National Wildlife Federation v. National Marine Fisheries Service ( 2005 )

FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 26 2005
CATHY A. CATTERSON, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
NATIONAL WILDLIFE FEDERATION; No. 05-35569
IDAHO WILDLIFE FEDERATION;
WASHINGTON WILDLIFE D.C. No. CV-01-00640-JAR
FEDERATION; SIERRA CLUB; TROUT
UNLIMITED; PACIFIC COAST
FEDERATION OF FISHERMEN’S OPINION
ASSOCIATIONS; INSTITUTE FOR
FISHERIES RESOURCES; IDAHO
RIVERS UNITED; IDAHO STEELHEAD
AND SALMON UNITED; NORTHWEST
SPORT FISHING INDUSTRY
ASSOCIATION, SALMON FOR ALL;
COLUMBIA RIVERKEEPER; NW
ENERGY COALITION; FEDERATION
OF FLY FISHERS; AMERICAN
RIVERS, INC.,
Plaintiffs - Appellees,
v.
NATIONAL MARINE FISHERIES
SERVICE; UNITED STATES ARMY
CORPS OF ENGINEERS; U.S. BUREAU
OF RECLAMATION,
Defendants,
FRANKLIN COUNTY FARM BUREAU
FEDERATION; GRANT COUNTY
FARM BOARD FEDERATION;
WASHINGTON FARM BUREAU
FEDERATION; STATE OF IDAHO;
CLARKSON GOLF & COUNTY CLUB,
Defendant-Intervenors,
and
NORTHWEST IRRIGATION
UTILITIES; PUBLIC POWER
COUNCIL; PACIFIC NORTHWEST
GENERATING COOPERATIVE; BPA
CUSTOMER GROUP,
Defendant-Intervenors -
Appellants,
v.
STATE OF OREGON,
Plaintiff-intervenor - Appellee.
NATIONAL WILDLIFE FEDERATION; No. 05-35646
IDAHO WILDLIFE FEDERATION;
WASHINGTON WILDLIFE D.C. No. CV-01-00640-JAR
FEDERATION; SIERRA CLUB; TROUT
UNLIMITED; PACIFIC COAST
FEDERATION OF FISHERMEN’S
ASSOCIATIONS; INSTITUTE FOR
FISHERIES RESOURCES; IDAHO
RIVERS UNITED; IDAHO STEELHEAD
AND SALMON UNITED; NORTHWEST
SPORT FISHING INDUSTRY
ASSOCIATION, SALMON FOR ALL;
COLUMBIA RIVERKEEPER; NW
2
ENERGY COALITION; FEDERATION
OF FLY FISHERS; AMERICAN
RIVERS, INC.,
Plaintiffs - Appellees,
v.
NATIONAL MARINE FISHERIES
SERVICE; UNITED STATES ARMY
CORPS OF ENGINEERS; U.S. BUREAU
OF RECLAMATION,
Defendants,
NORTHWEST IRRIGATION
UTILITIES; PUBLIC POWER
COUNCIL; PACIFIC NORTHWEST
GENERATING COOPERATIVE; BPA
CUSTOMER GROUP; FRANKLIN
COUNTY FARM BUREAU
FEDERATION; GRANT COUNTY
FARM BOARD FEDERATION;
WASHINGTON FARM BUREAU
FEDERATION; CLARKSON GOLF &
COUNTY CLUB,
Defendant-Intervenors,
and
STATE OF IDAHO,
Defendant-intervenor -
Appellant,
v.
3
STATE OF OREGON,
Plaintiff-intervenor - Appellee.
NATIONAL WILDLIFE FEDERATION; No. 05-35570
IDAHO WILDLIFE FEDERATION;
WASHINGTON WILDLIFE D.C. No. CV-01-00640-JAR
FEDERATION; SIERRA CLUB; TROUT
UNLIMITED; PACIFIC COAST
FEDERATION OF FISHERMEN’S
ASSOCIATIONS; INSTITUTE FOR
FISHERIES RESOURCES; IDAHO
RIVERS UNITED; IDAHO STEELHEAD
AND SALMON UNITED; NORTHWEST
SPORT FISHING INDUSTRY
ASSOCIATION, SALMON FOR ALL;
COLUMBIA RIVERKEEPER; NW
ENERGY COALITION; FEDERATION
OF FLY FISHERS; AMERICAN
RIVERS, INC.,
Plaintiffs - Appellees,
v.
NATIONAL MARINE FISHERIES
SERVICE; UNITED STATES ARMY
CORPS OF ENGINEERS; U.S. BUREAU
OF RECLAMATION,
Defendants - Appellants,
and
NORTHWEST IRRIGATION
4
UTILITIES; PUBLIC POWER
COUNCIL; PACIFIC NORTHWEST
GENERATING COOPERATIVE; BPA
CUSTOMER GROUP; FRANKLIN
COUNTY FARM BUREAU
FEDERATION; GRANT COUNTY
FARM BOARD FEDERATION;
WASHINGTON FARM BUREAU
FEDERATION; STATE OF IDAHO;
CLARKSON GOLF & COUNTY CLUB,
Defendant-Intervenors,
v.
STATE OF OREGON,
Plaintiff-intervenor - Appellee.
Appeal from the United States District Court
for the District of Oregon
James A. Redden, District Judge, Presiding
Argued and Submitted July 13, 2005
Seattle, Washington
Filed: July 26, 2005
Before: TASHIMA, THOMAS, and PAEZ, Circuit Judges.
PER CURIAM:
The defendants appeal the district court’s grant of a preliminary injunction,
based on a violation of the Endangered Species Act (or “ESA”), 16 U.S.C. §§
1531-1544, requiring the United States to pass a specified amount of water
5
through the spillgates of four dams on the Snake River, and one dam on the
Columbia River during the summer months of 2005, rather than passing the water
through turbines for power generation. We affirm in part and remand in part.
I
The Columbia River is the fourth largest river on the North American
continent. It drains approximately 259,000 square miles, including territory in
seven states and one Canadian province. It flows for more than 1,200 miles from
the base of the Canadian Rockies to the Pacific Ocean. As part of the cycle of life
in the Columbia River system, every year hundreds of thousands of salmon and
steelhead travel up and down the river and its tributaries, hatching in fresh water,
migrating downstream to the sea to achieve adulthood, and then returning
upstream to spawn. The Snake River is the Columbia River’s main tributary.
As part of the modern cycle of life in the Columbia River System, each year
brings litigation to the federal courts of the Northwest over the operation of the
Federal Columbia River Power System (“FCRPS” or “Columbia River System”)1
1
The FCRPS consists of 14 sets of dams and related facilities: Bonneville,
The Dales, John Day, and McNary dams in the lower Columbia River Basin; Chief
Joseph, Grand Coulee, Libby, Hungry Horse, and Albeni Falls dams in the upper
Columbia River Basin; and Ice Harbor, Lower Monumental, Little Goose, Lower
Granite, and Dworshak Dams in the lower Snake River Basin. The United States
Bureau of Reclamation manages the Grand Coulee and Hungry Horse dams; the
(continued...)
6
and, in particular, the effects of system operation on the anadromous salmon and
steelhead protected by the Endangered Species Act.
No one disputes that the wild Pacific salmon population has significantly
decreased; indeed, in recent years, salmon runs have declined to a small
percentage of their historic abundance. There are now thirteen species of
Columbia, Snake, and Willamette River salmon and steelhead that are protected by
the Endangered Species Act.2 The district court found in this case that “the listed
species are in serious decline and not evidencing signs of recovery.” Each of the
thirteen affected stocks migrate at different times of the year to different parts of
the Columbia Basin. For example, Upper Columbia spring Chinook adults return
to their spawning grounds in the spring of each year; Snake River fall Chinook
adults return to the Snake River Basin in the fall. Juveniles of these stocks
generally migrate seaward between mid-April and early September. The spring
1
(...continued)
remainder are managed by the United States Army Corps of Engineers.
2
Snake River Chinook salmon (fall-run); Snake River Chinook salmon
(spring/summer-run); Snake River sockeye salmon; Upper Columbia River
steelhead; Snake River Basin steelhead; Lower Columbia River coho salmon;
Lower Columbia River steelhead; Middle Columbia River steelhead; Upper
Willamette River steelhead; Lower Columbia River Chinook salmon; Upper
Willamette River Chinook salmon; Upper Columbia River Chinook salmon
(spring-run); and Columbia River chum salmon.
7
and summer Chinook, steelhead, and sockeye salmon migrate as yearling juveniles
in the spring. Subyearling fall Chinook migrate down the river during the mid-to-
late summer. Some salmon migrate downstream after spending a year in fresh
water; others migrate the same year.
The primary focus of the present lawsuit is the survival of the fall juvenile
Chinook salmon and steelhead migrating downstream to the Pacific Ocean. These
fish must pass a number of FCRPS dams on their journey to the sea and suffer a
very high mortality rate in doing so, sometimes as high as 92%. As the fish
migrate downstream, they first encounter reservoirs behind the dams, which slows
their progress and exposes them to predatory fish, such as the northern
pikeminnow. After passage through each dam’s reservoir, the juvenile salmon and
steelhead must pass each dam. There are four main methods by which salmon may
navigate the Columbia and Snake River hydroelectric projects while migrating
from upriver areas to the ocean: (1) spill over the dams; (2) passage through
turbines; (3) in-river bypass systems; and (4) transportation bypass systems. Of
these options, passage through turbines unquestionably causes the highest
mortality rate. Historically, spill has been considered to cause the lowest
8
mortality. However, spill must be carefully managed to avoid gas supersaturation,
which is harmful to the fish.3
Each dam has a bypass system. At some dams, the bypass consists of
screens in front of the turbine intakes that divert the salmon and steelhead into a
passageway through the dam and downstream. At others, the bypass system
diverts the fish into barges for transportation around the dam.
The operation of the Columbia River System is complex. The Army Corps
of Engineers and the Bureau of Reclamation manage the dams for multi-purpose
operations; the Bonneville Power Administration manages federal power
generated from the dams; and the Federal Energy Regulatory Commission plays a
number of roles, including licensing of non-federal hydro-power projects.
Although the focus of this litigation is the effect of Columbia River System
operation on endangered species, in the day-to-day operation, federal agencies
must manage the system to deliver needed power and water to Northwest
consumers.
3
Falling water over the dam increases the amount of atmospheric gases that
are dissolved in the water. If the level of dissolved atmospheric gases is too high,
fish can experience “gas bubble trauma,” which is similar to the “bends”
experienced by human divers who return to the surface too quickly.
9
States also have an influence on the Columbia River System, directly in
their governance of water diversions from the river, and indirectly through their
own fish and wildlife conservation programs. The operation of the Columbia
River System is also impacted by treaties with a number of federally recognized
Indian Tribes, which reserve to the tribes certain fishing rights that are affected by
the management of the FCRPS.4
In the last several decades, the management of the Columbia River System
has been strongly influenced by the Endangered Species Act, which requires
federal agencies to, in consultation with what is know as the “consulting agency,”
conserve species listed under the ESA. The ESA requires federal agencies to
“insure that any action authorized, funded, or carried out by such agency . . . is not
likely to jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification of
[designated critical] habitat . . . .” 15 U.S.C. § 1536(a)(2). To ensure that the
agency would meet its substantive ESA duties, the ESA imposes a procedural
4
See, e.g., Treaty with the Nez Perces, 12 Stat. 957, Art. 3 (June 11, 1855);
Treaty with the Tribes of the Middle Oregon (Confederated Tribes of the Warm
Springs Reservation of Oregon), 12 Stat. 963 (June 25, 1855); Treaty with the
Yakima, 12 Stat. 951 (June 9, 1855); Treaty with the Wallawalla, Cayuse, et. al.
(Confederated Tribes of the Umatilla Indian Reservation), 12 Stat. 945 (June 9,
1855). In their amici brief, the treaty tribes support the position of the National
Wildlife Federation in this action.
10
consultation duty whenever a federal action may affect an ESA-listed species.
Thomas v. Peterson, 753 F.2d 754, 763 (9th Cir. 1985). To that end, the agency
planning the action, usually known as the “action agency,” must consult with the
consulting agency. This process is known as a “Section 7" consultation. The
process is usually initiated by a formal written request by the action agency to the
consulting agency. After consultation and analysis, the consulting agency then
prepares a biological opinion. See generally Ariz. Cattle Growers' Ass’n v. United
States Fish & Wildlife Serv., 273 F.3d 1229, 1239 (9th Cir. 2001).
The consulting agency evaluates the effects of the proposed action on the
survival of species and any potential destruction or adverse modification of critical
habitat in a biological opinion, 16 U.S.C. § 1536(b), based on “the best scientific
and commercial data available,” id. at § 1536(a)(2). The biological opinion
includes a summary of the information upon which the opinion is based, a
discussion of the effects of the action on listed species or critical habitat, and the
consulting agency’s opinion on “whether the action is likely to jeopardize the
continued existence of a listed species or result in the destruction or adverse
modification of critical habitat. . . .” 50 C.F.R. § 402.14(h). In making its
jeopardy determination, the consulting agency evaluates “the current status of the
listed species or critical habitat,” the “effects of the action,” and “cumulative
11
effects.” 50 C.F.R. § 402.14(g)(2)-(3). “Effects of the action” include both direct
and indirect effects of an action that will be added to the “environmental baseline.”
50 C.F.R. § 402.02. The environmental baseline includes “the past and present
impacts of all Federal, State or private actions and other human activities in the
action area” and “the anticipated impacts of all proposed Federal projects in the
action area that have already undergone formal or early section 7 consultation.”
Id.
If the biological opinion concludes that jeopardy is not likely and that there
will not be adverse modification of critical habitat, or that there is a “reasonable
and prudent alternative” to the agency action that avoids jeopardy and adverse
modification and that the incidental taking of endangered or threatened species
will not violate section 7(a)(2), the consulting agency can issue an “Incidental
Take Statement” which, if followed, exempts the action agency from the
prohibition on takings5 found in Section 9 of the ESA. 16 U.S.C. § 1536(b)(4);
Aluminum Co. of America v. Administrator, Bonneville Power Administration, 175
F.3d 1156, 1159 (9th Cir. 1999).
5
“The term ‘take’ means to harass, harm, pursue, hunt, shoot, wound, kill,
trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. §
1532(19).
12
If the consulting agency concludes that an action agency's action may
jeopardize the survival of species protected by the ESA, or adversely modify a
species’ critical habitat, the action must be modified. Id. The consulting agency
may recommend a “reasonable and prudent alternative” to the agency's proposed
action. Id. at § 1536(b)(3)(A).
The issuance of a biological opinion is considered a final agency action, and
therefore subject to judicial review. Bennett v. Spear, 520 U.S. 154, 178 (1997);
Ariz. Cattle Growers' Ass’n, 273 F.3d at 1235.
The Endangered Species Act, as it applies here to protection of anadromous
fish, requires action agencies to consult the agency formerly known as the
National Marine Fisheries Service of the National Oceanic and Atmospheric
Administration (“NMFS”),6 to ensure that an agency's actions do not jeopardize an
ESA-protected species or adversely modify their critical habitat. 16 U.S.C. §
1536(a)-(b).
Snake River fall Chinook salmon were listed as threatened species in 1992.
In 1993, NMFS issued a biological opinion concluding that FCRPS operations
would not jeopardize the listed species. The district court held that NMFS’s
6
The agency has now been renamed “NOAA Fisheries.” Because many of
the documents refer to the agency by its former name, it shall be referenced as
“NMFS” throughout this opinion for convenience of reference.
13
action in issuing the 1993 biological opinion was arbitrary and capricious. Idaho
Dep’t of Fish & Game v. Nat’l Marine Fisheries Serv., 850 F. Supp. 886, 900 (D.
Or. 1994). The district court found that NMFS had failed to give an adequate
explanation for several of the key assumptions that went into its jeopardy analysis.
This decision was vacated on appeal as moot because NMFS had issued a
subsequent biological opinion. Idaho Dep’t of Fish & Game v. Nat’l Marine
Fisheries Serv., 56 F.3d 1071, 1075 (9th Cir. 1995). After further litigation and
agency action not directly relevant to this case, NMFS issued a new biological
opinion on December 21, 2000, (the “2000 BiOp”) that superseded the previous
biological opinions.
In its 2000 BiOp, NMFS determined that the continued operation of FCRPS
as proposed by the action agencies would jeopardize eight listed salmon and
steelhead species; specifically, NMFS found that the “effects of the proposed or
continuing action, the effects of the environmental baseline, and any cumulative
effects, and considering measures for survival and recovery specific to other life
stages” would leave the eight species with too low a likelihood of survival and
potential for population recovery. NMFS thus developed reasonable and prudent
alternatives to the proposed operation and analyzed whether these alternatives, in
conjunction with the environmental baseline and cumulative effects, would avoid
14
jeopardizing the species. NMFS found these alternatives insufficient. NMFS
therefore assessed whether the additional impact of off-site mitigation activities
unrelated to FCRPS operations, including hatchery and habitat initiatives, would
avoid jeopardy, and found that it did.
Plaintiff National Wildlife Federation (“NWF”) brought this present action
challenging the 2000 BiOp in U.S. District Court for the District of Oregon. The
district court concluded that the 2000 BiOp was invalid because to reach its
jeopardy determination, NMFS improperly relied on off-site federal mitigation
actions that had not undergone Section 7 consultation, and thus were not properly
included in the environmental baseline,7 and on non-federal mitigation actions that
were not reasonably certain to occur, and thus were not properly included in
cumulative effects. Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Servs., 254 F.
Supp. 2d 1196, 1211-12 (D. Or. 2003). The district court remanded to provide
NMFS an opportunity to correct the 2000 BiOp. Id. at 1215.
7
The 2004 BiOp concluded that NMFS could not distinguish the effects of
the discretionary and nondiscretionary FCRPS operations, and therefore created
an hypothetical “reference operation” to which it compared the discretionary
proposed action. The reference operation was developed to “maximize fish
benefits” and it “overestimates the beneficial effects that the Action Agencies can
actually achieve.” 2004 BiOp at 5-6.
15
Rather than correct the 2000 BiOp, NMFS issued an entirely new biological
opinion on November 30, 2004 (the “2004 BiOp”), which formed the basis of the
federal agencies’ operating plans for the FCRPS during the summer of 2005. In
the 2004 BiOp, NMFS conducted a jeopardy analysis which utilized the novel
approach of including in the environmental baseline the existing FCRPS, the
nondiscretionary dam operations, and all past and present impacts from
discretionary operations. As opposed to assessing whether the salmon and
steelhead would be jeopardized by the aggregate of the proposed agency action,
the environmental baseline, cumulative effects, and current status of the species,
NMFS instead evaluated whether the proposed agency action, consisting of only
the proposed discretionary operation of the FCRPS, would have no net effect on a
species when compared to the environmental baseline. By using this comparative
approach rather than the aggregate approach, NMFS was able to conclude that the
proposed action would not jeopardize the continued existence or any listed species
or destroy or adversely modify critical habitat for three of these species.
NWF and the State of Oregon challenged the following aspects of 2004
BiOp, specifically and as relevant to this appeal: (1) the segregation of the existing
FCRPS, the nondiscretionary dam operations, and all past and present impacts
from discretionary operations from the proposed discretionary operations; (2) the
16
basic analytical framework NMFS employed to come to its no-jeopardy and
critical habitat determinations; and (3) the critical habitat determinations which
plaintiffs alleged did not analyze what habitat conditions are necessary for
recovery.8
The district court granted summary judgment for NWF and Oregon,
holding that NMFS had violated the ESA in the issuance of its 2004 BiOp. The
district court found the 2004 BiOp legally insufficient for four independent
reasons:
• The opinion failed to conduct a jeopardy analysis on the basis of all
elements of the proposed action, including the so-called non-
discretionary operations of the dams;
• The opinion failed to use an aggregation of the impacts from the
proposed action, the environmental baseline, and the cumulative
impacts as the basis for the jeopardy analysis;
• The opinion’s critical habitat determination was flawed because it
failed to determine separately whether the proposed action would
destroy or adversely modify critical habitat necessary for the recovery
as well as survival of the listed species; and
• The opinion’s jeopardy analysis failed to address both recovery and
survival of the listed species.
8
The States of Oregon and Washington support the substantive position of
the National Wildlife Federation, but take no position on the preliminary
injunction. The States of Idaho and Nebraska support the federal government’s
position on both the merits and the preliminary injunction remedy.
17
The order granting summary judgment to the plaintiffs “invalidated” the
2004 BiOp. However, the district court specified that its summary judgment order
was not final or appealable. Following the district court’s decision to invalidate
the 2004 BiOp, NWF moved for a preliminary injunction requiring NMFS to: (1)
withdraw the 2004 BiOp; (2) comply with and implement all of the reasonable and
prudent alternative mitigation actions described in the 2000 BiOp (with certain
exceptions); (3) as to the 2005 summer flow, decrease the water particle travel
time by 10% in specified areas; and (4) provide water spill over specified dams
during the summer of 2005.
The district court, based on its determination that the 2004 BiOp was
procedurally and substantively flawed and its finding that the operations of
FCRPS strongly contribute to the endangerment of the listed species and will
cause irreparable injury if not changed, granted in part the motion for a
preliminary injunction. The district court announced its intention to order the
withdrawal of the 2004 BiOp, but declined to do so until after a fall status
conference. The court denied the request to order the decrease of water particle
travel time by at least 10% in the specified areas. The court granted the request to
order summer spills at specified areas in order to avoid irreparable harm to
juvenile fall chinook and other listed species. Specifically, the district court
18
ordered the affected agencies to: (1) provide spill from June 20, 2005, through
August 31, 2005, of all water in excess of that required for station service, on a 24-
hour basis, at the Lower Granite, Little Goose, Lower Monumental, and Ice
Harbor Dams on the lower Snake River; and (2) provide spill from July 1, 2005,
through August 31, 2005, of all flows above 50,000 cubic feet per second, on a 24-
hour basis, at the McNary Dam on the Columbia River.
The district court also held in its order that the respective Records of
Consultation and Statements of Decision issued by the Army Corps of Engineers
on January 3, 2005, and by the Bureau of Reclamation on January 12, 2005, also
violated the ESA because they were based on the invalid 2004 BiOp.
The defendants filed an emergency motion for a stay of the injunction order
pending appeal. A motions panel denied the defendants’ stay motion, but ordered
an expedited hearing on the preliminary injunction appeal. Oral argument on the
preliminary injunction appeal was held July 13, 2005. The panel expresses its
appreciation to the parties for providing extensive briefing on short notice and on
an accelerated time schedule.
II
A district court’s order with respect to preliminary injunctive relief is
subject to limited appellate review, and we will reverse only if the district court
19
“abused its discretion or based its decision on an erroneous legal standard or on
clearly erroneous findings of fact.” United States v. Peninsula Communications,
Inc., 287 F.3d 832, 839 (9th Cir. 2002). “Our review is limited and deferential.”
Southwest Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir.
2003) (en banc). In considering a preliminary injunction appeal, we ordinarily do
not decide the ultimate merits of the case, but only the temporal rights of the
parties until the district court renders judgment on the merits of the case based on
a fully developed record. Gilder v. PGA Tour, Inc., 936 F.2d 417, 422 (9th Cir.
1991). Mere disagreement with the district court’s conclusions is not sufficient
reason for us to reverse the district court’s decision regarding a preliminary
injunction. Sports Forum, Inc. v. United Press Int’l, Inc., 686 F.2d 750, 752 (9th
Cir. 1982); see also Ranchers Cattlemen Action Legal Fund United Stockgrowers
of Am. v. United States Dep’t of Agric. (“R-CALF”), No. 05-35264, typescript op.
at 21-23 (9th Cir. Jul. 25 2005) (setting forth standard of review).
The traditional preliminary injunction analysis does not apply to injunctions
issued pursuant to the ESA. Nat’l Wildlife Fed’n v. Burlington N. R.R., Inc., 23
F.3d 1508, 1510 (9th Cir. 1994). “In cases involving the ESA, Congress removed
from the courts their traditional equitable discretion in injunction proceedings of
balancing the parties’ competing interests.” Id. at 1511 (citing Friends of the
20
Earth v. United States Navy, 841 F.2d 927, 933 (9th Cir. 1988)). As the Supreme
Court has noted, “Congress has spoken in the plainest of words, making it
abundantly clear that the balance has been struck in favor of affording endangered
species the highest of priorities.” TVA v. Hill, 437 U.S. 153, 194 (1978).
Accordingly, courts “may not use equity’s scale’s to strike a different balance.”
Sierra Club v. Marsh, 816 F.2d 1376, 1383 (9th Cir. 1987); see also Marbled
Murrelet v. Babbitt, 83 F.3d 1068, 1073 (9th Cir. 1996) (“Congress has
determined that under the ESA the balance of hardships always tips sharply in
favor of endangered or threatened species.”).
A
Given this clear authority, we must at the onset reject the argument of the
federal appellants that the district court erred as a matter of law by failing to
conduct a traditional preliminary injunction analysis and, in particular, by failing
to weigh economic harm to the public in reaching its conclusion. As the Supreme
Court has instructed, such an analysis does not apply to ESA cases because
Congress has already struck the balance. Id. Therefore, we conclude that the
district court did not apply an incorrect legal standard in this case.
We decline to address the legal issues raised by the district court’s summary
judgment order. We review the merits only in the very confined context of
21
determining whether the district court abused its discretion in granting the
preliminary injunction. To establish a substantial likelihood of success on the
merits sufficient to pass appellate review of a district court’s grant of a preliminary
injunction, the plaintiffs were only obligated to show “a fair chance of success.”
Republic of the Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988) (en
banc). Based on our review of the record and briefs in this emergency appeal, we
conclude that the plaintiffs have met this burden by raising substantial questions as
to whether the agencies have violated Section 7 of the ESA by improperly
circumscribing the scope of the consultation or failing to aggregate the impacts of
the proposed action. However, in making this threshold determination, we express
no opinion on the ultimate merits of the district court’s summary judgment
decision, leaving that final determination to the district court in the first instance.
B
We also conclude that the district court’s grant of a preliminary injunction
was not based on clearly erroneous findings of fact. Although the facts and
scientific analysis underlying the district court’s decision are hotly contested by
the parties, our review in the preliminary injunction context is very deferential.
On appellate review in this context, we consider a finding of fact to be clearly
erroneous if it is implausible in light of the record, viewed in its entirety, Serv.
22
Employees Int’l Union v. Fair Political Practices Comm’n, 955 F.2d 1312, 1317
n.7 (9th Cir. 1992), or if the record contains no evidence to support it, Oregon
Natural Resources Council v. Marsh, 52 F.3d 1485, 1492 (9th Cir. 1995). Having
reviewed the extensive, albeit incomplete, record provided to us by the parties in
this expedited proceeding, we find no reversible error in the factual findings made
by the district court.
One of the important factual findings made by the district court was that the
federal operation of the Columbia and Snake River dams “strongly contribute to
the endangerment of the listed species and irreparable injury will result if changes
are not made.” The federal appellants contest this finding, arguing that the data
show that returns of fall chinook salmon have increased. The district court
concluded otherwise in its orders, finding in a 2004 order that the “predicted
survival improvement for fall chinook juveniles has not materialized.” The
government’s own recent data show that between 78-92% of juvenile salmon
migrating in the fall are killed by operation of the dams even with use of
mitigating measures, with a mean estimated kill of 86% of the migrating salmon.
NWF strongly argues that the government’s assertion of recovery is based on a
single, scientifically flawed, study. NWF also claims, through expert testimony,
that the increased returns were due to large releases of hatchery fish, rather than
23
successful fish transport over dams, and that the mortality rate for migrating
juvenile salmon is actually increasing. The federal agencies dispute this, and offer
counter-testimony. The record is replete with differing opinions by various
experts. One of the few undisputed points, however, is that the fall chinook
salmon remain a species listed under the ESA as “likely to become endangered in
the foreseeable future.”
Our task in reviewing a district court’s preliminary injunction decision is
not to resolve these controversies. “Clear error is not demonstrated by pointing to
conflicting evidence in the record.” United States v. Frank, 956 F.2d 872, 875
(9th Cir. 1991). Rather, “[a]s long as findings are plausible in light of the record
viewed in its entirety, a reviewing court may not reverse even if convinced it
would have reached a different result.” Wardley Int'l Bank, Inc. v. Nasipit Bay
Vessel, 841 F.2d 259, 262 n.1 (9th Cir.1988) (citing Anderson v. Bessemer City,
470 U.S. 564, 574 (1985)). Viewing the record as a whole with our deferential
standard of review, we cannot say that the district court’s factual finding
concerning irreparable harm was clearly erroneous.
III
Having determined that the district court did not use an incorrect legal
standard in its preliminary injunction analysis and did not make clearly erroneous
24
factual findings, we must decide whether the district court abused its discretion in
granting the preliminary injunction.
A
As we have discussed, the district court’s preliminary injunction order was
premised on its finding that the agencies had violated both the substantive and
procedural requirements of ESA § 7. Thus, the question before the district court
was what interim remedy was appropriate to redress the ESA violations.
Although not every statutory violation leads to the “automatic” issuance of
an injunction, in the context of the ESA, “the test for determining if equitable
relief is appropriate is whether an injunction is necessary to effectuate the
congressional purpose behind the statute.” Biodiversity Legal Found. v. Badgley,
30 F.3d 1166, 1177 (9th Cir. 2002) (citing TVA, 437 U.S. at 194). We therefore
have held that injunctive relief was necessary to effectuate Congress’s clear intent
by requiring compliance with the substantive and procedural provisions of the
ESA. Id. at 1177 (holding that the district court was “compelled” to grant
injunctive relief to remedy a violation of the ESA); Sierra Club, 816 F.2d at 1384
(holding that the Sierra Club was entitled to injunctive relief if the agency violated
substantive or procedural provisions of the ESA).
25
Given this legal backdrop, we conclude that the district court did not abuse
its discretion in granting a preliminary injunction. It had rejected the biological
opinion upon which the summer operations were premised, and it had concluded
that continuation of the status quo could result in irreparable harm to a threatened
species. Those are precisely the circumstances in which our precedent indicates
that the issuance of an injunction is appropriate.
This case is unlike the circumstances presented in our recent decision in R-
CALF. In R-CALF, we concluded that the district court had misread the governing
statute. R-CALF, typescript op. at 25. We also concluded that the agency had
acted in conformity with the governing statute. Id. at 28-31. We further
concluded that none of the reasons listed by the district court supported its
conclusion that the agency’s adoption of the final rule at issue was arbitrary and
capricious. Id. at 32-41.
Here, in contrast, the district court’s conclusions were well grounded in the
governing statute; the agency had altered its own interpretation of the statute
significantly; and the record supported the district court’s reasoning in declaring
the 2004 BiOp to be invalid. Further, the operations involved in this case have
had a long history. The district court has monitored the situation carefully over
the past few years and has found that the status quo will not lead to recovery of the
26
listed species. Thus, although we do not reach the merits of the summary
judgment order, the record supports the district court’s analysis that the plaintiffs
are likely to prevail on the merits of their claim that the 2004 BiOp violates
Section 7 of the ESA and is arbitrary and capricious under the Administrative
Procedures Act. Finally, as we have discussed, the standard for injunctive relief
under the ESA is far different from the usual standard governing preliminary
injunctions that applied in the R-CALF case. In ESA cases such as the one at bar,
“the balance has been struck in favor of affording endangered species the highest
of priorities.” TVA, 437 U.S. at 194. For these reasons, this case is quite
distinguishable from R-CALF, and we conclude that the district court did not
commit reversible error in deciding to grant a preliminary injunction.
B
Having concluded that the district court did not err in deciding to grant
preliminary injunctive relief, we must also examine the nature and scope of relief
ordered by the district court. One of the primary complications of this case is that
the operations in question are, by necessity, ongoing. Thus, our situation is unlike
that of a timber sale, which can be postponed in order to permit the agency to
correct the ESA violations before the planned operation commences. See, e.g.,
Native Ecosystems Council v. Dombeck, 304 F.3d 886, 900-03 (9th Cir. 2002)
27
(enjoining timber sale for ESA and NEPA violations). Here, the district court was
faced with a continuing operation that it had concluded would cause irreparable
harm to threatened species. Thus, the district court was confronted with two
choices: (1) continue the status quo, the foundation of which the court had rejected
as violative of the ESA and the continuation of which it had concluded could
irreparably harm listed species, or (2) order modifications. After considering the
positions of the parties, the district court adopted one of the plaintiffs’
suggestions: mandatory summer spills over selected dams. It rejected the
plaintiffs’ other major request, namely that the court order a decrease in the water
particle travel time by 10% in specified areas.9
The district court’s selection of a remedy of selected spills was based on
expert opinion tendered by the plaintiffs and evidence in the historical record.
Frederick Olney, a former fishery biologist for the U.S. Fish and Wildlife Service
with thirty-five years of experience in the field, testified by affidavit that spilling
water for fish passage was a “cornerstone of protection and mitigation programs”
in the area and that there was “regional agreement that spill is the safest passage
route through mainstream hydroelectric projects.” He testified that “recent
9
The district court also appointed a technical advisor, Dr. Howard Horton,
to aid it in understanding the various reports, studies and opinions regarding the
status of the listed species and effects of FCRPS.
28
information indicates that transportation [of fish] is not providing the benefits
previously assumed,” citing the 2004 BiOp statement that “it is uncertain whether
transport provides a benefit or a detriment for Snake River fall Chinook.” Olney
concluded that the plaintiffs’ request for summer spills would pose less risk for
migrating fish than the proposed operations.
The plaintiffs also tendered the opinion of Stephen Pettit, a former fisheries
research biologist for the Idaho Department of Fish and Game, who similarly
concluded that the plaintiffs’ proposed spills would “reduce significantly, even
substantially, the harmful effects ESA-listed salmon and steelhead would
otherwise experience under the 2004 BiOp.”
In addition to the opinions of these experts, and others, the district court
considered the previous positive results of the prior use of spills for assisting
migrating summer salmon. The 2000 BiOp concluded that “relative to other
passage routes currently available, direct juvenile survival is highest through
spillbays.” In reaching this conclusion, the agency took into consideration the
possibility of gas bubble trauma and elevated temperatures. The agency also
concluded that spillway passage “should be the baseline against which other
passage methods are measured.” Because “juvenile survival is generally higheset
through this passage route,” the 2000 BiOp recommended that “measures that
29
increase juvenile fish passage over FCRPS project spillways are the highest
priority unless it can be shown that alternative passage improvements would
provide comparable survival.” The district court’s action was in accord with the
consulting agency’s findings and recommendations in its 2000 BiOp, which was
the only operative document at the time, and was in conformance with the
historical belief that spillway passage produced the highest survival of the species.
This historical assumption was not contested in the 2004 BiOp; rather, it asserted
that alternative transportation could provide comparable, but not necessarily
better, survival rates.
In short, without summarizing all of the voluminous evidence in the record,
the district court had a more than sufficient basis upon which to conclude that
summer spills would provide the best and safest alternative to the planned
operations contemplated in the 2004 BiOp that was rejected by the court.
The federal appellants and other defendants vigorously contest the
conclusions of the experts tendered by the plaintiffs. The defendants offered
substantial expert counter-testimony in opposition to the proposed spills, with
experts opining that:
• Because the migratory patterns and river conditions are so different, it
is inappropriate to extrapolate the experience from previous spills
30
involving adult salmon at different locations and times to the summer
spills proposed by the plaintiffs to assist juvenile migrating salmon.
• Although passage over a spillway may result in higher survival, the
falling water over the dam increases the amount of atmospheric gases
that are dissolved in the water, which may cause “gas bubble trauma”
and damage fish. In addition, spills may cause an increase in water
temperature during the summer months, further harming the fish.
• Research indicates that there is no apparent difference in adult return
rates between fish that are transported and those that remain in the
river to migrate over spillways. New research also indicates that a
significant number of salmon hold over in freshwater and migrate to
the ocean during their second year of life, which may mean that
hastening the transportation of salmon downstream may not
necessarily be beneficial.
• The total number of adult Snake River Chinook Salmon that migrated
upriver has increased significantly.
• It is highly imprudent and highly risky to try an untested operation in
a critically low water year. Transportation rather than spillage is the
safest means of passage in a low water year.
• Ordering spills at certain locations will adversely affect other
endangered species.
These are significant and serious concerns. However, it is not our task to
weigh the evidence presented to the district court; rather we must decide whether
the district court abused its discretion. An abuse of discretion is “a plain error,
discretion exercised to an end not justified by the evidence, a judgment that is
clearly against the logic and effect of the facts as are found.” Wing v. Asarco, Inc.,
31
114 F.3d 986, 988 (9th Cir. 1997) (quoting Int’l Jensen, Inc. v. Metrosound
U.S.A., Inc., 4 F.3d 819, 822 (9th Cir. 1993)) (internal quotation marks omitted).
The abuse of discretion standard requires that we “not reverse a district court's
exercise of its discretion unless we have a definite and firm conviction that the
district court committed a clear error of judgment in the conclusion it reached.”
SEC v. Coldicutt, 258 F.3d 939, 941 (9th Cir. 2001).
The federal appellants argue that the district court was required to defer to
agency expertise. Courts, as a general matter, ought to defer to an agency’s
scientific or technical expertise. “Deference to the informed discretion of the
responsible federal agencies is especially important, where, as here, the agency’s
decision involves a high level of technical expertise.” R-CALF, typescript op. at
24. However, “[t]he deference accorded an agency's scientific or technical
expertise is not unlimited.” Brower v. Evans, 257 F.3d 1058, 1067 (9th Cir. 2001)
(citing Defenders of Wildlife v. Babbitt, 958 F. Supp. 670, 679 (D.D.C. 1997)).
Deference is not owed when “‘the agency has completely failed to address some
factor consideration of which was essential to [making an] informed decision.’” Id.
(quoting Inland Empire Pub. Lands Council v. Schultz, 992 F.2d 977, 981 (9th
Cir. 1993) (internal citations omitted)). Here, the district court had already
invalidated the agency biological opinion upon which the operations were based,
32
in large part because it omitted factors essential to the analysis. As the district
court noted, NMFS had completely reversed course in its 2004 BiOp, particularly
in its statutory interpretation of the environmental baseline. "An agency
interpretation of a relevant provision which conflicts with the agency's earlier
interpretation is 'entitled to considerably less deference,' than a consistently held
agency view." INS v. Cardoza-Fonseca, 480 U.S. 421, 446, n. 30 (1987) (quoting
Watt v. Alaska, 451 U.S. 259, 273 (1981)). The district court had rejected the
underlying premise of the agency’s methodology and the 2004 BiOp. Therefore,
there was no formal agency finding to which deference might arguably be owed.
Rather, the government chose to present its case through expert affidavit.
Throughout the course of these proceedings, the government has adhered to
its position that it would not alter its planned summer dam operations which the
district court had determined could cause irreparable harm. Indeed, the
government’s own 2000 BiOp had concluded that the present operations of the
Columbia River System would jeopardize eight of the listed species. In its
summary judgment order, the district court had made the factual finding that the
listed species were “in serious decline and not evidencing signs of recovery.”
Therefore, in the absence of an approved, final biological opinion, the district
court did not abuse its discretion in considering the record evidence. We conclude
33
that the district court did not abuse its discretion in ordering preliminary injunctive
relief.
C
The federal appellants also suggest that, even if preliminary injunctive relief
were appropriate, the district court’s order must be vacated because it is not
narrowly tailored. The appellants did not present this argument to the district
court, nor have they sought modification of the injunction. On appeal, the
appellants have declined to identify how the injunction should be narrowly
tailored, even under questioning. There is also some tension between appellants’
argument on appeal that the district court is micromanaging the Columbia River
System and its argument that the district court was not specific or detailed enough
in its order. The gist of the federal appellants’ argument seems to be that the
purported lack of narrow tailoring should result in a vacation of the entire
injunction, rather than any modification designed to achieve narrow tailoring.
That being said, all sides agree that modifications to the district court’s
order have been required. Indeed, the district court anticipated this by
encouraging the parties “to engage in discussions to reach a consensus on issues of
spill.” The federal appellants have requested that we allow them to supplement
the appellate record with declarations identifying specific problems with the
34
district court’s injunction. The plaintiffs have opposed the motion; however, in
the alternative, they have tendered supplemental declarations.
Without reviewing the tendered evidence or outlining the evidence in the
record indicating that specific issues at certain sites may require modification of
the preliminary injunction, we conclude that there are issues that have arisen after
the issuance of the preliminary injunction that may require modification of the
district court order. It is inappropriate for us to decide those questions for the first
time on appeal, and we therefore deny the parties’ motions to supplement the
record. Although we conclude that the district court did not abuse its discretion in
granting the preliminary injunction, we remand the question of whether
modification or “narrow tailoring” of the order is required to the district court for
its consideration in the first instance.
The BPA Customer Group has also argued that the district court’s order
should be vacated as not narrowly tailored. The basis of the BPA Customer
Group’s argument is different. It argues that the order insufficiently relates the
remedy to the alleged ESA violation. Although the BPA Customer Group raised
this issue in their memorandum in opposition to the preliminary injunction, the
district court did not explicitly address this issue in its preliminary injunction
order. In light of our decision to remand for consideration of modifications to the
35
preliminary injunction, we also remand this question to the district court for its
consideration in the first instance. We urge the parties and the district court to
resolve these remanded issues as expeditiously as possible.
IV
In sum, we affirm the district court’s issuance of a preliminary injunction,
but remand to the district court the question of whether the injunction should be
more narrowly tailored or modified.
AFFIRMED AND REMANDED.
36
COUNSEL
Mark Eames, NOAA Office of General Counsel, Seattle, Washington; Gayle Lear,
Assistant Division Counsel, Northwestern Division, U.S. Army Corps of
Engineers, Portland, Oregon; Kelly A. Johnson, Acting Assistant Attorney
General, Fred Disheroon, Ruth Ann Lowery, Ellen J. Durkee, and Jennifer L.
Scheller, Attorneys, Environment & Natural Resources Division, U.S. Department
of Justice, Washington D.C., for federal defendants-appellants.
Matthew A. Love and Sam Kalen, Van Ness Feldman, P.C., Seattle, Washington,
for defendants-appellants BPA Customer Group.
Lawrence G. Wasden, Attorney General, Clive J. Strong, Deputy Attorney
General, and Clay R. Smith, Deputy Attorney General, State of Idaho, Boise,
Idaho, for defendant-intervenor-appellant State of Idaho.
Todd D. True and Stephen D. Mashuda, Earthjustice, Seattle, Washington; Daniel
J. Rohlf, Pacific Environmental Advocacy Center, Portland, Oregon, for plaintiffs-
appellees National Wildlife Federation.
Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, David E.
Leith, Assistant Attorney General, and Stephen K. Bushong, State of Oregon,
Salem, Oregon, for plaintiff-intervenor-appellee State of Oregon.
Koward G. Arnett, Karnopp Petersen, LLP, Bend, Oregon; David J. Cummings,
Nez Perce Tribe, Lapwai, Idaho; Christopher B. Leahy, Fredericks, Pelcyger &
Hester, LLC, Louisville, Colorado; Tim Weaver, Law Offices of Tim Weaver,
Yakima, Washington, for amici curiae Treaty Tribes.
Robert D. Thornton and Paul S. Weiland, Nossaman, Guthner, Knox & Elliott,
LLP, Irvine, California, for amicus curiae National Association of Homebuilders.
Rob McKenna, Attorney General, and Michael S. Grossman, Assistant Attorney
General, State of Washington, Olympia, Washington, for amicus curiae State of
Washington.
37
John C. Bruning, Attorney General, David D. Cookson, Assistant Attorney
General, State of Nebraska, Lincoln, Nebraska; Thomas R. Wilmoth, Special
Assistant Attorney General, Fennemore Craig, P.C., Lincoln, Nebraska, for amicus
curiae State of Nebraska.
38