Friends Of The River v. Nat'l Marine Fisheries Serv. .

• Decision Date: 08 July 2010
• Docket Number: No. Civ. S-06-2845 LKK/JFM.,Civ. S-06-2845 LKK/JFM.
• Citation: 723 F.Supp.2d 1247
• Court: U.S. District Court — Eastern District of California
• Parties: SOUTH YUBA RIVER CITIZENS LEAGUE and Friends of the River, Plaintiffs, v. NATIONAL MARINE FISHERIES SERVICE, et al., Defendants.

723 F.Supp.2d 1247

SOUTH YUBA RIVER CITIZENS LEAGUE and Friends of the River, Plaintiffs,

v.NATIONAL MARINE FISHERIES SERVICE, et al., Defendants.

No. Civ. S-06-2845 LKK/JFM.

United States District Court,E.D. California.

July 8, 2010.

COPYRIGHT MATERIAL OMITTED.

Brian Orion, Christopher Alan Sproul, Environmental Advocates, San Francisco, CA, Patricia Lynn Weisselberg, Law Offices of Patricia Weisselberg, Mill Valley, CA, for Plaintiffs.

Bradley H. Oliphant, Lawson Fite, US Department of Justice, Washington, DC, Yoshinori H. T. Himel, United States Attorney's Office, Sacramento, CA, for Defendants.

ORDER

LAWRENCE K. KARLTON, Senior District Judge.

The remaining claims in this suit concern two dams and related water diversions on the Yuba River. The dams are operated by the Army Corps of Engineers (“Corps”). The river is home to populations of Chinook salmon, steelhead, and green sturgeon listed as threatened under the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq. In 2007, the National Marine Fisheries Service (“NMFS”) issued a Biological Opinion (“BiOp”) concluding that the Corps' future operations would not violate the ESA. Plaintiffs, two environmental groups, claim that NMFS's BiOp is arbitrary and capricious and that the Corps' operations are causing take of protected salmon and steelhead. ¹ Remaining defendants in this case are NMFS, the Corps, and various federal officials, collectively the “Federal Defendants.”

Pending before the court are four motions. In one, plaintiffs seek summary judgment solely on the issue of plaintiffs' standing to bring their claims. Separately, plaintiffs and Federal Defendants have filed cross motions for summary judgment as to liability. Finally, plaintiffs seek a preliminary injunction pending final resolution of this suit.

For the reasons stated below, the court concludes that plaintiffs have standing and that the BiOp is arbitrary and capricious. Plaintiffs' claim regarding take raises two theories of liability. The court grants summary judgment to defendants as to the first and requests supplemental briefing as to the second. The court further requests supplemental briefing as to plaintiffs' motion for a preliminary injunction, regarding mootness and the effect of the Supreme Court's intervening decision in Monsanto Co. v. Geertson Seed Farms, --- U.S. ----, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010).

I. Background

A. The Endangered Species Act

As recently reiterated by the Ninth Circuit, the ESA may be “ ‘the most comprehensive legislation for the preservation of endangered species ever enacted by any nation’ ” and “reflects ‘a conscious decision by Congress to give endangered species priority over the ‘primary missions' of federal agencies.’ ” Cal. ex rel. Lockyer v. United States Dep't of Agric., 575 F.3d 999, 1018 (9th Cir.2009) (quoting Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 185, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978)).

The ESA's protection is triggered when species are “listed” as “threatened” or “endangered” by the applicable federal agency-in this suit, NMFS. ESA § 4(c); 16 U.S.C. § 1533(c); 50 C.F.R. § 402.01. ² “Species,” for purposes of the ESA, means not only taxonomic species, but also “any subspecies ... or distinct population segment of any species ... which interbreeds when mature.” ESA § 3(16); 16 U.S.C. § 1532(16). In the particular context of salmon, NMFS treats a population as a “species” if it is an “evolutionar[il]y significant unit,” (“ESU”) which is a population that is “substantially reproductively isolated from other conspecific population units; and [that] ... represent[s] an important component in the evolutionary legacy of the species.” Trout Unlimited v. Lohn, 559 F.3d 946, 950 (9th Cir.2009) (quoting Policy on Applying the Definition of Species, 56 Fed. Reg. 58,612, 58,618 (Nov. 20, 1991)).

Three threatened species are at issue in this suit; the ESU of Central Valley spring run Chinook salmon (“spring run Chinook”), the distinct population segment of Central Valley steelhead (“steelhead”), and the southern distinct population segment of North American green sturgeon (“green sturgeon”). 50 C.F.R. §§ 223.102(c)(1), (c)(4), (c)(17).

Plaintiffs invoke two of the ESA's mechanisms for protecting listed species, sections 7(a)(2) and 9. Section 7(a)(2) provides that

Each Federal agency shall, in consultation with and with the assistance of the Secretary [of Commerce or the Interior], insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary ... to be critical ...

ESA § 7(a)(2); 16 U.S.C. § 1536(a)(2). In this suit, the Corps determined that the project was likely to affect the three listed species. Section 7 therefore obliged the Corps to seek a BiOp from NMFS regarding whether these effects exceed the limits set by section 7(a)(2). ESA § 7(b)(3); 16 U.S.C. § 1536(b)(3); 50 C.F.R. § 402.12(a), (k). That BiOp is the subject of plaintiffs' third claim.

The ESA also generally prohibits “take” of endangered species. ESA § 9(a); 16 U.S.C. § 1538(a). Roughly stated, whereas section 7 looks to populations, section 9 looks to individual organisms. ESA § 3(19); 16 U.S.C. § 1532(19). When a species is listed as threatened, rather than endangered, the Service must determine whether to apply section 9's protections to the species. Id., see also ESA § 4(d); 16 U.S.C. § 1533(d). When this suit was filed, take of steelhead and spring run Chinook was largely prohibited, but take of green sturgeon was not. See 50 C.F.R. §§ 223.101, 223.203.

NMFS may relax the prohibition on take when take is incidental to activity for which NMFS has issued a “no jeopardy” BiOp. This relaxation takes the form of an “Incidental Take Statement,” which is

a written statement that-

(i) specifies the impact of such incidental taking on the species,

(ii) specifies those reasonable and prudent measures that the Secretary considers necessary or appropriate to minimize such impact,

(iii) ..., and

(iv) sets forth the terms and conditions (including, but not limited to, reporting requirements) that must be complied with by the Federal agency or applicant (if any), or both, to implement the measures specified under clauses (ii) and (iii).

ESA § 7(b)(4); 16 U.S.C. § 1536(b)(4). “[A]ny taking that is in compliance with the terms and conditions specified in a written [incidental take statement] ... shall not be considered to be a prohibited taking of the species concerned.” ESA § 7( o )(2); 16 U.S.C. § 1536( o )(2).

B. Biology of The Three Species

In reviewing the biology of the three species, the court relies on the November 2007 BiOp at issue in this suit (hereinafter “BiOp”), supplemented by the administrative record.

1. Spring Run Chinook Salmon

Salmon are anadromous fish, meaning they hatch in freshwater streams, migrate to the ocean to mature, then return to freshwater to spawn. Spring run Chinook salmon generally begin their freshwater migration in January, reach their natal streams from March to July, hold in the river over summer, and spawn from August to October. BiOp at 6-7. This timing historically allowed spring run Chinook to spawn farther upstream than the more plentiful fall run, reproductively isolating the two populations. Id. at 25. Juvenile spring run Chinook typically spend a year or more in freshwater habitats before migrating downstream to the ocean. Id. at 6-7.

For spawning, salmon require clean, loose gravel in swift, relatively shallow riffles (patches of stream with rough water), suitable depths and velocities for construction of redds (the gravel “nests” in which eggs are deposited), and adequate oxygenation for incubating eggs. Id. at 7. Juveniles need bank cover such as overhanging and submerged vegetation, root wads, and fallen woody debris. Id. at 7. Salmon are sensitive to water temperature throughout their life cycle. Id. at 6.

According to documents included in the NMFS administrative record, “more than 20 ‘historically large populations' of spring run chinook have been extirpated or reduced nearly to zero since 1940.” Admin. Record (“AR”) 11334-35 (Cal. Dept. of Fish and Game, “Fish Species of Special Concern in California,” at 39-40 (June 1995)) (hereinafter “Species of Special Concern”). ³ The average abundance for the entire ESU was 12,590 for the period of 1969 to 1979, 13,334 for the period of 1980 to 1990, 6,554 from 1991 to 2001, and 16,349 since 2002. BiOp at 10. However, there is very little information regarding abundance within the lower Yuba River. Id. at 18-19.

2. Steelhead

The BiOp explains that steelhead have life histories and habitat requirements that are similar to salmon, except that steelhead may spawn in multiple years. The BiOp discusses the needs of steelhead and spring run salmon together, referring to the species collectively as salmonids. Steelhead are also in similar decline. Historic populations were 1 to 2 million adults, reduced to about 40,000 in the early 1960s, to a spawning population of only about 3,600 female steelhead in 2005. BiOp at 11-12.

3. Green Sturgeon

Like salmon and steelhead, green sturgeon migrate between the ocean and freshwater. BiOp at 9. Adults generally migrate upstream beginning in February and spawn between March and July. Id. Spawning requires deep, turbulent, cold-water pools with large cobble substrate. Id. Juveniles spend from one to four years in fresh and estuarine waters before dispersing to marine waters. Id. at 10. The mainstem Sacramento River population is the only remaining spawning population for the southern distinct population segment of the green sturgeon (the “species” at issue here). Id. at 9. The best available evidence indicates that range-wide green sturgeon abundance is currently declining, mainly due to loss...