812 F. Supp. 2d 1089
E.D. Cal.2011Background
- Plaintiffs challenge FEMA’s administration of the National Flood Insurance Program in the Sacramento–San Joaquin Delta, alleging NFIP actions (floodplain criteria, LOMCs, and flood insurance) incentivize development harming listed species.
- Listed species include Sacramento River winter-run Chinook salmon, Central Valley spring-run Chinook salmon, Central Valley steelhead, and the delta smelt.
- Plaintiffs contend FEMA’s mapping and-related activities, including community eligibility decisions and enforcement monitoring, trigger ESA Section 7 consultation.
- FEMA moves for partial summary judgment on statute of limitations, authority to amend NFIP regulations, LOMCs triggering consultation, exclusive review for LOMCs, and non-discretionary nature of flood insurance under Home Builders.
- The court rules on whether these claims are time-barred, whether ongoing NFIP actions constitute agency action triggering §7, and whether flood insurance issuance is exempt from §7; it denies some and grants others for further factual development.
- The decision includes extensive evidentiary rulings on judicial notice and the admissibility of various exhibits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FEMA mapping actions are §7 triggering agency action | Plaintiffs urge mapping/implementation may affect listed species | FEMA argues actions are neutral or pre-empted by limitations | Disputed fact; mapping actions are ongoing agency action not barred by statute of limitations |
| Whether statute of limitations bars challenges to floodplain management criteria | Six-year limit applies; ongoing actions toll limitations | Promulgation of old regulations is time-barred; ongoing implementation does not reset accrual | Not barred for mapping-related claims; six-year clock does not bar ongoing mapping activity claims |
| Whether LOMCs trigger §7 consultation | LOMCs and CLOMRs affect floodplains and habitat | LOMCs themselves are not new actions; they do not authorize ongoing development | Issue of fact; LOMCs’ effect on species disputed and not resolved on summary judgment |
| Whether §4104 NFIA procedures preclude ESA suit | 4104 does not foreclose ESA claims | 4104 exclusivity bars untimely ESA review | Not preclusive; §4104 procedures do not bar ESA §7 claims |
| Whether flood insurance issuance is non-discretionary under Home Builders | Issuance conditions may affect habitat and require §7 | Once criteria satisfied, issuance is mandatory and not subject to §7 | GRANTED for the specific rule that flood insurance issuance is non-discretionary under Home Builders; §7 not triggered |
Key Cases Cited
- National Wildlife Federation v. FEMA, 345 F. Supp. 2d 1151 (W.D. Wash. 2004) (NFIP considered an ongoing program with potential §7 implications (district court))
- TVA v. Hill, 437 U.S. 153 (1978) (broad, mandatory §7 interpretation of agency action)
- Pacific Rivers Council v. Thomas, 30 F.3d 1050 (9th Cir. 1994) (ongoing agency action under LRMPs requires consultation)
- Turtle Island Restoration Network v. NMFS, 340 F.3d 969 (9th Cir. 2003) (affirmative agency action requirement for §7)
- Washington Toxics Coalition v. EPA, 413 F.3d 1024 (9th Cir. 2005) (ongoing discretion to alter/withdraw registrations implicated by §7)
- NRDC v. Houston, 146 F.3d 1118 (9th Cir. 1998) (discretion to change under enabling statutes can trigger §7)
- Lane County Audubon Soc’y v. Jamison, 958 F.2d 290 (9th Cir. 1992) (forest plans with ongoing effects may trigger §7)
- Karuk Tribe of Cal. v. United States Forest Service, 640 F.3d 979 (9th Cir. 2011) (NOI/Plan decisions and agency discretion determine §7 duty; “authorization” vs. discretionary action)
- Florida Key Deer v. Paulison, 522 F.3d 1133 (11th Cir. 2008) (Home Builders concept applied to non-discretionary issuance)
- Home Builders Institute v. Defenders of Wildlife, 551 U.S. 644 (2007) (issuance of flood insurance deemed non-discretionary under §7)