Endangered Species Law & Policy

On May 18, 2010, the United States District Court for the Eastern District of California issued findings of fact and conclusions of law (PDF) regarding Plaintiffs’ request for a preliminary injunction in The Consolidated Salmonid Cases, No. 09-1053 (E.D. Cal. May 18, 2010).  The matter consists of seven consolidated actions that all challenge the June 2009 biological opinion, jeopardy and adverse modification determinations, and reasonable and prudent alternative (RPA) for continued operation of the Central Valley Project (CVP) and State Water Project (SWP) issued by the National Marine Fisheries Service (NMFS). The CVP and SWP provide water for approximately 25 million Californians.

Plaintiffs challenged the implementation of two components of the RPA developed by NMFS, RPA Actions IV.2.1 and IV.2.3. Action IV.2.1 imposes minimum San Joaquin River inflow requirements in conjunction with maximum permissible exports (i.e., a 4 to 1 ratio between inflow and exports) and is effective April 1 to May 31.  Action IV.2.3 limits Old and Middle river flows to no more negative than -2,500 to -5,000 cfs, depending on juvenile entrainment levels, and is effective January 1 to June 15 or until a temperature trigger is hit at Mossdale (a location on the San Joaquin River).

While the Court did not issue an order, it did indicate that the Plaintiffs had already succeeded on their National Environmental Policy Act claims and were likely to succeed on at least some of their Endangered Species Act claims.  Specifically, the Court determined that NMFS acted arbitrarily and capriciously in formulating Actions IV.2.1 and IV.2.3.  With respect to Action IV.2.1, the Court held that the total absence of explanation for the exact flow limits chosen makes Action IV.2.1 arbitrary and capricious. Findings & Conclusions at 43.  And the Court held that Action IV.2.3 does not scale salvage [of fish entrained at CVP and SWP facilities] to population size, an undisputed failure to use the best available scientific methods, at least with respect to the winter-run and spring-run [Chinook salmon], for which population data is available.  Findings & Conclusions at 119.  Furthermore, the Court determined that – in interpreting certain key scientific studies – NMFS drew conclusions that the authors of the studies themselves disclaimed.  Findings & Conclusions at 57-60 121-122.

The Court is holding a hearing to address the proposed injunction on May 19, 2010.  A motion for preliminary relief is pending in a related matter, The Delta Smelt Cases, No. 09-407, that consists of consolidated actions challenging the December 2008 biological opinion, jeopardy and adverse modification determinations, and RPA for continued operation of the CVP and SWP issued by the Fish and Wildlife Service.