Biological Opinions for the

Sacramento-San Joaquin Delta:

A Case Law Summary
Kristina Alexander
Legislative Attorney
January 23, 2012

Congressional Research Service

7-5700
www.crs.gov
R41876

CRS Report for Congress

Prepared for Members and Committees of Congress

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

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

Congressional Research Service

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

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

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

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

Congressional Research Service

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

Proceedings Related to OCAP BiOps

Case Name

Date

Document
Title

Summary

NRDC v. Norton, 1:05cv-1207, 2007 WL

14283 (E.D. Cal. Jan. 3,
2007)

1/3/07

Order Denying
Motions for
Dismissal,
Remand, and
Stay

Despite the fact that new BiOps were being prepared by

both FWS and NMFS, the court refused to dismiss as
moot the cases challenging the 2004 and 2005 BiOps.
The court refused to stay Bureaus operations to pre2004 levels or to consolidate suit against FWS with
Pacific Coast Federations suit against NMFS. (Bureau
reinitiated consultation with FWS on OCAP after new
data on delta smelt showed 2005 No Jeopardy BiOp
needed to be revisited. Bureau reinitiated consultation
with NMFS after species not listed at time of 2004 No
Jeopardy BiOp became protected.)

NRDC v. Kempthorne,
506 F. Supp. 2d 322
(E.D. Cal. 2007)

5/25/07

Order
Remanding 2005
FWS BiOp

The court held the 2005 FWS BiOp conclusion that

delta smelt were not in jeopardy was arbitrary and
capricious and remanded to the agency. The court found
that the BiOps take limits were based on inadequate
historical data that did not reasonably estimate the delta
smelts population. The court also found that FWS did
not consider available data on climate change and the
possible impacts on the smelts critical habitat. Finally,
the court was not convinced mitigation efforts were
reasonably certain to occur.

Pac. Coast Fedn of

Fishermens Assn/Inst.
for Fisheries Res. v.
Gutierrez, 1:06-cv00245, 2007 WL
1752289 (E.D. Cal. June
15, 2007)

6/15/07

Dismissing
NEPA Claim

The court dismissed Plaintiffs NEPA claim that the

Bureau was required to prepare an EIS for the 2004
OCAP. The OCAP was a descriptive document rather
than a final agency action because it was not the last
word" on the issue and lacked legal effect.

NRDC v. Kempthorne,
1:05-cv-1207, 2007 WL
1989015 (E.D. Cal. July
3, 2007)

7/3/07

Denying TRO
to Reduce
Water Flow
Provided by
FWS BiOp

The court refused to grant a TRO on the 2005 FWS

BiOp to reduce water flow to downstream users,
holding that the evidence did not prove the delta smelt
faced irreparable harm. The potential harm to the
species did not outweigh the potential harms to societal
and economic interests from reduced pumping.

NRDC v. Kempthorne,
1:05-cv-1207, 2007 WL
4462391 (E.D. Cal. Dec.
14, 2007)

12/14/07

Order granting
Interim
Remedial Relief
for Flow Limits

The court granted remedial relief that set flow limits and
triggering events. The court also required that FWS
draft a new BiOp and stated that remedial relief would
remain in place until the new BiOp was complete.

Pacific Coast Federation

of Fishermens
Associations v.
Gutierrez, 606 F. Supp.
2d 1122 (E.D. Cal. 2008)

5/20/08

Remanding 2004
NMFS BiOp

The court held that the 2004 NMFS BiOp conclusion

that salmon and steelhead were not in jeopardy was
arbitrary and capricious and remanded to the agency.
The BiOp failed to analyze the impact of global climate
change and the damage to salmon and steelhead critical
habitats.

Congressional Research Service

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

Case Name

Date

Document
Title

Summary

Pacific Coast Federation

of Fishermens
Associations v.
Gutierrez, 606 F. Supp.
2d 1195 (E.D. Cal. 2008)

7/18/08

Denying
Plaintiffs
Requests for
Emergency
Interim
Remedies while
New NMFS
BiOp Being
Prepared

The court refused to grant remedial relief of increased

water flows at Clear Creek and raised gates at the Red
Bluff Diversion Dam while the new BiOp was being
prepared based on scientific and evidentiary disputes.
The court found that the NMFS 2004 BiOp could place
the salmon and steelhead at great risk of irreparable
harm, and that the government failed to prove that the
project would not make extinction or destruction of
critical habitats more likely.

NRDC v. Kempthorne,
1:05-cv-01207, 2008 WL
4369308 (E.D. Cal. Sept.
22, 2008)

9/22/08

Order
Extending Time
for FWS to
Complete
Revised Delta
Smelt BiOp

The court extended the deadline for FWS to complete

the BiOp for the CVP from 9/15/2008 to 12/15/2008.

BiOp

12/15/08

FWS BiOp
Issued

FWS issued a BiOp pertaining to the effect of CVP and

SWP on delta smelt. FWS found the operations could
jeopardize the continued existence of the species.

Delta Smelt
Consolidated Cases, No.
1:09-cv-407 (E.D. Cal.
2009)

3/3/09

Complaint Filed
that Became
Delta Smelt
Consolidated
Cases

First complaint filed against 2008 FWS BiOp by San Luis

& Delta-Mendota Water Authority and Westlands
Water District. Five other complaints were filed and
consolidated: Coalition for Sustainable Delta (1:09-cv422); Metropolitan Water district of Southern California
(1:09-cv-631); State Water Contractors (1:09-cv-480);
Stewart and Jasper Orchards (1:09-cv-892); Family Farm
Alliance (1:09-cv-1201).

NRDC v. Kempthorne,
621 F. Supp. 2d 954
(E.D. Cal. 2009)

4/27/09

Renewal of
Senior Water
Rights
Contracts Not
Subject to ESA

The court held that Bureau does not have to consult

under ESA for water contracts. Senior water rights
contracts were non-discretionary obligation for Bureau,
so ESA did not apply.

Delta Smelt
Consolidated Cases,
1:09-CV-407, 2009 WL
1575169 (E.D. Cal. May
29, 2009)

5/29/09

Granting
Preliminary
Injunction to
Halt FWS BiOp
RPA
Component 2

The court granted preliminary injunction of 2008 FWS

BiOp RPA Component 2. The court held that it was
likely that FWS had failed to comply with NEPA before
issuing BiOp and did not base holding on ESA.

BiOp

6/4/09

NMFS BiOp
Issued

NMFS issued a BiOp pertaining to the effect of CVP and

SWP on Chinook salmon, steelhead trout, green
sturgeon, and southern resident killer whales. NMFS
found the CVP/SWP operations could jeopardize the
continued existence of the species.

Consolidated Salmonid
Cases, 1:09-cv-1053
(E.D. Cal. 2009)

6/15/09

Complaint Filed
that Became
Consolidated
Salmonid Cases

San Luis & Delta-Mendota Water Authority and

Westlands Water District file case, which becomes the
Consolidated Salmonid Cases upon 9/23/2009
consolidation with cases brought by Stockton East
Water District, Metropolitan Water District of
Southern California, Oakdale Irrigation District, Kern
County Water Agency, and State Water Contractors.

Congressional Research Service

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

Case Name

Date

Document
Title

Summary

NRDC v. Kempthorne,
1:05-cv-01207, 2009 WL
2849626 (E.D. Cal. Sept.
1, 2009)

9/1/09

Renewal of
CVPIA
Contracts Not
Subject to ESA

The court rejected NRDCs argument that Bureau failed

to perform ESA consultation for executing contracts
under CVPIA. The court held that contracts were
nondiscretionary. Also, because the contracts already
allowed Bureau to stop delivery if delta smelt would be
harmed, there was no basis for any ESA claim.

Consolid. Salmonid
Cases, 1:09-cv-1053
(E.D. Cal. 2009)

9/3/09

Granting
Intervention for
DefendantIntervenors

Federal defendants (Department of Commerce, NOAA,

NMFS, Department of the Interior, FWS, Bureau) are
joined by defendant intervenors: Pacific Coast
Federation of Fishermens Associations/Institute for
Fisheries Resources, The Bay Institute, Friends of the
River, Natural Resources Defense Council, Northern
California Council of the Federation of Fly Fishers, San
Francisco Baykeeper, Sacramento River Preservation
Trust, and Winnemem Wintu Tribe.

Delta Smelt
Consolidated Cases,
1:09-cv-407 (E.D. Cal.
2009)

9/4/09

Amended
Complaint

Plaintiffs, San Luis & Delta Mendota Water District and

Westlands Water District, amended complaint to add
Bureau as defendant.

NRDC v. Kempthorne,
1:05-cv-1207 (E.D. Cal.
2009)

9/23/09

Judgment

Resolved complaints by NRDC and others against

Bureau and FWS for 2005 BiOp and water flow issues.
Notices of appeals filed by Department of the Interior
(11/19/2009) and NRDC (11/25/2009).

Delta Smelt
Consolidated Cases, 666
F. Supp. 2d 1137 (E.D.
Cal. 2009)

10/15/09

RPAs are Not

Procedurally
Flawed

The court rejected the summary judgment motion that

FWSs failure to make findings within the 2008 FWS
BiOp regarding four factors in the regulatory definition
of RPA was arbitrary and capricious.

Delta Smelt
Consolidated Cases, 686
F. Supp. 2d 1026 (E.D.
Cal. 2009)

11/13/09

Requiring
Bureau to
Comply with
NEPA for FWS
BiOp RPAs

The court held that Bureaus implementation of the

2008 FWS BiOp RPA was a major federal action. Bureau
had to prepare EIS before implementing BiOp. Summary
judgment in favor of plaintiffs. Order issued 12/9/2009.

Coalition for a
Sustainable Delta v. U.S.
Fish and Wildlife Service,
1:09-cv-480, 2009 WL
3857417 (E.D. Cal.
2009)

11/17/09

Consolidates
2008 BiOp
Claims with
Other Delta
Smelt Cases

The court granted FWSs motion to sever claims against

EPA and other agencies from the BiOp claims against
FWS. The plaintiff had argued the other agencies were
also responsible for harm to the smelt. The claims
related to the FWS 2008 BiOp were consolidated with
the other delta smelt cases.

Consol. Salmonid Cases,

1:09-cv-1053 (E.D. Cal.
2010)

1/27/10

Motion for TRO

Filed/ Motion
for Preliminary
Injunction

Motions filed by San Luis & Delta-Mendota Water

Authority and Westlands Water District to halt
implementation of 2009 NMFS BiOp RPA Action IV.2.3.

Delta Smelt
Consolidated Cases,
1:09-cv-407 (E.D. Cal.
2010)

1/27/10

Motion for TRO

Motion filed by San Luis & Delta-Mendota Water

Authority and Westlands Water District to halt
implementation of 2008 FWS BiOp RPA Component 1.

Consol. Salmonid Cases,

1:09-cv-1053, 2010 WL
500455 (E.D. Cal. Feb. 5,
2010)

2/5/10

Granting TRO
for NMFS BiOp
RPA IV.2.3

The court granted a TRO to 2009 NMFS BiOp RPA

Action IV.2.3 regarding storing water from storms. The
court found that the plaintiffs had not shown a
likelihood of success on the ESA claims, but the NEPA
violation had been established.

Congressional Research Service

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

Case Name

Date

Document
Title

Summary

Delta Smelt
Consolidated Cases,
1:09-cv-407 (E.D. Cal.
2010)

2/5/10

Denying TRO
for FWS BiOp

The court denied the TRO for the 2008 FWS BiOp. No
smelt were spotted in the area of the pumps; therefore,
the federal government was not implementing the RPA
that was being challenged.

Delta Smelt
Consolidated Cases, 693
F. Supp. 2d 1145 (E.D.
Cal. 2010)

2/12/10

Denying Second
Motion for TRO
for FWS BiOp
Component 1

The court refused to grant a TRO that would have

prevented the water flow reductions described in 2008
FWS BiOp Component 1, Action 2. The court held that
it could not issue a TRO based solely on NEPA if it
would lead to a violation of the ESA. The court noted
FWS argument that stopping the RPA could jeopardize
delta smelt.

Consol. Salmonid Cases,

1:09-cv-1053 (E.D. Cal.
2010)

2/22/10

Motion for TRO

Motion filed by San Luis & Delta Mendota Water

Authority and Westlands Water District to halt
implementation of RPA Action IV.2.1.

Consol. Salmonid Cases,

688 F. Supp. 2d 1013
(E.D. Cal. 2010)

3/5/10

Requiring
Bureau to
Comply with
NEPA for NMFS
BiOp RPAs
(Order issued
3/18/10)

The court held that the Bureau failed to comply with

NEPA in implementing RPAs from the 2009 NMFS BiOp.

Consol. Salmonid Cases,

713 F. Supp. 2d 1116
(E.D. Cal. 2010)

5/18/10

Granting
Preliminary
Injunction
Against
Implementation
of 2009 NMFS
BiOp RPA IV.2.1
and IV.2.3
(Order Issued
5/27/10)

The court granted a preliminary injunction halting

implementation of RPA IV.2.1 (through May 31) and
IV.2.3 (through June 15) of 2009 NMFS BiOp. The court
held that the balance of equities weighed in favor of the
injunctioneffects of loss of water supply would be
more severe than effects of reduced water for salmon
and steelhead. The court questioned NMFSs conclusion
that exports hurt salmon survival without examining
other negative impacts on salmon. Supplemental Findings
of Fact were issued 6/1/2010.

Delta Smelt
Consolidated Cases, 717
F. Supp. 2d 1021 (E.D.
Cal. 2010)

5/27/10

Preliminary
Injunction
Against
Implementation
of 2008 FWS
BiOp

The court granted a preliminary injunction of 2008 FWS

BiOp RPA Component 2, having to do with water flow
from the time delta smelt have spawned until June 20 of
each year. The court found that FWS did not use best
available science to support water flow levels,
particularly regarding use of gross salvage numbers, and
that FWS violated NEPA.

Delta Smelt
Consolidated Cases,
1:09-cv-407 (E.D. Cal.
2011)

6/22/10

Operational
Plan

All parties stipulated to joint operational plan for term

of preliminary injunction.

Delta Smelt
Consolidated Cases, 760
F. Supp. 2d 855 (E.D.
Cal. 2010)

12/14/10

Decision
Remanding 2008
FWS BiOp
(Order Issued
12/23/2010)

The court remanded the 2008 FWS BiOp for violating

the ESA in part by relying on data that were not the best
available science. The court found that the conclusion
that pump entrainment will adversely affect the smelt
was justified, but the flow prescriptions were flawed.
The court also held that FWS failed to consider whether
RPAs were economically and technically feasible,
interpreting those terms as applying to downstream
water users. FWS did not violate NEPA when issuing
BiOp.

Congressional Research Service

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

Case Name

Date

Document
Title

Summary

NRDC v. Salazar, 1:05cv-1207 (E.D. Cal. 2011)

2/2/11

Stipulation
Settling
Attorneys Fees

Department of the Interior will pay $1,906,500 to

NRDC in full settlement of attorneys fees and costs for
challenges of 2004 and 2005 BiOps.

Consol. Salmonid Cases,

1:09-cv-1053 (E.D. Cal.
2011)

2/3/11

Motion for
Preliminary
Injunction

Motion filed by Coalition for a Sustainable Delta and

Kern County Water Agency to halt implementation of
certain RPAs.

Delta Smelt
Consolidated Cases,
1:09-cv-407 (E.D. Cal.
2011)

2/24/11

Proposed
Interim Remedy
Through
6/30/2011

The parties agreed that while Components 2 and 3 of

the 2008 FWS BiOp were in effect, water flow would
have a 14-day average flow between -1,250 and -6,100
cfs.

San Luis & DeltaMendota Water

Authority v. Salazar, 638
F.3d 1163 (9th Cir. 2011)

3/25/11

Upholding ESA
Constitutionality

The Ninth Circuit upheld lower court that application of

the ESA to delta smelt (an intrastate fish with no
commercial value) is nonetheless constitutional. Based
on Supreme Court precedent, the Ninth Circuit found
that the ESA is substantially related" to interstate
commerce. Upholds decision of 663 F. Supp. 2d 922
(E.D. Cal. 2009).

Consol. Salmonid Cases,

1:09-cv-1053 (E.D. Cal.
2011)

3/28/11

Notification of
Court

Federal defendants notified the court that RPA Action

IV.2.1 will not be implemented this year.

Delta Smelt
Consolidated Cases,
1:09-cv-407 (E.D. Cal.
2011)

3/29/11

Judgment ending
Delta Smelt
Consolidated
Cases

Final decision summarizing earlier orders: Reclamation

violated NEPA and ESA; FWS did not violate NEPA;
BiOp violated ESA; RPA is remanded with new BiOp to
be completed by 10/1/2011; and Interim remedy
ordered on 2/24/2011 remains in place through
6/30/2011.

Consol. Salmonid Cases,

1:09-cv-1053 (E.D. Cal.
2011)

3/30/11

Order

Parties agreed that pending motions for TRO and a

preliminary injunction were moot in light of federal
defendants announcement of 3/28/2011. Motions
withdrawn.

Delta Smelt
Consolidated Cases,
1:09-cv-407 (E.D. Cal.
2011)

4/7/11

Notice of
Appeal Filed

NRDC and The Bay Institute (defendant-intervenors)

filed an appeal with the Ninth Circuit.

Delta Smelt
Consolidated Cases,
1:09-cv-407 (E.D. Cal.
2011)

5/4/11

Amended
Judgment

In response to motion by Federal Defendants, Court

modified 12/14/10 judgment to require completion of
FWS BiOp by 12/1/13, instead of 10/1/11.

Delta Smelt
Consolidated Cases,
1:09-cv-407 (E.D. Cal.
2011)

6/8/11

Motion for
Preliminary
Injunction Filed

Water users challenged 2008 FWS BiOp RPA Fall X2,

which would take place in September 2011, arguing that
science did not show that those water flow reductions
would increase delta smelt abundance.

San Luis & Delta

Mendota Water
Authority v. U.S.
Department of the
Interior, 1:11-cv-952
(E.D. Cal. 2011)

6/10/11

Motions for
TRO and
Preliminary
Injunction

Motion for TRO and preliminary injunction filed to halt

Bureaus reduction of water flow to aid fall-run Chinook
salmon, which is not an ESA-listed species. Suit alleged
violation of CVPIA 3411(b).

Congressional Research Service

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

Case Name

Date

Document
Title

Summary

San Luis & Delta

Mendota Water
Authority v. U.S.
Department of the
Interior, 1:11-cv-952
(E.D. Cal. 2011)

6/15/11

Order

The court ruled from the bench, denying plaintiffs

motions for TRO and preliminary injunction to increase
water flow at delta pumps.

Stewart & Jasper

Orchards v. Salazar, No.
10-1551 (S. Ct. 2011)

6/22/11

Petition for a
Writ of
Certiorari Filed

Water users wanted the U.S. Supreme Court to review

a March 2011 Ninth Circuit decision, which held that
applying the ESA to delta smelt is constitutional (638
F.3d 1163 (9th Cir. 2011)).

Delta Smelt
Consolidated Cases,
1:09-cv-407 (E.D. Cal.
2011)

6/24/11

Jurisdiction to
Hear Motion for
Preliminary
Injunction

Court found that it had jurisdiction to review 6/8/11

Motion for Preliminary Injunction, rejecting federal
defendants argument that courts 12/14/10 decision
(now on appeal) prevented review.

Delta Smelt
Consolidated Cases,
1:09-cv-407 (E.D. Cal.
2011)

6/30/11

Notice of
Appeal Filed

State Water Contractors filed an appeal of 12/14/10

decision with the Ninth Circuit.

Delta Smelt
Consolidated Cases,
1:09-cv-407 (E.D. Cal.
2011)

7/1/11

Notice of
Appeal Filed

Federal defendants filed appeal of 12/14/10 decision with

the Ninth Circuit.

Delta Smelt
Consolidated Cases,
1:09-cv-407 (E.D. Cal.
2011)

9/2/11

Preliminary
Injunction

Court halted implementation of 2008 FWS BiOp RPA

Fall X2, which pertains to flow levels. The timing and
measurement of that action were allowed to continue.

San Luis & Delta

Mendota Water
Authority v. U.S.
Department of the
Interior, 1:11-cv-952,
2011 U.S. Dist. LEXIS
99956 (E.D. Cal. 2011)

9/6/11

Written
Decision of 6/15
Denial of
Preliminary
Injunction

Court denied motion for preliminary injunction to

restore flow at a pump station. Motion was based on
CVPIA 3411.

Delta Smelt
Consolidated Cases,
1:09-cv-407 (E.D. Cal.
2011) (Ninth Cir. Doc.
No. 11-17143)

9/6/11

Notice of
Appeal
Filed/Motion for
Stay Filed

NRDC and The Bay Institute (defendant-intervenors)

filed an appeal with the Ninth Circuit of the 9/2/11
decision halting implementation of 2008 FWS BiOp RPA.
A motion to stay that decision was also filed.

Delta Smelt
Consolidated Cases,
1:09-cv-407 (E.D. Cal.
2011)

9/13/11

Amended
Order

Court amended the Preliminary Injunction of 9/2/11 to

prohibit implementation of 2008 FWS BiOp RPA 74km
X2 Target during 2011, or setting the X2 Target
downstream or west of 79 km in 2011.

Consol. Salmonid Cases,

791 F. Supp. 2d 802
(E.D. Cal. 2011)

9/20/11

Memorandum
Decision on
Summary
Judgment

Court held that jeopardy conclusion of 2009 NMFS

BiOp was correct, but that RPAs were not adequately
justified or supported by the record. BiOp was
remanded.

Congressional Research Service

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

Case Name

Date

Document
Title

Summary

Delta Smelt
Consolidated Cases,
1:09-cv-407 (E.D. Cal.
2011

9/26/11

Second
Amended
Order/Partial
Stay

Court stayed Amended Order of 9/13/11 to allow Fall

X2 water flow through 10/15/11 but prohibited
implementation of 74 km X2 Target from 10/16/11
through 11/30/11, and prohibited setting the X2 Target
downstream or west of 79 km from 10/16/11 through
12/31/11.

Consol. Salmonid Cases,

1:09-cv-1053 (E.D. Cal.
2011)

9/29/11

Order

Court directed the remand of the 2009 NMFS BiOp (as

discussed in the Memorandum Decision of 9/20/11). The
BiOp was not vacated.

Stewart & Jasper

Orchards v. Salazar, No.
10-1551 (S. Ct. 2011)

10/31/11

Petition for writ

of certiorari
denied

Supreme Court refused to review issue of whether ESA

application to delta smelt was constitutional.

Consol. Salmonid Cases,

1:09-cv-1053 (E.D. Cal.
2011)

12/12/11

Final Judgment

Court ordered NMFS to transmit a draft salmon BiOp

by 10/1/14, and a final BiOp by 2/1/16; and the Bureau to
issue a final EIS by 2/1/16, and a record of decision by
4/29/16.

Consol. Salmonid Cases,

1:09-cv-1053

1/19/12

Notice of
Appeal

Environmental groups appealed the judgment of

12/12/11.

Congressional Research Service

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

Appendix A. List of Acronyms and Abbreviations

Used in Table
BiOp

Biological Opinion (see 16 U.S.C. 1536(b))

Bureau

U.S. Bureau of Reclamation of the Department of the Interior

cfs

cubic feet per second

CVP

Central Valley Project

CVPIA

Central Valley Project Improvement Act (P.L. 102-575, Title 34)

DOI

Department of the Interior

E.D. Cal.

Federal District Court for the Eastern District of California

EIS

Environmental Impact Statement

ESA

Endangered Species Act (16 U.S.C. 1531-1544)

FWS

U.S. Fish and Wildlife Service of the Department of the Interior

NEPA

National Environmental Policy Act (42 U.S.C. 4321-4332)

NMFS

National Marine Fisheries Service of the Department of Commerce

NRDC

Natural Resources Defense Council

OCAP

Operations Criteria and Plan

RPA

Reasonable and Prudent Alternatives (see 16 U.S.C. 1536(b)(3)(A))

S. Ct.

U.S. Supreme Court

SWP

State Water Project

TRO

Temporary Restraining Order

9th Cir.

U.S. Federal Court of Appeals for the Ninth Circuit (which includes the Eastern
District of California)

X2

Geographical location where the isohaline levels of a river are at 2 parts per
thousand. Setting X2 Targets requires changing freshwater flow levels in order
to push that concentration level farther out to the estuaries.

Congressional Research Service

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

Appendix B. Brief Description of Cases in Table

Party(ies)

Case No. and Court

Basis of Claim(s)

NRDC v. Kempthorne (originally

NRDC v. Norton)

1:05-cv-1207 (E.D. Cal)

Adequacy of FWS 2004 and 2005

Delta Smelt BiOps (which found fish
were not jeopardized by CVP/SWP
operations).

Pacific Coast Federation of

Fishermens Associations v.
Gutierrez

1:06-cv-245 (E.D. Cal.)

Adequacy of NMFS 2005 Salmonid

BiOp (which found fish were not
jeopardized by CVP/SWP operations).

Delta Smelt Consolidated Cases

(defendant is Salazar) (a/k/a San
Luis & Delta-Mendota Water
Authority v. Salazar)

1:09-cv-407 (E.D. Cal.)

Adequacy of 2008 FWS Delta Smelt

BiOp (which found fish were
jeopardized by CVP/SWP operations).

Coalition for a Sustainable Delta v.

U.S. Fish and Wildlife Service

1:09-cv-480 (E.D. Cal.)

Adequacy of 2008 FWS Delta Smelt

BiOp (which found fish were
jeopardized by CVP/SWP operations).

Consolidated Salmonid Cases

(defendant is Locke) (a/k/a San
Luis & Delta-Mendota Water
Authority v. Locke)

1:09-cv-1053 (E.D. Cal.)

Adequacy of 2009 NMFS Salmonid

BiOp (which found fish were
jeopardized by CVP/SWP operations).

San Luis & Delta-Mendota Water

Authority v. U.S. Department of
the Interior

1:11-cv-952 (E.D. Cal.)

Lawfulness of water flow reduction to

aid fall-run Chinook, which is not a
listed species. Not part of BiOp
challenges.

Stewart & Jasper Orchards v.

Salazar (part of Delta Smelt
Consolidated Cases)

No. 10-1551 (S. Ct.)

Constitutionality of ESA consultation

requirement as applied to delta smelt.

Source: Congressional Research Service.

Author Contact Information

Kristina Alexander
Legislative Attorney
[email protected], 7-8597

Congressional Research Service