Wild Fish Conservancy v. Salazar

• Decision Date: 03 February 2010
• Docket Number: No. CV-09-0206-LRS.,CV-09-0206-LRS.
• Citation: 688 F. Supp.2d 1225
• Parties: WILD FISH CONSERVANCY; Harriet S. Bullitt, Plaintiffs, v. Kenneth L. SALAZAR, in his official capacity as the Secretary of the United States Department of the Interior; United States Department of the Interior; Sam D. Hamilton, in his official capacity as the Director of the United States Fish and Wildlife Service; United States Fish and Wildlife Service; Julie Collins, in her official capacity as the Leavenworth National Fish Hatchery Complex Manager; Michael L. Connor, in his official capacity as the Commissioner of the Bureau of Reclamation; and the United States Bureau of Reclamation, Defendants.
• Court: U.S. District Court — District of Washington

688 F.Supp.2d 1225

WILD FISH CONSERVANCY; Harriet S. Bullitt, Plaintiffs, v. Kenneth L. SALAZAR, in his official capacity as the Secretary of the United States Department of the Interior; United States Department of the Interior; Sam D. Hamilton, in his official capacity as the Director of the United States Fish and Wildlife Service; United States Fish and Wildlife Service; Julie Collins, in her official capacity as the Leavenworth National Fish Hatchery Complex Manager; Michael L. Connor, in his official capacity as the Commissioner of the Bureau of Reclamation; and the United States Bureau of Reclamation, Defendants.

No. CV-09-0206-LRS.

United States District Court, E.D. Washington.

February 3, 2010.

Brian Alan Knutsen, Bridget A. Baker-White, Richard Adam Smith, Smith & Lowney, PLLC, Seattle, WA, for Plaintiff's.

Charles R. Shockey, U.S. Department of Justice, Sacramento, CA, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

LONNY R. SUKO, Chief Judge.

A hearing on the above matter Knutsen participated on behalf of ("WFC") and Harriet S. Bullitt participated on behalf of the Defendants United States Fish and Wildlife Service ("FWS"), United States Bureau of Reclamation ("BOR"), United States Department of the Interior, Julie Collins, Michael L. Connor, Rowan W. Gould, and Kenneth L. Salazar ("defendants"). The Court heard oral argument on the defendants' Motion To Dismiss (Ct. Rec. 9). Defendants moved to dismiss all counts of plaintiffs' complaint pursuant to Fed.R.Civ.P. Rule 12, for lack of subject matter jurisdiction. Defendants further assert the court should dismiss the complaint because the plaintiffs failed to plead any claim on which relief may be granted. Plaintiffs oppose defendants' motion and request the court to deny defendants' motion and find subject matter jurisdiction so that the merits of the case can be determined during the course of this lawsuit.

I. INTRODUCTION

In this case, the plaintiffs challenge the operation of the Leavenworth National Fish Hatchery ("Hatchery"), located on Icicle Creek. Specifically, WFC alleges that the U.S. Fish and Wildlife Service ("FWS") and other named defendants are in violation of the State Water Code ("state water code") pursuant to Surface Water Right Certificate Nos. 1823, 1824, and 1825 issued by the Washington Department of Ecology (Ecology) with priority dates back to 1942 and 1984. Complaint, ¶¶ 79-81. Plaintiffs claim these alleged state law violations necessarily constitute violations of "federal reclamation law," including the Act of June 17, 1902 (Reclamation Act of 1902), ch. 1093, 32 Stat. 388, 43 U.S.C. § 391 et seq., the Reclamation Project Act of 1939, 53 Stat. 1187, 43 U.S.C. § 485 et seq., and the Columbia Basin Project Act, 16 U.S.C. §§ 835-835m. Complaint, ¶¶ 20, 82.

They also allege that the Hatchery, "by failing to maintain fishways on the Hatchery's structures," failed to comply with Washington's Fishway Law ("state fishway law"), RCW 77.57.030(2)(a). Complaint, ¶¶ 86-88. Finally, they submit that the violations of state law constitute a failure to comply with federal reclamation law, contrary to the Administrative Procedure Act (APA), 5 U.S.C. §§ 706(1), (2). Complaint, ¶¶ 83-84, 90-91.

II. FACTUAL BACKGROUND

The Parties

Plaintiff WFC, previously known as Washington Trout, is a non-profit, 501(c)(3) organization with its principal place of business in Duvall, Washington. See Complaint for Declaratory and Injunctive Relief, Ct. Rec. 1. WFC is dedicated to the preservation and recovery of Washington's native fish species and the ecosystems upon which those species depend. WFC brings this action on behalf of itself and its approximately 2,400 members.

WFC actively informs the public on matters affecting water quality, fish, and fish habitat in the State of Washington through publications, commentary to the press, and sponsorship of educational programs. WFC also conducts field research on wild-fish populations and has designed and implemented habitat restoration projects. To achieve its goals, WFC has lobbied, litigated, and publicly commented on federal and state actions that affect state waters¹. Ct. Rec. 1.

Plaintiff Harriet S. Bullitt is fee owner or part owner of approximately 350 acres of property adjacent to the Hatchery, containing approximately 2 miles of riverbank, including all of the riverbank on the east side of Icicle Creek and some of the riverbank on the Hatchery's side. Ct. Rec. 1, ¶ 7. Plaintiff Bullitt and members of WFC use Icicle Creek for recreation and spiritual renewal. Recreational, scientific and aesthetic benefits are derived from the existence of a healthy ecosystem and from wildlife in and around Icicle Creek.

Defendant Kenneth L. Salazar is the Secretary of the United States Department of the Interior. Ct. Rec. 1, ¶ 12. He and the other individual defendants are responsible for ensuring the Hatchery's compliance with applicable laws. Id. All of the named individuals are sued by plaintiffs in their official capacities.

Defendant United States Department of the Interior is an agency within the executive branch. Ct. Rec. 1, ¶ 13. Defendants United States Fish and Wildlife Service and Bureau of Reclamation are sub-agencies, referred to as "bureaus," within the United States Department of the Interior. Id.

Defendant Rowan W. Gould is the Acting Director for the United States Fish and Wildlife Service. Ct. Rec. 1, ¶ 14. Defendant Julie Collins is the Complex Manager of the Hatchery and defendant Michael L. Connor is the Commissioner of the United States Bureau of Reclamation. Ct. Rec. 1, ¶ 16-17.

Defendant United States Fish and Wildlife Service owns and operates the Hatchery. Ct. Rec. 1, ¶ 15. Hatchery operations are funded by the United States Bureau of Reclamation, Ct. Rec. 1, ¶ 18.

The Hatchery

The Leavenworth National Fish Hatchery, originally authorized by the Grand Coulee Fish Maintenance Project and reauthorized by the Mitchell Act of 1938, is one of three mid-Columbia stations constructed by the U.S. Bureau of Reclamation ("BOR") as fish mitigation facilities for the Grand Coulee Dam, Columbia Basin Project. Kempthorne, 613 F.Supp.2d 1209, 1213. Construction began in 1939 and was completed in 1941. The Hatchery is located three miles south of Leavenworth, Washington, near the mouth of Icicle Canyon. Id. Icicle Creek is a tributary of the Wenatchee River, located near Leavenworth, Washington, which itself feeds into the Columbia River. Id.

A series of dams and weirs was installed in Icicle Creek to create "ponds" to hold hatchery fish. In 1938, BOR filed applications with the the Washington Department of Ecology ("Ecology") to appropriate water from the Wenatchee River (Certificate No. 1823), Icicle Creek (Certificate No. 1824), and Snow Creek (Certificate No. 1825) for fish propagation at the Leavenworth National Fish Hatchery. The water right claims, as finally certificated by the State, are matters of public record.

In 1948, BOR transferred ownership of the Hatchery and all appurtenances, including water rights, to FWS. Ct. Rec. 10, at 3. Plaintiffs now allege that defendants—pursuant to Surface Water Right Certificate Nos. 1823, 1824, and 1825 issued by Ecology with priority dates back to 1942 and 1984—are in violation of the State Water Code. Complaint, ¶¶ 79-81.

The original design of the Hatchery contemplated diversion of up to 300 cubic feet per second (cfs) from the Wenatchee River. Water from this source was diverted and used in the early years, but was found to be unsuitable because of temperature and pathogen issues, and the Hatchery has discontinued use of the Wenatchee River.

Water right Certificate No. 1824 authorized diversion of 200 cfs from Icicle Creek. The application for Icicle Creek named two points of diversion and diversion conduits, "Icicle Supply Pipe Line to Leavenworth Hatchery and Leavenworth Hatchery Holding-pool channel." Ct. Rec. 10, at 3.

In 1983, during a mandatory review of beneficial use associated with new ground water applications, Ecology learned that the hatchery was no longer using the Wenatchee River water right, Certificate No. 1823. FWS officially abandoned that certificate in early 1984, and the water right was cancelled. During that review, Ecology learned that FWS had not been diverting the entire rate and duty under Certificate No. 1824 because it had ceased diverting water into the historic channel in 1979. That point of diversion and place of use, which accounted for 158 cfs of the 200 cfs authorized under Certificate No. 1824, were officially abandoned. Ecology issued a superceding permit based on the calculated capacity of the upstream pipeline. Ct. Rec. 20, at 3-4.

Prior to 1945, BOR drilled wells on Hatchery property to augment the water supply and regulate the temperature of the incoming surface water to improve fish propagation. FWS drilled other wells in subsequent years. FWS currently has several ground water wells, the functional equivalent of water rights. FWS has two water right claims for wells drilled prior to 1945, and two groundwater permits for wells drilled after the state groundwater code was enacted. Ct. Rec. 10, at 4.

III. DISCUSSION

At oral argument, Defendants summarized that their pending motion involves essentially three issues: The first is whether the government has waived its sovereign immunity to allow challenges in federal court under the APA to contest compliance with two state laws, the water code and fishway law? Second, even if the court does find such a waiver, does the six-year federal statute of limitations bar this challenge to the FWS's water rights? And third, even if the court finds the government has waived its sovereignty (and there is no statute of limitations bar to satisfy federal subject matter jurisdiction), does the prudential doctrine of primary jurisdiction warrant either dismissal or abstention at this time? More specifically, should this court defer...