United States District Court, D. Montana, Great Falls Division
DEFENDERS OF WILDLIFE, and NATURAL RESOURCE DEFENSE COUNCIL Plaintiffs,
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 PLAINTIFFS' MOTION FOR
Morris United States District Court Judge
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
decades of testing and analysis apparently have persuaded the
Federal Defendants that no amount of tinkering with the
operation can overcome the insurmountable barrier to pallid
sturgeon spawning posed by the Fort Peck Dam. As a result,
the Federal Defendants have turned all of their efforts
required by the Endangered Species Act ("ESA") to
the Intake Dam and the farmers currently served by the
irrigation water provided by it.
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
lower 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 would have the
opportunity to develop sufficiently before they reached Lake
Sakakawea. This extra development time likely would render
the pallid sturgeon able to swim to remain in the more
hospitable river environment.
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).
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 and Finding of No Significant Impact in 2015. (BOR
Defenders of Wildlife filed the Complaint to initiate this
action in February of 2015. (Doc. 1.) Plaintiff filed a
Motion for Preliminary Injunction on July 28, 2015, to enjoin
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.)
Court granted Plaintiffs Motion for Preliminary Injunction on
September 4, 2015. (Doc. 73.) The Court determined that
Plaintiffs claim warranted a preliminary injunction on the
basis that Federal Defendants had failed to complete a full
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 Intake Dam for
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 a Motion for Partial Dismissal and to
Dissolve the Injunction on February 1, 2017. (Doc. 100.)
Federal Defendants sought to dismiss Count 6 of Plaintiff s
Third Supplemental and Amended Complaint. (Doc. 101 at 9-13.)
Federal Defendants also sought to dissolve the Court's
prior injunction. Id. at 13-22. The Court held a
hearing on the Motions for Partial Dismissal and to Dissolve
the Injunction on April 5, 2017, and subsequently issued an
Order granting Federal Defendants' motion and granting
Plaintiffs Motion for Leave to file a Fourth Supplemental and
Amended Complaint. (Doc. 117, 118.)
Court reasoned that Federal Defendants' new National
Environmental Policy Act ("NEPA") decisional
documents-the 2016 EIS and the 2016 ROD- sufficiently
corrected the Federal Defendants' NEPA violations at the
heart of the original preliminary injunction. (Doc. 118.)
Plaintiff filed a Fourth Supplemental and Amended Complaint
that incorporated challenges to Federal Defendants' 2016
NEPA and Endangered Species Act ("ESA") documents
on April 20, 2017. (Doc. 119).
brings its current Motion for Preliminary Injunction on the
basis of claims 11-14 of the Fourth Supplemental and Amended
Complaint. (Doc. 122.) Plaintiff seek a preliminary
injunction that would halt the construction related to the
Project and preserve the status quo until the parties can
brief dispositive motions in an expedited schedule. (Doc.
122.) Plaintiffs Motion for Preliminary Injunction proves the
more complex of the two pending motions. The majority of this
Order will focus on the request for a preliminary injunction.
plaintiff must demonstrate "that [it] is likely to
succeed on the merits, that [it] is likely to suffer
irreparable harm in the absence of preliminary relief, that
the balance of equities tips in [its] favor, and that an
injunction is in the public interest" in order to obtain
a preliminary injunction. Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008). Injunctive relief
constitutes an "extreme remedy" that never should
be awarded as a matter of right. Id. at 22-24. A
plaintiff need only show a likelihood of success on the
merits and a likelihood of irreparable harm for ESA claims.
Cottonwood Envti. Law Ctr. v. U.S. Forest Serv., 789
F.3d 1075, 1090-91 (9th Cir. 2015). Demonstrating a
likelihood of irreparable harm on the basis of an ESA claim
"should not be an onerous task for plaintiffs."
Id. at 1091.
Court first must address the likelihood of success on the
merits for claims under each relevant statute. The Court then
will address Plaintiffs alleged irreparable harm to the
pallid sturgeon generally. The Court finally will address the
balance of equities and the public interest prongs of the
analysis in relation to the NEPA and Clean Water Act
Likelihood of Success on the Merits
strongest and most complex claims fall under the ESA.
Section 7(a)(2) provides that each federal agency shall
"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 habitat" of the species. 16 U.S.C. § 1536(a)(2).
The consulting agency must prepare a biological opinion if it
appears that an action may affect an endangered or threatened
species. Cottonwood Envtl. L. Or., 789 F.3d at 1085.
biological opinion should explain how the action
"'affects the species or its critical
habitat.'" Id. (quoting 16 U.S.C. §
1536(b)(3)(A)). The consulting agency must suggest
"reasonable and prudent alternatives" when the
biological opinion concludes that the action proves likely to
jeopardize an endangered or threatened species. 16 U.S.C.
§ 1536(b)(3)(A). The consulting agency may proceed with
the action if the biological opinion concludes that the
action proves unlikely to jeopardize an endangered or
threatened species. Id.
Court reviews compliance with NEPA, CWA, and the ESA under
the judicial process set forth in the Administrative
Procedures Act ("APA"). 5 U.S.C.
§§701-706; Native Ecosystems Council v.
Dembeck, 304 F.3d 886, 891 (9th Cir. 2002). The decision
may be set aside only when the court finds the agency's
decision "arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law." Oregon
Nat. Resources Council Fund v. Goodman, 505 F.3d 884,
889 (9th Cir. 2007) (quoting 5 U.S.C. § 706(2)(A)). A
final agency decision will be overturned only if the agency
committed "clear error in judgment" Marsh,
490 U.S. at 378. Plaintiff asserts that Federal
Defendants' 2016 pallid sturgeon BiOp violates the ESA
and otherwise proves arbitrary and capricious. (Doc. 123 at
Incidental Take Statement
argues that the 2016 BiOp unlawfully fails to evaluate the
impact on pallid sturgeon from the level of take authorized
in the Incidental Take Statement ("ITS").
Id. at 24-26. The ITS consists of a separate
document governed by the ESA that shields the action
agencies-in this case the Bureau of Reclamation and the Army
Corps of Engineers-from take liability under Section Nine of
the ESA. 16 U.S.C. § 1536(o). The meaning of
"take" encompasses a wide range of activities
toward an endangered animal, including the prevention of
breeding at issue in this case. Id., at §
requires that the Fish and Wildlife Service provide an ITS
with any BiOp that finds that no jeopardy will result from
the relevant action. 50 C.F.R. § 402.14(i)(1). The ITS
must contain an "anticipated take" limit, over
which the action agencies must reinitiate Section Seven
consultation under the ESA. 50 C.F.R. § 402.14(i)(4).
The Fish and Wildlife Service can use a "surrogate"
figure rather than an exact number of individuals to comprise
the ITS take limit. 50 C.F.R. § 402.14(i)(1)(i). The
Federal Defendants' ...