Friends of the River v. Nat'l Marine Fisheries Serv., No. 2:16–cv–00818–JAM–EFB

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtJOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE
Citation293 F.Supp.3d 1151
Parties FRIENDS OF the RIVER, Plaintiff, v. NATIONAL MARINE FISHERIES SERVICE, et al., Defendants.
Decision Date21 February 2018
Docket NumberNo. 2:16–cv–00818–JAM–EFB

293 F.Supp.3d 1151

FRIENDS OF the RIVER, Plaintiff,
v.
NATIONAL MARINE FISHERIES SERVICE, et al., Defendants.

No. 2:16–cv–00818–JAM–EFB

United States District Court, E.D. California.

February 21, 2018
February 22, 2018


293 F.Supp.3d 1158

Christopher Alan Sproul, Environmental Advocates, San Francisco, CA, Patricia Linn, Law Office Of Patricia Linn, Mill Valley, CA, for Plaintiff.

Travis James Annatoyn, Trent S.W. Crable, U.S. Department Of Justice, Washington, DC, for Defendant.

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, GRANTING FEDERAL DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, AND GRANTING INTERVENOR'S MOTION FOR SUMMARY JUDGMENT

JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

This litigation concerns three species of threatened fish and two federally-managed dams in the Yuba River. Friends of the River ("Plaintiff" or "FOR") sued the United States Army Corps of Engineers (the "Corps") and National Marine Fisheries Service ("NMFS") (collectively, "Federal Defendants") alleging violations of the Endangered Species Act and Administrative Procedures Act. Yuba County Water Agency ("YCWA" or "Intervenor") intervened in the case. ECF No. 16. Parties filed cross-motions for summary judgment, ECF Nos. 33, 38, 41, which were followed by opposition and reply briefs, ECF Nos. 49, 54, 57. For the reasons set forth below, the Court DENIES Plaintiff's motion, GRANTS Federal Defendants' motion, and GRANTS Intervenor's motion.

II. BACKGROUND

A. Endangered Species Act

The Endangered Species Act of 1973 (ESA) "reflects a conscious decision by Congress to give endangered species priority over the primary missions of federal agencies." W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 495 (9th Cir. 2011) (quoting Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) (" TVA v. Hill") (internal quotations marks omitted) ). The ESA tasks federal agencies with ensuring that any "agency action" is not likely to jeopardize the continued existence of any listed species. 16 U.S.C. § 1536(a)(2). Further, agency action may not destroy or adversely modify the critical habitat of any listed species. Id.

Agency actions that "may affect" a listed species require the acting agency to formally consult with the federal agency responsible for protecting that species. 50 C.F.R. § 402.14(a) ; Grand Canyon Tr. v. U.S. Bureau of Reclamation, 691 F.3d 1008, 1011–12 (9th Cir. 2012), as amended (Sept. 17, 2012). If a listed species is present

293 F.Supp.3d 1159

in the area of a proposed action, the acting agency—here, the Corps—must conduct a biological assessment ("BA"), "for the purpose of identifying any endangered species or threatened species which is likely to be affected by such action." 16 U.S.C. § 1536(c).

At the end of the formal consultation process, the Secretary of the consulting agency—here, NMFS—must issue a Biological Opinion ("BiOp"). Id. § 1536(b)(3)(A). A BiOp is a "written statement setting forth the Secretary's opinion, and a summary of the information on which the opinion is based, detailing how the agency action affects the species or its critical habitat." Id. If the consulting agency believes that the project will jeopardize a listed species or adversely modify the species' habitat, "the Secretary shall suggest those reasonable and prudent alternatives which he believes would not violate subsection (a)(2) and can be taken by the Federal agency or applicant in implementing the agency action." Id.

The ESA also prohibits any federal agency from "taking" a listed species. 16 U.S.C. § 1538(a)(1)(B). "Take" is defined as meaning "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19). Where a taking is incidental to, rather than the purpose of, a federal action, it is referred to as an incidental take. 16 U.S.C. § 1536(b)(4) ; 50 C.F.R. § 17.3. An incidental take may be permitted if the consulting agency issues the acting agency an incidental take statement along with the BiOp. 50 C.F.R. § 402.14(i). If the acting agency subsequently modifies the action "in a manner that causes an effect to the listed species or critical habitat that was not considered in the [BiOp]," or if the acting agency exceeds the take authorized in the incidental take statement, the agencies must reinitiate formal consultation. 50 C.F.R. § 402.16.

B. Administrative Procedure Act

The Administrative Procedure Act (APA) provides for judicial review of federal agencies' final actions. 5 U.S.C. § 702 ; see also Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). "Agency decisions under ESA are governed by the [APA], which requires an agency action to be upheld unless it is found to be ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ " Defs. of Wildlife v. Zinke, 856 F.3d 1248, 1256–57 (9th Cir. 2017) (quoting Pac. Coast Fed'n of Fishermen's Ass'ns, Inc. v. Nat'l Marine Fisheries Serv., 265 F.3d 1028, 1034 (9th Cir. 2001) ; 5 U.S.C. § 706(2)(A) ). A court may find that an agency's action was arbitrary and capricious,

"only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise."

Id. at 1257 (quoting Conservation Cong. v. U.S. Forest Serv., 720 F.3d 1048, 1054 (9th Cir. 2013) ). During this deferential review, the court upholds the agency's action unless the agency failed to consider relevant factors or did not articulate "a rational connection between the facts found and the choices made." Alaska Oil & Gas Ass'n v. Pritzker, 840 F.3d 671, 675–76 (9th Cir. 2016) (quoting Alaska Oil & Gas Ass'n v. Jewell, 815 F.3d 544, 554 (9th Cir. 2016) ).

The same standard applies to both new agency policies and changes to previous agency positions. Id. at 681. "An agency must provide a reasoned explanation

293 F.Supp.3d 1160

for adoption of its new policy—including an acknowledgment that it is changing its position and if appropriate, any new factual findings that may inform that change—but it need not demonstrate that the new policy is better than its prior policy." Id. at 682.

C. The Three Fish Species

Central Valley spring-run Chinook salmon ("spring Chinook"), Central Valley steelhead ("steelhead"), and the Southern Distinct Population Segment of North American green sturgeon ("green sturgeon") are anadromous fish. Corps R. 532:42347–42458. Born into freshwater, anadromous fish migrate to the ocean as juveniles and return to freshwater as adults to spawn and die.

Habitat blockage by dams and the degradation and destruction of habitat has decimated fish populations. Corps R. 532:42358. Current populations are a fraction of their historical abundance. Corps R. 532:42351, 42397, 42441. Due to these declines, NMFS listed the spring Chinook, steelhead, and green sturgeon (collectively, "the Listed Species") as threatened under the ESA. 64 Fed. Reg. 50,394 (Sept. 16, 1999) (spring Chinook); 71 Fed. Reg. 834 (Jan. 5, 2006) (steelhead); 71 Fed. Reg. 17,757 (April 7, 2006) (green sturgeon). The Yuba River makes up a portion of the critical habitat for each of the Listed Species. 70 Fed. Reg. 52,488 (Sept. 2, 2005) (spring Chinook, steelhead); 74 Fed. Reg. 52300 (Oct. 9, 2009) (green sturgeon). Despite their listed status, the three species continue to swim towards extinction. See Corps R. 532:42631 ("The CV spring-run Chinook salmon ESU is at moderate risk of extinction...[and] has worsened since the last status review."), 42634 ("The CCV steelhead DPS is at high risk of extinction...and the extinction risk is increasing."), 42636 ("The green sturgeon southern population DPS is at substantial risk of extinction").

D. The Englebright and Daguerre Point Dams

The Yuba River is a Northern California river that flows into the Sacramento and Feather Rivers. State of Cal. ex rel. State Land Comm'n v. Yuba Goldfields, Inc., 752 F.2d 393, 394 (9th Cir. 1985). Extensive gold mining efforts took place in the region during the late nineteenth century. Id. One mining technique in particular had "disastrous ramifications" for the surrounding environment. Id. Hydraulic mining, by which miners spray high-pressure water along hillsides to dislodge the desired material, resulted in large deposits of debris into the Yuba River and subsequent flooding to the surrounding area. Id. In response to this problem, Congress enacted the Caminetti Act of 1893, 33 U.S.C. §§ 661 etseq. Id. The Caminetti Act created the California Debris Commission, "a federal agency staffed by members of the Army Corps of Engineers, which was empowered to regulate and oversee hydraulic mining in the Sacramento and Joaquin river systems within the State of California, 33 U.S.C. § 663." Id. The Caminetti...

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  • Adkins v. J.B. Hunt Transp., Inc., Civ. No. 2:18–28 WBS AC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 20, 2018
    ...been conducted.IT IS THEREFORE ORDERED that plaintiff's Motion to remand this action (Docket No. 6) be, and the same hereby is, DENIED.293 F.Supp.3d 1151IT IS FURTHER ORDERED that defendant's Motion to stay (Docket No. 9) be, and the same hereby is, DENIED.--------Notes:1 Plaintiff agrees t......
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    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 20, 2018
    ...been conducted.IT IS THEREFORE ORDERED that plaintiff's Motion to remand this action (Docket No. 6) be, and the same hereby is, DENIED.293 F.Supp.3d 1151IT IS FURTHER ORDERED that defendant's Motion to stay (Docket No. 9) be, and the same hereby is, DENIED.--------Notes:1 Plaintiff agrees t......

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