MEMORANDUM DECISION RE CROSS MOTIONS FOR SUMMARY JUDGMENT (DOCS. 548, 549, 550, 658, & 661)
OLIVER W. WANGER, District Judge.
TABLE OF CONTENTS I. INTRODUCTION ................................................................. 863 II. PROCEDURAL HISTORY ........................................................... 863 III. STATUS OF THE SPECIES ........................................................ 866 IV. SUMMARY OF MOTION ............................................................ 867 A. Plaintiffs'Motion ......................................................... 867 B. DWR's Motion .............................................................. 867 V. STANDARD OF DECISION ......................................................... 868 VI. BASIC LEGAL FRAMEWORK ........................................................ 868 A. Review under the APA ...................................................... 868 (1) Record Review ......................................................... 868 (2) Deference to Agency Expertise ......................................... 869 (3) General Obligations Under the ESA ..................................... 870 (4) Best Available Science ................................................ 870 (5) Best Available Science Standards and the Application of Analytical/Statistical Methodologies ................................ 873 VII. ANALYSIS ..................................................................... 874 A. Challenges to the Effects Analysis & Related Challenges to the RPA Actions ............................................................... 874 (1) Legal Requirements for a Project Effects Analysis ..................... 874 (2) Best Available Science Challenges to the Effects Analysis and Related Challenges to the Justification Provided for the RPA Actions ............................................................. 875 a. The BiOp's General Conclusion that Entrainment by Project Operations Adversely Affects Smelt Survival & Recovery is Supported by the Record .......................................... 876 b. Population Level Analysis/Life-Cycle Modeling ...................... 881 c. FWS' Use of Raw Salvage Numbers .................................... 885 (1) Federal Defendants' Argument that the Flow Prescriptions in Actions 1 and 2 are Otherwise Justified ................... 890 (2) Use of Raw Salvage Analyses in Justification for Action 3 ...... 895 d. FWS's Comparison of CALSIM II Data to DAYFLOW Data ................. 896 (1) Was FWS's Decision to Compare Calsim II to Dayflow Model Runs a Violation of the Best Available Science Requirement? ................................................. 903 (2) Does the Use of Dayflow to Represent the Baseline in the Project Effects Analysis Improperly Attribute Past Effects to the Projects? ..................................... 909 (3) Use of Comparisons Between CALSIM and DAYFLOW Model Outputs to Justify Imposition of Component 3 (Action 4), the Fall X2 Action ............................... 910 (3) Other Challenges to the Fall X2 Action ................................ 913 a. Plaintiffs' Argument that Action 4 is an "Untested Hypothesis." .... 913 b. FWS' Reliance on the Feyrer Papers ................................. 913 c. Do the Studies Cited in the BiOp Support FWS's Conclusion that Fall X2 Determines the Extent of Suitable Smelt Habitat? ......................................................... 915 (1) Feyrer (2007) .................................................. 915 (2) The Feyrer (2008) Paper ........................................ 917 (3) The Bennett (2005) Article ..................................... 918 d. Does the Best Available Science Support the Assumption that X2 Is a Surrogate for Smelt Habitat? ............................. 918 a. Are Delta Smelt Habitat Limited? ................................... 919
b. FWS' Use of a Linear Model Instead of a Multiplicative Stock-Recruit Model .............................................. 920 c. DWR's Challenge to the BiOp's Choice of X2 Location ................ 922 (4) Challenges to Turbidity Trigger ....................................... 923 (5) Challenges to the Incidental Take Limit/Selective Use of Data ......... 924 a. FWS's Exclusion of Certain Data Points When Analyzing Entrainment ...................................................... 924 b. FWS's Use of Data to Examine the Relationship Between OMR Flows and Salvage and Exclusion of that Data from the Incidental Take Limit Analysis ................................... 925 c. DWR's Additional Challenges the ITS ................................ 928 (6) Challenges to the BiOp's Analysis of the Hydrodynamic Effects of the Projects ............................................. 929 a. Project Operations as a Driver of Hydrodynamic Conditions in the Delta ...................................................... 930 b. Treatment of Other Stressors ....................................... 932 (1) Predation Analysis ............................................. 934 (2) Aquatic Macrophytes ............................................ 934 (3) Microcystis .................................................... 936 (7) Indirect Effects Analysis ............................................. 936 a. Effect of Project Operations on Delta Smelt Food Supplies .......... 937 b. Pollution and Contaminants ......................................... 940 (8) Critical Habitat as Independent Basis for RPA ......................... 943 a. Identification of a Threshold For Adverse Modification/ Explanation of How Any Alleged Alteration To Critical Habitat Would Exceed that Threshold .............................. 944 b. Reliance On Assumptions Of Indirect Effects Without Providing Evidence That These Indirect Effects Are Reasonably Certain To Occur ................................................. 946 c. Reliance on Analysis Of Entrainment and X2 in Support of the Adverse Modification Determination ............................... 947 (9) Discretionary v. Nondiscretionary Actions ............................. 947 B. Application of the RPA Regulations ........................................ 948 (1) FWS Did Not Explicitly Analyze Any of the Four Factors in the BiOp ................................................................ 948 (2) Compliance with § 402.02 ......................................... 949 a. Jeopardy Factor (Fourth Factor) .................................... 949 b. Non-Jeopardy Factors (Factors One Through Three) ................... 949 c. There is no Procedural Requirement that FWS Accept, Consider, and/or Address Comments Regarding the BiOp or its RPA ............ 957 C. Stewart & Jasper Orchards' Argument Re: Reasonable and Prudent Measures ................................................................ 957 D. Stewart & Jasper, et al.'s, Argument that FWS Illegally Arrogated Authority to Itself Over Bureau of Reclamation and California Department of Water Resources Operations ................................ 958 E. Information Quality Act Claim ............................................. 959 (1) Legal Framework of the IQA ............................................ 959 (2) Right to Judicial Review Under the APA ................................ 960 a. APA § 701(a)(2)'s Exception for Agency Action "Committed to Agency Discretion by Law" Bars Judicial Review in this Case .............................................. 961 (3) To the Extent FFA Bases Any of its Claims against Reclamation on the ESA, Such Claims are Subject to the ESA's Pre-Filing Requirements ........................................................ 964 F. Renewed Claim That FWS Violated NEPA ...................................... 964 G. Reclamation's Liability under the ESA ..................................... 966 VIII. CONCLUSION ................................................................... 967
II. PROCEDURAL HISTORY
FWS's 2005 biological opinion ("2005 Smelt BiOp") found that the proposed coordinated operations of the SWP and CVP will have no adverse effect on the continued existence and recovery of the Delta Smelt and its critical habitat. The 2005 BiOp was remanded to FWS as arbitrary and capricious. Order, NRDC v. Kempthorne, 506 F.Supp.2d 322 (E.D.Cal. 2007), Doc. 323. Following an extensive evidentiary hearing, the Court issued an interim remedial order and Findings of Fact and Conclusions of Law ("Findings"), which covered, among other things, the effects on delta smelt of negative flows in Old and Middle Rivers ("OMR"), two distributary channels of the San Joaquin River. See Interim Remedial Order Following Summary Judgment and Evidentiary Hearing ("Int. Rem. Order"), NRDC v. Kempthorne, Doc. 560, 2007 WL 4462391 (Dec. 14, 2007); Findings re: Delta Smelt ESA Remand and Reconsultation ("Int. Rem. Findings"), NRDC v. Kempthorne, Doc. 561, 2007 WL 4462395 (Dec. 14, 2007).
Reclamation and DWR were ordered, among other things, to implement a winter "pulse flow" in OMR of no more negative than -2,000 cubic feet per second ("cfs"), and to "operate the CVP and SWP to achieve a daily average net upstream (reverse) flow in the OMR not to exceed 5,000 cfs on a seven-day running average" during a defined period in the spring. Int.
FWS issued a new delta smelt biological opinion on December 15, 2008 ("2008 Smelt BiOp" or "BiOp"). See Administrative Record ("AR") at 00001-00411.
Component 1, to protect of the adult delta smelt life stage, consists of two Actions related to OMR flows.
Component 2 (Action 3), to protect larval and juvenile delta smelt, requires OMR flows to be kept between -1,250 and -5,000 cfs, after Component 1 is completed, when Delta water temperatures reach 12° Celcius ("C"), or when a spent female smelt is detected in trawls or at salvage
Component 3 (Action 4), to improve habitat for delta smelt growth and rearing, requires sufficient Delta outflow to maintain average mixing point locations of Delta outflow and estuarine water inflow ("X2"
Component 5 (Monitoring and Reporting), requires Reclamation and DWR to gather and report information to ensure proper implementation of the RPA actions, achievement of physical results, and evaluation of the effectiveness of the actions on the targeted life stages of delta smelt, so that the actions can be refined, if needed. Id. at 284-85, 328, 375.
The first of the six consolidated challenges to the BiOp was filed on March 3, 2009. Doc. 1. Plaintiffs moved for a preliminary injunction on April 24, 2009 to prevent Reclamation from implementing Component 2 of the RPA, alleging that FWS violated the National Environmental Policy Act ("NEPA") and the ESA. See Doc. 31.
On May 22, 2009, the Court granted that motion in part, finding that Plaintiffs were likely to succeed on the merits of their NEPA claim and requiring FWS to make specific written findings to justify OMR flow restrictions. See Doc. 84; see also Doc. 94, Findings re Mot. for Prelim. Inj. (May 29, 2009). Defendants complied with that Order, submitting weekly notices of FWS's OMR flow decisions. See, e.g., Doc. 111, Notice of OMR Flow Decision (June 11, 2009). The Court's May 2009 preliminary injunction ruling was not based on Plaintiffs' ESA claims. Doc. 94 at 43.
Plaintiffs amended their Complaint, joined and added claims against Reclamation, see Doc. 292, and moved for summary judgment on their NEPA claim, see Doc. 245. A November 13, 2009, 686 F.Supp.2d 1026 (E.D.Cal.2009) ruling granted summary adjudication in part, based on Reclamation's failure to prepare an environmental impact statement before provisionally accepting and implementing the BiOp and its RPA Actions. Doc. 399.
Summary judgment for Defendants was granted on: (1) Stewart and Jasper Orchards' Commerce Clause claim that the ESA did not apply to protect delta smelt, a purely intra-state species, Doc. 339; and (2) claims that the BiOp violated regulations governing formulation of the RPA by not including required information in the BiOp text, Doc. 354.
Plaintiffs then filed three temporary restraining order motions over a six week period—all of which were denied. See Docs. 555 & 583; see also 3/16/10 Hrg. Tr. at 86-88. Plaintiffs next sought a preliminary injunction against implementation of RPA Component 3. An evidentiary hearing was held from April 2, 2010 through April 7, 2010. Docs. 644, 652-54. Findings Re Plaintiffs' Request for Preliminary Injunction issued May 27, 2010 ("PI Decision"), 717 F.Supp.2d 1021 (E.D.Cal.2010). Doc. 704. The PI Decision confirmed Plaintiffs had succeeded on their NEPA claim and found Plaintiffs were likely to succeed on the merits of their ESA claim:
A May 28, 2010 status conference sought to determine whether a mutually-agreeable interim operational plan could be implemented. Doc. 706. On June 22, 2010, the parties stipulated to a joint operational plan to maintain OMR flows so as not to be more negative than -5,000 cfs, unless certain, defined salvage triggers required a further reduction in OMR flows. Doc. 724.
After these dispositive motions were filed, the National Academy of Sciences, completed a comprehensive review of the BiOp, and concluded that the BiOp and the RPA Actions were "scientifically justified." See National Academy of Sciences, National Research Council, A Scientific Assessment of Alternatives for Reducing Water Management Effects on Threatened and Endangered Fishes in California's Bay Delta at 3. Doc. 635. This post-decisional document is not part of the Administrative Record ("AR") and no legal justification exists to supplement the AR to include it.
Additionally, a scientific peer review panel was convened by the private consulting firm, Post Buckley Shuh and Jernigan ("PBS & J"), at the request of Plaintiff Family Farm Alliance ("FFA") in connection with FFA's administrative petition under the Information Quality Act ("IQA"). See Family Farm Alliance v. Salazar, 09-cv-1201 OWW-DLB (E.D.Cal.), Doc. 27, Ex. A. This document is part of the administrative record in the Family Farm Alliance IQA case, not the smelt AR. There is no basis to consider this document for non-IQA claims.
III. STATUS OF THE SPECIES
The delta smelt was listed as a threatened species under the ESA on March 5, 1993. 58 Fed. Reg. 12,854 (March 5, 1993). Critical habitat was designated for the delta smelt on December 19, 1994. 59 Fed.Reg. 65,256 (Dec. 19, 1994). Once an abundant species in the Bay-Delta ecosystem as recently as thirty years ago, the delta smelt is now in imminent danger of extinction. PI Decision, Finding of Fact ¶ 10. All the evidence shows a significant decline in smelt abundance since 2000, recently up to three orders of magnitude below historic lows. Id. The latest fall mid-water trawl ("FMWT") abundance index for the species was 17, the lowest level ever recorded. Id.
On April 7, 2010, FWS announced that reclassifying the delta smelt from a threatened to an endangered species was warranted, but precluded by higher priority listing actions. 75 Fed.Reg. 17,667 (Apr. 7, 2010). The direct mortality of delta smelt by entrainment at the CVP-SWP pumps, as well as the destruction and adverse modification of its habitat in the Delta caused by water exports, were important factors in this determination. Id. at 17,669, 17,671 ("The operation of State and Federal export facilities constitute a
IV. SUMMARY OF MOTION
A. Plaintiffs' Motion.
Plaintiffs' motion advances the following grounds and contentions:
B. DWR's Motion.
DWR's attacks three aspects of the BiOp:
V. STANDARD OF DECISION
Summary judgment is appropriate when the pleadings and the record demonstrate that "there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The claims in this case involve FWS's issuance of a biological opinion, which is a final agency action subject to judicial review under the APA, 5 U.S.C. § 702. Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d 917, 925 (9th Cir.2008) ("NWF v. NMFS II"). A court conducting judicial review under the APA may not resolve factual questions, but instead determines "whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Sierra Club v. Mainella, 459 F.Supp.2d 76, 90 (D.D.C.2006) (quoting Occidental Eng'g Co. v. INS, 753 F.2d 766, 769 (9th Cir.1985)). "[I]n a case involving review of a final agency action under the [APA] ... the standard set forth in Rule 56(c) does not apply because of the limited role of a court in reviewing the administrative record." Id. at 89. In this context, summary judgment becomes the "mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review." Id. at 90.
VI. BASIC LEGAL FRAMEWORK
A. Review under the APA.
Administrative Procedure Act ("APA") invalidation of a biological opinion requires Plaintiffs to prove that FWS's action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).
(1) Record Review.
APA review of a biological opinion is "based upon the evidence contained in the administrative record." Arizona Cattle Growers' Ass'n v. FWS, 273 F.3d 1229,
Here, as evidentiary rulings explained, see, e.g., Docs. 387, 392 (10/19/09 Hrg. Tr.), 406, 407, 462, 740 (7/8/10 Hrg.), 750, expert testimony has been considered only for explanation of technical terms and complex scientific subject matter beyond the Court's knowledge; and to understand the agency's explanations, or lack thereof, and the parties' arguments.
(2) Deference to Agency Expertise.
A Court must defer to the agency on matters within the agency's expertise, unless the agency completely failed to address some factor, consideration of which was essential to making an informed decision. Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 422 F.3d 782, 798 (9th Cir.2005) ("NWF v. NMFS I"). A court "may not substitute its judgment for that of the agency concerning the wisdom or prudence of the agency's action." River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir.2010):
Although deferential, judicial review under the APA is designed to "ensure that the agency considered all of the relevant factors and that its decision contained no clear error of judgment." Arizona v. Thomas, 824 F.2d 745, 748 (9th Cir.1987) (internal citations omitted). "The deference accorded an agency's scientific or technical expertise is not unlimited." Brower v. Evans, 257 F.3d 1058, 1067 (9th Cir.2001) (internal citations omitted).
Motor Vehicle Mfrs. Ass'n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983); see also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (reviewing court may overturn an agency's action as arbitrary and capricious if the agency failed to consider relevant factors, failed to base its decision on those factors, and/or made a "clear error of judgment"), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977).
More generally, "[u]nder the APA `the agency must examine the relevant data and articulate a satisfactory explanation
(3) General Obligations Under the ESA.
ESA Section 7(a)(2) prohibits agency action that is "likely to jeopardize the continued existence" of any endangered or threatened species or "result in the destruction or adverse modification" of its critical habitat. 16 U.S.C. § 1536(a)(2).
To "jeopardize the continued existence of" means "to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species." 50 C.F.R. § 402.02; see also NWF v. NMFS II, 524 F.3d 917 (rejecting agency interpretation of 50 C.F.R. § 402.02 that in effect limited jeopardy analysis to survival and did not realistically evaluate recovery, thereby avoiding an interpretation that reads the provision "and recovery" entirely out of the text). An action is "jeopardizing" if it keeps recovery "far out of reach," even if the species is able to cling to survival. NWF v. NMFS II, 524 F.3d at 931. "[A]n agency may not take action that will tip a species from a state of precarious survival into a state of likely extinction. Likewise, even where baseline conditions already jeopardize a species, an agency may not take action that deepens the jeopardy by causing additional harm." Id. at 930.
To satisfy this obligation, the federal agency undertaking the action (the "action agency") must prepare a "biological assessment" that evaluates the action's potential impacts on species and species' habitat. 16 U.S.C. § 1536(c); 50 C.F.R. § 402.12(a). If the proposed action "is likely to adversely affect" a threatened or endangered species or adversely modify its designated critical habitat, the action agency must engage in "formal consultation" with FWS to obtain its biological opinion as to the impacts of the proposed action on the listed species. See 16 U.S.C. § 1536(a)(2), (b)(3); see also 50 C.F.R. § 402.14(a), (g). Once the consultation process has been completed, FWS must give the action agency a written biological opinion "setting forth [FWS's] opinion, and a summary of the information on which the opinion is based, detailing how the agency action affects the species or its critical habitat." 16 U.S.C. § 1536(b)(3)(A); see also 50 C.F.R. § 402.14(h).
If FWS determines that jeopardy or destruction or adverse modification of critical habitat is likely, FWS "shall suggest those reasonable and prudent alternatives which [it] believes would not violate subsection (a)(2) of this section and can be taken by the Federal agency or applicant in implementing the agency action." 16 U.S.C. § 1536(b)(3)(A). "Following the issuance of a `jeopardy' opinion, the agency must either terminate the action, implement the proposed alternative, or seek an exemption from the Cabinet-level Endangered Species Committee pursuant to 16 U.S.C. § 1536(e)." Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 652, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007).
(4) Best Available Science.
Under the ESA, an agency's actions must be based on "the best scientific
"The obvious purpose of the [best available science requirement] is to ensure that the ESA not be implemented haphazardly, on the basis of speculation or surmise." Bennett v. Spear, 520 U.S. 154, 176, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997).
Id. at 176-77, 117 S.Ct. 1154.
A decision about jeopardy must be made based on the best science available at the time of the decision; the agency cannot wait for or promise future studies. See Ctr. for Biological Diversity v. Rumsfeld, 198 F.Supp.2d 1139, 1156 (D.Ariz.2002). The "best available science" mandate of the ESA sets a basic standard that "prohibits the [agency] from disregarding available scientific evidence that is in some way better than the evidence [it] relies on." Am. Wildlands v. Kempthorne, 530 F.3d 991, 998 (D.C.Cir. 2008) (citation omitted).
What constitutes the "best" available science implicates core agency judgment and expertise to which Congress requires the courts to defer; a court should be especially wary of overturning such a determination on review. Baltimore Gas & Elec. Co. v. Natural Res. Defense Council, 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (a court must be "at its most deferential" when an agency is "making predictions within its area of special expertise, at the frontiers of science"). As explained in the en banc decision in Lands Council, 537 F.3d at 993, courts may not "impose on the agency their own notion of which procedures are best or most likely to further some vague, undefined public good." In particular, an agency's "scientific methodology is owed substantial deference." Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1066 (9th Cir.2004).
"When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive." Lands Council, 537 F.3d at 1000 (quoting Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989)). Mere uncertainty, or the fact that evidence may be "weak," is not fatal to an agency decision. Greenpeace Action v. Franklin, 14 F.3d 1324, 1337 (9th Cir.1992) (upholding biological opinion, despite uncertainty about the effectiveness of management
The deference afforded under the best available science standard is not unlimited. For example, Tucson Herpetological Society v. Salazar, 566 F.3d 870, 879 (9th Cir.2009), held that an agency may not rely on "ambiguous studies as evidence" to support findings made under the ESA. Because the studies did not lead to the conclusion reached by FWS, the Ninth Circuit held that these studies provided inadequate support in the administrative record for the determination made by FWS. Id.; see also Rock Creek Alliance v. U.S. Fish & Wildlife Service, 390 F.Supp.2d 993, 1008 (D.Mont.2005) (rejecting FWS's reliance on a disputed scientific report, which explicitly stated its analysis was not applicable to the small populations addressed in the challenged opinion). Alternatively, the presumption of agency expertise may be rebutted if the agency's decisions, although based on scientific expertise, are not reasoned, Greenpeace v. NMFS, 80 F.Supp.2d 1137, 1147 (W.D.Wash.2000), or if the agency disregards available scientific evidence better than the evidence on which it relies, Kern County Farm Bureau, 450 F.3d at 1080.
Courts routinely perform substantive reviews of record evidence to evaluate the agency's treatment of best available science. The judicial review process is not one of blind acceptance. See, e.g., Kern County, 450 F.3d at 1078-79 (thoroughly reviewing three post-comment studies and FWS's treatment of those studies to determine whether they "provide[d] the sole, essential support for" or "merely supplemented" the data used to support a listing decision); Home Builders Ass'n of N. Cal. v. U.S. Fish and Wildlife Serv., 529 F.Supp.2d 1110, 1120 (N.D.Cal.2007) (examining substance of challenge to FWS's determination that certain data should be disregarded); Trout Unlimited v. Lohn, 645 F.Supp.2d 929 (D.Or.2007) (finding best available science standard had been violated after thorough examination of rationale for NMFS's decision to withdraw its proposal to list Oregon Coast Coho salmon); Oceana, Inc. v. Evans, 384 F.Supp.2d 203, 217-18 (D.D.C.2005) (carefully considering scientific underpinnings of challenge to FWS's use of a particular model, including post decision evidence presented by an expert to help the court understand the complex model, applying one of several record review exceptions articulated in Esch v. Yeutter, 876 F.2d 976, 991 (D.C.Cir.1989), which are similar to those articulated by the Ninth Circuit).
Courts are not required to defer to an agency conclusion that runs counter to that of other agencies or individuals with specialized expertise in a particular technical area. See, e.g., Am. Tunaboat Ass'n v. Baldrige, 738 F.2d 1013, 1016-17 (9th Cir.1984) (NMFS's decision under the
In Conner v. Burford, 848 F.2d 1441, 1453-54 (9th Cir.1988), the agency attempted to defend its biological opinions by arguing that there was a lack of sufficient information to perform additional analysis. In rejecting this defense, the Ninth Circuit held that "incomplete information... does not excuse the failure to comply with the statutory requirement of a comprehensive biological opinion using the best information available," and noted that FWS could have completed more analysis with the information that was available. Id. at 1454.
Id. (emphasis added).
(5) Best Available Science Standards and the Application of Analytical/Statistical Methodologies.
The above-described standards apply with equal force to the use and interpretation of statistical methodologies. As the D.C. Circuit in Appalachian Power Co. v. EPA, 135 F.3d 791 (D.C.Cir.1998), explained in reviewing a challenge to a decision of the Environmental Protection Agency ("EPA") under the "arbitrary and capricious" standard of review:
Id. at 802.
The model must fit the available data. See Nat'l Wildlife Fed'n v. EPA, 286 F.3d 554, 565 (D.C.Cir.2002) ("NWF v. EPA") (a court will only reject the choice of a model "when the model bears no rational relationship to the characteristics of the data to which it was applied"). For example, Oceana, 384 F.Supp.2d at 220, rejected a challenge to NMFS's use of a particular analytical model that used data drawn from existing literature, even though experts
A. Challenges to the Effects Analysis & Related Challenges to the RPA Actions.
(1) Legal Requirements for a Project Effects Analysis.
Under section 7(a)(2) of the ESA and the Joint Consultation Regulations, FWS must "[e]valuate the effects of the action and cumulative effects on the listed species or critical habitat." 50 C.F.R. § 402.14(g)(3). FWS must then "[f]ormulate its biological opinion as to whether the action, taken together with cumulative effects,
The environmental baseline includes:
Id. The baseline is described in FWS and NMFS's Joint Consultation Handbook
Consultation Handbook 4-22.
Once the baseline, the "direct and indirect effects" of the action, and the "effects
NWF v. NMFS II, 524 F.3d at 930 (emphasis in original).
To jeopardize means "to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species." 50 C.F.R. § 402.02. The Consultation Handbook further provides that to "appreciably diminish the value: [means] to considerably reduce the capability of designated [critical habitat]." Consultation Handbook at 4-36. A related case found:
PCFFA v. Gutierrez, 606 F.Supp.2d 1195, 1208 (E.D.Cal.2008) (citing 16 U.S.C. 1536(b)(4), 1539(1)(B)).
(2) Best Available Science Challenges to the Effects Analysis and Related Challenges to the Justification Provided for the RPA Actions.
Plaintiffs argue that the project effects analysis is predicated upon scientific errors that render the BiOp and its conclusion that project operations jeopardize the delta smelt arbitrary, capricious and an abuse of discretion:
Doc. 551 at 8.
Plaintiffs maintain that the best available science does not support FWS' "assumption" that "CVP/SWP operations affect delta smelt throughout the year either directly through entrainment or indirectly through influences on its food supply and habitat suitability." BiOp at 203. Plaintiffs maintain that the science demonstrates:
Doc. 551 at 11. Plaintiffs also maintain that there is no scientific support for the BiOp's assumption that the Projects control hydrodynamic conditions in the Delta, or for the BiOp's classification of non-Project causes of harm as "indirect effects" of Project Operations. Id.
a. The BiOp's General Conclusion that Entrainment by Project Operations Adversely Affects Smelt Survival & Recovery is Supported by the Record.
The magnitude of diversions at the CVP and SWP pumping facilities influences flows throughout the Delta, including in the Old and Middle Rivers ("OMR"). BiOp at 160. When the level of diversion at the pumps is high, Old and Middle Rivers may flow backwards (in the opposite direction than they would under natural hydrological conditions) and toward the CVP and SWP natural conditions (called "negative" flows). Id. Negative OMR flows draw delta smelt present in the central and south Delta toward the pumps, and high negative flows increase the risk that they will be entrained at the pumps. Id. at 163, 253 (Figure E-7).
Unlike larger fish species, entrainment is lethal for weak-swimming delta smelt. Id. at 145. Relying on estimates of proportional entrainment presented by Dr. Wim Kimmerer in a 2008 paper entitled "Losses of Sacramento River Chinook Salmon and Delta Smelt to Entrainment in Water Diversions in the Sacramento-San Joaquin Delta," published in the journal, San Francisco Estuary & Watershed Science ("Kimmerer (2008)"), the BiOp concludes that "[t]otal annual entrainment of the delta smelt population (adults and their progeny combined) ranged from approximately 10 percent to 60 percent per year from 2002-2006." Id. at 210. In years when low flows and high exports coincide with a spawning distribution of the delta smelt that includes the San Joaquin River, the loss of larval delta smelt due to entrainment can exceed 50% of the population. Id. at 164-65. Such losses do not occur every year, but FWS concluded the effect of these large larval loss events
The BiOp's Effects Analysis concludes that Project pumping operations have a "sporadically significant" adverse effect on smelt abundance:
BiOp at 210 (emphasis added). This passage was based in large part on Kimmerer (2008), which states:
Plaintiffs argue that the BiOp misinterprets and misapplies Kimmerer's work. Dr. Bryan Manly, Plaintiffs' expert in the fields of biostatistics and population survey design, addressed the BiOp's statement that "delta smelt entrainment can best be characterized as a sporadically significant influence on population dynamics." Manly Decl., Doc. 397, at ¶ 7. Manly opines that "[t]his statement is unclear and confusing," and explains:
Id. Kimmerer (2008) only estimated percentage losses of delta smelt within single year classes, and did not conclude that such losses reduce population abundance from one year to the next. Id. at ¶ 8. In fact, Kimmerer (2008) contains a number of disclaimers, including the caveat that
AR 018878. Kimmerer (2008) concludes that even though correlative analysis revealed "no effect of export flow on subsequent midwater trawl abundance," there is reason to be concerned about episodic effects caused by "large proportional losses of delta smelt that occur in some years." Id. As a result, according to Kimmerer (2008), population level effects should be
Dr. Manly is correct that Kimmerer (2008) does not support the position that entrainment has a "sporadically significant" effect on delta smelt abundance from one year to the next.
BiOp at 210 (emphasis added). It was not unreasonable for FWS to rely on Kimmerer (2008) to conclude that salvage events may be "sporadically significant." Plaintiffs' argument that FWS misinterpreted Kimmerer (2008) is unfounded. Kimmerer (2008) explains why, despite the absence of a statistically significant correlation between export pumping and the subsequent year's smelt population (i.e., between export pumping and the population growth rate), the demonstrated "sporadically significant" loss of smelt within year classes could significantly contribute to the species' jeopardy. FWS reasonably relied on Kimmerer (2008) for this finding.
Applying Kimmerer's estimates of entrainment and other data, the BiOp analyzed the effect Project operations have on the frequency of relatively large loss events. For larval and juvenile delta smelt:
BiOp at 220. The BiOp predicts that "the proposed action will decrease the frequency of years in which estimated entrainment is [less than or equal to] 15 percent. Thus, over a given span of years, the project as proposed will increase larval-juvenile entrainment relative to 1995-2005 levels. This will have an adverse
For adult delta smelt:
BiOp at 212-13.
This approach is consistent with Kimmerer (2008). The BiOp does not focus on whether there is a statistically significant correlation between OMR flows and the
b. Population Level Analysis/Life-Cycle Modeling.
Plaintiffs maintain the BiOp's failure to employ a life-cycle model ignored the best available science. Doc. 551 at 21-22. Using a quantitative
Federal Defendants knew of the value of life-cycle modeling. At a March 8, 2007 meeting on the OCAP ESA Re-consultation, attended by FWS employees, the importance of using a life cycle model was emphasized and inquiry made about the progress to date. AR 016016-016017. During the Delta Smelt Action Evaluation Team meeting on August 8, 2008, that Team recognized that population models for delta smelt already had been developed, and that those models were a starting point for quantitative analyses when
There is considerable dispute over whether an appropriate life-cycle model (i.e., one sufficient to perform the types of analyses that would be helpful in the BiOp) existed at the time the BiOp issued. Dr. Newman declares:
Newman Decl., Doc. 484 at ¶ 5.
All of the experts agreed with Dr. Newman that, at the time the BiOp was issued, there was no "off-the-shelf" life-cycle model to apply to delta smelt. Considerable dispute exists over how long it should have taken FWS to develop a competent model. It is undisputed that basic life-cycle models such as the Ricker model can be applied to fisheries data sets in relatively short order. Deriso Decl., Doc. 605, at ¶ 52. Dr. Deriso opined that FWS had all the data necessary to perform a life-cycle analysis. Deriso Decl., Doc. 401, at ¶ 70. Dr. Hilborn stated that a relatively complex life-cycle model that "follow[s] the
Federal Defendants' expert, Mr. Feyer disagrees:
Decl. of Frederick V. Feyrer
The ESA does not require FWS's to generate new studies. In Southwest Center for Biological Diversity v. Babbitt, 215 F.3d 58 (D.C.Cir.2000), the district court found "inconclusive" the available evidence regarding FWS's decision not to list the Queen Charlotte goshawk, and held that the agency was obligated to find better data on the species' abundance. The D.C. Circuit reversed, emphasizing that, although "the district court's view has a superficial appeal . . . this superficial appeal cannot circumvent the statute's clear wording: The secretary must make his decision as to whether to list a species as threatened or endangered' solely on the basis of the best scientific and commercial data
Plaintiffs advocate a narrow reading of both Southwest Center and American Wildlands, arguing these cases only mean that the agency is not required to gather new data in the field regarding a species if such information is not already available.
Plaintiffs cite no authority suggesting that the non-existence of an analytical model should be treated any differently from the non-existence of raw field data. FWS did not have an off-the-shelf form of "statistical analysis" it could apply to determine the effects of Project Operations on the delta smelt population. Although life-cycle modeling is standard practice in the field of fisheries biology, and a life-cycle model is being (and should have been) developed for delta smelt,
It is undisputed that application of a quantitative life cycle model is the preferred scientific methodology. Based on the preponderating expert testimony, FWS had the time and ability to prepare the necessary life-cycle model. FWS made a conscious choice not to use expertise available within the agency to develop one. A court lacks authority to require completion of a life-cycle model. In light of uncontradicted expert testimony that life-cycle modeling is necessary and feasible, FWS's failure to do so is inexplicable.
c. FWS' Use of Raw Salvage Numbers.
Plaintiffs argue that FWS's use of raw salvage numbers in its quantitative justification for the flow prescriptions in Actions 1 and 2 constitutes a failure to apply the best available science.
The BiOp provides a quantitative justification for these specific flow prescriptions in Attachment B, entitled "Supplemental Information related to the Reasonable and Prudent Alternative." The following subsection entitled, "Justification for Flow Prescriptions in Action 1," is critical to the present challenge and is reproduced here in its entirety:
BiOp 347-51 (emphasis added).
The analyses contained in Figures B-13 and B-14 serve, inter alia, as justification for Action 1: setting "break points" above and below which entrainment rates noticeably change. These break points are the foundation for the tiered flow restrictions in RPA Action 1. Cay Collette Goude
BiOp at 356.
Plaintiffs complain that the "Justification for Flow Prescriptions in Action 1" section does not represent the best available science because it is based upon analyses of gross (or "raw") salvage (i.e. the absolute number of fish salvaged over a given time period). The use of raw salvage data, as opposed to salvage data scaled to population size, is problematic because raw salvage figures do not account for the size (or relative size) of the smelt population. Deriso Decl., Doc. 401, at ¶ 28. The BiOp admits as much, and concedes that the analysis assumes that "as the population of Delta smelt declined, the number of fish at risk of entrainment remained constant." BiOp at 349. Considering raw salvage numbers alone provides no means of distinguishing an event in which 10,000 fish are salvaged out of a population of 20,000 from an event in which 10,000 fish are salvaged from a population of 20 million. Deriso Decl., Doc. 401, ¶ 28.
There is widespread agreement among the scientific experts that the use of normalized salvage data rather than gross salvage data is the standard accepted scientific methodology among professionals in the fields of fisheries biology/management. Doc. 633-1 at 7, 10 (the 706 experts concluded that, although it is not inherently unreasonable to consider the analysis in Figure B-13, it would be unreasonable to rely on that analysis as the
BiOp at 338. The August 26, 2008, draft meeting notes of FWS's Delta Smelt Action Evaluation Team state:
AR 010023. The Independent Peer Review of FWS's draft Effects Analysis for the BiOp also recommended to FWS that it "normalize" salvage to population size:
AR 008818. FWS used normalized salvage data in other parts of the BiOp, including the calculation of the Incidental Take Limit, evidencing its ability to do so. See Deriso Decl., Doc. 401, at ¶ 55 (citing BiOp at 386).
FWS nowhere explains its decision in the BiOp to use gross salvage numbers in Figures B-13 and B-14, and does not explain why it selectively used normalized salvage data in some parts of the BiOp but not in others. See Doc. 633-1 at 10 (Dr. Thomas Quinn, a 706 Expert with expertise in fisheries biology, estuarine ecology, and fish migration and movement, see Doc. 394 at 2, stated: "it is not clear why such an adjustment [of salvage to population size] was not made for the data examined in this report."). This was arbitrary, capricious, and represents a failure to utilize the best available science in light of universal recognition that salvage data must be normalized. This significant error must be corrected on remand.
(1) Federal Defendants' Argument that the Flow Prescriptions in Actions 1 and 2 are Otherwise Justified.
Federal Defendants argue that the specific flow prescriptions in Actions 1 and 2 are supported by more than just Figures B-13 and B-14. By portraying a negative as a positive, Federal Defendants point out that nothing in the BiOp suggests Figures B-13 and B-14 are in fact being used to draw conclusions about what is happening to the delta smelt population as a whole. Doc. 660 at 32. The BiOp concedes that "when relating salvage data to population-level significance [ ] the total number salvaged at the facilities does not necessarily indicate a negative impact upon the overall delta smelt population." BiOp at 338. Instead, Federal Defendants suggest that the raw salvage numbers are used in "tandem" with other population-based analyses. Other sections of the BiOp demonstrate that salvage by the Project pumping facilities can have a "sporadically significant" effect on the delta smelt population.
Id. at 33. This argument does absolutely nothing to overcome the fact that the use of raw salvage in the analyses depicted in figures B-13 and B-14 is scientifically unacceptable. Those figures cannot accurately depict when the Projects "lose the ability to manage entrainment and salvage risk," because they do not scale salvage to population size. These figures do not take into account the possibility that one data point used to generate the curves depicted may have been collected in a year when the delta smelt population was 1,000,000, making it more likely that larger numbers of smelt would be present near the pumps to be salvaged, while another data point might have been collected during a year in which the population was 10,000, making it inherently less likely that large numbers of smelt would be found in salvage. The present record suggests that such metrics are meaningless as management tools. They cannot be used to set specific flow prescriptions. FWS was offered the opportunity to, but has not justified its approach.
At the same time, Federal Defendants contend that at least some of the "break points" reflected in the specific flow prescriptions of Components 1 and 2 are based on information unrelated to Figures B-13 and B-14. For example, in the justification for Action 3, which is designed to protect larval & juvenile smelt, the BiOp relies upon Particle Tracking Model ("PTM") results to explore the likelihood of entrainment of particles in the south Delta (used to represent that portion of the smelt population located in the south Delta) that would likely be entrained at various levels of negative OMR flow. This is referenced as "entrainment risk":
BiOp at 366-68.
Although it seems logical that the PTM results and the "entrainment risk" PTM attempts to estimate have some applicability to the protection of adult smelt, the BiOp does not rely upon these results to justify Actions 1 or 2. NWF v. NMFS II, 524 F.3d at 932, n. 10 (a court "may not consider [a] post hoc justification, or infer `an analysis that is not shown in the record.'") (quoting Gifford Pinchot Task Force, 378 F.3d at 1074, and citing PCFFA v. U.S. Bureau of Reclamation, 426 F.3d 1082, 1091 (9th Cir.2005) ("[W]e cannot infer an agency's reasoning from mere silence," and "an agency's action must be upheld, if at all, on the basis articulated by the agency.")).
Federal Defendants also point out that Action 1 is based on "the historical observation that the first `winter flush' moves delta smelt into portions of the delta where they are particularly vulnerable to entrainment, for biological and hydrological reasons that are well documented." Doc. 660 at 23 (citing BiOp at 333-36). Federal Defendants argue:
Doc. 660 at 23. The BiOp arguably supports the assertion that a "winter flush" can move smelt into areas of the delta where they are particularly vulnerable. See BiOp at 331. However, nothing in the discussion of the timing, characteristics, or indicators of the winter flush explains why -5,000 cfs was set as the ceiling on negative OMR flows, rather than some other figure. That justification appears to come exclusively from Figures B-13 and B-14, which rely upon the flawed analyses of raw salvage.
Finally, Federal Defendants attempt to justify the use of raw salvage numbers in calculating the -5,000 cfs ceiling by a convoluted argument that Kimmerer's work proves raw salvage trends generally follow population trends. Kimmerer's work did
BiOp at 219-220 (emphasis added). The BiOp used a similar approach for adult delta smelt:
BiOp at 211 (emphasis added). Kimmerer did calculate proportional population-level losses for both adults and juveniles. See id.; see also BiOp at 212, 250-252, 262 (presenting model simulation results in Figures E4-E6 and E16 which estimate proportional population losses based on entrainment). It is undisputed, however, that Kimmerer did not generate any operational metrics or attempt to calculate the point above or below which OMR flows would have particular effects on the smelt population. As a result, there was no basis to rely on Kimmerer's work alone to justify the specific OMR flows imposed by Actions 1 and 2. Federal Defendants point to a section of the BiOp's Effect's Analysis that concludes that because "over a given span of years, the project as proposed will increase larval/juvenile entrainment relative to 1995-2005 levels," "[t]his will have an adverse effect on delta smelt based on their current low population levels." BiOp at 222. However, this conclusion references Figure E-18, which attempts to estimate the likelihood of having an event that would entrain a significant
Federal Defendants assert "Kimmerer (2008), like the BiOp, concluded that once raw entrainment numbers approach a certain level, population-level effects will occur." Doc. 660 at 25 (citing BiOp at 159, 164-65, 210; AR at 18854-18880). Federal Defendants describe this as the "Kimmerer Approach," and argue:
Doc. 660 at 25. This description is not supported by the record. The BiOp does not rely upon Kimmerer (2008) or any other source to conclude that salvage trends generally follow population loss trends. This is FWS's invention to support its arbitrary flow limit.
FWS nowhere explains in the BiOp or the AR how the sporadically significant population-level effects identified in Kimmerer (2008) factored into the quantitative analysis that led to the -5,000 cfs OMR flow limit imposed in RPA Action 2. Nowhere does the BiOp or the record explain how the analysis in Fig. B-13 "works in tandem" with the purported numeric results of Kimmerer (2008), and nowhere does the BiOp or the record state that Fig. B-13 was intended to create an "operational metric" to manage pumping to avoid "certain raw entrainment numbers." This is an abdication of the duty to satisfy the basic APA requirement that the agency "articulate a rational connection between the facts found and the choice made." Ariz. Cattle Growers' Ass'n, 273 F.3d at 1236.
Federal Defendants argue that, even if FWS had used a scaled salvage index to calculate the OMR flow ceiling, the results would not have been appreciably different. For the purposes of demonstrating the difference between the analysis presented in the BiOp and a population-normalized analysis, Dr. Deriso analyzed the relationship between normalized salvage and OMR flows. He initially concluded that there is "no statistically significant relationship between OMR flows and adult salvage for flows less negative than -6,100 [cfs] at the very least." Deriso Decl., Doc. 401 at ¶¶ 62-65.
(2) Use of Raw Salvage Analyses in Justification for Action 3.
Action 3, which is designed to "[m]inimize the number of larval delta smelt entrained at the facilities by managing the hydrodynamics in the Central Delta . . .," limits net daily OMR flow to no more negative than -1,250 to -5,000 cfs, based on a 14-day running average with a simultaneous 5-day running average within 25 percent of the applicable requirement for OMR. BiOp at 357. Action 3 establishes guidelines the SWG is to use when recommending where to set the OMR flow level within this range. Id. The BiOp anticipates that during most conditions, OMR flows will range between -2,000 and -3,500 cfs. Id. at n. 10. During certain years of higher or lower predicted "entrainment risk," flows as low as -1,250 or as high as -5,000 may be recommended. Id.
Plaintiffs do not challenge the basis for the low end of the range (-1,250 cfs) or the criteria used to formulate recommendations within the middle of the range. Plaintiffs do argue that the upper end of the range (-5,000 cfs) is based solely on FWS's raw salvage analysis and should be invalidated.
The BiOp explains in the section of Attachment B addressing Action 3 that "[t]wo scenarios span the range of circumstances likely to exist during Action 3":
BiOp at 358 (underlined emphasis in original; emphasis in italics added). The Action 3 discussion does not provide an independent justification for the choice of -5,000 cfs as the upper limit for OMR flows under the low entrainment risk scenario. Federal Defendants suggest that the upper limit is justified in the Delta Smelt OCAP Team's notes, which indicate that "[a]t -5,000 OMR, the model shows 40% entrainment at station 815." AR 009459. This is a reference to the PTM model results. There are two major problems with Federal Defendants' reliance on this statement. First, it is contained within a section of the Delta Smelt OCAP Team notes entitled "Actions 1 and 2." AR 009457-60. Even if this statement was made in reference to Action 3, it does not justify using -5,000 cfs as the upper limit. The PTM study assumed an upper limit of -5,000 cfs and never considered any flow ranges above that. Nor is it made clear why 40% particle entrainment is a rational threshold of significance, as opposed to some lower or higher threshold. In sum, the PTM study does not justify the imposition of -5,000 cfs as an upper limit in Actions 1, 2, or 3.
The "Action #3" section of the Team's notes does contain an explanatory statement regarding the source of the -5,000 cfs upper boundary for Action 3: "The -5,000 OMR cap was established by Wanger." AR 009463; see also AR 009462 ("[t]he group discussed the merits of using the -5,000 OMR per Wanger Order"). It is unclear how FWS can rely directly on a provisional court order, entered as a remedial stopgap measure pending comprehensive scientific analysis, to establish the scientific basis for an RPA. The subject Order was the result of an Interim Remedies proceeding in the challenge to the previous Delta Smelt BiOp. After an evidentiary hearing, it was determined from the then available data that "the number of Delta smelt entrained at the CVP and SWP export facilities begins to rise significantly when negative flows on the OMR exceed approximately -5,000 cfs. [Tr. 641:14-642:5; 725:16-17; DWR Ex. D ¶ 4; DWR Ex. G ¶ 34; SWC Ex. N]." NRDC v. Kempthorne, 1:05-cv-1207, Doc. 561, Int. Rem. Findings, at ¶ 38. The finding was based on two studies of the relationship between OMR flows and smelt salvage: (1) a nonlinear model presented by Sheila Greene of DWR; and (2) the linear model created by Peter Smith, which became the basis for Figure B-13. Both of these analyses utilized raw salvage data. AR 009251 (Green's analysis); see also 1:05-cv-1207, Doc. 399, Decl. of Jerry Johns, Ex. B and C; 1:05-cv-1207, Doc. 419, Decl. of Christina Swanson, at 12, Fig. 8. That raw salvage studies were previously relied upon by the Court, when no others were available, does not validate their use in the 2008 Smelt BiOp.
d. FWS's Comparison of CALSIM II Data to DAYFLOW Data.
The BiOp's effects analysis used analytical methods and data, "including the CALSIM II model outputs provided in the appendices of Reclamation's 2008 OCAP BA, historical hydrologic data provided in the DAYFLOW database, statistical summaries derived from 936 unique 90-day particle tracking simulations published by
CalSim II is a computer model developed jointly by DWR and Reclamation. Declaration of Aaron Miller,
CalSim II uses historic hydrologic data from October 1922 to September 2003, including precipitation, runoff into reservoirs and inflow into the Delta from unimpaired streams. Miller Decl., Doc. 548-1, at ¶ 10 & n. 1. The model further assumes a level of development, which reflects water demand resulting from particular levels of urban population, agricultural production, and wildlife refuge needs, id. at ¶ 10, along with the effect of environmental regulations and programs, id. at ¶ 27; BiOp at 207. CalSim II is capable of estimating the position of X2. Miller Decl., Doc. 548-1, at ¶ 14.
The BiOp considered a number of CalSim II studies, either directly or indirectly:
The OCAP BA suggested using Calsim II Study 7.0 as the current baseline and Study 6.1 as the historical baseline for evaluating the impacts of project operations. BiOp at 204. However, the BiOp rejected this suggestion because, although "changes were expected between Study 6.1 and Studies 7.0 and 7.1," the modeled results were "nearly identical." Id. FWS concluded from this result that Calsim II could not accurately generate an empirical baseline. See id. at 204-06. Instead, FWS chose to "use actual data to develop an empirical baseline," including the use of the Dayflow model to "develop historical time series data for hydrologic variables." BiOp at 206. Dayflow is a model that estimates historic outflow based on historic precipitation, inflow, and exports, and estimates of delta island diversions. Dayflow also provides an estimate for the location of X2. Miller Decl., Doc. 548-1, at ¶¶ 14-15.
In the BiOp, FWS purports to quantify adult entrainment by comparing OMR flows from CalSim II studies to historic OMR flows during 1967-2007. BiOp at 212-13. The BiOp depicts these results in Tables E-5a, E-5b, and E-5c:
Table E-5a. Historic and CALSIM II modeled median winter (Dec-Mar) OMR 6 flows by water year type------------------------------------------------------------------------------------------------------------------- Water year type Historic 7 7.1 8 9 9.1 9.2 9.3 9.4 9.5 ------------------------------------------------------------------------------------------------------------------- Wet -1033 -5256 -5498 -5699 -5684 -5500 -3999 -3678 -7066 -6100 Above Normal -5178 -7209 -7923 -8073 -8156 -7595 -6863 -6934 -7861 -7723 Below Normal -2405 -6461 -7208 -7009 -6599 -6420 -5647 -6736 -6721 -6343 Dry -5509 -6443 -6931 -6692 -6620 -6353 -6831 -7438 -5785 -5760 Critical -5037 -4547 -4931 -4980 -5051 -4588 -5320 -5194 -4260 -3845 Table E-5b, Winter OMR Flow percent difference from historic median value to CALSIM II model median valueWater year type 7 7.1 8 9 9.1 9.2 9.3 9.4 9.5 ------------------------------------------------------------------------------------------------------------- Wet 408.92% 432.37% 451.84% 450.36% 432.50% 287.16% 256.13% 584.15% 490.63% Above Normal 39.21% 53.01% 55.90% 57.49% 46.67% 32.53% 33.91% 51.80% 49.13% Below Normal 168.62% 199.68% 191.41% 174.35% 166.90% 134.75% 180.05% 179.42% 163.72% Dry 16.95% 25.81% 21.48% 20.17% 15.32% 24.01% 35.02% 5.01% 4.57% Critical -9.74% -2.12% -1.14% 0.27% -8.92% 5.61% 3.11% -15.44% -23.68% ------------------------------------------------------------------------------------------------------------- Table E-5c. Percent difference from historic median salvage to predicted salvage based on Dec-Mar OMR flows from CALSIM II studies------------------------------------------------------------------------------------------------------------- Water year type Study 7 Study 7.1 Study 8 Study 9 Study 9.1 Study 9.2 Study 9.3 Study 9.4 Study 9.5 ------------------------------------------------------------------------------------------------------------- Wet 45.64% 48.25% 50.43% 50.26% 48.27% 32.05% 28.59% 65.20% 54.76% Above Normal 15.15% 20.49% 21.60% 22.22% 18.04% 12.57% 13.10% 20.02% 18.99% Below Normal 38.17% 45.20% 43.33% 39.46% 37.78% 30.50% 40.76% 40.61% 37.06% Dry 6.80% 10.36% 8.62% 8.09% 6.15% 9.63% 14.05% 2.01% 1.83% Critical -3.70% -0.81% -0.43% 0.10% -3.39% 2.13% 1.18% -5.87% -9.00% -------------------------------------------------------------------------------------------------------------
Tables E-5b and E-5c depict changes in OMR flows and entrainment using the Dayflow-generated historic data as the baseline and comparing that to CalSim II study results. In addition, the BiOp utilized an equation taken from Kimmerer's
BiOp at 212-13.
Based on these comparisons of CalSim II data and Dayflow-generated historic data, the BiOp concludes, "adult entrainment is likely to be higher than it has been in the past under most operating scenarios, resulting in lower potential production of early life history stages in the spring in some years." BiOp at 213.
The BiOp performed comparisons of CalSim II data to Dayflow-simulated historic baseline data to quantify the effects of the action on larval and juvenile delta smelt. See, e.g., BiOp at 219 (examining effect of action on larval and juvenile entrainment: "[t]he analysis is based on comparison of historical (1967-2007) OMR and X2 to the proposed action's predictions of these variables provided in ... [CalSim] studies 7.0, 7.1, 8.0, and 9.0-9.5"). Figure
Figure E-17. Frequency distribution of estimated proportions of larval-juvenile de smelt entrained at Banks and Jones for 1967-1994 and 1995-2007. The data were extrapolated to an 82-year period to make them comparable to the CALSIM II out
BiOp at 264. The black dashed line depicts entrainment estimates for Dayflow-generated historic data from 1967 to 1994, the red line with diamonds depicts entrainment estimates for Dayflow-generated historic data from 1995-2007, and the fine lines depict the various entrainment estimates based on Calsim II data. Based on these calculations, the BiOp concludes that "the proposed action will decrease the frequency of years in which estimated entrainment is ≤ 15 percent. Thus, over a given span of years, the project as proposed will increase larval juvenile entrainment relative to 1995-2005 levels. This will have an adverse effect on delta smelt based on their current low population levels." BiOp at 222.
A separate BiOp analysis purports to quantify the effects of the project operations on delta smelt habitat by comparing CalSim II model projections of the location of X2 under the proposed operations to the median location of X2 over the historical period 1967-2007, as simulated by Dayflow. BiOp at 235-36. Based on this comparison, the BiOp concludes "[t]he median X2 [locations] across the CalSim II modeled scenarios were 10-15 percent further upstream than actual historic X2 (Figure E-19)." Id. at 235. In reliance on these percent differences between CalSim II-created data and historical data, the BiOp concludes: "proposed action operations are likely to negatively affect the abundance of delta smelt." Id. at 236.
According to Plaintiffs, the comparison of Calsim II to Dayflow outputs distorts the BiOp in several key ways:
(1) Was FWS's Decision to Compare Calsim II to Dayflow Model Runs a Violation of the Best Available Science Requirement?
Mr. Aaron Miller opines that outputs from a CalSim II study should not be compared to outputs from the Dayflow model because the assumptions used in the two models are significantly different. Miller Decl., Doc. 548-1, at ¶¶ 22-55. He identified the following key differences between the models:
Mr. Miller opined that best scientific practice is to compare models that use consistent assumptions and methodologies. See id. at ¶¶ 38, 51, 54; see also id. at ¶ 41. The approach taken in the BiOp, quantitatively comparing Calsim II runs to Dayflow model outputs "introduces significant error into the analysis." Id. at ¶ 56.
Dr. Punt, a 706 Expert added that "[i]n principle, there is nothing wrong with fitting a model using a set of OMR/X2 valued from one model and making predictions using OMR/X2 values which are based on the output from a different model, as long as the two sets of values are calibrated. . . . Not calibrating the two sets of model outputs will lead to some bias in the inferences, with the level of bias dependent on the net effect of all the differences between the `historical' and Calsim II values for the same years." Doc. 633-1 at 15.
Mr. Derek Hilts, a FWS employee who previously served as "Engineer-in-Charge" of CVP/SWP modeling for Reclamation, disagrees with Mr. Miller's general opinion that comparing Calsim II and Dayflow outputs is per se scientifically unreliable, noting that the OCAP BA's Appendix D specifically compared Calsim II and Dayflow runs for the purposes of testing "Calsim II's ability to simulate the CVP/ SWP system reasonably well." Decl. of Derek Hilts, Doc. 540, at ¶ 11. But, as Mr. Miller explains, this type of "validation comparison" is designed to "help establish the credibility of the CalSim II model by showing that the model moves water, simulates operation of the export pumps, and so forth, with the same general timing and magnitude as actual historical data show." Second Miller Decl., Doc. 597, at ¶ 12. In fact, Mr. Miller points out that the detailed validation data contained in the OCAP BA demonstrate that, although Calsim II outputs generally track historical data, they "do not precisely match the actual historical data." Id. at ¶ 12. Because validation is "looking only at the general operational performance of the model," a validation comparison "does not need to control for the effects of all the differences in the model and the historical measurements. . . ." Id. at ¶ 13.
More specifically, Mr. Hilts disagrees with Mr. Miller's critique that the divergent methods of calculating the position of X2 render the comparison used in the BiOp scientifically inappropriate. Mr. Hilts does not dispute Mr. Miller's conclusion that the KM and ANN equations produce marginally different outcomes. Instead, Mr. Hilts criticizes Mr. Miller for failing to "assert that any such error would have changed the conclusions drawn in the BiOp." Doc. 540 at ¶ 19.
Assumedly to demonstrate that the conclusion would not have changed, Mr. Hilts revisited the calculations in the BiOp, using the KM equation in both models to
Exhibit 2-Figure 3 - Fall X2 Comparison
Doc. 540, Exhibit 2, Figure 2. According to Mr. Hilts, this figure demonstrates the "same general upstream movement" of X2 "discussed in the 2008 BiOp." Id. at ¶ 17.
Recognizing that his revised analysis demonstrates the same general upstream shift as the BiOp, Mr. Hilts criticizes Mr. Miller for failing to "quantify the effect of the alleged biases ostensibly embedded in the X2 comparison presented in the BiOp." Id. at ¶ 7. Federal Defendants contend that even if the Calsim II to Dayflow comparison introduced bias, that bias was not significant. However, the record suggests otherwise.
Recognizing that it is not possible to quantify all aspects of the error caused by the comparison of Calsim II runs to Dayflow output, Mr. Miller's reply declaration endeavored to quantify the bias in his reply declaration. See Second Miller Decl., Doc. 597. As with Mr. Hilts' revised calculations, Mr. Miller compared the results reported in the BiOp (Calsim II runs applying the ANN equation and Dayflow runs using the KM equation), to a revised set of results using the KM equation instead
Mr. Miller opined that all errors/biases could have been avoided by comparing CalSim II study 7.0—designed as a current conditions baseline—instead of the "historical" baseline in the BiOp, to the near-future 7.1 study.
The theoretical problems with using a Calsim II to Calsim II comparison were manifest. As discussed above, when CalSim II was used to model current Project operations, and these results were then compared to the results of a CalSim II modeling run purportedly simulating past operations, the results "were nearly identical" despite significant operational changes in current operations as compared to past. BiOp at 204-205. The BiOp explains that
In light of the known and material resulting disparity, FWS's decision to use a Calsim II to Dayflow comparison to quantitatively justify its jeopardy and adverse modification conclusions, without attempting to calibrate the two models or otherwise address the bias created, was arbitrary and capricious and ignored the best available science showing that a bias was present. The BiOp specifically relied upon the quantitative nature of the Calsim II to Dayflow comparisons in many places. For example, in reference to the X2 shift and resulting effects on smelt habitat:
BiOp at 235. The BiOp does not explain to what extent the ultimate jeopardy/adverse modification conclusions were based upon the calculated
Federal Defendants concede but understate that "the two models are not perfectly calibrated, and a slight transformation of the data occurs when the analysis switches from one model to the other, the BiOp acknowledges this slight shift." Doc. 660 at 36. Nevertheless, FWS concluded in its "scientific judgment  that the CalSim [II]-to-Calsim [II] output was far worse." Id. (citing BiOp at 207). Federal Defendants argue this was a choice between "one comparison that yielded a slight calibration issue and another that completely masked altogether the variable sought to be compared. . . ." and that "it would have been irrational for the Service to proceed with [a Calsim II to Calsim II comparison" after discovering its flaws. Id. This may be the case, but it does not follow that what FWS did with the Calsim II to Dayflow comparisons was rational or based upon the best available science.
FWS had actual notice of scientific concerns with comparing historical data to CalSim II simulated data. DWR Deputy Director Jerry Johns, on October 24, 2008, submitted comments to FWS on the draft effects analysis, generally cautioning against the comparison of modeled data with actual data:
AR 008671; see also AR 008668 (further explaining unreliability problems comparing historic and modeled data). Although neither Mr. Miller nor any interested party suggested that comparing Dayflow to Calsim II data was a scientifically invalid methodology prior to the issuance of the BiOp, the BiOp does not recognize the essential methodological defect, or explain how any of the conclusions it reached account for it. Nor does the BiOp explain how it is able to attribute the changes in X2 it found between the "historic" baseline and the CALSIM studies to the proposed action, and not to any of the other differences between the Dayflow and Calsim II models. Instead, FWS only rationalizes that it opted to use the "historic" baseline rather than CALSIM Study 7.0 as the baseline because, "the CALSIM monthly simulation model does not capture a precise Delta operation.... [Thus], the inaccuracies in CALSIM lead us to use actual data to develop an empirical baseline." BiOp at 204 & 206. This statement may
This is of particular concern because DWR, a joint operator of the projects communicated its scientific and operational concerns based on known available science. DWR and Reclamation have legal obligations to allocate water supply reasonably and responsibly, not solely to save the species. As discussed in below at Part VII.B, FWS's focus on its responsibilities to the species appears to have caused it to ignore its own regulations' obligations to consider impacts to the overall water supply and additional uses. The potential impacts of inaccurate quantitative analyses in the BiOp cannot be understated.
Defendants argue FWS's decision to compare the two models to quantify the shift of X2 was a reasonable scientific decision, even though other experts may disagree. Doc. 660 at 17-19; Doc. 661-3 at 13-14. Federal Defendants cite Lands Council, 537 F.3d at 993, to justify FWS's modeling decisions as entitled to deference, because it is a matter "within its area of special expertise, at the frontiers of science."
In NWF v. EPA, the EPA evaluated several regulatory options for economic feasibility, applying a particular model to predict whether businesses were likely to go bankrupt under the weight of additional regulation. NWF criticized the model on several grounds, including that the model had "an error rate of at least 15%." Id. at 565. The D.C. Circuit examined and rejected each critique, reasoning that none called into question the model's reliability. Id.
Here, however, undisputed expert testimony offered by DWR, a co-operator of the Projects, calls into question the manner by which FWS utilized the two models to evaluate the impact of project operations on the position of X2. The Calsim II model was
(2) Does the Use of Dayflow to Represent the Baseline in the Project Effects Analysis Improperly Attribute Past Effects to the Projects?
DWR asserts that FWS's use of an "historical baseline" was per se unlawful because the ESA's implementing regulations "require the Service to use
See also Consultation Handbook at 4-22 (baseline includes "effects of past and ongoing human and natural factors leading to the current status of the species") (emphasis added). In addition, DWR cites NWF v. NMFS II, 524 F.3d at 930, which held that an agency action "only `jeopardize[s]' a species if it causes some new jeopardy." (Emphasis added.) DWR argues that "[b]ecause [FWS's] baseline looks to decades past, it cannot be used as a basis for assessing any `new jeopardy' posed by Project operations going forward." Doc. 548 at 8.
DWR oversimplifies the issue. FWS's BiOp sought to determine whether ongoing and future coordinated operations of the CVP and SWP would cause jeopardy to the delta smelt or adversely affect its critical habitat. Arbitrarily setting the baseline at 2008, when the BiOp's analysis was finalized, would not have captured the impacts of then-ongoing project operations. The agency had discretion to use a historic baseline.
(3) Use of Comparisons Between CALSIM and DAYFLOW Model Outputs to Justify Imposition of Component 3 (Action 4), the Fall X2 Action.
In addition to utilizing comparisons of Calsim II and Dayflow data in the Project Effects section to demonstrate that Project Operations affect the location of X2, the BiOp relies on these comparisons to justify the imposition of RPA Component 3 (Action 4, or the "Fall X2 action"). The BiOp's "Justification" section discussing Action 4 references the Calsim II to Dayflow comparison:
BiOp at 373. Figures E-19 and E-25 compare historic X2 locations simulated by Dayflow to conditions under planned project operations simulated by Calsim II:
Figure E-19. X2 (km) during September to December based on historic data and CALSIM II model results. The center line in the box is the median and the outer box boundaries are the first and third quartiles.
BiOp at 265, 271.
Undisputed expert testimony establishes the likelihood that the comparison of Dayflow to Calsim II data introduced significant error into the analysis that forms the basis for Figures E-19 and E-25. Mr. Miller concluded 40% of the difference between X2 as estimated by study 7.0 and the historical X2 baseline reported in the BiOp is error attributed entirely to the use of the KM equation to calculate the historical baseline X2 and the ANN equation to calculate the CalSim II study 7.0 results. Second Miller Decl., Doc. 597, at ¶ 15. It is unknown which portion of the remaining 60% of difference is attributable to the proposed action, and which portion is due to the other identified biases. Id. at ¶ 16. Dr. Punt gave a consistent opinion, estimating that the bias created by failing to calibrate the models "seems non-trivial" and opining that it could be "as large as the differences seen in Figure E-19," the figure in the BiOp depicting the shift in X2 between the historic/Dayflow runs and the Calsim II runs. Doc. 633-1 at 16.
Federal Defendants do not respond directly to these assertions of bias. Instead, they point out that the historical X2 data was not the only basis for Action 4. Doc. 660 at 49. The BiOp describes multiple sources of information that were considered:
BiOp at 204; see also Feyrer Decl., Doc. 541, at ¶ 17. Additionally, "[t]he Service's
The justification for Action 4 relies heavily on the quantitative analyses presented in Figures E-19 and E-25. See BiOp at 373. Whether Action 4, which has substantial adverse impacts on the water supply, is justified in the absence of the quantitative analysis cannot be determined. These questions are too serious to go unanswered and must be remanded to the agency for further explanation and/or correction.
(3) Other Challenges to the Fall X2 Action.
Plaintiffs raise additional challenges to the justification for the Fall X2 action, arguing "neither the BiOp nor the record demonstrate that Component 3 (Action 4) is necessary to avoid jeopardy to the delta smelt or destruction or adverse modification of its critical habitat, or that it will materially benefit the species or its habitat." Doc. 697 at 25.
a. Plaintiffs' Argument that Action 4 is an "Untested Hypothesis."
Plaintiffs maintain that Action 4 is nothing more than an "untested hypothesis," emphasizing that FWS acknowledges the need to assess the efficacy of Action 4 over time:
BiOp at 283.
This does not render Action 3 a mere "hypothesis," nor does this "demonstrat[e] the absence of a rational connection between Action 4 and an increase in smelt abundance." Doc. 697 at 25. It is not inconsistent to find an action necessary, while also calling for an evaluation whether that action actually produced the expected outcomes. It is of no moment that in a research paper Mr. Feyrer referred to the X2 requirement as "the hypothesis that the combined effects of pre-adult abundance and the amount of suitable abiotic habitat (or X2) during autumn affect recruit abundance the following summer." AR 018285 (Feyrer unpub. 2008). He is a scientist gathering further information about the relationship between X2 and smelt population dynamics. The record does not suggest this is scientifically improper. It was not clearly erroneous for FWS to rely upon Feyrer's 2008 research paper.
b. FWS' Reliance on the Feyrer Papers.
FWS based its effects analysis of X2 in part
Plaintiffs' letter, responding to a draft of the BiOp, identified a purported flaw in the Feyrer et al. (2008) analysis: the supposed correlation between Fall X2 and delta smelt abundance Feyrer et al. was driven by the presence of a single, apparently outlier, data point. Removing that data point resulted in a finding of no statistically significant relationship between Fall X2 and the abundance of delta smelt. See SLDMWA & SWC Letter to NMFS and FWS (Oct. 20, 2008) at 2 (AR 006407). As the letter noted, "a correlation solely reliant upon a single data point cannot reasonably be considered as an actual indicator of cause." Id. Plaintiffs' argument continues:
Doc. 551 at 35.
Federal Defendants respond:
Doc. 660 at 44. Federal Defendants are correct that removing a data point simply because it changes the result would be arbitrary. Plaintiffs do not point to any scientific basis, let alone an undisputed one, for excluding the so-called "outlier" point, other than that it is an outlier. Plaintiffs do not show the point is erroneous or identify competing studies that reach different opinions from Feyrer that FWS failed to consider. This is a scientific dispute among experts over which the agency is owed deference.
c. Do the Studies Cited in the BiOp Support FWS's Conclusion that Fall X2 Determines the Extent of Suitable Smelt Habitat?
The BiOp concludes that to avoid jeopardy the RPA Actions must "[i]mprove fall habitat for delta smelt by managing  X2 through increasing Delta outflow during fall when the preceding water year was wetter than normal." BiOp at 369; see also BiOp at 374 ("Outflow during fall determines the location of X2, which determines the amount of suitable abiotic habitat available to delta smelt (Feyrer et al. 2007, 2008)."). Plaintiffs argue that none of the articles FWS cited in the BiOp actually support FWS's conclusion that the location of X2 determines the amount of suitable habitat for the delta smelt. See Doc. 551 at 39-41.
(1) Feyrer (2007).
Plaintiffs first criticize the BiOp's reliance on a 2007 Canadian Journal of Fisheries and Aquatic Sciences paper by Feyrer, Nobriga, and Sommer, three scientists then working for Plaintiff DWR, entitled, "Multidecadal trends for three declining fish species: habitat patterns and mechanisms in the San Francisco Estuary, California, USA." AR 018266-77. That paper used a generalized additive model to assess the relationship between changes in environmental quality for delta smelt (particularly salinity and turbidity) and the abundance of delta smelt. Id.
The paper demonstrated that a statistically significant relationship existed between salinity and turbidity in the fall months and the abundance of juvenile delta smelt the following summer for the period of 1987-2004. Id. This time period was chosen because it corresponded to the invasion of the Corbula amurensis clam which has resulted in significant ecological changes to the Delta. AR 018270. The results demonstrated that 63 percent of sampling stations showed statistically significant declines in environmental quality in the fall, with the western and southeastern regions of the Delta suffering the most substantial long term declines in habitat quality, while the area at the confluence of the Sacramento and San Joaquin Rivers least affected by the changes in fall habitat quality. Id.
The Feyrer (2007) analysis uses the results of a 2005 study by William Bennett published in the Journal of San Francisco Estuary and Watershed Science, which concluded: "Factors defining the carrying capacity for juvenile delta smelt are unknown, but may include a shrinking volume of physically suitable habitat combined with a high density of competing
The BA acknowledged the results of this 2007 study, including the conclusion that fall habitat conditions have population level effects:
AR 010626; see also AR 10628-29 (reproducing maps and graphics showing habitat declines and geographic distribution of declines from Feyrer (2007)).
The conclusions in Feyrer (2007) were also recognized in the January 2008 report on the Pelagic Organism Decline by the Interagency Ecological Program, which reached nearly identical conclusions about the effects of declining fall habitat quality on delta smelt abundance. See AR 016938, 016954, 016957.
Plaintiffs level several criticisms at Feyrer (2007) and the BiOp's use of the study. First, Plaintiffs complain that the Feyrer study "repeatedly states that the article supports only the `hypothesis' that EQ (a metric devised by Feyrer that incorporates two factors—secchi depth and temperature—in addition to salinity) is `an important predictor of delta smelt abundance during the 1987-2004 post-Corbula period.'" Doc. 697 at 29 (citing AR 018271). The use of the term "hypothesis" does not undermine Feyrer's conclusions, as articulating a hypothesis is a step in the scientific method.
Plaintiffs next point out that while Feyrer (2007) found a statistically significant relationship between the location of X2 and delta smelt abundance from 1987-2004, there was no statistically significant correlation for the twenty years prior to Corbula's arrival (1968-1986). AR 018271. The article acknowledged "[b]iotic variables, most notably competition, predation, and food availability, could have also played a major role in controlling the distribution" of delta smelt and "[t]he recent step change in the abundance of pelagic fish suggests that salinity alone may not be sufficient to explain long-term trends in estuarine management." AR 018275. The article confirms that even when considering specific conductance (i.e., X2), secchi depth, and temperature together, those three factors collectively only predict 25.7% of future delta smelt occurrence. AR 018271. Finally, the article concludes that "the degree to which EQ could be used for management purposes remains unclear." AR 018275.
Tucson Herpetological Society, 566 F.3d 870, held that an agency may not rely on "underdeveloped and unclear" studies to support ESA findings. There, an earlier FWS finding concluded that population dynamics information for the flat-tailed horned lizard was "limited and inconclusive." Id. at 878. Nevertheless, FWS relied on these uncertain studies to infer that
FWS's reliance on Feyrer (2007) is distinguishable. Although Feyrer (2007) acknowledges that multiple factors may be contributing to the delta smelt's decline, the study affirmatively finds a statistically significant, albeit limited, correlation between the fall location of X2 and subsequent delta smelt abundance. This finding is not uncertain. It acknowledges the context of a complex ecosystem in which many factors may impact the species. Feyrer's X2 analysis explains only 25.7 percent of subsequent year abundance. This is not a de minimis impact. (It goes, rather, to the agency's overemphasis on X2 to impose a significantly restrictive fall RPA component.) Plaintiffs cite no studies that demonstrate the cause of the remaining 74.3 percent variation in abundance. FWS's reliance on Feyrer (2007) was not per se unreasonable, however, FWS's use of the study to justify operational restrictions is more questionable.
(2) The Feyrer (2008) Paper.
A 2008 paper by the same authors (Feyrer, Nobriga, Sommer), along with Ken Newman of FWS, appeared in the Estuaries and Coasts journal. See AR 018278-306. This expanded upon the 2007 research, used statistical analyses, including both Ricker and Beverton-Holt type models, to compare Fall X2, habitat area for and subsequent abundance of delta smelt. Id. Like Feyrer (2007), it concluded that fall habitat quality had a statistically significant effect on subsequent delta smelt abundance, determining that the model incorporating prior abundance and X2 accounted for 66 percent of the variability in subsequent abundance. Id. The authors identified a number of reasons why the location and extent of fall habitat affected subsequent abundance:
AR 018293. The study concluded: "Comparing the first ten years of the time series to the last ten years, the amount of suitable abiotic habitat for delta smelt during autumn has decreased anywhere from 28% to 78%, based upon the least and most restrictive habitat definitions, respectively." AR 018293-94.
Like Feyrer (2007), Feyrer (2008) narrowly considered abiotic factors alone, and limited its focus on X2. Feyrer (2008) concludes that manipulating X2 might affect delta smelt populations, but that "the specific mechanisms by which X2 affects delta smelt remain poorly understood." AR 018294. Because of this uncertainty, Feyrer (2008) recommended that any "`real world' applications of [its] results should incorporate an adaptive management approach, allowing resource manager[s] to adjust actions in response to new
Other than arguing that Feyrer (2008), like Feyrer (2007), used the "outlier" data point, Plaintiffs submitted no other substantive criticism of Feyrer (2008). FWS made no error in considering Feyrer (2008).
(3) The Bennett (2005) Article.
Plaintiffs criticize the BiOp's citation of Bennett (2005), because, like the Feyrer studies, this article does not conclude that salinity or the location of X2 is a
The BiOp does not rely on Bennett (2005) as the "be all end all" to address the management question. The BiOp cites Bennett (2005) for a series of factual assertions, including the premise that: "There is a statistically significant stock-recruit relationship for delta smelt in which pre-adult abundance measured by the FMWT positively affects the abundance of juveniles the following year in the TNS." BiOp at 178. Plaintiffs do not disagree that Bennett supports this assertion. See AR 017035 (reviewing various studies finding a relationship between X2 position and smelt abundance). Plaintiffs have not demonstrated that the BiOp misrepresented Feyrer (2007), Feyrer (2008), or Bennett (2005), or that any of these studies are not part of the best available science.
d. Does the Best Available Science Support the Assumption that X2 Is a Surrogate for Smelt Habitat?
Plaintiffs object that FWS' use of X2 as a "surrogate" indicator for delta smelt habitat suitability is not supported by the best available science, arguing: "FWS stretched the limited findings of Feyrer et al. (2007 & 2008) far beyond defensible application, converting a tentative finding that the location of X2 might influence habitat suitability into a definite conclusion that X2 alone determines the area and extent of delta smelt habitat for delta smelt." Doc. 551 at 38.
Feyrer (2007) discussed its limitations: "[T]he degree to which EQ [Feyrer's three-part index of environmental quality, which included salinity] could be used for management purposes is unclear. . . . salinity alone may not be sufficient to explain long-term trends in estuarine management." AR 018275. Feyrer (2008) concluded, "[o]ur results suggest that managing estuarine flow or X2 during autumn can have positive effects on delta smelt habitat and abundance." AR 018292. The FWS BiOp relied on these two studies to conclude: "Outflow during fall determines the location of X2, which determines the amount of suitable abiotic habitat available to delta smelt (Feyrer et al. 2007, 2008)." BiOp at 374. This is one scientific interpretation of X2's role. It may be a "stretch" or unjustified expansion of Feyrer (2007) or Feyrer (2008), however, when all the disputed X2 studies are considered, X2 has a measurable effect on smelt abiotic habitat.
a. Are Delta Smelt Habitat Limited?
Plaintiffs assert that FWS ignored available evidence SLDMWA and SWC presented to FWS indicating that delta smelt are particularly unlikely to be habitat-limited, given their record low abundance. SLDMWA-SWC Letter at 5-6, AR 006410-006411.
It is unquestioned that delta smelt survey results show decreasing abundance throughout the 2000s, with their current abundance at a historic low. BiOp at 154. In addition, the BiOp notes that "most life stages of the delta smelt are now distributed across a smaller area than historically," and recognizes that this is likely due to multiple factors, including channelization, conversion of Delta islands to agriculture, water project operations, salinity, turbidity, high summer water temperatures, and predacious species. BiOp at 152-53, 157. Plaintiffs argue that "simply because the delta smelt may currently occupy lesser spatial area than they did previously, does not mean that forcing a relocation or expansion of X2 will impact the species beneficially or at all." Doc. 697 at 33. Most of Plaintiffs' evidence submitted to support this argument has been stricken. See Doc. 750 at ¶ 8 (striking paragraphs 14-17 of the Declaration of Charles H. Hanson, Doc. 395). Plaintiffs insist that the BiOp itself admits that the delta smelt is not currently habitat-limited, citing pages 237 and 374. Page 237 makes such an admission, but it is qualified:
(Emphasis added). Pages 374-75 state:
While "admitting" that the delta smelt may not be habitat-limited, the smelt has become "increasingly habitat-limited over time," contributing to the population's decline, and that worsening habitat conditions may limit smelt recovery. Plaintiffs have not presented any record best available scientific evidence not considered by FWS that contradicts this conclusion.
b. FWS' Use of a Linear Model Instead of a Multiplicative Stock-Recruit Model.
Plaintiffs next argue that FWS committed a serious scientific error by employing a linear additive model to determine the effect of Fall X2 on delta smelt abundance. See BiOp at 268, Figure E-22. Dr. Deriso opines that FWS' use of the linear additive model ran counter to decades of established scientific consensus that linear models are not effective for modeling fish populations. Deriso Decl., Doc. 396, at ¶ 80. He claims that standard practice in fisheries management is to use a multiplicative stock-recruit model, such as the Beverton-Holt or Ricker models, both of which are among the standard tools of the relevant science. Id. at ¶ 83; see also Hilborn, Decl., Doc. 393, at ¶ 31.
The BiOp estimated the effect of X2 on delta smelt abundance by using an updated version of the linear-additive model developed in Feyrer (2008). BiOp at 236. The result was Fig. E-22, which shows a linear relationship between X2 and delta smelt abundance such that juvenile abundance (which is measured using the Spring Tow-Net Survey) is equal to the sum of a constant number, plus the previous year's Fall Midwater Trawl Survey (times a constant number), minus X2 (times a constant number). BiOp at 268. Put simply, FWS' calculation found that A = B + C - D. Deriso Decl., Doc. 396, at ¶ 78.
Dr. Deriso explains the two fundamental problems with using an additive model. First, a linear additive model can produce the biologically implausible result that the total absence of adults in one year (i.e., no mature smelt to mate and lay eggs) could still result in the model indicating the presence of newborn smelt the next year. Id. at ¶ 80. As Dr. Deriso explains, this nonsensical result is the product of basic
The second fundamental problem with a linear additive model is that it treats X2 as a purely "additive factor," meaning that an increase of X2 by one unit will always reduce the delta smelt population by a certain number, no matter how large or small the total population may be. Id. at ¶ 81. Dr. Deriso's critique implies that if changes in X2 are harmful to delta smelt, it is logical to expect that a change in X2 would affect a considerably higher absolute number of delta smelt in a population of 1,000,000 than in a population of 1,000. See id.
Use of a multiplicative stock-recruit model solves both of these deficiencies. Id. at ¶¶ 84-85. Multiplicative models are the textbook standard for modeling fish and other populations. See Deriso Decl., Doc. 396, at ¶ 43 n. 3 (citing a representative sample of studies making use of multiplicative stock-recruit models); see also, e.g., Bennett (2005) at 28-29 (using a multiplicative stock-recruit model for smelt abundance), AR 017031-017032; see also Hilborn Decl., Doc. 393, at ¶¶ 30-31. Multiplicative stock-recruit models are preferred because they can better reflect the biological realities and idiosyncrasies of the fish species of concern. See Deriso Decl., Doc. 396, at ¶ 83. This is because survival processes are inherently multiplicative: the fraction of individuals that survive to a given age will naturally be the product of all of the previous daily survival rates since birth. Id. Dr. Hilborn opined that the linear additive "approach is totally inconsistent with accepted practice in population dynamics." Hilborn Decl., Doc. 393, at ¶ 30.
Plaintiffs point to several record documents critical of FWS's modeling approach. For example, several Plaintiffs sent comment letters recommending the use of a logarithmic model. See AR 006406. In addition, the Peer Review Panel expressed general concerns with the linear model, stating "the model may be inappropriate for the data being used." AR 008819.
FWS noted in the BiOp that although the regression model works for 56 percent of the data points, the residuals are "not normally distributed." BiOp at 236. FWS continued, "[t]he pattern of the residuals suggests that some type of transformation of the data would help to define a better fitting model (Figure E-22). This analysis did not explore different data transformations." Id. Plaintiffs maintain that "exploring" different data transformations would not require FWS to conduct independent studies or to develop any new types of mathematical models, but rather would only require plugging existing data into the standard model used by fisheries biologists throughout the world. See Deriso Decl. ¶ 89.
Federal Defendants respond that this critique is much ado about nothing because, even though linear additive models can produce "biologically infeasible results" in some situations, the data set employed in the BiOp could not have created such a problem. See Newman Decl., Doc. 484, at ¶ 19 (explaining that "for the given range of FMWT index and X2 values, the model-fitted values remained positive" using the linear model). Dr. Newman opined that "linear models are often used as approximations to more realistic nonlinear models, and often over the range of covariate values of interest the nonlinear model may in fact be relatively linear." Id.
Here, Plaintiffs critique raises a scientific dispute among experts. Dr. Newman's declaration provides evidence that the linear model used in the BiOp is not totally inappropriate. See Newman Decl., Doc. 484, at ¶ 19. It requires refinement, which FWS said it did. Newman's declaration also points out that the re-analysis by Dr. Deriso, using Deriso's model of choice, yields a result that also exceeds the 0.05 threshold of statistical significance. Id.
Feyrer's 2007 analysis was published in a peer-reviewed scientific journal. Although the BiOp's Effect's Analysis Peer Review questioned the model, the reviewers did not recommend that the analysis or action be excluded; instead, that panel broadly supported implementation of the Fall X2 action, based in part on the analysis using the linear model, provided that the BiOp impose requirements for continued refinement of the analysis and implementation of the action by adaptive management. It is a close call. Absent agency bad faith, Plaintiffs have not established that this modeling dispute proves FWS violated the best available science standard.
c. DWR's Challenge to the BiOp's Choice of X2 Location.
RPA Component 3 (Action 4) requires the Projects to be operated to maintain X2 during the fall months at a location no greater than 74 km upstream from the Golden Gate Bridge following wet water years, and no greater than 81 km upstream following above normal water years. BiOp at 282-283. The rationale for this Component rests in large part on the Calsim II Dayflow comparison articulated in the Effects Analysis and discussed above. See BiOp 373-375, (explaining that the Effects section "clearly indicates there will be significant adverse impacts on X2"). As already determined, in the absence of calibration of the two models, the Calsim II to Dayflow comparison has the potential to introduce significant, if not overwhelming, bias to the analysis that the BiOp nowhere discussed or corrected. The X2 action must be remanded to the agency for further consideration.
DWR also argues the X2 action is unlawful for a different reason, arguing that "[a]lthough the BiOp explains why Action 4 is to be implemented only in certain water year types, see BiOp 373-75, it fails completely to explain or justify the requirement that X2 be held at the locations specified." Doc. 548 at 9. Federal Defendants have not identified any record evidence that provides such an explanation. This total lack of explanation violates the APA's requirement that FWS "examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). This failure also violates FWS's own Consultation Handbook implementing the ESA, which requires: "When a reasonable and prudent alternative consists of multiple activities, it is imperative that the opinion contain a thorough explanation of how each component of the alternative is essential to avoid jeopardy and/or adverse modification."
(4) Challenges to Turbidity Trigger.
In their opening brief, Plaintiffs argue that one of the underlying tenants of Component 1—the link between turbidity and smelt presence—has been "revealed as wholly arbitrary and capricious." Doc. 551 at 29. Action 1 of RPA Component 1 is triggered when "first flush conditions" occur, which are demonstrated by elevated river inflow and turbidity. BiOp at 280-81. The BiOp claims turbidity is an appropriate "on-ramp" indicator for Action 1, because delta smelt presence and densities are correlated with turbid water, i.e., more delta smelt are found in turbid water than in clearer water, and so as turbid waters move towards CVP/SWP pumps, delta smelt must as well, which warrants severe pumping restrictions. See BiOp at 150-51, 280-81, 329-30.
Plaintiffs argue that after issuing the disputed BiOp and the RPA, FWS "recanted its confidence in the usefulness of turbidity as such an indicator" in a December 2009 "Interim Federal Action Plan for the California Bay-Delta" ("Federal Action Plan") to which FWS was a signatory. Doc. 551 at 29. That Federal Action Plan, which was attached to the Declaration of Ronald Milligan
Id. (emphasis added). Plaintiffs complain that "FWS cannot simultaneously view turbidity as only a hypothetical indicator of delta smelt presence, and also as a scientifically defensible basis to develop an RPA with significant water costs. The two positions are fundamentally contradictory, resulting in an arbitrary RPA." Doc. 551 at 30.
Plaintiffs are mistaken. First, the turbidity indicator is not an automatic trigger for RPA Component 1:
BiOp at 281 (emphasis added).
FWS's reliance on turbidity as a potential indicator of smelt presence or movement was justified. The BiOp explains these physical conditions provide foraging, reproductive, and other behavioral and biological
The Federal Action Plan does not undermine this conclusion. As a threshold matter, the Plan is an extra-record document. Even if it were part of the record, it does nothing to call the FWS's reliance on turbidity into question. The quote from the Plan relied upon by Plaintiffs describes the "2 Gates Fish Protection Demonstration Project," a forthcoming project designed to examine whether turbidity can be physically manipulated through barge-mounted gate structures, in an effort to keep delta smelt away from the influence of the pumps so that export pumping can be increased for the benefit of Plaintiffs and other agricultural concerns. Federal Action Plan at 10. The Action Plan will result in FWS and Reclamation continuing to study turbidity. See Federal Action Plan at 10-11 (announcing the publicly funded installation of an additional "14 real-time turbidity sensors in the Delta"). That further study is called for does not undermine the record evidence supporting the use of turbidity as an indicator.
Plaintiffs do not address the turbidity trigger in their reply brief. Federal Defendants reliance on turbidity as one of several triggers for Action 1 was not arbitrary and capricious.
(5) Challenges to the Incidental Take Limit/Selective Use of Data.
Plaintiffs maintain Federal Defendants' failed to use the best available scientific data by selectively excluding data from certain parts of the BiOp, while including that data in other sections for different purposes. In particular, Plaintiffs maintain that such selective use of data tainted: (1) the analysis of the effects of OMR flows on delta smelt; and (2) the formulation of the incidental take statement.
a. FWS's Exclusion of Certain Data Points When Analyzing Entrainment.
On the impact of negative OMR flows on entrainment, the BiOp relies on a plot of the total number of salvaged adult delta smelt against OMR flows for the period from 1984 to 2007, BiOp at 164 (Figure S-8), and uses this plot to support the conclusion that entrainment of adult delta smelt rises with increasingly negative OMR
This is explained in the graph itself. Id. (1987, 1989-92, 1994, and 2007 were excluded because those years exhibited low (<<12ntu) average water turbidity during Jan-Feb at Clifton Court Forebay). The BiOp explains that turbidity is a potential indicator of smelt presence or movement. BiOp at 151. The BiOp presents defensible grounds for excluding these data points; Plaintiffs do not provide any evidence suggesting these exclusions were scientifically improper. There is no independent legal reason why FWS should be precluded from excluding certain data points if scientifically justified.
Under its mandate to utilize the best available science, FWS "cannot ignore available, relevant biological information." Conner v. Burford, 848 F.2d 1441, 1454 (9th Cir.1988); Kandra v. United States, 145 F.Supp.2d 1192, 1208 (D.Or.2001). Plaintiffs cite Sierra Club v. EPA, 346 F.3d 955, 961 (9th Cir.2003), for the proposition: "[t]he inclusion of data for one purpose and the exclusion of the same data for another, intimately related, purpose is impermissible" and "violates the best available science standard." Doc. 551 at 27. Sierra Club does not stand for such a proposition. The Sierra Club plaintiffs challenged EPA's conclusion under the Clean Air Act that exceedences of air pollution standards on two particular days in Imperial County, California were caused by transborder emissions from Mexico. 346 F.3d at 959-60. The Ninth Circuit recognized that "where, as here, a court reviews an agency action `involv[ing] primarily issues of fact,' and where `analysis of the relevant documents requires a high level of technical expertise,' we must `defer to the informed discretion of the responsible federal agencies.'" Id. at 961 (quoting Marsh, 490 U.S. at 377, 109 S.Ct. 1851). Such deference was not owed where the agency decision "is without substantial basis in fact." Id. EPA's decision was vacated after plaintiffs presented uncontested evidence, based on wind data, that the pollution at issue was not caused by transborder emissions. Id. at 961-62. Nowhere did the Ninth Circuit discuss or find that EPA included data for one purpose while excluding it for some other related purpose, nor did it evaluate or even mention the ESA's best available science standard. Plaintiffs' argument is without legal or factual support.
b. FWS's Use of Data to Examine the Relationship Between OMR Flows and Salvage and Exclusion of that Data from the Incidental Take Limit Analysis.
Plaintiffs next argue that FWS acted unlawfully by selectively using certain data when examining, the relationship between negative OMR flows and entrainment while excluding that same data from the calculation of the incidental take limit.
Where FWS concludes that "an action (or the implementation of any reasonable and prudent alternatives) and the resultant incidental take of listed species will not violate section 7(a)(2) ... the Service will provide with the biological opinion a statement concerning incidental take." 50 C.F.R. § 402.14(i)(1); see also 16 U.S.C. § 1536(b)(4); BiOp at 285-93. The Incidental Take Statement ("ITS") provides an exemption from the take prohibitions of ESA section 9 when the agency can demonstrate compliance with its terms and conditions. Consultation Handbook 4-47. It "specifies the impact, i.e., the amount or extent, of such incidental taking on the
The Consultation Handbook enumerates three criteria for ITS take: (1) the take must not be likely to jeopardize the continued existence of listed species or destroy or adversely modify designated critical habitat; (2) it must result from an otherwise lawful activity; and (3) it must be incidental to the purpose of the action. Consultation Handbook 4-48. An agency action can meet the first criterion if the RPA eliminates the likelihood of jeopardy to the species or adverse modification of designated critical habitat. Id. If FWS determines that full implementation of the RPA is not likely to result in jeopardy to the species or destruction or adverse modification of critical habitat, the ITS is its estimate of the number of individuals which will be taken once the RPA is implemented. If this number is exceeded, the agency must immediately reinitiate consultation with FWS. 50 C.F.R. § 402.14(i)(4).
FWS provided an ITS in the BiOp that sets forth the anticipated level of take that will occur as a result of CVP/SWP operations under the RPA. The BiOp employs an adaptive approach that utilizes a formula to compute the take limit each year using the prior Fall Midwater Trawl Index. BiOp at 287, 383-86. The ITS provides separate estimates of the amount of take anticipated for adult and larval/juvenile life stages of delta smelt upon full implementation of the RPA. Id.
BiOp Appendix C explains the methods FWS used to determine adult and juvenile take. To estimate the amount of take, FWS approximated salvage that would be expected under similar conditions, based upon recent historic data from the export salvage facilities.
The BiOp sets an incidental take limit for pre-spawning adult delta smelt based on "[t]he average [cumulative salvage index] value for [water years] 2006 to 2008...." BiOp at 287. According to FWS, the years 2006, 2007 and 2008 data were selected because "these years within the historic dataset best approximate expected salvage under RPA Component 1." Id. In contrast, FWS relied on a graph that
The BiOp explains why these years were used. In estimating conditions under which take would occur, FWS initially restricted itself to those years where active adaptive management was used to reduce entrainment and salvage was similar to that expected by RPA operations. See BiOp 385-86. Only two years are comparable to this scenario, 2007 and 2008. In order to increase sample size for what FWS knew was a rough estimate, the BiOp utilized the range 2006 to 2008 for adult smelt entrainment, and 2005-2008 for juvenile smelt entrainment. Goude Decl., Doc. 470, at ¶ 14; see BiOp at 382-96.
Plaintiffs rejoin that "[i]t was per se unreasonable for FWS to make use of the 2007 salvage data in calculating the ITS because it "best approximate[d] expected salvage under RPA Component 1, "after earlier rejecting the same data for Fig. B-13 because it was unrepresentative of salvage trends, and thus could not be used to calculate the OMR flow limits for RPA Component 1." Doc. 697 at 43.
However, such data was used for an entirely different purpose in these two scenarios. Figure B-13 was applied to examine the point at which negative OMR flows posed an unacceptable danger to the smelt. It was premised on a data set of more than 20 years. It was reasonable under those circumstances to exclude data that accounted for confounding factors, such as turbidity. FWS determined that the best way to calculate the ITS (which seeks to estimate take levels that will occur if the RPA Actions are implemented) was to look at years in which flow restrictions similar to those imposed by the RPA Actions were in place. This data set was far smaller, arguably justifying the inclusion of 2007.
Plaintiffs' argument that 2007 should have been treated as an "outlier" for purposes of the ITS is not accurate. As Federal Defendants explain:
Doc. 660 at 53-54.
Plaintiffs' assertion that the sample size of years was too small presents a scientific dispute. In preparing the ITS, FWS selected years for inclusion to replicate expected operations under the RPA. BiOp at 287. Due to limited data, FWS exercised scientific discretion to select the "most appropriate" years to estimate the level of incidental take.
As to the inclusion of 2005 in the calculation for the juvenile take limit, but not in the adult take limit, the BiOp states:
BiOp at 289. Federal Defendants also attempt to provide an explanation based on the record:
Doc. 660 at 53. These justifications do not explain why the approach used to select the years for the adult ITS (years in which conditions mimicked those under the RPA) was abandoned for criteria based upon low smelt abundance. FWS has not provided a rational explanation for this aspect of the ITS.
Plaintiffs argue the 2006 data point should be excluded from the ITS calculation for larval/juvenile smelt, because that year was "one of only three years in the entire multi-decade sample in which OMR flow was positive, resulting in almost zero salvage. See BiOp at 254." Doc. 551 at 32 (noting that the juvenile salvage index was 0.4 in 2006, compared with values of 23.4 for 2005, 65.1 for 2007, and 60.9 for 2008). Plaintiffs argue that the use of the 2006 data point to calculate the larval/juvenile ITS was unreasonable because it was entirely unrepresentative of normal salvage levels. Plaintiffs also point out that removing unrepresentative data points "significantly increases the take level." Deriso Decl., Doc. 396, at ¶ 105. Federal Defendants do not address this potential flaw in the logic underlying the juvenile/larval ITS. Because the juvenile/larval ITS must be remanded on other grounds, FWS should explain why 2006 was included.
c. DWR's Additional Challenges the ITS.
DWR contends the ITS is flawed because it depends on the
Based on known adverse water supply consequences of operating the Projects in a "constrained" manner, it is inexplicable that FWS did not provide a clear and rational explanation of how the ITS is set. A court, "cannot infer an agency's reasoning from mere silence," and "an agency's action must be upheld, if at all, on the basis articulated by the agency." See PCFFA, 426 F.3d at 1091. Because no such explanation or basis is provided, the entire ITS must be remanded for the required justifying explanation.
DWR further maintains that the BiOp incorrectly calculated the number of years in which the incidental take limit was historically violated. The BiOp states that the take estimate would be exceeded only five out of the fifteen years between 1993 and 2008. BiOp at 386. This conclusion results from an error. BiOp Table C-1, calculating the number of years the take estimate was exceeded, actually shows that this threshold would be exceeded not only in the five identified years, but in six more years, including two of the years (2006 and 2008) that FWS believes best approximate the future with the RPA fully implemented, a total of eleven out of the sixteen years. Id. FWS must correct these errors on remand.
(6) Challenges to the BiOp's Analysis of the Hydrodynamic Effects of the Projects.
Plaintiffs next challenge the BiOp's Project Effects Analysis as unlawful, because it: (1) bases the analysis of effects of Project Operations on the improper assumption that such operations "control" or "drive" hydrodynamic conditions in the Delta, and (2) then determines, relying on this assumption, that because CVP and SWP operations drive the hydrodynamic conditions in the Delta, those operations are the indirect cause of harm to delta smelt; when in truth a multitude of other causes ranging from predation to the adverse effects associated with invasive species contribute to the delta smelt's currently low population levels.
The BiOp explains:
BiOp at 202. Plaintiffs take issue with the logic and science of this opinion, asserting: (1) in reality, Project Operations do not "control" or "drive" hydrodynamic conditions in the Delta; and (2) hydrodynamic conditions in the Delta do not exert a "high degree of influence" over the other stressors on delta smelt and its habitat, which operate independently.
a. Project Operations as a Driver of Hydrodynamic Conditions in the Delta.
Plaintiffs complain that the BiOp "simply assumed that Project Operations drive hydrodynamics thereby exacerbating the effects of other causes of harm on the delta smelt," although the contrary is established by the record. Doc. 551 at 53. Plaintiffs maintain that Project Operations do not control precipitation patterns, which are the real drivers of inflow to the Delta watershed. Id.
CALFED scientists concluded in a 2008 Report:
CALFED Science Program, The State of Bay-Delta Science 2008 42-43 (2008), Doc. 199 ("State of Bay-Delta Science").
Wim J. Kimmerer, Open Water Processes of the San Francisco Estuary: From Physical Forcing to Biological Responses, 2(1) San Francisco Estuary & Watershed Science 15 (2004), AR 18717-18718. Indeed, precipitation patterns are highly variable. See State of Bay-Delta Science at 40-42 ("precipitation patterns are highly
The first paragraph of the Effects analysis states that "hydrodynamic conditions in the Delta ... are controlled to a large extent by CVP and SWP [pumping] operations," and that other sources of water diversion "when taken together do not control hydrodynamic conditions throughout the Delta to any degree that approaches the influence of the Banks and Jones export facilities." BiOp at 202. This apparent inconsistency with the science must be considered in light of the BiOp's next page, which explains that "every day the system is in balanced conditions, the CVP and SWP are  primary driver[s] of delta smelt abiotic and biotic habitat suitability, health, and mortality." BiOp at 203. The BiOp does not assume that pumping operations continuously drive hydrodynamic conditions; rather, Project operations primarily drive hydrodynamic conditions when the system is in balance.
The scientific literature does a side-by-side analysis. Kimmerer (2004) finds that "most of the interannual variability in flow patterns in the estuary is due to variability in precipitation ... due to the overwhelming effect of high flow events." AR 18718. He describes the following impacts of the CVP-SWP:
The BiOp recognizes that "delta smelt abundance trends have been driven by multiple factors, some of which are affected or controlled by CVP/SWP operations and others that are not. Notably, the BiOp acknowledges the decline of delta smelt cannot be explained solely by the effects of CVP/SWP operations." BiOp at 203. The BiOp's conclusions about the cause and effect of other stressors are ambiguous. Plaintiffs' quest for precision in delinking Project operations as the primary driver of smelt decline is understandable in view of the ambiguity of the BiOp.
b. Treatment of Other Stressors.
Plaintiffs complain that the BiOp attributes a wide variety of causes of harm to delta smelt and its habitat—such as aquatic macrophytes, predators, competition, toxic blue-green algae, and contaminants— to continued Project Operations, without any meaningful explanation. See BiOp at 182-188, 202-203.
The BiOp concludes:
BiOp at 277.
Plaintiffs argue that the BiOp makes no rational connection between the other causes of harm to the smelt and their habitat and continued Project Operations.
Table 4.1 New Understanding of the Delta Ecosystem ---------------------------------------------------------------------------- New Paradigm Old Paradigm ---------------------------------------------------------------------------- 1. Uniqueness of the San Francisco Estuary The San Francisco Estuary The San Francisco Estuary has complex tidal hydrodynamics works on the predictable and hydrology. model of East Coast estuaries Daily tidal mixing has more with gradients of influence on the ecology of temperature and salinity the estuary than riverine controlled by outflow. outflows, especially in the Freshwater outflow is the western and central Delta. most important hydrodynamic Conditions that benefit force. If the estuary striped bass (an East Coast is managed for striped species) do not necessarily bass, all other organisms, benefit native organisms. and especially other fish, will benefit. ---------------------------------------------------------------------------- 2. Invasive Species Alien species are a major Alien (nonnative) species and growing problem that are a minor problem or significantly inhibits our provide more benefits than ability to manage in support problems. of desirable species. ---------------------------------------------------------------------------- 3. Interdependence Changes in management of The major parts of San one part of the system Francisco Estuary can be affect other parts. All are managed independently of part of the estuary and can one another. The Delta is change states in response a freshwater system, to outflow and climatic conditions. Suisun Bay and Marsh are Floodplains are of a brackish water system, major ecological importance and San Francisco Bay is a and affect estuarine function. marine system. Floodplains Suisun Marsh is an such as the Yolo By-pass integral part of the estuary have little ecological ecosystem and its future is importance. Suisun Marsh closely tied to that of the is independent of the rest Delta. of the estuary ---------------------------------------------------------------------------- 4. Stability The Delta will undergo dramatic The Delta is a stable geographic changes in the next entity in its present 50 years as its levees fail configuration. Levees can because of natural and maintain the Delta as it is. human-caused forces such Any change in the Delta as sea level rise, flooding, will destroy its ecosystem. climate, and subsidence. A Agriculture is the best use Delta ecosystem will still for most Delta lands. exist, with some changes benefiting native species. Agriculture is unsustainable in some parts of the Delta. ---------------------------------------------------------------------------- 5. Effects of Human Activities Pumping in the Delta is an Pumping in the southern important source of fish Delta is the biggest cause mortality but only one of of fish declines in the estuary. several causes of fish declines. Fish entrainment at Entrainment of fish power plants is a minor at the power plants is potentially problem. Changes in a major source of ocean conditions have no mortality. Changes in effect on the Delta. ocean conditions (El Niño Hatcheries have a positive events, Pacific Decadal or no effect on wild populations Oscillation, ocean fishing, of salmon and steel-head. etc.) have major effects on Chronic toxicants the Delta. Hatcheries (e.g., heavy metals, persistent harm wild salmon and pesticides) are the steelhead. Chronic toxicants major problems with toxic continue to be a problem, compounds in the estuary. and episodic toxic events from urban and agricultural applications are also a major problem. ----------------------------------------------------------------------------
AR 19305-306. The fifth paradigm shift finds that Delta Pumping is an "important source of fish mortality but only one of several causes of fish declines." AR 019306. This finding is further supported by the Interagency Ecological Program's conceptual model that describes observed pelagic fish declines in the Delta and recognizes numerous sources of harm to the species including contaminants, disease, toxic algal blooms, climate change, predation, entrainment in diversions, and limited food availability, limited food co-occurrence with the species, and poor food quality. See Randall Baxter et al., Pelagic Organism Decline Progress Report: 2007 Synthesis
(1) Predation Analysis.
Plaintiffs describe the BiOp's predation as a purportedly flawed attribution of another stressor to Project Operations. The BiOp generally acknowledges that striped bass prey on the delta smelt but concludes that "[i]t is unknown whether incidental predation by striped bass (and other lesser predators) represents a substantial source of mortality for delta smelt." BiOp at 183. The BiOp does not include any estimates of the effect of predation on the delta smelt population. Such information was available. The Conservation Plan for DFG's Striped Bass Management Program ("Conservation Plan"), which was submitted to FWS as part of an application for an incidental take permit, states: "[d]espite the low incidence of delta smelt in striped bass stomachs, the year-round overlap in distribution of delta smelt and striped bass results in an estimated annual consumption of about 5.3% of the delta smelt population by a striped bass population of approximately 765,000 adults." Doc. 181-1 at 32 (emphasis added). The Conservation Plan explains that FWS and DFG "have agreed that a predation rate of 5.3% of the annual delta smelt population is a reasonable estimate." Id. at 33. FWS issued an incidental take permit to DFG on the basis of this striped bass predation estimate. There is question whether this underestimates the effect on delta smelt of bass predation. See First Amended Complaint, Coalition v. McCamman, 1:08-cv-00397 OWW GSA, Doc. 46.
FWS need not include every piece of available information regarding other stressors in the BiOp. Kempthorne, 506 F.Supp.2d at 367 ("If FWS was required to consider and address every new piece of information it received prior to publication of its decision, it would be effectively impossible for the agency to complete a biological opinion."). However, FWS cannot ignore relevant information pertaining to a major source of mortality to the species, particularly when that information is decidedly contrary to BiOp findings. It is not clear from the record whether 5.6% mortality should be considered significant. In related contexts, mortality of 1% has been used as an incidental take limit, see Findings of Fact and Conclusions of Law Re Existence of Irreparable Harm, PCFFA v. Gutierrez, 606 F.Supp.2d at 1220 (noting that incidental take limit for winter-run Chinook salmon is set at two percent of the estimated number of juveniles produced each year), suggesting that such small percentages may be significant enough to merit discussion. The 5.3% figure may be partially attributable to Project operations. As the BiOp explains, there are high rates of predation in Clifton Court Forebay, BiOp 160-161, 209, but the contribution of striped bass predation to this mortality is not articulated. The BiOp erroneously failed to consider available information regarding the magnitude of striped bass predation on delta smelt, with the likely result of erroneously attributing to the Projects, impacts independent of Project Operations.
(2) Aquatic Macrophytes.
The BiOp discusses aquatic macrophytes:
BiOp at 182-183. General discussions of Egeria densa are included in the Critical Habitat section of the BiOp. BiOp at 196, 198, 201. Discussion of PCE #2 explains:
BiOp at 198.
The BiOp concludes:
BiOp at 277. Although a connection may exist, the record does not reflect any discussion, nor have the parties pointed to any study, connecting "seasonal flushing
FWS makes no connection whatsoever between microcystis, large blooms of toxic blue-green algae, and continued CVP and SWP operations. See BiOp at 186. In a discussion regarding the Vernalis Adaptive Management Plan (VAMP) period,
BiOp at 224. The BiOp does not analyze the effect that this asserted increased exposure to other stressors has on the delta smelt, or how it is caused by Project Operations; rather, FWS simply concludes without support that this effect buttresses a determination that the proposed action will jeopardize the delta smelt.
It is undisputed that numerous stressors, including ammonia and other toxics, food limitation, predation, the introduction of non-native species and other factors, all have adverse impacts to delta smelt. See e.g., BiOp at 182-84 (discussing other stressors). Yet, the BiOp concludes that Project Operations are "a
(7) Indirect Effects Analysis.
Plaintiffs assert that the BiOp inappropriately categorizes adverse effects on delta smelt from limited food supply, invasive species, and contaminants as "indirect effects" caused by Project Operations. The Joint Consultation Regulations promulgated by FWS and NMFS define: "[i]ndirect effects are those that are caused by the proposed action and are later in time, but still are
51 Fed. Reg. at 19,933.
Shortly after adoption of the ESA regulations, the Ninth Circuit confirmed "`[t]he reasonably certain to occur' standard applies to `indirect effects ... caused by the proposed action.'" Sierra Club v. Marsh, 816 F.2d 1376, 1388 (9th Cir.1987); see also Ariz. Cattle Growers' Ass'n v. FWS, 273 F.3d 1229, 1243 (9th Cir.2001) (invalidating several incidental take statements regarding grazing and effects on fish because "it would be unreasonable for [FWS]... to impose conditions on otherwise lawful land use if a take were not reasonably certain to occur as a result of that activity"); Ctr. for Biological Diversity v. U.S. Dept. of Hous. & Urban Dev., 541 F.Supp.2d 1091, 1100-01 (D.Ariz.2008) (dismissing a suit alleging federal agencies had violated the ESA by failing to analyze the indirect effects of providing federal funding to local development projects, concluding that the link between such financial assistance and groundwater depletion that could harm listed species was "too attenuated" to meet the standards of 50 C.F.R. § 402.02). "[T]he mere potential for harm ... is insufficient" to meet the "reasonably certain to occur" standard. Ariz. Cattle Growers' Ass'n, 273 F.3d at 1246. Other causes must be addressed applying this standard.
a. Effect of Project Operations on Delta Smelt Food Supplies.
The BiOp claims that one of "three major seasonally occurring categories of effects" on delta smelt is "entrainment of Pseudodiaptomus forbesi
The relevant section of the effects analysis provides:
BiOp at 228. These observations show that P. forbesi from the southern Delta are an important source of summer food supply to delta smelt in the lower salinity zone ("LSZ"), and that Project Operations (i.e., export pumping) prevent P. forbesi in the South Delta from flowing to the LSZ during that time, causing a reduction in the density of P. forbesi that subsequently causes deleterious effects to delta smelt.
Federal Defendants are correct that nothing in the ESA requires FWS to rule out all other potential factors that may or may not play a role in the ecosystem under analysis. See Doc. 660 at 58. However, the ESA does require the agency to evaluate the impacts of the proposed action, and make a determination whether the proposed action is likely to have direct and indirect effects on the species. 50 C.F.R. § 402.02 (defining "jeopardize the continued existence of" to means "to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species."). Plaintiffs argument is simply that "there was no
Plaintiffs' central complaint is that in evaluating the indirect effect of Project operations on P. forbesi, FWS used data from a few Suisun Bay sampling stations to represent the entire lower salinity zone, even though the low salinity zone occurs outside Suisun Bay as well.
Plaintiffs also complain that the BiOp contains no
Although nothing in the ESA mandates the use of quantitative analyses per se, the Peer Review's critique of the P. forbesi analysis cannot be separated from FWS's abandonment of its quantitative analysis.
b. Pollution and Contaminants
The BiOp claims "[r]earing habitat in the South Delta may also be impacted indirectly through increases in contaminant concentrations." BiOp at 242. In assessing Project effects to critical habitat, the BiOp states "[t]he contaminant effects may be generated or diluted by flow depending on the amount of flow, the type of contaminant, the time of year, and relative concentrations." BiOp at 240.
Plaintiffs argue "[g]eneral statements like this do not comport with ESA's requirements for attributing indirect effects to an action." Doc. 661 at 50. Plaintiffs contend: "[t]o meet ESA's regulatory standard for indirect effects," requiring such indirect effects be "reasonably certain to occur" FWS must "support these general hypotheses with discussion and use of scientific data showing":
Id. Plaintiffs do not cite any specific statute, regulation, or case that requires such specific findings before an impact is a sufficient indirect effect. The record must reflect that contaminant-related impacts indirectly caused by Project Operations are "reasonably certain" to occur. It is undisputed that contaminants are not introduced by the Projects, rather by others conducting municipal, industrial, and agricultural (runoff) activities.
FWS provided a qualitative discussion of the impacts of pollutants and changed Delta hydrodynamics resulting from Project operations upon the smelt:
BiOp at 186-188.
It is not clear how the BiOp or any other document in the record links the impacts of contaminants to Project Operations. The BiOp does link the position of X2 to the extent of available delta smelt habitat, suggesting that a more confined habitat "may increase" the effects of contaminants:
BiOp at 234. The Effects on Critical Habitat section states:
BiOp at 240.
FWS may only count indirect effects as effects of the action if they are "reasonably certain to occur." FWS's contaminants analysis does not demonstrate it has complied with this requirement. It must be done.
(8) Critical Habitat as Independent Basis for RPA.
Federal Defendants argue that, even if Plaintiffs demonstrate that the BiOp's "jeopardy" findings were arbitrary and capricious, the Court should nevertheless deny Plaintiffs' motion because the RPA is necessary to avoid adverse modification of the delta smelt's critical habitat. Doc. 660 at 55-58. The ESA requires, once FWS finds the proposed agency action will result in "jeopardy or adverse modification [of critical habitat]... the Secretary shall suggest those reasonable and prudent alternatives which [it] believes would not violate [Section 7(a)(2)] and can be taken by the Federal agency or applicant in implementing the agency action." 16 U.S.C. § 1536(b)(3)(A). Avoiding adverse modification of critical habitat is an independent statutory basis for promulgation of an RPA. Federal Defendants maintain that, in light of the statutory mandate to avoid both jeopardy and adverse modification, Plaintiffs must make a separate showing, independent of or in addition to their jeopardy arguments, that the BiOp's findings on critical habitat are also arbitrary and capricious. This is true in part. To support a finding that the adverse modification conclusion is arbitrary and capricious, Plaintiffs must demonstrate either that the underlying critical habitat analysis was independently flawed or that the critical habitat analysis was entirely dependent on flawed aspects of the jeopardy analysis. Whether or not the RPA and its constituent Actions are erroneous is a separate question.
The BiOp makes findings concerning the impact of export pumping on delta smelt critical habitat, see BiOp at 190-202; 239-244, and concludes:
Plaintiffs respond to Federal Defendants' argument that the critical habitat analysis is actually flawed in a number of ways:
Doc. 697 at 64-71:
a. Identification of a Threshold For Adverse Modification/Explanation of How Any Alleged Alteration To Critical Habitat Would Exceed that Threshold.
The BiOp's critical habitat findings 1 and 2 state that "appropriate" habitat elements are "essential" and have been "degraded... to the extent that their co-occurrence at the appropriate places and times is insufficient to support successful delta smelt recruitment at levels that will provide for the species' conservation." BiOp at 278. However, Plaintiffs complain that the BiOp does not explain the extent of co-occurrence of habitat elements that is necessary for conservation of delta smelt; the magnitude of the claimed degradation of this co-occurrence that is attributable to Project operations; or why that effect renders the habitat elements "insufficient" to support the species' recovery. Plaintiffs argue, without such analysis there is no basis for FWS to conclude that habitat changes caused by Project operations will result in adverse modification of critical habitat.
Plaintiffs cite Gifford Pinchot, 378 F.3d at 1074, and NWF v. NMFS II, 524 F.3d at 932 & n. 10, for the principle that FWS must identify a threshold for adverse modification and assess and explain whether the magnitude and extent of any claimed effects to critical habitat reach that threshold. These cases do not support Plaintiff's argument. Gifford Pinchot rejected FWS's interpretation of "adverse modification" in a manner that only triggered an adverse modification finding where there is "an appreciable diminishment of the value of critical habitat for both survival and recovery." Id. at 1069. After rejecting FWS's rationale for applying the regulation, the Ninth Circuit reasoned that the various biological opinions at issue could nevertheless be found valid if they actually evaluated the impact to recovery. The Gifford Pinchot plaintiffs raised concerns about FWS's complete failure to address the issue of recovery in that biological opinion's critical habitat analysis. The Appeals Court specifically found that FWS detailed the percentage loss of critical habitat but did not discuss the specific impact of that loss on recovery, rendering the BiOp insufficient. 378 F.3d at 1074.
Following Gifford Pinchot, NWF v. NMFS II held that NMFS acted arbitrarily and capriciously by failing to analyze the impacts of dam operations on the recovery value of critical habitat. 524 F.3d at 932. NMFS' argument "that it `implicitly' analyzed recovery in its survival analysis" was rejected as a "post hoc justification," because a court cannot consider "an analysis that is not shown in the record." Id. at 932 n. 10 (internal citations and quotations omitted). Plaintiffs do not directly challenge the BiOp's recovery analysis; rather, they argue that the BiOp should have set a "threshold" for adverse modification. Nothing in Gifford Pinchot or NWF v. NMFS II requires FWS to set a "threshold" for adverse modification.
Butte Environmental Council v. U.S. Army Corps of Engineers, 607 F.3d 570, 582-83 (9th Cir.2010), suggests exactly the opposite. Butte upheld FWS's determination that destruction of a very small percentage (less than 1%) of designated critical habitat would not adversely modify the species' critical habitat. Relevant here is the Ninth Circuit's rejection of a demand that FWS address the rate of loss of critical habitat, finding that nothing in the statute or regulations requires FWS to perform such a calculation. Id.
Plaintiffs extensively discuss the BiOp's critical habitat analysis to attempt to demonstrate the BiOp does not identify a threshold for adverse modification or what standard for adverse modification FWS applied. See Doc. 697 at 66-69. Plaintiffs criticize the individual critical habitat findings for failing to clearly describe the effects of project operations on the quantity or quality of the individual habitat elements.
This disassembly, focusing on the critical habitat conclusion, does not consider the BiOp as a whole. The BiOp's adverse modification determination relies on four components: "(1) the Status of Critical Habitat ...; (2) the Environmental Baseline...; (3) the Effects of the Action ...; and (4) Cumulative Effects...." BiOp at
In the discussion of PCE # 2 (water quality, including abiotic elements), the BiOp explains how this PCE's condition is substantially degraded by Project operations. FWS found that project operations cause "[p]ersistent confinement of the effective spawning population" and otherwise "adversely affect" turbidity, "reproductive success," the availability of prey, and the exposure of delta smelt to contaminants and to localized catastrophic events. Id. at 197. Plaintiffs' omnibus complaint that the critical habitat section entirely lacks analytical structure is overbroad.
b. Reliance On Assumptions Of Indirect Effects Without Providing Evidence That These Indirect Effects Are Reasonably Certain To Occur.
Plaintiffs argue BiOp critical habitat finding 3(a), BiOp at 278, is flawed as unsupported by any analysis verifying that Project-induced changes to Delta hydrodynamics interact with other abiotic factors to exacerbate the effects of those factors on the delta smelt's critical habitat. Plaintiffs assert the BiOp's conclusory assertions do not explain how described indirect effects to critical habitat are reasonably certain to occur. See 50 C.F.R. § 402.02 (requiring that indirect effects be reasonably certain to occur).
The BiOp concludes the impact of Project Operations on PCE 2 (Water), "[a]s described in the Effects Section, the CVP/SWP alter the hydrologic conditions within spawning habitat throughout the spawning period for delta smelt by impacting various abiotic factors including the distributions of turbidity, food, and contaminants." BiOp at 239; see also BiOp at 241 ("In addition, pumping at Banks and Jones can alter flows within the Delta. This results in a corresponding alteration of larval and juvenile transport."); BiOp at 242 ("As described in the Effects Section, the CVP/ SWP alter the hydrologic conditions within rearing habitat throughout the spawning period for delta smelt by impacting various abiotic factors including distributions of turbidity, food, and contaminants."); id. ("Pumping at Banks and Jones alters flows within the Delta. As described in the Effects Section, negative flows can result in an increased risk of entrainment when rearing habitat includes the South Delta."); BiOp at 243 ("As stated previously, the CVP/SWP alters the extent and location of the LSZ by modifying both the Sacramento and San Joaquin river flows which reduces habitat quality and quantity").
The BiOp links export pumping and contaminant effects:
BiOp at 239. Although, the BiOp supports the conclusion that the Projects drive hydrodynamics
c. Reliance on Analysis Of Entrainment and X2 in Support of the Adverse Modification Determination.
Plaintiffs opening brief argued: "the BiOp's determination that proposed Project Operations will adversely modify critical habitat rests upon the same defective Project Effects Analysis that led FWS to its determination that Project Operations would jeopardize the delta smelt." Doc. 551 at 63. The critical habitat conclusion section does explicitly rely on conclusions reached in the effects analysis' regarding entrainment and the movement of X2. For example, Critical Habitat conclusion #3 provides:
BiOp at 278.
The BiOp's general conclusion that Project Operations increase delta smelt entrainment with resulting population-level impacts within year classes is valid. It is, rather, the BiOp's quantitative conclusions regarding the exact negative OMR flow ranges that are unfounded. FWS did not err by incorporating this general conclusion in its Critical Habitat conclusion.
As for the inclusion of the finding that Project Operations alter the natural pattern of seasonal movement of the Low Salinity Zone ("LSZ"), this underlying conclusion from the Effects section is not supported by the record, because it is based at least in part on the invalid quantitative analysis using the Calsim II to Dayflow comparison. This aspect of the critical habitat analysis is without record support. These areas must be addressed on remand.
(9) Discretionary v. Nondiscretionary Actions.
Plaintiffs complain that the BiOp's Project Effects analysis was "tainted" because it does not distinguish between discretionary and non-discretionary actions. Doc. 551 at 61-63. National Association of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007), held that ESA § 7's consultation requirements do not apply to non-discretionary actions. Where an agency is
However, Home Builders
B. Application of the RPA Regulations.
Plaintiffs next argue that, in adopting the RPA, Federal Defendants did not undertake the analysis required by Section 7 and its Joint Consultation Regulations. Doc. 551 at 65-79. Under the ESA, if a biological opinion concludes that a proposed agency action will cause jeopardy to a listed species or result in the destruction or adverse modification of its critical habitat, "the Secretary shall suggest those reasonable and prudent alternatives which he believes would not violate subsection (a)(2) and can be taken by the Federal agency or applicant in implementing the agency action." 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(h)(3). The Joint Consultation Regulations define such reasonable and prudent alternatives as follows:
50 C.F.R. § 402.02; see also 51 Fed.Reg. at 19,958; 50 C.F.R. § 402.14(g)(5); Home Builders, 551 U.S. at 652, 127 S.Ct. 2518 (Section 402.02 defines what qualifies as an RPA). Under this definition, an RPA must: (1) be consistent with the purpose of the underlying action; (2) be consistent with the action agency's authority; (3) be economically and technologically feasible; and (4) avoid the likelihood of jeopardy to the species or adverse modification of its critical habitat. 50 C.F.R. § 402.02; see also 16 U.S.C. § 1536(b)(3)(A); Greenpeace v. Nat'l Marine Fisheries Serv., 55 F.Supp.2d 1248, 1264 (W.D.Wash.1999).
(1) FWS Did Not Explicitly Analyze Any of the Four Factors in the BiOp.
It has already been determined that "the BiOp does not explicitly discuss the
An October 15, 2009 Decision rejected Plaintiffs' earlier argument that this analysis must be included "on the face" of the BiOp. See Doc. 354, 666 F.Supp.2d at 1154. However, the question of whether FWS properly promulgated the RPA was left to be "decided on the basis of the entire record." Id. at 1159. Of the four requirements, "[j]eopardy has been found to be the `guiding standard' for determination of RPAs." Id. at 1149 (citing Greenpeace 55 F.Supp.2d at 1268). Whether and how the record must demonstrate compliance with § 402.02 is a separate question.
(2) Compliance with § 402.02.
Plaintiffs allege that FWS violated the APA because the administrative record contains no meaningful analysis related to the first three requirements of § 402.02, and that, while FWS undertook some analysis regarding whether its RPA would avoid jeopardizing delta smelt (the fourth factor described in § 402.02), that analysis is flawed because it was not based upon the best available science.
a. Jeopardy Factor (Fourth Factor).
Plaintiffs maintain that FWS violated the ESA by adopting its RPA without providing a reasoned analysis regarding how the various RPA actions will avoid the likelihood of jeopardizing the delta smelt or adversely modifying its critical habitat. The Consultation Handbook directs that "[w]hen a reasonable and prudent alternative consists of multiple activities, it is imperative that the opinion contain a thorough explanation of how each component of the alternative is essential to avoid jeopardy." Consultation Handbook at 4-43. Plaintiffs do not dispute that the BiOp contains extensive discussion of the need for the RPA components. Rather, Plaintiffs contend that the RPA violates § 402.02 because that discussion is not based on the best available science.
The § 402.02 requirements and the best available science requirement are separate. It is undisputed that both the BiOp and its RPA must be based on the best available science, but a violation of that requirement does not necessarily violate § 402.02. Whether each part of the jeopardy analysis relies on the best available science is discussed above. Section 402.02 does not provide an independent statutory basis for imposing liability upon FWS for failing to comply with the best available science requirement. Plaintiffs' motion for summary judgment on this ground is DENIED; Federal Defendants' and Defendant-Intervenors' is GRANTED.
b. Non-Jeopardy Factors (Factors One Through Three).
It is undisputed that the BiOp contains no explicit discussion of the first three factors: (1) consistency with the purpose of the underlying action; (2) consistency with the action agency's authority; and (3) economic and technological feasibility. Plaintiffs insist that the ESA and its implementing regulations require that the record contain explicit "analyses" of each of the four factors. As authority, Plaintiffs invoke general principles of Administrative
It is undisputed that there is no explicit analysis anywhere in the record of the three non-jeopardy factors. Federal Defendants and Defendant-Intervenors dismiss this fact, arguing (1) that no such explicit analysis is required by law and (2) that satisfaction of all three factors is so obvious that explicit analysis is unnecessary. See Doc. 660 at 70-72; Doc. 661-3 at 35-38.
Many of the cases upon which the parties now rely were discussed in the October 15, 2009 Decision:
Doc. 354, 666 F.Supp.2d at 1154-59 (footnotes omitted, emphasis in original). Plaintiffs' argument that the three non-jeopardy factors must be explicitly analyzed on the face of the BiOp was rejected, but the question of how the three non-jeopardy factors must be treated elsewhere
Id. at 1154.
Defendants acknowledge that the agency must explicitly analyze the jeopardy factor, but claim that it is permissible for the agency not to address the non-jeopardy factors anywhere in the administrative record. To accept Defendants' view would be to abdicate the judicial review function. Even though the jeopardy factor is the "guiding standard" for the adoption of an RPA, see Greenpeace, 55 F.Supp.2d at 1268, this does not eviscerate the other three § 402.02 factors. Greenpeace rejected the contention that the "economically and technologically feasible" language required the agency to "balance the benefit to the species against the economic and technical burden on the industry before approving an RPA," because such a conclusion would be inconsistent with the purposes of the ESA under TVA v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). Id. Greenpeace confirms that 50 C.F.R. § 402.02 "contains four distinct requirements for any valid RPA," id. at 1264, and that FWS "must come up with [RPAs] that are consistent with the purposes of the underlying action and the action agency's authority, that are economically and technologically feasible, and which avoid the likelihood of jeopardy and adverse modification." Id.
According to PCFFA, a court should "sustain an agency action if the agency has articulated a rational connection between the facts found and the conclusions made." 426 F.3d at 1090 (citing Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43, 103 S.Ct. 2856).
Id. Here, the agency has articulated absolutely no connection between the facts in the record and the required conclusion
Defendants offer a number of post hoc rationalizations for the RPA. Defendant-Intervenors argue that the record demonstrates the RPA can be implemented in a manner consisted "with the intended purpose of the action" and "within the scope of the Federal agency's legal authority and jurisdiction," because, by letter dated December 15, 2008, the Bureau "provisionally accept[ed]" most portions of the RPA and stated that Components 3 and 4 "both need additional review and refinement before Reclamation will be able to determine whether implementation of these actions by the Projects is reasonable and prudent." NRDC v. Kempthorne, 1:05-cv-01207 OWW GSA, Doc. 767-1. Defendant-Intervenors conclude that the Bureau has made no determination that the RPA is inconsistent with the purpose of the action or with its legal authority and jurisdiction. Doc. 661-3 at 38. They suggest as to economic and technological feasibility, that these requirements
But, the record provides
51 Fed. Reg. 19,926, 19,952 (June 3, 1986). Even if, arguendo, the RPA is consistent with the multiple purposes of the action
How the appropriation of water for the RPA Actions, to the exclusion of implementing less harmful alternatives, is required for species survival is not explained. The appropriate remedy for such a failure to explain is remand to the agency. See Sears Sav. Bank v. Federal Sav. and Loan Ins. Corp. 775 F.2d 1028, 1030 (9th Cir. 1985) ("If the administrative record is inadequate to explain the action taken, the preferred practice is to remand to the agency for amplification."). Plaintiffs' motion for summary judgment that FWS violated § 402.02 is GRANTED; Defendants' cross-motion is DENIED.
c. There is no Procedural Requirement that FWS Accept, Consider, and/or Address Comments Regarding the BiOp or its RPA.
Neither the ESA nor its implementing regulations require an opportunity for public comment or that FWS respond to any comments received. See Kandra v. United States, 145 F.Supp.2d 1192, 1209 n. 8 (D.Or.2001) ("as the government correctly pointed out during oral argument, the ESA does not require public review or input during the consultation process"); Ctr. for Biological Diversity v. Kempthorne, 2008 WL 659822, *7 (D.Ariz. Mar. 6, 2008) ("Biological opinions, unlike DPS findings, are not subject to notice and comment rulemaking procedures pursuant to the ESA."). Plaintiffs' suggestion that FWS violated the ESA by "ignoring" comments on the draft BiOp is legally unsustainable. Plaintiffs' motion on this ground is DENIED; Defendants' cross-motion is GRANTED.
C. Stewart & Jasper Orchards' Argument Re: Reasonable and Prudent Measures.
Stewart & Jasper Orchards, et al., ("Stewart & Jasper") allege that FWS's failure to consider the economic impacts of implementing the reasonable and prudent measures ("RPMs") is arbitrary and capricious. Doc. 551 at 68 n. 24. Whenever FWS offers reasonable and prudent alternatives to avoid jeopardy to a species, it must also specify "those reasonable and prudent measures that [FWS] considers necessary or appropriate to minimize" incidental taking of the species. 16 U.S.C. § 1536(b)(4)(C)(ii). Stewart & Jasper argues that by formulating RPMs that it believes "are necessary and appropriate to minimize the effect of the proposed action on the delta smelt," without "provid[ing] a statement that allows for Reclamation to take into consideration the economic impacts of implementing the RPMs," see BiOp at 294, FWS has allegedly "arbitrarily left open the question of whether the RPMs are in fact reasonable, necessary, and appropriate in light of the harm that their implementation will cause." Doc. 551 at 68 n. 24.
This argument is unsupported in law. Unlike 50 C.F.R. § 402.02's definition of a RPA, which provides that RPAs must be "economically and technologically" feasible,
50 C.F.R. § 402.02. Even if the definition of RPM included an economic feasibility requirement, this language does not require that FWS "balance the benefit to the species against the economic and technical burden on the industry before approving an RPA," because such a conclusion is inconsistent with the purposes of the ESA under TVA v. Hill. Greenpeace, 55 F.Supp.2d at 1267. Stewart & Jasper's motion for summary judgment regarding the lawfulness of the RPMs for failure to consider economic effects is DENIED; Federal Defendants and Defendant-Intervenors' cross-motions are GRANTED.
D. Stewart & Jasper, et al.'s, Argument that FWS Illegally Arrogated Authority to Itself Over Bureau of Reclamation and California Department of Water Resources Operations.
The Stewart & Jasper Plaintiffs raise a novel argument that FWS "illegally arrogated" authority to itself over Reclamation and DWR, by "claim[ing] the ability to oversee [Project operations] indefinitely," rather than "advis[ing] Reclamation and DWR on how to avoid jeopardizing the delta smelt and destroying or adversely modifying its critical habitat." Doc. 551 at 80:
Stewart & Jasper argue that this is unlawful because the ESA "does not give the FWS the power to order other agencies to comply with their requests or to veto their decisions." Id. (citing Sierra Club v. Marsh, 816 F.2d 1376, 1386 (9th Cir. 1987)). The law is clear that FWS has no such authority, nor can FWS, as consulting agency, act ultra vires to usurp the operational authority of the Bureau and DWR over the Projects. The November 13, 2009 Decision found: "the action agency retains the ultimate responsibility for deciding whether, and how, to proceed with the proposed action after Section 7 consultation." Doc. 399, Mem. Decision re Cross-Motions for Summary Judgment on NEPA Issues, 686 F.Supp.2d at 1040 n. 7. Even if FWS issues an RPA with specific requirements following a jeopardy or adverse modification finding, the action agency remains free to disregard such requirements, and FWS has no enforcement authority absent an ESA violation. Reclamation and DWR have provisionally adopted the RPA and have implemented many of its Actions, but the record does not show FWS employees have "claimed the ability to oversee these agencies indefinitely." Doc. 551 at 80.
Stewart & Jasper's motion for summary judgment regarding FWS's alleged unlawful arrogation of authority is DENIED; Federal Defendants and Defendant-Intervenors' cross-motions are GRANTED.
E. Information Quality Act Claim.
Family Farm Alliance ("FFA") Plaintiffs claim that Federal Defendants did not apply the IQA and its implementing guidelines in preparing and disseminating the BiOp.
The IQA provides in its entirety:
Pub. L. 106-554, 114 Stat 2763, 2763A-153-2763A-154 (2000) (codified at 44 U.S.C. § 3516).
Subsection (a) mandates that the Office of Management and Budget ("OMB") issue, by no later than September 30, 2001, government-wide guidelines to ensure the "quality, objectivity, utility, and integrity of information" disseminated by federal
Within one year of OMB's issuance of Guidelines, each federal agency was required to issue its own guidelines consistent with OMB's. Id. at § 515(b)(2)(A). OMB, the Department of the Interior, and FWS timely issued the required guidelines. See, e.g., Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies, 67 Fed. Reg. 8,452 (Feb. 22, 2002) ("OMB IQA Guidelines"); Information Quality Guidelines of the U.S. Department of the Interior, 67 Fed. Reg. 50,687 (Aug. 5, 2002) ("DOI IQA Guidelines"); FWS Information Quality Guidelines ("FWS IQA Guidelines")
FWS's own IQA Guidelines are specific to its activities and disseminations, including biological opinions, and state that in order to ensure objectivity of information disseminated, the information will be presented in an "accurate[ ]," "clear[ ]," "complete[ ]," and "unbiased" manner. FWS IQA Guidelines III-8. In addition, FWS' IQA Guidelines require that a "preparer of a highly influential assessment or of influential information ... document the strengths and weaknesses of the data underlying the assessment/information so that the reader will understand the context for the FWS decision." Id. at § VI-10. Plaintiffs maintain that FWS failed to comply with these guidelines because the "effects of the BiOp were assumed, not supported by data and objective and scientific analyses." Doc. 551 at 82.
(2) Right to Judicial Review Under the APA.
Federal Defendants and Defendant Intervenors raise a threshold objection, arguing that there is no right of judicial review under the IQA.
It is undisputed that the IQA provides no private right of action. A party challenging an administrative agency's compliance with a substantive statute that lacks an internal private right of action must seek judicial review under the APA. See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); Village of False Pass v. Clark, 733 F.2d 605, 609 (9th Cir.1984) (because ESA contains no internal standard of review, APA § 706 governs review of actions brought under the ESA).
The APA authorizes suit by a plaintiff "suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute." 5 U.S.C. § 702. There is a presumption of reviewability under the APA. Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1, 44 n. 11, 120 S.Ct. 1084, 146 L.Ed.2d 1 (2000). However,
If neither exception applies, the APA permits judicial review of "[a]gency action made reviewable by statute and
a. APA § 701(a)(2)'s Exception for Agency Action "Committed to Agency Discretion by Law" Bars Judicial Review in this Case.
FFA does not allege that any statute expressly precludes judicial review of FFA's IQA claim. The issue is whether the IQA and/or its implementing guidelines, by law, commit to agency discretion the disputed agency actions challenged by Plaintiff's claim.
The general test for when an action is "committed to agency discretion by law" under the APA is whether there is "no law to apply." Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (internal quotation marks omitted). "Agency action is committed to the discretion of the agency by law when `the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion.'" Steenholdt v. FAA, 314 F.3d 633, 638 (D.C.Cir.2003) (quoting Heckler, 470 U.S. at 830, 105 S.Ct. 1649). "If no `judicially manageable standard' exists by which to judge the agency's action, meaningful judicial review is impossible and the courts are without jurisdiction to review that action." Id. Here, the IQA itself contains
However, even "[w]here an action is committed to absolute agency discretion by law, ... courts have assumed the power to review allegations that an agency exceeded its legal authority, acted unconstitutionally, or failed to follow its own regulations." United States v. Carpenter, 526 F.3d 1237, 1242 (9th Cir.2008); see also Padula v. Webster, 822 F.2d 97, 100 (D.C.Cir.1987) ("Judicially manageable standards may be found in formal and informal policy statements and regulations as well as in statutes, but if a court examines all these possible sources and concludes that there is, in fact, `no law to apply,' judicial review will be precluded.") (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). The critical issue is: Do the agency's own regulations create meaningful standards or do they preserve the discretion afforded by the statute?
Salt Institute v. Thompson, 345 F.Supp.2d 589 (E.D.Va.2004), aff'd sub nom. on alternate grounds, Salt Inst. v. Leavitt, 440 F.3d 156 (4th Cir.2006), applied § 701(a)(2) and Steenholdt to the
Id. at 602-603. Do the IQA Guidelines create meaningful standards regarding the content of a biological opinion, or do the Guidelines preserve agency discretion over these procedural matters?
Plaintiffs' attempt to distinguish Salt Institute on the ground that, in preparing and disseminating "highly influential" scientific documents, the agency is mandated to follow a scientific approach to develop the best available scientific data used in that document. Specifically, Plaintiffs reference FWS IQA Guidelines VI-10, which provide:
Although this biological opinion is undoubtedly the type of "influential document"
(3) To the Extent FFA Bases Any of its Claims against Reclamation on the ESA, Such Claims are Subject to the ESA's Pre-Filing Requirements.
To the extent FFA's IQA and ESA claims overlap, its ESA claims are subject to the ESA's pre-filing notice requirement. No suit may be commenced under the ESA "prior to sixty days after written notice of the violation has been given to the Secretary." 16 U.S.C. § 1540(g)(2)(A)(i). This requirement is jurisdictional and "[a] failure to strictly comply with the notice requirement acts as an absolute bar to bringing suit under the ESA." Southwest Ctr. for Biological Diversity, 143 F.3d at 520. Failure to comply with a statutory notice requirement is a jurisdictional objection that may be addressed "at any time." See Fed.R.Civ.P. 12(h)(3).
Here, FFA failed to notify Reclamation of its intent to sue. Plaintiffs argue that "[a]doption of a BiOp is a final agency action, and such actions are subject to judicial review under the APA," citing Bennett v. Spear, 520 U.S. at 178, 117 S.Ct. 1154. However, allowing a plaintiff to circumvent the ESA's 60-day notice requirement by claiming that its cause of action arises under the APA would circumvent the ESA's notice requirement entirely. Hawaii County Green Party v. Clinton, 124 F.Supp.2d 1173, 1193 (D.Haw. 2000).
To the extent that FFA's claims against Reclamation arise under the ESA, their motion for summary judgment is DENIED on the ground that they failed to comply with the statutory notice requirement. Federal Defendants' and Defendant Intervenors' cross-motions are GRANTED.
F. Renewed Claim That FWS Violated NEPA.
Plaintiffs attempt to revisit the issue of whether FWS violated NEPA in issuing the BiOp and its RPA. Plaintiffs first renew an argument that was rejected in the Salmonid Consolidated cases, namely that Ramsey v. Kantor, 96 F.3d 434 (9th Cir. 1996), the only case in which the issuance of a biological opinion was found to violate NEPA, controls here. In Ramsey, the NEPA obligation was imposed on the consulting agency's issuance of a biological opinion in part because there was no federal action agency to comply with NEPA.
The November 12, 2009 NEPA decision in this case found Ramsey inapplicable because the action agency is Reclamation. See Doc. 399, 686 F.Supp.2d at 1036-37.
Consolidated Salmonid Cases, 1:09-cv-1053 OWW DLB, Doc. 266 at 14 (emphasis in original). Plaintiffs offer no new law or persuasive authority compelling a finding of clear error to justify reconsideration.
Alternatively, Plaintiffs argue that "FWS's future choices with respect to OMR flows restrictions are `major federal actions' within the scope of [NEPA's implementing regulations]." Doc. 551 at 87. This argument continues:
This is an attempt to re-argue and re-frame arguments previously decided. The prior NEPA rulings determined that Reclamation bears the NEPA responsibility in this case as action agency. "Reclamation proposed the action (in the form of the Operations and Criteria Plan (`OCAP')) to FWS, which triggered the preparation of the BiOp." Doc. 399, 686 F.Supp.2d at 1042. "Reclamation was not `bound' by the BiOp until it chose to proceed with the OCAP and implement the RPA. Once Reclamation did so, operation of the Projects
Plaintiffs' motion for summary judgment as to FWS's liability under NEPA is DENIED; Federal Defendants' and Defendant-Intervenors' cross motion is GRANTED.
G. Reclamation's Liability under the ESA.
Following the issuance of a biological opinion, the ESA regulations require the action agency, here, Reclamation, to "determine whether and in what manner to proceed with the action in light of its section 7 obligations and the Service's biological opinion." 50 C.F.R. § 402.15(a). In making that determination, a federal action agency "may not rely solely on a FWS biological opinion to establish conclusively its compliance with its substantive obligations under section 7(a)(2)." Pyramid Lake Paiute Tribe of Indians v. U.S. Dept. of Navy, 898 F.2d 1410, 1415 (9th Cir.1990). In City of Tacoma v. Fed. Energy Regulatory Comm'n, 460 F.3d 53, 76 (D.C.Cir.2006), the D.C. Circuit summarized the caselaw culminating in Pyramid Lake:
City of Tacoma, 460 F.3d at 75-76. The D.C. Circuit rejected the City of Tacoma's claim that the consultant agency in that case, FERC, was liable under the ESA because the City had not "presented FERC with new information that was unavailable to [NMFS] or [FWS] and that would give FERC a basis for doubting the expert conclusions in the BiOps those agencies prepared." Id. at 76.
Here, Plaintiffs attempt to side-step this standard, arguing that Reclamation should have independently recognized and addressed specified errors in the BiOp. For example, they argue Reclamation should have recognized the error caused by comparing CALSIM data to non-CALSIM Data because Reclamation had extensively analyzed the use of CALSIM in the BA. See AR 010698-010807. The BA stated:
AR 010701. FWS took this information into account in the BiOp. See BiOp at 204-206, reviewing Calsim II modeling performed in the BA. Plaintiffs have not demonstrated that Reclamation was in possession of any "new information" not considered by FWS that provided Reclamation a basis for questioning the BiOp's expert conclusions. Absent such a showing, even though the BiOp is flawed in many ways, Reclamation could rely upon it without incurring ESA liability.
It cannot be disputed that the law entitles the delta smelt to ESA protection. It is significant that the co-operator of the Projects, DWR, in its endeavors to protect
For all the reasons set forth above:
The 2008 BiOp and its RPA are arbitrary, capricious, and unlawful, and are remanded to FWS for further consideration in accordance with this decision and the requirements of law. Plaintiffs shall submit a form of order consistent with this memorandum decision within five (5) days of electronic service.
A status conference is set for January 4, 2011, at 12:00 noon, in Courtroom 3(OWW), to address any need for further proceedings.
Plaintiffs also argue that the BiOp improperly attributes all (or substantially all) of the observed, historical upstream shift of X2 to Project Operations. It is preferable to address these contentions with related arguments in Part VII.A.(6).
Plaintiffs suggest that the modeled X2 data did not constitute a separate justification for Action 4 because the reason FWS gave in the BiOp for presenting the Calsim II model results in a monthly time step was "to be consistent with previous analyses (Feyrer 2007, 2008)." BiOp at 235. But, this does not mean that the Calsim II data was somehow dependent upon Feyrer's work. Rather, that data was presented in such a way to be consistent with the way Feyrer analyzed data. In the final analysis, Action 4 did rely extensively, but not exclusively, on Feyrer's articles.
"The duration of balanced water conditions varies from year to year. Some very wet years have had no periods of balanced conditions, while very dry years may have had long continuous periods of balanced conditions, and still other years may have had several periods of balanced conditions interspersed with excess water conditions. Account balances continue from one balanced water condition through the excess water condition and into the next balanced water condition. When the project that is owed water enters into flood control operations, at Shasta or Oroville, the accounting is zeroed out for that respective project. The biological assessment provides a detailed description of the changes in the COA." BiOp at 20-21.
• FWS did not consider or rule out the fact that grazing by exotic clam species causes the observed reduced P. forbesi density in Suisun Bay.
• FWS did not consider or rule out the fact that higher densities of P. forbesi in the South Delta are caused by differences in spatial distribution between juvenile and adult P. forbesi because juveniles are more dense in the South Delta.
• FWS did not consider or account for the fact that Plaintiffs provided FWS with results of regression analyses of the best scientific data available that showed "[P. forbesi] densities in Suisun Bay are not correlated with exports ...," but that there is "a highly significant correlation between [P. forbesi] densities in Suisun Bay and those in Suisun Marsh, suggesting (unsurprisingly) that if Suisun Bay densities are being subsidized, the most likely source is Suisun Marsh." AR 006369; 006377-006378.
Doc. 551 at 48-49. The support for these arguments were incorporated by reference from the extensive argument concerning the BiOp's food analysis contained in Plaintiffs' motion for Preliminary Injunction. Given the prolixity of briefing and the highly contentious process by which page limits for the motions for summary judgment were set in this case, it would be highly prejudicial to Defendants to permit such extensive incorporation by reference into the summary judgment proceedings. These arguments will not be addressed.