Alliance for Wild Rockies v. Burman

• Decision Date: 30 October 2020
• Docket Number: CV 20-22-GF-KLD
• Citation: 499 F.Supp.3d 786
• Parties: ALLIANCE FOR the WILD ROCKIES, Plaintiff, v. Brenda BURMAN, Commissioner, U.S. Bureau of Reclamation; David Bernhardt, Secretary, U.S. Department of Interior, Defendants.
• Court: U.S. District Court — District of Montana

499 F.Supp.3d 786

ALLIANCE FOR the WILD ROCKIES, Plaintiff,

v.Brenda BURMAN, Commissioner, U.S. Bureau of Reclamation; David Bernhardt, Secretary, U.S. Department of Interior, Defendants.

CV 20-22-GF-KLD

United States District Court, D. Montana, Great Falls Division.

Signed October 30, 2020

Rebecca Kay Smith, Public Interest Defense Center, Timothy M. Bechtold, Bechtold Law Firm, Missoula, MT, for Plaintiff.

Devon Lea Flanagan, U.S. Department of Justice - E.N.R.D. General Litigation, Washington, DC, Coby Howell, Office of the U.S. Attorney, Portland, OR, for Defendants.

ORDER

Kathleen L. DeSoto, United States Magistrate Judge

Plaintiff Alliance for the Wild Rockies, Inc. ("Alliance"), brought this action under the Endangered Species Act ("ESA") challenging the Bureau of Reclamation's ("Reclamation") alleged ongoing, unpermitted take of bull trout through its operation of the Milk River Irrigation Project located east of Glacier National Park. Reclamation moved to dismiss Alliance's Complaint under Fed. R. Civ. P. 12(b)(1), arguing Alliance's claim was moot. (Doc. 7.) The Court denied the motion finding effective relief could be granted since the United States Fish and Wildlife Service ("USFWS") had not yet issued an Incidental Take Statement ("ITS") permitting Reclamation's take of bull trout. The USFWS has since issued an ITS. (Doc. 20-1.) Reclamation now moves to dismiss pursuant to Fed. R. Civ. P. 12(h)(3) because the issuance of the ITS has rendered Alliance's Complaint moot. (Doc. 19.) For the following reasons, Reclamation's motion is GRANTED.

I. Background

Alliance filed this action on March 25, 2020 challenging Reclamation's unpermitted incidental take of bull trout in violation of under Section 9 of the ESA. (Doc. 1.) Alliance alleges Reclamation's water control and delivery structures in the St. Mary River drainage, as part of the Milk River Irrigation Project, are negatively affecting the native fish population resulting in the mortality of bull trout, a threatened species. (Doc. 1 at ¶¶ 11-23.) The parties agree that Reclamation's operations are subject to the requirements of the ESA and that taking bull trout is a violation of the ESA.

At the time Alliance filed its Complaint, Reclamation did not have an ITS from the USFWS which would exempt it from violating the ESA. 16 U.S.C. § 1539(a)(1)(B). However, Reclamation was engaged in formal consultation with the USFWS regarding bull trout in the St. Mary Unit, and on September 4, 2020 the USFWS issued a Biological Opinion ("BiOp") and accompanying ITS for the St. Mary Unit. (Doc. 20-1.) It is undisputed that the BiOp and ITS have rendered Alliance's request for injunctive relief moot. (Doc. 22 at 7.) The parties disagree, however, as to whether declaratory relief remains available.

II. Legal Standard

Reclamation moves to dismiss pursuant to Fed. R. Civ. P. 12(h)(3). A motion to dismiss under Rule 12(h)(3) challenges the court's subject matter jurisdiction over the action. See Fed. R. Civ. P. 12(h)(3) ("If the Court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."). As the party asserting jurisdiction, the plaintiff bears the burden of proving its existence. Kingman Reef Atoll Investments, L.L.C. v. United States , 541 F.3d 1189, 1197 (9^th Cir. 2008). The court will presume jurisdiction is lacking until the plaintiff proves otherwise. Stock West, Inc. v. Confederated Tribes , 873 F.2d 1221, 1225 (9^th Cir. 1989).

In considering a 12(h)(3) motion challenging the facts supporting subject-matter jurisdiction, a court may consider extra-pleading materials submitted by the parties. Assoc. of American Medical Colleges v. United States , 217 F.3d 770, 778-79 (9^th Cir. 2000) ; see also McCarthy v. United States , 850 F.2d 558, 560 (9^th Cir. 1988) ("the district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction."). A federal court is one of limited jurisdiction; it must dismiss a case upon concluding it lacks jurisdiction. High Country Resources v. F.E.R.C. , 255 F.3d 741, 747 (9^th Cir. 2001).

III. Discussion

A. The ESA

Congress enacted the ESA to "provide a program for the conservation of ... endangered species and threatened species," and to "provide a means whereby the ecosystems upon which endangered species and threatened species may be conserved[.]" 16 U.S.C. § 1531(a)(3). The ESA implements its goal of recovering threatened and endangered species to the point where protective measures are no longer needed through Sections 7 and 9 of the Act. See Babbitt v. Sweet Home Chapter of Cmtys. For a Great Or. , 515 U.S. 687, 699, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995) (Congress passed the ESA "to halt and reverse the trend toward species extinction, whatever the cost.").

Section 9 of the ESA prohibits any person from "taking" an endangered species. 16 U.S.C. § 1538(a)(1)(B). The ESA defines "take" to include "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 USFWS has extended the ESA's "take" prohibition to certain threatened species, including bull trout. 50 C.F.R. § 17.31(a). The USFWS, however, may find the taking of a species to be "incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." 16 U.S.C. § 1539(a)(1)(B). In such a situation, the USFWS may exempt the "incidental take" from Section 9's take prohibition. The incidental take exemption is typically authorized through an incidental take permit during the Section 7 consultation process. 16 U.S.C. § 1536(b)(4).

Section 7 of the ESA requires federal agencies to ensure that their actions are "not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification" of a species’ critical habitat. 16 U.S.C. § 1536(a)(2). If an agency's action may affect a listed species or critical habitat, the agency must engage in consultation with the consulting agency, the USFWS in this case. 16 U.S.C. § 1536(b). Consultation begins with the preparation of a biological assessment and culminates in the USFWS’ issuance of a BiOp assessing whether the action will likely jeopardize the listed species or result in destruction or adverse modification of its critical habitat. 50 C.F.R. § 402.14(g) – (h).

If the USFWS concludes that the agency action will involve "the taking of an endangered or a threatened species incidental to the agency action [,]" it must provide an ITS. 16 U.S.C. § 1536(b)(4) (emphasis added). The ITS specifies the impact of the incidental taking on the species, specifies reasonable and prudent measures necessary or appropriate to minimize the impact, and sets forth the terms and conditions the federal agency must comply with. 16 U.S.C. § 1536(b)(4)(C). "As long as any takings comply with the terms and conditions of the [ITS], the action agency is exempt from penalties for such takings." Oregon Natural Resources Council v. Allen , 476 F.3d 1031, 1034 (9^th Cir. 2007).

B. Motion to Dismiss

Reclamation moves to dismiss Alliance's Complaint based on mootness. The USFWS issued a BiOp and ITS on September 4, 2020, exempting Reclamation from Section 9 liability so long as it complies with certain terms and conditions. (Doc. 20-1.) Reclamation therefore argues that Alliance's Section 9 claim is moot. Reclamation further asserts that the declaratory relief Alliance seeks is not available and would offer no effective or meaningful relief. Finally, Reclamation contends granting Alliance declaratory relief would serve as an improper advisory opinion.

Mootness is a jurisdictional issue requiring the Court to determine whether a case or controversy exists under Article III of the Constitution. Maldonado v. Lynch , 786 F.3d 1155, 1160 (9^th Cir. 2015). A case must present a live controversy to resist dismissal for mootness. Maldonado , 786 F.3d at 1160. "The party asserting mootness bears the burden of establishing that there is no effective relief that the court can provide." Forest Guardians v. Johanns , 450 F.3d 455, 461 (9^th Cir. 2006). The burden to establish mootness is heavy. "[A] case is not moot where any effective relief may be granted." Johanns , 450 F.3d at 461 (emphasis in original).

The Ninth Circuit has determined that "where, as here, both injunctive and declaratory relief are sought but the request for injunctive relief is rendered moot, the case is not moot if declaratory relief would nevertheless provide meaningful relief." Center for Biological Diversity v. Lohn , 511 F.3d 960, 964 (2007). The Ninth Circuit has applied this rule to ESA cases and has determined that under certain circumstances the availability of declaratory relief may save cases from mootness. See, e.g. Biodiversity Legal Found. v. Badgley , 309 F.3d 1166, 1173-75 (9^th Cir. 2002) (cessation of alleged wrongful conduct did not render declaratory relief moot although injunctive relief was unwarranted); But see, Lohn , 511 F.3d at 964 (declaratory relief would serve no purpose where the plaintiff's "ultimate objective" was met).

Contrary to Reclamation's argument that this Court may not provide declaratory relief in ESA cases, the Ninth Circuit's guidance on this issue clearly indicates that this Court may retain jurisdiction over this matter if it finds declaratory relief would provide Alliance meaningful relief. See e.g., Johanns , 450 F.3d at 462 (allowing ESA claim requesting declaratory relief to go forward); Badgley , 309 F.3d at 1174 (assuming jurisdiction over ESA claim seeking declaratory relief). However, where an alleged violation has been remedied by agency conduct, the agency's action moots a claim for declaratory relief if no effective relief can be granted. Defenders of Wildlife v. Jackson , 791 F. Supp. 2d 96, 109 (D.D.C. 2011).

In Defenders ,...