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On June 24, 2020, the United States District Court for the Eastern District of California denied the preliminary injunctive relief requested by a coalition of fishery and environmental groups (Plaintiffs) regarding the U.S. Bureau of Reclamation’s (Reclamation) operations of Shasta Dam and Reservoir, and related temperature management actions on the upper Sacramento River.  This denial followed the court’s previous May 11, 2020 order in the case granting a three-week injunction as to Central Valley Project (CVP) export pumping operations from the Sacramento-San-Joaquin Delta.

Plaintiffs sought the injunctive relief as part of their pending challenge to the validity of the 2019 federal biological opinions issued by the National Marine Fisheries Service (NMFS) and the U.S. Fish & Wildlife Service (FWS) for the long-term operation of the CVP and State Water Project (2019 BiOps).  Plaintiffs argued that the CVP operations covered under the 2019 BiOps would jeopardize the continued existence of Endangered Species Act (ESA)-listed species (including listed winter-run and spring-run Chinook salmon), and therefore the court should restore the previously controlling 2008 and 2009 BiOps that were in place prior to being replaced by the 2019 BiOps.  In this regard, Plaintiffs specifically requested that the court require Reclamation to perform certain actions as required under the 2009 NMFS BiOp in order to avoid alleged temperature dependent mortality to winter-run and spring-run salmon during the egg-to-fry life stage in the upper Sacramento River.

In evaluating the first prong of the analysis as to whether the requested injunctive relief was warranted, the court stated that it “will assume, without deciding, that plaintiffs raised a serious question going to the merits of the 2019 NMFS BiOp’s [temperature management system].”  (Emphasis added.)  The court then immediately addressed the next prong, emphasizing that “the inquiry turns to whether or not irreparable harm is likely in the absence of the granting of an injunction.”  The court narrowed the focus even further, crediting the Defendants’ clarifications that based on current conditions and operations plans, Plaintiffs’ motion only implicated temperature management for the last two weeks of September, despite Plaintiffs’ representations to the contrary.

The court ultimately held that Plaintiffs’ “motion fails . . . because the evidence presented to date does not indicate that the requested injunction is likely to materially improve conditions vis-à-vis the current operating regime for the species of concern.”  The court also noted that there is “significant scientific dispute” over the exact relationship between temperatures and listed salmon egg mortality, and noted that “the primary goal of the [2019 NMFS BiOp’s] tiered temperature management regime is to control temperatures at locations and times when winter-run eggs are the most vulnerable . . . based upon information about where and when winter-run redds are actually deposited/positioned during incubation.”  And, the court pointed to Plaintiffs’ reliance on “materially flawed” comparisons of “forecast” and “hindcast” models to estimate temperature dependent mortality that, as explained by the Defendant-Intervenors’ expert biologist, amounts to an “apples to oranges” comparison.

The court also acknowledged that the relationship between CVP water deliveries and temperature management is far more complex than Plaintiffs represented as part of their request for the court to reduce discretionary water allocations to CVP water service contractors (which are already being implemented this growing season).  In this regard, the court noted that: (1) discretionary CVP deliveries originate from a variety of sources other than just Shasta Reservoir; (2) nearly all water diversions by agricultural users occur downstream of the temperature compliance points on the Sacramento River, so water released from Shasta Dam for temperature management releases is available for diversion after meeting its temperature management purposes; and (3) as stated by Defendant-Intervenors’ operations expert, simply leaving water in Shasta Lake “does not translate directly into an equivalent amount of cold water in storage available for temperature management.”  As a result, the court concluded that it is speculative to assume that withholding “discretionary” water deliveries would materially improve temperature management options.  Ultimately, the court ruled that given “the absence of evidence that the granting of the requested injunction would benefit either of the species of concern this year, the court will not take the extraordinary step of interfering in this complex regulatory regime.”

The district court’s order is available here.

For additional information on this matter, please contact Andrew Hitchings at ahitchings@somachlaw.com.  Somach Simmons & Dunn serves as counsel of record for several Defendant-Intervenor parties in this case.

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