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Northwest Environmental Defense Center v. United States Army Corps of Engineers

United States District Court, D. Oregon, Portland Division

June 5, 2019

NORTHWEST ENVIRONMENTAL DEFENSE CENTER, WILDEARTH GUARDIANS, and NATIVE FISH SOCIETY, Plaintiffs,
v.
UNITED STATES ARMY CORPS OF EINGINEERS and NATIONAL MARINE FISHERIES SERVICE, Defendants. CITY OF SALEM and MARION COUNTY, Intervenor Defendants.

          Elizabeth Hunter Potter Lauren M. Rule Attorneys for Plaintiffs

          Kaitlyn Poirier Environment & Natural Resources Division Michael R. Eitel Attorneys for Defendants

          Ashley L. Vulin Lawrence B. Burke Davis Wright Tremaine, LLP Robert E. Miller Attorneys for Intervenor-Defendants City of Salem and Marion County

          Jane E. Vetto Marion County Counsel Attorneys for Intervenor-Defendant Marion County

          OPINION & ORDER

          MARCO A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Plaintiffs' Motion for Preliminary Injunction [36] and the Motion to Disqualify and Exclude the Testimony of Richard Domingue and John K. Johnson [61] filed by Defendants the United States Army Corps of Engineers (“the Corps”) and the National Marine Fisheries Service (“NMFS”) (collectively referred to as “the Federal Defendants”). For the reasons that follow, the Court DENIES Plaintiffs' Motion for Preliminary Injunction and DENIES the Federal Defendants' Motion to Disqualify Expert Testimony.

         BACKGROUND

         Plaintiffs initiated this action on March 13, 2018, bringing claims against the Federal Defendants for violation of the Endangered Species Act (“ESA”) and the Administrative Procedure Act (“APA”) principally on the basis that the Federal Defendants failed to reinitiate consultation under the ESA after the Corps did not timely implement various mitigation measures set out in a 2008 NMFS biological opinion (“BiOp”). The 2008 BiOp assessed the effect that the Corps' operations of the Willamette River Basin Flood Control Project (“the Willamette Project”) has on Upper Willamette River Chinook salmon (“UWR Chinook”) and steelhead (“UWR steelhead”). The UWR Chinook and steelhead are listed as “threatened” under the ESA.

         The Willamette Project is a large network of 13 dams and related facilities on various tributaries in the Upper Willamette River basin. The Willamette Project was constructed beginning in 1940s to provide flood control, municipal and agricultural water supply, and hydroelectric power to the Willamette Valley. The dams most relevant to this case are located in the Middle Fork Willamette River, McKenzie River, South Santiam River, and North Santiam River subbasins. Dexter, Lookout Point, Hills Creek, and Fall Creek Dams are in the Middle Fork Willamette River subbasin; Cougar and Blue River Dams are in the McKenzie River subbasin; Green Peter and Foster Dams are in the South Santiam River subbasin; and Detroit and Big Cliff Dams are in the North Santiam River subbasin.

         Both the UWR Chinook and steelhead are anadromous salmonids, which mean they are born in freshwater - typically in upstream tributaries - before migrating through river systems out to saltwater where they mature into adults before ultimately returning to their freshwater habitat to spawn and to complete their life cycle. The UWR Chinook and steelhead were listed as “threatened” under the ESA in 1999.

         As a result of the listing of the UWR Chinook and steelhead, the Corps, the Bonneville Power Administration, and the United States Bureau of Reclamation began consultation with NMFS in 2000 to determine whether the continued operation of the Willamette Project was likely to jeopardize the continued existence of the listed salmonids and/or adversely modify the salmonids' critical habitat.[1] Due to numerous delays, NMFS did not complete the consultation process and issue its BiOp until 2008. NMFS concluded in the 2008 BiOp that the continued operation of the Willamette Project as planned by the Corps was likely to jeopardize the continued existence of the UWR Chinook and steelhead and would likely destroy and/or adversely modify the species' critical habitat. The 2008 BiOp found the dams harmed the listed salmonids by, among other things, blocking downstream passage of juvenile salmonids, interfering with upstream migration of salmonids returning to their spawning grounds, and harming water quality and quantity downstream from the dams.

         The reason the dams adversely affect salmonid migration is straightforward: Significant portions of the UWR Chinook and steelhead spawning habitat lie above at least one of the dams in the Willamette Project and salmonids cannot swim past dams at least without operational and structural measures to facilitate such passage. Approximately 70% of historic UWR Chinook and 33% of UWR steelhead spawning, incubation, and rearing habitat in the North Santiam River subbasin is blocked by dams. Decl. of Kirk Schroeder [ECF 37] ¶ 23. Approximately 70% of UWR Chinook and 33% of UWR steelhead habitat in the South Santiam River subbasin is blocked by dams. Id. ¶ 25. Over 90% of the historic habitat for spring UWR Chinook has been blocked by dams in the Middle Fork Willamette River subbasin. Id. ¶ 29.

         The dams also affect water quality, quantity, and temperature below the dams and change the nature of the waterways above the dams in a variety of ways that can affect the ability of juvenile salmon to develop and survive downstream migration and the ability of adult salmonids to migrate upstream and spawn. For example, spill from the dams can cause high levels of dissolved gas in the downstream water, which can adversely affect both juvenile downstream-migrating salmonids and upstream-migrating adult salmonids. See, e.g., id. ¶ 21. Moreover, because water downstream from dams is drawn from above-dam reservoirs, downstream water temperatures can be unnaturally warm during critical periods of the year. See, e.g., id. The reservoirs can also affect juvenile fish that are hatched above the dams (ordinarily as a result of trap-and-transport operations in the previous generation) because the unnaturally slow water movement in the reservoirs can expose juvenile salmonids to greater levels of predation, parasites, diseases, and poor water quality than they would be exposed to under natural conditions. See, e.g., id. ¶ 20.

         As part of the 2008 BiOp, NMFS issued a Reasonable and Prudent Alternative (“RPA”) in which it set out measures that the Corps and other stakeholders needed to take in order to allow for the continued operation of the Willamette Project without causing jeopardy to the listed species or adverse modification of their critical habitat. The actions set out in the RPA included structural modifications and operational changes at the dams and other Willamette Project facilities designed to mitigate many of the above adverse effects on the listed UWR salmonids. The RPA also set out a variety of timelines by which the Corps needed to make many such changes in order to minimize adverse effects on the UWR Chinook and steelhead.

         Together with the 2008 BiOp NMFS also issued an Incidental Take Statement (“ITS”) that authorized the incidental take of listed species pursuant to the terms and conditions set out in the ITS. The terms and conditions of the ITS represented “no more than minor changes” from the RPA “because they only provide further elaboration on the more general measures in the [proposed action] and RPA.” Pls.' Mot. [36] ex. 2, at 11-40.

         Although the nature and extent of the delays are matters of dispute between the parties, it is undisputed that in the years after the issuance of the 2008 BiOp at least some of the mitigation actions set out in the RPA were delayed, some have not yet occurred, and/or some will not occur in time to meet future deadlines. As discussed more fully below, UWR Chinook and steelhead populations continue to decline, although both species remain listed as “threatened” after a 2016 NMFS status review.

         Plaintiffs bring their first claim only against the Corps. In Claim One Plaintiffs allege the Corps has violated the ESA under three related theories. First, as noted, Plaintiffs allege the Corps failed to timely reinitiate consultation with NMFS after the Corps did not adequately and timely implement the measures set out in the RPA. Compl. [1] ¶ 84. Second, Plaintiffs allege the Corps is violating Section 7(a)(2) of the ESA (16 U.S.C. § 1536(a)(2)) on the basis that its failure to fully and timely implement the RPA measures is jeopardizing the UWR Chinook and steelhead and is causing adverse modification to the species' critical habitat. Id. ¶ 85. Finally, Plaintiffs allege the Corps is contributing to an unlawful “take” of the UWR Chinook and steelhead in violation of Section 9 of the ESA (16 U.S.C. § 1538) by failing to operate their Chinook salmon hatcheries pursuant to NMFS-approved Hatchery and Genetic Management Plans and by failing to comply with the terms of the ITS that was issued with the 2008 BiOp. Id. ¶¶ 86-87.[2] In Claim Two Plaintiffs allege NMFS unreasonably delayed and/or unlawfully withheld the reinitiation of consultation with the Corps in violation of the APA, 5 U.S.C. § 706(1).[3]

         After Plaintiffs filed this action the Corps and NMFS reinitiated consultation. The Federal Defendants currently estimate they will complete the BiOp from the reinitiated consultation by the end of 2022.

         On June 25, 2018, the City of Salem filed a Motion to Intervene [ECF 7] as a Defendant on the basis that this case is likely to have an impact on the City's water supply. The Court granted that Motion on July 30, 2018. See Order [ECF 15]. Similarly, on September 6, 2018, Marion County filed a Motion to Intervene [ECF 18] on the basis that this case is likely to have an impact on the County's economic interests. The Court granted that Motion on September 25, 2018. See Order [ECF 26]. The interests of the City of Salem and Marion County (collectively referred to as “the Marion County Defendants”) focus on the effect this litigation may have on operational and structural changes at Detroit Dam.

         On November 30, 2018, Plaintiffs filed their Motion for a Preliminary Injunction in which they sought an injunction that directed the Corps to implement the following interim operational measures:

1. Draw down Detroit reservoir to the regulating outlets (1, 370') by November 15 and hold until December 15, and prioritize use of the regulating outlets over turbines for that time.
2. Draw down Cougar reservoir to the regulating outlets (1, 505') by November 15 and hold until December 15. Maintain Cougar reservoir at minimum conservation pool (1, 532') from March 1 to May 1 and prioritize use of regulating outlets over turbines for that time.
3. Draw down Lookout Point reservoir to the regulating outlets (750') by November 15 and hold until December 15. Conduct ungated spill at Lookout Point dam for 2-4 weeks in spring.
4. Conduct an additional draw down at Fall Creek dam to 728' from April 1 to June 30.[4]
5. Re-model [Operational Measures Evaluation Report] alternatives: drawdown of Detroit reservoir from fall through April, run-of-the-river operation at Cougar dam, and run-of-the-river operation at Lookout Point dam without assuming that the Corps must fulfill all authorized purposes of the Project.
6. Outplant adult hatchery Chinook salmon above Green Peter dam to study spawning success and juvenile downstream migration through Green Peter.
7. Reduce water temperatures below Lookout Point and Detroit dams in fall-winter by using the lowest regulating outlets to discharge colder water during draw down operations.
8. Adopt and strictly follow maintenance schedules and emergency protocols provided by NMFS and [Oregon Department of Fish and Wildlife (“ODFW”)] to reduce water quality impacts during such events.
9. The Corps must coordinate with NMFS and ODFW on implementation of the above measures, monitoring of the measures, adjustments of measures based on that monitoring, and other interim measures the Corps should take to benefit UWR salmon and steelhead.
10. The Corps must keep Plaintiffs and the Court apprised of its actions and the results, and the Court will resolve any disputes that arise over these measures.

Pls.' Mot. [36], at 34-35. The Marion County Defendants filed their Response [ECF 60] to Plaintiffs' Motion on February 25, 2019. The Federal Defendants also filed their Response [ECF 64] to Plaintiffs' Motion for Preliminary Injunction on February 25, 2019. Together with that Response, the Federal Defendants filed a Motion to Disqualify and Exclude Testimony of Richard Domingue and John K. Johnson [ECF 61], two of Plaintiffs' experts regarding the effect that the Willamette Project has on the protected salmonids and the feasibility and effectiveness of Plaintiffs' proposed operational changes. Plaintiffs filed a Response [ECF 74] to the Federal Defendants' Motion to Disqualify on March 11, 2019, and a Reply [ECF 75] in support of their Motion for Preliminary Injunction on March 19, 2019. The Federal Defendants filed a Reply [ECF 77] in support of their Motion to Disqualify on March 20, 2019. The Court heard oral argument on April 3, 2019, and took the matter under advisement on that date. As requested by the Court at oral argument, on April 11, 2019, Plaintiffs [ECF 82] and the Federal Defendants [ECF 81] filed respective timelines of the implementation of the RPA measures.

         DISCUSSION

         I. Federal Defendants' Motion to Disqualify

         The Federal Defendants contend the Court should disqualify the expert testimony of Richard A. Domingue and John K. Johnson on the basis that their testimony in this case violates the Ethics in Government Act, 18 U.S.C. § 207(a). Both Johnson and Domingue previously worked for NMFS on matters related to the 2008 BiOp.

         A. Le ...


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