OREGON NATURAL RESOURCES CONC. FUND v. U.S. ARMY CORPS OF ENG

ROBERT E. JONES, United States District Judge

This marks the forty-first year since Congress granted permission to the U.S. Army Corps of Engineers ("Corps") to construct Elk Creek Dam, the twenty-first year since the Corps decided to construct the dam, the sixteenth year that the dam has sat uncompleted at one-third of its intended height, the eleventh year that wild coho salmon migrating up Elk Creek have hitched rides aboard trucks to bypass the dam, and the sixth year that Southern Oregon Northern Califomia ("SONC") coho salmon have been listed as a threatened species under the Endangered Species Act ("ESA"). In the present lawsuit, the plaintiffs contend that the existing means of trucking the threatened coho around the dam is inadequate and inconsistent with the ESA's mandate that agencies "carry out programs for the conservation of endangered species and threatened species. . . ." 16 U.S.C. § 1536(a)(1). The defendants counter that carting fish is an agency action, not an agency program, and have moved to dismiss (# 25) on the ground that plaintiffs have failed to state a claim upon which relief can be granted.

I agree with the defendants that § 7(a)(1) of the ESA applies to agency programs and § 7(a)(2) applies to agency actions. And because the plaintiffs have not alleged that the defendants lack a conservation program or that the defendants have failed to follow the required procedures in formulating a conservation program, I conclude that the plaintiffs can prove no set of facts under which they would prevail and grant the motion to dismiss.

Elk Creek flows into the Rogue River 152 miles upstream from where the Rogue meets the Pacific Ocean. See National Marine Fisheries Service, Biological Opinion, January 22, 2001, at 1 ("Biological Opinion"). Although the Elk Creek watershed comprises only three percent of the total area in the Rogue River Basin, Elk Creek is the destination for a substantial number of coho salmon that migrate up the Rogue River. See Biological Opinion at 9. For the years between 1993 and 1999, an average of 15.6 percent of coho counted at Gold Ray Dam entered Elk Creek, of which 1997, 1998, and 1999 saw 21.5, 30.8 and 20.3 percent return respectively. See Biological Opinion at 8-9. The U.S. Fish and Wildlife Service reports that Elk Creek has historically been of great importance to coho salmon as well, stating that in 1961 one-third, or 3,600, of the spawning coho in the Rogue Basin entered Elk Creek to spawn above the current dam-site. sEE Biological Opinion at 9.

Since 1987 the migrating coho have met an impediment 1.7 miles after entering Elk Creek. See Biological Opinion at 1. As part of a plan to control flooding in the Rogue River Basin, in 1962 Congress authorized the Corps to build three dams. See Oregon Natural Resources Council v. Marsh, 832 F.2d 1489, 1492 (9th Cir. 1987). The Corps constructed the Lost Creek Dam on the Rogue River in 1977 and the Applegate Dam on the Applegate River in 1981. See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 364 (1989). But construction of Elk Creek Dam was halted by an order of this court. See Oregon Natural Resources Council v. Marsh, 677 F. Supp. 1072 (D. Or. 1987).

To enable migrating coho to reach the habitat above the dam, the Corps employs a "trap and haul" facility. Between October 15 and May 1, a weir (a low dam) spanning Elk Creek blocks migrating coho and corrals them into a six-foot wide, twenty-seven-foot long concrete holding pond. Biological Opinion at 2-3. In less than thirty hours after entering the holding pond, the fish are routed into a four-foot well in the loading tower, spilled down through a U-shaped trough, and dropped six feet into an aerated 300-gallon transport tank on a truck. See Biological Opinion at 3. The fish are then driven 0.6 miles above the dam and released back into Elk Creek no more than forty-five minutes after entering the transport truck. During the migratory season, fish are hauled no less than twice daily on weekdays and at least once daily on weekends. See Biological Opinion at 3.

In January 2001, in response to the Corps' request for consultation on four fish passage alternatives at Elk Creek Dam, the National Marine Fisheries Service ("NMFS") issued a Biological Opinion. The four alternatives considered were: (1) maintaining the existing trap and haul facility; (2) utilizing the existing diversion tunnel; (3) constructing a new trap and haul facility; and (4) breaching the dam. See Biological Opinion at 1. NMFS concluded that maintaining the existing trap and haul facility will "result in significant take of SONC coho salmon . . . and will likely contribute to the eventual extirpation of SONC coho salmon from the Elk Creek watershed." Biological Opinion at 15. Likewise, NMFS concluded that using the existing diversion tunnel will "quickly result in the extirpation of SONC coho salmon from Elk Creek [and the] eventual extirpation of KMP steelhead from the system." Biological Opinion at 16. Regarding the third alternative, NMFS found that because of the lack of a design and the challenges posed by the site, there is considerable uncertainty regarding how well a new trap and haul facility would protect SONC coho salmon. Biological Opinion at 18. NMFS concluded that the fourth alternative, dam breaching, would "restore fish passage and aquatic habitat in the Elk Creek watershed . . . and significantly benefit SONC coho salmon. . . ." Biological Opinion at 27.

In July 2002, plaintiffs Oregon Natural Resources Council Fund et al. ("ONRC"), filed an amended complaint (# 22) alleging that the Corps violated the ESA by: (1) operating the trap and haul facility such that the mortality limits for wild coho salmon set forth in the incidental take permit are exceeded; (2) taking wild coho salmon in the maintenance and operation of Elk Creek Dam, its tunnel and associated features; (3) failing to take appropriate steps to conserve wild coho salmon; (4) failing to consult with NMFS on the impacts of livestock grazing on lands upstream of Elk Creek Dam; and (5) taking wild coho salmon through the authorization or allowance of livestock grazing. See Amended Complaint at 11-13, ¶¶ 32-34. The Corps filed a motion to dismiss the third, fourth and fifth claims in plaintiffs' amended complaint, arguing that this court lacks subject matter jurisdiction and that ONRC has failed to state a claim in its third allegation. See Defendants' Memorandum in Support of Motion to Dismiss at 2-3. ONRC's response contests the dismissal of only the third claim. See Plaintiffs' Partial Opposition to Defendants' Motion to Dismiss at 1-2.

A motion to dismiss for failure to state a claim may be granted only if it is clear that the plaintiff cannot prevail under any set of facts that could be proved consistent with the allegations. See Whitmire v. Arizona, 298 F.3d 1134, 1136 (9th Cir. 2002). "When reviewing a 12(b)(6) dismissal, the facts set forth in a plaintiff's complaint are to be interpreted liberally and taken as true for the purpose of determining whether or not a basis for the plaintiff's complaint exists." Rubin v. City of Santa Monica, 308 F.3d 1008, 1013 (9th Cir. 2002) (citing Hishon v. King Spalding, 467 U.S. 69, 73 (1984)). Although generally the court evaluates the complaint on its face, under the "incorporation by reference" rule, a court may look beyond the pleadings at documents that were referenced extensively and are accepted by all parties as authentic. See Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002).

In frill, ONRC's third claim alleges that "[t]he Corps of Engineers is violating its duty under section 7(a)(1) to conserve wild coho salmon by operating and maintaining the Elk Creek dam and associated facilities, by failing to breach the dam or take other measures to ensure effective fish passage, and by ineffectively operating or maintaining the trap and haul facility, weir, tunnel, and associated features." Amended Complaint at 12, ¶ 32. The flaw in ONRC's claim, according to the Corps, is that a plain reading of § 7(a)(1) and § 7(a)(2) of the ESA clearly shows that § 7(a)(1) regulates broad agency programs, while § 7(a)(2) regulates specific agency actions. Because ONRC contends that only the Corps' isolated actions violate § 7(a)(1), the Corps argues that ONRC has failed to state a claim. Furthermore, the Corps argues that under § 7(a)(1) agencies are afforded substantial discretion in determining how best to fulfill their obligations. ONRC counters that: (1) the Corps has not cited any cases to support the proposition that § 7(a)(1) cannot apply to specific agency action; (2) the Corps has failed to use all methods and procedures to rehabilitate the species; and (3) the Corps' discretion in satisfying § 7(a)(1) does not divest this court of jurisdiction to decide whether the Corps has abused its discretion.

Section 7(a)(1) of the ESA states that "Federal agencies shall . . . utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the conservation of endangered species and threatened species. . . ." 16 U.S.C. § 1536(a)(1). The Ninth Circuit has stated that conservation is the "key term" in this section. See Pyramid Lake Paiute Tribe v. U.S. Dept. of Navy, 898 F.2d 1410, 1416 (9th Cir. 1990). Conservation is defined in an earlier section of the statute as "to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary." § 1532(3). The Fifth Circuit has stated that "[t]o read the command of § 7(a)(1) to mean that agencies have only a generalized duty would ignore the plain language of the statute." Sierra Club v. Glickman, 156 F.3d 606, 615-616 (5th Cir. 1998).

Still, an agency is afforded "some discretion" in its determination of how best to conserve under § 7(a)(1), see Pyramid Lake, 898 F.2d at 1418, and "it is clearly beyond [a] court's authority to order that any specific conservation measure to be undertaken." Waterwatch of Oregon v. United States Army Corps of Engineers, 2000 WL 1100059 at * 11 (D. Or. 2000). To comply with the procedures required under § 7(a)(1), an agency must consult with the U.S. Fish and Wildlife Service, but the agency is not bound to adopt the recommendation. See 50 C.F.R. § 402.14(j) ("Conservation recommendations are advisory and are not intended to carry any binding legal force."). The task for a court conducting judicial review is to require the agency to show that it has considered the relevant factors and followed the required procedures, but once that is done "the court may not substitute its judgment on the merits for the agency's judgment." Sierra Club, 156 F.3d at 618.

Section 7(a)(2) directs that agencies shall "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. . . ." § 1536(2). The term "action" is defined in the regulations as "all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies. . . ." 50 C.F.R. § 402.02. As opposed to the theme of recovery in § 7(a)(1), the purpose of § 7(a)(2) is to insure that agency activities or programs do not jeopardize a species. See Stanford Environmental Law Society, ThE ENDANGERED SPECIES ACT 83 (Stanford University Press 2001).

This court recently concluded that the distinct applications of § 7(a)(1) to agency programs and of § 7(a)(2) to agency actions "is clear on the face of the statute." Hells Canyon Preservation Council v. U.S. Forest Service, Civ. No. 00-755-HU at 31 (FR, Jan. 30, 2001),adopted (Opinion and Order, King, J., Mar. 30, 2001). There, the plaintiff argued that the defendants had violated § 7(a)(1) by continuing to manage the Hells Canyon National Recreation Area in a manner which allowed degradation of habitat. The court stated that an agency can defeat a § 7(a)(1) claim by showing that it has a program for conservation of listed species and that the appropriate agency was consulted. See Hells Canyon, Civ. No. 00-755 at 32 (citing Waterwatch, 2000 WL 1100059 at * 11). Because the requisite showing had been made, the court granted the motion to dismiss for failure to state a claim to the extent that the plaintiff sought an order requiring the defendants to undertake a specific action. See Hells Canyon, Civ. No. 00-755 at 32.

Here, ONRC alleges that the Corps is violating its duty to conserve under § 7(a)(1) by operating Elk Creek Dam, by not breaching the dam, and by ineffectively managing the trap and haul facility. In other words, ONRC does not contend that the Corps lacks a program for conservation, but argues that the affirmative steps in the conservation program chosen by the Corps are inadequate. However, where an agency has followed the required procedures and set forth a program for the conservation of a threatened or endangered species in compliance with § 7(a)(1), the courts will not evaluate the success of the program and order the agency to undertake what may be a more successful course of action. See Sierra Club, 156 F.3d at 618; Waterwatch, 2000 WL 1100059 at *11 ("While it might be desirable for the Corps to have a more organized approach to carrying out programs for the conservation of listed species, and for the Corps to have a conservation program applicable to pump station permits, it is clearly beyond this court's authority to order that any specific conservation measure to be undertaken."). Therefore, because ONRC alleges that more successful alternatives for conserving coho in Elk Creek exist (such as breaching the dam), and argues that the Corps is violating its duty to conserve under § 7(a)(1) by not selecting one of those alternatives, under no set of facts can ONRC prevail because the Corps has discretion to select the measures to carry out its programs. See Pyramid Lake, 898 F.2d at 1418; Defenders of Wildlife v. Babbitt, 130 F. Supp.2d 121, 135 (D. D.C. 2001) ("`[t]he case law is well settled that federal agencies are accorded discretion in determining how to fulfill their § 1536(a)(1) obligations. . . . Likewise, this court is not the proper place to adjudge and declare that defendants have violated the ESA as a matter of law by not implementing the processes listed by [plaintiff].'" (quoting Coalition for Sustainable Resources v. U.S. Forest Service, 48 F. Supp.2d 1303, 1315-16 (D. Wyo. 1999) (and cases cited therein))).

If ONRC's claim is that the Corps' actions at Elk Creek Dam are counterproductive and jeopardize SONC coho in violation of § 7(a)(2), or if ONRC's claim is that the Corps has failed to formulate its conservation program in accordance with § 7(a)(1), it may file an amended complaint within ten days.

For the reasons set forth above, the defendants' motion to dismiss claims three, four and five of the amended complaint (# 25) is GRANTED. The plaintiffs may file an amended complaint within ten days.