White v. United States Army Corps of Engineers

Background

Sean K. White sued the United States Army Corps of Engineers and other defendants under the Endangered Species Act. He alleged that flood-control releases from Coyote Valley Dam increase turbidity in the Russian River and injure protected salmonids. The opinion identifies three protected species in the river: Central California Coast steelhead, Central California Coast coho salmon, and California Coast Chinook salmon.

White collected water samples from five locations between January and May 2023 and had them analyzed for turbidity, which measures water clarity. One location, 0.40 miles below the dam, showed elevated turbidity. White’s expert stated that sediment-laden discharges negatively affect listed salmonids and estimated substantial mortality for some salmon eggs at that location. The defendants acknowledged that turbidity from the dam’s outflows had likely caused some adverse effects to habitat and to species individuals and life stages.

The National Marine Fisheries Service had issued an Incidental Take Statement for the Army Corps’ operations. An Incidental Take Statement can provide protection from liability for certain incidental harm to listed species if its terms and conditions are followed. One measure addressed turbidity and required various monitoring, reporting, analysis, and mitigation steps. The defendants admitted that they had not complied with all of those conditions. The statement expired on September 23, 2023.

Motion and requested relief

White sought a mandatory preliminary injunction, meaning an order requiring the defendants to take affirmative action before the case was finally decided. He asked the court to restrict flood-control releases, require reports to the court, require completion of unperformed parts of the turbidity-related conservation measure, and require adjustments and analysis intended to reduce turbidity’s effects on listed salmonids.

Court’s analysis

A preliminary injunction generally requires proof of likely success on the merits, likely irreparable harm without relief, a favorable balance of hardships, and consistency with the public interest. Because White sought a mandatory injunction, the court held that he also had to show that extreme or very serious damage was likely without the injunction.

The court found that White established a likelihood of success on his Endangered Species Act Section 9 claim. Section 9 generally prohibits the unauthorized taking of endangered species. The court reasoned that, because the defendants admitted they had not complied with all conditions of the Incidental Take Statement, they were not eligible for its exemption. The court also found a sufficient connection between the defendants’ conduct and the alleged harm because the defendants admitted that the dam’s releases increased downstream turbidity and likely caused adverse effects.

The court rejected the defendants’ renewed argument that the claims were moot. The National Marine Fisheries Service had not yet determined that it had received a sufficient biological assessment, so the anticipated timetable for issuing a new biological opinion had not begun. The court therefore concluded that the claim was not moot.

The court also found that a flood-control release was likely to occur during the upcoming year. Although releases had occurred only five times in the previous eleven water years and the defendants described the likelihood as low to moderate, the court relied on the changing conditions involved in release decisions and the historical occurrence of releases.

However, the court found that White had not shown the extreme or very serious damage required for a mandatory injunction. White had not established that the turbidity measured at the sampling site was representative of the river as a whole or of salmonid habitat. The sampled stretch had little to no gravel deposition or spawning habitat, and the river’s confluence with the West Fork would dilute turbidity downstream. The court also noted that available population data did not show salmonid declines immediately after prior flood-control-release years, although the court did not treat that evidence as directly correlated with the releases.

The court further held that the proposed injunction was not sufficiently specific or tailored. Directives to “adjust” releases or minimize adverse effects did not tell the defendants how to comply or how much adjustment or minimization was required. The proposed reporting and court-permission requirements also would not change the releases or affect the listed salmonids. Because the proposed relief lacked a sufficient causal connection to the alleged harm and did not provide a workable standard, the court found it improper.

Disposition

Judge Jacquelyn Corley denied White’s motion for a preliminary injunction. The court stated that the denial rested independently on White’s failure to show the required extreme or very serious likely damage and his failure to demonstrate how the proposed injunction would remedy the alleged harm. The order disposed of Docket Number 50.