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On June 18, 2015, the United States District Court for the Eastern District of California issued an order in Ctr. for Envtl. Sci., Accuracy & Reliability v. Cowin, 2015 U.S. Dist. LEXIS 79442 (E.D. Cal. June 18, 2015), denying the Center for Environmental Science, Accuracy & Reliability’s (CESAR) request for a preliminary injunction to enjoin the California Department of Water Resources (Department) from constructing a rock barrier in the Sacramento-San Joaquin Delta (Delta).

On June 11, 2015, CESAR filed a complaint against the Department seeking declaratory and injunctive relief (and other relief against other parties) to prevent construction of the Emergency Drought Salinity Barrier at West False River.  The rock barrier is a temporary drought solution intended to prevent the intrusion of seawater into the central Delta where freshwater is used for domestic, municipal, and agricultural uses.  After filing its complaint, CESAR immediately moved for a temporary restraining order and preliminary injunction, alleging that the Department’s construction of the rock barrier violated the Endangered Species Act, 16 U.S.C. § 1531 et seq. (ESA).  Specifically, CESAR claimed the Department’s construction of the rock barrier caused unpermitted take of delta smelt in violation of Section 9 of the ESA.  See 16 U.S.C. § 1538(a).
Observing that CESAR had been denied interim relief against rock barrier construction in a state-law based lawsuit by the Sacramento County Superior Court, the district court held that CESAR’s federal motion for a temporary restraining order and preliminary injunction failed on three grounds.  First, the court found that CESAR failed to demonstrate compliance with the ESA’s requirement for 60-day notice prior to filing citizen suits.  Second, finding that the Department had already completed the rock barrier, the court found CESAR’s motion to be moot.  Third, the court addressed the parties’ arguments on the preliminary injunction.  In order to obtain an injunction for a violation of the ESA’s take prohibition in the Ninth Circuit, a plaintiff must show, among other things, a reasonably certain threat of imminent take to a listed species.  Under the circumstances existing by the time of its decision, the court construed CESAR’s motion as a request for a mandatory injunction requiring the Department to take affirmative action to remove the rock barrier, and explained that only when the facts and law clearly favor the moving party should the court issue a mandatory preliminary injunction.  The court held CESAR failed to show a reasonably certain threat of imminent harm sufficient to satisfy the irreparable harm requirement for a preliminary injunction.  In the context of the ESA, the court found that irreparable harm sufficient for the issuance of a mandatory injunction could only be shown where the loss of individual members of the species is significant to the species as a whole; it is not sufficient to merely show some incidental take.  For all these reasons, the district court denied CESAR’s motion for a preliminary injunction to prevent the Department from constructing, and requiring it to remove, the temporary rock barrier in the Delta.

For more information about this case please contact Jason Canger at jcanger@somachlaw.com.

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