Injunction Halts Federal BiOps

On May 11, U.S. District Judge Dale Drozd issued a preliminary injunction in two lawsuits brought against the Trump Administration by Attorney General Xavier Becerra on behalf of California’s Natural Resources Agency and Environmental Protection Agency and by a half-dozen environmental groups. The lawsuits allege the proposed water exports allowed under the new Biological Opinions signed by President Trump in February would cause irreparable harm to species protected by state and federal law. The new Biological Opinions establish a framework governing how much water the U.S. Bureau of Reclamation can move through the Delta for its Central Valley Project during specific periods of the year.

The preliminary injunction requires the federal government to return to the 2009 Biological Opinion status quo within 24 hours. The order came four days after a marathon session conducted via Zoom and telephonic appearances where Judge Drozd noted the complex nature of the cases.

In granting the State’s motion for preliminary injunction, the court concluded that while the proposed excess pumping may not cause immediate “extinction-level harms,” the long-term impacts could nonetheless be severe on the California Central Valley Steelhead during the May 11-31 period. However, the court denied California’s motion in all other respects as having been rendered moot by the court’s order and also denied Pacific Coast Federation of Fishermen’s Associations’ (PCFFA) request to enjoin operations on the Stanislaus River.

With respect to the plaintiffs’ likelihood of success on the merits as the cases move forward, the court stated the plaintiffs raised serious questions about whether National Marine Fisheries Service (NMFS) had articulated a satisfactory explanation for its new approach on the Inflow/Export Ratio contained in the Biological Opinions, but ultimately concluded that the record was too mixed for the court to conclude at this time that plaintiffs are clearly likely to be able to show that NMFS violated the Administrative Procedures Act.

The court also questioned how NMFS reached a “no jeopardy” conclusion after it acknowledged that similar impacts to endangered species will continue under the new framework given the evidence that the California Central Valley Steelhead population declined under the 2009 Biological Opinions. Judge Drozd questioned, “How can these loss limits effectively function to avoid irreparable harm to a declining steelhead population if those loss limits are expected to do no more than limit loss to levels similar to what has been observed over the past 10 years?”

With respect to irreparable harm, the court found that plaintiffs failed to provide proof as to the need for any injunctive relief with respect to Delta export operations past the end of May. For the May 11-31 period the court focused on California Central Valley Steelhead, accepting plaintiffs’ arguments that the loss threshold approach may not be sufficiently protective due to the declining population of steelhead relative to the population in the 2009-2018 period.

The court did not address harm to Delta smelt, longfin smelt, or salmon.