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

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and two federally-managed dams in the Yuba River.

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River (“Plaintiff” or “FOR”) sued the United States Army Corps of

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Engineers (the “Corps”) and National Marine Fisheries Service

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(“NMFS”) (collectively, “Federal Defendants”) alleging violations

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of the Endangered Species Act and Administrative Procedures Act.

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Yuba County Water Agency (“YCWA” or “Intervenor”) intervened in

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1

Friends of the

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the case.

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judgment, ECF Nos. 33, 38, 41, which were followed by opposition

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and reply briefs, ECF Nos. 49, 54, 57.

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below, the Court DENIES Plaintiff’s motion, GRANTS Federal

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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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II.

BACKGROUND

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A.

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The Endangered Species Act of 1973 (ESA) “reflects a

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conscious decision by Congress to give endangered species

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priority over the primary missions of federal agencies.”

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W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 495 (9th

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Cir. 2011) (quoting Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180

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(1978) (“TVA v. Hill”) (internal quotations marks omitted)).

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ESA tasks federal agencies with ensuring that any “agency action”

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is not likely to jeopardize the continued existence of any listed

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species.

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destroy or adversely modify the critical habitat of any listed

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species.

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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

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the acting agency to formally consult with the federal agency

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responsible for protecting that species.

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Grand Canyon Tr. v. U.S. Bureau of Reclamation, 691 F.3d 1008,

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1011–12 (9th Cir. 2012), as amended (Sept. 17, 2012).

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listed species is present in the area of a proposed action, the

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acting agency—here, the Corps—must conduct a biological

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assessment (“BA”), “for the purpose of identifying any endangered

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species or threatened species which is likely to be affected by
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50 C.F.R. § 402.14(a);

If a

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such action.”

16 U.S.C. § 1536(c).

At the end of the formal consultation process, the Secretary

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of the consulting agency—here, NMFS—must issue a Biological

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Opinion (“BiOp”).

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statement setting forth the Secretary’s opinion, and a summary of

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the information on which the opinion is based, detailing how the

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agency action affects the species or its critical habitat.”

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If the consulting agency believes that the project will

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jeopardize a listed species or adversely modify the species’

Id. § 1536(b)(3)(A).

A BiOp is a “written

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habitat, “the Secretary shall suggest those reasonable and

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prudent alternatives which he believes would not violate

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subsection (a)(2) and can be taken by the Federal agency or

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applicant in implementing the agency action.”

Id.

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Id.

The ESA also prohibits any federal agency from “taking” a

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listed species.

16 U.S.C. § 1538(a)(1)(B).

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meaning “to harass, harm, pursue, hunt, shoot, wound, kill, trap,

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capture, or collect, or to attempt to engage in any such

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conduct.”

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to, rather than the purpose of, a federal action, it is referred

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to as an incidental take.

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§ 17.3.

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agency issues the acting agency an incidental take statement

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along with the BiOp.

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agency subsequently modifies the action “in a manner that causes

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an effect to the listed species or critical habitat that was not

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considered in the [BiOp],” or if the acting agency exceeds the

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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).

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If the acting

50 C.F.R. § 402.16.

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B.

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The Administrative Procedure Act (APA) provides for judicial

Administrative Procedure Act

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review of federal agencies’ final actions.

5 U.S.C. § 702; see

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also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882 (1990).

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“Agency decisions under ESA are governed by the [APA], which

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requires an agency action to be upheld unless it is found to be

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‘arbitrary, capricious, an abuse of discretion, or otherwise not

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in accordance with law.’”

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1248, 1256–57 (9th Cir. 2017) (quoting Pac. Coast Fed’n of

Defs. of Wildlife v. Zinke, 856 F.3d

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Fishermen’s Ass’ns, Inc. v. Nat’l Marine Fisheries Serv., 265

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F.3d 1028, 1034 (9th Cir. 2001); 5 U.S.C. § 706(2)(A)).

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may find that an agency’s action was arbitrary and capricious,

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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.”

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Id. at 1257 (quoting Conservation Cong. v. U.S. Forest Serv., 720

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F.3d 1048, 1054 (9th Cir. 2013)).

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review, the court upholds the agency’s action unless the agency

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failed to consider relevant factors or did not articulate “a

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rational connection between the facts found and the choices

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made.”

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(9th Cir. 2016) (quoting Alaska Oil & Gas Ass’n v. Jewell, 815

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F.3d 544, 554 (9th Cir. 2016)).

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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

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changes to previous agency positions.

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must provide a reasoned explanation for adoption of its new

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policy—including an acknowledgment that it is changing its
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Id. at 681.

“An agency

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position and if appropriate, any new factual findings that may

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inform that change—but it need not demonstrate that the new

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policy is better than its prior policy.”

Id. at 682.

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C.

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Central Valley spring-run Chinook salmon (“spring Chinook”),

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Central Valley steelhead (“steelhead”), and the Southern Distinct

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Population Segment of North American green sturgeon (“green

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sturgeon”) are anadromous fish.

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into freshwater, anadromous fish migrate to the ocean as

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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

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of habitat has decimated fish populations.

Corps R. 532:42358.

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Current populations are a fraction of their historical abundance.

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Corps R. 532:42351, 42397, 42441.

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listed the spring Chinook, steelhead, and green sturgeon

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(collectively, “the Listed Species”) as threatened under the ESA.

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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.

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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.

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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

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last status review.”), 42634 (“The CCV steelhead DPS is at high

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risk of extinction . . . and the extinction risk is

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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

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is at substantial risk of extinction”).

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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.

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technique in particular had “disastrous ramifications” for the

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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.”

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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

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Dam in 1906, diverting the river around it in 1910.

Corps R.

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532:42464–65.

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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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partial to complete barrier in fish passage along the Yuba River.

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Corps R. 532:42465.

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surmount the dam since fish ladders were constructed in the early

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1920s.

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so Daguerre Point Dam completely blocks their upstream migration.

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Corps R. 532:42606.

Id.

Some salmon and steelhead have been able to

Green sturgeon are unable to use the fish ladders,

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The River and Harbors Act of 1935, Pub. L. 409, 74th

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Congress, approved August 30, 1935, 49 Stat. 1028, authorized

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construction of public works in the Sacramento River and its

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tributaries.

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Engineers recommended constructing a reservoir at Narrows in the

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Yuba River to control debris.

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construction of that project, named the Englebright Dam, was

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completed in 1941.

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Point Dam, the dam was not built for flood control.

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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.

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The Fish and Wildlife Coordination Act, enacted in 1934,

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required consultation with the Bureau of Fisheries to prevent

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loss and damage to wildlife before constructing a water

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impoundment like Englebright Dam.

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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.

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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
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of dams, hydropower facilities, and water diversions on Listed

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Species within the Yuba River.

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within this district.

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No. 2:00-cv-01410-DFL-PAN (E.D. Cal. Aug. 17, 2001) (Levi, J.)

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(seeking an order requiring NMFS to issue proposed and final

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rules pursuant to § 4(d) of the ESA for spring run chinook);

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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

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Yuba River); S. Yuba River Citizens League v. Nat’l Marine

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Fisheries Serv., et al., No. 2:13-cv-00059-MCE-EFB (E.D. Cal.

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Dec. 23, 2015) (England, J.) (requesting NMFS set aside

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extensions to 2012 BiOp deadlines).

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The first consultation between the Corps and NMFS regarding

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Yuba River activities occurred around 2000, in response to a

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lawsuit brought by the South Yuba River Citizens League (SYRCL).

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Corps R. 356:23031.

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consultation with NMFS in a BA regarding the impact of

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Englebright and Daguerre Point Dams and water diversions on

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spring Chinook and steelhead.

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issued a BiOp finding that the dams’ operations were not likely

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to jeopardize the continued existence of the spring Chinook and

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steelhead or destroy or adversely modify designated critical

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habitat.

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proposed action . . . is the continuation of current Corps

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operations of Englebright and Daguerre Point Dams,” and “[a]n

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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

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permits, licenses and easements to non-federal entities for their

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operations of water diversion facilities at or near the dams.”

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Corps R. 356:23033.

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The Corps’s 2007 BA similarly defined the agency action as

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the “continuation of current Corps operations associated with

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Englebright and Daguerre Point Dams on the Yuba River” with

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respect to its impact on spring Chinook, steelhead, and green

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sturgeon.

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again determined that the agency action was not likely to

Corps R. 178:13641–42.

In the 2007 final BiOp, NMFS

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jeopardize the List Species, but found a likelihood of incidental

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take.

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Corps R. 368:24749.
In 2012, the Corps prepared a BA that defined the agency’s

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action differently.

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Consultation Handbook, the Corps determined that the future

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effects of the dams’ presence should be included in the

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environmental baseline.

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finding based on the argument that the agency did not have the

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authority to change the presence of these preexisting facilities.

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Id. at 186:14185–86.

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Corps’s proposed actions, including those the Corps believed were

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nondiscretionary, were likely to jeopardize the listed species.

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Corps R. 389:29663.

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alternatives to avoid jeopardizing the Listed Species.

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389:29664.

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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

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sought to reinitiate consultation based on “new information.”

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Corps R. 544:43422.

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that the dams’ continued existence was not an agency action

In 2013, the Corps reasserted its argument

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because it was non-discretionary.

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also broke up what it previously considered one “agency action”

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along the Yuba River into multiple smaller parts, separating

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actions connected with the Englebright Dam, Daguerre Point Dam,

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and licensing.

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consultation on outgrants for the Narrows I and II and an

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easement for the Brophy diversion to a later date.

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81:4095–96.

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consultation, while the 2013 Englebright BA sought only informal

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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

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the 2012 BiOp.

13

Letter of Concurrence (“Letter of Concurrence”), the agency

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agreed that the Corps’s proposed action at Englebright was not

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likely to adversely affect the Listed Species.

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581:48897.

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BiOp”), NMFS concluded that the Corps’s proposed action at

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Daguerre Point was not likely to jeopardize the Listed Species.

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Corps R. 532:42637.

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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

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well as the Bureau of Land Management (“BLM”), in April 2016.

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ECF No. 1.

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in November 2016.

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Plaintiff seeks declaratory and injunctive relief.

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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

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Complaint: one APA claim against the Corps for issuing the 2013

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Englebright BA (Count I); four APA claims against NMFS for
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concurring with the Englebright BA (Count II), issuing the 2014

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BiOp (Count III), rescinding the 2012 BiOp (Count IV), and

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failing to reinitiate consultation with the Corps (Count IX); and

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four ESA claims against the Corps for inadequate consultation

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with NMFS (Count V), jeopardizing the Listed Species (Count VI),

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taking the Listed Species (Count VII), and failing to reinitiate

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consultation with NMFS (Count VIII).

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146.

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Am. Compl. at 26–38, ¶¶ 96–

Following the submission of cross-motions on summary

10

judgment, Plaintiff moved to strike portions of Federal

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Defendants’ Statements of Facts.

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Arguments on the summary judgment motions and the Motion to

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Strike were heard at oral argument on November 21, 2017.

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Order, ECF No. 61.

Mot. Strike II, ECF No. 56.

Minute

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III.

STANDARD OF REVIEW

The parties have filed cross-motions for summary judgment.

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Summary judgment is the appropriate mechanism for deciding, as a

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matter of law, whether the administrative record supports the

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agency action and whether that action is otherwise consistent

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with the APA standard of review.

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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

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agency’s interpretation of the statutes and regulations that

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define the scope of its authority.

26

Network v. U.S. Dep’t of Commerce, No. 13-17123, 2017 WL 6598627,

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at *5 (9th Cir. Dec. 27, 2017) (citing Chevron, U.S.A., Inc. v.

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Nat. Res. Def. Council, 467 U.S. 837, 843 (1984)).
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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

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inconsistent with the regulation,’ or where there are grounds to

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believe that the interpretation ‘does not reflect the agency’s

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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

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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.

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Dep’t of Indus. Relations, 730 F.3d 1024, 1036 (9th Cir. 2013)).

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12

Under

Marsh, 869 F.3d at

1

IV.

OPINION

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A.

Standing

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As an initial matter, Federal Defendants have not disputed

4

that Plaintiff, an environmental organization, has standing in

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this case.

6

The only party whose standing has been challenged is

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Intervenor, by Plaintiff in its Reply Brief.

FOR Reply, ECF No.

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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

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granting in part and denying in part Plaintiff’s Motion to Strike

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Intervenor’s Memorandum of Points and Authorities.

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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.

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Intervention

waived any arguments against Intervenor’s standing.

Plaintiff did not oppose that motion.

See

Accordingly, Plaintiff has

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B.

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Plaintiff filed a motion to strike the legal arguments

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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

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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.

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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

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years since Kraayenbrink was published, the Ninth Circuit has not

Kraayenbrink, 632

Joint Reply at 1.

Federal

In the seven

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1

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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