Hoopa Valley Tribe v. National Marine Fisheries Service (230 F. Supp. 3d 1106, 2017)

ORDER RE MOTIONS FOR SUMMARY JUDGMENT, MOTIONS TO STRIKE, AND MOTION TO DISMISS

WILLIAM H. ORRICK, United States District Judge

INTRODUCTION

This order addresses parallel motions brought in two related cases, Yurok Tribe v. Bureau of Reclamation, No. 16-cv-6863, and Hoopa Valley Tribe v. Bureau of Reclamation, No. 16-CV-4294. The plaintiffs in these two cases are tribes and fishin'g associations, seeking to protect Southern California Northern California Coast Coho salmon in the Klamath River from negative impacts of the Klamath River Project. In both cases plaintiffs have moved for summary judgment on their first claim against the federal defendants, asserting that the defendants violated 50 C.F.R 402.16, an implementing regulation of the Endangered Species Act (“ESA”), by failing to reinitiate formal consultation following two years of record rates of disease among Coho salmon in the Klamath River. Plaintiffs seek a declaratory judgment that the federal defendants have violated the ESA and an injunction putting protective water flows in place to reduce disease rates while the federal defendants complete the formal consultation process.

The federal defendants and intervenor defendants oppose the motions. They have also filed motions to limit review to the Administrative Record. Yurok Dkt. No. 42; Yurok Dkt. No. 43. In addition, before the plaintiffs filed their motions for summary judgment, and before the Yurok plaintiffs filed their case, the federal defendants moved to dismiss, or in the alternative to stay, the claims brought by Hoopa Valley. Hoopa Dkt. No. 33. This motion to dismiss has not yet been addressed and remains ripe.

With regard to the motion to dismiss against Hoopa Valley, I conclude that Claim III, unlawful taking of a listed species, is not cognizable against the National Marine Fisheries Service (“NMFS”) because NMFS does not participate in running the Klamath Project and so is not responsible for any taking. The remaining claims are cognizable, are not moot, and should not be stayed. The motion to dismiss is GRANTED with regard to Claim III as brought against NMFS and is DENIED in all other respects.

I conclude that plaintiffs’ reinitiation claim against the United States Bureau of Reclamation (“Bureau”) is brought under the ESA citizen suit provision and that review of that claim is not limited to an administrative record. The claim against NMFS, although brought under the Administrative Procedure Act (“APA”), is a failure to act claim and is therefore similarly not limited to an administrative record. I therefore DENY defendants’ motion to limit review. Notably, however, I would reach the same result reviewing these claims under the administrative record as I do considering the extra-record evidence. As a result, to simplify the issue, and to avoid any confusion or potential conflicts regarding the scope of extra-record evidence permitted for each claim, I will rely exclusively on the record evidence to assess the merits of plaintiffs’ reinitiation claims. Because the parties do not dispute that extra-record evidence may be considered to assess standing and to determine whether injunctive relief is appropriate, I will consider the extra-record evidence, where applicable, for these limited purposes.

With regard to the motions for summary judgment, I conclude that the federal defendants violated 50 C.F.R. 402.16 because they delayed two years before reinitiating formal consultation after the incidental take trigger was exceeded in 2014. Preliminary injunctive relief, pending completion of formal consultation, is an appropriate remedy for this substantial procedural violation. In general, plaintiffs’ requested in-junctive relief is supported by the best available science and plaintiffs’ proposal that the parties’ technical experts confer on the precise timing, duration, volume, and manner of any potential injunctive flows will allow the parties to address the Bureau’s needs to maintain sufficient water for the sucker fish (two species of endangered fish also impacted by the Kla-math Project), comply with various regulations, and manage safety concerns. Plaintiffs’ motions for summary judgment on Claim I are GRANTED. The precise details of the preliminary injunction will be determined as outlined below.

BACKGROUND

I. FACTUAL BACKGROUND

This case concerns the rate of Ceratanova shasta (“C. shasta”) infection among Coho salmon in the Klamath River. Yurok Dkt. No. 8 at 1. Water flows on the Kla-math River are altered and lowered by the Klamath Irrigation Project, a water project that provides water to irrigation districts in Oregon and Northern California. Id. The Klamath Project is operated by the Bureau, a federal agency that is required to comply with ESA regulations that prohibit the taking of any endangered or threatened species.

The history of the Klamath Project and its impact on the Coho salmon is long and complex, and will be discussed in greater detail when this Order addresses the motions for summary judgment. Underlying the motions are these salient facts. The Bureau is bound by a 2013 Biological Opinion and incidental take statement that outlines the projected impact of the Klamath Project’s operations on threatened species and sets the permissible C. shasta disease rate among Coho salmon at 49 percent. AR 1043-1075. In 2014 and 2015, the Klamath River’s Coho salmon population suffered unprecedented outbreaks of C. shasta, far exceeding the incidental take maximum outlined in the NMFS incidental take statement: 81 percent infection in 2014 and 91 percent in 2015. AR 502. In their complaints and motions for summary judgment, plaintiffs asserted that, per ESA regulations, following this violation of the incidental take statement, the Bureau and NMFS (collectively, “federal defendants”) were required to reinitiate and complete formal consultation on the Klamath Project’s operations, but failed to do so. See e.g., Yurok Dkt. No. 8 at 2.

In January, 2017, weeks after plaintiffs filed their motions for summary judgment, the Bureau sent letters to NMFS and FWS stating that it wanted to clarify that the agencies were now engaged in formal consultation. AR 0001-04; AR 0005-08. The Hoopa Valley plaintiffs contest that these letters are sufficient to show that the federal defendants have in fact reinitiated formal consultation. In contrast, the Yurok plaintiffs now concede that the federal defendants have reinitiated formal consultation but ask the court to order the defendants to perfect their formal consultation by following the procedures outlined in Section 402.14 for conducting formal consultation generally.

II. PROCEDURAL BACKGROUND

On July 29, 2016, the Hoopa Valley Tribe filed suit against the Bureau and NMFS seeking declaratory and injunctive relief and alleging that the federal defendants are in violation of the ESA because they have failed to reinitiate formal consultation on the impact of Klamath Project operations on threatened Coho salmon. Hoopa Dkt. No. 1. Hoopa Valley’s complaint asserts four claims for relief: (1) failure to reinitiate formal consultation on the 2013-2023 Klamath Project operations, brought under the citizen suit provision of the ESA and alternatively, under the APA against both the Bureau and NMFS; (2) failure to prepare an adequate Biological Opinion for the 2013-2023 Klamath Project operations as required under Section 7 of the ESA, brought against NMFS; (3) violation of Section 9 of the ESA by “taking” threatened Coho salmon in excess of the amount authorized in the incidental take statement, brought against both the Bureau and NMFS; and (4) violation of the APA and Magnuson-Stevens Fishery Conservation and Management Act by failing to consult on essential fish habitat, brought against both the Bureau and NMFS. Id.

A. Motion to Dismiss

The federal defendants moved to dismiss all of these claims, asserting that Claims I, III, and IV were not cognizable against NMFS, that Claim III failed against the Bureau because plaintiffs had failed to show an imminent Section 9 violation and because the Bureau had immunity from Section 9 liability, and that Claims I, II, & IV were “prudentially moot” because the agencies had already begun “informal consultation.” Hoopa Dkt. No. 33. In the alternative, the federal defendants requested that the court stay claims I, II, and TV so that the agencies could focus on their informal consultation process. Id. at 22. The briefing and hearing schedule on the motion to dismiss was originally extended by stipulation of the parties. After the Yurok case was filed and the Hoopa Valley and Yurok plaintiffs filed motions for summary judgment, the court extended the hearing on the motion to dismiss to be heard at the same time as these summary judgment motions.

B. Motion for Partial Summary Judgment

The Yurok Tribe and commercial and conservation fishing groups filed their complaint on November 29, 2016, mostly mirroring the claims raised by Hoopa Valley. Yurok Dkt. No. 1. The Yurok Tribe’s claims differ in two primary ways: (1) their Claim II does not specifically challenge the 2013 Biological Opinion (“BiOp”) but instead alleges generally that both the Bureau and NMFS are in violation of their substantive duties under Section 7(a)(2) of the ESA; and (2) their Claim III, the “taking” claim, is asserted only against the Bureau. Id.

On November 30, 2016, and December 1, 2016, the Hoopa Valley and Yurok plaintiffs moved for partial summary judgment on their failure to reinitiate claims, seeking a declaratory judgment that the Bureau and NMFS are in violation of their legal duty to reinitiate formal consultation and requesting injunctive relief. Yurok Dkt. No. 8; Hoopa Dkt. No. 69. Now that the agencies have exchanged letters explicitly stating that they are engaged in formal consultation, plaintiffs have made minor modifications to their requested relief. At the January 27, 2017 hearing plaintiffs clarified that they currently seek three forms of relief: (1) an order directing NMFS and the Bureau to perfect reinitiation of formal consultation by following the procedures outlined in Section 402.14; (2) a declaratory judgment that the Bureau is in violation of Section 7(a)(2); and (3) in-junctive relief while formal consultation is ongoing. Because the Bureau will “lock in” the 2017 irrigation allocation around April 1, 2017, and prevention flows may be needed sooner to prevent additional harm to the Coho salmon, plaintiffs ask this Court to issue a decision on this motion by mid-February, 2017. Id. In support of their motion for partial summary judgment, plaintiffs submit various declarations and exhibits that relate to standing, whether the federal agencies have reinitiated consultation, irreparable harm, the best available science on reasons for and proposed measures against C. shasta infections, and the necessity and scope of the requested injunctive relief. See generally, Declarations in Support of Motion for Summary Judgment, Yurok Dkt. Nos. 9-15.

The federal defendants oppose plaintiffs’ motion for summary judgment, arguing that the claim for declaratory relief is moot because the agencies have already reiniti-ated formal consultation. They add that plaintiffs are not entitled to injunctive relief because (1) the requested relief is not narrowly tailored to the alleged procedural violation; (2) the requested relief may impact other endangered species in the Kla-math River; (3) plaintiffs have not shown that they or the Coho salmon will be irreparably harmed absent the requested measures; ' and (4) the balance of harms weighs against granting plaintiffs’ requested relief. Federal Defendants’ Opposition to Motion for Summary Judgment (“Fed. Oppo.”) Yurok Dkt. No. 47.

The Intervenor Defendants—irrigation and drainage districts that hold water contracts with the Klamath Project—-also oppose plaintiffs’ motion, asserting that plaintiffs’ claim for declaratory relief fails because it was mooted when the agencies reinitiated formal consultation and because plaintiffs have failed to show that the Kla-math Project causes each and every incidence of fish disease in the Klamath River. Intervenor Opposition to Motion for Summary Judgment (“Int. Oppo.”) Yurok Dkt. No. 48. They also assert that plaintiffs should not be awarded injunctive relief because (1) plaintiffs’ proposed protective flows have not been properly tested through a complete scientific process; (2) the proposed flows will require withholding over 100,000 acre-feet of water from the irrigation districts that rely on water for agriculture; (3) plaintiffs have failed to show irreparable injury; and (4) no injunction should be granted until the parties have had an opportunity to resolve any scientific factual disputes through an evi-dentiary hearing or through discovery. Id.

Plaintiffs argue in reply that their claim is not moot because the agencies have not completed formal consultation and the court may still grant effective relief. They maintain that their requested injunctive relief is supported by the best available science and is needed to protect the Coho salmon. Yurok Reply Dkt. No. 54.

C. Motion to Limit Review

On December 22, 2016, federal defendants filed a motion to limit review to the administrative record and to strike plaintiffs’ extra-record evidence. Yurok Dkt. No. 42. Federal defendants argue that plaintiffs’ first claim is governed by the APA’s “indivisible” standard and scope of review, and therefore review must be limited to the administrative record. Id. at 10; Dkt. No. 49 at 6. Defendant-intervenors moved to join the federal defendants’ motion on December 23, 2016. Dkt. No. 43.

Plaintiffs oppose the motion to limit review and to strike, arguing that the failure to consult claim arises under the ESA’s citizen suit provision, not the APA, and therefore that the APA’s scope of review does not apply. Dkt. No. 44 at 13. Plaintiffs further contend that, to the extent their claim against NMFS must be brought under the APA and not the ESA, review of this claim is similarly not limited to the record because “no such record exists where the agency has failed to act.” Id. at 16. Plaintiffs do not oppose the defendant-intervenors’ joinder.

I heard oral argument on all of these motions on January 27, 2017.

MOTION TO DISMISS (BROUGHT AGAINST HOOPA VALLEY ONLY)

The federal defendants have moved to dismiss Hoopa Valley’s claims. Motion to Dismiss (“MTD”) at 1 (Hoopa Dkt. No. 33). They seek to dismiss Counts I, III, and IV against NMFS on the grounds that plaintiffs have failed to make out a cognizable claim against that entity, Count III against the Bureau because plaintiffs have failed to show an imminent Section 9 violation and because the Bureau is protected from Section 9 taking liability since it is operating within the terms and conditions of the 2013 BiOp’s incidental take statement, and Counts I, II, and IV against both entities because those claims are “prudentially moot.” Id. They also assert that, in the alternative, Counts I, II, and IV should be stayed pending the agencies’ completion of the consultation process. Id. at 2.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible when the plaintiff pleads facts that “allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted). There must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. While courts do not require “heightened fact pleading of specifics,” a plaintiff must allege facts sufficient to “raise a right to relief above the speculative level.” See Twombly, 550 U.S. at 555, 570, 127 S.Ct. 1955.

In deciding whether the plaintiff has stated a claim upon which relief can be granted, the Court accepts the plaintiffs allegations as true and draws all reasonable inferences in favor of the plaintiff. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” See In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).

DISCUSSION

I. IS THERE A COGNIZABLE CLAIM AGAINST NMFS FOR COUNTS I, III, & IV?

The federal defendants argue that Counts I, III, and IV are not cognizable against NMFS. They assert that Count I fails under the ESA because the ESA citizen suit provision does not provide a cause of action for failure to reinitiate against the Secretary and fails under the APA because NMFS has no legal duty to reinitiate. Id. at 8. They contend that Count III is not cognizable because NMFS, as a consulting agency, does not participate in the “take” of any species. Id. at 13. And, they argue that Count IV fails because Section 1855(b)(4)(B) of the Magnuson-Stevens Fishery Conservation Act (“MSFCMA”) does not place any duty on consulting agencies, like NMFS. Id. at 17.

A. Count I

1. ESA

The federal defendants contend that the citizen suit provision of the ESA does not provide a cause of action for Count I against NMFS. Section 1540(g)(1)(A) of the citizen suit provision allows any person to bring a civil suit “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.” On its face, this broad language would seem to allow a plaintiff to bring suit against NMFS for violations of Section 402.16 and Section 402.14(i)(4), which are regulations implementing Section 7 of the ESA.

But the federal defendants correctly argue that this claim is impermissible against NMFS because NMFS is an administrator of the ESA and the Supreme Court has held that Section 1540(g)(1)(A) does not provide a cause of action to sue the Secretary (which includes the Secretary of the Interior, Secretary of Commerce, and their delegate services, such as NMFS) for “failure to perform [its] duties as administrator of the ESA.” Bennett v. Spear, 520 U.S. 154, 174, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). In Bennett, the Court attempted to reconcile Section 1540(g)(1)(C), which provides a specific right to sue the Secretary for certain specific non-discretionary Section 1533 violations, with Section 1540(g)(1)(A), the general citizen suit provision. Id. at 173, 117 S.Ct. 1154. The Court concluded that, because Section 1540(g)(1)(C) provides a specific, but limited, cause of action against the Secretary, Section 1540(g)(1)(A) cannot offer an alternative, general, cause of action. Id. It explained:

“The opposite contention is simply incompatible with the existence of § 1540(g)(1)(C), which expressly authorizes suit against the Secretary, but only to compel him to perform a nondiscre-tionary duty under § 1533. That provision would be superfluous—and, worse still, its careful limitation to § 1533 would be nullified—if § 1540(g)(1)(A) permitted suit against the Secretary for any ‘violation’ of the ESA.”

Id.

Bennett effectively holds that the Secretary may only be sued under the ESA in its capacity as a consulting agency pursuant to the specifications outlined in Section 1540(g)(1)(C). Id. As Hoopa Valley’s failure to reinitiate claim does not fall under the non-discretionary duties outlined in Section 1553, and Hoopa Valley seeks to sue NMFS in its capacity as a consulting agency, Hoopa Valley’s reinitiation claim against NMFS cannot be sustained under the ESA.

2. APA

The federal defendants similarly argue that Count I cannot be maintained against NMFS under the APA because NMFS, as a consulting agency, does not have a duty to reinitiate consultation. MTD. at 10.

They contend that -there is no duty, in the ESA or its regulations, that the Service (the consulting agency) reinitiate consultation. Id. They note that Section 402.14(i)(4), which provides that reinitiation of formal consultation is mandatory if the incidental take maximum is triggered, refers only to the action agency and does not state that the Service, here NMFS, is obligated to reinitiate consultation. 50 C.F.R. § 402.14(f)(4) (“If during the course of the action the amount or extent of incidental taking, as specified under paragraph (i)(l)(i) of this Section, is exceeded, the Federal agency must reinitiate consultation immediately.”) (emphasis added). They further argue that Section 402.16 does not impose a duty on NMFS to reini-tiate formal consultation, but only to “request” reinitiation of consultation. 50 C.F.R. § 402.16 (“Reinitiation of formal consultation is required and shall be requested by the Federal agency or by the Service, ... (a) If the amount or extent of taking specified in the incidental take statement is exceeded.”) (emphasis added). They also highlight a number of other parts of the Act that focus on the action agency’s obligations with regard to initiating formal consultation and to cases that focus on the action agency’s obligations. See Mot. at 10.

While the federal agencies’ arguments might be compelling if this was an issue of first impression, the Ninth Circuit has already addressed this precise issue multiple times and confirmed that both the action agency and the consulting agency have a duty to reinitiate consultation. See Salmon Spawning & Recovery All. v. Gutierrez, 545 F.3d 1220, 1229 (9th Cir. 2008) (“The duty to reinitiate consultation lies with both the action agency and the consulting agency.”); Gifford Pinchot Task Force v. USFWS, 378 F.3d 1059, 1076-77 (9th Cir. 2004) (holding that discovery of new facts “mandates reinitiating formal consultations” and that “[the consulting agency] was obligated to reinitiate consultation pursuant to 50 C.F.R. Section 402.16”); Envtl. Prot. Info. Ctr. v. Simpson Timber Co., 255 F.3d 1073 (9th Cir. 2001) (“The duty to reinitiate consultation lies with both the action agency and the consultation agency.”). Indeed, Judge Chhabria of this District recently rejected the arguments the federal defendants make here, applying the Ninth Circuit’s holding from Salmon Spawning that both the action agency and consulting agency are obligated to reinitiate consultation. Pacificans for a Scenic Coast v. Cal. DOT, 204 F.Supp.3d 1075, 1093 (N.D. Cal. 2016) (“Consistent with the plain text of [50 C.F.R. Section 402.16], the Ninth Circuit has stated that the duty to reinitiate consultation lies with both the action agency and the consulting agency.”).

The federal defendants’ effort to distinguish this clear precedent is wholly unpersuasive. Formal consultation is a collaborative process that requires the participation of both the Bureau and NMFS. The purpose of reinitiating formal consultation is not simply to check off a procedural box, but to complete a formal consultation process that ensures to the extent possible that there are no substantive violations of the ESA. Both the NMFS and Bureau have a clear obligation to participate in and complete this reinitiation process. As the Ninth Circuit has already held, “[t]he duty to reinitiate consultation lies with both the action agency and the consulting agency.” Salmon Spawning, 545 F.3d at 1229. The defendants’ claim that a reinitiation claim is not cognizable against NMFS fails.

B. Count III

The federal defendants assert that Count III, unlawful “taking” of a listed species, is not cognizable against NMFS because NMFS does not participate in operating the Klamath Project and so cannot be responsible for any “takings.” MTD. at 13. Plaintiffs do not attempt to argue otherwise and it appears clear that NMFS’s role with regard to the Klamath Project is limited to providing the Bureau with advice and biological opinions—actions which do not directly lead to the “taking” of any species. Count III is DISMISSED with regard to NMFS.

C. Count IV

The federal defendants assert that Count IV is not cognizable against NMFS because the statutory provision plaintiffs cite applies only to action agencies like the Bureau, and not to NMFS. MTD. at 17. In their Amended Complaint plaintiffs cited to 16 U.S.C. § 1855(b)(4)(B), which states in part:

Within 30 days after receiving a recommendation under subparagraph (A), a Federal agency shall provide a detailed response in writing to any Council commenting under paragraph (3) and the Secretary regarding the matter.

16 U.S.C. § 1855(b)(4)(B).

Plaintiffs do not dispute that Section 1855(b)(4)(B) does not apply to NMFS and explain that the reference to this section was a mistake—plaintiffs intended to reference 16 U.S.C. § 1855(b)(4)(A), which reads as follows:

If the Secretary receives information from a Council or Federal or State agency or determines from other sources that an action authorized, funded, or undertaken, or proposed to be authorized, funded or undertaken, by any State or Federal agency would adversely affect any essential fish habitat identified under this chapter, the Secretary shall recommend to such agency measures that can be taken by such agency to conserve such habitat.

16 U.S.C. § 1855(b)(4)(A). It is clear that the quoted section does apply to NMFS. MTD. Oppo. at 24. The argument that Claim IV should be dismissed because Section 1855(b)(4)(B) does not apply to NMFS is now moot as plaintiffs have since amended their complaint and reference the correct section in the operative version. Second Amended Complaint ¶ 108 (Hoopa Dkt. No. 87).

In their reply the federal defendants argue that 16 U.S.C. § 1855(b)(4)(A) does not impose any duty on NMFS until it has received an assessment from a Federal agency. MTD. Reply at 12 (Hoopa Dkt. No. 60). They argue that because the Bureau has not provided an assessment to NMFS, it has no duty to act. Id. But this argument is contradicted by the language of the statute which reads, “If the Secretary receives information from a Council or Federal or State agency or determines from other sources” that an agency action would adversely affect any essential fish habitat “the Secretary shall recommend to such agency measures that can be taken by such agency to conserve such habitat.” 16 U.S.C. § 1855(b)(4)(A). The language of this section indicates that the Secretary has a duty to provide a recommendation even in circumstances where the Bureau has not provided an assessment, if it has otherwise determined that an agency action would adversely affect essential fish habitat. Whether NMFS has made such a determination is an unresolved factual question.

Claim IV is cognizable against NMFS.

II. CLAIM III AGAINST THE BUREAU

The federal defendants assert that plaintiffs’ taking claim against the Bureau fails because the 2013 BiOp’s incidental take statement provides a safe harbor for Section 9 liability. Reply at 14. The defendants note that Section 7(c)(2) of the ESA states that “any taking that is in compliance with the terms and conditions specified in a written [incidental take] statement provided under subsection (b)(4)(iv) shall not be considered to be a prohibited taking of the species concerned.” 16 U.S.C.A. § 1536(a)(2). The “terms and conditions” of an incidental take statement are the rules “with which the action agency must comply to implement the reasonable and prudent measures” outlined by the consulting agency as necessary to limit impact to the relevant species. Oregon Natural Resources Council v. Allen, 476 F.3d 1031, 1034 (9th Cir. 2007). “As long as any takings comply with the terms and conditions of the Incidental Take Statement, the action agency is exempt from penalties for such takings.” Id. The Bureau contends that, even though it has exceeded the trigger of the incidental take statement and reinitiation of formal consultation is required, the safe harbor protection of Section 7(c)(2) continues to exempt it from penalties so long as it continues to operate the Klamath Project in line with the terms and conditions of the incidental take statement.

The Ninth Circuit has repeatedly indicated that when an agency exceeds the “trigger” of an incidental take statement, the relevant agencies are required to reini-tiate formal consultation and the safe harbor provision becomes invalid. Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1249 (9th Cir. 2001) (“In general, Incidental Take Statements set forth a ‘trigger’ that, when reached, results in an unacceptable level of incidental take, invalidating the safe harbor provision, and requiring the parties to re-initiate consultation.”); Allen, 476 F.3d at 1039 (9th Cir. 2007) (noting that an Incidental Take Statement was invalid because it “fails to set forth a trigger that would invalidate the safe harbor provision and reinitiate the consultation process”); Wild Fish Conservancy v. Salazar, 628 F.3d 513, 531 (9th. Cir. 2010) (quoting Ariz. Cattle Growers’ Ass’n, 273 F.3d at 1249) (“Incidental Take Statements set forth a ‘trigger’ that, when reached, results in an unacceptable level of incidental take, invalidating the safe harbor provision.”).

The Ninth Circuit has never applied this language to find an agency hable for Section 9 penalties after exceeding the “trigger” of an incidental take statement; instead, this language comes exclusively from discussions regarding whether particular “triggers” were appropriate. It is therefore unclear exactly when or how the safe harbor provision of an incidental take statement becomes invalid after the incidental take trigger is met and how courts should analyze a subsequent Section 9 claim. The federal defendants argue that the safe harbor provision would be virtually worthless if exceeding the “trigger” of the incidental take statement meant that the agency was immediately subject to Section 9 penalties. This is a strong argument and harmonizes with the language of Section 7(c)(2), which provides that “any taking that is in compliance with the terms and conditions” of an incidental take statement, not just those below the “trigger” provided, are protected. The safe harbor provision would be problematically weak if the “triggering” action itself subjected the agency to Section 9 penalties, even though it had complied with all the terms and conditions outlined in the relevant biological report.

However, the Bureau’s assertion that the safe harbor remains in place indefinitely as long as it continues to comply with the terms and conditions of the incidental take statement cannot be reconciled with the Ninth Circuit cases. Even if I accept that the safe harbor shields the Bureau from liability on the initial triggering take, given the Ninth Circuit’s statements in Arizona Cattle Growers’ Association, Allen, and Salazar, I cannot conclude that the safe harbor protects the Bureau for subsequent violations as well. Because the incidental take statement was triggered in 2014 when C. shasta rates reached 81 percent, it is possible that the safe harbor provision has been invalid since 2015. For the purposes of pleading, plaintiffs have demonstrated that it is plausible that the safe harbor provision is no longer valid and cannot protect the Bureau from Section 9 liability for future takings.

The federal defendants also argue that Count III must be dismissed because plaintiffs have failed to show an ongoing “taking” violation or an imminent future violation. MTD. at 14. The parties do not dispute that the ESA’s citizen suit provision only provides a cause of action to enjoin ongoing violations or to prevent imminent future violations. The ESA provides a cause of action “to enjoin any person ... who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof.” 16 U.S.C. § 1540(g)(1)(A). In the context of the Clean Water Act, the Supreme Court has held that the phrase “in violation of’ permits suits for ongoing, but not wholly past, violations. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 58-59, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). Gwaltney is instructive and supports the conclusion that the ESA citizen suit provision similarly permits a suit for ongoing, but not exclusively past, violations. In addition, the Ninth Circuit has held that the ESA citizen suit provision provides a cause of action for “imminent” future violations that are “reasonably certain to occur.” Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 787 (9th Cir. 1995). Given this precedent, I agree that the ESA citizen suit provision provides a cause of action for ongoing and imminent future violations, but not for wholly past violations.

Defendants contend that a future violation is not imminent because higher water levels are likely to permit disease-management measures that will keep the incidence of C. shasta below 49 percent. Plaintiffs assert that they have made out a case for an imminent future violation because they have demonstrated that operations under the 2013 BiOp are likely to lead to violations of the incidental take statement in 2017. MTD. Oppo. at 21. Plaintiffs have demonstrated an imminent Section 9 violation.

Plaintiffs have shown that in 2014 and 2015, while the Bureau was operating the Klamath Project in accordance with the 2013 BiOp, the infection rate for C. shasta greatly exceeded the incidental take maximum of 49 percent, reaching 81 percent in 2014 and 91 percent in 2015. Although 2014 and 2015 were drought years, these infection rates, well over the incidental take maximum, indicate a strong likelihood of future infection rates above 49 percent even in substantially wetter years. Although the federal defendants point out that the 2016 infection rates did not exceed 49 percent, the 2016 rates still reached 48 percent, just one percent under the trigger. This high infection rate, in a much wetter year, is not particularly comforting; plaintiffs assert that it likely would have been higher if not for a controlled spill event in March 2016 and increased precipitation that allowed the Bureau to release flows above the 2013 BiOp mandatory mín-imums in the winter and fall. MTD. Oppo. at 22. They argue that if the Bureau is permitted to operate the Project solely in compliance with the 2013 BiOp minimum flows, and is not required to issue more favorable flows as they did in 2016, the infection rate is likely to exceed the incidental take trigger again in 2017. And, given the three year lifespan of the Coho salmon, the failure to protect them this year could cause irreparable harm.

Plaintiffs have made a strong showing that infection rates are likely to exceed the incidental take statement’s 49 percent trigger in 2017 if the Bureau continues to operate the Klamath Project in accordance with the 2013 BiOp’s minimum flows. This is more than sufficient to show the likelihood of an imminent future Section 9 take. Plaintiffs have made out a valid Section 9 claim against the Bureau.

III. SHOULD CLAIMS I, II & IV BE DISMISSED AS PRUDENTIALLY MOOT?

In their motion to dismiss, filed in October, 2016, the federal defendants asserted that Counts I and II were “prudentially moot” because the agencies were already involved in some kind of informal consultation process, and that Count IV was “prudentially moot” because the agencies had a schedule in place to complete consultation under the Magnuson Stevenson Act. MTD. at 19. The federal defendants have since updated their position, now asserting that claims I and II are entirely moot because the agencies have definitively reinitiated formal consultation. I address these arguments in the mootness discussion on the motion for summary judgment. For the reasons outlined there, I conclude that claims I and II are not moot because plaintiffs may still be granted effective relief on these claims.

The federal defendants maintain that Claim IV is moot because the agencies have a schedule in place to complete consultation. MTD. at 19. Plaintiffs do not dispute this but argue that it is still only speculative whether NMFS will actually provide the required recommendations. They note that NMFS’s obligation under 16 U.S.C. § 1855(b)(4)(A) is not to consult, but to provide recommendations to the Bureau. They highlight that it is undisputed that NMFS has not yet complied with this obligation. 16 U.S.C. § 1855(b)(4)(A) (“[T]he Secretary shall recommend to such agency measures that can be taken by such agency to conserve such habitat.”). While it appears the agencies are now working to meet the requirements of 16 U.S.C. § 1855(b)(4)(A), they have not yet done so. The claim does not yet appear moot.

IV. SHOULD CLAIMS I, II & IV BE STAYED?

In the alternative, the federal defendants request that Counts I, II, and IV be stayed while the agencies complete consultation. MTD. at 22. The defendants argue that a stay will allow the agencies to focus on completing the consultation process and will not cause hardship to plaintiffs because there is no imminent threat of danger to the Coho salmon. As discussed with regard to Count III, plaintiffs have presented a convincing case that the Bureau is likely to exceed the incidental take statement trigger in 2017 if they continue to operate the Klamath Project in compliance with the 2013 BiOp minimum flow requirements. The 2013 BiOp concludes generally that C. shasta is the biggest threat to Coho salmon and its no-jeopardy determination relies on the presumption that C. shasta rates will not exceed the incidental take trigger. AR 1011. Because continued C. shasta rates above the incidental take trigger will have a negative effect on Coho salmon, and this total impact has not been studied, there is a likelihood of imminent harm to the Coho salmon. Plaintiffs have demonstrated a need for immediate relief and a stay is not appropriate.

MOTION TO STRIKE

The federal defendants move to limit review on plaintiffs’ motions for summary judgment to the administrative record. The defendant-intervenors’ unopposed motion to join the motion to limit review is GRANTED. However, because I conclude plaintiffs’ claims are not limited to an administrative record, the motion to strike and limit review is DENIED. Nevertheless, because my substantive analysis of the motion for summary judgment would not change if I were to limit review to an administrative record, and because the extra-record evidence raises a number of hard-to-resolve practical and procedural issues, I only consider the record evidence in evaluating the merits of plaintiffs’ reini-tiation claims.

DISCUSSION

A. Failure to Reinitiate Consultation Under the Endangered Species Act

Plaintiffs allege that the Bureau and NMFS failed to reinitiate formal consultation on the Klamath Project operations, in violation of ESA implementing regulation 50 C.F.R. § 402.16. Section 402.16 provides in relevant part:

Reinitiation of formal consultation is required and shall be requested by the Federal agency [i.e., the Bureau] or by the Service [i.e., NMFS], where discretionary Federal involvement or control over the action [i.e., the Klamath Project operations] has been retained or is authorized by law and:

(a)If the amount or extent of taking specified in the incidental take statement is exceeded;

(b) If new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered;

(c) ...; or

(d) ....

50 C.F.R. § 402.16. “The duty to reinitiate consultation lies with both the action agency and the consulting agency. Salmon Spawning, 545 F.3d at 1229. Reinitiation of consultation requires the appropriate consulting agency to issue a new Biological' Opinion before the agency action may continue. Simpson Timber, 255 F.3d at 1076.

Plaintiffs contend that federal defendants’ duty to reinitiate consultation has been triggered under paragraph (a) because in 2014 and 2015 C. Shasta infection rates exceeded the permissible limit set forth in the incidental take statement, and under paragraph (b) because new information reveals effects of the Klamath Project operations that may affect threatened Coho salmon to an extent not previously considered. Yurok Dkt. No. 1 at 30-31.

B. Scope of Review

While plaintiffs bring the same failure to reinitiate claims against both the Bureau and NMFS, the claim against the Bureau may be brought under the ESA citizen suit provision, while the claim against NMFS, as discussed above, may only be brought under the APA. The appropriate scope of review is not necessarily the same for each claim. I will address them each in turn.

1. The ESA claim against the Bureau

The parties do not dispute that the claim against the Bureau is brought under the ESA’s citizen suit provision, but dispute whether the APA’s scope of review, nevertheless, applies to that claim.

Federal defendants contend that review of an ESA claim is governed by the APA, and thus must be limited to the administrative record. Yurok Dkt. No. 49 at 9. The APA provides a right to judicial review for “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. When considering a claim arising under the APA, the scope of judicial review is confined to “the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973); 5 U.S.C. § 706 (“[T]he court shall review the whole record or those parts of it cited by a party”). Federal defendants assert that the APA’s standard and scope of review are “inextricably related” and separating these review principles would be “illogical” and contrary to binding precedent. Yurok Dkt. Nos. 42 at 10-11 & 49 at 9.

In response, plaintiffs argue that the APA’s scope of review does not govern their claim brought under the ESA citizen suit provision, which “creates an express, adequate remedy” at law. Washington Toxics Coal. v. EPA, 413 F.3d 1024, 1034 (9th Cir. 2005). “[B]eeause the APA by its terms independently authorizes review only when ‘there is no other adequate remedy in a court,’ 5 U.S.C. § 704,” plaintiffs assert that it is inapplicable to their claim. Bennett v. Spear, 520 U.S. at 161-62, 117 S.Ct. 1154. The citizen suit provision creates a private right of action allowing individuals to bring suit “to enjoin any person, including the United States and any other governmental instrumentality or agency ... who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof.” 16 U.S.C. § 1540. The Court has expressly recognized that the ESA’s citizen suit provision provides “a means by which private parties may enforce the substantive provisions of the ESA against” federal agencies like the Bureau. Bennett v. Spear, 520 U.S. at 173, 117 S.Ct. 1154. Thus, “[plaintiffs’ suits to compel agencies to comply with the substantive provisions of the ESA arise under the ESA citizen suit provision, and not the APA.” Washington Toxics, 413 F.3d at 1034; see W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 481 (9th Cir. 2011) (“We review claims brought under the ESA under the citizen-suit provision of the ESA or, when the citizen-suit provision is unavailable, under the APA.”).

Plaintiffs further contend that although the APA’s scope and standard of review are set forth in the same section, 5 U.S.C. § 706, “courts have not treated them as indivisible, particularly where the case challenges an agency’s failure to discharge a legal duty.” Dkt. No. 44 at 12. In support of their argument, plaintiffs rely on the Ninth Circuit’s decisions in Washington Toxics and Kraayenbrink, cases where the court considered whether a federal agency’s failure to consult violated the ESA.

In Washington Toxics, plaintiffs brought an ESA citizen suit against the Environmental Protection Agency (“EPA”) for its alleged failure to consult with the NMFS regarding the effects of its ongoing pesticide registrations. “After a hearing and consideration of voluminous evidence bearing on the appropriate scope of injunctive relief,” including evidence on the effects of the challenged pesticides, the district court enjoined the EPA’s authorization of the use of certain pesticides pending compliance with the ESA. Washington Toxics, 413 F.3d at 1031. The intervening defendants argued on appeal that the district court erred by failing to limit review to the administrative record in accordance with APA standards. Id. at 1034. The Ninth Circuit rejected this argument and stated that the lower court “correctly held ... that the ESA citizen suit provision creates an express, adequate remedy.” Id. The Ninth Circuit concluded that “[bjecause [the ESA] independently authorizes a private right of action, the APA does not govern the plaintiffs’ claims. Plaintiffs’ suits to compel agencies to comply with the substantive provisions of the ESA arise under the ESA citizen suit provision, and not the APA.” Id.

In Kraayenbrink, plaintiffs sued the Bureau of Land Management (“BLM”) under the ESA citizen suit provision, alleging that BLM violated the ESA by failing to consult with FWS prior to approving nationwide grazing regulations. The district court admitted plaintiffs’ extra-record evidence in support of their claim that the regulations “may affect” endangered species and thus trigger formal consultation under the ESA. Kraayenbrink, 632 F.3d at 497. On appeal, the intervening defendants argued that the court could not consider materials outside the record in conducting a review under the ESA. Id. In upholding the district court’s decision with respect to plaintiffs’ ESA claim, the Ninth Circuit reaffirmed its holding in Washington Tox-ics that “the APA applies only where there is ‘no other adequate remedy in a court,’ 5 U.S.C. § 704, and—because the ESA provides a citizen suit remedy—the APA does not apply in such actions.” See id. (citing Washington Toxics, 413 F.3d at 1034).

The Bureau and NMFS argue that plaintiffs’ reliance on Washington Toxics and Kraayenbrink is misplaced as neither case “announee[d] the wholesale (and unexplained) abandonment of administrative review principles for ESA citizen-suit claims.” Dkt. No. 42 at 12. Federal defendants further contend that these decisions are no longer good law in light of Karuk Tribe of California v. United States Forest Service, a more recent en banc Ninth Circuit decision. 681 F.3d 1006, 1017 (9th Cir. 2012). Dkt. Nos. 42 at 12-13 & 49 at 14-16. According to NMFS and the Bureau, Karuk Tribe “definitively dispelled” confusion in the district courts caused by Washington Toxics and Kraayenbrink in holding that a failure to consult claim under the ESA is a record review case and reviewed under the APA. Dkt. Nos. 42 at 13 & 49 at 14.

In Karuk Tribe, the Ninth Circuit considered whether the Forest Service’s approval of notices of intent to conduct mining activities in the Klamath National Forest amounted to “agency action” that “may affect” threatened Coho salmon and trigger consultation. However, as noted by plaintiffs, the Ninth Circuit did not “hold” that the record review under the APA is required in ESA cases; rather, in the “Standard of Review” section the court simply stated “[b]ecause this is a record review case, we may direct that summary judgment be granted to either party based upon our review of the administrative record.” Karuk Tribe, 681 F.3d at 1017. There is no indication that the Ninth Circuit intended this statement to overrule the reasoning in Washington Toxics and Kraayenbrink; those cases are neither cited nor discussed in Karuk Tribe.

Other courts considering failure to act claims under the ESA have similarly rejected the argument that Karuk Tribe silently overrules Washington Toxics and Kraayenbrink. See Northwest Coal. for Alternatives to Pesticides v. EPA, 920 F.Supp.2d 1168, 1174 (W.D. Wash. 2013) (holding “Karuk Tribe cannot reasonably be read to implicitly or silently overrule the Ninth Circuit’s reasoned holdings that, in circumstances where a plaintiff challenges a federal agency’s failure to act under the citizen suit provision of the ESA, review is not confined to an administrative record”); Ellis v. Housenger, No. C-13-1266-MMC, 2015 WL 3660079, at *3 (N.D. Cal. June 12, 2015) (rejecting the argument that Karuk Tribe silently overrules Washington Toxics and Kraayen-brink given that it cites to neither case and “does not address in any manner the issue of whether evidence outside the administrative record can be considered”).

Because the ESA provides a citizen suit remedy for plaintiffs’ failure to consult claim, the APA’s record review provision does not apply and “evidence outside the administrative record [may be considered] for the limited purposes of reviewing Plaintiffs’ ESA claim.” Kraayenbrink, 632 F.3d at 497.

2. APA claim against NMFS

While the reinitiation claim against the Bureau may be brought under the ESA, as discussed with regard to the motion to dismiss, the claim against NMFS may only be brought under the APA. Plaintiffs assert that the court may nevertheless consider extra-record evidence in reviewing the claim against NMFS because in APA failure to act cases review is not limited to the administrative record. Friends of the Clearwater v. Dombeck, 222 F.3d 552, 560 (9th Cir. 2000) (when a plaintiff seeks to compel agency action unlawfully withheld or unreasonably delayed “review is not limited to the record as it existed at any single point in time, because there is no final agency action to demarcate the limits of the record”); S.F. BayKeeper v. Whitman, 297 F.3d 877, 886 (9th Cir. 2002) (“As this case concerns agency inaction, there can be no final agency action that closes the administrative record or explains the agency’s actions”). “The reason for this rule is that when a court is asked to review agency inaction before the agency has made a final decision, there is often no official statement of the agency’s justification for its actions or inactions.” S.F. BayKeeper, 297 F.3d at 886.

The federal defendants raise two primary objections to this argument. First, they argue that plaintiffs did not bring a “failure to act” claim under Section 706(1) of the APA, and instead brought a Section 706(2)(A) claim, alleging that the agencies’ failure to reinitiate was arbitrary and capricious. While plaintiffs reference only Section 706(2)(A) as the section authorizing their claim in the complaint, the substance of their claim—that the federal agencies have failed in a duty to reinitiate and seeking to compel the agencies to reinitiate .formal consultation—is easily read as a failure to act claim under Section 706(1). As plaintiffs’ pleadings support a failure to act claim and Section 706(1) authorizes such a claim, I will consider the reinitiation claim against NMFS as a failure to act claim.

Second, the federal defendants distinguish Friends of the Clearwater and S.F. BayKeeper as both being administrative record cases in which the court merely permitted limited supplemental materials to account for changes in circumstances while the case was ongoing, not to permit all extra-record evidence. Yurok Dkt. No. 49 at 12. See Friends of the Clearwater, 222 F.3d at 560-561 (explaining that extra-record evidence prepared after the onset of legal proceedings may “be relevant to the question of whether relief should be granted”); S.F. BayKeeper, 297 F.3d at 886 (“As this case concerns agency inaction, there can be no final agency action that closes the administrative record or explains the agency’s actions. Accordingly, it was not an abuse of discretion for the district court to rely upon the Program Review document.”). The court’s review of extra-record evidence was fairly limited: in Friends of the Clearwater the court considered supplemental studies, which were not prepared until after the litigation had commenced, that demonstrated the defendants had rectified the alleged violation, 222 F.3d at 559-561, while in S.F. BayKeeper the court considered a document prepared by the agency during the litigation that outlined the agency’s justification for its inaction. 297 F.3d at 886

Friends of the Clearwater and S.F. Bay-Keeper make clear that review is not wholly limited to an administrative record in a failure to act case, but they are not entirely clear on what extra-record evidence may be considered. A broad reading of these cases could permit the court to review any extra-record evidence submitted in this case, while a narrower reading might limit the court to considering only particular extra-record documents. The parties have submitted a substantial amount of extra-record evidence; trying to determine whether each piece of evidence falls under a narrow reading of Friends of the Clear-water and S.F. BayKeeper would require substantial judicial resources. It is not clear that these cases permit a court to consider all extra-record evidence in a failure to act APA case. I am therefore left with the unpleasant options of (1) expending substantial time and effort parsing through the extra-record evidence provided, attempting to assess whether it should be considered in a failure to act case, and (2) adopting a potentially overbroad reading of these cases. Luckily, because I conclude that my analysis would be the same regardless of whether I review this claim under the administrative record or if I consider extra-record evidence, I can avoid making this unpalatable choice. I will limit my review of the merits of plaintiffs’ reini-tiation claims to the documents and evidence contained in the administrative record. As discussed below, this does not change the analysis as the administrative record provides ample evidence to support plaintiffs’ claims.

3. Although not required, I will limit review to the administrative record

The parties do not dispute that extra-record evidence may be considered in a record review case to demonstrate standing and the necessity for injunctive relief. Dkt. No. 42 at 1 n.l. A significant portion of the extra-record evidence in dispute has been offered for these purposes. Id. The federal defendants identify a limited number of documents that they believe do not fall under either of these categories. Plaintiffs object to this list and , assert that virtually all of these documents are offered to establish standing or to show irreparable harm and the need for injunctive relief. After reviewing these documents, I conclude that most of the extra-record evidence is indeed relevant to those issues and may be considered for those purposes.

Defendants’ motion to strike and to limit review to the administrative record is DENIED. However, in assessing the merits of the reinitiation claims, I will voluntarily limit my review to those documents included in the record.

MOTION FOR SUMMARY JUDGMENT

Plaintiffs seek summary judgment on their claim for declaratory judgment that the federal defendants have violated the ESA and implementing regulation 50 C.F.R. § 402.16 by failing to reinitiate formal consultation. They seek an order directing the agencies to perfect formal consultation; a declaratory judgment that the Bureau is in violation of Section 7(a)(2); and injunctive relief while formal consultation is ongoing. Yurok Dkt. No. 8 at 2. With regard to the requested injunctive relief the plaintiffs propose two types of flows: “(1) prevention flows to flush out the worms that host the C. shasta spores that cause disease (and remove their habitat); and (2) emergency dilution flows to limit the spread of disease when disease rate or spore concentrations reach certain thresholds, reveling that the prevention flows proved insufficient.” Id.

LEGAL STANDARD

Summary judgment on a claim or defense is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In order to prevail, a party moving for summary judgment must show the absence of a genuine issue of material fact with respect to an essential element of the non-moving party’s claim, or to a defense on which the non-moving party will bear the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 823, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant has made this showing, the burden then shifts to the party opposing summary judgment to identify “specific facts showing there is a genuine issue for trial.” Id. The party opposing summary judgment must then present affirmative evidence from which a jury could return a verdict in that party’s favor. Anderson v. Liberty Lobby, 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

On summary judgment, the Court draws all reasonable factual inferences in favor of the non-movant. Id. at 255, 106 S.Ct. 2505. In deciding a motion for summary judgment, “ [c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not 'those of a judge.” Id. However, conclusory and speculative testimony does not raise genuine issues of fact and is insufficient to defeat summary judgment. See Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).

I. PLAINTIFFS’ REINITIATION CLAIM

A. Section 7

Plaintiffs contend that the Bureau and NMFS have failed to comply with Section 7 of the ESA by failing to reinitiate consultation following high rates of C. shasta disease among Coho salmon in 2014 and 2015. Yurok Dkt. No. 8 at 4. Section 7 prohibits federal agencies from taking any action that may jeopardize the survival of any listed species. It provides:

Each federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an “agency action”) is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary ... to be critical....

16 U.S.C. § 1536(a)(2). “Agency action” is defined broadly and includes “all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies,” 50 C.F.R. § 402.02, and includes the operation of the Klamath Project.

Section 7 lays out a consultation process where action agencies, like the Bureau, work with consulting agencies, like NMFS, to produce a biological opinion analyzing the impact that a proposed agency action will have on any listed species. 16 U.S.C. § 1536(b)(3)(a); 50 C.F.R. § 402.14(g)-(h). If, through the biological opinion, NMFS determines that the proposed action will jeopardize- the survival of a threatened or endangered species, it should lay out a reasonable alternative that would prevent any adverse impact. Id.

If NMFS determines that an agency action will not place any listed species in jeopardy, it may include in its opinion an “incidental take statement.” The ESA prohibits any “take” of a listed species, which includes causing harm to the species itself or to the species’ essential habitat. 16 U.S.C. § 1538(a)(1); § 1532(19); § 222.102. An “incidental take statement” shields an acting agency from liability for the taking of a listed species, lays out the amount and extent of taking projected, and sets terms and conditions the agency must follow to retain its immunity. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14®. An incidental take statement provides a safe harbor to the act