Northern California River Watch v. Wilcox, No. C 06-06685 CRB.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtCharles R. Breyer
PartiesNORTHERN CALIFORNIA RIVER WATCH, et al., Plaintiffs, v. Carl WILCOX, et al., Defendants.
Decision Date06 March 2008
Docket NumberNo. C 06-06685 CRB.
547 F.Supp.2d 1071
NORTHERN CALIFORNIA RIVER WATCH, et al., Plaintiffs,
v.
Carl WILCOX, et al., Defendants.
No. C 06-06685 CRB.
United States District Court, N.D. California.
March 6, 2008.

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Jack Silver, Law Office of Jack Silver, Nancy Kay Webb, Santa Rosa, CA, Douglas Jonathan Chermak, Michael Robert Lozeau, Law Office of Michael R. Lozeau, Alameda, CA, for Plaintiffs.

Michael William Neville, California Attorney General, Christopher J. Carr, Shaye Diveley, Morrison & Foerster LLP, San Francisco, CA, for Defendants.

MEMORANDUM AND ORDER

CHARLES R. BREYER, District Judge.


This is an Endangered Species Act ("ESA") case involving a plant, the Sebastopol meadowfoam. Now pending before the Court are the motions for summary judgment of the Schellinger defendants and the individual California Department of Fish and Game defendants, Carl Wilcox and Gene Cooley, as well as plaintiffs' cross motion for summary judgment. The parties' motions present a question of first impression: whether "areas under Federal jurisdiction" in ESA section 9(a)(2)(B) encompasses wetlands adjacent to navigable waterways and therefore subject to the requirements of the Clean Water Act.

BACKGROUND FACTS

The Schellinger defendants (collectively "Schellinger") propose to develop approximately 21 acres of land in Sebastopol, California ("the Site"). The Site includes grasslands containing seasonal vernal pools, wetlands, seasonal creeks, vernal

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pools and vernal swales. The Sebastopol meadowfoam, an endangered plant species under the ESA, has been found at the Site.

In 2003 the Army Corps of Engineers ("ACOE") certified 1.84 acres of the Site as wetlands subject to the permitting requirements of the Clean Water Act. The designation was based upon the ACOE's findings that the designated area met all the requirements to be classified as wetlands and the wetlands are adjacent to navigable waters of the United States, namely, the Laguna de Santa Rosa, the largest tributary of the Russian River. As a result of the designation, Schellinger must obtain an ACOE permit before he can fill and dredge the wetlands. Plaintiffs offer evidence that the Sebastopol meadowfoam grows within the ACOE designated wetlands.

On May 9, 2005, defendant Carl Wilcox, a Habitat Conservation Manager with the California Department of Fish and Game ("Fish and Game"), and defendant Gene Cooley, a Fish and Game botanist, visited the Site with Schellinger to examine the Sebastopol meadowfoam. Plaintiffs allege that the defendants damaged the meadowfoam during their examination. On May 23, 2005, Cooley and Wilcox returned to the Site and removed the wetlands meadowfoam, placed them in plastic bags, and transported them to the local Fish and Game Office. Cooley and Wilcox assert that they confiscated the meadowfoam because they believed that it was not naturally occurring on the Site and had been intentionally placed there from another location. Whether the meadowfoam are naturally occurring at the Site is disputed.

PROCEDURAL HISTORY

Plaintiff Northern California River Watch and several individuals filed this action against Cooley and Wilcox and the Schellinger defendants under ESA section 9(a)(2)(B). Plaintiffs allege that defendants conduct harmed the endangered Sebastopol meadowfoam.

Defendants made an early summary judgment motion. They argued that their conduct did not violate ESA section 9(a)(2)(B) as a matter of law as to the Sebastopol meadowfoam. First, they argued that the meadowfoam were removed from private land and therefore the Act does lot apply. Second, they argued that no claim could be stated against them because Cooley and Wilcox removed the meadowfoam in accordance with California law as part of their official management and law enforcement duties.

The Court denied defendants' motion for summary judgment. With respect to the jurisdictional issue, the Court held that defendants' cursory argument had not persuaded the Court that "areas under Federal jurisdiction" is limited to lands owned by the federal government. The Court also held that it was premature to conclude that no reasonable trier of fact could find that Cooley and Wilcox did not remove the meadowfoam as part of their official management and law enforcement duties.

Now that discovery is complete, defendants renew their summary judgment motions.

SUMMARY JUDGMENT STANDARD

Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the non-moving party, and a dispute is "material" only if it could affect the outcome

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of the suit under governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-19, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "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. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted). A principal purpose of the summary judgment procedure "is to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

A party moving for summary judgment that does not have the ultimate burden of persuasion at trial has the initial burden of either producing evidence that negates an essential element of the non-moving party's claims or showing that the non-moving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. See Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir.2000). Where the party moving for summary judgment would bear the burden of proof at trial, it bears the initial burden of producing evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. See CAR. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir.2000). If the moving party does not satisfy its initial burden, the nonmoving party has no obligation to produce anything and summary judgment must be denied. If, however, the moving party satisfies its initial burden of production, then the non-moving party may not rest upon mere allegations, or denials of the adverse party's evidence, but instead must produce admissible evidence to show there exists a genuine issue of material fact. See Nissan Fire & Marine, 210 F.3d at 1102.

DISCUSSION

Under ESA section 7 a federal agency is required to consult with the Fish and Wildlife Service to "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." 16 U.S.C. § 1536(a)(2). This section 7 consultation requirement applies equally to endangered fish, wildlife and plants. See 16 U.S.C. § 1532(16) (defining "species" as used in the ESA to "include[] any subspecies of fish or wildlife or plants").

ESA sections 9 and 10, in contrast, treat plants differently from fish and wildlife. Pursuant to ESA section 9, it is unlawful to "take," that is, "harm," endangered fish or wildlife "within the United States or the territorial seas of the United States." 16 U.S.C. § 1538(a)(1)(B). Accordingly, the fish and wildlife protections apply anywhere in the United States. Under ESA section 10 a private party may apply to the Fish and Wildlife Service for an "incidental take permit" that allows the landowner to harm a given number of endangered fish or wildlife under certain conditions. 16 U.S.C. § 1539(a)(B); Oregon Natural Resources Council v. Allen, 476 F.3d 1031, 1032 n. 2 (9th Cir.2007).

With respect to plants, section 9 makes it is unlawful to

remove and reduce to possession any such species from areas under Federal jurisdiction; maliciously damage or destroy any such species on any such area; or remove, cut, dig up, or damage or destroy any such species on any other area in knowing violation of any law or regulation of any State.

16 U.S.C. § 1538(a)(2)(B) (emphasis added). Thus, the prohibition on removing and reducing to possession and maliciously damaging or destroying endangered plant

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species 4 only applies in "areas under Federal jurisdiction." However, a person may not "remove, cut, dig up, or damage or destroy" endangered plant species on any other area, that is, an area not under Federal jurisdiction, provided the act was done in knowing violation of state law.

ESA plant protections differ from fish and wildlife in another respect: section 10—allowing a private party to apply for an incidental take permit—applies only to fish and wildlife; there is no section 10 incidental take permit provision for endangered plants. See 16 U.S.C. § 1539(a)(1)(B) (providing that the Fish and Wildlife Service may permit "any taking otherwise prohibited by section 1538(a)(1)(B) [prohibiting the harming of fish and wildlife] ... if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity").

Plaintiffs have filed this action under the plant protections of section 9. They allege that Wilcox and Cooley "removed and reduced to possession" endangered meadowfoam from "an area under Federal jurisdiction" and that even if the Site is not under Federal jurisdiction within the meaning of the ESA, Wilcox and Cooley (with assistance from the Schellinger defendants) harmed the meadowfoam in knowing violation of California law....

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8 practice notes
  • Schellinger Brothers v. City of Sebastopol, No. A122972.
    • United States
    • California Court of Appeals
    • December 2, 2009
    ...until 2008 that the question was conclusively answered in the negative. (See Northern California River Watch v. Wilcox (N.D. Cal. 2008) 547 F.Supp.2d 1071 [summary judgment granted Schellinger and Department of Fish and Game employees on ground of no federal jurisdiction under federal Clean......
  • Ctr. for Biological Diversity v. Bureau of Land Mgmt., No. C 03–02509 SI
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • April 3, 2014
    ...that requires a Section 7 safe harbor provision.Id. at 1239–40.Defendants also rely on Northern California River Watch v. Wilcox, 547 F.Supp.2d 1071 (N.D.Cal.2008). In that case, Judge Breyer noted that “[S]ection 10—allowing a private party to apply for an incidental take permit—applies on......
  • Ctr. for Biological Diversity v. Bureau of Land Mgmt., No. 14–15836
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 15, 2016
    ...Defendants are correct that ‘such take cannot occur, and no incidental take statement is needed.’ ”); N. Cal. River Watch v. Wilcox , 547 F.Supp.2d 1071, 1075 (N.D. Cal. 2008), aff'd , 633 F.3d 766 (9th Cir. 2010) (“[S]ection 10—allowing a private party to apply for an incidental take permi......
  • Northern Cal. River Watch v. Wilcox, No. 08–15780.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • January 26, 2011
    ...grasslands containing seasonal vernal pools, wetlands, seasonal creeks, vernal pools, and vernal swales. N. Cal. River Watch v. Wilcox, 547 F.Supp.2d 1071, 1072–73 (N.D.Cal.2008). The Site sits adjacent to the Laguna de Santa Rosa, a tributary of the Russian River. Id. at 1073; see also Rus......
  • Request a trial to view additional results
8 cases
  • Schellinger Brothers v. City of Sebastopol, No. A122972.
    • United States
    • California Court of Appeals
    • December 2, 2009
    ...until 2008 that the question was conclusively answered in the negative. (See Northern California River Watch v. Wilcox (N.D. Cal. 2008) 547 F.Supp.2d 1071 [summary judgment granted Schellinger and Department of Fish and Game employees on ground of no federal jurisdiction under federal Clean......
  • Ctr. for Biological Diversity v. Bureau of Land Mgmt., No. C 03–02509 SI
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • April 3, 2014
    ...that requires a Section 7 safe harbor provision.Id. at 1239–40.Defendants also rely on Northern California River Watch v. Wilcox, 547 F.Supp.2d 1071 (N.D.Cal.2008). In that case, Judge Breyer noted that “[S]ection 10—allowing a private party to apply for an incidental take permit—applies on......
  • Ctr. for Biological Diversity v. Bureau of Land Mgmt., No. 14–15836
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 15, 2016
    ...Defendants are correct that ‘such take cannot occur, and no incidental take statement is needed.’ ”); N. Cal. River Watch v. Wilcox , 547 F.Supp.2d 1071, 1075 (N.D. Cal. 2008), aff'd , 633 F.3d 766 (9th Cir. 2010) (“[S]ection 10—allowing a private party to apply for an incidental take permi......
  • Northern Cal. River Watch v. Wilcox, No. 08–15780.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • January 26, 2011
    ...grasslands containing seasonal vernal pools, wetlands, seasonal creeks, vernal pools, and vernal swales. N. Cal. River Watch v. Wilcox, 547 F.Supp.2d 1071, 1072–73 (N.D.Cal.2008). The Site sits adjacent to the Laguna de Santa Rosa, a tributary of the Russian River. Id. at 1073; see also Rus......
  • Request a trial to view additional results

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