United States District Court, D. Oregon
D. True and Stephen D. Mashuda, Earthjustice, Daniel J.
Rohlf, Earthrise Law Center, Lewis & Clark Law School, Of
Attorneys for Plaintiffs.
F. Rosenblum, Attorney General, and Nina R. Englander and
Sarah Weston, Assistant Attorneys General, Oregon Department
of Justice, Of Attorneys for Intervenor-Plaintiff State of
J. Cummings and Geoffrey M. Whiting, Nez Perce Tribe, Office
of Legal Counsel, P.O. Attorneys for Amicus Curiae Nez Perce
J. Williams, United States Attorney, and Coby Howell, Senior
Trial Attorney, United States Department of Justice, United
States Attorney's John C. Cruden, Assistant Attorney
General, Seth M. Barsky, Section Chief, and Michael R. Eitel
and Andrea Gelatt, Trial Attorneys, United States Department
of Justice, Environment & Natural Resources Division,
Wildlife & Marine Resources Romney S. Philpott, Trial
Attorney, United States Department of Justice, Environment
& Natural Resources Division, Natural Resources Section,
601 D Street NW, Of Attorneys for Federal Defendants.
Lawrence G. Wasden, Attorney General, Office of the Attorney
General, State of Idaho; Clive J. Strong, Division Chief, and
Clay R. Smith and Steven W. Strack, Deputy Attorneys General,
Natural Resources Division, Of Attorneys for
Intervenor-Defendant State of Idaho.
Timothy C. Fox, Attorney General, and Jeremiah D. Weiner,
Assistant Attorney General, Montana Department of Justice,
Office of the Attorney General, Mark L. Stermitz, Crowley
Fleck, PLLP, 305 South Fourth Street East, Suite 100,
Missoula, MT 59801. Of Attorneys for Intervenor-Defendant
State of Montana.
Michael S. Grossmann, Senior Counsel, State of Washington,
Office of the Attorney General, Of Attorneys for
Intervenor-Defendant State of Washington.
A. Weis, Haglund Kelley LLP, William K. Barquin, Tribal Legal
Department, Kootenai Tribe of Idaho, Portland Office, Of
Attorneys for Intervenor-Defendant Kootenai Tribe of Idaho.
M. Levit and John Harrison, Confederated Salish and Kootenai
Tribes, 42487 Complex Boulevard, P.O. Box 278, Pablo, MT
59855. Of Attorneys for Intervenor-Defendant Confederated
Salish and Kootenai Tribes.
Waldron, Walter H. Evans, III, and Carson Bowler, Schwabe,
Williamson & Wyatt, P.C., Pacwest Center, Of Attorneys
for Intervenor-Defendant Inland Ports and Navigation Group.
S. Ginsberg and Jason T. Morgan, Stoel Rives LLP, Of
Attorneys for Intervenor-Defendant Northwest RiverPartners.
L. Buchal, Murphy & Buchal LLP, S.E. Yamhill Street, Of
Attorneys for Intervenor-Defendant Columbia Snake River
W. Ogan, Karnopp Petersen LLP, Of Attorneys for Amicus Curiae
Confederated Tribes of the Warm Springs Reservation of
H. Hall, Office of Legal Counsel, Confederated Tribes of the
Umatilla Indian Reservation, Of Attorneys for Amicus Curiae
Confederated Tribes of the Umatilla Indian Reservation.
Patrick D. Spurgin, 411 North Second Street, Yakima, Of
Attorneys for Amicus Curiae Yakama Nation.
C. Gruber and Beth Baldwin, Ziontz Chestnut, Of Attorneys for
Amicus Curiae Confederated Tribes of the Colville
Waddell, P.E., Amicus Curiae, pro se.
OPINION AND ORDER
Michael H. Simon United States District Judge
H. Simon, District Judge.
State of Oregon (“Oregon”) and Plaintiffs
(collectively, “Spill Plaintiffs”) move under the
Endangered Species Act (“ESA”) for an injunction
requiring the Federal Defendants to provide spring spill
beginning in 2017 for each remaining year of the remand
period at the maximum spill level that meets, but does not
exceed, total dissolved gas (“TDG”) criteria
allowed under state law (“spill cap”) as follows:
(1) from April 3 through June 20 at Ice Harbor, Lower
Monumental, Little Goose, and Lower Granite dams; and (2)
from April 10 through June 15 at Bonneville, The Dalles, John
Day, and McNary dams. The Spill Plaintiffs request this spill
be on a 24-hour basis using the most advantageous pattern to
reduce TDG. The requested injunction, however, would allow
for reductions in spill below the spill cap by the Army Corps
of Engineers (“Corps”) under certain involuntary
spill conditions or to address specific biological
constraints, provided there is no objection from any member
of the Fish Passage Advisory Committee (“FPAC”).
The Spill Plaintiffs also move for an injunction requiring
the Federal Defendants to operate the juvenile bypass and
related Passive Integrated Transponder (“PIT”)
tag detection system beginning March 1 of each year,
commencing in 2017. Currently, this system begins in mid- to
late March. The Nez Perce Tribe supports both motions.
also move under the National Environmental Procedure Act
(“NEPA”) for an injunction prohibiting the Corps
from expending any additional funds on: (1) two planned
projects at Ice Harbor Dam, expected to cost approximately
$37 million; and (2) any new capital improvement projects or
expansion of existing projects at any of the four Lower Snake
River dams that would cost more than one million dollars, in
the absence of prior approval from the Court. Oregon and the
Nez Perce Tribe also support this motion. For the following
reasons, both motions are granted in part and denied in part.
Permanent or Preliminary Injunction
and Oregon explain that they seek “permanent”
injunctions until the Federal Defendants comply with the ESA
and NEPA. The Federal Defendants, Intervenor-Defendants, and
the Amici Curiae who oppose the requested
injunctions (collectively, “Defendants”)
variously discuss both preliminary and permanent injunction
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
Cottonwood Envt'l Law Ctr v. U.S. Forest Svc.,
789 F.3d 1075, 1088 (9th Cir. 2015) (quoting eBay Inc. v.
MercExchange, LLC, 547 U.S. 388, 391 (2006)).
seeking a preliminary injunction, a plaintiff must show that:
(1) he or she is likely to succeed on the merits; (2) he or
she is likely to suffer irreparable harm in the absence of
preliminary relief; (3) the balance of equities tips in his
or her favor; and (4) that an injunction is in the public
interest. Winter v. Nat. Res. Defense Council, Inc.,
555 U.S. 7, 20 (2008). In the Ninth Circuit, a plaintiff
seeking a preliminary injunction alternatively may show
“‘serious questions going to the merits' and
a hardship balance that tips sharply toward the plaintiff,
assuming the other two elements of the Winter test
are also met.” All. for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011). The
standard for a permanent injunction is similar, but not
identical, to the standard required for a preliminary
injunction. See Amoco Prod. Co. v. Vill. of Gambell,
480 U.S. 531, 546 n. 12 (1987) (“The standard for a
preliminary injunction is essentially the same as for a
permanent injunction with the exception that the plaintiff
must show a likelihood of success on the merits rather than
such as those sought by Plaintiffs and Oregon, are not
preliminary in the conventional sense because the Court has
already decided the merits of this case. The relief now being
sought, however, also is not permanent in the conventional
sense because it may be lifted after the Federal Defendants
comply with the Court's remand order by preparing a new
biological opinion and following NEPA. See S. Yuba River
Citizens League v. Nat'l Marine Fisheries Serv., 804
F.Supp.2d 1045, 1052 (E.D. Cal. 2011). Thus, in practical
effect, Plaintiffs seek “interim injunctive
measures.” Id. Because the Court has already
decided the merits of the ESA and NEPA claims in this case,
the Court finds the factors for granting permanent injunctive
relief to be more appropriate in considering the pending
motions, but notes that the requested injunctions will be in
place only for a limited duration.
Injunction Under the ESA
considering a motion for an injunction under the ESA,
“the ESA strips courts of at least some of their
equitable discretion in determining whether injunctive relief
is warranted.” Cottonwood, 789 F.3d at 1090.
In Cottonwood, the Ninth Circuit discussed the
Supreme Court's decision in Tennessee Valley
Authority v. Hill, 437 U.S. 153 (1978), and explained
how Congress in that case “remove[d] several factors in
the four-factor test from a court's equitable
jurisdiction.” The Ninth Circuit stated:
Hill held that courts do not have discretion to
balance the parties' competing interests in ESA cases
because Congress “afford[ed] first priority to the
declared national policy of saving endangered species.”
437 U.S. at 185. Hill also held that Congress
established an unparalleled public interest in the
“incalculable” value of preserving endangered
species. Id. at 187-88. It is the incalculability of
the injury that renders the “remedies available at law,
such as monetary damages . . . inadequate.” See
eBay, 547 U.S. at 391.
Cottonwood, 789 F.3d at 1090 (alterations in
original). The Ninth Circuit concluded that although three of
the four injunction factors are presumed in an ESA case,
“there is no presumption of irreparable injury where
there has been a procedural violation in ESA cases.”
Id. at 1091. The Ninth Circuit noted, however, that
“in light of the stated purposes of the ESA in
conserving endangered and threatened species and the
ecosystems that support them, establishing irreparable injury
should not be an onerous task for plaintiffs.”
court determines that injunctive relief is warranted, such
relief must be tailored to remedy the specific harm.
Melendres v. Arpaio, 784 F.3d 1254, 1265 (9th Cir.
2015) (“We have long held that injunctive relief must
be tailored to remedy the specific harm alleged.”
(quotation marks omitted)). “Nevertheless, the district
court has broad discretion in fashioning a remedy.”
Id. Further, an “enjoined party's history
of noncompliance with prior orders can justify greater court
involvement than is ordinarily permitted.” Id.
(quotation marks omitted).
Injunction Under NEPA
considering injunctions under NEPA, a court applies the
normal four-factor test. The Supreme Court has clarified,
however, that courts may not put their “thumb on the
scales” in considering injunctive relief under NEPA and
may not presume any factor as being met or that an injunction
is the proper remedy. Monsanto Co. v. Geertson Seed
Farms, 561 U.S. 139, 157 (2010).
case has a long history. Its background is well known to the
parties and was discussed in the Court's most recent
Opinion and Order, which resolved the parties'
cross-motions for summary judgment (“2016
Opinion”). See NMFS V, 184 F.Supp.3d at
869-72, 879-83. Six biological opinions and supplemental
biological opinions relating to the operation of the Federal
Columbia River Power System (“FCRPS”) have been
invalidated in this case by three different federal district
judges. Throughout the history of this litigation, the Court
has expressed significant concern regarding the harm caused
to ESA-listed species of salmonids by the operation of the
dams on the lower Columbia and Snake rivers.
relevant here, in its 2016 Opinion, the Court concluded that
NOAA Fisheries violated the ESA by adopting the 2014
Biological Opinion (“2014 BiOp”), in part because
the 2014 BiOp: (1) relied on an unsound methodology for
evaluating whether operations of the FCRPS would jeopardize
the continued existence of the listed species; (2) did not
adequately take into account ongoing low abundance levels;
(3) did not rationally address recovery; (4) did not
adequately consider declining recruits-per-spawner (or
returns-per-spawner); (5) relied on immediate, specific
numeric survival improvements from uncertain habitat
improvement actions with uncertain benefits, without allowing
any “cushion” in case all of the actions or their
expected benefits were not realized during the BiOp period;
and (6) did not adequately consider the effects of climate
change. Id. at 898-923. The Court also concluded
that the Corps and the Bureau of Reclamation
(“BOR”) violated NEPA by failing to prepare a
single (or comprehensive) environmental impact statement
(“EIS”). The Court sought further briefing on the
appropriate timing for NEPA compliance and ultimately ordered
a five-year schedule, as requested by the Federal Defendants.
Federal Rule of Civil Procedure 60(b)
argue that Plaintiffs' and Oregon's motions must be
denied because they fail to meet the requirements of Federal
Rule of Civil Procedure Rule 60(b). Plaintiffs and Oregon
dispute that Rule 60(b) even applies. The Court need not
determine whether Rule 60(b) applies because even if it does,
the Court would allow Plaintiffs and Oregon to proceed with
their motions under Rule 60(b)(6).
2016 Opinion, the Court invited supplemental briefing on
“proposed timing for a reasonable NEPA process and
other arguments regarding the scope of appropriate injunctive
relief relating to NEPA.” NMFS V, 184
F.Supp.3d at 948. Although the Court was aware that in the
past there had been allegations that the Federal Defendants
had not complied with agreed-upon spill, no issue related to
spill was before the Court, and to the Court's knowledge
no such problems had occurred in recent years. Thus, the