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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.


Follow the truth.

"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.


Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

« Envirornmental groups send 100,000 comments on proposed changes to Section 7 consultation regulations | Main| FWS begins status review on potential listing of the least chub »

Federal Court's preliminary injunction opinion in grazing case leaves the reader wanting MUCH more...

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Oregon Natural Desert Association v. Kimbell et al, Civil No. 07-1871-SU,, 2008 WL 4186913 (D.Or. Sept. 5, 2008)(HAGGERTY, Chief Judge).

When grazing is permitted on federal lands, livestock can trample spawning nests of fish, destroy or dislodge young fish that concentrate in large numbers in small areas, and otherwise harass the fish.  Grazing can also indirectly degrade fish habitat by removing riparian vegetation, destabilizing stream banks, widening stream channels, promoting incised channels, lowering water tables, reducing pool frequency, increasing soil erosion, and altering water quality.  These effects can reduce cover, increase summer water temperatures, promote formation of anchor ice in winter, and increase sedimentation into spawning and rearing habitats.  In sum, grazing certainly can create significant headaches for land managers seeking to comply with the Endangered Species Act.  Photo from Managed Grazing in Riparian Areas, and online resource prepared by the National Sustainable Agriculture Information Service, funded under a grant from the United States Department of Agriculture.

KEITHINKING: So much for my theory that maybe the 9th Circuit's decision in The Lands Council v. McNair (see prior ESA blawg) might reflect a shift in environmental jurisprudence out West.  In this dispute over grazing allotments on Oregon lands and the impacts of the grazing on endangered fish, the  District Court ignored the 9th Circuit decision altogether, emphasizing instead older case law and the potential threats to endangered species.  The opinion was noteworthy for the absence of application of facts to law.  Instead, the opinion states the Plaintiff's theory of the case, cites the fact that evidence was submitted to it (despite the fact that these cases are traditionally administrative record review cases), and then simply agrees with the Plaintiffs, finding that they were likely to prevail and had adequately demonstrated harm.  I offer no opinion on whether Plaintiff's case has merit or not.  And I recognize that this is only the opinion on a preliminary injunction.  However, the Court's analysis certainly could have been more weighty.


The Malheur National Forest is in the Blue Mountains of eastern Oregon. It encompasses the upper John Day River and upper Malheur River watersheds. The habitat of Middle Columbia River (MCR) lies within the boundaries of the Forest. The habitat includes steelhead trout and bull trout--both listed as threatened under the ESA--and inland native redband trout and cutthroat trout. The native trout rely upon the John Day and Malheur river systems and their tributaries for spawning, rearing and migration. The three species require clear and cool streams for spawning, and rely on streambeds low in fine sediment, high in large woody debris, with stable, overhanging banks and large pools...   It is largely undisputed that livestock grazing on the National Forest lands "directly impacts steelhead and bull trout when livestock enter streams to loaf, drink, or cross the stream.

Defendant Forest Service manages livestock grazing on national forests by using three separate decision-making processes: federally issued grazing permits, allotment management plans (AMPs), and annual operating plans (AOPs), now referred to as annual operating instructions (AOIs)...  The National Marine Fisheries Service has jurisdiction over anadromous fish, including steelhead. Under ESA § 7, the Forest Service prepares a Biological Assessment to evaluate potential effects of proposed grazing on steelhead if the species may be present within the action area. 16 U.S.C. § 1536(c)(1); 50 C .F.R. § 402.12(a). If the Biological Assessment identifies that steelhead are "likely to be adversely affected" by the proposed action, the Forest Service conducts formal consultation with NMFS. 50 C.F.R. § 402.14(a). NMFS then produces a BiOp, in which NMFS determines whether the proposed grazing, together with its cumulative effects, is likely to jeopardize the continued existence of a listed species or adversely modify the species's critical habitat. 16 U.S.C. § 1536(b); 50 C.F.R. § 402.14(g)(4).


Plaintiffs contend that the Forest Service and NMFS failed to comply with their obligations under Sections 7 and 9 of the ESA in issuing the 2007- 2011 BiOp for steelhead and authorizing grazing on the Murderers Creek and Lower Middle Fork allotments. Plaintiffs sought to enjoin the Forest Service from authorizing, allowing, carrying out, or continuing any further livestock grazing on the Murderers Creek and Lower Middle Fork allotments until plaintiffs' claims could be heard on the merits and until the agency complies with ESA §§ 7 and 9 and request an order requiring the Forest Service to immediately remove all livestock currently grazing on the Murderers Creek and Lower Middle Fork allotments pending adjudication.


 The traditional basis for injunctive relief in the Ninth Circuit is irreparable injury, generally involving balancing (1) the plaintiff's likelihood of success on the merits, (2) whether the balance of irreparable harm favors plaintiff, and (3) whether the public interest favors issuance of the injunction. Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir.1988). However, by enacting the ESA, Congress altered the normal injunction standards to ensure protection of endangered and threatened species, "making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities." TVA v. Hill, 437 U.S. 153, 194 (1978). Accordingly, courts "may not use equity's scales to strike a different balance." Sierra Club v. Marsh, 816 F.2d 1376, 1383 (9th Cir.1987). As a result, "[t]he traditional preliminary injunction analysis does not apply to injunctions issued pursuant to the ESA." Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 422 F.3d 782, 793 (9th Cir.2005).

 To obtain injunctive relief under the ESA, a plaintiff must show likely success on the merits. Nat'l Wildlife Fed'n v. Burlington N.R.R., Inc., 23 F.3d 1508, 1511 (9th Cir.1994). To establish the likelihood of success on the merits necessary for a preliminary injunction, a plaintiff must demonstrate " 'a fair chance of success.' " Nat'l Wildlife Fed'n, 422 F.3d at 794 (quoting Repub. of the Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir.1988) (en banc )). In addition to a likelihood of success on the merits, a plaintiff seeking injunctive relief must also show "irreparable injury" to the species. Nat'l Wildlife Fed'n, 23 F.3d at 1511.

 Both the NMFS's actions in issuing the 2007-2011 BiOp and the Forest Service's alleged failure to comply with the ESA are reviewed under APA § 706, 5 U.S.C. § 706. Sierra Club, 816 F.2d at 1384-87; Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 981 (9th Cir.1985). Under APA § 706, "the appropriate standard of review for administrative decisions involving the ESA is the 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law' standard. Under this standard, administrative action is upheld if the agency has 'considered the relevant factors and articulated a rational connection between the facts found and the choice made.' " Friends of Endangered Species, 760 F.2d at 981-82 (citing 5 U.S.C. § 706(2)(A).


Plaintiffs first argue that the NMFS acted arbitrarily or capriciously under ESA § 7 and the APA by failing to insure against jeopardy to steelhead or destruction or adverse modification of steelhead critical habitat in issuing the 2007-2011 BiOp. Plaintiffs also contend that the Forest Service violated ESA § 7 by failing in its independent duty to insure against jeopardy to steelhead by failing properly to implement its grazing strategy, and instead allowing grazing on the Murderers Creek Allotment and Lower Middle Fork Allotment in 2007 that violated standards set in the 2007-2011 BiOp. Third, plaintiffs also contend that the Forest Service violated ESA § 9 by allowing grazing on the Murderers Creek Allotment and Lower Middle Fork Allotment in 2007 that exceeded the limit of allowable take set by NMFS in the 2007-2011 BiOp's ITS. Fourth, plaintiffs argue that the Forest Service and NMFS violated the ESA implementing regulations by failing to reinitiate consultation...

Based on the parties' submissions, exhibits, and testimony, this court concluded after the parties' oral argument that plaintiffs are likely to succeed on the merits of at least one of its claims. These allegations, which as summarized above include challenges that the MNF's administration of its grazing program on the Murderers Creek Allotment and the Lower Middle Fork Allotment and the National Marine Fisheries Service's 2007-2011 BiOp violate duties under the ESA.

 Moreover, plaintiffs have made a sufficient showing that irreparable injury would occur due to grazing on the Murderers Creek Allotment and the Lower Middle Fork Allotment during the 2008 grazing season. Plaintiffs have proposed that this court expound upon these conclusions. After careful consideration, this court concludes the scope of such an adjudication would reach beyond the standards and obligations applicable in this action for an injunction and, therefore, would be improper.


 Plaintiffs have demonstrated that they are likely to succeed on the merits of at least one of their claims, and have made the additional showing of irreparable injury to steelhead. Accordingly, plaintiffs' Motion for Temporary Restraining Order and/or Preliminary Injunction [34] is GRANTED AS FOLLOWS: the Forest Service, Dayville Grazing Association, Chet Hettinga, Loren Stout, Piper Stout, and Ron Burnette are prohibited from authorizing, allowing or carrying out livestock grazing, on the Murderers Creek Allotment and Lower Middle Fork Allotment on the MNF, pending the court's decision on the merits of plaintiffs' claims.

 *9 The bond in this public interest litigation is waived. See People ex rel. Van De Kamp v. Tahoe Regional Planning Agency, 766 F.2d 1319, 1325-26 (9th Cir.1985) (court has discretion to dispense with the security requirement where requiring security would effectively deny access to judicial review for a non-profit environmental group).