FILED NOT FOR PUBLICATION APR 04 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEFENDERS OF WILDLIFE and No. 17-35712 NATURAL RESOURCES DEFENSE COUNCIL, D.C. No. 4:15-cv-00014-BMM
Plaintiffs-Appellees, MEMORANDUM* v.
UNITED STATES ARMY CORPS OF ENGINEERS; et al.,
Defendants-Appellants,
and
LOWER YELLOWSTONE IRRIGATION PROJECT BOARD OF CONTROL; et al.,
Intervenor-Defendants.
DEFENDERS OF WILDLIFE and No. 17-35713 NATURAL RESOURCES DEFENSE COUNCIL, D.C. No. 4:15-cv-00014-BMM
Plaintiffs-Appellees,
v. UNITED STATES ARMY CORPS OF ENGINEERS; et al.,
Defendants,
LOWER YELLOWSTONE IRRIGATION PROJECT BOARD OF CONTROL; et al.,
Intervenor-Defendants- Appellants.
Appeal from the United States District Court for the District of Montana Brian M. Morris, District Judge, Presiding
Argued and Submitted March 5, 2018 Portland, Oregon
Before: N.R. SMITH and HURWITZ, Circuit Judges, and CURIEL,** District Judge.
The U.S. Army Corps of Engineers appeals the district court’s grant of the
preliminary injunction of its project on the Lower Yellowstone River. We vacate
the injunction.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Gonzalo P. Curiel, United States District Judge for the Southern District of California, sitting by designation. 2 We review the district court’s decision to issue a preliminary injunction for
an abuse of discretion. Enyart v. Nat’l Conference of Bar Exam’rs, Inc., 630 F.3d
1153, 1159 (9th Cir. 2011). “[T]he first step of our abuse of discretion test is to
determine de novo whether the [district] court identified the correct legal rule to
apply to the relief requested.” Id. (quoting United States v. Hinkson, 585 F.3d
1247, 1261-62 (9th Cir. 2009) (en banc)). Also, “[a] plaintiff seeking a preliminary
injunction must establish that he is likely to succeed on the merits, that he is likely
to suffer irreparable harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the public interest.” Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
1. Irreparable Harm, Balance of Equities, and Public Interest. The law is
clear that only harm that will occur “in the absence of preliminary relief” may be
considered in determining irreparable harm. Id. A court may not consider harm that
will occur irrespective of an injunction, i.e. harm that the award of an injunction
will not alleviate or prevent. Because the Defenders of Wildlife (DOW) did not
seek to enjoin the operation and maintenance of the existing weir, the district court
erred when it considered the harm caused by the “continued operation of the
existing weir” in its assessment of the irreparable harm attributable to the proposed
project.
3 The district court again erred when it flipped the burden of proof and
required the Corps to prove that the proposed project would allow successful pallid
sturgeon passage around the weir. Under the irreparable harm analysis, the Corps
had no burden to prove that the proposed project would improve the plight of the
pallid sturgeon over the status quo. Rather, DOW had the burden of proving some
irreparable harm that would result specifically from the construction of the
proposed project.
Lastly, absent evidence of irreparable harm caused by the project, the district
court had no basis to conclude that the balance of equities or public interest favored
an injunction.
2. Likelihood of Success on the Merits. The district court also erred in
concluding that DOW had established a likelihood of success on the merits of its
claims under the Endangered Species Act (ESA), the National Environment
Protection Act (NEPA), and the Clean Water Act (CWA). On each of the claims at
issue, the district court erred in supplanting the deferential standard of review
under the Administrative Procedure Act (APA). At its core, this standard simply
requires an agency to “articulate a rational connection between the facts found and
the conclusions made.” Wild Fish Conservancy v. Salazar, 628 F.3d 513, 529 (9th
Cir. 2010) (quoting Pac. Coast Fed’n of Fishermen’s Ass’ns v. U.S. Bureau of
4 Reclamation, 426 F.3d 1082, 1091 (9th Cir. 2005)). Under this deferential
standard, we find no basis to conclude that DOW was likely to succeed on the
merits of its claims.
A. The ESA. The ESA requires a federal agency to ensure that its proposed
project “is not likely to jeopardize the continued existence of any endangered
species.” 16 U.S.C. § 1536(a)(2). To jeopardize is to “reduce appreciably the
likelihood of both the survival and recovery of a listed species in the wild by
reducing the reproduction, numbers, or distribution of that species.” 50 C.F.R.
§ 402.02. The agency articulated a reasoned basis for the no-jeopardy finding in its
Biological Opinion. Indeed, the Incidental Take Statement and analysis of recovery
issues support the agency’s conclusion. First, the agency’s approved incidental
take represents a substantial reduction in the impairment of breeding caused in the
project’s absence and is thus consistent with the agency’s no-jeopardy finding.
Second, although not identifying a quantifiable recovery goal, the Biological
Opinion adequately addressed the project’s positive impact on species recovery.
Although analysis of the Incidental Take Statement and identification of a
recovery goal may sometimes be needed to explain the reasoned basis for an
agency’s no-jeopardy finding, see, e.g., Southwest Center for Biological Diversity
v. Bartel, 470 F. Supp. 2d 1118, 1146-48 (S.D. Cal. 2006) (finding the agency’s no
5 jeopardy conclusion unreasonable where the incidental take authorized “an
additional 12% of habitat loss” without explanation (emphasis added)); National
Wildlife Federation v. National Marine Fisheries Service, 524 F.3d 917, 936 (9th
Cir. 2008) (identifying “some attention to recovery issues” as useful to support a
no jeopardy conclusion), such analyses were not required here. The district court
committed legal error when it treated the absence of a specific Incidental Take
Statement analysis and the failure to identify a quantifiable recovery goal as
technical deficiencies that precluded a no-jeopardy finding in the Biological
Opinion.
B. NEPA. Under NEPA, an agency must “rigorously explore and objectively
evaluate all reasonable alternatives” to a proposed project. 40 C.F.R. § 1502.14(a).
Center for Biological Diversity v. United States Department of the Interior
Free access — add to your briefcase to read the full text and ask questions with AI
FILED NOT FOR PUBLICATION APR 04 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEFENDERS OF WILDLIFE and No. 17-35712 NATURAL RESOURCES DEFENSE COUNCIL, D.C. No. 4:15-cv-00014-BMM
Plaintiffs-Appellees, MEMORANDUM* v.
UNITED STATES ARMY CORPS OF ENGINEERS; et al.,
Defendants-Appellants,
and
LOWER YELLOWSTONE IRRIGATION PROJECT BOARD OF CONTROL; et al.,
Intervenor-Defendants.
DEFENDERS OF WILDLIFE and No. 17-35713 NATURAL RESOURCES DEFENSE COUNCIL, D.C. No. 4:15-cv-00014-BMM
Plaintiffs-Appellees,
v. UNITED STATES ARMY CORPS OF ENGINEERS; et al.,
Defendants,
LOWER YELLOWSTONE IRRIGATION PROJECT BOARD OF CONTROL; et al.,
Intervenor-Defendants- Appellants.
Appeal from the United States District Court for the District of Montana Brian M. Morris, District Judge, Presiding
Argued and Submitted March 5, 2018 Portland, Oregon
Before: N.R. SMITH and HURWITZ, Circuit Judges, and CURIEL,** District Judge.
The U.S. Army Corps of Engineers appeals the district court’s grant of the
preliminary injunction of its project on the Lower Yellowstone River. We vacate
the injunction.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Gonzalo P. Curiel, United States District Judge for the Southern District of California, sitting by designation. 2 We review the district court’s decision to issue a preliminary injunction for
an abuse of discretion. Enyart v. Nat’l Conference of Bar Exam’rs, Inc., 630 F.3d
1153, 1159 (9th Cir. 2011). “[T]he first step of our abuse of discretion test is to
determine de novo whether the [district] court identified the correct legal rule to
apply to the relief requested.” Id. (quoting United States v. Hinkson, 585 F.3d
1247, 1261-62 (9th Cir. 2009) (en banc)). Also, “[a] plaintiff seeking a preliminary
injunction must establish that he is likely to succeed on the merits, that he is likely
to suffer irreparable harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the public interest.” Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
1. Irreparable Harm, Balance of Equities, and Public Interest. The law is
clear that only harm that will occur “in the absence of preliminary relief” may be
considered in determining irreparable harm. Id. A court may not consider harm that
will occur irrespective of an injunction, i.e. harm that the award of an injunction
will not alleviate or prevent. Because the Defenders of Wildlife (DOW) did not
seek to enjoin the operation and maintenance of the existing weir, the district court
erred when it considered the harm caused by the “continued operation of the
existing weir” in its assessment of the irreparable harm attributable to the proposed
project.
3 The district court again erred when it flipped the burden of proof and
required the Corps to prove that the proposed project would allow successful pallid
sturgeon passage around the weir. Under the irreparable harm analysis, the Corps
had no burden to prove that the proposed project would improve the plight of the
pallid sturgeon over the status quo. Rather, DOW had the burden of proving some
irreparable harm that would result specifically from the construction of the
proposed project.
Lastly, absent evidence of irreparable harm caused by the project, the district
court had no basis to conclude that the balance of equities or public interest favored
an injunction.
2. Likelihood of Success on the Merits. The district court also erred in
concluding that DOW had established a likelihood of success on the merits of its
claims under the Endangered Species Act (ESA), the National Environment
Protection Act (NEPA), and the Clean Water Act (CWA). On each of the claims at
issue, the district court erred in supplanting the deferential standard of review
under the Administrative Procedure Act (APA). At its core, this standard simply
requires an agency to “articulate a rational connection between the facts found and
the conclusions made.” Wild Fish Conservancy v. Salazar, 628 F.3d 513, 529 (9th
Cir. 2010) (quoting Pac. Coast Fed’n of Fishermen’s Ass’ns v. U.S. Bureau of
4 Reclamation, 426 F.3d 1082, 1091 (9th Cir. 2005)). Under this deferential
standard, we find no basis to conclude that DOW was likely to succeed on the
merits of its claims.
A. The ESA. The ESA requires a federal agency to ensure that its proposed
project “is not likely to jeopardize the continued existence of any endangered
species.” 16 U.S.C. § 1536(a)(2). To jeopardize is to “reduce appreciably the
likelihood of both the survival and recovery of a listed species in the wild by
reducing the reproduction, numbers, or distribution of that species.” 50 C.F.R.
§ 402.02. The agency articulated a reasoned basis for the no-jeopardy finding in its
Biological Opinion. Indeed, the Incidental Take Statement and analysis of recovery
issues support the agency’s conclusion. First, the agency’s approved incidental
take represents a substantial reduction in the impairment of breeding caused in the
project’s absence and is thus consistent with the agency’s no-jeopardy finding.
Second, although not identifying a quantifiable recovery goal, the Biological
Opinion adequately addressed the project’s positive impact on species recovery.
Although analysis of the Incidental Take Statement and identification of a
recovery goal may sometimes be needed to explain the reasoned basis for an
agency’s no-jeopardy finding, see, e.g., Southwest Center for Biological Diversity
v. Bartel, 470 F. Supp. 2d 1118, 1146-48 (S.D. Cal. 2006) (finding the agency’s no
5 jeopardy conclusion unreasonable where the incidental take authorized “an
additional 12% of habitat loss” without explanation (emphasis added)); National
Wildlife Federation v. National Marine Fisheries Service, 524 F.3d 917, 936 (9th
Cir. 2008) (identifying “some attention to recovery issues” as useful to support a
no jeopardy conclusion), such analyses were not required here. The district court
committed legal error when it treated the absence of a specific Incidental Take
Statement analysis and the failure to identify a quantifiable recovery goal as
technical deficiencies that precluded a no-jeopardy finding in the Biological
Opinion.
B. NEPA. Under NEPA, an agency must “rigorously explore and objectively
evaluate all reasonable alternatives” to a proposed project. 40 C.F.R. § 1502.14(a).
Center for Biological Diversity v. United States Department of the Interior
(“CBD”) makes clear that an agency violates NEPA when it arbitrarily reaches a
conclusion without analyzing a critical distinction between two proposed
alternatives. 623 F.3d 633, 636, 646 (9th Cir. 2010) (“[T]he BLM assumed without
analysis that the [Mining Plan of Operations] process would impose no constraints
on, and would have no effect on, the manner in which Asarco would conduct new
mining operations on the exchanged land.” (emphasis added)).
6 Here, the district court acknowledged the agency’s analysis of the differing
environmental consequences of the various alternatives, including the pumping
alternative DOW proposes. Under the standard of review identified in CBD, the
district court’s analysis does not support its arbitrary and capricious finding.
C. The CWA. The CWA prohibits projects that discharge dredged or fill
material “if there is a practicable alternative to the proposed discharge which
would have less adverse impact on the aquatic ecosystem.” 40 C.F.R. § 230.10(a).
The district court concluded that DOW’s CWA claim was likely to succeed on the
merits because the Corps failed to make a finding that the multiple pump
alternative was impracticable. But, the Corps expressly found that there was no
practicable alternative to the proposed project that would have less adverse impact
on the sturgeon populations, and that finding was supported by ample evidence in
the record. The district court thus abused its discretion in failing to take this finding
into account in analyzing the likelihood of success on the merits of the CWA
claim.
We therefore VACATE the preliminary injunction.