Coalition for a Sustainable Delta et al v. Carlson et al, No. 1:2008cv00397 - Document 168 (E.D. Cal. 2010)

Court Description: MEMORANDUM DECISION re Plaintiffs' motion for summary judgment/adjudication 114 , signed by Judge Oliver W. Wanger on 7/21/10. Further scheduling conference set for 7/27/10 at 9:00 a.m. in Courtroom 3 (OWW). Counsel may appear telephonically. (Coffman, Lisa)

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Coalition for a Sustainable Delta et al v. Carlson et al Doc. 168 1 2 3 4 5 6 UNITED STATES DISTRI CT CO URT 7 FOR THE EASTERN DISTRICT OF C ALIFORNIA 8 9 10 COALITIO N FOR A SUST AINABLE DELTA, e t al., 13 14 15 16 17 18 19 20 21 MEMORANDUM DEC ISION RE PLAINTIFFS MO TION FOR SUMMARY JUDGME NT (DO C. 114) Plaintiff s, 11 12 1:08-cv-00397 OWW GSA v. JOHN MCC AMMAN, in hi s official capacity as the Dire ctor of the Californ ia Departmen t of Fish and Game, Defendant , CENTRAL DELTA WATER AGENCY, et al., Defendant-Intervenors, CALIFORN IA SPORTFISI NG PROTECTION ALLIANCE , et a l., Defendant-Intervenors. 22 23 24 I. INTRODUCTION This cas e concerns e nforcement by the California 25 Departme nt of Fish a nd Game ( CDFG ), through its 26 Director John McCamm an, ( State Defendant ) of st ate 27 sportfis hing regulat ions designed to protect stri ped bass 28 1 Dockets.Justia.com 1 populati on in the Sa cramento-San Joaquin De lta. 2 Plaintif fs, the Coal ition For a Sustainable Delta , et 3 al., ( Plainti ffs or the Coalition ), allege that State 4 5 6 7 8 9 Defendan ts enforcem ent of these regulations viol ates section 9 of the End angered Species Act ( ESA or Section 9 ), becaus e striped bass prey on and ta ke various ESA-li sted species. Plaintif fs move for summary judgment/adjudication 10 that: (1 ) Plaintiff Dee Dillon has standing; (2) State 11 Defendan t s enforcem ent of the striped bass sport fishing 12 13 14 15 regulations vi olates Section 9; and (3) the Central Valley I mprovement A ct ( CVPIA ), Pub. L. 102-575 , 106 Stat. 46 00 (1992), d oes not provide a legitimate 16 affirmat ive defense in this case. 1 17 Defendan t and Defend ant Intervenors Central Delta Water 18 Agency, et al. ( Central Delta ) oppose Plaintiffs 19 motion. 20 focuses primarily on the CVPIA affirmative defens e. 21 22 23 Docs. 123 & 125. Doc. 114. State Central Delta s opposi tion Plaintif fs filed sep arate replies to each of the oppositi ons. Docs. 143 & 144. 2 24 1 25 26 27 28 Th e pa rt ie s ha ve s ti pul at ed t ha t f ail ur e to e st ab li sh M r. Dil lo n s st an di ng s ha ll be d ee me d a fa il ur e to e st ab li sh st an di ng o f all t he P la in ti ff s. St at e De fe nd a nts St at em en t of U nd isp ut ed F ac t ( S DS UF ) # 3. 2 On A pr il 2 2, 2 01 0, P lai nt if fs r eq u est ed p er mi ss io n to f ile a 25- pa ge r ep ly b ri ef i n r es po ns e to Sta te D ef en da nt s o pp osi ti on . Doc . 13 4. By m in ut e ord er , th e Co u rt de ni ed t hi s re qu es t i n pa rt , per mi tt in g Pl ai nt if f to fi le a 17 - pag e re pl y br ie f. D oc. 1 41 . 2 1 State De fendant orig inally cross-moved for summary 2 adjudica tion that De e Dillon does not have standi ng. 3 Doc. 113 . 4 5 6 7 After add itional discovery was complet ed, State De fendant with drew its motion, recognizing that Mr. Dil lon s most r ecent declaration and deposit ion testimon y create a p otential triable issue of mat erial 8 fact as to whether M r. Dillon has been injured by the 9 State De fendant s en forcement of the striped bass 10 regulati ons. 11 withdraw its opposit ion to Plaintiffs motion for summ ary 12 13 14 15 16 17 18 19 20 21 22 Doc. 162 at 3. State Defendant di d not adjudica tion as to M r. Dillon s standing. See id. The matt er came on f or hearing June 23, 2010, in Courtroo m 3 (OWW). II. STANDARD OF DE CISION Summary judgment is appropriate when the pleadin gs, the disc overy and di sclosure materials on f ile, a nd an y affidavi ts show that there is no genuine issue as to any material fact and th at the movant is entitled to judgment as a mat ter of law. Fed. R. Civ. P. 56(c). A p arty 23 24 25 26 27 28 Sta te D ef en da nt O bj ec ts to P la in ti f f fi li ng o f tw o se pa rat e re pl y bri ef s be ca us e, c om bi ned , th ey e xc e ed 17 p ag es . P la in ti ffs r ej oi n tha t be ca us e th ei r or igi na l re qu es t fo r le av e to f il e a 25- pa ge rep ly b ri ef w as d ir ec ted a t th ei r r epl y to S ta te D ef en da nts opp os it io n, t he y as su med t he C ou rt s 1 7- pa ge l im it a pp li ed on ly t o tha t re pl y br ie f, a nd th at t he y we r e f re e to f il e a se pa rat e re pl y to Ce nt ra l De lt a s se par at e op po si t ion p ur su an t to t he C our t s Sta nd in g Or de r, D oc . 104 , wh ic h li m its r ep li es t o 10 p ag es. Do c. 151 . P la in ti ff s i nt erp re ta ti on o f th e Co ur t s mi nu te o rde r is rea so na bl e. Th ei r re ply b ri ef s wi l l b e co ns id er ed . 3 1 moving f or summary j udgment always bears the ini tial 2 responsi bility of informi ng the district co urt of the 3 basis fo r its motion , and identifying those porti ons of 4 5 6 7 the plea dings, depos itions, answers to interrogat ories, and admi ssions on fi le, together with the affidav its, if any, whi ch it believ es demonstrate the absence of a 8 genuine issue of mat erial fact. 9 Catrett, 477 U.S. 31 7, 323 (1986) (internal quota tion 10 marks om itted). 11 12 13 14 15 Cel otex Corp. v. Where th e movant has the burden of proof on an is sue at trial , it must a ffirmatively demonstrate that no reasonab le trier of fact coul d find other than for the moving p arty. Soremekun v. Thrifty Payless, Inc., 509 16 F.3d 978 , 984 (9th C ir. 2007); see also S. Cal. G as Co . 17 v. City of Santa Ana, 336 F.3d 885, 888 (9t h Cir. 2003 ) 18 (noting that a party moving for summary judgment on claim 19 on which it ha s the burden at trial must establi sh 20 beyond c ontroversy e very essential element of th e claim) 21 22 23 24 (interna l quotation marks omitted). With respect to an issue as to which th e non-mov ing party has the burden of proof, t he movant c an prevail merely by pointing out 25 that the re is an abs ence of evidence to support t he 26 nonmovin g party s ca se. 27 28 Sor emekun, 509 F.3d at 984. When a m otion for su mmary judgment is properly ma de 4 1 and supp orted, the n on-movant cannot defeat the m otion by 2 resting upon the allegati ons or denials of its ow n 3 pleading , rather the non-mov ing party must set forth, by 4 5 6 7 affidavi t or as othe rwise provided in Rule 56, s pecific facts sh owing that t here is a genuine issue for t rial. Id. (quo ting A nderson v. Liberty Lobby, Inc., 477 U.S. 8 242, 250 (1986)). C onclusory, speculative testim ony in 9 affidavi ts and movin g papers is insufficient to r aise 10 genuine issues of fa ct and defeat summary judgmen t. 11 12 13 14 15 Id. To defea t a motion f or summary judgment, the nonmoving p arty must sh ow there exists a genuine dispute (or issue) o f material f act. A fact is material if it might a ffect the ou tcome of the suit under the g overning 16 law. 17 will not lie if [a] dispute about a material fact is 18 genuine , that is, if the evidence is such that a 19 reasonab le jury coul d return a verdict for the no nmoving 20 party. 21 22 23 24 25 A nderson, 477 U.S. at 248. Id. a t 248. In ruling on a motion for s ummary judgment , the distri ct court does not make credib ility determin ations; rath er, the evidence of the non- movant is to be believed, a nd all justifiable inferences are to be drawn in his favo r. Id. at 255. 26 27 28 [S]ummary judgment 5 1 2 3 III. ANALYSIS A. Section 9 Liability Standard. Resoluti on of many o f the disputes in these motio ns 4 turns on whether lia bility under ESA § 9 is attri butable 5 to State Defendant s actions. 6 7 8 9 It is undisputed that the Central Valley sprin g-run Chi nook salmon is liste d as a threaten ed species, 64 Fe d. Reg. 50,394 - 50,415; 70 Fed. Reg. 37, 160 - 37,204, and that the Sacramento River 10 winter-r un Chinook s almon is listed as an endange red 11 species, 59 Fed. Reg . 440. 3 12 13 14 15 16 17 ESA § 9 prohibits th e take of any species liste d as endanger ed. 16 U.S. C. § 1538(a)(1)(B). The Secr etary of the Inte rior, throug h regulation, has applied the take prohibit ion to species that are liste d as t hreatened. C.F.R. § 17.31(a). 50 Take is defined to include harass, 18 harm, pu rsue, hunt, shoot, wound, kill, trap, cap ture, or 19 collect, or attempt to engage in any such c onduct . 20 U.S.C. § 1532(19). 21 Harm i s defined by regulation to include: 22 an act w hich actuall y kills or injures wildlife. Such act may include habitat modification or degradat ion where it actually kills or injures wildlife by signific antly impairing essential behavior al patterns, including breeding, feeding or shelt ering. 23 24 25 26 27 28 16 3 Th e Fi rs t Am en de d Co mpl ai nt ( F AC ) i nc lu de s al le ga ti on s reg ar di ng t he e ff ec t of th e st ri pe d ba ss s po rt f is hi ng r egu la ti on o n Del ta s me lt a nd C en tr al Va ll ey s te e lhe ad . H ow ev er , pl ai nti ff s do not s ee k su mm ar y ju dg men t as t o th o se sp ec ie s. 6 1 50 C.F.R . § 17.3. 2 harm e ither direct ly, by actually killing or in juring a 3 protecte d animal, or by modifying the species ha bitat to 4 5 6 7 8 9 U nder this regulation, a perso n can the poin t of signifi cantly impairing the species essentia l behavioral patterns where that impairme nt results in the actua l dea th or injury of en dangered animals. Direct harm involv es the direct application of 10 force to a member of a protected species, resulti ng in 11 actual d eath of or i njury to the animal. 12 13 14 15 See Bab bitt v. Sweet Ho me Chapter o f Communities for a Great Ore gon, 515 U.S. 687 , 694 (1995) . Habitat modification may also constitute harm wh ere 16 it actually ki lls or inju res wildlife by significantly 17 impairin g essential behavioral patterns, includin g 18 breeding , feeding or sheltering. 19 (emphasi s added) 4 ; see also Sweet Home, 515 U.S. at 697 20 (upholdi ng 50 C.F.R. § 17.3 and holding that the ESA s 21 22 23 24 25 26 27 28 50 C.F.R. § 17 .3 definiti on of harm naturally encompasses habitat 4 Th e Fi sh a nd W il dl if e S er vi ce a do p ted t hi s de fi ni ti on o f ha rm in 5 0 C. F. R. § 17 .3 . [T] he w or d a ct ua ll y be fo re t he w o rds ki ll s or i nj ur es . .. mak es i t cl ea r th at h abi ta t mo di fi c ati on o r de gr ad at io n, sta nd in g al on e, i s no t a t ak in g pu r sua nt t o se ct io n 9. T o b e sub je ct t o se ct io n 9, th e mo di fi ca t ion o r de gr ad at io n mu st be sig ni fi ca nt , mu st s ig nif ic an tl y im p air e ss en ti al b eh av io ral pat te rn s, a nd m us t re sul t in a ct ua l in ju ry t o a pr ot ec te d wil dl if e sp ec ie s. 46 Fe d. R eg . 54 ,7 48 ( 198 1) 7 1 modifica tion that re sults in actual injury or dea th to 2 members of an endang ered or threatened species ); 3 Defender s of Wildlif e v. Bernal, 204 F.3d, 920, 9 24-25 4 5 6 7 (9th Cir . 2000) (aff irming denial of injunction a gainst construc tion on prop erty containing potential hab itat for a specie s of pygmy o wl and confirming that habita t 8 modifica tion does no t constitute harm unless it actually 9 kills or injures wildlife ); see also Marbl ed Murrelet v. 10 Babbitt, 83 F.3d 106 0, 1065-66 (9th C ir. 1996) (h arm 11 through habitat modi fication can be projected int o the 12 13 14 15 future o nly so long as the habitat modification w ill cause ac tual killing or injury of members of a protect ed species) . 16 Either f orm of take by harm (direct harm or harm by 17 habitat modification ) may include acts of a third party 18 that ind irectly brin g about a take by causing ano ther to 19 effect a take. 20 for any person subject to the jurisdiction of the Unit ed 21 22 23 24 16 U.S.C. § 1538(g) (making it unlawful States t o attempt to commit, solicit another to c ommit, or cause to be commi tted, any offense defined in this section ). A t hird party government actor 5 was fou nd 25 5 26 27 28 Be ca us e th e ES A de fi nes pe rs on b roa dl y to i nc lu de an y Sta te , o r a ny o ff ic er, e mp lo ye e, age nt , de pa rt me nt , or ins tr um en ta li ty o f .. . a ny S ta te , id. § 1 53 2( 13 ), th e sta tu te . .. pro hi bi ts a p ar ty , in clu di ng s ta te off ic ia ls , fr om b ri ng ing a bo ut the a ct s of a no th er p art y th at e xa c t a t ak in g. S ea tt le Au du bo n Soc y v . Su th er la nd , 200 7 WL 1 30 09 6 4, at * 8 (W .D . Wa sh . May 2 , 8 1 liable f or indirectl y causing take by direct harm in 2 Strahan v. Coxe, 127 F.3d 155, 163 (1st Cir. 1997), which 3 concerne d a challeng e to Massachusetts authoriza tion of 4 5 6 7 certain types of fix ed fishing gear known to enta ngle Northern Right whale s. 127 F.3d at 158-59. The district court de termined tha t the ESA appl[ied] to acts by th ird 8 parties that allow o r authorize acts that exact a taking 9 and that , but for th e permitting process, could n ot take 10 place. 11 ESA not only prohib its the acts of those parties that 12 13 14 15 Id. a t 163. The Fir st Circuit found that the directly exact the t aking, but also bans those ac ts of a third pa rty that bri ng about the acts exacting a taking. Id. at 1 63. S pecifi cally, a governmental third party 16 pursuant to whose au thority an actor directly exa cts a 17 taking o f an endange red species may b e deemed to have 18 violated the provisi ons of the ESA. 19 Loggerhe ad Turtle v. Volusia County, 148 F.3d 1231, 12 51- 20 53 (11th Cir. 1998) (finding county caused a thir d party 21 22 23 24 Id.; see also to effec t take by ha rm due to habitat modificatio n when it refus ed to ban be achfr ont artificial lig ht sources adversel y impacting sea turtles); Ani mal Prot. Inst. v. 25 Holsten, 541 F. Supp . 2d 1073, 1081 (D. Minn. 200 8) 26 (Minneso ta Departmen t of Natural Resources violat ed 27 section 9 of the ESA by authorizing trapping and snari ng 28 200 7) . 9 1 that cou ld potential ly result in take of the prot ected 2 Canada L ynx). 3 4 5 6 7 It is un clear how th e claims in this case should be classifi ed. Is pred ation by striped bass a direc t harm indirect ly caused by a government action (the enf orcement of the s triped bass sportfishing regulations)? Or, is 8 the huma n manipulati on by increaseing the predato r 9 populati on a form of habitat modification? 10 expanded the meaning of take to include no t only [] t he 11 acts of those partie s that directly exact the tak ing, but 12 13 14 15 Strah an also ban s those acts of a third party that bring about the acts exacting a taking. 127 F.3d at 163. T he prerequi site to a fi nding of third party liabilit y, 16 however, is a first party act that exacts a takin g. 17 fish can not take a nother fish under the E SA, be cause 18 only a person can violate the ESA s take prohib ition. 19 See 16 U.S.C. § 1538(a)(1)(B)( ...[I]t is unlawful for 20 any pers on ... to .. . tak e any [Listed] spe cies within 21 22 23 24 A the Unit ed States or the territorial sea of the U nited States ) (emphasis added); § 1538(g)( It is unlawful fo r any pers on subject t o the jurisdiction of the Uni ted 25 States t o attempt to commit, solicit another to c ommit, 26 or cause to be commi tted, any offense defined in this 27 section. ); § 1532 ( defin ing the term person to mean s 28 10 1 an indi vidual, corp oration, partnership, trust, 2 associat ion, or any other private entity; or any officer, 3 employee , agent, dep artment, or instrumentality o f the 4 5 6 7 Federal Government, of any State, municipality, o r politica l subdivisio n of a State, or of any foreign governme nt; any Stat e, municipality, or political 8 subdivis ion of a Sta te; or any other entity subje ct to 9 the juri sdiction of the United States ); cf. Cetacean 10 Communit y v. Bush, 386 F. 3d 1169 (9th Cir. 2004) 11 (refusin g to grant s tanding to community of whales, 12 13 14 15 dolphins , and porpoi ses because the ESA only auth orized persons to sue; a nimals are the protected rath er than the prot ectors ). A fish cannot take another f ish, 16 because a fish is no t a person, at least not fo r 17 purposes of the ESA. 18 the Stat e Defendant. 19 20 21 22 23 24 Here, the ESA person is t he CDFG, Instead, the circums tances of this case must be addresse d as a form of harm by habitat modificati on. This is consistent w ith cases that have found tak e where human ac tivities red uce prey populations. Greenpeace Foundati on v. Mineta, 122 F. Supp. 2d 1123, 1134 (9th 25 Cir. 200 0) (finding removal of prey may constitut e harm 26 by habit at modificat ion). 27 present circumstance s, where human activities are alleged 28 This is a close analog y to the 11 1 2 3 4 5 6 7 to be in creasing predator populations. 6 Here, th is distincti on is important, because, whe re direct h arm and harm by habitat modification appe ar to differ i s in their n eed for proof of a population -level effect. Take can re sult from direct harm t o a si ngle, individu al ani mal. See, e.g., United State s v. N uesca , 8 945 F.2d 254 (9th Ci r. 1991) (affirming criminal 9 convicti ons under th e ESA for the direct take by hunting 10 of a sin gle Hawaiian monk seal and two green sea 11 turtles) ; Maus olf v. Babb itt, 125 F.3 d 661, 668-70 (8t h 12 13 14 15 Cir. 199 7) (up holdin g agency decision to ban snow mobiling in a Nat ional Park b ased in part on evidence of several cases o f harassment and harming of gray wolves, 16 explaini ng that the ESA prohibits any person, in cluding 17 a govern mental agenc y, from taking any individual 18 member o f a threaten ed or endangered species 19 populati on ); Strahan, 127 F.3d at 16 5 (ref using to 20 consider significan t efforts made by state regu latory 21 22 23 24 25 26 27 28 agency t o minimize e ntanglements of endangered wh ale species in fixed fis hing gear, noting that a single 6 It i s mo re c le ar t ha t h ar m by h ab i tat m od if ic at io n wa s int en de d to i nc lu de a cti on s th at r e duc e pr ey a va il ab il it y b ec au se the d ef in it io n in cl ud es h ab it at m o dif ic at io n or d eg ra da tio n t ha t ac tu al ly k il ls o r in jur es w il dl if e by s ig ni fi ca nt ly i mp air in g ess en ti al b eh av io ra l pat te rn s, i nc l udi ng b re ed in g, f ee di ng or she lt er in g. 5 0 C. F. R. § 17 .3 . B u t, be in g ab le t o ev ad e p re da to rs is an es se nt ia l be ha vio ra l pa tt er n , an d ar gu ab ly f al ls wi th in t he ter m s he lt er in g. 12 1 2 3 4 5 6 7 injury t o one whale is a taking under the ESA. ). 7 In contr ast, there i s some authority suggesting t hat, in the N inth Circuit , harm by habitat modificatio n requires proof of a population level effect. For example, in Pa lila v. Hawaii Dept. of Land and Na tural Resource s, 852 F.2d 1106, 1108 (9th Cir. 1988), a pre- 8 Sweet Ho me cas e, the Nint h Circuit affirmed the distri ct 9 court s construction of the harm regulation to in clude 10 habitat destruction that could drive [a sp ecies] to 11 extincti on. 12 13 14 15 In Palila, it was undisputed that l arge numbers of mouflon s heep would significantly dama ge the Palila s (an ESA-listed b ird) habitat, driv ing the Palila to extin ction. Id. at 11 09. It was disput ed, ho wever , 16 whether a controlled number of sheep could co-exi st wi th 17 the Pali la. 18 credited those witne sses who maintained the two s pecies 19 could no t coexist at any level of sheep populatio n, 20 finding that the sta te agency s permitting of she ep in 21 22 23 24 I d. After a bench trial, the district court the Pali la s habitat constituted a taking under t he ESA. Id. at 1 109-11 10; see als o Greenpeace Found ation, 122 F. Supp. 2d at 1134 (de nying motion for summary judg ment, 25 finding there was a dispute of fact regarding whe ther 26 reductio n in monk se al prey as a result of NMFS s 27 28 7 St ra ha n is n ot a h ar m b y ha bi ta t m odi fi ca ti on c as e. Ra the r, it co nc er ns d ir ec t ha rm (i nj ur ie s c aus ed b y en ta ng le me nt in f is hi ng gea r) t ha t wa s in di re ctl y ca us ed b y a th ir d pa rt y go ve rn men t ag en cy . 13 1 manageme nt of lobster fishing would doom[] the m onk s eal 2 to extin ction ). 3 4 5 6 7 Palila s requirement of proof that ha bitat modifica tion would l ead to extinction was re-affirmed in the post -Sweet Home case National Wildlife Federa tion v. Burlingt on N. R.R., 23 F. 3d 1508, 1513 (9th Cir. 1994), 8 and exte nded to also include habitat degradation where a 9 plaintif f can show significant impairment of the 10 species breeding or feeding habits and prove tha t the 11 habitat degradation prevents, or possibly, retard s, 12 13 14 15 recovery of th e species. In Burling ton Northern , a series o f grain spil ls from defendant s trains in northwes tern Montana resulted at least seven griz zly bear 16 fataliti es in and ar ound the spills. 17 Environm ental plaint iffs request for a prelimina ry 18 injuncti on aga inst d efendant s operations was den ied 19 because they failed to show that similar harm in the 20 future w as likely. 21 22 23 24 Id. a t 15 11-13. Id. a t 1510 . Specif ically, the Ninth Ci rcuit cited evidence that mortalities in the spill ar ea likely h ave had little long term overall effect on the regi on s grizzly bear population; the 25 impacts of the corn spill were of a localized n ature 26 and coul d not be ch aracterized as significant ; and 27 that gr izzly bears have not been habituated over a long 28 14 1 period o f time to th e corn spill area, reducing t he 2 likeliho od that griz zly bears would continue to f requent 3 the area once the fo od source was removed. 4 5 6 7 Id. at 1511. 8 The Nint h Circuit s reasoning in Defenders of Wildlife v. Bernal, 204 F .3d 920 (9th Cir. 2000), cite d 8 by Plain tiffs, sugge sts that actual p roof that habitat 9 modifica tion would h arm a single, individual list ed 10 species is sufficien t to establish a section 9 vi olation. 11 Bernal c oncerned the construction of a school in an area 12 13 14 15 that was potential h abitat for the endangered ferrugin ous pygmy ow l. follows: In this case, there are primarily two material factual questions: 1 ) Does a pygmy-owl use or occupy a ny part of t he school site? 2) Will the construc tion and ope ration of the site resu lt in 16 17 18 19 20 21 22 23 24 25 26 27 28 The dist rict court framed the analysi s as 8 Th e im pos it io n of a r eq ui re me nt th at th er e be a p op ul at ion lev el e ff ec t is s up po rte d by l an gu a ge in S we et H om e, w hi ch in vo lv ed a f ac ia l ch al le ng e to th e re gu la to r y d ef in it io n of ha rm t ha t inc lu de d ha bi ta t mo di fic at io n. Res po nd en ts a dv an ce s tro ng a rg um en t s t ha t ac ti vi ti es t ha t c au se min im al o r un fo re se ea ble h ar m wi ll not v io la te t he A ct a s con st ru ed i n th e h ar m re gu la ti on . Re sp on de nt s, h ow ev er , pre se nt a f ac ia l ch al len ge t o th e r egu la ti on . Cf . An de rs on v. Edw ar ds , 51 4 U. S. 1 43 , 1 55 -1 56 , n. 6 (1 99 5) ; IN S v. N at io nal Cen te r fo r Im mi gr an ts R ig ht s, I nc . , 5 02 U .S . 18 3, 1 88 ( 199 1) . Thu s, t he y as k us t o inv al id at e th e Se cr et ar y s un de rs ta ndi ng of h ar m i n ev er y ci rcu ms ta nc e, e v en wh en a n ac to r kn ow s t ha t an ac ti vi ty , su ch a s dra in in g a po n d, wo ul d ac tu al ly r es ult i n the e xt in ct io n of a l ist ed s pe ci es by de st ro yi ng i ts h ab ita t. Giv en C on gr es s c le ar ex pr es si on o f th e ES A s br oa d pu rp ose t o pro te ct e nd an ge re d an d t hr ea te ne d w ild li fe , th e Se cr et ar y s def in it io n of ha rm is re as on ab le . Swe et H om e, 5 15 U .S . at 69 9- 70 0. 15 1 a § 9 t ake through the harm or harassment of a pyg my-owl ? 2 3 Id. at 9 25. 4 court fo und that the proposed construction projec t would 5 not res ult in the t ake of a pygmy owl. 6 Although there was s ome evidence that owls used the 30- 7 acre par cel, there w as inconsistent evidence rega rding 8 9 10 11 A fter a three-day bench trial, the d istri ct the impa ct of constr uction on the owls. Id. at 922. Id. at 925. Given th e ultimate c onclusion that harm, even to one owl, had not been proven, the district court s assumption t hat 12 harm by habitat modi fication could be shown by pr oving 13 harm to an individua l animal was not necessary to its 14 decision . 15 assumpti on, the Nint h Circuit affirmed. 16 17 18 19 20 Without d iscussing the district court s Id. at 930. The bala nce of the a uthority suggests that a populati on level eff ect is necessary for harm res ulting from hab itat modific ation to be considered a take . Arguendo , imposing s uch a requirement in all cases of 21 alleged harm by habi tat modification might cause a 22 species habitat, an d its continued s urviva l and/or 23 chances of recovery, to be destroyed in a pieceme al 24 fashion. 25 26 27 28 This is no t a case in which such piecem eal destruct ion is a thr eat. This case involves the entire striped bass populat ion in the Delta and its alle ged predator y impa ct on the entire populations of lis ted 16 1 winter a nd spring-run Chi nook salmon. 2 Finding that an acti onable take occurred whenever an 3 action t hat disturbs the balance of an ecosystem poses a 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 reasonab ly certain t hreat of imminent harm 9 to a s ingle member o f the listed species would effectively ev iscerate Sweet Ho me s r equirements of proximate causation and 9 Pl ai nt iff s ne ed o nl y pr ov e a rea so nab ly c er ta in t hr ea t of imm in en t ha rm . I n Ma rbl ed M ur re le t , 8 3 F. 3d a t 10 66 , a pos t- Sw ee t Hom e de ci si on , th e Ni nth C ir cu it r e lie d on F or es t Co ns er vat io n Cou nc il v . Ro sb or o Lu mbe r Co ., 5 0 F .3d 7 81 , 78 7- 88 ( 9t h Cir . 19 95 ), for t he p ro po si ti on t hat [a ] re as o nab ly c er ta in t hr ea t of im mi ne nt har m to a p ro te ct ed s pec ie s is s uf f ici en t fo r is su an ce o f a n inj un ct io n un de r se ct ion 9 o f th e E SA. M ar bl ed M ur re le t spe ci fi ca ll y he ld t ha t t he S up re me Cou rt s 1 99 5 de ci si on in S we et Hom e do es n ot a ff ec t the v it al it y o f R os bo ro s h ol di ng . In Ma rb le d Mu rr el et , an en vi ro nm en t al gr ou p as se rt ed t ha t t he def en da nt s l og gi ng a cti vi ti es w ou l d r es ul t in t he t ak e of li st ed mar bl ed m ur re le ts . 8 3 F .3 d at 1 06 2 . Af te r fi nd in g th at th e lo gg in g act iv it ie s wo ul d li ke ly h ar as s a n d ha rm th e ma rb le d mur re le t, the d is tr ic t co ur t is sue d an i nj un c tio n. Id . at 1 06 3. The def en da nt a pp ea le d, a rgu in g th at p l ain ti ff f ai le d to p ro ve ac tu al har m to a n in di vi du al bi rd . I d. a t 10 62 . T he N in th C ir cui t rej ec te d th e de fe nd an t s a rg um en t, fin di ng t ha t a s ho wi ng of a fut ur e in ju ry t o an e nda ng er ed o r t hre at en ed s pe ci es i s act io na bl e und er t he E SA , a nd t hat [a ] re as o nab ly c er ta in t hr ea t of im mi ne nt har m to a p ro te ct ed s pec ie s is s uf f ici en t fo r is su an ce o f a n inj un ct io n un de r se ct ion 9 o f th e E SA. I d. a t 10 64 -6 6. T he App ea ls C ou rt f ou nd u ndi sp ut ed e vi d enc e th at t he m ar bl ed mu rr el et was l oc at ed w it hi n th e l og gi ng a re a , a nd t ha t th e lo gg in g a ct iv it ie s wo ul d li ke ly h ar m ma rbl ed m ur re le t s b y im pa ir in g th ei r bre ed in g an d inc re as in g th e li ke li hoo d of a tt ac k by p re da to rs o n th e adu lt mur re le ts a s we ll a s the y ou ng . I d. at 1 06 7- 68 ( em ph as is ad de d) . Acc or di ng ly , th e Ni nt h C ir cu it a ff i rme d th e di st ri ct c ou rt s inj un ct io n, a s t he re wa s a re as on a ble c er ta in ty o f im mi nen t ha rm t o [th e ma rb le d mu rr el et ] f ro m [d ef en d ant s ] in te nd ed l og gi ng ope ra ti on . Id . at 1 068 . Sta te D ef en da nt r el ie s o n Am er ic an Bal d Ea gl e v. B ha tt i, 9 F. 3d 163 , 16 6 (1 st C ir . 19 93) , wh ic h he l d: [F] or t he re t o be ha rm u nd er t he ESA , th er e mu st b e ac tua l inj ur y to t he l is te d spe ci es . A cc o rdi ng ly , co ur ts h av e gra nt ed inj un ct iv e re li ef o nl y w he re p et it i one rs h av e sh ow n th at th e all eg ed a ct iv it y ha s act ua ll y ha rm e d t he s pe ci es o r if con ti nu ed w il l ac tu al ly, a s op po se d to p ot en ti al ly , ca us e h ar m to th e sp ec ie s. But , th is F ir st C ir cu it ca se d ir ec t ly co nf li ct s wi th t he Ni nt h Cir cu it s s ub se qu en t hol di ng i n Ma r ble d Mu rr el at . M ar bl ed Mu rr el at con tr ol s. 17 1 foreseea bility, impo sed upon cases concerning har m from 2 habitat modification. 3 regulati on [defining harm] merely implements the statu te, 4 5 6 7 See 51 5 U.S. 700 n. 13 ( [T]he and it i s therefore subject to the statute s kno wingly violates language a nd ordinary requirements of p roximate causatio n and forese eability. ). This is particu larly 8 the case where the i ntervening actor is not a hum an, and 9 therefor e not within the complete control of the human 10 actors i nvolved, inc luding the Court. 11 12 13 14 15 16 17 18 B. Evidenti ary Objectio ns. 1. State De fendants Ob jection to the Electronic Signatur es on the De clarations of Dee Dillon. In a foo tnote to its reply brief, State Defendant objects to the elect ronic signatures on Mr. Dillo n s declarat ion in suppo rt of Plaintiffs motion for partial summary judgment, Do c. 114-4, and in opposi tion t o Sta te 19 Defendan t s motion f or summary judgment, Doc. 119 -2. 20 State De fendant asse rts that Mr. Dillon s electro nic 21 signatur e fails to c omply with the requirements o f Local 22 Rule 131 (f), which p rovides 23 24 25 26 27 28 Non-Atto rney s Electronic Signature. Docume nts that are required to be signed by a person who is not t he attorney of record in a particular action ( verified pleading s, affidavits, pap ers authoriz ed to be fil ed electronically by persons in pro p er, etc.), m ay be submitted in electron ic format be aring a /s/ and the person s name on the signature line along with a statemen t that couns el has a signed original, e.g., / s/ John Doe (original signature retained 18 1 by attor ney Mary Roe ). It is counsel s duty to maintain this origin al signature for one year after th e exhaustion of all appeals. This procedur e may also b e followed when a hybrid electron ic/paper doc ument is filed, i .e., t he conventi onally serve d document may also contain an annot ated signatu re in lieu of the original. 2 3 4 5 However, Local Rule 131(g) requires any party dis puting 6 the auth enticity of an electronically-filed document with 7 a non-at torney signa ture to file an object ion an d 8 9 10 11 request that the doc ument be stricken within twen ty-on e (21) day s of receivi ng the Notice of Electronic F iling or a copy o f the docume nt, whichever first occurs, u nless 12 good cau se exists fo r a later contest of the sign ature by 13 a person exercising due diligence. 14 Declarat ions in ques tion were filed electronicall y on 15 February 22, 2010 an d March 30, 2010, respectivel y. 16 17 18 19 Here, the State De fendant s re ply brief objecting to the el ectronic signatur e was not fi led until April 30, 2010, six ty seven (67) and thirty one (31) days after receiving not ices of 20 the elec tronic filin g, denying Plaintiffs the opp ortunity 21 to corre ct the signa ture. 22 no evide nce suggesti ng good cause existed for a l ater 23 contest of the signa tures. 24 to these declaration s is OVERRULED. State Defendant has pr esented State Defendant s obj ection 25 26 2. 27 Plaintif fs rely exte nsively on a series of purpor ted 28 Effect o f Rule 30(b) (6) Designee s Testimony. admissi ons made by State Defendant s Rule 30(b) (6) 19 1 designee Marty Gingr as. 2 such adm issions are absolutely binding. 3 Defendan t argues tha t Mr. Gingras admissions as its 4 5 6 7 8 Plaintiffs m aintai n that any State designee under Feder al Rule of Civil Procedure 30 (b)(6) are mere ly admissibl e, and not binding. Doc. 123 at 23- 24. The Nint h Circuit has yet to decide this issue. 9 There is a marked di vide in the caselaw. 10 suggest that an agen cy is bound by the testimony of its 11 Rule 30( b)(6) design ee. 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Some co urts Other courts hold that testimo ny given at a Rul e 30 (b)(6) deposition is 10 E. g. , Mi tc he ll E ng g v. C it y & Co u nty o f Sa n Fr an ci sc o, , 201 0 U. S. D is t. L EX IS 20 78 2, a t *4 (N. D. C al . Fe b. 2 , 20 10) ( A 30( b) (6 ) wi tn es s te st ifi es a s a re p res en ta ti ve o f th e en tit y, h is ans we rs b in d th e en ti ty an d he i s r esp on si bl e fo r pr ov id ing a ll t he rel ev an t in fo rm at io n kno wn o r re as o nab ly a va il ab le t o th e e nt it y. (qu ot at io n ma rk s an d cit at io n om it t ed) ; Gr ea t Am . In s. C o. of N .Y . v. Ve ga s Co ns tr . Co ., In c. , 20 08 U . S. Di st . LE XI S 10 84 88 , a t *1 0 (D . Nev . Ma r. 2 4, 2 00 8) ( sam e) ; St at e F arm M ut . Au to . In s. C o. v. N ew Hor iz on t, I nc ., 2 50 F .R. D. 2 03 , 21 2 (E .D . Pa . 20 08 ) ( th e p ur po se beh in d Ru le 3 0( b) (6 ) is to c re at e t est im on y th at w il l bi nd th e [ag en cy ] ( qu ot at io n mar ks a nd c it a tio ns o mi tt ed )) ; Bo ok er v. M as s. Dep t o f Pu b. H ea lt h, 24 6 F. R. D. 3 8 7, 38 9 (D . Ma ss . 20 07 ) ( t he [ag en cy ] is o bl ig at ed to p re pa re t h e d es ig ne es s o th at t hey c an g iv e kno wl ed ge ab le a nd b in din g an sw er s (qu ot at io n ma rk s an d cit at io ns omi tt ed )) ; Ky oe i Fi re & Ma ri ne I ns . Co ., L td . v. M /V M ar iti me Ant al ya , 24 8 F. R. D. 1 26, 1 52 ( S. D. N .Y. 2 00 7) ( sa me ); P oo le ex r el . Ell io tt v . Te xt ro n, I nc. , 19 2 F. R. D . 4 94 , 50 4 (D . Md . 20 00) ( sa me ); Dra vo C or p. v . Li be rt y M ut . In s. C o ., 16 4 F. R. D. 7 0, 7 5 (D. N eb . 199 5) ( sa me ); R ai ne y v. Am . Fo re st and P ap er A ss n , In c. , 2 6 F. Sup p. 2 d 82 , 94 -9 5 (D .D. C. 1 99 8) ( s ame ); N ev . Po we r Co . v. Mo ns an to Co. , 89 1 F. S up p. 1 40 6, 14 18 ( D. N e v. 19 95 ) ( a[ n ag en cy ] m us t pre pa re t he m to g iv e com pl et e, k no w led ge ab le a nd b in di ng an sw er s (qu ot at io n ma rk s an d cit at io ns o mi t ted )) ; Ma rk er v . Un io n F id el it y Lif e In s. C o. , 12 5 F. R.D . 12 1, 1 26 (M. D. N. C. 1 98 9) ( g iv e c om pl et e, kno wl ed ge ab le a nd b in din g an sw er s ) ; D ia mo nd T ri um ph A ut o G la ss , Inc ., v . Sa fe li te G la ss Co rp ., 4 41 F. Su pp . 2d 6 95 , 72 3 (M. D. P a. 200 6) ( d es ig ne e do es no t me re ly s p eak f or h is o wn p er so nal kno wl ed ge , bu t is sp eak in g fo r th e co rp or at io n. .. . [I ]t ca nn ot pre se nt a th eo ry o f fac ts t ha t di f fer s fr om t ha t ar ti cu lat ed b y th e des ig na te d re pr es en ta tiv es . (c it a tio ns o mi tt ed )) . 20 1 evidence which, like any other deposition testimo ny, can 2 be contr adicted and used for impeachment purposes , and 3 that suc h testimony does not bind the designati ng 4 5 6 7 entity in the sense of [a] judicial admission. A.I. Credit C orp. v. Legi on Ins. Co., 265 F.3d 630, 637 (7t h Cir. 200 1). 11 This treats the testimony as that of any 8 witness, making it subject to correction and/or 9 impeachm ent. 10 that a p arty cannot rebut the testimony of its Ru le 11 30(b)(6) witness whe n, as here, the opposing part y has 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Other courts adopt a middle ground and h old relied o n the Rule 3 0(b)(6) testimony, and there is no adequate explanation for the rebuttal. 12 It is no t necessary to resolve the competing line s of 11 Se e al so I nd us tr ia l Har d Ch ro me , L TD. v . He tr an , In c. , 92 F. Sup p. 2 d 78 6, 7 91 ( N. D. Il l 20 00 ) ( Su ch t es ti mo ny i s no t a j ud ic ia l adm is si on t ha t ul ti ma tel y de ci de s a n i ss ue . ); M ed ia S er vic es G ro up , Inc . v. L es so , In c. , 45 F. S up p. 2 d 12 37 , 12 54 ( D. K an . 199 9) ( T he tes ti mo ny o f a Ru le 3 0(b )( 6) d ep on e nt is m er el y an e vi de nti ar y adm is si on . .. [ th at ] may b e co nt ro v ert ed o r ex pl ai ne d by a pa rt y ); 8A Ch ar le s Al an W ri gh t, Ar th ur R . M ill er , Ri ch ar d L. M ar cus , Fe de ra l Pra ct ic e an d Pr oc ed ur e § 2 10 3, p p. 469 -4 70 ( 20 10 ) ( [A ]s wi th a ny oth er p ar ty s ta te me nt , [ Ru le 3 0( b) ( 6) de po si ti on s ta te me nts ] ar e no t bi nd in g i n th e se ns e t ha t th e co r por at e pa rt y is f or bi dde n to c al l the s am e or a no th er w itn es s to o ff e r d if fe re nt t es ti mo ny at tri al . ). 12 Hy de v . St an le y To ol s, 10 7 F. S up p . 2 d 99 2, 9 93 ( E. D. L a. 200 0) , af f d 31 F ed . App x. 1 51 ( 5t h Ci r. 2 00 1) ( pe r cu ri am) (un pu bl is he d) ; St at e Far m Mu t. A ut o . I ns . Co . v. N ew H or izo n, 2 50 F.R .D . 20 3 (E .D . Pa . 200 8) ( T he b e tte r ru le i s th at t he te st im on y of a Ru le 3 0( b) (6 ) re pre se nt at iv e, alt ho ug h ad mi ss ib le a gai ns t th e par ty t ha t de si gn at es th e re pr es en t ati ve , is n ot a j ud ic ial adm is si on a bs ol ut el y bin di ng o n th a t p ar ty , b ut t he p ar ty st il l ma y not re tr ac t pr io r te sti mo ny w it h i mpu ni ty an d co ur ts c an di sr eg ar d inc on si st en t te st im on y w he n th e mo v ant h as r el ie d on i t) ; T ex . Tec hn ic al I ns t. v . Si lic on V al le y, Inc ., 2 00 6 U. S. D is t. LE XI S 62 57 , at *2 1 (S .D . Te x. J an . 3 1, 2 00 6) ( a ffi da vi t di d no t cr ea te an i ss ue of ma te ri al f ac t be ca use i t co nf li c ted w it ho ut e xp la na ti on wi th R ul e 30( b) (6 ) te st im on y) . 21 1 authorit y on the binding effect of testimon y of a person 2 most kno wledgeable deponent, because State Defen dants do 3 not seek to withdraw any of these admissions, a ll of 4 5 6 7 which ar e generic st atements Mr. Gingras agreed w ith during h is depositio n. Rather, State Defendants seek to qualify and/or expla in those statements. For exa mple, 8 Plaintif fs assert th at Mr. Gingras has admitted t hat 9 elimina ting the siz e and catch limits for stripe d bass 10 would re duce the str iped bass population. 11 Statemen t of Undispu ted Facts ( PSUF ), Doc . 114- 2, 2(A). 12 13 14 15 Pltf s State De fendants sim ply maintain that this generi c statemen t does not a ccurately reflect Mr. Gingras own testimon y, and that Mr. Gingras qualifications t o his 16 testimon y are suppor ted by other evidence in the record. 17 Nothing in Rul e 30(b)(6) or the cited caselaw req uires 18 the Cour t to blindly accept these generic stateme nts out 19 of conte xt. 20 21 22 23 24 The Ging ras testimon y may be amplified or explain ed, so long as a materia l change or retraction is not made without a reasonable basis. // 25 // 26 // 27 // 28 22 1 3. 2 Plaintif fs Objectio ns to State Defendant s Statemen t of Undispu ted Facts in Support of State De fendant s Mo tion for Summary Judgment. 3 (1) Objectio ns to Backgr ound Facts. 4 Plaintif fs object to State Defendant s inclusion of 5 certain background f acts in its Statement o f Undi spute d 6 Fact. 7 8 9 10 F or example, Plaintiffs object to the foll owing statemen t as irrelev ant: The water district plai ntiffs base the ir claim of injury on the allegation that DFG s enforcem ent of the r egulations have harmed ESA-listed 11 species, causing fed eral fishery agen cies to reduce State 12 Water Pr oject (SWP) water deliveries to them. 13 This obj ection is OV ERRULED, as this fact provide s 14 relevant background information and is admissible for 15 16 17 18 19 that pur pose. 24 25 The same conclusi on applies t o the same objection as to SD SUF Numbers 4 and 5. (2) 21 23 The c onclusions that such re ductio ns ar e caused b y the regula tions is disputed. 20 22 S DSUF #1. Objectio ns to Facts Related to Mr. Dillon s Use and Enj oyment of the Delta. Plaintif fs also obje ct to certain statements describi ng the exten t to which Mr. Dillon has use d and enjoyed the Delta. For example, they object to t he 26 followin g statement as immaterial : 27 that he has photogra phed salmon two or three time s in the 28 Delta. SDSUF #10. Mr. Dillon stated Plaintiffs insis t that the relev ant 23 1 material fact is not how many salmon Mr. Dillon h as 2 photogra phed in the Delta; instead, it is whether Mr. 3 Dillon h as attempted to photograph salmon in the Delta. 4 5 6 7 Doc. 121 at 8. This fact is not wholly irrelevan t to a determin ation of whe ther Mr. Dillon has eve r and/or continue s to photogr aph salmon in the Delta. 8 to be gi ven this fac t is a separate question. 9 The weight objectio n is OVERRUL ED. 10 11 12 13 14 15 The same reasoning a nd conclusion apply to Plaintif fs objectio ns to SDSUF Nos. 11, 12 , 15, 16, 2 3, 24, 25, 27, 28, 29, 35, 36, 37, 38, 39, 40, 41, 4 2, 45, 46, 47, and 48, all of which present facts relate d to Mr. Dillon s use and enj oyment of the Delta and its w ildlife, 16 bearing on his stand ing. 17 marginal ly rel evant. 18 (3) 19 20 21 22 23 The objections are OVERRULED. Facts Re lated to Mr. Dillon s Recruitm ent by Plain tiff Coalition for a Sustai nable Delta. immateri al to the pr esent motion: ¢ SDSUF #1 7: Mr. Dill on was recruited by plaintif f Coalition for a Sustainable Delta (Coaliti on) about tw o years ago, approximately the same time the Co alition was formed, after being co ntacted by t he Coalition s counsel, Paul Weiland. ¢ SDSUF #1 8: The purp ose for contacting Mr. Dillon w as to enlist him as a plainti ff in this litigati on, as evide nced by his understanding 24 25 26 28 These facts are at leas t Plaintif fs object to the following facts as 24 27 Th e 1 that his role in the Coalition would involve recounti ng his fishi ng and recreation history, ultimate ly to a judg e. 2 3 4 5 6 7 State De fendants hav e presented no authority suggesti ng that how Mr. Dillon came t o be a ssociated w ith the Coal ition is rel evant to Mr. Dillon s own sta nding as an indiv idual plaint iff, who has bona fide protec table 8 environm ental intere sts. 9 SUSTAINE D. 10 11 4. 13 State De fendant s Ob jections to Evidence. a. 12 The relevance objection is Depositi on Testimony Of Marty Gingras. State De fendant has objected to all of the statem ents 14 made by its own Fede ral Rule of Civil Procedure 3 0(b)(6) 15 designee , Marty Ging ras. 16 17 18 19 20 21 22 ¢ Elimina ting the siz e and catch limits for stripe d bass wou ld reduce th e striped bass population. Pls Statemen t of Undispu ted Facts ( SUF ) 2(A). Defendan t objects to the inclusion of Mr. Gingras admissio n that elim inating the size and catch li mits for striped bass would r educe the striped bass popula tion on the basi s that the admission is irrelevant, that 23 Plaintif fs have miss tated the testimony, that the 24 admissio n is not bin ding, and that Mr. Gingras d id not 25 testify as to the ma gnitude of the alleged effect , and 26 did not testify that it was substantial. 27 28 6:14-18. 25 Doc. 1 23-2 at 1 Defendan t s relevanc y objection is misplaced. 2 Plaintif fs have alle ged that the striped bass spo rt- 3 fishing regulations artificially maintain and enh ance the 4 5 6 7 size of the striped bass population in the Delta, increasi ng striped b ass predation on Listed Salmon. There is a serious d ispute over the applicable le gal 8 standard under Secti on 9. 9 to viola te section 9 , the government regulation m ust have 10 a signif icant impact on the species chances of s urvival 11 and reco very. 12 13 14 15 State Defendant mainta ins that Even if, argue ndo, Sta te Def endant s articula tion of the legal standard is correct, Mr . Gingras assertion t hat eliminating the catch lim its for striped bass would r educe the striped bass popula tion is 16 relevant . 17 relative to ca usation. 18 of this generic evid ence, not its admissibility. 19 objectio n is OVERRUL ED. 20 from pre senting addi tional evidence on this subje ct. 21 22 23 24 It tends to establish a fact in disput e This objection goes to the weight State Defendant is not p recluded The same conclusion applies to the State s object ions to the a dmission of this statement on the basis t hat Mr. Gingras did not test ify as to the magnitude of th e 25 alleged effect, and did not testify that it was 26 substant ial. 27 magnitud e of the eff ect goes to its weight, not 28 The The a bsence of testimony about the 26 1 admissib ility. 2 3 4 Defendan t s next obj ection that Plaintiffs have misstate d Mr. Gingra s testimony is unfounded. He testifie d: 5 9 Q.... [A ]s you sit h ere today, wouldn t you agree th at eliminati ng the striped bass regulati ons that lim it the catch and the size of striped bass that an glers in the Delta can take, that get ting rid of those regulations would have the effe ct of reduci ng in some amount the striped bass the str iped bass population? 10 A. I agr ee that that s the case. 6 7 8 11 Gingras Depo. at 612:1-9. 12 13 14 15 The testimony is unamb iguous. State De fendant next argues that the deposition testimon y of Mr. Gin gras, the Rule 30(b)(6) desig nee for Defendan t, is not bi nding. 16 above. 17 ¢ This objection is add ressed State Defend ant may offer explanatory evi dence. 18 Estimat ing striped bass pred ation on winter-run and spring-r un Chinook salmon ave rages between 5% and 25%. P SUF 3(A). 19 Defendan t objects to this statement on the ground 20 21 22 23 24 that Mr. Gingras was speculating and guessing as to the pred ation levels . Doc. 1 23-2 at 12:13-17. Mr. Gingras did state el sewhere that providing a spec ific percenta ge would be speculation, Gingras Depo. 38 8:23- 25 389:2, 4 96:21- 23, 533:15- 21, 605:12-22. 26 after sp ecific instr uction from his attorney not to 27 answer t he question if he had to speculate, Gingras 28 27 Ne verthe less, 1 testifie d to a speci fic range: 2 MS. WORD HAM: If you have to speculate, then you have no answer to gi ve him. You just don t know. *** MR. WEIN STOCK: If yo u re just throwing darts at the boar d and your o pinion is no better than mine or just chance, you can say that. But if you thin k you have a n opinion that s of some value, t hen we want you to give it to us and we ll ta ke it for wh at it s worth. *** THE WITN ESS: Sure. I think it s plausible that -- and t his is more or less a conclusion based on a num ber of studi es and understanding the ups and down s of things -- th at f or both winter-run and spri ng-run , the range wou ld be maybe 5 to 25 percent. 3 4 5 6 7 8 9 10 11 BY MR. W EINSTOCK: Q. Okay. 5 at the low end and 25 at th e high end? 12 13 14 15 A. Corre ct. Gingras Depo. 496:24-498:21. Mr. Ging ras was clea rly instructed not to specula te, 16 17 and he a nswered the question with an estimate bas ed on 18 his expe rience and s tudy, by defining a range of 19 percenta ge effects. 20 statemen ts els ewhere in the record providin g pred ation 21 estimate s go to the weight of his proffered preda tion 22 23 24 25 figures, not their a dmissibility. 28 Other The objection is OVERRULE D. ¢ [S]trip ed bass predation is one of many factors contribu ting to the decli ne o f the listed species. SUF 3(B) . ¢ [P]reda tion by striped b ass increases mortality on those li sted species. S UF 3 (C). 26 27 This testimony is admissible . 28 1 The obje ctions to th ese two statements are 2 substant ially the sa me as made to the statement i n PSUF 3 2A. 4 7 8 9 10 11 The objections are OVERRULE D. 5 6 The same reason ing applies. ¢ Striped bass predation can influence viability of Central Valley Salmonoids . SUF 3(D). State De fendant obje cts to the inclusion of Mr. Gingras admission t hat striped bass predation c an influenc e viability of Central Valley Salmo noids on t he basis th at Mr. Gingr as testified that quant ifying such 12 effect w ould be spec ulation. 13 But, Mr. Gingras wa s not asked to quantify the e ffect; 14 he was o nly asked to confirm whether there was an 15 influen ce : 16 17 18 19 Q. Okay. Let s look at paragraph two of your email. A t the end of paragraph two you state: NMFS re cently publi shed a report on a model that sho ws predation by striped bass can influenc e viability of Central Valley salmonids, but that is no surpr ise. 20 21 Doc. 123-2 at 12:20 -21. *** 23 Q. ... A nd you say that the conclusion that striped bass can inf luence the viability of Central Valley salmo nids, you say that that is no surpr ise. And why do you say that? 24 A. I don t recall wh y I said that. 22 25 26 Q. Do yo u agree with that today? A. Yes. 27 28 Gingras Depo. at 643 :5-644:2. 29 State Defendant s 1 2 objectio n is OVERRUL ED. ¢ 3 4 5 6 7 [A]gree ing with findings by Linley & Mohr regarding the effe cts of striped ba ss p redation on winter-run chinook salmon. SUF 3(F ). Defendan t objects to the statement that Mr. Gingras agreed with finding s by Linley & Mohr regarding the effects of striped b ass predation on winter-run c hinoo k 8 salmon, arguing tha t Mr. Gingras did not agree, but 9 only tha t he found t he statements by Linley & Moh r 10 plausibl e. 11 without a difference , as Plaintiffs only relied o n Mr. 12 13 14 15 16 17 18 19 20 Doc. 123-2 at 13:1-4. This is a distinction Gingras statement t o support its assertion that the conclusi on of the Li ndley & Mohr paper is not in dispute. This sta tement is ad missible. The objection is OVERRULE D. ¢ I do ag ree that reductio n in striped bass abundance ... woul d reduce total ju veni le salmon predation and mortalit y, with a corresp ondi ng increase in juvenile salmon s urvival. SUF 4( A). State De fendant obje cts to the admission of this 21 statemen t on the gro und that Mr. Gingras stated h e would 22 be spec ulating whe n offering figures for stripe d bass 23 predatio n and becaus e Mr. Gingras did not testify as to 24 the magn itude of any effect. 25 26 27 28 32:27. Doc. 123-2 at 19:7- 16, This objecti on is OVERRULED because this statemen t does not o ffer any figures for striped bass predatio n nor does i t address the magnitude of an y 30 1 predatio n effect. 2 State s qualified wi tness. 3 ¢ 4 5 [A]dmit ting that st riped bass predation is one o f the fact ors contribu ting to the decline of the winter-r un and sprin g-run Chi nook salmon. SUF 7 (B). State De fendant obje cts to the inclusion of this 6 7 T his is an expert opinion form the admissio n by Mr. Gin gras on the basis that Mr. G ingras 8 stated i t was one of many factors contributing to the 9 decline, and that while it was his pe rsonal opinion, h e 10 did not know if it w as the consensus view, but hi s 11 opinion is stated wi th reasonable certainty as a 12 13 14 15 16 scientis t. The objectio n is O VERRULED. ¢ [A]dmit ting predat ion by striped bass increases mortalit y on those l isted species. SUF 7(C). Defendan t objects to this admission by Mr. Gingra s on 18 20 Thes e concerns go to the w eight of the evidence not its admissibili ty. 17 19 Doc. 123-2 at 24:25-25:2. the basi s that the s tatement is irrelevant becaus e the referenc e discusses mortality and does not addres s 21 decline, suggesting that the two concepts are not 22 equivale nt. 23 go to th e weight of the evidence not its admissib ility. 24 The obje ction is OVE RRULED. 25 (Def. s Objections at 25:3.) These concerns 26 [A]dmit ting Striped bass predation can influence viabilit y of Central Valley Salmonoids. SUF 7( D). 27 Defendan t objects to the inclusion of this admiss ion 28 ¢ 31 1 by Mr. G ingras on t he basis that Mr. Gingras was 2 respondi ng to a hyp othetical with a hypothetical , but 3 State De fendants fai l to point to the hypothetical to 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 which Mr . Gingras wa s originally responding. was not hypothetical . His answer Mr. Gingras confirmed this assertio n during his deposition: Q. Okay. Let s look at paragraph two of your email. A t the end of paragraph two you state: NMFS re cently publi shed a report on a mode l that sho ws predation by striped bass can influenc e viability of Central Valley salmonid s, but that is no surprise. So is th is sentence referring to the article by Steve Li ndley? I can t remember if there was a co-author. Why don t you tell us what report you re r eferring to. A. I hav e to tell yo u, I don t remember this message at all. But from what s there, I would conclude that I was talking about Lindley and Mohr 200 3. Q. Okay. And we ve s een that already, and w e ve talked a bout it. 21 And you say that the conclusion that striped bass can influence t he viability of Central Valley s almonids, yo u say that that is no surprise . And why do you say that? 22 A. I don t recall wh y I said that. 23 Q. Do yo u agree with that tod ay? 24 A. Yes. 20 25 26 27 28 Q. And w hy do you th ink it is no surprise? A. Becau se striped b ass are abundant and piscivor ous, and the nature of their model was such tha t it could f orecast an impact. 32 1 Q. It di d forecast a n impact? 2 3 A. It di d forecast a n impact. 4 Q. And you found that report to be persuasive and reli able? 5 A. I was not able to determine whether it was reliable . It was cer tainly persuasive. As I mentione d, I got in touch with Steve Lindley to try to d iscuss the r eliability of the report and he didn t resp ond. 6 7 8 9 Gingras Depo. 643:5- 644:1 5. State Defendant corre ctly 10 point ou t that Mr. G ingras testimony states that striped 11 bass pre dation can influence the viability of t he 12 13 14 15 16 listed s pecies, not that it does. 7. Doc. 123-2 a t 25: 4- Howe ver, this ob jection goes to the wei ght of the evidence , not its ad missibility. The objection i s OVERRULE D. ¢ [A]dmit ting that elimina ting the size and two fish bag limi t would reduce t he p redation on the winter-r un chinook salmon and spring-run chinook salmon. SUF 8(A). ¢ 21 [A]dmit ting eliminating the striped bass catch and size lim its would reduce the striped bass populati on. SUF 8(B). 22 Defendan t objects to these statements by Mr. Ging ras 17 18 19 20 23 on the b asis that Mr . Gingras declined to estimat e a 24 magnitud e for any su ch effect. 25 26 27 28 Doc. 123-2 at 27:4-8. These ob jections go to the weight of this generic evidence , not its ad missibility. OVERRULE D. The objections are State De fendant may present explanato ry, more 33 1 2 specific evidence. ¢ [A]dmit ting that deregul atio n would benefi t the salmon s pecies. SUF 9(A ), 1 0(B). ¢ 5 [A]dmit ting that odds a re that deregulation is likely t o help the salmon rec overy. SUF 9(B), 10(C). 6 State De fendant firs t objects to these statements on 3 4 7 8 9 10 11 12 the basi s that Mr. G ingras stated he disagreed th at th e magnitud e of any suc h effect would be substantial . 123-2 at 29:12 -16 Doc. This objection goes solely to the weight o f the eviden ce, not its admissibility. T he objectio n is OVERRUL ED. State De fendant also objects that Mr. Gingras sta ted 13 14 he did n ot know how effective it woul d be to deregulate 15 striped bass sportfi shing. 16 17 18 19 20 21 Again, t his objectio n goes to weight, not admissi bility. While Mr . Gingras co uld not provide a specific pe rcentage or numer ical value o f the positive impact resulting fr om deregula tion, he con firmed that deregulation woul d benefit the Listed S almon. 24 25 26 27 28 Gingras Depo. at 474: 1-5. These ob jections are OVERRULED. 22 23 Doc. 123-2 at 32:21-26. ¢ [A]dmit ting that modifyi ng t he striped bass sportfishing regulations would hav e some beneficial effect. SUF 9(D), 10(E ). State De fendant obje cts to this statement on the ground t hat Mr. Ging ras did not testify as to the magnitud e of any eff ect. Doc. 123-2 at 29:27, 33:1-2. 34 1 This obj ection, whic h goes to weight, not admissi bility, 2 is OVERR ULED. 3 ¢ 4 5 6 [A]dmit ting that el iminating the striped bass sportfis hing regulat ions would contribute to the recovery of the wint er-run and spring-run s almon, assuming that deregu lation would reduce striped b ass abundanc e. SUF 9(E ), 10(F). Defendan t objects to the incl usion of statement on 7 8 the grou nds that Mr. Gingras stated he would be 9 speculat ing when off ering figures for striped bas s 10 predatio n and that h e did not testify as to the m agnitude 11 of any e ffect. 12 13 14 15 16 17 18 19 20 Doc. 123- 2 at 30:1, 33:3. As dis cussed above, t hese objecti ons go to weight not admissib ility and are OVERRULED. ¢ [A]gree ing with Dr. Hans on s conclusion that a reductio n in the striped bass population would contribu te to a reductio n in the risk of extinction of winte r-run salmon. SUF 10(A). This sta tement is of fered to support the factual assertio n that enjo ining the enforcement of the striped bass spo rtfishing re gulations would likely benefi t 21 [winter- run] and [] spring-run [] by reduci ng the ir ri sk 22 of extin ction. 23 PSUF 10A , a characte rization of Mr. Gingras test imony, 24 does not support the general assertion in PSUF 10 , 25 26 27 28 PSU F #10(A). Defendant ob jects that because Mr. Gingras was responding to questions a bout Dr. Hanson s report, whi ch assumed a hypothetical red uction in strip ed bass popu lation, rather th an inj unction of the 35 1 striped bass sportfi shing regulations. 2 32:17-20 . 3 not its admissibilit y. 4 5 6 7 Doc. 123- 2 at This obje ction goes to the weight of PSUF 10A, The objection is OVERRULE D. In the f inal analysi s, the extent of predation of protected salm onids by striped bass and the materiality of the b enefit of a reduction of striped bass pop ulation 8 is what is to be dec ided. 9 Gingras testimony d irectly addresses these issue s. 10 b. 11 Even without magnitude , Mr. Depositi on Testimony of Matthew Nobriga. Defendan t has also o bjected to statements 12 13 characte rizing the t estimony of its designated ex pert, 14 Matthew Nobriga. 16 [E]stim ating that s triped bass predation on wint errun and spring-run c hinoo k sa lmon averages between 6% and 50%. SUF 3(G). 17 Defendan t objects to the inclusion of Mr. Nobriga s 15 18 19 20 21 22 ¢ predatio n estimates on the basis that Mr. Nobriga testifie d that makin g such an estimate would be silly. (Def. s Objections a t 13:5-7.) However, Mr . Nobr iga d id offer hi s own predat ion estimates: 27 Q. Okay. So I think you ve given us a range for the salm onids, call it a ballpark of reasonab leness -- at least that s wha t I ll call it, you can call it something else -- for t hese estimate s of somewhe re roughly between 6 or 10 percent at the low e nd and around 50 percen t at the high end for the winter-run and s pring-run salmon. Is that righ t? 28 A. Yes. 23 24 25 26 36 1 Q. And f or the steel head, I take it you feel the data is just so insu fficient that you don t even have the beginnings of an opinion on the subject? 2 3 4 A. Yes. 5 Q. And f or delta sme lt, what s the range you could fe el comfortab le with for the predation estimate s, upper and lower? 6 7 A. I don t know. Fro m a scientific perspective, this is silly to me. I mean, it s just pulling numbers out of the a ir. 8 9 10 Q. Well, I assume th at this is something that you have studied and discussed at length. So your opi nion is wort h certainly more than mine, so I m a sking for yo ur opinion. 11 12 A. I m t rying to rem ember papers that I ve seen where a predation es timate on a pelagic fish populati on has been published. So a low-end estimate that s reas onable is probably 20 percent .... 13 14 15 16 17 18 19 20 Nobriga Depo. at 119 :1-120:2. Any statements Mr. Nobriga may have made elsewh ere regarding the speculative nature of any p redation est imates go to the weight of th is evidence, not its admissibility. 21 opinion by giving an estimate. 22 He has expressed his OVERRULE D. 23 The objection is 25 [A]gree ing that Linley & Moh r used a sound scientif ic method when es tima ting striped bass predatio n on winter-run c hino ok salmon averaged 9%. SUF 3(H) . 26 Defendan t objects to this statement on the basis that 24 27 28 ¢ Mr. Nobr iga indicate d elsewhere he would be specu lating 37 1 as to wh ether the es timate is high or low, and th at he 2 disagree d with their findings regarding survival and 3 extincti on possibili ties. 4 5 6 7 Do c. 123-2 at 13 :8-10. Thi s statemen t does not o ffer Mr. Nobriga s own predat ion estimate s. It merel y confirms that Linley & Mohr s study used a s ound scienti fic method in reaching their 8 conclusi ons. 9 objectio n is OVERRUL ED, but this does not preclude State 10 Defendan t from prese nting contrary predation esti mates. 11 12 13 14 15 16 ¢ See No briga Depo. at 110:25-111:2. The [A]gree ing with Dr. Hanson s conclusion that a reductio n in striped bass abundance would not be expected to substant ially increase other salmon predator s in the Riv er, but rather wo uld re duce t otal juvenile salmon pred ation and mortality, with a correspo nding increa se in juvenile salmon surviva l. SUF 9(F) , 10(G). Defendan t objects to this admission by Mr. Nobrig a on 17 the grou nds that Mr. Nobriga s qualified hi s agre ement 18 with Dr. Hanson in v arious ways. 19 20:1, 30 :2, 33:4-5. 20 complete ly undermine Mr. Nobriga s agreement with Dr. 21 22 23 24 25 Doc. 123-2 at 19:23- Thes e qualifications d o not Hanson s conclusion: Q. Okay. I just want ed to find out if you agree or disag ree with tha t [paragraph reflecting Dr. Hanson s conclusion] . A. I agr ee with it. 26 Nobriga Depo. 259:24-260:6. 27 go to th e weight not the admissibility of his tes timony. 28 Mr. Nobr iga s qualificati ons 38 1 2 The obje ction is OVE RRULED. 3 I would agree that less striped bass would create some inc rease in sal mon. SUF 9(G), 10(H). 4 Defendan t similarly objects to this characterizat ion ¢ 5 of Mr. N obriga s tes timony as misstated because Mr. 6 Nobriga testified th at he did not know whether th e 7 relation ship would be pro portionate. 8 9 10 3, 30:3, 33:6- 7. c. 12 14 This objection, which goes to weight not admi ssibility, i s OVERRULED. 11 13 Doc. 123-2 at 20:2- Objectio ns to Docume nts. State De fendant has also objected to a number of document s. 15 Departme nt Of Fish And Ga me M emorandum Authored By Stevens and Delisle: SUF 2(B) . 16 State De fendant obje cts on several grounds to the 17 admissio n of a CDFG memo authored by Don Stevens and Glen 18 Delisle, two key CDF G biologists. 19 20 21 22 23 24 ¢ State De fendants obj ection on relevancy grounds i s unfounde d, as this is a CDFG document analyzing the impact o f eliminatin g the striped bass sport-fishing regulati ons is clear ly relevant to this case. State De fendants als o object that the document d oes 25 not refl ect the offi cial position of the State 26 Defendan t. 27 caselaw, has no bear ing on document s admissibili ty. 28 This objecti on, which is unsup ported by any 39 1 State De fendant s ob jection that the document is 2 unauthen ticated is a lso unfounded, because, as a CDFG 3 document produced by Defendant in response to a d iscovery 4 5 6 7 request, the documen t has been authenticated by Defendan t. Se e Orr v. Bank of Am., 285 F.3 d 764, 777 n.20 (9t h Cir. 2002) (confirming that documents p roduced 8 in respo nse to disco very are deemed authentic whe n 9 offered by the party-opponent). 10 11 12 13 14 15 Finally, State Defendant asserts CDFG employees testifie d they disag reed with any statement in th e memo as to ma gnitude. D oc. 123-2 at 6:20-23. But, the existenc e of any suc h contrary testimony goes to the weight o f this evide nce, not its admissibility. The obje ctions to th is document are OVERRULED. 16 18 Departme nt Of Fish A nd Game Proposed changes to marine s port fishing regulations for the 2006 triennia l process: S UF 2(C). 19 Defendan t has object ed that the document is not 20 relevant to this lit igation on the grounds that the 21 increase in striped bass catches associated with changed 22 sportfis hing regulat ions would not necessarily eq uate to 17 23 24 25 26 ¢ a reduce d striped ba ss population. This objectio n goes to weigh t, not admis sibility. Defendan t has also o bjected that the document lac ks 27 foundati on. Althoug h it is not clear, it appears that 28 State De fendants adv ance the same authentication 40 1 objectio n rejected a bove. 2 3 The obje ctions to th is document are OVERRULED. ¢ 4 5 Defendan t s relevanc e objection is unfounded, bec ause 6 7 Draft Co nservation Plan F or T he California Departme nt Of Fish And Ga me S triped B ass Management Program: SUF 2(D), 4(K). this is a CDFG docum ent analyzing the impact of 8 eliminat ing the stri ped bass sport-fishing regulations , a 9 subject that is rele vant to this case. 10 11 12 13 14 15 State De fendant also objects to Plain tiffs relia nce on a sta tement in th e conservation plan that it is reasonab le to assume that predation on winter-run chin ook salmon . .. would dec rease roughly in proportion t o whatever decline occ urred in striped bass abundance du e 16 to regul ation change s because the report alleged ly lacks 17 foundati on and does not offer support for this st atement. 18 Doc. 123 -2 at 20:16- 17. 19 The foun dational obj ection has been rejected. 20 the obje ction that t he document lacks internal support 21 22 23 As to for this assertion, this goes to weight not admissib ility. The obje ctions to th is document are OVERRULED. 24 26 Donald K och s Supplementa l Re sponses To Plaintiffs First Se t Of Requests For Adm issions No. 2: SUF 2(E). 27 Defendan t also objec ts to the inclusion of Donald 25 28 ¢ 41 1 Koch s o wn interroga tory response on the basis of 2 relevanc y, claiming that the response does not co ntain an 3 estimate of magnitud e with respect to the increas e in 4 5 6 7 striped bass as a re sult of the sport-fishi ng regulati ons. Doc. 1 23-2 at 7:5. This obje ction is without merit, as th is general response by CDFG s 8 Director analyzing t he impact of the striped bass sport- 9 fishing regulations is relevant to this case. 10 11 12 That the interrogato ry response does not estimate the magnitud e of the imp act o n th e striped bass popul ation goes to its weight, not its admissibility. 13 The obje ctions to th is document are OVERRULED. 14 15 16 17 18 19 20 ¢ E-Mail F rom Ma rty Gingras To Geoff Malloway: SUF 2(I). Defendan t also objec ts to the inclusion of Mr. Gingras statement t hat eliminating the striped b ass regulati ons would r educe the population on the basis that the e-mai l also notes changes in Delta habi tat as 21 the fun damental pro blem for native fish species. 22 123-2 at 7:15- 16. 23 alternat ive so urce o f mortalty as the fundamenta l 24 problem goes to the weight of the statement, not its 25 26 27 28 Doc. The fact that the email identifies an admissib ility. The obje ctions to th is document are OVERRULED. St ate Defendan t may presen t the context within which th e 42 1 2 3 4 5 6 7 statemen t is made. ¢ Biologic al Assessment For The Department Of Fish And Game Str iped Bass Managem ent Program: SUF 2(K), 4(I), 4( J). Defendan t objects to Plaintiffs reliance on the statemen t by State D efendant in its own Biologica l Assessme nt that the sport-fis hing regulations maintain 8 striped bass abundan ce at a greater level than if fishing 9 were unr egulated, on the ground that the admissio n is 10 irreleva nt since the assessment gives no estimate of 11 magnitud e. 12 13 14 15 Doc. 123-2 at 7:20-21. This ob jectio n, wh ich goes to weight, not admissibi lity, is OVERRULED. The magnitud e may be rel evant to the ultimate outcome of Plaintif fs claims, and State Defendants may pres ent 16 evidence that clarif ies its own general statement s about 17 the effe ct of stripe d bass abundance. 18 State De fendant rais es the sa me objection to 19 Plaintif fs reliance on statements in the Biologi cal 20 Assessme nt that: (1) the result of maintaining st riped 21 22 23 24 bass abu ndance at a greater level is greater pre dation on the s pecies of co ncern, arguing that the stat ement is irreleva nt because the environmental document does not 25 provide any estimate of magnitude, Doc. 123-2 at 20:14 ; 26 and (2) that elimina ting striped bass regulations would 27 further depress the striped bass population and r educe 28 43 1 predatio n on winter- run c hinook salmon, Do c. 123 -2 at 2 20:15. 3 go to we ight not adm issibility, are OVERRULED. 4 The result i s the same. These objections , which 5 Nobriga & Feyrer Shallow- Water Pisciv ore-Prey Dynamics In The Delta: SU F 3( J), 7(H). 6 Defendan t also objec ts to Mr. Nobriga s statement , in 7 8 9 10 11 ¢ a peer r eviewed scie ntific article, that striped bass likely r emains the m ost significant predator of C hinook salmon. State De fendants arg ue that the statement is hear say 12 and lack s foundation . 13 a report drafted by State Def endant s expert, ide ntified 14 and reli ed on by the Defendant s expert in reachi ng his 15 opinions , see Doc. 124, Exh. A, October 1, 2009 Report by 16 17 18 19 20 21 22 But, the statement was inc luded in Matthew L. Nobriga ( Nobriga Report ), and was pr oduced by Defen dant in resp onse to discovery. Therefore , Defendan t s foundati on and hearsay objections are meritles s. Se e Orr v. Bank of Am., 285 F.3d at 777 n. 20; Fed. R. Evid. 803(18 ), 807. State De fendants als o argue that the statement is 23 irreleva nt because e ven if the striped bass is th e most 24 signific ant pr edator of Chinook salmon, this does not 25 26 27 28 mean tha t: (1) they are a significant predator; ( 2) predatio n is a signi ficant cause of salmon mortal ity; or (3) elim inating stri ped bass will reduce salmon 44 1 mortalit y. 2 to the w eight, not t he relevance of the statement , which 3 provides some suppor t for Plaintiffs theory that striped 4 This objection g oes bass pre y on Chinook salmon. 5 State De fendant furt her objects on the basis of 6 7 Doc. 12 3-2 a t 13 :13-18. relevanc y because th e report only discusses strip ed bass 8 as a predator and does not discuss decline of the species 9 overall. 10 weight, not relevanc e, as there is clear relevanc e to 11 evidence that the st riped bass prey on the Listed 12 13 14 15 16 17 18 19 20 Doc. 123-2 at 25:13 -14. Th is objection goes to Species. ¢ Lindley & Mohr Modeling T he Effect Of Striped Bass Report: SUF 3(K), 7(I), 1 0(K) . Defendan t also objec ts to Plaintiffs reliance on a scientif ic, peer-reviewed article that conc ludes that the cur rent striped bass population of roughly 1 x10^6 adults c onsumes abou t 9% of winter-run chinook salmon outmigra nts, assert ing that the statement is hea rsay, 21 lacks fo undation, an d that Defendant s expert s r eport 22 disputes this modeli ng. Doc. 123-2 a t 13:19-14:3, 33:10. 23 The foun dation objec tion is without merit because at 24 least on e of Defendant s experts discusses this document 25 26 27 28 at lengt h. Se e Doc. 124, Exh. A, Nobriga Report. Because experts may rely on hearsay, that objecti on is also wit hout merit. The objection that the repor t is 45 1 disputed by Defendan t s expert goes to weight, no t 2 admissib ility. 3 4 5 6 7 8 The same applies to State Defendant s objection t hat the repo rt is irrele vant because it only discusse s striped bass predati on as a risk factor and doe s not discuss decline of t he population overall. 25:15-16 . 11 This goes to weigh t, not relevance. The obje ctions are O VERRULED. 9 10 Doc. 123-2 at ¢ National Marine Fish eries Service Public Draft Recovery Plan: SUF 7 (F), 7(G) . 12 State De fendant obje cts to Plaintiffs reliance o n a 13 report p repared by t he National Marine Fisheries Service 14 ( NMFS ) , argu ing that the report s statement that 15 predati on of Chinoo k salmon and steelhead from 16 17 18 19 20 introduc ed species s uch as striped bass and black bass [is an i mportant str essor] is hearsay and irrele vant because it fails to discuss decline of the specie s overall. Doc. 123-2 at 25:9-10. The relev ancy o bject ion 21 is OVERR ULED, as it goes to the weight, not admis sibility 22 of this document. 23 24 25 26 27 28 The hear say objectio n is overcome by an expert s right to rely on hea rsay, as well as by Federal R ule of Evidence 803(8), whi ch applies to [r]ecord s, reports, statemen ts, or data compilations, in any form, of public offices or agencies, setting forth (A) the activi ties of 46 1 the offi ce or agency , or (B) matters observed pur suant to 2 duty imp osed by law as to which matters there was a du ty 3 to repor t.... 4 5 6 7 The Recovery Plan, which is a pol icy document , describes matters observed pursuant to a duty imposed by law, the evaluation of the status of listed species under the ju risdiction of NMFS. Document s such 8 as the R ecovery Plan are also routinely the subje ct of 9 judicial notice unde r Federal Rule of Evidence 20 1. 10 11 12 13 14 15 The same analysis ap plies to State Defendant s objectio ns to a stat ement in the Recovery Plan th at calls for impl ementation o f programs and measures desi gned to control non-na tive predatory fish ... including harvest manageme nt technique s. The analysis is relevant to 16 recovery of the spec ies and the claim that the st atement 17 fails to support the material fact at issue, Doc. 123- 2 18 at 25:9- 10, 30:4-5 and 33 :11, goes only to the we ight of 19 the opin ion. 20 21 22 23 24 25 26 State De fendant s ob jection to Plaintiffs relian ce on the N MFS Recovery Plan for the truth of the ma tters asserted therein is OVERRULED. 5. Central Delta s Obje ctions to Plaintiffs Statemen t of Undispu ted Material Facts. Central Delta s obje ction s to Plaintiffs S tatement 27 of Undis puted Materi al Facts incorporate the argu ments 28 made by the State De fendants. 47 See Do c. 125-2. 1 Plaintif fs argue th at Central Delta s objections should 2 be stric ken on the g rounds that they violate the May 28, 3 2008, Or der strictly limiting Central Delta s 4 5 6 7 interven tion in this case to issues about which they can provide unique infor mation and/or arguments. 11. Do c. 32 at Her e, the only unique issue Central Delta ex pressed 8 any inte ntion to add ress is the effec t of the CVPIA on 9 State De fendant s li ability. 10 have not hing to do w ith their CVPIA argument. 11 reason a nd because t he objections are cumulative of the 12 13 14 15 16 17 18 19 Central Delta s obj ections Fo r this State De fendant s ob jections, Central Delta s obj ections are not considered. They add nothing and have be en decided by the rulin gs on the State Defendant s objectio ns. 6. Plaintif fs Objectio ns to the Declaration of Robert S ouza. In suppo rt of its mo tion for summary judgment, 20 Central Delta offers the Declaration of Robert So uza, who 21 opines a bout the cau ses of harm to the Listed Spe cies. 22 Mr. Souz a claims no expertise that qualifies him to opine 23 24 25 26 on these subjects. Nevertheless, he opines, base d on his years of fishing the Delta, that the general decl ine in delta sm elt is not due to striped bass predation, but 27 instead is attributa ble to excessive export pumpi ng from 28 the Delt a, Doc. 125-4 at ¶9, and tha t the constructi on 48 1 and exce ssive operat ion of the massive projects t o divert 2 water in the south D elta for agriculture and other hum an 3 uses hav e had a trem endously negative impact on s triped 4 5 6 7 bass, [t he delta sme lt], and other fish in the De lta. Id. Plaintif f objects th at Mr. Souza s Declaration is 8 inadmiss ible as impr oper lay opinion. 9 Rules of Evidence 701, la y opinions cannot be ba sed o n 10 scientif ic, technica l, or other specialized knowl edge 11 within t he scope of Rule 702. 12 13 14 15 Under Fede ral The purpose of th is rule is to pr event a part y from offering an expert opi nion in lay witn ess clothing , and thereby evading Federa l Rules of Evide nce 702 s re quirements and the correspond ing 16 disclosu re requireme nts under Rule 26. 17 v. Conn. , 297 F.3d 5 48, 553 (7th Cir. 2002). 18 opinions regarding t he cause of the decline in de lta 19 smelt an d the impact s of water divers ion from the Delta 20 are just that, as th ey require scientific, techni cal, or 21 22 23 24 See Unite d Sta tes Mr. Souza s speciali zed knowledg e that exceed the scope of co mmon experien ce. E .g., Certain Underwriters at Lloyd s, London v . Sinkovich, 232 F.3d 200, 20 4-06 (4th Cir. 20 00) 25 (error t o allow lay witness to answer questions o n 26 matters exceeding sc ope of common experience). 27 Souza s declaration is STRICKEN. 28 49 M r. 1 7. 2 Central Delta reques ts that judicial notice be ta ken Requests for Judicia l Notice. 3 of 10 do cuments that are public records. 4 Plaintif fs request t hat judicial notice be taken of a 5 6 7 8 Doc. 12 5-3. U.S. Fis h and Wildli fe Service ( FWS ) webpage an d a portion of a March 3 , 2010 California Fish and Ga me Commissi on ( CFGC ) meeting, submitted on DVD. D oc. 145. 9 All of t he documents offered by Central Delta, along w ith 10 the FWS web page and the DVD depicting the CFGC m eeting, 11 are subj ect to judic ial notice under Federal Rule of 12 Evidence 201 to prov e their existence and content , but 13 14 15 16 17 18 19 20 21 22 23 not for the truth of the matters asserted therein . This means th at fac tual i nformation asserted in these document or the m eeting canno t be used to create or resolv e disputed issues of m aterial fact. C. Standing of Dee Dill on. 1. General Legal Standa rd. Standing is a judici ally created doctrine that is an essentia l part of the case-or-controv ersy requirement of Article III. Pritikin v. Dept. of Energy, 254 F.3d 79 1, 24 796 (9th Cir. 2001) (citing Lujan v. Defenders of 25 Wildlife , 504 U.S. 555, 5 60 (1992). 26 Article III case or controversy requirement, a li tigant 27 must hav e suffered s ome actual injury that can be 28 50 To sa tisfy the 1 redresse d by a favor able judicial decision. 2 Honor So c. v. Heckle r, 464 U.S. 67, 7 0 (198 4). 3 essence the question of standing is whether the l itigant 4 5 6 7 8 9 Iro n Arr ow In is entit led to have the court decide the merits of the dispute or of partic ular issues. Warth v. Seldin, 422 U.S. 490 , 498 (1975) . To have standing, a plaintiff must show three elements . 10 First, t he plaintiff must have suffered an injury in fact -- an invasion of a legall y protecte d inte rest w hich is ( a) concrete an d particul arized and ( b) actual or imminent, not conjectu ral or hypot hetical. Second, there must be a cau sal connecti on between the injury and the cond uct complain ed of -- the inju ry has to be fairl y traceable to the challenged action of the defe ndant, and n ot the result of the independ ent action o f some third party not before t he court. Th ird, it must be likely, as opposed to merely sp eculative, that the injury will be redressed by a favorable decision. 11 12 13 14 15 16 17 Lujan, 5 04 U.S . 560- 61 (i nternal citations and qu otati ons 18 omitted) . 19 20 21 22 23 24 25 26 27 28 The Supr eme Court ha s described a plaintiff s bur den of provi ng standing at various stages of a case a s follows: Since [t he standing elements] are not mere pleading requirement s but rather an indispen sable part o f the pla intiff s case, each element must be supp orted in the same way as any other ma tter on whic h the plaintiff bears the burden o f proof, i.e ., with the manner and degree o f evidence r equired at the successive stages o f the litiga tion. At the pleading stage, g eneral factu al allegations of injury resultin g from the d efendant s conduct may suffice, for on a mo tion to dismiss we presume 51 1 that gen eral allegat ions embrace those specific facts th at are neces sary to support the claim. In respo nse to a summary judgment motion, however, the plainti ff can no longer rest on such me re allegatio ns, but must set forth by affidavi t or other e vidence specific facts, Fed. Rul e Civ. Proc. 56(e), which for purposes of the s ummary judgm ent motion will be taken to be true. And at the final stage, those facts (if controve rted) must b e supported adequately by the evid ence adduced at trial. 2 3 4 5 6 7 Id. at 5 61; se e also Churchill County v. Babbitt, 150 8 F.3d 107 2, 1077 (9th Cir. 1998). 9 10 11 12 13 A plaint iff is not r equired to prove that h e would succeed on the merit s to summarily adjudicate his standing to sue. Farrakh an v. Gregoire, 590 F.3d 989, 1001 (9t h Cir. 2010) (granting summary judgment a nd 14 noting t hat [w]heth er Plaintiffs can succeed on their [] 15 claim is irrelevant to the question w hether they are 16 entitled to bring th at claim in the first place. ). 17 18 19 20 21 Plaintif fs sug gest t hat, even in the face of conflict ing evidence , Mr. Dillon will satisfy hi s burden of proof so long as he shows a substantial proba bility that [he ] has been injured, that the defend ant caused 22 [his] in jury, and th at the court could redress [t he] 23 injury. 24 Tech. Co uncil v. EPA, 292 F.3d 895, 899 (D. C. Cir . 200 2). 25 This is misleading. 26 supporte d in the sam e way as any other matter on which 27 28 Doc. 116 a t 15 (quoting Sie rra Club & Envtl. Each element of standing mu st be the plai ntiff bears the burden of proof, i.e., wi th th e 52 1 manner a nd degree of evidence required at the suc cessive 2 stages o f litigation . 3 in Lujan, where the plaintiff was the non-movant whose 4 5 6 7 Lujan , 504 U.S. at 561. Unlik e factual submissions on summary judgment were tak en to be true, i d., he re, Mr. Dil lon, as the moving party , has the burd en of proof on an issue at trial and must 8 affirma tively demon strate that no reasonable tri er of 9 fact cou ld find other than for the moving party. 10 Soremeku n, 509 F.3d at 984. 11 stage, M r. Dillon ca n satisfy his burden only by showing 12 13 14 15 16 17 18 19 20 21 22 At the summary judgm ent that the undisputed evidence establis hes that no reasonab le trier of fact could find that he has n ot satisfie d the releva nt legal standard applicable to each element of the stand ing inquiry. 2. Injury I n Fact. a. Legal St andard. Dee Dill on first mus t establish that he has suffe red an injur y in fact, w hich Lujan define s as an invasion of a legall y protected interest which is (a) c oncret e and 23 particul arized; and (b) actual or imminent, not 24 conject ural or hypo thetical. 25 (interna l citations omitted). 26 27 28 504 U.S. at 560 The Supr eme Court re cently examined the injury i n fact co mponent of c onstitutional standing in Sum mers v. 53 1 Earth Is land Institu te, 1 29 S . Ct. 1142 (2009), 2 addressi ng whether e nvironmental organizations ha d 3 standing to challeng e a U.S. Forest Service regul ation 4 5 6 7 that exe mpted small fire- rehabilitation and timbe rsalvage projects fro m the Service s notice, comme nt, and appeal p rocess. Id. at 1147. Althou gh the plaintiffs 8 original ly challenge d the regulations and an indi vidual 9 salvage sale under t he regulations, the dis pute a s to the 10 individu al salvage s ale was subsequently settled, 11 limiting the lawsuit to the facial challenge. 12 13 14 15 1148. Id. at N oting the la nguage in Lujan that it is substant ially more d ifficult to establish standi ng when the pla intiff is no t himself the object of the 16 governme nt action, Summe rs concluded that the 17 plaintif fs affidavi ts failed to establish that the 18 plaintif fs had suffe red the concrete and particul arized 19 injury r equired of c onstitutional standing. 20 (quoting Defenders of Wil dlife, 504 U .S. at 562). 21 22 23 24 Id. at 1149 The Summ ers Co urt reviewed a plaintiff s affidavi t alleging that he suf fered injury in the past from developm ent on Fores t Service land. The Court re jected 25 this fac tual claim a s a basis for standing becau se it 26 was not tied t o appl icati on of the challeng ed 27 regulati ons, because it does not identify any par ticular 28 54 1 site, an d because it relates to past injury rathe r than 2 imminent and future injury that is sought to be 3 enjoined . 4 5 6 7 Id . at 1150. It was not sufficient for plaintif f to assert that he has visited man y Nati onal Forests and plans to visit other unnamed National Forests in the f uture, becau se although [t]here may be a chance, 8 [it] is hardly a lik elihood, that [plaintiff s] 9 wanderin gs will brin g him to a parcel about to be 10 affected by a projec t unlawfully subject to the 11 regulati ons. 12 13 14 15 Id. The Summ ers pl aintiff did refer specifically to a series o f projects i n the Allegheny National Fore st that were sub ject to the challenged regula tions. Howe ver, his 16 claim th at he want[ ed] to visit those specific sites 17 was insu fficient for lack of specificity. 18 vague de sire to retu rn is insufficient to satisfy the 19 requirem ent of immin ent injury: Such some day 20 intentio ns -- without any description of concrete plan s 21 22 23 24 Id. This or indee d any specif ication of when the some day will be -- do no t supp ort a finding of the actual or imm inent injury t hat our case s require. Id. at 11 50-115 1 25 (quoting Lujan, 504 U.S. at 564) (emphasis in the 26 original ). 27 28 To satis fy the injur y-in- fact component of Article 55 1 III stan ding S ummers requ ires environmental plain tiffs 2 to: (1) identify a particular site affected by the 3 challeng ed action th at they intend to visit; and (2) 4 5 6 7 provide evidence of concrete plans, including s pecific dates, t o visit those such sites. Plaintif fs bea r the burden o f showing th e likelihood that they will visit 8 such sit es. 9 must be a geographi c nexus between the individua l 10 assertin g the claim and the location suffering an 11 environm ental impact . 12 13 14 15 S ee id. at 1150-51. In other words, ther e Ashle y Creek Phosphate Co. v. Norton, 420 F.3d 934, 938 (9th Cir. 2005). geograph ic nexus mus t be site-specifi c. This Citing Summer s and Luja n, the Seven th Circuit observed: When 16 governme ntal action affects a discret e natu ral area, a nd 17 a plaint iff merely s tates that he uses unspecifie d 18 portions of an immen se tract of territory, such a verments 19 are insu fficient to establish standing. 20 United S tates, 577 F.3d 736, 742 (7th Cir. 2009). 21 22 23 24 Pollack v. However, repeated r ecreational use itself, accom panied by a cre dible allega tion of desired future use, c an be sufficie nt, even if relatively infrequent, to demonstr ate 25 that env ironmental d egradation of the area is inj urious 26 to that person. 27 Lumber C o., 23 0 F.3d 1141 , 1149 (9th Cir. 2 000). 28 Ecologi cal Rights Foundation v. Paci fic 56 Mr. 1 Dillon d oes not need to show actual harm, as a me re 2 increas ed risk of h arm can itself be injury in f act 3 sufficie nt for stand ing. Id. at 115 1. 4 5 b. Previous Ruling. 6 Although Plaintiffs previous motion for summary 7 judgment on the issu e of standing was denied with out 8 prejudic e on the gro und that there were material factual 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 disputes relevant to causation and redressibility , Mr. Dillon w as found to have satisfied the injury-in- fact requirem ent: ... Mr. Dillon decla res that he has visited the Delta t o appreciate the natural environment, to escape f rom the urba n environment, and to engage in numer ous recreati onal activities, including recreati onal boating , swimming, snorkeling, kayaking , and wildli fe vi ewin g. Dillon De cl., Doc. 57- 5, at ¶3. T hrough these acti vities he has bee n able to ga in significant exposure to the Sacr amento River winter-run chino ok salmon, Central Valley sprin g-run chi nook salmon, Central Valley steel head, and delta smelt ( Listed Species ). When [he] encounters the Listed S pecies [he] is generally filled with a sense of appreciatio n and satisfaction. Id. Mr. Dill on Continues : My encou nters with t he Listed Species have occurred through a v ariety of different circumst ances. For example, I have witnesse d salmon mig rating through the Delta from a k ayak, and vi ewed delta smelt while riding o n a trawl ve ssel. I have also viewed L isted Specie s while photographing the Delt a s diverse wildlife, and while swimming along the D elta s ba nks. These ar e but a fe w examples o f my various experien ces, and are in no way intended to be a com prehensive l ist. 57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Id. at ¶ 4. He furth er states that the decline of the L isted Specie s, which I have personally witnesse d over the l ast seven years, has negative ly impacted my use and enjoyment of the Delta. For example, as a result of the decline of the L isted Specie s, my ability to fish for and view salmon has been significantly impaired . Id. at ¶6. Mr. Dillon is a person for who m the aesthetic and recreational va lues of the a rea will be lessened by the challenged activity . Fr iends of th e Ea rth v. Laidlaw Envtl. S ervs. (TOC), Inc., 52 8 U.S. 167, 18 3 (2000). [Summary of Summers requirement that plain tiffs have con crete plans to visit the affe cted area.] In suppo rt of their motion for partial summary judgment on the issu e of standing, Plaintiffs original ly submitted only Mr. Dillon s declarat ion. His de claration arguably did not satisfy Summers beca use, alth ough Mr. Dillo n plans t o continue f requenting the Delta, Dillon D ecl., Doc. 5 7-5, at ¶ 6, he does not set forth an y specific f acts describing concrete plans f or doing so. How ever , on May 27, 2009, Mr. Dill on filed res ponses to State Defendant s interrog atories, in which he describes spec ific plans to return to t he Delta to fish for Listed Species over the 200 9 Labor Day weekend. See Second F uchs. Decl., Doc. 69-2, at Ex. A. This is suffi cient eviden ce of Mr. Dillon s concrete plans. State Defen dants no longer contest Mr. Dillon s injury in f act. Mr. Dillon satisfies the inju ry in fact r equirement for purposes of standing . Doc. 85 at 29- 31. This rul ing is not d ispositive of the challenge t o 23 standing here, becau se a plaintiff must retain st anding 24 througho ut the litig ation. 25 requirem ent of Article III of the U.S. Constitution 26 subsist s through al l stages of federal judicial 27 28 T he case-or-con trover sy proceedi ngs, trial a nd appellate. 58 Lewis v . Cont inent al 1 Bank, 49 4 U.S. 472, 477 (1990). 2 fit for federal-court adjudication, an actu al con trove rsy 3 must be extant at all stages of review, not merely at the 4 5 6 7 time the complaint i s filed. To qualify as a case Davis v. Fed eral E lecti on Commissi on, 12 8 S. Ct. 2759, 2768 (2008) (internal quotatio n and citati on omitted). [T]he requirem ent that 8 a claima nt have sta nding is an essential and unc hanging 9 part of the case-or- contr oversy requirement of Article 10 III. 11 parties must continu e to have a personal stake in the 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Id. (q uoting Lujan, 5 04 U.S. at 560). outcome of the lawsu it. The Lew is, 494 U.S. at 478 (interna l quotations and citations omitted). c. Does Mr. Dillon Rema in a Person For Whom the Aest hetic and Re creational Values of a Particul ar Area will be Lessened by the Challeng ed Activity? (1) Mr. Dillon s General Assertio ns of Harm. For the purposes of standing, an environmental plaintif f, such as M r. Dillon, demonstrates injur y in fact if he uses the affected area and is a person for whom the aesthetic a nd recreational values of the area will be lessen ed by the challenged activity. Laidlaw, 528 U.S. at 183. Mr. Dill on has visit ed the Sacramento-San J oaquin Delta mo re than 200 times since 2001, including 5 visits 59 1 in 2008- 09. 2 hundred days in the Delta engaging in numer ous 3 recreati onal activit ies, including boating, fishi ng, 4 5 6 7 During his visits, Mr. D illon spent several wildlife photography , swimming, snorkeling, kayak ing, and viewing wildlife, in cluding the listed salmon and steelhea d. Se e Rubin Opp n Decl., Doc. 119-3, Ex h. 2 8 ( First Dillon Depo. ) at 49:3-52:13, 25:19-26:2, 26:2 1- 9 27:2; Di llon Opp n D ecl., Doc. 119-2, ¶¶ 1-2; Wordham 10 Decl., D oc. 113-4, Exh. B ( Dillon Interrog . Resp s. ) at 11 3:22-7:1 6. 12 13 14 15 During h is fishing t rips in the Delta, Mr. Dillon fishes f or a variety of fish, including striped bass, steelhea d, and salmo n, when doing so is legal. F irst 16 Dillon D epo. at 33:6-10, 34:8 -10, 35: 25-36: 8, 73: 24-74 :6, 17 76:2-6; First Dillon Decl., Doc. 114-4 ¶5. 18 Mr. Dill on enjoys vi ewing the Delta s native 19 wildlife , and has vi ewed and taken photos of salm on both 20 in the D elta and in rivers upstream of the Delta. 21 22 23 24 First Dillon D epo. at 55:1 2-18, 60: 11-23, 1 03:16-104:13; Fir st Dillon D ecl. ¶¶ 3-4; Dill on Opp n Decl. ¶¶ 1-2. While Mr . Dillon tri es to enjoy the aesthetic 25 benefits of the Delt a and its native fish, the deplete d 26 numbers of the Liste d Species make it more diffic ult to 27 view and take pictur es of them. 28 60 First Dillon Dep o. at 1 58:2-17; First Dillon Decl. ¶¶ 3-4, 6; Dill on Opp n De cl. 2 ¶¶ 1-2, 4. 3 (2) 4 5 Recreati onal Interes ts. Mr. Dill on s alleges injuries to his recreational 6 interest s, including boating, swimming, fishing, 7 kayaking , skiing, wa ke-boarding, jet-skiing, snorkelin g, 8 water-ca mping, and w ildlife photograp hy. 9 10 11 12 13 16 17 18 It is undis puted that M r. Dillon admitted that , of h is recreati onal interes t, all but his interests in f ishing and wild life photogr aphy have not been impaired b y the status o f the listed species. 14 15 SDUMF #9. (a) SDUMF #13. Fishing. Mr. Dill on clearly c laims that his ability to fis h for salm on has been adversely affected by the str iped bass spo rt fishing r egulation. Dillon Interrog. Resps, 19 #3 at 8: 10-18. 20 restrict ions on recr eational salmon fishing impos ed in 21 2009. 22 his boat in January 2008. 23 visits t o the delta have dropped considerably, fr om 24 25 26 27 28 I d. In particular, he cites the recen t However, Mr. Dillon has admitted that he sold SDUMF # 35. Since the n, his approxim ately 120 da ys a year, to three or four t imes in 2008 and once in 200 9. S DUMF ## 39-40. Ho wever repeate d recreation al use itself, accompanied by a credible allegation of desired future use, can be 61 1 sufficie nt, ev en if relatively infrequent, to demonstr ate 2 that env ironmental d egradation of the area is inj urious 3 to that person. 4 5 6 7 8 Ecologi cal Rights Foundat ion v. Paci fic Lumber C o., 23 0 F.3d 1141 , 1149 (9th Cir. 2 000). The relative frequency o f Mr. Dillon s visits to the Delta is not fata l to his sta nding. State De fendant poin ts out that because the salmo n at 9 issue in this litiga tion - the Sacramento River winte r- 10 run and Central Vall ey spring-run - are li sted a s 11 endanger ed or threatened, the only salmon that Mr. Dillon 12 can fish for legally is fall-run Chinook. 13 13 14 15 Theref ore, Mr. Dill on s interes t in fishing cannot be negati vely affected by any impa ct of the striped bass sportf ishing 16 regulati on on the Li sted Species, because he cannot 17 lawfully fish for th ose species until they recove r and 18 take pro hibitions ar e lifted. 19 (b) 20 21 Wildlife Photo graphy . Mr. Dill on stated at his deposition that because of 22 the impe riled status of the Listed Species, if I were to 23 take -- or trying to take pictures of salmon it w ould be 24 more dif ficult becau se there are fewer. 25 26 27 28 13 First D illon Sa lm on f is hi ng i s re gul at ed b y se a son , no t by s pe ci es . Se e, e.g ., 1 4 Ca l. C od e. R egs . § 7. 00 . It wo ul d be u nl aw fu l for M r. Dil lo n to f is h fo r sa lmo n du ri ng t h e s ea so n wh en C en tr al Va ll ey spr in g- ru n an d Sa cr am ent o Ri ve r wi n ter -r un , tw o of t he l ist ed spe ci es a t is su e, a re mi gr at in g th r oug h th e De lt a. Mr . Dil lo n do es not c la im t o fi sh f or de lt a sm el t. SD UM F No . 45 . 62 1 Depo. at 58:3- 17; see als o Di llon Opp n Decl. ¶2. 2 Dillon r epeatedly st ated, when he goes to the Del ta, he 3 goes for a variety o f reasons, including viewing and 4 5 6 7 photographing the Listed Species. Mr. First Dillon Depo. at 49:8-22, 50:11 -13, 51:16- 52:13, 54:1-6, 54:25-55: 14 ( I d take pho tographs alm ost every time we went down t o the 8 Delta, f or one reaso n or another. ); Dillon Opp n Decl. 9 ¶2 ( bec ause there a re so few salmon left i n the Delta , I 10 have not made trips to the Delta specifically t o 11 photogra ph salmon or steelhead -- meaning f or that 12 13 14 15 limited purpose -- but I instead visited fo r mult iple recreati onal purpose s including viewing and photogra phing salmon and steelhead). Although Mr. Dil lon 16 has not been crystal clear about his intention to take 17 photogra phs of liste d species in the future, the 18 implicat ion of his t estimony, both in his initial and 19 suppleme ntal deposit ion, is that he has done so, is still 20 interest ed in doing so, and intends to do so in the 21 22 23 24 future. In its n otice withdr awing its motion for summary judgment , State Defe ndant asserts that the late filed 25 declarat ion of Mr. D illon and his deposition test imony 26 crate a triable issu e of material fact as to Mr. 27 Dillon s standing, s uggesting that Mr. Dillon s t estimony 28 63 1 regardin g his desire to return to the Delta to photogr aph 2 wildlife is not cred ible. 3 regardin g Mr. Dillon s credibility appears to foc us on 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 State Defendant s argu ment the vari able frequen cy of Mr. Dillon s visits to the Delta: As noted in the Stat e Defendant s Motion, the facts de veloped in d iscovery demonstrate that Mr. Dill on s in the Delta has been waning. Mr. Dillon t estified in deposition that, between 2001 and 2007, he vi sited the Delta on average 120 days per year, b ut that he had gone only four tim es in 2008, and only once in early 2009. Although he claimed in interrogatory responses to have specific pla ns to visit the Delta on several more occasio ns in 2009, including Labor Day, and in his Dece mber 1, 2 009 deposition he claimed an intent to visit during Christmastime, no ne of those plans materialized. After Mr . Dillon s D ecember 1, 2009 deposition, he appar ently develo ped a renewed enthusiasm for visiting the Delta. His declaration filed in support of Plaintiff s Motion (Doc. 114-4) evinced a desire to go houseboating some time in October, 2010. In op position to the State Defendan t s Motion, Mr. Dillon suddenly develope d an additio nal interest in visiting the Delta at the beginni ng of May. As not ed in the Stipulat ion and Orde r for the second deposition of Mr. D illon, these newly developed plans could not have been discov ered at Mr. Dillon s December 1, 2009 dep osition. Stipulation and Order Do c. 158) at 1 :7-8. Finally, on May 10, 2010, af ter the clos e of briefing, plaintif fs submitte d yet anothe r declaration by Mr. Dillon (Doc. 15 4), allegedl y evidencing his visit to the Delt a on April 3 0-May 1, and substantiating the inju ry in fact c laim in his April 23, 2010 declarat ion. Pursuant to stipulat ion, on May 27, 2 010, the State De fendant depo sed Mr. Dillon on the issues raised b y the late-filed declaration. Mr. 64 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Dillon s deposition testimony was consistent with his declaration . The Stat e Defendant recognizes that Mr. Dillon s most rec ent declaration and depositio n test imony contain testimony cr eating a potential triable issue of material fa ct as to whether Mr. Dillon has been injured by the State Defendant s enforcem ent of the s triped bass sport fishing regulati ons. Mr. Dil lon s waning interest and unrealiz ed plans bef ore the summary judgment motions were filed c all into question the credibil ity of his r ecently renewed interest. Because the court is precluded, on summary judgment , from weigh ing the evidence or making determin ations about witness credibil ity (Anderso n v. Liberty Lobby, Inc., 477 U.S. 242, 255 (198 6)) and beca use there is a potential triable issue of mat erial fact, the State Defendan t recognizes that summary judgment on Mr. Dill on s standin g is not appropriate at this time. Doc. 162 at 2- 3. This alo ne does not create a credibility issue th at must be resolved at trial, because even relativel y infreque nt recreatio nal use is sufficient to esta blish standing . Eco logical Rights Foundation v. Pacifi c Lumber Co., 230 F.3d 1141, 1149 (9th Cir. 20 00) ( recrea tional 21 use itse lf, accompan ied by a credible allegation of 22 desired future use, can be sufficient, even if relativ ely 23 infreque nt, to demon strat e that environment al degradat ion 24 of the a rea is injur ious to that person. ); see a lso 25 26 27 28 Sierra C lub v. Frank lin County Power of Ill., LLC , 546 F.3d 918 , 925 (7th C ir. 2008) (affirming summary judgment in favor of plaintif f after finding that plaintif f had 65 1 standing because she visited area every other yea r); 2 Bensman v. U.S. Fore st Serv., 408 F.3 d 945, 962-63 (7t h 3 Cir. 200 5) (plaintif f had standing to challenge a 4 5 6 7 proposed project alt hough he had visited the proj ect area only six times over 20 years and planned to retur n in winter or spring ). 8 Mr. Dill on s interes t in photographing salmon is a 9 concrete recre ational interest that may be impair ed by 10 State De fendant s ac tions. 11 (3) 12 Aestheti c Interests. Mr. Dill on also alle ges harm to his aesthetic 13 14 interest s in the Del ta. 15 sense of appreciati on and satisfaction when he views 16 the list ed species. 17 2. 18 19 20 21 22 23 24 25 26 27 28 He claims to have derive d a Dillon Interrog. Resps. # 3 at 6:1- At h is depositio n, Mr. Dillon specifically in dicated his enjo yment in vie wing wildife: Q. What are the aesthet ic benefits that you enjoy? A. In addit ion to those activities already listed i n the responses to interrogatories, there is the Q. Well, t hose activit ies, what are you referrin g to? A. Wildlife viewing. T he peace and quiet of being ne ar a running river. Just the atmosphere that bei ng in a wate r environment that supports many, ma ny types of flora and fauna is aestheti c.... First Di llon Depo. a t 60:11-23. 66 1 State De fendant argu es that standing is not suppo rted 2 by Mr. D illon s gene ral claim that he has been ha rmed 3 because the striped bass sportfishing regulations 4 5 6 7 negative ly impact his int erest in a biosys tem that is intact a nd healthy, SDUMF No. 33, citing Center for Biologic al Diversity v. Kempthorne, 5 88 F.3d 701, 707 8 (9th Cir . 2009), whi ch in turn relies on Summers, 129 S. 9 Ct. at 1 149. 10 Defendan t suggests. 11 generali zed harm to the forest or the envir onment will 12 13 14 15 Summers is more nuanced than State The Supreme Court held: Wh ile not alon e support st anding, if that harm in fact affects the recr eational or even the mere esthetic intere sts of the plai ntiff, that will suffice. 129 S. Ct. at 1149. Mr. Dill on claims th at, through his recreational 16 17 activiti es in the De lta, he has gaine d sig nificant 18 exposure to the Sac ramento River winter-run chinook 19 salmon, Central Vall ey spring-run chi nook salmon, Cent ral 20 Valley s teelhead, an d delta smelt. 21 22 23 24 ¶3. Thi s is not ent irely accurate. First Dillon Decl. at Mr. Di llon h as ne ver seen a s teelhead, ex cept perhaps at a hatchery or in a picture, SDUMF #23; he has only ever seen a delta smelt 25 at a sal vage facilit y or in a container on a traw l 26 vessel, SDUMF #25; and he has only ever seen three sal mon 27 in the D elta, all of which were dead or dying, SD UMF #11. 28 67 1 But, Mr. Dillon s li mited success at viewing the Listed 2 Species is not surpr ising, given how rare individ ual 3 members of the Liste d Species are in the wild. 4 5 6 7 L imited exposure to the List ed Species does not defeat hi s standing . See Nat l Wildlife Fed n v. FEMA, 345 F. Su pp. 2d 1151, 1162 (W.D. Wash. 2004) (plaintiffs demonstrated 8 injury i n fact becau se they averred that they obs erve, 9 photogra ph, and fish for chinook salmon and that the 10 complain ed of activi ty limited opportunities for 11 interact ing with sal mon). 12 13 14 15 Likewise , Mr. Dillon s reduced exposure to the De lta in recen t years as a result of his personal and f inancial decision to sell his boat does not defeat his cla im of 16 injury i n fact. 17 F.3d 114 9 ( recreati onal use itself, accompanied by a 18 credible allegation of desired future use, can be 19 sufficie nt, ev en if relatively infrequent, to demonstr ate 20 that env ironmental d egradation of the area is inj urious 21 22 23 24 See Ecological Right s Foun dation, 230 to that person. ). State De fendant asse rts that even if Mr. Dillon actually saw a delta smelt in the water, he admit s he 25 would no t be able to identify it. 26 Dillon a lso cannot t ell one run of salmon from an other, 27 and ther efore cannot determine whether the three salmon 28 68 SDUMF ## 27-29. Mr. 1 he saw w ere among th e listed species. 2 While th is could jeo pardize Mr. Dillon s standing claim 3 if Mr. D illon was as serting an interest in studying or 4 5 6 7 SDUMF ## 24. catalogi ng members o f the Listed Species, it is n ot fatal to his c laim of aest hetic injury. See Int l Ctr for Tech. v Johanns, 473 F. Supp. 2d 9, 22 (D.D.C 2007) 8 (finding that plaint iffs had standing even though they 9 could no t tell the differenc e between a genetically- 10 engineer ed plant and a resident plant, because 11 [p]lain tiffs alleg ed interest is in viewing nat ive 12 13 14 15 fauna, a nd the relev ant inquiry is whether injury to that interest is probably or has occurred, regardless of whether that interest is visible. ). 16 The unco ntradicted e vidence is that, even though his 17 visits h ave become l ess frequent in recent years and his 18 encounte rs with the Listed Species have been few and far 19 between, Mr. Dillon (1) has viewed salmon both in the 20 Delta an d in r ivers upstream of the Delta and (2) has 21 22 23 24 sought t o view liste d salmon and steelhead on man y occasion s. Se e Dillon Opp n Decl. ¶¶ 1-2; Dillon Interrog . Resps. at 5:26- 6:2, 7:26-8:1 (Mr. Dillon ha s 25 attempte d to have, a nd intends to continue having 26 signific ant and repe ated exposure to the Listed 27 Species) ; First Dill on Depo. at 49:3-22, 55:10-14, 28 69 1 103:16-1 04:13. 2 3 4 5 6 7 8 9 3. Does Mr. Dillon Reta in Concrete Plans to Visit the Delt a? Mr. Dill on testified at his first deposition that he has stan ding plans t o visit the Delta on a minimum of three da ys per year, July 4th, Labor Day, and aro und Christma s. SDSUF #49. H owever, it is undi sputed that , despite his previous assertions of intent to trav el to 10 the Delt a both over the Labor Day weekend and in December 11 2009, Mr . Dillon vis ited the Delta only one time in 2009 12 to photo graph wester n pond turtles and observe ot her 13 wildlife . 14 15 16 17 Dillon Su pp. Decl. at 147:23-24. explaine d that his p lans changed. Mr. Dillo n Id. at 146:17- 19. Mr. Dill on s testimo ny at his supplemental Deposi tion demonstr ates that he possesses concrete plans to visit 18 the Delt a in the fut ure. 19 on the S acramento Ri ver the day after his supplem ental 20 depositi on. 21 planned on joining s ome friends on their boat on e day 22 over the three-day [Labor Day] holiday in the 23 24 25 26 In fact, he had plans t o fish Dillon Supp. Depo. 173:14-15. He also neighbor hood of Will ow Berm, where they would p robably be ancho red offshore somewhere, to do some fishin g, some wildlife viewing, some photography, hopeful ly cat ch a 27 glimpse of an endang ered species or two. Id. at 18-21. 28 Mr. Dill on has also been planning one-to-two-wee k 70 1 houseboa ting trip ar ound October 2010 with other members 2 of his f amily and so me friends. 3 173:22-2 3. 4 5 6 7 Id. at 151:10-152:10; Although he has not put a deposit dow n on the houseboa t, he has te ntatively chosen a rental fir m in the central Delta. Id. at 16 7:15-168:6. The only reason he has not chosen speci fic dates for the trip is bec ause he 8 has been waiting to learn the trial date for this case. 9 Id. at 1 69:4-5 . 10 the delt a for a cou ple of trips in the spring o f 2011 11 to view wildlife, 173:24-174:1, but these plans are not 12 13 14 15 He also has tentative plans to return to yet conc rete. The undi sputed evide nce establishes t hat Mr. Dillon has demo nstrated inj ury in fact. As to this pron g of 16 standing , Plaintiffs motion for summary adjudica tion is 17 GRANTED. 18 19 20 21 22 23 24 25 26 27 28 4. Causatio n & Redress. a. Legal St andard Re: C ausation. The July 16, 2009 De cision summarizes the relevan t legal st andard : The seco nd standing requirement, causation, requires that the in jury be fairly traceable to the c hallenged ac tion of the defendant, and not be the result o f the independent action of some thi rd party not before the court. Ty ler v. Cuomo , 236 F. 3d 1124, 1132 (9th Cir. 20 00). The caus ation elemen t is lacking where an injury caused by a third party is too tenuously connecte d to the act s of the defendant. Citizens for Better Forestry v. U.S. Dept. of 71 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Agric., 341 F.3d 961 , 975 (9th Cir. 2 003). For the purp oses of dete rmining standing, while the causal c onnection ca nnot be too speculative, or rely on conjecture a bout the behavior of other parties, [it] need n ot be so airtight ... as to demonstr ate that the plaintiffs would succeed on the meri ts. Ocean Advo cate s, 402 F .3d at 860. National Audubon Soc iety v. Davis, 307 F.3d 835 (9th Cir . 2002), pro vides guidance. The plaintif fs in Davis, bird enthusiasts , alle ged that a C alifornia la w banning the use of leghold traps to capture or kill wildlife vio lated the Migrator y Bird Treat y Act. Id. at 84 2-843. Prior to the passage of that California law, federal officials us ed leghold traps against predator s to protect several bird species. Id. at 844. The Ninth C ircuit held that plaintiffs had stan ding to challenge the leghold trap ban, finding their injury was fairly traceable to the prop osition beca use: [T]he fe deral govern ment removed traps in direct r esponse to P roposition 4 (whether under di rect threat of prosecution or not). Re moval of the trap s le ads to a larger populati on of predat ors, which in turn decrease s the number of birds and other protecte d wildlife. Id. at 8 49. This c hain of causation has more than one link, but i t is not hypothetical or tenuous; nor do appe llants challenge its plausibi lity. Id. Here, it is Plaintif fs burden to establish that their th eory of caus ation is at least plausib le. Id. See also Envtl. De f. Ctr. v. EPA, 344 F.3d 832, 867 (9th Cir. 2003) ( A plaintif f who shows that a causal relation is probabl e has stand ing, even if the chain cannot b e definitive ly established. ). Plaintif fs do not ha ve to establish causation by a prepon derance of t he evidence required to prevail on the merit s. Ocean Advocates, 40 2 F.3d at 860 (while t he causal connection cannot be too speculative, or rely on conjecture about the beha vior of othe r parties, [it] need not be 72 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 so airti ght ... as t o demonstrate that the plaintif fs would suc ceed on the merits. ). Because Plaintiffs a re moving for summary judgment , to prevail , there must be n o material facts th at call into question the plausibility of their theory of c ausation. Doc. 85 at 31- 34 (footnotes omitted). b. Analysis . The July 16, 2009 De cision concluded that Plainti ffs were not entitled to summary judgment on the caus ation prong of standing: CDFG s C onservation Plan states that by modifyin g the stripe d bass minimum size limits from 18 to 26 inches , the striped bass populati on will incr ease by almost 210,000 fish. Conserva tion Plan at 117. If true, the nature and exte nt of the sp ort-fishi ng regulations have a cogniz able impact on the striped bass populati on. CDFG co unters that the Conservation Plan als o concluded that CDFG management efforts that do not include an artificial striped bass stocking program wou ld result in the long-term decline of the adult striped bass population to 515,000 adults. Doc . 65 at 3 (citing Conserva tion Plan at 37). The Conservation Plan addition ally conclud es that maintaining the striped bass populat ion at stable levels requires much more r estri ctiv e sport-fishin g regulati ons than are presently in force. Id. (citing Conservation Plan at 117). Plaintif fs evidence of a link between higher striped bass abundan ce and increased Listed Species mortality is materially disputed. For example, CDFG s Cons ervat ion Plan concluded that a stripe d bass popul ation of 765,000 adults maintain ed through a n artificial stocking program would consum e 6 percent of the Sacramen to River win ter-run C hinook salmon populati on, 3.1 perc ent of the Central Valley Spring-r un Chinook s almon population, and 5.3 percent of the delta smelt population. 73 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Conserva tion Plan at 45, 56, 70. Striped bass predatio n upon the L isted Species will be slightly lower in th e absence of the stocking program, but will st ill be present and will range fr om 3.4-4.7 p ercen t of the winter-ru n, 2.3 perc ent of the s pring-run , and 3.6 perc ent of the d elta smelt. Id. DFG reaffirmed these estimate s in its Sta tus Review of the Longfin Smelt, r eleased Janu ary 2009. Second Rubin Decl., D oc. 78, Ex. 13 at 28. These statistics support Plaintiffs contention that increased striped bass populat ions adversely affect the Listed S pecies abun dance. However, the statist ical analyses described in the Decl aration of M atthew L. Nobriga raise question s about Plaintiffs assertion that ending t he enforceme nt of the striped bass sport-fi shing regula tions will cause a measurab le increase in the abundance of the Listed S pecies. Nob riga opines that it is possible that reduct ions in striped bass populati ons will hav e uni nten ded, negative effects on Listed Sp ecies abundance. Specific ally, Nobrig a emphasizes that, while striped bass prey on delta smelt, they also prey on one o f the delta smelt s primary predators and comp etitors, the Mississippi silverslide. Nobriga Decl. at ¶¶ 7, 10. Nobriga opines that allowing depletion o f the striped bass populati on may actua lly lead to decre ased d elta smelt ab undance, bec ause striped bass predation of Missi ssippi silve rslide would be reduced. Id. at ¶ 10. Nobriga references r esearch performed by ot hers contradi cting the hy pothesis that striped bass predatio n had a majo r influence on salmon survival . Id. at ¶1 2. N obri ga also perfor med his own regression a nalyses of the relationship between striped bass populations and those of the List ed Species, evidencing a positive relation ship between striped bass abundance and winter-r un abundance , and no relationship between striped bass abundance and either spring run, or delta smelt abundance. Id. a t ¶¶ 16-17. The Nobr iga Declarat ion raise s serious ques tions 74 1 2 3 4 5 6 7 about th e plausibili ty of Plaintiffs causal theory b y challengin g Plaintiffs fundamental assertio n that there is some, measurable link between increased st riped bass abundance and Listed S pecies morta lity. This is all that is required to successf ully oppose Plaintiffs motion f or summary a djudication on the issue of standing based on th e extent of the dispute over causatio n. Id. at 3 4-36 ( footno te om itted). 8 Plaintif fs maintain that any dispute over whether 9 there is a measurable lin k between striped bass a bunda nce 10 and List ed Species m ortality was answered conclu sively 11 because Marty Gingra s, a CDFG scientist, and Mr. Matthew 12 Nobriga admit that (1) increasing striped bass a bundance 13 14 15 16 17 18 increase s striped ba ss predation on the Listed Sa lmon and (2) that reducing st riped bass predation would be nefit the popu lations of t he Listed Salmon. Doc. 116 at 19. It is un disputed tha t Mr. Gingras and Mr. Nobriga both sta ted that the following general fact s were true: 19 (a) Stri ped bass pre y on winter-run a nd spr ing- 20 run. 21 22 23 24 St ate Defendan t s Response to PSUF #3. (b) Stri ped bass pre dation on winter-run an d spring-r un increases as the striped bass populati on increases . State Defendant s Response 25 to PSUF #4. 26 (c) Stri ped bass pre dation is one of a number of 27 factors that contrib ute to the decline of 28 75 1 winter-r un and sprin g-run . 2 Response to PSUF #7. 3 4 5 6 7 S tate Defendant s But, as discussed ab ove, these statements may be qualifie d by other e vidence in the record. Most obviousl y, State Def endant disputes the sig nifica nce o f striped bass predati on on winter-run and sp ring-run. 8 See, e.g ., Sta te Def endan t s Responses to P SUF #3 9 (pointin g out that M r. Gingras testified repeated ly that 10 offering figures for striped bass predation on th e listed 11 Species was speculation, Gingras Depo. 388: 23-389 :2, a nd 12 13 14 15 16 that Mr. Nobriga sim ilarly stated that trying to make a predatio n estimate w ould be like pulling numbers out of the air, Nobriga De po. 119:13-18). Addition ally, State Defendant materially disputes 17 each rep ort and expert op inion offered by P laintiffs in 18 support of Plaintiff s estimates of the significa nce of 19 striped bass predati on on the Listed Species. 20 example, Plaintiffs rely on the expert report of Dr. 21 22 23 24 Fo r Charles H. Hanson, w hich estimates a striped bass predatio n rate of 21 % on winter-run. See PSUF #3(L). State De fendant firs t point out that Dr. Hanson s report 25 relies o n a report b y Dr. David H. Bennett, which State 26 Defendan t maintains is flawed and its conclusio ns 27 dispute d as follow s: 28 76 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bennett s Expert Report i s refuted by Botsf ord s Expert R eport. Botsf ord Expert Report. Among other cr itical flaws , Bennett has no information on angle r behavior ( Bennett Dep. 39:16-24, 40:36) (Word ham Decl., E xh. J), and did not include density dependence o r stock- recruitment in to his mode l. Botsford Expert Report, pp. 7-17 . Bennett did not use accepted method[s]. Id. at p. 7. Re lying on cre el survey data that do not serve as a proper pr oxy for changes in the striped bass sport f ishing regulations, Bennett drew uns upported con clusi ons about angler behavior . Id. at p. 11. As Botsford stated, It is diffi cult to say how well so much can be predicte d from so li ttle information, especially in the a bsence of an y analysis or statements regardin g the precis ion of the estimates. Id. Botsford summarizes his review of Bennett s report b y concluding that Bennett s conclusions are with out support and that it is impossible to calculat e how much s triped bass populations might de cline if enf orcement of the striped bass sport fi shing regulations were enjoined: From my evaluation i t is clear that none of Dr. Benn ett s modeli ng analyses lead to the conclusi on that the striped bass population will dec line by 60-70%. Furthermore, any such dec line cannot be precisely predicted because of the uncertainty in the stockrecruitm ent relation ship at low abundance and the future behav ior of fishermen if the regulati ons were rem oved. Id., p. 17. Botsford also points out errors in Bennett s yield-per- recru it calculations, includin g that they rely on the flawe d resu lts of the i ncorrect ear lier calculations, which were bas ed on faulty assumptions. Id., pp. 1314. Bennett does not con sider himself a modeler. Bennett dep., 17:15- 17.) Bennett developed his model hi mself, witho ut assistance. Id. 37:9-19. His model was not peer-reviewed, and did not include density depe ndence. Id., 44:14-18. Bennett admitted tha t there are insufficient data to formulate a stock-rec ruitment model . 77 1 Id., 40:3-4. 2 Dr. Benn ett conceded he did not have data to calculat e a stock-recruitment relatio nship. Id., 39:16-24 , 40:3-6. An d Dr. Ben nett conceded that stock-re cruitment in cludes density-dependen t factors (as well as density-independe nt factors) . Id., 41:2- 7. Ul timately, Dr. Benn ett s calculat ion of a 60- 70% d ecline was based primari ly on his own guess that at that figure a numbe r of fisherm en are not going to be interest ed in fishin g out there. Id., 57:1-4. But Dr. Bennett has absolutely no data to support that guess. It is pure speculation. And even if he did have some data, he has no qualific ation in int erpreting it, as he has never pu blished a pe er- reviewed paper on angler behavior . Id., 64:10 -65:23. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 State De fendant s Re sponse to PSUF #2. Dr Hanso n s conclusi on is disputed by Mr. Nobriga , who stat es: It is my conclusion that these [Dr. H anson s] numbers cannot be cl aimed to have any reasonable scientif ic support. They were developed using a rudiment ary consumpt ion index as if it were actually estimating listed fish consumption. Further, they were d eveloped without regard for uncertai nty in the i nput data and the sensitiv ity of the r esults to that uncertainty. Hanson ( 2009) was ce rtainly aware of this his report w as peppered with terms like bias, uncerta inty, and error. 22 State De fendant s Re sponse to PSUF #3, Doc. 194, Ex. E . 23 The Stat e Defendant s response continues: 24 25 26 27 28 Nobriga pointed out that the food web is much more com plex than th e old food chain model suggeste d. SUF Respo nse No. 3(L). The San Francisc o Estuary is very complex. SUF Response No. 3(L) . Using the examp le o f the overbite clam, an invasive sp ecies in the Delta, Nobriga demonstr ated the unp redictability that this 78 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 complexi ty produces. SUF Response No. 3(L). Nobriga then used bo th simple and multiple regressi on analysis to show that striped bass predatio n has no obv ious negative effect on the abundanc e of the Lis ted Species. SUF Response No. 3(L) . In fact, 1 2 of the 20 regressions produced statistical ly significant positive correlea tions betwee n striped bass populations and popu lations of t he Listed Species. SUF Response No. 3(L). Hanson t estified tha t he is not an expert on the subject, even if he can be called knowled geable. Han son Dep., 29:14-23, Wordham Decl., E xh. C. Hanso n s opinion regarding replacem ent of strip ed bass by other predators (such as largemouth bass and white catfish) is not an e xpert opinio n, but only his sense. Id., 295 :12-18. Hanson t estified tha t striped bass have coexiste d with the L isted Species since the 1800s, a nd that the effect that striped bass have had on the List ed Specie s over that ti me is largely unknown. Id. , 298:3-14. Hanso n testified that in his expert o pinion, there may not be adequate outflows in the Delta for the recovery of the L isted Specie s, whether or not striped bass are eliminated. Id., 339:23-342:22. In 2008, Ha nson stated in a declaration that t here is no ev idence that changes in predation mortalit y resulted i n the observed decline in salmonid s in 2007. D eclaration of Charles H. Hanson P h.D. in Supp ort of Defendant Interven ors Positio n Regarding Interim Remedies , May 27, 20 08, in Pacific Coast Federati on of Fisher men s Association/Institute for Fish eries Resour ces v. Gutierrez, E.D. Calif., Case No. 1:0 6-CV- 00245 OWW-GSA (Han son Decl.), 22:23- 26, Wordham Decl., Exh. D. Hanson further stated that a large number of factors have bee n identified , in addition to State Water Project and Central Valley Project operations, that aff ect the popu lations of Central Valley salmonid s. Id., 30:1 9-20. He listed many of these, w hich include d predation by non-native invasive species. Id., 30:21 - 24. Bu t he a lso stated t hat very lit tle information is available 79 1 on the r elative cont ribution of these and other factors on salmonid populations. Id., 30:24-27. When he listed actio ns that could be taken during a n interim pe riod up to March 2009 to benefit both winter- run a nd spring-run Chin ook salmon ( as well as s teelhead), Hanson did not include reducing pre dation by striped bass. Id., 45:24-48 :26. 2 3 4 5 6 7 8 9 10 11 Id. All exp erts a gree that striped bass predation results in mortality of at le ast 5% of the listed salmonid populations each year. PSUF ## 3 & 7. Howev er, this is not eq uivalent to a finding that th e invalidation 12 of the s triped bass sportfishing regulations woul d 13 similarl y increase l isted salmonid mortality by a ny 14 measurab le quantity. 15 Section 9 claim in t his case focuses on a habitat 16 17 18 19 20 As discussed above, g iven t hat t he modifica tion that af fects the entire population o f the listed s pecies, sect ion 9 requires proof of some populati on-lev el effect. For causation, populati on-le vel mortality for the species must be caused by increased 21 striped bass populat ions resulting from the enfor cement 22 of the s portfishing regulations. 23 24 25 26 27 28 For the purposes of standing, a plaintiff need no t prove su ccess on the merits. EPA, 344 F.3d See Env tl. Def. Ctr. v. at 86 7 ( A plaintiff who shows tha t a causal r elation is probable has standing, even if the chain ca nnot be defi nitively established. ); 80 Oce an 1 Advocate s, 402 F.3d at 860 (while the causal conn ection 2 cannot be too specu lative, or rely on conjecture abou t 3 the beha vior of othe r parties, [it] need not be s o 4 5 6 7 airtight ... as to d emonstrate that the plaintiff s would succeed on the merit s. ). The summary judgment s tandard requires that the fa cts be viewed in a light most 8 favorabl e to the non-moving party, in this case the St ate 9 Defendan t. 10 demonstr ate that it is probable that State Defend ant s 11 conduct has a significant population-level effect on t he 12 13 14 15 Viewed i n this light, the facts do no t listed s pecies. To the contrary, as was the case in the first ro und of summary judgment motions, the evidence, includin g the Nobrig a Declaration, raises a genui ne 16 dispute about the pl ausibility of Plaintiffs cau sal 17 theory. 14 18 For the same reasons , there are serious factual 19 disputes about the p lausibility of Plaintiffs contention 20 that inv alidation of the striped bass sportfishin g 21 22 23 24 25 26 27 28 regulati ons would re dress their injury. In the c ontext of Centr al Delta s C VPIA affirmative defense, Pla intiffs appear t o have aband oned their demand to invalida te the 14 NM FS s r ec en t le tt er to C FG C re co m men di ng t ha t th e Co mm iss io n eli mi na te s tr ip ed b as s s po rt fi sh in g re gu la ti on s to re du ce [s tr ip ed bas s] p re da to ry i mp ac t a nd t he re by inc re as e su rv iv al o f nat iv e fi sh by op en in g th e st ri pe d b as s se as on yea r ro un d an d re mo vi ng mi ni mu m siz e an d ba g li mi ts , Doc . 16 0- 1, d o es no t ch an ge t he e vi den ti ar y sit ua ti on o n su mm ar y jud gm en t. Th e NM FS l et te r is c er ta inl y rel ev an t, b ut i s no t dis po si ti ve . 81 1 sportfis hing regulat ions. 2 theory o f redress is even more tenuous. 3 4 5 6 7 8 Plaintif fs motion f or summary adjudication on th e causatio n and redres sibility prongs of standing i s DENIED. D. Merits. 1. 9 10 If this is the case, their Plaintif fs Motion f or Summary Judgment on Their Section 9 Claim. Plaintif fs affirmati vely move for summary judgmen t 11 that Sta te Defendant s enforcement of the striped bass 12 sportfis hing regulat ions violates ESA § 9 by taki ng of 13 Listed S almonids wit hout a take permit. 14 be denie d for the sa me reasons that the motion for 15 16 17 18 Th is motion must summary adjudication on the standing and redress prongs of stand ing is denie d. There are disputes of mat erial fact reg arding causa tion (i.e. whether State Defe ndant s 19 conduct causes harm by habitat modification in vi olation 20 of ESA § 9 s take prohibi tion). 21 22 Plaintif fs motion f or summary judgment on the is sue of Secti on 9 liabili ty is DENIED. 23 24 2. CVPIA. 25 Plaintif fs seek summ ary judgment that the CVPIA d oes 26 not prov ide a legiti mate affirmative defense in t his 27 case. 28 C entral Delta s CVPIA defense was addressed in 82 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 detail i n the July 1 6, 2009 Decision: The prov isions of th e Central Valley Project Improvem ent Act, Pub .L. 102-575, 106 Stat. 4600, Ti tle 34, 106 Stat. 4706-31 (1992) pertaini ng to anadro mous fish, which are defined to include s triped bass, [] are a bar to a ny action to enforce any inconsis tent provisi ons of the Endangered Species Act. Doc. 20 at 13. Plain tiffs request summary adjudica tion to fore close this affirmative defense, the operati ve effect of which would be to exemp t CDFG s enf orcement of strip ed bas s sport-fi shing regula tions from the ta ke prohibit ions under S ection 9 of the ESA, 16 U.S.C. § 1538 (a)(1) (B), and the requirement that CDF G obtain an incidental take permit. The CVPI A contains n umerous provisions calling for prot ection and e nhanc emen t of striped b ass within t he Sacrament o-San Joa quin Delta. CVPIA section 3403(a) defi nes the term anadromous fish to include st riped bass, making applicab le section 3 406(b)(1) s maintenance and restorat ion provisio ns. That section requires the Secr etary of Int erior to develop within three ye ars of enact ment and implement a program which ma kes all reas onable efforts to ensure that, by the year 20 02, natural production of anadromo us fish in C entral Valley rivers and streams will be sustainab le, on a long-term basis, a t levels not less than twice the average levels a ttained duri ng the period of 1967-1991. To this end, it is u ndisputed that FWS has establis hed a doubli ng goal for striped bass of 2,500,00 0 fish. McDa niel Decl., Doc. 66-4, at ¶3 & Ex. B (Final Resto ration Plan for Anadromous Fish Res toration Pro gram, January 9, 2001) at 910. It i s also undis puted that this goal has not been ach ieved. Id. a t Ex. C (Anadromous Fish Restorat ion Program Doubling Graphs for striped bass). Section 3406(b)(1)(B) provides that the Secretar y is authori zed and directed to modify Central Valley Proje ct operations to provide flows of suitable qu ality, quantity, and timing to prote ct all life stages of anadromous fish.... Section 34 06(b)(1)(D)(2) requires that the Secr etary upon enactment of this title dedicate and manage annually 800,000 acre-feet of Centr al Valley Pr oject yield for the primary 83 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 purpose of implement ing the fish, wildlife, and habitat restoration purposes and measures authoriz ed by this t itle.... This pr ovision has been int erpreted to require that the Secretary give pri macy to its anadromous fish doubling program in the alloc ation of the 800,000 acrefoot CVP yield dedic ation. See San Luis & Delta Mendota Water Auth. v. U.S. Dept. of the Interior , --- F. Sup p. 2d --- , 2009 WL 1362652 (E.D. Ca l. 2009); Bay Ins titute of San Fran cisco v. Unite d States, 87 Fed. Appx. 637 (9th Ci r. Jan. 23, 2004). Beca use striped bass are included in the stat utory definition of andadro mous fish, they are intended and designat ed beneficia ries of these efforts. CVPIA § 3403(a ). Section 3406(b)(14) is directed specifically to striped bass, requir ing the Secretary to develop and impleme nt a program which provides for modi fied operati ons and new or improved control structures a t the Delta Cross Channel and Geor giana Slough during times when signific ant numbers of striped bass eggs, larvae, and juvenile s approach the Sacramento River in take to the Delta Cross Channel or Georgian a Slough. Certain CVPIA provis ions require the Secret ary to coord inate with s tate agencies to protect anadromo us fish in g eneral and striped bass in particul ar. For exam ple, Section 3406(b)(21) requires that the Se cretary assist the State of Californ ia in effort s to develop and implement measures to avoid lo sses of juvenile anadromous fish res ulting from unscreened or inadequately screened diversions on the Sacramento and San Joaquin rivers, thei r tributaries, the Sacramen to-San Joaqu in De lta, and the Suisu n Marsh. Similarly, s ection 3406(b)(18 ) requires that the Secretary if requested by the State of Californ ia, assist i n developing and implemen ting managem ent measures to restore the striped bass fishery of the Bay-Delta estua ry. Such mea sures must b e coordinated with efforts to prote ct and resto re native fisheri es. Id. Central Delta is cor rect that [i]t cannot be reasonab ly disputed that Congress intended to protect and restore striped bass. Doc. 66 at 5. However, Congress al so expressed its intention in CVPIA § 3406(b), that the Secretary operate the Cent ral Valley P roject to meet all obligati ons under st ate and federal law, includin g but not li mited to the federal 84 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Endanger ed Species A ct.... In light of the fact that the CVPIA expre ssly requires compliance with the ESA, Plaintiffs argue that their E SA claims c annot be bar red as a matter of law by the CVPI A. Doc. 57-2 at 5 -7. Central Delta rejoins that the mor e specific, and morerecently enacted, pr ovisions of the CVPIA requirin g restoratio n of the striped bass fishery should prevail over the ESA s earli erenacted, general req uirements. Plaintif fs cite Morton v. C.R. Mancari, 417 U.S. 535, 550 -551 (1974), for the proposition that courts are not at l iberty to pick and choose among co ngressional enactments, and when two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congress ional intent ion to the contrary, to regard e ach as effec tive. Mancari an d its progeny concern the repeal by implication of an earlier, specific pr ovision, by a later-enacted, general one. Here, t he issue is whether a later, specific provision r enders inapplicable an earlier- enacted gene ral one. Courts h ave a duty to const rue statutes harmoniously whenever possible . 2B N. Sing er & J. Singer, Sutherland Statutes and Statuto ry Construction § 53:1 (7th ed. 2008 ). Central Delta is cor rect that the CVPIA is the more rec ent and more specific expression of Congress ional intent . Central Delta suggests that Rod gers v. United States, 185 U.S. 83, 89 (1902) s ets forth th e app lica ble canon of statutor y constructi on: Where th ere are two acts or provisions, one of which is special and particular, and certainl y includes t he matter in question, and the other genera l, which, if standing alone, w ould include the same matter and thus con flict with t he special act or provisio n, the speci al must be taken as intended to constitu te an exception to the general act or provi sion, especially when such gen eral and spe cial acts or provisions are cont emporaneous, as the legislature is not to be pres umed t o hav e intended a conflict . Central Delta ignore s the law that a later, more specific statute onl y trumps an earlier general one wher e the two st atutes are in conflict. Can the numerous CVP IA provisions directing the 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Secretar y of the Int erior, in consultation with other fe deral agenci es, to protect and enhance the stri ped bass pop ulation, be harmonized with applicat ion of secti on 9 s take prohibition to CDFG s e nforcement o f the striped bass sportfishing regulations and more general application of the E SA? On Plain tiffs motion for summary adjudica tion on an a ffirmative defense for which Central Delta has th e burden of proof at trial, Plaintif fs must show an absence of evidence to support the nonmovin g party s case. Soremekun, 509 F.3d at 98 4. Pla intif fs m aintain, and h ave presente d evidence t o support their claim, that State De fendant s en forcement of the sportfishing regulations necessarily take Listed Species, and that la wful application of the ESA to State Defendant s enforcement activities will require elimination of (or substantial modifica tion to) tho se sport-fishing regulati ons, which a re causing jeopardy to Listed S pecies. The State rejoins that the current sport- fishing regulations are critical to the m aintenance o f current striped bass abundanc e levels. Th e State s evidence suggests that the continued e nforcement of these regulati ons, and/or the promulgation of more stringen t protection s, may be necessary to achieve the 2,500,00 0 striped bass population goal pro mulgated by the Servi ce. This pre sents a mate rial factual dispute over the effe cts of CDFG s striped bass regulations on the b ass and List ed Species populations. The express language and the legislative purpose of the CVPI A do not evi nce an intent to abrogate applicat ion of the E SA. Only after the fact s are develope d will it be possible to determine if a conflict in operatio n exists between implemen tation of th e ESA to the sport-fish ing regulati ons and achi eving the CVPIA objectives by appli cation of th ose regulations. Plaint iffs motion f or summary a djudication of Central Delta s CVPIA affirm ative defense is DENIED WITHOUT PREJUDICE. Doc. 85 at 19- 26 (emphasis added, footnotes omitted). In the p resent motio n for summary judgment, 26 Plaintif fs maintain that Central Delta s CVPIA 27 affirmat ive defense should be deemed wholly inapp licable. 28 To preva il, Pl aintiffs must demonstrate either that th e 86 1 affirmat ive defense fails as a matter of law or t here is 2 an absen ce of eviden ce to support its assertion. 3 Soremeku n, 509 F.3d at 984. 4 5 6 7 See As the J uly 16, 2009 Decision articulated, a late renacted, more specif ic statute trumps an earlier one insofar as they conf lict. Central Delta maintain s that 8 the CVPI A s striped bass doubling goal, which equ ates to 9 a goal o f 2,500,000 fish, is just such a la ter-enacted, 10 more spe cific statut e that trumps the earli er, more 11 general ESA. 12 13 14 15 The st atutory picture is more compl icated than Cen tral Delta a cknowledges. The CVPIA prote cts anadromo us species, defined by the statute to inc lude striped bass a nd the List ed Salmonids, by, among other 16 things, setting a go al of doubling the population s of all 17 of these species. 18 indicate s that its p rovisions should be implement ed in 19 complian ce with the ESA. 20 statutor y interpreta tion. 15 I n addition, the CVPIA itself This presents a unique issue of As the July 16, 2009 d ecision 21 22 23 24 25 26 27 28 15 Mo rt on v . Ma nc ar i, 4 17 U. S. 5 35 ( 1 974 ), c it ed b y Ce nt ra l Del ta , is n ot a na lo go us. Ma nc ar i u phe ld a n em pl oy me nt p ref er en ce for q ua li fi ed N at iv e Ame ri ca ns s et for th i n th e In di an Reo rg an iz at io n Ac t of 19 34 ( I nd ia n Ac t ) ag ai ns t a ch al len ge t ha t the p re fe re nc e vi ol at ed ge ne ra l an t i-d is cr im in at io n pr ov isi on s of the l at er -e na ct ed E qu al Op po rt un it y Ac t of 1 97 2 ( EO A ). M orto n doe s st an d fo r th e pr opo si ti on t ha t [ w] he re t he re i s no cl ea r int en ti on o th er wi se , a s pe ci fi c st a tut e wi ll n ot b e co nt rol le d or nul li fi ed b y a ge ne ra l o ne , re ga rd l ess o f th e pr io ri ty o f ena ct me nt . Id . at 5 50. He re , Ce n tra l De lt a ar gu es t ha t t he l at er ena ct ed , mo re s pe ci fi c C VP IA s ho ul d no t be c on tr ol le d or nu ll if ie d by th e ea rl ie r- en ac te d E SA . I n Mo r ton , th e Su pr em e Co ur t c on cl ud ed tha t th e la te r- en ac te d E OA e xp re ss e d n o in te nt io n to n ul lif y th e 87 1 stated: 2 purpose of the CVPIA do not evince an intent to a brogate 3 applicat ion of the E SA. 4 5 6 7 8 9 The expres s lan guage and the legi slative Doc . 85 at 25. R ather, whet her a confli ct in operat ion exists between impl ementa tion of the ESA to the sport-fishing regulati ons an d achieving the CVPI A objectives by application of those regu lations is a que stion of fac t. 16 Id. a t 25-26. Plaintif fs own brief s are equivocal on this factu al 10 issue. 11 suggesti ng that the goal of doubling the striped bass 12 13 14 15 On the one h and, Plaintiffs point to evi dence populati on is incomp atible with the goal of doubl ing the listed s almonid popu lations. See Independe nt Peer Rev iew of the C VPIA, Rubin Decl., Doc. 115, Ex. 47, at 22 ( T he 16 stated g oal to incre ase the production of both na tive 17 salmonid s and exotic predators/competitors (e.g., striped 18 bass and shad) is in ternally inconsistent. ); id. at 4 7 19 ( progra ms that enco urage exotic predatory specie s such 20 21 22 23 24 25 26 27 28 Ind ia n Ac t pr ef er en ce , n ot in g th at , th re e mo nt hs a ft er e nac tm en t of the E OA , Co ng re ss e na cte d tw o ot he r In di an p re fe re nc e la ws. In t hi s lig ht , [ i] t wo ul d be an om al ou s to con cl ud e th at C on gr es s i nt en de d to el im in at e th e lo ng st an di ng s ta t uto ry p re fe re nc es i n [] emp lo ym en t, a s be in g rac ia ll y di sc r imi na to ry , at t he v er y s am e ti me it wa s re af fi rm in g th e r ig ht o f tr i bal a nd r es er va ti on -r ela te d pri va te e mp lo ye rs t o pro vi de I nd ia n pr ef er en ce . 41 7 U. S. at 5 48 . Why C en tr al D el ta w ou ld em ph as iz e t his h ol di ng i s a my st ery , as t he sim ul ta ne ou s in cl us io n o f pr ot ec ti o ns fo r st ri pe d ba ss a nd sa lm on id s in th e CV PI A su gg es ts an e xp re ss i n ten t to r eq ui re p ro te cti on s fo r the L is te d Sa lm on id s not wi th st an di n g t he p ro te ct io ns f or th e st ri pe d bas s. 16 Ce nt ra l De lt a re co gn ize s th at w he n re pu gn an cy b et we en t wo act s ha s be en e st ab li she d, th e ol d la w is r ep ea le d by i mpl ic at io n onl y, p ro t an to , to t he ex te nt o f t he re pu gn an cy . Un it ed St at es v . Bor de n, 3 08 U .S . 18 8, 19 9 (1 93 9) . 88 1 as strip ed bass (e.g ., California Fis h and Game and th e 2 CVPIA it self) clearl y conflict with CVPIA and ESA 3 mandates to protect and rebuild depressed stocks of 4 5 6 7 8 9 native s almonids ... . ). This suggests that enfo rcement of the C VPIA s strip ed bass regulations is incomp atible with the protections affo rded the Listed Sa lmonids under the ESA. The significan ce of this evidence is in dis pute. As 10 Central Delta points out str iped bass and the salmoni ds 11 co-existed in the Delta for more than a century, and it 12 13 14 15 has not been shown t hat [a similar coexista nce] cannot be achieved . Doc. 125 at 1 4 (n oting that FWS adopted th e Restorat ion Plan to restore both striped bass and 16 salmonid s pursuant t o the direction of the CVPIA) . 17 Central Delta also p oints out that, despite the o pinions 18 of the r eview panel, Congress express ed its unconditio nal 19 intent t o restore both st ripe d bass and salmonids . 17 20 the same time, there is ample record evidence to support 21 At the prop osition that the sportfishing regulations are 22 23 24 25 26 27 28 17 Co ng re ss e na ct ed t he CV PI A in 1 99 2 . At t he t im e of e na ctm en t the S ac ra me nt o Ri ve r win te r ru n Ch i noo k sa lm on w as a lr ea dy li st ed a s th re at en ed un de r th e E SA . T he C V PIA s l eg is la ti ve h is tor y st at es : As a re su lt o f th es e com bi ne d fa ct o rs, t he w in te r- ru n Ch ino ok of th e Sa cr am en to R iv er ha s be en r e duc ed f ro m a ru n of o ver 100 ,0 00 t o fe we r th an 20 0 an d, i n 1 989 , wa s de cl ar ed a thr ea te ne d sp ec ie s un der F ed er al l a w a nd a n en da ng er ed s pec ie s und er S ta te l aw . H.R . 57 6, P ar t 1, 1 02 nd Co ng . (J un e 16 , 19 92 ), a t 17 -1 9. 89 1 necessar y to achieve the CVPIA s goal of doubling the 2 striped bass populat ion. 18 3 4 5 6 7 On the o ther hand, i n an attempt to rebut Central Delta s argument tha t Plaintiffs request to use the ESA to inval idate the st riped bass sportfishing regul ations sets up a direct con flict between the CVPIA and t he ESA, 8 Plaintif fs insist th at they are not seeking to in validate 9 the CVPI A or even th e Defendant s ability to enfo rce 10 striped bass regulat ions per se. 11 maintain that they o nly seek State Defendant s co mpliance 12 13 14 15 Rather, Plainti ffs with its ESA obligat ions, which can be achieved by eit her securing incidental take authorization from the appropri ate federal wildlife agencies (NMFS or U. S. Fish 16 and Wild life Service ) pursuant to section 7 or 10 of the 17 ESA (16 U.S.C. §§ 15 36, 1539), or by halting enfo rcement 18 19 20 21 22 23 24 25 26 27 28 18 The g oa l fo r st ri pe d bas s pr om ul ga t ed by F WS h as n ot b ee n ach ie ve d. Do c. 1 26 , McD an ie l De c. I, Ex . C (A na dr om ou s Fis h Res to ra ti on P ro gr am D oub li ng G ra ph s , f or s tr ip ed b as s) . Sin ce 1 99 2 the a ve ra ge a nn ua l ab und an ce o f st r ipe d ba ss h as n ot e ve n b ee n ha lf of th e ta rg et l ev el . Id. A re ce nt FWS r ev ie w st at es : Ill eg al f is hi ng m ay k ill t ho us an ds of ju ve ni le s tr ip ed b ass , pos si bl y eq ui va le nt t o t he d ea th s o f l ea st 1 25 ,0 00 l eg al -si ze d bas s ea ch y ea r (B ro wn 19 87 ). Th is lev el o f il le ga l fi sh ing cou ld e qu al o r ex ce ed th e an nu al l e gal s po rt c at ch o f 10 0,0 00 200 ,0 00 a du lt s tr ip ed ba ss ( DF G 19 9 2a) . A s di sc us se d pre vi ou sl y, h ea lt hy f ish p op ul at io n s c an s us ta in h ig h le vel s of fis hi ng m or ta li ty , bu t t he p re ci pi t ous d ec li ne i n ad ul t str ip ed bas s ab un da nc e ov er t he pa st 2 0 ye a rs in di ca te s th at t he pop ul at io n is u nh ea lt hy (F ig ur e 2- V I-3 1) . Doc . 12 6, E x. D ( ex ce rpt s fr om V ol u me 2 of F WS s W or ki ng Pa pe r on Res to ra ti on N ee ds , Ha bit at R es to ra t ion A ct io ns t o Do ub le Na tu ra l Pro du ct io n of A na dr om ous F is h in t h e C en tr al V al le y Ca li for ni a) , Vol . 2, p . 2- VI II -2 3. 90 1 of the s triped bass sport -fis hing regulations. 19 2 affords FWS and NMFS considerable discretion in d esigning 3 remedial measures th at might be imposed as part o f any 4 5 6 7 The ESA incident al take perm it granted to CDFG under ESA § 9. 20 It is po ssible that the CVPIA s fish doubling reg ulations are comp atible with protections afforded the List ed 8 Salmonid s under the ESA. 9 insuffic ient to reso lve this question of fact as a matter 10 of law. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The current record is Plaintif fs raise two additional, related argument s in an attem pt to prove that Central Delta s CVPIA de fense should f ail as a mat ter of law. First, Plaintiff s point out that the CVPIA o nly authorizes and directs ac tions by 19 Ce nt ra l De lt a ar gu es th at P la in ti f fs a tt em pt t o mo di fy it s req ue st ed r el ie f is d isi ng en uo us , b eca us e t he w ho le p ur pos e an d the or y of t he ir c as e is to u se t he ESA t o el im in at e st ri ped b as s reg ul at io ns t o de ci ma te st ri pe d ba s s p op ul at io ns . P la in tif fs d o no t see k to c on tr ol s tr ip ed ba ss p op ul a tio ns a t 2. 5 mi ll io n fis h, t he y see k to b ri ng a bo ut a su bs ta nt ia l r edu ct io n in s tr ip ed b ass w el l bel ow t he 2 .5 m il li on le ve l. D oc . 12 5 at 1 5- 16 . P la in tif fs int en ti on i s no t cl ea r f ro m th e re c ord . R eg ar dl es s, C en tra l De lt a is no t mo vi ng f or s um mar y ju dg me nt , so i t is n ot n ec es sa ry to d ec id e whe th er t he E SA a nd t he CV PI A ar e i nes ca pa bl y in c on fl ic t. A fin di ng t ha t th e tw o sta tu te s ma y b e i n co nf li ct i s su ff ici en t to den y Pl ai nt if fs mo ti on fo r su mm ar y ju dg me nt . 20 Pl ai nt if fs a re c or re ct th at t he f e der al w il dl if e ag en ci es hav e di sc re ti on i n th e d es ig n of r e med ia l me as ur es t o pr ote ct t he Lis te d Sa lm on id s. Ho wev er , Pl ai nt i ffs ci ta ti on o f Na ti ona l Wil dl if e Fe de ra ti on v . N MF S, 5 24 F . 3d 91 7, 9 29 ( 9t h Ci r. 20 08 ) ( NW F v. NM FS ) , do es n ot s upp or t th is p r opo si ti on u nd er t he c irc um st an ce s of th is c as e, a s NW F v N MF S co nc er n ed ap pl ic at io n of N at ion al Ass oc ia ti on o f Ho me B uil de rs v . De f end er s of W il dl if e, 5 51 U. S. 6 44 (20 07 ), w hi ch h el d th at an E SA s ec t ion 7 c on su lt at io n ap pli es to all a ct io ns i n wh ic h the re i s di sc r eti on ar y in vo lv em en t or co nt ro l. Thi s is n ot a s ec ti on 7 ac ti on a nd the r eg ul at or y pr ov is ion s at iss ue i n Ho me B ui ld er s a re n ot a pp l ica bl e he re . 91 1 the Secr etary of the Interior; it does not purpor t to 2 authoriz e or direct any actions by the California Fish 3 and Game Commi ssion or CDFG. 4 5 6 7 See CVPIA § 3406. But, Congress expressly a cknowledged the role of CDFG in maintain ing and doub ling fish populations. For e xample, the Secr etary of the Interior is required to coor dinate 8 with CDF G to benefit anadromous fish: As n eeded to 9 achieve the goals of this program ... Instream fl ow needs 10 to be de termined bas ed on the recommendations of the U.S. 11 Fish and Wildlife Se rvice after consultation with the 12 13 14 15 Californ ia Departmen t of Fish and Game. 3406(b)( 1)(B). CVPIA § Like wise, 800 ,000 acre feet of wa ter are to be m anaged pursu ant to conditions specified b y the 16 U.S. Fis h and Wildli fe Service after consultation with 17 the Bure au of Reclam ation and the California Depa rtment 18 of Water Resources a nd in cooperation with the Ca lifornia 19 Departme nt of Fish a nd Game. 20 § 3406(c )(1) (requir ing development of a plan to address 21 22 23 24 § 3406(b)(2)(B); see al so fish, wi ldlife, and habitat concerns in the San J oaquin River... in cooperat ion with the California Depar tment of Fish and Game.... ). 25 Second, Plaintiffs n ote that the striped bass spo rt- 26 fishing regulations pre-date the enactment of the CVPI A, 27 suggesti ng that they could not have been adopted pursuant 28 92 1 to the C VPIA s autho rity and therefore, even if t he CVPIA 2 trumps t he ESA, this should not shield the stripe d bas s 3 sportfis hing regulat ions from compliance with the ESA. 4 5 6 7 8 Plaintif fs fail to a cknowledge that the regulatio ns are adopted on a trienni al basis, and were recently r eadopted by the C alifornia Fi sh and Game Commission. In the f inal analysis, the evidence suggests it is 9 possible , but not ce rtain, that enforcement of th e ESA in 10 this cas e can be har monized with implementation o f the 11 CVPIA. 12 13 14 15 The current record is insufficient to res olve this mix ed question of fact and law on summary ju dgmen t. Plaintif fs motion f or summary judgment on the CV PIA affirmat ive defense is DENIED. 16 17 18 19 20 21 IV. CONCLUSION For the reasons set forth above, Plaintiffs moti on for summ ary adjudica tion is GRANTED as to the inj ury-infact pro ng of Articl e III standing, but denied as to a ll 22 other as pects of sta nding. 23 summary judgment is also DENIED as to Section 9 l iability 24 and the CVPIA affirm ative defense. 25 26 27 28 Plaintiffs motion fo r State De fendant shal l submit a form of order consiste nt with this memorandum decision within five ( 5) days fro m electronic service. 93 1 A furthe r scheduling conference is set for Tuesda y, 2 July 27, 2010 at 9:0 0 a.m. in Courtroom 3 (OWW). 3 may appe ar telephoni cally. 4 5 6 7 8 SO ORDER D DATED: J uly 21, 2010 /s/ Oliver W . Wang er Oliver W. Wanger United States Distri ct Ju dge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 94 Counsel

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