Envtl. Prot. Info. Ctr. v. Van Atta

• Docket Number: Case No. 22-cv-03520-TLT
• Decision Date: 10 July 2023
• Citation: Envtl. Prot. Info. Ctr. v. Van Atta, 692 F.Supp.3d 879 (N.D. Cal. 2023)
• Parties: ENVIRONMENTAL PROTECTION INFORMATION CENTER, et al., Plaintiffs, v. Alicia VAN ATTA, et al., Defendants.
• Court: U.S. District Court — Northern District of California

692 F.Supp.3d 879

ENVIRONMENTAL PROTECTION INFORMATION CENTER, et al., Plaintiffs, v. Alicia VAN ATTA, et al., Defendants.

Case No. 22-cv-03520-TLT

United States District Court, N.D. California

Filed July 11, 2023

Signed July 10, 2023

Thomas Edgerton Wheeler, Environmental Protection Information Center, Arcata, CA, Peter M.K. Frost, Pro Hac Vice, Sangye Ince-Johannsen, Pro Hac Vice, Western Environmental Law Center, Eugene, OR, for Plaintiffs.

Hannah Elizabeth O'Keefe, John Brett Grosko, U.S. Department of Justice, Environment and Natural Resources Division, Washington, DC, for Defendants.

ORDER REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT

Re: ECF No. 37 & 41

TRINA L. THOMPSON, United States District Judge

I. INTRODUCTION

For decades, Tenayah Norris, her family, and members of the Yurok Tribe have enjoyed the presence of coho salmon in the Shasta River for personal, aesthetic, ancestral, and scientific purposes. See Plts.'s Mot. Summ. J., ECF No. 37, 12-13; Norris. Decl. ¶ 12. However, worsening conditions in the quantity and quality of the water in the Shasta River has changed Tenayah Norris's relationship with the coho salmon. Norris. Decl. ¶ 6, 7. Some of this aquatic change has occurred because of the diversion of water from the Shasta River, which has had a dramatic impact on the coho salmon species. Administrative Record ("AR") 15329.

Today, the population of adult coho salmon in the Shasta River is below the minimum number needed for the long-term survival of the species (or "depensation threshold"). AR 60, 2089. The decline of the coho salmon population is not new. In 1997, the National Marine Fisheries Service listed the Southern Oregon / Northern California Coast coho salmon as a threatened species under the Endangered Species Act and designated critical habitat for the species in 1999. Threatened Status for Coho Salmon, 62 Fed. Reg. 24,588-01 (May 6, 1997); Designated Critical Habitat, Coho Salmon, 64 Fed Reg. 24,049 (May 5, 1999). Since 2012, the number of adult coho returning to the counting station near the mouth of the Shasta has remained below the depensation threshold.

In 2021, the National Marine Fisheries Services issued permits to fourteen private landowners authorizing the incidental take of coho salmon in the Shasta River in exchange for their compliance with activities that would benefit the species. Issuance of 14 Enhancement of Survival Permits, 86 Fed. Reg. 43,629, 46,630 (Aug. 10, 2021). The permits have 20-year terms and are transferable. AR 817, 1032; 50 C.F.R. § 222.305(a)(3).

The issues in this case concern whether the National Marine Fisheries Services properly assessed the impact permitting the incidental take of coho salmon would have on the species. This Court must address whether the interests of the permittees, including private entities with commercial interests in the Shasta River¹, were given outsized weight by the National Marine Fisheries Service in light of the statutorily proscribed procedures including whether (1) the National Marine Fisheries Service applied the Safe Harbor Policy lawfully, (2) the biological opinion is subject to vacatur, and (3) National Marine Fisheries Service should have prepared an Environmental Impact Statement.

Moreover, this case is about the shared interest of all the parties in preserving the coho salmon species, and the ways in which the various communities benefiting from the Shasta River can meet this moment and collaboratively address the issue of water use in California.

II. PROCEDURAL HISTORY

Plaintiffs Environmental Protection Information Center ("EPIC") and Friends of the Shasta River brought the present action challenging the administrative process that led to the issuance of permits authorizing the "take" of SONCC coho salmon. Complaint, ECF No. 1. The permits were granted by Defendant National Marine Fisheries Service under the United States Department of Commerce National Oceanic and Atmospheric Administration by way of their employees. Id. Plaintiffs and Defendants now cross-move for summary judgment. See ECF Nos. 37, 41, 42, 45.

III. FACTUAL BACKGROUND

A. Current State of the Coho Salmon in the Shasta River

In 1997 the National Marine Fisheries Service ("NMFS") listed the Southern Oregon / Northern California Coast coho salmon as a threatened species under the Endangered Species Act ("ESA"). 62 Fed. Reg. at 24,588-01 (May 6, 1997). NMFS designated critical habitat for the species in 1999. 64 Fed Reg. at 24,049 (May 5, 1999).

The Shasta River population of coho salmon is one of forty populations of coho that make up the evolutionarily significant unit ("ESU") of coho in the Southern Oregon / Northern California Coast (SONCC) region. This region extends from the Elk River in Oregon south to the Mattole River in California (including the Shasta River). The Shasta River Coho population is a demographically independent, "core" population within the ESU. Administrative Record ("AR") 76. As a core population, coho in the Shasta River are among the "independent populations [that] must be at low risk of extinction to achieve recovery" for the SONCC ESU as a whole. Id.

SONCC coho salmon have experienced a serious decline in abundance, and long-term population trends suggest a negative growth rate. AR 102. Human-induced factors have reduced historical populations and degraded habitat, which in turn has reduced the ESU's resilience to natural occurring events, such as droughts, floods, and variable ocean conditions. Id.

The minimum number of adult coho in the Shasta River needed for survival of a population (or "depensation threshold") is 144. AR 60, 2089. Since 2012, the number of adult coho returning to the counting station near the mouth of the Shasta has remained below the depensation threshold: 115 adult coho returned in 2012, and 39 adult coho returned in 2018. AR 77. By January 2020, 62 adults had returned. AR 39037.

B. Klamath Riverkeeper v. Montague Water Conservation District

On May 17, 2012, Klamath Riverkeeper, a nonprofit organization, filed suit against the Montague Water Conservation District ("Montague"). Klamath Riverkeeper v. Montague Water Conservation District, Case No. 2:12-cv-1330, Dkt No. 1 (E.D. Cal. May 17, 2012). The complaint sought relief for the alleged substantial unlawful take of the SONCC coho salmon by way of Montague's operation and maintenance of Dwinnell Dam, Lake Shastina, and its water diversions structures on the Shasta River, Parks Creek, and Little Shasta River. Id. Klamath Riverkeeper also alleged that Montague had failed to initiate consultation with NMFS under the ESA. Id. The Karuk Tribe also filed a complaint against Montague with similar allegations which was consolidated with the Riverkeeper case. AR 2552; see Karuk Tribe v. Montague Water Conservation District, Case No. 2:12-cv-02095 (E.D. Cal. Aug. 9, 2012). The parties settled the case on July 12, 2013. Minute Order, Klamath Riverkeeper v. Montague Water Conservation District, Case No. 2:12-cv-1330, Dkt. No. 31 (E.D. Cal.).

Prior to settlement, on February 11, 2013, Montague, amongst other entities and private landowners, commenced the administrative process with NMFS for a safe harbor agreement associated with SONCC coho salmon. AR 8.

Once settlement was reach, under the terms of the agreement, Montague agreed to file for a Clean Water Act permit for the implementation of the Conservation and Habitat Restoration and Enhancement Project (CHERP). AR 2552. The CHERP includes development of a long-term water conservation and flow enhancement program to improve conditions for coho salmon downstream of Dwinnell Dam. AR 68. Under the CHERP, Montague proposes to increase instream environmental releases by an average of 4,400 acre-feet below Dwinnell Dam as a conservation measure to improve conditions for coho salmon using water conserved through lining of up to 8.4 miles of its main irrigation canal. NMFS asserts that "CHERP is an independently required consultation separate from but complementary to the Agreement." AR 161.

C. Template Safe Harbor Agreement for Conservation of Coho Salmon in the Shasta River & Site Plan Agreements

In 1999, National Marine Fisheries Services and the U.S. Fish and Wildlife Service ("FWS") adopted a "Safe Harbor" Policy. Announcement of Final Safe Harbor Policy, 64 Fed. Reg. 32,717 (June 17, 1999). The Policy states that some ESA-listed species "occur exclusively, or to a large extent, on non-Federally owned property," and agencies wanted to "provide[ ] incentives for private and other non-Federal property owners to restore, enhance, or maintain habitats for listed species." Id. The coho salmon are such a species. AR 102.

The Endangered Species Act broadly prohibits the "take" of species that are listed as endangered or threatened. 16 U.S.C. §§ 1533(d), 1538(a)(1)(B); 50 C.F.R. § 223.203; see also 16 U.S.C. §§ 1532(6), 1532(20). "Take" is defined to mean "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or attempt to engage in any such conduct." 16 U.S.C. § 1532(19). Though, the ESA authorizes NMFS to permit take under certain circumstances, including, "to enhance the propagation or survival of the affected species." 16 U.S.C. § 1539(a)(1)(A).

Section 10(a)(1)(A) of the ESA establishes a framework for issuing permits for research activities and "Enhancement of Survival" permits ("Permits") under the Safe Harbor Policy. 64 Fed. Reg. 32,717 (June 17, 1999). The Policy provides that if a landowner chooses to adopt "voluntary conservation measures" on its lands that provide a "net conservation benefit" for a listed species, the landowner may enter a Safe Harbor Agreement, and would not be liable for take of the species if it "later become[s] more numerous as a result of the property owner[']s actions." Id. at 32,722.

The agency and landowner must agree to a baseline as to the number of individual members of the species or their range on the private land when the landowner enters into the...