`
`KARL G. ANUTA (OSB #861423)
`kga@integra.net
`Law Office of Karl G. Anuta, P.C.
`735 S.W. First Avenue, 2nd Floor
`Portland, OR 97204
`(503) 827-0320 | Phone
`(503) 228-6551 | Fax
`
`Local Counsel for Plaintiffs
`JANETTE K. BRIMMER (WSB #41271)
`jbrimmer@earthjustice.org
`[Pro Hac Vice Pending]
`Earthjustice
`810 Third Avenue, Suite 610
`Seattle, WA 98104
`(206) 343-7340 | Phone
`(206) 343-1526 | Fax
`
`Attorney for Plaintiffs
`
`
`UNITED STATES DISTRICT COURT
`
`DISTRICT OF OREGON
`
`EUGENE DIVISION
`
`Case No.
`
`COMPLAINT FOR
`DECLARATORY AND
`INJUNCTIVE RELIEF
`
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`
`WATERWATCH OF OREGON, PACIFIC
`COAST FEDERATION OF FISHERMEN’S
`ASSOCIATIONS, INSTITUTE FOR
`FISHERIES RESOURCES, and
`STEAMBOATERS,
`
`
`
`
`
`WINCHESTER WATER CONTROL
`DISTRICT,
`
`Defendant.
`
`
`
`________________________________________
`
`
`
`
`Plaintiffs,
`
`
`
`v.
`
`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF -1-
`
`Earthjustice
`705 Second Ave., Suite 203
`Seattle, WA 98104
`(206) 343-7340
`
`
`
`Case 3:20-cv-01927-IM Document 1 Filed 11/06/20 Page 2 of 16
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`INTRODUCTION
`
`1.
`
`This citizen suit, brought under the Endangered Species Act (“ESA”), 16 U.S.C.
`
`§ 1540(g), seeks to enjoin the Winchester Water Control District, to compel the District to
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`provide adequate fish passage at the Winchester Dam on the North Umpqua River in Oregon.
`
`2.
`
`Winchester Dam is owned and controlled by the Winchester Water Control
`
`District.
`
`3.
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`The Winchester Dam on the North Umpqua River is causing “take” of Oregon
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`Coast coho salmon (“Coast coho”), which are listed as threatened under the ESA, in violation of
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`Sections 4(d) and 9 of the ESA. 16 U.S.C. §1533(d) and 1538(a)(1)(B). The Dam is causing
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`take of Coast coho by among other things: blocking adult salmon migration and access to
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`spawning habitat; harming or killing adult salmon in their efforts to traverse the dam to migrate
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`or spawn; harming or killing juvenile salmon by blocking safe out-migration from spawning and
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`rearing areas; harming or killing adult salmon by the state of disrepair of the fish ladder and dam
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`itself such that salmon are physically battered; and disrepair of the fish ladder including the use
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`of materials on the ladder that include compounds toxic to salmon.
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`JURISDICTION AND VENUE
`
`4.
`
`This Court has jurisdiction over this action pursuant to the ESA citizen suit
`
`provision, 16 U.S.C. § 1540(g).
`
`5.
`
`As required by 16 U.S.C. § 1540(g)(2)(A)(i), plaintiffs, WaterWatch of Oregon,
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`Pacific Coast Federation of Fishermen’s Associations, Institute for Fisheries Resources, and
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`Steamboaters, provided the defendant with notice of the violations described in this complaint by
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`letter dated April 6, 2020 and with an amended notice letter on July 13, 2020. Plaintiffs sent
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`both notices to the defendant by regular first class and certified U.S. mail, return receipt
`
`requested, and by electronic mail to the District’s counsel, Mr. Dominic Carrollo. Plaintiffs also
`Earthjustice
`810 Third Ave., Suite 610
`Seattle, WA 98104
`(206) 343-7340
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`COMPLAINT FOR DECLARATORY AND
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`
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`Case 3:20-cv-01927-IM Document 1 Filed 11/06/20 Page 3 of 16
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`provided a copy of each notice to the Secretary of Commerce, to the National Oceanic and
`
`Atmospheric Association, and to the Oregon Department of Fish and Wildlife. More than 60
`
`days have passed since defendant received both the original and amended notice and defendant
`
`has not responded substantively to either notice.
`
`6.
`
`Venue in this District and Division is proper under 16 U.S.C. § 1540(g)(3)(A), 28
`
`U.S.C. § 1391, and Local Rule 3-2(a)(3), because North Umpqua River and Winchester Dam are
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`located in Douglas County, Oregon.
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`PARTIES
`
`7.
`
`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
`
`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. WaterWatch has been instrumental in dam
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`removal and flow improvement throughout the State, using voluntary agreements, education, and
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`where necessary, litigation in order to protect rivers, their tributaries, and fish. The North
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`Umpqua River is an important salmon and steelhead river with 160 miles of high quality
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`spawning habitat above the Winchester Dam, and of particular concern to WaterWatch are Coast
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`coho salmon, listed as threatened under the ESA, and the impacts on Coast coho from habitat
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`alteration, degradation, and barriers such as dams. WaterWatch has approximately 1,000
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`members in Oregon.
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`8.
`
`WaterWatch members participate in recreational activities such as hiking,
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`backpacking, fishing, wildlife-viewing, and river and lake boating and kayaking throughout
`Earthjustice
`COMPLAINT FOR DECLARATORY AND
`810 Third Ave., Suite 610
`INJUNCTIVE RELIEF - 3 -
`Seattle, WA 98104
`(206) 343-7340
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`
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`Case 3:20-cv-01927-IM Document 1 Filed 11/06/20 Page 4 of 16
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`Oregon, including in and along the Umpqua River. WaterWatch has standing based upon
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`injuries to its members’ interests caused by the Winchester Dam.
`
`9.
`
`Plaintiff Pacific Coast Federation of Fishermen’s Associations (“PCFFA”) is a
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`coastwide trade organization of commercial fishing families that works to protect salmon and
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`salmon habitat from pollution and migration barriers and to promote restoration where salmon
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`habitat and health are degraded. PCFFA’s principal place of business is in San Francisco,
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`California, and an active Northwest Regional Office is also located in Eugene, Oregon. PCFFA
`
`is the largest organization of commercial fishing families on the west coast. It consists of a
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`federation of 17 smaller commercial fishermen’s vessel owners’ associations, trade associations,
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`port associations, and marketing associations with membership throughout Washington, Oregon,
`
`and California. PCFFA also has “at-large” members who are unaffiliated with any particular
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`fishermen’s association but have become individual members of PCFFA. Collectively, PCFFA
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`represents nearly 1,000 west coast commercial fishing family business operations. Many of
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`PCFFA’s members derive all or part of their income from the harvesting of salmon in or near
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`Oregon waters or salmon that originate in Oregon waters such as the North Umpqua River.
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`10.
`
`Salmon originating from the North Umpqua River migrate, once they reach the
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`ocean as juveniles, far south well into northern California waters and far north well into
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`Washington waters, and throughout Oregon waters, where they are available as adults that
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`intermingle in multiple ocean commercial fisheries in all three states. And while there is no
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`longer any directed commercial fishery on ESA-listed Coast coho, the abundance of Coast coho
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`can and does restrict the ability of our industry to harvest other, far more abundant salmon
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`species such as fall-run Chinook, under principles of “weak stock management” which govern all
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`intermingling salmon fisheries on the west coast. Under “weak stock management,” which is
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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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`
`
`Case 3:20-cv-01927-IM Document 1 Filed 11/06/20 Page 5 of 16
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`required by both federal law and the scientific laws of sound conservation biology, it is the
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`conservation needs of the weakest of several intermingling salmon stocks at sea that create the
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`“quota cap” or legal limit on how many other fish of otherwise abundant stocks can be harvested.
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`Since Coast coho are now so weakened in abundance that they have had to become ESA-listed,
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`the low Coast coho abundances at sea act as a severe restriction on all other ocean salmon
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`fisheries, often prematurely closing down these other fisheries in order to conserve weak stock
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`Coastal coho. Fewer Coastal coho surviving the impacts of Winchester Dam only exacerbate
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`these already stringent allocation and ocean harvest restriction problems fishing families face up
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`and down the coastline.
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`11.
`
`PCFFA has standing through its port associations and individual members of
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`those associations whose interests are harmed and whose livelihoods are adversely affected by
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`the Winchester dam’s negative effects on salmon.
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`12.
`
`Institute for Fisheries Resources (“IFR”) is a California non-profit organization
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`that works to protect and restore salmon populations and the human economies that depend on
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`them by establishing alliances among fishing men and women, with government agencies, and
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`with concerned citizens. IFR advocates for reforms to protect salmon health and habitat
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`throughout the U.S. West Coast and has successfully advocated for dam removals, improved
`
`pesticide controls, and enhanced marine and watershed conservation regulations throughout the
`
`West Coast in order to protect inland salmon spawning and rearing habitat. IFR’s principle place
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`of business is in San Francisco, California, and IFR also maintains an active Northwest Regional
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`Office in Eugene, Oregon. Most of IFR’s at least 850 financial contributors are commercial
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`fishermen. IFR and PCFFA have common Board members, general membership, and staff;
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`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF - 5 -
`
`Earthjustice
`810 Third Ave., Suite 610
`Seattle, WA 98104
`(206) 343-7340
`
`
`
`Case 3:20-cv-01927-IM Document 1 Filed 11/06/20 Page 6 of 16
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`however, IFR is a separate organization that focuses on marine resources protection and salmon
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`habitat conservation.
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`13.
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`IFR has standing through its members that are directly and indirectly injured by
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`the Winchester dam’s negative effects on salmon runs.
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`14.
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`Plaintiff Steamboaters is a member-based Oregon non-profit organization based
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`in Idleyld Park, Oregon, whose purpose and mission is to preserve, promote, and restore the
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`natural production of wild fish populations in the North Umpqua River and its tributaries
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`including the habitat for those fish populations, for present and future generations. Steamboaters
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`also actively work to preserve and protect the aesthetic values of the North Umpqua River and to
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`preserve, educate, and promote the sport, ethics, and traditions of fly-fishing on the North
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`Umpqua River. Steamboaters has a current membership of approximately 164 in Oregon.
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`15.
`
`Streamboaters has standing through its members who fish and recreate on and
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`generally enjoy the North Umpqua River whose interests are harmed by the Winchester Dam.
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`16.
`
`Defendant Winchester Water Control District is a quasi-municipal corporation
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`organized under the laws of Oregon, specifically ORS Chapter. 553. Defendant is the owner and
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`operator of the Winchester Dam on the North Umpqua River in Oregon.
`
`BACKGROUND
`
`17.
`
`Coast coho are listed as a threatened species under the Endangered Species Act.
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`50 C.F.R. 223.102. Coast coho were first proposed for listing in July of 1995, 60 Fed. Reg.
`
`38011 (July 25, 1995), and first listed as threatened in May of 1997. 62 Fed. Reg. 24588 (May
`
`6, 1997). The listing was reaffirmed in June of 2005. 70 Fed. Reg. 37160 (June 28, 2005).
`
`18.
`
`Coast coho salmon populations have overall declined precipitously over the past
`
`several decades. Habitat degradation, including blocked or decreased access to habitat and
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`blocked or decreased ability to migrate to and from spawning grounds in tributary streams due to
`Earthjustice
`COMPLAINT FOR DECLARATORY AND
`810 Third Ave., Suite 610
`INJUNCTIVE RELIEF - 6 -
`Seattle, WA 98104
`(206) 343-7340
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`
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`Case 3:20-cv-01927-IM Document 1 Filed 11/06/20 Page 7 of 16
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`man-made or man-caused obstacles, has been a major factor in the decline. In proposing to list
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`Coast coho salmon as threatened under the ESA, the National Marine Fisheries Services
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`(“NMFS”) found that dams and the effects associated with dams such as sedimentation, loss of
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`habitat connectivity, impairment of juvenile and adult migration, injury during migration,
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`impairment of juvenile rearing, and increased stream temperatures were all factors contributing
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`to the decline and supporting the listing of Coast coho salmon as threatened.
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`19.
`
`The North Umpqua River’s headwaters are in the Umpqua National Forest. The
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`River is a prized salmon and steelhead stream. It joins with the South Umpqua a few miles
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`below the Winchester Dam near Roseburg, Oregon and there flows to the ocean. Below the
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`dam, the North Umpqua River is popular for fishing, boating, and it is a drinking water source
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`for the City of Roseburg and the Umpqua Basin Water Association.
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`20.
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`The North Umpqua River is habitat for a variety of anadromous fish, including
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`Coast coho. Areas of the North Umpqua River above the Winchester Dam and its reservoir are
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`prime salmon and steelhead habitat, with up to 160 miles of high-quality habitat above the dam.
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`21.
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`In its 2014 Final Recovery Plan for Coast coho, NMFS identifies barriers such as
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`dams as having a highly negative impact on Coast coho recovery.
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`22.
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`The North Umpqua River is critical habitat for Coast coho salmon, including the
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`river surrounding Winchester Dam.
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`23. Winchester Dam was originally constructed in 1890 as a wood crib dam with an
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`original height of 4 feet. In 1907 the dam was raised to 16 feet and it was later faced with
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`concrete. The 450 foot long dam completely spans the North Umpqua River.
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`24. Winchester Dam provides recreation for homeowners around the reservoir created
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`by the dam. There is no valid water right for water storage for the reservoir. Historical records
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`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF - 7 -
`
`Earthjustice
`810 Third Ave., Suite 610
`Seattle, WA 98104
`(206) 343-7340
`
`
`
`Case 3:20-cv-01927-IM Document 1 Filed 11/06/20 Page 8 of 16
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`show no storage or reservoir rights ever issued for Winchester Dam, though the dam does store
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`water. A water right claim, with a priority date of 1900 for recreational use of water, was filed
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`by defendant over a century after the dam’s original construction for power generation, but that
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`claim has never been adjudicated. According to the water right claim filed by defendant with the
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`Oregon Water Resources Department, Winchester dam and its reservoir are today maintained
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`solely for recreation purposes. The amount of water actually stored by the dam appears, at least
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`at times, to be inconsistent with the amount listed in the claim filed by defendant.
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`25.
`
`The Winchester dam is a passage impediment and hazard for migrating adult and
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`juvenile Coast coho and other salmon and steelhead on the North Umpqua.
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`26.
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`In 1945 a fish ladder was added to the North side of the dam with upgrades in
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`1964 and the early 1980s.
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`27.
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`The fish ladder is a concrete structure designed primarily as a pool and weir
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`design with distinct steps in the water surface elevation. There is a high flow entrance to the
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`ladder and a low flow entrance. The low flow entrance is the primary entrance during most of
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`the year.
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`28.
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`The top of the fish ladder opens into a low-velocity area of the reservoir
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`immediately upstream of the dam crest.
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`29.
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`The fish ladder does not meet the criteria, rationale and guidelines for design of
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`adequate safe, timely, and efficient fish passage published by National Marine Fisheries Service
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`(“NMFS”) and as set forth in Oregon Department of Fish and Wildlife (“ODFW”) Oregon
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`Administrative Rules (OAR), Section 635-412-005 et seq, particularly OAR 635-412-0035.
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`30.
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`The fish ladder fails to meet criteria and requirements for fish passage flows,
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`design geometry, and energy dissipation factor, among others.
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`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF - 8 -
`
`Earthjustice
`810 Third Ave., Suite 610
`Seattle, WA 98104
`(206) 343-7340
`
`
`
`Case 3:20-cv-01927-IM Document 1 Filed 11/06/20 Page 9 of 16
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`31.
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`The dam and fish ladder also fail to meet criteria and requirements due to
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`numerous false attraction flows attributable to both the design of the ladder and leakage through
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`the face of the dam.
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`32.
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`The placement of the fish ladder on the far north side of the dam near bedrock in
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`the river makes it difficult for fish to find. That placement also results in injury to fish from
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`falling to the bedrock, when attempting to navigate the inadequate ladder.
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`33.
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`There is no dedicated downstream fish passage for juveniles, meaning that they
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`either must somehow find the fish ladder or they must go over the top of the dam. Juveniles
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`going over the face of the dam near or at the location of the bedrock are likely injured on the
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`bedrock below.
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`34.
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`The inadequate design and placement of the fish ladder and the false attraction
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`flows at the dam face causes delay, harm, injury, and stress that adversely affect spawning and
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`migration in Coast coho salmon.
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`35. Winchester dam and the ladder are also in a state of disrepair and in further
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`deteriorating condition. The dam has consistently, and continues to date, experienced significant
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`leakage through the dam structure itself and in particular in an area of the dam immediately next
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`to the fish ladder. The disrepair contributes to and exacerbates the inadequacy and harmful
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`effects of the fish ladder and Winchester dam on Coast coho salmon.
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`36.
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`ODFW has noted that Winchester dam’s current condition significantly hinders
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`upstream passage for Coast coho salmon and the fish ladder does not meet current criteria for
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`jump heights, water velocities, or attraction flows. As a result, ODFW has also noted that
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`upstream adult passage at Winchester Dam is only possible under certain specific ideal flow
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`conditions.
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`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF - 9 -
`
`Earthjustice
`810 Third Ave., Suite 610
`Seattle, WA 98104
`(206) 343-7340
`
`
`
`Case 3:20-cv-01927-IM Document 1 Filed 11/06/20 Page 10 of 16
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`37. Materials used in repairs or updates to the fish ladder and dam appear to include
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`materials or chemical compounds such as those found in treated wood that are hazardous to
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`salmon, including Coast coho salmon.
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`38.
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`Attempts to repair the deteriorating Winchester dam and ladder have themselves
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`harmed Coast coho salmon. For example, in 2018, ODFW documented a fish kill resulting from
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`attempts to repair a large hole under the dam. NMFS subsequently informed ODFW that based
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`in the information ODFW collected, harm to Coast coho salmon could be assumed. The Oregon
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`Department of Environmental Quality (“DEQ”) then investigated and determined that the
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`defendant’s repairs - which took place during Coast coho salmon migration - violated state water
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`quality standards and caused pollution, killing fish and other aquatic species. DEQ issued a civil
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`penalty in connection with the repairs, because the North Umpqua River is important habitat for
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`threatened Oregon Coast coho salmon and several other sensitive species.
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`39.
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`The 2018 dam repair work, as well as repairs in 2013, 2009, 2006 and 1999, was
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`done with no permits under either the Endangered Species Act, or the Clean Water Act, or state
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`water quality laws.
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`40.
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`Defendant is maintaining a dam and causing water to be stored behind a dam for
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`which they have no valid storage or diversion right under Oregon water law. Under Oregon law,
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`specifically ORS 537.130, ORS 537.211, and ORS 537.400-407, a person may not construct a
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`dam or other obstruction for water diversion or storage without first applying for and receiving a
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`valid water right.
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`41.
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`Oregon’s fish passage statutes, ORS 509.585(2) & ORS 509.610(3), require that
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`defendant remove or provide adequate fish passage over Winchester Dam.
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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 3:20-cv-01927-IM Document 1 Filed 11/06/20 Page 11 of 16
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`42.
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`In 2019, ODFW updated its list of priorities for fish barriers that are a problem
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`and need improvement. ODFW identified the Winchester Dam on North Umpqua River as a
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`barrier and hazard for fish, such as listed Coast coho, and identified Winchester Dam as a
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`“Group 1” priority, placing it as the second highest priority privately-owned barrier statewide for
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`enforcement actions based on the needs of native migratory fish.
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`43.
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`The Winchester Dam is causing take of Coast coho by one or more of the
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`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 salmon in their efforts to traverse the dam to migrate or
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`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 salmon by the state of disrepair of the fish ladder and/or
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`the dam itself such that salmon are physically battered, impaled or injured on
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`parts of the dam and ladder; and
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` harming or killing adult salmon through the disrepair of the fish ladder including
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`the use of materials on the ladder that include compounds toxic to salmon.
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`44.
`
`Douglas County property records show the Winchester Dam is owned, operated,
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`and controlled by defendant.
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`CAUSES OF ACTION
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`COUNT I (Take Of Listed Species)
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`45.
`
`Plaintiffs restate and reallege all preceding paragraphs.
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`
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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 3:20-cv-01927-IM Document 1 Filed 11/06/20 Page 12 of 16
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`46.
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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).
`
`47.
`
`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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`48.
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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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`49.
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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 Coast coho salmon.
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`50 C.F.R. § 223.203. Under 16 U.S.C. § 1538(a)(1)(G), it is unlawful to take threatened Coast
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`coho salmon in violation of the Section 4(d) regulation.
`
`50.
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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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`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF - 12 -
`
`Earthjustice
`810 Third Ave., Suite 610
`Seattle, WA 98104
`(206) 343-7340
`
`
`
`Case 3:20-cv-01927-IM Document 1 Filed 11/06/20 Page 13 of 16
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`51.
`
`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).
`
`52.
`
`Defendant, as the owner of Winchester Dam, has violated and continues to violate
`
`the take prohibitions in Section 9 of the ESA by failing to remove the dam or provide adequate
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`fish passage at the dam as required by Oregon law, which failure has caused and continues to
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`cause harm, harassment, injury and death to Coast coho salmon.
`
`53.
`
`Defendant is maintaining a dam and causing water to be stored behind a dam for
`
`which they have no valid storage or diversion right under Oregon water law. Under Oregon law
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`a person may not construct a dam or other obstruction for water diversion or storage without first
`
`applying for and receiving a valid water right. See generally ORS §§ 537.130, 537.211, and
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`537.400-407.
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`54.
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`Oregon’s fish passage statute requires that defendant remove or provide adequate
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`fish passage over Winchester Dam. See ORS 509.585(2) (“a person owning or operating an
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`artificial obstruction may not construct or maintain any artificial obstruction across any waters of
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`this state that are inhabited . . .by native migratory fish without providing passage for native
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`migratory fish”); and ORS 509.610(3) (“A person owning or operating an artificial obstruction is
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`responsible for maintaining, monitoring, and evaluating the effectiveness of fish passage or
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`alternatives to fish passage”).
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`55.
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`Defendant’s failure to either provide adequate fish passage or to remove
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`Winchester Dam is the proximate cause of unlawful take of Coast coho.
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`56.
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`Defendant is liable for the unlawful take of Coast coho salmon in North Umpqua
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`River and plaintiffs are entitled to an Order enjoining defendant from continued take of Coast
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`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF - 13 -
`
`Earthjustice
`810 Third Ave., Suite 610
`Seattle, WA 98104
`(206) 343-7340
`
`
`
`Case 3:20-cv-01927-IM Document 1 Filed 11/06/20 Page 14 of 16
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`coho salmon, requiring either removal of the dam or provision of adequate fish passage with
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`repairs to the dam adequate to end and prevent ongoing harm to fish.
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`57.
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`Plaintiffs are entitled to recovery of their attorney fees and litigation expenses for
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`preparing and bringing this litigation, pursuant to 16 U.S.C. § 1540(g)(4).
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`COUNT II—(Intentional Take Of Listed Species)
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`Plaintiffs restate and reallege all preceding paragraphs.
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`Defendant has on several occasions been informed that the Winchester Dam is
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`58.
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`59.
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`killing and injuring salmon that are listed as threatened under the ESA.
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`60.
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`Defendant has been approached several times, most recently by plaintiff
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`WaterWatch, with requests and offers of assistance for removal of the Winchester Dam.
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`61.
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`Defendant has refused to remove the dam, has failed to remove the dam, and has
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`failed to provide adequate fish passage at Winchester Dam.
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`62.
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`Defendant is intentionally maintaining a structure that kills and injures Coast coho
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`salmon in violation of 16 U.S.C. § 1538. These intentional acts are the proximate cause of
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`unlawful take of Coast coho salmon.
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`63.
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`Defendant is liable for the intentional unlawful take of Coast coho salmon in
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`North Umpqua River and plaintiffs are entitled to an Order enjoining defendant from continued
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`take of Coast coho salmon, including requiring the removal of the dam or provision of adequate
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`fish passage with repairs to the dam adequate to end and prevent ongoing harm to fish.
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`64.
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`Defendant is, as a result of its intentional take actions, liable for civil penalties
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`pursuant to 16 U.S.C. § 1540(a).
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`
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`WHEREFORE, plaintiffs request an order from this Court:
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`REQUEST FOR RELIEF
`
`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF - 14 -
`
`Earthjustice
`810 Third Ave., Suite 610
`Seattle, WA 98104
`(206) 343-7340
`
`
`
`Case 3:20-cv-01927-IM Document 1 Filed 11/06/20 Page 15 of 16
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`A.
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`Declaring that defendant has violated the salmon 4(d) rule, 50 C.F.R. § 223.203
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`and the Endangered Species Act, 16 U.S.C. § 1538(a)(1)(G), and 1538(1)(B) by failing to
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`provide adequate fish passage at the Winchester Dam and/or by failing to remove the Winchester
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`Dam;
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`B.
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`Enjoining defendant from continuing to maintain the Winchester Dam in a
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`manner that violates section 9 of the Endangered Species Act, 16 U.S.C. § 1538(a)(1)(G), and
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`1538(1)(B), because of defendant’s failure to provide adequate fish passage and requiring either
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`removal of Winchester Dam or construction of adequate fish passage as defined by the most
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`recent NMFS and ODFW criteria and the best commercially available fish passage science and
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`engineering criteria with repairs to the dam adequate to end and prevent ongoing harm to fish,
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`within 6 months of the court’s order;
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`C.
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`Enjoining defendant from continuing to use Winchester Dam to store water in the
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`reservoir created by the dam without a permit in a manner that violation section 9 of the
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`Endangered Species Act, 16 U.S.C. § 1538(a)(1)(G), and 1538(1)(B), and requiring either
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`removal of the dam or adequate fish passage with repairs to the dam adequate to end and prevent
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`ongoing harm to fish;
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`D.
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`Imposing civil penalties on defendant for violations of section 9 of the
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`Endangered Species Act pursuant to 16 U.S.C. § 1540(a);
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`D.
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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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`E.
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`Granting such other and further relief as the court deems just and equitable.
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`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF - 15 -
`
`Earthjustice
`810 Third Ave., Suite 610
`Seattle, WA 98104
`(206) 343-7340
`
`
`
`Case 3:20-cv-01927-IM Document 1 Filed 11/06/20 Page 16 of 16
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`Respectfully submitted this 6th day of November, 2020.
`
`_
`
`
`
`
`
`
`s/ Karl G. Anuta
`KARL G. ANUTA (OSB #861423)
`kga@integra.net
`Law Office of Karl G. Anuta, P.C.
`735 S.W. First Avenue, 2nd Floor
`Portland, Oregon 97204
`(503) 827-0320 | Phone
`(503) 228-6551 | Fax
`
`Local Counsel for Plaintiffs
`
`
`JANETTE K. BRIMMER (WSB #41271)
`jbrimmer@earthjustice.org
`[Pro Hac Vice Pending]
`Earthjustice
`810 Third Avenue, Suite 610
`Seattle, WA 98104
`(206) 343-7340 | Phone
`
`Attorneys for Plaintiffs
`
`
`
`
`
`
`
`
`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF - 16 -
`
`Earthjustice
`810 Third Ave., Suite 610
`Seattle, WA 98104
`(206) 343-7340
`
`