendix D2, 91-101. It did not do so
specifically for the effect of Trinity Dam bypasses on Northern
California CVP power supply and reliability.
Interior addressed the related issue of water temperature
impacts from bypass operations to protect Trinity and Sacramento
River fisheries. NCPA’s concern about bypassing the Trinity
powerplant is specifically mentioned in Appendix D2, p. 81. An
SEIS is required for the Trinity Dam bypass RPM because Interior
did not analyze or address the measure and its impacts on
Northern California poewr supply and reliability in the DEIS.
Although the FEIS mentions the issue, it concludes without
analysis, such operations will not cumulatively have adverse
impacts, the unsupported conclusion is a post hoc
rationalization. A hard look was required but not taken.
3.Analysis of Preferred Alternative Effect on Power
S_ystemReliability
The DEIS was published in October 1999 and the public
comment period extended through January 20, 2000. All plaintiffs
submitted comments. No public comments were permitted by
Interior in the NEPA process after January 20, 2000. On June 28,
2000, the California Independent System Operator ("ISO") declared
a Stage One Electrical Emergency3° for the third consecutive day.
30 A Stage One Electrical Emergency occurs when operating
reserves fall below 7 percent. A Stage Two Electrical Emergency
occurs when operating reserves fall be!ow 5 percent. A Stage
75
On August 3, 2000, the ISO declared a Stage Two Electrical
Emergency for the fourth consecutive day, as part of a California
energy crisis.
On August 23, 2000, the U.S. Department of Energy’s Western
Area Power Administration (~APA") wrote to Interior providing
notice that Interior’s impact analysis for the Trinity River EIS
and the CVPIA Programmatic EIS ("PEIS") only "focused on the
potential economic impacts to CVP power." AR 3923. It went on to
state that "[t]hese impacts were studied with the implicit
assumption that long-term power system reliability would not be a
concern." Id. WAPA communicated its ’Ibelief it was prudent to
re-examine the work conducted in order to assess potential
reliability impacts." Id. WAPA’s letter evaluated reliability
impacts: from June to October of an average year, on-peak energy
reductions would range from 27,000 MWh to 47,000 MWh compared to
the No-Action alternative; in a dry year the reduction ranged
from 2,000 MWh in October to 79,000 MWh in July. Id. at 3923-24.
WAPA concluded: "During the critical summer months, the data
indicates that as much as 124 MW of capacity supported with
Three Electrical Emergency occurs when operating reserves fall
below 1.5 percent. Rolling blackouts can occur during Stage
Three Electrical Emergencies.
76
energy may be lost in September (of an average year) and up to
324 MW may be lost in July (of a dry year), as a result of
reoperating the CVP to meet the requirements associated with both
the PEIS and the Trinity River EIS/EIR." Id. at 3924. This power
impact was characterized as ’~striking" by the Department of
Energy. Id. at 3924.
On October 20, 2000 Interior published the FEIS. Five days
later Interior rescinded the FEIS Notice of Availability and
republished the FEIS November 17, 2000. On December 7, 2000 the
California ISO declared a Stage Three Electrical Emergency. On
December I0 and 11, 2000 the ISO declared Stage Two Electrical
Emergencies. On December 14, 2000, the Department of Energy
(~’DOE") declared an energy emergency in California and ordered
electrical generation facilities to generate and transmit
electric energy when and in such amounts as requested by the
!SO.31 On December 19, 2000 the ISO declared a Stage Two
Electrical Emergency and invoked its powers under the December
14, 2000 DOI order. On the same day, the Secretary of the
Interior signed the ROD implementing the Preferred Alternative.
On January 17, 2001, the ISO declared a Stage Three
Electrical Emergency followed by rolling blackouts January 17,
~ Janice Schneider, the former Counselor to the Deputy
Secretary of the Interior at the U.S. Department of the interior,
declares that she prepared a briefing paper, dated December 17,
2000, for the Secretary of the interior discussing, inter alia,
ongoing developments in the power markets in California. 27 AR
17676-89, Schneider Dec., Ex. L to filed Doc. 73. This cannot
substitute for NEPA review.
77
18, and March 19 and 20, 2001. The ISO declared a Stage One
Electrical Emergency July 9, 2002, and a State Two Electrical
Emergency on July 10, 2002.
Plaintiffs argue that the ROD should be set aside because
the FEIS does not realistically assess the impacts of the
Preferred Alternative on power system reliability, requiring an
SEIS. Defendants assert the FEIS and DEIS did analyze power
system reliability and that no SEIS is required.
a. Discussion of Power Impacts in FEIS
The FEIS contains a section in its Power Analysis Thematic
Response entitled "CVP Generation in Relation to Total California
Generation and Demand." Appendix D2, 91-101. In this section,
the FEIS opines that TRD-generated power produces capacity to
supply approximately 1 percent of current California demand and
will account for less than i percent of the projected 2010
demand. D2, 91-2. It also states that although demand growth
has outstripped supply growth, completion of additional
powerplants is anticipated to help avoid electrica! emergency
alerts in the future. The power generators argue "detailed
assessment" of the impact of CVP power supplies on the greater
California region was not conducted for the DEIS/EIR, other than
presented in the socioeconomics section. 22 AR 13320, 13888.
The ROD states that "operating criteria will be developed" to
allow WAPA to respond to emergencies per obligations to the North
American Electric Reliability Council and Presidential Mem.o, of
78
August 3, 2000, providing federal agencies work with California
to develop backup power generation for power shortage
emergencies. The thematic response concluded that: "[i]t is
anticipated that as demand for power increases, additional power
supplies will be built to meet the increase in total California
demand. As this occurs, the CVP’s current total contribution of
meeting 4 or less percent of total California electrical demand
will constitute a decreasing proportion of the state’s overall
power generation supply." FEIS, D2-92.
Other than this discussion, the only information that
relates to the California energy crisis is the analysis included
in both the DEIS and FEIS about the extent of decrease in power
production under the various options to the State as a whole.
This discussion was not related to system reliability, but to
socioeconomics. The ROD results in decreased value of CVP power
production of $5,564,000 annually under the Preferred
Alternative, a 3% decrease of $9,024,000 annually. ROD at p. 22.
Appendix F to the DEIS addresses power impacts as does Table 3-
49 to the FEIS. See also TRFEFR, Appendix A, p.A.-12, Table 4,
p.A.-17, which review the 1981 Secretarial Decision. The FEIS
discusses the California power crisis; the issue is whether
Interior took a "hard look.’’
EIS review is under the "rule of reason" standard; Churchill
County, 276 F.3d at 1071: "Under this standard, we ask ’whether an
EIS contains a reasonably thorough discussion of the significant
aspects of the probable environmenta! consequences." Id. (quoting
Trout Unlimited, 509 F.2d at 1283). To determine whether an EIS
is reasonably thorough, courts must make "a pragmatic judgment
whether the EIS’s form, content and preparation foster both
informed decision-making and informed public participation." Id.
(quoting Block, 690 F.2d at 761).
When deciding NEPA claims, a court may not impose its own
notion of which procedures are best. Id. at 1072. Instead, a
court’s role is to insure the agency has taken ’~a hard look.’~ Id.
"[NEPA] is not meant to ’mandate particular results’ but to
provide a process to ensure that federal agencies take a ’hard
look’ at the environmental consequences of proposed acts. When an
agency makes a decision subject to NEPA’s procedural
requirements, ’the only role for a court is to insure that the
agency has considered the environmental consequences; it cannot
interject itself within the area of discretion of the
executive ....’" Tillamook County, 288 F.3d at 1143-44 (quoting
Strycker’s Bay Neighborhood Council, 444 U.S. at 227). Courts
must strictly interpret the procedural requirements of NEPA "’to
the fullest extent possible’ consistent with the policies embodied
in NEPA." Churchill, 276 F.3d at 1072. Pro forma compliance is
not enough. Id.
Interior was informed by WAPA that Interior’s previous
analysis of the power impacts was based upon an assumption that
was no longer valid. Further analysis was recommended. WAPA
provides its own analysis in its letter that discusses the
impacts of the Trinity River EIS and the FEIS. Interior
responded to the WAPA letter, with a ’~memorandum to file" to
document its position on the California power crisis: ~in 1999,
all of the power generated by the Trinity River Division (TRD)
relative to the total of recent power consumption in California
shows that the TRD accounted for less.than 0.70% than [sic] the
total consumption and the change in power generated would result
in an average decrease of 0.041% in an average water year, before
accounting for new generating capacity." AR 17676. It noted that
although implementation of the Preferred Alternative would result
in only insignificant effects on power generation within
California, the ROD must include a direction to Interior and WAPA
to develop coordination measures to allow for increased
generation of power during periods of critical shortfalls in
California. AR 17677. Interior addressed WAPA’s concerns,
determined that the impact of implementing the Preferred
Alternative on the California energy crisis was minimal, but
provided the ROD include a condition to develop measures for
increased power generation during critical periods of energy
shortfall. None of this additiona! "consideration" was subject to
public participation.
Interior took a look at the issue. Title 40 C.F.R. §1502.14
requires the look be reasonably thorough. Interior cannot be
required to adopt measures other stakeholders believe are
prudent, except if reason and science make the agency’s choice
arbitrary, capricious, or unlawful. Interior does not provide an
analysis of the net effect of power impacts on Northern
California in implementing the Prepared Alternative. Its process
thwarted public participation and informed decision-making on
power capacity and reliability issues. Greenpeace Action v.
Franklin, 14 F.3d 1324, 1336 (9th Cir. 1992). Although Appendix
D responds to many issues raised by the power generator
plaintiffs, ultimately, Interior’s finding that the Preferred
Alternative’s effect on California power generation from the CVP
will be minimal and that its response to power emergency
situations will comply with the Presidential Memo of 8/3/00,
cannot be tested based on the AR. A ~hard look" at relevant power
supply and reliability consequences requires an SEIS.
The power generator plaintiffs also argue that the DEIS
analysis of the Preferred Alternative did not focus on its impact
on power system reliability. Not surprisingly, the electricity
power grid in California is a function of power supply and
demand. The government submits a declaration from Mr. Marcus,
responding to Mr. Dame’s declaration on behalf of the power
generator plaintiffs. Even if both declarations are considered
because they aid in understanding the complex and technical
issues surrounding the way in which hydroelectric poewr
generating capacity of the CVP is affected by the Preferred
Alternative, both as it relates to state-wide power demand and
Northern California power demand, such information needed to be
part of the NEPA review. Defendants point to Appendix F and
attachment FI, which analyze the impact of the Trinity River
alternatives on the balance between power supply and demand, as
evidence the capacity issue was considered. The analysis
includes changes to CVP supply (project capacity) and CVP demand
(project use) and considers the effect of dry-year monthly
capacity changes. The DEIS observes that peak power loads occur
in summer months, which are most sensitive to reduced capacity.
Additional months, January - March and December are also periods
of increased power use. The DEIS concludes the Preferred
Alternative would increase dry year capacity on the average 6.5
Mw over the No Action Alternative. The most significant month,
December, shows a reduction of capacity by 85 Mw, in excess of
the 50M~ level of significant change in capacity, which is
provided for in the FEIS and ROD by an emergency provision.
Contrary to Plaintiffs’ assertion, Interior did consider evolving
circumstances as pertinent to power generation and reliability,
revised the ROD accordingly, but acknowledged regional and local
effects require further analysis. 27 AR 17676-89, 17691-92; May
23, 2002, California energy Commission letter.
Extra-record references are made to a briefing memo prepared
for the Secretary of the Interior as of December, 2000, and
California Energy Commission Scoping Comments, which identify
2592 Mw of new power generating capacity in operation (not
dependent upon hydro power) and another 13,867 Mw of power
generation capacity under construction, 3,213 Mw of which are
expected to be operational by the end of 2002. An additional
9,980 Mw of power generation capacity are in licensing. Marcus
Dec. ~ 21, California Energy Commission Comments pp. 6-7. The
experts do not agree. Their differing opinions reflect contrary
scientific viewpoints that do not require a choice. Interior’s
conclusion that negative impacts on power generation capacity
will be offset by resource development may be valid, however, it
was not subjected to public scrutiny.
Friends of the Clearwater v. Dombeck, 222 F.3d 552, 558 (9th
Cir. 2000), involved a 10 year old, out-of-date EIS. Here the
lawsuit was initiated upon completion of the FEIS and before the
ROD was signed. Interior should have performed an SEIS to
address the effect on Northern California power supply and
reliability resulting from implementation of the Preferred
Alternative in view of major changes associated with the
California energy crisis.
b. Supplemental EIS re: Ener~ Impacts
An agency decision to forego completing an SEIS will not be
set aside unless it is arbitrary and capricious. Friends of the
Clearwater, 222 F.3d at 556. The court must consider whether the
decision not to complete an SEIS was ~based on a consideration of
the relevant factor~ and whether there has been a clear error of
judgment." Id. ~Review under this standard is to be searching
and careful, but remains narrow, and a court is not to substitute
its judgment for that of the agency." Id. (quoting Mt. Graham Red
Squirrel, 986 F.2d at 1571). ’~This is especially appropriate
where the challenged decision implicates substantial agency
expertise." Id.
The FEIS discusses the impact of implementing the Preferred
Alternative on the developing California energy crisis. The
agency determined that "in 1999, all of the power generated by the
Trinity River Division (TRD) relative to the total of recent
power consumption in California accounted for less than 0.70% of
the total consumption and the change in power generated would
result in an average decrease of 0.041% in an average water year,
before accounting for new generating capacity. AR 17676.
Interior decided that despite the seriousness of the 2001 energy
crisis, it was not a significant new circumstance because any
reduction in energy production which would be caused by
implementation of the Preferred Alternative would be so smal!.
Interior’s determination that the 2001 California energy crisis
was not a sufficiently significant factor as to require a
supplement to the DEIS, can only be overturned if it was a clear
error in judgment. A court may not substitute judicial judgment
for that of the agency.
The information in the FEIS is not sufficient to permit
informed analysis of the ultimate effects of the California
energy crisis. All the information bearing on the analysis is
extra-record and has been submitted in the form of conflicting
declarations in the lawsuit. The CVP makes an allegedly "minor"
contribution to the annual California energy supply and
implementing the Preferred Alternative is alleged to have less
than a .05% effect on the California power supply. Interior’s
view that ongoing new development of California power generation
capacity will ameliorate reduction in CVP power generation
capacity caused by implementing the ROD is not challenged.
Defendants’ extra-record arguments about evolving knowledge of
alleged market fraud and manipulation by power suppliers in 2000-
2001 were not known or available to Interior in December 2000 and
cannot be considered.
Even though supplemental analysis would likely favor
Interior’s position that CVP power supply impacts are not
significant, for the additional reason that the California power
shortages were, in some measure, caused by fraud and market
manipulation, the Administrative Record has not been
supplemented. Even if the parties’ declarations are considered
for technical assistance, they are not dispositive. "The complete
record" does not assuage the concerns about significant change
wrought by the energy crisis or the need for an SEIS on the power
effects issue.
Plaintiffs’ motion for summary judgment on the issue of the
federal defendants’ failure to comply with NEPA based on analysis
of the Preferred Alternative’s effect on power system supply and
reliability is GRANTED. The federal defendants’ motion on the
same issue is DENIED.
4.Timing of EIS and the Trini,.~~ River Flow Evaluation
Final Report
Plaintiffs argue that an FEIS should have been completed on
the TRFES before the final report on the study was published.
Resolution of this issues raises two questions: 1) was the
Trinity River Flow Evaluation Final Report ("TRFEFR") a major
federal action; and, 2) if so, was the FEIS prepared in a timely
manner.
a. Major Federal Action
NEPA requires that an EIS be prepared for all "major federal
actions." 42 U.S.C. § 4332(2) (C). "Major Federal action includes
actions with effects that may be major and which are potentially
subject to Federal control and responsibility." 40 C.F.R. §
1508.18 (emphasis in original). It includes, inter alia,
~[a]doption of formal plans, such as official documents prepared
or approved by federal agencies which guide or prescribe
alternative uses of federal resources, upon which future agency
actions will be based." Id. at 1508.18(b) (2).
The first seven chapters of the TRFEFR include the
introduction, background, historical perspective, study
approaches, results, and restoration strategies. Chapter Eight
is entitled ’~recommendations." The executive summary of the
TRFEFR describes the purposes of each chapter. Chapter 8
contains recommendations ’Ito utilize an Adaptive Environmental
Assessment and Management (AEAM) approach to guide future
management and ensure the restoration and maintenance of the
fishery resources of the Trinity River’~ and to use "instream flow,
channel-rehabilitation, and fine and course sediment"
~ecommendations in order to implement Chapter Seven’s ’~conclusion
that a modified flow regime, a reconfigured channel, and strategy
for sediment management are necessary to have a functioning
alluvial river that will provide the diverse habitats
required to restore and maintain the fishery resources of the
Trinity River." TRFEFR at 227, 230. The summary of the
recommendations chapter also describes the integration of these
three primary actions: ~Rehabilitation of the mainstem Trinity
River and restoration and maintenance of its fishery resources
requires (I) increased annual instream volumes and variable
reservoir release schedules, (2) fine and coarse sediment
management, and (3) mainstem channel rehabilitation. Id. at 233.
The first of these recommendations are the increased flows
adopted in the DEIS, FEIS, and ROD.
CVPIA Section 3406(b) (23) required Interior to complete the
TRFES and make recommendations to Congress and the Hoopa Tribe
for permanent instream fishery flows by fall 1996. The
government cannot plausibly argue that the TRFEFR, which compiled
all the data regarding the Trinity River restoration and
recommended a modified flow regime that reallocates up to over
815,000 AF of CVP water to the Trinity River, does not constitute
a recommendation on a proposal for major federal action.Doc.
136 at 42:21-43:1. Section 3406(b) (23) directs that the
Secretary make recommendations for increased flows. After
forwarding the recommendations to Congress, the Secretary had two
options: i) to concur; or, 2) not to concur. If the Secretary
and the Hoopa Valley Tribe (with whom the Secretary must consult
on the TRFES) concurred, the recommendations were to be
implemented. The recommendations of the TRFEFR were designed to
guide how Interior uses federal resources; and future agency
action was likely to be based upon these recommendations.~2 The
TRFEFR constitutes the ’~[a]doption of [a] formal plan[], such as
[an] official document[] prepared or approved by [a] federal
agenc[y] which guide[s] or prescribe[s] alternative uses of
federal resources, upon which future agency actions will be
based." See 40 C.F.R. § 1508.18(b) (2). This is major federal
action; Interior recognized its responsibility to prepare an EIS
and did so.
b. Timeliness of EIS Preparation
CEQA regulations address the time for EIS preparation.
agency shall commence preparation of an environmental impact
statement as close as possible to the time the agency is
developing or is presented with a proposal (§ 1508.23) so that
preparation can be completed in time for .the final statement to
be included in any recommendation or report on the proposal. The
32 The federal defendants cite Churchill, 276, F.3d at 1075
for the proposition that a "court has no authority to
determine a point during the germination process of a potentia!
proposal at which an impact statement should be prepared." Id.
(quoting Kleppe v. Sierra Club, 427 U.S. 390, 406 (1976)).
However, they omit the next sen<ence: "A fina! EIS is required
only at the time the agency ’makes a recommendation or report on
a proposa! for federal action." Id. The TRFEFR was a
recommendation and report for federa! action.
89
statement shall be prepared early enough-so that it can serve
practically as an important contribution to the decisionmaking
process and will not be used to rationalize or justify decisions
already made." 40 C.F.R. § 1502.5 (emphasis added). ~IPreparation
of an environmental impact statement on a proposal should be
timed (§ 1502.5) so that the final statement may be completed in
time for the statement to be included in any recommendation or
report on the proposal." 40 C.F.R. § 1508.23.Here, the draft
TRFEFR (a report on a proposal) was released in January 1998 and
the final TRFEFR was published in June 1999. Four months later,
in October 1999, the DEIS was released. The public comment
period on the DEIS extended to January 20, 2000. On March 29,
2000, Interior forwarded the TRFEFR to Congress pursuant to CVPIA
§ 3406(b) (23). Eight months later, on November 17, 2000 the FEIS
was published. On December 18, 2000, the Hoopa Valley Tribe
concurred in the TRFEFR’s recommendations and on December 19,
2000, the Secretary and the Hoopa Valley Tribe signed the ROD.
Section 3406(b) (23)’s requirements made the flow
recommendations in the TRFEFR a critical decisionmaking point.
Once the Secretary made recommendations in the TRFEFR, the Tribe
could concur in them (and they would be implemented), or not
concur, which would leave flows at the statutory minimum level
(340,000 AF) pending further legislative or judicial action. The
point in time at which the Secretary had the broadest discretion
to determine flow levels was the point at which the TRFEFR
recommendations were made. That was the point in time at which
the FEIS should have been completed so that the EIS could have
had an effect on the decisionmaking.~3 The government argues an
33 The federal defendants argue that a separate EIS was not
required for the TRFEFR because it and the ROD were connected
actions. 40 C.F.R. § 1508.25(a) (2) ("Connected actions, which
means that they are closely related and therefore should be
discussed in the same impact statement .... "). There is no
question they are related; the only question is when the EIS
should have been prepared. Section 1502.5 states, the FEIS must
be completed in time to "serve practically as an important
contribution to the decision-making process .... " The primary
decisionmaking here occurred at the time the TRFEFR made its flow
and related recommendations, not when the Secretary concurred
with the ROD. The ROD was signed one day after the tribe
concurred in the TRFEFR.
FEIS was not required before the TRFEFRwas submitted to Congress
because it was a programmatic and project-specific EIS. FEIS pp.
1-3.
~NEPA procedures must insure that the environmental
information is available to public officials and citizens before
decisions are made and before actions are taken." 40 C.F.R. §
1500.1(b); Northwest Res. Info. Ctr., 56 F.3d at 1064 ("The
purposes of an EIS are to provide decisionmakers with
sufficiently detailed information to aid in determining whether
to proceed with the action in light of its environmental
consequences and to provide the public with information and an
opportunity to participate in the information gathering
process."). The FEIS was not prepared before the Final Flow
Recommendations were submitted to Congress. All components of
the Flow Study and Restoration Plan were incorporated into the
ROD and the FEIS. When the TRFEFR was submitted in March 2000,
Congress had the DEIS, but not the FEIS. It was not required
that a separate EIS be completed at every stage of the project.
At least two of Plaintiffs’ major concerns, power impacts and
Integrated Management Alternative were not fully considered in
the DEIS provided to Congress. A related contention, that
Interior improperly narrowed the range of alternatives considered
to meet the initial 1996 statutory deadline is treated below. 2
AR 632, 659.
5.EIS Alternatives
Plaintiffs complain the EIS violated NEPA because it did not
examine a reasonable range of alternatives and that the ROD must
therefore be set aside. This argument has four premises: I) the
various laws applicable to the management of the CVPIA and the
restoration of the Trinity River require that only enough water
be devoted to accomplish Trinity River fishery restoration as
necessary and no more; 2) based on this interpretation of the
governing law, Interior failed to consider a reasonable range of
alternatives; 3) an ’~Integrated Habitat and Fishery Management"
alternative is an important reasonable alternative, used on other
rivers, that must be considered; and, 4) the EIS unlawfully
constrained the range of options by concentrating on increased
water flows and channel restoration to ignore any integrated
management alternative that incorporated non-flow management
measures.
a. Statutory Mandate
Plaintiffs argue that CVPIA "general" provisions in Sections
3402 and 3406 limit Section 3406(b) (23) water releases to only
the amount necessary to achieve the restoration purposes of the
1984 Act and "to the extent restoration reasonably can be
accomplished by means other than flows, the Secretary must at
least consider utilizing such other means," but did not do so.
(Emphasis in original). Doc. 233 at 17:11-14 (SMUD motion).
i.Statutory History
93
The Trinity River Division was authorized in 1955 by Public
Law 84-386 (~1955 Act"). ’~For the principal purpose of increasing
the supply of water available for irrigation and o~er beneficial
uses in the Central Valley of California, the Secretary of the
Interior, acting pursuant to the Federal reclamation laws
is authorized to construct, operate, and maintain, as an addition
to and an integral part of the Central Valley Project,
California, the Trinity River division Pub. L. No. 84-386,
69 Stat. 719 (1955). Section 2 of the 1955 Act provides:
Subject to the provisions of this Act, the operation of
the Trinity River division shall be integrated and
coordinated, from both a financial and an operational
standpoint, with the operation of other features of the
Central Valley Project, as presently authorized and as
may in the future be authorized by Act of Congress, in
such manner as will effectuate the fullest, most
beneficial, and most economic utilization of the water
resources hereby made available: Provided, that the
Secretary is authorized and directed to adopt
appropriate .measures to insure the preservation and
propa@ation of fish and wildlife, including, but not
limited to, ’"hhe maintenance of the flow of the Trinity
River below the diversion point at not less than one
hundred and fifty cubic feet per second
Id. at § 2 (emphasis added). The Senate Report on the 1955 Act
notes that the ’~development of the Trinity River was planned with
a view to maintaining and improving fishery conditions,and
requires that the project be operated so as to insure the
preservation and propagation of fish and wildlife." S. Rep. No.
84-1154, at 5 (1955); H. Rep. No. 84-602, at 4 (1955).
In 1984, Congress passed the Trinity River Basin Fish and
Wildlife Management Act (~’1984 Act") to restore fish and wildlife
populations to pre-TRD levels. The 1984 Act found ~’the
construction of the Trinity River division of the Central Valley
Project in California, authorized by the Act of August 12, 1955
(69 Stat. 719), has substantially reduced the streamflow in the
Trinity River Basin thereby contributing damage to pools,
spawning gravels, and rearing areas and to a drastic reduction in
the anadromous fish populations ...." Pub. L. No. 98-541 § 1(1)
(1984). It recognizes the 1955 Act directed the Secretary of the
Interior "to take appropriate actions to ensure the preservation
and propagation of such fish and wildlife." Id. at § 1(3). In
order to restore the fish populations to the levels approximating
those that existed immediately prior to TRD construction, the
Secretary was directed to formulate and implement a fish
management program that would include the following components:
(I) The design, construction, operation, and
maintenance of facilities to --
(A) rehabilitate fish habitats in the Trinity River
between Lewiston Dam and Weitchpec;
(B) rehabilitate fish habitats in tributaries of such
river below Lewiston Dam and in the south fork of such
river; and
(C) modernize and otherwise increase the effectiveness
of the Trinity River Fish Hatchery.
(2) The establishment of a procedure to monitor (A) the
fish and wildlife stock on a continuing basis, and (B)
the effectiveness of the rehabilitation work.
(3) Such other activities as the Secretary determines
to be necessary to achieve the long-term goal of the
program.
Id. at § 2(a).
In 1992, Congress enacted the CVPIA. Pub. L. No. 102-575,
106 Stat. 4600 (1992):
(a) to protect, restore, and enhance fish, wildlife,
and associated habitats in the Central Valley and
Trinity River basins of California;
(b) to address impacts of the Central Valley Project
on fish, wildlife and associated habitats;
95
(c) to improve the operational flexibility of the
Central Valley Project;
(f) to achieve a reasonable balance among competing
demands for use of Central Valley Project water,
including the requirements of fish and wildlife,
agricultural, municipal and industrial and power
contractors.
Pub. L. No. 102-575, § 3402 (1992).
Section 3406(a) amended the CVP Authorization Act of August
26, 1937 by, inter alia, inserting the following sentence: ’IThe
mitigation for fish and wildlife losses incurred as a result of
construction, operation, or maintenance of the Central Valley
Project shal! be based on the replacement of ecologically
equivalent habitat ...." It also added the mitigation,
protection and restoration of fish and wildlife as one of the
purposes of the CVP.
CVPIA Section 3406(b) addresses fish, wildlife, and habitat
restoration.It begins with a general statement that: "The
Secretary shall operate the Central Valley Project to meet
all obligations under State and Federal law, including but not
limited to the Federal Endangered Species Act, 16 U.S.C. 1531, et
seq., and al! decisions of the California State Water Resources
Control Board establishing conditions on applicable licenses and
permits for the project." Id. at § 3406(b). It then lists
twenty-three specific actions the Secretary is to take.
Section 3406(b) (23) provides that an instream flow of not
less than 340,000 AF of water shal! be released each year from
the Trinity River Division for the purposes of fishery
restoration, propagation, and maintenance. Section (b) (23)
96
directs the Secretary to complete the TRFES "in a manner which
insures the development of recommendations, based on the best
available scientific data, regarding permanent instream fishery
flow requirements and Trinity River Division operating criteria
and procedures for the restoration and maintenance of the Trinity
River fishery." Pub. L. No. 102-575 § 3406(b) (23) (A). Section
(b) (23) (B) directs the Secretary to forward the TRFES to Congress
and if the Secretary and the Hoopa Valley Tribe concur in the
TRFES’ recommendations, to implement the instream fishery releases
to meet the fishery restoration goals of the 1984 Act. Section
(b) (23) has an express, further purpose to meet federal trust
responsibilities to the Hoopa Valley Tribe.
In 1996, Congress amended the 1984 Act. Congress directed
that Trinity River restoration was to be measured not only by
returning adult anadromous fish spawners, but also by the ability
of dependant tribal, commercial, and sport fisheries to
participate fully, through in-river and ocean harvest
opportunities, in the benefits of the restoration. Pub. L. No.
104-408 (1996). Congress added language that amended the
activities that were to be undertaken by the Secretary. Ido The
original language directed the Secretary to "modernize and
otherwise increase the effectiveness of the Trinity River Fish
hatchery. The 1996 Act added "so that it can best service its
purpose of mitigation of fish habitat loss above Lewiston Dam
while not impairing efforts to restore and maintain naturally
reproducing anadromous fish stocks within the basin." Id.
Contrary to the EIS management team’s scope definition, the
restoration of the TR fishery goes beyond the Trinity mainstem
fishery to fish stocks within the Trinity River basin and to
habitats in tributaries and the south fork of that river below
Lewiston Dam. § 2(a) (i) (B).
ii. Plaintiffs’ ’~Only Enough Necessary" Argument
Plaintiffs argue the various laws applicable to CVP
management and TR restoration require that only enough water be
devoted to TR restoration as necessary and no more.
Specifically, they contend that CVPIA sections 3402(f) and
3406(b) require balancing all the competing interests of CVP
water users and such balancing necessarily limits the amount of
CVP water restored to Trinity River. Section 3402 and the
prefatory provisions of Section 3406(b) are general provisions,
controlled by the more specific provisions found in the
subsections of Section 3406(b). Westlands, 43 F.3d at 461-62.
Section 3406(b) (23) directs that the TRFES be completed and that
it make recommendations, based on the best available scientific
data, for permanent fishery flow requirements. The volume of
flows is to be determined by the Secretary.
What water is necessary for restorative instream flows is
not a subject to be second-guessed by a court unless Interior’s
decision is arbitrary, capricious, or unlawful.34 Morongo Band of
3~ Reference to the 1984 Act does not change this. Section
(b) (27) incorporates the 1984 Act’s goa! to restore fish and
wildlife populations to pre-TRD levels. The means selected to
98
Mission Indians v. Fed. Aviation Admin., 161 F.3d 569, 576 (9th
Cir. 1998) (~’[W]here an issue requires ’a high level of technical
expertise, we must defer to the informed discretion of the
responsible federal agencies.’") (quoting Marsh, 490 U.S. at 377).
SMUD argues that the limited alternatives considered,
impermissibly constrained Interior from formulating and analyzing
a multi-purpose alternative: restore the fishery and secondarily
protect the needs of all other CVP users. Citing Greenpeace v.
Nat~ Marine Fisheries Servs., 55 F.Supp.2d 1248 (W.D. Wa. 1999)
(EIS/R that did not evaluate as an alternative, integrated total
allowable fish catch with other management measures; such as
location and timing of fishery, year types and groupings, product
quality, habitat alteration, and markets, prevented decision-
makers from making fully informed choice).
SMUD’s fourth and fifth claims assert Interior abdicated its
obligations under the CVPIA and other federal reclamation law to
manage the Trinity River division for multiple purposes to
effectuate the most beneficial and economic utilization of
Trinity River water; to meet requirements of the 1984 TR
Management Act; and to achieve reasonable balance among multiple
interests that depend on CVP water. CVPIA § 3406(2)(f). The
first assertion that permanent annual flow volumes cannot be
achieve this goal were rehabilitation of the Trinity River
mainstem and tributaries, and increased hatchery production to
replace lost habitat below Lewiston Dam. The CVPIA addressed
another means of achieving the 1984 Act’s goal, i.e., increased
flows. The 1996 amendment of the 1984 Act expands the scope and
standard of restoration.
99
"scientifically justified" is not supported by science or history.
The Trinity River has been actively studied for over 20 years
and the proposed implementation of flow volumes to restore the
river is variable to the extent of the water year class. Habitat
restoration focuses on channel rehabilitation efforts.
The ROD’s permanent variable annual aggregate flow volume is
fixed without regard to actual future experience. Interior is
the manager of the CVP and has discretion to determine the timing
and volume of water releases throughout the water year; to
incorporate additiona! objectives beyond restoring and
maintaining the fishery; i.e., to meet reservoir storage
requirements; management of peak flows for hydropower production,
flood contro! releases to serve safety; and to manage annual
available CVP water supply to satisfy contractual obligations.
The adoption of finite annual aggregate flow release volumes to
be retained within the Trinity Basin is rationally related to the
Bureau’s management function to restore the fishery and
facilitates planning and annual publication of available water
from all CVP storage reservoirs.
Choosing a new flow regime that divides approximately 50% of
Trinity River flows north of Lewiston Dam between the Trinity and
Sacramento River Basins, instead of the historical average of 75%
to 90% diversion to the Sacramento Basin and south, since TRD
completion in 1964, is not per se irrationa!, arbitrary, or
capricious to implement the congressional mandate to restore and
maintain the Trinity River fishery. The adopted schedule retains
!oo
approximately 48% of Trinity River water for restoration in the
Trinity mainstembetween Lewiston Dam and Weitchpec, with 52%
released to the Sacramento River Basin for the benefit of Central
Valley species and users, including SMUD. The restoration
standard has been set to approximate pre-TRD conditions. The
ultimate NEPA issue centers on whether the intentional narrowing
of the EIS purpose to concentrate on increased water flows and
channel rehabilitation prevented the decision-maker and the Court
from assessing the utility of a variable flow alternative that
uses non-flow measures to serve all the statutory objectives of
the 1984 Act as amended, the CVPIA, and the secondary purposes of
minimizing effects on all other CVP water users.
c. Legal Interpretation at EIS Purpose
SMUD recounts the dispute over the purpose of the EIS that
developed within the Management Team. In essence, the view that
prevailed was based on a legal interpretation of the 1984 Act and
the CVPIA, separating the CVPIA flow minimums and final study
requirements to the exclusion of P.L. 98-541’s requirement to
modernize and otherwise increase the effectiveness of the Trinity
River hatchery as part of the broad objective to formulate and
implement a fish and wildlife management program for the Trinity
River basin to restore fish and wildlife populations to the
levels approximating those which existed immediately prior to the
start of construction of the Trinity River Division.
Contrary to the constricted EIS purpose used, the 1984 Act,
ioi
Pub. L. 98-541, § 1(5), 99 Stat. 2721 (October 24, 1984) directed
a "[Trinity River] Basin-wide fish and wildlife management
program," to be achieved by formulating and implementing a plan to
restore fish and wildlife populations to pre-Trinity River
Division levels. The October 30, 1992, CVPIA mandated minimum
annual 340,000 AF flows "to meet the fishery restoration goals" of
the 1948 Act and a completed Trinity River Flow Evaluation Study
by December 1996, through recommendations for permanent instream
fishery flow requirements and Trinity River Division Operating
Criteria and Procedures to restore and maintain the Trinity River
fishery. § 3406(b)(23)(A). Unambiguous statutory language
requires permanent Trinity River restoration flows and TRD
operating criteria and procedures. The 1984 Act was reauthorized
in 1996 by statutory amendment.
As a matter of statutory interpretation, the CVPIA specific
minimum flows and direction to formulate permanent TR restoration
flows and TRD operating criteria and procedures, take precedence
over more general language of the 1984 Act. Edmund v. United
States, 520 U.S. 651, 657 (1997); In re Padilla, 222 F.3d 1184,
1192 (9th Cir. 2000) (where specific and general statute
addresses same subject matter, specific takes precedence
regardless of sequence of enactment and must be applied first).
However, the ’84 Act goal of achieving pre-TRD levels of fish and
wildlife in the Trinity Basin, not just the Trinity River
mainstem, was not repealed or modified and was re-emphasized and
further defined in the 1996 Act. The CVPIA includes a balancing
102
of competing demands for use of CVP water objectives, which,
although secondary to the more specific restoration goals of
(b) (23), should have been given consideration in the NEPA review
because (b)(23) also refers to the ’84 Act as restoration
authority. The management team’s pre-litigation legal
interpretation, narrowing the EIS purpose, is entitled to no
judicial deference, because it is not reasonable and ignores the
additiona! statutory goals of improving not only the mainstem,
but also tributaries and south fork, and balancing competing CVP
uses. The CVPIA does not narrow the legislative purpose of
Trinity River restoration, which remains basin-wide, and does not
include only the TR mainstem between Lewiston Dam and Weitchpec.
b. Range of Alternatives
Plaintiffs argue that Interior’s EIS did not consider a
sufficient number of different alternatives. This issue turns in
part on the purpose of the EIS, which, according to Interior, is
’~to carry out the Congressional directive in subsection (b)(23) of
the CVPIA to assess environmental issues, alternatives and
impacts associated with the restoration of natural production of
anadromous fish on the Trinity River mainstem downstream of
Lewiston Dam." Aug. 20, 2002 hearing at 6:1-6 (Mr. Shockey).
SMUD agrees that the EIS’s purpose is to restore anadromous
fish in the Trinity River and that the directive is to accomplish
this goal by increased flows,as as (b) (23) provides for permanent
3~ "~MUD does not disagree with the federal defendants or
the Tribes that the purpose as stated, as Mr. Shockey points out,
103
instream fishery flow requirements. SMUD argues that the range
of alternatives, to achieve this purpose was too narrow and
arbitrary because lower flows could have been recommended if non-
flow restoration measures were integrated with flow measures.
SMUD complains the TRFES wrongfully adopts an ~’ecological
perspective philosophy" which abandons basin-wide considerations
to concentrate on maximized fixed flow requirements which prevent
applying integrated management measures to address constantly
changing hydrological conditions.
stated on the first page of the EiS, was to restore the
anadromous fishery in the mainstem of the Trinity River. SMUD
does not disagree that taken together, the statutes amount to a
federal directive to accomplish this goal by way of increased
flows into the Trinity mainstem." Aug. 20, 2002 hearing at 11:9-
17 (Mr. Saxton).
104
The Water Districts argue that Interior improperly
substituted the statutory goal of restoring the fishery with a
"dynamic alluvial river objective."36 Aug. 20, 2002 hearing at
18:5 (Mr. O’Hanlon). The water districts’ argument is essentially
that added ’~river objectives" are not required in the selection of
alternatives.37 They argue this caused Interior to only consider
flow-related alternatives to the exclusion of an Integrated
Management Alternative proposed by SMUD’s expert. This part of
the controversy centers on the ’Irestore and maintain a ’healthy’
~6 SMUD also made this argument in their papers, but did
not raise it at oral argument when asked to identify the purpose
of the EIS.
~7 The stated purpose of the EIS is to "restore and maintain
the natura! production of anadromous fish on the Trinity River
mainstem downstream of Lewiston Dam." DEIS at 1-4. However, in
addition to this purpose the EIS had the goal of restoring and
maintaining a "’healthy’ Trinity R±ver mainstem downstream of
Lewiston Dam" which was further defined by the establishment of
~’qualitative ’healthy river’ objectives." id. This goal
"established a framework for the DEIS." Id. Besides ten "healthy
river" goals there are goals related to the salmonid population
restoration, Trinity County, and CEQA compliance.
105
Trinity River in part by establishing ’healthy river’ objectives
based on ’known and presumed attributes of the pre-dam Trinity
River.’" DEiS 1, 12-13.
C.Legal Interpretation of EIS Purposes
SMUD points to the early dispute over the purpose of the EIS
that developed within the EIS Management Team. The approach that
prevailed was based on the team’s legal interpretation of the 1984
Act, CVPIA, and 1996 Act, that separated the CVPIA flow minimums
and final study requirements, to the exclusion of the ’84 and ’96
Acts’ broader purposes, which include an integrated 16-point
Trinity River Fish and Management program covering water flows,
sediment management, tributaries rehabilitation, hatchery
modification, and stream and land use management. The adopted
EIS purpose also rejected the statutory direction to modernize
and otherwise increase the effectiveness of the Trinity River
hatchery as part of the broad statutory objective to formulate
and implement a fish and wildlife management program for the
Trinity River basin, (AR 27289) which would restore the fish and
wildlife populations in the basin to the levels approximating
those which existed immediately prior to the start of
construction of the Trinity River Division.
SMUD points to letters and memoranda evidencing that legal
advisors to the EIS management team intentionally narrowed and
limited the scope and content of the EIS to ultimately focus only
on increased flows and channel restoration of the mainstem
106
Trinity River below Lewiston Dam and Weitchpec, purposefully
ignoring the rest of the Trinity River basin, tributaries, south
fork, and impacts on other CVP uses and users. In intentionally
limiting the scope of the EIS, the EIS managers recognized time
was short and they improperly sought to attenuate the range of
alternatives considered to restrict public participation and to
permit completion of the ROD within the then-perceived 1996 time
deadline.
SMUD further argues that by seizing on the reference to
’~natural" fish restoration, which appears in (b) (23) the legal
advisors manipulated the EIS’ focus to ignore Trinity River Fish
Hatchery improvements, measures other than flow releases, and
improperly locked-in an excessive permanent flow regime adopted
by the ROD, ignoring non-flow alternatives as additional means to
achieve restoration. Defendants acknowledge that the ROD relies
on experimental, untested methodology, which "will be evaluated in
the future." (AR 623, 587-90, 92-94, 623-24, 632, 636-37, 639-40,
643, 652, 661, 733, 770, 778, 804-07).
SMUD asserts no deference is owed to the pre-litigation
legal position here taken by Interior, even if it interprets
legislation the agency implements. Gilliland v. E.J. Bartells
Co., Inc., 270 F.3d 1259, 1262 (9th Cir. 2001) (litigation
position entitled to deference only if reasonable). Ultimately,
the narrowing and limitation of the alternatives considered to
increased permanent flows, channel restoration, minor watershed
protection, consisting of sediment-control measures already i~
107
place and road de-commissioning, resulted in an EIS that did not
adequately.or honestly consider whether an integrated management
alternative, based on stream restoration science presently
utilized by Interior that integrates multiple approaches to
fishery restoration that would take into account the overall
effect on other CVP users.
SMUD contends that the ROD is arbitrary and capricious
because its recommended permanent flows are hypothetical,
untested, and unreliable. No matter what actual experience and
adaptive management proves, the ROD has permanently locked-in and
prohibits change in flow volumes below its established minimum
flows for each annual hydrologic year-type. Interior neither
explains nor analyzes the failure to consider an integrated
management alternative with secondary objectives to minimize
impacts on other CVP users.
i. The Law
An EIS must discuss reasonable alternatives to a proposed
action. American Rivers v. Fed. Energy Regulatory Commh, 201
F.3d 1186, 1201 (gth Cir. 1999); 42 U.S.C. § 4332(2) (C) (iii).
Section 1502.14 of the CEQ regulations requires agencies to
"[r]igorously explore and objectively evaluate all reasonable
alternatives," to include a ’~no action" alternative, and a
preferred alternative. 40 C.F.R. § 1502.14. However, agencies
are not required to include "every alternative device and thought
conceivable by the mind of man." Vermont Yankee Nuclear Power
108
Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519,
551 (1978). ~’The range of alternatives that must be considered in
the EIS need not extend beyond those reasonably related to the
purposes of the project." Laguna Greenbelt, Inc. v. Dep~ of
Transp., 42 F.3d 517, 524 (9th Cir. 1994).
When determining whether a reasonable range of alternatives
was considered, the ’~touchstone" is whether the EIS’s "selection
and discussion of alternatives fosters informed decision-making
and informed public participation." Headwaters, Inc. v. Bureau of
Land Management, Medford Dist., 914 F.2d 1174, 1180 (9th Cir.
1990) (quoting Block, 690 F.2d at 767). NEPA does not require
the consideration of alternatives: whose effect cannot be
reasonably ascertained; whose implementation is remote or
speculative; which are infeasible, ineffective, or inconsistent
with basic policy objectives; or which are not significantly
distinguishable from alternatives actually considered, or; which
have substantially similar consequences. Id. at 1180-81.
However, "an agency cannot define its objectives in unreasonably
narrow terms" to restrict the range of reasonable alternatives.
City of Carmel-By-The-Sea v. Dep~ of Transp., 123 F.3d 1142, 1155
(9th Cir. 1997). The ~’rule of reason" guides both the choice of
alternatives and the extent to which an EIS must discuss each
alternative. American Rivers, 201 F.3d at 1201.
Interior observes it has concurrent discretion to determine
how best to restore the Tribes’ reserved fishing rights in the
Trinity River as part of the express federal trust obligation to
109
the Indian Tribes, in part defined in the 1996 amendment of the
1984 Act. Parrows v. Babbitt, 70 F.3d 539, 542 (9th Cir. 1995).
ii. Alternatives Considered
The DEIS identified four alternatives to meet the statutory
purpose, goals, and objectives: I) Maximum Flow, dedicating all
Trinity River flows above Trinity Dam to fishery restoration; 2)
Flow Evaluation, utilizing managed flows and mechanical
rehabilitation; 3) Percent Inflow reducing released water into
the Trinity River at forty per cent of the rate it flows into the
Trinity Reservoir; and 4) Mechanical Restoration, using
mechanical means to alter the river channel and create fish
protection habitat. DEIS at 2-1. In addition to these four
alternatives, measures including ’~No Action, ....maintaining the
status quo," and ’IState Permit," reducing annual 340,000 AF flows
to 120,500 AF, the level specified in Interior’s 1959 water
permits, were also analyzed. Id. The State Permit Alternative
was analyzed as a standard against which to compare other
alternatives, because it is the baseline for state permitting
purposes. Id. However, it is not viable as it calls for flows
less than the statutory minimum.
The Maximum Flow Alternative "would use all of the Trinity
River inflows above Trinity Dam to restore the river ecosystem
through managed flows, which would include periodic peak flow
releases." DEIS at 2-11. No mechanical restoration would be
ii0
carried out. Id. at 2-12. The Flow Evaluation Alternative is
based on the TRFES recommendations. Id. at 2-16. Forty-seven
mechanical rehabilitation projects would be constructed under
this alternative. Id. at 2-21. The Percent Inflow Alternative
~’would approximate natural flow patterns, at a reduced scale, by
releasing water into the Trinity River at a proportion of the
rate it flows into Trinity Reservoir." Id. at 2-22. The water
released would approximate 40 percent of the previous week’s
inflow. This option would include the same mechanical channel
restoration projects as the Flow Evaluation Alternative. Id. at
2-25. The Mechanical Restoration Alternative maintains instream
flows at 340,000 AF/year and depends on mechanica! means to
restore the fish population. Id. at 2-26. It would include
watershed protection measures, forty-seven channel rehabilitation
projects, and dredging of ten potential pools. Id. at 2:29-30.
The State Permit Alternative would reduce the flows to 120,500
AF/year as specified in Reclamation’s state water permits. Id. at
2-31. No mechanical restoration projects would be undertaken.
Id. The No Action Alternative ~’represents ongoing activities and
operations’’ and reflects conditions in the year 2020. Id. at 2-4.
It assumes ongoing watershed protection measures will continue
and that current habitat improvement projects and programs,
including the maintenance of twenty-seven existing channel
rehabilitation projects, will also continue. Id. at 2-7-8.
In addition to the alternatives discussed in the DEIS, the
agency severally considered and discussed, but rejected without
!!I
detailed analysis, the following measures: 1) removal of Trinity
and Lewiston Dams; 2) harvest management; 3) fish passage
facilities; 4) trucking fish around the dams; 5) predator
control; 6) increased hatchery production; 7) pumped storage;
and, 8) channel augmentation using Weaver Creek. DEIS at 2-35-
42. Removal of the dams was not considered viable because of
environmental impacts and foregone benefits and costs. The
Harvest Management Alternative was rejected because habitat, and
not the number of spawning adults, was the limiting factor in
natural production of anadromous fish. Even with harvesting
restrictions and increased spawning escapement, natural fish
production declined. Id. at 2-39. The Predator Control
Alternative was rejected for the same reason. Id. at 2-40.
Increased hatchery production was rejected because it did not
increase the number of ~’naturally, reproducing anadromous fish.
Id. at 2-41. SMUD complains it was error to separately analyze
and reject each management measure as a stand-alone alternative
and not as an integrated plan.
The Preferred Alternative was the Flow Evaluation
Alternative with additional watershed improvements described in
the Mechanical Restoration Alternative. DEIS at 2-3. The
Preferred Alternative was selected using six screening criteria:
1) substantially increases natural production of anadromous fish
on the Trinity River; 2) substantially restores both inriver and
ocean fishing opportunities; 3) improves tribal access to trust
resources; 4) balances environmental and social impacts; 5)
112
allows for continued operation of the TRD; and, 6) limits
flooding. Id.
iv. Were Sufficient Alternatives Considered?
Plaintiffs contend the EIS too narrowly focused on
alternatives designed to increase flows, improve habitat and
summarily rejected alternatives that could not by themselves
restore fish populations.
A. Focus of EIS
Plaintiffs complain the lead agencies exclusively focused on
alternatives designed to alter the geomorphic environment of the
Trinity River. The purpose of the EIS is to "restore and maintain
the natural production of anadromous fish on the Trinity River
mainstem downstream of Lewiston Dam." Plaintiffs are correct that
the alternatives analyzed by the EIS are all directed at
restoring the mainstem Trinity River fish habitat below Lewiston
Dam. For instance, harvest management was rejected because the
preliminary analysis showed that limited habitat, not harvest
restrictions, was the reason for the fishery’s decline. "The
results of the analysis indicated that although spawner
escapement increased due to increasing harvest restrictions,
natural production, as indicated by the production index,
actually decreased ....The lack of a positive response (i.e.,
increase in production) with increasing harvest restrictions was
due to the current quantity and quality of anadromous fish
1±3
habitat in the Trinity River." DEIS at 2-39. Predator control
was rejected for the same reason. Id. at 2-40. Increased
hatchery production was rejected because ~’[e]vidence shows that
increasing hatchery production can significantly impair efforts
to restore and maintain naturally reproducing fish stocks. Id.
at 2-41.
Agencies are not required to consider options that conflict
with basic policy objectives. Headwaters, 914 F.2d at 1180-81.
Here, the purpose of the EIS was to restore "naturally"
reproducing anadromous fish in the Trinity River mainstem
downstream of Lewiston Dam, not just increase fish population.
In addition, the 1996 Act limited the use of hatchery production
by requiring that it not impair efforts to restore and maintain
’~naturally" reproducing anadromous fish stocks in the basin. Pub.
L. No. 104-143, at § 3(c). SMUD complains that science
recognizes that integrated management applied in combination in
limited degrees, including hatchery production, harvest
management and predator control, will enhance fishery
restoration efforts while affording protection to other CVP uses.
Interior has the discretion not to use such measures as stand-
alone alternatives; however, Plaintiffs are correct that Interior
did not take a hard look at, or consider in depth, a fully
integrated management alternative that reduced variable flow
increases in conjunction with other management prescriptions.
Because NEPA requires fair consideration of reasonable (feasible)
alternatives, including discussion of the alternatives and
114
opposing viewpoints, to avoid undue narrowing of the means of
achieving the purpose of an EIS, an SEIS should have been
prepared. City of Carmel-by-the-Sea v. U.S. Dept. Transp., 123
F.3d 1142, 1155 (9th Cir. 1999); cited in American Rivers v.
F.E.R.C., 201 F.3d 1186, 1200 (9th Cir. 1999).
b.Rejection of Stand-Alone Alternatives
that Could Not Restore Fish Populations
Plaintiffs complain the EIS considered each potential
restorative alternative standing alone without combining them
into an Integrated Management Plan. Specifically they object
that the Harvest Management and the Hatchery Management
alternatives were not combined with lower flows in a separate
alternative. To the extent this argument is related to these two
specific alternatives, they have been discussed.
c. Integrated Man~.gement Alternative
Plaintiffs argue, based on the post-ROD expert opinion of
Dr. Hanson, that an Integrated Management Alternative was
essential to reasonableness of the range of alternatives; should
have been analyzed as a reasonable alternative; and failure to do
so was arbitrary, capricious, or unlawful. Plaintiffs point to
the 1984 Act which directs the Secretary to take an integrated
approach to restoring the Trinity River. However, the disputed
EIS is not the first EIS on the Trinity River restoration. An
EIS was completed in 1983 on the Trinity River Basin Fish and
115
Wildlife Management Program. DEIS at 1-12. The 1984 Act was
passed to give the Secretary the authority to implement that
plan. Pub. L. No. 98-541, at § 1(6). This followed Interior’s
Solicitor’s opinion, citing legislative history, that the 1955 Act
authorized the Permit, and required instreem flow needs in the
Trinity River Basin to be met before water was exported.
The current EIS evaluates and analyzes the mechanical river
restoration projects and the TRFES’ recommendation and
alternatives.~8 Interior Objects to SMUD’s Integrated Management
Alternative claiming it was not presented in the NEPA public
comment period; Vermont Yankee Nuclear Power Corp. v. Natural
Resources Defense Council, 435 U.S. 519, 551-53 (1978), yet
nonetheless responds on the merits. The declaration of Dr.
Hanson is considered to aid the Court in understanding applicable
river restoration science and to assist the evaluation whether
Integrated Management alternative was reasonable and should have
been considered and discussed.
When determining whether a reasonable range of alternatives
was considered, the "touchstone" is whether the EIS’s "selection
and discussion of alternatives fosters informed decision-making
and informed public participation." Headwaters, 914 F.2d at 1180.
NEPA does not require the consideration of alternatives whose
3~ In 1993, the USFWS and Trinity County began an
Environmental Assessment ("EA") to evaluate the channel
rehabilitation projects, in July 1994, the Secretary mandated
that an EiS be prepared to evaluate any new channel
rehab!_lta~lon projects as well as the TRFES recommendations and
any reasonable alternatives. The current EiS was the result.
116
effect cannot be reasonably ascertained; whose implementation is
remote or speculative; which are infeasible, ineffective, or
inconsistent with basic policy objectives, or; which are not
significantly distinguishable from alternatives actually
considered or which have substantially similar consequences. Id.
at 1180-81. However, ’~an agency cannot define its objectives in
unreasonably narrow terms" to avoid a range of reasonable
alternatives. City of Carmel-By-The-Sea, 123 F.3d at 1155. The
EIS should analyze and consider the ’~full spectrum." The ~rule of
reason" guides the choice of alternatives. .American Rivers, 201
F.3d at 1201.
The plaintiffs argue that the EIS had to consider an
alternative that restored TR anadromous fish while minimizing the
effect on competing CVP uses. Plaintiffs’ proposed Integrated
Management Alternative involves: ~(I) instream and watershed
habitat protection; (2) instream and watershed habitat
restoration and improvement; (3) hatchery management and stock
supplementation; (4) predator control; (5) inland and ocean
harvest; (6) water quality control; and, .(7) land management
within the watershed and along the stream channel corridor, as
well as other elements." Doc. 236 at ~ 4 (Hanson Decl.). SMUD’s
comments on the DEIS raised 67 points. App. D3-2579 to 2646.
Interior responded to each, either directly or by reference in
thematic responses included in the FEIS, but as stand-alone
measures, not as an integrated plan.
SMUD’s proposed alternative combines increased flows with a
117
variety of mechanical restoration measures. The Preferred
Alternative does combine increased variable annual flow releases
from Lewiston Dam, coarse sediment introduction, mechanical
channel rehabilitation and adaptive management, which includes
watershed protection. All alternatives were analyzed assuming
that the current fish population management programs would
continue. The relevant statutes and Interior’s preliminary
findings limit the applicability of harvest management and
hatchery management. Ultimately, plaintiffs seek the absolute
minimum increase of flow and a greater proportion of mechanical
restoration and watershed management through hatchery and harvest
management, predator control and other non-flow means, in
contrast with the Preferred Alternative. Interior disagrees and
supports its opposing view with the Trush, ~ 4, and Polos
declarations. The latest input purports to respond to plaintiffs’
proposed alternatives, but not in the context of NEPA public
comment to permit informed decision-making. The absence of
public participation, full consideration, or discussion in the
NEPA process of an Integrated Management Alternative, that sought
to minimize impacts on other CVP users, requires an SEIS.
D. Method of Selection
Plaintiffs assert the method used to select the Preferred
Alternative preordained the alternative chosen. Specifically,
Interior used the Trinity River System Attribute Analysis
Methodology (~TRSAAM") to create the Preferred Alternative and
118
then applied it to choose among options which included only one
viable choice, the Preferred Alternative.
The fishery restoration analysis in the EIS used the same
"healthy river" attributes employed by the TRFES. However, the
EIS analyzed the alternatives not only against those attributes,
but other criteria as well. The Preferred Alternative was
selected using six screening criteria: I) substantially increases
natural production of anadromous fish on the Trinity River; 2)
substantially restores both inriver and ocean fishing
opportunities; 3) improves tribal access to trust resources; 4)
balances environmental and social impacts; 5) allows for
continued operation of the TRD; and, 6) limits flooding. DEIS at
2-3. Although Plaintiffs do not contend that the screening
criteria used are arbitrary or irrational, nor that each criteria
does not serve the statutory fishery restoration purpose; they
msintain no realistic alternative was provided.
E. Reasonableness of Alternatives
Plaintiffs argue the only viable alternative analyzed was
the Flow Evaluation Alternative, because the other "reasonable"
alternatives were "strawmen." The EIS identified four "reasonable
alternatives:" Maximum Flow; Flow Evaluation; Percent Flow, and;
Mechanical Restoration, along with a no action alternative.
Eventually a combination of the Flow Evaluation and the
Mechanical Restoration alternatives was selected as the Preferred
Alternative. Plaintiffs contend the alternatives wrongfully
119
focused solely on increased flows and flow-related measures to
the exclusion of non- or reduced-flow alternatives.
The Maximum Flow Alternative would release all water that
flows into the Trinity River above Lewiston Dam. Plaintiffs
argue that this is a ~straw" alternative because it is the
functional equivalent of removing the Dam, which was rejected
prior to analysis by the agency. All water that enters the
reservoir would be released under this alternative, so the only
difference between it and Trinity Dam removal is that the dam
would remain in place. Interior determined removal of the dams
was impractical because of environmental impacts, foregone
benefits, and removal costs. Some of these concerns are the same
as those raised by the Maximum Flow Alternative, but the costs
related to the two alternatives are not co-extensive. While the
Maximum Flow Alternative is at the end of the spectrum of
reasonableness, it evaluates conditions under maximum potential
flow condition.
Plaintiffs maintain the Percent Flow and Mechanical
Restoration alternatives were not viable because they could not
meet the ten attributes of a healthy river. The ten attributes
of a healthy river were not the only criteria which drove
selection of the Preferred Alternative. While the Flow
Evaluation Alternative may have had an advantage under the
healthy river criteria, other issues were considered. The
Mechanical Restoration Alternative incorporates physical
improvements to the river to maximize beneficial effects on fish
120
habitat.
Plaintiffs suggest the Percent Flow Alternative was a
’~strawman" because it could not be implemented based on the
statutory requirement that a minimum of 340,000 AF of water be
released into the Trinity River each year. Section (b) (23)
provides that ~’[i]f the secretary and the Hoopa Valley Tribe
concur in these recommendations, any increase to the minimum
Trinity River instream fishery releases established under this
paragraph and the operating criteria and procedures referred to
in subparagraph (A) shall be implemented accordingly." The
Percent Flow Alternative does not meet the 340,000 AF minimum in
dry and critically dry years.39 At oral argument, the federal
defendants argued that this did not make the option unreasonable
because the Secretary could change the alternative by requiring
that mandatory minimum flows be released during dry and
critically dry years. The point of the EIS is to inform the
public and the Secretary of the reasonable alternatives available
and the impacts of those alternatives. A Percent Inflow
Alternative that included 340,000 AF in dry and critically dry
years is different from one that does not have this requirement.
An EIS alternative that is inconsistent with and violates a
statutory minimum flow mandate is not reasonable, because it
assumes a flow condition that could not be implemented absent
Congressional action to amend the CVP!A. This alternative was
3~ Under the Percent inflow Alternative 165,000 AF would be
released in critically dry years, and 325,000 AF would be
released in dry years. DEIS, at 2-25.
121
not reasonable because it could not be implemented.
f. Lower Flow Evaluation Alternative
Plaintiffs argue that the EIS itself suggests a lower flow
alternative exists. The TRFEFR lists ranges of water flows that
could possibly achieve the healthy river objectives. The report
selected a number from within this range. Plaintiffs argue that
there should have been more than one flow evaluation alternative
analyzed in the EIS based on these numbers, i.e., one that was at
the lower end of the range.
’i[A]n agency’s consideration of alternatives is sufficient if
it analyzes an appropriate range of alternatives, even if it does
not consider every available alternative." Headwaters, 914 F.2d
at 1181. Alternatives that are not significantly distinguishable
from an alternative already considered need not be analyzed. Id.
The ranges contained in the TRFEFR are for peak flows in the
various water year types. The difference between the !owest
number in the range and the number selected by the TRFES is:
3,000 cfs in extremely wet years; 2,500 cfs in wet years; 1,000
cfs in normal years; 800 cfs in dry years, and; 200 cfs in
critically dry years. These peak flows are to run for five-days
under all water year types except in critically dry years in
which the peak flow would run for 36 days. The total difference
between the amount analyzed under the Flow Evaluation Alternative
and the lowest possible flow alternative suggested by plaintiffs
is 15,000 cfs in extremely wet years; 12,500 cfs in wet years;
122
5,000 cfs in normal years; 4,000 cfs in dry years, and; 7,200 cfs
in critically dry years. In aggregate terms, the increased flow
vol~mes serve purposes in addition to fishery restoration and
maintenance, including flood control, reservoir storage limits,
and dam safety.
g. Conclusion - Range of Alternatives
Upon close analysis, Interior in actuality considered three
options for Trinity River fishery restoration: The Maximum Flow
Alternative (the maximum increase in CVP water to the Trinity
River); the Flow Evaluation Alternative (mid-range alternative),
and; the Mechanical Restoration Alternative (the minimum amount
of water). This range of alternatives consisted of two extreme
endpoints and one mid-range alternative, which pre-ordained the
selection. Plaintiffs argue that there should have been more
mid-range alternatives considered, i.e., at the least an
alternative that utilized Integrated Management methods,
including non-flow measures, based on available science and
existing fishery restoration methods used in the Lower Mokelumne
River Management Plan, the joint CALFED/SJRMP San Joaquin River
Fishery Technical Team Workshop Report and other restoration
planning on the Sacramento-San Joaquin Rivers and Delta.Such an
analysis would have permitted a hard look at Plaintiffs’
contention that an Integrated Management approach would best
serve the interests of the Trinity River fishery, the CVP, and
all other CVP stakeholders.
123
Considering only one reasonable alternative prevented
"selection and discussion of alternatives [to] enable informed
decision-making and informed public participation." Headwaters,
914 F.2d at 1180; California v. Block, 690 F.2d 753, 766-67 (9th
Cir. 1982). The selection criteria used to chose the Preferred
Alternative, a flow-driven regime in the TR mainstem, which
purposefully avoided restoration by non-flow methods, even if
reasonably calculated to achieve the statutorily defined
objective was premised on an unduly, narrowly-defined EIS
purpose. Other reasonable options exist, as SMUD suggests lower
flows combined with increased mechanical restoration, fishery
management, predator control, harvest management, and related
measures should have been the subject of a hard look. At oral
argument the federal defendants raised another option, the
Percent Inflow Alternative with the dry and critically dry year
flows at the 340,000 AF floor.
The range of alternatives considered was not adequate.
Developing fish passage facilities, trucking fish around dams,
predator control, a pumped storage project and channel
augmentation at Weaver Creek were considered, individually, and
rejected as stand-alone measures under the soporific, such
consideration achieved "clarity," DEIS 2:2-3; Interior also
avoided analysis of "measures that would be addressed by other
natural resource agencies." FEIS D3:2587. DEIS 2, 35-42, FEIS
App. 2, 49. The inclusion of one mid-range option with two
relatively unrealistic alternatives dictated the option selected.
124
Plaintiffs’ contention that the EIS should have been prepared
with multiple purposes which included gauging permanent increases
of CVP water allocated to the Trinity River to minimize impacts
on all other CVP users has merit. Interior was required to take
a hard look at such a reasonable alternative and it did not.
Ultimately, the amount of water permanently rededicated to
the Trinity River to achieve fishery restoration is committed to
the joint discretion of Congress, Interior, and the Tribes to be
implemented under Interior’s CVP management operational
discretion. Interior’s Preferred Alternative and ROD adopt a
permanent and immutable dedication of CVP water to the Trinity
River Mainstem, without the searching and objective analysis NEPA
requires. If Interior is wrong, the permanent flows cannot be
changed without Congressiona! action, if such flows are excessive
or unnecessary. Harm is visited upon other CVP interests when
water is reallocated. Although Interior did consider mechanical
channel restoration, watershed restoration, and "adaptive
management," the public and all other CVP stakeholders were
entitled to have their input timely considered and to have
Interior take a hard look, at the least, at a multiple purpose
alternative that integrated restoration management methods with
secondary objectives set forth in the restoration statutes. The
failure to do so violates NEPA.
Plaintiffs’ motion for summary adjudication on the issue of
the federal defendants’ failure to reasonably scope the purpose of
the EIS and to comply with NEPA based on the unreasonably narrow
125
range of alternatives considered is GRANTED.
motion on the issue is DENIED.
Defendants’ cross-
C.ENDANGERED SPECIES ACT
Section 7 of the ESA, 16 U.S.C. § 1536, requires that
federal agencies "in consultation with and with the assistance of
the Secretary, insure that any action authorized, funded, or
carried out by such agency 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 to be critical,
unless such agency has been granted an exemption.." 16
U.S.C. § 1536(a) (2). When an agency requests formal consultation
under Section 7(a) (2), a formal report, called a biological
opinion, is prepared giving the USFWS’s or the NMFS’s4° opinion
about whether the agency action is "likely to jeopardize the
continued existence of a listed species or result in the
destruction or adverse modification of critical habitat." 16
U.S.C. § 1536(b) (3); 50 C.F.R. § 402.14(h). "Jeopardize the
continued existence of" means engaging in "an action that
reasonably would be expected, directly or indirectly, to reduce
appreciably the likelihood of both the survival and recovery of a
~0 The CFR regulations apply to both the USFWS and the
NMFS. The regulations use the term "Service" to describe both
agencies. 50 C.F.R. § 402.02 (’~Service means the U.S. Fish and
Wildlife Service or the National Marine Fisheries Service, as
appropriate.").
126
listed species in the wild by reducing the reproduction, numbers,
or distribution of that species." 50 C.F.R. § 402.02. If
jeopardy is likely, the report is called a "jeopardy biological
opinion." 50 C.F.R. § 402.14(h) (3). If the action is not likely
to jeopardize the continued existence of a listed species or
result in the destruction or adverse modification of critical
habitat, the report is called a ~no jeopardy biological opinion."
Id.
A jeopardy opinion must consider, and if lawful include,
reasonable and prudent alternatives ("RPAs"). 16 U.S.C.
§ 1536(b) (3) (A) ("If jeopardy or adverse modification is found,
the Secretary shall suggest those reasonable and prudent
alternatives which he believes would not violate subsection (a)
(2) of this section and can be taken by the Federal agency or
applicant in implementing the agency action."); 50 C.F.R. §
402.14(h) (3). RPAs are "alternative actions identified during
formal consultation that can be implemented in a manner
consistent with the intended purpose of the action; that can be
implemented consistent within the scope of the Federal agency’s
legal authority and jurisdiction; that [are] economically and
technologically feasible; and, that the Director believes would
avoid the likelihood of jeopardizing the continued existence of
listed species or result[] in the destruction or adverse
modification of critical habitat." 50 C.F.R. § 402.02.
Where the USFWS or NMFS concludes the agency action and any
127
resultant incidental take41 will not violate Section 7(a) (2) of
the ESA, the Service must include within the opinion an
incidental take statement that, inter alia, specifies reasonable
and prudent measures ("RPMs") that are necessary or appropriate to
minimize such impact. 16 U.S.C. § 1536(b) (4) (C) (ii) ; 50 C.F.R. §
402.14(i). The incidental take statement (ITS) must also specify
"the terms and conditions (including, but not limited to,
reporting requirements) that must be complied with by the Federal
agency or any applicant to implement the [RPMs]." 50 C.F.R. §
402.14(i) (i) (iv). RPMs are ’~actions necessary or
appropriate to minimize the impacts, i.e., amount or extent, of
incidental take." 50 C.F.R. § 402.02. "Reasonable and prudent
measures, along with the terms and conditions that implement
them, cannot alter the basic design, location, scope, duration,
~ "incidental take" is defined as "takings that result
from, but are not the purpose of, carrying out an otherwise
lawfu! activity conducted by the Federa! agency or applicant."
50 C.F.R. § 402.2. "Take~’ means "to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or to attempt to
engage in any such conduct." 16 U.S.C. § 1532(19).
128
or timing of the action and may involve only minor changes." 50
C.F.R. § 402.14(i) (2).
The issuance of biological opinions, RPMs and ITSs by
Interior through the FWS, is final agency action under 16 U.S.C.
§ 1536, subject to judicial review. Challenges to agency action
under the ESA are governed by the APA. Arizona Cattle Growers’
Ass’n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1236 (gth Cir.
2001). An agency’s decision may not be overturned by the court
unless it is arbitrary and capricious. Id. "As long as the
agency decision was based on a consideration ofrelevant factors
and there is no clear error of judgment, the reviewing court may
not overturn the agency’s action." Id.
Plaintiffs argue that the federal defendants committed two
ESA violations: i) the USFWS BioOp unlawfully mandates major
changes in CVP operations, even if the Trinity River restoration
actions will not jeopardize any listed species; and, 2) the NMFS
BioOp arbitrarily mandates the implementation of the ROD’s
instream flow releases in the absence of lethal take of Trinity
River fish. Westlands contends NEPA compliance was required
before biological opinions issued which authorized incidental
take of Sacramento winter-run chinook salmon, Sacramento
splittail, and delta smelt, citing Ramsey v. Kantor, 96 F.3d 434,
437, 444. Defendants correctly cite Southwest Center for
Biological Diversity v. Keasse, CV-S-97-1969 GEB JFM (E.D. Ca
1998), which holds that FWS is not required to file NEPA
documents every time it issues a biological opinion or an
129
incidental take statement. Id. (Ramsey characterized the § 7
ITS as the ’~functional equivalent" of a § 10 permit).
!"USFWS Biological Opinion
The USFWS BioOp is a ~no jeopardy opinion." AR 17536.42
After determining that the Preferred Alternative will not
jeopardize listed species, the BioOp included, as required, an
incidental take statement. The following RPM was a part of the
incidental take statement:
Reclamation shall minimize the effects of reoperating
the CVP resulting from the implementation of the
Preferred Alternative within the Trinity river basin on
listed fish in the Delta.. . . These terms and
conditions are non-discretionary. To implement
Reasonable and Prudent Measure number one Reclamation
must implement the following:
o If Reclamation in its annual operations
planning process detects that implementation
of the Preferred Alternative will result in
an upstream (eastward) movement of X2 in any
month between February 1 through June 30 of
~ ~’After reviewing the current status of the delta smelt,
splittail, the environmental baseline, and the cumulative
effects, it is the Service’s bio!ogical opinion that the proposed
action is not likely to jeopardize the continued existence of
these species, or result in the destruction or adverse
modification of critical habitat for delta smelt." AR 17536.
130
0.5 km, Reclamation shall incorporate within
its operating plan measures that can and will
be implemented to minimize or eliminate such
u_pstreammovements.
AR 17537-38 (emphasis added). Contrary to the government’s
contention that no requirement exists that Interior prevent
upstream movement of X2, the need to control movement of X2 has
the potential to require major changes in CVP operations with
corresponding significant impacts.43 The parties do not dispute
that an RPM may not mandate major changes. 50 C.F.R. §
402.14(i) (2) ("Reasonable and prudent measures, along with the
terms and conditions that implement them, cannot alter the basic
design, location, scope, duration, or timing of the action and
may involve only minor changes.") (emphasis added). An agency’s
action may be set aside if it is not in accordance with the law.
In re Transcon Lines, 89 F.3d 559, 563 (gth Cir. 1996). The
USFWS exceeded its authority in mandating the X2 RPM because it
was not legally authorized to require implementation of an RPM
that would result in the major changes Mr. Bowling recognizes re-
operation of the CVP will necessitate in twenty percent of all
water years. Interior provides no analysis of what the X2 RPMs
will be or their consequences in those years. The X2 RPM is a
major change that cannot lawfully be adopted by a BloOp without
NEPA compliance.
See Chester Bowling statement, infra.
131
Defendants also note that the RPM calls for FWS and the
Bureau to work cooperatively in dry and critically dry years "to
develop temperature objectives in the Trinity and Sacramento
Rivers, which will "not mandate any operational changes." This is
directly contradictory to Mr. Bowling’s opinion that major changes
in CVP operations will be needed in short water years, which are
20% of water years. Plaintiffs’ summary adjudication motion as to
the X2 RPM in the USFWS BioOp is GRANTED, this RPM must be set
aside. The federal defendants’ motion on this issue is DENIED.
2. NMFS Biological Opinion
Plaintiffs argue that there are three problems with NMFS’
BioOp: i) under the ESA, RPMs can only be mandated if there was
a finding of "incidental take" and that NMFS did not make such
finding; 2) even if there was a finding of incidental take the
RPMs are not reasonably calculated to reduce the take related to
gravel placement; and, 3) the RPMs cannot mandate the
implementation of the action upon which the consultation is
based.
a. Finding of Incidental Take
The NMFS may only impose RPMs when there is evidence that
the agency action will result in a "take." Arizona Cattle Growers’
Ass h, 273 F.3d at 1246 ("[A]n Incidental Take Statement must be
predicated on a finding of an incidenta! take."). "Without
t32
evidence that a take would occur as a result of [the agency’s
action], issuing an Incidental Take Statement imposing conditions
on the otherwise lawful use of land was arbitrary and capricious."
Id. at 1246. ~’Incidental take" is defined as ~’takings that
result from, but are not the purpose of, carrying out an
otherwise lawful activity conducted by the Federal agency or
applicant." 50 C.F.R. § 402.2. ~Take" means ’~to harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or
to attempt to engage in any such conduct." 16 U.S.C. § 1532(19).
The NMFS BioOp found:
The NMFS does not anticipate that implementation of the
proposed flow schedules will incidentally take any
SONCC coho salmon. The NMFS does anticipate that SONCC
coho salmon habitat adjacent to and downstream of the
47 channel rehabilitation projects may be temporarily
degraded due to localized turbidity and potential fine
sedimentation of channel substrate during construction
activities. However, the amount of habitat temporarily
degraded due to these localized effects is negligible
compared to the long-term creation of additional
suitable habitat along approximately 40 miles of the
Trinity River. Although placement of spawning gravel
in the Trinity River may temporarily displace (harass)
an unknown number of juvenile coho salmon to
alternative habitats, this is not expected to result in
lethal take of these fish.
AR 17491. Plaintiffs argue that the NMFS findings do not show
that the coho salmon would be "harmed" by implementation of the
ROD. Defendants argue that the NMFS BioOp made a finding that
ROD construction activities would result in either ~harm" or
"harassment."44
4~ Defendants also argue in a footnote that plaintiffs do
not have standing to raise the ESA issue, in Bennett v. Spear,
133
i. Harm
Harm is defined as "an act which actually kills or injures
fish or wildlife. Such an act may include significant habitat
modification or degradation which actually kills or injures fish
or wildlife by significantly impairing essential behavioral
patterns, including, breeding, spawning, rearing, migrating,
feeding or sheltering." 50 C.F.R. § 222.102.
Plaintiffs opine NMFS did not find that any coho salmon
would be killed or injured by the proposed action; citing NMFS’
conclusion that "[a]ithough there may be minor, short lived
adverse effects to juvenile coho salmon as a result of the gravel
supplementation projects, long-term results such as improved
spawning habitat, improved salmonid over-wintering habitat, and a
net increase in aquatic insect production in the immediate and
downstream areas are expected to provide survival benefits to
Trinity River coho salmon populations." AR 17478. Plaintiffs are
520 U.S. 154, 157-77 (1997), the Supreme Court found that
irrigation districts, which received water from a federal water
project and would be effected if the proposed RPAs were
implemented, had standing to sue under Section 7 of the ESA.
134
correct that NMFS found that implementation of the Preferred
Alternative would benefit coho salmon as a whole. However, they
confuse the benefit/harm to the coho salmon population as a whole
with the benefit/harm to individual members of the species.
The NM~S found that the Preferred Alternative would not
result in jeopardy, i.e., that the species as a whole would not
be harmed. However, it also found that the mechanical
restoration measures of the Preferred Alternative might "kill"
individual members of the species. "Reduced egg to fry survival
may occur as a result of fine sediment deposition downstream of a
project site."4s AR 17477.4~ An incidental take statement and
45 Plaintiffs argue, relying on Arizona Cattle Growers’
Assg, that there is no evidence that the fish are in the areas
of the mechanica! restoration projects and therefore there can be
no finding of incidental take. This argument is specious.
Arizona Cattle Growers’ Ass9 found that where there was no
evidence that an ESA-listed species was found on al!otments,
which were approximately 30,000 acres in size, the USFWS could
not mandate RPMs to prevent incidenta! take. Arizona Cattle
Growers’ Ass~, 273 F.3d 1229. Arizona Cattle Growers’ Ass~ also
found that where surveys found an ESA-listed fish "throughout" a
river that ran for approximately 3.5 miles in or adjacent to the
allotment, the inclusion of an incidenta! take statement was not
arbitrary and capricious. The Ninth Circuit did not require
actua! proof that fish were present exactly where they would be
impacted by cattle on the allotment, it is not disputed here
that coho salmon are found throughout the Trinity River below
Lewiston Dam, nor that they are migratory fish.
~ The NMFS also found: "Alternative rearing habitats may
not be as productive in terms of food or cover availability, and
increased competition may occur for these resources resulting in
decreased coho salmon fitness and survival rates." AR 17478.
However, this statement wss contradicted later in the BioOp:
"Although placement of spawning gravel in the Trinity River may
135
RPMs are concerned with reducing the number of individuals
effected by the action, not the survival of the species as a
whole.
ii. Harassment
~’Harass" as included in the definition of "take" is not
defined by statute, but legislative history describes Congress’
intent: ’~[Take] includes harassment, whether intentional or not.
This would allow, for example, the Secretary to regulate or
prohibit the activities of birdwatchers where the effect of those
activities might disturb the birds and make it difficult for them
to hatch or raise their young." H.R. Rep. 93-412, at 11 (1973).
NMFS has not defined the meaning of ~’harass," however the USFWS
has. The USFWS defines ~’harass" as "an intentional or negligent
act or omission which creates the likelihood of injury to
wildlife by annoying it to such an extent as to significantly
disrupt normal behavioral patterns which include, but are not
temporarily displace (harass) an unknown number of juvenile coho
salmon to alternative habitats, this is not expected to result in
letha! take of these fish." AR 17491. Despite the contradiction
about the lethainess of the gravel supplementation process, the
NMFS stil! found that the fitness of displaced fish would be
reduced and that there could be a reduced egg to fry surviva!
rate due to the sedimentation.
136
limited to, breeding, feeding, or sheltering." 50 C.F.R. § 17.3.
The NMFS found: "[c]oho salmon fry and possibly late
outmigrating smelts may be displaced from the gravel deposition
site due to the placement of gravel into the river and/or the
noise from heavy machinery. Displaced juveniles are expected to
seek alternative downstream or upstream habitats for rearing." AR
17477-78. The NMFS also found "[a]ithough placement of spawning
gravel in the Trinity River may temporarily displace (harass) an
unknown number of juvenile coho salmon to alternative habitats,
this is not expected to result in lethal take of these fish." AR
17491. The disruption of coho salmon to the extent that they
migrate to another area of the river is sufficient to rise to the
level of "harassment." This is so even if the disruption is
temporally limited. "Take" is concerned with the effect on
individual species members, not necessarily on the survival of
the species as a whole.
Plaintiffs argue that defining "harass" to include habitat
modification would make the use of the term "harm" in the
statutory definition of "take" a nullity. Congress ’~intended ’take’
to apply broadly." Babbitt v. Sweet Home Chapter of Communities
for a Great Oregon, 515 U.S. 687, 704 (1995). "’Take’ is defined
in the broadest possible manner to include every conceivable
way in which a person can ’take’ (harass) or attempt to ’take’ any
fish or wildlife." S. Rep. No. 93-307, 1973 U.S.C.C.A.N. 2989,
2995 (1973); H.R. Rep. No. 93-412, 11 (1973) ("’Take’ is defined
broadly.").
137
Congress meant each term in the definition of "take ....to
serve a particular function in the ESA, consistent with, but
distinct from, the functions of the other verbs used to define
’take.’" Sweet Home, 515 U.S. at 702. In defining "harm," the
Supreme Court noted:
In contrast, if the statutory term "harm" encompasses
such indirect means of killing and injuring wildlife as
habitat modification, the other terms listed in §
3--"harass," "pursue," "hunt," "shoot," "wound,"
"kill," "trap," "capture," and "collect"--generally
retain independent meanings. Most of those terms refer
to deliberate actions more frequently than does "harm,"
and they therefore do not duplicate the sense of
indirect causation that "harm" adds to the statute. In
addition, most of the other words in the definition
describe either actions from which habitat modification
does not usually result (e.g., "pursue," "harass") or
effects to which activities that modify habitat do not
usually lead (e.g., "trap," "collect"). To the extent
the Secretary’s definition of "harm" may have
applications that overlap with other words in the
definition, that overlap reflects the broad purpose of
the Act.
Id. at 698 n.ll.
The use of the term "harass" in this situation does not make
the term "harm" a nullity. "Harm" is "an act which actually kills
or injures fish or wildlife. Such an act may include significant
habitat modification or degradation which actually kills or
injures fish or wildlife by significantly impairing essential
behavioral patterns, including, breeding, spawning, rearing,
migrating, feeding or sheltering." 50 C.F.R. § 222.102.
Harassment on the other hand occurs when an act annoys fish to
the point where they significantly modify their behavior.
These definitions, while similar, are different. Although in
certain circumstances the two definitions will overlap, mutual
138
exclusivity of the terms defining ’~take" is not required. "To the
extent the Secretary’s definition of ’harm’ may have applications
that overlap with other words in the definition, that overlap
reflects the broad purpose of the Act." Id. at 698 n.11. A
finding of "harassment" in this situation does not nullify "harm."
Interior did not err.
b. Relation of RPM to ’~Take"
Plaintiffs argue that the only incidental take found by NMFS
was that related to gravel displacement and that Terms and
Conditions 1.a. and 1.b. are not rationally related to reducing
the take that would occur as a result. The first RPM in the NMFS
incidental take statement requires Interior to ’~[i]mplement the
flow regimes included in the proposed action (as described in
TRMFR DEIS, page 2-19, Table 2-5) as soon as possible." AR 17492.
To implement that RPM, Interior is directed to comply with three
terms and conditions, the first two of which are in dispute here:
l.a. Following completion of the Record of Decision
addressing the proposed action, Reclamation shall
immediately implement the components of the proposed
flow schedule (as described in the TPdqFR DEIS, page 2-
19, Table 2-5) equal to or less than 6,000 CFS, and
implement the entire flow schedule as soon as possible
(i.e., after infrastructure modifications are
completed);
l.b. As necessary infrastructure modifications are
made, Reclamation shall incrementally implement higher
Trinity River flows (consistent with the proposed flow
regime), e.g., potentially release up to 8,500 CFS
after some bridge modifications, but prior to
completion of the "Bucktail" and "Poker Bar" bridge
replacements.
AR 17493.
139
An incidental take statement may specify RPMs that the
agency "considers necessary or appropriate to minimize" the
incidental taking of the species. 50 C.F.R. § 402.14(i) (I) (ii).
Term and conditions that must be complied with in order to
implement the RPMs must also be set out. 50 C.F.R. §
402.14(i) (i) (iv). RPMs are only required if they are necessary
or appropriate to minimize incidental take.
Here the incidental take will result from ’~temporarily
degraded [conditions] due to localized turbidity and potential
fine sedimentation of channel substrate during construction
activities." AR 17491. Plaintiffs argue that the first two terms
and conditions do not address this harm.47 In doing so they note
that the biological assessment performed by Reclamation and USFWS
found that increased flows would actually increase "turbidity."
The biological assessment found ’lhigher dam releases will produce
a marked increase in sediment transport downstream resulting in
increased turbidity levels due to scour." AR 18354. However, it
also found that the "bench flows" in the Preferred Alternative
would "promote[] transport of fine sediment." AR 18352. Although
the prescribed terms and conditions may make one of the problems
associated with channel rehabilitation worse, i.e., turbidity,
47 Plaintiffs also argue that even if the increased flows
would help mitigate the incidenta! take, the RPM is "wildly
disproportionate to the minima! expected adverse impact of gravel
placement." Doc. 239 at 33:2-3. This argument is not expanded
upon nor do plaintiffs cite law explaining what they mean, i.e.,
whether the increased flows only address the incidental take or
the overall Trinity River restoration objective.
140
they may improve sedimentation, the other problem identified in
the incidental take statement. On matters of scientific
expertise courts should defer to the agency’s expertise. Marsh,
490 U.S. at 377 ("Because analysis of the relevant documents
’requires a high level of technical expertise,’ we must defer to
’the informed discretion of the responsible federal agencies.’")
(quoting Kleppe v. Sierra Club, 427 U.S. 390, 412 (1976)). NMFS’s
opinion is entitled to deference as to take resulting from gravel
displacement.
c. Requiring Flow Increases as an RPM
Plaintiffs object that the NMFS exceeded its authority by
requiring, as an RPM, that the Preferred Alternatives’ flows be
implemented.48 The purpose of consulting with the NMFS was to
comply with Section 7 of the ESA which requires agencies to, "in
consultation with and with the assistance of the Secretary,
insure that any action authorized, funded, or carried out by such
agency 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 to be critical, unless such agency has
been granted an exemption ...." 16 U.S.C. § 1536(a) (2).
The disputed action is the implementation of the Preferred
48 The first RPM in the NMFS incidental take statement
requires Interior to "[i]mplement the f!ow regimes included in
the proposed action (as described in TRMFR DEIS, page 2-19, Table
2-5) as soon as possible." AR 17492.
141
Alternative. Essentially what NMFS did was require that the
Preferred Alternative be implemented to minimize the effects of
implementing the Preferred Alternative. This is not a permitted
function of a RPM. Incidental take statements are intended to
determine if an agency’s actions will jeopardize a listed species.
The purpose of an RPM is not to require that an agency take the
very action upon which consultation has been initiated.
Moreover, the evidence in the record shows the Preferred
Alternative was not necessary to mitigate the incidental take,
which did not require all the flow volumes or rehabilitation
measures it recommends.
By requiring the Preferred Alternative be implemented to
minimize the effects of implementing the Preferred Alternative,
the NMFS exceeded its statutory authority. That increased flows
and channel rehabilitation may mitigate the effects of the
preferred alternative is circular. Even if the evidence does not
support a finding that recommended habitat improvement will be
lethal to juvenile coho salmon, the AR does find evidence of
harassment which qualifies as take. Although this is not a
ground on which to invalidate the disputed RPM, no deference is
owed to NMFS’s RPM that the Preferred Alternative be implemented.
Plaintiffs’ motion for summary adjudication to set aside the RPM
in the NMFS BioOp requiring implementation of the Preferred
Alternative’s flows is GRANTED. The federal defendants’ motion on
the same issue is DENIED.
142
D.ADMINISTRATIVE PROCEDURES ACT
Section 706 of the Administrative Procedures Act ("APA")
directs courts to "hold unlawful and set aside agency action,
findings, and conclusions found to be arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law." 5 U.S.C. § 706(2); Ninilchik Traditional
Council v. United States, 227 F.3d 1186, 1193 (9th Cir. 2000).
This standard is deferential and is intended to ’~ensure that the
agency considered all of the relevant factors and that its
decision contained no ~clear error of judgment.’" Pacific Coast
Fedh of Fishermen’s Ass’n, Inc. v. Nat~ Marine Fisheries Serv.,
265 F.3d 1028, 1034 (9th Cir 2001) (quoting Arizona v. Thomas,
824 F.2d 745, 748 (9th Cir. 1987)). ~Agency action should be
overturned only when the agency has ’relied on factors which
Congress has not intended it to consider, entirely failed to
consider an important aspect of the problem, offered an
explanation for its decision 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.’" Id. (quoting Motor Vehicle Mfrs. Ass’n v. State Farm
Mutual Auto. Ins. Co., 463 U.S. 29, 43 (1983)). Judicial review
must be "’searching and careful’ but remains narrow as we are not
to substitute our judgment for that of the agency’s.’" Ninilchik,
227 F.3d at 1194 (quoting Citizens to Preserve Overton Park, Inc.
v. Volpe, 401 U.S. 402, 416 (1971)). "Deference to an agency’s
technical expertise and experience is particularly warranted with
143
respect to questions involving engineering and scientific
matters." United States v. Alpine Land & Reservoir Co., 887 F.2d
207, 213 (9th Cir. 1989); Ninilchik, 227 F.3d at 1194.
Plaintiffs argue that Interior’s decision to adopt the ROD
was arbitrary and capricious because it locked in permanent
instream flows for the Trinity River although the science upon
which those flows were based is uncertain. They advance two
primary contentions: i) that the flows were impermissibly
selected from an unnecessarily high range; and, 2) that the
science underlying the decision was inherently uncertain because
the ROD’s analysis acknowledges that future effects cannot be
determined and will require further study and response.
I. Selection of Flow Amounts Within a Range
The flow study ranges, which are variable by five water year
types, ranging from critically dry to extremely wet, derived from
a scientifically conducted study designed to ascertain what
annual instream flow levels were likely to achieve Trinity River
fishery restoration. That science could not pinpoint the exact
minimum amount necessary, year by year, under constantly changing
hydrologic conditions, does not make Interior’s decision per se
arbitrary and capricious. Courts are particularly deferential in
scientific matters where the agency has expertise. Ninilchik,
227 F.3d at 1194. Interior’s approach locks in permanent flows at
a minimum annual flow level, without analysis of variable flows
that utilize all available restorative means and without
144
considering secondary CVP interests. The statute requires a
permanent Trinity river restoration to approximate pre-TRD
conditions. This is not a subject suited for second-guessing.
However, Interior’s choice of flow levels did not include a level
of analysis that considered non-flow measures or secondary
statutory objectives.
2. Uncertainty of the Underlying Science
Plaintiffs argue that the Secretary’s decision was arbitrary
and capricious because it locked in permanent fixed amounts of
water that are to be released in each water year type, even
though the science that purports to measure the necessity of
those amounts was not certain.49 Plaintiffs contend Appendices N
and O to the TRFEFR show that the ROD is a "major experiment in
fluvial geomorphology." Doc. 233 at 39:2 (SMUD Motion).
Appendix N describes the Adaptive Environmental Assessment
and Management ("AEAM") program. It recognizes that ’~alluvial
river systems are complex and dynamic. There are not many
unambiguous clear-cut answers to complex hydraulic, channel-
structure, and water quality changes " and that ’Jthe
information we base our decisions on is almost always incomplete."
49 The federa! defendants argue that the amounts are not
"fixed" because they vary based on the type of water year. This
is a red herring. The instream minimum f!ow increases required
by the ROD are permanent. The fact that the amount varies based
on water year type does not change this; i.e., in a norma! water
year the permanent increase is approximately 300,000 AF over the
statutory 340,000 AF minimum and 475,000 AF more in an extremely
wet year.
145
TRFEFR at N-2. Appendix 0 discusses the hypotheses used,
potential competing hypotheses, management objectives, what is
known specifically about the Trinity River, and the major unknown
or unquantified issues that needed to be addressed. Id. at 0-2.
An agency decision is not arbitrary or capricious because the
agency recognizes the limitations of the information upon which
it bases a decision. The fact that Interior has acknowledged it
will learn new facts in the future, that river flow management is
dynamic, and climatic conditions, upon which CVP water supply
depend, uncertain, are indicative of a reflective decisionmaking
process, not arbitrariness.
The requirements of the 1984 Act and the CVPIA do not change
this. They mandate restoration of the Trinity River to
approximate pre-Trinity River Division fish and wildlife levels.
The TRFES addresses a portion of the 1984 Act’s broader
objectives along with the specific objectives of the CVPIA.
CVPIA section 3406(b) (23) directs Interior to complete the TRFES
by 1996 ’~in a manner which insures the development of
recommendations, based on the best available scientific data,
regarding permanent instream fishery flow requirements and the
Trinity River Division operating criteria and procedures for the
restoration and maintenance of the Trinity River fishery."
(emphasis added). The CVPIA requires that the "best available
scientific data" be used, not that Interior establish with
scientific certainty the exact minimum amount of water
permanently needed each year for enhanced instream fishery flows
146
that will restore Trinity River Basin to pre-TRD conditions. The
TRFEFR acknowledges that the best available scientific data is
not exact. This does not make Interior’s decision arbitrary and
capricious.5° To the contrary, the certainty Plaintiffs’ seek
could prevent the mandated statutory goal of flow restoration
from ever being implemented.
s0 SMUD argues that the failure to set concrete goals
results in the ROD being arbitrary and capricious. The ROD’s
goals are stated. It is not clear how the alleged failure to
more precisely define such goals makes the decision arbitrary and
capricious. The ROD here determines the flow levels reasonably
required for river and fishery restoration, based on the best
scientific data now available. The possibility that new data in
the future may prove the Secretary’s decision wrong, does not
make arbitrary and capricious the current decision which utilizes
current known scientific data. Nor does the law prevent Interior
from making a decision that is unwise or even mistaken.
147
Plaintiffs next argue that although it may be possible that
a flow recommendation can be implemented "without precisely
knowing what flows will, in fact, achieve what degree of
morphological change ....the decision to cast such numbers in
stone despite the high degree of uncertainty surrounding them and
the explicit need for an extensive and detailed adaptive
management plan to cover a huge array of contingent unknowns is
arbitrary and capricious." Doc. 233 at 39:12-16. Instead,
plaintiffs propose that the flows proceed ~on a yearly basis to
posit necessary flows, test these in accordance with the adaptive
management plan and make necessary yearly adjustments." Doc. 286
at 13:8-10. They argue that Section (b) (23) does not require the
Secretary to actually implement the permanent instream flows.
Section (b) (23) has two subsections. The first mandates
that the TRFES be completed and that it make recommendations
regarding permanent instream flows,sl The secondmandates that
the recommendations be forwarded to Congress no later than
December 31, 1996 and that if the Secretary and the Hoopa Valley
~ In setting out Section (b) (23) in its reply brief, SMUD
seizes upon the term "regarding: .... [B]y September 30, 1996, the
Secretary shall complete the Trinity River F!ow Evaluation
Study in a manner which ensures the deve!opment of
recommendations, based on the best available scientific data,
regarding permanent instream fishery f!ow requirements .... ’~
Doc. 286 at 3-6. SMUD’.s emphasis is unclear. Presumably it
means that Interior could have recommended no mermanent instream
flows, and instead continue to study restoration indefinitely
with variable flows adjusted each year based upon new
information. This is inconsistent with the statute’s use of the
term "permanent."
148
Tribe concur, that those recommendations be implemented. The
term ~permanent" in the first section combined with the mandate
that the recommendations actually be implemented upon the
occurrence of finite events, forecloses plaintiffs’
interpretation. Plaintiffs proposal that the instream flows for
the Trinity River continue to be studied on a yearly basis and be
changed, annually, based upon new information in perpetuity
derogates the statute’s use of the term ~’permanent." "Permanent"
is defined as "existing perpetually; everlasting, especially
without significant change" and "intended to exist or function for
a long, indefinite period without regard to unforeseeable
conditions." Random House Webster’s, Unabridged Dictionary 1442
(1998). That the term "permanent" encompasses a variable flow
regime, based on annual hydrological conditions, as pertains to
Interior’s actual management of annual CVP water allocations, is
not necessarily inconsistent with the definition of "permanent."
The law mandates that the Trinity River and fishery must now
be restored with CVP water flows. Congress has required that
Trinity River water be the source of the restoration. It has not
provided a replacement source of that water for the CVP. That
such restoration will likely create CVP water shortages that will
deprive other CVP users has not been addressed by Congress,
except for general reference in the CVPIA to balance needs of
other CVP water users. §3402(f). Ultimately, Interior annually
uses complex quantitative water management methods to accommodate
the large number of variables it faces in annually allocating CVP
149
water among environmental, municipal, industrial, agricultural,
and power generating uses. The flow levels selected are not
arbitrary or capricious as a matter of law; however, they were
not selected from a reasonable range of alternatives.
Plaintiff~s motion for summary judgment based on the
arbitrariness, capriciousness, or unlawfulness of the recommended
flows in the ROD is DENIED. The federal defendants’ and the Hoopa
Valley Tribe’s motions on the same issue are provisionally
GRANTED, subject to an SEIS which takes a hard look at a flow
restoration plan which considers non-flow and secondary statutory
objectives.
E.REMEDY
Defendants argue that if NEPA violations are found, the
court should exercise its judicial and equitable discretion and
allow the ROD to be implemented or at least allow the non-flow
measures of the ROD to continue as they have under the
preliminary injunctions. Plaintiffs argue that the ROD should be
set aside in accordance with Section 706 ~of the APA.
APA Section 706 provides: "It]he reviewing court shall
hold unlawful and set aside agency action, findings, and
conclusions found to be arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law." 5 U.S.C. §
706. Despite the mandatory language, ~shall," courts retain
equitable discretion to fashion appropriate remedies when there
has been a violation of NEPA. See Amoco Production Co. v.
150
Village of Gambell, Alaska, 480 U.S. 531, 541-45 (1987); Nat~
Parks & Conservation Assh v. Babbitt, 241 F.3d 722, 737 (gth Cir.
2ool).
To determine whether injunctive relief is appropriate, the
traditional balance of harms analysis is applied. Nat~ Parks &
Conservation, 241 F.3d at 737. The court should consider whether
there will be irreparable injury and whether there are other
adequate legal remedies. Weinberger v. Romero-Barcelo, 456 U.S.
305, 312 (1982). However, [e]nvironmental injury, by its nature,
can seldom be adequately remedied by money damages and is often
permanent or at least of long duration, i.e., irreparable."
Amoco, 480 U.S. at 545. ’~hen the ’proposed project may
significantly degrade some human environmental factor,’ injunctive
relief is appropriate." Nat~ Parks & Conservation, 241 F.3d at
737 (quoting Alaska Wilderness Recreation & Tourism Assoc. v.
Morrison, 67 F.3d 723, 732 (gth Cir. 1995).
A violation of NEPA is an environmental harm. Sierra Club
v. Marsh, 872 F.2d 497, 500-04 (ist Cir. 1989) ("Congress, in
enacting NEPA, explicitly took note of one way in which
governments can harm the environment (through inadequately
informed decisionmaking);courts should take account of
this harm and its potentially ’irreparable’ nature."). "[T]he harm
at stake in a NEPA violation is a harm to the environment, not
merely to a legalistic ’procedure,’ nor, for that matter, merely
to psychological well-being ....[T]he risk implied by a
violation of NEPA is that real environmental harm will occur
151
through inadequate foresight and deliberation." Id. at 504
(emphasis in original).
The current dispute is unusual in that environmental
concerns are on both sides of the balance of hardships. On one
side, the federal defendants, in seeking to restore the Trinity
River fishery, failed: 1) to adequately analyze the impact of
likely major CVP reoperation associated with the X2 standard on
the Sacramento River and Delta ESA-listed species; 2) to consider
the impacts of Trinity Dam outlet bypass on Northern California
hydroelectric power supply and reliability; 3) to adequately
analyze the Preferred Alternative’s ability to impact on Northern
California hydroelectric power supply; and, 4) to fully consider
an Integrated Management Alternative. NEPA’s purpose is to ensure
decisions made by federal agencies include such analysis to
reduce the likelihood a bad decision is made. On the other hand,
restoration of the Trinity River fishery, and the ESA-listed
species that inhabit it, are to remedy real and continuing
environmental harm, and are unlawfully long overdue. The chronic
delays by Interior in discharging its express statutory duties in
managing the CVP, and its riverine components, have unjustifiably
thwarted these Congressional objectives. See generally,
Firebaugh Canal Co. v. United States, 201 F.3d 568, 577-78 (9th
Cir. 2000).
Contrary to Plaintiffs’ assertion of irrelevancy, the
government is also in breach of its general and specific
(§ 3406(b) (23)) independent federal trust obligation to the Hoopa
152
and Yurok Tribes. Congress mandated that restoration of the
Trinity River begin no later than 1996, in part to discharge the
federal government’s trust responsibility to the Tribes, a
deadline six years past. In addition to harm caused by delay,
’~[T]he harm at stake is a harm to the environment, but the harm
consists of the added risk to the environment that takes place
when governmental decisionmakers make up their minds without
having before them an analysis (with proper public comment) of
the likely effects of their decision upon the environment."
Sierra Club, 872 F.2d at 500 (emphasis in original). The balance
of equities favors continuing to restore the Trinity River
fishery.
Congress here provided a failsafe mechanism of a minimum
flow regime. The undisputed evidence establishes that the
340,000 AF annual flows are not sufficient in all types of water
years to restore the Trinity River fishery. To further delay
implementation of (b) (23) for another indefinite period of time
while Interior ~tries to get it right" is an inadequate remedy
which will result in irreparable injury.
Considering the totality of all factors, the balance of
hardships weighs heavily against enjoining the non-flow measures
in the ROD and the implementation of the ROD’s critically dry and
dry year f!ows,s2 in view of expert testimony that less than
~2 At oral argument the federal defendants stated that the
NMFS’ incidental take statement is only valid if the flows are
implemented.
153
368,000 AF of annual flows actually jeopardizes the Trinity River
fishery. Despite all the Plaintiffs’ legitimate concerns,
Congress has mandated the Trinity River and its fishery must be
restored without further delay. This overriding mandate comes
from Congress and it is to Congress Plaintiffs must address their
concerns about any unfairness in the reallocation of the Trinity
River flows to the Trinity River Basin and away from other CVP
uses. It is unacceptable that Interior’s failures be the catalyst
to impose harm on all the competing interests. Such
prioritization of federal water use for the Trinity River is the
province of the executive and legislature, not the judiciary.
After full analysis, it is likely that the infirmities in
the environmental scoping and review processes can be cured by an
SEIS. The Sacramento River and Delta ESA-listed species are not
harmed by immediately implementing the ROD’s non-flow measures and
permitting use of critically dry and dry year flows provided by
the ROD. Any harm to the NEPA decisionmaking process by allowing
these measures to go forward is overwhelmingly offset by the
benefit to the Trinity River fishery and need to discharge the
federal trust obligation owed to the Indian Tribes.
However, the balance of the hardships does favor enjoining
the implementation of the ROD’s permanent recommended flows above
the 452,600 AF level, pending full compliance with NEPA and the
ESA. There are ESA-listed species on both sides of the balance
and other impacts on CVP water users which have not been properly
154
subjected to a "hard look." NEPA’s purpose is to prevent the
agency from making a decision that it will later regret. The
bureaucratic tendency to chose an option simply because it has
already been implemented is a harm to the environment that is
real. Congress has set the minimum release of 340,000 AF/year of
water as a fail-safe to prevent further degradation of the
Trinity River pending Interior’s lawful completion of scientific
study of the issues. Congress’ finding deserves deference.~3 The
~z Plaintiffs argue that Section (b) (23) "forec!oses" the
exercise of equitable discretion without lawfu! concurrence based
on the section’s provision that "[i]f the Hoopa Valley Tribe and
the Secretary do not concur, the minimum Trinity River instream
fishery releases shall remain in effect unless increased by
an Act of Congress, appropriate judicial decree, or agreement
between the Secretary and the Hoopa Valley Tribe." While
Congress may control the exercise of a court’s discretion, the
congressiona! mandate must be fairly explicit. Weinberger v.
Romero-Barcelo, 456 U.S. 305, 313 (1982); Amoco, 480 U.S. at 542.
~Congress may intervene and guide or contro! the exercise of the
courts’ discretion, but we do not lightly assume that Congress
has intended to depart from established principles." Romero-
Barcelo, 456 U.S. at 313.
IT]he comprehensiveness of this equitable discretion is
not to be denied or limited in the absence of a clear
and valid legislative command. Unless a statute in so
many words, or by a necessary and inescapable
inference, restricts the court’s jurisdiction in
equity, the full scope of that jurisdiction is to be
recognized and applied. The great principles of
equity, securing complete justice, should no< be
yielded to light, inferences, or doubtful construction.
Id. (quoting Porter v. Warner Holding Co., 328 U.S. 395, 398
(1946)).
Given the purpose of Section (b) (23) is to restore the
Trinity River fishery and to meet the federal government’s trust
obligations to the Hoopa Valley Tribe, and the fact that Section
(b) (23) states that 340,000 AF is the "minimum" instream fishery
f!ows required under the statute, the fair inference is that
-155-
court has no inclination to, nor should it, substitute its
judgment to decide the permanent increase in the amount of CVP
water that should flow into the Trinity River.54 This would
result in judicial micro-management of the Trinity River
restoration. The restoration decision was made by Congress, to
be implemented by Interior, not the Court.5~
Congress has expressed its unequivocal concern in the 1984
and 1996 Acts, as implemented by CVPIA § 3406(b) (23), is about
fulfilling the federal government’s trust obligation to the Indian
Tribes. The federal defendants’ failure to meet the deadlines set
out by Congress in the CVPiA defeats this purpose. Continued
delay only exacerbates the harm. In completing an SEIS the
Congress meant to limit the court’s discretion in lowering the
amount of water dedicated to instream fishery f!ows be!ow 340,000
AF. There is no ~’necessary and inescapable inference" that
Section (b) (23) limits the court’S discretion to craft equitable
relief in excess of tha< amount. However, Congress’ findings do
provide guidance.
s~ The Hoopa Valley Tribe argues, relying on various
declarations, that the minimum amount of water necessary is
368,600 AF. This opinion draws upon hydrology, geomorpho!ogy,
and eco!ogy. A court cannot usurp the province of the executive.
Congress determined that the minimum amount necessary is 340,000
AF/year. That minimum flow must be provided to the Trinity
River.
=~ The Hoopa Valley Tribe also argues uh~ preliminary
injunction decisions found that certain flow releases under the
ROD have been demonstrated to impose no harm on plaintiffs. That
is not the finding of those decisions. The preliminary
injunction decisions balanced current hardships and determined
certain annual water releases were jus<ified under the totality
of circumstances premised on then-existing hydrological
conditions.
-156-
federal defendants must expedite their review and conclude the
process within one hundred twenty (120) days following this
decision. The federal defendants have studied the Trinity River
restoration issue for over twenty years. The process must now be
immediately completed in compliance with federal law.
IV. CONCLUSION
When the EIS scoping to define the purpose for the TRFES
began, the Tribes participated and their lawyer stood by while
the County of Trinity persuaded the EIS management team to
unfairly and unlawfully narrow the purpose and scope of the EIS.
Such action seeking to limit informed decision-making for the
sale of expediency, has no place in the NEPA process which
invests government lawyers and representatives with the legal
responsibility to carry out NEPA’s public objectives to ensure
that a hard look is taken at all reasonable alternatives to
proposed major federal action, which will have undeniable
consequences, to enable the Agency to make an informed decision
with informed public participation. Here, an intentional
subversion of NEPA’s requirements prevented full and fair
consideration of significant impacts which will be caused by CVP
reoperations. A reasonable Integrated Management alternative,
which would utilize non-flow measures and seek to minimize
impacts on all other CVP interests, while achieving the statutory
goal of Trinity River fishery and basin restoration, was not
fairly considered. Inadequate consideration was given to power
-157-
supply and reliability impacts in a changing hydropower
environment. The public had no participation in any NEPA process
leading to the ROD, after the DEIS public comment period closed.
BioOp RPMs for salinity control and temperature regulation that
constitute major action were improperly adopted.
Abrogation of the full and free investigation and
consideration of all reasonable alternatives has resulted in an
administrative record that severely limits the Court’s ability to
conduct a fully informed analysis of all the merits of Plaintiffs’
NEPA claims. Specifically, that significant CVP re-operation
adverse impacts were not considered; an Integrated Management
Alternative was not properly considered or fairly analyzed; and
that the Preferred Alternative ignores the best available
science. Some of the NEPA procedures followed impaired, rather
than advanced, public participation and informed decision-making.
They also caused substantial post-ROD and extra-record
information to be submitted as a direct result of the
inappropriately narrow scope of the EIS. The defenders of the
EIS and ROD contend plaintiffs did not timely present
information, although the narrow definition of the EIS’s purpose
was the ultimate excuse for Interior not performing the analysis.
They now criticize the Hanson opinions as bad science, yet there
was no public discussion or NEPA review of such management
measures, because the flow recommendations were made without
benefit of Dr. Hanson’s scientific calculations and measures to
achieve secondary objectives. The agencies and EIS management
-158-
team intentionally narrowed the EIS purposes to "ecological" and
"flow-driven" objectives which avoided addressing, and foreclosed
public participation, on any alternative that sought to utilize
non-flow measures to minimize species and other CVP-wide adverse
impacts without compromising the Trinity River fishery and basin
restoration.
Although Interior cannot be forced to adopt an Integrated
Management alternative, such a reasonable alternative was
entitled to a hard look on its merits. There is no explanation
for the failures of the NEPA process that occurred in this case,
except that public participation had been concluded when the hard
questions were raised and dismissed by Interior as insignificant.
The NEPA process must be lawfully completed by a supplemental
EIS.
ORDERS
The Hoopa Valley Tribe’s motion for summary judgment on the
issue of NEPA’s applicability to this case as irreconcilably
inconsistent with § 3406(b) (13) and related statutes is DENIED.
Plaintiffs’ motion for summary adjudication on the issue of
the federal defendants’ failure to comply with NEPA based on
inadequate assessment of impacts of the Preferred Alternative on
Sacramento River and Delta ESA-listed species which will be
caused by CVP reoperation is GRANTED.
Plaintiffs’ motion for summary judgment on the issue of the
federal defendants’ failure to comply with NEPA based on a lack of
analysis of the Lewiston Dam alternate bypass RPM is GRANTED.
-159-
Opposing motions on the same issue are DENIED.
Plaintiffs’ motion for summary adjudication on the issue of
the federal defendants’ failure to comply with NEPA in their
analysis of the X2 RPM is GRANTED. The federal defendants’ motion
on the same issue is DENIED.
Plaintiffs’ motion for summary judgment on the issue of
federal defendants’ failure to comply with NEPA based on analysis
of the Preferred Alternative’s effect on power system reliability
is GRANTED. The federal defendants’ motion on the same issue is
DENIED.
Plaintiffs’ motion for summary judgment on the issue of
federal defendants’ failure to comply with NEPA based on the
timing of the EIS is GRANTED IN PART.
Plaintiffs’ motion for summary judgment on the issue of the
federal defendants’ failure to comply with NEPA based on the range
of alternatives considered is GRANTED.
Plaintiffs’ motion to set aside the X2 RPM in the USFWS BioOp
as major action is GRANTED. The federal defendants’ motion on the
same issue is DENIED. Plaintiffs’ motion to set aside the the
NMFS BioOp RPM requiring immediate implementation of the
Preferred Alternative is GRANTED. Federal defendants’ motion on
the same issue is DENIED. Plaintiffs’ motion to set as~ide the
NMFS Bioop because it failed to identify lethal harm to species
is DENIED. Federal defendants’ motion on the same issue is
GRANTED.
Plaintiffs’ motion to set aside the ROD because it is
-160-
arbitrary and capricious is DENIED.
Having balanced the hardships, and to avoid irreparable
injury, implementation of ROD flows in years except dry or
critically dry years, not to exceed 452,600 AF, is ENJOINED until
the federal defendants complete an SEIS in compliance with NEPA
and this decision.
All non-flow measures prescribed by the ROD shall proceed
and plaintiffs’ request for an injunction against such ROD
measures is DENIED.
The federal government has a trust obligation to the Hoopa
and Yurok Indian Tribes and Congress expressed its intent this
obligation be finally fulfilled more than four years ago. The
federal defendants must proceed immediately to complete the NEPA
process. The court retains jurisdiction over this controversy to
enforce the orders prescribed. The federal defendants shall
complete the SEIS on the issued designated within one hundred
twenty (120) days following date of service of this decision.
SO ORDERED.
DATED: December 9, 2002.
Oliver W. Wanger
UNITED STATES DISTRICT JUDGE
-161-
~?:~’~ RPR B4, 2~!~,B_~ !D: U.S. DISTRTC’T COURT TEL HO:@763P~6 PRGE: E/~S
4
6
7
9
11
!5
16
17
i9
20
21
22
24
25
26
27
LTN~TED STATES DISTRICT COURT
EASTERIWDISTRICT OE CALIEORNIA
,~STLANDS WATER DISTRICT, SAN
S & DELTA-MENDOTA WATER
~JTEORITY, and SAN BENITO COUNTY
’AT~R DISTI%ICT,
Plaintiffs,
SACRAMENTO ~K!NICXPAL L~ILITY
DISTRICT,
Pl~intiff-lntervenor,
~RTHERN CALIFORNIA POWER
SOCIATION,
Pl~intiff-intervenor
v.
~iTED STATES DEPARTMENT OF THE
INTE~ZIOR, ET AL,
Defendantsr
{OOPA VALLEY Tribe,
Defendant-Intervenor,
.qiROK Tr±be,
Defend~nt-lntervenor.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
CIY F 00-7124 O~W DLB
MEMORANDUM DECISION AND
ORDER RE: FEDERAL
DEFENDANT’S MOTION TO
MODIFY iNJUNCTION RE:
SUPPLEMENTAL EIS; DEFENDANT
HOOPA VAInlY TRIBE’S MOTION
FOR PARTIAL STAY PENDING
APPEAL AND FOR MODIFICATION
OF i~JUNCTiVE RELIEF
Before the court is fede~&l defen ~d~nts’ Motion to Modify
1
2
3
4
5
6
7
9
I0
12
13
19
2o
22
23
24
26
27
ljunction Re: S~pplement~1 EIS, that requests a deadline
chension until J~ly, 2004, ±n order to cor~p, lete the reqs/ired
ippl~mental environmental ±rap. act statement (~SEIS"). Also
efore the court are-defendant Hoopa Valley Tribers Motion to
t~y Part~ of the December I0, 2002 Decision, (Doc. 305) pending
ppeal, and their Motion for Modification of Injunctive Relief.
he Eoopa Valley Tribe r~<fmests modification of the current
njunction, to allow flow voltumes co~mnensurate with the
appropriate" w~ter year type (i.e. normal, wet, or wette~ water
ear) as designated in the invalidated ROD.~
Plaintiffs San Luis and Delta-Mendota Water Authority and
Westlands Water District (npl~uintiffs~) do not oppose federal
defendantsr ~otion to extend the SE2B deadline to July, 2004.
~!alntiffs object to any i~plied reconsideration request by
federal defencLga~ts. Plaintiff ~orthern Californi~ Power A~ency.
JNCPA) submits a conditional non-opposition to federil
defendants" re.~aest for more time. NCPA conditions its non-
~ppositlon on the ~contlnued enforcement of the injunction
imiting interim releases to the Trinity. River of 453,000
/cre--feet pe~ year." Doc. 35~ at 1:21-23.
Plaintiff-intervenor Sacrmmento ~unicipal Utility District
(SMUD) opposes the Tribe’s stay r~otion~ but does not oppose the
Tribe’s request to mocLify the injunction to ~liow for flows in
I003 ~hich a~e commensurate with the water-year ~003 designation.
S~UD requests continuing court review of flow releases scheduled
lh As time, conditions in the Trinity ~iver north of1ofthis
~ e Sacramento-San Joaquin Delta are normal, a~d below normal
~o~th of the Delta.
2
~:~8 @~R 84~ ~ ID: U.S. DISTRICT COUR~T TEl_
1
2
4
5
6
7
9
I0
II
14
16
17
~to determine ~pp_~opr!~te interim flow levels pendinqi~ 2004,.
completion of the SEIS and issu~uace of ~ new ROD. " Plaintiff-
~tervenox NCPA opposes the Tribe’s motions. P!&int±ffs oppose
e Tribe’s motions. The federal defendants t~ke no position on
Tribe’s motion. Long ~ftex the opposition deadline passed
motion, the Yurok Tribe submitted a ~Notice of Non-this
~position" to the Eoopm Valley Tribe’s motion. Doc. 370, filed
20, 2003.
The motions were heard ~e~ruary 24, 2003. Additional time
granted ~he parties to address ev~_dentiary, disputes raised ~t
he~ring ~/%d to respond to the Court’s inquiry m bout wh~t
were necessmmy to prevent a recurrence of fish die-off thmt
occur_ed in the 2002 water year.
Z. FACTUAL AND PROCEDU~L BACKGROUND
This suit involves the United States Department of
Interior’s (~nterior") &dmin±str~tion of the Trinity River
19
2O
2~
22
23
24
25
26
27
28
D~ivision (’~TPdD,,)~ of the Centra! Valley Project ("C~P") and
Interior’s i~plementz~$on of Sect_ion 3406(b)(23)~ of the Ce_nt~ml
The TRD consists of: the Tr&nihy an~ Lewiston dams ~nd their
eservod_rs ; Trinity ~ Lewishon powerpl~-nts ; Cleax Cree~ tunnel ;
~ge Era!~CiS C~rr powerhouse; Whiskeytow~ cLmm e/%d l~ke; Spring
Creek t11nnel ~nd powe.~pl~nh; Spring creek debris d~ ~nd reservoir;
~nd re!ated pumping ~nd distr~_bution facilities.
The Secretary, imzaedi~tely u.Don the e_nactmenh of this
but not !~hed to ~e Fe~! En~gered Species Act,
U.S.C. ~ 15BI, et seq., ~d ~i de~sions
C~ifo~a S~te Water Reso~ces Control
!7 : 39
1
2
4
9
21
22
establishing conditions on applicable licenses and
permits for the project. The Secretary, in consultation
w&th other State anl Eeder~l &~e/icies, In~ien Tribes, and
affected interests, is fLlrther authorized 3_nd directed
to :
(2B) in order to meet Federal tam/st responsibil&ties to
protect the fishery resources o£ the Hoop& Valley Tribe,
and to meet the fishery restoration goals of the Act of
October 24, 1984, Public Law 98-541, provide through the
~rinity River Division, for w~her years 1992 through
1996, an ±nstre2u~ release of w~ter to the Trln±ty ~iver
of ~ot !ess th~n three hundred ~nd forty thousand acre-
feet pe~ year for the purposes of fishery_ restoration,
propagation, ~nd ~u~intenance
(A) by Sepheraber 30, i£96, the Secretary, ~f~er
consultation with the Eoopa V~lley Tribe, sh~ll cor~p.!ete
the Tr%nity Privet Flow Evaluation Study c~renhly being
~r ~e ~te of ~e Secre~&~ Decks&on of ~u~f
14, $981, in s ~n~ ~ch ~s~es the ~el~t of
reception, b~ed on the best m~l~le scien~f$c
r~ir~ts ~d Tri~ ~v~ Divis~o£ @~g
~iter%a ~d procedures for ~e restoration ~d
~&nte~ce of the ~rinity ~ver fishe~; ~d
(B) not later than Decealber ~i, 1996, the Secrete/y. sh~ll
forward the recommendations of the Triruity River Flow
~.v-~luation St~/dy, referred ho in ~agl-~ph {A) of ~s
p~a~ph, to ~e C~t~e on En~ ~d Nzt~
~so~s ~d ~e S~!ect C~ttee on in~ ~fairs of
the Sen&re ~d the Co--tree on Xnt~ior ~d Insul~
~f~s ~d ~e co--tree on ~rc~t ~ine ~d
~isheries of the ~ouse of Represen~tives. ~f ~e
Secret~ ~d the Hoopa V~ley Tr~e con~ in ~ese
reco~en~t!ons, ~y incre~e to the ~n~ Trinity
~v~ &ns~e~ fish~ re!eases es~lished un~ t~s
p~a~aph ~d the operating crit~ia ~d proced~es
do not conch, ~e ~n~ Tr&ni~y Riv~ ins~e~ fishe~
releases est~lished ~d~ t~s p~&~@h sh~l r~n
effect ~less incre~ed by ~ Act of Confess,
appropriate j udci~ decree, or agre~ent between ~he
4
5
6
7
12
13
14
16
2O
22
23
24
26
27
28
u~:41am I- i o~i-
A!~R 84, Z0~3 !D: U.S. DISTRICT COURT TEL NO: 498T~
~iey Project I~p. forewent Act ("CVPIA")ra to restore and
nt~in the Trinity~ I~iver fishery.
I I n October 1984r. Congress enacted the Trinity ~iver B~sin
ish and Wildlife Man~eme/%t Act~ ("1984 Act") to restore fish
secretary ~_nd the Hoop~ v~lle_v Tribe. Costs ~ssoci~t~d
re~urs~le ~ op~tion ~d ~int~ce
Central V~l!e~ Project Irgp. roven~_nt Act, Pu~. L. No. i02-57~ ~
~406(b) (2B), 106 St~t. 4600, ~t 4720-2!.
~ ~. L. No. 102-57~, ~ ~401-l~ I06 S~t. 4600~4706 (Oct.
0, zss2).
SECTION l: The Congress finds that --
(I) the construction of the Trinity River d~vis±on of
~he Act of A~g~st 1~, 19S~ (6S St~t. 719), has
s~bstantially reduced the st~ea~f!ow in the Trinity River
B~sin thereby contributing to damage to pools, spawnin9
the an~ciromous flshpopulzt~ons a~ a decline in the
scenic ~nd recreational qu~litles of such river system;
(2) the loss of i~nd ~re~ i~%Lnd~te~ by two reservoirs
constructed in corunection with such project has
contributed to reductions in the populations of deer
other wildlife historically found in the Trinity F~iver
Bas in ;
(S) the Act ref~rre~ to in paragraph (i) of this section
cLirected the Secretary. of the Interior (herein~ter in
th&s Act regerred to as the "Secret~r~") to t~ke
approprimte actions to ensue the preservation and
propmg-~tion of snch fish ~d ~i!d~ife and additional
authority" was conferred on the Secrehz~-y under the Act
approved September 4~ 1980 (gg St~t. I0~2), to t~ke
certain actions to mitigate the impact on fish
~ildlife of the constr~ction ~u~d operation of the Trinity
River division;
(4) ~chivities other th~n those related ho the project
including, but not lira~ted to, inadequate erosion control
popul~tions in the Trini~_¢ River Basi~ endure of such
nature that the e~use of ~y detrimental ~p~ ct on such
±
3
4
5
6
7
9
10
12
13
14
15
16
17
15
19
21
ncluded ~ f~_nding ~=t- the TRD had contributed to ~ ’~drastic
:eduction in the ~n~dro~ous fish popul~tions.’r 2~b!ic Law 98-
i41, Section l(!). It directed that the restoration program
populat±ons cannot be attributed solel~ to such
activities or to the projech;
(5) a fish ~nd ~ild!ife E~/la~ement program has been
developed by an ex.isting ~nte~gency ~dvisory grotTp
c~lled the Trinity River Basin Fish and Wildlife
Force;
(S) the Secret~_~y requires additional authority to
ir~plement ~ b~in-~ide fish ~nd wildlife
program in order to achieve ~e long-t~ go~ of
restoring fish ~d wil~ife pop~t~ons in ~e Trinit~
~v~ B~in to a level approx~t~ng ~at whi~ e~shed
~ately ~fore the s~t of the cons~chion of the
Trinity Riv~
TRINITY RIVER BASIN F!SH AND WILDLIFE MANAGEMENT PROGRAM
SEC. 2. (~) Subject to sttbsect±on (b), the Sec~et~r~."
shall for~late and imp!~ment a fish ~d wil~ife
~g~nt pro~ for ~e Trinity ~ver B~ desired
to restore ~e fish ~d wil~ife popul~tions in ~ch
b~in to ~e levels ~prox~t~g those ~hich ~xisted
~ately before the st~ of ~e cons~ction refuted
to in section 1 (I) ~d to ~n~n su~ levels.The
pro~ sh~! incl~ ~e follow~g ~cti~ties:
(!) The desi~, cons~ction, operation,
of f~cilities ~ --
(A) r~h~ili~te fish h~i~ts in ~e Trinity ~v~
bet~e~ Lewiston D~ ~d Weitc~oec;
(B) r~ili~te fish h~ih~ts in ~u~ies of such
riv~ belo~ Lewiston D~ ~d in ~e sou~ fork of such
riv~ ; ~d
(C) mod~ze ~d o~e~ise in,ease the effectiveness
of ~e Trinity ~ver ~ish K~hch~.
(2) The es~lis~ent of a proced~e to monitor (A) the
fish ~d wil~ife sto~ on ~ continu~g basis,
(B) ~e effectiveness of the reh~ilitation
(3) Such o~er activities as ~e Secret~ det~nes to
be necess~y to ~chieve the long-te~ goal of ~e
pro~.
IPublicL~ 98-E41, 98 St~t. 2721.
2
7
14
2o
2~
22
24
25
26
27
TD: U.~. D~]-RZCI-CO~T TEL. ~0: ,q~
i-u~P.OUi~ r’-n85
(I) The desiqn, construotion, operationr and
m~intenance of facilities to --
(A) rehabilitate fish habitats i~ the Trinity River
betwee~n Le~iston D~/a and Weitchpec;
(B) rehabi!itate fish tab±tats in tribut~rles of such
river below Lew±ston Dam and in the so~th fork of such
river; and
(C) modernize and otherwise increase the effectiveness
of the T~±nity Rivem Fish H~tchery.
(2) The establishment of a procedure to monitor (A) the
fish and wildlife stock on a continuin~ basis, ~nd (B)
the effectiveness of the rehabilitation work.
(3) Such other activities as the Secretary determines
to be necessary to achieve the long-term goal of the
program.
Public La~" 98-541, Section 2 (a) .
In 199!, the Secret~ry of the Interior increased the mirLimUm
in the Trinity River to B40,000 AF/year unti! the Trinity
flow study ~as completed. The B40,000 AF number was the
=,st unregu!ated flow on record.
!n 1992, Conqress enacted the C~PIA to annually redirect
of the CVP’s water to t~he envirornuent. CVPIA ~ 3406 (b)(23)
~lly re.~/ires Interior to restore the Trinity River. It
~emifies that not less than 340,.000 AF of water be released into
Trinity River each year for water years ~992-1996 in order to
federal trust respons~_bilities to the Hoopa Valley T~ibe and
meet the restoration goals of the 1984 Act.
3406 00) (23). It directs the secretary of the Interior
(~’Seeretary-) to complete the Trinity Rive~ Flow Evaluation Study
("TREES") no later than Septembe~ 30, !996. C~/PIA
B406(b) (23) (A) . The T~S was to be perfo~ed ~in a ~d~ner
insures the development of reconu~end~tions~ based on the
best ~vail-~ble scientific d~ta~ regax~ng perm2_nent instre~-m
flow requirements ~nd Trinity ~iver Division operating
1
2
4
5
6
7
9
II
13
14
17
20
21
22
23
24
25
27
~a ~nd procedures for the restoration and maintenance of
Trip_ity .~iver fishery.~’ !~. Section $406 then directs the
~ecreta~-y to forward the TRFES recommendations to several
congressiona! committees no later than Decembe~ ~!~ 1996. CYB!A
3406 (b) (23) (B) -If the Secretary ~nd the Hoopa Valley Tribe
concurred in the TRFES recommended increases for Trinit~ River
[nstream fishery flow releases establ±shed under CV~IA
~ 3406 (b) (23) (B) , s~ch restoration flows were to be implemented
~ccordingly. ~. If they did not concur, the 340,000 AF minimum
must re~ain in effect unless increased by ~n ~ct of
, appropriate judicia! decree o~ agreement between the
~nd the ~oopa V~lley Tribe. Z4.
In !996, Congress ~!nended the !984 Act by the Trinity ~tiver
B~sin Fish and Wildlife.M~nzgem~nt Reauthorization Act of 1995,
~. L. No. I04-408~ II0 St~t. I338 (1996). The TREES was not
~imely completed. Congress directed that Trinity River
~esto~tion be measured not only by returning ~dult anadromous
[ish spawners, but also by the ability of dependant tribal,
--ommerci~l, and sport fisheries to participate fully~ through ~n-
rive~ and ocean harvest opportunities, in the benefits of the
=estor~tion. Pub. L- No. 104-408. Congress also included
[uage amending the activities to be undertaken by the
~ry. ~d. The orig~_n~l l~nguage directed the Secretary to
~’modernize and otherwise increase the effectiveness of the
River fish hatchery." The 1996 Act adds ~so that it can
best serv~_ee its pu~ose of mitigation of fish habitat loss ~bove
Da/~ vhile not impairing efforts to restore a/%d maintain
.ly reproducing anmciromous fish stocks within ~he b~sin."
17:4~_ ~PR 04, 2@@3 iD: U.S. DISTRICT COURT TEL HO: 4~87EE6
2
3
4
5
6
!0
0.3
17
2O
21
22
2B
2~
2~
26
2?
28
!n J~nua~y 199Br the ciraft Trinity River Floe ~v-~lu~t!on
~ort (TRFER) w~s released. In June 1999, Interior, in
Consultation with the Hoopz V~lley Tribe, published the Trinity
~ever Flow ~.v~luation Fina! Report (’~TP~F~.R") . The TRFER
commends permanently increasing the Trinity River fish flows
irom the statutorily ~nndated 340,000 A~/year to betwee~ 36S, 900
815,200 A~/year, as follows:
DISTRICT COURT TEL ~0: ~98T~g ~T6326 P~.GE: ll/Tb
l
2
5
6
7
8
9
I0
II
12
13
14
15
2O
21
22
23
24
25
26
27
28
999). The p~blic comment period ~a_~ extended until January 20,
000_ 64 Fed. Reg. 67584, 1999 ~’L 1078497 (Dec. 2, 199£) ; 64
l
ed. Reg. 72357~ 1999 WL 1247501 (Dec. 27, 1999)..
On January 20, 2000r San Luis & Delta-Mendota ~&ter
thority (~’San L~is") submitted written comments~ criticizing
e DEIS, noting, inter ~JLia, that the DEIS failed to analyze the
~referreds potentia! adverse environmental impacts&l tern&t±ve ’
federally listed encl~ngered or threatened fish species within
~ne S~cr&mento River system and the Sacramento-San Joaquin Delta
I’~Deltz") , a!%d also failed to analyze how these adverse i~pacts,
any, could be minimized or ~voided. Dec. 35 at ~ 39-40 & Ex.
On March 10, 2000, Westlands Water District (~Westl&nds’~)
!%d Szn Luis sent ~ sixty-day notice of intent to sue to
!nteriorr threatening suit &f Xnterio~ did not undertake
ESA consultation on the TRFER. On March 29, 2000, Inter&o~
¯ #orwarded the ~ to Congress, pursuant to C~9_IA ~ 340603)(23)
I"the Secretaz~" shall forward the reco~nendat!ons of the Trinity
~ver Flo~ Evalu~kion Study to the Committee on Energy and
~atur&l Resources and the Select Committee on Indian Affairs of
:he Senzte and the Com~aittee on Interior and Insular AffairS and
Committee on Merchant Marine ~nd Fisheries of the House
<epresentztives. If the Secret~y and the Hoop& Valley Tribe
zoncur in these recommendations~ any increase to the minimum
~ ~’Cor~nents of the San Luis & Delta-Hendota ~q&ter Authority
bn the Trinity River ~ainst~m Fishery Restoration Environmental
~pact St&t~r~ent/Environmentai Impact Report, " dated January i g,
l0
1
6
7
9
Ii
14
16
19
2O
23
24
25
27
?s
rinity River instre~m fishery releases established under this
~zragr~ph and the operating cr±teria and procedures referred to
.n subparagraph (A) shall be implemented accordingly.").
On May 8, 2000, Interior responded to San Lu±s’ letter,
Lcknowledging that ~S~A ~ 7 consultation over potential effects
species listed as either threatened or endangered under the
ESA .must be accomplished as part of the process of making ~
n on the Progr~n." It reassured that ~\no fin~l decision
the Program will be made until both the USFWS and hqqFS have
~s~ued biological opinions regarding implementation of the
and that these opinions will be taken into consideration
in making such decisions."
On october 12, 2000, the National Marine Fishery Service
("I~qFS") foln~_lly issued the ~\B±ological opinion for the Trinity
River Mainste~ Fishery Restoration EIS ~nd Its Effects on
Oregon/Northern Californi~ Coast Coho saimon~ Sacramento
W±nter-r~n Chinook Sal~on, Central V~lley spring-~un
Salmon, ~nd Central Valley Steelhead" ("BloOp."). This
recognizes that implementation of the report will effect
~ny aspects of the river, including decreased ~ater flows, and
~scusses reasonable and p~udent measures ("RPMs") to minimize or
avDid the preferred alternative’s impacts on ’~federally listed"
£ish.
Also on October 12~ 2000, the USF~S issued ~Re[-]initiation
Df Formal Consultation: Biological Opinion of th~ Effects of
Long-term Operation of tlne Central Valley Project and State Water
~roject ~s Modified by i~plementing the P~efe~red A!tern~tiv~ in
17:45 ~R 04, 8~8S ID: U.S. DISTRICT COURT TEL NO: ~987EE6 ~7~S~6 P~GE]:
3
4
7
9
!!
12
14
19
2O
21
22
23
24
25
26
_97
eport for the Trinity River Mainstem Fishery Restoration
’rograza" (~US~S BloOpt’) . On November 17, 2000, Interior
,ublished notice of the availability of the final EIS/EIR
"~i$"). 65 Fed. Req. 69512, 2000 WL 1711646 (Nov. !7, 2000).
On December 14: 2000, West!~nds filed s~it against
[efend~!nts, alle~nq three claims :
(I)~m~l~dministration" of the Endangered Species Act
(~ESA") by the USeS ;
(2)mal~dministr~tion of the ~SA by NMES2 and,
(3)violation of ~T~PA by ~II defendants.
Dec. 1 at 15-24. That same day; Westlands sought an emergea%cy
zourt order to enjoin the defendant, B~n/~e B~bbitt (~s Secretary
~f the Interior), from executing a Record of Decision (~ROD")
¢ith the ~oopa Vall~y Txibe, scheduled to be signed on Tuesday,
December 19, 2000. On Dece~iber I~, the Eoc~a Valley Tribe
Lntervened as a defendant in the c~se.
The motion for a Temporary Restr~_ining order ("TRO,) was
~enied in open court on the afternoon of December 15, 2000, ~nd
the confirming written order was e~tered on January 30, 2001.
Doe. 85. The application £or a T!~O was d~nied because at the
time of the December I~ hearing, Secretary Babbitt had not yet
signed the ROD. The sig~ing was scheduled for December 19, 2000.
~ntil the ROD w~s signed, there w~s no ~’final agency action’~ that
~estl~nds could challe~_ge ~nd no authority existed to enjoin the
Executive from i~plementing the statutoz-y function of reaching
~greement ~’ith the Xndian Tribes on the Trinity River Restoration
Pl~n. Id. at
On December 18, 2000, the Eoopa V~lley Tribe concurred in
fine TREES recommendations. On December 19, 2000, Secretary
!2
T-Of5 P,OI4 F-086
i
2
3
5
7
9
!0
11
12
!3
14
!8
19
2O
21
22
23
24
25
26
27
2S
~bbitt ~nd the Senior Chairm2a% of the ~oopa Valley Tribal
%oil signed the ROD. The ROD directs Interior’s agencies
mpiement the PreferredI Alternative as .described in the FE!S/EIR
and as provided below," and "to implement the reasonable and
~rudent measures described in the N~FS and [US~WS] Biological
The ROD’ s stated purpose is : restoration ~nd perpetual
of Trinity River’s fishery resources by
the river and restoring attributes of a healthy,
zomponents are:
Perm~nent!y increase~variable ~nnua! flows
for the Trinity ~iver;
Rehabilitate physical ch~nels, remove
riparian b~rms and establish side channel
habitat;
Sediinent management to increase
gravels and reduce fine sediments;
Restore the ~atersheddamage by l~nd use
practices;
Improv~ infrastr~icture, including bridges
other structures ~ffected by peak flows.
On January 5~ 2001, Westlands ~nd two ne~ plaintiffs, the
~an Luis and Delta-Mendota Water Authority, and the S~n Benito
County Water District (collectively "water districts") ~ filed a
first amended complaint against the federal defendants, alleg~ing
four causes of ~ction:
(!)ma!aclministr~tion of the ESA by the US~¢S,
claiming that by ~’issuing a non-jeopardy
biological opinion that requires a ~jor ch~ng~ in
CV~ operations [i.e., preventing ~ny upstre~/~
movement of 0.5 k~ or more of the X2 water quality
standard], the USEWS h~s exceeded its authority
undez the Endangered Species Act;"
(2)maladministration cf the ESAby N}fFS, claiming
that N~FS acted arbitrarily ~nd c~priciously and
in excess of its ~uthority under the ESAby
issuing a biological opinion that internally
DISTRICT COURT TEL HO:
1
2
3
4
6
7
8
9
I0
17
18
20
21
22
23
24
25
26
_07
conflictst because it states on one hand that
"NMES does not ~nticipate that i~plementation of
the proposed £1ow schedules wii! incidentally take
~ny SONCC coho salmon," and on the othe~ hand,
prescribes RPHs to deal with incidental t~ke;
(3)violation of NEPA by ~ll defendants, c!~iming
that: (a) the draft and final EIS/EIRs do not
analyze the impacts of implementing the
requirements of the OS~WS ~nd lq~FS biologic~l
opinions; (b) the fina! EIS/~IR does not
adequately describe what CVP operational changes
will occur to protect or mitigate the ~verse
effect upon listed fish, upon which the draft
EIS/EIR acknowledges i~plement~tion of the
prefe~ed ~iternative ~u~y h~ve a significant
~dverse i~p. act, and simply defers mitig&tion
Consideration ~ntil later; (c) because the
biologic~l opinions n~odified the proposed action
by cre~ting new environmental impacts (or new
c±zcumstances and information), the defendants
failed to supplement the EIS/E!Rs to analyze these
i/np~cts and p~blish the ~nalysis for public
comment; (d) the dmaft ~nd f±nal EIS/EiR do not
fairly ~ral~ate ~ite~natives, and are in essence a
~’pest hoc ration~lizat±on to 9~stify a course of
action decided upon before ~EPA review even
began;,t (e) the ~.IS/EIRs utilize improper:
definitions of proper purpose by using the
~he~lthy river" standard rather th~n an objectiv~
standard; ~nd, (f) the final EIS/E!R, or a
supplement thereto, does not ~alyze the impact of
imple/nent~tion of the preferred alternative on
Ca!ifornia, s current energy crisis ; and,
(4) violation of the Administrative ~rocedure Act
(~A2A") , claiming that the TI~I~’ s recom/nendations
~dopted by the ROD are not based on the best
~v~il~iDle scientific d~ta in violmtion of CVPIA ~
3406 (b) (23) (A) , and its concl~sions are a~bitrary
~nd capricious.
9OC. 35. The Y~rok Tribe intervened as ~ defend~/~t on January_
2001. On Feb~/ary 8, 2001, the Nor~ern California Power
~gency (~NCPA") and the Sacramento Municipal Utility_ District
(~.qMUD") intervened as plaintiffs over the _opposition of the
~oep~ Valley and Yurok Tribes. ~
complaint-in-intervention~ previously lodged on
was filed on Febru~r~ 6, 2001. Dec. 105.
compl~int-±n-interv~_ntion~ pr~riously lodged on Jm!~uary 5,
!4
i
3
5
6
7
10
!l
13
15
17
2o
22
23
24
26
27
The water districts filed a motion for preiin%inary
~njunctionj on Janua-~y_ 5, 3001 and NCPA and SMUD mo~ed for a
~reliminary ingunetion on February 6, 200!. A preli~inzry
tnjunct±on issued on March 22, 2001 limiting the amount of water
releKses ~nder the ROD to a total of 36B,600 AF. A~l other
~Spects of the ROD’s Trinity River restoration plan were not
~joined. The decision, made without a complete administrative
eco~d, found plalnt±ffs we_re likely to succeed on the merits of
claim because the two BioOps in~. osed si~T~ificant
±mpacts that ~ere not anzlyzed in a supplemental
(~SEIS") ~nd the C~lifornia ener~ crisis was a changed
~ce thmt should have been evaluated, but was not.
On September 7, 200~, the United States, the water
, ~CPA, and SMUD, but not the Tribes, entered ±nto and
a stipulation to sta.v the proceedings in th~s case unti!
~nterior issued a revised ROD following completion of an SEIS.
federal defendants and plaintiffs ~greed that the preliminary
unction would remain in place unless otherwise ordered by the
The defendant-~nt~rvenor Tribes did not oppose the stay
but did not join the stipulation because of paragraphs
and nines ~hich they believed demma%ded actions not
~Paragraph eight states:
The SEiS will addmess, among other topics, the issues
ident±f±edby this Court as requi~ing further analysis,
including ~aets from the ROD or changes to Trinity
Rive~ flows on the pr(~v-ision of electrical power to the
Central Valley Project and the po~er grid serving the
State of California, along with the effects of the
End~D.gered Species Act ~ 7 biolo~_cal opinions issued
2
4
6
7
9
II
~4
15
17
19
2O
21
24
25
27
2S
~P. @a, ~B@3 iD: U.S. DIST~.!CT COURT
~ _~quired by law. ~owever, they found the proposed orde~
~ ~nobjection~ble. " On October 8, 2001 r the court si_crned the stay
~ rder.
On March 14, 2002, the Tribes moved to modify the
] .meliminary injunction for water year 20~2 ~lleging changed
circumstances. On April 19, 2002, the pre!i~uin~-~y, injunction was
m~odified to ~thorize the release of 468,600 AF of w~ter into the
~rinity River for the purposes of fishe~-y protection ~nd
by the U.S. Fish and Wildlife Service (FWS) and the
National Marine Fisheries Service
~Paragraph Nine states:
The federal defencL~nts have ad’~ised the parties to this
litigation that, through the SEIS scoping process, any
person or party ~ill have the opportunity to present
other issues that they believe should be included in
the SEIS a/%d that the feder-~l defencl~nts will carefully
consider ~ii such presentations. In ~cklition to the
formal scoping a~d p~blic comment processes under
~nd the ~O~ regu!~tions~ the feder~l defendants will
use the available legal procedures to invite
consider technic~! information and ex!D. err ad’~ice from
~ii sources. T~nese procedures will ~llo~ scientific
~nd technical discussion among the scientists and
technical experts of the federal defendants,
p!~intiffs, plaintiff-intervenors, ~nd defendant-
intervenors, ~nd others having such expertise, so as to
m~ximize the v~lue of the scientific ~nd technic~l
input from non-federal sources. The goal of these
procedures is to make the gEIS a thorough,
comprehensive, and scientifically sound document, as
re.cuired by NEPA and the CEQ reg~!~tions. When
co~p. leted, the federal defendants ~ill prepare
revised RoD. In conjunction ~ith the SEIS ~nd re~-ised
ROD~ the federal defendants will consult
NM~S under ESA ~ 7, as appropriate. The gElS, revised
ROD, and ~ny biological opinions will be subject to
leJ~l chall~/%ge on any legally cogniz~iDle grounds in
this o~ inde.De~nclent litigation by ~ny p~rty.
!6
1
3
4
5
6
7
I0
14
15
16
17
Is
19
24
26
27
:PR 8a, ~883 !D: U.S. DYSTRTCT COURT TEL MO: a9877-26
~estor~tion for water year 2002. See Doc. 222. All othmr
~spects of the Trinity P~iver re~tor~tion plan were not s~bject to
:he injunction. The order modifying the preliminary injunction
~so v~cated the st&y a/ud set ~ schedule for disposition of the
zase on the merits. Work on the SEIS slowed.
On January I!, 2002 the w&ter d~stricts, NCPA, SMUD, the
[ederal defendants, and the Hoopa Valley Tribe filed cross-
notions for surmn~ry judgment. The Yurok Tribe did not file a
zross-motion for summary judgment b~t opposed the water
iistricts~ NCPA~s, and SMUD’s motions
A December $0, 2002 a Memorandtun Decision and Order was
issued resolvin~ the cross-motions for summary, judgment in favor
24, 2003, defend~ilts-interveno.rs Hoop& Valley Tribe filed a
notice of mppe~l to the Ninth Cir~it. Doc_ 32~. on Febru~t~z
10~ 2003 federal defendants filed a notice of appeal. Doc. 3B6.
Federal defendants fi!e<i the curre/zt motion to modify the
December !0, 2002, injunction on J~nuary. 22, 2003, to extend the
oeriod for completion of the SKIS. The Hoopa Valley Tribe filed
)f injunctive relief on Jan~&ry 24, 2003.
I I. STANDARD
Motion to St&V .......under F.R.C.P. 62 (c.)
Fed.R. Civ. P. 62 provides in relev-~nt part:
(C) Injz~ction Pendin~ AoDeml. ]~quen an ~ppeal is
taken from an interlocutory or final judgme/%t
granting, dissolving, or denying ~n ingunction,
the court in its discretion .may suspend modify,
restoze~ or gm~nt an inJttnction during the
!7
T-Of5 P.Oi9 F-086
!
2
3
4
5
7
io
II
14
17
19
2o
24
T-Of5 P.OZO ;--u~6
#Tr=S2G P~GE: F::B/75
3
6
7
I0
12
14
15
17
20
21
25
26
27
28
Zac., 242 F.3d I16~, 1!66 (gth Cir.2001) . Rule 62(c) ~codifies
.~oe established’ and n~rrowly limited ~ight of ~ tri~lurt ~to m~ke or~r$ a~r~ri~te to prese~ ~e status
~h!le ~e case is pen~ng ~n (~) appellate court.’ Zd., citing
~o~t~est ~e imc., 242 F.3d i~6S, 1166 (gth Cir.2001).~ter
~ z~e~l ~ ~z tri~ court ~y, if the pu~oses of justioe
re~ire, prese~e the status ~o ~il decision by the ~ppell~te
zourt ....~t it ~y not finely ~dju~c~te ~st~ti~! rights
~rectly involved in ~e ~Dpe~l.’ " McClatc~- New~aper~ 686
. ad zt 734-735 citing Ne~on ~. Co~soli~te4 Gas ~., 258 U.S.
~. So~st ~e Zinc., 242 F.Bd 1163, 1166 (9~
Cir.200!) (citing ~C~tc~y New, apex=) . "~e st~d for
in ~ci~ng whe~er to grant ~ preli~n~ injunction_
Hec~er~ 713 F.2d 1432~ 1435 (9~ Cir.
~e governing consideratio~ include:
(I) whe~er the stay applicant has made a s~ong
showing thzt he [or she] is likely to succeed
~e merits ; (2) whethe~ ~e <~Dlic~t will
irrepKr~ly ~njured ~sent a s~y; (~) wheth~
issu~ce of the stay ~ill s~st~nti~ly in~ure the
o~er p~rties interested in the
(4) where ~e p~!ic interest l~es.
II ~riqht & Miller S 2904 ~t 501 citing
Jobbers ~s’n v. ~, 25S E.2d 921 (C.A_D.C. 195S) ; see also
Direct ~ketiag ~s’n, Znc. v. Bereft, 1991 ~ 3~1945
(E.D.Cm!.!991) (citing HZ~n ~. Bra~ki/~, 481 U.S. 770, 776
(1987)) . A stay w~ll be ~r~ted if the bal~nce of
19
17:5~ ~pFz. 84, Z003 ZD: U.S. DZSTRICT COURT ~ MO~ 4£87226
2
4
5
7
8
:1_0
3.$
3.2
’13
:1.5
16
17
18
19
20
2"[
22
23
24
25
2~
2"/
28
~-763P_.5 f~RGE: 25/75
[avors the applicant and the moving p~rty demonstrates a
likelihood of success on the merits upon ~peal. ~! Wright &
~ller ~ 2094 at 502; Lopex v. Heck!er~ 713 F.2d 1432, 1435 (gth
2ir.!983).
F.R.C.P. 65 Prelimina~.....Linj~ction
The standards for a temporary restr&ininq order (TRO) and
preliminary injunction a~e essentially identical. See City of
~enakee Springs ~. ~ock, 778 F.2d !402, 1407 (gth Cir. 1985).
L~here zze two alternative tests to determine whether And when
Southe-~m C~liforniat 13 F.Sd 1313, 1319 (gth Cir.1994) .The
"traditional test" requires plaintiff to establish:
(I)a strong likelihood of s11ccess on the merits;
(2)the possibility of irreparable injury to the plaintiff
if the injunction is denied;
(3) the ba!a~Ice of hardships favors the p!&intiff;
(4) the public interest favors granting the injunction.
¯ n re ~axil Litig., 2002 U.S. Dist. LEXIS 16221 (C.D. Cal..AUg.
16, 2002) citing America~ Y~torcyclist i~s’n ~. ~tt, 714 F.2d
962, 965 (£th Cir. 1983); San Luis & De!re Y~end~ta Water Auth.
~ixley Irrigation Dist., 1999 U.S. Dist. LEXIS 22369 (E.D. Cal.
M~y 21, 1999) (citation omitted) ; ~arahona-Gcmez v. ~eno, 167
1228, 1234 (9~h Cir.1999) citing Los Angeles P~m~orial Coliseum
Commission v. Nationa! Football League, 634 F.2d 1197, 1200 (gth
Cir.1980). Some courts have condensed the latter three fzctors
into a single ele/nent, which weighs the relative balance of
hard~hips to the plaintiff, defendm/~t, and the public. See
20
1
3
4
5
6
7
s
I0
!5
16
17
19
2o
22
23
26
27
2003 iD: U.S. DISTP.ICT COURT TEL 1-t0:49~7EE5
Ti!la~ook Co~t_v ~o United States ~ Coz, s of Eng’rs, 288
~140, (9~ Cir- Or. 2002) citing ~a=ke ~. Native Village
Eenetie, 856 F.2d !384, 1389 (gth C1r.1988); United S~ates 7.
Y~tri-coio~ Inc., 982 E.2d 394, 398 (gth Cir. 1992).
Unde~ the ’~refo~ed test~" ~ injunction will issue if the
Dl~ntiff c~ show either (I) ~ prob~le suce~s on the merits
~d & ~ss~il~ of irrepar~!e injury~ or (2) a fair chance
~uccess on the m~its, and the bal~ce of h&r~hips tipping
~h~ly in plaintiff’s favor. Co~ecti~t ~. Newels of
Beverly HiZZs, 2003 U.S. ~. LEX!S 3782 ~5-~62 see aiso~
Ei~ok Co~n~, 228 ~.Bd ~t 1143; ~tri-coio~ Inc., 982 F.2d
£t 398; ~tro ~. Ltd. ~. S~ Jose ~=~ News, 987 F.2d 637,
639 (gth Cir. 1993); 13 Moore’s Federal Practice, ~ 65.2215] [i]
(Matthew B~r 3d ~. 1997). The two alternati~s in the
test should not be tre&t~ as s~arate tests, b~t ra~ as
opposite en~ of a continu~ in ~hi~ the n@cessit~ for showing
"irn@zr~le ha~ increases ~s the prob~i!ity of succ~s on the
Cir.) , cert. ~ni~, 503 U.S. 985; 112 S.Ct. 1670, 118 L.~d.2d
390
The basis for injuncti-~ relief (pr~n~ o~ peanut)
in the feder~ courts has ~’ays be~ irrepar~le injury ~d the
Cai~o~a, 13 E.3d 1313~ 1320 (gth C~. 1994) ; ~erger v.
~ro-Barcelo, 456 U.S. 305, 3i2 (1982). Under @~ther the
tractional or the refo~ed a~roach~ to obtain a preli~n~
Injunct&on, the pl~ntiff ~st show that it is "likely" to
21
17:51
1
2
3
4
6
7
i0
ii
14
15
17
2O
21
22
23
25
27
PR B4, 2~3 ID: U.S. DISTRICT COURT TEL HO:
T-OI5 P.023 F-085
#7£:,325 PAGE: 23/75
~re’~ail on the merits. Haitiam l%e~ugee Center,
~ariStOl~er, 43 F.Sd i431, 1432 (Elth C±r. &9£5). As part of its
)a!ancing of factors, the court ~eighs the competing clzim~ of
~njury and considers the effect on each party of the granting or
~ithholding of the requested relief. See
~f So=t3aern Ca!ifor~ia~ 13 F.3d !313, ~319 (gth Ciro!g94); Amoco
1987).
III.DISCUSSION
Federa! Defendmnts’ Motion to ~odify the Injunction and
the Suomlemental EIS Deadline
The December I0, 2002 Court Order imposed a 120 day deadline
by which the Federal defends/Its ~e required to cor~plete the
Supple_m~ntal Environmental Impact Statement (SEIS). See Doc.
B05. Federal defeandants move for a fifteen month extension of
that deadline, ~tntii ~uly 9~ 2004. Defendants contend the court
inherent discretion to modify its injunction under its equity
urisdiction "to fashion equitable inj~tnctive relief tailored to
~e partic~imm circumstances.- Doc. 310 at 2.
Federal Defendants recognize that the December Order
requires they:
"reconsider the scope z~d purpose in the SEIS," to
mddress the December Order finding "’competing
dermlnds for use of CV? water objectives, ~hich
although second=nm-y to the more specific
restoration goals of (b] (23), should have been
given consideration in the I~PA review~ to
into account the restoration of fish and wildlife
p<mul&t!ons in the Trinity
"select [~_nd exzmine] & different rznge of
alternatives, includingr at & minimum,
~IntegrAted Mmn&ge/~nt’ alternative as part of the
22
~-0~5 P.OE4 F-086
1
2
3
4
5
7
8
9
I!
12
13
14
15
17
20
22
23
24
26
27
SKIS. "
° "complete consultation under Endangered Species
Act and receive new biological opinions listing
mitigation measures before they publish the draft
SKIS for public comment," as to the reasonable and
prudent measures (RPMs) for salinity contro! (the
X2 position) and temperature control.
"prepare an analysis of potential impacts on power
system reliability, with parti~!ar emphasis on
the Northern California market, and include that
analysis in the draft SEIS to allow public and
3oc. 310 at 3-4.
Federal defendants contend that a suppl~ment~l EIS, which
eomp!ies with the cou~t~s December Order, c~nnot be completed
%’ithin ~20 days because the order, ueffeetive!y ~equires that
Interior conduct an extensive and thorough reex~n%ination of the
entire ;.iS." Doc. 310 at 4. An SK!S ~as commenced in 2001,
after Interior executed a contract ~ith its consultant~ CH2!~
Hil!. That SKIS was to respond to the preliminary injunction to
consider ~the impacts of the F_DM mitigation (X2 ~nd temperature
contro!) and the power system re!i~bility.
!nt~ior’ s consultant, Ch2M Hill, provided a/% initi~l 12 month
SEIS s~hedule to be completed January 2004, and imp.!ies an
that complies with the Court’s Order will t~ke up to 36 months.
Fede~l defendants suggest a less com~.reh~sive SKiS can be done
more swiftly: "if the Court should indicate that its Memorandum
Opinion can be interpreted in ~ narrower manner (e.g., if the
revision of the purpose and need statement is construed to
require a less drastic revision), then the federal defendants
might be ~ble to accelerate the SKiS process to some degree."
Doc. 310 at
Responding to West!~nds, cr~tique that Federal Defendants
23
2
3
4
5
6
7
9
10
II
&6
17
19
2O
21
25
26
27
%PR ~, £889 ID: U.S. DISTRICT COURT TEL HO: 49~7~6 ~7652~, PA&E: ?_.5/°¢b
[ere actually seeking reconsideration, Federa! Defendants’ reply
Drier ac~-nowiedgem their motion is confusing ~nd spec±fie~lly
~tate they "do not re.~/est reconsideration." Federal defendants
zlarify their earlier comment, ~any clarification of the tasks
Mr_ Orko~-] must confront as project m~n~ger for Interior’s
~onsulting firm in preparing the SEIS could expedite [or perhaps
~elAy] the ability to Adhere to the 18-month schedule_"
Interior admits that ~ ~del~y of up to three years" would
not confo~ to the court’s directive ~to proceed expeditiously
~±th the restoration of the Trinity River." Doc_ 3!0 at 6:4-8.
Interior ~reluct~ntly" has instructed CH2M ~ill to prepare an 18
month schedule for the SE!So Id. ~t 6:9-12. Fede~zal defendants
aver they ~ill ~make every effort to see that they stay on track
to meet this deadline," however ~’they are constrained to advise
the Court ~nd to notify the other parties that any number of
~nforeseeiq circumstances could ar~se that might require Interior
to return to the Court to seek a further adg~stment of the
de~ciline." Doe. 310 at 6. Znterior concludes plaintiffs will
not be harmed by extending the sEiS deadline ~5 months, due to
the court’s injunctive relief for flo~s of 4~3,000 acre-feet of
annu~l release of water to the Trinity River antil the SEIS is
completed.
Interior sub~its a declaration of Mike Urkov, the SE~S
project m~nager at CE21~ Hill. Mr. Urkov’s declaration questions
t!~e feasibility of Interior’s proposed iS month timeline. Mr.
O~kov explains the !8 month time!ine assumes the follow~ng~
~revisions to the project purpose &re relatively ~inor, computer
modeling results &re somewhat similar to pr%~rious results~ and
24
1
2
4
6
7
I0
12
14
15
16
18
19
21
22
25
26
27
~onditions required by the Endangered Species Act (ZSA)
~consult~tion do not require additional r~odeling.’r Doc. 3!i mt
25-27, 6:1. Mr. Urkov. admits, ’~m~jor revisions to project
purpese requiring eomp_lete overhaul of alternatives and starting
~.SA consultation from scratch could result in a completion date
in 2006." Doe. 31! at 5:3-5. The SEIS could be come. feted in
~arly change to project purpose and relatively quick2004if
ESA consu!tation" occurred. Doc. 311 at ~ : 5-7.
and processes, which will imp. act theThedifficulties
upplernent~l EIS time_line, include :
CALSIM ~nalysis used to determine the effects of
the biologica! opinions and pr~v-ide d~ta for
analysis oZ enemgy generatlon~ s~bject to revie~
by US~ and the California Department of Water
Resources. Issues which may affec~ ~ALSiM results
include: changes to b(2) water accounting;
listings or delistings of fish species under the
~.SA; and, long-term water contract renewals.
Re-ev-&luation of the p~rpose statement of
subsequent alternatives, which would ~likely
require n%unerous meetings and coordination
sessions to revisit the many policy decisions made
during the six-year preparation period of the
ZXS/EIR. ~’
~ Reinitiation of consultation with issuinc a~encies
(~ationzl M&mine Fisheries Service and t~e ~. S.
Fish and Wildlife Service); any new terms and
conditions imposed by reconsultation Ucouid
require more supplemental analysiS, which would
further complicate the task of preparing a
competent documelzt. "
a minimu~ sixty-d~y public review period and
corresponding response time to deal ~ith public
comments (ten months were spent responding to
public comments during the EIS process).
Mr_ Urkov exlplains that the computer modeling system,
P~OSIM, used for the ~IS has been r~D!&ced with a new, mo~e
detailed systemr C~SIM, and this change m~y also impact the
timeline. Doc. 3l! at 3:18-!9. Mr. Urkov advises any timeline
25
!7:54 ~PR 8~, 2883 iD: UoS. DISTRICT COURT T~_ HO: 4987~6 #76326 P~qC-E; ?_7/75
1
3
4
5
6
7
8
9
!0
12
i_5
!6
17
18
19
2o
22
23
24
25
27
28
.s speculative ~until the rem~sed project purpose statement is
" ~. at 4 : 8-23. This i~plies t_hat ~ supplemental EIS,
:hich conforms with the December 2002 Order~ could t~ke a nu_~ber
of years :
revision of the project purpose ~nd alternatives his
the potential to set the Supp!em~ntai EIS/EIR process
back to where we were in spring 2001, and potentially
require considerable additional time and effort. CE2~
Hill estimates that the completion of all of the above
tasks [complying with the Court~ s Order] , including
modeling and ana!ysis of additiona! alternatives, cannot
be completed within the 120 day deadline.., and, based on
the administr&tive processes, difficult policy issues,
a!%d coordination effort required to prepare the original
ETS/E!R, could take a n~mber of years.
Doc. 311 at 6:2-12.
Pla.intiff-int~venor Sacramento Municipal Utility District
(SNUD) does not oppose federal defendants’ motion for a fifteen
month deadline extension. Doc. 329 at 2:10-11. S~Y~D
ac’knowledges that a v~lid SEIS ’~na/st correct the legal
deficiencies of the existing EZS by incorporating, among other
things, a revised purpose and &!ternatives ~nd analysis,
including &n alternative that integrates flow
other management measures." Id. at 2: 6-10. SN~D opposes federal
defendantsr motion ~to the extent it incorporates and relies on
the accompanying Declaration of Michael Urkov." Zd. &t 2. SMUD
contends Mr. Urkov’s J~ly 9, 2004 deadline which ~ass~mes that
revisions to the progect purpose are reiative_ly minor.
inconsistent ’~with the federal defendants recognition of the
requirements of this Court’s order." -~d. at 2:&9-22. S~JD
asserts that ~Jay deadline which assumes little chang@ to the
progect purpose or alternatives "would violate this Court’s
26
!
4
5
6
7
I0
II
14
16
17
19
21
22
24
27
28
~ 04, 2~o~ iD: U.~. DISTRICT COL~T T~u H0:4987225
T-OiO ~’.0Z~/022 F-065
~rder," would violate NEPA, and would ~-ioiate the ESA. Z~. at
~_:26-2S. £MUD requests the court clarify that the SEIS
zorrect the legal defic±ene±es of the existing EZS as identified
in this Court’s December I0, 2002 Memor~ndtun Decision and Order."
Doc. 329 at 3. The order speaks for itself.
Plaintiffs San LUis and Delt~-Mendot& Water Authority and
~estlands Water District ("plaintiffs=) do not oppose extendin~
~he SETS deadline to July 2004. Doc. 349 at 2. Plaintiffs
Dppose ~ny reqiaest by the federa! defendants ~hich appears to
~eek permission "to do &n SE-TS that does not address all defects
~hat the Court identified in its summary judgment ruling."
Plaintiffs contend federal defendants’ moving papers &re
unclear as to whether the S~.IS ~ill adequately address the
deficiencies that the court identified in Interior’s NEPA
analysis mlud the h-SPA schedule attached to ~ike Urkov’s
declaration does not encompass an sEIS that complies with the
court’s order. Doc. 349 &t 3:9-&2. Plaintiffs point out 14ike
Urkov’s statement that the &8 month schedule assumes revisions to
the project purpose are relatively minor, id. &t 3:12-21.
Plaintiffs ~ssert Hr. Urkov’s declaration lacks fottndmtional
facts concer~ing the level of resources he ~ill comz~it to meet
his schedule, and suggest more resources may have to be committed
in order to meet appropriate deadlines.
Plaintiffs a~gue federal defendants’ motion suggests the
court change its Order to allo~ defendants to meet & ~5 month
exte!~sion. Doc. 349 at 4:!8-28 (citing to defendant’s statement
that, ~’if the court should indicate that its Memorandum Opinion
27
2083 ID: Uo$. DISTRICT COURT TEL NO~ 45Z877_2-~
!
2
3
5
6
7
9
II
13
14
16
19
2o
21
23
24
25
26
27
’.~n be interpreted in the narrower ~anner... "). Plaintiffs ~rgue
~efend~nts’ i~plied request does not cite new law or evidence to
;upport reconsideration. ~ederal DefencL~ts clarify they do not
iequest reconsideration. Plaintiffs argue defen ~dants should be
ranted the time necessary. ~to fil! all their obligations in
~ccordance with ~iI applicable statutes, " but ~shouid not be
~cused fzom those obligations. "
T~e Hoopa Valley Tribe agrees i~0 days is insufficient to
~.omplete the SEiSr however the Tribe requests federal defendantsI
~otion be denied and the Tribe’s Motion for Partial Stay be
gra~ted instead. Doc. 240 at I. The Tribe contends Mike Urkov’s
decl~ation contradicts federal defendants’ IS month schedule.
id. at 2:7-!2. The Tribe argues ~’federal defendants’ e’v-idence
@stablishes that twice that amount of time will be required to
undertake ~a thorough re-examination of the entire EIS. ’" Zd, at
2. The Tribe claims an SEIS prepared ~nder an 18 month sehedule
is unlikely to satisfy the December Court Order. Id. at 2:14-18.
The Tribe argues federal defe4%dants’ proffered schedule is
house of cards" because it orbits esse/%tial structur~l
necessary fo~ a careful ~/%d thorough E2S/SEIS. I~. at 3. The
Tribe asserts items omitted from the 18 month schedule, but
included in the 36 month schedule, illustrate the IS month
schedule’ s deficiencies:
(i) scoping of project purpose and need; (2)
finalizing new purpose statement; (3) development of ne’~
alternatives (~nd re-development of alternatives ~nalyzed
in Draft SEIS in response to re-defined purpose); (4)
computerized modeling of impacts of both new and.
re-defined alternatives on power reliability,
operations, Trinity fishery restoration and Trinity and
Sacramento River %’ater temperature; (5) development of
preliminary, preferred alternative ; (6) analysis of
2B
!
2
4
5
6
7
9
!0
15
16
17
19
2O
21
22
24
25
groundwater, socioeconomic and other secondary. ~_mpacts ;
and (7) confirming the preferred alternative.
340 at 3 n. 3.
The Tribe predicts plaintiffs will challenge the adequacy of
EPA compliance in ~n SEIS completed under }/xr. Urkovrs 18 raonth
~chedule assumptions. Doc. 340 at 4:3-6. The Tribe also objects
:o an SEIS which includes the integrated nu~nagement alternative,
it has allegedly alread.vbeen extensively a~alyzed. Doc.
340 at 5:12-2!, citing Franklin declaration, Exhibits 5, 6 ~nd 7.
The Tribe ~gues the new range of alternatives ~ndrm%jor
t~DS re.~/ired by the De6ember Order ~may be unneeessaz-y," and
fan inequitable waste of time ~nd resources," should the Tribe
ucceed on appe~l. Doe. 340 at 6-7. The Tribe contends a grave
, jusuice to the tribal ~nd public interest would occur, at the
~se of mea!%ingful fishery restoration, bv allowing an SEIS
I’re-do" to delay the SEIS The Tribe ~ssert;~laintiffs, rights
not the only rights at issue~ as the Tribe’s property, rights
its fishery trust assets Uwill not be protecte~ by adoption of
!8-month schedule at the cost of dmought yeam flow
~t 8.
In essence, the Tribe ~equests the court allo~ the current
SE!S to continue as planned in 200~, without regard to the
Decembe~ I0, 2002 Court Order.
In response to opponents’ contentions that Feder~l
efench~nts’ 18 month timeline is contradicted by its own
onsulltant’s testimony, feder~l def~nd/nts reply: ~Interior...
~as the u!tira~te responsibility to prove_de the directions ~nd
guidance and ensure the project stays on target ~nd on tr~ck.
TD:U.S. DESTRICT COURT TEL MO: 4987~6
1
2
3
6
7
8
9
I0
il
13
14
15
18
2o
2!
24
25
26
27
.Tntenior clearly recognizes that, to comply with the Court’s
~/lings, a revised statement of p~r!~ose and need is required,
along with a different r~nge of ~iternatives." Doc. 358 at 4.
Federal Defendants ~remain confident thlt [the SEIS] tasks can be
~ccomplished within the 18-month sehedu!e." Id. Defendints
acknowledge a revised purpose ~nd need stltement ~will not t~ke
months or years to complete, but can and must be drafted far more
expeditiously." Id. Federal Defendants ~ssert interior need not
\~start from scratch in developing ~ new- set of alternatives, but
c~n driw extensively from the prior KiS, making adjustments as
required to comply %’ith the Court’s order." Zd. at 4-5.
According to Federal Defendants, Interior and its consultants
~have already made substantial proqress identifying the
alternatives to be considered in the SEES." Doc.
Federal Defendants acknowledge its eonsulta/~t’s concerns,
but emphasize their own responsibility for complying with their
is feasible, barrin~ ~ny unforeseen circumstances: ~’Interior has
concl~ded that the concerns raised by the department’s
consu!t~nts and by the Tribe’s declarant do not 9ustify
abandoning the IS-month schedule." Doc. 358 at ~. Federal
defendants c9/~lif.v, however, that the schedule ~is not a binding
mandate," but is ~simply a management tool to assist and guide
the decision-making process by identifying certain ciiscrete tasks
and establishing target dates for completion. "
Federal defendants reject NC.~A’s conditional non-opposition,
and argue the request for an extended SEiS dea~ine is ~entirely
independent of the Court’s decision on the flo~ levels for 2003
3O
032/077 F-08~
~76S~6 P~GE: 32/75
i
2
3
4
5
6
7
9
32
!B
17
20
21
22
23
24
25
27
~d 2004~’ while the SEIS is pending. Doc. B58 at 6. Federal
~efend~nts ciis~g~ee with the Tribe’ s interpretation of defendants
.~otion and supporting declaration that 36 months are rec~!ired to
revise the SEiS and acknowledge they are responsible, not their
=onsu!ting firm, for meeting the court’s deadline. An IS month
schedule will ~’~mpose tremendous demands on Interior, the
zonsu!tants, the interested p~rties, and the pUblic." I~. at S.
~efend2Jats contend the Tribe’s addit±on~l argument, that the SMUD
"alternative" has already been rejected ~nd should not be
reconsidered, is ~rrelev-ant given the court’s December mandate
that ~n integrated manage/uent ~lternative be given a ~hard look"
under ~FEPA. Federal defendants agree with the Tribe’s claim that
the !S-month schedule wi!l do nothing to protect fishery
resources. Federal Defend~n%ts reject 5he Tribe’ s suggestion that
no ch~_nges be made to the SEIS currently underway, pending the
appeal r ~nd obse~-v~ such ~/~ action would ~delay ~ new decision on
flo~s and other elements of the restoration process for at least
three years, until 2006."
Federal defendants clarify the SEiS ~!ll comply with the
December order ~nd include, without li~uitation:
a r~rlsed statement of purpose and need, a different
r~nge of reasonable alternatives, at least one integrated
management ~iternative~ the supplemental assessme/%t of
ESA consultation ~nd ~itigztion measures for listed
species, rand supplement~l analysis of the in~act of the
alternatives on power system reliability, incluclinq the
Northern California electricity m2~ket_ The SEIS will
adhere to the procedures and require/uents of ~TEPA and the
CEQ regulations, including public comment on the draft
SEIS and responses to those comments in the final SEiS.
Feder-~l defendants claim no p~rty seriously challenges an
extension of time is wmrr~uted "at least through July 9, 2004, to
31
IT:57 ~ B4, ~05 ID: U.S. DISTRICT COURT EEL H0:
T-015 P.035/077 F-086
#T63~6 PAGE : 33/T5
1
2
4
6
7
9
I0
$I
12
14
!6
!7
~-8
19
21
22
23
24
25
27
28
9repare in SEIS that responds to the Court’s findings and
¯ .onclusions in the ~4emorandum Decision. " Doc. 3S8 at ~_I. They
,.cknowledge they must \~move expeditiously" to co~ply with the
court order and meet the federal trust responsibility owed the
Tribes.
Federal Defendants present, is their only evidence for the
need of an extension, a decllration from their consultant which
contraciicts defendlnt’s ob%l assertions that a re~-ised SEIS eln be
completed within eighteen months. Defends_hiS’ reply assures the
D~rties and the court that despite Interior’s consuit~nt’s
misgivings, feder~l defendants are ~confident" they c~n meet an
eighteen-month deadline. Yet Defe/%dlnts then qualify that
assurance by asserting that if more than eighteen months is
needed~ defendants will return to the court to ~ask" for more
time. ~t m~y be that the most reasonable approach is to engage a
consultant who wil! assign priority and bring the necessary
resources to belt on the required preparation of .a lawful SEIS in
view of the continuing violation of !a~ in failing to restore the
Trlnity River.
Defendant’s motion to modify the injunction to protrude ~n
18-month extension of time fo2 co~p. letion of the SEES is GPJtNTED.
The 120 d~y deadline is extended until July 9, 2004_ Defendants
ire ORDE!EED to provide the court and plrties ~ith status upctltes,
ivia f~x and u.S. Mail, on June 20, 2003, and January 20, 2004.
~oopa Va!leV Tribe’s ~otion for Partial Stay Pendin~ ADDed!
The Eoopl Valley Tribe ~kes t’#o re.cuests thlt effect the
December I0, 2002, modification of injunction: I) that the S~IS
32
1
2
3
5
7
8
£
lO
l!
"12
’13
!4
15
1’7
20
21
22
23
2~
25
2~
27
28
84, ~Z~gS !D~ U.S. DISTRICT COU£T TEL HO: 49872_26
:urrently unde~ay be stayed pending a_~peal ; and 2) the
injunction, which c~ps releases under the ~±n±ty P~iver
Fishery Restoration Record of Decision at 453,000 acre-feetr be
modified and the ~mount of releases increased.
1. Standard of Review
The Tribe moves to modify the injunction under Fed.R.Civ. P.
62(c) ,~0 and for a stay pending appeal under Fed.R.Civ. P. 62(d)
Yhe Tribe ~rgues the applicable legal standard ~or a stay pending
a~peal is the Ninth Circuit’s "alternative" two-prong test, under
~hich ~n applicant must demonstrate either: !) ~. probability
success on the merits ~nd o~ irrep~r~b!e injury, or; 2) serious
q~estions going to the merits and that the b~l~nce of hmrdships
tips sharply in its favor. Doc. 316 at 3 citing Moo~e’s
Practice ~ 65.22[~] [i] [i] (ed ed.2000) ; l~acker V. Davis, 2~7 F.3d
I~13~ 1117 (9~ Cir.2003) (on b~ac) (citations omitted) ;
~. Ci~ of T~cso~a, 2Z3 E.3d I055, 1060-63 (9"~ Cir.2000). The
Tribe contends a District Court is vested ~with reasonable
disc~etlon when determining whether to grant a stay." id. at 4
FRCP 62(c) states: Uwhen an appeal is taken from an
interlocutory or fZna! judgment granting, dissolvingr or denying
mn injunction,’, a court m~y~ in its discretion, ~\suspend, modify,
restore, or grant an injunction during the pendency of [~nd]
zppea! upon such ter~s as to bond o~ otherwise ms it considers
proper."
~ FRCP 62(d) states: ~’when an appeal is taken the
=-ppellant by giv±ng a su_persede~s bond m~y obtain & stay subject
to the exceptions contained in subdivision (a) of this r~ie. The
bond mmy be gZven ~t or after the time of filing the notice of
~ppeal or of procur£ng the order allowing the ~.m.me~l~ as the case
~y be. The stay is effective ~-hen the supersedes bond is
zpprcved by the court.
33
i
2
3
4
5
6
7
9
!0
1’4
~5
17
2o
22
23
24
26
27
%oR,. ~4, 2~83 ID: U.S. DISTR!CT COURT TZL M0:a9~7226
T-Oi5 P. 031/0~’7’ F-086
;itin9 A & ~f Recordsr inc. V. Napsterr i!Ic., 239 F.3d !004, 1013
9~ Cir.200!) (citations omitted).
SMUD assumes the continuum standard applies, citing Sdaho
]it.2000) . Plaintiffs San Luis and Delt~-Mendota Water
Authority~ Westlminds Water District, and San Benito County W~ter
District (~plzintiffs") , rely on the tradition~l stay test for
52 (c) :
(I) whether the stay applicant has rm&de a stron~
showing that he [or she] is likely to succeed on the
merits; (2) whethe~ the applicant ~i!l be irreparably
injured absent a stay; (3) whether issuance of the stay
~ill st~bstm/~tially injure the other parties interested
in the preceding; and (4) where the public interest
!ies.
l! Wright & ~liller, Federal Practice and Pxocedure, ~ 2904 at
501. Plaintiffs aver that, ~hen determining whether to stay an
injunction, the Ninth Circuit applies ti~.e district court
)reliminmry injunction standard cited in Hock’/ and I~.~ez. Doc.
BSQ at 5. The court must "weiqh[] the competing c!&i~s of injury
and consider [] the effect on each party of the grm!ntinq or
withholding of the requested relief.,, zd. at 6 citing Amoco
(1987).
The NCPA argues ~ule 62(d) (~Stay upon Appeal") does not
apply because it authorizes the court to grant & stay when
~ppellant posts a ~supersede&s bond,’~ which the Tribe has not
ione. The text of 62 (d) allows for posting the bond ~at or aJ[ter
the time of filing t_he notice of appe~l or of procuring the order
&!lowinq the ~ppeal, as the case m&y be. " Fed.~. Civ. Pro 65 (d) .
NCPA contends the Tribe’s motion to modify the injunction and
T-OI5 P.038/077 F-088
1
3
4
6
7
9
Z0
!2
14
16
17
18
!9
21
22
25
26
27
:!lore full ROD flows pe!%ding appeal should be evaluated under the
~our prong ~emm~t~/HiTtom test, ~pplied by the E~stern District
of California court in 1991. Direct ~rket~g .~socia~£om
~. Be~et~, ~991 ~ 32194~ (E.D. C~.1991) ~oting
~ra~sk£~, 48~ U_S. 770, 776 (1987) . The Bereft/Hi!tom test to
~sm~d, mo~fy, restore, or ~t’~ ~ £njunction pen~ng
<Dpeal, ~S identic~l to ~e prel~n~ injunction test cited in
~r~ght ~d ~!!er,
NCPA ~r~es the alte~at~/cont£nu~m test presented by
~r~e w~s rejeet~ in ~ett, ~ch a~o~ledged the exist~ee
Df the ontinu~ test ~outsi~ ~e Rule 6~ (c) conZ~t."
zonten~ the Tr~e has pro~d no c~se lmw applying the
=ontinu~ test to a ~le 6~(e) motion. NCPA cites
[044234 (C.D. Cai.1999) , for the proposition that, ~when
~zs ~not cit~ the Court to ~y au~omi~ jmstifying the
¯ pplicat~on of ~e... [continuum] st~dmrd to ~ zpplic~tlon for
~ injunction p~ng a~eal~ £t should f£nd that
[napplic~le.’ " NCPA’ s inte~meta~on of Bereft is ~spl~ced.
9e~ett ~d not meject ~e alternmtive test; £t applied bo~ the
ira~tional ~d the ~te~mti~ tests to a retest to stay
injunction pending ~ppeal. See Direct ~et~g ~sociahion Inc.
T. Bereft, 1991 ~ 321945 ~t *3 (E.D. ~i.1991]
~e Tr£be re~es~ ~ stay ~nd ~fication of injunctive
~elief. ~The st~rd for e~lu~ting strays p~ng appe~l
si~lmr to that e~loyed by ~strict courts in deci~ng whether
Zo grit a preli~n~ injunction." L~ez v. Heckler, 713 F. 2d
~432, !435 (9~ Ci~.1983) citing Neva~ ~r!~es, Inc.
2
4
5
6
7
i0
!2
14
~6
2O
22
24
26
27
T-015 P.03~/07i’ F-086
@’F6~E5 PP-~GE: 37/75
~In this circuit there522 F.2d i017, 10!8 n. 3 (gth Cir_i980).
~re two intexrel~ted legal tests for the issuance o£ ~
9reliminary injunction. These tests are ’not separate’ but
~a~er r~esent ~the out~ ~eaches of a s~ngle continu~.~ "
Foo~all Lea~e, 634 F.2d 1197, 1201 (gth Cir.19S0) (in~rnal
~ot~tion ~rks o~tted). ~At one ~d of the cont~nu~, ~e
no~ng p~t~ is re~ired to show bo~ a prob~ility of success on
~he meri~ ~d the poss~il~ty of irr~r~le inj~ ....At ~e
9th~ ~d of the continu~, the m~-~ng par~ ~st de~nstr~te
~at serious legal ~estions are r~ised ~d ~at ~e bal~ce of
~r~ps t~ps shelly ~n its fair. !d., c~ting ~s ~geles
05 F.2d at !134. " [T]he rela~ har~p to ~e p~rties" is
Zhe "criti~ el~t" in deci~ng at ~ point along ~e
=ontin~um ~ stay is justified ....In ad~tion.., the p~lic
interest is a factor to be strongly considered." I~. (citations
tt ).
!n ~he Nin~ Cir~t, ~ motion to stay ~ injunction i~
5~uzted ~slng ~e ~lt~nati~ "contlnu~" test; a motion to
~fy ~ injunction is ~lu~ted using ~e tra~t~on~ four
prong ~njunction test.
2) ~ooD~ Valley Tree’s Motion to Stay Dece~er Injunction
that Re~ires Interio~ Mo~fv the SE!S ~rrent!V Unde~ay
~. Prob~le Success on the Merits and the Possibility
of !~repar~le Inju~
I. P~ob~ilitv o5 success on the me~its
The Tr~e conten~ it is likely to succeed on the ~rits of
1
2
5
6
7
9
I0
II
12
14
!7
2O
22
23
24
25
26
27
’[-015 P.040/017 F-08~
its appeal because "I) the EIS did not in fact ~dopt
impermissibly n~rrow statement of purpose and need2 and... 2)
this Court was mistaken in concluding that the EiS did not
consider a reasonable range of alternatives." D~c. 316 ~t 4. The
Tribe asserts the SEIS should not be redefined and restarted now,
as it has been ~underway for over ~ year b~sed on this Court’s
order.’~ Doc. 316 at S. That order was ~n interim preli~n~ry
injunction which was finalized in February 2003, after f~ll
hearing of the merits of the case.
i. Probability of Success as to the
Statement of Purpose ~nd ~eed" Issue
The Tribe ~r~ues that ~ppell~te courts" accord government
~gencies ~eonsid~rable discretion" in defining the purpose and
need of a proposed action project." Z~. citing F~emcis of
Cir.1996) (citing Latham ~. Brimgegar, S06 f.2d 677, 6S3
Cir.1974) ("the preparation of [~n EIS] necessarily c~lls for
~udg~_nt, ~_nd that jud_crment is the agency’ so ") ) The Tribe
zontends ~th~s Court misinterpreted the specific statutory
context giving rise to the need for the proposed action,
hence unduly intruded on Interior’s discretion to define the
purpose of that action." Doc. BI6 at 5.
~’bro~der purpose" to the proposed action, which would encompass
exa~ninlng ~n integrated mmnmgement progr~/.% combining increased
flows with non-flow ~easures. Doc. 316 at 5. The court’s
comments that ~CVPIA specific minimu!n flows and direction to
37
Apf-u(-ua u--,:4iam From-
18:@I ~PR ~4, ~3 iD: U.S. DISTRICT CO~T TEl. NO: 4~8T~5
T-015 P.041/077 F-086
-f-TB ~---r-&6 PIqC-E:
!
2
3
4
6
7
9
12
13
16
17
!9
2O
22
24
25
27
ford/late permanent T[rinity] R[iver] restorztion flo’~s and TRD
~perating criteria, hake preeedencer’r therefore, contradict the
court’s conclusion that the E!S ’\should have nonetheless been
guided by ~the more general !~ng~age in 1984
According to the Triber ~’the citation to the 1984 ~ct in the
introductory phrase of ~ 3406 (b)(23) does not govern the scope of
the ~gencyrs proposed act±on." ~. The Tribe contend~ Znterior
was specifically tasked by Congress "to implement one particular
method, n~mely increased ’instre~m ... flo~ requirements,’"
inferentially, to the exclusion of ~ny other consideration. Z~.
This contention was fully considered in the dec~is~ons that gave
effect to all the statutory provisions c~llin~ for TriDity River
restoration.
The Tribe ~iso argues the December Decision ~gives
insufficien~ credence to the statutory scheme’s concern with
restoration of the historic fisher~ resource, rather th~n merely
~ith stock a~ent~tion by ~tificial meal~s." Do~.
Support, the Tribe c~tes multiple references to ~’naturally
reproducing runs" in the C~P~A. See Doc. 3!6 at 6:26-28,7:1-4.
The Tribe also cites to the ~996 Amench~e/%t of the 1984 Act, ~hich
~clarif~ed the importance of n~turally reproducing runs and
limited role of hatcheries under the 1984 ~ct," stating:
Section 3(c) of Public L~w 104 - ~43 ~mended
section 2 (a) (I) (C) , directing that the Trinity R±ver
Fish ~tcher~ ~e managed to: ~best serve its purpose of
mitigation of fish h~bitat loss above Lewiston D~n,
while not ~rspairing efforts to restore and nu~intzin
n~tur~l!y reproducin~ an~dromous fish stoc.%~s with±n the
basin. ’
Doc. 356 at 7 citing II0 star. 1339 (1996).
The Tribe further disputes the court’s determination that
:~!,?63£6 PAGE: 4B/75
l
2
3
5
6
7
8
£
I0
12
!4
I_5
16
17
18
2O
22
23
24
25
26
27
28
habitat re#rotation within the tributaries, not simply the
.~ainstem of Trinity, be exam&ned. The Tribe contendL~ this
interpretation is incorrect because Congress chose to mandate the
~se of instream flows ~to restore the physical a/%d biological
attributes of the pre-TRD mainstem." Dec. 316 at 8 citing CVPiA
~ 3406(b)(23)(A). The Tribe contends ~’other actions throughout
hhe Trinity basin address other aspects of fishery restoration,"
therefore the current purpose and need identified in the
meason~bly focuses on "but one piece of [the] puzzle." D0c. 316
at 8:12-28.
The Tribe argues the court misinterpreted CVPIA ~ ~ 3402(f)
and 340603) to requ.±re Interior balance fishery restoration goals
against the needs of other CV~ ~ate_~ users. Doe. 316 at S. The
Tribe maintains Trinity Basin fish and wildlife needs take
precedence over the needs of ~-ny other CVP water users and cites
to a 1979 Interior Department Solicitor’s ±nterpret&tion of
Section 2 of the &955 Trinity River Division Act:
[!]n authorizing the Tr±nityRiver Division of the
CV32in 1955, Congress specific&!ly providedth&t in-basin
flows (in excess of a statutorily prescribed minimum)
determined by the Secretary to be necessary to meet
in-basin needs take precedence over needs to be served by
out-of-basin diversion
Congress’ usu~l direction that the Trinity River
Division be integrated into the overall CV~, set forth at
the be£rinning of section 2, is expressly modified by and
made subject to the provisos that followed giving
specific direction to the Secretary reg,.titling in-basin
needs.
Dec. 316 at 9:11-18 citing M~morand~ from the Solicitor to
Lssist~nh Secret~ry--L&nd and ~ter Resources, Proposed
~ontzact with Grasslanc!s Water District, 3-4 Dec. 7, 1979).
The December decision did not ’~require" Interior ~to
3£
i-u~ r.u4~iuCf r’-OB6
DISTRICT COURT TEL HO:
i
3
4
5
6
7
9
10
l!
26
17
is
20
22
24
26
27
balance" ~ny such interests. I~ather it found unreasonable
Interior’s choice not to include ~n alternative that
considered whether Trinity River restoration could be
accomplished while minimizing harm to other CVP interests
and other CV-9 service ~eas, and the environment.
The Tribe simply re~rgues the points it advanced on summary_
jndgment and now quarrels with the ~n~lysis that underlies the
decision, in what is ~ de facto motion for reconsideration.
These arguments were closely ~nalyzed, evaluated and rejecte~ in
the 14B page Memorandum Decision~ December 20, _~002. The Tribe
disagrees with the court’s statutory, interpretation, yet offers
no new c~se law or facts to justify reconsideration or to support
the finding it is likely to ~ucceed on the merits of its appeal.
The szrbstantlve legal issues do not favor stmying the injunction
in view of the threat to other sp. ecies in the Delta.
il.Probability of Success as to the
~ETS ~anqe of Altern~tives" Issue
The Tribe asserts it will succeed in its aI~pea! regarding
the decision that ~nterion did not assess a sufficient r~nge of
alternatives, because the court ~i~prope_rly focused on the nLtmber
rather than the range ~of alternatives ~luated. " Doc. 3~6 ~t
iO. The Tribe argues that hTRPA ~does not requ~xes [sic] that
evenly conceiv-~ble ~lternative be considered; rather, the statute
requires that the agency consider ~n adequate range or spectrum
of alternatives. ’~ _T4, This disagreement ~ith the court’s
conclusion is no more th~n argument. Not to consider an
alternative that sought to evaluate if the river restoration
40
i
2
3
4
5
6
7
9
i0
II
12
!3
15
16
17
$8
2o
22
24
25
27
P~R ~4, 208~ ID: U.5. DISTRICT COURT TEC NO: 4987E~-6 #75325 P.qGE: 4~,,’75
co’dld be accomplished while ~naging f!ows to also mitigate harm
to all cirp constitnents is categorically unreasonable.
The Tribe contends the EiS explored an appropriate range of
~iternatives. The preferred alternative, which ’~incorporates ~
:ange of restoration activities, including a var!~b!e ~nnual f!o’~
regime, mech~nic~l channel rehabilitation; sediment m~nage_ment~
... [and] mitigation measures on top of the panoply of hatchery.
and hm~-v~st m~nage/~ent programs ~izeady in existence.., is
inherently an integrated management approach." Doc. 316 at
10:28-22, ii:i. According to the Tribe, "this Court imp. roperly
substituted its judgment for that of the agency in concluding
that some other package of actions would present a more
appropriate integ~zated alternative." The December Decision
~tates :
Section 1502.14 of the CEQ regulations r~quires
agencies to ~ [r]igoro~sly explore and objectively
evaluate all reasonable a!ternat~ves,’ to include a ’no
action’ al~ernative~ and a preferred alternative.
However, age/%cles are not required to include ~every
~iternative device ~!Id thought conceivable by the mind
of r~n.’ [Citation or~itted]. ’The range of
alternatives that must be considered ~n the ~.IS need
not extend beyond those reasonably related to the
purposes of the project.’ [Citation omitted].
When determining whether a reasonable r~nge of
alternatives ~as considered, the ’touchstone’ is
whether the EIS’s ’se!eetion and ciiscuss±on of
~iternatives fosters informed decision-making and
informed public p~rticipation.’ [Citation omitted].
NEPA does not require the consideration of
~lhe_~nati~es: whose effect cannot be reasonably
ascertained; whose implementation is remote or
speculative; which ~re infeasible, ineffective, or
inconsistent vith basic policy objectives; or which are
not sign~_fic~ntly distinguishable from altern~hives
actu~lly cons±dered, or; wh±ch have substantially
sirailar consequences. [cih~tion omitted] . However, ’~n
agency c~!%not def±ne its objectives in unreasonably
narro~ terms’ to r~strict the range of reasonable
alternatives. [Citation omitted]. The ’rule of
41
1
4
5
6
7
9
I0
li
17
iS
20
2!
22
26
27
28
APR 84, ~8~3 ID: U.S. DISTRICT COURT TEL M0:~987~6
T-015 P.O45107T F-O~6
reason’ g~ides both the choice of alternatives ~nd the
extent to which ~n EiS must discuss each alternative.
[Citation omitted] ....
Interior has discretion not to use [certain]
measures as stand-alone alternatives; however,
Plaintiffs are correct that Interior did not t-~ke a
hard look at, or consider in-depth, a f~lly integrated
management alternative that reduced v~rilble flow
increases in conjunction with other management
prescriptions. Because NEPA requ. ires fair
consideration of reasonlble (feasible) alternatives,
including discussion of the alternatives and opposin~
viewpoints, to avoid undue narrowing of the means of
achi~vinq the purpose of in ETSr an SETS should have
been prepare<i. [Citation omitted].
Dec. 30S at 9S-10I.
The Tribe unfairly characterizes the decision, is it did not
conclude that ~som@ other package of actions" wc~id ~\present a
~more appropriate’ integra~d alternative. ’r The Decision
concluded the alternatives ~nlmined in t!%e EIS did not satisfy
hr~PA, pri~llri!y because the nlrrowly defined purpose focused on
m!xim~lm ~lo~s ind _~ave no consideration whether a combination of
other measures would pez~nit reduced flows to accomplish the
statutory objective. Tn sum, i reasonlble ~nd meaningful
alternative to restore the fishery while mlnirmizing adverse
impacts on the rest of the CVP, was ignored.
The Tribe cites !~ootema~ Tribe of I~£alio ~. Veziemazi, Nos. 01-
35472, 01-35539, 02-35476 (9~ Cir. Dec.l~, Z002), Slip Op. at 41,
for the principle that an ETS ~is not inadequate for failing to
consider alternatives that are less restrictive of development
interests.., when the purpose of in action is environmentll
conservation or restoration."Doe. 316 at 22:4-9. .~he relevant
Koote~ai Tribe dicta states:
The N~-PA alternatives re .quireme/it must be
interpmeted less stringently ~hen the proposed agency
42
18:84 ~ ~4, 28~13 TD: U.S. D~-STP,.ICT COURT TEL. MO: 498T?.26
T-Of5 P.O4I~/OT7 F-OBB
i
4
5
6
7
i0
II
12
14
16
17
21
22
23
24
27
action has a pr±ma~ and eentra! purpose to conse~-~e ~und
protect the naturll environment, rather thin to harm it.
Certainlyr it was not the originll purpose of congress in
N~PA that government agencies in advancing conse~xration
of the environment must consider alternatives less
restrictive of developmental interests. See 42 U.S.C.
~§ 4231 et s~=<:!.
[G] iven that the conservltion and preventative goals
of the Forest Service in pro~/lgatin~ the Roadless Rule
are entirely consistent with the policy objectives of
N~.PA, [footnote omitted] as well is %-ith the Forest
Service’s own mission, [footnote omitted] it ~o~ld turn
N~.PA on its held to interpret the sta~/te to require that
the Forest Service conduct an in-depth analysis of
envi rorsnenta!ly diTnaging ~ulternatives that ~e
inconsishent ~ith the Forest Service’ s conservation
policy objectives. [Citation omitted].
l{ootemmi T_~i~e, 02-34~72, 01-35539~ slip op. at 36, 40.
Tn ~ootenai Txi~e, the Forest Service included three
alternatives in its EIS prior to establishing the Roadless Rule.
All three alternatives encompassed a near total bin on road
construction wi~hin identified "roadless" forest acreage. The
Forest service’s policy objective in promulgating the rule was
to: ~prohibit[] activities that have the greatest likelihood of
degrading desirable characteristics of inventoried roadless ideas
and [to] insur[e] that ecological and socill charlcteristics of
loc~_l land minage!~ent planning efforts. " !~oo~enai Tribe, slip
op. at 37.
~oohenai Tribe is inipposite; all three alternatives
considered by the Fomest Service were viable and comported with
the ~!id pu.~pose of. t_he Send-ice’s proposed rule ~nd
environmenta! conservation policy.. The alternative the decision
inv~!idated actually violated NEPA. Eere, the pu~p. ose of the
43
2
6
7
I0
Ii
15
17
~P£ @4, ~80~ ID: U.S. D[ST~,ICT COk~,T TEL MO~
ROD’s EIS itself has been ruled invalid because it was too
narrowly defined, in violation of IT~PA, ~nd the ~lternative
selected has ~ajor impacts to the environment which "were not
reasonably analyzed. T~o of the three Trinity River Restoration
alternatives ~ere not considered viable; two were ~extreme
alternatives" which p~edeterTained the maxir~u!~ flow "mltern~tive."
In 1{ootenai T_~i~e, environment~l concerns were not presented on
both sides of the issue ~s they ~re her~.~ Requiring Interior
comply with NE~A and conduct in-depth ~n~lysis of an integrated
rm~n~ement or other viable ~lternztives does not utu_~n ITEPA on
its head," nor does it direct ~in-depth analysis of
environmentally damaging alternatives ... inconsistent" with the
Trinity River Fishery Restoration mandate encompassed in ~VP!A
~ 3406 23(b). To the contrary, it c~l!s for analysis of
potentially damaging environmental consequences in the Sacramento
Delta and River that have unreasonably gone unconsidered.
Plaintiffs contend the Tribe asks the court to reconsider
its su~mamy judgment mulings, but does not meet the standard for
2O
21
22
23
24
26
27
reconsideration. The Tribe revisits its sure, amy judgment
~rguments to support its motion for a stay, not for
reconsideration_ Plaintiffs claim the Tribe’s ~conclusory
~2 See Doc. 30~ at 61: Uwhether a m~Jor change in CVP
operations will further directly impact South-of-Delt~ water
users through increased upstream releases ~nd reduced Delta
pumping, or will impact other e/%vironment~l program~ or species
through the use of the limited (b)(2) wmtez account, remains
undete/zmined .... Whenever ~__ water is diverted to ~ dlffere~t
use, an impact is eA~perienced throughout the system. The effects
on the Preferred Alte_~n. ~tive from the X2 F~M pose pote/%tial
unqu~ntif£ed but significant ~nvirop/nental ~nd other
consequences."
44
18:~S ~PR 84, 2~L3 !D: U.5, DISTRICT COURT TEl_ HO: 4987226
T-O15 P.O48/OTT F-086
#75326 PAGE: 45~"75
1
3
4
7
8
9
I0
&2
13
!4
16
17
2o
21
22
23
25
26
27
28
assertion that it is likely to win its appeal, because the ’court
incorrectly failed to conclude that further NEPA review is
irreconcilable with the m~n<i&te of C~-PIA ~ 3406(b) (23)’ is no
more persuasive now than it was before." Doco350 at 8
Plalntiff-Intervenor SMUD strongly opposes & stay.
3oints out the Tribe meets none of the factors justifying a stay.
SMUD contends the only result of & stay "would be to further
delay the completion of & valid SEIS and further delay the
secretary’s &bi!&ty to mzke & ~ralid decision regancling flows in
the Tr±nity ILivex." Doc. 330 at 2. SNOD argues that because the
Dece/aber Decision ’is ~firr~ly grounded in the facts of this case
~nd consistent with federal ~TEPA law, the Tribe is highly
unlikely to con’~ince the l~inth Cir~u/it to reverse this Court’ s
decision." Zd. at 4. S~JD revisits each of the Tribe’s
arguments, a!~d points out that they have alrea~_v been considered
a~.d 2ejected on summary, judgment, fd. at 5.
Pl~intiff-!ntervenor NCPA contends the Tribe has not made
strong showing that they are likely to succeed on the merits as
the Tribe ~’offer[s] nothing more than a regurgitation of the
arguments previously m~de in their motion for summary judgment
~nd in opposition to that of... SMUD." Doc. 351 ~t
The Tribe’s redly reiterates its dispute with the court’s
decision re~arding t~.e adequacy of the EIS. Plaint±ffs and
IPl~-intiff-lntervenors &re correct; the Tribe presents nothing ne~
lothe~ than ¢iisagree/nent with the sur~n~ry judgment decisions m~de
on the substantive la~ issues interpreting the relevant
e/~vironmental statutes.
45
1
2
3
4
5
6
7
9
I0
12
15
16
17
2o
22
23
24
25
26
27
PPR 84, ~£1~B ID: U.S. DISTRICT COURT TEL MO~ 498V~6
2. Possibility of !~reDar~ble in~
The Tribe confiates its ,~st~y" ~rgurnents with its ~rg~ments
to ~odify the injunction to ignore the flow release cap. The
Tribe’s arQ~!ments reg~rdin~ ~irrepar~b!e injuz-f" center solely on
its perceived need for a modified injunction that increases the
water flows to ROD levels, pendin~ the outcome of its appeal or
SEiS completion.~ The Tribe offers no argument ~s to how it
will be irreparably injured if its Stay request is denied.Flows
have not been ~t "~OD levels" in the Trinity ~ver since
construction of the Trinity Unit. The Tribe claim~, without any
evidentiary support~ that ~ny addition~l SEIS analysis and
modeling ~will cLiscard the product of nearly two years of work on
~n SE!S and t~ke additional time and resources a~ay from Trinity
restoration." These actions will ~further damage the Tribe’s
property rights in its t~/st asset. " Doc. 3!6 at ~4. A stay is
re.~aire~, ~to avoid further expense and delay," the Tribe argues
’~it is imperative that the Department of Interior ~nd other co-
lead ~genc±es not be forced to start new extensive and
compli~ted ~nalyses that may be deemed unnecessary on appeal."
Doc. 316 at I.
Plaintiffs contend the Tribe’s motion for ~ stay, based on~
the premise that the revised SE~S might be deemed unnecessary
~ter appe~l, is foolish because it risks ne~ delays in carrying
out fishery Restoration. Doc. 350 at 9. Plaintiffs contend
that, were the SEIS process to go forward~ "f!~wed as it is," and
~ere the Tribe to lose its appeal¯ the process wo~!d be at square
This motion is discussed ±nfra at 51-52.
46
1
3
4
7
I0
12
16
17
23
24
~PR 8a, ~_~ ID: U.S. DISTRICT COURT
T-Of5 P.O50/OT"Z F-08~
one and ~that much further behind ~[here it needs to be for a
la~’ful, effective fishery Restoration p~og_~ to occur. " Doe.
350 at 9. ~If the actual SEIS is limited to those narrow issues
described in the March 25, 9_002, 1fOP, the United States will
break its promise [to complete an SEIS], violate NZPA ~qain,
3eopardize f±sh~_ry Restoration efforts, and invite continued
litigation." I~. at I0.
The record shows that the ~nlaw~ully narrowed alternative
and ZiS puz!Doses are the result of bad fmith tact±cs by Trinity
County. Plaintiffs point to the Tribe’s prior continmous efforts
to ~subvert the NEPA process by demanding a truncated SEIS" and
suggests the Tribe ~c~aunot now be heard to complain that the
court’s summary Jud_mment decision must be stayed ~to avoid
further expense and delay’ by Interior being ’forced to st~urt new
extensive and complicated ~nalysis., -Id. at 12. Plaintiffs
accurately note a stay is a form of equitable relief that
requires cle~_n h~nds. A p~ti~! c~use of the illegality of the
EIS ~nd ROD results from the unclean hands of Trinity County,
which aided the Tribe in unreasonably n~rowing the purpose of
the FEIS.
Plaintiffs note that Interior ~nd the Tm!be wexe on notice
that ~ n~rrow F~IS ~would not cure the origin~l EIS’s
inadequacies, would invite further litigation and ultimately
would delay fishery. Restoration. TM Zd. at !3. Plaintiffs contend
this F.nowiedge makes it inequitable to impose upon plaintiffs ~nd
Pl~intiff-Intervencrs addition~l irreparable h~tuu by issuing a
stay of the court’s injunction requiring a modified SEIS.
Plaintiffs accuse the Tribe of requesting a stay ~s p~rt of its
47
!
2
3
4
5
6
7
I0
12
13
15
17
19
2O
21
22
23
24
26
27
DISTRICT COU~T ~ M0:4987~6
i-Ui5 P.OSIIO~? F-086
~onqoin~ strategy to prevent the development and consideration of
restoration ~!te~atives to the dyn~c all~vi~ river approach
reco~ended." Doc. 3S0 ~t 13.
Plaintiff-Interior S~ does not ad~ess the irrepar~ie
inju~ prong, ~c~t to note ~at ~ stay would allow Int~ior to
go £o~d ~i~ ~ !eg~!iy insufficient SEIS~ ~-hieh ~ould ~only
furthe~ exacerb~ the delay of which the Tr~e itself
collins." Z~. at 12.
NCPA asserts the Tribe has failed to d~mo~trate ~y
i~repar~le inju~ ~in ze~iring DOi to co,fete ~e SEIS
r~ir~ by the Order." Doc. 3S~ ~t i0. NCPA ~sserts the
co~letion time ~fference betw~n the narrowly scoped SEIS and
the broader seoped SK~S is a ~tter of monks (~ring, 2004 vs.
~!y, 2004) and the~efoDe, ~he Tr~e c~ot possibly show
irr~r~le ~. Doc. 351 at !0. The Tr~e rejoins ~at
re~iring f~ral defen~ts to reuse ~e EIS ~rr~y ~dezw~y
wastes resources which could oth~’ise be ~devot~ to other
~ects of ~e ~ishe~ nestoration pnog~." Doc. 360 at 4.
¯ he T~e hzs not sho~ ho~ it will be irr~az~ly h~ed if
z s~y is not issued ~d Xn~rior goes £o~d w~th a ~fied
SEIS to co~ly ~ith ~e la~. Th~ flo~s allowed have pre~ously
be~ repres~ted by ~e Tr~e to be sufflci~t to avoid
irrepar~le ha~_ Moreo~r~ no aff~t is s~tted ~ s~y
~ch flo’~s ~ill cause irr~le h~. The b~l~ce of all
restoration measures ~e going forward. The Tr~e~s cogent ~at
the ~tion~ work re~ired "will ~sczrd the product of nearly
~o years of work" is bo~ inaccurate ~nd ~sle~ng. Federal
48
1
2
3
4
6
7
8
9
&0
I!
13
14
~5
17
19
2o
21
22
24
_05
27
z~R @4, ~5~@3 ID: U.5- DISTRICT COb~T ~ M0:49B72~6
defendants have stated the existing SEIS will not be scrapped; it
will be fully utilized and expanded upon. The Tribe’ s
conclusion that an SE!S complying with the court’s order will
"take additional time ~nd resources away from Trinity
restoration" and will ~’further ~am~ge the Tribe’s property rights
in its trust asset" is completely unsupported by any sho~ing that
any resource conuuitted to Trinity River restoration ~’ill not be
devoted to that purpose. The only ~estoration mezsures not being
irmple/uented are the ROD’s flow regime. The flow regime
undeniably threatens environme!ut~l harm to the Sacramento Delta
and P~iver, t~hat has not been lawfully evaluated nor reasonable
rnitigation alternatives given the hard look an EPA requires.
The Tribe has not met the stay or modification requirement
to show a ~combination of probable success on the merits ~nd the
possibility of irrep_ar~ble injuz~i_ "
B. serious Lena! .Questions are not Raised; the
B~!ance of HardshiDs Does Not TiD Sh&rD~y in
Movin~ Party’ s Favor
l) Serious Lena! Questions
The Tr~e ~~ly ad~esses ho~ ~serious legal ~estions"
are raised by its Motion to S~y the Decker injunction
~ndating federal defen~nts z~se the SEIS. ~e only
ac~owl~t by the Tr~e that it must meet this stan~d is
the eoncluso~" s~t~ent: ~these l~al challenges @e~ ~rect!y
co~lete Interior’s ongoing SEIS on ~e Trinity ROD ... The
Tribe’s ~ppe~! presents serious leg~l ~estions upon which the
49
1
2
3
4
6
7
I0
I!
!2
!3
14
15
16
17
18
19
20
21
25
26
28
0g:4gam From-
84, 2@8S ID: U.S. DiSTRICq" COURT TEl_ NO: 49~°7~26
Tribe has a significant probability of success." Doc. 316 at
: 15-18.
Neither SI~ETD nor the plaintiffs address this prong. NCPA
Jc£n!es the Hoopa ~’have not shown any dispute among courts or
~_ommentators reglrding the propriety of artificially narrowing
the statement of pu!-pose and rlnge of alternatives considered
~nder NE~A." Doe. 351 at II. No difficult question of law is
presented. The requir@ments of NEPA and the ESA are
straiqhtforward. The record below shows the deficiencies in
£nterior’s process and the mot±b~s that drove the agency to a
most hoc rationalization justifying in illegally narrowed purpose
;o meet a time deadline.
The Tribe’s r~ply improperly places the burden of proof on
its opponents a/~d claims that plaintiffs have not demonstrated ~
absence of substantia! questions going to the merits of the
order. Doc. 360 at I. The Tribe’s reply suggests its
disaqreement with the outcome of this case is sufficient to
cre&te "serious questions of law." Doc. 360 it 2.
Balance of Hard-biDs
E~ne Tribe’s focus on the balince of hamdships centers
entirely on modification of flow releases ~bove the present cap
of 453,000 acre-feet until the SETS is completed. The Tribe does
not address ho%- the balance of h&rdships requires a Stay of the
December injunction that orders Interior to revise the SETS to
comply ~ith b-~PA.
Neither SMUD nor the p!~ntiffs address this prong. IqCDA
&r£rues the balance of hardships do@s not tip in favor of in
50
~PR ~, E~3 ID: U.S. DiSTR~CT COLP.T TEL NO: 4987~
T-g15
2
3
4
5
6
7
8
9
$0
!2
15
16
17
18
!9
2O
21
22
23
24
25
26
27
28
unlawfully narrowly-scoped SEIS (the status .c~!o) because the only
hardship cited by the Tribe is delay. The delay ±n repi2eing &n
unduly narrow to fair ~d reasonab!y-scoped SEZS, after a Hoopa
loss on appeal, is much greate~ than a posS!~!e delay of having
the sEIS go forwardI as ordered in December. Doc. 351 at Ii.
NCPA points out that the public interest in the environment is
harmed if the court allows Interior to violate ~CEPA and the KSA
by implementing an illegal ROD.
The Tribe’s reply contends the bal~nce of hardships tips in
its favor because, should it prevail on appeal, the government
will have wasted time in revising the current SKIS. The Tribe
argues that should it lose on appeal, ~’any delay from the
issuance of a stay pales in comparison to the delay that
necessarily will result from the expansive scope of the SETS
contemplated by plaintiffs, which ca/Lnot be completed before
2006." The federal government acknowledges the SETS completion
cannot be delayed until 2006. More harm will be caused by a
stay. Significantly more time will be lost (at least a year or
more in the appellate process) if Interior proceeds with its
current SETS and the Tri2oe loses its appeal. At that point,
Interior wi!l be required to start the SKiS process over to
comply with the law. In contrast, if the Tribe wins on appea!
the work on the SEIS will have been completed or will be in its
final stages and the info~ation generated will directly ~id
interior in protecting the entire environment served by the C~P.
lhe Tribe has not shown how the b~l&nce of hardships favors
raying the injunction, this factor weighs against gz~ntin_~ the
ray.
51
T-015 P.055/077 F-086
!
2
3
4
5
6
7
9
I0
!2
13
14
!5
16
~7
18
20
21
22
23
24
25
26
27
APR ~4, 200B iD: U_S. DISTRICT COURT TEL HO: 49~?726
~he Tribe has not met the alternative test to demonstrate
comb±nation of serious leg~! questions with the ba!ance of
hamdships tipped sharply in its favor.
The Hoopa Valley Tribe’s Motion to Stay the December
Memorandum Decision requiring that interior modify and com£Dlete
~n SEIS to comply with NEPA is DENIED.
b) Hoopa Valley Tribe’s Motion to Modify the Injunction Re
~.00B Flow Releases
A motion to modify an injunction is evaluated using the
traditional four prong ~ngunction test, which.requires plaintiff
establish:
(I)a strong likelihood of success on the merits;
(2)the possibility of irreparable ±njury to the
moving p~ty if the injunction is denied;
(3) the balance of hardships favors the movingparty;
(4)the public interest favors gr~nting the
injunction.
i)A Stronq Likelihood of Suoeess on the Merit
Were the Tribe to succeed on ~Dpe~l, the December Order
enjoining flow re_leases exceeding 4S3,000 AF (~dry_ year"
conditions) pending ~ revised SEIS would likely be dissolved and
the existing ROD ir~lemented. This result would ~llow for flows
in 2003 commensnratewith the ROD water year type designation.
The Tribe contends that, because it is likely to succeed on
appea! ~nd because ~ny release less th~n a ~wet" or "wetter year"
flow would damage fishery restoration efforts, the injunction .
should be modified to allow for the ROD ~ater year- _type release
in 2003.
~iven the curr~nt sno~ack ~nd forecast data, the Tribe
52
18:!1 A°R 8~, 2~3 iD: U.S, DISTRICT COURT TEL MO: 4987226
1
2
4
5
6
7
I0
12
16
!9
2O
21
22
2B
24
25
26
27
expects 2003 to be designated ~’wet" or ~wetter" by the Carifornia
Department o£ Water Resources. Doc. ~16 it 1-2 citing
Declaration of Scott McBain. Accumulated inflow into Trinity
~eservoir as of Januarr" 13, 2003, was 154 percent of the 15 ye&r
average and storage in Trinity reservoir at that time was Ii0
percent of the 15 yelr average, boc. 316 at 2. Plr. McJBain
predicts 2003 "will be at least noz~l, and most iikely wetter
thin normal. " Doc. 318 at 2. Mr. Me_Bain opines:
As of January 14, total precipitation in Readin~
wls at 148% of average (is measured from July I, 2002
to Janulry !4, 2003); precipitation in Eureka was at
156% of average (as measured from July Ir 2002 to
january 14, 2003) [citation oraitted]. Triraity
Reservoir storage as of January. 14, 2083 was 98% of
average and 69% of c<Dacity. The water content of the
Northern Sierra Nevld~ SnoVrpack is 23.4 inches, which
is 173 percent of average. [citation omitted]. A map of
snowp~k in the ~eshern United States as of January i,
2003 produced by the NOAA sho~s the Trinity mountlins
at over 1~0% of normal. [citation omitted]
By way of comp~ison, water year 2002 was ll0% of
normal for the January forecast, and becluse the
Eeb~uary -- A~ril 2002 period ~as very d---~r the actual
overall runoff volume r~duced to only 85 percent of
normal. Th~s ~esulted in a NORMAL water year based on
the Trinity River Mi~InstemF~shery ~estoration Record
of Decision (ROD) water yeam classification
methodology.... ~ater year 2002 was slightly dryer by
this time than current conditions, and even though the
r~Inlng four months were ~nusually dry, the resultin~
w~ter .year was still a NO~d~AL year. Therefore, beoluse
the predicted runoff v~lume for 2003 is lal~ger than any
of the last five years (four of those five years were
NORNAL, WET~ or EXTREFIELY WET ~ater years), the
corresponding water year ~ill almost certainly be at
lelst be [sic] a ~OPJC~AL year. If precipitation remains
ne~_~ normll through April, the corresponding water
designation ~ould likely be in the~Y~T category. If
precipitation decreases s~bstlntiillyr than the water
year designation ~ould likely be in the
category, and if precipitation maintained at higher
thin normml levels as has occurred during October -
December 2002 period, the ~ater yesm designation would
likely be EXTRE~ZELY wet.
Doc.318 at 2-4. Later clinu~tic conditions prove these
1
3
4
6
7
I0
13
~4
21
22
23
24
27
A°R 84, ~83 ID: U.S. DIST~!CT C0b~T T~L M0:49BT~6 #?6~& PI~GE:: 55"?5
opinions to be inaccurate.
Chester Bowling, Operations FL~n~ger for the Bureau of
Reclamation, expects 2003 to be a ~’wet’~ water year ~under
existing conditions. " Dec. 362 ~ 4 at 2. According to the
TrY_be, ~t a minimum, ~’the water year designltion will likely
be normal." Dec. 316 at 2. _~his has changed, ~s of Ma~eh
18, 2003, the wlter ye~u~-type is norml_l in northern
reservoirs and below norm~l in the southern r~servoirs. The
Tribe argues the injunction capping flows to ~ m~xiraum "dry
yelr" designation (453,000 A_=) when 2003 is predicted to be
~eh or wetter tinder the ROD, ~underm!nes the legislative
mandate [sic] restoration and damages the Tribe’ s property
and trust interest in a restored fishery."
The Tribe is unlikely to s~oeeed on its appeal to prevent a
rev~_sed SEiS which complies with REPA. Until the re~-ised SE!S is
complete<i, potential significant environmental impacts related to
the ROD’s designated ~ter year flow releases is at best unknown,
~nd likely to produce adverse impacts. The Tribe’s reply
p~ovides no new arguments why it is likely to pr~±l on appeal.
b.PossibilitV of Irreparable Injury to the Movin~
Party if Injnnction is Denied
The Tribe contends low flows in the Trinity and ~l~th
syste/as \’were a contributing cause of the September 2002 fish
kill" in the Kl~ath River. Doe. 316 at !~ citing declaration of
Earry Rectenwald. According to the Tribe~ ~’over half of the
total fish killed in September of 2002 ~ppear to have b~n of
54
55/75
!
2
3
4
5
6
7
8
9
l0
!l
i3
14
I_5
16
17
18
19
2o
2&
22
23
24
25
26
27
~’protection of the progeny of the survi~n~ spa~ners of 2002 is
of paramount i.~porh~nce to the ra~intena/uce and restoration o£ the
fishery." Zd. The Tribe submits Michael Or~utt’s declaration to
support its argument that there is a ~critic&l need for optimal
conditions in 2003 for the survival of the progeny of the
depressed 2002 chinook, coho -~uns."
~ir. Orcutt, Director of the Eoopa V~lley Tribal Fisheries
Department, provides a lengthy history of: the Tribe’s right to,
~nd cultural ~se of, salmonid fish stocks; the wel!-known decline
of Trin±ty P~iver fisheries and its impact on the Tribes; and the
urgency of ~estoring ESA listed Trinity River eoho. Fir. Orcutt
opines Trinity ~iver fall chinook populations increased in 2000
and 200!, compared to 1999, but drastically decreased in 2002.
Doc. 321_ ~ 13, i4 at 6. Because of this decrease,
it is critical that the progeny of these fish
e_~perience optimal growth and s~rviv-a!~ conditions. This
year’s relatively depressed returns of ~ll Chinook
coho salmon, must be allowed to realize its potential
~-ith good re~ing and smelting conditions for their
progeny, zs provided b~ the ROD’S flow recommendations
in 200-~, the 2001 brood year will be ~igrating downstream
~nd 2002 progeny will be re~ring.
M_~. Orcutt asserts the ROD stream flow regimes represent
"the best available science" to restore the Trinity Basin fish
populations. The ROD’s temperature and flow targets for
cr±tic&l!y dry. and dry years,
pro~£de MARGINAL water t~per&tures for juvenile
a!ud smoit outmigxation. Perpetuating additional
continuous years of ~ARG!~ ~ater temp. erat~res will
not recover the fishery ~s mandated by law. Extending
low flow condit±ons into next year is ad~oting & policy
that condones salmon popul~tion decline. Normal and
wetter water years provide flows to achieve OPTIPLAL
~5
2
3
4
5
6
7
8
9
13
14
17
18
19
2O
22
23
24
o_7
~-~R ~4, ~883 ID: U.S. D!ST~.ICT COL~T TEL NO: 4987~26 876326 PAGE: 57/75
water te!nperatures, and will provide significantly
better juvenile and smolt outa~gr~tion su~vi’~l.
Furtherr no~l and wetter year ~OD stream fl~ws
provide necessary, water to on,iDle long-termstream
channel changes ~hich help establish fishery h~bit~t
for subsequ~ent ~enerations of fish arising from progeny
of the depressed 2002 adult coho ~nd chinook sp&~ners.
Doc. 32! ~ 16 at 6-7. Pit. Orcutt suggests that, ~’further delays
to the ~OD i~plement~tion w~ll hinder the ~bilit~ to continue the
mainstem restoration effort critical to success of the
objective." Doc. 321 ~ 17 at 7. Mr. Orcutt’s
opinion does not show & probability of "irreparable injury" to
the Tribe; the opinion demonstrates the possibility of
"significantly better juvenile ands molt outmigration" with
f!o~s. M~/%y experts for other parties seriously
dispute the issue of ~hat effect 2002 flows had on the ~!am=th
River fish die-off ~nd attribute the cause to m±STnanagement of
flo~s r~ther th~n lack of volume.
The Tri~e contends ~the f!ows provided in the Order are not
~dequate to &void f~rther damage to the Tribe’s property right in
the Trinity fishery that is held in trust by the United States_"
Doc. 316 ~t I. Earry Rectenw~ldrs declaration states restoration
efforts directed at Trinity River should: ’~consider the continual
use of dry and critically dry year flow prescr±ptions,
of the water year type, to be incapable of attaining fishery
Restorahion goals.= Doc. ~20 at 4. The T~ibe observes the cou~t
exercised its equitable discretion in 2002, a Unorm~l" ~ater
little potential harm to plrintiffs’ in the 2002 releases."
Doc. 3!6 at 2 citing Me/norandum Decision at 39, Doc. 224. The
!
2
4
5
6
7
9
I0
14
15
16
17
18
19
2o
21
22
23
24
26
27
26
~PR 84, ~3 ID: U.S. DISTRICT COUP, T TEL M0:498~-~26
T-O15 P.060/077 F-OSS
~ount released in 2002 was ~insufficient to achieve measurable
progress towards fishery meshoration." Doc. 316 at 2.
Therefore, "continuation of d_~y year flows will further damage
the already precarious state of the Trinity River fishery. " Id.
Because the court fonnd little potentia! h&r~ to plaintiffs in
the 2002 ~normal year" releases, and 2003 is predicted to be a
~wet" or Uwetter year," the Tribe asks the court to exercise its
equitable j~risdiction ~/]d modify the injunction and remove the
cap, which will allow for the appropriate water designation year
flow in 2003. This argument ignores that conditions in the
Sacrm!uento Delt~ and south are below normal and adverse impact is
expected to species in that region, compared to 2002 ~hen
conditions .in the south were normal.
SP@JD contends the existing inter~_/~ flows ~will protect
fisher~ resources in the Trinity ~iver b~sin while the federal
defendants prepare an analysis that complies with NEPA. " Doc.
330 at 12. NCPA restates the court’s s~ judg!nent decision
that enjoining full ROD flows pending compliance with NE~A ~as
required " \to avoid irrep~_~mble injury’ to Trinity. P~ivem
resources ~s well as S~cr~mento River-Delta resources and mll CVP
water users. Doc. 351 at 4 citing Order at Z43_ NCPA argues the
Tribe has not sho-;n irreparable harm if it does not receive full
ROD flows p~nding ~ppe~l. Doc. SSI at 7. NCBA disputes the
Tribe’s argument that increased flows are recp/imed to avoid
another ufish kill tragec~y. " id. citinq the DFG report. NCPA
points o~t the court pr~ously stated ~it does not wish to
~decide the permanent increase in the ~!nount. of water that should
flow into the Trinity River. ’ " Id. citing Order 138.
57
!
2
3
6
7
8
16
$7
19
24
26
27
P, PR ~4, EBb3 !D: U.S. DISTRICT COURT TP__
The CVPIA sets the annuA! Trinity River flows At 340,000 ~2
Dendinq ~do!Dtion of ~ l~ful ROD, or court decision if the
340r000 statutory_ limit is inadequate. The Tribe’s reply
imp. roperly places the burden of proof on opposing parties:
~pl~ntiffs have not demonstrated h~rm in norm~l or wetter years
that is greater than what they would e _x!~erience under th~ order. "
Doc~ 360 at 5. Under Ninth Circuit law, the moving p~rty (i.e.
the Tribe) must demonstrate the likelihood of irreparable harm if
the inj~nct±on is not modified. The Tribe has shown increased
flows may iraprove restoration efforts and that 2003 w±l! likely
be a normal year in the north, but below norma! in the south.
There will be r~ore water in the .river under 2003 water year
conditions. However, the Tribe has not demonstrated what minimum
flow is ~n.ecessa~y_ in 200B to avoid irreparable ha~rn if the
45~,000 AF cap "remains in place pencling comp. letion of an SEiS
that complies with NEPA.
C. Balance of ~ardships
The Tribe contends, "equity de/hands that the Tribe’s
property rights in the Trinity P~iv~r fishery., as well ~s the
interests of communities depending upon commerci~l export
fishing, ~nd rive~ based recreation, share in the increased
benefits of the more abundant water supply afforded by. wetter
~ater years ." The current f!ow-cap injunction would ~be
inequitable, and [would] jeopardize na~ur~l resources in this
~-etter wate~ year.’~ Doe. 3~6 at 13. The water year is not
~etter" ~s the Tribe claims. This classification was based on
now obsolete data. The Tribe contends t~he b~lanee of hardships
5~
~T63~6 PRGE: 6B/T5
I
2
3
4
5
6
7
9
io
!!
12
14
16
!7
18
19
20
21
22
23
24
25
26
27
28
ips in its favor. The Tribe attributes the fish killed at
~lan~th River to ~’low flows in the Trinity and K!a/nath systems...
~hich ~l!owed an outbreak of common pathogens to spread s%~iftly
:trough ~/~ above average run of fall chinook." Doc_ 316 at II
;iting California Department of Fish and Game report attached to
Declaration of Earry Rectenwald, Doc. 320. ~i~. Recten~’ald states
l’the main contributing factors to the fish kill were density
~ependent as the run size "~as ~bove average." Doc. 320 at 2.
~ncreasing the ri~r flo~s could have ~lleviated the problem:
~b~sed upon historical records, the only f~ctor that could be
.~-ontrolled at the time of the kill to ameIiorate the condition
~-as the amount of flow provided to the lower ~!~m~th by releases
from m~jor up stream reservoirs." Zd.
The Fish and G~me report outlines ~potenti~l contributing
factors,’~ inc!u~ng pathogens, flow, River runs size~ ~/n-time~
~ir and water temperatures, toxic substances ~nd fish passage.
Doc. 310 attachment 1 at ii. The cause of death was ~disease
from the ciliated protozoan ~chthyopthizius multifilis (iCE) and
the bacterial pathogen Flavobacter columnare (Colunu~ris)." Doc.
~i0 attachment 1 at 4. ~’High water temperatures and low flows
.~resent in September favored ~mpiification (rapid development) of
.ICE... [the parasite’ s] life cycle is t~perature dependent and
’accelerated with warmer temperatures." Id. The wzrme~ ~ater
termp, eratures also allowed Coluntnaris to multiply and "explode,"
~s the b~cteria is "present at ~!i times in the ~qu~tic
environment. ’, _~d. at 7. The Department of Fish aind G~/ne (DFG)
compared flo’~s between 1988 and 2002; several years had similar
or lower ~verage flo~s than Sep_tember 2002 (1988~ 1991~ 1992,
59
PAGE:
I
2
3
4
5
6
7
8
9
i0
II
12
15
16
17
18
!9
2O
22
23
24
25
26
27
L994) without any fish kill. Ii. it 10. Prior to 1988, however,
.~iverage September flows neb-er &pprolched ~ne low level obse_~ved
2002." ld. The DFG has concluded that based upon modeled
historical flows, ~,the Scott and Shasta rivers could
have contributed a subst~ntiil &mount of flow to the Klim~th
River during September 2002 to have prevented the fish kill, even
all ~grieultural diversions had ceased."
Plaintiffs argue that lifting the injunction will cause
harm to them is already decided in the prior
lary in~unction and sux~miry 3udgmeznt dec±sions.
cite the first preliminary injunction proceeding in
, where ~the Court found that "the balance of hlrdships
plaintiffs" because, ~plaintiffs adequately establish the
,robability of irreplrable [enviroranental] injury [if full ~OD
flows were allowed pending resolution of the l~wsuit]: lost water
~or current deliveries and [stor]age, which ca/~not be replaced;
and additionally, a potential for electrical energy_ loss, fa!l
Df] which wall adversely impact the humin environment as wel! is
salmonid species in the sacramento River." Doc. 350 at 16
zit&ng Doc. 136 at B0:9-~2, n. 33. At the second preliminary
£njunction heading, ApDi! 2002, plilntiffs note, ~the Court
found: ~Izepl~ent~tion of the ROD will affect endangered and
threatened species in the Trinity River, Iqlamath ~iver,
Raver and sacramento/sin Joaquin Delta and designated
ell habitat... Implementation of the ROD ~ill affect the
ility of ~ater supplies for ~ contractors and for
~ower generation, with resulting environmental and socio-economic
" Doco 350 it !6 citing Dod. 224 at 23-24. The court
60
1
4
5
6
7
8
9
10
11
13
14
15
16
17
19
2O
22
23
24
25
2.6
27
28
modified the injunction to al!ow for release of ~rL additional
i00,000 A2 of CV~ water, in 2002 only, (to 469~000) based ~pon
testimony that the hazw£ to plaintiffs could be mitigated with the
li.mited increases, if other CVP intemests mould not be harmed.
The Bureau did not use the IQ0,000 AF for Trinity River purposes
in 2002.
Pl~intiffs obse_~ve mny h~rm related to f!ow releases,
-=~ra!uated and led to the flow-cap injunction. The
judgment found the ROD’s E!S was based upon inadequate
environment~l studies ~nd did not comply with NEPA or the ESA,
especially as to ROD flo~ release impacts on p!~uintiffs, CVP
w~ter users, and the en~-ironment in the Saemmmento River
Delta. Plaintiffs contend modifying the flow-cap injunction
would ~incre~se irreparable h~zTa thr~tened against plaintiffs
after they won this lawsuit." Doc. 3.50 at lS (emphasis in
origin~l) . Removing the flow-cap injunction would deplete CV~
storage, possibly reduce cV~ wate~ deliv~ry~ ~nd add to the
chronic shortage in CV~ ~’zter de_llvery. Id. Znvirornment~l
impacts include: groundwater overdraft, l~nd subsidence, and
fal!owing ~:nd air pollution. Doe. 350 at 18-19.
Plaintiffs further ~llege ~ull ROD flows m~y harm the
Trinity fishery by clisrupting spawning gravel h~bitats. Doc. 350
~t 2~ citing H~rvey Dec!. 331 at [ S. Dr. Harvey contends gravel
deficits will occur with "wet" or "~-etter" flo~ releases of 1500
CFS and !Z ,000 CFS respectively. Such deficits would require
between two ~nd fourteen ten-ton truckloads of grave!
replacement, per day, over the course of the year. Doc. 331 ~t
8 at 5. Dr. Harvey concludes ’~release of flows in excess of
61
3
4
6
7
9
I0
li
!2
13
14
16
19
20
21
22
24
25
26
27
28
og:Siam krum-
~PR 84, ~ !D: U.S. DIST~!CT COURT TEL H0: 498V22~
~47,O00 AF, with peak discharge is in excess of 6,000 cfs is
likely to cause signiflc~nt d~/u&ge to the ~pa~ning gravels on the
¯ rinlty River." Id. it ~ 9 at 5.
Pl&intiffs dispute-the Tribe’s conclusion that full flows
;ould h&~ prevented the ~l~uu&th River fish kill or c~ prevent
recurrence. Pl&intiffs point out fal! releises under the ROD are
450 CFS, "Deglrdless of year type." Doc. 350 at 19. This level
of release ~ould not have prevented the I~lam~th fish kill.
Ique DFG report confirms this conclusion. Doc. 3~0, attachment 1
it 5-7. Plaintiffs dispute the Tribe’s claim that increased ROD
flows are required to reverse declining ~naciromous fish
populations, citing the declaration of Donald Chzpm~nr ~there is
~no significant trend in natural spawner abundance over time. ’"
Doc. 350 at 21 citing Doc. 347 ~ 3. According to plaintiffs,
the Trinity River, large numbers of natural spawners do not
necessarily result in large returns of splwning adults when their
progeny return to spawn four years liter, and small spa~ning
escapements hive produced relltively large returns of spawning
adults." Z~. citing 347 at ~ 4. Plaintiffs note that if the
wlter year turns out to be wetter th~un z dry yelr, as predicted,
~precipit~tion within the wate_~shed would increase stre~ flows
within the tributaries to the Trinity River, supplying better
than ’dry yearn’ flows into mainstream." Doc. 350 at
S~fOO does not oppose the Tribe’s request to increase flows
in 200B conm~nsurate with the water year type, ~in the interests
of cooperation." Doc. 330 at 3. SMUD requests the court addmess
the issue aQ-~in iz 2004, ~nd use "evidence collected as a result
of any increased flow in 2003," to determine the appropriate
1
6
7
i0
~3
17
21
23
74
26
q~R 84, ~ iD: U.5. DISTRICT COURT ~ H0:4987226 #76326 PAGE:
&evels for 2004. Doc. 330 at 1. SbfOD avers, "as a matter of
law, the ROD cannot be implemenhed wihhout & h~EPA ~n&lysis that
mnalyzes the impacts of the ROD flows against the reasonable
range alternatives. " Doc. 330 it 2. Thus, ~there is absolutely
no leg~l b&sis for implementation of ROD flows before the SEES is
"-ompleted." I~. S~JD asserts it his mlready demonstrated that
implementing ROD flows "would irreparably harm SMUD’ s interests."
NCPA accuses the Tribe of ignoring the substantial injury to
.Dl~intiffs~ if ROD flo~s are implemented without a thorough and
leg~_l SEIS. Doc. 351 ~t 8. NCPA contends the Tribe’s motion
ignores "the impact of ful! ROD flo~s on (I) endangered species
in the Sacramento Rive_~ and Delta and (2) power system
.-eliability. ,’ Td.
The Tribe rejoins that "plaintiffs will not be harmed to any
greater extent by [full flows] than the~_ other-~ise would be by
the dry. year flows ordered by this court." In contrast, full
flo~s will ~*prevent further habitat degradation and consequen~
irreparable harm to the Tribe’s fishery." Doc. 360 ~t I. The
T~ibe contends that i£ it wins its appeal, ~federal defendulnts
will have needlessly devoted and essentially ~&sted considerable
time and resources that could have otherwise been devoted to
other aspects of the fishery restoration program, such as
ensuring ;.SA comp. li&nce for Trinity Division oper&tions or moving
fnrw~rd ~n n~n-flnw mems~:res nf the ~OD." Td. ah 4. Tn re~ly.
the Tribe acknowledges that ROD flows ~would not h~ve completely
&meliorated conditions that led to the Se_mtember 2002 the
fish kil! ." However~ "norn~iL or h±gher flows wi!l i~q3. rov~
,chinook smolt sur~-ivzl, thus offsettin@ the loss of chinook fry
63
1
2
3
4
5
6
7
9
I0
II
12
!3
16
17
18
19
2o
21
22
23
24
25
26
27
~PR ~4, ~£~33 ID: U.S. DISTRICT COURT TEL MO: 4987Z26 #763~6 PRGE: 65/7S
~oduction due to unspawned adults killed in September 2002, and
ill in~rov~ successful passage ~nd growth of the smolhs t~hrough
~elower mainstem " 360 at 8. RestorationKlamathRiver.Doc.
forts to date, ~h&ve f&iled to restore the fishery to its pre-
~q<D levels." Zd. at 9. The Tribe contends no p~rty has
lhallenged "the Tribe’s evidence th&t nor~l-year flows are
%ecessaL-y to achieve meaningful fishery restoration." Under the
-~urrent order, ~harm to the f~sheryr in the form of f~rthe~
%~bit~t degradation, will inevitably occur." I~. !n their
supple/nent~l responses to the second Boll±ng Decl~rat±on
requested by the court, plaintiff-intervenors have ~de such a
showing.
The Tribe places the burden of proof on its opposing
have not shown ~credible ~vide/lce to counterbalance the need for
norraal year flows ~n a normal ~ater yea~," the Tribe’s motion
should be gra~ted.
The balance of hardships wa~ painstakingly considered in the
Decembe~ 20, 2002 Memorandum ~nd Order. Non-flow ROD measures
are proceeding without restraint. The Tribe offers no e~-idence
that ~ny resource will be dive,ted f~om a non-flow measure to
comply with NEPA. To the contrary, full flow measures have the
>otel~timl to har~ ~ll other part±es, the envirorument, ~!%d the
)ublic interest due to Interior’s failure to prepare ~n EiS that
complied ~ith NEPA ~nd the ~SA.
Regarding non-flow memsures, the Dece~Iber 20 Dec±sion
concludes: ~considering the totality of al! factoxs, the balance
of hardships weighs heavily against enjoining the non-flow
54
i
3
4
5
6
7
8
9
!0
II
12
14
~6
17
19
2O
22
23
24
25
26
-~7
in the ROD ~nd the implementation of the ROD EIS of
Critica!!y dry ~/%d ~ ye~:~ flows. " Doc. 305. ~’The Sacramento
and Delta ESA listed species are not h~rmed by inhmediately
imp. l~menting the ROD’s non-flow measures ~nd permitting the use
)f critically dry and dry year flows provided by the ROD. Any
h~nn to the NEPA decis±on-making process by allowing these
seasures to go foretold is overwhelmingly offset by the benefit to
the Trinity R±vem fishery ~nd need to discharge the federal trust
9bl±g~tion owed to the Indian Tribes. " Doc_ 30Z at !28.
In contrast, regarding ROD flow measures, the decision
zoncludes :
the b~-lance of the hardships does favor enjoining
t_he imple2nent~tion of the ROD per~nent recommended
flows alcove the 452,608 AF level, pending ful!
compli~/zce w£th N~PA and ~SA. Theme are ESA listed
species on both sides of the balance a/~d other immacts
on the CVP watez users which have no~ been prope~’ly
subjected to ~ \hard look.’ IqZPA’s purlmose is to
prevent the agency from making a decision that it wi!l
later r~et. The bureaucratic tendency to choose an
option sit,ply because it has ~_Iready be~n implemented
is a h~m to the env!_~onment that is real.
Congzess has set the minimum relemse of 340,000
acre-fee% ~ yemr of water ms a fmils~fe to pre~nt
further degradation of the Trinity River pending
Interior’s lawful completion of scientific study of the
issues, congress’ finding deserves defe~e_nce.
The court has no inclination to~ nor should it,
stlb~titute its jndgme/~t to decide the permanent
increase in the z!nmunt of CV? water that should
into the Trinity River. This would result in ~udicial
micro-m~n~gement of the Trinity River Restoration.
Doc. 3(2~ at 128-129.
The T~ibe h~s provided information which suggests there is
mddit±onzl ~-ater in the CV~, overal!, and that the federa!
defendants flow scenarios ~ay pre~ent another fish die-off.
d.P~blic Interest
#’763?_6 PF~GE:
1
2
3
4
5
6
7
B
9
I0
13
15
16
17
2O
21
22
23
24
26
27
2B
The Tribe argues that modifying the flow cap injunction
the public inherest ~ec~use it will in~ure ~\thzt the trust
is met and restoration of the Trinity. fishery will
expeditious!y,’~ Doe. 316 At 15, and that ~the p~blic
will also be served by staying that portion of this
’s Order in which capped flows at 453,000 AE or [sic]
. years run [sic] out to be norrgal or wetter w~ter
" I~. at !6. It is not in the public interest to o~der
f!ow releases which hz~e not been adequately st,/died under NEPA
and the ESA, especially ~hen the environmental impacts on the
Sacr~me/~to River and Delta ~re unkno~rn, but expected to be
adverse, until subjected to future study.
!
2
3
6
7
!0
14
15
17
2O
24
25
26
27
_~estore jurisdiction to the district court to adjudicate anew the
~erits o.~ the c~se ~£her either party has invoked its right of
appeal rand. jurisdiction has passed to ~/1 appellate court."
The Tribe ~equests a modified injunction which does not
m~int~n the status quo. The Tribe requests the ROD full flow
releases be implementedr even though the ROD’s EIS has been
adjudicated as ~nlawful du~ to ~nterior;s f~ilure to comply with
~EPA and the ~SA. The Tribe &tte_mpts to ~’adjudicate anew the
merits of the case" in order to avoid the flow-cap order which
enjoins some of the ROD’s flow measures. The court
jurisdiction to m~intain the stat~s quo while this case is on
appeal. Absent changed circumstances, ~equit~ble jurisdiction"
exists, ms suggested by the Tribe, to reconsider the summary
judgment arguments ~nd modify the injunction to allow for ful!
flow measures, until a lawful SETS is com~.leted. The 2002
modified injunction~ which ~llowed £or flows ~p to 469,000 A~,
wms issued prior to a final ~dgment and ~ppea! in this c~se
under different eencLitions_The Tribe’s comparisons to that
modification are ~spiaced.
4) Evidential?- DisPutes
Plaintiffs object to a!leged hearsay evidence s~bmitted by
the Tribe: exh~_bits 5~ 6 and 7 to the declaration of Robert F.
Franklin. Plaintiffs also object to paragraphs 7 through 13 in
~i~. Franklin’s second declaration. SMUD s~bmitted a partial
9oinder to this objection long after tb.e deadline p~ssed for
filing opposition to this motion. SMUD’s Partial Joinder, ~iled
67
1
2
3
4
5
6
7
9
I0
13
!6
17
19
2O
23
25
26
27
~,76326 PA~:
~ebru~ry 21~ 2003, DOC. ~7-
E~/nibits 5, 6, & 7 include hearsay regarding discussions
SMUD’s alternative measure. This evidence is not relevant
the motions under consideration. The December decision is not
reconsideration~ therefore, there is no reason to consider
relatin~ to the study of specific alternative measures.
Exhibits 5r 6 and 7 are ordered STRICKEN from the record.
,hs 7 through 13 of Mr. Franklin’s second declaration are
~dered STR!CK~ for the s~me reason.
Pursuant to the Court’s request, Chester Bowling filed a
supplemental declaration February 27, 2003, reg~rdlng evolving
storage eon<litions and the likely effect of increased releases to
9rotect against a recurrence of the fish-ki!l and the potentia!
~_ffect on the S~cr~mento Delta environment and on other CVp
interests. As of March 25, 200~, ~ii CgP reservoirs show storage
excess of the 15 year average accumulated ~n-flow, and
~ccumulated precipitation reports show in excess of the 15 year
average in the northern Trinity and Shasta Reservoirs; but belo~
average in the southern New Melones, ~illerton, and Folsom
~eservoirs. The Bolling Declaration fnrther shows snowp&ek in
the Central and Southern Sierra Nev~c~ mountains to be below
average, while the water content of the sno%zpack in Shast& a/%d
Trinity Basins is hi~he_r than average. Eigher than average
releases from Shasta, ~o!som and Orov!lle Reservoirs were
required in February to meet the X2 standard. Trinity Reservoir
into the Sacramento Rived-Delta -~ere also require~ in
68
69
2
3
4
6
7
9
I0
~7
2O
25
27
oncerns. These concerns ~re also unaddressed by the FEIS
ROD =hich contributes to the ROD’s illeg~lity.
IThe Tribe notes that the Declarer±on does notBoliing
upport the 2003 w~ter ye~’s operational constraints for
eliveries of 60% of contract for South-of-Delta ~ater users,
lompl~ning diversions f~om the Trinity ~iver are wrongfully at
~he expense of Trinity River fishery restormtion. The Bolling
Declaration does not specify which e~isting or contemplated "~CP
later and power users" m~y experlence potential ~erse i~mpacts
from increased Trinity flows, or how such ~n impact, if it
arises~ would be distributed ~mong the ~-arious c~tegori~s of CV~
~sers. The Eol!ing Decl~ration does not specify or q~antify
ipotential ~dverse impact" that he "c~not say will not occur."
The Tribe notes that ackiition~l releases to South-of-Delt~ users
~sually occur ~fter ezch year’s February forecast.
~.The Tribe quest±ons X2 management for Sacramento or American
vet temperatures resulting from potentially reduced co!d water
ge. Because this proble!~only arises when storage drops
I’below 600,00 acDe feet in Trinity Reservoir ~nd 1.9 ~illion acre
~eet in Sh~stz Reservoir," ~nd the projected end of September
,Carry-over storage in both reservoirs for ~ater year 2003 is well
~ove those~inimums, c~rry-over storage ~should not be a
~roblem." ~ne ~ibe m~kes three additional leg~l argltments,
their points 6 and 7 that absolute priority must be
iiven to the Trinity Fishery ~ithout regard to any competing CVP
All Plaintiffs and Intervenors strongly criticize and .oppose
the Federal Defendants’ ~l~thRiver flow proposals. They note
7O
1
4
9
I
2
4
5
6
7
9
Io
!1
13
14
16
17
19
21
22
23
24
25
e6
27
mR 04, ~00~ ZD: U.S. DIST~!C7 COURT ~ HO: 4~87E~6
~estion the efficacy of the Feb~!~ry 27 Bureau response.
Additional problems are described as problematic for other
fish ~nd wildlife species in the Trinity River due to historic~l
ow flow status during August a~d September of the water year. A
surge in Trini~ Reservoir stored releases during a natural !ow
~low will have unintended consequences which may ~ffect spring
~run Chinook salmon, Sacr~nento river fish, including winter run
~inook salmon ~nd other threatened species, as well as other
~rildlife that inhabit the Trinity River’s rip~ri~n zon~ during a
i~atur~l low-flow period. Low-flow releases ~t Iron Gate D~m are
~eferred to by ~ Yurok Tribe biologist in the ~orthern District
~ase as being the likely cause of the 2002 fish-kil!. In
~ubst~nce, the Plaintiffs and Intervenors argue that measures
~hou!d not be utilized in this case to address the lower ~lamath-
River problem which is already before the Northern District
!n the final analysis, environmental hardships on both sides
~ust be balanced. The Bureau needs authority within the exercise
Iits reasonable discretion to utilize additional flows toup
d including 50,000 additlon~l acre feet in the 2003 water year
the event that the Trinity River fishery wil! be damaged by
zhe absence of such flows and ~ if such water is not av-~ilable
[rom ~un alternate source as m~y be prescribed in the Northern
9istrict c~se. The risks of threatened environmental harm to the
~acra~entc Delta and the south are too great to justify going
beyond such releases until a !~ful SE~S has been completed.
V. CONCLUSION
Federal defendmnts’ evidence is sufficient to warrant a
72
2
4
5
6
7
8
I0
!I
~-3
~-4
!6
17
2O
21
22
24
26
27
2S
~odified injunction to extend the SEIS com~. !etion deadline to
Iuly 2004_
The Tribe has not shown the errors of !aw necessary to
justify a stay of the injunction. Its evidence concerning the
~003 water year, when balanced against hardships to all,
ustifies ~ !i~ited mociification of the injnnction for 2003,
)endin~ appeal, to per?/it the Bureau to use up to 50,000
ac~e feet of CVB water for Trinity River restoration,
~D!y if such water is not m~de available to the lower ~{lamath
f~er in the Northern District cases.
iT !S ORDERED:
I. Federa! defendants’ motion to modify the December 20,
2002 injunction is ~!~TED; Federa! defendants sh~ll complete the
SEIS on or before ~uly 9, 2004. Federal Defendants shall provide
)rogress reports to the Court and parties, by fax and U.S. Mail,
~n June 20, 2003, and january 20~ 2004.
2. The ~oopa Vmlley Tribe’s motion to stay the December
~nj~nct!on, which requires federal defendants to ~evise the SEIS
is DENIED.
~. The Soop~ Valley Tribe’s motion to modify the injunction
allow for full-flow releases commensurate w£th the applicable
~OD water year-type, pending appe~l, is G~ANTED to allow the
Bureau, £n exercise of its mezson~ble d~scretion~ to use up to
5~0,000 ~dd~tion~l acre feet of CZrp water in the 2003 water year,
o~nly if such ~ter is not available as a result of t_he Northern
District c-- ses.
~ATED : .hpmil ~, 2003.
73
!
2
3
4
6
7
9
io
12
14
1_6
1_7
19
21
25
Oliver W. W~nger
DqqITED STATES DISTRICT
74