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.
Morris United States District Court Judge.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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).
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.)
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.
brings its current Motion for Summary Judgment on the basis
of Claims 1, 2, 4, 5, and 11-14 of the Fourth Supplemental
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.
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).
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).
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).
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.
FWS's 2016 BiOp and Incidental Take Statement
("ITS") for the Project does not violate the
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.
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. §
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.
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).
FWS analyzed whether a take of fifty-nine percent of adult
pallid sturgeon approaching the ...