Friends of the River v. National Marine Fisheries Service et al

Filing 62

ORDER signed by District Judge John A. Mendez on 2/21/2018 DENYING Plaintiff's 33 Motion for Summary Judgment, GRANTING Defendants' 38 Motion for Summary Judgment, and GRANTING Intervenor's 41 Motion for Summary Judgment. CASE CLOSED. (York, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FRIENDS OF THE RIVER, 12 13 No. 2:16-cv-00818-JAM-EFB Plaintiff, v. ORDER DENYING PLAINTIFF’S MOTION 14 NATIONAL MARINE FISHERIES FOR SUMMARY JUDGMENT, GRANTING 15 SERVICE, et al., FEDERAL DEFENDANTS’ MOTION FOR 16 Defendants. SUMMARY JUDGMENT, AND GRANTING 17 INTERVENOR’S MOTION FOR SUMMARY 18 JUDGMENT 19 20 21 I. INTRODUCTION This litigation concerns three species of threatened fish 22 and two federally-managed dams in the Yuba River. 23 River (“Plaintiff” or “FOR”) sued the United States Army Corps of 24 Engineers (the “Corps”) and National Marine Fisheries Service 25 (“NMFS”) (collectively, “Federal Defendants”) alleging violations 26 of the Endangered Species Act and Administrative Procedures Act. 27 Yuba County Water Agency (“YCWA” or “Intervenor”) intervened in 28 1 Friends of the 1 the case. 2 judgment, ECF Nos. 33, 38, 41, which were followed by opposition 3 and reply briefs, ECF Nos. 49, 54, 57. 4 below, the Court DENIES Plaintiff’s motion, GRANTS Federal 5 Defendants’ motion, and GRANTS Intervenor’s motion. ECF No. 16. Parties filed cross-motions for summary For the reasons set forth 6 7 II. BACKGROUND 8 A. 9 The Endangered Species Act of 1973 (ESA) “reflects a 10 conscious decision by Congress to give endangered species 11 priority over the primary missions of federal agencies.” 12 W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 495 (9th 13 Cir. 2011) (quoting Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 14 (1978) (“TVA v. Hill”) (internal quotations marks omitted)). 15 ESA tasks federal agencies with ensuring that any “agency action” 16 is not likely to jeopardize the continued existence of any listed 17 species. 18 destroy or adversely modify the critical habitat of any listed 19 species. 20 Endangered Species Act 16 U.S.C. § 1536(a)(2). The Further, agency action may not Id. Agency actions that “may affect” a listed species require 21 the acting agency to formally consult with the federal agency 22 responsible for protecting that species. 23 Grand Canyon Tr. v. U.S. Bureau of Reclamation, 691 F.3d 1008, 24 1011–12 (9th Cir. 2012), as amended (Sept. 17, 2012). 25 listed species is present in the area of a proposed action, the 26 acting agency—here, the Corps—must conduct a biological 27 assessment (“BA”), “for the purpose of identifying any endangered 28 species or threatened species which is likely to be affected by 2 50 C.F.R. § 402.14(a); If a 1 2 such action.” 16 U.S.C. § 1536(c). At the end of the formal consultation process, the Secretary 3 of the consulting agency—here, NMFS—must issue a Biological 4 Opinion (“BiOp”). 5 statement setting forth the Secretary’s opinion, and a summary of 6 the information on which the opinion is based, detailing how the 7 agency action affects the species or its critical habitat.” 8 If the consulting agency believes that the project will 9 jeopardize a listed species or adversely modify the species’ Id. § 1536(b)(3)(A). A BiOp is a “written 10 habitat, “the Secretary shall suggest those reasonable and 11 prudent alternatives which he believes would not violate 12 subsection (a)(2) and can be taken by the Federal agency or 13 applicant in implementing the agency action.” Id. 14 Id. The ESA also prohibits any federal agency from “taking” a 15 listed species. 16 U.S.C. § 1538(a)(1)(B). 16 meaning “to harass, harm, pursue, hunt, shoot, wound, kill, trap, 17 capture, or collect, or to attempt to engage in any such 18 conduct.” 19 to, rather than the purpose of, a federal action, it is referred 20 to as an incidental take. 21 § 17.3. 22 agency issues the acting agency an incidental take statement 23 along with the BiOp. 24 agency subsequently modifies the action “in a manner that causes 25 an effect to the listed species or critical habitat that was not 26 considered in the [BiOp],” or if the acting agency exceeds the 27 take authorized in the incidental take statement, the agencies 28 must reinitiate formal consultation. 16 U.S.C. § 1532(19). “Take” is defined as Where a taking is incidental 16 U.S.C. § 1536(b)(4); 50 C.F.R. An incidental take may be permitted if the consulting 50 C.F.R. § 402.14(i). 3 If the acting 50 C.F.R. § 402.16. 1 B. 2 The Administrative Procedure Act (APA) provides for judicial Administrative Procedure Act 3 review of federal agencies’ final actions. 5 U.S.C. § 702; see 4 also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882 (1990). 5 “Agency decisions under ESA are governed by the [APA], which 6 requires an agency action to be upheld unless it is found to be 7 ‘arbitrary, capricious, an abuse of discretion, or otherwise not 8 in accordance with law.’” 9 1248, 1256–57 (9th Cir. 2017) (quoting Pac. Coast Fed’n of Defs. of Wildlife v. Zinke, 856 F.3d 10 Fishermen’s Ass’ns, Inc. v. Nat’l Marine Fisheries Serv., 265 11 F.3d 1028, 1034 (9th Cir. 2001); 5 U.S.C. § 706(2)(A)). 12 may find that an agency’s action was arbitrary and capricious, 13 14 15 16 A court “only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” 17 Id. at 1257 (quoting Conservation Cong. v. U.S. Forest Serv., 720 18 F.3d 1048, 1054 (9th Cir. 2013)). 19 review, the court upholds the agency’s action unless the agency 20 failed to consider relevant factors or did not articulate “a 21 rational connection between the facts found and the choices 22 made.” 23 (9th Cir. 2016) (quoting Alaska Oil & Gas Ass’n v. Jewell, 815 24 F.3d 544, 554 (9th Cir. 2016)). 25 During this deferential Alaska Oil & Gas Ass’n v. Pritzker, 840 F.3d 671, 675–76 The same standard applies to both new agency policies and 26 changes to previous agency positions. 27 must provide a reasoned explanation for adoption of its new 28 policy—including an acknowledgment that it is changing its 4 Id. at 681. “An agency 1 position and if appropriate, any new factual findings that may 2 inform that change—but it need not demonstrate that the new 3 policy is better than its prior policy.” Id. at 682. 4 C. 5 Central Valley spring-run Chinook salmon (“spring Chinook”), 6 Central Valley steelhead (“steelhead”), and the Southern Distinct 7 Population Segment of North American green sturgeon (“green 8 sturgeon”) are anadromous fish. 9 into freshwater, anadromous fish migrate to the ocean as 10 11 The Three Fish Species Corps R. 532:42347–42458. Born juveniles and return to freshwater as adults to spawn and die. Habitat blockage by dams and the degradation and destruction 12 of habitat has decimated fish populations. Corps R. 532:42358. 13 Current populations are a fraction of their historical abundance. 14 Corps R. 532:42351, 42397, 42441. 15 listed the spring Chinook, steelhead, and green sturgeon 16 (collectively, “the Listed Species”) as threatened under the ESA. 17 64 Fed. Reg. 50,394 (Sept. 16, 1999) (spring Chinook); 71 Fed. 18 Reg. 834 (Jan. 5, 2006) (steelhead); 71 Fed. Reg. 17,757 (April 19 7, 2006) (green sturgeon). 20 the critical habitat for each of the Listed Species. 21 Reg. 52,488 (Sept. 2, 2005) (spring Chinook, steelhead); 74 Fed. 22 Reg. 52300 (Oct. 9, 2009) (green sturgeon). 23 status, the three species continue to swim towards extinction. 24 See Corps R. 532:42631 (“The CV spring-run Chinook salmon ESU is 25 at moderate risk of extinction . . . [and] has worsened since the 26 last status review.”), 42634 (“The CCV steelhead DPS is at high 27 risk of extinction . . . and the extinction risk is 28 increasing.”), 42636 (“The green sturgeon southern population DPS Due to these declines, NMFS The Yuba River makes up a portion of 5 70 Fed. Despite their listed 1 is at substantial risk of extinction”). 2 D. The Englebright and Daguerre Point Dams 3 The Yuba River is a Northern California river that flows 4 into the Sacramento and Feather Rivers. State of Cal. ex rel. 5 State Land Comm’n v. Yuba Goldfields, Inc., 752 F.2d 393, 394 6 (9th Cir. 1985). 7 region during the late nineteenth century. 8 technique in particular had “disastrous ramifications” for the 9 surrounding environment. Extensive gold mining efforts took place in the Id. Id. One mining Hydraulic mining, by which miners 10 spray high-pressure water along hillsides to dislodge the desired 11 material, resulted in large deposits of debris into the Yuba 12 River and subsequent flooding to the surrounding area. 13 response to this problem, Congress enacted the Caminetti Act of 14 1893, 33 U.S.C. § 661 et seq. 15 California Debris Commission, “a federal agency staffed by 16 members of the Army Corps of Engineers, which was empowered to 17 regulate and oversee hydraulic mining in the Sacramento and 18 Joaquin river systems within the State of California, 33 U.S.C. 19 § 663.” 20 hydraulic mining under conditions that would preserve and protect 21 the navigable waters; and (2) to plan works to control the debris 22 and restore the rivers as navigable waterways, 33 U.S.C. §§ 664, 23 665, 685.” 24 Id. Id. Id. In The Caminetti Act created the The Caminetti Act sought to “(1) to permit Id. The California Debris Commission constructed Daguerre Point 25 Dam in 1906, diverting the river around it in 1910. Corps R. 26 532:42464–65. 27 operated to retain mining debris and serves no flood control 28 purpose. At only 24 feet high, the dam was originally Corps R. 532:42322. Daguerre Point Dam serves as a 6 1 partial to complete barrier in fish passage along the Yuba River. 2 Corps R. 532:42465. 3 surmount the dam since fish ladders were constructed in the early 4 1920s. 5 so Daguerre Point Dam completely blocks their upstream migration. 6 Corps R. 532:42606. Id. Some salmon and steelhead have been able to Green sturgeon are unable to use the fish ladders, 7 The River and Harbors Act of 1935, Pub. L. 409, 74th 8 Congress, approved August 30, 1935, 49 Stat. 1028, authorized 9 construction of public works in the Sacramento River and its 10 tributaries. 11 Engineers recommended constructing a reservoir at Narrows in the 12 Yuba River to control debris. 13 construction of that project, named the Englebright Dam, was 14 completed in 1941. 15 Point Dam, the dam was not built for flood control. 16 Releases from the Englebright Dam are made through the Narrows I 17 and II hydroelectric power facilities. Id. at 1038. A letter from the U.S. Army Chief of Corps R. 163:12663. Corps R. 532:42530. The Similar to the Daguerre Id. Corps R. 532:42321. 18 The Fish and Wildlife Coordination Act, enacted in 1934, 19 required consultation with the Bureau of Fisheries to prevent 20 loss and damage to wildlife before constructing a water 21 impoundment like Englebright Dam. 22 is no evidence that Englebright Dam complied with the Fish and 23 Wildlife Coordination Act. 24 stands, the 260-foot-high dam lacks fish ladders and completely 25 blocks fish passage and access to historical spawning habitat. 26 Corps. R 532:42526. See 16 U.S.C. § 662(a). Corps R. 389:29666. There As it now 27 E. Procedural History 28 This case is one in a series of cases regarding the impact 7 1 of dams, hydropower facilities, and water diversions on Listed 2 Species within the Yuba River. 3 within this district. 4 No. 2:00-cv-01410-DFL-PAN (E.D. Cal. Aug. 17, 2001) (Levi, J.) 5 (seeking an order requiring NMFS to issue proposed and final 6 rules pursuant to § 4(d) of the ESA for spring run chinook); 7 S. Yuba River Citizens League et al v. Nat’l Marine Fisheries 8 Serv., et al., No. 2:06-cv-02845-LKK-JFM (E.D. Cal Aug. 26, 2014) 9 (Karlton, J.) (challenging the propriety of a NMFS BiOp in There are three prior cases See S. Yuba River v. Nat’l Marine, et al., 10 connection with the continued operation of two Corps dams on the 11 Yuba River); S. Yuba River Citizens League v. Nat’l Marine 12 Fisheries Serv., et al., No. 2:13-cv-00059-MCE-EFB (E.D. Cal. 13 Dec. 23, 2015) (England, J.) (requesting NMFS set aside 14 extensions to 2012 BiOp deadlines). 15 The first consultation between the Corps and NMFS regarding 16 Yuba River activities occurred around 2000, in response to a 17 lawsuit brought by the South Yuba River Citizens League (SYRCL). 18 Corps R. 356:23031. 19 consultation with NMFS in a BA regarding the impact of 20 Englebright and Daguerre Point Dams and water diversions on 21 spring Chinook and steelhead. 22 issued a BiOp finding that the dams’ operations were not likely 23 to jeopardize the continued existence of the spring Chinook and 24 steelhead or destroy or adversely modify designated critical 25 habitat. 26 proposed action . . . is the continuation of current Corps 27 operations of Englebright and Daguerre Point Dams,” and “[a]n 28 important component of the Corps operations is the issuance of That year, the Corps requested formal Corps R. 356:23066. Corps R. 171:12759. In 2002, NMFS According to the 2002 BiOp, “[t]he 8 1 permits, licenses and easements to non-federal entities for their 2 operations of water diversion facilities at or near the dams.” 3 Corps R. 356:23033. 4 The Corps’s 2007 BA similarly defined the agency action as 5 the “continuation of current Corps operations associated with 6 Englebright and Daguerre Point Dams on the Yuba River” with 7 respect to its impact on spring Chinook, steelhead, and green 8 sturgeon. 9 again determined that the agency action was not likely to Corps R. 178:13641–42. In the 2007 final BiOp, NMFS 10 jeopardize the List Species, but found a likelihood of incidental 11 take. 12 Corps R. 368:24749. In 2012, the Corps prepared a BA that defined the agency’s 13 action differently. 14 Consultation Handbook, the Corps determined that the future 15 effects of the dams’ presence should be included in the 16 environmental baseline. 17 finding based on the argument that the agency did not have the 18 authority to change the presence of these preexisting facilities. 19 Id. at 186:14185–86. 20 Corps’s proposed actions, including those the Corps believed were 21 nondiscretionary, were likely to jeopardize the listed species. 22 Corps R. 389:29663. 23 alternatives to avoid jeopardizing the Listed Species. 24 389:29664. 25 Relying on the 1998 FWS and NMFS ESA Corps R. 186:14185. The Corps made this NMFS concluded in its 2012 BiOp that the NMFS also provided reasonable and prudent Corps R. The Corps had “serious concerns” regarding the 2012 BiOp and 26 sought to reinitiate consultation based on “new information.” 27 Corps R. 544:43422. 28 that the dams’ continued existence was not an agency action In 2013, the Corps reasserted its argument 9 1 because it was non-discretionary. 2 also broke up what it previously considered one “agency action” 3 along the Yuba River into multiple smaller parts, separating 4 actions connected with the Englebright Dam, Daguerre Point Dam, 5 and licensing. 6 consultation on outgrants for the Narrows I and II and an 7 easement for the Brophy diversion to a later date. 8 81:4095–96. 9 consultation, while the 2013 Englebright BA sought only informal 10 11 Corps R. 80:4030. Corps R. 81:4074. The Corps The Corps postponed Corps R. The 2013 Daguerre Point BA sought formal consultation. Corps R. 81:4053. In May 2014, NMFS changed course from its prior opinion in 12 the 2012 BiOp. 13 Letter of Concurrence (“Letter of Concurrence”), the agency 14 agreed that the Corps’s proposed action at Englebright was not 15 likely to adversely affect the Listed Species. 16 581:48897. 17 BiOp”), NMFS concluded that the Corps’s proposed action at 18 Daguerre Point was not likely to jeopardize the Listed Species. 19 Corps R. 532:42637. 20 Corps R. 532, 581. In its 2014 Englebright Corps R. Similarly, in the 2014 Daguerre Point Dam BiOp (“2014 Plaintiff brought this suit against NMFS and the Corps, as 21 well as the Bureau of Land Management (“BLM”), in April 2016. 22 ECF No. 1. 23 in November 2016. 24 Plaintiff seeks declaratory and injunctive relief. 25 4, ¶ 11. The parties stipulated to dismiss BLM from the case Order, ECF No. 24. In its Amended Complaint, Am. Compl. at 26 Plaintiff alleges nine causes of action in its Amended 27 Complaint: one APA claim against the Corps for issuing the 2013 28 Englebright BA (Count I); four APA claims against NMFS for 10 1 concurring with the Englebright BA (Count II), issuing the 2014 2 BiOp (Count III), rescinding the 2012 BiOp (Count IV), and 3 failing to reinitiate consultation with the Corps (Count IX); and 4 four ESA claims against the Corps for inadequate consultation 5 with NMFS (Count V), jeopardizing the Listed Species (Count VI), 6 taking the Listed Species (Count VII), and failing to reinitiate 7 consultation with NMFS (Count VIII). 8 146. 9 Am. Compl. at 26–38, ¶¶ 96– Following the submission of cross-motions on summary 10 judgment, Plaintiff moved to strike portions of Federal 11 Defendants’ Statements of Facts. 12 Arguments on the summary judgment motions and the Motion to 13 Strike were heard at oral argument on November 21, 2017. 14 Order, ECF No. 61. Mot. Strike II, ECF No. 56. Minute 15 16 17 III. STANDARD OF REVIEW The parties have filed cross-motions for summary judgment. 18 Summary judgment is the appropriate mechanism for deciding, as a 19 matter of law, whether the administrative record supports the 20 agency action and whether that action is otherwise consistent 21 with the APA standard of review. 22 I.N.S., 753 F.2d 766, 769–70 (9th Cir. 1985). 23 See Occidental Eng’g Co. v. Apart from the APA, the Court also grants deference to an 24 agency’s interpretation of the statutes and regulations that 25 define the scope of its authority. 26 Network v. U.S. Dep’t of Commerce, No. 13-17123, 2017 WL 6598627, 27 at *5 (9th Cir. Dec. 27, 2017) (citing Chevron, U.S.A., Inc. v. 28 Nat. Res. Def. Council, 467 U.S. 837, 843 (1984)). 11 Turtle Island Restoration Chevron 1 deference only applies where the agency rendered decisions 2 through formal procedures. 3 Id. In the absence of those formal procedures, other types of 4 deference may still apply. Under Auer deference, the Court 5 “defer[s] to an agency’s interpretation of its own ambiguous 6 regulations, which controls unless ‘plainly erroneous or 7 inconsistent with the regulation,’ or where there are grounds to 8 believe that the interpretation ‘does not reflect the agency’s 9 fair and considered judgment of the matter in question.’” Id. 10 (quoting Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 11 (2012)). 12 interpretation of its own regulation that is inconsistent with 13 the statute under which the agency promulgated the regulations. 14 Marsh v. J. Alexander’s LLC, 869 F.3d 1108, 1117 (9th Cir. 2017). 15 Auer deference does not apply to an agency’s Where an agency’s construction of a statute or regulation 16 does not qualify for either Chevron or Auer deference, the Court 17 may still give some deference to the agency’s decision. 18 Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952–53 (9th 19 Cir. 2009) (citing Skidmore v. Swift & Co., 323 U.S. 134 (1944); 20 United States v. Mead Corp., 533 U.S. 218, 228 (2001)). 21 Skidmore deference, the Court grants the agency’s interpretation 22 “a measure of deference proportional to the thoroughness evident 23 in its consideration, the validity of its reasoning, its 24 consistency with earlier and later pronouncements, and all those 25 factors which give it power to persuade.” 26 1117 (quoting Indep. Training & Apprenticeship Program v. Cal. 27 Dep’t of Indus. Relations, 730 F.3d 1024, 1036 (9th Cir. 2013)). 28 12 Under Marsh, 869 F.3d at 1 IV. OPINION 2 A. Standing 3 As an initial matter, Federal Defendants have not disputed 4 that Plaintiff, an environmental organization, has standing in 5 this case. 6 The only party whose standing has been challenged is 7 Intervenor, by Plaintiff in its Reply Brief. FOR Reply, ECF No. 8 54, pp. 2–4. 9 advance the arguments made in Intervenor’s Motion for Summary Plaintiff challenged Intervenor’s standing to 10 Judgment. 11 arguments between Federal Defendants and Intervenor in an order 12 granting in part and denying in part Plaintiff’s Motion to Strike 13 Intervenor’s Memorandum of Points and Authorities. 14 Order, ECF No. 48. 15 Id. The Court addressed the issue of overlapping See Strike Earlier in this case, the Court granted Intervenor’s 16 unopposed Motion to Intervene as a matter of right. 17 Order, ECF No. 18. 18 Mot. to Intervene, ECF No. 16, p. 1. 19 Intervention waived any arguments against Intervenor’s standing. Plaintiff did not oppose that motion. See Accordingly, Plaintiff has 20 B. 21 Plaintiff filed a motion to strike the legal arguments 22 Federal Defendants inserted into their Statements of Undisputed 23 Facts. 24 record at the November 21, 2017 hearing, the Court granted 25 Plaintiff’s motion to strike with respect to the legal arguments 26 within Federal Defendants’ Statements of Facts. 27 28 Motion to Strike See Mot. to Strike II. For the reasons stated on the The Court treats Federal Defendants’ additional objections as factual disputes. Neither Plaintiff’s nor the Federal 13 1 Defendants’ statements at oral argument were of help to the 2 Court, as neither party disputes that the Court need not make 3 findings of fact. 4 C. Scope of Review 5 Plaintiff seeks to rely on evidence outside the 6 administrative record to support its claims. 7 49, p. 1. 8 limited to the administrative record for both APA and ESA claims. 9 Joint Reply, ECF No. 59, p. 1. 10 FOR Opp’n, ECF No. Federal Defendants counter that the scope of review is In the Ninth Circuit, claims brought under the ESA’s citizen 11 suit provision are not subject to the same scope of review 12 restrictions as claims brought under the APA. 13 F.3d at 497 (“Therefore, under Washington Toxics Coalition we may 14 consider evidence outside the administrative record for the 15 limited purposes of reviewing Plaintiffs’ ESA claim.”). 16 Defendants argue that Kraayenbrink was a “passing and 17 unprecedented abrogation of the APA,” which “flout[ed] decades of 18 Circuit and Supreme Court law.” 1 19 years since Kraayenbrink was published, the Ninth Circuit has not Kraayenbrink, 632 Joint Reply at 1. Federal In the seven 20 1 21 22 23 24 25 26 27 28 As in previous cases, Federal Defendants conflate the standard of review and scope of review for ESA claims. The “standard of review” is governed by the APA, see Karuk Tribe, 681 F.3d at 1017; however, scope of review has been interpreted differently. Federal courts have found “where a claim is brought under [the ESA], the district court “borrow[s] ... the standard [of review] from the APA,” but does “not similarly borrow[ ] the APA’s scope of review.” Ellis v. Housenger, No. C-13-1266 MMC, 2015 WL 3660079, at *4 (N.D. Cal. June 12, 2015) (quoting W. Watersheds Project v. FWS, 2013 WL 3270363, at *4 (D. Id. June 26, 2013)); see also Hoopa Valley Tribe v. Nat’l Marine Fisheries Serv., 230 F. Supp. 3d 1106, 1125 (N.D. Cal. 2017) (rejecting the argument that Karuk Tribe implicitly or silently overruled Kraayenbrink and admitting extra-record evidence on the plaintiffs’ ESA claim). Federal Defendants have not provided any authority contesting this reasoning. 14 1 abrogated its holding on this issue. 2 Accordingly, the Court has limited its review to the record 3 on Plaintiff’s APA claims and has considered extra-record 4 materials with regard to Plaintiff’s ESA citizen-suit claims in 5 addition to the over 160,000 pages of the administrative record 6 provided by Federal Defendants. 2 7 D. 8 Eight of Plaintiff’s nine claims relate to Federal 9 Section 7 Consultation Duties Defendants’ Section 7 consultation duties. In Claim I, Plaintiff 10 argues that the Corps’s 2013 Englebright Dam BA violated the APA 11 because it (1) asserted that maintaining the Englebright Dam is 12 not an action subject to consultation; (2) found that the 13 Englebright Dam’s maintenance was nondiscretionary; (3) denied 14 that adverse effects on the Listed Species and critical habitat 15 caused by Englebright Dam’s existence were effects of the action; 16 and (4) segregated out permits, licenses, and easements into 17 separate future actions. 18 Claim II, Plaintiff alleges that NMFS violated the APA by 19 concurring with the Corps’s definition of the agency action and 20 conclusions in the 2013 Englebright Dam BA. 21 ¶¶ 100–05. 22 2014 BiOp by (1) adopting the Corps’s definition of agency action 23 from the 2013 Daguerre Point Dam BA; (2) failing to analyze Am. Compl. at 26–27, ¶¶ 96–99. In Id. at 27–28, Claim III asserts that NMFS violated the APA in its 24 2 25 26 27 28 The parties violated the Court’s status order. Status Order, ECF No. 11. The Status Order unambiguously required the parties to file motions on the issue of record supplementation by January 24, 2017, with briefing on the issue to conclude by February 21, 2017. Id. at 2. No such motions were filed, despite the parties’ abject failure to come to an agreement on the issue. Nevertheless, the Court will not impose sanctions on the parties for their noncompliance with the Status Order. 15 1 effects of the action on Listed Species by considering dam 2 existence to be part of the environmental baseline; 3 (3) insufficiently explaining its change of position from the 4 2012 BiOp; and (4) improperly defining the action area. 5 28–30, ¶¶ 106–10. 6 violated the APA by replacing the 2012 BiOp with the 2014 BiOp. 7 Id. at 30, ¶¶ 111–13. 8 9 Id. at In Claim IV, Plaintiff alleges that NMFS Claim V argues that the Corps violated its procedural duties under ESA Section 7(a)(2) by failing to adequately consult with 10 NMFS about the Corps’s Yuba River activities. 11 ¶¶ 114–17. 12 violated its substantive duty under ESA Section 7(a)(2) to ensure 13 its actions will not jeopardize the Listed Species because 14 (1) its consultations were inadequate and (2) new information 15 surfaced after NMFS issued the 2014 BiOp and Letter of 16 Concurrence. 17 Corps violated the ESA because the issuance of new scientific and 18 technical information has triggered the Corps’s duty to 19 reinitiate consultation with NMFS. 20 Finally, Claim IX alleges NMFS violated the APA by failing to 21 reinitiate consultation with the Corps based on the same new 22 information in Claim VIII. 23 Id. at 30–31, In Claim VI, Plaintiff asserts that the Corps Id. at 31–32, ¶¶ 118–22. Claim VIII alleges the Id. at 34–36, ¶¶ 133–39. Id. at 36–38, ¶¶ 140–46. At the heart of Plaintiff’s Section 7 claims lies a dispute 24 over the scope and definition of the Corps’s agency action. 25 According to Plaintiff, Federal Defendants improperly defined, 26 narrowed, segmented, and analyzed the present action in a manner 27 that differed from their previous interpretations. 28 Compl. at 26–29, ¶¶ 97, 107. See Am. Federal Defendants counter that the 16 1 more recent interpretation is consistent with prior documents, 2 and also that a change in analysis would be permissible so long 3 as it is accompanied by an explanation. 4 39, p. 23. 5 Fed. Def. MSJ, ECF No. To weigh the parties’ arguments, the Court considers 6 Plaintiff’s numerous challenges presented individually. First, 7 the Court resolves whether the Corps’s 2013 Englebright BA may be 8 subject to judicial review. 9 actions fall within the environmental baseline, separate from the Second, the Court examines what 10 present agency action. 11 Corps’s activities fit the ESA’s broad definition of agency 12 action. 13 Corps’s activities are (i) affirmative and (ii) discretionary 14 actions that are (iii) guaranteed to occur and (iv) include 15 interrelated and interdependent activities. 16 considers whether Federal Defendants properly determined the 17 scope of the action area in the 2013 and 2014 documents. 18 the Court reviews the sufficiency of the consultation between the 19 Federal Defendants, including whether (i) NMFS has a duty to 20 reidentify the agency action; (ii) the agency action at 21 Englebright required formal consultation; and (iii) the Corps 22 violated its duty to ensure against jeopardy. 23 examines whether any changes in position by Federal Defendants 24 were adequately explained. 25 Federal Defendants had a duty to reinitiate consultation. 26 /// 27 /// 28 /// Third, the Court determines whether the Within this inquiry, the Court explores whether the Fourth, the Court Fifth, Sixth, the Court Seventh, the Court evaluates whether 17 1 1. The Court May Review the Englebright Biological Assessment 2 3 Section 704 of the APA provides that “final agency action 4 for which there is no other adequate remedy in a court” is 5 subject to judicial review. 6 generally do not qualify as “final agency actions,” a district 7 court “may review a BA where a final agency action, like a 8 [letter of concurrence], expressly relies on it to conclude 9 further action is not necessary.” 5 U.S.C. § 704. Although BAs Oregon Wild v. U.S. Forest 10 Serv., 193 F. Supp. 3d 1156, 1164 (D. Or. 2016) (summarizing that 11 an agency action is “final” when it “mark[s] the consummation of 12 the agency’s decisionmaking process” and determines “rights or 13 obligations”). 14 Here, NMFS’s Letter of Concurrence expressly relied upon the 15 findings of the Corps’s 2013 Englebright BA to find that the 16 action was not likely to adversely impact the Listed Species. 17 Corps R. 581:48881–99. 18 because of reliance on the BA’s determinations and information. 19 While the Letter of Concurrence constitutes the final agency 20 action, the Court is unable to meaningfully analyze it without 21 referencing the BA upon which it was based. 22 considers the Corps’s 2013 Englebright BA to be a final agency 23 action, reviewable under the APA. 24 2. No formal consultation or BiOp took place So the Court Federal Defendants Properly Delineated the Agency Action from the Environmental Baseline 25 26 The “agency action” is defined as “all activities or 27 programs of any kind authorized, funded, or carried out, in whole 28 or in part, by Federal agencies in the United States or upon the 18 1 high seas.” 2 is the “environmental baseline,” to which effects of the agency 3 action are added. 4 baseline includes “the past and present impacts of all Federal, 5 State or private actions and other human activities in the action 6 area” and “the anticipated impacts of all proposed Federal 7 projects in the action area that have already undergone formal or 8 early section 7 consultation.” 9 already jeopardize a species, an agency may not take action that 50 C.F.R. § 402.02. Distinct from the agency action 50 C.F.R. § 402.02. Id. The environmental “[W]here baseline conditions 10 deepens the jeopardy by causing additional harm.” 11 Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d 917, 930 (9th 12 Cir. 2008). Nat’l Wildlife 13 In evaluating the environmental baseline in National 14 Wildlife Federation, the Ninth Circuit found that current 15 existence of dams constituted an “existing human activity.” 16 F.3d at 930–31. 17 running river water through the dams’ turbines—constituted an 18 agency action for which the federal defendants had discretion 19 under the ESA and Northwest Power Act, 16 U.S.C. § 839. 20 931. 21 present agency action. 22 California Debris Commission “authorized, funded, or carried out” 23 construction of Englebright and Daguerre Point Dams, such that 24 the past and present impacts flowing from the dams’ existences 25 fall within the definition of “environmental baseline.” 26 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.02. 27 action and other interrelated and interdependent activities are 28 to be added to this environmental baseline when considering 524 Operation of those dams—generating power by Id. at There, like here, dam construction was not part of the Decades before the ESA’s enactment, the 19 16 Effects of the agency 1 whether the action will jeopardize the Listed Species. 2 The Court finds that Federal Defendants provided a 3 satisfactory and thorough explanation for their actions and 4 therefore did not act arbitrarily or capriciously by properly 5 including effects of the dams’ existences in the environmental 6 baseline. 7 3. Federal Defendants’ Identification of the Agency Action Was Not Arbitrary or Capricious 8 9 a. 10 A Present and Affirmative Action The Court construes the term “agency action” broadly. Karuk 11 Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1021 (9th Cir. 12 2012) (listing cases). 13 whether an activity constitutes an agency action under the ESA. 14 Ctr. for Biological Diversity v. U.S. Envtl. Prot. Agency, 847 15 F.3d 1075, 1090 (9th Cir. 2017) (“CBD v. U.S. EPA”). 16 Court looks to “whether a federal agency affirmatively 17 authorized, funded, or carried out the underlying activity.” 18 Karuk Tribe, 681 F.3d at 1021. 19 “whether the agency had some discretion to influence or change 20 the activity for the benefit of a protected species.” 21 There is a two-step inquiry to determine First, the Second, the Court determines Id. “An agency must consult under Section 7 only when it makes 22 an ‘affirmative’ act or authorization.” Id. One such example of 23 an affirmative agency action was the construction and operation 24 of a federal dam. 25 In TVA v. Hill, the Supreme Court found that the proposed 26 operation of the Tellico Dam, which had never opened, was an 27 affirmative action that would eradicate an endangered species. 28 Id. Id. (citing TVA v. Hill, 437 U.S. at 173–74). Similarly, the Ninth Circuit has held that hydropower 20 1 operations at over a dozen federal dams on the Columbia River 2 constituted an agency action. 3 923. 4 registration, Wash. Toxics Coal. v. Envtl. Prot. Agency, 413 F.3d 5 1024, 1033 (9th Cir. 2005), and reregistration, CBD v. U.S. EPA, 6 847 F.3d at 1091; approval of oil spill response plans, Alaska 7 Wilderness League v. Jewell, 788 F.3d 1212 (9th Cir. 2015); 8 approval of Notices of Intent to conduct mining activity, Karuk 9 Tribe, 681 F.3d at 1021; and renewal of water supply contracts, Nat’l Wildlife Fed’n, 524 F.3d at Other affirmative actions include pesticide product 10 Nat. Res. Def. Council v. Jewell, 749 F.3d 776, 780 (9th Cir. 11 2014) (“NRDC v. Jewell”). 12 Conversely, the Ninth Circuit has found that a failure to 13 act does not require consultation under Section 7(a)(2). 14 Watersheds Project v. Matejko, 468 F.3d 1099, 1107–08 (9th Cir. 15 2006) (“Of particular significance is the affirmative nature of 16 these words—‘authorized, funded, carried’—and the absence of a 17 ‘failure to act’ from this list.”). 18 concluded that a private party’s ongoing operation of a 19 hydropower project, pursuant to an earlier approved permit, was 20 not an affirmative act by the federal agency. 21 Prot. All. v. F.E.R.C., 472 F.3d 593, 598 (9th Cir. 2006). 22 Likewise, the Ninth Circuit found that an agency’s failure to 23 regulate private parties’ water diversions pursuant to those 24 parties' pre-existing rights-of-way was not an agency action. 25 Matejko, 468 F.3d at 1107–08. 26 W. The Ninth Circuit also Cal. Sportfishing Plaintiff asserts that the Corps’s affirmative actions 27 consisted of (1) the dams’ operations and maintenance and (2) 28 operation of ancillary facilities near the dams. 21 Here, the 1 present operations described by the Corps for Englebright Dam 2 include visual security and safety inspections, maintenance of 3 recreational facilities, continued administration of maintenance 4 service contracts, and continued administration of outgrants. 5 Corps R. 581:48882–83. 6 outgrants associated with the Englebright Dam hydropower 7 facilities were future actions for which the Federal Energy 8 Regulatory Commission would consult in 2016 and 2023. 9 581:48882. The Corps wrote that operation of Corps R. At Daguerre Point Dam, the Corps described its 10 present operations as operating and maintaining the fish passage 11 facilities, maintaining a staff gage, administering licenses for 12 observing fish and installing flashboards, and conservation 13 measures. Corps R. 532:42332–33. 14 The activities listed by the Corps as actions in the 15 Englebright and Daguerre Point Dams BAs constitute activities 16 affirmatively carried out by a federal agency. 17 § 402.02. 18 actions the Corps has “affirmatively authorized, funded, or 19 carried out” without consulting with NMFS. 20 847 F.3d at 1090. 21 Corps has discretion over only the activities it identified as 22 agency actions in its BAs. 23 24 50 C.F.R. Plaintiff has not identified any other specific b. See CBD v. U.S. EPA, Thus, the Court has evaluated whether the A Discretionary Action The Supreme Court has noted that an overly broad reading of 25 ESA Section 7(a)(2), 16 U.S.C. § 1536(a)(2), would “cover[], in 26 effect, almost anything that an agency might do” and “partially 27 override every federal statute mandating agency action.” 28 Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 664 22 Nat’l 1 (2007). 2 limiting the consultation requirement to discretionary agency 3 actions. 4 this part apply to all actions in which there is discretionary 5 Federal involvement or control.”). 6 consultation “so long as the federal agency has ‘some discretion’ 7 to take action for the benefit of a protected species.” 8 Jewell, 749 F.3d at 780 (quoting Karuk Tribe, 681 F.3d at 1024). 9 This discretion arises when “an agency, acting in furtherance of Accordingly, NMFS and FWS promulgated regulations 50 C.F.R. § 402.03 (“Section 7 and the requirements of These regulations require NRDC v. 10 a broad Congressional mandate, chooses a course of action which 11 is not specifically mandated by Congress and which is not 12 specifically necessitated by the broad mandate.” 13 Fed’n, 524 F.3d at 929. 14 Nat’l Wildlife Section 7 does not require consultation for actions “that an 15 agency is required by statute to undertake.” 16 F.3d at 780 (quoting Home Builders, 551 U.S. at 669). 17 of discretion exists “only if another legal obligation makes it 18 impossible for the agency to exercise discretion for the 19 protected species’ benefit.” 20 escape its obligation to comply with the ESA merely because it is 21 bound to comply with another statute that has consistent, 22 complementary objectives.’ ” Karuk Tribe, 681 F.3d at 1024 23 (quoting Wash. Toxics, 413 F.3d at 1032). 24 Id. at 784. NRDC v. Jewell, 749 This lack “An agency ‘cannot The Ninth Circuit has considered the discretionary nature of 25 actions several times since the Supreme Court’s Home Builders 26 decision. 27 retained “some discretion” to act in a manner that would benefit 28 the delta smelt during renewal of water rights contracts. In NRDC v. Jewell, the en banc panel found the agency 23 749 1 F.3d at 785. 2 requirement to prepare and submit an annual operating plan to 3 Congress each year was a “specific non-discretionary act,” not 4 subject to consultation. 5 Conversely, in Grand Canyon Trust, a statutory 691 F.3d at 1018. Here, where there are multiple dams that were authorized by 6 separate acts and built at different times, several sources of 7 legislative authority must be considered. 8 authorities that govern their discretion over the present 9 actions. The Corps cited nine Corps R. 81:4626–4639, 532:42326–27. Those authorities 10 are (1) The California Debris Act; (2) The Rivers and Harbors Act 11 of 1935; (3) Flood Control Act of 1970; (4) National Dam 12 Inspection Act of 1972; (5) Water Resources Development Act 1986; 13 (6) Water Resources Development Act 1996; (7) National Dam Safety 14 Program Act of 1996; (8) Public Law 109-460; and (9) Engineer 15 Regulation 1105-2-100. 16 Id. The California Debris Act, 33 U.S.C. § 661, et seq., created 17 a commission to restore navigability of rivers impacted by 18 hydraulic mining debris. 19 ameliorating the impacts of mining was to construct debris- 20 restraining dams. 21 Harbors Act authorized and funded “construction, completion, 22 repair, and preservation” of structures to retain mining debris, 23 including the Daguerre Point Dam. 24 One such authorized means of 33 U.S.C. § 685. Similarly, the Rivers and Corps R. 81:4627–29. The Flood Control Act of 1970, Section 216, authorizes the 25 Corps to review projects and report “to Congress with 26 recommendations on the advisability of modifying the structures 27 or their operation, and for improving the quality of the 28 environment in the overall public interest.” 24 33 U.S.C. § 549a. 1 The Water Resources Development Act of 1986 and 1996 further 2 authorize the Corps to perform ecosystem restoration, subject to 3 certain limitations. 4 § 2330(a)(1). 33 U.S.C. § 2283(b); 33 U.S.C. 5 In the realm of dam safety, the National Dam Inspection Act, 6 Pub. L. 92–367 (Aug. 8, 1972) authorizes the Corps to carry out a 7 national program of inspection of non-Federal dams for the 8 purpose of protecting human life and property. 9 Safety Program Act of 1996, Pub. L. 104-303 (Oct. 12, 1996), The National Dam 10 amended in 2006, Pub. L. 109–460 (Dec. 22, 2006), goes further to 11 require Secretary of the Army to undertake a national dam 12 inspection program. 13 Regulations require authorization by Congress when project 14 purposes are added or deleted. 33 U.S.C. § 467d. The Engineering Corps R. 81:4635. 15 Plaintiff has identified several statutes that it believes 16 grant the Corps broad discretion to determine whether or how to 17 maintain the dams. 18 statutes describe the Corps’s general duty to adopt plans that 19 improve river navigability, 33 U.S.C. § 664; ability to construct 20 sediment-impounding dams “when appropriations are made therefor 21 by law,” 33 U.S.C. § 685; responsibility to include environmental 22 protection as one of its primary missions in operating and 23 maintaining water resources projects, 33 U.S.C. § 2316; 24 authorization to carry out a program to improve environmental 25 quality when feasible and consistent with the project’s 26 authorized purpose, 33 U.S.C. § 2309a(a–b); capability to carry 27 out a project that improves the environment’s quality and is cost 28 effective, including dam removal, 33 U.S.C. § 2330(a)(1–2); and FOR MSJ, ECF No. 33, pp. 11–12. 25 Those 1 duty to mitigate fish and wildlife losses for projects 2 constructed after November 17, 1986, 33 U.S.C. § 2283. 3 The Court has carefully reviewed these sources and finds 4 that the Corps does not have the discretion to discontinue dam 5 inventory and safety inspections. 6 these actions as non-discretionary, which does not require 7 Section 7 consultation. 8 U.S. at 666 (2007). 9 remaining activities were discretionary. The Corps properly classified See 50 CFR § 402.03; Home Builders, 551 The Corps also correctly identified that Corps R. 550:43451, 10 81:4560. 11 discretion was not arbitrary or capricious. 12 In sum, Federal Defendants’ assessment of the Corps’s c. An Action Guaranteed to Occur 13 In Claim III, Plaintiff further argues that it was improper 14 for NMFS to consider voluntary conservation measures, subject to 15 funding availability, as part of the agency action in the 2014 16 BiOp. 17 address this issue in their briefing. 18 Am. Compl. at 28–29, ¶ 107. Federal Defendants fail to The 2013 Daguerre Point Dam BA includes both “protective 19 conservation measures,” which the Corps has committed to 20 incorporate into the Proposed Action, Corps R. 81:4518, and 21 “voluntary conservation measures,” which are “subject to the 22 availability of funding.” Corps R. 81:4522. 23 NMFS may rely on mitigation measures to support a finding 24 that an agency action poses no jeopardy to the Listed Species. 25 See Rock Creek All. v. U.S. Fish & Wildlife Serv., 663 F.3d 439, 26 444 (9th Cir. 2011). 27 mitigation, however, may not be included as part of a proposed 28 action unless there are “specific and binding plans” for “[A] sincere general commitment” to future 26 1 implementation. 2 the present case, the Corps’s voluntary conservation measures 3 lack solid guarantees that they will actually occur because they 4 are contingent on uncertain funding availability. 5 these potential conservation measures should not have factored 6 into the BA and BiOp unless the Corps showed “clear, definite 7 commitment of resources” for them. 8 this commitment is lacking. Nat’l Wildlife Fed’n, 524 F.3d at 935–36. Id. In Benefits of Judging from the record, 9 Where the allegedly defective mitigation measure was not the 10 primary reason for the agency’s no-jeopardy finding, other courts 11 have declined to invalidate the BiOp. 12 Wildlands Ctr. v. Nat’l Oceanic & Atmospheric Admin., 99 F. Supp. 13 3d 1033, 1055–56 (N.D. Cal. 2015) (listing cases). 14 See Klamath-Siskiyou Similar to Klamath-Siskiyou Wildlands Center, the facts here 15 are distinguishable from National Wildlife Federation. 16 at 935–36. 17 significantly on [the] future [mitigation measures]” without 18 “specific and binding plans.” 19 did not rely on the voluntary mitigation measures as the primary 20 reason for its finding that the agency actions at Daguerre Point 21 Dam were not likely to result in jeopardy to the Listed Species. 22 Corps R. 532:42640. 23 Court does not find that voluntary mitigation measures 24 constituted a critical or significant factor in NMFS’s no- 25 jeopardy determination. 26 no-jeopardy conclusions made in NMFS’s 2014 BiOp biological 27 opinion to be arbitrary and capricious. 28 524 F.3d There, the Ninth Circuit found NMFS “relied d. Id. (emphasis added). Here, NMFS Reviewing the entirety of the 2014 BiOp, the Accordingly, the Court does not find the Interrelated and Interdependent Activities 27 1 Several of Plaintiff’s claims take issue with the Corps’s 2 exclusion of its issuance and administration of permits, 3 licenses, contracts, and easements from the proposed actions in 4 the 2013 BAs. 5 argues that Federal Defendants acted arbitrarily and capriciously 6 by dividing up activities at Englebright, Daguerre, and the 7 Licensed Facilities into separate unrelated agency actions with 8 smaller action areas. 9 Am. Compl., pp. 26–28, ¶¶ 97, 107. Plaintiff FOR MSJ at 15. The Court disagrees. While ESA regulations make clear that the Corps’s issuance 10 of permits, licenses, contracts, and easements all qualify as 11 “actions” under the ESA. 12 “the granting of licenses, contracts, leases, easements, rights- 13 of-way, permits, or grants-in-aid” are examples of actions), the 14 question is whether it was improper for the Corps to classify 15 these activities as individual actions, rather than continuing 16 the Corps’s previous practice of bundling these activities 17 together into a single action. 18 See 50 C.F.R. § 402.02 (providing that The ESA requires the consulting agency to consider the 19 “entire agency action.” Conner v. Burford, 848 F.2d 1441, 1453 20 (9th Cir. 1988). 21 impact of “interrelated and interdependent” actions, defined as 22 actions “that are part of a larger action and depend on the 23 larger action for their justification” (interrelated) or actions 24 “that have no independent utility apart from the action under 25 consideration” (interdependent). 26 for interrelated or interdependent effects is ‘but for’ 27 causation, i.e., but for the proposed action, would the other 28 action occur.” The effects of the agency action include the 50 C.F.R. § 402.02. “The test Nat. Res. Def. Council v. Rodgers, 381 F. Supp. 28 1 2d 1212, 1234–35 (E.D. Cal. 2005). 2 Segmented consultations of a single agency action are 3 counter to the ESA’s requirements because an “agency action could 4 ultimately be divided into multiple small actions, none of which, 5 in and of themselves would cause jeopardy.” 6 Supp. 2d at 1237 n.43 (quoting Am. Rivers v. U.S. Army Corps of 7 Eng’r, 271 F. Supp. 2d 230, 255 (D.D.C. 2003)). 8 9 Rodgers, 381 F. Plaintiff argues that the licenses and contracts are interrelated because (1) the two dams were built as part of “an 10 integrated project” to control mining debris within the Yuba 11 River; (2) the Brophy Diversion depends on the existence of the 12 Daguerre dam for its head; (3) the Cordua Diversion is physically 13 attached to Daguerre; and (4) the Narrows 1 and 2 powerhouses 14 draw water from the Englebright Reservoir and their operations 15 are coordinated with the dam. 16 that these activities, however, do not form part of a larger 17 cohesive action. 18 interrelated or interdependent actions because they do not depend 19 on the presently proposed agency actions—outgrants, recreational 20 activities, and fish ladders—for their justification and have 21 independent utility apart from the proposed actions. 22 C.F.R. § 402.02. 23 activities, and fish ladder, activity at the Powerhouses and the 24 Cordua Diversion could still occur. 3 25 Diversity v. U.S. Fish & Wildlife Serv., 807 F.3d 1031, 1047 (9th FOR MSJ at 13–14. The Court finds They do not meet the definitions of See 50 “But for” the outgrants, recreational See Ctr. for Biological 26 3 27 28 The Corps’s issuance of permits, licenses, contracts, and easements similarly do not qualify as cumulative effects under the ESA, as they would be future Federal, not State or private activities. See 50 C.F.R. § 402.02. 29 1 2 Cir. 2015). When renewed, these licenses and contracts will be their own 3 agency actions, subject to consultation requirements where the 4 agency yields discretion. 5 activities from the 2013 Englebright BA and 2014 BiOp was not 6 arbitrary or capricious. 7 4. Federal Defendants’ exclusion of Federal Defendants’ Assessment of the Action Area Was Not Arbitrary or Capricious 8 9 In Claim III, Plaintiff asserts that NMFS violated the APA 10 by improperly identifying the “action area” within the 2014 BiOp. 11 Am. Compl. ¶ 109. 12 area in the BiOp failed to consider impacts from Englebright Dam 13 and Narrows 2 in its jeopardy and adverse modification analysis. 14 FOR MSJ at 15 n.10. Plaintiff contends that the smaller action 15 “Action area” is defined as “all areas to be affected 16 directly or indirectly by the Federal action and not merely the 17 immediate area involved in the action.” 18 Generally, “determination of the scope of an analysis area 19 requires application of scientific methodology and, as such, is 20 within the agency’s discretion.” 21 Dombeck, 304 F.3d 886, 902 (9th Cir. 2002). 22 judicial scrutiny, the agency must explain the “scientific 23 methodology, relevant facts, or rational connections linking the 24 project’s potential impacts” to the action area boundaries. 25 50 C.F.R. § 402.02. Native Ecosystems Council v. To withstand Id. The ESA Consultation Handbook provides that the description 26 of the action area is a biological determination for which the 27 consulting agency—here, NMFS—is responsible. 28 Although agreement between the Corps and NMFS is “desirable,” 30 Corps R. 472:37064. 1 id., NMFS’s interpretation takes precedence where NMFS and the 2 Corps disagree. 3 The 2014 BiOp defines the action area as including “the 4 lower Yuba River starting at a point approximately 135 feet 5 upstream of the downstream of the Narrows II powerhouse and 6 approximately 415 feet downstream of Englebright Dam, downstream 7 to the confluence of the Yuba and Feather rivers.” 8 532:42345. 9 Species may swim further upstream than the boundary of the action 10 area, up until the point when they are blocked by the Englebright 11 Dam. 12 action area boundary, would not be affected by the proposed 13 action. 14 Id. Corps R. The 2014 BiOp goes on to acknowledge that the Listed The BiOp concludes that this area, upstream of the Id. Although NMFS’s action area determination could have been 15 more detailed, this “biological determination” qualifies as a 16 scientific judgment for which the Court must be “at its most 17 deferential.” 18 Bd., 668 F.3d 1067, 1075 (9th Cir. 2011) (quoting Baltimore Gas & 19 Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 103 20 (1983)). 21 relevant facts and made a rational connection to the proposed 22 action’s potential impact. 23 902. 24 capriciously in defining the action area in the 2014 BiOp. 25 /// 26 /// 27 /// 28 /// N. Plains Res. Council, Inc. v. Surface Transp. The 2014 BiOp’s action area boundaries discussed See Native Ecosystems, 304 F.3d at The Court does not find that NMFS acted arbitrarily and 31 1 5. 2 The Federal Defendants’ Consultation Was Sufficient 3 a. 4 There Was No Duty To Reidentify the Agency Action 5 Plaintiff argues that NMFS abdicated its responsibility to 6 “correctly identify the action that is subject to consultation.” 7 Am. Compl. at 28–29. Quoting from the ESA Consultation Handbook, 8 Plaintiff argues that NMFS need not agree with the Corps’s 9 identification of the agency action or action area and must 10 instead make its own independent determination. FOR Opp’n at 4. 11 The statute and accompanying regulations are not clear about 12 the discretion that the consulting agency has to reidentify or 13 redefine the agency’s proposed action. See 50 C.F.R. § 402.11(f) 14 (specifying that a preliminary BiOp can be confirmed as final 15 after the consulting agency “reviews the proposed action” and 16 finds no significant changes); 50 C.F.R. § 402.14(a) (requiring 17 both the action agency and consulting agency to initiate 18 consultation where any agency action that may affect listed 19 species or critical habitat is identified). 20 The ESA Consultation Handbook, to which the Court affords 21 Skidmore deference, San Luis & Delta-Mendota Water Auth. v. 22 Jewell, 747 F.3d 581, 634 (9th Cir. 2014), instructs the acting 23 agency to “[p]rovide descriptions of the proposed action and the 24 action area (area including all direct and indirect effects).” 25 Corps R. 472:37064. Where there is no complete or formal 26 description of the proposed action, the consulting agency 27 prepares a draft comprehensive project description, which is sent 28 32 1 to the action agency for review to eliminate inaccuracies. 2 The Handbook goes on to provide that where the action agency and 3 consulting agency disagree on the action area, the consulting 4 agency’s determination prevails on that biological determination. 5 Id. 6 action, where the language implies that the action agency has the 7 final say. 8 9 Id. There was no similar distinction made for the proposed Based on the Handbook’s language and the Court’s deference to it, the Court finds that NMFS did not act arbitrarily or 10 capriciously in accepting the Corps’s identified agency action. 11 See Defs. of Wildlife v. U.S. Fish, No. 16-CV-01993-LHK, 2016 WL 12 4382604, at *18 (N.D. Cal. Aug. 17, 2016) (rejecting an argument 13 that FWS acted arbitrarily and capriciously by relying on the 14 Corps’s description of its proposed project). 15 b. The Agency Action at Englebright Is Not Likely to Adversely Affect the Listed Species 16 17 In several claims against Federal Defendants, Plaintiff 18 alleges that the agencies have improperly determined that the 19 proposed action at Englebright is not likely to adversely affect 20 the Listed Species and their critical habitat, and in doing so, 21 failed to engage in required formal consultation. 22 28, 31, ¶¶ 103, 116. 23 Am. Compl. at “If an agency determines that action it proposes to take may 24 adversely affect a listed species, it must engage in formal 25 consultation.” 26 Formal consultation is not required if preparation of a BA or 27 informal consultation determines that the proposed action is not 28 likely to adversely affect any listed species or critical Bennett v. Spear, 520 U.S. 154, 158 (1997). 33 1 habitat. 2 on adverse effects will be upheld unless it “entirely fail[s] to 3 consider an important aspect of the problem,” relied on improper 4 factors, or offers an implausible explanation. 5 Conservancy v. Salazar, 628 F.3d 513, 529–30 (9th Cir. 2010) 6 (quoting The Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 7 2008)). 8 9 50 C.F.R. § 402.14(b)(1). The agency’s determination See Wild Fish As analyzed above, the Court has found that Federal Defendants’ identification of the proposed actions and the 10 Corps’s discretion is not arbitrary and capricious. 11 the 2013 Englebright Dam BA and Letter of Concurrence illustrates 12 that Federal Defendants thoroughly reviewed the proposed actions 13 during informal consultation and provided plausible explanations 14 for the finding that these actions were not likely to adversely 15 affect the Listed Species and their critical habitat. 16 R. 550:43461–69, 581:48884–86. 17 necessary for the agencies to engage in formal consultation for 18 this proposed action. 19 Defendants’ finding that the proposed action at Englebright Dam 20 was not likely to adversely affect the Listed Species and their 21 critical habitat was not arbitrary and capricious. 22 c. Review of See Corps Based on this finding, it was not See 50 C.F.R. § 402.14(b)(1). Federal The Corps Did Not Violate Its Duty to Ensure Against Jeopardy 23 24 Plaintiff’s Claim VI asserts that the Corps violated its 25 duty to ensure against jeopardy, in violation of Section 7(a)(2). 26 Am. Compl. at 31–32 ¶¶ 118–22. 27 alleged insufficiency of the Letter of Concurrence and 2014 BiOp, 28 as well as “new information” about and a modification of the Plaintiff bases this claim on the 34 1 actions. Id. 2 “Section 7 of the ESA imposes a substantive duty on the 3 [agency] to ensure that its actions are not likely to jeopardize 4 the continued existence of the listed fish or result in 5 destruction or adverse modification of critical habitat.” 6 for Biological Diversity v. U.S. Bureau of Land Mgmt., 698 F.3d 7 1101, 1127 (9th Cir. 2012) (“CBD v. U.S. BLM”) (citing 16 U.S.C. 8 § 1536(a)(2)). 9 the Court examines whether that reliance was arbitrary and Ctr. When reviewing an agency’s reliance on a BiOp, 10 capricious. 11 Admin., 175 F.3d 1156, 1162 (9th Cir. 1999). 12 reliance on “admittedly weak” information is not arbitrary or 13 capricious unless there is information the agency did not take 14 into account that undercuts its conclusions. 15 Tribe of Indians v. U.S. Dep’t of Navy, 898 F.2d 1410, 1415 (9th 16 Cir. 1990). 17 Aluminum Co. of Am. v. Adm’r, Bonneville Power An agency’s Pyramid Lake Paiute Here, the Court has determined that the 2014 BiOp upon which 18 the Corps relied was not flawed, but rather evaluated the agency 19 action and scope of discretion in far greater detail than any of 20 the prior documents. 21 reaching different conclusions and recommendations than were made 22 in the 2012 BiOp. 23 that the baseline conditions jeopardize the Listed Species, 24 Plaintiff has not provided information that indicates the present 25 proposed actions increase that risk by causing additional harm. 26 See Nat’l Wildlife Fed’n, 524 F.3d at 930 (“Agency action can 27 only ‘jeopardize’ a species’ existence if that agency action 28 causes some deterioration in the species’ pre-action This enhanced scrutiny resulted in NMFS While the scientific information makes clear 35 1 condition.”). 2 3 The Court finds that the Corps did not violate its substantive duty under Section 7(a)(2). 4 6. 5 The Explanation for Position Changes Was Adequate In Claim III, Plaintiff alleges that NMFS insufficiently 6 explained the changes in its reasoning between the 2012 BiOp and 7 2014 BiOp. 8 9 Am. Compl. 29, ¶ 108. As the Ninth Circuit recently noted in Defenders of Wildlife, “[a]gencies are entitled to change their minds.” 856 10 F.3d at 1262 (quoting Butte Envtl. Council v. U.S. Army Corps of 11 Eng’r, 620 F.3d 936, 946 (9th Cir. 2010)). 12 accompanied by “a satisfactory explanation for its action 13 including a rational connection between the facts found and the 14 choice made.” 15 (9th Cir. 2010) (emphases and internal quotation marks omitted). 16 Where an agency dramatically changes its approach without a 17 rational explanation, its new interpretation is entitled to less 18 deference. 19 That change must be Humane Soc’y of U.S. v. Locke, 626 F.3d 1040, 1051 Nat’l Wildlife Fed’n, 524 F.3d at 933. The Corps has thoroughly explained the differences in its 20 reasoning from prior BAs. See Corps R. 81:4071–101, 550:43448– 21 51. 22 proposed action to more clearly identify which activities were 23 subject to ‘discretionary Federal involvement or control’ ” and 24 which “were non-discretionary and would therefore not be included 25 in the Corps’ request for consultation.” 26 The Corps then sought to reinitiate consultation with NMFS to 27 provide more accurate information on agency discretion, the 28 proposed action’s scope, and recent scientific and technical Following the 2012 BiOp, the Corps “deconstructed its 36 Corps R. 581:48888–89. 1 findings. 2 the dams were submitted because the Corps found “each dam has a 3 separate authorization and appropriation, and because the actions 4 at Englebright and Daguerre are wholly separate and are not 5 dependent upon each other to operate.” 6 Corps R. 581:48889–90, 532:42324–25. Separate BAs on Corps R. 581:48890. NMFS’s description of its change in reasoning is less 7 detailed. 8 reasoning and reconsiders its prior BiOp based on this change: 9 In the 2012 BiOp, NMFS identified several additional actions as interrelated and interdependent actions associated with the project description in the Corps 2012 BA (Corps 2012a). Due to modifications in the proposed action, and new information regarding Corps discretion and authority, those actions are no longer identified in this BiOp as interrelated and interdependent actions. 10 11 12 For the most part, NMFS appears to adopt the Corps’s 13 14 Corps R. 532:42345. 15 indicates that it examined the relevant data, made a rational 16 connection between the facts, and explained its change in 17 position from the 2012 BiOp to the 2014 BiOp and Letter of 18 Concurrence. 19 not arbitrary or capricious. 20 7. NMFS’s explanation, albeit quite brief, The Court finds that NMFS’s change in position was Reinitiation of Consultation Was Not Required 21 Plaintiff’s eighth and ninth claims allege that Federal 22 Defendants violated the ESA (Claim VIII) and APA (Claim IX) when 23 they failed to reinitiate consultation after the issuance of new 24 information. Am. Compl. at 34–38, ¶¶ 133–46. 25 “The ESA’s implementing regulations require an action agency 26 to reinitiate formal consultation with the consulting agency when 27 ‘new information reveals effects of the action that may affect 28 listed species or critical habitat in a manner or to an extent 37 1 not previously considered’ (the ‘new information’ reinitiation 2 trigger).” 3 C.F.R. § 402.16(b)). 4 identified action is subsequently modified in a manner the BiOp 5 did not consider. 6 Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1088 (9th 7 Cir. 2015), cert. denied, 137 S. Ct. 293 (2016) (holding that 8 FWS’s expansion of critical habitat required the Forest Service 9 to reinitiate consultation). Defs. of Wildlife, 856 F.3d at 1264–65 (citing 50 Reinitiation is also required when an 50 C.F.R. § 402.16(c); see, e.g., Cottonwood “However, 50 C.F.R. § 402.16 does 10 not require agencies to stop and reinitiate consultation for 11 ‘every modification of or uncertainty in a complex and lengthy 12 project.’” 13 Cir. 2014) (quoting Sierra Club v. Marsh, 816 F.2d 1376, 1388 14 (9th Cir. 1987)). Conservation Cong. v. Finley, 774 F.3d 611, 619 (9th 15 The Ninth Circuit has found reinitiation is appropriate 16 where a new critical habitat was designated, Cottonwood, 789 F.3d 17 at 1084–85; where promised conservation measures fail, CBD v. 18 U.S. BLM, 698 F.3d at 1115; and where future actions differ from 19 the BiOp assumptions, N. Alaska Envtl. Ctr. v. Kempthorne, 457 20 F.3d 969, 981 (9th Cir. 2006). 21 cautioned that new information must relate to the direct and 22 indirect effects of the agency action, excluding cumulative 23 effects of private and state activities. 24 at 1387. 25 The Ninth Circuit has also Sierra Club, 816 F.2d Plaintiff believes that new studies and plans, such as the 26 Yuba River Ecosystem Restoration Reconnaissance Study and Habitat 27 Management and Restoration Plan, provide a basis upon which to 28 reinitiate consultation between the agencies. 38 Am. Compl. at 35, 1 ¶¶ 136–37. 2 plan provide “new information,” at no point does Plaintiff 3 provide any guidance as to how that information details effects 4 not previously considered in the consultation. 5 § 402.16(b) (requiring reinitiation where “new information” 6 affects a species or habitat “in a manner or to an extent not 7 previously considered” (emphasis added)). 8 read the regulations as requiring reinitiation of consultation 9 every time a relevant study is funded or published. While Plaintiff repeatedly states that the study and See 50 C.F.R. The Court does not As the Ninth 10 Circuit pointed out in Finley, a new study only requires 11 reinitiation of consultation where the original consultation 12 failed to address the effects described in the new information. 13 774 F.3d at 619–20 n.3 (affirming denial of a reinitiation claim 14 based on the publication of a recovery plan, containing “new” 15 studies drawn from old information). 16 described what new effects the study and plan detail that the 17 Federal Defendants did not previously consider, these exhibits do 18 not provide cause for reinitiation. 19 As Plaintiff has not As further evidence of new information, Plaintiff’s motion 20 cites the declaration of a fisheries biologist who states that 21 the conservation measures in the 2014 BiOp have not improved 22 conditions for the Listed Species because the dams block 23 migration and populations of the Listed Species have continued to 24 decline. 25 C. 26 management program did not function as planned because materials 27 washed away during large storm events. 28 F. FOR MSJ at 22–23; Reedy Decl. ¶¶ 10, 14-20, 25; Ex. B, The biologist also states that the large woody material Reedy Decl. ¶¶ 24–25, Ex. High storm flows similarly closed the fish ladders in early 39 1 2017, months after Plaintiff filed its Amended Complaint. 2 Decl. ¶ 22, Ex. D. Reedy 3 The ESA requires a plaintiff to provide notice of a 4 violation at least sixty days prior to filing suit. 16 U.S.C. 5 § 1540(g)(2)(A)(i). 6 compliance with citizen-suit timeliness and identification 7 requirements best serves the goal of the notice requirement. 8 Klamath-Siskiyou Wildlands Ctr. v. MacWhorter, 797 F.3d 645, 650 9 (9th Cir. 2015) (citing Gwaltney of Smithfield, Ltd. v. The Supreme Court has concluded strict 10 Chesapeake Bay Found., Inc., 484 U.S. 49, 60 (1987)). Notice 11 should “at a minimum provide sufficient information so that the 12 notified parties could identify and attempt to abate the 13 violation.” 14 U.S. Bureau of Reclamation, 143 F.3d 515, 522 (9th Cir. 1998)). 15 Here, many of the violations alleged in Plaintiff’s Motion 16 for Summary Judgment arose not only after Plaintiff’s notice to 17 Federal Defendants, but also after amendment of the complaint in 18 December 2016. 19 adequately notify Federal Defendants of violations arising from 20 new circumstances like the storm events in 2017. 21 events fail to provide cause to order Federal Defendants to 22 reinitiate consultation. Id. (quoting Sw. Ctr. for Biological Diversity v. Plaintiff’s notice and reinitiation claims do not Thus, these 23 In conclusion, the Court grants summary judgment to Federal 24 Defendants and Intervenor on all claims arising under Section 7. 25 Claim I is denied because Plaintiff has not shown that the 26 Corps’s 2013 Englebright Dam BA was arbitrary or capricious in 27 its assessment of the present proposed action, the Corps’s 28 discretion, and adverse effects. 40 Claim II is denied because 1 Plaintiff has not shown that NMFS was arbitrary or capricious in 2 concurring with the 2013 Englebright Dam BA. 3 because Plaintiff failed to show that NMFS acted arbitrarily or 4 capriciously in its change of position and issuance of the 2014 5 BiOp. 6 replacement of the 2012 BiOp with the 2014 BiOp was arbitrary or 7 capricious. 8 failed to show that Federal Defendants consultation was 9 insufficient and that new information required Federal Defendants Claim III is denied Claim IV is denied because Plaintiff has not shown NMFS’s Claims V, VIII, and IX are denied because Plaintiff 10 to reinitiate consultation. 11 did not show that the Corps violated its duty not to jeopardize 12 Listed Species. Claim VI is denied because Plaintiff 13 E. 14 Plaintiff also brings a takings claim under Section 9. 15 Plaintiff’s Claim VII alleges that the Corps has violated ESA by 16 taking the Listed Species without authorization. 17 32–34, ¶¶ 123–32. 18 the continued existences of the two dams, as well as the fish 19 ladders at Daguerre Point Dam and introduction of invasive 20 species through recreational activities. 21 Section 9 Prohibition Against Authorized Taking Am. Compl. at Plaintiff argues that the taking results from Id. at 32–33, ¶ 124. “All persons, including federal agencies, are specifically 22 instructed not to “take” endangered species.” TVA, 437 U.S. at 23 184. 24 shoot, wound, kill, trap, capture, or collect, or to attempt to 25 collect, or to attempt to engage in any such conduct.” 26 § 1532(19). 27 degradation that actually kills or injures wildlife. 28 v. Sweet Home Chapter of Cmty. for Great Or., 515 U.S. 687, 707– The ESA defines “take” as “to harass, harm, pursue, hunt, 16 U.S.C. “Harm” includes significant habitat modification or 41 See Babbitt 1 09 (1995). 2 Section 9 of the ESA is a distinct inquiry from whether they “may 3 affect” a species or its critical habitat under Section 7. 4 Tribe, 681 F.3d at 1028. 5 Whether activities qualify as a “taking” under Karuk NMFS granted the Corps an incidental take statement for its 6 activities related to sediment removal, maintenance and debris 7 removal in the fish ladders, gravel augmentation, and woody 8 instream material management. 9 Corps exceed the amount or extent of taking specified in the Corps R. 532:42637–40. Should the 10 incidental take statement, the agencies must reinitiate 11 consultation. 12 the incidental take statement, however, cannot constitute an 13 impermissible taking. 14 50 C.F.R. § 402.16. Taking within the limits of The main harms Plaintiff alleges, apart from those covered 15 by the incidental take statement, flow from the dams’ existences. 16 The Court has already found Federal Defendants did not act 17 arbitrarily or capriciously in concluding that the dams’ 18 existences do not constitute a present or continuing “agency 19 action.” 20 action, this action appears to be outside the agency’s 21 discretion. 22 this issue, a similar case in this district found that an agency 23 cannot be liable where it has no discretion over the activities 24 resulting in the alleged taking. 25 Norton, 236 F. Supp. 3d 1198, 1239 (E.D. Cal. 2017). 26 Even if the dams’ existences did constitute an agency While the Ninth Circuit has not clearly spoken on Nat. Res. Def. Council v. Relying on the Supreme Court’s reasoning in Home Builders, 27 Norton analogized to the holding in Department of Transportation. 28 v. Public Citizen, 541 U.S. 752 (2004) and found it inappropriate 42 1 to impose Section 9 liability on an agency performing a 2 nondiscretionary duty. 3 Audubon Soc'y v. Sutherland, No. C06-1608MJP, 2007 WL 1577756, at 4 *1 (W.D. Wash. May 30, 2007) (holding Public Citizen, as a NEPA 5 case, was inapposite to the plaintiff’s ESA Section 9 claims, 6 without addressing the language in Home Builders). 7 finds Norton’s lengthy analysis of this issue, including 8 application of the broader principles from Public Citizen and 9 Home Builders, more persuasive than the reasoning articulated in 10 11 236 F. Supp. 3d at 1239. Contra Seattle The Court Seattle Audubon. Because the Corps has not affirmatively engaged in a 12 discretionary activity that had prohibited impact on the Listed 13 Species, Plaintiff has not proven a violation of Section 9. 14 Palila v. Hawaii Dep’t of Land & Nat. Res., 639 F.2d 495, 497 15 (9th Cir. 1981). See 16 V. CONCLUSION AND ORDER 17 For the reasons set forth above: 18 (1) Plaintiff’s Motion for Summary Judgment is DENIED; (2) Federal Defendants’ Motion for Summary Judgment is 19 20 GRANTED; and 21 (3) Intervenor’s Motion for Summary Judgment is GRANTED. 22 IT IS SO ORDERED. 23 Dated: February 21, 2018 24 25 26 27 28 43

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