As the district court aptly put it, these cases arise from the “continuing war over protection of the delta smelt.” San Luis & Delta–Mendota Water Auth. v. Salazar, 760 F.Supp.2d 855, 863 (E.D.Cal.2010). We are joined to the fray.

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.

Previous rulings in this and the related Consolidated Delta Smelt Cases have discussed at length why the use of such data is not consistent with standard practice in the fields of fish biology and population dynamics. See San Luis & Delta–Mendota Water Authority v. Salazar, 760 F.Supp.2d 855, 885–90 (E.D.Cal.2010). The May 18, 2010 Findings of Fact and Conclusions of Law Re Plaintiffs' Request for Preliminary Injunction (“PI Decision”) in this case found:

Several declarants mention that a particularly fertile area for collaborative science is model development. Both this Court and multiple peer review bodies have identified a lack of quantitative life cycle models as a major shortcoming in development of the 2008 Smelt BiOp. San Luis & Delta-Mendota Water Auth. v. Salazar, 760 F. Supp. 2d 855, 881-85 (E.D. Cal. 2010); In re Consol. Salmonid Cases, 791 F. Supp. 2d 802, 834-45 (E.D. Cal. 2011); Supp. Lohoefener Decl. ¶ 16. Mr. Lohoefener indicates that CSAMP "offers the opportunity to work with the parties to use existing models that they have developed and to further develop those and other models."

Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1096 (9th Cir.2003); American Rivers, 126 F.3d at 1123–24;Idaho Dep't of Fish & Game v. Nat'l Marine Fisheries Serv., 56 F.3d 1071, 1074 (9th Cir.1995). In this case, the issues before the court are not moot because although a new 2008 opinion was issued, parts of that 2008 opinion have been held unlawful by the district court in San Luis & Delta–Mendota Water Authority v. Salazar, 760 F.Supp.2d 855 (E.D.Cal.2010) (holding that the Service's reliance on raw salvage numbers to set river flow limits violated ESA and that its conclusion that projects contributed to impacts on predation and microcystis on delta smelt was arbitrary and capricious). Unlike previous cases that this court has addressed where a new superceding opinion clearly replaced the old opinion, in this case we have ongoing litigation regarding the validity of the 2008 opinion and a federal court which has held that parts of the 2008 opinion violate the ESA.

Because a district court "is not required to resolve any facts in review of an administrative proceeding," id. at 769, "summary judgment becomes the ‘mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review.’ " San Luis & Delta-Mendota Water Auth. v. Salazar , 760 F. Supp. 2d 855, 868 (E.D. Cal. 2010) (quoting Sierra Club v. Mainella , 459 F. Supp. 2d 76, 90 (D.D.C. 2006) ). Thus, "the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did."

The plaintiffs in San Luis v. Jewell (some of the Defendants here) insisted that the ESA required explicit analysis of each of the four factors in § 402.02. San Luis & Delta-Mendota Water Auth. v. Salazar, 760 F. Supp. 2d 855, 949 (E.D. Cal. 2010), aff'd in part, rev'd in part sub nom. San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581 (9th Cir. 2014).

'" San Luis & Delta-Mendota Water Auth., 760 F.Supp.2d 855, 868 (E.D. Cal. 2010) (quoting Sierra Club v. Mainella, 459 F.Supp.2d 76, 90 (D.D.C. 2006)); see also Occidental Eng'g Co., 753 F.2d at 769 (the purpose of district court review is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did"). 3. Whether the Administrative Record Permitted USCIS to Reach the Decision It Did

Summ. J. 45. The plaintiffs counter that NMFS does not need to wait for better science to develop—it just needs the best science available, citing Sw. Ctr. for Biological Diversity v. Babbitt, 215 F.3d 58, 60 (D.C.Cir.2000) (The “best available data” requirement makes it clear that the Secretary has no obligation to conduct independent studies.... Even if the available scientific and commercial data were quite inconclusive, he may—indeed must—still rely on it ....) (citation omitted)) and San Luis & Delta–Mendota Water Auth. v. Salazar, 760 F.Supp.2d 855, 872 (E.D.Cal.2010) (“FWS must utilize the best scientific ... data available, not the best scientific data possible.”), aff'd in part, rev'd in part, bySan Luis & Delta–Mendota Water Auth. v. Jewell, 747 F.3d 581 (9th Cir.2014) (internal quotation marks omitted).

First, under some statutory schemes, e.g. the Endangered Species Act, the agency is required to consider the “best available science,” so that its failure to do so might warrant a finding that the agency acted contrary to law in violation of the APA. See generally San Luis & Delta–Mendota Water Auth. v. Salazar, 760 F.Supp.2d 855, 866 (E.D.Cal.2010). Plaintiff has not even suggested that a best available science standard applies here.