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Warren v. United States Bureau of Reclamation

United States District Court, D. Oregon

March 20, 2017

ALETA WARREN, Plaintiff,
v.
UNITED STATES BUREAU OF RECLAMATION, an agency of the federal government within the Department of the Interior, CENTRAL OREGON IRRIGATION DISTRICT, an Oregon municipal corporation, ESTEVAN LOPEZ, in his official capacity as the Commissioner of the Bureau of Reclamation, DAWN WIEDMEIER, in her official capacity as Columbia-Cascades Area Manager for the Bureau of Reclamation, and CRAIG HORRELL, in his official capacity as the District Manager of Central Oregon Irrigation District, Defendants.

          OPINION AND ORDER

          Michael McShane, United States District Judge

         Defendants Central Oregon Irrigation District and Craig Horrell ("Irrigation District") move to dismiss Plaintiffs First Amended Complaint ("FAC"), ECF No. 4, pursuant to Rule 12(b)(1), claiming lack of subject-matter jurisdiction. Defendants argue that Plaintiff lacks standing and that her claims are not ripe for judicial review.[1] Def.'s Mot. Br. 6, ECF No. 12.

         The Plaintiff, Ms. Aleta Warren, brings this action seeking to enjoin two piping projects. the I-lateral Project and the PBC Piping Project.[2] These projects involve the piping of open irrigation canals in and around Deschutes County, Oregon. Plaintiff seeks relief in the form of a declaratory judgment that defendants have violated the National Environmental Policy Act ("NEPA") and the National Historic Preservation Act ("NHPA") in conjunction with the two projects. Plaintiff also seek a declaratory judgment that a 2014 Memorandum of Agreement entered into by the Central Oregon Irrigation District, the U.S. Bureau of Reclamation, and the Oregon State Historic Preservation Officer, is invalid and does not operate to mitigate the destruction of historic canals with regard to future piping projects. FAC, 30-31, ECF No. 4.

         Because the Court finds for the reasons detailed below that Plaintiff lacks Article III standing, Irrigation District's Motion to dismiss (ECF No. 12) and Federal Defendant's Motion. to dismiss (ECF No. 25) are GRANTED.

         FACTUAL BACKGROUND

         Irrigation District is an Oregon municipal corporation operating an irrigation system that consists of two main canals, Pilot Butte Canal and Central Oregon Canal. Horrell Decl. ¶ 2, ECF No. 13. The Pilot Butte Canal runs north through Bend, Redmond and Terrebonne. The Central Oregon Canal runs east through Bend, Alfalfa and Powell Butte. Id. ¶ 2. The two main canals divert water from the Deschutes River and feed it into hundreds of miles of smaller lateral canals in order to provide water for about 45, 000 acres within an 180, 000 acres area in Central Oregon. Horrell Reply Decl. ¶l 1, ECF No. 20.

         I. I-Lateral Project

         Beginning in October 2012, defendant and the North Unit Irrigation District commenced was it called the "I-Lateral Project, " which piped 5, 000 feet of the I-Lateral ditch off the Central Oregon Canal in the vicinity of Alfalfa, Oregon. Horrell Decl. ¶ 11, ECF No. 13; FAC 4 & 54. This project was completed in June 2013. Horrell Decl. ¶ 11, ECF No. 13. The project was funded in part by a WaterSMART grant by the U.S. Bureau of Reclamation.[3]

         II. PBC Piping Project

         In October 2010 Irrigation District completed the Juniper Project which consisted of piping approximately three miles of the Pilot Butte Canal north of Bend and construction of a small hydroelectric plant. Horrell Decl. ¶ 11, ECF No. 13. After the completion of this project, Irrigation District considered conducting another project, phase 2 to the Juniper Project. It is Juniper Project - Phase 2 that is known as the PBC Piping Project that Plaintiff seeks to enjoin, FAC ¶ 4, ECF No. 4. The proposed PBC Piping Project would have added another mile of piping to the Pilot Butte Canal. Horrell Decl. ¶ 6, ECF No. 13. Funding for this potential project included a loan from the Oregon Department of Environmental Quality, a grant from Energy Trust of Oregon, and a WaterSMART grant from the United States Bureau of Reclamation ("Bureau of Reclamation"). Id.

         Irrigation District, in support of its Motion to dismiss, submitted an initial declaration and a second reply declaration from its manager, Craig Horrell. ECF No. 13 & 20. Mr. Horrell declares the PBC Piping Project had been cancelled before the filing of plaintiffs complaint and that no federal funds have been spent on the project. Horrell Decl. ¶ 8, ECF No. 13. Mr. Horreli declares that Irrigation District "neither received nor spent a single dollar from a state or federal agency to support any aspect of the Juniper Phase 2 project." Id.

         Irrigation District applied for a WaterSMART grant on January 2, 2013 and the Bureau of Reclamation approved funding. Liday Decl. Ex. 2, 53-314, ECF No. 16. The funding approval did not immediately release funds, but acted a promise to release funds in the future once certain conditions were fulfilled. Horrell Reply Decl. ¶ 9, ECF No. 20. Because the project was eventually cancelled, the pre-conditions were never met, and the federal grant money was never released or transferred to Irrigation District. Id. Mr. Horrell was hired as the Irrigation District manager in June 2014. At that time Mr. Horrell placed the PBC Piping project on hold in order to conduct a system-wide review of the canal's delivery system. Horrell Decl. ¶ 7, ECF No. 13; Horrell Reply Decl. ¶¶ 3-4, ECF No. 20. Mr. Horrell, as district manager, decided to "entirely abandon" the PBC Piping Project in early 2016. Horrell Decl. ¶ 7, ECF No. 13; Horrell Reply Decl. ¶ 5 ECF No. 20. On July 12, 2016, the Board of Directors for Irrigation District ratified the decision to cancel the project by resolution. Horrell Reply Decl. ¶ 10, Ex's. 3 & 4, ECF No. 20. The original complaint in this lawsuit was filed September 9, 2016. ECF No. 1.

         On August 8, 2016, Irrigation District applied to the Bureau of Reclamation to re-allocate the WaterSMART grant originally approved for the PBC Piping Project to a different project not at issue in this case. Horrell Decl. ¶ 8, Ex.'s 1 & 2, ECF No. 13. The application to re-allocate the funds explains the PBC Piping Project has been cancelled and seeks to transfer the funds to a different project rather than forfeit. Id. As of at least August 2016, the PBC Piping Project has been cancelled and there are no plans in existence to conduct the project in the future. Horrell Decl. ¶ 9, ECF No. 13; Horrell Reply Decl. ¶ 11, ECF No. 20.

         III. ...


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