Natural Res. Def. Council v. Zinke

• Decision Date: 28 September 2018
• Docket Number: Case No. 1:05-cv-01207 LJO-EPG
• Citation: 347 F.Supp.3d 465
• Court: U.S. District Court — Eastern District of California
• Parties: NATURAL RESOURCES DEFENSE COUNCIL, et al., Plaintiffs, v. Ryan ZINKE, Secretary, U.S. Department of the Interior, et al., Defendants. San Luis & Delta Mendota Water Authority, et al., Defendant-Intervenors. Anderson-Cottonwood Irrigation District, et al., Joined Parties.

347 F.Supp.3d 465

NATURAL RESOURCES DEFENSE COUNCIL, et al., Plaintiffs,

v. Ryan ZINKE, Secretary, U.S. Department of the Interior, et al., Defendants.San Luis & Delta Mendota Water Authority, et al., Defendant-Intervenors.Anderson-Cottonwood Irrigation District, et al., Joined Parties.

Case No. 1:05-cv-01207 LJO-EPG

United States District Court, E.D. California.

Signed September 28, 2018

Anthony J. LoPresti, Barbara Jane Chisholm, Hamilton Candee, Corinne F. Johnson, Altschuler Berzon, LLP, Gregory Cahill Loarie, Marie Elizabeth Logan, Nina Catherine Robertson, Deborah S. Reames, Michael Ramsey Sherwood, Stacey P. Geis, Tamara T. Zakim, Trent William Orr, Earthjustice, Katherine Scott Poole, Natural Resources Defense Council, Drevet John Hunt, San Francisco, CA, George Matthew Torgun, California Department of Justice, Oakland, CA, for Plaintiffs.

Bradley H. Oliphant, U.S. Department of Justice, Env. & Natural Resources Division, Denver, CO, James A. Maysonett, Nicole Marie Smith, Department of Justice Wildlife and Marine Resources Section, Washington, DC, Andrew Morrow Hitchings, Daniel Kelly, Michael Eldon Vergara, Brittany Kirsten Lewis-Roberts, Stuart Leslie Somach, Somach, Simmons & Dunn, Steven Paul Saxton, Meredith E. Nikkel, Kevin M. O'Brien, Samuel E. Bivins, Downey Brand LLP, Daniel Joseph O'Hanlon, Hanspeter Walter, Scott A. Morris, William Thomas Chisum, Kronick Moskovitz Tiedemann and Girard, Sacramento, CA, Dustin Charles Cooper, Jeffrey A. Meith, Minasian Meith Soares Sexton & Cooper, LLP, Oroville, CA, Jeanne M. Zolezzi, Herum\Crabtree\Suntag, Stockton, CA, Scott Kuney, Doug Gosling, The Law Offices of Young Wooldridge, Bakersfield, CA, Mark A. Blum, Henry, Logoluso & Blum, Kerman, CA, for Defendants.

MEMORANDUM DECISION AND ORDER RE PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AS TO SIXTH CLAIM FOR RELIEF AGAINST SACRAMENTO RIVER SETTLEMENT CONTRACTORS AND CROSS-MOTIONS FOR SUMMARY JUDGMENT ON SIXTH CLAIM FOR RELIEF AGAINST FEDERAL DEFENDANTS (ECF NOS. 1175, 1207, 1209, 1210).

Lawrence J. O'Neill, UNITED STATES CHIEF DISTRICT JUDGE

I. INTRODUCTION

On March 12, 2018, Plaintiffs, a coalition of environmental interest groups led by the Natural Resources Defense Council ("NRDC"), filed the currently operative Sixth Supplemental Complaint ("6SC"), which includes numerous claims brought under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. , and the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq. , against the U.S. Bureau of Reclamation ("Bureau" or "Reclamation"), the U.S. Fish and Wildlife Service ("FWS" or "Service"), and various Joined Defendants and Defendant Intervenors. See generally ECF No. 1187. The remaining claims in the case¹ allege that the renewal, implementation, and approval of renewal and implementation of certain long-term water contracts violate the ESA and/or APA. Id.

Before the Court for decision are cross-motions for summary judgment on the second, fourth, and sixth claims for relief in the 6SC. The fourth claim for relief alleges a 2015 Letter of Concurrence ("2015 LOC") authored by FWS was the culmination of an inadequate ESA consultation regarding the effects of certain long-term contract renewals on delta smelt. 6SC at ¶¶ 189-194. The second claim for relief alleges that Reclamation acted unlawfully by accepting the 2015 LOC and implementing the long-term water supply contracts in reliance on the 2015 LOC. Id. at ¶¶ 176-182. The sixth claim for relief alleges that some holders of a certain type of long-term water contract, known as Sacramento River Settlement Contracts ("SRS Contracts" or "SRS Contractors" when referring to the holders), and Reclamation violated the ESA's prohibition against taking listed species because they caused substantial temperature-dependent mortality of Sacramento River winter-run Chinook salmon ("winter-run") and Central Valley spring-run Chinook salmon ("spring-run") eggs and fry in the Upper Sacramento River in 2014 and 2015. Id. at ¶¶ 201-205.

The motions concerning the second and fourth claims are limited to the administrative record ("AR"),² while review of the sixth claim is not.³ Because the sixth claim is set for a bench trial beginning March 5, 2019, see ECF No. 1194, in the interest of expedience, the Court addresses the motions that pertain to the sixth claim in this Memorandum Decision and Order, leaving the remaining matters for separate resolution.

II. PROCEDURAL HISTORY

The Court has reviewed the factual and procedural history of this case in painstaking detail in prior orders. See Nat. Res. Def. Council v. Norton , 236 F.Supp.3d 1198, 1203-10 (E.D. Cal. 2017) (" NRDC v. Norton ") (ECF No. 1069 at 5-15). That review is incorporated herein by reference. Upon resolution of the most recent round of motions to dismiss, only certain aspects of the sixth claim for relief remain. First, as mentioned, Plaintiffs allege that the named SRS Contractor Defendants caused substantial temperature-dependent mortality of winter-run and spring-run Chinook salmon by diverting and transferring water pursuant to the terms of the SRS Contracts in 2014 and 2015, without an appropriate permit under the ESA. See 6SC ¶ 204. Only two narrow aspects of the Section 9 claim remain pending against Reclamation: that Reclamation unlawfully "took" ESA-listed salmonids by (1) approving water transfers SRS Contractors to others in 2014 and 2015; and (2) by failing to require one SRS Contractor, the Glenn Colusa Irrigation District ("GCID"), to divert a certain volume of water from Stony Creek, rather than directly from the Sacramento River, during those same years. See NRDC v. Norton , 236 F.Supp.3d at 1240.

III. LEGAL STANDARDS

A. General Summary Judgment Standard

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). At summary judgment, a court's function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations. See id. at 255, 106 S.Ct. 2505 ; see also Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. Anderson , 477 U.S. at 249-50, 106 S.Ct. 2505. A fact is "material" if its proof or disproof is essential to an element of a plaintiff's case. Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "[T]the substantive law will identify which facts are material." Anderson , 477 U.S. at 248, 106 S.Ct. 2505. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. A factual dispute is "genuine" "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. 2505. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal citation omitted).

The moving party bears the initial burden of informing the Court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact for trial. Celotex , 477 U.S. at 323, 106 S.Ct. 2548. Put another way:

A moving party without the ultimate burden of persuasion at trial-usually, but not always, a defendant-has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. See 10A Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure § 2727 (3d ed.1998). In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. See High Tech Gays v. Defense Indus. Sec. Clearance Office , 895 F.2d 563, 574 (9th Cir. 1990). In order to carry its ultimate burden of persuasion on the motion, the moving party must persuade the court that there is no genuine issue of material fact. See id.

Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc. , 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, set forth specific facts showing that there is some genuine issue for trial in order to defeat the motion. See Fed. R. Civ. P. 56(c) ; Anderson , 477 U.S. at 250, 106 S.Ct. 2505. "If a moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial." Nissan Fire , 210 F.3d at 1102-1103 ; see Adickes v. S.H. Kress & Co. , 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

B. General ESA Framework

"Under the ESA, the Secretary of the Interior and the Secretary of Commerce are charged with identifying threatened and endangered species and designating critical habitats for those species." Nat. Res. Def. Council v. Jewell , 749 F.3d 776, 779 (9th Cir. 2014) (" NRDC v. Jewell ") (citing 16 U.S.C. § 1533 ). FWS and the National Marine Fisheries Service ("NMFS") administer the ESA on behalf of the Departments of the Interior and Commerce, respectively⁴ . See 50 C.F.R. §§ 17.11, 222.101(a), 223.102, 402.01(b). The district court ...