Hoopa Valley Tribe v. Nat'l Marine Fisheries Serv.

• Decision Date: 08 February 2017
• Docket Number: Case No. 16–cv–04294–WHO
• Parties: HOOPA VALLEY TRIBE, Plaintiff, v. NATIONAL MARINE FISHERIES SERVICE, et al., Defendants.
• Court: U.S. District Court — Northern District of California

230 F.Supp.3d 1106

HOOPA VALLEY TRIBE, Plaintiff,

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

Case No. 16–cv–04294–WHO

United States District Court, N.D. California.

Signed February 8, 2017

Patricia A. Prochaska, Attorney at Law, Menlo Park, CA, Thane D. Somerville, Thomas P. Schlosser, Morisset Schlosser Jozwiak Somerville, Seattle, WA, for Plaintiff.

Coby Healy Howell, U.S. Dept. of Justice, Portland, OR, Robert Pendleton Williams, U.S. Department of Justice, Washington, DC, Kaitlyn Poirier, United

States Department of Justice, Washington, D.C., for Defendants.

ORDER RE MOTIONS FOR SUMMARY JUDGMENT, MOTIONS TO STRIKE, AND MOTION TO DISMISS

WILLIAM H. ORRICK, United States District Judge

INTRODUCTION

This order addresses parallel motions brought in two related cases, Yurok Tribe v. Bureau of Reclamation , No. 16–cv–6863, and Hoopa Valley Tribe v. Bureau of Reclamation , No. 16–cv–4294. The plaintiffs in these two cases are tribes and fishing associations, seeking to protect Southern California Northern California Coast Coho salmon in the Klamath River from negative impacts of the Klamath River Project. In both cases plaintiffs have moved for summary judgment on their first claim against the federal defendants, asserting that the defendants violated 50 C.F.R 402.16, an implementing regulation of the Endangered Species Act ("ESA"), by failing to reinitiate formal consultation following two years of record rates of disease among Coho salmon in the Klamath River. Plaintiffs seek a declaratory judgment that the federal defendants have violated the ESA and an injunction putting protective water flows in place to reduce disease rates while the federal defendants complete the formal consultation process.

The federal defendants and intervenor defendants oppose the motions. They have also filed motions to limit review to the Administrative Record. Yurok Dkt. No. 42; Yurok Dkt. No. 43. In addition, before the plaintiffs filed their motions for summary judgment, and before the Yurok plaintiffs filed their case, the federal defendants moved to dismiss, or in the alternative to stay, the claims brought by Hoopa Valley. Hoopa Dkt. No. 33. This motion to dismiss has not yet been addressed and remains ripe.

With regard to the motion to dismiss against Hoopa Valley, I conclude that Claim III, unlawful taking of a listed species, is not cognizable against the National Marine Fisheries Service ("NMFS") because NMFS does not participate in running the Klamath Project and so is not responsible for any taking. The remaining claims are cognizable, are not moot, and should not be stayed. The motion to dismiss is GRANTED with regard to Claim III as brought against NMFS and is DENIED in all other respects.

I conclude that plaintiffs' reinitiation claim against the United States Bureau of Reclamation ("Bureau") is brought under the ESA citizen suit provision and that review of that claim is not limited to an administrative record. The claim against NMFS, although brought under the Administrative Procedure Act ("APA"), is a failure to act claim and is therefore similarly not limited to an administrative record. I therefore DENY defendants' motion to limit review. Notably, however, I would reach the same result reviewing these claims under the administrative record as I do considering the extra-record evidence. As a result, to simplify the issue, and to avoid any confusion or potential conflicts regarding the scope of extra-record evidence permitted for each claim, I will rely exclusively on the record evidence to assess the merits of plaintiffs' reinitiation claims. Because the parties do not dispute that extra-record evidence may be considered to assess standing and to determine whether injunctive relief is appropriate, I will consider the extra-record evidence, where applicable, for these limited purposes.

With regard to the motions for summary judgment, I conclude that the federal defendants violated 50 C.F.R. 402.16 because they delayed two years before reinitiating formal consultation after the incidental take trigger was exceeded in 2014. Preliminary injunctive relief, pending completion of formal consultation, is an appropriate remedy for this substantial procedural violation. In general, plaintiffs' requested injunctive relief is supported by the best available science and plaintiffs' proposal that the parties' technical experts confer on the precise timing, duration, volume, and manner of any potential injunctive flows will allow the parties to address the Bureau's needs to maintain sufficient water for the sucker fish (two species of endangered fish also impacted by the Klamath Project), comply with various regulations, and manage safety concerns. Plaintiffs' motions for summary judgment on Claim I are GRANTED. The precise details of the preliminary injunction will be determined as outlined below.

BACKGROUND

I. FACTUAL BACKGROUND

This case concerns the rate of Ceratanova shasta ("C. shasta" ) infection among Coho salmon in the Klamath River. Yurok Dkt. No. 8 at 1. Water flows on the Klamath River are altered and lowered by the Klamath Irrigation Project, a water project that provides water to irrigation districts in Oregon and Northern California. Id. The Klamath Project is operated by the Bureau, a federal agency that is required to comply with ESA regulations that prohibit the taking of any endangered or threatened species.

The history of the Klamath Project and its impact on the Coho salmon is long and complex, and will be discussed in greater detail when this Order addresses the motions for summary judgment. Underlying the motions are these salient facts. The Bureau is bound by a 2013 Biological Opinion and incidental take statement that outlines the projected impact of the Klamath Project's operations on threatened species and sets the permissible C. shasta disease rate among Coho salmon at 49 percent. AR 1043–1075. In 2014 and 2015, the Klamath River's Coho salmon population suffered unprecedented outbreaks of C. shasta , far exceeding the incidental take maximum outlined in the NMFS incidental take statement: 81 percent infection in 2014 and 91 percent in 2015. AR 502. In their complaints and motions for summary judgment, plaintiffs asserted that, per ESA regulations, following this violation of the incidental take statement, the Bureau and NMFS (collectively, "federal defendants") were required to reinitiate and complete formal consultation on the Klamath Project's operations, but failed to do so. See e.g. , Yurok Dkt. No. 8 at 2.

In January, 2017, weeks after plaintiffs filed their motions for summary judgment, the Bureau sent letters to NMFS and FWS stating that it wanted to clarify that the agencies were now engaged in formal consultation. AR 0001–04; AR 0005–08. The Hoopa Valley plaintiffs contest that these letters are sufficient to show that the federal defendants have in fact reinitiated formal consultation. In contrast, the Yurok plaintiffs now concede that the federal defendants have reinitiated formal consultation but ask the court to order the defendants to perfect their formal consultation by following the procedures outlined in Section 402.14 for conducting formal consultation generally.

II. PROCEDURAL BACKGROUND

On July 29, 2016, the Hoopa Valley Tribe filed suit against the Bureau and NMFS seeking declaratory and injunctive relief and alleging that the federal defendants are in violation of the ESA because they have failed to reinitiate formal consultation on the impact of Klamath Project operations on threatened Coho salmon.

Hoopa Dkt. No. 1. Hoopa Valley's complaint asserts four claims for relief: (1) failure to reinitiate formal consultation on the 2013–2023 Klamath Project operations, brought under the citizen suit provision of the ESA and alternatively, under the APA against both the Bureau and NMFS; (2) failure to prepare an adequate Biological Opinion for the 2013–2023 Klamath Project operations as required under Section 7 of the ESA, brought against NMFS; (3) violation of Section 9 of the ESA by "taking" threatened Coho salmon in excess of the amount authorized in the incidental take statement, brought against both the Bureau and NMFS; and (4) violation of the APA and Magnuson–Stevens Fishery Conservation and Management Act by failing to consult on essential fish habitat, brought against both the Bureau and NMFS. Id.

A. Motion to Dismiss

The federal defendants moved to dismiss all of these claims, asserting that Claims I, III, and IV were not cognizable against NMFS, that Claim III failed against the Bureau because plaintiffs had failed to show an imminent Section 9 violation and because the Bureau had immunity from Section 9 liability, and that Claims I, II, & IV were "prudentially moot" because the agencies had already begun "informal consultation." Hoopa Dkt. No. 33. In the alternative, the federal defendants requested that the court stay claims I, II, and IV so that the agencies could focus on their informal consultation process. Id. at 22. The briefing and hearing schedule on the motion to dismiss was originally extended by stipulation of the parties. After the Yurok case was filed and the Hoopa Valley and Yurok plaintiffs filed motions for summary judgment, the court extended the hearing on the motion to dismiss to be heard at the same time as these summary judgment motions.

B. Motion for Partial Summary Judgment

The Yurok Tribe and commercial and conservation fishing groups filed their complaint on November 29, 2016, mostly mirroring the claims raised by Hoopa Valley. Yurok Dkt. No. 1. The Yurok Tribe's claims differ in two primary ways: (1) their Claim II does not specifically challenge the 2013 Biological Opinion ("BiOp") but instead alleges generally that both the Bureau and NMFS are in violation of their substantive duties under Section 7(a)(2) of the ESA; and (2) their Claim III, the "taking" claim, is asserted only against the Bureau. Id.

On November 30, 2016, and December 1, 2016, the Hoopa...