Endangered Species Law & Policy

On May 27, 2010, the United States District Court for the Eastern District of California issued findings of fact and conclusions of law (PDF) regarding Plaintiffs’ request for a preliminary injunction in The Consolidated Delta Smelt Cases, No. 09-407 (E.D. Cal. May 27, 2010).  The matter consists of five consolidated actions that all challenge the December 2008 biological opinion, jeopardy and adverse modification determinations, and reasonable and prudent alternative (RPA) for continued operation of the Central Valley Project (CVP) and State Water Project (SWP) issued by the Fish and Wildlife Service (FWS).  The CVP and SWP provide water for approximately 25 million Californians.

While the Court did not issue an order, it did indicate that the Plaintiffs had already succeeded on their National Environmental Policy Act claims and were likely to succeed on at least some of their Endangered Species Act claims.  Specifically, the Court determined that "FWS’s reliance on analyses [of the effects of the CVP and SWP] that utilize raw (as opposed to population-normalized) salvage data is an undeniable failure to use the best available scientific methodology."  Findings & Conclusions at 52.  Furthermore, the Court determined that Reclamation erred by failing to ensure that "the RPA utilized the best available science."  Id. at 116.

The Court is holding a hearing to address whether to issue an injunction on May 28, 2010.