# Natural Res. Def. Council v. Zinke

> District Court, E.D. California · September 28, 2018 · 347 F. Supp. 3d 465

URL: https://www.frixlaw.com/law-library/cases/7251078

## Case

- **Full name:** NATURAL RESOURCES DEFENSE COUNCIL v. Ryan ZINKE, Secretary, U.S. Department of the Interior, San Luis & Delta Mendota Water Authority, Defendant-Intervenors. Anderson-Cottonwood Irrigation District, Joined Parties.
- **Court:** District Court, E.D. California
- **Decided:** September 28, 2018
- **Citations:** 347 F. Supp. 3d 465
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Lawrenceneill
- **Judges:** Lawrence, Neill
- **Cited by:** 7 later opinions in the Frix Law Library

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## Opinion text

Lawrence J. O'Neill, UNITED STATES CHIEF DISTRICT JUDGE
*473 I. INTRODUCTION
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. The remaining claims in the case 1 allege that the renewal, implementation, and approval of renewal and implementation of certain long-term water contracts violate the ESA and/or APA. Id.
Before the Court for decision are cross-motions for summary judgment on the second, fourth, and sixth claims for relief in the 6SC. The fourth claim for relief alleges a 2015 Letter of Concurrence ("2015 LOC") authored by FWS was the culmination of an inadequate ESA consultation regarding the effects of certain long-term contract renewals on delta smelt. 6SC at ¶¶ 189-194. The second claim for relief alleges that Reclamation acted unlawfully by accepting the 2015 LOC and implementing the long-term water supply contracts in reliance on the 2015 LOC. Id. at ¶¶ 176-182 . The sixth claim for relief alleges that some holders of a certain type of long-term water contract, known as Sacramento River Settlement Contracts ("SRS Contracts" or "SRS Contractors" when referring to the holders), and Reclamation violated the ESA'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 in the Upper Sacramento River in 2014 and 2015. Id. at ¶¶ 201-205 .
The motions concerning the second and fourth claims are limited to the administrative *474 record ("AR"), 2 while review of the sixth claim is not. 3 Because the sixth claim is set for a bench trial beginning March 5, 2019, see ECF No. 1194, in the interest of expedience, the Court addresses the motions that pertain to the sixth claim in this Memorandum Decision and Order, leaving the remaining matters for separate resolution.
II. PROCEDURAL HISTORY
The Court has reviewed the factual and procedural history of this case in painstaking detail in prior orders. See Nat. Res. Def. Council v. Norton , 236 F.Supp.3d 1198 , 1203-10 (E.D. Cal. 2017) (" NRDC v. Norton ") (ECF No. 1069 at 5-15). That review is incorporated herein by reference. Upon resolution of the most recent round of motions to dismiss, only certain aspects of the sixth claim for relief remain. First, as mentioned, Plaintiffs allege that the named SRS Contractor Defendants caused substantial temperature-dependent mortality of winter-run and spring-run Chinook salmon by diverting and transferring water pursuant to the terms of the SRS Contracts in 2014 and 2015, without an appropriate permit under the ESA. See 6SC ¶ 204. Only two narrow aspects of the Section 9 claim remain pending against Reclamation: that Reclamation unlawfully "took" ESA-listed salmonids by (1) approving water transfers SRS Contractors to others in 2014 and 2015; and (2) by failing to require one SRS Contractor, the Glenn Colusa Irrigation District ("GCID"), to divert a certain volume of water from Stony Creek, rather than directly from the Sacramento River, during those same years. See NRDC v. Norton , 236 F.Supp.3d at 1240 .
III. LEGAL STANDARDS
A. General Summary Judgment Standard
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). At summary judgment, a court's function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242 , 249, 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986). The Court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations. See id. at 255 , 106 S.Ct. 2505 ; see also Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133 , 150, 120 S.Ct. 2097 , 147 L.Ed.2d 105 (2000). But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. Anderson , 477 U.S. at 249 -50 , 106 S.Ct. 2505 . A fact is "material" if its proof or disproof is essential to an element of a plaintiff's case. Celotex Corp. v. Catrett , 477 U.S. 317 , 322-23, 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986). "[T]the substantive law will identify which facts are material." Anderson , 477 U.S. at 248 , 106 S.Ct. 2505 . "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. A factual dispute is "genuine" "if the evidence is such that a reasonable jury could *475 return a verdict for the nonmoving party." Id. at 248 , 106 S.Ct. 2505 . "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574 , 587, 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986) (internal citation omitted).
The moving party bears the initial burden of informing the Court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact for trial. Celotex , 477 U.S. at 323 , 106 S.Ct. 2548 . Put another way:
A moving party without the ultimate burden of persuasion at trial-usually, but not always, a defendant-has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. See 10A Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure § 2727 (3d ed.1998). In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. See High Tech Gays v. Defense Indus. Sec. Clearance Office , 895 F.2d 563 , 574 (9th Cir. 1990). In order to carry its ultimate burden of persuasion on the motion, the moving party must persuade the court that there is no genuine issue of material fact. See id.
Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc. , 210 F.3d 1099 , 1102 (9th Cir. 2000). If the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, set forth specific facts showing that there is some genuine issue for trial in order to defeat the motion. See Fed. R. Civ. P. 56(c) ; Anderson , 477 U.S. at 250 , 106 S.Ct. 2505 . "If a moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial." Nissan Fire , 210 F.3d at 1102-1103 ; see Adickes v. S.H. Kress & Co. , 398 U.S. 144 , 90 S.Ct. 1598 , 26 L.Ed.2d 142 (1970).
B. General ESA Framework
"Under the ESA, the Secretary of the Interior and the Secretary of Commerce are charged with identifying threatened and endangered species and designating critical habitats for those species." Nat. Res. Def. Council v. Jewell , 749 F.3d 776 , 779 (9th Cir. 2014) (" NRDC v. Jewell ") (citing 16 U.S.C. § 1533 ). FWS and the National Marine Fisheries Service ("NMFS") administer the ESA on behalf of the Departments of the Interior and Commerce, respectively 4 . See 50 C.F.R. §§ 17.11 , 222.101(a), 223.102, 402.01(b). The district court in Environmental Protection Information Center, Inc. v. Pacific Lumber Co ., summarized succinctly the relationship *476 between the sections of the ESA pertinent to the present motion:
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 unless an incidental take permit ("ITP") or other exemption is obtained pursuant to section 10 of the ESA. 16 U.S.C. § 1538 . In order to qualify for an ITP, a permit applicant must submit a habitat conservation plan that includes, among other things, the steps an applicant will take to minimize and mitigate impacts on endangered species and alternative actions being considered. 16 U.S.C. § 1539 (a)(2)(A).
Section 7(a)(2) imposes a procedural duty on the federal agencies to consult with the FWS or NMFS, depending on the protected species, 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). An agency "action" is defined to mean all activities carried out by federal agencies, including, among other things, the granting of licenses and permits. See 50 C.F.R. § 402.02 . "If a contemplated agency action may affect a listed species, then the agency must consult with the Secretary of the Interior, either formally or informally." American Rivers [v. NMFS] , 126 F.3d [1118,] 1122 [ (9th Cir. 1997) ].
67 F.Supp.2d 1113 , 1117-18 (N.D. Cal. 1999), vacated in part on other grounds , 257 F.3d 1071 (9th Cir. 2001).
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. § 1536(a)(2), then the action may not go forward unless the wildlife agency can suggest a "reasonable 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 taking 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).
A related provision contained within ESA Section 10 governs incidental take by private parties and authorizes FWS and NMFS to issue an "Incidental Take Permit"
*477 ("ITP") "under such terms and conditions as [the service] may prescribe." 16 U.S.C. § 1539 (a)(1). As with an ITS, an ITP may excuse take that "is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." Id. § 1539(a)(1)(B). An applicant for an ITP must submit a habitat conservation plan demonstrating that the take "will not appreciably reduce the likelihood of the survival and recovery [of the species] in the wild." Id. § 1539(a)(2)(B)(iv).
IV. FACTUAL BACKGROUND RELEVANT TO THE SIXTH CLAIM
The sixth claim for relief concerns water diversions made pursuant to SRS Contracts held by 28 of the more than 140 SRS Contractors. Plaintiffs' Statement of Undisputed Facts ("PSUF"), ECF Nos. 1210-2 & 1224, 5 # 48; Federal Defendants' Response to PSUF ("FDR"), ECF No. 1210-2, # 48; SRS Contractors' Response to PSUF ("SRSR"), ECF No. 1224, # 48. Understanding the relationship between the SRS Contractors and the United States requires some historical context the Court draws from an earlier decision in this case for background purposes only:
Prior to the construction of the [Central Valley Project ("CVP") ], the SRS Contractors (or their predecessors-in-interest) were lawfully diverting water from the Sacramento River. They divert water at their own diversion facilities located upstream from the Delta. The SRS Contractors claim the right to divert a significant portion of the water ... available for appropriation in the Sacramento River, particularly during the irrigation season (April through October).
The SRS Contractors became concerned that the construction of the CVP's Shasta Division would interfere with their pre-existing water rights and uses. Resolution of the dispute involved 20 years of negotiations, protracted technical studies, State of California and Congressional hearings, and intervention by representatives of the Secretary of the Interior.
Under Reclamation law, the Bureau had to obtain water rights permits from the State of California in order to operate the CVP. In Decision 990, the State Water Rights Board (the "Board"-a predecessor to the State Water Resources Control Board ("SWRCB") ) granted the Bureau permits to appropriate water from the Sacramento River, but directed the United States to reach a settlement agreement with the Sacramento River water users who held "existing rights" in the Sacramento River:
Throughout these proceedings, the Bureau's representatives have consistently affirmed their policy to recognize and protect all water rights on the Sacramento River and the Delta existing under State law at the times these applications were filed, including riparian, appropriative and others.... It is imperative, therefore, that the holders of existing rights and the United States reach agreement concerning those rights and the supplemental water required to provide the holders with a firm and adequate water supply, if a lengthy and extremely costly adjudication of the waters of the Sacramento River and its tributaries is to be avoided.
*478 Decision 990, at 75 (emphasis added) ....
Congress also urged the Bureau to reach an agreement with the SRS Contractors. In 1951, the House Interior and Insular Affairs Committee issued a report recognizing the growing possibility of conflict between existing Sacramento River water users and the nascent CVP, urging the Bureau to avoid litigation. See Engle, CVP Documents, Part I, S. Res. 1, 84th Cong. (2d Sess.), H.R. Res. 416 at 675-783 (1956) ....
... Congress expressed its concern about the possibility that the CVP could become involved in "[a] monstrous lawsuit ... that would embroil the [CVP] in litigation for decades." Id. On the one hand, the Report acknowledges that the Bureau promised "that no water which is needed in the Sacramento Valley will be sent out of it," ( id. at 678), and that "instead of firm water rights necessary for the operation of the [CVP] the Bureau ... had in effect merely 'four pieces of paper' which the State of California ... in effect said the Bureau should 'take to court' to find out if it has any water rights," ( Id. at 682) ....
Operating under these generic commands from Congress and the Board, the United States reached agreement with Settlement Contractors and executed the first SRS Contract in 1964. The SRS Contracts define the manner in which the parties agreed to administer their respective legal entitlements to Sacramento River water, to avoid conflict while preserving the rights of either party in any subsequent water right litigation.
Under the Settlement Contracts, the SRS Contractors continue to divert directly from the Sacramento River and its tributaries, with their own facilities, as they have historically done. However, the SRS Contracts ceded the Bureau some authority over the timing of the SRS Contractors' diversions. In exchange for the SRS Contractors giving up some of their flexibility in the timing of their diversions, the Bureau agreed to make stored water available to the Settlement Contractors during the lower flow (summer) months.
It is undisputed that, historically, the execution of the SRS Contracts facilitated the Bureau's ability to operate the CVP, by providing the CVP with certainty as to the availability of water needed to schedule Project releases and deliveries throughout each water year.
Nat. Res. Def. Council v. Kempthorne , No. 1:05-CV-01207 OWW TAG, 2008 WL 5054115 , at *24-27 (E.D. Cal. Nov. 19, 2008) (internal record citations omitted), superseded in part and clarified on other grounds in numerous orders .
In 2005, Reclamation renewed more than 140 SRS Contracts for a period of 40 years each. FDR # 48. The evidence in the present case confirms that all of the SRS Contracts in combination, including those held by SRS Contractors not party to this case, provide for diversion of up to approximately 2.1 million acre feet (a single acre-foot 6 is referenced as "AF"; a million acre feet is referenced as "MAF") of water each year from the Sacramento River. PSUF # 50. The SRS Contracts held by defendants account for more than 94 percent of that total. SRSR # 55. Of note for this case, the SRS Contracts provide in Article *479 5 that in a "Critical Year," 7 the Contract Total shall be reduced by 25 percent. 8 SRSR # 52.
In a very general sense, the SRS Contracts require Reclamation to furnish water to each SRS Contractor in accordance with a written monthly schedule submitted by the SRS Contractor. PSUF # 51. Reclamation stores water behind Shasta Dam from where it may be released into Keswick Reservoir, which sits downriver of Shasta Dam. See Declaration of Lee Bergfeld ("Bergfeld Decl."), ECF No. 1211 at ¶ 5; see also BOR 7777 (map of upper Sacramento River facilities). 9 When an SRS Contractor schedules a diversion of water, Reclamation makes releases from Keswick Dam to ensure sufficient water is flowing down the Sacramento River to permit the scheduled diversions. See Bergfeld Decl. ¶ 5. This process requires Reclamation to take into consideration a wide range of factors, including other legal and contractual obligations pertaining to water operations. Id. It is also possible that the volume of water diverted under an SRS Contract may include water that was not released from Keswick Reservoir but was instead available from a downstream tributary source. Id. at 8 .
Both species of concern to Plaintiffs, the winter-run and spring run Chinook, presently are listed under the ESA. PSUF ## 94, 104. NMFS also has designated critical habitat for both species. Winter-run critical habitat includes the portion of the Sacramento River from Red Bluff Diversion Dam to Keswick Dam. PSUF # 95. Winter run spawn between mid-April and mid-August and fry emerge from their eggs from late June through October. BOR 7675; SRSR # 102. Spring-run critical habitat includes portions of the upper Sacramento River. PSUF # 105. Spring-run spawn in September and October. BOR 7689.
In 2009, NMFS issued a Biological Opinion ("BiOp") under the ESA evaluating the impact of CVP/SWP operations on various species under NMFS jurisdiction, including the winter-run and spring-run ("2009 NMFS OCAP BiOp" or "NMFS BiOp"). PSUF # 109. 10 The NMFS BiOp indicates *480 that winter-run salmon spawn and rear in the reaches of the Sacramento River below Keswick Dam, BOR 7675, and that a population of spring-run Chinook salmon also spawns and rears in the mainstem Sacramento River below Keswick, with other spring-run populations spawning and rearing in tributaries of the Sacramento River and other watercourses. BOR 7695. The NMFS BiOp provides additional, helpful background information:
Alterations to the natural hydrologic systems of the Sacramento and San Joaquin River basins began in the late 1800s, accelerating in the early 1900s, including the construction of three dams owned and operated by Reclamation, a fourth dam owned and operated by the California Department of Water Resources (DWR), and a multitude of pumps and hundreds of miles of gravity-fed water diversions constructed and operated by private water users and by Reclamation and DWR. None of the major dams were constructed with fish ladders to pass anadromous fish and, as a result, salmon and steelhead have effectively been blocked from accessing the upper reaches of the basin. Beginning in 1993, Shasta and Keswick Dam releases on the upper Sacramento River have been managed to provide cold water to the spawning habitat below Keswick Dam as per requirements of NMFS' winter-run biological opinion on the operations of the CVP and SWP.
BOR 7626.
The NMFS BiOp further indicates that winter-run and spring-run are dependent, at least in part, upon sufficiently cold temperatures during certain periods of the year to ensure successful egg incubation and development. BOR 8185, 8279. In light of these and other findings, the NMFS BiOp concludes that, unless modified, the long-term operation of the CVP/SWP is likely to jeopardize the continued existence and adversely modify critical habitat for winter-run and spring-run. BOR 8170. However, NMFS set forth an RPA which NMFS "believes would enable the project to go forward in compliance with the ESA." Id. In introducing the RPA, which is wide-ranging and impacts many aspects of CVP/SWP operations, including in ways not directly relevant to this ruling, NMFS indicates:
Water operations result in elevated water temperatures that have lethal and sub-lethal effects on egg incubation and juvenile rearing in the upper Sacramento River. The immediate operational cause is lack of sufficient cold water in storage to allow for cold water releases to reduce downstream temperatures at critical times and meet other project demands. This elevated temperature effect is particularly pronounced in the Upper Sacramento for winter-run and mainstem spring-run .... The RPA includes a new year-round storage and temperature management program for Shasta Reservoir and the Upper Sacramento River, as well as long-term passage prescriptions at Shasta Dam and re-introduction of winter-run into its native habitat in the McCloud and/or Upper Sacramento rivers.
BOR 8171-72. The RPA describes an entire suite of actions addressing "Shasta Operations" in Action Suite I.2, the introduction of which helps set the stage for the dispute in this case:
*481 Maintaining suitable temperatures for egg incubation, fry emergence, and juvenile rearing in the Sacramento River is critically important for survival and recovery of the winter-run ESU. The winter-run ESU has been reduced to a single population, which has been blocked from its historical range above Shasta Dam. Consequently, suitable temperatures and habitat for this population must be maintained downstream of Shasta Dam through management of the cold water pool behind the dam in the summer. Maintaining optimum conditions for this species below Shasta is crucial until additional populations are established in other habitats or this population is restored to its historical range. Spring-run are also affected by temperature management actions from Shasta Reservoir.
The effects analysis in this Opinion highlights the very challenging nature of maintaining an adequate cold water pool in critically dry years, extended dry periods, and under future conditions, which will be affected by increased downstream water demands and climate change. This suite of actions is designed to ensure that Reclamation uses maximum discretion to reduce adverse impacts of the projects to winter-run and spring-run in the Sacramento River by maintaining sufficient carryover storage and optimizing use of the cold water pool. In most years, reservoir releases through the use of the [temperature control device] are a necessity in order to maintain the bare minimum population levels necessary for survival (Yates et al. 2008, Angilletta et al. 2008).
The effects analysis in this Opinion, and supplemental information provided by Reclamation, make it clear that despite Reclamation's best efforts, severe temperature-related effects cannot be avoided in some years. The RPA includes exception procedures to deal with this reality. Due to these unavoidable adverse effects, the RPA also specifies other actions that Reclamation must take, within its existing authority and discretion, to compensate for these periods of unavoidably high temperatures. These actions include restoration of habitat at Battle Creek that may be support a second population of winter-run, and a fish passage program at Keswick and Shasta dams to partially restore winter-run to their historical cold water habitat.
BOR 8185-86. The RPA sets as one of the primary goals of Action Suite I.2 ensuring "a sufficient cold water pool to provide suitable temperatures for winter-run spawning between Balls Ferry and Bend Bridge in most years, without sacrificing the potential for cold water management in a subsequent year," while acknowledging that other actions are needed to compensate for "increased vulnerability of the population to temperature effects" attributable to various factors. BOR 8186.
Important to this case is Action 1.2.4's call for Reclamation to develop and implement an annual "Temperature Management Plan," to "manage the cold water supply within Shasta Reservoir and to make cold water releases from Shasta Reservoir and Spring Creek to provide "suitable temperatures for listed species ...." BOR 8196. Specifically, this Action requires Reclamation to manage operations to achieve daily average water temperatures in the Sacramento River at specific "compliance locations" between Balls Ferry (25 river miles downstream of Keswick) and Bend Bridge (44 river miles downstream of Keswick)
[n]ot in excess of 56°F at compliance locations between Balls Ferry and Bend Bridge from May 15 through September 30 for protection of winter-run, and not in excess of 56°F at the same compliance *482 locations between Balls Ferry and Bend Bridge from October 1 through October 31 for protection of mainstem spring run, whenever possible.
Id. ; see also Declaration of Kate Poole ("Poole Decl."), Ex. 21 (ECF No. 1176-22) (showing temperature compliance points in terms of river miles from Keswick). Another temperature compliance point ("TCP") is identified at Clear Creek, located 10 river miles downstream of Keswick, upstream of Balls Ferry. BOR 8195; Poole Decl., Ex. 21.
The NMFS BiOp also sets forth targets for end-of-September ("EOS") storage in Shasta Reservoir. An earlier BiOp required Reclamation to maintain a minimum storage level of 1.9 MAF behind Shasta Dam "to protect the cold water pool in Shasta Reservoir, in case the following year was critically dry (drought year insurance). This was because a relationship exists between EOS storage and the cold water pool. The greater the EOS storage level, typically the greater the cold water pool." BOR 7676. Since 1997, Reclamation has been able to control water temperatures in the upper Sacramento River through use of at Temperature Control Device ("TCD") that was installed in Shasta Dam. Id. Thereafter, NMFS changed the 1.9 MAF storage "requirement" to a "target." Id. Modeling revealed that higher EOS targets improved the probability of meeting the temperature targets at the Balls Ferry TCP. BOR 7845. NMFS has indicated more recently that "the volume of cold water available for real-time management in June through October is highly dependent on Keswick releases in April through early June." BOR 12569.
The NMFS BiOp sets forth of "performance measures" related to TCPs and EOS Storage in Action 1.2.1, which the Court sets forth in their entirety due to their importance to the present disputes:
Action 1.2.1 Performance Measures.
Objective: To establish and operate to a set of performance measures for temperature compliance points and End-of-September (EOS) carryover storage, enabling Reclamation and NMFS to assess the effectiveness of this suite of actions over time. Performance measures will help to ensure that the beneficial variability of the system from changes in hydrology will be measured and maintained.
Action: The following long-term performance measures shall be attained. Reclamation shall track performance and report to NMFS at least every 5 years. If there is significant deviation from these performance measures over a 10-year period, measured as a running average, which is not explained by hydrological cycle factors (e.g., extended drought), then Reclamation shall reinitiate consultation with NMFS.
Performance measures for EOS carryover storage at Shasta Reservoir:
• 87 percent of years: Minimum EOS storage of 2.2 MAF
• 82 percent of years: Minimum EOS storage of 2.2 MAF and end-of-April storage of 3.8 MAF in following year (to maintain potential to meet Balls Ferry compliance point)
• 40 percent of years: Minimum EOS storage 3.2 MAF (to maintain potential to meet Jelly's Ferry compliance point in following year)
Measured as a 10-year running average, performance measures for temperature compliance points during summer season shall be:
• Meet Clear Creek Compliance point 95 percent of time *483 • Meet Balls Ferry Compliance point 85 percent of time
• Meet Jelly's Ferry Compliance point 40 percent of time
• Meet Bend Bridge Compliance point 15 percent of time
Rationale: Evaluating long-term operations against a set of performance measures is the only way to determine the effectiveness of operations in preserving key aspects of life history and run time diversity. For example, maintaining suitable spawning temperatures down to Bend Bridge in years when this is feasible will help to preserve the part of winter-run distribution and run timing that relies on this habitat and spawning strategy. This will help to ensure that diversity is preserved when feasible ....
BOR 8187.
The BiOp also prescribes various actions Reclamation must undertake under various EOS storage scenarios. Under all scenarios, NMFS is to develop Keswick release schedules and submit them to NMFS early in the water year. See BOR 8188-8191. In addition, for example, if EOS storage is at 1.9 MAF or below, indicative of periods of drought, the NMFS BiOp requires certain actions designed to preserve the cold water pool in Shasta Reservoir "to the maximum extent possible, in order to increase the probability of maintaining cold water supplies necessary for egg incubation for the following summer's cohort of winter-run." BOR 8191. The NMFS BiOp provides for "Drought Exception Procedures" if maintaining temperature compliance at Clear Creek is not possible and/or if 1.9 MAF EOS storage is not achievable. BOR 8195. These exception procedures require Reclamation to provide NMFS with a contingency plan and written justification "that all actions within Reclamation's authorities and discretion are being taken to preserve cold water at Shasta Reservoir for the protection of winter-run," along with other requirements, including notification to the SWRCB that "meeting the biological needs of winter-run and the needs of resident species in the Delta, delivery of water to nondiscretionary Sacramento Settlement Contractors, and Delta outflow requirements per D-1641, may be in conflict in the coming season and requesting the Board's assistance in determining appropriate contingency measures...." Id.
The NMFS BiOp contains an entire section setting forth an ITS that permits "incidental take" ( i.e. , exempts from Section 9 liability) associated with at least a portion of CVP/SWP operations, provided that Reclamation and DWR implement certain RPMs and terms and conditions set forth within the ITS. BOR 8322-8380. By its own terms, the ITS
is applicable to all activities related to the long-term operations of the CVP and SWP, as described in appendix 1 to this [BiOp] and revised by the proposed RPA in section 11 ... including dams and reservoirs, power plants and pumping facilities, administration of water contracts, implementation of habitat mitigation measures, operation of hatchery programs, fish salvage facilities, and research and monitoring activities.
BOR 8323. However, the ITS specifically disclaims coverage for nondiscretionary water deliveries as follows:
In the event that Reclamation determines that delivery of quantities of water to any contractor is nondiscretionary for purposes of the ESA, any incidental take due to delivery of water to that contractor would not be exempted from the ESA section 9 take prohibition in this [BiOp].
*484 BOR 8324. Based in part on this language, this Court previously held that the ITS does not provide take protection to Reclamation for non-discretionary deliveries under the SRS Contracts. NRDC v. Norton , 236 F.Supp.3d at 1235 . Relatedly, it appears to be undisputed that no ITP has been issued to any SRS Contractor (or anyone else) related to the diversion of water pursuant to the mandatory delivery provisions of the SRS Contractors.
It is with all this in mind that the case turns to the events of 2014 and 2015. According to SWRCB hydrologic classifications, 2012 was considered a "below normal" year, 2013 was a "dry" year, and 2014 was a "critical" year, with the latter designation triggering Article 5 of the SRS Contracts for the first time since 1994. SRSR # 138. In February 2014, Reclamation projected that the Clear Creek temperature compliance point "did not appear to be achievable" and therefore that the NMFS BiOp RPA required development of a drought contingency plan to be submitted to NMFS by March 1, 2014. FDR # 139 (citing BOR 8859).
The SRS Contractors named in the 6SC diverted 270,089 AF of water in May 2014, 264,641 AF in June, and 284,773 in July. SRSR # 147. In addition, also in the spring of 2014, Reclamation designated for transfer certain volumes of SRS Contract water to other water users. PSUF # 148. Some of this water was transferred in the months of designation, while other volumes were designated as transfer water but delivery was deferred to other months. It is difficult to discern from the present record exactly the volumes of water released for immediate transfer in the spring, but Federal Defendants have admitted to transferring more than 40,000 AF in April through June 2014, ECF No. 1210-1 at 37 n.25, with an additional 21,000 AF in July 2014. 11 In total, it appears that Reclamation approved 12 for transfer and actually transferred more than 100,000 AF of SRS Contract water by the end of the 2014 water year. 1 BOR 10859.
Plaintiffs assert that "water to satisfy the SRS Contractors' diversions and transfers" totaled 900,000 AF in May through July 2014 and that this represented more than two-thirds of the more than 41.3 MAF total water releases from Keswick during that timeframe. PSUF # 150. Taking the more 5 conservative numbers related to transfer water discussed above ( i.e. , counting only water that was 6 actually released for transfer, rather than all water designated for transfer) during that time period, the 7 total released "to satisfy the SRS Contractors" nonetheless exceeded 880,000 AF. Likewise accepting 8 the SRS Contractors' evidence indicating that the total volume of water released from Keswick from 9 May through July was more than 1.6 MAF, SRSR # 150, the ratio of water released related to the SRS 10 Contracts versus overall releases is still more than half. But, the relationship between Keswick releases 11 and the SRS Contracts is complex. As pointed out by the SRS Contractors, some water diverted under 12 SRS Contractors named in the 6SC may include water that was not released from Keswick but rather 13 was available from a downstream tributary source; relatedly, Reclamation is required by the NMFS 14 BiOp to make potentially large minimum releases (possibly as much as *485 193,400 AF a month) of water 15 from Keswick for other purposes. 13 Id.
According to records kept by Reclamation, by August 2014, daily average temperatures at Clear Creek exceeded 56°F on more than half of the days of the month, with a monthly average of 56.1°F; in 18 September the average daily temperature was 58.5°F; and for the month of October, the daily average 19 temperature rose to 61.0°F. FDR # 155 (citing records available at 20 https://www.usbr.gov/mp/cvo/temperature.html (last visited Sept. 24, 2018) ).
By the end of September 2014, EOS storage in Shasta Reservoir was 1.157 MAF. SRSR # 161.
The record reflects that by early 2015, Reclamation concluded that "[t]he effects of limited cold water storage and loss of temperature control out of Keswick Dam from early September through the fall of 2014 led to substantial egg and fry mortality." BOR 13442. NMFS similarly concluded that "the egg and fry life history stages of winter-run in broodyear 2014 experienced approximately 95% temperature-related mortality last year - far greater than what was predicted by last year's forecast." BOR 12531.
A similar pattern was observed in 2015, which was once again designated a "Critical Year." See PSUF # 167 (referencing BOR 12869-70, which discusses 2015 as a Critical Year). In February 2015, Reclamation forecasted that EOS Shasta Reservoir storage would be approximately 1.3 MAF, triggering RPA 1.2.3.C's drought contingency procedures. FDR # 166. Corresponding Sacramento River temperature modeling indicated that 56 degrees Fahrenheit could not be achieved through the season at the Clear Creek TCP. Id.
The SRS Contractors named in the 6SC diverted 82,476 AF of water in April 2015; 249,660 AF in May; 264,641 AF in June; and 256,422 AF in July. SRSR # 180. In addition, Reclamation approved for transfer more than 25,000 AF of water in May 2015, more than 40,000 AF in June, and more than 38,000 AF in July. PSUF # 181. It appears, however, that the volumes of water approved for transfer in May and June 2015 may not have actually been transferred until later in the water year. SRSR # 181. That 38,000 AF was actually transferred in July appears to remain undisputed. Id.
In April and May of 2015, daily average temperatures at the Clear Creek compliance point remained below 56°F. FDR # 188. In June 2015, daily average temperatures at the Clear Creek temperature compliance point exceeded 56°F on all but one day of that month. Id. (citing records available at https://www.usbr.gov/mp/cvo/vungvari/sactemprpt_0615.pdf (last visited Sept. 24, 2018) ). But, as Federal Defendants point out, the temperature threshold was adjusted up to 58°F from June 5 through the end of that month. FDR # 189. On July 1, 2015, NMFS formally approved Reclamation's proposal to target an average water temperature of "57°F at [Clear Creek], not to exceed 58°F unless going above is needed to conserve water pool based on real-time temperature management team guidance," subject to certain other conditions. BOR 12566-12582. The average daily temperature at Clear *486 Creek was 57.1°F for July 2015, 56.9°F for August, 56.7°F for September, and 56.8°F for October of 2015. BOR 13480-83.
By the end of the 2015 season, fisheries agencies estimated that winter-run Chinook egg and fry mortality had reached more than 97%. Poole Decl., Ex. 64 (ECF No. 1178-18) (NOAA Fisheries presentation indicating few winter-run eggs in 2015 survived due to "very little cold water in Shasta to cool the upper Sacramento"); Ex. 83 (ECF No. 1179-12) at 1, 3-4 (NMFS describing an 85% temperature dependent mortality to winter-run in 2015); Ex. 72 (ECF No. 1179-1) at 1 (indicating juvenile spring-run likely suffered higher than average mortalities in the mainstem Sacramento River).
V. APPLICABLE CAUSATION STANDARDS
As mentioned, Section 9 of the ESA makes it unlawful for "any person" to "take" a listed species. 16 U.S.C. § 1538 (a)(1)(B). The term "take" means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Id. § 1532(19). As used in the statutory definition of "take," the term "harm" is further defined by regulation to mean "an act which actually kills or injures fish or wildlife. Such an act may include significant habitat modification or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering." 50 C.F.R. § 222.102 .
In applying the take prohibition of Section 9, courts apply concepts from tort law. For example, it is well established that principles of proximate cause apply to Section 9 claims. See Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or. , 515 U.S. 687 , 700 n.13, 115 S.Ct. 2407 , 132 L.Ed.2d 597 (1995) ; see also United States v. Glenn-Colusa Irr. Dist. , 788 F.Supp. 1126 , 1133-34 (E.D. Cal. 1992) (indicating federal common law, rather than state law regarding tort principles applies to Section 9 claims). As the Supreme Court has held in a different context, "to say one event proximately caused another is a way of making two separate but related assertions." Paroline v. United States , 572 U.S. 434 , 444, 134 S.Ct. 1710 , 188 L.Ed.2d 714 (2014). "First, it means the former event caused the latter. This is known as actual cause or cause in fact." Id.
The concept of actual cause "is not a metaphysical one but an ordinary, matter-of-fact inquiry into the existence ... of a causal relation as laypeople would view it." 4 F. Harper, F. James, & O. Gray, Torts § 20.2, p. 100 (3d ed. 2007).
Id. Second, because "[e]very event has many causes ... only some of them are proximate, as the law uses that term." Id. "So to say that one event was a proximate cause of another means that it was not just any cause, but one with a sufficient connection to the result." Id.
The idea of proximate cause, as distinct from actual cause or cause in fact, defies easy summary. It is "a flexible concept," Bridge v. Phoenix Bond & Indemnity Co. , 553 U.S. 639 , 654, 128 S.Ct. 2131 , 170 L.Ed.2d 1012 (2008), that generally "refers to the basic requirement that ... there must be 'some direct relation between the injury asserted and the injurious conduct alleged,' " CSX Transp., Inc. v. McBride , 564 U.S. [685, 707, 131 S.Ct. 2630 , 180 L.Ed.2d 637 ] (2011) (Roberts, C.J., dissenting) (quoting Holmes v. Securities Investor Protection Corporation , 503 U.S. 258 , 268, 112 S.Ct. 1311 , 117 L.Ed.2d 532 (1992) ). The concept of proximate causation is applicable in both criminal and tort law, and the analysis is parallel in many instances. 1 *487 W. LaFave, Substantive Criminal Law § 6.4(c), p. 471 (2d ed. 2003) [ ]. Proximate cause is often explicated in terms of foreseeability or the scope of the risk created by the predicate conduct. See, e.g., ibid. ; 1 Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 29, p. 493 (2005) (hereinafter Restatement).
Id. at 444-45, 134 S.Ct. 1710 . "A requirement of proximate cause thus serves, inter alia , to preclude liability in situations where the causal link between conduct and result is so attenuated that the consequence is more aptly described as mere fortuity." Id. at 445 , 134 S.Ct. 1710 (internal citation omitted). Whether a court should impose a requirement of proximate cause upon a statutory cause of action, as opposed to a less restrictive requirement of factual cause alone, is a matter of statutory interpretation. See id. at 446 , 134 S.Ct. 1710 . As mentioned, it is well established that proximate cause applies to Section 9. See Sweet Home , 515 U.S. at 700 n.13, 115 S.Ct. 2407 ; see also Cascadia Wildlands v. Kitzhaber , 911 F.Supp.2d 1075 , 1084 (D. Or. 2012) ("It is well accepted that proximate cause is an element of ESA Section 9 claims."); see also Seattle Audubon Soc'y v. Sutherland , 2007 WL 1300964 , *11 (W.D. Wash. May 1, 2007) (" Sweet Home established that proximate causation is a relevant consideration of the ESA inquiry").
A. Causation in Fact
The Parties dispute how exactly the "causation in fact" standard should be applied in the present case. The SRS Contractors argue that proof of actual causation under the ESA must meet a strict "but-for" test of causation, which requires proof that harm would not have occurred but for the defendants' action. ECF No. 1225 at 30 (citing Sweet Home , 515 U.S. at 700 n.13, 115 S.Ct. 2407 ). Plaintiffs seem to recognize that strict but-for causation may be difficult to establish in this case, where impacts to listed species likely are measurable (if at all) only as the result of aggregate diversions by a group of defendants. Plaintiffs maintain that strict but-for causation is not required here, citing the Supreme Court's 2014 decision in Paroline v. United States , 572 U.S. 434 , 134 S.Ct. 1710 , 188 L.Ed.2d 714 (2014), as well as the Federal Register notice promulgating the harm definition set forth in 50 C.F.R. § 222.102 : Endangered and Threatened Wildlife and Plants; Definition of "Harm," 64 Fed. Reg. 60727 -01 (Nov. 8, 1999). ECF No. 1184 at 32-33.
Plaintiffs' reference to Paroline merits close examination. In Paroline , the Supreme Court addressed whether strict "but-for" causation should be required to demonstrate causation in fact under 18 U.S.C. § 2259 , the restitution provisions of the federal criminal statute that prohibits possession of images of child pornography. 572 U.S. at 449 -50 , 134 S.Ct. 1710 . The Court recognized that the "traditional way to prove that one event was a factual cause of another is to show that the latter would not have occurred 'but for' the former." Id. However, a showing of but-for causation could not be made against Paroline because, given that the defendant was an anonymous possessor of images in wide circulation on the internet, "it [could not] be shown that [the victim's] trauma and attendant losses would have been any different but for Paroline's offense." Id. at 450 , 134 S.Ct. 1710 . Therefore, the victim and the government urged application of a less restrictive causation standard. Id. at 451 , 134 S.Ct. 1710 . The Court noted that the "most common" exception to the but-for causation requirement is applied where "multiple sufficient causes independently ... produce a result." Id. (internal citations omitted). That was rejected as an "ill *488 fit" to the circumstances because "Paroline's possession of two images of the victim was surely not sufficient to cause her entire losses from the ongoing trade in her images. Nor is there a practical way to isolate some subset of the victim's general losses that Paroline's conduct alone would have been sufficient to cause." Id.
As an alternative, the Court examined a causal test strikingly similar to the one advanced by Plaintiffs here: "[w]hen the conduct of two or more actors is so related to an event that their combined conduct, viewed as a whole, is a but-for cause of the event, and application of the but-for rule to them individually would absolve all of them, the conduct of each is a cause in fact of the event." Id. at 451 , 134 S.Ct. 1710 (citing W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 41, p. 268 (5th ed. 1984) ). The Court also discussed a "similar exception" for "[m]ultiple sufficient causal sets," set forth in 1 Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 27, Comment f, at 380-381. Paroline , 572 U.S. at 451 -52 , 134 S.Ct. 1710 . At the Court explained:
This is where a wrongdoer's conduct, though alone "insufficient ... to cause the plaintiff's harm," is, "when combined with conduct by other persons," "more than sufficient to cause the harm." The Restatement offers as an example a case in which three people independently but simultaneously lean on a car, creating enough combined force to roll it off a cliff. Even if each exerted too little force to move the car, and the force exerted by any two was sufficient to the move the car, each individual is a factual cause of the car's destruction.
Id. at 452 , 134 S.Ct. 1710 (internal citations omitted). The Supreme Court explained that such alternative causal tests are necessary in some circumstances to "vindicate the law's purposes."
It would be anomalous to turn away a person harmed by the combined acts of many wrongdoers simply because none of those wrongdoers alone caused the harm. And it would be nonsensical to adopt a rule whereby individuals hurt by the combined wrongful acts of many (and thus in many instances hurt more badly than otherwise) would have no redress, whereas individuals hurt by the acts of one person alone would have a remedy.
Id.
Yet, the Paroline Court warned that "[t]hese alternative causal standards, though salutary when applied in a judicious manner, also can be taken too far." Id. Specifically, the Court found it would be inappropriate to impose full restitution upon the defendant for the entire aggregately caused harm to the victim, in part because there was no language expressing suggesting Congress intended such an approach, particularly in the context of criminal restitution, which serves "purposes that differ from (though they overlap with) the purposes of tort law," keeping in mind the "bedrock principle that restitution should reflect the consequences of the defendant's own conduct." Id. at 453 , 134 S.Ct. 1710 .
Nonetheless, although the Court rejected the suggestion that the victim's entire losses from the ongoing trade in her images were "suffered ... as a proximate result" of Paroline's offense for purposes of restitution, the Court nonetheless found it would "produce anomalous results to say that no restitution is appropriate in these circumstances." Id. at 456-57 , 134 S.Ct. 1710 . Examining the harms the statute meant to prevent, and finding there was no doubt "Congress wanted victims to receive restitution for harms like this," the Court *489 found it "unacceptable to adopt a causal standard so strict that it would undermine congressional intent where neither the plain text of the statute nor legal tradition demands such an approach." Id. at 457-58 , 134 S.Ct. 1710 . The Court therefore held that "where it can be shown both that a defendant possessed a victim's images and that a victim has outstanding losses caused by the continuing traffic in those images but where it is impossible to trace a particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying § 2259 should order restitution in an amount that comports with the defendant's relative role in the causal process that underlies the victim's general losses." Id. at 458, 134 S.Ct. 1710 . Paroline therefore stands for the proposition that adopting a strict but-for causal standard would be inappropriate where doing so would conflict with congressional intent, but also that courts must be extremely cautious when applying alternative causal standards.
This must be harmonized with the Supreme Court's decision in Sweet Home , the only Supreme Court case addressing the causal standard under Section 9. In Sweet Home , the dissent asserted that the regulatory definition of harm 14 "dispenses with the foreseeability of harm." 515 U.S. at 731 , 115 S.Ct. 2407 (Scalia, J., dissenting). In footnote 13, the majority rejected this position:
[T]he regulation merely implements the statute, and it is therefore subject to the statute's "knowingly violates" language, see 16 U.S.C. §§ 1540 (a)(1), (b)(1), and ordinary requirements of proximate causation and foreseeability. Nothing in the regulation purports to weaken those requirements. To the contrary, the word "actually" in the regulation should be construed to limit the liability about which the dissent appears most concerned, liability under the statute's "otherwise violates" provision. 15 The Secretary *490 did not need to include "actually" to connote "but for" causation, which the other words in the definition obviously require.
515 U.S. at 700 n.13, 115 S.Ct. 2407 (citations omitted).
At first glance, this language seems incompatible with Plaintiffs' position on causation. However, it is important to recognize that the dispute before the Court in Sweet Home was a facial challenge to FWS's inclusion of "habitat modification" within the regulatory definition of "harm." Id. at 699 , 115 S.Ct. 2407 . Challengers, small landowners, logging companies, and families dependent on the forest products industries, argued that the regulation should have limited "harm" to "direct application of force against protected species." Id. at 697 , 115 S.Ct. 2407 . The Sweet Home majority rejected this position for several reasons. First, the Court held that "unless the statutory term 'harm' encompasses indirect as well as direct injuries, the word has no meaning that does not duplicate the meaning of other words [the ESA] uses to define 'take.' " Id. at 697-98 , 115 S.Ct. 2407 . Second, the broad purpose of the ESA supported the "decision to extend protection against activities that cause the precise harms Congress enacted the statute to avoid," id. at 698 , 115 S.Ct. 2407 , including provision of "a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved." Id. (quoting 16 U.S.C. § 1531 (b) ). Third, the fact that the 1982 amendments to the ESA permitted the issuance of permits for takings Section 9 would otherwise prohibit "if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity," strongly suggested that Congress understood Section 9 to prohibit indirect as well as direct takings. Id. at 700 , 115 S.Ct. 2407 . Finally, the Court concluded that FWS's interpretation of the statutory term "harm" found support in the legislative history of the ESA, which indicated "take" should be interpreted in "the broadest possible terms." Id. at 704 , 115 S.Ct. 2407 ; see also id. at 705 , 115 S.Ct. 2407 (discussing House Report that noted "take" included "harassment, whether intentional or not ") (emphasis in original). It was within the context of refusing to "invalidate the Secretary's understanding of 'harm' in every circumstance, even when an actor knows that an activity, such as draining a pond, would actually result in the extinction of a listed species by destroying its habitat," that the Supreme Court noted that the regulatory term "actually" requires "but-for" causation.
Is Footnote 13 dispositive even in light of Paroline's later and far more detailed (and thoughtful) exposition of exceptions to "but-for" causation? This presents a very difficult question. As in Paroline , the facts of this case may present a circumstance where but-for causation is impossible to prove as to at least some individual defendants. Yet, as the Sweet Home Court acknowledges, Congress intended "take" to be interpreted in "the broadest possible terms." The Court also notes that at least one of the concerns underpinning the "cautionary" mandate of Paroline is arguably unique to the restitution context, namely the fact that an expansive causation pathway in that context would undermine the "bedrock principle that restitution should reflect the consequences of the defendant's own conduct." 572 U.S. at 455 , 134 S.Ct. 1710 . In contrast, what Footnote 13 of Sweet Home seems most concerned with is avoiding the dissent's concern over imposing "strict liability" upon "routine" activities of landowners (e.g., farming, ranching, roadbuilding, construction and logging). This is avoided by requiring every cause to be proximate , not by imposing a strict "but-for" actual causation standard.
*491 On balance, the Court finds the most appropriate conclusion here is that strict but-for causation cannot be required under the circumstances. Any other finding would exclude categorically from Section 9 liability any party whose conduct is individually insignificant, but is collectively significant, no matter how foreseeable to each of the individual actors the collective consequences of their actions.
This conclusion finds support in the 1999 Federal Register notice promulgating an NMFS definition of "harm" substantially identical to the FWS definition upheld in Sweet Home several years earlier. 16 NMFS indicated that a "principal purpose" of promulgating the definition "is to provide clear notification to parties that habitat modification or degradation may harm listed species and, therefore, constitute a 'take' under the ESA." 64 Fed. Reg. at 60,730 . NMFS provided a list of several examples of "habitat-modifying activities that may fall within the scope" of the definition, including "[r]emoving water or otherwise altering streamflow when it significantly impairs spawning, migration, feeding or other essential behavioral patterns." Id. Pertinent to the causation inquiry, NMFS noted that "[i]n all instances a causal link must be established between the habitat modification and the injury or death of listed species." Id. In response to comments urging NMFS to specifically adopt the legal principles of "proximate cause" and "foreseeability" as limitations of liability for "harm" to listed species, NMFS responded:
NMFS agrees that the regulation does not create liability for hypothetical, speculative or conjectural injury as can be deduced from the term "actual." NMFS notes that that same term "actual" provides for cause-in-fact liability. NMFS' definition of "harm" is consistent with the views articulated in the opinion of the U.S. Supreme Court in Sweet Home v. Babbitt . In that opinion, the Court did not limit its discussion to a single term of art for the causal links necessary to show "harm" to a species resulting from habitat modification. The specific elements of causation to be proved, including foreseeability, will be determined on a case-by-case basis. Further, this document and the examples discussed in it, are intended to provide the public with information about activities which may result in injury or death of listed species. In NMFS' view, it is reasonably foreseeable that these activities and similar activities may injure or kill fish and wildlife, including listed species. While an action "harms" a listed species only if it actually results in the death or injury of a listed species, NMFS continues to encourage members of the public to consult with its staff whenever an activity is undertaken in the habitat of listed species and/or when listed species are present.
Id. at 60,729-30.
Another comment on the proposed rule expressed concern that "it is very difficult to determine when and whether modifications to aquatic habitat will injure fish. Sometimes it is activities occurring upstream from the apparent injury and sometimes it is simply cumulative degradation of the fish habitat." Id. at 60,728. NMFS responded by agreeing "that sometimes it is difficult to isolate factors causing *492 injury to listed species," and offered the following guidance:
All factors that reasonably could have caused the habitat modification or the injury itself must be carefully examined. Whenever an action alone or in combination with, or in concert with other actions is reasonably certain to injure or kill listed species, it will constitute a take. An action which contributes to injury can be a "take" even if it is not the only cause of the injury. This concept includes actions reasonably certain to contribute to the death or injury of listed species by significantly impairing the essential behavioral patterns of listed species.
Id. at 60,728. NMFS's position on the application of causation is entirely consistent with Plaintiffs' position here.
The Court finds Glenn-Colusa , 788 F.Supp. 1126 , is not dispositive on this issue. There, a district court in this District examined whether GCID's diversions from the Sacramento River, which at certain times made up "nearly one third of the river flow," caused "take" of winter run in violation of Section 9. Id. The district court found that GCID's pumping operations at its Hamilton City pumping facility proximately caused take of winter run fry which "may be impinged on [a fish] screen" installed to prevent fish from being drawn into the GCID's pumps, "entrained through the screen or fall prey to predation by other fish in [GCID's] diversion channel. Moreover, it is undisputed that winter-run salmon fry which safely negotiate their way through the screen, are 'taken' by [GCID's] pumps." Id. at 1129, 1133 . Ultimately, the district court issued an injunction precluding GCID from pumping water from the Sacramento River at its Hamilton City pumping plant from July 15 through November 30 (the winter run's peak downstream migration season). Id. at 1135-36 . GCID argued that California's causation standard, which permits a finding of causation where a defendant's conduct was a "substantial factor" in bringing about the injury, should apply to the ESA claim against GCID. Id. at 1133-34 . GCID maintained that, if the inquiry considered the "substantial factor" test, then the California Department of Fish and Game ("CDFG"), rather than GCID, was responsible for the take of winter run because CDFG installed the fish screens at which many of the winter-run fry perished. Id. at 1129, 1133-34 . The district court rejected this argument in part because GCID had presented no authority to support application of a state causation standard rather than federal common law. Id. at 1134 ("It is doubtful that Congress intended that the Endangered Species Act would apply differently in different states depending on state law definitions of proximate cause."). The Glenn-Colusa case predates both Sweet Home and, most importantly, Paroline , which substantially develops federal common law on the issue of causation.
In sum, the Court finds that it the facts and circumstances of this case, in light of Paroline and the purposes of the ESA, may require application of a relaxed but for causation standard, at least with respect to some defendants in this case. The Parties are directed to present their positions as to the appropriate causation standard the form of a motion in limine , as informed by the Parties' evolving understanding of the factual disputes as trial approaches.
B. Proximate Cause
In the context of the ESA, the proximate cause inquiry requires determining whether the alleged injury is fairly traceable to the challenged action of the defendants.
*493 Cascadia Wildlands , 911 F.Supp.2d at 1084 (citing standing analysis in Friends of the Earth, Inc. v. Laidlaw Envtl. Services (TOC), Inc. , 528 U.S. 167 , 180-81, 120 S.Ct. 693 , 145 L.Ed.2d 610 (2000) ). The Court of Appeals for the Fifth Circuit provided a succinct summary of the relevant Supreme Court jurisprudence in Aransas Project v. Shaw :
Proximate cause and foreseeability are required to affix liability for ESA violations. In the course of holding that "harm" under the ESA validly includes "significant habitat modification or degradation that actually kills or injures wildlife," 50 C.F.R. § 17.3 (1994), the Supreme Court squarely rejected the dissenters' assertions that a form of strict liability, unlimited by causal connection, could be imposed. Sweet Home , 515 U.S. at 690 -708 , 115 S.Ct. at 2409-2418 (Stevens, J., majority), 714-735, 115 S.Ct. at 2421-2430 (Scalia, J., dissenting). The Court reasoned that the ESA prohibits "takes" so long as they are "foreseeable rather than merely accidental." Sweet Home , 515 U.S. at 700 , 115 S.Ct. at 2414 . Indeed, the statute should be read to incorporate ordinary requirements of proximate causation and foreseeability. Id. at 696 n. 9, 700 n. 13, 115 S.Ct. at 2412 n. 9, 2414 n. 13 ("Nothing in the regulation purports to weaken [ordinary requirements of foreseeability and proximate cause]."). Justice O'Connor's concurrence elaborates that proximate cause, while "not susceptible of precise definition," is a concept that " 'normally eliminates the bizarre' " and has " 'functionally equivalent' alternative characterizations in terms of foreseeability ... and duty. Proximate causation depends to a great extent on considerations of the fairness of imposing liability for remote consequences." Id. at 713 , 115 S.Ct. at 2420 (citations omitted).
The Court was not asked to apply its proximate cause definition to the facts in Sweet Home , but acknowledged that "[i]n the elaboration and enforcement of the ESA, the Secretary and all persons who must comply with the law will confront difficult questions of proximity and degree." Id. at 708 , 115 S.Ct. at 2418 . Later, in Exxon Co., U.S.A. v. Sofec, Inc ., the Supreme Court affirmed that "proximate causation principles are generally thought to be a necessary limitation on liability." Exxon Co. , 517 U.S. 830 , 838, 116 S.Ct. 1813 , 135 L.Ed.2d 113 (1996). " 'In a philosophical sense, the consequences of an act go forward to eternity, and the causes of an event go back to the dawn of human events, and beyond.' " Id. (quoting W. Keeton, et al, Prosser and Keeton on the Law of Torts 264 (5th ed. 1984) ) [ ]. Nevertheless, the Exxon Court continued:
the careless actor will [not] always be held for all damages for which the forces that he risked were a cause in fact. Somewhere a point will be reached when courts will agree that the link has become too tenuous-that what is claimed to be consequence is only fortuity. Thus, if the [negligent] destruction of the Michigan Avenue Bridge had delayed the arrival of a doctor, with consequent loss of a patient's life, few judges would impose liability.
Id. at 838-39 , 116 S.Ct. at 1818 (quoting Petition of Kinsman Transit Co. , 338 F.2d 708 , 725 (2nd Cir.1964) (Friendly, J.), quoted in 1 T. Schoenbaum, Admiralty and Maritime Law § 5-3, at 164 (2d ed. 1994) ). Most recently, the Court reiterated that "[a] requirement of proximate cause thus serves, inter alia, to preclude liability in situations where the causal link between conduct and result is so attenuated that the consequence is more aptly described as mere fortuity."
*494 Paroline [, 572 U.S. at 445 , 134 S.Ct. 1710 ] (citing Exxon Co. , 517 U.S. at 838 -39 , 116 S.Ct. at 1818 ).
Applying a proximate cause limit to the ESA must therefore mean that liability may be based neither on the "butterfly effect" [FN] nor on remote actors in a vast and complex ecosystem. Justice O'Connor's concurrence in Sweet Home is instructive. It disavows foreseeability, and thus ESA liability, where a farmer tills his field, causes erosion that makes silt run into a nearby river, which depletes oxygen in the water, and thereby injures protected fish. Sweet Home , 515 U.S. at 713 , 115 S.Ct. at 2420 (O'Connor, J., concurring).
[FN] The "butterfly effect" is a theory of remote causation. Under this theory, present conditions are the result of a sting of events set off by a seemingly inconsequential act. An example is the idea that a butterfly stirring the air today in China can transform storm systems next month in New York. James Gleick, Chaos 8 (Penguin Books 1987). Edward N. Lorenz is credited to have coined the term in a speech. See Edward N. Lorenz, Predictability: Does the Flap of a Butterfly's Wings in Brazil Set Off a Tornado in Texas?, at the American Association for the Advancement of Science (Dec. 29, 1972), available at http://eaps4.mit.edu/research/Lorenz/Butterfly_1972.pdf.
775 F.3d 641 , 656-58 (5th Cir. 2014).
By way of example, "[m]istakenly shooting a wolf is the reasonably anticipated or foreseen natural consequence of knowingly shooting wildlife." WildEarth Guardians v. United States Dep't of Justice , 283 F.Supp.3d 783 , 812 (D. Ariz. 2017). Other courts have noted that proximate causation is "linked to foreseeability" in that it holds that defendant is "liable for all kinds of harms he foreseeably risked" by his conduct. Seattle Audubon v. Sutherland, No. CV-06-1608-MJP, 2007 WL 1300964 , at *11 (W.D. Wash. May 1, 2007) (citing Sweet Home , 515 U.S. at 713 , 115 S.Ct. 2407 ). "The definition of proximate cause is fluid, in part, because it merely reflects 'the limitation which the courts have placed upon the actor's responsibility for the consequences of the actor's conduct .... As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability.' " Id. (citations omitted). 17
The moving party's burden on summary judgment is to show that no reasonable trier of fact could find other than for them. Seattle Audubon , 2007 WL 1300964 , at *11-12 (citation omitted) (determining that there was a material dispute of fact as to proximate cause, noting that "[t]he Court cannot decide the proximate cause question as a matter of law" because "the alleged harm to spotted owls is not so remote or unforeseeable that the Court can conclude at this stage that State Defendants never proximately cause take when they approve certain forest practice applications"); see also Ctr. for Envtl. Sci. Accuracy & Reliability , 2016 WL 4524758 , at *28 (denying plaintiff's motion for summary judgment, concluding that undisputed evidence failed to establish proximate causation because it "implicate[d] multiple (tenuous) sources of harm"); Aransas Project v. Shaw , 835 F.Supp.2d 251 , 265, 273 (S.D. Tex. 2011) (concluding that there was a genuine issue of fact precluding summary judgment as to whether actions of state defendant in reducing water flow *495 negatively impacted the health of Whooping Cranes and thus was the proximate cause of a "take" of Whooping Cranes).
VI. ANALYSIS
A. Plaintiffs' Motion for Summary Judgment on the Section 9 Claim (Sixth Claim for Relief)
Plaintiffs move for summary judgment on the sixth claim for relief, asserting that the SRS Contractor defendants' diversions and transfers of water and Reclamation's approval of SRS Contractor water transfers took listed winter-run and spring-run Chinook salmon in 2014 and 2015. See generally ECF No. 1184 34-40. 18 Plaintiffs maintain that there are no material disputes of fact and that they are entitled to judgment as a matter of law as to the Section 9 claim against the SRS Contractors and Reclamation. Id. The SRS Contractors oppose summary judgment as to this claim; they do not cross-move for summary judgment. See ECF No. 1225 at 24-40. Federal Defendants, within a broader cross-motion for summary judgment, request dismissal of the Section 9 claim against Reclamation on various jurisdictional grounds, ECF No. 1210-1 at 26-34 and, in the alternative, summary judgment on the merits of the Section 9 claim against Reclamation. Id. at 35-40. Federal Defendants' cross-motion is dealt with separately below.
1. Evidentiary Disputes
The SRS Contractor Defendants object on numerous grounds to much of Plaintiffs' evidence pertaining to the sixth claim. Because the Court concludes infra that, even considering this evidence, Plaintiffs are not entitled to summary judgment against the SRS Contractors (or the Federal Defendants), the Court need not definitively resolve these objections herein. However, because it seems likely to come up at later stages of the case, the Court provides some guidance on one of the objections now.
Defendants direct a hearsay objection to a broad swath of documents relied upon by Plaintiffs. First, Defendants raise this hearsay objection regarding statements of fact premised entirely on the administrative record. See ECF No. 1224 at 2; e.g. , id . at # 95, 97. No party appears to have given a great deal of thought to how the hearsay prohibition applies in the context of the documents Plaintiffs seek to enter into evidence in support of their Section 9 claim.
If this claim were governed by the APA's record review rule, hearsay would not be an issue for documents within the AR. This is because the AR "is what it is." Koloff v. Metro. Life Ins. Co. , No. 1:13-CV-02060 LJO JL, 2014 WL 3420990 , at *4 n.6 (E.D. Cal. July 14, 2014) (internal citations omitted), report and recommendation adopted , No. 1:13-CV-02060-LJO-JLT, 2014 WL 12572872 (E.D. Cal. July 29, 2014). If the AR "contains hearsay that would be inadmissible in a court of law under the Federal Rules of Evidence, so be it." Id. The question before a court reviewing an agency decision under the APA is whether that decision was "arbitrary or capricious" or "contrary to law." The rules of evidence do not apply to what the agency may consider in reaching its decision. See id. "If they rely on unreliable evidence, then that could and should be considered by the reviewing court in making a determination as to whether" the APA has been violated. Id.
*496 Here, however, because the APA's record review strictures do not apply to the Section 9 claim, Nat. Res. Def. Council v. Zinke , No. 1:05-CV-01207-LJO-EPG, 2017 WL 3705108 , at *4 (E.D. Cal. Aug. 28, 2017) (" NRDC v. Zinke "); Stout v. U.S. Forest Serv. , 869 F.Supp.2d 1271 , 1276 (D. Or. 2012), the evidence must be treated in a more traditional manner. While an expert may rely on hearsay in forming his or her opinions, Fed. R. Evid. 703, Plaintiffs do not offer expert evidence at this stage of the case. However, they do cite Federal Rule of Evidence 803(8), which exempts from the hearsay prohibition:
A record or statement of a public office if:
(A) it sets out:
(i) the office's activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.
Plaintiffs appear to rely upon Rule 803(8) to assert that any "government document" on which they rely is therefore not subject to the rule against hearsay. See 1247-4 at 2-3. In support of this proposition, Plaintiffs cite Shorter v. Baca , 101 F.Supp.3d 876 , 906 (C.D. Cal. 2015), vacated on other grounds , 895 F.3d 1176 (9th Cir. 2018). Shorter applied Rule 803(8)(A)(iii) to exempt from the hearsay prohibition a report on jail violence issued by a citizens' commission formed by the Los Angeles County Board of Supervisors specifically to conduct a review of use of force in jails, finding that the report constituted "factual findings from a legally authorized investigation," and specifically noting that as to that form of public record, the law draws no distinction between "fact" and "opinion" contained within such reports. Id. (citing Beech Aircraft Corp. v. Rainey , 488 U.S. 153 , 164, 109 S.Ct. 439 , 102 L.Ed.2d 445 (1988) ). But, admissibility under any of the three alternatives discussed in 803(8)(A) is a fact-specific inquiry. While some records in the AR, such as tables recording water diversions, fish observations, temperatures, etc., appear likely to qualify under 803(8)(A)(ii) as "observations" made "under a legal duty to report," the application of 803(8) to other documents is not so obvious. Would an entire BiOp qualify under 803(8)(A)(ii) or (iii)? The Court thinks it unlikely. 19 Moreover, some of the documents on which Plaintiffs rely contain hearsay within hearsay. For example, Plaintiffs rely on third-party scientific papers attached to agency analyses. See , e.g. , Poole Decl., Ex. 58 (ECF No. 1178-12). To be admissible, both layers of hearsay would need to be addressed.
If disputes over documents the Parties intend to enter into evidence directly ( i.e. , without an expert) remain in advance of the bench trial, the Parties are directed to present any such disputes to the Court by *497 way of organized, focused motions in limine .
2. Disputes of Fact Remain as to Plaintiffs' Section 9 Claim Precluding Summary Judgment in Favor of Plaintiffs
Assuming for purposes of Plaintiffs' motion for summary judgment that all evidence Plaintiffs have presented is admissible, the Court turns to determining whether there are disputes of material fact precluding summary judgment. The Court could take many dozens of pages (and many additional months) to meticulously review the record as to all the various steps in the causal chain outlined by Plaintiffs, but it is not required to do so. Rather, if there is a dispute as to any one of many fundamental lynchpins in the causal chain, summary judgment in inappropriate.
Plaintiffs' central theory is that "[b]ecause the SRS Contractors' diversions and transfers from the Sacramento River cause temperature-dependent mortality to winter-run and spring run-chinook eggs and fry," the SRS contractors and Reclamation are in violation of Section 9. ECF No. 1184 at 34, 39. According to Plaintiffs' own description of their case, one of the "core" facts fundamental to this theory is that in 2014 and 2015 "the upper Sacramento River reached temperatures legal to listed Chinook salmon eggs and fry." ECF No 1247 at 29. Underpinning this factual assertion is Plaintiffs' position that maintaining water temperatures at or below 56°F is "necessary to avoid substantial mortality to Chinook eggs and fry." ECF No. 1184 at 26. Plaintiffs' causal proof, at least for purposes of the present motion, depends heavily on evidence demonstrating that water temperatures at the various TCPs exceeded 56°F. While it is undisputed that Chinook salmon require "cold" water for successful egg incubation and embryo and alevin 20 development, PSUF # 110, the details and exact temperature requirements are disputed.
There is significant record evidence to support Plaintiffs' position that significant mortality is likely at temperatures of 56°F and above. For example, a scientific paper by Martin, et al. attached to an NMFS review of Reclamation's 2016 preliminary temperature modeling indicated that "up to around 54F" there is "no predicted mortality due to temperature," but "above this critical temperature mortality rate increased rapidly; a week at 56F resulted in a loss of approximately 20% of the population, and a loss of 60% after a month." Poole Decl., Ex. 58 (ECF No. 1178-12), Enclosure 1, Attachment 1 at ECF page 15 of 23. It is notable that the NMFS BiOp adopted 56°F as the temperature compliance target in its RPA. There is also evidence in the record that supports Plaintiffs' position that temperatures below 50°F are "optimal" for egg incubation. Plaintiffs cite a March 18, 2018 memorandum from an NMFS fisheries biologist regarding Shasta temperature compliance in which that biologist summarizes research on the subject of the effects of water temperature on the development of incubating salmon eggs as follows:
The effects of water temperature in regulating developmental rates of incubating eggs are well documented (e.g., Hicks 2000, McCullough 1999). During incubation, water temperature affects the rate of embryo and alevin development, the amount of dissolved oxygen in the water, and, to a significant extent, the survival of early fry (Bjornn and Reiser 1991). Within an acceptable range, the higher the temperature is, *498 the faster the rate of development will be, and the shorter the incubation period and time to emergence (Beacham and Murray 1990). Temperatures from 39.2 to 53.6°F (4-12°C) tend to produce relatively high survival to hatching and emergence, with approximately 42.8-50°F (6-10°C) being optimum. Exposure to temperatures above the optimal range results in sub-lethal or chronic effects (e.g., decreased juvenile growth, which results in smaller, more vulnerable fish; increased susceptibility to disease which can lead to mortality; and decreased ability to compete and avoid predation), as temperatures rise until at some point they become lethal.
Poole Decl., Ex. 58 (ECF No. 1178-12), Enclosure 1 at ECF page 6 of 23. In a 2016 document, NMFS identified the "Martin model" as "NMFS's Southwest Fisheries Science Center's ... new temperature-dependent mortality model," and acknowledged that it identified 53.7°F as the "critical temperature at which temperature-related winter-run egg and fry mortality increases significantly with increasing water temperatures." Poole Decl., Ex. 71 (ECF No. 1178-25) at 2.
The Martin study also provides support for one of Plaintiffs' more important factual assertions: that substantial numbers of eggs failed to successfully hatch in 2014 and 2015 because of temperatures observed during those periods of time. Poole Decl., Ex. 58, Enclosure 1, Attachment 1 at ECF page 15 of 23 ("Although in many years temperature had little influence on [egg-to-fry ("ETF") ] survival, in the years it did affect survival, the impact was substantial. Most notably, in 2014 and 2015 temperature dependent mortality alone resulted in a loss of ~77% and 85% of the population. When combined with background survival, this resulted in the extremely low ETF survival both predicted and observed in these years (~5%)."). Martin's "temperature-dependent mortality model" was used by NMFS to find that in 2014 and 2015, winter-run "temperature dependent mortality alone resulted in a loss of approximately 77% and 85% of the population, respectively." Id ., Enclosure 1, at ECF page 4 of 23.
Plaintiffs argue that "[w]hile [the SRS Contractors] may quibble with the exact temperature that is "optimal" for egg and fry survival, [they] cannot and do not dispute that warmer water temperatures result in mortality (and thus take)." ECF No. 1247 at 29. After careful examination of the record, applying the standard of decision applicable on summary judgment, the Court concludes that the SRS Contractors have presented a material dispute, not just a quibble. The SRS Contractors' defense expert, Bradley Cavallo, who submitted a declaration in opposition to Plaintiffs' motion for summary judgment, points out that at least one panel of experts, the Delta Stewardship Council Independent Review Panel, has questioned foundational assumptions underpinning the Martin study, calling into question the extent to which it can be applied with precision in the field. See Declaration of Bradley Cavallo ("Cavallo Decl.") (ECF No. 1223) ¶ 13. Mr. Cavallo points to studies that indicate normal embryo development can take place at temperatures up to 57°F. Cavallo Decl. ¶ 13. Mr. Cavallo also highlights a 2006 study by Geist, et al. , which reported no significant differences in survival of Chinook salmon embryos between 55.4 and 61.7°F, assuming certain background dissolved oxygen levels, with rapid declines in survival occurring over 61.7°F . Id. It is Mr. Cavallo's position that research indicating "lower thermal tolerance" is not supported by the data, in part because the relevant research did not measure dissolved oxygen levels, which Geist found to interact with temperature *499 levels. Id. Nothing in the record suggests Mr. Cavallo's opinion is inadmissible or otherwise entirely invalid or irrelevant. So, what the SRS Contractors contend (and have supported with some evidence) is that temperature-related mortality may not actually occur until considerably higher temperatures than Plaintiffs suggest.
Even if Plaintiffs are correct that that "warmer temperatures result in mortality (and thus take)," Plaintiffs' Section 9 claim requires a showing of proximate cause. As presented in the pending motions, Plaintiffs' proximate cause case against all Defendants turns in large part on actual temperature measurements during 2014 and 2015. But, in 2014, daily average temperatures never reached 61.7°F during the entire temperature management season, with average temperatures staying below 56°F for May, June, and July, reaching 56.1° for August, 58.5°F for September, and 61.0° for October. (Notably, the RPA's protections for winter-run do not extend into October, BOR 8196, and the level of temperature-dependent mortality to spring-run is not as well documented in the present record as it is for winter-run.) In 2015, daily average temperatures were 55.2°F in May, 57.3°F in June, 57.1°F in July, 56.9°F in August, 56.7°F in September, and 56.8°F in October. Assuming the truth of the evidence submitted by Mr. Cavallo and viewing that evidence in a light most favorable to Defendants, as this Court must on summary judgment, there is a hole in Plaintiffs' causal chain because the upper Sacramento River never reached temperatures lethal to listed Chinook. For purpose of summary judgment, the Court may not weigh the relative value of these competing threads of information . In other words, at this stage, this is not about which side's evidence represents the most up-to-date or even the more compelling interpretation of existing scientific information.
While it is compelling that relevant agencies, including Reclamation, concluded there was significant temperature related mortality in 2014 and 2015, these conclusions seem to be based, at least in part, on the Martin model. See Poole Decl., Ex. 58, Enclosure 1. The SRS Contractors' evidence casts some doubt upon these conclusions, enough doubt to preclude summary judgment.
For this reason, Plaintiffs' motion for summary judgment must be and is DENIED.
B. Federal Defendants' Cross-Motion/ Motion to Dismiss
This Court previously held that in the context of a Section 9 claim, Reclamation cannot be the proximate cause of take resulting from the implementation of actions Reclamation was required to take (either by law or by a still-valid contract), but that no such limitation precluded Section 9 liability for take caused by actions over which Reclamation does have discretionary control. See generally NRDC v. Norton , 236 F.Supp.3d 1198 . As mentioned, as a result of that prior ruling, only two narrow aspects of the Section 9 claim remain pending against Reclamation: that Reclamation unlawfully "took" ESA-listed salmonids by (1) approving water transfers from SRS Contractors to others in 2014 and 2015 ("transfer theory"); and (2) by failing to require one SRS Contractor, GCID, to divert a certain volume of water from Stony Creek, rather than directly from the Sacramento River, during those same years ("Stony Creek theory"). See id. at 1240 .
Federal Defendants title their opening brief a "Cross Motion for Summary Judgment." Within that motion, they: (1) request dismissal of Plaintiffs' Section 9 claim on various jurisdictional grounds and *500 (2) argue in the alterative that they are entitled to summary judgment on the merits of the Section 9 claim.
1. Motion to Dismiss
Federal Defendants move to dismiss the Section 9 claim against Reclamation on three grounds: (1) that Plaintiffs failed to comply with the ESA's 60-day notice requirement as to the Section 9 Claim against Reclamation; (2) that the claim improperly challenges wholly past agency action; and (3) that Plaintiffs cannot establish Article III standing as to the Section 9 claim against Reclamation.
a. Should the APA's Record Review Rule Limit Plaintiffs' Sixth Claim Against Reclamation?
Before taking on the various aspects of Federal Defendants' motion to dismiss, it is necessary to address a threshold issue raised by Federal Defendants in a footnote. This Court previously held that Plaintiffs' sixth claim for relief is not limited to the administrative record. Specifically, in its August 2017 Order, the undersigned reasoned:
For claims that arise directly under the ESA, the APA's record review provision does not apply and "evidence outside the administrative record [may be considered] for the limited purposes of reviewing Plaintiffs' ESA claim." [ Western Watersheds Project v.] Kraayenbrink , 632 F.3d [472,] 497 [ (9th Cir. 2011) ] ; Yurok Tribe v. United States Bureau of Reclamation , 231 F.Supp.3d 450 , 467 (N.D. Cal. 2017).[FN]
[FN] There has been some debate over whether post- Kraayenbrink Ninth Circuit authority overrules Washington Toxics [Coal. v. EPA , 413 F.3d 1024 , 1030 (9th Cir. 2005) ] and Kraayenbrink . See Yurok Tribe , 231 F.Supp.3d at 469 ; Hoopa Valley Tribe v. Nat'l Marine Fisheries Serv. , 230 F.Supp.3d 1106 , 1123-25 (N.D. Cal. 2017) ; see also Ellis v. Housenger , No. C-13-1266 MMC, 2015 WL 3660079 , at *3 (N.D. Cal. June 12, 2015). This Court agrees with the reasoning provided by the district courts in Yurok Tribe and Hoopa Valley Tribe both of which held that while the APA's standard of review applies to claims arising directly under the ESA because the ESA provides no standard of review, the APA's record review limitations do not apply, so evidence outside the administrative record may be considered. Yurok Tribe , 231 F.Supp.3d at 469 ; Hoopa Valley Tribe , 230 F.Supp.3d at 1123-25 ; see also Oregon Nat. Desert Ass'n v. Kimbell , 593 F.Supp.2d 1217 , 1220 (D. Or. 2009) ; but see Wildwest Inst., v. Ashe , No. CV 13-6-M-DLC, 2013 WL 12134034 , at *2 (D. Mont. Oct. 18, 2013) (refusing to interpret Kraayenbrink as precluding application of APA record review principles to ESA claims and requiring Plaintiffs demonstrate proposed supplemental documents fall under one of the four exceptions articulated by the court in Lands Council v. Powell , 395 F.3d 1019 , 1030 (9th Cir. 2005) ).
NRDC v. Zinke , 2017 WL 3705108 , at *4 & n.10 ; see also Stout , 869 F.Supp.2d at 1276 n.1 ("It is difficult to see how a claim regarding § 9's take prohibition could be analyzed pursuant to anything but a de novo standard with the admission of extra record evidence.").
In a footnote to their opening brief, Federal Defendants now question that conclusion, arguing that Plaintiffs' sixth claim against Reclamation should be limited to the administrative record because of 5 U.S.C. § 559 , which provides that the entirety of Chapter 7 of the APA (including 5 U.S.C. § 706 , the source of the *501 APA's record review limitation) applies to any "[s]ubsequent statute" unless the later-enacted statute "expressly" supersedes or modifies the APA's judicial review provisions. Federal Defendants maintain that because the ESA's citizen suit provision does not "expressly" provide that it supersedes the APA's judicial review provisions. ECF No. 1210-1 at 35 n.24. The Court rejects this argument. In Kraayenbrink , the Ninth Circuit clearly held that courts in this Circuit "may consider evidence outside the administrative record for the limited purposes of reviewing" a claim brought under the ESA's citizen suit provision because "the APA applies only where there is 'no other adequate remedy in court,' " a situation that does not pertain to claims brought directly under the ESA because the ESA provides such a remedy. 632 F.3d at 497. Federal Defendants fail to explain why this language from Kraayenbrink does not control here. This Court does not make law and cannot ignore an express holding of the Ninth Circuit that is directly on point.
b. Rule 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of an action for "lack of subject-matter jurisdiction." Faced with a Rule 12(b)(1) motion, a plaintiff bears the burden of proving the existence of the court's subject matter jurisdiction. Thompson v. McCombe , 99 F.3d 352 , 353 (9th Cir. 1996). A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears. Gen. Atomic Co. v. United Nuclear Corp. , 655 F.2d 968 , 968-69 (9th Cir. 1981). A challenge to subject matter jurisdiction may be facial or factual. White v. Lee , 227 F.3d 1214 , 1242 (9th Cir. 2000). As explained in Safe Air for Everyone v. Meyer , 373 F.3d 1035 , 1038 (9th Cir. 2004) :
In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.
Because the present motion to dismiss is presented at the summary judgment stage and both Plaintiffs and Federal Defendants reference documents outside the pleadings, the Court will treat it as a speaking motion. 21 Id. at 1039 (allowing the court to consider evidence outside the complaint without converting the motion into a summary judgment motion).
In a speaking motion, "[t]he court need not presume the truthfulness of the plaintiff's allegations." Id. The Court "is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony. ..." McCarthy v. United States , 850 F.2d 558 , 560 (9th Cir. 1988) ; see also Nat'l Licensing Ass'n, LLC v. Inland Joseph Fruit Co. , 361 F.Supp.2d 1244 , 1247 (E.D. Wash. 2004). "Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa Cnty. , 343 F.3d 1036 , 1040 n.2 (9th Cir. 2003). A court may hear evidence and make findings of fact necessary to rule on the subject matter *502 jurisdiction question prior to trial, if the jurisdictional facts are separable from the merits. Rosales v. United States , 824 F.2d 799 , 802-803 (9th Cir. 1987). However, if the jurisdictional issue and substantive claims are so intertwined that resolution of the jurisdictional question is dependent on factual issues going to the merits, the court should dismiss for lack of jurisdiction only if the material facts are not in dispute and the moving party is entitled to prevail as a matter of law. Otherwise, the intertwined facts must be resolved at trial. Id.
c. 60-Day Notice
The ESA provides that "no action may be commenced ... prior to sixty days after written notice of the violation has been given to the Secretary, and to any alleged violator of any such provision or regulation." 16 U.S.C. § 1540 (g)(2)(A). "The notice requirement provides agencies with 'an opportunity to review their actions and take corrective measures if warranted.' " Alliance for the Wild Rockies v. U.S. Dep't of Agric. , 772 F.3d 592 , 601 (9th Cir. 2014) (quoting Sw. Ctr. for Biological Diversity v. U.S. Bureau of Reclamation , 143 F.3d 515 , 520 (9th Cir. 1998) ). Thus, to satisfy the notice requirement, a plaintiff must "provide sufficient information of a violation so that [the defendant] could identify and attempt to abate the violation." Sw. Ctr. for Biological Diversity , 143 F.3d at 522 . The requirement is a "mandatory condition [ ] precedent to commencing suit" under the ESA. Alliance , 772 F.3d at 601 (quoting Hallstrom v. Tillamook Cnty. , 493 U.S. 20 , 31, 110 S.Ct. 304 , 107 L.Ed.2d 237 (1989) ). "A failure to strictly comply with the notice requirement acts as an absolute bar to bringing suit under the ESA." Sw. Ctr. for Biological Diversity , 143 F.3d at 520 . A district court may not disregard such a notice requirement at its discretion. See Hallstrom , 493 U.S. at 31 , 110 S.Ct. 304 (discussing similar notice requirement in the Resource Conservation and Recovery Act).
However, a citizen "is not required to list every specific aspect or detail of every alleged violation. Nor is the citizen required to describe every ramification of a violation." Klamath-Siskiyou Wildlands Ctr. v. MacWhorter , 797 F.3d 645 , 651 (9th Cir. 2015) (quoting Cmty. Ass'n for Restoration of the Env't v. Henry Bosma Dairy , 305 F.3d 943 , 951 (9th Cir. 2002) (internal quotation omitted) ). Rather, the analysis turns on the "overall sufficiency" of the notice. Id. "A reviewing court may examine both the notice itself and the behavior of its recipients to determine whether they understood or reasonably should have understood the alleged violations." Id. (citations omitted). 22
*503 Here, Plaintiffs rely on an August 10, 2015 notice letter which contains general allegations that Reclamation violated the ESA by making "excessive reservoir releases in 2014 and 2015." See 6SC, Ex. 6 (ECF No. 1287-6) ("Notice Letter") at 17. As mentioned, this Court has found that releases made by Reclamation to satisfy the SRS Contracts mandatory deliveries are nondiscretionary actions that cannot give rise to a Section 9 claim against Reclamation. ECF No. 1069 at 55-56. Federal Defendants assert that the Notice Letter only concerns releases to meet non-discretionary contractual obligations, so it did not put Reclamation on notice of any claim pertaining to discretionary water transfer approvals. See ECF No. 1210-1 a 33.
The Court agrees with Plaintiffs that the Notice Letter provided sufficient information to put Reclamation on notice of a potential violation involving Reclamation's discretionary approval of SRS Contractor water transfers. While the Notice Letter addressed deliveries the 2009 NMFS BiOp characterized as "nondiscretionary," the Notice Letter also alleged that "[t]o the extent that Reclamation's deliveries to the SRS Contractors are discretionary, Reclamation and the Contractors failed to comply with the protective measures required by NMFS to minimize or avoid take." Notice Letter at 13. More generally, the Notice Letter informed Reclamation that Reclamation was unlawfully taking winter-run and spring-run Chinook and that the cause of the take was Reclamation's failure to conserve enough cold water to maintain temperature control of the upper Sacramento River during salmon spawning and rearing, the primary cause of which was meeting the demands of the SRS Contractors. See ECF No. 1247 at 36 (citing 6SC, Ex. 6 at 13-18).
The distinction at issue-between non-discretionary deliveries to the SRS Contractors under the SRS Contract's on the one hand and Reclamation's discretionary actions in connection with approving the transfer of certain volumes of SRS Contract water to other water users on the other-is a subtle one. As mentioned, in a previous order, the Court narrowed Reclamation's potential take liability to a subset of the discretionary actions Reclamation can take in connection with the SRS contracts, including transfer approvals. NRDC v. Norton , 236 F.Supp.3d at 1240 -41 . This narrowing was triggered by Federal Defendants' motion to dismiss, in which they argued that the Section 9 claim against Reclamation must be dismissed because Reclamation cannot, as a matter of law, be the proximate cause of any take that occurs as a result of the agency implementing a legally mandated water delivery. See ECF No. 1069 at 50. The Court agreed with this general proposition, finding "that a federal agency that is legally required to take an action pursuant to federal law, such as by implementing non-discretionary terms in an otherwise valid water delivery contract, that agency cannot be the proximate cause of Section 9 take by undertaking that non-discretionary action." Id. at 55-56. But, the claim was permitted to proceed against Reclamation based upon a subset of water deliveries over which Reclamation does retain discretion. This narrowing process does not automatically pull the remaining subset of claims outside the scope of the allegation made in the Notice Letter. The Notice Letter encompassed all releases to satisfy SRS Contractor demands, whether those releases be discretionary (e.g., water transfer approvals) or non-discretionary. That Reclamation successfully asserted a defense (lack of discretion) against liability for certain releases does not mean the Notice Letter failed to provide Reclamation with sufficient information about Plaintiffs' theory that all releases (including releases to implement *504 Reclamation -approved transfers) were a violation of the ESA.
The Court sees Plaintiffs' Stony Creek theory differently. That theory arises from a provision in the contract between Reclamation and GCID, one of the SRS Contractors, that on its face authorizes Reclamation to require GCID to divert up to 20,315 AF of its contract total from Stony Creek instead of from the Sacramento River. NRDC v. Norton , 236 F.Supp.3d at 1240 . Plaintiffs describe their theory of take liability under this provision as follows in their supplemental brief: "If [Reclamation] had exercised its authority to require Stony Creek diversions in 2014 and 2015, that could have resulted in approximately 20,000 [AF] less of water released to the Sacramento River each year." ECF No. 1267 at 5. This is indisputably a theory based upon Reclamation's failure to require GCID to divert water from somewhere other than the Sacramento River . Nothing in the Notice Letter puts Reclamation on notice that it might face such a claim. The Notice Letter speaks to "excessive reservoir releases" to satisfy SRS Contractor demands. Notice Letter at 17. It mentions "Reclamation's decision to make large early releases in 2014, and its resultant failure to maintain adequate temperature control." Id. at 15. While transfers are a species of such releases, the Stony Creek theory is a different beast entirely. The Notice Letter nowhere mentions that Reclamation had any authority to require SRS Contractors to use alternative sources of supply, nor does it mention Stony Creek or the relevant GCID contract provision.
Accordingly, Federal Defendants' motion to dismiss based upon failure to comply with the ESA's 60-day notice provision is DENIED as to the transfer theory and GRANTED as to the Stony Creek theory.
d. Past v. Future Actions
Federal Defendants next argue that the allegations against them in the sixth claim for relief should be dismissed because they involve wholly past agency actions. (ECF No. 1210-1 at 33-34.) In its October 20, 2016 MTD Order, the Court rejected a closely related argument that the allegations made against the SRS Contractors in the sixth claim of the Fourth Supplemental Complaint ("4SC") should be dismissed because those allegations involved wholly past conduct. As the applicable legal framework is identical, and in the interest of expedience, the Court begins its analysis here by repeating its analysis from the October 20, 2016 MTD Order:
Plaintiffs' Section 9 claim is brought pursuant to the ESA's citizen suit provision, [ ] which permits "any person" to commence a civil suit to "enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof." 16 U.S.C. 1540(g)(1)(A) (emphasis added).
The SRS Contractors cite National Wildlife Federation v. Burlington Northern Railroad , 23 F.3d 1508 (9th Cir. 1994), in support of their contention that Section 9 clams cannot be based upon wholly past conduct. In Burlington , plaintiffs appealed the denial of their motion for a preliminary injunction in a Section 9 case. Id. at 1509 . The Ninth Circuit held that, despite the fact that requests for injunctive relief under the ESA must be evaluated in light of "Congress' determination that the balance of hardships and the public interest tips heavily in favor of protected species," to obtain an injunction under Section *505 9, a plaintiff still "must make a showing that a violation of the ESA is at least likely in the future." Id. at 1511 (emphasis added); cf. Ctr. for Biological Diversity v. Marina Point Dev. Co. , 566 F.3d 794 , 804 (9th Cir. 2009) (finding Section 9 claim against developer regarding take of bald eagles moot because eagle had been delisted by the time appeal was decided, reasoning that the delisting made it impossible for developer to "violate" the ESA regarding the bald eagle).
The SRS Contractors also cite Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc. , 484 U.S. 49 [ 108 S.Ct. 376 , 98 L.Ed.2d 306 ] (1987). In Gwaltney , several weeks before plaintiffs filed a lawsuit under the citizen suit provision of the Clean Water Act ("CWA"), the defendant ceased violating its CWA permit. Id. at 53-54 [ 108 S.Ct. 376 ]. The Fourth Circuit concluded that the Gwaltney plaintiffs could pursue their CWA citizen suit claim based entirely on past conduct. Id. at 56 [ 108 S.Ct. 376 ]. The CWA's citizen suit provision provides that "any citizen may commence a civil action on his own behalf ... against any person [or agency] ... who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation." 33 U.S.C. § 1365 .[FN] The Supreme Court reversed, noting that Congress, by using the phrase "to be in violation" in the CWA's citizen suit provision, intended for citizens to be able to abate only ongoing violations, and thus required plaintiffs to "allege a state of either continuous or intermittent violation-that is, a reasonable likelihood that a past polluter will continue to pollute in the future." Id. at 57 [ 108 S.Ct. 376 ]. The Supreme Court further noted that a contrary conclusion would render the CWA's 60-day notice requirement "incomprehensible," because the purpose of that notice "is to give [the alleged violator] an opportunity to bring itself into compliance with the Act and thus render unnecessary a citizen suit." Id. at 59-60 [ 108 S.Ct. 376 ].
[FN] The ESA's citizen suit provision contains similar language. 16 U.S.C. § 1540 (g)(1)(A) (providing that "any person may commence a civil suit on his own behalf ... to enjoin any person [or agency] ... who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof.").
The SRS Contractors make an analogous argument here based upon ESA's 60-day notice provision, the purpose of which is, at least in part, to give defendants "notice of a perceived violation" and "give them the opportunity to review their actions and take corrective measures if warranted." Conservation Cong. v. Finley , 774 F.3d 611 , 618 (9th Cir. 2014) (internal citation and quotation omitted). The SRS Contractors argue that if a citizen suit could be brought for wholly past violations, this purpose of the 60-day notice provision would be thwarted. SRS MTD at 18.
Plaintiffs argue that Gwaltney does not apply to the ESA and that nothing in the ESA requires a citizen suit plaintiff to plead facts establishing a likelihood of future harm. [Internal record citation.] Plaintiffs point to Stout v. U.S. Forest Serv. , 869 F.Supp.2d 1271 (D. Or. 2012), in which the defendants argued, at the summary judgment stage, that plaintiffs had to prove "that take is likely to occur in the future to prevail on their [Section] 9 claim." Id. at 1280 . Rejecting this argument, the district court reasoned:
*506 In arguing that plaintiffs must prove a likelihood of future take to prevail on their § 9 claim, defendants confuse the forward looking nature of the relief offered by the ESA's citizen suit provision and the violation of the Act that justifies the injunction. In order to prevail on their § 9 claim, plaintiffs must prove that the Forest Service is "in violation of any provision of the" ESA. 16 U.S.C. § 1540 (g)(1)(A). While injunctive relief is forward looking, it is often used to remedy past or present harms and the term "in violation" connotes past, present, or future violations of the ESA. To require a citizen plaintiff to prove that "take" is likely to occur in the future tips the balance away from the preservation of species and would thwart Congress' overriding purpose of providing "a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved" and of providing "a program for the conservation of such ... species." 16 U.S.C. § 1531 (b) ; Forest Conservation Council [ v. Rosboro Lumber Co. ], 50 F.3d [781,] 785 [ (9th Cir. 1985) ]. That said, it is equally clear that the relative likelihood of future harm, as well as the need of a species for recovery from past harm, are factors a court should consider in tailoring the scope of injunctive relief.
Id. at 1280-81 .
While not illogical, it is very difficult to square the reasoning of Stout with Gwaltney , which interpreted language from the CWA that is materially identical to the relevant ESA language. It is true that some complicating ESA jurisprudence exists. For example, as the district court in Stout pointed out, id. at 1281 n.7, prior to the Ninth Circuit's ruling in Forest Conservation Council , 50 F.3d at 785, it was not settled that a plaintiff could obtain relief under the ESA for wholly future harm to listed species. In that case, the Ninth Circuit noted that "[a] take may involve a past or current injury, or the prospect of an imminent threat of harm to a protected species." Id. at 784 (emphasis added). This holding is entirely consistent with Stout 's conclusion that the prospective nature of the injunctive relief permitted by the citizen suit provision does not require allegations of future harm to maintain a Section 9 claim.
NRDC v. Norton , No. 1:05-CV-01207-LJO-EPG, 2016 WL 6135858 , at *24-26 (E.D. Cal. Oct. 20, 2016). In the context of the SRS Contractors' motion to dismiss, the Court declined to resolve this apparent conflict in the law, finding it unnecessary to do so because "Plaintiffs' claim is not based wholly on past violations."
Plaintiffs allege generally that "the Bureau and the SRS Contractors have violated and are likely to continue to violate Section 9 of the ESA by unlawfully and without required authorization taking winter-run and spring-run Chinook." 4SC at ¶ 23; see also id. at ¶ 29 ("[T]he Bureau and SRS Contractors have taken, and are taking, winter-run and spring-run Chinook in violation of 16 U.S.C. § 1538 (a)."). More specifically, paragraph 76 alleges [that] NMFS[ ] [itself concluded] that continued drought conditions would lead to similar mortality in the future:
It is now very clear through evaluating operations in both 2014 and 2015 that the volume of cold water available for real-time management in June through October is highly dependent on Keswick releases in April through early June. In 2016, should drought conditions persist, these releases in April through early June will need to *507 be held to minimal levels to achieve adequate temperatures only.
4SC ¶ 76. Relatedly, paragraph 137 alleges "the duration and intensity of droughts are anticipated to increase in California." Taken together, along with the other allegations in the 4SC, these allegations are sufficient to allege plausibly that the Bureau and the SRS Contractors are likely to continue to violate Section 9. Id. at ¶ 137 .11 The SRS Contractors' motion to dismiss on this ground [was therefore denied].
Id. at *26 . The currently operative 6SC contains substantially similar allegations.
In the present motion to dismiss, Federal Defendants emphasize that Plaintiffs' motion for summary judgment focuses only on conduct that took place in 2014 and 2015, without explicitly "alleging" that Reclamation's approval of transfers will recur. See ECF No. 1210-1 at 34. Even assuming Gwaltney controls, that case only requires Plaintiffs to demonstrate "a state of either continuous or intermittent violation-that is, a reasonable likelihood that a past polluter will continue to pollute in the future." 484 U.S. at 57 , 108 S.Ct. 376 . The complaint speaks generally of "releases" by Reclamation, see, e.g. , 6SC ¶ 161, and makes it clear that the problems caused by such releases are related to drought conditions, see, e.g. , id. ¶¶ 163-64, which are specifically alleged to be likely to recur in the future, see id. at ¶ 93.
With respect to the alleged recurrence of similar conditions in the future, the Plaintiffs present evidence to support the factual assertions that, among other things, climate change is expected to result in more frequent, longer, and drier droughts in the Sacramento River watershed and that these conditions will make it even more difficult to manage upstream cold water pools to maintain downstream river temperatures. PSUF # 219-220. While Federal Defendants dispute the accuracy of Plaintiffs' characterization of the record as to the impact of climate change, FDR # 219-220, this presents exactly the type of factual issue that it is intertwined with the merits. See Rosales , 824 F.2d at 802 -803 . In such a case, a court should dismiss for lack of jurisdiction only if the material facts are not in dispute and the moving party is entitled to prevail as a matter of law. As to the likelihood of future climatic conditions akin to (or more serious than) those present in 2014 and 2015, for purposes of this motion, the Court finds Plaintiffs have established a likelihood of future recurrence sufficient to withstand dismissal (or summary judgment) on this issue.
Relatedly, the Bureau cannot maintain plausibly that it has no intention of approving transfers in the future in light of the 10-year water transfer program at issue in the related case of AquAlliance v. Bureau of Reclamation , 287 F.Supp.3d 969 (E.D. Cal. 2018). The Court takes judicial notice of the fact that the project challenged in that case involved an effort by water users and Reclamation to secure programmatic environmental approval for regular transfers from SRS Contractors to other users south of the Delta. Id. Nothing in the record of that case even remotely suggests Reclamation is inclined to abandon its plans to continue such transfers in the future. See Case No. 1:15-cv-00754, ECF No. 76 (requesting remand without vacatur suggesting that errors identified by the Court in environmental approval documents are "discrete and readily corrected"). Federal Defendants urge the Court to disregard this related case because it concerns a 10-year transfer program that is not the conduct or action challenged in this case. ECF No. 1252 at 17. This belies logic. If Reclamation is seeking long-term approval for transfers it previously performed *508 in an ad hoc manner, it is at least plausible to infer that Reclamation will in the future continue to make transfers like the ones alleged to have caused take in 2014 and 2015.
Federal Defendants also maintain that "while Reclamation may approve water transfers in the future, those approvals will occur under different conditions than existed in 2014 and 2015." ECF No. 1210-1 at 34. In support of this assertion, Federal Defendants cite a February 16, 2018 letter sent by NMFS to Reclamation regarding "February Reservoir Operations Forecast Per RPA 1.2.3," an exhibit offered by Plaintiffs. Poole Dec., Ex. 12 (ECF No. 1176-13) at 6. This document indicates that "NMFS and Reclamation are currently facing a very different set of conditions than those experience[d] throughout the 2012-2106 drought ...." Id. Federal Defendants appear to be using this document to suggest that the alleged take of salmon as a result of Reclamation's permitting of water transfers is unlikely to recur in the future. But, the thrust of the document as a whole simply points out there is "significant uncertainty" regarding Reclamation's ability to maintain temperature control sufficient to protect winter-run Chinook. Id.
NMFS and Reclamation are currently facing a very different set of conditions than those experience throughout the 2012-2016 drought, and also the wet water year in 2017, with consideration of a decent volume of water in Shasta Reservoir, coupled with the forecasted water year having a reasonable likelihood of a dry classification. As a result, there is significant uncertainty regarding the ability to meet temperatures sufficiently cold enough to ensure the protection of winter-run throughout the 2018 temperature management season. With this uncertainty in mind, and in consideration of the current reinitiation of consultation on CVP/SWP operations NMFS reminds Reclamation of the requirements of section 7(d) of the Endangered Species Act to "not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (a)(2).
Id. This exhibit says nothing about transfers, nor do Federal Defendants point to any document in the record that promises or even suggests transfers will be reviewed any differently in the future.
Federal Defendants argue that the "releases" they are alleged to have caused - stemming from transfer approvals - are not likely to recur because, as Plaintiffs acknowledge, PSUF # 32, Reclamation has reinitiated consultation on the 2008 NMFS BiOp. See ECF No. 1252 at 17. But, in the absence of any information about the outcome of that reconsultation, the record reflects nothing concrete except the current regulatory situation-the same regulatory regime in place in 2014 and 2105.
In sum, the Court finds that dismissal is inappropriate on this ground because, viewing the disputed evidence (all of which is intertwined with the merits) in a light most favorable to Plaintiffs, Plaintiffs have established a that (1) the climatic circumstances present in 2014 and 2015 are likely to recur; and (2) Reclamation is likely to approve in the future transfers in a manner similar to the approval process observed in 2014 and 2015.
e. Standing
(1) Legal Framework
Standing is a judicially created doctrine that is an essential part of the case-or-controversy requirement of Article III.
*509 Pritikin v. Dept. of Energy , 254 F.3d 791 , 796 (9th Cir. 2001). "To satisfy the Article III case or controversy requirement, a litigant must have suffered some actual injury that can be redressed by a favorable judicial decision." Iron Arrow Honor Soc. v. Heckler , 464 U.S. 67 , 70, 104 S.Ct. 373 , 78 L.Ed.2d 58 (1983). "In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin , 422 U.S. 490 , 498, 95 S.Ct. 2197 , 45 L.Ed.2d 343 (1975). To have standing, a plaintiff must show three elements:
First, the plaintiff must have suffered an "injury in fact"-an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Lujan v. Defenders of Wildlife , 504 U.S. 555 , 560-61, 112 S.Ct. 2130 , 119 L.Ed.2d 351 (1992) (internal citations and quotations omitted).
In addition, where an organization or association is bringing suit on behalf of its members, that organization or association must demonstrate that: (1) its members would otherwise have standing to sue in their own right; (ii) the interests it seeks to protect are germane to the organization's purpose; and (iii) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167 , 181, 120 S.Ct. 693 , 145 L.Ed.2d 610 (2000).
The Supreme Court has described a plaintiff's burden of proving standing at various sta

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7251078. Public record. Not legal advice.