1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10 PACIFIC COAST FEDERATION OF No. 1:20-cv-00431-DAD-EPG 11 FISHERMEN’S ASSOCIATIONS, et al., ORDER REGARDING FURTHER 12 Plaintiff, SCHEDULING AND STATUS OF 13 PENDING MOTION v. 14 GINA RAIMONDO1, et al., 15 Defendants. 16 17 THE CALIFORNIA NATURAL No. 1:20-cv-00426-DAD-EPG 18 RESOURCES AGENCY, et al., ORDER REGARDING FURTHER 19 Plaintiffs, SCHEDULING AND STATUS OF PENDING MOTIONS 20 v.
21 GINA RAIMONDO, et al., 22 Defendants. 23 24
25 ///// 26 1 Gina Raimondo was sworn in as Secretary of Commerce on March 3, 2021. The Clerk of the 27 Court is directed to substitute her in as the defendant in this action in place of named defendant Wilbur Ross. See Fed. R. Civ. P. 25(d). As necessary, the respective plaintiffs in these cases are 28 directed to file a notice with the court addressing the need to update any other named official 1 Plaintiffs2 in the above-captioned actions bring closely related claims against the National 2 Marine Fisheries Service (“NMFS”), the U.S. Fish and Wildlife Service (“FWS”), the U.S. 3 Bureau of Reclamation (“Reclamation”), and various official representatives of those agencies 4 (collectively, “Federal Defendants”). (CNRA, Doc. No. 51; PCFFA, Doc. No. 52.) Both cases 5 involve challenges to the adoption by NMFS and FWS, respectively, of a pair of “biological 6 opinions” issued in 2019 pursuant to the Endangered Species Act (“ESA”), 16 U.S.C § 1531 et 7 seq. Those biological opinions address the impact of Reclamation’s updated plan for the long- 8 term operation of the Central Valley Project (“CVP”) and the State Water Project (“SWP”) (the 9 “Proposed Action”) on various ESA-listed species. 10 These cases have been stayed for some time to allow the Federal Defendants time to 11 reinitiate consultation under Section 7 of the ESA regarding the challenged biological opinions; to 12 allow federal and state regulators to engage in a process designed to “reconcile” the Proposed 13 Action as evaluated in the challenged biological opinions with parallel species protection 14 measures imposed by state regulators; and to conserve federal agency staff resources that are 15 needed to deal with the ongoing drought emergency impacting CVP/SWP operations. (See Doc. 16 No. 285.)3 17 In a joint status report filed October 14, 2021, Federal Defendants reported that they, 18 along with the California Department of Water Resources (“DWR”), which manages the SWP, 19 have formally requested to reinitiate ESA consultation on the Proposed Action, which will 20 eventually result in the issuance of revised biological opinions governing CVP and SWP 21 operations. (Doc. No. 296 at 2.) Federal Defendants also indicate that it may take several years 22 for the biological opinions to be revised and re-issued. (Id.) Federal Defendants further report 23 that they and the State Plaintiffs have reached agreement in the context of the CNRA case as to 24 2 Plaintiffs in Pacific Coast Federation of Fishermen’s Associations v. Ross, 1:20-cv-00431- 25 DAD-EPG (PCFFA), are a coalition of six environmental organizations (collectively referenced 26 herein as “PCFFA”). Plaintiffs in California Natural Resources Agency v. Ross, No. 1:20-cv- 00426-DAD-EPG (CNRA), are the People of the State of California, California’s Natural 27 Resources Agency, and California’s Environmental Protection Agency (“State Plaintiffs”).
28 3 Unless otherwise noted, the docket references in this order are to the docket numbers in 1 how the CVP and SWP should be operated through September 30, 2022 while reinitiated 2 consultation is ongoing. (Id.) That agreement is described in a five-page attachment to the 3 parties’ joint status report. (Doc. No. 296-1.) Federal Defendants propose to file a joint motion 4 with State Plaintiffs seeking “adoption” of the interim operations plan and a further stay of this 5 litigation through September 30, 2022. (Doc. No 296 at 3.)4 Federal Defendants seek approval to 6 file that joint motion by November 9, 2021, with a hearing date on the motion of December 21, 7 2021, and a stay of both cases at least until that motion is resolved by the court. (Id.) 8 Federal Defendants acknowledge that there are several motions pending in these cases that 9 would be impacted by a further stay. The parties to CNRA agree that the motions pending in that 10 case—a motion to dismiss one claim and a motion to complete the administrative record—should 11 remain stayed. (Id. at 4.) The court sees no reason to disturb this agreement and will continue to 12 hold those motions in abeyance. However, there is no such agreement as to the fate of the motion 13 to complete the administrative record motion that is pending in the PCFFA case. That motion is 14 discussed below. 15 In response to the court’s inquiry (Doc. No. 297), Federal Defendants further agree to 16 release to all parties by October 22, 2021 two sets of information: (1) modeling performed by 17 DWR underlying the proposed interim operational plan; and (2) modeling conducted for other 18 purposes in August 2021 by the NMFS Southwest Fisheries Science Center. (Doc. No. 298 at 2.) 19 Except for the above-described agreements, the joint status report unfortunately reveals 20 widespread disagreement among the parties as to the path forward for these complex cases. The 21 court will only briefly address here those disputes that impact the immediate scheduling needs in 22 these cases. First, the court will address scheduling related to the proposed joint motion for 23 approval/stay. Then, the court will address the dispute over the status of PCFFA’s motion to 24 complete the administrative record. 25 ///// 26 ///// 27 4 For the sake of expedience, the court will refer to this proposed motion as a “motion for 28 approval/stay,” even though it remains unclear exactly what form such a motion would take or 1 A. Scheduling of Proposed Motion for Approval/Stay 2 Although Federal Defendants and State Plaintiffs have managed to achieve agreement on 3 the shape of interim operations during the re-initiated consultation period, none of the other 4 parties agree to the proposed interim operations plan as currently structured. PCFFA does not 5 oppose the specific changes contained within the proposed interim operations plan but insists that 6 it is not protective enough. (Doc. Nos. 296 at 5; 301 at 2–3.) The various defendant intervenors 7 contend, among other things, that changes to operations are unnecessary, adopting those changes 8 would violate several federal statutes, and that implementing the proposed changes would result 9 in a breach of Reclamation’s contractual obligations to senior water rights holders. (See Doc. No. 10 296 at 8–19.)5 11 The only thing that is clear to the court at this point is that the disputes are likely to be 12 complex and difficult to adjudicate quickly. Although the court is sympathetic to PCFFA’s 13 request that the motion for approval/stay one week earlier than Federal Defendants propose (i.e., 14 on November 2, 2021 as opposed to November 9, 2021), the court is concerned that accelerating 15 the pace of this litigation will diminish the quality and efficiency of the briefing received by the 16 court and will hamper efforts to reach further agreement among the parties.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10 PACIFIC COAST FEDERATION OF No. 1:20-cv-00431-DAD-EPG 11 FISHERMEN’S ASSOCIATIONS, et al., ORDER REGARDING FURTHER 12 Plaintiff, SCHEDULING AND STATUS OF 13 PENDING MOTION v. 14 GINA RAIMONDO1, et al., 15 Defendants. 16 17 THE CALIFORNIA NATURAL No. 1:20-cv-00426-DAD-EPG 18 RESOURCES AGENCY, et al., ORDER REGARDING FURTHER 19 Plaintiffs, SCHEDULING AND STATUS OF PENDING MOTIONS 20 v.
21 GINA RAIMONDO, et al., 22 Defendants. 23 24
25 ///// 26 1 Gina Raimondo was sworn in as Secretary of Commerce on March 3, 2021. The Clerk of the 27 Court is directed to substitute her in as the defendant in this action in place of named defendant Wilbur Ross. See Fed. R. Civ. P. 25(d). As necessary, the respective plaintiffs in these cases are 28 directed to file a notice with the court addressing the need to update any other named official 1 Plaintiffs2 in the above-captioned actions bring closely related claims against the National 2 Marine Fisheries Service (“NMFS”), the U.S. Fish and Wildlife Service (“FWS”), the U.S. 3 Bureau of Reclamation (“Reclamation”), and various official representatives of those agencies 4 (collectively, “Federal Defendants”). (CNRA, Doc. No. 51; PCFFA, Doc. No. 52.) Both cases 5 involve challenges to the adoption by NMFS and FWS, respectively, of a pair of “biological 6 opinions” issued in 2019 pursuant to the Endangered Species Act (“ESA”), 16 U.S.C § 1531 et 7 seq. Those biological opinions address the impact of Reclamation’s updated plan for the long- 8 term operation of the Central Valley Project (“CVP”) and the State Water Project (“SWP”) (the 9 “Proposed Action”) on various ESA-listed species. 10 These cases have been stayed for some time to allow the Federal Defendants time to 11 reinitiate consultation under Section 7 of the ESA regarding the challenged biological opinions; to 12 allow federal and state regulators to engage in a process designed to “reconcile” the Proposed 13 Action as evaluated in the challenged biological opinions with parallel species protection 14 measures imposed by state regulators; and to conserve federal agency staff resources that are 15 needed to deal with the ongoing drought emergency impacting CVP/SWP operations. (See Doc. 16 No. 285.)3 17 In a joint status report filed October 14, 2021, Federal Defendants reported that they, 18 along with the California Department of Water Resources (“DWR”), which manages the SWP, 19 have formally requested to reinitiate ESA consultation on the Proposed Action, which will 20 eventually result in the issuance of revised biological opinions governing CVP and SWP 21 operations. (Doc. No. 296 at 2.) Federal Defendants also indicate that it may take several years 22 for the biological opinions to be revised and re-issued. (Id.) Federal Defendants further report 23 that they and the State Plaintiffs have reached agreement in the context of the CNRA case as to 24 2 Plaintiffs in Pacific Coast Federation of Fishermen’s Associations v. Ross, 1:20-cv-00431- 25 DAD-EPG (PCFFA), are a coalition of six environmental organizations (collectively referenced 26 herein as “PCFFA”). Plaintiffs in California Natural Resources Agency v. Ross, No. 1:20-cv- 00426-DAD-EPG (CNRA), are the People of the State of California, California’s Natural 27 Resources Agency, and California’s Environmental Protection Agency (“State Plaintiffs”).
28 3 Unless otherwise noted, the docket references in this order are to the docket numbers in 1 how the CVP and SWP should be operated through September 30, 2022 while reinitiated 2 consultation is ongoing. (Id.) That agreement is described in a five-page attachment to the 3 parties’ joint status report. (Doc. No. 296-1.) Federal Defendants propose to file a joint motion 4 with State Plaintiffs seeking “adoption” of the interim operations plan and a further stay of this 5 litigation through September 30, 2022. (Doc. No 296 at 3.)4 Federal Defendants seek approval to 6 file that joint motion by November 9, 2021, with a hearing date on the motion of December 21, 7 2021, and a stay of both cases at least until that motion is resolved by the court. (Id.) 8 Federal Defendants acknowledge that there are several motions pending in these cases that 9 would be impacted by a further stay. The parties to CNRA agree that the motions pending in that 10 case—a motion to dismiss one claim and a motion to complete the administrative record—should 11 remain stayed. (Id. at 4.) The court sees no reason to disturb this agreement and will continue to 12 hold those motions in abeyance. However, there is no such agreement as to the fate of the motion 13 to complete the administrative record motion that is pending in the PCFFA case. That motion is 14 discussed below. 15 In response to the court’s inquiry (Doc. No. 297), Federal Defendants further agree to 16 release to all parties by October 22, 2021 two sets of information: (1) modeling performed by 17 DWR underlying the proposed interim operational plan; and (2) modeling conducted for other 18 purposes in August 2021 by the NMFS Southwest Fisheries Science Center. (Doc. No. 298 at 2.) 19 Except for the above-described agreements, the joint status report unfortunately reveals 20 widespread disagreement among the parties as to the path forward for these complex cases. The 21 court will only briefly address here those disputes that impact the immediate scheduling needs in 22 these cases. First, the court will address scheduling related to the proposed joint motion for 23 approval/stay. Then, the court will address the dispute over the status of PCFFA’s motion to 24 complete the administrative record. 25 ///// 26 ///// 27 4 For the sake of expedience, the court will refer to this proposed motion as a “motion for 28 approval/stay,” even though it remains unclear exactly what form such a motion would take or 1 A. Scheduling of Proposed Motion for Approval/Stay 2 Although Federal Defendants and State Plaintiffs have managed to achieve agreement on 3 the shape of interim operations during the re-initiated consultation period, none of the other 4 parties agree to the proposed interim operations plan as currently structured. PCFFA does not 5 oppose the specific changes contained within the proposed interim operations plan but insists that 6 it is not protective enough. (Doc. Nos. 296 at 5; 301 at 2–3.) The various defendant intervenors 7 contend, among other things, that changes to operations are unnecessary, adopting those changes 8 would violate several federal statutes, and that implementing the proposed changes would result 9 in a breach of Reclamation’s contractual obligations to senior water rights holders. (See Doc. No. 10 296 at 8–19.)5 11 The only thing that is clear to the court at this point is that the disputes are likely to be 12 complex and difficult to adjudicate quickly. Although the court is sympathetic to PCFFA’s 13 request that the motion for approval/stay one week earlier than Federal Defendants propose (i.e., 14 on November 2, 2021 as opposed to November 9, 2021), the court is concerned that accelerating 15 the pace of this litigation will diminish the quality and efficiency of the briefing received by the 16 court and will hamper efforts to reach further agreement among the parties. Accordingly, the 17 court will allow the motion to approve/stay to be filed on or before November 9, 2021.6 All 18 parties are directed to meet and confer regarding an appropriate briefing schedule with the 19 following conditions: 20 ///// 21 5 One defendant intervenor additionally advocates what it sees as a “better path forward” by 22 inviting the relevant federal and state agencies to undertake a “collaborative planning approach” 23 akin to one being employed by the Northern California Water Association’s Dry Year Task Force. (Doc. No. 296 at 17.) The never-ending disputes over CVP and SWP operations that have 24 passed through this federal courthouse over the past several decades suggest that a court is not necessarily the best place to achieve lasting solutions to resource management problems this 25 complex. Accordingly, the court would certainly support any alternative efforts to which all 26 parties might agree, including mediation, settlement conference, and/or the appointment of a special master. 27 6 The court finds it at this time unnecessary to address defendant-intervenors’ concerns that 28 implementing the interim operations plan will violate other federal statutes. The court assumes 1 (1) Given the ongoing emergency caused by the lack of adequate judicial 2 resources in this district, the court is unlikely to be able to approve significant expansions 3 of its standard page limits, particularly if the parties expect the court rule on issues 4 presented on an expedited basis. With that in mind, the parties are directed to work to 5 isolate those issues that must be decided rapidly and are to present only the most urgent 6 issues to the court for decision in the coming weeks in as concise a manner as possible. If 7 necessary, additional issues may be presented in another round of future briefing. 8 (2) With the above in mind, on or before October 29, 2021, the parties shall file a 9 stipulation setting forth all areas of agreement regarding briefing. Any areas of 10 disagreement shall be presented concisely in the form of competing proposed schedules 11 (without argument) in a separate joint status report also due October 29, 2021. 12 B. Motion to Complete the Administrative Record in PCFFA 13 As mentioned, PCFFA does not agree to a further stay of their pending motion to 14 complete the administrative record, originally filed in December 2020. (Id. at 5–6; see also Doc. 15 No. 224.) Federal Defendants have yet to file their opposition to that motion. Federal Defendants 16 correctly point out that because consultation has been reinitiated, future judicial review of any 17 revised biological opinions will be based on an entirely new administrative record. Given this, 18 Federal Defendants continue to maintain that it would be a waste of the parties’ resources for 19 them to prepare an opposition to the pending administrative record motion, and it would likewise 20 be a waste of scarce judicial resources for the court to adjudicate that motion. As this court has 21 indicated in the past, Federal Defendants seem to be assuming that merely re-initiating 22 consultation will moot the remainder of the PCFFA lawsuit. This is not necessarily the case. See 23 NRDC v. Norton, No. 1:05-cv-01207-OWW-LJO, 2007 WL 14283, at *6 (E.D. Cal. Jan. 3, 2007) 24 (declining to stay challenge to earlier version of the biological opinions at issue in this case where 25 defendants continued to rely on challenged biological opinion despite re-initiation of consultation 26 and the parties failed to reach an interim agreement as to how to operate the CVP and SWP while 27 the re-consultation took place). The court agrees with the PCFFA plaintiffs (see Doc. No. 301 at 28 3) that, absent an agreement between Federal Defendants and PCFFA as to the interim 1 operational plan and/or concessions from Federal Defendants as to the merits of PCFFA’s 2 challenges to the biological opinions, PCFFA likely will be required to demonstrate a likelihood 3 of success on the merits of their claims as a part of any effort to advocate for the adoption of 4 interim measures more protective than those currently being proposed by Federal Defendants and 5 State Plaintiffs. The cases cited by Federal Defendants in this regard are not on point. For 6 example, Western Exploration LLC v. U.S. Dept. of Interior, 250 F. Supp. 3d 718, 729 (D. Nev. 7 2017), involved an agency decision that was found on summary judgment to be in violation of the 8 National Environmental Policy Act (“NEPA”) and remanded for the preparation of appropriate 9 NEPA documentation. The fact that the court in Western Exploration found a parallel motion to 10 supplement the administrative record “moot” in light of the remand, see id. at 729, is not 11 particularly relevant here, where the merits of PCFFA’s claims have not been conceded or ruled 12 upon by the court. The other case cited by Federal Defendants, Accrediting Council for Indep. 13 Colls. & Sch. v. Devos, 303 F. Supp. 3d 77, n.7 (D.D.C. 2018), presents a procedural situation 14 indistinguishable from Western Exploration and therefore also has no apparent application here. 15 Although the court has not performed exhaustive independent research, the caselaw seems 16 to support PCFFA’s position that a complete administrative record may be necessary to the 17 resolution of the kinds of disputes likely to arise in connection with the motion for approval/stay. 18 See Doe #1 v. Trump, 423 F. Supp. 3d 1040, 1046 (D. Or. 2019) (rejecting the defendant agency’s 19 argument that the administrative record should not be ordered produced in the context of a 20 preliminary injunction, noting the administrative record may be necessary to support a 21 preliminary injunction request). One district court has questioned whether an agency defendant 22 should even be allowed to object to a plaintiff referring to documents that the agency considers 23 “outside” the administrative record if that record has not been finalized. See Earth Island Inst. v. 24 Evans, 256 F. Supp. 2d 1064, 1078 n. 16 (N.D. Cal. 2003). That same district court also 25 indicated that limitations on extra-record evidence likely apply on motions for preliminary 26 injunction. Id.; see also E. Bay Sanctuary Covenant v. Trump, 354 F. Supp. 3d 1094, 1107 (N.D. 27 Cal. 2018) (“[T]o the extent practicable, a court should determine a plaintiff's likelihood of 28 success on the merits of [ ] a challenge [premised on the Administrative Procedure Act] based on 1 | the administrative record.”), aff'd, 950 F.3d 1242 (9th Cir. 2020), and aff'd sub nom. E. Bay 2 | Sanctuary Covenant v. Biden, 993 F.3d 640 (9th Cir. 2021). The undersigned believes serious 3 | concerns would be raised if the limitations on extra-record evidence were to be applied in its 4 | consideration of any motion for injunctive relief without PCFFA having an opportunity to ensure 5 | that the record is complete. Accordingly, the court declines to further stay PCFFA’s motion to 6 || complete the administrative record and adopts the following procedure related to that pending 7 | motion: 8 (1) Federal Defendants shall respond to PCFFA’s motion to complete the 9 administrative record on or before November 2, 2021; Defendant-Intervenors may 10 respond on or before November 9, 2021 consistent with the conditions set forth in 11 previous stipulations regarding record-related motions (see Doc. Nos. 219, 270), PCFFA 12 shall reply on or before November 22, 2021. 13 (2) The court has preliminarily reviewed the pending motion and believes there 14 are opportunities for the parties to narrow their remaining disputes over the record. The 15 parties are therefore directed to engage in in good faith efforts to resolve as many of those 16 disputes as possible and to focus any further briefing on documents that are of pivotal 17 importance to the issues plaintiffs anticipate presenting to the court in relation to their 18 motion to approve/stay. 19 Except for the deadlines set forth above, all other deadlines in these related cases are 20 | stayed until the court is able to rule upon the anticipated motion to approve/stay. 21 | IT IS □□ ORDERED. sass - Dated: _ October 20, 2021 Lele 1 Y, yA 23 UNITED STATES DISTRICT JUDGE 24 25 26 27 28