National Wildlife Federation et al v. National Marine Fisheries Service et al

Filing 2394

ORDER - The Court GRANTS Intervenor CSRIA's Motion to Amend Answer and Cross Claim (ECF 2366 ). The Court also GRANTS the Federal Defendants' Motion to Dismiss CSRIA's Cross Claim (ECF 2362 ), applying the motion against CSRIA's Amended Cross Claim. Signed on 8/12/2021 by Judge Michael H. Simon. (mja)

Case 3:01-cv-00640-SI

Document 2394

Filed 08/12/21

Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

AMERICAN RIVERS, et al.,
Plaintiffs,

Case No. 3:01-cv-640-SI
ORDER

and
STATE OF OREGON, et al.,
Intervenor-Plaintiffs,
v.
NATIONAL MARINE FISHERIES
SERVICE, et al.,
Defendants,
and
NORTHWEST IRRIGATION UTILITIES,
et al.,
Intervenor-Defendants.
Michael H. Simon, District Judge.
Intervenor-Defendant Columbia-Snake River Irrigators Association (CSRIA) asserts a
cross claim against Defendants Army Corps of Engineers (Corps) and Bureau of Reclamation
(BOR) (Moving Defendants), alleging they violated the National Environmental Policy Act
PAGE 1 – ORDER

Case 3:01-cv-00640-SI

Document 2394

Filed 08/12/21

Page 2 of 7

(NEPA). CSRIA asserts that the Corps and BOR failed properly to consider how alternatives
evaluated in the Final Environmental Impact Statement (FEIS) on the Federal Columbia River
Power System that were not selected as the preferred alternative would affect CSRIA and failed
properly to consider mitigation for those unselected alternatives. The Moving Defendants move
under Rule 12(b)(1) of the Federal Rules of Civil Procedure to dismiss CSRIA’s cross claim for
lack of subject matter jurisdiction, arguing that CSRIA lacks standing because it fails to allege
the requisite injury and redressability. The Moving Defendants contend that CSRIA’s allegations
are insufficient because they allege injury from alternatives that were not selected instead of any
problem with, or injury caused by, the preferred alternative in the FEIS.
In response, CSRIA moves to amend its cross claim. CSRIA seeks to add a claim that the
Moving Defendants failed to consider an adequate range of alternatives in the FEIS. CSRIA also
purports to clarify its alleged harm from the unselected alternatives. The Moving Defendants
argue that the proposed amended cross claim suffers from the same deficiencies as the original
cross claim, because CSRIA still challenges only alternatives that are not the preferred
alternative and does not argue that it is or will be harmed by the alternative chosen by the
agencies. For the reasons discussed below, CSRIA’s motion to amend is granted and the Moving
Defendants’ motion to dismiss is granted against the amended cross claim.
STANDARDS
The U.S. Constitution confers limited authority on the federal courts to hear only active
cases or controversies brought by persons who demonstrate standing. See Spokeo, Inc. v. Robins,
136 S. Ct. 1540, 1546-47 (2016); Already, LLC v. Nike, Inc., 568 U.S. 85, 89-90 (2013).
Standing “limits the category of litigants empowered to maintain a lawsuit in federal court to
seek redress for a legal wrong.” Spokeo, 136 S. Ct. at 1547. A plaintiff’s standing under Article
III of the United States Constitution is a component of subject matter jurisdiction properly
PAGE 2 – ORDER

Case 3:01-cv-00640-SI

Document 2394

Filed 08/12/21

Page 3 of 7

challenged under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Chandler v. State Farm
Mut. Auto. Ins. Co., 598 F.3d 1115, 1121 (9th Cir. 2010). On a motion to dismiss for lack of
subject matter jurisdiction under Rule 12(b)(1), it is the burden of the party asserting jurisdiction
to establish the existence of subject matter jurisdiction. Id. at 1122; see also Kingman Reef Atoll
Invs., LLC v. United States, 541 F.3d 1189, 1197 (9th Cir. 2008).
A motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction may be
either “facial” or “factual.” See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.
2004). A facial attack on subject matter jurisdiction is based on the assertion that the allegations
in the complaint are insufficient to invoke federal jurisdiction. Id. “A jurisdictional challenge is
factual where ‘the challenger disputes the truth of the allegations that, by themselves, would
otherwise invoke federal jurisdiction.’” Pride v. Correa, 719 F.3d 1130, 1133 n.6 (9th Cir. 2013)
(quoting Safe Air for Everyone, 373 F.3d at 1039). When a defendant factually challenges the
plaintiff’s assertion of jurisdiction, a court does not presume the truthfulness of the plaintiff’s
allegations and may consider evidence extrinsic to the complaint. See Terenkian v. Republic of
Iraq, 694 F.3d 1122, 1131 (9th Cir. 2012); Safe Air for Everyone, 373 F.3d at 1039. A factual
challenge “can attack the substance of a complaint’s jurisdictional allegations despite their
formal sufficiency.” Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1996) (citation and
quotation marks omitted).
BACKGROUND
In January 2021, Plaintiffs filed their eighth supplemental complaint (Complaint). The
Complaint challenges the July 24, 2020 Biological Opinion (2020 BiOp) issued by the National
Marine Fisheries Service (NMFS) under the Endangered Species Act and the Administrative
Procedure Act. Plaintiffs request that the Court vacate the 2020 BiOp and incidental take
statements. ECF 2311 at 71. Plaintiffs also challenge the Corps and BOR’s FEIS and their Joint
PAGE 3 – ORDER

Case 3:01-cv-00640-SI

Document 2394

Filed 08/12/21

Page 4 of 7

Record of Decision (ROD). The Complaint requests that the Court “[v]acate the 2020 ROD and
remand the CRSO FEIS to the Corps and BOR.” Id. at 72.
In the FEIS, six alternatives were proposed and analyzed, and the agencies chose a
Preferred Alternative. CSRIA does not allege that the Preferred Alternative violates NEPA or
harms CSRIA’s members. Instead, CSRIA objects to measures within Multiple Objective 3
(MO3) and Multiple Objective 4 (MO4). Specifically, CSRIA alleges that the BOR and Corps
failed properly to evaluate how breaching the four lower Snake River dams (included in MO3),
and annual pool drawdowns on the mainstem of the Snake and Columbia Rivers to minimum
operating levels (included in MO4), might harm the interests of CSRIA’s members and failed to
include mitigation for those potential harms. CSRIA also alleges in its proposed amended cross
claim that the agencies failed to consider additional alternatives that would properly, or better,
address the needs of the region.
DISCUSSION
The Moving Defendants are facially challenging CSRIA’s standing. The Moving
Defendants argue that CSRIA lacks standing because CSRIA fails to allege a cognizable injury.
The Moving Defendants also argue that CSRIA fails to allege an injury that is redressable by any
order of the Court.
To have standing, a plaintiff must have “personal interest . . . at the commencement of the
litigation.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189
(2000). The required personal interest must satisfy three elements throughout the litigation:
(1) an injury in fact, i.e., an invasion of a legally protected interest that is concrete and preferred
alternative particularized, as well as actual or imminent; (2) a causal connection between the
injury-in-fact and the defendant’s challenged behavior; and (3) likelihood that the injury-in-fact
will be redressed by a favorable ruling. Id. at 180-81, 189; see also Spokeo, 136 S. Ct. at 1547
PAGE 4 – ORDER

Case 3:01-cv-00640-SI

Document 2394

Filed 08/12/21

Page 5 of 7

(reiterating that the “irreducible constitutional minimum” of standing consists of “an injury in
fact . . . fairly traceable to the challenged conduct of the defendant, and . . . likely to be redressed
by a favorable judicial decision”). An injury is “particularized” if it “affect[s] the plaintiff in a
personal and individual way.” Spokeo, 136 S. Ct. at 1548 (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 n.1 (1992)). An injury is “concrete” if it is “‘de facto’; that is it must
actually exist,” meaning that it is “‘real’ and not ‘abstract.’” Id. “‘Concrete’ is not, however,
necessarily synonymous with ‘tangible.’ Although tangible injuries are perhaps easier to
recognize, [the Supreme Court has] confirmed in many . . . previous cases that intangible injuries
can nevertheless be concrete.” Id. at 1549.
“To establish an injury-in-fact, a plaintiff challenging the violation of a procedural right
must demonstrate (1) that he has a procedural right that, if exercised, could have protected his
concrete interests, (2) that the procedures in question are designed to protect those concrete
interests, and (3) that the challenged action’s threat to the plaintiff’s concrete interests is
reasonably probable.” California v. Azar, 911 F.3d 558, 570 (9th Cir. 2018). “Deprivation of a
procedural right without some concrete interest that is affected by the deprivation is insufficient
to create Article III standing.” Id. (simplified) (quoting Summers v. Earth Island Inst., 555
U.S. 488, 496 (2009)); see also WildEarth Guardians v. Jewell, 738 F.3d 298, 305 (D.C.
Cir. 2013) (“A procedural injury claim therefore must be tethered to some concrete interest
adversely affected by the procedural deprivation . . . .”).
The imminence inquiry, however, is less demanding for procedural harms. Navajo Nation
v. Dep’t of the Interior, 876 F.3d 1144, 1161 (9th Cir. 2017). As the Ninth Circuit explained:
The challenged action need not immediately or directly cause the
harm as a first-order effect. That the potential injury would be the
result of a chain of events need not doom the standing claim. The
relevant inquiry is whether there is a reasonable probability that the

PAGE 5 – ORDER

Case 3:01-cv-00640-SI

Document 2394

Filed 08/12/21

Page 6 of 7

challenged procedural violation will harm the plaintiffs’ concrete
interests, not how many steps must occur before such harm occurs.
Notwithstanding this relaxed standard, injury in fact requires a
likelihood that the challenged action, if ultimately taken, would
threaten a plaintiff's interests. Where a plaintiff cannot explain in
any way how their interests may be affected by agency action, it
has not suffered an injury in fact. So, although a contingent chain
of events can create a reasonably probable threat to a plaintiff's
interests, a purely speculative sequence of occurrences will not
meet this standard.
Id.
In both CSRIA’s original and amended cross claim, CSRIA does not allege harm from
the Preferred Alternative chosen by the federal agencies in the FEIS. In the ROD, the agencies
selected a course of federal action, and CSRIA does not assert that the chosen federal action will
cause harm to CSRIA or its members. Indeed, CSRIA requests as a remedy that the Court leave
the FEIS chosen alternative and ROD in place and only remand the non-selected alternatives to
the agencies for further analysis. CSRIA alleges that “[b]ecause of the widespread public
rejection of the Preferred Alternative, and its likely rejection by this Court, unmitigated or
inadequately mitigated damage to the Irrigators and their members is likely.” ECF 2366 at 13
(Am. Cross Claim ¶ 16). CSRIA also alleges that “[t]he four dam removal alternative would, if
adopted, generate adverse effects on irrigators and their members.” Id. at 12 (Am. Cross Claim
¶ 10). CSRIA further alleges that a lack of alternatives “leaves the Region and the Court, in
substance, with only the Preferred Alternative and the four-dam breaching alternative.” Id. at 15
(Am. Cross Claim ¶ 24). CSRIA argues the alleged violations of NEPA likely will cause its
members harm if the Preferred alternative is not upheld after Plaintiffs’ challenge in Court.
CSRIA fails to allege a concrete interest affected or reasonably probable to be affected by
the alleged NEPA violations because these violations involve alternatives not selected by the
federal agencies. The cases cited by CSRIA involve challenges to the selected alternative in an
PAGE 6 – ORDER

Case 3:01-cv-00640-SI

Document 2394

Filed 08/12/21

Page 7 of 7

environmental impact statement and are inapposite. By challenging the unselected alternatives,
CSRIA cannot show how it or its members are harmed by the actions of the Corps and BOR.
Additionally, the alleged future injury is too speculative to support standing. The alleged
harm is not from the federal agencies’ planned actions, but rather from actions CSRIA is worried
the agencies may take if a series of future events occurs. Getting to the alleged harm, however,
requires a “purely speculative sequence of occurrences.” Navajo Nation, 876 F.3d at 1161. The
Court will have to find that the Corps and BOR violated NEPA in preparing the FEIS and issuing
the ROD, and then the Court will have to mandate or the agencies will have to choose to
implement the dam breaching alternative, with no further analysis to cure any NEPA violations
that would have been found by the Court. CSRIA provides no evidence, argument, or authority
that the agencies or the Court would proceed in this manner if the Court found that the Corps and
BOR violated NEPA. Nor have Plaintiffs requested this remedy in the Eighth Amended
Complaint. Plaintiffs have requested only that the Court vacate the FEIS and ROD, not that the
Court or the agencies “select” a different alternative within the FEIS as the new Preferred
Alternative. Because the Court finds that CSRIA has not sufficiently alleged injury, the Court
does not reach the Moving Defendants’ argument on redressability.
CONCLUSION
The Court GRANTS Intervenor CSRIA’s Motion to Amend Answer and Cross Claim
(ECF 2366). The Court also GRANTS the Federal Defendants’ Motion to Dismiss CSRIA’s
Cross Claim (ECF 2362), applying the motion against CSRIA’s Amended Cross Claim.
IT IS SO ORDERED.
DATED this 12th day of August, 2021.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
PAGE 7 – ORDER