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Delta Smelt Consol. Cases

ELR Citation: 40 ELR 20051
Nos. No. 1:09-cv-407, (E.D. Cal., 02/12/2010)

A district court denied water districts’ motion for a temporary restraining order against the implementation of a reasonable and prudent alternative (RPA) set forth in a NMFS biological opinion prepared pursuant to the ESA. The RPA, which put in place certain pumping restrictions, was implemented to address the impacts of a water project’s operations on the delta smelt. In considering the likelihood of success on the merits, the court held that, although the United States had failed to comply with NEPA, the court’s authority to issue an injunction against implementation of the RPA based on a NEPA violation is limited. Injunctive relief is precluded where enjoining government action allegedly in violation of NEPA might actually jeopardize natural resources. Nor may an injunction issue if it would cause violation of another law, here the ESA. Moreover, no ESA violation has been found in this case: the FWS scientists opine that jeopardy to the species and/or adverse modification of its critical habitat is imminent and occurring, while the districts’ experts have not discredited the FWS’ affirmative finding that that the implementation of the RPA is necessary to avoid jeopardy and/or adverse modification. Since the court is without authority to balance the equities under the ESA, the motion for a TRO is denied without prejudice.

[Prior decisions in this litigation can be found at 39 ELR 20120 and 39 ELR 20263]