MEMORANDUM DECISION AND ORDER GRANTING MOTION TO DISMISS COMPLAINT AS MOOT (Doc. 10) AND DENYING MOTION TO AMEND AS FUTILE (Doc. 18)

LAWRENCE J. O'NEILL, District Judge.

I. CONTINUED ANALYSIS OF MOTION TO DISMISS

The operative Complaint in this case, filed November 19, 2015 by the Center for Environmental Science, Accuracy & Reliability ("CESAR" or "Plaintiff"), seeks declaratory and injunctive relief against construction and operation of an Emergency Drought Salinity Barrier at West False River ("Salinity Barrier" or "the Project"1) by the California Department of Water Resources ("DWR" or "Defendant"). Doc. 1. The Complaint also seeks to require the U.S. Fish and Wildlife Service ("FWS") to "reinitiate consultation of the 2008 Biological Opinion on the Coordinated Operations of the Central Valley Project [] and State Water Project [] . . . due to changed circumstances, to wit, the construction and operation of the Project by [DWR]." Id. at ¶ 2. Plaintiff claims that the Salinity Barrier was installed and operated without following procedures necessary to prevent "take" under the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq, of the ESA-listed delta smelt. See id. ¶¶ 46-72. It is undisputed that the Salinity Barrier was installed in May 2015 and completely removed by DWR as of November 15, 2015. Id. at ¶¶ 12, 14, 34.

Before the Court for decision is DWR's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Doc. 12. The Court took the matter under submission on the papers pursuant to Local Rule 230(g). On March 4, 2016, the Court issued a Memorandum Decision and Order denying DWR's motion on certain grounds and requesting supplemental briefing on the issue of mootness. Doc. 22 ("March 4, 2016 Order"). This Memorandum Decision and Order should be read in conjunction with the March 4, 2016 Order, which the Court incorporates by reference.

In the March 4, 2016 Order, the Court held the case is technically moot. Id. at 10. Plaintiff relies on the exception to mootness for "wrongs capable of repetition yet evading review," by arguing that there is a "reasonable expectation" that the "drought barriers" will be reconstructed. See Doc. 12 at 3. This exception "permit[s] suits for prospective relief to go forward despite abatement of the underlying injury [in] exceptional situations where the following two circumstances [are] simultaneously present: (1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action again." Fed. Elec. Com'n v. Wisconsin Right to Life, Inc., 551 U.S. 449, 462 (2007) (internal citations, quotations, and footnote omitted); see also San Luis & Delta-Mendota Water Auth. v. United States, 672 F.3d 676, 703 (9th Cir. 2012); San Luis & Delta-Mendota Water Auth. v. U.S. Dep't of the Interior, 870 F.Supp.2d 943, 959 (E.D. Cal. 2012).

The March 4, 2016 Order found that, at least as of that date, the record revealed a "demonstrated probability" that a drought barrier may be needed in 2016. Doc. 22 at 12. The Court then explained:

Id. (emphasis in original). The Court set a briefing schedule for supplemental filings. On March 16, 2016, Defendant filed a supplemental brief, Doc. 24, along with the Declaration of John Leahigh ("Leahigh Decl."). Doc. 25. On March 23, 2016, Plaintiff filed a responsive brief, Doc. 26, along with the Declaration of Dr. Rob R. Ramey ("Ramey Decl."), Doc. 28, and numerous supporting documents. Doc. 27. Having reviewed the entire record, the Court concludes that this case is moot and that the "wrongs capable of repetition yet evading review" exception does not apply.

As the Court explained in the March 4, 2016 Order, the first factor relevant to that exception — whether the duration of the challenged action is too short to allow for complete litigation — is satisfied here:

Doc. 22 at 11 (footnote omitted).

It is the second factor — whether there is a reasonable expectation that the same complaining party would be subjected to the same action again — that is dispositive. Plaintiff invokes the standard of proof applicable where the voluntary conduct of a defendant renders a case moot. The Supreme Court has recognized that, "as a general rule, voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot." Los Angeles Cty. v. Davis, 440 U.S. 625, 631 (1979) (internal citation and quotation omitted). However, even in the case of voluntary cessation, dismissal for lack of jurisdiction may be appropriate if (1) there is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. Id. Yet, here, it was the planned termination of a temporary project that mooted this case, so the voluntary cessation doctrine does not apply. See Colorado Wild, Inc. v. U.S. Forest Serv., No. 05-cv-01175-JLK-DLW, 2008 WL 4453426, at *5 (D. Colo. Sept. 30, 2008) (voluntary cessation exception to the mootness doctrine does not apply where temporary permit expired by its own terms).2 Outside the context of voluntary cessation, it is Plaintiff's burden to "make a reasonable showing that he will again be subjected to the alleged illegality." City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983); see also Vegas Diamond Properties, LLC v. F.D.I.C., 669 F.3d 933, 936 (9th Cir. 2012) (citing Lyons for this proposition).3 Plaintiff has failed to meet this burden, particularly in light of DWR's submissions to the contrary.4

According to John Leahigh, Chief of the State Water Project ("SWP") Water Operations Office within DWR, the Salinity Barrier constructed in the summer of 2015 was the first such barrier to be constructed since the last severe drought in the late 1970s. Leahigh Decl. at ¶ 11. Because of record low reservoir storage at the end of 2015, in "an abundance of caution" on October 27, 2015, DWR began the process of applying for the necessary permits to construct the Salinity Barrier again in the spring of 2016. Id. at ¶¶ 12-13. However, hydrologic conditions changed dramatically in early March 2016. Id. at ¶ 18. According to Leahigh "[a]ccumulated monthly precipitation in the northern Sierra through March 14 [was] 203% of historical March averages," and "[s]torage gains in SWP and [Central Valley Project] reservoirs have been equally impressive, with gains of over two million acre-feet since March 1." Id. In sum, "[a]ll SWP and CVP Sacramento Valley reservoirs are now above historical averages for this time of year." Id. As a result, "[i]t is now abundantly clear that storage levels will be adequate this year and that a salinity barrier is no longer needed." Id. at ¶ 19. DWR has withdrawn its relevant permit applications to the U.S. Army Corps of Engineers and the State Water Resources Control Board. Id. at 19 & Ex. A, p. 1. Leahigh states in no uncertain terms that DWR "will not build a salinity barrier in 2016." Id. at ¶ 19.

DWR acknowledges in a letter attached to the Leahigh Declaration that "[a]lthough a salinity barrier is not required for this year, much of California . . . remains in an extreme [] or exceptional [] drought." Id. at Ex. A, p. 2. Therefore, DWR's letter indicates that planning should proceed for the installation of salinity barriers as necessary in the future. Id. DWR plans to "continue to discuss with the regulatory agencies the issuance of a programmatic (long term) permit to install a salinity barrier at West False River in 2017 and beyond as part of a more comprehensive multi-year drought contingency planning effort." Id. "DWR anticipates invoking the standard [ESA] Section 7 consultation process for the programmatic permit." Id. This last fact is critical to evaluating mootness in the context of this case. As mentioned in the March 4, 2016 Order, Plaintiff's chief complaint in this case is that the approval process for the installation of the Salinity Barrier in 2015 utilized the ESA's emergency consultation procedures, rather than the standard ESA Section 7 consultation process. DWR's evidence now demonstrates that emergency consultation procedures will not be utilized in 2016 and that DWR does not intend to use them in 2017 or beyond.

Plaintiff acknowledges that DWR has stated its intent to continue to request a programmatic consultation, but emphasizes that DWR provides no information as to the status of that consultation. Doc. 26 at 3-4. Plaintiff argues that DWR's statement that it is "interested in continuing to discuss a programmatic permit" is "entirely without evidentiary value." Id. at 4. But, Plaintiff ignores DWR's more direct statement that it "anticipates invoking the standard Section 7 consultation process for the programmatic permit." Leahigh Decl., Ex. A, p. 2. While far from a concrete timeline, this is a statement of intent from an agency of the State of California. The spring of 2017 is still a full year away. Plaintiff has failed to demonstrate that it is implausible that the standard Section 7 consultation process could be initiated and completed within the time remaining.5 Taking DWR's official at its word, emergency consultation procedures will not be invoked in 2017 or beyond. As DWR is undoubtedly aware, should emergency consultation procedures again be invoked in connection with the installation of a salinity barrier, any subsequent challenge is likely to end up litigated before this Court as a related case and DWR's prior positions will likely become relevant to any future mootness analysis.

DWR's motion to dismiss the operative complaint as moot is GRANTED.

II. PENDING MOTION TO AMEND/LEAVE TO AMEND

On March 3, 2016, while the motion to dismiss was pending, Plaintiff filed a motion to amend, attaching a proposed first amended complaint ("FAC") that attempted to clarify some issues relevant to the motion to dismiss. In particular, the FAC described Plaintiff's knowledge and belief as of March 3, 2016, that DWR was planning to re-install the drought barrier in 2016. Doc. 18. The March 4, 2016 Order determined that it would be appropriate to hold the motion to amend in abeyance while the motion to dismiss was pending. Now that the motion to dismiss has been resolved, the Court also concludes that permitting the filing of the FAC would be futile, as the facts alleged therein are outdated. Moreover, the Court cannot fathom how the complaint could be amended to cure its deficiencies. See Ctr. for Biological Diversity v. Veneman, 394 F.3d 1108, 1114 (9th Cir. 2005) (upon dismissal for lack of subject matter jurisdiction, court should grant leave to amend unless it is clear beyond a doubt that amendment would be futile).

III. CONCLUSION

For the reasons set forth above:

(1) DWR's motion to dismiss the operative complaint as moot is GRANTED;

(2) Plaintiff's motion to amend is DENIED as FUTILE; and

(3) the Clerk of Court is directed to CLOSE THIS CASE.

IT IS SO ORDERED.