Wishtoyo Foundation v. United Water Conserv. Dist. ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 26 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WISHTOYO FOUNDATION; CENTER No. 19-55380
FOR BIOLOGICAL DIVERSITY;
VENTURA COASTKEEPER, a Program of D.C. No.
Wishtoyo Foundation, 2:16-cv-03869-DOC-PLA
Plaintiffs-Appellees,
MEMORANDUM*
v.
UNITED WATER CONSERVATION
DISTRICT,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted February 12, 2020
Pasadena, California
Before: BERZON, TALLMAN, and R. NELSON, Circuit Judges.
United Water Conservation District (“United”) appeals the district court’s
grant of judgment to plaintiffs (collectively, “Wishtoyo”) on their Endangered
Species Act claim regarding take of Southern California Steelhead. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1. The district court properly held that the National Marine Fisheries
Service (“NMFS”) and other regulatory agencies were not necessary parties under
Federal Rule of Civil Procedure 19(a)(1). The district court was careful to structure
the injunction to provide relief to Wishtoyo without requiring the agencies’
participation in the case. See Fed. R. Civ. P. 19(a)(1)(A).
United points to one sentence of the injunction providing that “NMFS shall
respond promptly to a request for . . . assistance” when stranded fish need to be
hauled or handled. In the context of the order as a whole, we do not read the
district court’s use of the word “shall” as ordering NMFS to take certain action but
rather as recognizing that the agency can be expected to respond promptly when
fish are stranded.
NMFS and the other regulatory agencies also have not claimed an interest
relating to the subject of the action. See Fed. R. Civ. P. 19(a)(1)(B); Roberts v. City
of Fairbanks, 947 F.3d 1191, 1204–05 (9th Cir. 2020).
2. The district court did not err in relying on NMFS’s incidental take
statement in the biological opinion as one source of evidence that United’s
operations were taking steelhead. The incidental take statement explained that
“[o]perating the Vern Freeman Diversion Dam, even with the reasonable and
prudent alternative, is expected to cause incidental take of the endangered Southern
California DPS of steelhead,” and it specified the nature of the takes that were
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expected. This “expected” language demonstrates that NMFS considered that takes
of steelhead are “reasonably certain” to occur. Defs. of Wildlife v. Bernal, 204 F.3d
920, 925 (9th Cir. 2000). We therefore need not decide whether it would be proper
to rely on a less definite incidental take statement as evidence of take in a citizen
suit under section 9 of the Endangered Species Act, 16 U.S.C. § 1538(a)(1)(B).
3. The district court did not abuse its discretion in admitting into
evidence NMFS’s biological opinion and the testimony of NMFS officials. The
introduction of the biological opinion was proper under the public records
exception to the hearsay rule. Fed. R. Evid. 803(8). The district court relied on the
biological opinion as one data point among others, not to establish United’s
liability. The NMFS officials were asked to testify by the district court; they were
not expert witnesses for Wishtoyo who had not been disclosed. See Fed. R. Evid.
614(a).
4. United does not challenge the district court’s award of attorney’s fees
and costs to Wishtoyo except to request that this court vacate the fee award if it
vacates the judgment. Because we affirm the judgment, we do not vacate the fee
award.
5. We deny Wishtoyo’s motion for leave to file a surreply (Dkt. 41) and
deny as moot Wishtoyo’s motion to strike United’s response to the proposed
surreply (Dkt. 46). The district court’s findings of fact and conclusions of law did
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not rely upon the trial exhibits at issue; nor do we. So there is no need, for purposes
of this appeal, to clarify whether they were admitted.
The judgment is AFFIRMED.
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