Federal Court Invalidates Another Biological Opinion Addressing the Impacts of Central Valley Project and State Water Project Operations on Fish

On April 16, 2008, Judge Oliver W. Wanger of the Federal Eastern District Court of California issued a long-awaited order in Pacific Coast Federation of Fishermen's Associations v. Gutierrez, Case. No. 1:06-cv-00245-OWW-GSA (“PCFFA v. Gutierrez”). The Court held that the National Marine Fisheries Service and Bureau of Reclamation violated the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq., in carrying out their duties under the Endangered Species Act, 16 U.S.C. §§ 1531 et seq. The Court invalidated the biological opinion which analyzed the potential impact of future Central Valley Project and State Water Project operations on listed salmonid species. The biological opinion did not adequately consider all relevant issues and failed to explain evidence in the administrative record that contradicted the biological opinion's conclusions.

Background

On August 9, 2005 multiple environmental groups (“Plaintiffs”) filed a complaint in the Eastern District of California against representatives of the National Marine Fisheries Service (“NMFS”) and the Bureau of Reclamation (“Bureau”). The Plaintiffs challenged a biological opinion (“BiOp”) prepared by NMFS that analyzed the potential impact on salmonid species of the Bureau's future operations of the Central Valley Project (“CVP”) in coordination with the State Water Project (“SWP”). Plaintiffs challenged the BiOp's conclusions that the Bureau's operations would result in “no jeopardy” to salmonid species and “no adverse modification” to salmonid critical habitat, contending that NMFS and the Bureau had acted in a manner that was arbitrary, capricious, and contrary to the law under the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq.

Holding in PCFFA v. Gutierrez

Judge Wanger's April 16, 2008 order addressed the parties' cross-motions for summary judgment and found for the Plaintiffs on two important grounds. First, the Court held that the BiOp did not reconcile its factual findings and analyses with its conclusions. The evidence in the record indicated that CVP and SWP operations did, and likely would continue to, impact the survival and recovery of salmonid species, which was contrary to the BiOp's “no jeopardy” conclusion. Moreover, the BiOp concluded that future CVP and SWP operations would result in “no adverse modification” to salmonid habitat, but failed even to analyze critical habitat for some salmonid species. Even though the Defendants argued that critical habitat had not been identified for all relevant salmonid species at the time of the BiOp's issuance, the Court explained that the ESA requires that critical habitat be designated when feasible; in this case, the record demonstrated that designations were feasible when NMFS prepared the BiOp.

Second, the BiOp failed to include any analysis of the effects of global climate change on CVP and SWP operations and, in turn, on salmonids. Such an omission was fatal because the agencies could not justifiably conclude that there would be “no jeopardy” to salmonids and “no adverse modification” to salmonid's critical habitat without this analysis.

PCFFA v. Gutierrez is the companion case to Natural Resources Defense Council v. Kempthorne, 506 F.Supp. 2d 322 (E.D. Cal. 2007) (“NRDC v. Kempthorne”), in which Judge Wanger invalidated a biological opinion that analyzed the effect of future CVP and SWP operations on Delta smelt. As in NRDC v. Kempthorne, Judge Wanger refrained from addressing remedies in PCFFA v. Gutierrez; instead, the parties will have the opportunity to argue what remedies are appropriate and whether the BiOp should be vacated during preparation of a new biological opinion.

While the final outcome of PCFFA v. Gutierrez remains to be seen, one thing is certain: the string of decisions challenging the environmental compliance of the CVP and SWP will acutely affect water management operations in the Sacramento-San Joaquin Delta. Moreover, Judge Wanger could impose even further restrictions on CVP and SWP exports to protect salmonid species, beyond those already mandated by NRDC v. Kempthorne to remedy the effect on Delta smelt.

PCFFA v. Gutierrez

For more information, please contact Downey Brand lawyers whose practices involve the ongoing environmental challenges to CVP and SWP operations: Kevin O'Brien, David Aladjem, Steve Saxton, or Maya Ferry at (916) 444-1000.

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