Natural Res. Def. Council v. Norton

• Citation: 236 F.Supp.3d 1198
• Decision Date: 23 February 2017
• Docket Number: Case No. 1:05–cv–01207 LJO–EPG
• Court: U.S. District Court — Eastern District of California
• Parties: NATURAL RESOURCES DEFENSE COUNCIL, et al., Plaintiffs, v. Gail A. NORTON, 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.

236 F.Supp.3d 1198

NATURAL RESOURCES DEFENSE COUNCIL, et al., Plaintiffs,

v.Gail A. NORTON, 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 February 23, 2017

Anthony J. Lopresti, Barbara Jane Chisholm, Corinne F. Johnson, Hamilton Candee, Altschuler Berzon, LLP, Katherine Scott Poole, Natural Resources Defense Council, Deborah S. Reames, Michael Ramsey Sherwood, Tamara T. Zakim, Trent William Orr, Earthjustice, San Francisco, CA, George Matthew Torgun, California Department of Justice, Oakland, CA, Edgar B. Washburn, Mill Valley, CA, for Plaintiffs.

Bradley H. Oliphant, US 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, Somach, Simmons & Dunn, Steven Paul Saxton, Meredith E. Nikkel, Downey Brand LLP, Daniel Joseph O'Hanlon, Hanspeter Walter, Scott A. Morris, William Thomas Chisum, Kronick, Moskovitz, Tiedemann & Girard, Kevin M. O'Brien, Downey Brand LLP, Stephen Michael Lerner, McDonough, Holland & Allen PC, Sacramento, CA, Dustin Charles Cooper, Jeffrey A. Meith, Minasian Meith Soares Sexton & Cooper, LLP, Oroville, CA, Jeanne M. Zolezzi, Herum Crabtree, Stockton, CA, Scott Kuney, The Law Offices of Young Wooldridge, Doug Gosling, Young Wooldridge, Bakersfield, CA, Mark A. Blum, Henry, Logoluso & Blum, Kerman, CA, Lynette Marie Frediani, City of Redding, Redding, CA, for Defendants.

MEMORANDUM DECISION AND ORDER RE MOTIONS TO DISMISS (Docs. 1029, 1030, 1031, 1032, 1036).

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

I. INTRODUCTION

On April 28, 2016, Plaintiffs, a coalition of environmental interest groups led by the Natural Resources Defense Council, filed the currently operative Fourth Supplemental Complaint ("4SC"), which includes three pre-existing 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. , alleging that the U.S. Bureau of Reclamation ("Bureau" or "Reclamation") and the U.S. Fish and Wildlife Service ("FWS" or "Service") acted unlawfully by renewing, implementing, and approving the renewal and implementation of certain long-term water contracts in reliance on a 2005 Biological Opinion ("2005 FWS Smelt OCAP BiOp") issued by FWS pursuant to the ESA, that the agencies knew, or should have known, was inadequate to protect the ESA-listed delta smelt. Doc. 575 (filed Apr. 8, 2008). Specifically, the pre-existing claims challenged renewal of two sets of contracts: (1) those held by the Sacramento River Settlement ("SRS") Contractors; and (2) those held by the Delta–Mendota Canal Unit ("DMC") Contractors. Id.

The 4SC added three new claims to this action: the Fourth Claim for Relief alleges FWS failed to conduct an adequate consultation on the effects of the SRS and DMC Contract renewals on delta smelt; the Fifth Claim for Relief alleges Reclamation failed to reinitiate consultation on the alleged impact of the SRS Contracts on ESA-listed winter-run and spring-run Chinook salmon; and the Sixth Claim for Relief alleges Reclamation and the SRS Contractors have unlawfully "taken" winter-run and spring-run Chinook in violation of Section 9 of the ESA ("Section 9"), 16 U.S.C. § 1538(a).

The SRS Contractors move to dismiss the First, Second, Third, Fifth, and Sixth Claims for Relief. Doc. 1031 ("SRS MTD"). The Federal Defendants move to dismiss the Fifth and Sixth Claims for Relief. Doc. 1032 ("FD MTD"). The DMC Contractors move to dismiss the First, Second, and Third Claims for Relief. Doc. 1033 ("DMC MTD"). James Irrigation District and Del Puerto Water District (collectively, "JID Parties") join in the motions to dismiss the First, Second, and Third Claims for Relief, Docs. 1029 & 1030 ("JID Joinder"), as does the Banta–Carbona Irrigation District, Patterson Irrigation District, West Stanislaus Irrigation District, and the West Side Irrigation District (collectively, "Banta–Carbona Parties"). Doc. 1036 ("Banta–Carbona Joinder"). No party moves to dismiss the Fourth Claim for Relief. Plaintiffs oppose the motions. Doc. 1039 ("Pltf. Opp."). All moving parties filed replies. Docs. 1040 & 1041 ("JID Reply"), 1042 ("DMC Reply"), 1043 ("FD Reply"), 1044 ("SRS Reply").

On October 20, 2016, the Court issued a Memorandum Decision and Order resolving certain aspects of the pending motions and requesting supplemental briefing on others. Doc. 1045 ("October 20, 2016 Order"). After stipulating to an extension of time for the filing of supplemental briefs, Doc. 1047, supplemental briefs were filed in December 2016 and January 2017. Docs. 1048, 1052, 1054.

II. LEGAL BACKGROUND

"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, respectively. See 50 C.F.R. §§ 17.11, 222.101(a), 223.102, 402.01(b). Section 7 of the ESA requires federal agencies to ensure that their activities do not jeopardize the continued existence of listed endangered or threatened species or adversely modify those species' critical habitats. 16 U.S.C. § 1536(a)(2) ; see also Karuk Tribe of Cal. v. U.S. Forest Serv. , 681 F.3d 1006, 1020 (9th Cir. 2012). Section 7's implementing regulations provide that "[e]ach Federal agency shall review its actions at the earliest possible time to determine whether any action may affect listed species or critical habitat[s]." 50 C.F.R. § 402.14(a). An agency proposing to take an action (often referred to as the "action agency") must first inquire of FWS or NMFS¹ whether any threatened or endangered species "may be present" in the area of the proposed action. See 16 U.S.C. § 1536(c)(1). If endangered species may be present, the action agency must prepare a "biological assessment" ("BA") to determine whether such species "is likely to be affected" by the action. Id. If the BA determines that a threatened or endangered species "is likely to be affected," the agency must formally consult with FWS. See id. § 1536(a)(2) ; 50 C.F.R. § 402.14(a).

Formal consultation results in the issuance of a "biological opinion" ("BiOp") by FWS. See 16 U.S.C. § 1536(b). If the BiOp concludes that the proposed action would jeopardize the species or destroy or adversely modify critical habitat, see id. § 1536(a)(2), then the action may not go forward unless FWS can suggest a "reasonable and prudent alternative[ ]" ("RPA") that avoids jeopardy, destruction, or adverse modification. Id. § 1536(b)(3)(A). If the BiOp concludes that jeopardy is not likely and that there will not be adverse modification of critical habitat, or that there is a RPA to the agency action that avoids jeopardy and adverse modification, and that the incidental taking of endangered or threatened species will not violate Section 7(a)(2), the consulting agency shall issue an "Incidental Take Statement" ("ITS") which, if followed, exempts the action agency from the prohibition on takings found in Section 9 of the ESA. 16 U.S.C. § 1536(b)(4) ; Aluminum Co. of Am. v. Administrator, Bonneville Power Admin. , 175 F.3d 1156, 1159 (9th Cir. 1999). Even after consultation is complete, an agency has a duty to reinitiate formal consultation under certain circumstances, including if: "the amount or extent of taking specified in the incidental take statement is exceeded"; "new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered"; or "the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion." 50 C.F.R. § 402.16.

Section 9, prohibits, among other actions, the "take" of any listed animal species by any "person subject to the jurisdiction of the United States." 16 U.S.C. § 1538(a)(1)(B). The ESA defines "take" as "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). Two safe harbor provisions described in greater detail below immunize persons from Section 9 liability and penalties where takings committed during otherwise lawful activities occur in compliance with the terms and conditions of either an ITS issued after Section 7 consultation or an Incidental Take Permit ("ITP") issued pursuant to ESA Section 10. 16 U.S.C. § 1539.

III. FACTUAL AND PROCEDURAL HISTORY

A. The Central Valley Project and the State Water Project

The Central Valley Project ("CVP") and the State Water Project ("SWP"), "operated respectively by [Reclamation] and the State of California, are perhaps the two largest and most important water projects in the United States." San Luis & Delta–Mendota Water Auth. v. Jewell , 747 F.3d 581, 592 (9th Cir. 2014) (" San Luis v. Jewell "). "These combined projects supply water originating in northern California to more than 20,000,000 agricultural and domestic consumers in central and southern California." Id. As part of CVP operations, Reclamation releases water stored in CVP reservoirs in northern California, which then flows down the Sacramento River to the Sacramento–San Joaquin Delta ("Delta"). Id. at 594. Pumping plants in the southern region of the Delta then divert the water to various users south of the Delta. See id. at 594–95.

B. Delta Smelt

The delta smelt...