United States District Court, N.D. California
CALIFORNIA RIVER WATCH, a 501(c)(3) nonprofit, public benefit corporation, Plaintiff,
COUNTY OF SONOMA, Defendant
For California River Watch, Plaintiff: Edward Eugene Yates, LEAD ATTORNEY, Law Office of Edward E. Yates, San Rafael, CA; Jack Silver, Jerry Bernhaut, LEAD ATTORNEYS, Law Office of Jack Silver, Santa Rosa, CA; Jennifer Lynn Loda, LEAD ATTORNEY, Oakland, CA United Sta.
For County of Sonoma, Defendant: Paul Pickering Spaulding, III, LEAD ATTORNEY, Ashley Evans Breakfield, Farella Braun Martel LLP, San Francisco, CA; Verne Rhoades Ball, Sonoma County Counsel, Santa Rosa, ca.
ORDER DISMISSING FIRST AMENDED COMPLAINT
WILLIAM ALSUP, UNITED STATES DISTRICT JUDGE.
In this action brought under Section 9 of the Endangered Species Act, defendant
moves to dismiss and/or strike allegations in the first amended complaint. For the reasons stated herein, the first amended complaint is Dismissed without prejudice. The County has voluntarily agreed to provided limited relief.
This action involves alleged violations of Section 9 of the Endangered Species Act (" ESA" ), 16 U.S.C. 1531, et seq., with respect to an alleged unauthorized " take" of the Sonoma County distinct population segment of the California tiger salamander (" Sonoma California tiger salamander" ).
In July 2002, the Fish and Wildlife Service listed the Sonoma California tiger salamander as endangered on a temporary emergency basis. See 68 Fed. Reg. 13498. In March 2003, the Fish and Wildlife Service upgraded the Sonoma California tiger salamander's listing to full endangered status. In August 2005, the Sonoma California tiger salamander was reinstated as a distinct population and re-designated as endangered. Center for Biological Diversity v. United States Fish & Wildlife Serv., No. 3:04-cv-04324-WHA, 2005 WL 2000928 at *17 (N.D. Cal. Aug. 19, 2005).
In December 2005, the County and City of Santa Rosa developed a Santa Rosa Plain Conservation Strategy in order to manage areas within the Sonoma California tiger salamander's critical habitat (First Amd. Compl. ¶ 14).
In May 2006, the United States Fish and Wildlife Services and the California Fish and Wildlife Services issued Interim Mitigation Guidelines (Ball Decl. ¶ 4, Exh C). The Interim Mitigation Guidelines stated (emphasis added):
The Interim mitigation guidelines shall apply to all projects that may result in " take" of the [California tiger salamanders] as defined in the federal ESA, including linear projects. Where appropriate, the [U.S. Army Corps of Engineers, U.S. Environmental Protection Agency, and North Coast Regional Water Quality Control Board] will also apply these guidelines, and local jurisdictions may apply these mitigation guidelines in connection with any evaluation performed under the California Environmental Quality Act. Unless otherwise shown on the map attached to the Conservation Strategy as Figure 3, mitigation for [California tiger salamanders] will be required for all projects within 1.3 miles of known breeding sites as long as the project site supports potential [California tiger salamander] habitat.
To be clear, while the instant action is focused on the Sonoma California tiger salamanders, the Interim Mitigation Guidelines appear to apply to all California tiger salamanders. According to the first amended complaint, the County blocked the conservation plan from implementation and took little or no action to ensure the Interim Mitigation Guidelines were followed (First Amd. Compl. ¶ ¶ 14, 15).
In September 2011, the Fish and Wildlife Service designated 47,383 acres of land within Sonoma County as " critical habitat" for the Sonoma California tiger salamander. See 76 Fed. Reg. 54346.
In October 2013, River Watch served the County with " Notice of Violations and Intent to File Suit." See 16 U.S.C. 1540(g)(2)(A).
In January 2014, plaintiff commenced the instant action. River Watch then served the County with a " Supplemental Notice of Violations and Intent to File Suit" in March 2014 (First Amd. Compl. Exhs. A, B).
In May 2014, plaintiff filed a first amended complaint (Dkt. No. 26). The sole claim for relief alleged was that the
County is violating Section 9 of the ESA by (First Amd. Compl. ¶ 1) (emphasis added):
aiding and facilitating the taking of [Sonoma California tiger salamander] by way of issuing permits authorizing activities which have caused and/or accelerated the decline of [Sonoma California tiger salamander], and/or delayed and/or prevented the recovery of [Sonoma California tiger salamander], likely jeopardizing its continued existence and leading to extinction.
Again, this action concerns members of the Sonoma County distinct population segment of the California tiger salamander ( ibid. ) (emphasis added). The first amended complaint seeks, inter alia, declaratory judgment to declare the County in violation of Section 9 of the ESA by authorizing a " take" and the following injunction:
an order enjoining the COUNTY from issuing permits for development of land within 1.3 miles of known breeding sites, known occurrence and within habitat corridors of the designated critical habitat for [Sonoma California tiger salamander], unless the permittee is granted an incidental " take" permit under ESA § 10 and has satisfied all the requirements for surveys and mitigation as set forth in the ESA regulations and the Interim Mitigation Guidelines for the Santa Rosa Plain Conservation Strategy.
( id. at ¶ ¶ 28-29). On June 26, 2014, the hearing on the County's motion to dismiss was held. On July 1, the County filed a notice of supplemental authority, appending a copy of Aransas Project v. Shaw, No. 13-40317, 756 F.3d 801, (5th Cir. June 30, 2014) (Dkt. No. 38). On July 9, the County voluntarily agreed to provide limited relief (Dkt. No. 41). Plaintiff then filed a response (Dkt. No. 42). This order follows full briefing and oral argument.
1. Broad Swath of Permits.
This civil action does not rely on Section 7, which requires federal agencies to confer with the Secretary on any agency action which is likely to jeopardize endangered species or result in an adverse modification of a " critical habitat" for an endangered species. 16 U.S.C. 1536. This is because Section 7 applies to ...