Opinion
Civil No. 04-3188 (PAM/RLE).
December 10, 2004
MEMORANDUM AND ORDER
This matter is before the Court on cross-Motions for Summary Judgment. For the reasons that follow, Plaintiffs' Motion is denied and Defendants' Motions are granted.
The Court denied the request for oral argument and entertained this Motion on the parties' submissions.
BACKGROUND
This dispute arises out of the management of the Missouri River. On June 21, 2004, this Court upheld the validity of the 2003 Amended Biological Opinion ("2003 Amended BiOp") and the 2004 Master Manual. On July 9, 2004, Plaintiffs American Rivers, Inc., Environmental Defense, and Izaak Walton League of America, Inc. (collectively "American Rivers") filed this action against Defendants U.S. Army Corps of Engineers ("Corps"), Les Brownlee, U.S. Fish and Wildlife Service ("FWS") and Gale Norton (collectively "Federal Defendants"), asserting that river operations were not in compliance with the 2003 Amended BiOp. On July 12, 2004, American Rivers sought a preliminary injunction requiring the Corps to reduce releases from Gavins Point Dam to 25 Kcfs. The Court vacated that hearing and then set the briefing schedule for these summary judgment motions.
The heart of this dispute relates to the 2003 Amended BiOp. A biological opinion is the result of an environmental consultation between the Corps and the FWS. See 16 U.S.C. § 1536(a)(2). The FWS issues the biological opinion, detailing how the Corps' proposed operations will affect the particular species in the action area. Id. § 1536(a)(3). If the FWS concludes that jeopardy will result to these species, then the FWS must set forth a reasonable and prudent alternative ("RPA"). Id. A RPA is an alternative action "that can be implemented in a manner consistent with the intended purpose of the action," within the legal authority of the Corps. 50 C.F.R. § 402.02. A RPA must be economically and technologically feasible to implement, and is designed to avoid the likelihood of jeopardizing the continued existence of the species. Id.
After consulting with the Corps, the FWS issued the 2003 Amended BiOp on December 16, 2003. Because the FWS concluded that jeopardy would result to the pallid sturgeon, piping plover, and least tern, the FWS set forth RPAs as required. In particular, the sturgeon RPA requires the Corps to implement both flow modifications and artificial habitat construction. RPA VII(1)(b) states:
[I]n any year that the Drought Conservation Plan results in a shortening of the navigation season, the Corps shall ensure that the period of time that the navigation is suspended shall occur during the low summer flow period previously described for the pallid sturgeon. When approximately 1,200 acres of new shallow water habitat has been made available above that which currently exists between Sioux City and Omaha (approximately the amount that would be developed through flow management) the Corps, in consultation with the Service, may modify flows to take advantage of that habitat and more fully meet project purposes.
(FWS Administrative Record ("AR") 1457 at 33760.) As outlined in the 2004 Annual Operating Plan ("AOP"), the Corps intended to construct the 1,200 acres of shallow water habitat ("SWH"). According to Federal Defendants, this construction would enable the Corps to consult with the FWS to determine if flows could be increased above the 25 Kcfs low water threshold during the summer season.
On June 7, 2004, the Corps informed the FWS that it had successfully constructed 1,200 acres of SWH. (Hennigan Aff. Ex. 2.) However, on July 9, 2004, the FWS concluded that "the Corps was unable to demonstrate, through pre and post monitoring, that it has constructed 1,200 acres of available and functioning SWH by July 1." (Id. Ex. 4.) The FWS requested additional information from the Corps. (See id. Ex. 3.) The Corps responded to this request on June 16 and June 23, 2004. (See id.) On June 24, 2004, the FWS concluded that the Corps' proposed operations satisfied RPA VII of the 2003 Amended BiOp: "Based on review of the Corps' documentation, our analysis, and deference to expertise of the Corps, the Service accepts the Corps' determination that 1,200 acres of new shallow water habitat will be available to the [sic] pallid sturgeon on [sic] July 1, 2004." (Id.) Federal Defendants then notified the Court that the 1,200 acres of SWH had been successfully constructed in accord with RPA VII(1)(b). (FWS AR 2285 at 42593.) The Corps then increased flows above the 25 Kcfs low water threshold. Due to heavy precipitation, however, the Corps reduced flows from 30 Kcfs to 27 Kcfs on July 9, 2004. On July 14, 2004, the Corps again reduced flows to 25 Kcfs. The Corps maintained flows at 25 Kcfs until September 1, 2004, when it increased water flows to 26 Kcfs to support project purposes.
American Rivers now asserts that the Corps has not complied with the 2003 Amended BiOp, in violation of the Endangered Species Act ("ESA"), 16 U.S.C. § 1538(a)(1)(B). American Rivers further asserts that the FWS's conclusion that the Corps had successfully constructed 1,200 acres of SWH was arbitrary and capricious, in violation of the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq. Federal Defendants contend that they have complied with the terms of the ESA, APA and 2003 Amended BiOp. Intervenor-Defendants Missouri, Nebraska and Nebraska Public Power District (collectively, "Intervenor Defendants") support the Federal Defendants' position.
DISCUSSION
A. Jurisdiction
1. Notice
All Defendants contend that American Rivers' claims against the Corps fail because American Rivers failed to file a proper notice of intent to sue. The citizen-suit provision of the ESA requires that a suit may not be brought until sixty days after written notice of the specific, alleged violation is given to both the Secretary of the Interior and the defendant. 16 U.S.C. § 1540(g)(2)(A)(i).
On January 14, 2004, American Rivers filed a notice of intent to sue letter. (Oct. 19, 2004 Hennigan Aff. Ex. 2.) This letter set forth American Rivers' claims regarding the 2003 Amended BiOp and its alleged inconsistencies with the 2000 BiOp. In particular, this letter complains that: (1) the 2004 Annual Operating Plan failed to adhere to the requirements of the 2000 BiOp; (2) the 2003 Amended BiOp is inconsistent with the requirements of the 2000 BiOp; (3) the 2003 Amended BiOp "does not satisfy the legal and scientific requirements of the ESA;" (4) the 2003 Amended BiOp's provisions that provide for the creation of SWH are "inconsistent with the requirements contained in the 2000 BiOp;" and (5) the 2003 BiOp is a reversal of the 2000 BiOp and is "untenable and arbitrary." (Id.) Thus, this letter gives notice of American Rivers' intent to sue over the validity of the 2003 Amended BiOp and 2004 Annual Operating Plan, as they contravene the 2000 BiOp. As the parties are aware, the Court's June 21, 2004, Order disposed of all these claims because it declared that the 2003 Amended BiOp was valid.
In this action, American Rivers alleges that the Corps has violated the ESA because its current operations do not comply with the 2003 Amended BiOp. (Compl. ¶¶ 68-69.) Specifically, the Complaint contends that the Corps' operations violate the ESA because the Corps failed to maintain low summer water flows as allegedly required in the 2003 Amended BiOp. Thus, the issue is whether the January 14, 2004, letter by American Rivers, premised on the validity of the 2000 BiOp, satisfies the notice requirement of 16 U.S.C. § 1540(g)(2)(A)(i).
The sixty day notice requirement is jurisdictional. See San Carlos Apache Tribe v. United States, 272 F. Supp. 2d 860, 871 (D. Ariz. 2003). Courts interpret this notice requirement strictly. See Hallstrom v. Tillamook County, 493 U.S. 20, 26, 31 (1989); see also Water Keeper Alliance v. United States Dep't of Def., 271 F.3d 21, 29 (1st Cir. 2001). This provision is intended for "settlement or other resolution of a dispute without litigation."Southwest Ctr. for Biological Diversity v. United States Bureau of Reclamation, 143 F.3d 515, 520 (1998). Thus, the notice must "adequately inform the agency of the exact grievances against it." Water Keeper Alliance, 271 F. 3d at 29-30.
Between the time of American Rivers' notice of intent to sue and their Complaint in this action, the Court upheld the validity of the 2003 Amended BiOp and 2004 Master Manual and Annual Operating Plan. (See June 21, 2004, Order.) In reaching this conclusion, the Court rejected American Rivers' argument that the Corps should operate under the 2000 BiOp. Although the Court acknowledged the similarities between the 2000 BiOp and the 2003 Amended BiOp, the Court's decision nonetheless mandated that the 2003 Amended BiOp was the controlling BiOp. Now, all Defendants argue that the January 14, 2004, notice of intent to sue, which was premised on the applicability of the 2000 BiOp, is inadequate thus depriving this Court of jurisdiction over American Rivers' ESA claims.
The Court agrees with Defendants. American Rivers' notice of intent to sue discussed the Federal Defendants' failure to comply with the 2000 BiOp. However, American Rivers' Complaint attacks the implementation of the 2003 Amended BiOp. American Rivers argues that although the January 14, 2004, notice is premised on the validity of the 2000 BiOp, the substantive claims in the notice challenge the water flow operations of the Corps, and therefore are sufficient to support the claims in the Complaint. The Court disagrees, and finds the reasoning articulated inWater Keeper Alliance v. United States Dep't of Defense persuasive. 152 F. Supp. 2d 163, 175 (D.P.R. 2001). In Water Keeper Alliance, the district court granted defendants' partial motion to dismiss, agreeing that the notice of intent to sue did not support the claims in the plaintiffs' complaint. The plaintiffs' notice of intent to sue attacked defendants' use of the 1980 and 1981 biological opinions, while their complaint attacked defendants' use of the new 2000 biological opinion.Id. at 173-74. Although the plaintiffs pointed out that there were no "substantive discrepancies" between the notice of intent to sue and the claims in their complaint, the Court nonetheless concluded that the plaintiffs' "failure to provide a new notice of intent to sue based on the 2000 biological opinion" divested the court of jurisdiction. Id. at 176. American Rivers' Complaint asserts that the Corps has failed to properly implement the 2003 Amended BiOp, while the January 14, 2004, notice of intent to sue argues that the 2003 Amended BiOp contravenes the requirements of the 2000 BiOp. Thus, the Court concludes that American Rivers' notice of intent to sue cannot support the claims brought in the Complaint. Because the Court must strictly construe the ESA's notice requirement, American Rivers' claims against the Corps under the ESA are dismissed.See Hallstrom, 493 U.S. at 26, 31.
2. Mootness
Federal Defendants also contend that American Rivers' claims are moot. American Rivers asserts that the Corps' 2004 operations failed to provide for low summer flows as required by the 2003 Amended BiOp. American Rivers further alleges that the FWS allowed the Corps to increase flows in July 2004 even though the Corps had not successfully constructed 1,200 acres of SWH. In its Complaint, American Rivers requests that the Court order the Corps to maintain flows at 25 Kcfs and set aside the FWS's conclusion that the Corps complied with RPA VII.
A case is moot and must be dismissed if there is no live case or controversy for the Court to adjudicate. See Missouri ex rel. Nixon v. Craig, 163 F.3d 482, 484 (8th Cir. 1998). On July 9, 2004, American Rivers filed this Complaint. On July 12, 2004, American Rivers sought an injunction. On July 14, 2004, the Corps had reduced flows to 25 Kcfs, and flows remained at this level until September 1, 2004. It is of no moment whether the Corps successfully constructed 1,200 acres of SWH, or whether the FWS's approval of the Corps' operations was arbitrary and capricious. No purpose would be served if the Court reached the merits in this case, as American Rivers cannot articulate any specific injury. First, the Corps lowered flows to 25 Kcfs, as American Rivers requested. Second, even if the FWS conclusion was arbitrary and capricious, setting aside this agency decision would not afford any relief to American Rivers. As the Eighth Circuit has noted, "[i]t is of no consequence that the controversy was live at earlier stages in this case; it must be live when we decide the issues." South Dakota v. Hazen, 914 F.2d 147, 150 (8th Cir. 1990). Thus, the Court finds that American Rivers' claims against both the Corps and the FWS as to the implementation of RPA VII in 2004 are moot and must be dismissed.
C. Interpretation of RPA VII
To the extent that American Rivers' challenges Federal Defendants' interpretation of RPA VII, those claims fall within the exception to the mootness doctrine. This exception requires that the (1) challenged action is "in its duration too short to be fully litigated prior to its cessation or expiration," and (2) there is a "reasonable expectation" that the parties will be "subjected to the same action again." Id. (citing Weinstein v. Bradford, 423 U.S. 147, 149 (1975)). In this case, the 2003 Amended BiOp governs the Corps' operations and each year the Corps must comply with this BiOp. Thus, to the extent that the parties dispute the interpretation of RPA VII, this issue is reviewable.
However, the Court refrains from reaching the merits of this claim at this time. As the Intervenor Defendants point out, the Court's June 21, 2004, Order is on appeal to the Eighth Circuit Court of Appeals. One of the many issues included in this appeal is the validity of the 2003 Amended BiOp. It contravenes common sense and judicial efficiency for this Court to interpret a provision of the 2003 Amended BiOp that the parties vigorously dispute on appeal. Dismissing these claims will not prejudice any of the parties, as each may again pursue such claims in the future if necessary.
CONCLUSION
The Court finds that it lacks jurisdiction to decide American Rivers' claims against the Corps, and that the claim against the FWS relating to the implementation of RPA VII is moot. Accordingly, IT IS HEREBY ORDERED that:
1. Federal Defendants' Motion for Leave to File Excess Pages (Clerk Doc. No. 73) is GRANTED;
2. Plaintiffs' Motion for Leave to File Excess Pages (Clerk Doc. No. 61) is GRANTED;
3. Federal Defendants' Motion for Summary Judgment (Clerk Doc. No. 54) is GRANTED;
4. Intervenor Defendants' Motions for Summary Judgment (Clerk Doc. No. 49) is GRANTED;
5. Plaintiffs' Motion for Summary Judgment (Clerk Doc. No. 42) is DENIED; and
6. Plaintiffs' Complaint is DISMISSED without prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.