Full opinion text
MEMORANDUM DECISION RE PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT (DOC. 114) OLIVER W. WANGER, District Judge. I. INTRODUCTION This case concerns enforcement by the California Department of Fish and Game (“CDFG”), through its Director John McCamman, (“State Defendant”) of state sportfishing regulations designed to protect striped bass population in the Sacramento-San Joaquin Delta. Plaintiffs, the Coalition For a Sustainable Delta, et al., (“Plaintiffs” or “the Coalition”), allege that State Defendants’ enforcement of these regulations violates section 9 of the Endangered Species Act (“ESA” or “Section 9”), because striped bass prey on and take various ESA-listed species. Plaintiffs move for summary judgmenVadjudication that: (1) Plaintiff Dee Dillon has standing; (2) State Defendant’s enforcement of the striped bass sportfishing regulations violates Section 9; and (3) the Central Valley Improvement Act (“CVPIA”), Pub. L. 102-575,106 Stat. 4600 (1992), does not provide a legitimate affirmative defense in this case. Doc. 114. State Defendant and Defendant Intervenors Central Delta Water Agency, et al. (“Central Delta”) oppose Plaintiffs’ motion. Docs. 123 & 125. Central Delta’s opposition focuses primarily on the CVPIA affirmative defense. Plaintiffs filed separate replies to each of the oppositions. Docs. 143 & 144. State Defendant originally cross-moved for summary adjudication that Dee Dillon does not have standing. Doc. 113. After additional discovery was completed, State Defendant withdrew its motion, recognizing that “Mr. Dillon’s most recent declaration and deposition testimony create a potential triable issue of material fact as to whether Mr. Dillon has been injured by the State Defendant’s enforcement of the striped bass regulations.” Doc. 162 at 3. State Defendant did not withdraw its opposition to Plaintiffs’ motion for summary adjudication as to Mr. Dillon’s standing. See id. The matter came on for hearing June 23, 2010, in Courtroom 3(OWW). II. STANDARD OF DECISION Summary judgment is appropriate when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A party moving for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). Where the movant has the burden of proof on an issue at trial, it must “affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007); see also S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir.2003) (noting that a party moving for summary judgment on claim on which it has the burden at trial “must establish beyond controversy every essential element” of the claim) (internal quotation marks omitted). With respect to an issue as to which the non-moving party has the burden of proof, the movant “can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party’s case.” Soremekun, 509 F.3d at 984. When a motion for summary judgment is properly made and supported, the nonmovant cannot defeat the motion by resting upon the allegations or denials of its own pleading, rather the “non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, ‘specific facts showing that there is a genuine issue for trial.’ ” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment.” Id. To defeat a motion for summary judgment, the nonmoving party must show there exists a genuine dispute (or issue) of material fact. A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson, All U.S. at 248, 106 S.Ct. 2505. “[S]ummary judgment will not lie if [a] dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248, 106 S.Ct. 2505. In ruling on a motion for summary judgment, the district court does not make credibility determinations; rather, the “evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255, 106 S.Ct. 2505. III. ANALYSIS A. Section 9 Liability Standard. Resolution of many of the disputes in these motions turns on whether liability under ESA § 9 is attributable to State Defendant’s actions. It is undisputed that the Central Valley spring-run Chinook salmon is listed as a threatened species, 64 Fed. Reg. 50,394-50,415; 70 Fed. Reg. 37,160-37,204, and that the Sacramento River winter-run Chinook salmon is listed as an endangered species, 59 Fed. Reg. 440. ESA § 9 prohibits the “take” of any species listed as endangered. 16 U.S.C. § 1538(a)(1)(B). The Secretary of the Interior, through regulation, has applied the “take” prohibition to species that are listed as threatened. 50 C.F.R. § 17.31(a). “Take” is defined to include “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct.” 16 U.S.C. § 1532(19). “Harm” is defined by regulation to include: an act which actually kills or injures wildlife. Such act may include 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. Under this regulation, a person can “harm” either directly, by actually killing or injuring a protected animal, or by modifying the species’ habitat to the point of significantly impairing the species’ essential behavioral patterns where that impairment results in the actual death or injury of endangered animals. “Direct” harm involves the direct application of force to a member of a protected species, resulting in actual death of or injury to the animal. See Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 694, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995). Habitat modification may also constitute harm “where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” 50 C.F.R. § 17.3 (emphasis added); see also Sweet Home, 515 U.S. at 697, 115 S.Ct. 2407 (upholding 50 C.F.R. § 17.3 and holding that the ESA’s definition of harm “naturally encompasses habitat modification that results in actual injury or death to members of an endangered or threatened species”); Defenders of Wildlife v. Bernal, 204 F.3d, 920, 924-25 (9th Cir.2000) (affirming denial of injunction against construction on property containing potential habitat for a species of pygmy owl and confirming that habitat modification does not constitute harm unless it “actually kills or injures wildlife”); see also Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1065-66 (9th Cir.1996) (harm through habitat modification can be projected into the future only so long as the habitat modification will cause actual killing or injury of members of a protected species). Either form of take by harm (direct harm or harm by habitat modification) may include acts of a third party that indirectly bring about a take by causing another to effect a take. 16 U.S.C. § 1538(g) (making it “unlawful for any person subject to the jurisdiction of the United States to attempt to commit, solicit another to commit, or cause to be committed, any offense defined in this section”). A third party government actor was found liable for indirectly causing take by direct harm in Strahan v. Coxe, 127 F.3d 155, 163 (1st Cir.1997), which concerned a challenge to Massachusetts’ authorization of certain types of fixed fishing gear known to entangle Northern Right whales. 127 F.3d at 158-59. The district court determined that the ESA “applied] to acts by third parties that allow or authorize acts that exact a taking and that, but for the permitting process, could not take place.” Id. at 163. The First Circuit found that the ESA “not only prohibits the acts of those parties that directly exact the taking, but also bans those acts of a third party that bring about the acts exacting a taking.” Id. at 163. Specifically, “a governmental third party pursuant to whose authority an actor directly exacts a taking of an endangered species may be deemed to have violated the provisions of the ESA.” Id.; see also Loggerhead Turtle v. Volusia County, 148 F.3d 1231, 1251-53 (11th Cir.1998) (finding county caused a third party to effect take by harm due to habitat modification when it refused to ban beachfront artificial light sources adversely impacting sea turtles); Animal Prot. Inst. v. Holsten, 541 F.Supp.2d 1073, 1081 (D.Minn.2008) (Minnesota Department of Natural Resources violated section 9 of the ESA by authorizing trapping and snaring that could potentially result in take of the protected Canada Lynx). It is unclear how the claims in this case should be classified. Is predation by striped bass a direct harm indirectly caused by a government action (the enforcement of the striped bass sportfishing regulations)? Or, is the human manipulation by increasing the predator population a form of habitat modification? Strahan expanded the meaning of take to include “not only [ ] the acts of those parties that directly exact the taking, but also bans those acts of a third party that bring about the acts exacting a taking.” 127 F.3d at 163. The prerequisite to a finding of third party liability, however, is a first party act that exacts a taking. A fish cannot “take” another fish under the ESA, because only a “person” can violate the ESA’s take prohibition. See 16 U.S.C. § 1538(a)(1)(B) (“... [I]t is unlawful for any person ... to ... take any [Listed] species within the United States or the territorial sea of the United States”) (emphasis added); § 1538(g) (“It is unlawful for any person subject to the jurisdiction of the United States to attempt to commit, solicit another to commit, or cause to be committed, any offense defined in this section.”); § 1532 (defining the term “person” to means “an individual, corporation, partnership, trust, association, or any other private entity; or any officer, employee, agent, department, or instrumentality of the Federal Government, of any State, municipality, or political subdivision of a State, or of any foreign government; any State, municipality, or political subdivision of a State; or any other entity subject to the jurisdiction of the United States”); cf. Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir.2004) (refusing to grant standing to community of whales, dolphins, and porpoises because the ESA only authorized “persons” to sue; “animals are the protected rather than the protectors”). A fish cannot “take” another fish, because a fish is not a “person,” at least not for purposes of the ESA. Here, the ESA “person” is the CDFG, the State Defendant. Instead, the circumstances of this case must be addressed as a form of harm by habitat modification. This is consistent with cases that have found take where human activities reduce prey populations. Greenpeace Foundation v. Mineta, 122 F.Supp.2d 1123, 1134 (D.Haw.2000) (finding removal of prey may constitute harm by habitat modification). This is a close analogy to the present circumstances, where human activities are alleged to be increasing predator populations. Here, this distinction is important, because, where direct harm and harm by habitat modification appear to differ is in their need for proof of a population-level effect. Take can result from direct harm to a single, individual animal. See, e.g., United States v. Nuesca, 945 F.2d 254 (9th Cir.1991) (affirming criminal convictions under the ESA for the direct take by hunting of a single Hawaiian monk seal and two green sea turtles); Mausolf v. Babbitt, 125 F.3d 661, 668-70 (8th Cir.1997) (upholding agency decision to ban snowmobiling in a National Park based in part on evidence of “several cases” of harassment and harming of gray wolves, explaining that the ESA “prohibits any person, including a governmental agency, from ‘taking’ any individual member of a threatened or endangered species population”); Strahan, 127 F.3d at 165 (refusing to consider “significant efforts” made by state regulatory agency to minimize entanglements of endangered whale species in fixed fishing gear, noting that “a single injury to one whale is a taking under the ESA.”). In contrast, there is some authority suggesting that, in the Ninth Circuit, harm by habitat modification requires proof of a population level effect. For example, in Palila v. Hawaii Dept. of Land and Natural Resources, 852 F.2d 1106, 1108 (9th Cir.1988), a pre-Sweet Home case, the Ninth Circuit affirmed the district court’s construction of the harm regulation to include “habitat destruction that could drive [a species] to extinction.” In Palila, it was undisputed that large numbers of mouflon sheep would significantly damage the Palila’s (an ESA-listed bird) habitat, driving the Palila to extinction. Id. at 1109. It was disputed, however, whether a controlled number of sheep could co-exist with the Palila. Id. After a bench trial, the district court credited those witnesses who maintained the two species could not coexist at any level of sheep population, finding that the state agency’s permitting of sheep in the Palila’s habitat constituted a taking under the ESA. Id. at 1109-1110; see also Greenpeace Foundation, 122 F.Supp.2d at 1134 (denying motion for summary judgment, finding there was a dispute of fact regarding whether reduction in monk seal prey as a result of NMFS’s management of lobster fishing would “doom[ ] the monk seal to extinction”). Palila’s requirement of proof that habitat modification would lead to extinction was re-affirmed in the post-Sweet Home case National Wildlife Federation v. Burlington N. R.R., 23 F.3d 1508, 1513 (9th Cir.1994), and extended to also include habitat degradation where a plaintiff can “show significant impairment of the species’ breeding or feeding habits and prove that the habitat degradation prevents, or possibly, retards, recovery of the species.” In Burlington Northern, a series of grain spills from defendant’s trains in northwestern Montana resulted at least seven grizzly bear fatalities in and around the spills. Id. at 1510. Environmental plaintiffs’ request for a preliminary injunction against defendant’s operations was denied because they failed to show that similar harm in the future was likely. Id. at 1511-13. Specifically, the Ninth Circuit cited evidence that “mortalities in the spill area ‘likely have had little long term overall effect’ ” on the region’s grizzly bear population; the impacts of the corn spill were “of a ‘localized nature’ and could not ‘be characterized as significant’ ”; and “that grizzly bears have not been habituated over a long period of time to the corn spill area, reducing the likelihood that grizzly bears would continue to frequent the area once the food source was removed.” Id. at 1511. The Ninth Circuit’s reasoning in Defenders of Wildlife v. Bernal, 204 F.3d 920 (9th Cir.2000), cited by Plaintiffs, suggests that actual proof that habitat modification would harm a single, individual listed species is sufficient to establish a section 9 violation. Bernal concerned the construction of a school in an area that was potential habitat for the endangered ferruginous pygmy owl. The district court framed the analysis as follows: In this case, there are primarily two material factual questions: 1) Does a pygmy-owl use or occupy any part of the school site? 2) Will the construction and operation of the site result in A § 9 “take” through the “harm” or “harassment” of a pygmy-owl? Id. at 925. After a three-day bench trial, the district court found that the proposed construction project would not “result in the take of a pygmy owl.” Id. at 922. Although there was some evidence that owls used the 30-acre parcel, there was inconsistent evidence regarding the impact of construction on the owls. Id. at 925. Given the ultimate conclusion that harm, even to one owl, had not been proven, the district court’s assumption that harm by habitat modification could be shown by proving harm to an individual animal was not necessary to its decision. Without discussing the district court’s assumption, the Ninth Circuit affirmed. Id. at 930. The balance of the authority suggests that a population level effect is necessary for harm resulting from habitat modification to be considered a take. Arguendo, imposing such a requirement in all cases of alleged harm by habitat modification might cause a species’ habitat, and its continued survival and/or chances of recovery, to be destroyed in a piecemeal fashion. This is not a case in which such piecemeal destruction is a threat. This case involves the entire striped bass population in the Delta and its alleged predatory impact on the entire populations of listed winter and spring-run Chinook salmon. Finding that an actionable take occurred whenever an action that disturbs the balance of an ecosystem poses a reasonably certain threat of imminent harm to a single member of the listed species would effectively eviscerate Sweet Home’s requirements of proximate causation and foreseeability, imposed upon cases concerning harm from habitat modification. See 515 U.S. at 700 n. 13, 115 S.Ct. 2407 (“[T]he regulation [defining harm] merely implements the statute, and it is therefore subject to the statute’s ‘knowingly violates’ language and ordinary requirements of proximate causation and foreseeability.”). This is particularly the case where the intervening actor is not a human, and therefore not within the complete control of the human actors involved, including the Court. B. Evidentiary Objections. 1. State Defendants’ Objection to the Electronic Signatures on the Declarations of Dee Dillon. In a footnote to its reply brief, State Defendant objects to the electronic signatures on Mr. Dillon’s declaration in support of Plaintiffs’ motion for partial summary judgment, Doc. 114-4, and in opposition to State Defendant’s motion for summary judgment, Doc. 119-2. State Defendant asserts that Mr. Dillon’s electronic signature fails to comply with the requirements of Local Rule 131(f), which provides Non-Attorney’s Electronic Signature. Documents that are required to be signed by a person who is not the attorney of record in a particular action (verified pleadings, affidavits, papers authorized to be filed electronically by persons in pro per, etc.), may be submitted in electronic format bearing a “/s/” and the person’s name on the signature line along with a statement that counsel has a signed original, e.g., “/s/ John Doe (original signature retained by attorney Mary Roe).” It is counsel’s duty to maintain this original signature for one year after the exhaustion of all appeals. This procedure may also be followed when a hybrid electronic/paper document is filed, i.e., the conventionally served document may also contain an annotated signature in lieu of the original. However, Local Rule 131(g) requires any party disputing the authenticity of an electronically-filed document with a non-attorney signature to “file an objection and request that the document be stricken within twenty-one (21) days of receiving the Notice of Electronic Filing or a copy of the document, whichever first occurs, unless good cause exists for a later contest of the signature by a person exercising due diligence.” Here, the Declarations in question were filed electronically on February 22, 2010 and March 30, 2010, respectively. State Defendant’s reply brief objecting to the electronic signature was not filed until April 30, 2010, sixty seven (67) and thirty one (31) days after receiving notices of the electronic filing, denying Plaintiffs the opportunity to correct the signature. State Defendant has presented no evidence suggesting good cause existed for a later contest of the signatures. State Defendant’s objection to these declarations is OVERRULED. 2. Effect of Rule 30(b)(6) Designee’s Testimony. Plaintiffs rely extensively on a series of purported “admissions” made by State Defendant’s Rule 30(b)(6) designee Marty Gingras. Plaintiffs maintain that any such admissions are “absolutely binding.” State Defendant argues that Mr. Gingras’ admissions as its designee under Federal Rule of Civil Procedure 30(b)(6) are merely admissible, and not binding. Doc. 123 at 23-24. The Ninth Circuit has yet to decide this issue. There is a marked divide in the caselaw. Some courts suggest that an agency is bound by the testimony of its Rule 30(b)(6) designee. Other courts hold that “testimony given at a Rule 30(b)(6) deposition is evidence which, like any other deposition testimony, can be contradicted and used for impeachment purposes,” and that such testimony does not “bind” the designating entity “in the sense of [a] judicial admission.” A.I. Credit Corp. v. Legion Ins. Co., 265 F.3d 630, 637 (7th Cir.2001). This treats the testimony as that of any witness, making it subject to correction and/or impeachment. Other courts adopt a middle ground and hold that a party cannot rebut the testimony of its Rule 30(b)(6) witness when, as here, the opposing party has relied on the Rule 30(b)(6) testimony, and there is no adequate explanation for the rebuttal. It is not necessary to resolve the competing lines of authority on the binding effect of testimony of a “person most knowledgeable” deponent, because State Defendants do not seek to withdraw any of these “admissions,” all of which are generic statements Mr. Gingras agreed with during his deposition. Rather, State Defendants seek to qualify and/or explain those statements. For example, Plaintiffs assert that Mr. Gingras has admitted that “eliminating the size and catch limits for striped bass would reduce the striped bass population.” Pltf s Statement of Undisputed Facts (“PSUF”), Doc. 114-2, 2(A). State Defendants simply maintain that this generic statement does not accurately reflect Mr. Gingras’ own testimony, and that Mr. Gingras’ qualifications to his testimony are supported by other evidence in the record. Nothing in Rule 30(b)(6) or the cited caselaw requires the Court to blindly accept these generic statements out of context. The Gingras testimony may be amplified or explained, so long as a material change or retraction is not made without a reasonable basis. 3. Plaintiffs’ Objections to State Defendant’s Statement of Undisputed Facts in Support of State Defendant’s Motion for Summary Judgment. (1) Objections to Background Facts. Plaintiffs object to State Defendant’s inclusion of certain background facts in its Statement of Undisputed Fact. For example, Plaintiffs object to the following statement as irrelevant: “The water district plaintiffs base their claim of injury on the allegation that DFG’s enforcement of the regulations have harmed ESA-listed species, causing federal fishery agencies to reduce State Water Project (SWP) water deliveries to them.” SDSUF # 1. This objection is OVERRULED, as this fact provides relevant background information and is admissible for that purpose. The conclusions that such reductions are caused by the regulations is disputed. The same conclusion applies to the same objection as to SDSUF Numbers 4 and 5. (2) Objections to Facts Related to Mr. Dillon’s Use and Enjoyment of the Delta. Plaintiffs also object to certain statements describing the extent to which Mr. Dillon has used and enjoyed the Delta. For example, they object to the following statement as “immaterial”: “Mr. Dillon stated that he has photographed salmon two or three times in the Delta.” SDSUF # 10. Plaintiffs insist that “the relevant material fact is not how many salmon Mr. Dillon has photographed in the Delta; instead, it is whether Mr. Dillon has attempted to photograph salmon in the Delta.” Doc. 121 at 8. This fact is not wholly irrelevant to a determination of whether Mr. Dillon has ever and/or continues to photograph salmon in the Delta. The weight to be given this fact is a separate question. The objection is OVERRULED. The same reasoning and conclusion apply to Plaintiffs’ objections to SDSUF Nos. 11, 12, 15, 16, 23, 24, 25, 27, 28, 29, 35, 36, 37, 38, 39, 40, 41, 42, 45, 46, 47, and 48, all of which present facts related to Mr. Dillon’s use and enjoyment of the Delta and its wildlife, bearing on his standing. These facts are at least marginally relevant. The objections are OVERRULED. (3) Facts Related to Mr. Dillon’s Recruitment by Plaintiff Coalition for a Sustainable Delta. Plaintiffs object to the following facts as immaterial to the present motion: • SDSUF # 17: Mr. Dillon was recruited by plaintiff Coalition for a Sustainable Delta (Coalition) about two years ago, approximately the same time the Coalition was formed, after being contacted by the Coalition’s counsel, Paul Weiland. • SDSUF # 18: The purpose for contacting Mr. Dillon was to enlist him as a plaintiff in this litigation, as evidenced by his understanding that his role in the Coalition would involve recounting his fishing and recreation history, ultimately to a judge. State Defendants have presented no authority suggesting that how Mr. Dillon came to be associated with the Coalition is relevant to Mr. Dillon’s own standing as an individual plaintiff, who has bona fide protectable environmental interests. The relevance objection is SUSTAINED. 4. State Defendant’s Objections to Evidence. a. Deposition Testimony Of Marty Gingras. State Defendant has objected to all of the statements made by its own Federal Rule of Civil Procedure 30(b)(6) designee, Marty Gingras. • “Eliminating the size and catch limits for striped bass would reduce the striped bass population. ” Pis. ’ Statement of Undisputed Facts (“SUF”) 2(A). Defendant objects to the inclusion of Mr. Gingras’ admission that “eliminating the size and catch limits for striped bass would reduce the striped bass population” on the basis that the admission is irrelevant, that Plaintiffs have misstated the testimony, that the admission is not binding, and that “Mr. Gingras did not testify as to the magnitude of the alleged effect, and did not testify that it was substantial.” Doc. 123-2 at 6:14-18. Defendant’s relevancy objection is misplaced. Plaintiffs have alleged that the striped bass sport-fishing regulations artificially maintain and enhance the size of the striped bass population in the Delta, increasing striped bass predation on Listed Salmon. There is a serious dispute over the applicable legal standard under Section 9. State Defendant maintains that to violate section 9, the government regulation must have a significant impact on the species’ chances of survival and recovery. Even if, arguendo, State Defendant’s articulation of the legal standard is correct, Mr. Gingras’ assertion that eliminating the catch limits for striped bass would reduce the striped bass population is relevant. It tends to establish a fact in dispute relative to causation. This objection goes to the weight of this generic evidence, not its admissibility. The objection is OVERRULED. State Defendant is not precluded from presenting additional evidence on this subject. The same conclusion applies to the State’s objections to the admission of this statement on the basis that “Mr. Gingras did not testify as to the magnitude of the alleged effect, and did not testify that it was substantial.” The absence of testimony about the magnitude of the effect goes to its weight, not admissibility. Defendant’s next objection that Plaintiffs have misstated Mr. Gingras’ testimony is unfounded. He testified: Q. ... [A]s you sit here today, wouldn’t you agree that eliminating the striped bass regulations that limit the catch and the size of striped bass that anglers in the Delta can take, that getting rid of those regulations would have the effect of reducing in some amount the striped bass the striped bass population? A. I agree that that’s the case. Gingras Depo. at 612:1-9. The testimony is unambiguous. State Defendant next argues that the deposition testimony of Mr. Gingras, the Rule 30(b)(6) designee for Defendant, is not binding. This objection is addressed above. State Defendant may offer explanatory evidence. • “Estimating striped bass predation on winter-run and spring-run Chinook salmon averages between 5% and 85%.” PSUF 3(A). Defendant objects to this statement on the ground that Mr. Gingras was “speculating” and “guessing” as to the predation levels. Doc. 123-2 at 12:13-17. Mr. Gingras did state elsewhere that providing a specific percentage would be speculation, Gingras Depo. 388:23-389:2, 496:21-23, 533:15-21, 605:12-22. Nevertheless, after specific instruction from his attorney not to answer the question if he had to speculate, Gingras testified to a specific range: MS. WORDHAM: If you have to speculate, then you have no answer to give him. You just don’t know. MR. WEINSTOCK: If you’re just throwing darts at the board and your opinion is no better than mine or just chance, you can say that. But if you think you have an opinion that’s of some value, then we want you to give it to us and we’ll take it for what it’s worth. THE WITNESS: Sure. I think it’s plausible that — and this is more or less a conclusion based on a number of studies and understanding the ups and downs of things — that for both winter-run and spring-run, the range would be maybe 5 to 25 percent. BY MR. WEINSTOCK: Q. Okay. 5 at the low end and 25 at the high end? A. Correct. Gingras Depo. 496:24-498:21. Mr. Gingras was clearly instructed not to speculate, and he answered the question with an estimate based on his experience and study, by defining a range of percentage effects. This testimony is admissible. Other statements elsewhere in the record providing predation estimates go to the weight of his proffered predation figures, not their admissibility. The objection is OVERRULED. • “[SJtriped bass predation is one of many factors contributing to the decline of the listed species. ” SUF 3(B). • “[PJredation by striped bass increases mortality on those listed species. ” SUF 3(C). The objections to these two statements are substantially the same as made to the statement in PSUF 2A. The same reasoning applies. The objections are OVERRULED. • “Striped bass predation ‘can influence viability of Central Valley Salmonoids.” SUF3(D). State Defendant objects to the inclusion of Mr. Gingras’ admission that striped bass predation “can influence viability of Central Valley Salmonoids” on the basis that Mr. Gingras testified that quantifying such effect would be speculation. Doc. 123-2 at 12:20-21. But, Mr. Gingras’ was not asked to quantify the effect; he was only asked to confirm whether there was an “influence”: Q. Okay. Let’s look at paragraph two of your email. At the end of paragraph two you state: “NMFS recently published a report on a model that shows predation by striped bass can influence viability of Central Valley salmonids, but that is no surprise.” Q. ... And you say that the conclusion that striped bass can influence the viability of Central Valley salmonids, you say that that is no surprise. And why do you say that? A. I don’t recall why I said that. Q. Do you agree with that today? A. Yes. Gingras Depo. at 643:5-644:2. State Defendant’s objection is OVERRULED. • “[AJgreeing with findings by Linley & Mohr regarding the effects of striped bass predation on winter-run chinook salmon.” SUF 3(F). Defendant objects to the statement that Mr. Gingras agreed “with findings by Linley & Mohr regarding the effects of striped bass predation on winter-run Chinook salmon,” arguing that Mr. Gingras did not “agree,” but only that he found the statements by Linley & Mohr plausible. Doc. 123-2 at 13:1-4. This is a distinction without a difference, as Plaintiffs only relied on Mr. Gingras’ statement to support its assertion that the conclusion of the Lindley & Mohr paper is not in dispute. This statement is admissible. The objection is OVERRULED. • “I do agree that reduction in striped bass abundance ... would reduce total juvenile salmon predation and mortality, with a corresponding increase in juvenile salmon survival.” SUFJp(A). State Defendant objects to the admission of this statement on the ground that Mr. Gingras stated he would be “speculating” when offering figures for striped bass predation and because Mr. Gingras did not testify as to the magnitude of any effect. Doc. 123-2 at 19:7-16, 32:27. This objection is OVERRULED because this statement does not offer any figures for striped bass predation nor does it address the magnitude of any predation effect. This is an expert opinion form the State’s qualified witness. • “[AJdmitting that striped bass predation is one of the factors contributing to the decline of the winter-run and spring-run Chinook salmon.” SUF 7(B). State Defendant objects to the inclusion of this admission by Mr. Gingras’ on the basis that Mr. Gingras stated it was one of “many” factors contributing to the decline, and that while it was his personal opinion, he did not know if it was the consensus view, but his opinion is stated with reasonable certainty as a scientist. Doc. 123-2 at 24:25-25:2. These concerns go to the weight of the evidence not its admissibility. The objection is OVERRULED. • “[AJdmitting ‘predation by striped bass increases mortality on those listed species.” SUF 7(C). Defendant objects to this admission by Mr. Gingras on the basis that the statement is irrelevant because the reference discusses mortality and does not address decline, suggesting that the two concepts are not equivalent. (Def.’s Objections at 25:3.) These concerns go to the weight of the evidence not its admissibility. The objection is OVERRULED. • “[AJdmitting Striped bass predation ‘can influence viability of Central Valley Salmonoids. ’ ” SUF 7(D). Defendant objects to the inclusion of this admission by Mr. Gingras’ on the basis that Mr. Gingras was responding to a “hypothetical with a hypothetical,” but State Defendants fail to point to the hypothetical to which Mr. Gingras was originally responding. His answer was not hypothetical. Mr. Gingras confirmed this assertion during his deposition: Q. Okay. Let’s look at paragraph two of your email. At the end of paragraph two you state: “NMFS recently published a report on a model that shows predation by striped bass can influence viability of Central Valley salmonids, but that is no surprise.” So is this sentence referring to the article by Steve Lindley? I can’t remember if there was a co-author. Why don’t you tell us what report you’re referring to. A. I have to tell you, I don’t remember this message at all. But from what’s there, I would conclude that I was talking about Lindley and Mohr 2003. Q. Okay. And we’ve seen that already, and we’ve talked about it. And you say that the conclusion that striped bass can influence the viability of Central Valley salmonids, you say that that is no surprise. And why do you say that? A. I don’t recall why I said that. Q. Do you agree with that today? A. Yes. Q. And why do you think it is no surprise? A. Because striped bass are abundant and piscivorous, and the nature of their model was such that it could forecast an impact. Q. It did forecast an impact? A. It did forecast an impact. Q. And you found that report to be persuasive and reliable? A. I was not able to determine whether it was reliable. It was certainly persuasive. As I mentioned, I got in touch with Steve Lindley to try to discuss the reliability of the report and he didn’t respond. Gingras Depo. 643:5-644:15. State Defendant correctly point out that Mr. Gingras’ testimony states that striped bass predation “can” influence the viability of the listed species, not that it “does.” Doc. 123-2 at 25:4-7. However, this objection goes to the weight of the evidence, not its admissibility. The objection is OVERRULED. • “[AJdmitting that eliminating the size and two fish bag limit ‘would reduce the predation’ on the winter-run chi-nook salmon and spring-run chinook salmon. ’ ” SUF 8(A). • “[AJdmitting eliminating the striped bass catch and size limits would reduce the striped bass population.” SUF 8(B). Defendant objects to these statements by Mr. Gingras’ on the basis that Mr. Gingras declined to estimate a magnitude for any such effect. Doc. 123-2 at 27:4-8. These objections go to the weight of this generic evidence, not its admissibility. The objections are OVERRULED. State Defendant may present explanatory, more specific evidence. • “[AJdmitting that deregulation would benefit the salmon species.” SUF 9(A), 10(B). • “[AJdmitting that ‘odds are’ that deregulation is likely to help the salmon recovery.’” SUF 9(B), 10(C). State Defendant first objects to these statements on the basis that Mr. Gingras stated he disagreed that the magnitude of any such effect would be substantial. Doc. 123-2 at 29:12-16 This objection goes solely to the weight of the evidence, not its admissibility. The objection is OVERRULED. State Defendant also objects that Mr. Gingras stated he did not know how effective it would be to deregulate striped bass sportfishing. Doc. 123-2 at 32:21-26. Again, this objection goes to weight, not admissibility. While Mr. Gingras could not provide a specific percentage or numerical value of the positive impact resulting from deregulation, he confirmed that deregulation would benefit the Listed Salmon. Gingras Depo. at 474:1-5. These objections are OVERRULED. • “[AJdmitting that modifying the striped bass sport-fishing regulations would have some ‘beneficial effect. ’ ” SUF 9(D), 10(E). State Defendant objects to this statement on the ground that Mr. Gingras did not testify as to the magnitude of any effect. Doc. 123-2 at 29:27, 33:1-2. This objection, which goes to weight, not admissibility, is OVERRULED. • “[AJdmitting that eliminating the striped bass sportfishing regulations would contribute to the recovery of the winter-run and spring-run salmon, assuming that deregulation would reduce striped bass abundance.” SUF 9(E), 10(F). Defendant objects to the inclusion of statement on the grounds that Mr. Gingras stated he would be speculating when offering figures for striped bass predation and that he did not testify as to the magnitude of any effect. Doc. 123-2 at 30:1, 33:3. As discussed above, these objections go to weight not admissibility and are OVERRULED. • “[AJgreeing with Dr. Hanson’s conclusion that a reduction in the striped bass population would contribute ‘to a reduction in the risk of extinction of winter-run salmon. ’ ” SUF 10(A). This statement is offered to support the factual assertion that “enjoining the enforcement of the striped bass sportfishing regulations would likely benefit [winter-run] and [] spring-run [] by reducing their risk of extinction.” PSUF # 10(A). Defendant objects that PSUF 10A, a characterization of Mr. Gingras’ testimony, does not support the general assertion in PSUF 10, because Mr. Gingras was responding to questions about Dr. Hanson’s report, which assumed a hypothetical reduction in striped bass population, rather than injunction of the striped bass sport-fishing regulations. Doc. 123-2 at 32:17-20. This objection goes to the weight of PSUF 10A, not its admissibility. The objection is OVERRULED. In the final analysis, the extent of predation of protected salmonids by striped bass and the materiality of the benefit of a reduction of striped bass population is what is to be decided. Even without magnitude, Mr. Gingras’ testimony directly addresses these issues. b. Deposition Testimony of Matthew Nobriga. Defendant has also objected to statements characterizing the testimony of its designated expert, Matthew Nobriga. • “[EJstimating that striped bass predation on winter-run and spring-run chinook salmon averages between 6% and 50%. ” SUF 3(G). Defendant objects to the inclusion of Mr. Nobriga’s predation estimates on the basis that Mr. Nobriga testified that making such an estimate would be “silly.” (Def.’s Objections at 13:5-7.) However, Mr. Nobriga did offer his own predation estimates: Q. Okay. So I think you’ve given us a range for the salmonids, call it a ballpark of reasonableness — at least that’s what I’ll call it, you can call it something else — for these estimates of somewhere roughly between 6 or 10 percent at the low end and around 50 percent at the high end for the winter-run and spring-run salmon. Is that right? A. Yes. Q. And for the steelhead, I take it you feel the data is just so insufficient that you don’t even have the beginnings of an opinion on the subject? A. Yes. Q. And for delta smelt, what’s the range you could feel comfortable with for the predation estimates, upper and lower? A. I don’t know. From a scientific perspective, this is silly to me. I mean, it’s just pulling numbers out of the air. Q. Well, I assume that this is something that you have studied and discussed at length. So your opinion is worth certainly more than mine, so I’m asking for your opinion. A. I’m trying to remember papers that I’ve seen where a predation estimate on a pelagic fish population has been published. So a low-end estimate that’s reasonable is probably 20 percent .... Nobriga Depo. at 119:1-120:2. Any statements Mr. Nobriga may have made elsewhere regarding the speculative nature of any predation estimates go to the weight of this evidence, not its admissibility. He has expressed his opinion by giving an estimate. The objection is OVERRULED. • “[AJgreeing that Linley & Mohr used a sound scientific method when estimating striped bass predation on winter-run chinook salmon averaged 9%. ” SUF 3(H). Defendant objects to this statement on the basis that Mr. Nobriga indicated elsewhere he would be speculating as to whether the estimate is high or low, and that he disagreed with their findings regarding survival and extinction possibilities. Doc. 123-2 at 13:8-10. This statement does not offer Mr. Nobriga’s own predation estimates. It merely confirms that Linley & Mohr’s study used a sound scientific method in reaching their conclusions. See Nobriga Depo. at 110:25-111:2. The objection is OVERRULED, but this does not preclude State Defendant from presenting contrary predation estimates. • “[AJgreeing with Dr. Hanson’s conclusion that ‘a reduction in striped bass abundance would not be expected to substantially increase other salmon predators in the River, but rather would reduce total juvenile salmon predation and mortality, with a corresponding increase in juvenile salmon survival. ’ ” SUF 9(F), 10(G). Defendant objects to this admission by Mr. Nobriga on the grounds that Mr. Nobriga’s qualified his agreement with Dr. Hanson in various ways. Doc. 123-2 at 19:23-20:1, 30:2, 33:4-5. These qualifications do not completely undermine Mr. Nobriga’s agreement with Dr. Hanson’s conclusion: Q. Okay. I just wanted to find out if you agree or disagree with that [paragraph reflecting Dr. Hanson’s conclusion]. A. I agree with it. Nobriga Depo. 259:24-260:6. Mr. Nobriga’s qualifications go to the weight not the admissibility of his testimony. The objection is OVERRULED. • “I would agree that less striped bass would create some increase in salmon.’” SUF 9(G), 10(H). Defendant similarly objects to this characterization of Mr. Nobriga’s testimony as “misstated” because Mr. Nobriga testified that he did not know whether the relationship would be proportionate. Doc. 123-2 at 20:2-3, 30:3, 33:6-7. This objection, which goes to weight not admissibility, is OVERRULED. c. Objections to Documents. State Defendant has also objected to a number of documents. • Department Of Fish And Game Memorandum Authored By Stevens and Delisle: SUF 2(B). State Defendant objects on several grounds to the admission of a CDFG memo authored by Don Stevens and Glen Delisle, two key CDFG biologists. State Defendants objection on relevancy grounds is unfounded, as this is a CDFG document analyzing the impact of eliminating the striped bass sport-fishing regulations is clearly relevant to this case. State Defendants also object that the document “does not reflect the official position of the State Defendant.” This objection, which is unsupported by any caselaw, has no bearing on document’s admissibility. State Defendant’s objection that the document is unauthenticated is also unfounded, because, as a CDFG document produced by Defendant in response to a discovery request, the document has been authenticated by Defendant. See Orr v. Bank of Am., 285 F.3d 764, 777 n. 20 (9th Cir.2002) (confirming that documents produced in response to discovery are deemed authentic when offered by the party-opponent). Finally, State Defendant asserts “CDFG employees testified they disagreed with any statement in the memo as to magnitude.” Doc. 123-2 at 6:20-23. But, the existence of any such contrary testimony goes to the weight of this evidence, not its admissibility. The objections to this document are OVERRULED. • Department Of Fish And Game Proposed changes to marine sport fishing regulations for the 2006 triennial process: SUF 2(C). Defendant has objected that the document is not relevant to this litigation on the grounds that the increase in striped bass catches associated with changed sportfishing regulations would not necessarily equate to a reduced striped bass population. This objection goes to weight, not admissibility. Defendant has also objected that the document lacks foundation. Although it is not clear, it appears that State Defendants advance the same authentication of 94 objection rejected above. The objections to this document are OVERRULED. • Draft Conservation Plan For The California Department Of Fish And Game Striped Bass Management Program: SUF 2(D), U(K). Defendant’s relevance objection is unfounded, because this is a CDFG document analyzing the impact of eliminating the striped bass sport-fishing regulations, a subject that is relevant to this case. State Defendant also objects to Plaintiffs’ reliance on a statement in the conservation plan that “it is reasonable to assume that predation on winter-run chinook salmon ... would decrease roughly in proportion to whatever decline occurred in striped bass abundance due to regulation changes” because the report allegedly lacks foundation and does not offer support for this statement. Doc. 123-2 at 20:16-17. The foundational objection has been rejected. As to the objection that the document lacks internal support for this assertion, this goes to weight not admissibility. The objections to this document are OVERRULED. • Donald Koch’s Supplemental Responses To Plaintiffs’ First Set Of Requests For Admissions No. 2: SUF 2(E). Defendant also objects to the inclusion of Donald Koch’s own interrogatory response on the basis of relevancy, claiming that the response does not contain an estimate of magnitude with respect to the increase in striped bass as a result of the sport-fishing regulations. Doc. 123-2 at 7:5. This objection is without merit, as this general response by CDFG’s Director analyzing the impact of the striped bass sport-fishing regulations is relevant to this case. That the interrogatory response does not estimate the magnitude of the impact on the striped bass population goes to its weight, not its admissibility. The objections to this document are OVERRULED. • E-Mail From Marty Gingras To Geoff Malloway: SUF 2(1). Defendant also objects to the inclusion of Mr. Gingras’ statement that eliminating the striped bass regulations “would reduce” the population on the basis that the e-mail also notes “changes in Delta habitat” as “the fundamental problem for native fish species.” Doc. 123-2 at 7:15-16. The fact that the email identifies an alternative source of mortality as the “fundamental problem” goes to the weight of the statement, not its admissibility. The objections to this document are OVERRULED. State Defendant may present the context within which the statement is made. • Biological Assessment For The Department Of Fish And Game Striped Bass Management Program: SUF 2(K), i(I), k(J). Defendant objects to Plaintiffs’ reliance on the statement by State Defendant in its own Biological Assessment that the sport-fishing regulations maintain striped bass abundance at a greater level than if fishing were unregulated, on the ground that the admission is irrelevant since the assessment gives no estimate of magnitude. Doc. 123-2 at 7:20-21. This objection, which goes to weight, not admissibility, is OVERRULED. The magnitude may be relevant to the ultimate outcome of Plaintiffs’ claims, and State Defendants may present evidence that clarifies its own general statements about the effect of striped bass abundance. State Defendant raises the same objection to Plaintiffs’ reliance on statements in the Biological Assessment that: (1) the result of maintaining striped bass abundance at a greater level “is greater predation on the species of concern,” arguing that the statement is irrelevant because the environmental document does not provide any estimate of magnitude, Doc. 123-2 at 20:14; and (2) that eliminating striped bass regulations “would further depress the striped bass population and reduce predation on winter-run chinook salmon,” Doc. 123-2 at 20:15. The result is the same. These objections, which go to weight not admissibility, are OVERRULED. • Nobriga & Feyrer Shallow-Water Piscivore-Prey Dynamics In The Delta: SUF 3(J), 7(H). Defendant also objects to Mr. Nobriga’s statement, in a peer reviewed scientific article, that “striped bass likely remains the most significant predator of Chinook salmon.” State Defendants argue that the statement is hearsay and lacks foundation. But, the statement was included in a report drafted by State Defendant’s expert, identified and relied on by the Defendant’s expert in reaching his opinions, see Doc. 124, Exh. A, October 1, 2009 Report by Matthew L. Nobriga (“Nobriga Report”), and was produced by Defendant in response to discovery. Therefore, Defendant’s foundation and hearsay objections are meritless. See Orr v. Bank of Am., 285 F.3d at 777 n. 20; Fed.R.Evid. 803(18), 807. State Defendants also argue that the statement is irrelevant because even if the striped bass is the “most significant predator of Chinook salmon, this does not mean that: (1) they are a significant predator; (2) predation is a significant cause of salmon mortality; or (3) eliminating striped bass will reduce salmon mortality.” Doc. 123-2 at 13:13-18. This objection goes to the weight, not the relevance of the statement, which provides some support for Plaintiffs’ theory that striped bass prey on Chinook salmon. State Defendant further objects on the basis of relevancy because the report only discusses striped bass as a predator and does not discuss decline of the species overall. Doc. 123-2 at 25:13-14. This objection goes to weight, not relevance, as there is clear relevance to evidence that the striped bass prey on the Listed Species. • Lindley & Mohr Modeling The Effect Of Striped Bass Report: SUF S(K), 7(1), 10(E). Defendant also objects to Plaintiffs’ reliance on a scientific, peer-reviewed article that concludes that “the current striped bass population of roughly 1 x 10 A 6 adults consumes about 9% of winter-run Chinook salmon outmigrants,” asserting that the statement is hearsay, lacks foundation, and that Defendant’s expert’s report disputes this modeling. Doc. 123-2 at 13:19-14:3, 33:10. The foundation objection is without merit because at least one of Defendant’s experts discusses this document at length. See Doc. 124, Exh. A, Nobriga Report. Because experts may rely on hearsay, that objection is also without merit. The objection that the report is disputed by Defendant’s expert goes to weight, not admissibility. The same applies to State Defendant’s objection that the report is irrelevant because it only discusses striped bass predation as a “risk factor” and does not discuss decline of the population overall. Doc. 123-2 at 25:15-16. This goes to weight, not relevance. The objections are OVERRULED. • National Marine Fisheries Service Public Draft Recovery Plan: SUF 7(F), 7(G). State Defendant objects to Plaintiffs’ reliance on a report prepared by the National Marine Fisheries Service (“NMFS”), arguing that the report’s statement that “predation of Chinook salmon and steel-head from introduced species such as striped bass and black bass [is an important stressor]” is hearsay and irrelevant because it fails to discuss decline of the species overall. Doc. 123-2 at 25:9-10. The relevancy objection is OVERRULED, as it goes to the weight, not admissibility of this document. The hearsay objection is overcome by an expert’s right to rely on hearsay, as well as by Federal Rule of Evidence 803(8), which applies to “[r]ecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report....” The Recovery Plan, which is a policy document, describes “matters observed pursuant to a duty imposed by law,” the evaluation of the status of listed species under the jurisdiction of NMFS. Documents such as the Recovery Plan are also routinely the subject of judicial notice under Federal Rule of Evidence 201. The same analysis applies to State Defendant’s objections to a statement in the Recovery Plan that calls for implementation of “programs and measures designed to control non-native predatory fish ... including harvest management techniques.” The analysis is relevant to recovery of the species and the claim that the statement fails to support the material fact at issue, Doc. 123-2 at 25:9-10, 30:4-5 and 33:11, goes only to the weight of the opinion. State Defendant’s objection to Plaintiffs’ reliance on the NMFS Recovery Plan for the truth of the matters asserted therein is OVERRULED. 5. Central Delta’s Objections to Plaintiffs’ Statement of Undisputed Material Facts. Central Delta’s objections to Plaintiffs’ Statement of Undisputed Material Facts incorporate the arguments made by the State Defendants. See Doc. 125-2. Plaintiffs’ argue that Central Delta’s objections should be stricken on the grounds that they violate the May 28, 2008, 2008 WL 2237038, Order strictly limiting Central Delta’s intervention in this case to “issues about which they can provide unique information and/or arguments.” Doc. 32 at 11. Here, the only unique issue Central Delta expressed any intention to address is the effect of the CVPIA on State Defendant’s liability. Central Delta’s objections have nothing to do with their CVPIA argument. For this reason and because the objections are cumulative of the State Defendant’s objections, Central Delta’s objections are not considered. They add nothing and have been decided by the rulings on the State Defendant’s objections. 6. Plaintiffs’ Objections to the Declaration of Robert Souza. In support of its motion for summary judgment, Central Delta offers the Declaration of Robert Souza, who opines about the causes of harm to the Listed Species. Mr. Souza claims no expertise that qualifies him to opine on these subjects. Nevertheless, he opines, based on his years of fishing the Delta, that the general decline in delta smelt “is not due to striped bass predation, but instead is attributable to excessive export pumping from the Delta,” Doc. 125-4 at ¶ 9, and that the “construction and excessive operation of the massive projects to divert water in the south Delta for agriculture and other human uses have had a tremendously negative impact on striped bass, [the delta smelt], and other fish in the Delta.” Id. Plaintiff objects that Mr. Souza’s Declaration is inadmissible as improper lay opinion. Under Federal Rules of Evidence 701, lay opinions cannot be “based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” The purpose of this rule is to prevent a party from offering an expert opinion “in lay witness clothing,” and thereby evading Federal Rules of Evidence 702’s requirements and the corresponding disclosure requirements under Rule 26. See United States v. Conn., 297 F.3d 548, 553 (7th Cir.2002). Mr. Souza’s opinions regarding the cause of the decline in delta smelt and the impacts of water diversion from the Delta are just that, as they require scientific, technical, or specialized knowledge that exceed the scope of common experience. E.g., Certain Underwriters at Lloyd’s, London v. Sinkovich, 232 F.3d 200, 204-06 (4th Cir.2000) (error to allow lay witness to answer questions on matters exceeding scope of common experience). Mr. Souza’s declaration is STRICKEN. 7.Requests for Judicial Notice. Central Delta requests that judicial notice be taken of 10 documents that are public records. Doc. 125-3. Plaintiffs request that judicial notice be taken of a U.S. Fish and Wildlife Service (“FWS”) web-page and a portion of a March 3, 2010 California Fish and Game Commission (“CFGC”) meeting, submitted on DVD. Doc. 145. All of the documents offered by Central Delta, along with the FWS web page and the DVD depicting the CFGC meeting, are subject to judicial notice under Federal Rule of Evidence 201 to prove their existence and content, but not for the truth of the matters asserted therein. This means that factual information asserted in these document or the meeting cannot be used to create or resolve disputed issues of material fact. C. Standing of Dee Dillon. 1. General Legal Standard. Standing is a judicially created doctrine that is an essential part of the case-or-controversy requirement of Article III. Pritikin v. Dept. of Energy, 254 F.3d 791, 796 (9th Cir.2001) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). “To satisfy the Article III case or controversy requirement, a litigant must have suffered some actual injury that can be redressed by a favorable judicial decision.” Iron Arrow Honor Soc. v. Heckler, 464 U.S. 67, 70, 104 S.Ct. 373, 78 L.Ed.2d 58 (1983). “In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). To have standing, a plaintiff must show three elements. First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130 (internal citations and quotations omitted). The Supreme Court has described a plaintiffs burden of proving standing at various stages of a case as follows: Since [the standing elements] are not mere pleading requirements but rather an indispensable part o