Plaintiffs are environmental conservation groups that filed its action against the Federal Defendants Biological Opinion regarding salmonid species impacted the by Federal Columbia River Power System. Following several legal challenges to modify a biological opinion, the District Court held that the Federal Defendants violated the federal Endangered Species Act (ESA) and National Environmental Policy Act (NEPA) and granted plaintiffs’ injunctive relief to address violations. On timely appeal, the Ninth Circuit Court of Appeals upheld the injunctions. [National Wildlife Federation v. National Marine Fisheries Service, ___F.3d___, Case No. 17-35462 (9th Cir. Apr. 2, 2018).]

Background

The Endangered Species Act’s § 7 includes a congressional mandate to provide first priority to conserving endangered species, an overriding statutory priority applicable to other federal agencies. TVA v. Hill, 437 U.S. 153, 185 (1978). In applying § 7, an agency must “give the benefit of the doubt” to the species for which there is no exception. Sierra Club v. Marsh, 816 F.2d 1376, 1386 (9th Cir. 1987); TVA, infra, at 173. The ESA requires federal agencies to “insure” that their actions are not likely to jeopardize the continued existence of threatened and endangered salmon and steelhead or adversely modify the species’ designated critical habitat. 16 U.S.C. § 1536(a)(2).

At issue in this case is the impact of the Federal Columbia River Power System (FCRPS) on salmon and steelhead species traveling up and down the Columbia and Snake Rivers, to hatch and migrate downstream into the Pacific Ocean. The wild populations of both species have decreased significantly in recent years and plaintiffs allege that these species face danger from dams in the FCRPS system.

This litigation, which began in 2001, concerns the application of ESA to the management of the FCRPS. In that regard, the Ninth Circuit reviewed five prior Biological Opinions covering the operation of the FCRPS; the Court rejected the four previous opinions as arbitrary, capricious, and contrary to law. At issue if the court’s review of the fifth, the 2014 Biological Opinion on Operation of the Federal Columbia River Power System, issued by NOAA Fisheries on January 17, 2014 (2014 BiOp), which drew this challenge.

Plaintiff’s’ allege that the:

• . . .2014 BiOp thus continues to use the illegal and arbitrary ‘trending towards recovery’ jeopardy standard and framework developed for the 2008 BiOp, although it compounds the flaws of this standard by converting an irrational approach to uncertainty in 2008 into an equally irrational basis for asserting success in 2014. The 2014 BiOp also continues to rely on a suite of hoped-for mitigation actions in estuary and tributary habitat, as well as uncertain actions to address other sources of salmon mortality, without specifically identifying many of these actions or rationally addressing their risks. Plaintifffs’ Motion for Summary Judgment, Introduction.

Plaintiffs’ allege that the 2014 BiOp further fails to address rationally the effects of climate change on threatened and endangered salmon and on the actions in the 2014 BiOp’s reasonable and prudent alternative (RPA). And it fails to account for adverse cumulative effects or rationally evaluate destruction or adverse modification of critical habitat. As to NOAA, it  alleges that endangered southern resident killer whales are not likely to be adversely affected by FCRPS operations because the operations will not further reduce the species’ admittedly inadequate food supply.

Plaintiffs’ filed suit challenging the 2014 BiOp for violations of the ESA alleging that the U.S. Army Corps of Engineers (Corps) and Bureau Reclamation (Bureau) violated NEPA. In May 2016, the U.S. District Court granted partial summary judgment to plaintiffs—holding that the National Marine Fisheries Service (NMFS) violated the ESA and the Administrative Procedure Act (APA) “in determining in the 2014 BiOp that the [project] alternative did not jeopardize listed species. It also concluded that the Corps and Reclamation violated NEPA by not preparing a proper EIS and NEPA.

In April 2017, the District Court entered an amended order granting in part, and denying in part, plaintiffs’ injunction motions filed for ESA violations identified by the District Court. The District Court considered whether plaintiffs’ motions were barred by Federal Rule of Civil Procedure 60(b); holding that even if that rule applied it could grant the requested relief under such.

Regarding injunctive relief under the ESA, the District Court held that there is no presumption or irreparable injury where there has been an ESA violation, “but that the court was stripped of discretion to weigh other traditional equitable factors.” The District Court held that plaintiffs did not have 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-requested operations speciflcally are causing irreparable harm.

Citing to the record, the District Court held there was sufficient finding of irreparable harm sufficient to order increase spring spill of water to be released from the FCRPS.

Finally, the District Court considered plaintiffs’ NEPA capital expenditure injunction request holding 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 Federal Defendants filed timely appeals.

The Ninth Circuit’s Decision

May 2016 Order Was Not Final

The Court of Appeals upheld the lower court’s ruling that Rule 60(b) does not bar plaintiffs’ injunction motions. Rule 60(b) provides grounds for relief “from a final judgment, order, or proceeding,” the word “final” designating order that terminate litigation and are subject to appeal. Corn v Guam Coral Co., 318 F.2d 622, 628-29 (9th Cir. 1963). Giving this rule a practical construction, the court held that the May 2016 order was not final as its terms provided the District Court with retained jurisdiction over the matter to ensure that the federal defendants developed the appropriate mitigation measures.

The Spring Spill Injunction

The Court also held that the District Court did not abuse its discretion in granting the spring spill injunction.

The court stated that the ESA “strips courts of at least some of their equitable discretion in determining whether injunctive relief is warranted.” Cottonwood Envt’l Law Ctr. V. U.S. Forest Serv., 789 F.3d 1075, 1088 (9th Cir. 2015). The ESA effectively removes the latter three factors in the four-factor injunctive relief test from the court’s equitable discretion—therefore, when considering an injunction under the ESA, the court presumes 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.

This presumption still required plaintiffs’ to prove a “possibility” of irreparable harm. Here, the District Court did not err when finding irreparable harm without finding an extinction-level threat to the listed species in the remaining two years of the remain period.

Irreparable harm may be caused by activities more broadly described by plaintiffs’, however, at a minimum, plaintiffs had submitted sufficient evidence causally tying the FCRPS dam operations, as a whole, the irreparable injury to the listed species as the current spill regime was not releasing water in a sufficient manner to not make the listed species:

• . . .vulnerable to extinction from shock events, and this vulnerability was confirmed by climactic conditions in 2015.

The NEPA Claim

Finally, the Court held that the lower court’s NEPA disclosure order was not properly before it as the order was not appealable.

Conclusion and Implications

This case is the most current example of the conflict between the environmental and economic costs of dams. Studies have linked the significant decline of salmon and steelhead numbers to the construction and operation of dams which shock the species, prevent it from returning to spawning grounds, and kill a number of the species as part of dam operations. The court’s decision is available online at: http://cdn.ca9.uscourts.gov/datastore/opinions/2018/04/02/17-35462.pdf

(Thierry Montoya)