Written by: Amie Alexander, JD/MPS Candidate, William H. Bowen School of Law


The United States Court of Appeals for the Ninth Circuit issued its opinion on April 2, 2018 affirming the United States District Court for the District of Oregon’s order to spill more water over the Columbia and Snake River dams to protect endangered salmon and steelhead species. You can read the opinion in its entirety here.

The court was considering consolidated appeals which dealt with a long-running dispute over salmon and steelhead species listed under the Endangered Species Act (ESA). Three federal agencies challenged the district court’s injunctions to protect the listed species.

In the district court action, plaintiffs National Wildlife Federation and the State of Oregon asked the district court to order the federal agencies to conduct certain spill operations and fish monitoring operations at dams and other facilities in the Federal Columbia River Power System. Additionally, the district court directed the federal agencies to disclose information to plaintiffs on planned projects at certain dams to ensure that major expenditures do not bias the preparation of an environmental impact statement (EIS) prepared under the National Environmental Policy Act (NEPA). A three-judge panel affirmed the district court’s grant of the spill and fish monitoring injunctions, and dismissed the appeal of the NEPA disclosure order.

Factual Background

Salmon and steelhead travel the Columbia and Snake Rivers from where they hatch in fresh water, migrate downstream to the Pacific Ocean, and later return upstream to spawn. Populations have significantly decreased in recent years, and today thirteen species of salmon and steelhead of the Columbia and Snake Rivers are listed as endangered or threatened under the ESA.

A high number of these fish die while swimming through turbines of dams in the Federal Columbia River Power System. Bypass systems consisting of screens in front of turbine intakes to divert fish into passageways to avoid the turbines exist at each dam in the migration corridor of the Columbia and Snake Rivers. The Federal Columbia River Power System is made up of eight dams, reservoirs, and related facilities on the mainstem Columbia and Snake Rivers in the states of Montana, Washington, Idaho, and Oregon. Agencies charged with maintaining these dams are the U.S. Army Corps of Engineers, the U.S. Bureau of Reclamation, and the Bonneville Power Administration. This litigation concerns the application of the ESA to the management of the Federal Columbia River Power System.

Background of this Action

The ESA requires federal agencies to consult to conserve species listed under the ESA. If a proposed federal action may jeopardize listed species or modify a critical habitat, the agency must consult – here, the U.S. Army Corps of Engineers and the U.S. Bureau of Reclamation were required to consult with the National Marine Fisheries Service (NMFS) in order to prepare a biological opinion.

An initial biological opinion issued in 2000 was remanded to NMFS to issue a new opinion after being challenged by the National Wildlife Federation (NWF). A new opinion issued in 2004 concluded that operation of the dams would not jeopardize listed species. NWF again challenged the opinion, and the district court granted a preliminary injunction requiring acting agencies to increase the amount of water that passed through certain spill gates, rather than passing the water through turbines for power generation, in order to decrease the mortality rate of passing fish. This court affirmed the injunction. The issuing district court eventually rejected the 2004 biological opinion and again remanded to the NMFS to prepare a new biological opinion. The district court again rejected the NMFS’s new biological opinion in 2011. The district court held that a 2014 biological opinion violated the ESA and the Administrative Procedure Act (APA), and that agencies violated NEPA by not preparing a proper EIS. The court entered a remand order requiring a new biological opinion by December 31, 2018, and directing federal defendants to keep the 2014 biological opinion in place until the new opinion was issued.

Plaintiffs filed motions requesting injunctive relief for ESA violations in January of 2017. Plaintiffs sought an injunction ordering the Corps to increase spill to the maximum level from April to June, to order federal defendants to operate bypass facilities and tag detecting systems, and a prohibition from making significant capital expenditures at certain dams absent court approval.  The district court granted the motions for injunctive relief under the ESA and tag monitoring injunction, but denied plaintiffs’ injunction motion regarding capital expenditures. Federal defendants and three intervenor defendants appealed, which were consolidated into this court’s review.

Considerations on Appeal

On appeal, this court first considered whether Federal Rule of Civil Procedure 60(b) barred plaintiffs’ January 2017 injunction motions. Rule 60(b) provides relief from a “final judgement,” which defendants maintain was in May of 2016, and therefore the 2017 motions for injunctive relief were improper. This court did not agree, finding the May 2016 order was not a final judgment and therefore Rule 60(b) did not apply to subsequent injunction motions.

Next, the court considered whether the district court abused its discretion in granting the spring spill injunction. Defendants argued that the district court’s framework in analyzing the request was incorrect as a matter of law, that the district court’s findings of fact were clearly erroneous, that plaintiffs failed to establish irreparable harm, and that the district court failed to narrowly tailor the injunction to avoid the irreparable harm found. This court held the district court did not abuse its discretion, conducted a proper irreparable harm analysis, that its findings of fact were not clearly erroneous, and that the district court’s injunction was narrowly tailored to avoid the irreparable harm that the district court identified.

Finally, the court dismissed defendants’ appeal of the district court’s NEPA disclosure order. Because the district court’s order was not an injunction and did not modify an injunction, the court was without jurisdiction to review it. The court provided that if plaintiffs later seek to enjoin expenditures on the dam projects and the district court grants the relief, agencies may then appeal to this court.