TABLE OF CONTENTS

Summary of Argument..... 4

Argument..... 8

I. PLAINTIFFS SHOULD BE REQUIRED TO IDENTIFY THE PARTICULAR

        FINAL AGENCY ACTION(S) ABOUT WHICH THEY COMPLAIN 8

II.     THE COURT SHOULD STRIKE THE DECLARATIONS OF DALE

        MCCULLOCH AND DAVID WEGNER FROM THE RECORD, AS THEY

        DO NOT AND CANNOT CONSTITUTE PART OF THE ADMINISTRATIVE RECORD IN THIS ACTION.. 10

III.   THE COURT SHOULD GRANT SUMMARY JUDGMENT DISMISSING PLAINTIFFS’ COMPLAINT FOR FAILURE TO PROVE STANDING TO SUE 12

A. Plaintiffs Fail To Demonstrate “Injury in Fact” 13

B. Declines in Salmon Populations Are Not “Fairly Traceable” to Water Quality Problems from Discretionary Decisions of the U.S. Army Corps of Engineers 16

1. Plaintiffs Present No Competent Evidence that Operational or Management

    Decisions of the Corps Increase Snake River Water Temperatures. 17

2. Plaintiffs present no competent evidence that operational or management

    decisions of the Corps increase total dissolved gas to the detriment of salmon. 20

C.     Plaintiffs Do Not and Cannot Demonstrate that their Purported Injuries Can Be Redressed by an Order of this Court. 22

1. Temperature and total dissolved gas variance arise in part because of the conduct of third parties not before the Court 23

2. An abstract and general interest in Clean Water Act enforcement cannot substitute for redressability. 24

3. The possibility of Congressional authorization and appropriation for dam removal or other structural modifications to dams cannot provide redressability. 26

IV. SECTION 313 OF THE CLEAN WATER ACT, 33 U.S.C. § 1323, DOES NOT BRING THE CORPS’ OPERATION OF THE DAMS WITHIN THE PURVIEW OF THE WASHINGTON STATE STANDARDS... 27

V.    THIS ACTION SHOULD BE DISMISSED ON RES JUDICATA GROUNDS 30

Conclusion. 31

TABLE OF AUTHORITIES

Cases

American Rivers v. FERC, 170 F.3d 896 (9^th Cir. 1999).... 24

Camp v. Pitts, 411 U.S. 138 (1973) 5

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)... 27

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)... 10

Lujan v. Defenders of Wildlife, 112 S. Ct. 2130 (1992)....... 12, 25

Lujan v. National Wildlife Federation, 497 U.S. 871, 891-94, 110 S. Ct. 3177 (1990) 5, 10

National Wildlife Federation v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982) 29

Oregon Natural Desert Ass’n v. Dombeck, 172 F.3d 1092, 1098 (9^th Cir. 1998).... 29

Southwest Center for Biological Diversity v. United States Forest Service,

... 100 F.3d 1443 (9th Cir. 1996)....... 11, 12

Starbuck v. San Francisco,  556 F.2d 450 (9th Cir. 1977).... 15

Steel Company v. Citizens for a Better Environment, 118 S. Ct. 1003, 1019 (1998)... 22, 25

United States v. Schimmels, 127 F.3d 875 (9th Cir. 1997).... 30

Virginia Surety Co. v. Northrop Grumman Corp., 144 F.3d 1243, 1247 (9^th Cir. 1998) 30

Statutes

16 U.S.C. § 832a(a). 23

16 U.S.C. § 839f(e)(5)............. 23

33 U.S.C. § 1314(f)(2)(F) 7, 29, 30

33 U.S.C. § 1323 (a)............. 28

33 U.S.C. § 1342.. 28, 29

33 U.S.C. § 1362(19)............. 29

33 U.S.C. § 1362(6) 28

467 U.S. at 843....... 27

5 U.S.C. § 706(1) 5, 6

5 U.S.C. § 706(2).. 5

Rules

Fed. R Civ. P 12(e)..... 10

Fed. R Civ. P 16......... 10

Fed. R Civ. P 56(f).. 7, 30, 31

James L. Buchal, OSB #92161

Paul M. Murphy, OSB #84125

MURPHY & BUCHAL LLP

1500 SW First Avenue, Suite 1135

Portland, OR 97201

503-227-1011

503-227-1034

Attorneys for Intervenor-Defendant Columbia River Alliance

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

Summary of Argument

What the plaintiffs really want is to remove the four Lower Snake Dams (hereafter, “the Dams”).  One plaintiff frankly admitted his belief that no operational changes “would have made any difference, really, in the survival of the fish” (Crouse Dep. 8:  BDX[1] 3, at 3), and acknowledged that removal of the Dams was the goal:

“Q:            I’m trying to find out precisely what your organizations are trying to achieve by filing this lawsuit.  And you’ve told me that one of the things they want to achieve is dam removal, and I’m asking is there anything short of that?

“A:            Not that I know of.”  (Crouse Dep. 24; BDX 3, at 5)

Plaintiffs would cast the Court in the role of rendering abstract opinions on dams, water and salmon, untethered to agency decisions or the administrative record supporting those decisions, for the purpose of manipulating public opinion in favor of dam removal.  Some plaintiffs are quite outspoken about this goal. (Baker Dep. 44-45; BDX 4, at 27-28).  But the jurisdiction of this Court arises under the Administrative Procedure Act (APA), and that jurisdiction does not extend to involvement in political affrays. As the Supreme Court has explained, under the APA, plaintiffs "cannot seek wholesale improvement . . . by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made . . .”  Lujan v. National Wildlife Federation, 497 U.S. 871, 891-94, 110 S. Ct. 3177, 3190-91 (1990). 

Plaintiffs plead two claims under the APA:  their first claim (Complaint ¶¶ 42-55) challenges final agency action pursuant to 5 U.S.C. § 706(2), and their second (Complaint ¶¶ 56-57) seeks to “compel agency action unlawfully withheld or unreasonably delayed” pursuant to 5 U.S.C. § 706(1).  The first claim seeks review of three specific agency documents (Complaint ¶¶ 51-53) plus unspecified “operational and management decisions” (id. ¶ 54).  CRA joins in the Justice Department’s argument (Dft. Mem. 29-30) that this Court’s jurisdiction to review these decisions requires their lawfulness to be assessed in the context of the administrative record prepared by the Corps.  See also Camp v. Pitts, 411 U.S. 138, 142 (1973).  CRA expands upon the Justice Department’s position by moving to make plaintiff’s Complaint more definite and certain with respect to precisely what decisions plaintiffs do challenge.  (Point I, infra)   Discovery cannot provide the requisite particularity because plaintiffs claim, in substance, “we challenge everything”.  CRA also expands upon the Justice Department’s position by moving to strike plaintiffs’ declarations from the record, as they may not properly be considered by the Court in evaluating the lawfulness of the Corps’ decisions.  (Point II, infra)

As for the second claim, CRA joins in the Justice Department’s position (Dft. Mem. 27-28) that plaintiffs have not pleaded “agency action unlawfully withheld” within the meaning of 5 U.S.C. § 706(1).  Plaintiffs cannot and do not identify any particular operation the Corps can take to cool or de-gas the Snake River with the Dams in place.  Their suggestion that the Corps might petition Congress for funds to remove or structurally modify the Dams does not state a claim under § 706(1).  A federal agency’s failure or even refusal to seek Congressional appropriations cannot constitute “agency action unlawfully withheld”, for the Court can only order agencies to do that which is already within their statutory authority.

These technical defects in plaintiffs’ pleading are but a reflection of the most fundamental problem:  plaintiffs lack standing to sue.  They lack standing for three reasons.  First, they have not suffered “injury in fact”, in that their injuries arising from water quality are entirely conjectural.  Second, they offer no evidence that any particular operational decision of the Corps—as opposed to decisions to build the Dams decades ago—have caused them any injury.  Third, they offer no evidence that the fundamental injury—declines in salmon and steelhead populations—may be redressed by an order of the Court.  Thus CRA joins defendant’s motion for summary judgment on standing grounds.

CRA also joins in the Corps’ motion to dismiss the complaint as res judicata, at least with respect to the only two final agency actions specifically pleaded:  the 1995 Record of Decision (ROD) and the 1998 ROD.  (The 1998 Water Management Plan simply implements the 1998 ROD, and does not represent “final agency action” for purposes of the APA.)  In the alternative, should the Court determine that a further factual record is required in order to ascertain the scope of claim preclusion, CRA would suggest that a ruling on plaintiffs’ motion for summary judgment be deferred until such time as discovery is complete.  (See Buchal Decl. ¶ 19)

CRA also joins in the motions of the Corps, Potlatch Corp., and Northwest Pulp and Paper Association (NWPPA) for summary judgment because there is no statutory cause of action available to plaintiffs in these circumstances, and refers the Court to the Potlatch/NWPPA memorandum for briefing.  CRA argues further that § 313 of the Clean Water Act, 33 U.S.C. § 1323, should not be construed to cover the Dams at all, because the Dams do not discharge “pollutants” as that term is carefully defined in the Act (and then employed in § 1323).  No member of Congress voting for the Clean Water Act could conceive that it could be interpreted to mandate the dismantling of decades of development of clean, renewable hydropower in the Columbia River Basin.  To the contrary, in the Clean Water Act, Congress expressly adopted a voluntary, informational approach for water quality “changes caused by the construction of dams”.  33 U.S.C. § 1314(f)(2)(F).

If, despite these daunting problems with jurisdiction, the Court is disposed to deny the defendant and intervenor-defendants’ motions for summary judgment and consider the merits of plaintiffs’ motion for summary judgment, CRA asks that the motion either be denied on the ground that genuine issues of material fact bar summary judgment, or a continuance be granted, pursuant to Rule 56(f), to allow defendant-intervenors time to complete discovery.  As set forth in the accompanying declaration of counsel, unless and until the relevant administrative record is produced by the Justice Department (after plaintiffs have identified the decisions for which a record is required), all parties will be unable to make whatever showing is required to obtain discovery to supplement that record.  (Buchal Decl. ¶ 19)

Argument

I.            PLAINTIFFS SHOULD BE REQUIRED TO IDENTIFY THE PARTICULAR FINAL AGENCY ACTION(S) ABOUT WHICH THEY COMPLAIN.

At the outset, plaintiffs’ claims would have the Court resolve the lawfulness of agency conduct based upon the blanket assertion that “the Corps’ operational and other management decisions for the dams violate the CWA because these actions are being carried out in ways that cause or contribute to violations of water quality standards".  (Complaint ¶ 54)  Unspecific allegations as to the effects of “actions”, “action in operating”, and “operations” by the Corps litter the pages of plaintiffs’ complaint.  (Complaint ¶¶ 2, 8, 10, 22, 41, 51-55, 57) 

In discovery, CRA sought to have plaintiffs identify just what decisions they were talking about.  The results confirm that plaintiffs are attempting to challenge the existence of the dams, rather than any particular operational decision, as was particularly evident during questioning of the designated representative from the National Wildlife Federation and Washington Wildlife Federation, Mr. Carl Crouse (Crouse Dep. 5; BDX 3, at 2):

“Q:            But sitting here today, can you identify for me any particular operational or management decisions that are—that your organizations are finding fault with?

“A:            No.

“Q:            Okay.

“A:            We just don’t like any of them.

“Q:            Well, when you say ‘any of them’, can you tell me any specific decisions you don’t like?

“A:            Any operational decision on how to run the Snake River dams will not serve the purpose of rehabilitating the salmon and steelhead runs in the river.

“Q:            So if I understand you correctly, the reason you’re saying you don’t like any of them is because all of them involve the dams sitting there and, in your view, killing fish; is that right?

“A:            That’s correct.” (Crouse Dep. 17; BDX 3, at 10)

Other plaintiffs thought that there were particular decisions, but could not identify them (Spain Dep. 30-37: BDX , at 13-20; Christensen Dep. 25-26:  BDX 1, at 11-12; see also id. at 15-19:  BDX 1, at 5-9), and others had particular, arcane decisions in mind (Baker Dep. 30-32, 36; BDX 4, at 19-21, 23). 

Plaintiffs would have the Court evaluate the lawfulness of “a wide variety of decisions over the last 25 years that the Corps has made” (Spain Dep. 32; BDX 2, at 15) “on a day-to-day, hour-to-hour, even minute-to-minute basis” (Baker Dep. 28; BDX 4, at 18).  This amorphous approach is inconsistent with the rules for judicial review of agency action.  Plaintiffs should be required to identify the specific decisions subject to challenge, so that the parties can weed out those which are moot (like a decision to release debris over the spillway at Lower Granite Dam three years ago (Baker Dep. 30-31; BDX 4, at 19-20)) and present the Court with a particularized dispute over which it might exercise jurisdiction (but for the other defects in plaintiffs’ case).

            As the Supreme Court has explained, plaintiffs

            "cannot seek wholesale improvement of this program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made.  Under the terms of the APA, [a plaintiff] must direct its attack against some particular 'agency action' that causes it harm.  Some statutes permit broad regulations to serve as the 'agency action,' and thus to be the subject of judicial review directly, even before the concrete effects normally required for APA review are felt.  Absent such a provision, however, a regulation is not ordinarily considered the type of agency action 'ripe' for judicial review under the APA until the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimants situation in a fashion that harms or threatens to harm him. . . .

"Except where Congress explicitly provides for our correction of the administrative process at a higher level of generality, we intervene in the administration of the laws only when, and to the extent that, a specific ‘final agency action’ has an actual or immediately threatened effect.  [Citation omitted.]  Such an intervention may ultimately have the effect of requiring a regulation, a series of regulations, or even a whole 'program' to be revised by the agency in order to avoid the unlawful result that the court discerns.  But it is assuredly not as swift or as immediately far-reaching a corrective process as those interested in systematic improvement would desire.  Until confided to us, however, more sweeping actions are for the other branches."  Lujan v. National Wildlife Federation, 497 U.S. 871, 891-94, 110 S. Ct. 3177, 3190-91 (1990).

In other words, sweeping questions of the effects of dams on water quality and salmon must be raised in the context of judicial review of “some concrete action”.

Thus, CRA moves, pursuant to Rules 12(e) and 16, for an order requiring plaintiffs to make their complaint more definite and certain insofar as it contains general references to “actions” and “operations” by the Corps, or suffer dismissal. 

II.        THE COURT SHOULD STRIKE THE DECLARATIONS OF DALE MCCULLOCH AND DAVID WEGNER FROM THE RECORD, AS THEY DO NOT AND CANNOT CONSTITUTE PART OF THE ADMINISTRATIVE RECORD IN THIS ACTION.

Judicial review of agency action requires the Court to review the administrative record before the agency at the time of the challenged decision, not an after-the-fact collage of facts assembled by litigants.  For example, in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419 (1971), the Supreme Court pointed out that

“The lower courts based their view on the litigation affidavits that were presented.  These affidavits were merely ‘post hoc’ rationalizations, which have traditionally been found to be an inadequate basis for review.  And they clearly do not constitute the ‘whole record’ compiled by the agency:  the basis for review required by § 706 of the Administrative Procedure Act.  Thus it is necessary for us to remand this case to the District Court for plenary review of the Secretary’s decision.  That review is to be based on the full administrative record that was before the Secretary at the time he made his decision.” (Id. at 419-20; citations and notes omitted))

In order to avoid similar error, this Court cannot consider the merits of plaintiffs’ claims unless and until the “whole record” is before the Court.

Fundamental precepts of administrative law also require that the Court not consider materials that could not have been part of the record.  In particular, the Corps’ documents dated March 10, 1995 (Boyles Decl. Ex. 6, at 22), June 24, 1998 (id. Ex. 7, at 14), and July 30, 1998 (id. Ex. 8, at 1) cannot possibly be arbitrary and capricious (assuming arguendo they constitute final actions) for failure to consider information first available, in preliminary form, in February 1999 (id. Ex. 13, at 1).  In simpler terms, the 1995 ROD, the 1998 ROD, and the 1998 Water Management Plan cannot possibly be faulted for failure to consider the results of a 1999 EPA computer model.

Thus CRA moves to strike the Declaration of Mr. David Wegner.  The Declaration of Mr. Wegner is based upon the 1999 EPA computer model, and has no relevance in assessing the lawfulness of Corps actions preceding the release of that model.  The proper remedy is to strike it from the record.  See, e.g., Southwest Center for Biological Diversity v. United States Forest Service, 100 F.3d 1443, 1450 (9^th Cir. 1996) (affirming District Court decision to strike such documents).

Nor can the Declaration of Dale McCulloch be considered.  That Declaration generally summarizes scientific evidence, albeit in a highly-biased way, on the effects of water temperature and total dissolved gas on salmon.  But the Corps has already considered such information, and it is already in the administrative record.  For example, the 1995 Biological Opinion adopted by the Corps in its 1995 contains substantial information on the effects of temperature on salmon (See, e.g., Boyles Decl. Ex. 1, at 48-49 (identifying effects of dissolved gas); 54 (identifying effects of temperature); 107-08 (gas); 165 (temperature)).  When and if a full administrative record is produced by defendant, CRA is confident that it will contain additional information on these subjects.

In short, plaintiffs’ Declarations, on their faces, do not and cannot meet the requisite showing to supplement the administrative record; additional documents can be submitted only: 

“(1) if necessary to determine ‘whether the agency has considered all relevant factors and has explained its decision,’ (2) ‘when the agency has relied on documents not in the record,’ or (3) ‘when supplementing the record is necessary to explain technical terms or complex subject matter.’” Southwest Center, 100 F.3d at 1450 (citations omitted).

Plaintiffs should have moved for leave to supplement the record before filing their Declarations.  Under the circumstances, their Declarations should be stricken from the record without prejudice; when and if plaintiffs can make a showing that their Declarations are necessary, they can move for leave to file them.

III.       THE COURT SHOULD GRANT SUMMARY JUDGMENT DISMISSING PLAINTIFFS’ COMPLAINT FOR FAILURE TO PROVE STANDING TO SUE.

            In Lujan v. Defenders of Wildlife, 112 S. Ct. 2130 (1992), the Supreme Court addressed the showing plaintiffs suing under environmental laws must make to demonstrate standing to sue:

“Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements:  First, the plaintiff must have suffered an ‘injury in fact’—an invasion of a legally-protected interest which is (a) concrete and particularized and (b) ‘actual or imminent, not “conjectural” or hypothetical’.  Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be ‘fairly trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.’  Third, it must be ‘likely’, as opposed to merely ‘speculative’, that the injury will be ‘redressed by a favorable decision’.” 

“The party invoking federal jurisdiction bears the burden of establishing these elements.”  Id. at 2136 (citations omitted).

CRA will assume for purposes of this motion that declining salmon and steelhead populations in the Snake River Basin threaten a “legally protected interest” of plaintiffs.  But plaintiffs fail to demonstrate every other required element of standing.

            First, plaintiffs fail to demonstrate “injury in fact”, in that their injury is neither “concrete and particularized” nor “‘actual or imminent, not “conjectural” or hypothetical’.”  While the decline of Snake River salmon is actual—and “nearly 95% in the total reduction in estimated historic abundance occurred prior to the mid-1900s” (Boyles Decl. Ex. 1, at 3-4)—injury associated with high temperatures and total dissolved gas on the Snake River is entirely conjectural and hypothetical.

            Second, plaintiffs fail to demonstrated that their injuries are “fairly traceable” to the operational decisions of the U.S. Army Corps of Engineers.  Plaintiffs present no evidence whatsoever as to the fraction of salmon mortality caused by deviances from water quality standards, much less the mortality caused by deviances “caused” in any sense by the Corps.

Third, plaintiffs fail to demonstrate redressability.  There are no operational decisions that can improve water temperatures in the Snake, which even before construction of the Dams were always been too high for salmon in the late summer.  The only operational decision that could reduce total dissolved gas—reducing spill—is not done because National Marine Fisheries Service has determined (in decisions elsewhere endorsed by plaintiffs) that more spill is better on balance for fish.  In short, it is not within the power of the Corps to make the Snake River colder or bearing less total dissolved gas, and no order of this Court can do so either.

A.            Plaintiffs Fail To Demonstrate “Injury in Fact”.

            All human-caused mortality represents but a tiny fraction of the mortality experienced by Snake River salmon throughout their life cycle.  Chinook salmon, for example, have roughly 4,000 eggs.  (See Baker Dep. 10; BDX 4, at 6)  On average, 3,998 of those eggs will fail to survive into adults that return to spawn in their natal stream.  (Id. at 10-11; BDX 4, at 6-7)  Of all this mortality, no one is sure what percentage is caused by human effects—plaintiffs suggest perhaps 10%.  (Id. at 12-13; BDX 4, at 8-9)

Plaintiffs generally acknowledge that ocean conditions, increases in predatory bird populations, increases in marine mammal populations, increases in competing species (e.g., shad), continuing salmon harvest,[2] all sorts of activities associated with development of the Columbia River Basin (e.g., logging, mining, roadbuilding), and even global warming all are factors implicated in the decline of Snake River salmon and steelhead populations.  (Baker Dep. 9, 13-17:  BDX 4, at 5, 9-13; Christensen Dep. 14-1:  BDX 1, at 4-5; Spain Dep. 13-14:  BDX 2, at 3-4; Crouse Dep. 8-14:  BDX 3, at 3-9)[3]  Salmon declines also arose from the construction of dams without fish passage facilities—unlike the Lower Snake Dams, which do have fish passage facilities.  For example, “[t]he construction of Brownlee Dam (1958; Rkm 459), Oxbow Dam (1961; RKm 439), and Hells Canyon Dam (1967; Rkm 397) eliminated the primary production areas of Snake River fall chinook salmon”.  (Boyles Decl. Ex. 3, at 13)[4]  In short, nearly all of the very significant adverse factors working against salmon have nothing to do with the Dams.

Thus the record before the Court offers no reason to believe that Dam-related water temperature and total dissolved gas effects have any appreciable effect upon salmon and steelhead populations.  Notwithstanding the predictions of an EPA computer model (discussed below), actual historical data demonstrates that Snake River temperatures have always been too high in the late summer for salmon.  Indeed, the record before the Court demonstrates that temperatures were generally higher in the Snake before the dams went in.

Where, as here, there are so many forces at work that affect the subject of plaintiffs’ interest, the courts have been reluctant to find “injury in fact”.  For example, in Starbuck v. San Francisco, 556 F.2d 450, 452 (9^th Cir. 1977), the Ninth Circuit held that a group of "residents, taxpayers, and consumers of electricity in San Francisco" could not challenge San Francisco's electricity transmission agreements with Pacific Gas and Electric Company.  As the Court explained,

            “We cannot ignore the reality that the consumers' costs of energy are far more attributable to national and international forces of supply and demand than they are to the Secretary's actions and omissions in respect of Hetch Hetchy power.  Nor do we have any basis to assume that appellants' energy woes will be cured by the remedy that appellants ask us to compel.”  Starbuck, 556 F.2d at 459.

So too are salmon populations buffeted by enormous forces of which water quality exceedances form but a tiny and immeasurable component. 

            This would be a very different case if dead fish were piling up in the vicinity of the Dams, killed by high temperatures or total dissolved gas.  But the designated representatives of plaintiffs, some of whom have spent decades in the vicinity of the Dams, have never seen a single salmon known to have been killed by high temperatures or excessive levels of dissolved gas.  (Spain Dep. 51:  BDX 2, at 28; Baker Dep. 20:  BDX 4, at 16; see Christensen Dep. 7-8:  BDX 1, at 2-3; accord Crouse Dep. 20-21:  BDX 3, at 12-13[5])   Put to the test, plaintiffs can doubtless identify isolated instances where fish have died because of warm or gassy water. 

            But the “salmon adapted evolutionarily to behaviorally compensate or ‘wait out’ exposure” to warm water (Pinney Decl. ¶ 6) and “each meter of depth provides pressure compensation equal to a 10% reduction in total dissolved gas” (NMFS 1995 Biological Opinion:  Boyles Decl. Ex. 1, at 107).  General evidence that warm or gassy water is bad for fish is no substitute for evidence that an appreciable fraction of Snake River fish are dying because of warm or gassy water.  The decline of salmon generally is not conjectural and hypothetical, but injury to plaintiffs from the fact that the Snake River is too warm in late summer or too gassy at times is conjectural and hypothetical.

B.            Declines in Salmon Populations Are Not “Fairly Traceable” to Water Quality Problems from Discretionary Decisions of the U.S. Army Corps of Engineers.

            CRA does not and cannot dispute that salmon can die in water that is too hot or has too much gas dissolved in it.  But plaintiffs must prove more than this; they must prove that the actions of the Corps challenged in their complaint have caused increases in temperature or total dissolved gas that threaten their interests—interests in increased salmon populations (Complaint ¶ 8).  In other words, plaintiffs must come forward with some evidence that specific actions of the Corps have caused water quality excursions that have had a tangible effect on salmon populations.  They have not done so, and cannot do so.  Idaho Wildlife Federation’s representative succinctly summarized the plaintiffs’ position:  “The only thing I know is that the temperatures haven’t gotten cooler and the dissolved gas problem hasn’t gotten any less regardless of whatever [the Corps’] decision was.”  (Christensen Dep. 25:  BDX 1, at 11; see also Spain Dep. 24-26, 45:  BDX 2, at 10-11, 27)  That is not enough for standing.

1.            Plaintiffs Present No Competent Evidence that Operational or Management Decisions of the Corps Increase Snake River Water Temperatures.

            With respect to water temperature, plaintiffs have proffered the Declaration of David Wegner, who, based upon an EPA computer model of river temperatures, concludes that “the Corp’s decisions and actions in operating the four lower Snake River Dams cause the water to exceed the 20 degrees Celsius standard . . .”.  (Wegner Decl. ¶ 33; emphasis added)  But the italicized words are carefully crafted to parrot the language of plaintiffs’ case (e.g., Complaint ¶ 54), rather than having any factual basis.

            A close reading of the Declaration makes this clear, in that over and over again, prior to his conclusion, Mr. Wegner identifies the dams themselves—not any particular operational decisions of the Corps—as the causative factor in temperature increases.  (Wegner Decl. ¶¶ 6-15)  The documentation of the model itself confirms that EPA did not in any way examine operational decisions of the Corps, but simply ran three scenarios that constituted an assessment of temperatures with and without dams.  (Boyles Decl. Ex. 13, at 18)  EPA opined in September 1999 that the model “could be used to determine the consequences of operational adjustments” (BDX. 10, at 2; emphasis added), but there is no evidence that it ever has been.

EPA did conclude that “the likelihood that both duration and magnitude with which [sic] water temperatures exceed the benchmark (20° C) in the Columbia and Snake River main stems [sic] is greater with dams in place than with dams removed”.  (Boyles Decl. Ex. 13, at 20)  The Corps has come to precisely the opposite conclusion, declaring that “the water of the Lower Snake River does not get as warm as it did before the dams were installed”.  (McKern Decl. ¶ 16)

Unlike the EPA model results, the Corps’ conclusion is consistent with the historical data, which shows that the Snake River never met temperature “standards” even before the Dams were built (McKern Decl. ¶ 4; see also id. ¶ 11; Henriksen Decl. ¶ 52), that “maximum water temperatures have declined since the dams were installed” (id. ¶ 7; see also id. ¶ 9; Henriksen Decl. ¶ 52), and that there have been fewer days above 20° C since the Dams were installed (McKern Decl. ¶ 13).  The Corps has a computer model of water temperatures which comes to precisely the opposite conclusion as the EPA model, predicting that pre-dam temperatures in the Snake “tended to be about 1° C warmer” (BDX. 11, at 81).

Plaintiffs ought not to be able to generate a genuine issue of material fact as to the effects of the Dams on temperature by putting forth a computer model utterly at odds with the historical data.  Discovery would confirm that the EPA model is defective because, among other things, (1) EPA never conducted meaningful peer review,[6] concealing from the peer reviewers, for example, that it had arbitrarily adjusted the water evaporation rate downward (thereby increasing predicted warming); (2) EPA never even bothered to calibrate its model predictions to actual measurements of pre-dam temperatures in the Snake;[7] and (3) EPA acknowledged other technical errors that render the results suspect.  (See generally Buchal Decl. ¶¶ 12-18) 

If any weight is to be given to the Wegner Declaration, it at most suggests an issue of fact with respect to the effect of dam existence on temperatures.  But that is not a genuine issue of material fact, because the mere existence of dams is not a water quality violation.  It defies credulity to suggest that the Clean Water Act impliedly de-authorized all structures impounding water in the United States.  Rather, as is evident from the text of the water quality standards themselves, it is activities and actions contributing to increased water temperatures that fall within the purview of the Clean Water Act. 

Thus, for purposes of standing, what plaintiffs must show is evidence that operational decisions of the Corps have an adverse effect upon temperatures in the Snake.  They fail to present any competent evidence whatsoever of this proposition.[8]  Nor could they, for the Dams are already operated at minimum operating pool (see Boyles Decl. Ex. 6, at 17 (the Dams are operated “within a one-foot range of minimum operating pool”); see also Ponganis Decl. ¶ 10)), hence minimizing the surface area exposed to the sun. 

As a 28-year veteran Corps fishery biologist explains:  “There are no operational measures I know of that the Corps could take at the Lower Snake dams that would measurably reduce the temperature of the water in the reservoirs” (McKern Decl. ¶ 15).   Several plaintiffs take an even stronger position:  no operational decision of the Corps since the Dams have been constructed has even contributed to higher temperatures.  (Crouse Dep. 19:  BDX 3, at 11; Christensen Dep. 29:  BDX 1, at 13)[9] 

Indeed, the 1995 Biological Opinion specifically lists the operations available to, and used by, the Corps to control temperature on the Snake, all of which involve upstream releases of cooler water from other dams:

“The [Corps] shall monitor river water temperatures and implement, when possible, temperature control measures in the Lower Snake River, such as releasing cool water from both Dworshak Dam and the Hells Canyon Complex (Hells Canyon, Oxbow, and Brownlee dams) during August and September. . . .  

"The [Corps] controls the operations of Dworshak Dam, and the Idaho Power Company controls the operations of the Hells Canyon Complex.  The Biological Opinion on 1994-98 Operation of the [Federal Columbia River Power System, including the Dams] specifies flows from Dworshak that are to be used to decrease fish mortality.  Federal Energy Regulatory Commission licenses for projects that affect listed species, such as the Hells Canyon Complex, should be subject to consultation so that the necessary fishery requirements to benefit listed species are included.”  (Boyles Decl. Ex. 1, at 165)

As detailed in the Declarations of Ms. Henriksen and Mr. Ponganis, an elaborate process is continuously underway in efforts to maximize the fishery benefits available from Corps operations, including a full balancing of temperature and other considerations.  There is nothing before the Court to indicate any defects in the balance struck.

2.            Plaintiffs present no competent evidence that operational or management decisions of the Corps increase total dissolved gas to the detriment of salmon.

            Pressed to identify what particular “operational or management” decisions of the Corps caused increases in total dissolved gas, plaintiffs singled out the decision to spill water over the top the Dams (Crouse Dep. 21:  BDX 3, at 13; Christensen Dep. 30:  BDX 1, at 14; Spain Dep. 38-39:  BDX 2, at 21-22), which does tend to increase the amount of total dissolved gas in the water.  But under the existing structural configuration of the Dams (which cannot be changed without an Act of Congress, see infra Point III, C, 3), there is a direct tradeoff between total dissolved gas from spill and salmon survival.  The Corps can frequently put more water through the turbines rather than over the spillway (producing dissolved gas), but salmon survival is generally lower through the turbines.  Plaintiffs do not want to decrease salmon survival merely to achieve the 110% standard.  (Spain Dep. 64-65:  BDX 2, at 29-30)

In its 1995 Biological Opinion, adopted by the Corps in its 1995 ROD, and carried forward thereafter (see, e.g., Boyles Decl. Ex. 8 (1998 Water Management Plan)), NMFS carefully considered the balance between spill and total dissolved gas, and explained at length its recommendation to increase spill and total dissolved gas levels (Boyle Decl. Ex. 1, at 104-110).  Plaintiffs apparently have no quarrel with the balance struck, believing, along with NMFS, that to decrease spill would, on balance, injure salmon populations.  (Baker Dep. 38-39:  BDX 4, at 24-25; accord Christensen Dep. 22:  BDX 1, at 10 (objects that spill decisions have not single-handedly recovered salmon); Spain Dep. 39:  BDX 2, at 22 (same))  Indeed, plaintiffs have acknowledged that their organizations sought waivers of the water quality standards to allow even higher spill, with total dissolved gas ranging as high as 125%—a result beyond what even NMFS considered appropriate.  (Baker Dep. 38-40:  BDX 4, at 24-26; see also Spain Dep. 41-42:  BDX 2, at 23-24)  

Plaintiffs also acknowledge that there is an extensive monitoring program to detect adverse effects of total dissolved gas on migrating salmon, which in their view overstates problems arising from total dissolved gas.  (Baker Dep. 17-19:  BDX 4, at 13-15; see also Spain Dep. 42-43:  BDX 2, at 24-25; Christensen Dep. 31-32: BDX 1, at 15-16)  In 1998, only 1.9% of fish monitored showed some signs of gas bubble disease (Fish Passage Center 1998 Annual Report:  Boyles Decl. Ex. 17, at 34); NMFS’ symptom incidence levels for corrective action have never even been attained.  Plaintiffs also presented the Court with weekly reports of the monitoring program in 1999, all of which declare that “few” fish showed signs of gas bubble disease (Fish Passage Center Weekly Reports, Boyles Decl. Ex. 16 (Weekly Reports for April 16, 23 & 30; May 7, 14, 21 & 28; June 18 & 25; July 2, 9, 16 & 23)).  NMFS concluded in its 1998 BiOp that “after three years of monitoring gas bubble disease, it now appears safe to say that gas levels in the 115% to 120% range do not threaten the survival of migrating salmonids”.  (Quoted in Ponganis Decl. ¶ 10, at 10) 

That being the case, there is no sense of which plaintiffs’ interests have been threatened merely by total dissolved gas excursions above the 110% standard.  The operation of the dams is already tuned in ways both plaintiffs and the responsible fishery agencies believe will maximize salmonid survival insofar as the balance between spill and dissolved gas is concerned.  (See also Crouse Dep. 22; BDX 3, at 4 (no knowledge of anything wrong with balance Corps has struck).)  And that tuning has produced operations which, based upon the evidence before the Court, provide essentially no adverse effects on salmon from total dissolved gas exceedances.

There is thus no sense in which decisions of the Corps are causing any injury to plaintiffs’ interests.  The Corps is exercising all its discretion in ways protective of those very interests.

C.                 Plaintiffs Do Not and Cannot Demonstrate that their Purported Injuries Can Be Redressed by an Order of this Court.

            “Relief that does not remedy the injury suffered cannot bootstrap a plaintiff into federal court; that is the very essence of the redressability requirement.”  Steel Company, 118 S. Ct. at 1019.  No one can dispute that temperatures and dissolved gas levels in the Snake frequently exceed Washington’s standards.  In order to demonstrate redressability, however, plaintiffs must show that this Court can order relief that makes it “likely” that such exceedances will decrease and that as a result, there will be an appreciable change in salmon populations.

CRA has questioned plaintiffs at length concerning how the relief they seek could conceivably redress their injuries, and suggested three theories, none of which shows a genuine issue of material fact as to redressability.  There is no evidence before the Court to suggest that any order it could issue would make any appreciable difference in the frequency of water quality exceedances, much less produce a perceptible increase in salmon populations.

1.            Temperature and total dissolved gas variance arise in part because of the conduct of third parties not before the Court.

The first problem with redressability is that plaintiffs claim that much of the problem—how much, they do not say—arises from the conduct of third parties not before the Court.  For example, plaintiffs claim that the Corps has spilled water at times not because of NMFS’ recommendation to protect fish, but because the Bonneville Power Administration (BPA) has not been able to market the power generated from them.  (Baker Dep. 32; BDX 4, at 21)  It is true that “BPA directs (every second of every day) the generation of the Federal hydro projects in meeting the total Federal load” (see generally Declaration of Phil Mesa, in Case No. 93-1420-MA (D. Or.) (BDX. 9); see also § 2(a) of the Bonneville Project Act, 16 U.S.C. § 832a(a)). 

To the extent that spill is caused by electric power operations—rather than voluntary spill for fish—plaintiffs have sued the wrong party.  And this Court cannot redress water quality violations caused by BPA because jurisdiction to review BPA action is lodged exclusively in the Ninth Circuit pursuant to § 9(e)(5) of the Northwest Power Act, 16 U.S.C. § 839f(e)(5). 

Plaintiffs have also suggested that the Corps contract with other third parties not before the Court, such as the Idaho Power Company, to affect waters coming downstream to the Dams.  (Baker Dep. 24; BDX 4, at 17)  Of course the Corps has no legal duty to mitigate water quality problems caused by other dam operators, but even if it did, this Court obviously cannot redress injuries arising from the conduct of third parties not before the Court.  Indeed, as noted in the portion of the 1995 Biological Opinion cited above, it is the Federal Energy Regulatory Commission that can, through consultations with its licensee Idaho Power Company, affect releases from the Hells Canyon Complex.  Four of these same plaintiffs have already filed suit to require just that.  Sec.  American Rivers v. FERC, 170 F.3d 896 (9^th Cir. 1999).

Finally, of course, “water temperatures in the lower Snake River are influenced more by the climatic effects on the combined regulated and unregulated volume of inflow from upriver of Lower Granite Reservoir” than by any human activities in the vicinity of the Dams.  (See Pinney Decl. ¶ 15)  And there are times when river flow is so high that it will spill over the top of the Dams and cause total dissolved gas supersaturation no matter what the Corps does.  (Baker Dep. 35; BDX 4, at 22)  For this reason, the Washington Water Quality standards for total dissolved gas do not even apply “when the stream flow exceeds the 7-day, 10-year frequency flood” (WAC 173-201A-060(4)(a)), yet plaintiffs make no attempt to identify purported “violations” taking this exemption into account.  Nature makes it warm in summer and wet in the spring, to the purported detriment of plaintiffs’ interests, but this Court cannot redress that injury, because Nature will ignore the Court.

To sum up, humans are responsible for but a tiny fraction of salmon mortality, dam operations are responsible for but a fraction of human-induced salmon mortality, water quality excursions are a tiny portion of that mortality, and there is no evidence from which the Court can determine what tiny fraction of water quality excursions are caused by operating decisions of the Corps.  Orders to the Corps to improve water quality compliance cannot possibly redress plaintiffs’ injuries in light of the attenuated chain of causality linking Corps decisions to those interests.

2.         An abstract and general interest in Clean Water Act enforcement cannot substitute for redressability.

            Plaintiffs have also suggested that orders to the Corps to comply with the Clean Water Act will redress their injuries without regard to any improvements in water quality, because “the public needs to know whether the Corps of Engineers is in violation of the Clean Water Act” (Baker Dep. 40:  BDX 4, at 26; emphasis added), whatever that may mean.  Two plaintiffs suggest that “[t]he issue is the violation, not necessarily how the violation occurred”.  (Spain Dep. 44:  BDX 2, at 26)  What plaintiffs are really after is a judicial declaration to arouse public sentiment against the Dams: 

“A clear statement from the courts of what water quality standards must be complied with, gives the public a yardstick, if you will, to apply in order to know whether or not the clean—lower Snake River is in—does have the kind of high water quality standards or does not have them . . .”  (Baker Dep. 44:  BDX 4, at 27; see also id. at 45 (alluding to such “public knowledge” as a “weapon”))

            For this Court to issue an order demanding compliance with the Clean Water Act without regard to whether such relief would redress plaintiffs’ injuries is fatally inconsistent with the design of our Constitutional system.  The Administrative Procedure Act cannot be interpreted to authorize such relief consistent with the Constitution:

“To permit Congress to convert the undifferentiated public interest in executive officers’ compliance with the law into an ‘individual right’ vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive’s most important constitutional duty, to ‘take Care that the Laws be faithfully executed,’ Art. II, § 3.  It would enable the courts, with the permission of Congress, ‘to assume a position of authority over the governmental acts of another and co-equal department,’ and to become ‘”virtually continuing monitors of the wisdom and soundness of Executive action.”’  We have always rejected that vision of our role . . .”  Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2145 (1992) (emphasis added).

Put another way, “although a suitor may derive great comfort and joy from the fact that . . . the nation’s laws are faithfully enforced, that psychic satisfaction is not an acceptable Article III remedy because it does not redress a cognizable Article III injury”.  Steel Company v. Citizens for a Better Environment, 118 S. Ct. 1003, 1019 (1998). 

3.         The possibility of Congressional authorization and appropriation for dam removal or other structural modifications to dams cannot provide redressability.

Ultimately, the plaintiffs claim that the Court should merely order “compliance” with the water quality standards in a general fashion, leaving it to the ingenuity of the Corps to devise some engineering means to decrease water temperatures and gas on the Snake.  But the Corps is not under a duty to engineer rivers to make them cooler; it is under a duty to ensure that actions within its authorities do not cause water quality violations.

 Pressed to explain how such a general “compliance” order could redress their injuries, most plaintiffs seemed to think that dam removal was the answer.  (Crouse Dep. 24:  BDX 3, at 15; Christensen Dep. 36-37:  BDX 1, at 17-18)  Dam removal is obviously not within the discretionary authority of the Corps, for reasons that the Inland Ports and Navigation Group address at length in their Memorandum in Support of Motion for Summary Judgment.

Other plaintiffs raised the possibility of substantial structural alterations to the Dams (and even other dams), such as deepening stilling basins, constructing lower portals through which cooler water might pass,[10] constructing “flip lips” to abate gas, and so forth.  But plaintiffs acknowledge that dam removal and structural modifications would also require an Act of Congress to implement.  (Christensen Dep. 38:  BDX 1, at 19; Baker Dep. 46-48:  BDX 4, at 29-31; accord Spain Dep. 15-19:  BDX 2, at 5-9) 

This interpretation of the law is congruent with that established by the Corps in its “Digest of Water Resources Policies and Authorities”:

“Recommendations for modification of a project [i.e., a dam] for water quality reasons (involving alteration of original project purposes or addition of environmental restoration as a project purpose), if they are to be adopted, must be presented in a feasibility report and submitted to Congress for specific authorization of such modification.” (Ponganis Decl. Ex. 1, at 18-5)

Under the Chevron doctrine, this Corps’ interpretation of its authorizing statutes is entitled to substantial deference.  Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).[11]

As a matter of raw judicial power, the Court can surely issue an order requiring “compliance”.  But that order cannot compel the Corps to take actions it is not, by statute,

authorized to undertake.  Because there are no actions within the Corps’ authority that could possibly redress plaintiffs’ asserted injury by increasing salmon populations through changes in temperature and dissolved gas, plaintiffs lack standing.

IV.            SECTION 313 OF THE CLEAN WATER ACT, 33 U.S.C. § 1323, DOES NOT BRING THE CORPS’ OPERATION OF THE DAMS WITHIN THE PURVIEW OF THE WASHINGTON STATE STANDARDS.

Plaintiffs’ entire case rests upon the supposition that Washington State water quality standards govern the Corps’ operation of the Dams by application of § 313 of the CWA, entitled “federal facilities pollution control”.  Section 313 states that every federal agency

“(1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants . . .  shall be subject to, and comply with, all Federal, State, interstate and local requirements . . . respecting the control and abatement of water pollution . . .” 33 U.S.C. § 1323 (a) (emphasis added).

While the Corps has jurisdiction over the Dams, the Dams do not result in the “discharge or runoff of pollutants” as that term is very carefully defined in the Clean Water Act.  Thus insofar as the Dams are concerned, Congress has not determined to waive sovereign immunity and subject to the Corps to state water quality standards.

            The Act contains a narrow definition of “pollutants”:

“The term ‘pollutant’ means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.”  33 U.S.C. § 1362(6).

Significantly, the definition does not use expansive language such as “includes, but is not limited to”. 

Plaintiffs complain of two phenomena:  gas supersaturation and temperatures.   With respect to dissolved gas, it quite plainly is not akin to any of the items on the list.  The definition does include “heat” as a pollutant, but only if it is “discharged into water”—as in the case, for example, of cooling water discharged from nuclear power plants.  Here plaintiffs complain of heat that is soaked up from the sun, not discharged from pipes.

            While we are unaware of any authority precisely on point, EPA has for years taken the position that dam-induced water quality changes do not constitute “discharge of a pollutant”, so that the dam owners such as the Corps need not obtain a permit under the National Pollutant Discharge Elimination System (NPDES) established by § 402 of the Act, 33 U.S.C. § 1342.  The D.C. Circuit has affirmed this position in a lengthy opinion, rejecting the claims of environmentalists that any adverse change in the quality of reservoir water from its natural state constituted “discharge of a pollutant”.  National Wildlife Federation v. Gorsuch, 693 F.2d 156, 165 (D.C. Cir. 1982). 

            The Ninth Circuit recently confirmed that “absent the issuance of an NPDES permit under § 1342, a citizen suit may not be based on a violation of 33 U.S.C. § 1323”.  Oregon Natural Desert Ass’n v. Dombeck, 172 F.3d 1092, 1098 (9^th Cir. 1998).  It would be odd indeed to construe § 1323 to cover the Dams for purposes of applying state water quality standards, even as plaintiffs acknowledge (by failing to plead such a claim) that they are forbidden from pursuing the remedy directly provided by the CWA.

It is important to note that the Clean Water Act does not ignore the issues raised by plaintiffs.  The Act contains a much, much broader definition of “pollution”:  “man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water”.  33 U.S.C. § 1362(19).  Dam-induced water quality changes may constitute “pollution”.  More importantly, the Act includes very specific provisions to control “pollution” arising from “changes in the movement, flow or circulation of any navigable waters or ground waters, including changes caused by the construction of dams”.  33 U.S.C. § 1314(f)(2)(F) (emphasis added).  Congress directed EPA to issue “information including . . . processes, procedures and methods to control [such] pollution”, id. (emphasis added), rather than controlling regulations.

Congress presumably understood that the vast inventory of existing dams ought not to be subject to unbounded demands to meet water quality standards without regard to cost and benefits, and expressly avoided a mandatory approach.  Thus the Corps’ position that it will comply with state water quality standards, as a matter of comity, to the extent “practical”, is precisely congruent with Congressional intent.  By contrast, plaintiffs’ interpretation of § 1323 would have the Court roughshod over Congressional restraint, and render § 1314(f)(2)(F) a nullity, in violation of elementary canons of statutory construction.

V.        THIS ACTION SHOULD BE DISMISSED ON RES JUDICATA GROUNDS.

            CRA joins in the motion of the Corps for summary judgment dismissing the complaint on grounds of res judicata.   CRA expands upon that motion by noting that this action is properly barred by two former actions.  (Buchal Decl. ¶¶ 9-10)   CRA also writes separately to emphasize that to the extent that the Court is not disposed to grant summary judgment on this ground, it should grant a continuance pursuant to Rule 56(f) to afford an opportunity for discovery on the question of privity. 

The Ninth Circuit takes an expansive view of the concept of privity.  “Privity exists between parties who adequately represent the same legal interests.  It is the identity of interest that controls in determining privity, not the nominal identity of the parties.”  Virginia Surety Co. v. Northrop Grumman Corp., 144 F.3d 1243, 1247 (9^th Cir. 1998) (emphasis added).  Moreover, “’privity’ has been found … where the interests of the nonparty and party are ‘so closely aligned as to be virtually representative.’”  United States v. Schimmels, 127 F.3d 875, 881 (9^th Cir. 1997) (citations omitted).

CRA recognizes that plaintiffs National Wildlife Federation, Washington Wildlife Federation and Idaho Wildlife Federation (hereafter, “Wildlife plaintiffs”) did not formally participate in the prior suits.  However, plaintiffs plead identical interests (Complaint ¶¶ 8-9).  Discover would further confirm the identity of interests; as one plaintiff testified, the plaintiffs repeatedly work in combination to attack the Dams, and “show up at similar meetings”.  (Spain Dep. 6; BDX 2, at 2(noting links between National Wildlife Federation, Pacific Coast Federation of Fishermen’s Associations and Institute for Fisheries Resources))  Additionally, the plaintiff organizations appear to have overlapping membership.  (E.g., Baker Dep. 5-6:  BDX 4, at 2-3)  Upon information and belief, further discovery would turn up substantial evidence from which the Court could determine that the three Wildlife plaintiffs should be bound by the prior actions of the other environmental organizations.  (Buchal Decl. ¶¶ 9-11)

Conclusion

For the foregoing reasons, the Court should grant defendant’s motion for summary judgment, and dismiss plaintiff’s complaint for lack of standing.  In the alternative, the Court should grant CRA’s motion to make more definite and certain, strike the Declarations of Messrs. McCullough and Wegner, and defer ruling on plaintiff’s motion for summary judgment until the Corps has produced the relevant administrative record, and an adequate opportunity for discovery allowed pursuant to Rule 56(f).

            DATED this 12^th day of October, 1999.

                                                                        James L. Buchal, OSB #92161

Paul M. Murphy, OSB #84125

MURPHY & BUCHAL LLP

1500 SW First Avenue, Suite 1135

Portland, OR 97201

503-227-1011

Attorneys for Intervenor-Defendant CRA