San Luis & Delta-Mendota Water Authority et al v. Locke et al, No. 1:2009cv01053 - Document 132 (E.D. Cal. 2010)
Court Description: Memorandum Decision and Order Denying Federal Defendants Motion to Dismiss (Doc. 80), Denying as Moot Motions to Strike Portions of Motions to Dismiss (Doc. 92, 97), and Denying Motion to Strike Portions of Reply (Doc. 125), signed by Judge Oliver W. Wanger on 1/12/2010. (Coffman, Lisa)
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1 2 3 4 UNITED STATES DISTRI CT CO URT 5 FOR THE EASTERN DISTRICT OF C ALIFORNIA 6 7 CONSOLID ATED SALMON CASES 1:09-CV- 01053 OWW DLB 8 SAN LUIS & DELTA-MENDOTA WATER AU THORITY, et al. v. LOCKE, e t al. MEMORANDUM DEC ISION AND ORDER DENYING FEDERA L DEFENDANTS MO TION T O DISMISS (DOC. 80), D ENYING AS MOOT MOTION S TO S TRIKE PORTIONS OF MO TION T O DISMISS (DOC. 92, 97 ), AND DENYING MOTION TO ST RIKE PORTIONS OF RE PLY (D OC. 125) 9 10 11 12 13 14 15 16 17 18 19 20 STOCKTON EAST WATER DISTRICT , et a l. v. NOAA, et al. STATE WA TER CONTRACT ORS v. LOCKE, e t al. Kern COU NTY WATER AG ENCY, et al. v. UNITED STATES DEPARTME NT OF COMMER CE, et al. OAKDALE IRRIGATION D ISTRICT, et al. v . UNITED STA TES DEPARTME NT OF COMMER CE, et al. METROPOL ITAN WATER D ISTRICT OF CALIF ORNIA v. NAT IONAL MARINE F ISHERIES SER VICE, et al. 21 22 23 I. INTRODUCTION These co nsolidated c ases all challenge a June 4, 2009 24 biologic al opinion i ssued by the National Marine 25 Fisherie s Service ( NMFS ) finding that the coord inated 26 operatio ns of the fe deral Central Valley Project ( CVP ) 27 and Stat e Water Project ( SWP ) are likely to jeo pardi ze 28 1 1 the cont inued existe nce and adversely affect the critical 2 habitat of certain s almonid and other species ( 2 009 3 Salmon B iOp ). 1 4 5 6 7 Before t he court for decision is Federal Defendan ts motion t o dismiss, p ursuant to Federal Rule of Civil Procedur e 12(b)(1), two of the six consolidated a ctions, 8 namely t he cases bro ught by (1) co-Plaintiffs Kern Cou nty 9 Water Ag ency ( Kern ) and Coalition For a Sustain able 10 Delta ( Coalition ) and (2) the Metropolitan Wate r 11 District of Southern Cali fornia ( Met ), as dupl icati ve 12 13 14 15 of (3) t he consolida ted lawsuit filed be the Stat e Water Contract ors ( SWC ). Doc. 80-2, file d Nov. 2, 2009. Alternat ively, Feder al Defendants argue that if t he 16 Kern/Coa lition and M et cases remain viable, the S WC case 17 should b e dismissed for lack of standing, in part because 18 Kern and Met are mem bers of SWC. 19 dismissa l on either ground, Doc. 99, as do Met, D oc. 102, 20 and the Kern/Coaliti on pl aint iffs, Doc. 107. 21 22 23 24 25 26 27 28 Id. SWC opposes Federal Defendants r eplied, arguing, among other things, that dismiss al of the Kern/Co alition acti on is 1 Th e sp ec ie s ad dr es se d b y th is b io l ogi ca l op in io n ar e: ( 1) end an ge re d Sa cr am en to Ri ve r wi nt er - run C hi no ok s al mo n (O nco rh yn ch us tsh aw yt sc ha ) ( wi nt er -ru n ); ( 2) t h rea te ne d Ce nt ra l Va ll ey sp ri ng run C hi no ok s al mo n (O . t sh aw yt sc ha ) ( sp ri ng -r un ) ; (3 ) thr ea te ne d Cen tr al V al le y ( CV ) st ee lh ea d (O . my ki ss ); ( 4) t hr ea te ned C en tr al Cal if or ni a Co as t ( CC C ) s te el he ad (O. m yk is s) ; (5 ) th re ate ne d Sou th er n Di st in ct P op ula ti on S eg me n t ( D PS ) o f No rt h Am eri ca n gr ee n stu rg eo n (A ci pe ns er m edi ro st ri s) ( Sou th er n DP S of g re en st ur ge on ) ; and ( 6) e nd an ge re d So uth er n Re si de n t k il le r wh al es ( Or ci nus o rc a) ( S ou th er n Re si de nt s ) ( co ll ec ti ve l y, th e L is te d Sp ec ie s ) . 2 1 appropri ate, despite the fact that Kern s co-plaintiff, 2 the Coal ition, is no t a member of the SWC. 3 should the Court be inclined to deny this motion as to 4 5 6 7 Never theless, Coalitio n, Federal Defen dant s request that dismi ssal should b e without pr ejudice, so that Federal Defe ndants can purs ue discovery into the Coalition s members hip. 8 Doc. 114 at 6. 9 this arg ument, becau se it was raised for the firs t time 10 in reply . 11 requests leave to fi le a surreply addressing this 12 13 14 15 The Coalition filed a motion to s trike Doc . 125. In the alternative, the Coa lition argument , which has been lodged as Attachment A t o their motion t o strike. D oc. 125-2. The Coal ition and SW C separately move to strike t hose 16 portions of Federal Defendants motions that conc ern 17 their cl aims, on the ground that Federal Defendan ts 18 failed t o give eithe r the Coalition or SWC proper notice 19 that the y would be s eeking dismissal of their cla ims. 20 Docs. 92 & 97. 21 22 23 24 The September 25, 2009 Sche duling Conferen ce Order pro vided: [i]f any party believ es any ... issu e is resolva ble by early dispositive moti on, that party sh all give not ice of the nature of the clai ms on or 25 before O ctober 10, 2 009. 26 2009, Fe deral Defend ants gave notice of their int ent to 27 move to dismiss the claims brought by KCWA and Me t, but 28 Doc. 51 at 21. 3 On Oct ober 5, 1 made no mention of t he Coalition or SWC s claims, Doc. 55 2 at 1, no r have Feder al Defendants made any reques t to 3 modify t he Schedulin g Order. 4 5 6 7 8 9 10 11 12 the moti ons to strik e. replied. Federal Defendants oppose Doc. 113. Th e Coal ition and S WC Docs. 127 & 128. II. STANDARD OF DE CISION Federal Defendants r ely exclusively on Federal Ru le of Civil Procedure 1 2(b)(1), which allows a motion to dismiss for lack of subject matter jurisdiction. It i s a fundamen tal precept that federal courts are court s of 13 limited jurisdiction . 14 must not be disregar ded or evaded. 15 Erection Co. v. Krog er, 4 37 U .S. 365, 374 (1978). 16 plaintif f has the bu rden to e stablish that subject mat ter 17 jurisdic tion is prop er. 18 19 20 21 Limits upon federal jurisd iction Owen Eq uipmen t & The Kokkonen v. Guardian Lif e Ins. Co., 511 U.S. 375, 377 (1994). This burden, at the pleading stage, must be met by pleading sufficien t allegati ons to show a proper basis for the court to 22 assert s ubject matter jurisdiction over the actio n. 23 McNutt v . General Mo tors Acceptance Corp., 298 U.S. 17 8, 24 189 (193 6); Fed. R. Civ. P. 8(a)(1). 25 challeng es jurisdict ion facially, all material 26 27 28 When a defe ndant allegati ons in the c omplaint are assumed true, an d the question for the cou rt is whether the lack of fed eral 4 1 jurisdic tion appears from the face of the pleadin g 2 itself. 3 2009). Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir . 4 III. DISCUSSI ON 5 6 7 A. The Chal lenged Parti es. In its C omplaint, SW C alleges that Plaintiff [SW C] 8 is ... a non-p rofit mutual benefit corporation organized 9 and exis ting under t he laws of the State of Calif ornia to 10 11 12 13 represen t the common interests of 27 public water supply agencies located in California s Central Valley, in the San Fran cisco Bay ar ea, along California s Centra l Coa st, 14 and in S outhern Cali fornia. 15 also all eges: 16 17 18 19 20 21 22 23 24 25 26 27 28 SWC Complaint at ¶1 4. SWC [T]he ef fects of Def endants actions will be felt by [State Contr actors] and its member agencies .... The me mber agencies of the State Contract ors include 27 public distric ts and agencies which provi de water in numerous counties , including to users in Kings and Kern Counties [,] ... redu ctions in exports from the Delta wi ll place gre ater demands upon alternat ive sources of water, including groundwa ter, that are use d to meet reasonab le and bene ficial water demands within Merced, Fresno, Kings and Ke rn Counties. Id. at ¶ 13. The Kern /Coali tion Compla int contains the f ollowi ng allegati ons regardin g Kern: [Kern] i s a public a gency that was created in July 196 1 by a speci al ac t of the Californi a State Le gislature an d ratified by the electorate of Kern County in Se ptember 1961. [Kern] was 5 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 granted the primary power to acquire and contract for water s upplies for Kern County. (Kern Co alition Comp laint at ¶9.) [Kern] i s a wholesal er of SWP water for ... agricult ural and mun icipal and industrial uses. (Id.) The serv ice area for [Kern] encompasses all the territor y within the San Joaquin Valley portion of Kern County. (Id.) [Kern] p rovides a po rtion of, and in some cases the enti re water sup ply for approximately 719,000 acres of pri me farmland . . . , and for some 500 ,000 residen ts of Kern County. (Id.) Approxim ately 98 per cent of [Kern s] water is imported by the [Sta te Water Project ( SWP )]. (Id.) In terms of contract amou nt w ith [the Depar tment of Water Resources ( DWR )], [Kern] is the second l argest SWP c ontractor. (Id.) The Kern /Coali tion Compla int also contains the fo llowi ng allegati ons regardin g the Coalition and its membe rs: Plaintif f Coalition is comprised of i ndividual and agri cultural wat er users and of individuals within t he San Joaqu in Valley. The Coalition is bringing this action on behalf of itself and its members. (Id. at ¶ 12.) The purp ose of the C oalition is to advance the interest s of its members, namely, (1) to be tter the cond itions of th ose engaged in agricultural pursuits in the San Joaquin Valley and (2) to ensure a sustainable and reliable water supply by prote cting the De lta and promoting a strategy to ensur e its sustai nability. (Id.) Certain Coalition me mbers have contracts with various agencies for the delivery of [Central Valley P roject ( CVP )] and SWP water, and as such, de pend on CVP and SWP deliveries from the Delta to the San Joa quin Valley for their water supply. Certain Coalitio n members have contract s to receive water through 2035. These contract s are expect ed to be extended beyond that dat e. Thus, th e Coalition and its members have a l ong-term interest in the overall health of the D elta and its ecosystem, which includes 6 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 the main tenance of v iable populations of the salmonid s and the gr een sturgeon [at issue in the liti gation]. (Id. at ¶ 13.) Certain Coalition me mbers contracts for delivery of SWP wate r require payment for their full con tractual ent itlement regardless of the amount o f water actu ally delivered in any given year thr ough the SWP . (Id. a t ¶ 14.) [R]educe d delivery o f surface water through the SWP is l ikely to res ult in increased reliance on groundwa ter for irri gation supplies, which will result i n overdraft of the groundwate r basi ns that und erlie the la nds of the Coalition members. (Id.) Coalitio n members vi ew, enjoy, and use the Delta ecosyste m. Coalitio n members routinely engage in vario us recreatio nal activities in the Delta includ ing boating, fishing, and wildlife viewing and have c oncrete plans to continue to do so in the future. ... The decline of the salmonid s and the Li sted Species has had and continue s to have a substantial negative impact on Coali tion members , impairing their use and enjoymen t of the Del ta and Listed Spe cies. (Id. at ¶15.) Met s Co mplaint alle ges: 37. The Metropolitan Water District of Southern Californ ia is the la rgest provider of treated drinking water in th e United States. 38. Metr opolitan was created pursuant to an Act of the C alifornia Le gislature in 1927 and was official ly incorpora ted in December of 1928. 39. The mission of M etropolitan, as promulgated by its B oard, is to provide its service area with ade quate and re liable supplies of high quality water to mee t present and future ne eds in an en vironmentall y and economically responsi ble way. 40. Metr opolitan s s ix-county service area encompas ses 5,200 sq uare miles in Los Angeles, Orange, Riverside, S an Bernardino, San Diego and Ventura counties. So me agencies within this service area depend on Metropolitan to supply 100 perc ent of their water needs. In fact, 19 million Californians approximately ha lf of the populati on of the st ate rely on Metropolita n for some or all of the w ater they use in their homes 7 1 and busi nesses. Metropolitan s water supply helps su stain the ec onomy of Southern California which ge nerated a gr oss domestic product in 2006 of almos t $970 billi on. This economy is larger than mos t nations of the world. 2 3 4 41. Beca use Southern California has an arid climate and does not have sufficient local supplies of water to support its population and economy, water must be imported into the region. Metropol itan imports water from two principal sources: northern Ca lifornia via the SWP, and the Colo rado River v ia the Colorado R iver Aqueduct . 5 6 7 8 42. Metr opolitan fac es massive challenges in providin g a reliable and high quality water supply f or Californi ans, including population growth, increasing e nvironmental regulations, and vari able weather conditions. 9 10 11 43. SWP water supplies are especially impor tant to Metro politan beca use SWP water has lower salinity content tha n Colorado River Aqueduct water. T hrough blend ing, SWP water helps attain water qu ality standa rds, facilitates use of recycled water, and increases groundwater conjunct ive use appl ications. 12 13 14 15 16 17 B. Motion t o Dismiss Du plicative Complaints. Federal Defendants r ely on Adams v. Califor nia 18 Departme nt of Health Services, 487 F.3d 684 , 688 (2007 ), 19 to suppo rt the unrem arkable proposition that a di strict 20 21 22 23 court ge nerally has the discretion to dismiss a duplicat ive later-filed a ction, to stay tha t acti on pending resolution o f the previously filed action , to 24 enjoin t he parties f rom proceeding with it, or to 25 consolid ate both act ions. 26 was a ch allenging a state agency s de cision not to hir e 27 her, sou ght to amend the complaint, b ut not until well 28 In Adams, the p lainti ff, w ho 8 1 after th e deadline for amendment. 2 denied p laintiff s m otion to amend and entered a final 3 judgment . 4 5 6 7 Id. at 687. Th e dist rict court [I]n an attempt to avoid the conseque nces of her own delay and to circumvent t he district court s den ial of her untimely motion, the exact sa me plaintiff then filed a second lawsuit, raising 8 similar claims, but naming some additional defend ants. 9 Id. at 688. 10 11 12 13 14 15 The Nint h Circuit be gan w ith the general proposit ion that [p ]laint iffs generally have no right to mai ntain two sepa rate actions involving the same subject m atter at the same time in the same court and against the s ame defendan t. I d. Then, borrowing from the test f or cl aim 16 preclusi on, Ad ams articul ated a test for de termin ing 17 whether a suit is du plicative: 18 [I]n ass essing wheth er the second action is duplicat ive of the f irst, we examine whether the causes o f action and relief sought, as well as the part ies or privi es to the action, are t he same. 19 20 21 Id. at 6 88-89. 22 Under th e first part of the duplicative action te st, 23 24 [t]o as certain whet her successive causes of acti on are 25 the same , [a court s hould] use the transaction te st, 26 develope d in the con text of claim preclusion. 27 689. 28 9 Id. at 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Whether two events a re part of the same transact ion or serie s depends on whether they are rela ted to the s ame set of facts and whether they cou ld convenien tly be tried together. In applying the transac tion test, we examine four criteria : (1) whethe r rights or inter ests establis hed in the p rior judgment would be destroye d or impaire d by prosecution of the second a ction; (2) w hether substantially the same evi dence is pre sented in the two actions; (3) whet her the two suits involve infringement of the s ame right; a nd (4) whether the two suits arise ou t of the sam e transactional nucleus of facts. The last of these criteria is the most importan t. Id. (int ernal citati ons and quotations omitted). The two actions at i ssue in Adams shared a common transact ional nucleu s of facts. Likewise, it is undisput ed that all six consolidated cases share a common transact ional nucleu s of facts, namely the issuan ce of 16 the 2009 Salmon BiOp , and that the claims in all six 17 cases su bstantially overlap. 18 See Doc . 51 at 7-18. Under th e second par t of the duplicative action t est, 19 a court must examin e whether ... the parties or privies 20 to the a ction[] are the same. 21 22 23 24 25 26 27 28 Id. a t 689. Adams applied the concept of virtual representation t o determin e whether se veral new defendants added to the second a ction were in privity with the original defendan t. Id . at 689. Although the concept of privity traditionally applied to a narrow class of relationships in which a person is so identified in interest with a party to former li tigation that he represents 10 1 2 3 4 5 6 7 precisel y the same r ight in respect to the subject matter invol ved, we have expanded the concept to include a broader array of relation ships which fit under the title of virtual representat ion. The necessary elements of virtual represent ation are an identity of interest s and adequate represen tation. Add itional features of a virtual representati on relationship include a close re lationship, substantial participation, and tact ical maneuve ring. 8 Id. at. 691. 9 represen tation, Adams fo und the new defendants w ere in 10 privity with the old . 11 conclude d that the d istrict court did not abuse i ts 12 discreti on by dismis sing the second action with p rejudce. 13 14 Applying the concept of virt ual In light of these findings , Adams Id. at 6 92. 19 Dismissa l of the dup licat ive lawsuit, more so than the issuance of a stay or the enjoinment of proceedi ngs, promote s judicial economy and the comprehe nsive dispos ition of litigation. In dismissi ng the dupli cative suit with prejudice, the dist rict court a cted to protect t he parties from vex atious and e xpensive litigation and to serve th e societal i nterest in bringing an end to dispu tes. 20 *** 15 16 17 18 21 22 23 24 Adams ha d a full and fair opportunity to raise and liti gate in her first action the claims she now asse rts in this action. Id. at 6 92 (in ternal citations omitted). 25 The Supr eme Court ha s since rejected virtual 26 represen tation as a basis for finding privity in the 27 preclusi on context. 28 Taylor v. Sturge ll, __ U.S. __, 1 28 11 1 S. Ct. 2 161, 2178 (2008). 2 articula ted six cate gories of excepti ons to the general 3 rule for bidding nonp arty preclusion. 4 5 6 7 Instead, the Supreme C ourt Id. a t 2172 . First, a person who agrees to be bound by the determin ation of iss ues in an action between othe rs is bound... . Id . Second, certain pre-exist ing 8 substant ive legal re lationships between the perso n to be 9 bound an d a party to the judgment will bind cert ain non- 10 parties. 11 certain limited circ umstances, a nonparty may be bound by 12 13 14 15 Id. (internal quotations omitted). Third, in a judgme nt [if] she was adequately re presented by someone with the same intere sts who was a party to the su it. Id. (int ernal quotation omitted). Fourth, a nonparty is 16 bound by a judgment if she assumed control over t he 17 litigati on in which the judgment was rendered. 18 2173 (in ternal quotation omitted). 19 by a jud gment may no t avoid its preclusive force by 20 relitiga ting through a proxy. 21 22 23 24 25 Id. Id. at Fifth, a par ty bound Sixth, in certain circumst ances, a spe cial statutory scheme may exp ressly foreclos e successive litigation by nonlitigants ... if the sche me is otherw ise consistent with due proce ss. Id. (alt eratio n in o riginal). 2 26 2 27 28 Pl ai nt if fs p ro te st t hat A da ms du p lic at iv e ac ti on t es t, ev en wit h Ta yl or s p ri vi ty st an da rd r ep l aci ng t he vi rt ua l rep re se nt at io n d oc tr ine , sh ou ld n o t b e ap pl ie d he re b ec aus e, u nl ik e in Ad am s, T ay lo r, a nd ev er y ot he r c ase c it ed b y Fe de ra l Def en da nt s, 12 1 All, sav e the third exception, are obviously 2 inapplic able. 3 because there is no suggestion that Kern, Met, or SWC 4 5 6 7 The f irst exception is inapplicabl e have agr eed to be bo und b y the others acti ons. The seco nd exception requires a pre-existin g, substant ive legal re lationship, such as tha t aris ing 8 between preceding an d succeeding owners of proper ty, 9 bailees and bailors, and assignees and assignors, none of 10 which ap ply here. 11 12 Taylor , 128 S. Ct. at 2172. The four th exception applies when a nonparty assu med control of the prior litigation and then attempts to file 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 no cl ai m or i ss ue h as re ac he d fi na l ju dg me nt i n an y of t he Con so li da te d Sa lm on C ase s. Se e al s o T ah oe -S ie rr a Pr es . Cou nc il , Inc . v. T ah oe R eg l P lan ni ng A ge nc y , 3 22 F .3 d 10 64 , 10 82 (9 th C ir . 200 3) (i nd iv id ua l me mb ers o f a pr op e rty o wn er s as so ci at io n p re cl ud ed fro m br in gi ng s ub se qu ent a ct io n be c aus e th e as so ci at io n had a lr ea dy lit ig at ed t he s am e cl aim s in a n ea r lie r su it ); B ol de n v. Pen ns yl va ni a St at e Po lic e, 5 78 F .2 d 91 2 (3 d Ci r. 1 97 8) (u pho ld in g den ia l of m ot io n to i nte rv en e by F r ate rn al O rd er o f Po li ce ( FO P ) and s om e of i ts i nd iv idu al m em be rs in a ca se t o ch al le ng e t he t er ms of a fi na l co ns en t de cre e in l ig ht of ev id en ce t ha t FO P vot ed t o app ro ve e nt ry i nt o co nse nt d ec re e) ; Ya nk to n Si ou x Tr ib e v. U. S. Dep ar tm en t of H ea lt h & H um an S er vi c es, 5 33 F .3 d 63 4 (8 th Ci r. 200 8) (a ff ir mi ng d is mi ssa l of l aw su i t b ro ug ht b y Tr ib e an d i nd iv id ua l mem be r of T ri be t o re lit ig at e cl ai m s b ro ug ht t o ju dg me nt by T ri be i n pre vi ou s la ws ui t) . Pla in ti ff s ar e co rr ec t t ha t Ad am s i s d is ti ng ui sh ab le . H owe ve r, bef or e ju dg me nt i s en ter ed i n an y p oss ib ly d up li ca ti ve a cti on , th e tri al c ou rt r et ai ns t he di sc re ti on to di sm is s, s ta y, o r con so li da te the d up li ca ti ve a ct io ns. Fo r ex am p le, i n Wa lt on v . Ea to n C or p. , 56 3 F.2 d 66 , 70 ( 3d C ir . 197 7) , wh ic h A dam s qu ot ed f or t he g ene ra l ru le tha t [ p] la in ti ff s ge ner al ly h av e n o r ig ht t o ma in ta in t wo se pa ra te act io ns i nv ol vi ng t he sa me s ub je ct mat te r at t he s am e ti me in t he sam e co ur t an d ag ai ns t t he s am e de f end an t, th e Th ir d Ci rcu it app ro ve d of a d is tr ic t c ou rt s c on s oli da ti on o f tw o ne ar ly id en ti ca l law su it s br ou gh t by t he sa me p la in t iff , on i ts o wn m ot io n a nd b ef or e any j ud gm en ts h ad b ee n e nt er ed . W a lto n al so n ot ed t ha t dis mi ss al o r sta y of t he l at er -f il ed ac ti on w ou l d h av e be en p er mi ss ib le. Id . Her e, t he d is tr ic t co urt r et ai ns t h e s am e po we r to c on tr ol it s doc ke t wi th r es pe ct t o d up li ca ti ve act io ns . H ow ev er , th e q ue st io n rem ai ns w he th er t he T ayl or p ri vi ty sta nd ar d is m et i n co nne ct io n wit h th e ch al le ng ed l aws ui ts . 13 1 its own case on the same grounds. 2 determin ing whether such control was asserted, a court 3 consider s whether th e non-par ty: (1) required the 4 5 6 7 Id. at 2 173. In previous lawsuit to be filed; (2) reviewed and ap proved the comp laint; (3) p aid attorneys fees and costs ; (4) directed the appeal; (5) appeared and submitted a brief 8 as an am icus; (6) di rected the filing of the notice of 9 appeal; and (7) effe ctuated the abandonment of th at 10 appeal b y a party in the proceeding. 11 States, 440 U.S. 147 , 154 (1979). 12 13 14 15 Monta na v. United He re, the Federal Defendan ts do not su ggest this exception applies, as all cases we re independently initiated. The fift h exception does not apply because there has 16 been no judgment in any of the consolidated actio ns, so 17 it is no t possible f or any plaintiff to be reliti gating 18 through a proxy. 19 20 21 22 23 24 The sixt h exception is inapplicable because there is no succe ssive litiga tion or applicable special s tatutory scheme regarding su ccessive litigation by non-parties. The thir d exception concerns whether the non-party was adeq uately repre sented by a party with the sa me 25 interest s. 26 represen tation of an other is adequate if, at a minimum: 27 (1) the interests of the nonparty and her represe ntative 28 Ta ylor, 128 S . Ct. at 2172. 14 A party s 1 are alig ned; and (2) either the party understood herself 2 to be ac ting in a re presentative capacity or the original 3 court to ok car e to protect the interests of the nonpar ty. 4 5 6 7 Id. at 2 176. Federal Defendants c ite Tahoe -Sierra Preservation Council, Inc. v. Tah oe Regional Planning Agency, 322 F.3d 8 1064, 10 82 (9th Cir. 2003), f or the proposition that a n 9 associat ion filing s uit on behalf of its members 10 automati cally trigge rs the third exception. 11 held: 12 13 14 15 16 17 18 19 20 21 22 23 24 Tahoe Sierra One of t he relations hips that has been deemed suffici ently close to justify a finding of privity is that of a n organization or unincorp orated assoc iation filing suit on behalf of its m embers.... Of course, the organization must ade quately repr esent the interests of its individu al members i f its representation is to satisfy the due proc ess concerns articulated in Hansberr y v. Lee, 311 U.S. 32, 40 43 (1940) .... However, if there is no conflict between the organiza tion and its members, and if the organiza tion provide s adequate representation on its memb ers behalf, individual members not named in a lawsuit m ay be bound by the judgment won or l ost by their organization. Id. at 1 082 (i nternal citations omitted). Federal Defendants s uggest that the record demonstr ates only th e possibility of conflict amo ngst the 25 members of the SWC, not conflict between the orga nization 26 and its members. 27 103, ¶¶ 8-9 (S WC s m ember s do not always h ave common 28 See Declaration of Terry Erlewine, D oc. 15 1 interest s; SWC s me mbers interests do not nece ssarily 2 align ). 3 provide adequate rep resentation on its members b ehalf 4 5 6 7 Federal De fendants also suggest that SW C can given th at SWC is se eking the same de claratory and prospect ive relief s ought by its members. Federal Defendants i gnore two important issues. 8 First, S WC and its m embers, Kern and Met, specifi cally 9 disclaim having any understanding that SWC would be 10 acting i n a complete representative capacit y. 11 Met serv e different types of water users with pot entially 12 13 14 15 16 conflict ing interest s, as each water users seeks water it has cont racted for, even at the expense of other water users. [SWC] re presents onl y the common interests of its 27 m ember agenci es, not the individual interest s of just tw o of those 27 members.... As empha sized above, the State Contractors represen t only the common interests of their 27 membe r agencies, not any individual, dis tinct interest s of KCWA, M WD, or any other member agency m ay have.... [SWC] recognize[s] that they can not represen t each of their members special, individuali zed interest and are instead concerne d with prote cting the members common interest s. 18 19 20 21 22 23 25 26 27 28 SWC is repre senting only the common inter ests of its dive rse me mbersh ip: 17 24 Kern and Doc. 99 at 16, 21. Second, Federal Defe ndants fail to acknowledge th e complex reality in w hich the two member plaintiff s operate. For exampl e, Met obtains water from mul tiple 16 1 non-CVP source s, including the Colorado River, local 2 watershe ds, and wate r re- use facilities, which it mixes 3 with SWP water befor e delivery to domestic, indus trial, 4 5 6 7 and agri cultural use rs. Because of the potential ly higher l egal and con tractual priorities assigned to domestic over agricu ltural use, Met is likely to have 8 differen t, and poten tially conflicting priorities , as 9 compared to the Kern /Coalition plaintiffs, which 10 represen t primarily agricultural users in the sou thern 11 San Joaq uin Valley. 12 13 14 15 While SWC, a highly experien ced litigant , may take t he laboring oar with respect to interest s that Met, Kern, and its 25 other member s may share, S WC can not act in a representative capac ity t o 16 pursue s pecific reli ef that benefits some of its members 17 at the e xpense of ot hers. 18 pursue t heir unique and potentially d ifferi ng interest s 19 separate ly, while re lying on SWC to represent the common 20 interest s of all SWP users. 21 22 23 24 Met and Kern are entit led to Under the circumstan ces, Met and Kern are not in privity with SWC for all purp oses of the dupl icative acti on inquiry. Even if, argue ndo, t he Adams/Taylor duplicative 25 action t est were sat isfied here, the district cou rt has 26 exercise d its discre tion to consolidate, rather t han 27 dismiss, the challen ged complaints. 28 17 This approac h, which 1 is artic ulated in de tail in the scheduling order and 2 which ha s been follo wed in the parall el Del ta Smelt 3 Consolid ated Cases, 1:09- cv-00407, ad equately pre serves 4 5 6 7 the part ies unique interests, and conserves part y and judicial resources. Federal Defendants have not demonstr ated any pre judice will result from maintaining 8 these ca ses as conso lidated actions. 9 being ma de to elimin ate duplication and promote p arty and 10 judicial economy. 11 simultan eously in co nsolidated cases rather than 12 The moti on to dismiss the Kern/Coalition and Met 14 16 I t is preferable to do so separate ly, in six c ases. 13 15 Every effor t is complain ts as duplic ative is DENIED. C. 17 Motion t o Dismiss St ate Water Contractor s Compla int For Lack of Standing . 18 Alternat ively, Feder al Defendants contend that i f 19 the dire ct participa tion of the KCWA Plaintiffs a nd MW D 20 is neces sary to prot ect their asserted claims and 21 requeste d relief ... , then SWC lacks standing and must be 22 dismisse d. 23 24 25 26 Doc. 80-2 at 10. An org anizat ion can establis h standing t o sue on behalf of its indivi dual members if: (1) its members would otherwise have stand ing to sue i n their own right; (ii) the interests it seeks to 27 protect are germane to the organization s purpose ; and 28 (iii) ne ither the cl aim asserted nor the relief r equested 18 1 requires the partici pation of individual members in the 2 lawsuit. 3 432 U.S. 333, 342-43 (197 7); United Union o f Roof ers, 4 5 6 7 Hunt v. Wa shing ton State Apple Ad ver. Comm n , Waterpro ofers, and A llied Trades No. 40 v. Insura nce Corp. of Am., 919 F.2d 1398, 1400 (9th Cir. 1990). It is un disputed tha t both Kern and Met are 8 individu al member ag encies of SWC. 9 maintain that, under Hunt s third prong, in orde r for 10 SWC to h ave standing to sue on their behalf, the 11 particip ation in thi s lawsuit of the KCWA Plainti ffs or 12 13 14 15 MWD cann ot be necess ary to the prosecution of SWC s claims o r its reques ted relief. It appea rs, however, that the KCWA Plaintiffs and MWD do consider their direct participation necessar y. After SW C filed suit, for example, both fil ed their own laws uits, which, as detailed above, asse rt substantively identical claims a nd seek the same relief sought by SWC. Moreover , the KCWA P laintiffs and MWD have each engaged their own co unsel of record to prosecute these (o verlapping) claims. If their direc t particip ation is nec essary, as these actions suggest, SWC cannot establish the third prong necessar y to show as sociational standing t hat neither its claims a sserted nor its relief requeste d requires p articipation of individual members and it must be dismis sed. 17 18 19 20 21 22 23 24 26 27 28 Doc. 80-2 at 10 . Federal Defendants argument continues: 16 25 Federal Defen dants Id. at 1 0-11. Federal Defendants m isapply the scope of Hunt s t hird prong. Hunt i tself sheds little light on the applicat ion 19 1 of this element. 2 heavily upon W arth v. Seldin, 422 U.S . 490 (1975) . 3 Warth, t he Sup reme Court rejected an associ ation s 4 5 6 7 Ho wever, Hunt s three-par t test reli es In argument that it had standing to bring damages cl aims on behalf o f individual members not common to the e ntire membersh ip, nor shar ed by all in equal degree. Id. at 8 515. 9 injury m ay have been suffered is peculiar to the 10 individu al member co ncerned, and both the fact an d extent 11 of injur y would requ ire individualized proof. 12 13 14 15 To the contrar y, Warth conclude d that whatever 515-16. Id. at Thus , to obtain relief in damages, each member of [the association] who clai ms injury as a result of responde nt practice s must be a party to the suit , and 16 [the ass ociation] ha s no standing to claim damage s on his 17 behalf. 18 Id. at 516. Here, wh ile Kern and Met have the right to separa tely 19 sue to p rotect their own, unique interests, their 20 particip ation is not a legal prerequisite to SWC s 21 22 23 24 maintena nce of its c hallenge to the 2009 Salmon B iOp on behalf o f the common interests of its members and its request for appropri ate injunctive relief. As SW C 25 undisput ably satisfi es the first two Hunt requirements -- 26 (1) its members woul d otherwise have standing to sue in 27 their ow n right, as each is injured by Defendants 28 20 1 actions, and (2) the interests SWC seeks to prote ct are 2 germane to its organ izational purpose, preserving 3 contract ual and related water rights and supplies -- S WC 4 5 6 7 has orga nizational s tanding to pursue these commo ninterest claims. alternat ive basis fo r standing in its own right. The moti on to dismis s for lack of standing is DEN IED. 8 9 10 11 12 13 14 It is not necessary to address SWC s D. Motions to Str ike. Denial o f the motion to dismiss moots two of the related motions to s trike, which concern only the merits of the m otion to dis miss. Doc. 92, 97. The thir d motion to strike, filed by the Coalitio n, 15 concerns Federal Def endants request in its reply that 16 denial o f their moti on to dismiss should be witho ut 17 prejudic e, so that F ederal Defendants can pursue 18 19 20 21 discover y into Coali tion s membership. Doc. 114 at 6. The Coal ition moves to strike this argument becau se it was rais ed for the f irst time in reply. Do c. 125 . In 22 the alte rnative, the Coalition requests leave to file a 23 surreply addressing this argument, which has been lodged 24 as Attac hment A to t heir motion to strike. 25 Although advanced fo r the first time in a reply b rief, 26 27 28 Doc. 125-2. Federal Defendants request for a den ial of its motion without prejudice pe nding discovery is not unexpe cted and 21 1 will be considered. 2 the Coal ition s surr eply will also be considered. 3 motion t o strike is DENIED. 4 5 6 7 Because it constitutes new m aterial, The The meri ts of the ar gument and the surreply are easily r esolved. As a matter of law, if the cour t determin es at any t ime that it lacks subject ma tter 8 jurisdic tion, the co urt must dismiss an action. 9 R. Civ. P. 12(b)(1). 10 defendan t to move to dismiss under this rule on m ultiple 11 occasion s, for examp le, if new evidence is discov ered. 12 13 14 15 See F ed. It is perfectly permissible for a See Arba ugh v. Y & H Corp., 5 46 U.S. 500, 506 (2006) ( The ob jection that a federal court lacks subjec t-matter jurisdic tion ... may be raised by a p arty, or by a cou rt 16 on its o wn initiativ e, at any stage in the litiga tion, 17 even aft er trial and the entry of judgment. ). 18 Accordin gly, denial of a Rule 12(b)(1) motion is 19 inherent ly without p rejudice. 20 21 22 23 24 As for t he Federal D efendants right to obtain discover y from the C oalition, no such discovery m otion is before t he court at this time. Ordinarily, preli minary discover y directed a t a parties standing is perm itted. 25 The matt er was not r esolved at the hearing on the se 26 motions. 27 28 22 1 IV. CONCLUSION 2 For the reason s set forth above: 3 (1) Fede ral Defendan ts motion to dismiss the 4 5 6 7 8 9 10 11 12 13 Kern/Coa lition and Met co mpla ints as duplicative is DENIED; (2) Fede ral Defendan ts motion to dismiss SWC s complain t for lack o f standing is DENIED; (3) Kern /Coalition a nd Met s motions to strike portions of the moti on to dismiss are DENIED AS M OOT; (4) The Coalition s motion to strike portions of Federal Defendants reply brief is DENIED, but th e Coalitio n s surreply will be considered. 14 15 16 17 18 SO ORDER ED Dated: J anuary 12, 2 010 /s/ O liver W. Wan ger Oliver W. Wang er United States Distri ct Judge 19 20 21 22 23 24 25 26 27 28 23
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