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

Filing 92

ORDER signed by District Judge John A. Mendez on 10/30/2020; GRANTING IN PART AND DENYING IN PART 85 Motion to Remand. Plaintiff's Motion for a remand schedule is DENIED. Plaintiff's Motion to stay consideration of the Section 9 claim during the remand period is GRANTED. (Tupolo, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FRIENDS OF THE RIVER, a nonprofit corporation,
Plaintiff,

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NATIONAL MARINE FISHERIES
SERVICE, et al.,

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2:16-cv-00818-JAM-JDP

ORDER GRANTING PLAINTIFF’S
MOTION FOR REMAND AND STAY,
DENYING PLAINTIFF’S MOTION FOR
REMAND SCHEDULE

v.

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No.

Defendants.

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This matter is before the Court on Friends of the River’s

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(“Plaintiff”) motion for an order of remand, remand schedule, and

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stay of Section 9 claim.

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The National Marine Fisheries Service (“NMFS”) and the United

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States Army Corps of Engineers (“CORPS”) (collectively, “Federal

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Defendants”) partially opposed this motion.

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No. 86.

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partially opposed this motion.

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87.

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Mot. to Remand and Stay, ECF No. 85.

Defs.’ Resp., ECF

Intervenor Defendants, Yuba County Water Agency, also
Intervenor Def.’s Opp’n., ECF No.

For the reasons set forth below, the Court GRANTS

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Plaintiff’s motion for an order of remand, DENIES Plaintiff’s

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motion for a remand schedule and GRANTS Plaintiff’s motion for
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stay of their Section 9 claim during the remand.1

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I.

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BACKGROUND

The Corps operates and maintains two dams on the Yuba River,

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Daguerre Point, and Englebright.

First Amended Compl. (“FAC”),

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ECF No. 25 ¶ 46.

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opinion (“BiOp”) for Daguerre finding that the Corp’s activities

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were not likely to jeopardize the survival or recovery of three

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fish species listed as threatened under the Endangered Species

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Act (“ESA”).

On May 12, 2014, the NMFS issued a biological

FAC ¶ 94.

NMFS also issued a letter of concurrence

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(“LOC”) agreeing with the Corp’s assessment that its activities

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at Englebright were not likely to adversely affect the listed

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species.

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Federal Defendants challenging these decisions under both the

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Administrative Procedure Act (“APA”) and the ESA.

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FAC.

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Plaintiff’s motion for summary judgment and granted summary

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judgment to the Defendants.

FAC ¶ 95.

Plaintiff brought nine claims against

See generally

In an order issued February 22, 2018, this Court denied

Order, ECF No. 62.

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The 9th Circuit reversed and remanded in part this Court’s

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grant of summary judgment, finding that the NMFS’ 2014 BiOp and

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LOC were arbitrary and capricious.

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786 Fed. App’x 666, 669 (9th Cir. 2019).

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Circuit found that Plaintiff’s Section 9 “take” claim was not

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adequately considered and directed this Court to consider the

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legal merits of the claim.

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Circuit’s ruling, Plaintiff now moves this Court to order a

Friends of the River v. NMFS,
Additionally, the 9th

Id. at 670-71.

Considering the 9th

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for September 15, 2020.
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remand to the NMFS so it can reassess its 2014 BiOp and LOC, as

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well as a stay of the Section 9 claim during the remand.

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3. Both Federal and Intervenor Defendants agree that the Section

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9 claim should be stayed.

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Resp. 1; Opp’n 3.
II.

A.

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Mot. 2-

OPINION

NMFS Options on Remand
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Legal Standard

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If the grounds for agency action are inadequate and a court

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remands that action as a result, the agency on remand may either

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“offer a fuller explanation of the agency’s reasoning at the

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time of the agency action” or “[a]lternatively, the agency can

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deal with the problem afresh by taking new agency action.” Dep’t

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of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct.

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1891, 1907-08 (2020) (internal quotation marks and citation

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omitted).

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2.

Analysis

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Plaintiff and Federal Defendants agree that on remand the

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NMFS may choose to either offer a more in-depth explanation of

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its original findings, or it can deal with the problem afresh by

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taking new agency action.

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However, Intervenor Defendants disagree, arguing that the

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language of the 9th Circuit’s Order limits the NMFS on remand to

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only providing a “fuller explanation, based on the existing

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record of proceedings.”

Resp. 4; Pls.’ Reply 1-2, ECF No. 89.

Opp’n 13.

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The Court agrees with Plaintiff and Federal Defendants that

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the NMFS may comply with the 9th Circuit’s Order by taking a new

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agency action, in this case issuing a new BiOp, if it so

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chooses. Resp. 4; Reply 1-2. Intervenor Defendants are correct
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that, in its Order, the 9th Circuit directed a remand of the

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2014 opinions to the NMFS “for further explanation.”

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the River, 786 Fed. App’x at 668.

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directed this Court to remand to the NMFS so that it may

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“reassess” its 2014 opinions, indicating that the NMFS may also

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choose to change its approach by adopting a new BiOp.

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670.

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Florida Power & Light Corporation for the proposition that “if

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the reviewing court simply cannot evaluate the challenged agency

Friends of

However, the Order also

Id. at

This is consistent with the 9th Circuit’s citation to

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action on the basis of the record before it, the proper course,

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except in rare circumstances, is to remand to the agency for

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additional investigation or explanation.”

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Power & Light co. v. Lorion, 470 U.S. 729, 744 (1985)) (emphasis

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added).

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Department of Homeland Security, makes clear that on remand an

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agency may either provide a better explanation of its action or

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engage in a new agency action.

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Ct. at 1908.

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Id. (quoting Fla.

Further, the Supreme Court’s recent decision in

Dep’t of Homeland Sec., 140 S.

Additionally, Intervenor Defendant’s suggest that the ESA

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itself prevents NMFS from engaging in a new agency action.

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Opp’n 12-14.

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to reinitiate consultation rests with the action agency, in this

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case the Corps.

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may lack authority to order the Corps to comply with its request

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for consultation, see Sierra Club v. Marsh, 816 F.2d 1376, 1386

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(9th Cir. 1987), it does have the authority to reinitiate

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consultation when circumstances warrant, see Salmon Spawning &

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Recovery All. v. Gutierrez, 545 F.3d 1220, 1229 (9th Cir. 2008).

First, they argue that under the ESA the decision

Opp’n 12.

The Court disagrees.

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While the NMFS

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Thus, on remand the NMFS may choose to reinitiate consultation,

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in collaboration with the Corps and issue a new BiOp.

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Intervenor Defendants argue that the NMFS may not redefine the

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scope of the proposed agency action.

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Plaintiff points out, this was an issue on appeal that the 9th

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Circuit did not reach because of the inadequacies of the BiOp

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and LOC.

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the Court at this time but may be relitigated by the parties

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after NMFS completes its work on remand.

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B.

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Reply 7.

Opp’n 14.

Second,

However, as

As such, this issue need not be addressed by

Conditions on Remand
1.

Legal Standard

Although “courts may not ‘usurp[]an administrative

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function’ they retain equitable powers to shape an appropriate

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remedy”, including the parameters of a remand order.

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Wild Swan v. U.S. Envitl. Prot. Agency, 74 F. App’x 718, 721-22

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(9th Cir. 2003) (quoting FPC v. Idaho Power Co., 344 U.S. 17, 20

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(1952)).

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2.

Friends of

Analysis

Plaintiff and Intervenor Defendants both argue that the

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Court should impose a schedule for the NMFS on remand.

Mot. 4-

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5; Opp’n 4.

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the NMFS to file quarterly reports documenting its progress.

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Mot. 7.

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for a prompt resolution given the various interests and

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threatened species at stake, the Court declines to impose a

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schedule in this case.

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decide how it will comply with the remand order, it is difficult

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to determine how long it will take.

Additionally, Plaintiff urges this Court to require

While the Court is sympathetic to the parties’ desire

Because the NMFS has the discretion to

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Resp. 5.

Additionally, the

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usual complexities of issuing a thorough BiOp, coupled with the

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new uncertainties of operating during the COVID-19 pandemic,

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warrant giving NMFS flexibility in complying with the remand.

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Grothe Decl. 4-5.

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compliance with the ESA, the Court is confident that the NMFS

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will comply with the remand order “as expeditiously as possible

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in coordination with the Corps” under the circumstances.

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5. The Court will however continue to monitor NMFS’ compliance

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with this Order by requiring the parties to file periodic joint

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status reports that include specific details regarding the work

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completed and actions taken by NMFS as well as best estimates as

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to when its work will be completed. The first joint status order

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shall be filed ninety days from the date of this Order, i.e.

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January 29, 2021 and every ninety days thereafter until the

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matter is ready for further review by this Court.

As the agency entrusted with ensuring

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Resp.

III. ORDER

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For the reasons set forth above, the Court GRANTS

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Plaintiff’s Motion to remand and DENIES Plaintiff’s Motion for a

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remand schedule.

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Section 9 claim during the remand period is GRANTED.

Plaintiff’s Motion to stay consideration of the

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IT IS SO ORDERED2.

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Dated: October 30, 2020

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The court agrees with Defendants that entry of judgement is
premature at this stage. See Nat. Res. Def. Council v. Evans,
243 F. Supp.2d 1046, 1047 (N.D. Cal. 2003) (“An order remanding a
matter to an administrative agency is a non-final interlocutory
order.”).
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