Cal. Trout, Inc. v. U.S. Bureau of Reclamation

• Citation: 115 F.Supp.3d 1102
• Decision Date: 22 June 2015
• Docket Number: Case No. CV 14–7744 FMO (PLAx)
• Parties: California Trout, Inc., Plaintiff, v. United States Bureau of Reclamation, et al., Defendants.
• Court: U.S. District Court — Central District of California

115 F.Supp.3d 1102

California Trout, Inc., Plaintiff,

v.United States Bureau of Reclamation, et al., Defendants.

Case No. CV 14–7744 FMO (PLAx)

United States District Court, C.D. California.

Signed June 22, 2015

Brian Segee, Ojai, CA, Margaret Morgan Hall, Santa Barbara, CA, Nicole Gildersleeve Di Camillo, Santa Barbara, CA, for Plaintiff.

Rickey Doyle Turner, Jr., US Department of Justice, Denver, CO, for Defendants.

ORDER Re: PENDING MOTIONS

Fernando M. Olguin, United States District Judge

Having reviewed and considered all the briefing filed with respect to Federal Defendants' Motion to Dismiss Plaintiff's Complaint as Moot ("Motion to Dismiss") and the Joint Applicants' Motion to Intervene ("Motion to Intervene") (collectively, "Motions"), the court concludes that oral argument is not necessary to resolve the Motions.See Fed.R.Civ.P. 78 ; Local Rule 7–15; Willis v. Pac. Mar. Ass'n, 244 F.3d 675, 684 n. 2 (9th Cir.2001).

INTRODUCTION

California Trout, Inc. ("California Trout" or "plaintiff") filed a Complaint against the United States Bureau of Reclamation ("the BOR"); Lowell Pimley, Acting Commissioner of the BOR; the United States Department of the Interior ("the DOI"); and Sally Jewell, Secretary of the DOI (collectively, "defendants") for violations of the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq. In particular, plaintiff alleges that the BOR has not complied with the biological opinion ("BiOp")¹ and the accompanying incidental take statement ("ITS")² issued by the National Marine Fisheries Service ("NMFS") in 2000. (See Complaint for Declaratory and Injunctive Relief ("Complaint") at ¶¶ 55–74). Plaintiff alleges that such non-compliance has resulted in violations of Sections 7(a)(2) and 9 of the ESA. (See id. at ¶¶ 75–93). Plaintiff seeks declaratory and injunctive relief with respect to both claims. (See id. at Prayer for Relief).

On January 20, 2015, the Cachuma Conservation Release Board ("CCRB"), the Santa Ynez River Water Conservation District ("Parent District"), and the Santa Ynez Water Conservation District, Improvement

District No. 1 ("ID No. 1") (collectively, the "Cachuma Users") jointly requested to intervene in the action as defendants. (See Motion to Intervene at 2). The Cachuma Users assert that they "hold a substantial interest in the outcome of this litigation [,]" and that the "federal Defendants do not adequately represent [their] interests[.]" (See id. at 3).

Defendants subsequently filed their Motion to Dismiss, arguing that plaintiff's claims are moot because the complaint no longer presents a case or controversy. (See Motion to Dismiss at 12).

FACTUAL BACKGROUND

This case "challenges BOR's ongoing failure to adequately operate the Hilton Creek Watering System (‘System’) under the Cachuma Project." (See Complaint at ¶ 6). The Cachuma Project supplies water for several local water agencies in Santa Barbara County, California. (See id. at ¶ 7). The Cachuma Project "includes the operation of Bradbury Dam and its associated water-transport and delivery structures on or near the Santa Ynez River. Bradbury Dam (‘the Dam’) is located about twenty-five miles northwest of Santa Barbara, California on the Santa Ynez River, and its installation formed the Cachuma Reservoir." (Id. at ¶ 7). The parties do not dispute that the BOR's operation of the Cachuma Project, the Dam, and the System is subject to the requirements of the ESA. (See Complaint at ¶ 11; Motion to Dismiss at 5).

In 2005, Hilton Creek, a tributary of the Santa Ynez River located downstream of the Dam, was designated a "critical habitat" for endangered Southern California steelhead ("steelhead"). (See Complaint at ¶¶ 6 & 10). Accordingly, pursuant to the ESA, NMFS prepared a BiOp in 2000 that requires the BOR to send water—through releases from the Cachuma Reservoir—into Hilton Creek in order to support the steelhead. (See Complaint at ¶ 11; Motion to Dismiss at 5–6). The BiOp also contains an ITS, which describes the amount of anticipated "take" of steelhead associated with the operation of the Cachuma Project. (See Complaint at ¶ 12; Motion to Dismiss at 6). Plaintiff alleges that in the BiOp, "NMFS determined that the project would result in incidental take of Southern California steelhead and issued an ITS anticipating a limited amount of take ... wherein the only anticipated mortalities are associated with migrant trapping activities." (See Complaint at ¶ 48). The only mortalities authorized under the ITS are "one (1) adult unintentional mortality and four (4) juvenile mortalities associated with migrant trapping." (Id. at ¶ 56).

The ITS contains two "reasonable and prudent measures," among others, with which the BOR must comply to limit steelhead take. First, it must maintain flows into Hilton Creek at levels no lower than two cubic feet per second. Second, the steelhead must be rescued and relocated should the water release mechanisms fail. (See Complaint at ¶ 15; Motion to Dismiss at 6). In order to meet these obligations, the BOR operates the System with two electric-powered pumps and a permanent water supply line from Lake Cachuma to Hilton Creek. (See Motion to Dismiss, Exhibit ("Exh.B"), Draft Biological Assessment for the Operation and Maintenance of the Cachuma Project, November 2013 ("Draft BA") at 643³ ). Under normal hydrologic conditions, the water system is gravity-fed and does not rely on pumps. (See id. ). However, when the water levels in Lake Cachuma drop below 730 feet, the system relies on the two pumps to sustain the flows of water into Hilton Creek required by the ITS. (See Motion to Dismiss, Exh. C, Summary of Actions Subsequent to Re–Initiation of Consultation on Cachuma Project Operations in Relation to ESA Section 7(d) Limitations on Commitment of Resources ("7(d) Finding") at 1037).

In early 2013, water levels at Lake Cachuma dropped below 730 feet. (See id. ). Since then, the System has depended upon the two electric-powered pumps to provide the necessary flows to Hilton Creek. (See id. ). Plaintiff alleges that since March 2013, there have been at least 11 malfunctions with the System's pump infrastructure, "many of which have interrupted flows into Hilton Creek, and at least six (6) of which have resulted in a total of at least 393 fish mortalities." (Complaint at ¶ 59). Not only did this violate the BOR's take allowance, plaintiff alleges, but because the BOR failed to comply with the terms and conditions of the ITS—including maintaining adequate water flows and relocating stranded steelhead—it cannot benefit from the safe harbor from Section 9 liability that compliance with an ITS would otherwise provide. (See id. at ¶¶ 81–84).

On May 27, 2014, a little over a year after the various breakdowns of the System began, the "BOR requested reinitiation of [Section 7] consultation on the Cachuma Project." (Complaint at ¶ 49). According to plaintiff, the BOR failed "to immediately reinitiate consultation in response" to each ITS violation as required by regulation. (See id. at ¶ 90). Further, although it has reinitiated formal consultation, plaintiff alleges that the BOR has not reinitiated formal consultation "specifically address[ing] incidental take" of steelhead caused by infrastructure failures. (See id. at ¶ 49).

Plaintiff alleges that "[w]hile BOR initiated some repairs," several fixes require installation of an Emergency Backup Delivery System ("Emergency System"), which has yet to be implemented. (See Complaint at ¶¶ 71–74). "[U]ntil installation of the Emergency System is complete, multiple fixes to the [System] will not be completed and thus continued future take of Southern California steelhead remains imminent." (Id. at ¶ 74). Further, the "BOR has indicated that the Emergency System itself is temporary and that a Hilton Creek Permanent Backup System ("Permanent System") is required to ensure adequate and consistent flows into Hilton Creek." (Id. at ¶ 74). The Permanent System "is not yet developed and will not be implemented until approximately 2016." (Id. ).

LEGAL STANDARDS

I. MOTION TO DISMISS.

Defendants have moved to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) (" Rule 12(b)(1)"). (See Motion to Dismiss at 11). When ruling on a motion to dismiss for lack of subject matter jurisdiction, the court takes the allegations in the complaint as true. See, e.g., Bollard v. Cal. Province of the Soc'y of Jesus, 196 F.3d 940, 944–45 (9th Cir.1999). However, the court is not restricted to the face of the pleadings and "may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.1988), cert. denied, 489 U.S. 1052, 109 S.Ct. 1312, 103 L.Ed.2d 581 (1989). When such evidence is offered, the Rule 12(b)(1) motion becomes a factual instead of a facial one. See Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir.2004). "In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." (Id. ). "If the moving party converts the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." (Id. ) (internal quotation marks omitted).

If the extrinsic evidence produced is disputed, the court can weigh the evidence and determine the facts in order to satisfy itself that it has the power to hear the case. See Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987). In the absence of an evidentiary hearing, disputed facts relevant to subject matter jurisdiction are viewed in the light most favorable to...