347 F. Supp. 3d 465
E.D. Cal.2018Background
- Plaintiffs (NRDC-led coalition) challenge 2014–2015 water diversions/transfers under long-term Sacramento River Settlement (SRS) contracts, alleging they caused temperature-dependent egg/fry mortality of ESA-listed winter-run and spring-run Chinook and thus unlawful "take" under ESA §9.
- The Sixth Supplemental Complaint asserts Section 9 claims against SRS Contractors and the Bureau of Reclamation (Reclamation); two discrete theories remain against Reclamation: approval of water transfers and failure to require GCID to divert from Stony Creek instead of the Sacramento River.
- NMFS issued a 2009 BiOp with an RPA addressing temperature management (including 56°F TCPs and End-of-September carryover storage performance measures) and an ITS; the ITS disclaims coverage for nondiscretionary deliveries under SRS Contracts.
- In 2014–2015 (Critical Years) Shasta/Keswick reservoir cold-water pool was insufficient, modeling (Martin model) and agency findings attribute very high temperature-dependent mortality to those years; defendants proffer contrary expert evidence disputing lethal temperature thresholds and attribution.
- Procedurally the court considered cross-motions for summary judgment and a motion to dismiss; it treated ESA §9 claims as not limited to the administrative record (following Ninth Circuit precedent permitting extra-record evidence for ESA citizen suits).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Plaintiffs are entitled to summary judgment on §9 take (SRS Contractors & Reclamation) based on 2014–2015 temperature-related mortality | The measured/ modeled temperatures and NMFS analyses show substantial egg/fry mortality caused by SRS diversions/transfers and Reclamation approvals; therefore undisputed take occurred | Defendants contest key factual predicates (temperature thresholds, causation, volumes/timing of transfers, admissibility of some evidence); proximate causation and factual disputes remain | Court DENIED Plaintiffs' motion: material factual disputes (e.g., contested lethal temperature thresholds and causation links) preclude summary judgment |
| Whether Reclamation's §9 liability claim should be dismissed for failure to provide adequate 60‑day ESA notice | Notice letter (Aug 10, 2015) alerted Reclamation to excessive releases tied to SRS demands and potential violations, including discretionary transfers | Reclamation contends notice did not specify transfer approvals or the Stony Creek theory; notice insufficient for some theories | Court DENIED dismissal as to the transfer theory (notice sufficient) but GRANTED dismissal as to the Stony Creek theory (not put on notice) |
| Whether ESA §9 claim against Reclamation is barred because it challenges wholly past actions or lacks likely future violations | Plaintiffs point to climate change, likelihood of recurring drought, and Reclamation's continued transfer approvals (including programmatic transfer efforts) making future recurrence plausible | Defendants argue challenge concerns past conduct only and future conditions differ; reinitiation of consultation reduces likelihood | Court DENIED dismissal: factual disputes intertwined with merits but plaintiffs presented sufficient evidence of likely recurrence to survive dismissal |
| Whether the NMFS BiOp/ITS insulates Reclamation from §9 liability for the challenged actions | Plaintiffs argue ITS terms/conditions and performance measures were not met and ITS does not cover nondiscretionary deliveries or exceeded performance measures | Defendants argue consultation, NMFS concurrence on some 2015 changes (e.g., target temperatures), and coordination show compliance with ITS | Court DENIED summary judgment for defendants: genuine factual disputes exist about whether ITS terms/conditions and RPA performance measures were violated; reinitiation of consultation is not an automatic bar to §9 liability |
Key Cases Cited
- Sweet Home Chapter of Communities for a Great Oregon v. Babbitt, 515 U.S. 687 (Sup. Ct.) (upholding regulatory definition of "harm" as encompassing habitat modification while affirming proximate-causation/foreseeability limits)
- Paroline v. United States, 572 U.S. 434 (Sup. Ct.) (explaining limits of strict but-for causation and adopting relative-role approach where aggregate causes make but-for proof impossible)
- Western Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir.) (district courts may consider extra-record evidence for ESA citizen-suit claims)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (Sup. Ct.) (Article III standing requirements: injury-in-fact, traceability, redressability; standard at summary-judgment stage)
- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (Sup. Ct.) (citizen-suit statute interpreted to require reasonable likelihood of future violations for injunctive relief in Clean Water Act context)
- Aransas Project v. Shaw, 775 F.3d 641 (5th Cir.) (discussing proximate cause/foreseeability limits in ESA water-management takings context)