Opinion
3:24-cv-00755-JR
07-01-2024
DAVID WHITE, Plaintiff, v. DAVE COFFMAN, as geoscientist, Resource Environmental Solutions; MARK BRANSOM, in his capacity as Chief Executive Officer of Klamath River Dam Renewal Corporation; and KLAMATH RIVER RENEWAL CORPORATION, Defendants.
FINDINGS AND RECOMMENDATION
Jolie A. Russo, United States Magistrate Judge
Defendants Dave Coffman, Mark Bransom, and Klamath River Dam Renewal Corporation (“Renewal Corporation”) move to dismiss pro se plaintiff David White's complaint pursuant to Fed.R.Civ.P. 12(b)(1). For the reasons stated below, defendants' motion should be granted and this case should be dismissed.
BACKGROUND
This case arises out of plaintiff's efforts to stop the planned demolition of a series of dams on the Klamath River.The Klamath River flows from southern Oregon through northern California and “passes through a series four hydroelectric dams: J.C. Boyle, which is in Oregon, and Copco No. 1, Copco No. 2, and Iron Gate, all of which are in California.” Linthicum, 2023 WL 5275491 at *3. These dams are part of the Klamath Hydroelectric Project and come under the authority of FERC, which “has exclusive power to grant licenses for their operation or approval for the surrender of the licenses and the decommissioning and removal of the dams.” Id.
Plaintiff's suit is not the first attempt to prevent the demolition of these dams. In June 2023, two pro se litigants - Dennis Linthicum, a resident of Oregon, and Anthony Intiso, a resident of California - filed a case against Federal Energy Regulatory Commission (“FERC”), Oregon, and California alleging that the removal of the Klamath River dams resulted in environmental and economic degradation in violation of the Wild and Scenic Rivers Act. In denying the plaintiffs' preliminary injunction and dismissing the case, District Judge Aiken held that subject matter jurisdiction was lacking. See generally Linthicum v. Fed. Energy Regul. Comm'n, 2023 WL 5275491 (D. Or. Aug. 16, 2023).
In 2010, PacifiCorp, which operated the dams and held the licenses associated therewith, and 47 other parties, including the States of Oregon and California, the U.S. Department of the Interior, Tribes, environmental advocacy groups, etc. executed the Klamath Hydroelectric Settlement Agreement, “which provided for decommissioning and removing the J.C. Boyle, Copco No. 1, Copco No. 2, and Iron Gate developments.” Markley Decl. Ex. 1, at 3 (doc. 39-1). In 2016, the Klamath Hydroelectric Settlement Agreement was amended to its current, operative form. Id.
The amended agreement set forth a process by which PacifiCorp and the Renewal Corporation would request FERC approval to transfer the dam licenses to the Renewal Corporation, which would then seek approval to decommission and remove the four dams and associated facilities under FERC's license surrender procedures. Id. at 3-7; see also Linthicum, 2023 WL 5275491 at *3 (“the various stakeholders agreed that the dam removal and river restoration would be overseen by a newly formed entity called the [Renewal Corporation]”). These actions were aimed at improving water quality and advancing the long-term restoration of the natural fish populations in the river basin; restoring anadromous fish passage to viable habitat made inaccessible by the dams for more than a century; restoring the salmonid fisheries used for commerce, recreation, subsistence, and Tribal cultural purposes; and ameliorating conditions including high disease incidence, high summer and fall water temperatures in the river and reservoirs, and impaired sediment supply and transport, among others. Markley Decl. Ex. 1, at 89 (doc. 39-1).
The Renewal Corporation (as the applicant) and PacifiCorp (as the licensee) filed the surrender application in September 2016. Id. at 4. “On June 17, 2021, FERC issued an order approving the transfer of the license for the dams from PacifiCorp to Oregon, California, and the [Renewal Corporation] as co-licensees.” Linthicum, 2023 WL 5275491 at *3.
On November 17, 2022, FERC issued a second order approving surrender of the licenses and decommissioning the four hydroelectric dams, powerhouses, and associated facilities on the Klamath River (“Surrender Order”). Id. “The surrender order comes with conditions that must be met by the [Renewal Corporation] as part of the removal and restoration work,” including “compliance mitigation measures [that] come from recommendations made in an Environmental Impact Statement (‘EIS') issued on August 26, 2022.” Id. at *4.
The EIS found that “the proposed action would result in environmental benefits that outweigh the associated adverse effects.” Markley Decl. Ex. 1, at 28 (doc. 39-1). In particular, “dam removal and restoration of natural flow conditions would significantly improve water quality and provide anadromous fish access to historical habitat upstream of Iron Gate Dam,” as well as open fish passage that would “improve the resiliency of these populations and other aquatic resources.” Id. FERC considered the EIS when issuing the Surrender Order. Id. at 29.
On November 22, 2022, defendants received a Clean Water Act Section 404 permit for dam removal. Houlihan Decl. Ex. 1 (doc. 60-1).
Rehearing of the Surrender Order, or the license transfer, was not sought within the timeframe specified in 16 U.S.C. § 825l . The Renewal Corporation thereafter began undertaking the engineering, construction, and environmental restoration necessary to decommission the Klamath River dams, as well as to implement the Clean Water Act Section 404 permit. Dam removal is projected to be finished by October 2024. Markley Decl. Ex. 7 (doc. 39-7). Resource Environmental Solutions - i.e., the Renewal Corporation's habitat restoration contractor - has performed ongoing biological monitoring and will continue work after dam removal is complete. See, e.g., Markley Decl. Ex. 8 (doc. 39-8).
On May 3, 2024, plaintiff initiated this action seeking to enjoin the “removal of the last of 4 dams on the Klamath River, the Iron Gate dam.” Compl. pg. 6 (doc. 1). Specifically, plaintiff alleges that defendants “failed to proceed in compliance with approved scientific method [or] perform preliminary research by obtaining testimony from local residents and well-informed government employees (stake holders).” Id. at pg. 4. According to plaintiff, “we need to dredge behind the dams to get the fish ladders working again,” which is an action that “[v]irtually every scientist [and lay person has] endorse[d] as soon as it's pointed out to them . . . it's only the radical environmentalists who drink the Kool-Aid of their own propaganda who disagree.” Id. at pgs. 2, 5, 13. As relief, plaintiff seeks criminal liability against defendants and an award of “around $30 million per dam” for costs associated with “dredging,” as well as unspecified “[c]ompensation for silt cleanup of the dams already removed from the Klamath River and loss of county and state revenue for fish and game licenses.” Id. at pgs. 23-24.
In conjunction with his Complaint, plaintiff filed a Motion for Preliminary Injunction. Thereafter, he filed various motions requesting, among other relief, a declaration that FERC's actions are null and void, criminal liability against defendants under 18 U.S.C. § 41, and an order stopping the ongoing removal of the Iron Gate dam. Order 1 (May 16, 2024) (doc. 15). District Judge Nelson denied each motion on the grounds that “[n]one of these requests are within the Court's discretion, properly raised at this stage of the proceedings, or procedurally appropriate.” Id.; see also Order (May 20, 2024) (doc. 21); Order (May 22, 2024) (doc. 25).
On May 16, 2024, defendants moved to set a briefing schedule regarding plaintiff's Motion for Preliminary Injunction and their forthcoming Motion to Dismiss, denoting plaintiff “has not yet served any of the Defendants with a summons and copy of the Complaint . . . so there are not yet any deadlines for Defendants to respond to either the Complaint or the Motion for Preliminary Injunction.” Defs.' Mot. Set Br. Schedule 2 (doc. 18). Defendants specified they were “willing to deem Plaintiff as having properly [effectuated service] as of May 17, 2024,” such that they requested until June 7, 2024, to file their Motion to Dismiss. Id. at 2-3. Defendants also requested the Court rule on the Motion to Dismiss prior to requiring a response to plaintiff's Motion for Preliminary Injunction. Id. at 3.
Plaintiff opposed defendants' motion on the grounds that he “delivered to legal counsel by email the complaint and injunction” on May 7, 2024, and provided service papers to the U.S. Marshalls on May 20, 2024, such that defendants' filings should be deemed “improper and untimely.” Pl.'s Resp. to Mot. Set Br. Schedule 4-7 (doc. 24); Pl.'s Second Resp. to Mot. Set Br. Schedule 7 (doc. 27).
On May 24, 2024, Judge Nelson entered the following Minute Order:
Defendants' Joint Motion to Set Briefing Schedule is GRANTED. Defendants' deadline to file the motion to dismiss is June 7, 2024 . . . Pleading deadlines related
to plaintiff's Motion for Preliminary Injunction are stayed pending resolution of defendants' motion to dismiss. Plaintiff's [currently pending] motions are DENIED for the same reasons already stated on the record. The Court has denied eight of plaintiff's motions, each asking for the same relief that has previously been denied, and the Court will not entertain further motions by plaintiff on those issues until resolution of defendant's motion to dismiss and plaintiff's motion for preliminary injunction.Order (May 24, 2024) (doc. 30).
On May 31, 2024, defendants filed the present motion to dismiss.Briefing was completed regarding that motion on June 24, 2024.
Plaintiff continued to file various motions and objections to defendants' actions, such that the Court indicated: “Briefing schedules will be reset, and substantive rulings will issue surrounding [plaintiff's pending motions] after a final jurisdictional determination has been made.” Order (June 4, 2024) (doc. 47); Order (June 6, 2024) (doc. 49).
STANDARD OF REVIEW
Where the court lacks subject matter jurisdiction, the action must be dismissed. Fed.R.Civ.P. 12(b)(1). The party who seeks to invoke the subject matter jurisdiction of the court bears the burden of establishing that such jurisdiction exists. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). The court may hear evidence regarding subject matter jurisdiction and resolve factual disputes where necessary. Kingman Reef Atoll Invs., LLC v. United States, 541 F.3d 1189, 1195 (9th Cir. 2008).
DISCUSSION
Defendants argue plaintiff's challenges to the Klamath River dam removal “should be dismissed without leave to amend because they amount to a collateral attack on the Surrender Order, which under the Federal Power Act (FPA) is reviewable only by a U.S. Court of Appeal following a mandatory procedure that [he] did not follow.” Defs.' Mot. Dismiss 2 (doc. 37). Defendants assert any claims surrounding “non-compliance with the Surrender Order . . . should also be dismissed without leave to amend because the FPA does not include a private right of action to enforce conditions of FERC licenses” and plaintiff “fails to demonstrate how Defendants failed to comply with the mitigation measures required by the Surrender Order.” Id. Additionally, defendants maintain plaintiff “has not alleged any facts to establish standing” regarding his civil or criminal claims. Id.
In his various responses, plaintiff pivots away from the allegations in his Complaint and instead argues that “defendants had no legal right to take out any Dams because they didn't do mitigation required about items 24 to 30 in the FERC document” or obtain a “404 (Clean Water Act)” permit. Pl.'s Mot. Vacate 3 (doc. 43); Pl.'s Resp. to Mot. Dismiss 3-4, 7, 15-17 (doc. 51); see also Pl.'s Am. Surreply to Mot. Set Br. Schedule 12 (doc. 42) (“[p]laintiff is not requesting the District Court to rule the FERC document is null and void . . . [he] may have said that mistakenly previously”); but see Pl.'s Memo. 13, 16 (doc. 46) (“[p]laintiff requests the [Court] stay the FERC document 20180315-3093 for the purposes of this case . . . The FERC document is not worth the paper it is written on [and] is complete nonsense”); Pl.'s Second Resp. to Mot. Dismiss 30 (doc. 53) (“plaintiff moves [for a ruling that the] FERC document is null and void”). He also contends that dismissal is not warranted because defendants' motion is “untimely,” and the Complaint adequately states a claim under Fed.R.Civ.P. 12(b)(6). See, e.g., Pl.'s Resp. to Mot. Dismiss 3 (doc. 51); Pl.'s Second Resp. to Mot. Dismiss 8-9 (doc. 53).
In his latest motion, plaintiff alleges defendants violated the Wild and Scenic Rivers Act and National Environmental Policy Act. Pl.'s Mot. Am. 5-9 (doc. 62). Even assuming plaintiff's motion was procedurally proper, these new allegations fail under both Linthicum and the FPA for the reasons set forth herein. See, e.g., LR 7-1(a); LR 15-1(a)-(b); Fed.R.Civ.P. 15(a); see also Justice v. Rockwell Collins, Inc., 117 F.Supp.3d 1119, 1132 n.7 (D. Or. 2015), Cff'd, 720 Fed.Appx. 365 (9th Cir. 2017) (“pro se plaintiffs must comply with the local rules”) (citation and internal quotations omitted).
I. Preliminary Issues
Two preliminary issues must be resolved prior to reaching the substantive merits of defendants' motion: defendants' requests for judicial notice and plaintiff's arguments related to untimeliness and bias.
A. Judicial Notice
Defendants seek judicial notice of: (1) FERC License Surrender Order (dated November 17, 2022); (2) FERC License Amendment Order (dated March 15, 2018); (3) FERC License Transfer Order (dated June 17, 2021); (4) Acceptance of License Transfer (dated December 1, 2022); (5) FERC Docket Number P-14803, Application for Amendment and Transfer of License for Major Project of Klamath River Renewal Corporation (including all sub-dockets); (6) cover letter for the Lower Klamath Hydroelectric Project 2023 Annual Compliance Report; (7) cover letter for the January 2024 Monthly Construction Progress Report; (8) weekly construction log (dated May 20, 2024); (9) April 2024 Monthly Report for the Oregon Terrestrial and Wildlife Management Plan; (10) relevant excerpts of the December 2022 Reservoir Area Management Plan, excluding appendices; (11) relevant excerpts of the April 2024 Initial Monthly Report for the California Water Quality Monitoring Plan, excluding appendices; (12) April 2024 Monthly Report for the California Reservoir Drawdown and Diversion Plan; (13) Department of the Army Permit No. SPN-2003-279850 - i.e., defendants' Clean Water Act Section 404 permit; and (14) weekly construction log (dated June 17, 2024). Defs.' Request for Jud. Notice Exs. 1-11 (doc. 38); Defs.' Second Request for Jud. Notice Exs. 1-2 (doc. 61).
A court “may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). “[C]ourt filings and other matters of public record” are ordinarily considered appropriate subjects of judicial notice because they are “readily verifiable.” Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006). In addition, a court may take judicial notice of extrinsic documents that are undisputed and integral to the plaintiff's claims. Parrino v. FHP, Inc., 146 F.3d 699, 706 n.4 (9th Cir. 1998), superseded by statute on other grounds as recognized in Abrego v. The Dow Chem. Co., 443 F.3d 676, 681 (9th Cir. 2006).
In contrast, “certified public records [that] are not relevant” to the underlying dispute are not subject to judicial notice. Santa Monica Food Not Bombs v. Santa Monica, 450 F.3d 1022, 1025 n.2 (9th Cir. 2006); see also Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1001 (9th Cir. 2018) (declining to take judicial notice of a report where the “report alone, does not establish” the fact for which it was introduced).
The documents at issue here are all part of the public record and not subject to reasonable dispute, insofar as they are available on FERC's or the U.S. Department of Defense's official websites. See Coal. for a Sustainable Delta v. Fed. Emergency Mgmt. Agency, 812 F.Supp.2d 1089, 1093 (E.D. Cal. 2011) (“public record[s] downloaded from a public agency's official website . . . are subject to judicial notice under Federal Rule of Evidence 201”). Notably plaintiff relies on several of these documents in his complaint and various motions.
However, many of these documents do not appear relevant to the present dispute. In other words, defendants do not actually rely on many of these documents in their Rule 12(b)(1) motion, likely because they have little bearing on the Court's subject matter jurisdiction. See, e.g., Defs.' Second Request for Jud. Notice 2 (doc. 61). Accordingly, defendants' requests are granted in part, in that the Court takes judicial notice of the aforementioned documents to the extent they are relevant to the present motion (as addressed herein), and for limited purpose of proving their existence and content.
B. Untimeliness and Bias
Plaintiff repeatedly argues the Court's decision to allow briefing on defendants' Motion to Dismiss prior to resolving his Motion for Preliminary Injunction was improper. See, e.g., Pl.'s Mot. Vacate 3 (doc. 43); Pl.'s Third Resp. to Mot. Dismiss 4-6 (doc. 55). Likewise, he asserts the Court is “clearly bias[ed] to reject any filing of [his] within 24 hours” and “because a running total of rulings was requested.” Pl.'s Third Resp. to Mot. Dismiss 4 (doc. 55).
The Court has inherent authority “to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 255 (1936). Although plaintiff maintains “the last time for defendants to file any motion to dismiss or for jurisdiction was the 28th of May,” he does not adequately explain how or when service was effectuated to render that the dispositive date. Pl.'s Third Resp. to Mot. Dismiss 10 (doc. 55). The docket reflects that defendants were not served until June 5, 2024, making June 26 the deadline for responding to the Complaint. In any event, defendants sought leave from the Court well in advance of May 28 to file their Motion to Dismiss. As such, plaintiff's assertion that defendants' Motion to Dismiss is improper or untimely is not born out by the Federal or Local Rules of Civil Procedure, or the record before the Court.
Moreover, plaintiff's contentions of bias are essentially complaints about the Court's prior rulings. But “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion . . . and can only in the rarest circumstances evidence the degree of favoritism or antagonism required . . . when no extrajudicial source is involved.” Liteky v. United States, 510 U.S. 540, 555 (1994) (internal citation omitted). And here the Court's prior rulings do not show any reliance on an extrajudicial source, nor do they reveal a sufficiently high degree of favoritism or antagonism to make fair judgment impossible. Indeed, the Court has timely ruled on several plaintiff's motions and only indicated it would not consider additional filings regarding redundant requests for relief. If plaintiff disagrees with these rulings, the more appropriate course of action is to file objections, as detailed below, or a subsequent appeal.
II. Federal Power Act
The FPA contains a judicial review provision which vests federal Courts of Appeals with exclusive jurisdiction to affirm, modify, or set aside a FERC order. 16 U.S.C. § 825l(b). That is, § 825l(b) provides:
Any party to a proceeding under this chapter aggrieved by an order issued by [FERC] may obtain a review of such order in the United States Court of Appeals for any circuit wherein the licensee or public utility to which the order relates is located or has its principal place of business, or in the United States Court of Appeals for the District of Columbia, by filing in such court, within sixty days after the [FERC order] upon the application for rehearing, a written petition praying that the [FERC order] be modified or set aside in whole or in part . . . Upon the filing of such petition such court shall have jurisdiction, which upon the filing of the record with it shall be exclusive, to affirm, modify, or set aside such order in whole or in part.Id.
The Supreme Court has elucidated that, “in enacting § 825l(b), Congress prescribed the specific, complete and exclusive mode for judicial review of [FERC's] orders.” Otwell v. Alabama Power Co., 747 F.3d 1275, 1281 (11th Cir. 2014) (citation and internal quotations omitted). This statutory provision “necessarily precludes de novo litigation between the parties of all issues inhering in the controversy, and all other modes of judicial review, and requires that “all objections to the order, to the license it directs to be issued, and to the legal competence of the licensee to execute its terms, must be made in the Court of Appeals or not at all.” Id. (citation and internal quotations and brackets omitted).
Courts have thus found direct or collateral attacks on FERC orders precluded by 16 U.S.C. § 825l(b). Id. Stated differently, claims seeking actions that were rejected by a FERC order are impermissible in federal district court. Id. at 1282 (collecting cases); see also Idaho Rivers United v. Foss, 373 F.Supp.2d 1158, 1160-61 (D. Idaho 2005) (dismissing the plaintiffs' claims premised on agency decisions that were incorporated into FERC licenses in light of 16 U.S.C. § 825l(b)); Maine Council of the Atl. Salmon Fed'n v. Nat'l Marine Fisheries Serv., 858 F.3d 690, 693-94 (1st Cir. 2017) (district court lacked subject matter jurisdiction to hear the plaintiffs' challenge to Endangered Species Act biological opinions regarding impacts of hydroelectric dams on endangered salmon that were relied on by the underlying FERC order); Linthicum, 2023 WL 5275491 at *5 (under § 825l(b), the Court of Appeals was the proper forum for a suit to enjoin removal of the Klamath River dams).
Therefore, “non-parties to the proceedings before the FERC may not contest the agency's final decision in an alternative forum by bringing challenges that are inescapably intertwined with a review of the agency's final determination.” Otwell, 747 F.3d at 1282. As a result, this Court lacks subject matter jurisdiction in relation to plaintiff's challenges to the lawfulness of defendants' actions (or the science underlying them) because they are inherently reliant on and interlaced with the underlying FERC orders.
Further, there is no indication that plaintiff was a party to the FERC proceedings, suggesting that he cannot challenge the Surrender Order in this or any other court. See, e.g., Linthicum, 2023 WL 5275491 at *5; see also DiLaura v. Power Auth. of N.Y., 982 F.2d 73, 79 (2d Cir. 1992) (“[i]n enacting the FPA, Congress established a system for dealing with complaints to FERC and created a special procedure to review FERC's action or inaction . . . the complainant must first appeal the FERC action to the full commission, and then request a rehearing . . . [only] after exhausting all administrative remedies, may the complainant seek judicial review” under 16 U.S.C. § 825l ”) (citations omitted).
And, to the extent plaintiff argues that the Surrender Order has been violated, defendants are correct that he does not adequately specify how.In reviewing plaintiff's myriad filings, the Court can discern of no way in which defendants' actions have breached a FERC order, except to the extent that plaintiff generally alleges defendants should have chosen a different course of conduct - namely, dredging. See Pl.'s Memo. 14-17 (doc. 46) (“D2 and D3 [were] not following the FERC document, with 25 items which were technical nonsense . . . clearly this dam just needed dredging to keep the fish ladder (fishway) in good operating order”).
Defendants argue at length that “this Court also lacks jurisdiction” in regard to any claim related to “violations of the Surrender Order under 16 U.S.C. § 825p [because this section] does not provide a private cause of action against FERC licensees in district court nor does it allow plaintiffs to circumvent the process for judicial review under section 8251.” Defs.' Mot. Dismiss 12-14 (doc. 37). However, this District appeared to accept that a private individual's claim alleging the violation of a FERC order “would fall within the bounds of § 825p.” Linthicum, 2023 WL 5275491 at *5 (citation omitted). Ultimately, the Court need not resolve this issue as plaintiff has not, in fact, identified any actionable violation of the Surrender Order. Notably, plaintiff does not squarely address defendants' FPA arguments. See Justice, 117 F.Supp.3d at 1134 (“if a party fails to counter an argument that the opposing party makes . . . the court may treat that argument as conceded”). And his contentions surrounding defendants' failure to obtain a Section 404 permit are squarely contradicted by the publicly available record. Houlihan Decl. Ex. 1 (doc. 60-1).
As a result, plaintiff's “is precisely the sort of challenge that must be litigated before a circuit court of appeals pursuant to § 825l .” Linthicum, 2023 WL 5275491 at *5; see also Cal.Save Our Streams Council, Inc. v. Yeutter, 887 F.2d 908, 912 (9th Cir. 1989) (rejecting the plaintiff's contention that it was not attacking FERC's actions, but rather was only seeking review of the U.S. Forest Service's actions, where “the practical effect of the [district court complaint] is an assault on an important ingredient of the FERC license”); DiLaura, 982 F.2d at 79 (describing the plaintiff's framing of the complaint as an attempt to enforce an agency duty as a “facile” maneuver designed to avoid the FPA's administrative exhaustion requirements).
III. Standing
The “irreducible constitutional minimum” of Article III standing requires the party invoking the court's jurisdiction to demonstrate they suffered an “injury in fact” that is concrete and particularized, “fairly traceable to the challenged action of the defendant,” and “likely [to] be redressed by a favorable decision.” Lujan, 504 U.S. at 560-61 (citations and internal quotations omitted).
For an injury to be concrete and particularized, it must “actually exist” and “affect the plaintiff in a personal and individual way,” respectively. Spokeo, Inc. v. Robins, 578 U.S. 330, 339-40 (2016) (citations and internal quotations omitted). As such, a “free-floating assertion of a procedural violation, without a concrete link to the interest protected by the procedural rules, does not constitute an injury in fact.” Nuclear Info. & Res. Serv. v. Nuclear Regul. Comm'n, 457 F.3d 941, 952 (9th Cir. 2006) (citation and internal quotations omitted).
Plaintiff asserts that defendants' actions will result in a laundry list of harms: the “loss of critically needed hydro-electric power for Oregon and California,” “destruction of downstream property due to sediment,” “flooding,” “potential arsenic poisoning,” and the “loss of fish and animal life.” Compl. pgs. 4, 11, 23-24 (doc. 1).
Initially, plaintiff's contention that he “will affected by soon [by] rolling blackout[s]” due to the loss of hydroelectric power generated by the dams is speculative given that plaintiff resides is Portland and is planning on leaving Oregon altogether soon. Pl.'s Am. Surreply to Mot. Set Br. Schedule 12-13 (doc. 42); see also Pl.'s Second Resp. to Mot. Dismiss 18 (doc. 53) (plaintiff is “selling his home, and moving out of state, with the sale likely to close soon”).
Relatedly, plaintiff's refences to being a “a long time Oregonian who grew up near Klamath Falls” and “hunted, camped and fished” is insufficient to confer standing since he does not express a present intent to return to that area. Pl.'s Am. Surreply to Mot. Set Br. Schedule 12-13 (doc. 42); see also Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1178 (9th Cir. 2011) (“a vague desire to visit locations that might be harmed by the challenged [action is] insufficient to establish a particularized interest”) (citation and internal quotations omitted); Wilderness Soc'y, Inc. v. Rey, 622 F.3d 1251, 1256 (9th Cir. 2010) (a “‘some day' general intention to return to the [area at issue] is too vague to confer standing”) (citation and internal quotations omitted).
In his most recent filing, plaintiff asserts he “has standing by virtue of being denied his lawful use of public property, i.e. the recreation on the river, which he visited often over many years. Also, future recreation on the river is destroyed by Defendants' criminal actions.” Pl.'s Mot. to Am. 5-6 (doc. 62). Although plaintiff includes a declaration in support of this filing, like his other briefs, motions, and allegations, it does not express a present intent to return to the Klamath River or any surrounding area. Cf.Carrillo-Gonzalez v. Immigr. &. Naturalization Serv., 353 F.3d 1077, 1079 (9th Cir. 2003) (allegations and arguments “not constitute evidence”).
The remaining harms appear to effect individuals that are non-parties to this suit. In other words, the alleged harms do not inhere to plaintiff personally. See Pl.'s Mot. Vacate 6 (doc. 43) (defendants' actions have caused “the loss of real estate value suffered by residents of Klamath Basin”); Pl.'s Memo. 4 (doc. 46) (harmed parties include “those with lake front property, Klamath River Water Users and others”); Pl.'s Mot. Add Second Pl. 1-2 (doc. 50) (Mr. Intisois “a resident of Siskiyou County California [and] has experienced direct harm . . . from dam removal”); Pl.'s Second Resp. to Mot. Dismiss 18-20, 34 (doc. 53) (harmed parties include “senior retirees in the retirement villages on the former Copco recreational reservoirs” who will experience the “dramatic loss of real property” and Mr. Intiso, “who lives six miles from the Iron Gate dam and will be directly affected by yearly flooding if the Iron-Gate dam is removed”).
As defendants accurately observe, Mr. Intiso was “involve[d] as a plaintiff in a similar case” -i.e., Linthicum - “on the same issues presented in Plaintiff's Complaint.” Defs.' Reply to Mot. Dismiss 8 n.4 (doc. 59).
As the Court previously explained, plaintiff cannot bring claims on behalf of other individuals or entities, especially where, as here, those parties have not indicated an intent to participate in this lawsuit. Order (June 10, 2024) (doc. 52); see also Martin v. Cal. Dep't of Veterans Affs., 560 F.3d 1042, 1050 (9th Cir. 2009) (“as a general rule, a third-party does not having standing to bring a claim asserting a violation of someone else's rights”) (citing Powers v. Ohio, 499 U.S. 400, 410 (1991)); Harris v. Evans, 20 F.3d 1118, 1122 (11th Cir. 1994) (outlining the requirements of third-party standing, including that the plaintiff have “a substantial relationship [with] the third party” and a “congruence of interests”). Indeed, there is no indication the other property owners or individuals that plaintiff references in his various filings are unable to act as their own advocates.
In sum, plaintiff does not allege that his home or property will be damaged, nor does he allege a personal reliance on hydro-electric power or any likelihood of flooding, arsenic poisoning, or damage to fish and animal life in his geographical area or an area that he has a present intent to visit. See Lujan, 504 U.S. at 562-63 (threat to a listed species is not alone sufficient; the plaintiffs must also provide affidavits or evidence “showing, through specific facts” that one of them would be “directly affected apart from their special interest in the subject”) (citation and internal quotations and brackets omitted); see also Nw. Env't Def. Ctr. v. Bonneville Power Admin., 117 F.3d 1520, 1528-29 (9th Cir. 1997) (injury “too speculative” to confer standing where the plaintiffs “submit[ted] no evidence” to show that fish populations would actually be injured by the defendant's actions). Furthermore, the purported injuries identified by plaintiff are not redressable by a favorable decision to the extent this Court lacks jurisdiction under the FPA.
Finally, plaintiff, as a private citizen, does not have standing to bring criminal charges. Cf. Schwettmann v. Starns, 2023 WL 8284064, *2 (E.D. Cal. Nov. 30, 2023) (“[a] citizen does not have authority to bring criminal charges, either under state or federal law”); see also Wormley v. Hemphill, 2021 WL 11670848, *2 (D. C. Mar. 22, 2021) (dismissing the pro se plaintiff's claims brought “pursuant to various sections of Chapter 18 of the U.S. Code [because] none of those criminal statutes includes an express private right of action”).
RECOMMENDATION
For the foregoing reasons, defendants' Motion to Dismiss (doc. 37) should be granted. Defendants' Requests for Judicial Notice (docs. 38, 61) should be granted in part as stated herein, and all other pending motions (including docs. 5, 31-32, 40-43, 45-46, 50-51, 53-55, 62) should be denied as moot for lack of subject matter jurisdiction. Plaintiff's request for oral argument is denied as unnecessary.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgement or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of the party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of the fact in an order or judgement entered pursuant to this recommendation.