MEMORANDUM DECISION RE PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT (DOC. 114)
OLIVER W. WANGER, District Judge.
This case concerns enforcement by the California Department of Fish and Game ("CDFG"), through its Director John McCamman, ("State Defendant") of state sportfishing regulations designed to protect striped bass population in the Sacramento-San Joaquin Delta. Plaintiffs, the Coalition For a Sustainable Delta, et al., ("Plaintiffs" or "the Coalition"), allege that State Defendants' enforcement of these regulations violates section 9 of the Endangered Species Act ("ESA" or "Section 9"), because striped bass prey on and take various ESA-listed species.
State Defendant originally cross-moved for summary adjudication that Dee Dillon does not have standing. Doc. 113. After additional discovery was completed, State Defendant withdrew its motion, recognizing that "Mr. Dillon's most recent declaration and deposition testimony create a potential triable issue of material fact as to whether Mr. Dillon has been injured by the State Defendant's enforcement of the striped bass regulations." Doc. 162 at 3. State Defendant did not withdraw its opposition to Plaintiffs' motion for summary adjudication as to Mr. Dillon's standing. See id.
The matter came on for hearing June 23, 2010, in Courtroom 3(OWW).
Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A party moving for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted).
Where the movant has the burden of proof on an issue at trial, it must "affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007); see also S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir.2003) (noting that a party moving for summary judgment on claim on which it has the burden at trial "must establish beyond controversy every essential element" of the claim) (internal quotation marks omitted). With respect to an issue as to which the non-moving
When a motion for summary judgment is properly made and supported, the non-movant cannot defeat the motion by resting upon the allegations or denials of its own pleading, rather the "non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, `specific facts showing that there is a genuine issue for trial.'" Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment." Id.
To defeat a motion for summary judgment, the nonmoving party must show there exists a genuine dispute (or issue) of material fact. A fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. "[S]ummary judgment will not lie if [a] dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. 2505. In ruling on a motion for summary judgment, the district court does not make credibility determinations; rather, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. 2505.
Resolution of many of the disputes in these motions turns on whether liability under ESA § 9 is attributable to State Defendant's actions. It is undisputed that the Central Valley spring-run Chinook salmon is listed as a threatened species, 64 Fed. Reg. 50,394-50,415; 70 Fed. Reg. 37,160-37,204, and that the Sacramento River winter-run Chinook salmon is listed as an endangered species, 59 Fed. Reg. 440.
ESA § 9 prohibits the "take" of any species listed as endangered. 16 U.S.C. § 1538(a)(1)(B). The Secretary of the Interior, through regulation, has applied the "take" prohibition to species that are listed as threatened. 50 C.F.R. § 17.31(a). "Take" is defined to include "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct." 16 U.S.C. § 1532(19).
"Harm" is defined by regulation to include:
50 C.F.R. § 17.3. Under this regulation, a person can "harm" either directly; by actually killing or injuring a protected animal, or by modifying the species' habitat to the point of significantly impairing the species' essential behavioral patterns where that impairment results in the actual death or injury of endangered animals.
"Direct" harm involves the direct application of force to a member of a protected species, resulting in actual death of or injury to the animal. See Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 694, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995).
Either form of take by harm (direct harm or harm by habitat modification) may include acts of a third party that indirectly bring about a take by causing another to effect a take. 16 U.S.C. § 1538(g) (making it "unlawful for any person subject to the jurisdiction of the United States to attempt to commit, solicit another to commit, or cause to be committed, any offense defined in this section"). A third party government actor
It is unclear how the claims in this case should be classified. Is predation by striped bass a direct harm indirectly
Instead, the circumstances of this case must be addressed as a form of harm by habitat modification. This is consistent with cases that have found take where human activities reduce prey populations. Greenpeace Foundation v. Mineta, 122 F.Supp.2d 1123, 1134 (D.Haw.2000) (finding removal of prey may constitute harm by habitat modification). This is a close analogy to the present circumstances, where human activities are alleged to be increasing predator populations.
Here, this distinction is important, because, where direct harm and harm by habitat modification appear to differ is in their need for proof of a population-level effect. 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); Mausolf v. Babbitt, 125 F.3d 661, 668-70 (8th Cir. 1997) (upholding agency decision to ban snowmobiling in a National Park based in part on evidence of "several cases" of harassment and harming of gray wolves, explaining that the ESA "prohibits any person, including a governmental agency, from `taking' any individual member of a threatened or endangered species population"); Strahan, 127 F.3d at 165 (refusing to consider "significant efforts" made by state regulatory agency to minimize entanglements
In contrast, there is some authority suggesting that, in the Ninth Circuit, harm by habitat modification requires proof of a population level effect. For example, in Palila v. Hawaii Dept. of Land and Natural Resources, 852 F.2d 1106, 1108 (9th Cir.1988), a pre-Sweet Home case, the Ninth Circuit affirmed the district court's construction of the harm regulation to include "habitat destruction that could drive [a species] to extinction." In Palila, it was undisputed that large numbers of mouflon sheep would significantly damage the Palila's (an ESA-listed bird) habitat, driving the Palila to extinction. Id. at 1109. It was disputed, however, whether a controlled number of sheep could co-exist with the Palila. Id. After a bench trial, the district court credited those witnesses who maintained the two species could not coexist at any level of sheep population, finding that the state agency's permitting of sheep in the Palila's habitat constituted a taking under the ESA. Id. at 1109-1110; see also Greenpeace Foundation, 122 F.Supp.2d at 1134 (denying motion for summary judgment, finding there was a dispute of fact regarding whether reduction in monk seal prey as a result of NMFS's management of lobster fishing would "doom[] the monk seal to extinction").
Palila's requirement of proof that habitat modification would lead to extinction was re-affirmed in the post-Sweet Home case National Wildlife Federation v. Burlington N. R.R., 23 F.3d 1508, 1513 (9th Cir.1994), and extended to also include habitat degradation where a plaintiff can "show significant impairment of the species' breeding or feeding habits and prove that the habitat degradation prevents, or possibly, retards, recovery of the species." In Burlington Northern, a series of grain spills from defendant's trains in northwestern Montana resulted at least seven grizzly bear fatalities in and around the spills. Id. at 1510. Environmental plaintiffs' request for a preliminary injunction against defendant's operations was denied because they failed to show that similar harm in the future was likely. Id. at 1511-13. Specifically, the Ninth Circuit cited evidence that "mortalities in the spill area `likely have had little long term overall effect'" on the region's grizzly bear population; the impacts of the corn spill were "of a `localized nature' and could not `be characterized as significant'"; and "that grizzly bears have not been habituated over a long period of time to the corn spill area, reducing the likelihood that grizzly bears would continue to frequent the area once the food source was removed." Id. at 1511.
The Ninth Circuit's reasoning in Defenders of Wildlife v. Bernal, 204 F.3d 920 (9th Cir.2000), cited by Plaintiffs, suggests that
Id. at 925. After a three-day bench trial, the district court found that the proposed construction project would not "result in the take of a pygmy owl." Id. at 922. Although there was some evidence that owls used the 30-acre parcel, there was inconsistent evidence regarding the impact of construction on the owls. Id. at 925. Given the ultimate conclusion that harm, even to one owl, had not been proven, the district court's assumption that harm by habitat modification could be shown by proving harm to an individual animal was not necessary to its decision. Without discussing the district court's assumption, the Ninth Circuit affirmed. Id, at 930.
The balance of the authority suggests that a population level effect is necessary for harm resulting from habitat modification to be considered a take. Arguendo, imposing such a requirement in all cases of alleged harm by habitat modification might cause a species' habitat, and its continued survival and/or chances of recovery, to be destroyed in a piecemeal fashion. This is not a case in which such piecemeal destruction is a threat. This case involves the entire striped bass population in the Delta and its alleged predatory impact on the entire populations of listed winter and spring-run Chinook salmon.
Finding that an actionable take occurred whenever an action that disturbs the balance of an ecosystem poses a reasonably certain threat of imminent harm
In a footnote to its reply brief, State Defendant objects to the electronic signatures on Mr. Dillon's declaration in support of Plaintiffs' motion for partial summary judgment, Doc. 114-4, and in opposition to State Defendant's motion for summary judgment, Doc. 119-2. State Defendant asserts that Mr. Dillon's electronic signature fails to comply with the requirements of Local Rule 131(f), which provides
However, Local Rule 131(g) requires any party disputing the authenticity of an electronically-filed document with a non-attorney signature to "file an objection and request that the document be stricken within twenty-one (21) days of receiving the Notice of Electronic Filing or a copy of the document, whichever first occurs, unless good cause exists for a later contest of the signature by a person exercising due diligence." Here, the Declarations in question were filed electronically on February 22, 2010 and March 30, 2010, respectively. State Defendant's reply brief objecting to the electronic signature was not filed until April 30, 2010, sixty seven (67) and thirty one (31) days after receiving notices of the electronic filing, denying Plaintiffs the opportunity to correct the signature. State Defendant has presented no evidence suggesting good cause existed for a later contest of the signatures. State Defendant's objection to these declarations is OVERRULED.
Plaintiffs rely extensively on a series of purported "admissions" made by State Defendant's Rule 30(b)(6) designee Marty
The Ninth Circuit has yet to decide this issue. There is a marked divide in the caselaw. Some courts suggest that an agency is bound by the testimony of its Rule 30(b)(6) designee.
The Gingras testimony may be amplified or explained, so long as a material change or retraction is not made without a reasonable basis.
Plaintiffs object to State Defendant's inclusion of certain background facts in its Statement of Undisputed Fact. For example, Plaintiffs object to the following statement as irrelevant: "The water district plaintiffs base their claim of injury on the allegation that DFG's enforcement of the regulations have harmed ESA-listed species, causing federal fishery agencies to reduce State Water Project (SWP) water deliveries to them." SDSUF # 1. This objection is OVERRULED, as this fact provides relevant background information and is admissible for that purpose. The conclusions that such reductions are caused by the regulations is disputed. The same conclusion applies to the same objection as to SDSUF Numbers 4 and 5.
Plaintiffs also object to certain statements describing the extent to which Mr. Dillon has used and enjoyed the Delta. For example, they object to the following statement as "immaterial": "Mr. Dillon stated that he has photographed salmon two or three times in the Delta." SDSUF # 10. Plaintiffs insist that "the relevant material fact is not how many salmon Mr. Dillon has photographed in the Delta; instead, it is whether Mr. Dillon has attempted to photograph salmon in the Delta." Doc. 121 at 8. This fact is not wholly irrelevant to a determination of whether Mr. Dillon has ever and/or continues to photograph salmon in the Delta. The weight to be given this fact is a separate question. The objection is OVERRULED.
The same reasoning and conclusion apply to Plaintiffs' objections to SDSUF Nos. 11, 12, 15, 16, 23, 24, 25, 27, 28, 29, 35, 36, 37, 38, 39, 40, 41, 42, 45, 46, 47, and 48, all of which present facts related to Mr. Dillon's use and enjoyment of the Delta and its wildlife, bearing on his standing. These facts are at least marginally relevant. The objections are OVERRULED.
Plaintiffs object to the following facts as immaterial to the present motion:
State Defendants have presented no authority suggesting that how Mr. Dillon came to be associated with the Coalition is relevant to Mr. Dillon's own standing as an individual plaintiff, who has bona fide protectable environmental interests. The relevance objection is SUSTAINED.
State Defendant has objected to all of the statements made by its own Federal Rule of Civil Procedure 30(b)(6) designee, Marty Gingras.
Defendant objects to the inclusion of Mr. Gingras' admission that "eliminating the size and catch limits for striped bass would reduce the striped bass population" on the basis that the admission is irrelevant, that Plaintiffs have misstated the testimony, that the admission is not binding, and that "Mr. Gingras did not testify as to the magnitude of the alleged effect, and did not testify that it was substantial." Doc. 123-2 at 6:14-18.
Defendant's relevancy objection is misplaced. Plaintiffs have alleged that the striped bass sport-fishing regulations artificially maintain and enhance the size of the striped bass population in the Delta, increasing striped bass predation on Listed Salmon. There is a serious dispute over the applicable legal standard under Section 9. State Defendant maintains that to violate section 9, the government regulation must have a significant impact on the species' chances of survival and recovery. Even if, arguendo, State Defendant's articulation of the legal standard is correct, Mr. Gingras' assertion that eliminating the catch limits for striped bass would reduce the striped bass population is relevant. It tends to establish a fact in dispute relative to causation. This objection goes to the weight of this generic evidence, not its admissibility. The objection is OVERRULED. State Defendant is not precluded from presenting additional evidence on this subject.
The same conclusion applies to the State's objections to the admission of this statement on the basis that "Mr. Gingras did not testify as to the magnitude of the alleged effect, and did not testify that it was substantial." The absence of testimony about the magnitude of the effect goes to its weight, not admissibility.
Defendant's next objection that Plaintiffs have misstated Mr. Gingras' testimony is unfounded. He testified:
Gingras Depo. at 612:1-9. The testimony is unambiguous.
State Defendant next argues that the deposition testimony of Mr. Gingras, the Rule 30(b)(6) designee for Defendant, is not binding. This objection is addressed above. State Defendant may offer explanatory evidence.
Defendant objects to this statement on the ground that Mr. Gingras was "speculating" and "guessing" as to the predation levels. Doc. 123-2 at 12:13-17. Mr. Gingras did state elsewhere that providing a specific percentage would be speculation, Gingras Depo. 388:23-389:2, 496:21-23, 533:15-21, 605:12-22. Nevertheless, after specific instruction from his attorney not to answer the question if he had to speculate, Gingras testified to a specific range:
Gingras Depo. 496:24-498:21.
Mr. Gingras was clearly instructed not to speculate, and he answered the question with an estimate based on his experience and study, by defining a range of percentage effects. This testimony is admissible. Other statements elsewhere in the record providing predation estimates go to the weight of his proffered predation figures, not their admissibility. The objection is OVERRULED.
The objections to these two statements are substantially the same as made to the statement in PSUF 2A. The same reasoning applies. The objections are OVERRULED.
State Defendant objects to the inclusion of Mr. Gingras' admission that striped bass predation "can influence viability of Central Valley Salmonoids" on the basis that Mr. Gingras testified that quantifying such effect would be speculation. Doc. 123-2 at 12:20-21. But, Mr. Gingras' was not asked to quantify the effect; he was only asked to confirm whether there was an "influence":
Gingras Depo. at 643:5-644:2. State Defendant's objection is OVERRULED.
Defendant objects to the statement that Mr. Gingras agreed "with findings by Linley & Mohr regarding the effects of striped bass predation on winter-run chinook salmon," arguing that Mr. Gingras did not "agree," but only that he found the statements by Linley & Mohr plausible. Doc. 123-2 at 13:1-4. This is a distinction without a difference, as Plaintiffs only relied on Mr. Gingras' statement to support its assertion that the conclusion of the Lindley & Mohr paper is not in dispute. This statement is admissible. The objection is OVERRULED.
State Defendant objects to the admission of this statement on the ground that Mr. Gingras stated he would be "speculating" when offering figures for striped bass predation and because Mr. Gingras did not testify as to the magnitude of any effect. Doc. 123-2 at 19:7-16, 32:27. This objection is OVERRULED because this statement does not offer any figures for striped bass predation nor does it address the magnitude of any predation effect. This is an expert opinion form the State's qualified witness.
State Defendant objects to the inclusion of this admission by Mr. Gingras' on the basis that Mr. Gingras stated it was one of "many" factors contributing to the decline, and that while it was his personal opinion, he did not know if it was the consensus view, but his opinion is stated with reasonable certainty as a scientist. Doc. 123-2 at 24:25-25:2. These concerns go to the weight of the evidence not its admissibility. The objection is OVERRULED.
Defendant objects to this admission by Mr. Gingras on the basis that the statement is irrelevant because the reference discusses mortality and does not address decline, suggesting that the two concepts are not equivalent. (Def.'s Objections at 25:3.) These concerns go to the weight of the evidence not its admissibility. The objection is OVERRULED.
Defendant objects to the inclusion of this admission by Mr. Gingras' on the basis that Mr. Gingras was responding to a "hypothetical with a hypothetical," but State Defendants fail to point to the hypothetical to which Mr. Gingras was originally responding. His answer was not
Gingras Depo. 643:5-644:15. State Defendant correctly point out that Mr. Gingras' testimony states that striped bass predation "can" influence the viability of the listed species, not that it "does." Doc. 123-2 at 25:4-7. However, this objection goes to the weight of the evidence, not its admissibility. The objection is OVERRULED.
Defendant objects to these statements by Mr. Gingras' on the basis that Mr. Gingras declined to estimate a magnitude for any such effect. Doc. 123-2 at 27:4-8. These objections go to the weight of this generic evidence, not its admissibility. The objections are OVERRULED. State Defendant may present explanatory, more specific evidence.
State Defendant first objects to these statements on the basis that Mr. Gingras stated he disagreed that the magnitude of any such effect would be substantial. Doc. 123-2 at 29:12-16 This objection goes solely to the weight of the evidence, not its admissibility. The objection is OVERRULED.
State Defendant also objects that Mr. Gingras stated he did not know how effective it would be to deregulate striped bass sportfishing. Doc. 123-2 at 32:21-26. Again, this objection goes to weight, not admissibility. While Mr. Gingras could
These objections are OVERRULED.
State Defendant objects to this statement on the ground that Mr. Gingras did not testify as to the magnitude of any effect. Doc. 123-2 at 29:27, 33:1-2. This objection, which goes to weight, not admissibility, is OVERRULED.
Defendant objects to the inclusion of statement on the grounds that Mr. Gingras stated he would be speculating when offering figures for striped bass predation and that he did not testify as to the magnitude of any effect. Doc. 123-2 at 30:1, 33:3. As discussed above, these objections go to weight not admissibility and are OVERRULED.
This statement is offered to support the factual assertion that "enjoining the enforcement of the striped bass sportfishing regulations would likely benefit [winter-run] and [] spring-run [] by reducing their risk of extinction." PSUF # 10(A). Defendant objects that PSUF 10A, a characterization of Mr. Gingras' testimony, does not support the general assertion in PSUF 10, because Mr. Gingras was responding to questions about Dr. Hanson's report, which assumed a hypothetical reduction in striped bass population, rather than injunction of the striped bass sportfishing regulations. Doc. 123-2 at 32:17-20. This objection goes to the weight of PSUF 10A, not its admissibility. The objection is OVERRULED.
In the final analysis, the extent of predation of protected salmonids by striped bass and the materiality of the benefit of a reduction of striped bass population is what is to be decided. Even without magnitude, Mr. Gingras' testimony directly addresses these issues.
Defendant has also objected to statements characterizing the testimony of its designated expert, Matthew Nobriga.
Defendant objects to the inclusion of Mr. Nobriga's predation estimates on the basis that Mr. Nobriga testified that making such an estimate would be "silly." (Def.'s Objections at 13:5-7.) However, Mr. Nobriga did offer his own predation estimates:
Nobriga Depo. at 119:1-120:2. Any statements Mr. Nobriga may have made elsewhere regarding the speculative nature of any predation estimates go to the weight of this evidence, not its admissibility. He has expressed his opinion by giving an estimate. The objection is OVERRULED.
Defendant objects to this statement on the basis that Mr. Nobriga indicated elsewhere he would be speculating as to whether the estimate is high or low, and that he disagreed with their findings regarding survival and extinction possibilities. Doc. 123-2 at 13:8-10. This statement does not offer Mr. Nobriga's own predation estimates. It merely confirms that Linley & Mohr's study used a sound scientific method in reaching their conclusions. See Nobriga Depo. at 110:25-111:2. The objection is OVERRULED, but this does not preclude State Defendant from presenting contrary predation estimates.
Defendant objects to this admission by Mr. Nobriga on the grounds that Mr. Nobriga's qualified his agreement with Dr. Hanson in various ways. Doc. 123-2 at 19:23-20:1, 30:2, 33:4-5. These qualifications do not completely undermine Mr. Nobriga's agreement with Dr. Hanson's conclusion:
Nobriga Depo. 259:24-260:6. Mr. Nobriga's qualifications go to the weight not the admissibility of his testimony. The objection is OVERRULED.
Defendant similarly objects to this characterization of Mr. Nobriga's testimony as "misstated" because Mr. Nobriga testified that he did not know whether the relationship would be proportionate. Doc. 123-2 at 20:2-3, 30:3, 33:6-7. This objection, which goes to weight not admissibility, is OVERRULED.
State Defendant has also objected to a number of documents.
State Defendant objects on several grounds to the admission of a CDFG memo authored by Don Stevens and Glen Delisle, two key CDFG biologists.
State Defendants objection on relevancy grounds is unfounded, as this is a CDFG document analyzing the impact of eliminating the striped bass sport-fishing regulations is clearly relevant to this case.
State Defendants also object that the document "does not reflect the official position of the State Defendant." This objection, which is unsupported by any caselaw, has no bearing on document's admissibility.
State Defendant's objection that the document is unauthenticated is also unfounded, because, as a CDFG document produced by Defendant in response to a discovery request, the document has been authenticated by Defendant. See Orr v. Bank of Am., 285 F.3d 764, 777 n. 20 (9th Cir.2002) (confirming that documents produced in response to discovery are deemed authentic when offered by the party-opponent).
Finally, State Defendant asserts "CDFG employees testified they disagreed with any statement in the memo as to magnitude." Doc. 123-2 at 6:20-23. But, the existence of any such contrary testimony goes to the weight of this evidence, not its admissibility.
The objections to this document are OVERRULED.
Defendant has objected that the document is not relevant to this litigation on the grounds that the increase in striped bass catches associated with changed sportfishing regulations would not necessarily equate to a reduced striped bass population. This objection goes to weight, not admissibility.
Defendant has also objected that the document lacks foundation. Although it is not clear, it appears that State Defendants advance the same authentication of 94 objection rejected above.
The objections to this document are OVERRULED.
Defendant's relevance objection is unfounded, because this is a CDFG document analyzing the impact of eliminating the striped bass sport-fishing regulations, a subject that is relevant to this case.
State Defendant also objects to Plaintiffs' reliance on a statement in the conservation plan that "it is reasonable to assume that predation on winter-run chinook salmon... would decrease roughly in proportion to whatever decline occurred in striped bass abundance due to regulation changes" because the report allegedly lacks foundation and does not offer support for this statement. Doc. 123-2 at 20:16-17.
The foundational objection has been rejected. As to the objection that the document lacks internal support for this assertion, this goes to weight not admissibility.
The objections to this document are OVERRULED.
Defendant also objects to the inclusion of Donald Koch's own interrogatory response
That the interrogatory response does not estimate the magnitude of the impact on the striped bass population goes to its weight, not its admissibility.
The objections to this document are OVERRULED.
Defendant also objects to the inclusion of Mr. Gingras' statement that eliminating the striped bass regulations "would reduce" the population on the basis that the e-mail also notes "changes in Delta habitat" as "the fundamental problem for native fish species." Doc. 123-2 at 7:15-16. The fact that the email identifies an alternative source of mortality as the "fundamental problem" goes to the weight of the statement, not its admissibility.
The objections to this document are OVERRULED. State Defendant may present the context within which the statement is made.
Defendant objects to Plaintiffs' reliance on the statement by State Defendant in its own Biological Assessment that the sportfishing regulations maintain striped bass abundance at a greater level than if fishing were unregulated, on the ground that the admission is irrelevant since the assessment gives no estimate of magnitude. Doc. 123-2 at 7:20-21. This objection, which goes to weight, not admissibility, is OVERRULED. The magnitude may be relevant to the ultimate outcome of Plaintiffs' claims, and State Defendants may present evidence that clarifies its own general statements about the effect of striped bass abundance.
State Defendant raises the same objection to Plaintiffs' reliance on statements in the Biological Assessment that: (1) the result of maintaining striped bass abundance at a greater level "is greater predation on the species of concern," arguing that the statement is irrelevant because the environmental document does not provide any estimate of magnitude, Doc. 123-2 at 20:14; and (2) that eliminating striped bass regulations "would further depress the striped bass population and reduce predation on winter-run chinook salmon," Doc. 123-2 at 20:15. The result is the same. These objections, which go to weight not admissibility, are OVERRULED.
Defendant also objects to Mr. Nobriga's statement, in a peer reviewed scientific article, that "striped bass likely remains the most significant predator of Chinook salmon."
State Defendants argue that the statement is hearsay and lacks foundation. But, the statement was included in a report drafted by State Defendant's expert, identified and relied on by the Defendant's expert in reaching his opinions, see Doc. 124, Exh. A, October 1, 2009 Report by Matthew L. Nobriga ("Nobriga Report"), and was produced by Defendant in response to discovery. Therefore, Defendant's foundation and hearsay objections are meritless. See Orr v. Bank of Am.,
State Defendants also argue that the statement is irrelevant because even if the striped bass is the "most significant predator of Chinook salmon, this does not mean that: (1) they are a significant predator; (2) predation is a significant cause of salmon mortality; or (3) eliminating striped bass will reduce salmon mortality." Doc. 123-2 at 13:13-18. This objection goes to the weight, not the relevance of the statement, which provides some support for Plaintiffs' theory that striped bass prey on Chinook salmon.
State Defendant further objects on the basis of relevancy because the report only discusses striped bass as a predator and does not discuss decline of the species overall. Doc. 123-2 at 25:13-14. This objection goes to weight, not relevance, as there is clear relevance to evidence that the striped bass prey on the Listed Species.
Defendant also objects to Plaintiffs' reliance on a scientific, peer-reviewed article that concludes that "the current striped bass population of roughly 1 × 10 δ 6 adults consumes about 9% of winter-run chinook salmon outmigrants," asserting that the statement is hearsay, lacks foundation, and that Defendant's expert's report disputes this modeling. Doc. 123-2 at 13:19-14:3, 33:10.
The foundation objection is without merit because at least one of Defendant's experts discusses this document at length. See Doc. 124, Exh. A, Nobriga Report. Because experts may rely on hearsay, that objection is also without merit. The objection that the report is disputed by Defendant's expert goes to weight, not admissibility.
The same applies to State Defendant's objection that the report is irrelevant because it only discusses striped bass predation as a "risk factor" and does not discuss decline of the population overall. Doc. 123-2 at 25:15-16. This goes to weight, not relevance.
The objections are OVERRULED.
State Defendant objects to Plaintiffs' reliance on a report prepared by the National Marine Fisheries Service ("NMFS"), arguing that the report's statement that "predation of Chinook salmon and steelhead from introduced species such as striped bass and black bass [is an important stressor]" is hearsay and irrelevant because it fails to discuss decline of the species overall. Doc. 123-2 at 25:9-10. The relevancy objection is OVERRULED, as it goes to the weight, not admissibility of this document.
The hearsay objection is overcome by an expert's right to rely on hearsay, as well as by Federal Rule of Evidence 803(8), which applies to "[r]ecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report. . . ." The Recovery Plan, which is a policy document, describes "matters observed pursuant to a duty imposed by law," the evaluation of the status of listed species under the jurisdiction of NMFS. Documents such as the Recovery Plan are also routinely the subject of judicial notice under Federal Rule of Evidence 201.
The same analysis applies to State Defendant's objections to a statement in the Recovery Plan that calls for implementation
State Defendant's objection to Plaintiffs' reliance on the NMFS Recovery Plan for the truth of the matters asserted therein is OVERRULED.
Central Delta's objections to Plaintiffs' Statement of Undisputed Material Facts incorporate the arguments made by the State Defendants. See Doc. 125-2. Plaintiffs' argue that Central Delta's objections should be stricken on the grounds that they violate the May 28, 2008, 2008 WL 2237038, Order strictly limiting Central Delta's intervention in this case to "issues about which they can provide unique information and/or arguments." Doc. 32 at 11. Here, the only unique issue Central Delta expressed any intention to address is the effect of the CVPIA on State Defendant's liability. Central Delta's objections have nothing to do with their CVPIA argument. For this reason and because the objections are cumulative of the State Defendant's objections, Central Delta's objections are not considered. They add nothing and have been decided by the rulings on the State Defendant's objections.
In support of its motion for summary judgment, Central Delta offers the Declaration of Robert Souza, who opines about the causes of harm to the Listed Species. Mr. Souza claims no expertise that qualifies him to opine on these subjects. Nevertheless, he opines, based on his years of fishing the Delta, that the general decline in delta smelt "is not due to striped bass predation, but instead is attributable to excessive export pumping from the Delta," Doc. 125-4 at ¶ 9, and that the "construction and excessive operation of the massive projects to divert water in the south Delta for agriculture and other human uses have had a tremendously negative impact on striped bass, [the delta smelt], and other fish in the Delta." Id.
Plaintiff objects that Mr. Souza's Declaration is inadmissible as improper lay opinion. Under Federal Rules of Evidence 701, lay opinions cannot be "based on scientific, technical, or other specialized knowledge within the scope of Rule 702." The purpose of this rule is to prevent a party from offering an expert opinion "in lay witness clothing," and thereby evading Federal Rules of Evidence 702's requirements and the corresponding disclosure requirements under Rule 26. See United States v. Conn., 297 F.3d 548, 553 (7th Cir.2002). Mr. Souza's opinions regarding the cause of the decline in delta smelt and the impacts of water diversion from the Delta are just that, as they require scientific, technical, or specialized knowledge that exceed the scope of common experience. E.g., Certain Underwriters at Lloyd's, London v. Sinkovich, 232 F.3d 200, 204-06 (4th Cir.2000) (error to allow lay witness to answer questions on matters exceeding scope of common experience). Mr. Souza's declaration is STRICKEN.
Central Delta requests that judicial notice be taken of 10 documents that are public records. Doc. 125-3. Plaintiffs request that judicial notice be taken of a U.S. Fish and Wildlife Service ("FWS") webpage and a portion of a March 3, 2010 California Fish and Game Commission
Standing is a judicially created doctrine that is an essential part of the case-or-controversy requirement of Article III. Pritikin v. Dept. of Energy, 254 F.3d 791, 796 (9th Cir.2001) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). "To satisfy the Article III case or controversy requirement, a litigant must have suffered some actual injury that can be redressed by a favorable judicial decision." Iron Arrow Honor Soc. v. Heckler, 464 U.S. 67, 70, 104 S.Ct. 373, 78 L.Ed.2d 58 (1983). "In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).
To have standing, a plaintiff must show three elements.
Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130 (internal citations and quotations omitted).
The Supreme Court has described a plaintiff's burden of proving standing at various stages of a case as follows:
Id. at 561, 112 S.Ct. 2130; see also Churchill County v. Babbitt, 150 F.3d 1072, 1077 (9th Cir.1998).
A plaintiff is not required to prove that he would succeed on the merits to summarily adjudicate his standing to sue. Farrakhan v. Gregoire, 590 F.3d 989, 1001 (9th Cir.2010) (granting summary judgment and noting that "[w]hether Plaintiffs can succeed on their [ ] claim is irrelevant
Plaintiffs suggest that, "even in the face of conflicting evidence," Mr. Dillon will satisfy his burden of proof so long as he shows a "substantial probability that [he] has been injured, that the defendant caused [his] injury, and that the court could redress [the] injury." Doc. 116 at 15 (quoting Sierra Club & Envtl. Tech. Council v. EPA, 292 F.3d 895, 899 (D.C.Cir. 2002)). This is misleading. Each element of standing "must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of litigation." Lujan, 504 U.S. at 561, 112 S.Ct. 2130. Unlike in Lujan, where the plaintiff was the non-movant whose factual submissions on summary judgment were "taken to be true," id., here, Mr. Dillon, as the moving party, has the burden of proof on an issue at trial and must "affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party." Soremekun, 509 F.3d at 984. At the summary judgment stage, Mr. Dillon can satisfy his burden only by showing that the undisputed evidence establishes that no reasonable trier of fact could find that he has not satisfied the relevant legal standard applicable to each element of the standing inquiry.
Dee Dillon first must establish that he has suffered an injury in fact, which Lujan defines as "an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not `conjectural or hypothetical.'" 504 U.S. at 560, 112 S.Ct. 2130 (internal citations omitted).
The Supreme Court recently examined the "injury in fact" component of constitutional standing in Summers v. Earth Island Institute, ___ U.S. ___, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009), addressing whether environmental organizations had standing to challenge a U.S. Forest Service regulation that exempted small firerehabilitation and timber-salvage projects from the Service's notice, comment, and appeal process. Id. at 1147. Although the plaintiffs originally challenged the regulations and an individual salvage sale under the regulations, the dispute as to the individual salvage sale was subsequently settled, limiting the lawsuit to the facial challenge. Id. at 1148. Noting the language in Lujan that "it is substantially more difficult to establish" standing when "the plaintiff is not himself the object of the government action," Summers concluded that the plaintiffs' affidavits failed to establish that the plaintiffs had suffered the concrete and particularized injury required of constitutional standing. Id. at 1149 (quoting Defenders of Wildlife, 504 U.S. at 562, 112 S.Ct. 2130).
The Summers Court reviewed a plaintiff's affidavit alleging that he suffered injury in the past from development on Forest Service land. The Court rejected this factual claim as a basis for standing "because it was not tied to application of the challenged regulations, because it does not identify any particular site, and because it relates to past injury rather than imminent and future injury that is sought to be enjoined." Id. at 1150. It was not sufficient for plaintiff to assert that he has visited many National Forests and plans to visit other unnamed National Forests in the future, because although "[t]here may be a chance, [it] is hardly a likelihood, that [plaintiff's] wanderings will bring him to a parcel about to be affected by a project unlawfully subject to the regulations." Id.
The Summers plaintiff did refer specifically to a series of projects in the Allegheny
To satisfy the injury-in-fact component of Article III standing Summers requires environmental plaintiffs to: (1) identify a "particular site" affected by the challenged action that they intend to visit; and (2) provide evidence of "concrete plans," including specific dates, to visit those such sites. Plaintiffs bear the burden of showing the "likelihood" that they will visit such sites. See id. at 1150-51. In other words, there must be a "geographic nexus between the individual asserting the claim and the location suffering an environmental impact." Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934, 938 (9th Cir.2005). This geographic nexus must be site-specific. Citing Summers and Lujan, the Seventh Circuit observed: "When governmental action affects a discrete natural area, and a plaintiff merely states that he uses unspecified portions of an immense tract of territory, such averments are insufficient to establish standing." Pollack v. United States, 577 F.3d 736, 742 (7th Cir.2009). However, "repeated recreational use itself, accompanied by a credible allegation of desired future use, can be sufficient, even if relatively infrequent, to demonstrate that environmental degradation of the area is injurious to that person." Ecological Rights Foundation v. Pacific Lumber Co., 230 F.3d 1141, 1149 (9th Cir.2000). Mr. Dillon does not need to show actual harm, as a mere "increased risk of harm can itself be injury in fact sufficient for standing." Id. at 1151.
Although Plaintiffs' previous motion for summary judgment on the issue of standing was denied without prejudice on the ground that there were material factual disputes relevant to causation and redressibility, Mr. Dillon was found to have satisfied the injury-in-fact requirement:
Doc. 85 at 29-31.
This ruling is not dispositive of the challenge to standing here, because a plaintiff must retain standing throughout the litigation. The case-or-controversy requirement of Article III of the U.S. Constitution "subsists through all stages of federal judicial proceedings, trial and appellate." Lewis v. Continental Bank, 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). "To qualify as a case fit for federal-court adjudication, an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed." Davis v. Federal Election Commission, 554 U.S. 724, 128 S.Ct. 2759, 2768, 171 L.Ed.2d 737 (2008) (internal quotation and citation omitted). "[T]he requirement that a claimant have `standing is an essential and unchanging part of the case-or-controversy requirement of Article III.'" Id. (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130). "The parties must continue to have a personal stake in the outcome of the lawsuit." Lewis, 494 U.S. at 478, 110 S.Ct. 1249 (internal quotations and citations omitted).
For the purposes of standing, an environmental plaintiff, such as Mr. Dillon, demonstrates injury in fact if he uses the affected area and is a person "for whom the aesthetic and recreational values of the area will be lessened by the challenged activity." Laidlaw, 528 U.S. at 183, 120 S.Ct. 693.
Mr. Dillon has visited the Sacramento-San Joaquin Delta more than 200 times since 2001, including 5 visits in 2008-09. During his visits, Mr. Dillon spent several hundred days in the Delta engaging in numerous recreational activities, including boating, fishing, wildlife photography, swimming, snorkeling, kayaking, and viewing wildlife, including the listed salmon and steelhead. See Rubin Opp'n Decl., Doc. 119-3, Exh. 2 ("First Dillon Depo.") at 49:3-52:13, 25:19-26:2, 26:21-27:2; Dillon
During his fishing trips in the Delta, Mr. Dillon fishes for a variety of fish, including striped bass, steelhead, and salmon, when doing so is legal. First Dillon Depo. at 33:6-10, 34:8-10, 35:25-36:8, 73:24-74:6, 76:2-6; First Dillon Decl., Doc. 114-4 ¶ 5.
Mr. Dillon enjoys viewing the Delta's native wildlife, and has viewed and taken photos of salmon both in the Delta and in rivers upstream of the Delta. First Dillon Depo. at 55:12-18, 60:11-23, 103:16-104:13; First Dillon Decl. ¶¶ 3-4; Dillon Opp'n Decl. ¶¶ 1-2.
While Mr. Dillon tries to enjoy the aesthetic benefits of the Delta and its native fish, the depleted numbers of the Listed Species make it more difficult to view and take pictures of them. First Dillon Depo. at 58:2-17; First Dillon Decl. ¶¶ 3-4, 6; Dillon Opp'n Decl. 1-2, ¶¶ 4.
Mr. Dillon's alleges injuries to his recreational interests, including boating, swimming, fishing, kayaking, skiing, wakeboarding, jet-skiing, snorkeling, watercamping, and wildlife photography. SDUMF # 9. It is undisputed that Mr. Dillon admitted that, of his recreational interest, all but his interests in fishing and wildlife photography have not been impaired by the status of the listed species. SDUMF # 13.
Mr. Dillon clearly claims that his ability to fish for salmon has been adversely affected by the striped bass sport fishing regulation. Dillon Interrog. Resps, # 3 at 8:10-18. In particular, he cites the recent restrictions on recreational salmon fishing imposed in 2009. Id. However, Mr. Dillon has admitted that he sold his boat in January 2008. SDUMF # 35. Since then, his visits to the delta have dropped considerably, from approximately 120 days a year, to three or four times in 2008 and once in 2009. SDUMF ## 39-40. However "repeated recreational use itself, accompanied by a credible allegation of desired future use, can be sufficient, even if relatively infrequent, to demonstrate that environmental degradation of the area is injurious to that person." Ecological Rights Foundation v. Pacific Lumber Co., 230 F.3d 1141, 1149 (9th Cir.2000). The relative frequency of Mr. Dillon's visits to the Delta is not fatal to his standing.
State Defendant points out that because the salmon at issue in this litigation—the Sacramento River winter-run and Central Valley spring-run—are listed as endangered or threatened, the only salmon that Mr. Dillon can fish for legally is fall-run Chinook.
Mr. Dillon stated at his deposition that because of the imperiled status of the Listed Species, "if I were to take-or trying to take pictures of salmon it would be more difficult because there are fewer." First Dillon Depo. at 58:3-17; see also Dillon Opp'n Decl. ¶ 2. Mr. Dillon repeatedly stated, when he goes to the Delta, he goes
In its notice withdrawing its motion for summary judgment, State Defendant asserts that "the late filed declaration of Mr. Dillon and his deposition testimony crate a triable issue of material fact" as to Mr. Dillon's standing, suggesting that Mr. Dillon's testimony regarding his desire to return to the Delta to photograph wildlife is not credible. State Defendant's argument regarding Mr. Dillon's credibility appears to focus on the variable frequency of Mr. Dillon's visits to the Delta:
Doc. 162 at 2-3.
This alone does not create a credibility issue that must be resolved at trial, because even relatively infrequent recreational use is sufficient to establish standing. Ecological Rights Foundation v. Pacific Lumber Co., 230 F.3d 1141, 1149 (9th Cir.2000) ("recreational use itself, accompanied by a credible allegation of desired future use, can be sufficient, even if relatively infrequent, to demonstrate that environmental degradation of the area is injurious to that person."); see also Sierra Club v. Franklin County Power of Ill., LLC, 546 F.3d 918, 925 (7th Cir.2008) (affirming summary judgment in favor of plaintiff after finding that plaintiff had standing because she visited area every other year); Bensman v. U.S. Forest Serv., 408 F.3d 945, 962-63 (7th Cir.2005) (plaintiff had standing to challenge a proposed project although he had visited the project area only six times over 20 years and planned to return in "winter or spring").
Mr. Dillon's interest in photographing salmon is a concrete recreational interest that may be impaired by State Defendant's actions.
Mr. Dillon also alleges harm to his aesthetic interests in the Delta. He claims to have derived a sense of "appreciation and satisfaction" when he views the listed species. Dillon Interrog. Resps. # 3 at 6:1-2. At his deposition, Mr. Dillon specifically indicated his enjoyment in viewing wildife:
First Dillon Depo. at 60:11-23.
State Defendant argues that standing is not supported by Mr. Dillon's general claim that he has been harmed because the striped bass sportfishing regulations negatively impact his interest in "a biosystem that is intact and healthy," SDUMF No. 33, citing Center for Biological Diversity v. Kempthorne, 588 F.3d 701, 707 (9th Cir. 2009), which in turn relies on Summers, 129 S.Ct. at 1149. Summers is more nuanced than State Defendant suggests. The Supreme Court held: "While generalized harm to the forest or the environment will not alone support standing, if that harm in fact affects the recreational or even the mere esthetic interests of the plaintiff, that will suffice." 129 S.Ct. at 1149.
Mr. Dillon claims that, through his recreational activities in the Delta, he has gained "significant exposure" to the Sacramento River winter-run chinook salmon, Central Valley spring-run chinook salmon, Central Valley steelhead, and delta smelt. First Dillon Decl. at ¶ 3. This is not entirely accurate. Mr. Dillon has never seen a steelhead, except perhaps at a hatchery or in a picture, SDUMF # 23; he has only ever seen a delta smelt at a salvage facility or in a container on a trawl vessel, SDUMF # 25; and he has only ever seen three salmon in the Delta, all of which were dead or dying, SDUMF # 11. But, Mr. Dillon's limited success at viewing the
Likewise, Mr. Dillon's reduced exposure to the Delta in recent years as a result of his personal and financial decision to sell his boat does not defeat his claim of injury in fact. See Ecological Rights Foundation, 230 F.3d at 1149 ("recreational use itself, accompanied by a credible allegation of desired future use, can be sufficient, even if relatively infrequent, to demonstrate that environmental degradation of the area is injurious to that person.").
State Defendant asserts that even if Mr. Dillon actually saw a delta smelt in the water, he admits he would not be able to identify it. SDUMF ## 27-29. Mr. Dillon also cannot tell one run of salmon from another, and therefore cannot determine whether the three salmon he saw were among the listed species. SDUMF ## 24. While this could jeopardize Mr. Dillon's standing claim if Mr. Dillon was asserting an interest in studying or cataloging members of the Listed Species, it is not fatal to his claim of aesthetic injury. See Int'l Ctr. for Tech. v. Johanns, 473 F.Supp.2d 9, 22 (D.D.C.2007) (finding that plaintiffs had standing even though they could not "tell the difference between a genetically-engineered plant and a resident plant," because "[p]laintiffs' alleged interest is in viewing native fauna, and the relevant inquiry is whether injury to that interest is probably or has occurred, regardless of whether that interest is visible.").
The uncontradicted evidence is that, even though his visits have become less frequent in recent years and his encounters with the Listed Species have been few and far between, Mr. Dillon (1) has viewed salmon both in the Delta and in rivers upstream of the Delta and (2) has sought to view listed salmon and steelhead on many occasions. See Dillon Opp'n Decl. ¶¶ 1-2; Dillon Interrog. Resps. at 5:26-6:2, 7:26-8:1 (Mr. Dillon "has attempted to have, and intends to continue having significant and repeated exposure to the" Listed Species); First Dillon Depo. at 49:3-22, 55:10-14, 103:16-104:13.
Mr. Dillon testified at his first deposition that he has standing plans to visit the Delta on a minimum of three days per year, July 4th, Labor Day, and around Christmas. SDSUF # 49. However, it is undisputed that, despite his previous assertions of intent to travel to the Delta both over the Labor Day weekend and in December 2009, Mr. Dillon visited the Delta only one time in 2009 to photograph western pond turtles and observe other wildlife. Dillon Supp. Decl. at 147:23-24. Mr. Dillon explained that his plans changed. Id. at 146:17-19.
Mr. Dillon's testimony at his supplemental Deposition demonstrates that he possesses concrete plans to visit the Delta in the future. In fact, he had plans to fish on the Sacramento River the day after his supplemental deposition. Dillon Supp. Depo. 173:14-15. He also planned on joining some friends on their boat "one day over the three-day [Labor Day] holiday in the neighborhood of Willow Berm," where they would "probably be anchored offshore somewhere, to do some fishing, some wildlife viewing, some photography, hopefully catch a glimpse of an endangered species
The undisputed evidence establishes that Mr. Dillon has demonstrated injury in fact. As to this prong of standing, Plaintiffs' motion for summary adjudication is GRANTED.
The July 16, 2009, 2009 WL 2151842, Decision summarizes the relevant legal standard:
Doc. 85 at 31-34 (footnotes omitted).
The July 16, 2009 Decision concluded that Plaintiffs were not entitled to summary judgment on the causation prong of standing:
Id. at 34-36 (footnote omitted).
Plaintiffs maintain that any dispute over whether there is a measurable link between striped bass abundance and Listed Species mortality was "answered conclusively" because Marty Gingras, a CDFG scientist, and Mr. Matthew Nobriga "admit that (1) increasing striped bass abundance increases striped bass predation on the Listed Salmon and (2) that reducing striped bass predation would benefit the populations of the Listed Salmon." Doc. 116 at 19.
It is undisputed that Mr. Gingras and Mr. Nobriga both stated that the following general facts were true:
But, as discussed above, these statements may be qualified by other evidence in the record. Most obviously, State Defendant disputes the significance of striped bass predation on winter-run and spring-run. See, e.g., State Defendant's Responses to PSUF # 3 (pointing out that Mr. Gingras testified repeatedly that offering figures for striped bass predation on the listed Species was speculation, Gingras Depo. 388:23-389:2, and that Mr. Nobriga similarly stated that trying to make a predation estimate would be like "pulling numbers out of the air," Nobriga Depo. 119:13-18).
Additionally, State Defendant materially disputes each report and expert opinion offered by Plaintiffs in support of Plaintiffs' estimates of the significance of striped bass predation on the Listed Species. For example, Plaintiffs rely on the expert report of Dr. Charles H. Hanson, which estimates a striped bass predation rate of 21% on winter-run. See PSUF #3(L). State Defendant first point out that Dr. Hanson's report relies on a report by Dr. David H. Bennett, which State Defendant maintains is "flawed" and its conclusions "disputed" as follows:
State Defendant's Response to PSUF # 2.
Dr. Hanson's conclusion is disputed by Mr. Nobriga, who states:
State Defendant's Response to PSUF #3, Doc. 194, Ex. E. The State Defendant's response continues:
Id.
All experts agree that striped bass predation results in mortality of at least 5% of the listed salmonid populations each year. PSUF ## 3 & 7. However, this is not equivalent to a finding that the invalidation of the striped bass sportfishing regulations would similarly increase listed salmonid mortality by any measurable quantity. As discussed above, given that the Section 9 claim in this case focuses on a habitat modification that affects the entire population of the listed species, section 9 requires proof of some population-level effect. For causation, population-level mortality for the species must be caused by increased striped bass populations resulting from the enforcement of the sportfishing regulations.
For the purposes of standing, a plaintiff need not prove success on the merits. See Envtl. Def. Ctr. v. EPA, 344 F.3d at 867 ("A plaintiff who shows that a causal relation is `probable' has standing, even if the chain cannot be definitively established."); Ocean Advocates, 402 F.3d at 860 (while the causal connection cannot "be too speculative, or rely on conjecture about the behavior of other parties, [it] need not be so airtight ... as to demonstrate that the plaintiffs would succeed on the merits."). The summary judgment standard requires that the facts be viewed in a light most favorable to the non-moving party, in this case the State Defendant. Viewed in this light, the facts do not demonstrate that it is probable that State Defendant's conduct has a significant population-level effect on the listed species. To the contrary, as was the case in the first round of summary judgment motions, the evidence, including the Nobriga Declaration, raises a genuine dispute about the plausibility of Plaintiffs' causal theory.
Plaintiffs' motion for summary adjudication on the causation and redressibility prongs of standing is DENIED.
Plaintiffs affirmatively move for summary judgment that State Defendant's enforcement of the striped bass sportfishing regulations violates ESA § 9 by taking of Listed Salmonids without a take permit. This motion must be denied for the same reasons that the motion for summary adjudication on the standing and redress prongs of standing is denied. There are disputes of material fact regarding causation (i.e. whether State Defendant's conduct causes harm by habitat modification in violation of ESA § 9's take prohibition).
Plaintiffs' motion for summary judgment on the issue of Section 9 liability is DENIED.
Plaintiffs seek summary judgment that the CVPIA does not provide a legitimate affirmative defense in this case. Central Delta's CVPIA defense was addressed in detail in the July 16, 2009 Decision:
Doc. 85 at 19-26 (emphasis added, footnotes omitted).
In the present motion for summary judgment, Plaintiffs maintain that Central
As the July 16, 2009 Decision articulated, a later-enacted, more specific statute trumps an earlier one insofar as they conflict. Central Delta maintains that the CVPIA's striped bass doubling goal, which equates to a goal of 2,500,000 fish, is just such a later-enacted, more specific statute that trumps the earlier, more general ESA. The statutory picture is more complicated than Central Delta acknowledges. The CVPIA protects anadromous species, defined by the statute to include striped bass and the Listed Salmonids, by, among other things, setting a goal of doubling the populations of all of these species. In addition, the CVPIA itself indicates that its provisions should be implemented in compliance with the ESA. This presents a unique issue of statutory interpretation.
Plaintiffs own briefs are equivocal on this factual issue. On the one hand, Plaintiffs' point to evidence suggesting that the goal of doubling the striped bass population is incompatible with the goal of doubling the listed salmonid populations. See Independent Peer Review of the CVPIA, Rubin Decl., Doc. 115, Ex. 47, at 22 ("The stated goal to increase the production of both native salmonids and exotic predators/competitors (e.g., striped bass and shad) is internally inconsistent."); id. at 47 ("programs that encourage exotic predatory species such as striped bass (e.g., California Fish and Game and the CVPIA itself) clearly conflict with CVPIA and ESA mandates to protect and rebuild depressed stocks of native salmonids ...."). This suggests that enforcement of the CVPIA's striped bass regulations is incompatible
The significance of this evidence is in dispute. As Central Delta points out "striped bass and the salmonids co-existed in the Delta for more than a century, and it has not been shown that [a similar coexistance] cannot be achieved." Doc. 125 at 14 (noting that FWS adopted the Restoration Plan to restore both striped bass and salmonids pursuant to the direction of the CVPIA). Central Delta also points out that, despite the opinions of the review panel, Congress expressed its unconditional intent to restore both striped bass and salmonids.
On the other hand, in an attempt to rebut Central Delta's argument that Plaintiffs' request to use the ESA to invalidate the striped bass sportfishing regulations sets up a direct conflict between the CVPIA and the ESA, Plaintiffs insist that they are not seeking to invalidate the CVPIA or even the Defendant's ability to enforce striped bass regulations per se. Rather, Plaintiffs maintain that they only seek State Defendant's compliance with its ESA obligations, which can be achieved by either securing incidental take authorization from the appropriate federal wildlife agencies (NMFS or U.S. Fish and Wildlife Service) pursuant to section 7 or 10 of the ESA (16 U.S.C. §§ 1536, 1539), or by halting enforcement of the striped bass sport-fishing regulations.
Plaintiffs raise two additional, related arguments in an attempt to prove that Central Delta's CVPIA defense should fail as a matter of law. First, Plaintiffs point out that the CVPIA only authorizes and directs actions by the Secretary of the Interior; it does not purport to authorize or direct any actions by the California Fish and Game Commission or CDFG. See CVPIA § 3406. But, Congress expressly acknowledged the role of CDFG in maintaining and doubling fish populations. For example, the Secretary of the Interior is required to coordinate with CDFG to benefit anadromous fish: "As needed to achieve the goals of this program ... Instream flow needs to be determined based on the recommendations of the U.S. Fish and Wildlife Service after consultation with the California Department of Fish and Game." CVPIA § 3406(b)(1)(B). Likewise, 800,000 acre feet of water are to be "managed pursuant to conditions specified by the U.S. Fish and Wildlife Service after consultation with the Bureau of Reclamation and the California Department of Water Resources and in cooperation with the California Department of Fish and Game." § 3406(b)(2)(B); see also § 3406(c)(1) (requiring development of a plan to "address fish, wildlife, and habitat concerns in the San Joaquin River ... in cooperation with the California Department of Fish and Game....").
Second, Plaintiffs note that the striped bass sport-fishing regulations pre-date the enactment of the CVPIA, suggesting that they could not have been adopted pursuant to the CVPIA's authority and therefore, even if the CVPIA trumps the ESA, this should not shield the striped bass sportfishing regulations from compliance with the ESA. Plaintiffs fail to acknowledge that the regulations are adopted on a triennial basis, and were recently readopted by the California Fish and Game Commission.
In the final analysis, the evidence suggests it is possible, but not certain, that enforcement of the ESA in this case can be harmonized with implementation of the CVPIA. The current record is insufficient to resolve this mixed question of fact and law on summary judgment.
Plaintiffs' motion for summary judgment on the CVPIA affirmative defense is DENIED.
For the reasons set forth above, Plaintiffs' motion for summary adjudication is GRANTED as to the injury-in-fact prong of Article III standing, but denied as to all other aspects of standing. Plaintiffs' motion for summary judgment is also DENIED as to Section 9 liability and the CVPIA affirmative defense.
A further scheduling conference is set for Tuesday, July 27, 2010 at 9:00 a.m. in Courtroom 3(OWW). Counsel may appear telephonically.
SO ORDERED.
Sweet Home, 515 U.S. at 699-700, 115 S.Ct. 2407.
In Marbled Murrelet, an environmental group asserted that the defendant's logging activities would result in the take of listed marbled murrelets. 83 F.3d at 1062. After finding that the logging activities would likely "harass" and "harm" the marbled murrelet, the district court issued an injunction. Id. at 1063. The defendant appealed, arguing that plaintiff failed to prove actual harm to an individual bird. Id. at 1062. The Ninth Circuit rejected the defendant's argument, finding that "a showing of a future injury to an endangered or threatened species is actionable under the ESA," and that "[a] reasonably certain threat of imminent harm to a protected species is sufficient for issuance of an injunction under section 9 of the ESA." Id. at 1064-66. The Appeals Court found undisputed evidence that the marbled murrelet was located within the logging area, and that the logging activities "would likely harm marbled murrelets by impairing their breeding and increasing the likelihood of attack by predators on the adult murrelets as well as the young." Id. at 1067-68 (emphasis added). Accordingly, the Ninth Circuit affirmed the district court's injunction, as "there was a reasonable certainty of imminent harm to [the marbled murrelet] from [defendant's] intended logging operation." Id. at 1068. State Defendant relies on American Bald Eagle v. Bhatti, 9 F.3d 163, 166 (1st Cir.1993), which held:
But, this First Circuit case directly conflicts with the Ninth Circuit's subsequent holding in Marbled Murrelet. Marbled Murrelet controls.
H.R. 576, Part 1, 102nd Cong. (June 16, 1992), at 17-19.
Doc. 126, Ex. D (excerpts from Volume 2 of FWS's Working Paper on Restoration Needs, Habitat Restoration Actions to Double Natural Production of Anadromous Fish in the Central Valley California), Vol. 2, p. 2-VIII-23.
