SIERRA CLUB, a California non-profit corporation; League for Coastal Protection, a California non-profit corporation, Plaintiffs-Appellants, v. John O. MARSH, Jr., Secretary of the Army; Colonel Fred Butler, District Engineer of the U.S. Army Corps of Engineers; Elizabeth Dole, Secretary of Transportation; Ray A. Barnhart, Administrator of the Federal Highway Administration; Leo J. Trombatore, Director of the California Department of Transportation; County of San Diego; City of Chula Vista; Donald P. Hodel, Secretary of the Interior; Santa Fe Land Improvement Company, Defendants-Appellees.
No. 87-5531
United States Court of Appeals, Ninth Circuit
Argued and Submitted April 6, 1987. Decided May 8, 1987.
816 F.2d 1376 | 17 Envtl. L. Rep. 20,717
BOOCHEVER, Circuit Judge
Eileen Sobeck, Washington, D.C., Robert L. Meyer, George B. Blackmar, and Robert M. Gans, San Diego, Cal., for defendants-appellees.
Appeal from the United States District Court for the Southern District of California.
Before GOODWIN, SNEED and BOOCHEVER, Circuit Judges.
BOOCHEVER, Circuit Judge:
The Sierra Club and the League for Coastal Protection appeal the district court‘s denial of their motion for a preliminary injunction halting construction of a combined highway and flood control project in southern San Diego County. They assert that the County of San Diego‘s failure to transfer 188 acres of land necessary to mitigate the project‘s effects on two endangered species of birds and the possibility of increased development on nearby private lands require a reinitiation of consultation between the Fish and Wildlife Service and the Army Corps of Engineers to determine whether additional modifications to the project are needed to prevent injury to the birds. We reverse the denial of the preliminary injunction.
FACTS
The California least tern (Sterne albifrons browni) and the light-footed clapper rail (Rallus longirostris levipes) are listed as endangered species under the Endangered Species Act of 1973,
The federal project consists of the construction of a flood control channel in the flood plain of the Sweetwater River; construction of State Route 54 (SR 54), connecting Interstate Route 5 (I-5) and Interstate Route 805; construction of an interchange between I-5 and SR 54; and widening of I-5. The Army Corps of Engineers (COE or corps) is the federal sponsor of the flood control channel and is providing funding for it; the Federal Highway Administration (FHWA) is supervising and funding the highway construction. Pursuant to an agreement with the federal agencies, the California Department of Transportation (Caltrans) is in charge of the construction of both the highway and flood control elements of the project. The design and construction of the highways and channel are integrated: along much of its length the channel lies in the median of SR 54 and the material excavated from the channel is used to build the highways. There are three phases in the project‘s construction. Phase I has been substantially completed; phase II began in May 1985. The second phase includes work on the interchange between SR 54 and I-5 and on the flood control channel in the vicinity of the interchange. On January 16, 1987, Caltrans started work on the channel and interchange in the area west of I-5, where Sweetwater Marsh is located.
Almost from the project‘s inception in 1968, the Fish and Wildlife Service of the Department of the Interior (FWS or service) has expressed concern about its effects on the birds and other organisms dependent on the estuary for food and shelter. By the passage of the Endangered Species Act of 1973,1 Congress prohibited federal agencies from authorizing, funding, or carrying out actions that would jeopardize the continued existence of endangered species.
In its first opinions, the FWS concluded that the project‘s direct and indirect impacts would jeopardize the continued existence of the rail and tern. The major impact identified by the service was destruction of habitat: construction of the flood control channel would destroy more than 40 acres of marshland.2 It listed nine measures for mitigating the project‘s effects. One measure the FWS considered vital was that the COE acquire and preserve 188 acres of nearby wetlands. Forty-four acres of these “mitigation lands” would replace the acreage occupied by the channel; the remainder would provide additional habitat for the birds and buffer zones to protect the habitat.3 In essence, the FWS was recommending a trade: in exchange for the habitat destroyed or adversely modified by the project, the COE would acquire and preserve from destruction 188 acres of marshland.
The federal agencies assumed throughout the planning process that the federal government would acquire the mitigation lands directly. To do so, Congress must grant the agencies authority to purchase or condemn the property. See United States v. 36.96 Acres of Land, 754 F.2d 855, 858-59 (7th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1956, 90 L.Ed.2d 364 (1986). The agencies had taken the first steps toward obtaining authorization, including preparation of an additional environmental impact statement. Nevertheless, considerably more time would pass before Congress approved the acquisition. To speed the project‘s construction, the County of San Diego (County), the project‘s local sponsor, offered to obtain the property and transfer it to the state or federal agency designated by the COE. The County and the COE signed a contract, referred to as a “Section 221 Agreement,”5 on December 18, 1984. In it, the County promised to transfer the mitigation lands within one year in consideration for the COE‘s commencing construction of the flood control channel.
The County has failed to perform. It requested two extensions of the deadline for performance, which the COE denied. On August 1, 1986, the County, the City of Chula Vista (Chula Vista), and the owner of the land, the Santa Fe Land Improvement Company (Santa Fe), entered into an escrow agreement that conditioned the transfer of the land to the County on the COE‘s issuance of several permits needed for development on nearby private lands. The escrow agreement also reserved seven easements in the mitigation lands, which both the COE and FWS contend would reduce or eliminate the land‘s value as habitat for the endangered species.6
In addition to the County‘s failure to transfer the mitigation lands, the California Coastal Commission approved Chula Vista‘s Local Coastal Program in September 1984. This development program calls for a 440-room hotel and convention center on Gunpowder Point7, high-rise residential buildings on D Street Fill8, and access roads to these developments. In the preparation of the final environmental impact statement by the COE and the biological opinions by the FWS, the agencies did not consider the effects these private projects would have on the adjacent wetlands because the Coastal Commission had not yet approved the plan. The commission had disapproved the entire plan in the spring of 1981 and its decision was upheld by the California Court of Appeal on July 2, 1982. See City of Chula Vista v. Superior Court, 133 Cal.App.3d 472, 183 Cal.Rptr. 909 (1982). The FWS concluded that the failure to acquire the mitigation lands and the commission‘s recent approval of increased development on the nearby uplands were likely to jeopardize the continued existence of the endangered species and requested that the COE reinitiate consultation with the service.
On September 17, 1986, the Sierra Club and the League for Coastal Protection (Sierra Club) filed a complaint under the act‘s citizen suits provision,
The district court held hearings on the motion for preliminary injunctions and denied it. The court also denied the request for a stay of construction pending appeal. The Sierra Club filed an emergency motion with this court for an injunction pending appeal. The motions panel denied the request and scheduled an expedited appeal.
ANALYSIS
I. Standard of Review
Appellate review of a decision to grant or deny a preliminary injunction is restricted to determining whether the lower court abused its discretion or based its decision on an erroneous legal standard or clearly erroneous findings of fact.9 Oakland Tribune, Inc. v. Chronicle Publishing Co., 762 F.2d 1374, 1376 (9th Cir.1985). Unless a district court incorrectly applies the law, its grant or denial of a motion for a preliminary injunction is subject to very limited review. Id. Yet, “[t]his is an equity case, and it is well established that in such a case, although a reviewing court will usually decide only those issues which are necessary to dispose of an appeal, an interlocutory appeal brings the entire case before the court.” Aerojet-General Corp. v. American Arbitration Ass‘n, 478 F.2d 248, 252 (9th Cir.1973). The Sierra Club asked for both preliminary and permanent injunctions on the issues being appealed, and the district court‘s denial of injunctive relief rested primarily on interpretations of law, not on the resolution of factual disputes. In such situations, we consider the merits of the case and enter a final judgment to the extent appropriate. Id. at 252-53; Noxell Corp. v. Firehouse No. 1 Bar-B-Que Restaurant, 760 F.2d 312, 315 (D.C.Cir.1985); West Virginia Ass‘n of Community Health Centers, Inc. v. Heckler, 734 F.2d 1570, 1577-80 & n. 11 (D.C.Cir.1984); Energy Action Educ. Found v. Andrus, 654 F.2d 735, 745-46 & n. 54 (D.C.Cir.1980), rev‘d on other grounds, 454 U.S. 151, 102 S.Ct. 205, 70 L.Ed.2d 309 (1981); Hurwitz v. Directors Guild of America, Inc., 364 F.2d 67, 70 (2d Cir.), cert. denied, 385 U.S. 971, 87 S.Ct. 508, 17 L.Ed.2d 435 (1966). See also Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1421-22 (9th Cir.1984); Leubsdorf, The Standard for Preliminary Injunctions, 91 Harv.L.Rev. 525, 557 (1978) (appellate courts can speed the resolution of disputes by expressing their views of legal issues properly presented on interlocutory appeal); C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice and Procedure Sec. 3921, at 17 (1977 & Supp.1986). The posture of this case is in sharp contrast to three situations we see all too often: (1) parties taking interlocutory appeals where little harm would result from awaiting a final decision, (2) where there is not a fully developed record, or (3) where the dispute turns on the resolution of complex factual issues. In these cases, our review is truly limited and the parties often could have saved their resources and ours by proceeding directly to a trial of the merits. Sports Form, Inc. v. United Press Int‘l, Inc., 686 F.2d 750, 752-53 (9th Cir.1982).
In most cases, a party is entitled to a preliminary injunction after clearly demonstrating: (1) a likelihood of success on the merits and the possibility of irreparable injury or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in favor of the party seeking relief. These are not two independent tests but simply the extremes of the continuum of equitable discretion. Los Angeles Memorial Coliseum Comm‘n v. National Football League, 634 F.2d 1197, 1200-01 (9th Cir.1980). The district court applied this test in denying the Sierra Club‘s motion for injunctive relief.
This is not the test for injunctions under the Endangered Species Act. In TVA v. Hill, 437 U.S. 153, 173, 193-95, 98 S.Ct. 2279, 2291, 2301-02, 57 L.Ed.2d 117 (1978), the Supreme Court held that Congress had explicitly foreclosed the exercise of traditional equitable discretion by courts faced with a violation of section 7 of the ESA. At the time of that decision, section 7 commanded “all federal agencies ‘to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence’ of an endangered species.” 437 U.S. at 173 (quoting
Here we are urged to view the Endangered Species Act “reasonably,” and hence shape a remedy “that accords with some modicum of common sense and the public weal.” But is that our function? We have no expert knowledge on the subject of endangered species, much less do we have a mandate from the people to strike a balance of equities on the side of the Tellico Dam. Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities, thereby adopting a policy which it described as “institutionalized caution.”
Hill, 437 U.S. at 194 (citation to dissent omitted). The Court noted that the “language, history, and structure” of the act “indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities.” Id. at 174. Congress considered and rejected language that would have permitted an agency to weigh the preservation of species against the agency‘s primary mission. Id. at 181-82. In Congress‘s view, projects that jeopardized the continued existence of endangered species threatened incalculable harm: accordingly, it decided that the balance of hardships and the public interest tip heavily in favor of endangered species. Id. at 187-88, 194-95. We may not use equity‘s scales to strike a different balance.
The Supreme Court has adhered to its view that section 7 is a significant restriction on courts’ equity jurisdiction. In holding that the Federal Water Pollution Control Act (FWPCA) does not always require courts to issue injunctions to enforce compliance, the Court contrasted that statute with the ESA:
In TVA v. Hill, we held that Congress had foreclosed the exercise of the usual discretion possessed by a court of equity. There, we thought that “[o]ne would be hard pressed to find a statutory provision whose terms were any plainer” than that before us. 437 U.S., at 173....
It was conceded in Hill that completion of the dam would eliminate an endangered species by destroying its critical habitat. Refusal to enjoin the action would have ignored the “explicit provisions of the Endangered Species Act.” 437 U.S., at 173. Congress, it appeared to us, had chosen the snail darter over the dam. The purpose and language of the statute limited the remedies available to the District Court; only an injunction could vindicate the objectives of the Act.
Weinberger v. Romero-Barcelo, 456 U.S. 305, 313-14, 102 S.Ct. 1798, 1803-04, 72 L.Ed.2d 91 (1982); see also Amoco Prod. Co. v. Village of Gambell, --- U.S. ----, 107 S.Ct. 1396, 1403 n. 9, 94 L.Ed.2d 542 (1987) (same).
If a project is allowed to proceed without substantial compliance with those procedural requirements, there can be no assurance that a violation of the ESA‘s substantive provisions will not result. The latter, of course, is impermissible. See TVA v. Hill, 437 U.S. 153.
We conclude that the Sierra Club is entitled to injunctive relief if the COE violated a substantive or procedural provision of the ESA by allowing construction to continue in the face of the County‘s failure to transfer the mitigation lands or by refusing to reinitiate consultation with the FWS. See Thomas, 753 F.2d at 763-65.
The Ninth Circuit has applied this same test when plaintiffs have alleged violations of other environmental statutes. Save Our Ecosystems v. Clark, 747 F.2d 1240, 1250 (9th Cir.1984) (NEPA); People of Village of Gambell v. Hodel, 774 F.2d 1414, 1422-26 (9th Cir.1985) (Alaska National Interest Lands Conservation Act (ANILCA)). The Supreme Court recently reversed People of Village of Gambell.11 Village of Gambell, 107 S.Ct. 1396. It held that the equitable discretion of courts is not foreclosed absent a clear statement of congressional intent to do so. Id. at 1402-03. The federal defendants suggest that Village of Gambell, in addition to explicitly reversing the Ninth Circuit‘s decision in that case, also implicitly overrules Thomas. We conclude the opposite: Village of Gambell appears implicitly to affirm Thomas. In holding that courts retain their equitable jurisdiction under the ANILCA and the FWPCA, the Court carefully distinguished the language of these statutes with that found in the ESA. Village of Gambell, 107 S.Ct. at 1403 n. 9; Romero-Barcelo, 456 U.S. at 313-14.
III. Substantive Violation of the Act
Agency decisions are reviewed under the Administrative Procedure Act,
Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an “agency action“) is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species....
The COE contends that it was not required to halt construction after the County failed to transfer the mitigation lands. It reasons that neither the FWS nor the Sierra Club has shown (1) that the COE is not likely to acquire the mitigation lands or (2) that the conditions of the escrow agreement between Santa Fe and the County are enforceable. The district court held that Sierra Club was not likely to succeed on the merits of its claims because “positive management action [of the mitigation lands] could be postponed for another year” without jeopardizing the birds. These statements indicate a misunderstanding of the obligation section 7(a)(2) imposes on federal agencies.
The FWS concluded that, along with the other modifications to the project, 188 acres of marshland under the control and management of a public agency were the minimum necessary to mitigate the direct and indirect effects of the project. In essence, the government traded the 44 acres of marshland habitat to be destroyed by construction of a flood control channel for the transfer of 188 acres from private ownership to a publicly owned wildlife refuge. Presently, construction will destroy these 44 acres of habitat and adversely modify others. The 188 acres remain under private control and subject to easements that both the COE and the FWS concede would eliminate their value as a refuge. Santa Fe, the County, and Chula Vista have indicated their intention to increase the use of at least one of the easements. The COE asserts it has no obligation to halt construction until the Sierra Club or the County establishes that the COE will more likely than not lose its cross claim against the County. The COE‘s actions fall far below insuring that the project is not likely to jeopardize the continued existence of the birds. The district court erred in looking only at the potential for harm to the mitigation lands, ignoring the project‘s present effects on other areas of the birds’ habitat. At present, construction is eliminating some of that habitat. The COE is allowing the project‘s adverse effects to accumulate without implementing the mitigation measures or making certain they will occur. The COE is relying on the district court resolving the issue of the disputed easements in its favor. “This reliance on the proposed actions of [others] does not satisfy the [COE]‘s burden of insuring that its actions will not jeopardize the continued existence of the [endangered species].” National Wildlife Fed‘n v. Coleman, 529 F.2d 359, 374 (5th Cir.), cert. denied, 429 U.S. 979, 97 S.Ct. 489, 50 L.Ed.2d 587 (1976). Moreover, we note that the COE took no legal action to force the County to transfer the mitigation lands until almost one year after the deadline for performance had passed, and not until the Sierra Club sued the COE.
Initially, the COE complied with the act by entering into the Section 221 Agreement so as to insure that the project was not likely to jeopardize the endangered species. That insurance lapsed, however, when the COE learned that its expectations under the agreement were not being fulfilled. We hold that the COE is in violation of section 7(a)(2) by allowing destruction or adverse modification of any part of the birds’ habitat without first insuring the acquisition and preservation of the mitigation lands.13
IV. Procedural Violation of the Act
The dispute here is actually between the federal agencies. The COE declined the FWS‘s request to reinitiate the consultation process. The ESA does not give the FWS the power to order other agencies to comply with its requests or to veto their decisions. National Wildlife Fed‘n, 529 F.2d at 371-72; see also 51 Fed.Reg. 19,956 (1986). Section 7 imposes a duty of consultation, however, on all federal agencies.
The Sierra Club asserts the same reasons the FWS did in arguing that the COE is required to resume consultation with the service: (1) the County has failed to transfer the mitigation lands; (2) the disputed easements decrease or eliminate the lands’ value as habitat; and (3) the California Coastal Commission has approved private development of Gunpowder Point at a level greater than anticipated when the FWS issued its biological opinions. The district court relied primarily on the balance of hardships test in denying the injunction. The act does not permit courts to consider the hardship an injunction may impose on the project if endangered species’ habitat is likely to be destroyed. In addition, the court noted that the private development and the escrow conditions were not reasonably certain to occur. As we discuss below in considering the COE‘s contentions, this is not the correct test under the statute and the regulations promulgated under it for determining whether an agency must reinitiate consultation.
Reinitiation of formal consultation is required and shall be requested by the Federal agency or by the Service, where discretionary Federal involvement or control over the action has been retained or is authorized by law and:
(a) ... ;
(b) If new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered....
The Sierra Club‘s argument that the COE did not act in accordance with the law when it refused the FWS‘s request therefore depends on whether the County‘s failure to transfer the mitigation lands and the dispute over the easements trigger reinitiation of consultation under
Moreover, in looking to whether it is reasonably certain that the government will not obtain the mitigation lands free of the easements, the COE has reversed the regulation‘s requirements. The FWS issued its last biological opinion with the assumption that the County would transfer the 188 acres without the seven easements. This is not a question of whether some effect is reasonably certain to occur. Two events definitely have occurred: the County has failed to transfer the land and it has entered into an escrow agreement conditioned on the reservation of seven easements. Nor is there any dispute between the COE and the FWS that the project will jeopardize the continued existence of the birds unless unencumbered title to the mitigation lands is obtained. The area of speculation concerns the probability of overcoming these unanticipated obstacles, i.e. whether the COE will prevail on its cross claim. This is the exact situation envisioned by the requirements for reinitiation of consultation between agencies found in
We do not hold that every modification of or uncertainty in a complex and lengthy project requires the action agency to stop and reinitiate consultation. The circumstances here go far beyond the problems and doubts associated with any large endeavor. The creation and management of a refuge for the birds is the most important of many modifications the FWS considered absolutely necessary to insure that the project was not likely to jeopardize their continued existence. The land for this refuge should have been acquired more than one year ago. It is still in private hands and subject to an escrow with conditions that the COE concedes would diminish or eliminate its value as a preserve. In the cross claim, the federal defendants face parties with substantial resources and claims that we cannot say are frivolous. The institutionalized caution mandated by section 7 of the ESA requires the COE to halt all construction that may adversely affect the habitat until it insures the acquisition of the mitigation lands or modifies the project accordingly. We are aware that our decision may delay the public‘s enjoyment of the project‘s benefits and may significantly increase the costs. We note, however, that the contract requires a moratorium on construction during the tern‘s breeding period from May to August. Depending on the promptness and outcome of the consultation, there may be little, if any, delay. We conclude, however, that regardless of any consequences of delay, the ESA requires this result.
V. Relief
The Sierra Club asks us to enjoin all work on the combined project until the County transfers the mitigation lands and the COE completes a new consultation with the FWS. The federal defendants suggest that any injunction should be limited to a prohibition of construction west of I-5, the location of the birds’ habitat. We conclude that this is appropriate relief for the COE‘s substantive violation. It will prevent further loss or adverse modification of habitat while the district court resolves the cross claim for the mitigation lands.
The appropriate relief for the COE‘s procedural violation presents a more difficult problem. The process of assessing the project‘s effects, consulting with the FWS on ways to avoid these effects, and issuing a biological opinion with reasonable and prudent alternatives exists to ensure that agency actions will not jeopardize endangered species. Thomas, 753 F.2d at 764. Congress intended that the consultation process would operate so as to prevent substantive violations of the act. See H.R.Conf.Rep. No. 1804, 95th Cong., 2d Sess. 18-19, reprinted in 1978 U.S.Code Cong. & Admin.News 9453, 9484, 9486. To this end, section 7 contains a statutory prohibition against “any irreversible or irretrievable commitment of resources ... which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures” during the consultation process.
We conclude that the statute dictates that if an agency plans to mitigate its project‘s adverse effects on an endangered species by acquiring habitat and creating a refuge, it must insure the creation of that refuge before it permits destruction or adverse modification of other habitat. The Sierra Club is entitled to (1) an injunction against any work west of I-5 until the federal defendant‘s cross claim is resolved, (2) a declaration that the COE violated the ESA by refusing to reinitiate consultation, and (3) an injunction against all work on the project unless the COE reinitiates consultation within thirty days of the issuance of the mandate in this appeal, with the injunction continuing until such time as consultation is reinitiated. We reverse the district court‘s order and remand the case for trial of the cross claim and entry of an order consistent with this opinion.
The Sierra Club‘s request for attorneys’ fees under the Equal Access to Justice Act,
REVERSED and REMANDED.
Notes
The following easements are set out in Exhibit 2 of the escrow agreement:1 Owner‘s Grant Deed conveying the Flood Control Property shall be placed in Escrow at such time as the specific area to be conveyed is agreed upon, in substantially the form as shown in Exhibit 2, and containing the reservations or Grants of Easement as shown thereon. It is also acknowledged and agreed that the final boundary of the Property for the Flood Control Project shall be subject to final adjustment.
....
4 Owner/Optionee shall obtain, prior to the close of Escrow, all necessary permits as required by
Section 404 of the Clean Water Act of 1977 , as amended, as well as any other permits that may be required from any Federal agencies, to allow the construction of the Owner‘s/Optionee‘s Chula Vista Mid-Bay Front Project and, in addition, that may be required to allow the construction of the City of Chula Vista‘s access road to the Gunpowder Point.
- Access Easement on South Levee Road to Gunpowder Point for Approved Commercial, Recreational, Nature Interpretive Center and Related Vehicle and Pedestrian Uses.
- Access Easement on North Levee Road to Gunpowder Point for Emergency Uses.
- Easement Across Entire Wetlands Complex for Habitat Maintenance, Restoration and Enhancement Consistent with the Chula Vista Local Coastal Plan.
- Access Easement on Tidelands Avenue Crossing of Sweetwater Marsh, as Shown in Chula Vista Local Coastal Plan.
- Access Easements for Route 54 Ramps for “D” Street Fill. As Approved by California Coastal Commission.
- A permanent and non-exclusive easment and right-of-way over, under, upon and across the Upland 50’ of Wetlands Buffers as shown in Approved Local Coastal Plan for ingress, egress and Access over, upon and under all of such property; for construction, reconstruction, maintenance, repair, replacement, and use of streets, utility lines, pipes, drainage structures, pedestrian walkways and bicycle paths, and other installations of every sort; for grading, removal, replacement, importation, and treatment of soil and rock; for access to structures and the construction, reconstruction, maintenance, repair, replacement and use thereof; and for all other purposes necessary or incidental to the development of Grantor‘s Chula Vista Bay Front Project and each and every part thereof, together with the right to grant the same, or any part thereof, to others.
- Access Easement for Improvement, Maintenance and Use of Kelp Boat Basin on Gunpowder Point Including for Recreational Boating Use.
107 S.Ct. at 1402 (emphasis supplied by the Court).Relying on its earlier decision in Save Our Ecosystems v. Clark, 747 F.2d 1240, 1250 (1984), the court stated: ” ‘Irreparable damage is presumed when an agency fails to evaluate thoroughly the environmental impact of a proposed action.’ ” 774 F.2d, at 1423. It ruled that “injunctive relief is the appropriate remedy for a violation of an environmental statute absent rare or unusual circumstances.” Ibid. “Unusual circumstances” are those in which an injunction would interfere with a long-term contractual relationship, Forelaws on Board v. Johnson, 743 F.2d 677 (CA9 1984), or would result in irreparable harm to the environment, American Motorcyclist Assn. v. Watt, 714 F.2d 962, 966 (CA9 1983). 774 F.2d, at 1423-25. The court found no such circumstances in the instant case.
a. Provide, without cost to the United States, all lands, easements, and rights-of-way necessary for the construction of the Project, including lands necessary for preservation of endangered species and mitigation for project effects. The minimum real estate interests to be acquired by the County are fee title or permanent easements, for levees, walls and other permanent structures; and adequate access thereto.
....
g. Transfer title, in perpetuity, of all preservation and mitigation land (188 acres, subject to actual survey) within one year of the date of the signing of this agreement, to the U.S. Fish and Wildlife Service, to the California Department of Fish and Game or to another public agency approved by the Contracting Officer for preservation in public trust.
TVA v. Hill, 437 U.S. at 172-73.It may seem curious to some that the survival of a relatively small number of three-inch fish among all the countless millions of species extant would require the permanent halting of a virtually completed dam for which Congress has expended more than $100 million. The paradox is not minimized by the fact that Congress continued to appropriate large sums of public money for the project, even after congressional Appropriations Committees were apprised of its apparent impact upon the survival of the snail darter. We conclude, however, that the explicit provisions of the Endangered Species Act require precisely that result.
It does not allege, however, that the COE has modified the project.(c) If the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion....