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National Wildlife Federation v. National Marine Fisheries Service

United States Court of Appeals, Ninth Circuit

April 2, 2018

NATIONAL WILDLIFE FEDERATION; IDAHO WILDLIFE FEDERATION; WASHINGTON WILDLIFE FEDERATION; SIERRA CLUB; PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS, INC.; INSTITUTE FOR FISHERIES RESOURCES; IDAHO RIVERS UNITED; IDAHO STEELHEAD AND SALMON UNITED; NORTHWEST SPORT FISHING INDUSTRY ASSOCIATION; SALMON FOR ALL; COLUMBIA RIVERKEEPER; NW ENERGY COALITION; FEDERATION OF FLY FISHERS; AMERICAN RIVERS, INC., Plaintiffs-Appellees,
v.
NATIONAL MARINE FISHERIES SERVICE; U.S. ARMY CORP OF ENGINEERS; UNITED STATES BUREAU OF RECLAMATION, Defendants-Appellants, STATE OF OREGON, Intervenor-Plaintiff-Appellee, and STATE OF WASHINGTON; STATE OF MONTANA; STATE OF IDAHO; KOOTENAI TRIBE OF IDAHO; CONFEDERATED SALISH AND KOOTENAI TRIBES; INLAND PORTS AND NAVIGATION GROUP; NORTHWEST RIVER PARTNERS; NORTHWEST IRRIGATION UTILITIES; PUBLIC POWER COUNCIL; COLUMBIA-SNAKE RIVER IRRIGATORS ASSOCIATION, Intervenor-Defendants. NATIONAL WILDLIFE FEDERATION; IDAHO WILDLIFE FEDERATION; WASHINGTON WILDLIFE FEDERATION; SIERRA CLUB; PACIFIC COAST FEDERATION OF FISHERMEN’S ASSOCIATIONS, INC.; INSTITUTE FOR FISHERIES RESOURCES; IDAHO RIVERS UNITED; IDAHO STEELHEAD AND SALMON UNITED; NORTHWEST SPORT FISHING INDUSTRY ASSOCIATION; SALMON FOR ALL; COLUMBIA RIVERKEEPER; NW ENERGY COALITION; FEDERATION OF FLY FISHERS; AMERICAN RIVERS, INC., Plaintiffs-Appellees, STATE OF OREGON, Intervenor-Plaintiff- Appellee,
v.
NATIONAL MARINE FISHERIES SERVICE; U.S. ARMY CORP OF ENGINEERS; UNITED STATES BUREAU OF RECLAMATION, Defendants, STATE OF WASHINGTON; STATE OF MONTANA; STATE OF IDAHO; KOOTENAI TRIBE OF IDAHO; CONFEDERATED SALISH AND KOOTENAI TRIBES; INLAND PORTS AND NAVIGATION GROUP; NORTHWEST IRRIGATION UTILITIES; PUBLIC POWER COUNCIL; COLUMBIA-SNAKE RIVER IRRIGATORS ASSOCIATION, Intervenor-Defendants, and NORTHWEST RIVER PARTNERS, Intervenor-Defendant- Appellant. NATIONAL WILDLIFE FEDERATION; IDAHO WILDLIFE FEDERATION; WASHINGTON WILDLIFE FEDERATION; SIERRA CLUB; PACIFIC COAST FEDERATION OF FISHERMEN’S ASSOCIATIONS, INC.; INSTITUTE FOR FISHERIES RESOURCES; IDAHO RIVERS UNITED; IDAHO STEELHEAD AND SALMON UNITED; NORTHWEST SPORT FISHING INDUSTRY ASSOCIATION; SALMON FOR ALL; COLUMBIA RIVERKEEPER; NW ENERGY COALITION; FEDERATION OF FLY FISHERS; AMERICAN RIVERS, INC., Plaintiffs-Appellees, STATE OF OREGON, Intervenor-Plaintiff- Appellee,
v.
NATIONAL MARINE FISHERIES SERVICE; U.S. ARMY CORP OF ENGINEERS; UNITED STATES BUREAU OF RECLAMATION, Defendants, STATE OF WASHINGTON; STATE OF MONTANA; KOOTENAI TRIBE OF IDAHO; CONFEDERATED SALISH AND KOOTENAI TRIBES; INLAND PORTS AND NAVIGATION GROUP; NORTHWEST RIVER PARTNERS; NORTHWEST IRRIGATION UTILITIES; PUBLIC POWER COUNCIL; COLUMBIA-SNAKE RIVER IRRIGATORS ASSOCIATION, Intervenor-Defendants, and STATE OF IDAHO, Intervenor-Defendant- Appellant. STATE OF OREGON, Intervenor-Plaintiff- Appellee,
v.
NATIONAL MARINE FISHERIES SERVICE; U.S. ARMY CORP OF ENGINEERS; UNITED STATES BUREAU OF RECLAMATION, Defendants, STATE OF WASHINGTON; STATE OF MONTANA; STATE OF IDAHO; KOOTENAI TRIBE OF IDAHO; CONFEDERATED SALISH AND KOOTENAI TRIBES; NORTHWEST RIVER PARTNERS; NORTHWEST IRRIGATION UTILITIES; PUBLIC POWER COUNCIL; COLUMBIASNAKE RIVER IRRIGATORS ASSOCIATION, Intervenor-Defendants, and INLAND PORTS AND NAVIGATION GROUP, Intervenor-Defendant- Appellant. NATIONAL WILDLIFE FEDERATION; IDAHO WILDLIFE FEDERATION; WASHINGTON WILDLIFE FEDERATION; SIERRA CLUB; PACIFIC COAST FEDERATION OF FISHERMEN’S ASSOCIATIONS, INC.; INSTITUTE FOR FISHERIES RESOURCES; IDAHO RIVERS UNITED; IDAHO STEELHEAD AND SALMON UNITED; NORTHWEST SPORT FISHING INDUSTRY ASSOCIATION; SALMON FOR ALL; COLUMBIA RIVERKEEPER; NW ENERGY COALITION; FEDERATION OF FLY FISHERS; AMERICAN RIVERS, INC., Plaintiffs-Appellees, STATE OF OREGON, Intervenor-Plaintiff- Appellee,
v.
NATIONAL MARINE FISHERIES SERVICE; U.S. ARMY CORP OF ENGINEERS; UNITED STATES BUREAU OF RECLAMATION, Defendants, STATE OF WASHINGTON; STATE OF IDAHO; KOOTENAI TRIBE OF IDAHO; CONFEDERATED SALISH AND KOOTENAI TRIBES; INLAND PORTS AND NAVIGATION GROUP; NORTHWEST RIVER PARTNERS; NORTHWEST IRRIGATION UTILITIES; PUBLIC POWER COUNCIL; COLUMBIA-SNAKE RIVER IRRIGATORS ASSOCIATION, Intervenor-Defendants, and STATE OF MONTANA, Intervenor-Defendant- Appellant. NATIONAL WILDLIFE FEDERATION; IDAHO WILDLIFE FEDERATION; WASHINGTON WILDLIFE FEDERATION; SIERRA CLUB; PACIFIC COAST FEDERATION OF FISHERMEN’S ASSOCIATIONS, INC.; INSTITUTE FOR FISHERIES RESOURCES; IDAHO RIVERS UNITED; IDAHO STEELHEAD AND SALMON UNITED; NORTHWEST SPORT FISHING INDUSTRY ASSOCIATION; SALMON FOR ALL; COLUMBIA RIVERKEEPER; NW ENERGY COALITION; FEDERATION OF FLY FISHERS; AMERICAN RIVERS, INC., Plaintiffs-Appellees, STATE OF OREGON, Intervenor-Plaintiff- Appellee,
v.
NATIONAL MARINE FISHERIES SERVICE; U.S. ARMY CORP OF ENGINEERS; UNITED STATES BUREAU OF RECLAMATION, Defendants, STATE OF WASHINGTON; STATE OF MONTANA; STATE OF IDAHO; INLAND PORTS AND NAVIGATION GROUP; NORTHWEST RIVER PARTNERS; NORTHWEST IRRIGATION UTILITIES; PUBLIC POWER COUNCIL; COLUMBIASNAKE RIVER IRRIGATORS ASSOCIATION, Intervenor-Defendants, and KOOTENAI TRIBE OF IDAHO; CONFEDERATED SALISH AND KOOTENAI TRIBES, Intervenor-Defendants- Appellants. NATIONAL WILDLIFE FEDERATION; IDAHO WILDLIFE FEDERATION; WASHINGTON WILDLIFE FEDERATION; SIERRA CLUB; PACIFIC COAST FEDERATION OF FISHERMEN’S ASSOCIATIONS, INC.; INSTITUTE FOR FISHERIES RESOURCES; IDAHO RIVERS UNITED; IDAHO STEELHEAD AND SALMON UNITED; NORTHWEST SPORT FISHING INDUSTRY ASSOCIATION; SALMON FOR ALL; COLUMBIA RIVERKEEPER; NW ENERGY COALITION; FEDERATION OF FLY FISHERS; AMERICAN RIVERS, INC., Plaintiffs-Appellees, STATE OF OREGON, Intervenor-Plaintiff- Appellee,
v.
NATIONAL MARINE FISHERIES SERVICE; U.S. ARMY CORP OF ENGINEERS; UNITED STATES BUREAU OF RECLAMATION, Defendants-Appellants, and STATE OF WASHINGTON; STATE OF MONTANA; STATE OF IDAHO; INLAND PORTS AND NAVIGATION GROUP; NORTHWEST RIVER PARTNERS; NORTHWEST IRRIGATION UTILITIES; PUBLIC POWER COUNCIL; COLUMBIASNAKE RIVER IRRIGATORS ASSOCIATION; KOOTENAI TRIBE OF IDAHO; CONFEDERATED SALISH AND KOOTENAI TRIBES, Intervenor-Defendants. NATIONAL WILDLIFE FEDERATION; IDAHO WILDLIFE FEDERATION; WASHINGTON WILDLIFE FEDERATION; SIERRA CLUB; PACIFIC COAST FEDERATION OF FISHERMEN’S ASSOCIATIONS, INC.; INSTITUTE FOR FISHERIES RESOURCES; IDAHO RIVERS UNITED; IDAHO STEELHEAD AND SALMON UNITED; NORTHWEST SPORT FISHING INDUSTRY ASSOCIATION; SALMON FOR ALL; COLUMBIA RIVERKEEPER; NW ENERGY COALITION; FEDERATION OF FLY FISHERS; AMERICAN RIVERS, INC., Plaintiffs-Appellees, STATE OF OREGON, Intervenor-Plaintiff- Appellee,
v.
NATIONAL MARINE FISHERIES SERVICE; U.S. ARMY CORP OF ENGINEERS; UNITED STATES BUREAU OF RECLAMATION, Defendants, STATE OF WASHINGTON; STATE OF MONTANA; STATE OF IDAHO; INLAND PORTS AND NAVIGATION GROUP; NORTHWEST IRRIGATION UTILITIES; PUBLIC POWER COUNCIL; COLUMBIA-SNAKE RIVER IRRIGATORS ASSOCIATION; KOOTENAI TRIBE OF IDAHO; CONFEDERATED SALISH AND KOOTENAI TRIBES, Intervenor-Defendants, and NORTHWEST RIVER PARTNERS, Intervenor-Defendant- Appellant.

          Argued and Submitted March 20, 2018 San Francisco, California

          Appeals from the United States District Court for the District of Oregon D.C. No. 3:01-cv-00640-SI, Michael H. Simon, District Judge, Presiding

          BEFORE: THOMAS, Chief Judge, and TASHIMA and PAEZ, Circuit Judges.

          OPINION

          SIDNEY R. THOMAS, CHIEF JUDGE:

         These consolidated appeals are the latest round of a long-running dispute over salmon and steelhead species listed under the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544. Three federal agencies (collectively, "federal defendants"), joined by intervenor-defendants, challenge injunctions issued by the district court to protect the listed species. At the request of the National Wildlife Federation and the State of Oregon (collectively, "plaintiffs"), the district court ordered the agencies to conduct certain spill operations and fish monitoring operations at dams and related facilities in the Federal Columbia River Power System ("FCRPS"). The district court also directed the agencies to disclose to plaintiffs information on planned projects at certain dams in order to ensure that major expenditures do not bias the preparation of an environmental impact statement ("EIS") under the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4347. We affirm the district court's grant of the spill and fish monitoring injunctions, and we dismiss the appeal of the NEPA disclosure order.

          I

         The Columbia River is the fourth largest river on the North American continent. It flows for more than 1,200 miles from the Canadian Rockies to the Pacific Ocean, and it drains an area of approximately 258,000 square miles, including territory in seven states and one Canadian province. The Snake River is the largest tributary of the Columbia River. It flows for more than 1,000 miles from Yellowstone National Park until it meets the Columbia River in Washington, and it drains an area of approximately 108,000 square miles, including territory in six states.

         Every year, salmon and steelhead (collectively, "salmonids") travel up and down the Columbia and Snake Rivers, hatching in fresh water, migrating downstream to the Pacific Ocean on their way to adulthood, and later returning upstream to spawn and die. The wild salmonid population has decreased significantly in recent years. Today, there are thirteen species or populations of Columbia River or Snake River salmonids that are listed as either endangered or threatened under the ESA.

         When these fish migrate downstream to the Pacific Ocean, they face danger from dams in the FCRPS. The dams contain turbines that produce power from the flow of water. As the fish pass through the dams on their journey to the ocean, a high number die from swimming through the turbines. In light of this danger, each dam in the migration corridor of the mainstem Columbia and Snake Rivers has a bypass system to allow fish to avoid the turbines. At some dams, the bypass systems consist of screens in front of the turbine intakes that divert the fish into passageways through the dams and downstream. At others, the bypass systems divert the fish into barges for transportation around the dams.

         The FCRPS includes eight multipurpose dams, reservoirs, and related facilities on the mainstem Columbia and Snake Rivers in Montana, Washington, Idaho, and Oregon. Three federal agencies coordinate to manage FCRPS dams: the U.S. Army Corps of Engineers (the "Corps"), the U.S. Bureau of Reclamation ("Reclamation"), and the Bonneville Power Administration ("Bonneville"). The Corps operates the eight mainstem dams, Reclamation operates other FCRPS dams, and Bonneville markets and transmits power generated from the hydroelectric projects. States also play a role in dam management through the governance of water diversions from the rivers and through state conservation programs. A number of federally-recognized Indian Tribes retain treaty fishing rights in the waters of the Columbia and Snake Rivers.

         This litigation, which has been ongoing since 2001, primarily concerns application of the ESA to the management of the FCRPS. Section 7 of the ESA requires federal agencies, in consultation with what is known as the "consulting agency," to conserve species listed under the ESA. Section 7(a)(2) of the ESA requires each federal agency to "insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification" of a listed species' designated critical habitat. 16 U.S.C. § 1536(a)(2). Section 7 and its implementing regulations delineate the consultation process for determining the biological impacts of a proposed action. 16 U.S.C. § 1536(a)-(c); 50 C.F.R. § 402. In brief, if a proposed federal action may jeopardize listed species or adversely modify critical habitat, the "acting agency" must consult with the "consulting agency." 50 C.F.R. §§ 402.13, 402.14. Here, the acting agencies are the Corps and Reclamation, and the consulting agency is the National Marine Fisheries Service ("NMFS").

         The consulting agency prepares a biological opinion ("BiOp") setting forth its conclusions about whether the proposed action will affect a listed species or its designated critical habitat. 16 U.S.C. § 1536(b)(3)(A). An action jeopardizes a listed species if it "reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species." 50 C.F.R. § 402.02. If the proposed action is likely to jeopardize a listed species' existence or adversely modify its critical habitat, the BiOp must set forth a reasonable and prudent alternative to the action (the "Alternative") that is not likely to jeopardize the species or adversely modify its habitat, if possible. 16 U.S.C. § 1536(b)(3)(A).

         If the BiOp concludes that jeopardy is not likely and that there will not be adverse modification of critical habitat, or that the Alternative avoids jeopardy and adverse modification and that the incidental taking of endangered or threatened species will not violate section 7(a)(2), the consulting agency can issue an "Incidental Take Statement." If followed, the Incidental Take Statement exempts the action agency from the prohibition on takings found in section 9 of the ESA. 16 U.S.C. § 1536(b)(4); Aluminum Co. of Am. v. Adm'r, Bonneville Power Admin., 175 F.3d 1156, 1159 (9th Cir. 1999).

         The instant litigation also involves application of NEPA to the management of the FCRPS. NEPA requires that federal agencies complete an EIS in connection with "every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C).

          In addition to evaluating the proposed agency action, an EIS must "[r]igorously explore and objectively evaluate all reasonable alternatives" to that action. 40 C.F.R. § 1502.14(a). "NEPA's purpose is twofold: (1) to ensure that agencies carefully consider information about significant environmental impacts and (2) to guarantee relevant information is available to the public." N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1072 (9th Cir. 2011).

         NMFS issued a BiOp in 2000 which concluded that operation of the FCRPS dams jeopardized listed species but that a proposed Alternative would avoid jeopardy. The National Wildlife Federation ("NWF") challenged the 2000 BiOp, initiating this litigation. The district court ruled that the BiOp was arbitrary and capricious and remanded to NMFS to issue a new BiOp. Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv. ("NWF I"), 254 F.Supp.2d 1196 (D. Or. 2003).

         NMFS issued a new BiOp in 2004, which concluded that operation of the FCRPS dams would not jeopardize listed species. NWF filed a second supplemental complaint challenging the 2004 BiOp, and it moved for a preliminary injunction. The district court granted the preliminary injunction. The injunction required the acting agencies to increase the amount of water that passed through spillgates on certain FCRPS dams during the summer of 2005, rather than passing the water through turbines for power generation. The increased spill was intended to decrease the mortality rate of fish passing through the dams. On appeal, we held that the district court had not abused its discretion in granting the injunction, but we remanded to the district court to determine whether the injunction should be more narrowly tailored. Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv. ("NWF II"), 422 F.3d 782 (9th Cir. 2005). The district court eventually rejected the 2004 BiOp and remanded to NMFS to issue a new BiOp. We affirmed the district court's rejection of the 2004 BiOp. Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv. ("NWF III"), 524 F.3d 917 (9th Cir. 2008).

         NMFS issued a new BiOp in 2008. As a result of additional administrative review, NMFS issued a supplemental BiOp in 2010. Those BiOps again concluded that operation of the FCRPS dams jeopardized listed species, but that a proposed Alternative would avoid jeopardy. In 2011, the district court rejected the 2008/2010 BiOp. Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv. ("NWF IV"), 839 F.Supp.2d 1117 (D. Or. 2011). The district court ordered NMFS to issue a new BiOp by 2014. In the interim, the court ordered the acting agencies to implement the 2008/2010 BiOp's Alternative and ordered increased spill to mitigate irreparable harm from dam operations.

         NMFS issued its latest BiOp in 2014. The 2014 BiOp was a supplement to the 2008 BiOp. The 2014 BiOp again concluded that operation of the FCRPS dams would jeopardize listed species and adversely modify critical habitat. It again proposed an Alternative, consisting of a suite of 74 actions that cover a ten-year period (from 2008 to 2018). The Alternative included modifications to system operations and structures at the dams to improve fish passage and migration conditions; actions to reduce salmonid predation; actions to restore salmonid habitat; hatchery management; and research, monitoring, and evaluation of salmonids. The Alternative includes some spill in order to enhance the survival of migrating juvenile salmonids. The 2014 BiOp concluded that the Alternative would avoid jeopardy and adverse modification of critical habitat.

         Plaintiffs NWF and the State of Oregon filed supplemental complaints challenging the 2014 BiOp for violations of the ESA and arguing that the Corps and Reclamation had violated NEPA. In May 2016, the district court granted partial summary judgment to plaintiffs. Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv. ("NWF V"), 184 F.Supp.3d 861 (D. Or. 2016). The district court concluded that NMFS violated the ESA and the Administrative Procedure Act ("APA") in determining in the 2014 BiOp that the Alternative did not jeopardize listed species. It also concluded that the Corps and Reclamation violated NEPA by not preparing a proper EIS under NEPA.

          However, the court concluded that NMFS did not violate the ESA or APA in determining that the Alternative does not adversely modify critical habitat and will not adversely affect Southern Resident Killer Whales. The court remanded to NMFS to issue a new BiOp by March 1, 2018. It stated that it retained jurisdiction over the litigation to ensure that the agencies develop mitigation measures to avoid jeopardy, issue a compliant BiOp, and prepare a compliant EIS. Federal defendants and intervenor-defendants initially appealed this order, but they have since dismissed those appeals.

         In July 2016, the district court entered a new remand order (the "July 2016 order"). That order approved a proposed five-year schedule for preparation of a proper EIS under NEPA. The order also extended the deadline for issuing a new BiOp to December 31, 2018. Finally, the order directed federal defendants to keep the 2014 BiOp in place and to continue to implement its Alternative until the new BiOp is issued.

         In January 2017, plaintiffs filed motions requesting injunctive relief for the ESA violations identified by the district court in NWF V. First, plaintiffs sought an injunction ordering the Corps to increase spill to the maximum level that meets, but does not exceed, existing total dissolved gas criteria allowed under state law (the "gas cap") from April to June at the eight mainstem FCRPS dams. The requested spill would commence in April 2017 and continue for the remainder of the BiOp remand period. The proposed injunction contained off-ramps to allow the Corps to reduce spill for reasons such as power emergencies, health and safety, or other issues.

         Oregon also sought an injunction ordering federal defendants to operate juvenile bypass facilities and associated Passive Integrated Transponder ("PIT") tag detection systems at FCRPS dams beginning in March 2017. NWF sought an injunction under NEPA that would prohibit the Corps from making significant capital expenditures at certain FCRPS dams during the NEPA remand period absent court approval. Such expenditures, NWF argued, would bias the ongoing EIS process.

         In April 2017, the district court entered an amended order granting in part and denying in part plaintiffs' injunction motions (the "April 2017 order"). The district court first considered whether plaintiffs' motions were barred by Federal Rule of Procedure 60(b). The court held that, even if Rule 60(b) applied to plaintiffs' motions, it could grant the requested relief under Rule 60(b)(6).

         The district court granted the motions for injunctive relief under the ESA. The court held that there is no presumption of irreparable injury where there has been an ESA violation, but that the court was stripped of discretion to weigh other traditional equitable factors. The district court held that plaintiffs did not need to show that operating without the requested court-ordered spill during the two-year remand period would pose an imminent threat at the species level, nor that the Alternative's spill-related operations specifically are causing irreparable harm. Considering the evidence in the record-including findings from previous opinions and orders issued as part of this litigation-the court found irreparable harm sufficient to order increased spring spill. The court decided that implementing increased spill in spring 2017 was too rushed, and it delayed the new spill operations until April 3, 2018. It ordered the federal defendants, in collaboration with the parties and regional experts, to produce a spill plan and proposed injunction order.

         The district court also granted plaintiffs' PIT tag monitoring injunction, but it delayed implementation until March 1, 2018. Finally, the district court considered plaintiffs' NEPA capital expenditure injunction request. The court found that significant expenditures on FCRPS dams during the NEPA remand period were likely to cause irreparable harm by creating a substantial risk of bias in the NEPA process. The district court nevertheless denied plaintiffs' injunction motion, because it found that the balance of hardships and considerations of public interest favored allowing some expenditures. However, the court directed the Corps and Reclamation to disclose information to plaintiffs regarding ...


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