Joint status conference statement in California case

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DANIEL J. O’HANLON, State Bar No. 122380
JON D. RUBIN, State Bar No. 196944
KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD
A Professional Corporation
400 Capitol Mall, 27th Floor
Sacramento, CA 95814-4416
Telephone: (916) 321-4500
Facsimile: (916) 321-4555
Attorneys for Plaintiffs SAN LUIS & DELTA-
MENDOTA WATER AUTHORITY and
WESTLANDS WATER DISTRICT
SAN LUIS & DELTA-MENDOTA
WATER AUTHORITY and
WESTLANDS WATER DISTRICT,
v.
Plaintiffs,
U.S. DEPARTMENT OF THE
INTERIOR; GALE A. NORTON, as
Secretary of the U.S. Department of the
Interior; U.S. FISH AND WILDLIFE
SERVICE; STEVE WILLIAMS, as
Director, Fish and Wildlife Service, U.S.
Department of the Interior; STEVE
THOMPSON, as Operations Manager,
California/Nevada Operations Office,
Fish and Wildlife Service, Pacific Region,
U.S. Department of the Interior; ANNE
BADGLEY, as Regional Director, Fish
and Wildlife Service, Pacific Region,
U.S. Department of the Interior,
Defendants.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CASE NO. CIV F-02-6461 OWW DLB
JOINT STATUS CONFERENCE
STATEMENT
DATE: May 31, 2005
TIME: 9:00 a.m.
COURTROOM: Two
Hon. Oliver W. Wanger
TELEPHONIC CONFERENCE
REQUESTED
Plaintiffs San Luis & Delta-Mendota Water Authority (“Authority”) and Westlands Water
District (“Westlands”) (collectively “Plaintiffs”), Defendants United States Department of the
Interior, et al., (collectively “Defendants”) and Intervenors National Resources Defense Council,
et al., (collectively “Intervenors”) jointly submit this statement in preparation for the status
conference currently scheduled for May 31, 2005.
///
797416.1 -1- JOINT STATUS CONFERENCE STATEMENT

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1. Summary of Case and Developments
The original claims and issues in this action are detailed in the Court’s Scheduling
Conference Order filed March 3, 2003. In brief, this case involves the status of the delta smelt
under the federal Endangered Species Act (“ESA”), 16 U.S.C. § 1531, et seq. The delta smelt
was listed as a threatened species in 1993. Plaintiffs’ first claim in the complaint challenged the
Defendant’s alleged failure to perform the five-year status review of delta smelt required under
section 4(c)(2), 16 U.S.C. § 1533(c)(2). The first claim was resolved by settlement, and on
March 31, 2004 the Fish and Wildlife Service completed its five-year status review. The
remaining unresolved claims in the initial complaint challenge the recovery criteria for delta smelt
set forth in the Recovery Plan for Sacramento-San Joaquin Delta Native Fishes, adopted in
November 1996.
The issues not included in the March 13, 2003 Scheduling Conference Order relate to the
five-year status review completed on March 31, 2004. In a supplemental complaint filed on
January 28, 2005, the Plaintiffs challenge the adequacy of the five-year status review.
In its most recent Scheduling Conference Order, filed November 23, 2004, the Court set
deadlines for amendment of and response to the pleadings, lodging the administrative record, and
motions regarding the adequacy of the record. The Plaintiffs have since filed a supplemental
complaint, the Defendants and Intervenors have filed answers, and Defendants have filed the
administrative records.
further status.
The November 23, 2004 Scheduling Conference Order set May 31, 2005 as the date for
2. Amendments of pleadings.
No party anticipates further amendment of the pleadings.
3. Settlement.
The Plaintiffs and Defendants have discussed settlement, but have not reached agreement.
They do not believe that a settlement conference would be helpful at this time. They may request
a conference if that view changes. Intervenors have not been included in any settlement
discussions and reserve their right to raise objections to any proposed settlement that may be
797416.1 -2- JOINT STATUS CONFERENCE STATEMENT

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arrived at without their participation and agreement.
4. Related matters.
There is another matter pending in the United States District Court for the District of
Columbia: California Farm Bureau Federation et al. v. Anne Badgley et al., No. 1:02CV02328
RCL ECF. The Farm Bureau action raises essentially the same issues as are raised in this action.
The United States has moved to transfer that action to this Court. The motion to transfer has been
pending since November 2004. If the Farm Bureau action is transferred, it should be consolidated
with the present action.
Plaintiffs believe that an action filed in the United States District Court for the Northern
District of California on February 15, 2005 is related to this action as well. That action, entitled
Natural Resources Defense Council, et al. v. Norton, et al., USDC ND Cal. No. C05 0690,
challenges the biological opinion assessing the effects on delta smelt of operating the Central
Valley Project (“CVP”) in accordance with the Operating Plan and Criteria (“OCAP”), and
certain proposed changes to CVP operations. Plaintiffs filed a Notice of Related Case Pending in
the Northern District of California in this action on April 12, 2005. That notice further describes
the relationship between the cases. Plaintiffs have moved to intervene in the NRDC action. The
motion to intervene has not yet been decided. If Plaintiffs are granted leave to intervene, they
expect to file a motion in the NRDC action to have it transferred to this Court.
Intervenors, some of whom are Plaintiffs in the Northern District of California case,
believe that the above Notice of Related Case was premature and inappropriate for several
reasons. First, because that action is properly brought in the Northern District of California, the
local rules for the Eastern District of California requiring that a notice of related case be filed are
inapplicable. Second, the Plaintiffs in this matter are not yet parties to that matter, so Intervernors
believe their filing of a Notice in this case on the assumption that another Court will grant their
intervention and then grant their transfer motion was presumptuous and inappropriate. Moreover,
the Northern District action is not factually related to this action: in the Northern District case, the
unrelated actions of a completely different federal agency are challenged for their impacts to delta
smelt at a time when the species population is at its lowest point in the history of monitoring; and
797416.1 -3- JOINT STATUS CONFERENCE STATEMENT

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distinct legal issues concerning distinct legal duties are raised.
5. Proposed Scheduling
a. Plaintiffs’ Proposed Schedule
Plaintiffs propose that the Court order a further status conference after 120 days, for a date
in early October 2005. With the administrative record now available, the case could be briefed
and argued, but Plaintiffs suggest that such action be deferred. Plaintiffs propose this approach
for three reasons.
First, it is Plaintiffs’ position that there is no dispute among Plaintiffs and Defendants that
the current recovery criteria for the delta smelt should be revised. If the Plaintiffs were to prevail
on their claims against the current recovery criteria, the Court would remand the criteria, but
would not direct Defendants what the new criteria should be. There seems to be little value in the
parties briefing and the Court deciding the motion regarding the recovery criteria, if the
Defendants already agree that the criteria should be revised. Plaintiffs and Defendants have not
yet been able to agree upon the terms and process under which the criteria should be reevaluated,
but may yet do so. Setting a further status conference without a briefing schedule allows more
time for the possibility of settlement, and perhaps avoiding briefing entirely.
Second, the Farm Bureau action may be transferred to this Court. Transfer during briefing
would disrupt a briefing schedule, and transfer after briefing and decision threatens duplication of
effort. Deferring briefing allows for the possibility that the motion to transfer will be decided
before briefing.
Third, Plaintiffs believe that if the case pending in the Northern District is transferred to
this Court, it may be useful to coordinate the two proceedings. Plaintiffs believe that a common
core question in the two cases is the extent to which export operations of the Central Valley
Project and State Water Project adversely affect the delta smelt population. Deferring briefing
allows for such potential coordination.
Intervenors disagree that the Northern District case is a related case within the meaning of
either the Northern District or the Eastern District definitions of “related” and, thus, the notice of
related case is both premature and inappropriate. Intervenors believe that discussing the
797416.1 -4- JOINT STATUS CONFERENCE STATEMENT

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possibility for future case management by this Court of a pending Northern District case is
inappropriate.
b. Federal Defendants’ Proposed Schedule
Plaintiffs have brought a total of four claims in their complaint and amended complaint.
The first claim, which challenged the Service’s alleged failure to complete a five-year review of
the delta smelt, was resolved by settlement. Plaintiffs’ second and third claims challenge the
Service’s recovery criteria for the delta smelt, adopted in November 1996, and argue that those
criteria violate the Endangered Species Act and are “arbitrary and capricious.” Plaintiffs’ fourth
claim challenges the five-year review that the Service completed in March 2004.
It is the position of the Federal Defendants that none of Plaintiffs’ remaining claims has
any merit. The Service’s delta smelt recovery criteria do not violate the ESA, were not “arbitrary
and capricious” when they were adopted, and are not “arbitrary and capricious” now. The
Service’s five-year review of the delta smelt was rational and fully supported by the
administrative record. Moreover, Federal Defendants do not concede that this Court even has
jurisdiction to hear Plaintiffs’ claims challenging the delta smelt recovery criteria.
The Service has indicated that “significant new information has been collected on the
status and life history” of the delta smelt and has expressed its opinion that “some of the original
recovery criteria are outdated and in need of revision.” While the Service may convene a
recovery team to review and revise these criteria in light of this new information, it will do so
when appropriate (and as its resources and other, more urgent matters permit) and it is not under
any legal obligation to do so at this time or by any particular deadline. As such, there is no basis
for the Court to remand these recovery criteria to the Service or to require the Service to revise
these criteria by a certain deadline (even if the Court had jurisdiction to do so, which Federal
Defendants maintain that it does not). Federal Defendants reject Plaintiffs’ implication, set out
above, that the Service has essentially conceded liability on these claims and that the parties are
merely negotiating the “terms and process” to revise these criteria. And while the parties have
discussed settlement and may continue to do so, Federal Defendants do not currently believe that
further delay to allow further settlement discussions is likely to be productive at this time.
797416.1 -5- JOINT STATUS CONFERENCE STATEMENT

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Nonetheless, under the circumstances, Federal Defendants believe that Plaintiffs’ proposal
to schedule a further status conference after 120 days is appropriate. As Plaintiffs note, such a
delay may allow the United States District Court for the District of Columbia to decide the
motion to transfer pending in the related case before that court. And to the extent that the Service
determines an appropriate schedule for any review of the existing delta smelt recovery criteria,
Plaintiffs’ second and third claims may effectively be rendered moot.
If the Court is not inclined to grant such a further delay, however, it is the position of
Federal Defendants that it would be appropriate at this time to set a schedule for the resolution of
all of Plaintiffs’ remaining claims by summary judgment. Federal Defendants propose that the
parties submit cross-motions for summary judgment on a staggered schedule: Plaintiffs would
submit their motion for summary judgment thirty (30) days after the Court entered its scheduling
order; Federal Defendants (and Defendant-Intervenors) would submit their opposition and cross-
motion for summary judgment thirty (30) days after that date; Plaintiffs would submit any reply
fifteen (15) days later; Federal Defendants (and Defendant-Intervenors) would submit any reply
fifteen (15) days after that; and, finally, oral argument would be set for the earliest possible date,
based on the convenience of the Court, after the close of this briefing. Federal Defendants submit
that such a schedule would allow for the timely and efficient resolution of Plaintiffs’ remaining
claims.
Respectfully submitted,
Dated: May 23, 2005 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD
A Professional Corporation
By /s/ Daniel J. O’Hanlon
Daniel J. O’Hanlon
Attorneys for Plaintiffs SAN LUIS & DELTA-MENDOTA
WATER AUTHORITY and WESTLANDS WATER
DISTRICT
797416.1 -6- JOINT STATUS CONFERENCE STATEMENT

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Dated: May 23, 2005 KELLY A. JOHNSON, Acting Assistant Attorney General
United States Department of Justice
Environment and Natural Resources Division
Dated: May 23, 2005
JEAN E. WILLIAMS, Chief
SETH M. BARSKY, Assistant Chief
/s/ James A. Maysonett (as authorized on 5/23/05)
JAMES A. MAYSONETT, Trial Attorney (D.C. Bar # 463856)
Wildlife and Marine Resources Section
Benjamin Franklin Station, P.O. Box 7369
Washington, D.C. 20044-7369
Telephone: (202) 305-0216
Facsimile: (202) 305-0275
Attorneys for Federal Defendants
/s/ Laura M. Robb (as authorized on 5/23/05)
LAURA M. ROBB (CA Bar No. 219677)
Earthjustice
426 17th Street, 5th Floor
Oakland, CA 94612
Telephone: (510) 550-6725
Facsimile: (510) 550-6749
Trent W. Orr (CA Bar No. 077656)
953 Clayton Street, #5
San Francisco, CA 94117
Telephone: (415) 665-2185
Facsimile: (415) 665-2592
Attorneys for Intervenors
797416.1 -7- JOINT STATUS CONFERENCE STATEMENT