Defenders of Wildlife et al v. United States Army Corps of Engineers et al

Filing 199

ORDER: IT IS ORDERED: Plaintiffs' 172 Motion for Summary Judgment on Claims 11-14 is DENIED; Federal Defendants'/Intervenor Defendants' 178 and 180 Cross-Motions for Summary Judgment on Claims 11-14 are GRANTED. Plaintiffs' request that the Court order the Bureau to finalize a plan to bring its operation at Intake Dam into compliance with the ESA (Claims 4 & 5) are DISMISSED WITHOUT PREJUDICE; and, Plaintiffs' request that the Court order the Corps to finalize a plan to bring its operation of Fort Peck Dam into compliance with the ESA (Claims 1 & 2) has been rendered moot and thereby is DISMISSED WITHOUT PREJUDICE. Signed by Judge Brian Morris on 7/20/2018. (SLR)

FILED
JUL 2 0 2018
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION

DEFENDERS OF WILDLIFE, and
NATURAL RESOURCE DEFENSE
COUNCIL
Plaintiffs,

Clen<. u.s District Court
District Of Montana
Great Falls

CV-15-14-GF-BMM

ORDER

vs.
UNITED STATES ARMY CORPS OF
ENGINEERS; UNITED STATES
BUREAU OF RECLAMATION; and
UNITED STATES FISH AND
WILDLIFE SERVICE,
Defendants
and
LOWER YELLOWSTONE
IRRIGATION PROJECT BOARD OF
CONTROL, SA VAGE IRRIGATION
DISTRICT, and INTAKE
IRRIGATION DISTRICT
Defendant-Intervenors .

I. BACKGROUND
This matter comes to the Court following an Order from the Ninth Circuit
that dissolved a preliminary injunction imposed by the Court on July 15, 2017.
(Doc. 185.) The United States Fish and Wildlife Service ("FWS") listed pallid
sturgeon as endangered in 1990. 55 Fed. Reg. 36,641. The largest wild pallid

sturgeon population in the world exists on the Missouri River between the Fort
Peck Dam and Lake Sakakawea. Fewer than 125 wild pallid sturgeons remain.
NBOROOOOOI8. The presence of the Fork Peck Dam on the Missouri River and the
Intake Dam on the Yellowstone River account, in large part, for this decline.
NBOR0000024. The Intake Dam sits approximately seventy miles upriver from the
confluence of the Yellowstone River and the Missouri River. These two barriers
prevent the pallid sturgeon from swimming far enough upriver to spawn
successfully.
After spawning, the pallid sturgeon larvae drift while they are developing.
NBOROOOOO16-17. The drift distance can range from 152 to 329 miles. /d. The
lower oxygen levels found in a lake environment significantly decrease pallid
sturgeon survival rates. NUSACEOOI5437-38. Larvae hatched below the Intake
Dam lack sufficient "drift distance" to develop before they reach the lower oxygen
levels in the water of Lake Sakakawea. Id. The larvae would have the opportunity
to develop sufficiently before they reached Lake Sakakawea if pallid sturgeon
could spawn upstream of the Intake Dam. This extra development time likely
would render the pallid sturgeon able to swim and thereby remain in the more
hospitable river environment.
The Corps operates the Fort Peck Dam. NUSACE0037198. The Corps
possesses discretionary control over the operation of Fort Peck Dam for multiple
2

purposes, including flood control, irrigation, hydropower generation, recreation,
and management of fish and wildlife. Id. The Corps has completed two formal
consultations with FWS that address the impacts of the agency's Fort Peck Dam
operations on pallid sturgeon. The first consultation occurred when FWS issued a
biological opinion ("2000 BiOp"). NUSACE0028982-290 14.
The 2000 BiOp determined that the Corps's operation at Fort Peck Dam
likely would jeopardize pallid sturgeon by precluding the species from successfully
reproducing in the wild. Id. The 2000 BiOp provided reasonable and prudent
alternatives ("RPAs"), as required by the ESA, that if implemented would have
allowed the Corps to comply with the ESA. The Corps failed to implement these
RPAs.
FWS issued an amended BiOp in 2003 ("2003 BiOp"). NUSACE26256­
553. FWS concluded again that the Corps's Fort Peck Dam operations jeopardize
the pallid sturgeon. NUSACE0026423-24. The 2003 BiOp prescribed a series of
RPAs that would have allowed for compliance with the ESA. NUSACE0026464­
86. The Corps again failed to implement the essential elements ofthese RP As. The
Corps and FWS re-initiated consultation on the Fort Peck Dam operations for a
third time in 2015. NBOROOOOOll.
The Bureau operates Intake Dam and oversees the four irrigation districts
known as the Lower Yellowstone Irrigation Project ("LYP"). NBOR0014429. The
3

Intake Dam consists of a wood structure topped with rocks along the crest. The
existing weir requires nearly annual replacement of rocks on the crest to hold back
sufficient water to service irrigation needs. NBOROOI4514-15. The Bureau
accomplishes this task currently with a series of large buckets transported on
cables above the river. Id.
The Bureau and the Corps adopted a plan in 2010 to construct a new
permanent concrete diversion dam, a rock-lined ramp over the dam for pallid
sturgeon passage, and a new headworks facility with fish screens to reduce the
entrainment offish in the irrigation canal. NBOR0004779. The Bureau and the
Corps constructed the new headworks facility in 2012. NBOR0017165. The
Bureau and the Corps abandoned the plan to build the concrete dam with a rock
ramp, however, primarily due to costs.
The Bureau and the Corps ultimately identified the construction of a new
dam and artificial bypass channel as the preferred solution ("the Project"). The
Bureau and the Corps intend to spend $57 million to replace the existing wood and
rock weir at Intake Dam with a concrete weir to ensure continued irrigation water
to the 56,800 acres currently serviced by Intake Dam. NBOR0014527-28.
Five pallid sturgeons successfully used a natural side channel around the
existing weir in 2014 during unusually high water. NBOR0000033-34, 38. Federal
Defendants decided that a new bypass channel, which would have sufficient flow
4

all the time, provided the best option to allow pallid sturgeon to navigate around
the proposed concrete weir. NBOROO 12310.

II. PROCEDURAL HISTORY
Plaintiff Defenders of Wildlife filed their initial Complaint in February of
2015. (Doc. 1.) The Court granted Plaintiff's Motion for Preliminary Injunction on
September 4, 2015, to enjoin Federal Defendant agencies ("Federal Defendants")
from initiating construction on the Project. The Court ordered Federal Defendants
to complete an Environmental Impact Statement ("EIS"). (Doc. 73.) The Court
specifically emphasized the need for Federal Defendants to analyze recovery of
pallid sturgeon and whether the Project would prevent recovery. The Court also
identified the need for Federal Defendants to analyze whether the Project would be
successful in providing passage past the Intake Dam for pallid sturgeon.
Federal Defendants completed an EIS and issued a biological opinion
("BiOp") in Fall of2016, and issued a Record of Decision ("ROD") on December
2,2016, in response to the Court's order. (Doc. 101 at 9.) The Court dissolved the
preliminary injunction on April 19,2017. (Doc. 118.) The Court also granted
Plaintiffs Motion for Leave to file a Fourth Supplemental Amended Complaint.

Id.
Federal Defendants' new National Environmental Policy Act ("NEPA")
decisional documents-the 2016 EIS and the 2016 ROD-sufficiently corrected
5

the Federal Defendants' NEPA violations at the heart of the original preliminary
injunction. (Doc. 118.) Plaintiff filed a Fourth Supplemental Amended Complaint
on April 20, 2017, that incorporated challenges to Federal Defendants' 2016 NEPA
and ESA documents. (Doc. 119).
The Court granted Plaintiffs Motion for a Preliminary Injunction to halt the
construction related to the Project and preserve the status quo on July 5, 2017.
(Doc. 155.) The Court reasoned that Plaintifflikely would succeed on the merits
for their ESA, NEPA, and CWA claims as contained in their Fourth Supplemental
Amended Complaint. The Ninth Circuit subsequently vacated this second
preliminary injunction on April 4, 2018. (Doc. 185.)
The Ninth Circuit determined that this Court improperly considered the
harm caused by the "continued operation of the existing weir" in its assessment of
the irreparable harm attributable to the Project. Id. at 3. This Court wrongly flipped
the burden to require that the Corps prove that the Project would allow successful
pallid sturgeon passage rather than require that Plaintiff prove irreparable harm. Id.
at 4. The Ninth Circuit further determined that this Court lacked any basis to
conclude that Plaintiff had established a likelihood of success on the meri ts ofits
claims under the ESA, NEP A, and the CWA. Id.
Plaintiff brings its current Motion for Summary Judgment on the basis of
Claims 1,2,4,5, and 11-14 of the Fourth Supplemental Amended Complaint.
6

Claims 1 and 2 challenge the decade-long operations of the Fort Peck Dam by the
Corps in violation ofthe ESA. Claims 4 and 5 challenge the decade-long
operations of the Intake Dam by the Bureau in violation ofthe ESA. Claim II
challenges the Corps's and the Bureau's 2016 EIS and ROD for violations of
NEPA. Claim 12 challenges FWS's 2016 BiOp for violations ofthe ESA. Claim
13 challenges the Corps's and the Bureau's reliance on the 2016 BiOp for
violations of the ESA. Claim 14 challenges the Corps's 2016 CWA approval ofthe
Project.

III. LEGAL STANDARD
A court should grant summary judgment where the movant demonstrates
that no genuine dispute exists "as to any material fact" and the movant is "entitled
to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment remains
appropriate for resolving a challenge to a federal agency's actions when review
will be based primarily on the administrative record. Pit River Tribe v. Us. Forest

Serv., 469 F.3d 768, 778 (9th Cir. 2006).
The Court reviews NEPA, ESA, and CW A compliance through the
Administrative Procedures Act ("AP A"). Native Ecosystems Council v. Dombeck,
304 F.3d 886, 891-91 (9th Cir. 2002); Friends ofthe Earth v. Hintz, 800 F.2d 822,
830-31 (9th Cir. 1986). The APA instructs a reviewing court to "hold unlawful and

7

set aside" agency action deemed "arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with Jaw." S US.c. § 706(2)(A).
APA review requires the Court to consider whether an agency based a
particular decision on "consideration of the relevant factors." Citizens to Pres.

Overton Park, Inc. v. Volpe, 401 US. 402, 416 (\971) (citations omitted). This
inquiry must be "thorough," "probing," and "in-depth." Jd. at 41S. The Court
generally must defer to the judgment of the agency. League of Wilderness Defs.­

Blue Mountains Biodiversity Project v. Us. Forest Serv., S49 F.3d 1211, 121S (9th
Cir.2008).
The Court should reverse a decision as arbitrary and capricious only where
"a clear error ofjudgment" has occurred. Id. This "clear error ofjudgment" may
entail the following scenarios: I) the agency's reliance on factors "Congress did
not intend [for] it to consider;" 2) the agency's failure to "consider an important
aspect of the problem;" 3) the agency's explanation "runs counter to the evidence"
or "is so implausible that it could not be ascribed to a difference in view or the
product of agency expertise." Id.

IV. ANALYSIS
A.

FWS's 2016 BiOp and Incidental Take Statement ("ITS") for the
Project does not violate the ESA.

The ESA serves as a safety net for species at risk of extinction and facilitates
the recovery of imperiled species. 16 U.S.c. § IS31(b). Section 7(a)(2) requires
8

federal agencies, in consultation with the expert wildlife agency, to ensure that
"any action authorized, funded, or carried out by such agency" is not likely to
jeopardize the continued existence of any endangered or threatened species or
result in the destruction or adverse modification ofthe species' designated "critical
habitat." 16 U.S.C. § 1536(a)(2), (4). To jeopardize a species means to "reduce
appreciably the likelihood of both the survival and recovery of a listed species in
the wild by reducing the reproduction, numbers, or distribution of that species." 50
C.F.R. § 402.02.
The ESA requires a consultation process that results in FWS issuing a
biological opinion ("BiOp"). The BiOp details whether the proposed federal action
likely would cause jeopardy and identifies RPAs. 16 U.S.c. § 1536(b)(3)(A).
RPAs encompass those actions that FWS "believes would not violate section
7(aX2) and can be taken by the federal agency in implementing agency actions."
16 U.S.C. § 1536(b)(3)(A).
Section 9 prohibits any person from "taking" members of an endangered
species offish or wildlife. 16 U.S.C. § 1538(a)(1)(B). "Take" means to "harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to
engage in any such conduct." 16 U.S.C. § 1532(19). The first part ofESA
consultation requires the agency to work with FWS to produce a BiOp that
concludes whether the proposed action would cause jeopardy. This BiOp may
9

determine, however, that the agency's proposed action could result in incidental
take of listed species.
The consulting agency, in this case, FWS, must issue an ITS to the action
agency. The ITS formulates the extent oftake, or, in the alternative, a surrogate for
triggering re-initiation of consultation between the agency and FWS. 16 U.S.c. §
l536(b)( 4). The ITS exempts the take from Section 9 liability when two conditions
have been fulfilled: the proposed federal action must result in take that remains
incidental to the proposed action and the terms and conditions of the ITS have been
fulfilled. 16 U.S.C. §§ 1536(b)(4); (0)(2).
i. FWS analyzed whether a take of fifty-nine percent of adult pallid

sturgeon approaching the Project would jeopardize the species.
Plaintiff argues that the mop fails to evaluate the impact of the fifty-nine
percent take of adult pallid sturgeon that would reach the Project each year. (Doc.
173 at 51.) Plaintiff further argues that the BiOp fails to analyze whether the
Project likely would jeopardize the species if that level oftake occurs. Plaintiff
argues that this omission by FWS likens the case to Southwest Center for
Biological Diversity v. Bartel, 470 F.Supp.2d 1118, 1155 (S.D. Cal. 2006). The

district court in Bartel deemed the BiOp unlawful where the BiOp recognized a
twelve percent take for two endangered fair shrimp species, but failed to evaluate
whether the species could withstand a loss of that magnitude. Id.

10

This Court previously found "unavailing" Federal Defendant's citations to a
BiOp that purportedly analyzed the impact of the authorized take limit. (Doc. 155
at 10.) The first BiOp citation described FWS's reasoning for choosing the fifty­
nine percent take figure and explained that FWS anticipated more successful
passage. fd. The second BiOp citation referred to the jeopardy finding without any
reference to the fifty-nine percent take authorization. !d. This Court determined
that softening the requirements of the jeopardy analysis on the basis that the ITS
included an overestimate of take did not make for sound public policy. !d. at 11.
This type of analysis would encourage agencies always to overestimate take in the
ITS. fd.
The Ninth Circuit disagreed. The Ninth Circuit determined that FWS had
articulated a "reasoned basis for the no-jeopardy finding in its Biological Opinion."
(Doc. 185 at 5.) The Ninth Circuit further determined that the "agency's approved
incidental take represents a substantial reduction in the impairment of breeding
caused in the project's absence." fd. The Ninth Circuit recognized that analysis of
the ITS and identification of a recovery goal sometimes may be needed to explain
the reasoned basis for an agency's no-jeopardy finding. fd. The Ninth Circuit
determined, however, that the Project required no such analyses. fd. The Ninth
Circuit also determined that this Court committed legal error when it treated the

11

absence of a specific ITS analysis and the failure to identifY a quantifiable recovery
goal as technical deficiencies that precluded a no-jeopardy finding in the BiOp.ld.
Federal Defendants contend that Plaintiff fails to recognize that FWS
already had concluded that the Project, including the post-construction adverse
effect of blocked passage, remained not likely to jeopardize pallid sturgeon. FWS
identified two general post-construction effects associated with the bypass channel:
(I) a beneficial effect of allowing more pallid sturgeon to pass than would
otherwise occur under existing conditions; and (2) an adverse effect associated
with some pallid sturgeon not using the constructed bypass channel.
NBOR0000050. FWS acknowledged that the only infonnation about how many
pallid sturgeon would use the bypass channel dated from 2014.
The ESA provides an explicit statutory sequence. The agency first must
determine whether adverse effects would jeopardize a species. 50 C.F.R. §
402.14(g). If the agency concludes the proposed action likely would not jeopardize
the listed species, the agency must consider the development of the ITS and the
surrogate trigger for reinitiating consultation. 16 U.S.C. § 1536(b)(4). The ITS
provides a "trigger" that when reached, results in an unacceptable level of
incidental take and requires the parties to reinitiate consultation. Arizona Cattle

Growers' Ass'n v. Us. Fish & Wildlife, 273 F.3d 1229, 1249 (9th Cir. 2001). FWS

12

complied with this statutory sequence in fonnulating an ITS trigger of fifty-nine
percent for reinitiating consultation.
FWS analyzed whether the Project, and specifically the post-construction
effects of the bypass channel, would jeopardize the pallid sturgeon before it
fonnulated its fifty-nine percent trigger in the ITS. NBOROOOOOSO. FWS
concluded that the Project, on balance, would not jeopardize the pallid sturgeon.
NBOR0000064. Plaintiff attempts to invert the statutory sequence. The ESA
imposes no obligation on FWS to perfonn a subsequent analysis on the ITS trigger.
16 U.S.C. § IS36(b)(4).
FWS recognized in the BiOp that migrating pallid sturgeon would face both
beneficial and adverse effects from the Project when they encountered the bypass
channel. NBOROOOOOS8-S9, SO. FWS concluded, on the whole, that the proposed
bypass channel would provide more reliable passage than the current channel as
the existing channel often lacks sufficient flows to fill for passage during spawning
season. NBOR000002S. The Court in Bartel found arbitrary the inconsistencies
between the agency's expectation of no impact on the vernal pools and the design
of the City's plan that allowed from nine percent to fourteen percent direct impact
on vernal pools habitat. Bartel, 470 F.Supp.2d at 1148. Unlike in Bartel, FWS
acknowledges that the Project would present adverse effects to the pallid sturgeon

13

population. FWS ultimately determined, however, that the Project on balance
"substantially improves the survival and recovery of the species." NBOR0000064.

ii.FWS evaluated the Project's impact on the pallid sturgeon's
survival and recovery.
Federal Defendants must analyze project impacts on survival and recovery
of the species. Nat'[ Wildlife Fed'n v. Nat'[ Marine Fisheries Servo ("NWF J"),
524 F.3d 917, 931 (9th Cir. 2008). Plaintiff contends that FWS failed to identify a
benchmark against which FWS can gauge the Project's impacts. Wild Fish

Conservancy v. Salazar, 628 F.3d 513,527-28 (9th Cir. 2010). Plaintiff argues that
FWS merely speculated that the Project would be an "improvement." Plaintiff
contends that this assertion by Federal Defendants fails to address whether the
Project would place pallid sturgeon survival and recovery at risk.
The Court determined in its preliminary injunction Order that Federal
Defendants failed to provide sufficient information to demonstrate that the Project
would improve a situation that they concede to be dire. The Court instructed
Federal Defendants to analyze whether the Project would improve the pallid
sturgeon's "plight to give it a chance at survival and recovery." (Doc. 155 at 16.)
The Court relied on National Wildlife Federation v. National Marine Fisheries

Service ("NWF II"), 184 F. Supp. 3d 861, 888 (D. Or. 2016), and NWF Hor the
assertion that the ESA requires a quantifiable recovery metric or goal.

14

The Ninth Circuit reversed on this point. The Ninth Circuit recognized that
identification of a "recovery goal may sometimes be needed to explain the
reasoned basis for an agency's no-jeopardy finding," but also concluded that such
analyses were not required in this case. (Doc. 185 at 5.) The Ninth Circuit stressed
that even though the BiOp did not identify a quantifiable recovery goal, the BiOp
adequately addressed the Project's overall positive impact on species recovery. [d.;

cl American Rivers v. Fed. Energy Regulatory Comm 'n, 2018 WL 3320810, at
*10 (D.C. Cir. 2018) (reversing renewal of license for hydropower dams based
upon FWS's failure to account for the impact of continued operations of the dams
in jeopardy analysis). The Ninth Circuit apparently interpreted Section 1(a)(2) as
remaining concerned with whether the action would cause too much harm, rather
than whether the action would improve a species' status. NWF J, 524 F.3d at 929­
30. Plaintiffs view conflicts with the regulatory definition of "jeopardize" under
this interpretation of Section 1(a)(2).
The Ninth Circuit determined in NWF I that nothing in Section 1(a)(2)
consultation requires action agencies to recover a species. NWF J, 524 F.3d at 936.
The ESA instead requires "some attention to recovery issues" to provide
"reasonable assurance that the agency action in question will not appreciably
reduce the odds of success for future recovery planning, by tipping a listed species
too far into danger." Id. FWS's analysis in the BiOp leads to the conclusion that
15

the proposed agency action provides a net positive for the pallid sturgeon. FWS
found that the pallid sturgeon's chance of survival and recovery likely would
increase once the Project has been completed. NBOR0000061. The Project does
not jeopardize the pallid sturgeon's "continued existence" in this context. 16
U.S.c. § 1536(a)(2).
iii. FWS supported its conclusion in the BiOp that the Project would
represent an improvement to the likelihood of survival and
recovery of the pallid sturgeon. FWS properly used the shovelnose
sturgeon population to compare with the pallid sturgeon
popUlation.

Plaintiff contends that pallid sturgeon survival and recovery in the wild
remains impossible without recruitment. Plaintiff argues that FWS failed to
analyze the three specific steps for recruitment of the species: (1) whether adults
would actually use the Project to migrate upstream; (2) whether enough adult
pallid sturgeons would migrate upstream to produce sufficient larvae at locations
that would make survival possible; and (3) whether sufficient larvae would survive
the downstream drift. Plaintiff cites these shortcomings in the BiOp's analysis.
Plaintiff next challenges what it considers the mop's arbitrary comparison
of the pallid sturgeon's larval survival during downstream drift to the shovelnose
sturgeon population. Plaintiff argues that the best available science indicates that
the shovelnose sturgeon do not compare to the pallid sturgeon due to significant
biological and behavioral differences. These differences include shovelnose
16

sturgeon larvae requiring only 58-155 miles of river habitat for their downstream
drift. NUSACE0024394. Pallid sturgeon larvae, by comparison, require 150-330
miles of river habitat for their downstream drift. NUSACEOOl92 16.
Federal Defendants argue that federal agencies do not have to guarantee
every stage ofthe pallid sturgeon lifecycle. See Ctr. for Biological Diversity v. Us.
Fish & Wildlife Serv., 807 F.3d 1031, 1052. There FWS entered a memorandum of

agreement with several non-federal entities who were subject to a Nevada State
Order regarding a ground water pumping project that had the potential to affect the
Moapa dace, an endangered fish species. The Ninth Circuit declined to broaden
FWS's obligations to ensure the survival of the Moapa dace in the face of state­
mandated ground water pumping. Id. The ESA instead required FWS to consider
"whether the action, taken together with the cumulative effects, is likely to
jeopardize the continued existence of the listed species." Id. The BiOp made clear
that the negative effects to the Moapa dace arose from state-mandated groundwater
pumping. FWS considered this groundwater pumping as part of the project's
cumulative effects outside the agency's controL Id.
FWS analyzed whether the bypass channel would improve upstream
migration. NBOR0000048-50. The agencies specifically designed the bypass
channel with a bottom type preferred by the pallid sturgeon. Id. FWS determined
that the bypass channel would provide specific flow volumes for both passage and
17

attraction. ld. FWS estimated that somewhere between forty-one percent and
eighty-five percent of motivated adult pallid sturgeon would use the bypass
channel. NBOR0000050. FWS acknowledged that significant uncertainty exists on
this point. NBOR0000053. FWS argues. however, that the biological parameters of
the bypass channel would allow motivated adults to migrate into the upper
Yellowstone River basin.ld. The ESA admittedly allows for some uncertainty.

Salazar, 606 F.3d at 1164. The existing scientific research does not allow FWS to
provide any more specificity or precision about where the pallid sturgeon would
spawn in the upper basin even if the Yellowstone River were to be restored to an
open river.
Federal Defendants further argue that FWS reasonably concluded in the
BiOp that potential spawning habitats exist in the upper Yellowstone River basin.
FWS tracked the upstream migration of one female and four males in 2014. FWS
presumed that the female spawned in the Powder River, a tributary to the
Yellowstone River upstream of the Intake Dam. NBOR00000025. FWS
determined that sufficient numbers of pallid sturgeon would be motivated to spawn
into this available habitat if reliable passage were provided, especially considering
the historical population of pallid sturgeon. NBOR0000034. FWS further
determined that hatchery pallid sturgeon soon will become sexually mature and
naturally would seek out spawning opportunities. NBOR0000063. These factors
18

support FWS's conclusion that the Project likely would improve the survival and
recovery of pallid sturgeon. Similar to Center for Biological Diversity, the Project
represents an improvement for pallid sturgeon and the Court will defer to the
findings of the BiOp. Ctr.for Biological Diversity, 807 F.3d at 1052.
The small number of wild adult pallid sturgeon forces FWS to rely on the
shovelnose sturgeon as a surrogate to anticipate the effects to larvae and to create a
monitoring protocol. NBOR0000056-57. A surrogate by definition need not be
identical. Ctr.for Biological Diversity v. Bureau ofLand Mgmt., 698 F.3d 110 I,
1127 (9th Cir. 2012). The Ninth Circuit recognized that "various components of
the ecological landscape ... [can] be used as a surrogate for defining the amount or
extent of take if the conditions [are] linked to the take of the protected species." Jd.
FWS acknowledged the differences between the shovelnose sturgeon and
pallid sturgeon. NBOR0000057. It remains reasonable for FWS to evaluate the
specific interaction between the existing weir and shovel nose sturgeon larvae to
provide some idea as to how a new weir might affect pallid sturgeon larvae as
these present similar interactions. NBOR0000057; Ctr. for Biological Diversity,
698 F.3d at 1127. The Court must defer to FWS's scientific judgment in choosing
to use the shovelnose sturgeon as a surrogate.

19

iv. FWS evaluated the short-term impacts of the Project in the
context of a rapidly declining pallid sturgeon population.
Plaintiff argues that the Ninth Circuit continually has rejected BiOps that
ignore short-term effects and only examine whether long-term effects would be
beneficial. NWF 1,524 F.3d at 934-35. The Ninth Circuit in NWF I rejected a
biological opinion where it failed to consider the impacts of the project in the
context ofthe three-salmon species' short life cycles. Id.
FWS conceded that no upstream passage would occur during construction of
the Project. NBOR0000062. Plaintiff contends that the long lifespan of pallid
sturgeon does not excuse the BiOps' failure to examine the short-term effects of
the Project. Plaintiff points to the fact that the few remaining wild pallid sturgeon
nearing the end of their lifespan remain at risk during construction of the Project.
Plaintiff further contends that no support exists that hatchery raised pallid sturgeon
can or would successfully reproduce. NBOR0000023.
FWS considered the short-term adverse effects of continued maintenance of
the existing weir, possible interactions with the fish screens, as well as the adverse
effects caused by construction ofthe bypass channel. NBOR0000043-47. FWS
recognized that the existing high flow channel would need to be filled during
construction. NBOR0000047. This existing high flow channel provides only
occasional access for pallid sturgeon passage during the highest water years. In
fact, the record indicates that only a handful of pallid sturgeon have used the high
20

flow channel in the past during perfect water conditions. Jd. FWS estimated that
the existing bypass channel would contain enough water for the pallid sturgeon to
use it, statistically speaking, during one year of construction of the new bypass
channel. Jd.
FWS further estimated that about thirty-two adult wild pallid sturgeon would
be blocked from spawning by the construction ofthe Project. These pallid sturgeon
represent approximately twenty-six percent of the current adult wild population.
FWS considered this blockage to constitute a "temporary, but significant
impairment of breeding and is considered an 'injury' to the sturgeon."
NBOR0000058. The impairment represents the status quo, however, as it does not
actually change the current reproduction, numbers, or distribution of pallid
sturgeon in the action area. Jd.
The ESA further contemplates artificial propagation to conserve or recover
listed species. 16 U.S.C. § 1532(a). The Ninth Circuit has recognized that hatchery
fish appropriately may be considered under the ESA. Trout Unlimited v, Lohn, 559
FJd 946, 955 (9th Cir. 2009). National Marine Fisheries Service ("NMFS") in
Lohn rejected petitions filed by Trout Unlimited that sought to split natural and

hatchery fish into separate evolutionarily significant units ("ESU"), or in other
words, species. Jd. at 953. The Ninth Circuit disagreed.

21

The ESA required NMFS to "detennine whether any species is an
endangered species or a threatened species." 16 U.S.C. § 1533(a)(l). A species, in
turn, includes "any subspecies offish or wildlife or plants, and any distinct
population segment." 16 U.S.C. § 1532( \6). The Ninth Circuit concluded that
review of the entire ESU remained consistent with the ESA's overall focus on
preserving natural populations. Lohn, 559 F.3d at 958. Federal Defendant likewise
reasonably relied on the hatchery pallid sturgeon when considering the short-tenn
effects ofthe Project as hatchery fish appropriately may be considered under the
ESA. Id. The Ninth Circuit detennined, in reversing the Court's preliminary
injunction Order, that "the agency articulated a reasoned basis for the no-jeopardy
finding in its BiOp." (Doc. 185 at 5.) This no-jeopardy finding contemplated
hatchery fish.
v.

FWS issued a lawful ITS under the statute and regulations.

FWS's regulations expressly provide for the use of another species to serve
as a surrogate in the ITS. 50 C.F.R. § 402.14(i)(1 )(i). FWS's ITS recognizes that if
the Project were constructed and pallid sturgeon spawn successfully upstream,
larvae produced by this spawning may be killed or injured at the Project site during
the drift downstream. FWS relies on a surrogate, the shovelnose sturgeon, to
measure the allowable take and provide a trigger for re-initiation of consultation.

22

No pre-existing data exists for FWS to analyze. FWS cannot measure the
number of pallid sturgeon larvae drifting down the river after the Project's
completion to determine whether the concrete weir would present a larger impact
on take than otherwise would occur. To monitor the shovelnose sturgeon surrogate,
FWS required the Bureau to "establish a rate of occurrence, injury and death from
the screens and new weir structure." NBOR0000069. The Bureau will continue to
monitor for shovelnose and pallid larva after completion of the Project. [d. From
this data the Bureau will compare the rate of occurrence, injury, and death for
pallid and shovelnose larvae. [d. The level of exempted take would be exceeded if
there proves to be a "statistically significant deviation in the survival, death or
injured rates between pallid and shovelnose" larva. The Bureau would be required
to reinitiate consultation under these circumstances. [d.
Plaintiff argues that FWS failed to set a clear standard for determining when
the level oftake has been exceeded and provided no meaningful trigger for the re­
initiation of consultation. Plaintiff contends that FWS's reliance on the shovelnose
sturgeon as a surrogate proves unlawful as the surrogate does not measure
accurately the effects of take on the pallid sturgeon population. Plaintiff suggests
that FWS has failed to support its conclusion that the shovelnose sturgeon remains
adequately linked to the pallid sturgeon. Plaintiff further argues that a clear

23

violation of the ESA occurs when the ITS allows take of all adult pallid sturgeon
during construction of the Project.
Re-initiation of consultation "is required ... if new information reveals
effects of the action that may affect listed species ... in a manner or to an extent
not previously considered." 50 C.F.R. § 402.l6(b). The best available data
suggests, and FWS agrees, that there would be only a "very small level of
mortality" of pallid sturgeon larvae. NBOR0000052. As a result of this
assumption, re-initiation would be triggered if monitoring demonstrates that 100
percent, or even a significant number ofiarvae, are killed by the Project. 50 C.F.R.

§ 402. 16(b). FWS lawfully may use a surrogate. Ctr.for Biological Diversity, 698
F.3d at 1127. In the absence of data regarding pallid sturgeon larvae it proves
reasonable that FWS used the shovelnose sturgeon as a surrogate to determine
whether the Project would cause take of pallid sturgeon larvae at the weir beyond
the very small amount of mortality currently contemplated. Id.
The ITS identifies that adult pallid sturgeon take may occur during the
construction phase. NBOR0000067. FWS estimates that up to thirty-two pallid
sturgeon would be taken in the form of harm by injury through impairment of
reproduction. /d. FWS included the trigger for this form of take. Id. The thirty-two
pallid sturgeon will be represented by a percentage of the telemetered population.
Id. The tagging effort of wild pallid sturgeon for telemetry data continues each
24

year as part of ongoing monitoring. NBOR0000044. On average thirty-six percent
of the wild pallid sturgeon population are telemetered. Id. FWS assumed that up to
twenty-six percent of the telemetered population could be detected at the Intake
Dam in any given year. A detected portion of the telemetered population at the
weir greater than twenty-six percent would mean that a larger portion ofthe
population proves present and are impeded from passing above the weir. Id. Re­
initiation would be triggered in this scenario. The Court will defer to FWS in
providing the trigger in the ITS for re-initiation.

B.

The Bureau's and the Corps's reliance on the BiOp to authorize the
Project did not violate their ESA section 7 substantive duty.

Plaintiff argues that the Bureau and the Corps possess an independent duty
to ensure that their actions likely would not to jeopardize pallid sturgeon. Plaintiff
contends that the Bureau and the Corps knew of the deficiencies in the BiOp and
that independent biologists repeatedly have raised significant concerns about the
Project's ability to provide for pallid sturgeon survival and recovery.
A federal agency may not evade its responsibility to ensure that its actions
will not jeopardize a listed species. Pyramid Lake Paiute Tribe ofIndians v. Us.
Dep'! ofNavy, 898 F.2d 1410, 1415 (9th Cir. 1990). An agency's decision to rely

on a biological opinion must not be arbitrary or capricious. Id. An agency's
reliance on a biological opinion will satisfy its obligation under the ESA, however,
even ifthe agency bases the biological opinion on "admittedly weak" information,
25

as presented here, if the challenging party can point to no new information that
undermines the biological opinion's conclusions. Id.
For instance, the Pyramid Lake Paiute Tribe ofIndians ("Tribe") brought an
action against the Department of Navy ("Navy"). The Tribe alleged that the Navy's
practice ofleasing acreage and contiguous water rights to local farmers threatened
the continued viability of the cui-ui, a rare fish species, in violation of the ESA.
The Ninth Circuit determined that the Navy had not arbitrarily or capriciously
relied on the "admittedly weak" biological opinion as the Tribe had failed to put
forth any new information that FWS should have considered in rendering the
biological opinion. Id. at 1416.
The Court recognizes that significant deficiencies exist in the BiOp,
particularly with regard to its "admittedly weak" information on whether pallid
sturgeon actually would use the proposed bypass channel. Similar to Pyramid
Lake, however, Plaintiff has pointed to no new information that demonstrates that

the Bureau's and Corps's actions proved arbitrary and capricious. Id. Plaintiff
possesses the affirmative burden to establish a violation of Section 7(a)(2) ofthe
ESA to demonstrate that the Bureau and the Corps are jeopardizing a listed
species. Plaintiff may not simply perceive deficiencies in the BiOp.
Plaintiff has failed to carry the burden contemplated in Pyramid Lake. The
continued existence of the weir remains exempt from the Plaintiffs ESA challenge
26

to the Project. (Doc. 185 at 3.) This exemption means that Plaintiff cannot rely on
the current weir to demonstrate that the agencies' actions would jeopardize pallid
sturgeon. The Corps and the Bureau are attempting to implement a high priority
action that furthers the recovery of pallid sturgeon. Plaintiff has failed to
demonstrate how this action would jeopardize the listed species beyond its current
dire circumstance. Pyramid Lake, 898 F .2d at 1415.

C.

The Bureau's and the Corps's ROD and EIS for the Project does not
violate NEPA.

NEP A mandates no particular result. It simply prescribes necessary
processes that the federal agencies must follow when contemplating a major
federal action. Vt. Yankee Nuclear Power Corp. v. Nat. Res. Del Council, 435 U.S.
519, 558 (1978). NEPA requires federal agencies: (1) to take a "hard look" at the
environmental impacts of their proposed actions, and (2) to ensure transparency by
providing a mechanism for the public to learn about and comment on the impacts
of a proposed action. Robertson v. Methow Valley Citizens Council, 490 U.S. 332
(1989). Agencies must prepare an EIS for any "major federal actions significantly
affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). The
Court previously determined that Federal Defendants had failed in this duty when
it ordered Federal Defendants to complete an E1S. (Doc. 73).
Plaintiff argues that the agencies once again have failed in the EIS to present
the public with a clear, meaningful, and candid comparison between the
27

environmental consequences of the Bypass Channel and the Multiple Pumps
Alternatives. Plaintiff relies heavily on this Court's previous conclusion that
Plaintiff remained likely to prevail as the EIS obscured the differences between the
impacts of the Multiple Pumps and the Bypass Channel Alternatives. (Doc. 155 at
24.)
The Ninth Circuit in Center for Biological Diversity v. US. Department of

Interior ('fCBD"), 623 F.3d 633, 645 (9th CiL 2010), determined that an EIS
proved insufficient when it equated the environmental impacts of transferring
ownership of public land to a mining company with the impacts of keeping
ownership in the hands of the federal government. Id. at 636. CBD makes clear that
an agency violates NEP A when it arbitrarily reaches a conclusion without
analyzing a critical distinction between two proposed alternatives. Id.
Federal Defendants argue that Plaintiff focuses on a single summary table,
Table 2-39, in construing this claim. Federal Defendants contend that this table
presents a qualitative comparison of the impacts of the different alternatives.
Federal Defendants argue that the comments provided by the public throughout the
process demonstrate that the agencies satisfied their obligation to provide candid,
accurate information regarding the effects of the proposed alternatives.
The Ninth Circuit concluded that this Court's analysis failed to support its
arbitrary and capricious finding in issuing the preliminary injunction. (Doc. 185 at

28

6.) The Ninth Circuit cites the agencies' analysis of the differing environmental
consequences ofthe Bypass Channel and the Multiple Pumps Alternative. The
Ninth Circuit detennined that the agencies in this case perfonned the appropriate
analyses. [d. As such, the standard from CBD does not appear to apply in this
situation.
The FEIS, as a whole, proved adequate for Plaintiff and the public to
identify and understand the differences among the alternatives being studied. The
FEIS further proved to be adequate for Plaintiff and the public to fonnulate their
objections as evidenced by the public comments submitted. The Bureau's and the
Corps's ROD and EIS for the Intake Project does not violate NEPA.
D.

The Corps selected the Bypass Channel Alternative in accordance
with the Section 404(b)(1) Guidelines.

The CW A prohibits the Corps from issuing a § 404(b) pennit for projects
that involve the discharge of dredged or fill material into waters of the United
States if a Jess damaging practicable alternative exists. 40 C.F.R. § 230JO(a).
Practicable alternatives must be "available and capable of being done after taking
into consideration cost, existing technology, and logistics in light of overall project
purposes." 40 C.F.R. § 230.10(a)(2). To compare the impacts of practicable
alternatives, the Corps must analyze specific categories of aquatic ecosystem
impacts, including impacts to ESA-listed species. 40 C.F.R. § 230.11.

29

Plaintiff argues that the Corps's CWA analysis of the Project's aquatic
ecosystem impacts applied the wrong standard under 40 C.F.R. § 230.10(a} by not
comparing practicable alternatives. (Doc. 173 at 83.) Plaintiff contends that the
Corps instead arbitrarily assumed that the Bypass Channel "has a similar scale of
environmental impacts as the other alternatives." Jd.; NBOROOI8659. Plaintiff
contends that Multiple Pumps Alternative represents the least environmentally­
damaging alternative as it would provide a more beneficial impact on aquatic
biological characteristics by restoring a free-flowing, natural Yellowstone River.
(Doc. 173 at 84.)
Plaintiff contends that the Corps must disapprove the Project absent a
determination that the less invasive Multiple Pumps Alternative would be
impracticable. See Utahnsfor Better Transp. v. US. Dep'tofTransp., 305 F.3d
1152, 1187 (lOth Cir. 2002). The Corps determined that the Bypass Channel would
be more practicable than the MUltiple Pumps Alternative in light of the extra costs
of construction and annual maintenance associated with the Multiple Pumps
Alternative. Plaintiff contends that the relevant CWA standard does not
contemplate inquiry into the relative practicalities of alternatives. Del. Riverkeeper
v. Us. Army Corps ofEng'rs, 869 F.3d 148, 159-60 (3d Cir. 2017).
Federal Defendants counter that Plaintiff misstates the Project's "overall
purpose." This misstatement improperly tips the scales against an objective
30

assessment of the Corps's application of the Guidelines. Sylvester v. Us. Army

Corps ofEng'rs, 882 F.2d 407, 409 (9th Cir. 1989). Federal Defendants contend
that the Corps must consider the Project's overall objectives when applying the
Guidelines' "practicable alternative" analysis. The purpose ofthe proposed action
remains "to improve fish passage for pallid sturgeon and other native fish at Intake
Diversion Dam, continue the viable and effective operation of the L YP, and
contribute to ecosystem restoration." NBOROOI8642. The Corps determined that
the Multiple Pumps Alternative does not represent a "practicable alternative" that
would have a less adverse impact on the aquatic ecosystem when considered
against the Project's overall objectives. These overall objectives include the
continued viable and effective operation of the LYP.
The Multiple Pumps Alternative would improve passage for the pallid
sturgeon. It remains in doubt, however, whether the Multiple Pumps Alternative
would satisfy the Project's purpose of "continuing the viable and effective
operation of the L YP." The Corps's CWA Analysis detennined the Multiple
Pumps Alternative's practicability to be "highly questionable" as a result of its
inherently complicated design of gravity combined with pumps that require
"highly precise timing on the startup and shutdown of each pump."
NUSACE0004921, NUSACE0006644. The Corps and the Bureau concluded that
using the MUltiple Pumps Alternative design would result in pumping volumes that
31

"will be highly variable from year to year" and that the "risk of [canal] bank
failures would increase due to the multiple locations of pumped inflows" and the
attendant need for additional monitoring and coordination. Id.
The Corps applied the Guidelines and identified concerns over the Multiple
Pumps Alternative's impacts on the economic viability of the L YF. The Multiple
Pumps Alternatives involved an estimated cost of construction of$132 million.
The expected cost of maintenance would be $4.9 million per year. These higher
construction and maintenance costs could have a direct impact on its
"practicability." These costs also may undermine the Project's overall purpose
when considering the viable and effective operation ofthe L YF.
The Ninth Circuit in Hintz, 800 F.2d at 833, reviewed a CWA § 404 permit.
The Army Corps of Engineers issued a CWA § 404 permit that authorized a
landowner to fill a seventeen-acre area as part of its sawmillliog export complex.
The landowner listed two other practicable alternative sites for its sorting yards.
The landowner argued, however, that either of the alternative sites would include
substantial additional costs. Id. at 833. The Ninth Circuit upheld the Corps's
determination that "no practicable alternative existed" considering the "substantial
additional costs" and complex logistics associated with the project. Id.; 40 CoF .R. §
230. lO(a)(2) ,

32

The Ninth Circuit similarly determined in Jones v. National Marine
Fisheries Service, 741 F.3d 989, 1001 (9th Cir. 20l3), that an agency may consider

a project's economic requirements to determine whether alternative sites would be
practicable. The Corps may not allow the present unavailability of sufficient
financial resources, however, to be the main determinant to a finding of
impracticability. Nat 'I Wildlife Fed'n v. Adams, 629 F.2d 587, 593 (9th Cir. 1980).
The Ninth Circuit in this matter determined that the Corps expressly found that no
practicable alternative to the proposed project existed that would have a less
adverse impact on the sturgeon populations. (Doc. 185 at 7.) The Ninth Circuit
further determined that ample evidence in the record provided support for the
determination that no practicable alternative existed. Id.
The Corps, in conducting the CW A analysis, must compare the impacts of
practicable alternatives, including analyzing specific categories of aquatic
ecosystem impacts. 40 C.F.R. § 230.11. The Corps correctly completed this
analysis even though the Multiple Pumps Alternative had been designed only to a
conceptual level at the time of the PElS. This analysis proved sufficient in light of
the agencies having applied the Corps's cost estimating guidance to update project
prices, "adopted contingencies to reflect" the incomplete data associated with each
alternative's design stage, and "attempted to maintain similar assumptions across
all five alternatives." NUSACE0006262; NUSACE0006271.
33

E.

The Bureau ensured tltat its existing operation of the Intake Dam did
not jeopardize the pallid sturgeon.

Plaintiff argues that the Bureau's continued operation of the Intake Dam,
specifically the yearly rocking, violates the Bureau's independent, substantive duty
under ESA section 7 to ensure that its actions do not jeopardize listed species.
Plaintiff contends that the evidence accumulated over more than two decades
proves that the Intake Dam operations prevent pallid sturgeon from successfully
reproducing in the Yellowstone River. Plaintiff argues that the Bureau improperly
takes pallid sturgeon through its ongoing operation ofthe Intake Dam without a
valid ITS by preventing the pallid sturgeon from breeding upstream. The 2016
BiOp and ITS address only the ongoing operation of the Intake Dam in the context
of the BiOp's assumption that the Project would replace the existing dam. (Doc.
182 at 55.)
The ESA must not be applied retroactively. Tennessee Valley Auth. v. Hill,
437 U.S. 153, 186 n. 32 (1978). The Ninth Circuit further has recognized that the
existence of a statutorily authorized dam, as opposed to the operation of a dam,
cannot violate a federal statute unless "a clear and manifest" intention remains to
repeal the prior Congressional authorization. Nat 'I Wildlife Fed'n v. Us. Army

Corps ofEng'rs, 384 F.3d 1163, 1178 (9th Cir. 2004). NWF contended that the
ROD arbitrarily and capriciously had distinguished between the Corps's operation
of the dams and the existence ofthe dams. The Ninth Circuit determined that
34

review of the Corps's conclusions in the ROD did not extend to Congress's
decision to create the darns sixty years earlier. Id.

It remains clear that no clear Congressional repeal occurred in this case. The
existing weir, constructed in 1910, clearly pre-<iates the ESA. Plaintiff must
provide some new evidence that the agencies' proposed action renders arbitrary the
agencies' course of action. Pyramid Lake, 898 F.2d at 1415. As noted previously,
the Ninth Circuit in Pyramid Lake upheld a federal agency's reliance on a faulty
biological opinion when the challenging party failed to bring forth any new
information that the agency should have considered in rendering the BIOp. fd. at
1416.
Plaintiff focuses on the Irrigation District's yearly rocking of the weir.
Plaintiff has failed to demonstrate, however, how this action reduces
"reproduction, numbers, or distribution" of the species when the yearly rocking
maintains the status quo over the last 100-plus years. 50 C.F.R. § 402.02. FWS
determined that the rock debris field would still block passage for decades to come
even if the Irrigation District failed to perform the yearly rocking. NBOR0000043
n. 6. Plaintiffhas failed to present new information to demonstrate that the Bureau
and the Corps further jeopardize the pallid sturgeon through their yearly rocking of
Intake Darn.

35

This detennination derives from the assumption that the Corps and the
Bureau will complete the Project contemplated here. The Court will dismiss
Plaintiffs claims without prejudice to allow it to refile the claims in the event that
the Corps and the Bureau fail to follow through with their plan to develop the
Project with its new bypass channel.

F.

Plaintiff's ESA challenge to the Corps' Operation and Maintenance
of Fort Peck Dam proves moot at this stage.
Plaintiff contends that the Corps's operation of the Fort Peck Dam violates

its ESA section 7 substantive duty to avoid jeopardy and violates its ESA section 9
prohibition against unpermitted take. Plaintiff alleges that these claims constitute
substantive violations of sections 7 and 9 of the ESA. Plaintiff insists that they do
not challenge either the Corps's failure to comply with section 7's procedural
obligation to complete consultation, or the merits of the 2003 BiOp.
Federal Defendants argue that the Corps's re-initiation of consultation with
FWS on July 31, 2015, rendered "prudentially moot" Plaintiffs sections 7 and 9
claims. Federal Defendants further argue that the FWS's issuance of its new BiOp
on the Missouri River system will render these claims constitutionally moot.
FWS's new BiOp will supersede the 2003 BiOp.
A federal court's jurisdiction is limited to cases or controversies. U.S. Const.
art. III, § 2. A claim will be deemed moot if it has lost its character as a present,
live controversy. Am. Rivers v. Nat '/ Marine Fisheries Serv., 126 F.3d 1118, 1124
36

(9th Cif. 1997). The claim must be dismissed if an event occurs that prevents the
court from granting effective relief. Id.
The agency's initiation of consultation under section 7(a)(2), triggers the
operation of section 7(d). 16 U.S.C. § J536(d). Section 7(d) provides that H[a]fter
initiation of consultation" an agency "shall not make any irreversible or
irretrievable commitment of resources" that would foreclose "the formulation or
implementation of any reasonable and prudent alternative measures which would
not violate subsection (a)(2)." Plaintiff does not argue, however, that the Corps has
violated section 7(d). Plaintiff has made no allegations that the Corps irreversibly
or irretrievably have committed resources that would preclude formulation of a
reasonable and prudent alternative.
The administrative record demonstrates that the Corps re-initiated
consultation in July 2015. This re-initiation rendered prudentially moot the claims
against the Corps's operations of the Fort Peck Dam. Hunt v. Imperial Merchant
Servs., 560 F.3d 1137 (9th CiL 2009). These same claims will be rendered

constitutionally moot when FWS completes the consultation and issues its new
BiOp. Am. Rivers, 126 F.3d at 1124. Plaintiffs claims must be dismissed for lack
ofjurisdiction at this point.
The Court notes that the 2000 BiOp contemplated a number of RP As that
could have allowed the Corps to comply with the ESA. NUSACE0028982-29014.
37

The Corps failed to implement the RPAs contemplated by both the 2000 BiOp.
The Court further notes that the 2003 mop contemplated a number ofRPAs that
could have allowed the Corps to comply with the ESA. NUSACE0026464-86.
Once again the Corps failed to implement the RPAs contemplated by the 2003
BiOp. This record provides little comfort that the Corps will implement any RP As
that may arise from the 2015 re-initiation of consultation between the Corps and
FWS regarding the operation ofthe Fort Peck Dam. As noted previously, the Corps
and the Bureau have chosen instead to focus all their efforts, and associated
burdens, in attempting to comply with the ESA on the Intake Dam and the
proposed Project.
The Court agrees that the Corps's actions have rendered moot Plaintiffs
claims regarding Fort Peck Dam at this time. The Corps and the Bureau cannot
continue to stall implementation ofRPAs described in each succeeding BiOp, and
avoid complying with the mandates of the ESA, as enacted by Congress, however,
simply by engaging in serial re-initiation of consultation to develop RP As that the
Corps and the Bureau have shown little appetite to implement. The day of
reckoning will come when the Corps and the Bureau must actually complete the
consultation process with the incorporation ofRPAs, as no one, including the
Corps and the Bureau, stands above the law.

38

V. CONCLUSION
For the foregoing reasons, IT IS ORDERED:
Plaintiff's Motion for Summary Judgment (Doc. 172) on Claims 11-14 is
DENIED;
Federal Defendants'/Intervenor Defendants' Cross-Motions for Summary
Judgment (Docs. 180 & 178) on Claims 11-14 are GRANTED;
Plaintiff's request that the Court order the Bureau to finalize a plan to bring
its operation at Intake Dam into compliance with the ESA (Claims 4 & 5) is
DISMISSED WITHOUT PREJUDICE; and
Plaintiff's request that the Court order the Corps to finalize a plan to bring
its operation of Fort Peck Dam into compliance with the ESA (Claims 1 & 2) has
been rendered moot and thereby is DISMISSED WITHOUT PREJUDICE.
Dated this 20th day of July, 2018.

Brian Morris
United States District Court Judge

39