Federal Judge in Sacramento Delta says California's striped bass management, absent population-level effects on a listed species, does not violate Section 9 take prohibition
Coalition for a Sustainable Delta v. McCamman, No. 1:08-cv-00397 OWW GSA, --- F.Supp.2d ----, 2010 WL 2867107 (E.D. Cal. July 21, 2010)(District Judge Oliver W. Wanger)
THE LAWSUIT: 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.
BACKGROUND: 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 (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 (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”)…
EXCERPT: 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. 700 n. 13 (“The 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... Plaintiffs' motion for summary judgment is also DENIED as to Section 9 liability.
The Coalition for a Sustainable Delta 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 -- and especially the smolts, as pictured above. (Photo from Bureau of Land Management). Plaintiffs further argued that reduction in striped bass abundance would reduce total juvenile salmon predation and mortality, with a corresponding increase in juvenile salmon survival. See related article in EastBayExpress.com