United States District Court, D. Oregon
OPINION AND ORDER
Michael McShane, United States District Judge
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. Def.'s Mot. Br. 6, ECF No. 12.
Plaintiff, Ms. Aleta Warren, brings this action seeking to
enjoin two piping projects. the I-lateral Project and the PBC
Piping Project. 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.
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.
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.
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.
PBC Piping Project
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").
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.
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.
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.