Defenders of Wildlife et al v. United States Army Corps of Engineers et al
ORDER Regarding Plaintiffs' Motion for Preliminary Injunction: IT IS ORDERED: Plaintiffs' 122 Motion for Preliminary Injunction is GRANTED. Plaintiffs and Federal Defendants shall file a mutually agreed upon scheduling order that sets dea dlines for Federal Defendants' lodging of the administrative record and both parties' summary judgment briefing within 14 days of the filing of this Order. The Court will file a scheduling order if the parties cannot come to an agreement within 14 days. The Court will set a hearing for summary judgment oral arguments after the parties file their proposed scheduling order. SEE ORDER FOR FULL DETAILS. Signed by Judge Brian Morris on 7/5/2017. (SLR)
Case 4:15-cv-00014-BMM Document 155 Filed 07/05/17 Page 1 of 31
IN THE UNITED STATES DISTRICT COURliell\, u.s DistrictCourt
FOR THE DISTRICT 0.1' MONTANA
GREAT FALLS DIVISION
DEFENDERS OF WILDLIFE, and
NATURAL RESOURCE DEFENSE
PLAINTIFFS' MOTION FOR
tJNITED STATES ARMY CORPS OF
ENGINEERS; UNITED STATES
BUREAU OF RECLAMATIOK; and
tTNITED STATES FISH AND
IRRIGATION PROJECT BOARD OF
CONTROL, SAVAGE IRRIGATION
DISTRICT, and INTAKE
The United States Fish and Wildlife Service (FWS) listed pallid sturgeon as
endangered in 1990. 55 Fed. Reg. 36,641. The Missouri River between the Fort
Peck Dam and Lake Sakakawea contains the largest wild pallid sturgeon
population. Fewer than 125 wild pallid sturgeons remain and the population
Case 4:15-cv-00014-BMM Document 155 Filed 07/05/17 Page 2 of 31
appears in decline. (BOR 560; BOR 2216). The presence of the Fork Peck Dam on
the Missouri River and the Intake Dam on the Yellowstone River account, in large
part, for this decline. (BOR 567-572). The Intake Dam sits approximately 70 miles
upriver from the confluence of the Yellowstone River and the Missouri River.
These two balTiers prevent the pallid sturgeon from swimming far enough upriver
to spawn successfully.
Two decades of testing and analysis apparently have persuaded the Federal
Defendants that no amount of tinkering with the operation can overcome the
insurmountable barrier to pallid sturgeon spawning posed by the Fort Peck Dam.
As a result, the Federal Defendants have turned all of their efforts required by the
Endangered Species Act (HESA") to the Intake Dam and the farmers cUlTently
served by the irrigation water provided by it.
After spawning, the pallid sturgeon larvae drift while they are developing.
(BOR 568). The drift ranges from 152 to 329 miles. (BOR 568). Pallid sturgeons
suffer very low survival rates in a lake environment, such as Lake Sakakawea, due
to lower oxygen levels. (BOR 2213). Larvae hatched below the Intake Dam lack
sufficient "drift distance" to develop before they reach Lake Sakakawea. They
perish as a result. (BOR 2212-13). Ifpallid sturgeon could spawn upstream of the
Intake Dam, the larvae would have the opportunity to develop sufficiently before
they reached Lake Sakakawea. This extra development time likely would render
Case 4:15-cv-00014-BMM Document 155 Filed 07/05/17 Page 3 of 31
the pallid sturgeon able to swim to remain in the more hospitable river
A wood structure topped with rocks along the crest forms the Intake Dam.
The existing weir requires nearly annual replacement of rocks on the crest to hold
back sufficient water to service irrigation needs. The United States Bureau of
Reclamation ("Bureau") and the United States Army Corps of Engineers ("the
Corps") intend to spend $59 million to replace the existing wood and rock weir at
Intake Dam with a concrete weir in order to ensure continued irrigation water to
the 56,800 acres currently serviced by Intake Dam. (The "Project"). (BOR 2 J58;
Doc. 30 at 3).
Five pallid sturgeons successfully used a natural side channel around the
existing weir in 2014 during unusually high water. (BOR 2212). Federal
Defendants decided that a new bypass channel, which would have sufficient flow
all the time, provided the best option to allow pallid sturgeon to navigate around
the weir. Federal Defendants issued an Environmental Assessment and Finding of
No Significant Impact in 2015. (BOR 2053-2636).
Plaintiff Defenders of Wildlife filed the Complaint to initiate this action in
February of2015. (Doc. L) Plaintiff filed a Motion for Preliminary Injunction on
July 28,2015, to enjoin Federal Defendant agencies ("Federal Defendants") from
initiating construction on the project and ordering Federal Defendants to complete
Case 4:15-cv-00014-BMM Document 155 Filed 07/05/17 Page 4 of 31
an Environmental Impact Statement (ElS). (Doc. 53.) The Court conducted a
hearing on August 27, 2015. (Doc. 71.)
The Court granted Plaintiffs Motion for Preliminary Injunction on
September 4,2015. (Doc. 73.) The Court determined that Plaintiffs claim
warranted a preliminary injunction on the basis that Federal Defendants had failed
to complete a full EIS and the attendant analysis. The Court specifically
emphasized the need for Federal Defendants to analyze recovery of pallid sturgeon
and whether the project would prevent recovery. The Court also clearly identified
the need for Federal Defendants to analyze whether the project would be
successful in providing passage past the Intake Dam for pallid sturgeon.
Federal Defendants completed an ElS on October 21, 2016, and issued a
Record of Decision ("ROD") on December 2,2016, in response to the Court's
order. (Doc. 101 at 9.) Federal Defendants filed a Motion for Partial Dismissal and
to Dissolve the Injunction on February 1,2017. (Doc. 100.) Federal Defendants
sought to dismiss Count 6 of Plaintiffs Third Supplemental and Amended
Complaint. (Doc. tol at 9-13.) Federal Defendants also sought to dissolve the
Court's prior injunction. Id. at 13-22. The Court held a hearing on the Motions for
Partial Dismissal and to Dissolve the Injunction on April 5, 2017, and subsequently
issued an Order granting Federal Defendants' motion and granting Plaintiffs
Case 4:15-cv-00014-BMM Document 155 Filed 07/05/17 Page 5 of 31
Motion for Leave to file a Fourth Supplemental and Amended Complaint. (Doc.
The Court reasoned that Federal Defendants' new National Environmental
Policy Act ("NEPA") decisional documents-the 2016 EIS and the 2016 ROD
sufficiently corrected the Federal Defendants' NEPA violations at the heart of the
original preliminary injunction. (Doc. 118.) PlaintitIfiled a Fourth Supplemental
and Amended Complaint that incorporated challenges to Federal Defendants' 2016
NEPA and Endangered Species Act ("ESA") documents on April 20, 2017. (Doc.
Plaintiff brings its current Motion for Preliminary Injunction on the basis of
claims 11-14 of the Fourth Supplemental and Amended Complaint. (Doc. 122.)
Plaintiff seek a preliminary injunction that would halt the construction related to
the Project and preserve the status quo until the parties can brief dispositive
motions in an expedited schedule. (Doc. 122.) Plaintiffs Motion for Preliminary
Injunction proves the more complex of the two pending motions. The majority of
this Order will focus on the request for a preliminary injunction.
A plaintiff must demonstrate "that [it] is likely to succeed on the merits, that
[it] is likely to suffer irreparable harm in the absence of preliminary relief, that the
balance of equities tips in [its] favor, and that an injunction is in the public
Case 4:15-cv-00014-BMM Document 155 Filed 07/05/17 Page 6 of 31
interest" in order to obtain a preliminary injunction. Winter v. Nat. Res. Del
Council, Inc., 555 U.S. 7, 20 (2008). Injunctive relief constitutes an "extreme
remedy" that never should be awarded as a matter of right. Id. at 22-24. A plaintiff
need only show a likelihood of success on the merits and a likelihood of
irreparable harm for ESA claims. Cottonwood Envtl. Law Ctr. v. Us. Forest Serv.,
789 F.3d 1075,1090-91 (9th Cif. 2015). Demonstrating a likelihood of irreparable
harm on the basis of an ESA claim "should not be an onerous task for plaintiffs."
Id. at 1091.
The Court first must address the likelihood of success on the merits for
claims under each relevant statute. The Court then will address Plaintiffs alleged
irreparable harm to the pallid sturgeon generally. The Court finally will address the
balance of equities and the public interest prongs of the analysis in relation to the
NEPA and Clean Water Act ("CWA") claims.
a. I ...ikelihood of Success on the Merits
Plaintiffs strongest and most complex claims fall under the ESA.
1. ESA Claims
ESA Section 7(a)(2) provides that each federal agency shall "insure that any
action authorized, funded, or carried out by such agency ... is not likely to
jeopardize the continued existence of any endangered species or threatened species
Case 4:15-cv-00014-BMM Document 155 Filed 07/05/17 Page 7 of 31
or result in the destruction or adverse modification of habitat" of the species. 16
U.S.C. § I 536(a)(2). The consulting agency must prepare a biological opinion if it
appears that an action may affect an endangered or threatened species. Cottonwood
Envtl. L. Ctr. ,789 F.3d at 1085.
The biological opinion should explain how the action '''affects the species or
its critical habitat.'" ld. (quoting 16 U.S.C. § IS36(b)(3)(A)). The consulting
agency must suggest "reasonable and prudent alternatives" when the biological
opinion concludes that the action proves likely to jeopardize an endangered or
threatened species. 16 U.S.C. § IS36(b)(3)(A). The consulting agency may procced
with the action if the biological opinion concludes that the action proves unlikely
to jeopardi7~ an endangered or threatened species. ld.
The Court reviews compliance with NEP A, CWA, and the ESA under the
judicial process set forth in the Administrative Procedures Act (HAPA"). 5 U.S.C.
§§701-706; Native Ecosystems Council v. Dembeck, 304 F.3d 886, 891 (9th CiL
2002). The decision may be set aside only when the court finds the agency's
decision "arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with Jaw." Oregon Nat. Resources Council Fund v. Goodman, 505
F.3d 884, 889 (9th Cir. 2007) (quoting 5 U.S.C. § 706(2)(A». A final agency
decision will be overturned only if the agency committed "clear error in
judgment." Marsh, 490 U.S. at 378. Plaintiff asserts that Federal Defendants' 2016
Case 4:15-cv-00014-BMM Document 155 Filed 07/05/17 Page 8 of 31
pallid sturgeon BiOp violates the ESA and otherwise proves arbitrary and
capricious. (Doc. 123 at 24.)
A. Incidental Take Statement
Plaintiff argues that the 2016 BiOp unlawfully fails to evaluate the impact
on pallid sturgeon from the level of take authorized in the Incidental Take
Statement ("ITS"). Id. at 24-26. The ITS consists of a separate document governed
by the ESA that shields the action agencies-in this case the Bureau of
Reclamation and the Army Corps ofEngineers-trom take liability under Section
Nine of the ESA. 16 U.S.C. § 1536(0). The meaning of "take" encompasses a widc
range of activities toward an endangered animal, including the prevention of
breeding at issue in this case.ld. at § 1532(19).
The ESA requires that the Fish and Wildlife Service provide an ITS with any
BiOp that finds that no jeopardy will result from the relevant action. 50 C.F.R. §
402. 14(i)( 1). The ITS must contain an "anticipated take" limit, over which the
action agencies must reinitiate Section Seven consultation under the ESA. 50
C.F.R. § 402.14(i)(4). The Fish and Wildlife Service can use a "surrogate" figure
rather than an exact number of individuals to comprise the ITS take limit. 50
C.F.R. § 402. 14(i)(1)(i). The Federal Defendants' ITS includes a take threshold of
59 percent of the adult pallid sturgeon that approach the Intake Dam each year.
(Doc. 103-3 at 3.)
Case 4:15-cv-00014-BMM Document 155 Filed 07/05/17 Page 9 of 31
Plaintiff argues that Federal Defendants failed to analyze adequately the
potential take of 59 percent of adult pallid sturgeon in their jeopardy analysis.
(Doc. 123 at 24-26.) The ESA prevents the Fish and Wildlife Service from
authorizing take at a level that would jeopardize the species.ld. at 24, citing 16
V.S.c. § 1536(b)(4). Plaintiff cites to Sw. Ctr.for Biological Diversity v. Bartel,
470 F. Supp. 2d 1118, 1146-49 (S.D. Cal. 2006), to support its argument that the
ESA requires the Fish and Wildlife Service to analyze the level of authorized take
in the BiOp's jeopardy analysis.
The agencies in Bartel had authorized a level of 12 percent take of
endangered vernal pool species. ld. at 1148. The court determined that the
authorized take "warrant[ed] an explanation as to whether the vernal pool species
[could] withstand this much loss." Id. The record fails to include any indication
that Federal Defendants analyzed whether the pallid sturgeon could withstand a 59
percent loss level as contemplated by the ITS.
Pac. Coast Fed'n a/Fishermen's Ass 'ns v. Gutierrez, 606 F. Supp. 2d 1122,
1172 (E.D. Cal. 2008), stands for the same proposition. The agencies in Pacific
Coast had conceded in the BiOp that the project at issue would take 30 percent of
an endangered fish species.ld. at 1171. The court concluded that the BiOp violated
the ESA on the grounds that it "conclusory mention[ ed,]" but did not adequately
explain, "how extirpation of approaching one-third of the species affected by
Case 4:15-cv-00014-BMM Document 155 Filed 07/05/17 Page 10 of 31
Project operations does not constitute jeopardy." ld. at 1172. The BiOp here
likewise fails to explain how possible extirpation of more than one-half of the
pallid sturgeon affected by the Project results in no jeopardy.
Federal Defendants have authorized through the ITS the take of 59 percent
of pallid sturgeon that approach the dam. (Doc. 103-3 at 3.) Pacific Coast and
Bartel, as well as the language of the ESA and its regulations, require the Fish and
Wildlife Service to have explained in its BiOp how a 59 percent take level of the
adult population of pallid sturgeon that approach the Intake Dam rationally can
coexist with a no jeopardy finding. Federal Defendants claim that they have
analyzed adequately the effects of 59 percent take in their jeopardy analysis, but
their citations prove unavailing. (Doc. 140 at 31-32.)
Federal Defendants provide two citations to the BiOp and two citations to
the ITS. The first BiOp citation merely describes the Service's reasoning for
choosing the 59 percent take figure and explains that the Service actually
anticipates more successful passage. NFWS0003 J 37. The second BiOp citation
refers to the jeopardy finding without any reference to the 59 percent take
authorization. J\.Tf'WS0003l51. The two citations to the ITS explain the reasoning
behind choosing the 59 percent figure, and conclude, without explanation, that "the
described level of anticipated incidental take, is not likely to jeopardize ... the
pallid sturgeon." NFWS0003\55-56. These citations strike the Court as similar to
Case 4:15-cv-00014-BMM Document 155 Filed 07/05/17 Page 11 of 31
the "conclusory mention" of anticipated take in a jeopardy analysis that the court
deemed inadequate in Pacific Coast. Pacific Coast, 606 F. Supp. 2d at 1172.
Federal Defendants' briefing on this motion and citations to the
administrative record lead the Court to believe that they counter Plaintiffs ITS
argument by claiming that fish passage will be more successful than the 59 percent
take authorization reflects. NFWS0003137; NFWS0003155; Doc. 140 at 29-30.
Federal Defendants seem to argue that the BiOp, as a result, would need not
address fully the impacts of the 59 percent take. The court in Bartel rejected this
Bartel determined that the authorized level of take represented the effect to
be evaluated in the jeopardy analysis. Other take estimates put forth by the federal
detendants proved irrelevant to the jeopardy analysis. Bartel, 470 F. Supp. 2d at
1148. Federal Defendants included the 59 percent take threshold as part of its ITS.
Federal Defendants must analyze the effects from the Project on the pallid sturgeon
based on this 59 percent take level.
It makes little sense as a policy matter for the Court to soften the Federal
Defendants' jeopardy analysis requirements on the basis that the ITS included an
overestimate oftake. l'his type of determination would encourage agencies always
to overestimate take in the ITS. This overestimate oftake would excuse agencies
from having to analyze in the jeopardy analysis the take actually authorized in the
Case 4:15-cv-00014-BMM Document 155 Filed 07/05/17 Page 12 of 31
ITS. This same overestimation of take in the ITS would give Federal Defendants a
large exemption from Section 9 liability under the ESA.
Nothing in the administrative record analyzes the likely take of adult pallid
sturgeon other than the 59 percent figure used in the ITS. Federal Defendants have
failed to explain whether the pallid sturgeon could survive a 59 percent take rate.
The ESA and the decisions in Pacific Coast and Bartel require the Federal
Defendants to justify the expected survival of the pallid sturgeon in the face of a 59
percent take level developed in the ITS by Federal Defendants.
An overestimate of take also would allow Federal Defendants to delay
reinitiation of consultation, which they would not be required to do until the 59
percent take metric had been surpassed. Federal Defendants must reckon with the
Section 9 liability and reinitiation realities of a higher passage rate if they wish not
to account rationally for a high take rate in their jeopardy analyzes. Plaintiff
possesses the requisite likelihood of success on the merits on this ESA theory.
Bartel, 470 F. Supp. 2d at 1146-49; Pacific Coast, 606 F. Supp. 2d at 1172.
B. Survival and Recovery Analvsis
Plaintiff argues that the BiOp unlawfully fails to assess the Project's impacts
in the context of survival and recovery of the species. (Doc. 123 at 26-31.) Federal
Defendants must analyze project impacts on survival and recovery of the species.
Nat'/ Wildlife F'ed'n v. Nat'/ Marine Fisheries Servo ("NWF ["),524 F.3d 917,931
Case 4:15-cv-00014-BMM Document 155 Filed 07/05/17 Page 13 of 31
(9th Cir. 2008). Plaintiff asserts that this requirement necessarily forces Federal
Defendants to include a quantifiable recovery goal in the BiOp and explain how
the Project will impact that goa\. (Doc. 123 at 27-28.)
Plaintiff cites to Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Servo ("NWF
II"), 184 F. Supp. 3d 861,888 (D. Or. 2016), for the assertion that the ESA
requires a quantifiable recovery metric or goal. NWF II addressed the legality of
federal agencies' ESA analysis regarding dam operations on the Columbia River.
Id. at 869-70. Various salmon and steelhead species proved to be the endangered
species at issue. Id. at 869. The court in NWF II determined that a BiOp's reliance
on population growth impacts "not tethered to any minimum population goa]"
violated the recovery analysis requirements of the ESA. Id. at 888.
The Ninth Circuit in NrVF I similarly concluded that a no jeopardy
determination violated the ESA when the agency issued it "without knowing the
in-river survival levels necessary to support recovery" or "at what point survival
and recovery will be placed at risk." NWF I, 524 F.3d at 936. The Court agrees
with Plaintiff, the Ninth Circuit, and the District of Oregon in NWF II on this point.
The ESA requires Federal Defendants to identify a measurable benchmark for
recovery against which it could analyze impacts from the project. Federal
Defendants failed to include any benchmark in their analysis.
Case 4:15-cv-00014-BMM Document 155 Filed 07/05/17 Page 14 of 31
Federal Defendants claim that Plaintiff improperly seeks to import Section
4's Recovery Plan requirements into the Section 7 jeopardy analysis. (Doc. 140 at
35-36.) The Ninth Circuit reasoned in NWF I, however, that "requiring some
attention to recovery issues does not improperly import ESA's separate recovery
planning provisions into the section 7 consultation process." NWF 1,524 F.3d at
936. Plaintiff's lack of recovery analysis arguments strike the Court as covered by
the ruling in NWF 1.
Federal Defendants also cite to the Court's prior Order Dissolving the
Preliminary Injunction to argue that the Court had deemed their recovery analysis
adequate. (Doc. 140 at 34, citing Doc. 118 at 9.) The Order evaluated the recovery
analysis under NEP A standards, however, rather than the more exacting standards
of the ESA Courts have developed more detailed, searching standards for recovery
analysis under the ESA than under NEPA See, e.g., NWF II, 184 F. Supp. 3d at
888; NWF 1,524 F.3d at 936.
Plaintiff further asserts that the BiOp violates the ESA by focusing solely on
improvement from the status quo in its recovery analysis. (Doc. 123 at 28-30.)
Plaintiff claims that mere improvement from the status quo fails to equate with the
required demonstration that the Project will not appreciably reduce the likelihood
of survival and recovery. Id. at 29. Plaintiff cites a multitude of cases for this
assertion. See, e.g., NWF II, 184 F. Supp. 3d at 888. The Court in NWF II deemed
Case 4:15-cv-00014-BMM Document 155 Filed 07/05/17 Page 15 of 31
inadequate a jeopardy analysis on the grounds that it failed to "take into account
whether populations remaining at significantly low abundance numbers, even
though the populations may be growing incrementally, appreciably diminish the
likelihood ofrecovery." Id. at 888; see also Wild H5h Conservancy, 628 F.3d at
527-28; Aluminum Co. ofAm. v. Adm 'r Bonneville Power Admin., 175 F.3d 1156,
1162 n.6 (9th Cir. 1999) (determining that "the regulatory definition ofjeopardy ..
. does not mean that an action agency can stay the course just because doing so has
been shown slightly less hannful to the listed species than previous operations.")
(internal quotations omitted); S. Yuba River Citizens League v. NMFS, 723 F.
Supp. 2d 1247, 1267 (B.D. CaL 2010) (concluding that a biological opinion proved
inadequate when it detennined that the project would "partially reduce" impacts to
a listed fish without analyzing whether the reduction would avoid causing jeopardy
to the species).
The Ninth Circuit in Wild Fish Conservancy v. Salazar, 628 F.3d 513,527
28 (9th CiI. 2010), likewise determined that the agency's movement from "no
migratory bull trout spawning successfully" to possibly very few spawning failed
to support a no jeopardy conclusion. The agencies in Wild Fish Conservancy had
produced a BiOp to address the effects ofthe operations of a fish hatchery on the
bull trout. Id. at 516. The fish hatchery almost completely blocked upstream
passage for bull trout, though in a way that represented an improvement from prior
Case 4:15-cv-00014-BMM Document 155 Filed 07/05/17 Page 16 of 31
hatchery operations. Id. at 528. The agencies inexplicably determined that the
continued negative population trend of the bull trout posed by the hatchery could
improve the overall species's chances for survival. Id. The Ninth Circuit
determined that this finding proved unlawful.ld. at 529.
The Court agrees that Federal Defendants failed to provide sufficient
information to demonstrate that the Project will improve a situation that they
concede to be dire. (Doc. 102-3 at 6.) Federal Defendants must analyze whether
the Project sufficiently will improve the pallid sturgeon's plight to give it a chance
at survival and recovery. Plaintiff possesses the requisite likelihood of success on
the merits on this ESA theory. NWF II, 184 F. Supp. at 888; Wild Fish
Conservancy, 628 F.3d at 527-28; NWF 1,524 F.3d at 936.
C. Best Available Science
Plaintiff lastly argues that the Federal Plaintiff failed to use the best
available science in producing the BiOp. (Doc. 123 at 31-37.) The ESA requires
Federal Defendants to use the best available science in their jeopardy analysis. 16
U.S.c. § 1536(a)(2). Plaintiff argues that Federal Defendants have failed to use the
best available science in three distinct ways: (1) Federal Defendants have not
provided a basis for their 85 percent passage target; (2) the BIOp's admitted
uncertainty about passage success fatally undermines its no jeopardy finding; and
Case 4:15-cv-00014-BMM Document 155 Filed 07/05/17 Page 17 of 31
(3) the no jeopardy conelusion fails to take into account the continued existence
and operation of Fort Peck Dam on the Missouri River. (Doc. 123 at 31-37.)
Plaintiff first argues that the evidence fails to support the 85 percent fish
passage expectation in the BiOp, to the extent that Federal Defendants relied on
this figure in their jeopardy analysis. Id. at 33. Plaintiff refers to a section of the
BiOp that states that the Service's Biological Review Team "set an expectation
that the ehannel will pass 85% of the spawning adults that move up to the weir."
NFWS000313 7. Plaintiff cites to multiple comments from the peer review panel
commissioned by the Corps and other groups that express substantial doubt that
fish passage will occur at this level of success. (Doc. 123 at 32.) Plaintiff contends
that the Federal Defendants failed to respond adequately to these critical comments
in its BiOp. Id. at 32-33.
Federal Defendants counter that they did not rely upon the 85 percent
passage figure for their jeopardy analysis. (Doc. 140 at 38.) Federal Defendants
elaim that it adheres to the best available science mandate to acknowledge another
biological review team's estimate. Id. The Court agrees. The plain language of the
BiOp seems to suggest that the Federal Defendants noted, but did not rely on, the
85 percent passage figure. NFWS0003137 ("set an expectation that the charliel
will pass 85%").
Case 4:15-cv-00014-BMM Document 155 Filed 07/05/17 Page 18 of 31
Federal Defendants' ITS authorized a passage rate of 41 percent (a take rate
of 59 percent). This figure strikes the Court as the operative passage rate that
Federal Defendants relied on for jeopardy purposes. The ITS incorporated this 41
percent passage rate figure and the BiOp explains the reasoning for choosing it for
inclusion in the ITS. NFWS0003137; NFWS0003155-56. Federal Defendants did
not violate the ESA's best available science requirement by noting, but not relying
on, the 85 percent passage figure in their jeopardy analysis.
Plaintiff next argues that Federal Defendants' expressed uncertainty
regarding fish passage belies their no jeopardy conclusion. (Doc. 123 at 33-35.)
Plaintiff notes the BiOp's incongruous statements that "it is impossible to prove
whether fish will, or will not, use the new bypass channel," but that "it is
reasonable to expect the proposed bypass channel will pass fish more often and in
greater numbers than the current ephemeral channeL" (Doc. 103-2 at 3.) Plaintiff
claims that Federal Defendants have failed to support this reasonable expectation
with any evidence that overcomes their conceded uncertainty with respect to the
bypass's success. (Doc. 123 at 34.) Plaintiff cites to NWF Jl for the proposition that
the risk of uncertainty must be borne by the project in an ESA context, rather than
the species. NWF II, 184 F. Supp. 3d at 904. Plaintiff asserts that the pallid
sturgeon unacceptably bear the risk that the Project will fail to provide passage.
Case 4:15-cv-00014-BMM Document 155 Filed 07/05/17 Page 19 of 31
The Court agrees with Federal Defendants that the ESA accepts some
uncertainty. Doc. 140 at 39-40, citing Ariz. Cattle Growers' Ass 'n v. Salazar, 606
F.3d 1160, 1164 (9th Cir. 2010). The Ninth Circuit in San Luis & Delta-Mendota
Water Authority v. Locke, 776 F.3d 971, 995 (9th Cir. 2014), concluded that the
best available science standard "does not ... require an agency to conduct new
tests." This no new test requirement applies even if "the only available data is
weak and thus not dispositive, an agency's reliance on such data does not render
the agency's determination arbitrary and capricious." (internal citations omitted).
The Ninth Circuit affords wide latitude to Federal Defendants under the best
available seience standard, in terms of acting in the face of severe uncertainty. The
lack of data concerning the pallid sturgeon troubles the Court in light of their dire
circumstance, but the best available science standard does not require the Federal
Defendants to "conduct new tests" beyond the minimal data that they have
Plaintifftinally asserts that Federal Defendants have violated the best
available science standard by failing to account for the operation of the Fort Peck
Dam in their jeopardy analysis. (Doc. 123 at 35-36.) Plaintiff notes that the Federal
Defendants' operation ofthe Fort Peck Dam continues to obstruct all spa",ming of
pallid sturgeon on the Missouri River. (Doc. 123 at 35-36.) Plaintiff cites to Pac.
Shores Subdivision Cal. Water Dist. V. US. Army Corps ofEng'rs, 538 F. Supp.
Case 4:15-cv-00014-BMM Document 155 Filed 07/05/17 Page 20 of 31
2d 242, 253 (DD.C. 2008), for the proposition that Federal Defendants must
account for other agency actions in the environmental baseline and "assess the
net impact on the listed species and its habitat." (emphasis added).
The plaintiffs in Pac. Shores argued that the Service had used an improper
environmental baseline by considering the natural breaching levels of the lakes at
issue. The record indicated that the lakes generally had been breached artificially in
the past. ld. The court concluded that the environmental baseline proved proper on
the grounds that "FWS did not include this assumption about natural breaching to
the exclusion of a consideration of the effects of past private actions such as
artificial breaching." ld. The court emphasized that the Service had "for each
potentially affected species ... considered the direct and indirect effects of the
proposed breaching in light of the past artificial breaches." ld.
Federal Defendants properly have included Fort Peck Dam's operations in
the environmental baseline. Federal Defendants cite to multiple instances in the
BiOp where they plainly acknowledge that Fort Peck Dam operations completely
have obstructed, and continue to obstruct, pallid sturgeon spawning on the
Missouri River. Doc. 140 at 42, citing NFWS0003112 (explaining blocked access
to spawning as a result of Fort Peck Dam); NFWS0003112-15 (discussing reduccd
drift distance as a rcsult of Fort Peck Dam); NFWS0003114-15 (discussing
negative influences on spawning cues and water temperature as a rcsult of Fort
Case 4:15-cv-00014-BMM Document 155 Filed 07/05/17 Page 21 of 31
Peck Dam); NFWS0003111 (addressing the spawning but lack of recruitment that
occUlTed below Fort Peck Dam in 20 14);!\FWS0003150 (explicitly mentioning
the negative effects resulting from the operation of Fort Peck Dam in the no
jeopardy finding). These BiOp citations indicate that Federal Defendants have
"considered the direct and indirect effects of the proposed [Project] in light of [Fort
Peck Dam operations]." Pac. Shores, 538 F. Supp. 2d at 253. The best available
science standard requires no more.
The Court's determination on this point stands in light of Federal
Defendants' offered supplemental authority, Deft. of Wildlife v. Zinke, No. 15
55806,2017 WL 2174546 (9th Cir. May 18,2017). (Doc. 149.) The Ninth Circuit
in Zinke determined that the Service did not violate the ESA' s best available
science standard when it made a no jeopardy finding in the face of uncertainty. Td
at *6. A lack of scientific consensus regarding the desert tortoise's required habitat
corridor caused the uncertainty. Jd Federal Defendants similarly complied with the
best available science standard when they made a no jeopardy finding in the midst
of biological uncertainty regarding the pallid sturgeon.
2. NEPA Claims
NEPA requires action agencies-the Bureau of Reclamation and the Corps
in this ease--to analyze fully the environmental impacts of a proposed action if
that action would significantly affect the environment. 42 U.S.C. § 4332. NEPA
Case 4:15-cv-00014-BMM Document 155 Filed 07/05/17 Page 22 of 31
analysis culminates in an EIS that serves as a transparency measure for the public
and a means for the agency to take a "hard look" at environmental impacts before
it initiates an action. Robertson v. Methow Valley Citizens Council, 490 U.S. 332,
356 (1989). Plaintiff seeks to obtain a preliminary injunction in part on the basis
that the Federal Defendants' operative NEPA document for the Project, the 2016
EIS, proves deficient on three distinct theories.
A. Failure to Differentiate Among Alternatives
Plaintiff argues first that Federal Defendants violated NEP A by equating the
environmental impacts of the multiple pump alternative and the bypass alternative,
despite evidence that the bypass alternative would result in a more negative
environmental impact for the sturgeon. (Doc. 123 at 38-42.) Plaintiff cites to Ctr.
for Biological Diversity v. Us. Dep 't ofInterior (HCBD), 623 F.3d 633, 645 (9th
Cir. 2010), for this claim. The Ninth Circuit in CBD determined that an EIS proved
insufficient when it equated the environmental impacts of transferring ownership
of public land to a mining company with the impacts of keeping ownership in the
hands of the federal government. ld. at 636.
The Court in CBD emphasized that the agency could not claim that the
environmental impacts of transferring ownership ofthe land proved "not possible
to predict" or "speculative," when "the FEIS iself contain[ed] detailed information
about the mining activities that [the mining company] intend[ed] to conduct on the
Case 4:15-cv-00014-BMM Document 155 Filed 07/05/17 Page 23 of 31
selected lands." Id. at 645. The agency had presented these acknowledged
foreseeable impacts "in a manner not easily found in the EIS," and they proved
"less speculative than [the agency] suggests." Id.
The EIS likewise violates J>..TEPA when it equates environmental impacts
across the multiple pump alternative and the bypass alternative. Federal
Defendants acknowledge differentiation among alternatives with respect to
probability of successful passage, but they do so similar to the agency in CBD, "in
a manner not easily found in the EIS." Id. The summary tables and graphs in the
EIS that represent easily-interpreted, comparative information equate or obfuscate
the environmental impacts ofthe two alternatives. For example, the EIS contains a
comprehensive table that reflects all impacts from each alternative and proves easy
to read and comprehend. (Doc. 104-1 at 198.) The table reflects that the bypass
alternative "meets FWS criteria and has high potential to pass fish" and states only
"open river" in the multiple pump alternative's box. Id. The table appears to
represent a confusing summary at best, and a pointed concealment at worst, on the
part of Federal Defendants.
Federal Defendants present their use of the Fish Passage Connectivity Index
("FPCI") as a meaningful comparison of alternatives in the EIS. (Doc. 140 at 44.)
The FPCI aims to provide a relative comparison offish passage success among
alternatives. Jd. The £IS stated that the bypass alternative scored a 0.67 on the
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FPCI, and the multiple pump alternative scored a 1.00. (Doc. 104-3 at 269, 278
79.) The EIS interpreted these results, however, in a way that roughly equated the
tish passage prospects between the two altematives.
The EIS states that the bypass alternative has "a high likelihood of tish
encountering [the] passageway ... and it would be accessible and meet BRT
criteria for pal1id sturgeon passage." !d. at 269. The EIS states that the multiple
pump alternative offers "unhindered passage." The narrative explanations ofthese
numbers prove crucially important in this instance because the FPCI represents a
new metric used by Federal Defendants. The controversial methodology behind
this metric appears only in an appendix that most members of the public probably
would tind confusing to read. NUSACE0006450. A member of the public who
read the narrative evaluations oftish passage prospects would consider both
alternatives to present similarly high chances of success.
Federal Defendants highlight some differentiation in the EIS between the
environmental impacts of the two alternatives. Federal Defendants' efforts to
explain, distill, and compile information in the EIS, however, overshadow this
differentiation. These summaries prove the easiest to digest by the public, but they
also confusingly portray the bypass alternative as providing roughly equal
environmental impacts as the multiple pump alternative. NEPA's public awareness
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aim does not allow this eonclusion when the ETS itself contains conflicting
information. See CBD, 623 F.3d at 645.
Plaintiff also claims that Federal Defendants' use of the FPCI to measure
cost effectiveness violated NEPA. (Doc. 123 at 42-44.) Plaintiff argues that the
FPCI represents an inappropriate comparative metric on the basis that it has not
faced peer review and various commenters have criticized its use. Id. at 43.
Plaintiff emphasizes that Federal Defendants concede that they did not intend the
FPC I to predict the "statistical probability" offish passage. (Doc. 123-3 at 7; Doc.
123-2 at 61.)
Federal Defendants' use of the FPC! concerns the Court in light of its lean
scientific support. Federal Defendants possess a wide latitude of deference as
federal agencies, however, when they choose between various scientific models.
San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 610 (9th Cir.
2014). Federal Defendants' use of a metric that has not been peer-reviewed does
not alone violate NEP A. Lands Council v. Martin, 529 F.3d 1219, 1226 (9th Cif.
2008). The Court conversely must be "at its most deferential" in evaluating Federal
Defendants' use of the FPCI in light of the Project's demand that they operate at
the "frontiers of science." Id. Federal Defendants' use of the FPCI proves
allowable under NEPA in light of the great deference afforded to Federal
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Defendants on this issue. San Luis, 747 F.3d at 610; Lands Council, 529 F.3d at
C. Fort Peck Dam Impacts
Plaintiff's final NEPA argument focuses on the Federal Defendants alleged
failure to consider the cumulative impact of the operation of Fort Peck Dam in the
EIS. (Doc. 123 at 44-48.) NEPA regulations require Federal Defendants to analyze
cumulative impacts. NEPA defines cumulative impacts as impacts "result[ing]
from the incremental impact of the action when added to other past, present, and
reasonably foreseeable future actions." 40 C.F.R. § 1508.7.
NEPA requires only that Federal Defendants include cumulative impacts in
the environmental baseline against which they evaluate the incremental impacts of
the Project Cascadia Wildlands v. Bureau ofIndian Affairs, 801 F.3d 1105, 1112
(9th Cir. 2015). The £IS correctly acknowledged the low numbers ofvvild pallid
sturgeon that currently exist between Fort Peck Darn and the headwaters of Lake
Sakakawea. NUSACE0004973. The EIS also described the Fort Peck Dam's
outsized role in preventing successful recruitment of pallid sturgeon.
NUSACE0005164. These citations illustrate that Federal Defendants have included
the operation of Fort Peck Darn in the environmental baseline. NEP A requires no
more. Plaintiff is thus unlikely to succeed on the merits under this theory.
3. CWA Claim
Case 4:15-cv-00014-BMM Document 155 Filed 07/05/17 Page 27 of 31
Plaintiff lastly argue that Federal Defendants' issuance of a CWA § 404
permit for the Project violates § 404'8 substantive standards. (Doc. 123 at 48-5l.)
Section 404's substantive standards prevent the Army Corps of Engineers "from
issuing a § 404(b) permit ifthere is a less [environmentally] damaging practicable
alternative." Utahns v. Dep 'f a/Trans., 305 F.3d 1152, 1186-87 (10th Cir. 2002).
Practicable alternatives prove "available and capable of being done after taking
into consideration cost, existing technology, and logistics in light of overall project
purposes." 40 C.F.R. § 230.1O(a)(2). Plaintiff claims that Federal Defendants have
not completed the proper analysis under this framework on the basis that they only
have compared the practicability of the multiple pump and bypass alternatives.
(Doc. 123 at 50.) Plaintiff asserts that Federal Defendants have not deemed the
least environmentally-damaging alternative-the multiple pump alternative
impracticable and thus have not completed the analysis required to issue the § 404
Plaintiff correctly characterizes the analysis as requiring Federal Defendants
to deem the least environmentally-damaging alternative as impracticable in order
to proceed with a different alternative. 40 C.F.R. § 230.1 O(a). The Tenth Circuit in
Utahns confinned the contours of the analysis when it stated that "[ uJnder the
CWA, the test is not whether a proposed project is better than an alternative with
less wetlands impact because it would eost less and have less impact on existing
Case 4:15-cv-00014-BMM Document 155 Filed 07/05/17 Page 28 of 31
and future development. The test is whether the alternative with less wetlands
impact is impracticable." Utahns, 305 F.3d at 1186. Federal Defendants have
identitled the FPCI as the manner in which they differentiate between the
alternatives with respect to environmental impacts. (Doc. 140 at 65.) The multiple
pump alternative presents a more favorable FPC] figure than the bypass alternative
and thus represents the least environmentally-damaging alternative by Federal
Defendants' own measure. (Doc. 104-3 at 269, 278-79.)
Federal Defendants first must have found that the multiple pump alternative
proved infeasible in order to select a different alternative. Federal Defendants have
fallen short of this determination, however, when they stated that all alternatives
"were found to be potentially practicable." NUSACE0006650. The CWA does not
allow Federal Defendants to select the bypass alternative, as they did, without I1rst
reasonably finding that the multiple pump alternative proved impracticable. They
instead found that the multiple pump alternative proved "potentially practicable."
NL'SACE0006650. Plaintiff successfully has demonstrated a likelihood of success
on the merits on its CWA claim.
305 F.3d at 1186; NUSACE0006650.
b. Irreparable Harm
Plaintiff asserts that the Project would result in irreparable harm to its
members' interests in the pallid sturgeon in the absence of an injunction. (Doc. 123
at 51-54.) Federal Defendants posit that construction on the Project will not result
Case 4:15-cv-00014-BMM Document 155 Filed 07/05/17 Page 29 of 31
in increased irreparable harm to the pallid sturgeon because the Project will not
impede passage more than the status quo. (Doc. 140 at 16.) The Court rejected this
position earlier in this case by stating that it "fails to recognize that Federal
Defendants' continued operation of the existing weir constitutes the reason that
pallid sturgeon cannot swim upriver." (Doc. 73 at 16.) The Court also deternlined
that irreparable harnl likely would result on the grounds that Federal Defendants
had not adequately demonstrated that the Project would pass pallid sturgeon. Id. at
It appears that Federal Defendants still have failed to demonstrate that the
Project would pass pallid sturgeon in light of the likely ESA, "i\EP A, and CWA
violations discussed in this order. Neither the Project, nor the condition of the
pallid sturgeon, has meaningfully changed since the Court issued the above cited
Order concerning irreparable harm. (Doc. 73 at 16-17.) Plaintitfhas demonstrated
that irreparable harnl likely would result in the absence of an injunction.
c. Balance of Equities and Public Interest
The equities must tip in Plaintiffs favor and the proposed preliminary
injunction must be in the public interest in order for the Court to issue the
preliminary injunction on NEPA or CWA grounds. Winter, 555 U.S. at 20;
Cottonwood, 789 F.3d at 1090-91. Plaintiff argues that the balance of equities tips
Case 4:15-cv-00014-BMM Document 155 Filed 07/05/17 Page 30 of 31
in its favor and that the preliminary injunction would be in the public interest for
Plaintiff first notes that this case primarily concerns an endangered species,
and the balance of equities factor and the public interest factor "always weigh in
the species' favor." Cascadia Wildlands v. Scott Timber Co., 190 F. Supp. 3d
1024, 1036 (D. Or. 2016). Plaintiff next asserts that the Ninth Circuit has held that
the equities weigh in favor of an injunction, and the public interest would be served
by an injunction when an environmentally damaging project would otherwise
proceed in violation ofNEPA. Doc. 123 at 55-56, citing Sierra Club v. Bosworth,
510 F.3d 1016, 1033 (9th Cir. 2007); Alliance for the Wild Rockies v. Cottrell, 632
F.3d 1127, 1138 (9thCir. 2011); S. Fork Band Council ofW. Shoshone ofNev. v.
u.s. Dep 't ofInterior, 588 F.3d 718, 728 (9th Cir. 2009). Plaintiff lastly contends
that the public interest and balance of equities factors weigh in favor of the
proposed injunction in light of its modest duration. (Doc. 123 at 56.)
The Court agrees with Plaintiff. It appears from the Court's preliminary
analysis of the merits that Federal Defendants likely violated NEPA and the CWA
by proceeding with this project without adequate analysis. It would not lie within
the public interest to expend tax payer funds and likely inflict further harm on the
pallid sturgeon by initiating the Project now. The balance of equities weighs in
Case 4:15-cv-00014-BMM Document 155 Filed 07/05/17 Page 31 of 31
favor of, and the public interest calls for, a preliminary injunction until the Court
can decide this case on the merits.
The Court still holds the $500 bond that Plaintiff paid in 2015. The Court
requires no further bond.
Accordingly, IT IS ORDERED:
1. Plaintiffs Motion for Preliminary Injunction (Doc. 122), is GRANTED.
2. Plaintiff and Federal Dcfendants shall file a mutually agreed upon
scheduling order that sets deadlines for Federal Defendants' lodging of the
administrative record and both parties' summary judgment briefing within
14 days of the filing of this Order. The Court will file a scheduling order if
the parties cannot come to an agreement within 14 days. The Court will set a
hearing for summary judgment oral argumcnts after the parties file their
proposed scheduling order.
Dated this 5th day of July, 2017.
United States District Court Judge
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