1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 HOOPA VALLEY TRIBE, Case No.: 1:20-cv-01814-JLT-EPG 12 Plaintiff, ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION 13 v. (Doc. 108) 14 UNITED STATES BUREAU OF RELCAMATION, et al., 15 Defendants. 16 17 18 I. INTRODUCTION 19 This lawsuit concerns management of the Trinity River Division (“TRD”) of the federal 20 Central Valley Project (“CVP”). In the operative second amended complaint (“SAC”), the Hoopa 21 Valley Tribe (“Plaintiff” or “Hoopa”) advances several categories of claims. (See Doc. [142].) At 22 the core of this lawsuit are allegations that the United States Bureau of Reclamation 23 (“Reclamation”) and related federal entities and officials (collectively, “Federal Defendants”) 24 violated various provisions of federal law by entering into certain contracts with water users for 25 delivery of water from the CVP. (SAC, ¶¶ 126–78.) In addition, Hoopa alleges that Reclamation 26 has violated “delegated sovereignty” set forth in Section 3406(b)(23) of the of the Central Valley 27 Project Improvement Act (“CVPIA”), Public Law 102-575 (1992), by taking steps to modify the 28 daily flow regime set forth in the 2000 Record of Decision on Trinity River Mainstem Fishery 1 Restoration (“TRROD”) without Hoopa’s concurrence. (See, e.g., SAC, ¶¶193–203.) 2 On December 16, 2022, Hoopa filed a motion for preliminary injunction (“PI Motion”) to 3 block Reclamation from implementing the challenged changes to the TRROD daily flow regime. 4 (Doc. 108.) Plaintiff bases its request for injunctive relief on its ninth claim for relief, entitled 5 “Violation of Hoopa’s Delegated Sovereignty in CVPIA; Violation of [Administrative Procedure 6 Act (APA)],” which alleges, among other things that “on January 30, 2023, Reclamation took 7 final agency action to approve the Trinity River [Winter Flow Variability (“WFV”)] Project in the 8 absence of seeking or obtaining Hoopa concurrence as required by CVPIA § 3406(b)(23).” (SAC, 9 ¶ 200.) 10 On December 7, 2022, the Trinity Management Council (“TMC”), an advisory body set 11 up by the TRROD, voted 7-1 in favor of recommending implementation WFV Project. (See SAC, 12 ¶ 112; see also Docs. 118-2 at 10 (12/7/22 TMC minutes), 118-1 (TMC Bylaws).) Hoopa was the 13 sole “no” vote. (SAC, ¶ 112.) The TMC then then forwarded its recommendation to Reclamation. 14 (SAC, ¶¶ 109, 112.) On January 30, 2023, Federal Defendants adopted the TMC’s 15 recommendation, over Hoopa’s objections. (Id., ¶¶ 114–16.) Implementation is planned to begin 16 sometime after February 13, 2023. (Doc. 132; see also Doc. 127 at 2 n.1.)1 17 Federal Defendants oppose injunctive relief. Though there is no dispute that CVPIA 18 § 3406(b)(23) gave Hoopa concurrence rights in connection with the adoption of the TRROD, 19 (see Doc. 118 at 14–15), Federal Defendants insist that by giving its concurrence to the TRROD 20 in 2000, Hoopa likewise consented to the adaptive management protocols established in the 21 TRROD, including the creation of the TMC to act as an advisory board with the power to 22 recommend certain types of flow changes. (See generally Doc. 118.) Therefore, Federal 23 Defendants argue, the WFV Project can be implemented without further “concurrence” from 24 Plaintiff. (Doc. 118 at 1–2.) 25 Plaintiff deems Federal Defendants’ arguments “wholly meritless” and maintains that 26 pursuant to CVPA § 3406(b)(23) the Secretary cannot approve a recommendation to modify the 27 1 Hoopa’s motion indicates that the WFV Project was designed to begin as early as December 15, 2022. However, the 28 parties were able to reach an agreement to provide Hoopa with fifteen days’ notice of any plans to implement the 1 TRROD without Hoopa’s concurrence. (Doc. 120 at 4.) Hoopa argues that “nothing in the TMC 2 bylaws, the implementation plan, or any other related document negates or takes away Hoopa 3 concurrence rights provided in the statute.” (Id.) 4 The Court finds the matter suitable for decision on the papers pursuant to Local Rule 5 230(g).2 For the reasons set forth below, the motion for preliminary injunction is DENIED. 6 II. LEGAL STANDARD 7 “The proper legal standard for preliminary injunctive relief requires a party to demonstrate 8 ‘that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the 9 absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction 10 is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting 11 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)); see also Ctr. for Food Safety v. 12 Vilsack, 636 F.3d 1166, 1172 (9th Cir. 2011) (“After Winter, ‘plaintiffs must establish that 13 irreparable harm is likely, not just possible, in order to obtain a preliminary injunction.’”); Am. 14 Trucking Ass’n, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). The Ninth 15 Circuit has also held that an “injunction is appropriate when a plaintiff demonstrates . . . that 16 serious questions going to the merits were raised and the balance of hardships tips sharply in the 17 plaintiff's favor.” Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1134–35 (9th Cir. 2011) 18 (quoting Lands Council v. McNair, 537 F.3d 981, 97 (9th Cir. 2008) (en banc)).3 The party 19 seeking the injunction bears the burden of proving these elements. Klein v. City of San Clemente, 20 584 F.3d 1196, 1201 (9th Cir. 2009); see also Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 21 668, 674 (9th Cir. 1988) (citation omitted) (“A plaintiff must do more than merely allege 22 imminent harm sufficient to establish standing; a plaintiff must demonstrate immediate threatened 23
24 2 It is within the Court’s discretion to deny a motion for preliminary injunction without a hearing when there are no material factual disputes. See, e.g., Dex Media W., Inc. v. City of Seattle, 790 F. Supp. 2d 1276, 1278 n.1 (W.D. 25 Wash. 2011) (collecting cases).
26 3 The Ninth Circuit has found that this “serious question” version of the circuit’s sliding scale approach survives “when applied as part of the four-element Winter test.” All. for the Wild Rockies, 632 F.3d at 1134. “That is, ‘serious 27 questions going to the merits’ and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that 28 the injunction is in the public interest.” Id. at 1135. 1 injury as a prerequisite to preliminary injunctive relief.”). Finally, an injunction is “an 2 extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled 3 to such relief.” Winter, 555 U.S. at 22. 4 III. DISCUSSION 5 A. Jurisdictional Issues 6 1. Ripeness 7 At the time Federal Defendants filed their opposition to the PI Motion, Reclamation had 8 yet to adopt the TMC’s recommendation, so Federal Defendants argued therein that the claim 9 upon which this motion is premised was not at that time ripe for decision. (See Doc. 118 at 5 n.1.) 10 The Court shared this concern and ordered supplemental briefing on the issue of ripeness. (Doc. 11 124.) The parties filed responsive briefs on January 25, 2022. (Docs. 128, 129.) The subsequent 12 adoption of the TMC’s recommendation and amendment of the complaint4 alters that factual 13 backdrop. The Court can no longer contemplate any reason why the case is not now ripe for 14 review. 15 2. Final Agency Action 16 Federal Defendants nonetheless argue that the case is unfit for adjudication because there 17 has been no “final agency action” as contemplated by the APA. As mentioned in the Court’s 18 request for supplemental briefing (Doc. 124 at 3–4), the Court’s jurisdiction to adjudicate the 19 claim upon which the pending motion is based—the ninth cause of action—derives from the 20 APA. Though that claim also relies upon CVPIA § 3406(b)(23), the CVPIA does not itself create 21 a private right of action, so the APA governs judicial review of any claim alleging that the 22 CVPIA was violated. San Luis & Delta-Mendota Water Auth. v. U.S. Dep’t of Interior, 624 F. 23 Supp. 2d 1197, 1212 (E.D. Cal. 2009), aff’d sub nom. San Luis & Delta-Mendota Water Auth. v. 24 United States, 672 F.3d 676 (9th Cir. 2012). Under section 702 of the APA, “[a] person suffering 25 wrong because of agency action, or adversely affected or aggrieved by agency action within the 26 meaning of the relevant statute, is entitled to judicial review.” 5 U.S.C. § 702. “When, as here, 27 4 Federal Defendants anticipated that if the WFV Project was ultimately adopted, Plaintiff might amend the 28 complaint to cure the ripeness issue. (See Doc. 129 at 5.) Plaintiff has now done so without objection. (See Docs. 140, 1 review is sought not pursuant to specific authorization in the substantive statute . . . the ‘agency 2 action’ in question must be ‘final agency action.’” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 3 882 (1990) (citing 5 U.S.C. § 704)); Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 61–62, 4 (2004) (“To maintain a cause of action under the APA, a plaintiff must challenge ‘agency action’ 5 that is ‘final.’”). In the Ninth Circuit, the final agency action requirement “has been treated as 6 jurisdictional.” San Francisco Herring Ass’n v. Dep’t of the Interior, 946 F.3d 564, 571 (9th Cir. 7 2019). 8 “Agency action” is defined in the APA, 5 U.S.C. § 551(13), to include “the whole or a 9 part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or 10 failure to act.” An “agency action” falls under one of “five categories of decisions made or 11 outcomes implemented by an agency—‘agency rule, order, license, sanction [or] relief.’ ” Norton 12 v. S. Utah Wilderness Alliance, 542 U.S. 55, 62 (2004) (quoting 5 U.S.C. § 551(13)). As the 13 Supreme Court explained in Norton: 14 All of those categories involve circumscribed, discrete agency actions, as their definitions make clear: 15 1. “[a rule is] an agency statement of . . . future effect designed to 16 implement, interpret, or prescribe law or policy; 17 2. [an order is] a final disposition . . . in a matter other than rule making; 18 3. [a license is] a permit . . . or other form of permission; 19 4. [a sanction is] a prohibition . . . or taking [of] other compulsory 20 or restrictive action; and 21 5. [a relief is] (a) a grant of money, assistance, license, authority, etc., or (b) recognition of a claim, right, immunity, etc., or (c) a 22 taking of other action on the application or petition of, and beneficial to, a person.” 23 24 Norton, 542 U.S. at 62 (quoting 5 U.S.C. §§ 551(4), (6), (8), (10), (11)). “While this definition is 25 ‘expansive,’ federal courts “have long recognized that the term [agency action] is not so all- 26 encompassing as to authorize us to exercise judicial review over everything done by an 27 administrative agency.” Wild Fish Conservancy v. Jewell, 730 F.3d 791, 800–01 (9th Cir. 2013) 28 (citing Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 19 (D.C. Cir. 2006)). 1 For an action to be “final agency action” under the APA, two conditions must be met: 2 1. The action must mark the ‘consummation’ of the agency's decision making process and must not be of a merely tentative or 3 interlocutory nature, and 4 2. The action must be (a) “one by which rights or obligations have been determined,” or (b) “from which legal consequences flow.” 5 Bennett v. Spear, 520 U.S. 154, 178 (1997). In other words, if the agency action is purely 6 advisory and in no way affects the legal rights of the relevant actors it is not a “final agency 7 action” under the APA. Id. In the Ninth Circuit, the core question is whether the agency has 8 completed its decision-making process and whether the result of that process is one that will 9 directly affect the parties. Oregon Nat. Desert As’n v. U.S. Forest Serv., 465 F.3d 977, 982 (9th 10 Cir. 2006). There are at least three circumstances in which an agency’s action may be deemed 11 final: 12 1. If the action “amounts to a definitive statement of the agency’s 13 position” or 14 2. If the action “has a direct and immediate effect on the day-to-day operations” of the subject party, or 15 3. If, based on the action, “immediate compliance with the terms is 16 expected.” 17 Id. A reviewing court should “focus on the practical and legal effects of the agency action” and 18 should interpret the finality requirement “in a pragmatic and flexible manner.” Id. 19 Federal Defendants argue that there has been no final agency action here, but the cases 20 they rely upon are distinguishable. First, Federal Defendants cite a Fourth Circuit case, Village of 21 Bald Head Island v. U.S. Army Corps of Engineers, 714 F.3d 186 (4th Cir. 2013), in which a 22 community challenged how the U.S. Army Corps (“Corps”) maintained an area within 23 Wilmington Harbor. In 2000, the Corps formally approved revisions to a plan to widen, deepen, 24 and realign Wilmington Harbor. Id. at 193. Concerned that the project would worsen ongoing 25 effects of channel maintenance on nearby beaches, local communities sought and obtained 26 commitments from the Corps, including that the Corps would make use of sand recovered from 27 maintenance dredging by “nourishing” nearby beaches with that sand. See id. 189–90, 193. 28 Crucially, the plaintiffs did not challenge the 2000 approval of the project plans; rather, they 1 challenged the Corps’ performance of the “nourishment” activities in 2010. Id. at 193–94. The 2 Fourth Circuit held that the alleged action did not fall within any of the categories that qualify as 3 “agency action” because that kind of day-to-day operational activity was not a “determination.” 4 Id. 5 Relatedly, Federal Defendants cite Chemical Weapons Working Group, Inc. v. U.S. Dep’t 6 of the Army, 111 F.3d 1485, 1494 (10th Cir. 1997). In the late 1980s, the Army adopted a plan to 7 dispose of chemical weapons on-site at a particular location by means of incineration. Id. at 1487. 8 In 1996, the plaintiffs sued to block the Army from conducting trial burns in accordance with the 9 original plan. Id. at 1488. Among other things, the Tenth Circuit found that the claim was non- 10 justiciable because the Army’s decision to commence trial burns did not qualify as final agency 11 action given that the record did not suggest “the Army has ever revisited the question of how 12 precisely it planned to destroy the chemical weapons [ ] since its 1989 Final Environmental 13 Impact Statement.” Id. at 1494. 14 Similarly, in Wild Fish Conservancy, the Ninth Circuit found no discrete agency action 15 where the plaintiffs were “merely” alleging that Federal Defendants operated two dams in a 16 manner that obstructs fish passage through a particular creek during some or all parts of the year. 17 730 F.3d at 801. This was in part because, though “the act of closing the gates” on the dams “has 18 immediate physical consequences, such action is not fairly analogous to a ‘rule, order, license, 19 sanction, [or] relief.’” Id. In addition the act was not “final” because it did not mark the 20 consummation of the agency’s decisionmaking. Rather, the opening and closing of the dam gates 21 constituted “day-to-day operations that merely implemented [existing] operational plans” for 22 those dams. Id. 23 Federal Defendants argue that these cases control here because the WFV Project will 24 “implement actions already contemplated by the 2000 ROD” and therefore is simply a form of 25 performance under the ROD, rather than a “final disposition.” (Doc. 129 at 8.)5 However, unlike 26
27 5 In the Court’s view, Federal Defendants are, at least in some respects, making contradictory arguments by suggesting on the one hand that any challenge to the WFV Project was not ripe until Federal Defendants “adopted” 28 the recommendation to implement the Project, while simultaneously arguing that Reclamation’s eventual adoption 1 the projects discussed in Village of Bald Head, Chemical Weapons Working Group, or Wild Fish 2 Conservancy, the record here suggests that recommendations made by the TMC—at least those 3 related to the WFV Project—were formally adopted by Federal Defendants. (Doc. 132 (notifying 4 the Court and the parties that “Federal Defendants have adopted the Trinity Management 5 Council’s recommendation”); see also Doc. 118-7 (TRROD Implementation Plan) (“All agencies 6 will retain their existing authorities. However, when the TMC recommends a particular project or 7 program, agencies will be expected to undertake those projects. If agencies do not implement the 8 recommended actions or projects, they must explain to the TMC in writing why they have not 9 done so.”).) On the present record, the Court is unable to see how Reclamation’s “adoption” 10 decision would not constitute an “order” insofar as it is “a final disposition . . . in a matter other 11 than rule making” that qualifies as an “agency action” under the APA. The record also suggests 12 that the determination to proceed with the WFV Project is the “consummation” of a decision- 13 making process that has real, practical, consequences and is therefore “final agency action.” 14 The Court notes, however, that it does not necessarily need to issue a definitive decision 15 on the above issue at this stage of the case because the motion fails on the likelihood of success 16 prong. See Tele-Physicians, P.C. v. Hailey, No. 19-CV-1177-AJB-BGS, 2019 WL 3220160, at *3 17 (S.D. Cal. July 17, 2019) (where court was “uncertain” if it had subject matter jurisdiction, 18 motion for injunctive relief was rejected because movants were unlikely to succeed on the 19 merits); see also Sec’y of Navy v. Avrech, 418 U.S. 676, 678 (1974) (declining to decide difficult 20 jurisdictional issue where merits question is far more obvious).6 21 B. Plaintiff is not Likely to Succeed on the Merits 22 1. Relevant Background 23 Plaintiff maintains that it retains a right of concurrence regarding the flow changes 24
25 6 The Court also finds it unnecessary to definitively address at this time Plaintiff’s more unusual allegation that Federal Defendants’ failure to seek Plaintiff’s concurrence in the WFV Project qualifies as a “failure to act” that is 26 independently cognizable under the APA. The Court notes, however, that facts and circumstances of this case do not obviously fit within the failure to act caselaw. Among other things, an APA “failure to act” claim “can proceed only 27 where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004). If Plaintiff intends to pursue a failure to act theory in this case, it will 28 have to contend with the Court’s findings herein, namely that CVPIA § 3406(b)(23) does not appear to articulate the 1 recommended by the TMC. This assertion is premised on the language of CVPIA § 3406(b)(23), 2 which provides in full: 3 (b) . . . . The Secretary, in consultation with other State and Federal agencies, Indian tribes, and affected interests, is [ ] authorized and 4 directed to: 5 *** 6 (23) In order to meet Federal trust responsibilities to protect the fishery resources of the Hoopa Valley Tribe, and to meet the fishery 7 restoration goals of the Act of October 24, 1984, Pub. L. 98-541, provide through the Trinity River Division, for water years 1992 8 through 1996, an instream release of water to the Trinity River of not less than 340,000 acre-feet per year for the purposes of fishery 9 restoration, propagation, and maintenance and, 10 (A) By September 30, 1996, the Secretary, after consultation with the Hoopa Valley Tribe, shall complete the Trinity 11 River Flow Evaluation Study currently being conducted by the U.S. Fish and Wildlife Service under the mandate of the 12 Secretarial Decision of January 14, 1981, in a manner which insures the development of recommendations, based on the 13 best available scientific data, regarding permanent instream fishery flow requirements and Trinity River Division 14 operating criteria and procedures for the restoration and maintenance of the Trinity River fishery; and 15 (B) Not later than December 31, 1996, the Secretary shall 16 forward the recommendations of the Trinity River Flow Evaluation Study, referred to in subparagraph (A) of this 17 paragraph, to the Committee on Energy and Natural Resources and the Select Committee on Indian Affairs of 18 the Senate and the Committee on Interior and Insular Affairs and the Committee on Merchant Marine and Fisheries of the 19 House of Representatives. If the Secretary and the Hoopa Valley Tribe concur in these recommendations, any increase 20 to the minimum Trinity River instream fishery releases established under this paragraph and the operating criteria 21 and procedures referred to in subparagraph (A) shall be implemented accordingly. If the Hoopa Valley Tribe and the 22 Secretary do not concur, the minimum Trinity River instream fishery releases established under this paragraph 23 shall remain in effect unless increased by an Act of Congress, appropriate judicial decree, or agreement between 24 the Secretary and the Hoopa Valley Tribe. Costs associated with implementation of this paragraph shall be reimbursable 25 as operation and maintenance expenditures pursuant to existing law. 26 If the Secretary and the State of California determine that 27 long-term natural fishery productivity in all Central Valley Project controlled rivers and streams resulting from 28 implementation of this section exceeds that which existed in 1 the absence of Central Valley Project facilities, the costs of implementing those measures which are determined to 2 provide such enhancement shall become credits to offset reimbursable costs associated with implementation of this 3 subsection. 4 Broken down, §3406(b)(23) accomplishes several things. First, it directs the Secretary of 5 the Interior (“Secretary”) to release into the Trinity River “not less than 340,000 acre-feet per 6 year for the purposes of fishery restoration, propagation, and maintenance” from 1992 (the year 7 of the CVPIA’s passage) to at least 1996. Second, it requires completion of the Trinity River 8 Flow Evaluation Study (“Flow Study”) “after consultation with the Hoopa Valley Tribe” and “in 9 a manner which ensures the development of recommendations, based on the best available 10 scientific data, regarding permanent instream fishery flow requirements and Trinity River 11 Division operating criteria and procedures for the restoration and maintenance of the Trinity 12 River fishery.” Id., § 3406(b)(23)(A). Finally, if the Secretary and the Hoopa Valley Tribe concur 13 in the recommendations contained within the Flow Study, the Secretary “shall” implement: 14 (a) any recommended increases to the 340,000 acre-foot-per year minimum Trinity River 15 instream fishery releases established under § 3406(b)(23), and (b) the operating criteria and 16 procedures set forth in the Flow Study. Id., § 3406(b)(23)(A). Alternatively, if the Secretary and 17 Hoopa did not mutually agree with the recommendations of the Flow Evaluation Study, the 18 minimum annual volume of 340,000 acre-feet would remain in place absent an Act of Congress, a 19 judicial decree, or a subsequent agreement between the Secretary and Hoopa. Id. 20 The Flow Study was completed in 1999 by Federal Defendants and Plaintiff. (Doc. 138-1 21 (“Flow Study”).) The Flow Study made several recommendations relevant here. First, it 22 recommended that the 340,000 acre-foot per year minimum set forth in CVPIA 3406(b)(23) be 23 increased significantly, according to water year type as follows: 24 Water Year Class Annual Instream Volume 25 Extremely Wet 815,200 26 Wet 701,000 Normal 646,900 27 Dry 452,600 Critically Dry 368,600 28 1 (Flow Study at p. xxxi.) Second, the Flow Study included in its Appendix M daily flow schedule 2 that prescribe specific, daily release volumes from Lewiston Dam to the Trinity River. 3 Specifically, from October 1 through October 15 each year, releases were set at 450 cubic feet per 4 second (cfs); from October 16 through April 21 of each year, releases were set at 300 cfs. (Id. at 5 p. M-2–M-3.) Finally, the Flow Study recommended the use of Adaptive Environmental 6 Assessment and Management (AEAM)7 to “guide future management and ensure the restoration 7 and maintenance of the fishery resources of the Trinity River.” (Id. at p. xxv.) In invoking 8 AEAM, the Flow Study acknowledged: 9 Alluvial river systems are complex and dynamic. While our understanding of these systems and our predictive capabilities are 10 extensive some uncertainty over how the river and the fishery resources will react to the proposed recommendations still exists. 11 Nonetheless resource managers must make decisions and implement plans despite these uncertainties. AEAM provides a 12 structured mechanism for fine-tuning management recommendations in relation to the recommended flows, sediment 13 management, and channel rehabilitation activities.” 14 (Id. at p xxxv (emphasis added).) 15 The Flow Study laid out the central components of the recommended AEAM program, 16 including the formation of the TMC, which would be supported by other teams, including a 17 Technical Modeling an Analysis Team, and a Scientific Advisory Board. (Id. at p. 287–88.) 18 According to the Flow Study, “[t]he TMC would approve fishery restoration plans and any 19 proposed changes to annual operating schedules submitted by the Technical Modeling and 20 Analysis Team.” (Id. at p. 287.) 21 In 2000, Reclamation issued the TRROD, which adopted the Flow Study’s 22 recommendations. (TRROD at p. 8 (“The Preferred Alternative, as described in the FEIS/EIR8 23 and summarized in this ROD, adopts the recommendations contained in the [Flow Study].”); see 24 also Doc. 118-7 (FEIS/EIR).) This included adoption of the increased annual instream volumes 25
26 7 The Flow Study defines AEAM as “a formal, systematic, and rigorous program of learning from the outcomes of management actions, accommodating change, and improving management.” (Flow Study at p. N-2.) 27 8 The specific implementation plan for the TRROD is set forth in a Final Environmental Impact Statement/ 28 Environmental Impact Report (“FEIS/EIR”) that is incorporated into the TRROD by reference. (TRRROD at p. 26.) 1 provided in the table above. (TRROD at p. 12-13, set forth in “Table 1”). In addition, the 2 TRROD adopted the recommended daily flow schedule included in Appendix M, and the AEAM 3 program. (See id. at p. 10.) The TRROD specifically discusses the AEAM as a component of the 4 “selected alternative”: 5 AEAM Program, guided by a Trinity Management Council (TMC) established as part of this decision and by sound scientific 6 principles, will ensure the proper implementation of these measures, conduct appropriate scientific monitoring and evaluation 7 efforts, and recommend possible adjustments to the annual flow schedule within the designated flow volumes provided for in this 8 ROD or other measures in order to ensure that the restoration and maintenance of the Trinity River anadromous fishery continues 9 based on the best available scientific information and analysis. 10 (Id. at p.3.) The TRROD also specifically delineates what can and cannot be modified by the 11 AEAM program: 12 Based on subsequent monitoring and studies guided by the Trinity Management Council, the schedule for releasing water on a daily 13 basis, according to that year’s hydrology, may be adjusted but the annual flow volumes established in Table 1 may not be changed. 14 15 (Id. at p. 12 (emphasis added).) 16 Hoopa formally concurred in and agreed with the TRROD’s recommendations and 17 decisions by way of a tribal resolution dated December 18, 2000. (See id. at p. 26.) The then- 18 Chairperson of the Tribe signed the TROOD on December 19, 2000. (Id.) 19 On October 29, 2003, the TMC’s formal by-laws were adopted by the founding members 20 of the TMC. (Doc. 118-1 (“TMC By-Laws”.) Among the signatories was a representative of 21 Plaintiff. (Id. at 9.) Section 201 of the TMC By-Laws lists the “specific purposes” of the TMC, 22 which include “[e]stablish[ing] and guide[ing] implementation of an adaptive management 23 program to implement and monitor the physical and biological components of the [TRROD and 24 FEIS/EIR]” and “guid[ing] the development of recommended annual flow schedules.” (Id. at 3.) 25 Section 603 sets forth the voting procedure for setting policy and making decisions: 26 SECTION 603. VOTING RIGHTS, MAJORITY. It is the intent of the TMC that as designated representatives of member agencies and 27 tribes, there will be active participation in setting policy and making decisions for the Program. No member shall have more than one 28 vote. An affirmative vote of 7 is required to pass a motion when all 1 8 members are present. Six affirmative votes are required to pass a motion when only a quorum of 6 or 7 members are present. 2 (Id. at 7.) 3 According to the SAC, in late 2021, Reclamation proposed implementing a version of the 4 WFV Project during the 2022 Water Year,9 (SAC, ¶ 10), but a TMC vote to recommend 5 implementation did not pass. (Id., ¶ 110.) Reclamation did not implement the WFV Project in 6 Water Year 2022. (Id.) 7 As mentioned above, on December 7, 2022, the TMC voted 7-1 in favor of recommending 8 implementation of the WFV Project in the 2023 Water Year, with Plaintiff voting against 9 adoption. (See SAC, ¶ 112; see also Docs. 118-2 at 10 (12/7/22 TMC minutes).) On January 30, 10 2023, Federal Defendants adopted the TMC’s recommendation, over Hoopa’s objections. (Id., ¶¶ 11 114–16.) 12 2. Analysis 13 The Court now turns to Plaintiff’s essential argument: that it retains “concurrence” right— 14 that effectively amounts to a veto—over any decision to change the daily release schedule set 15 forth at Appendix M of the Flow Study and incorporated into the TRROD. At its core, this is a 16 statutory interpretation argument based on CVPIA § 3406(b)(23). As with all statutory 17 interpretation questions, the Court begins with the text itself; the inquiry ends there if the text is 18 unambiguous. GCIU-Emp. Ret. Fund v. MNG Enterprises, Inc., 51 F.4th 1092, 1097 (9th Cir. 19 2022). “If the statutory language is plain, [the court] must enforce it according to its terms.” King 20 v. Burwell, 576 U.S. 473, 486 (2015). In doing so, the court “must read the words in their context 21 and with a view to their place in the overall statutory scheme.” Id. (internal quotations and 22 citations omitted). 23 The Court has quoted the text of § 3406(b)(23) above in its entirety but produces it here 24 again, this time with emphasis on the language the Court believes is particularly important to its 25 analysis: 26 /// 27
28 9 A “Water Year” runs from October 1 – September 30. (See SAC, ¶ 110.) So, for example, Water Year 2022 ran 1 (b) . . . . The Secretary, in consultation with other State and Federal agencies, Indian tribes, and affected interests, is [ ] authorized and 2 directed to: 3 *** 4 (23) In order to meet Federal trust responsibilities to protect the fishery resources of the Hoopa Valley Tribe, and to meet the fishery 5 restoration goals of the Act of October 24, 1984, Pub. L. 98-541, provide through the Trinity River Division, for water years 1992 6 through 1996, an instream release of water to the Trinity River of not less than 340,000 acre-feet per year for the purposes of fishery 7 restoration, propagation, and maintenance and, 8 (A) By September 30, 1996, the Secretary, after consultation with the Hoopa Valley Tribe, shall complete 9 the Trinity River Flow Evaluation Study currently being conducted by the U.S. Fish and Wildlife Service under the 10 mandate of the Secretarial Decision of January 14, 1981, in a manner which insures the development of 11 recommendations, based on the best available scientific data, regarding permanent instream fishery flow 12 requirements and Trinity River Division operating criteria and procedures for the restoration and maintenance of the 13 Trinity River fishery; and 14 (B) Not later than December 31, 1996, the Secretary shall forward the recommendations of the Trinity River Flow 15 Evaluation Study, referred to in subparagraph (A) of this paragraph, to the Committee on Energy and Natural 16 Resources and the Select Committee on Indian Affairs of the Senate and the Committee on Interior and Insular Affairs 17 and the Committee on Merchant Marine and Fisheries of the House of Representatives. If the Secretary and the Hoopa 18 Valley Tribe concur in these recommendations, any increase to the minimum Trinity River instream fishery 19 releases established under this paragraph and the operating criteria and procedures referred to in 20 subparagraph (A) shall be implemented accordingly. If the Hoopa Valley Tribe and the Secretary do not concur, the 21 minimum Trinity River instream fishery releases established under this paragraph shall remain in effect unless increased 22 by an Act of Congress, appropriate judicial decree, or agreement between the Secretary and the Hoopa Valley 23 Tribe. Costs associated with implementation of this paragraph shall be reimbursable as operation and 24 maintenance expenditures pursuant to existing law. 25 If the Secretary and the State of California determine that long-term natural fishery productivity in all Central Valley 26 Project controlled rivers and streams resulting from implementation of this section exceeds that which existed in 27 the absence of Central Valley Project facilities, the costs of implementing those measures which are determined to 28 provide such enhancement shall become credits to offset 1 reimbursable costs associated with implementation of this subsection. 2 3 (Emphasis added.) 4 Though the plain language of the statute indisputably gives Hoopa a concurrence right, 5 that right is defined by the language of the statute, which must be read in context. Specifically, 6 Hoopa was given the right to “concur in these recommendations.” § 3406(b)(23)(B). The “these 7 recommendations” language is a direct and unambiguous reference to the anticipated 8 recommendations of the Flow Study, which was discussed in detail in the immediately preceding 9 paragraph. § 3406(b)(23)(A).10 10 The statute further provides that if Hoopa gives its concurrence in the Flow Study’s 11 recommendations, “any increase to the minimum Trinity River instream fishery releases 12 established under [§ 3406(b)(23)] and the operating criteria and procedures referred to in 13 subparagraph (A) shall be implemented accordingly.” It is likewise unambiguous that the 14 “minimum Trinity River instream fishery releases” refers to the minimum 340,000 acre-feet per 15 year that the Secretary was directed to provide unless and until new minimums were set, either by 16 concurrence between the Secretary and Hoopa or by an Act of Congress. The “operating criteria 17 and procedures” language references the criteria and procedures that the Flow Study was 18 anticipated to (and would eventually) recommend. 19 As mentioned, the Flow Study’s recommendations were eventually embodied in the 20 TRROD and included the AEAM procedures that were followed when the TMC recommended 21 making changes to the daily flow schedules. Nothing in the statutory language suggests that 22 Hoopa retains an ongoing “concurrence right” regarding recommendations made or actions taken 23 within the scope of the TRROD’s AEAM procedures—procedures with which Hoopa has 24 already concurred. On the present record, the Court finds that the text of § 3406(b)(23) is simply 25 not amenable to Plaintiff’s position. 26 10 Relatedly, the statute delineates exactly what the Flow Study’s recommendations would encompass. The Secretary 27 is directed to complete the Trinity River Flow Evaluation Study (after having consulted with Plaintiff) to “develop[] recommendations, based on the best available scientific data, regarding permanent instream fishery flow 28 requirements and Trinity River Division operating criteria and procedures for the restoration and maintenance of the 1 Moreover, to the extent extrinsic evidence is even relevant given what appears at this 2 | stage to be unambiguous statutory language, the Court could not locate any reference in any of 3 | the relevant decision documents (the Flow Study, the TRROD, and the lengthy FEIS/EIR) that 4 | suggests Hoopa retains a veto power over decisions that fall within the scope of the TMC’s 5 | authority. 6 The Court is not persuaded by any of Plaintiff's arguments in reply. For the most part, 7 | those arguments do not directly address the statutory language and are therefore largely 8 | unhelpful. For example, Plaintiff cites Section 301 of the TMC By-Laws, which states that □□□□□□ 9 | federal, state, and local agencies and tribes shall retain their existing authorities, and reserve the 10 | right to comply with internal policies and procedures.” (Doc. 118-1 at 4.) This generic language 11 | does nothing to change the fact that the concurrence right Hoopa claims to possess does not 12 | appear in § 3406(b)(23). 13 For the reasons set forth above, the Court finds that there is no likelihood of success on 14 || the merits. For the same reasons, the Court finds there are no “serious questions” going to the 15 merits. As a result, and in the interest of expedience, the Court finds it unnecessary to address the 16 | other prongs of the injunctive relief test. Consequently, the Court DENIES Hoopa Valley tribe’s 17 | motion for preliminary injunction. (Doc. 108) 18 19 IT IS SO ORDERED. 29 | Dated: _ February 7, 2023 Charis [Tourn TED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 16