National Wildlife Federation v. Nmfs ( 2018 )

FILED
FOR PUBLICATION
APR 2 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONAL WILDLIFE FEDERATION; No. 17-35462
IDAHO WILDLIFE FEDERATION;
WASHINGTON WILDLIFE D.C. No. 3:01-cv-00640-SI
FEDERATION; SIERRA CLUB;
PACIFIC COAST FEDERATION OF
FISHERMEN’S ASSOCIATIONS, INC.; OPINION
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,
STATE OF OREGON,
Intervenor-Plaintiff-
Appellee,
v.
NATIONAL MARINE FISHERIES
SERVICE; U.S. ARMY CORP OF
ENGINEERS; UNITED STATES
BUREAU OF RECLAMATION,
Defendants-Appellants,
and
STATE OF WASHINGTON; STATE OF
MONTANA; STATE OF IDAHO;
KOOTENAI TRIBE OF IDAHO;
CONFEDERATED SALISH AND
KOOTENAI TRIBES; INLAND PORTS
AND NAVIGATION GROUP;
NORTHWEST RIVER PARTNERS;
NORTHWEST IRRIGATION
UTILITIES; PUBLIC POWER
COUNCIL; COLUMBIA-SNAKE RIVER
IRRIGATORS ASSOCIATION,
Intervenor-Defendants.
NATIONAL WILDLIFE FEDERATION; No. 17-35463
IDAHO WILDLIFE FEDERATION;
WASHINGTON WILDLIFE D.C. No. 3:01-cv-00640-SI
FEDERATION; SIERRA CLUB;
PACIFIC COAST FEDERATION OF
FISHERMEN’S ASSOCIATIONS, INC.;
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,
2
STATE OF OREGON,
Intervenor-Plaintiff-
Appellee,
v.
NATIONAL MARINE FISHERIES
SERVICE; U.S. ARMY CORP OF
ENGINEERS; UNITED STATES
BUREAU OF RECLAMATION,
Defendants,
STATE OF WASHINGTON; STATE OF
MONTANA; STATE OF IDAHO;
KOOTENAI TRIBE OF IDAHO;
CONFEDERATED SALISH AND
KOOTENAI TRIBES; INLAND PORTS
AND NAVIGATION GROUP;
NORTHWEST IRRIGATION
UTILITIES; PUBLIC POWER
COUNCIL; COLUMBIA-SNAKE RIVER
IRRIGATORS ASSOCIATION,
Intervenor-Defendants,
and
NORTHWEST RIVER PARTNERS,
Intervenor-Defendant-
Appellant.
3
NATIONAL WILDLIFE FEDERATION; No. 17-35465
IDAHO WILDLIFE FEDERATION;
WASHINGTON WILDLIFE D.C. No. 3:01-cv-00640-SI
FEDERATION; SIERRA CLUB;
PACIFIC COAST FEDERATION OF
FISHERMEN’S ASSOCIATIONS, INC.;
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,
STATE OF OREGON,
Intervenor-Plaintiff-
Appellee,
v.
NATIONAL MARINE FISHERIES
SERVICE; U.S. ARMY CORP OF
ENGINEERS; UNITED STATES
BUREAU OF RECLAMATION,
Defendants,
STATE OF WASHINGTON; STATE OF
MONTANA; KOOTENAI TRIBE OF
IDAHO; CONFEDERATED SALISH
AND KOOTENAI TRIBES; INLAND
4
PORTS AND NAVIGATION GROUP;
NORTHWEST RIVER PARTNERS;
NORTHWEST IRRIGATION
UTILITIES; PUBLIC POWER
COUNCIL; COLUMBIA-SNAKE RIVER
IRRIGATORS ASSOCIATION,
Intervenor-Defendants,
and
STATE OF IDAHO,
Intervenor-Defendant-
Appellant.
NATIONAL WILDLIFE FEDERATION; No. 17-35466
IDAHO WILDLIFE FEDERATION;
WASHINGTON WILDLIFE D.C. No. 3:01-cv-00640-SI
FEDERATION; SIERRA CLUB;
PACIFIC COAST FEDERATION OF
FISHERMEN’S ASSOCIATIONS, INC.;
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,
5
STATE OF OREGON,
Intervenor-Plaintiff-
Appellee,
v.
NATIONAL MARINE FISHERIES
SERVICE; U.S. ARMY CORP OF
ENGINEERS; UNITED STATES
BUREAU OF RECLAMATION,
Defendants,
STATE OF WASHINGTON; STATE OF
MONTANA; STATE OF IDAHO;
KOOTENAI TRIBE OF IDAHO;
CONFEDERATED SALISH AND
KOOTENAI TRIBES; NORTHWEST
RIVER PARTNERS; NORTHWEST
IRRIGATION UTILITIES; PUBLIC
POWER COUNCIL; COLUMBIA-
SNAKE RIVER IRRIGATORS
ASSOCIATION,
Intervenor-Defendants,
and
INLAND PORTS AND NAVIGATION
GROUP,
Intervenor-Defendant-
Appellant.
6
NATIONAL WILDLIFE FEDERATION; No. 17-35467
IDAHO WILDLIFE FEDERATION;
WASHINGTON WILDLIFE D.C. No. 3:01-cv-00640-SI
FEDERATION; SIERRA CLUB;
PACIFIC COAST FEDERATION OF
FISHERMEN’S ASSOCIATIONS, INC.;
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,
STATE OF OREGON,
Intervenor-Plaintiff-
Appellee,
v.
NATIONAL MARINE FISHERIES
SERVICE; U.S. ARMY CORP OF
ENGINEERS; UNITED STATES
BUREAU OF RECLAMATION,
Defendants,
STATE OF WASHINGTON; STATE OF
IDAHO; KOOTENAI TRIBE OF IDAHO;
CONFEDERATED SALISH AND
KOOTENAI TRIBES; INLAND PORTS
7
AND NAVIGATION GROUP;
NORTHWEST RIVER PARTNERS;
NORTHWEST IRRIGATION
UTILITIES; PUBLIC POWER
COUNCIL; COLUMBIA-SNAKE RIVER
IRRIGATORS ASSOCIATION,
Intervenor-Defendants,
and
STATE OF MONTANA,
Intervenor-Defendant-
Appellant.
NATIONAL WILDLIFE FEDERATION; No. 17-35502
IDAHO WILDLIFE FEDERATION;
WASHINGTON WILDLIFE D.C. No. 3:01-cv-00640-SI
FEDERATION; SIERRA CLUB;
PACIFIC COAST FEDERATION OF
FISHERMEN’S ASSOCIATIONS, INC.;
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,
8
STATE OF OREGON,
Intervenor-Plaintiff-
Appellee,
v.
NATIONAL MARINE FISHERIES
SERVICE; U.S. ARMY CORP OF
ENGINEERS; UNITED STATES
BUREAU OF RECLAMATION,
Defendants,
STATE OF WASHINGTON; STATE OF
MONTANA; STATE OF IDAHO;
INLAND PORTS AND NAVIGATION
GROUP; NORTHWEST RIVER
PARTNERS; NORTHWEST
IRRIGATION UTILITIES; PUBLIC
POWER COUNCIL; COLUMBIA-
SNAKE RIVER IRRIGATORS
ASSOCIATION,
Intervenor-Defendants,
and
KOOTENAI TRIBE OF IDAHO;
CONFEDERATED SALISH AND
KOOTENAI TRIBES,
Intervenor-Defendants-
Appellants.
9
NATIONAL WILDLIFE FEDERATION; No. 18-35111
IDAHO WILDLIFE FEDERATION;
WASHINGTON WILDLIFE D.C. No. 3:01-cv-00640-SI
FEDERATION; SIERRA CLUB;
PACIFIC COAST FEDERATION OF
FISHERMEN’S ASSOCIATIONS, INC.;
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,
STATE OF OREGON,
Intervenor-Plaintiff-
Appellee,
v.
NATIONAL MARINE FISHERIES
SERVICE; U.S. ARMY CORP OF
ENGINEERS; UNITED STATES
BUREAU OF RECLAMATION,
Defendants-Appellants,
and
STATE OF WASHINGTON; STATE OF
MONTANA; STATE OF IDAHO;
10
INLAND PORTS AND NAVIGATION
GROUP; NORTHWEST RIVER
PARTNERS; NORTHWEST
IRRIGATION UTILITIES; PUBLIC
POWER COUNCIL; COLUMBIA-
SNAKE RIVER IRRIGATORS
ASSOCIATION; KOOTENAI TRIBE OF
IDAHO; CONFEDERATED SALISH
AND KOOTENAI TRIBES,
Intervenor-Defendants.
NATIONAL WILDLIFE FEDERATION; No. 18-35152
IDAHO WILDLIFE FEDERATION;
WASHINGTON WILDLIFE D.C. No. 3:01-cv-00640-SI
FEDERATION; SIERRA CLUB;
PACIFIC COAST FEDERATION OF
FISHERMEN’S ASSOCIATIONS, INC.;
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,
STATE OF OREGON,
Intervenor-Plaintiff-
Appellee,
11
v.
NATIONAL MARINE FISHERIES
SERVICE; U.S. ARMY CORP OF
ENGINEERS; UNITED STATES
BUREAU OF RECLAMATION,
Defendants,
STATE OF WASHINGTON; STATE OF
MONTANA; STATE OF IDAHO;
INLAND PORTS AND NAVIGATION
GROUP; NORTHWEST IRRIGATION
UTILITIES; PUBLIC POWER
COUNCIL; COLUMBIA-SNAKE RIVER
IRRIGATORS ASSOCIATION;
KOOTENAI TRIBE OF IDAHO;
CONFEDERATED SALISH AND
KOOTENAI TRIBES,
Intervenor-Defendants,
and
NORTHWEST RIVER PARTNERS,
Intervenor-Defendant-
Appellant.
Appeals from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted March 20, 2018
San Francisco, California
12
BEFORE: THOMAS, Chief Judge, and TASHIMA and PAEZ, Circuit Judges.
Opinion by Chief Judge Sidney R. Thomas
THOMAS, Chief Judge:
These consolidated appeals are the latest round of a long-running dispute
over salmon and steelhead species listed under the Endangered Species Act
(“ESA”), 16 U.S.C. §§ 1531-1544. Three federal agencies (collectively, “federal
defendants”), joined by intervenor-defendants, challenge injunctions issued by the
district court to protect the listed species. At the request of the National Wildlife
Federation and the State of Oregon (collectively, “plaintiffs”), the district court
ordered the agencies to conduct certain spill operations and fish monitoring
operations at dams and related facilities in the Federal Columbia River Power
System (“FCRPS”). The district court also directed the agencies to disclose to
plaintiffs information on planned projects at certain dams in order to ensure that
major expenditures do not bias the preparation of an environmental impact
statement (“EIS”) under the National Environmental Policy Act (“NEPA”), 42
U.S.C. §§ 4321-4347. We affirm the district court’s grant of the spill and fish
monitoring injunctions, and we dismiss the appeal of the NEPA disclosure order.
13
I
The Columbia River is the fourth largest river on the North American
continent. It flows for more than 1,200 miles from the Canadian Rockies to the
Pacific Ocean, and it drains an area of approximately 258,000 square miles,
including territory in seven states and one Canadian province. The Snake River is
the largest tributary of the Columbia River. It flows for more than 1,000 miles
from Yellowstone National Park until it meets the Columbia River in Washington,
and it drains an area of approximately 108,000 square miles, including territory in
six states.
Every year, salmon and steelhead (collectively, “salmonids”) travel up and
down the Columbia and Snake Rivers, hatching in fresh water, migrating
downstream to the Pacific Ocean on their way to adulthood, and later returning
upstream to spawn and die. The wild salmonid population has decreased
significantly in recent years. Today, there are thirteen species or populations of
Columbia River or Snake River salmonids that are listed as either endangered or
threatened under the ESA.
When these fish migrate downstream to the Pacific Ocean, they face danger
from dams in the FCRPS. The dams contain turbines that produce power from the
flow of water. As the fish pass through the dams on their journey to the ocean, a
14
high number die from swimming through the turbines. In light of this danger, each
dam in the migration corridor of the mainstem Columbia and Snake Rivers has a
bypass system to allow fish to avoid the turbines. At some dams, the bypass
systems consist of screens in front of the turbine intakes that divert the fish into
passageways through the dams and downstream. At others, the bypass systems
divert the fish into barges for transportation around the dams.
The FCRPS includes eight multipurpose dams, reservoirs, and related
facilities on the mainstem Columbia and Snake Rivers in Montana, Washington,
Idaho, and Oregon. Three federal agencies coordinate to manage FCRPS dams:
the U.S. Army Corps of Engineers (the “Corps”), the U.S. Bureau of Reclamation
(“Reclamation”), and the Bonneville Power Administration (“Bonneville”). The
Corps operates the eight mainstem dams, Reclamation operates other FCRPS
dams, and Bonneville markets and transmits power generated from the
hydroelectric projects. States also play a role in dam management through the
governance of water diversions from the rivers and through state conservation
programs. A number of federally-recognized Indian Tribes retain treaty fishing
rights in the waters of the Columbia and Snake Rivers.
This litigation, which has been ongoing since 2001, primarily concerns
application of the ESA to the management of the FCRPS. Section 7 of the ESA
15
requires federal agencies, in consultation with what is known as the “consulting
agency,” to conserve species listed under the ESA. Section 7(a)(2) of the ESA
requires each federal agency 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 a listed species’ designated critical habitat. 16 U.S.C. §
1536(a)(2). Section 7 and its implementing regulations delineate the consultation
process for determining the biological impacts of a proposed action. 16 U.S.C. §
1536(a)-(c); 50 C.F.R. § 402. In brief, if a proposed federal action may jeopardize
listed species or adversely modify critical habitat, the “acting agency” must consult
with the “consulting agency.” 50 C.F.R. §§ 402.13, 402.14. Here, the acting
agencies are the Corps and Reclamation, and the consulting agency is the National
Marine Fisheries Service (“NMFS”).
The consulting agency prepares a biological opinion (“BiOp”) setting forth
its conclusions about whether the proposed action will affect a listed species or its
designated critical habitat. 16 U.S.C. § 1536(b)(3)(A). An action jeopardizes a
listed species if it “reasonably would be expected, directly or indirectly, to reduce
appreciably the likelihood of both the survival and recovery of a listed species in
the wild by reducing the reproduction, numbers, or distribution of that species.” 50
16
C.F.R. § 402.02. If the proposed action is likely to jeopardize a listed species’
existence or adversely modify its critical habitat, the BiOp must set forth a
reasonable and prudent alternative to the action (the “Alternative”) that is not likely
to jeopardize the species or adversely modify its habitat, if possible. 16 U.S.C. §
1536(b)(3)(A).
If the BiOp concludes that jeopardy is not likely and that there will not be
adverse modification of critical habitat, or that the Alternative 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.” If followed, the Incidental Take Statement exempts
the action agency from the prohibition on takings found in section 9 of the ESA.
16 U.S.C. § 1536(b)(4); Aluminum Co. of Am. v. Adm’r, Bonneville Power Admin.,
175 F.3d 1156, 1159 (9th Cir. 1999).
The instant litigation also involves application of NEPA to the management
of the FCRPS. NEPA requires that federal agencies complete an EIS in connection
with “every recommendation or report on proposals for legislation and other major
Federal actions significantly affecting the quality of the human environment.” 42
U.S.C. § 4332(2)(C).
17
In addition to evaluating the proposed agency action, an EIS must
“[r]igorously explore and objectively evaluate all reasonable alternatives” to that
action. 40 C.F.R. § 1502.14(a). “NEPA’s purpose is twofold: (1) to ensure that
agencies carefully consider information about significant environmental impacts
and (2) to guarantee relevant information is available to the public.” N. Plains Res.
Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1072 (9th Cir. 2011).
NMFS issued a BiOp in 2000 which concluded that operation of the FCRPS
dams jeopardized listed species but that a proposed Alternative would avoid
jeopardy. The National Wildlife Federation (“NWF”) challenged the 2000 BiOp,
initiating this litigation. The district court ruled that the BiOp was arbitrary and
capricious and remanded to NMFS to issue a new BiOp. Nat’l Wildlife Fed’n v.
Nat’l Marine Fisheries Serv. (“NWF I”), 254 F. Supp. 2d 1196 (D. Or. 2003).
NMFS issued a new BiOp in 2004, which concluded that operation of the
FCRPS dams would not jeopardize listed species. NWF filed a second
supplemental complaint challenging the 2004 BiOp, and it moved for a preliminary
injunction. The district court granted the preliminary injunction. The injunction
required the acting agencies to increase the amount of water that passed through
spillgates on certain FCRPS dams during the summer of 2005, rather than passing
the water through turbines for power generation. The increased spill was intended
18
to decrease the mortality rate of fish passing through the dams. On appeal, we held
that the district court had not abused its discretion in granting the injunction, but
we remanded to the district court to determine whether the injunction should be
more narrowly tailored. Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv.
(“NWF II”), 422 F.3d 782 (9th Cir. 2005). The district court eventually rejected
the 2004 BiOp and remanded to NMFS to issue a new BiOp. We affirmed the
district court’s rejection of the 2004 BiOp. Nat’l Wildlife Fed’n v. Nat’l Marine
Fisheries Serv. (“NWF III”), 524 F.3d 917 (9th Cir. 2008).
NMFS issued a new BiOp in 2008. As a result of additional administrative
review, NMFS issued a supplemental BiOp in 2010. Those BiOps again concluded
that operation of the FCRPS dams jeopardized listed species, but that a proposed
Alternative would avoid jeopardy. In 2011, the district court rejected the
2008/2010 BiOp. Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv. (“NWF
IV”), 839 F. Supp. 2d 1117 (D. Or. 2011). The district court ordered NMFS to
issue a new BiOp by 2014. In the interim, the court ordered the acting agencies to
implement the 2008/2010 BiOp’s Alternative and ordered increased spill to
mitigate irreparable harm from dam operations.
NMFS issued its latest BiOp in 2014. The 2014 BiOp was a supplement to
the 2008 BiOp. The 2014 BiOp again concluded that operation of the FCRPS
19
dams would jeopardize listed species and adversely modify critical habitat. It
again proposed an Alternative, consisting of a suite of 74 actions that cover a ten-
year period (from 2008 to 2018). The Alternative included modifications to
system operations and structures at the dams to improve fish passage and migration
conditions; actions to reduce salmonid predation; actions to restore salmonid
habitat; hatchery management; and research, monitoring, and evaluation of
salmonids. The Alternative includes some spill in order to enhance the survival of
migrating juvenile salmonids. The 2014 BiOp concluded that the Alternative
would avoid jeopardy and adverse modification of critical habitat.
Plaintiffs NWF and the State of Oregon filed supplemental complaints
challenging the 2014 BiOp for violations of the ESA and arguing that the Corps
and Reclamation had violated NEPA. In May 2016, the district court granted
partial summary judgment to plaintiffs. Nat’l Wildlife Fed’n v. Nat’l Marine
Fisheries Serv. (“NWF V”), 184 F. Supp. 3d 861 (D. Or. 2016). The district court
concluded that NMFS violated the ESA and the Administrative Procedure Act
(“APA”) in determining in the 2014 BiOp that the Alternative did not jeopardize
listed species. It also concluded that the Corps and Reclamation violated NEPA by
not preparing a proper EIS under NEPA.
20
However, the court concluded that NMFS did not violate the ESA or APA in
determining that the Alternative does not adversely modify critical habitat and will
not adversely affect Southern Resident Killer Whales. The court remanded to
NMFS to issue a new BiOp by March 1, 2018. It stated that it retained jurisdiction
over the litigation to ensure that the agencies develop mitigation measures to avoid
jeopardy, issue a compliant BiOp, and prepare a compliant EIS. Federal
defendants and intervenor-defendants initially appealed this order, but they have
since dismissed those appeals.
In July 2016, the district court entered a new remand order (the “July 2016
order”). That order approved a proposed five-year schedule for preparation of a
proper EIS under NEPA. The order also extended the deadline for issuing a new
BiOp to December 31, 2018. Finally, the order directed federal defendants to keep
the 2014 BiOp in place and to continue to implement its Alternative until the new
BiOp is issued.
In January 2017, plaintiffs filed motions requesting injunctive relief for the
ESA violations identified by the district court in NWF V. First, plaintiffs sought an
injunction ordering the Corps to increase spill to the maximum level that meets, but
does not exceed, existing total dissolved gas criteria allowed under state law (the
“gas cap”) from April to June at the eight mainstem FCRPS dams. The requested
21
spill would commence in April 2017 and continue for the remainder of the BiOp
remand period. The proposed injunction contained off-ramps to allow the Corps to
reduce spill for reasons such as power emergencies, health and safety, or other
issues.
Oregon also sought an injunction ordering federal defendants to operate
juvenile bypass facilities and associated Passive Integrated Transponder (“PIT”)
tag detection systems at FCRPS dams beginning in March 2017. NWF sought an
injunction under NEPA that would prohibit the Corps from making significant
capital expenditures at certain FCRPS dams during the NEPA remand period
absent court approval. Such expenditures, NWF argued, would bias the ongoing
EIS process.
In April 2017, the district court entered an amended order granting in part
and denying in part plaintiffs’ injunction motions (the “April 2017 order”). The
district court first considered whether plaintiffs’ motions were barred by Federal
Rule of Procedure 60(b). The court held that, even if Rule 60(b) applied to
plaintiffs’ motions, it could grant the requested relief under Rule 60(b)(6).
The district court granted the motions for injunctive relief under the ESA.
The court held that there is no presumption of irreparable injury where there has
been an ESA violation, but that the court was stripped of discretion to weigh other
22
traditional equitable factors. The district court held that plaintiffs did not need to
show that operating without the requested court-ordered spill during the two-year
remand period would pose an imminent threat at the species level, nor that the
Alternative’s spill-related operations specifically are causing irreparable harm.
Considering the evidence in the record—including findings from previous opinions
and orders issued as part of this litigation—the court found irreparable harm
sufficient to order increased spring spill. The court decided that implementing
increased spill in spring 2017 was too rushed, and it delayed the new spill
operations until April 3, 2018. It ordered the federal defendants, in collaboration
with the parties and regional experts, to produce a spill plan and proposed
injunction order.
The district court also granted plaintiffs’ PIT tag monitoring injunction, but
it delayed implementation until March 1, 2018. Finally, the district court
considered plaintiffs’ NEPA capital expenditure injunction request. The court
found that significant expenditures on FCRPS dams during the NEPA remand
period were likely to cause irreparable harm by creating a substantial risk of bias in
the NEPA process. The district court nevertheless denied plaintiffs’ injunction
motion, because it found that the balance of hardships and considerations of public
interest favored allowing some expenditures. However, the court directed the
23
Corps and Reclamation to disclose information to plaintiffs regarding planned
expenditures at FCRPS dams. With this information, plaintiffs could file motions
to enjoin projects that were not necessary for dam safety and that could
substantially bias the NEPA process.
Federal defendants and three intervenor-defendants timely appealed. We
consolidated these appeals.
II
Federal Rule of Civil Procedure 60(b) did not bar plaintiffs’ January 2017
injunction motions, as federal defendants and intervenor-defendants contend.
Defendants argue that NWF V was a final judgment, and thus plaintiffs’ January
2017 motions for injunctive relief were subject to Rule 60(b). Defendants further
contend that Rule 60(b)(6)—which the district court relied on in its April 2017
order—does not permit the motion. However, the May 2016 summary judgment
and remand order was not a final judgment, and thus Rule 60(b) did not apply to
the January 2017 injunction motion.
Rule 60(b) provides grounds for relief “from a final judgment, order, or
proceeding.” Fed. R. Civ. P. 60(b). The word “final” in the Rule designates orders
that terminate litigation and are subject to appeal. Corn v. Guam Coral Co., 318
F.2d 622, 628-29 (9th Cir. 1963). The final judgment rule is to be “given a
24
practical rather than a technical construction.” Sierra Forest Legacy v. Sherman,
646 F.3d 1161, 1175 (9th Cir. 2011) (internal quotation marks omitted).
Giving the finality rule a practical construction, the May 2016 order was not
final. In that order, the district court expressly stated that it “retains jurisdiction
over this matter” to ensure that federal defendants develop appropriate mitigation
measures to avoid jeopardy, issue a new BiOp that complies with the ESA and
APA, and prepare an EIS that complies with NEPA. NWF V, 184 F. Supp. 3d at
950. Moreover, federal defendants appear to have acknowledged that the May
2016 order did not preclude plaintiffs from moving for later injunctive relief. In
July 2016, before the district court issued its NEPA remand order, federal
defendants submitted a reply brief to the court in which they stated that plaintiffs
“are free to move the Court for [injunctive] relief if at some future point they deem
it necessary.” In light of the district court’s retention of jurisdiction, the May 2016
order was not a final judgment, and Rule 60(b) did not apply to plaintiffs’ January
2017 motions for injunctive relief.
This conclusion is consistent with our past rulings on the finality of remand
orders. A remand order is ordinarily final only for purposes of a government
appeal under 28 U.S.C. § 1291. HonoluluTraffic.com v. Fed. Transit Admin., 742
F.3d 1222, 1229 (9th Cir. 2014). A remand order may be final for purpose of a
25
plaintiff’s appeal in cases “when the broad relief sought could not be achieved
through the action the district court directed the agency to undertake.” Sierra
Forest Legacy, 646 F.3d at 1175. For example, an “extremely narrow” partial
remand for a “mechanical recalculation” does not preclude appellate review of a
plaintiff’s underlying claims, because the district court’s opinion is “practically
final.” Pauly v. U.S. Dep’t of Agric., 348 F.3d 1143, 1148 (9th Cir. 2003). The
May 2016 remand order was not “extremely narrow” or merely for a “mechanical
recalculation.” It granted plaintiffs most of the relief they sought. The rare
circumstances in which an order remanding to an agency can be final for purposes
of a plaintiff’s appeal do not apply here. Thus, the May 2016 order was not a final
judgment, Rule 60(b) did not apply to subsequent injunction motions, and the
district court did not err in considering plaintiffs’ January 2017 motions.
III
The district court did not abuse its discretion in granting the spring spill
injunction. Federal defendants and intervenor-defendants argue that the framework
the district court used in analyzing the request for injunctive relief was incorrect as
a matter of law and that the district court’s findings of fact were clearly erroneous.
Intervenor-defendant Northwest RiverPartners also argues that, even if plaintiffs
have established irreparable harm to listed species, they have not established
26
irreparable harm to themselves. Finally, federal defendants and intervenor-
defendants argue that the district court’s injunction was an abuse of discretion
because it was not narrowly tailored to the irreparable harm found. After due
consideration of these arguments, we conclude that the district court did not abuse
its discretion in granting the spill injunction.
A
A plaintiff seeking a permanent injunction must show:
(1) that it has suffered an irreparable injury; (2) that remedies available at
law, such as monetary damages, are inadequate to compensate for that
injury; (3) that, considering the balance of hardships between the plaintiff
and defendant, a remedy in equity is warranted; and (4) that the public
interest would not be disserved by a permanent injunction.
Cottonwood Envt’l Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1088 (9th Cir.
2015) (quoting eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)).
The district court concluded that plaintiffs here sought “interim injunctive
measures,” because the injunction may be lifted after federal defendants issue a
new BiOp and comply with NEPA. See S. Yuba River Citizens League v. Nat’l
Marine Fisheries Serv., 804 F. Supp. 2d 1045, 1052 (E.D. Cal. 2011). Thus, the
first prong of the injunction test should be modified to match the analogous prong
in the preliminary injunction test: plaintiffs must show that they are “likely to
suffer irreparable harm in the absence of preliminary relief.” Winter v. Nat. Res.
27
Def. Council, Inc., 555 U.S. 7, 20 (2008); see also S. Yuba River Citizens League,
804 F. Supp. 2d at 1052 (concluding that where a similar procedural posture
existed, the court would look at “whether the measures are necessary to prevent
irreparable injury”).
“[T]he ESA strips courts of at least some of their equitable discretion in
determining whether injunctive relief is warranted.” Cottonwood, 789 F.3d at
1090. The ESA removes the latter three factors in the four-factor injunctive relief
test from our equitable discretion. When considering an injunction under the ESA,
we presume that remedies at law are inadequate, that the balance of interests
weighs in favor of protecting endangered species, and that the public interest
would not be disserved by an injunction. Id.
The ESA does not, however, restrict our discretion to decide whether a
plaintiff has suffered an irreparable injury. Cottonwood, 789 F.3d at 1090.
“[T]here is no presumption of irreparable injury where there has been a procedural
violation in ESA cases.” Id. at 1091. Plaintiffs must demonstrate that irreparable
injury “is likely in the absence of an injunction.” Winter, 555 U.S. at 22 (emphasis
in original). A “possibility” of irreparable harm cannot support an injunction. Id.
28
B
The district court conducted a proper irreparable harm analysis. Federal
defendants and intervenor-defendants contend that the district court erred by not
focusing on extinction-level risks to the listed species during the remainder of the
remand period. They contend that the district court also erred by considering
harms from the operation of the FCRPS dams as a whole, rather than harms from
only the spill-related components of the Alternative during the remainder of the
remand period.
We review the legal conclusions underlying the grant of an injunction de
novo. Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1030 (9th Cir.
2013). We conclude that the district court did not conduct an incorrect irreparable
harm analysis.
1
The district court did not err when it found irreparable harm without finding
an extinction-level threat to the listed species in the remaining two years of the
remand period. Irreparable harm should be determined by reference to the
purposes of the statute being enforced. See Garcia v. Google, 786 F.3d 733, 744-
45 (9th Cir. 2015) (en banc) (rejecting allegations of irreparable harm because the
harm was not to legal interests meant to be protected by copyright law); see also
29
Sierra Club v. Marsh, 872 F.2d 497, 502-03 (1st Cir. 1989) (stating that the kinds
of harms that may be irreparable “will be different according to each statute’s
structure and purpose”).
One of the ESA’s central purposes is to conserve species. See 16 U.S.C. §
1531(b) (a purpose of the ESA is to provide “a program for the conservation of . . .
endangered species and threatened species”). The “plain intent” of Congress in
enacting the ESA was “to halt and reverse the trend toward species extinction,
whatever the cost.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184 (1978); see also
16 U.S.C. § 1532(3) (defining “conservation” as “the use of all methods and
procedures which are necessary to bring any endangered species or threatened
species to the point at which the measures provided pursuant to this chapter are no
longer necessary”). The ESA accomplishes its purpose in incremental steps, which
include protecting the remaining members of a species. See 16 U.S.C. §
1538(a)(1)(B) (prohibiting the “take” of any animal from a listed species). Harm
to those members is irreparable because “[o]nce a member of an endangered
species has been injured, the task of preserving that species becomes all the more
difficult.” FCC v. Rosboro Lumber, 50 F.3d 781, 785 (9th Cir. 1995); see also
Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1066 (9th Cir. 1996) (concluding that
habitat modification which significantly impaired breeding and sheltering of a
30
listed species amounted to “harm” under ESA, even though plaintiffs did not allege
extinction-level threat to the species).
Showing an extinction-level threat to listed species is not required before an
injunction can issue under the ESA:
We are not saying that a threat of extinction to the species is required before
an injunction may issue under the ESA. This would be contrary to the spirit
of the statute, whose goal of preserving threatened and endangered species
can also be achieved through incremental steps. However, what we require
is a definitive threat of future harm to protected species, not mere
speculation.
Nat’l Wildlife Fed’n v. Burlington N. R.R., 23 F.3d 1508, 1512 n.8 (9th Cir. 1994).
Thus, a threat of harm to a listed species that falls below an imminent extinction
threat can justify an injunction.
That the plaintiffs in Marbled Murrelet and Burlington N. R.R. sought
injunctions under section 9 of the ESA rather than for procedural violations of
section 7(a)(2) does not render those cases inapposite. When a court assesses
whether the purposes of a statute constrain its equitable discretion, it is error to
“focus[] on the statutory procedure rather than on the underlying substantive policy
the process was designed to effect.” Amoco Prod. Co. v. Village of Gambell, 480
U.S. 531, 544 (1987). Here, the ESA’s underlying purpose is the conservation of
species, and that purpose animates both sections 7 and 9. See Cottonwood, 789
31
F.3d at 1091-92 (recognizing that the “purposes and objectives” of the ESA
provide “fundamental direction to the district courts when confronted with a
request for injunctive relief to remedy a procedural violation of the ESA,” and the
ESA’s purpose is to conserve “species and the ecosystems that support them”).
Moreover, the fact that section 7(a)(2) permits some incidental take of
listed species does not establish that harm to individual members of a species
cannot be irreparable. Section 7(a)(2) permits incidental take only where NMFS
has determined in a valid BiOp that the activity and level of incidental take
complies with the ESA. 16 U.S.C. §§ 1536(b)(4)(A)-(B). Where, as here, the BiOp
violates the ESA, that condition is absent.
Thus, the district court was not required to find a short-term extinction-level
threat to listed species in order to find likely irreparable harm for purposes of an
ESA injunction. It was not legal error or an abuse of discretion to base the
injunction on a finding of a lesser magnitude of harm.
2
The district court did not err when it found harm from the operation of the
FCRPS dams as a whole, rather than harm from only the spill-related components
of the Alternative during the remainder of the remand period. Irreparable harm
requires a showing that the harm “is likely in the absence of the injunction.”
32
Winter, 555 U.S. at 22 (emphasis added). There must be a “sufficient causal
connection” between the alleged irreparable harm and the activity to be enjoined,
and showing that “the requested injunction would forestall” the irreparable harm
qualifies as such a connection. Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 981-
82 (9th Cir. 2011). However, a plaintiff “need not further show that the action
sought to be enjoined is the exclusive cause of the injury.” M.R. v. Dreyfus, 697
F.3d 706, 728 (9th Cir. 2012).
While the irreparable harm must be causally connected to the activity to be
enjoined, we have not held that the cause of an irreparable injury must be defined
as narrowly as federal defendants and intervenor-defendants suggest. Irreparable
harm may be caused by activities broader than those that plaintiffs seek to enjoin.
Moreover, as a practical matter, the effects on listed species of the current spill
regime on listed species cannot be cleanly divorced from the effects of FCRPS
dam operations taken as a whole. Listed species are exposed to the combined
operations of the entire system. Finally, we note that our earlier rulings in the
course of this litigation suggest that the cause of irreparable harm can be broader
than merely the activity to be enjoined. When we affirmed the 2005 spill
injunction, we considered the operation of the FCRPS dams as a whole and upheld
33
a finding of irreparable injury when “continuation of the status quo could result in
irreparable harm to a threatened species.” NWF II, 422 F.3d at 796.
The district court was not required to find irreparable harm solely from the
current spill regime in order to find irreparable harm for purposes of an ESA
injunction. It was not an abuse of discretion to base the injunction on a finding of
irreparable harm from the operation of the FCRPS dams as a whole.
C
The district court did not err in finding irreparable harm sufficient to support
injunctive relief. The district properly concluded that FCRPS dam operations were
likely to cause irreparable harm to listed salmonids. The district court also
properly concluded that plaintiffs had adequately shown harm to themselves as a
result of harm to listed salmonids.
We review the factual findings underlying the grant of an injunction for
clear error. NWF II, 422 F.3d at 794-95. A finding of fact is clearly erroneous if it
is implausible in light of the record, viewed in its entirety, or if the record contains
no evidence to support it. Id. at 794 (internal citations omitted).
1
The district court properly concluded that operation of the FCRPS dams
would cause irreparable harm to listed salmonids absent an injunction. The district
34
court relied on the record underlying NWF V as well as findings contained in
earlier opinions and orders. The district court described NWF V as finding “that
despite the 73 RPAs [reasonable and prudent alternatives] from the 2008 and 2014
BiOps, the most recent data shows that the listed species remain in a ‘precarious,’
‘imperiled,’ and ‘perilous’ state.” The data that NWF V relied on in making its
precarious state finding comes from Table 2.1-1 of the 2014 BiOp, which
summarized a five-year status review of listed species conducted in 2011. See
NWF V, 184 F. Supp. 3d at 879-80 (citing 2014 BiOp at pp. 70-71). Table 2.1-1
shows that, as measured by “Overall Viability Rating,” 50 of the 77 (64.9 percent)
evolutionary significant units of listed species are at “high risk” of extinction. This
includes 27 of 28 populations of Snake River Spring/Summer Chinook and all
populations of the Upper Columbia River Steelhead and Spring Chinook. Twenty-
two of the 77 populations (28.5 percent) are at “maintained risk” of extinction, 3 of
the 77 populations (3.8 percent) are “viable,” and 2 of the 77 populations (2.5
percent) are “highly viable.”
The district court also highlighted our opinion in NWF III, which
emphasized the highly precarious status of the listed species. See NWF III, 524
F.3d at 933. It also cited the 2011 spill injunction order, which found “ample
evidence in the record that indicates that the operation of the FCRPS causes
35
substantial harm to listed salmonids” and that the existence and operation of the
dams accounts for most of the mortality of juveniles migrating through the FCRPS.
NWF IV, 839 F. Supp. 2d at 1131. Thus, there is a likelihood of irreparable harm
to listed salmonids from the operation of the FCRPS dams as a whole.
Federal defendants and intervenor-defendants argue that the district court’s
findings were not supported by the record. First, federal defendants argue that
NWF V and the April 2017 order did not find that the 74 actions constituting the
Alternative are likely to jeopardize the continued existence of listed species,
because the only findings concerned recovery of listed species. Thus, federal
defendants argue, the April 2017 injunction order did not support a finding that any
listed species faced a threat of extinction in the short term.
As discussed above, the district court did not need to find an extinction-level
threat to the listed species in the short term. However, even if a focus only on
short-term survival were required, the district court found that the continued low
abundance of the listed species made them vulnerable to extinction. The district
court found in NWF V that NMFS had failed to analyze properly how climate
change “increases the chances of an event that would be catastrophic for the
survival” of listed species. NWF V, 184 F. Supp. 3d at 874. The district court cited
documents from NMFS that acknowledged that “[i]mpeding a species’ progress
36
toward recovery exposes it to additional risk and so reduces its likelihood of
survival.” NWF V, 184 F. Supp. 3d at 891 (quoting August 26, 1999 NOAA
Fisheries Memorandum on Habitat Approach from Rick Applegate and Donna
Darm at p. 3). The April 2017 order made clear that the sustained low abundance
of the listed species made them vulnerable to extinction from shock events, and
this vulnerability was confirmed by climatic conditions in 2015.
Federal defendants and intervenor-defendants also argue that there is a
“mismatch” between NWF V’s conclusions on the Alternative and the findings of
irreparable harm in the April 2017 order. According to defendants, this mismatch
is evidenced by NWF V’s holding that NMFS’s determination that the Alternative
is not likely to adversely modify critical habitat was not arbitrary and capricious.
NWF V, 184 F. Supp. 3d at 933. Federal defendants also cite the findings from
NMFS’s most recent five-year review of listed species, which plaintiffs have not
contested, concluding that the “risk trends” for the relevant listed species are all
either stable or improving. In light of these findings, federal defendants assert that
the district court’s finding of irreparable harm is not supported by the evidence.
However, the district court properly concluded that the listed species
remain in a “precarious” state, and that they will remain in such a state without
further conservation efforts beyond those included in the 2014 BiOp. Although the
37
district court declined to hold that NMFS’s critical habitat determination was
arbitrary and capricious, it nevertheless found that critical habitat, including “the
migration corridors [of the Snake and Columbia Rivers] are degraded, are not
functional, and do not serve their conservation role.” NWF V, 184 F. Supp. 3d at
930. The fact that the 2014 BiOp’s Alternative would lead to “significant
improvements to the mainstem habitat,” NWF V, 184 F. Supp. 3d at 933, does not
establish an absence of harm; it only establishes an incremental improvement. The
same is true of federal defendants’ argument about the five-year review allegations,
which establish some improvement but do not negate a finding of continued low
abundance and vulnerability.
Federal defendants also assert that the district court’s finding of irreparable
harm was insufficient because its use of labels like “precarious” was not grounded
in evidence beyond the fact that the species remain listed. However, the district
court did not rely merely on the fact that the species remain listed. It relied on
earlier findings that the low abundance levels of the listed species rendered them
subject to sudden shocks from, e.g., climate change; and it relied on findings that
highlighted specific threats to the listed species beyond the mere fact of their low
abundance. These findings were not clearly erroneous.
38
2
Intervenor-defendant Northwest RiverPartners argues that plaintiffs have
shown harm to the listed species, but not to themselves. The district court rejected
RiverPartners’ argument, finding that plaintiffs “have adequately shown how harm
to the listed species will affect” them. We agree.
Plaintiffs seeking injunctive relief must show that they themselves are likely
to suffer irreparable harm absent an injunction. Winter, 555 U.S. at 20 (plaintiff
must establish “that he is likely to suffer irreparable harm”); see also Friends of the
Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 181 (2000) (for
standing purposes, plaintiff must show “injury to the plaintiff” rather than “injury
to the environment”). Here, plaintiffs have shown irreparable harm to their own
interests stemming from the irreparable harm to the listed species. For example, in
support of its motion for the injunction, NWF submitted a declaration from Kevin
Lewis that described his recreational and aesthetic pursuits on Idaho’s rivers that
depend on the health of listed salmonid populations. He stated that “[t]he entire
ecosystem where I boat, photograph and recreate is degraded and harmed by the
greatly diminished levels or even absence of salmon and steelhead from their
historic habitat.” He connected his injuries to the anticipated irreparable injuries to
salmonids from dam operations, stating that “[f]ewer salmon mean fewer
39
opportunities to see them, and because healthy salmon and steelhead populations
are essential to my ability to completely enjoy the wonders of Idaho’s rivers, fewer
salmon directly harm my enjoyment of these activities.”
This evidence is consistent with evidence we have held sufficient for
irreparable harm in similar contexts. See, e.g., All. for the Wild Rockies v. Cottrell,
632 F.3d 1127, 1135 (9th Cir. 2011) (upholding finding of irreparable harm where
plaintiff organization asserted “that the Project will harm its members’ ability to
‘view, experience, and utilize’ the areas in their undisturbed state”). The district
court decisions that Northwest RiverPartners cites are not to the contrary, because
in both cases, the plaintiffs had failed even to establish irreparable harm to the
listed species. See Native Ecosystems Council v. Krueger, 40 F. Supp. 3d 1344,
1349 (D. Mont. 2014) (stating that plaintiffs did not “provide evidence of any
irreparable harm to any endangered, threatened, or proposed species or species
habitat in the absence of an injunction” or even that such species were present in
the affected area); Idaho Rivers United v. U.S. Army Corps of Eng’rs, 156 F. Supp.
3d 1252, 1264 (W.D. Wash. 2015) (concluding that “because Plaintiffs have failed
to make a strong showing that irreparable harm to the Pacific lamprey is likely,
they have also failed to establish a likelihood of irreparable harm to” themselves).
40
The district court’s finding of irreparable harm to plaintiffs themselves was
not clearly erroneous. It was not an abuse of discretion to base the injunction on
this finding.
D
The district court’s injunction was narrowly tailored to avoid the irreparable
harm that the district court identified. We review the scope of an injunction for
abuse of discretion. Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646, 653 (9th
Cir. 2002). We review the factual findings underlying an injunction for clear error.
Id. A trial court abuses its discretion “by fashioning an injunction which is overly
broad.” United States v. AMC Entm’t, Inc., 549 F.3d 760, 768 (9th Cir. 2008).
The injunction here is not overly broad.
There must be a “sufficient causal connection” between the alleged
irreparable harm and the activity to be enjoined, Perfect 10, 653 F.3d at 982, but a
plaintiff “need not further show that the action sought to be enjoined is the
exclusive cause of the injury.” M.R., 697 F.3d at 728. It is not an abuse of
discretion for a court to issue an injunction that does not completely prevent the
irreparable harm that it identifies.
The district court reviewed evidence in favor of and against additional spill,
including evidence from the Comparative Survival Study (“CSS”) annual reports;
41
the Independent Scientific Advisory Board’s (“ISAB”) February 20, 2014 review
of a spill experiment proposal based on a 2013 CSS study; and Oregon’s experts.
The district court acknowledged that federal defendants provided expert testimony
expressing “concerns regarding increased spill,” but it concluded that the evidence
opposing increased spill was “not as compelling as the evidence supporting
additional spill,” and that federal defendants’ concerns could be addressed by
narrowly tailoring the injunction. The court’s finding that “there is sufficient
scientific support for a limited injunction requiring increased spill to benefit the
listed species” is not clearly erroneous.
Federal defendants argue that plaintiffs only identified vague and
hypothetical survival benefits from increased spill. This is incorrect. In support of
its injunction motion, Oregon presented expert declarations attesting that increased
spill would improve juvenile survival and adult returns. This evidence is not of
“potential” or “hypothesized” survival benefits; it includes significant evidence
from decades of studies showing that spill volumes higher than those proposed in
the 2014 BiOp will lead to higher survival rates for outmigrating salmonids.
Federal defendants attempt to relitigate the district court’s consideration of the
scientific evidence for and against increased spill. At best, federal defendants
42
establish uncertainty about the benefits of increased spill, but the existence of
scientific uncertainty does not render the district court’s findings clearly erroneous.
That the district court described the injunctive relief as involving “some
experimentation” is not to the contrary. The district court expressed similar
uncertainty about whether the risks of gas-cap spill that federal defendants asserted
would materialize. Some uncertainty about the efficacy of an injunction does not
render the factual findings underlying the injunction clearly erroneous.
In addition to challenging the factual findings underlying the injunction,
federal defendants argue that the scope of the injunction was an abuse of
discretion. Specifically, federal defendants argue that the spill injunction intrudes
into the traditional administrative functions of federal agencies. We disagree.
In fashioning equitable relief, a court “must act within the bounds of the
statute and without intruding upon the administrative province,” but it “may adjust
its relief to the exigencies of the case in accordance with the equitable principles
governing judicial action.” Sierra Pac. Indus. v. Lyng, 866 F.2d 1099, 1111 (9th
Cir. 1989) (quoting Ford Motor Co. v. NLRB, 305 U.S. 364, 373 (1939)). The
district court’s order does not run afoul of these principles. The court ordered the
parties to develop a spill operation plan and gave them a year of lead time to do so.
This gave the agencies ample time to conduct short-term tests to consider the
43
effects of increased spill, to evaluate what problems might arise, and to make
adjustments to the spill operation plan without having to worry about violating a
court order. This does not constitute an “unbounded” exercise of discretion, and it
does not “intrud[e] upon the administrative province.” The scope of injunctive
relief is well within the ambit of the district court’s equitable authority. The order
was not an abuse of discretion.
III
The district court did not abuse its discretion in granting the PIT tag
monitoring injunction. The PIT tag monitoring injunction is evaluated using the
same modified permanent injunction standard as was used to evaluate the spill
injunction. The April 2017 order applied the correct irreparable harm analysis, was
not based on clearly erroneous findings of facts, and did not exceed the bounds of
the district court’s discretion.
Intervenor-defendants Idaho and Montana argue that the district court erred
by not finding irreparable harm specifically from the absence of PIT tag
monitoring in 2018. This repeats the argument discussed above, that the district
court’s discretion was limited to finding irreparable harm specifically from the
spill-related components of the Alternative in the remainder of the remand period.
44
As discussed, the district court’s discretion in finding irreparable harm is not so
limited. The district court’s analysis of irreparable harm was not legally erroneous.
Federal defendants and intervenor-defendants also argue that this injunction
was not based on findings in the record. However, the district court cited expert
testimony stating that “early monitoring will provide a biological benefit by
providing an alternative to turbine passage for outmigrating fish during the pre-
spill period and that the early and late tails of a run are particularly important for
species diversity.” The district court also cited Washington’s expert, who
supported early PIT tag monitoring and stated in a declaration that “[t]here is
strong scientific evidence that the tails of salmon and steelhead runs contain a
disproportionate amount of the population traits that support adaptation to
environmental changes, such as the conditions witnessed in 2015.” The court
noted that the defendants “question the volume of fish that may be migrating
early,” but it apparently did not find this evidence more persuasive than the
evidence presented by the plaintiffs. The district court’s findings were not clearly
erroneous.
The remainder of the arguments asserted against the PIT tag monitoring
injunction repeat arguments discussed above, that the district court exceeded the
bounds of its discretion by not deferring to the agencies’ judgment as to how to
45
manage the dams. For the same reasons that the spill injunction was not an abuse
of discretion, the PIT tag monitoring injunction was also not an abuse of discretion.
IV
The district court’s NEPA disclosure order is not properly before us. We
have jurisdiction over interlocutory orders from the district courts “granting,
continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or
modify injunctions.” 28 U.S.C. § 1292(a)(1). Because the district court’s order
neither granted an injunction nor modified an injunction, it is not appealable under
§ 1292(a)(1).
“An order by a federal court that relates only to the conduct or progress of
litigation before that court ordinarily is not considered an injunction and therefore
is not appealable under § 1292(a)(1).” Gulfstream Aerospace Corp. v. Mayacamas
Corp., 485 U.S. 271, 279 (1988). Orders relating to discovery, for example, are
orders that regulate the conduct of litigation and are not appealable under §
1292(a)(1). Gon v. First State Ins. Co., 871 F.2d 863, 865-66 (9th Cir. 1989).
Here, the district court ordered the Corps and Reclamation “to disclose sufficient
information to Plaintiffs regarding the planned projects at each dam during the
NEPA remand period, at appropriate and regular intervals.” The court noted that
plaintiffs could “file a new motion with the Court to enjoin” a planned project if
46
they believed that it was not needed for safe operations of the dams and would
substantially bias the NEPA process. Rather than granting “some or all of the
substantive relief sought by a complaint,” which could qualify as an injunction, the
disclosure order thus “concern[s] the conduct of the parties or their counsel” in
litigation. In re Lorillard Tobacco Co., 370 F.3d 982, 986-87 (9th Cir. 2004)
(quoting Int’l Prods. Corp. v. Koons, 325 F.2d 403, 406-07 (2d Cir. 1963)). It is
akin to a discovery order rather than an injunction, and it is not appealable under §
1292(a)(1).
Nor did the disclosure order modify the existing NEPA injunction, which
requires the Corps and Reclamation to prepare a compliant EIS within five years.
The disclosure order did not substantially change the terms of the NEPA
injunction, nor did it alter the legal relationship between plaintiffs and the agencies.
The order only required periodic disclosures with the court so that plaintiffs would
have the option of seeking later injunctive relief if necessary. This does not
constitute a modification of the existing injunction. See Cunningham v. David
Special Commitment Ctr., 158 F.3d 1035, 1037 (9th Cir. 1998) (holding that an
order modifies an injunction for purposes of § 1292(a)(1) only if it “substantially
alters the legal relations of the parties”); cf. Gon, 871 F.2d at 866 (holding that an
order modified an existing injunction because it “substantially changed the terms
47
and force of the injunction”). The district court’s disclosure order is thus not
appealable under § 1292(a)(1) and is not properly before us. If plaintiffs later seek
to enjoin expenditures on FCRPS dam projects and the district court grants such
relief, the agencies retain the option to appeal to this Court.
V
After a careful review of the record, we affirm the judgment of the district
court. It did not abuse its discretion in granting injunctive relief to plaintiffs. We
dismiss intervenor-defendants’ appeal of the district court’s NEPA disclosure
order.
AFFIRMED in part, DISMISSED in part.
48
49