Case 1:22-cv-00907-CL Document 1 Filed 06/22/22 Page 1 of 12
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`MOLLY TACK-HOOPER (OSB #212147)
`mtackhooper@earthjustice.org
`Earthjustice
`810 Third Avenue, Suite 610
`Seattle, WA 98104
`(206) 343-7340 | Phone
`
`Local Counsel for Plaintiff
`
`JANETTE K. BRIMMER (WSB #41271)
`[Pro Hac Vice Application Pending]
`jbrimmer@earthjustice.org
`Earthjustice
`810 Third Avenue, Suite 610
`Seattle, WA 98104
`(206) 504 3459 | Phone
`
`Attorney for Plaintiff
`
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`UNITED STATES DISTRICT COURT
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`DISTRICT OF OREGON
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`MEDFORD DIVISION
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`INTRODUCTION
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`1.
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`This citizen suit, brought under the Endangered Species Act (“ESA”), 16 U.S.C.
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`§ 1540(g), seeks to enjoin the Defendants to implement measures to eliminate “take” of Southern
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`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF - 1 -
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`Earthjustice
`810 Third Ave., Suite 610
`Seattle, WA 98104
`(206) 343-7340
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`Case No.
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`COMPLAINT FOR
`DECLARATORY AND
`INJUNCTIVE RELIEF
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`WATERWATCH OF OREGON,
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`Plaintiff,
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`v.
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` Q
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` BAR X RANCH, JACQUELINE M.
`DOHERTY, MARY L. ANDRADE, JANINE M.
`PFOHL, and WILLIAM T. PFOHL,
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`Defendants.
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`

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`Case 1:22-cv-00907-CL Document 1 Filed 06/22/22 Page 2 of 12
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`Oregon/Northern California Coast Coho Salmon (“Southern Oregon Coast Coho”) at Pomeroy
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`Dam and its associated water diversion system on the Illinois River in Oregon.
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`2.
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`Pomeroy Dam (the “Dam”) and its associated water diversion system is owned,
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`operated, and/or controlled by each of the Defendants, jointly and singly.
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`3.
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`The Pomeroy Dam and its associated water diversion system on the Illinois River
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`is causing “take” of Southern Oregon Coast Coho, which are listed as threatened under the ESA,
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`in violation of Sections 4(d) and 9 of the ESA. 16 U.S.C. § 1533(d) & 1538(a)(1)(B). The Dam
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`is causing take of Southern Oregon Coast Coho by among other things: blocking or impeding
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`adult salmon migration and access to spawning and rearing habitat; harming or killing adult
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`salmon in their efforts to traverse the Dam to migrate or spawn; causing conditions that raise
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`temperatures in the stream to levels that stress and/or injure, and/or kill Southern Oregon Coast
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`Coho; causing conditions that pool and slow down the river upstream of the Dam that increase
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`predation of juvenile Southern Oregon Coast Coho; and unscreened and/or inadequate screening
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`of water diversions from the Dam, causing salmon to be stranded and be injured or die in
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`irrigation canals and ditches.
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`JURISDICTION AND VENUE
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`4.
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`This Court has jurisdiction over this action pursuant to the ESA citizen suit
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`provision, 16 U.S.C. § 1540(g).
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`5.
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`As required by 16 U.S.C. § 1540(g)(2)(A)(i), plaintiff WaterWatch of Oregon
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`provided the Defendants with notice of the violations described in this complaint by letter dated
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`January 11, 2022 (with an amended carbon copy list of recipients on January 12, 2022). Plaintiff
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`sent both notices to Defendants by regular first class and by certified U.S. mail, return receipt
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`requested. Plaintiff also provided a copy of each notice to the Secretary of Commerce, to the
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`National Oceanic and Atmospheric Association, and to the Oregon Department of Fish and
`COMPLAINT FOR DECLARATORY AND
`Earthjustice
`810 Third Ave., Suite 610
`INJUNCTIVE RELIEF - 2 -
`Seattle, WA 98104
`(206) 343-7340
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`

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`Case 1:22-cv-00907-CL Document 1 Filed 06/22/22 Page 3 of 12
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`Wildlife. Plaintiff also provided a copy of the notice to the U.S. Attorney’s Office and the
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`Department of Homeland Security. More than 60 days have passed since Defendants received
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`both the original and amended notice and no Defendant has responded to the notice.
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`6.
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`Venue in this District and Division is proper under 16 U.S.C. § 1540(g)(3)(A), 28
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`U.S.C. § 1391, and Local Rule 3-2(a)(3), because the Illinois River and Pomeroy Dam are
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`located in Josephine County, Oregon.
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`PARTIES
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`7.
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`WaterWatch of Oregon (“WaterWatch”) is a non-profit conservation organization
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`dedicated, since 1985, to the protection and restoration of streamflows in Oregon’s rivers and
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`streams in order to sustain native fish, wildlife, and aquatic ecosystems as well as the people and
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`communities who depend on healthy rivers. WaterWatch is incorporated and has its
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`headquarters in the State of Oregon. WaterWatch has worked for over 35 years in river basins
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`around the State of Oregon to restore salmon and stream flows, including work to remove
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`significant fish passage barriers such as dams. A number of those dams have been in the Rogue
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`River and tributaries of the Rogue River. WaterWatch has been instrumental in dam removal
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`and flow improvement throughout the State, using voluntary agreements, education, and where
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`necessary, litigation in order to protect rivers, their tributaries, and fish. WaterWatch funds at
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`least one staff member almost full time and funds other staff members part time, to work on
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`matters related to dams and other fish passage barriers in the State of Oregon. Dam and barrier
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`removal is an integral part of WaterWatch’s overall work as an organization.
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`8.
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`The Illinois River is a federally designated wild and scenic river and is, in turn, a
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`major tributary to the wild and scenic Rogue River. The Illinois and Rogue are both important
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`salmon rivers. There are 100 miles of high-quality spawning and rearing habitat above the
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`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF - 3 -
`
`Earthjustice
`810 Third Ave., Suite 610
`Seattle, WA 98104
`(206) 343-7340
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`

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`Case 1:22-cv-00907-CL Document 1 Filed 06/22/22 Page 4 of 12
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`Pomeroy Dam. Southern Oregon Coast Coho, listed as threatened under the ESA, are present in
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`the Illinois River.
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`9.
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`WaterWatch has approximately 1,000 members in Oregon. WaterWatch
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`members participate in recreational activities such as hiking, backpacking, fishing, wildlife-
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`viewing, and river and lake boating and kayaking throughout Oregon, including in and along the
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`Illinois and Rogue Rivers. More specifically, WaterWatch members fish and boat in the Rogue
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`River and some of its tributaries. Members fish for all types of salmon as well as steelhead.
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`Fishing has been and is negatively affected by threats to salmon including to Southern Oregon
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`Coast Coho, especially since the Southern Oregon Coast Coho have been listed as threatened.
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`WaterWatch has standing based upon injuries to its members’ interests caused by the Pomeroy
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`Dam’s impacts on salmon.
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`10.
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`Defendants Jacqueline Doherty, Mary Andrade, Janine Pfohl, and William Pfohl
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`(collectively the “Individual Defendants”) are individual residents of the State of Oregon with an
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`address of 900 West Side Road, Kerby, Oregon, and they are owners and operators of the
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`Pomeroy Dam and some, or all, are principals of Defendant Q Bar X Ranch.
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`11.
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`Q Bar X Ranch is the business entity owner of Pomeroy Dam and/or operated by
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`the Individual Defendants. Q Bar X Ranch is licensed and registered under the laws of the State
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`of Oregon with a principal place of business address of 900 West Side Road, Kerby, Oregon and
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`an authorized representative mailing address of P.O. Box 3210, Kerby, Oregon.
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`BACKGROUND
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`12.
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`Southern Oregon Coast Coho Salmon are listed as a threatened species under the
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`Endangered Species Act. 50 C.F.R. § 223.102. Southern Oregon Coast Coho were first
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`proposed for listing in July of 1995, 60 Fed. Reg. 38,011 (July 25, 1995), and first listed as
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`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF - 4 -
`
`Earthjustice
`810 Third Ave., Suite 610
`Seattle, WA 98104
`(206) 343-7340
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`

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`Case 1:22-cv-00907-CL Document 1 Filed 06/22/22 Page 5 of 12
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`threatened in May of 1997. 62 Fed. Reg. 24,588 (May 6, 1997). The listing was reaffirmed in
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`June of 2005. 70 Fed. Reg. 37,160 (June 28, 2005).
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`13.
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`Southern Oregon Coast Coho populations have overall declined precipitously
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`over the past several decades. Habitat degradation, including blocked or decreased access to
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`habitat and blocked or decreased ability to migrate to and from spawning grounds in tributary
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`streams due to man-made or man-caused obstacles, has been a major factor in the decline. In
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`proposing to list Southern Oregon Coast Coho as threatened under the ESA, the National Marine
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`Fisheries Services (“NMFS”) found that dams and the effects associated with dams such as
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`sedimentation, loss of habitat connectivity, impairment of juvenile and adult migration, injury
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`during migration, impairment of juvenile rearing, and increased stream temperatures were all
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`factors contributing to the decline and supporting the listing of Southern Oregon Coast Coho as
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`threatened.
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`14.
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`In its 2014 Final Recovery Plan for Southern Oregon Coast Coho, NMFS
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`identifies barriers such as dams as having a highly negative impact on Southern Oregon Coast
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`Coho recovery.
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`15.
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`The Illinois River is a federally-designated wild and scenic river and a tributary to
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`the also federally-designated wild and scenic Rogue River. Most of the Illinois River lies in
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`National Forests, including its headwaters above the Pomeroy Dam. The Illinois River is a
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`popular fishing and recreation river and an important river of Southern Oregon Coast Coho.
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`16.
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`Areas of the Illinois River above the Pomeroy Dam and its reservoir are prime
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`salmon habitat, with up to 100 miles of high-quality spawning and rearing habitat above the
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`Dam.
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`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF - 5 -
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`Earthjustice
`810 Third Ave., Suite 610
`Seattle, WA 98104
`(206) 343-7340
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`

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`Case 1:22-cv-00907-CL Document 1 Filed 06/22/22 Page 6 of 12
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`17.
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`The Illinois River is critical habitat for Southern Oregon Coast Coho, including
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`the river surrounding Pomeroy Dam. 64 Fed. Reg. 24,062 (May 5, 1999).
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`18.
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`Pomeroy Dam is located at approximately river mile 56, near West Side Road on
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`the Illinois River. Pomeroy Dam is an approximately 7 feet tall concrete structure whose sole
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`function is to divert water into a canal system for irrigation purposes. Pomeroy Dam completely
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`spans the Illinois River and it has no fish passage.
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`19.
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`Pomeroy Dam is operated to divert water into canals and ditches located on Q Bar
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`X Ranch.
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`20.
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`Pomeroy Dam’s diversion function could be replaced by modern fish-friendly
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`methods of diverting water to canals and ditches located on Q Bar X Ranch.
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`21.
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`The Pomeroy Dam is a passage impediment and hazard for migrating adult and
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`juvenile Southern Oregon Coast Coho on the Illinois River. The passage impediment and Dam
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`hazards impede migration and spawning as well as causing direct harm to Southern Oregon Cost
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`Coho.
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`22.
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`The Pomeroy Dam also harms Southern Oregon Coast Coho by creating stream
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`conditions that cause increased temperatures.
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`23.
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`High stream temperatures stress and harm, and if high enough, can kill Southern
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`Oregon Coast Coho.
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`24.
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`The Pomeroy Dam also harms Southern Oregon Coast Coho by creating pool
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`conditions that lead to increased predation on juvenile outmigrating salmon.
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`25.
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`Defendants’ operation of Pomeroy Dam and its associated water diversion
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`infrastructure, including the attendant series of water diversions, inadequately screened, poorly
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`designed and/or poorly maintained canals and/or ditches, and return flows, is falsely attracting,
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`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF - 6 -
`
`Earthjustice
`810 Third Ave., Suite 610
`Seattle, WA 98104
`(206) 343-7340
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`

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`Case 1:22-cv-00907-CL Document 1 Filed 06/22/22 Page 7 of 12
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`injuring, diverting, and stranding Southern Oregon Coast Coho, causing harm to Southern
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`Oregon Coast Coho.
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`26.
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`The Pomeroy Dam does not meet the criteria, rationale, and guidelines for design
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`of adequate safe, timely, and efficient fish passage published by NMFS and as set forth in
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`Oregon Department of Fish and Wildlife (“ODFW”) Oregon Administrative Rules (OAR),
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`Section 635-412-005 et seq., particularly OAR 635-412-0035.
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`27.
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`Due to this harmful impact, in 2019, the most recent update of the Statewide Fish
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`Passage Priority List, ODFW listed Pomeroy Dam as the highest priority for fish passage
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`correction among privately-owned dams in Oregon (Group 1).
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`28.
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`Oregon’s fish passage statutes, ORS 509.585(2) and ORS 509.610(3), require that
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`Defendants remove or provide adequate fish passage over Pomeroy Dam.
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`29.
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`The problems with Pomeroy Dam that harm, injure, and kill fish are continuing in
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`nature, with WaterWatch having observed the conditions described as recently as April of 2022.
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`30.
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`Over the course of the preceding several years, WaterWatch has attempted to
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`engage Defendants to reach a voluntary agreement to remove Pomeroy Dam. Specifically,
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`WaterWatch has requested a voluntary agreement by Defendants to allow WaterWatch to engage
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`funding and contractors to remove the Pomeroy Dam and provide adequate and safe replacement
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`for the Dam’s diversion function, at no cost to Defendants.
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`31. WaterWatch has extensive experience with obtaining funding and working with
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`expert contractors on dam removal throughout Oregon.
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`32. WaterWatch’s experience with reaching out to Defendants causes WaterWatch to
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`be concerned that Defendants will refuse and fail to respond to this Complaint and/or to any
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`order of this Court to remove or fix the Pomeroy Dam.
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`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF - 7 -
`
`Earthjustice
`810 Third Ave., Suite 610
`Seattle, WA 98104
`(206) 343-7340
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`

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`Case 1:22-cv-00907-CL Document 1 Filed 06/22/22 Page 8 of 12
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`CAUSE OF ACTION
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`Take Of ESA-Listed Species
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`33. WaterWatch restates and realleges all preceding paragraphs.
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`34.
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`The ESA prohibits any person from “taking” an endangered species. 16 U.S.C. §
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`1538(a)(1)(B). The ESA defines “take” as “to harass, harm, pursue, hunt, shoot, wound, kill,
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`trap, capture, or collect or attempt to engage in any such conduct.” 16 U.S.C. § 1532(19).
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`35.
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`By regulation, NMFS has defined “harm” to include:
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`Significant habitat modification or degradation which actually kills or injures fish
`or wildlife by significantly impairing essential behavioral patterns, including,
`breeding, spawning, rearing, migrating, feeding or sheltering.
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`50 C.F.R. § 222.102. “Harassment” includes unintentional acts that make it more difficult for an
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`endangered species to breed, feed, shelter, reproduce or raise its offspring. H.R. Rep. No. 412,
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`93rd Cong. 1st Sess. At 11 (1973); 50 C.F.R. § 17.3.
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`36.
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`NMFS has also determined that its definition of “harm” is consistent with the
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`definition of “harm” in regulations promulgated by the U.S. Fish and Wildlife Service which
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`definition includes failure to act where a person has a duty to do so in order to avoid or prevent
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`the harm.
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`37.
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`Under Section 4(d) of the ESA, 16 U.S.C. § 1533(d), NMFS has the authority to
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`issue regulations extending the take prohibition to threatened species. NMFS has adopted a
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`regulation pursuant to Section 4(d) making the take prohibition applicable to Southern Oregon
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`Coast Coho. 50 C.F.R. § 223.203. Under 16 U.S.C. § 1538(a)(1)(G), it is unlawful to take
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`threatened Southern Oregon Coast Coho in violation of the Section 4(d) regulation.
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`38.
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`NMFS regulations define “harm” that is a take of listed species to include
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`significant habitat modification or degradation which actually kills or injures fish or wildlife by
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`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF - 8 -
`
`Earthjustice
`810 Third Ave., Suite 610
`Seattle, WA 98104
`(206) 343-7340
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`

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`Case 1:22-cv-00907-CL Document 1 Filed 06/22/22 Page 9 of 12
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`significantly impairing essential behavioral patterns, including, breeding, spawning, rearing,
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`migrating, feeding or sheltering. 50 C.F.R. § 222.102.
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`39.
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`The ESA take prohibition applies to all “persons.” 16 U.S.C. § 1538(a)(1). The
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`ESA defines a “person” to include an individual, corporation, partnership, trust, association or
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`any other private entity. 16 U.S.C. § 1532(13). The defendant in this case is a “person” as
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`defined by the ESA.
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`40.
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`The ESA citizen suit provision authorizes suits to enforce the ESA and its
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`implementing regulations against any person who is alleged to be in violation of any provision of
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`the ESA or regulations implementing the ESA. 16 U.S.C. § 1540(g).
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`41.
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`Oregon’s fish passage statute requires that Defendant remove or provide adequate
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`fish passage over Pomeroy Dam. See ORS 509.585(2) & ORS 509.610(3).
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`42.
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`The Pomeroy Dam and its associated water diversion system is causing take of
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`Southern Oregon Coast Salmon by one or more of the following:
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`• blocking and/or delaying adult salmon migration and access to spawning habitat;
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`• harming or killing adult Southern Oregon Coast Coho in their efforts to traverse
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`the Dam to migrate or spawn;
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`• harming or killing juvenile salmon by blocking and/or delaying out-migration
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`from spawning and rearing areas;
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`• harming or killing adult Southern Oregon Coast Coho by creating conditions that
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`raise stream temperatures;
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`• harming or killing juvenile Southern Oregon Coast Coho by creating a reservoir
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`pool that increases predation; and
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`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF - 9 -
`
`Earthjustice
`810 Third Ave., Suite 610
`Seattle, WA 98104
`(206) 343-7340
`
`

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`Case 1:22-cv-00907-CL Document 1 Filed 06/22/22 Page 10 of 12
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`• through the operation of the Pomeroy Dam and its attendant series of water
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`diversions, poorly designed and/or maintained canals and/or ditches, and return
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`flows, is falsely attracting, injuring, and stranding Southern Oregon Coast Coho.
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`43.
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`Defendants, as the owners and operators of Pomeroy Dam and its associate water
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`diversion system, have individually and together violated and continue to violate the take
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`prohibitions in Section 9 of the ESA by failing to remove the Dam or provide adequate fish
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`passage at the Dam and operate it and its associated water diversion system in a manner that
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`avoids take, which failure has caused and continues to cause harm, harassment, injury and death
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`to Southern Oregon Coast Coho.
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`44.
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`Defendants’ failure to either to remove Pomeroy Dam or provide adequate fish
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`passage and safe operation of the Dam and its associated water diversion system is the proximate
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`cause of unlawful take of Southern Oregon Coast Coho.
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`45.
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`Defendants are liable for the unlawful take of Southern Oregon Coast Coho in the
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`Illinois River and WaterWatch is entitled to an Order enjoining Defendants from continued take
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`of Southern Oregon Coast Coho, requiring either removal of the Dam or provision of adequate
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`fish passage with repairs to the Dam and associated diversion system adequate to end and
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`prevent ongoing harm to fish.
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`46. WaterWatch is entitled to recovery of their attorney fees and litigation expenses
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`for preparing and bringing this litigation, pursuant to 16 U.S.C. § 1540(g)(4).
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`WHEREFORE, plaintiffs request an order from this Court:
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`REQUEST FOR RELIEF
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`A.
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`Declaring that Defendants have, individually and together, violated the salmon
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`4(d) rule, 50 C.F.R. § 223.203 and the Endangered Species Act, 16 U.S.C. § 1538(a)(1)(G), and
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`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF - 10 -
`
`Earthjustice
`810 Third Ave., Suite 610
`Seattle, WA 98104
`(206) 343-7340
`
`

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`Case 1:22-cv-00907-CL Document 1 Filed 06/22/22 Page 11 of 12
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`1538(1)(B) by failing to provide adequate fish passage and safe operation at the Pomeroy Dam
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`and its associated water diversion system and/or by failing to remove the Pomeroy Dam;
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`B.
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`Enjoining Defendants from continuing to maintain or operate the Pomeroy Dam
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`and its associated water diversion system in a manner that violates section 9 of the Endangered
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`Species Act, 16 U.S.C. § 1538(a)(1)(G) and 1538(1)(B), because of Defendants’ failure to
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`provide adequate fish passage, and requiring Defendants to exercise due diligence in either
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`removal of Pomeroy Dam or construction of adequate fish passage as defined by the most recent
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`NMFS and ODFW criteria and the best commercially available fish passage science and
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`engineering criteria with repairs to the Dam and the associated water diversion system adequate
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`to end and prevent ongoing harm to fish, within the immediately next available in-water work
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`window, as defined by ODFW and NMFS;
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`C.
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`Ordering Defendants to report to the Court and WaterWatch on the progress of
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`the work ordered in subpart B above, on the following schedule:
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`• Within 30 days of the Court’s order, proof of retention of an engineer with
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`experience and expertise in dam removal and fish passage;
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`• Within 90 days of the Court’s order provide plan and a design from the engineer
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`of the proposed work sufficient to commence project permitting;
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`• Within 180 days of the Court’s order, in consultation with the engineer, secure a
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`construction contractor with experience and expertise in dam removal and fish
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`passage and provide copies of applications for all permits needed to implement
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`the work;
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`• Report every 30 days thereafter on the progress of securing the necessary permits
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`and progress of the work until it is completed;
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`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF - 11 -
`
`Earthjustice
`810 Third Ave., Suite 610
`Seattle, WA 98104
`(206) 343-7340
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`

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`Case 1:22-cv-00907-CL Document 1 Filed 06/22/22 Page 12 of 12
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`• Within 360 days of the court order, complete removal of the Dam and
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`modification and/or replacement of the Q Bar X diversion and canal system to
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`protect Southern Oregon Coast Coho.
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`D.
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`Should Defendants fail to timely comply with any requirement under subparts B
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`and C above, ordering Defendants to allow WaterWatch and WaterWatch’s employees, agents,
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`and contractors access to the Pomeroy Dam, the associated diversion system, and Q Bar X Ranch
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`property for the purposes of removing the Dam and eliminating harm caused by the diversion
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`and canal system to protect Southern Oregon Coast Coho;
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`E.
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`Awarding plaintiffs their costs and attorneys’ fees pursuant to 16 U.S.C. §
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`1540(g)(4); and
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`Granting such other and further relief as the court deems just and equitable.
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`F.
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`Respectfully submitted this 22nd day of June, 2022.
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`
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`__________________________________
`JANETTE K. BRIMMER (WSB #41271)
`[Pro Hac Vice Application Pending]
`jbrimmer@earthjustice.org
`Earthjustice
`810 Third Avenue, Suite 610
`Seattle, WA 98104
`(206) 504 3459 | Phone
`
`Attorney for Plaintiff
`
`MOLLY TACK-HOOPER (OSB #212147)
`mtackhooper@earthjustice.org
`Earthjustice
`810 Third Avenue, Suite 610
`Seattle, WA 98104
`
`Local Counsel for Plaintiff
`
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`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF - 12 -
`
`Earthjustice
`810 Third Ave., Suite 610
`Seattle, WA 98104
`(206) 343-7340
`
`