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DANIEL J. O’ HANLON, State Bar No. 122380 K. ERIC ADAIR, State Bar No. 150650 HANSPETER WALTER, State Bar No. 244847 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor Sacramento, CA 95814 Telephone: (916) 321-4500 Facsimile: (916) 321-4555

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EILEEN M. DIEPENBROCK, State Bar No. 119254 JON D. RUBIN, State Bar No. 196944 JONATHAN R. MARZ, State Bar No. 221188 DIEPENBROCK HARRISON 400 Capitol Mall, 18th Floor Sacramento, CA 95814 Telephone: (916) 492-5000 Facsimile: (916) 446-4535 Attorneys for Plaintiffs SAN LUIS & DELTA-MENDOTA WATER AUTHORITY; WESTLANDS WATER DISTRICT

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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THE DELTA SMELT CASES

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SAN LUIS & DELTA-MENDOTA WATER AUTHORITY, et al. v. SALAZAR, et al. (Case No. 1:09-cv-407)

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STATE WATER CONTRACTORS v. SALAZAR, et al. (Case No. 1:09-cv-422)

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COALITION FOR A SUSTAINABLE DELTA, et al. v. UNITED STATES FISH AND WILDLIFE SERVICE, et al. (Case No. 1:09-cv-480) METROPOLITAN WATER DISTRICT v. UNITED STATES FISH & WILDLIFE SERVICE, et al. (Case No. 1:09-cv-631) STEWART & JASPER ORCHARDS, et al. v. UNITED STATES FISH AND WILDLIFE SERVICE, et al. Case No. 1:09-cv-892)

CASE NO. 1:09-cv-407-OWW-DLB 1:09-cv-422-OWW-DLB 1:09-cv-631-OWW-DLB 1:09-cv-892-OWW-GSA PARTIALLY CONSOLIDATED WITH: 1:09-cv-480-OWW-GSA PLAINTIFFS SAN LUIS & DELTAMENDOTA WATER AUTHORITY AND WESTLANDS WATER DISTRICT’ S SUPPLEMENTAL MEMORANDUM IN SUPPORT OF ADMISSION OF EXPERT TESTIMONY DATE: October 19, 2009 TIME: 11:30 a.m. COURTROOM: 3 Hon. Oliver W. Wanger

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925025.3 San Luis Plaintiffs’Supplemental Memorandum in Support of Admission of Expert Testimony

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TABLE OF CONTENTS

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Page I. II.

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b.

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INTRODUCTION .......................................................................................................... 1 ARGUMENT.................................................................................................................. 1 A. Exceptions To The Record Review Rule Apply In This Case............................... 1 B. The Authority Proposes To Submit Expert Declarations That Are Squarely Within The Recognized Exceptions To Record Review And Are Necessary For Adequate Judicial Review ............................................................................. 3 1. The Testimony Of Dr. Ray Hilborn Is Admissible Extra-Record Evidence Necessary For Effective Judicial Review .................................. 3 a. FWS failed to use commonly employed models or provide analyses or quantitative bases to evaluate the risk to delta smelt population posed by the effects of project operations........... 4

III.

FWS ignores or fails to address common ecological principles and theories in reaching its conclusions that (1) entrainment causes delta smelt population level effects and (2) loss of habitat under future project operations significantly affects delta smelt recovery or abundance................. 5 c. FWS relies on circular logic for its analysis of a relationship between OMR flow and salvage losses at the project pumps......... 6 2. The Testimony Of Dr. Bryan Manly Is Admissible Extra-Record Evidence Necessary For Effective Judicial Review .................................. 7 a. FWS has no support for its conclusion that entrainment affects subsequent year abundance of delta smelt.......................... 7 b. FWS conducted an invalid analysis of Fall X2 and abundance .................................................................................... 9 c. There is no basis for the BiOp’ s conclusion that project operations are limiting delta smelt abundance by entraining food............................................................................................ 10 C. The Subject Matter of Drs. Hilborn and Manly is Distinct From Other Experts .............................................................................................................. 11 CONCLUSION............................................................................................................. 11

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I.

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INTRODUCTION

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The San Luis & Delta-Mendota Water Authority and Westlands Water District

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(collectively “ the Authority” ) submit the following supplemental authorities and arguments to

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support their request to submit the testimony of knowledgeable experts to fully explain and

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expose the numerous technical faults contained in the U.S. Fish and Wildlife Service’ s (“ FWS” )

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biological opinion purporting to analyze the combined effects of proposed Central Valley Project

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(“ CVP” ) and State Water Project (“ SWP” ) operations on the delta smelt (“ BiOp” ). The Authority proposes to introduce two expert declarations. The proposed declarants,

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Dr. Ray Hilborn and Dr. Bryan Manly, are eminent academic researchers in the fields of fish

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population dynamics and biostatistics, respectively. Through this brief and the two declarations

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filed concurrently herewith, the Authority provides more detailed explanation of the testimony the

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Authority will offer, and its materiality. The testimony that will be provided by Dr. Hilborn and

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Dr. Manly fits squarely within exceptions to the record review rule, and is necessary for this

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Court to adequately review the Authority’ s claims that the BiOp does not comply with the

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requirements of the Administrative Procedure Act (“ APA” ) and the Endangered Species Act

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(“ ESA” ). As more specifically described herein and in their supporting declarations submitted

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herewith, the testimony of Dr. Hilborn and Dr. Manly will show that the BiOp fails to employ

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available, widely accepted methods for analyzing the available scientific data, and reached

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unsupported or invalid conclusions as a result of failure to use these standard methods, or instead

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by using flawed methods or logic and ignoring obvious problems.

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II.

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ARGUMENT

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A.

Exceptions To The Record Review Rule Apply In This Case

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As explained in the seminal case, Citizens to Preserve Overton Park, Inc. v. Volpe, to

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apply the APA standard of review, the court must scrutinize the facts underlying an agency’ s

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decision, and “ [t]o make this finding the court must consider whether the decision was based on a

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consideration of the relevant factors and whether there has been clear error of judgment.”

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Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971) (overruled on other

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grounds in Califano v. Sanders, 430 U.S. 99, 105 (1977)) (emphasis added). While the general

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rule is that a court’ s review of agency action is based upon the administrative record, courts apply

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several well-known exceptions that allow admission and consideration of “ extra-record”evidence

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in order to ensure adequate judicial review. Here, two of these exceptions jointly apply. First, expert testimony may be used to “ explain technical terms or complex subject

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matter”in the record. Ctr. For Southwest Biological Diversity v. U.S. Forest Service, 100 F.3d

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1443, 1450 (9th Cir. 1996); National Audubon Society v. U.S. Forest Service, 46 F.3d 1437, 1441

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(9th Cir. 1993); Idaho Conservation League v. Mumma, 956 F.2d 1508, 1520 n. 22 (9th Cir.

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1992). It is beyond dispute that the BiOp involves very complex and technical issues. Federal

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Defendants admit, “ these cases involve complex scientific and technical issues.”(Doc. #302 at

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1:12.) Second, courts may admit and consider extra-record evidence to “ determine whether the

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agency has considered all relevant factors and has explained its decision.”Earth Island Institute

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v. U.S. Forest Service, 442 F.3d 1147, 1161 (9th Cir. 2006) (disapproved on other grounds by

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Winter v. NRDC, Inc., 129 S.Ct. 365, 375-76. (2008)). The rationale for this exception was aptly

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explained by the Ninth Circuit in Asarco, Inc. v. EPA, a case discussed by the Court and

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environmental intervenors during the October 2 hearing:

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It will often be impossible, especially when highly technical matters are involved, for the court to determine whether the agency took into consideration all relevant factors unless it looks outside the record to determine what matters the agency should have considered but did not. The court cannot adequately discharge its duty to engage in a “ substantial inquiry”if it is required to take the agency’ s word that it considered all relevant matters.

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Asarco, Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir. 1980) (emphasis added.).

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As explained in further detail in Section B, FWS did ignore and fail to address numerous

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important, relevant factors in the BiOp’ s analyses. However, because these errors involve

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complex technical matters and/or failures by FWS to consider all relevant factors, the Authority

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respectfully submits that the testimony of Dr. Hilborn and Dr. Manly is appropriately considered.

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The Authority Proposes To Submit Expert Declarations That Are Squarely Within The Recognized Exceptions To Record Review And Are Necessary For Adequate Judicial Review

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The BiOp’ s analysis of the effects of the projects includes “ a specific focus on three major

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seasonally-occurring categories of effects: entrainment of delta smelt, habitat restriction, and

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entrainment of Pseudodiaptomus forbesi, the primary prey of delta smelt during summer-fall.”

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(BiOp at 203; AR 000218.) In evaluating these effects –entrainment, habitat, and food –FWS

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was required to use “ the best scientific and commercial data available.”16 U.S.C. § 1536(1)(2).

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As summarized below, and explained in more detail in their accompanying declarations, both Dr.

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Manly and Dr. Hilborn have identified serious flaws in the statistical and scientific methods FWS

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used to conduct the effects analyses in the BiOp. These flaws separately and jointly undermine

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the BiOp’ s ultimate conclusion that water project operations are jeopardizing the delta smelt and

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adversely modifying its critical habitat. Therefore, it will be essential for this Court to consider

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the testimony of Dr. Hilborn and Dr. Manly to adequately determine whether FWS acted in a

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lawful manner in preparing and issuing the BiOp.

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1.

The Testimony Of Dr. Ray Hilborn Is Admissible Extra-Record Evidence Necessary For Effective Judicial Review

16 Dr. Ray Hilborn is currently a professor of aquatic and fishery sciences at the University

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of Washington. As the curriculum vitae attached to his declaration indicates, he has served as an

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advisor to the Commission for the Conservation of Southern Bluefin Tuna, authored or co-

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authored over 200 publications including peer-reviewed articles and numerous textbooks and

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other references, received numerous accolades and awards, served on the editorial boards of

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several scientific journals that publish research articles on fisheries and aquatic biology, and in

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this decade alone, Dr. Hilborn has conducted research projects through grants and other funding

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totaling over $10 million. (See Declaration of Dr. Ray Hilborn (“ Hilborn Decl.” ), ¶ 1 and

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Exhibit A thereto.) Dr. Hilborn is eminently qualified to review the BiOp and the data, analyses,

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hypotheses, and research papers underlying its conclusions in order to explain to the Court

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whether FWS failed to employ proper statistical or scientific methodologies, neglected to mention

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or account for significant confounding factors or variables, or otherwise committed errors in

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drawing conclusions from the available data, as more specifically described below and in Dr.

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Hilborn’ s declaration.

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a.

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FWS failed to use commonly employed models or provide analyses or quantitative bases to evaluate the risk to delta smelt population posed by the effects of project operations

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At the heart of this case is the BiOp’ s conclusion that water project operations jeopardize

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the delta smelt. The ESA requires FWS to provide a BiOp “ detailing how the agency action

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affects the species or its critical habitat.”16 U.S.C. § 1536(b)(3)(A). In the BiOp, FWS purports

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to have provided such “ detail,”but Dr. Hilborn explains this is not the case. In fact, Dr. Hilborn’ s

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“ overarching criticism”of the BiOp is that it fails to provide any analysis or quantitative basis for

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evaluating the risk to the delta smelt population posed by the effects of water project operations.

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(Hilborn Decl., ¶ 6.) Dr. Hilborn states that without such analyses, there is simply no way to

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reach a conclusion, one way or the other, regarding what effect project operations have on delta

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smelt viability. (Hilborn Decl., ¶ 8.) He describes this oversight as “ inexplicable, and outside the

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realm of generally accepted scientific standards.”(Hilborn Decl., ¶ 6.)

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References to the problem identified by Dr. Hilborn already appear in the administrative

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record. For instance, in reviewing proposed reasonable and prudent alternatives, the peer review

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panel commented that “ [n]either plan discusses how reductions in entrainment and increases in

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habitat would translate into increased survival and enhanced recovery.”(AR 006530.) Similarly,

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the peer reviewers stated “ [n]o credible statistical relationship between export flows or losses and

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subsequent delta smelt abundance size has been found.”(Id.)

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But standing alone, these remarks and the rest of the FWS administrative record do not

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explain to the Court the prevailing scientific standards and methods, the impact and magnitude of

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FWS’ s errors, or how easily and reasonably those errors could have been avoided or remedied.

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However, with his expertise, Dr. Hilborn can bridge this gap and explain to the Court in more

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detail what the peer reviewers were pointing out, and whether FWS properly heeded or adjusted

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its approach to account for these insufficiencies in the final BiOp. Thus, Dr. Hilborn’ s testimony

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is critical not only to explain material already in the record, but also to expand on these criticisms

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to show the Court the full context and implications of the improper and inadequate methods used 925025.3 -4-

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by FWS in preparing the BiOp. In his declaration, Dr. Hilborn continues by explaining that there are models that are

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commonly employed and generally accepted by experts in the field to investigate what inimical

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factors are affecting individual fish, and to assess the extent to which those factors may be

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affecting overall population size and viability. (Hilborn Decl., ¶¶ 6, 11.) He states one such tool

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is a spawner-recruit model. (Hilborn Decl., ¶ 9.) He indicates an even better tool is a stage by

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stage life history model. (Hilborn Decl., ¶ 10.) In fact, he states that these stage by stage models

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are routinely used in ESA recovery plans for other species, for instance on the Columbia River

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system, and form the basis for almost all marine fisheries management in the United States.

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(Hilborn Decl., ¶ 10.) Dr. Hilborn also concludes that FWS had a rich body of data available to it

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and that such quantitative analyses could have, and should have, been employed. (Hilborn Decl.,

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¶ 12.) Given the amount of quantitative data available to FWS, he explains that FWS’ s failure to

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use either model to quantitatively investigate the effects, if any, of project operations on delta

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smelt abundance and population size from year to year is “ a major failing”and “ not in accordance

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with generally accepted scientific standards.”(Hilborn Decl., ¶ 13.)

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The failure to use these commonly available and accepted models is not obvious from the

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BiOp or the administrative record and is not easily explainable by laypersons. Dr. Hilborn can

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detect and explain the implication of these deficiencies to the Court. Accordingly, the Authority

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respectfully requests that it be allowed to submit more thorough and detailed testimony from Dr.

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Hilborn describing these “ inexplicable”flaws and “ major failings,”in order to adequately review

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the Authority’ s claims against the BiOp.

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FWS ignores or fails to address common ecological principles and theories in reaching its conclusions that (1) entrainment causes delta smelt population level effects and (2) loss of habitat under future project operations significantly affects delta smelt recovery or abundance

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Dr. Hilborn further explains that FWS’ s assumptions regarding entrainment and habitat

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b.

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suitability fail to discuss or account for ecological theories and principles that may make such

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assumptions completely erroneous and off-base, and would render these effects unimportant to

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the overall delta smelt population. With respect to potential mortality of individual adults or 925025.3 -5-

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juveniles through entrainment at project pumps, Dr. Hilborn explains that the deaths of individual

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delta smelt do not necessarily translate into population level effects. (Hilborn Decl., ¶¶ 16, 17.)

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He explains that this is so because fish populations can experience “ bottlenecks”over their life

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cycle that can affect the relative importance to the overall population of particular factors that

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cause mortality of individual fish. (Hilborn Decl., ¶ 14.) Such principles are not obvious to the

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layperson, but they are very important to this case because the BiOp contains many statements

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implying, without substantiation, that entrainment causes delta smelt population-level effects. Dr.

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Hilborn provides expertise to explain the lack of support for this conclusion. With respect to habitat, the BiOp states that the “ delta smelt has become increasingly

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habitat limited”and that “ the continued loss and constriction of habitat proposed under future

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water project operations significantly threatens the ability of a self-sustaining delta smelt

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population to recover and persist in the Estuary at abundance levels higher than the current

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record-lows.”(BiOp at 237; AR 000252.) As with other alleged effects, the BiOp provides no

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explanation of how FWS arrived at the conclusion that this effect, if any, “ significantly threatens”

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the delta smelt population. (Hilborn Decl., ¶¶ 21, 22.) Dr. Hilborn explains that such a

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conclusion is ill-founded without considering ecological theory that would suggest that at low

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population levels, habitat is not often the significant factor restricting or suppressing population

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growth. (Hilborn Decl., ¶ 18.) He explains that smelt population abundance is only a few percent

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of what it was in the past and that there is likely ample habitat capacity for delta smelt

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populations to increase significantly before habitat capacity becomes a limiting factor. (Hilborn

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Decl., ¶¶ 19, 20.) Again, such principles and FWS’ s failure to address them are not obvious or

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understood without the aid of an expert in fish population dynamics. Dr. Hilborn has the

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expertise to show that FWS’ s conclusion that project operations pose a significant threat to delta

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smelt populations through alleged restrictions in habitat capacity is neither ecologically and

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statistically justified nor supported by evidence in the record.

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c.

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FWS relies on circular logic for its analysis of a relationship between OMR flow and salvage losses at the project pumps

Dr. Hilborn identifies another important latent defect in the BiOp. He explains that on -6San Luis Plaintiffs’Supplemental Memorandum in Support of Admission of Expert Testimony

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page 212 of the BiOp (i.e., AR 000227), there is an analysis of the relationship between OMR

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flow and salvage losses at the water project pumps that is “ circular”and therefore

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methodologically improper. (Hilborn Decl., ¶ 23.) He states that the BiOp’ s conclusion that

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there is a significant relationship between OMR flow and estimates of salvage losses is a

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“ misuse”of a 2008 article written by Wim Kimmerer (“ Kimmerer 2008” ). (Hilborn Decl., ¶ 23.)

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This is so, he explains, because in its analysis the BiOp uses salvage estimates based on

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Kimmerer 2008 and compares them to OMR flow. (Hilborn Decl., ¶ 23.) This, however, is

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improper because the estimates using Kimmerer 2008 also include OMR flows as part of the

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estimate and therefore OMR flow is a variable affecting both factors of the comparison. (Hilborn

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Decl., ¶ 23.) Dr. Hilborn concludes “ this circularity is a significant methodological flaw”that the

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BiOp fails to address and renders the BiOp’ s claim of a significant relationship invalid. (Hilborn

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Decl., ¶ 24.) The testimony from Dr. Hilborn will fully explicate for the Court this serious

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analytical defect and the implications it has for the conclusions and reasonable and prudent

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alternatives contained in the BiOp, many of which are based on this flawed conclusion.

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2.

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The Testimony Of Dr. Bryan Manly Is Admissible Extra-Record Evidence Necessary For Effective Judicial Review

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Dr. Bryan Manly has over 40 years of experience in the application of statistics in

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environmental and ecological areas. (Declaration of Dr. Bryan Manly (“ Manly Decl.” ), ¶ 1 and

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Exhibit A thereto.) He is a Chartered Statistician of the Royal Statistical Society, and a Fellow of

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the Royal Society of New Zealand, and has authored nearly 200 papers in peer reviewed scientific

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journals and is the author of seven books on applied statistics. (Id. and Exhibit B thereto.) Like

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Dr. Hilborn, Dr. Manly is eminently qualified to evaluate the BiOp, with a particular emphasis on

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whether the BiOp and the scientific articles it relied upon, which are in the record, properly used

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and applied scientifically acceptable statistical principles to interpret the data and analyses they

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performed.

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a.

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FWS has no support for its conclusion that entrainment affects subsequent year abundance of delta smelt

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and subsequent abundance do not support the hypothesis that entrainment is driving population

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dynamics. (BiOp at 210; AR 000225.) Nevertheless, the BiOp claims that entrainment is “ best

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characterized as a sporadically significant influence on population dynamics.”(Id.) Dr. Manly,

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explains that in making this statement the BiOp appears to be relying on a 2008 article by Wim

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Kimmerer entitled Losses of Sacramento River Chinook Salmon and Delta Smelt to Entrainment

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in Water Diversions in the Sacramento-San Joaquin Delta to support its conclusion that

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entrainment can sometimes cause delta smelt abundance to vary from one year to the next, but

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that there is no scientific basis for such a statement. (Manly Dec., ¶ 5.) Dr. Manly explains that

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Kimmerer 2008 estimated losses of delta smelt in a single year class, but did not conclude that

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such losses reduce delta smelt population abundance. (Manly Dec., ¶ 6.) Instead, he explains

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that Kimmerer 2008 actually concluded that effects of such entrainment are “ negligible”in

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comparison to the effect of other factors on smelt abundance. (Manly Dec., ¶ 6.) Thus, Dr.

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Manly concludes that the data and analysis in Kimmerer 2008 “ do not support a conclusion that

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entrainment has anything more than a trivial effect on smelt abundance the following year.”

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(Manly Dec., ¶ 6.)

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Furthermore, Dr. Manly continues his critique of the BiOp’ s conclusions regarding the

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effects of entrainment by explaining that “ if the Service wished to test whether high levels of

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entrainment in some years . . . ‘ sporadically’reduce abundance the following year, there are

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relatively simple statistical methods of testing this hypothesis.”(Manly Dec., ¶ 7) In fact, he

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explains that he conducted such an analysis and found no evidence of “ sporadic”significance as

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claimed in the BiOp. (Manly Dec., ¶ 8.) Based on his independent analysis and a review of the

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BiOp and Kimmerer 2008, Dr. Manly concludes that “ available data and statistical analyses do

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not support a conclusion that entrainment is affecting the long term viability of the population.”

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(Manly Dec., ¶ 10.)

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The statistical expertise offered by Dr. Manly demonstrates the BiOp’ s improper reliance

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on and use of Kimmerer 2008, and its failure to employ common statistical tests to check the

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conclusions derived therefrom. Furthermore, Dr. Manly has employed common statistical tests

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with the same data available to FWS and concluded that they do not support the BiOp’ s 925025.3 -8-

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conclusions. The testimony of Dr. Manly will further explain and prove to the Court how these

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flaws and omissions amount to clear errors of judgment by FWS.

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b.

FWS conducted an invalid analysis of Fall X2 and abundance

Dr. Manly next addresses errors in the BiOp’ s conclusions regarding water project effects

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on Fall X2 and the abundance of delta smelt. First, Dr. Manly agrees with the expert testimony of

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Dr. Richard Deriso, which has already been admitted by the Court, that FWS used an

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inappropriate linear additive model to find a statistically significant relationship between Fall X2

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and delta smelt abundance. (Manly Dec., ¶ 11.) However, avoiding duplication, Dr. Manly

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describes further additional flaws in the BiOp’ s claim that Fall X2 significantly affects smelt

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abundance, which Dr. Deriso did not address in his declaration.

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Dr. Manly explains that Dr. Deriso used a standard Ricker stock-recruit model to evaluate

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whether there is a relationship between Fall X2 and subsequent summer abundance, and found no

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statistically significant relationship. (Manly Dec., ¶ 12.) But Dr. Manly adds that there are

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additional appropriate statistical methods for investigating any claim of such a relationship.

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(Manly Dec., ¶ 13.) He explains that one such method was presented to FWS in a letter dated

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November 19, 2008, which was provided by the Authority and appears in the record at 006367-

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006392. (Manly Dec., ¶ 13.)

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The Authority’ s letter stated that regression analyses indicated that X2 does not improve

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the prediction of delta smelt abundance as compared to a simple stock-recruitment relationship

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with X2 excluded. (Manly Dec., ¶ 13; AR 006375-006376.) Dr. Manly explains that he could

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more thoroughly explain the methods and results of the regression analyses presented in the

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Authority’ s letter in a second declaration. (Manly Dec., ¶ 13.) He concludes by declaring that

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the BiOp’ s second theorized effect of project operations –alleged effects on smelt abundance

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linked to changes in position of X2 –is based on an inappropriate statistical method, and that, in

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contrast, the statistical analyses suggested in the Authority’ s November 19, 2008 letter appear to

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refute the BiOp’ s claim. (Manly Dec., ¶ 14.)

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Again, Dr. Manly’ s testimony fits both exceptions to the record review rule. He will

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explain complex statistical facts and data already in the record, including elaborating on the 925025.3 -9-

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comments and analyses discussed and presented by the Authority to FWS in its November 19,

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2008 letter. Also, as Dr. Manly points out, FWS could have reported, but apparently did not

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report, the results of the appropriate methods the Authority proposed to test whether Fall X2 is

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related to subsequent delta smelt abundance. (Manly Dec., ¶ 14.) It is important to note that the

5

Authority never received any official response from FWS to this letter, and that the Authority has

6

located no such response anywhere in the record. Thus, although the Authority’ s letter is in the

7

record, the letter alone is not sufficient for the Authority to argue, and the Court to fully

8

understand, the letter’ s statistical recommendations or to appreciate the significance of FWS’ s

9

failure to respond to or otherwise address the criticisms in the letter. For this reason, Dr. Manly’ s

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testimony on the issue will be critical for effective judicial review. c.

There is no basis for the BiOp’ s conclusion that project operations are limiting delta smelt abundance by entraining food

Dr. Manly also addresses the third major category of effect the BiOp attributes to water

14

project operations, which is the entrainment of the zooplankton Psuedodiaptomus forbesi.

15

(Manly Dec., ¶ 15.) He explains that the BiOp theorizes that project operations “ might”be

16

depriving the delta smelt of an important food source; however, he concludes that there “ is no

17

support for this theory in any data or statistical analyses described in the BiOp.”(Manly Dec.,

18

¶ 15.) Furthermore, he explains that this theory or hypothesis is contradicted in numerous ways

19

by available data, which were again presented to FWS in the Authority’ s November 19, 2008

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comment letter (AR 006377-006379). (Manly Dec., ¶ 16.) Dr. Manly explains that these

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regression analyses to test the BiOp’ s claim of a significant effect on smelt abundance through

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water project effects on Psuedodiaptomus forbesi is not reported anywhere in the BiOp. (Manly

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Dec., ¶ 16.) The Authority has not located any such analyses or response to the issue raised in the

24

Authority’ s letter in the administrative record. Dr. Manly explains that in a second declaration he

25

could fully explain the method and results of regression analyses that indicate that water project

26

operations do not effect delta smelt through effects to delta smelt summer food availability.

27

(Manly Dec., ¶ 16.) Thus, for similar reasons as mentioned above for the BiOp’ s X2 analysis, the

28

testimony of Dr. Manly will fully explain to the Court the technical import of the letter’ s 925025.3 -10-

K RON ICK , M OSKOVITZ , T IEDEMAN N & G IRARD A T TO R N E YS A T L AW

San Luis Plaintiffs’Supplemental Memorandum in Support of Admission of Expert Testimony

Case 1:09-cv-00407-OWW-DLB

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Filed 10/09/2009

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statistical recommendations and the methodological significance of FWS’ s failure to respond to

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or otherwise address the relevant factors noted in the letter.

3

C.

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The Subject Matter of Drs. Hilborn and Manly is Distinct From Other Experts The subject of Drs. Hilborn and Manly’ s testimony is distinct from that being offered by

5

other expert declarants. Dr. Deriso is offering expert testimony on the relationship between OMR

6

flows and salvage, an inappropriate use of a linear additive model, and impro0per use of data to

7

set the incidental take limit. Dr. Hanson, the proposed expert for the State Water Contractors, is

8

offering testimony on the concept of habitat, with an approach that is grounded in both the

9

fisheries and ecological sciences. Dr. Hilborn is offering testimony that FWS failed to use

10

available and commonly accepted methods, such as spawner-recruit or stage by stage life history

11

models, to quantify the impact of project operations, ignored ecological principles in assuming a

12

population level effect, and misapplied published articles. Dr. Manly is offering testimony on the

13

lack of any basis for FWS’ s conclusion that entrainment has a sporadically significant effect on

14

population abundance, and that FWS failed to employ readily available statistical methods to test

15

its hypotheses regarding effects of export pumping on summer food availability.

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III.

17

CONCLUSION

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The BiOp’ s conclusions regarding the effects of project operations rest upon myriad

19

analyses of biological facts and data using statistical and computer models, or upon scientific

20

articles that have done similar analyses. The datasets used are numerous and so are the statistical

21

and scientific methods employed to analyze such datasets. Additionally, the BiOp contains much

22

technical, statistical, and biological jargon that can easily confuse the issues. None of these are

23

matters of general familiarity to non-experts.

24

As more specifically described above, for many issues, the use of expert testimony is

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critical for the assessment of whether FWS employed the proper datasets and statistical analyses

26

or other methodologies, or if FWS committed a sin of omission by excluding relevant analyses or

27

other considerations. An understanding of commonly accepted standards and modeling applied

28

by the scientific community and what common practices FWS failed to employ is necessary to 925025.3 -11-

K RON ICK , M OSKOVITZ , T IEDEMAN N & G IRARD A T TO R N E YS A T L AW

San Luis Plaintiffs’Supplemental Memorandum in Support of Admission of Expert Testimony

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resolve whether FWS correctly interpreted and reached valid conclusions regarding the effects of

2

project operations based on such data and analyses, or alternatively made clear errors of

3

judgment. As briefly explained in the declarations submitted herewith, both Dr. Hilborn and Dr.

4

Manly will testify that in all three major categories of effects analysis –entrainment, habitat and

5

food –FWS failed to apply methodologies commonly accepted in the scientific community, and

6

that FWS failed to account for potential errors and confounding variables, and that FWS’ s failure

7

to do so deviated from accepted standards of practice in the relevant scientific disciplines.

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Accordingly, through this supplemental brief and the accompanying declarations of Dr. Hilborn and Dr. Manly, both world-class experts in their respective fields, the Authority

10

respectfully submits that this additional expert testimony is admissible and necessary to properly

11

present and argue its claims against the BiOp, and also to enable the Court to effectively review

12

those claims.

13

DATED: October 9, 2009

14

Respectfully submitted, KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD A Professional Corporation DIEPENBROCK HARRISON A Professional Corporation

15 16 17

By

18 19 20

/s/ Daniel J. O’ Hanlon DANIEL J. O’ HANLON EILEEN M. DIEPENBROCK Attorneys for Plaintiffs San Luis & Delta-Mendota Water Authority and Westlands Water District

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-12San Luis Plaintiffs’Supplemental Memorandum in Support of Admission of Expert Testimony