WaterWatch of Or. v. Winchester Water Control Dist.

• Decision Date: 22 September 2021
• Docket Number: 3:20-cv-01927-IM
• Court: U.S. District Court — District of Oregon
• Parties: WATERWATCH OF OREGON, PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS, INSTITUTE FOR FISHERIES RESOURCES, and STEAMBOATERS, Plaintiffs, v. WINCHESTER WATER CONTROL DISTRICT, Defendant.

WATERWATCH OF OREGON, PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS, INSTITUTE FOR FISHERIES RESOURCES, and STEAMBOATERS, Plaintiffs, v. WINCHESTER WATER CONTROL DISTRICT, Defendant.

No. 3:20-cv-01927-IM

United States District Court, D. Oregon

September 22, 2021

OPINION AND ORDER

KARIN J. IMMERGUT, DISTRICT JUDGE.

This matter comes before the Court on Defendant's Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction. ECF 19. Defendant asserts that Plaintiffs' action should be dismissed because the Oregon Water Resources Department (“OWRD”) and Oregon Department of Fish and Wildlife (“ODFW”) have primary jurisdiction over the water rights, regulation of dams, and fish passage criteria at issue in the Complaint. In the alternative Defendant argues that Plaintiffs' cause of action under the Endangered Species Act (“ESA”) is time-barred. For the reasons set forth below, Defendants' Motion to Dismiss, ECF 19, is denied.^[1] The following facts are alleged in Plaintiffs' complaint and are accepted as true at this stage of the proceeding.

BACKGROUND

Winchester Dam was built on the North Umpqua River in 1890. ECF 1 at ¶ 23. In 1907, the dam was raised from four to sixteen feet, and in 1945, a fish ladder was added to the north side of the dam. Id. at ¶¶ 23, 26. Today, the 450-foot-long Winchester Dam completely spans the North Umpqua River, and Defendant Winchester Water Control District owns and operates the dam. Id. at ¶¶ 2 16, 23.

The North Umpqua River, including the stretch around Winchester Dam, is a critical habitat for Oregon Coast coho salmon (“Coast coho”). Id. at ¶¶ 19-20, 22. Coast coho are a threatened species under the ESA and have been since 1997. Id. at ¶ 17.

Winchester Dam is a passage impediment and hazard for migrating adult and juvenile Coast coho. Id. at ¶ 25. The dam's fish ladder does not meet the criteria for adequate fish passage under National Marine Fisheries Service (“NMFS”) and ODFW rules and guidelines. Id. at ¶¶ 29-30. The ladder's placement on the far north side of the dam near bedrock makes the ladder difficult for salmon to find, resulting in injury to salmon going over the top of the dam and falling onto the bedrock. Id. at ¶ 32-33. The dam experiences significant leakage through its structure, especially in the area of the dam immediately next to the fish ladder. Id. at ¶ 35. This leakage creates many false attraction flows that further delay and injure Coast coho trying to cross the dam. Id. at ¶¶ 31 34-35. The ODFW has noted that Winchester Dam hinders upstream passage for Coast coho and that the dam's fish ladder does not meet current requirements for jump heights water velocities, or attraction flows. Id. at ¶ 36.

In 2018, the ODFW documented a fish kill resulting from attempts to repair a large hole under Winchester Dam. Id. at ¶ 38. The NMFS informed the ODFW that harm to Coast coho could be assumed. Id. The Oregon Department of Environmental Quality (“DEQ”) determined that the attempted repairs caused chemical pollution killing fish, and the DEQ issued a civil penalty against Defendant. Id. In 2019, the ODFW identified Winchester Dam as its second highest priority among privately owned barriers statewide for enforcement actions based on the needs of native migratory fish, which include Coast coho. Id. at ¶ 42.

In short, Plaintiffs allege Winchester Dam is harming or killing Coast coho when they traverse the dam to migrate or spawn. Id. at ¶ 43. The harm occurs when the salmon are battered, impaled, or otherwise injured on parts of the dam, the fish ladder, and the bedrock right below the dam. Id. at ¶¶ 32-33, 43.

The ESA prohibits the “take” of an endangered species and defines “take” as “to harass, harm, pursue, [etc.] or to attempt to engage in any such conduct.”16 U.S.C. § 1532(19); see also ECF 1 at ¶ 46. The NMFS defines “harm” as “an act which actually kills or injures fish or wildlife, ” and harm includes “significant habitat modification or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavior patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering.” Id. at ¶ 47 (internal quotation marks omitted) (quoting 50 C.F.R. § 222.102). The NMFS has adopted a regulation under the ESA to prohibit the take of Coast coho, and this regulation applies to Defendant. Id. at ¶¶ 49-50; see also 50 C.F.R. § 223.203.

Plaintiffs, four organizations that work to protect salmon in Oregon, filed this citizen suit under the ESA against Defendant on November 6, 2020. ECF 1. Plaintiffs seek a declaration that Defendant has violated the “salmon 4(d) rule, ” 50 C.F.R. § 223.203, and the Endangered Species Act, 16 U.S.C. § 1538(a)(1)(G) and 1538(1)(B), by “failing to provide adequate fish passage at the Winchester Dam and/or by failing to remove the Winchester Dam.” ECF 1 at 15. Plaintiffs seek an injunction requiring Defendant to either remove the dam or construct adequate fish passage. Id.^[2]

On January 29, 2021, Defendant filed its Motion to Dismiss for Lack of Subject Matter Jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). ECF 19. Defendant argues that this case should be dismissed under the doctrine of primary jurisdiction or because the claims are time-barred by the applicable statute of limitations. Id. at 2. Plaintiffs responded to the motion on March 8, 2021, ECF 24, submitting multiple declarations in support, ECF 25-29, 32-34. On April 6, 2021, Defendant filed its reply to its motion, ECF 35, as well as a motion to strike one of Plaintiffs' declarations, from Christopher A. Frissell, Ph.D, ECF 36. Briefing on the motion to strike was completed on April 29, 2021. See ECF 37; ECF 38.

LEGAL STANDARDS

A motion to dismiss under FRCP 12(b)(1) “challenges the court's statutory or constitutional power to adjudicate the case before it.” 2A James W. Moore et al., Moore's Federal Practice, ¶ 12.07, at 12-49 (2d ed. 1994). Once the question of jurisdiction is raised, the burden of establishing subject matter jurisdiction rests on the party asserting such jurisdiction. Thomson v. Gaskill, 315 U.S. 442, 446 (1942). In reviewing such a motion, the court presumes lack of subject-matter jurisdiction until the plaintiff proves otherwise in response to the motion. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted); see also Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009).

A Rule 12(b)(1) motion may be either a facial or factual attack. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “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.” Id. In evaluating a facial jurisdictional challenge, the Court can only consider “allegations in the complaint” to resolve the motion. Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)).

DISCUSSION

Defendant brings its motion to dismiss under Rule 12(b)(1) for lack of subject-matter jurisdiction. ECF 19. Defendant also brings a motion to strike the Declaration of Christopher A. Frissell Ph.D. (“Declaration”), ECF 25, which Plaintiffs filed in support of their response in opposition to Defendant's motion to dismiss. ECF 36.

Because the motion to strike turns on the single issue of whether Defendant's jurisdictional attack is facial or factual, this Court addresses that motion first. The Court then considers Defendant's motion to dismiss.

A. Defendant Brings a Facial Jurisdictional Attack, and Accordingly Defendant's Motion to Strike is Granted.

The parties dispute whether Defendant's jurisdictional challenge is facial or factual and, so, dispute whether this Court may consider a declaration in deciding the jurisdictional issue. Defendant contends that it brings a facial challenge, which prevents this Court from considering the Declaration. ECF 36 at 3-4.^[3] Plaintiffs argue that Defendant brings a factual challenge, making the Declaration fair game. ECF 37 at 6-7.

Dr. Frissell is an expert in salmonid ecology and conservation and has spent more than thirty years researching aquatic ecology and conservation biology in and around Oregon. ECF 25 at ¶¶ 1-5. In the Declaration, Dr. Frissell opines on Winchester Dam's negative effects on salmon, including Coast coho. See id. at ¶¶ 11-16. This Court finds that Defendant brings a facial jurisdictional attack. Because this Court may not consider the Declaration in evaluating this motion, Defendant's motion to strike is granted.

Although the parties did not initially dispute that Defendant's jurisdictional challenge is facial, Plaintiffs now contend that it is factual. ECF 37 at 6. “[I]n a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Safe Air for Everyone, 373 F.3d at 1039. Defendant does not dispute the truth of any allegations; rather, Defendant cites exhibits to confirm various aspect of Plaintiff's complaint.^[4] Exhibit 101 and 102 confirm that “[a]s Plaintiffs allude to in their complaint, the District has such a claim registration statement on file with OWRD, for a pre-1909 water right, for recreational use of the water impoundment created by the dam.” ECF 19 at 5. Exhibit 103, confirms Plaintiffs' allegation that OWRD has not yet provided a final adjudication of Defendant's pre-1909 water right claim. ECF 19 at 5-6; ECF 1 at ¶ 24. Thus, this Court holds that De...