Wild Fish Conservancy v. United States Environmental Protection Agency et al

Filing 89

ORDER denying 69 Motion to Dismiss; denying 70 Motion for Judgment on the Pleadings signed by Judge Barbara J. Rothstein.(RH)

THE HONORABLE BARBARA J. ROTHSTEIN

1
2
3
4
5
6

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

7
8

WILD FISH CONSERVANCY,
NO. 15-CV-1731 BJR

9
Plaintiff,

10
11
12
13
14
15
16

ORDER DENYING (1) FEDERAL
DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
AND (2) COOK AQUACULTURE’S
MOTION TO DISMISS

v.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, et al.,
Defendants, and
COOKE AQUACULTURE PACFIC,
Defendant-Intervenor

17
18
19

I.

INTRODUCTION

20

This matter comes before the Court on (1) a Motion for Judgment on the Pleadings

21

filed by Defendants U.S. Environmental Protection Agency (“EPA” or “the Agency”) and

22

National Marine Fisheries Service (“NMFS” or “the Service”) and the named individual

23

Defendants (collectively, “Federal Defendants”); and (2) a Motion to Dismiss filed by

24

Intervenor-Defendant Cooke Aquaculture Pacific (“Cooke”). Both motions seek dismissal of

25

all claims set out in the Second Amended and Supplemental Complaint filed by Plaintiff Wild
Fish Conservancy (“WFC” or “the Conservancy”), Dkt No. 57. Having reviewed the briefs,
1

1

declarations, and exhibits filed in support of and opposition to these motions, and having heard

2

oral argument by the parties, the Court finds and rules as follows.

3

II.

BACKGROUND

4

A. Summary of Issues

5

This case involves the intersection of two federal statutes, the Clean Water Act, 33

6

U.S.C. §§ 1251, et seq. (“CWA”) and the Endangered Species Act, 16 U.S.C.A. §§ 1531 et

7

seq. (“ESA”). At issue is whether the Federal Defendants in this case have met their

8

consultation obligations under Section 7 of the ESA in their review of Washington’s sediment-

9

related water quality standards adopted under the CWA. In particular, Plaintiff’s complaint

10

focuses on the potential effects of those standards, and the commercial salmon farms Plaintiff

11

alleges they enable, on threatened salmonid species in Puget Sound. Plaintiff’s claims can be

12

grouped into two independent theories of recovery: (1) that the Federal Defendants’

13

consultation in 2011 regarding the effects of Washington’s revisions to its water quality

14

standards did not meet the requirements of the ESA and must be performed again; and (2) that

15

regardless of the adequacy of the 2011 consultation, events since 2011 have occurred that

16

trigger the Federal Defendants’ duty to reinitiate a consultation regarding those same

17

standards. Plaintiff’s objective in this lawsuit is to obtain a court order directing the Federal

18

Defendants to consult, using the best science currently available, on the potential effects of

19

Washington’s revisions to its sediment quality standards on species listed as threatened or

20

endangered under the ESA. The Defendants deny that the 2011 consultation was inadequate,

21

and claim they lack authority to reinitiate consultation.

22

Under the CWA, states are directed to develop, adopt, implement, and periodically, to

23

revise, a variety of standards governing the waters within their boundaries; EPA in turn is

24

directed to review those standards and revisions, approve or disapprove them, or in some

25

circumstances promulgate its own. 33 U.S.C. § 1313(c), 40 C.F.R. § 131.20. Section 7 of the
ESA requires EPA (and all federal agencies) engaging in an action that may affect listed
2

1

species to consult with the relevant service—the Fish and Wildlife Service where terrestrial

2

and freshwater species may be involved, and NMFS for marine species, including the listed

3

salmonids at issue in this case—on the effects of that action. 50 C.F.R. § 402.14. If the

4

consultation indicates that the proposed activity is likely to jeopardize a listed species, the

5

agency must identify reasonable alternatives to avoid the action’s negative impacts. 16 U.S.C.

6

§ 1536(a)(2) & (b)(3)(A).

7

The CWA-mandated water quality standards governing Washington waters include,

8

among other things, standards related to the management of sediment, which Washington first

9

adopted in 1991. Sec. Am. Compl., ¶ 52. In 1996, Washington revised those sediment

10

management standards, creating an exemption for salmon farms in Puget Sound from

11

compliance with generally applicable sediment management guidelines. Id. ¶¶ 53-54. The

12

EPA, after a long delay, litigation detailed below, and an informal consultation with NMFS,

13

provided its approval of the revisions in 2008 and after Plaintiff’s successful legal challenge to

14

that approval, again in 2011. Id. ¶¶ 54-61.

15

Plaintiff Wild Fish Conservancy is a nonprofit advocacy organization, “dedicated to the

16

preservation and recovery of the Northwest’s native fish species and the ecosystems upon

17

which those species depend.” Id. ¶ 8. The Conservancy alleges that the salmon farms in Puget

18

Sound jeopardize the continued existence of listed wild salmonids in Washington. Id. ¶¶ 47-

19

49. It argues that EPA should not have approved the revised standards, exempting salmon

20

farms from compliance with sediment standards, and challenges both the procedure EPA and

21

NMFS followed in the review, consultation, and approval of those revisions, and the

22

substantive result of that process.

23

The Conservancy’s complaint contains four causes of action. In the first, the

24

Conservancy claims that EPA’s consultation with NMFS in 2011 regarding revisions to

25

Washington’s water quality standards was inadequate, and that NMFS’s concurrence in EPA’s
approval was arbitrary, capricious, and an abuse of discretion. Sec. Am. Suppl. Compl., ¶¶ 803

1

83. Plaintiff’s second and third causes of action claim that EPA and NMFS, respectively,

2

violated the ESA by failing to reinitiate consultation regarding the likely effects of the approval

3

of the 1996 revisions, in light of recent events related to the salmon farms. Id. ¶¶ 84-88. The

4

fourth cause of action alleges that EPA failed to meet its substantive duty under the ESA to

5

ensure its actions in approving the standards would not jeopardize listed species. Id. ¶¶89-91.

6

Defendants seek dismissal of all four causes of action. The Federal Defendants claim

7

they had no duty to consult on approval of the 1996 revisions, and that the scope of the

8

consultation in any event would not extend to the potential effects of salmon farms on listed

9

species. Intervenor-Defendant Cooke also argues the Conservancy’s first and fourth causes of

10

action are barred by res judicata, based on a 2010 decision of this Court involving the same

11

parties and similar claims at issue here. All Defendants argue that the federal agencies have no

12

duty to reinitiate consultation because EPA lacks the “discretionary involvement and control”

13

over the approval action necessary to trigger such duty, and NMFS lacks the authority to

14

reinitiate consultation under any circumstances.

15
16
17

B. Legal Framework
1. The Clean Water Act
The purpose of the Clean Water Act was “to restore and maintain the chemical,

18

physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The CWA

19

established a cooperative process between state and federal regulators, whereby each state is

20

required to adopt and periodically revise water quality standards applicable to waters within its

21

borders, including water quality goals and pollution controls, which it must then submit to EPA

22

for review. See 33 U.S.C. § 1313(c). Under the CWA, EPA then has 60 days to review the

23

proposed standards or revisions for consistency with the CWA’s requirements and either

24

approve them, or disapprove them and notify the state of required changes. Id. § 1313(c)(3). If

25

the EPA rejects a state’s proposed water quality standards and the state fails to adopt the
required changes within 90 days, the Agency itself promulgates the standards. Id. § 1313(c)(4).
4

1

The Agency also has the discretion sua sponte to promulgate new or revised standards for a

2

state if it determines such standards are necessary to meet the requirements of the CWA. 33

3

U.S.C. § 1313(c)(4)(B).

4
5

2. Endangered Species Act
Congress enacted the Endangered Species Act in 1973 “to provide a means whereby

6

the ecosystems upon which endangered species and threatened species depend may be

7

conserved[.]” 16 U.S.C. § 1531(b). The ESA was enacted in 1973 to prevent the extinction of

8

fish, wildlife, and plant species that have been so depleted in numbers that they are in danger

9

of, or threatened with, extinction. 16 U.S.C. § 1531(a), (b); see generally Tennessee Valley

10

Auth. (“TVA”) v. Hill, 437 U.S. 153 (1978). The Endangered Species Act declares it “to be the

11

policy of Congress that all Federal departments and agencies shall seek to conserve endangered

12

species and threatened species and shall utilize their authorities in furtherance of the purposes”

13

of the ESA. 16 U.S.C. § 1531(c). The legislative history of the ESA “reveals an explicit

14

congressional decision to require agencies to afford first priority to the declared national policy

15

of saving endangered species” and “a conscious decision by Congress to give endangered

16

species priority over the ‘primary missions’ of federal agencies.” TVA v. Hill, 437 U.S. at 185.

17

In furtherance of these objectives, Section 7(a) of the ESA imposes on every federal

18

agency a substantive duty “to insure that any action authorized, funded, or carried out by such

19

agency is not likely to jeopardize the continued existence of any endangered species or

20

threatened species, or result in the destruction or adverse modification of [critical] habitat.” 16

21

U.S.C. § 1536(a)(2). The ESA also imposes a procedural duty on the “action agency” to

22

consult with the “consultation agency,” meaning either FWS or NMFS depending on the

23

species involved, if the agency’s action “may affect” a listed species. 50 C.F.R. § 402.14(a);

24

Turtle Island Restoration Network v. Nat’l Marine Fisheries Serv., 340 F.3d 969, 974 (9th Cir.

25

2003); Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1054 n. 8 (9th Cir.1994). The ESA
generally requires a formal consultation, which includes a study and a biological evaluation of
5

1

the agency action and its potential effects, and the development and adoption of methods for

2

avoiding or mitigating such effects. 50 C.F.R. § 402.14. A formal consultation is not required,

3

however, if after informal consultation, which may include conversations and correspondence

4

between the agencies, both agencies determine that the proposed action may affect but “is not

5

likely to adversely affect” the listed species. 50 C.F.R. § 402.14(b)(1). If the agencies do not

6

agree that the agency action “is not likely to adversely affect such species,” the regulations

7

require that the agencies undertake formal consultation, and identify reasonable and prudent

8

alternatives that will avoid the action’s anticipated adverse effects. See 16 U.S.C. §

9

1536(b)(3)(A); 50 C.F.R. § 402.13(a); Turtle Island v. Nat'l Marine Fisheries Serv., 340 F.3d

10
11

at 974.
Relevant to this case, ESA regulations also place additional, ongoing obligations on the

12

action agency and—Plaintiff argues—the consulting agency, to reinitiate consultation under

13

certain circumstances. Specifically, “[r]einitiation of formal consultation is required and shall

14

be requested by the Federal agency or by the Service, where discretionary Federal involvement

15

or control over the action has been retained or is authorized by law” if, among other potential

16

triggering events, “a new species is listed or critical habitat designated,” or “new information

17

reveals effects of the action that may affect listed species or critical habitat in a manner or to an

18

extent not previously considered.” 50 C.F.R. § 402.16.

19

C. Factual and Procedural Background

20

The EPA first approved Washington’s sediment management standards, one element of

21

the state’s comprehensive network of water quality standards, in 1991. Sec. Am. Compl., ¶ 52,

22

citing Wash. Admin. Code ch. 173-204. The regulations provided, among other things, for the

23

establishment of quality standards, management, and cleanup of contaminated sediments in

24

Washington’s waterways. Wash. Admin. Code ch. 173-204. In 1995, Washington adopted

25

revisions to its 1991 water quality standards, which it submitted to EPA for approval in 1996.
These 1996 revisions amended sediment source control provisions to exclude “Marine Finfish
6

1

Rearing Facilities”—or net pens operated by commercial salmon farms in Puget Sound—from

2

generally applicable sediment management standards. Wash. Admin. Code 173-204-412.

3

Plaintiff alleges that “[t]his regulation was intended to enable the issuance of permits to

4

commercial salmon farms in Puget Sound that would not require the facilities to implement

5

what was perceived as costly pollution control measures.” Sec. Am. Compl., ¶ 53.

6

Although EPA was required under the CWA to review and approve or disapprove the

7

1996 Washington revisions within 60 days of submission, for reasons that are not clear from

8

the record, it did not do so until some twelve years later, and only after the Conservancy filed a

9

lawsuit in 2008 to enforce that requirement. Id. ¶ 54. In the interim, (although Plaintiff claims

10

it should not have), Washington has treated the 1996 revisions as the applicable water quality

11

standards of the state, issuing permits to salmon farms under the exemption from generally

12

applicable sediment quality guidelines. Id. ¶ 55. After the Conservancy filed suit in 2008, EPA

13

approved Washington’s revised standards within a matter of months, after informal

14

consultation with NMFS and a determination that an approval was “not likely to adversely

15

affect” any listed species, including the three salmonid species in Puget Sound listed as

16

threatened under the ESA: the Puget Sound Chinook salmon, Hood Canal summer-run chum

17

salmon, and Puget Sound steelhead. See Wild Fish Conservancy v. U.S. Envtl. Prot. Agency,

18

No. C08-156 JCC, 2010 WL 1734850 (W.D. Wash. 2010) (“WFC I”).

19

In WFC I, the Conservancy challenged EPA’s 2008 informal consultation and approval

20

of the 1996 revisions. In 2010, in a ruling on cross motions for summary judgment, Judge

21

Coughenour held that EPA and NMFS had violated the ESA by failing to use the “best

22

available scientific and commercial data” in their informal consultation process. Judge

23

Coughenour ruled on narrow grounds, finding that the agencies’ failure to consider two NMFS

24

studies, the Salmon Recovery Plan and Orca Recovery Plan, was sufficient grounds for setting

25

aside EPA’s 2008 consultation and approval. He ordered the federal agencies to reconsider
their concurrence that a formal consultation was not required, “this time taking into account the
7

1

best available science.” Id. at *8. Because the narrow finding was sufficient basis for setting

2

aside the approval and requiring EPA to conduct the process anew, Judge Coughenour declined

3

to rule on the parties’ remaining arguments. Id. at *7.

4

In 2011, this time incorporating the two additional studies (and several other documents

5

not considered in 2008), EPA again approved the 1996 revisions. EPA did so having again

6

found, in informal consultation with and concurrence from NMFS, that the revisions were “not

7

likely to adversely affect listed species.” Sec. Am. Compl., ¶¶ 60-63. Again, EPA concluded it

8

was not necessary to conduct a formal consultation as to whether its approval of Washington’s

9

1996 sediment management revisions would affect threatened Puget Sound salmonids. It is this

10

informal consultation, and EPA’s approval resulting from it, that Plaintiff challenges in this

11

lawsuit.

12

As a distinct, independent theory of recovery, Plaintiff also challenges the Federal

13

Defendants’ failure to reinitiate consultation under the ESA, as discussed above, in response to

14

events that have occurred since the 2011 approval. The events include, in 2012, an outbreak of

15

an infectious virus (“IHNv”) at several of the salmon farms which, Plaintiff alleges, served to

16

amplify transmission to and among wild salmon populations. Sec. Am. Compl. ¶¶ 64-48. A

17

second event that Plaintiff alleges should have triggered the Federal Defendants’ duty to

18

reinitiate consultation was the collapse of one of Defendant-Intervenor’s net pens in August

19

2017, resulting in the release of between 160,000 and 305,000 Atlantic salmon into Puget

20

Sound. Id. ¶¶73-77. Plaintiff alleges the escaped Atlantic salmon, and efforts to recover them,

21

threated the food source, habitat, and health of listed salmonids. Id. ¶¶ 74-75. Additionally, in

22

2016 NMFS designated a critical habitat for listed Puget Sound Steelhead; Plaintiff claims this

23

action too should have triggered reinitiation of consultation. Id. ¶ 70.

24
25

8

1
2
3

III. DISCUSSION
A. Standard on a Motion for Judgment on the Pleadings and Motion to Dismiss
Defendant-Intervenor Cooke’s Motion to Dismiss is presumably brought under Fed. R.

4

Civ. P. 12(b)(6), which authorizes dismissal for failure to state a claim upon which relief can

5

be granted. Federal Defendants make their motion based on Fed. R. Civ. P. 12(c), which

6

similarly, authorizes a party to move for a judgment on the pleadings after pleadings are

7

closed. (“After the pleadings are closed—but early enough not to delay trial—a party may

8

move for judgment on the pleadings.”).1 Analysis under Rule 12(c) is “substantially identical”

9

to analysis under Rule 12(b)(6) because, under both rules, “a court must determine whether the

10

facts alleged in the complaint, taken as true, entitle the plaintiff to a legal remedy.” Chavez v.

11

United States, 683 F.3d 1102, 1108 (9th Cir. 2012).

12

Under both rules, a motion shall be granted when, “accepting all factual allegations in

13

the complaint as true, there is no issue of material fact in dispute, and the moving party is

14

entitled to judgment as a matter of law.” Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir.

15

2009). A court must assess whether the complaint “contain[s] sufficient factual matter,

16

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

17

U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Under

18

either rule, a court may consider documents outside the pleadings that are matters of public

19

record based on “sources whose accuracy cannot reasonably be questioned.” MGIC Indemnity

20

Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986).

21
22
23
24
25

1
Defendants have answered Plaintiff’s complaint and first amended complaint. Defendants have not
answered Plaintiff’s most recent Second Amended and Supplemental Complaint, which was filed on December
17, 2017, based on this Court’s direction that they need do so only if, and within 14 days after, this Court denies
the Defendants’ motions to dismiss. Given this unusual order of proceedings, Federal Defendants make their 12(c)
motion, in the alternative, under Fed. R. Civ. P. 12(b)(6). The Court need not decide the appropriate governing
rule, however, as the standard is the same.

9

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

B. The Doctrine of Res Judicata Does Not Bar Plaintiff’s Claims
Intervenor-Defendant Cooke Aquaculture argues that the claims articulated in the
Conservancy’s First and Fourth Causes of Action “were litigated to a final judgment in 2009
[sic] and are barred by res judicata.” Cooke Mot. to Dismiss at 17. Those two causes of action
challenge, respectively, NMFS’s “informal consultation with EPA that concluded with
NMFS’s April 8, 2011, concurrence letter” and EPA’s alleged failure to ensure no jeopardy to
listed species based, in part, on its 2011 approval of the Washington water quality standards.2
Sec. Am. Supp. Compl., ¶¶ 80-83; 90-91. Cooke argues that these claims were settled by Judge
Coughenour in WFC I, in which Wild Fish Conservancy, the same plaintiff in this case, sued
EPA and NMFS, the same defendants in this case. See Wild Fish Conservancy v. U.S. E.P.A.,
No. C08-0156-JCC, 2010 WL 1734850.
In WFC I, the Conservancy argued that EPA and NMFS had “violated the Clean Water
Act and the Endangered Species Act by approving Washington State regulations which exempt
Puget Sound salmon farms from general sediment-management standards.” Id. at *1. The
claims in that amended complaint related to EPA’s 2008 approval of revisions to the standards,
and challenged the approval on multiple grounds. Ultimately, Judge Coughenour found it
necessary to rule on only one, finding that “the Fisheries Service and EPA ignored a salmon
recovery plan and an orca recovery plan” constituting the best available science at the time,
and holding that in doing so, “the agencies thereby ran afoul of the Endangered Species Act.”
Id. at *6. Based on this finding, Judge Coughenour set aside EPA’s 2008 approval, and ordered
the defendants “to re-consider whether formal consultation is required”—in other words, to
conduct an informal consultation again to determine whether EPA’s approval would be likely
to adversely affect listed species—“this time taking into account the best available science.” Id.

24
25

The Court notes that Plaintiff’s Fourth Cause of Action is also based in part on EPA’s alleged failure to
reinitiate consultation in light of 2012, 2016, and 2017 events, which Cooke does not (and could not) argue was
resolved in 2010; a ruling in Cooke’s favor on the res judicata issue at this stage would not, therefore, result in
dismissal of this claim. See Sec. Am. Compl. ¶ 90.
2

10

1

at *8. Because the agencies’ failure to use the best available science decided the case, Judge

2

Coughenour explicitly declined to rule on any of the Conservancy’s remaining claims, “none

3

of which affects the Court’s holding.” Id. at *7. Cooke claims the case now before the Court

4

“raises all the same claims [the Conservancy] brought in 2008 and litigated to a final

5

judgment.” Cooke Mot. to Dismiss at 4.

6

The doctrine of res judicata, also referred to as claim preclusion, serves as an

7

affirmative defense where a party can demonstrate that in the two cases at issue, there are “(1)

8

an identity of claims, (2) a final judgment on the merits, and (3) privity between parties.” See

9

Turtle Island Restoration Network v. U.S. Dep't of State, 673 F.3d 914, 917–18 (9th Cir.

10

2012)(citations omitted). Cooke’s res judicata argument fails for lack of the first two of these

11

three essential elements.

12

First, the claims in WFC I and the case now before the Court are not identical. In

13

determining whether there is an identity of claims for claim preclusion purposes, the operative

14

criteria for consideration are: “(1) whether rights or interests established in the prior judgment

15

would be destroyed or impaired by prosecution of the second action; (2) whether substantially

16

the same evidence is presented in the two actions; (3) whether the two suits involve

17

infringement of the same right;” and, mostly importantly, “(4) whether the two suits arise out

18

of the same transactional nucleus of facts.” Id. at 918. The inquiry into the fourth criterion “is

19

essentially the same as whether the claim could have been brought in the first action,” and

20

“whether they could conveniently be tried together.” Id.

21

While from 30,000 feet it can be said that both cases relate to the adequacy of the

22

interagency consultation regarding Washington’s 1996 revisions to its water quality standards,

23

and EPA’s subsequent approvals of those standards, it cannot be denied that the two cases have

24

sought this Court’s judgment on two entirely separate and distinct agency actions: the first that

25

occurred in 2008, and the second in 2011. While Cooke attempts to elide the two events—“As
it does here, [in WFC I] Plaintiff challenged EPA’s 2008 approval of the net pen sediment
11

1

management standards”—it simply cannot be said that the claims here “arise out of the same

2

transactional nucleus of facts.” Plaintiff is not challenging the EPA’s 2008 approval in the case

3

now before this Court. There are certainly overlapping facts and law involved in the two cases.

4

But without a time machine, the instant case, which challenges a 2011 action, could not have

5

been brought in 2008. See Sec. Am. Supp. Compl. ¶¶ 60&61 (“EPA submitted an updated

6

biological evaluation to NMFS dated December 13, 2010 . . .. By letter and findings dated

7

April 8, 2011, NMFS concurred with EPA’s conclusion.”); cf. Turtle Island, 673 F.3d at 918

8

(Plaintiff “could have conveniently brought claims for NEPA and ESA violations when it filed

9

its complaint in Earth Island III in 1998.”).

10

Critically, as Cooke points out, in response to Judge Coughenour’s 2010 order, “EPA

11

updated its 2008 biological evaluation.” Cooke Mot. at 6 (emphasis added). The 2011

12

consultation was not a mere pro forma repeat of the 2008 consultation, with the added

13

consideration of two discrete studies as ordered by Judge Coughenour. According to Cooke,

14

the second consultation was in fact a materially different process. Distinct from the 2008

15

consultation, the 2011 consultation included a review of the two recovery plans, plus “the

16

science concerning the risk of sea lice infestations in Puget Sound” and “217 publications

17

related to marine finfish rearing collected by Plaintiff that it submitted after NMFS had

18

rendered its concurrence in 2008. . . . It also considered potential impacts on species listed on

19

the endangered species list after its 2008 decision.” Id. (emphases added). The two

20

“transactional nuclei of facts” related to the consultations at issue in WFC I and in this case are

21

not only distinct in time, but in substance as well.

22

Second, and independently fatal to Cooke’s res judicata argument, Cooke also cannot

23

demonstrate that there was “a final judgment on the merits” in WFC I of the claims raised in

24

this case. Other than the narrow question of whether the agencies used the best available

25

science in the 2008 consultation by failing to rely on the salmon and orca recovery plans, none
of the Conservancy’s other claims in WFC I can be said to have been litigated to final
12

1

judgment. Cooke asserts that “[f]ollowing production of a 2,677-page record, Judge

2

Coughenour ruled . . . that EPA’s consultation with NMFS under the ESA was inadequate for a

3

single reason,” and “[a]fter a full review of the extensive record . . . Judge Coughenour found

4

only one flaw with that earlier approval,” implying he rejected the Conservancy’s other claims.

5

Cooke Mot. at 5; Cooke Reply at 8-9. In WFC I, however, the Conservancy did not “fail[] to

6

persuade Judge Coughenour on any other issue,” as Cooke characterizes the ruling. Cooke

7

Reply at 10. On the contrary, Judge Coughenour took pains to clarify that he was not holding

8

that aside from the omission of the two recovery plans, the agencies’ consultation was based on

9

the best available science and therefore legally adequate. Instead, Judge Coughenour explicitly

10

declined to rule on the Conservancy’s other claims because additional rulings would not have

11

affected the Court’s decision to set aside the consultation. WFC I at *7 (“The parties’ lengthy

12

briefs contain many other arguments, none of which affects the Court’s holding. . . . Principles

13

of judicial forbearance counsel against further discussion.”).3 Because Judge Coughenour’s

14

judicial restraint concerning Plaintiff’s remaining claims cannot be construed as a final

15

judgment against them, Cooke’s res judicata argument fails.

16
17
18
19
20
21
22
23
24
25

3
On a related issue, the Conservancy has filed a surreply, asserting that Cooke has raised an estoppel
argument for the first time in its Reply, and asking the Court to strike this argument or allow the Conservancy an
opportunity to respond. In its surreply, the Conservancy claims “Cooke argues for the first time in its Reply that a
1998 order from the Washington’s [sic] Pollution Control Hearings Board, [(“PCHB”),] precludes ‘issues’ in this
case.” Pl. Surreply at 2. In its Reply, Cooke does refer to a “1997 PCHB Decision,” which the Court understands
to be a reference to the PCHB “Findings of Fact, Conclusions of Law and Order” entered in 1998, filed as Exhibit
2 to the Spencer Declaration at Dkt. No. 73. See Cooke Reply at 9. Cooke claims that the “PCHB heard multiple
expert witnesses over eighteen days of hearings, and ruled against Plaintiff on all issues.” The Conservancy
objects to Cooke raising this argument for the first time on reply, which is appropriate grounds for this Court to
strike it. See, e.g., Bach v. Forever Living Prod. U.S., Inc., 473 F. Supp. 2d 1110, 1122 n.6 (W.D. Wash.
2007)(“It is well established in this circuit that courts will not consider new arguments raised for the first time in a
reply brief.”). The Court finds Cooke’s intention in referencing the PCHB decision, however, unclear. Cooke does
not cite specific language in the 45-page document, or propose any legal framework by which it may be asking
the Court to assess the import of the decision, and the Court declines to wade through the decision to discern one.

13

1
2

C. EPA Had a Duty to Consult With NMFS Regarding Review and Approval of the 1996
Revisions to Washington’s Sediment Management Standards
Defendant EPA argues that although it did consult with NMFS in 2011 (and in 2008)

3

regarding the 1996 revisions to the Washington sediment management standards, it did not

4

have a duty to do so, and that absent such duty, all four of Plaintiff’s claims must fail. The

5

Agency’s position that it had no duty to consult appears to be based on two distinct premises:

6

(1) there was no “agency action” for ESA purposes because the approval did not “authorize,

7

fund, or carry out the permitting or licensing of net pens, [or] establish specific requirements

8

for net pens,” Fed. Defs. Motion at 18-20; and (2) “the applicable standard was set in 1996 and

9

there was no change to the environmental baseline when EPA made its 2011 approval.” Fed.

10

Defs. Reply at 7. The Agency also claims that any duty to consult would not have included a

11

review of the potential effects of net pens, including disease and escapement, on listed species.

12

The Court rejects all of these flawed arguments. That EPA has a duty to consult under

13

Section 7 of the ESA on its review of state water quality standards is a settled issue, as the

14

Agency’s own regulations have observed. See EPA Review and Approval of State and Tribal

15

Water Quality Standards, 65 Fed. Reg. 24641-01 (2000) (“EPA’s approval of new and revised

16

State and Tribal water quality standards is a Federal action subject to the consultation

17

requirements of section 7 of the Endangered Species Act.”). Judge Coughenour’s ruling in

18

WFC I confirmed that “[u]nder the Clean Water Act, the EPA has the responsibility of

19

approving or disapproving proposed state water-quality standards. Because the proposed

20

standards in this case potentially affected certain endangered wild salmon populations, the

21

Endangered Species Act required that the EPA consult with the Fisheries Service, either

22

formally or informally, before reaching a final decision.” WFC I, 2010 WL 1734850, at *2.

23

More specifically, in this case, the scope of the required consultation with NMFS

24

regarding the 1996 revisions to Washington’s sediment management standards includes the

25

effects of net pens, as EPA previously acknowledged in WFC I. See Fed. Defs. Combined
Cross Mot. for Summ. Judgment, Wild Fish Conservancy v. U.S. E.P.A., JCC 08-156, Dkt. No.
14

1

59 at 1 (“As required by the ESA, the agencies consulted and considered the possible adverse

2

effects of net pen operations on threatened or endangered species in Puget Sound.”). And

3

more specifically still, the effects of net pens include potential disease and escapement—again,

4

as EPA has previously acknowledged, both in judicial proceedings before Judge Coughenour,

5

and by its actions. Id. at 8 (“EPA’s Biological Evaluation specifically analyzed the potential

6

adverse effects of water quality degradation related to net pen operations, the transfer of sea

7

lice from farmed salmon to wild salmon, and the impacts of escaped farmed salmon on

8

competition for food and other resources.”); see also Fed. Defs.’ Ex. A, EPA Approval Letter

9

re: Washington’s Revised Sediment Management Standards and Technical Justification,

10

September 18, 2008 at 9 (“An increased incidence of disease among wild fish in Puget Sound

11

is considered a low risk by NOAA and there have been few documented cases of this actually

12

occurring. . . .”); id. at 10 (“There has been only one escapement event in Puget Sound since

13

2000 as best management practices have helped prevent the unintentional release of Atlantic

14

salmon from netpens. . . .”). These observations reflect EPA’s position that the effects of net

15

pens, including potential disease and escapement, are properly within the scope of a

16

consultation, which the regulations provide shall include the “direct and indirect effects of an

17

action,” including “activities that are interrelated or interdependent with the action.” 50 C.F.R.

18

§ 402.02. The Agency’s post hoc claim in this litigation that its prior consultations were

19

“voluntary,” and that it had no duty to review the effects of net pens, including disease and

20

escapement—and in fact, no duty to conduct a consultation at all—is simply not credible.

21

The Agency argues that (1) its approval did not change the “environmental baseline,”

22

which was set in 1996 when Washington adopted the revisions, and therefore it had no duty to

23

consult; and (2) the approval was not a “but for cause of net pens because those facilities

24

existed before EPA’s approval action.” Fed. Defs. Reply at 8. The Agency, however, has failed

25

to articulate why the Court should disregard EPA’s two prior consultations, the aforementioned

15

1

admissions, and Judge Coughenour’s previous holding in WFC I.4 Furthermore, the

2

fundamental flaw in EPA’s “baseline” and “but-for cause” arguments is that under the CWA,

3

EPA must review and approve or disapprove the revisions. While an approval may not have

4

changed the standards governing Washington waters, a disapproval certainly would have. The

5

Agency’s position—which would have the question of whether or not an agency has a duty to

6

consult turn on the outcome of a consultation—borders on the frivolous. The Court therefore

7

reaffirms that EPA’s review and approval process of the 1996 revisions was an “agency

8

action” under the ESA, triggering EPA’s duty to consult with NMFS pursuant to Section 7(a)

9

of the ESA, and that such consultation necessarily includes the effects of net pens, including

10
11
12

potential disease and escapement.
D. EPA Retained Sufficient “Discretionary Involvement or Control” Over the Action to
Implement Measures to Benefit Listed Species

13

In addition to the duty to consult on any discretionary action that may affect a listed

14

species, the ESA also imposes a duty to reinitiate consultation of prior actions under certain

15

circumstances, including, of relevance to this case, when “new information reveals effects of

16

the action that may affect listed species or critical habitat in a manner or to an extent not

17

previously considered,” or “a new species is listed or critical habitat designated that may be

18

affected by the identified action.” 50 C.F.R. § 402.16(a)&(d). If one (or more) such triggering

19

event occurs, the reinitiation “of formal consultation is required and shall be requested by the

20

Federal agency or by the Service,” but only “where discretionary Federal involvement or

21

control over the action has been retained or is authorized by law.” 50 C.F.R. § 402.16.

22
23
24
25

4
EPA’s reliance on National Association of Home Builders v. Defenders of Wildlife, 551 U.S. 644
(2007), is misplaced. That case concerned EPA’s obligation to consult on a matter in which, the Court found, EPA
had no discretion. Id. at 665 (finding obligation to consult only on “actions in which there is discretionary Federal
involvement or control”), citing 50 CFR § 402.03. Here, the parties do not dispute that EPA had (and has)
discretion in the process of reviewing and approving, or disapproving, a state’s water quality standards.

16

1

Plaintiff’s Second and Third Causes of Action allege a failure by EPA, in the Second

2

Cause of Action, and NMFS, in the Third, to reinitiate a required consultation concerning the

3

2011 approval of the 1996 revisions, in light of events that have occurred since the approval.

4

Sec. Am. Compl. ¶¶ 84-88. As discussed above, those events include a viral outbreak among

5

farmed salmon in Puget Sound in 2012, and the failure and collapse of a net pet in 2017,

6

resulting in the release of potentially hundreds of thousands of Atlantic salmon into Puget

7

Sound. Id. ¶¶ 64-79. In addition, NMFS designated critical habitat for Puget Sound steelhead

8

in 2016, also triggering, Plaintiff alleges, the Federal Defendants’ duty to reinitiate

9

consultation. Id. Defendants seek dismissal of the Second and Third Causes of Action, arguing

10

that neither EPA nor NMFS has a duty to reinitiate consultation on the 2011 approval of the

11

1996 revisions, because EPA lacks the requisite “discretionary involvement or control” over

12

the process of reviewing and approving the 1996 revisions.

13

The parties disagree on the standard that should govern this case. Defendants ask the

14

Court to look to Environmental Protection Information Center v. Simpson (“EPIC”) and Sierra

15

Club v. Babbit. 255 F.3d 1073 (9th Cir. 2001); 65 F.3d 1502 (9th Cir. 1995). The “agency

16

action” in both EPIC and Sierra Club involved discrete agreements—an incidental take permit

17

and a right-of-way agreement over federal land, respectively—that gave rise to a private

18

party’s rights. Plaintiff relies on Pacific Rivers Council v. Thomas and Cottonwood

19

Environmental Law Center v. U.S. Forest Service. 30 F.3d 1050 (9th Cir 1994); 789 F.3d 1075

20

(9th Cir. 2015). The “agency action” in Pacific Rivers and Cottonwood involved multi-year,

21

comprehensive forest plans over which the federal agency had ongoing, plenary control.

22

The Clean Water Act, as the parties note, grants “primary” responsibility to the states to

23

design and implement their own water standards, while also reserving to EPA a great deal of

24

ongoing authority over those standards. 33 U.S.C.A. §§ 1251(b), 1313. Thus, the facts before

25

the Court are distinguishable from both EPIC and Pacific Rivers. The Court need not decide
which line of cases most closely resembles this case because in all of the cited cases, the
17

1

essential question under the ESA is the same, regardless of the character of the agency action

2

at issue: whether the federal agency retains some discretionary involvement or control over the

3

action at issue, such that it has “the ability to implement measures that inure to the benefit of

4

the listed species.” EPIC, 255 F.3d at 1080, citing Sierra Club, 65 F.3d at 1509; see also

5

Cottonwood, 789 F.3d at 1087, citing Washington Toxics Coalition v. Environmental

6

Protection Agency, 413 F.3d 1024 (9th Cir. 2005) (“[I]t was EPA’s discretion to take actions

7

that ‘inure to the benefit’ of protected species that placed the registrations within the ambit of

8

Section 7.”); Id., citing Nat. Res. Def. Council v. Jewell, 749 F.3d 776, 784 (9th Cir. 2014)

9

(“Whether an agency must consult does not turn on the degree of discretion that the agency

10

exercises regarding the action in question, but on whether the agency has any discretion to act

11

in a manner beneficial to a protected species or its habitat.”). Whether the involvement or

12

control is authorized by the enabling statute, or is retained in a contract with a private party, is

13

not the determining issue before this Court. Moreover, as both EPIC and Cottonwood make

14

clear, the “agency action” cannot be defined, as EPA urges, as the discrete moment of

15

approval. See, e.g., Cottonwood, 789 F.3d at 1086 (“[T]here is nothing in the ESA or its

16

implementing regulations that limits reinitiation to situations where there is ‘ongoing agency

17

action.’”); EPIC, 255 F.3d at 1080 (looking to “various permit documents” to determine

18

whether agency retained authority “to make new requirements to protect species that

19

subsequently might be listed as endangered or threatened”) (emphasis added).

20

Thus, the question here is whether EPA retains discretionary involvement or control

21

over its approval of the sediment management standards such that in the event a jeopardy to a

22

listed species arises, EPA has authority to take action that will inure to the benefit of that

23

species. To answer that, the Court need look no further than the Federal Defendants’ own

24

internal documents construing the EPA’s ongoing discretionary involvement and control under

25

the CWA. See, e.g., “Memorandum of Agreement,” Fish and Wildlife Serv., 66 Fed. Reg.
11,202-01 (2001); “Policy Memo on Water Quality Standards,” Third Knutsen Decl., Ex. 3.
18

1

These documents contain explicit, unequivocal statements by the agencies that the CWA

2

authorizes EPA to remain involved in both the drafting and implementation of state water

3

quality standards, even after a state gains EPA’s approval, including for the specific purpose of

4

protecting a listed species. Id.

5

In particular, the Conservancy refers the Court to a “Memorandum of Agreement

6

Between the Environmental Protection Agency, Fish and Wildlife Service and National Marine

7

Fisheries Service Regarding Enhanced Coordination Under the Clean Water Act and

8

Endangered Species Act” (“MOA”), a document that was “designed to enhance coordination

9

between our agencies so that we can best carry out our responsibilities under the CWA and

10

ESA.” 66 Fed. Reg. at 11,203. Perhaps most damaging to Defendants’ position is the single

11

observation, made in response to public commentary, that could hardly be more on point:

12

“EPA and the Services have agreed that where information indicates an existing standard is not

13

adequate to avoid jeopardizing listed species, or destroying or adversely modifying designated

14

critical habitat, EPA will work with the State/Tribe to obtain revisions in the standard or, if

15

necessary, revise the standards through the promulgation of federal water quality standards

16

under section 303(c)(4)(B) of the CWA.” Id. at 11,206. In addition, the agencies rejected

17

public comments on the draft MOA that “it is not appropriate for EPA to compel a State to

18

reopen an existing water quality standard to avoid “jeopardy” because that threshold is not

19

contained in the CWA, and nothing in the CWA requires that water quality be improved

20

whenever doing so would benefit listed species.” Id. In response, the agencies reiterated that

21

“water-dependent endangered and threatened species are an important component of the

22

aquatic environment that the CWA is designed to protect, and steps to ensure the protection of

23

those species are well within the scope of the CWA.” Id.

24
25

Additional provisions from the MOA more fully outline this ongoing “discretionary
involvement” over approved standards. They include the following excerpts from the MOA:

19

1



“[T]he MOA [does not] call[] for States and Tribes to “consult” with the Services
under section 7 of the ESA. . . . The MOA cannot, and does not, impose any
requirements of section 7 on States and Tribes. Those requirements apply solely to
Federal agencies, and EPA continues to be responsible for fulfilling any applicable
requirements of section 7 [of the ESA] in its administration of the CWA.” 66 Fed.
Reg. at 11,203.



“[W]e agree with the comment that the MOA should put greater emphasis on the
development of programs by EPA, in consultation with the Services, for the
conservation of listed species under section 7(a)(1) of the ESA. The CWA is a
powerful vehicle for improving the quality of the aquatic environment on which
many endangered and threatened species depend. EPA’s mission under the CWA
includes reducing the risks to aquatic life and wildlife due to water quality
degradation. Reducing those risks can also help facilitate the recovery of listed
species. While the MOA will help ensure that EPA actions meet the substantive
requirements of section 7(a)(2) of the ESA, we believe the MOA should also help
identify affirmative steps under section 7(a)(1) of the ESA that EPA can take pursuant
to its CWA authorities to facilitate the recovery of listed species.” Id. at 11,204.



“We have also retained in the final MOA an oversight panel that will consist of
regional and headquarters personnel to provide oversight and coordination on all
aspects of the agreement. In addition, we have amended the draft MOA to specify
that the oversight panel, with input from the regional review teams will conduct a
‘proactive conservation review’ [under the ESA].” Id.



“The draft MOA indicated that EPA would propose to amend EPA’s water quality
standards regulations to provide that water quality shall be not likely to jeopardize
the continued existence of a listed species. We stated that such a rule would
essentially codify existing protection for endangered and threatened species under
the CWA since water quality that is so poor it would likely jeopardize a listed species
or destroy or adversely modify critical habitat fails to meet the fundamental
requirements of the CWA.” Id.

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

In light of these statements, EPA’s current position in this litigation—that it doesn’t
retain “discretionary involvement” in its approval of Washington’s 1996 revisions to the extent
that it could take action, if necessary, to benefit listed species—is unsupportable. The MOA
demonstrates that in the event a consultation with NMFS were to reveal a potential jeopardy,
EPA has the authority to confer with a state on standards EPA has approved; to unilaterally
revise that state’s standards in the event the state refused to do so; and even, EPA claims, to
revise criteria enumerated in the regulations for deciding whether to approve or disapprove

20

1

proposed standards in the first place. Id. at 11,205. (EPA could “revise the criteria if it

2

determines that more stringent criteria were in fact needed to protect endangered and

3

threatened species.”). While it is true that the CWA grants individual states a great deal of

4

discretion in implementing water standards, it is undeniable that the statute also reserves

5

substantial “discretionary involvement and control” for EPA. The Court is unable to discern a

6

reasonable, material distinction between the involvement and control outlined in EPA’s own

7

documents, and the ability to “revisit” an approval that EPA now disclaims in this litigation.

8
9

Other EPA documents confirm EPA’s understanding of its own authority under the
CWA to continue to influence state water quality standards to the benefit of listed species, even

10

after the approval process is complete. The “Policy Memo on Water Quality Standards

11

Approvals and Endangered Species Act (ESA) Consultations” was intended as a guide for

12

circumstances in which EPA has approved a standard but explicitly reserved the right to revise

13

the approval pending the results of an ESA consultation—a situation that is not presented here.

14

The memo indicates, however, that “[a]s a general matter,” EPA has the authority to make use

15

of the “full range of options available under Section 303(c) of the CWA for ensuring water

16

quality standards are protective of threatened and endangered species,” including “work[ing]

17

with the State or authorized Tribe to obtain revisions to the standards in the next triennial

18

review . . . [or] facilitat[ing] a more narrow set of revisions to the standards in the short term.”

19

Third Knutsen Decl., Ex. 3 at 3. The memo emphasizes that EPA should “make [] clear” that

20

“EPA approval of water quality standards is not irreversible or irretrievable because the

21

Agency retains substantial discretion to revise its decision based on the results of the

22

consultation,” and “[i]f clear and compelling information from the consultation indicates more

23

immediate action is necessary to prevent a loss of threatened or endangered species, EPA can

24

make a determination under CWA Section 303(c)(4)(B) that a revised or new standard is

25

necessary” or change an approval to a disapproval. Id. The memo does not reflect a position
that this discretion exists only under limited circumstances, as Defendants argue; it directs its
21

1

water division directors to “make clear” that the authority over a prior approval exists “as a

2

general matter.”

3

Taken together, the MOA and Policy Memo clearly demonstrate EPA’s ongoing

4

“discretionary involvement” in state water quality standards under the CWA—including

5

standards it has already approved—and EPA’s explicit reservation of the right to influence

6

those standards for the benefit of listed species. These documents confirm that EPA is not

7

limited to sitting helplessly by if a consultation were to reveal that in fact EPA’s approval of

8

Washington’s revisions may adversely affect listed species. The Agency—in its own

9

estimation—has a host of options at its disposal, ranging from “working with” Washington to

10

develop new standards, to promulgating new regulations governing the CWA approval

11

process. Defendants object that these documents are not statutes or regulations. They clearly

12

reflect, however, the reasonable construction of statutes and regulations, by the agencies

13

charged with their implementation. The Court is bound to defer to these determinations.

14

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984); Nat'l Ass'n of

15

Home Builders v. Defs. of Wildlife, 551 U.S. 644, 647 (2007).

16

Consistent with the standard articulated in the case law and with the Federal

17

Defendants’ own interpretations of the governing laws, the Court holds that EPA retains the

18

requisite “discretionary involvement and control” over its approval of Washington’s sediment

19

management standards such that, in the event one or more of the triggering events listed in the

20

ESA regulations occurs, EPA has the duty to reinitiate consultation. Defendants’ request to

21

dismiss Plaintiff’s Second and Third Causes of Action on this basis is denied.

22
23

E. NMFS Has the Authority to Reinitiate Consultation
Finally, Defendants argue that Plaintiff’s Third Cause of Action must be dismissed

24

because whatever may be the obligations of EPA to reinitiate consultation, NMFS has, at most,

25

authority only to “request” a consultation—a request that EPA is free to ignore. The regulation
outlining the duty to reinitiate consultation, as referenced above, provides “[r]einitiation of
22

1

formal consultation is required and shall be requested by the Federal agency or by the Service,

2

where discretionary Federal involvement or control over the action has been retained or is

3

authorized by law” and one of four triggering events occurs. 50 C.F.R. § 402.16.

4

Because by its plain language the provision that obligates EPA to reinitiate consultation

5

applies equally to NMFS, and because this question appears to be amply settled in this Circuit,

6

the Court denies Defendants’ motion to dismiss Plaintiff’s Third Cause of Action on this basis

7

as well. See Hoopa Valley Tribe v. Nat'l Marine Fisheries Serv., 230 F. Supp. 3d 1106, 1116–

8

17 (N.D. Cal. 2017) (“While the federal agencies’ arguments might be compelling if this was

9

an issue of first impression, the Ninth Circuit has already addressed this precise issue multiple

10

times and confirmed that both the action agency and the consulting agency have a duty to

11

reinitiate consultation.”), citing Salmon Spawning & Recovery All. v. Gutierrez, 545 F.3d 1220,

12

1229 (9th Cir. 2008) (“The duty to reinitiate consultation lies with both the action agency and

13

the consulting agency.”); Gifford Pinchot Task Force v. USFWS, 378 F.3d 1059, 1076–77 (9th

14

Cir. 2004) (holding that discovery of new facts “mandates reinitiating formal consultations”

15

and that “[the consulting agency] was obligated to reinitiate consultation”); EPIC, 255 F.3d at

16

1076 (“The duty to reinitiate consultation lies with both the action agency and the consultation

17

agency.”); see also Pacificans for a Scenic Coast v. Cal. DOT, 204 F.Supp.3d 1075, 1093

18

(N.D. Cal. 2016) (“Consistent with the plain text of [50 C.F.R. Section 402.16], the Ninth

19

Circuit has stated that the duty to reinitiate consultation lies with both the action agency and

20

the consulting agency. . . . The federal defendants’ effort to distinguish this clear precedent is

21

wholly unpersuasive. Formal consultation is a collaborative process that requires the

22

participation of both the Bureau and NMFS. The purpose of reinitiating formal consultation is

23

not simply to check off a procedural box, but to complete a formal consultation process that

24

ensures to the extent possible that there are no substantive violations of the ESA. Both the

25

NMFS and Bureau have a clear obligation to participate in and complete this reinitiation
process. As the Ninth Circuit has already held, ‘[t]he duty to reinitiate consultation lies with
23

1

both the action agency and the consulting agency.’ The defendants’ claim that a reinitiation

2

claim is not cognizable against NMFS fails.”), citing Salmon Spawning, 545 F.3d at 1229.

3

Whether or not these statements are dicta, as Defendants claim, the overwhelming weight of

4

authority is that the consulting agency’s duty to reinitiate consultation is coterminous with that

5

of the action agency, and Defendants have not cited a single case holding to the contrary. The

6

Court denies Defendants’ motions to dismiss Plaintiff’s Third Cause of Action as well.

7

IV.

8
9
10
11

CONCLUSION

For the foregoing reasons, the Court DENIES Federal Defendants’ Motion for
Judgment on the Pleadings. The Court also DENIES Defendant-Intervenor’s Motion to
Dismiss.
Signed this 7th day of August, 2018.

12
13

A

14

Barbara Jacobs Rothstein
U.S. District Court Judge

15
16
17
18
19
20
21
22
23
24
25

24