Plaintiff’s Memorandum In Support of Motion for Partial Summary Judgment and Injunctive Relief 16-cv-4294-WHO 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES MORISSET, SCHLOSSER, JOZWIAK & SOMERVILLE 1115 Norton Building, 801 Second Avenue Seattle, Washington 98104-1509 Tel: 206-386-5200 Fax: 206-386-7322 Thomas P. Schlosser WSBA #06276 Thane D. Somerville WSBA #31468 (pro hac vice) MORISSET, SCHLOSSER, JOZWIAK & SOMERVILLE Suite 1115, Norton Building 801 Second Avenue Seattle, WA 98104-1509 Tel: 206-386-5200 Fax: 206-386-7322 [email protected][email protected]Attorneys for Plaintiff Hoopa Valley Tribe Patricia A. Prochaska, CA #142161 Attorney at Law 577 9th Avenue Menlo Park, CA 94025 Telephone: 650-562-7060 [email protected]Local Counsel for Plaintiff UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION HOOPA VALLEY TRIBE, Plaintiff, v. U.S. BUREAU OF RECLAMATION and NATIONAL MARINE FISHERIES SERVICE, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 16-cv-4294-WHO PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT, AND INJUNCTIVE RELIEF Judge: Honorable William H. Orrick Hearing Date: January 11, 2017 Hearing Time: 2:00 PM Courtroom: 2, 17 th Floor Case 3:16-cv-04294-WHO Document 69-1 Filed 12/01/16 Page 1 of 31
Transcript
Plaintiff’s Memorandum In Support of Motion for Partial Summary Judgment and Injunctive Relief 16-cv-4294-WHO
Seattle, Washington 98104-1509 Tel: 206-386-5200 Fax: 206-386-7322
Thomas P. Schlosser WSBA #06276 Thane D. Somerville WSBA #31468 (pro hac vice) MORISSET, SCHLOSSER, JOZWIAK & SOMERVILLE Suite 1115, Norton Building 801 Second Avenue Seattle, WA 98104-1509 Tel: 206-386-5200 Fax: 206-386-7322 [email protected][email protected] Attorneys for Plaintiff Hoopa Valley Tribe Patricia A. Prochaska, CA #142161 Attorney at Law 577 9th Avenue Menlo Park, CA 94025 Telephone: 650-562-7060 [email protected] Local Counsel for Plaintiff
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION HOOPA VALLEY TRIBE, Plaintiff, v. U.S. BUREAU OF RECLAMATION and NATIONAL MARINE FISHERIES SERVICE, Defendants.
) ) ) ) ) ) ) ) ) ) ) ) ) )
Case No. 16-cv-4294-WHO PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT, AND INJUNCTIVE RELIEF Judge: Honorable William H. Orrick Hearing Date: January 11, 2017 Hearing Time: 2:00 PM Courtroom: 2, 17th Floor
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TABLE OF CONTENTS
I. INTRODUCTION ............................................................................................................... 1
II. STATEMENT OF ISSUES ................................................................................................. 2
III. STATEMENT OF FACTS .................................................................................................. 2
IV. STANDARD OF REVIEW ................................................................................................. 9
V. ARGUMENT AND AUTHORITY .................................................................................... 9
A. Plaintiff Is Entitled to Partial Summary Judgment Because NMFS and BOR Each Have A Legal Duty to Reinitiate Formal Consultation Based on the Take Exceedances That Occurred in 2014 and 2015 and Neither NMFS or BOR Have Reinitiated Formal Consultation. ............................................................................. 9
B. Plaintiff Is Entitled To An Injunction to Prevent Imminent and Irreparable Harm That Would Result to SONCC Coho From Klamath Project Operations Pursuant to the Flows Prescribed in the 2013 BiOp. ............................................................ 16
1. Increased Flows Above and Beyond Those in the 2013 BiOp Are Necessary to Protect SONCC Coho From Irreparable Injury. .................. 18
2. The Tribe Seeks Implementation of Measures in the 2016 DTAT Guidance Document Pending Completion of Reinitiated Consultation. ... 20
3. An Injunction Is Necessary As Soon As Possible to Prevent Imminent Harm And Must Remain In Place Pending Completion of Consultation. . 23
VI. CONCLUSION ................................................................................................................. 25
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TABLE OF AUTHORITIES
CASES
Alliance for Wild Rockies v. Krueger, 950 F. Supp. 2d 1196 (D. Montana 2013) ............................................................................ 24
Amoco Prod. Co. v. Village of Gambell, AK, 480 U.S. 531 (1987) ............................................................................................................. 17
Arizona Cattle Growers’ Association v. USFWS, 273 F.3d 1229 (9th Cir. 2001) ............................................................................................... 11
Center for Biological Diversity v. U.S. Bureau of Land Management, 698 F.3d 1101 (9th Cir. 2012) ............................................................................................... 11
Cottonwood Envtl. Law Center v. U.S. Forest Serv., 789 F.3d 1075 (9th Cir. 2015) ........................................................................................ passim
Defenders of Wildlife v. Martin, 454 F. Supp. 2d 1085 (W.D. Wash. 2006) ........................................................................... 24
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) ............................................................................................................. 16
Gifford Pinchot Task Force v. USFWS, 378 F.3d 1059 (9th Cir. 2004) ................................................................................... 11, 14, 15
Greenpeace v. NMFS, 80 F. Supp. 2d 1137 (W.D. Wash. 2000) ............................................................................. 24
Karuk Tribe v. U.S. Forest Service, 681 F.3d 1006 (9th Cir. 2012) ............................................................................................... 23
Mt. Graham Red Squirrel v. Madigan 954 F.2d 1441 (9th Cir. 1992) .............................................................................................. 15
NRDC v. Evans, 364 F. Supp. 2d 1083 (N.D. Cal. 2003) .......................................................................... 12, 15
Oregon Natural Desert Ass’n v. Tidwell, 716 F. Supp. 2d 982, 1006 (D. Or. 2010) ................................................................. 11, 12, 13
Pacific Coast Federation of Fishermen’s Associations (PCFFA) v. U.S. Bureau of Reclamation, 138 F. Supp. 2d 1228 (N.D. Cal. 2001) ................................................. 4, 8, 21
Pacificans for a Scenic Coast v. Cal. DOT, Case No. 15-cv-02090-VC, 2016 U.S. Dist. LEXIS 119479 (N.D. Cal., Sep. 2, 2016) ................................................................................................ 11, 13
PCFFA v. Bureau of Reclamation, 226 Fed. Appx. 715, 717 (9th Cir. 2007) .............................................................................. 15
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Fed. R. Civ. P. 56(a) ..................................................................................................................... 9
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I. INTRODUCTION
This case involves the Federal Defendants’ failure to comply with their legal obligations
to protect certain imperiled anadromous salmon, which are central to the subsistence, culture,
and economy of the Plaintiff Hoopa Valley Tribe. In May 2013, pursuant to the requirements
of the Endangered Species Act (“ESA”), Defendant National Marine Fisheries Service
(“NMFS”) produced a Biological Opinion (“2013 BiOp”) and Incidental Take Statement
(“ITS”) that set specific standards governing Defendant Bureau of Reclamation’s (“BOR”)
operation of the Klamath Project (“Project”).1 Relevant here, NMFS set standards relating to
the maximum permissible incidence of fish disease downstream of the Project – disease that is
exacerbated by low flows resulting from BOR’s Project operations.
While operating under other terms of the 2013 BiOp approved by NMFS, BOR’s
Project operations resulted in significant exceedances of the fish disease standards in both 2014
and 2015, resulting in excessive and unlawful take of ESA-listed fish species. Under federal
regulations, these exceedances of the required standards have specific consequences and
mandate specific actions by the Federal Defendants: Pursuant to 50 C.F.R. § 402.16, NMFS
and BOR must reinitiate formal consultation with each other to evaluate Project operations and
develop measures necessary to avoid excessive take and to prevent jeopardy to the species.
During the reinitiated formal consultation, no action can be taken by the Federal Defendants
that could harm the ESA-listed species pending completion of the formal consultation, which
occurs upon publication of a new BiOp by NMFS. Here, despite the significant and undisputed
exceedances of the standards set by NMFS in the 2013 BiOp and ITS, NMFS and BOR have
failed to reinitiate formal consultation. The Tribe seeks summary judgment on its claim that
NMFS and BOR have unlawfully failed to reinitiate formal consultation and an order directing
them to reinitiate formal consultation regarding effects of Project operations on SONCC coho.
1 The 2013 BiOp is found at Exhibit A to the Declaration of Jason Cameron (Dkt. #33-1).
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Prior to and pending completion of the reinitiated formal consultation, the Tribe seeks an
injunction to prevent imminent and irreparable harm to the species that will occur if BOR
continues to operate the Project pursuant to only the minimum flows prescribed by the 2013
BiOp. Where agencies do not comply with procedural or substantive requirements of the ESA,
an injunction is the appropriate remedy to protect listed species until the government complies
with the law. The injunctive relief sought here would, in accordance with the best available
science, require additional flow releases necessary to limit incidence of fish disease to below the
levels deemed acceptable in the 2013 BiOp. To prevent imminent and irreparable harm to
SONCC Coho from Project operations, an injunction must be in place as soon as possible and
not later than March 1, 2017 and must continue until completion of the reinitiated consultation.
II. STATEMENT OF ISSUES
A. Whether Plaintiff is entitled to summary judgment on its First Claim for Relief,
which alleges that NMFS and BOR have unlawfully failed to reinitiate formal consultation
pursuant to 50 C.F.R. § 402.16 despite occurrence of take exceedances in 2014 and 2015?
B. Whether Plaintiff is entitled to injunctive relief, which is necessary to prevent
imminent and irreparable harm to SONCC Coho pending completion of formal consultation?
III. STATEMENT OF FACTS2
The Klamath River basin straddles northern California and southern Oregon. In 1997,
NMFS listed Southern Oregon/Northern California (SONCC) Coho salmon as a threatened
species under the ESA. 62 Fed. Reg. 24588 (May 6, 1997). In listing SONCC Coho as
2 There is no genuine dispute of material fact as to whether BOR and NMFS have reinitiated
formal consultation. Federal Defendants concede that take exceedances occurred in 2014 and 2015 and that BOR and NMFS have not reinitiated formal consultation. Dkt. #1, Exh. 2, p. 2; Dkt. #33, pp. 1, 19 (contending Federal Defendants have commenced “informal” consultation); Dkt. #60, fn. 8. Given the legal obligation in 50 C.F.R. § 402.16 to reinitiate formal consultation based on the undisputed take exceedances, Plaintiff is entitled to summary judgment on its First Claim for Relief against both Defendants. This Statement of Facts and supporting Declarations are relevant primarily to Plaintiff’s request for injunctive relief to protect threatened SONCC Coho from irreparable harm during the upcoming Spring 2017 juvenile outmigration.
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threatened, NMFS explained that water diversions and water withdrawals were major activities
responsible for the decline of Coho salmon in Oregon and California. 62 Fed. Reg. 24588, at
24592-93. In designating critical habitat for the SONCC Coho salmon under the ESA, NMFS
described that “essential features” of Coho habitat include water quantity, velocity, and
temperature. 64 Fed. Reg. 24,049, 24,059 (May 5, 1999). NMFS has identified the populations
of SONCC Coho affected by the Project as having a moderate to high (in the case of Upper
Klamath River populations) risk of extinction. 2013 BiOp at pp. 312, 327.
SONCC Coho have a three-year life cycle. Coho eggs typically hatch in March, emerge
two weeks after hatching as “fry,” and spend up to 15 months in fresh water. Fry become smolt
after 15 months and migrate to the ocean primarily between March and June. Water quantity
and quality are especially significant to the juvenile outmigration. Declaration of Sean Ledwin,
Dkt. # 44-1, ¶ 6. Spring months of March through June represent the peak of juvenile coho
presence in the mainstem Klamath River and are critical months in which to provide adequate
water in the mainstem Klamath for SONCC Coho. Id.; 2013 BiOp, at p. 270.
The Klamath Project (“Project”), authorized by Congress in 1905, consists of an inter-
related system of dams, canals, and pumping stations located in southern Oregon and northern
California. The Project is managed and operated by BOR and it provides water taken from the
Klamath River to irrigate approximately 200,000 acres of agricultural land each year. A map
of the Project and surrounding area is at pages 8-9 of the 2013 BiOp.
Project operations result in significant out-of-stream diversions of water. 2013 BiOp, at
33-34 (defining full Project irrigation supply as 390,000 acre-feet). One acre-foot equals
325,851 gallons. Diversions significantly impact flow levels and anadromous fish habitat in
the Klamath River downstream of Iron Gate Dam. The Klamath River’s natural flow regime is
significantly altered by Project operations. 2013 BiOp, p. 229. BOR, like all federal agencies,
must comply with the ESA and ensure that its operations do not result in jeopardy or unlawful
“take” of ESA-listed species, such as the SONCC Coho downstream of the Project and Iron
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U.S.C. § 1532(19) (defining “take”). Flows released from Iron Gate Dam contribute significant
and often the majority of instream flows utilized by fish in the mainstem Klamath River
between Iron Gate Dam and the Trinity River confluence. Ledwin Decl., Dkt. #44-1, ¶ 6.
BOR maintains ongoing discretionary management authority and control over the
Project. Since 1996, BOR has operated the Project with operating plans that identify minimum
flow levels in the Klamath River downstream of Iron Gate Dam for protection of fish. These
plans identify flows to be met – after agricultural diversions are satisfied – during particular
times of the year in cubic feet per second (“cfs”) of water as measured flowing past Iron Gate
Dam. Pacific Coast Federation of Fishermen’s Associations (PCFFA) v. U.S. Bureau of
Reclamation, 138 F. Supp. 2d 1228, 1232 (N.D. Cal. 2001). Water set aside by BOR for fish
purposes each year is referred to as the Environmental Water Account. 2013 BiOp, pp. 27-28.
As NMFS explained in the 2013 BiOp, fish disease is a significant factor limiting
survival and recovery of SONCC Coho in the Klamath River. 2013 BiOp, at pp. 220, 222, 341
(noting that “disease effects . . . likely have a substantial impact on the survival of juvenile coho
salmon in [the Upper Klamath River reach]).” See also Ledwin Decl., Dkt. #44-1, ¶ 7;
Declaration of Joshua Strange, Ph.D., ¶ ¶ 6-7. In fact, “[o]f all the adverse effects of the
proposed action, NMFS believes that the disease risk from C.shasta is the most significant to
coho salmon.” 2013 BiOp, at p. 377. Incidence of fish disease is significantly correlated to low
flows in the river and conversely increased flows are significantly correlated with decreasing
infection rates. Ledwin Decl., Dkt. #44-1, ¶¶ 8-11. “NMFS believes that the high incidence of
disease in certain years within the mainstem Klamath River results largely from the reduction in
3 Iron Gate Dam is located on the Klamath River downstream of the Project and is part of
the separate Klamath Hydroelectric Project, which consists of a series of dams operated on the Klamath River by PacifiCorp, a private company, pursuant to a federal license. 2013 BiOp, at p. 1. PacifiCorp coordinates with BOR to provide flow releases from Iron Gate Dam that are necessary to meet BOR’s obligations to SONCC Coho salmon under the ESA. Id., at p. 24.
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magnitude, frequency, and duration of mainstem flows from the natural flow regime under
which coho salmon evolved.” 2013 BiOp, p. 341. Increased spring flows dilute the prevalence
of the disease and reduce the transmission efficiency. 2013 BiOp, p. 342; see also Ledwin
In 2016, following the 2014 and 2015 take exceedances, U.S. Fish and Wildlife Service
(“FWS”) biologists developed technical memoranda summarizing recent studies and the best
available science relating to C. shasta infections in the Klamath River. Ledwin Second Decl.,
¶ 5. The technical memoranda provided fish managers with a contemporary understanding of
the science relating to C. shasta in the Klamath River and provided a scientific basis to inform
and support resource management decisions. Id., ¶ 6. A Disease Technical Advisory Team
(DTAT) of fish biologists, hydrologists, and other experts convened to evaluate the FWS
memoranda and other data and to prepare up-to-date recommendations on how to reduce fish
disease levels and infection rates in the Klamath River to acceptable levels. Id., ¶ 7.
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In November 2016, a DTAT subgroup produced a draft Guidance Document that
contains specific recommended measures to reduce C. shasta infection. Ledwin Second Decl.,
¶ 9, Exh. C. As NMFS had recognized in the 2013 BiOp, DTAT identified the relationship
between Project operations, low and altered flow regimes in the Klamath River, and incidence
of fish disease. Ledwin Second Decl., ¶ 8, Exh. C, pp. 2, 11, 16. DTAT identified “several
types of actions that could be implemented immediately that would have a high likelihood of
reducing the infection prevalence and severity of C. shasta in the Klamath River.” Ledwin
Second Decl., Exh. C, p. 4. These measures involve additional flow releases at specific times
and based on specific triggers designed to disrupt the agents that cause fish disease in the
Klamath River. Id., Exh. C, pp. 4, 7-12. The Guidance Document concludes:
The technical memoranda developed by the DTAT clearly demonstrate that disease rates can best be controlled by disrupting the habitat of M. speciosa and diluting C. shasta spores with increased flows. Perfecting the magnitude, duration, and intervals of these increased flow releases will be achieved over time through adaptive management practices; however, Klamath fisheries are in dire need of measures to alleviate high disease rates immediately (emphasis added).
Id., Exh. C, p. 16. The technical memoranda and resulting Guidance Document represents the
best available science as related to prevention of fish disease in the Klamath River. Ledwin
Second Decl., ¶ 10; PCFFA, 138 F.2d at 1249-50. DTAT presented the Guidance to NMFS
and BOR on November 9, 2016. Neither NMFS nor BOR have reinitiated formal consultation
to evaluate this new information or to incorporate it into a new BiOp and ITS. Id., ¶ 12. The
failure to reinitiate formal consultation, despite the undisputed take exceedances, is in violation
of 50 C.F.R. § 402.16. The Tribe is entitled to summary judgment on its First Claim for Relief.
Flow measures described in the Guidance Document would require at least 50,000 acre-
feet of water above and beyond that called for in the 2013 BiOp. Second Ledwin Decl., Exh. C,
p. 11.4 Thus, prior to and pending completion of the reinitiated formal consultation, and for
4 Full implementation of the Guidance Document measures could require more than 50,000
acre-feet of water. The Guidance Document specifically calls on BOR to reserve 50,000 acre-feet for implementation of the Spring dilution flows. Ledwin Second Decl., Exh. C., p. 11.
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the purpose of preventing imminent and irreparable injury to SONCC coho, the Tribe seeks an
order enjoining BOR to reserve and set aside no less than 50,000 acre-feet of water, in addition
to any amounts currently required for the 2013 BiOp Environmental Water Account (2013
BiOp, p. 27-28), for the purpose of implementing the flow measures described in the Guidance
Document and enjoining BOR to implement those flow measures prior to and during the Spring
Plaintiff filed the above-captioned lawsuit on July 29, 2016 and an amended complaint
on September 21, 2016. (Dkt. ## 1, 25).5 Plaintiff’s First Claim for Relief alleges that both
BOR and NMFS have acted unlawfully by failing to reinitiate formal consultation with the
other based on the undisputed take exceedances in 2014 and 2015. The claim against BOR and
this Court’s jurisdiction over such claim arises under the ESA citizen suit provision in 16
U.S.C. § 1540(g). The claim against NMFS and this Court’s jurisdiction over such claim arises
under the Administrative Procedure Act (APA), 5 U.S.C. §§ 704, 706.
Irrespective of whether a claim alleging violation of the ESA by a federal agency is
brought under the APA or directly under the ESA citizen suit provision, the APA’s “arbitrary
and capricious” standard of review applies. Western Watersheds v. Kraayenbrink, 632 F.3d
472, 481, 496 (9th Cir. 2011).6 That is, agency action will be set aside where it is arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law. Id. Here, the
failure to reinitiate formal consultation is not in accordance with 50 C.F.R. § 402.16. Summary
judgment is appropriate because there is no genuine dispute as to any material fact and Plaintiff
is entitled to judgment as a matter of law on its First Claim for Relief. Fed. R. Civ. P. 56(a).
5 Plaintiff also filed a corrected first amended complaint on October 19, 2016 to correct an
error related to the Fourth Claim for Relief, which is not at issue in this motion. 6 Although courts have adopted the APA standard of review when adjudicating ESA claims,
the scope of review for claims arising under the ESA citizen suit statute is not limited to any administrative record. Kraayenbrink, 632 F.2d at 497. Extra-record evidence is admissible. Id.
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V. ARGUMENT AND AUTHORITY
A. Plaintiff Is Entitled to Partial Summary Judgment Because NMFS and BOR Each Have A Legal Duty to Reinitiate Formal Consultation Based on the Take Exceedances That Occurred in 2014 and 2015 and Neither NMFS or BOR Have Reinitiated Formal Consultation.
Section 7(a)(2) of the ESA requires: “[e]ach Federal agency shall, in consultation with .
. . the Secretary [of Commerce or 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
[the critical] habitat of such species . . . .” 16 U.S.C. § 1536(a)(2). In this case, the 2013 BiOp
is the product of formal consultation that occurred between NMFS and BOR relating to Project
operations between the years 2013 through 2023. The 2013 BiOp and ITS set a limit on the
amount of incidental take that could result from fish disease and it is undisputed that such limit
was significantly exceeded by BOR in 2014 and 2015. Dkt. #1, Exh. 2, p. 2.
Based on the undisputed take exceedances, BOR and NMFS were required to reinitiate
formal consultation pursuant to 50 C.F.R. § 402.16, which provides: “Reinitiation of formal
consultation is required and shall be requested by the Federal Agency or by the Service, where
discretionary Federal involvement or control over the action has been retained or is authorized
by law and: (a) if the amount or extent of taking specified in the incidental take statement is
exceeded; . . . .” BOR is also required to reinitiate formal consultation pursuant to 50 C.F.R.
§ 402.14(i)(4). Here, it is undisputed that the extent of taking specified in the ITS was
significantly exceeded in both 2014 and 2015 by BOR and that formal consultation has not
been reinitiated by either BOR or NMFS. Dkt. #1, Exh. 2, p. 2; Dkt. #33, p. 1, 19; Dkt. #60, n.
8; Ledwin Second Decl., ¶ 12. Plaintiff is entitled to summary judgment on its First Claim for
Relief against BOR and NMFS. Cottonwood Envtl. Law Center v. U.S. Forest Serv., 789 F.3d
1075 (9th Cir. 2015) (affirming summary judgment in favor of plaintiff for failure to reinitiate).
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In Cottonwood, the Ninth Circuit affirmed the District Court’s order granting summary
judgment to the plaintiff on a failure to reinitiate claim and rejected a variety of different
defenses raised by the federal agency. The Ninth Circuit held that a plaintiff in a failure to
reinitiate claim is “not required to establish what a Section 7 consultation would reveal, or what
standards would be set, if the [federal agency] were to reinitiate consultation. Ideally, that is
the objective and purpose of the consultation process.” Id. at 1082. Finding the failure to
reinitiate claim ripe, the Ninth Circuit noted that “[b]ecause the alleged procedural violation –
failure to reinitiate consultation – is complete, so too is the factual development necessary to
adjudicate the case.” Id. at 1084. The Ninth Circuit also confirmed the continuing legal
obligation placed on the federal agencies to reinitiate consultation when triggers identified in
50 C.F.R. § 402.16 are met. Id. at 1086-1087 (noting “the ESA’s statutory command that
agencies consult to ensure the ‘continued existence’ of listed species”) (emphasis in original).
The language in 50 C.F.R. § 402.16 means what it says; that is, when the level of take
identified in the ITS is exceeded, reinitiation of formal consultation is mandatory. See, e.g.,
Cottonwood, 789 F.3d at 1088; Center for Biological Diversity v. U.S. Bureau of Land
Management, 698 F.3d 1101, 1108 (9th Cir. 2012) (stating: “If the amount or extent of
incidental taking is exceeded, the action agency ‘must immediately reinitiate consultation . . .
.”); Gifford Pinchot Task Force v. USFWS, 378 F.3d 1059, 1076-77 (9th Cir. 2004) (stating that
“discovery of new facts does not justify an ‘amendment’ to the BiOp, but mandates reinitiating
formal consultations”); Arizona Cattle Growers’ Association v. USFWS, 273 F.3d 1229, 1249
fn. 28, 1251 (9th Cir. 2001) (take limit triggers in ITS are “integral parts of statutory scheme,
determining, among other things, when consultation must be reinitiated”); Pacificans for a
Scenic Coast v. Cal. DOT, Case No. 15-cv-02090-VC, 2016 U.S. Dist. LEXIS 119479 (N.D.
Cal., Sep. 2, 2016) (reinitiation is required once a trigger identified in 50 C.F.R. § 402.16
occurs); Oregon Natural Desert Ass’n v. Tidwell, 716 F. Supp. 2d 982, 1006 (D. Or. 2010)
(agency violated ESA by failing to reinitiate [formal] consultation following take exceedances).
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The duty to reinitiate consultation under 50 C.F.R. § 402.16 lies with both the action
agency (here, BOR) and the consulting agency (here, NMFS). Salmon Spawning & Recovery
Alliance v. Gutierrez, 545 F.3d 1220, 1229 (9th Cir. 2008) (“[t]he duty to reinitiate consultation
lies with both the action agency and the consulting agency”); Gifford Pinchot, 378 F.3d at
1076-77 (stating “. . . FWS [the consulting agency] was obligated to reinitiate consultation
pursuant to 50 C.F.R. § 402.16”); Pacificans, 2016 U.S. Dist. LEXIS 119479, at pp. *36-37
(rejecting federal agency argument that consulting agency lacked duty to reinitiate).
The duty to reinitiate is placed on the consulting agency (as well as the action agency),
because reinitiation relates directly to the opinions, assumptions, and legal standards developed
and imposed by the consulting agency in its BiOp and ITS. When those standards are exceeded
or new information undermines the validity of the BiOp and ITS, both the consulting agency
and action agency have the duty to reinitiate.7 NRDC v. Evans, 364 F. Supp. 2d 1083, 1133
(N.D. Cal. 2003) (“the ITS serves as a check on the agency’s original decision that the
incidental take of listed species resulting from the proposed action will not violate section
7(a)(2) of the ESA.”). In contrast, when formal consultation is required in the first instance
(i.e., prior to the original agency action), the duty is placed only on the action agency to initiate
and request consultation because at that time the action agency is the party with primary
knowledge of the proposed action and the effects that it may have on ESA-listed species.
Reinitiation of formal consultation, however, arises under circumstances that directly relate to
the validity of the consulting agency’s own BiOp and ITS.
In their pending motion to dismiss or stay, Federal Defendants contend that they are
currently engaged in “informal consultation” pursuant to 50 C.F.R. § 402.13. Dkt. #33, pp. 1,
19. See also Dkt. #60, n. 8 (contending that Federal Defendants are “discussing on an
7 Even if the duty to reinitiate were placed solely on the action agency, Plaintiff would still
be entitled to summary judgment and injunctive relief here based on BOR’s failure to reinitiate. There is no dispute that BOR has failed to meet its legal duty to reinitiate formal consultation.
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‘informal basis’ reinitiating formal consultation”). Even if Federal Defendants were conducting
“informal” consultation (which they are not), that still would not comply with their legal duty
to reinitiate “formal” consultation under 50 C.F.R. § 402.16 due to the undisputed take
exceedances. Tidwell, 716 F. Supp. 2d at 1006 (informal consultation following violation of
ITS not consistent with duty to reinitiate formal consultation). 50 C.F.R. § 402.16 requires
reinitiation of formal consultation, which has not occurred in this case.
“Informal consultation” as provided for in 50 C.F.R. § 402.13 is a preliminary process
used to determine whether a proposed action is or is not likely to adversely affect listed species
or critical habitat. It is used to determine whether formal consultation and preparation of a
Biological Opinion will be required in the first instance for a proposed project. 50 C.F.R.
§ 402.13. “Informal consultation” has little to no relevance when determining whether
reinitiation of formal consultation is required.8 Through prior preparation of the existing BiOp
and ITS, the federal agencies have already determined that the action at issue here (operation of
the Project by BOR) is likely to adversely affect listed species including SONCC Coho located
downstream of the Project. The only relevant question at the reinitiation stage is whether one
of the triggers identified in 50 C.F.R. § 402.16 has been met. If such a trigger has been met,
such as the exceedance of take limits here, reinitiation of formal consultation is required. 50
C.F.R. § 402.16; Pacificans, 2016 U.S. Dist. LEXIS 119479, at *37 (N.D. Cal., Sep. 2, 2016)
(reinitiation of consultation required once a trigger identified in 50 C.F.R. § 402.16 occurs),
citing Cottonwood, 789 F.3d at 1088; Tidwell, 716 F. Supp. 2d at 1006 (informal consultation
not sufficient when ITS take limits exceeded). The discussions and correspondence allegedly
occurring at this time are neither formal nor informal consultation as described in the federal
8 In some limited circumstances, reinitiation of informal consultation could be appropriate
where new information discloses a possible impact to listed species as related to a project previously found to have no impact on listed species. But here, where there is no question as to whether Project operations affect listed species and where specific exceedances of take in an ITS have occurred, informal consultation has no role to play. Formal consultation is required.
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regulations – they are simply inter-agency discussions without legal effect, which are occurring
outside the parameters and process provided for by the ESA and its implementing regulations.
Federal Defendants suggest that these ongoing agency discussions are intended to lead
to a “revision” of the ITS prior to the 2017 irrigation season. This simply confirms that Federal
Defendants have no intention to reinitiate formal consultation on the 2013 BiOp or to alter the
minimum flow regime and permitted Project diversions that are at the root of the take
exceedances that occurred in 2014 and 2015 and that are likely to continue occurring. Ledwin
Decl., Dkt. #44-1, ¶¶ 23-24.9 Revision of the ITS would only modify BOR’s safe harbor from
liability for its takings of imperiled SONCC Coho while failing to address the causes of the
take exceedances or developing measures to reduce those excessive levels of take. Id. at ¶ 25.
Core assumptions underlying NMFS’ no-jeopardy determination in its 2013 BiOp, i.e., that
conditions for SONCC coho during 2013-2023 would improve and that disease incidence
would be reduced through implementation of the minimum flow regime and other measures,
have been proven false by 2014-2015 operations that resulted in skyrocketing disease levels.
Reinitiation of formal consultation is required to reevaluate Project operations affecting coho.
It is not lawful for the consulting agency to “revise” or “amend” an existing BiOp or
ITS outside of the formal consultation process where the authorized level of taking has been
exceeded by the action agency or other triggers identified in 50 C.F.R. § 402.16 have been met.
Gifford Pinchot, 378 F.3d at 1076-77. Thus, revision of the ITS, outside of formal
consultation, would be unlawful under the ESA. In Gifford Pinchot, after completing BiOps
relating to timber harvesting under the Northwest Forest Plan, FWS issued “amendments” to
the BiOps outside of formal consultation. Id. The Ninth Circuit ruled that the “amendments”
to the BiOps were unlawful and that reinitiation of formal consultation was required:
9 Federal Defendants’ assertions about their future intentions are also potentially irrelevant due to the recent election and change in Executive Branch leadership that will occur on January 20, 2017. While the Trump Administration’s policy direction in this case is not clear, the current legal obligation to reinitiate formal consultation based on the take exceedances is clear.
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As a general rule, such ‘updates’ are prohibited because they would render the consultation process ‘meaningless’ and would allow the FWS to issue ‘unsupported [BiOps] knowing that it could search for evidentiary support if the opinion was later challenged. Ariz. Cattle Growers’ Ass’n, 273 F.3d at 1245. As we have recognized, the discovery of new facts does not justify an ‘amendment’ to the BiOp, but mandates reinitiating formal consultations. Id. (citing 50 C.F.R. §402.16).
The FWS responds that the general rule does not apply here because, unlike Arizona Cattle Growers, the FWS did not supplement the record, but formally amended the BiOps and it is the amended BiOps that are at issue. The FWS argues that it has the flexibility to do just that, ‘implicitly’ interpreting a regulation. By the same token, the FWS asserts that this is not new evidence, but just data summarized from previously existing data.
We reject the FWS’ argument. If the data is new and the new data may affect the jeopardy or critical habitat analysis, then the FWS was obligated to reinitiate consultation pursuant to 50 C.F.R. § 402.16.
Project: “it is well settled that a previous agency determination in a Biological Opinion cannot
be amended or supplemented with post-determination analysis or evidence without reinitiating
the consultation process” (citing Gifford Pinchot, 378 F.3d at 1076-77)). Formal consultation
concludes with issuance of a BiOp. 50 C.F.R. § 402.02 (defining formal consultation).
In addition to the undisputed take exceedances that mandate reinitiation of formal
consultation under 50 C.F.R. § 402.16(a), reinitiation is also required under 50 C.F.R.
§ 402.16(b) because Project operations in 2014 and 2015 reveal significantly more harmful
effects of Project operations on SONCC coho than were considered by NMFS in the 2013
BiOp. NMFS assumed that SONCC coho abundance and productivity would improve in part
due to stable or lowered disease incidence. 2013 BiOp, at 377. Instead, contrary to NMFS’
assumptions, disease rates significantly increased, which calls into question a core assumption
underlying NMFS’ no-jeopardy determination. Reinitiation of formal consultation is required.
Federal Defendants have conceded that formal consultation is not ongoing at this time
and that NMFS is not preparing a new BiOp as would be required upon reinitiation of formal
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consultation. 50 C.F.R. §§ 402.14(g)(4); 402.16; Madigan, 954 F.2d at 1451; Evans, 364 F.
Supp. 2d at 1133. See Dkt. #33, pp. 1, 19 (contending that NMFS and BOR are engaged in
“informal” consultation and propose to “revise” the ITS); Dkt. #60, n. 8. Because the take
levels permitted by the ITS were exceeded (significantly) in 2014 and again in 2015,
reinitiation of formal consultation is required. Plaintiff requests that this Court grant partial
summary judgment in its favor on its First Claim for Relief in its First Amended Complaint.
B. Plaintiff Is Entitled To An Injunction to Prevent Imminent and Irreparable Harm That Would Result to SONCC Coho From Klamath Project Operations Pursuant to the Flows Prescribed in the 2013 BiOp.
Federal Defendants have failed to comply with their legal obligation to reinitiate formal
consultation. Thus, this Court should order Federal Defendants to reinitiate formal consultation
immediately. Prior to and pending completion of the reinitiated consultation, the Tribe seeks an
injunction prohibiting Federal Defendants from taking any action that could result in take or
jeopardy of SONCC Coho. Washington Toxics Coalition v. Environmental Protection Agency,
413 F.3d 1024, 1035 (9th Cir. 2005) (“the appropriate remedy for violations of the ESA
consultation requirements is an injunction pending compliance with the ESA”). The Tribe
seeks an injunction that would require BOR to release specific flows above and beyond the
minimum flows provided for in the 2013 BiOp, which have been demonstrably insufficient to
protect SONCC from excessive disease and take. Ledwin Decl., Dkt. #44-1, ¶¶ 13-21. More
specifically, the Tribe seeks an injunction compelling BOR to reserve water and release
additional flows as called for in the 2016 DTAT Guidance Document, which represents the best
available science related to the prevention of fish disease in the Klamath River. Ledwin Second
Decl., ¶ 10, 19; Strange Decl., ¶ 12-13. Alternatively, the Tribe seeks an injunction prohibiting
all irrigation deliveries to the Project pending completion of reinitiated formal consultation.
A plaintiff seeking injunctive relief generally must satisfy a four-factor test by showing
that: (1) plaintiff has suffered an irreparable injury; (2) that remedies available at law, such as
monetary damages, are inadequate to compensate for that injury; (3) that considering the
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balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and
(4) that the public interest would not be disserved by a permanent injunction. Cottonwood, 789
F.3d at 1088, citing eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). However,
in cases involving the ESA, Congress has stripped courts “of at least some of their equitable
discretion in determining whether injunctive relief is warranted.” Id. at 1090. “Congress has
spoken in the plainest of words, making it abundantly clear that the balance has been struck in
favor of affording endangered species the highest of priorities . . . .” Sierra Club v. Marsh, 816
F.2d 1376, 1383 (9th Cir. 1987); see also TVA v. Hill, 437 U.S. at 173 (finding that Congress in
enacting the ESA plainly intended to halt and reverse the trend towards species extinction,
whatever the cost, and finding injunction was appropriate remedy when a nearly-completed,
multimillion-dollar dam threatened and endangered snail darter and its critical habitat).
Regarding the third factor (“balancing of equities”) of the traditional test, “courts do not
have discretion to balance parties’ competing interests in ESA cases because Congress
‘afford[ed] first priority to the declared national policy of saving endangered species.’”
Cottonwood, 789 F.3d at 1090, citing TVA v. Hill, 437 U.S. 153, 185 (1978); see also Amoco
Prod. Co. v. Village of Gambell, AK, 480 U.S. 531, 543 n. 9 (explaining that ESA “foreclose[s]
the traditional discretion possessed by an equity court”). Regarding the fourth factor (“public
interest”), Congress, in enacting the ESA, “established an unparalleled public interest in the
‘incalculable’ value of preserving endangered species.” Id., citing Hill, 437 U.S. at 187-88.
The second factor regarding adequacy of legal remedies such as monetary damages is generally
not applicable in environmental cases and especially in ESA cases. Cottonwood, 789 F.3d at
1090 (“[i]t is the incalculability of the injury that renders the ‘remedies available at law, such as
monetary damages . . . inadequate”); Amoco, 480 U.S. at 545 (“Environmental injury, by its
nature, can seldom be adequately remedied by money damages”). Thus, the only relevant
inquiry in cases involving species listed as endangered or threatened under the ESA is whether
an injunction is necessary to prevent irreparable injury. Cottonwood, 789 F.3d at 1090-1091.
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Regarding the showing of irreparable injury, the Ninth Circuit has long recognized an
exception to the traditional test when addressing violations of ESA consultation requirements.
Starting with Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1985), the Court held that “because
‘[i]rreparable damage is presumed to flow from a failure properly to evaluate’ environmental
impacts of an agency action, an injunction is typically the appropriate remedy for a Section 7
violation.” Cottonwood, 789 F.3d at 1088, citing Thomas, 753 F.2d at 764.10 In Wash. Toxics
Coalition, 413 F.3d at 1035, the Court reiterated that “the appropriate remedy for violations of
the ESA consultation requirements is an injunction pending compliance with the ESA.”
Here, it is unnecessary for this Court to rely on any presumption of irreparable injury,
because the presence of such injury is well established due to the unlawful and excessive taking
of SONCC Coho in 2014 and 2015 resulting from Project operations under the minimum flow
regime prescribed in the 2013 BiOp and the certainty of future imminent irreparable injury in
the absence of injunctive relief. Strange Decl., ¶¶ 6-8, 11-13; Ledwin Decl., Dkt. #44-1, ¶ 13-
21; Ledwin Second Decl., Exh. C, p. 16 (noting immediate need for increased flow measures).
Project operations in 2014 and 2015 confirmed that the minimum flow regime prescribed in the
2013 BiOp is inadequate to adequately suppress disease levels. Ledwin Decl., Dkt. 44-1, ¶ 13-
21. Continued Project operations pursuant to that flow regime, as occurred during juvenile coho
10 In Cottonwood, a majority of the three-member panel held that recent Supreme Court
decisions relating to the issuance of preliminary injunctions in NEPA cases may preclude a presumption of irreparable injury in a case involving procedural violations of the ESA. 789 F.3d at 1088-1091. The dissent in Cottonwood argued that the Ninth Circuit’s settled precedent is not inconsistent with the Supreme Court and the panel had no authority to implicitly repeal binding Ninth Circuit precedent. Id. at 1092-93. There is no en banc Ninth Circuit opinion resolving whether the long-standing presumption of irreparable injury arising from procedural violations of the ESA remains proper. The panel in Cottonwood noted that that even if the presumption of irreparable injury was no longer proper, “[i]n light of the stated purposes of the ESA in conserving endangered and threatened species and the ecosystems that support them, establishing irreparable injury should not be an onerous task for plaintiffs.” Id. at 1091.
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outmigration in 2014 and 2015, will result in unlawful take and potential jeopardy to SONCC
Coho as soon as the Spring 2017 juvenile outmigration. Id.; Strange Decl., ¶ 6-7.
1. Increased Flows Above and Beyond Those in the 2013 BiOp Are Necessary to Protect SONCC Coho From Irreparable Injury.
BOR implemented the flow regime from the 2013 BiOp in 2014 and 2015. Ledwin
Decl., Dkt. #44-1, ¶ 11-12. Project operations pursuant to only the minimum flows prescribed
in the BiOp in those years resulted in skyrocketing levels of fish infection that greatly exceeded
the maximum take levels prescribed in the 2013 BiOp and ITS. Id. Infection of fish leads to
harm and or death of a species on the brink of extinction. 2013 BiOp, pp. 220, 222, 341, 343,
350; Strange Decl., ¶¶ 6-7. Prior to implementation of the 2013 BiOp flows, no year in the
2006-2013 time-period recorded infection rates above 49%. Id. The infection rate was 81% in
2014 and 91% in 2015 due to the minimal flows released at Iron Gate Dam pursuant to the 2013
BiOp. Id. This increased infection rate correlated directly with the implementation of the 2013
BiOp flows. Id. Project operations pursuant to only the 2013 BiOp flows will continue to
produce an excessive level of infection (in excess of 50%) and corresponding take during the
Spring 2017 juvenile outmigration and could jeopardize the continued existence of SONCC
Coho. Id., ¶¶ 13-20; Strange Decl., ¶¶ 7, 11-14.
There is a demonstrated and significant correlation between low flows (such as those in
the 2013 BiOp) and increased infection rates (such as those experienced in 2014 and 2015).
Ledwin Decl., Dkt. #44-1, ¶¶ 7-11. This correlation is supported by the observation of reduced
disease infection and mortality estimates in wetter years with higher flows and vice versa. Id.,
¶¶ 11-18. The 2013 BiOp minimum flows for April, May, and June are respectively 1325 cfs,
1175 cfs, and 1025 cfs as measured at Iron Gate Dam. Id., ¶ 13. As confirmed by Project
operations in 2014 and 2015, these flow levels are demonstrably insufficient to protect fish
from increased disease levels. Id., ¶¶ 11-20. For example, in 2008 (the year with the previous
maximum disease infection rate of 49%), flows during that same time period (April – June )
were much higher than the 2013 BiOp flows - approximately 3,000 cfs from April 1 to May 1,
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2008 at Iron Gate Dam, dropping to 2,000 cfs by June 1, 2008. Id., ¶ 13. Flows prescribed in
the 2013 BiOp are insufficient to achieve the goal of reducing infection rates below 49%. Id.
Between 2006 and 2015, there were five years in which infection rates measured well
below 49%. Ledwin Decl., Dkt. #44-1, ¶ 15. In 2012, the year with the median level of disease
in those five years (30% infection rate), flows were higher than those in 2008 (49% infection
rate) and significantly higher than the minimum flows prescribed in the 2013 BiOp. Flows in
2012 approached approximately 4,000 cfs in mid and late April of that year (as compared to the
1,325 cfs level prescribed in the 2013 BiOp). Id. Flows in April, May, and June 2012 were
always higher (often significantly higher) than the minimum flows in the 2013 BiOp. Id. DTAT
recommends Spring flow releases of 3,000-4,000 cfs from Iron Gate Dam when triggers are
met to limit disease below acceptable levels. Ledwin Second Decl., Exh. C, pp. 11-12. Joshua
Strange’s declaration also identifies increased Spring flows as critical. Strange Decl, ¶ 11-13.
Federal Defendants assert that infection rates were below the maximum permitted levels
in 2016. Even if that proves true, increased precipitation and unusual events allowed BOR to
release higher flows into the river in the winter and spring of 2016 that were far in excess of the
minimum flows prescribed in the 2013 BiOp. Ledwin Decl., Dkt. #44-1, ¶ 16. This included a
controlled spill event for dam safety purposes in March 2016 that contributed to reduced
disease infection rates. Id. DTAT reported that this unusual deep flushing flow event with a
peak discharge of 11,100 cfs had a significant effect on limiting disease. Ledwin Second Decl.,
Exh. C, p. 9. This was only the second such deep flushing event in the past ten years. Id.
Thus, 2016 Project operations do not contradict Plaintiff’s argument that operating the Project
pursuant to only the 2013 BiOp flows will result in unlawful take. The 2016 data supports
Plaintiff’s argument that increased flows at Iron Gate Dam in excess of flows prescribed in the
2013 BiOp are required for BOR to avoid unlawful take of SONCC coho in Spring 2017.
The Tribe not only claims that BOR’s operation of the Project in accordance with the
2013 BiOp has unlawfully taken SONCC coho in 2014 and 2015, but also that BOR will take
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SONCC coho in the future (as soon as Spring 2017) if it is permitted to operate the Project at
the minimum flow levels authorized by the 2013 BiOp. Ledwin Decl., Dkt. #44-1, ¶ 20;
Strange Decl., ¶ 7. Based on this imminent injury to SONCC coho, the Tribe seeks injunctive
relief that would prevent BOR from operating the Project pursuant to only the 2013 BiOp flows
and mandating implementation of a flow regime, in accordance with the best available science,
that will reduce disease levels pending completion of formal consultation and a new BiOp.
2. The Tribe Seeks Implementation of Measures in the 2016 DTAT Guidance Document Pending Completion of Reinitiated Consultation.
The appropriate scope of injunctive relief relating to BOR’s violation of its consultation
obligations relating to the Klamath Project was considered in PCFFA, 138 F. Supp. 2d at 1248-
1249. In PCFFA, the Court recognized plaintiffs were entitled to an injunction as a result of
BOR’s failure to complete consultation on Project operations. Id. at 1247-1250. The Court
noted that, in cases involving procedural ESA violations, courts typically enjoin any further
project action pending compliance with consultation. Id. at 1249. Yet, in PCFFA, instead of
enjoining any further operation of the Project, the Court more narrowly enjoined BOR from
sending irrigation deliveries to the Project whenever flows in the river dropped below certain
levels identified and recommended in a scientific report submitted by plaintiffs. Id. at 1249-50.
Similarly here, Plaintiff is entitled to an injunction that would enjoin BOR from
diverting any water from the Klamath River for purposes of sending irrigation deliveries to the
Project pending reinitiation and completion of formal consultation. Id. at 1249. Yet, as in
PCFFA, Plaintiff seeks narrower injunctive relief to specifically address the imminent threat of
irreparable harm that SONCC coho are facing in the Spring 2017 juvenile outmigration.
Following the 2014 and 2015 take exceedances, DTAT convened to review the best
available science on how to reduce fish disease levels and infection rates to acceptable levels.
Ledwin Second Decl., ¶¶ 4-9. DTAT members have experience specific to the Klamath River
and its fishery, as well as the Klamath Project and its operations. Id., ¶ 4. A subgroup of
DTAT reviewed technical memoranda prepared by FWS biologists and prepared a Guidance
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Document with specific implementation recommendations for 2017 and beyond. Id., ¶ 7, 9,
Exh. C. The Guidance Document represents the best available science relating to prevention
of fish disease in the Klamath River. Id., ¶ 10; PCFFA, 138 F.2d at 1249-50. The DTAT
subgroup provided the Guidance Document to NMFS and BOR on November 9, 2016. Id.,
¶ 11. NMFS and BOR have not reinitiated formal consultation to evaluate this new information
or to incorporate it into a new BiOp and ITS. Id., ¶ 12. As with the science presented to the
Court in PCFFA, the Guidance Document is “based upon extensive input from the members of
a technical team . . . and was created specifically to address the situation which [BOR]
apparently still is confronting . . . .” PCFFA, 138 F.2d at 1249. Plaintiff seeks a narrowly
tailored injunction mandating BOR to implement flow measures identified in the Guidance
Document prior to and pending completion of reinitiated formal consultation. Id., ¶ 19.
DTAT convened to “address the critical situation and identify management guidance to
address this problem” of excessive take resulting from fish disease in the Klamath River.
Ledwin Second Decl., Exh. C, p. 1. DTAT synthesized information in the memoranda
prepared by FWS and other data to “provide management guidance intended to lower the
incidence of C. shasta in the Klamath River mainstem for both Chinook and Coho salmon.” Id.,
Exh. C, p. 2. In the Guidance Document, DTAT identified “several types of actions that could
be implemented immediately that would have a high likelihood of reducing the infection
prevalence and severity of C. shasta in the Klamath River.” Id., Exh. C., p. 4.
Measures recommended by DTAT involve release of additional flow into the Klamath
River from Iron Gate Dam above and beyond the minimum flow levels in the 2013 BiOp.
Ledwin Second Decl., ¶ ¶ 19-20. The Guidance Document calls for: (a) surface flushing flows
during the winter period (Nov. 1 – April 30) of no less than 6,030 cfs from Iron Gate Dam for a
72 hour period for the purpose of moving surface sediments that provide habitat for disease
hosts; (b) deep flushing flows during the period of Feb. 15 to May 31 of no less than 11,250 cfs
from Iron Gate Dam for a period of at least six hours in 2017; and (c) reservation of 50,000
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acre-feet of water for purposes of implementing spring disease dilution and disruption flows if
certain disease triggers are met. Id., Exh. C, pp. 7-11.11 As support for this last measure,
DTAT stated that: “Reduced spring flows exacerbate the transmission of actinospores to
rearing and migrating juvenile fish, causing significant population level impacts. Flow
increases can play an important role in mitigating C.shasta, with greater water volumes and
velocities resulting in reduced disease transmission.” Id., Exh. C, p. 11. DTAT recognized a
direct correlation between increased flows and reduced disease levels. Id., Exh. C, p. 11-12.
“Spring flows similar to average natural flow conditions are required to make meaningful
reductions in C. shasta transmission during critical outmigration periods.” Id., Exh. C, p. 11;
Strange Decl., ¶¶ 10-13 (describing importance of Spring dilution flows to reduce disease).
DTAT recommends the proposed measures be implemented immediately, in advance of
the 2017 juvenile outmigration, and in subsequent years. Id., Exh. C, pp. 4, 16. DTAT, in
compiling and reviewing the best available science, concluded that “the technical memoranda
developed by the DTAT clearly demonstrate that disease rates can best be controlled by
disrupting the habitat of M. speciosa and diluting C. shasta spores with increased flows.” Id.,
Exh. C, p. 16. This is consistent with NMFS’ own conclusions in the 2013 BiOp as well as the
historic data showing the correlation between flow and disease incidence. Ledwin Decl., Dkt.
#44-1, ¶¶ 13-21; Strange Decl., ¶¶ 8-12. DTAT concluded by stressing the need for immediate
implementation, stating that “Klamath fisheries are in dire need of measures to alleviate high
disease rates immediately.” Ledwin Second Decl., Exh. C, p. 16; Strange Decl., ¶¶ 7, 12-14.
3. An Injunction Is Necessary As Soon As Possible to Prevent Imminent Harm And Must Remain In Place Pending Completion of Consultation.
An injunction to prevent continued harmful operations pending completion of re-
11 DTAT recommends release of other high magnitude flows to move gravel and provide
large-scale disruption of polychaete colonies when possible, but DTAT did not provide specific recommendation for flow magnitude or duration for this measure. DTAT also recommended a fall/early winter flushing flow, which BOR implemented in November 2016.
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initiated consultation is critical given the substantive mandate imposed on federal agencies by
Section 7(a)(2) of the ESA to insure that their actions are not likely to jeopardize the continued
existence of endangered or threatened species. 16 U.S.C. § 1536(a)(2); Strange Decl., ¶ 7, 12-
14. Consultation with the Secretary (here, NMFS) is the procedural mechanism put in place to
ensure that no harm will occur to species a result of federal agency actions. Karuk Tribe v. U.S.
