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Defenders of Wildlife v. United States Army Corps of Engineers

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

July 5, 2017



          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.

         Two 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.

         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 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.

         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 and Finding of No Significant Impact in 2015. (BOR 2053-2636).

         Plaintiff 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.)

         The 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 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 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.)

         The 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).

         Plaintiff 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.


         A 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.

         III. ANALYSIS

         The 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 ("CWA") claims.

         a. Likelihood of Success on the Merits

         Plaintiffs strongest and most complex claims fall under the ESA.

         1. ESA Claims

         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.

         The 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.

         The 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 24.)

         A. Incidental Take Statement

         Plaintiff 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 § 1532(19).

         The ESA 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' ...

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