South Yuba River Citizens League et al v. National Marine Fisheries Service et al

Filing 402

ORDER signed by Senior Judge Lawrence K. Karlton on 7/25/11 ORDERING that Plaitiffs' MOTION for Final Remedies 363 is GRANTED in part and DENIED in part; Defendants MAY move for relief from Judgment upon a showing that they have complied with this Court's remand order 398 . Defendants' MOTION to STRIKE and/or Exclude Evidence 380 is DENIED. American Rivers, Inc.'s unopposed MOTION for Leave to File an Amicus Brief 392 is GRANTED. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

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SOUTH YUBA RIVER CITIZENS
LEAGUE and FRIENDS OF THE
RIVER,
NO. CIV. S-06-2845 LKK/JFM

13
Plaintiffs,
14
v.

O R D E R

15
16

NATIONAL MARINE FISHERIES
SERVICE, et al.,

17

Defendants.

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19

/
This

order

addresses

whether

any

interim

measures

are

20

appropriate during the remand period where the federal defendants

21

were found to have violated the Endangered Species’ Act (“ESA”).

22

In an order issued on July 8, 2010, (the “July Order”) this court

23

held that the National Marine Fishery Service acted arbitrarily and

24

capriciously in issuing a 2007 Biological Opinion (“BiOp”) that

25

concluded that operations associated with the Englebright and

26

Daguerre dams on the Yuba River posed no jeopardy to the survival
1

1

of spring-run Chinook salmon (“chinook”), Central Valley Steelhead

2

(“steelhead”),

3

threatened species list. In an order issued on April 29, 2011, this

4

court remanded the matter back to the National Marine Fishery

5

Service (“NMFS”) to prepare a new BiOp consistent with the court’s

6

July Order. The April order requires the NMFS to complete the BiOp

7

by December 12, 2011. See ECF No. 378.

and

green

sturgeon,

all

of

which

are

on

the

8

Plaintiffs seek injunctive relief in the form of nine interim

9

measures to protect the species until a new BiOp is prepared by the

10

agency. Defendants argue that the only appropriate remedy is to

11

remand the matter to the NMFS. For the reasons stated below, the

12

plaintiffs’ motion is GRANTED in part and DENIED in part.
I. Procedural Background

13
14

This court’s July Order addressed claims by plaintiff that

15

the

National

16

capriciously in adopting the BiOp, in violation of Section 7 of the

17

Endangered Species Act. This court held that the BiOp was arbitrary

18

and capricious because it concluded that the operation of the dams

19

would

20

conclusion was not supported by the record. Upon a finding that a

21

project poses no jeopardy to the survival or recovery of a

22

threatened species, an agency may operate the project pursuant to

23

an Incidental Take Statement (“ITS”). The ITS specifies (1) what

24

incidental “takings” of individual species will result from the

25

project, (2) the mitigation measures that are necessary to minimize

26

the takings, and (3) the terms and conditions that must be complied

pose

Marine

“no

Fishery

jeopardy”

to

Service

the

2

acted

threatened

arbitrarily

fish,

when

and

that

1

with to implement those mitigation measures. The court held that

2

the NMFS had not sufficiently supported its no-jeopardy conclusion,

3

“but not that a jeopardy conclusion was inescapable.” July 8 Order

4

16:18. In particular, the court found the following defects in the

5

BiOp:

6

(1) The BiOp did not conclude that the populations of the

7

three listed fish are stable, yet it concluded that the project’s

8

unmitigated

9

conclusion about the effects of the project must take the current

10

status of the population into account. Without a finding that the

11

three

12

rationally conclude that the unmitigated effects of the project

13

would not jeopardize the species. July Order 19.

listed

effects

fish

would

not

populations

jeopardize

are

stable,

the

species.

the

BiOp

Any

cannot

14

(2) The BiOp concludes that the project will continue to

15

impose stressors on listed species without explaining why these

16

stressors will not jeopardize the species. Those stressors are:

17

migration barriers caused by Daguerre Point Dam and Engelbrigt Dam;

18

irregular flow regimes and temperature, leading to pre-spawning

19

mortality and reduced reproductive success; interference with

20

gravel

21

Englebright Dam; and entrainment and impingement.1 Because the BiOp

22

failed “to discuss (through some method) the magnitude of the

accumulation

and

compromised

spawning

habitat

below

23
24
25
26

1

Where water is diverted, a screen is used to keep fish from
being “entrained,” i.e., diverted from the river to the diversion
channel. Although these screens are necessary to protect fish, they
also present a risk to fish, as fish can be “impinged,” i.e.,
trapped against the screen by the force of water.
3

1

stressors’ impact,

the populations’ ability to tolerate this

2

impact, and the reason why any decline will not reduce the overall

3

likelihood

of

4

determine

that

5

reproduction, population, distribution, or diversity–the factors

6

necessary for the species to survive. July Order 38.

survival
the

or

recovery,”

stressors

will

it

not

could
cause

not
a

properly

decline

in

7

(3) The BiOp omits any analysis of the possibility of a period

8

of increased entrainment due to the cumulative effect of the

9

challenged project and the Wheatland project. Additionally, the

10

BiOp did not support its conclusion that the Corps’ operations,

11

when considered in the context of the Wheatland project, will not

12

jeopardize the green sturgeon population.

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(4) The BiOp does not discuss other stressors that might

14

jeopardize the listed species. Those stressors are: hatcheries, the

15

San Francisco Bay Delta, the species’ overall depressed conditions,

16

global warming, and poaching. Even if the agency determined these

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factors to be unimportant, it must provide a reasoned explanation

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for that conclusion.

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(5) With respect to critical habitat for the listed species,

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the BiOp does not support its conclusion that the restoration

21

measures

22

magnitude outweighs the project’s impacts.

described

in

the

BiOp

will

provide

benefits

whose

23

The court ordered additional briefing on the issue of whether

24

the Corps violated the terms and conditions of the ITS, and whether

25

the plaintiffs would be entitled to preliminary relief if such a

26

violation had occurred. On November 16, 2010, after supplemental
4

1

briefing on the issue the court dismissed as prudentially moot

2

plaintiffs’ claim that the Corps had violated the ITS, and denied

3

plaintiffs’ motions for a preliminary injunction. On November 23,

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2010, this court entered an order approving a stipulation by the

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parties. In that stipulation, the parties agreed, inter alia, that

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the BiOp and ITS should not be vacated during remand. Thus, the

7

project is currently operating pursuant to the 2007 BiOp and the

8

ITS.

9

In April 2011, the court remanded the matter back to the NMFS

10

to complete a new BiOp consistent with the July Order by December

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12, 2011.
II. Analysis

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13

Plaintiffs propose an injunction requiring the defendants to

14

comply with nine measures, which plaintiffs argue are necessary to

15

prevent the project from jeopardizing the survival or recovery of

16

the listed species while a new BiOp is prepared. Plaintiffs’

17

proposed interim measures are:

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(1) developing and implementing a written operation plan

19

for optimum operation and maintenance of the Daguerre

20

fish ladders, (2) developing and implementing a plan for

21

optimum

22

Daguerre dam spillway to try to concentrate flows over

23

the spillway toward the dam's center, away from the fish

24

ladders

25

installing and operating devices to alert the Corps of

26

debris blockages in the Daguerre

placement

which

are

of

to

movable

either

5

flash

side

of

boards

the

on

dam,

the

(3)

fish ladders, (4)

1

promptly clearing debris blockages from the Daguerre

2

fish ladders, (5) adopting a revised plan for managing

3

sediment

4

re-engineering the south bank of the Yuba River and the

5

main channel of the Yuba River as needed to improve

6

flows to the Daguerre south fish ladder, (6) installing

7

grates over the Daguerre fish ladders to prevent fish

8

from

9

poaching,

build-up

jumping

out

(7)

above

of

Daguerre

these

installing

and

ladders
a

a

and

plan

to

temporary,

for

prevent
seasonal

10

artificial segregation weir within the Yuba River below

11

Englebright to create a temporary, impassable barrier

12

segregating spring Chinook from fall run Chinook and

13

allowing the former to spawn without competition from

14

the

15

implementation

16

long-term gravel augmentation plan for creating new

17

spawning habitat in the Yuba River below Englebright,

18

and (9) developing and implementing a plan for securing

19

better

20

vegetation in the Yuba River reach from Englebright to

21

Daguerre.

fall-run

Chinook,
of

an

wood-related

(8)

adopting

improved,

structures

and

commencing

comprehensive

and

native

final

riparian

22

Pls.’ Final Remedy Brief (“Pls.’ Remedy Brief”) 3:13-4:4, ECF No

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363. Plaintiffs also request that defendants file quarterly status

24

reports describing compliance with these measures.

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Defendants argue that remand is the only appropriate remedy.
////
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1

A. Standard of Review for Injunctive Relief under the ESA

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As a preliminary matter, the parties disagree sharply as to

3

the standard of review to be applied for issuing an injunction

4

under the Endangered Species Act. In particular, the parties have

5

differing

6

irreparable

7

injunction may issue absent a showing of irreparable harm if there

8

is a substantial violation of ESA’s procedural requirements. Pls.’

9

Remedy Brief 6. Alternatively, plaintiffs argue that if a showing

10

of irreparable harm is required, the burden is on the defendants

11

to show that no irreparable harm will occur absent the injunction.

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Pls.’ Remedy Brief 7. Additionally, plaintiffs argue that the

13

listed species will suffer irreparable harm absent injunctive

14

relief. Id. at 7. Defendants argue that a showing of irreparable

15

harm is always required in order to obtain an injunction, including

16

under the ESA.

views
harm.

with

respect

Plaintiffs

to
argue

the

necessity

that

under

of
the

showing
ESA,

an

17

The parties discuss the standard for granting injunctive

18

relief under the ESA without distinguishing between the standard

19

for preliminary versus permanent relief. Typically, “a preliminary

20

injunction is effective pendente lite until a decision has been

21

reached on the merits,” whereas “a permanent injunction will issue

22

only after a right thereto has been established at a trial on the

23

merits.” 11A WRIGHT & MILLER , FEDERAL PRACTICE

24

1995). Courts evaluating injunctive relief in environmental cases

25

have also conflated the two types of injunctions. In Monsanto, the

26

Court reviewed the preliminary injunction granted by the district
7

AND

PROCEDURE § 2941 (2d ed.

1

court in Geertson Farms, Inc. v. Johanns, 2007 U.S. Dist. LEXIS

2

21491 (N.D. Cal. 2007), but recited the four-factor test for

3

permanent injunctions: “A plaintiff seeking a permanent injunction

4

must satisfy a four-factor test before a court may grant such

5

relief. A plaintiff must demonstrate: (1) that it has suffered an

6

irreparable injury; (2) that remedies available at law, such as

7

monetary damages, are inadequate to compensate for that injury; (3)

8

that, considering the balance of hardships between the plaintiff

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and defendant, a remedy in equity is warranted; and (4) that the

10

public interest would not be disserved by a permanent injunction."

11

Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2756

12

(2010)(emphasis added)(quoting eBay Inc. v. MercExchange, L.L.C.,

13

547 U.S. 388, 391 (2006)). The Court went on to state, “the

14

traditional four-factor test applies when a plaintiff seeks a

15

permanent injunction to remedy a NEPA violation,” (emphasis added)

16

citing Winter v. NRDC, Inc., 555 U.S. 7 (U.S. 2008), for this

17

proposition even though Winter involved preliminary injunctive

18

relief. In Winter, the Court set forth a different four-factor test

19

to

20

plaintiff seeking a preliminary injunction must establish that he

21

is likely to succeed on the merits, that he is likely to suffer

22

irreparable harm in the absence of preliminary relief, that the

23

balance of equities tips in his favor, and that an injunction is

24

in the public interest." Winter, 555 U.S. at 20. Admittedly, the

25

tests are quite similar. Indeed, “[t]he standard for a preliminary

26

injunction is essentially the same as for a permanent injunction

determine

whether

to

grant

8

a

preliminary

injunction.

“A

1

with the exception that the plaintiff must show a likelihood of

2

success on the merits rather than actual success.” Amoco Prod. Co.

3

v. Vill. of Gambell, 480 U.S. 531, 546 (U.S. 1987).2 This court

4

nonetheless finds it necessary to set forth precisely the standard

5

to apply

to plaintiffs’ motion.

6

In this case, plaintiffs seek nine interim measures that would

7

remain in place until the defendants have remedied their ESA

8

violation by completing a new BiOp. The requested measures are not

9

preliminary in the conventional sense in that the court has already

10

decided the merits of this case. However, the measures are not

11

permanent in the conventional sense in that they may be lifted once

12

the defendants comply with this courts remand order by preparing

13

a new BiOp. Additionally, the circumstances of this case differ

14

from a typical permanent injunction request in that plaintiffs

15

request measures to prevent future irreparable harm, even if they

16

have not proven that irreparable harm has already resulted from

17

defendants’ liable conduct. Having already determined that the

18

defendants are liable for a violation of the ESA, there is no need

19

for the court to evaluate plaintiffs’ likelihood of success on the

20

merits. The court will therefore look at the following factors to

21

determine whether interim injunctive measures are appropriate in

22

this

case:

whether

the

measures

are

necessary

to

prevent

23
24
25
26

2

Additionally, the preliminary injunction standard does not
include evaluation of whether there are adequate remedies at law,
although that question is certainly intertwined with the inquiry
as to whether the type of harm likely to be suffered is
“irreparable.”
9

1

irreparable

injury;

whether

remedies

available

at

law

are

2

inadequate to compensate for that injury; whether the balance of

3

hardships weigh in favor of injunctive relief; and whether the

4

public interest would be served by the injunction.

5

i. The Balance of Hardships and the Public Interest

6

Under the Endangered Species Act, the third and fourth factors

7

always tip in favor of protecting the species. Tennesee Valley

8

Authority v. Hill, 437 U.S. 153 (1978) (“Congress has spoken in the

9

plainest of words, making it abundantly clear that the balance has

10

been struck in favor of affording endangered species the highest

11

of priorities."). Thus, “the balance of hardships and the public

12

interest tip heavily in favor of endangered species. We may not use

13

equity’s scales to strike a different balance.” Sierra Club v.

14

Marsh, 816 F.2d 1376, 1383 (9th Cir. 1987). In this case, the

15

parties agree that Monsanto’s holding that the four-factor test

16

applies to injunctions issued to remedy violations of the National

17

Environmental

18

conclusion that, under the ESA, the balance of hardships and the

19

public interest factors tip towards protecting the species. Fed.

20

Defs.’ Remedy Brief 7:3-5; Pls.’ Remedy Brief 5:26-6:3. Indeed, the

21

Court could not undo Congress’ command in this regard.

Policy

Act

(“NEPA”)

does

not

undo

Congress’

22

Accordingly, the court finds that the balance of hardships and

23

the public interest factors support granting injunctive relief in

24

this case.

25

ii. Irreparable Injury

26

Plaintiffs, however, take their argument a step further by
10

1

urging that the standard of review under ESA also differs from the

2

traditional

3

irreparable harm is required when there is a substantial procedural

4

violation of the ESA in connection with a federal project. Pls.’

5

Remedy Brief 6-7. Prior to Monsanto, the Ninth Circuit had held

6

that a substantial procedural violation of the ESA could warrant

7

issuance of an injunction. In Thomas v. Peterson, 753 F.2d 754 (9th

8

Cir. 1985), the Ninth Circuit found that defendants’ complete failure to

9

prepare a BiOp under the circumstances

analysis

for

injunctions

in

that

no

showing

of

was a substantial procedural

10

violation, for which ”the remedy must be an injunction of the

11

project pending compliance with the ESA.” Id. at 764. This holding

12

was rooted in prior Ninth Circuit cases decided under the National

13

Environmental Policy Act (“NEPA”): “Our cases repeatedly have held

14

that,

15

appropriate

16

requirements. Irreparable damage is presumed to flow from a failure

17

properly to evaluate the environmental impact of a major federal

18

action. We see no reason that the same principle should not apply

19

to procedural violations of the ESA.” Id. (internal citations

20

omitted).

21

undercuts plaintiffs’ assertion that Monsanto, a NEPA case, “does

22

not alter the law governing injunctions under the ESA.” Pls.’ Brief

23

6:4-5. In Monsanto, the Court rejected lower court holdings insofar

24

as they “presume[d] than an injunction is the proper remedy for a

25

NEPA violation except in unusual circumstances.” 130 S. Ct. at

26

2757. Instead of a presumption in favor of issuing an injunction,

absent

‘unusual
remedy

The

Thomas

circumstances,’

for

a

court’s

violation

reliance

11

an
of

on

injunction
NEPA's

earlier

is

the

procedural

NEPA

cases

1

“a court must determine that an injunction should issue under the

2

traditional four-factor test set out above.” Id. The Court went on

3

to conclude that the test had not been satisfied in the case before

4

it, because “[m]ost importantly, respondents cannot show that they

5

will suffer irreparable injury if [defendant] APHIS is allowed to

6

proceed with any partial deregulation.” Id. at 2760.

7

Plaintiffs’ argument is not completely defeated by Monsanto,

8

since in Thomas, the Ninth Circuit distinguished between ESA’s and

9

NEPA’s procedural provisions, holding that “the strict substantive

10

provisions of the ESA justify more stringent enforcement of its

11

procedural requirements [than NEPA’s procedural requirements],

12

because [ESA’s] procedural requirements are designed to ensure

13

compliance with the substantive provisions,” whereas NEPA does not

14

contain substantive provisions. Thomas 753 F.2d at 764. The court

15

went on to conclude that where a project is allowed to proceed

16

without compliance with procedural requirements, “there can be no

17

assurance that a violation of the ESA’s substantive provisions will

18

not result.” Id. Since ESA’s substantive provisions prohibit

19

jeopardizing the survival or recovery of a species--clearly an

20

irreparable

21

showing of irreparable injury is required once a substantial

22

procedural violation is shown. Absent other Ninth Circuit precedent

23

to the contrary, the court might be convinced of plaintiffs’

24

position.

injury–plaintiffs

here

argue

that

no

independent

25

However, in Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries

26

Serv., 422 F.3d 782 (9th Cir. 2005), the Ninth Circuit held that
12

1

rejection by the district court of a BiOp and a finding of

2

irreparable harm were “precisely the circumstances in which our

3

precedent

4

appropriate.” Id. at 796. Further, in National Wildlife Fed'n v.

5

Burlington N. R.R., 23 F.3d 1508 (9th Cir. 1994), the court held

6

“these [Tennessee Valley Authority line of] cases do not stand for

7

the proposition that courts no longer must look at the likelihood

8

of future harm before deciding whether to grant an injunction under

9

the ESA.” Id. at 1511 (internal citations omitted).

10

In

indicates

addition

to

that

the

these

issuance

precedents,

of

an

reason

injunction

dictates

is

that

11

plaintiffs make a showing that the particular injunction they

12

request is necessary to prevent irreparable harm caused by the

13

defendants’ violation of the ESA. It could not be the case that any

14

time defendants are found liable for a significant violation of the

15

ESA’s procedural provisions, the plaintiffs are entitled to any

16

form of injunctive relief that they request. Indeed, “injunctive

17

relief must be tailored to remedy the specific harm alleged.” NRDC

18

v. Winter 508 F.3d 885, 886 (9th Cir. 2007). As a practical matter,

19

the court must decide what irreparable harms are likely to occur

20

to

21

injunction. Here, plaintiff is only entitled to an injunction that

22

prevents irreparable harm caused by defendants’ violation of the

23

Endangered Species Act. Thus, even if a showing of irreparable harm

24

was not necessary for an injunction to issue, such a showing is

25

required in order to justify the specific measures that plaintiffs’

26

request. Accordingly, the court holds that plaintiff must show that

the

species

in

order

to

craft

13

an

appropriately

tailored

1

irreparable harm to the listed species will result from defendants’

2

violation of the ESA in the absence of each measure plaintiffs

3

request.

4

iii. Adequacy of Remedies at Law

5

In environmental cases, it is presumed that remedies at law

6

are inadequate. "Environmental injury, by its nature, can seldom

7

be adequately remedied by money damages and is often permanent or

8

at least of long duration, i.e., irreparable. Cal. ex rel. Lockyer

9

v. United States Dep't of Agric., 2009 U.S. App. LEXIS 19219 (9th

10

Cir. 2009).

11

B. Plaintiffs’ Requested Relief

12

Plaintiffs argue that, given the current degraded condition

13

of

the

population

14

injunctive relief is necessary to prevent irreparable harm to those

15

species. A species’ condition is measured using four criteria:

16

abundance, productivity, spatial structure, and genetic or life

17

history diversity. Plaintiffs provide evidence that the population

18

of all three fish at issue suffer from low abundance. In addition,

19

the chinook population’s productivity is in decline, and its

20

spatial distribution is low. Plaintiffs argue that against this

21

backdrop, the Englebright and Daguerre dams and related operations

22

put the species in jeopardy of extinction while the new BiOp is

23

being produced. This position is consistent with the July Order,

24

which held that the BiOp was arbitrary and capricious because it

25

concluded

26

jeopardize the species, without first concluding that the species

that

the

of

the

three

project’s

protected

unmitigated

14

species

effects

of

fish,

would

not

1

was in a stable condition. Plaintiff argues that nine remedial

2

measures are necessary to improve the species’ chances of survival

3

while a new BiOp is prepared.

4
5

The

defendants

argue

generally

that

the

measures

are

unnecessary to prevent irreparable harm.

6

Because plaintiff is entitled to injunctive relief only

7

insofar as it prevents irreparable harm caused by defendants’

8

violation of the ESA, the court analyzes each of the plaintiffs’

9

requested measures in relation to the deficiencies that the court

10

found in the BiOp. Although the court did not reach any conclusions

11

as to what findings a properly conducted BiOp might reach, the

12

court did note some areas of deficiency upon which it based its

13

conclusion

14

capricious. The court analyzes the plaintiffs’ requested measures

15

in that context. That is, the measures must bear some relation to

16

the deficiencies in the BiOp for which the court held that the

17

defendants were liable for a violation of the ESA.

that

the

issuance

of

the

BiOp

was

arbitrary

and

18

However, because of the BiOp’s failure to produce the data and

19

analysis necessary to determine what measures, precisely, are

20

needed in order to avoid jeopardizing the listed species, it is

21

impossible for the court to tailor a remedy that goes no further

22

than the bare minimum needed to protect the species. Since the

23

irreparable harm that the court is obligated to prevent is jeopardy

24

to the very survival of the species, the court will err on the side

25

of a more protective injunction.

26

Plaintiffs’ burden is also slightly diminished since the
15

1

project is currently operating pursuant to a BiOp that this court

2

found to be inadequate. Under the ESA, “take” of listed species is

3

prohibited, ESA § 9(a); 16 U.S.C § 1538(a), and a project may not

4

operate if it will result in take. Once a valid BiOp determines

5

that the project poses no jeopardy to the survival, “incidental

6

take” is permitted if it is “in compliance with the terms and

7

conditions specified in a written incidental take statement.” ESA

8

§ 7(o)(2); 16 U.S.C § 1536(o)(2). The ITS functions to immunize the

9

Corps for otherwise-prohibited take of listed species. In this case

10

the Corps already determined that the project was likely to affect

11

the

12

obligation on the part of the Corps to seek a BiOp and ITS. In

13

cases where a BiOp relating to a new project has been found to be

14

inadequate, a court could enjoin the new project entirely. See,

15

e.g., Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1985). In this case,

16

plaintiffs do not seek to enjoin operation of the South Yuba dams

17

entirely. Without suggesting that such an injunction would have

18

been granted, the court notes that absent the stipulation by the

19

parties that allows the project to continue to operate pursuant to

20

the 2007 BiOp and ITS, the Corps might not be shielded from

21

liability for take resulting from the operation of Englebright and

22

Daguerre dams.

23

three

listed

species.

This

determination

triggered

The court analyzes plaintiffs’ proposed measures in turn.

24

////

25

////

26

////
16

an

1

1. Measures 1-6 Designed to Correct Upstream Migration Problems

2

(i)

3

steehlhead

4

operation

5

Daguerre fish ladders.

Measure

1:

Reduce

passage
plan

for

the

by

impediment

developing

optimum

and

operation

to

spring

Chinook

implementing
and

a

maintenance

and

written
of

the

6

Plaintiffs request that the Corps be required to install flow

7

meters to measure the volume of water passing through the Daguerre

8

fish ladders, and to use information collected from the meters and

9

from an existing VAKI device (a device that records the number of

10

fish using the ladders) to develop data and conclusions as to the

11

optimum flow for promoting fish passage. Plaintiffs request that

12

the Corps complete and implement a written operation plan by no

13

later than December 31, 2011.

14

The

July

recognized

17

impediments

18

mitigated and constitute a ‘stressor’ on the Chinook and steelhead,

19

but that the BiOp concluded nonetheless that the stressor posed no

20

jeopardy to the species. This conclusion was not supported by the

21

record:

23
24
25
26

through

the

BiOp’s

Specifically, the July Order noted that the BiOp states that four
migration

through

the

16

upstream

migration

in

discussion

to

upstream

deficiencies

15

22

of

Order

Daguerre

Daguerre

are

Dam.

not

In order to determine that the stressors will not cause a
decline in the reproduction, population, distribution, or
diversity, the BiOp must discuss (through some method) the
magnitude of the stressors’ impact, the populations’ ability
to tolerate this impact, and the reason why a decline will
not reduce the overall likelihood of survival or recovery. .
. Because the BiOp concludes that the project will continue
to impose stressors on listed species without explaining why
these stressors will not jeopardize the species, the BiOp’s
17

1
2

no-jeopardy conclusion is arbitrary and capricious.
July Order at 39.

3

While the July Order noted the defendants’ failure to support

4

its conclusion that the stressors imposed by Daguerre did not pose

5

jeopardy to the species, plaintiffs have submitted evidence showing

6

that the populations of the listed fish species are unstable or in

7

decline, and that against that backdrop, impassable fish ladders

8

at Daguerre do indeed jeopardize the survival and/or recovery of

9

the species.

10

In her declaration, Dr. Christine Swanson stated that the

11

extinction risk for spring chinook is increasing. The abundance,

12

productivity, spatial structure, and diversity for spring chinook

13

have all declined over the past six years. For example, in 2009,

14

a total of less than 2500 spring chinook returned to three streams

15

that support genetically distinct spring chinook. This was a 78%

16

decline from the average number of spring Chinook returning to

17

those streams each year from 1998 to 2005. 2010 Swanson Decl., ¶

18

13, 14, ECF No. 362. Impassable dams in the Sacramento-San Joaquin

19

watershed contribute to the decline in the viability of steelhead

20

and spring chinook because those two species depend on access to

21

freshwater

22

restrict access to spawning and rearing habitat.

rivers

for

spawning

and

rearing.

Impassable

dams

23

Defendants’ cited expert declaration does little to rebut this

24

evidence. Defendant argues that, although the conditions are not

25

optimal, spring Chinook and steelhead are able to use the fish

26

ladders at Daguerre to migrate upstream. However, defendants’
18

1

opposition and evidence submitted therewith suffer from the same

2

flaw as the BiOP: they fail to address the effects of Daguerre

3

given the already-unstable condition of the fish population at

4

issue.

5

highlights this point: “the level of adverse impact associated with

6

the operation of Daguerre Point Dam would not in and of itself

7

result in irreparable harm to the species during the interim

8

period.” Decl. Gary Sprague ¶ 13, ECF No. 372-2 (emphasis added).

9

Moreover, Mr. Sprague’s declaration assumes what it concludes: “for

10

the purposes of this declaration, I assumed that the Yuba River

11

populations of spring-run Chinook and steelhead will not experience

12

an increase in their risk of extinction during the interim period.”

13

Id. ¶ 9. This assumption is contrary to evidence submitted by Dr.

14

Swanson, which shows that spring chinook populations are in sharp

15

decline in the Sacramento-San Joaquin river basin.3 Additionally,

16

Mr. Cavallo notes that the assumption is unreasonable, given the

17

fluctuation in chinook and steelhead populations in the Yuba River

18

over the last ten years, and the likelihood of factors that would

19

cause a downward fluctuation in the species’ population levels of

20

viability characteristics to occur. Cavallo Reply Decl. ¶ 6. For

Mr.

Sprague’s

declaration,

perhaps

unintentionally,

21
22
23
24
25
26

3

Confusingly, defendants cite Ex. Q, at 2 of the Reedy
Declaration (ECF No. 365-2) in an attempt to counter Dr. Swanson’s
conclusions. Defendants state “by contrast to other rivers, 2010
numbers indicate increased passage on the Yuba–approximately 3000
fish through Daguerre in May-August 2010, the spring-run
immigration period.” However, the chart in Ex. Q, at 2 appears to
cover a period starting in September 2010 and ending in November,
and does not appear to the court to indicate anything about fish
passage through Daguerre.
19

1

example, oceanic up-swelling, drought, wildfires, and disease

2

outbreaks are factors that have some likelihood of occurring in the

3

interim period, and would increase the risk of extinction of the

4

species. Id.

5

Defendants’ argument about Measure 1's feasibility has more

6

merit.

Defendants

assert

that

drawing

conclusions

about

the

7

correlation between flow and passage would require assessment over

8

several spawning runs, and that it is not feasible to develop a new

9

flow plan prior to the issuance of the BiOp. Ellrott Decl., 6, ECF.

10

No. 321-2. Declaration testimony from plaintiffs’ witness, Brad

11

Cavallo, supports this assertion. Cavallo described a schedule in

12

which flow meter data gathered throughout 2011 would render a

13

conclusion, “no later than December 31, 2011." Cavallo Decl. 6,

14

ECF. No. 363-2. This is much later than the plaintiffs’ proposed

15

BiOp deadline, and shortly after the December 12, 2011 BiOp

16

completion date ordered by this court. Defendants argue that since

17

a completed study and plan for optimum fish passage is not likely

18

to be implemented prior to the release of the new BiOp, this remedy

19

would not prevent the harm that occurs in the interim period.

20

Plaintiffs argue that the data collected in the interim period

21

is still likely to prevent harm caused by the defendants’ ESA

22

violation. It may well be that the new BiOp and incidental take

23

statement are very likely to require that the Corps collect data

24

and implement a program for maintaining optimal flow levels over

25

the ladders in order to facilitate upstream migration. Absent the

26

interim measure proposed by plaintiff, data collection would not
20

1

begin until after completion of the new BiOp and incidental take

2

statement, and implementation of the program would not occur until

3

sufficient data has been collected. According to plaintiff, it

4

would take approximately one year to collect the data, complete a

5

study, and implement a plan. See Cavallo Decl. ¶ 18. Data collected

6

in the interim period will shorten the amount of time overall that

7

less-than-optimal

8

migration over the Daguerre fish ladders. As put by plaintiffs’

9

expert, even after “the new biological opinion is issued there

10

necessarily will be a substantial lag (perhaps years) before any

11

of

12

implemented and begin to have benefits for promoting survival and

13

recovery of spring Chinook and steelhead. Accordingly, in terms of

14

avoiding harms that could jeopardize these fishes’ survival and

15

recovery, it makes more sense to focus on the time between now and

16

when these new biological measures are likely to be implemented.”

17

Cavallo Reply Decl. ¶ 5.

the

remedial

flow

terms

levels

and

impede

conditions

chinook

it

and

specifies

steelhead

will

be

18

Nonetheless, the court declines to order an interim measure

19

that will provide no benefit to the listed species in the interim

20

period. Accordingly, plaintiffs request for Measure 1 is DENIED.

21

ii. Measure 2: Develop a written plan for systematic use of

22

moveable flash boards on Daguerre to manipulate the flows through

23

the fish ladder in order to optimize conditions.

24

Measure 2 is closely related to Measure 1. Flash boards can

25

be used to manipulate the flow levels in the fish ladders. Flash

26

boards can divert more water to flow over the ladders or can divert
21

1

water away from the ladders. Plaintiffs argue that no systematic

2

criteria is presently used to govern the use of flash boards to

3

optimize flow levels. With proper use, flash boards can contribute

4

to optimal conditions for fish passage through the Daguerre fish

5

ladders by “reducing the tendency of the spillway flow to confuse

6

the fish and preclude them from finding the fish ladders and. . .

7

increasing the head behind the dam, thereby forcing more water into

8

the

9

attraction to and passage through the ladders.” Cavallo Decl. ¶ 21

10

. When not managed properly, flash boards can cause “collection of

11

debris that traps fish attempting to migrate past the flash boards,

12

the impingement of juveniles on the flash boards, and the promotion

13

of predation.” Id. ¶ 22.

fish

ladders

during

dry

conditions

and

improving

fish

14

As discussed above, the July Order held that impediments to

15

upstream migration through Daguerre constitute a stressor on the

16

protected species, and that stressor was not properly accounted for

17

in the BiOp. Accordingly, Measure 2 is related to an arbitrary and

18

capricious

19

utilization of flash boards would reduce impediments to migration

20

through Daguerre.

conclusion

adopted

in

the

BiOp,

because

proper

21

Plaintiffs have submitted evidence, discussed under Measure

22

1 above, showing that the populations of spring chinook and

23

steelhead

24

population degredation because of impediments to upstream migration

25

to spawning and rearing habitat. Plaintiffs have also submitted an

26

expert declaration showing that the proper use of flash boards

are

on

the

decline

and

22

are

vulnerable

to

further

1

would ease the stressor caused by Daguerre, but that improper

2

placement of the flash boards increases the risk that the listed

3

species will get trapped in debris, impinged on the flash boards,

4

or preyed upon thus jeopardizing the survival and recovery of the

5

species.

6

Defendants proffer two arguments against implementation of

7

Measure 2. First, defendants argue that it is unnecessary because

8

fish passage at Daguerre is adequate. To support that proposition,

9

defendants cite a paragraph of the Sprague declaration which reads,

10

“improved management for fish passage will reduce adverse impacts,

11

and benefit federally listed Chinook and steelhead, but it is not

12

a measure that is likely to avoid irreparable harm to these species

13

during the interim period. Take associated with poor management of

14

the dam flash boards is likely to result through delays in upstream

15

migration,

16

juveniles.” Sprague Decl. ¶ 15. In short, the paragraph cited does

17

not stand for defendants’ proposition that fish passage is already

18

adequate. Rather, Mr. Sprague appears to agree with plaintiffs that

19

poor management of the flash boards results in take of the listed

20

species, and that the species would benefit from proper management.

21

Additionally, this court, in its July Order, rejected the BiOp’s

22

conclusion that fish passage through Daguerre was adequate, holding

23

that the BiOp did not take into account the compromised condition

24

of the listed species when reaching that conclusion.

25
26

and

Defendants’

potentially

second

through

argument

is

increase

that

this

predation

measure

on

is

impractical because the placement of the flash boards is controlled
23

1

by an entity outside of the Corps’ control. The declaration that

2

defendants submit to support this assertion, however, states that

3

the entity, Cordua Irrigation District (“CID”), installs the flash

4

boards pursuant to a license issued to it by the Corp. According

5

to the declaration, the license requires CID to coordinate its

6

activities with the Corps and other defendant agencies. Decl.

7

Grothe 8:25-9:1. The court is therefore unconvinced that Measure

8

2 is impractical for the reasons stated by the defendant.

9

It appears to the court that the parties’ experts are in

10

agreement that improved management of the flash boards at Daguerre

11

would benefit the listed species by improving the ability of the

12

fish

13

Currently, impediments to upstream migration threaten the survival

14

and recovery of the species. Accordingly, the court concludes that

15

better management of the flash boards is necessary to prevent

16

irreparable harm in the interim period.

to

migrate

upstream

to

spawning

and

rearing

habitats.

17

The court therefore ORDERS the Corps to develop a written plan

18

within six weeks of the issuance of this order that specifies how

19

the flash boards can be used to maximize fish passage at Daguerre,

20

what Yuba River flow conditions will prompt the placement or

21

removal of the flash board, where the flash boards will be placed

22

under different river flow scenarios, and any other pertinent

23

criteria related to operating the flash boards in the way that best

24

facilitates fish passage at Daguerre. Additionally, the plan shall

25

specify that the Corps will monitor the flash boards at least once

26

per week to make sure that they have not collected debris that
24

1

might contribute to juvenile fish mortality, and that the Corps

2

will continually adjust the plan for operation and maintenance of

3

flash

4

monitoring efforts.

5

iii. Measures 3 and 4: Monitoring and Removal of Debris in Daguerre

6

These measures are requested by plaintiff in order to prevent

7

debris from accumulating in the Daguerre fish ladders, causing low

8

flow levels in the ladders and acting as an impediment to fish

9

using the ladders. Measure 3 is to install “pressure transducers”

10

in the ladders, which would record the water pressure in the

11

ladders in order to alert the dam operator that debris in the

12

ladder was causing reduced water pressure. Measure 4 would require

13

the Corps to promptly clear debris blockages from the ladders.

boards

based

upon

the

information

generated

through

14

The BiOp acknowledged that upstream migration through Daguerre

15

is hampered when woody debris collects in the fish ladders, see

16

July Order at 21, and that due to debris and other impediments,

17

“upstream passage conditions at Daguerre Point Dam are . . .

18

considered inadequate for Chinook salmon and steelhead throughout

19

much of the year.” BiOp at 26, 31. The accumulation of debris in

20

the

21

migration

22

sufficiently account for in reaching its no-jeopardy conclusion.

23

Defendants argue that plaintiffs have no evidentiary basis for

24

the assertion that debris causes blockages for extended periods of

25

time, and that in the absence of such evidence, “there is no need

26

for inflexible debris removal timelines, which could require unsafe

Daguerre

ladders

that

the

is
July

one

of

Order

25

the

impediments

concluded

the

to

BiOp

upstream
did

not

1

entry into the river at high flows.” Def’s Remedy Brief 23.

2

Plaintiffs’ primary offered evidence is a Corps inspection log with

3

a September 16, 2009 entry that states “Both sides flowing well.

4

Dome debris at intake of the south side ladder. Appears to have

5

been placed by beavers, chew marks on sticks. Checked all warning

6

lights . . .” Ex. 1 to Weisselberg Decl., ECF No. 350-1. The same

7

inspection log states that on September 23, 2009, the inspector

8

observed, “both sides flowing well. Debris at intake ladder is

9

gone, probably removed by Fish & Game.” Id. Plaintiffs characterize

10

the chewed-upon sticks as a “beaver dam within the presence of the

11

fish ladder,” that the Corps “for some reason failed to clear.”

12

Pls.’ Remedy Brief at 17. While the court agrees that plaintiffs

13

have mischaracterized the evidence somewhat, the inspection log

14

does indicate that the Corps did not promptly remove debris that

15

was discovered during inspections. In addition, inspection logs

16

submitted by defendants show similar incidents of debris being

17

discovered during inspections, but not removed.4 Ex. 2 of Groethe

18

Decl., ECF No. 372-4.

19

Moreover, the declaration of defendants’ expert Brian J.

20

Ellrott provides that: “What is necessary is that the ladders are

21

maintained clear of surface and subsurface debris. . . Frequent

22

inspections of the ladders for surface and sub-surface debris and

23
24
25
26

4

Plaintiffs, in their reply, also state that “the recent
inspection conducted by plaintiffs” shows that the Corps has failed
to actually clear debris discovered by inspectors, but plaintiffs
do not cite any evidence of those inspections. See Pls.’ Reply
Brief at 10.
26

1

the prompt removal of any ladder blockages would be beneficial to

2

spring-run and steelhead during the interim period. . . Consistent

3

with the operations stated in the 2007 biological opinion, any

4

removal of small debris loads should be done immediately,” and

5

large debris should be removed as soon as equipment can be

6

mobilized to the site. Ellrott Decl. at 5-6.

7

Despite their own expert’s testimony, defendants maintain that

8

the debris in the ladders is not a problem so long as there is

9

sufficient flow through the ladders. Defs.’ Remedy Brief 23.

10

However, defendants’ submitted expert report calls for immediate

11

removal of debris, flow levels notwithstanding.

12

In light of the BiOp’s finding that migration is hampered by

13

debris in the ladders, plaintiffs’ submitted evidence showing that

14

debris was discovered but not removed by the Corps on several

15

occasions,

16

maintaining the ladders clear of surface and subsurface debris is

17

necessary, the court finds that Measures 3 and 4 are warranted,

18

with two modifications.

and

defendants’

expert’s

testimony

stating

that

19

The first modification is in response to defendants’ assertion

20

that installing pressure transducers is impracticable because there

21

is no hard-wired electrical source on top of the dam. Perhaps

22

anticipating this argument, plaintiffs have requested, in the

23

alternative, that the Corps be required to inspect the ladders for

24

surface and subsurface debris weekly during routine flows, and

25

daily during flows of 4,200 cfs or greater. The court finds the

26

defendants’ impracticability argument convincing, and that manual
27

1

inspections of debris in the Daguerre fish ladders is a prudent

2

alternative.

3

The second modification of plaintiffs’ proposed measure is

4

that the court declines to adopt strict time limits on removal of

5

the debris, and leaves that matter, which implicates the safety of

6

Corps employees, to the discretion of the Corps, so long as the

7

debris is removed as promptly as feasible, given any safety

8

concerns.

9

Accordingly, the court orders as follows: the Corps SHALL

10

conduct weekly manual inspections of the ladders for surface and

11

subsurface debris during routine flows. During flows of 4,200 cfs

12

or greater, the Corps SHALL conduct daily manual inspections. Upon

13

discovering debris in the ladders, the Corps SHALL remove it within

14

twelve (12) hours, even if the Corps determines that flow levels

15

are adequate for fish passage. If conditions do not allow for safe

16

immediate removal of the debris, the Corps SHALL remove the debris

17

within twelve (12) hours after flows have returned to safe levels.

18

iv. Measure 5: Adoption of a revised sediment management plan to

19

improve flows to the south fish ladder.

20

The July Order identifies the formation of a gravel sediment

21

bar upstream from Daguerre as a barrier to upstream migration.

22

Chinook and steelhead

23

through which to migrate once they pass upstream through the

24

Daguerre fish ladders. Sediment buildup can also block the flow of

25

water that attracts fish to the ladders.

26

Measure 5 is intended to address that impediment. Plaintiffs seek

require an adequately spacious channel

28

July Order 22:2-6.

1

an order that would require the Corps to adopt a revised plan to

2

manage the sediment, including inspection of the area twice per

3

year, and after all major winter storm events and to dredge the

4

area as necessary. Measure 5 also calls for the Corps to adopt a

5

plan to re-engineer the south bank of the Yuba River. Finally,

6

Measure 5 would require the Corps to place back into the Yuba River

7

any gravel-containing sediments that it dredges in locations to

8

ensure maximum benefits to the River’s substrate.

9

a. Inspection and Dredging

10

Plaintiffs contend that this measure is necessary because the

11

Corps’ current plan only requires annual inspections, and the

12

channel could be too shallow, or even blocked, for a considerable

13

time in between the inspections. Plaintiffs also argue that the

14

“plan lacks provisions to ensure that the dredging is conducted to

15

minimize impacts on the listed species.” Pls’ Remedy Brief 18.

16

Currently, the sediment management plan required by the operative

17

BiOp calls for the Corps to inspect the channel upstream from

18

Daguerre in June, and to dredge the channel if necessary. Id. The

19

channel is inadequate for passage if it is less than three feet

20

deep and thirty feet wide. 2010 Cavallo Decl. ¶ 13.

21

Defendants argue that this measure is redundant, since a

22

sediment management plan is in place, and the Corps has dredged the

23

area in August 2009 and August 2010. Defendants’ expert Mr. Sprague

24

state that, given the Corps’ plan to address sediment management

25

in a manner to provide fish passage above Daguerre Point, he does

26

“not expect impacts associated with sediment management to rise to
29

1

the level of irreparable harm to the Chinook and steelhead stocks

2

in the Yuba River during the interim period.” Sprague Decl. ¶ 21.

3

It appears that at least one of defendants’ experts is in

4

agreement with plaintiff that inspection of the channel after a

5

“high flow event,” and dredging to restore clear passage channels

6

is necessary. Defendants’ expert Ellrott stated “inspecting and

7

keeping the river channels immediately upstream of DPD [Daguerre

8

Point Dam] sufficiently deep to allow unimpeded passage for fish

9

to exit the ladders is necessary in the longer term and could

10

benefit steelhead during the interim period if a high flow event

11

this winter clogged the river channels with sediment, necessitating

12

the Corps to restore clear passage channels by implementing a

13

dredging operation as soon as flows recede enough to do so.”

14

Ellrott Decl. VI. 8 (emphasis added). A high flow event is defined

15

as a storm “that generates Yuba River flow exceeding 20,000 cubic

16

feet per second as measured at the Marysville flow gauge or flow

17

that is sufficient to move sediment loads into the bed of the

18

river. Cavallo Decl. ¶ 29.

19

The court finds that inspections following high flow events

20

as defined above, in addition to the annual inspections required

21

by the current sediment management plan, are necessary to prevent

22

irreparable harm to the listed species. Accordingly, the Corps

23

SHALL inspect the channel immediately following a high flow event,

24

as defined above. If the inspections reveal significant sediment

25

buildup that risks impairing fish passage, the Corps SHALL dredge

26

the channel in a manner that minimizes adverse impact risks to the
30

1

fish. This order does not obviate the Corps’ inspection and

2

dredging obligations under the existing sediment management plan

3

pursuant to the 2007 BiOp and ITS.

4

b. Plan for Re-engineering the South Bank of the River

5

Plaintiff argues that a more fundamental problem with upstream

6

sediment is that the river has shifted northward in the area near

7

Daguerre, causing the area upstream of the south fish ladder to be

8

perpetually shallow and inadequate for passage and attraction. To

9

remedy this problem, plaintiffs seek an order requiring defendants

10

to create a plan to re-engineer the river channel upstream of

11

Daguerre to improve flows through the south ladder.

12

The court’s July Order makes no mention of this issue in its

13

discussion of the deficiencies of the BiOp. Therefore, there is no

14

finding of liability on the part of the Corps for failing to

15

address, in the BiOp, the impact of any morphological changes in

16

the river near Daguerre. Moreover, although plaintiffs’ expert

17

states that flows to the south ladder are perpetually low due to

18

these changes and that a “fundamental change to the geomorphology

19

of the river” would improve flows to the south ladder he does not

20

explain whether passage through only the north ladder at Daguerre

21

is inadequate in the interim period. See Cavallo Decl. ¶ 30.

22

Accordingly, the court declines to adopt this component of Measure

23

5.

24

c. Placing Dredged Gravel back into the Yuba River

25

Gravel substrate provides spawning and rearing habitat for

26

salmonids, but the quality of gravel substrate is diminished in the
31

1

Yuba River. Cavallo Decl. ¶ 32. Plaintiffs request that the Corps

2

be required to place back into the river, or on the river’s bank

3

any gravel-containing sediments that it dredges from the river.

4

Defendants make no argument, in their brief or in their submitted

5

expert reports, against a requirement that they be required to

6

place dredged gravel-containing sediment back into the river or on

7

the river’s bank.

8

The parties’ briefing on this component of Measure 5 is non-

9

existent. Mr. Cavallo is the only expert to address it, he does not

10

expressly state that it is necessary to prevent irreparable harm.

11

Instead he states only that absent this component, the problem of

12

diminished gravel substrate quality would be exacerbated. Moreover

13

the July Order did not discuss the diminished quality of gravel

14

substrate around Daguerre as a stressor that was inadequately

15

addressed in the BiOp. To the contrary, the order stated that while

16

“Englebright limits recruitment of gravel and large woody material

17

[required for salmonid spawing]. . . the BiOp does not indicate

18

that Daguerre separately interferes with gravel, and plaintiffs do

19

not contend that this is the case.” July Order 28-29. Although

20

defendants

did

21

opposition

to

22

sediment placed back into the river or on its banks, the court

23

concludes that plaintiff did not carry its burden of showing that

24

irreparable harm will occur in the absence of an injunction

25

requiring this component.

26

////

not

provide

plaintiffs’

any

statements

request

32

to

have

or

arguments

in

gravel-containing

1

vi. Measure 6: Installation of locked grates to prevent poaching

2

from the Daguerre fish ladders.

3

Defendants’ failure to discuss in the BiOp the problem of

4

poaching was one of the bases upon which this court concluded that

5

the BiOp was arbitrary and capricious. July Order 56. The court

6

held

7

discountable.” Id. To prevent poaching, as well as to prevent fish

8

from jumping from the ladders and perishing on dry land, plaintiffs

9

request an order requiring the installation of locked grates over

10

that

“poaching

is

not

insignificant

.

.

.

and

not

the Daguerre ladders.

11

In their Final Remedy Brief, plaintiffs do not assert or

12

provide any evidence about the quantity of poaching or its impact

13

on the survival of the species. The evidence that plaintiffs offer

14

to support their request for Measure 6 pertains to fish jumping

15

from the ladders onto dry land, and not to poaching. For example,

16

Mr. Cavallo stated that six chinook were found on dry land near the

17

south ladder at Daguerre in September and October 2010. Cavallo

18

Decl. ¶ 33. Mr. Reedy’s declaration and attached exhibits describe

19

chinook carcasses found on dry land near the south ladder, which

20

Mr. Reedy states are likely to be those spring Chinook having leapt

21

from

22

purportedly the problem underlying the need for locked gates over

23

the ladders, plaintiffs do not offer any evidence that poaching is

24

a threat to the recovery or survival of the species. Despite this

25

lack of evidence, plaintiffs argue “the Federal Defendants have

26

done nothing to counter the evidence presented by plaintiffs.”

the

ladder.

Reedy

Decl.

¶

33

36-37.

Although

poaching

is

1

Reply Brief 12.

2

Plaintiffs’ lack of evidence is understandable, since poaching

3

necessarily takes place unobserved. Although it is plaintiffs’

4

burden to present evidence to the court that irreparable harm is

5

likely to occur absent this measure, the court finds that in this

6

case, the July Order, combined with statements in the 2007 BiOp and

7

statements by defendants’ experts lead to a conclusion that locked

8

grates are necessary to prevent irreparable harm due to poaching.

9

In the July Order, the court noted that poaching was an ongoing

10

problem at Daguerre in 1998 and 2001. July Order 55. In 1998, the

11

Spring Run Chinook Status report stated that poaching was an

12

ongoing problem at Daguerre. In 2001, the Corps determined that

13

poaching of salmon from the ladders at Daguerre was “a persistent

14

problem.” Id. Without explanation as to how the problem of poaching

15

was diminished from 2001, the 2007 BiOp failed to explain the

16

impact of poaching on the survival and recovery of the species.

17

Statements by defendants’ expert indicate that the problem of

18

poaching has not been diminished, potentially causing irreparable

19

harm to the species. In his declaration, Mr. Sprague stated:

20

“Poaching, if in large numbers, does have the potential to cause

21

irreparable harm to a species because listed stocks by the very

22

nature of being listed are already at low abundance. Poaching can

23

potentially significantly reduce a population’s abundance.” Sprague

24

Decl. ¶ 23. Abundance (along with productivity, spatial structure,

25

and genetic diversity) is one of the factors used to determine a

26

species’ viability.
34

1

Given Mr. Sprague’s acknowledgment that poaching can cause

2

irreparable harm to a species, coupled with the July Order’s

3

conclusion based on the evidence that poaching is likely to

4

continue, July Order at 56, the court concludes that poaching from

5

the Daguerre fish ladders is likely to cause irreparable harm

6

absent an injunctive measure to prevent poaching.

7

Defendants argue that the installation of locked grates may

8

cause

injury

to

the

fish

due to

sharp

edges

on

the

grates

9

themselves. Defs.’ Remedy Brief 25; Grothe Decl. 11. In response,

10

plaintiffs offer expert testimony stating “metal grates currently

11

exist over the upper bays of both ladders where fish counting

12

equipment is located and I am aware of no evidence that these

13

grates have harmed fish.” Reedy Decl. ¶ 26. Photographs attached

14

to Mr. Reedy’s declaration indicate that there are no sharp exposed

15

edges. Ex. 9 to Reedy Decl. Accordingly, the court concludes that

16

installation of locked metal grates over the Daguerre fish ladders

17

is necessary to prevent irreparable harm to the survival and

18

recovery of the species during the interim period.5 Defendants are

19

ORDERED to install locking metal grates over the Daguerre fish

20

ladders within six (6) weeks of the issuance of this order.

21
22
23
24
25
26

5

Although the court declines plaintiffs’ invitation to
speculate as to whether it is a worse injury for an individual
salmon to be cut by sharp metal edges or die on dry land, Pls.’
Reply Brief 12, the court will note that in this case the court is
most concerned with the survival and recovery of the species, and
not the comfort of any individual salmon moving its way up the
ladder. Put another way, “logic clearly dictates that the needs of
the many outweigh the needs of the. . . one.” STAR TREK II; THE WRATH
OF KHAN (Paramount Pictures 1982).
35

1

2. Measures to correct loss of genetic diversity, reproductive

2

success, and suitable habitat of the listed species.

3

i. Measure 7: Study and develop a plan to promote secure physical

4

segregation of spring Chinook from fall Chinook, to prevent cross-

5

breeding.

6

Measure 7 is intended to preserve the genetic diversity of

7

spring Chinook. Genetic diversity is one of the four factors that

8

contribute to a species’ survival and recovery. The July Order

9

noted that the defendants’ failure to consider the impact of

10

hatcheries rendered the BiOp arbitrary and capricious, and that

11

the BiOp acknowledged that interbreeding between spring and fall

12

run Chinook was a threat to the survival or recovery of the spring

13

Chinook. July Order 49, 50. According to plaintiffs, the genetic

14

diversity

15

Englebright Dam forces fall and spring Chinook to co-inhabit the

16

same area, placing them in competition with each other and reducing

17

spring

18

diversity is also threatened by hatchery-produced fish in the Yuba

19

River, which create risk of interbreeding between hatchery-produced

20

fish and spring chinook. Cavallo Decl. 11; see also Reedy Decl.,

21

Ex. H. To prevent this harm, plaintiffs’ request an order requiring

22

defendants to create a plan for a temporary segregation weir to

23

segregate spring- from fall-run chinook. Plaintiffs request that

24

the plan also include measures to counter the influence of hatchery

25

fish on the genetic diversity of spring chinook.

26

of

spring

chinook’s

Chinook

spawning

is

currently

success.

Spring

threatened

chinook’s

because

genetic

In support of their request, plaintiffs’ expert declarations
36

1

and

exhibits

2

appropriate spawning habitat can limit spring-run Chinook salmon

3

spawning success.” Reedy Decl. Ex. H. Englebright Dam currently

4

limits the spawning habitat accessible to each species, forcing the

5

overlap that threatens spring-chinook spawning success. Absent the

6

Englebright Dam, natural segregation of the two species would

7

occur. Id. Placement of an artificial weir to separate species of

8

salmon

9

streams. Id.

has

stating

been

used

“superimposition

successfully

on

and

other

competition

Sacramento

for

River

10

Defendants argue that placement of a weir, “without adequate

11

study has the potential to result in take of a listed species.”

12

Defs.’ Oppo. 26:4. The measure that plaintiffs request, however,

13

is for the Corps to study and develop a plan to place the weir.

14

Plaintiffs do not request placement of a weir without adequate

15

study. Additionally, defendants state that the Corps lacks the

16

statutory authority to implement the requested measure. Defendant

17

cites the August 6, 2010 declaration of Douglas Grothe, a Park

18

Manager, who in fact states merely that the declarant is “not

19

certain” whether the Corps has authority to implement the measure.

20

Additionally, defendants’ expert, Mr. Ellrott, states: “In

21

order for a spring-run population to persist in the Yuba River,

22

reproductive isolation from fall-run Chinook salmon is necessary.”

23

Ellrott Decl. 9, ECF No. 321-2. Mr. Ellrott also states that, given

24

current conditions on the Yuba River, “a segregation weir and

25

restoring access to habitats upstream of Englebright Dam would

26

likely be necessary in order to begin to restore reproductive
37

1

isolation between fall-run and spring-run in the Yuba River.” Id.

2

Defendants have not rebutted plaintiffs’ argument, supported

3

by this court’s July Order and the BiOp, that interbreeding poses

4

a threat to the survival of the species, and that a plan to

5

segregate

6

irreparable harm. Accordingly, defendants are ORDERED to study and

7

develop a plan for measures that will promote and secure physical

8

segregation/separation of spring Chinook from fall run Chinook in

9

the Yuba River, allowing the former to spawn without competition

10

from or cross-breeding with the fall run Chinook. The plan shall

11

propose a seasonal segregation weir within the Yuba River below

12

Englebright. The plan shall further propose measures for impeding

13

the migration of stray hatchery fish into the Yuba River to

14

locations where hatchery fish could compete with spring Chinook

15

spawners and/or interbreed with spring Chinook. The Corps SHALL

16

provide

17

Department of Fish and Game “CDFG”), NMFS, and to plaintiffs within

18

eight (8) weeks of the issuance of this order. The Corps shall then

19

implement the plan if and as approved by CDFG and NMFS.

20

ii.

21

augmentation plan to create a new spawning habitat for spring

22

Chinook and steelhead.

spring

its

Measure

plan

8:

Chinook

for

is

review

Develop

and

required

and

in

comment

implement

order

to

a

to

the

prevent

California

long-term

gravel

23

The July Order noted that Englebright dam limits the amount

24

of gravel that can accumulate downstream from it. Salmonids require

25

clean gravel beds in which to spawn, as well as woody material for

26

protection.

Recognizing

Englebright
38

interferes

with

gravel

1

accumulation, the Corps adopted a plan to inject additional gravel

2

into the river. The 2007 BiOp required implementation of a gravel

3

augmentation plan to restore spawning habitat below Englebright by

4

November 2010. Reedy Decl. 4. This court noted that the Corps’

5

“reliance on the proposed gravel injection program was reasonable”

6

even though the program had not yet commenced at the time the BiOp

7

was issued, since at the time the BiOp was issued, the plan was

8

reasonably certain to occur. July Order 28 n. 14. Since the

9

adoption of the BiOp, the gravel augmentation implementation plan

10

has indeed commenced. In November 2007, the Corps injected a small

11

amount of gravel as a pilot program. The purpose of the pilot

12

program was to inject a small amount of gravel during a low-flow

13

period, and then waiting to see where the gravel moved during the

14

high-flow period. In September 2010, the Corps issued a Gravel

15

Augmentation Implementation Plan (“GAIP”), which the Corps intended

16

to satisfy the requirements of the 2007 BiOp. The GAIP recommends

17

an adaptive management approach, which involves monitoring the

18

movement of injected gravel, and placing additional gravel based

19

on results of the monitoring. Grothe Decl. 12. In November, 2010,

20

the Corps began placing gravel into the Englebright Dam Reach.

21

Pursuant to the stipulation between the parties, the 2007 BiOp and

22

Incidental Take Statement, including the requirement that the Corps

23

implement a gravel augmentation plan, is currently in effect.

24

Plaintiffs argue that the Corps’ placement of gravel around

25

Englebright, pursuant to the GAIP, has been inadequate to offset

26

Englebright’s adverse impacts on spawning habitat. Pls.’ Remedy
39

1

Brief 23. Plaintiffs provide expert opinions stating that the

2

amount of gravel to be injected is inadequate, and that the GAIP

3

project

4

Englebright cuts off gravel supply. In Mr. Reedy’s opinion, the

5

GAIP is inadequate “because it is based on an incorrect conclusion

6

that the only area the Corps’ gravel augmentation project should

7

encompass is the 300-700 foot section between the Narrows I pool

8

to the top of the rapid downstream of the gaging station.” The GAIP

9

does not require augmentation in the other nearby sections of the

10

river affected by Englebright. Reedy Decl. 5. Mr. Reedy cites a

11

Final Habitat Expansion Plan (“HEP”), prepared by the California

12

Department of Water Resources, which calls for gravel augmentation

13

for a one-mile area starting about one-half mile downstream from

14

Englebright, continuing to one and a half miles downstream from

15

Englebright. Reedy Decl. 7; Reedy Decl. EX. D at 66.

area

is

too

small,

given

the

large

area

for

which

16

Defendants counter that the GAIP is adequate. According to

17

defendants, the GAIP is a long-term plan, developed by a leader in

18

the field of gravel augmentation, and based on exhaustive modeling

19

of various methods of gravel placements. The GAIP calls for

20

replacement of 15,000 tons of gravel to the area, beginning with

21

an injection of 5,000 tons that commenced in November 2010. The

22

GAIP’s incremental approach “yields a more resilient and time-

23

tested outcome,” according to the GAIP. Defs.’ Remedy Brief 27.

24

Defendants argue that Mr. Reedy mischaracterizes the scope of the

25

GAIP. The GAIP itself states that its goal is for “the gravel

26

deficit for the whole [Englebright Dam] reach [to] be erased.” GAIP
40

1

at 73, Reedy Decl. Ex. D. The Englebright Dam Reach is the canyon

2

between Englebright Dam and the Yuba River’s confluence with Deer

3

Creek. This is the same area covered by the recommendations in the

4

HEP, cited by plaintiffs’ expert Mr. Reedy.

5

The court concludes that plaintiffs have not met their burden

6

of showing that irreparable injury is likely to occur in the

7

absence of an order that includes plaintiffs’ proposed Measure 8.

8

Although Mr. Reedy argues persuasively that requiring the measures

9

described in the Habitat Expansion Plan would benefit spring

10

chinook by restoring gravel spawning habitat to the area around

11

Englebright, the court is not convinced that any interim measure

12

is required, given the Corps’ existing obligation to comply with

13

the 2007 BiOp and the GAIP. The court notes that the July Order

14

specifically found that the Corps’ reliance, when preparing the

15

BiOp, on a future plan to adopt a gravel augmentation plan was

16

reasonable, since the plan “reasonably certain to occur.” July

17

Order 28 n. 14. The court specifically found that it was not

18

arbitrary or capricious for the BiOp to rely on the proposed plan.

19

The court is disinclined to order an interim measure that is

20

unrelated to a specific deficiency found in the BiOp. Defendants

21

have shown that they continue to comply with the GAIP by injecting

22

gravel into the area and monitoring its movement downstream.

23

Accordingly, plaintiffs’ request for interim Measure 8 is

24

DENIED.

25

////

26

////
41

1

iii. Measure 9: Develop a plan for riparian planting and wood

2

structure.

3

Woody debris is a necessary element of spawning habitat for

4

salmonids, as it provides a cover from predators and a refuge from

5

fast-moving water. Englebright Dam traps woody debris, preventing

6

it from flowing downstream. The July Order recognized the lack of

7

woody debris as a stressor on the listed species. July Order 28.

8

Measure 9 seeks to address this problem by requiring the Corps to

9

develop a final plan and implement a project to plant native

10

riparian vegetation on a parcel of land on the lower Yuba River.

11

The plan to be implemented is identified as “Project 10" of a

12

“Rehabilitation Concepts for the Parks Bar to Hammon Bar Reach of

13

the Lower Yuba River,” prepared in November 2010. Ex. R of Reedy

14

Decl.

15

Plaintiffs’ proposed Measure 9 is similar to a measure called

16

for in the ITS issued pursuant to the 2007 BiOp, which is currently

17

in effect. Defendants argue that this makes the measure redundant

18

because a wood installation plan is scheduled to be implemented in

19

November 2011. Plaintiffs’ final remedy brief calls the loss of

20

woody debris an “impact,” but does not explain or argue that it is

21

the cause of irreparable harm. Nor does the declaration of Brad

22

Cavallo,

23

riparian vegetation and large wood . . . would be very beneficial

24

to spring Chinook and steelhead.” Decl. Cavallo 16:2-3. Plaintiffs

25

have not shown that an irreparable injury will occur in the absence

26

of Measure 9. The court, therefore, declines to adopt it.

which

states

that

“the

42

increase

presence

of

native

1

III. Conclusion

2

For the foregoing reasons, the court ORDERS as follows:

3

[1] Plaintiffs’ Motion for Final Remedies, ECF No.

4

363, is GRANTED in part and DENIED in part.

5

[2] Corps SHALL develop a written plan within six

6

weeks of the issuance of this order that specifies how

7

the flash boards can be used to maximize fish passage

8

at Daguerre, what Yuba River flow conditions will

9

prompt the placement or removal of the flash boards,

10

where the flash boards will be placed under different

11

river flow scenarios, and any other pertinent criteria

12

related to operating the flash boards in the way that

13

best facilitates fish passage at Daguerre.

14

Additionally, the plan shall specify that the Corps

15

will monitor the flash boards at least once per week

16

to make sure that they have not collected debris that

17

might contribute to juvenile fish mortality, and that

18

the Corps will continually adjust the plan for

19

operation and maintenance of flash boards based upon

20

the information generated through monitoring efforts.

21

[3] The Corps SHALL conduct weekly manual inspections

22

the Daguerre ladders for surface and subsurface debris

23

weekly during routine flows. During flows of 4,200 cfs

24

or greater, the Corps SHALL conduct daily manual

25

inspections. Upon discovering debris in the ladders,

26

the Corps SHALL remove it within twelve (12) hours,
43

1

even if the Corps determines that flow levels are

2

adequate for fish passage. If conditions do not allow

3

for safe immediate removal of the debris, the Corps

4

SHALL remove the debris within twelve (12) hours after

5

flows have returned to safe levels.

6

[4] The Corps SHALL inspect the channel upstream from

7

Daguerre immediately following a high flow event, as

8

defined above. If the inspections reveal significant

9

sediment buildup that risks impairing fish passage,

10

the Corps SHALL dredge the channel in a manner that

11

minimizes adverse impact risks to the fish. This order

12

does not obviate the Corps’ inspection and dredging

13

obligations under the existing sediment management

14

plan pursuant to the 2007 BiOp and ITS.

15

[5] The Corps SHALL install locking metal grates over

16

the Daguerre fish ladders within six (6) weeks of the

17

issuance of this order.

18

[6] The Corps SHALL study and develop a plan for

19

measures that will promote and secure physical

20

segregation/separation of spring Chinook from fall run

21

Chinook in the Yuba River, allowing the former to

22

spawn without competition from or cross-breeding with

23

the fall run Chinook. The plan shall propose a

24

seasonal segregation weir within the Yuba River below

25

Englebright. The plan shall further propose measures

26

for impeding the migration of stray hatchery fish into
44

1

the Yuba River to locations where hatchery fish could

2

compete with spring Chinook spawners and/or interbreed

3

with spring Chinook. The Corps SHALL provide its plan

4

for review and comment to the California Department of

5

Fish and Game “CDFG”), NMFS, and to plaintiffs within

6

eight (6) weeks of the issuance of this order. The

7

Corps shall then implement the plan if and as approved

8

by DDFG and NMFS.

9

[8] Defendants MAY move for relief from judgment upon

10

a showing that they have complied with this court’s

11

remand order, ECF No. 398.

12

[9] Defendants’ Motion to Strike and/or Exclude

13

Evidence, ECF No. 380, is DENIED.

14

[10] American Rivers, Inc.’s unopposed Motion for

15

Leave to File an Amicus Brief, ECF No. 392, is

16

GRANTED.

17

IT IS SO ORDERED.

18

DATED: July 25, 2011.

19
20
21
22
23
24
25
26
45