Earlier this year, the U.S. District Court for the Eastern District of California held that the National Marine Fisheries Service's 2004 Biological Opinion on the effects of California and federal water projects on endangered and threatened salmon was arbitrary and capricious. As result, NMFS must complete a new BiOp, but the question remains on how to manage the water projects in the meantime.
Last week A week and a half ago the court considered to what extent "the species' would be placed in jeopardy or their critical habitat threatened with adverse modification or destruction until such time as the new BiOp is released."
The court concluded that proceeding until current operations would in fact jeopardize all three species at issue. The decision is available here. According to the court, "[b]ased on two drought years, with critically dry hydrologic conditions in 2008, and the presently unpredictable risk of a third dry year, the three species are unquestionably in jeopardy. The ESA does not permit jeopardy to a listed species to be considerably increased during a BiOp reconsultation. Project operations through March 2009 will appreciably increase jeopardy to the three species."
This ruling makes it more likely that gates of the Red Bluff Diversion Dam and other dams will be opened, creating uncertainty for those who depend on the dam for water: "While [the court] ruled there should be no immediate change to the status of the Dam's gates, the finding of jeopardy in the Endangered Species Act lawsuit leaves a cloudy question over whether the gates will be lifted at all in 2009."
However one feels about this particular result, the opinion is still helpful in that it provides a good summary of injunctive relief under the Endangered Species Act in the Ninth Circuit. After articulating the traditional test for preliminary injunctive relief (strong likelihood of success on the merits, the possibility of irreparable injury to plaintiff if preliminary relief is not granted, a balance of hardships favoring the plaintiff, and advance of the public relief), the court made clear that the traditional test does not apply in the context of the ESA. Specifically, the balancing of hardships inquiry, the court noted in a footnote the severe constraint posed by Ninth Circuit precedent, as "[i]t appears the Ninth Circuit is the only circuit to articulate a standard that arguably completely precludes the balancing of relative harms." Moreover, the court further noted that "[n]o party has presented any legal authority providing that purely economic interests may be balanced in an ESA injunctive relief case."
On the question of what constitutes irreparable injury, the court determined that "[i]rreparable harm to justify injunctive relief is shown when the agency action causes appreciable harm to the species or its critical habitat, as measured by the combined effects of the action and underlying baseline conditions."