24-954
9th Cir.Aug 16, 2024Background
- The Puyallup Tribe sued Electron Hydro LLC, alleging its temporary spillway on the Puyallup River caused a prohibited "take" of threatened fish species under the Endangered Species Act (ESA), specifically impacting Chinook salmon, steelhead trout, and bull trout.
- The district court granted partial summary judgment for the Tribe and issued a permanent injunction requiring Electron to remove the spillway's center portion.
- Electron appealed, challenging both the summary judgment ruling and the scope of the injunction.
- The district court found, based on the record, that the spillway significantly impeded fish migration and spawning due to "false attraction flows" diverting fish from the fish ladder.
- Electron argued their fish ladder provided effective passage, but the Tribe asserted (and the court largely agreed) that the spillway's configuration still blocked reliable fish migration during key times.
- The Ninth Circuit affirmed the district court, finding no genuine disputes of material fact and that the injunction was appropriately tailored to remedy ESA violations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the spillway cause an ESA “take”? | It significantly impeded migration and spawning. | Only minimal/isolated impacts; fish ladder sufficed. | Yes—spillway significantly interfered with protected species. |
| Was the "significance" standard met? | Record shows significant impact on fish behavior. | No true evidence of significant impact. | Yes—substantial impairment shown in record. |
| Are dead/injured fish required to prove take? | No; ESA covers impairment, not just physical harm. | Lack of dead fish undermines Tribe's argument. | No physical harm or carcasses needed for ESA violation. |
| Was the injunction's scope proper? | Removal is needed for lasting, reliable fish passage. | Alternatives exist; removal excessive. | Yes—removal is narrowly tailored to remedy harms. |
Key Cases Cited
- Marbled Murrelet v. Babbitt, 83 F.3d 1060 (9th Cir. 1996) (significant habitat modification that impairs essential behavioral patterns constitutes injury under ESA)
- Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365 (9th Cir. 1998) (appellate courts may affirm on any ground in the record)
- Triton Energy Corp. v. Square D Co., 68 F.3d 1216 (9th Cir. 1995) (more than a scintilla of evidence needed to defeat summary judgment)
- Flathead-Lolo-Bitterroot Citizen Task Force v. Montana, 98 F.4th 1180 (9th Cir. 2024) (injunctions should be tailored to specific alleged harms)
- Cascadia Wildlands v. Scott Timber Co., 105 F.4th 1144 (9th Cir. 2024) (evidence of dead animals not always required for ESA take)