Biological Opinions for the Sacramento-San Joaquin Delta: A Case Law Summary

Biological Opinions for the Sacramento-San Joaquin Delta: A Case Law Summary

Biological Opinions for the
Sacramento-San Joaquin Delta:
A Case Law Summary
Kristina Alexander
Legislative Attorney
January 14, 2015
Congressional Research Service
7-5700
www.crs.gov
R41876

Biological Opinions for the Sacramento-San Joaquin Delta: A Case Law Summary

Summary
For decades biologists, water users, and lawmakers (both federal and state) have attempted to
craft a system that meets the needs of California water users while ensuring sufficient usable
water for fish. Under California’s hybrid system of appropriative water rights, users are issued
permits for water diverted from rivers and streams regardless of the users’ proximity to the source
of water. The state of California has issued permits to the Bureau of Reclamation (the Bureau) to
store, divert, and deliver water from the federal Central Valley Project (CVP), which consists of
facilities on the Sacramento, Stanislaus, and San Joaquin Rivers, including the Shasta, New
Melones, and Friant Dams. The Bureau diverts CVP and State Water Project (SWP) water from
the southern portion of the Sacramento-San Joaquin Delta to the southern part of California.
Although the amount of water available from the CVP/SWP is relatively constant,
notwithstanding periods of drought and periods of excessive rain (e.g., El Niño years), the amount
of water diverted from major rivers and their tributaries has increased over time, and fish
populations have declined.
In the CVP/SWP watershed, the Endangered Species Act (ESA) protects multiple species or
populations of fish, including the endangered Sacramento River winter-run Chinook salmon, the
threatened Central Valley spring-run Chinook salmon, the threatened Central Valley steelhead, the
threatened Southern population of North American green sturgeon, and the threatened delta smelt.
The ESA requires the Bureau to consult with the Fish and Wildlife Service (FWS) or the National
Marine Fisheries Service (NMFS) (together, the Services) to see whether planned actions are
likely to jeopardize a listed species or damage critical habitat. (FWS is consulted for impacts
related to the Delta smelt. NMFS is consulted on potential impacts to salmon.) The consultation
process concludes with the Service issuing a biological opinion (BiOp) along with an incidental
take statement, allowing the federal action to proceed without prosecution for incidental harm to
listed species. If the Service finds the action is likely to jeopardize a listed species, a jeopardy
BiOp is issued, which will include reasonable and prudent alternatives (RPAs) to the planned
action to avoid extinction of a species. Otherwise a no-jeopardy BiOp is issued.
In 2004, the Long-Term Central Valley Project and State Water Project Operations Criteria and
Plan (OCAP) was issued by California and the Bureau to meet the system’s water needs. Pursuant
to OCAP, the Services issued both jeopardy and no-jeopardy opinions. Lawsuits challenged both
types of BiOp. If jeopardy was found, water users argued that the BiOp failed to consider impacts
on junior water users sufficiently. If no jeopardy was found, environmentalists and fishermen
argued that the BiOp did not fully consider the extent of the harm to the species. Judge Oliver W.
Wanger of the federal court for the Eastern District of California has found the BiOps or the RPAs
to be inadequate for various reasons, including failing to comply with the National Environmental
Policy Act (NEPA). (He retired from the bench at the end of September 2011.) In March 2014, the
Ninth Circuit held that the FWS BiOp was legally sufficient, reversing the district court, and in
January 2015, the Supreme Court refused to review the Ninth Circuit decision. In December
2014, the Ninth Circuit held that the NMFS BiOp was legally sufficient, again reversing the
district court. This report summarizes the proceedings on the BiOps issued since 2004.

Congressional Research Service

Biological Opinions for the Sacramento-San Joaquin Delta: A Case Law Summary

Contents
Proceedings Related to OCAP BiOps .............................................................................................. 1

Appendixes
Appendix A. List of Acronyms and Abbreviations Used in Table ................................................... 8
Appendix B. Brief Description of Cases in Table ............................................................................ 9

Contacts
Author Contact Information............................................................................................................. 9

Congressional Research Service

Biological Opinions for the Sacramento-San Joaquin Delta: A Case Law Summary

Proceedings Related to OCAP BiOps

Document
Case Name
Date
Title Summary
NRDC v. Norton, 1:05-
1/3/07 Order
Denying
Despite the fact that new BiOps were being prepared by both
cv-1207, 2007 WL
Motions for
FWS and NMFS, the court refused to dismiss as moot the
14283 (E.D. Cal. Jan. 3,
Dismissal,
cases chal enging the 2004 and 2005 BiOps. The court refused
2007)
Remand, and
to stay Bureau’s operations to pre-2004 levels or to
Stay
consolidate suit against FWS with Pacific Coast Federation’s
suit against NMFS. (Bureau reinitiated consultation with FWS
on OCAP after new data on delta smelt showed 2005 No
Jeopardy BiOp needed to be revisited. Bureau reinitiated
consultation with NMFS after species not listed at time of 2004
No Jeopardy BiOp became protected.)
NRDC v. Kempthorne,
5/25/07 Order
The court held the 2005 FWS BiOp conclusion that delta smelt
506 F. Supp. 2d 322
Remanding 2005 were not in jeopardy was arbitrary and capricious and
(E.D. Cal. 2007)
FWS BiOp
remanded to the agency. The court found that the BiOp’s take
limits were based on inadequate historical data that did not
reasonably estimate the delta smelt’s population. The court
also found that FWS did not consider available data on climate
change and the possible impacts on the smelt’s critical habitat.
Final y, the court was not convinced mitigation efforts were
reasonably certain to occur.
Pac. Coast Fed’n of
6/15/07 Dismissing The court dismissed Plaintiff’s NEPA claim that the Bureau was
Fishermen’s Ass’n/Inst.
NEPA Claim
required to prepare an EIS for the 2004 OCAP. The OCAP
for Fisheries Res. v.
was a descriptive document rather than a final agency action
Gutierrez, 1:06-cv-
because it was not the “last word" on the issue and lacked legal
00245, 2007 WL
effect.
1752289 (E.D. Cal. June
15, 2007)
NRDC v. Kempthorne,
7/3/07 Denying
TRO
The court refused to grant a TRO on the 2005 FWS BiOp to
1:05-cv-1207, 2007 WL
to Reduce
reduce water flow to downstream users, holding that the
1989015 (E.D. Cal. July
Water Flow
evidence did not prove the delta smelt faced irreparable harm.
3, 2007)
Provided by
The potential harm to the species did not outweigh the
FWS BiOp
potential harms to societal and economic interests from
reduced pumping.
NRDC v. Kempthorne,
12/14/07 Order
granting The court granted remedial relief that set flow limits and
1:05-cv-1207, 2007 WL
Interim
triggering events. The court also required that FWS draft a
4462391 (E.D. Cal. Dec.
Remedial Relief
new BiOp and stated that remedial relief would remain in place
14, 2007)
for Flow Limits
until the new BiOp was complete.
Pacific Coast Federation 5/20/08 Remanding
2004
The court held that the 2004 NMFS BiOp conclusion that
of Fishermen’s
NMFS BiOp
salmon and steelhead were not in jeopardy was arbitrary and
Associations v.
capricious and remanded to the agency. The BiOp failed to
Gutierrez, 606 F. Supp.
analyze the impact of global climate change and the damage to
2d 1122 (E.D. Cal.
salmon and steelhead critical habitats.
2008)
Congressional Research Service
1

Biological Opinions for the Sacramento-San Joaquin Delta: A Case Law Summary

Document
Case Name
Date
Title Summary
Pacific Coast Federation 7/18/08 Denying
The court refused to grant remedial relief of increased water
of Fishermen’s
Plaintiff’s
flows at Clear Creek and raised gates at the Red Bluff
Associations v.
Requests for
Diversion Dam while the new BiOp was being prepared based
Gutierrez, 606 F. Supp.
Emergency
on scientific and evidentiary disputes. The court found that the
2d 1195 (E.D. Cal.
Interim
NMFS 2004 BiOp could place the salmon and steelhead at great
2008)
Remedies while
risk of irreparable harm, and that the government failed to
New NMFS
prove that the project would not make extinction or
BiOp Being
destruction of critical habitats more likely.
Prepared
NRDC v. Kempthorne,
9/22/08 Order
The court extended the deadline for FWS to complete the
1:05-cv-01207, 2008
Extending Time
BiOp for the CVP from 9/15/2008 to 12/15/2008.
WL 4369308 (E.D. Cal.
for FWS to
Sept. 22, 2008)
Complete
Revised Delta
Smelt BiOp
BiOp 12/15/08
FWS
BiOp
FWS issued a BiOp pertaining to the effect of CVP and SWP on
Issued
delta smelt. FWS found the operations could jeopardize the
continued existence of the species.
Delta Smelt
3/3/09 Complaint
Filed
First complaint filed against 2008 FWS BiOp by San Luis &
Consolidated Cases,
that Became
Delta-Mendota Water Authority and Westlands Water
No. 1:09-cv-407 (E.D.
Delta Smelt
District. Five other complaints were filed and consolidated:
Cal. 2009)
Consolidated
Coalition for Sustainable Delta (1:09-cv-422); Metropolitan
Cases
Water District of Southern California (1:09-cv-631); State
Water Contractors (1:09-cv-480); Stewart and Jasper Orchards
(1:09-cv-892); Family Farm Alliance (1:09-cv-1201).
NRDC v. Kempthorne,
4/27/09 Renewal
of The court held that Bureau does not have to consult under
621 F. Supp. 2d 954
Senior Water
ESA for water contracts. Senior water rights contracts were
(E.D. Cal. 2009)
Rights
non-discretionary obligation for Bureau, so ESA did not apply.
Contracts Not
Subject to ESA
Delta Smelt
5/29/09 Granting
The court granted preliminary injunction of 2008 FWS BiOp
Consolidated Cases,
Preliminary
RPA Component 2. The court held that it was likely that FWS
1:09-CV-407, 2009 WL
Injunction to
had failed to comply with NEPA before issuing BiOp and did
1575169 (E.D. Cal. May
Halt FWS BiOp
not base holding on ESA.
29, 2009)
RPA
Component 2
BiOp 6/4/09
NMFS
BiOp
NMFS issued a BiOp pertaining to the effect of CVP and SWP
Issued
on Chinook salmon, steelhead trout, green sturgeon, and
southern resident killer whales. NMFS found the CVP/SWP
operations could jeopardize the continued existence of the
species.
Consolidated Salmonid
6/15/09 Complaint
Filed
San Luis & Delta-Mendota Water Authority and Westlands
Cases, 1:09-cv-1053
that Became
Water District file case, which becomes the Consolidated
(E.D. Cal. 2009)
Consolidated
Salmonid Cases upon 9/23/2009 consolidation with cases
Salmonid Cases
brought by Stockton East Water District, Metropolitan Water
District of Southern California, Oakdale Irrigation District,
Kern County Water Agency, and State Water Contractors.
Congressional Research Service
2

Biological Opinions for the Sacramento-San Joaquin Delta: A Case Law Summary

Document
Case Name
Date
Title Summary
NRDC v. Kempthorne,
9/1/09 Renewal
of The court rejected NRDC’s argument that Bureau failed to
1:05-cv-01207, 2009
CVPIA
perform ESA consultation for executing contracts under
WL 2849626 (E.D. Cal.
Contracts Not
CVPIA. The court held that contracts were nondiscretionary.
Sept. 1, 2009)
Subject to ESA
Also, because the contracts already allowed Bureau to stop
delivery if delta smelt would be harmed, there was no basis for
any ESA claim.
Consolid. Salmonid
9/3/09 Granting
Federal defendants (Department of Commerce, NOAA, NMFS,
Cases, 1:09-cv-1053
Intervention for
Department of the Interior, FWS, Bureau) are joined by
(E.D. Cal. 2009)
Defendant-
defendant intervenors: Pacific Coast Federation of Fishermen’s
Intervenors
Associations/Institute for Fisheries Resources, The Bay
Institute, Friends of the River, Natural Resources Defense
Council, Northern California Council of the Federation of Fly
Fishers, San Francisco Baykeeper, Sacramento River
Preservation Trust, and Winnemem Wintu Tribe.
Delta Smelt
9/4/09 Amended Plaintiffs, San Luis & Delta Mendota Water District and
Consolidated Cases,
Complaint
Westlands Water District, amended complaint to add Bureau
1:09-cv-407 (E.D. Cal.
as defendant.
2009)
NRDC v. Kempthorne,
9/23/09
Judgment
Resolved complaints by NRDC and others against Bureau and
1:05-cv-1207 (E.D. Cal.
FWS for 2005 BiOp and water flow issues. Notices of appeals
2009)
filed by Department of the Interior (11/19/2009) and NRDC
(11/25/2009).
Delta Smelt
10/15/09
RPAs are Not
The court rejected the summary judgment motion that FWS’s
Consolidated Cases,
Procedurally
failure to make findings within the 2008 FWS BiOp regarding
666 F. Supp. 2d 1137
Flawed
four factors in the regulatory definition of RPA was arbitrary
(E.D. Cal. 2009)
and capricious.
Delta Smelt
11/13/09 Requiring
The court held that Bureau’s implementation of the 2008 FWS
Consolidated Cases,
Bureau to
BiOp RPA was a major federal action. Bureau had to prepare
686 F. Supp. 2d 1026
Comply with
EIS before implementing BiOp. Summary judgment in favor of
(E.D. Cal. 2009)
NEPA for FWS
plaintiffs. Order issued 12/9/2009.
BiOp RPAs
Coalition for a
11/17/09 Consolidates The court granted FWS’s motion to sever claims against EPA
Sustainable Delta v. U.S.
2008 BiOp
and other agencies from the BiOp claims against FWS. The
Fish and Wildlife
Claims with
plaintiff had argued the other agencies were also responsible
Service, 1:09-cv-480,
Other Delta
for harm to the smelt. The claims related to the FWS 2008
2009 WL 3857417 (E.D.
Smelt Cases
BiOp were consolidated with the other delta smelt cases.
Cal. 2009)
Consol. Salmonid
1/27/10
Motion for TRO Motions filed by San Luis & Delta-Mendota Water Authority
Cases, 1:09-cv-1053
Filed/ Motion
and Westlands Water District to halt implementation of 2009
(E.D. Cal. 2010)
for Preliminary
NMFS BiOp RPA Action IV.2.3.
Injunction
Delta Smelt
1/27/10
Motion for TRO Motion filed by San Luis & Delta-Mendota Water Authority and
Consolidated Cases,
Westlands Water District to halt implementation of 2008 FWS
1:09-cv-407 (E.D. Cal.
BiOp RPA Component 1.
2010)
Consol. Salmonid
2/5/10 Granting
TRO
The court granted a TRO to 2009 NMFS BiOp RPA Action
Cases, 1:09-cv-1053,
for NMFS BiOp
IV.2.3 regarding storing water from storms. The court found
2010 WL 500455 (E.D.
RPA IV.2.3
that the plaintiffs had not shown a likelihood of success on the
Cal. Feb. 5, 2010)
ESA claims, but the NEPA violation had been established.
Congressional Research Service
3

Biological Opinions for the Sacramento-San Joaquin Delta: A Case Law Summary

Document
Case Name
Date
Title Summary
Delta Smelt
2/5/10 Denying
TRO
The court denied the TRO for the 2008 FWS BiOp. No smelt
Consolidated Cases,
for FWS BiOp
were spotted in the area of the pumps; therefore, the federal
1:09-cv-407 (E.D. Cal.
government was not implementing the RPA that was being
2010)
challenged.
Delta Smelt
2/12/10 Denying
Second
The court refused to grant a TRO that would have prevented
Consolidated Cases,
Motion for TRO the water flow reductions described in 2008 FWS BiOp
693 F. Supp. 2d 1145
for FWS BiOp
Component 1, Action 2. The court held that it could not issue
(E.D. Cal. 2010)
Component 1
a TRO based solely on NEPA if it would lead to a violation of
the ESA. The court noted FWS argument that stopping the
RPA could jeopardize delta smelt.
Consol. Salmonid
2/22/10
Motion for TRO Motion filed by San Luis & Delta Mendota Water Authority and
Cases, 1:09-cv-1053
Westlands Water District to halt implementation of RPA
(E.D. Cal. 2010)
Action IV.2.1.
Consol. Salmonid
3/5/10 Requiring The court held that the Bureau failed to comply with NEPA in
Cases, 688 F. Supp. 2d
Bureau to
implementing RPAs from the 2009 NMFS BiOp.
1013 (E.D. Cal. 2010)
Comply with
NEPA for NMFS
BiOp RPAs
(Order issued
3/18/10)
Consol. Salmonid
5/18/10 Granting
The court granted a preliminary injunction halting
Cases, 713 F. Supp. 2d
Preliminary
implementation of RPA IV.2.1 (through May 31) and IV.2.3
1116 (E.D. Cal. 2010)
Injunction
(through June 15) of 2009 NMFS BiOp. The court held that the
Against
balance of equities weighed in favor of the injunction—effects
Implementation
of loss of water supply would be more severe than effects of
of 2009 NMFS
reduced water for salmon and steelhead. The court questioned
BiOp RPA IV.2.1 NMFS’s conclusion that exports hurt salmon survival without
and IV.2.3
examining other negative impacts on salmon. Supplemental
(Order Issued
Findings of Fact were issued 6/1/2010.
5/27/10)
Delta Smelt
5/27/10 Preliminary The court granted a preliminary injunction of 2008 FWS BiOp
Consolidated Cases,
Injunction
RPA Component 2, having to do with water flow from the time
717 F. Supp. 2d 1021
Against
delta smelt have spawned until June 20 of each year. The court
(E.D. Cal. 2010)
Implementation
found that FWS did not use best available science to support
of 2008 FWS
water flow levels, particularly regarding use of gross salvage
BiOp
numbers, and that FWS violated NEPA.
Delta Smelt
6/22/10 Operational All parties stipulated to joint operational plan for term of
Consolidated Cases,
Plan
preliminary injunction.
1:09-cv-407 (E.D. Cal.
2011)
Delta Smelt
12/14/10 Decision
The court remanded the 2008 FWS BiOp for violating the ESA
Consolidated Cases,
Remanding 2008 in part by relying on data that were not the best available
760 F. Supp. 2d 855
FWS BiOp
science. The court found that the conclusion—that pump
(E.D. Cal. 2010)
(Order Issued
entrainment will adversely affect the smelt—was justified, but
12/23/2010)
the flow prescriptions were flawed. The court also held that
FWS failed to consider whether RPAs were economically and
technically feasible, interpreting those terms as applying to
downstream water users. FWS did not violate NEPA when
issuing BiOp.
NRDC v. Salazar, 1:05-
2/2/11 Stipulation Department of the Interior will pay $1,906,500 to NRDC in full
cv-1207 (E.D. Cal.
Settling
settlement of attorneys’ fees and costs for challenges of 2004
2011)
Attorneys Fees
and 2005 BiOps.
Congressional Research Service
4

Biological Opinions for the Sacramento-San Joaquin Delta: A Case Law Summary

Document
Case Name
Date
Title Summary
Consol. Salmonid
2/3/11 Motion
for Motion filed by Coalition for a Sustainable Delta and Kern
Cases, 1:09-cv-1053
Preliminary
County Water Agency to halt implementation of certain RPAs.
(E.D. Cal. 2011)
Injunction
Delta Smelt
2/24/11 Proposed
The parties agreed that while Components 2 and 3 of the 2008
Consolidated Cases,
Interim Remedy
FWS BiOp were in effect, water flow would have a 14-day
1:09-cv-407 (E.D. Cal.
Through
average flow between -1,250 and -6,100 cfs.
2011)
6/30/2011
San Luis & Delta-
3/25/11 Upholding
ESA
The Ninth Circuit upheld lower court that application of the
Mendota Water
Constitutionality ESA to delta smelt (an intrastate fish with no commercial value)
Authority v. Salazar, 638
is nonetheless constitutional. Based on Supreme Court
F.3d 1163 (9th Cir.
precedent, the Ninth Circuit found that the ESA is
2011)
“substantially related" to interstate commerce. Upholds
decision of 663 F. Supp. 2d 922 (E.D. Cal. 2009).
Consol. Salmonid
3/28/11 Notification
of
Federal defendants notified the court that RPA Action IV.2.1
Cases, 1:09-cv-1053
Court
will not be implemented this year.
(E.D. Cal. 2011)
Delta Smelt
3/29/11 Judgment
ending
Final decision summarizing earlier orders: Reclamation violated
Consolidated Cases,
Delta Smelt
NEPA and ESA; FWS did not violate NEPA; BiOp violated ESA;
1:09-cv-407 (E.D. Cal.
Consolidated
RPA is remanded with new BiOp to be completed by
2011)
Cases
10/1/2011; and Interim remedy ordered on 2/24/2011 remains
in place through 6/30/2011.
Consol. Salmonid
3/30/11
Order
Parties agreed that pending motions for TRO and a preliminary
Cases, 1:09-cv-1053
injunction were moot in light of federal defendants’
(E.D. Cal. 2011)
announcement of 3/28/2011. Motions withdrawn.
Delta Smelt
4/7/11 Notice
of NRDC and The Bay Institute (defendant-intervenors) filed an
Consolidated Cases,
Appeal Filed
appeal with the Ninth Circuit.
1:09-cv-407 (E.D. Cal.
2011)
Delta Smelt
5/4/11 Amended In response to motion by federal defendants, Court modified
Consolidated Cases,
Judgment
12/14/10 judgment to require completion of FWS BiOp by
1:09-cv-407 (E.D. Cal.
12/1/13, instead of 10/1/11.
2011)
Delta Smelt
6/8/11 Motion
for Water users challenged 2008 FWS BiOp RPA Fall X2, which
Consolidated Cases,
Preliminary
would take place in September 2011, arguing that science did
1:09-cv-407 (E.D. Cal.
Injunction Filed
not show that those water flow reductions would increase
2011)
delta smelt abundance.
San Luis & Delta
6/10/11 Motions
for Motion for TRO and preliminary injunction filed to halt
Mendota Water
TRO and
Bureau’s reduction of water flow to aid fall-run Chinook
Authority v. U.S.
Preliminary
salmon, which is not an ESA-listed species. Suit alleged violation
Department of the
Injunction
of CVPIA §3411(b).
Interior, 1:11-cv-952
(E.D. Cal. 2011)
San Luis & Delta
6/15/11
Order
The court ruled from the bench, denying plaintiffs’ motions for
Mendota Water
TRO and preliminary injunction to increase water flow at delta
Authority v. U.S.
pumps.
Department of the
Interior, 1:11-cv-952
(E.D. Cal. 2011)
Congressional Research Service
5

Biological Opinions for the Sacramento-San Joaquin Delta: A Case Law Summary

Document
Case Name
Date
Title Summary
Stewart & Jasper
6/22/11
Petition for a
Water users wanted the U.S. Supreme Court to review a
Orchards v. Salazar, No.
Writ of
March 2011 Ninth Circuit decision, which held that applying
10-1551 (S. Ct. 2011)
Certiorari Filed
the ESA to delta smelt is constitutional (638 F.3d 1163 (9th Cir.
2011)).
Delta Smelt
6/24/11 Jurisdiction
to Court found that it had jurisdiction to review 6/8/11 Motion
Consolidated Cases,
Hear Motion for for Preliminary Injunction, rejecting federal defendants’
1:09-cv-407 (E.D. Cal.
Preliminary
argument that court’s 12/14/10 decision (now on appeal)
2011)
Injunction
prevented review.
Delta Smelt
6/30/11 Notice
of
State Water Contractors filed an appeal of 12/14/10 decision
Consolidated Cases,
Appeal Filed
with the Ninth Circuit.
1:09-cv-407 (E.D. Cal.
2011)
Delta Smelt
7/1/11 Notice
of Federal defendants filed appeal of 12/14/10 decision with the
Consolidated Cases,
Appeal Filed
Ninth Circuit.
1:09-cv-407 (E.D. Cal.
2011)
Delta Smelt
9/2/11 Preliminary Court halted implementation of 2008 FWS BiOp RPA Fal X2,
Consolidated Cases,
Injunction
which pertains to flow levels. The timing and measurement of
1:09-cv-407 (E.D. Cal.
that action were allowed to continue.
2011)
San Luis & Delta
9/6/11 Written
Court denied motion for preliminary injunction to restore flow
Mendota Water
Decision of 6/15 at a pump station. Motion was based on CVPIA §3411.
Authority v. U.S.
Denial of
Department of the
Preliminary
Interior, 1:11-cv-952,
Injunction
2011 U.S. Dist. LEXIS
99956 (E.D. Cal. 2011)
Delta Smelt
9/6/11 Notice
of NRDC and The Bay Institute (defendant-intervenors) filed an
Consolidated Cases,
Appeal
appeal with the Ninth Circuit of the 9/2/11 decision halting
1:09-cv-407 (E.D. Cal.
Filed/Motion for
implementation of 2008 FWS BiOp RPA. A motion to stay that
2011) (Ninth Cir. Doc.
Stay Filed
decision was also filed.
No. 11-17143)
Delta Smelt
9/13/11 Amended
Court amended the Preliminary Injunction of 9/2/11 to prohibit
Consolidated Cases,
Order
implementation of 2008 FWS BiOp RPA 74km X2 Target
1:09-cv-407 (E.D. Cal.
during 2011, or setting the X2 Target downstream or west of
2011)
79 km in 2011.
Consol. Salmonid
9/20/11 Memorandum Court held that jeopardy conclusion of 2009 NMFS BiOp was
Cases, 791 F. Supp. 2d
Decision on
correct, but that RPAs were not adequately justified or
802 (E.D. Cal. 2011)
Summary
supported by the record. BiOp was remanded.
Judgment
Delta Smelt
9/26/11 Second
Court stayed Amended Order of 9/13/11 to al ow Fall X2
Consolidated Cases,
Amended
water flow through 10/15/11 but prohibited implementation of
1:09-cv-407 (E.D. Cal.
Order/Partial
74 km X2 Target from 10/16/11 through 11/30/11, and
2011
Stay
prohibited setting the X2 Target downstream or west of 79 km
from 10/16/11 through 12/31/11.
Consol. Salmonid
9/29/11
Order
Court directed the remand of the 2009 NMFS BiOp (as
Cases, 1:09-cv-1053
discussed in the Memorandum Decision of 9/20/11). The BiOp
(E.D. Cal. 2011)
was not vacated.
Stewart & Jasper
10/31/11
Petition for writ
Supreme Court refused to review issue of whether ESA
Orchards v. Salazar, No.
of certiorari
application to delta smelt was constitutional.
10-1551 (S. Ct. 2011)
denied
Congressional Research Service
6

Biological Opinions for the Sacramento-San Joaquin Delta: A Case Law Summary

Document
Case Name
Date
Title Summary
Consol. Salmonid
12/12/11
Final Judgment
Court ordered NMFS to transmit a draft salmon BiOp by
Cases, 1:09-cv-1053
10/1/14, and a final BiOp by 2/1/16; and the Bureau to issue a
(E.D. Cal. 2011)
final EIS by 2/1/16, and a record of decision by 4/29/16.
Consol. Salmonid
1/19/12 Notice
of
Environmental groups appealed the judgment of 12/12/11.
Cases, 1:09-cv-1053
Appeal
Delta Smelt
8/23/12
Order
Court dismissed appeal by NRDC and the Bay Institute
Consolidated Cases
challenging the Fall X2 injunction. Court ruled appeal was
(a.k.a. San Luis & Delta-
moot.
Mendota Water
Authority v. Salazar),
No. 11-17143 (9th Cir.)
Delta Smelt
9/10/12 Oral
Argument

Consolidated Cases,
No. 11-17143 (9th Cir.)
Delta Smelt
4/9/13
Order
Federal defendants and CDWR moved for extension to
Consolidated Cases,
participate in an adaptive management process, Court modified
1:09-cv-407 (E.D. Cal.
its original judgments (filed FWS-12/14/10; NMFS-12/12/11).
2013)
The court extended the deadlines by one year (FWS—12/1/14;
NMFS—2/1/17). The court required a status report from al
Consol. Salmonid
parties by 2/15/14. If substantial progress has been made, the
Cases, 1:09-cv-1053
court will extend the deadline another year (FWS—12/1/15;
(E.D. Cal. 2013)
NMFS—2/1/18), and if substantial progress is shown again, the
deadlines will be extended one more year (FWS—12/1/16;
NMFS—2/1/19).
Consolidated Salmonid
9/14/14 Scheduled
date
Original date for oral argument of 2/10/14 was moved in
Cases (a.k.a. San Luis &
for Oral
anticipation of a decision in the Delta Smelt Consolidated
Delta-Mendota Water
Argument
Cases appeal.
Authority v. Pacific
Coast Federation of
Fishermen’s
Associations), No. 12-
15144
Delta Smelt
3/5/14
Order
Court extended the deadline for production of BiOps another
Consolidated Cases,
year (FWS—12/1/15; NMFS—2/1/18).
1:09-cv-407 (E.D. Cal.
2013)
Consol. Salmonid
Cases, 1:09-cv-1053
(E.D. Cal. 2013)
Delta Smelt
3/13/2014
Opinion
Ninth Circuit reversed district court’s remand of FWS BiOp,
Consolidated Cases,
upholding the scientific basis of the BiOp. Affirmed the decision
747 F.3d 581 (9th Cir.)
that the Bureau must complete an EIS for implementing the
BiOp.
Consol. Salmonid
12/22/2014 Opinion
Ninth Circuit reversed district court’s remand of NMFS BiOp,
Cases, 12-15444
upholding the scientific basis of the BiOp.
(9th Cir.)
Delta Smelt
1/12/2015 Certiorari
Supreme Court refused to review the Ninth Circuit’s decision,
Consolidated Cases,
denied
denying the petitions for review in Stewart & Jasper Orchards v.
747 F.3d 581 (9th Cir.)
Jewell, No. 14-377, and State Water Contractors v. Jewell, No. 14-
402.
Congressional Research Service
7

Biological Opinions for the Sacramento-San Joaquin Delta: A Case Law Summary

Appendix A. List of Acronyms and Abbreviations
Used in Table

BiOp
Biological Opinion (see 16 U.S.C. §1536(b))
Bureau
U.S. Bureau of Reclamation of the Department of the Interior
CDWR
California Department of Water Resources
cfs
cubic feet per second
CVP
Central Valley Project
CVPIA
Central Valley Project Improvement Act (P.L. 102-575, Title 34)
DOI
Department of the Interior
E.D. Cal.
Federal District Court for the Eastern District of California
EIS
Environmental Impact Statement
ESA
Endangered Species Act (16 U.S.C. §§1531-1544)
FWS
U.S. Fish and Wildlife Service of the Department of the Interior
NEPA
National Environmental Policy Act (42 U.S.C. §§4321-4332)
NMFS
National Marine Fisheries Service of the Department of Commerce
NRDC
Natural Resources Defense Council
OCAP
Operations Criteria and Plan
RPA
Reasonable and Prudent Alternatives (see 16 U.S.C. §1536(b)(3)(A))
S. Ct.
U.S. Supreme Court
SWP
State Water Project
TRO
Temporary Restraining Order
X2
Geographical location where the isohaline levels of a river are at 2 parts per
thousand. Setting X2 Targets requires changing freshwater flow levels in order
to push that concentration level farther out to the estuaries.
9th Cir.
U.S. Federal Court of Appeals for the Ninth Circuit (which includes the Eastern
District of California)

Congressional Research Service
8

Biological Opinions for the Sacramento-San Joaquin Delta: A Case Law Summary

Appendix B. Brief Description of Cases in Table

Party(ies)
Case No. and Court
Basis of Claim(s)
NRDC v. Kempthorne (original y
1:05-cv-1207 (E.D. Cal)
Adequacy of FWS 2004 and 2005
NRDC v. Norton)
Delta Smelt BiOps (which found fish
were not jeopardized by CVP/SWP
operations).
Pacific Coast Federation of
1:06-cv-245 (E.D. Cal.)
Adequacy of NMFS 2005 Salmonid
Fishermen’s Associations v.
BiOp (which found fish were not
Gutierrez
jeopardized by CVP/SWP operations).
Delta Smelt Consolidated Cases
1:09-cv-407 (E.D. Cal.)
Adequacy of 2008 FWS Delta Smelt
(a.k.a. San Luis & Delta-Mendota
BiOp (which found fish were
Water Authority v. Salazar)
jeopardized by CVP/SWP operations).
Coalition for a Sustainable Delta v. 1:09-cv-480 (E.D. Cal.)
Adequacy of 2008 FWS Delta Smelt
U.S. Fish and Wildlife Service
BiOp (which found fish were
jeopardized by CVP/SWP operations).
Consolidated Salmonid Cases
1:09-cv-1053 (E.D. Cal.)
Adequacy of 2009 NMFS Salmonid
(a.k.a. San Luis & Delta-Mendota
BiOp (which found fish were
Water Authority v. Locke)
jeopardized by CVP/SWP operations).
San Luis & Delta-Mendota Water
1:11-cv-952 (E.D. Cal.)
Lawfulness of water flow reduction to
Authority v. U.S. Department of
aid fall-run Chinook, which is not a
the Interior
listed species. Not part of BiOp
challenges.
Stewart & Jasper Orchards v.
No. 10-1551 (S. Ct.)
Constitutionality of ESA consultation
Salazar (part of Delta Smelt
requirement as applied to delta smelt.
Consolidated Cases)
Delta Smelt Consolidated Cases
No. 11-17143 (9th Cir.)
Fall X2 injunction.
(a.k.a. San Luis & Delta-Mendota
Water Authority v. Salazar)
Consolidated Salmonid Cases
No. 12-15144 (9th Cir.)
Adequacy of 2009 NMFS Salmonid
(a.k.a. San Luis & Delta-Mendota
BiOp.
Water Authority v. Pacific Coast
Federation of Fishermen’s
Associations)
Source: Congressional Research Service.

Author Contact Information

Kristina Alexander

Legislative Attorney
kalexander@crs.loc.gov, 7-8597

Congressional Research Service
9