6:15-cv-02358
D. Or.Apr 6, 2016Background
- Plaintiffs (Center for Biological Diversity and WaterWatch of Oregon) challenge BOR and irrigation districts' operation of Crane Prairie, Wickiup, and Crescent Lake dams as violating ESA §§ 7 and 9 by harming the threatened Oregon spotted frog through altered flows.
- Plaintiffs seek a mandatory preliminary injunction to: (a) open dam controls to allow run-of-river flows, or (b) maintain minimum flows (770 cfs below Wickiup and specified reservoir levels), plus 40 cfs for Crescent Creek/Little Deschutes.
- BOR initiated ESA consultation with FWS in 2015 and parties are developing a Deschutes HCP; consultation expected to complete in 2017 and HCP in 2019; interim conservation measures are being implemented.
- Plaintiffs allege ongoing operations cause "take" (egg desiccation, predation, loss/delay of breeding) and that consultation or continued operations violate §§ 7(a)(2), 7(d), and 9.
- Defendants argue (1) consultation is underway and cumulative effects will be addressed, (2) interim measures and current conditions benefit frog populations in parts of the basin, (3) plaintiffs’ hydrological proposals are speculative and not supported by long-term data, and (4) the injunction would harm other species, tribal interests, water users, and ongoing collaborative processes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BOR violated ESA §7(a)(2) by acting without adequate consultation | BOR has not adequately consulted and consultation is too narrow; ongoing operations threaten species | BOR initiated consultation with FWS in 2015; consultation will and should consider cumulative effects; process underway | Court: Consultation has been initiated; any scope issues are for the merits, not a basis for preliminary mandatory relief. |
| Whether BOR violated ESA §7(d) by making irreversible commitments after consultation began | Continued dam operations irretrievabl[y] commit water resources and foreclose reasonable alternatives | Continued operations do not irretrievably foreclose implementation of reasonable and prudent alternatives | Court: Plaintiffs failed to show operations would irretrievably commit resources to bar §7(d); BOR’s decision memo supports defendants. |
| Whether defendants’ operations cause unlawful "take" under ESA §9 (and whether that establishes irreparable harm) | Operations cause egg desiccation, flooding, and breeding habitat loss leading to increased mortality; likelihood of §9 violation implies irreparable harm | Alleged harms are speculative or natural mortality; ESA protects species not individuals; must show population-level, species-significant harm | Court: Even assuming possible take, plaintiffs did not show the clear, species-level irreparable harm required to justify the mandatory injunction sought. |
| Whether a mandatory preliminary injunction is warranted (balance of hardships & public interest) | Immediate operational changes required to prevent imminent harm to frogs | Injunction risks harming other protected fish, tribal and community interests, disrupts collaborative HCP process, and harms water users | Court: Plaintiffs failed to meet the high burden for mandatory relief; balance of hardships and public interest weigh against injunction. |
Key Cases Cited
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) (standard for preliminary injunction requires likelihood of success, irreparable harm, balance of hardships, and public interest)
- All. for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) (preliminary injunction framework in Ninth Circuit)
- Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873 (9th Cir. 2009) (mandatory injunctions are particularly disfavored)
- Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 422 F.3d 782 (9th Cir. 2005) (Section 7 consultation requirements and scope)
- Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 807 F.3d 1031 (9th Cir. 2015) (consultation must consider cumulative effects)
- Nat'l Wildlife Fed'n v. Burlington N. R.R., 23 F.3d 1508 (9th Cir. 1994) (likelihood of statutory violation does not automatically entitle movant to injunction)
- Marbled Murrelet v. Babbitt, 83 F.3d 1068 (9th Cir. 1996) (public interest and balance of hardships in species-protection injunctions)
- The Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) (courts should not substitute their own scientific judgment for expert agencies)