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Defenders of Wildlife v. United States Army Corps of Engineers

United States District Court, D. Montana, Great Falls Division

April 19, 2017

DEFENDERS OF WILDLIFE, and NATURAL RESOURCE DEFENSE COUNCIL Plaintiffs,
v.
UNITED STATES ARMY CORPS OF ENGINEERS; UNITED STATES BUREAU OF RECLAMATION; and UNITED STATES FISH AND WILDLIFE SERVICE, Defendants and LOWER YELLOWSTONE IRRIGATION PROJECT BOARD OF CONTROL, SAVAGE IRRIGATION DISTRICT, and INTAKE IRRIGATION DISTRICT Defendant-Intervenors.

          ORDER REGARDING DEFENDANTS' MOTION FOR PARTIAL DISMISSAL AND TO DISSOLVE THE PRELIMINARY INJUNCTION; PLAINTIFFS' MOTION FOR LEAVE TO FILE A FOURTH SUPPLEMENTAL AND AMENDED COMPLAINT; AND PLAINTIFFS' MOTION FOR LEAVE TO FILE SURREPLY

          BRIAN MORRIS UNITED STATES DISTRICT COURT JUDGE.

         I. Background

         The United States Fish and Wildlife Service (FWS) listed pallid sturgeon as endangered in 1990. 55 Fed. Reg. 36, 641. The Missouri River between the Fort Peck Dam and Lake Sakakawea contains the largest wild pallid sturgeon population. Fewer than 125 wild pallid sturgeons remain and the population appears in decline. (BOR 560; BOR 2216). The presence of the Fork Peck Dam on the Missouri River and the Intake Dam on the Yellowstone River account, in large part, for this decline. (BOR 567-572). The Intake Dam sits approximately 70 miles upriver from the confluence of the Yellowstone River and the Missouri River. These two barriers prevent the pallid sturgeon from swimming far enough upriver to spawn successfully.

         After spawning, the pallid sturgeon larvae drift while they are developing. (BOR 568). The drift ranges from 152 to 329 miles. (BOR 568). Pallid sturgeons suffer very low survival rates in a lake environment, such as Lake Sakakawea, due to low oxygen levels. (BOR 2213). Larvae hatched below the Intake Dam lack sufficient "drift distance" to develop before they reach Lake Sakakawea. They perish as a result. (BOR 2212-13). If pallid sturgeon could spawn upstream of the Intake Dam, the larvae may develop sufficiently before they reached Lake Sakakawea that they would be able to swim to remain in the more hospitable river environment.

         A wood structure topped with rocks along the crest forms the Intake Dam. The existing weir requires nearly annual replacement of rocks on the crest to hold back sufficient water to service irrigation needs. The United States Bureau of Reclamation ("Bureau") and the United States Army Corps of Engineers ("the Corps") intend to spend $59 million to replace the existing wood and rock weir at Intake Dam with a concrete weir in order to ensure continued irrigation water to the 56, 800 acres currently serviced by Intake Dam. (The "Project"). (BOR 2158; Doc. 30 at 3).

         Five pallid sturgeons successfully used a natural side channel around the existing weir in 2014 during unusually high water. (BOR 2212). Federal Defendants decided that a new bypass channel, which would have sufficient flow all the time, provided the best option to allow pallid sturgeon to navigate around the weir. Federal Defendants issued an Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) in 2015. (BOR 2053-2636).

         Plaintiff Defenders of Wildlife ("Defenders") filed the Complaint initiating this action during February of 2015. (Doc. 1.) Defenders ultimately filed a Third Supplemental and Amended Complaint that currently constitutes the operative set of claims in this action. (Doc. 52.) Defenders filed a Motion for Preliminary Injunction on July 28, 2015, to seek an injunction preventing Federal Defendant agencies ("Federal Defendants") from initiating construction on the project and ordering Federal Defendants to complete an Environmental Impact Statement (EIS). (Doc. 53.) The Court conducted a hearing on August 27, 2015. (Doc. 71.)

         The Court granted Defenders' Motion for Preliminary Injunction on September 4, 2016. (Doc. 73.) The Court determined that Defenders' claim warranted a preliminary injunction on the basis that Federal Defendants had failed to complete a full Environmental Impact Statement ("EIS") and the attendant analysis. The Court specifically emphasized the need for Federal Defendants to analyze recovery of pallid sturgeon and whether the project would prevent recovery. The Court also clearly identified the need for Federal Defendants to analyze whether the project would be successful in providing passage past the dam for pallid sturgeon.

         Federal Defendants completed an EIS on October 21, 2016, and issued a Record of Decision ("ROD") on December 2, 2016, in response to the Court's order. (Doc. 101 at 9.) Federal Defendants filed the instant Motion for Partial Dismissal and to Dissolve the Injunction on February 1, 2017. (Doc. 100.) Federal Defendants seek to dismiss Count 6 in Defenders's Third Supplemental and Amended Complaint. (Doc. 101 at 9-13.) Federal Defendants also seek to dissolve the Court's prior injunction. Id. at 13-22. Federal Defendants sought to have the preliminary injunction dissolved by April 15, 2017, in order to begin construction this year and to protect the funding that was set aside for the project. (Doc. 101 at 16.) The Court takes into account this urgency in reaching its decision.

         Defenders have filed a Motion for Leave to File a Fourth Supplemental and Amended Complaint in order to update its claims to incorporate the 2016 EIS and 2016 ROD. (Doc. 106.) Defenders also have filed a Motion for Leave to File Surreply in response to arguments newly raised in Federal Defendants' Reply Brief for their Motion for Partial Dismissal and to Dissolve the Preliminary Injunction. (Doc. 113.)

         II. Standard of Review for Dissolution of an Injunction

         Federal Defendants' desire to dissolve the preliminary injunction requires the most substantial analysis from the Court. The Court accordingly dedicates the large majority of this Order to that portion of Federal Defendants' motion. A court that issues an injunction posseses "continuing jurisdiction to terminate, dissolve, vacate, or modify an injunction or an interlocutory order in the event that changed circumstances require it, " Univ. of Haw. Prof I Assembly v. Cayetano, 125 F.Supp.2d 1237, 1240 (D. Haw. 2000), citing United States v. Oregon, 769 F.2d 1410, 1416 (9th Cir. 1985). The party requesting dissolution bears the burden of demonstrating that a significant change in the facts or the law of the case at issue has occurred. All. for Wild Rockies v. Kruger, 15 F.Supp.3d 1052, 1054 (D. Mont. 2014). A significant change within the meaning of this standard pertains to a change regarding "the underlying reasons for the injunction." Moon v. GMAC Mortg. Corp., 2008 WL 4741492, at *2 (W.D. Wash. Oct. 24, 2008).

         III. Motion to Dissolve the Preliminary Injunction and for Partial Dismissal

         Federal Defendants argue that the Court should dissolve the injunction on the basis that the 2016 EIS and 2016 ROD remedy "the issues identified by the Court in its preliminary injunction order." (Doc. 101 at 15.) Federal Defendants contend that the issuance of these documents constitutes a significant change in facts regarding the underlying reasons for the Court's preliminary injunction ...


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