Coalition for a Sustainable Delta et al v. United States Fish and Wildlife Service et al, No. 1:2009cv02022 - Document 100 (E.D. Cal. 2009)
Court Description: ORDER granting 79 Motion to Sever, signed by Judge Oliver W. Wanger on 11/17/09. (Coffman, Lisa)
Download PDF
<![CDATA[
Coalition for a Sustainable Delta et al v. United States Fish and Wildlife Service et al Doc. 100 1 2 3 4 UNITED STATES DISTRI CT CO URT 5 FOR THE EASTERN DISTRICT OF C ALIFORNIA 6 7 8 COALITIO N FOR A SUST AINABLE DELTA, e t al. 9 MEMORANDUM DEC ISION AND ORDER GRANTING FEDER AL DEFENDANTS’ MO TION F OR SEVERENCE (DOC . 79) Plaint iffs, 10 11 1:09-CV- 480 OWW GSA v. 12 UNITED S TATES FISH A ND WILDLIFE SERVICE, et al., 13 Defend ants. 14 15 I. INTRODUCTION 16 17 18 19 Plaintif fs, Coalitio n for a Sustainable Delta and Kern Cou nty Water Ag ency, filed a second amended complain t (“SAC”) on July 23, 2009, Doc. 75, adva ncing six grou ps of claims : 20 21 22 • Claims 1 -5 against t he U.S. Fish & Wildlife Servi ce (“FWS”). These clai ms challenge FWS’s December 1 5, 23 2008 Bio logical Opin ion (“2008 BiOp”) for Coordin ated 24 Operatio ns of the Ce ntral Valley Project and Stat e 25 Water Pr oject under the Endangered Sp ecies Act 26 (“ESA”) and the Admi nistrative Procedure Act (“AP A”). 27 SAC ¶¶ 7 5-127. Thes e cla ims were consolida ted with 28 1 Dockets.Justia.com 1 claims f rom related cases challenging the 2008 Bi Op 2 in the D elta Smelt C onsolidated Cases, 1:09-cv-00 407. 3 • 4 Agency ( “EPA”). 5 The se claims allege that EPA register ed 16 active pesticide ingredients under the 6 Federal Insecticide, Fungicide, and Rodenticide A ct 7 (“FIFRA” ) in violati on of the ESA. 8 9 Claims 6 -7 against the U.S. Environmental P rotect ion • SAC ¶¶ 128-58 . Claims 8 -10 against the Maritime Admi nistration 10 (“MARAD” ). 11 relating to MARAD’s alleged maintenance of Nation al 12 Defense Reserve Flee t vessels at Suisun Bay and t he 13 preparat ion of a man agement plan for disposal of non- 14 retentio n vessels. 15 16 These cl aims allege ESA violations • SAC ¶¶ 155-76. Claims 1 1-13 a gainst FWS. These claims all ege ESA 17 violatio ns relating to FWS’s provision of funding to 18 the Cali fornia Depar tment of Fish and Game under the 19 Federal Aid in Sport Fish Restoration Act. 20 21 SAC ¶ ¶ 177-95 • 22 Claims 1 4-16 a gainst the Federal Emergency Manage ment Agency ( “FEMA”). 23 Th ese claims allege ESA violati ons relating to FEMA’s a dministration of the National 24 25 Flood In surance Prog ram in the Sacramento-San Joaquin 26 Delta. 27 28 • SAC ¶¶ 196-221. Claims 1 7-18 a gainst the U.S. Army Corps of Engineers 2 1 (“Corps” ) and FWS. 2 violatio ns by the Co rps and FWS relating dredging 3 4 5 6 7 These claims allege ESA and A PA activiti es at the Po rt of Stockton. SAC ¶¶ 222-40. On Augus t 14, 2009, Federal Defendants moved to s ever and dism iss, without prejudice, Claims 6-7 against EPA , Claims 8 -10 against MARAD, and claims 14-16 against FE MA 8 from the remaining c laims against FWS and the Cor ps 9 pursuant to Fed. R. Civ. P. 20(a) and 21. 10 opposed on September 14, 2009, Doc. 87, and Defen dants 11 replied on September 25, 2009, Doc. 91. 12 13 14 15 16 Plaint iffs The Corp s and FWS se parately moved to dismiss Cla ims 11-13 and 17-1 8 for lack of subject matter jurisdiction Doc. 82. 2009. That motio n was set for hearing on Nove mber 23, H owever, on O ctober 27, 2009, the parties 17 stipulat ed to the dismiss al of Claims 11-13 and 17-18. 18 Doc. 96. 19 dismiss Claims 11-13 and 17-18, as th ose claims a re no 20 21 22 23 24 FWS and th e Corps also withdrew their m otion to longer p art of this litigation. See Doc. 9 7. Th e parties stipulated t o the dismissal of Plaintiffs ’ claims against EPA in Count s 6-7 of the SAC relating to 13 of the 16 c hallenged pe sticide registration decision s, as 25 well as part of Plai ntiffs’ claims relating to on e 26 addition al pesticide registration decision. 27 28 See Doc. 96. Plaintif fs’ lawsuit now consists of t he fol lowing 3 1 2 claims: • 3 127). 4 T hese claims have been consolidated with related claims in th e Delta Smelt Consolidated Ca ses, 5 1:09-cv- 00407. 6 7 Claims 1 -5 challengi ng FWS’s 2008 BiOp (SAC ¶¶ 75- • Claims 6 -7 challengi ng EPA’s registration of thre e 8 active p estici de ing redie nts (propanil, SAC ¶148; 9 cypermet hrin, SAC ¶1 52; and permethrin based on t he 10 alleged effects on l isted salmonids only, SAC ¶15 3). 11 These cl aims are rel ated to another pending lawsu it, 12 Center f or Biologica l Diversity v. EPA, 3:0 7-cv-02794 13 (N.D. Cal. filed May 30, 2007)(“CBD”) . 14 That case involves a challenge to EPA’s registr ation or re- 15 registra tion of 74 p esticide active ingredients, and 16 17 their al leged effect s on eleven listed species, 18 includin g delta smel t. 19 20 21 22 23 24 • Claims 8 -10 against MARAD (SAC ¶¶ 155-76). These claims a re related t o another pending case, Arc Ecology v. MARAD, 2:07-cv-023 20 GEB GGH (E.D. Cal. filed Oc t. 29, 2007) . Arc Ecology is a challenge to MARAD’s maintenance and disposal plan for the non- 25 retentio n of vessels in Suisun Bay under th e National 26 Environm ental Policy Act (“NEPA”), the Resource 27 Conserva tion and Rec overy Act (“RCRA”), Californi a’s 28 4 1 Hazardou s Waste Cont rol Law, and the Clean Water Act 2 (“CWA”), but not the ESA. 3 4 • Claims 1 4-16 a gainst FEMA (SAC ¶¶ 196-221). See Doc. 96. 5 6 7 8 9 10 11 12 13 14 15 16 17 II. STANDARD OF RE VIEW The join der of claim s against multiple defendants in a single action is g overned by Federal Rule of Ci vil Procedur e 20(a), whi ch provides that “persons ... may be joined i n one action as defendants if”: (A) any right to rel ief is asserted against them jointly, severally, or in the alternative with respect to or arisin g out of the same transact ion, occurre nce, or series of transact ions or occu rrences; and (B) any question of law or fact common to all defendan ts will aris e in the action. Fed. R. Civ. P. 20(a )(2)(emphasis added). The permissive 18 joinder rule “is to be construed liberally in ord er to 19 promote trial conven ience and to expedite the fin al 20 determin ation of dis putes, thereby preventing mul tiple 21 lawsuits .” 22 23 24 25 26 Le ague to Save Lake Tahoe v. Ta hoe Reg’l Planning Agency, 558 F.2d 914, 917 (9th Cir. 1997). The purpose of Rule 20(a ) is to address the “broadest possible scope of ac tion consistent with fairness to the parties; joinder of claims, parties and remedies is 27 strongly encouraged.” United Mine Workers of Am. v. 28 Gibbs, 3 83 U.S . 715, 724 (1966). 5 1 2 3 4 5 6 7 “The fir st of these, the common question test, is usually easy to sati sfy.” Bridgepoat Music , Inc. v. 1 1C Music, 2 02 F.R .D. 229, 231 (M.D. Tenn. 2001 )(citi ng 4 James Wm . Moore et a l., Moore’s Feder al Practice, ¶20. 04 (3d ed. 1999)). more for bidding. “Th e transactional test, however , is It requires that, to be joined, parties 8 must ass ert rights, or have rights asserted again st them, 9 that ari se from rela ted activities-a transaction or an 10 occurren ce or a seri es thereof.” 11 omitted) . 12 13 14 15 16 Id. (inte rnal c itati ons Because t his test “does not lend itsel f to bright l ine rules, i t generally requires a case b y case analysis .” Id . If the t est for perm issive joinder is not satisfi ed, a court, in its discretio n, may sever the m isjoin ed 17 parties, so long as no substantial right will be 18 prejudic ed by the se verance. 19 F.3d 134 8, 1350 (9th Cir. 1997). 20 21 22 23 24 Coughli n v. Rogers, 130 In such a case the court ca n generally dismiss all but the first nam ed plaintif f without prejudice to the institut ion of new, separate lawsuits by the dropped plaintiffs “agai nst some or all o f the presen t defendants based on the cla ims or 25 claims a ttempted to be set forth in the present 26 complain t.” I d. 27 28 6 1 2 3 4 5 6 7 8 III. ANALYSIS. Federal Defendants m ove to se ver from the 2008 OCAP BiOp cla ims (Claims 1-5), the remaining portions of Claims 6 and 7 again st the EPA’s registrati on of certa in pesticid e active ing redients, Claims 8-10 against MARA D concerni ng maintenan ce and disposal of vessels at Suisun Bay, and Claims 14-16 challenging FEM A’s ad ministratio n 9 of the N ational Floo d Insurance Program in the De lta. 10 Doc. 79. 11 do not a rise out of the same transaction or occur rence as 12 the BiOp claims, (2) joinder does not promo te convenience 13 14 15 16 17 Federal De fendants argue (1) that these claims or effic iency, and ( 3) the misjoined claims shoul d be dismisse d without pr ejudice. Id. At the h eart of Plai ntiffs’ argument for jo inder is the undi sputed propo sition that a “long list of 18 stressor s” affect th e delta smelt. 19 at 189, 203. 20 the clai ms joined in this suit are “logically rel ated” 21 22 23 24 25 See 2008 Smel t BiO p Plaint iffs maintain, therefore, tha t all of because they “all re late[] to the decline of the delta smelt an d harm to it s designated critical habitat , all involve violations o f the [ESA], and share questi ons of both law and fact in common, and all would result in 26 consulta tion with [F WS],” if resolved in Plaintif fs’ 27 favor. 28 Doc. 87 at 2 . 7 1 2 3 4 A. Do All o f the Claims Arise Out of the Same Transact ion Or Occur rence? The firs t requirement of permissive joinder is th at any join ed claims “aris[e ] out of the same transa ction , 5 occurren ce, or serie s of transactions or occurren ces.” 6 Fed. R. Civ. P. 21(a )(2). 7 term “tr ansaction or occurrence” to mean “similar ity in 8 the fact ual backgrou nd of a claim.” 9 10 11 12 13 The Ninth Circuit defines the Bautista v. Los Angeles County, 216 F.3d 837, 842-43 (9th Cir. 2000)(ci ting C oughlin, 130 F.3d at 13 50). Claims that “‘arise out of a sys tematic pattern of events’ ar ise f rom the same transaction or occurrence.” Id. Plaintiffs 14 assert t hat the vari ous claims against Federal De fendants 15 arise ou t of the sam e transaction or occurrence b ecause 16 “the thr ust of [each ] claim ... is that each of t he 17 federal agency’s act ions or approvals has contrib uted to 18 19 20 21 the decl ine of the d elta smelt.” Doc . 87 a t 2. The case law provides some guidance. In Cou ghlin, for example, 49 plaintif fs alleged that the Immigrati on and 22 Naturali zation Servi ce (“INS”) unreasonably delay ed 23 plaintif fs’ separate applications and petitions i n 24 violatio n of t he APA and the U.S. Constitution. 25 at 1349. 26 27 28 130 F.3d The Ninth Circuit affirmed the district court’s conclusi on that the claims did not satisfy the “s ame transact ion” require ment: 8 1 The firs t prong, the “same transaction” requirem ent, refers to similarity in the factual backgrou nd of a clai m. In this case, the basic connecti on among all the claims is the alleged procedur al problem o f delay. However, the mere allegati on of genera l delay is not enough to create a common tran saction or occurrence. Each Plaintif f has waited a different length of time, sufferin g a differen t duration of alleged delay. Furtherm ore, the del ay is disputed in some instance s and varies from case to case. And, most imp ortantly, th ere may be numerous reasons for the alleged dela y. Therefore, the existence of a com mon allegati on of delay, in and of itself, does not suf fice to create a common transact ion or occur rence. 2 3 4 5 6 7 8 9 10 Id. at 1 350. In contr ast, in Bautista, whe re each member of a 11 12 large gr oup of plain tiffs lost his or her job at the same 13 time due to the same merger, the clai ms arose fro m the 14 same tra nsaction or occurrence; i.e., the merger that 15 caused j obs to be lo st. 16 17 18 19 20 216 F.3d at 843. Similarly, in Mosley v . Gen. Motor s Corp., 497 F.2d 1330, 1333 (8th Cir. 197 4), on which Plaintiffs rely, claim s brou ght b y ten plai ntiffs alleg ing they had been injured by a company- wide policy designed to discr iminate against 21 African Americans “ar[o]se out of the same series of 22 transact ions or occu rrences,” a racially discrimi natory 23 workplac e. Id . at 1333-34. 1 24 25 26 27 28 1 Plainti ffs emphasiz e that Mosely applied a “logi cal relation ship” test t o Rule 20(a) permissive joind er. Mosely, an Eighth Ci rcuit case, looked to S upreme Cour t’s interpre tation of “t ransaction or occurrence” in the related context of R ule 13 (counterclaims). Moore v. New York Cot ton Exchange, 270 U.S . 593, 610 (1926), h eld that “‘Transa ction’ is a word of flexible meaning. It may 9 1 2 3 4 5 6 7 Federal Defendants’ also rely on Golden Sco rpio Corp. v. Steel Horse Bar & Grill, 5 96 F. Supp. 2d 1282, 1285 (D. Ariz . 2009), whi ch held that claims alleging multiple defendan ts infringed upon a trademark were improp erly joined u nder Rule 20 (a) because the circums tances of e ach infringe ment were di fferent. Despite the fact th at the 8 same tra demark was i nvolved, misjoinder existed b ecause 9 the clai ms of unlawf ul activity against one defen dant 10 were “se parate and d istinct from the allegedly im proper 11 acts of any of the other defendants.” 12 13 14 15 16 Id. Similarly, in Movie Sy stems Inc. v . Abel, 9 9 F.R.D. 129 (D.C. Minn. 1983), a distributor of television programs filed 18 similarl y worded com plaints, each naming approxim ately 100 defe ndants, for a total of almost 1,800 defendants 17 accused of pirating its television programming. 18 claims w ere severed because “[t]here is no claim that the 19 alleged pirating ... was done other than independ ently by 20 21 22 23 24 25 26 27 28 each of the 1795 def endants.” The Id. at 130. Plaintif fs attempt t o distinguish Gol den Scorpio, Movie Sy stems, and a similar unpublished case, In Re comprehe nd a series of many occurrences, dependin g not so much upo n the immedi ateness of their connection a s upon their lo gical relati onship.” Mosley reasoned tha t “[t ]he analogou s interpreta tion of the terms as used in Rule 20 would pe rmit a ll reasonably related claims for relief by or again st different parties to be tried in a sin gle proceedi ng.” Id. at 1333. Plaintiffs poin t to n o analogou s cases that have fou nd any “logical” or “reasona ble” relatio nship between claims such as those in the SAC. 10 1 DIRECTV, Inc., 2004 WL 2645971 (N.D. Cal. July 6, 2004 ), 2 on the g round that t hese claims concerned torts o r 3 4 5 6 7 alleged violations o f statutory rights “such that only concerte d action by Defen dants ... would sa tisfy the logical relation sta ndard.” Id. at 16. In contr ast, Plaintif fs argue, th e SAC alleges “each Defendant ’s 8 action i s contributi ng to the decline of the delt a smelt 9 and the ecological h ealth of the Delta itself.” 10 Plaintif fs’ su ggestion is that claims may meet th e 11 “transac tion or occu rrence” requirement merely be cause 12 13 14 15 16 each, di stinct feder al action adverse ly imp acts t he de lta smelt. As in Coughlin, w here a “basic connection ” between the claims w as insufficient, each allegedly unlawful agency acti on affecting the smelt is lar gely 17 distinct from the ot hers. 18 evaluati on of the co ordinated operation of the Ce ntral 19 Valley P roject (“CVP ”) and State Water Project (“ SWP”), 20 21 22 23 24 Claims 1-5 conce rn FWS ’s one of t he most comp lex water storage and delivery systems in the world . Claims 6 -7 challenge the registration of pesticid es for use in the Delta region, each of which has co mplex 25 chemical interaction s with the environment. 26 of pesti cides used i n the Delta has no relationsh ip to 27 coordina ted Project operations. 28 11 The effect It may have a ne gative 1 effect o n the smelt, but whether this was inadequ ately 2 consider ed in the Bi Op (or in the context of MARA D or 3 4 5 6 7 FEMA’s c hallenged de cisions) is entirely determin able without examining th e efficacy of the registration. Claims 8 -10 address the storage and disposal of s hips within t he Delta, a type of agency action claimed to 8 result i n discharges of toxic rust, paint, and ot her 9 substanc es. 10 the ship retentions and disposals. 11 Consolid ated Delta S melt Cases does not depend on the 12 13 14 15 16 17 18 19 20 21 22 23 24 Another case is addressing the lawfu lness of R esolut ion of the lawfulne ss of EPA’s, FEMA’s, or MARAD’s actions. Rather, it depen ds on whethe r FWS failed to evaluate the effects of such actions on t he smelt as related to the Pr oject s’ coordina ted operatio ns, if such evidence exists i n the Smelt Bi Op administr ative record. Claims 1 4-16 c oncern admi nistration of the National Flood In surance Prog ram, which implicates land us e and developm ent issues i n and around the Delta, yet a nother, entirely different s ubject matter from Proj ect operatio ns. A lthough these claims share the “basic connecti on” that eac h federal action occurs in th e del ta 25 watershe d and causes adverse impacts to the delta smel t 26 in some way, the age ncy actions themselves are di stinc t 27 28 12 1 from coo rdinated Pro ject operations. 2 2 developm ent effects can be considered without dec iding 3 whether the actions can lawfully continue. 4 5 6 7 Such land use an d Plaintif fs suggest a n alternative reason why permissi ve joinder i s appropriate here, arguing that F WS “as the common consu lting agency” has an obligati on to 8 “address the underly ing nexus of stressors on the Delta 9 ecosyste m.” 10 “stresso rs” affect t he delta smelt and its critic al 11 habitat. 12 13 14 15 16 17 I t is undisputed that a wide variety of For the pu rpose s of this motion, it is presumed true tha t each of th e challenged government actio ns (i.e., E PA’s pestici de approvals, MARAD’s mainten ance and disposal of vessels at Suisun Bay, and FEMA’s administ ration of th e National Flood Insurance Pr ogram in the Delt a), operate as stressors to the delta sme lt. 18 Plaintif fs are corre ct that, under the ESA, Feder al 19 Defendan ts are oblig ated to consider the effects of any 20 21 22 23 24 25 26 27 28 proposed federal act ion in light of the environme ntal baseline , 16 U.S.C. § 1536; 50 C.F.R. § 402.02, a nd th at any past and current federal actions form part of the 2 Plainti ffs attempt to distinguish Coughlin on the ground t hat joinder was not permitted there becau se the general allegations of delay were insufficient. Here, in contrast , the SAC specifi cally allege s how each challeng ed federal a ction contributes to the decl ine of the smel t. But, spe cificity was not the central issue in Coughlin . Rather, t he focus was on the differing circumst ances underl ying each alleged defendant’s situatio n. Se e 130 F.3d at 1350. 13 1 environm ental baseli ne, 50 C.F.R. § 402.02 (“The 2 environm ental baseli ne includes the past and pres ent 3 4 5 6 7 impacts of all Feder al, State, or private actions and other hu man activiti es in the action area.” ). FWS must evaluate individual federal action under the ESA in light of the e nvironmental baseline, which analysis mus t 8 consider all stresso rs impacting the delta smelt. 9 also tru e that a bod y of scientific literature po ints 10 toward a “new paradigm” in which the Delta should be 11 understo od and manag ed as an integrated system. 12 13 14 15 16 It is Undoubte dly, in unde rstanding and evaluating each individu al activity, all others must be considere d. Neverthe less, each a ctivity is separate and disti nct, and plaintif fs poi nt to no statute, regulation, guidance, or 17 other so urce of lega l authority that required FWS to do 18 more tha n consider t he environmental baseline and all 19 then-exi sting conditions that jeopardized t he del ta sm elt 20 21 22 23 24 and adve rsely affect ed its critical habitat. FWS, as the consulti ng agency un der the ESA, does not “manage ” the complain ed-of activities. The ESA only requires that FWS evaluate the impacts on listed species of the eac h 25 particul ar fed eral a ction in light of other , known 26 stressor s. 27 occurren ce that must be evaluated in light of the others. 28 Each activity is a separate tra nsacti on or 14 1 2 3 4 5 6 7 The dist rict court’s holding in Prese rve Ou r Island v. U.S. Army Corps o f Eng’rs, 2009 WL 2511953 (W. D. Wash. Aug. 13, 2009), does not require FWS to manage al l stressor s on a parti cular species in a coordinate d manner. Plaintiffs in Preserve Our Island allege d tha t the issu ance of a pe rmit by the Corps for the 8 construc tion of a fa cility on the shore of an isl and in 9 Puget So und violated NEPA and the ESA. 10 ESA and NEPA reviews of the project insufficient on 11 numerous grounds, th e district court concluded: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 After finding the Which ra indrop cause d the flood?” With those closing words (and d ue credit to the author), plaintif fs at oral a rgument expressed the central issue here. No single project or human activity has caused the depletion of the salmon runs, th e near-extin ction of the SR Orca, o r the general degradation of the marine environment of Puget So und. Yet eve ry project has the potential to incre mentally inc rease the burden upon the species and the Soun d. Human development will always h ave some imp act on the surrounding environm ent. The Cou rt fully recognizes the desirabi lity and eco nomic necessity of industri al progress in order for a community to flourish . However, under the National Environm ental Policy Act and the Endangered Species Act, it is t he federal agencies’ obligati on to ensure that this progress does not cause ir reversible h arm to the environment. Thus, NE PA provides a mandate to the agencies “to cons ider every s ignificant aspect of the environm ental impact of a proposed action”, and “to info rm the publi c that it has indeed consider ed environme ntal concerns in its decision making proce ss.” Baltimore Gas & Elec. Co. v. N atural Res. Def. Council, Inc., 462 U.S. 87, 97 ( 1983). It is then this Court’s role to ensure t hat the agen cies have taken that 15 1 2 3 4 5 6 7 8 9 10 11 requisit e “hard look ” at the environmental conseque nces for the proposed project. Metcalf v. Daley , 214 F.3d [ 1135,] 1141 [(9th Cir. 2000)]. Having revie wed the record, the Court finds th at hard look at environmental conseque nces lacking . Id. at * 20. This gen eral languag e from Preserve Our Isl and do es not esta blish the re view standard Plaintiffs seek . Preserve Our Island did not address t he iss ue of joind er, nor does it suggest that the hard look at the age ncy action s ubsumes othe r federal actions that impact the 12 species, but are not the subject of the BiOp. 13 Preserve Our Island did not involve m ultipl e federal 14 actions or address a ny other issue presented here. 15 Preserve Our Island stands for is tha t FWS must take a 16 17 18 19 20 Li kewise, Wh at hard loo k at the coo rdinated CVP-SWP operat ions change s and thei r impact on listed species. The addition al complain ed of action s may well be within the environm ental baseli ne and subject to close scrut iny and 21 analysis , but reques ts for relief regarding these other 22 actions are not reas onably part of the relief sou ght in 23 the Cons olidated Del ta Smelt Cases, to invalidate the 24 BiOp and to cause it to be reissued by FWS. 25 26 27 28 The clai ms against E PA, M ARAD , and FEMA are not part of the s ame transact ion or occurrence as the coordinat ed Project operations in the Consolidate d Delt a Smelt Cas es. 16 1 Each act ion agency i s separately charged with a d uty to 2 ensure i ts own actio ns do not jeopardize the delt a sme lt 3 4 5 6 7 and/or i ts critical habitat. Other than requirin g evaluati on of impact s of other federal agency act ion in defining an accurate and comprehensive environmen tal baseline , the law do es not require joinder in the same 8 case of all federal actions that oper ate as stressors 9 upon the smelt to de cide if such actions are unla wful or 10 should b e abated. 11 12 13 14 15 16 17 18 B. Do the C laims Involv e the Same Questions of Law o r Fact? “[T]he m ere fact tha t all Plaintiffs’ claims arise under th e same gener al law does not necessarily establish a common question of law or fact.” 1351. Coughli n, 130 F.3d W here claims require significant “individu alized attentio n,” they do not involve “common questions of law 19 or fact. ” 20 unrelate d actions by different agencies that have 21 differen t effects: 22 23 24 25 26 Id. insuranc e, etc. Each set of claims in the SAC alleges pesticides, vessel storage, f lood Alt hough the claims share some f actual connecti on in that e ach federal action is alleged to have contribu ted to the d ecline of the delta smelt, determin ing and potentially remedying the lawfulness o f 27 each age ncy action w ill require review of vastly 28 divergen t informatio n and consequences, which do no have 17 1 common f actual or le gal issues. 2 involve common quest ions of law or fact. The claims do no t 3 4 C. Would Se verance Prejudice a Substantial Right? 5 Where th e test for p ermissive joinder is not 6 satisfie d, a court m ay, in its discretion, sever the 7 misjoine d parties as long as no substantial right would 8 be preju diced by the severance. 9 10 11 12 13 Coughlin , 130 F.3d at 1350. See Fed. R. Civ. P. 2 1; Plaintiffs do not ha ve a right to force the F ederal Defendants to take action against all the alle ged stressors on the Delta smelt in a single l awsuit, give n the resulting complexity, 14 dissimil arities, and delay that will attend such 15 litigati on. 16 severanc e will preju dice any of their substantial rights 17 as each alleged stre ssor can be examined in the 18 19 20 21 P laintiffs have not esta blished that Consolid ated Delta S melt Cases to determine their separate and combine d effect on the species and i ts habitat, if th e evidence to do so is in the record. 22 Continue d joinder of other agency action claims m ay 23 unduly c omplicate an d delay the smelt cases, whic h the 24 parties have sought to expedite. 25 26 27 28 D. Would Jo inder Serve the Purposes of Convenience and/or E fficiency? Maintain ing all of t he alleged claims in one laws uit 18 1 will be unwieldy. 2 challeng ing a single agency action is always comp lex, 3 4 5 6 7 T he docket in an APA or ESA lawsuit sometime s cons ists o f hun dred s, if not thousands of entries. Joining fo ur separate, and differ ent, a gency actions in a single case will make it unduly burd ensome to keep track of rel evant filings, motions, and 8 deadline s. 9 permissi ve joinder, keepi ng the cases separ ate is 10 preferab le for effec tive case management an d 11 administ rative effic iency. 12 13 14 15 16 Even if these claims had met the test for Plaintif fs are incor rect that all four clai ms will involve a single adm inistrative record and/or rel ated discover y. As a gen eral rule, judicial review of agency action i s limited to the “whole record or those o f it 5 U.S.C. § 706. 3 17 cited by a party.” 18 agency a ction will h ave a separate administrative record. 19 Although there may b e some overlap if similar inf ormation 20 21 22 23 24 25 26 27 28 Each s eparat e about th e smelt was before each agency at the tim e of its decision (or non-decision ), each record wil l incl ude extensiv e, unique, u nrelated information about th e 3 Washing ton Toxics C oal. v. EPA, 413 F.3d 1 024, 1 034 (9th Cir . 2005), hel d that the APA’s “final agenc y action” requirement did not apply to cases brough t under the ESA’ s citizen su it provision because that pro visio n contains its own wai ver of sovereign immunity. Washingt on Toxics does no t address the scop e and standard of revie w, which is undisputably governed by the APA. Tribal V illage of Ak utan v. Hodel, 869 F.2d 1185, 1193 (9th Cir . 1988) . 19 1 differen t agency act ion in question. 2 discover y is availab le at all, it is unlikely to be 3 4 5 6 7 8 extensiv e, as extra- recor d evidence is disc ourage d in administ rative revie w cas es. Southwest Cent er for Biologic al Diversity v. United States Forest Serv ice, 100 F.3d 144 3, 1450 (9th Cir. 1996). E. 9 10 11 12 13 14 Moreover, i f Should t he Misjoined Claims Be Severed and Allowe d to Proceed Separately o r Should they be Dismissed Without Prejudice? Rule 21( a) pro vides that misjoinder is “not a gro und for dism issing an ac tion.” Fed. R. Civ. P. 21. “On motion o r on its own , the court may at any time, on just terms, a dd or drop a party. The court may also s ever any 15 claim ag ainst a part y.” Id.; see also Direc TV, In c. v. 16 Leto, 46 7 F.3d 842, 845 (3d Cir. 2006) (upon a finding of 17 misjoind er, a court “has two remedial options: (1 ) 18 misjoine d parties ma y be dropped ‘on such terms as are 19 20 21 just’; o r (2) any claims against misjoined partie s ‘ma y be sever ed and proce eded with separat ely.”). Here, Fe deral Defend ants suggest that the appropr iate 22 23 course o f action is dismissal of all claims again st all 24 Defendan ts, except t he first one named in the cap tion to 25 the Comp laint. 26 21. 27 28 This is an accepted practice unde r Rule See Direc TV v. Armellino, 216 F.R.D. 2 40, 24 1 (E.D.N.Y . 2003)(dism issing without prejudice all claims 20 1 against all but the first named defendant). 2 Defendan ts argue dis missal without prejudice is 3 4 5 6 7 Fede ral appropri ate here “be cause this case is at the ver y early stages o f litigation and no substanti ve prejudice would result.. ..” Doc. 79 at 10. Here, di smissal woul d be wasteful of the parties’ and 8 judicial resources. 9 and judi cial resourc es have been invested into re viewing 10 the clai ms against a ll defendants. 11 to permi t each set o f claims to proceed as a sepa rate 12 13 14 15 16 The SAC has been filed and s erved, It is more re asonable lawsuit, all of whic h can be managed in a coordin ated proceedi ng. T he cla ims a gainst FWS regardi ng the OCAP BiOp hav e already be en consolidated with the othe r del ta smelt ca ses. The cl aims against EPA, MARAD, and FEMA 17 shall be severed and assigned three n ew cas e numb ers. 18 Because there are li nkages between th e clai ms, the thr ee 19 new case s will be co ordinated for case management 20 21 22 23 24 purposes and a singl e scheduling conference will be held in all t hree cases w ith a view to achieving judic ial efficien cy and econo my. Plaintif fs’ re quest to delay decision on severanc e 25 until th ere is furth er factual development in the se cases 26 is DENIE D, as doing so will permit the fili ng of multi ple 27 administ rative recor ds under one docket and trigg er 28 21 1 related administrati ve burdens. 2 IV. CONCLUSION 3 4 For the reasons set forth above, Federal Defendan ts’ 5 motion t o sever is G RANTED. 6 regardin g the OCAP B iOp shall be fully cons olidat ed wi th 7 the othe r delta smel t cases for all purposes incl uding 8 trial, w hile the cla ims against EPA, MARAD, and F EMA will 9 10 11 12 13 The claims aga inst F WS be sever ed and assig ned three new, consecut ive ca se numbers. The three new cases will be coordinated for case man agemen t purposes, and the captions shall indicate that eac h is coordin ated with the others. 14 15 16 17 18 SO ORDER ED Dated: November 17, 2009 /s/ Oliver W. Wanger Oliver W. W anger United State s Dist rict Judge 19 20 21 22 23 24 25 26 27 28 22
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
