Consolidated Delta Smelt Cases (812 F. Supp. 2d 1133, 2011)

United States District Court for the Eastern District of California 2011-08-31

The Public Health and Welfare

Citations

Full opinion text

FINDINGS OF FACT AND CONCLUSIONS OF LAW RE PLAINTIFFS’ REQUEST FOR INJUNCTIVE RELIEF AGAINST IMPLEMENTATION OF RPA COMPONENT 3 (Action 4) (Doc. 900)

OLIVER W. WANGER, District Judge.

I. INTRODUCTION

Plaintiffs State Water Contractors (“SWC”), Metropolitan Water District of Southern California (“MWD” or “Metropolitan”), Kern County Water Agency (“KCWA”) and Coalition for a Sustainable Delta (“Coalition”), San Luis & Delta Mendota Water Authority (the “Authority”) and Westlands Water District (“West-lands”) (collectively herein “Plaintiffs”), seek an injunction prohibiting the implementation of Reasonable and Prudent Aternative (“RPA”) Component 3, Action 4 (the “Fall X2 Action”) set forth in the United States Fish and Wildlife Service’s (“FWS”) December 15, 2008, biological opinion (“BiOp”), which addresses the impacts of the coordinated operations of the federal Central Valley Project (“CVP”) and State Water Project (“SWP”) on the threatened delta smelt (Hypomesus transpacificus). Doc. 900. The California Department of Water Resources (“DWR” or “Plaintiff Intervenors”) joined in Plaintiffs’ motion. Doc. 905. Federal Defendants and Defendant Intervenors opposed. Doc. 948. An evidentiary hearing on the motion was held on July 26, 27, 28, and 29, 2011. Docs. 998-1001. The parties were represented by counsel, as identified on the record.

Plaintiffs and Defendants submitted independent, lengthy proposed findings of fact and conclusions of law. Docs. 1004 & 1005. DWR and Plaintiffs also submitted notices of disapproval of Defendants’ proposed findings of fact and conclusions of law. Docs. 1008 & 1009.

After consideration of the testimony of the witnesses, the exhibits received in evidence, the written briefs of the parties, oral arguments, and the parties’ proposed findings of fact and conclusions of law, the following findings of fact and conclusions of law concerning the motion for injunctive relief are entered.

To the extent any of the findings of fact may be interpreted as a conclusion of law or any conclusion of law may be interpreted as a finding of fact, it is so intended.

II. BACKGROUND

A. The Challenged Action.

The 2008 Smelt BiOp, prepared pursuant to Section 7 of the Endangered Species Act (“ESA”), 16 U.S.C. § 1536(a)(2), concluded that “the coordinated operations of the CVP and SWP, as proposed, are likely to jeopardize the continued existence of the delta smelt” and “adversely modify delta smelt critical habitat.” Ex. 1 (“BiOp”) at 276-78. As required by law, the BiOp includes the RPA designed to allow the projects to continue operating without causing jeopardy to the species or adverse modification to its critical habitat. Id. at 279-85. The RPA includes various operational components designed to reduce entrainment of smelt during critical times of the year by controlling exports out of and water flows into the Delta. Id.

At issue in this case is Component 3 (Action 4), which is designed to improve habitat for delta smelt growth and rearing, and requires sufficient Delta outflow to maintain a monthly average location of two parts per thousand salinity (“X2”) no greater (more eastward) than 74 kilometers from the Golden Gate Bridge in “wet” water years and 81 kilometers from the Golden Gate Bridge in “above normal” water years. Id. at 282-83, 369. The average monthly location of X2 in the fall must be maintained in September and October (in November, the Fall X2 Action requires the Projects to adjust their upstream reservoir releases to prevent the storage of inflow) in accordance with an “adaptive management process” to be overseen by FWS. Id. at 282-83. The estimated cost to water users is 670,000 acre feet (“AF”) of water if 2012 is a critically dry or dry year, or 300,000 AF if 2010 is a below normal or above normal year.

B. Relevant Prior Rulings.

A December 14, 2010 Memorandum Decision Re Cross Motions for Summary Judgment (“12/14/10 MSJ Decision”), Doc. 757, San Luis & Delta-Mendota Water Auth. v. Salazar, 760 F.Supp.2d 855 (E.D.Cal.), rejected some of Plaintiffs’ challenges to the BiOp’s rationale for the Fall X2 action, but found that the BiOp’s X2 analysis was flawed in two critical respects. The rationale for the action rested in large part on a comparison of runs from two different computer models for Project operations, Calsim II and Dayflow. The Decision found that, in the absence of calibration of the two models, which was not performed, “the Calsim II to Dayflow comparison has the potential to introduce significant, if not overwhelming, bias to the analysis that the BiOp nowhere discussed or corrected.” Id. at 922. The X2 action was remanded to the agency for further consideration of the implications of this error to the BiOp’s findings. Id. at 913.

The Decision further held that the BiOp violated the Administrative Procedure Act’s (“APA”) requirement that FWS “examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made,” Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983), as well as FWS’s own Consultation Handbook implementing the ESA, which requires “a thorough explanation of how each component of the [RPA] is essential to avoid jeopardy and/or adverse modification,” ESA Handbook at 4-43, because the BiOp “fail[ed] to explain why it is essential to maintain X2 at 74 km and 81 km respectively, as opposed to any other specific location.” Id. at 922-23. The practical result of the X2 Action is to allow large volumes of Project water to escape into the ocean.

A June 24, 2011 memorandum decision addressed Federal Defendants’ and Defendant Intervenors’ objection that this Court lacked jurisdiction to consider Plaintiffs’ request for injunctive relief because an appeal was pending on related issues. Relying on Natural Resources Defense Council v. Southwest Marine Inc., 242 F.3d 1163, 1164 (9th Cir.2001), for the governing standard, the June 24, 2011 Decision found that Southwest Marine stands generally for the following propositions:

(1) A district court may act to preserve the status quo while an appeal is pending.

(2) The status quo is measured at the time the appeal is filed.

(3) The district court may only act to effectuate the underlying purposes of the original judgment and may not materially alter the status of the appeal or change the core questions before the appellate panel.

(4) It is impermissible to alter the status of the case on appeal by taking further action that cannot be undone by the appeal. In other words, the district court’s post-appeal action must be grounded upon an issue that will receive a full and fair hearing before the appellate panel, leaving the burdened party’s substantial rights unaffected if a reversal is issued.

Doc. 930 at 8. These principles apply to this case in the following way:

The first step is to determine the status quo. Federal Defendants point out that the BiOp and its RPA has been remanded but not vacated. Therefore, they argue that the status quo is operation of the projects pursuant to the RPA (in-eluding the Fall X2 Action) as described in the BiOp. This position is a material distortion of the record and cannot be adopted for two reasons. First, Plaintiffs indicated their intent to move for injunctive relief against the Fall X2 Action long before Final Judgment was entered or the appeal was filed. Defendants strenuously resisted immediate injunctive proceedings on the Fall X2 Action when a hearing was requested by Plaintiffs, on the ground that, at the time, it was not clear whether the Bureau would implement the Fall X2 Action during the 2010-2011 water year; i.e., it was premature for the district court to entertain an application for injunctive relief before it was certain the Fall X2 Action would be implemented based on this water year’s hydrology. Second, the 12/14/2010 Decision found the X2 Action was unlawful and unjustified on several grounds. This Fall X2 Action is unprecedented and had never before been implemented. Remand was ordered with the Court’s understanding that any future unlawful action in Project operations would be the subject of provisional remedy proceedings. In remanding without vacature, the Court understood that, as has been the case throughout the over five years of active litigation over the Delta Smelt, as operational issues arise, the parties may seek and have sought provisional remedies during periods of remand of biological opinions to the Agency. The parties that sought remand without vacatur never disclosed they intended to argue that a remand without vacatur insulated CVP operations from judicial review during an appeal.

The disputed Fall X2 Action has never been triggered. The status quo as of the filing of the appeal on April 7, 2011 is that the implementation of the Fall X2 Action is an unprecedented possibility, which is projected to take one million acre feet of water from lawful users, and that Plaintiffs would have the opportunity to move to enjoin the Action if its implementation was reasonably certain. The next inquiry is whether acting upon Plaintiffs’ request for injunctive relief would effectuate the underlying purposes of the original judgment. The answer is unquestionably yes. The judgment found the Fall X2 Action was unlawful in a critical respect, namely that the unprecedented specific water prescription imposed, which requires huge amounts of Project yield, was unjustified by the record. Permitting the Action to be implemented without even considering the totality of its on-the-ground consequences would undermine the purposes of the judgment and the obligation of a court sitting in equity to protect all competing human interests, health, and safety, not only the species. The district court may not materially alter the status of the appeal, change the core questions before the appellate panel, and/or take further actions that cannot be undone by the appeal. Defendants argue that that Plaintiffs’ merits brief rehashes issues already decided in the 12/14/2010 Decision. A preliminary review of the opening merits brief, Doc. 990, reveals that there is considerable overlap between the arguments there advanced and those addressed in the 12/14/10 Decision. Southwest Marine and related cases prohibit the district court from reconsidering issues already ruled upon, as this would impermissibly create a “moving target” for the appeal. See Britton v. Co-Op Banking Group, 916 F.2d 1405, 1412 (9th Cir.1990) (discussing the example of McClatchy Newspapers, in which the district court’s modification of an order “reflected a change in the result of the very issue on appeal; if allowed to stand, the appeals court would be dealing with a moving target if it ruled on the revised order or, alternatively, its ruling would be obsolete if it ruled on the ‘old’ order”).

However, the procedural posture of the cross-motions for summary judgment is distinct from a request for injunctive relief. The 12/14/2010 Decision ruled in favor of Plaintiffs and found the Fall X2 Action unlawful. Consideration of whether injunctive relief is required to prevent new, never imposed, operational prescriptions which may cause irreparable injury will not revisit or in any way modify the final judgment. Nor does the pending appeal preclude consideration of the strength of the scientific bases for the X2 Action in deciding a request for equitable relief. Considering whether the scientific rationale for an action is weak is legally distinct from finding that the agency violated the APA in advancing such a rationale.

Hoffman for and on Behalf of N.L.R.B. v. Beer Drivers and Salesmen’s Local Union No. 888, 536 F.2d 1268 (9th Cir.1976), explains that the general rule that an appeal to the circuit court deprives the district court of jurisdiction as to matters involved in the appeal “is not a creature of statute and is not absolute in character.”

It is our opinion that the rule should not be applied in those cases where the district court, as here, has a continuing duty to maintain a status quo, and where, as the days pass, new facts are created by the parties and the maintenance of the status quo requires new action.

Id. at 1276. This is such a case. New facts are constantly being created by environmental conditions and continuing operating requirements of the Projects. Such requirements may change hourly. Maintenance of the status quo may require changes to Project operations. The appeal does not remove the district court’s jurisdiction over the BiOp’s remand to the Agency and the ongoing operation of a federal Reclamation project.

Id. at 8-12.

The hearing on Plaintiffs’ motion for injunctive relief was confirmed, four days of testimony was taken, and proposed findings have been submitted.

III. SUMMARY OF MOTION

Plaintiffs and DWR request injunctive relief on the following grounds:

• Federal Defendants intend to implement the Fall X2 Action beginning on September 1, despite the Court’s determination that FWS acted arbitrarily and capriciously, and failed to use the best available science when it developed the Fall X2 Action. Plaintiffs assert that enjoining Federal Defendants’ attempt to do so is an appropriate remedy to enforce this Court’s Orders and Judgments and to maintain the status quo.

• Plaintiffs have already succeeded on the merits of their ESA and National Environmental Policy Act (“NEPA”) claims, and the balance of hardships and public interest support the requested injunction. Plaintiffs will suffer irreparable harm from the significant amount of water that will be lost if Federal Defendants impose the Fall X2 Action this year. By contrast, the best available scientific data do not show that the location of X2 bears a rational relationship to the subsequent abundance of delta smelt, or is necessary to avoid adverse modification to its critical habitat. To the contrary, the best available scientific ■ data show that enjoining the Fall X2 Action will not jeopardize the species or adversely modify its critical habitat.

IV. STANDARD OF DECISION

A. General Injunctive Relief Requirements.

Injunctive relief, whether temporary or permanent, is an “extraordinary remedy, never awarded as of right.” Winter v. Natural Resources Defense Council, 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The standard test for injunctive relief requires establishment of four factors by a preponderance of the evidence:

1. Likelihood of success on the merits;

2. Likelihood the moving party will suffer irreparable harm absent injunctive relief;

3. The balance of equities tips in the moving parties’ favor; and

4. An injunction is in the public interest.

Winter, 555 U.S. at 20, 129 S.Ct. 365; Am. Trucking Ass’n v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir.2009).

Here, however, Plaintiffs seek post-judgment injunctive relief, after they prevailed in the lawsuit, which is governed by a modified standard that requires a plaintiff establish:

(1) that it has suffered an irreparable injury;

(2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury;

(3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and

(4) that the public interest would not be disserved by a permanent injunction.

Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1184 (9th Cir.2001) (citing eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006)).

B. Scope of Review; Deference to Agency Action.

In an injunctive relief proceeding, even in an APA case, a court is not limited to a review of the record. E.g., Nat’l Parks & Conservation Assn. v. Babbitt, 241 F.3d 722, 738 (9th Cir.2001) (Ninth Circuit considered evidence of species impacts not before the district court); Ctr. for Biological Diversity v. Wagner, 2009 WL 2176049, *6 (D.Or.2009) (“[e]xtra-record evidence may also be considered in relation to a request for injunctive relief’); N. Plains Resource Council v. Bureau of Land Mgmt., 2005 WL 6258093, *1, 2005 U.S. Dist. LEXIS 25238, *3-*4 (D.Mont.2005) (district court held an evidentiary hearing with witnesses and exhibits on the appropriate scope of injunctive relief pending completion of the remand), aff'd, N. Cheyenne Tribe v. Norton, 503 F.3d 836 (9th Cir.2007); Natural Res. Def. Council v. Norton, 2007 WL 14283, *5 (E.D.Cal. Jan. 3, 2007) (“post-decisional information might be relevant in the context of a motion for interim injunctive relief’).

In reviewing a claim brought under the ESA and/or APA, a court must defer to a federal administrative agency’s reasoned opinions within its field of expertise. This deferential standard has been articulated numerous times in these consolidated cases, see, e.g., 12/14/2010 MSJ Decision, San Luis v. Salazar, 760 F.Supp.2d at 869-70, and is incorporated by reference. However, in a post-judgment injunctive relief proceeding, a court is not bound by the same deferential standard. The Ninth Circuit reasoned in Sierra Forest Legacy:

Although the federal government is undoubtedly permitted to follow its own experts when making a decision, federal experts are not always entitled to deference outside of administrative action ....

... It is reasonable that courts would defer to particular experts when the government has unique expertise, in fields such as national security or the internal functioning of the military. However, Winter applied no such deference concerning the possibility that sonar testing would irreparably harm whales. See id. at 383-84. Ecology is not a field within the unique expertise of the federal government.

If the federal government’s experts were always entitled to deference concerning the equities of an injunction, relief against federal government policies would be nearly unattainable, as government experts will likely attest that the public interest favors the federal government’s preferred policy, regardless of procedural failures.

646 F.3d at 1185-86 (citations omitted). The government cannot hide behind and is not entitled to deference in this de novo injunctive relief proceeding.

V. FINDINGS OF FACT

A.The Agency Action.

1. The agency action is the coordinated operation of the CVP and SWP, pursuant to an Agreement for the Coordinated Operation of the two projects (“COA”).

2. According to the Rivers and Harbors Act of 1937, the dams and reservoirs of the CVP “shall be used, first, for river regulation, improvement of navigation and flood control; second, for irrigation and domestic uses; and, third, for power.” 50 Stat. 844, 850 (Aug. 26,1937).

3. The CVP was reauthorized in 1992 through the Central Valley Improvement Act (“CVPIA”), which modified the 1937 Act and added mitigation, protection, and restoration of fish and wildlife as co equal project purposes. Pub. L. 102-575 § 3402, 106 Stat. 4600, 4706 (1992). One of the stated purposes of the CVPIA is to address impacts of the CVP on fish and wildlife. Id. at § 3406(a). The CVPIA made environmental protection and water deliveries co-purposes.

B. Facts Relevant to NEPA Claim.

4. It is undisputed that neither FWS nor Reclamation engaged in any NEPA analysis in connection with preparation or implementation of the 2008 Smelt BiOp. This has been found unlawful.

5. It is also undisputed that on November 13, 2009, the Court entered an Order granting San Luis Plaintiffs’ motion for summary judgment on their claim that Federal Defendants violated NEPA when they implemented the 2008 Smelt BiOp without conducting the required NEPA analysis. Doc. 399.

6. Federal Defendants did not engage in a systematic consideration of impacts to the human environment and/or consideration of alternatives that took into account those impacts, ordinarily performed as part of a NEPA review.

C. Wet Conditions in 2011 Will Trigger Implementation of Fall X2.

7. The 2011 water year is classified as a wet year. Ex. 301, Leahigh Deck at ¶ 12. Wet and above normal water years trigger implementation of the Fall X2 Action, which requires that X2 be maintained at a monthly average position of not greater than 74 km (in wet years) or 81 km (in above normal years) eastward of the Golden Gate Bridge. BiOp at 282-83.

8. While the Fall X2 Action is not formally triggered until September 1, the Projects would need to alter their reservoir release patterns as early as the second week in August to ensure that the 74 km requirement could be met in September. Ex. 301, Leahigh Deck at ¶ 21; 7/28/11 Tr. at 196:23-197:3 (Milligan).

9. FWS and the Bureau have announced that they will implement the Fall X2 action starting in September 2011.

D. Status of the Species.

(1) Abundance Trends.

10. The delta smelt was listed as a threatened species under the ESA on March 5, 1993. 58 Fed. Reg. 12,584 (March 5, 1993). Critical habitat was designated for the delta smelt on December 19, 1994. 59 Fed. Reg. 65,256 (Dec. 19, 1994). FWS recently determined that delta smelt warranted uplisting from threatened to endangered, but that the action was currently precluded by higher priority listing actions. 75 Fed. Reg. 17,667 (Apr. 7, 2010).

11. The most recent Fall Midwater Trawl (“FMWT”) data available, from 2010, show an index value of 29. Ex. 503. Although this is an increase over the 2009 value of 17, it is still well below the lowest pre-2003 value of approximately 100, as are the other six of the past seven years. Id.

12. The 2011 Summer Townet Survey (“STS”) indicated a slight improvement over the previous year’s index value (up to 2.2 from 0.8). Ex. 507 at 2.

13. Plaintiffs suggest that this index value is artificially low because it does not account for nearly 60% of the estimated Delta-wide population found at the Cache Slough, Sacramento Deepwater Fish Channel, and Liberty Island areas (“Cache Slough Complex”), which were not included in the annual survey used to calculate the index. However, even if the index accounted for this additional population, no party contends that the delta smelt should not be listed under the ESA.

14. Evidence presented at the hearing suggests that the estuary does not support as many delta smelt as it once did. 7-29-11 Tr. at 105:4-14 (Nobriga). This may be because the “compensatory density-dependence” that historically enabled juvenile abundance to rebound from low adult numbers no longer exists. Ex. 505, Nobriga Decl. at ¶ 20. Thus, now, if adult numbers or adult fecundity decline, juvenile production will also decline. Id. (citing Kimmerer (2011)). Because juvenile carrying capacity has declined, juvenile production hits a “ceiling” at a lower abundance than it once did. Id. This limits adult abundance and possibly fecundity, which cycles around and limits the abundance of the next generation of juveniles. Id. •

15. Exhibit 504 demonstrates an abrupt change in population dynamics starting in the early 2000s:

16.The movement of the arrow toward the origin of the axes indicates that the risk of extinction to delta smelt has increased. Once the arrow reaches the origin, it indicates that no delta smelt are detected in any of the fish sampling trawls. 7-28-11 Tr. at 104:4-11 (Feyrer).

(2) Critical Habitat.

17. The delta smelt’s designated critical habitat is composed of four primary constituent elements (“PCEs”) that the BiOp found were significantly degraded by normal CVP and SWP project operations in the Fall. 7-29-11 Tr. at 178:12-179:13 (Norris); see also BiOp at 190-202, 239-244.

18. More specifically, the PCEs essential to the conservation of the delta smelt are physical habitat, water, river flow, and salinity concentrations required to maintain delta smelt habitat for spawning, larval and juvenile transport, rearing, and adult migration. Ex. 502, Norris Decl. at ¶ 22; see also BiOp at 190-202, 239-244.

19. The BiOp found that these PCEs are not located at all places within the delta smelt’s designated critical habitat at all times. 7-29-11 Tr. at 177:16-20 (Norris). This is significant because features of delta smelt critical habitat may exist independently throughout the designation, but they only meet their intended conservation purpose when they coincide in space and during the life stage for which those features are required. Id. at 178:12-179:3 (Norris).

20. Under the ESA, the adverse modification threshold is exceeded when the proposed action will adversely affect the critical habitat’s PCEs, or their management, in a manner likely to appreciably diminish or preclude the role of the designated critical habitat in the conservation of the species. Ex. 502, Norris Decl. at ¶ 20.

21. The BiOp found that the proposed continued operations of the CVP and SWP would adversely modify the delta smelt’s critical habitat by preventing it from serving its intended conservation role by degrading its PCEs and by limiting the co-occurrence of the PCEs at appropriate places and times. Id. at ¶ 23.

(3) Relationship of the Delta Smelt Population to X2.

22. Salinities in the Delta are typically measured as parts per thousand (ppt) or practical salinity units (psu), which are equivalent measures. 7/28/11 Tr. at 182:11-15 (Feyrer). The term “X2” refers to a salinity of 2 ppt or 2 psu. “Ocean salinity is usually around 33 psu.” Ex. 578, Nobriga and Herbold (2009), at 19.

23. Delta smelt are believed to typically reside in the low salinity zone. Ex. 501, internal Exhibit B. Laboratory studies indicate that delta smelt are physiologically capable of tolerating salinities up to 19 psu, at which point, the salinity level becomes lethal. Tr. 7/28/11 at 182:24-183:8 (Feyrer). Nobriga and Herbold state: “In captivity, delta smelt can tolerate salinities as high as 10 psu for extended periods (Swanson et al. 2000) but long-term monitoring shows that most juvenile delta smelt reside where specific conductance is about 1,000-10,000 microsiemens per centimeter, (about 0.6-6.0 psu).” Ex. 578, Nobriga and Herbold (2009), at 19.

24. When X2 is at 79km or 80km, some individual delta smelt can be found at higher salinity areas in Suisun Bay and Grizzly Bay. 7-28-11 Tr. at 213:14-19 (Feyrer). Mr. Feyrer also acknowledged that delta smelt can live their lives entirely in freshwater. Tr. 7/28/11 at 179:8-10.

25. Although delta smelt occupy a range of salinity and water clarity levels, the probability of observing a delta smelt is greatest at low salinities, centering on about 2 psu, and at relatively high levels of turbidity. Ex. 501, Feyrer Decl. ¶ 9; see also Ex. 586, Feyrer et al. (2007) (“Feyrer (2007)”), at 7 (AR 18272) (Figure 4(c)). According to Mr. Feyrer most delta smelt are typically caught in salinities between zero (freshwater) and 7 psu. 7/28/11 Tr. 186:17-187:9. Dr. Hanson testified that most delta smelt typically occupy areas between zero (freshwater) and “about 7 or 8 parts per thousand.” 7/27/11 Tr. at 19:23-20:6. The probability of observing a delta smelt decreases as salinity increases above X2. 7-29-11 Tr. at 83:7-84:3 (Feyrer).

26. Several published studies, including Sommer et al. (2011) have demonstrated that the center of delta smelt distribution is at approximately the two parts per thousand isohaline, except during winter and spring for migration and spawning in freshwater. Ex. 501, internal Exhibit B.

27. This phenomenon is displayed graphically in the figure below, Figure 1 in Mr. Feyrer’s declaration, which displays the empirically measured center of delta smelt distribution plotted against the location of X2, in a tight-fitting relationship:

Ex. 501, Feyrer Decl. at ¶ 9.

28. Dr. Hanson stated that he did not disagree with this figure or that delta smelt distribution centers on X2. 7-27-11 Tr. at 79:1-2. However, he noted that the “centroid” or “center of distribution” is not necessarily the area of greatest concentration, but rather is an index representing a weighted middle point based upon overall distribution. 7-27-11 Tr. at 29:13-17. For example, the “centroid” of the United States — or the center of human distribution in the country — might be Iowa, but that does not mean that the centroid is the area of greatest concentration. See id. at 29:18-21 (Hanson). Dr. Hanson opined: “there are other facets of the distribution that need to be taken into account in order to interpret whether that’s a meaningful metric.” Id. at 29:24-30:1.

29. Dr. Hanson testified about a related issue: whether Fall X2 is related to the geographic distribution of delta smelt. He examined whether (1) when X2 is located between 70km and 75 km, the geographic distribution of smelt will expand; and (2) correspondingly, when X2 moves east into the narrower channels of the Sacramento River, the geographic distribution of smelt will contract. 7-27-11 Tr. at 10:11-25, 11:15-16 (Hanson); Ex. 103, figure depicting experimental inquiry. He also examined whether there was a relationship between the surface area of appropriate smelt abiotic habitat and smelt distribution. Id.

30.Dr. Hanson concluded the range of smelt distribution shifts further downstream when X2 is located further to the west and shifts further upstream when X2 is located to the east. 7-27-11 Tr. at 27:12-15 (Hanson). This range encompasses a broad geographic area spanning approximately 40 kilometers from Suisun Bay and Grizzly Bay in the west, to the Cache Slough Complex upstream to the north, regardless of the location of X2 in the fall or the extent of the “habitat area” depicted in Figure B-17 in the BiOp. 7-27-11 Tr. at 27:15-21 (Hanson); Ex. 102; 7-29-11 Tr. at 43:7-46:24 (Feyrer); Ex. 154, 155. Dr. Hanson concluded that moving the location of X2 westerly in fall months does not increase the area of habitat utilized by delta smelt. 7-27-11 Tr. at 27:22-28:6 (Hanson).

31. Defendants criticize Dr. Hanson’s analysis in a number of ways:

(a) According to Dr. Norris, one of the asserted purposes of the Fall X2 Action is to locate the centroid of the delta smelt population within the more productive areas of the estuary. Ex. 502, Norris Decl. at ¶24. Although Dr. Hanson’s distribution maps did visually depict the relative number of smelt caught at each station, Ex. 100, Hanson Decl., Internal Exhibits la-e, Dr. Hanson’s measurements of the breadth of smelt distribution looked only at the range of sites at which the mere presence of delta smelt was detected in survey data, and did not weight the catch in any way to account for the relative number of smelt caught at each station.

(b) Defendants also assert that Dr. Hanson’s analysis is flawed because it is based on a comparison of disparate data sets. Specifically, Dr. Hanson compared FMWT data showing the location of smelt captures in the estuary to data showing a two-month average location of X2. 7-27-11 Tr. at 81:12-82:17. This comparison is of little utility in determining the relationship between smelt distribution and the location of X2 because using a two-month average location of X2 does not account for the location of X2 at the precise moment the smelt were captured. Id. at 82:15-17. Indeed, Dr. Hanson could not rule out the possibility that the smelt were located at X2 at the time they were captured. Id. at 81:25-83:18.

(c) Defendants also maintain that Dr. Hanson formed a substantial portion of his opinion regarding the Fall X2 Action based on a small and unrepresentative subset of the available data. Ex. 501, Feyrer Decl. at ¶25. Specifically, Dr. Hanson states that he used data from 1990, 1996, 2002, 2003, 2005, 2006 and 2008. Ex. 100, Hanson Decl. at ¶ 20. This is only a handful of the 43 years of available data. Although Dr. Hanson states in a footnote that “[t]hese years were selected as examples of the geographic distribution of smelt under various hydrologic conditions,” id. at 14 n. 3, Defendants argue they do not represent relevant hydrological conditions. FWS only prescribed the Fall X2 Action to be implemented following springs classified as either wet or above normal. For unknown reasons, the seven years of data that Dr. Hanson chose “as examples of the geographic distribution of smelt under various hydrologic conditions,” id., included only a single example following a wet spring (1996) and a single example following an above normal spring (2006). Ex. 501, Feyrer Decl. at ¶ 25. In fact, of the 43 years of data available, 23 are years which follow a wet or above normal spring. Id. It is also unexplained why Dr. Hanson excluded 91% (21 of 23 years) of data points are appropriate.

(d) At best, Dr. Hanson’s work on smelt distribution is valuable only to demonstrate that the breadth (in kilometers spanned) of smelt distribution does not shift dramatically as X2 shifts. It does not address how either the centroid or the majority of the smelt population moves with X2.

32. The 12/14/10 MSJ Decision found that X2. can rationally be used as a surrogate for delta smelt habitat. San Luis v. Salazar, 760 F.Supp.2d at 918 (holding that “when all the disputed X2 studies are considered, X2 has a measurable effect on smelt abiotic habitat”); id. at 918 n. 32 (“while X2 does not explain everything, it explains enough to consider X2 a proxy for critical habitat and to structure management prescriptions around X2”).

33. The 2009 independent peer review conducted under the Information Quality Act (“IQA”) determined that “hydrological events and actions that alter the [fall] X2 location directly impact suitable delta smelt abiotic habitat.” Ex. 580 at 14. The IQA peer reviewers “strongly concur[red] with the USFWS’s use of X2 as an index for identifying delta smelt abiotic habitat,” finding that the “X2 index is extremely well supported and scientifically valid” and that “few ecological indices are as robust and well studied as X2.” Id. In addition, DWR’s own scientist, Dr. Ted Sommer, and others reiterated in a published and peer-reviewed journal article in 2011 that the “pre-migration distribution [of delta smelt] occurs in the low-salinity zone of the estuary as illustrated by the strong association between fish distribution and X2 during fall.” Ex. 501, Feyrer Dele., Internal Exhibit B, at 8 of 17.

E. Federal Defendants’ Scientific Justification for the Fall X2 Action.

(1) Fall X2 Action and the Habitat Needs of the Smelt.

34. It is undisputed that during the fall, delta smelt are maturing pre-adults. They “live in the western portion of the estuary typically centered on the low salinity zone. That’s the time of the year where they’re growing and maturing into adulthood and preparing for their upstream migration for spawning.” 7-28-11 Tr. at 110:17-21 (Feyrer). During this time, they “need enough food, enough calories to be able to grow, mature and start to produce eggs and to survive and make their way upstream and spawn again.” Id. at 110:24-111:2 (Feyrer). If delta smelt do not eat enough prey and obtain sufficient caloric intake during this period, the species’ overall reproduction could be impaired, and individual delta smelt “could produce less or fewer eggs or it might not even be able to reproduce at all.” Id. at 111:3-12 (Feyrer). All else being equal, a female delta smelt that obtains more calories (prey) will grow larger and produce more eggs than a female delta smelt that obtains insufficient calories. Id. at 112:5-10 (Feyrer).

35. Mr. Feyrer opined that if delta smelt have access to more space, they will have more opportunity to encounter and consume prey than in an area where their habitat is more physically constricted. Id. at 112:11-17 (Feyrer). He further opined that delta smelt have increased opportunity to encounter and eat prey west of the confluence of the Sacramento and San Joaquin rivers, and less opportunity to encounter and eat prey at or east of the confluence. Id. at 111:18-112:4 (Feyrer).

36. The Fall X2 Action is designed to redistribute the current year’s population of delta smelt into Suisun Bay, thereby increasing opportunities for feeding and rearing by increasing the ability of individuals to find food and avoid predation. Ex. 502, Norris Decl. at ¶ 17. Specifically, the Action, which requires increased Delta outflow, is designed to influence the spatial distribution of delta smelt so that it will overlap with biologically productive regions like Suisun Marsh, increasing opportunities for feeding and growth. Id. This repositioning is also designed to enhance the ability of pre-spawning delta smelt to escape predation because predation risk is lower in more turbid waters. Id.

37. FWS concluded that the ability of designated critical habitat to provide for the conservation of the delta smelt is compromised when the low salinity zone is disconnected from biologically productive areas that maximize the species’ opportunity to find and consume prey, such as Grizzly Bay and Suisun Bay and Suisun Marsh areas, which are broader and shallower than the upstream confluence of the Sacramento and San Joaquin rivers. Id. at ¶ 24; see also 7-29-11 Tr. at 108:20-109:4 (Nobriga).

38. FWS also concluded that when the low salinity zone is upstream of the confluence, turbidity is lower than in the Grizzly Bay and Suisun Bay and Suisun Marsh areas, making it more difficult for delta smelt to avoid predation. Ex. 502, Norris Decl. at ¶ 24.

(2) The Delta Smelt Habitat Index.

39. To support the above-described conclusions regarding the Fall X2 action, the BiOp relies almost exclusively on work by a Bureau of Reclamation scientist, Frederick Feyrer:.

40. The 12/14/10 MSJ Decision described the Feyrer’s 2007 paper relied upon in the BiOp.

[T]he BiOp’s reli[ed] on a 2007 Canadian Journal of Fisheries and Aquatic Sciences paper by Feyrer, Nobriga, and Sommer, three scientists then working for Plaintiff DWR, entitled, “Multidecadal trends for three declining fish species: habitat patterns and mechanisms in the San Francisco Estuary, California, USA.” AR 018266-77. That paper used a generalized additive model to assess the relationship between changes in environmental quality for delta smelt (particularly salinity and turbidity) and the abundance of delta smelt. Id.

The paper demonstrated that a statistically significant relationship existed between salinity and turbidity in the fall months and the abundance of juvenile delta smelt the following summer for the period of 1987-2004. Id. This time period was chosen because it corresponded to the invasion of the Corbula amurensis clam which has resulted in significant ecological changes to the Delta. AR 018270. The results demonstrated that 63 percent of sampling stations showed statistically significant declines in environmental quality in the fall, with the western and southeastern regions of the Delta suffering the most substantial long term declines in habitat quality, while the area at the confluence of the Sacramento and San Joaquin Rivers least affected by the changes in fall habitat quality. Id.

The Feyrer (2007) analysis uses the results of a 2005 study by William Bennett published in the Journal of San Francisco Estuary and Watershed Science, which concluded: “Factors defining the carrying capacity for juvenile delta smelt are unknown, but may include a shrinking volume of physically suitable habitat combined with a high density of competing planktivorous fishes during late summer and fall.” AR 017004.

The BA acknowledged the results of this 2007 study, including the conclusion that fall habitat conditions have population level effects:

Based on a 36-year record of concurrent midwater trawl and water quality sampling, there has been a long-term decline in fall habitat environmental quality for delta smelt (Feyrer et al. 2007). The long-term environmental quality declines for delta smelt are defined by a lowered probability of occurrence in samples based on changes in specific conductance arid Secchi depth. Notably, delta smelt environmental quality declined recently coinciding with the POD (Figure 7-8). The greatest changes in environmental quality occurred in Suisun Bay and the San Joaquin River upstream of Three Mile Slough and southern Delta (Figure 7-9). There is evidence that these habitat changes have had population-level consequences for delta smelt. The inclusion of specific conductance and Secchi depth in the delta smelt stock-recruit relationship described above improved the fit of the model, suggesting adult numbers and their habitat conditions exert important influences on recruitment.

AR 010626; see also AR 10628-29 (reproducing maps and graphics showing habitat declines and geographic distribution of declines from Feyrer (2007)).

The conclusions in Feyrer (2007) were also recognized in the January 2008 report on the Pelagic Organism Decline by the Interagency Ecological Program, which reached nearly identical conclusions about the effects of declining fall habitat quality on delta smelt abundance. See AR 016938, 016954, 016957.

San Luis v. Salazar, 760 F.Supp.2d at 915-16.

A 2011 paper published in the Journal of Estuaries & Coasts, Feyrer et al. (2011) (“Feyrer (2011)”), built upon this and other previous work by Feyrer. Using FMWT survey data, Feyrer (2011) developed an abiotic habitat index, which incorporates both quantity and quality of abiotic habitat. Ex. 501, Feyrer Decl. at ¶ 10; see also Ex. 7, Feyrer (2011). The index represents the surface area of the estuary standardized for salinity and water clarity conditions that are favored by delta smelt. Ex. 501, Feyrer Decl. at ¶ 10. The index represents the statistically-computed probability of observing a delta smelt at the observed salinity and water transparency conditions. Id. The habitat index is represented in the following figure:

Ex. 501, Feyrer Decl. at ¶¶ 12-13.

41. In this image, “[t]he darker the shading means the higher suitability or the better it is for delta smelt.” 7-28-11 Tr. at 122:2-3 (Feyrer). When the nominal location of X2 lies at 85 km, most of Suisun Bay and its turbid subsidiary bays, and biologically important parts of Suisun Marsh, are poorly suitable habitat according to the habitat index. Ex. 501, Feyrer Decl. at ¶¶ 12-13. The figure also shows that quality and quantity of delta smelt habitat increases as X2 moves westward toward Suisun Bay and Grizzly Bay. Id.

42. When explaining the image and the study’s findings, Mr. Feyrer testified that “when X2 is located upstream of the confluence there, the habitat space for delta smelt and the habitat quality is much more restrictive compared to when X2 is to the west of the confluence. And when X2 is located west of the confluence, that opens up the low salinity zone and delta smelt habitat to those broad shoals in Suisun Bay and other areas, so there’s just a lot more and a lot more suitable habitat for delta smelt.” 7-28-11 Tr. at 122:9-16 (emphasis added).

43.The authors of Feyrer (2011) utilized fish catch data, salinity data, and turbidity data that were taken at the same place and time. See 7-28-11 Tr. at 115:12-18 (Feyrer). The study found “substantial decline in that habitat index over time.” Id. at 120:10-11 (Feyrer); see also Ex. 7, Feyrer (2011), at 8 (“deterioration of habitat represents a major issue for delta smelt because of its vulnerability to extinction”).

(3) Link Between Habitat Index and Delta Smelt Abundance Described in Feyrer Papers.

44. Feyrer (2007) concluded that incorporating abiotic habitat covariates into a basic stock-recruit model linking the abundance of sub adult delta smelt (as measured in the FMWT) to juvenile production (as measured in the STS) improved the fit of the model. Ex 586 at 6 (AR 18271) (Feyrer (2007)); see also Ex. 501, Feyrer Deck at ¶ 17. Models that included the abiotic habitat variables accounted for approximately 20% more of the variance in the data set than those without the abiotic habitat variables (r-squared values improved from 0.39 to 0.59). Id.

45. Using FMWT fish catch and water quality data, Feyrer (2011) demonstrated a relationship between the abiotic habitat index and the delta smelt abundance index. Ex. 501, Feyrer Deck at ¶ 18; 7-28-11 Tr. at 116:10-18. Feyrer (2011) concluded that “the habitat index was significantly positively correlated with the delta smelt abundance index ...” 7-28-11 Tr. at 127:5-9. Mr. Feyrer presented the following figure, adapted from Feyrer (2011), to demonstrate the relationship between the abiotic habitat index and the FMWT abundance index.

Ex. 501, Feyrer Decl. at 11.

46. Mr. Feyrer opined: “the pattern of these data strongly suggests that although there is substantial variability in the relationship between the abiotic habitat index and the abundance index, there appears to be an upper limit to abundance that is an increasing function of abiotic habitat. A classic interpretation of these data is that delta smelt reach their population carrying capacity as a function of available habitat.” Id. at ¶ 18.

47. However, both Dr. Deriso and Dr. Burnham opined that this correlation is meaningless, because the analysis in Feyrer (2011) uses the same FMWT data on both axes, making some correlation inevitable. 7-29-11 Tr. at 207:8-208:9 (Burn-ham) (“There’s the fall midwater trawl data underlying both axes ... And when you use the same data for things you then computed on both axes, it induces some degree of statistical correlation.”). Mr. Nobriga agreed that any correlation between the habitat index and the FMWT would be “inherently circular because abundance and presence-absence are correlated,” but further explained that Feyrer (2011) took this into account yet nevertheless reaffirmed the conclusion that the habitat index was significantly correlated with the FMWT. Ex. 505, Nobriga Decl. at ¶ 11. Mr. Nobriga does not explain how this correction was made.

48. These are legitimate criticisms and devalue the habitat index to an extent that cannot be determined with certainty.

(4) Other Criticisms of Feyrer’s Work.

49. Plaintiffs argue that Feyrer’s habitat index and the results of his research are flawed in several other ways.

a. Consideration of Statistical Uncertainty.

50. Plaintiffs argue that Feyrer’s analysis fails to appropriately account for uncertainty. In its 2010 review of the available science supporting the Fall X2 Action, the NRC concluded:

The controversy about the action arises from the poor and sometimes confounding relationship between indirect measures of delta smelt populations (indices) and X2. The weak statistical relationship between the location of X2 and the size of smelt populations makes the justification for this action difficult to understand. In addition, although the position of X2 is correlated with the distribution of salinity and turbidity regimes (Feyrer et al., 2007), the relationship of that distribution and smelt abundance indices is unclear. The X2 action is conceptually sound in that to the degree that habitat for smelt limits their abundance, the provision of more or better habitat would be helpful. The examination of uncertainty in the derivation of the details of this action lacks rigor. The action is based on a series of linked statistical analyses (e.g., the relationship of presence/absence data to environmental variables, the relationship of environmental variables to habitat, the relationship of habitat to X2, the relationship of X2 to smelt abundance), with each step being uncertain. The relationships are correlative with substantial variance being left unexplained at each step.

Ex. 12, NRC Report, at 53; 7-29-11 Tr. at 22:22-23:21 (Feyrer). Dr. Burnham agreed with the NRC and testified that it was “scientifically improper” for Mr. Feyrer to chain the results of multiple modeling efforts together without accounting statistically for the error introduced at each step. Ex. 2, Burnham Decl. at ¶ 22. According to Dr. Burnham, because Mr. Feyrer provided no analysis of the statistical uncertainty at each step of his habitat index, by the final step of his analysis it is impossible to assess the reliability of the correlations. 7-26-11 Tr. at 167:7-168:4 (Burnham). Defendants failed to adequately address this critique with countervailing competent scientific or mathematical analysis.

b. Feyrer Analyses Limited to Abiotic Factors Only.

51. Plaintiffs next argue that the Habitat Index is inherently flawed because the index considered only two abiotic habitat variables specific conductance (salinity) and Secchi depth (turbidity). Ex. 7, Feyrer (2011) at 124; 7-29-11 Tr. at 7:8-13 (Feyrer).

52. Mr. Feyrer freely acknowledged that his work was limited to an examination of abiotic habitat factors, in part because of the absence of food supply data taken concurrently with the fish sampling trawls. See Hearing Ex. 7, Feyrer (2011) at 124; Ex. 586, Feyrer (2007), at 9-10 (AR 18274-75); Ex 505, Nobriga Decl. ¶ 12; 7-28-11 Tr. at 117:4-118:14, 120:22-121:5 (Feyrer). Where the habitat index is so heavily relied upon for management purposes, this is an unjustified exclusion.

53. In Feyrer (2007), which served as the basis for the “habitat index” analysis, the authors concede that “[bjiotic variables, most notably competition, predation and food availability, could have also played a major role in controlling the distribution of the [delta smelt, striped bass, and threadfin shad].” 7-28-11 Tr. at 246:3-14 (Feyrer). Mr. Feyrer further conceded that his analysis in Feyrer (2011) was “limited” because it only considered two abiotic variables in its analysis of “suitable” smelt habitat. 7-29-11 Tr. at 7:19-24. He agreed that a full and appropriate definition of “habitat” should take into consideration more than just abiotic conditions and that “[a]biotic habitat is a component of habitat.” 7-28-11 Tr. at 244:17-21.

54. The Feyrer (2007) and Feyrer (2011) studies provide some evidence of an association between delta smelt abundance and summer and fall abiotic habitat conditions. However, analyses utilizing the habitat index only explain a portion of the environmental influences on smelt abundance.

55. The Feyrer testimony revealed limitations of the habitat index, which are not satisfactorily explained. The extent to which this diminishes the efficacy of that index is significant, particularly in light of the magnitude of effect implementing the Fall X2 Action has on Plaintiffs. The disconnect between the weak scientific justification and the strong practical impact is corroborated by DWR’s opposition to the X2 Action.

c. Failure to Separate Salinity from Turbidity.

56. Feyrer (2011) concluded that the habitat index variables of salinity and turbidity explain 25 percent of the variation in delta smelt abundance. 7-29-11 Tr. at 73: 5-16 (Feyrer). However, Mr. Feyrer acknowledged that the analysis in Feyrer (2011) does not provide a basis for calculating the proportion of the variation in the delta smelt abundance index attributable to salinity as a stand alone variable. Id. at 74:16-75:2.

57. This adds an additional layer of uncertainty when using Feyrer’s results to justify imposition of the Fall X2 Action. If turbidity is the dominant factor, how will controlling X2 accomplish anything? This is not explored or explained.

d. Failure to Consider Smelt Populations Residing in the Cache Slough Complex.

58. The latest STS found that 60 percent of the total smelt catch came from areas upstream of the confluence of the Sacramento and San Joaquin Rivers, specifically in the Cache Slough Complex. Ex. 521, Hanson Decl., App. B at 1. This is an area of freshwater or low salinity that is unaffected by the location of X2. 7-27-11 Tr. at 39:5-11 (Hanson).

59. These findings call into question the current understanding of smelt biology. For example, the Interagency Ecological Program’s December 6, 2010, Pelagic Organism Decline Work Plan and Synthesis of Results raised questions about the current conceptual model for delta smelt population dynamics:

The delta smelt has been considered semi-anadromous, but in recent years investigations centered on its northern Delta spawning and early rearing areas have detected delta smelt year-round, leading to the idea that these putative “resident” individuals might represent alternative life history contingents (Sommer et al. 2009, Sommer et al. in review). The southern end of the Yolo Bypass, including Liberty Island, Cache Slough, and the Sacramento deep water ship channel are known to support delta smelt spawning and rearing (see Bennett 2005). During 2003-2005 the USFWS collected delta smelt during monthly sampling activities throughout the year, not just during spring time, suggesting that delta smelt were using this relatively shallow, flooded island habitat throughout their entire life cycle (USFWS unpublished data). Similarly, extensions of the 20-mm Survey, TNS [Tow Net Survey] and FMWT surveys into the Sacramento deepwater ship channel caught delta smelt consistently from June through October, the warmest months of the year (CDFG unpublished data). Like the “core” rearing habitat of delta smelt near the Sacramento-San Joaquin River confluence, Liberty Island and adjacent deeper habitats in the Ship Channel and Cache Slough are very turbid and have very little SAV [submerged aquatic vegetation] (Nobriga et al. 2005, Lehman et al. 2010, CDFG unpublished data). However, Liberty Island is somewhat warmer during the summer than the river confluence (Nobriga et al. 2005) and may prove to be a challenging habitat for rearing. The following conceptual model applies only to the traditional view of delta smelt as a semi-anadromous species. We are currently evaluating how to integrate these observations into our conceptual model (T. Sommer, DWR, unpublished data).”

Ex. 501, Feyrer Deck, Internal Exhibit C (Baxter, et al., Interagency Ecological Program 2010 Pelagic Organism Decline Work Plan and Synthesis of Results (Dec. 6, 2010)) at 55-56.

60.The Cache Slough Complex was not included in the STS until 2009 and 2011. 7-27-11 Tr. at 35:7-37:11 (Hanson); See also Ex. 106. Consequently, Feyrer’s 2007 and 2008 analyses, which only utilized FMWT data up until 2004 and 2006 respectively, see Ex 586, Feyrer (2007), at 724; Ex. 6, Feyrer et al. (2008) (“Feyrer (2008)”), at 6 (AR 018283), and could not possibly have considered data of a substantial delta smelt population in the freshwater upstream areas in the Cache Slough Complex. Feyrer (2011) used only FMWT data up until 2008, Ex. 7, Feyrer (2011), at 141, so it too did not consider any evidence of a substantial population of delta smelt in Cache Slough that is unaffected by downstream shifts in the location of Fall X2.

61. Plaintiffs criticize Mr. Feyrer’s work for excluding these areas from his habitat index analysis. Some evidence suggests Mr. Feyrer’s calculation of the habitat index did include Cache slough and the Sacramento Deepwater Ship Channel. 7-28-11 Tr. at 124:15-20 (Feyrer) (testifying that the maps depicting the habitat index did encompass these areas). However, on cross-examination, Mr. Feyrer admitted that the core stations he used to develop the habitat index were all downstream of Cache Slough, Liberty Island, and the Sacramento Deepwater Ship Channel. Tr. 7-29-11 at 36:6-37:15. This inconsistent testimony cannot support the absolute limits for X2 the current RPA establishes.

62. Even assuming the habitat index excluded these upstream areas, Mr. Feyrer opined that including them “would simply add a constant number of units to the habitat index, which would not affect the shape of the X2-habitat index relationship.” Ex. 510, Feyrer Deck at ¶ 16. He admitted, however, that additional units would shift the curve to the right. 7-29-11 Tr. at 33:24-34:1; Exs. 102(a), 153. This is highly relevant to the reliability of the justification provided for the specific 74 km X2 standard to be imposed this Falk

e. Life Cycle Modeling.

63. Plaintiffs’ also criticize Feyrer’s work and the BiOp’s reliance on it on the ground that Feyrer’s results are contradicted by several recent papers evaluating smelt population dynamics through the use of life-cycle models. Life-cycle modeling is a special type of population dynamics modeling that considers the survival and reproduction of species over time. 7-26-11 Tr. at 169:16-170:6 (Burnham).

64. It is undisputed that life-cycle modeling is the best method for determining the effect of an environmental variable on the population dynamics of a species. See San Luis v. Salazar, 760 F.Supp.2d at 885 (finding it “undisputed that application of a quantitative life-cycle model is the preferred scientific methodology” for determining the effects of a stressor on the population of a species like the delta smelt); id. (“life-cycle modeling is standard practice in the field of fisheries biology”)-

65. Feyrer (2007) states that the development of life-cycle models for the delta smelt was “likely to better quantify the relative importance of water quality on their population dynamics.” Ex. 586, Feyrer (2007), at 731 (AR 018274). Mr. Feyrer also admitted that the use of a quantitative life-cycle model “would definitely help us reduce the amount of uncertainty” in the RPA, 7-29-11 Tr. at 17:25-18:10 (Feyrer), and that “well constructed life-cycle models can definitely ... improve our understanding of the delta smelt population dynamics.” 7-28-11 Tr. at 219:12-16 (Feyrer).

66. Despite the recognized need for a quantitative life-cycle model to analyze the effect of the location of X2 and other environmental variables on the population of the delta smelt, “it is undisputed that an appropriate life-cycle model had not been developed at the time the BiOp issued” in 2008. See San Luis v. Salazar, 760 F.Supp.2d at 885. The Court previously found that “FWS had the time and ability to prepare the necessary life-cycle model. FWS made a conscious choice not to use expertise available within the agency to develop one.” Id. This is evidence of agency intransigence. The court has repeatedly found that the agency’s “lack of data” apologetic is the premise for the agency to do what it chooses without addressing Plaintiffs’ objections.

67. Dr. Norris, the ESA regulator charged with determining whether there is a likelihood of jeopardy or adverse modification of critical habitat, testified that a life cycle model is not per se the best available science under ESA Section 7(a)(2). 7-29-11 Tr. at 182:4-186:6. She opined that a life cycle model is not automatically considered to be a credible resource, but rather must be evaluated for credibility based on the assumptions that went into it, the questions that were being asked, the data that were used, how the results were derived and what conclusions were drawn from those results. Id. at 186:7-16. Dr. Norris further explained that it is unlikely that any one life cycle model ever would be considered definitive or conclusive evidence that forecloses other evidence. Id. at 186:17-22.

68. Dr. Norris observed that scientific understanding with regard to the delta smelt is never static, and new information frequently is developed after a BiOp has been prepared. Id. at 186:23-187:6. For instance, Dr. Norris testified that Dr. Ken Newman, of FWS’s Stockton, California office, currently is working on a delta smelt life cycle model that will have several unique features, including spatial variability throughout the Delta, as well as temporal variability. Id. at 182:18-183:13. Dr. Newman’s model also will include the full data set for the Fall Midwater Trawl, which is fairly extensive and expanded over what has been done previously. Id.

(1) Feyrer (2008) Life Cycle Modeling Effort.

69.The BiOp relied in part on a 2008 manuscript, Feyrer (2008), which utilized a life-cycle model to evaluate the relationship between the location of X2 and delta smelt abundance. BiOp at 236. The December 14, 2010 MSJ Decision summarized the paper as follows:

[Feyrer (2008) ] expanded upon the 2007 research, used statistical analyses, including both Ricker and BevertonHolt type models, to compare Fall X2, habitat area fo