United States District Court, D. Arizona
ORDER
Douglas L. Rayes United States District Judge
Before
the Court is Defendant United States Army Corps of
Engineer's (“Corps”) motion to dismiss for
lack of subject matter jurisdiction (Doc. 29), which is fully
briefed. Plaintiff Central Arizona Water Conservation
District (“District”) requested oral argument,
but after reviewing the parties' briefing and the record,
the Court finds oral argument unnecessary. See Fed.
R. Civ. P. 78(b); LRCiv. 7.2(f). For the reasons stated
below, the Corps' motion is granted.
I.
Background
The
Alamo Dam (“Dam”) is owned, operated, and
maintained by the Corps. The Dam is located between Alamo
Lake and the Bill Williams River. Thirty-nine miles
downstream from the Dam, the mouth of the Bill Williams River
empties into Lake Havasu. The District owns and operates the
Mark Wilmer Pumping Plant (“Pumping Plant”), a
water intake and pumping plant, in Lake Havasu.
In late
2017, the Corps announced plans to conduct a flushing-flow
release from the Dam for mid-March 2018 to decrease water
levels in Alamo Lake and allow for maintenance work on the
Dam. (Docs. 7-1 ¶ 36; Docs. 17 ¶¶ 27-28.) More
specifically, the release's objective was twofold: (1)
removal of accumulated sediment from the Dam's sill to
ensure all structures were visible by the dive inspection
team, and (2) lowering the water surface elevation to reduce
the depth of the required dive and increase diver safety.
(Doc. 7-4 at 6.) In early 2018, the Corps issued a draft
Environmental Assessment (“EA”) for its proposed
release, to which the District submitted comments. On March
2, 2018, the Corps issued an EA and a Finding of No.
Significant Impact (“FONSI”) for the Alamo Dam
Flushing Release (“Release”). As proposed, the
Release was scheduled to last 19 days, starting at 8:00 a.m.
on March 12, 2018.
On
March 6, 2018, the District filed a complaint alleging
violations of the National Environmental Policy Act
(“NEPA”). Concurrent with the complaint, the
District moved for a temporary restraining order
(“TRO”) enjoining the Corps from initiating the
scheduled release, arguing that the Corps violated NEPA in
narrowly defining the project area, failing to consider
reasonable alternatives to the Release, and in failing to
prepare an Environmental Impact Statement
(“EIS”). (Doc. 1 ¶¶ 94-125.) The
District alleged that the Release would increase turbidity
downstream, causing “long-lasting adverse
impacts” on its Pumping Plant and to its water
users.[1] (Doc. 7 at 20.) After holding a hearing on
the TRO, the Court orally denied the District's motion,
finding that the District failed to meet its burden of
showing irreparable harm if the Release
proceeded.[2] (Doc. 22.) The District did not appeal
this order.
Prior
to the commencement of the Release, the District issued a
statement to its “water users” that it intended
to “cease pumping at Lake Havasu in an effort to avoid
pumping any initial turbidity spike from Lake Havasu.”
(Doc. 29-5 at 2.) As scheduled, on March 12, 2018, the Corps
commenced the Release. (Doc. 29-7 ¶ 6.) During the
Release, the flow reached peak velocity of just under 5, 000
cubic feet per second (“cfs”) on the evening of
March 14, and tapered off to approximately 500 cfs 24 hours
later. (Docs. 7-4 at 31-33; 29-4.) The Release was completed
on March 29, 2018, and the flow returned to the base level
rate of 25 cfs. (Docs 29-4; 29-7 ¶ 8.)
The
District monitored turbidity levels throughout Lake Havasu
during the Release, including at the Pumping Plant's
intake. (Doc. 29-6.) According to the District's data,
turbidity at the intake never exceeded 15 NTUs, well below
the District's self-proclaimed “operational
threshold” of 20 NTUs.[3] (Id.; Doc. 7-3 at 24.)
Even though the turbidity level never reached the
“operational threshold, ” the District decided to
reduce pumping at the Pumping Plant late in the afternoon on
March 16, completely curtail pumping on March 17, remain at
no flow until March 21, and resume full pumping on March 25.
(Doc. 30-1 ¶ 10.)
Presently
before the Court is the Corps' motion to dismiss for lack
of subject-matter jurisdiction, which argues that the
District's claims are moot because the Release has been
completed.
II.
Legal Standard
The
Court must dismiss an action if, at any time, it determines
that it lacks subject-matter jurisdiction. Fed.R.Civ.P.
12(h)(3). Mootness “pertain[s] to a federal court's
subject-matter jurisdiction under Article III, [and is]
properly raised in a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(1).” White v. Lee, 227
F.3d 1214, 1242 (9th Cir. 2000). A moot case is one which has
“lost its character as a present, live
controversy.” Hall v. Beals, 396 U.S. 45, 48
(1969). In the context of a NEPA claim, “the question
is not whether the precise relief sought at the time the
application for an injunction was filed is still available.
The question is whether there can be any effective
relief.” Nw. Envtl. Def. Ctr. v. Gordon, 849
F.2d 1241, 1244-45 (9th Cir. 1988) (internal quotation and
citation omitted). The burden of demonstrating mootness in
NEPA cases is a “heavy one” and is born by the
party claiming the case is moot. See, e.g.,
Cantrell v. City of Long Beach, 241 F.3d 674, 678
(9th Cir. 2001).
III.
Discussion
A.
The District's Claim is Moot
NEPA
and its implementing regulations require federal agencies to
file an EIS before undertaking “major Federal actions
significantly affecting the quality of the human
environment.” 42 USC § 4332(C). An agency that
believes its action is not a “major Federal action,
” and therefore does not require the preparation of a
full EIS, may prepare a more limited environmental review, or
EA, to determine whether the full EIS is necessary. 40 CFR
§ 1501.4(b), (c). If the proposed action “will not
have a significant effect on the human environment, ”
the agency may issue a FONSI and need not complete an EIS. 40
CFR § 1508.13. NEPA is purely a procedural statute:
“[it] does not mandate particular results but simply
provides the necessary process to ensure ...