23 F.3d 1508 (9th Cir. 1994), 92-35595, National Wildlife Federation v. Burlington Northern R.R., Inc.

Docket Nº92-35595.
Citation23 F.3d 1508
Party NameNATIONAL WILDLIFE FEDERATION, Great Bear Foundation, Plaintiffs-Appellants, v. BURLINGTON NORTHERN RAILROAD, INC., Defendant-Appellee.
Case DateMay 05, 1994
CourtUnited States Courts of Appeals, United States Court of Appeals (9th Circuit)

Page 1508

23 F.3d 1508 (9th Cir. 1994)

NATIONAL WILDLIFE FEDERATION, Great Bear Foundation,

Plaintiffs-Appellants,

v.

BURLINGTON NORTHERN RAILROAD, INC., Defendant-Appellee.

No. 92-35595.

United States Court of Appeals, Ninth Circuit

May 5, 1994

Argued and Submitted Dec. 13, 1993.

Page 1509

Thomas M. France, National Wildlife Federation, Missoula, MT, for plaintiffs-appellants.

J. Daniel Hoven, Browning, Kaleczyc, Berry & Hoven, Helena, MT, for defendant-appellee.

Appeal from the United States District Court for the District of Montana.

Before: GOODWIN, CANBY, and KOZINSKI, Circuit Judges.

Opinion by Judge GOODWIN.

GOODWIN, Circuit Judge:

The National Wildlife Federation and Great Bear Foundation (collectively referred to as "NWF") appeal the denial of their motion for a preliminary injunction in their action against Burlington Northern Railroad, Inc. ("BN") under the Endangered Species Act's ("ESA") citizen suit provision, 16 U.S.C. Sec. 1540(g)(1).

NWF claims that BN violated the ESA by modifying grizzly bear feeding behavior through a series of accidental corn spills along BN tracks in northwestern Montana. NWF also alleges that BN violated the ESA when BN trains struck and killed seven grizzly bears, allegedly attracted to the food supply at the spill sites.

We agree that the bear fatalities constituted a prohibited "taking" within the meaning of the ESA. 1 We now must decide whether the NWF carried its burden of demonstrating enough likelihood of irreparable future injury to grizzly bears to justify judicial intervention in the form of an injunction. The district court held that NWF did not. We affirm.

Page 1510

I.

In the winter of 1988-89, three Burlington Northern trains carrying grain derailed on a four-mile stretch of track south of Glacier National Park in northwestern Montana. A total of 104 cars derailed and spilled nearly 10,000 tons of corn over an area of steep rocky terrain. The massive corn spill created a new food source for bears, attracting grizzlies to the site to feed. By October 1990, seven grizzly bears in northwestern Montana had fatal encounters with BN trains. At least five of these bears were killed in the immediate vicinity of the corn spills. Two other grizzlies were killed by trains on other sections of BN tracks.

In 1991, NWF filed this suit in federal court, claiming that BN's acts constituted a "taking" of grizzly bears in violation of the ESA. NWF also contended that BN's rail operations, including the corn spills, were "harassing" or "harming" grizzlies and their habitat in violation of the ESA. NWF moved the court to enter an order requiring BN, among other things, to (1) reduce its operating speed around the derailment sites from 25 mph to 15 mph; (2) conduct a feasibility study to determine the possibility of equipping train locomotives with air bags or other bear protective devices; and (3) obtain a permit from the Secretary of Interior authorizing the incidental taking of grizzly bears. 2 NWF did not seek to enjoin BN's rail operations in northwestern Montana.

The district court found that BN had violated the ESA's broad prohibition against "taking" grizzly bears, but held that NWF had failed to establish "the possibility" of irreparable injury as a result of the BN's past violation of the ESA. The court found that although the derailments "did alter, to a certain extent, grizzly bear habitat," the attractiveness of the derailment sites as a food source had been "substantially minimized by subsequent cleanup efforts." Further, the court found that the likelihood of future derailments had decreased since the BN had replaced the affected section of track and provided additional stabilization by installing concrete ties. 3 The district court denied NWF's motion for a preliminary injunction and for summary judgment, finding that the past violations of the ESA did not support prospective equitable relief.

II.

Appellate review of a decision to grant or deny a preliminary injunction is restricted to determining whether the district court abused its discretion or based its decision on an erroneous legal standard or clearly erroneous findings of fact. Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1400 (9th Cir.1992); Sierra Club v. Marsh, 816 F.2d 1376, 1382 (9th Cir.1987). The district court's finding on the likelihood of irreparable harm is reviewed for abuse of discretion. California ex rel. Van de Kamp v. Tahoe Regional Planning Agency, 766 F.2d 1308, 1316 (9th Cir.1985).

  1. Preliminary Injunctions Under the Endangered Species Act

    Under the traditional test, a party is entitled to a preliminary injunction if it demonstrates: (1) a likelihood of success on the merits and a possibility of irreparable injury, or (2) the existence of serious questions on the merits and a balance of hardships tipping in its favor. Fund for Animals, 962 F.2d at 1400. These are not two independent tests, but the extremes of the continuum of equitable discretion. Id.

    This traditional test for preliminary injunctions, however, is not the test for injunctions under the Endangered Species Act. Marsh, 816 F.2d at 1383 (citing Tennessee Valley Auth. v. Hill, 437 U.S. 153, 174, 98 S.Ct. 2279, 2291, 57 L.Ed.2d 117 (1978));

    Page 1511

    Friends of the Earth v. United States Navy, 841 F.2d 927, 933 (9th Cir.1988). In cases involving the ESA, Congress removed from the courts their traditional equitable discretion in injunction proceedings of balancing the parties' competing interests. Friends of the Earth, 841 F.2d at 933 (quoting Marsh, 816 F.2d at 1383). The "language, history, and structure" of the ESA demonstrates Congress' determination that the balance of hardships and the public interest tips heavily in favor of protected species. TVA, 437 U.S. at 174, 98 S.Ct. at 2292; Friends of the Earth, 841 F.2d at 933; Marsh, 816 F.2d at 1383.

    Nevertheless, these cases do not stand for the proposition that courts no longer must look at the likelihood of future harm before deciding whether to grant an injunction under the ESA. Federal courts are not obligated to grant an injunction for every violation of the law. TVA, 437 U.S. at 193, 98 S.Ct. at 2301. The plaintiff must make a showing that a violation of the ESA is at least likely in the future. Cf. Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 545, 107 S.Ct. 1396, 1404, 94 L.Ed.2d 542 (1987) (in NEPA case, if injury to the environment "is sufficiently likely, [ ] the balance of harms will usually favor the issuance of an injunction") (emphasis added). 4

  2. Likelihood of Future Harm

    NWF alleges that BN will continue to take grizzly bears in violation of the ESA. To prevail, NWF must prove that there is a reasonable likelihood of future violations of the ESA; namely, of future harm to the grizzlies of northwestern Montana from grain spills. The district court found that NWF had failed to show such a likelihood. That finding is supported by the evidence.

    It is undisputed that the operation of a modern railroad in bear country produces some risk to the dwindling population of grizzly bears in the region through which the railroad operates. It is also undisputed that the corn spill near BN's tracks heightened that risk. However, following completion of a major cleanup effort by BN, no bears have been hit by trains in the area of the corn spills in more than three years. 5

    Moreover, independent experts testified that the spills had not caused a significant impact on the grizzly bear habitat in the Northern Continental Divide Grizzly Bear Ecosystem (NCDGBE). 6 Keith Aune, a grizzly bear expert with the Montana Department of Fish, Wildlife, and Parks, said the impacts of the corn spill were of a "localized nature" and "cannot be characterized as significant." Aune also testified that grizzly bears have not been habituated over a long period of time to the corn spill area, reducing the likelihood that grizzly bears would continue to frequent the area once the food source was removed. 7

    Appellants argue that the district court failed to recognize the strong presumption of irreparable injury that exists in cases involving the ESA. Citing Tennessee Valley Authority, they contend that once a taking is

    Page 1512

    found, as here, the court must issue an injunction. The appellants expect more from the TVA case than...

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