COALITION FOR A SUSTAINABLE DELTA v. McCAMMAN

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ref473 F. Supp. 2d 9, 22 (D.D.C 2007) (finding that plaintiffs had standing even though they could not "tell the difference between a genetically-engineered plant and a resident plant," because "[p]laintiffs' alleged interest is in viewing native fauna, and the relevant inquiry is whether injury to that interest is probably or has occurred, regardless of whether that interest is visible.").

The uncontradicted evidence is that, even though his visits have become less frequent in recent years and his encounters with the Listed Species have been few and far between, Mr. Dillon (1) has viewed salmon both in the Delta and in rivers upstream of the Delta and (2) has sought to view listed salmon and steelhead on many occasions. See Dillon Opp'n Decl. ¶¶ 1-2; Dillon Interrog. Resps. at 5:26-6:2, 7:26-8:1 (Mr. Dillon "has attempted to have, and intends to continue having significant and repeated exposure to the" Listed Species); First Dillon Depo. at 49:3-22, 55:10-14, 103:16-104:13.

3. Does Mr. Dillon Retain Concrete Plans to Visit the Delta?

Mr. Dillon testified at his first deposition that he has standing plans to visit the Delta on a minimum of three days per year, July 4th, Labor Day, and around Christmas. SDSUF #49. However, it is undisputed that, despite his previous assertions of intent to travel to the Delta both over the Labor Day weekend and in December 2009, Mr. Dillon visited the Delta only one time in 2009 to photograph western pond turtles and observe other wildlife. Dillon Supp. Decl. at 147:23-24. Mr. Dillon explained that his plans changed. Id. at 146:17-19.

Mr. Dillon's testimony at his supplemental Deposition demonstrates that he possesses concrete plans to visit the Delta in the future. In fact, he had plans to fish on the Sacramento River the day after his supplemental deposition. Dillon Supp. Depo. 173:14-15. He also planned on joining some friends on their boat "one day over the three-day [Labor Day] holiday in the neighborhood of Willow Berm," where they would "probably be anchored offshore somewhere, to do some fishing, some wildlife viewing, some photography, hopefully catch a glimpse of an endangered species or two." Id. at 18-21. Mr. Dillon has also been planning "one-to-two-week houseboating trip around October 2010" with other members of his family and some friends. Id. at 151:10-152:10; 173:22-23. Although he has not put a deposit down on the houseboat, he has tentatively chosen a rental firm in the central Delta. Id. at 167:15-168:6. The only reason he has not chosen specific dates for the trip is because he has been waiting to learn the trial date for this case. Id. at 169:4-5. He also has tentative plans to return to the delta for a "couple of trips" in the spring of 2011 to "view wildlife," 173:24-174:1, but these plans are not yet concrete.

The undisputed evidence establishes that Mr. Dillon has demonstrated injury in fact. As to this prong of standing, Plaintiffs' motion for summary adjudication is GRANTED.

4. Causation Redress.

a. Legal Standard Re: Causation.

The July 16, 2009 Decision summarizes the relevant legal standard:

The second standing requirement, causation, requires that the injury be "fairly traceable" to the challenged action of the defendant, and not be "the result of the independent action of some third party not before the court." Tyler v. Cuomo, 236 F. 3d 1124, 1132 (9th Cir. 2000). The causation element is lacking where an "injury caused by a third party is too tenuously connected to the acts of the defendant." Citizens for Better Forestry v. U.S. Dept. of Agric., 341 F.3d 961, 975 (9th Cir. 2003). For the purposes of determining standing, while the causal connection cannot "be too speculative, or rely on conjecture about the behavior of other parties, [it] need not be so airtight . . . as to demonstrate that the plaintiffs would succeed on the merits.'" Ocean Advocates, 402 F.3d at 860.

National Audubon Society v. Davis, 307 F.3d 835 (9th Cir. 2002), provides guidance. The plaintiffs in Davis, bird enthusiasts, alleged that a California law banning the use of leghold traps to capture or kill wildlife violated the Migratory Bird Treaty Act. Id. at 842-843. Prior to the passage of that California law, federal officials used leghold traps against predators to protect several bird species. Id. at 844. The Ninth Circuit held that plaintiffs had standing to challenge the leghold trap ban, finding their injury was "fairly traceable" to the proposition because:

[T]he federal government removed traps in direct response to Proposition 4 (whether under direct "threat of prosecution" or not). Removal of the traps leads to a larger population of predators, which in turn decreases the number of birds and other protected wildlife.

Id. at 849. "This chain of causation has more than one link, but it is not hypothetical or tenuous; nor do appellants challenge its plausibility." Id.

Here, it is Plaintiffs' burden to establish that their theory of causation is at least "plausible." Id. See also Envtl. Def. Ctr. v. EPA, 344 F.3d 832, 867 (9th Cir. 2003) ("A plaintiff who shows that a causal relation is `probable' has standing, even if the chain cannot be definitively established."). Plaintiffs do not have to establish causation by a preponderance of the evidence required to prevail on the merits. Ocean Advocates, 402 F.3d at 860 (while the causal connection cannot "be too speculative, or rely on conjecture about the behavior of other parties, [it] need not be so airtight . . . as to demonstrate that the plaintiffs would succeed on the merits."). Because Plaintiffs are moving for summary judgment, to prevail, there must be no material facts that call into question the plausibility of their theory of causation.

Doc. 85 at 31-34 (footnotes omitted).

b. Analysis.

The July 16, 2009 Decision concluded that Plaintiffs were not entitled to summary judgment on the causation prong of standing:

CDFG's Conservation Plan states that by modifying the striped bass minimum size limits from 18 to 26 inches, the striped bass population will increase by almost 210,000 fish. Conservation Plan at 117. If true, the nature and extent of the sport-fishing regulations have a cognizable impact on the striped bass population. CDFG counters that the Conservation Plan also concluded that CDFG management efforts that do not include an artificial striped bass stocking program would result in the long-term decline of the adult striped bass population to 515,000 adults. Doc. 65 at 3 (citing Conservation Plan at 37). The Conservation Plan additionally concludes that maintaining the striped bass population at stable levels requires much more restrictive sport-fishing regulations than are presently in force. Id. (citing Conservation Plan at 117).

Plaintiffs' evidence of a link between higher striped bass abundance and increased Listed Species mortality is materially disputed. For example, CDFG's Conservation Plan concluded that a striped bass population of 765,000 adults maintained through an artificial stocking program would consume 6 percent of the Sacramento River winter-run Chinook salmon population, 3.1 percent of the Central Valley Spring-run Chinook salmon population, and 5.3 percent of the delta smelt population.

Conservation Plan at 45, 56, 70. Striped bass predation upon the Listed Species will be slightly lower in the absence of the stocking program, but will still be present and will range from 3.4-4.7 percent of the winter-run, 2.3 percent of the spring-run, and 3.6 percent of the delta smelt. Id. DFG reaffirmed these estimates in its Status Review of the Longfin Smelt, released January 2009. Second Rubin Decl., Doc. 78, Ex. 13 at 28. These statistics support Plaintiffs' contention that increased striped bass populations adversely affect the Listed Species' abundance.

However, the statistical analyses described in the Declaration of Matthew L. Nobriga raise questions about Plaintiffs' assertion that ending the enforcement of the striped bass sport-fishing regulations will cause a measurable increase in the abundance of the Listed Species. Nobriga opines that it is possible that reductions in striped bass populations will have unintended, negative effects on Listed Species abundance. Specifically, Nobriga emphasizes that, while striped bass prey on delta smelt, they also prey on one of the delta smelt's primary predators and competitors, the Mississippi silverslide. Nobriga Decl. at ¶¶ 7, 10. Nobriga opines that allowing depletion of the striped bass population may actually lead to decreased delta smelt abundance, because striped bass predation of Mississippi silverslide would be reduced. Id. at ¶ 10.

Nobriga references research performed by others contradicting the hypothesis that striped bass predation had a major influence on salmon survival. Id. at ¶ 12. Nobriga also performed his own regression analyses of the relationship between striped bass populations and those of the Listed Species, evidencing a positive relationship between striped bass abundance and winter-run abundance, and no relationship between striped bass abundance and either spring run, or delta smelt abundance. Id. at ¶¶ 16-17.

The Nobriga Declaration raises serious questions about the plausibility of Plaintiffs' causal theory by challenging Plaintiffs' fundamental assertion that there is some, measurable link between increased striped bass abundance and Listed Species mortality. This is all that is required to successfully oppose Plaintiffs' motion for summary adjudication on the issue of standing based on the extent of the dispute over causation.

Id. at 34-36 (footnote omitted).

Plaintiffs maintain that any dispute over whether there is a measurable link between striped bass abundance and Listed Species mortality was "answered conclusively" because Marty Gingras, a CDFG scientist, and Mr. Matthew Nobriga "admit that (1) increasing striped bass abundance increases striped bass predation on the Listed Salmon and (2) that reducing striped bass predation would benefit the populations of the Listed Salmon." Doc. 116 at 19.

It is undisputed that Mr. Gingras and Mr. Nobriga both stated that the following general facts were true:

(a) Striped bass prey on winter-run and spring-run. State Defendant's Response to PSUF #3.

(b) Striped bass predation on winter-run and spring-run increases as the striped bass population increases. State Defendant's Response to PSUF #4.

(c) Striped bass predation is one of a number of factors that contribute to the decline of winter-run and spring-run. State Defendant's Response to PSUF #7.

But, as discussed above, these statements may be qualified by other evidence in the record. Most obviously, State Defendant disputes the significance of striped bass predation on winter-run and spring-run. See, e.g., State Defendant's Responses to PSUF #3 (pointing out that Mr. Gingras testified repeatedly that offering figures for striped bass predation on the listed Species was speculation, Gingras Depo. 388:23-389:2, and that Mr. Nobriga similarly stated that trying to make a predation estimate would be like "pulling numbers out of the air," Nobriga Depo. 119:13-18).

Additionally, State Defendant materially disputes each report and expert opinion offered by Plaintiffs in support of Plaintiffs' estimates of the significance of striped bass predation on the Listed Species. For example, Plaintiffs rely on the expert report of Dr. Charles H. Hanson, which estimates a striped bass predation rate of 21% on winter-run. See PSUF #3(L). State Defendant first point out that Dr. Hanson's report relies on a report by Dr. David H. Bennett, which State Defendant maintains is "flawed" and its conclusions "disputed" as follows:

Bennett's Expert Report is refuted by Botsford's Expert Report. Botsford Expert Report. Among other critical flaws, Bennett has no information on angler behavior (Bennett Dep. 39:16-24, 40:3-6) (Wordham Decl., Exh. J), and did not include density dependence or stock-recruitment into his model. Botsford Expert Report, pp. 7-17. Bennett "did not use accepted method[s]." Id. at p. 7. Relying on creel survey data that do not serve as a proper proxy for changes in the striped bass sport fishing regulations, Bennett drew unsupported conclusions about angler behavior. Id. at p. 11. As Botsford stated, "It is difficult to say how well so much can be predicted from so little information, especially in the absence of any analysis or statements regarding the precision of the estimates." Id. Botsford summarizes his review of Bennett's report by concluding that Bennett's conclusions are without support and that it is impossible to calculate how much striped bass populations might decline if enforcement of the striped bass sport fishing regulations were enjoined:

From my evaluation it is clear that none of Dr. Bennett's modeling analyses lead to the conclusion that the striped bass population will decline by 60-70%. Furthermore, any such decline cannot be precisely predicted because of the uncertainty in the stock-recruitment relationship at low abundance and the future behavior of fishermen if the regulations were removed.

Id., p. 17. Botsford also points out errors in Bennett's yield-per-recruit calculations, including that they rely on the flawed results of the incorrect earlier calculations, which were based on faulty assumptions. Id., pp. 13-14.

Bennett does not consider himself a modeler. Bennett dep., 17:15-17.) Bennett developed his model himself, without assistance. Id. 37:9-19. His model was not peer-reviewed, and did not include density dependence. Id., 44:14-18. Bennett admitted that there are insufficient data to formulate a stock-recruitment model. Id., 40:3-4.

Dr. Bennett conceded he did not have data to calculate a stock-recruitment relationship. Id., 39:16-24, 40:3-6. And Dr. Bennett conceded that stock-recruitment includes density-dependent factors (as well as density-independent factors). Id., 41:2-7. Ultimately, Dr. Bennett's calculation of a 60-70% decline was based "primarily" on his own guess that at that figure "a number of fishermen are not going to be interested in fishing out there." Id., 57:1-4. But Dr. Bennett has absolutely no data to support that guess. It is pure speculation. And even if he did have some data, he has no qualification in interpreting it, as he has never published a peer-reviewed paper on angler behavior. Id., 64:10-65:23.

State Defendant's Response to PSUF #2.

Dr Hanson's conclusion is disputed by Mr. Nobriga, who states:

It is my conclusion that these [Dr. Hanson's] numbers cannot be claimed to have any reasonable scientific support. They were developed using a rudimentary consumption index as if it were actually estimating listed fish consumption. Further, they were developed without regard for uncertainty in the input data and the sensitivity of the results to that uncertainty. Hanson (2009) was certainly aware of this — his report was peppered with terms like "bias," "uncertainty," and "error."

State Defendant's Response to PSUF #3, Doc. 194, Ex. E. The State Defendant's response continues:

Nobriga pointed out that the food web is much more complex than the old "food chain" model suggested. SUF Response No. 3(L). The San Francisco Estuary is very complex. SUF Response No. 3(L). Using the example of the overbite clam, an invasive species in the Delta, Nobriga demonstrated the unpredictability that this complexity produces. SUF Response No. 3(L). Nobriga then used both simple and multiple regression analysis to show that striped bass predation has no obvious negative effect on the abundance of the Listed Species. SUF Response No. 3(L). In fact, 12 of the 20 regressions produced statistically significant positive correleations between striped bass populations and populations of the Listed Species. SUF Response No. 3(L).

Hanson testified that he is not an expert on the subject, even if he can be called "knowledgeable." Hanson Dep., 29:14-23, Wordham Decl., Exh. C. Hanson's opinion regarding replacement of striped bass by other predators (such as largemouth bass and white catfish) is not an expert opinion, but only his "sense." Id., 295:12-18.

Hanson testified that striped bass have coexisted with the Listed Species since the 1800s, and that the effect that striped bass have had on the Listed Species over that time is largely unknown. Id., 298:3-14. Hanson testified that in his expert opinion, there may not be adequate outflows in the Delta for the recovery of the Listed Species, whether or not striped bass are eliminated. Id., 339:23-342:22. In 2008, Hanson stated in a declaration that there is no evidence that changes in predation mortality resulted in the observed decline in salmonids in 2007. Declaration of Charles H. Hanson Ph.D. in Support of Defendant Intervenors' Position Regarding Interim Remedies, May 27, 2008, in Pacific Coast Federation of Fishermen's Association/Institute for Fisheries Resources v. Gutierrez, E.D. Calif., Case No. 1:06-CV-00245 OWW-GSA (Hanson Decl.), 22:23-26, Wordham Decl., Exh. D. Hanson further stated that a large number of factors have been identified, in addition to State Water Project and Central Valley Project operations, that affect the populations of Central Valley salmonids. Id., 30:19-20. He listed many of these, which included "predation by non-native invasive species." Id., 30:21-24. But he also stated that very little information is available on the relative contribution of these and other factors on salmonid populations. Id., 30:24-27. When he listed actions that could be taken during an interim period up to March 2009 to benefit both winter-run and spring-run Chinook salmon (as well as steelhead), Hanson did not include reducing predation by striped bass. Id., 45:24-48:26.

Id.

All experts agree that striped bass predation results in mortality of at least 5% of the listed salmonid populations each year. PSUF ## 3 7. However, this is not equivalent to a finding that the invalidation of the striped bass sportfishing regulations would similarly increase listed salmonid mortality by any measurable quantity. As discussed above, given that the Section 9 claim in this case focuses on a habitat modification that affects the entire population of the listed species, section 9 requires proof of some population-level effect. For causation, population-level mortality for the species must be caused by increased striped bass populations resulting from the enforcement of the sportfishing regulations.

For the purposes of standing, a plaintiff need not prove success on the merits. See Envtl. Def. Ctr. v. EPA, 344 F.3d at 867 ("A plaintiff who shows that a causal relation is `probable' has standing, even if the chain cannot be definitively established."); Ocean Advocates, 402 F.3d at 860 (while the causal connection cannot "be too speculative, or rely on conjecture about the behavior of other parties, [it] need not be so airtight . . . as to demonstrate that the plaintiffs would succeed on the merits."). The summary judgment standard requires that the facts be viewed in a light most favorable to the non-moving party, in this case the State Defendant. Viewed in this light, the facts do not demonstrate that it is probable that State Defendant's conduct has a significant population-level effect on the listed species. To the contrary, as was the case in the first round of summary judgment motions, the evidence, including the Nobriga Declaration, raises a genuine dispute about the plausibility of Plaintiffs' causal theory.

NMFS's recent letter to CFGC recommending that the Commission eliminate striped bass sportfishing regulations to "reduce [striped bass] predatory impact and thereby increase survival of native fish" by opening the striped bass season year round and removing minimum size and bag limits, Doc. 160-1, does not change the evidentiary situation on summary judgment. The NMFS letter is certainly relevant, but is not dispositive.

For the same reasons, there are serious factual disputes about the plausibility of Plaintiffs contention that invalidation of the striped bass sportfishing regulations would redress their injury. In the context of Central Delta's CVPIA affirmative defense, Plaintiffs appear to have abandoned their demand to invalidate the sportfishing regulations. If this is the case, their theory of redress is even more tenuous.

Plaintiffs' motion for summary adjudication on the causation and redressibility prongs of standing is DENIED.

D. Merits.

1. Plaintiffs' Motion for Summary Judgment on Their Section 9 Claim.

Plaintiffs affirmatively move for summary judgment that State Defendant's enforcement of the striped bass sportfishing regulations violates ESA § 9 by taking of Listed Salmonids without a take permit. This motion must be denied for the same reasons that the motion for summary adjudication on the standing and redress prongs of standing is denied. There are disputes of material fact regarding causation (i.e. whether State Defendant's conduct causes harm by habitat modification in violation of ESA § 9's take prohibition).

Plaintiffs' motion for summary judgment on the issue of Section 9 liability is DENIED.

2. CVPIA.

Plaintiffs seek summary judgment that the CVPIA does not provide a legitimate affirmative defense in this case. Central Delta's CVPIA defense was addressed in detail in the July 16, 2009 Decision:

The provisions of the Central Valley Project Improvement Act, Pub.L. 102-575, 106 Stat. 4600, Title 34, 106 Stat. 4706-31 (1992) pertaining to anadromous fish, which are defined to include striped bass, [] are a bar to any action to enforce any inconsistent provisions of the Endangered Species Act.

Doc. 20 at 13. Plaintiffs request summary adjudication to foreclose this affirmative defense, the operative effect of which would be to exempt CDFG's enforcement of striped bass sport-fishing regulations from the take prohibitions under Section 9 of the ESA, 16 U.S.C. § 1538(a)(1)(B), and the requirement that CDFG obtain an incidental take permit.

The CVPIA contains numerous provisions calling for protection and enhancement of striped bass within the Sacramento-San Joaquin Delta. CVPIA section 3403(a) defines the term "anadromous fish" to include "striped bass," making applicable section 3406(b)(1)'s maintenance and restoration provisions. That section requires the Secretary of Interior to "develop within three years of enactment and implement a program which makes all reasonable efforts to ensure that, by the year 2002, natural production of anadromous fish in Central Valley rivers and streams will be sustainable, on a long-term basis, at levels not less than twice the average levels attained during the period of 1967-1991." To this end, it is undisputed that FWS has established a doubling goal for striped bass of 2,500,000 fish. McDaniel Decl., Doc. 66-4, at ¶ 3 Ex. B (Final Restoration Plan for Anadromous Fish Restoration Program, January 9, 2001) at 9-10. It is also undisputed that this goal has not been achieved. Id. at Ex. C (Anadromous Fish Restoration Program Doubling Graphs for striped bass).

Section 3406(b)(1)(B) provides that "the Secretary is authorized and directed to modify Central Valley Project operations to provide flows of suitable quality, quantity, and timing to protect all life stages of anadromous fish. . . ." Section 3406(b)(1)(D)(2) requires that the Secretary "upon enactment of this title dedicate and manage annually 800,000 acre-feet of Central Valley Project yield for the primary purpose of implementing the fish, wildlife, and habitat restoration purposes and measures authorized by this title. . . ." This provision has been interpreted to require that the Secretary give primacy to its anadromous fish doubling program in the allocation of the 800,000 acre-foot CVP yield dedication. See San Luis Delta Mendota Water Auth. v. U.S. Dept. of the Interior, ___ F. Supp. 2d ___, 2009 WL 1362652 (E.D. Cal. 2009); Bay Institute of San Francisco v. United States, 87 Fed. Appx. 637 (9th Cir. Jan. 23, 2004). Because striped bass are included in the statutory definition of "andadromous fish," they are intended and designated beneficiaries of these efforts. CVPIA § 3403(a).

Section 3406(b)(14) is directed specifically to striped bass, requiring the Secretary to "develop and implement a program which provides for modified operations and new or improved control structures at the Delta Cross Channel and Georgiana Slough during times when significant numbers of striped bass eggs, larvae, and juveniles approach the Sacramento River intake to the Delta Cross Channel or Georgiana Slough."

Certain CVPIA provisions require the Secretary to coordinate with state agencies to protect anadromous fish in general and striped bass in particular. For example, Section 3406(b)(21) requires that the Secretary "assist the State of California in efforts to develop and implement measures to avoid losses of juvenile anadromous fish resulting from unscreened or inadequately screened diversions on the Sacramento and San Joaquin rivers, their tributaries, the Sacramento-San Joaquin Delta, and the Suisun Marsh." Similarly, section 3406(b)(18) requires that the Secretary "if requested by the State of California, assist in developing and implementing management measures to restore the striped bass fishery of the Bay-Delta estuary." Such measures must be "coordinated with efforts to protect and restore native fisheries." Id.

Central Delta is correct that "[i]t cannot be reasonably disputed that Congress intended to protect and restore striped bass." Doc. 66 at 5. However, Congress also expressed its intention in CVPIA § 3406(b), that the Secretary "operate the Central Valley Project to meet all obligations under state and federal law, including but not limited to the federal Endangered Species Act. . . ." In light of the fact that the CVPIA expressly requires compliance with the ESA, Plaintiffs argue that their ESA claims cannot be barred as a matter of law by the CVPIA. Doc. 57-2 at 5-7. Central Delta rejoins that the more specific, and more-recently enacted, provisions of the CVPIA requiring restoration of the striped bass fishery should prevail over the ESA's earlier-enacted, general requirements.

Plaintiffs cite Morton v. C.R. Mancari, 417 U.S. 535, 550-551 (1974), for the proposition that "courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective." Mancari and its progeny concern the repeal by implication of an earlier, specific provision, by a later-enacted, general one. Here, the issue is whether a later, specific provision renders inapplicable an earlier-enacted general one. Courts have "a duty to construe statutes harmoniously" whenever possible. 2B N. Singer J. Singer, Sutherland Statutes and Statutory Construction § 53:1 (7th ed. 2008).

Central Delta is correct that the CVPIA is the more recent and more specific expression of Congressional intent. Central Delta suggests that Rodgers v. United States, 185 U.S. 83, 89 (1902) sets forth the applicable canon of statutory construction:

Where there are two acts or provisions, one of which is special and particular, and certainly includes the matter in question, and the other general, which, if standing alone, would include the same matter and thus conflict with the special act or provision, the special must be taken as intended to constitute an exception to the general act or provision, especially when such general and special acts or provisions are contemporaneous, as the legislature is not to be presumed to have intended a conflict.

Central Delta ignores the law that a later, more specific statute only trumps an earlier general one where the two statutes are in conflict.

Can the numerous CVPIA provisions directing the Secretary of the Interior, in consultation with other federal agencies, to protect and enhance the striped bass population, be harmonized with application of section 9's take prohibition to CDFG's enforcement of the striped bass sport-fishing regulations and more general application of the ESA? On Plaintiffs' motion for summary adjudication on an affirmative defense for which Central Delta has the burden of proof at trial, Plaintiffs must show "an absence of evidence to support the nonmoving party's case." Soremekun, 509 F.3d at 984. Plaintiffs maintain, and have presented evidence to support their claim, that State Defendant's enforcement of the sport-fishing regulations necessarily take Listed Species, and that lawful application of the ESA to State Defendant's enforcement activities will require elimination of (or substantial modification to) those sport-fishing regulations, which are causing jeopardy to Listed Species. The State rejoins that the current sport-fishing regulations are critical to the maintenance of current striped bass abundance levels. The State's evidence suggests that the continued enforcement of these regulations, and/or the promulgation of more stringent protections, may be necessary to achieve the 2,500,000 striped bass population goal promulgated by the Service.

This presents a material factual dispute over the effects of CDFG's striped bass regulations on the bass and Listed Species populations. The express language and the legislative purpose of the CVPIA do not evince an intent to abrogate application of the ESA. Only after the facts are developed will it be possible to determine if a conflict in operation exists between implementation of the ESA to the sport-fishing regulations and achieving the CVPIA objectives by application of those regulations. Plaintiffs' motion for summary adjudication of Central Delta's CVPIA affirmative defense is DENIED WITHOUT PREJUDICE.

Doc. 85 at 19-26 (emphasis added, footnotes omitted).

In the present motion for summary judgment, Plaintiffs maintain that Central Delta's CVPIA affirmative defense should be deemed wholly inapplicable. To prevail, Plaintiffs must demonstrate either that the affirmative defense fails as a matter of law or there is an absence of evidence to support its assertion. See Soremekun, 509 F.3d at 984.

As the July 16, 2009 Decision articulated, a later-enacted, more specific statute trumps an earlier one insofar as they conflict. Central Delta maintains that the CVPIA's striped bass doubling goal, which equates to a goal of 2,500,000 fish, is just such a later-enacted, more specific statute that trumps the earlier, more general ESA. The statutory picture is more complicated than Central Delta acknowledges. The CVPIA protects anadromous species, defined by the statute to include striped bass and the Listed Salmonids, by, among other things, setting a goal of doubling the populations of all of these species. In addition, the CVPIA itself indicates that its provisions should be implemented in compliance with the ESA. This presents a unique issue of statutory interpretation. As the July 16, 2009 decision stated: "The express language and the legislative purpose of the CVPIA do not evince an intent to abrogate application of the ESA." Doc. 85 at 25. Rather, whether a conflict in operation exists between implementation of the ESA to the sport-fishing regulations and achieving the CVPIA objectives by application of those regulations is a question of fact. Id. at 25-26.

Morton v. Mancari, 417 U.S. 535 (1974), cited by Central Delta, is not analogous. Mancari upheld an employment preference for qualified Native Americans set forth in the Indian Reorganization Act of 1934 ("Indian Act") against a challenge that the preference violated general anti-discrimination provisions of the later-enacted Equal Opportunity Act of 1972 ("EOA"). Morton does stand for the proposition that "[w]here there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment." Id. at 550. Here, Central Delta argues that the later-enacted, more specific CVPIA should not be controlled or nullified by the earlier-enacted ESA. In Morton, the Supreme Court concluded that the later-enacted EOA expressed no intention to nullify the Indian Act preference, noting that, three months after enactment of the EOA, Congress enacted two other Indian preference laws. In this light, "[i]t would be anomalous to conclude that Congress intended to eliminate the long standing statutory preferences in []employment, as being racially discriminatory, at the very same time it was reaffirming the right of tribal and reservation-related private employers to provide Indian preference." 417 U.S. at 548. Why Central Delta would emphasize this holding is a mystery, as the simultaneous inclusion of protections for striped bass and salmonids in the CVPIA suggests an express intent to require protections for the Listed Salmonids notwithstanding the protections for the striped bass.

Central Delta recognizes that when repugnancy between two acts has been established, "the old law is repealed by implication only, pro tanto, to the extent of the repugnancy." United States v. Borden, 308 U.S. 188, 199 (1939).

Plaintiffs own briefs are equivocal on this factual issue. On the one hand, Plaintiffs' point to evidence suggesting that the goal of doubling the striped bass population is incompatible with the goal of doubling the listed salmonid populations. See Independent Peer Review of the CVPIA, Rubin Decl., Doc. 115, Ex. 47, at 22 ("The stated goal to increase the production of both native salmonids and exotic predators/competitors (e.g., striped bass and shad) is internally inconsistent."); id. at 47 ("programs that encourage exotic predatory species such as striped bass (e.g., California Fish and Game and the CVPIA itself) clearly conflict with CVPIA and ESA mandates to protect and rebuild depressed stocks of native salmonids. . . ."). This suggests that enforcement of the CVPIA's striped bass regulations is incompatible with the protections afforded the Listed Salmonids under the ESA.

The significance of this evidence is in dispute. As Central Delta points out "striped bass and the salmonids co-existed in the Delta for more than a century, and it has not been shown that [a similar coexistance] cannot be achieved." Doc. 125 at 14 (noting that FWS adopted the Restoration Plan to restore both striped bass and salmonids pursuant to the direction of the CVPIA). Central Delta also points out that, despite the opinions of the review panel, Congress expressed its unconditional intent to restore both striped bass and salmonids. At the same time, there is ample record evidence to support the proposition that the sportfishing regulations are necessary to achieve the CVPIA's goal of doubling the striped bass population.

Congress enacted the CVPIA in 1992. At the time of enactment the Sacramento River winter run Chinook salmon was already listed as "threatened" under the ESA. The CVPIA's legislative history states:

As a result of these combined factors, the winter-run Chinook of the Sacramento River has been reduced from a run of over 100,000 to fewer than 200 and, in 1989, was declared a threatened species under Federal law and an endangered species under State law.

H.R. 576, Part 1, 102nd Cong. (June 16, 1992), at 17-19.

The goal for striped bass promulgated by FWS has not been achieved. Doc. 126, McDaniel Dec. I, Ex. C (Anadromous Fish Restoration Program Doubling Graphs, for striped bass). Since 1992 the average annual abundance of striped bass has not even been half of the target level. Id. A recent FWS review states:

Illegal fishing may kill thousands of juvenile striped bass, possibly equivalent to the deaths of least 125,000 legal-sized bass each year (Brown 1987). This level of illegal fishing could equal or exceed the annual legal sport catch of 100,000-200,000 adult striped bass (DFG 1992a). As discussed previously, healthy fish populations can sustain high levels of fishing mortality, but the precipitous decline in adult striped bass abundance over the past 20 years indicates that the population is unhealthy (Figure 2-VI-31).

Doc. 126, Ex. D (excerpts from Volume 2 of FWS's Working Paper on Restoration Needs, Habitat Restoration Actions to Double Natural Production of Anadromous Fish in the Central Valley California), Vol. 2, p. 2-VIII-23.

On the other hand, in an attempt to rebut Central Delta's argument that Plaintiffs' request to use the ESA to invalidate the striped bass sportfishing regulations sets up a direct conflict between the CVPIA and the ESA, Plaintiffs insist that they are not seeking to invalidate the CVPIA or even the Defendant's ability to enforce striped bass regulations per se. Rather, Plaintiffs maintain that they only seek State Defendant's compliance with its ESA obligations, which can be achieved by either securing incidental take authorization from the appropriate federal wildlife agencies (NMFS or U.S. Fish and Wildlife Service) pursuant to section 7 or 10 of the ESA ( 16 U.S.C. §§ 1536, 1539), or by halting enforcement of the striped bass sport-fishing regulations. The ESA affords FWS and NMFS considerable discretion in designing remedial measures that might be imposed as part of any incidental take permit granted to CDFG under ESA § 9. It is possible that the CVPIA's fish doubling regulations are compatible with protections afforded the Listed Salmonids under the ESA. The current record is insufficient to resolve this question of fact as a matter of law.

Central Delta argues that Plaintiffs' attempt to modify its requested relief is disingenuous, because "the whole purpose and theory of their case is to use the ESA to eliminate striped bass regulations to decimate striped bass populations. Plaintiffs do not seek to control striped bass populations at 2.5 million fish, they seek to bring about a substantial reduction in striped bass well below the 2.5 million level." Doc. 125 at 15-16. Plaintiffs' intention is not clear from the record. Regardless, Central Delta is not moving for summary judgment, so it is not necessary to decide whether the ESA and the CVPIA are inescapably in conflict. A finding that the two statutes may be in conflict is sufficient to deny Plaintiffs' motion for summary judgment.

Plaintiffs are correct that the federal wildlife agencies have discretion in the design of remedial measures to protect the Listed Salmonids. However, Plaintiffs' citation of National Wildlife Federation v. NMFS, 524 F.3d 917, 929 (9th Cir. 2008) (" NWF v. NMFS"), does not support this proposition under the circumstances of this case, as NWF v NMFS concerned application of National Association of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007), which held that an ESA section 7 consultation applies "to all actions in which there is discretionary involvement or control." This is not a section 7 action and the regulatory provisions at issue in Home Builders are not applicable here.

Plaintiffs raise two additional, related arguments in an attempt to prove that Central Delta's CVPIA defense should fail as a matter of law. First, Plaintiffs point out that the CVPIA only authorizes and directs actions by the Secretary of the Interior; it does not purport to authorize or direct any actions by the California Fish and Game Commission or CDFG. See CVPIA § 3406. But, Congress expressly acknowledged the role of CDFG in maintaining and doubling fish populations. For example, the Secretary of the Interior is required to coordinate with CDFG to benefit anadromous fish: "As needed to achieve the goals of this program . . . Instream flow needs to be determined based on the recommendations of the U.S. Fish and Wildlife Service after consultation with the California Department of Fish and Game." CVPIA § 3406(b)(1)(B). Likewise, 800,000 acre feet of water are to be "managed pursuant to conditions specified by the U.S. Fish and Wildlife Service after consultation with the Bureau of Reclamation and the California Department of Water Resources and in cooperation with the California Department of Fish and Game." § 3406(b)(2)(B); see also § 3406(c)(1) (requiring development of a plan to "address fish, wildlife, and habitat concerns in the San Joaquin River . . . in cooperation with the California Department of Fish and Game. . . .").

Second, Plaintiffs note that the striped bass sport-fishing regulations pre-date the enactment of the CVPIA, suggesting that they could not have been adopted pursuant to the CVPIA's authority and therefore, even if the CVPIA trumps the ESA, this should not shield the striped bass sportfishing regulations from compliance with the ESA. Plaintiffs fail to acknowledge that the regulations are adopted on a triennial basis, and were recently readopted by the California Fish and Game Commission.

In the final analysis, the evidence suggests it is possible, but not certain, that enforcement of the ESA in this case can be harmonized with implementation of the CVPIA. The current record is insufficient to resolve this mixed question of fact and law on summary judgment.

Plaintiffs' motion for summary judgment on the CVPIA affirmative defense is DENIED.

IV. CONCLUSION

For the reasons set forth above, Plaintiffs' motion for summary adjudication is GRANTED as to the injury-in-fact prong of Article III standing, but denied as to all other aspects of standing. Plaintiffs' motion for summary judgment is also DENIED as to Section 9 liability and the CVPIA affirmative defense.

State Defendant shall submit a form of order consistent with this memorandum decision within five (5) days from electronic service.

A further scheduling conference is set for Tuesday, July 27, 2010 at 9:00 a.m. in Courtroom 3 (OWW). Counsel may appear telephonically.

SO ORDERD

DATED: July 21, 2010