American Rivers v. U.S. Army Corps of Engineers

Citation271 F.Supp.2d 230
Decision Date12 July 2003
Docket NumberNo. CIV. 03-241(GK).,CIV. 03-241(GK).
PartiesAMERICAN RIVERS, et al., Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.
CourtU.S. District Court — District of Columbia

Donald G. Blankenau, Thomas R. Wilmoth, Fennemore Craig, P.C., Lincoln, NE, David D. Cookson, Attorney General's Office, Lincoln, NE, Jodi M. Fenner, Neb. Sept. of Justice, Lincoln, NE, for State of Nebraska.

Timothy D. Searchinger, Environment Defense, Washington, DC, for Environmental Defense.

Fred Russell Disheroon, U.S. Department of Justice, Environment and Natural Resource Division, Washington, DC, James A. Maysonett, U.S. Dept. of Justice Environment & Natural Resources Div., Washington, DC, for U.S. Army Corps of Engineers.

Charles M. Carvell, ND Office of Attorney General, Bismarck, ND, for State of North Dakota.

William J. Bryan, James R. Layton, Missouri Attorney General's Office, Jefferson City, MO, for State of Missouri.

Sam Kalen, Van Ness Feldman, P.C., Washinton, DC, for Missouri River Energy Services.

Joseph Michael Klise, Kirsten L. Nathanson, Crowell & Moring, LLP, Washington, DC, for Nebraska Public Power Dist.

MEMORANDUM OPINION

KESSLER, District Judge.

Plaintiffs, a number of national and local environmental organizations,1 brought suit against the United States Army Corps of Engineers ("Corps"), the Secretary of the Army, the United States Fish and Wildlife Service ("FWS"), and the Secretary of the Interior (collectively, "Defendants" or "Federal Defendants"),2 seeking to protect the endangered least tern, the endangered pallid sturgeon, and the threatened Great Plains piping plover, all of which are protected by the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531, et seq. Plaintiffs allege that the manner in which the Corps has operated the extensive dam and reservoir system on the Missouri River and the manner in which the FWS has carried out its statutory responsibilities under the ESA have adversely impacted the three species in question. Plaintiffs assert claims against the Corps and the Secretary of the Army under the ESA, the Flood Control Act of 1944 ("FCA"), 33 U.S.C. §§ 701, et seq, and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701, et seq, and assert ESA and APA claims against FWS and the Secretary of the Interior.

This matter is now before the Court on Plaintiffs' Motion for Preliminary Injunction and Defendants' Motions to Strike.3 A motions hearing in this matter was held on July 2, 2003. Upon consideration of the Motions, Oppositions, Replies, amicus curiae and intervenor briefs, the arguments presented at the motions hearing, and the entire record herein, for the reasons discussed below, Plaintiffs' Motion for Preliminary Injunction is granted, and Defendants' Motions to Strike are denied as moot.

I. SUMMARY

This is an immensely difficult case with great ramifications for the Missouri River Basin. Because of its complexity, it is important to clarify and summarize the factual and legal issues presented.

The Missouri River Basin — one of the largest and most bountiful in our country — is home to hundreds of species of birds, fish and insects, as well as the habitat which supports their existence. Three of those species — the least tern, the Great Plains piping plover, and the pallid sturgeon — are in great danger of extinction.

In 2000 the Fish and Wildlife Service issued, pursuant to the Endangered Species Act, a comprehensive Biological Opinion outlining what measures must be taken by the Corps of Engineers in its management of the Missouri River to insure the survival of those three species. These measures are necessary to both protect the three species from further harm and to affirmatively take action to insure their recovery. The Biological Opinion considered time to be of the essence in implementing them. The 2000 Biological Opinion was peer reviewed by government scientists and by an arm of the National Academy of Sciences. It is undisputed that all parties consider it to be the controlling biological opinion.

A central premise on which the 2000 Biological Opinion rests is the need to change the Corps' management of the Missouri River. In particular, the 2000 Biological Opinion calls upon the Corps to institute a water management regimen in which water flows will rise in the spring at least once every three years and decrease every summer. Adoption of this operating principle would: encourage breeding of the least tern and piping plover in the spring; avoid flooding of their nests and habitat, as well as killing of their chicks, in the summer; increase the numbers of prey-fish available for juvenile pallid sturgeon to feed on; and provide a more receptive environment in which juvenile pallid sturgeon would thrive.

In October of 2002, the Corps released a draft Annual Operating Plan for the River presenting two potential flow regimes. Neither plan implemented the spring rise or summer flow regime that the 2000 Biological Opinion found necessary to protect the three species from extinction. When the Corps released its final Annual Operating Plan in January 2003, it contained no provision for a spring rise and low summer flow regime for managing the River. Plaintiffs in this case then filed suit, seeking to force the Corps and FWS to comply with federal law and protect these three endangered and threatened species.

In 2003, the Fish and Wildlife Service did a total about-face, issuing a new Biological Opinion that reversed the position it took in 2000. Looking only at Corps activities in the summer of 2003, FWS concluded that the three species could survive one more summer without the summer low flow that was previously deemed essential to both avoid current harm and advance future recovery. Moreover, FWS stated that its change of position rested on the assumption that the Corps' future management of river flows would be consistent with the recommendations made in the 2000 Biological Opinion.

There is no question that the three species (the least tern, the piping plover, and the pallid sturgeon) will suffer irreparable harm if the Corps is allowed to carry out its 2003 Annual Operating Plan. Two of those species — the least tern and the pallid sturgeon — have been declared "endangered" under the Endangered Species Act and are on the verge of extinction; the piping plover has been declared "threatened," which means that without protection, it will also face extinction. There is no dollar value that can be placed on the extinction of an animal species — the loss is to our planet, our children, and future generations.

Upon analysis of the lengthy legal arguments presented by all parties, the Court finds that there is a substantial likelihood that Plaintiffs will prevail on the merits of their case for the following reasons: FWS has failed to adequately explain or justify its reversal of position from its 2000 Biological Opinion to its 2003 Biological Opinion; FWS' 2003 Supplemental Biological Opinion is premised on a totally baseless assumption — namely that the Corps will adopt a River management plan for 2004 that will be consistent with the 2000 Biological Opinion; and FWS' 2003 Supplemental Biological Opinion improperly segments its analysis and narrowly focuses on harms to the species only during this summer instead of considering all present and future effects on the three imperiled species. Finally, because the 2003 Supplemental Biological Opinion is arbitrary and capricious, it cannot serve to validate the Corps' management plan that will lead to harm of these three species in violation of the Endangered Species Act.

In addition to the irreparable harm to the three protected species and the likelihood that Plaintiffs will ultimately succeed in their case against the Corps and FWS, the Court must also consider and balance the various impacts of granting an injunction. There is no question that other interests will suffer if the preliminary injunction that Plaintiffs request is granted. Commercial and consumer interests in the lower Basin states, such as Nebraska and Missouri, will be affected. Navigation will be interrupted for the remainder of the summer and barge companies will lose revenues. Water quality may be affected and there may well be higher water purification costs. Hydroelectric resources will be affected, and consumers may suffer higher costs. However, despite a similar — but shorter — interruption of high water flows last summer caused by drought, none of the Defendants or Intervenors could provide the Court with reliable figures on the extent or certainty of losses. Significantly, when the Corps previously examined the effects of implementing a management plan with summer low flow, it concluded that it would produce an overall net economic benefit to the entire Missouri River Basin.

Balancing the irreplaceable and unquantifiable loss of three species against the concrete — albeit uncertain — impacts on consumers, businesses, and the economies of several States is a daunting task. However, the loss of species is just that — irreplaceable. The American people, through their representatives in Congress, have spoken in the "plainest of words" making it abundantly clear that the protection and preservation of endangered species is one of the nation's highest priorities. Tennessee Valley Authority v. Hill, 437 U.S. 153, 194, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). For these reasons, as more thoroughly explained in this Memorandum Opinion, the...

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