The Eastern District Court has granted the request of the water and federal fish agencies to extend the deadline for rewrite of the Delta smelt and salmonid biological opinions by one year in order to implement an adaptive management program. The extension falls short of the three-year extension that the agencies had been requesting; however, future extensions will be considered on a year-by-year basis depending upon the progress made.
The Bureau of Reclamation, the federal fish and wildlife agencies and the Department of Water Resources (collectively referred to as the Movants in the court documents) had petitioned the court requested the extension in order to implement a Collaborative Science and Adaptive Management Program (referred to as CSAMP in the court documents):
“The stated goal of the CSAMP is to “develop a robust science and adaptive management program, with collaboration of the scientists and experts from the Public Water Agencies (PWAs) and the NGO community, that will inform the development and implementation of the BiOps, [the Bay Delta Conservation Program (“BDCP”)], and other programs.” … . Movants believe that implementation of CSAMP “will result in a halt to the counter-productive litigation cycle through the development of common understandings of the science, joint fact-finding, increased transparency through information sharing, and a commitment to work together so that parties develop trust and no longer use the courts to solve disputed scientific and technical issues.””
In the ruling, the court found that the level of collaboration contemplated by the adaptive management program is indeed “more intense and potentially far-reaching than any previously-described collaborative efforts,” and therefore demonstrates a change in circumstances not anticipated at the time the judgement was entered.
In the court documents, Ren Lohoefener, regional director for the U.S. Fish and Wildlife Service, argues that “effective collaboration and litigation are fundamentally incompatible,” and that greater collaboration will reduce the likelihood of future litigation. The Court found that there is some evidence to support this belief. Although the Court notes the defendant’s argument that no party has agreed to refrain from seeking interim injunctive relief and ‘the relationship remains adversarial,” the Court believes the agencies interest in improving adaptive management ‘represents a solid step away from litigation.”
The agencies have argued that there is insufficient staff to work to complete new biological opinions while simultaneously pursuing the adaptive management program, since likely the same key staff would be involved. The Court agrees that although insufficient funding is generally not considered a valid justification for delaying compliance with endangered species regulations, the Court notes that the situation cannot be fixed merely by adding inexperienced or new staff. The Court also finds that since the existing biological opinions remain in force, any delay in the writing of new biological opinions poses no additional threat to the continued existence of the species.
The Court found:
In sum, allowing CSAMP [adaptive management] to proceed has the potential to advance significantly the public interest, while proceeding on the current schedule appears likely to reverse recent moves designed to steer the parties away from endless litigation, which has been extraordinarily burdensome on the parties and the Court.
Because the CSAMP process has not yet begun and its exact processes are to be developed in a collaborative manner, Movants are unable at this time to provide details of the CSAMP process, what it is likely to accomplish, and how those accomplishments will be brought to bear on the respective consultation processes. … This lack of detail provides the Court with little assurance that CSAMP will proceed as envisioned, let alone that CSAMP will actually result in scientific progress, as opposed to “collaborative” gridlock.
So rather than issue the agencies a three-year ‘blank check’, the court concludes:
On or before February 15, 2014, the parties shall submit a joint status report to the Court detailing progress that has been made in connection with the CSAMP as well as providing additional information about CSAMP’s future activities and how any results will be incorporated into the consultation processes. As part of any such submission, the Court expects to see detailed schedules describing how CSAMP and the consultation processes in both cases will proceed.
Concurrent with the filing of the joint status report, the Court will entertain a request to extend the remand schedule by an additional year, with the understanding that if substantial progress has been made along the lines outlined by Movants, such an extension will be granted. The opposite is equally true. If substantial progress has not been made, further extensions will be nonexistent. Extension of the deadlines by a third year will require a similar showing at the end of the second year.