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WildEarth Guardians v. United States Army Corps of Engineers

United States District Court, D. New Mexico

August 14, 2018




         Before the Court is the United States Army Corps of Engineers (Corps)'s motion for reconsideration and notice of satisfaction of remand (Doc. 134). For the reasons given below, the Court will deny in part and grant in part Corps's reconsideration motion and amend its previous Opinion accordingly. On remand, Corps has provided sufficient explanation for the remaining activities at issue, so the Court will deny the remainder of plaintiff WildEarth Guardians (Guardians)'s Olenhouse motion. Because Guardians has waived its § 9 claim under the Endangered Species Act (ESA), the Court dismisses that claim with prejudice.


         A more comprehensive background of this litigation and the legal standards involved is set forth in the Court's previous Memorandum Opinion and Order (Doc. 132). In short, Corps takes various actions in the Middle Rio Grande. (Doc. 132 at 5.) Under § 7 of the ESA, Corps must consult with the United States Fish and Wildlife Service (FWS) for any actions that may affect endangered species (or their critical habitats) if Corps holds discretion over those actions. (Id. at 4.) Corps is not consulting and has argued that it has no obligation under § 7 to consult for any action it is currently taking in the region. (See Doc. 124 at 11.)[1]

         Guardians, an environmental advocacy organization, appealed Corps's contention that it has no duty under the ESA to consult with the FWS. In its complaint/petition for review (Complaint), Guardians challenged Corps's compliance with §§ 7 and 9 of the ESA. (Doc. 66 at 36-37.) The parties proceeded to create the administrative record and then brief the § 7 issue. In its briefing, Guardians argued that Corps's decision not to consult over its Middle Rio Grande actions is arbitrary and capricious. (Doc. 120 at 55-56.)

         In its June 6, 2018 Memorandum Opinion and Order, the Court denied most of Guardians's motion because Corps's rationale-reflected in a memorandum created in 2014 (the 2014 Reassessment)-adequately explained Corps's decision not to consult on most of its actions. (Doc. 132 at 2.) The 2014 Reassessment did not, however, explain Corps's decision not to consult about two maintenance activities: flow reduction to inspect Abiquiu Dam tunnel (Abiquiu tunnel) and flushing of the Jemez Canyon stilling basin (Jemez Canyon basin). The Reassessment noted that Corps has discretion over the flow reduction at Abiquiu and flushing of Jemez Canyon basin, and recommended that Corps consult unless it verifies that those activities have no effect on endangered species. (See A.R. 000004 (2014 Reassessment) at 19-20.) There was no evidence in the record that Corps followed the Reassessment's recommendation before deciding not to consult, so the Court reversed Corps's decision not to consult and remanded to Corps for more information. (Doc. 132 at 2.)

         Now Corps provides new information and asks the Court to reconsider its previous Opinion.


         I. Motion for Reconsideration

         “[A] district court always has the inherent power to reconsider its interlocutory rulings.” See Warren v. Am. Bankers Ins., 507 F.3d 1239, 1243 (10th Cir. 1992); Fed.R.Civ.P. 54(b) (providing that a Court many reconsider “any order or other decision, however designated, that adjudicates fewer than all the claims. . . .”). The June 6, 2018 Opinion raised, but did not decide, Guardians's § 9 claim because the Court wanted more information before ruling on the claim. (See Doc. 132 at 4-5; Doc. 133 (text-only notice of hearing).) The June 6, 2018 Opinion was thus an interlocutory order that the Court can reconsider. As such, the Court turns to Corps's arguments for reconsideration.

         Whether maintenance activities were before the Court

         Corps first argues that the maintenance activities at Abiquiu tunnel and Jemez Canyon basin were not before the Court. Because inadequately-briefed arguments are waived, Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998), Corps contends that Guardians waived any argument about maintenance activities at Abiquiu tunnel or Jemez Canyon basin by inadequately briefing those activities. (Doc. 134 at 7.) Corps notes that Guardians did not specifically mention the Abiquiu tunnel or Jemez Canyon basin in its intent to sue, Complaint, or opening Olenhouse brief. (See Doc. 134 at 13-14.)

         While Guardians did not use the words “Abiquiu dam tunnel” or “Jemez Canyon dam stilling basin, ” Guardians's notice of intent to sue indicated that Guardians felt Corps violated § 7 by, among other things, failing to consult on “the ongoing impacts of its discretionary actions in the middle Rio Grande . . . .” (Doc. 134-C at 10 (emphasis added).) Guardians's Complaint requested an order requiring Corps “to take all steps within their discretionary authority necessary to avoid jeopardy to the silvery minnow and willow flycatcher” and “to complete a comprehensive consultation with the FWS on the effects of the full range of their discretionary authority . . . .” (Doc. 66 (Complaint) at 38 (emphasis added).) And Guardians's opening brief not only references Corps's operations in general, but also includes legal citations to support the notion that maintenance activities are fairly in dispute:

[T]he 1990 [Water Resources Development Act] states that “[t]he Secretary [of the Army] shall include environmental protection as one of the primary missions of the Corps of Engineers in planning, designing, constructing, ...

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