Team 8 CA. NO. 19-000987 __________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE TWELFTH CIRCUIT ____________________________________________________ NEW UNION OYSTERCATCHERS, INC., Plaintiff – Appellant, v. UNITED STATES ARMY CORPS OF ENGINEERS, Defendant – Appellee, and CITY OF GREENLAWN, NEW UNION Defendant – Appellant __________________________ BRIEF OF APPELLANT, NEW UNION OYSTERCATCHERS, INC. __________________________ ON APPEAL FROM UNITED STATES DISTRICT COURT, DISTRICT OF NEW UNION __________________________ Oral Argument Requested __________________________ Attorneys for Appellant, NEW UNION OYSTERCATCHERS, INC.
Transcript
Team 8
CA. NO. 19-000987 __________________________
IN THE UNITED STATES COURT OF APPEALS FOR
THE TWELFTH CIRCUIT ____________________________________________________
NEW UNION OYSTERCATCHERS, INC.,
Plaintiff – Appellant,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, Defendant – Appellee,
and
CITY OF GREENLAWN, NEW UNION
Defendant – Appellant __________________________
BRIEF OF APPELLANT, NEW UNION OYSTERCATCHERS, INC.
__________________________
ON APPEAL FROM UNITED STATES DISTRICT COURT,
DISTRICT OF NEW UNION __________________________
Oral Argument Requested
__________________________
Attorneys for Appellant, NEW UNION OYSTERCATCHERS, INC.
i
TABLE OF CONTENTS
Page(s)
TABLE OF CONTENTS ......................................................................................... i
TABLE OF AUTHORITIES ................................................................................... iv
I. GREENLAWN DOES NOT HAVE A RIGHT TO CONTINUE WATER WITHDRAWALS AT ITS EXISTING RATE DURING DROUGHT CONDITIONS. ............................................................................................ 6
A. The Principles of Regulated Riparianism Provide a More Equitable
System To Allocate Water Rights in a Changing Climate. .............. 7
B. Even if This Court Analyzes Greenlawn’s Water Use Under an Insufficient Pure Riparian Theory, Greenlawn’s Non-Essential Use During Drought Conditions Was Unreasonable. .............................. 10
1. Public interest precludes Greenlawn from withdrawing
water such that it drains the river. ........................................ 10 2. Greenlawn’s use of water was unreasonable under the
Restatement 2nd of Torts. .................................................... 12
II. THE ARMY CORPS OF ENGINEERS MUST CONSULT UNDER SECTION 7 OF THE ENDANGERED SPECIES ACT BECAUSE INCREASING WATER FLOW TO GREENLAWN DURING DROUGHT CONDITIONS WAS A DISCRETIONARY ACTION. ......... 14
ii
TABLE OF CONTENTS (CONT.) Page(s)
A. The Narrow Non-Discretionary Exception Does Not Apply
Because ACOE Exercised Its Judgment and Chose To Increase Water Flow into Bypass Reach Contrary to the Terms of the WCM. ............................................................................................... 14
1. The non-discretionary exception to the consultation
requirement is confined to actions specifically mandated by Congress. .............................................................................. 15
2. The specific drought provisions of the WCM supersede its general provision. ................................................................. 17
B. ACOE Must Balance the Congressional Authorizations of the
Howard Runnet Dam Works. ........................................................... 18 III. GREENLAWN VIOLATED THE ENDANGERED SPECIES ACT
BECAUSE IT DESTROYED THE MUSSEL’S RIVER HABITAT BY WITHDRAWING NEARLY ALL OF THE WATER UPSTREAM. ......... 19
A. The Indirect Harm Done to the Mussels Is a Harm and Is Therefore
a Taking of the Mussels Under the ESA. ......................................... 20 B. Greenlawn’s Actions Are the Proximate Cause of the Habitat
Modification Harming the Mussels. ................................................. 22 IV. COURTS MAY NOT BALANCE THE EQUITIES TO WITHHOLD
INJUNCTIVE RELIEF WHEN A VIOLATION OF THE ESA WILL THREATEN THE CONTINUED EXISTENCE OF AN ENDANGERED SPECIES. ..................................................................................................... 24
A. TVA Forecloses Courts from Exercising Their Traditional
Equitable Discretion when Species Extirpation Is at Stake, Even at the Expense of Enjoining a Beneficial Municipal Activity. ............. 25
B. The Language of the ESA in View of the Statutory Scheme and
Legislative Intent Prohibits Courts from Exercising Their Equitable Discretion. ........................................................................ 26
1. The plain meaning of section 1540(g) in the context of the
ESA demonstrates legislative intent to protect endangered species at all costs. ............................................................... 26
2. The legislative history of the ESA demonstrates Congress’
intent to specifically limit courts’ discretion. ....................... 27
iii
TABLE OF CONTENTS (CONT.) Page(s)
C. Injunctive Relief Is the Only Remedy by Which Courts Can Fulfill
Their Judicial Role To Enforce the ESA’s Explicit Mandates and Effect Its Purpose To Protect Endangered Species. ......................... 28
REGULATED RIPARIAN MODEL WATER CODE (JOSEPH W. DELLAPENA 1997) .......... 8, 9 RESTATEMENT (SECOND) OF TORTS (AM. LAW INST. 1975) ...................................... 6, 10, 12, 13
Supreme Court of the United States Cases
Am. Elec. Power Co. v. Connecticut, 564 U.S. 410 (2011) ...................................................................................... 7 Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687 (1995) ...................................................................................... 20, 22, 23 Carey v. Donohue, 240 U.S. 430 (1916) ...................................................................................... 27 Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) ...................................................................................... 15
v
TABLE OF AUTHORITIES (CONT.) Page(s)
D. Ginsberg & Sons, Inc. v. Popkin, 285 U.S. 204 (1932) ...................................................................................... 17 Hudson Cty. Water Co. v. McCarter, 209 U.S. 349 (1908) ...................................................................................... 10 INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) ...................................................................................... 27 Jerome B. Grubart v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995) ...................................................................................... 22 Lopez v. Davis, 531 U.S. 230 (2001) ...................................................................................... 15 Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ...................................................................................... 24 Manigault v. Springs, 199 U.S. 473 (1905) ...................................................................................... 9 Miller v. French, 530 U.S. 327 (2000) ...................................................................................... 26, 27 Milwaukee & S. P. R. Co. v. Kellogg, 94 U.S. 469 (1876) ........................................................................................ 22 Monsanto v. Geertson Seed Farms, 561 U.S. 139 (2010) ...................................................................................... 24 Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644 (2007) ...................................................................................... 14, 15, 16 Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988) ...................................................................................... 11 Pierce v. Underwood, 487 U.S. 552 (1988) ...................................................................................... 1 PPL Mont., LLC v. Montana, 565 U.S. 576 (2012) ...................................................................................... 10 RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639 (2012) ...................................................................................... 17 Russello v. United States, 464 U.S. 16 (1983) ........................................................................................ 27 Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978) ...................................................................................... passim United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53 (1913) ........................................................................................ 10 United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483 (2001) ...................................................................................... 28 United States v. River Rouge Improvement Co., 269 U.S. 411 (1926) ...................................................................................... 10 United States v. Willow River Power Co., 324 U.S. 499 (1945) ...................................................................................... 7 Util. Air Regulatory Grp. v. EPA, 573 U.S. 302 (2014) ...................................................................................... 26
vi
TABLE OF AUTHORITIES (CONT.) Page(s)
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) ...................................................................................... 24, 27, 28, 29
United States Circuit Court Cases
Animal Welfare Inst. v. Martin, 623 F.3d 19 (1st Cir. 2010) ........................................................................... 21, 25 Aransas Project v. Shaw, 775 F.3d 641 (5th Cir. 2014) ......................................................................... 22 Autolog Corp. v. Regan, 731 F.2d 25 (D.C. Cir. 1984) ........................................................................ 22 Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832 (9th Cir. 2003) ......................................................................... 24 Envtl. Prot. Info. Ctr. v. Simpson Timber Co., 255 F.3d 1073 (9th Cir. 2001) ....................................................................... 20 Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781 (9th Cir. 1995) ........................................................................... 20 Friends of Earth v. United States Navy, 841 F.2d 927 (9th Cir. 1988) ......................................................................... 26, 27, 29 Karuk Tribe of Cal. v. United States Forest Serv., 681 F.3d 1006 (9th Cir. 2012) ....................................................................... 15, 19 Loggerhead Turtle v. Cty. Council of Volusia Cty., 148 F.3d 1231 (11th Cir. 1998) ..................................................................... 21 Lopardo v. Fleming Cos., 97 F.3d 921 (7th Cir. 1996) ........................................................................... 13 Nat’l Audubon Soc’y., Inc. v. Davis, 307 F.3d 835 (9th Cir. 2002) ......................................................................... 22 NRDC v. Jewell, 749 F.3d 776 (9th Cir. 2014) ......................................................................... 19 Owner-Operator Indep. Drivers Ass’n v. Swift Transp. Co., 367 F.3d 1108 (9th Cir. 2004) ....................................................................... 28 Ramsey v. Kantor, 96 F.3d 434 (9th Cir. 1996) ........................................................................... 21 Sierra Club v. Marsh, 816 F.2d 1376 (9th Cir. 1987) ....................................................................... 25, 27, 28 South Dakota v. Ubbelohde, 330 F.3d 1014 (8th Cir. 2003) ....................................................................... 18 Strahan v. Coxe, 127 F.3d 155 (1st Cir. 1997) ......................................................................... 21, 29 Turtle Island Restoration Network v. Nat’l Marine Fisheries Serv., 340 F.3d 969 (9th Cir. 2003) ......................................................................... 19 Tyler v. Wilkinson, 24 F. Cas. 472 (1827) .................................................................................... 7, 10, 12 United States v. Mass. Water Res. Auth., 256 F.3d 36 (1st Cir. 2001) ........................................................................... 27
vii
TABLE OF AUTHORITIES (CONT.) Page(s)
United States v. Painesville, 644 F.2d 1186 (6th Cir. 1981) ....................................................................... 28
Federal District Court Cases Marbled Murrelet v. Pac. Lumber Co., 880 F. Supp. 1343 (N.D. Cal. 1995) ............................................................. 20
State Court Cases City of Waterbury v. Town of Wash., 260 Conn. 506 (2002) .................................................................................... 8 Harris v. Brooks, 225 Ark. 436 (1955) ...................................................................................... 13 Hendrick v. Cook, 4 Ga. 241 (1848) ............................................................................................ 12 Joslin v. Marin Mun. Water Dist., 67 Cal. 2d 132 (1967) .................................................................................... 10, 12 Manry v. Robison, 122 Tex. 213 (1932) ...................................................................................... 6 Mattaponi Indian Tribe v. Commonwealth, 72 Va. Cir. 444 (Cir. Ct. 2007) ...................................................................... 7 Muench v. Pub. Serv. Comm’n, 261 Wis. 492 (1952) ...................................................................................... 11 Orion Corp. v. State, 109 Wash. 2d 621 (1987) .............................................................................. 11 Pendergrast v. Aiken, 293 N.C. 201 (1977) ...................................................................................... 6 Pyle v. Gilbert, 245 Ga. 403 (1980) ........................................................................................ 13 Wash. State Geoduck Harvest Ass’n v. Dep’t of Nat. Res., 124 Wash. App. 441 (2004) .......................................................................... 11
Secondary Materials 1 Amy Kelley, Water and Water Rights § 7.01 (3rd ed. 2019) ............................................. 6, 7, 8 Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 183 (2012) ........................ 17 Center for Disease Control and Prevention Blog Administrator,
Zika, Mosquitos, and Standing Water, Public Health Matters Blog (Mar. 22, 2016), https://blogs.cdc.gov/publichealthmatters/2016/03/zikaandwater/ ............... 9
viii
TABLE OF AUTHORITIES (CONT.) Page(s)
Craig Bell & Norman K. Johnson,
State Water Laws and Federal Water Uses: The History of Conflict, the Prospects for Accommodation, 21 Envtl. L. 1 (1991) ................................... 7
Dave Owen, Critical Habitat and the Challenges of Regulating Small Harms, 64 FLA. L. REV. 141 (2011) ........................................................................... 15
Foreseeability, Black’s Law Dictionary (11th ed. 2019) .......................................... 22 Joseph W. Dellapena, Global Climate Disruption and Water Law Reform, 15 WIDENER L. REV. 409 (2010) ................................................................... 7 Patz et al.
30 Effects of Environmental Change on Emerging Parasitic Diseases 12–13, INT’L J. FOR PARASITOLOGY (2000) ................................................... 9
Public-Trust Doctrine, Black’s Law Dictionary (11th ed. 2019) ............................. 10 Stephen Draper, Sharing Water in Times of Scarcity 54 (AMERICAN SOCIETY OF CIVIL ENGINEERS) (2006) ....................................... 7
This case involves an appeal from the United States District Court for New Union.
R. at 1. Jurisdiction properly lies in the United States Court of Appeals for the Twelfth Circuit
because this case is an appeal from a final decision in a District Court of the United States.
28 U.S.C. § 1291. All parties have filed a timely Notice of Appeal. R. at 1.
STANDARD OF REVIEW
The facts here are “essentially undisputed.” R. at 5. The issues here are questions of law,
which are reviewed de novo. Pierce v. Underwood, 487 U.S. 552, 558 (1988).
STATEMENT OF ISSUES
I. WHETHER GREENLAWN HAS A RIGHT TO CONTINUE UNCONSTRAINED WATER WITHDRAWALS DURING DROUGHT CONDITIONS IN A CHANGING CLIMATE WHEN DOING SO DRAINS THE RIVER AND VIOLATES PUBLIC INTERESTS.
II. WHETHER THE ARMY CORPS OF ENGINEERS ACTED WITH DISCRETION
AND THEREFORE MUST CONSULT UNDER SECTION SEVEN OF THE ENDANGERED SPECIES ACT WHEN IT INCREASED FLOW INTO THE BYPASS REACH IN CONTRADICTION WITH THE REQUIREMENTS OF THE WATER CONTROL MANUAL DURING TIMES OF DROUGHT.
III. WHETHER GREENLAWN’S ACTIONS CONSTITUTED A “TAKE” UNDER
SECTION NINE OF THE ENDANGERED SPECIES ACT WHEN ITS WATER WITHDRAWALS SIGNIFICANTLY MODIFIED THE HABITAT OF THE ENDANGERED OVAL PIGTOE MUSSLE IN A WAY THAT WAS FORESEEABLE.
IV. WHETHER THE COURT MAY BALANCE THE EQUITIES WHEN TENNESSEE
VALLEY AUTHORITY V. HILL FORECLOSED THE COURTS FROM EXERCISING EQUITABLE DISCRETION IN CASES ARISING FROM VIOLATION OF THE ENDANGERED SPECIES ACT.
STATEMENT OF THE CASE
Statement of Facts
On May 15, 2017 New Union entered a drought emergency. R. at 8. The drought
emergency was exacerbated by the Army Corps of Engineers (“ACOE”) failing to restrict water
flow into the Bypass Reach after the City of Greenlawn, New Union (“Greenlawn”) protested the
2
restrictions. R. at 8. Greenlawn, believing it did not need to restrict water consumption during
drought conditions, continued to use water for “watering lawns and ornamental plants.” Id. This
caused the Green River to all but dry up, resulting in the death of oval pigtoe mussels
downstream, a federally listed endangered species. R. at 9.
The Green River Diversion Dam and the Howard Runnet Dam (known collectively as the
Howard Runnet Dam Works) were built in 1947, creating the Bypass Reach. R. at 5. Greenlawn
owns the riverfront on both sides of the Bypass Reach as a riparian landowner and has an
agreement with ACOE to maintain water flow into Bypass Reach. R. at 5–6, 8. The Howard
Runnet Dam Works was authorized by Congress for flood control, hydroelectric power,
recreation purposes, and fish and wildlife purposes. R. at 6. The dams are governed by the
Water Control Manuel (“WCM”), which provides for target lake elevations, and downstream
water release curtailment in times of drought. When lake elevation goals are not met, the WCM
mandates specific curtailments of water flow depending on lake level zones. R. at 7.
The three zones are Zone 1 (Drought Watch), Zone 2 (Drought Warning), and Zone 3
(Drought Emergency). R. at 7. Since 1968, water use was only restricted once in 1998 under
Zone 1, and then five more times between 2006 and 2017. R. at 8. In 2017, the lake levels
reached Zone 2 restrictions. Id. Greenlawn protested the Zone 2 Drought Warning that
restricted water flow into Bypass Reach. Id. ACOE acquiesced to Greenlawn’s hectoring and
ordered the water releases into Bypass Reach to be increased, which, in turn, caused the lake
levels to drop into Zone 3 Drought Emergency conditions. Id. The Drought Emergency
restrictions require all recreational releases to be curtailed, a constrained flow of 7 cubic feet per
second (“CFS”) to be maintained into the Bypass Reach from the Diversion Dam, and daily
hydroelectric power releases to be curtailed. R. at 7.
3
In accordance with the WCM, when lake levels reached Zone 3, ACOE curtailed the
dam’s hydroelectric power releases but continued releasing water to Bypass Reach at 30 CFS.
R. at 8–9. Greenlawn simultaneously continued its water withdrawal such that it consumed
nearly all the flow from the Bypass Reach, creating stagnant pools and narrow trickles
downstream. R. at 9. These conditions decimated the endangered oval pigtoe mussel population
and contributed to harm of the oyster population further downstream. Id.
The oval pigtoe mussel is listed as endangered under the Endangered Species Act
(“ESA”). Id. The mussels inhabit the waters downstream of the Bypass Reach. Id. They
require a habitat of gravel or silty sand riverbeds with slow to moderate currents, and rely on the
sailfin shiner as a host fish species for larval mussels to mature. Id.
When the mussels’ habitat is damaged, the mussel population is in danger of complete
elimination. Id. Only mature mussels can adapt to minor changes in their habitat, and no mussel
can adapt to major changes in its environment. R. at 9. Stagnant water increases siltation,
smothering the mussels, while low water levels prevent sailfin shiners from migrating. Id. The
reduction of the Green River to stagnant pools of water and narrow trickles killed approximately
25% of its oval pigtoe mussel population. Id. ACOE never consulted with the Fish and Wildlife
Service regarding increasing the flow into the Bypass Reach, and Greenlawn does not have an
incidental take permit under section 10 of the ESA. R. at 9–10.
Reduced flows from the river damages the Green River estuary ecosystem and
compromises the survival of oysters inhabiting Green Bay. R. at 10. New Union oystercatchers
suffered reduced catches as a result of reduced water flow into Green Bay. Id. Because droughts
are likely to recur due to climate change, Greenlawn’s frivolous water consumption threatens the
existence of the Green River oval pigtoe mussel population, and the livelihoods of New Union
oystercatchers. R. at 11.
4
Procedural History
Appellant New Union Oystercatchers (“NUO”) is a not-for-profit association whose
membership includes third- and fourth-generation oystercatchers. R. at 10. On July 17, 2017,
NUO asserted ESA and riparian rights claims against ACOE and Greenlawn for the continued
water withdrawals during the 2017 drought. Id. ACOE joined NUO in its ESA claims against
Greenlawn. R. at 4. The United States District Court for New Union properly declared
Greenlawn’s violation of section 9 of the ESA and enjoined its water withdrawal, finding its
activities threatened the existence of the endangered oval pigtoe mussel. R. at 5. The court
granted summary judgment for ACOE, finding no violation of section 7 of the ESA. R. at 1, 11.
Greenlawn moved for summary judgment to declare its rights under the riparian common law,
and the court granted its motion. R. at 4, 10. NUO has timely filed a Notice of Appeal as to the
District Court’s Opinion and Order dated May 15, 2019. R. at 1.
SUMMARY OF THE ARGUMENT
Greenlawn’s continued water withdrawals during drought conditions disserves the public
interest in enjoyment of the Green River, jeopardizing the survival of the endangered oval pigtoe
mussel, and significantly contributing to the downturn of New Union’s longstanding oyster
industry. The outdated common law theory of riparianism is insufficient to reconcile the many
interests of water users in the face of increasing water scarcity. Accordingly, this court should
develop the common law to comport with the principles of a regulated riparian system. In
jurisdictions that have adopted regulated riparianism, agencies decide what is reasonable to
ensure the conservation of water resources. Regulated riparianism statutes generally restrict non-
essential water use during times of drought. Greenlawn’s water withdrawals for lawn watering
during drought conditions are inconsistent with those modern statutes, and are therefore
unreasonable.
5
Not only was Greenlawn’s use unreasonable under the principles of regulated
riparianism, it was also unreasonable under the traditional common law. Greenlawn’s water use
interfered with traditional public rights such as the rights to navigation, fishing, and recreation.
The public also has a strong interest in protecting endangered species. Under the Restatement
approach to reasonable use theory, Greenlawn’s use as assessed by weighing the beneficial use
against the harms is unreasonable because its use for ornamental plant watering and car washing
does not outweigh the detrimental impacts on the Green River, resulting in the deaths of an
endangered species and the ability of the New Union oystercatchers to make a livelihood.
ACOE’s decision to supply Greenlawn with increased water flow during drought
conditions constitutes a discretionary action under section 7 of the ESA. Although the WCM
controls the dam’s operation according to Congress’ authorization, it is not a congressional
mandate and the narrow non-discretionary exception to section 7 of the ESA does not apply.
Pursuant to the congressional authorizations to operate the dam, ACOE was required to balance
those authorizations, including for fish and wildlife purposes. Instead, ACOE prioritized
Greenlawn’s demand for increased water flow contrary to the WCM drought mandates, and in
this way exercised its discretion. Therefore, ACOE’s agency action was subject to section 7’s
consultation requirement.
Greenlawn’s withdrawal of nearly all the increased water flow effectively destroyed the
oval pigtoe mussels’ critical habitat downstream of the Bypass Reach and is a “take” under
section 9 of the ESA. A “take” includes any harm, even indirect, that negatively impacts the
survival of an endangered species in its habitat. The action that leads to the harm must be
foreseeable. In view of the circumstances and conditions, the eradication of the oval pigtoe
mussel was a reasonably foreseeable and probable consequence of Greenlawn’s withdrawal of
nearly all the river’s flow.
6
The oval pigtoe mussel’s survival was severely at risk due to Greenlawn’s actions.
Because courts may not balance the equities when an endangered species’ survival is at stake, the
ESA requires that courts enjoin any conduct that threatens the continued existence of an
endangered species. The language of the ESA in view of the statutory scheme, congressional
intent, and legislative history, provides no other alternative to effect the ESA’s purpose but to
enjoin Greenlawn’s continued water withdrawals.
ARGUMENT I. GREENLAWN DOES NOT HAVE A RIGHT TO CONTINUE WATER
WITHDRAWALS AT ITS EXISTING RATE DURING DROUGHT CONDITIONS. Riparianism is an ancient doctrine with roots in the Roman civil law. See, e.g., Manry v.
Robison, 122 Tex. 213, 230 (1932). The doctrine developed through the English common law at
a time when water resources abounded, and use was limited primarily to the household. 1 Amy
Kelley, Water and Water Rights § 7.01 (3rd ed. 2019). The basis of the doctrine recognized a
common right of use for all riparian landowners. Id.
As society modernized, water use practices shifted drastically towards larger quantities
not only being used but also entirely consumed. Pendergrast v. Aiken, 293 N.C. 201, 213 (1977)
(explaining early riparian law became “outmoded”); Kelley, supra, § 6.01(4). Technological
advances transformed water use from being relatively individualized and non-consumptive to
being characterized by large-scale consumptive use. Kelley, supra, § 6.01(4); RESTATEMENT
(SECOND) OF TORTS, § Scope (AM. LAW INST. 1975). This necessitated further development and
evolution of riparian law to address the availability and maximize the beneficial use of water
resources. Pendergrast, 293 N.C. at 214 (reasoning long-term change in the structure of society
precipitated the development of riparian law); see also Kelley, supra, § 7.01. The majority of
jurisdictions adopted a reasonable use theory of riparian water doctrine, allowing riparian
landowners to use as much water as they needed, so long as they did not harm a fellow riparian
7
landowner. See, e.g., United States v. Willow River Power Co., 324 U.S. 499, 505 (1945); see
generally Tyler v. Wilkinson, 24 F. Cas. 472, 474 (1827).
The present case calls for further development of the common law to account for the
ominous changes in water availability in New Union. Here, Greenlawn, as a riparian
municipality, must reduce its water withdrawal during periods of drought so that the water can be
more equitably distributed in the interests of society as a whole.
A. The Principles of Regulated Riparianism Provide a More Equitable System To Allocate Water Rights in a Changing Climate.
This court should follow the rationale behind regulated riparian systems because climate
change has diminished water resources in New Union. R. at 11. Historically, the Eastern and
Western states of the United States used different systems of water regulation because water was
more abundant on the East coast whereas water was scarce on the West coast. Mattaponi Indian
Tribe v. Commonwealth, 72 Va. Cir. 444, 454 (Cir. Ct. 2007); see Joseph W. Dellapena, Global
Climate Disruption and Water Law Reform, 15 WIDENER L. Rev. 409, 413 (2010). The Eastern
states used a riparian system where landowners abutting a river could use as much water as they
wanted, provided they did not injure a fellow riparian landowner. Stephen Draper, Sharing
Water in Times of Scarcity 54 (AMERICAN SOCIETY OF CIVIL ENGINEERS) (2006). In the West,
states adopted appropriative rights, where the state decided what was the most beneficial use of
the water. Craig Bell & Norman K. Johnson, State Water Laws and Federal Water Uses: The
History of Conflict, the Prospects for Accommodation, 21 ENVTL. L. 1, 4–5 (1991).
Climate change is causing droughts to become more frequent, and water therefore more
scarce. Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 417 (2011); see also Dellapena,
supra, at 410. Due to prolonged droughts, many states have transitioned from a pure riparian to
a regulated riparian system. Kelley, supra, § 9.03; see, e.g., Md. Code Ann., Envir. § 5-501
(2019); Va. Code Ann. § 62.1-242 (2019). In fact, 19 of 31 jurisdictions that follow the riparian
8
system have adopted regulated riparian statutes. Kelley, supra, § 9.03.
Here, although New Union escaped drought conditions for the first 40 years of the
Howard Runnet Dam Works’ operation, drought conditions have occurred with increasing
frequency and severity in the past 20 years. R. at 8. Between 2006 and 2017, New Union
experienced Drought Watch conditions in five of those years. R. at 8. Moreover, in the past two
years, precipitation and temperature fluctuations have triggered the more severe Drought
Warning, which then escalated to a Drought Emergency in 2017. R. at 8.
Conditions in New Union are changing, and drought conditions are becoming
increasingly common. R. at 11. New Union’s water usage should therefore be analyzed in light
of the changing conditions, as regulated riparian jurisdictions do. A regulated riparian approach
will not only be more equitable for all water users, but also will ensure public interest is better
served than it would be under pure riparianism.
In a regulated riparian system, an administrative agency decides who among competing
applicants will receive the right to use water and how they can use that water. City of Waterbury
v. Town of Wash., 260 Conn. 506, 590 (2002). The use of water must be reasonable according to
principles of equity. REGULATED RIPARIAN MODEL WATER CODE § 2R-1-01 (JOSEPH W.
These disasters are against the public interest factored into the balance of reasonableness
in modern riparian statutes. Unless this court develops the common law riparian doctrine to
better account for the reality of modern water patterns and curb non-essential use during drought,
more tragedies will occur in the future.
10
B. Even if This Court Analyzes Greenlawn’s Water Use Under an Insufficient Pure Riparian Theory, Greenlawn’s Non-Essential Use During Drought Conditions Was Unreasonable.
The reasonable use doctrine constrains a riparian landowner’s ability to withdraw water
from a river. Tyler, 24 F. Cas. at 474. When the landowner’s withdrawals cause harm to another
riparian landowner, or to society in general, then those withdrawals are unreasonable and
prohibited. Id.; see also RESTATEMENT (SECOND) OF TORTS, § 850A.
Rivers are generally held in trust by the state for the benefit of the people. PPL Mont.,
LLC v. Montana, 565 U.S. 576, 603 (2012); Public-Trust Doctrine, Black’s Law Dictionary
(11th ed. 2019). There are few public interests more “obvious” or “indisputable” than
maintaining the rivers. Hudson Cty. Water Co. v. McCarter, 209 U.S. 349, 356 (1908). This is
to protect the public’s right in navigation, fishing, and recreation. PPL Mont., LLC, 565 U.S. at
603. Because Greenlawn’s water withdrawals interfered with basic societal interests, its water
use was unreasonable.
1. Public interest precludes Greenlawn from withdrawing water such that it drains the river.
A riparian title is a qualified, bare, technical title. United States v. Chandler-Dunbar
Water Power Co., 229 U.S. 53, 64 (1913). It is “subordinate” to public rights such as the right of
navigation. Id.; see also United States v. River Rouge Improvement Co., 269 U.S. 411, 419
(1926). The rights to navigation, fishing, and recreation are protected by the Public Trust
Doctrine, which states that rivers are preserved for public use. PPL Mont., LLC, 565 U.S. at 603;
Joslin v. Marin Mun. Water Dist., 67 Cal. 2d 132, 140–41 (1967) (reasoning that courts are
charged to conserve the “riches of our streams,” and must not allow the streams to be “dissipated
in the amassing of mere sand and gravel which for aught that appears subserves no public
policy”). Since Greenlawn’s water withdrawals left only a narrow trickle of water, boats such as
11
those of NUO’s members will likely be unable to sail through Bypass Reach to the Green Bay
estuary, as is their public right. The diminished flow debilitated the local oyster industry.
R. at 10. Interference with such a basic right is a strong indication that Greenlawn’s water
withdrawals were unreasonable and should be constrained.
The general public enjoys the right to fish, and harvest shellfish, from navigable waters.
Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 476 (1988); Wash. State Geoduck Harvest
Ass’n v. Dep’t of Nat. Res., 124 Wash. App. 441, 450–451 (2004) (holding the Public Trust
Doctrine protects the public interest in harvesting mollusks); Orion Corp. v. State, 109 Wash. 2d
621, 641 (1987) (holding Orion had no right to impair public interest in public rights of
navigation and fishing through use of its property); Muench v. Pub. Serv. Comm’n, 261 Wis.
492, 515a–515b (1952) (evaluating whether dam construction would reduce water flows such
that public rights to fishing, hunting, and natural scenic beauty of the river would be violated).
Here, Greenlawn’s water withdrawals reduced water flow and turned Green River into
stagnant pools. R. at 9. Sailfin shiner fish could no longer migrate due to the dwindling water
levels. Id. Furthermore, reduced flows contributed to the increasing salinity of Green Bay.
R. at 10. The increased salinity of Green Bay has allowed predators to prey on the oysters
therein. Id. Since the increased salinity continues to lower the numbers of oysters in Green Bay,
the New Union oystercatchers and others’ ability to harvest the oysters has been affected. The
lowering of the Green River water levels to the extent that it affected the public’s ability to fish
violated society’s interest, and therefore contributes to a finding that Greenlawn’s actions were
unreasonable.
Additionally, the public has a deep interest in conserving endangered species. See Tenn.
Valley Auth. v. Hill, 437 U.S. 153, 185 (1978) (“TVA”) (explaining that there is a declared
national policy of preserving endangered species). Endangered species have “aesthetic,
12
ecological, educational, historical, recreational, and scientific value to the Nation and its people.”
16 U.S.C. § 1531 (2018). Moreover, Congress authorized the Howard Runnet Dam Works
specifically for fish and wildlife purposes. R. at 6. This demonstrates that protection of the local
fauna was a primary concern in the Green River. Greenlawn’s water withdrawals during the
drought conditions led to the habitat of the endangered oval pigtoe mussel being destroyed
downstream. R. at 9. The population was ravaged. Id. Such indifference to the welfare of an
endangered species shows disregard for public interest, and weighs in favor of Greenlawn’s
actions being unreasonable.
2. Greenlawn’s use of water was unreasonable under the Restatement 2nd of Torts.
Greenlawn’s continued water withdrawal during the 2017 drought was unreasonable
because the environmental, social, and economic harms overshadow Greenlawn’s non-essential
uses. A riparian landowner must make reasonable use of the water as to not cause harm to
another riparian landowner’s water or land. Tyler, 24 F. Cas. at 474; Hendrick v. Cook, 4 Ga.
241, 253 (1848); RESTATEMENT (SECOND) OF TORTS, §§ 850, 856. A reasonable use satisfies
some “significant or worthwhile human need or desire.” RESTATEMENT (SECOND) OF TORTS,
§ 850A cmt. b. Moreover, the reasonableness inquiry is not assessed in vacuo but rather
considers whether the use is reasonable in light of the circumstances because water conservation
is “paramount.” Joslin, 67 Cal. 2d at 140.
The Restatement assesses the relative harms and benefits of a particular use.
RESTATEMENT (SECOND) OF TORTS, § 850A. The Restatement approach generally evaluates
reasonableness based on (a) the purpose of the use, (b) the suitability of the use to the
watercourse or lake, (c) the economic value of the use, and (d) the social value of the use. Id.
To determine whether the harm done by the riparian landowner negates a reasonable use, the
following five factors are balanced: (e) the extent and amount of the harm it causes, (f) the
13
practicality of avoiding the harm by adjusting the use or method of use by proprietors, (g) the
practicality of adjusting the quantity of water used by each proprietor, (h) the protection of
existing values of water uses, land, investments and enterprises, and (i) the justice of requiring
the user causing harm to bear the loss. RESTATEMENT (SECOND) OF TORTS, § 850A.
Here, although Greenlawn’s usage of water for watering lawns, ornamental plantings, and
washing cars is considered reasonable in normal conditions by courts under factor (a), the uses
were unreasonable given the circumstances. See Pyle v. Gilbert, 245 Ga. 403, 409 (1980)
(irrigation); Harris v. Brooks, 225 Ark. 436, 444 (1955) (domestic purposes). The suitability of
the use, economic values, and social values weigh in favor of Greenlawn’s actions being
unreasonable. Greenlawn’s actions contributed to the increased salinity downstream in the
Green Bay estuary, leading to diminished oyster harvests and, in turn, a loss of livelihood for
oyster harvesters. R. at 10. In addition, recreational uses are recognized as among the more
important uses of water. Lopardo v. Fleming Cos., 97 F.3d 921, 929 (7th Cir. 1996). Here,
because of the low water levels, people could no longer fish or swim in the river. R. at 6.
Greenlawn’s water withdrawal was not reasonable because it adversely affected economic and
social values.
Even if Greenlawn’s usage was reasonable, on balance with the remaining factors,
Greenlawn’s use is negated by the harm caused. Greenlawn’s usage of water led to the entire
ecosystem of the river downstream, the estuary, and bay being dramatically altered. R. at 9–10.
As a result, approximately 25% of the Green River oval pigtoe mussel population died. R. at 9.
Considering the “incalculable” value of species, this harm is indefensible. TVA at 194. When
ACOE recommended that Greenlawn implement practical drought restrictions, such as limiting
car washing, to mitigate these harms, Greenlawn refused. R. at 8. Because this refusal led to a
multitude of harms downstream, Greenlawn should have borne, or at the very least shared, the
14
costs of the drought, through foregoing watered lawns and washed cars. On balance, the benefit
Greenlawn derived from continued water withdrawals for non-essential uses does not justify the
death of 25% of the river’s oval pigtoe mussels and the impact on the New Union oystercatchers.
Therefore, this court should reverse the district court’s decision and find that Greenlawn
does not have the right to continue using water for non-essential uses during droughts.
II. THE ARMY CORPS OF ENGINEERS MUST CONSULT UNDER SECTION 7 OF THE ENDANGERED SPECIES ACT BECAUSE INCREASING WATER FLOW TO GREENLAWN DURING DROUGHT CONDITIONS WAS A DISCRETIONARY ACTION.
ACOE must consult with the U.S. Fish and Wildlife Service when modifying the terms of
the WCM’s drought provision. Section 7 of the Endangered Species Act provides that any action
authorized, funded, or carried out by a federal agency that will jeopardize the existence of an
endangered species must consult with the Secretary. 16 U.S.C. § 1536. The Supreme Court
noted that the language of Section 7 admitted no exception, and “one would be hard pressed to
find a statutory provision whose terms were any plainer.” TVA at 173. This strict language was
a conscious decision by Congress to give endangered species priority over the primary missions
of federal agencies. Id. at 185.
In its regulations, the Department of the Interior gave a specific example of agency action
that included actions directly or indirectly causing modifications to water. 50 C.F.R. § 402.03
(2019). Here, ACOE’s decision to allow more flow to Greenlawn directly modified water levels
of both the Bypass Reach and the dam works. It was therefore an agency action.
A. The Narrow Non-Discretionary Exception Does Not Apply Because ACOE Exercised Its Judgment and Chose To Increase Water Flow into Bypass Reach Contrary to the Terms of the WCM.
In a rulemaking, the Department of the Interior limited the scope of section 7 to actions
where there is “discretionary Federal involvement or control.” 50 C.F.R. § 402.03; see also
Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 672–673 (2007). A
15
discretionary action is an action where the federal agency has a choice or exercises judgment.
See Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). Non-discretionary
actions are marked by mandatory statutory language. Lopez v. Davis, 531 U.S. 230, 241 (2001);
see also Home Builders, 551 U.S. at 662.
Here, ACOE’s action does not fit into the narrow exception recognized in Home Builders.
Furthermore, the WCM mandated specific flows during drought conditions that superseded the
general provision to provide Greenlawn water consistent with its rights as a riparian landowner.
ACOE must also balance the congressional authorizations of the dam.
1. The non-discretionary exception to the consultation requirement is confined to actions specifically mandated by Congress.
Congress was clear regarding the fact that section 7 of the Endangered Species Act
applies to every agency action. TVA at 173. Section 7 is often referred to as the “heart” of the
ESA. Karuk Tribe of Cal. v. United States Forest Serv., 681 F.3d 1006, 1019 (9th Cir. 2012).
Nearly every project that goes through the formal section 7 consultation process results in
modification of the project to protect the species. See Dave Owen, Critical Habitat and the
Challenges of Regulating Small Harms, 64 FLA. L. REV. 141, 168 (2011). To avoid neutering
the ESA, the non-discretionary action limitation must therefore be a very narrow exception. See
TVA at 173.
The Court deferred to the agency regulations as reasonable when section 7 of the ESA
conflicted with another statute such that it would act to repeal it by implication. Home Builders,
551 U.S. at 669. In Home Builders, the Court held that because of the mandatory language of the
term “shall” in the Clean Water Act, the Environmental Protection Agency had no discretion to
deny a permit when certain statutory prerequisites were met. Id. at 663. The Home Builders
Court analyzed TVA, in which congressional funds were earmarked for a dam project. Id. at 670.
The Home Builders Court concluded that its instant holding was consistent with that of TVA,
16
because there was no specific statutory command in TVA for Tennessee Valley Authority to
operate the dam. Home Builders, 551 U.S. at 670. Operation of the dam was therefore a
discretionary action. Id.
Here, like in TVA, Congress approved the dam. R. at 6. Congress authorized the dam for
flood control, hydroelectric power, recreation, and fish and wildlife purposes. Id. However,
congressional authorizations alone are not sufficient to create non-discretionary obligations to
operate the dam. The dam is operated pursuant to the WCM. Id. The WCM was developed by
the ACOE in accordance with Congress’ authorizations, but is not itself a mandatory Act of
Congress like the Clean Water Act. Id. The WCM does not specify requirements to increase
flow to Greenlawn when prerequisites are met. Id. In fact, the WCM requires the opposite – to
decrease flow to Greenlawn when certain lake level conditions are met. Id. Although the WCM
carries out Congress’ intent, the obligations it creates are not specific statutory obligations
mandated by Congress.
Additionally, the WCM general provision contemplates operation of the dam in a manner
that complies with agreements entered into by ACOE. R. at 7. ACOE entered into such an
agreement with Greenlawn. R. at 6. These agreements are also unlike the congressional
statutory mandates of the Clean Water Act. In Home Builders, the Court focused on the fact that
previous statutes could be repealed by requiring consultation for non-discretionary actions.
551 U.S. at 664. Here, consulting with the Fish and Wildlife Service could result in the
agreement with Greenlawn being modified, however that agreement is not a statute, and does not
create binding obligations. Extending the non-discretionary limitation from statutes to agency
agreements would erode the ESA in a manner the Supreme Court deemed impermissible. See
TVA at 173.
17
Modifying the WCM to provide flow to Greenlawn is an ACOE agency action, which
requires consultation with the Fish and Wildlife Service under the section 7 of the ESA. Because
the WCM is not a binding statutory mandate, the implied repeal exception for congressional
statutory mandates does not apply.
2. The specific drought provisions of the WCM supersede the general provision.
The construction of the WCM supports the conclusion that ACOE providing flow to
Greenlawn was discretionary. When two provisions of a text are in conflict, specific provisions
are usually treated as exceptions to a general provision. Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 183 (2012); see, e.g., RadLAX Gateway Hotel,
LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012); see also D. Ginsberg & Sons, Inc. v.
Popkin, 285 U.S. 204, 208 (1932). Here, the WCM’s general provision provides that the dam
works must be operated in harmony with the riparian rights of New Union property owners. R.
at 7. However, that general provision is curtailed by the specific operating provisions detailing
ACOE’s obligations during a drought. Id. Every water control manual must contain a section on
special regulations to be conducted during emergency situations, including droughts. 33 C.F.R.
§ 222.5 (2019). The WCM here has three levels of specific regulations during a drought. R. at
7. These drought obligations restrict how much water ACOE can allow to flow to Greenlawn.
ACOE increased the water flow to Greenlawn in contradiction with the WCM’s specific
directive for a Drought Warning, after Greenlawn argued that the WCM’s 7 CFS flow rate was
outdated. R. at 8. However, 7 CFS was the prescribed flow under the WCM that ACOE had to
follow. R. at 7. Releasing more water to the Bypass Reach required deviation from the
prescribed drought measures. Since ACOE chose to relent to Greenlawn’s demands to increase
the flow despite clear direction in the WCM, ACOE’s action was discretionary and not covered
by the non-discretionary exception to section 7 of the ESA. ACOE should therefore have
18
consulted with the Fish and Wildlife Service before modifying the WCM to increase the water
flow to Greenlawn.
B. ACOE Must Balance the Congressional Authorizations of the Howard Runnet Dam Works.
ACOE must balance congressional authorizations for managing a river. See South
Dakota v. Ubbelohde, 330 F.3d 1014, 1027 (8th Cir. 2003) (determining that ACOE had
discretion under The Flood Control Act to balance congressional authorizations of flood control,
navigation, recreation, and other interests using a Master Manual). Here, the goal of the WCM is
to maintain lake elevations, accounting for the season and historic water demands. R. at 6. The
specific congressional authorizations of the WCM – flood control, hydroelectric power,
recreation, and fish and wildlife purposes – must be satisfied, along with the agreement to
provide water to riparian landowners.
When ACOE prioritized the flow of water into the Bypass Reach, it impaired ACOE’s
ability to satisfy the dam’s congressional authorizations. The lake level reached a Zone 3
Drought Emergency because ACOE chose to relent to Greenlawn’s demands. R. at 8.
Moreover, ACOE was aware that Greenlawn’s use could cause problems, since the District
Commander requested that Greenlawn institute water conservation measures. Id. Nevertheless,
ACOE increased the flow into the Bypass Reach to 30 CFS. Id. ACOE’s decision to provide
Greenlawn with an increased flow of water, despite knowledge of Greenlawn’s intent to
disregard the severe drought conditions, led to ACOE having to curtail hydroelectric power
releases, a congressionally mandated authorization of the Howard Runnet Dam Works. R. at 8–
9. Ultimately, Greenlawn’s use all but dried up the Green River, leading to the death of 25% of
the Green River population of the endangered oval pigtoe mussel. Since ACOE chose to
prioritize Greenlawn’s water supply over the other authorizations of the dam, it used discretion.
Moreover, ACOE’s release of 30 CFS into the Bypass Reach implies discretion. Section
19
7 of the ESA requires consultation when the agency has “some discretion” to take action that
benefits a listed species. Karuk Tribe of Cal., 681 F.3d at 1024. The relevant question is
whether the agency could influence a private activity to benefit a listed species, not whether it
must do so. Turtle Island Restoration Network v. Nat’l Marine Fisheries Serv., 340 F.3d 969,
977 (9th Cir. 2003); see NRDC v. Jewell, 749 F.3d 776, 785 (9th Cir. 2014) (holding Bureau of
Reclamation had discretion to change timing of water flow to benefit the endangered smelt).
Here, the 30 CFS flow rate was arbitrary. It is not mentioned anywhere in the WCM – in normal
summer conditions ACOE provides 50 CFS, and in Zone 2 or 3 of drought conditions ACOE
must provide 7 CFS. R. at 6–7. That the 30 CFS rate is unrelated to these numbers implies that
ACOE made a choice to provide that level of flow. ACOE could have chosen any number
between 7 and 50 CFS. ACOE therefore had some discretion to choose a flow level to benefit
the endangered oval pigtoe mussel. Because the choice to provide Greenlawn with a flow of 30
CFS was a discretionary agency action, ACOE should have consulted with the Fish and Wildlife
Service under section 7 of the ESA.
Therefore, this court should reverse the district court decision and find that operation of
the Howard Runnet Dam Works during drought conditions is a discretionary agency action,
subject to section 7 of the ESA.
III. GREENLAWN VIOLATED THE ENDANGERED SPECIES ACT BECAUSE IT DESTROYED THE MUSSEL’S RIVER HABITAT BY WITHDRAWING NEARLY ALL OF THE WATER UPSTREAM.
The ESA states that “with respect to any endangered species of fish or wildlife . . . it is
unlawful for any person subject to the jurisdiction of the United States to take any such species
within the United States or the territorial sea of the United States.” 16 U.S.C. § 1538. The term
“take” in the ESA is defined to mean “harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532. Congress
20
had made statements that informed courts that “take” was meant to be read broadly. For
example, in a senate report, “take” is defined in “the broadest possible manner to include every
conceivable way in which a person can ‘take’ or attempt to ‘take’ any fish or wildlife.” S. REP.
NO. 307, 93d Cong., 1st Sess. (1973).
A. The Indirect Harm Done to the Mussels Is a Harm and Is Therefore a Taking of the Mussels Under the ESA.
The Department of the Interior’s definition of harm includes indirect harm such as
degradation of habitat that significantly impairs breeding, feeding, or sheltering as a taking.
50 C.F.R. § 17.3. The Supreme Court upheld the interpretation as reasonable. Babbitt v. Sweet
Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 708 (1995). In Sweet Home, plaintiffs
challenged the regulation as impermissibly extending the ESA’s definition of take. Id. at 693. In
that case, logging was degrading the Northern Spotted Owl’s habitat. Id. at 696. The Court
reasoned that the ordinary understanding of “harm” is not limited to direct harm, because the
broad purpose of the ESA is to protect species, and that the inclusion of incidental take permits
in the ESA strongly suggested that Congress intended section 9 to prohibit indirect, as well as
direct takings. Id. at 697–98.
Greenlawn concedes that a taking includes direct physical habitat destruction. R. at 16;
see Envtl. Prot. Info. Ctr. v. Simpson Timber Co., 255 F.3d 1073, 1076 (9th Cir. 2001); Forest
Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 788 (9th Cir. 1995); Marbled
Murrelet v. Pac. Lumber Co., 880 F. Supp. 1343, 1367 (N.D. Cal. 1995).
However, direct physical habitat destruction is only one subset of takings that can occur
to endangered species. Sweet Home, 515 U.S. at 708. In Sweet Home¸ logging destroyed the
habitat of the endangered Northern Spotted Owl. Here, similar to Sweet Home, Greenlawn’s
actions effectively destroyed an endangered species’ habitat. Greenlawn’s water withdrawals
turned Green River from a “flowing river habitat with stretches of sand and bedded gravel” to
21
“stagnant pools of water and narrow trickles.” R. at 9. The resulting siltation smothered the oval
pigtoe mussel population, and the low water level impaired mussel spawning and maturation by
impeding the migration of their host fish species, the sailfin shiner. Id. These conditions killed a
quarter of the Green River oval pigtoe population. Id. Thus, the change in the river’s water
levels is a “significant habitat modification or degradation where it actually kills or harms
wildlife.” See 50 C.F.R. § 17.3. It is therefore a taking.
After Sweet Home, the circuit courts have followed the Supreme Court’s interpretation of
“take” to include indirect harms, including those caused by inadequate regulatory activities. See
Animal Welfare Inst. v. Martin, 623 F.3d 19, 24 (1st Cir. 2010) (holding that regulation
decreasing foothold trap size was a taking because lynx would still be caught); Loggerhead
Turtle v. Cty. Council of Volusia Cty., 148 F.3d 1231, 1246 (11th Cir. 1998) (holding that the
beach driving during the turtles’ nesting season was a “take” permitted by an incidental take
permit, and that the county’s refusal to regulate artificial beachfront lights was a “take” under the
ESA.); Strahan v. Coxe, 127 F.3d 155, 164 (1st Cir. 1997) (holding that the state was indirectly
harming an endangered whale by licensing fishing gear that had caught and killed North Right
whales); Ramsey v. Kantor, 96 F.3d 434, 438–39 (9th Cir. 1996) (holding that chinook salmon
river fishing, which caught and killed both the endangered chinook salmon and hatchery chinook
salmon, indiscriminately would violate the “take” provision of the ESA without an incidental
take permit).
Here, Greenlawn’s failure to implement sufficient water conservation measures was
similar to regulations that failed or were insufficient to protect endangered species from harm, as
in Animal Welfare, Loggerhead Turtle, and Strahan, Greenlawn’s regulation of water withdrawal
was not merely insufficient but rather entirely absent. R. at 8. Had Greenlawn implemented
conservation measures, Green River flows could have been maintained at levels adequate to
22
protect the mussels. Thus, its refusal to implement any water conservation measures was the
type of insufficient regulation that harms endangered species. R. at 8.
B. Greenlawn’s Actions Are the Proximate Cause of the Habitat Modification Harming the Mussels.
Actions that would foreseeably lead to the harm of species are the proximate cause of such
harm. Sweet Home, 515 U.S. at 700. Congress intended for the standard to be foreseeable,
rather than merely accidental. Id. Foreseeability pertains to the quality of being reasonably
anticipatable. Foreseeability, Black’s Law Dictionary (11th ed. 2019). This “eliminates the
bizarre” from the threat of litigation. Jerome B. Grubart v. Great Lakes Dredge & Dock Co.,
513 U.S. 527, 536 (1995).
The standard for proximate cause is whether the “natural and probable consequences” of
the wrongful action should have been foreseen in light of the surrounding circumstances.
Milwaukee & S. P. R. Co. v. Kellogg, 94 U.S. 469, 475 (1876). Chains of causation are plausible
even if there are several “links,” so long as the links are not “hypothetical or tenuous.” Nat’l
Audubon Soc’y., Inc. v. Davis, 307 F.3d 835, 849 (9th Cir. 2002) (citing Autolog Corp. v. Regan,
731 F.2d 25, 31 (D.C. Cir. 1984). A landowner who drained his pond and killed endangered fish
would satisfy the test by any standard. Sweet Home 515 U.S. at 713 (O’Connor, J., concurring).
In Aransas Project v. Shaw, the court held that there was no taking of an endangered
crane because the result was not reasonably foreseeable. 775 F.3d 641, 660 (5th Cir. 2014). In
that case, the licensing of water withdrawals resulted in reduced freshwater inflows, which in
turn increased the salinity of the bay, which then affected blue crabs and wolfberry plants. Id.
That then led to the cranes having to migrate longer distances to find food, and they became
emaciated from food stress. Id. The court ruled that there was likely but-for causation, but
because every link on the chain depended on modeling and estimate, the result was not
reasonably foreseeable. Aransas Project, 775 F.3d at 660.
23
Here however, Greenlawn’s actions are distinguishable from Aransas. Greenlawn’s
water withdrawals resulted in a dramatic lowering of Green River water levels. R. at 9.
Greenlawn was aware of the need for water conservation during the drought conditions, but
refused to implement any measures. R. at 8. It was foreseeable that continuing to withdraw
water from the Green River at a similar rate as during non-drought conditions would decrease the
water levels downstream. It was foreseeable that consuming all flow coming into the Bypass
Reach for ornamental plant watering would result in little to no water flowing downstream.
Rather than a tenuous, bizarre line of indirect steps and modelling, Greenlawn directly caused the
desiccation of the Green River.
Furthermore, the effects of reducing the Green River flow were foreseeable. It was
foreseeable that the lack of water downstream would seriously alter the river habitat, and it was
foreseeable that by changing the habitat, the species that relied on that habitat would be affected.
What ensued was exactly that. The diminished water levels had a direct effect on the oval pigtoe
mussel habitat. Id. As Justice O’Connor hypothesized, the clearly foreseeable consequence of
draining a water source is that the species living there will be killed. See Sweet Home, 515 U.S.
at 713 (O’Connor, J., concurring). Because the links between Greenlawn’s water withdrawals
and the mussels dying were plausible, and the results foreseeable, Greenlawn is the cause of the
harm done to the endangered oval pigtoe mussels.
Greenlawn may argue that it was but one of a number of riparian landowners
withdrawing water from the river. However, Greenlawn’s demands for “watering lawns and
ornamental plantings” were the reason that the water levels were so low that they became
stagnant pools. R. at 8. Greenlawn was the last actor to withdraw water from the river. R. at 9.
ACOE had provisions in place that would keep water levels sufficient to maintain the river
habitat and the species. R. at 6. Greenlawn went against ACOE’s requests to conserve water,
24
and the result was the river levels went from low to being stagnant and silted. R. at 8. Because
Greenlawn acted in a way that significantly affected the environment, it should have ensured that
there were no endangered species, or once the species was discovered, stopped the action that
was causing the change in habitat.
Moreover, if Greenlawn seriously disputed that it was not the cause of the injury, it could
have raised a standing issue. See generally, Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)
(explaining that standing requires the injury be fairly traceable to the actions of the defendant);
see also Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 867 (9th Cir. 2003) (holding a plaintiff that
shows a probable causal chain has standing). However, no party raised standing at either the trial
court level or on appeal. R. at 2.
Therefore, this court should affirm the district court decision finding that Greenlawn’s
withdrawal of the water from the Bypass Reach constituted a take in violation of section 9 of the
ESA.
IV. COURTS MAY NOT BALANCE THE EQUITIES TO WITHHOLD INJUNCTIVE RELIEF WHEN A VIOLATION OF THE ESA WILL THREATEN THE CONTINUED EXISTENCE OF AN ENDANGERED SPECIES.
Courts must defer to Congress when there is clear intent to remove equitable discretion in
issuing injunctive relief from the court. Weinberger v. Romero-Barcelo, 456 U.S. 305, 313–14
(1982). Ordinarily, injunctive relief is subject to the court’s discretion except when required by
statute. TVA at 193. When the court has no equitable discretion, a plaintiff need not satisfy the
traditional four-factor test for permanent injunctions, which considers (1) irreparability of injury,
(2) adequacy of alternative remedies; (3) the balance of hardships; and (4) the public interest.
Monsanto v. Geertson Seed Farms, 561 U.S. 139, 156 (2010). In cases arising under the ESA,
courts may not balance the equities and must enforce its provisions to preserve endangered
species. TVA at 193.
25
A. TVA Forecloses Courts from Exercising Their Traditional Equitable Discretion when Species Extirpation Is at Stake, Even at the Expense of Enjoining a Beneficial Municipal Activity.
TVA demonstrated Congress’ authority to restrict courts’ equitable discretion by
explicitly preventing courts from balancing the equities in ESA cases. TVA at 193; Sierra Club
v. Marsh, 816 F.2d 1376, 1383–84 (9th Cir. 1987) (holding after TVA, the traditional balancing
test “is not the test for injunction for the Endangered Species Act”). In TVA, the Court held that
the ESA required courts to enjoin the operation of a dam on the Little Tennessee River because
its operation would jeopardize the continued existence of the endangered snail darter, an
otherwise unextraordinary, 3-inch long fish found to inhabit waters downstream of the dam.
TVA at 157. In its decision, the Court acknowledged the significant municipal benefits of the
dam, the expenditure of over $100 million on its construction, and its virtual completion by the
time of the suit. TVA at 171. The Court did not have the authority to make such “fine utilitarian
calculations,” and therefore was obliged to enjoin the dam’s operation to protect the critical
habitat of the snail darter, a federally listed endangered species under the ESA. TVA at 187–88.
It nevertheless required injunction to protect the snail darter’s critical habitat to effect the
underlying policy of preventing the irreparable harm of extinction. TVA at 174, 184.
Because Congress has mandated “institutionalized caution” and “struck the balance in
favor of endangered species,” courts cannot decide otherwise. Animal Welfare, 623 F.3d at 27
(quoting TVA at 193); Sierra Club, 816 F.2d at 1383. In fact, there would be no way to balance
the equities when Congress found that the value of endangered species is “incalculable.” TVA at
194; Sierra Club, 816 F.2d at 1383. When there is no danger of extinction, TVA does not
foreclose a court’s equitable discretion. Animal Welfare, 623 F.3d at 27. However, when
conduct threatens the existence of an endangered species, a court may not balance the equities.
26
Here, the conditions have already killed 25% of the Green River oval pigtoe mussel. R.
at 9. The mussels will be eradicated if these conditions are allowed to persist. Id. Therefore,
this court may not balance the equities.
B. The Language of the ESA in View of the Statutory Scheme and Legislative Intent Prohibits Courts from Exercising Their Equitable Discretion.
Congress enacted the ESA to conserve the habitats of endangered species. 16 U.S.C.
§ 1531. The ESA requires that federal agencies “shall seek to conserve endangered species and
threatened species” and “shall cooperate with State and local agencies to resolve water resource
issues in concert with conservation of endangered species.” Id. The plain language of the ESA
in view of the statutory scheme and legislative history demonstrate legislative intent to limit the
courts’ equitable discretion. TVA at 173.
1. The plain meaning of section 1540(g) in the context of the ESA demonstrates legislative intent to protect endangered species at all costs.
In interpreting a statute, courts must look to its plain language in the context of the entire
statutory scheme to determine Congress’ intent. Util. Air Regulatory Grp. v. EPA, 573 U.S. 302,
321 (2014); Miller v. French, 530 U.S. 327, 336 (2000). Congress enacted the ESA to conserve
the habitats of endangered species, and any person may bring suit to enjoin alleged violations.
16 U.S.C. §§ 1531, 1540(g)(1). Under the ESA, federal agencies must take action to protect
endangered species and their habitats. 16 U.S.C. §§ 1531, 1536, 1538. The ESA’s plain
language places affirmative obligations on federal agencies to effect its provisions, and “the
language admits of no exception.” TVA at 173. Read in the context of the entire statutory
scheme, the citizen suit provision requires courts to issue injunctive relief for violations of the
ESA. 16 U.S.C. §§ 1531, 1540(g)(1).
Through the ESA’s plain language, Congress’ intent to conserve endangered species by
limiting courts’ equitable discretion is clear. TVA at 173; see Friends of Earth v. United States
27
Navy, 841 F.2d 927, 934 (9th Cir. 1988) (holding that like the ESA, the plain language, structure,
and history of the National Defense Authorization Act shows Congress “has already struck a
balance favoring environmental review” and therefore removed courts’ equitable discretion);
Sierra Club, 816 F.2d at 1383. Where the continued existence of an endangered species is
threatened, the ESA unambiguously requires that courts enforce its provisions through injunctive
relief without first balancing the equities.
2. The legislative history of the ESA demonstrates Congress’ intent to specifically limit courts’ discretion.
Legislative history and evolution of the statutory language, particularly exclusion of
originally proposed language from the statute as finally enacted, demonstrates clear legislative
intent and confirms the “message conveyed by the plain language of the Act.” INS v. Cardoza-
Fonseca, 480 U.S. 421, 432 (1987); Russello v. United States, 464 U.S. 16, 19 (1983); Carey v.
Donohue, 240 U.S. 430, 436 (1916). Courts generally should not interpret a statute to remove
courts’ discretion to balance equities unless Congress demonstrates such intent through the
statutory language or by “a necessary and inescapable inference.” Miller, 530 U.S. at 336;
Weinberger, 456 U.S. 313; see also United States v. Mass. Water Res. Auth., 256 F.3d 36, 48 (1st
Cir. 2001) (holding that a statute’s “remedial framework” and underlying policy inform the
limitations on a court’s equitable authority).
Here, the statutory scheme and legislative history show that Congress intended to deny
courts their equitable discretion to ensure the effectuation of the ESA’s purpose and underlying
public interest policies. TVA at 173; H.R. REP. NO. 93-412, pp. 4–5 (1973). The TVA Court
pointed to “overwhelming evidence of congressional intent” to limit court authority to withhold
injunctive relief. Mass. Water Res. Auth., 256 F.3d at 54. Records of the 1973 congressional
hearings establish that the ESA’s purpose was to protect endangered species at all costs. TVA at
173.
28
Throughout revision of the originally proposed bill, Congress considered but rejected
language that would have allowed an agency to balance the preservation of species against an
agency’s primary mission. Sierra Club, 816 F.2d at 1383–84. The predecessors to the ESA
contained language such as “insofar as practicable,” which reasonably could be interpreted to
maintain courts’ discretionary authority. TVA at 173. However, as enacted, the ESA contained
no such language and in fact commanded agencies “to use all methods and procedures” to ensure
the protection of species and their habitats. Id. Taken together, the legislative history and
evolution of the ESA’s language as enacted provide not only “inescapable inferences” but rather
unambiguous expression of Congress’ intent to remove courts’ equitable discretion.
C. Injunctive Relief Is the Only Remedy by Which Courts Can Fulfill Their Judicial Role To Enforce the ESA’s Explicit Mandates and Effect Its Purpose To Protect Endangered Species.
When Congress has legislated its priorities, the courts must enforce the laws accordingly.
Owner-Operator Indep. Drivers Ass’n v. Swift Transp. Co., 367 F.3d 1108, 1112 (9th Cir. 2004)
(citing TVA at 194). The TVA Court concluded that the ESA’s clear congressional mandate
provided no option but to enjoin completion of the dam. United States v. Oakland Cannabis
Buyers’ Coop., 532 U.S. 483, 496–97 (2001). It was a choice between sacrificing either the snail
darter or the completion of the Tellico Dam. Weinberger, 456 U.S. at 332–33 (Stevens, J.,
dissenting, agreeing with majority’s interpretation of TVA); United States v. Painesville, 644
F.2d 1186, 1193–94 (6th Cir. 1981). The federal judiciary does not have the power to second-
guess congressional priorities. Owner-Operator, 367 F.3d at 1112 (citing TVA at 194).
The ESA’s explicit mandate – “a flat ban on the destruction of critical habitats” –
provides no feasible means to balance the equities when Congress has declared the preservation
of endangered species to be “incalculable.” Weinberger, 456 U.S. at 314; TVA at 187–88.
29
Where a particular activity would eradicate an entire species if not enjoined, injunction is the
only remedy. Strahan, 127 F.3d at 171.
Moreover, the Court in TVA was required to enjoin completion because “only an
injunction could vindicate the objectives of the Act.” Weinberger, 456 U.S. at 313–14 (quoting
TVA at 173) (holding that unlike the ESA, denying injunctive relief under the Federal Water
Pollution Control would not “undercut [its] purpose and function”); see also Friends of Earth v.
United States Navy, 841 F.2d 927 (9th Cir. 1988) (holding the permanent injunctive relief was
the only means to achieve the purpose of the National Defense Authorization Act). Thus,
injunctive relief is the only remedy by which courts can enforce the explicit provisions of the
ESA and effect its purpose to ensure the protection of species and their habitats.
Therefore, this court should not balance the equities when an endangered species is at
risk of extirpation, and should affirm the district court’s decision to enjoin Greenlawn’s water
withdrawals.
CONCLUSION
NUO respectfully requests that this court develop the outdated common law doctrine of
riparianism to ensure that water resources are equitably distributed in times of drought. This
court should reverse the district court decision and find that Greenlawn does not have the right to
continue using water for non-essential uses during droughts. Additionally, this court should
reverse and find that ACOE’s operation of the Howard Runnet Dam Works during drought
conditions is a discretionary agency action, subject to the consultation requirement of the ESA.
This court should affirm the district court decision finding that Greenlawn’s withdrawal
of the water from the Bypass Reach constituted a take in violation of section 9 of the ESA.
Finally, this court may not balance the equities when the survival of the oval pigtoe mussel is in
30
peril, and should therefore affirm the district court’s decision to enjoin Greenlawn’s non-
