White v. United States Army Corps of Eng'rs
| Decision Date | 03 March 2023 |
| Docket Number | 22-cv-06143-JSC |
| Parties | SEAN K WHITE, Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
Re: Dkt. No. 15
Plaintiff brings this lawsuit under the Endangered Species Act of 1973. He alleges Defendants failed to comply with that law and are unlawfully “taking” protected salmon species. Defendants move to dismiss, arguing Plaintiff's claims are “prudentially moot” because the Army Corps have reinstituted the consultation process with the National Marine Fisheries Service. In the alternative, Defendants request the Court stay the matter pending that processes' completion. After reviewing the papers submitted and having had the benefit of oral argument on March 2, 2023, the Court DENIES Defendants' motion. A live controversy remains and a stay is not warranted at this time.
The Endangered Species Act of 1973 (“ESA”) “contains a variety of protections designed to save from extinction species that the Secretary of the Interior designates as endangered or threatened.” Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 690 (1995) (citing 16 U.S.C. § 1531). Through the ESA, “Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities, thereby adopting a policy which it described as ‘institutionalized caution.'” Tennessee Valley Auth. v. Hill, 437 U.S. 153, 194 (1978). Two ESA provisions (and their accompanying regulations) are relevant here: Section 7 and Section 9.
Section 7(a)(2) is “the heart of the ESA.” W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 495 (9th Cir. 2011). It requires federal agencies to ensure any action they authorize, fund, or carry out “is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitats.” 16 U.S.C. § 1536(a)(2).
Specifically, “Section 7 imposes on all agencies a duty to consult with either the Fish and Wildlife Service or the [National Oceanic and Atmospheric Administration's] Fisheries Service before engaging in any discretionary action that may affect a listed species or critical habitat.” Karuk Tribe of California v. U.S. Forest Serv., 681 F.3d 1006, 1020 (9th Cir. 2012). Consultation can be either formal or informal. 50 C.F.R. §§ 402.13, 402.14. If, after a “Biological Assessment,” an agency determines its action “is not likely to adversely affect any listed species or critical habitat” and the consulting agency agrees in writing, informal consultation is complete and no further action is required. Id. § 402.13(a). But if either the acting agency or the consulting agency deems the action is “likely to adversely affect” a listed species or its critical habitat, the agency considering an action must engage in “formal consultation” with the consulting agency. Id. § 402.14(b)(1).
Formal consultation begins when an agency transmits a written request to the consulting agency containing all relevant data required under 50 C.F.R. § 402.14(c). In response, the consulting agency must prepare a biological opinion “detailing how the agency action affects the species or its critical habitat.” 16 U.S.C. 1536(b)(4). The opinion must also determine whether the action is likely to “jeopardize the continued existence of” a listed species or destroy or adversely modify critical habitats. 50 C.F.R. § 402.14(h). When formal consultation concludes, the consulting agency issues its biological opinion regarding the likelihood of jeopardy to the listed species or of destruction or adverse modification of critical habitats. Id. § 402.14(e).
ESA Section 9 makes it unlawful for any person to “take” endangered species or engage in other prohibited acts regarding species protected under the ESA. 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); see also Ctr. for Biological Diversity v. Bureau of Land Mgmt., 833 F.3d 1136, 1141-42 (9th Cir. 2016) (describing statutory scheme).
But not all “takes” are prohibited. Cold Mountain v. Garber, 375 F.3d 884, 888 (9th Cir. 2004), as amended (Aug. 9, 2004). If, after consultation under Section 7, the consulting agency finds an agency action does not jeopardize a species but may result in “incidental take,” a consulting agency issues an “incidental take statement.” Id. Any taking in compliance with an incidental take statement's terms and conditions is then exempt from the general take prohibition of ESA Section 9. 16 U.S.C. § 1536(b)(4)(iv), (o)(2).
The Coyote Valley Dam is an earthen dam that impounds water from the East Fork of the Russian River and water imported from the Eel River watershed. (Dkt. No. 1 ¶ 33.) The City of Ukiah, California lies immediately below the dam. (Id.) Prior to the dam's construction, Ukiah suffered from floods during high periods of rain. (Id.) The Army Corps completed the dam in 1957 and manage it today. (Id.) The ability to capture especially high flood flows behind the dam prevents large-scale flooding in Ukiah. (Id.)
Consistent with the Endangered Species Act, the Army Corps requested a biological opinion (“the 2008 Opinion”) from the National Marine Fisheries Service regarding the impact of the dam's flood control operations on listed species. (Id. ¶ 34; see also Dkt. No. 1-1.) The National Marine Fisheries Service determined the operations were likely to affect three species of endangered or threatened “salmonids.” (Id. ¶¶ 34-35; Dkt. No. 1-1 at 11.)
Relevant here, the 2008 Opinion identified a risk from “turbid water.” (Id.) In short, when the Coyote Valley Dam releases water, that water may have high sediment levels. (Dkt. No. 1 ¶ 55.)
Such sediment “can directly affect salmonids by abrading and clogging gills, and indirectly cause reduced feeding, avoidance reactions, destruction of food supplies, reduced egg and alevin survival, and changed rearing habitat.” (Dkt. No. 1-1 at 75.) The 2008 Opinion anticipated turbidity from the Coyote Valley Dam would adversely impact the listed salmonids, but “the precise magnitude of the impact, while expected to be low, [was] unknown.” (Id. at 341.)
The National Marine Fisheries Service then provided the Army Corps with an “Incidental Take Statement.” (Dkt. No. 1 ¶ 36.) That statement covered “taking of listed salmonids that is likely to occur due to the implementation of [the Army Corp's proposed operations].” (Id.) But the Incidental Take Statement included eight “Reasonable and Prudent Measures” deemed “necessary and appropriate to minimize the likelihood of take on [the listed salmonids].” (Id.) The Incidental Take Statement emphasized that to remain eligible for the Endangered Species Act exemption under Section 7(o)(2), the Reasonable and Prudent Measures “must be undertaken” and were “nondiscretionary.” (Dkt. No. 1-1 at 315.)
Reasonable and Prudent Measure No. 4 (“Measure 4”) addressed turbidity. (Id. at 340.) It contained ten “Terms and Conditions.” (Id. at 341-342.) These terms include conducting a “bathymetric survey of Lake Mendocino” to determine if dredging is a reasonable alternative to reduce turbidity levels within two years; installing turbidity meters in specific locations before 2009; publishing turbidity data for 10 years; reporting on turbidity monitoring; analyzing turbidity data to determine if flood control operations increase turbidity; submitting that data to the Fisheries Service annually; drafting a plan to minimize any adverse effects found on the relevant species; and implementing plans to minimize and avoid adverse effects by 2014. (Id.) Plaintiff alleges the Army Corps failed to comply with Measure 4 other than (belatedly) completing the bathymetric survey. (Dkt. No. 1 ¶¶ 42-53.)
Plaintiff is a resident of Ukiah, California. (Id. ¶ 9.) Plaintiff sent Defendants a “Sixty-Day Notice of Violation of the Endangered Species Act” on August 1, 2022. (Dkt. No. 21-1.) The notice identified Defendants' alleged failure to comply with Measure 4. Plaintiff asserted that because Defendant failed to comply with Measure 4, Defendants had violated Sections 9 and 7 of the ESA. Thus, Plaintiff indicated he would file suit for declaratory and injunctive relief under the ESA to prevent further “unauthorized take” of the listed salmonids below the dam.
On October 18, 2022, Plaintiff filed suit under the ESA's citizen suit provision. 16 U.S.C. 1540(g). Plaintiff alleged Defendants are in violation of ESA Section 7 and the Administrative Procedure Act (“APA”) § 706. (Dkt. No. 1 ¶¶ 82-88.) And Plaintiff alleged Defendants are in violation of ESA Section 9 because Defendants' failure to abide by the Incidental Take Statement voids Defendants' exemption from the ESA's take prohibition and makes their actions an “unauthorized take” of the listed species. (Id. ¶¶ 78-81.)
Plaintiff requests four forms of relief in the complaint: (1) declaratory relief that the Army Corps is violating Section 9 of the ESA's prohibition against unauthorized take through flood control operations at the Dam; (2) an injunction against Lt. Spellmon, Chief of Engineers, from continuing to make releases of water from Coyote Valley Dam where such releases will cause unauthorized take of listed salmonids; (3) an injunction ordering Defe...
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