Puyallup Tribe of Indians v. Electron Hydro LLC

Opinion

THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 PUYALLUP TRIBE OF INDIANS, CASE NO. C20-1864-JCC 10 Plaintiff, ORDER 11 v. 12 ELECTRON HYDRO, LLC, et al., 13 Defendants. 14

15 This matter comes before the Court on Defendants’ cross-motion for partial dismissal 16 (Dkt. No. 52 at 24–29). Having thoroughly considered the briefing and the relevant record, the 17 Court hereby GRANTS the motion for the reasons explained herein. 18 The Court summarized the background of this case in a recent order disposing of the 19 Puyallup Tribe of Indians’ motion for summary judgment. (See Dkt. No. 78 at 1–3.) In opposing 20 that motion, Defendants cross-moved for dismissal of the Tribe’s claims regarding the yet-to-be 21 constructed bladder spillway. (See Dkt. No. 52 at 24–29.) In their motion, Defendants contend 22 these claims are unripe until the permitting agencies complete the review process and/or 23 construction begins. (Id.) 24 A defendant may move for dismissal under Federal Rule of Civil Procedure 12(b)(1) if 25 the Court lacks subject matter jurisdiction over the claims at issue. “‘Federal courts are courts of 26 limited jurisdiction,’ possessing ‘only that power authorized by Constitution and statute.’” Gunn 1 v. Minton, 568 U.S. 251, 256 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 2 U.S. 375, 377 (1994)). A Rule 12(b)(1) motion to dismiss may raise various obstacles to federal 3 jurisdiction, such as ripeness. Fed. R. Civ. P. 12(b)(1); see St. Clair v. City of Chico, 880 F.2d 4 199, 201 (9th Cir. 1989). The purpose of the ripeness doctrine is to shield federal courts from 5 engaging in premature adjudication and becoming ensnared in abstract disputes. Ohio Forestry 6 Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 736 (1998). A “case is not ripe where the existence of 7 the dispute itself hangs on future contingencies that may or may not occur.” Clinton v. Acequia, 8 Inc., 94 F.3d 568, 572 (9th Cir. 1996). 9 Here, the Tribe alleges that Defendants’ planned construction and operation of a bladder 10 spillway constitutes a take of Chinook salmon, steelhead trout, and bull trout, prohibited under 11 the Endangered Species Act (“ESA”). (See generally Dkt. No. 43.) But at the moment, and as 12 Defendants point out, many steps remain before any of this could occur. (See Dkt. No. 52 at 28.) 13 For example, for ESA purposes, while Electron Hydro, LLC is actively seeking a Section 10 14 incidental take permit, a Habitat Conservation Plan must still be approved, and Section 7 agency 15 consultation must still occur, see 16 U.S.C. §§ 1539(a)(1)(B), 1539(a)(2); moreover, notice and 16 comment is also pending. (Id. at 26–28.) It is entirely possible that the final plan will materially 17 change based on this process. 18 In determining the ripeness of any claim, the Court engages in a two-part test: it considers 19 (1) the fitness of the particular issues for judicial decision, and (2) the hardship to the parties of 20 withholding review. Ohio Forestry Ass’n, Inc., 523 U.S. at 726. Here, both cut in favor of 21 Defendant’s request. Specifically, delaying this Court’s review until the bladder spillway 22 replacement is permitted and finalized would, rather than impose a hardship to the Tribe, allow 23 the Court to better tailor a remedy if one is, in fact, required. At the moment, this is unknown. 24 Fundamentally, it would be premature to subject Defendants’ permit procedure to judicial review 25 before permits resulting in a possible take are complete. See California River Watch v. Cnty. of 26 Sonoma, 55 F. Supp. 3d 1204, 1210 (N.D. Cal. 2014). Nor does the Court see how the mere 1 consideration of the planned spillway by regulating agencies, rather than its construction and 2 operation, harm the Puyallup Tribe’s interest(s). The Tribe will have ample opportunity to mount 3 a legal challenge if and when harm becomes imminent and certain. For now, though, it does not 4 rise beyond speculation. See Thomas v. Anchorage Equal Rights Commn., 220 F.3d 1134, 1141 5 (9th Cir. 2000) (discussing merger of ripeness doctrine with standing considerations). 6 For the foregoing reasons, Defendant’s cross-motion for partial dismissal (Dkt. No. 52 at 7 28) is GRANTED. The Puyallup Tribe’s claims seeking prospective injunctive relief based on 8 the construction and operation of the bladder spillway, (see Dkt. No. 43 at 15–17), are dismissed 9 without prejudice as unripe. 10 Given the recent rulings in this case, and Defendant’s notice of appeal, (see Dkt. No. 79), 11 the parties are further DIRECTED to meet and confer and provide the Court with a joint status 12 report within 7 days of this order addressing what claims remain for this Court’s consideration 13 and/or trial. 14 15 DATED this 21st day of February 2024. A 16 17 18 John C. Coughenour 19 UNITED STATES DISTRICT JUDGE

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