Case Information
UNITED STATES DISTRICT COURT DISTRICT OF OREGON
CENTER FOR BIOLOGICAL DIVERSITY, Case Nos. 6: 15-cv-02358-JR
(Lead Case) Plaintiff, 6:16-cv-00035-JR v. (Trailing Case) U.S. BUREAU OF RECLAMATION,
Defendant,
and
ARNOLD IRRIGATION DISTRICT, et al.,
Intervenor-defendants. WATERWATCH OF OREGON,
Plaintiff,
v.
U.S. BUREAU OF RECLAMATION, et al.,
Defendants,
and
ARONOLD IRRIGATION DISTRICT, et al,
Intervenor-defendants. 1 - OPINION AND ORDER
AIKEN, Judge:
In these consolidated actions, plaintiffs filed suit against the U.S. Bureau of Reclamation (BOR) and several hTigation districts (Districts), alleging that the BOR and Districts' operation and maintenance of Crane Prairie Dam and Reservoir, Wickiup Dam and Reservoir, and Crescent Lake Dam violate Sections 7 and 9 of the Endangered Species Act (ESA). Plaintiffs maintain that the dams' operations cause adverse impacts to the Oregon spotted frog, a threatened species, by inhibiting and altering natural flows of the Upper Deschutes River.
Plaintiffs now move for preliminary injunctive relief in order to protect the spotted frog pending final resolution in this case. Specifically, plaintiffs seek a preliminary injunction requiring BOR and the Districts to open the controls of the dams to allow for natural water flows, or, alternatively, to alter reservoir operations so that the flow of the Upper Deschutes River is maintained at levels of at least 770 cubic feet per second (cfs). BOR and the Districts oppose the motion and argue that plaintiffs' proposed relief will not aid and could harm the spotted frog while causing unanticipated effects and certain harm to other water users and stakeholders. The Confederated Tribes of the Watm Springs Reservation (the Tribe), as amicus curiae, also opposes plaintiffs' requested relief and argues that such relief likely would impair its interests in protected fish species.
On March 22, 2016, the court heard oral argument from the parties and the Tribe. As advised during the hearing, plaintiffs' motion is denied.
DISCUSSION
A preliminary injunction is "an extraordinary remedy that may only be awarded upon a
clear showing that the plaintiff is entitled to such relief."
Winter v. Natural Res. Def Council,
Inc.,
Plaintiffs allege that BOR has violated Section 7(a)(2) of the ESA by allowing the dams' continued operations before completing ESA consultation. Under Section 7, federal agencies must insure that any actions are not likely to jeopardize the "continued existence" of a tln·eatened or endangered species or adversely modify the species' critical habitat. 16 U.S.C. § 1536(a)(2). Federal agencies must consult with the United States Fish and Wildlife Service (FWS) or National Marine Fisheries Service regarding any agency action that may affect a threatened or endangered species. Id.; Nat'/ Wildlife Fed'n v. Nat'l lvfarine Fisheries Serv., 422 F.3d at 782, 790 (9th Cir. 2005).
Here, BOR has initiated consultation with the FWS on the effects of conservation measures the Districts intend to implement to benefit the spotted frog. 1 Plaintiffs nonetheless argue that the ESA consultation is too natTOW and does not address the entirety of the dams' operations and resulting effects on the frog. Regardless of how the consultation process is characterized, BOR has initiated consultation regarding the dams' operations, and, presumably, the consultation will consider the cumulative effects of the dams' operations on the frog. See Ctr. for Biological Diversity v. US. Fish & Wildlife Serv., 807 F.3d 1031, 1045 (9th Cir. 2015) (remarking that "interrelated actions are, by definition, pati of the 'effects of the action"'); id. at 1047 n.13 ("FWS is required in its biological opinion to determine 'whether the action, taken together with cumulative effects, is likely to jeopardize the continued existence of listed species.' 50 C.F.R. § 402.14") (citation omitted). If the scope of consultation is too natTow, the cou1i can address that factor at the merits stage; it does not wanant a preliminary injunction.
1 In 2008, the Deschutes Basin Board of Control and the City of Prineville began developing the Deschutes Basin Habitat Conservation Plan (Deschutes HCP). Moran Deel. 'if'if 11-13; Deflitch Deel. 'if 44; Willey Deel. 'if'if 10-16; see also 16 U.S.C. § 1539(a)(2)(A) (party seeking incidental take permit must submit a conservation plan). The Deschutes HCP process represents a multi-year, collaborative effort by numerous state, federal, tribal, non-governmental, and private entities to "help coordinate water management, streamflow restoration, and the long term needs of sensitive and federally-listed species," including the spotted frog. Deflitch Deel. il 44; Moran Deel. 'if'if 11-13. The "Oregon Spotted Frog Technical Group" - comprised of scientists and experts from FWS, the United States Forest Service, the Oregon Depatiment of Fish and Wildlife, the Oregon Water Resources Depatiment, and the Districts - has developed conservation measures intended to enhance spotted frog habitat. Vaughn Deel. 'if'if 19-21; Willey Deel. 'if'if 17-18, 46-58. First Sewell Deel. Ex. 19. BOR initiated consultation with FWS in 2015, as some of these early conservation actions may require BOR approval or other affirmative agency action. The consultation is expected to be completed in July 2017 and will govern the Districts' operations pending completion of the Deschutes HCP, which is expected to occur in 2019. Moran Deel. 'if'if 13-14 & Figs. 1-2. In the meantime, the Districts intend to implement interim measures to protect the spotted frog until the ESA consultation is complete. Vaughn Deel. 'if'if 18-20, 28 & Ex. C; Moran Deel. 'if'if 8, 28; Willey Deel. 'if'if 46-58, 61; Diller Deel. 'if 28; Britton Deel. 'if'if 10-11.
Plaintiffs next claim that BOR has violated Section 7(d), which precludes an agency from making "any irreversible or irretrievable commitment of resources" after the initiation of consultation that would foreclose "any reasonable and prudent alternative measures." 16 U.S.C. § 1536(d). Plaintiffs apparently consider the continued operation of the dams as an "irretrievable" commitment of water resources. However, plaintiffs fail to explain how the continued operation of the dams will foreclose the implementation of any reasonable and prudent measures that may be developed during the consultation process. See Eitel Deel. U.S. Ex. F at 1- 2 (Decision Memo by BOR asserting that the Districts' continued operations "will not irreversibly or irretrievably commit resources that have the effect of foreclosing the foimulation or implementation of any reasonable and prudent alternatives").
Lastly, plaintiffs allege that BOR and the Districts are violating Section 9 of the ESA. To show a violation of Section 9, plaintiffs must demonstrate that the defendants' actions cause "take" of the spotted frog. 16 U.S.C. §§ 1538(a)(l)(B) (prohibiting "take" of protected species), 1540(a)(l) (imposing civil liability against those who violate ESA). The "take" of a protected species includes "harm" to the species, defined as "an act which actually kills or injures wildlife" or "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." 16 U.S.C. § 1532(19); 50 C.F.R. § 17.3.
The parties disagree as to whether the Districts' ongoing operations, in light of the interim measures, will cause harm to the spotted frog. Plaintiffs argue that the dams' operations harm the frog "by causing desiccation of egg masses that kills the eggs, flooding of egg masses into deeper water that increases predation of eggs, and failure to inundate breeding habitat for much of the breeding season that either prevents or delays breeding." Pis.' Mem. in Suppo1t at 23; First Simpson Deel. ~~ 33-75. Plaintiffs thus contend that the spotted frogs in the Upper Deschutes River basin are likely to have "increased m01iality" as a result. First Simpson Deel. ~~ 82-89. The Districts counter that plaintiffs' contentions are "highly speculative" and that "high mortality" rates are paii of the "natural" life cycle for the frog. Districts' Opp'n at 34; Diller Deel.~~ 31, 32. The Districts maintain that "it is often difficult to determine whether harm to an individual Oregon spotted frog, tadpole, or egg mass is likely the result of natural phenomenon or the direct result of some other action (e.g. operation of reservoirs to change water flows)." Districts' Opp'n at 34; Diller Deel.~~ 31, 37; 79 Fed. Reg. at 51659-60 ("spotted frogs' eggs are extremely vulnerable to desiccation and freezing" due to the frogs' "laying habits").
As plaintiffs point out, the FWS listing decision for the spotted frog and other evidence
reflect that regulated water releases from the dams affect overwintering and breeding habitat for
the spotted frog. First Sewell Deel. Exs. 1, 4, 6, 7-9, 12;
BOR and the Districts emphasize that the ESA protects species rather than individual animals, and, consequently, plaintiffs must show irreparable harm in the form of "significant population-level effects to the species." Fed. Def. 's Opp'n at 13; Districts' Opp'n at 13-15 [2] ; see also Nw. Envtl. Def Ctr. v. US. Army Corps of Eng'rs, 817 F. Supp. 2d 1290, 1315 (D. Or. 2011) (finding that "irreparable harm to ESA listed species must be measured at the species level," and a "plaintiff must present a 'concrete showing of probable deaths during the interim period and of how these deaths may impact the species."') (citation omitted); Deft. of Wildlife v. Salazar, 812 F. Supp. 2d 1205, 1209 (D. Mont. 2009) (explaining that considering harm to individual animals as irreparable harm "would produce an irrational result" because "the ESA permits incidental takes of a listed species"); Ctr. for Envtl. Sci., Accuracy & Reliability v. Cowin, 2015 WL 3797693, at *9 (E.D. Cal. June IS, 2015) ("Irreparable injury requires harm 'significant' to the 'overall population."') (citation omitted).
Plaintiffs disagree and argue that the likelihood of a Section 9 violation establishes i1Teparable harm under the ESA. See Nat'! Wildlife Fed'n v. Burlington N. R.R., 23 F.3d 1508, 1511 (9th Cir. 1994). If plaintiffs were seeking a prohibitory injunction, I might agree that plaintiffs need not show irreparable harm at the species level, depending on the circumstances. Here, however, plaintiffs seek a mandatory injunction requiring wholesale changes to the operations of three dams and to the management of the Upper Deschutes River basin. Given these circumstances, plaintiffs must show more than a likely Section 9 violation to obtain such far-reaching relief. Id. ("Federal courts are not obligated to grant an injunction for every violation of the law."). Rather, to persuade this court to impose the mandatory iajunction they seek, plaintiffs must make a showing of "extreme damage" and present evidence that the dams' operations are causing irreparable harm to the spotted frog that "would be significant for the species as a whole." Pac. Coast Fed'n of Fishermen's Ass'ns v. Gutierrez, 606 F. Supp. 2d 1195, 1210 n.2 (E.D. Cal. 2008); Nw. Envtl. Def Ctr, 817 F. Supp. 2d at 1315. Plaintiffs fail to do so.
According to defendants, the Upper Deschutes River basin, including the area directly affected by the iffigation projects, continues to be a "stronghold" for the Oregon spotted frog. Fed. Defs.' Opp'n at 14. Defendants maintain that evidence shows the frogs are increasing in 7 - OPINION AND ORDER
some areas, stable at others, and declining in an area unaffected by dam and reservoir operations. 79 Fed. Reg. at 51666; Vaughn Deel. ifif 10, 23; Diller Deel. ifif 26-27, 29. Defendants also emphasize that current conditions in the Upper Deschutes basin actually benefit the frog. Vaughn Deel. ifif 14-15, 29; Diller Deel. ifif 11, 39-40; Moran ifif 19, 33. Most significantly, the Districts are implementing interim measures - coordinated with and approved by FWS - to improve spotted frog habitat conditions during the ESA consultation process. See Moran Deel. ifif 8, 28; Vaughn Deel. i!iJ 20-21, 28; Willey Deel. ifif 46-58, 61; Diller Deel. if 28; Britton Deel. ifif 10-11.
At oral argument, plaintiffs acknowledged the benefit of the interim measures but argued that low river flows in the winter will nonetheless cause inm1inent and ilTeparable harm to the spotted frog. See First Simpson Deel. if 45 ("Low river flows during the reservoir refill season from mid-October to mid-April drop water tables to extremely low levels in riverine wetland habitat, eliminating or severely limiting suitable OSF overwinter habitat between Wickiup and Bend."); id. ifif 96-101. However, I agree with defendants that plaintiffs allege potential adverse effects to the frog and its critical habitat without providing any substantive evidence to quantify the hatm that would result. Without such quantified information, the court cannot find that the potential harm wa!Tants the mandatory relief requested by plaintiffs. See S. Yuba River Citizens League v. Nat'! lYJarine Fisheries Serv., 2013 WL 4094777, at *7-8 (E.D. Cal. Aug. 13, 2013).
Even if plaintiffs established a likelihood of success on their ESA claims and some degree of ilTeparable harm to the frogs, plaintiffs fail to show that the balance of hardships tips in their favor and serves the public interest. Generally, the balance of hardships and the public interest tip "sharply" in favor of protected species. J\!farbled lYJurrelet v. Babbitt, 83 F.3d 1068, 1073 (9th Cir. 1996). Nonetheless, a plaintiff seeking a preliminary injunction has the burden to "present the court with some basis on which it can conclude that an injunction would in fact benefit the protected species." All. for the Wild Rockies v. Kruger, 35 F. Supp. 3d 1259, 1267 (D. Mont. 2014). Here, the record does not clearly support the finding that plaintiffs requested relief would significantly improve conditions for the spotted frog.
Plaintiffs present two options for injunctive relief. The "regulated" option would hold Crane Prairie reservoir at 4,443.3 feet and provide flows of 770 cfs below Wickiup dam. The "run of the river" option would open the controls of the of the Crane Prairie and Wickiup dams to "allow for natural flows to pass through the system and down the river." Pis.' Mem. in Support at 33. Plaintiffs also propose a minimum flow of 40 cfs for Crescent Creek/Little Deschutes. Plaintiffs' biological expe1t, Ms. Simpson, opines that such flows and reservoir levels are necessary to improve habitat conditions for the frog. First Simpson Deel. ~~ 90-92.
Initially, I note that plaintiffs' requested relief is not based on studies or surveys of the frog and the hydrological conditions of the Upper Deschutes River basin over a meaningful period of time. Rather, plaintiffs' proposals are based primarily on the limited observations of one individual over the course of several weeks. First Simpson Deel. ii 18. This fact alone renders the requested relief questionable. Moreover, biologists and other experts disagree with plaintiffs' proposals. See Declarations of Moran, Ramey, Vaughn, Diller. These experts note that certain conditions are beneficial to the frog and abrupt alterations could negatively affect those conditions and actually harm the frog. Diller Deel.~~ 15-16, 20-22; Vaughn Deel.~~ 11, 14-15, 17; Ramey Deel. ~~ 24-29; Moran Deel. Significantly, plaintiffs' experts do not acknowledge other impacts that could result from changes in management of the Upper Deschutes River basin, while defendants' expe1ts contend that plaintiffs' injunction would not produce the hydrological results plaintiffs intend. Moran Deel.~~ 9-10, 17-19, 28-31; Diller~~ 24-25; Ramey Deel.~~ 7, 18, 20-23, 26; Vaughn Deel.~~ 12, 16, 26-29, 32; Willey Deel.~~ 60, 62, 64.
9 - OPINION AND ORDER
It is not the court's role to pick and choose among expert opinions; a "federal court lacks the expertise and/or background in [frog] biology, hydrology, hydraulic engineering, water project operations, and related scientific and technical disciplines that are essential to determining how the water projects should be operated on a real time, day-to-day basis." Gutierrez, 606 F. Supp. 2d at 1214; see also The Lands Council v. McNair, 537 F.3d 981, 988 (9th Cir. 2008) (en bane) (explaining that the court should not "act as a panel of scientists" that "chooses among scientific studies"), overruled on other grounds, Am. Trucking Ass 'ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). Given the genuine dispute among relevant expetts as to whether plaintiffs' proposal will remedy the harm allegedly caused by the dams' operations, plaintiffs fail to show that the requested relief will, in fact, benefit the spotted frog pending resolution of this case. See S. Yuba River Citizens League, 2013 WL 4094777, at *8.
Fmthermore, I agree with defendants that plaintiffs' proposed relief would disrupt the ongoing, collaborative efforts by BOR, the Districts, the State of Oregon, the Tribe and other stakeholders to address long-tenn changes to the dams' operations. Vaughn~ 30; Moran Deel.~~ 11-14; Willey Deel.~~ 14-16, 46-58, 61. Such disruption would not assist the spotted frog in the long term or benefit the public interest.
Finally, the requested relief would create cettain hardship for farmers and ranchers, increase the flood risk for the City of Tumalo, eliminate the use of stored water for at least one irrigation district, and potentially conflict with state water law. Macy Deel.; Johnson Deel. ii~ 44- 45; Ramey Deel. ~ 27; Horrell Deel. ~ 14; Britton Deel. ~ 20; Or. Rev. Stat. § 537.130(1) (impoundment of water must be authorized by the Oregon Water Resources Depmtment). Plaintiffs' iajunction also could affect other threatened species, such as the Columbia River bull 10 - OPINION AND ORDER
trout and the Middle Columbia River steelhead. As the Tribe points out, "the needs of the Oregon spotted frog cannot be considered in a vacuum." Tribe's Amicus Response at 15.
In short, plaintiffs' requested relief essentially would interfere with a collaborative process among relevant public and private stakeholders, potentially harm protected fish and tribal interests, and cause certain harm to stmounding communities and farmers. In comparison, plaintiffs fail to establish a clear likelihood of success on the merits or hTeparable harm to the spotted frog that would be remedied by the relief they seek. Consequently, the balance of hardships does not tip in favor of plaintiffs, and the requested relief would not serve the public interest.
CONCLUSION Accordingly, plaintiffs' motion for preliminary injunction (doc. 20) is DENIED, and plaintiffs'motion for request to stay offotmal opinion and set a trial date (doc. 63) is DENIED. The patiies are directed to contact Paul Bruch, 541-431-4111, to schedule judicial settlement proceedings with Magistrate Judge Coffin.
IT IS SO ORDERED.
Dated this (z~y of April, 2016.
Ann Aiken
United States District Judge
11 - OPINION AND ORDER
Notes
[2] Defendants maintain that plaintiffs must show the dams' operations are likely to cause irreparable harm to their own interests, which can be shown only through harm to the spotted frog as a species. See Winter, 555 U.S. at 20 (explaining that a patiy seeking injunctive relief must show that "he is likely to suffer irreparable harm"); Cetacean Cinty. v. Bush, 386 F.3d 1169, 1179 (9th Cir. 2004) (stating that "individual animals do not have statutory standing to sue" under the ESA).