Endangered Species Law & Policy

Recently, the United States District Court for the Northern District of California refused to dismiss a lawsuit filed by a concerned citizen against the U.S. Army Corps of Engineers (Corps) and National Marine Fisheries Service (NMFS) alleging Endangered Species Act (ESA) violations in connection with the Corps’ operation of the Coyote Valley Dam on the Russian River in Northern California. The court opined that federal defendants cannot avoid having to defend their prior actions simply by initiating the consultation process under section 7(a)(2) of the ESA, and the equities weighed against a stay of the litigation while the consultation process unfolds.

The plaintiff alleges that after the Corps and NMFS consulted on the operations of the Coyote Valley Dam and NMFS issued a jeopardy biological opinion with reasonable and prudent alternatives, the Corps failed to comply with the terms and conditions of the incidental take statement (ITS) that accompanied the biological opinion. An ITS authorizes take of listed species that is otherwise prohibited under the ESA, but under section 7(o)(2) of the ESA, that authorization is contingent upon compliance with the terms and conditions of the ITS.

Here, the plaintiff argues, the Corps violated both the ESA consultation provisions and its take prohibition when it failed to comply with the terms and conditions of the ITS and continued to operate the Coyote Valley Dam. After the lawsuit was filed, the federal defendants reinitiated consultation and then sought to dismiss the case as moot. In support of their position, federal defendants relied on the declaration of an NMFS official for the proposition that consultation would conclude in March 2024. The court roundly rejected federal defendants’ position, noting that it was still possible for the plaintiff to obtain effective relief.

The outcome of the motion is unremarkable but serves as a reminder that, to prevail on an argument that a case is moot, the moving party normally must show that the controversy is no longer live and the non-moving party cannot obtain any effective relief through the litigation.