This month, the Ninth Circuit Court of Appeals issued two rulings regarding injunctive relief in cases brought to enforce the Endangered Species Act (ESA).

On April 2, 2018, in National Wildlife Federation v. National Marine Fisheries Service (National Wildlife Federation), No. 17-35462, the Ninth Circuit Court affirmed injunctive relief granted by the United States District Court for the District of Oregon following an Amended Order issued in 2017 partially granting and partially denying Plaintiffs’ requested relief regarding ESA listed salmon and steelhead.[1]  On Aril 5, 2018, in Defenders of Wildlife v. United States Army Corps of Engineers (Defenders of Wildlife), No. 17-35712, the Ninth Circuit reversed the U.S. District of Montana Court’s grant of preliminary injunction regarding projects affecting the listed pallid sturgeon.  

At first blush, these two decisions present seemingly contrasting approaches to ESA injunctive relief.  However; both decisions rest on fundamental principles that organizations operating—or potentially operating—under the ESA must understand.

National Wildlife Federation

National Wildlife Federation is the most recent decision in nearly two decades of court oversight of the Federal Columbia River Power System (FCRPS), a series of dams and related facilities on the Snake and Columbia Rivers in Montana, Idaho, Oregon, and Washington.[2]  This latest decision stems from injunctive relief requested by the National Wildlife Federation and the State of Oregon, based on the successful challenge to National Marine Fisheries Service’s (NMFS) 2014 Biological Opinion adjudicated in a prior decision known as NWF V.  NWF V had determined that NMFS’s 2014 Biological Opinion for operation of the FRCPS violated the ESA:  in particular, a no-jeopardy determination for listed salmon and steelhead was held to be improper.

 The district court required that, until NMFS issues a new Biological Opinion at the end of 2018, the Bureau of Reclamation (Bureau) and the Army Corps of Engineers (Corps) must increase spill operations at FCRPS facilities to the maximum level that meets dissolved gas criteria under state law.  The federal agencies must also operate juvenile bypass facilities and associated tagging operations at FCRPS dams.

The district court held that the plaintiffs did not, in order to be entitled to the requested relief, need to demonstrate an imminent threat at the species level during the two-year remand period for NMFS to revise the Biological Opinion.  Nor did plaintiffs have to demonstrate that the existing spill-related operations specifically cause irreparable harm to the listed species.  The district court instead relied on voluminous factual findings made in the course of the on-going litigation that demonstrated the precarious position of the listed species and species’ exposure to harm through the operations of the FCRPS.

On appeal, the Federal defendants argued that the district court abused its discretion in granting the requested relief, based on an erroneous finding of irreparable harm and failure to properly tailor the relief to specific causes of irreparable harm.  The federal agencies challenged the finding of irreparable harm based on two grounds:  the district court’s failure to find an extinction level risk to the listed species during the two-year remand period; and the district court’s consideration of overall harm of the FCRPS to the listed species, rather than harms caused by spill operations.  The Ninth Circuit rejected these contentions and affirmed the district court’s ordered relief.

To review the relief ordered by the district court, the Ninth Circuit analyzed the district court’s finding of irreparable harm.  The rise of irreparable harm is the crucial element courts must determine if injunctive relief is appropriate for ESA violations.  The other elements of the traditional injunctive relief test, including the public interest and balancing of equities, ordinarily tip in favor of protecting species.  In National Wildlife Foundation, the Ninth Circuit found that the district court properly found the requisite irreparable harm to both the species and the plaintiffs.

The Ninth Circuit dismissed the federal defendants’ argument that injunctive relief is only available when an extinction level threat is present.  The Ninth Circuit relied on principles that irreparable harm does not equate to extinction level threats under the ESA.  The Ninth Circuit clarified that such injunctive relief may be appropriate for certain procedural violations of Section 7 of the ESA, particularly where there is not a valid Biological Opinion in place that determines acceptable levels of incidental take compliant with what the Ninth Circuit’s interprets as the ESA’s animating principle—conservation of listed species.

The Ninth Circuit also dismissed the argument that the ordered injunctive relief was not properly tailored to the harms found.  The Ninth Circuit rejected the federal defendants’ contention that narrowly tailored injunctive relief match up precisely with the found irreparable harm, requiring only a sufficient causal connection between the irreparable harm found and the requested relief.  Notably, the Ninth Circuit considered the long history of this particular case—including a similar spill injunction in 2005 and consistent findings of the listed species’ precarious nature—in determining that the district court’s finding of irreparable harm was not erroneous.  Additionally, the Ninth Circuit found that even though the federal defendants raised a degree of scientific uncertainty, this uncertainty did not render the district court’s findings clearly erroneous in this case.

Defenders of Wildlife

In Defenders of Wildlife, the Ninth Circuit vacated the District Court of Montana’s ordered preliminary injunctive relief after addressing findings by the district court regarding irreparable harm and plaintiffs’ likelihood of success on the merits.

Defenders of Wildlife involves the proposed construction of a concrete weir on Montana’s Yellowstone River to replace an existing wooden weir and the construction of a fish passage bypass channel that would allow the endangered pallid sturgeon to swim around the weir and reach spawning grounds.  The channel was modeled, in part, on the successful use of a natural side channel by the listed species during high flows in 2014.  This decision marks the second time courts blocked the project—and later allowed the project to move forward based on the sufficiency of federal agency environmental review.  At issue in this latest case was the no-jeopardy determination regarding the project from the federal agencies’ revised NEPA and ESA documents issued at the end of 2016.

The Ninth Circuit found two critical errors regarding the district court’s irreparable harm analysis.  First, the district court improperly considered harm caused by the “continued operation” of existing infrastructure in determining irreparable harm, primarily because plaintiffs did not seek to enjoin such existing operations.  Second, the district court “flipped the burden of proof” when it required the Corps to prove that its proposed project would allow successful fish passage, rather than requiring Defenders of Wildlife to demonstrate irreparable harm from construction of the proposed project.  These two mistakes amounted to abuse of discretion by the district court when it found irreparable harm.

The Ninth Circuit also determined that the district court committed legal error when it found that Defenders of Wildlife was likely to succeed on the merits of its claim.  Specifically, regarding the ESA claim, the district court found that the absence of specific Incidental Take Statement analysis and quantifiable recovery goals were deficiencies that did not support a no-jeopardy determination.  However, the Ninth Circuit found that that while these elements may sometimes be required to support a no-jeopardy determination, they were not required in this instance.  The Corps articulated a reasoned—and reasonable—basis for its no-jeopardy finding because the project would result in a substantial reduction to breeding impairments to the pallid sturgeon.

Still pending before the district court is Defenders of Wildlife’s motion for summary judgment.  It remains to be seen how the District Judge will treat this motion, given the Ninth Circuit’s overturning of the ordered injunctive relief.

Both Cases

These two cases concerning the appropriate standards and principles for injunctive relief provide insight into how the Ninth Circuit approaches continuing litigation under the ESA.  Central in each decision is the animating purpose of the ESA—protection and, if the actor is a federal agency, conservation of listed species.  In both opinions, the Ninth Circuit relied on findings that actions would benefit the listed species.  In National Wildlife Foundation, the benefit favored injunctive relief.  In Defenders of Wildlife, however, the benefit stemmed from the challenged Corps’ project—and deference to a federal agency’s finding of this benefit was appropriate because the record established sufficient evidence that the project would benefit listed species by increasing access to spawning grounds.

Additionally the distinction in the Ninth Circuit’s approach to federal agency determinations in light of sufficient environmental study is worth noting.  Where the consulting federal agency—and the appropriate wildlife agency—have compiled a record designed to further the goals of the ESA, the Ninth Circuit appears willing to afford deference and deny environmentalist challenges.  In Defenders of Wildlife, the agencies initially failed to conduct a full environmental analysis in 2015; however, the agencies issued revised environmental documents at the end of 2016, which the Ninth Circuit found sufficiently documented the basis for a no-jeopardy determination for the proposed project.  This determination was therefore entitled to deference and the district court erred in finding an insufficient basis to support that determination.[3]  However, as National Wildlife Foundation demonstrates, failure to compile environmental documents that meet with court approval, coupled with a lengthy record containing “ample evidence . . . that the FCRPS causes substantial harm to listed salmonids,” will likely result in extended litigation and continuing court oversight to ensure that federal agencies—and by extension, issued federal permits—implement ESA goals.

Working within the bounds of the ESA is a complicated process involving multiple stakeholders.  Together, the decisions reinforce that agencies seeking ESA authorization are served by developing records that demonstrate projects take species conservation seriously.

For additional information please contact Daniel Quinley at dquinley@somachlaw.com.

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only.  This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice.  In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.

[1] Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 2017 U.S. Dist. LEXIS 44026 (D. Or., March 27, 2017).

[2] See:

1. Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv. (NWF I), 254 F. Supp. 2d 1196 (D. Or. 2003).
2. Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv. (NWF II), 422 F.3d. 782 (9th Cir. 2005).
3. Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv. (NWF III), 524 F.3d 917 (9th Cir. 2008).
4. Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv. (NWF IV), 839 F.Supp.2d 1117 (D. Or. 2011).
5. Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv. (NWF V), 184 F.Supp.3d 861 (D. Or. 2016).

[3] The Ninth Circuit found that the technical deficiencies relied on by the district court, while useful in some no-jeopardy determinations, were not required for this particular project.

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