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Ridge Top Ranch, LLC v. United States Fish & Wildlife Service

United States District Court, E.D. California

March 3, 2014

RIDGE TOP RANCH, LLC, Plaintiff,
v.
UNITED STATES FISH & WILDLIFE SERVICE; DANIEL M. ASHE, DIRECTOR, UNITED STATES FISH AND WILDLIFE SERVICE, Defendants.

ORDER

LAWRENCE K. KARLTON, Judge.

Plaintiff Ridge Top Ranch, LLC has sued defendants U.S. Fish and Wildlife Service ("FWS, " or the "Service"), and FWS's Director, Daniel M. Ashe, alleging violations of the Endangered Species Act ("ESA") and the Administrative Procedure Act ("APA"). Ridge Top's motion for a preliminary injunction came on for hearing on February 21, 2014. Having considered the parties' arguments and their filings herein, the court will deny the motion, for the reasons set forth below.

I. BACKGROUND

A. Statutory Background

The court will begin by noting relevant aspects of the ESA and its implementing regulations, in order to provide context for the discussion that follows.

In enacting the ESA, "Congress' intent [was] to provide comprehensive protection for endangered and threatened species." Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or. , 515 U.S. 687, 698 (1995). An "endangered" species is "in danger of extinction throughout all or a significant portion of its range...." 16 U.S.C. § 1532(6). A "threatened" species is "likely to become an endangered species within the foreseeable future...." 16 U.S.C. § 1532(20). "[T]he ESA was enacted not merely to forestall the extinction of species ( i.e., promote... species survival), but to allow a species to recover to the point where it may be delisted." Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv. , 378 F.3d 1059, 1070 (9th Cir. 2004), amended by 387 F.3d 968 (9th Cir. 2004). "The plain intent of Congress in enacting [the ESA] was to halt and reverse the trend toward species extinction, whatever the cost." TVA v. Hill , 437 U.S. 153, 184 (1978).

ESA Section 7 imposes an affirmative duty on federal agencies 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] habitat of such species...." 16 U.S.C. § 1536(a)(2). In order to ensure compliance with this requirement, agencies, before beginning designated actions (such as "major construction activities") must prepare a biological assessment to determine whether listed species or critical habitat "are likely to be adversely affected" by the proposed action. 50 C.F.R. § 402.12. If so, the agency must formally consult with the appropriate consulting agency - here, FWS - before undertaking the action. 50 C.F.R. § 402.14.

Formal consultation concludes with FWS's issuance of a biological opinion that addresses "whether the action, taken together with cumulative effects, is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat." 50 C.F.R. § 402.14(g)(4). If jeopardy or adverse modification is likely, "then any take resulting from the proposed action is subject to section 9 liability (unless that take is authorized by other provisions of the ESA not relevant here)."[1] Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt. , 698 F.3d 1101, 1107 (9th Cir. 2012). Although an agency is "technically free to disregard the Biological Opinion and proceed with its proposed action... it does so at its own peril (and that of its employees), for any person' who knowingly takes' [a member of] an endangered or threatened species is subject to substantial civil and criminal penalties, including imprisonment." Bennett v. Spear , 520 U.S. 154, 170 (1997). Due to the stringency of these penalties, the Supreme Court characterizes the effect of biological opinions as "virtually determinative" of agency compliance. Id.

On the other hand, if FWS concludes that no species jeopardy or adverse modification of critical habitat will occur, but that the project is nevertheless likely to result in the "incidental take" of species members, it must issue an incidental take statement along with the biological opinion. 50 C.F.R. § 402.14(i). The incidental take statement must: "(1) specify the impact of the incidental taking on the species; (2) specify the reasonable and prudent measures' that the FWS considers necessary or appropriate to minimize such impact; (3) set forth terms and conditions' with which the action agency must comply to implement the reasonable and prudent measures (including, but not limited to, reporting requirements); and (4) specify the procedures to be used to handle or dispose of any animals actually taken." Or. Natural Res. Def. Council v. Allen , 476 F.3d 1031, 1034 (9th Cir. 2007) (quoting 16 U.S.C. § 1536(b)(4) and 50 C.F.R. § 402.14(i)). The incidental take statement "functions as a safe harbor provision immunizing persons from Section 9 liability and penalties for takings committed during activities that are otherwise lawful and in compliance with its terms and conditions." Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife , 273 F.3d 1229, 1239 (9th Cir. 2001). Nevertheless, the agency is under an ongoing obligation to report to FWS on "the progress of the action and its impact on the species, " and if "during the course of the action the amount or extent of incidental taking... is exceeded, " the agency "must reinitiate consultation immediately." 50 C.F.R. § 402.14 (i) (3), (4).

The agency must also reinitiate consultation if one of these four conditions obtains:

(a) If the amount or extent of taking specified in the incidental take statement is exceeded;
(b) If new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered;
(c) If the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion; or
(d) If a new species is listed or critical habitat designated that may be affected by the identified action.

50 C.F.R. § 402.16. "When reinitiation of consultation is required, the original biological opinion loses its validity, as does its accompanying incidental take statement, which then no longer shields the action agency from penalties for takings." Ctr. for Biological Diversity , 698 F.3d at 1108.

With this overview in mind, the court turns to the facts presented herein.

B. Factual & Procedural Background

1. The Interchange Project

This case arises by virtue of a proposed highway construction project in Solano County, described as follows:

The Solano Transportation Authority (STA) is a Joint Powers Authority with members including the cities of Benicia, Dixon, Fairfield, Rio Vista, Suisun City, Vacaville, and Vallejo, and the County of Solano....
I-80 is a major transcontinental highway route, typically six to eight lanes. The corridor within Solano County functions as an essential commuter route within the San Francisco Bay Area....
The existing I-80/I-680/SR 12 interchange complex was constructed approximately 40 years ago, and current traffic demands have resulted in extreme congestion, delays, substantial traffic diversion, and unacceptable levels of service. The proposed improvements are designed to reduce congestion, accommodate anticipated increases in traffic, and address safety concerns.
Caltrans, in cooperation with the STA and the Federal Highway Administration, proposes to improve the interchanges... in the vicinity of City of Fairfield.... (Request for Proposals 1, Exh. B to Declaration of Timothy G. Roberts ("Roberts Decl."), ECF No. 10-3.)

In connection with this effort, termed the I-80/I-680/SR-12 Interchange - Phase 1 Project ("Interchange Project"), the California Department of Transportation ("Caltrans")[2] initiated consultation with FWS regarding the effects of the Interchange Project on a number of threatened and endangered species, including the callippe silverspot butterfly and the California red-legged frog.[3]

2. The Biological Opinion and the accompanying Incidental Take Statement

At the conclusion of the consultation with Caltrans, FWS issued an initial Biological Opinion, dated April 16, 2012, specifying measures "intended to avoid and minimize direct and indirect effects to California red-legged frog, " including the provision of appropriate habitat compensation. (Biological Opinion 25, Exh. C. to Roberts Decl., ECF No. 10-3.)

The Biological Opinion identifies three "critical habitat units" for the California red-legged frog which are affected by the Interchange Project, termed "SOL-1, " "SOL-2, " and "SOL-3." (Each of these habitat units comprises several thousand acres.) According to the Biological Opinion, "SOL-2 is considered essential for the California red-legged frog because it provides connectivity from Napa County south to unit SOL-3.... The connectivity function of the three [] units is dependent upon maintaining red-legged frog passage across I-80 and Jameson Canyon Road...." (Biological Opinion 41-42.)

Defendants highlight a portion of the Biological Opinion which describes a pond (the "Mangels' pond") which is "likely the primary population source [for California red-legged frog] for the western portion of the SOL-2 critical habitat unit." (Biological Opinion 53.) The Biological Opinion expresses the following concerns regarding the Interchange Project's effect on this habitat:

• "Isolation of this breeding pond from the remainder of the surrounding habitat will reduce the size and distribution of California red-legged frogs in the SOL-2 unit by severing or limiting connectivity of what is now largely contiguous habitat north and south of the proposed Business Center Drive Extension." (Id. 53.)
• "With the addition of the [proposed construction], frogs and other wildlife will be limited to 35 feet of crossing opportunities along the 0.79 mile Business Center Drive Extension.... Construction of this barrier will reduce dispersal to 0.8 percent of the original topography that was available for movement. This adverse effect could be partially minimized if one or more breeding ponds would be constructed north of the Business Center Drive Extension." (Id.)
• "The development associated with the proposed Business Center Drive Extension will further reduce available foraging and dispersal habitat for California red-legged frogs that breed in Mangels' pond and disperse widely to the north and west. [Proposed development] is likely to significantly reduce the size and distribution of frogs that occupy the area from Mangels' pond northward into Napa County as animals will become less successful at reaching Mangels' pond to breed and disperse north as juveniles and lose the ability to live in the area south of the road extension as habitat is lost to development." (Id. 53-54.)

The Biological Opinion then identifies two "keys" to minimizing these adverse effects:

1. "Easements south of the proposed Business Center Drive Extension that connect Mangels' pond and the Business Center Drive Extension underpasses, " and
2. "Easements north of the Business Center Drive Extension." (Biological Opinion 54.)

The relevant portion of the Biological Opinion concludes with the following: "Caltrans' proposal to compensate for permanent and temporal habitat loss with in-perpetuity preservation of 245.1 acres of California red-legged frog habitat in Solano County will likely offset the adverse effects of the project and provide a benefit for the species. This habitat will be permanently protected and a management plan will be implemented which will aid the species." (Id.)

For the purposes of this motion, the most salient portion of the Biological Opinion specifies measures "intended to avoid and minimize direct and indirect effects to California red-legged frog, " including the provision of appropriate habitat compensation. (Biological Opinion 25.) Ridge Top highlights the following:

California red-legged frog habitat used for conservation will be: (1) preferably located within the California Red-Legged Frog Conservation Area defined in the Draft Solano HCP (SCWA 2009), [4] (2) within 0.7 mile [ sic ] of unobstructed California red-legged frog breeding habitat and non-breeding aquatic habitats, (3) within a California red-legged frog critical habitat unit or within the vicinity of frog critical habitat, and (4) approval [ sic ] by the Service.[5] (Id. 26.)

The Biological Opinion also includes an Incidental Take Statement authorizing "take incidental to the proposed action as: (1) the injury and mortality of two adult or juvenile California red-legged frogs; and (2) the capture, harm and harassment of all California red-legged frogs within the construction footprint." (Id. 58.)

3. Request for Proposals; the Ridge Top Proposal

Subsequently, the Solano Transportation Authority ("STA") issued a Request for Proposals, dated May 20, 2013, for California red-legged frog and callippe silverspot butterfly environmental mitigation habitat in connection with the Interchange Project ("RFP"). (Request for Proposals, Exh. B to Roberts Decl., ECF No. 10-3.) The RFP concludes with the following:

Each proposal will be reviewed to determine if it meets the minimum documentation requirements set forth above in Section 3.0 [titled "Scope of Services"]. A Notice of Intent to Award will be issued to the Mitigation Provider offering the lowest cost proposal that meets the minimum requirements. STA staff will start contract negotiations with the selected Provider pending final approval by [FWS] and [the] Regional Water Quality Control Board.
The STA reserves the right to consider or reject any and all bids at its own discretion. The STA further reserves the right to reject all bids and issue a new RFP. (RFP 7, ECF No. 10-3.)

Plaintiff Ridge Top, together with its environmental consultant, WRA, Inc., submitted a proposal in response to the RFP, dated June 7, 2013; the proposal concerns a conservation bank, on land owned by Ridge Top, to be used for mitigation in Solano County. ("Ridge Top Proposal, " Exh. A to Roberts Decl., ECF No. 10-3.)

4. Caltrans's reinitiation request; communications regarding the Ridge Top Proposal

On May 30, 2013, shortly before Ridge Top submitted its proposal, Caltrans "informed the Service via an electronic mail (e-mail) message that they were planning to reinitiate consultation on the April 16, 2012 [Biological Opinion]." (Amended Biological Opinion 2, Exh. C to Declaration of Jennifer Norris ("Norris Decl."), ECF No. 18-4.)

On June 14, 2013, FWS "met with Caltrans and [STA's] consultant to discuss the proposed reinitiation. The meeting focused on the gas valve lot relocation."[6] (Amended Biological Opinion 2.) On June 19, 2013, FWS met with Caltrans and STA to discuss the proposals submitted in response to the RFP. According to the Amended Biological Opinion, "The Service was asked to review the sites and provide feedback to STA and Caltrans prior to their selection. STA stated that they favored the Ridge Top Ranch site. The Service informed STA and Caltrans that Ridge Top Ranch was not an appropriate site to offset the effects of the project." (Amended Biological Opinion 3.)

STA thereafter sent WRA (Ridge Top's environmental consultant) a letter, dated July 9, 2013, which provided in pertinent part:

[STA] has evaluated all of the proposals and has determined your firm is the "Apparent Successful Proposer" to provide California Red-Legged Frog, Callippe Silverspot Butterfly, and Oak Woodland/Riparian Habitat for the [Interchange Project] mitigation.... I use the term "Apparent Successful Proposer" since STA is in the process of submitting your proposal and supplementary information to Caltrans for submittal to [FWS] for review and approval. Final contract award is predicated on [FWS]'s approval. (Exh. D to Roberts Decl., ECF No. 10-4.)

On July 11, 2013, FWS "participated in a conference call with STA and Caltrans regarding the Ridge Top Ranch proposal. The Service explained that Ridge Top Ranch was not appropriate for the project. STA requested that the Service present [its] response in a letter." (Amended Biological Opinion 3.)

In a letter dated July 24, 2013, Caltrans notified FWS that it was requesting reinitiation of formal consultation on the Interchange Project. (Exh. B to Norris Decl., ECF No. 18-3.)

In a letter to STA and Caltrans, dated August 6, 2013, FWS set forth its view that, while the Ridge Top mitigation site "likely w[ould] provide adequate compensation for the callippe silverspot butterfly[, ]" it would not "adequately compensate for the adverse effects on the California red-legged frog that would result from the [Interchange Project]." ("August 6 Letter, " Exh. F to Roberts Decl., ECF No. 10-4.) In the Letter, FWS highlighted the importance of the frog being able to "complete long-distance movement between critical habitat units SOL-1, SOL-2, and SOL-3." (Id. 2.) As the Interchange Project threatened loss of habitat connectivity in SOL-2, the FWS determined that "the compensation should include appropriate habitat connectivity." (Id.) The Ridge Top site was found lacking because it "is located at the southern end of critical habitat unit SOL-1 and it will not enhance or maintain movement through SOL-2 between the coast range and critical habitat units SOL-1 and SOL-3." (Id. 3.)

STA then sent WRA (Ridge Top's environmental consultant) a letter, dated August 12, 2013, which provided:

STA's RFP... included an extensive list of minimum requirements for mitigation proposals. Key amongst them was that the mitigation proposals must have " demonstrated ability to obtain approval by the U.S. Fish and Wildlife Service by November 30, 2013. "
In order for STA to determine if your submittal would meet this requirement, Caltrans submitted WRA's proposal to the U.S. Fish and Wildlife Service on July 9, 2013 for review and comment. STA and Caltrans also provided the Service supplemental information provided by WRA on July 3, 2013 regarding proximity of the site to breeding habitat; WRA's July 8, 2013 correspondence regarding further clarification about proximity to breeding habitat and known frog occurrences; and, WRA's July 15, 2013 correspondence regarding contamination issues at or near the proposed mitigation property.
The Service has reviewed WRA's mitigation proposal and supplemental information and determined the Ridge Top Ranch will not adequately compensate for the adverse effects on the California red-legged frog that would result from the Interchange Project....
Unfortunately with this determination by the Service, your mitigation proposal does not meet the minimum requirements of STA's RFP... and therefore STA and Caltrans must move on to the next qualified submittal. (Exh. E to Roberts Decl., ECF No. 10-4.) (emphasis in original).

Ridge Top has filed with the court several internal FWS emails that it obtained through a Freedom of Information Act request. One such email, dated August 22, 2013, sent by a Deputy Assistant Field Supervisor in Sacramento, provides:

I believe there is one very large problem with the current iteration of this letter, that being the approach of saying one site is better than another because it is closer to the impact site. While this may be what we all want... this is not, and never has been, our mitigation policy in the office. [...] We do not require that impacts be compensated at the bank closest to the impact site. This is, in effect, what this current letter is doing. So whatever your rationale ends up being for choosing one site over the other, I think if you go down the current route of geographically limiting how far out compensation sites can be from the impact sites, it will put us in a very vulnerable legal position. (Exh. L to Roberts Decl., ECF No. 10-4.)

FWS subsequently sent STA and Caltrans a letter, dated September 3, 2013 ("September 3 Letter, " Exh. J to Roberts Decl., ECF No. 10-4), which it characterizes as a "supplemental letter... restat[ing] that the Ridge Top Ranch site would be acceptable compensation for the callippe silverspot butterfly but would not be acceptable for California red-legged frog. [The] response further clarified what the Service considered appropriate habitat compensation for the described adverse effects to the California red-legged frog." (Amended Biological Opinion 4.)

5. Ridge Top's response

Ridge Top, through its counsel, then sent FWS a letter, dated September 9, 2013, setting forth its position that the August 6 and September 3 Letters violated the ESA and the APA. (Exh. I to Roberts Decl., ECF No. 10-4.) Four days later, Ridge Top followed up with a sixty-day notice of its intent to sue FWS for violations of the ESA. (Exh. J to Roberts Decl., ECF No. 10-4.)

A Ridge Top employee avers as follows:

In a telephone conversation on November 22, 2013, involving representatives of Ridge Top, WRA, Caltrans and [STA], the Caltrans and [STA] representatives stated in [ sic ] that that they have solicited bids for construction of the [Interchange] Project and expect to break ground in April or May of 2014. Based on the discussion during that telephone conversation, there is a real risk that Caltrans and the [STA] will be unwilling very soon to accept further delay to the [Interchange] Project that may result from Fish & Wildlife's position stated in its August 6 and September 3 letters mentioned above. During that conversation, the Caltrans and [STA] representatives specifically informed Ridge Top's representatives that the requirement in the 4/16/12 Biological Opinion that habitat mitigation be in place 60 days before [Interchange] Project construction begins may require them to obtain the mitigation sought by the Solano RFP elsewhere than from Ridge Top.[7] (Roberts Decl. ¶ 22.)

On November 26, 2013, Ridge Top filed suit against FWS, asserting claims under the APA, 5 U.S.C. § 706, and the citizen suit provisions of the ESA, 16 U.S.C. § 1540(g).

On December 5, 2013, Ridge Top filed the instant motion for a preliminary injunction, seeking to enjoin defendants:

1) from taking any action that prevents Caltrans and the [STA] from obtaining habitat mitigation from Ridge Top pursuant to Ridge Top's winning proposal submitted in response to the [RFP], and
2) from taking any action that would directly or indirectly grant approval for Caltrans and/or the [STA] to obtain the mitigation described in the [RFP], including habitat mitigation for the California red-legged frog, from any source other than Ridge Top. (Proposed Order ¶ 2, ECF No. 10-5.)

Ridge Top also seeks a declaration that "[t]he determination made by [FWS] that Ridge Top's winning proposal does not provide acceptable habitat mitigation under the ESA is... unlawful and is set aside and invalidated." (Id. ¶ 3.)

6. The Amended Biological Opinion

On December 19, 2013, FWS issued an amendment to the Biological Opinion. It provides, inter alia, that "[a]cceptable compensation [for specified harms to the California red-legged frog] would include the preservation of occupied or dispersal habitat in dispersal distance from the Mangels pond which would maintain the local population of the California red-legged frog and allow movement and connectivity between the SOL-2 and SOL-3 critical habitat units." (Amended Biological Opinion 13.) The Amended Biological Opinion also added Term and Condition 1q, which provides that habitat compensation "shall be subject to Service approval and at a minimum shall be located within 2 miles of the affected frog habitat, have connectivity with the affected frog habitat, be occupied or suitable for dispersal and be located within the affected critical habitat units SOL-2 or SOL-3...." (Id. 15.) According to defendants, Ridge Top Ranch fails to meet these requirements, as it is located "at the southern end of the SOL-1 critical habitat unit and would not address the loss of northern habitat connectivity between SOL-2 and SOL-3." (Sur-reply 2, ECF No. 23.)

7. The court's prior order herein

By order dated January 31, 2014, as corrected on February 3, 2014, the court noted its willingness to consider that portion of Ridge Top's proposed preliminary injunction which would enjoin the defendants "from taking any action that would directly or indirectly grant approval for Caltrans and/or the [STA] to obtain the mitigation described in the [RFP], including habitat mitigation for the California red-legged frog, from any source[.]" (ECF Nos. 21, 22.) Such an injunction would prevent FWS from approving any proposed frog habitat mitigation and thereby preserve the status quo until the court reached a determination on the merits of Ridge Top's claims.

The court was nonetheless concerned that Ridge Top had failed to show a sufficient likelihood of success on the merits to merit injunctive relief. Under Ninth Circuit precedent, it is well-settled that "[w]hen reinitiation of consultation is required, the original biological opinion loses its validity, as does its accompanying incidental take statement, which then no longer shields the action agency from penalties for takings." Ctr. for Biological Diversity , 698 F.3d at 1108. Further, "issuance of a superseding biological opinion moots issues... relating to the preceding [biological opinion]." Grand Canyon Trust v. U.S. Bureau of Reclamation , 691 F.3d 1008, 1017 (9th Cir. 2012). It therefore appeared that (i) the Biological Opinion and the Incidental Take Statement were invalid as of July 24, 2013, (ii) FWS could not approve any mitigation proposal until the reinitiated consultation concluded with the issuance of the Amended Biological Opinion, and (iii) any alleged irregularities in FWS's handling of the Ridge Top Proposal were mooted by the Amended Biological Opinion.

In its reply brief, Ridge Top nevertheless attacked the Amended Biological Opinion as an "arbitrary, capricious and unlawful agency action that should be invalidated[, ]" (Reply 11, ECF No. 16), and alleged the following substantive flaws in the document:

• The new requirement that California red-legged frog habitat mitigation be located within two miles of the Interchange Project site is substantially different from the corresponding requirement in the Incidental Take Statement, which allowed habitat mitigation to be obtained anywhere within, or in the vicinity of, frog critical habitat within California - habitat which apparently encompasses more than 1.5 million acres of land in twenty-seven California counties. According to Ridge Top, FWS neither based this new requirement on the "best scientific and commercial data available, " 16 U.S.C. § 1536(a)(2) (addressing consultation requirements), nor did the agency "examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." (Reply 13) (quoting Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mutual Auto Ins. Co. , 463 U.S. 29, 43 (1983)).
• FWS's assertion in the Amended Biological Opinion that impacts to the California red-legged frog and/or its habitat have increased are "demonstrably false[, ]" as the impacts FWS cites are contemplated by the initial Biological Opinion. (Reply 13-14.)

After reviewing the parties' filings, the court determined that it needed to hear from defendants regarding whether, in issuing new requirements for California red-legged frog habitat mitigation, (i) FWS articulated "a rational connection between the facts found and the choice made, " Arizona Cattle Growers' Ass'n, 273 F.3d at 1236, and (ii) whether FWS had the legal authority to revise requirements that apparently were not raised by Caltrans in its reinitiation request and follow-on communications with FWS. (Order, ECF No. 21.) These issues are addressed by defendants' sur-reply. (ECF No. 23).

As a final note, defendants have submitted a letter from Caltrans to FWS, dated December 26, 2013, seeking further amendments to the Biological Opinion. (Exh. 1 to Second Declaration of Jennifer Norris ("Second Norris Decl."), ECF No. 23-1.) Defendants contend that this letter constitutes yet another request to reinitiate consultation on the Interchange Project. By letter dated February 6, 2014, FWS responded, stating that it needs more information before it will reopen consultation. (Exh. 2 to Second Norris Decl.)

II. STANDARD

"An injunction is a drastic and extraordinary remedy, which should not be granted as a matter of course." Monsanto Co. v. Geertson Seed Farms , 561 U.S. 139, ___, 130 S.Ct. 2743, 2761 (2010).

To obtain a preliminary injunction, a plaintiff "must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Res. Def. Council , 555 U.S. 7, 20 (2008).

Even if the moving party cannot show a likelihood of success on the merits, "serious questions going to the merits and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest." Alliance for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1135 (9th Cir. 2011) (internal quotation omitted). See also DISH Network Corp. v. FCC , 653 F.3d 771, 776 (9th Cir. 2011) ("To warrant a preliminary injunction, [the moving party] must demonstrate that it meets all four of the elements of the preliminary injunction test established in Winter[.]").

In determining whether a preliminary injunction should issue, the court is free to consider inadmissible evidence, including hearsay. Herb Reed Enters. v. Florida Entm't Mgmt. , 736 F.3d 1239, 1250 n. 5 (9th Cir. 2013).

III. ANALYSIS

A. Request for Judicial Notice

Five days after defendants filed their sur-reply, Ridge Top, without leave of the court, filed a request for judicial notice. (ECF No. 26.) Ridge Top requests that the court take notice of a letter, dated February 11, 2014, from Caltrans to FWS's Sacramento office, which criticizes both the process used to generate the Amended Biological Opinion and that Opinion's content, particularly the modified requirements for California red-legged frog habitat.

Six days later, defendants (also without leave of the court) filed a responsive request for judicial notice, seeking notice of a letter, dated February 18, 2014, from FWS to Caltrans that purports to rebut the criticisms in Caltrans's letter. (ECF No. 29.)

Ridge Top argues that judicial notice of the February 11 Caltrans letter may be taken under Fed.R.Evid. 201(b), which provides that a fact may be judicially noticed if it is "not subject to reasonable dispute, " either because it is "generally known within the territorial jurisdiction of the trial court" or it is "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Ridge Top has failed to identify the "source whose accuracy cannot reasonably be questioned" to which the court may resort to verify the letter. Moreover, the court declines to take judicial notice of this document wholesale, as to do so may lead to unforeseen consequences. Per Wright & Miller:

Courts could save themselves much grief and embarrassment by insisting that lawyers specify precisely the fact to be noticed. Similarly, lawyers should treat precedents with suspicion when the fact noticed seems loosely stated. For example, courts that do not specify the "fact" being noticed when they take notice of "court records" can end up turning a hearsay statement into "truth" by the alchemy of judicial notice. Astute courts reiterate that while court records may be sources of reasonably indisputable accuracy when they memorialize some judicial action, this does not mean that courts can notice the truth of every hearsay statement filed with the clerk. To do so would make judicial notice a kind of bastard res judicata in which parties end up being bound by facts they never had any opportunity to contest. Courts can avoid this by carefully specifying just what is being noticed; e.g., that the court merely notices that something was said at a hearing for the purpose of inferring its affect [ sic ] on the persons who heard it, not for its truth.

21B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 5104 (2d. ed. 2013) ("Facts Judicially Noticeable; Indisputability").

Alternately, Ridge Top argues that judicial notice may be taken under Fed.R.Evid. 902(1), which provides that "[a] document that bears a seal purporting to be that of... any state... of the United States... and a signature purporting to be an execution or attestation" is self-authenticating and therefore requires "no extrinsic evidence of authenticity in order to be admitted[.]" Ridge Top misunderstands the purpose of the cited Rule of Evidence, which is intended to streamline the foundational requirements for certain documents, rather provide an alternate basis for judicial notice.

Defendants, in turn, seek judicial notice of FWS's February 18 letter to Caltrans "pursuant to the same principles" under which Ridge Top sought judicial notice. (ECF No. 29.) Defendants' request fails for the same reasons that Ridge Top's does.

Finally, even if the court were to take judicial notice of these letters, it could not ascribe any truth to the representations contained in either. "A court can only take judicial notice of the existence of those matters of public record... but not of the veracity of the arguments and disputed facts contained therein." U.S. v. S. Cal. Edison Co. , 300 F.Supp.2d 964, 974 (E.D. Cal. 2004) (Wanger, J.). It is therefore unclear what the parties hoped to accomplish by submitting these letters to the court.

B. Motion for Preliminary Injunction

The question, then, is whether to preliminarily enjoin FWS from taking any action that would directly or indirectly grant approval for Caltrans and/or the STA to obtain the mitigation described in the RFP, including habitat mitigation for the California red-legged frog, from any source, including Ridge Top. Such an injunction would preserve the status quo pending a determination on the merits.

In its complaint, Ridge Top seeks, in addition to attorneys' fees and costs, the following:

A. A declaratory judgment invalidating the determination made by Defendant Fish & Wildlife in its August 6 and September 3, 2013 letters that Ridge Top's proposal in response to the Solano RFP will not provide acceptable mitigation for the adverse effects of the I-80/I-680/SR 12 Interchange project on the California red-legged frog - that is, the Unlawful Fish & Wildlife Determination mentioned above.
B. An injunction that 1) prevents Defendant Fish & Wildlife and its Director from taking any action that prevents Caltrans and the Solano Transportation Authority from obtaining habitat mitigation from Ridge Top pursuant to Ridge Top's winning proposal submitted in response to the Solano RFP, and 2) prevents Fish & Wildlife from taking any action that would directly or indirectly grant approval for Caltrans and/or the Solano Transportation Authority to obtain the mitigation described in the Solano RFP, including habitat mitigation for the California red-legged frog, from any source other than Ridge Top. (Complaint, ECF No. 1.)

Having thoroughly considered the parties' arguments and the record, it appears that Ridge Top has no likelihood of obtaining these remedies, and therefore, that its motion for a preliminary injunction should be denied.

Under ESA Section 7, FWS's paramount obligation is to "insure" that the Interchange Project "is not likely to... result in the destruction or adverse modification of habitat of [endangered or threatened] species...." 16 U.S.C. § 1536(a)(2). In fulfilling this statutory mandate, the agency must, of course, follow all relevant procedural obligations imposed by the ESA and the APA. But what is apparent to the court is that, while the agency has an obligation to correct its procedural missteps, such missteps alone cannot be grounds for compelling the agency to violate its statutory mandate. In other words, a district court cannot compel FWS to accept a mitigation proposal that, in the agency's view, does not satisfactorily compensate for the adverse effects to California red-legged frog habitat. And that is precisely the remedy which Ridge Top seeks in its complaint.

In their sur-reply, defendants take the position that the Biological Opinion itself provides a sufficient basis for the new requirement that habitat compensation "shall be subject to Service approval and at a minimum shall be located within 2 miles of the affected frog habitat, have connectivity with the affected frog habitat, be occupied or suitable for dispersal and be located within the affected critical habitat units SOL-2 or SOL-3." (Sur-reply 2) (quoting Amended Biological Opinion 15).

Defendants assert "wide discretion" to impose this requirement in approving habitat mitigation proposals, because FWS approval is one of the four conditions for acceptable habitat compensation included in the Biological Opinion.[8] (Sur-reply 2.)

Defendants also claim that they have adduced sufficient new data ( i.e., data collected after the Biological Opinion was issued) to justify the revised habitat mitigation requirements set forth in the Amended Biological Opinion. Defendants note that, "As the reinitiation process unfolded, Caltrans provided additional information indicating that other project activities would impact [California red-legged frog] in ways not analyzed in the [Biological Opinion]." (Sur-reply 5.) This information includes:

• The discovery of at least five frogs[9] in an area designated "Wetland 149a, " which is eventually slated to be removed, as it is within a planned right-of-way.[10] (Amended Biological Opinion 5.) Defendants allege that Wetland 149a is south of the Mangels' pond. (Recall that this pond is "likely the primary population source [for California red-legged frog] for the western portion of the SOL-2 critical habitat unit." (Biological Opinion 53.))
• Identification of "an additional 0.17 acre of work space... to complete a directional drill"; Caltrans, in turn, identified this space as California red-legged frog habitat. (Amended Biological Opinion 5.)
• Potential road realignment, impacting California red-legged frog habitat. (Id. 5-6.)
• An email message from Caltrans to FWS expressing a desire to revise Conservation Measure 24a, "intended to avoid and minimize direct and indirect effects to California red-legged frog." (Id. 6; Biological Opinion 25.)

According to defendants, after FWS analyzed all of this information, it "concluded that Caltrans' construction activities in the immediate vicinity of the occupied wetland area represented a risk of [California red-legged frog] take not analyzed in, or authorized by, the [Biological Opinion]." (Sur-reply 6) (citations to Amended Biological Opinion omitted). FWS also determined that "the proposed changes will result in additional loss of habitat, including direct effects to breeding habitat." Id . Consequently, the agency decided to place a "greater emphasis on Caltrans providing conservation that directly addresses the adverse effects" on California red-legged frog habitat (Amended Biological Opinion 13), and revised the Amended Biological Opinion accordingly. (Sur-reply 6.)

The Supreme Court has described the standard for reviewing agency action under the APA as follows:

The scope of review under the "arbitrary and capricious" standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. In reviewing that explanation, we must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies: We may not supply a reasoned basis for the agency's action that the agency itself has not given. We will, however, uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned.

Motor Vehicle Mfrs. Ass'n , 463 U.S. at 43 (internal citations and quotations omitted).

It is evident to the court that FWS's decision to reject the Ridge Top Proposal as inadequate meets the standards set forth in this passage. Whether (i) FWS's justification was articulated in the Biological Opinion but was mistakenly omitted from the initial requirements, [11] or (ii) Caltrans and FWS contemplated a process whereby the requirement of FWS approval would allow the agency to evaluate habitat compensation proposals as they were submitted, or (iii) new data was presented to FWS that led to the revised requirements in the Amended Biological Opinion, there is no evidence to suggest that "the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Id.

To find in Ridge Top's favor, the court would have to second-guess the agency's scientific and technical determination. But FWS's reasoned determination to alter California red-legged frog habitat mitigation requirements "is precisely the sort of decision within the agency's technical expertise that we are not free to second-guess." Arizona Cattle Growers' Ass'n, 606 F.3d at 1171. None of this should minimize the very real concerns for procedural transparency and fairness that are implicated by this case. FWS ought to have done a better job of specifying requirements for habitat mitigation in the Biological Opinion. But such procedural criteria cannot trump the agency's obligation to the statute. Ridge Top has no chance of success given that FWS has concluded that the existing data support the more-rigorous habitat requirements set forth in the Amended Biological Opinion.

Ridge Top disputes the validity of the Amended Biological Opinion because, it contends, the revisions to the habitat requirements far exceed the scope of Caltrans's reinitiation request. (Reply 12-13.) Caltrans's request provides that it reopened consultation based on "project design modifications [that] do not change any of the determinations in the [Biological Opinion, ]" though it conceded that "the project footprint and the area of impacts to listed species (California red legged frog and Callippe silversport butterfly) will increase, by a small amount...." (Exh. C to Norris Decl., ECF No. 15-3.)

FWS responds as follows:

To the extent that any of the Court's questions, or Plaintiff's arguments, imply that the scope of reinitiated consultation is limited by the reinitiation trigger, [defendants] respectfully disagree. After an action agency reinitiates consultation, nothing in the statute or the regulations limits the agency's authority or the scope of the reinitiated consultation process. Rather, the Service is obligated to update the analyses of its biological opinion to conform to all of the requirements of ESA Section 7, 16 U.S.C. § 1536; 50 C.F.R. § 402.14. (Sur-reply 10-11.)

The court can find no legal authority to the contrary. FWS was not obligated to tailor the parameters of the Amended Biological Opinion to fit the contours of Caltrans's reinitiation request. Accordingly, it appears that defendants had the legal authority to issue amended requirements for California red-legged frog habitat mitigation even if these requirements were not the basis for Caltrans's request to reinitiate consultation.

Ridge Top also contends that defendants failed to comply with the ESA Section 7 mandate that "[i]n fulfilling the requirements of this paragraph each agency shall use the best scientific and commercial data available." 16 U.S.C. § 1536(a)(2). Specifically, Ridge Top contends that FWS failed to "use the best scientific and commercial data available" in promulgating new habitat mitigation requirements. (Reply 13.)

Defendants respond that the revised requirements for California red-legged frog habitat mitigation are in fact based on "the best scientific and commercial data available." (Sur-reply 7.) More than six pages of the Biological Opinion are devoted to summarizing and synthesizing scientific publications and data regarding the California red-legged frog and its habitat. (Biological Opinion 32-38.) In reaching its conclusions, FWS also relied upon the "Solano Multispecies Habitat Conservation Plan Final Administrative Draft, " which the agency described as including "the most complete regional scientific data and analysis for the California red-legged frog in Solano County." (Id. 42.) According to defendants, FWS's "analysis of the impacts of the project upon CRLF and its critical habitat builds directly upon these analyses and scientific sources." (Sur-reply 8.)

The burden lies with the party seeking a preliminary injunction to demonstrate its likelihood of success on the merits. But while Ridge Top characterizes FWS as failing to use the best scientific and commercial data available, it has in turn failed to adduce any support for this claim. Given the significant scientific evidence marshaled by the defendants, the court cannot find in Ridge Top's favor on this point.

FWS is immune to suit for damages. Accordingly, the only relief that the court can award is injunctive. But what Ridge Top seeks is not, e.g., an agency remand in order to clarify the record, but an order that would force the agency to approve the Ridge Top Proposal. Yet, whether the agency reached its current position due to its initial data, reconsideration of this data after receiving the initial bids, or new data, the agency's current position regarding compensation requirements appears both reasoned and based on the available data. Under such circumstances, a "court cannot lawfully second-guess the agency, unless clear scientific error or bad faith is so manifest that the agency's judgments can no longer be trusted[, ]" which is not the case here. In re Consolidated Salmonid Cases , 791 F.Supp.2d 802, 844 (E.D. Cal. 2011) (Wanger, J.). The court cannot compel FWS to violate its reasoned determination that the Ridge Top Proposal fails to meet ESA standards for California red-legged frog habitat compensation.

In light of the foregoing, the court hereby DENIES plaintiff Ridge Top's motion for a preliminary injunction.

IT IS SO ORDERED.


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