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Defenders of Wildlife v. United States Army Corps of Engineers

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

July 20, 2018

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

          Brian Morris United States District Court Judge.

         I. BACKGROUND

         This matter comes to the Court following an Order from the Ninth Circuit that dissolved a preliminary injunction imposed by the Court on July 15, 2017. (Doc. 185.) The United States Fish and Wildlife Service ("FWS") listed pallid sturgeon as endangered in 1990. 55 Fed. Reg. 36, 641. The largest wild pallid sturgeon population in the world exists on the Missouri River between the Fort Peck Dam and Lake Sakakawea. Fewer than 125 wild pallid sturgeons remain. NBOR0000018. 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. NBOR0000024. The Intake Dam sits approximately seventy 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. NBOR0000016-17. The drift distance can range from 152 to 329 miles. Id. The lower oxygen levels found in a lake environment significantly decrease pallid sturgeon survival rates. NUSACEOO15437-38. Larvae hatched below the Intake Dam lack sufficient "drift distance" to develop before they reach the lower oxygen levels in the water of Lake Sakakawea. Id. The larvae would have the opportunity to develop sufficiently before they reached Lake Sakakawea if pallid sturgeon could spawn upstream of the Intake Dam. This extra development time likely would render the pallid sturgeon able to swim and thereby remain in the more hospitable river environment.

         The Corps operates the Fort Peck Dam. NUSACE0037198. The Corps possesses discretionary control over the operation of Fort Peck Dam for multiple purposes, including flood control, irrigation, hydropower generation, recreation, and management offish and wildlife. Id. The Corps has completed two formal consultations with FWS that address the impacts of the agency's Fort Peck Dam operations on pallid sturgeon. The first consultation occurred when FWS issued a biological opinion ("2000 BiOp"). NUSACE0028982-29014.

         The 2000 BiOp determined that the Corps's operation at Fort Peck Dam likely would jeopardize pallid sturgeon by precluding the species from successfully reproducing in the wild. Id. The 2000 BiOp provided reasonable and prudent alternatives ("RPAs"), as required by the ESA, that if implemented would have allowed the Corps to comply with the ESA. The Corps failed to implement these RPAs.

         FWS issued an amended BiOp in 2003 ("2003 BiOp"). NUSACE26256-553. FWS concluded again that the Corps's Fort Peck Dam operations jeopardize the pallid sturgeon. NUSACE0026423-24. The 2003 BiOp prescribed a series of RPAs that would have allowed for compliance with the ESA. NUS ACE0026464-86. The Corps again failed to implement the essential elements of these RPAs. The Corps and FWS re-initiated consultation on the Fort Peck Dam operations for a third time in 2015. NBOR0000011.

         The Bureau operates Intake Dam and oversees the four irrigation districts known as the Lower Yellowstone Irrigation Project ("LYP"). NBOR0014429. The Intake Dam consists of a wood structure topped with rocks along the crest. The existing weir requires nearly annual replacement of rocks on the crest to hold back sufficient water to service irrigation needs. NBOR0014514-15. The Bureau accomplishes this task currently with a series of large buckets transported on cables above the river. Id.

         The Bureau and the Corps adopted a plan in 2010 to construct a new permanent concrete diversion dam, a rock-lined ramp over the dam for pallid sturgeon passage, and a new headworks facility with fish screens to reduce the entrainment offish in the irrigation canal. NBOR0004779. The Bureau and the Corps constructed the new headworks facility in 2012. NBOR0017165. The Bureau and the Corps abandoned the plan to build the concrete dam with a rock ramp, however, primarily due to costs.

         The Bureau and the Corps ultimately identified the construction of a new dam and artificial bypass channel as the preferred solution ("the Project"). The Bureau and the Corps intend to spend $57 million to replace the existing wood and rock weir at Intake Dam with a concrete weir to ensure continued irrigation water to the 56, 800 acres currently serviced by Intake Dam. NBOR0014527-28.

         Five pallid sturgeons successfully used a natural side channel around the existing weir in 2014 during unusually high water. NBOR0000033-34, 38. 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 proposed concrete weir. NBOR0012310.

         II. PROCEDURAL HISTORY

         Plaintiff Defenders of Wildlife filed their initial Complaint in February of 2015. (Doc. 1.) The Court granted Plaintiffs Motion for Preliminary Injunction on September 4, 2015, to enjoin Federal Defendant agencies ("Federal Defendants") from initiating construction on the Project. The Court ordered Federal Defendants to complete an Environmental Impact Statement ("EIS"). (Doc. 73.) 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 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 and issued a biological opinion ("BiOp") in Fall of 2016, and issued a Record of Decision ("ROD") on December 2, 2016, in response to the Court's order. (Doc, 101 at 9.) The Court dissolved the preliminary injunction on April 19, 2017. (Doc. 118.) The Court also granted Plaintiffs Motion for Leave to file a Fourth Supplemental Amended Complaint. Id.

         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 Amended Complaint on April 20, 2017, that incorporated challenges to Federal Defendants' 2016 NEPA and ESA documents. (Doc. 119).

         The Court granted Plaintiffs Motion for a Preliminary Injunction to halt the construction related to the Project and preserve the status quo on July 5, 2017. (Doc. 155.) The Court reasoned that Plaintiff likely would succeed on the merits for their ESA, NEPA, and CWA claims as contained in their Fourth Supplemental Amended Complaint. The Ninth Circuit subsequently vacated this second preliminary injunction on April 4, 2018. (Doc. 185.)

         The Ninth Circuit determined that this Court improperly considered the harm caused by the "continued operation of the existing weir" in its assessment of the irreparable harm attributable to the Project. Id. at 3. This Court wrongly flipped the burden to require that the Corps prove that the Project would allow successful pallid sturgeon passage rather than require that Plaintiff prove irreparable harm. Id. at 4. The Ninth Circuit further determined that this Court lacked any basis to conclude that Plaintiff had established a likelihood of success on the merits of its claims under the ESA, NEPA, and the CWA. Id.

         Plaintiff brings its current Motion for Summary Judgment on the basis of Claims 1, 2, 4, 5, and 11-14 of the Fourth Supplemental Amended Complaint.

         Claims 1 and 2 challenge the decade-long operations of the Fort Peck Dam by the Corps in violation of the ESA. Claims 4 and 5 challenge the decade-long operations of the Intake Dam by the Bureau in violation of the ESA. Claim 11 challenges the Corps's and the Bureau's 2016 EIS and ROD for violations of NEPA. Claim 12 challenges FWS's 2016 BiOp for violations of the ESA. Claim 13 challenges the Corps's and the Bureau's reliance on the 2016 BiOp for violations of the ESA. Claim 14 challenges the Corps's 2016 CWA approval of the Project.

         III. LEGAL STANDARD

         A court should grant summary judgment where the movant demonstrates that no genuine dispute exists "as to any material fact" and the movant is "entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Summary judgment remains appropriate for resolving a challenge to a federal agency's actions when review will be based primarily on the administrative record. Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 778 (9th Cir. 2006).

         The Court reviews NEPA, ESA, and CWA compliance through the Administrative Procedures Act ("AP A"). Native Ecosystems Council v. Dombeck, 304 F.3d 886, 891-91 (9th Cir. 2002); Friends of the Earth v. Hintz, 800 F.2d 822, 830-31 (9th Cir. 1986). The APA instructs a reviewing court to "hold unlawful and set aside" agency action deemed "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).

         APA review requires the Court to consider whether an agency based a particular decision on "consideration of the relevant factors." Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971) (citations omitted). This inquiry must be "thorough," "probing," and "in-depth." Id. at 415. The Court generally must defer to the judgment of the agency. League of Wilderness Defs.-Blue Mountains Biodiversity Project v. U.S. Forest Serv., 549 F.3d 1211, 1215 (9th Cir. 2008).

         The Court should reverse a decision as arbitrary and capricious only where "a clear error of judgment" has occurred. Id. This "clear error of judgment" may entail the following scenarios: 1) the agency's reliance on factors "Congress did not intend [for] it to consider;" 2) the agency's failure to "consider an important aspect of the problem;" 3) the agency's explanation "runs counter to the evidence" or "is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Id.

         IV. ANALYSIS

         A. FWS's 2016 BiOp and Incidental Take Statement ("ITS") for the Project does not violate the ESA.

         The ESA serves as a safety net for species at risk of extinction and facilitates the recovery of imperiled species. 16U.S.C. § 1531(b). Section 7(a)(2) requires federal agencies, in consultation with the expert wildlife agency, to ensure that "any action authorized, funded, or carried out by such agency" is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of the species' designated "critical habitat." 16 U.S.C. § 1536(a)(2), (4). To jeopardize a species means 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.

         The ESA requires a consultation process that results in FWS issuing a biological opinion ("BiOp"). The BiOp details whether the proposed federal action likely would cause jeopardy and identifies RPAs. 16 U.S.C. § 1536(b)(3)(A). RPAs encompass those actions that FWS "believes would not violate section 7(a)(2) and can be taken by the federal agency in implementing agency actions." 16 U.S.C. § 1536(b)(3)(A).

         Section 9 prohibits any person from "taking" members of an endangered species offish or wildlife. 16 U.S.C. § 1538(a)(1)(B). "Take" means to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19). The first part of ESA consultation requires the agency to work with FWS to produce a BiOp that concludes whether the proposed action would cause jeopardy. This BiOp may determine, however, that the agency's proposed action could result in incidental take of listed species.

         The consulting agency, in this case, FWS, must issue an ITS to the action agency. The ITS formulates the extent of take, or, in the alternative, a surrogate for triggering re-initiation of consultation between the agency and FWS. 16 U.S.C. § 1536(b)(4), The ITS exempts the take from Section 9 liability when two conditions have been fulfilled: the proposed federal action must result in take that remains incidental to the proposed action and the terms and conditions of the ITS have been fulfilled. 16 U.S.C, §§ 1536(b)(4); (o)(2).

         i. FWS analyzed whether a take of fifty-nine percent of adult pallid sturgeon approaching the ...


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