ORDER RE MOTIONS FOR SUMMARY JUDGMENT, MOTIONS TO STRIKE, AND MOTION TO DISMISS
INTRODUCTION
This order addresses parallel motions brought in two related cases, Yurok Tribe v. Bureau of Reclamation, No. 16-cv-6863, and Hoopa Valley Tribe v. Bureau of Reclamation, No. 16-CV-4294. The plaintiffs in these two cases are tribes and fishin'g associations, seeking to protect Southern California Northern California Coast Coho salmon in the Klamath River from negative impacts of the Klamath River Project. In both cases plaintiffs have moved for summary judgment on their first claim against the federal defendants, asserting that the defendants violated 50 C.F.R 402.16, an implementing regulation of the Endangered Species Act (“ESA”), by failing to reinitiate formal consultation following two years of record rates of disease among Coho salmon in the Klamath River. Plaintiffs seek a declaratory judgment that the federal defendants have violated the ESA and an injunction putting protective water flows in place to reduce disease rates while the federal defendants complete the formal consultation process.
The federal defendants and intervenor defendants oppose the motions. They have also filed motions to limit review to the Administrative Record. Yurok Dkt. No. 42; Yurok Dkt. No. 43. In addition, before the plaintiffs filed their motions for summary judgment, and before the Yurok plaintiffs filed their case, the federal defendants moved to dismiss, or in the alternative to stay, the claims brought by Hoopa Valley. Hoopa Dkt. No. 33. This motion to dismiss has not yet been addressed and remains ripe.
With regard to the motion to dismiss against Hoopa Valley, I conclude that Claim III, unlawful taking of a listed species, is not cognizable against the National Marine Fisheries Service (“NMFS”) because NMFS does not participate in running the Klamath Project and so is not responsible for any taking. The remaining claims are cognizable, are not moot, and should not be stayed. The motion to dismiss is GRANTED with regard to Claim III as brought against NMFS and is DENIED in all other respects.
I conclude that plaintiffs’ reinitiation claim against the United States Bureau of Reclamation (“Bureau”) is brought under the ESA citizen suit provision and that review of that claim is not limited to an administrative record. The claim against NMFS, although brought under the Administrative Procedure Act (“APA”), is a failure to act claim and is therefore similarly not limited to an administrative record. I therefore DENY defendants’ motion to limit review. Notably, however, I would reach the same result reviewing these claims under the administrative record as I do considering the extra-record evidence. As a result, to simplify the issue, and to avoid any confusion or potential conflicts regarding the scope of extra-record evidence permitted for each claim, I will rely exclusively on the record evidence to assess the merits of plaintiffs’ reinitiation claims. Because the parties do not dispute that extra-record evidence may be considered to assess standing and to determine whether injunctive relief is appropriate, I will consider the extra-record evidence, where applicable, for these limited purposes.
With regard to the motions for summary judgment, I conclude that the federal defendants violated 50 C.F.R. 402.16 because
BACKGROUND
I. FACTUAL BACKGROUND
This case concerns the rate of Ceratanova shasta (“C. shasta”) infection among Coho salmon in the Klamath River. Yurok Dkt. No. 8 at 1. Water flows on the Kla-math River are altered and lowered by the Klamath Irrigation Project, a water project that provides water to irrigation districts in Oregon and Northern California. Id. The Klamath Project is operated by the Bureau, a federal agency that is required to comply with ESA regulations that prohibit the taking of any endangered or threatened species.
The history of the Klamath Project and its impact on the Coho salmon is long and complex, and will be discussed in greater detail when this Order addresses the motions for summary judgment. Underlying the motions are these salient facts. The Bureau is bound by a 2013 Biological Opinion and incidental take statement that outlines the projected impact of the Klamath Project’s operations on threatened species and sets the permissible C. shasta disease rate among Coho salmon at 49 percent. AR 1043-1075. In 2014 and 2015, the Klamath River’s Coho salmon population suffered unprecedented outbreaks of C. shasta, far exceeding the incidental take maximum outlined in the NMFS incidental take statement: 81 percent infection in 2014 and 91 percent in 2015. AR 502. In their complaints and motions for summary judgment, plaintiffs asserted that, per ESA regulations, following this violation of the incidental take statement, the Bureau and NMFS (collectively, “federal defendants”) were required to reinitiate and complete formal consultation on the Klamath Project’s operations, but failed to do so. See e.g., Yurok Dkt. No. 8 at 2.
In January, 2017, weeks after plaintiffs filed their motions for summary judgment, the Bureau sent letters to NMFS and FWS stating that it wanted to clarify that the agencies were now engaged in formal consultation. AR 0001-04; AR 0005-08. The Hoopa Valley plaintiffs contest that these letters are sufficient to show that the federal defendants have in fact reinitiated formal consultation. In contrast, the Yurok plaintiffs now concede that the federal defendants have reinitiated formal consultation but ask the court to order the defendants to perfect their formal consultation by following the procedures outlined in Section 402.14 for conducting formal consultation generally.
II. PROCEDURAL BACKGROUND
On July 29, 2016, the Hoopa Valley Tribe filed suit against the Bureau and NMFS seeking declaratory and injunctive relief and alleging that the federal defendants are in violation of the ESA because they have failed to reinitiate formal consultation on the impact of Klamath Project operations on threatened Coho salmon.
A. Motion to Dismiss
The federal defendants moved to dismiss all of these claims, asserting that Claims I, III, and IV were not cognizable against NMFS, that Claim III failed against the Bureau because plaintiffs had failed to show an imminent Section 9 violation and because the Bureau had immunity from Section 9 liability, and that Claims I, II, & IV were “prudentially moot” because the agencies had already begun “informal consultation.” Hoopa Dkt. No. 33. In the alternative, the federal defendants requested that the court stay claims I, II, and TV so that the agencies could focus on their informal consultation process. Id. at 22. The briefing and hearing schedule on the motion to dismiss was originally extended by stipulation of the parties. After the Yurok case was filed and the Hoopa Valley and Yurok plaintiffs filed motions for summary judgment, the court extended the hearing on the motion to dismiss to be heard at the same time as these summary judgment motions.
B. Motion for Partial Summary Judgment
The Yurok Tribe and commercial and conservation fishing groups filed their complaint on November 29, 2016, mostly mirroring the claims raised by Hoopa Valley. Yurok Dkt. No. 1. The Yurok Tribe’s claims differ in two primary ways: (1) their Claim II does not specifically challenge the 2013 Biological Opinion (“BiOp”) but instead alleges generally that both the Bureau and NMFS are in violation of their substantive duties under Section 7(a)(2) of the ESA; and (2) their Claim III, the “taking” claim, is asserted only against the Bureau. Id.
On November 30, 2016, and December 1, 2016, the Hoopa Valley and Yurok plaintiffs moved for partial summary judgment on their failure to reinitiate claims, seeking a declaratory judgment that the Bureau and NMFS are in violation of their legal duty to reinitiate formal consultation and requesting injunctive relief. Yurok Dkt. No. 8; Hoopa Dkt. No. 69. Now that the agencies have exchanged letters explicitly stating that they are engaged in formal consultation, plaintiffs have made minor modifications to their requested relief. At the January 27, 2017 hearing plaintiffs clarified that they currently seek three forms of relief: (1) an order directing NMFS and the Bureau to perfect reinitiation of formal consultation by following the procedures outlined in Section 402.14; (2) a declaratory judgment that the Bureau is in violation of Section 7(a)(2); and (3) in-junctive relief while formal consultation is ongoing. Because the Bureau will “lock in” the 2017 irrigation allocation around April 1, 2017, and prevention flows may be needed sooner to prevent additional harm to the Coho salmon, plaintiffs ask this Court to issue a decision on this motion by mid-February, 2017. Id. In support of their motion for partial summary judgment,
The federal defendants oppose plaintiffs’ motion for summary judgment, arguing that the claim for declaratory relief is moot because the agencies have already reiniti-ated formal consultation. They add that plaintiffs are not entitled to injunctive relief because (1) the requested relief is not narrowly tailored to the alleged procedural violation; (2) the requested relief may impact other endangered species in the Kla-math River; (3) plaintiffs have not shown that they or the Coho salmon will be irreparably harmed absent the requested measures; ' and (4) the balance of harms weighs against granting plaintiffs’ requested relief. Federal Defendants’ Opposition to Motion for Summary Judgment
The Intervenor Defendants—irrigation and drainage districts that hold water contracts with the Klamath Project—-also oppose plaintiffs’ motion, asserting that plaintiffs’ claim for declaratory relief fails because it was mooted when the agencies reinitiated formal consultation and because plaintiffs have failed to show that the Kla-math Project causes each and every incidence of fish disease in the Klamath River. Intervenor Opposition to Motion for Summary Judgment (“Int. Oppo.”) Yurok Dkt. No. 48. They also assert that plaintiffs should not be awarded injunctive relief because (1) plaintiffs’ proposed protective flows have not been properly tested through a complete scientific process; (2) the proposed flows will require withholding over 100,000 acre-feet of water from the irrigation districts that rely on water for agriculture; (3) plaintiffs have failed to show irreparable injury; and (4) no injunction should be granted until the parties have had an opportunity to resolve any scientific factual disputes through an evi-dentiary hearing or through discovery. Id.
Plaintiffs argue in reply that their claim is not moot because the agencies have not completed formal consultation and the court may still grant effective relief. They maintain that their requested injunctive relief is supported by the best available science and is needed to protect the Coho salmon. Yurok Reply Dkt. No. 54.
C. Motion to Limit Review
On December 22, 2016, federal defendants filed a motion to limit review to the administrative record and to strike plaintiffs’ extra-record evidence.
Plaintiffs oppose the motion to limit review and to strike, arguing that the failure to consult claim arises under the ESA’s citizen suit provision, not the APA, and therefore that the APA’s scope of review
I heard oral argument on all of these motions on January 27, 2017.
MOTION TO DISMISS (BROUGHT AGAINST HOOPA VALLEY ONLY)
The federal defendants have moved to dismiss Hoopa Valley’s claims. Motion to Dismiss (“MTD”) at 1 (Hoopa Dkt. No. 33). They seek to dismiss Counts I, III, and IV against NMFS on the grounds that plaintiffs have failed to make out a cognizable claim against that entity, Count III against the Bureau because plaintiffs have failed to show an imminent Section 9 violation and because the Bureau is protected from Section 9 taking liability since it is operating within the terms and conditions of the 2013 BiOp’s incidental take statement, and Counts I, II, and IV against both entities because those claims are “prudentially moot.” Id. They also assert that, in the alternative, Counts I, II, and IV should be stayed pending the agencies’ completion of the consultation process. Id. at 2.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” See Bell Atl. Corp. v. Twombly,
In deciding whether the plaintiff has stated a claim upon which relief can be granted, the Court accepts the plaintiffs allegations as true and draws all reasonable inferences in favor of the plaintiff. See Usher v. City of Los Angeles,
DISCUSSION
I. IS THERE A COGNIZABLE CLAIM AGAINST NMFS FOR COUNTS I, III, & IV?
The federal defendants argue that Counts I, III, and IV are not cognizable against NMFS. They assert that Count I fails under the ESA because the ESA citizen suit provision does not provide a cause of action for failure to reinitiate against the Secretary and fails under the APA because NMFS has no legal duty to reinitiate. Id. at 8. They contend that Count III is not cognizable because NMFS, as a consulting agency, does not participate in the “take” of any species. Id. at 13. And, they argue that Count IV fails because Section 1855(b)(4)(B) of the Magnuson-Stevens Fishery Conservation Act (“MSFCMA”) does not place any duty on consulting agencies, like NMFS. Id. at 17.
1. ESA
The federal defendants contend that the citizen suit provision of the ESA does not provide a cause of action for Count I against NMFS. Section 1540(g)(1)(A) of the citizen suit provision allows any person to bring a civil suit “to enjoin any person, including the United States and 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 any provision of this chapter or regulation issued under the authority thereof.” On its face, this broad language would seem to allow a plaintiff to bring suit against NMFS for violations of Section 402.16 and Section 402.14(i)(4), which are regulations implementing Section 7 of the ESA.
But the federal defendants correctly argue that this claim is impermissible against NMFS because NMFS is an administrator of the ESA and the Supreme Court has held that Section 1540(g)(1)(A) does not provide a cause of action to sue the Secretary (which includes the Secretary of the Interior, Secretary of Commerce, and their delegate services, such as NMFS) for “failure to perform [its] duties as administrator of the ESA.” Bennett v. Spear,
“The opposite contention is simply incompatible with the existence of § 1540(g)(1)(C), which expressly authorizes suit against the Secretary, but only to compel him to perform a nondiscre-tionary duty under § 1533. That provision would be superfluous—and, worse still, its careful limitation to § 1533 would be nullified—if § 1540(g)(1)(A) permitted suit against the Secretary for any ‘violation’ of the ESA.”
Id.
Bennett effectively holds that the Secretary may only be sued under the ESA in its capacity as a consulting agency pursuant to the specifications outlined in Section 1540(g)(1)(C). Id. As Hoopa Valley’s failure to reinitiate claim does not fall under the non-discretionary duties outlined in Section 1553, and Hoopa Valley seeks to sue NMFS in its capacity as a consulting agency, Hoopa Valley’s reinitiation claim against NMFS cannot be sustained under the ESA.
2. APA
The federal defendants similarly argue that Count I cannot be maintained against NMFS under the APA because NMFS, as a consulting agency, does not have a duty to reinitiate consultation. MTD. at 10.
They contend that -there is no duty, in the ESA or its regulations, that the Service (the consulting agency) reinitiate consultation. Id. They note that Section 402.14(i)(4), which provides that reinitiation of formal consultation is mandatory if the incidental take maximum is triggered, refers only to the action agency and does not state that the Service, here NMFS, is obligated to reinitiate consultation. 50 C.F.R. § 402.14(f)(4) (“If during the course of the action the amount or extent of incidental taking, as specified under paragraph (i)(l)(i) of this Section, is exceeded, the Federal agency must reinitiate consultation immediately.”) (emphasis added). They further argue that Section 402.16
While the federal agencies’ arguments might be compelling if this was an issue of first impression, the Ninth Circuit has already addressed this precise issue multiple times and confirmed that both the action agency and the consulting agency have a duty to reinitiate consultation. See Salmon Spawning & Recovery All. v. Gutierrez,
The federal defendants’ effort to distinguish this clear precedent is wholly unpersuasive. Formal consultation is a collaborative process that requires the participation of both the Bureau and NMFS. The purpose of reinitiating formal consultation is not simply to check off a procedural box, but to complete a formal consultation process that ensures to the extent possible that there are no substantive violations of the ESA. Both the NMFS and Bureau have a clear obligation to participate in and complete this reinitiation process. As the Ninth Circuit has already held, “[t]he duty to reinitiate consultation lies with both the action agency and the consulting agency.” Salmon Spawning,
B. Count III
The federal defendants assert that Count III, unlawful “taking” of a listed species, is not cognizable against NMFS because NMFS does not participate in operating the Klamath Project and so cannot be responsible for any “takings.” MTD. at 13. Plaintiffs do not attempt to argue otherwise and it appears clear that NMFS’s role with regard to the Klamath Project is limited to providing the Bureau with advice and biological opinions—actions which do not directly lead to the “taking” of any species. Count III is DISMISSED with regard to NMFS.
C. Count IV
The federal defendants assert that Count IV is not cognizable against NMFS because the statutory provision plaintiffs cite applies only to action agencies like the Bureau, and not to NMFS. MTD. at 17. In
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.
16 U.S.C. § 1855(b)(4)(B).
Plaintiffs do not dispute that Section 1855(b)(4)(B) does not apply to NMFS and explain that the reference to this section was a mistake—plaintiffs intended to reference 16 U.S.C. § 1855(b)(4)(A), which reads as follows:
If the Secretary receives information from a Council or Federal or State agency or determines from other sources that an action authorized, funded, or undertaken, or proposed to be authorized, funded or undertaken, by any State or Federal agency would adversely affect any essential fish habitat identified under this chapter, the Secretary shall recommend to such agency measures that can be taken by such agency to conserve such habitat.
16 U.S.C. § 1855(b)(4)(A). It is clear that the quoted section does apply to NMFS. MTD. Oppo. at 24. The argument that Claim IV should be dismissed because Section 1855(b)(4)(B) does not apply to NMFS is now moot as plaintiffs have since amended their complaint and reference the correct section in the operative version. Second Amended Complaint ¶ 108 (Hoopa Dkt. No. 87).
In their reply the federal defendants argue that 16 U.S.C. § 1855(b)(4)(A) does not impose any duty on NMFS until it has received an assessment from a Federal agency. MTD. Reply at 12 (Hoopa Dkt. No. 60). They argue that because the Bureau has not provided an assessment to NMFS, it has no duty to act. Id. But this argument is contradicted by the language of the statute which reads, “If the Secretary receives information from a Council or Federal or State agency or determines from other sources” that an agency action would adversely affect any essential fish habitat “the Secretary shall recommend to such agency measures that can be taken by such agency to conserve such habitat.” 16 U.S.C. § 1855(b)(4)(A). The language of this section indicates that the Secretary has a duty to provide a recommendation even in circumstances where the Bureau has not provided an assessment, if it has otherwise determined that an agency action would adversely affect essential fish habitat. Whether NMFS has made such a determination is an unresolved factual question.
Claim IV is cognizable against NMFS.
II. CLAIM III AGAINST THE BUREAU
The federal defendants assert that plaintiffs’ taking claim against the Bureau fails because the 2013 BiOp’s incidental take statement provides a safe harbor for Section 9 liability. Reply at 14. The defendants note that Section 7(c)(2) of the ESA states that “any taking that is in compliance with the terms and conditions specified in a written [incidental take] statement provided under subsection (b)(4)(iv) shall not be considered to be a prohibited taking of the species concerned.” 16 U.S.C.A. § 1536(a)(2). The “terms and conditions” of an incidental take statement are the rules “with which the action agency must comply to implement the reasonable and prudent measures” outlined by the consulting agency as necessary to limit impact to the relevant species. Oregon Natural Resources Council v. Allen,
The Ninth Circuit has repeatedly indicated that when an agency exceeds the “trigger” of an incidental take statement, the relevant agencies are required to reini-tiate formal consultation and the safe harbor provision becomes invalid. Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife,
The Ninth Circuit has never applied this language to find an agency hable for Section 9 penalties after exceeding the “trigger” of an incidental take statement; instead, this language comes exclusively from discussions regarding whether particular “triggers” were appropriate. It is therefore unclear exactly when or how the safe harbor provision of an incidental take statement becomes invalid after the incidental take trigger is met and how courts should analyze a subsequent Section 9 claim. The federal defendants argue that the safe harbor provision would be virtually worthless if exceeding the “trigger” of the incidental take statement meant that the agency was immediately subject to Section 9 penalties. This is a strong argument and harmonizes with the language of Section 7(c)(2), which provides that “any taking that is in compliance with the terms and conditions” of an incidental take statement, not just those below the “trigger” provided, are protected. The safe harbor provision would be problematically weak if the “triggering” action itself subjected the agency to Section 9 penalties, even though it had complied with all the terms and conditions outlined in the relevant biological report.
However, the Bureau’s assertion that the safe harbor remains in place indefinitely as long as it continues to comply with the terms and conditions of the incidental take statement cannot be reconciled with the Ninth Circuit cases. Even if I accept that the safe harbor shields the Bureau from liability on the initial triggering take, given the Ninth Circuit’s statements in Arizona Cattle Growers’ Association, Allen, and Salazar, I cannot conclude that the safe harbor protects the Bureau for subsequent violations as well. Because the incidental take statement was triggered in 2014 when C. shasta rates reached 81 percent, it is possible that the safe harbor provision has been invalid since 2015. For the purposes of pleading, plaintiffs have demonstrated that it is plausible that the safe harbor provision is no longer valid and cannot protect the Bureau from Section 9 liability for future takings.
The federal defendants also argue that Count III must be dismissed because plaintiffs have failed to show an ongoing “taking” violation or an imminent future
Defendants contend that a future violation is not imminent because higher water levels are likely to permit disease-management measures that will keep the incidence of C. shasta below 49 percent.
Plaintiffs have shown that in 2014 and 2015, while the Bureau was operating the Klamath Project in accordance with the 2013 BiOp, the infection rate for C. shasta greatly exceeded the incidental take maximum of 49 percent, reaching 81 percent in 2014 and 91 percent in 2015. Although 2014 and 2015 were drought years, these infection rates, well over the incidental take maximum, indicate a strong likelihood of future infection rates above 49 percent even in substantially wetter years. Although the federal defendants point out that the 2016 infection rates did not exceed 49 percent, the 2016 rates still reached 48 percent, just one percent under the trigger. This high infection rate, in a much wetter year, is not particularly comforting; plaintiffs assert that it likely would have been higher if not for a controlled spill event in March 2016 and increased precipitation that allowed the Bureau to release flows above the 2013 BiOp mandatory mín-imums in the winter and fall. MTD. Oppo.
Plaintiffs have made a strong showing that infection rates are likely to exceed the incidental take statement’s 49 percent trigger in 2017 if the Bureau continues to operate the Klamath Project in accordance with the 2013 BiOp’s minimum flows. This is more than sufficient to show the likelihood of an imminent future Section 9 take. Plaintiffs have made out a valid Section 9 claim against the Bureau.
III. SHOULD CLAIMS I, II & IV BE DISMISSED AS PRUDENTIALLY MOOT?
In their motion to dismiss, filed in October, 2016, the federal defendants asserted that Counts I and II were “prudentially moot” because the agencies were already involved in some kind of informal consultation process, and that Count IV was “prudentially moot” because the agencies had a schedule in place to complete consultation under the Magnuson Stevenson Act. MTD. at 19. The federal defendants have since updated their position, now asserting that claims I and II are entirely moot because the agencies have definitively reinitiated formal consultation. I address these arguments in the mootness discussion on the motion for summary judgment. For the reasons outlined there, I conclude that claims I and II are not moot because plaintiffs may still be granted effective relief on these claims.
The federal defendants maintain that Claim IV is moot because the agencies have a schedule in place to complete consultation. MTD. at 19. Plaintiffs do not dispute this but argue that it is still only speculative whether NMFS will actually provide the required recommendations. They note that NMFS’s obligation under 16 U.S.C. § 1855(b)(4)(A) is not to consult, but to provide recommendations to the Bureau. They highlight that it is undisputed that NMFS has not yet complied with this obligation. 16 U.S.C. § 1855(b)(4)(A) (“[T]he Secretary shall recommend to such agency measures that can be taken by such agency to conserve such habitat.”). While it appears the agencies are now working to meet the requirements of 16 U.S.C. § 1855(b)(4)(A), they have not yet done so. The claim does not yet appear moot.
IV. SHOULD CLAIMS I, II & IV BE STAYED?
In the alternative, the federal defendants request that Counts I, II, and IV be stayed while the agencies complete consultation. MTD. at 22. The defendants argue that a stay will allow the agencies to focus on completing the consultation process and will not cause hardship to plaintiffs because there is no imminent threat of danger to the Coho salmon. As discussed with regard to Count III, plaintiffs have presented a convincing case that the Bureau is likely to exceed the incidental take statement trigger in 2017 if they continue to operate the Klamath Project in compliance with the 2013 BiOp minimum flow requirements. The 2013 BiOp concludes generally that C. shasta is the biggest threat to Coho salmon and its no-jeopardy determination relies on the presumption that C. shasta rates will not exceed the incidental take trigger. AR 1011. Because continued C. shasta rates above the incidental take trigger will have a negative effect on Coho salmon, and this total impact has not been studied, there is a likelihood of imminent harm to the Coho salmon. Plaintiffs have demonstrated a need for
MOTION TO STRIKE
The federal defendants move to limit review on plaintiffs’ motions for summary judgment to the administrative record. The defendant-intervenors’ unopposed motion to join the motion to limit review is GRANTED. However, because I conclude plaintiffs’ claims are not limited to an administrative record, the motion to strike and limit review is DENIED. Nevertheless, because my substantive analysis of the motion for summary judgment would not change if I were to limit review to an administrative record, and because the extra-record evidence raises a number of hard-to-resolve practical and procedural issues, I only consider the record evidence in evaluating the merits of plaintiffs’ reini-tiation claims.
DISCUSSION
A. Failure to Reinitiate Consultation Under the Endangered Species Act
Plaintiffs allege that the Bureau and NMFS failed to reinitiate formal consultation on the Klamath Project operations, in violation of ESA implementing regulation 50 C.F.R. § 402.16. Section 402.16 provides in relevant part:
Reinitiation of formal consultation is required and shall be requested by the Federal agency [i.e., the Bureau] or by the Service [i.e., NMFS], where discretionary Federal involvement or control over the action [i.e., the Klamath Project operations] has been retained or is authorized by law and:
(a)If the amount or extent of taking specified in the incidental take statement is exceeded;
(b) If new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered;
(c) ...; or
(d) ....
50 C.F.R. § 402.16. “The duty to reinitiate consultation lies with both the action agency and the consulting agency. Salmon Spawning,
Plaintiffs contend that federal defendants’ duty to reinitiate consultation has been triggered under paragraph (a) because in 2014 and 2015 C. Shasta infection rates exceeded the permissible limit set forth in the incidental take statement, and under paragraph (b) because new information reveals effects of the Klamath Project operations that may affect threatened Coho salmon to an extent not previously considered. Yurok Dkt. No. 1 at 30-31.
B. Scope of Review
While plaintiffs bring the same failure to reinitiate claims against both the Bureau and NMFS, the claim against the Bureau may be brought under the ESA citizen suit provision, while the claim against NMFS, as discussed above, may only be brought under the APA. The appropriate scope of review is not necessarily the same for each claim. I will address them each in turn.
1. The ESA claim against the Bureau
The parties do not dispute that the claim against the Bureau is brought under the ESA’s citizen suit provision, but dispute whether the APA’s scope of review, nevertheless, applies to that claim.
In response, plaintiffs argue that the APA’s scope of review does not govern their claim brought under the ESA citizen suit provision, which “creates an express, adequate remedy” at law. Washington Toxics Coal. v. EPA,
Plaintiffs further contend that although the APA’s scope and standard of review are set forth in the same section, 5 U.S.C. § 706, “courts have not treated them as indivisible, particularly where the case challenges an agency’s failure to discharge a legal duty.” Dkt. No. 44 at 12. In support of their argument, plaintiffs rely on the Ninth Circuit’s decisions in Washington Toxics and Kraayenbrink, cases where the court considered whether a federal agency’s failure to consult violated the ESA.
In Washington Toxics, plaintiffs brought an ESA citizen suit against the Environmental Protection Agency (“EPA”) for its alleged failure to consult with the NMFS regarding the effects of its ongoing pesticide registrations. “After a hearing and consideration of voluminous
In Kraayenbrink, plaintiffs sued the Bureau of Land Management (“BLM”) under the ESA citizen suit provision, alleging that BLM violated the ESA by failing to consult with FWS prior to approving nationwide grazing regulations. The district court admitted plaintiffs’ extra-record evidence in support of their claim that the regulations “may affect” endangered species and thus trigger formal consultation under the ESA. Kraayenbrink,
The Bureau and NMFS argue that plaintiffs’ reliance on Washington Toxics and Kraayenbrink is misplaced as neither case “announee[d] the wholesale (and unexplained) abandonment of administrative review principles for ESA citizen-suit claims.” Dkt. No. 42 at 12. Federal defendants further contend that these decisions are no longer good law in light of Karuk Tribe of California v. United States Forest Service, a more recent en banc Ninth Circuit decision.
In Karuk Tribe, the Ninth Circuit considered whether the Forest Service’s approval of notices of intent to conduct mining activities in the Klamath National Forest amounted to “agency action” that “may affect” threatened Coho salmon and trigger consultation. However, as noted by plaintiffs, the Ninth Circuit did not “hold” that the record review under the APA is required in ESA cases; rather, in the “Standard of Review” section the court simply stated “[b]ecause this is a record review case, we may direct that summary judgment be granted to either party based upon our review of the administrative record.” Karuk Tribe,
Other courts considering failure to act claims under the ESA have similarly rejected the argument that Karuk Tribe si
Because the ESA provides a citizen suit remedy for plaintiffs’ failure to consult claim, the APA’s record review provision does not apply and “evidence outside the administrative record [may be considered] for the limited purposes of reviewing Plaintiffs’ ESA claim.” Kraayenbrink,
2. APA claim against NMFS
While the reinitiation claim against the Bureau may be brought under the ESA, as discussed with regard to the motion to dismiss, the claim against NMFS may only be brought under the APA. Plaintiffs assert that the court may nevertheless consider extra-record evidence in reviewing the claim against NMFS because in APA failure to act cases review is not limited to the administrative record. Friends of the Clearwater v. Dombeck,
The federal defendants raise two primary objections to this argument. First, they argue that plaintiffs did not bring a “failure to act” claim under Section 706(1) of the APA, and instead brought a Section 706(2)(A) claim, alleging that the agencies’ failure to reinitiate was arbitrary and capricious. While plaintiffs reference only Section 706(2)(A) as the section authorizing their claim in the complaint, the substance of their claim—that the federal agencies have failed in a duty to reinitiate and seeking to compel the agencies to reinitiate .formal consultation—is easily read as a failure to act claim under Section 706(1). As plaintiffs’ pleadings support a failure to act claim and Section 706(1) authorizes such a claim, I will consider the reinitiation claim against NMFS as a failure to act claim.
Second, the federal defendants distinguish Friends of the Clearwater and S.F. BayKeeper as both being administrative record cases in which the court merely permitted limited supplemental materials to account for changes in circumstances while the case was ongoing, not to permit all extra-record evidence. Yurok Dkt. No. 49 at 12. See Friends of the Clearwater,
Friends of the Clearwater and S.F. Bay-Keeper make clear that review is not wholly limited to an administrative record in a failure to act case, but they are not entirely clear on what extra-record evidence may be considered. A broad reading of these cases could permit the court to review any extra-record evidence submitted in this case, while a narrower reading might limit the court to considering only particular extra-record documents. The parties have submitted a substantial amount of extra-record evidence; trying to determine whether each piece of evidence falls under a narrow reading of Friends of the Clear-water and S.F. BayKeeper would require substantial judicial resources. It is not clear that these cases permit a court to consider all extra-record evidence in a failure to act APA case. I am therefore left with the unpleasant options of (1) expending substantial time and effort parsing through the extra-record evidence provided, attempting to assess whether it should be considered in a failure to act case, and (2) adopting a potentially overbroad reading of these cases. Luckily, because I conclude that my analysis would be the same regardless of whether I review this claim under the administrative record or if I consider extra-record evidence, I can avoid making this unpalatable choice. I will limit my review of the merits of plaintiffs’ reini-tiation claims to the documents and evidence contained in the administrative record. As discussed below, this does not change the analysis as the administrative record provides ample evidence to support plaintiffs’ claims.
3. Although not required, I will limit review to the administrative record
The parties do not dispute that extra-record evidence may be considered in a record review case to demonstrate standing and the necessity for injunctive relief. Dkt. No. 42 at 1 n.l. A significant portion of the extra-record evidence in dispute has been offered for these purposes. Id. The federal defendants identify a limited number of documents that they believe do not fall under either of these categories. Plaintiffs object to this list and , assert that virtually all of these documents are offered to establish standing or to show irreparable harm and the need for injunctive relief. After reviewing these documents, I conclude that most of the extra-record evidence is indeed relevant to those issues and may be considered for those purposes.
Defendants’ motion to strike and to limit review to the administrative record is DENIED. However, in assessing the merits of the reinitiation claims, I will voluntarily limit my review to those documents included in the record.
MOTION FOR SUMMARY JUDGMENT
Plaintiffs seek summary judgment on their claim for declaratory judgment that the federal defendants have violated the ESA and implementing regulation 50 C.F.R. § 402.16 by failing to reinitiate formal consultation. They seek an order di
LEGAL STANDARD
Summary judgment on a claim or defense is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In order to prevail, a party moving for summary judgment must show the absence of a genuine issue of material fact with respect to an essential element of the non-moving party’s claim, or to a defense on which the non-moving party will bear the burden of persuasion at trial. See Celotex Corp. v. Catrett,
On summary judgment, the Court draws all reasonable factual inferences in favor of the non-movant. Id. at 255,
I. PLAINTIFFS’ REINITIATION CLAIM
A. Section 7
Plaintiffs contend that the Bureau and NMFS have failed to comply with Section 7 of the ESA by failing to reinitiate consultation following high rates of C. shasta disease among Coho salmon in 2014 and 2015. Yurok Dkt. No. 8 at 4. Section 7 prohibits federal agencies from taking any action that may jeopardize the survival of any listed species. It provides:
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 ... to be critical....
16 U.S.C. § 1536(a)(2). “Agency action” is defined broadly and includes “all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies,” 50 C.F.R. § 402.02, and includes the operation of the Klamath Project.
Section 7 lays out a consultation process where action agencies, like the Bureau, work with consulting agencies, like NMFS, to produce a biological opinion analyzing the impact that a proposed agency action will have on any listed species. 16 U.S.C. § 1536(b)(3)(a); 50 C.F.R. § 402.14(g)-(h).
If NMFS determines that an agency action will not place any listed species in jeopardy, it may include in its opinion an “incidental take statement.” The ESA prohibits any “take” of a listed species, which includes causing harm to the species itself or to the species’ essential habitat. 16 U.S.C. § 1538(a)(1); § 1532(19); § 222.102. An “incidental take statement” shields an acting agency from liability for the taking of a listed species, lays out the amount and extent of taking projected, and sets terms and conditions the agency must follow to retain its immunity. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14®. An incidental take statement provides a safe harbor to the acting agency as “any taking that is in compliance with the terms and conditions specified in [the incidental take statement] shall not be considered to be a prohibited taking of the species concerned.” 16 U.S.C. § 1536(o )(2); see 16 U.S.C. § 1536(b)(4)(C).
An incidental take statement also functions as a check on the accuracy of the biological opinion’s conclusions because any taking that exceeds the maximum take projected by the take statement triggers an obligation on the part of the agencies to reinitiate formal consultation.
Reinitiation 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
(a) If the amount or extent of taking specified in the incidental take statement is exceeded; [or]
(b) If new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered....
50 C.F.R. § 402.16 & (a)-(b).
B. The 2013 BiOp and Incidental Take Statement
The Klamath Project is currently operated in accordance with the 2013 BiOp that was completed in May, 2013 after formal consultation between the Bureau and NMFS and after years of prior consultations and environmental litigations. AR 649-1255. A brief history of these events is outlined below.
In Pacific Coast Fed’n of Fishermen’s Ass’ns v. Bureau of Reclamation (“PCFFA I”),
In 2012, the Bureau again asked NMFS to consult on the Klamath Project. NMFS 001-008. After several months of consultation, NMFS released the current 2013 BiOp which assesses the likely impact of the Project’s 2013-2023 operations. AR 649-1255. In the 2013 BiOp, NMFS identifies C. shasta as the most serious threat to Coho salmon, and notes increasing rates of C. shasta disease are largely due to “the reduction in magnitude, frequency, and duration of mainstem flows from the natural flow regime” as a result of Klamath Project operations. AR 1006. The 2013 BiOp provides for minimum spring flows and notes that while “these proposed minimum daily flows are not likely sufficient to dilute actinospore concentrations below 5 genotype II spores/L when actinospore concentrations are high, these minimum daily flows provide a limit to the increase in disease risks posed to coho salmon under the proposed action....” AR 1008-1009. The BiOp also outlines a “real-time disease management” system that would allow for pulse flows to flush out poly-chaete worms and their habitat when surplus water is available. AR 1011. Based on the minimum spring flows and the disease management plan, the NMFS concluded that the 2013-2023 operations “will result in disease risks to coho salmon that are lower than under observed POR conditions yet higher than under natural flow conditions.” AR 1012.
Because it concluded that the 2013-2023 operations would not place Coho salmon in jeopardy, the NMFS included an incidental take statement in its 2013 BiOp outlining the permissible rates of C. shasta disease among Coho salmon. AR 1043-1075. Using Chinook salmon as a surrogate measure,
C. Exceeding the Take Statement and Subsequent Agency Action
In 2014 and 2015, the first two years of operation under the 2013 BiOp, C. shasta rates among juvenile salmon exceeded the 49 percent incidental take trigger, reaching 81 percent in 2014 and 91 percent in 2015. AR 213. In July, 2015, the Bureau sent a letter to NMFS noting that “unprecedented, multi-year drought conditions have persisted which have caused variations in operations and hydrologic condi
NMFS responded in a March, 2016 letter, confirming that the C. shasta rates exceeded the incidental take statement in 2014 and 2015. AR 503. In its letter, NMFS did not suggest reinitiating formal consultation, but instead explained that it believed the 2013 BiOp was still valid because it “fully considered the expectation that disease infection rates would generally be higher in dry years” and instead proposed revising the 2013 incidental take statement to account for higher _ disease rates among the Coho salmon. Id.
In July, 2016, NMFS, the Fish and Wildlife Service (FWS), the Bureau, and the Yurok, Karuk, and Hoopa Valley Tribes organized a disease technical advisory team (“DTAT”) to compile the best available science on C. shasta in order to determine the best measures for reducing C. shasta infection rates. To assist the technical team, FWS provided four technical memos detailing the peer reviewed scientific information available on fish infection, spores, polychaetes, and geomorphic conditions in the Klamath River. AR 252-319. The Tribal technical experts used these memos to develop proposed mitigation measures to lower C. shasta infection rates and submitted a Guidance Document to DTAT in November, 2016. AR 231-319.
The Guidance Document recommends a number of different types of flows to reduce C. shasta infections. The Bureau, FWS, and NMFS provided comments on the Guidance Document, raising concerns that the Guidance Document “does not comprehensively summary [sic] the conclusions of the tech memos” and that “[a]ddi-tional detail needs to be provided for the scientific bases of timing, duration, and frequency intervals of events for all management options.” AR 133-134. Although the agencies are continuing to consult with the Tribe’s technical experts, the federal defendants have not agreed to implement any of the recommendations in the Guidance Document, two of which are at issue in plaintiffs’ request for an injunction: (1) flushing flows in the winter and spring to flush out host worms; and (2) emergency dilution flows if spore concentrations spike during juvenile salmon outmigration. AR 237-243.
D. Obligation to Reinitiate Formal Consultation
16 U.S.C. § 1540(g)(1) requires an acting agency (i.e. the Bureau) and a consulting agency (i.e. NMFS) to reinitiate formal consultation if “the amount or extent of taking specified in the incidental take statement is exceeded” or if “new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered.” 50 C.F.R. § 402.16. This first circumstance was triggered when C. shas-ta rates exceeded the 49 percent amount outlined in the incidental take statement. The second was triggered when consecutive drought years “caused variations in operations and hydrologic conditions that were not anticipated at the time the Proposed Action was analyzed in the BiOp” and resulted in much higher infection rates than the NMFS thought possible. AR 544.
It is undisputed that the Bureau and NMFS were obligated to reinitiate formal consultation after the C. shasta rates exceeded the maximum percentage permitted by the 2013 incidental take statement. The federal defendants previously disputed that formal consultation was necessary,
E. Is plaintiffs’ reinitiation claim moot?
The federal defendants assert that plaintiffs’ claim to order the agencies to reinitiate formal consultation is moot because they have already reinitiated formal consultation. Fed. Oppo. at 11. They contend that formal consultation was reinitiated at some unclear point prior to plaintiffs’ filing their lawsuit after NMFS found that the incidental take statements had been exceeded. Id. Perhaps acknowledging that their conduct and statements throughout 2016 do not support a conclusion that the agencies reinitiated consultation prior to the filing of plaintiffs’ suits,
The federal defendants assert that, because they have reinitiated formal consultation, the court can no longer provide plaintiffs with any effective relief and that the reinitiation claim is moot. They point to various cases in which courts have found reinitiation claims moot following reinitiation of formal consultation. Alliance for the Wild Rockies v. U.S. Dep’t of Agric.,
In response, plaintiffs argue that their claim is not moot because effective relief may still be granted. They distinguish the cases the defendants cite, noting that in those cases formal consultation had already been completed or the plaintiffs had not requested any injunctive relief pending completion of formal consultation. Alliance for the Wild Rockies,
Plaintiffs note that in this case, and in their motion for partial summary judgment, they have requested that the court order the federal defendants to reinitiate formal consultation and have requested an injunction in the form of specific protective flows to be put in place while the agencies complete the consultation process. Yurok Reply at 4 (Dkt. No. 54). They assert that the agencies are currently operating without a valid BiOp and that it will take the federal defendants at least six months to complete consultation and issue a new no-jeopardy finding. Id. Because it will take the agencies some time to complete their consultation process, and the flows for the 2017 season will be locked in April, they contend that an injunction is necessary. Id. Plaintiffs argue that their claims are not moot because they can still be provided effective relief in the form of an injunction.
Because plaintiffs do not merely seek declaratory relief ordering the federal agencies to reinitiate consultation, but also seek an injunction until formal consultation is completed, the court may still grant plaintiffs effective relief on their reinitiation claim. The claim is not moot.
F. Does reinitiation claim fail because 2013 BiOp must be presumed valid?
Defendants take issue with plaintiffs’ assertion that the 2013 BiOp is invalid and that the reinitiation claim remains justicia-ble because the court may still grant in-junctive relief. They contend that the 2013 BiOp must be presumed valid for the purposes of the present motion. Fed. Sur-reply at 3.
There are several problems with this argument. First, the cases the defendants cite seem to conflict with Ninth Circuit precedent which says that reinitiation of consultation does need to result in a new Biological Opinion. Simpson Timber,
Further, neither case plaintiffs rely on involved mandatory reinitiation of consultation following an incidental take violation. Defenders of Wildlife,
In contrast, in this case, the agencies are mandated to reinitiate consultation because the C. shasta rate in 2014 and 2015 exceeded the incidental take statement. While a violation of an incidental take statement does not necessarily mean that the conclusions and no-jeopardy determination of a BiOp are invalid, in this case, the high infection rates of C. shasta in 2014 and 2015 directly undermine core conclusions of the NMFS’s no-jeopardy determination, which was based on the assumption that C. shasta rates would decline over observed POR rates. C. shasta rates did not decline—they increased. And they did not just increase a little, they went up to 81 and 91 percent, well over the 49 percent observed historic high and incidental take maximum. NMFS did not study what the impact on Coho salmon would be if C. shasta rates increased and did not review the impact that consecutive years with infection rates at 81 and 91 percent would have on the Coho salmon in the long term. To the contrary, its no-jeopardy determination relied on the assumption that C. shasta rates would decrease. Because this core presumption has proved incorrect, it is unclear what analysis remains to support the BiOp’s no-jeopardy conclusion.
While defendants, plausibly argue that a BiOp is not immediately invalidated upon reinitiation of consultation in all instances, they have not convincingly shown that the 2013 BiOp should be presumed valid in this case. While it is true that plaintiffs have not moved for summary judgment on their substantive challenge to the BiOp, this does not mean the court cannot evaluate the BiOp’s merit in considering whether injunctive relief on the reinitiation claim is warranted.
G. Does reinitiation claim fail because it is not narrowly tailored?
Defendants argue that injunctive relief is not an appropriate remedy on a reinitiation claim. Fed. Oppo. at 16. The defendants nóte that any injunctive relief must be narrowly tailored to the alleged violation. Id. They assert that the only appropriate remedy for a failure to reinitiate claim is an order directing the agencies to reinitiate formal consultation, not an injunction. Id.
In response, plaintiffs assert that injunctions are an appropriate remedy for substantial procedural violations of the ESA and that courts regularly grant injunctions pending completion of formal consultation. Yurok Reply at 5. They point to Washington Toxics, in which the Ninth Circuit stated that “[i]t is well-settled that a court can enjoin agency action pending completion of section 7(a)(2) requirements.”
Defendants attempt to distinguish these cases by noting that all the cases plaintiffs cite involved either a failure to consult in the first instance or a proven substantive violation of the ESA. Yurok Fed. Sur-reply at 3 (Dkt. No. 55-1). They argue that because none of those cases involved a stand-alone failure to reinitiate claim, the court should disregard them. Id.
While none of the cases plaintiffs point to involve a stand-alone reinitiation claim, this does not mean that they should be ignored. The Ninth Circuit cases lay out a general rule that injunctive relief is an appropriate remedy for a substantial procedural violation of the ESA. Washington Toxics,
In Thomas v. Peterson, the court explained the rationale for this rule:
The ESA’s procedural requirements call for a systematic determination of the effects of a federal project on endangered species. If a project is allowed to proceed without substantial compliance with those procedural requirements, there can be no assurance that a violation of the ESA’s substantive provisions will not result.
The federal defendants’ failure to reinitiate formal consultation in a timely manner is a substantial procedural violation. As defendants note, courts have repeatedly found substantive procedural violations where agencies failed to engage in formal consultation in the first instance. See, e.g., Washington Toxics,
Although these cases discuss the failure to consult in the first instance, their analysis is equally applicable here where the federal defendants are required to reinitiate formal consultation because they have substantially exceeded their incidental take trigger and the no-jeopardy conclusion of their 2013 BiOp has been undermined. Just as with the requirement to complete formal consultation initially, the mandate to reinitiate formal consultation in this instance is a procedural requirement designed to “prevent later substantive violations.” While the 2013 BiOp provides an assessment of the Klamath Project’s impact to Coho salmon, it relies on presumptions that have proven incorrect. The BiOp offers no assessment of the impact to Coho
The BiOp itself acknowledges that the Bureau cannot maintain the status quo after exceeding an incidental take trigger, stating that “[i]n instances where the amount or extent of incidental take is exceeded, any operations causing such take must cease pending reinitiation.” AR 1075. The Bureau clearly did not cease operations of the Klamath Project following ex-ceedence of the incidental take trigger in 2014. And it did not immediately reinitiate formal consultation, as required by Section 402.16. Instead, it delayed more than two years before reinitiating consultation, continuing to run the project per the 2013 BiOp, resulting in additional alarmingly high C. shasta rates. It is not a de minimis violation for defendants to fail to reinitiate formal consultation for two years after the requirement to reinitiate was triggered where that trigger evidenced fundamental flaws in the BiOp’s no-jeopardy determination. The federal defendants’ significant delay in reinitiating formal consultation is a substantial procedural violation. Injunc-tive relief is appropriate. Washington Tox-ics,
H. Does Section 7(d) support maintaining the status quo
The federal defendants argue that an injunction is not warranted because “the ESA contemplates action agencies proceeding with actions while consultation is ongoing, even where the action agencies have not previously completed consultation.” Fed. Oppo. at 15. They cite Section 7(d), which provides that “after initiation of consultation” an agency “shall not make any irreversible or irretrievable commitment of resources” that would foreclose “the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (a)(2) .16 U.S.C. § 1536(d). The defendants insist that “[cjompliance with an existing BiOp does not foreclose development of a reasonable and prudent alternative” and so continuing to run the water project under the 2013 BiOp would not violate Section 7(d). Fed. Oppo. at 16; Oceana v. BOEM,
This is a poor argument. Section 7(d) generally works to prevent action agencies from continuing with a project prior to completing consultation, not to give projects the go-ahead. Conner v. Burford,
Since plaintiffs seek to modify the current operations of an ongoing project, not halt a planned project, Section 7(d) does not readily apply. It is therefore unclear what potential “irretrievable commitment of resources” is at stake. Plaintiffs suggest that failing to implement the proposed in-junctive relief could constitute an irretrievable commitment of resources because it could result in lasting and irretrievable damage to the Coho salmon. Yurok Reply at 14. If plaintiffs’ argument that the Coho salmon are in a weakened state and face irreparable harm is taken as true, then it is plausible that failing to implement the requested relief could constitute a violation of Section 7(d).
Even though the plaintiffs did not rely on. Section 7(d) in their motion for summary judgment, did not bring a formal claim for a Section 7(d) violation, and stated in their reply that “Section 7(d) is irrelevant,” the federal defendants still seem convinced that plaintiffs intend to rely on it. In their sur-reply the federal defendants attack any potential reliance on Section 7(d), noting that plaintiffs did not plead this claim or move for summary judgment on a Section 7(d) claim. Fed. Sur-reply at 4. As plaintiffs stated in their reply, it is no surprise that plaintiffs did not bring a Section 7(d) violation in their complaint or in their motion for summary judgment as such a violation can only occur after formal consultation is initiated. The federal defendants did not reinitiate formal consultation until after plaintiffs filed their complaints and moved for summary judgment. Yurok Reply at 14 n.6. Plaintiffs nevertheless assert that Section 7(d) supports injunctive relief as the agencies are obligated to comply with this section regardless of whether plaintiffs have brought a Section 7(d) claim.
Section 7(d) does not support maintaining the status quo: at a minimum it is neutral toward the proposed injunction and at a maximum it supports the proposed protective flow measures.
I. Does reinitiation claim fail because plaintiffs’ have failed to show causation?
The intervenor defendants argue that plaintiffs have failed to prove that reinitiation is necessary because they have not shown that the Klamath Project caused “each and every incidence of infection of a juvenile Chinook salmon” in the Klamath river. Int. Oppo. at 10. They note that establishing a “take” requires a showing of actual and proximate cause and submit that plaintiffs’ cannot show that the Kla-math Project operations caused all incidences of C. shasta infection. Id.
It is not necessary for plaintiffs’ to show that each and every incidence of C. shasta is the result of the Klamath Project. The 2013 BiOp sets the permissible rates of C. shasta among Chinook and Coho salmon and notes, in accordance with 50 C.F.R. § 402.16, that reinitiation of formal consultation is required if this take amount is exceeded. As there is no dispute that the incidental take statement was exceeded, reinitiation of formal consultation is required.
II. INJUNCTIVE RELIEF
Claims for injunctive relief are generally governed by a four-factor test: (1) there will be irreparable harm; (2) there are no adequate remedies at law; (3) a balance of hardships supports the requested relief; and (4) the relief is within the public interest. Indep. Training & Apprenticeship Program v. Calif. Dep’t of Indus. Relations,
A. Irreparable Harm
First, the federal defendants contend that plaintiffs have failed to show irreparable harm to themselves. However, all plaintiffs have demonstrated that irreparable harm to Coho salmon would cause them personal harm as well. The Yurok Tribe has demonstrated that the Yurok people’s lives are inextricably linked to salmon and that they rely on salmon for their subsistence, cultural identity, rituals, and economic well-being. O’Rourke Deck at 26-27 (Yurok Dkt. No. 47). The Hoopa Valley Tribe has demonstrated a similar interest. Hoopa Mot. at 1, (Hoopa Dkt. No. 69-1). The fishing associations have shown that they are harmed when salmon abundance drops because the potential salmon harvests decrease. They note that many of their members are subsistence fishers, relying on the salmon for their living, and that harvests have been particularly low in recent years as C. shasta infection rates have remained high. Spain Deck ¶¶ 13-14 (Yurok Dkt. No. 15); Fisher Deck (Yurok Dkt. No. 12). These interests are all sufficient to show that the plaintiffs will suffer personal harm if the Coho are irreparably harmed.
Next, the defendants assert that plaintiffs have failed to show that the Coho salmon will be irreparably harmed absent the requested relief. The federal defendants argue that plaintiffs have failed to show harm to Coho salmon at a species level. Fed. Oppo. at 18. They also contend that because it does not appear that 2017 will be a drought year, it is unlikely that the high rates of C. shasta seen in 2014 and 2015 will return. Fed. Oppo. at 19. The intervenor defendants also submit that plaintiffs have failed to show irreparable harm because many factors contribute to disease rates among Coho salmon and plaintiffs seek to enjoin the Bureau to take affirmative action to prevent infection for any reason, rather than just to prevent infection that may be caused by the Kla-math Project itself.
1. Species-Level harm
Plaintiffs note that it is not necessary to show harm to the “species as a whole” to obtain an injunction. Big Country Foods, Inc. v. Bd. of Educ.,
2. Water levels for 2017 appear favorable
The defendants contend that C. shasta reached high levels in 2014 and 2015 because there were unprecedented droughts in those years, making water levels particularly low. Fed. Oppo. at 19. They note
Plaintiffs acknowledge that water levels improved in 2016 and that the projections for 2017 also appear favorable. Yurok Reply at 6. However, they argue that the Coho salmon are still at significant risk. First, they note that the 2013 BiOp’s no-jeopardy determination relied on the assumption that C. shasta rates for Coho salmon would fall under the 2013-2023 opr erations and would never exceed 49 percent. Id. Next they highlight that the BiOp recognized that C. shasta was the most significant risk for Coho salmon and that the Klamath Project increases the risk of disease above natural conditions. Id. Plaintiffs argue that the record high levels of C. shasta in 2014 and 2015 demonstrate that NMFS’s assumptions about the Klamath Project’s impact on Coho salmon were fundamentally flawed as disease rates did not decrease, but instead markedly increased under the 2013 plan. Id. They note that the 2013 BiOp did not assess the impact that multiple years of infection rates at or near the incidental take maximum might have on Coho salmon. Id. at 7. The 2013 BiOp did not address this issue because it concluded that C. shasta rates would decline from observed POR rates, which averaged around 30 percent and had never exceeded 49 percent, and so presumed that Coho salmon would not be subjected to these conditions. Plaintiffs argue that, given this presumption, there is nothing in the 2013 BiOp to support the idea that Coho salmon can sustain multiple years of infection at or near the 49 percent infection rate. Id.
Plaintiffs also argue that the extreme infection rates seen in 2014 and 2015 have weakened the Coho salmon population’s abundance, fitness, and resilience such that protective measures are particularly important now. Again, because the 2013 BiOp presumed that C. shasta rates would fall, it did not address the potential lasting impact that consecutive years of infection, well above the incidental take maximum, might have on the Coho salmon. But plaintiffs assert the extreme infection rates seen in 2014 and 2015 will impact the offspring generations of the affected juvenile Coho salmon. For example, they explain that because Coho salmon have a three-year life cycle, the offspring of the juvenile salmon affected in 2014 will be outmigrating in 2017. Yurok Reply at 7. They argue that, because the 2017 population has been stressed and weakened by the high infection rates seen in its parents’ generation, they may be less able to sustain additional years of high C. shasta infection and protective flows are particularly important. Id.
Plaintiffs respond to the Bureau’s argument that higher water years will allow the Bureau to take more protective steps in 2017 in accordance with the 2013 BiOp by noting that the Bureau’s history of operating under the 2013 BiOp has not been favorable to the salmon, even in non-drought years. Id. at 9. They point out that in 2013 and 2016 infection rates approached the Incidental Take maximum, 46 percent and 48 percent respectively, even though these were close to average water years. Id. at 10. They also note that the Bureau only provides flushing and dilution flows, in line with the disease management program, if there is water avail
3. Disease rates are not all attributable to the Klamath Project
The intervenor defendants contend that plaintiffs have failed to show irreparable injury because Coho salmon survival depends on many factors, not just the operations of the Klamath Project. Int. Oppo. at 20. They point to the declaration of Mr. Cramer, who explains that factors such as weather conditions and environmental variation primarily account for changes in infection rates and that “[a]ny assumption that operations of the Klamath Project is the cause of a given incidence of C. shasta infections of salmonids in the Klamath River between the Shasta River and Trinity River, or of increases between years in the rate of infections, is not supported by the available data.” Cramer Decl. ¶ 9 (Yurok Dkt. No. 48-2). Cramer concludes “that continued operation of the Klamath Project consistent with the 2013 BiOp would not result in irreparable harm to the species.” Id.
These arguments are not persuasive. No doubt many factors beyond the Klamath Project’s operations, impact C. shasta disease rates, but there is no dispute, and the 2013 BiOp concedes, that the Klamath Project’s operations increase the incidence of C. shasta above natural levels. AR 1011. It is not necessary for plaintiffs to show that the Klamath Project causes all incidences of C. shasta, only that the Coho salmon are likely to be irreparably harmed absent the requested relief. While environmental variability may be the primary cause of C. shasta fluctuations, plaintiffs cannot obtain injunctive relief from Mother Nature. It is the Bureau’s responsibility and obligation to ensure that its actions do not jeopardize the Coho salmon, after taking factors outside its control, such as environmental variability, into account. 16 U.S.C. § 1536(a)(2).
It is not necessary for plaintiffs to show that there is likely to be irreparable harm to the species as a whole or a risk of extinction. Natl Wildlife Fed.,
There is no adequate remedy at law for the loss of or harm to endangered species. Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv.,
C. Balance of harms and public interest
The defendants assert that the balance of harms weighs against an injunction because (1) plaintiffs’ proposed injunctive relief could harm sucker fish that live in the Upper Klamath Lake, and (2) the court should take into account the real financial interests of farmers and businesses that rely on irrigation water for their business and livelihoods.
In ESA cases “the balance of hardships and the public interest tip heavily in favor of endangered species.” Sierra Club v. Marsh,
Plaintiffs respond that this argument is a red herring because their proposed injunction would not alter the mandatory minimum lake levels for the Upper Klamath Lake. Yurok Reply at 11. They agree that sucker fish are entitled to protection, just like the Coho salmon, and argue that their proposed injunction would prioritize both Coho salmon and suckers over water diverted to the irrigation districts, as mandated by the ESA. Klamath Water Users Protective Ass’n v. Patterson,
In their sur-reply, the federal defendants assert that this is not a simple matter of diverting water away from the irrigation districts because the proposed flows would largely take place in the winter and spring when deliveries to irrigation are low. Bottcher Decl. ¶ 9 (Yurok Dkt. No.
The defendants’ arguments highlight that the Klamath Project is a complex system. It is unsurprising that any changes to water flows will have additional impacts elsewhere. Plaintiffs maintain that there are various management options that the Bureau can use to implement the in-junctive flows while complying with its other obligations. To the extent that plaintiffs’ requested relief would require reducing water levels below the mínimums set for the suckers, they are not permitted. Because it appears that, with collaboration, the Bureau could implement at least some of the plaintiffs’ proposed injunctive measures, I do not conclude that the hypothetical impact to the suckers precludes injunc-tive relief.
Next, the intervenor defendants submit that their interests should be taken into account, noting that the proposed injunction might reduce the water available to irrigators and “would create significant hardships for the community of farmers and ranchers that rely on water from the Klamath Project for their livelihoods.” Int. Oppo. at 21. The intervenor defendants undeniably have genuine and important interests, and the court recognizes that the proposed measures might cause hardship to the farmers, ranchers, and their communities. However, as plaintiffs point out, courts are not permitted to favor economic interests over potential harm to endangered species. Tennessee Valley Auth. v. Hill,
The requested injunctive relief would also help protect the Tribes’ fishing rights, which must be accorded precedence over irrigation rights. The Hoopa Valley and Yurok Tribes have federally reserved fishing rights. Parravano v. Masten,
III. IS THE PARTICULAR INJUNC-TIVE RELIEF REQUESTED WARRANTED?
Plaintiffs request two primary forms of flows to reduce C. shasta infection rates: (1) flushing flows in the winter and spring to reduce polychaete worm concentrations; and (2) dilution flows when C. shasta rates spike. Yurok Mot. at 20. Plaintiffs assert that these proposed measures are supported by the best available science and are necessary to reduce C. shasta rates among the Coho salmon and prevent irreparable harm. Id. Plaintiffs proposed measures come from the Guidance Document, a document prepared by plaintiffs’ technical analysts by relying on the findings of the 2013 BiOp and the four tech memos provided by FWS. AR 231-232. While the Guidance Document proposes additional protective measures, plaintiffs assert that the prevention and emergency dilution flows are the most urgent and only seek to enjoin the Bureau to provide these flows. Yurok Mot. at 20.
A. Protective Flushing Flows
Plaintiffs’ first request is for prevention flows in winter and spring to flush out the polychaete worms that host C. shasta spores. Id. at 21; AR 237. Plaintiffs note that C. shasta is not transmitted from salmon to salmon, and that the Coho salmon contract C. shasta from the polychaete worms. Yurok Mot. at 21. Peak flows with elevated water velocities can dislodge the host worms from the riverbed and flush them downstream. AR 237. Plaintiffs propose both surface flushing flows and deep flushing flows. Yurok Mot. at 21.
Plaintiffs note that surface flushing flows occurred regularly in years considered by the biological opinion but have become less common in recent years. AR 237-238. As the sedimentation tech memo states, “From 1964 to 1999, the average cumulative duration of Surface Flushing flows exceeded 22 days per water year. From 2000 to 2016, the average cumulative duration of Surface Flushing flow exceeded five days in only one water year and no sediment mobilization flows occurred in 12 of the 17 water years.” AR 269.
While the 2013 BiOp recognized the importance of flushing flows for reducing spore concentration, it also conceded that the spring minimum flows would not be sufficient to dilute high C. shasta concentrations. AR 1007-1008. Plaintiffs argue that there is a scientific consensus that flushing flows reduce C. shasta infection rates among Coho salmon, and that these flows have become increasingly infrequent in recent years. Although the historical evidence does not show that flushing flows regularly occurred on an annual basis, plaintiffs propose implementing winter-spring flushing flows every year for the duration of the 2013 BiOp or until dam removal is completed because of the Coho’s weakened state. Yurok Mot. at 22.
Plaintiffs also propose deep flushing flows. AR 239. Deep flushing flows are similar to flushing flows but involve larger volumes of water, which results in more sediment disturbance and can dislodge po-lychaete worms to a greater degree than flushing flows alone. Id. The biological opinion recognized that deep flushing flows are likely to “reduce polychaete abundance and disturb their fine sediment habitat.” AR 1009-1011. However, it did not mandate such flows. Plaintiffs propose deep
Plaintiffs ask that surface flushing flows be provided, at a minimum, and that deep flushing flows be provided when water levels permit it. Id. Although they request these general types of flows, they contend that the “timing of such releases should be left to the Bureau’s discretion to enable the Bureau to take advantage of flows and to address safety concerns.” Id. They also request that the court “direct the parties to have their technical experts confer and propose a detailed order addressing timing, duration, and operations considerations for the particular flushing flows.” Id.
B. Emergency Dilution Flows
Plaintiffs’ second proposed form of relief is for emergency flows when C. shasta rates spike. Id. They request pulse flows to dilute spore concentrations when C. shasta rates are particularly high. Id. Plaintiffs assert that their proposed emergency dilution flows mirror the 2013 BiOp’s disease management plan with two exceptions: (1) the disease management plan only triggers emergency flows when C. shasta rates reach 49 percent; and (2) emergency flows are only implemented if surplus water is available. Id.
In lieu of the 49 percent infection rate trigger, plaintiffs assert that emergency flows should be triggered when infection rates approach the historic average of 30 percent. Id. at 24. They reasonably contend that a 49 percent trigger is insufficient to prevent infection rates above the incidental take maximum (49 percent) because infection rates are likely to exceed this amount before the emergency flows take effect. Id. A 30 percent trigger would certainly provide more time for emergency measures to take effect. While it is unclear whether a slightly higher trigger might work equally well, the technical experts can debate the merits of a specific triggering infection rate.
Next, plaintiffs argue that the 2013 BiOp’s requirement that emergency flows be used only in years when surplus water happens to be available is insufficient. To ensure that water will be available if emergency flows become necessary, they “ask the Court to require the Bureau either to reserve a sufficient amount of water for emergency dilution flows or to condition the irrigation allocation so that emergency dilution flows will occur if conditions warrant.” Id. at 24.
As with the flushing flows, plaintiffs ask that the court direct the technical experts for the parties to propose a detailed plan setting out the precise triggers, volumes, timing, and duration of emergency dilution flows. Id.
C. Defendants’ Objections to the Proposed Injunction
The defendants object to plaintiffs’ proposed injunctive relief because it has not been properly tested through a comprehensive scientific process. Int. Oppo. at 13-14. They emphasize that the likely impact of plaintiffs’ proposed relief is to deprive the irrigators of thousands of acre-feet of water, which will cause substantial financial hardship. Id. at 15. They assert that, because the need for plaintiffs’ proposed measures is uncertain but the harm to the irrigators is clear, injunctive relief is not appropriate.
Defendants note that plaintiffs’ proposed injunctive measures come from the Guidance Document, a report prepared by plaintiffs’ technical experts that draws from the 2013 BiOp and the FWS tech memos. Id. at 14. Defendants emphasize that the Guidance Document was not prepared in line with the plan set out by DTAT. They also note that the federal agencies have raised a number of concerns
Plaintiffs respond to these criticisms by noting that their proposed injunctive relief is based on the “best available science.” Yurok Reply at 15. They contend that these proposals are based on the conclusions and findings in the 2013 BiOp and the FWS tech memos, which themselves were developed through a detailed scientific process. Id. The 2013 BiOp concluded that C. shasta rates pose a significant threat to Coho salmon and acknowledged that flushing flows can be effective at diluting polyeh'aete densities and reducing C. shasta infection rates. Id.; AR 1006-1011. The FWS memos compile the best available science on C. shasta life history, infection rates, and the effect of flushing and dilution flows. Yurok Reply at 16. The DTAT members and other C. shasta experts provided comments on the FWS memos and the memos were peer reviewed. Id.
Plaintiffs note that, although all the members of DTAT were originally going to work together to prepare the Guidance Document, the federal defendants decided not to participate because the Bureau would be implementing the recommendations and NMFS would be reviewing the recommendations. Id. Following this change in plan, the plaintiffs moved forward with preparing the Guidance Document and sought feedback and comments from the agencies. Id Plaintiffs’ technical experts used this feedback and these comments to update and hone the Guidance Document and prepared a detailed matrix documenting the comments from all of the DTAT members and reviewing agencies, and plaintiffs’ experts’ responses to each comment. Supp. Belchik Decl. ¶¶ 8-12 (Yu-rok Dkt. No. 54-2); Supp. Belchik Decl. Ex. 1 (Yurok Dkt. No. 54-3). Plaintiffs have convincingly shown that their proposed injunctive flows are based on the best available science and incorporate comments and feedback from experts in the field.
Plaintiffs have demonstrated that flushing flows and emergency dilution flows would reduce C. shasta rates among Coho salmon. There is no meaningful dispute among the parties on this point. The more substantive disputes involve whether the Bureau can practically implement plaintiffs’ proposed relief and remain in compliance with its many other obligations—for example, whether it can provide the requested flows without violating the minimum Klamath Lake levels required for sucker fish. These concerns must be addressed by having the technical experts confer on the details of how particular flows should be implemented.
D. Whether an Evidentiary Hearing is Required
Defendants finally argue that the proposed injunctive relief is not appropriate because there are factual disputes that must be resolved before injunctive relief is granted. Int. Oppo. at 21. Defendants assert that there are disputed facts on various issues, including whether the proposed injunction is necessary to prevent irrepa-
Plaintiffs respond that there are no material factual disputes that would preclude the requested relief. Yurok Reply at 19; see Charlton v. Estate of Charlton,
Plaintiffs respond to the critiques of the science behind the Guidance Document by noting that the ESA instructs parties to implement the best available science, but does not require perfect information or the best science possible. Id.; see Alaska Oil & Gas Ass’n v. Pritzker,
Although the proposed injunctive measures have not been exhaustively tested, plaintiffs have made a compelling case that these measures are based on the best available science and that there are no material disputes as to their ability to reduce C. shasta rates. Although the defendants raise some potential issues with implementing the precise measures requested, plaintiffs have suggested that the parties work together to prepare a proposed flow plan that would address the various complicated concerns. The only alternative to imposing the proposed measures is to wait until more concrete measures can be developed. Where plaintiffs have shown a threat of imminent harm to the Coho salmon, waiting for perfect science is not appropriate. An evidentiary hearing is not necessary and would further delay necessary relief.
E. Relief
Plaintiffs’ requested flows are supported by the best available science and are likely to reduce C. shasta rates. Given the complexity of the Klamath Project and the potential harm to endangered sucker fish, the parties must work together to determine an appropriate flow plan. The plaintiffs’ technical experts and the agency experts shall meet and confer on the precise timing, duration, and volume of any flows and submit a proposed injunctive flow plan by March 9, 2017.
CONCLUSION
The federal defendants’ motion to dismiss the Hoopa Valley claims is GRANT
The intervenor-defendants’ motion to join the federal defendants’ motion to strike or limit review is GRANTED, however, the motion to strike or limit review is DENIED.
The federal defendants’ motion for leave to file a Sur-reply is GRANTED.
The plaintiffs’ motion for summary judgment on their reinitiation claims is GRANTED. The federal defendants violated Section 402.16 by failing to reinitiate consultation after the incidental take trigger for C. shasta was exceeded in 2014. Plaintiffs are entitled to injunctive relief on this substantial procedural violation. Plaintiffs’ requested flows are supported by the best available science and are likely to reduce C. shasta rates. Given the complexity of the Klamath Project, and the potential harm to endangered sucker fish, the parties’ technical experts will need to determine the precise details of a preliminary injunctive flow plan.
Accordingly, the Court enters the following preliminary injunction:
1. Until such time as the formal consultation, recently initiated by the federal defendants, is completed, the Bureau is ordered to require two types of flows: (1) winter-spring flushing flows designed to dislodge and flush out polychaete worms that host C. shasta and (2) emergency dilution flows. Emergency dilution flows are required between April and June 15 only if C. shasta infection rates exceed 30 percent, or such other rate as agreed by the experts.
2. The technical experts for the parties will confer and submit to the Court on or before March 9, 2017, a proposed order fleshing out the parameters of the required mitigation measures in accordance with the best available science. In no event shall the proposed mitigation measures interfere with conditions necessary to protect the endangered sucker fish. The Court expects that the technical experts will propose surface flushing flows, at a minimum, and deep flushing flows if there is sufficient water, modeled on management guidance 1 and 2 in the Guidance Document prepared by the Tribes. The Court also expects the parties will propose a plan for instituting emergency flows, modeled on management guidance 4. If that is not the proposal, the experts shall explain why what they propose is more effective. The timing of the releases of water is left to the Bureau’s discretion.
3. In all other respects, the 2013 BiOp and take statement remain in effect pending completion of the reinitiated formal consultation.
4. No bond or security is required.
IT IS SO ORDERED.
Notes
. The federal defendants and intervenor defendants filed virtually identical oppositions in both cases.
. Federal defendants move to strike in full plaintiffs' motion for partial summary judgment, or in the alternative, the portions of plaintiffs’ motion “which cite to or rely upon the extra-record evidence for impermissible purposes.” Dkt. No. 42 at 3.
. It is not clear that a violation of the incidental take statement’s "trigger” is the proper measure for a future Section 9 violation. An incidental take statement offers a complete safe harbor for any taking "that is in compliance with the terms and conditions” of the take statement. 16 U.S.C.A. § 1536(a)(2). But absent an incidental take statement, an agency is not permitted to take a listed species in any amount. 16 U.S.C.A. § 1538(a)(1)(B) ("[W]ith respect to any endangered species of fish or wildlife ... it is unlawful for any person subject to the jurisdiction of the United States to (B) take any such species....”) The Ninth Circuit has repeatedly stated that exceeding the "trigger” of an incidental take statement invalidates the safe harbor provision. See, e.g., Ariz. Cattle Growers’ Ass'n,
. The parties agree that the APA’s “arbitrary and capricious” standard of review applies to plaintiffs’ ESA claim. Yurok Dkt. Nos. 42 at 10 & 44 at 11. Under the APA, a reviewing
. Chinook salmon were used as a surrogate because they are more plentiful than Coho salmon, have a similar susceptibility to C. shasta disease, and because Chinook disease monitoring had been in place since 2004. AR 1055
. The federal defendants contend that they have never disputed that formal consultation
. The defendants’ claim that they reinitiated formal consultation before plaintiffs’ suits were filed is contradicted by their own pleadings in this case. For example, in their reply in support of their motion to dismiss the claims brought by Hoopa Valley, the federal defendants argued that they had "been properly discussing on an ‘informal basis' reiniti-ating formal consultation and revising or amending the ITS.” Hoopa Dkt. No. 60 at 12. Given their own representations, their new claim that they have been engaged in formal consultation all along is not plausible.
. Defendants’ motion for leave to file a Sur-reply is GRANTED.