Warren v. United States et al

Filing 37

Opinion and Order. The Court finds for the reasons detailed in this opinion that Plaintiff lacks Article III standing. Irrigation District's Motion 12 to dismiss and Federal Defendants' motion 25 to dismiss are granted. Case is ordered dismissed. Signed March 20,2017. Ordered by Judge Michael J. McShane. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

ALETA WARREN,
Plaintiff,

Civ. No. 6:16-cv-01788-MC
OPINION AND ORDER

V.

UNITED STATES BUREAU OF
RECLAMATION, an agency of the federal
government within the Department of the
Interior, CENTRAL OREGON
IRRIGATION DISTRICT, an Oregon
municipal corporation, ESTEYAN LOPEZ,
in his official capacity as the Commissioner
of the Bureau of Reclamation, DAWN
WIEDMEIER, in her official capacity as
Columbia-Cascades Area Manager for the
Bureau of Reclamation, and CRAIG
HORRELL, in his official capacity as the
District Manager of Central Oregon Irrigation
District,
Defendants.

MCSHANE, Judge:

Defendants Central Oregon Irrigation District and Craig Horrell ("Irrigation
move to dismiss Plaintiffs First Amended Complaint ("FAC"), ECF No. 4, pursuant to Rule
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12(b)(1 ), claiming lack of subject-matter jurisdiction. Defendants argue that Plaintiff lacks
standing and that her claims are not ripe for judicial review. 1 Def. 's Mot. Br. 6, ECF No. 12.
The Plaintiff, Ms. Aleta Warren, brings this action seeking to enjoin two piping projects
the I-lateral Project and the PBC Piping Project.2 These projects involve the piping of open
irrigation canals in and around Deschutes County, Oregon. Plaintiff seeks relief in the form of
declaratory judgment that defendants have violated the National Environmental Policy Act
("NEPA") and the National Historic Preservation Act ("NHPA") in conjunction with the two
projects. Plaintiff also seek a declaratory judgment that a 2014 Memorandum of Agreement
entered into by the Central Oregon Irrigation District, the U.S. Bureau of Reclamation, and the
Oregon State Historic Preservation Officer, is invalid and does not operate to mitigate the
destruction of historic canals with regard to future piping projects. FAC, 30-31, ECF No. 4.
Because the Court finds for the reasons detailed below that Plaintiff lacks Article III
standing, Irrigation District's Motion to dismiss (ECF No. 12) and Federal Defendant's Motio
to dismiss (ECF No. 25) are GRANTED.

FACTUAL BACKGROUND
Irrigation District is an Oregon municipal corporation operating an irrigation system th t
consists of two main canals, Pilot Butte Canal and Central Oregon Canal. Horrell Deel.

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2, E F

No. 13. The Pilot Butte Canal runs north through Bend, Redmond and Terrebonne. The Centr 1
Oregon Canal runs east through Bend, Alfalfa and Powell Butte. Id.

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2. The two main canals

divert water from the Deschutes River and feed it into hundreds of miles of smaller lateral can ls

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Three other defendants, the United States Bureau of Reclamation, Bureau of Reclamation Commissioner Estev n
L6pez, and Columbia-Cascades Area Manager Dawn Wiedmeier (collectively referred to as "Federal Defendant ")
join in the arguments raised by Irrigation District while also moving to dismiss on related, but minutely distinct
rationales. ECF No. 25.
2
The PBC Piping Project is also known as Juniper Ridge Phase 2. This opinion will refer to the project as the P C
Piping Project.

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in order to provide water for about 45,000 acres within an 180,000 acres area in Central Orego
Horrell Reply Deel. iil 1, ECF No. 20.
I. I-Lateral Project

Beginning in October 2012, defendant and the North Unit Irrigation District commence
was it called the "I-Lateral Project," which piped 5,000 feet of the I-Lateral ditch off the Centr 1
Oregon Canal in the vicinity of Alfalfa, Oregon. Horrell Deel. ii 11, ECF No. 13; FAC 4 & 54.
This project was completed in June 2013. Horrell Deel. ii 11, ECF No. 13. The project was
funded in part by a WaterSMART grant by the U.S. Bureau ofReclarnation. 3
II. PBC Piping Project

In October 2010 Irrigation District completed the Juniper Project which consisted of
piping approximately three miles of the Pilot Butte Canal north of Bend and construction of a
small hydroelectric plant. Horrell Deel. ii 11, ECF No. 13. After the completion of this project,
Irrigation District considered conducting another project, phase 2 to the Juniper Project. It is
Juniper Project - Phase 2 that is known as the PBC Piping Project that Plaintiff seeks to enjoin
FAC ii 4, ECF No. 4. The proposed PBC Piping Project would have added another mile of
piping to the Pilot Butte Canal. Horrell Deel. ii 6, ECF No. 13. Funding for this potential proje t
included a loan from the Oregon Department of Environmental Quality, a grant from Energy
Trust of Oregon, and a WaterSMART grant from the United States Bureau of Reclamation
("Bureau of Reclamation"). Id.
Irrigation District, in support of its Motion to dismiss, submitted an initial declaration
a second reply declaration from its manager, Craig Horrell. ECF No. 13 & 20. Mr. Horrell
declares the PBC Piping Project had been cancelled before the filing of plaintiffs complaint
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The purpose of piping open canals is to conserve water that would otherwise be lost due to evaporation and
leakages. The I-Lateral Project conserves approximately 1,300 acre-feet of water. The PBC Piping Project woul
have conserved approximately 2,550 acre-feet of water from the Deschutes River.

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that no federal funds have been spent on the project. Horrell Deel. ii 8, ECF No. 13. Mr. Horrel
declares that Irrigation District "neither received nor spent a single dollar from a state or federa
agency to support any aspect of the Juniper Phase 2 project." Id.
Irrigation District applied for a WaterSMART grant on January 2, 2013 and the Bureau
of Reclamation approved funding. Liday Deel. Ex. 2, 53-314, ECF No. 16. The funding appro al
did not immediately release funds, but acted a promise to release funds in the future once certa n
conditions were fulfilled. Horrell Reply Deel.

iJ 9, ECF No. 20. Because the project was

eventually cancelled, the pre-conditions were never met, and the federal grant money was nev r
released or transferred to Irrigation District. Id. Mr. Horrell was hired as the Irrigation District
manager in June 2014. At that time Mr. Horrell placed the PBC Piping project on hold in orde to
conduct a system-wide review of the canal's delivery system. Horrell Deel.

iJ 7, ECF No.

13;

Horrell Reply Deel. iii! 3-4, ECF No. 20. Mr. Horrell, as district manager, decided to "entirely
abandon" the PBC Piping Project in early 2016. Horrell Deel. iJ 7, ECF No. 13; Horrell Reply
Deel. iJ 5 ECF No. 20. On July 12, 2016, the Board of Directors for Irrigation District ratified he
decision to cancel the project by resolution. Horrell Reply Deel.

iJ 10, Ex's. 3 &

4, ECF No. 2

The original complaint in this lawsuit was filed September 9, 2016. ECF No. 1.
On August 8, 2016, Irrigation District applied to the Bureau of Reclamation to re-alloc te
the WaterSMART grant originally approved for the PBC Piping Project to a different project ot
at issue in this case. Horrell Deel. iJ 8, Ex.'s 1 & 2, ECF No. 13. The application to re-allocate
the funds explains the PBC Piping Project has been cancelled and seeks to transfer the funds t a
different project rather than forfeit. Id. As of at least August 2016, the PBC Piping Project ha
been cancelled and there are no plans in existence to conduct the project in the future. Horrell
Deel.

iJ 9, ECF No.

13; Horrell Reply Deel.

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iJ 11, ECF No. 20.

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III. WaterSMART grant
The allegations of a violation of NEPA and NHPA are dependent on the existence of
federal funding because only projects receiving federal funding are subject to the requirements f
the two acts. FAC, ,;,; 56, 127, 132, ECF No. 4. WaterSMART grants are provided for under Se .
9504 of the 2009 SECURE Water Act. 4 The Secretary of the Interior is authorized to provide
grants to any eligible applicant for the purpose of providing funds to assist in planning,
designing, or constructing an improvement to conserve water and/or to increase water-use
efficiency, as well as half-a-dozen other purposes designed to enhance water management or
benefit fish or wildlife species determined to be in declines. 42 U.S.C. § 10364(a)(l).
For the I-Lateral Project, the North Unit Irrigation District applied to the Bureau of
Reclamation for a WaterSMART grant in January 2012 which was approved. Fed. Def.'s Mot. 67, Ex. 1, ECF No. 25-1. North Unit Irrigation District in return helped fund the installation oft e
piping of a roughly mile-long section oflrrigation District's I-Lateral ditch. The piping
conserved approximately 1,300 acre-feet of water from evaporation and seepage which provid d
the basis for transferring that amount of water rights from Irrigation District to North Unit
Irrigation District. The same amount was then transferred by North Unit Irrigation District for
permanent instream use in Crooked River.
The Bureau of Reclamation determined upon evaluation that the project fit within a
Categorical Exclusion and did not need to undergo a NEPA-required environmental assessme t.
The section of I-Lateral canal to be piped was determined however to be historic property,
eligible to the National Register of Historic Places and subject to the National Historic
Preservation Act (NHPA). Id, Ex. 2. The Advisory Council of Historical Places was invited t

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SECURE Water Act was passed as part of the larger Omnibus Public Land Management Act of2009, Pub. L. 1111, Title IX, Subtitle F, §§ 9501-10 (Mar. 30, 2009).

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participate in the consultation process to resolve adverse effects, but declined. The Bureau of
Reclamation entered into a Memorandum of Agreement among itself, the Oregon State Histori
Preservation Office, and Irrigation District to summarize actions to be taken to mitigate the
adverse effect to the historical integrity of the I-Lateral canal. Fed. Def.'s Mot. 7, Ex. 3, ECF N
25-3.
With respect to the PBC Piping Project, Irrigation District began the application proces
for a WaterSMART grant in January 2013. Fed. Def.'s Mot. 8, Ex. 5, ECF No. 25-5. The Bure u
of Reclamation determined the proposed project fit with a NEPA Categorical Exclusion. The
Bureau entered into a revised 2014 Memorandum of Agreement between itself, Irrigation
District and the State Historic Preservation Office to provide mitigation pursuant to NHP A.
Because the PBC Piping Project was cancelled, the WaterSMART grant was re-allocated to
another project. Irrigation District has not received or spent funding from a state or federal
agency for the PBC Piping Project. Horrell

Deel.~

8, ECF No. 13.

STANDARD OF REVIEW
A. Standing
This Court must dismiss a claim if it lacks subject matter jurisdiction. Fed. R. Civ. P.
12(b)(1 ). The party invoking federal jurisdiction bears the burden of establishing that subject
matter jurisdiction exists. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). First, the
plaintiff must prove that he has suffered an injury in fact, which is a concrete and particulariz d
invasion of a legally protected interest. Id. at 560. This injury must be actual or imminent, not
conjectural or hypothetical. Id. Second, there must be a causal connection, meaning the injury
must be fairly traceable to the conduct cited in the Complaint. Id. And third, there must be
redressability, or a likelihood that a favorable decision will redress the injury. Id. at 561.

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In deciding a Rule l 2(b)( 1) motion, the court may consider materials beyond the
pleadings when a defendant makes a factual challenge to subject matter jurisdiction. Wolfe v.
Strankman, 392 F.3d 358, 362 (9th Cir. 2004). Evidence that goes to the court's subject matter
jurisdiction may be submitted and considered when deciding a Rule 12(b)(l) motion. See Gree
v. United States, 630 F.3d 1245, 1248 n.3 (9th Cir. 2011) (on a Rule 12(b)(l) motion, "proof o
jurisdictional facts may be supplied by affidavit, declaration, or any other evidence properly
before the court, in addition to the pleadings challenged by the motion.").
B. Ripeness

Ripeness, like standing, originates as part of the Article Ill's case or controversy
requirement. Oliver v. Delta Fin. Liquidating Trust, No. 6:12-cv-00869-AA, 2012 WL 3704954,
at *4 (D. Or. Aug. 27, 2012), citing Western oil & Gas Ass'n v. Sonoma Cnty., 905 F.2d 1287,
1290 (9th Cir. 1990). A court cannot oversee matters which are premature for review. Id. "A
dispute is ripe in the constitutional sense if it 'present[ s] concrete legal issues, present in actua
cases, not abstractions."' Montana Envtl. Info. Ctr. v. Stone-Manning, 766 F.3d 1184, 1188,
quoting Colwell v. HHS, 558 F.3d 1112, 1123 (9th Cir. 2009). Where an injury has not yet
occurred, it must be at least imminent, that is the threatened injury is 'certainly impending'; th re
is a "substantial risk" that harm will occur. Id. at 1189. (internal citations omitted). Where a
motion raises a factual challenge to a federal court's subject-matter jurisdiction, the plaintiff h s
the burden to establish ripeness through the presentation of affidavits or other evidence." Col
v. Dep't of Health & Human Servs., 558 F.3d 1112, 1121 (9th Cir. 2009).
DISCUSSION
I. I-Lateral Project

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The injury alleged by Ms. Warren is to her recreational, aesthetic, economic, and cultur 1
interests in the historic canals on and near her property. FAC iii! 1, 7, 130, 136. The complaint
looks prospectively alleging that if the I-Lateral project is allowed to be carried out the plaintif

"will suffer immediate and irreparable injury." Id. (emphasis added). I find Plaintiff has not
carried her burden of establishing that (1) an injury in fact has occurred or is imminent, (2) the
existence of a causal connection, or (3) the likelihood that a favorable decision will or could
redress the alleged injury.
The I-Lateral Project was initiated in October 2012 and completed in June 2013.
Plaintiffs response to the Motion acknowledges she was not aware the project had already bee
initiated as of 2012 or completed as of June 2013. Pl.'s Resp. 11, ECF No. 14. I do find there i
evidence Ms. Warren enjoys visiting "the Central Oregon Canal and its laterals" generally. 1st
Warren Deel. iii! 7-8; ECF No. 15. Article III standing requires more though. An injury in fact
must be concrete and particularized. Lujan, supra, 504 U.S. at 560. In the case of Summers v.
Earth Island Institute, plaintiffs alleged to have suffered injury from past development on Fore t
Service Land. 555 U.S. 488, 495 (2009). One of the plaintiffs, Mr. Bensman, offered an affida it
asserting that he had visited many national forests and planned to visit several unnamed nation 1
forests in the future. Id. The court observed that the national forests occupy more than 190
million acres, an area larger than the state of Texas. Id. While there is a possibility that Mr.
Bensman may have come across a parcel of the national forests affected by a specific
development project, that possibility was too tenuous to establish the kind of concrete,
particularized injury in fact required for Article III standing. Id. at 496.
While the Central Oregon Canal and its laterals occupy substantially less geographical
space than our national forests, the two main canals and their lateral due still consist of hundre s

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of miles of waterways encompassing tens of thousands of acres through Central Oregon. Horrel
Reply Deel. 4i( 11, ECF No. 20. The I-Lateral Project piped a 5,000 foot section of a lateral ditch
located more than 15 miles from plaintiffs property. The site is far removed from the main can 1
is mostly in a gated "No Trespassing" area that crosses private cattle ranching property and is
generally inaccessible to the public. Id. The western seven-hundred feet of the piped canal does
run along the north border of Oregon Badlands Wilderness, BLM land open to public hikers.
2nd Warren Deel. 4i(4i( 7-9; ECF No. 28. This tail end of the piped canal sits approximately 0.7
miles from Reynold's Pond Trailhead. Id.
Defendants contend there no evidence that Ms. Warren has ever visited the specific site
of the I-Lateral Project before or after it was piped, and Ms. Warren for her part has not directl
refuted their contention. Ms. Warren declares to "have visited this section of the I-Lateral canal
on several occasions" and to "have walked along this section of canal to take photographs,
document the historic features, and simply enjoy the scenery." 2nd Warren Deel. 4i( 3, ECF No.
28. In order to reconcile Ms. Warren's declaration that she had visited this section on several
occasions with her other declarations that she did not know the I-Lateral piping project had
already been completed more than three years ago (2nd Warren Deel. 4i( 5, ECF No. 28), I find
that while Ms. Warren has enjoyed and may continue to enjoy visiting the Oregon Badlands
Wilderness and its surrounding canals she has not visited the specific section of canal that has
been piped by the I-Lateral project. Geographical proximity becomes more important for
establishing Article III standing when the particular type of harm alleged is visual enjoyment.

See, Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990) (a plaintiff claiming inju y
from environmental damage must use the area affected by the challenged activity and not an a a
roughly "in the vicinity" of it). The type of harm alleged is to Ms. Warren's ability to

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photograph, document historic features, and to simply enjoy the scenery. There is no allegatio
that Ms. Warren had previously enjoyed the 5,000 feet of canal that has been piped by the!Lateral project and there is no allegation that Ms. Warren had plans to visit the 5,000 feet of
canal that has been piped. The complaint only alleges enjoyment of the canals in general.
Because this fails to establish Article III standing, the allegations as against the I-Lateral Proje t
are dismissed.
II. PBC Piping Project

Article III standing requires a live case or controversy that is not premature for review.
Oliver, supra, 2012 WL 3704954. As detailed in the factual background above, Defendant
Irrigation District has submitted substantial and germane evidence that the PBC Piping Projec
was cancelled before the filing of the initial complaint and that there is no plan to pipe that
portion of the Pilot Butte Canal. Federal Defendants argue equally that no federal funds have
been released for the now cancelled project. Instead the WaterSMART grant has been realloca ed
to a different project not part of this litigation.
Because no presumption of truthfulness attaches to plaintiffs allegation, plaintiff cann t
rely solely on their complaint, but must put forward contradictory evidence showing either act al
or imminent harm such as the existence of a planned project. Kingman ReefAtoll Investments,
LLC v. United States, 541F.3d1189, 1195 (9th Cir. 2008) (quoting Roberts v. Carrothers, 81
F.2d 1173, 1177 (9th Cir. 1987) ("no presumptive truthfulness attaches to plaintiffs allegatio s.)
Plaintiff for her part has responded to the motions to dismiss with numerous documents. I fin
that the documents submitted by plaintiff fail to controvert the evidence showing the PBC Pip ng
Project was cancelled before the filing of the complaint. The PBC Piping Project does not

IO-OPINION AND ORDER

present a case and controversy. No injury has occurred, nor is one imminent or threatened. The
allegations as against the PBC Piping Project are dismissed.
Although there are no plans to do so, if sometime in the future defendants initiate a new
project at the PBC Piping site and fail to follow the law's requirements, then there will be a cas
and controversy to adjudicate. Unless and until such action occurs though, courts are precluded
under the ripeness doctrine from prematurely adjudicating administrative action. See, Neighbor

of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1067 (9th Cir. 2002).
III Redressability
I address in short the issue of redressability as it applies to both projects. The relief
sought is an injunction enjoining the two projects from moving forward, declaratory judgment
that defendants violated NEPA and NHP A, declaratory judgment that a 2014 Memorandum of
Agreement is invalid and does not operate to mitigate the destruction of historic canals for futur
piping projects, and finally "further relief ... as may be deemed by this Court to be just, proper,
and equitable." FAC pp. 30-31, ECF No. 4. The straight-forward conclusion is that a court
cannot enjoin a completed project and a court cannot enjoin a project that is cancelled and not i
existence. An injunction would have no practical effect to changing the current situation of the
parties. There is also a failure to demonstrate that the declaratory judgments sought will address
the injury suffered. The 2014 Memorandum of Agreement was entered into after the completio
of the I-Lateral Project and to declare it invalid would not redress any alleged harm suffered by
Ms. Warren from the I-Lateral Project. As to the PBC Piping Project, because it is cancelled an
declaratory judgment on whether there was a violation of NEPA or NHP A or the validity of the
2014 MOA would have no practical effect on whether the PBC Piping Project would move
forward or not. Any relief to be granted would not change the cancelled status of the project.

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Plaintiffs final request is for "further relief ... as may be deemed by this Court to be
just, proper, and equitable." Under the doctrine of mootness a court may construe broadly the
relief requested in order to avoid an inequitable situation where a defendant seeks to avoid
litigation by "killing" the live controversy upon which the suit was filed or where the project at
issue is completed during the course of litigation. Headwaters, Inc. v. Bureau of Land Mgmt.,
Medford Dist., 893 F.2d 1012, 1015-1016 (9th Cir. 1989). This would be the case if defendants

had cancelled the PBC Piping project after the complaint had been filed in order to avoid
litigation, only to resurrect the project once the complaint had been dismissed. Mootness is not t
issue here though. The motions to dismiss here tum on standing and ripeness. Because the
alleged injury is not ripe for review, I find no form of redressability is available or proper.
Because there is no effective relief for plaintiffs alleged injury which can be granted the
complaint is dismissed.
CONCLUSION
The Court finds for the reasons detailed above Plaintiff lacks Article III standing.
Irrigation District's Motion to dismiss (ECF No. 12) and Federal Defendant's Motion to dismis
(ECF No. 25) are GRANTED. Case is ordered dismissed.
IT IS SO ORDERED.
Dated this 20th day of March, 2017.

\
Michael McShane
United States District Judge

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