Alliance for the Wild Rockies, Inc. v. U.S. Army Corps of Engineers et al
Opinion and Order: This Court lacks jurisdiction over this matter because there is no live case or controversy. Therefore, the Court dismisses this case as moot. Signed on 2/22/2017 by Judge Marco A. Hernandez. (sss)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ALLIANCE FOR THE WILD ROCKIES,
OPINION & ORDER
UNITED STATES ARMY CORPS OF
ENGINEERS, UNITED STATES BUREAU
OF RECLAMATION, and BONNEVILLE
259 E. 5th Ave., Suite 200-D
Eugene, OR 97401
OPINION & ORDER - 1
Timothy M. Bechtold
Bechtold Law Firm, PLLC
P.O. Box 7051
Missoula, MT 59807
Akland Law Firm, PLLC
317 E. Spruce St.
Missoula, MT 59802
Attorneys for Plaintiff
Matthew A. Love
Van Ness Feldman LLP
719 Second Avenue, Suite 1150
Seattle, WA 98104
Attorneys for Intervenor-Defendants
Roza Irrigation District and
Kennewick Irrigation District
John C. Cruden
Seth M. Barsky
S. Jay Govindan
U.S. Department of Justice
Ben Franklin Station, P.O Box 7611
Washington, D.C. 20044
Attorneys for Defendants
HERNÁNDEZ, District Judge:
Plaintiff Alliance for the Wild Rockies, Inc. (“Alliance”) brings its case against the
United States Army Corps of Engineers (“Corps”), the United States Bureau of Reclamation
(“Reclamation”), and the Bonneville Power Administration (“BPA”) (collectively “Federal
Defendants”) for allegedly violating the Endangered Species Act (“ESA” or “Act”). 16 U.S.C.
§ 1531 et seq. Specifically, Plaintiff alleges that twenty-three of the dams that Federal
Defendants maintain and operate may affect critical habitat of the bull trout. Plaintiff asks the
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Court to order Federal Defendants to reinitiate and complete consultation with the United States
Fish and Wildlife Service (“Service”) to determine what affect, if any, the dams may have on the
bull trout critical habitat. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.16. Roza Irrigation District
and Kennewick Irrigation District intervened in this case as defendants.
Before the Court is Federal Defendants’ motion to dismiss Alliance’s Complaint pursuant
to Rule 12(b)(1) of the Federal Rules of Civil Procedure. The motion is granted.
Bull trout are native to waters of western North America and “range throughout the
Columbia River and Snake River basins, extending east to headwater streams in Montana and
Idaho, into Canada, and in the Klamath River basin of south-central Oregon.” 75 Fed. Reg.
63,898 (Oct. 18, 2010). Bull trout were once more widespread than they are today and have more
specific habitat requirements than other salmonids. Id. Most bull trout are migratory, while some
“complete their entire life cycle in tributary streams where they spawn and rear.” Id.
The Service first listed populations of bull trout as “threatened” throughout the region in
1998. 63 Fed. Reg. 31,648 (June 10, 1998). On September 26, 2005, the Service designated
“critical habitat” for several populations of bull trout, including some located in the Klamath and
Columbia Rivers. Mot. to Dismiss at 9, ECF 25; 75 Fed. Reg. 56, 212 (Sept. 26, 2005). The term
“critical habitat,” is a term of art that means “geographical area occupied by the species” that
contains those physical or biological features “essential to the conservation of the species” and
“which may require special management consideration or protection.” 16 U.S.C. § 1532(5)(A)(i).
Alliance and another environmental organization challenged the 2005 bull trout
designation on numerous grounds in this District and the court granted the Service’s request to
voluntarily remand the rule and propose a new rule by December 31, 2009. 75 Fed. Reg. 63,898–
99; Alliance for the Wild Rockies, Inc. v. Allen, No. 04-cv-1813-JO, 2009 WL 2015407 (D. Or.
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July 1, 2009). On October 18, 2010, the Service designated bull trout critical habitat in segments
of rivers across Oregon, Washington, Idaho, and Montana. 75 Fed. Reg. 63,898. The Service
attributed the decline of bull trout to “habitat degradation and fragmentation, blockage of
migratory corridors, poor water quality, past fisheries management practices, impoundments,
dams, water diversions, and the introduction of nonnative species.” Id.
Federal Defendants collectively operate and maintain all twenty-three of the challenged
dams across Oregon, Washington, Idaho, and Montana. Mot. to Dismiss at 6–7. The dams,
reservoirs, and related facilities primarily affect the Columbia and Willamette rivers. Id. They
range from massive hydro-electric power plants to much smaller earthfill structures. Id. at 1. The
dams are used for electricity, flood control, irrigation, water supply, commercial navigation,
recreation, and conservation. Id. at 1–2.
The Federal Columbia River Power System operates fourteen of the twenty-three dams at
issue in this case: Albeni Falls; Bonneville; Chief Joseph; Dworshak; Grand Coulee; Hungry
Horse; Ice Harbor; John Day; Libby; Little Goose; Lower Granite; Lower Monumental; McNary;
and The Dalles. See Mot. to Dismiss Ex. 1. Reclamation operates the Yakima Project which
includes the Roza Diversion Dam and the Chandler Dam. Mot. to Dismiss at 7. The Willamette
Basin Project is operated by the Corps and comprises thirteen dams throughout the Willamette
River basin. Id. at 7–8. The Complaint identifies nine Willamette Basin Project dams: Blue
River; Cottage Grove; Cougar; Dexter; Fall Creek; Fern Ridge; Green Peter; Hill Creek; and
Lookout Point. Compl. ¶¶ 22, 34, 39, ECF 1. The Complaint also identifies the Howard A.
Hanson dam operated by the Corps. Id. at ¶ 22.
On June 30, 2016, Plaintiff submitted its notice of intent to sue Federal Defendants under
the ESA. Mot. to Dismiss. Ex. 3. In its notice, Plaintiff alleged that Federal Defendants “have
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never re-initiated or completed consultation to determine whether their operations in and near
designated bull trout critical habitat will adversely affect designated bull trout critical habitat.”
Id. at 3. Plaintiff filed its Complaint in this Court on July 11, 2016, reasserting its claim that
Federal Defendants have failed to comply with the ESA’s procedural requirement to reinitiate
consultation after receiving new information pertaining to bull trout critical habitat from the
Service’s 2010 designation. Compl. ¶¶ 47–49. Since the filing of this lawsuit, Federal
Defendants have initiated or reinitiated consultation with the Service regarding all of the
challenged dams. Mot. to Dismiss Exs. 7–9; Fed. Defs’. Reply Ex. 1, ECF 34.
Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure a party may move to
dismiss for lack of subject-matter jurisdiction.
A Rule 12(b)(1) jurisdictional attack may be facial or factual. In a
facial attack, the challenger asserts that the allegations contained in
a complaint are insufficient on their face to invoke federal
jurisdiction. By contrast, in a factual attack, the challenger disputes
the truth of the allegations that, by themselves, would otherwise
invoke federal jurisdiction.
Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (internal citation omitted).
The Court must accept the factual allegations contained in the Complaint as true when
determining whether subject matter jurisdiction exists. Wolfe v. Strankman, 392 F.3d 358, 362
(9th Cir. 2004). However, when resolving a factual attack on jurisdiction, the court may review
extrinsic evidence without converting the motion to a motion for summary judgment and the
court “need not presume the truthfulness of the plaintiff’s allegations.” Safe Air for Everyone,
373 F.3d at 1039. Once the motion has been converted into a factual motion, the plaintiff “must
furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter
jurisdiction.” Id. (citation omitted).
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As a preliminary matter, Plaintiff concedes that four of the twenty-six dams identified in
its complaint are not on bull trout critical habitat and do not affect bull trout critical habitat. Pl.
Resp. at 1 n.1, ECF 29. Therefore, the Court dismisses Plaintiff’s claims as to Cottage Grove,
Fall Creek, Fern Ridge, and Green Peter. In their Motion to Dismiss, Federal Defendants argue
that Plaintiff’s claim is moot because the relevant agencies have already initiated or reinitiated
consultation with the Service for all of the challenged dams. Federal Defendants also argue that
Plaintiff has failed to demonstrate Article III standing. Finally, Federal Defendants argue that the
Court lacks jurisdiction over Plaintiff’s claims against BPA because suits challenging BPA’s
actions are subject to the exclusive jurisdiction of the Ninth Circuit Court of Appeals under the
Northwest Power Act. 16 U.S.C. § 839f(e)(5).
The Endangered Species Act
The ESA provides a means of conserving ecosystems upon which endangered and
threatened species may depend. 16 U.S.C. § 1531(b). To that end, the ESA sets forth a program
for conservation. Id. The Act requires that the Service determine whether any species is
endangered or threatened and designate critical habitat for those species. 16 U.S.C. § 1533(a)(1),
(3)(A)(i). Section 7 of the ESA mandates that each federal agency shall “in consultation with and
with the assistance of the Secretary, insure that any action authorized, funded, or carried out by
such agency . . . is not likely to jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification of habitat of such species.”
16 U.S.C. § 1536(a)(2). Federal agencies, sometimes referred to as “action agencies,” may be
required to engage in consultation with the Service. Id.
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Consultation may be informal or formal. Informal consultation is an optional process
whereby the Service may determine that the agency action is not likely to adversely affect a
listed species or critical habitat, at which point the Service issues a concurrence, terminates the
process, and no further action is necessary. 50 C.F.R. § 402.13(a). Alternatively, if the Service or
the action agency determines that the action is likely to adversely affect a listed species or critical
habitat, formal consultation is required. 50 C.F.R. § 402.14(a). A federal agency shall initiate
formal consultation by submitting a biological assessment. 50 C.F.R. § 402.14(c). The purpose
of a biological assessment is to “evaluate the potential effects of the action” on listed species and
critical habitat “and determine whether any species or habitat are likely to be adversely affected
by the action.” 50 C.F.R. § 402.12(a). At the end of the formal consultation process, the Service
produces a biological opinion. 16 U.S.C. § 1536(b)(4); 50 C.F.R. §§ 402.14(l)(1), (g)(4). Formal
consultation shall be reinitiated if new information reveals that the agency action may affect
listed species or critical habitat “in a manner or to an extent not previously considered.” 50
C.F.R. § 402.16(b). After the initiation of consultation, the federal agency “shall not make any
irreversible or irretrievable commitment of resources” that would prevent the agency from
implementing alternative measures that would not jeopardize listed species or adversely modify
critical habitat. 50 C.F.R. § 1536(d).
Federal Defendants argue that Plaintiff’s Section 7(a)(2) claims are moot because the
relevant action agencies have already initiated or reinitiated formal consultation by sending
biological assessments regarding bull trout critical habitat to the Service. Mot. to Dismiss at 19.
When the Motion to Dismiss was first filed, biological assessments had been submitted for nine
OPINION & ORDER - 7
of the challenged dams. Id. Today, biological assessments have been submitted and formal
consultation has been initiated or reinitiated for the remaining dams. Fed. Defs’. Reply Ex. 1.
Article III of the United States Constitution requires that there be a live “case” or
“controversy.” A federal court must decide mootness before it can assume jurisdiction. North
Carolina v. Rice, 404 U.S. 244, 246 (1971). “The starting point for analysis is the familiar
proposition that ‘federal courts are without power to decide questions that cannot affect the rights
of litigants in the case before them.’” DeFunis v. Odegaard, 416 U.S. 312, 316 (1974) (citing
Rice, 404 U.S. at 246). “[A] suit becomes moot, ‘when the issues presented are no longer “live”
or the parties lack a legally cognizable interest in the outcome.’” Chafin v. Chafin, 133 S. Ct.
1017, 1023 (2013) (citing Already, LLC v. Nice, Inc., 568 U.S. ___, 133 S. Ct. 721, 726 (2013)).
Federal Defendants’ reinitiation of formal consultation moots Plaintiff’s Section 7(a)(2)
claims. Plaintiff contends its Section 7(a)(2) claims are not moot until consultation is complete.
Pl. Resp. at 14–15. Plaintiff further argues that this Court can provide effective relief by
requiring the issuance of a biological opinion. Id. The Complaint requests that Federal
Defendants “reinitiate and complete ESA consultation on the 2010 bull trout critical habitat
designation.” Compl. ¶ 49. In other words, Plaintiff has alleged only a procedural violation of the
ESA and has not alleged that the challenged dams violate any substantive provision of the Act.
Comp. ¶¶ 46–49; see also Mot. to Dismiss Ex. 3 (Plaintiff’s notice of intent to sue Federal
Defendants alleges only a procedural violation of the ESA). Once more, Federal Defendants
have reinitiated consultation regarding bull trout critical habitat and provided the precise relief
sought by Plaintiff.
A court from this District previously held that where all of plaintiff’s claims allege ESA
violations for “failing to reinitiate and complete consultation,” those claims were prudentially
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mooted when the defendants presented evidence that the relevant agencies had reinitiated
consultation with regard to the plaintiff’s environmental concerns. Oregon Nat. Res. Council v.
Keys, No. Civ. 02-3080-CO, 2004 WL 1048168, at *10 (D. Or. May 7, 2004), report and
recommendation adopted, 2004 WL 1490320 (D. Or. June 29, 2004); see also Greenpeace
Foundation v. Mineta, 122 F. Supp. 2d 1123, 1128 (D. Haw. 2000) (holding that the action
agency’s reinitiation of formal consultation mooted plaintiff’s Section 7 claim, stating that “it
would serve no purpose to order [the agency] to do what it has already done”). Another trial
court reached a similar conclusion, holding that the agency’s “commencement of consultation is
sufficient to moot plaintiffs’ claim for failure to consult as required by section 7(a)(2) of the
ESA.” American Littoral Soc. v. U.S. E.P.A. Region, 199 F. Supp. 2d 217, 246 (D.N.J. 2002). In
American Litorral Society, the trial court reasoned that granting relief declaring that the agency
had failed to comply with Section 7 or issuing an injunction would be “purely academic” and
would serve no purpose where the agency had already initiated consultation. Id. (citing Sw. Ctr.
for Biological Diversity v. U.S. Forest Serv., 82 F. Supp. 2d 1070, 1079 (D. Ariz. 2000)).
Ninth Circuit case law has not provided a clear answer to whether reinitiation of
consultation, by itself, is sufficient to moot a Section 7(a)(2) claim. The Parties’ reliance on
Alliance for the Wild Rockies v. United States Department of Agriculture is misplaced. 772 F.3d
592 (9th Cir. 2014). In Alliance, the Parks Service reinitiated consultation by submitting a
second biological evaluation to the Service after receiving new information regarding the effects
that helicopter hazing may have on Yellowstone grizzly bears. Id. at 600–601. The Park Service
concluded that the hazing was not likely to adversely affect the grizzly and the Service issued a
concurrence. Id. The Ninth Circuit held:
In conducting a second consultation and Biological Evaluation on
the impact of the Management Plan on Yellowstone grizzly bears,
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and obtaining a second concurrence from the [Service], the federal
defendants completed the reinitiation of consultation required by
the ESA. Reinitiation of consultation is the precise relief sought by
Alliance. See 50 C.F.R. § 402.16(b) Accordingly, Alliance’s
section 7 claim is moot.
Id. at 602. Unlike the instant case, in Alliance, the Service issued a concurrence
completing consultation. Id. Thus, Alliance is not dispositive of the issue of whether reinitiation
itself is sufficient to moot a Section 7 claim. Moreover, Plaintiff’s reliance on Southern Utah
Wilderness Alliance v. Smith is misplaced for the same reason. 110 F.3d 724, 728 (10th Cir.
1997) (holding that plaintiff’s Section 7 claim was moot where the Service had already issued a
The other cases that Plaintiff relies on do not stand for the proposition that Section
7(a)(2) claims are not moot until consultation is complete. In Washington Toxics Coalition v.
Environmental Protection Agency, the district court found that the E.P.A.’s “mere pledge to
comply” with its proposed consultation schedule did not moot plaintiff’s Section 7 claim where
the EPA had not even initiated consultation. No. C01-132C, 2002 WL 34213031, at *9 (W.D.
Wash. July 2, 2002).
In Lane County Audobon Society v. Jamison, the plaintiff sought to protect spotted owl
critical habitat in western Oregon by to enjoining the Bureau of Land Management (“BLM”)
from selling certain timber. 958 F.2d 290, 292 (9th Cir. 1992). The plaintiff sought an injunction
pending the completion of consultation on BLM’s “Strategy” which provided for the sale of
timber and conservation of the Northern Spotted Owl. Id. The district court enjoined
implementation of the Strategy pending consultation but found that the timber sales were not
affected by its order and refused to enjoin the sales. Id. The Ninth Circuit reversed in part,
finding that the timber sale constituted agency action for ESA purposes and enjoined the sale
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pending completion of consultation. In sum, Jamison is inapposite to the present case because it
dealt with a substantive violation of the ESA—“irreversible or irretrievable commitment of
resources”—during the consultation period. Id. at 294;16 U.S.C. § 1536(d). Here, the Complaint
does not allege any parallel substantive violation of the ESA for which the Court could grant
relief. Further, Plaintiff did not include a substantive violation in its notice of intent to sue and
admits that it alleges only a procedural violation in the Complaint. Mot. to Dismiss. Ex. 3 at 3–4;
Pl. Resp. at 3, 6–8.
Plaintiff requests that it be given leave to amend its complaint to add the Service as a
Defendant to ensure that it and the Federal Defendants will “comply with their duties under the
ESA.” Pl. Resp. at 16. Plaintiff argues that when action agencies and the Service have initiated
but not yet completed consultation, a challenger could obtain a court order setting the timetable
for the submission of biological assessments and biological opinions. See Pl’s. Resp. at 1, 19.
Plaintiff provides no legal support for this position and the language of the statute explicitly
states that consultation shall be concluded within ninety days or “within such other period of
time as is mutually agreeable to the Secretary and the Federal agency.” 16 U.S.C. §
1536(b)(1)(A). Further, it is the Service, and not Federal Defendants, that issues the biological
opinion. 50 C.F.R. § 402.14(g)(4), (l)(1). “The question of mootness focuses upon whether we
can still grant relief between the parties.” Am. Civil Liberties Union of Nevada v. Lomax, 471
F.3d 1010, 1016 (9th Cir. 2006) (quoting Dream Palace v. County of Maricopa, 384 F.3d 990,
999–1000 (9th Cir. 2004)). The Service is not a defendant in this case and giving Plaintiff leave
to amend its complaint to add the Service would not cure the problem of mootness. Federal
Defendants have satisfied their procedural duty under the ESA by reinitiating consultation and
they have provided Plaintiff with the precise relief that it has sought. Compl. ¶ 48 (stating its
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claim under 50 C.F.R. § 402.16 which provides for the reinitiation of formal consultation).
Because Plaintiff’s claim does not satisfy Article III’s case or controversy requirement, the Court
dismisses it as moot. Accordingly, the Court does not reach the issue of whether Plaintiff has
Bonneville Power Administration
Federal Defendants move to dismiss Plaintiff’s claim against BPA on the ground that the
Ninth Circuit Court of Appeals has exclusive jurisdiction over such claims. The Northwest
Power Act provides that suits challenging BPA’s “final actions and decisions” or the
“implementation of such actions” shall be filed “in the United States court of appeals for the
region.” 16 U.S.C. § 839f(e)(5). Plaintiff concedes that this Court does not have jurisdiction of
its claims against BPA. The Court dismisses BPA as defendant from this lawsuit.
This Court lacks jurisdiction over this matter because there is no live case or controversy.
Therefore, the Court dismisses this case as moot.
day of ______________________, 2017.
MARCO A. HERNÁNDEZ
United States District Judge
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