United States District Court, D. Oregon
Marianne Dugan, Timothy M. Bechtold Bechtold Law Firm, PLLC,
Kristine Akland Akland Law Firm, PLLC Attorneys for Plaintiff
Matthew A. Love Jenna Mandell-Rice Van Ness Feldman LLP,
Attorneys for Intervenor-Defendants Roza Irrigation District
and Kennewick Irrigation District
C. Cruden Seth M. Barsky S. Jay Govindan Travis Annatoyn U.S.
Department of Justice Attorneys for Defendants
OPINION & ORDER
A. HERNÁNDEZ United States District Judge.
Alliance for the Wild Rockies, Inc. (“Alliance”)
brings its case against the United States Army Corps of
Engineers (“Corps”), the United States Bureau of
Reclamation (“Reclamation”), and the Bonneville
Power Administration (“BPA”) (collectively
“Federal Defendants”) for allegedly violating the
Endangered Species Act (“ESA” or
“Act”). 16 U.S.C. § 1531 et seq.
Specifically, Plaintiff alleges that twenty-three of the dams
that Federal Defendants maintain and operate may affect
critical habitat of the bull trout. Plaintiff asks the Court
to order Federal Defendants to reinitiate and complete
consultation with the United States Fish and Wildlife Service
(“Service”) to determine what affect, if any, the
dams may have on the bull trout critical habitat. 16 U.S.C.
§ 1536(a)(2); 50 C.F.R. § 402.16. Roza Irrigation
District and Kennewick Irrigation District intervened in this
case as defendants.
the Court is Federal Defendants' motion to dismiss
Alliance's Complaint pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure. The motion is granted.
trout are native to waters of western North America and
“range throughout the Columbia River and Snake River
basins, extending east to headwater streams in Montana and
Idaho, into Canada, and in the Klamath River basin of
south-central Oregon.” 75 Fed. Reg. 63, 898 (Oct. 18,
2010). Bull trout were once more widespread than they are
today and have more specific habitat requirements than other
salmonids. Id. Most bull trout are migratory, while
some “complete their entire life cycle in tributary
streams where they spawn and rear.” Id.
Service first listed populations of bull trout as
“threatened” throughout the region in 1998. 63
Fed. Reg. 31, 648 (June 10, 1998). On September 26, 2005, the
Service designated “critical habitat” for several
populations of bull trout, including some located in the
Klamath and Columbia Rivers. Mot. to Dismiss at 9, ECF 25; 75
Fed. Reg. 56, 212 (Sept. 26, 2005). The term “critical
habitat, ” is a term of art that means
“geographical area occupied by the species” that
contains those physical or biological features
“essential to the conservation of the species”
and “which may require special management consideration
or protection.” 16 U.S.C. § 1532(5)(A)(i).
and another environmental organization challenged the 2005
bull trout designation on numerous grounds in this District
and the court granted the Service's request to
voluntarily remand the rule and propose a new rule by
December 31, 2009. 75 Fed. Reg. 63, 898- 99; Alliance for
the Wild Rockies, Inc. v. Allen, No. 04-cv-1813-JO, 2009
WL 2015407 (D. Or. July 1, 2009). On October 18, 2010, the
Service designated bull trout critical habitat in segments of
rivers across Oregon, Washington, Idaho, and Montana. 75 Fed.
Reg. 63, 898. The Service attributed the decline of bull
trout to “habitat degradation and fragmentation,
blockage of migratory corridors, poor water quality, past
fisheries management practices, impoundments, dams, water
diversions, and the introduction of nonnative species.”
Defendants collectively operate and maintain all twenty-three
of the challenged dams across Oregon, Washington, Idaho, and
Montana. Mot. to Dismiss at 6-7. The dams, reservoirs, and
related facilities primarily affect the Columbia and
Willamette rivers. Id. They range from massive
hydro-electric power plants to much smaller earthfill
structures. Id. at 1. The dams are used for
electricity, flood control, irrigation, water supply,
commercial navigation, recreation, and conservation.
Id. at 1-2.
Federal Columbia River Power System operates fourteen of the
twenty-three dams at issue in this case: Albeni Falls;
Bonneville; Chief Joseph; Dworshak; Grand Coulee; Hungry
Horse; Ice Harbor; John Day; Libby; Little Goose; Lower
Granite; Lower Monumental; McNary; and The Dalles.
See Mot. to Dismiss Ex. 1. Reclamation operates the
Yakima Project which includes the Roza Diversion Dam and the
Chandler Dam. Mot. to Dismiss at 7. The Willamette Basin
Project is operated by the Corps and comprises thirteen dams
throughout the Willamette River basin. Id. at 7-8.
The Complaint identifies nine Willamette Basin Project dams:
Blue River; Cottage Grove; Cougar; Dexter; Fall Creek; Fern
Ridge; Green Peter; Hill Creek; and Lookout Point. Compl.
¶¶ 22, 34, 39, ECF 1. The Complaint also identifies
the Howard A. Hanson dam operated by the Corps. Id.
at ¶ 22.
30, 2016, Plaintiff submitted its notice of intent to sue
Federal Defendants under the ESA. Mot. to Dismiss. Ex. 3. In
its notice, Plaintiff alleged that Federal Defendants
“have never re-initiated or completed consultation to
determine whether their operations in and near designated
bull trout critical habitat will adversely affect designated
bull trout critical habitat.” Id. at 3.
Plaintiff filed its Complaint in this Court on July 11, 2016,
reasserting its claim that Federal Defendants have failed to
comply with the ESA's procedural requirement to
reinitiate consultation after receiving new information
pertaining to bull trout critical habitat from the
Service's 2010 designation. Compl. ¶¶ 47-49.
Since the ...