MEMORANDUM DECISION AND ORDER RE MOTIONS TO DISMISS & REQUESTING SUPPLEMENTAL BRIEFING (Docs. 1029, 1030, 1031, 1032, 1036).

LAWRENCE J. O'NEILL, Chief District Judge.

I. INTRODUCTION

On April 28, 2016, Plaintiffs, a coalition of environmental interest groups led by the Natural Resources Defense Council, filed the currently operative Fourth Supplemental Complaint ("4SC"), which includes three pre-existing claims brought under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., and the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq., alleging that the U.S. Bureau of Reclamation ("Bureau" or "Reclamation") and the U.S. Fish and Wildlife Service ("FWS" or "Service") acted unlawfully by renewing, implementing, and approving the renewal and implementation of certain long-term water contracts in reliance on a 2005 Biological Opinion ("2005 FWS Smelt OCAP BiOp") issued by FWS pursuant to the ESA, that the agencies knew, or should have known, was inadequate to protect the ESA-listed delta smelt. Doc. 575 (filed Apr. 8, 2008). Specifically, the pre-existing claims challenged renewal of two sets of contracts: (1) those held by the Sacramento River Settlement ("SRS") Contractors; and (2) those held by the Delta-Mendota Canal Unit ("DMC") Contractors. Id.

The 4SC added three new claims to this action: the Fourth Claim for Relief alleges FWS failed to conduct an adequate consultation on the effects of the SRS and DMC Contract renewals on delta smelt; the Fifth Claim for Relief alleges Reclamation failed to reinitiate consultation on the alleged impact of the SRS Contracts on ESA-listed winter-run and spring-run Chinook salmon; and the Sixth Claim for Relief alleges Reclamation and the SRS Contractors have unlawfully "taken" winter-run and spring-run Chinook in violation of Section 9 of the ESA ("Section 9"), 16 U.S.C. § 1538(a).

The SRS Contractors move to dismiss the First, Second, Third, Fifth, and Sixth Claims for Relief. Doc. 1031 ("SRS MTD"). The Federal Defendants move to dismiss the Fifth and Sixth Claims for Relief. Doc. 1032 ("FD MTD"). The DMC Contractors move to dismiss the First, Second, and Third Claims for Relief. Doc. 1033 ("DMC MTD"). James Irrigation District and Del Puerto Water District (collectively, "JID Parties") join in the motions to dismiss the First, Second, and Third Claims for Relief, Docs. 1029 & 1030 ("JID Joinder"), as does the Banta-Carbona Irrigation District, Patterson Irrigation District, West Stanislaus Irrigation District, and the West Side Irrigation District (collectively, "Banta-Carbona Parties"). Doc. 1036 ("Banta-Carbona Joinder"). Plaintiffs oppose the motions. Doc. 1039 ("Pltf. Opp."). All moving parties filed replies. Docs. 1040 & 1041 ("JID Reply"), 1042 ("DMC Reply"), 1043 ("FD Reply"), 1044 ("SRS Reply"). No party moves to dismiss the Fourth Claim for Relief.

The Court has spent an inordinate amount of time sorting through the parties' legal arguments and the relevant legal authorities. Some of the issues proved to be highly complex, yet have not been given sufficient attention by the parties. This order resolves as many of the legal disputes as possible, while permitting supplemental briefs on those issues that require further consideration by the parties and the Court. The Court notes that at times the parties' own arguments proved to be internally inconsistent, adding to the layered confusion and further delaying resolution of this motion and progress of this already more than a decade-old case.

II. LEGAL BACKGROUND

"Under the ESA, the Secretary of the Interior and the Secretary of Commerce are charged with identifying threatened and endangered species and designating critical habitats for those species." Nat. Res. Def. Council v. Jewell, 749 F.3d 776, 779 (9th Cir. 2014) ("NRDC v. Jewell") (citing 16 U.S.C. § 1533). FWS and the National Marine Fisheries Service ("NMFS") administer the ESA on behalf of the Departments of the Interior and Commerce, respectively. See 50 C.F.R. §§ 17.11, 222.101(a), 223.102, 402.01(b). Section 7 of the ESA requires federal agencies to ensure that their activities do not jeopardize the continued existence of listed endangered or threatened species or adversely modify those species' critical habitats. 16 U.S.C. § 1536(a)(2); see also Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1020 (9th Cir. 2012). Section 7's implementing regulations provide that "[e]ach Federal agency shall review its actions at the earliest possible time to determine whether any action may affect listed species or critical habitat[s]." 50 C.F.R. § 402.14(a). An agency proposing to take an action (often referred to as the "action agency") must first inquire of FWS or NMFS1 whether any threatened or endangered species "may be present" in the area of the proposed action. See 16 U.S.C. § 1536(c)(1). If endangered species may be present, the action agency must prepare a "biological assessment" ("BA") to determine whether such species "is likely to be affected" by the action. Id. If the BA determines that a threatened or endangered species "is likely to be affected," the agency must formally consult with FWS. See id. § 1536(a)(2); 50 C.F.R. 402.14(a).

Formal consultation results in the issuance of a "biological opinion" ("BiOp") by FWS. See 16 U.S.C.§ 1536(b). If the BiOp concludes that the proposed action would jeopardize the species or destroy or adversely modify critical habitat, see id. § 1536(a)(2), then the action may not go forward unless FWS can suggest a "reasonable and prudent alternative[]" ("RPA") that avoids jeopardy, destruction, or adverse modification. Id. § 1536(b)(3)(A). If the BiOp concludes that jeopardy is not likely and that there will not be adverse modification of critical habitat, or that there is a RPA to the agency action that avoids jeopardy and adverse modification, and that the incidental taking of endangered or threatened species will not violate Section 7(a)(2), the consulting agency can issue an "Incidental Take Statement" ("ITS") which, if followed, exempts the action agency from the prohibition on takings found in Section 9 of the ESA. 16 U.S.C. § 1536(b)(4); Aluminum Co. of Am. v. Administrator, Bonneville Power Admin., 175 F.3d 1156, 1159 (9th Cir. 1999).

Even after consultation is complete, an agency has a duty to reinitiate formal consultation under certain circumstances, including if: "the amount or extent of taking specified in the incidental take statement is exceeded"; "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"; or "the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion." 50 C.F.R. § 402.16.

Section 9, prohibits, among other actions, the "take" of any listed animal species by any "person subject to the jurisdiction of the United States." 16 U.S.C. § 1538(a)(1)(B). The ESA defines "take" as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19). Two safe harbor provisions described in greater detail below immunize persons from Section 9 liabilities and penalties where takings committed during otherwise lawful activities occur in compliance with the terms and conditions of either an ITS issued after Section 7 consultation or an Incidental Take Permit ("ITP") issued pursuant to ESA Section 10. 16 U.S.C. § 1539.

III. FACTUAL AND PROCEDURAL HISTORY

1. The Central Valley Project and the State Water Project

The Central Valley Project ("CVP") and the State Water Project ("SWP"), "operated respectively by [Reclamation] and the State of California, are perhaps the two largest and most important water projects in the United States." San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 592 (9th Cir. 2014) ("San Luis v. Jewell"). "These combined projects supply water originating in northern California to more than 20,000,000 agricultural and domestic consumers in central and southern California." Id. As part of CVP operations, Reclamation releases water stored in CVP reservoirs in northern California, which then flows down the Sacramento River to the Sacramento-San Joaquin Delta ("Delta"). Id. at 594. Pumping plants in the southern region of the Delta then divert the water to various users south of the Delta. See id. at 594-95.

2. Delta Smelt

The delta smelt (Hypomesus transpacificus) is a "small, two-to-three inch species of fish endemic to the [Delta]." Id. at 595. In 1993, FWS concluded the delta smelt's population had declined by ninety percent over the previous twenty years and listed it as a "threatened" species under the ESA. Determination of Threatened Status for the Delta Smelt, 58 Fed. Reg. 12,854, 12,855 (Mar. 5, 1993). FWS further determined that "Delta water diversions," including those resulting from operations of the CVP, are the most significant "synergistic cause[]" of the decline in the delta smelt population. Id. at 12,859.

3. Winter-Run Chinook

Winter-run Chinook (Oncorhynchus tshawytscha) are listed as "endangered" under the ESA. Endangered and Threatened Species: Final Listing Determinations for 16 ESUs of West Coast Salmon, and Final 4(d) Protective Regulations for Threatened Salmonid ESUs, 70 Fed. Reg. 37,160 (June 28, 2005). According to the 4SC, the winter-run Chinook's population "has declined precipitously since the early 1980s, from an estimated historic high of 117,808 in 1969 to as few as 191 adult individuals returning to spawn in 1991." 4SC ¶ 64. Winter-run Chinook historically inhabited the upper Sacramento River and its tributaries. Id. ¶ 66. The construction of Shasta Dam blocked access to almost all of the winter-run Chinook's rearing waters. Id. Today, the upper Sacramento River below Keswick Dam is the only remaining spawning area used by winter-run Chinook. Id. It is alleged that the winter-run Chinook is "at high risk of extinction" and that a prolonged drought could have devastating effects on the species. Id. It is further alleged that winter-run Chinook are particularly vulnerable during the "temperature management season," which generally lasts from June through October. Id. ¶ 67.

Id.

4. Spring-Run Chinook

The spring-run Chinook (Oncorhynchus tshawytscha) historically displayed the second largest salmon run in the Central Valley watershed and supported the bulk of the region's commercial fishery. Id. ¶ 68. Only remnant independent natural spring-run Chinook populations survive, relying principally upon small tributaries of the Sacramento River below Shasta Dam for spawning. Id. ¶¶ 68, 71. Like winter-run Chinook, spring-run Chinook require cold water temperatures for successful spawning, egg incubation, and rearing. Id. ¶ 72.

5. Long-Term Contract Renewal/Operations and Criteria Plan

"In the 1960s, the Bureau entered into a number of long-term contracts pertaining to the CVP." NRDC v. Jewell, 749 F.3d at 780. "The [SRS] Contracts are forty-year agreements between the Bureau and holders of certain senior water rights." Id. "These contracts grant the Bureau some rights to the encumbered water while also providing senior rights holders a stable supply of water." Id. The DMC Contracts allow junior water users to draw water from the Delta-Mendota Canal. Id. By 2004, the DMC Contracts and the SRS Contracts had expired or were about to expire. Id. On June 30, 2004, the Bureau prepared an operational plan, the Operations Criteria and Plan ("OCAP" or "2004 OCAP"), to provide, among other things, a basis for renewing various contracts, including the DMC and SRS Contracts. Id.

6. ESA § 7 Consultations Leading Up to Contract Renewal

Pursuant to ESA § 7, the Bureau initiated consultation with FWS regarding the effect of the OCAP on the delta smelt. Id. at 780-81. FWS issued an initial BiOp in 2004 (the "2004 FWS Smelt OCAP BiOp"), which concluded that the OCAP would not jeopardize the delta smelt. Id. at 781. The Bureau re-initiated consultation after the Ninth Circuit's decision in Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1069 (9th Cir. 2004), which invalidated a regulation upon which the 2004 FWS Smelt OCAP BiOp relied. NRDC v. Jewell, 749 F.3d at 781. In 2005, FWS issued a revised BiOp (the "2005 FWS Smelt OCAP BiOp"), which also concluded that the OCAP would not jeopardize the delta smelt. Id.

Reclamation separately requested a BiOp from NMFS on whether continued operation of the CVP pursuant to the OCAP would jeopardize various species under that agency's jurisdiction, including the winter-run and spring-run Chinook. See PCFFA v. Gutierrez, No. 1:06-cv-245-OWW-GSA ("PCFFA"), Doc. 69 ¶ 77 (First Amended Complaint) ("PCFFA FAC"). NMFS issued a BiOp on October 22, 2004 regarding the effects of the OCAP on the species under its jurisdiction, including several salmonid species ("2004 NMFS Salmonid OCAP BiOp"). 4SC ¶ 107.

Also in 2004 and 2005, the Bureau prepared BAs that concluded that renewal of the Contracts would not adversely affect the delta smelt. NRDC v. Jewell, 749 F.3d at 781. The Bureau requested additional consultation with FWS regarding its plans to renew the Contracts. Id.

Id. (emphasis added).

Again, Reclamation separately consulted with FWS on the effects of renewing the Contracts on the listed salmonid species under NMFS's jurisdiction. 4SC ¶ 108. As was the case with FWS, NMFS concurred that executing the Contracts would not adversely impact listed salmonids. Id.

In 2004 and 2005, the Bureau renewed 141 SRS Contracts and 18 DMC Contracts based on FWS's and NMFS's concurrence letters. NRDC v. Jewell, 749 F.3d at 781.

7. Plaintiffs Challenge the 2004/2005 FWS Smelt OCAP BiOp

In February 2005, Plaintiffs initiated this lawsuit, challenging the 2004 FWS Smelt OCAP BiOp. Doc. 1. Subsequent amendments to the Complaint updated Plaintiffs' allegations to include challenges to the 2005 FWS Smelt OCAP BiOp. Doc. 403 (Second Amended Complaint ("SAC")). Plaintiffs raised numerous challenges to the legal sufficiency of the 2005 FWS Smelt OCAP BiOp in the SAC, filed July 10, 2007. Id. Among other things, the SAC alleged that the 2005 FWS Smelt OCAP BiOp did not "adequately consider or address the effects of [the] long-term water service contracts on threatened and endangered species," id. ¶ 32, and that the Bureau "has taken and is taking actions that could foreclose implementation of reasonable and prudent alternatives that would avoid jeopardy, including but not limited to signing and implementing new long-term contracts promising delivery of substantially increased quantities of water, in violation of [ESA] section 7(d)." Id. ¶ 81. In 2007, the 2005 FWS Smelt OCAP BiOp was set aside as unlawful. Nat. Res. Def. Council v. Kempthorne, 506 F.Supp.2d 322 (E.D. Cal. 2007). The Bureau did not appeal.

8. Parallel Challenge to the 2004 NMFS Salmonid OCAP BiOp

On August 9, 2005, a coalition of environmental organizations largely overlapping with the present Plaintiffs filed a parallel complaint against Reclamation and NMFS alleging that the NMFS 2004 OCAP Salmonid BiOp was inadequate. Pac. Coast Fed'n of Fishermen's Associations v. Gutierrez, 606 F.Supp.2d 1122, 1131 (E.D. Cal. 2008) ("PCFFA I"). Plaintiffs similarly sought to "[e]njoin and set aside any and all actions" that relied on it, including the delivery of water under long-term water contracts at issue here. Id. at 1183 ("Existing renewal and any new water service contracts have already been challenged in this litigation."); PCFFA FAC at 38.2

9. District Court Ruling in PCFFA

On May 20, 2008, the previously assigned district judge found that NMFS acted arbitrarily and capriciously by failing to consider certain facts in the NMFS 2004 Salmonid OCAP BiOp. PCFFA I, 606 F. Supp. 2d at 1193-94. In July 2008, the Court considered Plaintiffs' motion for injunctive relief, seeking implementation of remedies designed to aid salmonids in the Sacramento River basin. In the context of this request for injunctive relief, the Court concluded that the Bureau had a "mandatory (i.e., non-discretionary) legal obligation to make releases from Shasta Reservoir for delivery to the [SRS] Contactors." Pac. Coast Fed'n of Fishermen's Associations v. Gutierrez, 606 F.Supp.2d 1195, 1201 (E.D. Cal. 2008) ("PCFFA II"). Plaintiffs did not seek to amend or supplement their complaint in PCFFA.

10. Third Amended Complaint in This Case

In June 2008, Plaintiffs filed the TAC, directly challenging the sufficiency of FWS's ESA consultation undertaken in connection with the renewal of 41 Contracts. See Doc. 575 ¶¶ 44-47, 69, 72-73. In seeking to set aside these contracts, Plaintiffs argued that the Bureau violated § 7(a)(2) of the ESA by failing to consult adequately with the FWS prior to renewing the Contracts. Id. ¶ 85.

11. FWS Issues Revised Biological Opinion

On December 15, 2008, the FWS issued a revised BiOp (the "2008 FWS Smelt OCAP BiOp"), which, contrary to the findings of the 2004 and 2005 FWS Smelt OCAP BiOps, concluded that the OCAP would jeopardize the delta smelt and adversely modify its critical habitat. NRDC v. Jewell, 749 F.3d at 781. The 2008 BiOp became the subject of numerous lawsuits. See generally San Luis & Delta Mendota Water Auth. v. Salazar, 1:09-cv-407-LJO-BAM. Plaintiffs in this matter intervened as defendants in the challenge to the 2008 FWS Smelt OCAP BiOp. See id.

12. NMFS Issues a Revised BiOp

On June 4, 2009, NMFS issued a revised BiOp ("2009 NMFS Salmonid OCAP BiOp"). See San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 988 (9th Cir. 2014) ("San Luis v. Locke"). Three months later, the previously assigned district judge entered final judgment in PCFFA, and closed the matter. PCFFA, 1:06-CV-0245-OWW-GSA, Doc. 458 (Judgment, Sept. 9, 2009).

13. District Court and Ninth Circuit Rulings on Plaintiffs' Third Amended Complaint

In rulings in late 2008 and 2009 in this matter, the previously assigned district judge held that Plaintiffs did not have standing to challenge renewal of the DMC Contracts and that Plaintiffs' challenge to the SRS Contracts failed as a matter of law because Federal Defendants lacked discretion to modify the SRS Contracts to benefit Plaintiffs' interests. Nat. Res. Def. Council v. Kempthorne, 2008 WL 5054115, at *22 (E.D. Cal. Nov. 19, 2008) ("NRDC v. Kempthorne"). A divided three-judge panel of the Ninth Circuit Court of Appeals affirmed. Nat.Res. Def. Council v. Salazar, 686 F.3d 1092 (9th Cir. 2012).

The Ninth Circuit subsequently voted to hear the case en banc, and the en banc panel reversed and remanded. NRDC v. Jewell, 749 F.3d 776. The en banc decision first found that the issuance of the 2008 FWS Smelt OCAP BiOp did not moot Plaintiffs' challenge to the Contracts:

Id. at 782.

On the issue of standing related to the DMC Contracts, the previously assigned district judge held that Plaintiffs could not establish that their injury is fairly traceable to the Bureau's alleged procedural violation because: (1) the DMC Contracts contain a shortage provision that absolves the government from liability for breaches that result from complying with its legal obligations; (2) this provision permits the Bureau to take necessary actions to meet its legal obligations under the ESA, so (3) the Bureau could not have negotiated any contractual terms that better protect the delta smelt, and, therefore, any injury to the delta smelt is not traceable to the contract renewal process. NRDC v. Kempthorne, 2008 WL 5054115, at *11-18.

The Ninth Circuit rejected this reasoning, finding instead that "to establish standing, a litigant who asserts a procedural violation under Section 7(a)(2) need only demonstrate that compliance with Section 7(a)(2) could protect his concrete interests." 749 F.3d at 783 (emphasis in original). The Ninth Circuit concluded that the consultation could have led to revisions that could have benefitted the delta smelt:

Id. at 783-84.

With regard to the SRS Contracts, the previously assigned district judge held that, although Plaintiffs have standing to assert procedural challenges to them, the Bureau was not required to consult under Section 7(a)(2) prior to renewing the SRS Contracts because the Bureau's discretion in renegotiating these contracts was "substantially constrained," in light of a line of cases, including Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 669 (2007), which stands for the proposition that there is no duty to consult for actions "that an agency is required by statute to undertake." Nat. Res. Def. Council v. Kempthorne, 621 F.Supp.2d 954, 1000 (E.D. Cal. 2009), decision clarified, 627 F.Supp.2d 1212 (E.D. Cal. 2009), on reconsideration, No. 1:05-CV-1207 OWW SMS, 2009 WL 2424569 (E.D. Cal. Aug. 6, 2009). In holding that the Bureau was not required to consult under Section 7(a)(2) prior to renewing the SRS Contracts, the previously assigned district judge focused on Article 9(a) of the original SRS Contracts, which provides in pertinent part:

Id. at 979 (emphasis omitted). This provision, according to the district court, "substantially constrained" the Bureau's discretion to negotiate new terms in renewing the contracts, thereby absolving the Bureau of the duty to consult under Home Builders. Id.

The Ninth Circuit rejected this reasoning:

NRDC v. Jewell, 749 F.3d at 785. The matter was reversed and remanded for further proceedings. Id.

14. Stay of this Case and Further FWS Consultation

On June 15, 2015, the Court stayed this litigation to allow Reclamation to reinitiate ESA-consultation on the contract renewals. Doc. 979. Thereafter, Reclamation requested FWS's concurrence that the impacts of these contract renewals on delta smelt were assessed in the 2008 FWS Smelt OCAP BiOp. 4AC ¶¶ 103, 105. FWS responded by sending the a letter of concurrence ("2015 LOC"), concluding that "all of the possible effects to delta smelt and its critical habitat by operating the CVP to deliver water under the SRS and DMC Contracts were addressed in the [2008 FWS Smelt OCAP BiOp]." Id. ¶ 106.

15. Plaintiffs Obtain Leave to Amend

On April 22, 2016, the Court granted Plaintiffs' motion for leave to file the 4SC, permitting the addition of three new claims. Doc. 1018. The Fourth Claim for Relief challenges the sufficiency of FWS's re-consultation, which resulted in the issuance of the 2015 LOC. No party objected to adding this claim, which is a natural extension of the existing litigation.

Plaintiffs' Fifth Claim alleges that Reclamation unlawfully failed to request re-initiation of consultation with NMFS on the impacts of SRS Contract renewals on the winter-run and spring-run Chinook. 4SC ¶¶ 183-188. Specifically, Plaintiffs allege that the 2009 NMFS Smelt OCAP BiOp constituted new information that revealed effects of the SRS Contracts that NMFS did not consider in consultation over the contracts. Id. ¶ 186. Plaintiffs also allege that massive mortality episodes impacting the 2014 and 2015 generations of winter-run and spring-run Chinook constituted independent new information that should have triggered re-consultation. Id. ¶ 187.

Plaintiffs' Sixth Claim for relief alleges Reclamation and the SRS Contractors illegally caused the take of winter-run and spring-run Chinook during 2014 and 2015 because Reclamation made excessive deliveries to the SRS Contractors that depleted the cold water reserves in Shasta Reservoir, causing temperature increases fatal to the 2014 and 2015 "brood years" of winter-run and spring-run Chinook. 4SC ¶¶ 189-193.

Federal Defendants argued that the two new salmonid claims (Fifth and Sixth Claims for Relief) are barred by res judicata. Doc. 1007 at 16-17. This argument was rejected because the central governmental conduct that gave rise to the PCFFA litigation was the issuance of the 2004 NMFS Salmonid OCAP BiOp. Doc. 1018 at 19. Encompassed within the scope of the PCFFA lawsuit was a challenge to Reclamation's execution of the renewal Contracts based upon the 2004 NMFS Salmonid OCAP BiOp. See PCFFA FAC ¶¶ 2, 49, 74, 112. However, the proposed Fifth and Sixth Causes of action arise from separate governmental conduct, namely, the failure to re-initiate consultation and the continued delivery of water to SRS Contractors despite alleged take of listed salmonids. Doc. 1018 at 19.

The SRS Contractors argued that the applicable six-year statute of limitations bars Plaintiffs' claim that NMFS was required to reinitiate consultation upon the issuance of the 2009 NMFS Salmonid OCAP BiOp because that document was adopted more than six years ago. Doc. 1009 at 11. The Court deferred addressing Plaintiffs' argument that the statute of limitations "does not bar a challenge to an `ongoing agency action,' such as the SRS Contracts," Doc. 1013 at 17, and Plaintiffs' related argument that several more recent actions constitute "amendments" to the 2009 NMFS Salmonid OCAP BiOp, id. at 14, as beyond the scope of their motion. Doc. 1018 at 20. The Court did hold that because the 4SC alleges sufficiently that temperature control events in 2014 and 2015 triggered the requirement for re-initiation, see 4SC ¶¶ 113, 192, the Sixth Claim for Relief is not barred in any general sense by the statute of limitations. Id. at 20-21.

The Court rejected the SRS Contractors' and Federal Defendants' argument that Plaintiffs' claims that NMFS was required to re-initiate consultation based upon 2014 and 2015 temperature control events are moot because Reclamation has already reinitiated consultation regarding 2014/2015 drought operations. Doc. 1007 at 21-22; Doc. 1009 at 11.

Doc. 1018 at 21.

Finally, the Court rejected Federal Defendants' argument that the Sixth Claim for Relief, alleging take in violation of ESA § 9, is futile because it is based purely on allegations of past violations. Id. at 21-22; Doc. 1007 at 20-21. Because the 4SC asks the Court in Prayer "J" to "[e]njoin the Secretary from continuing to make releases of water from Shasta Reservoir, and the SRS Contractors from diverting such water, to satisfy the terms of the SRS Contracts where such releases and diversions will cause the unauthorized take of winter-run and spring-run Chinook," 4SC at 66-67, the Court concluded that, even if the ESA's citizen suit provision precludes claims based upon purely past violations, the Sixth Claim for Relief is "forward looking" and therefore not futile. Doc. 1018 at 22.

IV. STANDARD OF DECISION

A. Motion to Dismiss for Lack of Jurisdiction Pursuant to Fed. R. Civ. P. 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of an action for "lack of subject-matter jurisdiction." Faced with a Rule 12(b)(1) motion, a plaintiff bears the burden of proving the existence of the court's subject matter jurisdiction. Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996). A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears. Gen. Atomic Co. v. United Nuclear Corp., 655 F.2d 968, 968-69 (9th Cir. 1981).

A challenge to subject matter jurisdiction may be facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). As explained in Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1038 (9th Cir. 2004):

In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment. Savage v. Glendale Union High School, 343 F.3d 1036, 1039 n. 2 (9th Cir. 2003); McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). "If the challenge to jurisdiction is a facial attack, i.e., the defendant contends that the allegations of jurisdiction contained in the complaint are insufficient on their face to demonstrate the existence of jurisdiction, the plaintiff is entitled to safeguards similar to those applicable when a Rule 12(b)(6) motion is made." Cervantez v. Sullivan, 719 F.Supp. 899, 903 (E.D. Cal. 1989), rev'd on other grounds, 963 F.2d 229 (9th Cir. 1992). "The factual allegations of the complaint are presumed to be true, and the motion is granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction." Id.; see also Cassirer v. Kingdom of Spain, 580 F.3d 1048, 1052 n. 2 (9th Cir. 2009), rev'd on other grounds en banc, 616 F.3d 1019 (9th Cir. 2010) (applying Ashcroft v. Iqbal, 556 U.S. 662 (2009), to a facial motion to dismiss for lack of subject matter jurisdiction).

A Rule 12(b)(1) motion can be made as a speaking motion—or factual attack—when the defendant submits evidence challenging the jurisdiction along with its motion to dismiss. Thornhill Publ'g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979); see Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039-40 & n. 2 (9th Cir. 2003). A proper speaking motion allows the court to consider evidence outside the complaint without converting the motion into a summary judgment motion. See Safe Air for Everyone, 373 F.3d at 1039. "Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Savage, 343 F.3d at 1039-40, n. 2. In a speaking motion, "[t]he court need not presume the truthfulness of the plaintiff's allegations." Safe Air, 373 F.3d at 1039. Few procedural limitations exist in a factual challenge to a complaint's jurisdictional allegations. St. Clair v. City of Chico, 880 F.2d 199, 200-202 (9th Cir. 1989). The court may permit discovery before allowing the plaintiff to demonstrate the requisite jurisdictional facts. Id. A court may hear evidence and make findings of fact necessary to rule on the subject matter jurisdiction question prior to trial, if the jurisdictional facts are separable from the merits. Rosales v. United States, 824 F.2d 799, 802-803 (9th Cir. 1987). However, if the jurisdictional issue and substantive claims are so intertwined that resolution of the jurisdictional question is dependent on factual issues going to the merits, the court should dismiss for lack of jurisdiction only if the material facts are not in dispute and the moving party is entitled to prevail as a matter of law. Otherwise, the intertwined facts must be resolved by the trier of fact. Id.

B. Motion to Dismiss for Failure to State a Claim Pursuant to Fed. R. Civ. P. 12(b)(6)

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is a challenge to the sufficiency of the allegations set forth in the complaint. A 12(b)(6) dismissal is proper where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balisteri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In considering a motion to dismiss for failure to state a claim, the court generally accepts as true the allegations in the complaint, construes the pleading in the light most favorable to the party opposing the motion, and resolves all doubts in the pleader's favor. Lazy Y. Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).

To survive a 12(b)(6) motion to dismiss, the plaintiffs must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the Plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a Plaintiff's obligation to provide the `grounds' of his `entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal citations omitted). Thus, "bare assertions . . . amount[ing] to nothing more than a `formulaic recitation of the elements' . . . are not entitled to be assumed true." Iqbal, 556 U.S. at 681. "[T]o be entitled to the presumption of truth, allegations in a complaint . . . may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively." Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). In practice, "a complaint . . . must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Twombly, 550 U.S. at 562; see also Starr, 652 F.3d at 1216 ("the factual allegations that are taken as true must plausibly suggest an entitlement to relief"). To the extent that the pleadings can be cured by the allegation of additional facts, a plaintiff should be afforded leave to amend. Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 247 (9th Cir. 1990) (citations omitted).

V. DISCUSSION

A. First & Third Claims for Relief

The DMC Contractors and SRS Contractors move to dismiss the First and Third Claims for Relief. DMC MTD; SRS MTD. The previously assigned district judge entered final judgment on the First and Third Claims for Relief and no appeal was taken. Doc. 873; NRDC v. Jewell, 749 F.3d 776. Plaintiffs admit that they include these claims in the 4SC for informational purposes only. Pltf. Opp. at 35. It is not unreasonable to leave claims on which judgment has already entered in an operative complaint for this reason, particularly given the exceedingly complex procedural history of this case. The Court therefore DENIES the motions to dismiss the First and Third Claims for Relief.

B. Second Claim for Relief

1. Mootness

The DMC Contractors and SRS Contractors move to dismiss the Second Claim for Relief as moot. DMC MTD at 6-7; SRS MTD at 4-7. An issue is moot "when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." City of Erie v. Pap's A.M., 529 U.S. 277, 287 (2000). "The underlying concern is that, when the challenged conduct ceases such that there is no reasonable expectation that the wrong will be repeated, then it becomes impossible for the court to grant any effectual relief whatever to the prevailing party." Id. (internal citations and quotations omitted). If the parties cannot obtain any effective relief, any opinion about the legality of a challenged action is impermissibly advisory. Id. "Mootness has been described as the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)." Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n. 22 (1997) (internal citation and quotation omitted). "[A]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed." Id. at 67. "The party asserting mootness has a heavy burden to establish that there is no effective relief remaining for a court to provide." In re Palmdale Hills Property, LLC, 654 F.3d 868, 874 (9th Cir. 2011). Mootness is evaluated on a claim-by-claim basis. San Luis & Delta-Mendota Water Auth. v. Jewell, 52 F.Supp.3d 1020, 1045 (E.D. Cal. 2014).

Plaintiffs' Second Claim for Relief alleges that the Bureau acted unlawfully because it relied upon what it knew or should have known to be an inadequate consultation with FWS. 4SC ¶ 172. More specifically, Plaintiffs allege that the 2005 FWS Smelt OCAP BiOp incorrectly concluded that the 2004 OCAP would not jeopardize the delta smelt or adversely modify its critical habitat. Id. at ¶ 173. The Second Claim for Relief further alleges that "notwithstanding the 2005 FWS Smelt OCAP BiOp, by implementing the 2004 OCAP and related actions, the Bureau has failed and is failing to perform its affirmative obligation to insure that its actions will not jeopardize the continued existence of the delta smelt, in violation of ESA § 7(a)(2), 16 U.S.C. § 1536(a)(2)." Id. Relatedly, and "for the same reasons," the 4SC alleges that "the Bureau also has failed and is failing to insure that its actions are not likely to adversely modify the designated critical habitat of the delta smelt." Id. at ¶ 174. These allegations, which pertain to Reclamation's reliance on the 2005 FWS Smelt OCAP BiOp, are therefore moot in light of the fact that FWS issued the 2008 FWS Smelt OCAP BiOp, which superseded and in large part rejected the 2005 FWS Smelt OCAP BiOp. Plaintiffs do not appear to dispute this. See Pltf. Opp. 36-37.

However, the Second Claim for Relief does not stop there. In paragraph 175, Plaintiffs allege:

Plaintiffs also point to earlier allegations in the 4SC that are incorporated by reference into the Second Claim for Relief. 4SC ¶ 171. For example, paragraph 15 alleges that Reclamation unlawfully limited the scope of its 2015 reinitiated consultation with FWS by "requesting only that FWS concur with [Reclamation's] assessment that the effects of the contracts were analyzed in the 2008 FWS [Smelt] OCAP BiOp," even though the Ninth Circuit had ruled that the 2008 FWS Smelt OCAP BiOp "merely assesses the general effects of the [system-wide OCAP]" and did not address Reclamation's "decision to renew the specific contracts" at issue. The 4SC further alleges that Reclamation undermined its 2015 FWS consultation by representing to FWS "that [Reclamation] lacked authority to change the terms in the SRS contracts for the benefit of the delta smelt," despite the Ninth Circuit's directly contrary ruling. 4SC ¶¶15-16, 103-05 (citing NRDC v. Jewell, 749 F.3d at 785). In light of these allegations, Plaintiffs argue they have properly stated a claim that "Reclamation has continuously failed to carry out its affirmative duty to ensure that the SRS and DMC contracts do not jeopardize the delta smelt, or that the 2015 consultation was flawed and, as a result, Reclamation `has failed and is failing to comply' with its obligation to engage in a valid Section 7 consultation on the contracts' effects delta smelt and its critical habitat." Pltf. Opp. at 37 (citing 4SC ¶ 175). These allegations, which assert wrongs that have not been corrected, are not moot.

2. 60-Day Notice

To the extent the allegations in the Second Claim for Relief assert claims regarding the Bureau's 2015 re-initiated consultation with FWS, the DMC Contractors argue that Plaintiffs failed to provide the 60-day notice letter required of any claim brought under the citizen suit provision of the ESA. DMC MTD at 2-4.

The ESA provides that "no action may be commenced . . . prior to sixty days after written notice of the violation has been given to the Secretary, and to any alleged violator of any such provision or regulation." 16 U.S.C. § 1540(g)(2)(A). "The notice requirement provides agencies with `an opportunity to review their actions and take corrective measures if warranted.'" Alliance for the Wild Rockies v. U.S. Dep't of Agric., 772 F.3d 592, 601 (9th Cir. 2014) (quoting Sw. Ctr. for Biological Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515, 520 (9th Cir. 1998)). Thus, to satisfy the notice requirement, a plaintiff must "provide sufficient information of a violation so that [the defendant] could identify and attempt to abate the violation." Sw. Ctr. for Biological Diversity, 143 F.3d at 522. The requirement is a "mandatory condition [] precedent to commencing suit" under the ESA. Alliance, 772 F.3d at 601. "A failure to strictly comply with the notice requirement acts as an absolute bar to bringing suit under the ESA." Sw. Ctr. for Biological Diversity, 143 F.3d at 520. A district court may not disregard such a notice requirement at its discretion. See Hallstrom, 493 U.S. at 31.

Here, Plaintiffs' 60-day notice letter dates to February 7, 2008. Doc. 1020-1 ("2008 Notice Letter"). On the one hand, the DMC Contractors are correct that the 2008 Notice Letter focused on the allegation that the Bureau was violating its substantive duty under section 7(a)(2) to avoid jeopardy to the delta smelt or adverse modification of the smelt's habitat. For example, the 2008 Notice Letter states:

Moreover, the 2008 Notice Letter warned that continuing to perform on the identified contracts and/or renegotiate contract terms would constitute a violation of section 7(a)(2) unless and until the "completion of a new, lawful OCAP biological opinion." [Id. at 10.]

On the other hand, the 2008 Notice Letter does broadly complain of an "ongoing violation" of section 7(a)(2), stating, for example:

Id. at 7 (emphasis added).

In support of their position that this 2008 notice of an "ongoing violation" is sufficient to encompass a challenge to the sufficiency of the Bureau's 2015 re-initiated consultation with FWS, Plaintiffs cite Water Keeper Alliance v. U.S. Dep't of Defense, 271 F.3d 21 (1st Cir. 2001). In that case, the plaintiffs sent a 60-day notice of intent to sue regarding the Navy's plan to engage in training exercises on the island of Vieques that had potential to harm ESA-listed species. Specifically, plaintiffs' notice complained that the Navy was relying on BAs and BiOps from the early 1980s, despite new scientific information about impacts to those species plaintiffs alleged required the Navy to reinitiate consultation. Water Keeper Alliance v. U.S. Dep't of Defense, 152 F.Supp.2d 163, 172-74 (D. P.R. 2001). After plaintiffs sent the notice, the Navy consulted with FWS regarding interim exercises it planned to conduct. Id. at 174. Plaintiffs filed suit alleging that the Navy's consultation with FWS regarding the interim exercises was flawed because the Navy presented a "consultation package" to FWS, rather than a biological assessment. Water Keeper Alliance, 271 F.3d at 28, 30.

The district court concluded that plaintiffs' 60-day notice was inadequate because it "did not (indeed could not have, since it predated it) reference the . . . biological opinion[] which was the culmination of the formal consultation for the interim exercises, as the basis for its grievance." Id. at 29. The First Circuit reversed, explaining that although the letter did not reference the specific consultation plaintiffs challenged, it "d[id] take issue with the fact that the Navy has been conducting military activities on Vieques for some years without the benefit of a [BA] incorporating new scientific evidence." Id. at 30. The court reasoned that, "to say that the Navy was not on notice that Water Keeper would object to the failure to prepare a [BA] for its interim activities, when the Notice makes it clear that Water Keeper intended to challenge an ongoing delinquency in the preparation of a [BA], would be setting the bar for adequacy of notice too high." Id. at 30.

Plaintiffs interpret Water Keeper to permit suit in this case because the 2008 Notice Letter "makes it clear that [Plaintiffs] intended to challenge an ongoing delinquency" to properly consult on the contracts and ensure the contracts do not cause jeopardy. Pltf. Opp. at 40. The DMC Contractors argue for a more narrow interpretation of Water Keeper, emphasizing that there was a strong common thread between the 60-day notice in Water Keeper and the complaint eventually brought in that case. Specifically, because the Water Keeper notice complained that the Navy never prepared a BA regarding ongoing, long-term training activities, the Navy was on notice that it was violating the ESA by conducting interim training activities without first preparing a BA. DMC Reply at 9.

Here, there is no such common thread. The claim expressly noticed in the 2008 Notice Letter concerned reliance on a flawed and superseded BiOp. This is factually and legally distinct from Plaintiffs' concerns regarding the sufficiency of the Bureau's 2015 re-initiated consultation with FWS. Id. The 4SC alleges that the 2015 re-initiated consultation was flawed because the Bureau

4SC ¶ 15. Neither factual allegation is even alluded to in the 2008 Notice Letter.

The Court cannot find that the 2008 Notice Letter "provide[s] sufficient information of a violation so that [the defendant] could identify and attempt to abate the violation." Unlike the notice letter in Water Keeper, the 2008 Notice Letter provides no information that could possibly help the Bureau understand what was wrong with its 2015 re-initiated consultation. Therefore, the Court concludes that the 2008 Notice Letter does not provide adequate pre-suit notice of a claim based upon the 2015 re-initiated consultation.

One additional argument merits some discussion. Plaintiffs cite Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1073 (9th Cir. 1996), which held that the test for an ESA notice is whether it "afford[s] the opportunity to rectify the asserted ESA violations." Plaintiffs suggest that any defects in the 2008 Notice Letter should be excused because "recent events demonstrate that Reclamation had additional opportunities to take corrective measures." Pltf. Opp. at 39. As an example, Plaintiffs point to allegations in the 4SC concerning correspondence between Reclamation, FWS, and Plaintiffs regarding Reclamation's continued assertion that it lacked discretion to make any species-protective changes to the SRS contracts, and Plaintiffs' continued assertion that this position contradicted the ruling in NRDC v. Jewell, 749 F.3d 776. Plaintiffs maintain that this correspondence demonstrates that "Reclamation remained on notice of its ongoing failure to properly consult on the contracts and protect the delta smelt and had sufficient `opportunities to rectify' its violation." Pltf. Opp. at 39 (citing Marbled Murrelet, 83 F.3d at 1073). Plaintiffs essentially argue that actual notice can supplant the formal notice required by 16 U.S.C. § 1540(g)(2)(A)(i).

Marbled Murrelet does not support this proposition. Marbled Murrelet held that reference to Section 7 in only one part of a five-page ESA notice letter did not preclude suit under Section 7 because "the letter as a whole provided notice sufficient to afford the opportunity to rectify the asserted ESA violations." 83 F.3d at 1073. Nothing in Marbled Murrelet suggests that the formal notice requirement may be supplanted by subsequent events or communications that may otherwise provide notice of the violation but do not satisfy the formal requirements of 16 U.S.C. § 1540(g)(2)(A)(i) (e.g., notice to the Secretary of the Interior). To so hold would render the formal requirements meaningless.

The DMC Contractors' and SRS Contractors' motions to dismiss the Second Claim for Relief are GRANTED on the ground that this Court lacks subject matter jurisdiction over the Second Claim for relief because certain allegations in the claim are moot and because Plaintiffs have failed to comply with the ESA's 60-day notice requirement as to any non-moot allegations. Because amendment cannot cure these defects, leave to amend is not appropriate at this time.3

C. Fifth Claim for Relief

Plaintiffs' Fifth Claim alleges that Reclamation unlawfully failed to request re-initiation of consultation with NMFS on the impacts of SRS Contract "implementation" on the winter-run and spring-run Chinook. 4SC ¶¶ 183-188. Specifically, Plaintiffs allege that the 2009 NMFS Salmonid OCAP BiOp constituted new information that revealed effects of the SRS Contracts that NMFS did not consider in consultation over the contracts. Id. ¶ 186. Plaintiffs also allege that massive mortality episodes impacting the 2014 and 2015 generations of winter-run and spring-run Chinook constituted independent new information that should have triggered re-consultation. Id. ¶ 187.

An agency is required to reinitiate consultation where

50 C.F.R. § 402.16 (emphasis added). The duty to reinitiate consultation lies with both the action agency and the consultation agency. See id.; see also Envtl. Prot. Info. Ctr. v. Simpson Timber Co., 255 F.3d 1073, 1076 (9th Cir. 2001) ("EPIC").

Plaintiffs allege that Reclamation has "discretionary federal involvement and control over the implementation of the SRS Contracts." 4SC ¶ 186. Federal Defendants dispute this, arguing that "while Reclamation retains some limited discretionary control or involvement in implementing the terms of the SRS Contracts, that level of involvement is not sufficient to trigger re-initiation because in the end, Reclamation ultimately cannot unilaterally alter the existing terms of the contracts in a manner that will inure to the benefit of [the] species." FD MTD at 9.

Plaintiffs argue that the Ninth Circuit's decision in NRDC v. Jewell controls on the issue of discretionary involvement and control. The relevant portion of that decision addressed Plaintiffs' claim, contained in the TAC, that Reclamation violated Section 7(a)(2) by failing to consult adequately with FWS over impacts to delta smelt prior to renewing the SRS Contracts. See 749 F.3d at 781. The previously assigned district judge ruled that Reclamation was not required to comply with Section 7 in connection with renewal of the SRS contracts because the terms of the original SRS Contracts "substantially constrained" Reclamation's discretion to modify the terms during the renewal process. Id. at 784. The Ninth Circuit reversed, holding that the appropriate question is not whether the agency's discretion is "substantially constrained" but rather whether the agency retains "some discretion" to take action for the benefit of a protected species. Id. Applying the "some discretion" standard, the Ninth Circuit reasoned:

Id. at 784-85 (italics in original; underlining added). NRDC v. Jewell unambiguously held that the Section 7(a)(2) consultation requirement applies to the renewal of the SRS Contracts.

NRDC v. Jewell's holding is directly relevant to the Fourth Claim for Relief in the 4SC, which challenges the sufficiency of the consultation between Reclamation and FWS as to impacts to delta smelt related to renewal of the SRS Contracts. Although the SRS Contracts were renewed in 2004 and 2005, the Fourth Claim for Relief, based upon Reclamation's failure to consult over impacts of renewal upon delta smelt, was first raised in the TAC filed in 2008 and has been preserved throughout the present case.

In contrast, no party has identified a previously filed claim that preserves Plaintiffs' right to challenge the 2004 and 2005 renewals of the SRS Contracts based upon how those renewals impacted salmonids.4 Plaintiffs now attempt to bring a claim demanding re-initiation of consultation regarding the SRS Contracts. Before analyzing the motions to dismiss this Fifth Claim for Relief, it is important to define the exact nature and scope of the claim. As discussed, re-initiation is only required where "discretionary Federal involvement or control over the action has been retained or is authorized by law." 50 C.F.R. § 402.16 (emphasis added). The 4SC indicates that Reclamation has "discretionary federal involvement and control over the implementation of the SRS Contracts." 4SC ¶ 186 (emphasis added). It would therefore follow that Plaintiffs seek re-initiation of consultation regarding impacts of implementation of the SRS Contracts on salmonids, not regarding the impacts of renewal/adoption of those contracts on salmonids. This position is reinforced in certain portions of Plaintiffs' opposition. See, e.g., Pltf. Opp. at 10:1-3 ("[T]he 4SC is rife with allegation that Reclamation retains ongoing discretionary involvement with and control over the implementation of the SRS contracts."); id. at 10:22-23 ("Federal Defendants' own proffered documentation further demonstrates Reclamation's ongoing discretion over the SRS contracts' implementation.").

Having identified that the Fifth Claim for Relief alleges that Reclamation has discretionary involvement or control over implementation of the SRS Contracts, it is less clear what consultation Plaintiffs seek to force Federal Defendants to re-initiate. The OCAP consultation (which culminated in the 2009 NMFS Salmonid OCAP BiOp) arguably addresses impacts of CVP Contract (including SRS Contract) implementation. See Declaration of Meredith E. Nikkel, ("Nikkel Decl."), Ex. A at 728 (Doc. 1031-5) (excerpt from 2009 NMFS Salmonid OCAP BiOp stating that incidental take statement issued in connection with that consultation "is applicable to all activities related to the long-term operations of the CVP and SWP . . . including . . . administration of water contracts. . . .").5 Yet, nothing in the 4SC or Plaintiffs' filings indicates Plaintiffs seek re-initiation of the OCAP consultation process. Rather, the 4SC alleges that the Bureau has failed to reinitiate consultation "on the SRS contracts." 4SC ¶ 186. Plaintiffs' opposition brief likewise suggests they seek re-initiation of consultation over the renewal of the SRS contracts. For example, Plaintiffs point to Reclamation's re-initiation of consultation regarding impacts of adoption of the SRS contracts on delta smelt as an example of why Reclamation possesses authority to "take the same action" (i.e., re-initiate consultation on adoption of the SRS Contracts) "with regard to . . . effects on listed Chinook." Pltf. Opp. 9 (emphasis added).

In light of the above, the only logical reading of the Fifth Claim for Relief is that Plaintiffs allege Reclamation retains discretionary involvement or control over SRS Contract implementation and that the new information alleged in the complaint regarding impacts of SRS Contract implementation on salmonids requires re-initiation of the consultation regarding SRS Contract adoption. There is a significant hurdle associated with such an allegation, rooted in a line of authority highlighted by Federal Defendants.

While acknowledging the holding of NRDC v. Jewell, Federal Defendants argue that once executed, "the terms of the SRS Contracts are set and Reclamation administers the contracts as executed." FD MTD at 10. Therefore, Federal Defendants' argument continues: "Reclamation does not retain the authority to alter the contract terms to inure to the benefit of listed species and thus, re-initiation on the execution of the SRS contracts has not been triggered." Id.

Federal Defendants' position finds support in EPIC, which concerned a lawsuit brought against FWS for its alleged failure to re-initiate consultation over the impact an ITP issued to a Simpson Timber for the northern spotted owl might have on two other species (the marbled murrelet and the coho salmon) listed after the issuance of the ITP. FWS retained some ongoing authority over the ITP:

Id. at 1078. In evaluating whether FWS retained sufficient discretionary involvement or control, the Ninth Circuit first confirmed that the appropriate standard comes from Sierra Club v. Babbitt, 65 F.3d 1502 (9th Cir. 1995). EPIC, 255 F.3d at 1079. As EPIC summarized:

EPIC, 255 F.3d at 1079-80 (emphasis added).

The Ninth Circuit rejected EPIC's contrary contention that Pacific Rivers Council v. Thomas, 30 F.3d 1050 (9th Cir. 1994), controlled. EPIC, 255 F.3d at 1080. Pacific Rivers held that the Forest Service was obligated to consult with NMFS upon its listing of the Snake River Chinook salmon as threatened because the Forest Service's Land Resource Management Plans ("LRMPs"), which establish fifteen-year plans for government lands, "have an ongoing and long-lasting effect even after adoption" and therefore "represent ongoing agency action." 30 F.3d at 1053. The Ninth Circuit reasoned that Simpson Timber's ITP was not analogous to the LRMPs at issue in Pacific Rivers:

EPIC, 255 F.3d at 1080. The Ninth Circuit then examined the ITP issued to Simpson Timber to determine whether it reserved to FWS "discretionary involvement and control to such an extent that it must reconsult on the impact of Simpson's spotted owl permit on marbled murrelet and coho salmon." Id. at 1080. Ultimately, the Ninth Circuit concluded that neither the ITP nor any permit-related documents reserved to FWS such discretionary involvement or control. Id. at 1080-82.

Critically for purposes of this case, the EPIC court next addressed the applicability of Natural Resources Defense Council v. Houston, 146 F.3d 1118, 1126 (9th Cir. 1998). In Houston, Reclamation was required to consult with NMFS because Reclamation's renewal of certain CVP water contracts, which were statutorily mandated to be negotiated on "mutually agreeable" terms with water users, involved at least "some" agency discretion to set the contract terms because Reclamation had discretionary power to decrease the total supply of water for sale and thereby decrease the amount of water granted in the renewed contracts. Id. The Ninth Circuit applied similar reasoning in NRDC v. Jewell to the SRS Contract renewal process.

In EPIC, however, the Ninth Circuit emphasized that Houston should not be read to "suggest . . . that once the renewed contracts were executed, the agency had continuing discretion to amend them at any time to address the needs of endangered or threatened species." 255 F.3d at 1082. Rather, the terms of the contract or agreement must be examined to determine whether and to what extent the agency retained discretion to impose measures to protect the species in question. See id. (finding terms of ITP permit issued regarding impacts to spotted owl did not give FWS the power to implement measures to benefit species other than the spotted owl); see also Crowman Corp. v. United States, 51 Fed. Cl. 654, 656 (2002) (finding contract term permitting agency to adjust the time period for contract operations in the event that an "act of Government" disrupted contract operations reserved to the agency the discretionary authority to re-initiate consultation to evaluate impact of contracted operations on recently-listed species").

Contrary to Plaintiffs' suggestion, Pltf. Opp. at 8, in light of EPIC, the Ninth Circuit's holding in NRDC v. Jewell is not law of the case with respect to Plaintiffs' Fifth Claim for relief. In other words, NRDC v. Jewell's holding that Reclamation has discretion in the renewal process to alter the timing of water distribution and the pricing scheme related to contracted-for water does not necessarily mean Reclamation retained similar discretion in the executed contracts (or otherwise possess similar discretion pursuant to law) that would permit revisions to executed contracts.

In an effort to demonstrate that EPIC does not control here, Plaintiffs argue that because a valid consultation is a prerequisite for a final agency action, the SRS Contracts are not yet final. Pltf. Opp. at 9-10 n. 4. But this begs the question of whether the SRS Contracts are in fact final. The Fourth Claim for Relief alleges, but has not yet demonstrated, that the consultation undertaken regarding the impacts of SRS Contract renewal on delta smelt is invalid, nor have any of the SRS Contracts been set aside. While NRDC v. Jewell stands for the proposition that Reclamation retains sufficient discretion over SRS Contract renewal to require consultation over impacts to listed species during the renewal process, the 4SC acknowledges that some form of consultation has taken place. See 4SC ¶ 16. Therefore, at least for purposes of the present analysis of the Fifth Claim for Relief, the SRS Contracts are still final, and EPIC controls analysis of this claim, which challenges implementation of executed contracts.6

Houston, itself cited by Plaintiffs, see Pltf. Opp. at 9-10 n. 4, is not to the contrary. There, the Ninth Circuit was addressing one party's argument that, even if the Bureau violated the procedural provisions of the ESA by executing water contracts before the completion of appropriate ESA consultation, any such procedural violation was rendered moot when consultation was completed. Houston, 146 F.3d at 1128. The Ninth Circuit disagreed, indicating that remedies were still available, noting that "[t]he failure to respect the process mandated by law cannot be corrected with post-hoc assessments of a done deal." Id. at 1129. Plaintiffs take this quote out of context in an effort to argue that the SRS Contracts should not be considered final. Houston stands for the proposition that remedies (such as contract rescission) may be available in a challenge to a consultation over contract execution and therefore that such a challenge is not moot upon completion of consultation. Id. Houston does not stand for the proposition that such remedies should be presumed applicable prior to adjudication of the merits of a claim.

As Federal Defendants point out, the SRS Contracts contain limited provisions providing for amendment that appear inapplicable under the present circumstances. For example, the SRS Contracts may be amended to conform to a final judgment issued in a general stream adjudication of the Sacramento river system or if the California State Water Resources Control Board or a court of competent jurisdiction modifies the terms and conditions of water rights to either party. Supplemental Administrative Record ("SAR"), 2695-2731 (Glenn-Colusa Irrigation District ("GCID") Contract, No. 14-06-200-855A-R-1), at 2714-15.7

Plaintiffs do not attempt to point to contractual language to establish that Reclamation retained discretion to act on behalf of salmonids. Rather, they focus on Reclamation's conduct, which they assert demonstrates the existence of discretion. See, e.g., 4SC ¶¶ 58-59 (Reclamation sought changes to flow requirements and export limits); id. ¶73 (Reclamation must conduct temperature modeling to determine quantity and timing of releases to SRS Contractors); id. (Reclamation schedules releases to SRS Contractors to maintain adequate temperatures for salmon spawning); id. ¶75 (Reclamation ignored NMFS's warnings and made excessive releases to SRS Contractors); id. ¶76 (Reclamation issued temperature management plan for Shasta releases to SRS Contractors); id. ¶153 (Reclamation "makes real-time determinations regarding the timing and volume of releases").

Even assuming all of these examples do demonstrate the actual exercise of discretion,8 relying on them may be putting the cart before the horse. In EPIC, the Ninth Circuit did not look to extrinsic evidence to determine whether the agency retained discretion in the ITP to act on behalf of the recently listed marbled murrelet. 255 F.3d at 1081-82. The court focused only on the relevant contractual terms. See id. at 1082.

If Plaintiffs' argument is treated as a pure question of contract interpretation, the consideration of extrinsic evidence is limited by contract-law principles. As summarized in Tehama-Colusa Canal Auth. v. U.S. Dep't of Interior:

Additional contract interpretation rules apply:

819 F.Supp.2d 956, 987-88 (E.D. Cal. 2011) (certain internal citations and all footnotes omitted).

It is not clear how any of the offered conduct-based examples of the exercise of discretion in practice are relevant without some reference to a contract provision that is at least ambiguous as to the existence of discretion to act on behalf of salmonids during contract implementation. Accordingly, and because this issue was not addressed by any party's briefs on the pending motions, the Court will permit supplemental briefing. Specifically, Plaintiffs shall submit a supplemental brief, no longer than ten pages in length, addressing the following questions:

(1) In light of the Court's ruling that EPIC controls as to the Fifth Claim for Relief and necessitates an examination of SRS Contracts themselves to determine whether Reclamation retains discretion under the Contracts to act on behalf of salmonid species, are there provisions in the SRS Contracts that support Plaintiffs' allegation that Reclamation retains such discretion?

(2) Relatedly, on what authority may the Court consider Plaintiffs' allegations that Reclamation actually has exercised discretion over contract implementation in practice?

Given that resolution of these issues may be dispositive, the Court declines at this time to address the other issues raised in connection with the Fifth Claim for Relief.

D. Sixth Claim for Relief

Plaintiffs' Proposed Sixth Claim for relief alleges Reclamation and the SRS Contractors illegally caused the take of winter-run and spring-run Chinook during 2014 and 2015 because Reclamation made excessive deliveries to the SRS Contractors, who in turn diverted the delivered water, which in combination depleted the cold water reserves in Shasta Reservoir, causing temperature increases fatal to the 2014 and 2015 "brood years" of winter-run and spring-run Chinook. 4SC ¶¶ 189-193.

1. Sufficiency of Factual Allegations against SRS Contractors

The SRS Contractors argue that the Sixth Claim for Relief does not contain sufficient factual allegations regarding an act or omission by the SRS Contractors that could plausibly state a claim for relief. SRS MTD at 15-17.

To prevail on a Section 9 claim, a plaintiff must prove by a preponderance of the evidence that a "reasonably certain threat of imminent harm to a protected species" exists. Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1066 (9th Cir. 1996). Thus, Plaintiffs have the burden of proving that the deliveries/diversions will harm one of the five listed fish species identified in the complaint "by killing or injuring it." Protect Our Water v. Flowers, 377 F.Supp.2d 844, 880 (E.D. Cal. 2004) (citing Defs. of Wildlife v. Bernal, 204 F.3d 920, 925 (9th Cir. 2000)). Habitat modification may constitute "harm" to a listed species, but only if it "actually kills or injures wildlife." Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 691 (1995) (quoting and affirming the definition in 50 C.F.R. § 17.3). A "potential" injury to the species is "inadequate to establish Section 9 liability." Swinomish Indian Tribal Cmty. v. Skagit Cnty. Dike Dist. No. 22, 618 F.Supp.2d 1262, 1270 (W.D. Wash. 2008) (quoting Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 784 (9th Cir. 1995)). Take can result from direct harm to a single, individual animal. See, e.g., United States v. Nuesca, 945 F.2d 254 (9th Cir. 1991) (affirming criminal convictions under the ESA for the direct take by hunting of a single Hawaiian monk seal and two green sea turtles). In contrast, "the balance of the authority suggests that a population level effect is necessary for harm resulting from habitat modification to be considered a take." Coal. for a Sustainable Delta, 725 F. Supp. 2d at 1170 (collecting cases).

The SRS Contractors are correct that some sections of the 4SC focus on the Bureau's conduct regarding temperature control. For example, paragraph 73 alleges:

(emphasis added). However, the 4SC does contain allegations that tie the SRS Contractors to the alleged take. Specifically, paragraph 21 alleges:

The Sixth Claim for Relief repeats a substantially identical allegation in paragraph 192:

While the SRS Contractors are correct that "but for" causation is the relevant standard, see Sweet Home, 515 U.S. at 700, n. 13 ("but for" causation required for a takings claim), it is reasonable to infer from these allegations that the SRS Contractors' diversions were the actual physical mechanism by which water was removed from the watershed, that Reclamations would not have released the same volume of water from upstream reservoirs were it not for the SRS Contractors' planned downstream diversions, and therefore that the SRS Contractors' diversions were a "but for" cause of the resulting loss of temperature control that is described in detail in the 4SC. The SRS Contractors' assertion that the 4SC does not allege any "action or omission" by the SRS Contractors ignores the fact that "diversion" is an "action." While straightforward, the allegations against the SRS Contractors are not conclusory and certainly put the SRS Contractors on notice of how they are alleged to have acted unlawfully. This is sufficient for pleading purposes. The SRS Contractors' motion to dismiss on this ground is DENIED.

2. Past Conduct

The SRS Contractors next argue that the Sixth Claim for Relief must be dismissed because Plaintiffs fail to allege any ongoing or future harm. Plaintiffs' Section 9 claim is brought pursuant to the ESA's citizen suit provision, 4SC ¶ 1919, which permits "any person" to commence 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." 16 U.S.C. 1540(g)(1)(A) (emphasis added).

The SRS Contractors cite National Wildlife Federation v. Burlington Northern Railroad, 23 F.3d 1508 (9th Cir. 1994), in support of their contention that Section 9 clams cannot be based upon wholly past conduct. In Burlington, plaintiffs appealed the denial of their motion for a preliminary injunction in a Section 9 case. Id. at 1509. The Ninth Circuit held that, despite the fact that requests for injunctive relief under the ESA must be evaluated in light of "Congress' determination that the balance of hardships and the public interest tips heavily in favor of protected species," to obtain an injunction under Section 9, a plaintiff still "must make a showing that a violation of the ESA is at least likely in the future." Id. at 1511 (emphasis added); cf. Ctr. for Biological Diversity v. Marina Point Dev. Co., 566 F.3d 794, 804 (9th Cir. 2009) (finding Section 9 claim against developer regarding take of bald eagles moot because eagle had been delisted by the time appeal was decided, reasoning that the delisting made it impossible for developer to "violate" the ESA regarding the bald eagle).

The SRS Contractors also cite Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987). In Gwaltney, several weeks before plaintiffs filed a lawsuit under the citizen suit provision of the Clean Water Act ("CWA"), the defendant ceased violating its CWA permit. Id. at 53-54. The Fourth Circuit concluded that the Gwaltney plaintiffs could pursue their CWA citizen suit claim based entirely on past conduct. Id. at 56. The CWA's citizen suit provision provides that "any citizen may commence a civil action on his own behalf . . . against any person [or agency] . . . who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation." 33 U.S.C. § 1365.10 The Supreme Court reversed, noting that Congress, by using the phrase "to be in violation" in the CWA's citizen suit provision, intended for citizens to be able to abate only ongoing violations, and thus required plaintiffs to "allege a state of either continuous or intermittent violation-that is, a reasonable likelihood that a past polluter will continue to pollute in the future." Id. at 57. The Supreme Court further noted that a contrary conclusion would render the CWA's 60-day notice requirement "incomprehensible," because the purpose of that notice "is to give [the alleged violator] an opportunity to bring itself into compliance with the Act and thus render unnecessary a citizen suit." Id. at 59-60.

The SRS Contractors make an analogous argument here based upon ESA's 60-day notice provision, the purpose of which is, at least in part, to give defendants "notice of a perceived violation" and "give them the opportunity to review their actions and take corrective measures if warranted." Conservation Cong. v. Finley, 774 F.3d 611, 618 (9th Cir. 2014) (internal citation and quotation omitted). The SRS Contractors argue that if a citizen suit could be brought for wholly past violations, this purpose of the 60-day notice provision would be thwarted. SRS MTD at 18.

Plaintiffs argue that Gwaltney does not apply to the ESA and that nothing in the ESA requires a citizen suit plaintiff to plead facts establishing a likelihood of future harm. Pltf. Opp. at 28-30. Plaintiffs point to Stout v. U.S. Forest Serv., 869 F.Supp.2d 1271 (D. Or. 2012), in which the defendants argued, at the summary judgment stage, that plaintiffs had to prove "that take is likely to occur in the future to prevail on their [Section] 9 claim." Id. at 1280. Rejecting this argument, the district court reasoned:

Id. at 1280-81.

While not illogical, it is very difficult to square the reasoning of Stout with Gwaltney, which interpreted language from the CWA that is materially identical to the relevant ESA language. It is true that some complicating ESA jurisprudence exists. For example, as the district court in Stout pointed out, id. at 1281 n.7, prior to the Ninth Circuit's ruling in Forest Conservation Council, 50 F.3d at 785, it was not settled that a plaintiff could obtain relief under the ESA for wholly future harm to listed species. In that case, the Ninth Circuit noted that "[a] take may involve a past or current injury, or the prospect of an imminent threat of harm to a protected species." Id. at 784 (emphasis added). This holding is entirely consistent with Stout's conclusion that the prospective nature of the injunctive relief permitted by the citizen suit provision does not require allegations of future harm to maintain a Section 9 claim.

It is not necessary, however, for the Court to determine definitively whether Gwaltney applies to the ESA's citizen suit provision because, even if it does, Plaintiffs' claim is not based wholly on past violations. Plaintiffs allege generally that "the Bureau and the SRS Contractors have violated and are likely to continue to violate Section 9 of the ESA by unlawfully and without required authorization taking winter-run and spring-run Chinook." 4SC at ¶ 23; see also id. at ¶ 29 ("[T]he Bureau and SRS Contractors have taken, and are taking, winter-run and spring-run Chinook in violation of 16 U.S.C. § 1538(a)."). More specifically, paragraph 76 alleges NMFS's conclusion that continued drought conditions would lead to similar mortality in the future:

4SC ¶ 76. Relatedly, paragraph 137 alleges "the duration and intensity of droughts are anticipated to increase in California." Taken together, along with the other allegations in the 4SC, these allegations are sufficient to allege plausibly that the Bureau and the SRS Contractors are likely to continue to violate Section 9. Id. at ¶ 137.11 The SRS Contractors' motion to dismiss on this ground is DENIED.

3. Federal Defendants' Motion to Dismiss the Sixth Claim for Relief

Federal Defendants argue that the Plaintiffs' Section 9 claims against them is barred because the alleged take was covered by the ITS included in the 2009 NMFS Salmonid OCAP BiOp. Relatedly, Federal Defendants also argue that an agency cannot, as a matter of law, be the proximate cause of any take that occurs as a result of that agency implementing a legally mandated water delivery (i.e., a non-discretionary action).

As mentioned, Section 7 requires that every federal agency, before undertaking an "action authorized, funded, or carried out by" that agency, must ensure that the action is not likely to jeopardize the continued existence of a protected species or harm the critical habitat of a protected species. 16 U.S.C. § 1536(a)(2). When effects on protected species are likely, the agency must go through a formal consultation process with FWS and/or NMFS. Id. If the resulting BiOp concludes that the proposed action (or its reasonable and prudent alternative) will cause "the taking of a[] [listed] species incidental to the agency action," but that despite this taking, the action will not jeopardize the species or threaten critical habitat, FWS or NMFS shall provide the agency with a written statement that:

16 U.S.C. § 1536(b)(4). The resulting ITS provides the applicant agency with immunity from Section 9. Section 7 provides that "any taking that is in compliance with the terms and conditions specified in a written [ITS] . . . shall not be considered to be a prohibited taking of the species concerned." 16 U.S.C. § 1536(o )(2). "Where the agency's action involves authorization or approval of private party conduct, then the private party is also protected from Section 9 by compliance with the agency's [ITS]." Defs. of Wildlife v. U.S. Fish, No. 16-CV-01993-LHK, 2016 WL 4382604, at *2 (N.D. Cal. Aug. 17, 2016).

A related provision governs incidental take by private parties and authorizes FWS and NMFS to issue an ITP "under such terms and conditions as [the service] may prescribe." 16 U.S.C. § 1539(a)(1). As with an ITS, an ITP may excuse take that "is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." 16 U.S.C. § 1539(a)(1)(B). An applicant for an ITP must submit a habitat conservation plan demonstrating that the take "will not appreciably reduce the likelihood of the survival and recovery [of the species] in the wild." ESA § 10(a)(2)(B)(iv).12

Federal Defendants maintain that the salmonid mortality that occurred in 2014 and 2015 was covered by the ITS issued in connection with the 2009 NMFS Salmonid OCAP BiOp. FD MTD at 18-19. On the one hand, the 2009 NMFS Salmonid OCAP BiOp explicitly indicated that it considered "the overall impacts of the total volume of water diverted from the Central Valley." 2009 NMFS Salmonid OCAP BiOp at 729.13 On the other hand, the 2009 NMFS Salmonid OCAP BiOp is direct about its own limitations, indicating:

2009 NMFS Salmonid OCAP BiOp at 35. Even more importantly, the 2009 NMFS Salmonid OCAP BiOp also recognized that, at least at the time of its issuance, Reclamation claimed certain contracted-for volumes were "nondiscretionary." Id. As a result, NMFS requested that "Reclamation provide written notice to NMFS . . . of any contract that it believes is [sic] creates a nondiscretionary obligation to deliver water, including the basis for this determination and the quantity of nondiscretionary water delivery required by the contract." Id. Critically, and in direct reference to such nondiscretionary deliveries, the 2009 NMFS Salmonid OCAP BiOp indicated: "Any incidental take due to delivery of water to such a contractor is not be [sic] exempt from the ESA section 9 take prohibition in this Opinion." Id.; see also id. at 729 ("In the event that Reclamation determines that delivery of quantities of water to any contractor is nondiscretionary for purposes of the ESA, any incidental take due to delivery of water to that contractor would not be exempted from the ESA section 9 take prohibition in this Opinion."); id. at 601 ("The incidental take statement for this Opinion also provides limitations of ESA incidental take coverage for Settlement Contractors under the terms of this Opinion.").

It is difficult to square this language with Federal Defendants' opening position that the ITS covers take caused in connection with the delivery of water under the SRS Contracts. As acknowledged by NMFS in the 2009 NMFS Salmonid BiOp, Reclamation maintained at the time of the issuance of that BiOp that deliveries to the SRS Contractors were non-discretionary. See, e.g., 2009 NMFS Salmonid OCAP BiOp at 684 (explaining that "[t]emperature related effects on spring-run in the mainstem Sacramento River will persist into the future, and cannot be fully off-set through Shasta reservoir storage actions, due to physical and hydrological constraints on the CVP system, and the delivery of water to non-discretionary CVP contractors (e.g., Sacramento River Settlement Contractors)") (emphasis added). Likewise, as discussed, the ITS itself explicitly excludes from its coverage non-discretionary activities.14 Federal Defendants even point out that an ITS, which is issued pursuant to Section 7(b)(4), 16 U.S.C. § 1536(b)(4), is only available as part of the Section 7 consultation process, which in turn only applies to non-discretionary agency action. See 50 C.F.R. § 402.03; see also Nat'l Ass'n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 667 (2007) (Section 7 does not apply where an agency "simply lacks the power to `insure' that [its] action will not jeopardize endangered species."). All this leads the Court to conclude, at least for the purpose of this motion, that the ITS issued in connection with the 2009 NMFS Salmonid OCAP BiOp could not possibly cover deliveries to the SRS Contractors, which Reclamation (the agency that applied for the ITS) maintained at the time the BiOp and ITS issued were non-discretionary.15

This is where Federal Defendants' second argument—that an agency cannot, as a matter of law, be the proximate cause of any take that occurs as a result of that agency implementing a legally mandated action—becomes intertwined with its first. To understand why, the Court must side-step to review briefly the second argument and its supporting (and contrary) legal authority.

Federal Defendants argue that dismissal of the Sixth Cause for Relief is required because Plaintiffs fail to allege any "legally relevant causal link between Reclamation's alleged act and Plaintiffs' alleged take." FD MTD at 19. It is well-established that concepts of proximate cause apply to Section 9 claims. See Cascadia Wildlands v. Kitzhaber, 911 F.Supp.2d 1075, 1084 (D. Or. 2012) (collecting cases supporting the proposition that "[i]t is well accepted that proximate cause is an element of ESA Section 9 claims," and explaining that "[i]n the context of the ESA, proximate cause issues entail determining whether the alleged injury . . . is fairly traceable to the challenged action of [d]efendants.").

Federal Defendants cite U.S. Department of Transportation v. Public Citizen, 541 U.S. 752 (2004), for the proposition that a sufficient causal connection cannot possibly exist if the agency "has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions." Id. at 770. In that case, the Supreme Court held that the defendant federal agency, the Federal Motor Carrier Safety Administration ("FMCSA") did not violate the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-370, when it failed to analyze the environmental impact of permitting cross-border truck traffic. The Supreme Court noted that "NEPA requires a reasonably close causal relationship between the environmental effect and the alleged cause," analogous to the "familiar doctrine of proximate cause from tort law," and instructed that "courts must look to the underlying policies or legislative intent in order to draw a manageable line between those causal changes that may make an actor responsible for an effect and those that do not." 541 U.S. at 767 (internal citation and quotation omitted). Because FMCSA was statutorily required to allow the trucks to enter the country, an environmental analysis of any alternative action would not serve "the underlying policies behind NEPA" to provide information to the public and to inform the decision-making process. Id. at 768. Put another way, "[s]ince FMCSA has no ability categorically to prevent the cross-border operations of Mexican motor carriers, the environmental impact of the cross-border operations would have no effect on FMCSA's decisionmaking—FMCSA simply lacks the power to act on whatever information might be contained in the EIS." Id.

Federal Defendants maintain that Public Citizen applies with equal force to the ESA and that, as a result, an agency cannot be held liable under Section 9 for an action it is legally mandated to perform. FD MTD at 20.

Plaintiffs argue that Public Citizen is inapplicable in the context of the ESA. Pltf. Opp. at 27. At least one district court has so held. In Seattle Audubon Soc'y v. Sutherland, No. C06-1608MJP, 2007 WL 1577756, at *1 (W.D. Wash. May 30, 2007), the defendant agency argued that under Public Citizen agency officials could not be the proximate cause of any alleged take because those officials did not have discretion to deny permits that comply with the requirements of the Forest Practices Act. The district court rejected this argument, reasoning that "[a]lthough [Public Citizen's] holding makes sense in the context of a procedural, information-forcing statute like NEPA, it is inapplicable under the ESA, which serves completely different purposes."Id.16

With this in mind, the Court returns to the first dispute: whether any ITS (let alone the one associated with the 2009 NMFS Salmonid OCAP BiOP) may provide take exemption for activities assumed by the applicant and issuing agency to be non-discretionary. Because, as discussed, Section 7 only applies to non-discretionary agency action, see 50 C.F.R. § 402.03; see also Home Builders, 551 U.S. at 667, it is logical to—and the Court does conclude—that an ITS can never provide an incidental take exemption for non-discretionary agency activities.1718

Assuming an ITS cannot cover incidental take caused by non-discretionary agency action, the Federal Defendants argue that Plaintiffs' entire claim is "untenable" because, under Plaintiffs' theory of the case, "Reclamation would at once be legally required to comply with [a mandatory legal requirement regarding water deliveries], yet face ESA liability for any associated incidental take that resulted," without any way to obtain incidental take protection. FD Reply at 10 (emphasis added).

Key to Federal Defendants argument is their assumption that there is no way other than via an ITP for a federal agency to obtain incidental take authorization. Federal Defendants assert, without citing any authority that "while private actors can apply for an [ITP] under [S]ection 10, no such permitting option exists for federal action." Id. The relevant language of Section 10 is quite generic: "The Secretary may permit, under such terms and conditions as he shall prescribe . . . any taking otherwise prohibited by section 1538(a)(1)(B) of this title if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity."16 U.S.C. § 1539(a)(1)(B). Likewise, a key NMFS regulation outlining the ITP process does not appear to prohibit federal agencies from applying for an ITP. See 50 C.F.R. § 222.307. The fact that Federal Defendants assume this avenue is unavailable does not make it so. This is not an esoteric inquiry. The existence of an alternative mechanism for obtaining incidental take authorization would undermine significantly Federal Defendants' only response to the fact that the 2009 NMFS Salmonid OCAP BiOp appears to exempt on its face deliveries pursuant to non-discretionary contract obligations. If there is an alternative path to take authorization, Federal Defendants are not stuck in the "untenable" Catch-22 they describe. Federal Defendants are directed to provide supplemental authority to support the assertion that a federal agency may not apply for an ITP. If any party asserts otherwise (i.e., that a federal agency may apply for an ITP), they may so assert in response, but should also address whether and to what extent the reasoning of Home Builders would impact the applicability of Section 10 to non-discretionary federal activities.

Assuming there is no alternative mechanism by which a federal agency could obtain take authorization, Congress cannot have intended to place the agency in such an impossible bind. The most logical way out of this conundrum would be to apply Public Citizen to Section 9 of the ESA, thereby barring claims against an agency under Section 9 where non-discretionary duties render the agency powerless to act in a manner that could prevent the take in question.

But it cannot be ignored that Plaintiffs allege that Federal Defendants do possess discretionary authority over contract implementation, specifically alleging that Reclamation demonstrated this discretion in various ways. See Pltf. Opp at 28. In the discussion regarding the Fifth Claim for Relief, the Court requested supplemental briefing to determine whether any of Plaintiffs' allegations of conduct demonstrating the existence of discretion could be considered in the context of that claim, given EPIC's apparent focus on contractual language. To what extent such conduct-based allegations of discretion are relevant to the Sixth Claim for Relief remains equally, if not more unclear.

Plaintiffs' allegations related to the existence of discretion may be important to the applicability of Public Citizen to this case. In Public Citizen, the Supreme Court examined whether in fact the agency action was non-discretionary. 541 U.S. at 765-67. Therefore, even assuming Public Citizen applies to Section 9 claims, its holding would only apply if, in fact, Reclamation did not possess discretion over contract implementation. In contrast, Public Citizen would not entitle Reclamation to dismissal if Plaintiffs have plausibly alleged that in fact Reclamation possesses discretion over contract implementation. Given that the request for supplemental briefing articulated in connection with the Fifth Claim for Relief is relevant to this inquiry, the Court will await that supplemental briefing before determining whether Public Citizen bars Plaintiffs' Sixth Claim for Relief. In addition, given that the key authority underlying the Court's analysis of the Fifth Claim for Relief, EPIC, concerns the consultation re-initiation process, rather than liability under Section 9, the parties also will be given an opportunity to address whether Plaintiffs' allegations of conduct indicating the existence of discretion to implement the SRS Contracts (as opposed to reliance upon contractual provisions) may be considered in a different manner in the context of the Sixth Claim for relief.19

In summary:

(1) Because Reclamation asserted in the context of consultation leading up to the 2009 NMFS Salmonid OCAP BiOp that deliveries under the SRS Contracts were non-discretionary, it cannot now obtain outright dismissal of Plaintiffs' Sixth Claim for Relief on the ground that any take was covered by the 2009 NMFS Salmonid OCAP BiOp ITS, at least not on the present record. Because Section 7 does not apply to non-discretionary activities, the ITS that resulted from a Section 7 consultation could not possibly apply to activities assumed at the time to be non-discretionary, as the impacts of those activities would not have been considered, at least not in full. Moreover, the ITS itself disclaims providing any take authorization for non-discretionary activities. This does not preclude Reclamation from making a similar argument on summary judgment that, among other things, addresses the apparent conflict within the 2009 NMFS Salmonid OCAP BiOp, insofar as it also purports to evaluate the impacts of all deliveries, including deliveries to the SRS Contractors.

(2) Reclamation may nevertheless escape liability under Section 9 for making non-discretionary deliveries because, under Public Citizen, Reclamation cannot be the proximate cause of take when the agency is legally required to perform the acts that purportedly result in the take. Adopting Plaintiffs' argument that Public Citizen should be limited in its application to NEPA claims would leave Federal Defendants with no mechanism under the law to obtain incidental take authorization for any non-discretionary federal activity. (This conclusion depends in part on Federal Defendants' unsupported assertion that the Section 10 process for obtaining an ITP is unavailable to federal agencies. Federal Defendants shall include in any supplemental briefs citations to support this assertion.)

(4) Notwithstanding the above conclusion regarding Public Citizen, if Plaintiffs have plausibly alleged that Reclamation's deliveries are, in fact, discretionary, Public Citizen would not apply. Because Plaintiffs' allegations involve conduct, rather than contract provisions, that tend to demonstrate discretion, the Court's request for supplemental briefing made in connection with the Fifth Claim for Relief may inform the analysis regarding the Sixth Claim for Relief. Relatedly, the parties are invited to address whether the Court should treat these allegations of "conduct" extrinsic to the contract terms differently in the context of the Sixth Claim for Relief from how it should be treated in the context of the Fifth Claim for Relief governed by EPIC.

VI. CONCLUSION

For the reasons set forth above:

(1) Because the previously assigned district judge entered final judgment on the First and Third Claims for Relief and no appeal was taken, and Plaintiffs admit that these claims are included in the 4SC for informational purposes only, the motions to dismiss the First and Third Claims for relief are DENIED as unnecessary.

(2) The DMC Contractors' and SRS Contractors' motions to dismiss the Second Claim for Relief are GRANTED because Plaintiffs failed to comply with the ESA's 60-day notice requirement as to any non-moot aspects of that claim.

(3) Plaintiffs are directed to submit supplemental briefing addressing the specific inquiries highlighted by the Court in connection with the Fifth and Sixth Claims for Relief. Any such supplemental brief, not to exceed fifteen pages in length, shall be submitted on or before November 18, 2016. Federal Defendants may file a response of equal length within twenty-five days of the filing of Plaintiffs' supplemental brief. As these issues concern matters raised in Federal Defendants' moving papers, upon review of Plaintiffs' supplemental brief and after meeting and conferring with Federal Defendants, the DMC Contractors and the SRS Contractors are directed to seek leave of court within fourteen days of the filing of Plaintiffs' supplemental brief if they wish to file responsive briefs, outlining with specificity the matters to be addressed and proposing reasonable page limits.

IT IS SO ORDERED.