Natural Resources Defense Council v. Bernhardt

Opinion

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

NATURAL RESOURCES DEFENSE Case No. 1:05-cv-01207 LJO-EPG COUNCIL, et al., ORDER GRANTING MOTION TO Plaintiffs, STAY SIXTH CLAIM FOR RELIEF; AND DENYING WITHOUT vs. PREJUDICE MOTIONS TO DISMISS SIXTH CLAIM. DAVID BERNHARDT, Acting Secretary, U.S. Department of the Interior, et al.,

ECF NOS. 1323-24, 1381-82 Defendants.

SAN LUIS & DELTA MENDOTA WATER AUTHORITY, et al.,

Defendant-Intervenors.

ANDERSON-COTTONWOOD IRRIGATION DISTRICT, et al.,

Joined Parties.

Before the Court for decision in this long-standing, highly complex Endangered Species Act

(“ESA”) case are the following motions: two defense motions to dismiss the remaining aspects of the

only remaining claim (the sixth claim for relief) in this case on mootness grounds; Plaintiffs’ motion to

stay the sixth claim in light of newly-filed, related litigation; Federal Defendants’ related motion to

dismiss the seventh claim for relief as moot; and Plaintiffs’ request for entry of separate judgment under

Federal Rule of Civil Procedure 54(b) as to the second, fourth, and fifth claims for relief. The matters

were taken under submission on the papers pursuant to Local Rule 230(g). The Court has thoroughly

reviewed and considered the briefs and authorities cited therein in light of the entire record. For the WITHOUT PREJUDICE as MOOT. In the coming days, the Court plans to enter a separate order

requesting supplemental briefing in connection with Federal Defendants’ motion to dismiss the seventh

claim for relief. The Court also will endeavor to rule on Plaintiffs’ remaining request for entry of

separate judgment before the end of the month. If it cannot complete that last task, that remaining

motion will be handled by the jurist who will soon be assigned to this and related cases.

On March 12, 2018, Plaintiffs, a coalition of environmental interest groups led by the Natural

Resources Defense Council (“NRDC”), filed the currently operative Sixth Supplemental Complaint

(“6SC”), which includes numerous claims brought under the Administrative Procedure Act (“APA”), 5

U.S.C. § 701 et seq., and the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., against the

U.S. Bureau of Reclamation (“Bureau” or “Reclamation”), the U.S. Fish and Wildlife Service (“FWS”

or “Service”), and various Joined Defendants and Defendant Intervenors. See generally ECF No. 1187.

Certain aspects of the sixth claim for relief arising under Section 9 of the ESA, 16 U.S.C. § 1538

(“Section 9”), remain unresolved. Generally, the sixth claim (“Section 9 Claim”) alleges that certain

holders of a type of long-term, priority water contract, known as the Sacramento River Settlement

Contracts (“SRS Contracts” or “SRS Contractors” when referring to the holders), and Reclamation

violated Section 9’s prohibition against taking listed species because they caused substantial

temperature-dependent mortality of Sacramento River winter-run Chinook salmon (“winter-run”) and

Central Valley spring-run Chinook salmon (“spring-run”) eggs and fry (young fish) in the Upper

Sacramento River in 2014 and 2015. 6SC at ¶¶ 201-205.

Section 9 of the ESA makes it unlawful for any person to “take,” i.e., to harm, kill or harass, any

listed endangered species of fish or wildlife within the United States, 16 U.S.C. §§ 1538(a)(1)(take

prohibition), 1532(12) (definition of “take”), unless an exemption from the take prohibition is obtained

pursuant to certain other ESA provisions, see id. §§ 1536(b)(4), 1536(o), 1539(a). The Section 9 Claim Contractors’ diversion of water pursuant to their priority water rights. Without belaboring the point or

delving into detail that is unnecessary to this order, it is safe to say that at the time this Court ruled on

the parties’ cross-motions for summary judgment concerning the Section 9 Claim, the SRS Contractors

did not hold any permit or other form of exemption from Section 9’s take prohibitions with respect to

their primary, priority diversions from the Sacramento River. See Nat. Res. Def. Council v. Zinke, 347 F.

Supp. 3d 465, 484 (E.D. Cal. 2018).

The Section 9 Claim against Reclamation focuses on Reclamation’s discretionary activities,

including actions Reclamation took in 2014 and 2015 to facilitate voluntary transfers between the SRS

Contractors and others, as one part of Reclamation’s overall role in the coordinated operation of the federal Central Valley Project (“CVP”) and State Water Project (“SWP”) (collectively, the “Project”).1

ESA Section 7(a)(2) imposes a procedural duty on Reclamation to consult with FWS or the National Marine Fisheries Service (“NMFS”), depending on the protected species at issue,2 to “insure that any

action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued

existence of any endangered species or threatened species or result in the destruction or adverse

modification” of critical habitats of listed species. 16 U.S.C. § 1536(a)(2).

Reclamation has on numerous occasions engaged in consultation over the Project with both FWS

and NMFS. Formal consultation results in the issuance of a “biological opinion” (“BiOp”) by the

relevant wildlife agency (FWS or NMFS). See 16 U.S.C. § 1536(b). If the BiOp concludes that the

proposed action would jeopardize the species or destroy or adversely modify critical habitat, see id. §

1 Reclamation coordinates with California’s Department of Water Resources to operate the CVP and SWP. See San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 594, 597 (9th Cir. 2014).

2 Generally, FWS has jurisdiction over species of fish that either (1) spend the major portion of their life in fresh water, or (2) spend part of their lives in estuarine waters, if the remaining time is spent in fresh water. See Cal. State Grange v. Nat’l Marine Fisheries Serv., 620 F. Supp. 2d 1111, 1120 n.1 (E.D. Cal. 2008), as corrected (Oct. 31, 2008). NMFS is granted jurisdiction over fish species that (1) spend the major portion of their life in ocean water, or (2) spend part of their lives in estuarine waters, if the remaining portion is spent in ocean water. Id. NMFS exercises jurisdiction over the winter-run and prudent alternative[]” (“RPA”) that avoids jeopardy, destruction, or adverse modification. Id. §

1536(b)(3)(A). If a BiOp concludes that the proposed action (or the action implemented in conjunction with actions described in the RPA) will cause incidental taking3 of protected species, but that despite

this taking, the action will not jeopardize the species or threaten critical habitat, the wildlife agency

shall provide the Federal agency and the applicant concerned, if any with a written statement that—

(i) specifies the impact of such incidental taking on the species,

(ii) specifies those reasonable and prudent measures that the Secretary

considers necessary or appropriate to minimize such impact,

(iii) . . . , and

(iv) sets forth the terms and conditions (including, but not limited to, reporting requirements) that must be complied with by the Federal agency

or applicant (if any), or both, to implement the measures specified under clauses (ii) and (iii).

Id. § 1536(b)(4). This written statement, with its “reasonable and prudent measures” (“RPM”) and

associated terms and conditions, is referred to as an “Incidental Take Statement” (“ITS”), which, if

followed, exempts the action agency from the prohibition on takings found in Section 9. Id. § 1536(o);

Aluminum Co. of Am. v. Adm’r, Bonneville Power Admin., 175 F.3d 1156, 1159 (9th Cir. 1999).

At the time of the filing of the 6SC, the Project was operating under dual “jeopardy” BiOps, one

issued by FWS covering certain aquatic and terrestrial species under FWS jurisdiction, and a second

issued by NMFS in 2009 (“2009 NMFS BiOp”), covering winter-run, spring-run, and several other

species under NMFS jurisdiction. As a condition on Project operation, the 2009 NMFS BiOp imposed a

number of conditions designed to protect winter-run and spring-run Chinook, including temperature

management protocols applicable to operation of the dams that control the flow of water into the

Incidental take is that which “is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.” 16 Concurrent with the issuance of the 2009 NMFS BiOp, NMFS issued to Reclamation an ITP, exempting

Reclamation from Section 9 take liability so long as the agency complies with the terms and conditions

set forth therein, including requirements related to temperature control. Id. At all times, Plaintiffs’

success on its Section 9 claim against Reclamation therefore hinged, at least in part, on proving that

Reclamation’s conduct was not in conformity with the ITS covering the coordinated operation of the

Project. See id. at 523.

Since early 2019, the parties and the Court were aware that Reclamation and NMFS actively had

been engaged in the process of revisiting and possibly revising the conclusions of and conditions set

forth in the 2009 NMFS BiOp through a process of “reconsultation” under ESA Section 7. On August

15, 2019, the Court vacated the then-impending trial date because release of a revised BiOp appeared

imminent–or at least imminent enough to make it impractical and wasteful for the parties and the Court

to prepare for trial. ECF No. 1366. Critically, public records available at that time, including Reclamation’s Biological Assessment (“BA”)4, suggested that, at the very least, the Court would have to

examine closely any revised BiOp to determine its impact upon the pending claims. See generally id.

NMFS issued its revised BiOp October 22, 2019 (“2019 NMFS BiOp”). See ECF No. 1374 (Corrected Notice of Administrative Decisions).5 The 2019 NMFS BiOp concluded that Reclamation’s

proposed plan for the coordinated operation of the Project would not cause jeopardy to the listed species

addressed therein, including the winter-run and spring-run Chinook. 2019 NMFS BiOp at 797. The

4 The ESA Section 7 consultation process normally begins with the preparation by the “action agency” (i.e., the agency proposing the project) of a BA, which is designed to determine whether any listed species “is likely to be affected” by the

action. 16 U.S.C. § 1536(c)(1). If the BA determines that a threatened or endangered species “is likely to be affected,” the agency must formally consult with the FWS or NMFS (sometimes referred to generically as “wildlife agencies”). See id. § 1536(a)(2); 50 C.F.R. § 402.14. Formal consultation results in the issuance of a BiOp by the relevant wildlife agency. See id. § 1536(b). In this case, Reclamation is the “action agency” that proposed the project under review, namely the coordinated operation of the CVP and SWP, so the reconsultation process began in earnest with Reclamation’s issuance of a BA. 5 The full text of the revised 2019 NMFS BiOp is available at https://www.fisheries.noaa.gov/resource/document/biological- opinion-reinitiati on-consultation-long-term-operation-central-valley (last visited January 15, 2020). Hereafter, references to species Reclamation embedded within its proposed operational plan. Id. at 14-19. The 2019 NMFS

BiOp contains a revised ITS, which sets forth updated terms and conditions under which incidental take

caused by the Project is exempted from Section 9 take liability. Id. at 797-824. However, the 2019

NMFS BiOp itself indicates that “[t]he incidental take exemptions provided for in this [ITS] are effective only upon Reclamation’s issuance of the Record of Decision [(“ROD”)6].” Id. at 797. As of the date of this decision, Reclamation has yet to issue a ROD.7

Following the issuance of the 2019 NMFS BiOp, the parties agreed to a schedule for the

filing/renewal of the pending motions, understanding that the undersigned will be retiring from the

bench at the end of January 2020. That effort resulted in the renewal, updating, and completion of

briefing on two motions to dismiss, one filed by Federal Defendants (ECF Nos. 1323 & 1381), the other

by the SRS Contractors (ECF Nos. 1324 & 1382), as well as the filing of a separate motion to stay and for separate entry of judgment as to certain claims in this case filed by Plaintiffs (ECF No. 1384).8

Despite what appears to be the parties’ best efforts to expedite and narrow the briefing to facilitate

resolution of as many issues as possible by the undersigned, the motions are lengthy and complex. The

Court has reviewed the arguments and relevant authorities with care and notes that the issues are

numerous and nuanced, with several issues of first impression embedded therein.

6 The issuance of a BiOp by one or both of the wildlife agencies (FWS and/or NMFS) does not end the ESA permitting process. The action agency still must accept or decline any conditions set forth therein and comply with any other regulatory requirements; the culmination of this last decision-making stage is normally the issuance of a ROD. See Consol. Salmonid Cases, 688 F. Supp. 2d 1013, 1025 (E.D. Cal. 2010). In the present case, as set forth in the next footnote, Reclamation is undertaking a review pursuant to the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4331 et seq., prior to issuing a final decision.

7 The Court takes judicial notice of Reclamation’s release on December 19, 2019, of its Final Environmental Impact Statement on the Reinitiation of Consultation on the Coordinated Long-Term Operation of the Central Valley Project and State Water Project, available at https://www.usbr.gov/mp/nepa/nepa_project_details.php?Project_ID=39181 (last visited January 15, 2020). The website on which that document is posted indicates that Reclamation “will make a decision on the project no earlier than January 21, 2020.” Id. Practically speaking, even if a Record of Decision issues between January 21, 2020 and the end of the month, given this Court’s workload, that timeline does not afford sufficient time to revisit the issue.

8 Plaintiffs have w ithdrawn a separate motion for reconsideration. See ECF Nos. 1335, 1383. Although the Court would prefer to aid its successor jurist by resolving as many issues as

possible, certain matters cannot be resolved at this time. In particular, the Court agrees with Plaintiffs

that the motions to dismiss are premature. Both the Federal Defendants’ and SRS Contractors’ motions

are premised on the proposition that the interposition of a new regulatory regime as set forth in the 2019

NMFS BiOp renders Plaintiffs’ remaining claims moot. See generally ECF Nos. 1381, 1382. But,

“[r]egardless of whatever steps have been taken thus far, [Reclamation] can change its mind (or, more

precisely, has not yet made up its mind) until it issues a [ROD].” Sierra Club v. U.S. Dep’t of Energy,

825 F. Supp. 2d 142, 156-57 (D.D.C. 2011); see also Consol. Salmonid Cases, 688 F. Supp. 2d at 1025

(“[U]ntil Reclamation determined that it would provisionally accept the RPA[]s, the BiOp was not

binding upon Reclamation.”).

B. Order of Motions

Even if Reclamation soon issues its ROD without materially changing any aspect of the Project,

the Court would hesitate to act at this time in light of the inescapable reality that Plaintiffs have filed a

challenge to the 2019 NMFS BiOp. See Pac. Coast Fed’n of Fishermen’s Assns., et al. v. Ross, et al.,

3:19-cv-07897-LB. That lawsuit challenges the 2019 NMFS BiOp and a parallel “no-jeopardy” BiOp

issued by FWS. Among the numerous grounds alleged therein, Plaintiffs allege that “Reclamation’s plan

eliminates important protections that were required by the 2009 Biological Opinion and intended to

ensure adequate cold water to meet temperature requirements, and is likely to result in adverse water

temperatures [in the lower Sacramento River], among other places, causing adverse impacts on winter-

run and spring-run Chinook salmon and Central Valley steelhead.” Ross, Docket No. 1, ¶ 89(c). The

Prayer requests that the BiOps, including their ITSs, be held unlawful and set aside, and that the

agencies be enjoined from relying on the BiOps until lawful BiOps have been produced. Id. at p. 47.

Plaintiffs’ motion to stay argues that the most efficient way forward is to stay this case while that

litigation proceeds because, if Plaintiffs’ prevail in their challenge to the 2019 NMFS BiOp, the underlying the remaining claims in this case, and the basis for Defendants’ motions to dismiss, would

shift again. See ECF No. 1384-1 at 4-10.

Defendants argue that the Court should address their jurisdictional motions first, citing Ex Parte

McCardle, 74 U.S. 506, 514 (1868), for the very general proposition that “[w]ithout jurisdiction the

court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to

exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.”

(emphasis added). It is undeniably true that a court of limited jurisdiction cannot resolve a claim on the

merits if it lacks jurisdiction over that claim. However, Defendants’ citation to this arcane language fails

to acknowledge more nuanced jurisprudential rules that apply today, more than a century and a half after

McCardle was decided. “[J]urisdiction is vital only if the court proposes to issue a judgment on the

merits.” Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007). Thus, the

Ninth Circuit has stated that courts have “leeway choose among threshold grounds for denying audience

to a case on the merits.” Potter v. Hughes, 546 F.3d 1051, 1055 (9th Cir. 2008) (internal quotation

omitted). Because of the general rule that district courts are courts of limited jurisdiction, they normally

should resolve matters of subject matter jurisdiction before other threshold issues. Id. at 1061. But there

are exceptions to this rule. Specifically, where the other threshold issue “creates the jurisdictional issue,”

or the resolution of the threshold issue is “clear,” while the jurisdictional issue is “difficult,” it can be

appropriate for the court to act on the other threshold issue without confirming jurisdiction. Id.

While the Court cannot locate any cases that apply Potter to the precise arrangement of circumstances presented here,9 the Court believes the general principles of both Potter exceptions are

9 Cases in this circuit have applied a Potter-inspired test to determine the order of business where a motion to remand is competing with a motion to stay a matter pending transfer to a Multi-District Litigation court. See Conroy v. Fresh Del Monte Product, Inc., 325 F. Supp. 2d 1049, 1053 (N.D. Cal. 2004) (explaining that first, a court should give preliminary scrutiny to the merits of the motion to remand; second, if the jurisdictional issue appears factually or legally difficult, the court should determine whethe r identical or similar jurisdictional issues have been raised in other cases that have been transferred to the Plaintiffs’ lawsuit does not “create” the jurisdictional issue, the BiOp it challenges does. Therefore, the

Ross lawsuit, which seeks to invalidate the 2019 NMFS BiOp has the potential to upend the essential

bases underpinning Defendants’ motions to dismiss.

Even if it is inappropriate to extend the first Potter exception in this manner, the second

exception applies. The jurisdictional issues here are unusually difficult and complex. The general issue

presented in the Defendants’ mootness motions is whether it has become “impossible for a court to grant

any effectual relief whatever to the prevailing party.” Chafin v. Chafin, 568 U.S. 165, 173 (2013).

Among the many difficult questions presented by the unique circumstances presented here are the

following, which are posed here simply as examples:

• Federal Defendants maintain that the remaining aspects of the Section 9 Claim against

them “largely center” on whether Reclamation’s past conduct violates the 10-year, long

term performance measures in the 2009 NMFS BiOp ITS. ECF No. 1090 at 3. Federal

Defendants argue that it is “mathematically impossible” for Plaintiffs to prove that

Reclamation violated the 10-year performance standard, presumably because there will

not have been ten years of performance under the 2009 NMFS BiOp ITS before the

regulatory regime was changed. Id. at 4. Federal Defendants point out, correctly, that

there is no substantially similar 10-year performance measure in the 2019 NMFS BiOp

and ITS. Id. The Court notes, however, that while its analysis of Federal Defendants’

motion for summary judgment focused on the 10-year performance standard, questions

were raised in its ruling on that motion regarding whether there were other, enforceable

aspects to the 2009 BiOp ITS. See Zinke, 347 F. Supp. 3d 482-83, 523 (denying Federal

be transferred, th e court should stay the action); see also Rubio v. Arndal, No. 1:13-CV-0027-LJO-BAM, 2013 WL 796669, certain long-term performance measures are to be interpreted and applied, there are fact

disputes as to whether Reclamation complied with the terms and conditions of the 2009

NMFS BiOp ITS); see also id. at 521 (noting that the 2009 BiOp appears to include a

separate, possibly independent, take trigger in the 2009 NMFS BiOp ITS, which indicates

that “incidental take will be exceeded if the water temperature exceeds 56°F upstream of

the established [temperature compliance point (“TCP”)]” and that “if the TCP

performance goals in the RPA action are exceeded, then take is exceeded for this action,

and Reclamation shall reinitiate consultation”). As a result, whether it is “mathematically

impossible” for the 2009 BiOp ITS’s long-term (10-year) performance measures to be

violated may not be dispositive of the fate of Plaintiffs’ remaining claims against Federal

Defendants. If Reclamation was subject to a short-term temperature management

requirement (e.g., if water temperature exceeded 56°F upstream of the TCP) in 2014

and/or 2015, would it be impossible for the Court to offer Plaintiffs relief if Plaintiffs’

allegations plausibly suggest that requirement was violated and that similar conduct by

Reclamation is likely to cause take outside the take limits of the 2019 NMFS BiOp’s ITS

in the future?

• In light of the factual allegation that three brood years in a row (2013, 2014, and 2015)

suffered catastrophic losses, Plaintiffs argue that the population level harm from these

losses to the species in question, which have three-year life cycles, is ongoing. Can this

form a sufficient basis to impose injunctive relief under Section 9 against Defendants

despite regulatory changes imposed by the 2019 NMFS BiOp’s new ITS? In other words,

assuming Plaintiffs can prove ongoing harm from the past violations, is it even necessary

for Plaintiffs to demonstrate that Defendants will violate the 2019 NMFS BiOp’s take

limitations in the future to obtain remedial injunctive relief? resolution of the motion to stay is relatively clear. While the Supreme Court has held that “engaging

subject-matter jurisdiction at the outset of a case is often the most efficient way of going,” Ruhrgas AG

v. Marathon Oil Co., 526 U.S. 574, 587-88 (1999) (internal quotation marks and citation omitted), the

Court believes this is one of those rare cases in which the most efficient path is to wait for the regulatory

environment to resolve itself further.

C. Motion to Stay

As mentioned, Plaintiffs move to stay what remains of the Section 9 Claim in light of their

pending challenge to the 2019 NMFS BiOp.10 United States district courts have inherent authority to

stay proceedings, for the power to stay “is incidental to the power inherent in every court to control the

disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for

litigants.” Landis v. North American Co., 299 U.S. 248, 254 (1936); accord Clinton v. Jones, 520 U.S.

681, 706 (1997) (“The District Court has broad discretion to stay proceedings as an incident to its power

to control its own docket.”).

A trial court may, with propriety, find it is efficient for its own docket and the fairest course for the parties to enter a stay of an action before it,

pending resolution of independent proceedings which bear upon the case.

Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857, 863-64 (9th Cir. 1979). This is true even if the

issues in such proceedings are not necessarily controlling with respect to the action before the court. Id.

In exercising its discretion, a court must evaluate the competing interests affected by either granting or

refusing a stay, including “the hardship or inequity which a party may suffer in being required to go

forward, and the orderly course of justice measured in terms of the simplifying or complicating of

issues, proof, and questions of law which could be expected to result from a stay.” Lockyer v. Mirant

Plaintiffs also i ndicate that the State of California may soon also challenge the 2019 NMFS BiOp. See ECF No. 1384-1 at whether to stay proceedings, the Court considers the following factors: (1) judicial economy; (2) the

moving party’s hardship; and (3) potential prejudice to the non-moving party.” Single Chip Sys. Corp. v.

Intermec IP Corp., 495 F. Supp. 2d 1052, 1057 (S.D. Cal. 2007). A court must “balance the length of the

stay against the strength of the justification given for it.” Yong v. I.N.S., 208 F.3d 1116, 1119 (9th Cir.

2000). “If a stay is especially long or its term is indefinite,” a court should “require a greater showing to

justify it.” Id. The party proposing a stay bears the burden of proving a stay is warranted under the

discretionary Landis factors. Clinton, 520 U.S. at 708.

1. Judicial Economy

Here, the Court believes that judicial efficiency and the orderly course of justice favor a stay.

First, as discussed above, Defendants’ motions to dismiss the sixth claim are premised entirely on the

changes to the operative regulatory regime embodied in the 2019 NMFS BiOp and related ITS. If

Plaintiffs’ challenge to the 2019 NMFS BiOp succeeds, the basis for Defendants’ motions will either

disappear entirely or be dramatically altered.11 At the same time, the issues raised in those motions are

unusually complex and difficult, risking the waste of scarce judicial resources should the Court endeavor

to resolve them while Plaintiffs’ separate challenge is pending. Defendants do not seriously dispute that

a stay has the potential to save judicial and party resources.

2. Hardship to the Moving Party

Plaintiffs assert that they will be prejudiced if a stay is not entered in this case because: (1) they

may be required to re-try at least some aspects of the case if the 2019 NMFS BiOp is set aside; and

(2) they will be required to engage in another round of expensive discovery because any discovery that

has taken place in this case proceeded in light of existing operations, not the 2019 NMFS BiOp. ECF

11 The SRS Contractors are correct to point out that, even if Plaintiffs succeed on the merits of their challenge to the 2019 NMFS BiOp, vac atur of that BiOp or its ITS is not automatic. ECF No. 1388 at 7. The Court does not believe this changes dismiss, which is far from certain. Accordingly, because it is not possible at this stage to determine how

likely it is that Plaintiffs will be required to expend their resources in the manner described, the Court is

focusing instead on the judicial economy/ orderly course of business analysis.

3. Prejudice to the Non-Moving Parties

Defendants complain that, should the stay remain in place throughout the entirety of the

challenge to the 2019 NMFS BiOp, the potential length of such a stay weighs against granting Plaintiffs’

motion. The SRS Contractors point out that previous challenges to BiOps for the Project have taken

upwards of five years. But, the Ninth Circuit does not direct courts to focus on the absolute length of a

stay, but rather on whether “it appears likely that the other proceedings will be concluded within a

reasonable time in relation to the urgency of the claims presented to the court.” Lockyer, 398 F.3d at

1111 (emphasis added). Through no particular parties’ fault, the Section 9 Claim has been pending for

more than three years. See ECF No. 1020 (Fourth Supplemental Complaint). While this might ordinarily

warrant efforts to bring about a swift resolution, these cases typically take many years to adjudicate due

to their complexity and the number of parties involved. Moreover, there is no indication that the material

Plaintiffs plan to bring to bear is particularly likely to become any staler as time progresses. The key

questions are likely to turn on scientific and hydrologic records from 2014 and 2015 that have been

preserved. Likewise, to the extent there are relevant fact witnesses, depositions have already taken place.

The SRS Contractors make a separate prejudice argument that is worth some discussion. They

point out, correctly, that Plaintiffs have argued in the context of their challenge to the 2019 NMFS BiOp

that this action is not closely related Ross. ECF No. 1389-1 (Ross, Docket No. 5 at 3). The SRS

Contractors maintain that, if these actions are indeed unrelated, the SRS Contractors will suffer

prejudice from the inability to adjudicate claims alleged against them while awaiting adjudication of the

separate claims asserted in Ross. See ECF No. 1388 at 6. The Court has no time for such fantasies.

Having examined the complaint in Ross, the Court believes there is considerable overlap between the related cases, the Court cannot rationally assume the SRS Contractors will sit Ross out, as they have

intervened in essentially every other related case involving application of the ESA to the Project because

the operative regulatory regime has the potential to materially impact their contractual rights.

The SRS Contractors also suggest that the Court should pass the question of whether or not a

stay is appropriate to the next judge to be assigned to this matter. See ECF No. 1388 at 7-8. This is a

matter of internal judicial administration that the undersigned has considered and rejects, because it

would be wasteful for the court not to rule at this time given the time the undersigned has spent

considering the pending motions. The judge to whom these cases will be transferred may, at any time

(sua sponte or in response to a motion), reconsider the status of this stay.

In sum, Judges in the Eastern District of California have been presiding over these cases and the

relevant regulatory regimes now for several decades, the undersigned for approximately nine of those

years. Among the many lessons the undersigned will pass on to its successor (through various means,

including transfer of staff with extensive experience in these matters) is the fact that the regulatory

regime that governs the Projects is always shifting. In light of this, the Court must constantly weigh the

practical implications of those shifts in light of its dual responsibilities to adjudicate cases and to avoid

waste. Having considered this balance, the Court GRANTS Plaintiffs’ motion to stay and DENIES

WITHOUT PREJUDICE Defendants’ motions to dismiss.

For the reasons set forth above,

1. Plaintiffs’ motion to stay the Setion 9 Claim (sixth cause of action) is GRANTED; and

2. Defendants’ motions to dismiss the Section 9 Claim are DENIED WITHOUT

PREJUDICE to their renewal upon the lifting of the stay.

Until further notice, every six months from the date of entry of this order, or fourteen days from

the entry of judgment in Ross, whichever is sooner, the Parties are instructed to file a joint status report In the coming days, the Court plans to issue a request for supplemental briefing in connection

with Federal Defendants’ motion to dismiss the seventh claim for relief. In addition, it will endeavor to

rule on Plaintiffs’ remaining request for entry of separate judgment before the end of the month. If it

cannot complete the latter task, that motion will be handled by district judge who will soon be assigned

to this and related cases.

Dated: January 21, 2020 /s/ Lawrence J. O’Neill _____ UNITED STATES DISTRICT JUDGE