South Yuba River Citizens League et al v. National Marine Fisheries Service et al

Filing 462

ORDER signed by Judge Lawrence K. Karlton on 2/2/12 ORDERING that Plaintiffs' MOTIONS 445 , 446 , 447 are DENIED. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SOUTH YUBA RIVER CITIZENS
LEAGUE and FRIENDS OF THE
RIVER,
NO. CIV. S-06-2845 LKK/JFM

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Plaintiffs,
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v.

O R D E R

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NATIONAL MARINE FISHERIES
SERVICE, et al.,
Defendants.
/

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Plaintiffs in this case have challenged a Biological Opinion

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issued by the National Marine Fisheries Service (“NMFS”) related

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to two dams on the South Yuba River operated by the Army Corps of

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Engineers (“the Corps”). Pending before the court are three motions

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filed by plaintiffs: a motion for partial reconsideration of this

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court’s Final Remedy Order, a motion for partial reconsideration

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of this court’s dismissal of Claim 4B as prudentially moot, and a

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motion for partial summary judgment on Claim 4B. Plaintiffs request
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that the court consider the latter two motions only if the first

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motion is denied. The court resolves the instant motions on the

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papers and after oral argument. For the reasons stated herein

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plaintiffs’ motions are DENIED.

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I. Factual and Procedural Background

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Plaintiffs filed the operative Sixth Amended Complaint on June

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17, 2008. ECF No. 150. Although the complaint alleged eleven claims

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for relief, only Claims 3 and 4 were adjudicated on the merits.

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With respect to Claim 3, plaintiffs successfully challenged the

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conclusions reached in a Biological Opinion issued by National

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Marine

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government had acted arbitrarily and capriciously in issuing the

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Biological Opinion, because the BiOp concluded that the operation

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of the dams would pose “no jeopardy” to the threatened fish, when

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that conclusion was not supported by the record. ECF No. 316. In

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April 2011 the matter was remanded to the National Marine Fishery

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Service to prepare a new Biological Opinion consistent with the

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court’s July Order by December 12, 2011. ECF No. 398. This deadline

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was later extended to February 29, 2012. In July 2011, this court

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issued a further remedial order (“Remedial Order”), adopting some

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interim remedial measures proposed by plaintiffs. ECF No. 402. Of

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relevance to the pending motions, the court denied plaintiffs’

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requested “Measure 9,” which would have required the Corps to

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develop a final plan and implement a project to plant native

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riparian vegetation on a parcel of land on the lower Yuba River.

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Although the court concluded that woody debris is a necessary

Fishery

Service.

In

July

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2010,

this

court

held

that

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element of spawning habitat for the threatened species, and that

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the lack of woody debris caused by Englebright dam was a stressor

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on those species, the court declined to adopt Measure 9 because

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plaintiffs had not shown that irreparable injury to the threatened

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species

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concluding, the court noted that Measure 9 was similar to a

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mitigation measure called for in the Incidental Take Statement

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issued pursuant to the 2007 BiOp, but also held that plaintiffs’

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expert testimony did not establish that the lack of woody debris

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would cause irreparable harm in the interim period before a new

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BiOp is issued. Plaintiffs’ expert said that the increase of woody

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debris would be “very beneficial” to spring Chinook and steelhead,

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but not that it was necessary to prevent irreparable harm. Remedial

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Order 42.

would

occur

in

the

absence

of

the

Measure.

In

so

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Claim 4 is divided into two analytical parts: Claim 4A alleged

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that the Incidental Take Statement was invalid such that it could

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never shield the Corps from liability for take of the listed

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species. The court granted summary judgment to defendants on this

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claim. See ECF No. 316 at 71. Claim 4B alleged that the Corps had

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violated the terms and conditions imposed by the Incidental Take

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Statement. On November 16, 2010, after supplemental briefing on the

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issue the court dismissed as prudentially moot plaintiffs’ claim

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4B, holding that reaching the merits of the claim would not

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potentially serve to award plaintiffs any meaningful relief. ECF

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No. 343.

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Plaintiffs now seek reconsideration of the portion of this
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court’s Remedial Order. Specifically, plaintiffs ask the court to

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reconsider its denial of a Proposed Measure 9. Plaintiffs now seek

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a modified remedial measure with respect to replenishing woody

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debris in the Yuba River. Plaintiffs’ requested measure calls for

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“logs and or other large wood to be placed on the riverbank in the

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reach of the river between Parks Bar and Hammon Bar along the

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margins of the main active channel.” Pls.’ Mot. Recon 8, ECF No.

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445.

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Plaintiffs offer two other motions as an alternative if the

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court does not grant reconsideration of the remedial order. In the

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two latter motions, plaintiffs see reconsideration of the court’s

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dismissal of Claim 4B as prudentially moot, and summary judgment

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on the merits of Claim 4B.

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III. Standards
A. Standard for a Motion for Reconsideration

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Federal Rule of Civil Procedure 60(b) provides: “On motion and

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just terms, the court may relieve a party . . . from a final

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judgment, order, or proceeding” in the case of mistake or excusable

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neglect, newly discovered evidence, fraud, a judgment that is void,

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satisfaction of the judgment, or for “(6) any other reason that

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justifies relief.” Fed. R. Civ. P. 60(b). This catch-all provision

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of Rule 60(b)(6) “vests power in courts adequate to enable them to

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vacate judgments whenever such action is appropriate to accomplish

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justice.”

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Rule 60(b) “attempts to strike a proper balance between the

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conflicting principles that litigation must be brought to an end

Klapprott v. United States, 335 U.S. 601, 615 (1949).

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and that justice should be done.” Delay v. Gordon, 475 F.3d 1039,

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1044 (9th Cir, 2007)(quoting 11 Wright & Miller Federal Practice

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& Procedure § 2851 (2d ed. 1995).

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relief

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“extraordinary

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Acquisition Corp., 486 U.S. 847 (1988)(quoting Ackermann v. United

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States, 340 U.S. 193, 199 (1950)).

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In

under

Rule

60(b)(6),

Nonetheless, in order to seek
the

circumstances.”

addition,

Local

Rule

movant

Liljeberg

230(j)

must
v.

applies

demonstrate

Health

to

Services

motions

for

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reconsideration filed in the Eastern District. That rule requires

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the movant to brief the court on, inter alia, “what new or

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different facts or circumstances were not shown upon such prior

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motion, or what other grounds exist for the motion; and why the

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facts or circumstances were not shown at the time of the prior

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motion.”

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B. Standard for a Motion for Summary Judgment

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Summary judgment is appropriate “if the movant shows that

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there is no genuine dispute as to any material fact and the movant

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is entitled to judgment as a matter of law.”

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56(a); Ricci v. DeStefano, 557 U.S. ___, 129 S. Ct. 2658, 2677

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(2009) (it is the movant’s burden “to demonstrate that there is ‘no

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genuine issue as to any material fact’ and that they are ‘entitled

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to judgment as a matter of law’”); Walls v. Central Contra Costa

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Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011) (same).

Fed. R. Civ. P.

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Consequently, “[s]ummary judgment must be denied” if the court

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“determines that a ‘genuine dispute as to [a] material fact’

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precludes immediate entry of judgment as a matter of law.”
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Ortiz

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v. Jordan, 562 U.S. ___, 131 S. Ct. 884, 891 (2011), quoting Fed.

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R. Civ. P. 56(a); Comite de Jornaleros de Redondo Beach v. City of

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Redondo

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Cir. September 16, 2011) (same).

Beach,

___

F.3d

___,

2011

WL

4336667

at

3

(9th

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Under summary judgment practice, the moving party bears the

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initial responsibility of informing the district court of the basis

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for its motion, and “citing to particular parts of the materials

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in the record,” Fed. R. Civ. P. 56(c)(1)(A), that show “that a fact

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cannot be ... disputed.”

Fed. R. Civ. P. 56(c)(1); In re Oracle

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Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010)

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(“The moving party initially bears the burden of proving the

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absence of a genuine issue of material fact”), citing Celotex v.

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Catrett, 477 U.S. 317, 323 (1986).

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If the moving party meets its initial responsibility, the

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burden then shifts to the non-moving party to establish the

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existence of a genuine issue of material fact.

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Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986);

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Oracle Corp., 627 F.3d at 387 (where the moving party meets its

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burden,

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designate specific facts demonstrating the existence of genuine

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issues for trial”). In doing so, the non-moving party may not rely

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upon the denials of its pleadings, but must tender evidence of

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specific facts in the form of affidavits and/or other admissible

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materials in support of its contention that the dispute exists.

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Fed. R. Civ. P. 56(c)(1)(A).

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“the

burden

then

shifts

to

the

Matsushita Elec.

non-moving

party

to

“In evaluating the evidence to determine whether there is a
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genuine issue of fact,” the court draws “all reasonable inferences

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supported by the evidence in favor of the non-moving party.”

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Walls, 65.3 F.3d at 966.

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inferences “supported by the evidence,” it is the non-moving

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party’s obligation to produce a factual predicate as a basis for

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such inferences.

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898, 902 (9th Cir. 1987).

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simply show that there is some metaphysical doubt as to the

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material facts ....

Because the court only considers

See Richards v. Nielsen Freight Lines, 810 F.2d
The opposing party “must do more than

Where the record taken as a whole could not

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lead a rational trier of fact to find for the nonmoving party,

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there is no ‘genuine issue for trial.’”

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586-87 (citations omitted).

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Matsushita, 475 U.S. at

III. Analysis

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A. Whether the Court has Jurisdiction to Hear the Instant

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Motions

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Defendants argue that this court lacks jurisdiction to hear

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plaintiff’s motions because the Endangered Species Act requires

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plaintiffs to give sixty-days notice to an alleged violator of the

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Act before bringing suit under the citizen-suit provision.

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The citizen-suit provision of the ESA provides that any person

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may commence a civil suit under the act, but that “no action may

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be commenced. . . prior to sixty days after written notice of the

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violation has been given to the Secretary [of Commerce or of the

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Interior] and to any alleged violator of any such provision or

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regulation.” 16 U.S.C. § 1540(g)(2)(A)(I). The sixty-day notice

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requirement is jurisdictional; courts lack jurisdiction to hear a
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claim where plaintiffs have failed to give proper written notice.

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Save the Yaak Committee v. Block, 840 F.2d 714, 721 (9th Cir.

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1988). The purpose of the notice requirement is to give the

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defendant an opportunity to come into compliance without a lawsuit.

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Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.,

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484 U.S. 49, 60 (1987).

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The written notice need not “list every specific aspect or

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detail of every alleged violation. Nor is the citizen required to

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describe every ramification of a violation.” Cmty. Ass'n for

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Restoration of the Env't v. Henry Bosma Dairy, 305 F.3d 943, 951

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(9th Cir. 2002)(quoting Pub. Interest Research Group v. Hercules,

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Inc., 50 F.3d 1239, 1248 (3d Cir. 1995)). The notice must allow the

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alleged violator to know what it is doing wrong and what corrective

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action will prevent a lawsuit. Id. Interpreting a similar citizen-

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suit provision in the Clean Water Act, the Third Circuit has held

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that violations discovered subsequent to the sending of written

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notice may be included in the suit, so long as they are directly

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related to what is in the notice. Public Interest Research Group

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v. Hercules, Inc., 50 F.3d 1239, 1248 (3d Cir. 1995).

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In this case, plaintiffs sent written notice to the defendants

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and to the Secretary of Commerce on November 30, 2007. 2007 NOI

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Letter, ECF No. 456-1. The letter alleged that the Corps was taking

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listed species in violation of ESA Section 9 because it was

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operating

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Specifically, the letter alleged “Englebright stands as a barrier

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(as it is at all times) to the passage of gravel and woody debris

outside

of

a

valid

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Incidental

Take

Statement.

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necessary for creation of healthy spawning, rearing, and sheltering

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habitat for the listed species.” Id. at 16. The letter further

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alleged that the Corps had failed to comply with the terms and

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conditions required by the ITS. Specifically, the ITS included five

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measures to minimize the take of listed species, including “(2) The

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Corps must complete a study to detennine an effective method for

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replenishing into the Yuba River the supply of large woody material

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that is trapped by Englebright and upstream reservoirs and then

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develop and commence implementing a long-term program to replenish

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woody debris in the River within 4 years.” Id. at 13. The letter

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went on to allege that the “Corps is not currently performing such

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actions as needed to comply with these terms and conditions.” Id.

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This

letter

provided

notice

to

the

defendants

of

what

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plaintiffs claims were, and how the defendants could come into

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compliance. Without concluding that the notice requirement applies

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to

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adjudicated, the court concludes that the 2007 notice letter

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satisfies any notice requirement that might apply.

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B. Whether Plaintiffs’ Requested Woody Debris Replenishment

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Measure is Necessary to Prevent Irreparable Harm

requests

for

remedies

on

claims

that

have

already

been

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As noted in the Remedial Order, interim injunctive measures

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are warranted only if the measures are necessary to prevent

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irreparable

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inadequate to compensate for that injury, whether the balance of

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hardships weigh in favor of injunctive relief, and whether the

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public interest would be served by the injunction. Under the

injury,

whether

remedies

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available

at

law

are

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Endangered Species Act, the third and fourth factors listed always

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tip in favor of protecting the species. Tennesee Valley

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Authority v. Hill, 437 U.S. 153 (1978) (“Congress has spoken in the

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plainest of words, making it abundantly clear that the balance has

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been struck in favor of affording endangered species the highest

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of priorities."). Thus, “the balance of hardships and the public

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interest tip heavily in favor of endangered species. We may not use

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equity’s scales to strike a different balance.” Sierra Club v.

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Marsh, 816 F.2d 1376, 1383 (9th Cir. 1987). Additionally, in

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environmental cases, it is presumed that remedies at law are

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inadequate. "Environmental injury, by its nature, can seldom be

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adequately remedied by money damages and is often permanent or at

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least of long duration, i.e., irreparable. Cal. ex rel. Lockyer v.

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United States Dep't of Agric., 2009 U.S. App. LEXIS 19219 (9th Cir.

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2009).

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Thus, the court only needs to determine whether plaintiff has

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shown that irreparable harm to the listed species will result from

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defendants’ violation of the ESA in the absence of the measures

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requested by plaintiffs.

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This court held that plaintiffs’ previously submitted evidence

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did not meet that burden with respect to proposed Measure 9, and

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noted that the measure was redundant with Term and Condition 2 of

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the Incidental Take Statement, which was “currently in effect.”

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Remedial Order 42.
Plaintiffs now submit evidence showing that any action that

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the

defendants

have

taken

towards
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compliance

with

Term

and

1

Condition 2 has not improved the woody debris habitat. That term

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called for defendants to commence implementation of a program to

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bring woody material to the lower Yuba River by November 21, 2011.

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BiOp at 40, ECF No. 84-2. The Biological Assessment prepared by

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defendants in preparation for issuing a new BiOp on remand states

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that, with respect to Term and Condition 2, “the Corps has

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identified a potential source of large woody material and initiated

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a

9

management.” Biological Assessment, Ex. 1 to Sproul Decl., ECF No.

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445-5. The Biological Assessment goes on to say that the Corps will

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conduct another pilot project to determine where and how to place

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woody debris within one year of the completion of the new BiOp, and

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that it will implement a long-term large woody material management

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plan within one year following completion of this pilot. Id.

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According to the Biological Assessment, then, implementation of the

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program will not occur until February 29, 2014, or two years from

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the completion of a new BiOp.

study

to

determine

a

feasible

method

of

woody

material

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Plaintiffs assert that any representations made by defendant

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that proposed Measure 9 was not necessary because it was redundant

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with Term and Condition 2 should be disregarded in light of

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defendants’

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implemented.

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testimony stating that “the ability of juvenile salmonids to

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survive and thrive in the Yuba has been harmed” by the loss of

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habitat, including woody material. Reedy Decl. ¶ 14, ECF No. 445-1.

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The expert calls the need for woody material “urgent.”

disclosure

that

Additionally,

the

program

plaintiffs

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have

had

not

yet

submitted

been
expert

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Plaintiffs’ requested interim measure would require the Corps

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to “complete an implementation plan” by March 30, 2012, and then

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to implement the plan by June 30, 2012, subject to review by

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various state and federal agencies and by plaintiff SYRCL.

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Although

the

court

is

persuaded

that

any

actions

that

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defendants have taken to restore woody debris to the subject area

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have not resulted in an improvement of habitat for the listed

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species, and that prompt action is needed to protect the species

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from jeopardy, the court declines to adopt the measure plaintiffs’

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request because it will provide no benefit to the listed species

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before the new BiOp is issued on February 29, 2012. Accordingly,

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plaintiffs’ motion for reconsideration of this court’s remedial

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order is DENIED.

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B. Whether Reconsideration is Warranted on Claim 4B

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The court declines to reconsider its holding that Claim 4B is

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prudentially moot for the same reason: the court can offer no

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meaningful relief on Claim 4B in light of the forthcoming BiOp, and

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Incidental Take Statement.

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Prudential

mootness

arises

from

doctrines

of

remedial

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discretion. Sierra Club v. Babbitt, 69 F. Supp. 2d 1202, 1244 (E.D.

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Cal.

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considering whether to exercise its discretion in granting relief

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is “have circumstances changed since the beginning of litigation

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that forestall any occasion for meaningful relief.” Id. It is

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within a district court’s “sound discretion [to] withhold[] the

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remedy where it appears that a challenged ‘continuing practice’ is,

1999)(ISHI).

The

central

inquiry

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for

a

district

court

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at the moment adjudication is sought, undergoing significant

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modification so that its ultimate form cannot be confidently

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predicted.” A. L. Mechling Barge Lines, Inc. v. United States, 368

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U.S. 324, 331 (1961).

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As noted, defendants’ new BiOp is due on February 29, 2012.

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The BiOp is very likely to be accompanied by a new Incidental Take

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Statement, including terms and conditions having to do with woody

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debris. The court elects to exercise its sound discretion to

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withhold the remedy requested here, given the forthcoming BiOp.

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Here, the court is guided by “considerations of prudence and comity

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for the coordinate branches of government. . . stay its hand, and

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to withold relief it has the power to grant.” Sierra Club, 69 F.

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Supp. 2d ant 1244.

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Having declined to reconsider the holding that Claim 4B is

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prudentially moot, the court need not proceed to the merits of the

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claim.
IV. Conclusion

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For the foregoing reasons, plaintiffs’ motions, ECF Nos. 445,
446, and 447, are DENIED.

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IT IS SO ORDERED.

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DATED: February 2, 2012.

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