Ctr. for Envtl. Sci. v. Cowin

• Decision Date: 14 September 2015
• Docket Number: 1:15-cv-00884 LJO BAM
• Court: U.S. District Court — Eastern District of California
• Parties: CENTER FOR ENVIRONMENTAL SCIENCE, ACCURACY & RELIABILITY, a California public interest organization, Plaintiff, v. MARK W. COWIN, In his Official Capacity As Director Of CALIFORNIA DEPARTMENT OF WATER RESOURCES; SALLY JEWELL, Secretary, U.S. Department of the Interior, in her official capacity; DAN ASHE, Director, U.S. Fish and Wildlife Service, in his official capacity; and UNITED STATES FISH AND WILDLIFE SERVICE Defendants.

CENTER FOR ENVIRONMENTAL SCIENCE, ACCURACY & RELIABILITY,a California public interest organization, Plaintiff, v. MARK W. COWIN, In his Official Capacity As Director Of CALIFORNIA DEPARTMENT OF WATER RESOURCES;SALLY JEWELL, Secretary, U.S. Department of the Interior, in her official capacity;DAN ASHE, Director, U.S. Fish and Wildlife Service, in his official capacity;and UNITED STATES FISH AND WILDLIFE SERVICE Defendants.

1:15-cv-00884 LJO BAM

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

September 14, 2015

MEMORANDUM DECISION AND ORDER RE: DEFENDANTS' MOTION TO DISMISS (Doc. 25)

I. INTRODUCTION

Plaintiff Center for Environmental Science, Accuracy & Reliability ("CESAR") seeks declaratory and injunctive relief against the construction and operation of an emergency drought salinity barrier ("Salinity Barrier") by the California Department of Water Resources ("DWR"). Compl. Doc. 1. Plaintiff also seeks to require the U.S. Fish and Wildlife Service ("FWS") to reinitiate consultation of the 2008 Biological Opinion on the Coordinated Operations of the Central Valley Project and State Water Project ("2008 BiOp"). Id. Plaintiff claims that installation and operation of the Salinity Barrier violates the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531, et seq. Id.

II. BACKGROUND OF THE CASE

The factual background of this case was discussed in detail in this Court's Order DenyingPlaintiff's Motion for a Temporary Restraining Order ("TRO Order"), Doc 22. Briefly, this case concerns the delta smelt, a species protected by the ESA that is found in the Sacramento-San Joaquin River Delta ("the Delta"). Compl. ¶ 22. The Delta is designated as critical habitat for the delta smelt. Id.

In 2014, DWR proposed to build three different rock barriers in the Delta in response to drought conditions. Id. at ¶ 23. The stated purpose of barriers was to deflect the tidal push of salt water into the Delta. Id. Plaintiff threatened to sue to prevent these barriers from being erected, and DWR withdrew its proposal to build them. Id. In 2015, DWR conducted a study of the potential environmental impacts of the three barriers. Id. at ¶ 24. At the same time, it applied for a Clean Water Act ("CWA") permit from the Army Corps of Engineers ("Army Corps"). Id.

On April 17, 2015, DWR withdrew its proposal to build three barriers and requested approval to build a single barrier. Id. at ¶ 25. On April 29, 2015, The Army Corps notified the public of the change. Id. DWR approved the project on May 4, 2015. Id. Pursuant to the ESA, the Army Corps conducted an emergency consultation with the FWS regarding the Salinity Barrier's potential to alter conditions discussed in the 2008 BiOp. Id. On May 5, 2015, the Army Corps issued the CWA permit. Id. Construction began on May 7, 2015. Id. At no time did DWR or any other party obtain an Incidental Take Permit or reinitiate formal consultation regarding the 2008 BiOp. Id. at ¶ 27. Plaintiff alleges that construction of the barrier increases the salinity of certain areas of the Delta, causing irreparable harm to the delta smelt. Id. at ¶ 29.

Plaintiff filed suit in the Superior Court of California for Sacramento County on May 6, 2015, Doc. 27-4, and immediately applied ex parte for a temporary restraining order to halt construction of the Salinity Barrier. Doc. 27-5. Hon. Christopher Krueger held a hearing and issued a minute order denying the request for a temporary restraining order on May 15, 2015. Doc. 27-9. CESAR filed an amended complaint in that case on June 22, 2015. Doc. 27-7.

On June 11, 2015, Plaintiff filed its complaint in this Court against Mark Cowin, director of DWR, Sally Jewell, Secretary of the U.S. Department of the Interior, FWS Director Dan Ashe, and FWSitself. Plaintiff argues that construction and operation of the Salinity Barrier violates Section 9 of the ESA because it causes the unlawful "take" of delta smelt (Count I). Compl. ¶¶ 40-42. Plaintiff also argues that FWS violated ESA Section 7 by failing to initiate or reinitiate formal biological consultation on the 2008 BiOp (Counts II and IV). Compl. ¶¶ 45-47, 53-57.¹,²

Plaintiff also moved for a temporary restraining order in this Court, requesting that Defendants be "temporarily restrained from continued construction and operation of the [Salinity Barrier] in the Bay-Delta . . ." Doc. 2. After reviewing the substantial amount of evidence placed in the record, the Court denied Plaintiff's request on the basis that it was moot (the barrier had already been constructed) and because Plaintiff failed to demonstrate a reasonably certain threat of imminent harm to the delta smelt. TRO Order at 13-15.

Now before the Court is Defendant Mark Cowin's Motion to Dismiss, Doc. 25. Defendant argues that the Court does not have jurisdiction over the case because Plaintiff did not comply with notice requirements of the ESA and, in the alternative, that the case should be dismissed under the Colorado River Abstention Doctrine. Mem. of P. & A. in Supp. of Mot. to Dismiss ("MTD"), Doc. 26. Plaintiff filed arguments in opposition on August 13, 2015. Opp'n of Pl. to Mot. to Dismiss ("Opposition"), Doc. 28. Defendant replied on August 20, 2015. "Reply", Doc. 34.³ On August 26, 2015, Plaintiff sought leave to file an attached surreply. "Surreply", Doc. 35. The Court found it appropriate to rule on the motion without oral argument. See Doc. 32; L.R. 230(g).

III. STANDARD OF DECISION

Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of an action for "lack of subject-matter jurisdiction." Faced with a Rule 12(b)(1) motion, a plaintiff bears the burden of proving the existence of the court's subject matter jurisdiction. Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996). A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears. Gen. Atomic Co. v. United Nuclear Corp., 655 F.2d 968, 968-69 (9th Cir. 1981). A challenge to subject matter jurisdiction may be facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). As explained in Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1038 (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.

Because the Court must consider documents outside the pleadings to address Defendant's motion, the Court will treat it as speaking motion. See Safe Air, 373 F.3d at 1039 (allowing the court to consider evidence outside the complaint without converting the motion into a summary judgment motion).

In a speaking motion, "[t]he court need not presume the truthfulness of the plaintiff's allegations." Safe Air, 373 F.3d at 1039. The Court "is not restricted to the face of the pleadings, but 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). "Once the moving party has converted 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." Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa Cnty., 343 F.3d 1036, 1040 n.2 (9th Cir. 2003).

IV. ANALYSIS

Defendant argues that this Court does not have subject matter jurisdiction because Plaintiff did not provide a written sixty-day notice as required by the ESA. Reply at 2. First, Defendant argues that there is no evidence that Plaintiff provided notice to either the Secretary of the Interior or the Secretaryof Commerce. Id. Next, Defendant argues that letters do not properly identify the activity being challenged. Id. at 3-6. Plaintiff argues that the 2014 Letters were properly sent to the Director of the Fish and Wildlife Service and that they addressed the suite of projects that was eventually narrowed down to the single Salinity Barrier.⁴ Surreply, 2.

The ESA provides that "no action may be commenced . . . prior to sixty days after written notice of the violation has been given to the Secretary,⁵ and to any alleged violator of any such provision or regulation." 16 U.S.C.A. § 1540(g)(2)(A). "The notice requirement provides agencies with 'an opportunity to review their actions and take corrective measures if warranted.'" Alliance for the Wild Rockies v. U.S. Dep't of Agric., 772 F.3d 592, 601 (9th Cir. 2014) (quoting Sw. Ctr. for Biological Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515, 520 (9th Cir. 1998)). Accordingly, it is a "mandatory condition [ ] precedent to commencing suit" under the ESA. Id. (quoting Hallstrom v. Tillamook Cnty., 493 U.S. 20, 31 (1989)). "A failure to strictly comply with the notice requirement acts as an absolute bar to bringing suit under the ESA." Sw. Ctr. for Biological Diversity, 143 F.3d at 520. A district court may not disregard such a notice requirement at its discretion. See Hallstrom, 493 U.S. 20 at 31.

Plaintiff provides evidence that its notice letters were sent to the Director of FWS, but not the Secretary of the Interior. Plaintiff argues that the Secretary of the Interior has delegated much of its authority to regulate the ESA to FWS. Surreply at 3-4. On this basis, Plaintiff argues, the FWS Director was the proper official to notify. Id. at 4. In support of this argument, Plaintiff points to a DOI Department Manual⁶ that states that a "representative being delegated that authority has the sameresponsibilities as the Secretary and must adhere to the same polices standards and programs." Surreply at 2. Plaintiff, however, does not provide any legal authority supporting its theory that the Secretary can or did delegate matters of...