UNITED STATES DISTRICT COURT DISTRICT OF OREGON

Transcription

1 Karen Budd-Falen Marc R. Stimpert Hertha L. Lund Budd-Falen Law Offices, L.L.C. 300 East 18 th Street P.O. Box 346 Cheyenne, Wyoming Telephone: (307) Facsimile: (307) Attorneys for Defendant-Intervenors Washington Farm Bureau Federation UNITED STATES DISTRICT COURT DISTRICT OF OREGON NATIONAL WILDLIFE FEDERATION, et al. ) Civ. No. CV RE ) Plaintiffs, ) ) v. ) ) NATIONAL MARINE FISHERIES SERVICE, ) ) Defendant, )JOINT DEFENDANT- )INTERVENORS OPPOSITION and )TO PLAINTIFFS MOTION )FOR PRELIMINARY WASHINGTON FARM BUREAU FEDERATION, et al )INJUNCTION ) Defendant-Intervenors. )

2 TABLE OF CONTENTS I. FACTUAL BACKGROUND...1 A. The Biological and Economic Impacts of Eliminating Summer Spill...1 B. The Regional Collaborative Process Which Resulted in the BPA/Corps 2004 FCRPS Summer Juvenile Bypass Operation Plan...4 C. The BPA/Corps 2004 FCRPS Summer Juvenile Bypass Operation Plan and the Federal Agencies Statements of Decisions Implementing that Plan...6 II. LITIGATION PROCEDURAL AND STATUTORY BACKGROUND...8 A. River Users Interest in this Preliminary Injunction...8 B. ESA Section 7 Process and the 2000 BiOp...9 III. AN INJUNCTION SHOULD NOT ISSUE IN THIS CASE...11 A. Standard of Review for Injunctions...11 B. Plaintiffs Lack of Probable Success on the Merits - This Court Lacks Jurisdiction Over Issues Raised Plaintiffs have not complied with the notice requirements of the ESA The Ninth Circuit has exclusive jurisdiction to consider challenges to BPA s decision regarding bypass flows There is no final agency action under the APA for the court to review. 18 C. An Injunction is Not Necessary Because there is no Immediate Irreparable Harm19 D. An Injunction Would Be Damaging To the Region...23 IV. THIS COURT SHOULD FOLLOW THE WELL FOUNDED DECISIONS OF OTHER COURTS IN SIMILAR SITUATIONS...24 V. CONCLUSION...26 TABLE OF AUTHORITIES i

3 CASES Am Canoe Ass n, Inc. v. U.S. Envtl. Prot. Agency, 30 F.Supp.2d 908, 927 (E.D. Va. 1998)...13 American Greyhound Racing, Inc. v. Hull, 305 F.3d 1015 (9 th Cir. 2002)...16 Amoco Production v. Gambell, 480 U.S. 531, 542 (1987)...11 Aviation Consumer Action Project v. Washburn, 535 F.2d 101, (D.C. Cir. 1976)...12 Bays Legal Fund v. Browner, 828 F.Supp. 102 (D.Mass. 1993)...20 Bennett v. Spear, 520 U.S. 154, (1997)...18 Brem-Air Disposal v. Cohen, 156 F.3d 1002, 1005 (9 th Cir. 1998)...13, 15 Central Montana Elec. Power Coop. Inc. v. BPA, 840 F.2d 1472, (9 th Cir. 1988)...16 Citizens Interested in Bull Run Inc. v. Edrington, 781 F.Supp. 1502, 1509 (D.Or. 1991)...13 Consolidated Coal v. Disabled Miners of Southern West Virginia, 442 F.2d 1261, 1267 (4 th Cir. 1971)...12 Dawavendewa v. Salt River Project Agric. Imprv. & Power Dist., 276 F.3d1150, 1155 (9 th Cir. 2002)...17 Greenpeace v. National Marine Fisheries Service, 106 F.Supp.2d 1066 (W.D. Wash. 2000)...20 Hawaii County Green Party v. Clinton, 124 F.Supp.2d 1173, 1193 (D.Haw. 2000)...13 Hells Canyon Preseration Council v. Jacoby, 9 F.Supp.2d 1216 (D.Or. 1998)...11, 21 ii

4 Idaho Department of Fish and Game v. NMFS, 850 F.Supp. 866, 899 (D.Or. 1994)...22, 25 In re Operation of Missouri River Litigation, 2004 WL (June 21, 2004)...22, 23, 24, 25 Lamb-Weston v. McCain Foods, 941 F.2d 970, 974 (9 th Cir. 1976)...12 Lopez v. Heckler, 713 F.2d 1432, 1435 (9 th Cir. 1983)...17 Makah Indian Tribe v. Verity, 910 F.2d 555, 558 (9 th Cir. 1990)...17 Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378 (1989)...22, 27 Montana Wilderness Ass n Inc. v. U.S. Forest Serv., 314 F.3d 1146, 1150 (9 th Cir. 2003)...18 National Wildlife Federation v. Cosgriffe, 21 F.Supp.2d 1211 (D.Or. 1998)...11 Northwest Resource Information Center, Inc. v. National Marine Fisheries Service, 818 F.Supp. 1399, 1403 (W.D. Wash. 1993)...15 Norton v. Southern Utah Wilderness Alliance, 542 U.S. (June 14, 2004)...18, 24, 25 Oregon Natural Resources Council v. U.S. Forest Serv., 838 F,2d 842, 851 (9 th Cir. 1987)...14 Pacific Powers and Light Co. v. BPA, 818 F.Supp. 1399, 1403 (W.D. Wash. 1993)...15 Pacific Rivers Council v. Thomas, 1994 WL (D.Or. Oct. 20, 1994) * Pacific Rivers Council v. Thomas, 30 F.3d 1050, (9 th Cir. 1994)...21 Resources Ltd., Inc. v. Robertson, 35 F.3d 1300, 1304 (9 th Cir. 1993)...14, 15 iii

5 Regents of Univ. of Cal. v. ABC, Inc., 747 F.2d 511, 515 (9 th Cir. 1984)...11 Rodde v. Bonta, 357 F.3d 988, 94 (9 th Cir. 2004)...11 Save the Yaak v. Block, 840 F.2d 714, 721 (9 th Cir. 1988)...13 Sierra Club v. Marsh, 816 F.2d 1376, 1389 (9 th Cir. 1987)...20, 22 Southwest Ctr. For Biological Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515, 520 (9 th Cir. 1998)...13 Stop H-3 Ass n v. Dole, 740 F.2d 1442 (9 th Cir. 1984)...14 Thomas v. Peterson, 753 F.2d 754, 765 (9 th Cir. 1985)...20 TVA v. Hill, 437 U.S. 153 (1978)...19 United States v. Laedral Mfg., 855 F.Supp. 1219, 1226 (D.Or. 1994)...12 STATUTES 5 U.S.C , 14, 18, U.S.C U.S.C. 839f...16, U.S.C. 1536(a)(2)...11, U.S.C. 1536(a)(d)&(d) U.S.C. 1536(b)(3)(A) U.S.C. 1536(b)(4)...10, 19 iv

6 16 U.S.C. 1536(d) U.S.C. 1540(g) U.S.C. 1540(g)(1) U.S.C. 1540(g)(1)(C)...12, U.S.C. 1540(g)(2)(C) U.S. 911 (1971)...13 Endangered Species Act, , 21 RULES AND REGULATIONS 50 C.F.R. 402,14(d) C.F.R (h) C.F.R (I)...10 Fed.R.Civ.P. 19(a)...16, 17 Fed.R.Civ.P. 19(b)...17 OTHER AUTHORITIES v

7 COME NOW, Defendant-Intervenors, Washington State Farm Bureau Federation, Franklin County Farm Bureau Federation, Grant County Farm Bureau Federation, the Inland Ports and Navigation Group, and Pacific Northwest Generating Cooperative (collectively Intervenors ) by and through undersigned counsels and hereby submit their opposition to Plaintiffs Motion for Preliminary Injunction. I. FACTUAL BACKGROUND A. The Biological and Economic Impacts of Eliminating Summer Spill The Bonneville Power Administration ( BPA )/Army Corps of Engineers ( Corps ) 2004 Federal Columbia River Power System ( FCRPS ) Summer Juvenile Bypass Operations Plan will result in a net benefit to salmon and steelhead populations in the Columbia River, while providing the region with an estimated net benefit of between $ 18 and $ 28.1 million. Administrative Record ( AR ) 23. The Juvenile Bypass Operation Plan includes a spill modification component and a biological offset component. Id. Collectively, the plan provides the same or better biological benefits to affected listed and non-listed salmon as the previous summer spill operations. Id. Spill is water that passes through a spillway instead of through the turbines at a dam, thereby preventing the water from being used to generate power. Summer spill occurs during July and August at the Ice Harbor, John Day, The Dalles, and Bonneville Dams. By July and August, the majority of the fish runs have completed their migration to the ocean. See, Declaration of Shane Scott dated July 22, 2004 at 6. One ESA-protected stock, Snake River fall Chinook, migrate during this time, but they actually receive very little protection from 1

8 summer spill because 90 percent of these juvenile chinook are transported around the dams, leaving very few in the river to benefit. 1 Id. The highest survival for outmigrating juvenile salmon is seen in juvenile salmon that are transported around the dams. Id. The fish that remain in the river use spillway, bypass and turbine passage routes to migrate past the dams. Id. Plaintiffs argue that spill is the safest method, but that is not necessarily accurate. Id. Survival by each of these methods varies by project and from year to year. Id. A December, 2003 National Marine Fisheries Service ( NMFS ) 2 technical memorandum shows that survival through the turbine passage route can be very close to spillway survival at some projects. Id. Furthermore, more spill is not necessarily better, as too much falling water can trap nitrogen bubbles in the water, which can be lethal to fish. Id. Without taking into account any biological offsets, the modification of the summer spill pursuant to BPA/Corps 2004 FCRPS summer Juvenile Bypass Operations Plan should result in between 109 and 927 fewer listed juvenile Snake River fall Chinook, out of an overall estimated juvenile run size of approximately 1 million fish. 3 Id. Estimating the actual number of adult Snake 1 The majority of the juvenile salmon in the river in August are unlisted Hanford Reach fall Chinook, the healthiest natural run of salmon in the entire Columbia River Basin. Last year, over 600,000 adult Hanford Reach Chinook made it back to the Columbia River. Over fifty percent of these fish are harvested by State and Tribal commercial and recreational fishers when they return as adults. Commercial fishers have been receiving about $1.50 per pound for these fish. The BPA/Corps summer spill modification, without taking into account the biological offsets, would result in less than 3,000 fewer adult Hanford Reach salmon returning to the Columbia River out of an estimate run size of 600,000. See Scott Declaration. 2 During this litigation NMFS changed its name to NOAA-Fisheries. 3 The range is primarily influenced by whether the migration year is an early, middle, or late migration year. If the year s out migration is an early migration year, then the impacts will range from between 109 and 269 juvenile fish. AR 23 2

9 River fall Chinook impact by this year s summer spill modification requires the use of a smolt-toadult ratio ( SAR ). Id. Based upon a.5% to 4% SAR, which is well above the ten-year average SAR for Snake River fall Chinook, between approximately 5 and 36 adult Snake River fall Chinook would be impacted by the summer spill modifications. See Appendix A. AR 23. The Juvenile Bypass Operations Plan s offsets are designed to mitigate these impacts. Spill is the most costly fish passage method for the power system. Id. The impact to the federal power system can range from $1 million to $2 million per day, depending on the water supply and the market price for power. Id. It is estimated that the July-August spill program accounts for one-third of the total cost of all mainstem operations for fish and wildlife protection. AR BPA spends over $600 million per year on fish and wildlife efforts, half of which is associated with river operations and dam facilities. BPA estimates that the average annual cost of summer spill is about $77 million, however, if the region experiences another drought or power crisis as it did during 2001, the cost could be 10 times greater. With $ million worth of water going over the dams each summer for so little benefit, regional leaders called for an evaluation of the cost-effectiveness of the spill program. See e.g. former U.S. Senator Mark Hatfield, Making Sense of Salmon Recovery, Oregonian, June 11, 2004 ( [Spill] is expensive and it is not uniformly successful at every dam... A summer spill program that increases fish survival, while still giving ratepayers needed relief, should be something we all can support. ). B. The Regional Collaborative Process Which Resulted in the BPA/Corps 2004 FCRPS Summer Juvenile Bypass Operation Plan In 2003, the Northwest Planning and Conservation Council ( NPCC ), representing the four Pacific Northwest states, charged with striking a balance between energy and the environment under 3

10 the Northwest Power Act, called for a study of spill to see if there were ways to achieve the benefits of summer spill at less cost. NPCC, Mainstem Amendments to the Columbia Basin Fish and Wildlife Program, April 2003, p. 16 at AR Based upon the NPCC call, BPA, the Corps, and NMFS embarked upon a year-long regional collaborative process that resulted in the BPA/Corps 2004 FCRPS summer Juvenile Bypass Operation Plan and the statements of decisions implementing that plan. Throughout this process, the federal agencies have been committed to developing a summer spill plan that provides the same or better biological benefits to affected fish (both listed and non-listed) as the existing summer spill operations. See e.g. Final Proposal for FCRPS Summer Juvenile Bypass Operations at AR 23. Likewise, throughout this process, the federal agencies have collaborated with and involved State and Tribal fisheries managers and have consistently erred on the side of protecting fish at the expense of power production. In January, 2004, representatives from the BPA, NMFS, and the Corps provided the NPCC with a detailed presentation of summer spill alternatives and analyses of the impacts of these various alternatives. This presentation evaluated a range of seven options, from no modification to the existing spill plan to no spill during July and August. Over the next month and a half, federal agencies representatively collaborated over these various alternatives with the State, Tribal, and federal fish managers. Based upon this collaboration, BPA and the Corps issued a joint preliminary proposal for summer spill operation on the FCRPS. This initial proposal included a three-year pilot plan, which 4 The four governors of the States of Oregon, Washington, Montana, and Idaho specifically endorsed the NPCC s recommendations. See Recommendations of the Governors of Idaho, Montana, Oregon, and Washington for Protecting Columbia River Fish and Wildlife and Preserving the Benefits of the Columbia River Power System, signed by the four Northwest Governors June 5, 2003 at AR

11 included spill reductions in mid-july at Ice Harbor Dam and in August at the Snake and Lower Columbia River Dams. See March 30, 2004 Preliminary Proposal at AR 863. After issuing this initial proposal, BPA and the Corps received public comments on the proposal, met with interested parties, and further collaborated with State, Tribal, and federal fish managers. In response to concerns expressed by the public, State and Tribal resource managers, BPA and the Corps modified, several times, the initial proposal by increasing the level of offsets and scaling back the degree of reduction in the summer spill modification. See AR 978; AR 762; AR 428. On June 22, 2004, the BPA and the Corps issued their final proposal for Juvenile Bypass Operations Plan. As described in more detail by the Federal Defendants, this Plan significantly scaled back the reduction of the spill modification and reduced the three-year program to a one-year plan. At the same time, the federal agencies added additional offsets. Consistent with Reasonable and Prudent Alternative ( RPA ) Measure 54 in the 2000 Biological Opinion, the action agencies submitted the proposal to NMFS for its approval. AR 291. On July 1, 2004, NMFS approved the plan concluding that: The flow and spill modifications contained in the Amended 2004 IP [( Implementation Plan )] provide the same or greater biological benefits to Snake River fall Chinook salmon as the Opinion s RPA. Hence, the Amended 2004 IP, including the spill and flow modifications, is consistent with the determinations, assumptions, and analyses of the Opinion s RPA when NOAA concluded that it would satisfy the ESA Section 7 (a)(2) standards. AR 291. Based upon this approval, on July 6, 2004, both BPA and the Corps adopted Statement of Decisions implementing the 2004 FCRPS Summer Juvenile Bypass Operations Plan. AR 1; AR 15. C. The BPA/Corps 2004 FCRPS Summer Juvenile Bypass Operation Plan and the Federal Agencies Statements of Decisions Implementing that Plan 5

12 Prior to the adoption of the Juvenile Bypass Plan, the summer spill occurred at Bonneville, The Dalles, John Day, and Ice Harbor Dams through August 31. The Juvenile Bypass Plan modifies the summer spill operation for 2004 by ending spill at Bonneville and The Dalles Dams as of August 1, and at Ice Harbor and John Day Dams as of August 26. The Plan also includes actions to offset potential adverse impacts to listed and non-listed salmon in order to achieve the same or better biological benefits than those anticipated in the 2000 BiOp. The offsets are as follows: 1) providing 100,000 acre feet (100 kaf) of water from Idaho Power Company s ( IPC ) Brownlee Reservoir to augment flows in the lower Snake River above the IPC s planned flow operations during July; 2) implementing an enhanced Northern pike minnow management program to reduce predation related mortality; 3) providing long-term anti-stranding operations in the Columbia River s Hanford Reach; and 4) implementing hatchery and habitat improvements to address estimated impacts to non-listed salmon not otherwise benefitted by the Hanford reach anti-stranding or pike minnow control efforts. BPA s offsets more than compensate for the potential impacts of the Corps spill modification on listed fish and, together, result in a net benefit to listed and non-listed salmon. AR 1, 15, 291; Scott Declaration at 12, 27. With respect to the additional flow augmentation in the Snake River, this biological offset will benefit primarily Snake River fall Chinook salmon. AR 267; Scott Declaration at 27. BPA entered into an agreement with IPC on June 6, 2004, to purchase 100 kaf of water. Id. IPC had planned to maintain its Brownlee Dam at full pool through July, then draft a specified amount in August (depending upon water supply conditions). Id. Now, under the June 6 agreement with BPA, IPC will draft Brownlee Dam by 100 kaf, or approximately 7 feet of reservoir capacity, by the end of July. Id. Contrary to Plaintiffs assertions, inasmuch as the 100 kaf of water stored in the reservoir would not have been available to aid salmon on the Lower Snake 6

13 River in July without this BPA-IPC agreement, the water is clearly new water and will provide significant survival benefits that would not have occurred otherwise. Id. With respect to the predation offsets, Northern pike minnow are native, resident fish found throughout the Columbia River basin. Id. Pike minnows are a significant predator of juvenile salmonids. Id. The estimated mortality is so great that BPA funds an annual program that pays a bounty to anglers catching Northern pike minnow. Id. The pike minnow predation control has a track record of success. Id. As a result of this existing program, reduction of predators has resulted in a 25% reduction of juvenile salmonid mortality. Id. In other words, an estimated four million more juvenile salmonids survive to reach the ocean each year. Id. With respect to the Hanford Reach anti-stranding operation, the Hanford Reach Protection Program ( HR Agreement ), executed on April 5, 2004, expands the highly successful 16-year Vernita Bar Agreement. Id. The new HR Agreement coordinates hydropower operations in the Mid-Columbia River to limit flow fluctuations below Priest Rapids Dam. Id. The new agreement increases protection for juvenile salmon; provides additional protection flows on weekends; and provides a greater guarantee that adequate water is delivered to protect fish. Id. The HR Agreement is an example of a cooperative, incentive-based approach to improving salmon production. Id. BPA s participation in the HR agreement provides protection to juvenile fall chinook salmon above that needed merely to mitigate for the proposed reduction in summer spill. Id. II. LITIGATION PROCEDURAL AND STATUTORY BACKGROUND The Supplemental Complaint in this case was filed on July 16, In it, the Plaintiffs, National Wildlife Federation et. al ( NWF ) complain that the NMFS, Corps, BPA, and the U.S. Bureau of Reclamation ( BOR ) (collectively the Action Agencies ) have violated the Endangered 7

14 Species Act ( ESA ) and the Administrative Procedures Act ( APA ) simply because NWF disagrees with the Action Agencies scientific analysis and conclusions. Furthermore, the NWF states that the Corps reliance on the 2000 Biological Opinion ( BiOp ) is unlawful despite the fact that this Court ruled against the Plaintiffs request to enjoin the BiOp on May 7, A. River Users Interest in this Preliminary Injunction On behalf of their impacted members, the River Users separately intervened in this litigation. As a result of the relief that is requested by the NWF, the Washington State Farm Bureau s, the Franklin County Farm Bureau s, and the Grant County Farm Bureau s ( Farm Bureaus ) members will be significantly impacted by the increased cost of electricity, the BiOp s impact on barging and irrigation, as well as requirements related to increased off-site mitigation/restrictions on the use of salmon habitat, i.e., habitat that is located on their farms. Trade is also a very important issue to Washington farmers and ranchers. From Pullman to the ports, agriculture is the engine that powers much of economy for many families and communities in the state. Agriculture provides more than $5.3 billion dollars to individuals, rural areas, towns and cities across the state on an annual basis. Washington agriculture not only provides more than 230 different crops to the nation and the world, it provides much of the business infrastructure that many in the state depend on to feed and clothe their families. The Columbia River and its tributaries are the lifeblood for this agricultural base due to the importance of irrigation, electrical generation, and transportation provided by the River. B. ESA Section 7 Process and the 2000 BiOp The basis for this case is the 2000 BiOp issued by NMFS for the operation of the FCRPS and 19 BOR projects. This BiOp was completed by NMFS, upon submission of a biological assessment/evaluation from the Corps, BPA and BOR to comply with section 7 of the ESA. In order 8

15 to protect threatened and endangered species, Congress placed certain substantive and procedural requirements on all federal agencies. Specifically, section 7(a) of the ESA provides that each federal agency must: in consultation with the assistance of the Secretary [of the Interior], insure that any action authorized, funded, or carried out by such agency... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the secretary... to be critical U.S.C. 1536(a)(2). ESA 7 has two requirements. The substantive requirement is that agency action may not jeopardize a listed species or adversely modify designated critical habitat. To achieve this substantive requirement, Congress established a procedural consultation process. It is the result of this procedural consultation process that has been the subject of this litigation 5. As the Court knows, in this section 7 consultation process, NMFS determined that the Action Agency s proposed action, existence and operation of the dams on the FCRPS, may jeopardize the continued existence of any listed species or destroy or adversely modify critical habitat ( jeopardy opinion ), and issued Reasonable and Prudent Alternative ( RPA ) to mitigation the proposed action. See 16 U.S.C. 1536(b)(3)(A); 50 C.F.R (h). Specifically, the NMFS 2000 BiOp proposed 199 actions for the RPA. Even with this host of mitigating measures, Plaintiffs originally filed this suit in May, 2001, to overturn the BiOp. After many meetings and attempts at mediation, briefs were filed and argued and this Court issued a May 7, 2003 Order that remanded the If the BiOp does not include a jeopardy opinion ( no-jeopardy opinion ), or if such jeopardy can be avoided by reasonable and prudent alternatives, then the BiOp may also include an Incidental Take Statement ( ITS ). 16 U.S.C. 1536(b)(4); 50 C.F.R (I). The ITS describes the amount or extent of potential take of listed species which will occur from the proposed action, and the reasonable and prudent measures ( RPA ), which will help avoid this result, and the terms and conditions which the agency must follow to be in compliance with the ESA. Id. 9

16 FCRPS BiOp back to NMFS to correct deficiencies in the action area, to ensure that only Federal actions that had undergone Section 7 consultation were considered, and to ensure that only non- Federal actions which are reasonably certain to occur were considered in the cumulative effects. The Court left the BiOp in place during the period of the remand. 10

17 III. AN INJUNCTION SHOULD NOT ISSUE IN THIS CASE A. Standard of Review for Injunctions In deciding a motion for an injunction, the moving party must show either a combination of probable success on the merits and the possibility of irreparable injury, or that serious questions are raised and the balance of hardships tips sharply in the moving party s favor. Rodde v. Bonta, 357 F.3d 988, 994 (9 th Cir. 2004). These standards are not treated as two distinct tests, but rather as a sliding scale representing a continuum of equitable discretion whereby the greater the relative hardship to the moving party, the less probability of success must be shown. Regents of Univ. of Cal. v. ABC, Inc., 747 F.2d 511, 515 (9 th Cir. 1984). The relative hardship to the parties is the critical element in deciding at which point along the continuum a stay is justified. Lopez v. Heckler, 713 F.2d 1432, 1435 (9 th Cir. 1983). Additionally, injunctive relief issues only if the court finds that irreparable injury and inadequacy of legal remedies favor the injunction. Amoco Production v. Gambell, 480 U.S. 531, 542 (1987). The Amoco court concluded that the balance of harms may favor an injunction when [e]nvironmental injury is sufficiently likely. Amoco, 480 U.S. at In order to demonstrate the requisite environmental harm, the movant must prove that the alleged environmental harm is likely to occur, and that it would be permanent, or at least of long duration. Id. Additionally, injunctions may only issue based upon current agency proposals, not past actions. National Wildlife Federation v. Cosgriffe, 21 F.Supp. 2d 1211 (D.Or. 1998)(refusing to enjoin livestock grazing after considering current management, rather than relying on complaints of past actions). The court will not issue an injunction if it might actually jeopardize natural resources. Hells Canyon Preservation Council v. Jacoby, 9 F.Supp. 2d 1216 (D.Or. 1998). Thus, 11

18 in this case, Plaintiffs must show that their requested injunction will not jeopardize natural resources, particularly when considering the mitigation proposed with the reduction in spill. Furthermore, an injunction must be tailored to remedy the specific harm alleged. Lamb- Weston v. McCain Foods, 941 F.2d 970, 974 (9 th Cir. 1991); Aviation Consumer Action Project v. Washburn, 535 F.2d 101, (D.C. Cir. 1976)(cited with approval in Lamb-Weston). An overbroad injunction is an abuse of discretion. Lamb-Weston, supra, 941 F.2d at 974. An injunction is an extraordinary writ and should be tailored to restrain no more than what is reasonably required to accomplish its ends. Consolidated Coal v. Disabled Miners of Southern West Virginia, 442 F.2d 1261, 1267 (4 th Cir. 1971), cert. denied 404 U.S. 911 (1971). The essence of equity jurisdiction is the power of the court to fashion a remedy according to the necessities of the particular case. United States v. Laerdal Mfg., 855 F.Supp. 1219, 1226 (D.Or. 1994). B. Plaintiffs Lack of Probable Success on the Merits - This Court Lacks Jurisdiction Over Issues Raised 1. Plaintiffs have not complied with the notice requirements of the ESA In the case at hand, the issues Plaintiffs are asking this Court to enjoin are not properly before it. Specifically, Plaintiffs are asking this Court for an injunction based upon a government action that took place on July 6, 2004, the date the Statement of Decisions ( SOD ) was issued by the Corps to modify the summer spill operations in FCRPS. While the ESA allows a person to bring suit against the Secretary where there is alleged a failure of the Secretary to perform any act or duty... which is not discretionary with the Secretary, 16 U.S.C. 1540(g)(1)(C), no action may be commenced under this provision prior to sixty days after written notice has been given, except where an action is an emergency posing significant risk to a species well-being. 16 U.S.C. 12

19 1540(g)(2)(C). 6 A failure to strictly comply with the notice requirement acts as an absolute bar to bringing suit under the ESA. Southwest Ctr. For Biological Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515, 520 (9 th Cir. 1998). Courts simply do not have jurisdiction unless the plaintiff first gives 60 days written notice prior to bringing suit under 16 U.S.C. 1540(g). Save the Yaak v. Block, 840 F.2d 714, 721 (9 th Cir. 1988)(60-day notice requirement is jurisdictional, not procedural). Additionally important is that courts have held that plaintiffs cannot circumvent the 60-day notice requirement by pleading their claims under the Administrative Procedures Act ( APA ) where they otherwise could have brought suit under the ESA citizen suit provision. See Brem-Air Disposal v. Cohen, 156 F.3d 1002, 1005 (9 th Cir. 1998) (no jurisdiction under the APA where plaintiffs could have brought claim under the citizen suit provision of Resource Conservation and Recovery Act). The APA allows judicial review only for [a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court. 5 U.S.C. 704 (emphasis added). Because a citizen suit provision provides an adequate remedy, courts lack jurisdiction to hear claims under the APA that otherwise could have been brought under the citizen suit provision. See Brem-Air Disposal, 156 F.3d at The same reasoning which the Ninth Circuit has applied to the citizen suit provisions in other environmental statues applies equally to the citizen suit provision in the ESA. See Hawaii County Green Party v. Clinton, 124 F. Supp. 2d 1173, 1193 (D.Haw.2000); Am. Canoe Ass n. Inc. v. U.S. Envtl. Prot. Agency, 30 F. Supp. 2d 908, 927 (E.D. Va. 1998); Citizens Interested in Bull Run Inc. v. Edrington, 781 F.Supp. 1502, 1509 (D.Or. 1991). Thus, if plaintiffs could have otherwise brought 6 In this case, no such emergency exists. 13

20 their claims under the citizen suit provision of the ESA, they must meet the 60-day notice requirement found in that statute. See Oregon Natural Resources Council v. U.S. Forest Serv., 838 F.2d 842, 851 (9 th Cir. 1987). In this case, the NWF claims for relief are based either upon the APA, 5 U.S.C , or upon the ESA, 16 U.S.C. 1536(a)(d) & (d) & 16 U.S.C. 1540(g)(1). See Compl , Claims for Relief. The ESA claims fit squarely within the ESA citizen suit provision, as they allege a failure of the Secretary to perform any act or duty under section 1533 of this title [16] which is not discretionary with the Secretary. 16 U.S.C. 1540(g)(1)(C). Thus, the failure to comply with the 60-day notice requirements of the ESA bars litigation of these claims. 7 Additionally, Plaintiffs have cited a case for support of their second claim of relief that stands for the opposite legal premise for which they cite that case. In their Complaint, Plaintiffs state, Indeed, the Corps may not meet its duty to comply with 7 by relying on an invalid opinion. (citing cases discussed, supra). See, Supplementary Complaint, Claim for Relief No. 2 at 102. However, in Stop H-3 Ass n, the Court actually ruled that reliance upon the biological opinion was not arbitrary, capricious, an abuse of discretion, or otherwise not accordance with law. Stop H-3 Ass n v. Dole, 740 F.2d 1442 (9 th Cir. 1984)(emphasis added). The other case on which Plaintiffs rely also stands for a different legal premise than for which Plaintiffs cite it. In Resources Ltd., the 7 In the NWF Supplemental Complaint at 13, the Plaintiffs indicate that they did provide 60-day notices of their intent to sue on May 9, 2003 and February 13, However, these Notices are absolutely inadequate since they predate the Corps July 6, 2004 SOD. Admittedly it is creative to serve broad 60-day notices ahead of any government action to try and meet this requirement of ESA; however, the law requires a 60-day notice of intent to sue after the government action occurs. Again, this Court lacks jurisdiction to decide issues relating to any alleged violations of the ESA arising out of July 6, 2004 SOD. 14

21 Court ruled that the Forest Service acted arbitrarily and capriciously because the Forest Service did not provide the Fish and Wildlife Service with all of the data and information required under 50 C.F.R (d). Resources Ltd., Inc. v. Robertson, 35 F.3d 1300, 1304 (9 th Cir. 1993). 2. The Ninth Circuit has exclusive jurisdiction to consider challenges to BPA s decision regarding bypass flows Section 9(e)(5) of the Pacific Northwest Electric Power Planning Conservation Act ( NWPA ) vests the Ninth Circuit with exclusive jurisdiction to review any challenge to a final action of the BPA administrator or the implementation of such final actions. 16 U.S.C. 839f; Pacific Power and Light Co. v. BPA, 795 F.2d 816 (9 th Cir. 1986); Northwest Resource Information Center, Inc. v. National Marine Fisheries Service, 818 F.Supp.1399, 1403 (W.D. Wash. 1993) ( jurisdiction over BPA final action under NWPA was placed in the Ninth Circuit to avoid potential for conflicting district court opinions ). The Corps 2004 SOD is partial implementation of the BPA/Corps 2004 FCRPS Juvenile Bypass Operations Plan (which includes BPA mitigation offsets), 8 and is an essential component of implementation of the BPA s juvenile bypass operations, thus is a BPA final agency action. These components cannot be evaluated separately. Therefore pursuant to the NWPA, the Ninth Circuit has exclusive jurisdiction over Plaintiffs challenges, not this Court. Plaintiffs are improperly ignoring the NWPA s exclusive jurisdiction provisions in order to invoke this Court s jurisdiction to enjoin the Corps implementation of 2004 FCRPS Juvenile Bypass Operations by impermissibly piecemealing the review of BPA s action. For example, 8 Additionally, BPA is implementing the 2004 FCRPS Juvenile Bypass Operation s mitigation offsets, the other essential component of the operation. These offsets include: (1) Brownlee Reservoir flow augmentation; (2) funding additional predator reductions; (3) implementing the new Hanford Reach Rearing Protection Agreement; and (4) funding the additional habitat improvement and hatchery actions. 15

22 Plaintiffs inaccurately describe BPA s role in the 2004 spill decision. Plaintiffs motion for preliminary injunction is a challenge to the implementation of a final BPA action. While the Corps will be responsible for flipping the switches on the dams, the Corps will be doing so only as part of its implementation of BPA s 2004 Bypass Operations Plan at the direction of BPA. See e.g. 16 U.S.C. 832 (the Corps shall... operate, maintain, and improve at Bonneville project such machinery, equipment, and facilities for the generation of electric energy as the administrator may deem necessary.... ). Under the NWPA, both BPA s action and implementation of that action must be reviewed exclusively by the Ninth Circuit. 16 U.S.C. 839f. As such, Plaintiffs are not likely to succeed on the merits because their challenge to the Corps implementation of the 2004 FCRPS Juvenile Bypass Operations Plan must be dismissed based upon the jurisdiction provision of the NWPA. 9 Alternatively, Plaintiffs challenge should be dismissed for failure to join BPA as a necessary and indispensable party. See Fed. R. Civ. P. 19(a). Whether a suit should be dismissed because absent parties cannot be joined involves a three-step inquiry. First, the court determines whether an absent party should be joined for the reasons listed in Fed. R. Civ. P. 19(a). 10 E.g. 9 Because of the exclusive jurisdiction provisions within the NWPA, to the extent that this Court would arguably have jurisdiction over the Corps action, this Court should defer to the Ninth Circuit s exclusive jurisdiction over the BPA s final action. See Central Montana Elec. Power Coop. Inc. v. BPA, 840 F.2d 1472, (9 th Cir. 1988) (stating [The Ninth Circuit has] consistently interpreted this judicial review provision with a broad view of [the Ninth Circuit s] jurisdiction and a narrow definition of district court jurisdiction.... Under this section, suits challenging final actions by the BPA must be reviewed by this Court. ) 10 (a) Persons to be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if... (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest 16

23 American Greyhound Racing, Inc. v. Hull, 305 F.3d 1015 (9 th Cir. 2002); Dawavendewa v. Salt River Project Agric. Imprv. & Power Dist., 276 F.3d 1150, 1155 (9th Cir. 2002). Second, if the answer is yes, the court asks whether the non-party can be joined. Dawavendewa, 276 F.3d at Finally, if joinder is not possible, the court weighs the factors described in Fed. R. Civ. P. 19(b) 11 to determine whether, in equity and good conscience, the case should be dismissed because the non-party is indispensable. Makah Indian Tribe v. Verity, 910 F.2d 555, 558 (9 th Cir. 1990). Here, BPA should be joined under Fed. R. Civ. P. 19(a) because BPA has a direct and primary interest in the 2004 FCRPS Juvenile Bypass Operations Plan, and is so situated that the BPA's absence will impair or impede BPA's ability to protect that interest. However, in this case BPA cannot be joined because the NWPA provides that the Ninth Circuit with exclusive jurisdiction over claims against final BPA actions. Accordingly, this Court should dismiss Plaintiffs challenge based upon Fed. R. Civ. P. 19(b) because the Ninth Circuit is the appropriate forum to bring such challenges. 3. There is no final agency action under the APA for the court to review.... Fed. R. Civ. P. 19(a). 11 (b) Determination by Court Whenever Joinder Not Feasible. If a person as described in subdivision (a)(1)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. Fed. R. Civ. P. 19(b). 17

24 As stated above, this Court lacks jurisdiction over the Plaintiff s ESA claims for violation of the 60 day notice provision of the ESA. The remaining claims in the Plaintiff s Complaint are those allegedly brought under the APA. See Compl , Claims for Relief. Specifically, Plaintiffs cites numerous APA related problems with the 2000 FCRPS BiOp, at the same time they allege that the Corps is not following the BiOp as evidence of the need for an injunction. See e.g. Memorandum in Support of Plaintiffs Motion for Preliminary Injunction at If the BiOp is the government action at stake, it is not final and is not due to be final until November, 2004,, per the Court s Order of May 7, Review under the APA requires the plaintiffs to challenge final agency action. 5 U.S.C In order for agency action to be final, two conditions must be satisfied. First, the action must mark the consummation of the agency s decision making process it must not be of merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow. Bennet v. Spear, 520 U.S. 154, (1997) (internal citations omitted); accord. Montana Wilderness Ass n. Inc. v. U.S. Forest Serv., 314 F.3d 1146, 1150 (9 th Cir. 2003). In this case, because the BiOp has been remanded by the Court, it cannot be a final agency action until it is reissued by the NMFS. Plaintiffs also ask the Court to enjoin NMFS to withdraw its July 1, 2004, Findings of Adequacy of FCRPS Implementation Plan approving the Corps decision to eliminate summer spill. See Memorandum in Support of Plaintiffs Motion for Preliminary Injunction at 1. However, Plaintiffs do not provide a legal basis for requiring the court to enjoin these findings. This seems to be exactly the type of judicial interference in lawful agency discretion that the Supreme Court just 18

25 determined that courts should avoid. Norton v. Southern Utah Wilderness Alliance, 542 U.S. (June 14, 2004). C. An Injunction is Not Necessary Because there is no Immediate Irreparable Harm Although Plaintiffs allege harm to salmon, there is no evidence of jeopardy or immediate, devastating environmental harm. As stated above, in order to protect threatened and endangered species, Congress placed certain substantive and procedural requirements on all federal agencies. 16 U.S.C. 1536(a)(2). In the case at hand, this Court ruled that the 2000 BiOp was legally insufficient and directed NMFS to reissue the BiOp in accordance with the Court s order by November, Therefore, the agencies are meeting the first substantive requirement under ESA 7(a) because they are in the process of complying with this Court s order by reissuing the BiOp. However, compliance with 7(a) does not end compliance with the entire ESA 7 consultation process. ESA section 7(d) states: After initiation of consultation required under subsection (a)(2) of this section, the Federal agency... shall not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate section (a)(2) of This section. 16 U.S.C. 1536(d). 12 Section 7(d) provides a two-part test for determining which agency actions may proceed during consultation. 13 A federal district court explains: 12 Reasonable and prudent alternative measures are terms of art found in 16 U.S.C. 1536(b)(4). Reasonable and prudent alternatives are those alternatives to a proposed action recommended by the NMFS in its BiOp upon the NMFS s issuance of a jeopardy opinion. Id. If the NMFS issues a jeopardy opinion with reasonable and prudent alternatives, the agency must either adopt the alternatives or abandon the project. Id. 13 Section 7(d) was added to the ESA in response to the Supreme Court s decision in TVA v. Hill, 437 U.S. 153 (1978). In that case, the Supreme Court enjoined construction of the 19

26 under the express language of the statute, the federal agency is only prohibited from making those commitments which involve the following two elements: (1) an irreversible and irretrievable commitment or resources; (2) which foreclose the formulation or implementation of reasonable and prudent alternatives. Pacific Rivers Council v. Thomas, 1994 WL (D. Or. Oct. 20, 1994) at *3. In this case, Plaintiffs are asserting that an injunction should be granted for failure to complete the 7 process. Admittedly, injunctive relief is most commonly granted for certain procedural violations of the ESA. See e.g. Pacific Rivers Council v. Thomas, 30 F.3d 1050, (9 th Cir. 1994); Sierra Club v. Marsh, 816 F.2d 1376, 1389 (9 th Cir. 1987); Thomas v. Peterson, 753 F.2d 754, 765 (9 th Cir. 1985). Importantly however, such an injunction should apply until such time as 7 consultation is initiated. Id. Once consultation is initiated, the section 7(a) procedural violation is cured, and the only prohibition against an action proceeding is noncompliance with section 7(d). Sierra Club v. Marsh, 816 F.2d at Injunctive relief may also be granted for substantive violations of the ESA. Specifically, an agency may be conducting an activity that is deemed to be jeopardizing the continued existence of a listed species. However, this type of injunction is unusual because jeopardy is a legal term of art which cannot occur until the NMFS or the court deems it to occur, usually upon issuance of a BiOp, the requirements of which agencies rarely ignore. See Sierra Club v. Marsh, 816 F.2d 1376 (9th Cir. 1987) (enjoining construction of part of a flood control project until the Corps complied with the mitigation measures stipulated by the BiOp); Greenpeace v. National Marine Fisheries Service, 106 F. Supp.2d 1066 (W.D. Wash. 2000) (enjoining pollock fishing which, according to $78 million dollar Tellico Dam for procedural violations of 7 the ESA, despite the fact that the Dam was mostly complete. In adding 7(d), Congress sought to avoid a similar waste of money and resources. 20

27 the BiOp, was likely to jeopardize a listed species); see also Bays Legal Fund v. Browner, 828 F.Supp. 102 (D. Mass. 1993) (refusing to enjoin construction of an outfall tunnel for sewage because there was no evidence that the construction or operation of the outfall tunnel is likely to jeopardize the continued existence of the endangered species.... Id. at 110). In this case, an injunction is not appropriate. NMFS has determined that the elimination of summer spill will not result in jeopardy to salmon. See Findings Regarding Adequacy of FCRPS Implementation Plan, July 1, 2004 ( Findings ), AR 291. In fact, NMFS has determined that with the changes in flow and the offsets, salmon will be better off than without these changes. Specifically, in the Findings, NMFS stated that a worse case scenario, with no mitigation, is that 100 to 900 juvenile listed Snake River fall juvenile chinook salmon would be impacted. Findings at 6. This is the species that would be most impacted by the decision. Findings at 5. However, the decision to not spill is being mitigated by 2.3 kaf additional flow release from Brownlee Reservoir spread over a three-week period in July, which is estimated to provide an additional survival benefit of 700 to 1,100 juvenile fall chinook. Findings at 7. This mitigation has the potential to save more fish than the spill it will replace. The AR is clear that eliminating summer spill presents no threat to the survival of the salmon. Furthermore, other qualified scientists agree concur with the governments conclusions. See also Declaration by B. Shane Scott. In addition, in order for a court to issue an injunction, plaintiffs have to prove that an injunction will not jeopardize natural resources. Hells Canyon Preservation Council v. Jacoby, 9 F.Supp. 2d 1216 (D.Or.1998). In the case at hand, the federal agencies completed their expert analysis after much public participation, including participation by the Tribes and States. In its Findings, NMFS estimates that 100 kaf of additional flow augmentation volume drafted from IPC s 21

28 Brownlee Reservoir during the month of July would benefit listed juvenile fall chinook salmon that are present in Lower Granite Reservoir during July to a level sufficient to offset the adverse effect of the reduced spill operation at four FCRPS mainstem dams in August. Findings at 7. Based upon the administrative record before the Court, these expert agency findings and conclusions should be granted deference as required by law. The Corps and NMFS decisions are rational and supported by the administrative record. Plaintiffs may not agree with the Action Agencies decision; however, the agencies still have the right to rely upon their qualified experts. See e.g. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378 (1989)( When specialist express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as in the original matter, the court might find contrary views more persuasive ). In fact, in one case cited by Plaintiffs to support their motion for an injunction, Judge Marsh stated: Federal defendants are under no obligation to listen and respond to salmon plans from every corner of the Northwest, but the ESA does impose substantive obligations with respect to an agency s consideration of significant information and data from well-qualified scientists such as the fisheries biologists from the states and tribes. Idaho Department of Fish and Game v. NMFS, 850 F.Supp. 866, 899 (D.Or. 1994), vacated as moot, 56 F.3d 1075 (9 th Cir. 1995) (emphasis added). In this case, the record is clear that NMFS and the Corp received and considered numerous documents containing information and data from the State and Tribal fisheries biologists. Neither the ESA nor the APA require that the agencies adopt policy positions supplied by State and Tribal fisheries biologist or any other member of the public. Judge Marsh interpreted the ESA to require the agency consider information and data. Here, that substantive requirement has been met. As did the court in a case concerning similar issues in the Missouri River, In re Operation of the Missouri River System Litigation, D. Minnesota (April 26, 22

29 2004)(attached hereto as Ex. 3), this Court should reject Plaintiffs request that the Court secondguess the agencies professional opinion. D. An Injunction Would Be Damaging To the Region The public interest also favors the rejection of the proposed injunction because the environmental harm alleged by Plaintiffs is exaggerated and the impacts on the farmers, ranchers and others living in the Northwest would be irreparable. As shown above, ESA-listed fish are likely to receive equal or greater benefits from the changes to spill and offsets than they would have under the 2000 BiOp. People in the Northwest care about salmon; they also care about their ability to live, eat and support their families as well. Currently, annual costs for BPA s Fish and Wildlife program activities are $333 million, which is money collected from BPA s wholesale customers. See, Declaration of John D. Saven at 4. In addition to direct costs, the region is hit with costs of another $303 million in foregone power production. Id. Spill is the most costly method for fish passage for the FCRPS. Id. at 5. According to the AR, the financial impact on all BPA customers of BiOp related program spill ranges from $1 million to $2 million per day. AR at 23. With these high costs of spill and the fact that summer spill also has a small biological benefit for ESA-listed species, it was highly reasonable for NMFS and the Corps to listen to those who question whether the summer spill program should continue as it was originally proposed in the 2000 BiOp. For a modest 36 percent reduction in spill, the additional value to people living in the region is $31-41 million. Saven Declaration at 6. When you factor in the costs of the offsets ($9.6 million) and the cost of funding additional fish and wildlife programs ($3.3 million), the Corps reduced spill SOD produces a net benefit in the region of $18-$28 million. Id. 23