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LAWRENCE B. BURKE' OSB #[email protected] K. STUCKEY, OSB #[email protected] WRIGHT TREMAINE LLP1300 S.W. Fifth Avenue, Suite 2400Portland, Oregon 97201-5610Telephone: (503) 241 -2300Facsimile: (503) 778-5299
THOMAS V. CUPANI, OSB #924654Icup ani@cityo fs al em. netCITY OF SALEM555 Liberty St. SE, Room 205Salem, Oregon 97301Telephone: (503) 588-6003Facsimile: (503) 361 -2202
Attorneys for City of Salem
NORTHWEST ENVIRONMENTALDEFENSE CENTER, WILDEARTHGUARDIANS, ANd NATIVE FISHsoCIETY,
PLAINTIFFS,
v
IN THE LTNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
Case No. 3 : 1 8-cv-00 437 -PK
Proposed Intervenor-Defendant City ofSalemts
MOTION TO INTERVENE UNDERFED. R. CIV. P.24
Request for Oral ArgumentU.S. ARMY CORPS OF ENGINEERS andNATIONAL MARINE FISHERIESSERVICE,
DEFENDANTS
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LR 7.1 CERTIFICATION
In compliance with L.R. 7-1, the parties have made a good faith effort through personal
or telephone conference to resolve the dispute and both plaintiffs and defendants have indicated
they have yet to decide and will take a position on intervention after reviewing this motion.
MOTION
The City of Salem ("the City") respectfully moves to intervene as of right under Fed. R.
Civ. P. 24(a) as a defendant in this action. In the alternative, the City requests leave to intervene
by permission under Fed. R. Civ. P. 24(b). The City has conferred with counsel for the existing
parties before filing this motion and the parties asked to review the City's filed motion before
deciding whether to oppose it.
The City bases this motion on the Legal Memorandum in Support of City of Salem's
Motion to Intervene Under Fed. R. Civ. P. 24;the Declaration of Lacey Goeres-Priest and
attached exhibit; and the Complaint.
The City also accompanies this motion with Proposed Intervenor-Defendant City of
Salem's Answer. See Fed. R. Civ. P.2a@).
LEGAL MEMORANDUM
I. INTRODUCTION
The ultimate resolution of this lawsuit is likely to have a profound impact on the City of
Salem's drinking water supply, which relies on water quality and quantity controlled by Detroit
Dam. Defendant U.S. Army Corps of Engineers ('othe Corps") is currently conducting a public
process to determine appropriate structural or operational changes to improve long-term water
quality below Detroit Dam. As a parlicipant in that process, the City continues to provide input
on the Corps' preliminary plans to completely drain Detroit Lake, which would substantially
threaten the City's primary drinking water supply.
The Corps' proposal to construct a water temperature control structure at Detroit Dam-
and drain Detroit Lake in the process-is not a done deal. The proposal is subject to the
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requirements of the National Environmental Policy Act ('NEPA"), which requires the Corps to
consider public input, environmental impacts, and ooreasonable alternatives" before making a
final decision. The Corps anticipates issuing a Draft Environmental Impact Statement evaluating
those considerations in 2019.
Yet, through this lawsuit, Plaintiffs seek to bypass that important and statutorily required
public process. Plaintiffs allege that, under the 2008 Willamette Project Biological Opinion
("BiOp"), the Corps must construct and operate a temperature control structure at Detroit Dam
by 2018. Complaint flfl 54, 64,85. Plaintiffs seek a declaration that the Corps' failure to do so is
a violation of the agency's duties under the Endangered Species Act. Id. n A.
Plaintiffs' claims directly implicate the Corps' obligations at Detroit Dam under the
BiOp. In order to adjudicate those obligations, the Court will have to interpret the terms of the
BiOp, in turn influencing the NEPA process. As both a legal and practical matter, such a ruling
could be conclusive. And, unless the City is allowed to intervene in this action, it is also possible
that the existing parties will attempt to settle this lawsuit without the City's input, thereby
predetermining the outcome of the NEPA process and directly affecting the City's vital interests
in its drinking water supply.
Accordingly, the City asks the Court to grant the City intervention status.
The Court should grant intervention as of right under Fed. R. Civ. P. 24(a)because (1)
the City timely filed this motion; (2) the City claims significantly protectable interests relating to
the matters at the heart of the action; (3) disposition of the action may, as a practical matter,
impair or impede the City's ability to protect these interests; and (4) the existing Defendants do
not adequately represent the interests of the City and its citizens.
Alternatively, permissive intervention under Fed. R. Civ. P. 2a@) is appropriate because
(1) the Court has independent grounds for jurisdiction over the City, (2) the City timely filed this
motion, and (3) the claims and defenses in this action of the existing parties and the City present
common questions of law and fact.
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II. BRIEF STATEMENT OF FACTS
A. Endangered Species Act Consultation for the Willamette Project
Plaintiffs set forth their overview of the Endangered Species Act ("ESA") consultations
for the Willamette Project in their Complaint. Complaint fll| 1-7, 29-80. For context, the City
provides a brief overview of the BiOpt and this litigation.
In 2008, the National Marine Fisheries Service ("NMFS") issued the BiOp directing the
Corps to take various actions to reduce impacts of the Willamette Project on Upper Willamette
River Chinook and winter steelhead. For the City's purposes, the central issue in the BiOp is
NMFS's direction to the Corps to "investigate the feasibility of improving downstream
temperatures and reducing [total dissolved gas] exceedances in the North Santiam River for ESA
listed species." See Bi-Op at9-82. The BiOp identified a timeline for the Corps to (1) conduct
feasibility studies, (2) "evaluate alternatives to achieve both temperature control and downstream
fish passage," (3) "complete construction of any structural temperature control facilities by
December 2018,'and (4) "begin operation of permanent downstream temperature control at
Detroit Dam by March 2019." 1d NMFS identified Detroit Dam on the North Santiam River as
the "highest priority dam for construction of a temperature control structure or operational
changes to achieve temperature control." Id. (emphasis added).
B. The Corps' NEPA Process at Detroit Dam
In2017,the Corps signaled its intent to move forward with changes at Detroit Dam. As
required under NEPA, the Corps published its'Notice of Intent to Prepare an Environmental
Impact Statement for the Detroit Dam Downstream Passage Project" ("EIS Notice") in the
Federal Register. 82 Fed. Reg. 55,830 Q'lov. 24,2017), The Corps solicited o'scoping"
comments from the public to identify issues and alternatives to be considered during the Corps'
t The BiOp is publicly available through the NMFS website.
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development of the Environmental Impact Statement ("EIS"). Id. The Corps stated that it would
consider operational as well as structural changes at Detroit Dam as part of the EIS. Id.
In January of this year, however, the Corps announced plans to build a 300-foot water
temperature control tower at Detroit Dam. To construct the tower, the Corps proposes to
completely drain Detroit Lake, behind the dam, for two or more years.z
C. The City's Interest in Detroit Lake and Detroit Dam
Detroit Dam is approximately 45 miles upstream of the City's drinking water facility,
Geren Island. Declaration of Lacey Goeres-Priest fl 2, Ex. A. The dam is critical in regulating
water quantity and quality necessary for the City to operate its water treatment facility. Id. Any
structural or operational changes at Detroit Dam have the potential to significantly impact the
City's drinking water supply. Id. Draining Detroit Lake, even temporarily, would likely
obliterate the City's drinking water supply. Id. For more than 75 years, the City has relied on
the North Santiam River as its primary source of drinking water, which it provides to more than
i90,000 residential and industrial/commercial customers, including the City of Turner, Suburban
East Salem Water District, and Orchard Heights Water Association. 1d,
The City's water treatment facility is highly sensitive to any changes in inflowing water
quality or quantity . Id. Of particular concern, if river flows decrease below a minimum
threshold, the intake at Geren Island will not function properly. Id. The City is gravely
concerned that the Corps' proposal to drain Detroit Lake will decrease water flows below that
minimum threshold, and the City will not be able to operate its water treatment facility. Id,
Additionally, the City is concerned that the Corps' proposal will impair downstream water
quality, releasing sediment, contamination, and warm water from Detroit Lake. Id. As a result,
the City may not be able to meet its Clean Water Act responsibility to implement the 2006
' See, u.g,, Zach Urness, "Major dam project could empty Detroit Lake for years, in fish recovery plan,"Statesman Journal (Jan. i3, 2018), available athttps://www.statesmar{ournal.corn/story/news/201B/01/13/detroit-lake-oregon-reservoir-ernpty-anny-corDs-ensineers-salmon-steel lread*low-water/1 0 1 5 1 8000 1/
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Willamette Basin Total Maximum Daily Load ("TMDL"), or its responsibilities under the Safe
Drinking Water Act. Id.
Even if the Corps' proposal does not render the City's water treatment facility completely
inoperable, the City may still be unable to provide sufficient water to meet its customers' needs.
1d Restricting water use would create significant hardships for Salem water customets,
especially commercial and industrial customers. Id. It would also cause the City to lose utility
revenues necessary for the City to maintain its utility infrastructure, likely leading to substantial
rate increases for water customers. 1d,
In addition, the City holds municipal water rights in the North Santiam River. Id. n3.
Decreased flows, as a result of draining Detroit Lake, would likely interfere with the City's legal.
water rights. Id.
Because of these concerns, the City is actively participating in the Cotps' NEPA process
for Detroit Dam. See id, \2,8x. A. On January 19,2018, the City submitted a scoping
comment, alerting the Corps of the City's vital interest in Detroit Dam. Id. The Corps is
required to consider and respond to the City's comments as part of its decision making process.
See 40 C.F.R. $ 1503.4. NEPA also requires the Corps to consider "reasonable alternatives" to
its proposal to construct a water temperature control structure at Detroit Dam and to drain Detroit
Lake in the process. See 40 C.F.R. $ 1502.14(a). The Corps expects to issue its draft
Environmental Impact Statement ("EIS") evaluating those alternatives in2019. EIS Notice, 82
Fed. Reg. at 55,830.
D. Plaintiffs' Citizen Suit Against the Corps
Against that backdrop, Plaintiffs filed this citizen suit against the Corps, seeking to
expedite and influence the Corps' decision making at Detroit Dam. Plaintiffs sent the Corps a
notice of intent to sue three weeks before the Corps announced that it would prepare an EIS to
evaluate potential changes at Detroit Dam. Complaint fl 1 l. Then, in March 2018, Plaintiffs
filed this lawsuit, alleging violations of the Endangered Species Act.
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Although Plaintiffs' lawsuit broadly targets the federal government's operations of the
Willamette Project, the Complaint specifically singles out Detroit Dam as a basis for the Corps'
alleged violations. In their notice of intent to sue, Plaintiffs alleged that, although the Corps "has
agreed to provide temperature control at Detroit Dam, the agency is not scheduled to construct
and operate the necessary structures for at least several more years, well beyond the December
2018 deadline." See id, Plaintiffs' Complaint followed, alleging that the BiOp requires the
Corps to construct a temperature control structure at Detroit Dam and that the Corps' current
proposed schedule "will exceed the deadline by more than four years for construction and
operation of a temperature control structure at Detroit Dam." Id. n 64. Plaintiffs seek injunctive
relief and a declaration that the Corps' failure to timely construct the temperature control
structure is a violation of the Corps' obligations under Section 7(a)(2) of the ESA, 16 U.S.C. $
1536(a)(2). Id. n 82, Prayer for Relief. The Corps has requested, and this Court has granted, an
extension to file its answer on or before July 17 ,2018. See Dockets 1, 6.
On May 23,2018, the City became aware that Plaintiffs and the Corps may be pursuing a
settlement in this action. As a result, the City took action to file this motion to intervene.
ilI. ARGUMENT
A. The Court Should Grant Intervention as of Right under Rule 24(a).
Under Rule 24(a), "[o]n timely motion, the court must permit anyone to intervene who:
... (2) claims an interest relating to the property or transaction that is the subject of the action,
and is so situated that disposing of the action may as a practical matter impair or impede the
movant's ability to protect its interest, unless existing parlies adequately represent that interest."
The Ninth Circuit applies a four-part test under Rule 24(a):
"(1) the motion must be timely; (2) the applicant must claim a'significantly protectable' interest relating to the property ortransaction which is the subject of the action; (3) the applicantmust be so situated that the disposition of the action may as apractical matter impair or impede its ability to protect that interest;and (4) the applicant's interest must be inadequately representedby the parties to the action."
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Wilderness Soc'y v. U.S. Forest Serv.,630 F.3d 1173,11,77 (9thCir.2011) (citation omitted).
In evaluating whether a proposed intervenor meets this test, the Ninth Circuit oonormally
followfs] 'practical and equitable considerations' and construefs] the Rule 'broadly in favor of
proposedintervenors."' Id. atI,779 (quoting UnitedStatesv. Cityof LosAngeles,288F.3d391,
397 (9th Cir. 2002)). "A liberal policy in favor of intervention serves both efficient resolution of
issues and broadened access to the courts." City of Los Angeles,288 F.3d at397-98. In addition,
courts ootake all well-pleaded, nonconclusory allegations in the motion to intervene, the proposed
fpleading] ... in intervention, and declarations supporting the motion as true absent sham,
frivolity or other objections. " Sw. Ctr. for Biological Diversity v. Berg,268 F.3d 810, 820 (9th
Cir.2001).
1. The Cify Timely Filed this Motion to Intervene.
In evaluating timeliness, the Court should consider: (1) "the stage of the proceeding," (2)
"the prejudice to other parties," and (3) "the reason for and length of the delay." Day v,
Apoliona,505 F.3d 963,965 (9th Cir. 2007) (permitting intervention two years into case; "mere
lapse of time, without more" does not bar intervention). The City's motion satisfies all three
factors.
' The City has filed this motion as early in the proceedings as reasonably possible.
Plaintiffs filed their Complaint just three months ago, and the Court has extended Defendants'
deadline to file an answer until July I1,2018. See Dockets 1, 6. No factual or legal issues have
been developed, and the Court has not held any dispositive hearings or issued any substantive
rulings. As a result, the City's motion is timely. See, e.g.,Idaho Farm Bureau Fed'nv. Babbitt,
58 F.3d 1392,1397 (9th Cir. 1995) (motion to intervene timely when filed four months after
complaint's filing and one month after plaintiff moved for injunction but before court held
hearing or ruled on substantive matters); Fundfor Animals, Inc. v. Norton,322F.3d728,735
(D.C. Cir. 2003) (motion to intervene timely when filed two months after the complaint and
before defendants filed an answer).
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In addition, the City's intervention at this early stage will not prejudice the other parties
or disrupt or delay the proceedings. See Citizens for Balanced Use v. Mont. Wilderness Ass'n,
647 F .3d 893, 897 (9th Cir. 20lI) (no prejudice where motion to intervene filed 'oat an early
stage of the proceedings"). Moreover, the City's concerns directly involve interpretation of the
2008 BiOp, the key document that Plaintiffs have put at issue. Thus, the City "will not create
delay by 'injectfing] new issues into the litigation."' Doy,505 F.3d at965; see also WildEarth.
Guardians v, Salazar,272F.R.D.4, 13 (D.D.C. 2010) (intervention granted early in proceedings
where "Plaintiffs cannot credibly claim ... that they would be prejudiced by fthe movant's]
intervention at this juncture"); Greenpeace Found. v. Daley, I22 F . Supp. 2d IIl0, 1 1 14 (D.
Haw. 2000) (intervention permitted less than three months after complaint filed because allowing
the movants to o'intervene at this point in the litigation would not prejudice Plaintiffs or
Defendants").
Because an answer or responsive pleading has not even been filed, the City's motion to
intervene is timely.
2. The City Has Significantly Protectable Interests.
The Ninth Circuit's "significantly protectable interest" test'ois primarily a practical guide
to disp'osing of lawsuits by involving as many apparently concerned persons as is compatible
with efficiency and due process."' Wilderness Soc'y,630 F.3d at lI79 (citation omitted).
"[A] prospective intervenor's assefied interest need not be protected by the statute under which
the litigation is brought to qualify as 'significantly protectable' under Rule 24(a)(2)." Id.
(quoting Sierra Club v. U.S. Env'tl Prot. Agency,995 F .2d 1478, 1481, 1484 (9th Cir. 1993))
(emphasis added). ooRather, '[i]t is generally enough that the interest is protectable under some
law, and that there is a relationship between the legally protected interest and the claims at
issue."' Id, (quoting Sierra Club,995 F.2d at 1484). Thus, o'a prospective intervenor ohas a
sufficient interest for intervention purposes if it will suffer a practical impairment of its interests
as a result of the pending litigation."' Id. (quoting CaL ex rel. LoclEer v. United States, 450 F.3d
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436,441 (9th Cir. 2006)). The City has significantly protectable interests to justify intervention
as of right:
First, the City stands to be impacted as a result of the practical dynamics of this lawsuit.
Plaintiffs seek to compel the Corps to implement temperature control measures at Detroit Dam as
quickly as possible to meet the deadlines under the BiOp. Complaint'lTfl 60, 64. Plaintiffs allege
that the Corps can meet its obligations by implementing those measures or reinitiating an
onerous, time-consuming, and contentious consultation process under the ESA. Id.fll84-85.
For its part, the Corps has every incentive to marshal its current temperature control structure
proposal through the NEPA process, to moot aspects of this lawsuit and avoid a new consultation
process. The lawsuit also raises the risk that the parties will settle, effectively determining the
fate of Detroit Lake outside the public process and frustrating the City's ability to meaningfully
participate in that process.
Second, the City stands to lose from a judicial declaration of the Corps' obligations at
Detroit Dam. Plaintiffs have placed the 2008 BiOp squarely at issue, alleging that it mandates a
temperature control structure at Detroit Dam. Id. \ 64. Meanwhile, the Corps is currently
advocating, through the NEPA process, for a temperature control structure at Detroit Dam. The
City does not agree that the 2008 BiOp requires the Corps to install a temperature control
structure at Detroit Dam. Although the Corps has not yet filed its answer, the City is concerned
that the existing Defendants in this case are not positioned to dispute Plaintiffs' interpretation of
the 2008 BiOp, a legal question in which the City has a significant interest. There is a real risk
that the Courl will be asked to rule on this issue and, absent the City's participation in this
lawsuit, will not hear opposing arguments on this issue. Such a ruling from this Courl could
shape the outcome of the NEPA process, as both a practical and a legal matter.
Given those dynamics, the claims alleged in this lawsuit put the City's water rights and
drinking water supply at risk. As previously explained, any action at Detroit Dam threatens to
impact the City's ability to provide a sufficient quantity of safe drinking water to the
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approximately 190,000 people who depend on it. Courts have routinely granted intervention to
local governments under similar circumstances. See, e.g., Lower Ark. Valley Water Conservancy
Dist. v. US., No. 07 -cv-2244 (D. Colo. Dec. 1 1,2007) (granting intervention to City of Aurora
to protect its water supply, as party to challenged contract with United States for utilization of
water from reclamation project); The Muckleshoot Indian Tribe v. Nat'l Marine Fisheries Servs.,
No. C03-3775P (W.D. Wash. Apr. 21,2004) (granting intervention to City of Seattle in
challenge to Biological Opinion where City's alleged interests included, among other things,
continued use of its water right claim, contractual obligations to supply watet, use of
hydroelectric facility, and management of the portion of its watershed). Furthermore, the City's
projected loss in utility revenue is a concrete economic interest tied to the subject matter of this
litigation-the type of economic interest for which the Ninth Circuit has stated intervention is
appropriate . See []nited States v. Alisal Water Corp.,370 F3d 915, 919 (9th Cir. 2004) (stating
that economic interests must be "concrete and related to the underlying subject matter of the
action").
3. Disposition of the Action Will Impair or Impede the City's Ability toProtect Its Interests.
A proposed intervenor under Rule 24(a) must show that disposition of the action will put
the intervenor at a practical disadvantage in protecting its interests. See Forest Conservation
Council,66 F.3d at 1498. The Court should allow intervention "[i]f an absentee would be
substantially affected in a practical sense by the determination made in an action." Citizens for
Balanced Use,647 F.3d at 898 (quoting Fed. R. Civ. P. 24 advisory committee's note).
As previously stated, this litigation is likely to practically influence the Corps' NEPA
process for Detroit Dam, which is the administrative process in place to protect the City's
interests. And, beyond those considerations, this Court's legal determinations may place the City
at a practical disadvantage in protecting its interests. If this Courl opines on the Cotps'
obligations at Detroit Dam, and does so without the City's involvement, the City would have no
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way to appeal any ruling that effectively requires the Corps to construct a water temperature
control structure. See Michigan State AFL-CIO,103 F.3d at 1245 (permitting chamber of
commerce to intervene where, among other things, non-party status would not protect chamber's
ability to seek appellate review if original parties failed to appeal). On the other hand, if any of
the existing parties were to appeal an adverse ruling from this Court, the City would face a
practical disadvantage in challenging the 2008 BiOp in another lawsuit, as an appellate courl's
decision "[would] have a persuasive stare decisls effect in any parallel or subsequent litigation."
Llnited States v. Oregon,839 F.2d 635, 638 (9th Cir. 19S8). The Ninth Circuit has "said that
such a stare deciszs effect is an important consideration in determining the extent to which an
applicant's interest may be impaired." Id.
4, Defendants Inadequately Represent the City's Interests.
Courts in the Ninth Circuit consider several factors in determining whether an existing
party will adequately represent an intervenor's interests. These factors include "(1) whether the
interest of a present party is such that it will undoubtedly make all the intervenor's arguments;
(2) whether the present party is capable and willing to make such arguments; and (3) whether the
would-be intervenor would offer any necessary elements to the proceedings that other parties
would neglect." City of Los Angeles,288 F.3d at 398 (emphasis added) (citation ornitted). A
proposed intervenor generally faces a minimal burden of establishing inadequacy of
representation. See id, Whenthe government acts on behalf of its constituency, or when the
present party and intervenor share the same interests, a presumption of adequacy exists. See
Citizens for Balqnced Use,647 F.3d at 898. But even under these circumstances, the Ninth
Circuit has "stressfed] that intervention of right does not require absolute certainty that aparty's
interests will be impaired or that existing parties will not adequately represent its interests." /d.
at 900. Rather, the intervenor need only show the existing parties "may not adequately protect
their interests." Id. (emphasis added).
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Here, there is a substantial risk that the existing parties may not adequately protect the
City's interests. The Corps has not yet filed its answer, and so its precise position regarding the
BiOp and the Detroit Dam is unknown. As previously explained and as documented in the
City's comments (see Exhibit A to Declaration of Lacey Goeres-Priest), the City has
fundamental concerns that the existing Defendants are not inclined or otherwise well-positioned
to challenge Plaintiffs' legal position that the BiOp requires the Corps to install a water control
structure at Detroit Dam. The existing parties also have every incentive to advocate for a water
control structure-in the form currently proposed by the Corps-as the most expedient way to
resolv_e this lawsuit and water quality concerns below Detroit Dam. The City does not dispute
that water quality concerns must be addressed, but the NEPA process requires the Corps to fully
consider a range of alternatives. Absent the City's intervention, there is a significant risk that
this litigation will effectively force the Corps to implement a proposal that harms the City's
water supply.
5. The Cify Can Demonstrate Article III Standing To Intervene.
The City may ultimately want to file cross-claims against the Corps. Because the Corps
has not yet filed its Answer, any cross-claims would be premature at this time. The City is
prepared to demonstrate that it has Article III standing, in the event that the City seeks to add
claims or relief different than those that Plaintiffs have requested. See Town of Chester, N.Y. v.
Laroe Estates, Inc.,I37 S. Ct. 1645,1651, 198 L. Ed. 2d 64 (2017) ("[A]n intervenor of right
must have Article III standing in order to pursue relief that is different from that which is sought
by a party with standing.").
B. In the Alternativeo the Court Should Grant the City Leave to Interveneunder Rule 24(b).
Under Rule 24(b)(1)(B), on a "timely motion, the court may permit anyone to intervene
who ... has a claim or defense that shares with the main action a common question of law or
fact." In ruling on a motion for permissive intervention, "the court must consider whether the
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intervention will unduly delay or prejudice the adjudication of the original parties' rights." Fed.
R. Civ. P. 24(bX1)(B). Courts in the Ninth Circuit "may grant permissive intervention where the
applicant for intervention shows (1) independent grounds for jurisdiction; (2) the motion is
timely; and (3) the applicant's claim or defense, and the main action, have a question of law or a
question of fact in common." City of Los Angeles,288 F.3d at 403. The City meets all three
criteria.
First, the Court has independent grounds for jurisdiction over the City under 28 U.S.C.
$ 1367(a), which permits the Courl to exercise supplemental jurisdiction for o'the intervention of
additional parties." In addition, this case presents purely federal questions, over which this Court
has jurisdiction under 28 U.S.C. $ 133 i. The Ninth Circuit has "clarif[ied] that the independent
jurisdictional grounds requirement does not apply to proposed intervenors in federal-question
cases when the proposed intervenor is not raising new fstate law] claims." Freedomfrom
Religion Found., Inc, v. Geithner, 644 F.3d 836,843-44 (9th Cir.2011) (explaining independent
jurisdictional requirement intended to prevent proposed intervenors from "seekfing] to use
permissive intervention to gain a federal forum for state-law claims over which the district court
would not, otherwise, have jurisdiction").
Second, as discussed, see supra Part IILA.1., the City's motion is timely.
Third, the City's defenses and the main action have questions of law and fact in common.
At the heart of this lawsuit are legal questions about the requirements of the 2008 BiOp. The
City's position, that the 2008 BiOp does not require the Corps to construct a water temperature
control tower at Detroit Dam, arises out of that legal question.
Page 14 - CITY OF SALEM'S MOTION TO INTERVENEDAVIS WRIGHT TREMAINE LLP
4850-4418-2378v.9 0783034-000011 1300 S.W. Fifth Avenue, Suite 2400
(, * ) i;i'.',lii6 ?#,'Jl,iJ# ;'*11$,,,.
Case 3:18-cv-00437-PK Document 7 Filed 06/25/18 Page 14 of 15
IV. CONCLUSION
For the foregoing reasons, the City respectfully requests that the Court permit it to
intervene under Rule 24.
DATED this 25th day of June,2018.
DAVIS WRIGHT LLP
ByLAWRENCE B. BURKE, OSB #892082la$')'burke@d*..cornAARON K. STUCKEY, OSB #954322aaro nstuck e)' @dwt. -comTelephone: (503) 241-2300Facsimile: (503) 778-5299
THOMAS V. CUPANI, OSB #924654tcupAlri @c ityofsal em. netTelephone: (503) 588-6003Facsimile: (503) 361-2202
Attorneys for City of Salem
Page 15 - CITY OF SALEM'S MOTION TO INTERVENEDAVIS WRIGHT TREMAINE LLP
4850-4418-2378v.9 0783034-000011 1300 S.W. Fiftlr Avenue, Suite 2400Portland, Oregon 97201-5610
(503) 24t -2300 main' (503) 7 7 8-5299 fax
Case 3:18-cv-00437-PK Document 7 Filed 06/25/18 Page 15 of 15
LAWRENCE B. BURKE, OSB #[email protected] K. STUCKEY, OSB #[email protected] WRIGHT TREMAINE LLP1300 S:W: Fifth Avenue, Suite 2400Portland Oregsn 9720\ -5610Telephone: (503) 241-2300Facsimile: (503) 778-5299
THOMAS V. CUPANI, OSB #[email protected] OF'SALEM555 Liberty SI..SE, Room 205Salem, Oregon 97301Telephone: (503) 588-6003Facsimile: (503) 361-2202
' Auorneys for City of Salem
N ORTITWEST ENVIRONMENTALDEFENSE CENTE& WrLDE'{RTHGUARDIANS, And NATTVE FISHsocIETY,
PLAINTIFFS,
IN THE TINTTED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
Case No. 3 : I 8-cv:0043.7-PK
DECLARATION OF' LACEY GOERES.PfuESTIn Support of City of Salem's Moiion toIntervene
.v.U:S. ARMYNATIONALSERVICE,
CORPS'OF ENGINEERS andMARINE FISI{ERIES
DEFENDANTS.
' I, Lacey Goeres-Piieslj declare as folloWs:
. l. I am the'Water Quality Supervisor foi the City of Salem. I make this declaration
on personal knowledge and in support of the City of Salem's Motion.to,'Intervene.
Pagd 1 - DECLARATTON OF LACEY GOERES-PRIEST rN SUPPORT OF Crry OF SALEM',S MOTTON TOINTERVENF,4820-7611-274Jv.2 OzsrOg+-0OObt r levrS wRrcHT TREMATNE LLp .
. . Pprtland, .Oregon 9720I-561.0'
Case 3:18-cv-00437-PK Document 7-1 Filed 06/25/18 Page 1 of 6
2. Attached as Exhibit A to this declaration is a true and correct copy of the City of
Salem's public scoping comments submitted January 19, 20i8, i4 response to the U.S. Army
Corps.of Engineers' "Notice of Intent to Frepare an Environmental Impact Statement for the
Detrqit Dilrn Downstream Passage Project," 82 Fed. Reg. 55,830 (Nov. 24,201,7).
3.. The City of Salem holds municipal water rights in the North Santiam River.
Decreased flows in the North Santiam River, as a result of draining Detroit Lake, would likely
interfere with. those water rights.
I declare under penaltlt of perjury under the laws of the State o.f Oregon that the
for.egging is true and correct and that this D.eclarationwas executed'on June 75 2018, at
Salen1, Oregon.
By:
Page 2 - DECLI{RATION OF LACEY GOERES-PRIEST IN SUPPORT OF CITY OF SALEM'S MOTION TOINTERVENE4820:7611:2747v.2 0783034400011 DAVIS WRICHT TREMAINE LLp
Portland,. Oregon 97201-5610
Case 3:18-cv-00437-PK Document 7-1 Filed 06/25/18 Page 2 of 6
clTy
YOUR, SERVICE
CIry MANAGER'S OFFICE5S5LibertyStsE/Room!90r Salem,OR97301.3503 o (503)588-6255 o Fsx(503)588-6354
January 19,2018
Kelly JanesU,S, Army Corps of EngineersAttsntion: PM-EPO Box 2946Portl and, Oregon 97 208-29 4 6
SUBJECTI Detroit Dam aud Lake Downstream Passage Project
Dear Ms, Janes;
This letter seryes as the City of Salem's public scoping comments for the oonstuction of projectsthat allow for downsheam juvenile fish,passage and temperatrue contol at Detroit Dam on theNorth Santiam River, The North Santiarn River is the City of Salem's p.rimary soruce of drinklingwater for over 192,000 customers and th:ee wholesale oustomers: the City of Turner, SuburbanEast Salem 'Water Distriol and Orchard Heights Waler Association, The City of Salvm'sdrinking water treatment facility, Geren Island, is located 45 miles downstrea:n ftom DetoitDam, Constuction of these two structures will likely cause significant impaots to the City'swater freatrnent process, which rnay linit the ability to sewe City of Salem water oustomsrs.
Water Quatlty
For more than 75 yea$, the Nortl Santiam River has served as the primary drinking water sourcefor the City of Salem. The high water quality of the North SantiamRiver allows the City to weslow sand filtration as part ofthe beatrnent prooess, Slow sand filtration is a natural filtrationprooess, allowing naturally gxisting biota in the river to forru a biological layer which thendegrades and/or romoves particulates artd microbial contaminants in the water.
Under normal opuating conditions, the slow sand filters are operated wtthout preheatmerit(coagulation, filtation, and sedimentation). Normal oporating condlflons require raw watertubidity of less than 10 Nephelometio Turbidity Units (NTU). The constuction ofthis projeatwill likely oreate oignificantly increased and sustained [evels of turbidity that will be released tothe North Santiarn River downsbear-n of the darns, This turbid water will dramatically affact theCity's ability to utilize slow sand filtratlon under norural operations. The City can maxinizeoperations during short, flashy turbid events, however, sustained turbidity will oreale sigrificautoperational ohallenges, The City is awaro of lncreased and sustained turbidity caused in the
MoKenzie Nver during the constuction of the temperatwe contol structr,ue at€ougar Darn in,2002, which created 8n avdage tubidity in the river of 106 NTU for four months,
EQUAL OPPORTUNIIY / AFFIRAAATIVE ACTION EMPLOYER
womenr minorltles, and dlsabled are encouiaged to apply . ADA Accommodatlons will be prglided upon requ€st
EXHIBITA-PAGE1OF4
Case 3:18-cv-00437-PK Document 7-1 Filed 06/25/18 Page 3 of 6
l{I
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Kelly JanesJanuary 19,2018Page2
Lower water elevations in Dehoit Reservoir and Big CliffReservoir may lead to higher watertemperatures in the North Santiam River. Any deviations ftom nonnal water quality parametershave the ability to impact the operations of the water boatment plaat including but not lirrtted tochanges in filter performanoe and chernical dosage.
Higher water tempqatures may also increase the ocourrenqe and magnitr:de of algal blooms inDotroit Reservoir and the North Santiarn River. Algal blooms oan negatively impaot the watertreatrnent proaess by (l) ologging filters and inhibiting the City's ability to meet water demand,(2) production of algal toxins, and (3) taste and odor issuos caused by Geosmin and2-Methylisoborneol (&fIB), The City maintains a robust Watershed Monitoring Progra:n whic\is vital ln identifftng the presouoe of a bloorir and s"rpling for identification/enumeration of thealgae in addition to sampling for tlie presonce of cyanotoxins.
.Ongoing aooess to Detroit Reservoir druing the summer months is imperative for the success ofwater quality monitoring program, The City acoesses Dehoit Reservoir at Mongold State Park.The City would be opposed to using Mongold State Park for a staging atea during constuction,Additionallyj the City would request construction of a ramp extension tp allow for continuodacoess to allow for year-round aooess to the reservoir should the reservolr level drop below thelow water boat ramp.
Tbe City is also conoemed about the possible release of contdminants in the silt at the bottom ofthe reservojr. During the construotion period ofthe temperature oontrol strustrre at CougarDam, it was reported that DDT bound to sediment w6s released downstream. The release of anycontaminant from the sediment may impaot the City's ability to meet regulatory requirementsunder the Safe Drinking Water Act.
Water Quantity
The Geren Island Water Treatnent Facility ls located on an jsland in the middle of the NorthSantiam River east of the City of Stayton, The facllity's water intake, also kaown as the Middlelntake, ls located on the norttr ohannel of the North Santiam Nver, In Ordor for the troatnostplant to function properly, river stage in the North $antiarn River at the Middle Intake must be atleast 2,3 feet. Flows of 700 cubic feet per seoond (ofs) at Mehama are needed to meet thissdtical river stage level. Any flow lower than that will drastically affect the City's ability toproduce drinking water to meet Salem water oustomer demands.
The City is concerrd that during the construction of these projects, sustained flow will be
minimal in the Norttr Santiam River and the channel elevationmay even reachthat criticaltlneshold of 2,3 fpet at the Middle Intake, If this occws, the City will be unable to produce
enough drinking wator to meet the needs of its communlty,
Distribution of deposition downsheam ftorn Big CliffDam is also of ooncern, As peviouslymentloned, the City's drinking wate.r intake is looated on North Channel of theNorth Santianr
River. Inoreased sediment traosport tluoughthe dams and into the North Santiam River.willeventuafy accumulate in the bed, The location and quantities of this addltional sedimentdeposition may alter ancVor restrict flows to the North Chauel whioh pan significantly ohallenge
EXHIBIT A - PAGE 2OF 4
Case 3:18-cv-00437-PK Document 7-1 Filed 06/25/18 Page 4 of 6
Kelly JanesJanuary 19,2018Page 3
operations at the treatment plant. Furthermore, instream work needed to dredge problematicdeposition in the North Santiarn River is bounded by pennit oonstraints and triggered mitigationactions.
Economic Impacts
There is the potential for siemifioant economic impact from the consbuotion of these projects.City of Salem water custorners, both residential and comrnerciaVindushial, depend on a reliable,high quality drinking water, Any negatiye ohanges to the quality and quantity of the NorthSantiam Rivor affeots the City's abilify to meet oustomer's expeotations, Furthermore, shouldproduotion of water be limited, Salem water customors m:ay faae some level ofwater or:rtailmentfor potentially long poriods of time, Restricting water uses creates significant hardships forSalem water customers, especially conomercial and industrial oustome$.
Sustained water surtailment would lessen the City's utitity revenues. Revenue projections arebased on assumed water demand without owtailment oonsiderations. Reduced rovenues impedethe City's ability to suitably tnaintain the utilify infrasffuchue systems, These reductions couldIead to inoteased utility rates for Salem's water oustomors.
Regulatory Impacts
The City of Salem is a Designated Management Agency (DMA) under the U.S. EnvironmentalProtection Agenoy (EPA) 2006 Willametts Basin Total MaximumDaily Load (TMDL) a.ndthe2008 Molalla-Pudding TMDL, and is responslbte for development and implementation ofsbategies to rninimize and addrqss the discharge of TMDL pollu(ants, TMDLs were established
to define allowable pollutant load disoharges for DMAs in order to meet watet quallty startdards,The Willamette Basin TMDL addresses bacteria, merouryl psstioides, turbidity, and temperatute;and the Molalla-Pudding TMDL addresses temperature, bacterig pesticides (DDT, dieldrin,ohlordane), nitrate, and iron/manganese/arsenio, Total suspended solids (TSS) serye as a
surrogate for pesticides and is managed as a water quality pollutant.
The City is concemed about the possible release of contaminants in the slit at the bottom of thereservoir, and its lmpaot to water quattty downstrearn as it flows tluough the City and into the
Willamette River. The City ounently implements a S-year TMDL plan to reduce all pollutants,and the release of any TSS from projects at Detroit Dam mey hinder progress to remove thispollutant fiom the Willamette River,
Aesthetlc Impacts
The City of Salem has a tolal of 102 cfs in watpr rights for recreation and aesthetics for MillQreek, a tributary of the Wittamette Rivor, which flows though the City of Salom. To meet thiswater right during the sumrner months, flow in Mill Creek is augaented by the Nor0r Santlamvia flow conhol gates on Salem Ditoh and Stayton Canal. Both gates are looatsd in the Stayton
area and both aro managed and operated by the Santiarn Water Conbol Distjct, Additionally,the Santiam Water Conhol Distriot ca& ?nd often does, divert water from MilI Creekto Pringle
Creek to meet inigation demand. Mill Creek and a pofiion of Pringle Creok are classified as
EXHIBITA-PAGE3OF4
Case 3:18-cv-00437-PK Document 7-1 Filed 06/25/18 Page 5 of 6
I(elly Janes r
Jaauary 19,2018Page 4
Essential Salmonid Habitat and any increases abovo baokground turbidity levels and higherstreasr temperatures could degrade this habitai. Furthennore, the City of Salem operates tlueefish ladders on these streams that were engineered based on the 102 cfs waterdght. Therefore,any reduction in flow lower than 102 cfs oould affect anadromous fish passage tbrough these
stnrctures.
Mill Creek and Pringle Creek are both important natural rosourcbs to &i Salemoommunity, Many homes and businesses are losated sheanside, Lowor flows with inoressed
turbidity in Mill and Pringle Creeks will likely have a uegative effect on water quality by oausinginoreased stream temperatwes, algal blooms, and offensive odors, The City is also concenedabout harmfill algal blooms extending into the various waterbodies withi! the Citypuks, whiohare fed by North Santiam River source water.
Alternative to Standard Constructlon Practlces
The City would like the U,S, Anny Corps of Engiaeers to investigate alternative construotionpraoticos to mlaimize effects on the North Santiarn River, Suoh practic€i may lnolude siddng a
pneumatic caisson to construct tbe fouudation of the temppratrle contol structrue. This type ofoonstruction oould reduoe the time perlod of impact and ninimize the'reseryoir drawdown lwel.
The City of Salem greatly appreoiatos ihe opportunity to provide comments on this proposed
project. We hope our ooncems aro included in yotu ptoject scope.
$iaoerely,
Steven D.City Manager
oc: - Peter Fernandez, PE, Public Works DireotorLaoey Goeres, Wator Quahf Treahnent Supervisor
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EXHIBIT A- PAGE 4OF 4
Case 3:18-cv-00437-PK Document 7-1 Filed 06/25/18 Page 6 of 6
LAWRENCE B. BURKE, OSB #[email protected] K. STUCKEY, OSB #[email protected] WRIGHT TREMAINE LLP1300 S.W. Fifth Avenue, Suite 2400Portland, Oregon 97201-5610Telephone: (503) 241-2300Facsimile: (503) 77 8-5299
THOMAS V. CUPANI, OSB #924654tcup ani@cityo fs al em. netCITY OF SALEM555 Liberty St. SE, Room 205Salem, Oregon 9730ITelephone: (503) 588-6003Facsimile: (503) 361-2202
Attorneys for City of Salem
NORTHWEST ENVIRONMENTALDEFENSE CENTER, WILDEARTHGUARDIANS, and NATIVE FISHsoCIETY,
PLAINTIFFS,
V
U.S. ARMY CORPS OF ENGINEERS andNATIONAL MARINE FISHERIESSERVICE,
DEF'ENDANTS
Page 1 - CITY OF SALEM'S ANSWER
4843 -46t 6-53s4v.4 0783034-0000 I I
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
Case No. 3 : 1 8-cv-00437 -PK
Proposed Intervenor-Defendant City ofSalemos
ANSWER
DAVIS WRIGFIT TREMAINE LLP1300 S.W. Fifth Avenue, Suite 2400
Portland, Oregon 97201-5610(503) 241-2300 main . (503) 778-5299 fax
Case 3:18-cv-00437-PK Document 7-2 Filed 06/25/18 Page 1 of 3
Proposed Intervenor-Defendant City of Salem ("the City") answers the Complaint as
follows:
1.
The City specifically denies that the 2008 Biological Opinion requires the U.S. Army
Corps of Engineers ("the Corps") to construct a temperature control structure at Detroit Dam or
that the Corps has violated, is violating, or will violate the Endangered Species Act by not
constructing a temperature control structure at Detroit Dam.
2.
The City admits of Paragraph 36 that Detroit Reservoir is a popular recreation area.
Otherwise, the City lacks sufficient information to form a belief as to the truth of the allegations
of Paragraph 36 and, on that basis, denies them.
3.
The City specifically denies of Paragraph 54 that the 2008 Biological Opinion requires
the Corps to "construct a temperature control facility at one dam by the end of 2018, with Detroit
Dam being first priority." The City generally denies all other allegations in Paragraph 54.
4.
The City specifically denies of Paragraph 64 that the 2008 Biological Opinion requires
the Corps to construct a temperature control facility at Detroit Dam or that the Corps will
ooexseed the deadline by more than four years for construction and operation of a temperature
control structure at Detroit Dam for long-term improvement to water temperature in the North
Santiam River." The City generally denies all other allegations rnParagraph64.
5.
Except as specifically admitted herein, the City denies all allegations of Plaintiffs'
Complaint.
Page2 - CITY OF SALEM'S ANSWER
4843 -4616-5354v.4 0783034-00001 IDAVIS WRIGHT TREMAINE LLP1300 S.W, Fifth Avenue, Suite 2400
Poftland, Oregon 97201-5610(503) 241-2300 main , (503) 778-5299 fax
Case 3:18-cv-00437-PK Document 7-2 Filed 06/25/18 Page 2 of 3
FIRST AFFIRMATIVE DEFENSE
(Failure to State a Claim)
. Plaintiffs have failed to allege facts sufficient to state a claim for relief.
SECOND AF'FIRMATIVE DEFENSE
(Failure to Join Necessary Parties)
Plaintiffs have failed to join a necessary party or parties, including any other person or
entity that may be liable for the matters alleged in the Complaint.
THIRD AFFIRMATIVE DEFENSE
Qrlo Wrongful Act)
Plaintiffs' claims are bamed, as the injuries or damages alleged by Plaintiffs, if any, were
not caused by any acts or omissions of Defendants.
FOURTH AFFIRMATIVE DEFENSE
(lt{o Standing)
Plaintiffs lack standing to assert the claims stated in the Complaint and to seek some or
all of the relief requested.
DATED this 25tl'day of June,2018.
DAVIS WRIGHT TREMAINE LLP
ByLAWRENCE B. BURKE, OSB #892082lartybu*[email protected] K. STUCKEY, OSB #954322aaron stuckglz@dwt. co mTelephone: (503) 241-2300Facsimile: (503) 77 8-5299
THOMAS V. CUPANI, OSB #924654tcupani@ci0ro-fsalem. netTelephone: (503) 588-6003Facsimile: (503) 361-2202
Attorneys for City of Salem
Page 3 - CITY OF SALEM'S ANSWER
4843 -46t6-5354v.4 0783034-0000 I IDAVIS WRIGHT TREMAINE LLP1300 S.W. Fifth Avenue, Suite 2400
Portland, Oregon 97201-5610(s03) 241-2300 main ' (503) 778-5299 fax
s/ Lawrence B. Burke
Case 3:18-cv-00437-PK Document 7-2 Filed 06/25/18 Page 3 of 3