Central Delta Water Agency et al v. United States Fish and Wildlife Service et al, No. 1:2009cv00861 - Document 185 (E.D. Cal. 2009)

Court Description: Memorandum Decision and Order Granting Multiple Motions to Dismiss (Docs. 106, 107, 112, 113, 114, 116, 118), Granting in Part and Denying in Part Water Agency Defendants Motion to Strike (Doc. 173), and Denying as Moot State Defendants Motion to Quash Service (Doc. 105). Defendants shall submit a form of judgment terminating this action in accordance with this memorandum decision and order within five days. Signed by Judge Oliver W. Wanger on 09-08-2009. (Coffman, Lisa)

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1 2 UNITED STATES DISTRICT COURT 3 FOR THE EASTERN DISTRICT OF CALIFORNIA 4 5 6 CENTRAL DELTA WATER AGENCY and SOUTH DELTA WATER AGENCY, 1:09-CV-00861 OWW DLB 7 Plaintiffs, 8 v. 9 10 UNITED STATES FISH AND WILDLIFE SERVICE, et al., 11 Defendants. 12 MEMORANDUM DECISION AND ORDER GRANTING MULTIPLE MOTIONS TO DISMISS (DOCS. 106, 107, 112, 113, 114, 116, 118), GRANTING IN PART AND DENYING IN PART WATER AGENCY DEFENDANTS MOTION TO STRIKE (DOC. 173), AND DENYING AS MOOT STATE DEFENDANTS MOTION TO QUASH SERVICE (DOC. 105). 13 14 I. INTRODUCTION 15 This case concerns the ongoing development and preliminary 16 17 environmental review of the Bay Delta Conservation Plan ( BDCP ), 18 a yet-to-be consummated collaborative approach to restoring the 19 Sacramento-San Joaquin Delta ecosystem, while also protecting 20 water supplies. See Defendants Request for Judicial Notice 21 ( DRJN ), Ex. A, BDCP: An Overview and Update (March 2009) 22 23 ( Overview and Update ). Plaintiffs, Central Delta Water Agency 24 and South Delta Water Agency, filed this lawsuit against the 25 members of the BDCP Steering Committee, 1 alleging that: 26 27 28 1 The Steering Committee is made up of federal, state, and local water agencies, as well as nonprofit organizations. Overview and Update at 17. Defendants United States Fish and 1 1 (1) defendants initiated the scoping process under the National 2 Environmental Policy Act ( NEPA ) and the California 3 Environmental Quality Act ( CEQA ) without releasing to the 4 public a sufficiently detailed BDCP project description; (2) in 5 retaining a contractor to study the BDCP s possible environmental 6 7 impacts, defendants violated federal regulations governing 8 contractor conflicts-of-interest; (3) federal and state agencies 9 impermissibly are coordinating their NEPA/CEQA compliance 10 activities; (4) the BDCP lists conservation and water supply as 11 co-equal project goals in violation of the California Natural 12 Communities Conservation Planning Act ( NCCPA ); and (5) the BDCP 13 Steering Committee s meetings did not comply with the 14 15 California s Bagley Keene Open Meeting Act. 16 Complaint. 17 interest and NCCPA claims. 18 See Doc. 1, Plaintiffs have since abandoned their conflict-ofDoc. 157 at 2 n.2. Six groups of defendants move to dismiss all of the claims 19 in the Complaint. 20 ( CFBF )), Doc. 107 (Environmental Non-Profits), Doc. 112 Doc. 106 (California Farm Bureau Federation 21 (Federal Defendants), Doc. 113 (Mirant Delta LLC), Doc. 114 & 118 22 (Water Agency Defendants), Doc. 116 (State Defendants). The 23 24 25 26 27 28 memoranda in support of these motions overlap to a considerable degree. With leave of court, Plaintiffs filed a consolidated, Wildlife Service ( FWS ) and the National Marine Fisheries Service ( NMFS ), are ex officio members of the Steering Committee. See DRJN Ex. B, Planning Agreement regarding the [BDCP] (Oct. 6, 2006) ( Planning Agreement ) at 14. 2 1 seventy-six page opposition. 2 parties replied, again with largely overlapping memoranda. 3 175, 177-181. Doc. 157. All of the moving Docs. 4 Defendants jointly filed a request for judicial notice. 5 Doc. 110. Plaintiffs also filed a separate request for judicial 6 7 notice. Doc. 165. The Water Agency Defendants move to strike 8 certain declarations and exhibits submitted by Plaintiffs in 9 opposition to the motions to dismiss. Doc. 173. 2 10 II. STATUTORY BACKGROUND 11 A. NEPA. 12 With the passage of NEPA in 1970, Congress recognize[ed] 13 14 the profound impact of man s activity on the interrelations of 15 all components of the natural environment and declare[d] that 16 it is the continuing policy of the Federal Government, in 17 cooperation with State and local governments, and other concerned 18 public and private organizations, to use all practicable means 19 and measures ... to create and maintain conditions under which 20 man and nature can exist in productive harmony, and fulfill the 21 2 22 23 24 25 26 27 28 Plaintiffs object to the hearing of this motion to strike, which contains evidentiary objections directly related to the pending motions to dismiss, on less than thirty days notice. Doc. 182 at 2. This objection is without merit. Local Rule 78230(e) allows any party to file a counter-motion or other motion that is related to the general subject matter of the original motion. The district court may then continue the hearing so as to give all parties reasonable opportunity to serve and file oppositions and replies to all pending motions. Id. Here, the motion to strike was filed August 17, 2008, leaving Plaintiffs adequate time to file an opposition, which they did, on August 18, 2009. There was no need to continue the hearing schedule. 3 1 social, economic, and other requirements of present and future 2 generations of Americans. 3 facilitate informed decision-making and public disclosure, 42 U.S.C. § 4331. In order to 4 federal agencies prepare an environmental impact statement 5 ( EIS ) for major Federal actions significantly affecting the 6 7 quality of the human environment. Id. § 4332(C). NEPA, along with implementing regulations promulgated by the 8 9 Council on Environmental Quality ( CEQ ), establishes procedures 10 agencies must follow in determining whether an EIS is required 11 and in developing the EIS itself. 12 One of the first steps in the process of developing an EIS is scoping, an early and open 13 process for determining the scope of issues to be addressed and 14 15 for identifying the significant issues related to a proposed Id. § 1501.7. 16 action. As soon as practicable after the 17 decision is made to prepare an EIS and before scoping takes 18 place, the lead agency 3 must publish in the Federal Register a 19 Notice of Intent ( NOI ), which must briefly describe the 20 proposed action and proposed alternatives, provide contact 21 information for an agency representative to answer questions 22 about the project, and describe the agency s proposed scoping 23 24 process. 40 C.F.R. § 1508.22. 25 3 26 27 28 Where multiple agencies are involved in a project, the regulations mandate that there be a lead agency in preparing the EIS, but allow agencies to serve as joint lead agencies in order to facilitate inter-agency cooperation. 40 C.F.R. § 1501.5. 4 1 2 B. Administrative Procedure Act ( APA ). The APA provides that [a] person suffering legal wrong 3 because of agency action, or adversely affected or aggrieved by 4 agency action within the meaning of a relevant statute, is 5 entitled to judicial review thereof. 5 U.S.C. § 702. Where no 6 other statute provides a right of action, the agency action at 7 8 issue must also be final agency action. § 704. A 9 preliminary, procedural, or intermediate agency action or ruling 10 not directly reviewable is subject to review on the review of the 11 final agency action. 12 whole or a part of an agency rule, order, license, sanction, 13 Id. Agency action is defined as the relief, or the equivalent or denial thereof, or failure to act. 14 § 551(13). Agency action is considered final if it mark[s] the 15 16 consummation of the agency s decision making process and defines 17 parties rights and obligations or carries other legal 18 consequences. Bennett v. Spear, 520 U.S. 154, 177-78 (1997). 19 III. FACTUAL BACKGROUND 20 This is yet another lawsuit arising out of the increasingly 21 22 significant and intensifying conflict between the ecological 23 needs and sustainability of the Sacramento San-Joaquin Delta 24 ( Delta ) and the human users of the Delta s resources. 25 DRJN, Exhibit E, Overview of the Draft Conservation Strategy for 26 the BDCP at 3 (Jan. 12, 2009) ( Draft Overview ). 27 See The Delta is the largest estuary on the west coast of the Americas, and 28 5 1 includes parts of five California counties (Contra Costa, San 2 Joaquin, Sacramento, Solano, and Yolo). 3 supports more than 750 species of plants and wildlife, including Compl. ¶84. The estuary 4 several species protected by the federal Endangered Species Act 5 ( ESA ). Compl. ¶85. Twenty-three million people, two-thirds of 6 7 California s population, obtain some of their drinking water from 8 Delta supplies. 9 acres of farmland are irrigated with water from the Delta. 10 11 12 Compl. ¶86. In addition, more than 4 million Id. The Delta is the hub of both the federal Central Valley Project ( CVP ) and the State Water Project ( SWP ) (collectively, the Projects ), which pump water from the Delta 13 near the city of Tracy to supply municipal, industrial, and 14 15 See Compl. ¶86. agricultural users to the south. The Projects 16 currently use the Delta s natural and man-made channels to convey 17 water from incoming watersheds to those pumps. 18 has deleterious effects on the ecosystem, while related efforts 19 to protect the environment cause uncertainty for those who 20 receive water from the Delta. This arrangement See Draft Overview at 3. [T]he 21 continuing subsidence of lands within the Delta, increasing 22 seismic risks and levee failures, and sea level rise associated 23 24 with climate change, serve to exacerbate these conflicts. Id. 25 There is little dispute that the current system is in need of 26 fundamental restructuring. 27 In 2006, various federal and state regulatory agencies, 28 6 1 water districts, and other interested parties, began to develop 2 the BDCP, with the stated goal of provid[ing] for the 3 conservation of threatened and endangered fish species in the 4 Delta and improv[ing] the reliability of the water supply system 5 within a stable regulatory framework. Compl. ¶95; Overview and 6 7 Update at 1. The participants in the BDCP process have all 8 recognized that solving the Delta s problems will require, among 9 other things, capital improvements to the Delta s water 10 conveyance system. 11 Scoping Meetings, 74 Fed. Reg. 7,257, 7,259 (Feb. 13, 12 BDCP Notice of Intent and Notice of Public 2009)( February 2008 NOI ). Through the BDCP, Defendants intend 13 to obtain long term incidental take permits for any planned 14 15 16 changes to the Projects under the NCCPA and ESA. Compl. ¶104. The principal forum within which key policy and strategy 17 issues pertaining to the BDCP will be discussed and considered 18 is the Steering Committee, a group made up of the relevant 19 federal and state regulatory agencies, numerous water 20 contractors, and nonprofit organizations, who all signed a 21 Planning Agreement, setting forth the goals of the BDCP 22 planning process. See Planning Agreement at 22-25. 23 24 On January 24, 2008, NMFS and FWS published a Notice of 25 Intent to Conduct Public Scoping and Prepare an Environmental 26 Impact Report/Environmental Impact Statement, broadly outlining 27 the BDCP. 73 Fed. Reg. 4,178 (Jan. 24 2008) ( January 2008 28 7 1 NOI ). The January 2008 NOI explained: 2 The applicants have identified four potential water conveyance options that are being considered for the habitat conservation planning process: (1) the existing conveyance and system without physical change to conveyance facilities, (2) changes to conveyance in San Joaquin Old and Middle River channels plus separation of San Joaquin corridor from through-delta conveyance, (3) a dual conveyance in which existing conveyance would still be operational plus an isolated facility (not yet constructed) from the Sacramento River to the south Delta, and (4) an isolated conveyance facility (not yet constructed) from the Sacramento River to the south Delta. These four options are undergoing evaluations through the BDCP Steering Committee to assess the relative ability of each to contribute to the goals and objectives of the planning effort. Although the applicant has not yet decided which option(s) will be submitted for consideration under section 10 of the Endangered Species Act, the intent is to narrow the project focus to one or two of the four options or a mixture thereof by fall 2007. 3 4 5 6 7 8 9 10 11 12 13 14 15 Id. The NOI was updated on April 15, 2008: (1) adding BOR as a third co-lead federal agency; (2) providing further details on 16 the project; and (3) announcing the dates, times, and locations 17 of ten scoping meetings throughout California, held in April and 18 19 20 21 22 23 24 25 26 27 28 May 2008. NOI ). 73 Fed. Reg. 20,326 (Apr. 15, 2008) ( April 2008 The April 2008 NOI described the BDCP as follows: The BDCP will have several core purposes: Habitat restoration and enhancement to increase the quality and quantity of habitat in the Delta; other conservation actions to help address a number of stressors on covered species; conveyance facilities to enhance operational flexibility and water supply reliability while providing greater opportunities for habitat improvements and fishery conservation; water operations and management actions to achieve conservation and water supply goals; and a comprehensive monitoring, assessment, and adaptive management program guided by independent scientific input. Additional core purposes of the BDCP are to provide for the conservation of covered species within the planning area; to protect and restore certain aquatic, riparian, and associated 8 1 2 3 4 5 6 7 8 9 10 terrestrial natural communities that support these covered species; and to provide for and restore water quality, water supplies, and ecosystem health within a stable regulatory framework. The EIS/EIR will evaluate the effects of implementing the BDCP, conveyance alternatives, and power line alignments, other nonstructural alternatives, and describe the permits necessary for BDCP implementation. The BDCP will likely consist of several major elements, including new capital improvements to the water supply conveyance system, a restoration program for important habitats within and adjacent to the Delta in order to improve the ecological productivity and sustainability of the Delta, and monitoring and adaptive management for the restoration program. The plan will also likely include operational improvements for the water supply system in the near-term and for the long-term once any capital improvements have been completed and are operational. 11 73 Fed. Reg. 20,327. 12 BDCP may include, but is not limited to, the following 13 activities: The April 2008 NOI then explained that the 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ¢ Existing Delta conveyance elements and operations of the CVP and SWP; ¢ New Delta conveyance facilities (including power line alignments) and operations of the CVP and SWP generally described in the BDCP November 2007 Points of Agreement; ¢ Operational activities, including emergency preparedness of the CVP and SWP in the Delta; ¢ Operational activities in the Delta related to water transfers involving water contractors or to serve environmental programs; ¢ Maintenance of the CVP, SWP, and other PREs' facilities in the Delta; ¢ Facility improvements of the CVP and SWP within the Statutory Delta...; ¢ Ongoing operation of and recurrent and future projects related to other Delta water users, as defined by the Planning Agreement; ¢ Projects designed to improve Delta salinity conditions; and ¢ Conservation measures included in the BDCP, including, but not limited to, fishery related habitat restoration projects, adaptive management, and monitoring activities in the Delta. 28 9 1 Id. at 20,327-28. 2 Steering Committee s Points of Agreement as the basis for 3 alternative development : The April 2008 NOI also pointed toward the 4 As part of the BDCP process, the Steering Committee evaluated potential options to address water supply reliability, water quality, and ecosystem health in the Delta. Initial options included various combinations of water conveyance facilities and habitat restoration actions. As a result of this evaluation, the Steering Committee developed the Points of Agreement document that provides an overall framework for moving forward with development of the BDCP. Previous evaluations and potential improvements to the water conveyance system and strategies for in-Delta habitat restoration and enhancement outlined in the Points of Agreement document will be used for the basis of alternative development, but will not preclude or limit the range of alternatives to be analyzed under NEPA. 5 6 7 8 9 10 11 12 Id. at 20,378. 13 Some comments received during the 2008 scoping meetings 14 indicated that more detailed descriptions of the proposed 15 16 activities and alternatives were needed to permit informed public See 74 Fed. Reg. at 7,257. 17 comment. 18 13, 2009, the agencies published another NOI. 19 60. 20 BDCP s central elements and the alternative conveyance systems 21 In response, on February See id. at 7,257- The February 2009 NOI contained additional detail about the under consideration: 22 23 24 25 26 27 28 The BDCP will likely consist of three major elements: (1) Actions to improve ecological productivity and sustainability in the Delta; (2) potential capital improvements to the water conveyance system, and; (3) potential changes in Delta-wide operational parameters of the CVP and SWP associated with improved water conveyance facilities. Potential habitat restoration measures that could improve ecological productivity and sustainability in the Delta may involve the restoration of floodplain; 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 freshwater intertidal marsh; brackish intertidal marsh; channel margin, and riparian habitats. Floodplain restoration opportunities exist in the North Delta/Yolo Bypass and upper San Joaquin River areas; intertidal marsh restoration opportunities exist throughout the Delta and in Suisun Marsh. Channel margin habitat restoration opportunities exist for improving habitat corridors and as a component of floodplain restoration. Riparian habitat restoration opportunities exist as a component of floodplain, freshwater intertidal marsh, and channel margin habitat restoration. Three general alternatives are being considered as they relate to the potential changes in the water conveyance system and CVP/SWP operations. These include: (1) A through-Delta alternative; (2) a dual conveyance alternative; and (3) an isolated facility alternative. In addition, the implications of taking no action, the No Action alternative, will be considered in the analysis. The dual conveyance alternative may include potential new points of diversion at various locations in the North Delta, facilities to move water from new points of diversion to the existing SWP and CVP pumping facilities in the South Delta, and continued use of the existing diversions in the South Delta. The fully isolated facility alternative would include potential new points of diversion at various locations in the North Delta and facilities to move water from new points of diversion to the existing SWP and CVP pumping facilities in the South Delta. The improved throughDelta alternative could include new temporary or permanent barriers to modify existing hydraulics or fish movement within the Delta, armoring of levees along Delta waterways to ensure continued conveyance capacity, and/or actions to improve conveyance capacity in existing Delta waterways. 19 20 21 22 23 24 New points of diversion could be located along the Sacramento River between South Sacramento and Walnut Grove. The new conveyance facility could extend from the new points of diversion to the existing SWP and CVP pumping facilities in the South Delta and be located either to the west or east of the Sacramento River. Potential CVP/SWP operations changes include the seasonal, daily, and real time amounts, rates, and timing of water diverted through and/or around the Delta. Potential corresponding changes to water exports could also be developed. 25 26 27 28 Other actions to reduce threats to listed fish that may be evaluated for implementation by the BDCP include measures to minimize other stressors. These other stressors may include: (1) Non-native invasive species; (2) toxic contaminants; (3) other water quality issues; (4) hatcheries; (5) harvest; (6) non-project 11 1 diversions; and (7) commercial/recreational activities. Implementation of potential habitat restoration activities and measures to minimize other stressors will be evaluated throughout the Delta, and possibly upstream and downstream of the Delta, as appropriate to meet the objectives of the plan. 2 3 4 Preliminary locations, alignments, and capacities of new conveyance facilities, as well as habitat restoration activities and actions to address other stresses, to be evaluated in the EIS/EIR will be informed by the scoping process. In addition to the alternatives described above, other reasonable alternatives identified through the scoping process will be considered for potential inclusion in the alternatives analysis. 5 6 7 8 9 Id. at 7,259-60. 10 11 The co-lead agencies held a second round of twelve scoping See id. at 7,257. 12 meetings around the State in March 2009. 13 Comments submitted during both the 2008 and 2009 rounds of 14 scoping meetings will be considered during the preparation of the 15 EIS/EIR. 16 Id. Plaintiffs complain that the NOIs were ambiguous, Compl. 17 ¶100, and that neither the NOIs nor related documents, including 18 the January 2009 Overview of the Draft Conservation Strategy for 19 20 the [BDCP], provide sufficiently detailed information about the 21 BDCP, Compl. ¶101: 22 23 24 25 26 27 28 108. The language in the NOI is muddled and ambiguous. The BDCP covered activities may, but are not limited to existing or new activities related to new Delta conveyance facilities, Facility improvements of the CVP and SWP within the Statutory Delta, future projects related to other Delta water users, Projects designed to improve Delta salinity conditions, and Conservation measures included in the BDCP, including, but not limited to, fishery related habitat management, and monitoring activities in the Delta. (NOI, 7259 (Exhibit 1) (bold added).) However, the facilities to 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 be completed such as the new Delta conveyance facilities, their nature and their location have yet to be defined. While a number of alternatives for the new conveyance facilities have been mentioned in other BDCP process documents, the new conveyance facilities remain undefined in the NOI. Also to be determined are the goals and objectives of the BDCP, the species to be covered, and the methods and locations of conservation. Since the project is yet to be defined, it is impossible to accurately describe. 109. Also, to the extent that any decisions about the BDCP have been made, they are not accurately reflected in the NOI. The NOI lists a combination plate of the following proposed actions as constituting the project: The BDCP is a conservation plan.... [I]ncidental take permits (ITP) for water operations and management activities .... These incidental take authorizations would allow the incidental take of threatened and endangered species resulting from covered activities and conservation measures that will be identified through the planning process, including those associated with water operations of the Federal Central Valley Project (CVP), as operated by Reclamation, the California State Water Project (SWP), as operated by DWR, as well as operations of certain Mirant Delta LLC (Mirant Delta) power plants.... 18 19 20 21 22 23 24 25 26 27 Authorizations that would allow projects that restore and protect water supplies, water quality, and ecosystem health to proceed within a stable regulatory framework. [NOI, p. 7257 (Exhibit 1).] This description implies that the BDCP is a conservation plan and a take permit for any activities identified in the planning process and an array of other non-specified authorizations that would allow projects. This description is vague, and omits certain activities that will be included, such as the construction of a conveyance facility, identified in the NOP and is unequivocally, contrary to law. (NOP, p. 7257 (Exhibit 1).) While the location of the conveyance facility is not precisely known, the NOI for the BDCP fails to even include a list of cities and 28 13 1 counties where the facilities may be located and which entities water supply and watersheds may be affected. 2 3 Compl. ¶¶ 108-109. 4 Defendants move to dismiss the NEPA claim for lack of 5 subject matter jurisdiction on standing, ripeness, and sovereign 6 immunity grounds. 7 complaint fails to state a claim under NEPA. 8 Alternatively, Defendants argue that the Finally, Defendants argue that the state law claims should be dismissed because 9 supplemental jurisdiction cannot be exercised unless the district 10 11 court possesses subject matter jurisdiction over at least one 12 federal claim. Alternatively, Defendants argue that the state 13 law claims should be dismissed on jurisdictional and/or 14 substantive grounds. 15 16 17 IV. STANDARD OF DECISION. Rule 12(b)(1) of the Federal Rules of Civil Procedure allows 18 a motion to dismiss for lack of subject matter jurisdiction. 19 is a fundamental precept that federal courts are courts of 20 limited jurisdiction. 21 be disregarded or evaded. 22 It Limits upon federal jurisdiction must not Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). The plaintiff has the burden 23 to establish that subject matter jurisdiction is proper. 24 25 Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). 26 This burden, at the pleading stage, must be met by pleading 27 sufficient allegations to show a proper basis for the court to 28 assert subject matter jurisdiction over the action. 14 McNutt v. 1 General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Fed. 2 R. Civ. P. 8(a)(1). 3 facially, all material allegations in the complaint are assumed When a defendant challenges jurisdiction 4 true, and the question for the court is whether the lack of 5 federal jurisdiction appears from the face of the pleading 6 7 8 itself. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). 9 V. ANALYSIS 10 A. Evidentiary Matters. 11 1. Requests for Judicial Notice. 12 a. Defendants Request for Judicial Notice. 13 Defendants jointly request judicial notice of six documents 14 pertaining to the BDCP, Doc. 110, all of which are officially 15 16 published online at the BDCP s website, 4 rendering them capable 17 of accurate and ready determination by resort to sources whose 18 accuracy cannot reasonably be questioned. 19 All six documents are judicially noticeable for their existence 20 and content, although not for the truth of the matters asserted 21 therein. Fed. R. Evid. 201. In addition, three of the documents, the BDCP Overview 22 and Update (Mar. 2009), Planning Agreement (Oct. 2006), and 23 24 Points of Agreement (Nov. 2007), are properly considered 25 because they are relied upon extensively in the Complaint. 26 Inlandboatmens Union of Pac. v. Dutra Grp., 279 F.3d 1075, 1083 27 (9th Cir. 2002) (although generally a district court may not 28 4 http://resources.ca.gov/bdcp 15 1 consider material beyond the pleadings on a Rule 12(b)(6) motion, 2 a document to which the complaint specifically refers may be 3 considered if its authenticity is not questioned). 4 Defendants request for judicial notice is GRANTED in its 5 entirety. 6 7 8 9 b. Plaintiffs Request for Judicial Notice. Plaintiffs request that judicial notice be taken of thirty six (36) documents. Doc. 165. Many of these, namely Documents 10 1, 3-7, 9-15, 22-23, 25, 27-28, and 30-34, are statutes and/or 11 regulations, which may be considered as a matter of course, 12 13 without the necessity of judicial notice. 14 Documents 17, 26, and 29, are treatises on NEPA and/or CEQA, 15 which, as generally recognized scholarly source material, may 16 also be considered, but only as persuasive authority. 17 18 Three others, Plaintiffs Document 24 is a publication in the Federal Register, which is judicially noticeable pursuant to 44 U.S.C. § 19 1507 ( contents of the Federal Register shall be judicially 20 21 noticed ). Documents 2 (BDCP Governance Working Group, 22 Preliminary Recommendations for Governance Structure), 8 (BDCP 23 EIR/EIS Process Presentation), and 16 (Memorandum Agreement for 24 Supplemental Funding), are judicially noticeable public documents 25 available on the BDCP website, although they are not admissible 26 for the truth of the matters asserted therein. Documents 18 27 through 21 are Memoranda and Handbooks concerning the 28 16 1 implementation of NEPA, all of which are public records 2 judicially noticeable for their content and existence. 3 applies to the opinions of the California Attorney General, The same 4 Documents 35 and 36, which are judicially noticeable persuasive, 5 but non-binding authority. See Louis v. McCormick & Schmick 6 7 8 Restaurant Corp., 460 F. Supp. 2d 1153, 1156 n.4 (C.D. Cal. 2006). 9 Plaintiffs request for judicial notice is GRANTED as to 10 Documents 2, 8, 16, 18-21, and 24, and DENIED, as unnecessary, as 11 to all other documents, which, as statutory legal authorities, 12 may be considered without taking judicial notice. 13 14 2. Motion to Strike. 15 In support of their opposition to Defendants motions, 16 Plaintiffs filed the Declarations of John Herrick, Manager and 17 General Counsel for South Delta Water Agency, Doc. 159, and Dante 18 John Nomellini, Sr., Manager and Co-Counsel for Central Delta 19 Water Agency, Doc. 158. The Water Agency Defendants move to 20 21 22 strike both declarations in their entirety. Water Agency Defendants argue that where motions to dismiss 23 present either a facial attack under Federal Rule of Civil 24 Procedure 12(b)(1) and/or arguments under Rule 12(b)(6), a court 25 is limited to consideration of the allegations contained in the 26 complaint, with two exceptions: 27 28 First, a court may consider material which is properly submitted as part of the complaint.... Second, under 17 1 Fed. R. Evid. 201, a court may take judicial notice of matters of public record. 2 3 Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001) 4 (internal citations omitted). 5 Plaintiffs respond that extrinsic evidence is admissible 6 here because the Water Agency Defendants motion to dismiss 7 actually is a factual attack on the complaint. 8 Specifically, Plaintiffs point to Page 4, lines 27-28 of the Wager Agency 9 Defendants Motion, which states: Defendant Water agencies 10 11 bring a facial attack on subject matter jurisdiction, and join in 12 the subject matter jurisdiction attacks brought by the other 13 defendants. 14 Plaintiffs suggest, without identifying any specific arguments in 15 the other parties papers, that other Defendants motions to 16 Doc. 118-2 at 4 (emphasis provided by Plaintiffs). dismiss raise factual attacks. They do not. For example, 17 although several other parties challenge Plaintiffs standing to 18 sue, they do so based on the face of the complaint. See Doc. 112 19 20 (Federal Defendants assert that despite allegations of procedural 21 injury in the form of the publication of the NOIs and the 22 decision to conduct scoping prior to issuance of a draft BDCP, 23 Plaintiffs cannot possibly identify any harm to their concrete 24 interests that are reasonably probable to result from these 25 actions, because publication of an NOI and conducting scoping 26 will not result in the undertaking of a project). The Herrick 27 28 and Nomellini declarations simply reiterate, albeit in greater 18 1 detail, assertions in the complaint (e.g., that the issuance of 2 the NOIs and the early scoping process make it impossible for 3 Plaintiffs to meaningfully participate in the NEPA process). The 4 assertions in the complaint must be accepted as true. The 5 Herrick and Nomellini declarations, even if admissible, cannot 6 7 8 supplement the complaint. Similarly, several Defendants argue that Plaintiffs NEPA 9 claim is not ripe for review, see, e.g., Doc. 112-2 at 17-18, 10 and/or that Plaintiffs APA claim must be dismissed because no 11 final agency action has been alleged, see, e.g., id. at 12-17. 12 In response, Plaintiffs argue, relevant to one of the ripeness 13 factors, that delayed review would cause them hardship, Doc. 157 14 15 at 22-23, and, relying on a possible exception to the general 16 rule that review is only permissible under NEPA upon issuance of 17 an EIS or related finding, that Plaintiffs will be irreparably 18 harmed if the NEPA violations are not remedied at an early stage. 19 The Herrick and Nomellini declarations do not add anything 20 material to the facts of the complaint. These declarations 21 merely re-assert that the procedural injury will cause Plaintiffs 22 hardship because they will be precluded from meaningfully 23 24 participating in the NEPA process, and will irreparably harm 25 Plaintiffs because the process being followed by the agencies may 26 preclude Plaintiffs from properly informing Defendants of their 27 concerns. These theories of harm and irreparable injury are more 28 19 1 appropriately presented as legal argument. 2 unnecessary. 3 Herrick and Nomellini declarations is GRANTED. Extrinsic evidence is Water Agency Defendants motion to strike the 4 The Water Agency Defendants also object to consideration of 5 Exhibits 3, 9, 10, 11, 12, 13, and 21, attached to the 6 7 Declaration of Glenn C. Hansen in Support of Plaintiffs opposition. 9 that these documents are not appropriately considered in the 10 context of a facial attack under Rule 12(b)(1), nor are they 11 subject to judicial notice. 12 Docs. 160-64 & 173. Water Agency Defendants object 8 As to Exhibits 3, 10, and 21, these correspond to Documents 2, 8, and 16, for which Plaintiffs 13 request for judicial notice was GRANTED, which moots these 14 15 objections. 16 As to Exhibits 9 (a June 24, 2008 letter from Environmental 17 Defense Fund, Natural Heritage Institute, The Bay Institute, and 18 the Nature Conservancy to California Assemblywoman Lois Wolk), 11 19 (a web page entitled The Delta: 20 Californians from The Nature Conservancy s Web Site), 12 (a web A Water Source for Most 21 page entitled Our Approach to Restoring Land, Water & Wildlife 22 from the Environmental Defense Fund website), and 13 (a web page 23 24 entitled Transforming How California Uses Water: Protecting the 25 Sacramento-San Joaquin Bay-Delta, an ecosystem in Crisis from 26 the Environmental Defense Fund website), Plaintiffs contend that 27 these documents are admissible as non-hearsay party admissions, 28 20 1 citing Federal Rule of Civil Procedure 801(d)(2)(A) and 901, as 2 well as United States v. Traylor, 656 F.2d 1326, 1332 (9th Cir. 3 1981). All of these admissions appear to relate to Plaintiffs 4 theory that the Steering Committee is really a joint venture 5 between all of its members. See Doc. 157 at 7-8. As the motions 6 7 to dismiss are resolved on other, justiciability grounds, it is 8 not necessary to address Plaintiffs joint venture theory or the 9 related admissions. 10 Documents 9 and 11-13 are DENIED AS MOOT. The Water Agency s motion to strike 11 12 13 14 B. Threshold Jurisdictional Issues 1. Standing. To maintain an action in federal court, Plaintiffs must have See Lujan v. Nat'l Wildlife Fed'n, 497 15 Article III standing. 16 U.S. 871, 872 (1990) ( Lujan v. NWF ). 17 III s standing requirements, a plaintiff must show (1) [it] has 18 suffered an injury in fact that is (a) concrete and 19 [T]o satisfy Article particularized and (b) actual or imminent, not conjectural or 20 hypothetical; (2) the injury is fairly traceable to the 21 22 challenged action of the defendant; and (3) it is likely, as 23 opposed to merely speculative, that the injury will be redressed 24 by a favorable decision. 25 Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). 26 the Article III requirements, which are jurisdictional, see 27 Friends of the Earth v. Laidlaw Envtl. In addition to DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341-42 (2006), a 28 21 1 plaintiff who brings suit under the APA, 5 U.S.C. § 706, must 2 also establish that it falls within the zone of interest of the 3 statute under which the lawsuit is brought, see City of Sausalito 4 v. O'Neill, 386 F.3d 1186, 1199 (9th Cir. 2004). 5 The burden of establishing the elements of standing falls 6 7 upon the party asserting federal jurisdiction. Lujan v. 8 Defenders of Wildlife, 504 U.S. 555, 561 (1992) ( Lujan v. DOW ). 9 [E]ach element of Article III standing must be supported in the 10 same way as any other matter on which the plaintiff bears the 11 burden of proof, i.e., with the manner and degree of evidence 12 required at the successive stages of the litigation. Bennett, 13 520 U.S. at 167 (quoting Lujan v. DOW, 504 U.S. at 561). 14 15 These requirements are relaxed somewhat where the injury 16 alleged is procedural. In a procedural injury case, the 17 plaintiff must show that: (1) the [agency] violated certain 18 procedural rules; (2) these rules protect a plaintiff s concrete 19 interests; and (3) it is reasonably probable that the challenged 20 action will threaten their concrete interests. Nuclear Info. 21 and Resource Serv. v. Nuclear Regulatory Comm n, 457 F.3d 941, 22 949 (9th Cir. 2006). 23 24 25 26 27 A cognizable procedural injury exists when a plaintiff alleges that a proper EIS has not been prepared under NEPA when the plaintiff also alleges a concrete interest-such as an aesthetic or recreational interestthat is threatened by the proposed action. City of Sausalito, 386 F.3d at 1197. 28 22 The concrete interest 1 test has been described as requiring a geographic nexus 2 between the individual asserting the claim and the location 3 suffering an environmental impact. Ashley Creek Phosphate Co. 4 v. Norton, 420 F.3d 934, 938 (9th Cir. 2005) (quoting Cantrell v. 5 City of Long Beach, 241 F.3d 674, 679 (9th Cir. 2001)). 6 7 It is not disputed that Plaintiffs Central and Southern 8 Delta Water Agencies ( Delta Water Agencies ) satisfy the 9 geographic nexus and organizational standing requirements. 10 Hunt v. Washington State Apple Advertising Commission, 432 U.S. 11 333 (1977), sets forth the requirements for organizational 12 standing: 13 14 15 16 17 18 19 20 An association has standing to bring a suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Id. at 343. The owners of lands that lie within the Delta Water Agencies geographic scope rely on diversions from the Delta for 21 their water supply, and the potential BDCP action of reducing 22 South Delta exports may negatively impact Delta Water Agencies: 23 24 25 26 27 28 Reduction in south Delta exports, marginally increases salinity in the south and central Delta due to less dilution of saltier San Joaquin River Inflows and Delta island discharges, particularly in late summer and early fall. These increases in salinity would have minimal negative effects for covered species, but could have negative impacts for agricultural or municipal water users who divert from the south Delta if these 23 1 salinity levels exceed those needed by these uses. 2 Draft Overview at 32, 34. 3 protect in this litigation are germane to the organizations The interests Plaintiffs seek to 4 purposes. The Delta Water Agencies are political subdivisions of 5 the State of California, created by the legislature to ensure a 6 7 dependable supply of water of suitable quality and acceptable 8 salinity for the Delta to meet the needs of their constituent 9 water users. 10 306 F.3d 938, 945, 951 (9th Cir. 2002). 11 Delta Water Agencies allow them to commence litigation to further 12 their goals. See Central Delta Water Agency v. United States, Id. The charters of the two Finally, no argument has been made that any of 13 the claims alleged and/or relief sought by the Complaint requires 14 15 16 17 the participation of individual landowners within Plaintiffs areas of operation. However, although necessary, organizational standing is not 18 sufficient to establish standing in a procedural injury case. 19 Plaintiffs must still establish that it is reasonably probable 20 that the challenged action will threaten their concrete 21 interests. Nuclear Info. and Resource Serv, 457 F.3d at 949. 22 [A] free-floating assertion of procedural violation, without a 23 24 concrete link to the interest protected by the procedural rules, Ashley Creek, 420 F.3d 25 does not constitute an injury in fact. 26 at 938. 27 show that it is reasonably probable that the challenged action Here, Federal Defendants argue that plaintiffs cannot 28 24 1 will threaten their concrete interests. 2 most NEPA suits, the action challenged here is not the 3 preparation (or lack thereof) of an EIS, but only the lead This is because, unlike 4 agencies decision to publish an NOI and conduct scoping without 5 first publishing a detailed draft of the BDCP. Doc. 112-2 at 6 7 8 9 10. There are no prescribed rules or procedures that govern preparation of the BDCP. The Complaint alleges that because the NOI is insufficiently 10 detailed, Plaintiffs cannot determine what impacts the BDCP will 11 have nor whether it complies with the law. 12 Compl. ¶117(c). Plaintiffs also allege that the designation of multiple lead 13 agencies means that applicants, public officials and the general 14 15 public do not know which NEPA procedures apply to the proposed 16 project and therefore cannot know if the procedures are properly 17 followed. 18 plausible basis for finding that these challenged actions (i.e., 19 the failure to issue a sufficiently detailed NOI, and the 20 designation of multiple lead agencies) are reasonably likely to Id. at ¶117(b). But, Plaintiffs do not set forth a 21 harm their concrete interests in the Delta. It is possible that 22 the BDCP will be developed in such a manner that any perceived 23 24 harm to their concrete interests will be eliminated. 25 possible that no BDCP will be finalized at all. 26 legal requirement that a BDCP be completed. 27 challenge is premature. 28 25 It is also There is no In this sense, the 1 This case is distinguishable from other situations in which 2 it was reasonably probable that a procedural injury under NEPA 3 would threaten a plaintiff s concrete interests. For example, in 4 City of Sausalito, the plaintiff challenged a completed EIS. The 5 Ninth Circuit did not require the plaintiff to demonstrate that 6 7 a procedurally proper EIS will necessarily protect [a] concrete Id. at 1197. 8 interest.... 9 the plan approved by the EIS will result in harm to plaintiff s 10 concrete interests. 11 is not implemented the reasonably probable threat to 12 Rather, it was enough to allege that Id. at 1199. Put another way if the plan [plaintiff s] concrete [] interests will have been removed. 13 Id.; see also Citizens for Better Forestry v. U.S. Dept of 14 15 Agriculture, 341 F.3d 961, 975 (9th Cir. 2003). Here, in 16 contrast, Plaintiffs have not and cannot allege that the BDCP 17 will result in any harm, as no BDCP exists. 18 Green Party v. Clinton, 124 F. Supp. 2d 1173 (D. Haw. 19 2000)( Plaintiff cannot have suffered an injury in fact when 20 Defendants have not yet taken final action. ). See Hawaii County 21 Plaintiffs cannot demonstrate standing to bring a procedural 22 injury claim under NEPA because it is not reasonably probable, at 23 24 this early juncture in the process, that their concrete interests What Plaintiffs in substance seek is to 25 will be harmed. 26 structure the BDCP process to their liking as to make their input 27 more effective. They have not and cannot allege they have been 28 26 1 completely excluded from providing their input in any public 2 scoping process. 3 lack of subject matter jurisdiction WITH PREJUDICE AND WITHOUT Plaintiffs NEPA claim must be dismissed for 4 LEAVE TO AMEND. 5 6 2. 7 Alternatively, Defendants argue that Plaintiffs claims are 8 9 Ripeness. not ripe for review. Ripeness has both a constitutional and prudential requirement designed to prevent the courts, through 10 avoidance of premature adjudication, from entangling themselves 11 in abstract disagreements over administrative policies, and also 12 13 to protect the agencies from judicial interference until an 14 administrative decision has been formalized and its effects felt 15 in a concrete way by the challenging parties. 16 Gardner, 387 U.S. 136, 148-49 (1967), overruled on other grounds, 17 Califano v. Sanders, 430 U.S. 99 (1977). 18 Abbott Labs. v. In determining whether a case is ripe, a court considers: (1) whether delayed review 19 would cause hardship to the plaintiffs; (2) whether judicial 20 21 intervention would inappropriately interfere with further 22 administrative action; and (3) whether the courts would benefit 23 from further factual development of the issues presented. 24 Forestry Ass n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998). 25 26 27 28 a. Hardship. Plaintiffs assert that delayed review would cause them hardship because they would be unable to exercise their 27 Ohio 1 procedural rights under NEPA. 2 this assertion, Plaintiffs rely on a quote from Ohio Forestry, 3 523 U.S. at 737, in which the Supreme Court stated that a person Doc. 157 at 22. In support of 4 with standing who is injured by a failure to comply with the NEPA 5 procedure may complain of that failure at the time the failure 6 7 takes place, for the claim can never get riper. This language Ohio Forestry concerned an 8 must be considered in context. 9 environmental group s challenge to the approval of a Forest 10 Management Plan ( FMP ) for the Wayne National Forest in Ohio. 11 The Supreme Court held that the challenge to the FMP was not ripe 12 for review. With respect to the hardship prong, the Court 13 concluded that to withhold judicial consideration of plaintiffs 14 15 claims would not cause hardship as this court has come to use 16 that term because the provisions of the plan challenged by 17 plaintiff do not create adverse effects of a sort that 18 traditionally would have qualified as harm, meaning: 19 20 21 22 23 24 25 26 27 28 they do not command anyone to do anything or to refrain from doing anything; they do not grant, withhold, or modify any formal legal license, power, or authority; they do not subject anyone to any civil or criminal liability; they create no legal rights or obligations. Thus, for example, the Plan does not give anyone a legal right to cut trees, nor does it abolish anyone's legal authority to object to trees being cut. Id. at 733. The Court reasoned: Nor have we found that the Plan now inflicts significant practical harm upon the interests that the Sierra Club advances-an important consideration in light of this Court s modern ripeness cases. See, e.g., Abbott Laboratories, supra, at 152-154. As we have 28 1 2 3 4 5 6 7 8 9 pointed out, before the Forest Service can permit logging, it must focus upon a particular site, propose a specific harvesting method, prepare an environmental review, permit the public an opportunity to be heard, and (if challenged) justify the proposal in court. Supra, at 1668-1669. The Sierra Club thus will have ample opportunity later to bring its legal challenge at a time when harm is more imminent and more certain. Any such later challenge might also include a challenge to the lawfulness of the present Plan if (but only if) the present Plan then matters, i.e., if the Plan plays a causal role with respect to the future, then-imminent, harm from logging. Hence we do not find a strong reason why the Sierra Club must bring its challenge now in order to get relief. Cf. Abbott Laboratories, supra, at 152. 10 11 12 Id. at 733-34 (parallel citations omitted). The Court supported its finding that the challenges to the 13 FMP were not ripe for review by noting that Congress has not 14 provided for preimplementation judicial review of forest plans. 15 Id. at 737. 16 The Court reasoned that an FMP, which through standards guides future use of forests, does not resemble an 17 environmental impact statement prepared pursuant to NEPA. Id. 18 19 20 21 22 23 24 25 26 27 That is because in this respect NEPA, unlike the NFMA, simply guarantees a particular procedure, not a particular result. Compare 16 U.S.C. § 1604(e) (requiring that forest plans provide for multiple coordinated use of forests, including timber and wilderness) with 42 U.S.C. § 4332 (requiring that agencies prepare environmental impact statements where major agency action would significantly affect the environment). Hence a person with standing who is injured by a failure to comply with the NEPA procedure may complain of that failure at the time the failure takes place, for the claim can never get riper. Id. (emphasis added). Plaintiffs suggest that this passage means that a violation of NEPA procedures, at any time during the NEPA process, is 28 29 This reading of Ohio Forestry is 1 automatically ripe for review. 2 unreasonable and unjustifiably interventionist, as it would 3 effectively grant any party the right to judicially interfere 4 with the administrative process without regard to ripeness in any 5 NEPA procedural injury case. A more reasonable reading of this 6 7 language is found in Sierra Club v. U.S. Army Corps of Engineers, 8 446 F.3d 808, 815 (8th Cir. 2006)( Sierra Club v. USACE ), 9 interpreting this passage to mean that [t]he Supreme Court has 10 strongly signaled that an that an agency s decision to issue 11 either a [Finding of No Significant Impact] or an [EIS] is a 12 13 final agency action permitting immediate judicial review under NEPA. 5 14 15 5 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs reliance on Sierra Club v. USACE is similarly misplaced. There, the Army Corps of Engineers issued an Environmental Assessment ( EA ) and Finding of No Significant Impact ( FONSI ), in lieu of an EIS, for a project to construct a levee in Jefferson City, Missouri. The government moved to dismiss environmental plaintiff s NEPA challenge, arguing that there was no final agency action by the Corps because it had not yet entered into agreements with the City to construct the levee, nor had it received funding from Congress for the project. Id. The district court concluded the environmental plaintiffs lacked standing because no injury was certain to occur until the relevant agencies took additional steps to finalize a levee project. Id. at 816. The Eighth Circuit reversed, reasoning that [i]njury under NEPA occurs when an agency fails to comply with that statute, for example, by failing to issue a required environmental impact statement, and concluded, without providing any reasoning, that the NEPA dispute was ripe for judicial review when the lawsuit was filed.... Id. (citing Ohio Forestry, 523 U.S. at 737). Plaintiffs partially quote this case to argue that under NEPA injury occurs when an agency fails to comply with the statute...., but neglect to acknowledge that the remainder of this sentence adds the qualification: for example, by failing 30 1 2 3 Plaintiffs next cite a quote from Sierra Club v. Marsh, 714 F. Supp. 539, 590 (D. Maine 1989): 7 The ultimate harm protected by NEPA is harm to the environment, the risk of bureaucratic commitment may cause real harm to the environment where, as under NEPA, the court may not compel the agency to reach a different result, but may only compel agency reconsideration of its earlier decision in light of the new information acquired through recourse to the NEPA process. 8 Marsh entailed an application for a preliminary injunction to bar 9 the continuation of a construction project. 10 Plaintiffs apparently contend that the showing of irreparable 11 harm required to obtain a preliminary injunction is equivalent 4 5 6 12 to the ripeness hardship analysis. Id. at 543. Here, Even assuming, arguendo, 13 this contention is valid, its application to this case is not. 14 The Marsh court found that no irreparable injury would 15 16 likely result from initiation of the second phase of the 17 construction project, and that even if plaintiffs were likely to 18 succeed on the merits of their NEPA claims, a likelihood of 19 irreparable physical harm to the environment would have to be 20 demonstrated in order to obtain preliminary injunctive relief. 21 Id. at 543. The First Circuit reversed, reasoning that NEPA 22 seeks to create a particular bureaucratic decisionmaking 23 24 25 26 27 28 process, ... whereby administrators make important decisions with an informed awareness of how the decision might significantly to issue a required environmental impact statement. Id. at 816. This case, like Ohio Forestry, stands for no more than that a plaintiff s injury is complete once an agency fails to complete an EIS where one is required. 31 Sierra Club v. Marsh, 872 F.2d 497 (1st 1 affect the environment. 2 Cir. 1989). 3 information that NEPA seeks to put before the decisionmaker, the [I]f any such decision is made without the 4 harm that NEPA seeks to prevent occurs. Id. 5 [T]he harm at stake is a harm to the environment, but the harm consists of the added risk to the environment that takes place when governmental decisionmakers make up their minds without having before them an analysis (with prior public comment) of the likely effects of their decision upon the environment. NEPA's object is to minimize that risk, the risk of uninformed choice, a risk that arises in part from the practical fact that bureaucratic decisionmakers (when the law permits) are less likely to tear down a nearly completed project than a barely started project. In Watt we simply held that the district court should take account of the potentially irreparable nature of this decisionmaking risk to the environment when considering a request for preliminary injunction. 6 7 8 9 10 11 12 13 Id. at 500-01 (emphasis in original). 14 15 On remand, the district court reasoned: A NEPA violation which deprives agency decisionmakers of an informed awareness of significant environmental consequences of the challenged action is deemed harmful to the environment, by virtue of the added risk to the environment, ... that arises in part from the practical fact that bureaucratic decisionmakers (when the law permits) are less likely to tear down a nearly completed project than a barely started project. 16 17 18 19 20 21 714 F. Supp. 539 at 546 (internal citations and quotations 22 omitted). 23 already taken place, approving continued construction on the 24 project. Critically, in Marsh, the environmental review had The question in Marsh was whether continued 25 construction should be enjoined while plaintiffs claim that the 26 NEPA process had been inadequate was being litigated. 27 28 case, if a NEPA procedural violation deprives agency 32 In such a 1 decisionmakers of an informed awareness of significant 2 environmental consequences, such a procedural violation may be 3 deemed harmful to the environment, by virtue of the added risk 4 to the environment, ... that arises in part from the practical 5 fact that bureaucratic decisionmakers ... are less likely to tear 6 7 8 9 down a nearly completed project than a barely started project. Id. Here, the issue is very different. No project has yet been 10 formulated, nor can the record possibly reveal whether any NEPA 11 procedural violation has deprived agency decisionmakers of an 12 informed awareness of significant environmental consequences. 13 Plaintiffs suggest that they have suffered hardship because 14 15 they have been unable to meaningfully comment on the scope of the 16 EIS/EIR, which resulted in uninformed decision-making in 17 determining the scope of environmental review. 18 environmental review process is in progress and incomplete, there 19 is no way to know what the ultimate scope of the environmental 20 review will be. While the 21 Plaintiffs also suggest that the harm cannot be undone 22 after the EIS has been approved because the decision-makers 23 24 judgment has been biased by the previously completed process. 25 Doc. 157 at 23. This species of hardship is not recognized in 26 the law. 27 877 F. Supp. 294, 300 (W.D. Va. 1995), where plaintiffs argued A very similar argument was rejected in Muhly v. Espy, 28 33 1 that omission from the scoping process ... irreparably harmed 2 them and that additional meetings with agency personnel will be 3 meaningless. Citing the Ninth Circuit s analogous decision in 4 Northwest Coalition for Alternatives to Pesticides v. Lyng, 844 5 F.2d 588 (9th Cir. 1988), Muhly reasoned that, absent allegations 6 7 of bad faith on the part of the agency, plaintiffs were not 8 harmed by omission from the scoping process because plaintiffs 9 would have ample opportunity to be heard in upcoming meetings and 10 public comment processes concerning a draft EIS. 11 also Bennet Hills Grazing Assoc. v. United States, 600 F.2d 1308, 12 Id. at 301; see 1309 (9th Cir. 1979) (request for injunction against agency 13 proceeding with preparation of final EIS until plaintiffs had 14 15 been given ninety days in which to comment on draft EIS not ripe 16 for review because plaintiffs failed to show that judicial review 17 after preparation of the FEIS would be inadequate as a matter of 18 law). 19 20 The same conclusion is warranted here. Absent an allegation of bad faith, which is not made, procedural irregularities in the 21 early stages of the NEPA process cannot result in harm because 22 Plaintiffs will have additional legally-guaranteed opportunities 23 24 25 26 to participate. b. Plaintiffs have not demonstrated hardship. Interference with Further Administrative Action. The next ripeness factor concerns whether judicial 27 intervention would inappropriately interfere with further 28 34 Ohio Forestry, 523 U.S. at 733. 1 administrative action. 2 Defendants maintain that Plaintiffs judicial intervention into 3 the NEPA process would prove to be enormously disruptive. Doc. 4 177 at 3 (Federal Defendant s Reply). 5 The collaborative BDCP effort among the many federal, state, and local government agencies, water districts, non-governmental entities, and others is a substantial undertaking, recognizing the critical need for a different approach to conserve the many valuable resources of the Bay-Delta region and the water supply system that serves much of California and which depends on restoring a healthy ecosystem. While the two plaintiff organizations and perhaps others may not support the initial planning effort, their evident dissatisfaction does not warrant the type of extraordinary intervention by the federal judiciary that the plaintiffs seek to impose. 6 7 8 9 10 11 12 13 Id. 14 Plaintiffs respond, incomprehensibly, that because it is 15 undisputed that the BDCP has yet to be defined, judicial review 16 of the NOI at this stage would ensure that, once the project is 17 defined, the environmental review process is properly initiated 18 and the decision-making process properly informed. Doc. 157 at 19 23. This turns the ripeness doctrine on its head, the purpose of 20 which is to prevent the courts, through avoidance of premature 21 adjudication, from entangling themselves in abstract 22 disagreements over administrative policies, and also to protect 23 the agencies from judicial interference until an administrative 24 decision has been formalized and its effects felt in a concrete 25 way by the challenging parties. Abbott Labs., 387 U.S. at 148- 26 49. 27 Plaintiffs rely on Citizens for Better Forestry, 341 F.3d at 28 35 1 970-971, 977 (9th Cir. 2003) ( CBF ), to support the proposition 2 that, where procedural statutes are at issue, courts have held 3 claims to be ripe despite related on-going administrative 4 processes. 5 to a rule would not interfere with further administrative action, 6 despite the fact that the agency was working to produce a 7 replacement rule. 8 specifically found that the administrative process is at a 9 resting place, because the original rule exists as an optional 10 protocol for the agency to follow while the new rule is being 11 developed. 12 ongoing and no decision or rule has been made or promulgated. 13 In CBF, the Ninth Circuit held that a NEPA challenge Id. Id. at 977. But, there, the Ninth Circuit Here, the administrative process is undisputedly Plaintiffs raise Trustees for Alaska v. Hodel, 806 F.2d 14 1378, 1381 (9th Cir. 1986), as an example of judicial 15 intervention. 16 distinguishable. 17 Legislative Environmental Impact Report ( LEIS ) for a 18 statutorily-required report to Congress should be distributed for 19 public comment before submission of that Report to Congress. 20 Ninth Circuit held that plaintiffs challenge to the agency s 21 clear and final decision not to provide for presubmission 22 public review and comment of the completed LEIS was ripe, 23 otherwise Congress might act on the Report, effectively causing 24 the plaintiffs to lose their rights to make pre-submission public 25 comments on the LEIS. 26 Dept. of Energy, 287 F.3d 1256, 1263 (10th Cir. 2002)(challenge 27 to agency decision not to conduct NEPA or ESA analyses before 28 granting an easement to construct road was ripe, despite fact 36 The facts of Trustees for Alaska are entirely Trustees for Alaska addressed whether a The Id. at 1381; see also Sierra Club v. U.S. 1 that construction could not proceed without other approvals). 2 Here, by contrast, no portion of the BDCP NEPA review process has 3 yet reached a clear and final endpoint. 4 Plaintiffs also rely on National Wilderness Institute v. 5 U.S. Army Corps of Engineers, 2001 U.S. Dist. LEXIS 25930 (D.D.C. 6 2001). 7 agencies did not conduct a consultation under the ESA with 8 respect to the operation of an aqueduct, from which certain 9 discharges were allegedly harming listed species. 10 Defendants there argued that this challenge was not ripe for 11 review because the Environmental Protection Agency ( EPA ) was, 12 at that time, in the process of issuing a new permit for the 13 discharges under the Clean Water Act ( CWA ). 14 District of Columbia district court held that although the CWA 15 permitting process was ongoing, plaintiffs ESA challenge to the 16 aqueduct was ripe. 17 federal claim is based on alleged failure to comply with pre-EIS 18 NEPA procedures in connection with the development of the BDCP. 19 Allowing this claim to proceed would unwarrantedly interfere with 20 ongoing administrative scoping, planning and formulation 21 activities, which would make it impossible for the agency to 22 correct its own mistakes and ... apply its expertise. 23 Forestry, 523 U.S. at 735. 24 25 26 27 In that case, plaintiffs alleged that the defendant Id. at *17-18. Id. at *19. Id. at *17. The Here, Plaintiffs only Ohio This factor weighs against assertion of jurisdiction. c. Benefit from Further Factual Development. The final ripeness factor is whether the courts would benefit from further factual development of the issues presented. 28 37 1 Ohio Forestry, 523 U.S. at 733. 2 where further factual development may provide additional focus, 3 the agency may revise the plan, or review may ultimately become This factor supports dismissal 4 unnecessary. See Ohio Forestry, 523 U.S. at 736. 5 Plaintiffs maintain that [t]he NOI is a self-contained 6 7 notice that must inherently be based on the factual background 8 that exists prior to its issuance. 9 further factual background to develop, and the NEPA claims are 10 ripe for judicial review. 11 view of the ripeness cannot be the law. 12 Therefore, there is no Doc. 157 at 24. This overly myopic Here, the planning process is ongoing and subject to negotiations among many 13 stakeholders with widely competing interests. The factual record 14 15 will benefit in numerous ways from further development in a 16 dynamic and constantly changing water system where complex 17 hydrodynamics and ecological considerations are continuously in 18 flux. 19 operations on threatened species that have precipitated altered 20 flow and water delivery regimes are ongoing. Additionally, scientific studies of the impact of Project Moreover, the 21 agency may (1) issue additional NOIs, updating the public on 22 developments in the BDCP process; (2) conduct further scoping 23 24 meetings; (3) issue a draft BDCP and allow public comment on 25 that; (4) fundamentally alter or abandon the currently preferred 26 BDCP alternative; or (5) abandon the project altogether for any 27 number of reasons. Resolution of Plaintiffs claims is reasonably 28 38 1 likely to benefit greatly from further factual development by the 2 administrative agencies. 3 to their proposed interference with the planning process, which The Plaintiffs offer no genuine value 4 has the real potential to obstruct its progress. 5 6 7 8 9 d. Conclusion Re Ripeness. All three ripeness factors weigh heavily against assertion of jurisdiction over Plaintiffs NEPA claim. Plaintiffs NEPA claim is, alternatively, DISMISSED WITH PREJUDICE on this ground. 10 11 12 13 3. Sovereign Immunity a. Agency Action. Alternatively, Defendants argue that Plaintiffs NEPA claim 14 does not fall within the APA s limited waiver of sovereign 15 immunity, precluding the exercise of subject matter jurisdiction 16 over the only federal claim in this case. NEPA contains no 17 private right of action. Cetacean Cmty. v. Bush, 386 F.3d 1169, 18 19 1179 (9th Cir. 2004). As a result, NEPA claims must be brought 20 under the APA, and must fall within the APA s limited waiver of 21 sovereign immunity. 22 of Agric., 159 F.3d 1194, 1198 (9th Cir. 1998) (APA provides 23 limited waiver of sovereign immunity in suits seeking judicial 24 review of agency action). Id.; see also Gallo Cattle Co. v. U.S. Dep t 25 The APA provides that [a] person suffering legal wrong 26 because of agency action, or adversely affected or aggrieved by 27 28 agency action within the meaning of a relevant statute, is 39 1 entitled to judicial review thereof. 2 trigger section 702 s waiver, plaintiffs must identify some 3 agency action that affects [them] in the specified fashion; it 5 U.S.C. § 702. To 4 is judicial review thereof to which [they] are entitled. 5 Lujan v. NWF, 497 U.S. at 882. 6 7 Agency action is limited by statute to the whole or a 8 part of an agency rule, order, license, sanction, relief, or the 9 equivalent or denial thereof, or failure to act. 10 551(13). 11 the agency actions (including their equivalents) earlier defined 12 5 U.S.C. § A failure to act is merely a failure to take one of in § 551(13). Norton v. S. Utah Wilderness Alliance, 542 U.S. 13 55, 62 (2004) ( SUWA ). All of those categories involve 14 15 circumscribed, discrete agency actions, as their definitions make Id.; see 5 U.S.C. §§ 551(4) (defining rule ), (6) 16 clear. 17 ( order ), (8) ( license ), 10 ( sanction ), (11) ( relief ). 18 The only action that can be compelled under the APA is action 19 legally required. 20 Even where a court is asked to compel agency action, it may only SUWA, 542 U.S. at 63 (emphasis in original). 21 direct the agency to take action upon a matter, without 22 directing how it shall act. Id. 23 24 Here, Plaintiffs seek an order requiring federal defendants 25 to, among other things, release a draft of the BDCP to the 26 public, issue a new NOI, and conduct new scoping meetings. 27 Compl. ¶¶ 140, 149. Plaintiffs cannot dictate the terms or 28 40 1 content of any of these documents or meetings. 2 the complaint s allegations challenge any of the defined 3 categories of agency action or failure to undertake one of the Moreover, none of 4 forms of agency action, namely the whole or a part of an agency 5 rule, order, license, sanction, relief, or the equivalent or 6 7 denial thereof.... 5 U.S.C. § 551(13). None of these statutory 8 types of administrative action has been taken, nor is there any 9 law requiring the involved agencies to take any such actions. 10 The cases cited by Plaintiffs are distinguishable. 11 12 Coalition for Common Sense in Gov t Procurement v. Secretary of Veterans Affairs, 464 F.3d 1306, 1317 (Fed. Cir. 2006), 13 considered whether a letter issued by the Department of Veteran s 14 15 Affairs, requiring manufacturers of drugs covered by the 16 Department of Defense s ( DOD ) health care plan to refund to DOD 17 the difference between the drugs wholesale commercial price and 18 their federal ceiling prices, constituted agency action. 19 Federal Circuit concluded that the letter fell within 5 U.S.C. 20 § 551(4) s definition of a substantive rule. The Id. at 1317. 21 Likewise, in Oregon Natural Desert Association v. U.S. Forest 22 Service, 465 F.3d 977, 983 (9th Cir. 2006), the Ninth Circuit 23 24 classified the Forest Service s issuance of annual operating 25 instructions ( AOIs ) to permittees who graze livestock on 26 national forest land as agency action. 27 specifically incorporated into each grazing license, an AOI is 28 41 Because each AOI was 1 properly understood to be a license for purposes of determining 2 whether it is an agency action under the APA. 3 contrast, Plaintiffs point to not one agency action enumerated Id. Here, by 4 in § 551 that could plausibly encompass the administrative 5 proceedings at issue in this case. 6 7 Plaintiffs repeat citation to Trustees for Alaska, 806 F.2d 8 at 1381, which concerned section 1002(h) of the Alaska National 9 Interest Lands Conservation Act ( ANILCA ), 16 U.S.C. § 3142(h). 10 ANILCA requires the Secretary of the Interior to submit a report 11 to Congress containing: (1) specific information about potential 12 oil and gas production, as well as fish and wildlife resources 13 within the coastal plain of the Artic National Wildlife Refuge 14 15 ( ANWR ); and (2) recommendations concerning possible development Id. at 1379. 16 of oil and gas within ANWR. 17 that it needed to prepare a legislative EIS ( LEIS ) in 18 connection with its development of the report, but refused to 19 provide public review and comment prior to submission of the LEIS 20 and the report to Congress. Id. at 1380. Interior determined The Ninth Circuit held 21 that the case was ripe for review under Abbott Laboratories, 387 22 U.S. at 148-49 (1967), insofar as the disagreement [between the 23 24 parties] is concrete.... clear and final, because Interior had 25 decided not to provide pre-submission public review and comment 26 and denial of review at this point may impose substantial 27 hardship on the [plaintiffs]. Id. at 1381. 28 42 Trustees for Alaska 1 did not even consider the APA s agency action requirement, 2 which is distinct from the ripeness inquiry. 3 Because Plaintiffs have not and cannot allege that any APA 4 agency action, has been carried out, or that the agencies will 5 not take any required action, the APA s waiver of sovereign 6 7 immunity does not apply and the district court lacks subject 8 matter jurisdiction over Plaintiffs NEPA Claim, requiring its 9 dismissal. 10 b. Final Agency Action. 11 APA section 704 provides: 12 19 Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action. Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority. 20 Where review is sought not pursuant to specific authorization in 21 the substantive statute, but only under the general review 13 14 15 16 17 18 22 provisions of the APA, the agency action agency action in 23 question must be final agency action. Lujan v. NWF, 497 U.S. 24 25 at 882 (quoting 5 U.S.C. § 704). The APA thus insulates from 26 immediate judicial review the agency s preliminary or procedural 27 steps. 28 1189, 1196 (9th Cir. 1997). Western Radio Servs. Co., Inc. v. Glickman, 123 F.3d Section 704 in fact specifically 43 1 provides that [a] preliminary, procedural, or intermediate 2 agency action or ruling not directly reviewable is subject to 3 review on the review of the final agency action. 4 To be considered final, the agency action (1) should mark 5 the consummation of the agency s decision-making process, and 6 7 (2) be one by which rights or obligations have been determined Bennett, 520 U.S. at 8 or from which legal consequences flow. 9 177-78 (internal citations and quotations omitted). 10 conditions must be satisfied for agency action to be final. 11 at 178. 12 Both Id. The Supreme Court has interpreted the finality element in a pragmatic way. FTC v. Standard Oil of Cal., 449 13 U.S. 232, 239 (1980). The core question is whether the agency 14 15 has completed its decisionmaking process, and whether the result 16 of that process is one that will directly affect the parties. 17 Franklin v. Massachusetts, 505 U.S. 788, 797 (1992). 18 factors provide indicia of finality, such as whether the action 19 amounts to a definitive statement of the agency s position, 20 whether the action has a direct and immediate effect on the day- Certain 21 to-day operations of the party seeking review, and whether 22 immediate compliance with the terms is expected. Oregon 23 24 Natural Desert Ass n, 465 F.3d at 982 (internal citations and 25 quotations omitted). Finality is a jurisdictional requirement. 26 Lujan v. NWF, 497 U.S. at 882; Ukiah Valley Med. Ctr. v. FTC, 911 27 F.2d 261, 264 n.1 (9th Cir. 1990). 28 44 1 2 (1) Consummation of Decision-Making Process. To constitute the consummation of an agency s decision- 3 making process, the challenged act must not be of a merely 4 tentative or interlocutory nature. Bennett, 520 U.S. at 178. 5 The preliminary NEPA steps challenged by Plaintiffs are 6 inherently tentative and interlocutory in nature. The agencies 7 8 engaged the public at an early stage to ensure that the full 9 range of alternatives and issues related to the development of 10 the BDCP is identified. 11 consistent with the purpose of the scoping process, which is to 12 begin[] a meaningful dialogue with members of the public about a 13 proposed action. 74 Fed. Reg. at 7,260. This is Kootenai Tribe of Idaho v. Veneman, 313 F.3d 14 1094, 1117 (9th Cir. 2002). 15 16 An action marks the consummation of an agency s decision- 17 making process if it constitutes the agency s last word on the 18 matter. 19 NEPA context, the action must be the agency s last word on the 20 project s environmental impact as a whole. 21 Co. v. Lewis, 676 F.2d 1317, 1319 (9th Cir. 1982). Oregon Natural Desert Ass n, 465 F.3d at 984. In the Friedman Bros. Inv. The issuance 22 of a final EIS or a ROD constitutes final agency action. Sierra 23 Club v. Slater, 120 F.3d 623, 631 (6th Cir. 1997) (citing Oregon 24 25 Natural Resources Council v. Harrell, 52 F.3d 1499, 1504 (9th 26 Cir. 1995)). In contrast, preliminary decisions, even seemingly 27 final ones, prior to the issuance of a final environmental 28 45 See Western Radio Servs., 123 F.3d 1 documents are insufficient. 2 at 1197 (final agency decision to construct road not final agency 3 action until EA completed and FONSI issued); City of San Diego v. 4 Whitman, 242 F.3d 1097 (9th Cir. 2001)(no final agency action 5 where agency issued letter rejecting request for agency s opinion 6 7 whether certain statutory requirements would apply to a not-yet- 8 filed application to renew a permit); Earth Island Institute v. 9 Morse, 2009 WL 2423478, *9 (E.D. Cal. 2009)(Regional Forester s 10 letter directing forest supervisors to ensure forest density does 11 not exceed an upper limit not final agency action because it 12 gives supervisor complete discretion to decide what upper limit 13 to use). 14 15 Plaintiffs maintain that the issuance of the NOI is not 16 tentative or interlocutory in nature, and does consummate the 17 agency s decision-making process. 18 argument, Plaintiffs asserted that the issuance of the challenged 19 NOIs in this case constituted the consummation of the agency s 20 decision to move forward with the NEPA process before the project Specifically, at oral 21 had been developed. In support of this assertion, Plaintiffs 22 cite California v. Block, 690 F.2d 753, 762 (9th Cir. 1982), for 23 24 the general proposition that agencies are obliged to adhere to 25 the procedures mandated by NEPA. 26 nothing whatsoever to do with the final agency action 27 requirement. 28 46 This unsurprising holding has 1 Contrary to Plaintiffs assertions, the NOI and ongoing 2 scoping activities are, by their very nature, not the agency s 3 last word on the BDCP. The last word will be the final 4 adoption of a finite and certain BDCP that is intended to be 5 implemented. Nor is the decision to designate a particular 6 7 combination of agencies as lead agencies, as that designation 8 could be changed, actual roles shifted, and/or additional 9 justification provided for any such decision in the final 10 document. 11 12 This conclusion is supported by Muhly, 877 F. Supp. at 294, where property owners claimed they were improperly excluded from 13 a NEPA scoping process. The agencies had already: (1) decided 14 15 that the applicant s proposal called for major federal action, 16 thereby necessitating the creation of an environmental impact 17 statement; (2) published an NOI, as well as several revisions to 18 it; (3) and completed the scoping process and identification of 19 preliminary alternative. 20 agency action had taken place because all of these steps mark Id. at 300. Nevertheless, no final 21 the infancy, not the termination, of the NEPA process. Id. 22 23 24 25 26 This is clear when one considers what remains to be done. Among the stages left to be completed are: the issuance of a [draft EIS]; public comment during a compulsory forty-five day waiting period; and the issuance of a [final EIS]. All of these stages require substantial input from the public, during which the Plaintiffs could conceivably cure any of the defects in the NEPA process they believe have taken place so far. 27 Muhly, 877 F. Supp. at 300. It need not be repeated that the 28 47 1 BDCP is still undergoing formulation and revision. 2 (2) 3 4 5 Determining Rights, Obligations, or Legal Consequences The second prong of the Bennett final agency action inquiry is whether the action is one by which rights or 6 obligations have been determined or from which legal consequences 7 flow. 520 U.S. at 178. This test may be satisfied, for example, 8 9 by an agency action that alter[s] the legal regime.... Id. 10 Bennett held that the issuance of a Biological Opinion and 11 accompanying Incidental Take Statement under the ESA altered the 12 legal regime for the action agency by authorizing take of 13 endangered species in a manner that was not previously permitted. 14 Id. In contrast, neither the NOI nor the decision to proceed 15 with multiple lead agencies changes the legal regime governing 16 17 18 agency action. Bennett s second prong may also be met if agency action has 19 a direct and immediate effect on the day-to-day business of the 20 subject party, requiring immediate compliance with [its] 21 terms. 22 citations and quotations omitted); Hecia Min. Co. v. EPA, 12 F.3d F.T.C. v. Standard Oil, 449 U.S. at 239 (internal 23 164, 165-66 (9th Cir. 1993). In Hecia, the Ninth Circuit found 24 that the EPA s decision, made pursuant to CWA § 304, to include 25 26 certain rivers on a list of a state s navigable waters not 27 expected to meet water quality standards was not final agency 28 action. Id. at 165. The listing decision does not have the 48 1 status of law or a direct and immediate effect on the day to day 2 business of the complaining party. 3 final agency action that would require action on the part of the Id. at 165-66. Rather, the 4 plaintiff is the issuance of a CWA permit. Id. at 166. The 5 listing decision was just a preliminary step in the permitting 6 7 process. Id. Likewise, the issuance of an NOI, the early initiation of 8 9 the scoping process, and/or the decision to use multiple lead 10 agencies does not affect Plaintiffs daily operations or require 11 them to do, or refrain from doing, anything in formulating the 12 BDCP. These are merely preliminary procedures which will lead to 13 the agency arriving at a final decision. In this way, this case 14 15 is more like National Parks Conservation Ass n v. Norton, 324 16 F.3d 1229, 1238 (11th Cir. 2003), where the Eleventh Circuit held 17 that the National Park Service had not undertaken final agency 18 action under the APA in evaluating various options for the 19 management of Biscayne National Park, because it had done 20 nothing beyond establishing a committee to review alternatives[,] 21 ... formulating management options and submitting those plans for 22 public comment. Id. As a result, no rights or obligations 23 24 have been fixed by its behavior, nor has it taken (or refused to 25 take) action so as to impose any legal consequence on any party. 26 Id. 27 28 49 1 c. 2 40 C.F.R. § 1500.3. In arguing that their NEPA claim is reviewable under APA § 3 704, Plaintiffs point to 40 C.F.R. § 1500.3, a regulation 4 promulgated by the CEQ, the agency charged with implementing 5 NEPA. These regulations, overall, are entitled to substantial 6 deference. See Save Our Ecosystems v. Clark, 747 F.2d 1240, 1244 7 8 9 10 11 12 13 14 15 16 17 (9th Cir. 1984). Section 1500.3 provides, in pertinent part, that, with respect to regulations implementing NEPA: It is the Council s intention that judicial review of agency compliance with these regulations not occur before an agency has filed the final environmental impact statement, or has made a final finding of no significant impact (when such a finding will result in action affecting the environment), or takes action that will result in irreparable injury. Furthermore, it is the Council s intention that any trivial violation of these regulations not give rise to any independent cause of action. It is undisputed that neither an EIS nor a FONSI has been prepared in connection with the BDCP. Plaintiffs claim that they 18 have suffered irreparable injury for the same reasons that they 19 claim hardship under the ripeness doctrine (e.g., that issuing 20 21 a NOI and conducting scoping prior to identifying the nature of 22 the project itself deprived them of a meaningful opportunity to 23 participate in the process). 24 Plaintiffs exclusive claims of preliminary procedural injury do 25 not rise to the kind of hardship or irreparable injury 26 The same result applies. necessary to invoke subject matter jurisdiction. 27 28 50 See supra Part 1 V.B.2.a. 6 2 dictate how the administrative formulation and ultimate adoption 3 of the BDCP is carried out. Plaintiffs are not entitled by law to direct or If there are any infirmities in the 4 process, Plaintiffs may address any illegality at the appropriate 5 time, when all administrative actions to create a final BDCP have 6 7 8 occurred. C. 9 28 U.S.C. § 1367(a) provides: 10 Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. 11 12 13 14 15 16 State Law Claims/Supplemental Jurisdiction. Dismissal of all Federal claims under Rule 12(b)(1) for lack of 17 subject matter jurisdiction precludes the exercise of 18 supplemental jurisdiction. See Herman Family Revocable Trust v. 19 20 Teddy Bear, 254 F.3d 802, 806 (9th Cir. 2001). 21 federal claim under NEPA has been dismissed for lack of subject 22 matter jurisdiction on standing, ripeness, and sovereign immunity 23 (based on absence of final agency action) grounds. Here, the only Supplemental 24 25 26 27 28 6 Whether, in light of the APA s clear imposition of a final agency action requirement, the CEQ can carve out an additional exception to the final agency action requirement that permits challenges to non-final actions upon a showing of irreparable injury, was not raised by the parties. Nor is it necessary to adjudicate that question here, as multiple, alternative grounds for dismissal are present. 51 1 jurisdiction may not be exercised over the Plaintiffs state law 2 claims. 3 state claims which are derivative of purported federal claims 28 U.S.C. § 1367(c). A federal court has no interest in 4 over which no federal jurisdiction exists. 5 6 D. Motion to Quash Service. 7 Dismissal with prejudice of this action renders State 8 9 Defendants motion to quash service moot. 10 11 Doc. 105. VI. CONCLUSION. Defendants motions to dismiss are GRANTED WITH PREJUDICE 12 AND WITHOUT LEAVE TO AMEND. Plaintiffs do not have standing to 13 bring their sole federal claim, arising under NEPA. 14 15 Alternatively, Plaintiffs NEPA claim (1) is not ripe for review, 16 and (2) does not fall within the APA s limited grant of sovereign 17 immunity because there has been no final agency action. 18 19 20 Defendants shall submit a form of judgment terminating this action in accordance with this memorandum decision and order within five days of electronic service. 21 22 SO ORDERED 23 Dated: September 8, 2009 /s/ Oliver W. Wanger Oliver W. Wanger United States District Judge 24 25 26 27 28 52

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