Natural Resources Defense Council v. Kempthorne (539 F. Supp. 2d 1155, 2008)

Citations

539 F. Supp. 2d 1155

Full opinion text

ORDER DENYING DEFENDANT-IN-TERYENOR STATE WATER CONTRACTORS’ MOTION TO DISMISS PLAINTIFFS’ SECOND SUPPLEMENTAL COMPLAINT (Doc. 502)

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT-INTERVENORS SAN LUIS & DELTA-MENDOTA WATER AUTHORITY, ET AL. MOTION TO DISMISS PLAINTIFFS’ SECOND SUPPLEMENTAL COMPLAINT (Doc. 503)

ORDER DENYING DEFENDANT-IN-TERVENOR CALIFORNIA DEPARTMENT OF WATER RESOURCES’ MOTION TO DISMISS PLAINTIFFS’ SECOND SUPPLEMENTAL COMPLAINT (Doc. 516)

OLIVER W. WANGER, District Judge.

I. Introduction.

This case concerns the ongoing controversy regarding the threatened delta smelt species as it is impacted by the coordinated operations of the federally-managed Central Valley Project (“CVP”) and California’s State Water Project (“SWP”). In the motions now before the court, defendant-intervenors State Water Contractors (“SWC”); San Luis & Delta Mendota Water Authority (“SLDMWA”), Westlands Water District (“Westlands”), California Farm Bureau (“CFB”), and Glenn-Colusa Irrigation District (“GCID”), et al. (collectively “San Luis Parties”); and the California Department of Water Resources (“DWR”), have filed three separate motions to dismiss Natural Resources Defense Council’s, et al. (“Plaintiffs”) second supplemental complaint (“SSC”).

II. Background.

Plaintiffs’ first supplemental complaint alleged that the United States Fish and Wildlife Service (“FWS”) failed to perform its duties under the Endangered Species Act (“ESA”) § 7(a)(2) in consulting with the United States Bureau of Reclamation (“Bureau”) regarding the impacts of the 2004 Operations Criteria and Plan (“OCAP”) on the delta smelt. On March 20, 2006, Plaintiffs sent a sixty-day notice of intent to sue for violations of ESA § 7(a) and § 7(d) to Secretary of the Interior Gale A. Norton (“Norton”); to Kirk C. Rodgers, Regional Director, Mid-Pacific Region of the Bureau of Reclamation (“Rodgers”); and John W. Keys, Commissioner, Bureau of Reclamation (“Keys”).

On May 25, 2007, summary judgment was granted in favor of Plaintiffs on their claim against FWS under the Administrative Procedures Act (“APA”), 5 U.S.C. § 706. The summary judgment decision found, among other things, that the OCAP Biological Opinion (“OCAP BO”) was unlawful and inadequate in several respects. Supplemental briefing on interim remedies was ordered pending reconsultation and the issuance of a new biological opinion and a remedies evidentiary hearing scheduled.

In their remedies briefs, Plaintiffs maintained that in light of summary judgment in their favor, the court has jurisdiction, through its equitable powers under the APA, to enforce its judgment by requiring the Bureau to modify its CVP operations and DWR to modify its SWP operations, to prevent jeopardy to and extinction of the delta smelt, to avoid adverse modification of its critical habitat, and to prevent the irreversible and irretrievable commitment of resources. On July 10, 2007, Plaintiffs moved to supplement their complaint to add two claims against the Bureau to resolve uncertainty over the court’s authority to enjoin the Bureau from committing ongoing violations of the ESA. Plaintiffs were granted leave to file the SSC on August 30, 2007.

The SSC, among other things, added two claims for relief. The second claim for relief alleges that the Bureau has failed and is failing to ensure that its actions will neither jeopardize the continued existence of the delta smelt or destroy its critical habitat in violation of ESA § 7(a)(2) and APA § 706. The second claim for relief provides:

SECOND CLAIM FOR RELIEF

Violations Of ESA And APA: Bureau’s Failure To Ensure That Its Actions Are Not Likely To Jeopardize The Continued Existence Of The Species Or Destroy Or Adversely Modify Their Critical Habitat (16 U.S.C. § 1536(a)(2); 5 U.S.C. § 706)

74. Plaintiffs re-allege, as if fully set forth herein, each and every allegation contained in the preceding paragraphs.

75. As alleged above, the Biological Opinion incorrectly concludes that the 2004 OCAP will not jeopardize the delta smelt. Moreover, the Bureau has an independent duty to ensure that its actions avoid jeopardy. Implementation of the 2004 OCAP operations, including its direct, indirect, and cumulative effects, has both short-term and long-term adverse impacts on the delta smelt that jeopardize its continued existence. Accordingly, notwithstanding the Biological Opinion, by implementing the 2004 OCAP the Bureau has failed and is failing to ensure that its actions will not jeopardize the continued existence of the delta smelt, in violation of section 7(a)(2) of the ESA, 16 U.S.C. § 1536(a)(2).

76. For the same reasons, the Bureau also has failed and is failing to ensure that its actions are not likely to destroy or adversely modify the designated critical habitat of the delta smelt. The final rules designating critical habitat for the delta smelt describe many features of critical habitat essential for these species’ recovery, including, among other things, adequate water quality and quantity, water temperature, and safe passage conditions. Implementation of the 2004 OCAP will adversely impact these features of désignated critical habitat and will destroy and adversely modify the ability of the critical habitat to contribute to the recovery of the species, in violation of section 7(a)(2) of the ESA, 16 U.S.C. § 1536(a)(2).

77. Defendants’ failure to insure that their actions will not jeopardize the continued existence of the delta smelt or destroy or adversely modify their critical habitat is arbitrary, capricious, an abuse of discretion, and not in accordance with law, contrary to the APA, 5 U.S.C. § 706(2).

The third claim for relief alleges that the Bureau has taken and is taking actions that constitute irreversible and irretrievable commitments of resources prior to completion of a valid § 7 consultation in violation of ESA § 7(d) and APA § 706. The third claim for relief provides:

THIRD CLAIM FOR RELIEF

Violations Of ESA And APA: Irretrievable And Irreversible Commitments Of Resources That Foreclose Reasonable And Prudent Alternatives (16 U.S.C. § 1536(d); 5 U.S.C. § 706)

78. Plaintiffs re-allege, as if fully set forth herein, each and every allegation contained in the preceding paragraphs.

79. Section 7(d) of the ESA, 16 U.S.C. § 1536(d), prohibits federal agencies, including the Bureau, from making any irretrievable and irreversible commitments of resources during consultation pursuant to section 7(a)(2) of the ESA, 16 U.S.C. § 1536(a)(2), “which [have] the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures” that would avoid jeopardy to the species. This prohibition continues until the requirements of section 7(a) (2) are satisfied. 50 C.F.R. § 402.09.

80. The restrictions imposed by section 7(d) are in effect because the Bureau has not yet completed the consultation process lawfully by ensuring that a valid biological opinion is in place regarding the 2004 OCAP before putting the species at risk. The prohibition against the irreversible and irretrievable commitment of resources applies to and bars the implementation of any changes to CVP and SWP operations contained in the 2004 OCAP where such implementation involves irreversible or irretrievable commitments of resources until a valid section 7 consultation has been completed and a valid biological opinion has been adopted.

81.The Bureau has taken and is taking actions that could foreclose implementation of reasonable and prudent alternatives that would avoid jeopardy, including but not limited to signing and implementing new long-term contracts promising delivery of substantially increased quantities of water, in violation of section 7(d). This violation is arbitrary, capricious, an abuse of discretion, and not in accordance with law, contrary to the APA, 5 U.S.C. § 706(2).

SWC filed its motion to dismiss or strike (Doc. 502) on October 1, 2007. The San Luis Parties filed their motion to dismiss (Docs. 503-04) on October 1, 2007. DWR filed its motion to dismiss or strike (Docs. 516-17) on October 15, 2007. Dirk Kempthorne, Secretary of the United States Department of Interior and other federal defendants (“Federal Defendants”) filed a non-opposition brief to SWC’s, DWR’s, and the San Luis Parties’ motions to dismiss (Doc. 540) on November 16, 2007. Plaintiffs filed a joint opposition brief (Doc. 543) to SWC’s and DWR’s motions to dismiss because of the similarity of arguments on November 21, 2007. Plaintiffs filed an opposition brief to the San Luis Parties’ motion to dismiss (Doc. 544) on November 21, 2007. SWC, DWR, and the San Luis Parties filed separate reply briefs (Docs. 547, 548, 549, respectively) on December 3, 2007. GCID filed a separate reply brief (Doc. 550) on December 3, 2007. CFB filed a joinder to the San Luis Parties’ reply brief and GCID’s reply brief (Doc. 551) on December 3, 2007.

III. Legal Standard.

A. Rule 12(b)(1).

Federal Rule of Civil Procedure 12(b)(1) (“FRCP” or “Rule”) permits 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, 114 S.Ct. 1673, 1675, 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. Thornhill Publishing Co. v. General Telephone Electronics, 594 F.2d 730, 733 (9th Cir.1979); Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir.1977); Cervantez v. Sullivan, 719 F.Supp. 899, 903 (E.D.Cal.1989), rev’d on other grounds, 963 F.2d 229 (9th Cir.1992).

A defendant may also attack the existence of subject matter jurisdiction apart from the pleadings. Mortensen, 549 F.2d at 891. In such a case, the court may rely on evidence extrinsic to the pleadings and resolve factual disputes relating to jurisdiction. St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.1989); Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987); Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983). “No presumptive truthfulness attaches to plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Thornhill Publishing, 594 F.2d at 733 (quoting Mortensen, 549 F.2d at 891).

B. Rule 12(b)(6).

Federal Rule of Civil Procedure 12(b)(6) provides that a motion to dismiss may be made if the plaintiff fails “to state a claim upon which relief can be granted.” The question before the court is not whether the plaintiff will ultimately prevail, rather, it is whether the plaintiff could prove any set of facts in support of his claim that would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). “A complaint should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Van Buskirk v. CNN, Inc., 284 F.3d 977, 980 (9th Cir.2002).

In deciding whether to grant a motion to dismiss, the court “accept[s] all factual allegations of the complaint as true and draw[s] all reasonable inferences” in the light most favorable to the nonmoving party. TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir.1999); see also Rodriguez v. Panayiotou, 314 F.3d 979, 983 (9th Cir.2002). A court is not “required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001).

C. Rule 12(f).

The Federal Rules of Civil Procedure do not provide for a motion to strike documents or portions of documents other than pleadings. Rule 12(f) provides that “a court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). A motion to strike is limited to pleadings. See Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir.1983). However, a “motion to strike” materials that are not part of the pleadings may be regarded as an “invitation” by the movant “to consider whether [proffered material] may properly be relied upon.” United States v. Crisp, 190 F.R.D. 546, 551 (E.D.Cal.1999) (quoting Monroe v. Board of Educ., 65 F.R.D. 641, 645 (D.Conn.1975) (“[A] motion to strike has sometimes been used to call to courts’ attention questions about the admissibility of proffered material in [ruling on motions].”) (citations omitted)).

Motions to strike are disfavored and infrequently granted. See Pease & Curren Refining, Inc. v. Spectrolab, Inc., 744 F.Supp. 945, 947 (C.D.Cal.1990), abrogated on other grounds by Stanton Road Associates v. Lohrey Enters., 984 F.2d 1015 (9th Cir.1993). Such motions should be granted only where it can be shown that none of the evidence in support of an allegation is admissible. See id.

IV. Discussion.

SWC and DWR raise similar arguments in their respective motions to dismiss, and plaintiffs oppose both motions in a joint opposition brief. Therefore, SWC’s and DWR’s motions to dismiss are analyzed together. The San Luis Parties’ motion to dismiss raises arguments not addressed by either SWC or DWR and is therefore analyzed separately.

A. SWC’s and DWR’s Motions to Dismiss.

SWC seeks to dismiss or strike portions of Plaintiffs’ SSC that seek excessive or unavailable relief against DWR and SWC under Rule 12(b)(1), (b)(6), and (f). SWC advances the following two grounds to dismiss or strike portions of the SSC:

(A) The court lacks subject matter jurisdiction over DWR and SWC to directly enjoin their activities and, in particular, those activities that are unrelated to the OCAP because the SSC does not allege Plaintiffs submitted a written sixty-day notice to either DWR or SWC for alleged violations of the Endangered Species Act (“ESA”).

(B) The SSC fails to allege that either the DWR or SWC have violated or are violating the ESA, and therefore no direct relief may issue against DWR or SWC, particularly to the extent the challenged activity is unrelated to the OCAP.

SWC contends that it is improper for the SSC to include certain language in the prayer for relief that requests the court to enjoin “defendant-intervenors,” including DWR and SWC, from undertaking various activities, including “any action” which results in the taking of delta smelt or the destruction or adverse modification of its critical habitat. SWC also contends the lack of any charging allegations against DWR and SWC and the lack of a written sixty-day notice to DWR and SWC precludes the court from awarding the broadly-worded injunction that Plaintiffs’ prayer for relief seeks. As an alternative to dismissal, SWC requests that the words “and defendant-intervenors” be stricken from paragraph “D” of the SSC’s prayer for relief to the extent it includes DWR and SWC.

DWR seeks to dismiss or strike portions of Plaintiffs’ SSC under Rule 12(b)(1), (b)(6), and (f) on the following two grounds:

(A) The court lacks subject matter jurisdiction to render relief against DWR under the ESA because the plaintiffs failed to allege in the SSC that they provided DWR with a sixty-day notice that DWR has violated any provision of the ESA as required under 16 U.S.C. 1540(g).

(B) The SSC fails to allege that DWR has taken any action in violation of the ESA.

DWR seeks dismissal or striking portions of the prayer for relief in the SSC to the extent that it requests that the court “enjoin” DWR as a defendant-intervenor “from taking any action that would jeopardize the continued existence of the delta smelt or adversely modify is critical habitat” as set forth in paragraph “D.” DWR also requests that the court dismiss or strike portions of paragraph “E” to the extent it requests that the court enjoin DWR as a defendant-intervenor “from making any irreversible or irretrievable commitment of resources that could foreclose the implementation of reasonable prudent alternatives to protect the smelt and its critical habitat until a new Biological Opinion is completed.”

Plaintiffs’ opposition contends the only “concrete” relief sought by either motion is that the court strike the phrase “and defendant-intervenors” from paragraphs “D” and “E” in the prayer for relief. Plaintiffs argue that striking “and defendant-inter-venors” is trivial. Plaintiffs reason that this would not dismiss all or part of any claim for relief against SWC or DWR because the SSC does not allege violations of ESA § 7(a) or (d) by either of these parties and ESA § 7 only applies to federal agencies. Plaintiffs included references to all defendant-intervenors in the prayer for relief in recognition of the court’s broad equitable powers to include, as appropriate, any and all defendant parties in any injunctive relief prohibiting actions that violate the ESA. Additionally, Plaintiffs argue, whether or not the phrase “and defendant-intervenors” is included in the prayer for relief does not alter the ESA § 7 claims against the Federal Defendants, it does not make SWC and DWR directly subject to § 7 duties that apply only to federal agencies, and it does not affect the extent of the court’s power to fashion in-junctive relief against any party before it to prevent a violation of the ESA.

Plaintiffs rejoin the court does have subject matter jurisdiction over SWC and DWR even if they have no § 7 duties because subject matter jurisdiction concerns a court’s power to hear a matter-which it does here under federal question jurisdiction-and does not extend to individual parties, but rather to the action itself. Plaintiffs assert that SWC and DWR seek to avoid injunctive relief over their actions.

The ESA contains a citizen-suit provision that permits any person to commence a civil suit on his own behalf to enforce provisions of the ESA. 16 U.S.C. § 1540(g). The citizen suit provision is:

(g) Citizen suits

(1) Except as provided in paragraph (2) of this subsection any person may commence a civil suit on his own behalf—

(A) to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof; or

(B) to compel the Secretary to apply, pursuant to section 1535(g)(2)(B)(ii) of this title, the prohibitions set forth in or authorized pursuant to section 1533(d) or 1538(a)(1)(B) of this title with respect to the taking of any resident endangered species or threatened species within any State; or

(C) against the Secretary where there is alleged a failure of the Secretary to perform any act or duty under section 1533 of this title which is not discretionary with the Secretary.

The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce any such provision or regulation, or to order the Secretary to perform such act or duty, as the case may be. In any civil suit commenced under subparagraph (B) the district court shall compel the Secretary to apply the prohibition sought if the court finds that the allegation that an emergency exists is supported by substantial evidence.

(2)(A) No action may be commenced under subparagraph (1)(A) of this section—

(i) prior to sixty days after written notice of the violation has been given to the Secretary, and to any alleged violator of any such provision or regulation;

(ii) if the Secretary has commenced action to impose a penalty pursuant to subsection (a) of this section; or

(iii) if the United States has commenced and is diligently prosecuting a criminal action in a court of the United States or a State to redress a violation of any such provision or regulation.

(B) No action may be commenced under subparagraph (1)(B) of this section—

(i) prior to sixty days after written notice has been given to the Secretary setting forth the reasons why an emergency is thought to exist with respect to an endangered species or a threatened species in the State concerned; or

(ii) if the Secretary has commenced and is diligently prosecuting action under section 1535(g)(2)(B)(ii) of this title to determine whether any such emergency exists.

(C) No action may be commenced under subparagraph (1)(C) of this section prior to sixty days after written notice has been given to the Secretary; except that such action may be brought immediately after such notification in the case of an action under this section respecting an emergency posing a significant risk to the well-being of any species of fish or wildlife or plants.

(3) (A) Any suit under this subsection may be brought in the judicial district in which the violation occurs.

(B) In any such suit under this subsection in which the United States is not a party, the Attorney General, at the request of the Secretary, may intervene on behalf of the United States as a matter of right.

(4) The court, in issuing any final order in any suit brought pursuant to paragraph (1) of this subsection, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate.

(5) The injunctive relief provided by this subsection shall not restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any standard or limitation or to seek any other relief (including relief against the Secretary or a State agency).

16 U.S.C. § 1540(g). A citizen may not bring suit prior to sixty days after written notice of an alleged violation has been given to the Secretary and alleged violator. Southwest Ctr. for Biological Diversity v. Bureau of Reclamation, 143 F.3d 515, 520 (9th Cir.1998). The sixty-day notice is jurisdictional. Id. “A failure to comply with the notice requirement acts as an absolute bar to bringing suit under the ESA.” Id.

The purpose of the 60-day notice provision is to put the agencies on notice of a perceived violation of the statute and an intent to sue. When given notice, the agencies have an opportunity to review their actions and take corrective measures if warranted. The provision therefore provides an opportunity for settlement or other resolution of a dispute without litigation.

Id. (citing Forest Conservation Council v. Espy, 835 F.Supp. 1202, 1210 (D.Id.1993), aff'd, 42 F.3d 1399 (9th Cir.1994)).

SWC argues that the court lacks jurisdiction to impose remedies upon DWR and SWC, particularly for activities not covered by the OCAP BO. SWC’s argument that the court lacks subject matter jurisdiction over DWR and SWC to impose a remedy because neither party received a sixty-day notice is unavailing.

First, ESA § 7 applies to federal agencies. DWR is a state agency and SWC is an association of public agencies in California that purchase water from the SWP. SWC and DWR have no ESA § 7 duties and cannot be subject to a citizen suit for violating § 7. Neither the DWR nor SWC were sued by Plaintiffs for ESA relief in this case. They voluntarily sought and were granted permission to intervene in this lawsuit on their respective assertions to the court that they have cognizable and protectible interests that will be prejudiced or impaired if they were not permitted to intervene in this lawsuit. Neither party specially appeared and both voluntarily and unreservedly submitted to the court’s jurisdiction. DWR and SWC were not entitled to a sixty-day § 7 ESA notice. DWR and SWC sought to be and are parties to this lawsuit by their own choice.

Second, “[a] motion to dismiss under Federal Rule 12(b)(1) ... raises the fundamental question whether the federal district court has subject matter jurisdiction over the action before it.” 5B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (3d ed.2004) (emphasis added). “The federal courts are courts of limited jurisdiction and only can adjudicate those cases that fall within Article III of the Constitution and a congressional authorization enacted thereunder.” Id. “Subject matter jurisdiction should not be confused with personal jurisdiction, which involves the federal court’s ability to exercise power over an individual or entity for the purpose of adjudicating that defendant’s rights and liabilities stemming from a particular transaction or event.” Id. Rule 12(b)(1) motions “determine[] whether the plaintiff has a right to be in the particular court ....” Id.

Here, federal subject matter jurisdiction exists because this lawsuit arises under the APA and ESA, two federal statutory schemes. Plaintiffs have invoked the court’s federal question jurisdiction under 28 U.S.C. § 1331. In the SSC, Plaintiffs allege violations of § 7(a)(2) by the Federal Defendants for failing to ensure their actions will not jeopardize the delta smelt or adversely modify its critical habitat. Plaintiffs also allege the Bureau is taking actions that could foreclose implementation of reasonable and prudent alternatives including, but not limited to, signing and implementing new long-term water service contracts promising delivery of substantially increased quantities of water in violation of § 7(d). Federal subject matter jurisdiction is properly invoked over this action, and Plaintiffs can obtain relief against the Federal Defendants for violations of the ESA. Personal jurisdiction exists over SWC and DWR because they voluntarily intervened in this case under Rule 24 for all purposes including trial. DWR and SWC do not argue the court lacks personal jurisdiction over them. Each has facilities and entities that affect or are affected by operations of the CVP and SWP in the Eastern District of California that are alleged to violate ESA § 7, even if these § 7 claims do not directly apply to SWC and DWR. There is no basis to dismiss the ESA claims as to those parties, as Plaintiffs’ claims for relief include that DWR’s and SWC’s combined activities with the federal agencies, are violating the ESA.

SWC and DWR alternatively seek to strike the phrase “and defendant-interve-nors” from paragraphs “D” and “E” in the SSC’s prayer for relief under Rule 12(f). Paragraphs “D” and “E” seek to:

D. Enjoin the defendants and defendant-intervenors from taking any action that would jeopardize the continued existence of the delta smelt or destroy or adversely modify its critical habitat.

E. Enjoin the defendants and defendant-intervenors from making any irreversible or irretrievable commitment of resources that could foreclose the implementation of reasonable and prudent alternatives to protect the smelt and its critical habitat until a new Biological Opinion is completed.

This requested relief is sought under ESA § 7(a)(2) with respect to paragraph “D” and ESA § 7(d) with respect to paragraph “E.” As discussed above, ESA § 7 does not apply to SWC and DWR because neither is federal agency. Plaintiffs argue these paragraphs seek injunctive relief against defendant-intervenors under the court’s broad equitable powers to prevent violations of the ESA.

Although DWR and SWC are not federal agencies, as a practical matter, to the extent such defendant-intervenors engage in actions in concert with the federal agencies, the court has authority to issue injunctive relief over parties to this lawsuit who have actively participated in all aspects of the litigation, have sought dispositive relief by summary judgment, and have addressed interim remedies that are required pending FWS’s issuance of a new biological opinion after the completion of the ongoing reconsultation regarding the OCAP. Rule 65(d) injunctions bind the following persons who receive actual notice through personal service or otherwise: the parties; the parties’ officers, agents, servants, employees, and attorneys; and other persons who are in active concert or participation with any of the previously mentioned persons. Fed.R.Civ.P. 65(d)(2)(A-C).

SWC’s and DWR’s motions to dismiss under Rule 12(b)(1) and 12(b) (6) are DENIED. SWC’s and DWR’s motions to strike the phrase “and defendant intervenors” from paragraphs “D” and “E” in the SSC’s prayer for relief are DENIED.

B. San Luis Parties’ Request for Judicial Notice.

The San Luis Parties request that the court take judicial notice of three documents obtained from the Bureau’s website: (1) a print out of an introductory list categorizing and web-linking various Long-Term Water Service Contracts; (2) a print out of the 2005 Executed Water Service Contracts, which includes information regarding the name of the contractor with the Bureau and the contract number; and (3) a printout of the 2005 Executed Water Sacramento River Settlement Contracts, which includes the name of the contractor with the Bureau and the contract number.

Each of these documents is a public record available on official United States government websites maintained by the Bureau’s Mid-Pacific Region. These three documents evidence the existence of water contracts entered into between the Bureau and various contracting parties since 2005 that are not identified in the Plaintiffs SSC. Plaintiffs have not objected to the San Luis Parties’ request for judicial notice. These documents are prepared and made available by a government agency to inform the public of its official acts in entering into these contracts. See In re Calpine Corporation Securities Litigation, 288 F.Supp.2d 1054, 1075-76 (N.D.Cal.2003) (taking judicial notice of documents issued by the Securities and Exchange Commission and obtained from the its website). The existence of these water contracts are not reasonably subject to dispute and are the proper subject of judicial notice under Federal Rule of Evidence 201 because their existence is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

The San Luis Parties’ request for judicial notice is GRANTED.

C. San Luis Parties’ Motion to Dismiss.

The San Luis Parties move to dismiss Plaintiffs’ third claim for relief under Rule 12(b)(6).

Plaintiffs’ third claim for relief alleges:

THIRD CLAIM FOR RELIEF

Violations Of ESA And APA: Irretrievable And Irreversible Commitments Of Resources That Foreclose Reasonable And Prudent Alternatives (16 U.S.C. § 1536(d); 5 U.S.C. § 706)

78.Plaintiffs re-allege, as if fully set forth herein, each and every allegation contained in the preceding paragraphs.

81. The Bureau has taken and is taking actions that could foreclose implementation of reasonable and prudent alternatives that would avoid jeopardy, including but not limited to signing and implementing new long-term contracts promising delivery of substantially increased quantities of water, in violation of section 7(d). This violation is arbitrary, capricious, an abuse of discretion, and not in accordance with law, contrary to the APA, 5 U.S.C. § 706(2).

The San Luis Parties advance three reasons why the third claim for relief should be dismissed under Rule 12(b)(6). First, as a matter of law, a federal agency’s § 7(d) obligation expires upon the issuance of a no jeopardy biological opinion. Second, even if Plaintiffs attempt to reframe their third claim for relief to allege violations of § 7(d) after the Bureau reinitiated consultation, Plaintiffs never provided a sixty-day notice of such claim. Third, no specific actions and actors are identified and the allegations are so vague and ambiguous that they do not state a claim under § 7(d).

The San Luis Parties also seek to dismiss the third claim under Rule 12(b)(7) for failure to join an indispensable party under Rule 19. During the interim remedies proceedings, Plaintiffs announced that under the third claim for relief they seek to invalidate numerous water supply and settlement contracts between the Bureau and various entities. Plaintiffs, however, have not joined many of these entities as parties. The San Luis Parties argue that Plaintiffs’ failure to join these parties is contrary to Rule 19, which requires all parties to a contract to be joined in a suit to invalidate such contract, especially when the contract involves valuable property interests such as water rights.

The San Luis Parties alternatively argue that if Plaintiffs’ third claim for relief is not dismissed, a more definite statement under Rule 12(e) is required.

1. Motion to Dismiss for Failure to State a Claim.

The San Luis Parties urge the third claim for relief must be dismissed because no ESA § 7(d) action exists. Plaintiffs have not provided the proper sixty-day notice; Plaintiffs have not pleaded sufficient facts to support their third claim for relief.

a. ESA § 7(d) Prohibition.

Plaintiffs’ third claim for relief is premised on the claim that the Bureau remained subject to § 7(d) after the issuance of the no jeopardy OCAP BO on February 16, 2005. The Plaintiffs’ sixty-day notice dated March 20, 2006, asserted that the “additional restrictions imposed by § 7(d) are in effect because the Bureau has not yet completed the consultation process lawfully by ensuring that a valid biological opinion is in place before putting the species at risk.” According to the San Luis Parties, this means that Plaintiffs assert that the Bureau was not relieved from the prohibitions of § 7(d) by completing the consultation process and receiving a no jeopardy biological opinion from FWS. The San Luis Parties argue the third claim is non-cognizable because it attempts to apply § 7(d) to actions taken by the Bureau after it completed consultation and received a no jeopardy biological opinion.

Plaintiffs rejoin their third claim alleges that the Bureau’s “implementation [of the OCAP] involves irreversible and irretrievable commitments of resources,” and the Bureau has been and remains in violation of ESA § 7(d) and APA § 706. Plaintiffs identify the signing and implementation of long-term water service contracts promising delivery of substantially increased quantities of water as an example of irreversible and irretrievable commitments of resources in violation of § 7(d). Plaintiffs assert the signing and implementation of these contracts violate § 7(d) because “until a valid section 7 consultation has been completed and a valid biological opinion has been adopted,” the § 7(d) prohibition remains in effect.

The Federal Defendants have filed a statement of non-opposition to DWR’s, SWC’s, and the San Luis Parties’ motions to dismiss. The Federal Defendants maintain that § 7(d) did not apply to the Bureau when it signed the water service contracts because the Bureau had already completed consultation with FWS and received the no jeopardy OCAP BO. The Bureau argues § 7(d) only applies when it is “in consultation” with FWS, not after consultation is completed; the Bureau cites § 7(d) and 50 C.F.R. § 402.09 for support. Nothing prevents Plaintiffs from alleging that the Bureau’s renewal of the water contracts violated § 7(a)(2), which remains in force after consultation is complete. Plaintiffs have not made this allegation.

To determine the temporal scope of § 7(d), a review of the statute, the legislative history to the ESA’s 1978 amendments, the regulations promulgated under the ESA, and FWS’s and NMFS’s interpretation of the regulations is helpful. “The starting point for our interpretation of a statute is always its language.” United States v. Fei Ye, 436 F.3d 1117, 1120 (9th Cir.2006). “When the statute is ambiguous or the statutory language does not resolve an interpretive issue, our approach to statutory interpretation is to look to legislative history.” SEC v. McCarthy, 322 F.3d 650, 655 (9th Cir.2003). The text of § 7(d) is the starting point. Section 7(d), captioned “Limitation on Commitment of Resources[,]” provides:

After initiation of consultation required under subsection (a) (2), the Federal agency and the permit or license applicant shall not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (a) (2).

While the text of § 7(d) prohibits the commitment of resources after initiation of consultation under § 7(a)(2), it is silent when the § 7(d) prohibition ends. FWS and National Marine Fisheries Service (“NMFS”), however, have adopted joint regulations governing § 7 consultations, which refer to when the § 7(d) prohibition ends. In particular, FWS and NMFS promulgated regulation § 402.09, which addresses the irreversible or irretrievable commitment of resources under § 7(d). Regulation § 402.09 provides:

After initiation or reinitiation of consultation required under section 7(a)(2) of the Act, the Federal agency and any applicant shall make no irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternatives which would avoid violating section 7(a)(2). This prohibition is in force during the consultation process and continues until the requirements of section 7(a)(2) are satisfied. This provision does not apply to the conference requirement for proposed species or proposed critical habitat under section 7(a)(4) of the Act.

50 C.F.R. § 402.09 (2006) (emphasis added). The San Luis Parties and Federal Defendants argue the phrase “until the requirements of section 7(a)(2) are satisfied” in regulation § 402.09 means the issuance of a no jeopardy biological opinion, while Plaintiffs argue the phrase means until a valid § 7 consultation has been completed and a valid biological opinion has been adopted.

The 1986 regulations, of which § 402.09 is a part, amended existing rules governing § 7 consultations by implementing the changes required by the 1978, 1979, and 1982 amendments to the ESA. Interagency Cooperation — Endangered Species Act of 1973, as Amended, 51 Fed.Reg. 19926 (June 3, 1986). The preamble to the final regulations explains the final rules adopted, the substantive issues of each section, noteworthy modifications from the proposed rules, significant changes from the 1978 rules, and responses to public comments. 51 Fed.Reg. at 19928. The proposed rule that addressed the duration of the § 7(d) prohibition read as follows:

After initiation of the consultation process, the Federal agency and any applicant shall make no irreversible or irretrievable commitment of resources with respect to the agency action which may have the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would avoid violating Section 7(a)(2) of the act. This requirement exists until: a “no jeopardy” biological opinion is issued by the Service (see § 402.15(g)); the Federal agency adopts reasonable and prudent alternatives; or an exemption is granted under Section 7(h). This provision does not apply to proposed species or proposed critical habitat.

Interagency Cooperation; Endangered Species Act of 1973, 48 Fed.Reg. 29990, 30000 (June 29, 1983).

The language of the proposed rule was corrected to conform more closely to § 7(d). 51 Fed.Reg. at 19939. The proposed rule addressed the duration of the § 7(d) prohibition as follows: “This requirement exists until: a “no jeopardy” biological opinion is issued by the Service (see § 402.15(g)); the Federal agency adopts reasonable and prudent alternatives; or an exemption is granted under Section 7(h).” Id. Several commenters asked for a clarification or expansion of the criteria that terminate § 7(d) restrictions. Id. FWS’s and NMFS’s summary of the commenters’ remarks is as follows:

Noting that the Act is silent as to when the section 7(d) prohibition ceases, one commenter contended that the prohibition should end when consultation is terminated. Another commenter, concerned that the proposed language would deprive Federal agencies of the responsibility and authority to determine compliance with section 7(a)(2), urged the addition of a fourth criterion that would terminate the section 7(d) prohibition if “the Federal agency determines that its proposed action will not jeopardize the continued existence of endangered and threatened species or adversely affect critical habitat.” Another commenter went further and urged the Service to adopt other criteria where Federal agency compliance with section 7(a)(2) would remove the section 7(d) restriction. Two other commenters felt that the second criterion-adoption of reasonable and prudent alternatives— must be restricted to those recommended by the Service. They opposed allowing the Federal agency to formulate its own “reasonable and prudent alternatives” without Service approval in order to avoid the prohibition of section 7(d).

Id. at 19939-40. FWS and NMFS offered the following explanation in response to the commenters’ remarks:

The commenters raise valid concerns that illustrate the need to reexamine the duration of the prohibition against the irreversible and irretrievable commitment of resources. First, the Service recognizes that, although its biological opinions issued by authority of section 7(b) are entitled to great deference, the ultimate decision of whether to proceed with an action in light of section 7 responsibilities rests with the Federal agency. The proposed language did preempt Federal agency discretion by placing an agency that disagreed with the conclusion of the Service’s biological opinion in the awkward position of facing section 7(d) restrictions on its action, even though it had determined through its own analysis that the section 7(a)(2) standards were satisfied. Second, case law indicates that section 7(d)’s proscriptive force continues while Federal agency efforts to conform its action to the requirements of section 7(a)(2) are “ongoing.” See North Slope Borough v. Andrus, 642 F.2d 589, 611 n. 143 (D.C.Cir.1980); Conservation Law Foundation of New England, Inc. v. Andrus, 623 F.2d 712, 714 n. 1 (1st Cir.1979). The final rule has been amended to provide that the section 7(d) prohibition is in force during consultation and continues until the requirements of section 7(a)(2) are satisfied.

Therefore, if a Federal agency receives a “no jeopardy” biological opinion from the Service or chooses any reasonable and prudent alternative recommended by the Service, the requirements of section 7(a)(2) are met and the section 7(d) prohibition expires. If the Federal agency disagrees with a “jeopardy” biological opinion or chooses an alternative not provided by the Service based on its own analysis, then the validity of the Federal agency’s “no jeopardy” finding will decide whether section 7(a)(2) has been satisfied and whether section 7(d) no longer applies. If it is later determined that the finding is not valid, the Federal agency would be taking the risk of noncompliance with the Act.

Id. at 19940 (emphasis added).

FWS has interpreted the phrase “[t]his prohibition is in force during the consultation process and continues until the requirements of section 7(a)(2) are satisfied” in 50 C.F.R. § 402.09 to mean that if a no jeopardy/adverse modification biological opinion is issued, the § 7(d) obligation expires. Endangered Species Consultation Handbook, Figure 2-1, p. 2-9 (1998). Figure 2-1 of FWS’s and NMFS’s Endangered Species Consultation Handbook provides:

Figure 2-1. Application of section 7(d): irreversible or irretrievable commitment of resources.

Agency requests consultation, either formal or informal

I. “May affect” situation exists formal consultation is required section 7(d) prohibition begins

II. If:

A.The Services concur with a “not likely to adversely affect” finding section 7(d) not applicable

B.The Services issue a no jeopardy/adverse modification biological opinion, or the action agency chooses a reasonable prudent alternative from a jeopardy/adverse modification opinion section 7(d) obligation expires

C.Action agency chooses to disagree with the Services’ jeopardy/adverse modification determination, or chooses to implement an alternative that has not been prescribed by the Services; and

1. The best available scientific and commercial data support the agency decision section 7(d) obligation expires

2. The action agency decision is not justified by available data

section 7(d) applies

III. Reinitiation of consultation is required under 50 C.F.R. § 402.16 (Return to step II)applies

section 7(d) applies

Section 7(d) was enacted in response to the Supreme Court’s decision in Tennessee Valley Auth. v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) [hereinafter TVA]. Pacific Rivers Council v. Thomas, 936 F.Supp. 738, 745 (D.Idaho 1996). In TVA the Court was faced with the issue of whether the ESA requires a court to enjoin the operation of a virtually completed federal dam, which had been authorized prior to the enactment of the ESA and constructed at a cost of millions of dollars, when the Secretary of the Interior had determined that operation of the dam would eradicate an endangered species. TVA 437 U.S. at 156, 98 S.Ct. 2279. TVA involved the construction of Tellico Dam. Congress had appropriated funding for Tellico Dam every year since 1967, until progress was stopped by a tangle of lawsuits and administrative proceedings. Id. During construction of the dam, an unknown species of fish, now known as the snail darter, was discovered in the waters of the Little Tennessee River. Id. at 158, 98 S.Ct. 2279. Roughly two years later, the snail darter was listed as an endangered species. Id. at 161, 98 S.Ct. 2279. Funding for Tellico Dam continued after the snail darter was listed. Id. at 163-64, 98 S.Ct. 2279. In early 1976, environmental groups filed suit to enjoin completion of the dam and impoundment of the reservoir on the ground that those actions would violate the ESA by directly causing the extinction of the snail darter. Id. at 164, 98 S.Ct. 2279. A trial was held and the district court found that closure of the dam and the consequent impoundment of the reservoir would result in the adverse modification, if not complete destruction, of the snail darter’s critical habitat making it highly probable that the continued existence of the snail darter would be jeopardized. Id. at 165, 98 S.Ct. 2279. The district court also found that the project was roughly 80% complete and there were no alternatives to impoundment of the reservoir short of scrapping the entire project. Id. at 166, 98 S.Ct. 2279. The district court further found that if the Tellico Project was permanently enjoined, nearly $53 million would be lost in non-recoverable obligations, meaning that a large.portion of the $78 million already expended would be wasted. Id. Weighing these various findings, the district court concluded:

At some point in time a federal project becomes so near completion and so incapable of modification that a court of equity should not apply a statute enacted long after inception of the project to produce an unreasonable result.... Where there has been an irreversible and irretrievable commitment of resources by Congress to a project over a span of almost a decade, the Court should proceed with a great deal of circumspection.

Id. The district court dismissed the plaintiffs’ lawsuit. Id. at 165, 98 S.Ct. 2279. The Sixth Circuit Court of Appeals reversed and found that the district court abused its discretion by not issuing an injunction in the face of a blatant statutory violation. Id. at 168, 98 S.Ct. 2279. The Sixth Circuit remanded with instructions that a permanent injunction issue halting all activities incident to the Tellico Project which may destroy or modify the critical habitat of the snail darter. Id. The Supreme Court affirmed the Sixth Circuit finding “[t]he plain intent of Congress in enacting [the ESA] was to halt and reverse the trend toward species extinction, whatever the cost.” Id. at 184.

It is against the Tellico Project background “that § 7(d) must be scrutinized.” Pacific Rivers Council, 936 F.Supp. at 745. “Congress enacted § 7(d) to prevent Federal agencies from ‘steamrolling’ activity in order to secure completion of the projects regardless of their impact on endangered species.” Id. In response to the huge waste of resources committed to the Tellico Project, the court in Pacific Rivers Council stated:

Congress enacted § 7(d) to preclude the investments of large sums of money in any endeavor if (1) at the time of the investment there was a reasonable likelihood that the project, at any stage of development, would violate § 7(a)(2), and (2) that investment was not salvageable (i.e. it could not be applied to either an alternative approach to the original endeavor or to another project).

Id. (citing North Slope Borough v. Andrus, 486 F.Supp. 332, 356 (D.D.C.1980), aff'd in part and rev’d in part on other grounds, 642 F.2d 589 (D.C.Cir.1980)). By requiring consultation to be initiated prior to the commitment of resources, Congress sought to prevent the situation that occurred in TVA, where proceeding with the project would have violated the ESA, but halting the project would not have been a reasonable, economically feasible alternative in light of the huge investment in the project. Pacific Rivers Council, 936 F.Supp. at 745. “Courts have consistently stated that the purpose of § 7(d) is to ‘ensur[e] that the status quo will be maintained during the consultation process.’ ” Id. (citing Conner v. Burford, 848 F.2d 1441, 1445 n. 34 (9th Cir.1988) cert. denied 489 U.S. 1012, 109 S.Ct. 1121, 103 L.Ed.2d 184 (1989)) (alteration in original).

The legislative history behind § 7(d) is sparse, but it does provide some insight to the duration of the § 7(d) prohibition. The House Report describing the 1978 amendments to ESA § 7 contains a description of the purpose of § 7 and subsequent judicial interpretations, most notably the Supreme Court’s decision in TVA. H.R.Rep. No. 95-1625, at pp. 10-12 (1978). In particular, with respect to § 7(d), the legislative history states:

The new section 7(c)(4) [enacted as ESA § 7(d)] of the act would further strengthen the consultation process. It prohibits any Federal agency from making any irreversible or irretrievable commitment of resources once consultation has been initiated if such commitment would have the effect of foreclosing efforts to avoid the adverse impacts on the species or their critical habitat.

Id. at p. 20 (emphasis added). The House Conference Report discusses that the integrity of the interagency consultation process under § 7 is preserved, and that four provisions were included to expedite and improve the consultation process. H.R.Rep. No. 95-1804, at 18 (1978) (Conf. Rep.). The four provisions in the House Conference Report are described as follows:

First, consultation would have to be completed within 90 days or such other time as it is mutually agreeable to the Secretary and the Federal Agency. Second, after the conclusion of consultation the Secretary is required to provide the Federal Agency a written statement detailing whether the agency’s actions are in violation of section 7 and outline any reasonable and prudent alternatives to the action.

Third, a biological assessment shall be conducted for the purpose of identifying the presence of any proposed or listed species which might be affected by projects where no contracts for actual construction have been entered into and no construction has begun before the date of enactment of this bill and where the Secretary has advised that such species may be present.

Fourth, after the initiation of consultation, the Federal Agency is prohibited from making any irreversible or irretrievable commitment of resources which has the effect of foreclosing the formulation of implementation of reasonable and prudent alternatives to the proposed action.

Id. at 18-19.

It appears that only one case has directly addressed when the § 7(d) prohibition expires. In Enos v. Marsh, 616 F.Supp. 32 (D.Haw.1984), a case overlooked by the parties, residents of the Waianae Coast on the island of Oahu, brought suit against the Secretary of the Army, among others, for declaratory and injunctive relief seeking to stop the construction of a deep draft harbor at Barbers Point. The plaintiffs argued that the Army Corps of Engineers violated § 7(d) which prohibited the Corps from making irreversible or irretrievable commitments of resources which had the affect of foreclosing the formulation or implementation of reasonable and prudent alternatives. Id. at 62. In determining that no violation of the ESA occurred, the district court held that § 7(d) duties “exist] only while the Corps is consulting with the Service.” Id. The Corps’ § 7(d) “duty is terminated when the consultation is terminated.” Id. “[0]nce the Service has issued its biological opinion (as it has done here), no further consultation is required.” Id. (citing Stop H-3 v. Lewis, 538 F.Supp. 149 (D.Haw.1982)).

These authorities establish that the § 7(d) prohibition commences with the initiation of consultation and ends upon FWS’s issuance of a no jeopardy/adverse modification 61 biological opinion. There is no dispute when the § 7(d) prohibition commences. Section 7(d) provides that the federal agency and permit or license applicant shall not make an irreversible or irretrievable commitment of resources after initiation of consultation; initiation of consultation triggers the § 7(d) prohibition. As other courts have explained, the purpose of § 7(d) is to maintain the “status quo” during the § 7 consultation process. Pacific Rivers Council, 936 F.Supp. at 745 (citing Conner v. Burford, 848 F.2d 1441, 1445 n. 34 (9th Cir.1988) cert. denied 489 U.S. 1012, 109 S.Ct. 1121, 103 L.Ed.2d 184 (1989)). Plaintiffs’ sixty-day notice, at page nine, even acknowledges § 7(d)’s purpose.

Regulation § 402.09 supports the San Luis Parties’ and Federal Defendants’ argument that the § 7(d) prohibition ends when FWS issues a no jeopardy/adverse modification biological opinion. The regulation states that the § 7(d) prohibition is in force during the consultation process and continues until the requirements of § 7(a) (2) are satisfied. The plain language of the regulation contemplates that the § 7(d) prohibition remains in force during the consultation process. Consultation is not an ever-lasting and indefinite process; it has triggering actions and must end at some point when FWS determines that the federal agency’s proposed action either will or will not jeopardize or adversely modify the critical habitat of a listed species. Upon the issuance of a no jeopardy biological opinion, FWS has completed its duties and the consultation process ends. Enos, 616 F.Supp. at 62 (citing Stop H-3 v. Lewis, 538 F.Supp. 149 (D.Haw.1982)). The issuance of a no jeopardy/adverse modification biological opinion satisfies the procedural requirements of § 7(a)(2). It is at this point that the federal action agency can proceed with its formerly proposed actions that were the subject of consultation.

The preamble to regulation § 402.09 also supports the San Luis Parties’ and Federal Defendants’ contention that the § 7(d) prohibition ends upon the issuance of a no jeopardy/adverse modification biological opinion. In adopting § 402.09, which was modified from its proposed form after several comments were received, FWS understood § 402.09 in its final form to mean that the § 7(d) prohibition expired upon the issuance of a no jeopardy/adverse modification biological opinion. The preamble states: “[t]he final rule has been amended to provide that the section 7(d) prohibition is in force during consultation and continues until the requirements of section 7(a)(2) are satisfied.” 51 Fed.Reg. at 19940. In the next sentence FWS states: “[t]herefore, if a Federal agency receives a “no jeopardy” biological opinion from the Service or chooses any reasonable and prudent alternative recommended by the Service, the requirements of section 7(a)(2) are met and the section 7(d) prohibition expires.” Id. Figure 2-1 in FWS’s Consultation Handbook is consistent with both regulation § 402.09 and the preamble.

The brief legislative history behind § 7(d) also supports the argument that the § 7(d) prohibition ends upon the issuance of a no jeopardy/adverse modification biological opinion. The House Report states that § 7(d) “would further strengthen the consultation process.” H.R.Rep. No. 95-1625, at p. 20. In overhauling ESA § 7 in 1978, Congress was concerned with the integrity of the consultation process. H.R.Rep. No. 95-1804, at 18 (Conf.Rep.).

Finally, in the only case found discussing the temporal scope of § 7(d), the district court in Enos, determined that the Army Corps of Engineers had not violated the ESA. In making this determination the court held that a federal agency’s § 7(d) duty exists only while the agency is consulting with the service. Enos, 616 F.Supp. at 62. The court also concluded that the § 7(d) duty terminates when consultation terminates, and that consultation terminates once the service issues its biological opinion. Id. Plaintiffs have not cited a case to the contrary.

FWS’s interpretation of § 7(d) regarding when a federal agency’s § 7(d) duty expires is reasonable and consistent with the § 7 consultation process as a whole and is entitled to deference under Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and National Assoc, of Home Builders v. Defenders of Wildlife, — U.S.-,-, 127 S.Ct. 2518, 2533-36, 168 L.Ed.2d 467 (2007).

Based on commencement of the § 7(d) prohibition upon initiation of consultation, which ends with the issuance of a no jeopardy/adverse modification biological opinion, the SSC must be analyzed to determine whether Plaintiffs have stated a valid claim against the Bureau for violating § 7(d). Several key dates and events are critical to Plaintiffs’ § 7(d) claim. On July 30, 2004, FWS issued the original biological opinion conc