Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv.

NATIONAL WILDLIFE FEDERATION, et al., Plaintiffs, v. NATIONAL MARINE FISHERIES SERVICE, et al., Defendants.

Case No. 3:01-cv-0640-SI

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

April 3, 2017

AMENDED OPINION AND ORDER¹

Todd D. True and Stephen D. Mashuda, EARTHJUSTICE, 705 Second Avenue, Suite 203, Seattle, WA 98104; Daniel J. Rohlf, EARTHRISE LAW CENTER, Lewis & Clark Law School, 10015 S.W. Terwilliger Boulevard, MSC 51, Portland, OR 97219. Of Attorneys for Plaintiffs.

Ellen F. Rosenblum, Attorney General, and Nina R. Englander and Sarah Weston, Assistant Attorneys General, OREGON DEPARTMENT OF JUSTICE, 1515 S.W. Fifth Avenue, Suite 410, Portland, OR 97201. Of Attorneys for Intervenor-Plaintiff State of Oregon.

David J. Cummings and Geoffrey M. Whiting, NEZ PERCE TRIBE, OFFICE OF LEGAL COUNSEL, P.O. Box 305, Lapwai, ID 83540. Of 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 OFFICE, 1000 S.W. Third Avenue, Portland, OR 97204; 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 SECTION, 999 18th Street, South Terrace, Suite 370, Denver, CO 80202; Romney S. Philpott, Trial Attorney, UNITED STATES DEPARTMENT OF JUSTICE, ENVIRONMENT & NATURAL RESOURCES DIVISION, NATURAL RESOURCES SECTION, 601 D Street NW, Washington, DC 20004. 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, P.O. Box 83720, Boise, ID 83720. 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, 215 North Sanders Street, P.O. Box 201401, Helena, MT 59620; 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, P.O. Box 40100, Olympia, WA 98504. Of Attorneys for Intervenor-Defendant State of Washington.

Julie A. Weis, HAGLUND KELLEY LLP, 200 S.W. Market Street, Suite 1777, Portland, OR 97201; William K. Barquin, TRIBAL LEGAL DEPARTMENT, KOOTENAI TRIBE OF IDAHO, Portland Office, 1000 S.W. Broadway, Suite 1060, Portland, OR 97205. 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, 1211 S.W. Fifth Avenue, Suite 1900, Portland, OR 97204. Of Attorneys for Intervenor-Defendant Inland Ports and Navigation Group.

Beth S. Ginsberg and Jason T. Morgan, STOEL RIVES LLP, 600 University Street, Suite 3600, Seattle, WA 98101. Of Attorneys for Intervenor-Defendant Northwest RiverPartners.

James L. Buchal, MURPHY & BUCHAL LLP, 3425 S.E. Yamhill Street, Suite 100, Portland, OR 97214. Of Attorneys for Intervenor-Defendant Columbia Snake River Irrigators Association.

John W. Ogan, KARNOPP PETERSEN LLP, 1201 N.W. Wall Street, Suite 200, Bend, OR 97701. 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, 46411 Timíne Way, Pendleton, OR 97801. Of Attorneys for Amicus Curiae Confederated Tribes of the Umatilla Indian Reservation.

Patrick D. Spurgin, 411 North Second Street, Yakima, WA 98901. Of Attorneys for Amicus Curiae Yakama Nation.

Brian C. Gruber and Beth Baldwin, ZIONTZ CHESTNUT, 2101 Fourth Avenue, Suite 1230, Seattle, WA 98121. Of Attorneys for Amicus Curiae Confederated Tribes of the Colville Reservation.

James Waddell, P.E., 289 Ocean Cove Lane, Port Angeles, WA 98363. Amicus Curiae, pro se.

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 theCourt. Oregon and the Nez Perce Tribe also support this motion. For the following reasons, both motions are granted in part and denied in part.

STANDARDS

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 ("amici") 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, L.L.C., 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.²

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 howCongress 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

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