author: N.R. SMITH, Circuit Judge:

text:
    SAN LUIS & DELTA-MENDOTA WATER AUTHORITY; Westlands Water District, Plaintiffs-Appellees, v. Kevin HAUGRUD, as Acting Secretary of the U.S. Department of the Interior; U.S. Department of the Interior; U.S. Bureau of Reclamation; David Murillo, as Acting Commissioner, Bureau of Reclamation, U.S. Department of the Interior; David Murillo, as Regional Director, Mid-Pacific Region, Bureau of Reclamation, U.S. Department of the Interior, Defendants, Pacific Coast Federation of Fishermen’s Associations; Institute for Fisheries Resources; Yurok Tribe, Intervenor-Defendants, and Hoopa Valley Tribe, Intervenor-Defendant-Appellant. San Luis & Delta-Mendota Water Authority; Westlands Water District, Plaintiffs-Appellees, v. Kevin Haugrud, as Acting Secretary of the U.S. Department of the Interior; U.S. Department of the Interior; U.S. Bureau of Reclamation; David Murillo, as Acting Commissioner, Bureau of Reclamation, U.S. Department of the Interior; David Murillo, as Regional Director, Mid-Pacific Region, Bureau of Reclamation, U.S. Department of the Interior, Defendants-Appellants, and Hoopa Valley Tribe; Pacific Coast Federation of Fishermen’s Associations; Institute for Fisheries Resources; Yurok Tribe, Intervenor-Defendants. San Luis & Delta-Mendota Water Authority; Westlands Water District, Plaintiffs-Appellees, v. Kevin Haugrud, as Acting Secretary of the U.S. Department of the Interior; U.S. Department of the Interior; U.S. Bureau of Reclamation; David Murillo, as Acting Commissioner, Bureau of Reclamation, U.S. Department of the Interior; David Murillo, as Regional Director, Mid-Pacific Region, Bureau of Reclamation, U.S. Department of the Interior, Defendants, Hoopa Valley Tribe; Pacific Coast Federation of Fishermen’s Associations; Institute for Fisheries Resources, Intervenor-Defendants, and Yurok Tribe, Intervenor-Defendant-Appellant. San Luis & Delta-Mendota Water Authority; Westlands Water District, Plaintiffs-Appellants, v. Kevin Haugrud, as Acting Secretary of the U.S. Department of the Interior; U.S. Department of the Interior; U.S. Bureau of Reclamation; David Murillo, as Acting Commissioner, Bureau of Reclamation, U.S. Department of the Interior; David Murillo, as Regional Director, Mid-Pacific Region, Bureau of Reclamation, U.S. Department of the Interior, Defendants-Appellees, Hoopa Valley Tribe; Yurok Tribe; Pacific Coast Federation of Fishermen’s Associations; Institute for Fisheries Resources, Intervenor-Defendants-Appellees.
    No. 14-17493, No. 14-17506, No. 14-17515, No. 14-17539
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted December 12, 2016, San Francisco, California
    Filed February 21, 2017
    Corrected March 23, 2017

      Daniel J. O’Hanlon (argued), Rebecca R. Akroyd, and Elizabeth L. Leeper, Kronick Moskovitz Tiedemann & Girard, Sacramento, California; Steven O. Sims and Dul-cinea Z. Hanuschak, Brownstein Hyatt Farber Schreck LLP, Denver, Colorado; for Plaintiffs-Appellees/Cross-Appellants San Luis & Delta-Mendota Water Authority and Westlands Water District.
    Ellen J. Durkee (argued), Bradley H. Oliphant, and Anna K. Stimmel, Attorneys; John C. Cruden, Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Stephen Palmer, Office of the Regional Solicitor, Department of the Interior, Sacramento, California; Carter Brown, Office of the Solicitor, Department of the Interior, Washington, D.C.; for Defendants-Appellants/Cross-Appellees Kevin Haugrud, U.S. Department of the Interior, U.S. Bureau of Reclamation, and David Murillo.
    Thomas P. Schlosser • (argued) and Thane D. Somerville, Morisset Schlosser Jozwiak & Somerville APC, Seattle, Washington, for Intervenor-Defendant-Appel-lant/Cross-Appellee Hoopa Valley Tribe.
    Amy Cordalis and Nathan Voegeli, General Counsel, Yurok Tribe, Klamath, California; Daniel I.S.J. Rey-Bear, Nordhaus Law Firm LLP, Spokane, Washington; for Intervenor-Defendant-Appellant/Cross-Appellee Yurok Tribe.
    Jan E. Hasselman, Earthjustiee, Seattle, Washington, for Intervenor-Defendants Pacific Coast Federation of Fishermen’s Associations, and Institute of Fisheries Resources.
    Before: ALEX KOZINSKI and N. RANDY SMITH, Circuit Judges, and SHARON L. GLEASON, District Judge.

       Kevin Haugrud and David Murillo are substituted for their predecessors, Sally Jewell and Michael L. Connor, as Acting Secretary of the U.S. Department of the Interior and Acting Commissioner, Bureau of Reclamation, pursuant to Fed. R. App. P. 42(c)(2).

       The Honorable Sharon L. Gleason, United States District Judge for the District of Alaska, sitting by designation.

   OPINION

N.R. SMITH, Circuit Judge:

In late summer 2013, the Bureau of Reclamation (“BOR”) released Trinity River water from the Lewiston Dam, above and beyond the amount designated in the applicable water release schedule (a schedule that was devised to benefit only the Trinity River basin). That water flowed down the Trinity River and into the lower Klamath River, where winter-run salmon were beginning their migration upriver to their spawning grounds. BOR released the water to help prevent a mass die-off of these salmon in the lower Klamath, which are threatened when the Klamath River runs low. BOR asserted that the Act of August 12, 1955, (“1955 Act”) gave it the power to release this extra water. The 1955 Act “authorized and directed” the Secretary of the United States Department of the Interior (“DOI”) “to adopt appropriate measures to insure the preservation and propagation of fish and wildlife.” We agree with BOR. The broad language of this clause gave BOR the authority to implement the 2013 water release.

In implementing the 2013 water release, BOR also did not violate the Central Valley Project Improvement Act or California water law (and correspondingly the Reclamation Act of 1902, which requires agencies to comply with state water law), as alleged by Cross-Appellants San Luis & Delta-Mendota Water Authority and Westlands Water District. Finally, Cross-Appellants lack standing to pursue their Endangered Species Act claim.

BACKGROUND

I.

The Trinity River begins in the Trinity Alps of Northern California. The river runs south and then wends its way northwest, picking up tributaries along the way. It eventually flows into the Klamath River at the town of Weitchpec. The water then flows approximately forty-four additional miles down the lower Klamath before entering the Pacific Ocean.

The Trinity River was once known for its abundant populations of salmon and steelhead. Before the construction of dams on the Trinity, up to 75,000 fall-run Chinook salmon are estimated to have migrated from the Pacific Ocean to the North Fork of the Trinity River each year. The Yurok and Hoopa Valley Indian Tribes (living along the Klamath and Trinity Rivers) have relied on the fish as their primary dietary staple. In recognition of the Tribes’ rights to harvest these fish, the federal government established reservations for the Tribes in the mid-1800s that endure to this day. The Trinity River bisects the Hoopa Valley Reservation, and the lower Klamath River bisects the Yurok Reservation.

At the same time, water management has always been a central concern for the state of California. For as long as it has been a state, California has adopted laws to manage its water resources. In the early 1920s, California began drafting a comprehensive, statewide water plan. California recognized that, while most of its water resources were located in the northern part of the state, the majority of the demand came from the state’s southern regions. In addition, the population’s demand for water did not align with the seasonal rainfalls and snow melt. With its statewide plan, California hoped to control salinity and flooding, while managing the storage and distribution of water. One of the primary goals of the plan was to transfer water from the Sacramento River to the San Joaquin Valley and from the San Joaquin River to the southern regions of the Central Valley, the heart of California’s farmland. In 1933, the California'Legislature authorized this statewide plan, known as the Central Valley Project (“CVP”). Because the state was unable to fully fund the plan, the United States took over in 1935. Construction of what would become the largest federally managed water project began in 1937. See generally San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 594 (9th Cir. 2014); Cent. Delta Water Agency v. United States, 306 F.3d 938, 943 (9th Cir. 2002); United States v. State Water Res. Control Bd., 182 Cal.App.3d 82, 227 Cal.Rptr. 161, 166 (1986); Eric A. Stene, The Central Valley Project, Bureau of Reclamation (last updated Aug. 4, 2015), https://www.usbr.gov/ history/cvpintro.html.

California’s statewide water plan originally included plans to divert water from the Trinity River to the Central Valley. Although these initial plans were abandoned before the CVP was authorized, Congress began re-investigating the possibility in the 1940s. During this investigation, DOI estimated that more than 1.1 million acre-feet of water flowed from the upper Trinity River basin each year. Reports suggested that only 120,500 acre-feet of water were needed to maintain the fishery resources of the Trinity and Lewiston Rivers. These reports also suggested that the construction of dams on the Trinity would actually help the fishery resources. Congress ultimately concluded that 700,-000 acre-feet of the Trinity’s annual flow was being lost to the Pacific Ocean and could be diverted to the Central Valley without harming the Trinity or lower Kla-math Rivers. Accordingly, in 1955, Congress authorized the construction of the Trinity River division (“TRD”), an addition to the CVP in Northern California. Act of Aug. 12, 1955, Pub. L. No. 84-386 § 1, 69 Stat. 719, 719 (1955). The purpose of the TRD was to divert water from the Trinity River to the Sacramento River “for irrigation and other beneficial uses in the Central Valley.” Id. Nevertheless, Congress designed the TRD “with a view to maintaining and improving fishery conditions,” which were an important asset to “the whole north coastal area.” H.R. Rep. No. 84-602, at 4 (1955). Accordingly, in the 1955 Act, Congress specifically directed the Secretary of DOI to preserve and propagate fish and wildlife. § 2, 69 Stat. at 719.

Under the authority granted by the 1955 Act, BOR constructed two dams along the Trinity River: the Trinity and the Lewi-ston. The Trinity Dam blocks water flowing from the upper Trinity River, and several other tributaries, and forms Trinity Reservoir. After passing through Trinity Dam, water flows approximately eight miles downstream before reaching Lewi-ston Dam, which forms Lewiston Reservoir. At Lewiston Dam, the water either continues flowing down the Trinity River, or BOR diverts it toward the Sacramento River (via the Clear Creek Tunnel) for use in the CVP. If diverted, the water passes through several additional dams before reaching the Sacramento River. Water that is not diverted at the Lewiston Dam continues to flow down the Trinity River. As it did before the dams were constructed, the water eventually passes through the Hoopa Valley Indian Reservation and into the Klamath River at the town of Weitchpec. The water then flows approximately forty-four miles down the lower Klamath and through the Yurok Indian Reservation until it reaches the Pacific Ocean.

The TRD became fully operational in 1964. For the next ten years, BOR diverted an average of 88 percent of Trinity River annual inflow to the Sacramento River basin.

II.

The construction and operation of the TRD had devastating effects on the Trinity River environment and fish populations. Westlands Water Dist. v. U.S. Dep’t of Interior, 376 F.3d 853, 862 (9th Cir. 2004). The dams blocked significant upstream fish habitat. Id. The low flows caused the Trinity River to narrow and the banks to steepen, resulting in increasingly fast and uniform water velocities. Id. These effects destroyed resting pools and vital spawning grounds. Id. Within a decade, the TRD had significantly diminished the salmon and steelhead populations in the Trinity River. Id. at 861-62.

A.Trinity River Basin Fish and Wildlife Task Force

In response to the effects of the TRD, the Trinity River Basin Fish and Wildlife Task Force (“TRBFW Task Force” or “Task Force”) formed in the early 1970s. The Task Force was comprised of federal, state, and local agencies. It studied the impact of the TRD and it worked to develop a plan for the long-term management of the fish population and habitat in the Trinity River basin.

B.Secretarial Decision of 1981

In the late 1970s and early 1980s, in recognition and support of the Task Force, the Fish and Wildlife Service (“FWS”), the Bureau of Indian Affairs, and the Water and Power Resources Service studied the effects of increased water releases from the Lewiston Dam into the Trinity River. The agencies drafted an Environmental Impact Statement (“EIS”) that considered eight alternative water release schedules. The agencies agreed that the best alternative was to begin water releases from the Lewiston Dam at 287,000 acre-feet annually, and incrementally increase this flow to 340,000 acre-feet annually in normal years. BOR would release less water in dry years. The agencies also agreed to study and draft a report on the effect of restoration flows during the first twelve years of the revised flow releases (“Trinity River Flow Evaluation Study”). In 1981, then-Secretary of the Interior, Cecil Andrus, gave legal effect to this agreement in a Secretarial Decision.

C.Trinity River Basin Fish and Wildlife Management Act of 198k

In 1984, Congress passed the Trinity River Basin Fish and Wildlife Management Act (“1984 Act”). Pub. L. No. 98-541, 98 Stat. 2721 (1984). The 1984 Act directed the Secretary to “formulate and implement a fish and wildlife management program for the Trinity River Basin designed to restore the fish and wildlife populations” to pre-TRD levels. Id. § 2, 98 Stat. at 2722. The 1984 Act also officially recognized the TRBFW Task Force. Id. § 3, 98 Stat. at 2722-23.

D.Central Valley Project Improvement Act

In 1992, Congress enacted the Central Valley Project Improvement Act (“CVPIA”). Pub. L. No. 102-575 §§ 3401-12, 106 Stat. 4600, 4706-31 (1992). Among other things, the CVPIA sought “to protect, restore, and enhance fish, wildlife, and associated habitats in the Central Valley and Trinity River basins,” while also seeking “to achieve a reasonable balance among competing demands for use of Central Valley Project water.” Id. § 3402(a), (f), 106 Stat. at 4706.

Section 3406(b)(23) (at issue here), provided for water releases “to the Trinity River of not less than 340,000 acre-feet per year” from 1992 through 1996. 106 Stat. at 4720. It also directed DOI to “complete the Trinity River Flow Evaluation Study” (required by the 1981 Secretarial Decision) by September 30, 1996. Id. § 3406(b)(23)(A), 106 Stat. at 4720. DOI was to complete the study “in a manner which insures the development of recommendations, based on the best available scientific data, regarding permanent instream fishery flow requirements.” Id. If the Secretary of the Interior and the Hoopa Valley Tribe agreed on the study’s recommendations, then the recommendations were to “be implemented accordingly.” Id. § 3406(b)(23)(B), 106 Stat. at 4720-21. “If the Hoopa Valley Tribe and the Secretary [did] not concur, the minimum Trinity River instream fishery releases established under [section 3406(b)(23) were to] remain in effect unless increased by an Act of Congress, appropriate judicial decree, or agreement between the Secretary and the Hoopa Valley Tribe.” Id.

E.Trinity River Basin Fish and Wildlife Management Reauthorization Act

In 1996, Congress enacted the Trinity River Basin Fish and Wildlife Management Reauthorization Act (“1996 Reau-thorization Act”), which amended the 1984 Act and “extended] for three years the availability of moneys for the restoration of fish and wildlife in the Trinity River.” Trinity River Basin Fish and Wildlife Management Reauthorization Act of 1995, Pub. L. No. 104-143, 110 Stat. 1338, 1338 (1996). The 1984 Act had provided for “[t]he design, construction, operation, and maintenance of facilities to ... rehabilitate fish habitats in the Trinity River between Lewiston Dam and Weitchpec.” § 2(a)(1)(A), 98 Stat. at 2722. Among other things, the 1996 Reauthorization Act replaced “Weitchpec” with, ‘Weitchpec and in the Klamath River downstream of the confluence with the Trinity River.” § 3(b), 110 Stat. at 1339.

F.The 2000 Record of Decision

As directed by the 1981 Secretarial Decision and CVPIA section 3406(b)(23)(A), FWS biologists conducted flow evaluation studies annually from 1983 to 1994. In June of 1999, FWS and the Hoopa Valley Tribe released the Final Report for the Trinity River Flow Evaluation Study. A few months later, BOR, the Hoopa Valley Tribe, FWS, and Trinity County issued a Draft Trinity River Mainstem Fishery Restoration Environmental Impact Statement/Report. The EIS “addresse[d] the environmental issues, alternatives, and impacts associated with restoration of the natural production of anadromous fish on the Trinity River mainstem downstream of Lewiston Dam.” The EIS identified and analyzed four alternative actions and identified a “Preferred Alternative.” In a Record of Decision (“2000 ROD”), DOI adopted the Preferred Alternative, finding it to be the “action which best meets the statutory and trust obligations [to the Hoopa Valley and Yurok Tribes] of the Department to restore and maintain the Trinity River’s anadromous fishery resources.”

Under the Preferred Alternative, BOR would, among other things, release a designated amount of water from the Lewi-ston Dam into the Trinity River each year, based on that year’s hydrology. This amount would range from 369,000 acre-feet in critically dry years to 815,000 acre-feet in extremely wet years.

III.

In September 2002, two fish pathogens, Ich and Columnaris, caused approximately 34,000 fish to die in the Klamath River. These pathogens are normally present in the river, but a combination of factors caused the pathogens to proliferate and become lethal. The low river flow that year was not attractive to migrating adult salmon, so the salmon congregated in the warm waters of the lower Klamath River. The low flows, warm water temperatures, and high density of fish triggered an epizootic of Ich and Columnaris that spread throughout the fish population.

In April 2003, Judge Oliver Wanger of the Eastern District of California issued an order permitting BOR to release 50,000 additional acre-feet of water from the Lewiston Dam (above the annual instream flow release set by the 2000 ROD) to reduce the likelihood of a recurrence of the 2002 fish die-off. To ensure that this “flow augmentation release” would have no impact on the CVP water users, BOR entered into an agreement with the Metropolitan Water District of Los Angeles to exchange water from the Trinity Reservoir for non-CVP deliveries. In August 2003, BOR notified the Eastern District of California of its plan to release 33,000 acre-feet of water from the Lewiston Dam as a preventative measure, while holding the additional 17,000 acre-feet of water in case an emergency release was needed.

In 2004, BOR notified the Eastern District of California of its plan to release an additional 36,300 acre-feet of water in late summer, again to prevent another fish die-off. BOR had 11,313 acre-feet of water left over from its 2003 exchange with the Metropolitan Water District of Los Angeles. BOR also purchased 25,000 acre-feet of water from willing sellers in the Sacramento River Water Contractors Association to cover the remaining water needed for the 2004 flow augmentation release.

Over the next eight years, conditions improved such that BOR did not find it necessary to augment the river flow. Then, in 2012, BOR predicted that the fall-run of adult salmon in the Klamath basin would be incredibly large (the largest since it began keeping records in 1978), while the flows in the Klamath River would be relatively low. Accordingly, in order to prevent another potential fish die-off, BOR studied and proposed a flow augmentation release of an additional 48,000 acre-feet from the Lewiston Dam. BOR drafted an Environmental Assessment (“EA”) and a Finding of No Significant Impact (“FONSI”), concluding that an EIS was not required because the flow augmentation release would not significantly impact the quality of the human environment. In the Final EA for the 2012 flow augmentation release, BOR stated that the 1955 Act “provide[d] the principle authorization for implementing” the release. BOR ultimately released an additional 39,000 acre-feet of water in 2012.

In 2013, BOR proposed releasing an additional 62,000 acre-feet of water from the Lewiston Dam in the late summer to reduce the likelihood of a mass fish die-off in the lower Klamath River. The agency drafted an EA and a FONSI for the proposed release, again concluding that an EIS was not required. On August 6, 2013, BOR issued the Final EA and FONSI for the 2013 flow augmentation release. BOR also concluded again in its Final EA for the 2013 flow augmentation release that the 1955 Act “provide[d] the principal authorization” for the release. Due in part to the current legal action, BOR ultimately released only 17,500 acre-feet during the 2013 flow augmentation release.

IV.

San Luis & Delta-Mendota Water Authority is an agency comprised of local water districts in central California that hold contracts for CVP water. Westlands Water District is a member of this joint agency (collectively “the Water Contractors”). On August 7, 2013, the day following BOR’s issuance of the Final EA and FONSI for the 2013 flow augmentation release, the Water Contractors filed suit against BOR, DOI, and several individuals working within these agencies (“Federal Defendants”). Two days later, the Water Contractors filed a motion for a temporary restraining order and a preliminary injunction to halt the 2013 flow augmentation release, which was scheduled to take place between August 15 and September 21, 2013. The Hoopa Valley Tribe, the Yurok Tribe, the Pacific Coast Federation of Fishermen’s Association, and the Institute for Fisheries Resources promptly moved to intervene, and the district court permitted them to intervene as defendants. On August 13, 2013, the district court temporarily “enjoin[ed] the Federal Defendants from making releases from Lewiston Dam to the Trinity River in excess of 450 cubic feet per second for fishery purposes through and including August 16, 2013.” However, after holding a hearing on the matter, the district court lifted this temporary restraining order and denied the motion for preliminary injunction.

The Water Contractors filed an amended complaint on October 4, 2013, alleging that Federal Defendants violated the following four statutes in implementing the 2012 and 2013 flow augmentation releases: (1) the Endangered Species Act (“ESA”); (2) the National Environmental Protection Act (“NEPA”); (3) CVPIA § 3411(a) and 43 U.S.C., § 383; and (4) CVPIA § 3406(b)(23). Several months later, the parties filed cross-motions for summary judgment.

On October 1, 2014, the district court issued a Memorandum Decision resolving these motions as follows: (1) the Water Contractors lacked standing to bring their ESA claim; (2) the NEPA claim was moot; (3) the 2013 flow augmentation release did not violate CVPIA § 3411(a) or 43 U.S.C. § 383; and (4) the 2013 flow augmentation release did not violate CVPIA § 3406(b)(23) or the 2000 ROD. San Luis & Delta-Mendota Water Auth. v. Jewell, 52 F.Supp.3d 1020, 1069-70. (E.D. Cal. 2014). Accordingly, the district court granted summary judgment in favor of Federal Defendants on all four claims in the first amended complaint. Id. However, the district court also concluded that the 1955 Act did “not provide authorization for Federal Defendants to implement the 2013 flow augmentation release[ ] to benefit fish in the lower Klamath.” Id. at 1070.

Federal Defendants and the Hoopa Valley and Yurok Tribes filed timely notices of appeal of the district court’s ruling regarding the 1955 Act. Shortly thereafter, the Water Contractors filed a timely notice of cross-appeal of all claims except the NEPA claim.

STANDARD OF REVIEW

We review a district court’s grant of summary judgment de novo. San Luis & Delta-Mendota Water Auth. v. United States, 672 F.3d 676, 699 (9th Cir. 2012). We also review de novo a “district court’s interpretation and application of federal statutes” and its conclusions on a party’s standing to sue. Id.

The Administrative Procedure Act (“APA”) governs the review of a challenge to an agency’s action brought under a federal statute that “contains no provision for judicial review.” Id. (citing United States v. Bean, 537 U.S. 71, 77, 123 S.Ct. 584, 154 L.Ed.2d 483 (2002) (“[I]n the absence of a statutorily defined standard of review for [an agency’s] action under [a federal statute], the APA supplies the applicable standard.”)). Neither the CVPIA nor the Reclamation Act (43 U.S.C. § 383) includes such a provision. Id.; Wild Fish Conservancy v. Jewell, 730 F.3d 791, 796 (9th Cir. 2013) (“[T]he Reclamation Act does not create a private right of action.”). Thus, the APA governs our review of the Water Contractors’ challenges brought under these statutes. We review de novo a district court’s application of the APA standards. Pyramid Lake Paiute Tribe of Indians v. U.S. Dep’t of the Navy, 898 F.2d 1410, 1414 (9th Cir. 1990).

We first address Federal Defendants’ argument that BOR had the authority to implement the 2013 flow augmentation release under the 1955 Act. The flow augmentation release may be set aside under the APA if it is “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(C). We then address whether BOR violated any other statute raised by the Water Contractors. Under the APA, the panel also may set aside BOR’s actions if they were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” § 706(2)(A). Under this standard, we must consider “if the agency has articulated a rational connection between the facts found and the conclusions made.” Pac. Coast Fed’n of Fishermen’s Ass’ns v. U.S. Bureau of Reclamation, 426 F.3d 1082, 1090 (9th Cir. 2005) (citing Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)).

ANALYSIS

I. The 1955 Act

We begin our analysis by addressing whether the 1955 Act authorized BOR to release additional water from the Lewiston Dam to protect fish populations in the lower Klamath River. It is well settled “that the starting point for interpreting a statute is the language of the statute itself.” Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980).

Section 2 of the 1955 Act states, in full: Subject to the provisions of this Act, the operation of the Trinity River division shall be integrated and coordinated, from both a financial and an operational standpoint, with the- operation of other features of the Central Valley project, as presently authorized and as may in the future be authorized by Act of Congress, in such manner as will effectuate the fullest, most beneficial, and most economic utilization of the water resources hereby made available: Provided, That the Secretary is authorized and directed to adopt appropriate measures to insure the preservation and propagation of fish and wildlife, including, but not limited to, the maintenance of the flow of the Trinity River below the diversion point at not less than one hundred and fifty cubic feet per second for the months July through November and the flow of Clear Creek below the diversion point at not less than fifteen cubic feet per second unless the Secretary and the California Fish and Game Commission determine and agree that lesser flows would be adequate for maintenance of fish life and propagation thereof; the Secretary shall also allocate to the preservation and propagation of fish and wildlife, as provided in the Act of August 14, 1946 (60 Stat. 1080), an appropriate share of the costs of constructing the Trinity River development and of operating and maintaining the same, such costs to be non-reimbursable: Provided further, That not less than 50,000 acre-feet shall be released annually from the Trinity Reservoir and made available to Humboldt County and downstream water users.

69 Stat. at 719-20 (bold emphasis added). We perceive no ambiguity in the language regarding the preservation and propagation mandate contained in section 2. This expansive clause, directing the Secretary to adopt any “appropriate measures,” contains no limiting language, geographic or otherwise. The absence of limiting language indicates Congress intended to delegate broad authority to the Secretary, allowing the Secretary substantial discretion to determine what constitutes “appropriate measures” in the face of unforeseen or changing circumstances. See H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 245, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989) (“Congress’ decision not explicitly to limit RICO’s broad terms strongly implies that Congress had in mind no such narrow and fixed idea of what constitutes a [RICO] pattern as that suggested by amici here.”); John v. United States, 247 F.3d 1032, 1043-44 (9th Cir. 2001) (en banc) (Tallman, J. concurring in judgment)(per curiam); cf. Diamond v. Chakrabarby, 447 U.S. 303, 316, 100 S.Ct. 2204, 65 L.Ed.2d 144 (1980) (“Congress employed broad general language in drafting § 101 precisely because such inventions are often unforeseeable.”).

Congress wanted to, and thought it could, maintain the rivers and their fish populations below the TRD while diverting substantial inflow to the Sacramento River. H.R. Rep. No. 84-602, at 4-5 (1955) (“[T]here is available for importation from the Trinity River water that is surplus to the present and future water requirements of the Trinity and Klamath River Basins.”); S. Rep. No. 84-1154, at 5 (1955). Congress knew the Trinity River was the largest tributary of the Klamath and was aware that any effect on the Trinity, including water flows and water temperature, could ripple down to the Klamath. However, Congress was not sure what these effects would be. So, to account for unintended consequences, Congress used general language, with no geographic limitation, to empower the Secretary to take any measures it found necessary to preserve all fish and wildlife at any point downstream of the Trinity and Lewiston Dams. H.R. Rep. No. 84-602, at 4. (“[T]he [TRD] has been planned with a view to maintaining and improving fishery conditions.”). In fact, the House and Senate endorsed the 1955 Act before final studies to determine the “future water requirements in the Klamath River Basin” were completed, because it believed the “relatively small” diversion would not harm the fishery resources, and the Secretary retained the power to take measures to preserve and propagate fish and wildlife if need be. Id. at 4-5; S. Rep. No. 84-1154, at 5.

Further, to avoid the ambiguities of establishing causation, Congress omitted any requirement that the threat to fish or wildlife be caused directly by the TRD. Thus, the general language of the preservation and propagation mandate gives the Secretary wide discretion in defining “appropriate measures” and expands the statute beyond the “principal evil Congress was concerned with when it” passed the 1955 Act. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79-80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (holding that Title VII, which prohibits discrimination “because of sex,” covers same-sex harassment, even though that was not “the principal evil Congress was concerned with when it enacted Title VII”). Thus, even if Congress, when it enacted the 1955 Act, did not contemplate a mass fish die-off in the lower Klamath or the flow augmentation release BOR implemented to prevent it, we still must interpret the general language of the preservation and propagation mandate as authorizing the release. BOR unquestionably implemented the flow augmentation release to protect the fish population downstream of the Lewiston Dam. This measure, and the evil it sought to prevent, fall well within the statute’s mandate. See id. (“[I]t is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”).

The “including, but not limited to,” language also indicates Congress’s intent to provide a broad — not ambiguous — directive. Courts have long recognized that “the term ‘including’ is not one of all-embracing definition, but connotes simply an illustrative application of the general principle.” Fed. Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100, 62 S.Ct. 1, 86 L.Ed. 65 (1941) (citations omitted). Congress identified the maintenance of a minimum flow from the Lewiston Dam as one exemplary “appropriate measure” to preserve fish and wildlife downstream from the Dam. Congress expected the Secretary to adopt other measures, including water releases above the minimum flow rate, to preserve fish and wildlife when necessary, using the minimum flow rate as a guiding directive.

Our interpretation is further buttressed by the fact that the broad preservation and propagation clause is juxtaposed with other, very precise directives. For example, section 2 specifically states, “[t]hat not less than 50,000 acre-feet shall be released annually from the Trinity Reservoir and made available to Humboldt County and downstream water users.” Act of Aug. 12, 1955, § 2, 69 Stat. at 720. Congress had the ability to clearly define what does and does not constitute “appropriate measures,” but it did not. For over six decades thereafter, Congress has also declined to cabin or clarify this term. We presume that Congress’s decision to “paint[ ] with a broader brush” in the preservation and' propagation mandate was deliberate. United States v. Alexander, 725 F.3d 1117, 1121 (9th Cir. 2013) (comparing statutes in which Congress has broadly and specifically defined terms).

The Water Contractors argue that flow augmentation releases are not an “appropriate measure,” because they did not serve the principal purpose of the 1955 Act — that is, to provide water for the Central Valley. This position ignores the emphasized “Provided,” with which the preservation and propagation mandate begins. Such a proviso is intended “to except something from the enacting clause, or to qualify and restrain its generality and prevent misinterpretation.” United States v. Morrow, 266 U.S. 531, 534, 45 S.Ct. 173, 69 L.Ed. 425 (1925); see also Pennington v. United States, 48 Ct.Cl. 408, 412 (1913) (explaining that provisos “tak[e] special cases out of the general enactments and provid[e] specially for them”). Although section 2 generally requires that the TRD be operated such that the water is put to the “fullest, most beneficial, and most economic” use, the proviso specifically excepts measures to ensure the preservation and propagation of fish and wildlife. Thus, the measures to protect and preserve wildlife need not harmonize with the 1955 Act’s principal purpose.

The Water Contractors next argue that CVPIA section 3406(b)(23), and the 2000 ROD implementing its directives, finally and permanently resolved how much water should be released from the Lewiston Dam down the Trinity River. Thus, the Water Contractors argue that the CVPIA repealed or amended the 1955 Act such that “appropriate measures” to protect fish and wildlife can no longer include additional releases of water from the Lewiston Dam.

It is true that, in interpreting the 1955 Act, we must consider the related legislation that Congress subsequently enacted. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 143, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000). But, we conclude that the later legislation and administrative actions identified by the Water Contractors did not limit or repeal the 1955 Act. First, we do not hold that a statute has been repealed by a subsequent act unless Congress’s intention is “clear and manifest.” Moyle v. Dir., Office of Workers’ Comp. Programs, 147 F.3d 1116, 1120 (9th Cir. 1998) (emphasis omitted) (quoting Kee Leasing Co. v. McGahan (In re the Glacier Bay), 944 F.2d 577, 581 (9th Cir. 1991)). There is no indication in the 1984 Act or CVPIA section 3406(b)(23) of a “clear and manifest” intention to repeal or amend the 1955 Act.

Second, the general authority granted by the 1955 Act was not repealed or replaced by the 1984 Act or CVPIA section 3406(b)(23), because these later legislative acts implemented specific programs to address particular problems that had been brought to Congress’s attention. The implementation of a specific program does not nullify an agency’s pre-existing discretionary authority. Thus, the implementation of a fish management or restoration program did not abrogate the need to continually protect fish and wildlife in the face of unforeseen harm.

Finally, the Water Contractors argue that the 2013 flow augmentation release would have been permissible if BOR had “pm-chased additional water to protect Central Valley uses,” as BOR did in 2003 and 2004. But this argument is at direct odds with the Water Contractors’ position that the 2000 ROD placed an absolute cap on the water that BOR can release down the Trinity River from the Lewiston Dam. In addition, BOR need not protect the economic interests of Central Valley water contractors when it implements measures to preserve the fish and wildlife downstream of the Lewiston Dam.

The broad language of the 1955 Act authorized BOR to implement the 2013 flow augmentation release — an appropriate measure — to protect fish downstream from the Lewiston Dam, which includes the lower Klamath River. Further, subsequent legislation did not clearly alter or limit the expansive scope of the authority granted by the 1955 Act. Thus, BOR acted within its “statutory ... authority,” 5 U.S.C. § 706(2)(C), and we must reverse the district court on this issue.

II. CVPIA § 3406(b)(23)

We next consider whether the 2013 flow augmentation release violated CVPIA section 3406(b)(23).

Section 3406(b)(23) directed DOI to propose and adopt a permanent water release schedule for the Lewiston Dam. DOI went through the necessary procedural steps section 3406(b)(23) called for and, in the 2000 ROD, DOI established a permanent water release schedule that accounted for changes in the area’s annual hydrology. The parties agree this schedule sets both a minimum and a maximum amount of water that BOR may release under the authority granted by section 3406(b)(23) and the 2000 ROD. The Water Contractors argue that this schedule sets an absolute maximum and that the 2012 and 2013 flow augmentation release impermissibly exceeded this cap.

Again, we start our analysis with the text of the CVPIA. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 56, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). The plain language of the statute indicates that Congress intended the permanent water release schedule to serve only the Trinity River. Section 3406(b)(23) makes multiple references to the Trinity River and does not contain any reference to the Klamath River. For example, section 3406(b)(23) established an interim “release of water to the Trinity River of not less than three hundred and forty thousand acre-feet per year,” and called for a permanent schedule of “Trinity River in-stream fishery releases.” Id.

In addition, the statute provides that the directives of section 3406(b)(23) were meant to “meet Federal trust responsibilities to protect the fishery resources of the Hoopa Valley Tribe, and to meet the fishery restoration goals of the Act of October 24, 1984.” Congress’s citation to the 1984 Act is significant. The 1984 Act, as originally adopted, called for rehabilitation of fish habitat in the “Trinity River between Lewiston Dam and Weitehpec” and “in tributaries of such river below Lewiston Dam and in the south fork of such river.” § 2(a)(l)(A)-(B), 98 Stat. at 2722.. Congress amended the 1984 Act in the 1996 Reauthorization Act, 110 Stat. 1338, which altered the scope of the 1984 Act’s rehabilitation mandate to include “the Klamath River downstream of the confluence with the Trinity River,” § 3(b), 110 Stat. at 1339. Thus, the 1984 Act originally did not intend to cover “the Klamath River downstream of the confluence with the Trinity River.” As the district court found, we conclude the reference to the specific goal of the 1984 Act was a reference to a “limited and particular provision[] of another statute,” which does not incorporate subsequent amendments to that statute. Pearce v. Dir., Office of Workers’ Comp. Programs, U.S. Dep’t of Labor, 603 F.2d 763, 767 (9th Cir. 1979) (quoting Dir., Office of Workers’ Comp. Programs, U.S. Dep’t of Labor v. Peabody Coal Co., 554 F.2d 310, 322 (7th Cir. 1977)) (explaining the difference between a “specific reference” and a “general reference”). Accordingly, the reference to the 1984 Act in the CVPIA (which was enacted in 1992) does not include the 1996 amendment. Section 3406(b)(23) of the CVPIA is thus limited to the Trinity River basin and does not cover the lower Klamath.

We also find significant section 3406(b)(23)’s reference to the Hoopa Valley Tribe — and its exclusion of all other tribes. The Hoopa Valley Reservation is within the Trinity River basin. The Yurok Tribe Reservation lies outside of the Trinity River basin, along the lower Klamath. If Congress intended the directives contained in section 3406(b)(23) to also serve the lower Klamath, it would have also listed the “Federal trust responsibilities” it owes the Yurok Tribe. See Botosan v. Paul McNally Realty, 216 F.3d 827, 832 (9th Cir. 2000) (“The incorporation of one statutory provision to the exclusion of another must be presumed intentional under the statutory canon of expressio unius.”).

Thus, it is clear Congress intended section 3406(b)(23) to be geographically limited to the Trinity River basin. Any water that BOR releases from the Lewiston Dam to aid areas outside of the Trinity River basin is not subject to the permanent water release schedule called for in section 3406(b)(23) and implemented in the 2000 ROD. Because BOR intended to aid the lower Klamath River (and not the Trinity River) in implementing the 2013 flow augmentation release, the release did not violate section 3406(b)(23). Therefore, we must affirm the district court on this issue.

III. The Endangered Species Act Claim

Generally, “[t]o establish Article III standing, a plaintiff must demonstrate that: (1) he suffered an injury in fact that is concrete, particularized, and actual or imminent; (2) the injury is fairly traceable to the challenged conduct; and (3) the injury is likely to be redressed by a favorable court decision.” Nat. Res. Def. Council v. Jewell, 749 F.3d 776, 782 (9th Cir. 2014) (en banc) (citing Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 168, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)). However, this standard is softened when a plaintiff asserts a “violation of ‘a procedural right.’ ” Id. at 782-83 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 572 n.7, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). “A showing of procedural injury lessens a plaintiffs burden on the last two prongs of the Article III standing inquiry, causation and redressibility.” Salmon Spawning & Recovery All. v. Gutierrez, 545 F.3d 1220, 1226 (9th Cir. 2008). To establish a procedural “injury in fact, [a plaintiff] must allege ... that (1) the [agency] violated certain procedural rules; (2) these rules protect [a plaintiffs] concrete interests; and (3) it is reasonably probable that the challenged action will threaten their concrete interests.” Nuclear Info. & Res. Serv. v. Nuclear Regulatory Comm’n, 457 F.3d 941, 949 (9th Cir. 2006) (quoting City of Sausalito v. O’Neill, 386 F.3d 1186, 1197 (9th Cir. 2004)).

The Water Contractors assert that BOR implemented the 2013 flow augmentation release without conducting a formal section 7 consultation for ESA-listed fish species. An “alleged violation[ ] of Section 7(a)(2)’s consultation requirement,” like the Water Contractors assert, “constitute[s] a procedural injury for standing purposes.” Nat. Res. Def. Council v. Jewell, 749 F.3d at 783 (citing Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 971 (9th Cir. 2003)). We focus our analysis on whether the Water Contractors have shown that “it is reasonably probable that the challenged action will threaten their concrete interests.” Nuclear Info. & Res. Serv., 457 F.3d at 949.

The Water Contractors generally assert that BOR’s failure to conduct a section 7 consultation threatens their concrete economic interest “in ensuring the continued delivery of water to their members.” More specifically, the Water Contractors allege that the 2013 flow augmentation release would reduce the total volume of water available to maintain cold water temperatures in the Sacramento River. In support of this assertion, the Water Contractors cite one of their experts that maintains that the reduction of cold water storage “may adversely impact winter-run and/or spring run salmon egg incubation in 2013, and in 2014 if the winter of 2014 does not result in sufficient flows to refill the reservoirs,” because incubating salmonid eggs can be harmed if the water temperatures exceed fifty-six degrees. The Water Contractors next assert that, if the sal-monid eggs are harmed and the salmonid populations in the Sacramento River shrink, third-party agencies will place more stringent regulations on CVP operations and restrict the amount of water delivered to its members. Finally, the Water Contractors assert such regulations and water restrictions will economically harm them because San Luis’s member districts (including Westlands Water District) rely on CVP water to irrigate farms, employ farm workers, and generally maintain their communities.

The Water Contractors’ posited series of events that must occur before the economic harm is realized is both too uncertain and too remote to constitute a reasonably probable threat of injury. The Water Contractors have set forth “an attenuated chain of conjecture,” Hall v. Norton, 266 F.3d 969, 977 (9th Cir. 2001) (quoting Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1152 (9th Cir. 2000)), that relies on a series of contingencies in weather and water temperature. Further, the allegation that third-party agencies will eventually impose more regulations on CVP water is speculative at best. The only evidence the Water Contractors offered in support of this assertion is the declaration of Daniel G..Nelson, San Luis & Delta-Mendota Water Authority’s Executive Director, who discussed CVP regulations that were put in place in the 1990s. This declaration regarding past regulations is insufficient to show a “credible threat” that third-party agencies will increase regulations on CVP water at some point in the future. Id. at 976. The Water Contractors can also only speculate as to what regulations third-party agencies might put in place.

Not only is the alleged threat to the Water Contractors’ economic interests not “reasonably] probabl[e],” it is also not “fairly traceable” to BOR’s actions, because it “reifies] on conjecture about the behavior of other parties.” Id. at 975, 977 (quoting Ecological Rights Found., 230 F.3d at 1152). The imposition of regulations by an outside agency is an “independent action of some third party not before the court,” Ass’n of Pub. Agency Customers v. Bonneville Power Admin., 733 F.3d 939, 950 (9th Cir. 2013) (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130), that “break[s] the causal link” between the flow augmentation release and the Water Contractors’ alleged economic harm, id. at 953.

The district court found that the Water Contractors lacked standing-to bring their ESA claim both because they failed to establish a “reasonable probability of the challenged action’s threat to [their] concrete interest,” 52 F.Supp.3d at 1042 (quoting Hall, 266 F.3d at 977), and because section 7 was not designed to protect their asserted economic interest. We decline to reach the latter issue. Instead, the Water Contractors have failed to establish standing, because they have not demonstrated a reasonable probability that the alleged failure to conduct a section 7 consultation will threaten their economic interests.

IV. The Reclamation Act (43 U.S.C. § 383) and CVPIA § 3411(a)

Finally, we address whether BOR violated the Reclamation Act, 43 U.S.C. § 383, or section 3411(a) of the CVPIA by implementing the 2013 flow augmentation release without first obtaining a modification in its water rights permits.

A. The Reclamation Act

.Under the Reclamation Act of 1902, BOR must comply with state water law in “controlling], appropriating], us[ing], or distributing]” water, 43 U.S.C. § 383; see also Westlands Water Dist. v. United States, 337 F.3d 1092, 1101 (9th Cir. 2003), unless the state law is “directly inconsistent with ... a preemptive federal statute,” Nat. Res. Def. Council v. Houston, 146 F.3d 1118, 1132 (9th Cir. 1998). California law provides that “[t]he issuance of a permit gives the right to take and use water only to the extent and for the purpose allowed in the permit.” Cal. Water Code § 1381. Further, a water rights permit holder may only “change the point of diversion, place of use, or purpose of use from that specified in the ... permit ... upon permission of the [State Water Resources Control Board].” Id. § 1701.

BOR has several water rights permits it obtained from the state of California in the 1950s to divert water from the Trinity River at Lewiston Dam to the CVP. The Water Contractors argue that BOR did not comply with California law when it implemented the 2013 flow augmentation release, because these water rights permits did not list the lower Kla-math River as “an approved place of use,” and BOR did not obtain permission from the State Water Resources Control Board to change the place of use of the permits.

California Fish & Game Code section 5937 creates an exception to the permit change requirement. This code section provides:

The owner of any dam shall allow sufficient water at all times to pass through a fishway, or in the absence of a fishway, allow sufficient water to pass over, around or through the dam, to keep in good condition any fish that may be planted or exist below the dam.

Cal. Fish & Game Code § 5937. This code section not only allows, but requires BOR to allow sufficient water to pass the Lewi-ston Dam to maintain the fish below the Dam. The use of the unconditional “shall” indicates that such required releases are not dependent on having a proper water permit. Although the lower Klamath River is many miles downstream of the Lewiston Dam, it is still “below the dam.” Therefore, section 5937 permitted BOR to release water from the Lewiston Dam to “keep in good condition” the fish in the lower Klamath River without changing its water rights permits. Significantly, the California Department of Fish and Wildlife has submitted an amicus brief asserting that section 5937 authorized the 2013 flow augmentation release. Accordingly, BOR neither violated California water law nor the Reclamation Act in implementing the 2013 flow augmentation release.

B. CVPIA § 84.11 (a).

Section 3411(a) of the CVPIA provides:

[T]he Secretary shall, prior to the reallocation of water from any purpose of use or place of use specified within applicable Central Valley Project water rights permits and licenses to a purpose of use or place of use not specified within said permits or licenses, obtain a modification in those permits and licenses, in a manner consistent with the provisions of applicable State law, to allow such change in purpose of use or place of use.

The Water Contractors assert that BOR violated this provision because it failed to obtain permission from the State Water Resources Gontrol Board to modify its water permits before implementing the 2013 flow augmentation release. The Water Contractors also assert that this section of the CVPIA places a duty on BOR, independent of state law, to obtain a change in the water rights permits.

We have previously concluded that “section 3411(a) restates the requirements of California water law.” Westlands Water Dist. v. Nat Res. Defense Council, 43 F.3d 457, 461 (9th Cir. 1994). Indeed, section 3411(a) clearly provides that any modification must be “consistent with the provisions of applicable State law.” Accordingly, we reaffirm our holding that section 3411(a) does not impose on BOR a duty to obtain a permit modification that is independent of the duty created by -state law. As explained above, California Fish & Game Code section 5937 creates an exception to the general rule that water permit holders must obtain permission to modify their permits before altering the place or purpose of the water use listed on their permits. Because the 2013 flow augmentation release fell under the section 5937 exception, BOR did not violate California law, and thus did not violate CVPIA section 3411(a).

CONCLUSION

The broad language of the 1955 Act gave BOR the authority to implement the 2013 flow augmentation release to protect fish in the lower Klamath River. Because the 2013 flow augmentation release sought to protect fish in the lower Klamath River, it did not violate CVPIA section 3406(b)(23), which called for a permanent water release schedule that would serve only the Trinity River basin. The 2013 flow augmentation release also did not violate California water law and, in turn, did not violate the Reclamation Act. or CVPIA section 3411(a), both of which require BOR to comply with state water permitting requirements. Finally, we do not reach the merits of the ESA claim, as the Water Contractors do not have standing to pursue this claim.

The parties shall bear their own costs on appeal. The judgment of the district court is AFFIRMED IN PART and REVERSED IN PART.

      . An "acre-foot” is a unit of volume “equal to the amount of water it would take to fill an acre [of land] to a foot-deep level — approximately 326,000 gallons. An average household uses between one-half and one acre-foot of water in a year.” Westlands Water Dist. v. U.S. Dep't of Interior, 376 F.3d 853, 861 n.3 (9th Cir. 2004).

      . This body of water has been referred to both as Trinity Lake and Trinity Reservoir. Similarly, the body of water created by Lewiston Dam has been referred to both as Lewiston Lake and Lewiston Reservoir.

      . FWS and the Hoopa Valley Tribe prepared the Final Report in consultation with the U.S. Geological Survey, BOR, National Marine Fisheries Service, and California Department of Fish and Game.

      . The amended complaint purports to challenge the 2012 flow augmentation release. However, the 2012 release was largely ignored in the parties' briefing and in the district court’s orders and judgment. The material facts of the 2012 and 2013 flow augmentation releases are almost identical and the omission of a discussion of the 2012 release does not alter the analysis in this case. Accordingly, this Opinion focuses on the 2013 flow augmentation release.

      . See To Authorize the Secretary of the Interior to Construct, Operate, and Maintain the Trinity River Development, Central Valley Project, California, Under Federal Reclamation Laws: Hearing on H.R. 123 Before the Subcomm. on Irrigation and Reclamation of the H. Comm, on Interior and Insular Affairs, 83d Cong. 86 (1954) (statement of Harold Del Ponte, Supervisor, Del Norte County); To Authorize the Secretary of the Interior to Construct, Operate,
        arad Maintain the Trinity River Division, Central Valley Project, California, ■Under Federal Reclamation Laws: Hearing on H.R. 4663 Before the Subcomm. on Irrigation and Reclamation of the H. Comm, on Interior and Insular Affairs, 84th Cong. 10 (1955) (statement of Clyde Spencer, Regional Director, Bureau of Reclamation); H.R. Rep. No. 84-602, at 4-5.

      . “Section 7 imposes on all agencies a duty to consult with either the Fish and Wildlife Service or the [National Oceanic and Atmospheric Administration] Fisheries Service before engaging in any discretionary action that may affect a listed species or critical habitat.’’ Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1020 (9th Cir. 2012) (en banc).

      . The Water Contractors assert that their “ability to deliver water to their members is dependent on the status and recovery of the listed species,” which include coho salmon, winter- and spring-run Chinook salmon, Central Valley steelhead, green sturgeon, and Delta Smelt. The Water Contractors' expert refers primarily to "salmonids,” which includes “Chinook salmon, Coho salmon and steel-head.”


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Lorraine BATES; Charles Ehrman Bates; Eileen Burke; Jaci Evans, as Successor Personal Representative for the Estate of Thomas Marier; and Dalla Francis, as Personal Representative for the Estate of George Alexander, Plaintiffs-Appellants, v. BANKERS LIFE AND CASUALTY COMPANY, an Illinois insurance company; CNO Financial Group, Inc., a Delaware corporation, Defendants-Appellees.
    No. 14-35397
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted October 4, 2016, Portland, Oregon
    Filed February 24, 2017

      Rachele R. Selvig (argued) and Christopher L. Cauble, Cauble & Cauble LLP, Grants Pass, Oregon; Michael L. Williams and Leslie W. O’Leary, Williams O’Leary LLC, Portland, Oregon; for Plaintiffs-Appellants.
    Adam J. Kaiser (argued), Jeffrey J. Am-ato, and Matthew A. Stark, Winston & Strawn LLP, New York, New York; lian Wurman, Winston & Strawn LLP, Washington, D.C.; Vicki L. Smith, Lane Powell PC, Portland, Oregon; for Defendants-Appellants.
    Before: RICHARD R. CLIFTON, MARY H. MURGUIA, and JACQUELINE H. NGUYEN, Circuit Judges.
   OPINION

PER CURIAM:

Plaintiffs appeal the district court’s orders striking their class allegations and dismissing their claims under Oregon’s financial abuse statute, Oregon Revised Statute § 124.110. We dismiss the appeal in part because we lack jurisdiction to review the order striking the class allegations. As to the proper interpretation of Oregon Revised Statute § 124.110, we certify this question to the Oregon Supreme Court in an order filed concurrently with this opinion.

I.

Plaintiffs are elderly Oregonians or their successors who purchased long-term healthcare insurance policies sold by Bankers Life and Casualty Company and its parent company, CNO Financial Group, Inc. (“Bankers”). These policies are designed to provide health services for elderly people who can no longer care for themselves and are intended to cover expenses for in-home care providers, assisted living facilities, and nursing homes. Plaintiffs allege that Bankers collected premium payments and, without good cause, delayed and denied insurance benefits to which putative class members were entitled under their policies.

In their Second Amended Complaint, Plaintiffs asserted claims for breach of contract, intentional misconduct, fraud, and violations of Oregon’s financial abuse statute. They also sought certification for three separate classes: (1) Oregonians whose claims have been mishandled through delay and nonpayment of claims; (2) family members and representatives who have incurred expenses while attempting to obtain benefits; and (3) policyholders who have not yet made claims. Pursuant to Federal Rules of Civil Procedure 12(b)(2), 12(b)(6), and 23(d), Bankers moved to dismiss many of Plaintiffs’ claims and to strike Plaintiffs’ class allegations. Plaintiffs’ breach-of-contract claims against Bankers, which were not the subject of any of the motions, remain before the district court.

On January 27, 2014, the district court dismissed, inter alia, Plaintiffs’ financial abuse claims and granted Bankers’ motion to strike the class allegations. The court concluded that the class allegations of mishandled insurance claims “require case-by-case analysis of the operative facts.” Bates v. Bankers Life & Cas. Co., 993 F.Supp.2d 1318, 1339-43 (D. Or. 2014). The court found that even with class discovery Plaintiffs would not be able to satisfy either the typicality requirement under Federal Rule of Civil Procedure 23(a)(3) or any of the subdivisions under Rule 23(b) to maintain a class action. Id. at 1342-43.

. On April 30, 2014, the district court granted Plaintiffs’ unopposed motion for entry of final judgment pursuant to Federal Rule of Civil Procedure 54(b) and stayed the proceedings pending the outcome of this appeal. The court concluded that the decision to strike Plaintiffs’ class allegations was “final” as the term is used in Rule 54(b) and did not raise the risk of piecemeal litigation. Finding no just reason for delay, the district court entered final judgment so that Plaintiffs could appeal the decision to strike the class allegations. On May 7, 2014, Plaintiffs appealed, arguing that the district court improperly dismissed their class allegations without permitting class discovery.

II.

Plaintiffs assert appellate jurisdiction under Federal Rule of Civil Procedure 54(b) and 28 U.S.C. § 1291. Bankers counters that our court lacks jurisdiction because an order granting a motion to strike class allegations, like an order denying class certification, is not a final judgment. Because 28 U.S.C. § 1292(b) and Federal Rule of Civil Procedure 23(f) are the only proper avenues for appealing a motion to strike class allegations, we lack jurisdiction to hear Plaintiffs’ challenge to the order striking their class allegations.

Under 28 U.S.C. § 1291, we have jurisdiction over “final decisions” of the district courts. A judgment is generally final and appealable under § 1291 when it “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Lovell v. Chandler, 803 F.3d 1039, 1047 (9th Cir. 2002) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945)). Pursuant to Federal Rule of Civil Procedure 54(b), a district court “may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay.” District courts, however, do not have the discretion under Rule 54(b) to convert a non-final judgment into a final judgment. See Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437, 76 S.Ct. 895, 100 L.Ed. 1297 (1956) (“The District Court cannot, in the exercise of its discretion [under Rule 54(b) ], treat as ‘final’ that which is not ‘final’ within the meaning of [28 U.S.C.] § 1291.”).

A decision to grant a motion to strike class allegations, which is the “functional equivalent of denying a motion to certify a case as a class action,” is not a final judgment. In re Bemis Co., 279 F.3d 419, 421 (7th Cir. 2002); see also United Airlines, Inc. v. McDonald, 432 U.S. 385, 388-90, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977) (using the terms interchangeably). As the Supreme Court recognized, “[a]n order refusing to certify, or decertifying, a class does not of its own force terminate the entire litigation because the plaintiff is free to proceed on his individual claim.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). Such decisions are thus “inherently interlocutory” in nature. Id. at 470, 98 S.Ct. 2454; see also Chevron USA Inc. v. Sch. Bd. Vermilion Par., 294 F.3d 716, 720 (5th Cir. 2002) (dismissing for lack of jurisdiction an appeal, under 28 U.S.C. § 1291 and Rule 54(b), from an order refusing to certify a class action); Minority Police Officers Ass’n of S. Bend v. City of South Bend, 721 F.2d 197, 201 (7th Cir. 1983) (same).

There are only two procedural avenues for appealing an order striking class allegations made under Federal Rule of Civil Procedure 23: (1) asking the district court to certify an order for interlocutory review pursuant to 28 U.S.C. § 1292(b); or (2) filing a petition for permission to appeal pursuant to Federal Rule of Civil Procedure 23(f). See Plata v. Davis, 329 F.3d 1101, 1107-08 (9th Cir. 2003); Kamm v. Cal. City Dev. Co., 509 F.2d 205, 206 (9th Cir. 1975). Section 1292(b) allows appeal of an interlocutory decision if the district court states in writing that “such order involves a controlling question of law ... and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” The court of appeals may then, in its discretion, permit an appeal of the order if the application is made within ten days. 28 U.S.C. § 1292(b). Federal Rule of Civil Procedure 23(f) allows appeal from an order granting or denying class certification “if a petition for permission to appeal is filed with the circuit clerk within 14 days after the order is entered.” Plaintiffs did not use either of these procedural avenues, and we therefore lack jurisdiction to hear their challenge to the order striking their class allegations.

Appeal DISMISSED in part for lack of jurisdiction.

      . Plaintiffs also argue that Bankers waived this jurisdictional challenge by failing to raise it before the district court. A lack of subject matter jurisdiction may be raised at any time, however, even on appeal. Fed. R. Civ. P. 12(h)(3); Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434-435, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011).


author: TYMKOVICH, Chief Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James D. RUSSIAN, Defendant-Appellant.
    No. 15-3213
    United States Court of Appeals, Tenth Circuit.
    FILED February 21, 2017

      Daniel T. Hansmeier, Assistant Federal Public Defender (with .Melody Brannon, Federal Public Defender, on the briefs), Office the Kansas Federal Public Defender, Topeka, Kansas, for Appellant.
    Jared S. Maag, Assistant United States Attorney (with Thomas E. Beall, Acting United States Attorney, and Alan G. Metz-ger, Assistant United States Attorney, on the brief), Wichita, Kansas, for Appellee.
    Before TYMKOVICH, Chief Judge, McKAY, and BALDOCK, Circuit Judges.
   TYMKOVICH, Chief Judge.

James Russian was charged with four drug- and gun-related offenses. Before trial, Russian filed a motion to suppress evidence obtained from the search of two cell phones seized at. the time of his arrest, arguing the search warrant was invalid for lack of particularity. The district court denied the motion, concluding even if the warrant was invalid, the good faith exception to the exclusionary rule applied.

At trial, text messages and photographs from the phones were introduced against Russian. After the jury convicted Russian on all counts, the court imposed a total sentence of 137 months’ imprisonment. Russian challenges the admission of the evidence obtained from the cell phone searches, as well as the sentences imposed on several of the counts.

We affirm Russian’s convictions. The officers conducting the search acted in objectively reasonable reliance on the warrant, and even if that were not the case, any Fourth Amendment error was harmless beyond a reasonable doubt. As for Russian’s sentences, we remand for resentenc-ing. The government does not dispute the district court erred in relying on an improperly calculated guidelines range for the sentences on the contested counts.

I. Background

Missouri law enforcement responded to a 911 call reporting that two women were being threatened by a man with a machete and a handgun. The man was identified as James Russian. When officers arrived at the scene, a high-speed car chase ensued, which crossed state lines and ended in Kansas when Russian lost control of his vehicle and spun to a stop. Russian exited his vehicle, jumped a fence, and fled into the woods, with law enforcement officers in pursuit. A short time later, Russian was found hiding under some brush and was taken into custody. One of the officers, Deputy Chris Wilson, searched Russian and found a red and black Samsung cell phone in one of his pockets, which Deputy Wilson then seized. After Russian was arrested, Deputy Wilson also searched his abandoned vehicle and found, among other things, a black Samsung cell phone.

Deputy Wilson applied for a search warrant with the state district court. The search warrant application identified three places to be searched: (1) a red and black Samsung cell phone found in Russian’s possession at the time of his arrest, (2) a black Samsung cell phone taken from Russian’s car at the time of his arrest, and (3) Russian’s residence. The application also requested permission to seize “[tjext messages, phone numbers, phone calls sent and received, any data contained within the phone or on any removable media device within the phone and Images contributing to the possession or sale of any illegal drug and drug paraphernalia.” R. Supp. Vol. II. at 1.

The state district court issued a search warrant that referenced Deputy Wilson’s affidavit and warrant application and identified the crimes being investigated and items to be seized, including “cell phones that could be used to facilitate the commission of the crimes.” Id. at 4-5. The warrant also described the location to be searched (Russian’s apartment), but it faded to authorize the search of cell phones already in law enforcement custody or the seizure of any cell phone data. After obtaining-the warrant, Deputy Wilson searched Russian’s Samsung cell phones seized at the time of the arrest and recovered text messages, phone numbers, a phone log of calls sent and received, and photographs.

Russian was charged with four drug- and gun-related offenses. Count 1 charged possession of a Ruger 9mm firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). Count 2 was the same statutory violation, but predicated on possession of ammunition. Count 3 charged possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Count 4 alleged possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a). Before trial, Russian moved to suppress the evidence obtained from Deputy Wilson’s search of the cell phones, arguing, among other things, that the warrant lacked particularity.

The district court denied the motion. Although the court found the particularity question was a close call, it upheld the search under the good faith exception to the exclusionary rule. Deputy Wilson had testified he believed he was authorized to search the phones, because the warrant mentioned cell phones in general, and because the application for the warrant requested authority to search both of the phones.and provided a list of data to be seized. There was no evidence law enforcement had acted in bad faith, and the warrant was supported by probable cause. Thus, the court reasoned, suppressing the evidence would not serve the purposes of the exclusionary rule.

At trial, in addition to evidence obtained from the search of Russian’s home and automobile, the government introduced text messages and photographs obtained from the cell phones seized at the time of Russian’s arrest. The text messages established Russian knew one of the women who had called 911 when Russian threatened her; owned a gun; and was dealing in methamphetamine. The photographs, which were taken at Russian’s home, depicted a green leafy substance resembling marijuana. The jury ultimately convicted Russian on all four counts as charged.

Before sentencing, the Presentence Report (PSR) calculated Russian’s guidelines sentencing range. The PSR took into account a fifteen-year-old conviction for conspiracy to commit aggravated battery and arrived at^a guidelines range of 46 to 57 months’ imprisonment. The district court varied upward from that range and imposed a total sentence of 137 months’ imprisonment: 76 months on Counts 1, 2, and 4, concurrent with each other and consecutive to a 60-month sentence on Count 3.

II. Analysis

' Russian makes three arguments on appeal.- He contends the district court erred (1) in denying his motion to suppress evidence seized from a search of the cell phones;, (2) in relying on an erroneously calculated guidelines range to impose 76-month sentences on Counts 1, 2, and 4; and (3) in imposing a sentence higher than the statutory maximum on Count 4. We consider each in turn.

A. Unreasonable Search and Seizure

Russian first argues his convictions should be reversed, because the district court erred in denying his motion to suppress evidence seized from the two cell phones. Specifically, he contends the search warrant was invalid for lack of particularity and was so facially deficient that the good faith exception to the exclusionary rule cannot save the search. Although we agree with Russian that the warrant was invalid, we affirm his convictions because we conclude the good faith exception applies. And even if we were to assume the district court erred in denying Russian’s motion, any error was harmless beyond a reasonable doubt.

The Fourth Amendment protects the right of citizens to be free from unreasonable searches and seizures. U.S. Const, amend. IV. In the criminal law context, evidence seized in violation of the Fourth Amendment may not be admitted against a defendant in a criminal prosecution, subject to certain exceptions. See Mapp v. Ohio, 367 U.S. 643, 648, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). But Fourth Amendment violations are still subject to the harmless error rule. Chambers v. Maroney, 399 U.S. 42, 53, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (“[TJhere may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.”). For a constitutional error to be held harmless, “the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Id. at 24, 87 S.Ct. 824.

We review de novo the district court’s conclusion that even if the warrant was invalid for lack of particularity, the good faith exception to the exclusionary rule applies to save Deputy Wilson’s search of Russian’s cell phones. See United States v. Burgess, 576 F.3d 1078, 1087 (10th Cir.), cert. denied 558 U.S. 1097, 130 S.Ct. 1028, 175 L.Ed.2d 629 (2009) (“The ultimate question of reasonableness under the Fourth Amendment is a legal conclusion that we review de novo.”). In doing so, “[w]e consider the totality of the circumstances and view the evidence in the light most favorable to the government.” United States v. Riccardi, 405 F.3d 852, 860 (10th Cir. 2005).

1. Particularity Requirement

Russian first argues the search warrant was invalid, because it failed to describe with particularity the place to be searched (the two Samsung cell phones) and the things to be seized (the cell phone data). We agree for several reasons.

In protecting against unreasonable searches and seizures, the Fourth Amendment mandates two requirements for search warrants: a warrant must be supported by probable cause, and it must describe with particularity “the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV; Groh v. Ramirez, 540 U.S. 551, 557, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004). Because the Fourth Amendment by its terms “requires particularity in the warrant, not in the supporting documents,” an application for a warrant which meets the particularity requirement “does not save the warrant from its facial invalidity.” Id. (emphasis removed). And “[although an executing officer’s knowledge may be a curing factor,” knowledge alone is insufficient to satisfy the particularity requirement. United States v. Williamson, 1 F.3d 1134, 1136 (10th Cir. 1993).

In the context of cell phones and cell phone data, the Supreme Court recently held in Riley v. California that a warrant is generally required to search digital information on a cell phone, even when the phone is seized incident to a lawful arrest. — U.S. -, 134 S.Ct. 2473, 2493, 189 L.Ed.2d 430 (2014). We have not yet had occasion to address the effect of Riley, but we have previously recognized the importance of the particularity requirement as it pertains to searches of personal computers, because computers “can contain (or at least permit access to) our diaries, calendars, files, and correspondence” and therefore may be “especially vulnerable to a worrisome exploratory rummaging by the government.” United States v. Christie, 717 F.3d 1156, 1164 (10th Cir. 2013).

We have thus drawn a “recognizable line” in considering how much particularity is required for computer searches. Id. On the one hand, we have invalidated warrants authorizing computer searches “where we could discern no limiting principle: where, for example, the warrant permitted a search of ‘ “any and all” information, data, devices, programs, and other materials,’ ” or “all computer and non-computer equipment and written materials in [a defendant’s] house.” Id. at 1164-65 (first quoting United States v. Otero, 563 F.3d 1127, 1132-33 (10th Cir. 2009); then quoting Mink v. Knox, 613 F.3d 995, 1011 (10th Cir. 2010)). On the other hand, we have stated, “warrants may pass the particularity test if they limit their scope either ‘to evidence of specific federal crimes or to specific types of material.’ ” Christie, 717 F.3d at 1165 (quoting United States v. Riccardi, 405 F.3d 852, 862 (10th Cir. 2005) (alteration incorporated)).

This approach can be . extended to searches of cell phones, which the Supreme Court has characterized as “minicomputers that also happen to have the capacity to be used as a telephone.” See Riley, 134 S.Ct. at 2489. And here, we have little difficulty concluding the warrant on which Deputy Wilson relied to search Russian’s phones was invalid for lack of particularity. Although the application requested authorization to search the two Samsung cell phones law enforcement had seized at the time of Russian’s arrest and certain data that might be found on them, the ,warrant itself merely authorized a search of Russian’s residence and seizure of any cell phones found inside. The warrant did not identify either of the phones that were already in law enforcement’s custody, nor did it specify what material (e.g., text messages, photos, or call logs) law enforcement was authorized to seize.

Accordingly, we agree with Russian that the warrant failed to meet the Fourth Amendment’s particularity requirement.

2. Good Faith Exception to the Exclusionary Rule

Although the warrant was invalid, we can also consider whether the good faith exception to the exclusionary rule applies. Russian contends it does not, arguing the warrant was so facially deficient that Deputy Wilson could not reasonably have presumed it to be valid. We disagree, because we find Deputy Wilson’s reliance on the warrant was objectively reasonable under the circumstances.

Even if a warrant fails to satisfy the Fourth Amendment’s particularity requirement, the exclusionary rule should not be applied to suppress evidence obtained by officers acting in objectively reasonable reliance on a search warrant issued by a detached and neutral magistrate judge that is ultimately deemed invalid. United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The rationale for Leon’s good faith exception is the underlying purpose of the exclusionary rule — namely, to deter police misconduct. When an officer acts in good faith, there is nothing to deter. Id. at 918, 104 S.Ct. 3405. Thus, “the suppression of evidence obtained pursuant to a warrant should be ordered only in the unusual cases in which exclusion will further the purposes of the exclusionary rule.” Riccardi, 405 F.3d at 863.

But the officer’s reliance on the defective warrant still must be objectively reasonable: the government is not entitled to the good faith exception when a warrant is “so facially deficient — i.e., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid.” Leon, 468 U.S. at 922-23, 104 S.Ct. 3405. “The test is an objective one that asks “whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.’ ” Otero, 563 F.3d at 1134 (quoting Leon, 468 U.S. at 922 n.23, 104 S.Ct. 3405). “Not every deficient warrant, however, will be so deficient that an officer would lack an objectively reasonable basis for relying upon it.” Otero, 563 F.3d at 1134. “Even if the court finds the warrant to be facially invalid ... it ‘must also review the text of the warrant and the circumstances of the search to ascertain whether the agents might have reasonably presumed it to be valid.’ ” Riccardi, 405 F.3d at 683 (quoting United States v. Leary, 846 F.2d 592, 607 (10th Cir. 1988)).

Here, several factors lead us to conclude Deputy Wilson’s reliance on the warrant was objectively reasonable. First, Deputy Wilson prepared the warrant application and supporting affidavit, in which he carefully identified each Samsung cell phone by color and model number and specified which types of data he had probable cause to believe would be found therein. Although a warrant application or affidavit cannot save a warrant from facial invalidity, it can support a finding of good faith, particularly where, as here, the officer who prepared the application or affidavit also executed the search. See United States v. Simpson, 152 F.3d 1241, 1248 (10th Cir. 1998) (“[T]he affidavit certainly supports the district court’s conclusion that Deputy Johnson [the affiant] in good faith believed he was obtaining a warrant to search Simpson’s residence as well as his person.”); see also United States v. Tracey, 597 F.3d 140, 153 (3d Cir. 2010) (‘We also note that the application of the good faith exception is appropriate because [Officer] Holler, who drafted the narrower affidavit and was aware of its limits, led the search team at Tracey’s home.”).

Second, in addition to signing the warrant itself, the magistrate judge sighed Deputy Wilson’s warrant application and affidavit, which contained a particularized description of the Samsung cell phones and cell phone data. The magistrate judge’s approval of the application and affidavit — and reference to both documents in the first paragraph of the warrant — further supports the objective reasonableness of Deputy Wilson’s reliance on the warrant. Cf. United States v. Allen, 625 F.3d 830, 839 (5th Cir. 2010) (reasoning “the executing officer who prepared the warrant, the affidavit and the attachment ... had additional objective reason to believe the warrant was valid,” because the magistrate judge “signed not only the warrant, but also the affidavit, to which the list of items to be seized was attached”). Courts applying the good faith exception “have concluded that, at least when the magistrate neither intimates he has made any changes in the warrant nor engages in conduct making it appear he has made such changes, the affiant-officer is entitled to assume that what the magistrate approved is precisely what he requested.” 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 1.3(f) (5th ed. 2012). Thus, it was reasonable for Deputy Wilson to rely on the warrant to search the cell phones already in law enforcement’s custody and seize certain cell phone data related to the crimes listed in the warrant.

Third, Deputy Wilson confined his search to the evidence specified in the warrant application and affidavit, further indicating he acted in good faith and in objectively reasonable reliance on what he believed was a valid warrant. Cf. Otero, 563 F.3d at 1136 (“The inspectors in this case had reason to believe the warrant was valid, considered themselves authorized to search only for evidence of crimes for which they had probable cause, and conducted their search accordingly.”); Riccardi, 405 F.3d at 864 (“The officers remained within the terms of the warrant as well as the affidavit, and did'not conduct a ‘fishing expedition’ beyond the scope of the authorized investigation.”).

Finally, excluding the challenged evidence would not serve the underlying purpose of the exclusionary rule. As the Supreme Court has emphasized, “the exclusionary rule is not an individual right,” Herring v. United States, 555 U.S. 135, 141, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009), but rather “a judicially fashioned remedy whose focus is not on restoring the victim to his rightful position but on deterring police officers from knowingly violating the Constitution,” Allen, 625 F.3d at 836; see also Otero, 563 F.3d at 1133. As detailed above, “[a]t each step of the investigation,” Deputy Wilson “made every effort to comply with the law.” See Burgess, 576 F.3d at 1091. “[T]he exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates.” Leon, 468 U.S. at 916, 104 S.Ct. 3405 (emphasis added). And since judges and magistrates are “neutral judicial officers” with “no stake in the outcome of particular criminal prosecutions,” the exclusionary sanction “cannot be expected significantly to deter them.” Id. at 917, 104 S.Ct. 3405. Accordingly, given the lack of misconduct by law enforcement and Deputy Wilson’s reliance on a warrant he reasonably believed to be valid, we decline to apply the exclusionary rule to the evidence seized from Russian’s phones.

None of Russian’s arguments persuade us to reach a different conclusion. First, Russian contends Deputy Wilson’s subjective knowledge of the place to be searched does.not render his reliance on the deficient warrant objectively reasonable. But as we have already explained, a number of other factors demonstrate the objective reasonableness of Deputy Wilson’s belief the warrant was valid. Russian next argues that because Deputy Wilson specifically requested a search of cell phone data, he should have known the warrant did not authorize such a search when it referred only to “cell phones that could be used to facilitate the commission of the crimes.” R. Supp. Yol. II at 4-5. Russian claims no reasonable officer would read this brief reference to cell phones as permitting a search of the phones in law enforcement’s custody or their data. But this argument also fails in light of the circumstances, including the magistrate judge’s signature on the warrant application and affidavit.

In sum, the district court did not err in applying the good faith exception to uphold the search of Russian’s cell phones.

3. Harmless Error Rule

But even if we were to assume the district court erred in denying Russian’s motion to suppress and the good faith exception did not save the warrant, we would still find any error was harmless beyond a reasonable doubt.

Most constitutional errors, including Fourth Amendment violations, do not require reversal of a conviction if the court concludes the error was harmless beyond a reasonable doubt. Chambers, 399 U.S. at 52-53, 90 S.Ct. 1975. The government bears the burden of making this showing. United States v. Miller, 111 F.3d 747, 751 (10th Cir. 1997). “In cases that are decided by a jury, a court will only find a constitutional error harmless if the court can conclude ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” United States v. Benard, 680 F.3d 1206, 1213 (10th Cir. 2012) (quoting Chapman, 386 U.S. at 24, 87 S.Ct. 824). Put differently, we must determine “whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (emphasis in original). In making this determination, we consider the alleged error “in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.” United States v. Mullikin, 758 F.3d 1209, 1211 (10th Cir. 2014) (quoting Arizona v. Fulminante, 499 U.S. 279, 308, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)).

Russian contends any error was not harmless beyond a reasonable doubt, because the evidence obtained from the cell phones, which included photographs of a substance resembling marijuana and text messages containing offensive and violent language, “was damning and inflammatory, and was woven throughout the trial.” Aplt. Rep. Br. at 13. Russian is correct that the prejudicial effect of potentially wrongfully admitted evidence is one consideration in the harmless error analysis. See United States v. Glass, 128 F.3d 1398, 1403 (10th Cir. 1997). But we still must consider the challenged evidence in the context of the evidence properly admitted at trial. See Mullikin, 758 F.3d at 1211. And, after reviewing the unchallenged evidence introduced at trial during the government’s case in chief, we conclude the government has met its burden of demonstrating any error in admitting the evidence obtained from the search of Russian’s two cell phones was harmless.

To begin, the jury’s guilty verdict on Counts 1 and 2 was surely not attributable to the evidence seized from the cell phones. Counts 1 and 2, unlawful possession of a firearm or ammunition in or affecting interstate commerce, required the government to prove beyond a reasonable doubt that Russian had been convicted of a felony and then knowingly possessed a firearm or ammunition that had moved in interstate commerce. In the superseding indictment, the government alleged Russian possessed a Ruger P95 9 mm handgun, along with eighty-two live cartridges of 9 mm ammunition and eighteen live cartridges of 20-gauge shotgun ammunition, which had been transported in interstate commerce. At trial, Deputy Wilson testified that during the lawful search of Russian’s residence, law enforcement discovered a Ruger P95 9 mm handgun, loaded with twelve rounds of ammunition, in the kitchen. Two loaded 9 mm magazines and additional 9 mm ammunition, along with a box of shotgun shells, were discovered on Russian’s dresser. In light of this evidence, the admission of the cell phone evidence, if erroneous, was harmless beyond a reasonable doubt regarding the guilty verdicts on Counts 1 and 2.

The same is true for Count 4, possession with intent to distribute marijuana, which required the government to prove beyond a reasonable doubt that Russian knowingly or intentionally possessed marijuana with the intent to distribute it. During the lawful search of Russian’s residence, officers recovered a wealth of physical. evidence that was admitted at trial, including forty-six plastic baggies containing marijuana, with a name, address, phone number, and “This l’s on me” written on each baggie. R. Yol. Ill at 177-80. The baggies also contained a half book of matches and rolling papers. Additionally, officers found nine identically marked baggies, which contained marijuana, matchbooks, and rolling papers, in Russian’s abandoned vehicle on the night of his arrest. Digital scales were discovered in Russian’s bathroom and in his kitchen. And a ledger with entries concerning distribution of a controlled substance was discovered on Russian’s dresser. Officers also found $23,700 in cash, most of which was hidden inside an air vent in Russian’s residence.

In addition to this unchallenged physical evidence, a witness whose name appeared on the baggies testified at trial that he had never seen the plastic baggies of marijuana found in Russian’s vehicle and residence, he did not spell his name as it was spelled on the baggies, he was unfamiliar with the address listed on the baggies, and his handwriting was not on the baggies. He also testified that he had previously been convicted on a misdemeanor involving marijuana. And one of the women involved in the 911 call testified about the events leading up to that 911 call, which led to Russian’s arrest. Pertinently, she testified Russian had given her some methamphetamine to sell, accused her of stealing it, and eventually threatened her with a machete and a handgun.

All of this unchallenged evidence and trial testimony establishes that, even if the text messages and photographs were admitted in error, the jury’s guilty verdict on Count 4 was not attributable to the cell phone evidence. There was overwhelming evidence Russian knowingly or intentionally possessed marijuana with the intent to distribute it, and the strength of this evidence minimizes any prejudice Russian may have suffered as a result of the cell phone evidence. Cf. Glass, 128 F.3d at 1403 (“To hold an error of constitutional dimension harmless, we must conclude ‘the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the [purported error] is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error.’ ”) (quoting Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972)).

Finally, and for similar reasons, any error was also harmless regarding Count 3. For Count 3, the government was required to prove beyond a reasonable doubt that Russian knowingly possessed a firearm in furtherance of a drug-trafficking crime. Specifically, the government had to prove Russian “committed the crime of possession with intent to distribute marijuana, as charged in Count 4” and that he “possessed a firearm in furtherance of this crime.” R. Vol. III at 378-79. As the court instructed the jury, “in furtherance of’ means “for the purpose of assisting in, promoting, accomplishing, advancing, or achieving the goal or objective of the underlying offense.” Id. at 379. The mere presence of a firearm at the scene of a drug-trafficking crime is insufficient to meet this element. Instead, the following non-exhaustive factors can indicate a firearm was possessed in furtherance of a drug-trafficking crime: “(1) the type of criminal activity that is being conducted; (2) accessibility of the firearm; (3) the type of firearm; (4) whether the firearm is stolen; (5) the status of the possession (legitimate or illegal); (6) whether the firearm is loaded; (7) the time and circumstances under which the firearm is found, and (8) proximity to drugs or drug profits.” Id.

As detailed above, evidence lawfully obtained and admitted at trial established Russian illegally possessed a loaded 9 mm handgun, and this handgun was located on his kitchen cabinets just above the largest source of marijuana found in Russian’s residence — that is, the forty-six baggies found in the space below the kitchen sink. A large amount of cash was also discovered in Russian’s residence. And there was overwhelming evidence supporting Russian’s conviction on Count 4, as discussed above. All of this evidence reduces the possible prejudicial effect of the cell phone evidence, and it establishes the jury’s guilty verdict on Count 3 was not attributable to evidence that may have been erroneously admitted.

In sum, the lawfully obtained and admitted evidence and trial testimony elicited by the government on each count charged and the comparative lack of prejudicial effect of the evidence obtained from the cell phones lead us to conclude the jury’s guilty verdicts on all counts were not attributable to the admission of the evidence seized during the search of Russian’s cell phones. Thus, even if the district court erred in denying Russian’s motion to suppress, any error was harmless beyond a reasonable doubt.

We therefore affirm Russian’s convictions.

B. Improperly Calculated Guidelines Range

Russian next argues the district court plainly erred in relying on an improperly calculated guidelines range for the sentences imposed on Counts 1, 2, and 4. Specifically, he contends the PSR relied on a fifteen-year-old felony conviction that was too old to score in calculating a guidelines range of 46 to 57 months, from which the district court varied upwards to impose a 76-month sentence on Counts 1, 2, and 4. Properly calculated, the range would have been 24 to 30 months. The government does not dispute this issue, and thus we remand for resentencing on Counts 1, 2, and 4.

C. Sentence Above Statutory Maximum

Finally, Russian argues the district court plainly erred in imposing a 76-month sentence on Count 4, since the statutory maximum for that offense is 60 months. Again, the government does not dispute the issue. Accordingly, we remand for re-sentencing on Count 4 in accordance with the statutory maximum.

III. Conclusion

For the foregoing reasons, we AFFIRM Russian’s convictions but REMAND for resentencing on Counts 1, 2, and 4.

      . Russian also urges us to adopt a search methodology requirement for warrants involving cell phone data, meaning law enforcement would be required to specify an ex ante search protocol before a warrant could issue. We need not reach this argument, because we can easily conclude this warrant failed particularity. But we note that, like other circuits, we have previously declined to require a search protocol for computer searches, since courts are better able to assess the reasonableness of search protocols ex post, "in light of the totality of the circumstances” and "where evidence and experts from both sides can be entertained and examined.” See Christie, 717 F.3d at 1166-67; see also United States v. Richards, 659 F.3d 527, 538 (6th Cir. 2011); United States v. Cartier, 543 F.3d 442, 447-48 (8th Cir. 2008). And, in the context of computer searches at least, a leading Fourth Amendment scholar has opined that Supreme Court precedent "point[s] to the conclusion that the Fourth Amendment does not permit ex ante restrictions on the execution of computer warrants.” Orin S. Kerr, Ex Ante Regulation of Computer Search and Seizure, 96 Va. L. Rev. 1241, 1260-71 (2010).