United States District Court, D. Oregon, Portland Division
NORTHWEST ENVIRONMENTAL DEFENSE CENTER, WILDEARTH GUARDIANS, and NATIVE FISH SOCIETY, Plaintiffs,
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
Kaitlyn Poirier Environment & Natural Resources Division
Michael R. Eitel Attorneys for Defendants
L. Vulin Lawrence B. Burke Davis Wright Tremaine, LLP Robert
E. Miller Attorneys for Intervenor-Defendants City of Salem
and Marion County
E. Vetto Marion County Counsel Attorneys for
Intervenor-Defendant Marion County
OPINION & ORDER
A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiffs' Motion for
Preliminary Injunction  and the Motion to Disqualify and
Exclude the Testimony of Richard Domingue and John K. Johnson
 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.
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.
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
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.
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. 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.
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.
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.
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.
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.  ex. 2, at 11-40.
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.
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.  ¶ 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. 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).
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.
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.
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
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
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
4. Conduct an additional draw down at Fall Creek dam to
728' from April 1 to June 30.
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. , 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.
Federal Defendants' Motion to Disqualify
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.