The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION AND ORDER DENYING FEDERAL DEFENDANTS' MOTION TO DISMISS (DOC. 80), DENYING AS MOOT MOTIONS TO STRIKE PORTIONS OF MOTION TO DISMISS (DOC. 92, 97), AND DENYING MOTION TO STRIKE PORTIONS OF REPLY (DOC. 125)
These consolidated cases all challenge a June 4, 2009 biological opinion issued by the National Marine Fisheries Service ("NMFS") finding that the coordinated operations of the federal Central Valley Project ("CVP") and State Water Project ("SWP") are likely to jeopardize the continued existence and adversely affect the critical habitat of certain salmonid and other species ("2009 Salmon BiOp").*fn1
Before the court for decision is Federal Defendants' motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(1), two of the six consolidated actions, namely the cases brought by (1) co-Plaintiffs Kern County Water Agency ("Kern") and Coalition For a Sustainable Delta ("Coalition") and (2) the Metropolitan Water District of Southern California ("Met"), as "duplicative" of (3) the consolidated lawsuit filed be the State Water Contractors ("SWC"). Doc. 80-2, filed Nov. 2, 2009. Alternatively, Federal Defendants argue that if the Kern/Coalition and Met cases remain viable, the SWC case should be dismissed for lack of standing, in part because Kern and Met are members of SWC. Id. SWC opposes dismissal on either ground, Doc. 99, as do Met, Doc. 102, and the Kern/Coalition plaintiffs, Doc. 107.
Federal Defendants replied, arguing, among other things, that dismissal of the Kern/Coalition action is appropriate, despite the fact that Kern's co-plaintiff, the Coalition, is not a member of the SWC. Nevertheless, "should the Court be inclined to deny this motion as to Coalition," Federal Defendants request that dismissal should be without prejudice, so that Federal Defendants can pursue discovery into the Coalition's membership. Doc. 114 at 6. The Coalition filed a motion to strike this argument, because it was raised for the first time in reply. Doc. 125. In the alternative, the Coalition requests leave to file a surreply addressing this argument, which has been lodged as Attachment A to their motion to strike. Doc. 125-2.
The Coalition and SWC separately move to strike those portions of Federal Defendants' motions that concern their claims, on the ground that Federal Defendants failed to give either the Coalition or SWC proper notice that they would be seeking dismissal of their claims. Docs. 92 & 97. The September 25, 2009 Scheduling Conference Order provided: "[i]f any party believes any ... issue is resolvable by early dispositive motion, that party shall give notice of the nature of the claims on or before October 10, 2009." Doc. 51 at 21. On October 5, 2009, Federal Defendants gave notice of their intent to move to dismiss the claims brought by KCWA and Met, but made no mention of the Coalition or SWC's claims, Doc. 55 at 1, nor have Federal Defendants made any request to modify the Scheduling Order. Federal Defendants oppose the motions to strike. Doc. 113. The Coalition and SWC replied. Docs. 127 & 128.
Federal Defendants rely exclusively on Federal Rule of Civil Procedure 12(b)(1), which allows a motion to dismiss for lack of subject matter jurisdiction. It is a fundamental precept that federal courts are courts of limited jurisdiction. Limits upon federal jurisdiction must not be disregarded or evaded. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). The plaintiff has the burden to establish that subject matter jurisdiction is proper. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). This burden, at the pleading stage, must be met by pleading sufficient allegations to show a proper basis for the court to assert subject matter jurisdiction over the action. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Fed. R. Civ. P. 8(a)(1). When a defendant challenges jurisdiction facially, all material allegations in the complaint are assumed true, and the question for the court is whether the lack of federal jurisdiction appears from the face of the pleading itself. Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir. 2009).
A. The Challenged Parties
In its Complaint, SWC alleges that "Plaintiff [SWC] is ... a non-profit mutual benefit corporation organized and existing under the laws of the State of California to represent the common interests of 27 public water supply agencies located in California's Central Valley, in the San Francisco Bay area, along California's Central Coast, and in Southern California." SWC Complaint at ¶14. SWC also alleges:
[T]he effects of Defendants' actions will be felt by [State Contractors] and its member agencies .... The member agencies of the State Contractors include 27 public districts and agencies which provide water in numerous counties, including to users in Kings and Kern Counties[,] ... reductions in exports from the Delta will place greater demands upon alternative sources of water, including groundwater, that are used to meet reasonable and beneficial water demands within Merced, Fresno, Kings and Kern Counties.
The Kern/Coalition Complaint contains the following allegations regarding Kern:
[Kern] is a public agency that was created in July 1961 by a special act of the California State Legislature and ratified by the electorate of Kern County in Se5p tembe r 1961. [Kern] was granted the primary power to acquire and contract for water supplies for Kern County. (Kern Coalition Complaint at ¶9.) [Kern] is a wholesaler of SWP water for ... agIdricultural and municipal and industrial uses. ( .)
The service area for [Kern] encompasses all the territory within tId he San Joaquin Valley portion of Kern County. ( .) [Kern] provides a portion of, and in some cases the entire water supply for approximately 719,000 acres of prime farmland . . . , and for some 500,000 residents of Kern County. (Id.) Approximately 98 percent of [Kern's] water is iIdmported by the [State Water Project ("SWP")]. ( .)
In terms of contract amount with [the Department of Water Resources ("DWR")], [Kern] is the second largest SWP contractor. (Id.)
The Kern/Coalition Complaint also contains the following allegations regarding the Coalition and its members:
Plaintiff Coalition is comprised of individual and agricultural water users and of individuals within the San Joaquin Valley. The Coalition is bringing thi Ids action on behalf of itself and its members. ( . at ¶ 12.)
The purpose of the Coalition is to advance the interests of its members, namely, (1) to better the conditions of those engaged in agricultural pursuits in the San Joaquin Valley and (2) to ensure a sustainable and reliable water supply by protecting the Delta and promoting a strategy to ensure its sustainability. (Id.)
Certain Coalition members have contracts with various agencies for the delivery of [Central Valley Project ("CVP")] and SWP water, and as such, depend on CVP and SWP deliveries from the Delta to the San Joaquin Valley for their water supply. Certain Coalition members have contracts to receive water through 2035. These contracts are expected to be extended beyond that date. Thus, the Coalition and its members have a long-term interest in the overall health of the Delta and its ecosystem, which includes the maintenance of viable populations of the salmonids and the green sturgeon [at issue in the litigation]. (Id. at ¶ 13.)
Certain Coalition members' contracts for delivery of SWP water require payment for their full contractual entitlement regardless of the amount of water actuallyIddelivered in any given year through the SWP. ( . at ¶ 14.) [R]educed delivery of surface water through the SWP is likely to result in increased reliance on groundwater for irrigation supplies, which will result in overdraft of the groundwater basins that underli Ide the lands of the Coalition members. ( .)
Coalition members view, enjoy, and use the Delta ecosystem. Coalition members routinely engage in various recreational activities in the Delta -- including boating, fishing, and wildlife viewing -- and have concrete plans to continue to do so in the future.... The decline of the salmonids and the Listed Species has had and continues to have a substantial negative impact on ...