Defenders of Wildlife et al v. U.S. Fish and Wildlife Service et al

Filing 62

ORDER on Supplemental Briefing and Questions for Preliminary Injunction Hearing. Signed by Judge Lucy H. Koh on 5/18/2016. (lhklc3, COURT STAFF) (Filed on 5/18/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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DEFENDERS OF WILDLIFE, et al.,

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Plaintiffs,

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Case No. 16-CV-01993-LHK
SUPPLEMENTAL BRIEFING AND
QUESTIONS FOR PRELIMINARY
INJUNCTION HEARING

v.
U.S. FISH AND WILDLIFE SERVICE,
et al.,
Defendants.

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Supplemental Briefs
By 9:00 a.m. on May 20, 2016, Federal Defendants shall file a four page response to the
following questions:


Federal Defendants’ opposition brief states “[i]t is plain from the text of the CWA and the
Section 404(b)(1) Guidelines that their scope is limited to ‘waters of the United States’ and
impacts thereto, including secondary effects and cumulative effects to the aquatic
ecosystem. Accordingly, when issuing a CWA Section 404 permit, the Corps typically
limits its responsibility to the areas relating to the discharges of dredged or fill material
into waters of the United States and ‘those portions of the entire project over which the
[Government] has sufficient control and responsibility to warrant Federal Review, and that
is what it did in this case.”
o The above statement seems to indicate that the Corps still denies jurisdiction over
the entire project, for the life of the project. What authority does the Corps rely on
to enforce compliance with the Biological Opinion as to the entire project site and
over the life of the project?
o Is the Corps stating that there is not “sufficient control and responsibility to warrant
Federal Review” over the life of the project? Does this position contradict the
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Case No. 16-CV-01993-LHK
SUPPLEMENTAL BRIEFING AND QUESTIONS FOR PRELIMINARY INJUNCTION HEARING

Corps’ inclusion of the construction, maintenance, and operation of the project in
the Corps’ final environmental impact statement under NEPA? See ECF No. 24-1
at 4.

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

The Corps’ revised permit provides that “[t]he time limit for completing the work
authorized ends on March 15, 2021.” ECF No. 59-2. How does the Corps propose to
enforce the Biological Opinion after the work authorized by the permit is completed?
What ESA recourse exists if PVS fails to implement the promised conservation actions
after the time limit in the permit?



On August 28, 2015, the Corps represented to the Service that the incidental take statement
“would become binding on the applicant for the life of the project through a permit issued
by this office. . . . The Corps will include a special condition in any permit, if issued,
requiring the applicant to adhere to the [Biological Opinion].” ECF No. 43-6. The Corps
also explained “[t]he [Biological Opinion] is enforceable through a special condition under
any permit issued to the applicant.” In the March 8, 2016 Biological Opinion, the Service
explained that the Corps “has stated that it lacks authority to regulate any of [PVS’s]
activities beyond the construction, operations, and maintenance phases of the proposed
project.” ECF No. 24-1 at 106.
o To what extent must the Service independently evaluate the Corps’ jurisdiction
over the proposed action?
o Is whether the Service acted arbitrarily and capriciously in developing the
Biological Opinion dependent on whether the Corps incorporates the finished
Biological Opinion in the Section 404 Permit?

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United States District Court
Northern District of California

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By 9:00 a.m. on May 20, 2016, Plaintiffs shall file a three page response to the following
questions:


In Center for Biological Diversity v. U.S. Bureau of Land Management, 698 F.3d 1101,
1115 & n.9 (9th Cir. 2012), the Ninth Circuit indicated that conservation measures may be
enforceable under the ESA when the measures are incorporated into an incidental take
statement or the measures are incorporated into the proposed project design. See id.
(“Noncompliance with the ESA’s procedural and substantive requirements regarding
compliance with mitigation measures incorporated as part of the action project therefore
exposes an action agency and project applicant to citizen suits.”); see also Ctr. for
Biological Diversity v. U.S. Fish & Wildlife Serv., 807 F.3d 1031, 1046 & n.12 (9th Cir.
2015).
o Do Plaintiffs dispute that the proposed project design included the conservation
measures, including those occurring over the life of the project?
o Do Plaintiffs dispute that, if PVS fails to fully comply with the conservation
measures described in the 2016 Biological Opinion, the Corps must either reinitiate
consultation or the FWS or citizens may bring suit?



On August 28, 2015, the Corps represented to the Service that the incidental take statement
“would become binding on the applicant for the life of the project through a permit issued
by this office. . . . The Corps will include a special condition in any permit, if issued,
requiring the applicant to adhere to the [Biological Opinion].” ECF No. 43-6. The Corps
also explained “[t]he [Biological Opinion] is enforceable through a special condition under
any permit issued to the applicant.” In the March 8, 2016 Biological Opinion, the Service
explained that the Corps “has stated that it lacks authority to regulate any of [PVS’s]
activities beyond the construction, operations, and maintenance phases of the proposed
project.” ECF No. 24-1 at 106.
o To what extent must the Service independently evaluate the Corps’ jurisdiction
over the proposed action?
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Case No. 16-CV-01993-LHK
SUPPLEMENTAL BRIEFING AND QUESTIONS FOR PRELIMINARY INJUNCTION HEARING

o Is whether the Service acted arbitrarily and capriciously in developing the
Biological Opinion dependent on whether the Corps incorporates the finished
Biological Opinion in the Section 404 Permit?

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United States District Court
Northern District of California

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Hearing Questions
Each side shall have twenty minutes to address the following questions at the May 20,
2016 hearing. Federal Defendants and the intervenor are considered one side and shall share the
twenty minutes.
Questions for all parties:
 To determine the scope of environmental analysis under NEPA, the Corps must analyze all
areas of a project over which there is sufficient federal control to warrant federal review.
See 33 C.F.R. 325 App. B § 7(b). The Corps’ final environmental impact statement,
created pursuant to NEPA, evaluated the environmental impacts of the entire site for
construction, operation, and maintenance of the project. ECF No. 24-1 at 4.
o Do Plaintiffs contend that the Corps’ final environmental impact statement was too
broad in scope?
o What is the relationship between the scope of analysis under NEPA and the Corps’
permitting authority under the CWA?


The March 8, 2016 Biological Opinion states that “[t]he protective coverage of section
7(o)(2) may lapse if: (1) the Corps fails to require the Applicant to adhere to the Terms and
Conditions of the Incidental Take Statement through enforceable terms that are added [to]
their permit, [or] (2) the Corps fails to retain oversight to ensure compliance with the
Terms and Conditions of the Incidental Take Statement.” ECF No. 24-1 at 106. Why does
a failure by the Corps to incorporate the terms and conditions of the incidental take
statement into the Section 404 permit lead to a finding that the Service acted arbitrarily and
capriciously, rather than opening the Corps and PVS to liability under Section 9?



Is the “best scientific and commercial data” requirement subject to harmless error analysis?

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Questions for Plaintiffs
 Do Plaintiffs agree that the project could not proceed without a Section 404 permit and
thus the entire project is “interrelated” to the Corps permit? If not, do Plaintiffs believe
that the conservation measures are appropriately considered as “cumulative effects” of the
action rather than effects of the action?


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It appears that Plaintiffs seek a preliminary injunction enjoining construction of the entire
project. ECF No. 24 at 25. If the Court were to agree that Plaintiffs are likely to succeed
on their claims, what authority does the Court have to enjoin parts of the project that may
be outside the permitting authority of the Corps?

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Questions for Defendants
 The Corps determined that the entirety of the project cannot proceed but for the impacts to
the Corps’ jurisdictional waters. Please discuss the relationship of the fill activities to the
overall project.


Is the Corps’ obligation to avoid jeopardy to ESA-listed species under Section 7(a)(2) of
the ESA coextensive with the Corps’ duty to avoid jeopardy under the CWA and Section
404(1)(b) Guidelines?

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Case No. 16-CV-01993-LHK
SUPPLEMENTAL BRIEFING AND QUESTIONS FOR PRELIMINARY INJUNCTION HEARING

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IT IS SO ORDERED.

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Dated: May 18, 2016
______________________________________
LUCY H. KOH
United States District Judge

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United States District Court
Northern District of California

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Case No. 16-CV-01993-LHK
SUPPLEMENTAL BRIEFING AND QUESTIONS FOR PRELIMINARY INJUNCTION HEARING