Central Delta Water Agency et al v. United States Fish and Wildlife Service et al

Filing 185

Memorandum Decision and Order Granting Multiple Motions to Dismiss (Docs. 106, 107, 112, 113, 114, 116, 118), Granting in Part and Denying in Part Water Agency Defendants Motion to Strike (Doc. 173), and Denying as Moot State Defendants Motion to Quash Service (Doc. 105). Defendants shall submit a form of judgment terminating this action in accordance with this memorandum decision and order within five days. Signed by Judge Oliver W. Wanger on 09-08-2009. (Coffman, Lisa)

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1

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

CENTRAL DELTA WATER AGENCY and SOUTH DELTA WATER AGENCY, Plaintiffs, v. UNITED STATES FISH AND WILDLIFE SERVICE, et al., Defendants.

1:09-CV-00861 OWW DLB MEMORANDUM DECISION AND ORDER GRANTING MULTIPLE MOTIONS TO DISMISS (DOCS. 106, 107, 112, 113, 114, 116, 118), GRANTING IN PART AND DENYING IN PART WATER AGENCY DEFENDANTS' MOTION TO STRIKE (DOC. 173), AND DENYING AS MOOT STATE DEFENDANTS' MOTION TO QUASH SERVICE (DOC. 105).

I. INTRODUCTION This case concerns the ongoing development and preliminary environmental review of the Bay Delta Conservation Plan ("BDCP"), a yet-to-be consummated collaborative approach to restoring the Sacramento-San Joaquin Delta ecosystem, while also protecting water supplies.

See Defendants' Request for Judicial Notice

("DRJN"), Ex. A, BDCP: An Overview and Update (March 2009) ("Overview and Update"). Plaintiffs, Central Delta Water Agency

and South Delta Water Agency, filed this lawsuit against the members of the BDCP "Steering Committee," 1 alleging that:

The "Steering Committee" is made up of federal, state, and local water agencies, as well as nonprofit organizations. Overview and Update at 17. Defendants United States Fish and 1

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(1) defendants initiated the scoping process under the National Environmental Policy Act ("NEPA") and the California Environmental Quality Act ("CEQA") without releasing to the public a sufficiently detailed BDCP project description; (2) in retaining a contractor to study the BDCP's possible environmental impacts, defendants violated federal regulations governing contractor conflicts-of-interest; (3) federal and state agencies impermissibly are coordinating their NEPA/CEQA compliance activities; (4) the BDCP lists conservation and water supply as co-equal project goals in violation of the California Natural Communities Conservation Planning Act ("NCCPA"); and (5) the BDCP Steering Committee's meetings did not comply with the California's Bagley­Keene Open Meeting Act. Complaint.

See Doc. 1,

Plaintiffs have since abandoned their conflict-ofDoc. 157 at 2 n.2.

interest and NCCPA claims.

Six groups of defendants move to dismiss all of the claims in the Complaint. Doc. 106 (California Farm Bureau Federation

("CFBF")), Doc. 107 (Environmental Non-Profits), Doc. 112 (Federal Defendants), Doc. 113 (Mirant Delta LLC), Doc. 114 & 118 (Water Agency Defendants), Doc. 116 (State Defendants). The

memoranda in support of these motions overlap to a considerable degree. With leave of court, Plaintiffs filed a consolidated,

Wildlife Service ("FWS") and the National Marine Fisheries Service ("NMFS"), are ex officio members of the Steering Committee. See DRJN Ex. B, "Planning Agreement regarding the [BDCP] (Oct. 6, 2006) ("Planning Agreement") at 14. 2

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seventy-six page opposition.

Doc. 157.

All of the moving Docs.

parties replied, again with largely overlapping memoranda. 175, 177-181.

Defendants jointly filed a request for judicial notice. Doc. 110. notice. Plaintiffs also filed a separate request for judicial The Water Agency Defendants move to strike

Doc. 165.

certain declarations and exhibits submitted by Plaintiffs in opposition to the motions to dismiss. Doc. 173. 2

II. STATUTORY BACKGROUND A. NEPA. With the passage of NEPA in 1970, Congress "recognize[ed] the profound impact of man's activity on the interrelations of all components of the natural environment" and "declare[d] that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures ... to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the
2

Plaintiffs object to the hearing of this motion to strike, which contains evidentiary objections directly related to the pending motions to dismiss, on less than thirty days notice. Doc. 182 at 2. This objection is without merit. Local Rule 78230(e) allows any party to file a counter-motion or other motion that is related to the general subject matter of the original motion. The district court "may" then continue the hearing "so as to give all parties reasonable opportunity to serve and file oppositions and replies to all pending motions." Id. Here, the motion to strike was filed August 17, 2008, leaving Plaintiffs adequate time to file an opposition, which they did, on August 18, 2009. There was no need to continue the hearing schedule. 3

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social, economic, and other requirements of present and future generations of Americans." 42 U.S.C. § 4331. In order to

facilitate informed decision-making and public disclosure, federal agencies prepare an environmental impact statement ("EIS") for "major Federal actions significantly affecting the quality of the human environment."

Id. § 4332(C).

NEPA, along with implementing regulations promulgated by the Council on Environmental Quality ("CEQ"), establishes procedures agencies must follow in determining whether an EIS is required and in developing the EIS itself. One of the first steps in the

process of developing an EIS is "scoping," an "early and open process for determining the scope of issues to be addressed and for identifying the significant issues related to a proposed action."

Id. § 1501.7.

As soon as practicable after the

decision is made to prepare an EIS and before scoping takes place, the lead agency 3 must publish in the Federal Register a Notice of Intent ("NOI"), which must briefly describe the proposed action and proposed alternatives, provide contact information for an agency representative to answer questions about the project, and describe the agency's proposed scoping process. 40 C.F.R. § 1508.22.

3

Where multiple agencies are involved in a project, the regulations mandate that there be a lead agency in preparing the EIS, but allow agencies to serve as "joint lead agencies" in order to facilitate inter-agency cooperation. 40 C.F.R. § 1501.5. 4

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B.

Administrative Procedure Act ("APA"). The APA provides that "[a] person suffering legal wrong

because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. Where no

other statute provides a right of action, the "agency action" at issue must also be "final agency action." § 704. "A

preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action."

Id.

"Agency action" is defined as "the

whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." § 551(13). Agency action is considered final if it "mark[s] the

consummation of the agency's decision making process" and defines parties' rights and obligations or carries other legal consequences.

Bennett v. Spear, 520 U.S. 154, 177-78 (1997).
III. FACTUAL BACKGROUND

This is yet another lawsuit arising out of the "increasingly significant and intensifying conflict" between the ecological needs and sustainability of the Sacramento San-Joaquin Delta ("Delta") and the human users of the Delta's resources.

See

DRJN, Exhibit E, Overview of the Draft Conservation Strategy for the BDCP at 3 (Jan. 12, 2009) ("Draft Overview"). The Delta is

the largest estuary on the west coast of the Americas, and 5

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includes parts of five California counties (Contra Costa, San Joaquin, Sacramento, Solano, and Yolo). Compl. ¶84. The estuary

supports more than 750 species of plants and wildlife, including several species protected by the federal Endangered Species Act ("ESA"). Compl. ¶85. Twenty-three million people, two-thirds of

California's population, obtain some of their drinking water from Delta supplies. Compl. ¶86. In addition, more than 4 million

acres of farmland are irrigated with water from the Delta. The Delta is the hub of both the federal Central Valley Project ("CVP") and the State Water Project ("SWP")

Id.

(collectively, "the Projects"), which pump water from the Delta near the city of Tracy to supply municipal, industrial, and agricultural users to the south.

See Compl. ¶86.

The Projects

currently use the Delta's natural and man-made channels to convey water from incoming watersheds to those pumps. This arrangement

has deleterious effects on the ecosystem, while related efforts to protect the environment cause uncertainty for those who receive water from the Delta.

See Draft Overview at 3.

"[T]he

continuing subsidence of lands within the Delta, increasing seismic risks and levee failures, and sea level rise associated with climate change, serve to exacerbate these conflicts."

Id.

There is little dispute that the current system is in need of fundamental restructuring. In 2006, various federal and state regulatory agencies, 6

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water districts, and other interested parties, began to develop the BDCP, with the stated goal of "provid[ing] for the conservation of threatened and endangered fish species in the Delta and improv[ing] the reliability of the water supply system within a stable regulatory framework." Update at 1. Compl. ¶95; Overview and

The participants in the BDCP process have all

recognized that solving the Delta's problems will require, among other things, capital improvements to the Delta's water conveyance system. BDCP Notice of Intent and Notice of Public

Scoping Meetings, 74 Fed. Reg. 7,257, 7,259 (Feb. 13, 2009)("February 2008 NOI"). Through the BDCP, Defendants intend

to obtain long term incidental take permits for any planned changes to the Projects under the NCCPA and ESA. Compl. ¶104.

The "principal forum within which key policy and strategy issues pertaining to the BDCP will be discussed and considered" is the "Steering Committee," a group made up of the relevant federal and state regulatory agencies, numerous water contractors, and nonprofit organizations, who all signed a "Planning Agreement," setting forth the goals of the BDCP planning process.

See Planning Agreement at 22-25.

On January 24, 2008, NMFS and FWS published a "Notice of Intent to Conduct Public Scoping and Prepare an Environmental Impact Report/Environmental Impact Statement," broadly outlining the BDCP. 73 Fed. Reg. 4,178 (Jan. 24 2008) ("January 2008 7

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NOI").

The January 2008 NOI explained: The applicants have identified four potential water conveyance options that are being considered for the habitat conservation planning process: (1) the existing conveyance and system without physical change to conveyance facilities, (2) changes to conveyance in San Joaquin Old and Middle River channels plus separation of San Joaquin corridor from through-delta conveyance, (3) a dual conveyance in which existing conveyance would still be operational plus an isolated facility (not yet constructed) from the Sacramento River to the south Delta, and (4) an isolated conveyance facility (not yet constructed) from the Sacramento River to the south Delta. These four options are undergoing evaluations through the BDCP Steering Committee to assess the relative ability of each to contribute to the goals and objectives of the planning effort. Although the applicant has not yet decided which option(s) will be submitted for consideration under section 10 of the Endangered Species Act, the intent is to narrow the project focus to one or two of the four options or a mixture thereof by fall 2007.

Id.
The NOI was updated on April 15, 2008: (1) adding BOR as a third co-lead federal agency; (2) providing further details on the project; and (3) announcing the dates, times, and locations of ten scoping meetings throughout California, held in April and May 2008. NOI"). 73 Fed. Reg. 20,326 (Apr. 15, 2008) ("April 2008

The April 2008 NOI described the BDCP as follows: The BDCP will have several core purposes: Habitat restoration and enhancement to increase the quality and quantity of habitat in the Delta; other conservation actions to help address a number of stressors on covered species; conveyance facilities to enhance operational flexibility and water supply reliability while providing greater opportunities for habitat improvements and fishery conservation; water operations and management actions to achieve conservation and water supply goals; and a comprehensive monitoring, assessment, and adaptive management program guided by independent scientific input. Additional core purposes of the BDCP are to provide for the conservation of covered species within the planning area; to protect and restore certain aquatic, riparian, and associated 8

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terrestrial natural communities that support these covered species; and to provide for and restore water quality, water supplies, and ecosystem health within a stable regulatory framework. The EIS/EIR will evaluate the effects of implementing the BDCP, conveyance alternatives, and power line alignments, other nonstructural alternatives, and describe the permits necessary for BDCP implementation. The BDCP will likely consist of several major elements, including new capital improvements to the water supply conveyance system, a restoration program for important habitats within and adjacent to the Delta in order to improve the ecological productivity and sustainability of the Delta, and monitoring and adaptive management for the restoration program. The plan will also likely include operational improvements for the water supply system in the near-term and for the long-term once any capital improvements have been completed and are operational. 73 Fed. Reg. 20,327. The April 2008 NOI then explained that the

BDCP may include, but is not limited to, the following activities: · Existing Delta conveyance elements and operations of the CVP and SWP; · New Delta conveyance facilities (including power line alignments) and operations of the CVP and SWP generally described in the BDCP November 2007 Points of Agreement; · Operational activities, including emergency preparedness of the CVP and SWP in the Delta; · Operational activities in the Delta related to water transfers involving water contractors or to serve environmental programs; · Maintenance of the CVP, SWP, and other PREs' facilities in the Delta; · Facility improvements of the CVP and SWP within the Statutory Delta...; · Ongoing operation of and recurrent and future projects related to other Delta water users, as defined by the Planning Agreement; · Projects designed to improve Delta salinity conditions; and · Conservation measures included in the BDCP, including, but not limited to, fishery related habitat restoration projects, adaptive management, and monitoring activities in the Delta. 9

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Id. at 20,327-28.

The April 2008 NOI also pointed toward the

Steering Committee's "Points of Agreement" as the "basis for alternative development": As part of the BDCP process, the Steering Committee evaluated potential options to address water supply reliability, water quality, and ecosystem health in the Delta. Initial options included various combinations of water conveyance facilities and habitat restoration actions. As a result of this evaluation, the Steering Committee developed the Points of Agreement document that provides an overall framework for moving forward with development of the BDCP. Previous evaluations and potential improvements to the water conveyance system and strategies for in-Delta habitat restoration and enhancement outlined in the Points of Agreement document will be used for the basis of alternative development, but will not preclude or limit the range of alternatives to be analyzed under NEPA.

Id. at 20,378.
Some comments received during the 2008 scoping meetings indicated that more detailed descriptions of the proposed activities and alternatives were needed to permit informed public comment.

See 74 Fed. Reg. at 7,257.

In response, on February

13, 2009, the agencies published another NOI. 60.

See id. at 7,257-

The February 2009 NOI contained additional detail about the

BDCP's central elements and the alternative conveyance systems under consideration: The BDCP will likely consist of three major elements: (1) Actions to improve ecological productivity and sustainability in the Delta; (2) potential capital improvements to the water conveyance system, and; (3) potential changes in Delta-wide operational parameters of the CVP and SWP associated with improved water conveyance facilities. Potential habitat restoration measures that could improve ecological productivity and sustainability in the Delta may involve the restoration of floodplain; 10

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freshwater intertidal marsh; brackish intertidal marsh; channel margin, and riparian habitats. Floodplain restoration opportunities exist in the North Delta/Yolo Bypass and upper San Joaquin River areas; intertidal marsh restoration opportunities exist throughout the Delta and in Suisun Marsh. Channel margin habitat restoration opportunities exist for improving habitat corridors and as a component of floodplain restoration. Riparian habitat restoration opportunities exist as a component of floodplain, freshwater intertidal marsh, and channel margin habitat restoration. Three general alternatives are being considered as they relate to the potential changes in the water conveyance system and CVP/SWP operations. These include: (1) A through-Delta alternative; (2) a dual conveyance alternative; and (3) an isolated facility alternative. In addition, the implications of taking no action, the No Action alternative, will be considered in the analysis. The dual conveyance alternative may include potential new points of diversion at various locations in the North Delta, facilities to move water from new points of diversion to the existing SWP and CVP pumping facilities in the South Delta, and continued use of the existing diversions in the South Delta. The fully isolated facility alternative would include potential new points of diversion at various locations in the North Delta and facilities to move water from new points of diversion to the existing SWP and CVP pumping facilities in the South Delta. The improved throughDelta alternative could include new temporary or permanent barriers to modify existing hydraulics or fish movement within the Delta, armoring of levees along Delta waterways to ensure continued conveyance capacity, and/or actions to improve conveyance capacity in existing Delta waterways. New points of diversion could be located along the Sacramento River between South Sacramento and Walnut Grove. The new conveyance facility could extend from the new points of diversion to the existing SWP and CVP pumping facilities in the South Delta and be located either to the west or east of the Sacramento River. Potential CVP/SWP operations changes include the seasonal, daily, and real time amounts, rates, and timing of water diverted through and/or around the Delta. Potential corresponding changes to water exports could also be developed. Other actions to reduce threats to listed fish that may be evaluated for implementation by the BDCP include measures to minimize other stressors. These other stressors may include: (1) Non-native invasive species; (2) toxic contaminants; (3) other water quality issues; (4) hatcheries; (5) harvest; (6) non-project 11

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diversions; and (7) commercial/recreational activities. Implementation of potential habitat restoration activities and measures to minimize other stressors will be evaluated throughout the Delta, and possibly upstream and downstream of the Delta, as appropriate to meet the objectives of the plan. Preliminary locations, alignments, and capacities of new conveyance facilities, as well as habitat restoration activities and actions to address other stresses, to be evaluated in the EIS/EIR will be informed by the scoping process. In addition to the alternatives described above, other reasonable alternatives identified through the scoping process will be considered for potential inclusion in the alternatives analysis.

Id. at 7,259-60.
The co-lead agencies held a second round of twelve scoping meetings around the State in March 2009.

See id. at 7,257.

Comments submitted during both the 2008 and 2009 rounds of scoping meetings will be considered during the preparation of the EIS/EIR.

Id.

Plaintiffs complain that the NOIs were "ambiguous," Compl. ¶100, and that neither the NOIs nor related documents, including the January 2009 "Overview of the Draft Conservation Strategy for the [BDCP]," provide sufficiently detailed information about the BDCP, Compl. ¶101: 108. The language in the NOI is muddled and ambiguous. The "BDCP covered activities may, but are not limited to existing or new activities related to" "new Delta conveyance facilities," "Facility improvements of the CVP and SWP within the Statutory Delta," "future projects related to other Delta water users," "Projects designed to improve Delta salinity conditions," and "Conservation measures included in the BDCP, including, but not limited to, fishery related habitat management, and monitoring activities in the Delta." (NOI, 7259 (Exhibit 1) (bold added).) However, the facilities to 12

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be completed such as the new Delta conveyance facilities, their nature and their location have yet to be defined. While a number of alternatives for the new conveyance facilities have been mentioned in other BDCP process documents, the new conveyance facilities remain undefined in the NOI. Also to be determined are the goals and objectives of the BDCP, the species to be covered, and the methods and locations of conservation. Since the project is yet to be defined, it is impossible to accurately describe. 109. Also, to the extent that any decisions about the BDCP have been made, they are not accurately reflected in the NOI. The NOI lists a combination plate of the following proposed actions as constituting the project: The BDCP is a conservation plan.... [I]ncidental take permits (ITP) for water operations and management activities .... These incidental take authorizations would allow the incidental take of threatened and endangered species resulting from covered activities and conservation measures that will be identified through the planning process, including those associated with water operations of the Federal Central Valley Project (CVP), as operated by Reclamation, the California State Water Project (SWP), as operated by DWR, as well as operations of certain Mirant Delta LLC (Mirant Delta) power plants.... Authorizations that would allow projects that restore and protect water supplies, water quality, and ecosystem health to proceed within a stable regulatory framework. [NOI, p. 7257 (Exhibit 1).] This description implies that the BDCP is a conservation plan and a take permit for any activities identified in the planning process and an array of other non-specified "authorizations that would allow projects." This description is vague, and omits certain activities that will be included, such as the construction of a conveyance facility, identified in the NOP and is unequivocally, contrary to law. (NOP, p. 7257 (Exhibit 1).) While the location of the conveyance facility is not precisely known, the NOI for the BDCP fails to even include a list of cities and 13

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counties where the facilities may be located and which entities' water supply and watersheds may be affected. Compl. ¶¶ 108-109. Defendants move to dismiss the NEPA claim for lack of subject matter jurisdiction on standing, ripeness, and sovereign immunity grounds. Alternatively, Defendants argue that the Finally, Defendants

complaint fails to state a claim under NEPA.

argue that the state law claims should be dismissed because supplemental jurisdiction cannot be exercised unless the district court possesses subject matter jurisdiction over at least one federal claim. Alternatively, Defendants argue that the state

law claims should be dismissed on jurisdictional and/or substantive grounds. IV. STANDARD OF DECISION. Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a motion to dismiss for lack of subject matter jurisdiction. is a fundamental precept that federal courts are courts of limited jurisdiction. Limits upon federal jurisdiction must not It

be disregarded or evaded.

Owen Equipment & Erection Co. v.
The plaintiff has the burden

Kroger, 437 U.S. 365, 374 (1978).

to establish that subject matter jurisdiction is proper.

Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994).
This burden, at the pleading stage, must be met by pleading sufficient allegations to show a proper basis for the court to assert subject matter jurisdiction over the action. 14

McNutt v.

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General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Fed.
R. Civ. P. 8(a)(1). When a defendant challenges jurisdiction

facially, all material allegations in the complaint are assumed
true, and the question for the court is whether the lack of federal jurisdiction appears from the face of the pleading itself.

Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th

Cir. 2004). V. ANALYSIS A. Evidentiary Matters.

1.

Requests for Judicial Notice.
a. Defendants' Request for Judicial Notice.

Defendants jointly request judicial notice of six documents pertaining to the BDCP, Doc. 110, all of which are officially published online at the BDCP's website, 4 rendering them "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201.

All six documents are judicially noticeable for their existence and content, although not for the truth of the matters asserted therein. In addition, three of the documents, the BDCP "Overview

and Update" (Mar. 2009), Planning Agreement (Oct. 2006), and "Points of Agreement" (Nov. 2007), are properly considered because they are relied upon extensively in the Complaint.

Inlandboatmens Union of Pac. v. Dutra Grp., 279 F.3d 1075, 1083
(9th Cir. 2002) (although generally a district court may not
4

http://resources.ca.gov/bdcp

15

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consider material beyond the pleadings on a Rule 12(b)(6) motion, a document to which the complaint specifically refers may be considered if its authenticity is not questioned). Defendants' request for judicial notice is GRANTED in its entirety. b. Plaintiffs' Request for Judicial Notice.

Plaintiffs request that judicial notice be taken of thirty six (36) documents. Doc. 165. Many of these, namely Documents

1, 3-7, 9-15, 22-23, 25, 27-28, and 30-34, are statutes and/or regulations, which may be considered as a matter of course, without the necessity of judicial notice. Three others,

Documents 17, 26, and 29, are treatises on NEPA and/or CEQA, which, as generally recognized scholarly source material, may also be considered, but only as persuasive authority. Plaintiffs' Document 24 is a publication in the Federal Register, which is judicially noticeable pursuant to 44 U.S.C. § 1507 ("contents of the Federal Register shall be judicially noticed"). Documents 2 (BDCP Governance Working Group,

Preliminary Recommendations for Governance Structure), 8 (BDCP EIR/EIS Process Presentation), and 16 (Memorandum Agreement for Supplemental Funding), are judicially noticeable public documents available on the BDCP website, although they are not admissible for the truth of the matters asserted therein. Documents 18

through 21 are Memoranda and Handbooks concerning the 16

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implementation of NEPA, all of which are public records judicially noticeable for their content and existence. The same

applies to the opinions of the California Attorney General, Documents 35 and 36, which are judicially noticeable persuasive, but non-binding authority.

See Louis v. McCormick & Schmick

Restaurant Corp., 460 F. Supp. 2d 1153, 1156 n.4 (C.D. Cal.
2006). Plaintiffs' request for judicial notice is GRANTED as to Documents 2, 8, 16, 18-21, and 24, and DENIED, as unnecessary, as to all other documents, which, as statutory legal authorities, may be considered without taking judicial notice.

2.

Motion to Strike.

In support of their opposition to Defendants' motions, Plaintiffs filed the Declarations of John Herrick, Manager and General Counsel for South Delta Water Agency, Doc. 159, and Dante John Nomellini, Sr., Manager and Co-Counsel for Central Delta Water Agency, Doc. 158. The Water Agency Defendants move to

strike both declarations in their entirety. Water Agency Defendants argue that where motions to dismiss present either a facial attack under Federal Rule of Civil Procedure 12(b)(1) and/or arguments under Rule 12(b)(6), a court is limited to consideration of the allegations contained in the complaint, with two exceptions: First, a court may consider "material which is properly submitted as part of the complaint...." Second, under 17

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Fed. R. Evid. 201, a court may take judicial notice of "matters of public record."

Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001)
(internal citations omitted). Plaintiffs respond that extrinsic evidence is admissible here because the Water Agency Defendants' motion to dismiss actually is a factual attack on the complaint. Specifically,

Plaintiffs point to Page 4, lines 27-28 of the Wager Agency Defendants' Motion, which states: "Defendant Water agencies

bring a facial attack on subject matter jurisdiction, and join in the subject matter jurisdiction attacks brought by the other defendants." Doc. 118-2 at 4 (emphasis provided by Plaintiffs).

Plaintiffs suggest, without identifying any specific arguments in the other parties' papers, that other Defendants' motions to dismiss raise factual attacks. They do not. For example,

although several other parties challenge Plaintiffs' standing to sue, they do so based on the face of the complaint.

See Doc. 112

(Federal Defendants assert that despite allegations of procedural injury in the form of the publication of the NOIs and the decision to conduct scoping prior to issuance of a draft BDCP, Plaintiffs cannot possibly identify any harm to their concrete interests that are reasonably probable to result from these actions, because publication of an NOI and conducting scoping will not result in the undertaking of a project). The Herrick

and Nomellini declarations simply reiterate, albeit in greater 18

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detail, assertions in the complaint (e.g., that the issuance of the NOIs and the early scoping process make it impossible for Plaintiffs to meaningfully participate in the NEPA process). assertions in the complaint must be accepted as true. The The

Herrick and Nomellini declarations, even if admissible, cannot supplement the complaint. Similarly, several Defendants argue that Plaintiffs' NEPA claim is not ripe for review, see, e.g., Doc. 112-2 at 17-18, and/or that Plaintiffs' APA claim must be dismissed because no "final agency action" has been alleged, see, e.g., id. at 12-17. In response, Plaintiffs argue, relevant to one of the ripeness factors, that delayed review would cause them hardship, Doc. 157 at 22-23, and, relying on a possible exception to the general rule that review is only permissible under NEPA upon issuance of an EIS or related finding, that Plaintiffs will be irreparably harmed if the NEPA violations are not remedied at an early stage. The Herrick and Nomellini declarations do not add anything material to the facts of the complaint. These declarations

merely re-assert that the procedural injury will cause Plaintiffs hardship because they will be precluded from meaningfully participating in the NEPA process, and will irreparably harm Plaintiffs because the process being followed by the agencies may preclude Plaintiffs from properly informing Defendants of their concerns. These theories of harm and irreparable injury are more 19

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appropriately presented as legal argument. unnecessary.

Extrinsic evidence is

Water Agency Defendants' motion to strike the

Herrick and Nomellini declarations is GRANTED. The Water Agency Defendants also object to consideration of Exhibits 3, 9, 10, 11, 12, 13, and 21, attached to the Declaration of Glenn C. Hansen in Support of Plaintiffs' opposition. Docs. 160-64 & 173. Water Agency Defendants object

that these documents are not appropriately considered in the context of a facial attack under Rule 12(b)(1), nor are they subject to judicial notice. As to Exhibits 3, 10, and 21, these

correspond to Documents 2, 8, and 16, for which Plaintiffs' request for judicial notice was GRANTED, which moots these objections. As to Exhibits 9 (a June 24, 2008 letter from Environmental Defense Fund, Natural Heritage Institute, The Bay Institute, and the Nature Conservancy to California Assemblywoman Lois Wolk), 11 (a web page entitled "The Delta: A Water Source for Most

Californians" from The Nature Conservancy's Web Site), 12 (a web page entitled "Our Approach to Restoring Land, Water & Wildlife" from the Environmental Defense Fund website), and 13 (a web page entitled "Transforming How California Uses Water: Protecting the Sacramento-San Joaquin Bay-Delta, an ecosystem in Crisis" from the Environmental Defense Fund website), Plaintiffs contend that these documents are admissible as non-hearsay party admissions, 20

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citing Federal Rule of Civil Procedure 801(d)(2)(A) and 901, as well as United States v. Traylor, 656 F.2d 1326, 1332 (9th Cir. 1981). All of these "admissions" appear to relate to Plaintiffs'

theory that the Steering Committee is really a "joint venture" between all of its members.

See Doc. 157 at 7-8.

As the motions

to dismiss are resolved on other, justiciability grounds, it is not necessary to address Plaintiffs' joint venture theory or the related admissions. The Water Agency's motion to strike

Documents 9 and 11-13 are DENIED AS MOOT. B. Threshold Jurisdictional Issues

1.

Standing.

To maintain an action in federal court, Plaintiffs must have Article III standing.

See Lujan v. Nat'l Wildlife Fed'n, 497
"[T]o satisfy Article

U.S. 871, 872 (1990) ("Lujan v. NWF").

III's standing requirements, a plaintiff must show (1) [it] has suffered an `injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision."

Friends of the Earth v. Laidlaw Envtl.
In addition to

Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000).

the Article III requirements, which are jurisdictional, see

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341-42 (2006), a
21

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plaintiff who brings suit under the APA, 5 U.S.C. § 706, must also establish that it falls within the "zone of interest" of the statute under which the lawsuit is brought, see City of Sausalito

v. O'Neill, 386 F.3d 1186, 1199 (9th Cir. 2004).
The burden of establishing the elements of standing falls upon the party asserting federal jurisdiction.

Lujan v.

Defenders of Wildlife, 504 U.S. 555, 561 (1992) ("Lujan v. DOW").
"[E]ach element of Article III standing `must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.'"

Bennett,

520 U.S. at 167 (quoting Lujan v. DOW, 504 U.S. at 561). These requirements are relaxed somewhat where the injury alleged is procedural. In a "procedural injury" case, the

plaintiff must show that: "(1) the [agency] violated certain procedural rules; (2) these rules protect a plaintiff's concrete interests; and (3) it is reasonably probable that the challenged action will threaten their concrete interests."

Nuclear Info.

and Resource Serv. v. Nuclear Regulatory Comm'n, 457 F.3d 941,
949 (9th Cir. 2006). A cognizable procedural injury exists when a plaintiff alleges that a proper EIS has not been prepared under NEPA when the plaintiff also alleges a "concrete" interest-such as an aesthetic or recreational interestthat is threatened by the proposed action.

City of Sausalito, 386 F.3d at 1197.
22

The "concrete interest"

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

test has been described "as requiring a `geographic nexus' between the individual asserting the claim and the location suffering an environmental impact."

Ashley Creek Phosphate Co.

v. Norton, 420 F.3d 934, 938 (9th Cir. 2005) (quoting Cantrell v. City of Long Beach, 241 F.3d 674, 679 (9th Cir. 2001)).
It is not disputed that Plaintiffs Central and Southern Delta Water Agencies ("Delta Water Agencies") satisfy the "geographic nexus" and organizational standing requirements.

Hunt v. Washington State Apple Advertising Commission, 432 U.S.
333 (1977), sets forth the requirements for organizational standing: An association has standing to bring a suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

Id. at 343.
The owners of lands that lie within the Delta Water Agencies' geographic scope rely on diversions from the Delta for their water supply, and the potential BDCP action of "reducing South Delta exports" may negatively impact Delta Water Agencies: Reduction in south Delta exports, marginally increases salinity in the south and central Delta due to less dilution of saltier San Joaquin River Inflows and Delta island discharges, particularly in late summer and early fall. These increases in salinity would have minimal negative effects for covered species, but could have negative impacts for agricultural or municipal water users who divert from the south Delta if these 23

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salinity levels exceed those needed by these uses. Draft Overview at 32, 34. The interests Plaintiffs seek to

protect in this litigation are germane to the organizations' purposes. The Delta Water Agencies are political subdivisions of

the State of California, created by the legislature to ensure a dependable supply of water of suitable quality and acceptable salinity for the Delta to meet the needs of their constituent water users.

See Central Delta Water Agency v. United States,
The charters of the two

306 F.3d 938, 945, 951 (9th Cir. 2002).

Delta Water Agencies allow them to commence litigation to further their goals.

Id.

Finally, no argument has been made that any of

the claims alleged and/or relief sought by the Complaint requires the participation of individual landowners within Plaintiffs' areas of operation. However, although necessary, organizational standing is not sufficient to establish standing in a procedural injury case. Plaintiffs must still establish that "it is reasonably probable that the challenged action will threaten their concrete interests."

Nuclear Info. and Resource Serv, 457 F.3d at 949.

"[A] free-floating assertion of procedural violation, without a concrete link to the interest protected by the procedural rules, does not constitute an injury in fact." at 938.

Ashley Creek, 420 F.3d

Here, Federal Defendants argue that "plaintiffs cannot

show that it is reasonably probable that the challenged action 24

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will threaten their concrete interests.

This is because, unlike

most NEPA suits, the action challenged here is not the preparation (or lack thereof) of an EIS, but only the lead agencies' decision to publish an NOI and conduct scoping without first publishing a detailed draft of the BDCP." 10. Doc. 112-2 at

There are no prescribed rules or procedures that govern

preparation of the BDCP. The Complaint alleges that because the NOI is insufficiently detailed, Plaintiffs "cannot determine what impacts the BDCP will have nor whether it complies with the law." Compl. ¶117(c).

Plaintiffs also allege that the designation of multiple lead agencies "means that applicants, public officials and the general public do not know which NEPA procedures apply to the proposed project and therefore cannot know if the procedures are properly followed."

Id. at ¶117(b).

But, Plaintiffs do not set forth a

plausible basis for finding that these challenged actions (i.e., the failure to issue a sufficiently detailed NOI, and the designation of multiple lead agencies) are reasonably likely to harm their concrete interests in the Delta. It is possible that

the BDCP will be developed in such a manner that any perceived harm to their concrete interests will be eliminated. possible that no BDCP will be finalized at all. legal requirement that a BDCP be completed. challenge is premature. 25 It is also

There is no

In this sense, the

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This case is distinguishable from other situations in which it was "reasonably probable" that a procedural injury under NEPA would threaten a plaintiff's concrete interests. For example, in The

City of Sausalito, the plaintiff challenged a completed EIS.

Ninth Circuit did not require the plaintiff "to demonstrate that a procedurally proper EIS will necessarily protect [a] concrete interest...."

Id. at 1197.

Rather, it was enough to allege that

the plan approved by the EIS will result in harm to plaintiff's concrete interests.

Id. at 1199.

Put another way "if the plan

is not implemented the `reasonably probable' threat to [plaintiff's] concrete [] interests will have been removed."

Id.; see also Citizens for Better Forestry v. U.S. Dept of Agriculture, 341 F.3d 961, 975 (9th Cir. 2003).
Here, in

contrast, Plaintiffs have not and cannot allege that the BDCP will result in any harm, as no BDCP exists.

See Hawaii County

Green Party v. Clinton, 124 F. Supp. 2d 1173 (D. Haw.
2000)("Plaintiff cannot have suffered an injury in fact when Defendants have not yet taken final action."). Plaintiffs cannot demonstrate standing to bring a procedural injury claim under NEPA because it is not reasonably probable, at this early juncture in the process, that their concrete interests will be harmed. What Plaintiffs in substance seek is to

structure the BDCP process to their liking as to make their input "more effective." They have not and cannot allege they have been 26

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completely excluded from providing their input in any public scoping process. Plaintiffs' NEPA claim must be dismissed for

lack of subject matter jurisdiction WITH PREJUDICE AND WITHOUT LEAVE TO AMEND.

2.

Ripeness.

Alternatively, Defendants argue that Plaintiffs' claims are not ripe for review. Ripeness has both a constitutional and

prudential requirement designed "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties."

Abbott Labs. v.

Gardner, 387 U.S. 136, 148-49 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99 (1977).
In determining whether

a case is ripe, a court considers: "(1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented."

Ohio

Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998).
a. Hardship.

Plaintiffs assert that delayed review would cause them "hardship" because they would be unable to exercise their 27

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procedural rights under NEPA.

Doc. 157 at 22.

In support of

this assertion, Plaintiffs rely on a quote from Ohio Forestry, 523 U.S. at 737, in which the Supreme Court stated that "a person with standing who is injured by a failure to comply with the NEPA procedure may complain of that failure at the time the failure takes place, for the claim can never get riper." must be considered in context. This language

Ohio Forestry concerned an

environmental group's challenge to the approval of a Forest Management Plan ("FMP") for the Wayne National Forest in Ohio. The Supreme Court held that the challenge to the FMP was not ripe for review. With respect to the hardship prong, the Court

concluded that to withhold judicial consideration of plaintiffs' claims would not cause hardship "as this court has come to use that term" because the provisions of the plan challenged by plaintiff "do not create adverse effects "of a sort that traditionally would have qualified as harm," meaning: they do not command anyone to do anything or to refrain from doing anything; they do not grant, withhold, or modify any formal legal license, power, or authority; they do not subject anyone to any civil or criminal liability; they create no legal rights or obligations. Thus, for example, the Plan does not give anyone a legal right to cut trees, nor does it abolish anyone's legal authority to object to trees being cut.

Id. at 733.

The Court reasoned:

Nor have we found that the Plan now inflicts significant practical harm upon the interests that the Sierra Club advances-an important consideration in light of this Court's modern ripeness cases. See, e.g., Abbott Laboratories, supra, at 152-154. As we have 28

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pointed out, before the Forest Service can permit logging, it must focus upon a particular site, propose a specific harvesting method, prepare an environmental review, permit the public an opportunity to be heard, and (if challenged) justify the proposal in court. Supra, at 1668-1669. The Sierra Club thus will have ample opportunity later to bring its legal challenge at a time when harm is more imminent and more certain. Any such later challenge might also include a challenge to the lawfulness of the present Plan if (but only if) the present Plan then matters, i.e., if the Plan plays a causal role with respect to the future, then-imminent, harm from logging. Hence we do not find a strong reason why the Sierra Club must bring its challenge now in order to get relief. Cf. Abbott Laboratories, supra, at 152.

Id. at 733-34 (parallel citations omitted).
The Court supported its finding that the challenges to the FMP were not ripe for review by noting that "Congress has not provided for preimplementation judicial review of forest plans."

Id. at 737.

The Court reasoned that an FMP, "which through

standards guides future use of forests," does not "resemble an environmental impact statement prepared pursuant to NEPA."

Id.

That is because in this respect NEPA, unlike the NFMA, simply guarantees a particular procedure, not a particular result. Compare 16 U.S.C. § 1604(e) (requiring that forest plans provide for multiple coordinated use of forests, including timber and wilderness) with 42 U.S.C. § 4332 (requiring that agencies prepare environmental impact statements where major agency action would significantly affect the environment). Hence a person with standing who is injured by a failure to comply with the NEPA procedure may complain of that failure at the time the failure takes place, for the claim can never get riper.

Id. (emphasis added).
Plaintiffs suggest that this passage means that a violation of NEPA procedures, at any time during the NEPA process, is 29

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automatically ripe for review.

This reading of Ohio Forestry is

unreasonable and unjustifiably interventionist, as it would effectively grant any party the right to judicially interfere with the administrative process without regard to ripeness in any NEPA procedural injury case. A more reasonable reading of this

language is found in Sierra Club v. U.S. Army Corps of Engineers, 446 F.3d 808, 815 (8th Cir. 2006)("Sierra Club v. USACE"), interpreting this passage to mean that "[t]he Supreme Court has strongly signaled that an that an agency's decision to issue either a [Finding of No Significant Impact] or an [EIS] is a `final agency action' permitting immediate judicial review under NEPA." 5

Plaintiffs' reliance on Sierra Club v. USACE is similarly misplaced. There, the Army Corps of Engineers issued an Environmental Assessment ("EA") and Finding of No Significant Impact ("FONSI"), in lieu of an EIS, for a project to construct a levee in Jefferson City, Missouri. The government moved to dismiss environmental plaintiff's NEPA challenge, arguing that there was no final agency action by the Corps because it had not yet entered into agreements with the City to construct the levee, nor had it received funding from Congress for the project. Id. The district court concluded the environmental plaintiffs lacked standing because no injury was certain to occur until the relevant agencies took additional steps to finalize a levee project. Id. at 816. The Eighth Circuit reversed, reasoning that "[i]njury under NEPA occurs when an agency fails to comply with that statute, for example, by failing to issue a required environmental impact statement," and concluded, without providing any reasoning, that "the NEPA dispute was ripe for judicial review when the lawsuit was filed...." Id. (citing Ohio Forestry, 523 U.S. at 737). Plaintiffs' partially quote this case to argue that under NEPA "injury occurs when an agency fails to comply with the statute....," but neglect to acknowledge that the remainder of this sentence adds the qualification: "for example, by failing 30

5

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Plaintiffs next cite a quote from Sierra Club v. Marsh, 714 F. Supp. 539, 590 (D. Maine 1989): The ultimate harm protected by NEPA is harm to the environment, the risk of bureaucratic commitment may cause real harm to the environment where, as under NEPA, the court may not compel the agency to reach a different result, but may only compel agency reconsideration of its earlier decision in light of the new information acquired through recourse to the NEPA process.

Marsh entailed an application for a preliminary injunction to bar
the continuation of a construction project.

Id. at 543.

Here,

Plaintiffs apparently contend that the showing of "irreparable harm" required to obtain a preliminary injunction is equivalent to the ripeness "hardship" analysis. Even assuming, arguendo,

this contention is valid, its application to this case is not. The Marsh court found that no irreparable injury would likely result from initiation of the second phase of the construction project, and that even if plaintiffs were likely to succeed on the merits of their NEPA claims, "a likelihood of irreparable physical harm to the environment would have to be demonstrated in order to obtain preliminary injunctive relief."

Id. at 543.

The First Circuit reversed, reasoning that NEPA

"seeks to create a particular bureaucratic decisionmaking process, ... whereby administrators make important decisions with an informed awareness of how the decision might significantly to issue a required environmental impact statement." Id. at 816. This case, like Ohio Forestry, stands for no more than that a plaintiff's injury is complete once an agency fails to complete an EIS where one is required. 31

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

affect the environment." Cir. 1989).

Sierra Club v. Marsh, 872 F.2d 497 (1st

"[I]f any such decision is made without the

information that NEPA seeks to put before the decisionmaker, the harm that NEPA seeks to prevent occurs."

Id.

[T]he harm at stake is a harm to the environment, but the harm consists of the added risk to the environment that takes place when governmental decisionmakers make up their minds without having before them an analysis (with prior public comment) of the likely effects of their decision upon the environment. NEPA's object is to minimize that risk, the risk of uninformed choice, a risk that arises in part from the practical fact that bureaucratic decisionmakers (when the law permits) are less likely to tear down a nearly completed project than a barely started project. In Watt we simply held that the district court should take account of the potentially irreparable nature of this decisionmaking risk to the environment when considering a request for preliminary injunction.

Id. at 500-01 (emphasis in original).
On remand, the district court reasoned: A NEPA violation which deprives agency decisionmakers of an informed awareness of significant environmental consequences of the challenged action is deemed harmful to the environment, by virtue of the added risk to the environment, ... that arises in part from the practical fact that bureaucratic decisionmakers (when the law permits) are less likely to tear down a nearly completed project than a barely started project. 714 F. Supp. 539 at 546 (internal citations and quotations omitted). Critically, in Marsh, the environmental review had

already taken place, approving continued construction on the project. The question in Marsh was whether continued

construction should be enjoined while plaintiffs' claim that the NEPA process had been inadequate was being litigated. case, if a NEPA procedural violation deprives agency 32 In such a

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decisionmakers of an informed awareness of significant environmental consequences, such a procedural violation may be deemed harmful to the environment, "by virtue of the added risk to the environment, ... that arises in part from the practical fact that bureaucratic decisionmakers ... are less likely to tear down a nearly completed project than a barely started project."

Id.
Here, the issue is very different. No project has yet been

formulated, nor can the record possibly reveal whether any NEPA procedural violation has deprived agency decisionmakers of an informed awareness of significant environmental consequences. Plaintiffs suggest that they have suffered "hardship" because they have been unable to meaningfully comment on the scope of the EIS/EIR, which resulted in uninformed decision-making in determining the scope of environmental review. While the

environmental review process is in progress and incomplete, there is no way to know what the ultimate scope of the environmental review will be. Plaintiffs also suggest that the "harm cannot be undone after the EIS has been approved because the decision-makers' judgment has been biased by the previously completed process." Doc. 157 at 23. the law. This species of hardship is not recognized in

A very similar argument was rejected in Muhly v. Espy,

877 F. Supp. 294, 300 (W.D. Va. 1995), where plaintiffs argued 33

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that "omission from the scoping process ... irreparably harmed them and that additional meetings with agency personnel will be meaningless." Citing the Ninth Circuit's analogous decision in

Northwest Coalition for Alternatives to Pesticides v. Lyng, 844
F.2d 588 (9th Cir. 1988), Muhly reasoned that, absent allegations of bad faith on the part of the agency, plaintiffs were not harmed by omission from the scoping process because plaintiffs would have ample opportunity to be heard in upcoming meetings and public comment processes concerning a draft EIS.

Id. at 301; see

also Bennet Hills Grazing Assoc. v. United States, 600 F.2d 1308,
1309 (9th Cir. 1979) (request for injunction against agency proceeding with preparation of final EIS until plaintiffs had been given ninety days in which to comment on draft EIS not ripe for review because plaintiffs failed to show that judicial review after preparation of the FEIS would be inadequate as a matter of law). The same conclusion is warranted here. Absent an allegation

of bad faith, which is not made, procedural irregularities in the early stages of the NEPA process cannot result in harm because Plaintiffs will have additional legally-guaranteed opportunities to participate. b. Plaintiffs have not demonstrated hardship. Interference with Further Administrative Action.

The next ripeness factor concerns whether judicial intervention would inappropriately interfere with further 34

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administrative action.

Ohio Forestry, 523 U.S. at 733.

Defendants maintain that Plaintiffs' judicial intervention into the NEPA process would prove to be enormously disruptive. 177 at 3 (Federal Defendant's Reply). The collaborative BDCP effort among the many federal, state, and local government agencies, water districts, non-governmental entities, and others is a substantial undertaking, recognizing the critical need for a different approach to conserve the many valuable resources of the Bay-Delta region and the water supply system that serves much of California and which depends on restoring a healthy ecosystem. While the two plaintiff organizations and perhaps others may not support the initial planning effort, their evident dissatisfaction does not warrant the type of extraordinary intervention by the federal judiciary that the plaintiffs seek to impose. Doc.

Id.
Plaintiffs respond, incomprehensibly, that because it is undisputed that the BDCP has yet to be defined, "judicial review of the NOI at this stage would ensure that, once the project is defined, the environmental review process is properly initiated and the decision-making process properly informed." 23. Doc. 157 at

This turns the ripeness doctrine on its head, the purpose of

which is "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." 49. Plaintiffs rely on Citizens for Better Forestry, 341 F.3d at 35

Abbott Labs., 387 U.S. at 148-

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

970-971, 977 (9th Cir. 2003) ("CBF"), to support the proposition that, where procedural statutes are at issue, courts have held claims to be ripe despite related on-going administrative processes. In CBF, the Ninth Circuit held that a NEPA challenge

to a rule would not interfere with further administrative action, despite the fact that the agency was working to produce a replacement rule.

Id. at 977.

But, there, the Ninth Circuit

specifically found that the administrative process "is at a resting place," because the original rule exists as an optional protocol for the agency to follow while the new rule is being developed.

Id.

Here, the administrative process is undisputedly

ongoing and no decision or rule has been made or promulgated. Plaintiffs raise Trustees for Alaska v. Hodel, 806 F.2d 1378, 1381 (9th Cir. 1986), as an example of judicial intervention. The facts of Trustees for Alaska are entirely

distinguishable.

Trustees for Alaska addressed whether a

Legislative Environmental Impact Report ("LEIS") for a statutorily-required report to Congress should be distributed for public comment before submission of that Report to Congress. Ninth Circuit held that plaintiffs' challenge to the agency's "clear and final" decision not to provide for presubmission public review and comment of the completed LEIS was ripe, otherwise Congress might act on the Report, effectively causing the plaintiffs to lose their rights to make pre-submission public comments on the LEIS. The

Id. at 1381; see also Sierra Club v. U.S.

Dept. of Energy, 287 F.3d 1256, 1263 (10th Cir. 2002)(challenge
to agency decision not to conduct NEPA or ESA analyses before granting an easement to construct road was ripe, despite fact 36

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that construction could not proceed without other approvals). Here, by contrast, no portion of the BDCP NEPA review process has yet reached a "clear and final" endpoint. Plaintiffs' also rely on National Wilderness Institute v.

U.S. Army Corps of Engineers, 2001 U.S. Dist. LEXIS 25930 (D.D.C.
2001). In that case, plaintiffs alleged that the defendant

agencies did not conduct a consultation under the ESA with respect to the operation of an aqueduct, from which certain discharges were allegedly harming listed species.

Id. at *19.

Defendants there argued that this challenge was not ripe for review because the Environmental Protection Agency ("EPA") was, at that time, in the process of issuing a new permit for the discharges under the Clean Water Act ("CWA").

Id. at *17.

The

District of Columbia district court held that although the CWA permitting process was ongoing, plaintiffs' ESA challenge to the aqueduct was ripe.

Id. at *17-18.

Here, Plaintiffs' only

federal claim is based on alleged failure to comply with pre-EIS NEPA procedures in connection with the development of the BDCP. Allowing this claim to proceed would unwarrantedly interfere with ongoing administrative scoping, planning and formulation activities, which would make it impossible for the agency to "correct its own mistakes and ... apply its expertise."

Ohio

Forestry, 523 U.S. at 735.
This factor weighs against assertion of jurisdiction. c. Benefit from Further Factual Development.

The final ripeness factor is whether the courts would benefit from further factual development of the issues presented. 37

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Ohio Forestry, 523 U.S. at 733.

This factor supports dismissal

where further factual development may provide additional focus, the agency may revise the plan, or review may ultimately become unnecessary.

See Ohio Forestry, 523 U.S. at 736.

Plaintiffs maintain that "[t]he NOI is a self-contained notice that must inherently be based on the factual background that exists prior to its issuance. Therefore, there is no

further factual background to develop, and the NEPA claims are ripe for judicial review." Doc. 157 at 24. This overly myopic

view of the ripeness cannot be the law.

Here, the planning

process is ongoing and subject to negotiations among many stakeholders with widely competing interests. The factual record

will benefit in numerous ways from further development in a dynamic and constantly changing water system where complex hydrodynamics and ecological considerations are continuously in flux. Additionally, scientific studies of the impact of Project

operations on threatened species that have precipitated altered flow and water delivery regimes are ongoing. Moreover, the

agency may (1) issue additional NOIs, updating the public on developments in the BDCP process; (2) conduct further scoping meetings; (3) issue a draft BDCP and allow public comment on that; (4) fundamentally alter or abandon the currently preferred BDCP alternative; or (5) abandon the project altogether for any number of reasons. Resolution of Plaintiffs claims is reasonably 38

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likely to benefit greatly from further factual development by the administrative agenc