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Alliance for Wild Rockies, Inc. v. United States Army Corps of Engineers

United States District Court, D. Oregon

February 23, 2017

ALLIANCE FOR THE WILD ROCKIES, INC., Plaintiff,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, UNITED STATES BUREAU OF RECLAMATION, and BONNEVILLE POWER ADMINISTRATION, Defendants.

          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

          John C. Cruden Seth M. Barsky S. Jay Govindan Travis Annatoyn U.S. Department of Justice Attorneys for Defendants

          OPINION & ORDER

          MARCO A. HERNÁNDEZ United States District Judge.

         Plaintiff 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.

         Before 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.

         BACKGROUND

         Bull 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.

         The 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).

         Alliance 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.” Id.

         Federal 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.

         The 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.

         On June 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. ΒΆΒΆ 47-49. Since the ...


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