case 3:16-cv-04294-who document 44 filed 10/19/16 page 1 of 32 · 2017. 2. 9. · case no....

PLAINTIFF’S RESPONSE TO MOTION TO DISMISS OR, IN ALTERNATIVE, TO STAY 16-cv-4294-WHO -

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LAW OFFICES MORISSET, SCHLOSSER, JOZWIAK & SOMERVILLE

1115 Norton Building, 801 Second Avenue Seattle, Washington 98104-1509

Tel: 206-386-5200 Fax: 206-386-7322

Thomas P. Schlosser WSBA #06276 Thane D. Somerville WSBA #31468 (pro hac vice) MORISSET, SCHLOSSER, JOZWIAK & SOMERVILLE Suite 1115, Norton Building 801 Second Avenue Seattle, WA 98104-1509 Tel: 206-386-5200 Fax: 206-386-7322 [email protected] [email protected] Attorneys for Plaintiff Hoopa Valley Tribe Patricia A. Prochaska, CA #142161 Attorney at Law 577 9th Avenue Menlo Park, CA 94025 Telephone: 650-562-7060 [email protected] Local Counsel for Plaintiff

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

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

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

Case No. 16-cv-4294-WHO PLAINTIFF’S RESPONSE IN OPPOSITION TO FEDERAL DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, TO STAY Judge: Hon. William H. Orrick Hearing Date: November 16, 2016 Hearing Time: 2:00 PM Courtroom: 2, 17th Floor

Case 3:16-cv-04294-WHO Document 44 Filed 10/19/16 of 32

PLAINTIFF’S RESPONSE TO MOTION TO DISMISS OR, IN ALTERNATIVE, TO STAY - i 16-cv-4294-WHO

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TABLE OF CONTENTS

I. INTRODUCTION ............................................................................................................... 1

II. STATEMENT OF ISSUES ................................................................................................. 2

III. STATEMENT OF FACTS .................................................................................................. 2

IV. ARGUMENT AND AUTHORITY .................................................................................... 8

A. NMFS Has An Independent Legal Duty to Reinitiate Formal Consultation and Count I Against NMFS Is Cognizable Under the APA. .......................................... 8

B. There is No Valid Basis to Dismiss or Stay Plaintiff’s Claims In Counts I and II Because Formal Consultation Required by 50 C.F.R. § 402.16 Has Not Been Reinitiated; Thus, This Court Must Redress Federal Defendants’ Ongoing Failure to Comply With The ESA. ........................................................................ 13

1. Neither Dismissal Nor Stay Is Warranted Because Federal Defendants’ Legal Violation Here Is Undisputed and Ongoing And Is Affirmatively Harming ESA-Listed Fish Species In the Klamath River. ........................ 14

2. Prudential Mootness Is Not An Accepted Doctrine in the Ninth Circuit And It Has No Application Here. .............................................................. 17

3. The Alternative Request For A Stay Should Be Denied Given Federal Defendants Clear Legal Violation and the Harm That Would Result to the Imperiled SONCC Coho Species If Such Stay Were Granted. ........... 19

C. Plaintiff Has Alleged A Valid Claim Against BOR For Unlawful Take; Allowing Project Operations to Continue Pursuant to the 2013 BiOp’s Minimum Flow Regime Will Result In Unlawful Take of SONCC Coho Juveniles During the Spring 2017 Outmigration. .............................................................................. 21

D. Plaintiff’s Claim Against NMFS Regarding Consultation on Essential Fish Habitat Arises Under 16 U.S.C. § 1855(b)(4)(A); This Court Has Jurisdiction to Adjudicate NMFS’ Failure to Comply with That Section. .................................... 24

V. CONCLUSION ................................................................................................................. 25


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TABLE OF AUTHORITIES CASES

Arizona Cattle Growers’ Association v. USFWS, 273 F.3d 1229 (9th Cir. 2001) ......................................................................................... 15, 16

Bennett v. Spear, 520 U.S. 154 (1997) ............................................................................................................... 9

Center for Biological Diversity v. BLM, 698 F.3d 1101 (9th Cir. 2012) ............................................................................................... 11

Cottonwood Environmental Law Center v. U.S. Forest Service, 789 F.3d 1075 (9th Cir. 2015) ......................................................................................... 15, 20

Defenders of Wildlife v. Martin, 454 F. Supp. 2d 1085 (E.D. Wash. 2006) ................................................................. 11, 13, 24

Forest Conservation Council v. Rosboro Lumber Company, 50 F.3d 781 (9th Cir. 1995) ............................................................................................. 23, 24

Gifford Pinchot Task Force v. USFWS, 378 F.3d 1059 (9th Cir. 2004) ............................................................................... 8, 16, 17, 18

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987) ............................................................................................................... 23

Hunt v. Imperial Merch. Servs., 560 F.3d 1137 (9th Cir. 2009) ............................................................................................... 18

Mayo v. Jarvis, 2016 WL 1254213, 2016 U.S. Dist. LEXIS 41005 (D.D.C., Mar. 29, 2016) ................ 17, 20

Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441 (9th Cir. 1992) ......................................................................................... 11, 14

NRDC v. Evans, 364 F. Supp. 2d 1083 (N.D. Cal. 2003) .............................................................. 10, 11, 12, 14

NRDC v. Norton, Case No. 05-CV-1207-OWW-LJO, 2006 U.S. DIST. LEXIS 94689 (E.D. Cal. 2007) .............................................................................................................. 18, 19

Oregon Nat. Res. Council v. Keys, Case No. 02-3080-CO, 2004 WL 1048168 (D. Or., May 7, 2004) ................................ 18, 19

Oregon Natural Desert Assn. v. Tidwell, 716 F. Supp. 2d 982 (D. Or. 2010) ........................................................................... 14, 15, 18

Oregon Natural Resources Council v. Allen, 476 F.3d 1031, 1036-37 (9th Cir. 2007) .......................................................................... 11, 12

Pacific Coast Federation of Fishermen’s Associations (PCFFA) v. U.S. Bureau of Reclamation, 138 F. Supp. 2d 1228 (N.D. Cal. 2001) ........................................................... 4


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Pacific Rivers Council v. Thomas, 30 F.3d 1050 (9th Cir. 1994) ........................................................................................... 11, 13

Pacificans for a Scenic Coast v. Cal. DOT, Case No. 15-cv-02090-VC, 2016 U.S. Dist. LEXIS 119479 (N.D. Cal., Sep. 2, 2016) .................................................................................................. 9, 15

PCFFA v. U.S. Bureau of Reclamation, 138 F. Supp. 2d 1228 (N.D. Cal. 2001) .................................................................................. 5

PCFFA v. U.S. Bureau of Reclamation, 226 Fed. Appx. 715 (9th Cir. 2007) ............................................................................ 4, 17, 18

PCFFA v. U.S. Bureau of Reclamation, 426 F.3d 1082 (9th Cir. 2005) ................................................................................................. 4

Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220 (9th Cir. 2008) ............................................................................................. 8, 9

Sierra Club v. Marsh, 816 F.2d 1376 (9th Cir. 1987) ......................................................................................... 10, 13

Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978) ............................................................................................................. 23

Wash. Toxics Coalition v EPA, 413 F.3d 1024 (9th Cir. 2005) .............................................................................................. 10

STATUTES

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

16 U.S.C. § 1536(a) ...................................................................................................................... 4

16 U.S.C. § 1536(d) .................................................................................................................... 10

16 U.S.C. § 1538 .......................................................................................................................... 4

16 U.S.C. § 1540(g) .......................................................................................................... 2, 23, 25

16 U.S.C. § 1855(b)(4)(A) ............................................................................................... 2, 24, 25

16 U.S.C. § 1855(b)(4)(B) .......................................................................................................... 24

Endangered Species Act, 16 U.S.C. §§ 1531 et seq. ........................................................... passim

Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA) .......................... 24

OTHER AUTHORITIES

62 Fed. Reg. 24588 (May 6, 1997) ............................................................................................... 2

64 Fed. Reg. 24,049, 24,059 (May 5, 1999) ................................................................................. 3


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REGULATIONS

50 C.F.R. § 402.14(g)(4) ........................................................................................................... 14

50 C.F.R. § 402.02 ........................................................................................................................ 8

50 C.F.R. § 402.09 ...................................................................................................................... 10

50 C.F.R. § 402.13 ................................................................................................................ 14, 15

50 C.F.R. § 402.16 ............................................................................................................... passim

50 C.F.R. § 402.16 (a) .......................................................................................................... 14, 17

50 C.F.R. § 402.16 (b) .......................................................................................................... 14, 17


PLAINTIFF’S RESPONSE TO MOTION TO DISMISS OR, IN ALTERNATIVE, TO STAY - 1 16-cv-4294-WHO

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I. INTRODUCTION

The Court should deny Federal Defendants’ motion to dismiss as well as the alternative

motion to stay (Dkt. #33). This case involves the Federal Defendants’ failure to comply with

their legal obligations to protect certain imperiled anadromous salmon, which are central to the

subsistence, culture, and economy of the Plaintiff Hoopa Valley Tribe. In May 2013, pursuant

to requirements of the Endangered Species Act (“ESA”), Defendant National Marine Fisheries

Service (“NMFS”) produced a Biological Opinion (“2013 BiOp”) and Incidental Take

Statement (“ITS”) that set specific standards governing Defendant Bureau of Reclamation’s

(“BOR”) operation of the Klamath Project (“Project”). Relevant here, NMFS set standards

relating to the maximum permissible incidence of fish disease downstream of the Project –

disease that is exacerbated by low flows resulting from BOR’s Project operations.

While operating under other terms of the 2013 BiOp approved by NMFS, BOR’s

Project operations resulted in significant exceedances of the fish disease standards in both 2014

and 2015, resulting in excessive and unlawful take of ESA-listed fish species. Under federal

regulations, these exceedances of the required standards have specific consequences and

mandate specific actions by the Federal Defendants: Pursuant to 50 C.F.R. § 402.16, NMFS

and BOR must reinitiate formal consultation with each other to evaluate Project operations and

develop measures necessary to avoid excessive take and to prevent jeopardy to the species.

During the reinitiated formal consultation, the existing BiOp and ITS are withdrawn and no

action can be taken by Federal Defendants that could harm the ESA-listed species pending

completion of formal consultation, which occurs upon publication of a new BiOp by NMFS.

Here, despite the significant and undisputed exceedances of the standards set by NMFS

in the 2013 BiOp and ITS, NMFS and BOR have failed to reinitiate formal consultation.

BOR’s continued operation of the Project in accordance with the flow regime approved in the

2013 BiOp is certain to result in unlawful excessive take of listed fish and could jeopardize



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their survival and recovery. The Tribe has sued to obtain an order declaring that Federal

Defendants are in violation of federal law and ordering them to reinitiate formal consultation,

to withdraw the existing 2013 BiOp and ITS, and to enjoin any Project operations that could

harm the species pending completion of formal consultation. As discussed in detail below, the

Court has jurisdiction over Plaintiff’s claims against both BOR and NMFS and there is no valid

basis to stay this case or to permit Federal Defendants’ unlawful conduct to continue unabated.

II. STATEMENT OF ISSUES

A. Whether Plaintiff has a cognizable claim against NMFS based on NMFS’ failure

to reinitiate formal consultation as required by 50 C.F.R. § 402.16?1

B. Whether any claims asserted by Plaintiff should be dismissed on grounds of

“prudential mootness” or stayed?

C. Whether Plaintiff has a cognizable claim against BOR for unlawful take of

SONCC coho pursuant to the ESA citizen suit provision, 16 U.S.C. § 1540(g)?

D. Whether Plaintiff has a cognizable claim against NMFS for failure to consult

regarding essential fish habitat as required by 16 U.S.C. § 1855(b)(4)(A)?

III. STATEMENT OF FACTS

The Klamath River basin straddles northern California and southern Oregon. In 1997,

NMFS listed Southern Oregon/Northern California (SONCC) Coho salmon as a threatened

species under the ESA. 62 Fed. Reg. 24588 (May 6, 1997). SONCC Coho salmon spawn,

mature, and migrate in the mainstem Klamath River and its tributaries until their passage is

blocked by Iron Gate Dam. In listing the SONCC Coho as threatened, NMFS explained that

water diversions and water withdrawals were major activities responsible for the decline of

Coho salmon in Oregon and California. 62 Fed. Reg. 24588, at 24592-93. In designating

critical habitat for the SONCC Coho salmon under the ESA, NMFS described that “essential

1 Federal Defendants concede this Court has jurisdiction under the ESA to hear Plaintiff’s

claims in Count I and II of its First Amended Complaint against BOR. Dkt. #33, p. 10, fn 4.



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features” of Coho habitat include water quantity, water velocity, and water temperature. 64

Fed. Reg. 24,049, 24,059 (May 5, 1999). The 2013 BiOp2 identifies the populations of

SONCC Coho affected by the Project as having a moderate to high (in the case of Upper

Klamath River populations) risk of extinction. 2013 BiOp at pp. 312, 327.

SONCC Coho have a three-year life cycle. Coho eggs typically hatch in March, emerge

two weeks after hatching as “fry,” and spend up to 15 months in fresh water. Fry become smolt

after 15 months and migrate to the ocean primarily between March and June. Water quantity

and quality are especially significant to the juvenile outmigration. Declaration of Sean Ledwin,

¶ 6. Spring months of March through June represent the peak of juvenile Coho presence in the

mainstem Klamath River and are critical months in which to provide adequate water in the

mainstem Klamath for SONCC Coho. Id.; 2013 BiOp, at p. 270.

The Klamath Project (“Project”), authorized by Congress in 1905, consists of an inter-

related system of dams, canals, and pumping stations located in southern Oregon and northern

California. The Project is managed and operated by BOR and it provides water taken from the

Klamath River to irrigate approximately 200,000 acres of agricultural land each year. The

Project also supplies water for certain wildlife refuges operated by the U.S. Fish and Wildlife

Service (“FWS”). A map of the Project and surrounding area is at pages 8-9 of the 2013 BiOp.

Ongoing Project operations result in significant out-of-stream diversions of water. 2013

BiOp, at 33-34 (defining full Project irrigation supply as 390,000 acre-feet). These diversions

significantly impact flow levels and anadromous fish habitat in the Klamath River downstream

of Iron Gate Dam. The natural flow regime in the Klamath River is significantly altered as a

result of Project operations. 2013 BiOp, p. 229. BOR, like all federal agencies, must comply

with the ESA and ensure that its operations do not result in jeopardy or unlawful “take” of

2 The reference to the 2013 BiOp refers to the “Biological Opinions on the Effects of Proposed Klamath Project Operations from May 31, 2013 through March 31, 2023, on Five Federally Listed Threatened and Endangered Species.” The 2013 BiOp is found in its entirety at Exhibit A to the Declaration of Jason Cameron (Dkt. #33-1), filed 10/5/16.



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ESA-listed species, such as the SONCC Coho downstream of the Project and downstream of

Iron Gate Dam.3 16 U.S.C. § 1536(a); (no “jeopardy”); 16 U.S.C. § 1538 (prohibiting “take”);

16 U.S.C. § 1532(19) (defining “take”). Flows provided out of Iron Gate Dam contribute

significant and often the majority of instream flows utilized by fish in the mainstem Klamath

River between Iron Gate Dam and the Trinity River confluence. Ledwin Decl., at ¶ 6.

BOR maintains ongoing discretionary management authority and control over the

Project. Since 1996, BOR has operated the Project with operating plans that designate or

identify minimum flow levels in the Klamath River downstream of Iron Gate Dam for

protection of fish. These plans identify flows to be met – after agricultural diversions are

satisfied – during particular times of the year in cubic feet per second (“cfs”) of water as

measured flowing past Iron Gate Dam. Pacific Coast Federation of Fishermen’s Associations

(PCFFA) v. U.S. Bureau of Reclamation, 138 F. Supp. 2d 1228, 1232 (N.D. Cal. 2001).

On May 31, 2013, NMFS (along with USFWS) issued the 2013 BiOp. The 2013 BiOp

was preceded by repeated failures of BOR and NMFS to meet their obligations to SONCC

Coho under the ESA. See PCFFA v. U.S. Bureau of Reclamation, 226 Fed. Appx. 715 (9th Cir.

2007) (affirming injunction limiting Project diversions and holding that “supplement” to

invalidated BiOp outside of formal consultation was not lawful); PCFFA v. U.S. Bureau of

Reclamation, 426 F.3d 1082 (9th Cir. 2005) (holding that portions of 2002 BiOp, which related

to Project operations for 2002-2012 were arbitrary and capricious because it only required BOR

to provide 57% of the SONCC Coho salmon’s water needs deemed necessary for the species by

NMFS, and remanding case to District Court for issuance of injunctive relief); PCFFA v. U.S.

3 Iron Gate Dam is located on the Klamath River downstream of the Project and is part of

the separate Klamath Hydroelectric Project, which consists of a series of dams owned and operated on the Klamath River by PacifiCorp, a private company, pursuant to a federal license. 2013 BiOp, at p. 1. PacifiCorp coordinates with BOR to provide flow releases from Iron Gate Dam (which is the most downstream dam on the Klamath River) that are necessary to meet BOR’s obligations to SONCC Coho salmon under the ESA. 2013 BiOp, at p. 24.



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Bureau of Reclamation, 138 F. Supp. 2d 1228 (N.D. Cal. 2001) (ruling that BOR unlawfully

failed to consult with NMFS prior to year 2000 operations plan and enjoining BOR from

delivering water to the Project whenever flows at Iron Gate Dam dropped below specified

levels pending completion of formal consultation and issuance of new BiOp by NMFS). The

2013 BiOp was also preceded by a Biological Assessment and draft jeopardy opinions, which

confirmed Project operations are likely to adversely affect SONCC Coho. 2013 BiOp, pp. 2-6.

As explained in the 2013 BiOp, fish disease is a significant factor limiting survival and

recovery of SONCC Coho in the Klamath River. 2013 BiOp, at pp. 220, 222, 341 (noting that

“disease effects . . . likely have a substantial impact on the survival of juvenile coho salmon in

[the Upper Klamath River reach].” See also Ledwin Decl., at ¶ 7. In fact, “[o]f all the adverse

effects of the proposed action, NMFS believes that the disease risk from C.shasta is the most

significant to coho salmon.” 2013 BiOp, at p. 377. Incidence of fish disease is significantly

correlated to low flows in the river and conversely increased flows are significantly correlated

with decreasing infection rates. Ledwin Decl., at ¶¶ 8-11. “NMFS believes that the high

incidence of disease in certain years within the mainstem Klamath River results largely from the

reduction in magnitude, frequency, and duration of mainstem flows from the natural flow

regime under which coho salmon evolved.” 2013 BiOp, p. 341. Increased spring flows dilute

the prevalence of the disease and reduce the transmission efficiency. 2013 BiOp, p. 342; see

also Ledwin Decl., at ¶¶ 8-10.

Because Project operations reduce the amount of spring flow released from Iron Gate

Dam into the Klamath River downstream, NMFS acknowledged that Project operations would

likely result in hydrologic conditions in the mainstem Klamath River that will likely increase

the percentage of disease-related mortality to coho salmon fry and juveniles in the mainstem

Klamath and also likely increase the percentage of coho salmon fry and juveniles that

experience sublethal adverse effects such as impaired growth, etc. 2013 BiOp, at pp. 343, 350.



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“Of all the different life stages, coho salmon fry and juveniles (parr and smolts) face the highest

risks from the hydrologic effects of the [Project], especially during the spring.” Id., at p. 355.

In the 2013 BiOp, NMFS analyzed the minimum flows that BOR proposed to release

from Iron Gate Dam during its Project operations. The daily minimum flows for April, May,

and June provide 1,325 cfs, 1175 cfs and 1025 cfs respectively at Iron Gate Dam. 2013 BiOp,

at p. 343. NMFS acknowledged that these flows might not be adequate for purposes of diluting

disease-causing agents in the river, but NMFS speculated that the minimum flows would

provide a reasonable limit on disease going forward. 2013 BiOp, at p. 343. NMFS stated:

“While these proposed minimum daily flows are not likely sufficient to dilute actinospore

concentrations to 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, which may reduce disease-related mortality to coho salmon.” BiOp,

at pp. 343-344. Implementation of the 2013 BiOp’s minimum flow regime in 2014 and 2015

has confirmed that NMFS was wrong: the minimum flow regime approved by NMFS did not

adequately limit disease-related mortality. Ledwin Decl., at ¶ 11-12. Infection rates skyrocketed

under the 2013 BiOp minimum flow regime, resulting in the excessive take of coho. Id.

Relying in part on its assumptions that the minimum flow regime would provide a

sufficient limit to disease infection rates, NMFS rendered its “biological opinion that the action,

as proposed, is not likely to jeopardize the continued existence of the SONCC coho salmon

ESU.” 2013 BiOp, at p. 377. NMFS also provided BOR with an Incidental Take Statement

(“ITS”) pursuant to Section 7(b)(4) of the ESA. 2013 BiOp, at p. 378. The ITS was required

because, despite NMFS’ no-jeopardy determination, NMFS found that Project operations

would continue to “take” SONCC coho salmon due to “habitat reductions during March

through June” and “increased disease risks during April to August.” 2013 BiOp, at p. 388. An

ITS provides BOR with a safe harbor from liability under Section 9 of the ESA for take that is

at or below the authorized levels in the ITS. In addition, the ITS provides a check on NMFS’



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assumption that Project operations under the new minimum flow regime would not result in

jeopardy to SONCC Coho. The disease rates that occurred in 2014 and 2015 disproved the

assumptions regarding disease that support NMFS’ no jeopardy conclusion in the 2013 BiOp.

The ITS sets forth specific parameters for the extent of take that is authorized. 2013

BiOp, at p. 392. As related to increased disease risks, the ITS prescribes the maximum amount

of incidental take as follows: “[M]easured by a surrogate of up to 54 percent (via histology or

49 percent via QPCR) of the total annual Chinook salmon juveniles in the mainstem Klamath

River between the Shasta River and the Trinity River may be infected with C. Shasta during the

months of May to July.” 2013 BiOp, at p. 392. NMFS chose this level of maximum permissible

take from disease incidence because it equated to the “highest percentage of C. Shasta infection

rates for Chinook salmon observed in the [2004-2012 period of record].” 2013 BiOp, at p. 391;

Ledwin Decl., at ¶ ¶ 12-13. NMFS used disease incidence in Chinook as a surrogate

measurement for coho disease incidence, because Chinook salmon have a similar susceptibility

to C. Shasta as coho and because Chinook salmon are more abundant than coho and disease

monitoring of Chinook has been occurring since 2004. 2013 BiOp, at p. 390. NMFS further

explained, consistent with 50 C.F.R. § 402.16, that: “If the percent of C. Shasta infections for

Chinook salmon juveniles in the mainstem Klamath River between Shasta River and Trinity

River during May to July exceed these levels (i.e., 54% infection via histology or 49% infection

via QPCR), reinitiation of formal consultation will be necessary.” 2013 BiOp, at 391.

In 2014, the average juvenile Chinook salmon C. Shasta infection rate in the Klamath

River upstream of the Trinity River confluence from May through July was estimated at 81%

and in 2015, the average juvenile Chinook salmon C. Shasta infection rate in the same part of

the river was estimated at 91%. Ledwin Decl., at ¶ 11; Dkt. #1, Exh. 2, p.2. Thus, the infection

rates for both 2014 and 2015 greatly exceeded the maximum permissible infection rate (i.e.,

49%) provided for in the ITS. Despite these significant take exceedances, neither BOR nor

NMFS have reinitiated formal consultation. Ledwin Decl., at ¶ ¶ 23-24; Dkt. #33, pp. 1, 19



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(alleging that “informal,” rather than “formal,” consultation is occurring). Continued Project

operations pursuant to the 2013 BiOp and ITS will continue to result in excessive and unlawful

take of SONCC Coho in the Klamath River, a species that NMFS acknowledges is at

significant risk of extinction. Ledwin Decl., at ¶ 20-21, ¶ ¶ 13-19; 2013 BiOp, at pp. 312, 327.

IV. ARGUMENT AND AUTHORITY

A. NMFS Has An Independent Legal Duty to Reinitiate Formal Consultation and Count I Against NMFS Is Cognizable Under the APA.

Federal Defendants incorrectly argue that the duty to reinitiate formal consultation rests

solely with the action agency (here, BOR) and not also with the consulting agency (here,

NMFS). This argument is contradicted by the express language of the applicable NMFS

regulation at 50 C.F.R. § 402.16, which provides: “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; . . .

.” (emphasis added).4 Here, it is undisputed that the extent of taking specified in the ITS was

significantly exceeded in both 2014 and 2015 by BOR and that formal consultation has not

been reinitiated by either BOR or NMFS. Dkt. #33, pp. 1, 19; Ledwin Decl., ¶ ¶ 11, 23-24.

The Ninth Circuit Court of Appeals has rejected the argument made by Federal

Defendants here, confirming that the duty to reinitiate formal consultation under 50 C.F.R.

§ 402.16 lies with both the action agency and the consulting agency. Salmon Spawning &

Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1229 (9th Cir. 2008) (“[t]he duty to reinitiate

consultation lies with both the action agency and the consulting agency”); Gifford Pinchot Task

Force v. USFWS, 378 F.3d 1059, 1076-77 (9th Cir. 2004) (“discovery of new facts does not

justify an ‘amendment’ to the BiOp, but mandates reinitiating formal consultations” and that “.

4 The “Service” as referred to in 50 C.F.R. § 402.16 “means the U.S. Fish and Wildlife

Service [FWS] or the National Marine Fisheries Service [NMFS], as appropriate.” 50 C.F.R. § 402.02 (definitions). In this case, NMFS is the relevant consulting agency.



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. . FWS [the consulting agency] was obligated to reinitiate consultation pursuant to 50 C.F.R.

§ 402.16”). Recently, in Pacificans for a Scenic Coast v. Cal. DOT, Case No. 15-cv-02090-

VC, 2016 U.S. Dist. LEXIS 119479 (N.D. Cal., Sep. 2, 2016), Judge Chhabria of the Northern

District of California rejected the federal government’s argument, identical to that made here,

that the consulting agency had no legal duty to reinitiate consultation. The Court explained:

Notwithstanding Caltrans’ duty to reinitiate consultation, the [U.S.] Fish and Wildlife Service argues that it can have no duty to reinitiate consultation, because that duty lies solely with the action agency. That’s true of the duty to initiate formal consultation in the first place, but it’s not true of the duty to reinitiate consultation. . . . Consistent with the plain text of [50 C.F.R. § 402.16], the Ninth Circuit has stated that ‘[t]he duty to reinitiate consultation lies with both the action agency and the consulting agency.’ Salmon Spawning, 545 F.3d at 1229.

2016 U.S. Dist. LEXIS 119479, at pp. *36-37. NMFS (not FWS) is the consulting agency here.

Suit against NMFS for failure to reinitiate formal consultation is clearly cognizable

under the APA. In Bennett v. Spear, 520 U.S. 154, 174-176 (1997), the Supreme Court held

that the Secretary (here, NMFS) can be sued under the APA for alleged failures to comply with

its legal obligations under the ESA. The failure to reinitiate § 7 consultation is a final agency

action subject to judicial review under the APA. Salmon Spawning, 545 F.3d at 1229-30.5

While giving only passing reference to its own regulation in 50 C.F.R. § 402.16 and not

mentioning any of the authorities from the 9th Circuit cited above, which clearly place a legal

duty on NMFS to reinitiate formal consultation here, Federal Defendants base their argument

entirely on authorities that relate to initiation of consultation in the first instance (and not

reinitiation pursuant to 50 C.F.R. § 402.16, which is at issue here). Not one of the cases cited in

Section V.A.1 of Federal Defendants’ motion (Dkt. #33) relate to the consulting agency’s

independent duty to reinitiate consultation under 50 C.F.R. § 402.16. As discussed above, the

5 Federal Defendants contend that jurisdiction over the failure to reinitiate claim against

NMFS as consulting agency may arise only under the APA and not the ESA citizen suit statute. Plaintiff pled both the ESA and APA as alternative jurisdictional bases for its claim against NMFS in Count I. Dkt. #25, ¶ ¶ 65, 70-71. Federal Defendants concede that this Court has jurisdiction over the claims against BOR in Counts I and II pursuant to the ESA. Dkt. #33, fn. 4.



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Ninth Circuit and this Court have both confirmed that the consulting agency has an independent

duty to reinitiate formal consultation when triggers identified in 50 C.F.R. § 402.16 occur.

The duty to reinitiate is placed on the consulting agency (as well as the action agency),

because reinitiation relates directly to the opinions, assumptions, and legal standards developed

and imposed by the consulting agency in its Biological Opinion and Incidental Take Statement.

When those standards are exceeded or new information is learned that undermines the validity

of the BiOp and ITS, both the consulting agency and action agency have the duty to reinitiate.

NRDC v. Evans, 364 F. Supp. 2d 1083, 1133 (N.D. Cal. 2003) (“the ITS serves as a check on

the agency’s original decision that the incidental take of listed species resulting from the

proposed action will not violate section 7(a)(2) of the ESA.”). In contrast, when formal

consultation is required in the first instance (i.e., prior to the original agency action), the duty is

placed only on the action agency to initiate and request consultation because at that time the

action agency is the party with primary knowledge of the proposed action and the effects that it

may have on ESA-listed species. Reinitiation of formal consultation, however, arises under

circumstances that directly relate to the validity of the consulting agency’s own BiOp and ITS.

Nor is it relevant whether NMFS has authority to “compel” Reclamation to consult, as

argued on page 12 of Federal Defendants’ motion. The reinitiation of formal consultation by

NMFS by written notice or request to the action agency has independent and significant legal

consequences. First, upon reinitiation of formal consultation, the ESA prohibits the action

agency (here, BOR) from “making any irreversible or irretrievable commitment of resources

with respect to the agency action” that would foreclose formulation or implementation of

reasonable and prudent alternatives to the action. 16 U.S.C. § 1536(d); 50 C.F.R. § 402.09;

Sierra Club v. Marsh, 816 F.2d 1376, 1389 (9th Cir. 1987) (enjoining agency action prior to

commencement of reinitiated consultation and holding that statutory prohibition in Section 7(d)

applied following reinitiation); Wash. Toxics Coalition v EPA, 413 F.3d 1024, 1034-35 (9th Cir.

2005) (courts are authorized to enjoin agency action as necessary to protect the ESA-listed



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species pending completion of consultation); Defenders of Wildlife v. Martin, 454 F. Supp. 2d

1085, 1098-99 (E.D. Wash. 2006) (issuing injunction after reinitiation of formal consultation to

prohibit harm to ESA-listed species pending completion of reinitiated consultation).

Second, upon reinitiation, the existing BiOp and ITS lose their force and validity

exposing the action agency to legal liability, including injunctive relief, monetary fines and

penalties for any take that occurs pursuant to the proposed action. Center for Biological

Diversity v. BLM, 698 F.3d 1101, 1108 (9th Cir. 2012) (“when reinitiation of consultation is

required, the original biological opinion loses its validity as does its accompanying incidental

take statement, which then no longer shields the action agency from penalties for takings”);

Oregon Natural Resources Council v. Allen, 476 F.3d 1031, 1036-37 (9th Cir. 2007) (FWS

[consulting agency] cannot keep ITS in effect when it reinitiates consultation on existing

BiOp); Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1056-57 (9th Cir. 1994) (enjoining all

activity that may affect the protected salmon until re-initiated consultation completed); Mt.

Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1451 (9th Cir. 1992) (reinitiation of

consultation requires issuance of a new BiOp by NMFS or FWS before the agency action may

continue); Evans, 364 F. Supp. 2d at 1133 (N.D. Cal. 2003) (“If reinitiation of formal

consultation is required, NMFS would have to issue a new biological opinion before [agency

action] could continue”). These statutory prohibitions and risk-based practicalities do

effectively compel Reclamation to comply with a reinitation notice or request issued by NMFS.

Finally, whether NMFS itself has authority to “compel” BOR to participate in

consultation is not at issue here – the question is whether NMFS violated its own independent

legal duty imposed by 50 C.F.R. § 402.16 by failing to reinitiate the consultation at all, through

a request, notice, or otherwise. 6 At this time, there is no basis to determine whether BOR

6 Federal Defendants’ contention that NMFS has no authority to do anything except request

reinitiation and hope that the action agency agrees to consult is also contrary to authority. When reinitiation is required by 50 C.F.R. 402.16, NMFS can either request reinitiation with the action agency or it can issue notice that it is affirmatively reinitating consultation, withdraw



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would ignore NMFS’ reinitiation of consultation, because NMFS has failed entirely to take any

action to reinitiate the formal consultation, as it is required to do by 50 C.F.R. § 402.16.

Plaintiff does not lay all the fault on NMFS. Both NMFS and BOR each had and have an

independent legal duty to reinitiate formal consultation and to comply with the prohibitions and

requirements of the ESA pending reinitiation of formal consultation and issuance of a new

Biological Opinion. Federal Defendants concede that the claims against BOR under Count I

and II of Plaintiff’s First Amended Complaint are jurisdictionally valid under the ESA. Dkt.

#33, p. 10, fn. 4. This Court can order reinitiation of formal consultation by BOR, NMFS, or

preferably both.

Nor are Federal Defendants correct that Plaintiff’s claim against NMFS cannot be

redressed by this Court. In this case, neither BOR nor NMFS have reinitiated and thus both

agencies have failed to comply with their legal duty to reinitiate. The Tribe seeks an order

from this Court compelling both agencies to reinitiate formal consultation and enjoining action

that would harm the species pending completion of consultation. Dkt. #25, p. 22. This Court

can order NMFS to commence reinitiation of formal consultation with BOR, which could be

performed either through a request or notice to BOR. As described above, once reinitiation is

commenced through such a request or notice, there are specific legal consequences that attach

to BOR’s operation of the Project. Specifically, BOR must preserve the status quo and not take

any actions that would result in harm to protected species pending completion of the

consultation, which does not occur until issuance of a new Biological Opinion. Evans, 364 F.

Supp. 2d at 1133 (N.D. Cal. 2003). This Court may enjoin action that could harm species

the existing BiOp and associated ITS, and commence preparation of a new BiOp and ITS. See Oregon Natural Resources Council v. Allen, 476 F.3d at 1032, 1035 (explaining that FWS “voluntarily reinitiated consultation with two federal agencies” regarding the impact of timber harvests and that “FWS accordingly withdrew its favorable Biological Opinion regarding that portion of the timber harvest”). Id. at 1039 (explaining that FWS has authority to halt project and reinitiate consultation if take provisions in ITS are exceeded). In this case, NMFS has taken no action of any kind to reinitiate formal consultation by request or otherwise.



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pending completion of the consultation. Martin, 454 F. Supp. 2d at 1098-99. Reinitiation of

formal consultation is a significant legal measure, which the Tribe seeks to be compelled here.

This Court can and should order both or either of BOR or NMFS to commence the

reinitiation of formal consultation based on the undisputed exceedances of take limits in both

2014 and 2015. 50 C.F.R. § 402.16. Such an order would provide relief to Plaintiff and would

specifically redress Federal Defendants’ failure to reinitiate alleged here. Sierra Club v. Marsh,

816 F.2d at 1384 (9th Cir. 1987) (substantive and procedural violations of ESA, specifically

including refusal to reinitiate formal consultation, give rise to legally redressable injury).

B. There is No Valid Basis to Dismiss or Stay Plaintiff’s Claims In Counts I and II Because Formal Consultation Required by 50 C.F.R. § 402.16 Has Not Been Reinitiated; Thus, This Court Must Redress Federal Defendants’ Ongoing Failure to Comply With The ESA.

Federal Defendants argue that Counts I and II should be dismissed on grounds of

“prudential mootness” or stayed due to alleged ongoing administrative action. Federal

Defendants contend that there are ongoing agency and stakeholder discussions relating to the

take exceedances in 2014 and 2015 and that an amendment or revision to the existing ITS (but

not the 2013 BiOp) is anticipated to occur prior to the 2017 operational water year, starting

April 1, 2017. Based on these assertions, Federal Defendants rely on a doctrine of “prudential

mootness,” which they acknowledge has not been adopted in the Ninth Circuit. Even if

“prudential mootness” were an accepted doctrine in this Circuit, the doctrine is inapplicable

here, because the discussions and meetings that may be occurring between the agencies about

the take exceedances and future Project operations are not a legal substitute for the formal

consultation required under the ESA and its regulations. As discussed above, initiation and/or

reinitiation of formal consultation has specific and significant legal consequences that flow

from it, which are mandated by statute to protect ESA-listed species from harm pending

completion of such consultation. Pacific Rivers Council, 30 F.3d at 1056-57. There is no



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dispute that reinitiation of formal consultation has not occurred and thus Plaintiff seeks an order

from this Court compelling such formal reinitiation pursuant to 50 C.F.R. § 402.16.

1. Neither Dismissal Nor Stay Is Warranted Because Federal Defendants’ Legal Violation Here Is Undisputed and Ongoing And Is Affirmatively Harming ESA-Listed Fish Species In the Klamath River.

NMFS’ regulations make clear that: If the amount or extent of taking specified in the

ITS is exceeded, “reinitiation of formal consultation is required.” 50 C.F.R. § 402.16(a).

Reinitiation is also required under 50 C.F.R. § 402.16(b) where new information has revealed

effects of the action not previously considered. Federal Defendants concede in their motion

that formal consultation is not ongoing at this time and that NMFS is not preparing a new

Biological Opinion as would be required upon reinitiation of formal consultation. 50 C.F.R.

§§ 402.14(g)(4); 402.16; Madigan, 954 F.2d at 1451; Evans, 364 F. Supp. 2d at 1133. See Dkt.

#33, pp. 1, 19 (alleging that NMFS and BOR are engaged in “informal” consultation and

propose to “revise” the ITS). Because the take levels permitted by the ITS were exceeded

(significantly) in 2014 and again in 2015 and because new information has been identified that

undermines the analysis in the existing BiOp, reinitiation of formal consultation, withdrawal of

the existing BiOp and ITS, and preparation of a new BiOp and ITS is required.

Although Federal Defendants contend that they are engaged in “informal consultation”

at this time pursuant to 50 C.F.R. § 402.13, that also is incorrect. And to be clear, even if

Federal Defendants were engaged in “informal consultation,” that still would not be compliant

with their legal responsibility to reinitiate “formal” consultation under 50 C.F.R. § 402.16 due

to the exceedances of the permitted take levels in the ITS. Oregon Natural Desert Assn. v.

Tidwell, 716 F. Supp. 2d 982, 1006 (D. Or. 2010) (informal consultation following violations of

ITS in 2007 and 2008 not consistent with federal agency duty to reinitiate formal consultation).

The plain language of 50 C.F.R. § 402.16 requires reinitiation of “formal” consultation.

“Informal consultation” as provided for in 50 C.F.R. § 402.13 is a preliminary process

used to determine whether a proposed action is or is not likely to adversely affect listed species



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or critical habitat. It is used to determine whether formal consultation and preparation of a

Biological Opinion will be required in the first instance for a proposed project. 50 C.F.R.

§ 402.13. “Informal consultation” has little to no relevance when determining whether

reinitiation of formal consultation is required.7 Through prior preparation of the existing BiOp

and ITS, the federal agencies have already determined that the action at issue here (operation of

the Project by BOR) is likely to adversely affect listed species including SONCC Coho, which

are located downstream of the Project. The only relevant question at the reinitiation stage is

whether one of the triggers identified in 50 C.F.R. § 402.16 has been met. If such a trigger has

been met, such as the exceedance of take criteria here, reinitiation of formal consultation is

required. 50 C.F.R. § 402.16: Pacificans, 2016 U.S. Dist. LEXIS 119479, at *37 (N.D. Cal.,

Sep. 2, 2016) (reinitiation of consultation required once a trigger identified in 50 C.F.R.

§ 402.16 occurs), citing Cottonwood Environmental Law Center v. U.S. Forest Service, 789

F.3d 1075, 1088 (9th Cir. 2015); Tidwell, 716 F. Supp. 2d at 1006 (informal consultation not

sufficient when ITS take limits exceeded). See also Arizona Cattle Growers’ Association v.

USFWS, 273 F.3d 1229, 1249 fn. 28, 1251 (9th Cir. 2001) (take limit triggers in ITS are

“integral parts of statutory scheme, determining, among other things, when consultation must

be reinitiated”). The discussions and correspondence allegedly occurring at this time by NMFS

and BOR are neither formal nor informal consultation as described in the federal regulations –

they are simply inter-agency discussions without legal effect, which are occurring outside the

parameters and process provided for by the ESA and its implementing regulations.

Federal Defendants suggest that these ongoing agency discussions are intended to lead

to a “revision” of the ITS prior to 2017 irrigation season. This simply confirms that Federal

7 In some limited circumstances, reinitiation of informal consultation could be appropriate

where new information discloses a possible impact to listed species as related to a project previously found to have no impact on listed species. But here, where there is no question as to whether Project operations affect listed species and where specific exceedances of take in an ITS have occurred, informal consultation has no role to play. Formal consultation is required.



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Defendants have no intention to reinitiate formal consultation on the 2013 BiOp or to alter the

minimum flow regime and permitted Project diversions that are at the root of the take

exceedances that occurred in 2014 and 2015 and that are likely to continue occurring. Ledwin

Decl., at ¶ ¶ 23-24. Revision of the ITS would simply modify BOR’s safe harbor from liability

for its takings of imperiled SONCC Coho while failing to address the causes of the take

exceedances or developing measures to reduce those excessive levels of take. Id. at ¶ 25.

Revision of the ITS, outside of formal consultation, would also be unlawful under the

ESA. The Ninth Circuit Court of Appeals has ruled that it is not lawful for the consulting

agency to “revise” or “amend” an existing BiOp or ITS outside of the formal consultation

process in situations where the authorized level of taking has been exceeded by the action

agency or other triggers identified in 50 C.F.R. § 402.16 have been met. In Gifford Pinchot

Task Force v. USFWS, 378 F.3d 1059 (9th Cir, 2004), the FWS prepared Biological Opinions

relating to timber harvesting under the Northwest Forest Plan. After the BiOps were

completed, FWS issued “amendments” to the BiOps based on discovery of new information,

but FWS issued such amendments outside of formal consultation. Plaintiffs challenged these

“amendments” to the BiOps and the Ninth Circuit Court of Appeals ruled they were unlawful

and that reinitiation of formal consultation was required:

As a general rule, such ‘updates’ are prohibited because they would render the consultation process ‘meaningless’ and would allow the FWS to issue ‘unsupported Biological Opinions knowing that it could search for evidentiary support if the opinion was later challenged. Ariz. Cattle Growers’ Ass’n, 273 F.3d at 1245. As we have recognized, the discovery of new facts does not justify and ‘amendment’ to the BiOp, but mandates reinitiating formal consultations. Id. (citing 50 C.F.R. § 402.16).

The FWS responds that the general rule does not apply here because, unlike Arizona Cattle Growers, the FWS did not supplement the record, but formally amended the BiOps and it is the amended BiOps that are at issue. The FWS argues that it has the flexibility to do just that, ‘implicitly’ interpreting a regulation. By the same token, the FWS asserts that this is not new evidence, but just data summarized from previously existing data.



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We reject the FWS’ argument. If the data is new and the new data may affect the jeopardy or critical habitat analysis, then the FWS was obligated to reinitiate consultation pursuant to 50 C.F.R. § 402.16.

Id. at 1076-77 (emphasis added). Here, reinitiation of formal consultation is required under 50

C.F.R. § 402.16(b) (discovery of new information) as well as 50 C.F.R. § 402.16(a) as a result

of undisputed take exceedances. 50 C.F.R. § 402.16 does not provide for “amendments” or

“revisions” to the BiOp or ITS outside of formal consultation. Instead, it plainly mandates

reinitation of formal consultation, which Federal Defendants have failed to do here.8 PCFFA,

226 Fed. Appx. 715, 717 (9th Cir. 2007) (ruling, in litigation involving Klamath Project

operations: “it is well settled that a previous agency determination in a Biological Opinion

cannot be amended or supplemented with post-determination analysis or evidence without

reinitiating the consultation process” (citing Gifford Pinchot, 378 F.3d at 1076-77)).

2. Prudential Mootness Is Not An Accepted Doctrine in the Ninth Circuit And It Has No Application Here.

Federal Defendants argue on page 20 of their motion that this Court should dismiss

Counts I and II as prudentially moot, contending in support that “Reclamation and NMFS have

announced deadlines for completing the very processes that Count I, II, and IV seek to compel.”

Federal Defendants’ statement is patently false. The process sought to be compelled by

Plaintiff in Count I and II is the reinitiation of formal consultation that is legally required by 50

C.F.R. § 402.16 based on the repeated take exceedances that occurred in 2014 and 2015. Not

only is there no current formal consultation ongoing, but there has been no commitment or

deadline of any kind by NMFS or BOR to reinitiate such consultation. Ledwin Decl., at ¶ 23-24.

Federal Defendants also concede that prudential mootness is not an accepted doctrine in

the Ninth Circuit. Dkt. #33, p. 21. In Hunt v. Imperial Merch. Servs., 560 F.3d 1137, 1142 (9th

8 Plaintiff also relies on Mayo v. Jarvis, 2016 WL 1254213, 2016 U.S. Dist. LEXIS 41005

(D.D.C., Mar. 29, 2016) to contend that amending the ITS is legally sufficient. Mayo is distinguishable, because unlike here, the federal agencies had reinitiated formal consultation in Mayo as required by 50 C.F.R. § 402.16. See 2016 U.S. DIST LEXIS 41005, at *105-106.



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Cir. 2009), cited by Federal Defendants, the Court declined to apply “prudential mootness,”

and explained that the doctrine applied only where “circumstances [have] changed since the

beginning of litigation that forestall any occasion for meaningful relief.” Id. That is not the

case here, where the reinitation of formal consultation sought by Plaintiff has not occurred nor

is it expected to occur. “Prudential mootness” would also have no application where the

proposed ongoing modification to the challenged practice (e.g., revision of the ITS outside of

formal consultation) would also be unlawful on its face. Gifford Pinchot, 378 F.3d at 1076-77

(unilateral “amendments” to BiOp by FWS/NMFS unlawful where reinitiation of formal

consultation triggered and required by 50 C.F.R. § 402.16); PCFFA, 226 Fed. Appx. at 717.

The only appropriate course of action where take exceedances occur is reinitiation of

formal consultation. Tidwell, 716 F. Supp. 2d at 1006. Whether actual reinitiation of formal

consultation, including withdrawal of the existing BiOp and ITS, preparation of a new BiOp

and ITS, and protection of SONCC coho pending completion of consultation, could moot

Plaintiff’s claim in Count I is irrelevant at this point because such reinitiation of formal

consultation has not occurred nor is there any evidence that Federal Defendants intend to

actually reinitiate formal consultation on the BiOp. See NRDC v. Norton, Case No. 05-CV-

1207-OWW-LJO, 2006 U.S. DIST. LEXIS 94689 (E.D. Cal. 2007) (act of reinitiating formal

consultation would not necessarily moot claim if Federal Defendants failed to take actions to

maintain status quo or protect species from harm pending completion of consultation).

The magistrate report and recommendation from Oregon Nat. Res. Council v. Keys,

Case No. 02-3080-CO, 2004 WL 1048168 (D. Or., May 7, 2004) is distinguishable for a

number of reasons and not persuasive authority. In that case, the failure to reinitiate claim was

based on alleged new information and the need to reinitiate was factually disputed – unlike

here, where there is no dispute that Project operations exceeded take levels, which mandates

reinitiation of formal consultation. In addition, in Keys, BOR presented evidence of its intent to

actually reinitiate formal consultation on related projects on a date certain. Keys, at *16-17



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(citing declarations of BOR’s intent “to proceed with reinitiation of consultation on Refuge

Lease Lands by December 1, 2004 and on the Klamath Project Facilities by February 1,

2004”).9 Here, Federal Defendants have presented no evidence whatsoever that they intend to

reinitiate formal consultation and prepare a new BiOp. In fact, their expressed intentions

confirm that they are not planning to reinitiate formal consultation, but are instead planning to

simply “revise” the ITS outside of formal consultation in a manner contrary to law. Plaintiff

also disputes that a mere declaration of intent by Federal Defendants to reinitiate formal

consultation at some point in the future would moot this case either legally or prudentially.

3. The Alternative Request For A Stay Should Be Denied Given Federal Defendants Clear Legal Violation and the Harm That Would Result to the Imperiled SONCC Coho Species If Such Stay Were Granted.

In the alternative, Federal Defendants ask this Court to stay this litigation until April 24,

2017 to allow their extra-legal agency discussions to continue unabated. Dkt. #33, p. 25. There

is no basis to grant any stay in light of Federal Defendants’ undisputed failure to comply with

their clear legal obligation to reinitiate formal consultation pursuant to 50 C.F.R. § 402.16.

Plaintiff is entitled to immediately seek and obtain relief on its failure to reinitiate claim.

A stay would cause hardship to Plaintiff and its interests in protecting fish at issue here.

As discussed above, reinitiation of formal consultation would require protection of the ESA-

listed species pending completion of the consultation. In contrast, Federal Defendants’

proposal to stay this case and continue their discussions outside of formal consultation would

put the species at risk of harm from Project operations at least until April 24, 2017 and perhaps

beyond. Ledwin Decl., at ¶ ¶ 20-22. Federal Defendants’ proposed delay until April 24, 2017

would fail to adequately protect juvenile SONCC Coho given that juvenile coho outmigration

commences in March and substantial populations of coho are migrating in the river well before

9 Given that the date of the magistrate report in Keys is May 7, 2004, it appears that BOR

had actually reinitated formal consultation by the date of the magistrate order. In NRDC v. Norton, Judge Wanger characterized Keys as a case where the federal agencies had actually reinitiated formal consultation prior to the claim being deemed moot. Norton, at *23-24.



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April 24. Ledwin Decl., at ¶¶ 20-22. In addition, after April 1, BOR typically does not change

the calculated Project Supply (i.e., water available for irrigation) for the upcoming irrigation

year. 2013 BiOp, at p. 24.10 Finally, there is no guarantee that NMFS and BOR will ultimately

decide to alter the BiOp or ITS to provide additional protection for fish by April 24, 2017.

In support of their proposed stay, Federal Defendants argue that Plaintiff “does not, and

cannot, identify any specific, required procedure that is not being followed.” Dkt. #33, at p. 23.

The required procedure is formal consultation, which is specifically called for in Federal

Defendants’ own regulations. In Cottonwood, the Ninth Circuit addressed failure to reinitiate

under 50 C.F.R. § 402.16, finding that a Plaintiff in such a case “is not required to establish

what a Section 7 consultation would reveal, or what standards would be set, if the [agency] were

to reinitiate consultation. Ideally, that is the objective and purpose of the consultation process.”

Cottonwood, 789 F.3d at 1082. Here, the Tribe properly alleged failure to reinitiate formal

consultation and Federal Defendants concede they have not reinitiated. Plaintiff need do no

more to obtain relief. Nor is there any need for further development of the record. Id. at 1084

(“because the alleged procedural violation – failure to reinitiate consultation – is complete, so

too is the factual development necessary to adjudicate the case”). Mayo v. Jarvis also does not

help Federal Defendants, because unlike here, the federal agencies in Mayo reinitiated formal

consultation as required by 50 C.F.R. § 402.16. 2016 U.S. DIST LEXIS 41005, at *105-106.

The federal agencies are not “following a path that is consistent with the applicable

authorities.” Dkt. #33, p. 25. They are wholly ignoring their plain legal obligation to reinitiate

formal consultation and to protect ESA-listed species pending completion of that consultation.

Based on NMFS and BOR clear violations of the ESA and applicable regulations, the Tribe

10 Disease rates are tied in part to the water year type (i.e., dry v. wet) and the determination

of water year type and flow regime is not known until shortly before the date that BOR locks in its irrigation allocations. Thus, injunctive relief requiring additional flow is necessary prior to April 1 to ensure adequate water is delivered during the coho outmigration. Waiting until after the water year is known each year would preclude effective relief. Ledwin Decl., at ¶¶ 21-22.



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intends to seek entry of preliminary injunctive relief no later than commencement of the Spring

2017 juvenile outmigration to enjoin BOR from operating the Project pursuant to the 2013

BiOp flows. Staying this litigation until April 24, 2017 would wholly prevent effective relief

for fish and for the Tribe. Federal Defendants’ alternative request for a stay should be denied.

C. Plaintiff Has Alleged A Valid Claim Against BOR For Unlawful Take; Allowing Project Operations to Continue Pursuant to the 2013 BiOp’s Minimum Flow Regime Will Result In Unlawful Take of SONCC Coho Juveniles During the Spring 2017 Outmigration.

Federal Defendants argue that Plaintiff cannot sue BOR to enjoin foreseeable future

take of SONCC Coho that will result from its Project operations pursuant to the flow regime

prescribed in the 2013 BiOp. Continued operation of the Project pursuant to the minimum flow

regime in the 2013 BiOp, as occurred during juvenile coho outmigration in 2014 and 2015, will

certainly result in unlawful take of SONCC Coho. Ledwin Decl., at ¶ 20. Thus, Plaintiff has a

valid cause of action for unlawful take against BOR under the ESA, which can be redressed

through injunction of Project operations pursuant to the terms of the 2013 BiOp.11

BOR implemented the flow regime from the 2013 BiOp in both 2014 and 2015.

Operation of the Project pursuant to the minimum flows prescribed in the BiOp in those years

resulted in skyrocketing levels of infection in fish that significantly exceeded the maximum take

levels prescribed in the 2013 BiOp and ITS. Although the previous maximum infection rate

during 2006-2015 was 49%, the infection rate was 81% in 2014 and 91% in 2015 due to the

minimal flows released at Iron Gate Dam pursuant to the 2013 BiOp. Ledwin Decl., at ¶ ¶ 11-

12. This increased infection rate correlated directly with the implementation of the 2013 BiOp

flows. Id. at ¶ 11. Prior to implementation of the BiOp flows in 2013, no other year in the

2006-2015 period of record recorded infection rates above 49%. Id. at ¶ 12. It is not

speculation that operation of the Project pursuant to the minimum BiOp flows will continue to

produce an unallowable level of infection (in excess of 50%) and corresponding take during the

11 Plaintiff stipulates to withdraw/dismiss its “take” claim against NMFS in Count III.



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Spring 2017 juvenile outmigration and jeopardize the further existence of SONCC Coho.

Ledwin Decl. at ¶¶ 13-20.

There is a demonstrated and significant correlation between low flows (such as those in

the 2013 BiOp) and increased infection rates (such as those experienced in 2014 and 2015).

Ledwin Decl., at ¶ ¶ 7-11. This correlation is supported by the observation of reduced disease

infection and mortality estimates in wetter years with higher flows and vice versa. Id. at ¶¶ 11-

18. The 2013 BiOp minimum flows for April, May, and June are respectively 1,325 cfs, 1175

cfs, and 1025 cfs as measured at Iron Gate Dam. Id. at ¶ 13. As confirmed by Project

operations in 2014 and 2015, these flow levels are demonstrably insufficient to protect fish

from increased disease levels. Id. at ¶ ¶ 11-20. For example, in 2008 (the year with the previous

maximum disease infection rate of 49%), flows during that same time period (April – June )

were much higher than the 2013 BiOp flows - approximately 3,000 cfs from April 1 to May 1,

2008 at Iron Gate Dam, dropping to 2,000 cfs by June 1, 2008. Id. at ¶ 13. Flows prescribed in

the 2013 BiOp are insufficient to achieve the goal of reducing infection rates below 49%. Id.

Between 2006 and 2015, there were five years in which infection rates were measured

below 34%. Ledwin Decl., at ¶ 15. Flows during 2012 (30% infection), the year with the

median level of disease in those five years, were higher than those in 2008 (49% infection) and

significantly higher than the minimum flows prescribed in the 2013 BiOp, with flows in 2012

approaching approximately 4,000 cfs in mid and late April of that year (as compared to the

1,325 cfs level prescribed in the 2013 BiOp). Id. In 2012, flows in April, May, and June were

always higher (usually significantly higher) than the minimum flows in the 2013 BiOp. Id.

Federal Defendants assert that infection rates are expected to be below the maximum

permitted levels in 2016. Even if that ultimately proves true, increased precipitation allowed

BOR to release higher flows into the river in the winter and spring of 2016 that were far in

excess of the minimum flows prescribed in the 2013 BiOp. Ledwin Decl., at ¶ 16. This

included a controlled spill event for dam safety purposes in March 2016 that likely contributed



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to reduced disease infection rates. Id. 2016 Project operations do not contradict Plaintiff’s

argument that operating the Project pursuant to the 2013 BiOp minimum flows will result in

unlawful take. The 2016 data is consistent with Plaintiff’s argument that increased minimum

flows at Iron Gate Dam in excess of the flows prescribed in the 2013 BiOp are required for

BOR to avoid unlawful take of SONCC coho during juvenile outmigration. Id.

The Tribe not only claims that BOR’s operation of the Project in accordance with the

2013 BiOp has unlawfully taken SONCC coho in 2014 and 2015, but also that BOR will take

SONCC coho in the future (as soon as the Spring 2017 juvenile outmigration) if it is permitted

to operate the Project at the minimum flow levels authorized by the 2013 BiOp. Id. at ¶ 20.

Based on this reasonably foreseeable future taking of SONCC coho, the Tribe seeks injunctive

relief that would prevent BOR from operating the Project pursuant to the 2013 BiOp flows.

The Tribe’s unlawful take claim is permissible under the ESA citizen suit provision, 16

U.S.C. § 1540(g). In Forest Conservation Council v. Rosboro Lumber Company, 50 F.3d 781

(9th Cir. 1995), the Ninth Circuit confirmed that the ESA citizen suit provision does provide a

cause of action and mechanism to enjoin future takings. The Court noted that “Congress’

overriding purpose in enacting the ESA indicates that it intended to allow citizen suits to enjoin

an imminent threat of harm to protected wildlife. . . . and that “[t]he plain intent of Congress in

enacting [the ESA] was to halt and reverse the trend toward species extinction, whatever the

cost.” Id. at 785 (quoting Tennessee Valley Authority v. Hill, 437 U.S. 153, 184 (1978).

Moreover, the Court found that Congress anticipated citizen suits to enjoin prospective injuries

that have not yet occurred to species. Id. at 786.

The Court in Rosboro Lumber also rejected the argument made by Federal Defendants

here, that Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987)

precludes the Tribe’s claim. Rosboro Lumber, 50 F.3d at 786-87. Gwaltney addressed the

question of whether a citizen suit could be maintained for unlawful conduct that occurred

entirely in the past and where there was no allegation of future violations. The situation in



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Gwaltney is not present where there is an allegation of a forthcoming future violation. Id.

Gwaltney is no bar to Plaintiff’s unlawful takings claims against BOR here.

The Ninth Circuit in Rosboro Lumber did not require the plaintiff to show that a taking

was occurring at the time the suit was filed; rather, an allegation of future taking was sufficient.

Id. at 787-788. Following Rosboro Lumber, other courts have held that “when considering the

possibility of a violation [of the ESA] evidence of past takings is instructive to the Court,

particularly if there is evidence that future similar takings are likely.” Martin, 454 F. Supp. 2d

at 1098 (E.D. Wash. 2006). In Martin, the “evidence of past takes and the likelihood of future

harms cements the Court’s conclusion that Plaintiffs have made the requisite showing . . . that a

violation of § 9’s prohibition against ‘take’ in the form of harassment and harm are likely in the

future.” Id. at 1099. The same situation exists here. BOR is currently authorized to operate

the Project and release flows at Iron Gate Dam in a manner consistent with the 2013 BiOP.

Yet, BOR’s operations in 2014 and 2015 show that operating the Project pursuant to the 2013

BiOp flows will certainly result in takings in excess of those authorized by the ITS, which are

unlawful under Section 9 of the ESA. Ledwin Decl., at ¶ 20. The Tribe is entitled to sue under

the ESA citizen suit provision for the purpose of prospectively enjoining these future unlawful

takings of SONCC Coho, which will occur as early as the Spring 2017 juvenile outmigration.

D. Plaintiff’s Claim Against NMFS Regarding Consultation on Essential Fish Habitat Arises Under 16 U.S.C. § 1855(b)(4)(A); This Court Has Jurisdiction to Adjudicate NMFS’ Failure to Comply with That Section.

Plaintiff’s First Amended Complaint asserts a claim against NMFS arising under 16

U.S.C. § 1855(b)(4)(B) for failure to consult regarding the effects of the Klamath Project on

essential fish habitat designated under the Magnuson-Stevens Fishery Conservation and

Management Act (MSFCMA). Federal Defendants argue that Section 1855(b)(4)(B) provides

no legal duty on NMFS as the consulting agency. This is correct – the legal duty imposed on

the Secretary (i.e., NMFS) arises under 16 U.S.C. § 1855(b)(4)(A), which reads:

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



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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) (emphasis added). The reference to subsection (B) instead of (A) in

Plaintiff’s First Amended Complaint was an inadvertent error and is no basis for dismissal

here.12 Federal Defendants assert that BOR initiated EFH consultation in 2013. Dkt. #33, p. 20.

Even if correct, it is undisputed that NMFS has failed to provide recommendations to BOR as

required by 16 U.S.C. § 1855(b)(4)(A) despite the fact that BOR has now been implementing

the proposed action under the 2013 BiOp for over three years. The assertion that EFH

consultation will be completed by April 24, 2017 is speculative and simply confirms that such

consultation will again not be completed prior to commencement of the 2017 water year.

V. CONCLUSION

Based on the foregoing, this Court should dismiss Federal Defendants’ motion to

dismiss and alternative motion to stay, and order as follows: (1) Plaintiff has alleged a

cognizable claim against NMFS for failure to reinitiate formal consultation as required by 50

C.F.R. § 402.16 and this Court has jurisdiction over such claim under the APA; (2) Federal

Defendants concede that this Court has jurisdiction over Counts I and II of Plaintiff’s First

Amended Complaint against BOR; thus, there is no jurisdictional or other basis to dismiss

those claims; (3) Plaintiff has alleged a cognizable claim for unlawful take against BOR and

this Court has jurisdiction to hear such claim pursuant to 16 U.S.C. § 1540(g); (4) Plaintiff has

alleged a cognizable claim against NMFS for failure to consult under 16 U.S.C. §1855(b)(4)(A)

and this Court has jurisdiction over such claim under the APA; (5) The Court should deny

Federal Defendants’ request to dismiss any claims on grounds of prudential mootness; and (6)

The Court should deny Federal Defendants’ request to stay any of the claims.

12 Plaintiff will correct the error through an errata notice or, if necessary, amendment. To

the extent that Federal Defendants contend that no cognizable claim exists under 16 U.S.C. § 1855(b)(4)(A), they will have the opportunity to present such argument in their reply brief.



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Respectfully submitted this 19th day of October, 2016.

MORISSET, SCHLOSSER, JOZWIAK & SOMERVILLE /s/ Thomas P. Schlosser Thomas P. Schlosser WSBA #06276 Thane D. Somerville WSBA #31468 (pro hac vice) Attorneys for the Hoopa Valley Tribe



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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing document, Hoopa Valley Tribe’s

Response to Motion to Dismiss Or, In the Alternative, to Stay, with the Clerk of the Court for

the United States District Court for the Northern District of California by using the CM/ECF

system on October 19, 2016. I certify that all participants in the case are registered CM/ECF

users and that service will be accomplished by the appellate CM/ECF system on October 19,

2016.

Executed this 19th day of October, 2016, at Seattle, Washington.

MORISSET, SCHLOSSER, JOZWIAK & SOMERVILLE

s/Thomas P. Schlosser Thomas P. Schlosser

T:\WPDOCS\0020\09773\Reinit\HVT Response to Motion to Dismiss_FILE.docx kfn:10/19/16


case 3:16-cv-04294-who document 44 filed 10/19/16 page 1 of 32 · 2017. 2. 9. · case no....

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