JOHN C. CRUDEN, Assistant Attorney General SETH M. BARSKY ... · 3:16-cv-04294-WHO 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JOHN C. CRUDEN, Assistant

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Defendants’ Motion to Dismiss Or, In the Alternative, to Stay

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JOHN C. CRUDEN, Assistant Attorney General Environment & Natural Resources Division SETH M. BARSKY, Chief S. JAY GOVINDAN, Assistant Chief ROBERT P. WILLIAMS, Sr. Trial Attorney U.S. Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section Ben Franklin Station, P.O. Box 7611 Washington, D.C. 20044-7611 Tel: 202-305-0206; Fax: 202-305-0275 Attorneys for Federal Defendants

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

HOOPA VALLEY TRIBE, Plaintiff, v. U.S. BUREAU OF RECLAMATION and NATIONAL MARINE FISHERIES SERVICE, Defendants.

) ) ) ) ) ) ) ) ) ) ))) )

CASE NO. 3:16-cv-04294-WHO FEDERAL DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS OR, IN THE ALTERNATIVE, TO STAY Date: November 16, 2016 Time: 2:00 p.m. Judge: Honorable William H. Orrick Location: Courtroom 2, 17TH Floor

Case 3:16-cv-04294-WHO Document 33 Filed 10/05/16 Page 1 of 34

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Defendants’ Motion to Dismiss Or, In Alternative, to Stay

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NOTICE OF MOTION AND MOTION TO DISMISS

PLEASE TAKE NOTICE that on November 16, 2016, at 2:00 p.m., or as soon thereafter

as the parties may be heard, in the courtroom of the Honorable William H. Orrick, located in the

United States District Court for the Northern District of California, 450 Golden Gate Avenue,

San Francisco, CA 94102, Defendants U.S. Bureau of Reclamation and National Marine

Fisheries Service will move to dismiss the above-captioned complaint pursuant to Federal Rules

of Civil Procedure 12(b)(1) and 12(b)(6) or, in the alternative, to enter a stay of the proceedings

until April 24, 2017.

As explained more fully in the accompanying memorandum of points and authorities,

dismissal of the above-captioned complaint is warranted because it asserts causes of action that

are not – either in whole or in part – cognizable claims for relief that properly invoke the limited

subject matter jurisdiction of this Court (i.e., Counts I, III, and IV), and others that are

prudentially moot (i.e., Counts I and II (and, in the alternative, Count IV)) because the agencies

are in the midst of administrative processes that could narrow the existing dispute, if not

eliminate it altogether, without judicial intervention. These processes are expected to conclude

by April 24, 2017. Should the Court determine that dismissal of Counts I, II, and IV is not

appropriate at this time, it should, in the alternative, stay those claims until April 24, 2017, when

the factual record will be more fully developed.

Dated: October 5, 2016

Respectfully submitted, /s/ Robert P. Williams ROBERT P. WILLIAMS, Sr. Trial Attorney U.S. Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section Ben Franklin Station, P.O. Box 7611 Washington, D.C. 20044-7611 Tel: 202-305-0206; Fax: 202-305-0275 [email protected] Attorneys for Federal Defendants


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JOHN C. CRUDEN, Assistant Attorney General Environment & Natural Resources Division SETH M. BARSKY, Chief S. JAY GOVINDAN, Assistant Chief ROBERT P. WILLIAMS, Sr. Trial Attorney U.S. Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section Ben Franklin Station, P.O. Box 7611 Washington, D.C. 20044-7611 Tel: 202-305-0206; Fax: 202-305-0275 Attorneys for Federal Defendants

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

HOOPA VALLEY TRIBE, Plaintiff, v. U.S. BUREAU OF RECLAMATION and NATIONAL MARINE FISHERIES SERVICE, Defendants.

) ) ) ) ) ) ) ) ) ) ))) )

CASE NO. 3:16-cv-04294-WHO MEMORANDUM IN SUPPORT OF FEDERAL DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, TO STAY Date: November 16, 2016 Time: 2:00 p.m. Judge: Honorable William H. Orrick Location: Courtroom 2, 17TH Floor


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Mem. Supp. Fed. Defs’ Mot. to Dismiss Or, In Alternative, to Stay

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TABLE OF CONTENTS

PAGE

I. INTRODUCTION AND STATEMENT OF ISSUES TO BE DECIDED ............................ 1

II. STATUTORY BACKGROUND............................................................................................ 2

A. Endangered Species Act ..................................................................................................... 2

B. Magnuson-Stevens Act ....................................................................................................... 4

III. FACTUAL AND PROCEDURAL BACKGROUND............................................................ 5

IV. STANDARD OF REVIEW ON MOTION TO DISMISS ..................................................... 7

V. ARGUMENT .......................................................................................................................... 8

A. Counts I, III, and IV Should Be Dismissed For Lack of Jurisdiction and/or Failure to State a Claim Upon Which Relief Can Be Granted ........................................... 8

1. Count I Does Not Assert a Cognizable Claim Against NMFS Because the ESA Citizen Suit Provision Does Not Provide Jurisdiction to Sue NMFS In Its Capacity as an Administrator of the ESA, And Also Because NMFS Has No Legal Duty to Reinitiate Consultation ............................................................... 8 2. Count III Is Not Cognizable Because NMFS, In Its Role As a Consulting Agency, Cannot Have Committed Any “Take” of Coho Salmon As Alleged, and Also Because the ESA’s Citizen Suit Provision Does Not Provide Jurisdiction to Sue for Wholly Past Alleged Violations ............................................... 13 3. Count IV Is Not Cognizable Because Section 305(b)(4)(B) of the MSA, On Its Face, Imposes No Legal Duty on NMFS ........................................................... 17

B. Counts I and II (and, In the Alternative, Count IV) Should Be Dismissed As Prudentially Moot Or, In the Alternative, Stayed Out of Deference to Ongoing Administrative Action ........................................................................................ 19

1. Counts I, II, and IV Are Prudentially Moot .................................................................. 19 2. If the Court Does Not Dismiss Counts I, II, and IV, It Should Stay Them Until the Ongoing Agency Deliberations Are Complete .............................................. 22

VI. CONCLUSION ..................................................................................................................... 25


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TABLE OF AUTHORITIES

CASES PAGE Abbott Labs. v. Gardner,

387 U.S. 136 (1967) .................................................................................................................. 23 A.L. Mechling Barge Lines v. United States, 368 U.S. 324 (1961) ............................................................................................................ 20, 21 Am. Littoral Soc’y v. EPA,

199 F. Supp. 2d 217 (D. N.J. 2002) .......................................................................................... 22 Ashcroft v. Iqbal,

556 U.S. 662 (2009) ........................................................................................................ 8, 13, 14 Augustine v. United States,

704 F.2d 1074 (9th Cir. 1983) .................................................................................................... 7 Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) .................................................................................................................... 8 Bennett v. Spear,

520 U.S. 154 (1997) .......................................................................................................... 8, 9, 14 Chamber of Commerce v. U.S. Dep't of Energy,

627 F.2d 289 (D.C. Cir. 1980) ............................................................................................ 20, 21 Conservation Force v. Salazar,

677 F. Supp. 2d 1203 (N.D. Cal. 2009) ...................................................................................... 9 Coos County Bd. of County Comm’rs v. Kempthorne,

531 F.3d 792 (9th Cir. 2008) ...................................................................................................... 9 Ctr. for Marine Conserv’n v. Brown,

917 F. Supp. 1128 (S.D. Tex. 1996) ......................................................................................... 21 Defs. of Wildlife v. Martin, 454 F. Supp. 2d 1085 (E.D. Wash. 2006) .................................................................................. 21 Defs. of Wildlife v. Flowers, 414 F.3d 1066 (9th Cir. 2005) .................................................................................................. 11 Forest Conservation Council v. Rosboro Lumber Co.,

50 F.3d 781 (9th Cir. 1995) .......................................................................................... 15, 16, 17


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Fox v. Palmas Del Mar Properties, 620 F. Supp. 2d 250 (D.P.R. 2009) ......................................................................... 13, 14, 16, 17

Friends of Merrymeeting Bay v. Topsham Hydro Partners Ltd. P’ship,

2013 WL 145623 (D. Me. Jan. 14, 2013) ................................................................................. 17 Friends of Merrymeeting Bay v. U.S. Dep’t of Commerce,

810 F. Supp. 2d 320 (D. Me. 2011) .......................................................................................... 11 Greenpeace Found. v. Mineta,

122 F. Supp. 2d 1123 (D. Haw. 2000) ...................................................................................... 21 Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found.,

484 U.S. 49 (1987) ........................................................................................................ 14, 16, 17 Hunt v. Imperial Merch. Servs.,

560 F.3d 1137 (9th Cir. 2009) .................................................................................................. 21 Karuk Tribe of Cal. v. U.S. Forest Serv.,

681 F.3d 1006 (9th Cir. 2012) .................................................................................................. 11 Kokkonen v. Guardian Life Ins. Co.,

511 U.S. 375 (1994) .................................................................................................................... 7 Leyva v. Certified Grocers of Cal.,

593 F.2d 857 (9th Cir. 1979) .................................................................................................... 22 Lockyer v. Mirant Corp.,

398 F.3d 1098 (9th Cir. 2005) .................................................................................................. 22 Los Angeles County v. Davis,

440 U.S. 625 (1979) .................................................................................................................. 21 Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) .................................................................................................................. 16 Mayo v. Jarvis,

2016 WL 1254213 (D.D.C. Mar. 29, 2016) ................................................................... 3, 23, 24 McCarthy v. United States,

850 F.2d 558 (9th Cir. 1988) ...................................................................................................... 7 Miccosukee Tribe v. United States,

430 F. Supp. 2d 1328 (S.D. Fla. 2006) ....................................................................................... 9


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Nat’l Parks Conserv. Ass’n v. U.S. Army Corps of Eng’rs, 574 F. Supp. 2d 1314 (S.D. Fla. 2008) ..................................................................................... 17 Nat’l Wildlife Fed’n v. Harvey,

440 F. Supp. 2d 940 (E.D. Ark. 2006) ........................................................................................ 9 Norton v. S. Utah Wilderness Alliance,

542 U.S. 55 (2004) .................................................................................................. 10, 14, 18, 24 Ohio Forestry Ass’n v. Sierra Club,

523 U.S. 726 (1998) .................................................................................................................. 23 Or. Nat. Desert Ass’n v. U.S. Forest Serv.,

2007 WL 1072112 (D. Or. Apr. 3, 2007) ................................................................................. 21 Oregon Nat. Res. Council v. Keys,

2004 WL 1048168 (D. Or. May 7, 2004) ................................................................................. 21 Oregon Trawlers Ass’n v. Gutierrez,

452 F.3d 1104 (9th Cir. 2006) .................................................................................................. 17 Pac. Coast Fed’n of Fishermen’s Ass’ns,

606 F. Supp. 2d 1122 (E.D. Cal. 2008) .................................................................................... 11 Protect Our Water v. Flowers,

377 F. Supp. 2d 844 (E.D. Cal. 2004) ...................................................................................... 12 Pyramid Lake Paiute Tribe of Indians v. U.S. Dep’t of Navy,

898 F.2d 1410 (9th Cir. 1990) .................................................................................................... 3 Reeve Aleutian Airways v. United States,

889 F.2d 1139 (D.C. Cir. 1989) ................................................................................................ 20 Roberts v. Corrothers,

812 F.2d 1173 (9th Cir. 1987) .................................................................................................... 7 Savage v. Glendale Union High School,

343 F.3d 1036 (9th Cir. 2003) .................................................................................................... 8 Sierra Club v. Marsh,

816 F.2d 1376 (9th Cir. 1987) .................................................................................................. 12 Smith v. Rossotte,

250 F. Supp. 2d 1266 (D. Or. 2003) ........................................................................................... 7


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Southern Utah Wilderness Alliance v. Smith, 110 F.3d 724 (10th Cir. 1997) .................................................................................................. 21

Souza v. Cal. Dep't of Transp.,

2014 WL 793644 (N.D. Cal. Feb. 26, 2014) ...................................................................... 18, 19 St. Clair v. City of Chico,

880 F.2d 199 (9th Cir. 1989) ...................................................................................................... 7 Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998) .................................................................................................. 13, 16, 17, 22 Stock West v. Confederated Tribes of the Colville Reservation,

873 F.2d 1221 (9th Cir. 1989) .................................................................................................... 7 Sw. Ctr. for Biological Diversity v. U.S. Forest Serv.,

82 F. Supp. 2d 1070 (D. Ariz. 2000) ........................................................................................ 22 Thornhill Pub. Co. v. Gen. Tel. & Electronics Corp.,

594 F.2d 730 (9th Cir. 1979) ...................................................................................................... 7 Tosco Corp. v. Cmtys. for a Better Env’t,

236 F.3d 495 (9th Cir. 2001) ...................................................................................................... 7 Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council,

435 U.S. 519 (1978) .................................................................................................................. 24 Water Keeper Alliance v. U.S. Dep't of Def., 271 F.3d 21 (1st Cir. 2001) ......................................................................................................... 3

STATUTES

5 U.S.C. § 702 ............................................................................................................................... 18

5 U.S.C. § 704 ............................................................................................................... 8, 10, 14, 16

5 U.S.C. § 706 ............................................................................................................... 8, 10, 16, 17

5 U.S.C. § 706(1) .................................................................................................................... 10, 18

16 U.S.C. § 1532(15) ...................................................................................................................... 2

16 U.S.C. § 1532(19) ................................................................................................................ 4, 13

16 U.S.C. § 1536(a)(2) .......................................................................................................... 2, 9, 10

16 U.S.C. § 1536(b)(1)(A) ........................................................................................................ 4, 23


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16 U.S.C. § 1536(b)(4)(iv) .............................................................................................................. 4

16 U.S.C. § 1538(a)(1)(B) .............................................................................................................. 4

16 U.S.C. § 1540(g) ........................................................................................................................ 8

16 U.S.C. § 1540(g)(1)(A) ............................................................................................ 9, 10, 14, 16

16 U.S.C. § 1801 ............................................................................................................................. 4

16 U.S.C. § 1802(39) .................................................................................................................... 18

16 U.S.C. § 1855 ........................................................................................................................... 17

16 U.S.C. § 1855(b)(2) ................................................................................................................. 18

16 U.S.C. § 1855(b)(4)(B) ...................................................................................................... 17, 18

16 U.S.C. § 1855(f) ....................................................................................................................... 17

16 U.S.C. § 1855(f)(1) .................................................................................................................. 17

33 U.S.C. § 1365(a)(1) .................................................................................................................. 14

FEDERAL REGULATIONS

50 C.F.R. § 223.203 ........................................................................................................................ 4

50 C.F.R. § 402.13(a)................................................................................................................ 3, 19

50 C.F.R. § 402.14(a).................................................................................................................... 10

50 C.F.R. § 402.14(a)-(b)................................................................................................................ 3

50 C.F.R. § 402.14(b)(1) ................................................................................................................. 3

50 C.F.R. §§ 402.14(i)(4).............................................................................................................. 11

50 C.F.R. § 402.15(a)................................................................................................................ 3, 11

50 C.F.R. § 402.16 .......................................................................................................... 3, 4, 12, 23

50 C.F.R. § 600.920 ........................................................................................................................ 5

50 C.F.R. § 600.920(a)(1) ............................................................................................................. 18

50 C.F.R. § 600.920(e).................................................................................................................... 5

FEDERAL REGISTER

51 Fed. Reg. 19,926 (June 3, 1986) .............................................................................................. 11


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I. INTRODUCTION AND STATEMENT OF ISSUES TO BE DECIDED

The complaint in the above-captioned matter asks this Court to enjoin the U.S. Bureau of

Reclamation (“Reclamation”) from making water deliveries from the Klamath Irrigation Project

(“Klamath Project”) that Plaintiff believes could cause “take” of Southern Oregon/Northern

California Coast (“SONCC”) coho salmon, a species listed as “threatened” under the Endangered

Species Act (“ESA”). Three of the four causes of action that Plaintiff has alleged in the

complaint, however, are not cognizable legal claims that could support the imposition of such

relief. Specifically, Counts I, III, and IV are pled against the National Marine Fisheries Service

(“NMFS”), an agency that does not authorize, fund, or operate the Klamath Project. As pled

against NMFS, these claims do not challenge a requisite final agency action or the failure to

undertake a discrete, mandatory legal duty. These claims therefore are not legally cognizable

and should be dismissed. Count III also is subject to dismissal because it is based on wholly past

alleged violations of the ESA. Count III alleges that Reclamation exceeded its incidental take

limit for coho 2014 and 2015, but does not (and cannot) allege that Reclamation is exceeding the

limit in 2016. The ESA does not provide a cause of action to sue for wholly past alleged

violations, and as such the factual allegations made in support of Count III, even if true, fail to

articulate a cognizable claim for relief. As it is based on past alleged violations, Count III also

fails to present a live, concrete dispute as required by Article III of the U.S. Constitution.

Counts I and II contend that Reclamation is required to reinitiate formal ESA Section 7

consultation with NMFS in light of the extended, historic drought conditions experienced in

2014 and 2015 and the attendant incidence of fish disease; however, Reclamation has – even

before the complaint was filed – been engaged in informal Section 7 consultation with NMFS for

the purpose of determining how best to reinitiate formal consultation in light of the drought

conditions, and to account for the likelihood of similar conditions in the future. In fact, the

complaint even acknowledges that, in March 2016, pursuant to this ongoing consultation, NMFS

revisited its analysis of the effects of the Project on coho and concluded that they remain valid.

At that same time, NMFS informed Reclamation that formal reinitiated consultation can be

completed by revising Reclamation’s incidental take statement for coho prior to the 2017


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operational water year, which commences April 1, 2017. The agencies have a schedule for

completing this process, as well as consultation under the Magnuson Stevens Act (“MSA”), in

approximately six months’ time. Out of deference to these ongoing inter-agency consultations,

this Court should dismiss Counts I and II (and, in the alternative, Count IV) as prudentially moot.

It would not be a productive use of judicial or party resources to litigate the question of whether

ESA and MSA consultations are required when the agencies already have a schedule in place to

complete those consultations. Alternatively, should the Court conclude that dismissal of these

claims is not warranted at this time, it should stay them until April 24, 2017 to allow the agencies

to focus their resources on the completing the ongoing consultations, rather than on litigation.

When complete, the consultations could narrow or eliminate this dispute altogether without

judicial intervention.

II. STATUTORY BACKGROUND

A. Endangered Species Act

Section 7(a)(2) of the ESA requires federal agencies proposing to take an action (“action

agencies”) to ensure that 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 habitat. 16 U.S.C. § 1536(a)(2). To

ensure compliance with those mandates, the ESA’s implementing regulations outline a detailed

process whereby federal action agencies consult with the appropriate expert “consulting agency”

(either NMFS or the U.S. Fish & Wildlife Service (“FWS”), or both, depending on the species

involved)1 to, among other things, analyze the potential impacts of a proposed action on ESA-

listed species and their critical habitat.

The action agency must engage in consultation (either “informal” or “formal,” as

appropriate) if its proposed action “may affect” a listed species or critical habitat. Informal

1 Responsibility for implementing the ESA is primarily divided between the Secretary of the Interior, who is responsible for terrestrial species, and the Secretary of Commerce, who is responsible for marine species. 16 U.S.C. §§ 1532(15), 1533(a)(2). These Secretaries have delegated their responsibilities to FWS in the case of Interior and to NMFS in the case of Commerce.


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consultation is “an optional process that includes all discussions, correspondence, etc., between

the Service and the Federal agency . . . designed to assist the [action agency] in determining

whether formal consultation . . . is required.” 50 C.F.R. § 402.13(a). “If during informal

consultation it is determined by the [action agency], with the written concurrence of [the

consulting agency], that the action is not likely to adversely affect listed species or critical

habitat, the consultation process is terminated, and no further action is necessary.” 50 C.F.R. §

402.13(a), 402.14(b)(1); Water Keeper Alliance v. U.S. Dep't of Def., 271 F.3d 21, 25 (1st Cir.

2001). If, however, the action agency or the consulting agency determines that the action is

“likely to adversely affect” listed species or designated critical habitat, the agencies will then

engage in formal consultation. 50 C.F.R. § 402.13(a), 402.14(a)–(b). Formal consultation leads

to the issuance of a written biological opinion (“BiOp”) by the consulting agency that assesses

the likelihood of “jeopardy” to the species and “destruction or adverse modification” of its

critical habitat. Id. § 402.14(g)-(h).

Following consultation, the action agency must determine “whether and in what manner

to proceed with the action in light of its Section 7 obligations and the Service’s biological

opinion.” 50 C.F.R. § 402.15(a). Where a BiOp concludes that the proposed action is not likely

to jeopardize a listed species or destroy or adversely modify critical habitat, the action agency

may reasonably rely on the BiOp and proceed with the action in compliance with the ESA.

Pyramid Lake Paiute Tribe of Indians v. U.S. Dep’t of Navy, 898 F.2d 1410, 1415-16 (9th Cir.

1990) (affirming agency’s reasonable reliance on a BiOp). Reinitiation of consultation may be

required under certain enumerated circumstances. 50 C.F.R. § 402.16. While the consulting

agency can request that the action agency reinitiate consultation, the authority to reinitiate rests

solely with the action agency, as the obligation to avoid jeopardy and adverse modification of

critical habitat is borne by the action agency. Id.; see also § V.A.1, infra. “Where [as in this

case] a full BiOp already exists for a particular federal action, and an agency seeks to reinitiate

consultation with the [consulting agency], the [ESA] regulations do not specify what the product

of the reinitiated formal consultation should be.” Mayo v. Jarvis, No. CV 14-1751 (RC), 2016

WL 1254213, at *29 (D.D.C. Mar. 29, 2016), amended 2016 WL 4083308 (D.D.C. Aug. 1,


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2016); see also infra § V.B.2. Nor is there any deadline for completing reinitiated consultation.

16 U.S.C. § 1536(b)(1)(A) (consultation in the first instance “shall be concluded within the 90-

day period … or . . . within such other period of time as is mutually agreeable to the Secretary

and the Federal agency”); 50 C.F.R. § 402.16.

In addition to Section 7’s requirement that federal agencies avoid jeopardizing listed

species and destroying or adversely modifying their critical habitats, Section 9 of the ESA

prohibits the “take” of any endangered species, 16 U.S.C. § 1538(a)(1)(B), a prohibition that

NMFS has extended to the threatened SONCC evolutionarily significant unit (“ESU”) of coho

salmon, id. § 1533(d); 50 C.F.R. § 223.203. “Take” as defined by the ESA means 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). In conjunction with a BiOp produced during formal

consultation that concludes the proposed action will not cause jeopardy but may result in

incidental take of listed species, the consulting agency issues an “Incidental Take Statement”

(“ITS”) to the action agency. If a federal action results in take within the parameters of an ITS,

that take is exempt from the general take prohibition in ESA Section 9. 16 U.S.C. §

1536(b)(4)(iv), (o)(2).

B. Magnuson-Stevens Act

Congress passed the Magnuson–Stevens Fishery Conservation and Management Act, 16

U.S.C. § 1801 et seq. (“MSA”), “to take immediate action to conserve and manage the fishery

resources found off the coasts of the United States.” Id. § 1801(b)(1). To achieve these ends,

NMFS approves, implements, and enforces fishery management plans that are developed and

prepared by regional fishery management councils. Id. § 1852(h)(1). Fishery management plans

must identify essential fish habitat (“EFH”) for the fishery based on certain guidelines, minimize

adverse effects on such habitat caused by fishing, and identify other actions to encourage the

conservation and enhancement of such habitat. Id. § 1853(a)(7). EFH is defined as “those

waters and substrate necessary to fish for spawning, breeding, feeding or growth to maturity.”

Id. § 1802(10).


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Section 305(b)(2) of the MSA and its enabling regulations require action agencies to

consult with NMFS “with respect to any action authorized, funded, or undertaken, or proposed to

be authorized, funded, or undertaken, by such agency that may adversely affect any essential fish

habitat [].” Id. § 1855(b)(2); 50 C.F.R. § 600.920. The action agency initiates this consultation

by submitting an EFH assessment to NMFS. 50 C.F.R. § 600.920(e). If an action does not have

the potential to cause a substantial adverse effect on EFH, an action agency can limit its EFH

assessment to specific enumerated minimum requirements and thus engage in what are known as

the “abbreviated consultation procedures” with NMFS. Id. § 600.920(h). However, if the action

has the potential to cause a substantial adverse effect on EFH, the action agency must engage in

what is known as “expanded consultation procedures” with NMFS. Id. § 600.920(i).

III. FACTUAL AND PROCEDURAL BACKGROUND

The Secretary of the Interior authorized the development of the Klamath Project on May

15, 1905, under provisions of the Reclamation Act of 1902 (32 Stat. 388). Today, the Klamath

Basin’s hydrologic system consists of a complex of interconnected rivers, canals, lakes, marshes,

dams, diversions, wildlife refuges, and wilderness areas. U.S. Bureau of Reclamation, “Klamath

Project,” available at http://www.usbr.gov/projects/Project.jsp?proj_Name=Klamath+Project

(last visited Oct. 4, 2016). The Klamath Project covers territory in Klamath County, Oregon, and

Siskiyou and Modoc Counties in northern California. Id. The irrigable lands of the Klamath

Project are in south-central Oregon (62%) and north-central California (38%). Id. The Project

provides irrigation water to approximately 210,00 acres of cropland. Id. Two main sources

supply water for the project: Upper Klamath Lake and the Klamath River; and Clear Lake

Reservoir, Gerber Reservoir, and Lost River. Id. The total drainage area, including the Lost

River and the Klamath River watershed above Keno, Oregon, is approximately 5,700 square

miles. Id. Reclamation operates Clear Lake Dam, Gerber Dam, and the Lost River Diversion

Dam. Id. Additional dams, canals, and pumping plants are operated by private interests and

various irrigation districts in accordance with project needs. Id.

In May 2013, FWS and NMFS provided Reclamation with their respective biological

opinions on the effects of Reclamation’s operation of the Klamath Project through March 31,


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2023 on ESA-listed species and their critical habitat, including the SONCC coho salmon ESU.

“Biological Opinions on the Effects of Proposed Klamath Project Operations from May 31,

2013, through March 31, 2023, on Five Federally Listed Threatened and Endangered Species,”

(May 2013) (“2013 BiOp”) (copy attached hereto as Ex. A). As relevant here, NMFS concluded

in the 2013 BiOp that Reclamation’s proposed operation of the Klamath Project is not likely to

jeopardize the continued existence of the SONCC coho salmon ESU. Id. at 377. With the 2013

BiOp, NMFS issued Reclamation an ITS that specifies an amount or extent of incidental take of

SONCC ESU coho salmon that is anticipated to occur as a result of the proposed action and is

exempt under the ESA if the taking is in compliance with the terms and conditions of the ITS.

Id. at 378-409.

The 2013 BiOp was the culmination of a three-year-long consultation on the effects of

Reclamation’s proposed continued operation of the Klamath Project to store, divert, and convey

water to meet authorized Project purposes and contractual obligations. Id. at 4. As part of that

consultation, Reclamation provided NMFS with a biological assessment describing the proposed

action, id. at 5, and a letter revising its proposed action to further minimize adverse effects of the

Project on the SONCC coho salmon ESU and its critical habitat. The revised proposed action

consists of: (1) increasing the minimum daily Iron Gate Dam flow targets for April, May, and

June; (2) clarifying flexibility in operations regarding meeting minimum daily average flows

downstream of Iron Gate Dam; (3) clarifying that the proposed action daily modeled Iron Gate

Dam flows during high flow events will be achieved during real-time operations; (4) increasing

annual fisheries habitat restoration funding to $500,000; and (5) using adaptive management for

minimizing fish disease. Id. at 6.

Plaintiff filed the above-captioned lawsuit on July 29, 2016 (DN 1), and an amended

complaint on September 21, 2016 (DN 25). The complaint includes four causes of action.

Count I alleges that NMFS and Reclamation are in breach of a duty to reinitiate formal ESA

Section 7 consultation. Amend. Compl. ¶¶ 64-72. Count II alleges that, because Reclamation is

in breach of its duty to reinitiate consultation, it is in breach of its substantive ESA Section 7

duty to avoid jeopardizing listed species and destroying or adversely modifying their critical


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habitat. Id. ¶¶ 73-79. Count III alleges that NMFS and Reclamation have violated ESA Section

9 because Reclamation exceeded its limit for incidental take of coho in 2014 and 2015. Id. at ¶¶

80-88. Count IV alleges that NMFS is in breach of a duty to consult on EFH under the MSA.

Id. at ¶¶ 89-92.

IV. STANDARD OF REVIEW ON MOTION TO DISMISS

Federal courts are courts of limited jurisdiction, possessing only those powers specifically

granted to them by either the U.S. Constitution or Congress. Kokkonen v. Guardian Life Ins.

Co., 511 U.S. 375, 377 (1994). “A federal court is presumed to lack jurisdiction in a particular

case unless the contrary affirmatively appears.” Stock West v. Confederated Tribes of the

Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989) (citation omitted); accord Kokkonen

511 U.S. at 376-378. “When subject matter jurisdiction is challenged under Federal Rule of

Procedure 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the

motion.” Tosco Corp. v. Cmtys. for a Better Env’t, 236 F.3d 495, 499 (9th Cir. 2001). If a court

determines that it lacks subject matter jurisdiction to hear and decide a claim, the claim must be

dismissed. Fed. R. Civ. P. 12(b)(1).

When considering a motion under Federal Rule of Civil Procedure 12(b)(1), a court “is

not restricted to the face of the pleadings,” McCarthy v. United States, 850 F.2d 558, 560 (9th

Cir. 1988), but rather may resolve factual disputes relating to jurisdiction based on extrinsic

evidence, St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989); Roberts v. Corrothers,

812 F.2d 1173, 1177 (9th Cir. 1987); Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.

1983); Smith v. Rossotte, 250 F. Supp. 2d 1266, 1268 (D. Or. 2003) (a court “may consider

evidence outside the pleadings to resolve factual disputes”).

The plaintiff’s allegations do not enjoy a presumption of truthfulness, and disputes as to

material facts should not prevent the court from determining the merits of a jurisdictional claim.

Thornhill Pub. Co. v. Gen. Tel. & Electronics Corp., 594 F.2d 730, 733 (9th Cir. 1979). Indeed,

“the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its


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burden of establishing subject matter jurisdiction.” Savage v. Glendale Union High School, 343

F.3d 1036, 1039 n.2 (9th Cir. 2003) (citation omitted).

To avoid dismissal under Rule 12(b)(6), a plaintiff must aver in the complaint “sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). Iqbal explained that the pleading requirement of Fed. R. Civ. P. 8(a) “demands more

than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678

(citing Twombly, 550 U.S. at 555). “The plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”

Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. Thus, a pleading “that offers ‘labels and

conclusions’ or ‘a formulaic recitation of the elements of a cause of action’” is insufficient to

state a claim under Rule 8. Id.

V. ARGUMENT A. Counts I, III, and IV Should Be Dismissed For Lack of Jurisdiction and/or

Failure to State a Claim Upon Which Relief Can Be Granted 1. Count I Does Not Assert a Cognizable Claim Against NMFS Because

the ESA Citizen Suit Provision Does Not Provide Jurisdiction to Sue NMFS In Its Capacity as an Administrator of the ESA, And Also Because NMFS Has No Legal Duty to Reinitiate Consultation

Count I accuses NMFS (the consulting agency) of having “violated” the ESA by “failing

to reinitiate formal consultation” with Reclamation (the action agency) regarding Reclamation’s

operation of the Klamath Project. Amend. Compl. ¶ 65. Jurisdiction for the claim is asserted

under both the ESA citizen suit provision, 16 U.S.C. § 1540(g), and the Administrative

Procedure Act (“APA”), 5 U.S.C. §§ 704, 706. Amend. Compl. ¶¶ 70-71.

The ESA citizen suit provision does not provide a cause of action for Count I insofar as it

is pled against NMFS. Bennett v. Spear, 520 U.S. 154, 174 (1997). In Bennett, the Supreme


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Court held that ESA Section 11(g)(1)(A)2 does not provide a cause of action to sue an agency for

alleged “failure to perform [its] duties as administrator of the ESA.” Id. at 173. In other words,

an agency’s alleged “maladministration” of the ESA cannot be a “violation” of the Act within

the meaning of Section 11(g)(1)(A). Id. at 174. When NMFS consults with an action agency

pursuant to Section 7 of the ESA, it does so purely in its role as an administrator of the ESA.

Accord Amend. Compl. ¶ 21B (alleging that the Secretary of Commerce, through its designee

NMFS, is “responsible for administering the provisions of the Endangered Species Act”). There

can be no dispute that NMFS is not an action agency with respect to the Klamath Project, as it

does not authorize, fund, or carry out operation of the Project. Compare id. with id. ¶ 2 (“[t]he

Secretary of the Interior, acting through the BOR, manages and operates the Klamath Project”);

id. ¶ 21A (“BOR has primary management authority over the Klamath Project, the operation of

which is at the heart of this action”); see also 16 U.S.C. § 1536(a)(2) (an action agency is one

that “authorize[s], fund[s], or carrie[s] out” an action).

Therefore, Plaintiff’s assertion that NMFS has failed to fulfill its role as a consulting

agency (Amend. Compl. ¶ 70) is a “maladministration” claim that is not cognizable under the

ESA’s citizen suit provision. Bennett, 520 U.S. at 174; Conservation Force v. Salazar, 677 F.

Supp. 2d 1203, 1211 (N.D. Cal. 2009), aff’d, 646 F.3d 1240 (9th Cir. 2011); Nat’l Wildlife Fed’n

v. Harvey, 440 F. Supp. 2d 940, 954 (E.D. Ark. 2006); Miccosukee Tribe v. United States, 430 F.

Supp. 2d 1328, 1334 (S.D. Fla. 2006); Coos County Bd. of County Comm’rs v. Kempthorne, 531

F.3d 792, 802 (9th Cir. 2008).

2 As is relevant here, ESA Section 11(g)(1)(A) provides a waiver of sovereign immunity for “any person” to “commence a civil suit on his own behalf—(A) to enjoin . . . the United States and any other governmental instrumentality or agency . . . who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof.” 16 U.S.C. § 1540(g)(1)(A).


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Count I also is not cognizable against NMFS under the APA, 5 U.S.C. §§ 704, 706,3 as

alleged. Amend. Compl. ¶ 71.4 “[A] claim under [APA] § 706(1) can proceed only where a

plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.”

Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004) (“SUWA”). Plaintiff cannot

accurately include such an allegation in Count I; its assertion that “NMFS . . . had a duty to re-

initiate formal consultation” (Amend. Compl. ¶ 67) is erroneous as a matter of law.

It is apparent from the plain language of the ESA, its implementing regulations, the ESA

Section 7 Consultation Handbook, and the applicable case law that any duty to reinitiate

consultation rests solely with the action agency (here, Reclamation). The action agency is the

agency taking the action and, consequently, the agency that bears sole responsibility for

complying with ESA Section 7(a)(2): Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an “agency action”) is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary...

16 U.S.C. § 1536(a)(2) (emphasis added); accord 50 C.F.R. § 402.14(a) (precursor to formal

consultation is 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”) (emphasis added); id.

§ 402.02 (“action” under the ESA “means all activities or programs of any kind authorized,

funded, or carried out, in whole or in part, by Federal agencies. . .”) (emphasis added); id. 3 APA Section 706 provides the scope of review for claims asserted under the Act and, as is relevant here, directs a reviewing court to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). 4 Count I also is not actionable against Reclamation under the APA because the APA provides review only where “there is no other adequate remedy in a court.” 5 U.S.C. § 704. The ESA’s citizen suit provision provides an adequate remedy for an action agency’s failure to reinitiate consultation. Therefore, Count I (and for the same reason, Count II) should be dismissed insofar as they are asserted against Reclamation under the APA (Amend. Compl. ¶¶ 71, 78 asserting reviewability under 5 U.S.C. §§ 704, 706). Federal Defendants do not dispute that Counts I and II assert cognizable claims against Reclamation under the ESA citizen suit provision, 16 U.S.C. § 1540(g)(1)(A) (Amend. Compl. ¶¶ 70, 77); however, as explained below, these claims are prudentially moot.


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(“Formal consultation is a process between the Service and the Federal agency that commences

with the Federal agency’s written request for consultation under section 7(a)(2) of the Act and

concludes with the Service’s issuance of the biological opinion under section 7(b)(3) of the

Act”); Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1020 (9th Cir. 2012) (“Section 7

imposes on all agencies a duty to consult with either the Fish and Wildlife Service or the NOAA

Fisheries Service before engaging in any discretionary action that may affect a listed species or

critical habitat”) (emphasis added); Pac. Coast Fed’n of Fishermen’s Ass’ns, 606 F. Supp. 2d

1122, 1188-89 (E.D. Cal. 2008) (“[T]he ultimate responsibility for compliance with the ESA

falls on the action agency”); 51 Fed. Reg. 19,926, 19,928 (June 3, 1986) (noting that it is the

“action agency” in an ESA consultation process that “has the primary responsibility for

implementing Section 7’s substantive command”).

As such, the “Federal agency makes the final decision on whether consultation is

required.” Defs. of Wildlife v. Flowers, 414 F.3d 1066, 1070 (9th Cir. 2005); Friends of

Merrymeeting Bay v. U.S. Dep’t of Commerce, 810 F. Supp. 2d 320, 328 (D. Me. 2011) (“In

short, the ESA puts the onus on the action agency to engage in consultation”); 50 C.F.R. §

402.15(a) (following consultation, action agency must determine “whether and in what manner

to proceed with the action in light of its Section 7 obligations and the Service’s biological

opinion”). In fact, the very regulation that Count I accuses NMFS of having violated, 50 C.F.R.

§§ 402.14(i)(4) (Amend. Compl. ¶ 69), states unequivocally that the duty to reinitiate

consultation lies with the action agency, stating: “(4) If during the course of the action the

amount or extent of incidental taking, as specified under paragraph (i)(1)(i) of this Section, is

exceeded, the Federal agency must reinitiate consultation immediately.” Id. (emphasis added).

Accordingly, NMFS and FWS have interpreted the applicable authorities in their joint

1998 ESA Section 7 Consultation Handbook as placing the duty to reinitiate on the action

agency. The section discussing reinitiation of consultation states: When the action agency determines that one or more of the four conditions requiring reinitiation of formal consultation has occurred, consultation must be reinitiated. Similarly, if the Services recognize that any of these conditions have


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occurred, written advice is provided to the action agency of the need to reinitiate consultation.

Endangered Species Consultation Handbook, Procedures for Conducting Consultation and

Conference Activities Under Section 7 of the Endangered Species Act, at 4-64 (emphasis added).5

In sum, Count I’s allegation that NMFS has breached a duty to reinitiate consultation

fails to state a cognizable claim for relief under the ESA or APA, and should be dismissed.

Indeed, NMFS not only lacks a duty to reinitiate consultation, but also the authority to compel

Reclamation to do so. Defs. of Wildlife, 414 F.3d at 1070 (“Although the Service will, when

appropriate, request consultation on particular Federal actions, it lacks the authority to require

the initiation of consultation”); Sierra Club v. Marsh, 816 F.2d 1376, 1386 (9th Cir. 1987) (ESA

does not give the consulting agency the power to order other agencies to comply with its requests

or to veto their decisions); Protect Our Water v. Flowers, 377 F. Supp. 2d 844, 872 (E.D. Cal.

2004); 51 Fed. Reg. at 19,956; Endangered Species Consultation Handbook, at 2-11, (“the

Services can not [sic] require Federal agencies to reinitiate consultation if they choose not to do

so”). NMFS’ role as a consulting agency under Section 7 of the ESA is purely advisory – it

provides advice to the action agency as to how it can meet its substantive obligations under the

ESA. See 51 Fed. Reg. at 19,928 (discussing consulting agency’s role under Section 7).

To the extent that the ESA’s reinitiation regulation, 50 C.F.R. § 402.16, bestows any

legal authority or duty upon NMFS, it is merely – and at most – to make a request to the action

agency to reinitiate consultation if one or more of the enumerated reinitiation triggers have been

met. 50 C.F.R. § 402.16 (stating that “[r]einitiation of formal consultation is required and shall

be requested by the Federal agency or by the Service, where discretionary Federal involvement

or control over the action has been retained or is authorized by law” and one of the enumerated

reinitiation triggers has been met). Count I does not allege, however, that NMFS has breached a

duty to request reinitiation, but rather that NMFS has breached a duty to reinitiate consultation

itself (Amend. Compl. ¶ 65), an altogether different duty that NMFS does not possess.

5 Available at http://www.nmfs.noaa.gov/pr/laws/esa/policies.htm#consultation (last visited Oct. 4, 2016).


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Moreover, even if Count I did allege that NMFS has failed to request reinitiation, the

claim still would not be actionable because it could not redress the alleged failure to reinitiate,

given NMFS’ inability to compel reinitiation. While declaratory or injunctive relief against

NMFS for having failed to request reinitiation might provide Plaintiff with some measure of

satisfaction, “[r]elief that does not remedy the injury suffered cannot bootstrap a plaintiff into

federal court.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107 (1998); Fox v. Palmas

Del Mar Properties, 620 F. Supp. 2d 250, 262 (D.P.R. 2009) (dismissing ESA citizen suit claim

that would not redress the alleged injury from completed construction activities). Thus, because

Count I could not remedy the alleged failure to reinitiate consultation insofar as it is asserted

against NMFS, the court lacks jurisdiction to entertain the claim. Steel Co., 523 U.S. at 108.

2. Count III Is Not Cognizable Because NMFS, In Its Role As a Consulting Agency, Cannot Have Committed Any “Take” of Coho Salmon As Alleged, and Also Because the ESA’s Citizen Suit Provision Does Not Provide Jurisdiction to Sue for Wholly Past Alleged Violations

Count III accuses both NMFS and Reclamation of committing “take” in violation of ESA

Section 9 because “[t]he terms and conditions of the ITS regarding incidence of disease were

exceeded in 2014 and 2015” (Amend. Compl. ¶ 82), and because NMFS allegedly is “continuing

to allow Klamath Project operations” (id. ¶ 83). Count III is not “plausible on its face,” Iqbal,

556 U.S. at 678, against NMFS. Under the ESA, “‘take’ means 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). In consulting with Reclamation in its capacity as an administrator of the

ESA, NMFS cannot, as a matter of fact and law, have engaged in any such conduct. As

explained above, NMFS’ role as a consulting agency under Section 7 of the ESA is advisory in

nature; it provides counsel to the action agency to help it meet its substantive obligations under

the ESA. Amend. Compl. ¶ 21B; see also 51 Fed. Reg. at 19,928 (discussing consulting

agency’s role under Section 7). NMFS has not taken any action to authorize, fund, or carry out

Klamath Project operations. Compare Amend. Compl. ¶ 21B (NMFS is “responsible for


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administering the provisions of the Endangered Species Act”); with id. ¶ 2 (“[t]he Secretary of

the Interior, acting through the BOR, manages and operates the Klamath Project”); id. ¶ 21A

(“BOR has primary management authority over the Klamath Project, the operation of which is at

the heart of this action”).

Because NMFS cannot have harassed, harmed, pursued, hunted, shot, wounded, killed,

trapped, captured, or collected, or to attempted to engage in any such conduct, Count III does

not, and cannot, present a plausible or cognizable legal claim for relief against NMFS (either

under the ESA or APA). Iqbal, 556 U.S. at 678; Bennett, 520 U.S. at 173; 5 U.S.C. § 704

(making “final agency action” subject to judicial review); SUWA, 542 U.S. at 64. Count III

should be dismissed insofar as it is asserted against NMFS.

Count III also fails to state a cognizable claim against NMFS – and also against

Reclamation – for an additional, independent reason. As noted above, and as is relevant here, the

ESA citizen suit provision provides a cause of action “to enjoin any person . . . who is alleged to

be in violation of any provision of this chapter or regulation issued under the authority thereof.”

16 U.S.C. § 1540(g)(1)(A) (emphasis added). The Supreme Court has held that the phrase “to be

in violation” in the nearly identical citizen suit provision in the Clean Water Act (“CWA”)6 does

not confer federal jurisdiction over citizen suits for wholly past violations. Gwaltney of

Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49 (1987). Rather, the phrase “to be in

violation” only permits a plaintiff to bring a suit “to enjoin or otherwise abate an ongoing

violation.” Id. at 58-59; accord Fox, 620 F. Supp. 2d at 262 (dismissing ESA citizen suit claim

based on past alleged violations).

Here, Count III alleges that the “ITS regarding [the] incidence of disease [was] exceeded

in 2014 and 2015” (Amend. Compl. ¶ 82); however, the claim does not – and cannot – allege that

an exceedance was either ongoing or imminent when the complaint was filed in July 2016. To

6 As relevant here, the CWA’s citizen suit provision provides that “any citizen may commence a civil action on his own behalf— (1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation” of certain standards or orders. 33 U.S.C. § 1365(a)(1); compare id. with 16 U.S.C. § 1540(g)(1)(A).


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the contrary, as NMFS noted in a March 29, 2016 letter to Reclamation, four months before the

complaint was filed: In contrast to water years 2014 and 2015, NMFS expects that hydrologic conditions in water year 2016 will be within the bounds of the environmental variability that we considered in developing the surrogate for the ITS of the 2013 BiOp; as of March 28, 2016 the Klamath Basin was at 114 percent of average annual peak snow water equivalent. We conclude that given the extensive snowpack, flows and water temperatures in the Klamath River below Iron Gate Dam in the Spring of 2016 are expected to be sufficient to reduce disease infection rates below the take exceedance criteria described in the ITS. We do not anticipate dry hydrologic conditions, and the resultant level of effects of the Project operations observed during dry year conditions, will occur in 2016 during the time needed to revise the ITS as described above.

3/29/2016 letter from Stelle to Bradford (attached as Ex. 2 to Compl.) (DN 1 at 28 of 36).

The most recent evidence supports NMFS’ prediction that the coho take limit will not be

exceeded in 2016. A September 16, 2016 memorandum from the California-Nevada Fish Health

Center7 reports a C. shasta infection rate of 38% (373/94) thus far in 2016, which is below the

applicable incidental take limit (i.e., 49% via the quantitative polymerase chain reaction

(“QPCR”) method (Amend. Compl. ¶ 6)),8 and considerably lower than the 81% rate allegedly

reported in 2014 and the 91% rate allegedly reported in 2015 (id. ¶ 7). 9/16/2016 Memo from

True to Hetrick (copy attached hereto as Ex. B). Although the 2016 data is preliminary and

subject to revision in the final report, expected to be released in December 2016, it demonstrates

that there presently is no evidence that could support an allegation that the “ITS regarding [the]

incidence of disease” (Amend. Compl. ¶ 82) has been exceeded since 2015, and hence is

ongoing.

Although the Ninth Circuit has held that the ESA citizen suit provision provides a cause

of action to challenge a future alleged violation shown to be “imminent” and “reasonably certain

to occur,” Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 787 (9th Cir.

7 The California-Nevada Fish Health Center coordinates and provides laboratory support for monitoring the prevalence of Ceratanova shasta (C. shasta) with the Karuk Tribe, Yurok Tribe, and FWS. 8 2013 BiOp at 391 (Ex. A hereto).


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1995), the complaint here does not, and cannot, make such a showing. Count III merely alleges

that Reclamation’s operation of the Klamath Project “will continue to exceed take authorizations

in the ITS.” Amend. Compl. ¶ 84. This assertion of future violations is entirely vague and

speculative and, in fact, contradicted by Plaintiff’s own evidence. The complaint acknowledges

that past C. shasta infection rates have been influenced by “the occurrence of multi-year drought

and hydrologic conditions and resulting operational changes” (Amend. Compl. ¶ 8), and attached

thereto is NMFS’ March 29, 2016 letter to Reclamation, which notes that “the extent of dry

hydrologic and associated environmental conditions in the Klamath River in 2014 and 2015 are

rare” and not expected to reoccur in 2016, (DN 1 at 27 of 36 (emphasis added)). Whether the

rare, extended drought conditions experienced in 2014 and 2015 will reoccur in 2017 or beyond

is unknown, and therefore, whether, and when, the past alleged ESA violations will reoccur in

the future is unknown. Exceedance of take in future years is unlikely without a similar level of

rare, extended drought. Id. at 28 of 36.

Thus, at best, Count III vaguely and speculatively seeks to deter the possibility of future

alleged ESA violations, which falls far short of satisfying “clear precedent” from the Supreme

Court requiring that “allegations of future injury be particular and concrete.” Steel Co., 523 U.S.

at 109 (citation omitted); see also id. at 108 (plaintiff must allege “a continuing violation or the

imminence of a future violation”); Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (alleged

injury in fact must be “concrete” and “actual or imminent, not ‘conjectural’ or ‘hypothetical’”)

(citations omitted). For this reason, Count III not only fails to state a cognizable claim for relief

under the ESA’s citizen suit provision, Rosboro Lumber Co., 50 F.3d at 787; Fox, 620 F. Supp.

2d at 262,9 but fails to present an actual case or controversy as required by Article III of the U.S.

9 Count III also is not cognizable under the APA, 5 U.S.C. §§ 704, 706, as alleged (Amend. Compl. ¶ 87), as the APA provides a remedy only where “there is no other adequate remedy in a court,” 5 U.S.C. § 704, and not where “any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought,” id. at § 702. Here, the ESA’s citizen suit provision provides an adequate remedy for alleged violations of the statute that are either ongoing or imminent and reasonably certain to occur, and it is apparent from the plain text of the citizen suit provision that Congress did not intend to permit claims for wholly past alleged violations, 16 U.S.C. § 1540(g)(1)(A); Rosboro Lumber Co., 50 F.3d at 787; Gwaltney, 484 U.S. at 59; Fox, 620 F. Supp. 2d at 262.


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Constitution. “Past exposure to illegal conduct does not in itself show a present case or

controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse

effects.” Steel Co., 523 U.S. at 109 (citations omitted).

In sum, the complaint in this case was filed over a year after the last ESA violation is

alleged to have occurred, and it cannot demonstrate that a future violation is imminent and/or

reasonably certain to occur. Count III therefore should be dismissed for two independent

reasons: (1) failure to state a cognizable ESA citizen suit claim for unlawful take, Gwaltney, 484

U.S. at 59 (“the harm sought to be addressed by the citizen suit lies in the present or the future,

not in the past”); Rosboro Lumber Co., 50 F.3d at 787; see also Friends of Merrymeeting Bay v.

Topsham Hydro Partners Ltd. P’ship, No. 2:11-cv-37-GZS, 2013 WL 145623, at *5-6 (D. Me.

Jan. 14, 2013) (declining to award injunctive relief to remedy past allegedly unlawful takings of

ESA-listed Atlantic salmon and dismissing case); and (2) lack of standing, Steel Co., 523 U.S. at

1020; Fox, 620 F. Supp. 2d at 262; see also Nat’l Parks Conserv. Ass’n v. U.S. Army Corps of

Eng’rs, 574 F. Supp. 2d 1314, 1324 (S.D. Fla. 2008) (“speculation regarding possible future

acts” did not establish a live case or controversy).

3. Count IV Is Not Cognizable Because Section 305(b)(4)(B) of the MSA, On Its Face, Imposes No Legal Duty on NMFS

Count IV is pled solely against NMFS (the consulting agency) under the APA, 5 U.S.C. §

706, Amend. Compl. ¶ 91,10 and likewise must fail. The claim alleges that “NMFS has violated

the MSFCMA, 16 U.S.C. § 1855(b)(4)(B), by failing to consult on effects of the Klamath Project

on Essential Fish Habitat.” Amend. Compl. ¶ 90; accord id. at ¶ 13 (alleging same).

10 The complaint also asserts jurisdiction generally under “16 U.S.C. § 1855” (Compl. ¶ 14); however, the MSA’s citizen suit provision, found at 16 U.S.C. § 1855(f), would not provide a cause of action for Count IV. Oregon Trawlers Ass’n v. Gutierrez, 452 F.3d 1104, 1112 (9th Cir. 2006). MSA Section 305(f) authorizes only challenges to regulations and actions taken by NMFS under regulations that implement fishery management plans, neither of which are challenged here. Also, any challenge under Section 305(f) would be barred by its 30-day statute of limitations. 16 U.S.C. § 1855(f)(1).


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Count IV fails to state a plausible or cognizable claim for relief because it is apparent

from the plain text of the MSA that Section 305(b)(4)(B) imposes no legal duty upon NMFS,

either substantive or procedural. Section 305(b)(4)(B) states: Within 30 days after receiving a recommendation under subparagraph (A), a Federal agency shall provide a detailed response in writing to any Council commenting under paragraph (3) and the Secretary regarding the matter. The response shall include a description of measures proposed by the agency for avoiding, mitigating, or offsetting the impact of the activity on such habitat. In the case of a response that is inconsistent with the recommendations of the Secretary, the Federal agency shall explain its reasons for not following the recommendations.

16 U.S.C. § 1855(b)(4)(B) (emphasis added).

To the extent that Section 305(b)(4)(B) imposes any legal duty that could give rise to a

claim for breach thereof under the waiver of sovereign immunity provided by the APA, 5 U.S.C.

§ 702, it is on the “Federal agency” (i.e., Reclamation as the action agency), not “the Secretary”

(i.e., NMFS as the consulting agency).11 Because Section 305(b)(4)(B) imposes no legal duty

upon NMFS, it cannot, under any set of alleged facts, provide a basis for an actionable claim

against NMFS to “compel agency action unlawfully withheld” under 5 U.S.C. § 706(1). As

noted above, “a claim under [APA] § 706(1) can proceed only where a plaintiff asserts that an

agency failed to take a discrete agency action that it is required to take.” SUWA, 542 U.S. at 64;

see also Souza v. Cal. Dep't of Transp., No. C 13-4407 PJH, 2014 WL 793644, at *6–7 (N.D.

Cal. Feb. 26, 2014) (dismissing challenge to action agency’s EFH assessment on the grounds that

it was not final agency action). As Count IV does not, and cannot, make such an allegation, it

should be dismissed.12 11 As used in the MSA, “[t]he term ‘Secretary’ means the Secretary of Commerce or his designee” (here, NMFS). 16 U.S.C. § 1802(39). 12 Indeed, like the ESA, the MSA places the duty to initiate consultation solely on the action agency. The basic consultation obligation is found in Section 305(b)(2) of the Act, which states, in its entirety: “Each Federal agency shall consult with the Secretary with respect to any action authorized, funded, or undertaken, or proposed to be authorized, funded, or undertaken, by such agency that may adversely affect any essential fish habitat identified under this chapter.” 16 U.S.C. § 1855(b)(2) (emphasis added); accord 50 C.F.R. § 600.920(a)(1) (“Pursuant to section 305(b)(2) of the Magnuson-Stevens Act, Federal agencies must consult with NMFS regarding any of their actions authorized, funded, or undertaken, or proposed to be authorized, funded, or


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B. Counts I and II (and, In the Alternative, Count IV) Should Be Dismissed As Prudentially Moot Or, In the Alternative, Stayed Out of Deference to Ongoing Administrative Action

1. Counts I, II, and IV Are Prudentially Moot

Counts I and II, which center on the allegation that Reclamation and NMFS have failed to

reinitiate formal ESA consultation, are belied by the fact that the agencies have, since before the

complaint was filed, been engaged in informal ESA Section 7 consultation13 regarding the effects

of Klamath Project operations on the coho salmon and the latest information on C. shasta disease

risk. The complaint acknowledges this ongoing consultation and the fact that, on March 29,

2016, NMFS revisited the effects analysis and conclusions of its 2013 BiOp on Klamath Project

operations in light of 2014 and 2015 environmental conditions and concluded that those analyses

and conclusions “remain valid.” Amend. Compl. ¶ 60; DN 1 at 26 of 36. In that same March 29,

2016 letter, NMFS announced that it “intend[s] to revise the ITS prior to the 2017 operational

water year, commencing April 1, 2017” “based on consideration of the environmental variability

that coho salmon experienced in the Klamath River in 2014 and 2015 and to account for the

likelihood of similar conditions in the future.” DN 1 at 26-28 of 36. NMFS explained that this

revision will be based on new C. shasta disease monitoring results for a revised, long-term

period of record, and a new Stream Salmonid Simulator (S3) model that will allow for evaluation

of C. shasta infection rates under various flow management scenarios. Id. at 27 of 36.

In addition, in July 2016 a technical team comprised of the Yurok and Karuk Tribes,

NMFS, FWS, and Reclamation met to form a Disease Management Team to synthesize

information in the form of technical memos to support the development of a Disease

undertaken that may adversely affect EFH”) (emphasis added); id. § 600.920(e)(1) (“For any Federal action that may adversely affect EFH, Federal agencies must provide NMFS with a written assessment of the effects of that action on EFH”) (emphasis added); Souza, 2014 WL 793644, at *2 (“§ 305(b)(2) and its enabling regulations require action agencies to consult with the NMFS”) (emphasis added). None of these authorities places any legal duty on NMFS to initiate such consultation under the MSA. 13 As noted above, informal ESA Section 7 consultation “includes all discussions, correspondence, etc., between the Service and the Federal agency . . . designed to assist the [action agency] in determining whether formal consultation . . . is required.” 50 C.F.R. § 402.13(a).


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Management Guidance Document that will recommend flow and other measures intended to

mitigate the effects of C. shasta disease infection rates in federally-listed coho salmon below

Iron Gate Dam. Disease Management Scoping Document (copy attached hereto as Ex. C).14

The Guidance document is expected to be finalized by October 12, 2016, after which

Reclamation will determine how to incorporate the Guidance Document into Klamath Project

operations, where possible, and/or to otherwise use the document to inform Reclamation

regarding the reinitiated formal consultation along with the extent and scope of such

consultation. Id.

Reclamation and NMFS also are on a path towards completing consultation under the

MSA, which provides an additional, independent basis for dismissing Count IV to that discussed

above (supra § V.A.3). Reclamation initiated MSA consultation with NMFS in 2013, but

subsequently suspended the consultation because a data gap existed due to the absence of

modeling tools that would aid in the consultation. DN 1 at 23 of 36. In March 2016, NMFS

informed Reclamation that new modeling tools soon would be complete, after which time the

agencies would develop a schedule for completing the EFH consultation. Id. at 28 of 36. The

agencies have since coordinated and agreed upon a schedule and milestones document that

includes a timeline for completing the EFH consultation by April 24, 2017. EFH Major

Milestones Schedule (copy attached hereto as Ex. D).

Given that Reclamation and NMFS have announced deadlines for completing the very

processes that Counts I, II, and IV seek to compel, the Court should dismiss these claims as

prudentially moot. The doctrine of prudential mootness allows a court to “stay its hand” and

“withhold relief it has the power to grant.” Chamber of Commerce v. U.S. Dep't of Energy, 627

F.2d 289, 291 (D.C. Cir. 1980) (citation omitted). Prudential mootness is particularly apt where,

as here, “the challenged practice . . . [is] undergoing substantial revision, so that the reviewing

court [can] not be certain of the regulation’s ultimate form.” Reeve Aleutian Airways v. United

States, 889 F.2d 1139, 1144 (D.C. Cir. 1989) (characterizing prior cases); see also A.L. Mechling

14 Plaintiff Hoopa Valley Tribe was invited to participate in this initial meeting but elected not to attend. Hoopa Valley Tribe representatives have attended subsequent technical meetings.


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Barge Lines v. United States, 368 U.S. 324, 331 (1961) (“We think that sound discretion

withholds the remedy where it appears that a challenged ‘continuing practice’ is, at the moment

adjudication is sought, undergoing significant modification so that its ultimate form cannot be

confidently predicted”). “[T]he doctrine of prudential mootness [also] . . . has particular

applicability in cases ... where [as in this case] the relief sought is an injunction against the

government.” Southern Utah Wilderness Alliance v. Smith, 110 F.3d 724, 727 (10th Cir. 1997)

(citations omitted). Although the Ninth Circuit has not expressly adopted the doctrine of

prudential mootness, it has, in one case, “assumed that we have discretion to dismiss this case as

‘anticipatorily moot.’” Hunt v. Imperial Merch. Servs., 560 F.3d 1137, 1142 (9th Cir. 2009)

(citing Chamber of Commerce, 627 F.2d at 291). Indeed, in Oregon Nat. Res. Council v. Keys,

No. CIV. 02-3080-CO, 2004 WL 1048168, at *10 (D. Or. May 7, 2004), report and

recommendation adopted, 2004 WL 1490320 (D. Or. June 29, 2004), the court dismissed a

failure to reinitiate claim against Reclamation as prudentially moot where the defendants had

“presented evidence that the BOR [was] in the process of reinitiating consultation” on its

Klamath Project operations.

It would not be a productive use of judicial or party resources to litigate whether

consultation is required under the ESA and/or MSA when Reclamation and NMFS are already

pursuing those very procedures and expect to complete them within the next six months. DN 1

at 28 of 36; EFH Major Milestones Schedule (Ex. D hereto). Counts I and II will be rendered

jurisdictionally moot as soon as the agencies declare that they have officially reinitiated formal

ESA consultation, because at that point the agencies will have “completely and irrevocably

eradicated” the alleged failure to reinitiate consultation, leaving the Court with no effective

injunctive relief it could award Plaintiff on those claims. Los Angeles County v. Davis, 440 U.S.

625, 631 (1979). Numerous courts have held that ESA Section 7 reinitiation claims are moot

where the agencies have reinitiated consultation. Defs. of Wildlife v. Martin, 454 F. Supp. 2d

1085, 1103 (E.D. Wash. 2006); Or. Nat. Desert Ass’n v. U.S. Forest Serv., Civ. No. 04-3096-PA,

2007 WL 1072112 (D. Or. Apr. 3, 2007); Greenpeace Found. v. Mineta, 122 F. Supp. 2d 1123,

1127-28 (D. Haw. 2000); Ctr. for Marine Conserv’n v. Brown, 917 F. Supp. 1128, 1144-45 (S.D.


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Tex. 1996); Am. Littoral Soc’y v. EPA, 199 F. Supp. 2d 217, 245-247 (D. N.J. 2002); Sw. Ctr. for

Biological Diversity v. U.S. Forest Serv., 82 F. Supp. 2d 1070, 1079 (D. Ariz. 2000).

Jurisdiction already is lacking over Count IV and its claim of an alleged failure to act, given that

the agencies were already engaged in MSA consultation before the complaint was filed. Steel

Co., 523 U.S. at 108.

If, after the ESA and MSA consultations are completed, Plaintiff believes that the product

of those consultations is unlawful, it can attempt to pursue judicial review of any claim(s) then.

Withholding judicial review until the ESA and MSA consultations are completed will provide

the practical benefit of reviewing final agency actions and a comprehensive administrative

record, as opposed to proceeding on the basis of ad hoc information currently available and, as

explained below, will not prejudice Plaintiff.

2. If the Court Does Not Dismiss Counts I, II, and IV, It Should Stay Them Until the Ongoing Agency Deliberations Are Complete

As explained above, the Court should dismiss Counts I and II (and, in the alternative,

Count IV) as prudentially moot out of deference to the ongoing inter-agency consultation and in

furtherance of equitable and prudential considerations. In the alternative, the Court should stay

the claims until April 24, 2017, when both the ESA and MSA consultations are expected to be

concluded. As the Ninth Circuit has explained: A trial court may, with propriety, find it is efficient for its own docket and the fairest course for the parties to enter a stay of an action before it, pending resolution of independent proceedings which bear upon the case. This rule applies whether the separate proceedings are judicial, administrative, or arbitral in character, and does not require that the issues in such proceedings are necessarily controlling of the action before the court.

Leyva v. Certified Grocers of Cal., 593 F.2d 857, 863-64 (9th Cir. 1979) (emphasis added). A

stay is appropriate when it will serve the interests of judicial economy by allowing for

development of factual and legal issues, and when a weighing of the hardships, in the Court’s

equitable judgment, favors the granting of a stay. Lockyer v. Mirant Corp., 398 F.3d 1098, 1110

(9th Cir. 2005) (citation omitted). Here, a stay would provide the agencies with an opportunity


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to resolve the alleged failures to consult administratively, thereby narrowing, if not eliminating

altogether, the current dispute and, at a minimum, allowing the agencies to prepare a

comprehensive administrative record that would facilitate any judicial review.

A stay would not cause hardship to Plaintiff. As explained above, there is no evidence of

any ongoing or imminent ESA Section 9 violation for unlawful “take” of coho. Supra, § V.A.2.

In addition, a stay would allow the agencies to focus their limited resources on completing the

processes that Plaintiff’s complaint asks this Court to compel, rather than on litigation. Amend.

Compl., Prayer for Relief at ¶ E (seeking an order compelling NMFS and Reclamation to

reinitiate ESA consultation), ¶ H (seeking an order compelling NMFS to complete MSA

consultation). Although it would be premature at this juncture for the Court to entertain any

challenge to the processes that the agencies are currently employing or the projected end result of

those processes because it would “inappropriately interfere with further administrative action,”

Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 733 (1998), and run the risk of the Court

“entangling [itself] in [an] abstract disagreement[],” Abbott Labs. v. Gardner, 387 U.S. 136, 148

(1967), we note that the agencies are proceeding in accordance with the applicable authorities.

For instance, although Counts I and II allege that the agencies have failed to “reinitiate

formal consultation” (Amend. Compl. ¶¶ 68-69, 74-75), the complaint does not, and cannot,

identify any specific, required procedure that is not being followed. “Where [as in this case] a

full BiOp already exists for a particular federal action, and an agency seeks to reinitiate

consultation with the [consulting agency], the [ESA] regulations do not specify what the product

of the reinitiated formal consultation should be.” Mayo, 2016 WL 1254213, at *29.

Furthermore, neither the ESA nor its implementing regulations contain any deadline for

completing consultation. 16 U.S.C. § 1536(b)(1)(A) (providing that consultation in the first

instance “shall be concluded within the 90-day period … or . . . within such other period of time

as is mutually agreeable to the Secretary and the Federal agency”); 50 C.F.R. § 402.16. Rather,

the statute and regulations vest the action and consulting agencies with complete discretion to

order priorities and determine when the consultation process is to be concluded. This statutory

and regulatory framework is unlike the unequivocal statutory mandates that typically give rise to


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APA Section 706(1) claims. SUWA, 542 U.S. at 65 (explaining, for instance, that Section 706(1)

would be available where an agency is “compelled by law to act within a certain time period”).

Thus, in this case, NMFS’ reconsideration of the effects analysis and conclusions of its

2013 BiOp, and its plan to revise the ITS is consistent with the applicable legal authorities.

Indeed, the ESA Section 7 Consultation Handbook expressly provides that a reinitiated

consultation can take the form of an amended BiOp and ITS. ESA Section 7 Consultation

Handbook at 4-64, “Procedures for Modifying Biological Opinions And Incidental Take

Statements.” The Handbook states that “[d]ocumentation of a reinitiated consultation must be in

writing, and must contain sufficient information to record the nature of the change in the action’s

effects and the rationale for amending analyses of anticipated incidental take or the reasonable

and prudent alternatives or measures.” Id. at 4-64 to 4-65. The Handbook suggests that a new

consultation is required only where there are “major changes in effects analyses or changes in the

Services’ biological opinion,” or “a new species listing or critical habitat designation,” situations

not present here. Id. at 4-65.

The course of action that NMFS is following here also is consistent with the approach

recently taken by FWS – and upheld by the court – in Mayo v. Jarvis, 2016 WL 1254213, at *6.

In Mayo, in response to the incidental take limit for the grizzly bear having been exceeded,

“FWS issued an ‘addendum’ to its 2007 BiOp that purported to ‘tier[ ] off of [the FWS’s]

original biological opinion’ and provide a new incidental take statement for grizzly bears ‘which

reflects current conditions within the Park and Refuge.’” Id. The court squarely rejected the

plaintiff’s argument that reinitiation of consultation necessarily required FWS to prepare a new

BiOp, noting that “[i]n the Court’s view, it is reasonable for the FWS to have interpreted the

regulation to allow it to create an addendum, incorporating the prior BiOp to the extent

information therein has not changed, in lieu of producing a new—and likely duplicative—BiOp.”

Id. at 29. “This Court will defer to the agency’s discretion in determining the procedures

necessary to fulfill its statutory duties.” Id. (citing Vt. Yankee Nuclear Power Corp. v. Nat. Res.

Def. Council, 435 U.S. 519, 524 (1978) (“[T]his Court has for more than four decades


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emphasized that the formulation of procedures was basically to be left within the discretion of

the agencies to which Congress had confided the responsibility for substantive judgments”)).

In sum, given that Reclamation and NMFS are following a path that is consistent with the

applicable authorities and which they expect to complete in approximately six months (i.e., by

April 24, 2017), and the lack of prejudice to Plaintiff, if the Court determines that dismissal of

Counts I, II, and/or IV is not appropriate at this time, it should stay the claims until April 24,

2017 to allow the agencies to complete their ongoing administrative processes.

VI. CONCLUSION

For all of the foregoing reasons, the Court should dismiss the following claims: (1) Count

I insofar as it is asserted against NMFS; (2) Counts I and II insofar as they are asserted against

Reclamation under the APA; (3) Count III in its entirety; and (4) Count IV in its entirety. In

addition, the Court should dismiss Counts I and II (and, in the alternative, Count IV) in their

entirety as prudentially moot or, in the alternative, stay them until April 24, 2017.

Dated: October 5, 2016

Respectfully submitted, JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division SETH M. BARSKY, Chief S. JAY GOVINDAN, Assistant Chief /s/ Robert P. Williams ROBERT P. WILLIAMS, Sr. Trial Attorney U.S. Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section Ben Franklin Station, P.O. Box 7611 Washington, D.C. 20044-7611 Tel: 202-305-0206; Fax: 202-305-0275 [email protected] Attorneys for Federal Defendants


Documents

JOHN C. CRUDEN, Assistant Attorney General SETH M. BARSKY ... · 3:16-cv-04294-WHO 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JOHN C. CRUDEN, Assistant