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National Wildlife Federation v. National Marine Fisheries Service

United States District Court, D. Oregon

March 27, 2017


          Todd D. True and Stephen D. Mashuda, Earthjustice, Daniel J. Rohlf, Earthrise Law Center, Lewis & Clark Law School, Of Attorneys for Plaintiffs.

          Ellen 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 Oregon.

          David J. Cummings and Geoffrey M. Whiting, Nez Perce Tribe, Office of Legal Counsel, P.O. Attorneys for Amicus Curiae Nez Perce Tribe.

          Billy 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.

          Julie 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.

          Stuart 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.

          Jay T. 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.

          Beth S. Ginsberg and Jason T. Morgan, Stoel Rives LLP, Of Attorneys for Intervenor-Defendant Northwest RiverPartners.

          James L. Buchal, Murphy & Buchal LLP, S.E. Yamhill Street, Of Attorneys for Intervenor-Defendant Columbia Snake River Irrigators Association.

          John W. Ogan, Karnopp Petersen LLP, Of Attorneys for Amicus Curiae Confederated Tribes of the Warm Springs Reservation of Oregon.

          Brent 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.

          Brian C. Gruber and Beth Baldwin, Ziontz Chestnut, Of Attorneys for Amicus Curiae Confederated Tribes of the Colville Reservation.

          James Waddell, P.E., Amicus Curiae, pro se.


          Michael H. Simon United States District Judge

         Michael H. Simon, District Judge.

         Intervenor-Plaintiff 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.

         Plaintiffs 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.


         A. Permanent or Preliminary Injunction

         Plaintiffs 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 standards.

         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 Svc., 789 F.3d 1075, 1088 (9th Cir. 2015) (quoting eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006)).

         When 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 actual success.”).

         Injunctions, 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.[1]

         B. Injunction Under the ESA

         When 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.” Id.

         If a 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).

         C. Injunction Under NEPA

         In 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).


         This case has a long history.[2] 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[3] 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.

         As 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.


         A. Federal Rule of Civil Procedure 60(b)

         Defendants 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).

         In the 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 Court ...

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