White v. United States Army Corps of Engineers

Background

Sean K White brought a citizen lawsuit under the Endangered Species Act, alleging that the defendants failed to comply with required protections for listed salmon species affected by flood-control operations at Coyote Valley Dam. The complaint alleged violations of Section 7, which requires federal agencies to consult with the appropriate wildlife agency before taking actions that may affect protected species, and Section 9, which generally prohibits the unauthorized taking of endangered species. White also alleged a violation of the Administrative Procedure Act.

The National Marine Fisheries Service issued a 2008 biological opinion concerning the dam’s effects on three listed salmonid species and issued an incidental take statement. That statement provided protection from the Endangered Species Act’s take prohibition only if the Army Corps followed specified measures. White alleged that the Army Corps failed to comply with most of the measures addressing turbidity, including monitoring, reporting, analysis, and efforts to minimize harm.

White sought declaratory and injunctive relief, including an order requiring renewed formal consultation and an order requiring compliance with the turbidity-related measures. The defendants represented that the Army Corps and the National Marine Fisheries Service had restarted formal consultation in February 2023. They moved to dismiss the case under Federal Rule of Civil Procedure 12(b)(1), arguing that the case was no longer useful because consultation had restarted. Alternatively, they asked the court to pause the case until consultation was complete.

Motion to Dismiss

The court denied the motion to dismiss. Rule 12(b)(1) challenges the court’s power to hear a case. The court explained that the dispute remained live because the defendants had not shown that White was—or would soon be—unable to obtain effective relief.

The court rejected the defendants’ argument that restarting consultation made the case “prudentially moot,” meaning that changed circumstances supposedly made further litigation unnecessary even though a live controversy technically remained. The court noted that consultation was expected to produce a new biological opinion and possibly a new incidental take statement, but the timing and result were uncertain. The previous consultation had lasted four years, and the current consultation was expected to be complex.

The court concluded that White could still obtain an injunction preserving the status quo or limiting certain dam operations while consultation was pending. The fact that a future injunction might ultimately prove unnecessary or conflict with another agency duty did not make the current claims moot. The court also concluded that White’s Section 9 claim remained live because the complaint alleged facts supporting a possible unlawful taking before consultation was complete.

The defendants separately argued that White had not satisfied the Endangered Species Act’s sixty-day notice requirement for the requested injunctions. The court rejected that argument. It found that White’s notice identified the alleged turbid-water releases, the failure to comply with the relevant measure, the resulting alleged unauthorized taking of salmonids, the period of the alleged violations, and his intent to seek declaratory and injunctive relief. The court held that the statute required notice of the alleged violation, not every specific remedy later requested.

Motion to Stay

The court also denied the alternative request to stay, or pause, the litigation until consultation ended. In deciding whether to grant a stay, the court weighed possible hardship and whether a pause would promote efficient use of judicial resources.

White alleged that continued dam operations could cause ongoing harm without a definite end date. The defendants relied on the burdens of continuing the litigation. The court held that the ordinary burden of defending a lawsuit was not enough to establish the hardship required for a stay. On balance, the court declined to pause the case.

Disposition

The court denied the defendants’ motion to dismiss or, alternatively, stay the case. It scheduled an initial case-management conference for March 30, 2023, and stated that the order disposed of Docket Number 15. The order did not decide whether the defendants ultimately violated the Endangered Species Act; it decided only that the claims remained live and that the case should proceed rather than be dismissed or paused.