Coal. for a Sustainable Delta v. Fed. Emergency Mgmt. Agency

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
• Parties: COALITION FOR A SUSTAINABLE DELTA and KERN COUNTY WATER AGENCY, Plaintiff, v. FEDERAL EMERGENCY MANAGEMENT AGENCY and WILLIAM CRAIG FUGATE, in his official capacity as Administrator of the Federal Emergency Management Agency, Defendants.
• Docket Number: 1:09-cv-02024 OWW GSA
• Decision Date: 19 August 2011

COALITION FOR A SUSTAINABLE DELTA and
KERN COUNTY WATER AGENCY, Plaintiff,
v.
FEDERAL EMERGENCY MANAGEMENT AGENCY
and WILLIAM CRAIG FUGATE, in his official capacity as
Administrator of the Federal Emergency Management Agency, Defendants.

1:09-cv-02024 OWW GSA

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dated August 19, 2011

MEMORANDUM DECISION RE
FEDERAL DEFENDANTS'
MOTION FOR PARTIAL
SUMMARY JUDGMENT (DOC.
121)

I. INTRODUCTION

This case is before the Court on the Federal Defendant's Motion for Partial Summary Judgment. This case involves a challenge to the Federal Emergency Management Agency's ("FEMA") administration of the National Flood Insurance Program ("NFIP")in the Sacramento-San Joaquin Delta ("Delta").¹ Plaintiffs, the Coalition for a Sustainable Delta and Kern County Water Agency,

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allege in their first claim for relief that FEMA's ongoing implementation of the NFIP, by, among other things, certifying community eligibility for the NFIP, monitoring community compliance and enforcement with FEMA's criteria for eligibility, and revising flood maps, provides incentives for development within the Delta that might otherwise not occur and therefore requires consultation under Section 7 of the ESA. Third Amended Complaint ("TAG"), Doc. 118, at ¶¶ 82-83.²

Plaintiffs claim that residential, commercial, and agricultural development in the Delta adversely affects four listed species: Sacramento River winter-run Chinook salmon, the Central Valley spring-run Chinook salmon, the Central Valley Steelhead, and the Delta smelt. Plaintiffs assert that FEMA's actions under the NFIP cause "more development in the flood-prone areas of the Delta," which harms listed species. Plaintiffs' challenges to FEMA actions under the NFIP include: (1) issuance, administration, and enforcement of minimum flood plain management criteria; (2) issuance of Letters of Map Changes ("LOMGs"); and (3) providing flood insurance to property owners within participating communities. Plaintiffs specifically identify 74 LOMCs and two LOMC "Validations" allegedly issued in violation of

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section 7(a)(2). McArdle Decl., Doc. 123-1, Ex. 1 at 18-26; Norton Decl., Doc. 124, at ¶ 9 & Ex. C.

Plaintiffs complain that FEMA's floodplain management criteria: "Are designed to reduce threats to lives and to minimize damages to structures and water systems, and are not designed to protect aquatic habitat, threatened or endangered species, or other environmental values." TAC at ¶ 73. This includes FEMA-conducted "community visits" and "technical assistance to local officials" to ensure participating communities adopt and enforce land management ordinances, all of which entails FEMA "discretion" in developing and administering the criteria, requiring section 7(a)(2) consultation.

Plaintiffs assert this process encourages third parties to use fill to elevate properties, or build levees to provide flood protection to induce FEMA to remove the property from the SFHA, relieving property owners of the statutory obligation to purchase flood insurance. TAC at ¶¶ 70-72. These floodplain mapping activities are said to "encourage" these harmful actions, requiring section 7(a)(2) consultation. Id.

Plaintiffs further complain "FEMA has issued hundreds of new individual flood insurance policies for the new structures within floodplains utilized by and relied upon by the Listed Species without the benefit of consultation in violation of section 7(a)(2).

FEMA and its director Janet Napolitano (collectively,

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"Federal Defendants" or "FEMA") move for partial summary judgment on the specific grounds that: (1) Plaintiffs' Challenge to FEMA's Minimum Floodplain Management Criteria is barred by the statute of limitations; (2) FEMA's alleged authority to amend the NFIP regulations does not trigger a duty to consult under the ESA; (3) FEMA's procedure of issuing LOMCs does not trigger a duty to consult because that process has no effect on listed species; (4) Plaintiff's challenge to certain LOMCs is precluded because Title 42 U.S.C. § 4104 sets forth the exclusive mechanism for challenging LOMCs; and (5) FEMA's issuance of flood insurance is a non-discretionary act that is not subject to Section 7(a)(2) under National Association of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 669 (2007). Doc. 122. Plaintiffs oppose. Doc. 129. FEMA replied. Doc. 138. The matter came on for hearing in Courtroom 3 on April 7, 2011.

II. EVIDENTIARY DISPUTES

Plaintiffs have filed several requests for judicial notice in connection with their opposition. Docs. 131, 142, 144. All but one is a public record downloaded from a public agency's official website. These documents are subject to judicial notice under Federal Rule of Evidence 201. See Cachil Dehe Band of Wintun Indians of the Colusa Indian Comm'ty v. California, 547 F.3d 962, 968-69 n.4 (9th Cir. 2008) (taking judicial notice of gaming compacts located on official California Gambling Control Commission website); Santa Monica Food Not Bombs v. City of Santa

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Monica, 450 F.3d 1022, 1025 n.2 (9th Cir. 2006) (taking judicial notice of "public records" that "can be accessed at Santa Monica's official website"). However, judicially noticed documents may be considered only for limited purposes. Public records "are subject to judicial notice under [Rule] 201 to prove their existence and content, but not for the truth of the matters asserted therein. This means that factual information asserted in these document[s] or the meeting cannot be used to create or resolve disputed issues of material fact." Coalition for a Sustainable Delta v. McCamman, 725 F. Supp. 2d 1162, 1183-84 (E.D. Cal. 2010) (emphasis added).

FEMA asserts that Plaintiffs are attempting to use the documents for improper purposes. FEMA also raises relevance objections to some of the documents.³

1. Documents A, B, L, N, Q & R.

• Exhibit A - Excerpts from FEMA, Region 10, Floodplain Habitat Assessment and Mitigation, Regional Guidance (Jan. 2010), http://www.fema.gov/pdf/about/regions/regionx/draft_mitigation——guide.pdf.

• Exhibit B - Excerpts from the Nat'1 Marine Fisheries Serv.,

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Northwest Region, Endangered Species Act Section 7 Formal Consultation and Magnuson-Stevens Fishery Conservation and Management Act Essential Fish Habitat Consultation for the on-going National Flood Insurance Program carried out in the Puget Sound area in Washington State (Sept. 22, 2008) ("Puget Sound BiOp"), https://pcts.nmfs.noaa.gov/pls/pcts-pub/sxn7.pcts_upload.download?p_file=F3181/200600472.

• Exhibit L - Excerpts from FEMA Region 10, Floodplain Management Guidebook (5th ed. Mar. 2009), http://www.fema.gov/library/viewRecord.do?fromSearch=fromsearch &id=3574.

• Exhibit N - Excerpts from FEMA Region 10, Community Checklist for the National Flood Insurance Program and the Endangered Species Act (July 2010), http://www.fema.gov/pdf/about/regions/regionx/Biological_Opinio n_Checklist8_12._10.pdf.

• Exhibit Q - FEMA & NMFS, Frequently Asked Questions, Demystifying National Flood Insurance Program Alignment with the Endangered Species Act, Edmonds, WA March 1 & 2, 2011.

• Exhibit R - FEMA, Overview of Compliance Options, ESA and the NFIP, Implementing a Salmon-Friendly Program - FEMA Region 10 Regional Workshop.

FEMA argues that these documents, which pertain to FEMA Region 10's implementation of the NFIP in and around Puget Sound are not relevant to FEMA Region 9's implementation of the NFIP in the Sacramento San Joaquin Delta. Rule 401 defines "relevant evidence" liberally to include "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." (Emphasis added). Plaintiffs offer these documents to demonstrate that NMFS has determined that implementation of the NFIP in the Puget Sound region jeopardizes the continued existence of listed salmonid species in that region. This satisfies the relevance standard, as any differences in indigenous conditions in Puget Sound go to weight

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not the admissibility of the information. FEMA's relevance objections are OVERRULED.

Plaintiffs offer these documents for the truth of the matters asserted therein, to prove that a dispute exists over whether FEMA's administration of the NFIP may affect listed species. This is an impermissible use of judicially noticed documents and the objections on this ground are SUSTAINED.

Documents A, L, N, Q, & R, all of which were authored by FEMA, are admissible under Federal Rule of Evidence 801(d)(2)(D), which permits the admission of statements offered against a party that are the statement of the party or the party's agent or servant, "concerning a matter within the scope of the agency or employment, made during the existence of the relationship." See United States v. Bonds, 608 F. 3d 495, 503 (9th Cir. 2010). Each of these documents is an official FEMA publication concerning matters within FEMA's scope of operations.

Exhibit B, a biological opinion prepared by NMFS, is admissible under Federal Rule of Evidence 803(8), which provides an exception to the hearsay rule:

(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency,

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