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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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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FRIENDS OF THE RIVER,
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No.
2:16-cv-00818-JAM-EFB
Plaintiff,
v.
ORDER DENYING PLAINTIFF’S MOTION
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NATIONAL MARINE FISHERIES
FOR SUMMARY JUDGMENT, GRANTING
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SERVICE, et al.,
FEDERAL DEFENDANTS’ MOTION FOR
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Defendants.
SUMMARY JUDGMENT, AND GRANTING
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INTERVENOR’S MOTION FOR SUMMARY
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JUDGMENT
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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
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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
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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
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15
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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
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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
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Population Segment of North American green sturgeon (“green
8
sturgeon”) are anadromous fish.
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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
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(collectively, “the Listed Species”) as threatened under the ESA.
17
64 Fed. Reg. 50,394 (Sept. 16, 1999) (spring Chinook); 71 Fed.
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Reg. 834 (Jan. 5, 2006) (steelhead); 71 Fed. Reg. 17,757 (April
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7, 2006) (green sturgeon).
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the critical habitat for each of the Listed Species.
21
Reg. 52,488 (Sept. 2, 2005) (spring Chinook, steelhead); 74 Fed.
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Reg. 52300 (Oct. 9, 2009) (green sturgeon).
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status, the three species continue to swim towards extinction.
24
See Corps R. 532:42631 (“The CV spring-run Chinook salmon ESU is
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at moderate risk of extinction . . . [and] has worsened since the
26
last status review.”), 42634 (“The CCV steelhead DPS is at high
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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
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70 Fed.
Despite their listed
1
is at substantial risk of extinction”).
2
D.
The Englebright and Daguerre Point Dams
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The Yuba River is a Northern California river that flows
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into the Sacramento and Feather Rivers.
State of Cal. ex rel.
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State Land Comm’n v. Yuba Goldfields, Inc., 752 F.2d 393, 394
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(9th Cir. 1985).
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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
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spray high-pressure water along hillsides to dislodge the desired
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material, resulted in large deposits of debris into the Yuba
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River and subsequent flooding to the surrounding area.
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response to this problem, Congress enacted the Caminetti Act of
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1893, 33 U.S.C. § 661 et seq.
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California Debris Commission, “a federal agency staffed by
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members of the Army Corps of Engineers, which was empowered to
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regulate and oversee hydraulic mining in the Sacramento and
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Joaquin river systems within the State of California, 33 U.S.C.
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§ 663.”
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hydraulic mining under conditions that would preserve and protect
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the navigable waters; and (2) to plan works to control the debris
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and restore the rivers as navigable waterways, 33 U.S.C. §§ 664,
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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
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purpose.
At only 24 feet high, the dam was originally
Corps R. 532:42322.
Daguerre Point Dam serves as a
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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.
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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
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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
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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,
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required consultation with the Bureau of Fisheries to prevent
20
loss and damage to wildlife before constructing a water
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impoundment like Englebright Dam.
22
is no evidence that Englebright Dam complied with the Fish and
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Wildlife Coordination Act.
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stands, the 260-foot-high dam lacks fish ladders and completely
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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
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E.
Procedural History
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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
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Serv., et al., No. 2:06-cv-02845-LKK-JFM (E.D. Cal Aug. 26, 2014)
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(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.,
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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
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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
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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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