Case 2:16-cv-03869-DOC-PLA Document 209 Filed 09/23/18 Page 1 of 152 Page ID #:26702 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 SOUTHERN DIVISION 9 10 WISHTOYO FOUNDATION ET AL., Case No.: CV 16-3869-DOC (PLAx) 11 Plaintiffs, ORDER RE: MOTIONS IN LIMINE 12 [93] [94] [108] [109] [111] [113] [114] 13 vs. [117]; ORDER DENYING WITHOUT 14 PREJUDICE CONDITIONAL MOTION FOR JOINDER AND 15 UNITED WATER CONSERVATION MOTION TO DISMISS FOR FAILURE 16 DISTRICT, TO JOIN [163] [164]; ORDER DENYING AS MOOT RENEWED 17 Defendant. MOTION FOR PRELIMINARY 18 INJUNCTION [201]; AND 19 FINDINGS OF FACT AND 20 CONCLUSIONS OF LAW [176] 21 HOLDING THAT PLAINTIFFS ARE 22 ENTITLED TO DECLARATORY AND INJUNCTIVE RELIEF ON THEIR 23 CLAIM FOR TAKE OF SOUTHERN 24 CALIFORNIA STEELHEAD, BUT NOT ON THEIR CLAIM FOR TAKE 25 OF SOUTHWESTERN WILLOW 26 FLYCATCHER 27 28 1 Case 2:16-cv-03869-DOC-PLA Document 209 Filed 09/23/18 Page 2 of 152 Page ID #:26703 1 I. INTRODUCTION ...................................................................................................... 3 2 II. PROCEDURAL BACKGROUND ............................................................................ 8 3 III. MOTIONS IN LIMINE ............................................................................................ 11 4 IV. FINDINGS OF FACT .............................................................................................. 13 5 A. United Operates the Vern Freeman Diversion Dam (“VFD”) on the Santa Clara River, Built in 1988–91 with Federal Funds ............................. 14 6 B. VFD Sits on a Migration Corridor for Southern California Steelhead, 7 Listed As Endangered by the National Marine Fisheries Service in 1997 ............................................................................................................... 19 8 1. Multiple Federal Agencies, With United’s Participation, 9 Consulted Regarding VFD’s Impact on Steelhead ............................ 29 10 2. National Marine Fisheries Service Issued a Biological Opinion in 2008 Finding that VFD is Likely to Jeopardize the 11 Continued Existence of Southern California Steelhead ..................... 33 12 3. United Took Steps to Address VFD’s Impacts on Steelhead, But Also Dragged its Feet; and the Federal Government Failed 13 to Take Concrete Action Prior to Plaintiffs Filing this Lawsuit ........ 57 14 4. Plaintiffs Propose Remedies to Reduce Impacts on Steelhead .......... 94 15 C. Flycatcher, an Endangered Bird, Migrates to Areas Adjacent to VFD ....... 100 16 1. Flycatcher Biology and Behavior ..................................................... 101 17 2. Flycatcher in the Santa Clara River Watershed ............................... 106 18 V. CONCLUSIONS OF LAW .................................................................................... 111 19 A. Jurisdiction, Venue, and Standing ............................................................... 111 20 B. Unauthorized Take under ESA Section 9 .................................................... 112 21 1. United Took Steelhead ..................................................................... 115 22 2. Plaintiffs Do Not Prevail on their Claim for Take of Flycatcher ..... 124 23 C. Permanent Injunction for Take of Steelhead ............................................... 125 24 1. Irreparable Harm .............................................................................. 126 25 2. Injunctive Relief ............................................................................... 131 26 VI. TRIAL AND POST-TRIAL MOTIONS ................................................................ 147 27 VII. DISPOSITION ........................................................................................................ 151 28 2 Case 2:16-cv-03869-DOC-PLA Document 209 Filed 09/23/18 Page 3 of 152 Page ID #:26704 1 I. INTRODUCTION 2 Located in Ventura and Los Angeles counties, the Santa Clara River flows 3 westward from its headwaters in the San Gabriel Mountains, across the broad Santa Clara 4 River valley and expansive Oxnard Plain, to the Pacific Ocean.1 The Santa Clara River and 5 its tributaries experience high flow variability, multi-year droughts, and extreme seasonal 6 flooding, resulting in a highly dynamic system.2 The Santa Clara River watershed is one of 7 the largest on the coast of southern California, draining about 1,600 square miles.3 8 The Vern Freeman Diversion Dam (“VFD”), built in the late 1980s and early 1990s 9 with federal funds, is a concrete diversion dam spanning the width of the Santa Clara River 10 at about 10.5 river miles from the Pacific Ocean,4 as shown below: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1 Trial Exhibit List (“Trial”) (Dkt. 178) Ex. 218 at 2. 2 Id. 27 3 Id. 4 28 Trial Ex. 245 Fig. 1. 3 Case 2:16-cv-03869-DOC-PLA Document 209 Filed 09/23/18 Page 4 of 152 Page ID #:26705 1 Defendant United Water Conservation District (“United” or “Defendant”) operates 2 VFD. Using a series of channels and gates, United can divert surface water from the River 3 into recharge basins (which in turn recharge aquifers in the Oxnard plain to increase the 4 availability of groundwater) or into a piping system to the Pleasant Valley water district.5 5 The Santa Clara River is also a habitat for steelhead—fish that are born in 6 freshwater, can migrate to the ocean to mature, and return to freshwater as adults to 7 spawn.6 After spawning, steelhead can return to the ocean, and then come back again to 8 freshwater to spawn, sometimes two or more times.7 In the upper Santa Clara River 9 watershed, the tributaries to the Santa Clara River provide spawning and rearing habitat for 10 steelhead, and historically steelhead have migrated between the spawning grounds in the 11 upper Santa Clara River and the Pacific Ocean.8 12 Today, in the Santa Clara River, steelhead hatch and rear upstream, above VFD.9 13 As juveniles, steelhead can migrate downstream—either passing over the top of the crest 14 of VFD or through VFD via a bypass pipe, flushing channel, or via trap and release—and 15 16 17 5 See generally Trial Ex. 218; Testimony of Anthony Emmert (“Emmert Test.”), Dec. 15, 2017, 18 Vol. 1; Testimony of Murray McEachron (“McEachron Test.”), Dec. 18, 2017, Vol. 4. (When citing testimony for which the transcripts have not been produced for publication at this time, the 19 Court will cite to the witness name, date, and volume number for that date.) 6 20 See Trial Facts Stipulation (“TFS”) (Dkt. 149) ¶ 21; Trial Ex. 2 (“Biological Opinion”) at 8; 71 Fed. Reg. 834 (Jan. 5, 2006); TFS ¶¶ 14–16. Steelhead are fish in the species Oncorhynchus 21 mykiss (or “O. mykiss”); O. mykiss includes two life history forms: (1) the anadromous form, called steelhead or steelhead trout; and (2) the resident form, often called rainbow trout. TFS ¶ 13. 22 The difference between the two forms is that steelhead spends a portion of its life history in the ocean before returning to freshwater for spawning, whereas the resident form (rainbow trout) 23 spends its entire life in freshwater. Id. ¶ 13. O. mykiss exhibit great plasticity and are capable of 24 rearing in fresh water and growing to adults entirely in freshwater and residing in freshwater for multiple seasons before becoming anadromous steelhead and outmigrating to ocean waters when 25 conditions are favorable; O. mykiss are even capable of reproducing several generations of purely resident rainbow trout, the offspring of which are capable of reverting to anadromous behavior 26 when conditions are favorable. Id. ¶ 16. 7 See Biological Opinion at 8; 71 Fed. Reg. 834 (Jan. 5, 2006); TFS ¶¶ 14–16. 27 8 See Biological Opinion at 9–10; TFS ¶ 22. 9 28 See TFS ¶ 22. 4 Case 2:16-cv-03869-DOC-PLA Document 209 Filed 09/23/18 Page 5 of 152 Page ID #:26706 1 then swim to the estuary and the Pacific Ocean.10 In the ocean, steelhead can mature into 2 adults.11 As adults, Steelhead can then return to the Santa Clara River to migrate upstream 3 in an effort to reach their natal streams to spawn.12 In order reach the upper Santa Clara 4 River, steelhead must swim through the estuary and the lower portion of the river, and then 5 pass through VFD via a fish ladder, and finally swim upstream above VFD toward the 6 spawning habitat.13 7 Along this pathway, VFD presents two notable obstacles to steelhead migration, 8 especially for adults. First, United’s diversion of water at VFD reduces the availability of 9 water downstream for steelhead migration.14 For instance, during dry summer months, a 10 sandbar typically builds up at the mouth of the Santa Clara River estuary, which (along 11 with other dry portions over the river) cuts off migratory access to the Santa Clara River to 12 or from the ocean.15 But when river flow levels increase during the wet season—typically 13 December through April—a migration corridor can be created, and the sandbar can be 14 breached, allowing steelhead to migrate upstream and downstream (assuming there is 15 sufficient water depth and height for the fish).16 However, United—by diverting water at 16 VFD—artificially shortens the frequency and durations of migration corridor periods, 17 thereby reducing migration opportunities for steelhead.17 18 Second, VFD is a bottleneck in the river; and the only way for adult steelhead 19 swimming upstream to pass VFD is to enter VFD’s fish ladder, climb the ladder, and exit 20 the ladder above VFD, but it is difficult for adult steelhead to successfully pass through the 21 22 23 10 See TFS ¶ 30; Biological Opinion at 11,