Daniel Joseph O'Hanlon, Hanspeter Walter, K. Eric Adair, Rebecca Dell Sheehan, Kronick, Moskovitz, Tiedemann & Girard, David A. Diepenbrock, Jon David Rubin, Jonathan R. Marz, Eileen M. Diepenbrock, Diepenbrock Harrison, Linus Serafeim Masouredis, Metropolitan Water District of Southern California, Sacramento, CA, Alexis Keane Galbraith, Jeanne M. Zolezzi, Karna E. Harrigfeld, Jennifer L. Spaletta, Herum Crabtree, Stockton, CA, Audrey M. Huang, Paul S. Weiland, Nossaman LLP, Irvine, CA, Christopher J. Carr, William M. Sloan, Edgar B. Washburn, Morrison and Foerster LLP, San Francisco, CA, Tim P. O'Laughlin, William C Paris, III, O'Laughlin & Paris, LLP, Chico, CA, Amelia Minaberrigarai, Bakersfield, CA, Gregory K. Wilkinson, Steven M. Anderson, Best Best & Krieger, LLP, Riverside, CA, for Plaintiffs.

Clifford Thomas Lee, Daniel S. Harris, Michael M. Edson, California Attorney General's Office, Department of Justice, San Francisco, CA, for Intervenor Plaintiff.

Bradley H. Oliphant, US Department of Justice, Env. & Natural Resources Division, Washington, DC, Charles Ray Shockey, United States Department of Justice, Sacramento, CA, for Defendant.

Erin Marie Tobin, Earthjustice, Michael Ramsey Sherwood, Earthjustice Legal Defense Fund Incorporated, Oakland, CA, Katherine Scott Poole, Natural Resources Defense Council, San Francisco, CA, Doug Andrew Obegi, Natural Resources Defense Council, San Francisco, CA, Bradley H. Oliphant, US Department of Justice, Env. & Natural Resources Division, Washington, DC, M. Reed Hopper, Brandon Murray Middleton, Pacific Legal Foundation, Sacramento, CA, for Intervenor Defendant.

Bridget Kennedy McNeil, United States Department of Justice, Environment & Natural Res. Div., Wildlife & Marine Resources, Denver, CO.

OLIVER W. WANGER, District Judge.

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"). [1]

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 , 98 S.Ct. 2396 , 57 L.Ed.2d 274 (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 , 114 S.Ct. 1673 , 128 L.Ed.2d 391 (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 , 56 S.Ct. 780 , 80 L.Ed. 1135 (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).

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:

Id. at ¶ 13.

The Kern/Coalition Complaint contains the following allegations regarding Kern:

The Kern/Coalition Complaint also contains the following allegations regarding the Coalition and its members:

Met's Complaint alleges:

Federal Defendants rely on Adams v. California Department of Health Services, 487 F.3d 684, 688 (2007), to support the unremarkable proposition that a district court generally has the discretion "to dismiss a duplicative later-filed action, to stay that action pending resolution of the previously filed action, to enjoin the parties from proceeding with it, or to consolidate both actions." In Adams , the plaintiff, who was a challenging a state agency's decision not to hire her, sought to amend the complaint, but not until well after the deadline for amendment. The district court denied plaintiff's motion to amend and entered a final judgment. Id. at 687 . "[I]n an attempt to avoid the consequences of her own delay and to circumvent the district court's denial of her untimely motion," the exact same plaintiff then filed a second lawsuit, raising similar claims, but naming some additional defendants. Id. at 688 .

The Ninth Circuit began with the general proposition that "[p]laintiffs generally have no right to maintain two separate actions involving the same subject matter at the same time in the same court and against the same defendant." Id. Then, borrowing from the test for claim preclusion, Adams articulated a test for determining whether a suit is duplicative:

Id. at 688-89 .

Under the first part of the duplicative action test, "[t]o ascertain whether successive causes of action are the same, [a court should] use the transaction test, developed in the context of claim preclusion." Id. at 689 .

Id. (internal citations and quotations omitted).

The two actions at issue in Adams shared a common transactional nucleus of facts. Likewise, it is undisputed that all six consolidated cases share a common transactional nucleus of facts, namely the issuance of the 2009 Salmon BiOp, and that the claims in all six cases substantially overlap. See Doc. 51 at 7-18.

Under the second part of the duplicative action test, a court must "examine whether... the parties or privies to the action[] are the same." Id. at 689 . Adams applied the concept of "virtual representation" to determine whether several new defendants added to the second action were "in privity" with the original defendant. Id. at 689 .

Id. at 691 . Applying the concept of "virtual representation," Adams found the new defendants were in privity with the old. In light of these findings, Adams concluded that the district court did not abuse its discretion by dismissing the second action with prejudice. Id. at 692 .

Id. at 692 (internal citations omitted).

The Supreme Court has since rejected "virtual representation" as a basis for finding privity in the preclusion context. Taylor v. Sturgell, 553 U.S. 880 , 128 S.Ct. 2161, 2178 , 171 L.Ed.2d 155 (2008). Instead, the Supreme Court articulated six categories of exceptions to the general rule forbidding nonparty preclusion. Id. at 2172. First, a "person who agrees to be bound by the determination of issues in an action between others is bound...." Id. Second, certain "pre-existing substantive legal relationships between the person to be bound and a party to the judgment" will bind certain non-parties. Id. (internal quotations omitted). Third, "in certain limited circumstances, a nonparty may be bound by a judgment [if] she was adequately represented by someone with the same interests who was a party to the suit." Id. (internal quotation omitted). Fourth, "a nonparty is bound by a judgment if she assumed control over the litigation in which the judgment was rendered." Id. at 2173 (internal quotation omitted). Fifth, "a party bound by a judgment may not avoid its preclusive force by relitigating through a proxy." Id. Sixth, "in certain circumstances, a special statutory scheme may expressly foreclose successive litigation by nonlitigants ... if the scheme is otherwise consistent with due process." Id. (alteration in original). [2]

All, save the third exception, are obviously inapplicable. The first exception is inapplicable because there is no suggestion that Kern, Met, or SWC have agreed to be bound by the others' actions.

The second exception requires a pre-existing, substantive legal relationship, such as that arising between preceding and succeeding owners of property, bailees and bailors, and assignees and assignors, none of which apply here. Taylor, 128 S.Ct. at 2172 .

The fourth exception applies when a nonparty assumed control of the prior litigation and then attempts to file its own case on the same grounds. Id. at 2173. In determining whether such control was asserted, a court considers whether the non-party: (1) required the previous lawsuit to be filed; (2) reviewed and approved the complaint; (3) paid attorneys' fees and costs; (4) directed the appeal; (5) appeared and submitted a brief as an amicus; (6) directed the filing of the notice of appeal; and (7) effectuated the abandonment of that appeal by a party in the proceeding. Montana v. United States, 440 U.S. 147, 154 , 99 S.Ct. 970 , 59 L.Ed.2d 210 (1979). Here, the Federal Defendants do not suggest this exception applies, as all cases were independently initiated.

The fifth exception does not apply because there has been no judgment in any of the consolidated actions, so it is not possible for any plaintiff to be relitigating through a proxy.

The sixth exception is inapplicable because there is no successive litigation or applicable "special statutory scheme" regarding successive litigation by non-parties.

The third exception concerns whether the non-party was adequately represented by a party with the same interests. Taylor, 128 S.Ct. at 2172 . A party's representation of another is "adequate" if, at a minimum: (1) the interests of the nonparty and her representative are aligned; and (2) either the party understood herself to be acting in a representative capacity or the original court took care to protect the interests of the nonparty. Id. at 2176.

Federal Defendants cite Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 322 F.3d 1064, 1082 (9th Cir.2003), for the proposition that an association filing suit on behalf of its members automatically triggers the third exception. Tahoe Sierra held:

Id. at 1082 (internal citations omitted).

Federal Defendants suggest that the record demonstrates only the possibility of conflict amongst the members of the SWC, not conflict between the organization and its members. See Declaration of Terry Erlewine, Doc. 103, ¶¶ 8-9 (SWC's members "do not always have common interests;" SWC's members' "interests do not necessarily align"). Federal Defendants also suggest that SWC can provide adequate representation on its members' behalf given that SWC is seeking the same declaratory and prospective relief sought by its members.

Federal Defendants ignore two important issues. First, SWC and its members, Kern and Met, specifically disclaim having any understanding that SWC would be acting in a complete representative capacity. Kern and Met serve different types of water users with potentially conflicting interests, as each water users seeks water it has contracted for, even at the expense of other water users. SWC is representing only the common interests of its diverse membership:

Doc. 99 at 16, 21.

Second, Federal Defendants fail to acknowledge the complex reality in which the two member plaintiffs operate. For example, Met obtains water from multiple non-CVP sources, including the Colorado River, local watersheds, and water re-use facilities, which it mixes with SWP water before delivery to domestic, industrial, and agricultural users. Because of the potentially higher legal and contractual priorities assigned to domestic over agricultural use, Met is likely to have different, and potentially conflicting priorities, as compared to the Kern/Coalition plaintiffs, which represent primarily agricultural users in the southern San Joaquin Valley. While SWC, a highly experienced litigant, may take the laboring oar with respect to interests that Met, Kern, and its 25 other members may share, SWC cannot act in a "representative" capacity to pursue specific relief that benefits some of its members at the expense of others. Met and Kern are entitled to pursue their unique and potentially differing interests separately, while relying on SWC to represent the common interests of all SWP users. Under the circumstances, Met and Kern are not in privity with SWC for all purposes of the duplicative action inquiry.

Even if, arguendo, the Adams/Taylor duplicative action test were satisfied here, the district court has exercised its discretion to consolidate, rather than dismiss, the challenged complaints. This approach, which is articulated in detail in the scheduling order and which has been followed in the parallel Delta Smelt Consolidated Cases, 1:09-cv-00407, adequately preserves the parties' unique interests, and conserves party and judicial resources. Federal Defendants have not demonstrated any prejudice will result from maintaining these cases as consolidated actions. Every effort is being made to eliminate duplication and promote party and judicial economy. It is preferable to do so simultaneously in consolidated cases rather than separately, in six cases.

The motion to dismiss the Kern/Coalition and Met complaints as duplicative is DENIED.

Alternatively, Federal Defendants contend that "if the direct participation of the KCWA Plaintiffs and MWD is necessary to protect their asserted claims and requested relief ..., then SWC lacks standing and must be dismissed." Doc. 80-2 at 10. An organization can establish standing to sue on behalf of its individual members if: (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. Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 342-43 , 97 S.Ct. 2434 , 53 L.Ed.2d 383 (1977); United Union of Roofers, Waterproofers, and Allied Trades No. 40 v. Insurance Corp. of Am., 919 F.2d 1398, 1400 (9th Cir.1990).

It is undisputed that both Kern and Met are individual member agencies of SWC. Federal Defendants maintain that, under Hunt's third prong, "in order for SWC to have standing to sue on their behalf, the participation in this lawsuit of the KCWA Plaintiffs or MWD cannot be necessary to the prosecution of SWC's claims or its requested relief." Doc. 80-2 at 10. Federal Defendants' argument continues:

Id. at 10-11.

Federal Defendants misapply the scope of Hunt's third prong. Hunt itself sheds little light on the application of this element. However, Hunt's three-part test relies heavily upon Warth v. Seldin, 422 U.S. 490 , 95 S.Ct. 2197 , 45 L.Ed.2d 343 (1975). In Warth , the Supreme Court rejected an association's argument that it had standing to bring damages claims on behalf of individual members "not common to the entire membership, nor shared by all in equal degree." Id. at 515 , 95 S.Ct. 2197 . To the contrary, Warth concluded that "whatever injury may have been suffered is peculiar to the individual member concerned, and both the fact and extent of injury would require individualized proof." Id. at 515-16 , 95 S.Ct. 2197 . "Thus, to obtain relief in damages, each member of [the association] who claims injury as a result of respondent' practices must be a party to the suit, and [the association] has no standing to claim damages on his behalf." Id. at 516 , 95 S.Ct. 2197 .

Here, while Kern and Met have the right to separately sue to protect their own, unique interests, their participation is not a legal prerequisite to SWC's maintenance of its challenge to the 2009 Salmon BiOp on behalf of the common interests of its members and its request for appropriate injunctive relief. As SWC undisputably satisfies the first two Hunt requirements(1) its members would otherwise have standing to sue in their own right, as each is injured by Defendants' actions, and (2) the interests SWC seeks to protect are germane to its organizational purpose, preserving contractual and related water rights and suppliesSWC has organizational standing to pursue these common-interest claims. It is not necessary to address SWC's alternative basis for standing in its own right.

The motion to dismiss for lack of standing is DENIED.

Denial of the motion to dismiss moots two of the related motions to strike, which concern only the merits of the motion to dismiss. Doc. 92, 97.

The third motion to strike, filed by the Coalition, concerns Federal Defendants' request in its reply that denial of their motion to dismiss should be without prejudice, so that Federal Defendants can pursue discovery into Coalition's membership. Doc. 114 at 6. The Coalition moves 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. Although advanced for the first time in a reply brief, Federal Defendants' request for a denial of its motion without prejudice pending discovery is not unexpected and will be considered. Because it constitutes new material, the Coalition's surreply will also be considered. The motion to strike is DENIED.

The merits of the argument and the surreply are easily resolved. As a matter of law, if the court determines "at any time" that it lacks subject matter jurisdiction, the court must dismiss an action. See Fed.R.Civ.P. 12(b)(1). It is perfectly permissible for a defendant to move to dismiss under this rule on multiple occasions, for example, if new evidence is discovered. See Arbaugh v. Y & H Corp., 546 U.S. 500, 506 , 126 S.Ct. 1235 , 163 L.Ed.2d 1097 (2006) ("The objection that a federal court lacks subject-matter jurisdiction ... may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment."). Accordingly, denial of a Rule 12(b)(1) motion is inherently without prejudice.

As for the Federal Defendants' right to obtain discovery from the Coalition, no such discovery motion is before the court at this time. Ordinarily, preliminary discovery directed at a parties' standing is permitted. The matter was not resolved at the hearing on these motions.

For the reasons set forth above:

(1) Federal Defendants' motion to dismiss the Kern/Coalition and Met complaints as duplicative is DENIED;

(2) Federal Defendants' motion to dismiss SWC's complaint for lack of standing is DENIED;

(3) Kern/Coalition and Met's motions to strike portions of the motion to dismiss are DENIED AS MOOT;

(4) The Coalition's motion to strike portions of Federal Defendants' reply brief is DENIED, but the Coalition's surreply will be considered.

SO ORDERED.

[1] The species addressed by this biological opinion are: (1) endangered Sacramento River winter-run Chinook salmon ( Oncorhynchus tshawytscha ) ("winter-run"); (2) threatened Central Valley spring-run Chinook salmon ( O.tshawytscha ) ("spring-run"); (3) threatened Central Valley ("CV") steelhead ( O.mykiss ); (4) threatened Central California Coast ("CCC") steelhead ( O.mykiss ); (5) threatened Southern Distinct Population Segment ("DPS") of North American green sturgeon ( Acipenser medirostris ) ("Southern DPS of green sturgeon"); and (6) endangered Southern Resident killer whales ( Orcinus orca ) ("Southern Residents") (collectively, the "Listed Species").

[2] Plaintiffs protest that Adams' duplicative action test, even with Taylor' s privity standard replacing the "virtual representation" doctrine, should not be applied here because, unlike in Adams, Taylor, and every other case cited by Federal Defendants, no claim or issue has reached final judgment in any of the Consolidated Salmon Cases. See also Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 322 F.3d 1064, 1082 (9th Cir. 2003) (individual members of a property owners association precluded from bringing subsequent action because the association had already litigated the same claims in an earlier suit); Bolden v. Pennsylvania State Police, 578 F.2d 912 (3d Cir.1978)(upholding denial of motion to intervene by Fraternal Order of Police ("FOP") and some of its individual members in a case to challenge the terms of a final consent decree in light of evidence that FOP voted to approve entry into consent decree); Yankton Sioux Tribe v. U.S. Department of Health & Human Services, 533 F.3d 634 (8th Cir.2008)(affirming dismissal of lawsuit brought by Tribe and individual member of Tribe to relitigate claims brought to judgment by Tribe in previous lawsuit).

Plaintiffs are correct that Adams is distinguishable. However, before judgment is entered in any possibly duplicative action, the trial court retains the discretion to dismiss, stay, or consolidate the duplicative actions. For example, in Walton v. Eaton Corp., 563 F.2d 66, 70 (3d Cir.1977), which Adams quoted for the general rule that "[p]laintiffs generally have no right to maintain two separate actions involving the same subject matter at the same time in the same court and against the same defendant," the Third Circuit approved of a district court's consolidation of two nearly identical lawsuits brought by the same plaintiff, on its own motion and before any judgments had been entered. Walton also noted that dismissal or stay of the later-filed action would have been permissible. Id. Here, the district court retains the same power to control its docket with respect to duplicative actions. However, the question remains whether the Taylor privity standard is met in connection with the challenged lawsuits.