ORDER FOR SUPPLEMENTAL BRIEFING RE PLAINTIFFS' STANDING TO PURSUE THE SIXTH CLAIM FOR RELIEF AGAINST RECLAMATION

LAWRENCE J. O'NEILL, Chief District Judge.

In the context of Federal Defendants "Cross-Motion for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment," Federal Defendants request dismissal of Plaintiffs' Sixth Claim for relief against the Bureau of Reclamation ("Reclamation") on numerous jurisdictional grounds. See ECF No. 1210-1 at 26-34. Only two narrow aspects of that claim, which arises under Section 9 of the Endangered Species Act, 16 U.S.C. § 1538, remain pending against Reclamation: that Reclamation unlawfully "took" ESA-listed salmonids by (1) approving water transfers from Sacramento River Settlement Contractors ("SRS Contractors") to others in 2014 and 2015; and (2) by failing to require one SRS Contractor, the Glenn Colusa Irrigation District (GCID), to divert a certain volume of water from Stony Creek, rather than directly from the Sacramento River, during those same years. See ECF No. 1069 at 56-57.

As to the water transfer theory of liability, Federal Defendants argue, among other things, that Plaintiffs are unable to establish the causation or redress elements of Article III standing because Plaintiffs theory of causation turns on the assumption that the SRS Contractors would forfeit some portion of their contractual allocation(s) in the absence of the opportunity to transfer water. ECF No. 1210-1 at 29, 31. Federal Defendants maintain that this assumption is in error. Id. The Court is inclined to agree with Federal Defendants that if Plaintiffs cannot establish that the water would have remained un-diverted absent the transfers, causation as to this theory is lacking, especially in light of other evidence suggesting that the transfer approvals likely delayed water diversion in ways that could only have benefited salmonids. Id. at 36 (citing BOR0011863-65, 0011876, 0011889-90; 0011740-41).

The causation element of Article III standing requires that the injury be "fairly traceable to the challenged action of the defendant" and not "the result of the independent action of some third party not before the court." Tyler v. Cuomo, 236 F.3d 1124, 1132 (9th Cir. 2000). It is Plaintiffs' burden to demonstrate standing. Id. at 1131. In the context of evaluating whether a claim should be dismissed for lack of standing pursuant to Federal Rule of Civil Procedure 12(b)(1), "[i]t is within the trial court's power to allow or to require the plaintiff to supply, by amendment to the complaint or by affidavits, further particularized allegations of fact deemed supportive of plaintiff's standing. If, after this opportunity, the plaintiff's standing does not adequately appear from all materials of record, the complaint must be dismissed." Warth v. Seldin, 422 U.S. 490, 501-02 (1975); Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011).

Here, Plaintiffs have submitted water usage tables from certain water years (2011, 2012, 2013, 2016), which at least suggest that, in those years, the SRS Contractors did not use all of their contractual allocation(s). See Declaration of Kate Poole, Exs. 174-77 (ECF Nos. 1248-29-1248-32). However, conspicuously absent from the cited set of documents (see ECF No. 1247 at 39) are water usage tables from 2014 and 2015, the drought years directly at issue in the Section 9 claim.1

The Court therefore directs Plaintiffs to present the missing years' water usage tables or to explain why those years have not been presented or should not be considered. If, as the Court surmises may be the case, the missing years reveal a different picture from the years already presented, Plaintiffs must explain why and how they have nonetheless established that the asserted injury is fairly traceable to Reclamation's conduct in the years in question (which is, ultimately, the burden) in light of the missing years' usage patterns.

Finally, Federal Defendants' motion to dismiss extends to the entirety of the Section 9 claim against Reclamation, including any claim premised upon the theory that Reclamation could have required GCID to divert a certain volume of water from Stony Creek instead of from the Sacramento River. It does not appear that Plaintiffs have mounted a serious opposition to dismissal of any Section 9 claim premised on the Stony Creek flow theory. As mentioned, it is Plaintiffs' burden to establish standing as to each and every claim. Accordingly, Plaintiffs are directed to indicate whether or not they are abandoning the Stony Creek flow theory. If they are not, they are instructed to direct the Court's attention to where in the existing record they have presented a plausible causal theory (either as causation is relevant to standing or as part of a theory of proximate cause on the merits) as to Reclamation's alleged failure to require GCID to divert water from Stony Creek as opposed to from the Sacramento River.

Plaintiffs are directed to address these two matters in a supplemental brief no longer than five pages in length (exclusive of attachments) on or before September 14, 2018. Thereafter, Federal Defendants shall have seven days to file a response, to which the same page limit applies.

IT IS SO ORDERED.