Endangered Species Law & Policy

On April 2, 2018, the U.S. Court of Appeals for the Ninth Circuit affirmed (pdf) a district court order directing that the National Marine Fisheries Service (NMFS), U.S. Army Corps of Engineers (Corps) and U.S. Bureau of Reclamation (Bureau) (collectively, the Federal Agencies) conduct spill operations and fish monitoring at dams and related facilities in the Federal Columbia River Power System (FCRPS).  The appeal was the latest development in a long-running dispute regarding salmon and steelhead species listed under the Endangered Species Act (ESA) that are impacted by FCRPS dams.

Thirteen species and/or populations of Columbia River or Snake River salmonids listed as either endangered or threatened under the ESA migrate up and down the Columbia and Snake Rivers every year, encountering FCRPS dams.  The court explained that turbines from these dams result in a high mortality rate for the salmonid species that pass by or near them.  As a means of reducing the potential turbine mortality, each dam in the migration corridor of the Columbia and Snake rivers has a bypass system to allow the salmonid species to avoid the turbines.

This lawsuit is based on the most recent (2014) biological opinion (BiOp) for the FCRPS, which affirmed the conclusion that operation of the FCRPS would jeopardize ESA-listed species and adversely modify critical habitat for listed salmonid species.  The 2014 BiOp proposed an alternative that included, among other items: (i) modifications to systems operations and structures at the dams to improve fish passage and migration conditions, and (ii) allowing some spill from the FCRPS dams to enhance the likelihood of survival for migrating juvenile salmonids.  The National Wildlife Federation and State of Oregon (Plaintiffs) challenged the 2014 BiOp, alleging that it violated the ESA.  The U.S. District Court for the District of Oregon agreed, holding that NMFS violated the ESA by determining that the alternative proposed in the 2014 BiOp would not jeopardize ESA-listed salmonid species.  In response, the Federal Agencies began preparing a new BiOp for FCRPS operations.  While the Federal Agencies worked on the new BiOp, Plaintiffs sought injunctive relief for the ESA violations, requesting implementation of increased spring spill and operation of juvenile bypass facilities and tag detection systems at FCRPS dams.  The district court granted the Plaintiffs’ request, in part, requiring the Federal Agencies to increase the amount of spring spill water released from the FCRPS operations to mitigate impacts to the ESA-listed salmonid species.  The Federal Agencies appealed the injunction.

The Ninth Circuit found that the district court properly exercised its discretion in granting the injunction.  Specifically, the Ninth Circuit noted that the ESA strips courts of some of their equitable discretion when determining whether injunctive relief is warranted.  Specifically, the ESA removes three factors from the traditional four-factor injunctive relief test: (1) that remedies available at law are inadequate to compensate for the injury, (2) that the balance of hardships warrants injunctive relief; and (3) that the public interest favors an injunction.  The ESA does not, however, remove the requirement that plaintiffs demonstrate irreparable injury.  Rather, plaintiffs must still demonstrate that an irreparable injury is likely in the absence of an injunction where an ESA violation is at issue.

The Ninth Circuit concluded that the district court conducted a proper irreparable harm analysis and did not err when it found irreparable harm without finding an extinction-level threat to the species during the remand period.  Rather, a lesser magnitude of harm was sufficient where Plaintiffs demonstrated a definitive threat of future harm to the protected species.  Additionally, the Ninth Circuit affirmed the district court’s finding that harm would result from operation of the FCRPS dams as a whole, because effects on listed species from the current spill regime could not be cleanly separated from operations taken as a whole.    Specifically, the Ninth Circuit also found that the evidence supported the district court’s conclusion that the salmonids were in a precarious state and would remain there without conservation efforts beyond those in the 2014 BiOp.  Plaintiffs also adequately demonstrated that the harm to salmonids while the Federal Agencies revised the BiOp would harm their own interests, including recreational and aesthetic pursuits.