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National Wildlife Federation v. National Marine Fisheries Service



Defendants National Marine Fisheries Service (NMFS) and the Army Corps of Engineers petitioned the Ninth Circuit to review a U.S. District Court for the District of Oregon decision to grant a preliminary injunction to plaintiffs National Wildlife Federation (NWF) requiring federal dam operators to spill water over five dams on the Columbia and Snake rivers during summer 2005 to facilitate the survival of salmon migrating to the Pacific Ocean. The Ninth Circuit affirmed the preliminary injunction, but remanded the question of whether the injunction should be modified to the district court.

Snake River fall chinook salmon were listed as a threatened species under the Endangered Species Act (ESA)[1] in 1992. As required by section 7 of the ESA,[2] the Federal Columbia River Power System, which operates 14 sets of dams on the Columbia River system, consulted with National Marine Fisheries Service (NMFS) to prepare a Biological Opinion (BiOp) on whether dam operations would “jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat . . . .”[3] In 2000, NMFS issued a BiOp which found the effects of continued dam operations to jeopardize salmon, but concluded that off-site mitigation activities unrelated to the dam operations would avoid jeopardy for the salmon. NWF challenged the BiOp, and a district court found it to be invalid because the agency had reached its no-jeopardy conclusion by relying on off-site federal mitigation actions which were not included in the environmental baseline of its analysis, as well as on non-federal mitigation actions not reasonably certain to occur.

The court remanded to give the agency the opportunity to correct the 2000 BiOp, but the agency instead issued a new BiOp in 2004. The 2004 BiOp classified the existing dams, nondiscretionary dam operations, and all past and present impacts from those operations as part of the environmental baseline in its jeopardy analysis. By evaluating only the discretionary operation of the dams, NMFS determined the dam operations would not jeopardize the continued existence of any listed species or threaten critical habitat. The district court found the 2004 BiOp to be invalid. It held the BiOp was both procedurally and substantively flawed under the ESA because the jeopardy analysis failed to include all the elements of the proposed action; it failed to consider the impacts of the dam operations, the environmental baseline, and the cumulative impacts as the basis for the jeopardy analysis; the critical habitat determination was flawed because it failed to make a separate determination of whether the dam operations would destroy or adversely modify critical habitat for both the survival and the recovery of listed species; and it failed to address the recovery and survival of listed species. After declaring the BiOp invalid, the district court granted NWF’s request for a preliminary injunction requiring spills at five of the dams. The Ninth Circuit denied NMFS’s motion for an emergency stay of the injunction pending the appeal, but it ordered this expedited hearing of the appeal.

A district court’s decision to grant a preliminary injunction is reversible on appeal only if it was an abuse of discretion or if it was based on “an erroneous legal standard or on clearly erroneous findings of fact.”[4] When a preliminary injunction is issued pursuant to the ESA, Congress has mandated courts should strike a balance in favor of the endangered species, rather than apply a traditional balancing of the competing interests of the parties.[5] The Ninth Circuit determined the district court had thus applied the correct legal standard in issuing the injunction.

The Ninth Circuit held the preliminary injunction was not based on clearly erroneous findings of fact. An appellate court will consider factual findings to be “clearly erroneous if it is implausible in light of the record, viewed in its entirety.”[6] The district court’s finding that the federal dam operations contributed to the salmon’s endangerment was hotly contested at trial. NMFS disputed the district court’s finding that dam operations were detrimental to the salmon, and cited data indicating that salmon return runs had increased. NWF argued that the increased returns were the result of large releases of hatchery fish, and that the federal agencies’ own data showed high levels of fish kills from the dams. The Ninth Circuit noted, however, that it was undisputed that fall chinook salmon were endangered species under the ESA, and that it was not the appellate court’s place to resolve contested facts. The court concluded the district court’s factual finding of irreparable harm to salmon was not clearly erroneous.

The Ninth Circuit next determined the district court did not abuse its discretion in granting the preliminary injunction. The test for determining whether an injunction was appropriate when the ESA has been violated is whether an injunction is necessary to “effectuate the congressional purpose behind the statute” by requiring both substantive and procedural compliance with the ESA.[7] The court determined the district court’s rejection of the BiOp the dam’s operations were premised upon and its conclusion that continued operations would result in irreparable harm to salmon were “precisely the circumstances” under which issuing an injunction was appropriate.[8] The Ninth Circuit distinguished this case from one of its own recent decisions, in which it concluded the district court had misread the governing statute, and that the agency had acted in conformity with the statute.[9] In contrast, in this case the district court had statutory support, was faced with an agency that had altered its own interpretation of the statute, and the record contained a long history of dam operations. In addition, the Ninth Circuit concluded when balancing the equities in review of an injunction issued under the ESA “the balance has been struck in favor of affording Endangered Species the highest of priorities.”[10] Thus, the Ninth Circuit concluded the district court’s grant of a preliminary injunction was not a reversible error.

The court next examined the nature and scope of relief granted by the district court. Because the dam operations were ongoing, the district court had to decide between allowing the continued operation of the dams at the status quo, which it determined would cause irreparable harm to species, or order modifications in the operations. In deciding to order spills, the district court took into consideration expert testimony regarding the effectiveness of spills for fish passage, the results of previous spills, and NMFS conclusions in the 2000 BiOp that salmon survival was highest through spills when compared to alternative passage methods. While NMFS offered evidence which raised “significant and serious concerns”[11] regarding effectiveness of spills on fish passage survival rates, the existence of this evidence alone did not rise to the level of a “clear error of judgment”[12] necessary to constitute a reversible abuse of discretion.

NMFS argued the district court was required to defer to agency expertise as to the best course of action. However, the court had already invalidated the 2004 BiOp, the agency’s basis for the dam operations, because its conclusions were based on flawed analysis, and it was premised on a statutory interpretation of environmental baseline which was a complete reversal from the agency’s own earlier interpretation. Agency interpretations of a statute conflicting with the agency’s own earlier interpretations are “entitled to considerably less deference” than consistent agency interpretations.[13] In light of NMFS conclusions in its 2000 BiOp that continued operations would jeopardize salmon, and in the absence of a valid BiOp, the Ninth Circuit found there to be “a more than sufficient basis” for the district court to order spills.[14] Therefore, the district court had not abused its discretion in ordering the spills.

The Ninth Circuit finally addressed NMFS argument that the injunction was not narrowly tailored and thus should be vacated, although the agency did not indicate how the injunction should be narrowed. The court refused to vacate injunction. However, it noted issues raised after the injunction was ordered may require the district court to modify its order. The Ninth Circuit denied both parties’ motions to supplement the record, noting it was inappropriate to decide issues of fact for the first time on appeal. It remanded the question of whether the injunction should be modified back to the district court. In addition, intervener BPA Customer Group argued the injunction should be vacated on the grounds it “insufficiently relates the remedy to the alleged ESA violation.”[15] Because the district court did not address this issue when it ordered the preliminary injunction, the Ninth Circuit remanded the question to the district court as well.

In conclusion, the Ninth Circuit affirmed the district court’s preliminary injunction ordering spills at several dams on the Columbia and Snake rivers, and remanded the question of whether the injunction should be modified.

[1] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (2000).

   [2] Id. § 1536(a)(2).

[3] 50 C.F.R. § 402.14(h) (2005).

[4] United States v. Peninsula Commc’ns, Inc., 287 F.3d 832, 839 (9th Cir. 2002).

[5] Tenn. Valley Auth. v. Hill, 437 U.S. 153, 194 (1978).

[6] Serv. Employees Int’l Union v. Fair Political Practices Comm’n, 955 F.2d 1312, 1317 n.7 (9th Cir. 1992).

[7] Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1177 (9th Cir. 2002) (citing Tenn. Valley Auth., 437 U.S. at 194).

[8] Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 422 F.3d 782, 796 (9th Cir. 2005).

[9] Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep’t of Agric., 415 F.3d 1078, 1090 (9th Cir. 2005).

[10] Tenn. Valley Auth., 437 U.S. at 194.

[11] Nat’l Wildlife Fed’n, 422 F.3d at 798.

[12] Secs. & Exch. Comm’n v. Coldicutt, 258 F.3d 939, 941 (9th Cir. 2001).

[13] Watt v. Alaska, 451 U.S. 259, 273 (1981).

[14] Nat’l Wildlife Fed’n, 422 F.3d at 797.

[15] Id. at 800.

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