Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 886 F.3d 803

Background

This litigation concerns the operation of eight mainstem dams in the Federal Columbia River Power System (FCRPS) and their effects on 13 Columbia/Snake River salmon and steelhead populations listed under the Endangered Species Act (ESA).
NMFS issued successive biological opinions (2000, 2004, 2008/2010, 2014) addressing whether FCRPS operations jeopardize listed species; the district court repeatedly rejected some BiOps and remanded for compliance with ESA and NEPA.
In May 2016 the district court found NMFS violated the ESA and APA in the 2014 BiOp (NWF V), ordered a new BiOp, and retained jurisdiction; the court later set schedules for an EIS under NEPA and remand compliance.
Plaintiffs (National Wildlife Federation and Oregon) moved in Jan 2017 for injunctive relief: (1) increased spring spill (up to state total dissolved gas caps) to improve juvenile survival; (2) operation of juvenile bypasses and early PIT-tag monitoring; and (3) a NEPA-related restriction/disclosure requirement on substantial capital expenditures during the NEPA remand.
The district court (Apr 2017) granted in part: ordered spill and PIT-tag monitoring (implementation delayed to 2018) and required the Corps/Reclamation to disclose planned capital projects so plaintiffs could seek targeted injunctions; defendants and intervenors appealed the injunctive orders and disclosure requirement.
The Ninth Circuit affirmed the spill and PIT-tag injunctions (finding no abuse of discretion), and dismissed the appeal of the NEPA disclosure order for lack of appellate jurisdiction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rule 60(b) barred plaintiffs’ Jan 2017 injunctive motions	Jan 2017 motions were permissible because the May 2016 remand order was not final and the district court retained jurisdiction	May 2016 order was a final judgment so Rule 60(b) applies and plaintiffs’ motions were procedurally barred	May 2016 order was not final; Rule 60(b) did not apply and district court could consider new injunctive motions
Whether plaintiffs showed likely irreparable harm justifying spill injunction under ESA	Ongoing FCRPS operations cause likely, irreparable harm to listed salmonids and to plaintiffs’ interests, even absent extinction-level threat in remand period	Plaintiffs failed to show extinction-level or sufficiently direct harm from the spill component alone; injunction exceeds court’s equitable authority	Plaintiffs met the modified injunction standard for ESA enforcement; extinction-level threat not required; court did not abuse discretion in finding likely irreparable harm
Whether injunctions were narrowly tailored and intruded on agency discretion	Proposed limited, gas-cap-constrained spill and monitoring would mitigate harm and allowed agency implementation details	Injunctions improperly micromanage operations and exceed equitable bounds by intruding into agency administration	Injunctions were sufficiently limited, allowed planning/adjustment time, and did not unconstitutionally intrude on agencies’ administrative province
Whether the district court’s NEPA disclosure order was appealable as an injunction	Disclosure is substantive relief that alters parties’ relations and should be appealable	Disclosure order is a litigation conduct/discovery-type order (not an injunction) and did not modify the NEPA injunction	Disclosure order is not appealable under 28 U.S.C. §1292(a)(1); appeal dismissed for lack of jurisdiction

Key Cases Cited

Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075 (9th Cir. 2015) (ESA limits equitable discretion on some injunction factors)
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (U.S. 2008) (preliminary injunction standard requires likely irreparable harm)
Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 422 F.3d 782 (9th Cir. 2005) (prior panel decision upholding spill injunction principles)
Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d 917 (9th Cir. 2008) (assessment of BiOp validity and species status)
Tennessee Valley Auth. v. Hill, 437 U.S. 153 (U.S. 1978) (ESA’s core purpose to prevent extinction and promote recovery)
Sierra Forest Legacy v. Sherman, 646 F.3d 1161 (9th Cir. 2011) (finality and appealability of remand orders)
Perfect 10, Inc. v. Google, Inc., 653 F.3d 976 (9th Cir. 2011) (causal connection required between enjoined activity and irreparable harm)
All. for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) (organizational standing and member injuries sufficient for irreparable harm)