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Initial Victory in Striped Bass Lawsuit: Judge Denies Motion that Striped Bass Regulations are Illegal

 

by Bill Jennings, Executive Director, CSPA
July 16, 2009 -- In an important victory for fisheries and striped bass, the Coalition for a Sustainable Delta (Coalition) lost their Motion for Partial Summary Judgment in their lawsuit against the Department of Fish and Game. The “Coalition” is comprised of water agencies in San Joaquin Valley that have been attempting to divert attention away from the massive state and federal export pumps in the south Delta that are killing Delta fisheries and water quality.  The Coalition filed a lawsuit against DFG claiming the Department's enforcement of fishing regulations that protect striped bass violates the Endangered Species Act (ESA) because striped bass prey upon salmon.  The case was filed in U.S. District Court in Fresno California and is attached.  

The California Sportfishing Protection Alliance (CSPA), California Striped Bass Association (CSBA) and the Northern California Council of the Federation of Flyfishers (NCCFFF) (CSPA, et al.) and Central Delta Water Agency joined the lawsuit as Defendant-Intervenors in support of DFG.

The Coalition filed a motion for Summary Judgment seeking the court to declare:
1.     That the Central Valley Improvement Act does not exempt striped bass fishing regulations from “take” (i.e., killing) prohibitions under the ESA.
2.     That a single “take” of a salmon would violate the ESA.
3.     That it is a violation of the ESA for DFG to “take” a federally listed species without first receiving “take” authorization.
4.     That Dee Dillion has standing under the US Constitution to pursue the litigation.  (Mr. Dillion is a Sacramento resident that claims he has been harmed by DFGs striped bass regulations)
Summary Judgment can only be granted where there are no material issues of fact in dispute.  The motion was heard on 29 June 2009.

On 16 July 2009, Judge Oliver W. Wanger issued a decision denying the request for Summary Judgment in its entirety.  Should the Coalition continue to pursue the issue, the case will now move to trial in May 2010.

Judge Wanger's decision is noteworthy in that he identified relevant evidence and set forth the guidelines of what the Coalition would be required to prove at trial.  Below are several important excerpts from the decision that demonstrate the uphill battle faced by the Coalition.  

“It is undisputed that striped bass prey on Listed Species. PSUF 10. Plaintiffs maintain that by promoting and maintaining an artificially high population of striped bass in the Delta, the striped bass sport-fishing regulations have also artificially increased striped bass predation of the Listed Species. PSUF 11. However, while CDFG concedes that evidence shows that the Listed Species are among the species that constitute the striped bass' food source, the Listed Species “are not common in the striped bass diet and striped bass predation is not responsible for their current status.” Fuchs Dec., Exh. G (Biological Assessment for the California Department of Fish and Game Striped Bass Management Program, June 1995- June 1996 (“BA”)) at 54-56. As the Conservation Plan observed, “[s]almon and striped bass populations coexisted in much greater abundance than the populations existing today and available historical information on population trends does not suggest that high periods in striped bass abundance coincided with lower populations of salmon as would be expected if striped bass were a major factor limiting salmon abundance.” Conservation Plan at 26. In fact, statistical analysis of species abundance data referenced in the Conservation Plan disclosed a positive, rather than a negative, correlation between striped bass abundance and salmon abundance.” P.7 of the ruling.

CDF&G declarant Matthew 'Nobriga notes that, while striped bass do eat delta smelt, they also eat their predators and competitors, like the Mississippi silverslide. Id. at ¶10. From this, Mr. Nobriga suggests that it is possible that the elimination of striped bass from the Bay-Delta system could increase silverside abundance, which would increase silverside predation of the Delta smelt. Id. at ¶ 10. Increased silverside predation of the Delta smelt could potentially offset any reduced striped bass predation of the smelt.” P. 9 of the ruling.

CSPA et al. filed an independent brief on two of the four issues presented by plaintiffs for summary judgment and the Court ruled that “Two of the Four Requested Determinations are Not Amenable to Summary Judgment” on those issues.

On one of the remaining issues, Central Delta Water Agency argued that the CVPIA trumped the Endangered Species Act and the Court disagreed, but included in its ruling language that will be important in the eventual trial of this action:

     (1) “The CVPIA contains numerous provisions calling for protection and enhancement of striped bass within the Sacramento-San Joaquin Delta. CVPIA section 3403(a) defines the term “anadromous fish” to include “striped
bass;”

     (2) The CVPIA requires the Secretary of Interior to “develop within three years of enactment and implement a program which makes all reasonable efforts to ensure that, by the year 2002, natural production of anadromous fish in Central Valley rivers and streams will be sustainable, on a long-term basis, at levels not less than twice the average levels attained during the period of 1967-1991. To this end, it is undisputed that FWS has established a doubling goal for striped bass of 2,500,000 fish.” McDaniel Decl.;

     (3) The Court recognized that CVPIA Section 3406(b)(1)(B) provides that “the Secretary is authorized and directed to modify Central Valley Project operations to provide flows of suitable quality, quantity, and timing to protect all life stages of anadromous fish....”

     (4) The Court also recognized that Section 3406(b)(14) is directed specifically to striped bass, requiring the Secretary to “develop and implement a program which provides for modified operations and new or improved control structures at the Delta Cross Channel and Georgiana Slough during times when significant numbers of striped bass eggs, larvae, and juveniles approach the Sacramento River intake to the Delta Cross Channel or Georgiana Slough.”;

     (5) The Court ruled that “Central Delta is correct that “[i]t cannot be reasonably disputed that Congress intended to protect and restore striped bass.” Doc. 66 at 5. However, Congress also expressed its intention in CVPIA § 3406(b), that the Secretary “operate the Central Valley Project to meet all obligations under state and federal law, including but not limited to the federal Endangered Species Act....”;

     (6) The Court ruled, “The express language and the legislative purpose of the CVPIA do not evince an intent to abrogate application of the ESA. Only after the facts are developed will it be possible to determine if a conflict in operation exists between implementation of the ESA to the sport-fishing regulations and achieving the CVPIA objectives by application of those regulations.”

Judge Wanger's Ruling