Grand Canyon Trust v. U.S. Bureau of Reclamation, et al

Filing 302

ORDER denying 291 Motion for injunction pending appeal. Signed by Judge David G Campbell on 7/27/2011.(NVO)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Grand Canyon Trust,

No. CV07-8164-PHX-DGC

Plaintiff,

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ORDER

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vs.

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United States Bureau of Reclamation, et al.,
Defendants.

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Plaintiff Grand Canyon Trust has filed a motion for an injunction pending appeal.

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Doc. 291-292.

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Intervenors have joined the response (Doc. 296), and the Trust has filed a reply

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(Doc. 301). No party has requested oral argument. The Court will deny the motion.

Federal Defendants have filed a response (Doc. 295), Defendant-

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A.

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While an appeal is pending from an order denying an injunction, the court may

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“grant an injunction on terms for bond or other terms that secure the opposing party’s

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rights.”

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‘to preserve the status quo where in its sound discretion, the court deems the

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circumstances so justify[.]’” Christian Science Reading Room v. City & County of S.F.,

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784 F.2d 1010, 1017 (9th Cir. 1986) (citation omitted). A party may obtain an injunction

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under Rule 62(c) by showing that it is likely to succeed on appeal, that it is likely to

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suffer irreparable harm in the absence of injunctive relief, that the balance of hardships

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tips in its favor, and that an injunction is in the public interest. See Winter v. Natural Res.

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Def. Council, 555 U.S. 7, 129 S. Ct. 365, 374 (2008). The test includes a sliding scale. If

Legal standard.

Fed. R. Civ. P. 62(c).

This rule “codifies the inherent power of a court

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the movant shows that the balance of hardships will tip sharply in its favor, it need not

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make as strong a showing of the likelihood of success on appeal – the existence of serious

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questions will suffice. See Alliance for Wild Rockies v. Cottrell, 622 F.3d 1045, 1049-53

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(9th Cir. 2010); see also Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983) (standard

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for obtaining a preliminary injunction applies to motions for injunctions pending appeal).

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B.

The Trust has not challenged the actions for which it seeks relief.

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The Trust states that its motion is based on Claim 3 of its Third Supplemental

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Complaint. Doc. 292. Claim 3 alleges that Reclamation’s operation of Glen Canyon

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Dam results in illegal take of the humpback chub under section 9 of the Endangered

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Species Act (“ESA”). Specifically, Claim 3 alleges that releasing water from the Dam

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under a Modified Low Fluctuating Flow regime causes take, and that the incidental take

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statement in the 1994 Biological Opinion is not valid. Doc. 264 ¶¶ 79-82. Claim 3 does

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not assert the wrong addressed in the Trust’s motion for an injunction pending appeal –

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that Reclamation’s failure to implement nonnative fish control during 2011 is resulting in

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take of the endangered Humpback Chub.

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Even if Claim 3 could be read broadly enough to encompass this alleged wrong,

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the wrong has never been addressed by this Court and therefore is not part of the Trust’s

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appeal. The history of the case makes this point clear.

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The Dam currently is being operated under a 2008 Experimental Plan that has

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been discussed at length in the Court’s previous orders. One of the chub conservation

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measures under the plan is the mechanical removal of rainbow trout – a nonnative to the

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Colorado River that preys on the humpback chub. Due to concerns expressed by the Zuni

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Tribe that killing of trout near the mouth of the Little Colorado River desecrated one of

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their most sacred religious sites, Reclamation cancelled the mechanical trout removal

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trips scheduled for May and June of 2010. Doc. 222. This cancellation resulted in

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renewed consultation between the U.S. Fish and Wildlife Service (“FWS”) and

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Reclamation, and in November of 2010 FWS issued a new Biological Opinion and ITS

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that specifically addressed the cancellation of the 2010 trout removal. Doc. 274.
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In response to this new Biological Opinion and ITS, the Trust moved to withdraw

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a motion to vacate and motion for summary judgment it had filed in October of 2010 on

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remaining claims in the case. Doc. 275. The Trust withdrew these motions so it could

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“reassert Claim 3 and amend Claims 12 and 13 . . . to address the November 9, 2010

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Biological Opinion and Incidental Take Statement.” Id.

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wanted to challenge FWS’ conclusion that cancellation of 2010 trout removal did not

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result in illegal take of the chub. The Court granted the motion to withdraw (Doc. 282),

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but the Trust never supplemented its complaint to assert this new claim. During a

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telephone conference in February of 2011 (Doc. 285), the Trust changed its mind in light

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of a discussion concerning the future schedule of this case. Federal Defendants explained

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during the conference call that FWS and Reclamation were in consultation regarding

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trout control for the years after 2010, and that this consultation likely would produce

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additional agency documents in May or June of this year. Rather than waiting to file

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additional claims once these new documents were produced – in other words, rather than

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waiting to challenge the 2011 policy on trout removal – the Trust asked the Court to

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complete this case by ruling on the motion to vacate and motion for summary judgment

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that had been filed in October of 2011 and later withdrawn. After considering this

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suggestion, the Court agreed. Doc. 286. The Court ruled on these motions on March 30,

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2011, entering final judgment in favor of Defendants. Doc. 287.

In other words, the Trust

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Thus, the Trust elected not to challenge the Biological Opinion and ITS issued in

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November of 2010 concerning the 2010 suspension of trout removal, and elected not to

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wait for FWS and Reclamation’s current policy on trout removal so that it could include

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that policy in a supplemental complaint. Doc. 287 at 17. Because these issues were not

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raised in this Court, they cannot be raised on appeal and cannot form the basis for an

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injunction pending appeal.

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C.

The Trust has not shown it is entitled to an injunction.

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The Trust cannot show it is likely to prevail on appeal with respect to the 2010

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Biological Opinion and ITS that it failed to challenge in this Court. See Doc. 287 at 5 &
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n. 2. Perhaps for this reason, the Trust’s motion for an injunction pending appeal focuses

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on the absence of trout removal in 2011. See Doc. 292 at 2 (“at this time Reclamation is

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not controlling nonnative trout” (emphasis added)); Doc.301 at 6 (“Reclamation has no

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intention to avoid unlawful take in the summer of 2011”).

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The Federal Defendants’ response to the motion includes a declaration by Larry

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Walkoviak, Regional Director of Reclamation’s Upper Colorado Region. Doc. 295-1.

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The declaration explains that Reclamation has been involved in an extensive and detailed

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analysis of trout removal measures that has involved consultations with several Indian

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tribes and other Colorado River stakeholders, public hearings, scientific analyses, a draft

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Environmental Assessment, and consultation with FWS. As Mr. Walkoviak explains:

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“The additional time taken by Reclamation, the USGS, other federal agencies and

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stakeholders is not a reflection of inactivity, a failure to prioritize the project, or a failure

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to appreciate the importance of completing the decision-making process in 2011 with

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respect to non-native fish control measures. Instead, Reclamation has been diligently

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working to complete the process and address stakeholder input[.]” Id. at 5.

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Mr. Walkoviak explains that the proposed action being evaluated by Reclamation

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includes expanding the period for nonnative fish control measures to ten years (not just

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through completion of the 2008 Experimental Plan in 2012), up to six trips per year to

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remove nonnative fish from the Lower Colorado River reach if the adult chub population

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drops below 7,000 fish, up to ten trips per year to remove nonnative fish from the

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Colorado River reach extending from the Paria River to Badger Creek (above the

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confluence with the Lower Colorado River), researching whether Lees Ferry is the source

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of the trout that prey on the chub at the Lower Colorado River confluence (through

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tracking tags and monitoring), researching whether removal between the Paria River and

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Badger Creek can sufficiently control the trout population, increasing the marking and

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monitoring of young humpback chub to more precisely determine the effect of trout

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predation on the chub, and developing tests to determine whether flow releases from the

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Dam could be used to control the trout population. Id. at 9-10. The plan includes
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monitoring activities and tests of live trout removal this year. Id. at 11-12.

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In reply, the Trust argues that the Walkoviak declaration constitutes a statement of

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future plans that cannot satisfy the ESA. The Trust also argues that the complexity of a

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problem does not excuse ESA compliance.

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Reclamation is undertaking a substantial and detailed effort to deal with the issue of

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nonnative fish and to permit nonnative fish control while accommodating the interest of

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Native Americans.

But the Trust does not dispute that

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The Trust’s reply also makes various arguments about the current state of affairs

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on the river – arguments that were never made as part of the summary judgment briefing

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and that cannot be raised on appeal. Doc. 301 at 2-7. Among these arguments, the Trust

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contends that Reclamation now views nonnative fish control as unnecessary. Id. at 5.

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The declaration of Mr. Walkoviak proves otherwise. Reclamation’s detailed efforts seek

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to accomplish nonnative fish control while accommodating concerns of Native

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Americans that killing of trout should not occur in their sacred areas. Doc, 295-1.

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For several reasons, the Court concludes that the Trust arguments regarding the

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lack of nonnative fish removal in 2011 do not make the showing required for an

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injunction pending appeal.

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First, as already noted, because the Trust did not raise most of the 2011 arguments

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during the summary judgment briefing or in a supplemental complaint, the Trust cannot

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raise them on appeal. The Trust therefore is not likely to prevail on appeal, or raise

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serious questions on appeal, with respect to these arguments.

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Second, Reclamation has not been inactive on the issue of nonnative fish control

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during 2011. The declaration of Mr. Walkoviak shows that Reclamation is working

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diligently on this issue in conjunction with numerous stakeholders, and will be issuing an

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Environmental Assessment and ten-year plan for nonnative fish control during 2011.

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Third, the Court cannot conclude that the Trust’s proposed injunction is in the

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public interest. The Trust seeks a broad and vague injunction: “Defendant U.S. Bureau

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of Reclamation shall avoid taking humpback chub in violation of section 9 of the
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Endangered Species Act, 16 U.S.C. § 1538(a)(1)(B), by implementing the conservation

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measure of nonnative control.” Doc. 291-1. Such an injunction would provide little

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guidance to Reclamation. Mr. Walkoviak’s declaration states that Reclamation is not

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aware of steps it could take to accomplish this objective beyond those already are

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underway. To the extent such an order would mean that Reclamation must cut short the

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detailed and careful analysis and consultation currently under way with respect to

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nonnative fish control, ignoring concerns expressed by Native Americans and the input

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provided by other agencies and interested parties, the Court cannot conclude that such an

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order would be in the public interest. A deliberative but efficient process that includes all

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Colorado River stakeholders, as well as careful research and monitoring, is more

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consistent with the public interest.

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IT IS ORDERED that the Trust’s motion for injunction pending appeal
(Doc. 291) is denied.
Dated this 27th day of July, 2011.

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