NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WISHTOYO FOUNDATION; CENTER 

FOR BIOLOGICAL DIVERSITY; 

VENTURA COASTKEEPER, a Program of 

Wishtoyo Foundation, 

Plaintiffs-Appellees, 

 v. 

UNITED WATER CONSERVATION 

DISTRICT, 

Defendant-Appellant.

No. 19-55380 

D.C. No. 

2:16-cv-03869-DOC-PLA 

MEMORANDUM*

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.

FILED

FEB 26 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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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.