ORDER DENYING DEFENDANTS' MOTON TO DISMISS
Before the Court is Defendants' United States Army Corps of Engineers and Major General Meredith W.B. Temple, (collectively "the Corps" or "Defendants"), Motion to Dismiss (Doc. #26) the First Amended Complaint ("FAC," Doc. #25) filed by Plaintiffs 4 Friends of the River, Defenders of Wildlife, and the Center for Biological Diversity, (collectively "Plaintiffs"). Plaintiffs oppose the motion (Doc. #47).*fn1
I. FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY
Plaintiffs allege that for decades the Corps has allowed, 3 encouraged, and, in some cases, required the planting of trees and 4 vegetation on levees for environmental purposes, including habitat 5 preservation. Plaintiffs allege that the Corps reversed course 6 when it issued the "Final Draft White Paper: Treatment of 7 Vegetation within Local Flood Damage-Reduction Systems" ("White 8 Paper") on April 20, 2007. Plaintiffs contend the White Paper 9 calls for a vegetative-free-zone for all levees.
Plaintiffs allege that Defendants changed the regulatory and environmental status quo when they adopted Engineer Technical Letter 1110-2-571 ("ETL"), allegedly replacing EM 1110-2-301, on April 10, 2009 and again ten months later when they produced the draft Environmental Assessment/Finding of No Significant Impact on February 9, 2010 for the "Policy Guidance Letter -- Variance from Vegetation Standards for Levees in Floodwalls" ("PGL"). Plaintiffs allege that through a Federal Register Notice ("Federal Register Notice") the PGL acknowledged that the ETL Guidelines establish "mandatory vegetation-management standards for levees." 75 Fed. Reg. at 6364.
The ETL establishes "Guidelines for Landscape Planting and Vegetation Management at Levees, Floodwalls, Embankment Dams, and Appurtenant Structures." Plaintiffs aver that the ETL prohibits all vegetation except grass, requires a vegetation-free zone 15 feet to each side of a levee, and requires removal of all non-compliant vegetation. The ETL, according to Plaintiffs, requires levee operators to seek a variance to retain non-compliant vegetation for environmental purposes. Plaintiffs further allege that the Corps itself described the ETL standards as "mandatory" in 2 the Federal Register and the Corps is currently implementing the 3 ETL in California in the course of levee inspections. 4
Plaintiffs allege that the PGL substantively changed the 5 Corps' policy on existing variances and has had direct, indirect, 6 and cumulative impacts on the environment including impacts to 7 listed species and critical habitats. 8
Plaintiffs allege that on about April 2, 2010, the Sacramento 9
Area Flood Control Agency ("SAFCA") and the Central Valley Flood Protection Board formally applied to the Corps for a variance from the standard vegetation guidelines set forth in the ETL as non-federal sponsors of the American River Watershed Canyon Features Project. Plaintiffs aver that on about June 16, 2010, the Corps approved in part and denied in part the variance request. Plaintiffs further allege that on about December 30, 2010, in rejecting a request from the California Department of Water Resources ("DWR") to cease implementing the ETL, the Corps declared "should there be information available that warrants a revision or an improvement to the standards in the ETL, we will change the standard. However, until that time, the Corps will continue to implement the current standards in the ETL." FAC ¶ 39.
Plaintiffs allege that the Defendants' actions were final agency actions, major federal actions, and rulemaking that require compliance with the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., the Endangered Species Act ("ESA"), 16 U.S.C. 1531 et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 553, 701-706. Plaintiffs contend that the Corps failed to comply with those statutes. Plaintiffs allege that the Corps did not prepare an Environmental Impact Statement or an 2 Environmental Assessment under NEPA before issuing the White Paper, 3 ETL, Federal Registrar notice, or PGL. Likewise, Plaintiffs allege 4 that the Corps did not consult with the fish and wildlife agencies 5 under the ESA. Finally, Plaintiffs allege that the Corps did not 6 provide notice and comment in violation of the APA. 7
Plaintiffs filed their Complaint (Doc. #1) on June 20, 2011. 8
On July 27, 2011, Plaintiffs filed a Motion for Summary Judgment 9
(Doc. #11). The Court granted the Corps' motion to stay briefing on the summary judgment motion until the Court decides the Corps' Motion to Dismiss (Doc. #23). On September 19, 2011, the Corps filed its Answer to Plaintiffs' Complaint (Doc. #24). On October 10, 2011, Plaintiffs filed the FAC (Doc. #25) alleging three causes of action: (1) NEPA violations; (2) ESA violations; and (3) APA Violations. On October 21, 2011, Defendants filed the instant Motion to Dismiss (Doc. #26) which included two exhibits and several attachments. Plaintiffs oppose the Motion (Doc. #47) and object to the exhibits in the Motion (Doc. #48).
A. Administrative Procedure Act
The Administrative Procedure Act ("APA") provides that a "person suffering a legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial relief thereof." 5 U.S.C. § 702. The APA provides that "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review."
5 U.S.C. § 704. In reviewing agency action, the court may set aside the action only if it is "(A) arbitrary, capricious, an abuse 2 of discretion, or otherwise not in accordance with law . . .; 3
(C) in excess of statutory jurisdiction, authority, or limitations, 4 or short of statutory right; or (D) without observance of procedure 5 required by law." 5 U.S.C. § 706(2)(A), (C), (D). 6
B. National Environmental Policy Act 7
The National Environmental Policy Act ("NEPA") has "twin aims. 8
First, it places upon [a federal] agency the obligation to consider 9 every significant aspect of the environmental impact of a proposed action. Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process." Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97 (1983) (citation and internal quotation marks omitted). NEPA does not contain substantive environmental standards. Rather, it "establishes 'action-forcing' procedures that require agencies to take a 'hard look' at environmental consequences." Metcalf v. Daley, 214 F.3d 1135, 1141 (9th Cir. 2000).
NEPA requires federal agencies to prepare an Environmental Impact Statement ("EIS") prior to taking "major Federal actions significantly affecting the quality" of the environment. 42 U.S.C. § 4332(2)(C). Some proposed federal actions categorically require the preparation of an EIS. If the proposed action does not categorically require the preparation of an EIS, the agency must prepare an Environmental Assessment ("EA") to determine whether the action will have a significant effect on the environment. See 40 C.F.R. § 1501.4 (Council on Environmental Quality ("CEQ") regulations implementing NEPA); Metcalf, 214 F.3d at 1142. If the EA reveals that the proposed action will significantly affect the 2 environment, then the agency must prepare an EIS. If the EA 3 reveals no significant effect, the agency may issue a Finding of No 4 Significant Impact ("FONSI"). See 40 C.F.R. §§ 1501.4; see also 5 Metcalf, 214 F.3d at 1142. 6
C. Endangered Species Act 7
The Endangered Species Act ("ESA") established a program for 8 conserving certain species listed by the Secretaries of the 9 Interior and Commerce as endangered or threatened species ("listed species"). 16 U.S.C. §§ 1531(b), 1532(6), (20), 1533. Where an agency determines that its action "may affect listed species or designated critical habitat[,] 50 C.F.R. § 402.14(a), it must pursue some form of consultation ("informal" or "formal"), with the U.S. Fish and Wildlife Service ("USFWS") or the National Marine Fisheries Service. 50 C.F.R. §§ 402.13, 402.14. If the agency determines that a particular action will have "no effect" on a listed species or critical habitat, there is no consultation requirement. 50 C.F.R. § 402.12; Sw. Ctr. For Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1447 (9th Cir. 1996).
Dismissal is appropriate under Rule 12(b)(1) when the District Court lacks subject matter jurisdiction over the claim. Fed. R. Civ. P. 12(b)(1).
When a defendant brings a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff has the burden of establishing subject matter 2 jurisdiction. See Rattlesnake Coal. v. U.S. E.P.A., 509 F.3d 1095, 3 1102, n.1 (9th Cir. 2007) ("Once challenged, the party asserting ...