Security National Guaranty, Inc. v. U.S. Fish And Wildlife Service

MOTION to Dismiss for Lack of Jurisdiction

N.D. Cal.November 25, 2016

National Security Guaranty, Inc. v. FWS, Case No. 5:16-cv-05423-HRL DEFS.’ MOT. TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JOHN C. CRUDEN, Assistant Attorney General SETH M. BARSKY, Chief MEREDITH L. FLAX, Assistant Chief TRAVIS ANNATOYN, Trial Attorney U.S. Department of Justice Environment and Natural Resources Division Wildlife and Marine Resources Section Ben Franklin Station, P.O. Box 7611 Washington, D.C. 20044-7611 (202) 514-5243 (tel) (202) 305-0275 (fax) Attorneys for Federal Defendants IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SECURITY NATIONAL GUARANTY, INC. Plaintiff, v. U.S. FISH AND WILDLIFE SERVICE, and DOES 1-10, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 5:16-cv-05423-HRL MOTION TO DISMISS Date: January 10, 2017 Time: 10:00 a.m. Place: Courtroom 2, Fifth Floor Judge: Hon. Howard R. Lloyd Case 5:16-cv-05423-HRL Document 14 Filed 11/25/16 Page 1 of 25 National Security Guaranty, Inc. v. FWS, Case No. 5:16-cv-05423-HRL i DEFS.’ MOT. TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS PAGE INTRODUCTION .......................................................................................................................... 1 LEGAL BACKGROUND .............................................................................................................. 3 FACTUAL BACKGROUND ......................................................................................................... 4 I. Endangered Species Near Plaintiff’s Development ............................................................ 4 II. The Monterey Bay Shores Development And Prior Proceedings Before State Agencies And Courts ..................................................................................... 5 STANDARD OF REVIEW ............................................................................................................ 8 ARGUMENT .................................................................................................................................. 9 I. Because FWS’ Factual Predictions Concerning Take Of The Western Snowy Plover Have No Legal Effect, Plaintiff’s Challenge To Those Predictions Falls Outside The APA’s Waiver Of Sovereign Immunity For Review Of “Final Agency Action” .............................................................................. 9 II. The APA’s Waiver Of Sovereign Immunity Does Not Apply Where, As Here, Plaintiff Has Adequate Recourse To State Tribunals ........................................ 13 III. Because Plaintiff’s Alleged Injury Flows From The Coastal Commission And Not From FWS, Plaintiff’s Lawsuit Is Not A “Case” Or “Controversy” Suitable For Resolution By A Federal Court ...................................................................... 1 CONCLUSION ............................................................................................................................. 17 Case 5:16-cv-05423-HRL Document 14 Filed 11/25/16 Page 2 of 25 National Security Guaranty, Inc. v. FWS, Case No. 5:16-cv-05423-HRL ii DEFS.’ MOT. TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES CASES PAGE Action for Rational Transit v. W. Side Highway Project by Bridwell, 699 F.2d 614 (2d Cir. 1983)...................................................................................................... 14 Baker v. United States, 722 F.2d 517 (9th Cir. 1983) .................................................................................................... 15 Bates v. UPS, 511 F.3d 974 (9th Cir. 2007) .................................................................................................... 15 Cal. Am. Water v. City of Seaside, 2012 WL 3329619 (Cal. App. 6th Dist. 2012) ........................................................................... 5 Defs. of Wildlife v. Bernal, 204 F.3d 920 (9th Cir. 2000) ...................................................................................................... 4 Guerrero v. Clinton, 157 F.3d 1190 (9th Cir. 1998) .................................................................................................. 16 Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) .................................................................................................................. 15 Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990) .................................................................................................................... 9 Marbled Murrelet v. Babbitt, 83 F.3d 1068 (9th Cir. 1996) .............................................................................................. 12, 13 Nat’l Ass’n of Home Builders v. Norton, 415 F.3d 8 (D.C. Cir. 2005) ................................................................................................ 11, 12 Navajo Nation v. U.S. Dep’t of Interior, 819 F.3d 1084 (9th Cir. 2016) .................................................................................................... 9 Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004) ...................................................................................................................... 9 Ramsey v. Kantor, 96 F.3d 434 (9th Cir. 1996) ...................................................................................................... 11 Safe Air for Everyone v. Meyer, 373 F.3d 1035 (9th Cir. 2004) ................................................................................................ 8, 9 Case 5:16-cv-05423-HRL Document 14 Filed 11/25/16 Page 3 of 25 National Security Guaranty, Inc. v. FWS, Case No. 5:16-cv-05423-HRL iii DEFS.’ MOT. TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Schmier v. U.S. Court of Appeals for Ninth Circuit, 279 F.3d 817 (9th Cir. 2002) .................................................................................................... 15 Sierra Club v. U.S. Army Corps of Eng’rs, 701 F.2d 1011 (2d Cir. 1983) ................................................................................................... 14 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) .............................................................................................................. 16, 17 Townley v. Miller, 722 F.3d 1128 (9th Cir. 2013) .................................................................................................. 16 U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807 (2016) .............................................................................................................. 10 Warth v. Seldin, 422 U.S. 490 (1975) .................................................................................................................. 15 Washington Envtl. Council v. Bellon, 732 F.3d 1131 (9th Cir. 2013) .................................................................................................. 16 Whitmore v. Arkansas, 495 U.S. 149 (1990) .................................................................................................................. 15 Wolfe v. Strankman, 392 F.3d 358 (9th Cir. 2004) ...................................................................................................... 9 Sec. Nat’l Guar., Inc. v. Cal.Coastal Comm’n, 159 Cal. App. 4th 402 (2008) ..................................................................................................... 6 STATUTES 5 U.S.C. § 551(13) .................................................................................................................... 9, 10 5 U.S.C. § 704 ................................................................................................................... 1, 2, 9, 13 16 U.S.C. § 1531(b) ........................................................................................................................ 3 16 U.S.C. § 1532(19) ...................................................................................................................... 4 16 U.S.C. §1539(a)(1) ..................................................................................................................... 4 16 U.S.C. § 1539(a)(1)(B) .......................................................................................................... 4, 7 16 U.S.C. § 1539(a)(2)(A) .............................................................................................................. 4 Case 5:16-cv-05423-HRL Document 14 Filed 11/25/16 Page 4 of 25 National Security Guaranty, Inc. v. FWS, Case No. 5:16-cv-05423-HRL iv DEFS.’ MOT. TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 U.S.C. § 1539(a)(2)(B) .............................................................................................................. 4 FEDERAL REGULATIONS 50 C.F.R. § 17.3 .............................................................................................................................. 4 50 C.F.R. § 17.31 ............................................................................................................................ 3 50 C.F.R. § 17.32(b)(1) ................................................................................................................... 4 58 Fed. Reg. 12,864 (Mar. 5, 1993) ................................................................................................ 5 59 Fed. Reg. 5499 (Feb. 4, 1994) ................................................................................................... 5 67 Fed. Reg. 37498- (May 29, 2002) .............................................................................................. 5 76 Fed. Reg. 16,046 (Mar. 22, 2011) .............................................................................................. 5 77 Fed. Reg. 36,728 (June 19, 2012) .............................................................................................. 5 Case 5:16-cv-05423-HRL Document 14 Filed 11/25/16 Page 5 of 25 National Security Guaranty, Inc. v. FWS, Case No. 5:16-cv-05423-HRL v DEFS.’ MOT. TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF EXHIBITS Exhibit 1: Plaintiff’s Coastal Development Permit Exhibit 2: April 7, 2016 Letter from FWS to California Coastal Commission Exhibit 3: July 29, 2016 Letter from California Coastal Commission to Plaintiff Exhibit 4: November 14, 2016 Letter from FWS to Plaintiff and California Coastal Commission Case 5:16-cv-05423-HRL Document 14 Filed 11/25/16 Page 6 of 25 National Security Guaranty, Inc. v. FWS, Case No. 5:16-cv-05423-HRL vi DEFS.’ MOT. TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:16-cv-05423-HRL Document 14 Filed 11/25/16 Page 7 of 25 National Security Guaranty, Inc. v. FWS, Case No. 5:16-cv-05423-HRL 1 DEFS.’ MOT. TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: Notice is hereby given, under Local Civil Rule 7, that on December 27, 2016, or as soon as this matter may be heard, in the Courtroom of the Honorable Howard R. Lloyd (Courtroom 2), Defendants U.S. Fish and Wildlife Service, et al. (collectively “Defendants” or “Federal Defendants”), will move this Court to dismiss Plaintiff’s Complaint for failure for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). This Court should dismiss Plaintiff’s Complaint because Plaintiff has failed to identify or to challenge a “final agency action for which there is no other adequate remedy in a court . . . ,” as required by the Administrative Procedure Act. 5 U.S.C. § 704. 1 Moreover, Plaintiff lacks standing to pursue its claim for relief because it has failed to adequately allege that Defendants have caused Plaintiff’s alleged injury or that this Court can redress any such injury vis-à-vis Federal Defendants. INTRODUCTION On July 29, 2016, the California Coastal Commission, acting wholly pursuant to its authority under state law, denied Plaintiff the regulatory approval necessary to begin construction of a 1.34 million square foot beachside hotel-condominium complex (“the Development”). In particular, the Coastal Commission determined that Plaintiff had not completed mandatory “traffic mitigation measures;” that Plaintiff had not obtained permits which the Commission deemed “legally required” by the federal Endangered Species Act (“ESA”); and that Plaintiff had not adequately protected habitat for vulnerable species near the Development’s footprint. Ex. 2 at 4-5. According to Plaintiff’s Complaint, the Commission’s determination is merely the latest in what Plaintiff describes as a nearly-quarter-century-old 1 Defendants reserve all rights to seek dismissal of Plaintiff’s Complaint under Federal Rule 12(b)(6) should the Court determine that Plaintiff’s failure to adequately invoke the APA’s waiver of sovereign immunity is not jurisdictional in nature. Case 5:16-cv-05423-HRL Document 14 Filed 11/25/16 Page 8 of 25 National Security Guaranty, Inc. v. FWS, Case No. 5:16-cv-05423-HRL 2 DEFS.’ MOT. TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “saga,” whereby the Commission and Plaintiff have constantly quarreled – often in California state court – over the Development’s fate. See Compl. at 5-11. This saga has now arrived in federal court, notwithstanding the total lack of federal discretion over California state permitting for traffic mitigation, wildlife conservation, or other matters attendant to coastal development. The gravamen of Plaintiff’s Complaint is that the United States Fish and Wildlife Service (“FWS”) “required” Plaintiff to preemptively obtain an ESA permit when the agency concluded that the Development will likely harm the western snowy plover, a threatened shorebird. But as already noted – and as Plaintiff ultimately concedes – it is the California Coastal Commission, not FWS, which possessed and exercised ultimate authority to determine which federal permits and conservation measures were “required” under California permitting regimes. Compl. ¶38. Indeed, FWS has explicitly disclaimed any authority to compel applications or awards of ESA permits before a regulated party harms listed species, including in instances where parallel state permitting is ongoing. Ex. 4. Plaintiff has brought its lawsuit under the federal Administrative Procedure Act (“APA”), but California’s total control its state coastal permitting regime precludes Plaintiff from invoking the APA’s waiver of sovereign immunity against federal agencies. The APA requires that Plaintiff seek review of “final agency action for which there is no other adequate remedy in a court,” a test which Plaintiff fails on two counts. 5 U.S.C. § 704. First, the agency “action” challenged by Plaintiff – a collection of letters between FWS and the Coastal Commission – is not “final” within the meaning of Supreme Court and Circuit precedent, since “finality” demands that agency action have legal consequences. At bottom, FWS’ letters reflect only a technical conclusion that the Development is likely to harm plovers in-fact and produce absolutely no legal Case 5:16-cv-05423-HRL Document 14 Filed 11/25/16 Page 9 of 25 National Security Guaranty, Inc. v. FWS, Case No. 5:16-cv-05423-HRL 3 DEFS.’ MOT. TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 consequences. Second, the APA is unavailable to Plaintiff because Plaintiff retains an “adequate remedy in a court:” Plaintiff is free to challenge the determinations of a California state agency in California state Courts, just as Plaintiff has done several times before with respect to the Development. Id. Plaintiff also lacks Article III standing to pursue its lawsuit, since there is no justiciable “case” or “controversy” between Plaintiff and FWS. In particular, Plaintiff’s inability to begin construction on the Development is traceable to the Coastal Commission, not to FWS, just as this Court cannot redress Plaintiff’s dispute with the Commission by issuing declaratory relief as against a federal agency. Regardless of how one slices the shortcomings in Plaintiff’s Complaint, therefore, this lawsuit reflects a fundamental mismatch between Plaintiff’s ends and its chosen means: No law permits Plaintiff to obtain a state permit by suing a federal agency in a federal tribunal, and this Court should accordingly dismiss Plaintiff’s Complaint for want of jurisdiction. LEGAL BACKGROUND The ESA was enacted “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved . . . .” 16 U.S.C. § 1531(b). ESA Section 4 provides for the listing of species as “threatened” or “endangered” and for the designation of “critical habitat” for such species id. § 1533, while ESA Section 9 prohibits the “taking” of listed fish and wildlife. Id. § 1538(a) (prohibiting take of “endangered” species); 50 C.F.R. § 17.31 (generally extending prohibition to “threatened” species). Under the ESA, “take” means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to Case 5:16-cv-05423-HRL Document 14 Filed 11/25/16 Page 10 of 25 National Security Guaranty, Inc. v. FWS, Case No. 5:16-cv-05423-HRL 4 DEFS.’ MOT. TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 engage in any such conduct.” 16 U.S.C. § 1532(19). 2 Listed plains enjoy protections similar but not identical to those for listed fish and wildlife. Id. § 1538(a)(2), FWS administers the ESA on behalf of the Secretary of the Interior and, pursuant to ESA Section 10, may issue permits for take that “is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.” 16 U.S.C. § 1539(a)(1)(B); 50 C.F.R. § 17.32(b)(1) . Applicants for such a permit must submit a “Habitat Conservation Plan” describing the impact of take and efforts to minimize this impact, 16 U.S.C. § 1539(a)(2)(A), and FWS may only issue a so-called “incidental take permit if,” after opportunity for public comment, the agency makes a number of findings prescribed by 16 U.S.C. § 1539(a)(2)(B). Once issued, an incidental take permit shields the permittee from liability under ESA Section 9, 16 U.S.C. §1539(a)(1), but FWS has no authority to compel a permit or permit application antecedent to the act of taking itself. Defs. of Wildlife v. Bernal, 204 F.3d 920, 927 (9th Cir. 2000). “Thus a party may proceed without a permit, but it risks civil and criminal penalties if a ‘take’ occurs.” Id. FACTUAL BACKGROUND I. Endangered Species Near Plaintiff’s Development Plaintiff’s Development stands to destroy or degrade habitat for three species listed under the Endangered Species Act: The western snowy plover, Smith’s blue butterfly, and the Monterey spineflower. The western snowy plover is a small shorebird, about six inches long, which breeds above the high tide line on coastal beaches, sand spits, dune-backed beaches, sparsely-vegetated dunes, beaches at creek and river mouths, and salt pans at lagoons and estuaries. While plovers were once found throughout the western seaboard, a lack of nesting habitat – caused in large part by coastal development – has sharply reduced the plover’s numbers 2 “Harm” further includes “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” 50 C.F.R. § 17.3. Case 5:16-cv-05423-HRL Document 14 Filed 11/25/16 Page 11 of 25 National Security Guaranty, Inc. v. FWS, Case No. 5:16-cv-05423-HRL 5 DEFS.’ MOT. TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and range. See generally 76 Fed. Reg. 16,046 (Mar. 22, 2011) (proposed rule designating critical habitat for the species). The plover was a listed as threatened species in 1993, 58 Fed. Reg. 12,864 (Ma. 5, 1993), and FWS designated critical habitat for the species in 2012, 77 Fed. Reg. 36,728 (June 19, 2012). The Smith’s blue butterfly was listed as “endangered” in 1976. The butterflies are completely dependent on buckwheat plants, which shelter butterfly eggs and pupa and provide the species with its food source (the butterfly’s flight season, which lasts only from mid-June to early September, coincides with the buckwheat plants’ peak flowering). While it is likely that the Smith’s blue butterfly once existed across a large strip of Pacific coastline, human development, wildfire suppression, and invasive species have reduced the buckwheat plants on which the species depends, with corresponding fragmentation of butterfly populations. FWS listed the Monterey spineflower as “threatened” in 1994. See 59 Fed. Reg. 5499 (Feb. 4, 1994). The spineflower is a short-lived annual species, germinating during the winter months and flowering from April to June exclusively in sandy soils generally free of other vegetation. Like the Smith’s blue butterfly, suitable habitat for the Monterey spineflower has disappeared as beachside development has increased, and the species is now found in relatively isolated pockets along the California coast. See generally 67 Fed. Reg. 37498- (May 29, 2002). II. The Monterey Bay Shores Development And Prior Proceedings Before State Agencies And Courts Plaintiff is a corporation seeking to construct the Development on beachfront property in Sand City, California. As recounted in Plaintiff’s Complaint, the proposed Development is frequently the subject of disputes before California administrative bodies and California state courts, with particular emphasis on the Development’s environmental impact. Cal. Am. Water v. Case 5:16-cv-05423-HRL Document 14 Filed 11/25/16 Page 12 of 25 National Security Guaranty, Inc. v. FWS, Case No. 5:16-cv-05423-HRL 6 DEFS.’ MOT. TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 City of Seaside, No. H037286, 2012 WL 3329619, at *2 (Cal. App. 6th Dist. 2012); Sec. Nat’l Guar. v. Cal.Coastal Comm’n, 159 Cal. App. 4th 402 (2008). The California Coastal Commission is a state agency with certain state permitting authority over the Development. California state statutes and regulations governing the Commission do not purport to delegate any permitting authority to the federal government, but state regulations do require that applications for Coastal Development Permits be subject to public hearing. Cal. Code Regs. tit. 14, § 13062. In connection with Plaintiff’s application for a Coastal Development Permit, the Commission received a letter from FWS on or about April 7, 2014, detailing the federal agency’s concerns regarding the Development’s effect on the western snowy plover, the Smith’s blue butterfly, and the Monterey spineflower. The Coastal Commission subsequently issued a Coastal Development Permit to Plaintiff, but conditioned the Development on several “Prior To Construction” requirements. Among these requirements is “Special Condition 15,” which reads, in relevant part: Permittee also shall submit written evidence, if legally required, that all permits and/or authorizations for the approved project have been granted by the California Department of Fish and Wildlife (if required by the California Endangered Species Act) and the U.S. Fish and Wildlife Service (if required by the Federal Endangered Species Act). Compl. ¶ 33. Special Condition 15 also imposes certain requirements in response to Plaintiff’s preparation of a “Habitat Protection Plan” for the snowy plover and various other species. In particular, Special Condition 15 provides that: Prior to construction, the Habitat Protection Plan . . . shall be modified and submitted for Executive Director review and approval to incorporate standards in the [Plan] that address the eight concerns for western snowy plover, and each of the concerns for Smith’s blue butterfly and Monterey spineflower, in the [FWS] April 7, 2014 letter. Case 5:16-cv-05423-HRL Document 14 Filed 11/25/16 Page 13 of 25 National Security Guaranty, Inc. v. FWS, Case No. 5:16-cv-05423-HRL 7 DEFS.’ MOT. TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Id. The Permit also notes that “[a]ny questions of intent or interpretation of any condition [in the Permit] will be resolved by the Executive Director of the Commission,” not by FWS. Ex. 1 at 2. On April 1, 2016, FWS reviewed an updated version of the Habitat Protection Plan and expressed concern that the Plan failed to account for plover nesting on the Development site in 2012 & 2013, failed to provide for plover habitat undisturbed by humans, failed to protect inland plover nesting sites, and failed to implement seasonal protections designed to safeguard plover chicks, among other shortcomings related to the western snowy plover. See Ex. 2. FWS further concluded that Plaintiff’s updated Habitat Protection Plan protects neither the Smith’s blue butterfly nor the Monterey spineflower from habitat destruction. Id. at 7-9. Upon review of this letter, the Coastal Comission concurred with FWS’ conclusion that the Development was likely to take snowy plovers. Ex. 3 at 4-5. In its capacity as sole administrator of Plaintiff’s Coastal Development Permit, the Coastal Commission then interpreted FWS’ letter, the ESA, and Special Condition 15 to mean that Plaintiff had not satisfied Special Condition 15 for two reasons: According to the Commission, the Habitat Protection Plan (1) necessitates receipt of an incidental take permit under the ESA; and (2) does not address the concerns set forth in FWS’ letter of April 7, 2014. FWS did not co-sign this letter or otherwise purport to speak for the Coastal Commission when applying Special Condition 15 to the Development. Plaintiff’s lawsuit followed. Rather than allege that the Coastal Commission had improperly applied the ESA or Special Condition 15, Plaintiff’s lawsuit contends that FWS “violated federal law in its determination that the [ESA] requires [Plaintiff] to apply to [FWS] for an incidental take permit pursuant to 16 U.S.C. § 1539(a)(1)(B) with regard to the approved Case 5:16-cv-05423-HRL Document 14 Filed 11/25/16 Page 14 of 25 National Security Guaranty, Inc. v. FWS, Case No. 5:16-cv-05423-HRL 8 DEFS.’ MOT. TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [D]evelopment,” Compl. ¶1, and requests that the Court declare both that “the [ESA] does not legally require [Plaintiff] to apply for an [incidental take permit] in order to construct the Project,” and that FWS’ “determination that [Plaintiff] is legally required to apply for a[] [permit] is contrary to applicable law . . . .” Id. at 15. FWS subsequently wrote to Plaintiff and to the Coastal Commission (via letter dated November 14, 2016) reiterating its conclusion that the Development was likely to result in take and “recommend[ing] that [Plaintiff] apply for and obtain an Incidental Take Permit” to avoid potential liability. Ex. 4. (emphasis added). The letter concluded by noting that FWS had no power to extract a permit application from Plaintiff or to determine the meaning of Special Condition 15. As FWS indicated: [W]e recognize that the decision to apply for and obtain a[] “[permit] ultimately rests with [Plaintiff], and not with FWS. Insofar as any language in FWS’ previous correspondence might be read to suggest that the agency can compel private parties to obtain a[] [permit] before the potential take of listed species, or to definitively interpret the meaning of permits issued under and governed by state law, this letter acknowledges that FWS has no such authority Id. STANDARD OF REVIEW A motion to dismiss for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1) may advance “facial attacks” or “factual attacks.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Defendants’ challenges to Plaintiff’s invocation of the APA’s waiver of sovereign immunity are factual attacks, in which the Court “may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment.” Safe Air for Everyone, 373 F.3d at 1039 (citation omitted). As such, “the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction,” and “[t]he court need not presume the truthfulness of the plaintiff’s allegations.” Id. (citations omitted). Defendants’ challenges to Plaintiff’s Case 5:16-cv-05423-HRL Document 14 Filed 11/25/16 Page 15 of 25 National Security Guaranty, Inc. v. FWS, Case No. 5:16-cv-05423-HRL 9 DEFS.’ MOT. TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 standing are facial attacks, in which “the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.” Id. “Whether subject matter jurisdiction exists therefore does not depend on resolution of a factual dispute, but . . . on the allegations in [the] complaint[,]” which the Court must accept as true. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). ARGUMENT I. Because FWS’ Factual Predictions Concerning Take Of The Western Snowy Plover Have No Legal Effect, Plaintiff’s Challenge To Those Predictions Falls Outside The APA’s Waiver Of Sovereign Immunity For Review Of “Final Agency Action” The Administrative Procedure Act provides for judicial review of “final agency action for which there is no other adequate remedy in a court . . . .” 5 U.S.C. § 704. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882 (1990) (“[T]he person claiming a right to sue must identify some ‘agency action’ that affects him in the specified fashion; it is judicial review ‘thereof’ to which he is entitled.”); Navajo Nation v. U.S. Dep’t of Interior, 819 F.3d 1084, 1090 (9th Cir. 2016). But not every agency activity is an “agency action” under the APA: Instead, “agency action” is “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13). “All of those categories involve circumscribed, discrete agency actions, as their definitions make clear.” Norton v. S. Utah Wilderness Alliance (“SUWA”), 542 U.S. 55, 62 (2004) (emphasis added). Additionally, otherwise reviewable agency action must be “final,” a requirement which depends on two showings. 5 U.S.C. § 704. “First, the action must mark the consummation of the agency’s decisionmaking process, it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’” Bennett, 520 U.S. at 177-78 (citations omitted). Case 5:16-cv-05423-HRL Document 14 Filed 11/25/16 Page 16 of 25 National Security Guaranty, Inc. v. FWS, Case No. 5:16-cv-05423-HRL 10 DEFS.’ MOT. TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 See also U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1813 (2016). As we demonstrate below, Plaintiff’s Complaint fails to identify any “agency action” capable of challenge under the APA, much less “final agency action.” Plaintiff contends that two letters from FWS to the Coastal Commission constitute “final agency action” because one or both letters “require[] . . . [Plaintiff] to apply to the FWS for [an] [incidental take permit].” Compl. ¶40. As an initial matter, Plaintiff has not specified whether the letters constitute “final agency action” independently or in concert – much less indicated whether the letters are a “rule, order, license, sanction, [or] relief” under 5 U.S.C. § 551(13) – and has therefore failed to identify the necessary “discrete” and “circumscribed” starting point for the Court’s review. SUWA, 542 U.S. at 62. But more to the point, the letters determine neither rights nor obligations, and do not give rise to any legal consequences. Accordingly, Plaintiff has not identified a “final” agency action reviewable under the APA. Bennett, 520 U.S. at 177–78. To begin, the letters do not require that Plaintiff obtain an incidental take permit prior to the Development’s construction or as a means to comply with Special Condition 15. At bottom, the letters determine only that Plaintiff’s Development, as proposed, is likely to take the western snowy plover and degrade habitat for the Smith’s blue butterfly and the Monterey spineflower. These factual conclusions, by themselves, have no legal effect of any sort: The parties agree that FWS has no authority to preemptively compel an application for an incidental take permit, much less to condition private activity on a permit’s receipt. Defs. of Wildlife, 204 F.3d at 927. Nor does FWS have any authority to determine the meaning of Special Condition 15 or the rules governing the California Coastal Commission, all of which are creatures of state law subject to interpretation by California state courts. Were there any doubt on this score, FWS’ letter of Case 5:16-cv-05423-HRL Document 14 Filed 11/25/16 Page 17 of 25 National Security Guaranty, Inc. v. FWS, Case No. 5:16-cv-05423-HRL 11 DEFS.’ MOT. TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 November 14, 2016 explicitly disclaims any authority to compel an incidental take permit or application prior to construction, or to exercise the authority of state administrative bodies. See Ex. 4. Underscoring that FWS’ letters are a legal nullity, Plaintiff’s Complaint does not actually allege that FWS’ letters purport to exercise state permitting authority or to require incidental take permits as a prerequisite to construction. Compl. ¶42. The careful wording in Plaintiff’s Complaint tracks the primary thrust of FWS’ letters, which is that permits are “required,” if at all, only to avoid potential liability after the take of listed species, not to satisfy California state permitting regimes. Thus, for example, FWS’ letter of April 1, 2016 explains that “the only available approach for take that would result from the [Development] to be permitted under the [ESA] (and thereby lawful) is for [Plaintiff] to prepare a [Habitat Conservation Plan] in support of an application for an incidental take permit.” See Ex. 2 at 8 (emphasis added). In stating as much, FWS’ letters merely recite well-established governing law. See Ramsey v. Kantor, 96 F.3d 434, 439 n.6 (9th Cir. 1996) (“If the private party complies with the requirements of the incidental take permit, any taking of a listed species will not violate ESA Section 9.”). 3 This type of informal, non-binding advice does not qualify as “final agency action” under the APA, since the advice cannot accrete legal authority or effect where none exists. See Nat’l Ass’n of Home Builders v. Norton, 415 F.3d 8, 16-17 (D.C. Cir. 2005). In Norton, for example, FWS issued a non-binding survey protocol for a federally protected butterfly and notified at least one California city that a proposed golf course “was within a potential habitat area” for the species. Id. at 16. Rejecting plaintiff’s argument that the protocol and correspondence 3 To be sure, FWS’ letter of April 1, 2016, does include an isolated conclusion that “special condition 15 has not been satisfied.” Ex. 2 at 9. FWS has since clarified that the agency is in no position to make such determinations, see Ex. 4, and, in any event, the vast bulk of FWS’ letter addresses itself to factual assessments of likely take and restatements of the ESA, not to any requirements of state law. Case 5:16-cv-05423-HRL Document 14 Filed 11/25/16 Page 18 of 25 National Security Guaranty, Inc. v. FWS, Case No. 5:16-cv-05423-HRL 12 DEFS.’ MOT. TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “coerced” local governments into halting development, the D.C. Circuit explained that “FWS does not have . . . authority under the ESA to ‘declare [state] permits invalid,’” and noted that informal, advisory correspondence between the agency and state government is “within the authority of the FWS under section nine of the ESA.” Id. (citing Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1074 (9th Cir. 1996)). Marbled Murrelet is similarly instructive. There, FWS consulted with timber salvage companies on how to best avoid take of several species, and environmental plaintiffs subsequently complained that the agency “had gone beyond providing advice . . . , had assumed authority and control over the intended salvage operation, and as a result had engaged in federal ‘agency action’” triggering certain ESA requirements. 83 F.3d at 1070. Disagreeing, the Ninth Circuit explained that FWS’ correspondence “merely provided advice” on potential liability for take, an agency “power” that “emanates” from ESA Section 9. Id. at 1074. Were this advice held to constitute agency action, the court explained, “desirable communication between private entities and federal agencies on how to comply with the ESA would be stifled, and protection of threatened and endangered species would suffer.” Id. at 1074-75. As in Norton and Marbled Murrelet, FWS’ advisory correspondence is not coercive or otherwise determinative of Plaintiff’s legal obligations under the ESA. The letters identified by Plaintiff merely provide the agency’s prediction concerning the Development’s likely take of the western snowy plover, but do not – and cannot – legally compel an incidental take permit prior to the act of construction itself. See Ex. 4. Conversely, exercising jurisdiction over Plaintiff’s claims would subject the agency to prolonged and costly litigation merely for rendering non- binding technical advice and recitations of hornbook law, thereby discouraging FWS from cooperating with local governments and regulated parties in an effort to clarify the likelihood of Case 5:16-cv-05423-HRL Document 14 Filed 11/25/16 Page 19 of 25 National Security Guaranty, Inc. v. FWS, Case No. 5:16-cv-05423-HRL 13 DEFS.’ MOT. TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 civil and criminal liability under the ESA. See Marbled Murrelet 83 F.3d at 1074-75. The Court should decline to penalize the agency for its efforts at cooperative outreach, and should dismiss Plaintiff’s action for failure to identify a discrete, final agency action capable of judicial review. II. The APA’s Waiver Of Sovereign Immunity Does Not Apply Where, As Here, Plaintiff Has Adequate Recourse To State Tribunals Beyond failing to identify a “final agency action” necessary for judicial review, Plaintiff’s Complaint further runs afoul of the APA because Plaintiff has recourse to “[an]other adequate remedy in a court.” 5 U.S.C. § 704. Insofar as the Coastal Commission has concluded that Special Condition 15 remains unsatisfied or that the ESA flatly requires regulated parties to obtain incidental take permits prior to the taking of listed species – a reading of the Act which Defendants do not share – Plaintiff may challenge the Coastal Commission’s determination in California tribunals: California’s Coastal Development Act provides a suite of state judicial remedies for parties allegedly aggrieved by the Coastal Commission, Cal. Pub. Res. Code §§ 30800-812, and does not displace remedies otherwise provided by state law (including, for example, remedies provided by the state’s own Administrative Procedure Act, Cal. Gov’t Code Title 2, Division 3, Part 1). Because the gist of Plaintiff’s dispute is with the regulatory veto power wielded by the Coastal Commission – not with FWS’ factual predictions concerning take – these state remedies provide the best and only avenues for Plaintiff’s claims. Plaintiff’s ability to invoke adequate state court remedies precludes APA review under 5 U.S.C. § 704. See Shell Oil, 585 F.2d at 409. In Shell, plaintiff requested a Clean Water Act variance which California was empowered to grant in consultation with the federal Environmental Protection Agency. When California denied the variance, plaintiff brought suit in both federal and state courts, alleging in federal fora that while “the application for a variance was ostensibly made to and the variance was ostensibly denied by a Regional Board, and Case 5:16-cv-05423-HRL Document 14 Filed 11/25/16 Page 20 of 25 National Security Guaranty, Inc. v. FWS, Case No. 5:16-cv-05423-HRL 14 DEFS.’ MOT. TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 although the permit was ostensibly issued by the Regional Board, the [EPA] . . . made all material decisions and instructed the Regional Board to follow those decisions.” Id. at 411. The Ninth Circuit rejected any invocation of federal jurisdiction over what was an essentially local determination, concluding simply that “existence of a state judicial forum for the review of the [state] action forecloses the availability of the federal forum under the terms of the [APA].” Id. at 414. So too here: If Plaintiff believes the Coastal Commission has interpreted Special Condition 15 in a manner contrary to state or federal law, its proper grievance is with a state defendant in state court, not with FWS in a federal forum. See id. (“a holding that statutorily sanctioned advice by the EPA to a state agency constitutes final federal agency action reviewable in the federal courts would permit an applicant, dissatisfied with a decision of a state board, to circumvent the appellate process envisioned by the statute and bestow jurisdiction upon a federal court simply by alleging coercion or undue influence”); Action for Rational Transit v. W. Side Highway Project by Bridwell, 699 F.2d 614, 617 (applying Shell Oil to Clean Air Act suits capable of adjudication in state court), aff’d in part, rev’d on other grounds sub nom., Sierra Club v. U.S. Army Corps of Eng’rs, 701 F.2d 1011 (2d Cir. 1983). 4 III. Because Plaintiff’s Alleged Injury Flows From The Coastal Commission And Not From FWS, Plaintiff’s Lawsuit Is Not A “Case” Or “Controversy” Suitable For Resolution By A Federal Court Article III limits the judicial power of the United States to “Cases,” or “Controversies,” and a plaintiff must therefore demonstrate that it has standing to sue before a federal court may declare legal rights and obligations. The “irreducible constitutional minimum” of standing requires a showing “that (1) the plaintiff suffered an injury in fact, i.e., one that is sufficiently 4 Defendants are not aware of any pending lawsuit between Plaintiff and the Coastal Commission (or other California state defendants) concerning the Development, and Plaintiff has declined to answer Defendants’ inquiries as to whether any such actions are pending or contemplated. Case 5:16-cv-05423-HRL Document 14 Filed 11/25/16 Page 21 of 25 National Security Guaranty, Inc. v. FWS, Case No. 5:16-cv-05423-HRL 15 DEFS.’ MOT. TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical,’ (2) the injury is ‘fairly traceable’ to the challenged conduct, and (3) the injury is ‘likely’ to be ‘redressed by a favorable decision.’” Bates v. UPS, 511 F.3d 974, 985 (9th Cir. 2007) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). Plaintiff bears the burden of demonstrating standing “with the manner and degree of evidence required at the successive stages of the litigation.” Defs. of Wildlife, 504 U.S. at 561. Although “general factual allegations of injury resulting from the defendant’s conduct may suffice” at the pleading stage, id., Plaintiff must nonetheless “alleg[e] specific facts sufficient to satisfy” each element of standing. Schmier v. U.S. Court of Appeals for Ninth Circuit, 279 F.3d 817, 821, 823 (9th Cir. 2002) (emphasis added). “The facts to show standing must be clearly apparent on the face of the complaint,” Baker v. United States, 722 F.2d 517, 518 (9th Cir. 1983) (citation omitted), and “[a] federal court is powerless to create its own jurisdiction by embellishing otherwise deficient allegations of standing.” Whitmore v. Arkansas, 495 U.S. 149, 155-56 (1990). See also Warth v. Seldin, 422 U.S. 490, 518 (1975) (“It is the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court’s remedial powers.”). Here, Plaintiff has failed to adequately allege two components of Article III standing: Causation and redressability. With respect to causation, Plaintiff candidly admits that it is a state agency – not FWS – which issued a determinative ruling on Special Condition 15. Thus, Plaintiff alleges that “the Coastal Commission relied on the [FWS] letters . . . to support its determination that [Plaintiff] is legally required to apply for, and obtain an ITP, in order to comply with Special Condition No. 15.” Compl. ¶38 (emphasis added). By itself, this allegation precludes Plaintiff from adequately pleading causation, since Plaintiff’s Complaint pleads neither Case 5:16-cv-05423-HRL Document 14 Filed 11/25/16 Page 22 of 25 National Security Guaranty, Inc. v. FWS, Case No. 5:16-cv-05423-HRL 16 DEFS.’ MOT. TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 facts capable of negating its aforementioned characterization of the Coastal Commission’s action, nor any facts supporting an inference that FWS legally foreclosed the Development’s construction. See Townley v. Miller, 722 F.3d 1128, 1136 (9th Cir. 2013) (lack of standing where “plaintiffs have not connected . . . injury to the conduct the complaint says violated their rights”). For similar reasons, Plaintiff’s alleged injury is not redressable by its requested declaratory relief. While this prong of the standing inquiry requires “only a substantial likelihood that the injury will be redressed by a favorable judicial decision,” Washington Envtl. Council v. Bellon, 732 F.3d 1131, 1146 (9th Cir. 2013) (ciatation omitted), Plaintiff has nowhere alleged a likelihood that its requested relief – i.e., orders declaring that FWS may not compel incidental take permit applications – is likely to remedy the Coastal Commission’s interpretation of Special Condition 15. Of special note, Plaintiff has nowhere alleged how or why any relief relating to incidental take permits would redress the state’s independent determination that Plaintiff has not addressed certain technical problems identified in FWS’ letter of April 7, 2014, a distinct violation of Special Condition 15 with no relationship to the ESA’s permitting regime. Plaintiff’s omissions are fatal to its standing under Article III: “Relief that does not remedy the injury suffered cannot bootstrap a plaintiff into federal court; that is the very essence of the redressability requirement.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107 (1998). See also Guerrero v. Clinton, 157 F.3d 1190, 1195 (9th Cir. 1998) (explaining that challenges to non-final agency action also suffer from a lack of Article III redressability). Moreover, the Supreme Court has determined that a plaintiff fails to demonstrate redressability where, as here, there is “no controversy” over the requested declaratory relief—because the parties agree that FWS has no power to compel incidental take permits before a putative Case 5:16-cv-05423-HRL Document 14 Filed 11/25/16 Page 23 of 25 National Security Guaranty, Inc. v. FWS, Case No. 5:16-cv-05423-HRL 17 DEFS.’ MOT. TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 applicant takes listed species, the declaration sought by Plaintiff “is not only worthless to [Plaintiff], it is seemingly worthless to all the world.” Steel Co., 523 U.S. at 106. Ultimately, therefore, Plaintiff’s standing allegations (or lack thereof), only confirm what its claim for relief under the APA lays bare: Any viable claims concerning the Development’s effects on listed species or the Coastal Commission’s response thereto are properly directed against state defendants in state tribunals, not against Federal Defendants in this Court. CONCLUSION For the reasons set forth above, the Court should dismiss Plaintiff’s Complaint. DATED: November 25, 2016 Respectfully Submitted, JOHN C. CRUDEN, Assistant Attorney General SETH M. BARSKY, Chief MEREDITH L. FLAX, Assistant Chief /s/ Travis J. Annatoyn TRAVIS J. ANNATOYN Trial Attorney U.S. Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section Ben Franklin Station, P.O. Box 7611 Washington, D.C. 20044-7611 (202) 514-5243 (tel) (202) 305-0275 (fax) travis.annatoyn@usdoj.gov Attorneys for Federal Defendants Case 5:16-cv-05423-HRL Document 14 Filed 11/25/16 Page 24 of 25 National Security Guaranty, Inc. v. FWS, Case No. 5:16-cv-05423-HRL 18 DEFS.’ MOT. TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SECURITY NATIONAL GUARANTY, INC. Plaintiff, v. U.S. FISH AND WILDLIFE SERVICE, and DOES 1-10, Defendants. ) ) ) ) ) ) ) ) ) ) ) CASE NO. 5:16-cv-05423-HRL CERTIFICATE OF SERVICE I hereby certify that on November 25, 2016, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such to the attorneys of record. Robert D. Thornton rthornton@nossaman.com John J. Flynn, III jflynn@nossaman.com Stephanie N. Clark sclark@nossaman.com Steven Kaufman skaufmann@rwglaw.com /s/ Travis J. Annatoyn TRAVIS J. ANNATOYN Case 5:16-cv-05423-HRL Document 14 Filed 11/25/16 Page 25 of 25 Case 5:16-cv-05423-HRL Document 14-1 Filed 11/25/16 Page 1 of 31 Case 5:16-cv-05423-HRL Document 14-1 Filed 11/25/16 Page 2 of 31 Case 5:16-cv-05423-HRL Document 14-1 Filed 11/25/16 Page 3 of 31 Case 5:16-cv-05423-HRL Document 14-1 Filed 11/25/16 Page 4 of 31 Case 5:16-cv-05423-HRL Document 14-1 Filed 11/25/16 Page 5 of 31 Case 5:16-cv-05423-HRL Document 14-1 Filed 11/25/16 Page 6 of 31 Case 5:16-cv-05423-HRL Document 14-1 Filed 11/25/16 Page 7 of 31 Case 5:16-cv-05423-HRL Document 14-1 Filed 11/25/16 Page 8 of 31 Case 5:16-cv-05423-HRL Document 14-1 Filed 11/25/16 Page 9 of 31 Case 5:16-cv-05423-HRL Document 14-1 Filed 11/25/16 Page 10 of 31 Case 5:16-cv-05423-HRL Document 14-1 Filed 11/25/16 Page 11 of 31 Case 5:16-cv-05423-HRL Document 14-1 Filed 11/25/16 Page 12 of 31 Case 5:16-cv-05423-HRL Document 14-1 Filed 11/25/16 Page 13 of 31 Case 5:16-cv-05423-HRL Document 14-1 Filed 11/25/16 Page 14 of 31 Case 5:16-cv-05423-HRL Document 14-1 Filed 11/25/16 Page 15 of 31 Case 5:16-cv-05423-HRL Document 14-1 Filed 11/25/16 Page 16 of 31 Case 5:16-cv-05423-HRL Document 14-1 Filed 11/25/16 Page 17 of 31 Case 5:16-cv-05423-HRL Document 14-1 Filed 11/25/16 Page 18 of 31 Case 5:16-cv-05423-HRL Document 14-1 Filed 11/25/16 Page 19 of 31 Case 5:16-cv-05423-HRL Document 14-1 Filed 11/25/16 Page 20 of 31 Case 5:16-cv-05423-HRL Document 14-1 Filed 11/25/16 Page 21 of 31 Case 5:16-cv-05423-HRL Document 14-1 Filed 11/25/16 Page 22 of 31 Case 5:16-cv-05423-HRL Document 14-1 Filed 11/25/16 Page 23 of 31 Case 5:16-cv-05423-HRL Document 14-1 Filed 11/25/16 Page 24 of 31 Case 5:16-cv-05423-HRL Document 14-1 Filed 11/25/16 Page 25 of 31 Case 5:16-cv-05423-HRL Document 14-1 Filed 11/25/16 Page 26 of 31 Case 5:16-cv-05423-HRL Document 14-1 Filed 11/25/16 Page 27 of 31 Case 5:16-cv-05423-HRL Document 14-1 Filed 11/25/16 Page 28 of 31 Case 5:16-cv-05423-HRL Document 14-1 Filed 11/25/16 Page 29 of 31 Case 5:16-cv-05423-HRL Document 14-1 Filed 11/25/16 Page 30 of 31 Case 5:16-cv-05423-HRL Document 14-1 Filed 11/25/16 Page 31 of 31 ii .4 INREPLYREFËRTO: 08BVEN00¿016-CPA.0095 IJnited States Department of the Interior F]SH AND WILDLIFB SERVICE Venturâ Fish and Wildlif'e Office 2493 Poltola R'oad, Suito B Ventura, California 93003 ,-ümffiffiHVffim APR O B 2O16 cALtr0RNrA COASTAL COMMISSION ,*" lÏrf /1 t nn l\ QÌ- ll nr April 1,2016 Exeoutive Director. California. Coastal Comr.nission c/o Centråi Coast Offlrce' 725 Front Street, Suite 300 Santa Crua California 95060 Subjeot: Monterey Bay Shores Resort Development, Sand City, Monterey County, California Dear Çoastal Commission Executive Director, Commissioners, and Commission Staff, The U.S. Fish and Wildlife Servioe (Service) is, providing this letter to ths Calìfornia Coastal Cómmission (Commission) in response to your ieque.st fõr comments on a Novembor 1 1, 2015, draft "Habitat Proteciion Plan" (2015 HPP; EMC Planning Group Ino. 2015) for the proposed Monterey Bay Shores Resott Development, Sand City, Montorãy Coqnty, Califomia (projeé, The Frojeotis . proposed by Security National Guaranteç (Applioanf) and.includes the construction of a 184-room. hotel, 184 (92 residential and 92 visitor-serving) oondominium units, conference faoilities, a restautan! a spa, pools, iandscaping, public access, and parking, 'The proposed Project development would tot¿l 1.34 million square feet of resort ancl residential facilities within an approximaiély 12" acrc footprint. These facilities would be oonstructed on a 39-acre ocean*front site in Sand Cþ, California. On February 79,?0l6,Mike Watson and Dan Carl pf the Commission staf{discuised the 2015 'HPP with.Jacob Martin and Glen Knowles of my staff" It4r, Watson and lvtrr..Carl iequested our rwiew of the 2015IIPP and its adpquaoy.to address.çpocial condition 15 of your May 30, 2014, noiice of intent to issue a Coastal Development Permit (CDP) fo-r the Projeoi (Cornmission 2014). Muoh of speoial condition 15 is based on ccincerns raised in our letter on the Project, addressed t9 Mr. Watsou, dated April 7, 201,4 Q0I4 letter; Henry, in [itt. zALq. We also provided additional infonnation and clarifying oomments in lefters dated May 13, 2015, and August 2t,2015. The Service.'s responsibilities include administering the F.ndangered Species Act of L973, as amonded (Act), inciuding seotions 7 , 9, and I 0, Section 9. of the Act prohibits the taking of any federally listed endangercd or threatenod wildlife speoies. Section 3(19) of the Act defines "take" 10 mean "to harass, harm, puruue, hunt, shoot, wound, kiil,'trap, oapture, or oolleol or to attempt to engâge in any such conduot." Harrn is further defined by thp Service to includo significant habit¿t modifioation or degradation that results in death or iqjury to listed species by significantly impairing essential behavioralpattems, inoluding breedì4g, feeding,.or sheltering, Harass is defined by the Servioe as intentional or negligent actions that create the Iikelihood of injury to a listed species by annoying it to such an extent as to significantly disrupt nor.mal behavioral patterns which include, but are not lirnited to, breeding, feeding, or sheltering. The Act provides for civil and criminalpenaltios Case 5:16-cv-05423-HRL Document 14-2 Filed 11/25/16 Page 1 of 9 ,rl California' Co astal Commission for the unlawful taki.ng of listed specÌes. Bxempfions to the prohibitions against take. may be obtainod thrpugh coðrdination with the.Service in two ways. If a project is to be funded, authorÌzed, or cagied out by a Federal agenoy, and may affect a listed species, tho Federal agency must.oonsult with tho Service pursuant to seotion 1(a)(Z) of the Act. If a proposed project does not involve a Fcdcral agency but may re sult in the tako of a listed animal species, the proj ect proponent should apply to the Service for an incidontal taks pormit pursuant to section 10(aX1Xg) of the Act, To 'quallff for an inciclental take permit, project proponents must submit an application to the Service together with a habitat conservation plan (HCP) that dessribss, among other things, how the impacts of tho.proposed takíng of foderally listed speoies would be minimized and mitigated to the maximum extent practioable and how tho plan would be funded, A complets description of the requirements for a HCP.caq be found at section 10(a)(2)(B).of the .A.ct and at 50 Code of Federal Regulatienb 17 :??,:...: . .Mr. Watson and Mr. Carl requestecl that we analyzethe adequacy to which the 2015 HPP has addressed the so called'teight concêrns for western snowy plovef ' as discussed in special condition l5ofyourMay30,2014,noticeofintenttoissusaCDP, Wepresentedthesepointsinour20l4 letter. ,As stated in our May .13, 2015, letter, thcse points were intended as examples of the inadequacies ofthe 2013 IIPP and not an exhaustive list of conections needed to avoid t¿ke of listcd speoies, We reiterate here that even if thcse points are addressod, we believe the proposed project is still likely to result In t¿ke of listed species. However, as teohnloal assístance to you, we have reviewed the 2015 IIPP's "Responses to USFWS Conceüls" (section 4,8, pages 4-46 through4-4g) . ând offer the following discussìon of how the "eight concerns" arc addtessed there. 'We have : included the original'numbered list of concerns fi'om our 2014 letter(in italics),.below, with each concern.followed by our updated comments regarding how Ìt is addressed in.the 2015 HPP: Ø fhç Qí'scussion of nesting activity (of the wastern snowy plover (Charødrius nivosus nivosus)) tn sectÌon 4,2,I þøges 4-2 and 4-S) does not dlsøns tha 20 l2 or 2013 breedìng seasons, ín whích successful nests hatchedwithin the Project area. The 2015 HPP is iûaccutate and incompletE in its däscription of the recent history of. nesting aotivity and the level of survey effort within the Projeot area, We acknowledge that the IPP has bsen updated sinoe tho version wo commentod on in 201'4, but the updates introduoe ïnaccurate. informa:tion and potentially misleading language and do not present information on the mosi recent (2015) nosting season, as detailed in the following parugraphs: As disoussed in our May 13, 2015, lotter, during the 2014 nesting season a western snowy plovor nost was found in the bluff-top portion of the Project site (2014 bluff+op nest), vory near or possibly within the fooþrint of proposod Project facilities (California Department of Palks and Recroation, in litt. 20i4). Tho 2014 bluff-top nest was symbolioally fenoed by a concemed citïzen. We were not notifred oftftis fencing beforc it w¿s installed¿nd we normally require (Service ?007) that persóns Ìnstalling symbolic fencing are permitted undel the Act. The fenco was subsequently removed by an unknown party and the eggs disappeared. The 2015 HPP þages 3-8 and.4-13) aoouses the concernçd aitizenofiresiassing anlãenies ths cxistence of the 2014 Uluff-top nost, The 2015 HPP's detrial of tho oxistenc" ãf thr ãOt+ ¡lutgtop nest (see footnote pago 4-13) iíapparentty based on a site vÌsit conductod by tho Servioe ancl 20i4 surveys conducted by consulting ftrms (JRS and'EMC). The 2015 HPP provides no detail rogarding the sitc visit by the Sorvice or what was obseriecl and no membor of my staff visited the siþ, IVe presume tirat the 2015 HPP ¡efers to an investigatíon a L Case 5:16-cv-05423-HRL Document 14-2 Filed 11/25/16 Page 2 of 9 California Coastal Cornmissi on conducted,by Service LawEnforcement, which ocçurrecl after the eggs and fence had already . ' disappeared (i.e., the nest was not found because the.visit occuned affer it was already gone). The 2015 HPP provides no dqtâil regarding the consultant's surveys and we have no information on wlren or wheie they were conducted, Furthermore, no personnel of URS or EMC are i