Coal. For A Sustainable Delta v. Mccamman

• Decision Date: 21 July 2010
• Docket Number: No. 1:08-cv-00397 OWW GSA.,1:08-cv-00397 OWW GSA.
• Citation: 725 F.Supp.2d 1162
• Parties: COALITION FOR A SUSTAINABLE DELTA, et al., Plaintiffs, v. JOHN McCAMMAN, in his official capacity as the Director of the California Department of Fish and Game, Defendant, Central Delta Water Agency, et al., Defendant-Intervenors, California Sportfishing Protection Alliance, et al., Defendant-Intervenors.
• Court: U.S. District Court — Eastern District of California

725 F.Supp.2d 1162

COALITION FOR A SUSTAINABLE DELTA, et al., Plaintiffs,

v. JOHN McCAMMAN, in his official capacity as the Director of the California Department of Fish and Game, Defendant,Central Delta Water Agency, et al., Defendant-Intervenors,California Sportfishing Protection Alliance, et al., Defendant-Intervenors.

No. 1:08-cv-00397 OWW GSA.

United States District Court,E.D. California.

July 21, 2010.

COPYRIGHT MATERIAL OMITTED.

Paul S. Weiland, Nossaman LLP, Irvine, CA, Benjamin Zachary Rubin, Nossaman Guthner Knox and Elliott LLP, Irvine, CA, Henry S. Weinstock, Nossaman LLP, Los Angeles, CA, for Plaintiffs.

Clifford Thomas Lee, California Attorney General's Office, San Francisco, CA, Daniel Mark Fuchs, Attorney General for the State of California, Sacramento, CA, Deborah A. Wordham, California Attorney General's Office, Sacramento, CA, for Defendant.

Daniel Allen McDaniel, Nomellini Grilli & McDaniel Professional Law Corporation, Stockton, CA, John Henry Herrick, Attorney at Law, Stockton, CA, Michael Bruce Jackson, Attorney at Law, Quincy, CA, for Defendant-Intervenors.

MEMORANDUM DECISION RE PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT (DOC. 114)

OLIVER W. WANGER, District Judge.

I. INTRODUCTION

This case concerns enforcement by the California Department of Fish and Game (“CDFG”), through its Director John McCamman, (“State Defendant”) of state sportfishing regulations designed to protect striped bass population in the Sacramento-San Joaquin Delta. Plaintiffs, the Coalition For a Sustainable Delta, et al., (“Plaintiffs” or “the Coalition”), allege that State Defendants' enforcement of these regulations violates section 9 of the Endangered Species Act (“ESA” or “Section 9”), because striped bass prey on and take various ESA-listed species.

Plaintiffs move for summary judgment/adjudication that: (1) Plaintiff Dee Dillon has standing; (2) State Defendant's enforcement of the striped bass sportfishing regulations violates Section 9; and (3) the Central Valley Improvement Act (“CVPIA”), Pub. L. 102-575, 106 Stat. 4600 (1992), does not provide a legitimate affirmative defense in this case. ¹ Doc. 114. State Defendant and Defendant Intervenors Central Delta Water Agency, et al. (“Central Delta”) oppose Plaintiffs' motion. Docs. 123 & 125. Central Delta's opposition focuses primarily on the CVPIA affirmative defense. Plaintiffs filed separate replies to each of the oppositions. Docs. 143 & 144. ²

State Defendant originally cross-moved for summary adjudication that Dee Dillon does not have standing. Doc. 113. After additional discovery was completed, State Defendant withdrew its motion, recognizing that “Mr. Dillon's most recent declaration and deposition testimony create a potential triable issue of material fact as to whether Mr. Dillon has been injured by the State Defendant's enforcement of the striped bass regulations.” Doc. 162 at 3. State Defendant did not withdraw its opposition to Plaintiffs' motion for summary adjudication as to Mr. Dillon's standing. See id.

The matter came on for hearing June 23, 2010, in Courtroom 3(OWW).

II. STANDARD OF DECISION

Summary judgment is appropriate when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A party moving for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted).

Where the movant has the burden of proof on an issue at trial, it must “affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007); see also S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir.2003) (noting that a party moving for summary judgment on claim on which it has the burden at trial “must establish beyond controversy every essential element” of the claim) (internal quotation marks omitted). With respect to an issue as to which the non- moving party has the burden of proof, the movant “can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party's case.” Soremekun, 509 F.3d at 984.

When a motion for summary judgment is properly made and supported, the non-movant cannot defeat the motion by resting upon the allegations or denials of its own pleading, rather the “non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, ‘specific facts showing that there is a genuine issue for trial.’ ” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment.” Id.

To defeat a motion for summary judgment, the nonmoving party must show there exists a genuine dispute (or issue) of material fact. A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. “[S]ummary judgment will not lie if [a] dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248, 106 S.Ct. 2505. In ruling on a motion for summary judgment, the district court does not make credibility determinations; rather, the “evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255, 106 S.Ct. 2505.

III. ANALYSIS

A. Section 9 Liability Standard.

Resolution of many of the disputes in these motions turns on whether liability under ESA § 9 is attributable to State Defendant's actions. It is undisputed that the Central Valley spring-run Chinook salmon is listed as a threatened species, 64 Fed. Reg. 50,394-50,415; 70 Fed. Reg. 37,160-37,204, and that the Sacramento River winter-run Chinook salmon is listed as an endangered species, 59 Fed. Reg. 440. ³

ESA § 9 prohibits the “take” of any species listed as endangered. 16 U.S.C. § 1538(a)(1)(B). The Secretary of the Interior, through regulation, has applied the “take” prohibition to species that are listed as threatened. 50 C.F.R. § 17.31(a). “Take” is defined to include “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct.” 16 U.S.C. § 1532(19).

“Harm” is defined by regulation to include:

an act which actually kills or injures wildlife. Such act may include habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.

50 C.F.R. § 17.3. Under this regulation, a person can “harm” either directly, by actually killing or injuring a protected animal, or by modifying the species' habitat to the point of significantly impairing the species' essential behavioral patterns where that impairment results in the actual death or injury of endangered animals.

“Direct” harm involves the direct application of force to a member of a protected species, resulting in actual death of or injury to the animal. See Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 694, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995).

Habitat modification may also constitute harm “where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” 50 C.F.R. § 17.3 (emphasis added) ⁴ ; see also Sweet Home, 515 U.S. at 697, 115 S.Ct. 2407 (upholding 50 C.F.R. § 17.3 and holding that the ESA's definition of harm “naturally encompasses habitat modification that results in actual injury or death to members of an endangered or threatened species”); Defenders of Wildlife v. Bernal, 204 F.3d, 920, 924-25 (9th Cir.2000) (affirming denial of injunction against construction on property containing potential habitat for a species of pygmy owl and confirming that habitat modification does not constitute harm unless it “actually kills or injures wildlife”); see also Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1065-66 (9th Cir.1996) (harm through habitat modification can be projected into the future only so long as the habitat modification will cause actual killing or injury of members of a protected species).

Either form of take by harm (direct harm or harm by habitat modification) may include acts of a third party that indirectly bring about a take by causing another to effect a take. 16 U.S.C. § 1538(g) (making it “unlawful for any person subject to the jurisdiction of the United States to attempt to commit, solicit another to commit, or cause to be committed, any offense defined in this section”). A third party government actor ⁵ was found liable for indirectly causing take by direct harm in Strahan v. Coxe, 127 F.3d 155, 163 (1st Cir.1997), which concerned a challenge to Massachusetts' authorization of certain types of fixed fishing gear known to entangle Northern Right whales. 127 F.3d at 158-59. The district court determined that the ESA “appl[ied] to acts by third parties that allow or authorize acts that exact a taking and that, but for the permitting process, could not take place.” Id. at 163. The First Circuit found that the ESA “not only prohibits the acts of those parties that directly exact the taking, but also bans those acts of a third party that bring about the acts exacting a taking.” Id. at 163. Specifically, “a governmental third party pursuant to whose...