230 F. Supp. 3d 1106
N.D. Cal.2017Background
- The Yurok and Hoopa Valley Tribes and fishing groups challenged the Bureau of Reclamation (Bureau) and NOAA Fisheries (NMFS), alleging violation of 50 C.F.R. § 402.16 by failing to reinitiate formal ESA consultation after C. shasta infection rates in juvenile salmon exceeded the incidental-take trigger in 2014–2015.
- The 2013 NMFS Biological Opinion (BiOp) set an incidental-take trigger of 49% (QPCR measure). Monitoring showed 81% infection in 2014 and 91% in 2015; 2016 measured ~48%.
- Plaintiffs sought declaratory relief that reinitiation was required and a preliminary injunction requiring protective flows (winter–spring flushing and emergency dilution flows) while reinitiation/completion of formal consultation occurred.
- Defendants and irrigation-intervenors argued (inter alia) that: NMFS is not a proper defendant for some claims; reinitiation had occurred (mooting relief); review must be limited to the administrative record; and proposed flows were not narrowly tailored and risked harm to other species and irrigators.
- Court: dismissed Section 9 “taking” claim against NMFS; denied other dismissal arguments; held ESA citizen-suit and APA failure-to-act frameworks allow broader review but the court elected to decide merits on the administrative record; ruled the agencies violated 50 C.F.R. § 402.16 by delaying reinitiation for ~2 years and granted preliminary injunctive relief tailored to the parties’ experts to refine.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Cognizability of reinitiation claim against NMFS | NMFS must reinitiate and can be sued (Ninth Circuit precedent) | Bennett and agency-role arguments: ESA citizen-suit doesn’t provide suit against Secretary/consultant; NMFS has no duty to reinitiate | Court: Reinitiation claim cognizable against NMFS under Ninth Circuit precedent (Salmon Spawning et al.) |
| Cognizability of Section 9 taking claim against NMFS | (Plaintiffs sued both agencies) | NMFS does not operate the project and cannot be liable for takings | Court: Dismissed Count III as to NMFS (no cognizable Section 9 claim against consulting agency) |
| Scope of review (administrative record vs extra-record evidence) | ESA citizen-suit and APA failure-to-act permit extra-record evidence; Washington Toxics/Kraayenbrink | Defendants: APA review principles should limit to administrative record; Karuk Tribe suggests record review | Court: ESA citizen-suit and APA failure-to-act permit extra-record consideration, but court chose to decide merits on administrative record (DENIED motion to limit review but relied on AR) |
| Failure to reinitiate and remedy (injunction) | Exceeding incidental-take trigger and new information required immediate reinitiation; two-year delay was substantial procedural violation; preliminary injunctive flows are appropriate and supported by best available science | Defendants: reinitiation mooted by recent letters; BiOp presumed valid during consultation; injunctive relief not narrowly tailored; harms to suckers and irrigators; factual disputes require hearing | Court: Agencies violated §402.16 by delaying reinitiation; claim not moot because effective relief (injunction) still available; substantial procedural violation warrants injunction; ordered flushing and emergency dilution flows while consultation proceeds and directed experts to submit detailed plan by March 9, 2017 |
Key Cases Cited
- Bennett v. Spear, 520 U.S. 154 (holding limits on suing the Secretary under the ESA citizen-suit provision)
- Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220 (9th Cir.) (duty to reinitiate consultation lies with both action and consulting agencies)
- Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059 (9th Cir.) (consulting agency obligated to reinitiate consultation)
- Environmental Protection Info. Ctr. v. Simpson Timber Co., 255 F.3d 1073 (9th Cir.) (reinitiation requires new BiOp before action may continue)
- Washington Toxics Coalition v. EPA, 413 F.3d 1024 (9th Cir.) (ESA citizen-suit provides an independent remedy; injunctive relief may be appropriate for procedural ESA violations)
- Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006 (9th Cir.) (discussed in scope-of-review context)
- Arizona Cattle Growers’ Ass’n v. U.S. Fish & Wildlife Serv., 273 F.3d 1229 (9th Cir.) (incidental-take statement triggers and safe-harbor invalidation upon exceedance)