Lauren M. Rule (OSB #015174) 

Elizabeth H. Zultoski (OSB #105482) 

ADVOCATES FOR THE WEST 

3115 NE Sandy Blvd., Ste. 223 

Portland, OR 97232 

(503) 914-6388 

lrule@advocateswest.org 

ezultoski@advocateswest.org 

Attorneys for Plaintiffs 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

EUGENE DIVISION

CENTER FOR BIOLOGICAL DIVERSITY, Case No. 15-2358 

 

 Plaintiff, COMPLAINT FOR 

 DECLARATORY AND 

 v. INJUNCTIVE RELIEF 

 

U.S. BUREAU OF RECLAMATION 

 Defendant, 

 

Case 6:15-cv-02358-TC Document 1 Filed 12/18/15 Page 1 of 24
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF -- 1 

INTRODUCTION

1. Plaintiff Center for Biological Diversity challenges the U.S. Bureau of 

Reclamation’s continuing operation and maintenance of Crane Prairie Dam and Reservoir and 

Wickiup Dam and Reservoir for violating the Endangered Species Act (“ESA”) due to impacts 

on Oregon spotted frog populations in the Upper Deschutes Basin of central Oregon. Oregon 

spotted frog is a threatened species under the ESA, and changes to normal water flows caused by 

operation of Crane Prairie and Wickiup dams impairs Oregon spotted frogs and their habitat 

around the reservoirs and downstream along the Upper Deschutes River. 

2. Crane Prairie reservoir is upstream of Wickiup reservoir, and water flows from 

Crane Prairie into Wickiup before being released into the Deschutes River. These reservoirs 

have significantly altered the normal hydrology of the Upper Deschutes River by storing water in 

winter and then releasing it in summer for irrigation purposes. 

3. The changes to the normal river flows caused by these dams and reservoirs create 

fluctuations in water levels that adversely impact spotted frogs and their habitat. These unnatural 

water flows reduce spotted frog breeding and rearing habitat around the reservoirs and 

downstream along the Deschutes River, and often leave egg masses and tadpoles stranded and 

desiccated. Low river flows in winter also reduce overwintering habitat for spotted frogs 

downstream of the reservoirs. Additionally, the water manipulation makes it difficult for frogs to 

disburse between sites, creating isolated sub-populations that have little genetic exchange. 

4. The impacts from Crane Prairie and Wickiup dams and reservoirs have reduced 

the abundance, distribution, and genetic diversity of Oregon spotted frog populations in the 

Upper Deschutes River Basin, and have injured or killed individual frogs, egg masses and 

tadpoles. BOR has not completed consultation with U.S. Fish and Wildlife Service over impacts 

Case 6:15-cv-02358-TC Document 1 Filed 12/18/15 Page 2 of 24
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF -- 2 

to Oregon spotted frog from operation and maintenance of the Crane Prairie and Wickiup 

facilities, yet continues to operate those facilities in ways that significantly harm Oregon spotted 

frogs and their habitat. 

5. BOR’s continued operation and maintenance of Crane Prairie and Wickiup dams 

and reservoirs in ways that harm Oregon spotted frog and degrade its habitat without completing 

consultation with U.S. Fish and Wildlife Service violates the ESA. Plaintiff thus seeks 

declaratory and injunctive relief under the ESA’s citizen suit provision to remedy these 

violations of law and provide protections to Oregon spotted frogs in the Upper Deschutes River 

Basin until the necessary consultation is completed. 

6. Additionally, in the course of investigating this case, Plaintiff sent BOR a request 

for information under the Freedom of Information Act (“FOIA”). Because BOR unlawfully 

withheld a significant amount of public information from its response to Plaintiff’s request, 

Plaintiff also seeks declaratory and injunctive relief under FOIA and asks the Court to order the 

release of the unlawfully withheld information. 

JURISDICTION AND VENUE 

7. Jurisdiction is proper in this Court under 28 U.S.C. § 1331 because this action 

arises under the laws of the United States, including the ESA, 16 U.S.C. § 1531 et seq., FOIA, 5 

U.S.C. § 552, and the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. An actual, justiciable 

controversy exists between the parties, and the requested relief is therefore proper under 16 

U.S.C. § 1540(g), 5 U.S.C. § 552(a)(4)(B), and 28 U.S.C. §§ 2201-02. 

8. Venue is proper in this Court under 16 U.S.C. § 1540(g)(3)(A) because the 

violations occurred in this judicial district. Venue is proper under 5 U.S.C. § 552(a)(4)(B) 

because Plaintiff Center for Biological Diversity resides in this district. 

Case 6:15-cv-02358-TC Document 1 Filed 12/18/15 Page 3 of 24
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF -- 3 

9. The federal government waived sovereign immunity in this action pursuant to 16 

U.S.C. § 1540(g)(1) and 5 U.S.C. § 552(a)(4)(B). 

10. As required by the ESA, Plaintiff provided sixty days’ notice of its intent to bring 

this action. 

11. As required by FOIA, Plaintiff exhausted its administrative remedies prior to 

bringing this action. 

PARTIES 

12. Plaintiff CENTER FOR BIOLOGICAL DIVERSITY (“the Center”) is a nonprofit organization with more than 48,000 active members and with offices in Oregon and 

elsewhere across the country. The Center and its members are concerned with the conservation 

of imperiled species, including the Oregon spotted frog, and the effective implementation of laws 

to protect those species and their habitat. The Center’s staff and members use the area around 

Wickiup and Crane Prairie reservoirs and the Deschutes River downstream of those reservoirs 

for wildlife observation, educational, recreational, and aesthetic purposes, and plan to continue to 

use those areas in the future for those same purposes. Operations of the Crane Prairie and 

Wickiup dams and reservoirs that harm Oregon spotted frog and degrade its habitat impair the 

use and enjoyment of these areas by the Center’s staff and members. 

13. The Center uses FOIA to gather information about listed species, including 

Oregon spotted frog, and impacts to those species from federal activities. The Center uses this 

information to inform its staff and members, as well as the public, about such impacts. Improper 

withholding of public information from FOIA responses such as occurred here injures The 

Center’s staff and members by withholding records that would otherwise help inform The Center 

about impacts from the operation of Crane Prairie and Wickiup dams to Oregon spotted frog in 

Case 6:15-cv-02358-TC Document 1 Filed 12/18/15 Page 4 of 24
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF -- 4 

order to better protect that species. 

14. Plaintiff’s interests have been and will continue to be directly harmed by 

Defendant’s actions as challenged herein. Unless the relief prayed for herein is granted, Plaintiff 

and the public will continue to suffer irreparable harm and injury to their interests. 

15. Defendant U.S. BUREAU OF RECLAMATION is an agency or instrumentality 

of the United States, under the U.S. Department of Interior, and owns, operates, and maintains 

the federal dams and reservoirs at issue here. 

STATEMENT OF LAW 

Endangered Species Act 

16. The ESA was enacted to “provide a means whereby the ecosystems upon which 

endangered species and threatened species depend may be conserved [and] to provide a program 

for the conservation of such [] species.” 16 U.S.C. § 1532(b). 

17. U.S. Fish and Wildlife Service or National Marine Fisheries Service (“Services”) 

must list a species as endangered under the ESA if it is in danger of going extinct throughout all 

or a significant portion of its range, and must list it as threatened if it is likely to become 

endangered in the foreseeable future. 16 U.S.C. §§ 1532(6), (20); 1533(a)(1). 1 Once species are 

listed as threatened or endangered, the Services must designate their critical habitat, which is 

occupied or unoccupied habitat that contains physical or biological features essential to the 

conservation of the species and which may require special management considerations or 

protection. 16 U.S.C. §§ 1532(5), 1533(a)(3). 

18. A federal agency that authorizes, funds, or carries out an activity that may affect 

 

1

 U.S. Fish and Wildlife Service is responsible for consultations involving terrestrial species, 

such as the Oregon spotted frog, while National Marine Fisheries Service is responsible for 

consultations involving marine species, such as salmon and steelhead. 

Case 6:15-cv-02358-TC Document 1 Filed 12/18/15 Page 5 of 24
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF -- 5 

a listed species must consult with the Services over the impacts of that activity to ensure that it 

does not jeopardize the continued existence of the species or result in the destruction or adverse 

modification of critical habitat. 16 U.S.C. § 1536(a)(2). Jeopardize means to engage in an 

action that reasonably would be expected, directly or indirectly, to reduce appreciably the 

likelihood of both the survival and recovery of the species in the wild by reducing the 

reproduction, numbers, or distribution of the species. 50 C.F.R. § 402.02. 

19. During the ESA consultation process, if the action agency concludes in a 

“biological assessment” that the activity is “not likely to adversely affect” the listed species or 

adversely modify its critical habitat, and the Service concurs with that conclusion, then the 

consultation is complete. 50 C.F.R. §§ 402.12, 402.14(b). If, however, the action agency or the 

Service determines that the activity is “likely to adversely affect” the listed species or its critical 

habitat, then the Service completes a “biological opinion” to determine whether the activity will 

jeopardize the species or result in destruction or adverse modification of critical habitat. Id. § 

402.14. If the Service determines that the action will jeopardize the species or adversely modify 

critical habitat, it may propose one or more reasonable and prudent alternative actions that would 

avoid such results. 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(g)(5). 

20. In addition to the substantive duty under ESA Section 7 to avoid jeopardizing a 

species or adversely modifying critical habitat, action agencies also have a duty, while the 

consultation process is occurring, to avoid making any irreversible or irretrievable commitment 

of resources with respect to the agency action which has the effect of foreclosing the formulation 

or implementation of any reasonable and prudent alternative measures that would avoid 

jeopardizing the species or adversely modifying critical habitat. 16 U.S.C. § 1536(d). 

21. In addition, the ESA and its regulations prohibit “take” of listed species, including 

Case 6:15-cv-02358-TC Document 1 Filed 12/18/15 Page 6 of 24
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF -- 6 

Oregon spotted frog, where take includes harassing, harming, wounding, or killing the species. 

16 U.S.C. §§ 1538, 1532(19) (prohibiting take of endangered species); 50 C.F.R. § 17.31(a) 

(extending take prohibition to threatened species). Harm is further defined to include significant 

habitat modification or degradation that kills or injures a listed species by significantly impairing 

essential behavioral patterns, including breeding, rearing, migrating, feeding, or sheltering. 50 

C.F.R. § 17.3. 

22. The Service can authorize take of a listed species through an “Incidental Take 

Statement” that accompanies a biological opinion if the taking is incidental to an otherwise 

lawful activity and does not cause jeopardy to the species. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 

402.14(i). Any taking that conforms to the terms and conditions within an Incidental Take 

Statement is not prohibited under Section 9 of the ESA. 16 U.S.C. § 1536 (o)(2); 50 C.F.R. § 

402.14(i)(5). 

23. Once the consultation is complete, the agencies have a duty to insure that it 

remains valid. Reinitiation of consultation is required and shall be requested by the action 

agency or the Service if: (a) the amount or extent of taking specified in the incidental take 

statement is exceeded; (b) new information reveals effects of the action that may affect listed 

species or critical habitat in a manner or to an extent not previously considered; (c) the identified 

action is subsequently modified in a manner that causes an effect to the listed species or critical 

habitat that was not considered in the biological opinion; or (d) a new species is listed or critical 

habitat designated that may be affected by the identified action. 50 C.F.R. § 402.16. 

Freedom of Information Act 

24. FOIA allows the public to request public information from federal agencies, and 

requires agencies to make those records promptly available. 5 U.S.C. § 552(a)(3)(A). An 

Case 6:15-cv-02358-TC Document 1 Filed 12/18/15 Page 7 of 24
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF -- 7 

agency must respond to a FOIA request within twenty working days, or within thirty working 

days if there are unusual circumstances. Id. § 552(a)(6)(A)-(B). 

25. An agency may withhold information from its FOIA response under nine specific 

exemptions. Id. § 552(b)(1)-(9). Under exemption 5, an agency may withhold information if it 

constitutes “inter-agency or intra-agency memorandums or letters which would not be available 

by law to a party other than an agency in litigation with the agency.” Id. § 552(b)(5). If 

exempted material is reasonably segregable from a record, the agency must redact the exempted 

portion and release the remainder of the record. Id. § 552(b). 

26. FOIA requires that an agency notify a requestor of the right to appeal any adverse 

determination by the agency with regard to the denial of requested information. Id. § 

552(a)(6)(A)(i). Department of Interior regulations allow for such appeals when the agency 

denies or partially denies a request. 43 C.F.R. § 2.58. The Department must make a 

determination with respect to any such appeal within twenty working days after receipt of the 

appeal. 5 U.S.C. § 552(a)(6)(A)(ii); 43 C.F.R. § 2.62. A ten-day extension of that deadline is 

allowed in unusual circumstances only if the agency provides the requestor written notice of the 

need for the ten-day extension, the reasons explaining the unusual circumstances, and the date on 

which a determination is expected to be dispatched. 5 U.S.C. § 552(a)(6)(B)(i); 43 C.F.R. § 

2.62. 

27. A requestor is deemed to have exhausted his administrative remedies if the 

agency fails to comply with the applicable time limits under FOIA. Id. § 552(a)(6)(C)(i). 

STATEMENT OF FACTS 

I. Oregon Spotted Frog in the Upper Deschutes Basin. 

28. The Oregon spotted frog was listed under the ESA as a threatened species on 

Case 6:15-cv-02358-TC Document 1 Filed 12/18/15 Page 8 of 24
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF -- 8 

August 29, 2014. 79 Fed. Reg. 51,658.2 This species is the most aquatic native frog in the 

Pacific Northwest, and occupies wetlands at the margins of streams, lakes, ponds, and reservoirs. 

29. Historically, this species ranged from British Columbia to northeastern California. 

Its distribution has shrunk, however, and now it occurs only in disjunct populations near Puget 

Sound and along the Cascade Mountains from southern Washington to the Klamath Basin of 

Oregon. The final listing rule noted that the current range of the Oregon spotted frog is 

significantly smaller than the historical range, with an estimated 76-90% of its historical range 

no longer occupied. 

30. U.S. Fish and Wildlife Service listed the Oregon spotted frog as threatened due 

to the following factors: (1) habitat necessary to support all life stages continues to be impacted 

or destroyed by human activities that cause loss of wetlands, including hydrologic changes 

resulting from operation of existing water diversions/manipulation structures; (2) predation by 

non-native species; (3) inadequate regulatory mechanisms that result in significant negative 

impacts such as habitat loss and modifications; and (4) small and isolated breeding locations, low 

connectivity, low genetic diversity within occupied sub-basins, and high genetic differentiation 

between sub-basins. 

31. In Oregon, very few populations are left west of the Cascade crest (found in just 

two of twelve historically occupied sub-basins), and the species is considered extirpated from the 

Willamette Valley. East of the Cascades, Oregon spotted frogs are found in eight sub-basins, 

including the Upper Deschutes River sub-basin. 

32. Spotted frogs in the Upper Deschutes River sub-basin occur in high-elevation 

 

2

 U.S. Fish and Wildlife Service also issued a proposed rule for designation of Oregon spotted 

frog critical habitat, but has not yet issued a final rule. The proposed rule included critical 

habitat in the Upper Deschutes basin both above and below Wickiup reservoir. 78 Fed. Reg. 

53,538 (Aug. 29, 2013). 

Case 6:15-cv-02358-TC Document 1 Filed 12/18/15 Page 9 of 24
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF -- 9 

lakes, wetland ponds, and riverine wetlands and oxbows along the Deschutes River. At least 

four areas around Crane Prairie Reservoir are used by Oregon spotted frogs for breeding, rearing, 

and overwintering, with two sites currently containing more than 100 breeding females. There is 

less suitable habitat around Wickiup Reservoir, and thus fewer spotted frogs have been detected 

in that area. Six egg masses were observed at one site on the edge of Wickiup and a slightly 

larger number found along the arm of the Deschutes River between Crane Prairie and Wickiup. 

33. Five known Oregon spotted frog breeding sites occur along the 61 miles of Upper 

Deschutes River between Wickiup Dam and Bend, Oregon: Dead Slough, La Pine State Park 

SW, Sunriver, Slough Camp (two wetlands on opposite sides of the river), and the Old Mill 

pond. Juvenile spotted frogs have also been found at Bull Bend, about three miles below 

Wickiup Dam, indicating a likely sixth breeding site. 

34. With the exception of the Sunriver site, 50 or fewer breeding females occur at 

each site along the river. U.S. Fish and Wildlife Service has stated that existing spotted frog 

populations on the Deschutes River below Wickiup Dam are small and extremely disjunct 

(separated by more than ten miles), and therefore at risk of extirpation. 

35. The Sunriver site, which has more than 700 breeding females, has weirs to control 

water levels that allow for sufficient water at breeding locations during the entire breeding 

period. U.S. Fish and Wildlife Service has noted that the maintenance of water levels during this 

time period is a key factor in the persistence of a robust population of Oregon spotted frogs. 

36. This species has a life history that requires four types of habitat: spring breeding 

and rearing habitat, summer foraging habitat, winter habitat, and dispersal habitat. Because 

Oregon spotted frogs are highly aquatic during each life stage, each of these habitat types 

requires some amount of water. 

Case 6:15-cv-02358-TC Document 1 Filed 12/18/15 Page 10 of 24
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF -- 10 

37. Females often lay eggs at the same breeding sites year after year due to the 

specific requirements of breeding habitat. They deposit eggs amongst herbaceous vegetation in 

shallow water (2-12 inches deep) over gently sloping ground with ample exposure to the sun, 

often in areas that are seasonally flooded and become dry by late summer. Breeding in the 

Upper Deschutes Basin can occur anytime between mid-March and early May, with “breeding” 

consisting of the time period between females entering the breeding habitat, laying eggs, and the 

eggs hatching. Hatching usually occurs within about 17 days of egg laying, depending on the 

water temperature. 

38. Rearing occurs from early April through early September, and consists of the time 

between hatching of tadpoles and metamorphosis into juvenile frogs, which usually takes about 

four months. Tadpoles move into deeper, permanently flooded areas as summer progresses and 

water recedes. Because breeding occurs in shallow water, eggs and tadpoles are vulnerable to 

desiccation if water levels drop before tadpoles are ready to move to deeper water. Falling water 

levels can strand the entire cohort of egg masses for that year. 

39. After breeding and rearing, post-metamorphic juveniles and adult frogs inhabit 

wetlands with moderate to dense emergent vegetation for feeding and basking, and use deeper 

pools for escape cover. Predators of Oregon spotted frogs include bullfrogs, trout, snakes, 

herons, cranes, kingfishers, and raccoons. 

40. Juvenile and adult spotted frogs overwinter in well-oxygenated water that persists 

throughout the winter, such as springs, side channels, and beaver ponds. This habitat must 

provide sheltering locations that protect frogs from predators and freezing. Movement into 

overwinter habitat can begin as early as mid-September and use of this habitat can last until midMarch. Fluctuations of water levels in winter can be particularly hard on spotted frogs because 

Case 6:15-cv-02358-TC Document 1 Filed 12/18/15 Page 11 of 24
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF -- 11 

they have low energy at this time of year, making movement to other suitable areas difficult. 

41. Due to the aquatic nature of Oregon spotted frogs, these various seasonal habitats 

must have surface water connections for frogs to move between them. Surface water 

connections must also exist for frogs to disperse to other breeding sites or other populations. 

II. Impacts of Crane Prairie and Wickiup Dams and Reservoirs. 

42. Changes in water levels at critical periods in the Oregon spotted frog’s life cycle 

can negatively affect the species. High water levels can overly inundate wetlands, which reduces 

the amount of shallow wetlands that are necessary for breeding. In contrast, low water levels can 

leave breeding and rearing habitat dry and unusable or cause eggs and tadpoles to become 

stranded and desiccated. Changes in water level can also reduce overwintering habitat, when 

spotted frogs need deep, well-oxygenated water to survive the winter. 

43. Wickiup Dam was constructed in 1949, significantly altering the hydrology of the 

Deschutes River. The reservoir behind the dam can hold up to 200,000 acre-feet of water, and 

the upstream Crane Prairie Reservoir can hold an additional 55,000 acre-feet. These facilities are 

managed together to store up to 255,000 acre-feet of water in winter and then release flows in 

spring and summer for irrigation purposes. 

44. The final listing rule for Oregon spotted frog stated that threats to the species 

include “changes in hydrology due to construction of dams and human-related alterations to 

seasonal flooding,” and that “damming and diverting water for irrigation needs has resulted in 

the loss of wetlands within the Upper Deschutes.” 79 Fed. Reg. at 51,688. The listing rule 

identified changing water levels at critical periods in the Oregon spotted frog’s life cycle as a 

negative effect on breeding and reproduction. Id. at 51,669. Specifically, “regulated water 

releases from Crane Prairie and Wickiup Reservoirs result in extreme seasonal fluctuations in 

Case 6:15-cv-02358-TC Document 1 Filed 12/18/15 Page 12 of 24
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF -- 12 

stream flows that have affected the amount of overwintering and breeding habitat available for 

Oregon spotted frogs.” Id. at 51,670. 

45. Prior to construction of Wickiup Dam, the Deschutes River had stable flows of 

about 730 cubic feet per second (cfs) in summer and 660 cfs in winter. Water storage in the 

reservoirs during winter and water releases in spring and summer result in extremely low winter 

flows of about only 20-30 cfs and high summer flows of about 1400 cfs. Low flows generally 

occur October to April each year. 

46. These dams adversely affect Oregon spotted frog in numerous ways, both around 

the reservoirs and downstream in the Deschutes River. 

47. Changes in water levels within the reservoirs affects breeding habitat at the edge 

of the reservoirs. Rising water levels during the breeding season can flood perimeter wetland 

breeding habitat, creating water depths that are greater than what frogs prefer at egg laying sites 

and/or flushing egg masses out of emergent vegetation into open water where they are vulnerable 

to predators. Over the past several years, water levels in Crane Prairie Reservoir have risen 

during the breeding season, which flushed egg masses out of breeding habitat and into open 

water of the reservoir. 

48. When the irrigation season begins, water releases into the river drop reservoir 

levels, which dewaters shallow wetland breeding habitat at the edge of the reservoirs. Where 

frogs have already deposited eggs, the drop in water level strands and desiccates egg masses or 

tadpoles. Egg mass stranding was observed in 2014 and 2015 in wetlands along the Deschutes 

arm above Wickiup Reservoir. If breeding has not occurred yet, low water levels can prevent or 

significantly reduce breeding at that site for that year. 

49. The continued drop in reservoir water level over the course of the spring dewaters 

Case 6:15-cv-02358-TC Document 1 Filed 12/18/15 Page 13 of 24
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF -- 13 

rearing habitat, either stranding tadpoles and juvenile frogs or forcing tadpoles to migrate to 

other areas before metamorphosis is complete, both of which increase mortality. In most years, 

water levels in the reservoirs drop below what is needed for rearing habitat before the end of the 

metamorphosis period. 

50. Dropping reservoir levels during irrigation season also dries out summer foraging 

habitat, forcing frogs out of prime feeding and basking habitat and into other refugia, which 

increases energy expenditure and exposes frogs to predators. Likewise, the reservoirs often do 

not fill early enough in fall to inundate overwintering habitat before frogs start moving to that 

habitat, forcing them into small areas with less cover, increasing predation and mortality rates. 

51. For frog populations along the Deschutes River below Wickiup Dam, storage of 

water in the reservoirs from mid-October to mid-April creates flows in the Deschutes River that 

are 1/10 their historic base flows. During the rapid drop in fall water levels at the start of the 

storage season, juvenile and adult frogs have been observed stranded on dry land or in isolated 

pockets of water that are not suitable for overwinter habitat. Juveniles in particular are not likely 

to move overland to the main river channel and thus have a high mortality risk if they are 

stranded. 

52. For example, juvenile frogs were observed this fall stranded in off-channel pools 

after Deschutes River flows were lowered, with no aquatic connection to overwinter habitat. 

These pools dried up or froze while juvenile frogs were still there, almost certainly leading to 

mortality of those frogs. 

53. Other observations of spotted frog habitat along the Upper Deschutes during 

water storage conditions this fall showed that low river flows in winter dewater most of the offchannel and stream edge wetland habitat as well as beaver ponds and runs, thereby eliminating 

Case 6:15-cv-02358-TC Document 1 Filed 12/18/15 Page 14 of 24
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF -- 14 

most overwinter habitat along the river. Instead, frogs must use small areas within the main river 

channel that have slower water velocity for overwinter habitat, where predators are also present 

and there is minimal cover. 

54. Although water levels in the river are generally very low in winter, fluctuations 

have occurred several times per winter in the past several years. These sporadic changes to flow 

rates forces frogs to move around to find suitable locations within the main channel at a time 

when they have low energy and movement is difficult. Then when irrigation water is suddenly 

released in spring, flows rise too quickly to allow frogs to safely transition from overwinter 

habitat in the main channel to off-channel breeding habitat. 

55. Additionally, releases of irrigation water that do not begin until mid-April or later 

usually do not occur in time to inundate breeding areas along the river. This makes available 

breeding habitat unusable or strands egg masses that were deposited earlier in the spring, which 

can result in reproductive failure at a site for an entire season. 

56. Surveys during the past three years at breeding sites along the Deschutes River 

below Wickiup Dam found desiccated egg masses at some sites while other sites were 

completely dry and unusable for breeding because water had not yet been released from the 

reservoir. For instance, in 2015 water levels were too low for breeding at much of the East 

Slough Camp site during most of the breeding season, significantly reducing breeding potential 

at that site. In 2014, egg mass stranding was observed for a period of two weeks at that same 

site, and the Bull Bend site had too little water for breeding. The timing of irrigation releases in 

spring causes unsuitable breeding conditions below Wickiup Dam for all or most of every 

breeding season. 

57. Extreme fluctuations in river flows has also altered the channel morphology of the 

Case 6:15-cv-02358-TC Document 1 Filed 12/18/15 Page 15 of 24
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF -- 15 

Upper Deschutes River, causing loss of sinuosity, increased bank erosion, and deposition of 

sediment that has filled in and cut off channels between the river and emergent wetlands along 

the river’s edge. Accordingly, these off-channel wetlands are no longer inundated during low 

flows, causing a loss of frog habitat. Removing this sediment to restore these channels would 

create additional frog breeding and overwintering habitat. 

58. Finally, Wickiup dam and altered water flows in the river below the dam also 

impair movement of frogs between populations above and below Wickiup Reservoir. This 

reduces genetic exchange and creates isolated sub-populations at risk of genetic in-breeding. 

III. BOR’s Prior Consultation Over Crane Prairie and Wickiup Dams and Reservoirs. 

59. Due to its ownership and discretionary control over operations and maintenance 

of Crane Prairie and Wickiup dams and reservoirs, BOR previously consulted with U.S. Fish and 

Wildlife Service and NOAA Fisheries over the impacts of these facilities, among others, on 

ESA-listed species. 

60. BOR’s biological assessment was titled, “Biological Assessment on Continued 

Operation and Maintenance of the Deschutes River Basin Projects and Effects on Essential Fish 

Habitat under the Magnuson-Stevens Act,” and it was dated September 2003. The “Proposed 

Action” in the assessment stated: 

Reclamation’s proposed action is the continued operation and maintenance of 

Reclamation’s project facilities throughout the Deschutes River basin as described in 

Chapter 2. Subsequent consultations will be initiated if significant changes are 

anticipated in future project O&M [operations and maintenance] procedures, additional 

listings of species occur within the Deschutes River basin potentially affected by O&M 

activities, or other criteria described in 50 CFR 402.16 apply.” 

BOR Biological Assessment at 1-1 (emphasis added). 

 

61. Chapter two of BOR’s biological assessment stated that the consultation “involves 

O&M activities associated with those facilities for which Reclamation has authority to operate, 

Case 6:15-cv-02358-TC Document 1 Filed 12/18/15 Page 16 of 24
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF -- 16 

largely defined by Reclamation ownership. Storage, diversion, and delivery facilities comprising 

the proposed action include . . . Crane Prairie Dam and Reservoir [and] Wickiup Dam and 

Reservoir” among other facilities. BOR Biological Assessment at 2-1. 

62. With regard to Crane Prairie and Wickiup, the assessment noted that “the 

following project operations are included in the proposed action . . . 

• Storage in and release of water from Crane Prairie Dam and Reservoir for 

diversion (an interrelated and interdependent action is diversion of storage water 

by private facilities) 

• Storage in and release of water from Wickiup Dam and Reservoir for diversion 

• Diversion of Wickiup Reservoir storage water by North Unit Headworks and 

Main Canal (an interrelated and interdependent action is the diversion of natural 

flow water) 

BOR Biological Assessment at 2-8. 

63. The assessment analyzed the hydrologic effects of BOR’s project operations on a 

variety of ESA-listed species by comparing water flows from the current operations with water 

flows that would occur without BOR facilities operating--i.e. if the reservoirs were run-of-theriver and just passed natural flows. The analysis did not cover Oregon spotted frog because that 

species had not yet been listed as threatened. 

64. As noted above, Oregon spotted frog was listed as a threatened species under the 

ESA on August 29, 2014. BOR has apparently initiated consultation with U.S. Fish and Wildlife 

Service over its continuing operation of Crane Prairie and Wickiup reservoirs for water storage 

and irrigation purposes but does not expect to complete this consultation until mid-2017 at the 

earliest. Despite not having completed consultation over this species through either reinitiation 

of the prior consultation (as it noted it must if a new species was listed that may be affected by 

the proposed action) or a new consultation over just Oregon spotted frog, it has continued its 

operation and maintenance of Crane Prairie and Wickiup dams and reservoirs in ways that kill or 

Case 6:15-cv-02358-TC Document 1 Filed 12/18/15 Page 17 of 24
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF -- 17 

injure Oregon spotted frog. 

65. The continued operation of these facilities adversely affects or eliminates spotted 

frog breeding, rearing, summer foraging, and overwintering habitat around the reservoirs and 

downstream along the Deschutes River. The timing, speed, and extent of water releases from the 

reservoirs and drawdowns of the river for water storage will continue to harm frogs through loss 

of breeding habitat and/or dessication of egg masses and tadpoles, forced movement of tadpoles 

and frogs to less suitable rearing or summer habitat, and loss of overwinter habitat that strands 

juveniles and forces adults into less suitable winter habitat. These impacts result in direct harm to 

individual frogs and egg masses, as well as degradation of habitat that significantly impairs 

spotted frog breeding, feeding, and sheltering behaviors. 

66. Due to the small number of breeding females found at many of the isolated sites 

along the Upper Deschutes River and around Crane Prairie and Wickiup reservoirs, continued 

harm to frogs and their habitat at these sites from operation of Crane Prairie and Wickiup 

facilities will likely cause extirpation of frogs from these sites. Maintaining these breeding sites 

is important to maintaining the distribution, abundance and genetic diversity of spotted frogs in 

the Upper Deschutes River Basin, and their loss would jeopardize the survival and recovery of 

this species. 

IV. Center for Biological Diversity’s FOIA Request. 

67. The Center sent a FOIA request to BOR on April 28, 2015, requesting 

information related to: (1) any ESA consultation over the effects of BOR’s operations of Crane 

Prairie and Wickiup reservoirs and dams, (2) BOR’s operations of those reservoirs and dams, 

and (3) Oregon spotted frog populations and/or habitat around or downstream of those reservoirs 

as well as downstream of Crescent Lake. 

Case 6:15-cv-02358-TC Document 1 Filed 12/18/15 Page 18 of 24
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF -- 18 

68. BOR sent letters in response to The Center’s request on May 13, 2015 and May 

27, 2015 acknowledging the request and estimating a response date. BOR finally responded to 

the request on September 30, 2015. 

69. BOR’s response withheld a significant amount of information under FOIA 

exemption 5. BOR claimed that the information fell within either the Deliberative Process 

Privilege for documents that were pre-decisional and deliberative, or within the Attorney-Client 

Privilege. BOR withheld or redacted numerous draft documents, emails and other documents 

that contained allegedly deliberative or attorney-client privileged material, for a total of 484 

pages withheld or redacted. 

70. BOR did not adequately establish in its response that all of the withheld material 

properly fell within exemption 5. BOR did not provide a detailed justification to show that 

withheld information was pre-decisional to a specific BOR decision and deliberative, rather than 

factual, information to use the Deliberative Process Privilege. Nor did it explain what 

information was withheld under the Attorney-Client Privilege and show that such information 

involved legal opinions or advice from an attorney. BOR also did not explain why none of the 

redacted information was reasonably segregable. 

71. Many documents were withheld entirely or almost entirely even though, based on 

the nature of the documents, they certainly contained information that was factual and thus did 

not constitute deliberative material. Other documents were withheld even though they concerned 

decisions being made by other agencies. Therefore, they were not pre-decisional to any BOR 

decision and did not involve purely internal deliberations by BOR. Finally, some withheld 

documents were created by or distributed to non-agency third-parties and therefore were not 

intra- or inter-agency documents. 

Case 6:15-cv-02358-TC Document 1 Filed 12/18/15 Page 19 of 24
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF -- 19 

72. The Center submitted a timely administrative appeal to the FOIA Appeals Officer 

at the U.S. Department of Interior on October 16, 2015, which was received on October 26, 

2015. The Center’s appeal alleged that BOR did not provide the required detailed justification to 

show that all of the withheld information properly fell within exemption 5; and that BOR 

unlawfully withheld information that was not pre-decisional and deliberative or attorney-client 

privileged and should have been released in full or reasonably segregated from factual 

information that was released. 

73. The Center has received no determination on its appeal nor any written 

explanation of unusual circumstances that would necessitate additional time for a determination. 

The twenty-day deadline for such determination and written explanation has now passed and The 

Center has therefore exhausted its administrative remedy. 

FIRST CLAIM FOR RELIEF 

VIOLATIONS OF ESA SECTION 7 

74. Plaintiff realleges and incorporates by reference the preceding paragraphs. 

75. This first claim for relief challenges BOR’s violations of ESA Section 7 regarding 

impacts to Oregon spotted frog from the continued operation and maintenance of Crane Prairie 

and Wickiup dams and reservoirs. Plaintiff brings this claim pursuant to the citizen suit provision 

of the ESA, 16 U.S.C. § 1540(g). 

76. BOR previously consulted with the Services over its operation and maintenance 

of several facilities in central Oregon, including Crane Prairie Dam and Reservoir and Wickiup 

Dam and Reservoir. BOR retains ownership and discretionary control over these two facilities 

and thus must consult over their impacts on the threatened Oregon spotted frog, either through 

reinitiation of the prior consultation or a new consultation. BOR has not yet completed any such 

Case 6:15-cv-02358-TC Document 1 Filed 12/18/15 Page 20 of 24
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF -- 20 

consultation. 

77. By continuing to operate and maintain Crane Prairie and Wickiup dams and 

reservoirs in ways that adversely affect Oregon spotted frogs before completing ESA 

consultation, BOR has failed to ensure that its actions are not likely to jeopardize this species. 

Thus, it has violated ESA Section 7(a)(2). 16 U.S.C. § 1536(a)(2). 

78. BOR is also violating ESA Section 7 by continuing to operate and maintain Crane 

Prairie and Wickiup dams and reservoirs prior to completing any ESA consultation for the 

Oregon spotted frog because these operations constitute an irreversible and irretrievable 

commitment of resources. The storage and release of water from these facilities causes 

irreversible harm to the species because water levels are raised or lowered at unnatural levels and 

at unnatural times, resulting in death or injury to frogs and egg masses at sites around the 

reservoirs as well as along the Deschutes River. Most of these sites have only a small number of 

breeding females and continued harm puts them at great risk of extirpation. Thus, BOR’s actions 

also violate Section 7(d) of the ESA. 16 U.S.C. § 1536(d). 

79. Accordingly, BOR’s continued operation and maintenance of Crane Prairie and 

Wickiup dams and reservoirs in ways that harm Oregon spotted frog before completing ESA 

consultation violates ESA Sections 7(a)(2) and (d) and thus is actionable pursuant to the ESA’s 

citizen suit provision. 16 U.S.C. § 1540(g). 

SECOND CLAIM FOR RELIEF 

VIOLATIONS OF ESA SECTION 9 

80. Plaintiff realleges and incorporates by reference the preceding paragraphs. 

81. This second claim for relief challenges BOR’s violations of ESA Section 9 

regarding “take” of Oregon spotted frogs from the continued operation and maintenance of 

Case 6:15-cv-02358-TC Document 1 Filed 12/18/15 Page 21 of 24
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF -- 21 

Crane Prairie and Wickiup dams and reservoirs. Plaintiff brings this claim pursuant to the citizen 

suit provision of the ESA, 16 U.S.C. § 1540(g). 

82. The storage and release of water from Crane Prairie and Wickiup reservoirs is 

killing and harming Oregon spotted frog eggs, tadpoles, juveniles, and adults. Water fluctuations 

from operation of these facilities flood habitat at certain times of year and dewater habitat at 

other times, each of which directly harms and kills frogs and frog eggs around the reservoirs and 

along the Deschutes River, and also causes habitat degradation that significantly impairs Oregon 

spotted frog breeding, feeding, and sheltering behaviors. 

83. These effects fall within the definition of “take” prohibited by the ESA, and BOR 

does not have an Incidental Take Statement to authorize such take. Thus, its continued operation 

and maintenance of Crane Prairie and Wickiup dams and reservoirs violates ESA Section 9, and 

is actionable under the ESA citizen suit provision. 16 U.S.C. §§ 1538, 1540(g). 

THIRD CLAIM FOR RELIEF 

VIOLATION OF FOIA 

84. Plaintiff realleges and incorporates by reference the preceding paragraphs. 

85. This third claim for relief challenges BOR’s violation of FOIA for unlawfully 

invoking FOIA exemption 5 to justify withholding information from its response to The Center’s 

FOIA request. The Center brings this claim under FOIA, 5 U.S.C. § 552(a)(4)(B). 

86. BOR’s partial denial of The Center’s FOIA request violates FOIA, 5 U.S.C. § 

552(a), and has deprived The Center of its right to public information in the possession of BOR. 

Case 6:15-cv-02358-TC Document 1 Filed 12/18/15 Page 22 of 24
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF -- 22 

PRAYER FOR RELIEF 

A. Adjudge and declare that BOR is violating Section 7 of the ESA by continuing to 

operate and maintain Crane Prairie and Wickiup dams and reservoirs without completing ESA 

consultation over the impacts of that activity on Oregon spotted frog; 

B. Adjudge and declare that BOR is violating Section 9 of the ESA by continuing to 

operate and maintain Crane Prairie and Wickiup dams and reservoirs in a manner that causes 

“take” of Oregon spotted frog without any legal authorization for that take; 

C. Adjudge and declare that BOR violated FOIA by improperly invoking exemption 

5 and failing to release all relevant information pursuant to The Center’s April 28, 2015 FOIA 

request; 

D. Order that BOR immediately provide The Center with unredacted copies of the 

records it has requested, free of charge; 

E. Enter such other declaratory relief, and temporary, preliminary, or permanent 

injunctive relief as may be prayed for hereafter by Plaintiff; 

F. Award Plaintiff its reasonable costs, litigation expenses, and attorneys’ fees 

associated with this litigation pursuant to the ESA, 16 U.S.C. § 1540(g) and to FOIA, 5 U.S.C. § 

552(a)(4)(E); and 

G. Grant such further relief as the Court deems just and proper in order to provide 

Plaintiff with relief and protect the public interest. 

Case 6:15-cv-02358-TC Document 1 Filed 12/18/15 Page 23 of 24
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF -- 23 

Dated: December 18, 2015 Respectfully submitted, 

 s/Lauren M. Rule 

 Lauren M. Rule (OSB #015174) 

 s/Elizabeth H. Zultoski 

Elizabeth H. Zultoski (OSB #105482) 

ADVOCATES FOR THE WEST 

3115 NE Sandy Blvd., Ste. 223 

Portland, OR 97232 

Tel: (503) 914-6388 

lrule@advocateswest.org 

ezultoski@advocateswest.org 

Attorneys for Plaintiffs 

Case 6:15-cv-02358-TC Document 1 Filed 12/18/15 Page 24 of 24