NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 26 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

WISHTOYO FOUNDATION; CENTER                     No.    19-55380
FOR BIOLOGICAL DIVERSITY;
VENTURA COASTKEEPER, a Program of               D.C. No.
Wishtoyo Foundation,                            2:16-cv-03869-DOC-PLA

                Plaintiffs-Appellees,
                                                MEMORANDUM*
 v.

UNITED WATER CONSERVATION
DISTRICT,

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                    David O. Carter, District Judge, Presiding

                     Argued and Submitted February 12, 2020
                              Pasadena, California

Before: BERZON, TALLMAN, and R. NELSON, Circuit Judges.

      United Water Conservation District (“United”) appeals the district court’s

grant of judgment to plaintiffs (collectively, “Wishtoyo”) on their Endangered

Species Act claim regarding take of Southern California Steelhead. We affirm.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      1.     The district court properly held that the National Marine Fisheries

Service (“NMFS”) and other regulatory agencies were not necessary parties under

Federal Rule of Civil Procedure 19(a)(1). The district court was careful to structure

the injunction to provide relief to Wishtoyo without requiring the agencies’

participation in the case. See Fed. R. Civ. P. 19(a)(1)(A).

      United points to one sentence of the injunction providing that “NMFS shall

respond promptly to a request for . . . assistance” when stranded fish need to be

hauled or handled. In the context of the order as a whole, we do not read the

district court’s use of the word “shall” as ordering NMFS to take certain action but

rather as recognizing that the agency can be expected to respond promptly when

fish are stranded.

      NMFS and the other regulatory agencies also have not claimed an interest

relating to the subject of the action. See Fed. R. Civ. P. 19(a)(1)(B); Roberts v. City

of Fairbanks, 

, 1204–05 (9th Cir. 2020).

      2.     The district court did not err in relying on NMFS’s incidental take

statement in the biological opinion as one source of evidence that United’s

operations were taking steelhead. The incidental take statement explained that

“[o]perating the Vern Freeman Diversion Dam, even with the reasonable and

prudent alternative, is expected to cause incidental take of the endangered Southern

California DPS of steelhead,” and it specified the nature of the takes that were


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expected. This “expected” language demonstrates that NMFS considered that takes

of steelhead are “reasonably certain” to occur. Defs. of Wildlife v. Bernal, 

, 925 (9th Cir. 2000). We therefore need not decide whether it would be proper

to rely on a less definite incidental take statement as evidence of take in a citizen

suit under section 9 of the Endangered Species Act, 16 U.S.C. § 1538(a)(1)(B).

      3.     The district court did not abuse its discretion in admitting into

evidence NMFS’s biological opinion and the testimony of NMFS officials. The

introduction of the biological opinion was proper under the public records

exception to the hearsay rule. Fed. R. Evid. 803(8). The district court relied on the

biological opinion as one data point among others, not to establish United’s

liability. The NMFS officials were asked to testify by the district court; they were

not expert witnesses for Wishtoyo who had not been disclosed. See Fed. R. Evid.

614(a).

      4.     United does not challenge the district court’s award of attorney’s fees

and costs to Wishtoyo except to request that this court vacate the fee award if it

vacates the judgment. Because we affirm the judgment, we do not vacate the fee

award.

      5.     We deny Wishtoyo’s motion for leave to file a surreply (Dkt. 41) and

deny as moot Wishtoyo’s motion to strike United’s response to the proposed

surreply (Dkt. 46). The district court’s findings of fact and conclusions of law did


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not rely upon the trial exhibits at issue; nor do we. So there is no need, for purposes

of this appeal, to clarify whether they were admitted.

      The judgment is AFFIRMED.




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