Forest Guardians v. U.S. Bureau of Reclamation
| Decision Date | 17 November 2006 |
| Docket Number | No. CIV 06-214 BB/KBM.,CIV 06-214 BB/KBM. |
| Citation | 462 F.Supp.2d 1177 |
| Parties | FOREST GUARDIANS, Plaintiff, v. UNITED STATES BUREAU OF RECLAMATION and United States Army Corp of Engineers, Federal, Defendants. |
| Court | U.S. District Court — District of New Mexico |
Steven Sugarman, for Plaintiff.
Sue Ellen Wooldridge, for Defendants.
THIS MATTER comes before the Court on Federal Defendants'1 May 25, 2006 motion to dismiss or, in the alternative, for a more definite statement (Doc. 8), as well as Plaintiffs August 10, 2006 motion to file a supplemental complaint (Doc. 16). Having reviewed the submissions of the parties and the relevant law, the Court finds that Federal Defendants' motion to dismiss should be GRANTED and Plaintiffs motion to file a supplemental complaint should be DENIED.
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal for "failure to state a claim upon which relief can be granted."2 Fed.R.Civ.P. 12(b)(6). In addressing a motion to dismiss filed pursuant to Rule 12(b)(6), this Court is required to accept as true all well-pleaded facts alleged in the complaint. See Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1266 (10th Cir.1989). The Court does not, however, accept conclusory allegations as true. E.F.W. v. St. Stephen's Indian High Sch., 264 F.3d 1297, 1306 (10th Cir.2001). The issue in reviewing the sufficiency of a complaint is not whether the plaintiff ultimately will prevail, but whether the plaintiff is entitled to offer evidence to support his or her claim. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). This Court will dismiss the complaint, or claims contained therein, only if it appears that the plaintiff can prove no set of facts in support of his or her claim that would entitle it to relief. Phelps, 886 F.2d at 1266.
Further, Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law. Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (). if, as a matter of law, it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations, a claim must be dismissed. Id.
In 1973, Congress enacted the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq., "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species and threatened species." Id. § 1531(b). The goal of the ESA is to protect endangered species by protecting the ecosystems around them. Palila v. Hawaii Dep't of Land and Natural Res., 852 F.2d 1106, 1108 (9th Cir.1988). It "is the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tennessee Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978).
The ESA's protection of endangered and threatened species and the conservation of their ecosystems begins with a "listing determination" by the Secretary of the Interior (the "Secretary"). Specifically, the Secretary determines whether species qualify for listing as endangered or threatened species in need of protection. See 16 U.S.C. § 1533(a)(1). The Secretary's listing determination also triggers protections for the habitat of the listed species: "to the maximum extent prudent and determinable [the Secretary] shall, concurrently with [the listing determination], designate any habitat of such species which is then considered to be critical habitat." Id § 1533(a)(3).
The ESA sets forth two major substantive protections for listed species. First, after a species has been listed as either endangered or threatened, Section 9 of the ESA prohibits any "person" within the jurisdiction of the United States from "taking" that species. 16 U.S.C. § 1538(a)(1). "The term `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 taking prohibition of Section 9 applies to all forms of federal, state, and local governments, as well as private persons and entities. See id. § 1532(13).
Second, Section 7(a)(1) states that all agencies "shall ... utilize their authorities in furtherance of the purposes of [the ESA] by carrying out programs for the conservation of endangered species and threatened species." 16 U.S.C. § 1536(a)(1). In short, this section directs federal agencies to undertake programs to conserve protected species.
To promote the ESA's purpose to avoid harm to both listed species and their critical habitats, Section 7 requires all federal agencies to consult with the Secretary to evaluate the consequences of proposed federal actions so that they neither jeopardize the existence of a listed species nor modify a designated critical habitat. This Section 7 consultation process is designed to ensure federal agencies comply with the ESA's substantive provisions. Specifically, under Section 7(a)(2), each federal agency must 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 designated critical habitat. 16 U.S.C. § 1536(a)(2). To achieve this objective, the ESA requires the action agency to consult with the U.S. Fish and Wildlife Service ("FWS") whenever a federal action "may affect" an endangered species or designated critical habitat. 50 C.F.R. § 402.14(a). Federal agencies often initiate the Section 7 consultation process by preparing a "biological assessment" ("BA") to evaluate the potential effects of a proposed action. Id. § 402.12(a).
If, after reviewing the BA, the FWS determines that a proposed federal action is "likely to adversely affect" a listed species, the action agency and FWS enter into "formal consultation." 50 C.F.R. § 402.14. "Formal consultation" procedures require that FWS prepare a biological opinion ("BiOp") concluding whether the proposed action is likely to jeopardize the continued existence of a listed species or result in destruction or adverse modification of critical habitat. Id. If the FWS concludes that the action is likely to jeopardize the continued existence of a listed species, the FWS must set forth reasonable and prudent alternatives ("RPAs") to the action, if any. 16 U.S.C. § 1536(o)(2). A BiOp must also set forth terms and conditions allowing a permitted level of "incidental take" of the listed species associated with the agency's action, thereby exempting such take from the prohibitions of Section 9. Id. § 1536(o)(2).
Finally, the ESA contains a citizen suit provision that grants a right of action against federal agencies that are alleged to be in violation of the ESA's requirements. This citizen suit provision states in relevant part, "[A]ny person may commence a civil suit on his own behalf (A) to enjoin any person, including the United States and any other governmental instrumentality or agency ... who is alleged to be in violation of [the ESA." 16 U.S.C. § 1540(g)(1). At least sixty days prior to filing suit under this provision, a party must provide the alleged offender and Secretary of the Interior with a "Notice of Intent" ("NOI") to sue. Id. § 1540(g)(2)(A).
Federal Defendants own and operate a series of four dams and three reservoirs on the portion of the Pecos River stretching from Santa Rosa, New Mexico to the New Mexico-Texas border. Compl. ¶ 2. Federal Defendants operate these dams and reservoirs for two purposes: 1) to deliver water for use by irrigators in the Carlsbad Irrigation District and 2) to store and deliver water that has been acquired by the New Mexico Interstate Stream Commission for purposes of meeting New Mexico's obligations to Texas under the Pecos River Compact. Compl. ¶¶ 24, 27. Federal Defendants deliver the water for both of these purposes by making "block releases" — releases of large volumes of water in a concentrated period of time. Id.
The portions of the Pecos River owned and operated by Federal Defendants contain the only remaining population of the Pecos Bluntnose Shiner (the "Minnow"), a species that the Secretary listed as "threatened" in 1987. Compl. ¶¶ 2-3. Plaintiff alleges that Federal Defendants operate the Pecos River dams and reservoirs in such a way that the flow of the Pecos River is characterized by an extremely irregular and unnatural hydrograph with short periods of very high flows that occur during block releases and alternating long periods of critically low flows and river drying ("intermittency"). Compl. ¶ 5. The block releases wash Minnow larvae and eggs into downstream reservoirs where they are not viable and cannot survive. Compl. ¶ 26. Further, the block releases allegedly alter the physical channel characteristics of the Pecos River and scour the river bottom of critical sediments, which renders the Pecos River unsuitable for the survival of the Minnow. Id. The long dry periods between block releases — intermittency — which have become more significant and of longer duration in recent years, kill some of the remaining populations of the Minnow and individuals. Compl. ¶ 30.
The FWS has determined that both the block releases and intermittency "are actions that adversely affect the [Minnow] and its critical habitat." Compl. ¶ 5. Therefore, Federal Defendants have been required to complete Section 7 consultations with the FWS in order to continue their Pecos River operations. See Compl. ¶¶ 33-52. In December 2005, Federal Defendants submitted a BA to the FWS to initiate Section 7...
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