South Yuba River Citizens League v. National Marine Fisheries Service

ORDER

Plaintiff environmental groups bring various claims arising primarily out of the structure and operation of two dams on the South Yuba River. The Sixth Amended Complaint brings claims under the Administrative Procedures Act (“APA”) and the Endangered Species Act’s (“ESA”) citizen suit provision, alleging that the various defendants violated provisions of the ESA.

Plaintiffs’ fourth claim for relief alleges that the Army Corps of Engineers violated the ESA’s prohibition on “take” of protected species in its operation and licensing of the two dams. The National Marine Fisheries Service issued an “incidental take statement” (“ITS”) for these operations, which serves to shield the Corps from liability for take provided that the Corps complies with the ITS.

Plaintiffs allege that the Corps is liable notwithstanding this ITS, because either the ITS itself is invalid, or because the Corps has failed to comply with the terms of the ITS. The federal defendants’ present motion argues that the latter of these allegations cannot support an ESA citizen suit. Accordingly, federal defendants move to dismiss this aspect of plaintiff’s fourth claim. Defendants’ motion is brought as a…