Yuba River Citizens League v. Nat. Mar. Fisheries, CIV. S-06-2845 LKK/JFM.

• Decision Date: 05 May 2009
• Docket Number: No. CIV. S-06-2845 LKK/JFM.,CIV. S-06-2845 LKK/JFM.
• Citation: 629 F.Supp.2d 1123
• Parties: SOUTH YUBA RIVER CITIZENS LEAGUE and Friends of the River, Plaintiffs, v. NATIONAL MARINE FISHERIES SERVICE, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

629 F.Supp.2d 1123

SOUTH YUBA RIVER CITIZENS LEAGUE and Friends of the River, Plaintiffs, v. NATIONAL MARINE FISHERIES SERVICE, et al., Defendants.

No. CIV. S-06-2845 LKK/JFM.

United States District Court, E.D. California.

May 5, 2009.

Brian Orion, Christopher Alan Sproul, Environmental Advocates, San Francisco, CA, Patricia Lynn Weisselberg, Law Offices of Patricia Weisselberg, Mill Valley, CA, for Plaintiffs.

Bradley H. Oliphant, Lawson Fite, United States Department of Justice, Washington,

DC, Yoshinori H. T. Himel, United States Attorney's Office, Howard F. Wilkins, III, Whitman F. Manley, Remy, Thomas, Moose and Manley, Sacramento, CA, for Defendants.

ORDER

LAWRENCE K. KARLTON, Senior District Judge.

Plaintiff environmental groups bring various claims arising primarily out of the structure and operation of two dams on the South Yuba River. The Sixth Amended Complaint brings claims under the Administrative Procedures Act ("APA") and the Endangered Species Act's ("ESA") citizen suit provision, alleging that the various defendants violated provisions of the ESA.

Plaintiffs' fourth claim for relief alleges that the Army Corps of Engineers violated the ESA's prohibition on "take" of protected species in its operation and licensing of the two dams. The National Marine Fisheries Service issued an "incidental take statement" ("ITS") for these operations, which serves to shield the Corps from liability for take provided that the Corps complies with the ITS.

Plaintiffs allege that the Corps is liable notwithstanding this ITS, because either the ITS itself is invalid, or because the Corps has failed to comply with the terms of the ITS. The federal defendants' present motion argues that the latter of these allegations cannot support an ESA citizen suit. Accordingly, federal defendants move to dismiss this aspect of plaintiff's fourth claim. Defendants' motion is brought as a motion to dismiss for lack of subject matter jurisdiction, arguing that plaintiffs' claim exceeds the scope of the waiver of sovereign immunity effectuated by the ESA.

I. BACKGROUND

A. Statutory Background

Although this court has often repeated the contours of the ESA, another review of this terrain is appropriate. The obligations imposed by the ESA are discussed in this section, and are not disputed by the parties. The ESA's various enforcement mechanisms, whose scope and interactions are disputed, are discussed in the analysis section below.

The ESA's core protection is section 9's prohibition of "take" of a protected species by any person. ESA § 9(a), 16 U.S.C. § 1538(a). "Take" includes acts that "harm" individual protected organisms, including such harm caused by habitat modifications. ESA § 3(19); 16 U.S.C. § 1532(19); see also Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 708, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995), id. at 713, 115 S.Ct. 2407 (O'Connor, J., concurring). This prohibition applies to private parties as well as state and federal agencies.

Section 7 of the ESA applies to federal agencies, and operates to both impose further requirements on federal actions and to exclude some federal acts from the scope of section 9. Every federal agency, before undertaking an "action authorized, funded, or carried out by" that agency, must ensure that the action is not likely to jeopardize the continued existence of a protected species or harm the critical habitat of a protected species. ESA § 7(a)(2); 16 U.S.C. § 1536(a)(2). When effects on protected species are likely, the agency must go through a formal consultation process with the Fish and Wildlife Service or National Marine Fisheries Service ("NMFS").¹ Here, this process directed NMFS to prepare a "biological opinion" ("BiOp"). ESA § 7(b)(3); 16 U.S.C. § 1536(b)(3).

If a BiOp concludes that the proposed action (or its reasonable and prudent alternative) will cause incidental taking of protected species, but that despite this taking, the action will not jeopardize the species or threaten critical habitat, NMFS

shall provide the Federal agency and the applicant concerned, if any with a written statement that—

(i) specifies the impact of such incidental taking on the species,

(ii) specifies those reasonable and prudent measures that the Secretary considers necessary or appropriate to minimize such impact,

(iii) . . ., and

(iv) sets forth the terms and conditions (including, but not limited to, reporting requirements) that must be complied with by the Federal agency or applicant (if any), or both, to implement the measures specified under clauses (ii) and (iii).

ESA § 7(b)(4); 16 U.S.C. § 1536(b)(4). This statement is referred to as an "Incidental Take Statement" ("ITS"). Section 7 further provides that "any taking that is in compliance with the terms and conditions specified in a written [ITS] ... shall not be considered to be a prohibited taking of the species concerned." ESA § 7(o)(2); 16 U.S.C. § 1536(o)(2).

A related provision, not directly at issue in this case but interpreted by cases cited by defendants, governs incidental take by private parties. Section 10 of the ESA authorizes FWS and NMFS to issue an incidental take permit ("ITP") "under such terms and conditions as [the service] may prescribe." ESA § 10(a)(1); 16 U.S.C. § 1539(a)(1). As with incidental take statements, incidental take permits may excuse take that "is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." ESA § 10(a)(1)(B); 16 U.S.C. § 1539(a)(1)(B). An applicant for an ITP must submit a habitat conservation plan demonstrating that, inter alia, the take "will not appreciably reduce the likelihood of the survival and recovery [of the species] in the wild." ESA § 10(a)(2)(B)(iv).

B. Factual Background

This case focuses on the operation of the Daguerre and Engelbright dams on the Yuba River. Both dams allegedly harm three fish species—the central valley spring-run Chinook, central valley Steelhead and Green Sturgeon—by causing take of individual fish and by jeopardizing the continued existence of the species.

Both dams are maintained and operated by defendant Army Corps of Engineers ("Corps"), and the plaintiffs challenge the Corps' operation of these dams. As an adjunct to these dams, the Corps authorizes other entities to operate other diversions along the river. One such diversion is challenged in this suit, the South Yuba-Brophy Diversion, owned and operated by defendant Yuba County Water Agency ("YCWA").

NMFS has issued a series of three BiOps, each accompanied by an ITS, for the dams and associated diversions. Only the most recent, issued in November of 2007, is at issue in the present motion. The November 2007 ITS imposes the following conditions on the Corps, as summarized by the federal defendants:

1. Develop and implement a long-term gravel augmentation program within three years;

2. Develop and implement, within four years, a program to replenish large woody material in the lower Yuba River 3A. Complete the feasibility study for improving fish passage at Daguerre Point Dam within five years;

3B. Commence implementing the preferred fish passage alternative at Daguerre within ten years;

4. Continue the current fish ladder clearing and sediment management programs until the large woody material replenishment program is implemented; and

5. Diligently pursue the ongoing effort to fully screen the South Yuba-Brophy irrigation diversion to meet all DFG and NMFS screening criteria.

Plaintiffs' fourth claim in the Sixth Amended Complaint alleges that notwithstanding the ITS, the Corps is liable for causing take of protected species in violation of section 9 of the ESA. As discussed above, this claim alleges two theories of liability. The theory challenged by the federal defendants alleges that:

the Corps's operation and/or licensing of the Project has not (a) complied with these BiOps' terms and conditions, (b) met the ecological surrogates of the April 2007 BiOp and November 2007 BiOp, and included implementation of the conservation and restoration measures specified in the April 2007 BiOp and November 2007 BiOp. Accordingly, the Corps has lost any authorization for its take of the Listed Species that could be provided by the BiOps and their attendant ITS and the Corps' take of the Listed Species has necessarily been non-incidental and unlawful.

Sixth Amended Complaint, ¶ 112. The complaint then enumerates a variety of ways in which the operation and licensing of the project has allegedly caused take. Those allegations are not at issue in the present motion.

II. STANDARD FOR A FED. R. CIV. P. 12(b)(1) MOTION TO DISMISS

It is well established that the party seeking to invoke the jurisdiction of the federal court has the burden of establishing that jurisdiction exists. KVOS, Inc. v. Associated Press, 299 U.S. 269, 278, 57 S.Ct. 197, 81 L.Ed. 183 (1936); Assoc. of American Medical Colleges v. United States, 217 F.3d 770, 778-779 (9th Cir. 2000). On a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), the standards that must be applied vary according to the nature of the jurisdictional challenge.

Here, the challenge to jurisdiction is a facial attack. That is, the federal defendants contend that the allegations of jurisdiction contained in the complaint are insufficient on their face to demonstrate the existence of jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004). In a Rule 12(b) (1) motion of this type, the plaintiff is entitled to safeguards similar to those applicable when a Rule 12(b)(6) motion is made. See Sea Vessel Inc. v. Reyes, 23 F.3d 345, 347 (11th Cir.1994), Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir.1990); see also 2-12 Moore's Federal Practice—Civil § 12.30 (2009). The factual allegations of the complaint are presumed to be true, and the motion is granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction....