The United States cannot enforce a regulation that has been promulgated in violation of the APA. Nor can it take enforcement action premised on the absence of a permit, when the decision to deny the permit was made in violation of the APA.
For example, in United States v. Picciotto, 875 F.2d 345 (D.C Cir. 1989), when the United States attempted to prosecute a citizen for demonstrating in a Federal park in violation of rules concerning permitted demonstrations, the Court noted that "the limitations attached to any given permit would be reviewable under the APA's arbitrary and capricious standard. Id. at 314. Because the permitting rule had been promulgated in violation of the APA, the D.C. Circuit reversed appellant's conviction.
In Points IV-VI, infra, the District demonstrates a likelihood of success on the merits in proving that every predicate for enforcement represents agency action that is "arbitrary, capricious, and abuse of discretion or otherwise contrary to law". Thus the United States cannot be said to have demonstrated the probability of success on the merits required to obtain an injunction.
In its Reply in Support of Motion to Expedite Discovery and in Support of Motion for Extension of Time, the District demonstrated that Congress cannot possibly have intended to restrict this Court's equitable discretion. For brevity, we will not reiterate that argument here.
We would add, however, that the recent Supreme Court case of Bennett v. Plenart, 117 S. Ct. 1154 (1997), demonstrates that the Supreme Court now recognizes a vital role for the judiciary in "avoid[ing] needless economic dislocation produced by agency officials zealously but unintelligently pursuing their environmental objectives". That case established, contrary to earlier Ninth Circuit rulings and a misreading of earlier Supreme Court cases, that economic interests are within the zone of interests that may be protected under the ESA, and refutes any notion that this Court is powerless to consider economic hardship that may result from entry of an injunction. Where NMFS has acknowledged discretion to issue a permit because the "taking" will not jeopardize the continued existence of a listed species, and abuses that discretion by refusing, the judiciary surely has power to offer a remedy to citizens injured by the abuse of that discretion without offending the policies of the ESA.
The most immediate effect of the injunction will be to destroy those businesses most dependent upon irrigated water. The Mayor of Grants Pass, Gordon Anderson, advises that "[t]he loss to pear, hay and dairy crops would harm our economy immeasurably" and warns of "catastrophic" losses to those farmers. (Anderson Aff. at 2) One farmer succinctly observes:
"Without water from GPID, we will not be able to grow anything on our farm. It is too dry in June and July to go without irrigation water. I will be put out of business at this farm if an injunction is granted. If I am permanently unable to irrigate this farm, then this land will lose almost all of its value. I cannot use this land for any other purpose other than farming due to zoning restrictions." (Hart Aff. at 2)
Other farmers face the same fate. (Id.) These losses transcend mere economics; the loss of the farms is "the death of our dream" as well. (Geisbrecht Aff. at 2) They have no alternative sources of water. (Crouse Aff. at 2) Getting water in July will be too late for them. (Id.) And it is not just larger farmers who will suffer. There are widows who rely on their gardens to "save money and eat better". (Attachment to Cauble Aff.)
Mr. Anderson also summarizes the probable general effects of the injunction on the Grants Pass ecosystem: ". . . our valley was essentially a high desert area. Th[e] underlying source of moisture to the trees and lawns from GPID is inestimable. It provides the basis for growth of all the foliage in our valley". (Anderson Aff. at 2)
The loss of greenery in and about Grants Pass will greatly affect the quality of life in Grants Pass. "Many of our baseball, soccer, and softball facilities would be seriously damaged or dried up . . ." (Id.) Two local cemeteries will dry up; there is a "risk of major damage to most of the trees"; and the loss of water will mean "the loss of most lawns". (Id.) The local golf course, which "relies totally upon the Grants Pass Irrigation District canal system for its irrigation water", says:
"If we lost water altogether, we would have no greens and with no greens we would have no golf club. We would be out of business. The loss of employment of 40 (+-) people as well as the $700,000 spent annually by the Club would have an economic impact on the community." (Delaney Aff. at 2)
The injunction will also devastate a County Park and nursery dependent on District water. (Borngasser Aff. ¶ 9; Brock Aff. ¶ 9)
Homeowners will suffer large economic losses as well. If the injunction is granted, many wells in and around Grants Pass will go dry and need to be deepened or redrilled at considerable expense to landowners. (Borngasser Aff. ¶ 4; Brock Aff. ¶ 4; Anderson Aff. at 3) In some areas, groundwater may not be available due to poor aquifer conditions. (Id.) Approximately 45% of the groundwater recharge comes from irrigation seepage. (See Becklin Decl. at 12) Grants Pass is located in "one of the poorest counties in the state, [and] increased cost[s] will create a tremendous burden on our poorer families and will lead to a downtrend in our growth and economic stagnation". (Anderson Aff. at 3)
There are also considerable wetlands created by operation of the canals that will dry up and negatively impact the fish and wildlife dependent on such wetlands. (Borngasser Aff. ¶ 8; Brock Aff. ¶ 8; Anderson Aff. at 3) As one elementary school student wrote:
"Our wetland is a home for bullfrogs, muskrats and more. It is also a home for many different species of plants. Without the irrigation water the wetland would dry up and the animals and plants would die. Especially the tadpoles and bullfrogs. I hope you will keep the irrigation water flowing." (Attachment to Cauble Aff.)
Ironically, one of the principal coho-producing tributaries in the Rogue River above Savage Rapids Dam is Evans Creek (Smith Tr. 151), part of which lies within the District's boundaries. When questioned as to whether drying out coho salmon habitat through an injunction made sense, Mr. Smith declared that this was not a "valid concern" because "there is a phenomenon known as post-emergence drift in which they [coho fry] move downstream which is thought to reduce the phenomenon of stranding". (Smith Tr. 150)22
Finally, the property values of those with lakefront property will drop 15-20% or more, as they will now observe "an unattractive, muddy canyon" rather than a lake. (Oran Aff. at 2; see also Attachment to Cauble Aff.) The local motel owners, dependent on the "water skiers, boaters and other recreational users of the lake" will lose business. (Kaywood Aff. at 1) The lake is the only slack water in the area suitable for boating and water-skiing (Kaywood Aff. at 2), leading to a substantial losses in recreational opportunities for local residents and tourists. Hundreds of docks and boat ramps will stand idle. (Attachment to Cauble Aff.)
This Court ought to disregard the extensive historical references to injury to fish unprotected by any Endangered Species listing. As a matter of law, those fish stand on the same footing as the many, many unprotected animals and plants that will die if an injunction is granted. What must be balanced against the enormous losses to the Grants Pass community are the deaths of a tiny fraction of juvenile Rogue River coho this summer.
The District does not maintain that there is zero "take" at the Dam. But the estimates of overall mortality imposed by the Dam that the United States has presented are so exaggerated as to call the credibility of the United States itself into question. If the Dam really killed or injured 33-54% of Rogue River salmon and steelhead (Smith Decl. Table 1), the stench of rotting fish would pervade the vicinity of the Dam. Yet the biologist who has observed Savage Rapids Dam since 1981 has never seen large numbers of dead adult salmon piling up near the Dam. (Budziak Tr. 35-36)
No one has ever conducted any scientific measurement of the effects of Savage Rapids Dam on fish. The bases for asserting the magnitude of adverse effects are pure theory, opinion based on effects at other dams, and anecdotal evidence.23 Just 50 miles upstream from Savage Rapids Dam is Lost Creek Dam, which blocks salmon and steelhead migration entirely (the equivalent of 100% passage mortality). NMFS has determined that this dam is "not likely to adversely affect" SONC coho and required no fish passage measures to be undertaken whatsoever (Response to RFA No. 6), and issued a preliminary conclusion that "this blocked habitat is not currently essential for the recovery of . . . [the] ESU" (62 Fed. Reg. at 62,744).
Finally, the Court should disregard extravagant estimates of the amount of salmon that will be produced if the Dam is removed. As the fishery agencies' desire to remove Savage Rapids Dam has grown, the estimates of additional fish to be obtained through dam removal have grown too. As late as 1990, the figure of 400 more coho "[wa]s carried forward from earlier reports because no studies have been conducted to document or better understand the source of potential losses".24
The Federal government now simply asserts that as many as 100,000 more salmon might appear if the dam were removed. (See, e.g., Morris Decl. ¶ 9) Although the Federal government put forth those numbers in the Declarations, the declarants were not in a position to explain the asserted numbers. (Morris Tr. 22; Smith Tr. 77-78, 82) As set forth below, neither were those responsible for preparing them.
Two types of juvenile coho salmon pass by Savage Rapids Dam: subyearling or age "0+" fish, and yearling, or age "1+" fish. The ODFW biologist studying the Rogue River since 1980 (Satterthwaite Tr. 7) with primary expertise in the life history and factors affecting Rogue River salmon (id. at 16) was unaware of any data on the relative composition of yearlings and subyearling Rogue River coho salmon passing Savage Rapids Dam (id. at 20-21).
Subyearlings ordinarily rear in tributaries of the Rogue River in pools with cooler water. Those that are present in the mainstem Rogue will in all likelihood not survive because water temperatures over the summer become too high. ODFW's expert testified that the survival of such fish would be "very low" unless they found "cold water seeps in the [mainstem] Rogue River". (Satterthwaite Tr. 22; see also id. at 27 (very few of those fish will survive")) He had never seen any such "seeps" and speculated that there might be "very low numbers of them. (Id. at 26). The District's biologist agrees that "[i]t has long been assumed by biologists that these 'losers' of competitive interactions eventually died and were lost from the population." (2d Cramer Decl. Ex. 1, at 5)
The yearling fish are on their way to the estuary and thence to sea. Because they do not remain in the mainstem all summer, most of those that survive Dam passage will reach the sea and thence rear to adult size before returning two years later. For purposes of assessing the Dam's impact to Rogue River coho populations, it is important to focus on losses to yearling salmon.
An unknown fraction of fish pass through the fish passage facilities at the southern end of the dam. Those facilities have been designed to be in compliance with NMFS' fish passage criteria, and NMFS acknowledges that "take may be minimized to an acceptable degree" if the facilities perform as expected. (Morris Tr. 17) It is reasonable to assume that losses at the south facility will be negligible, though some at NMFS maintain unquantified fears that the adult and juvenile fish will interact negatively at the south end. (Smith Tr. 17-22)
Another unknown fraction of fish pass over the top of the dam. The District has installed a stoplog to prevent those fish from dropping down onto a rocky area at the middle of the Dam, so that losses in passing over the Dam are probably negligible as well. (See 2d Cramer Decl. ¶ 40)
The final group of fish encounter the fish passage facilities at the northern end of the Dam. There is little doubt that these facilities impose measurable mortality on migrating Rogue River coho salmon, though such mortality has never been measured. Fish passing through the north facilities encounter traveling screens surrounded by bypass ports. Measurements back in the 1970s suggest that 90% of juvenile chinook salmon go through the bypass ports, and 10% of them were "impinged on the screen". Mr. Meyer based his impingement conclusions in part upon other studies, but did not even know whether the projects in those studies even had bypass ports. (Meyer Tr. 32)
No one knows how many of the fish impinged on the screen die. Mr. Meyer thought that the number was "significant" based on certain "Marmot screens"; 10% of the fish died there. (Meyer Tr. 43-44) NMFS' estimate for Savage Rapids is 100% mortality or injury (Smith Decl. Table 1 n.9) Of course, only a tiny fraction of the fish migrating past the dam are impinged.
Some fraction of juvenile salmon also pass through or around the screens, since the seals around the screens are not perfect, a process known as "entrainment". Many subyearlings may be able to go through the screens; yearlings would have to get through areas with imperfect seals or get through in the event of damage to the screens.25
Once through the screens, juveniles would either be diverted to the irrigation canals, where they would most probably die, or through the turbines, where another unknown fraction of them would die. NMFS assumed that turbine mortality at Savage Rapids (never measured) is 15-20%, relying upon a study with fish almost twice as large as Rogue River coho (smaller fish probably suffer only 10% mortality), and NMFS failed to use available mathematical models to produce a reasoned assessment of turbine mortality. (Meyer Tr. 66-69) These figures are for mortality to yearlings; subyearlings suffer less but are probably doomed anyway.
No one knows how many of the fish that successfully enter the bypass system survive. NMFS complained of two 90 degree bends in the bypass pipe, and the District promptly removed them. Mr. Meyer thinks that the rough inside of the pipe might hurt fish, but admits (1) that there are "turbulence effects in the pipes that tend to center the flow" and (2) no one has ever conducted an experiment to see if juveniles strike the rough edges of pipes any more than they scrape the bottom of a river. (Meyer Tr. 49-50) On cross-examination, he admitted that his assertion of "moderate to high" mortality from passing through the bypass pipe might be as little as 0-2% if the pipe is kept free of debris. (Meyer Tr. 62; see also Smith Tr. 42 (1-3%); but see Smith Tr. 45-47)
No one knows what fraction of migrating salmon in the River as a whole pass through the northern facilities. Having conducted no experiments on this, fishery agencies have traditionally assumed that fish passage is proportional to the total quantity of water, an assumption that has been tested and found to be false at Columbia and Snake River Dams (2d Cramer Decl. ¶ 40). Mr. Smith makes this assumption in his declaration, and assumes that roughly 1/3 of the total run of Rogue River coho passes through the northern facilities. (Smith Tr. 13; Smith Decl. Table 1)
Mr. Smith and Mr. Meyer put together estimates of "take" at the project. After considerable cross-examination, however, Mr. Meyer pointed to Mr. Smith as the witness who could actually explain the Government's calculations. (Meyer Tr. 84-85) Mr. Smith had substantial difficulties attempting to explain how the numbers were generated, and when pressed, pointed to Mr. Meyer. (Smith Tr. 26-27, 35) The District also took the deposition of Mr. Evenson, the co-author of a 1994 ODFW report with fantastic estimates of improvements in adult runs from dam removal (see infra pp. ), and he referred the District elsewhere for an explanation of those numbers. (Evenson Tr. 37-38). The District could not follow the trail of finger pointing to its end in time to get a timely ruling from this Court.
The calculations are grossly erroneous, and not only because the individual components of mortality are exaggerated. Obviously, total mortality to salmon migrating past the project is the sum of mortality through each passage route times the percentage of salmon passing by the route, a point Mr. Smith seemed unable to understand. (Smith Tr. 44-45, 47-52, 56-60, 69-76) Indeed, he refused to acknowledge that any estimate of overall mortality had to contain some implicit estimate of what percentage of fish passed by each route (Smith Tr. 66), calling those percentages an "information gap" (Smith Tr. 65). Mr. Smith apparently filled the gap by assuming that one-third of migrating fish were impinged on screens (which would produce enormous piles of dead fish all season), one-third were entrained (which would mean that there were always huge quantities of juveniles in the canals, not just from system failures), and only one-third were bypassed. When asked why, given that for every one fish that is impinged, nine are bypassed (Smith Tr. 41), Mr. Smith simply added his impingement and bypass mortality figures together (giving them equal weight), he said: "I don't have a good answer for that . . ." (Smith Tr. 76). This sorry performance is regrettably typical of the NMFS' approach to the "best scientific and commercial evidence".
Though the United States in its response to the discovery motion has contended that the magnitude of adult mortality is not relevant to this motion, the papers of the United States are larded with references to adult mortality. It has become apparent on cross-examination that those references are grossly exaggerated.
References to losses from dewatering fish ladders are based on a 1974 report. (Meyer Tr. 86-87)26 But the fish ladders were dewatered this spring under the scrutiny of NMFS' Enforcement Division without any dead Rogue River coho being found. (Budziak Tr. 12-15)
References to problems with changing river flows (but see Meyer Tr. 90-91) and entrance configurations are challenges to the "design" of the fish ladders. (Meyer Tr. 87, 89) NMFS does not even have written design criteria for adult fish ladders (Meyer Tr. 94), making the question of appropriate design arbitrary. Finally, "take" is a verb, and the design of facilities long ago completed does not "take" fish in this context. The District can stop diversions from the River, but cannot stop the Rogue River from flowing over the existing fish ladders. (See Meyer Tr. 100 ("Q: Now, with regard to operation of the ladders, where is the verb? Where is the action? A: I don't know.")
Mr. Meyer could identify no instances in which NMFS had asserted the authority to require anyone anywhere to build new fish ladders, and has never even discussed with anyone whether imposing such a requirement is within the discretionary authority of NMFS. (Meyer Tr. 96, 98)
Complaints about the occasional fish that leap out of the ladders should end based on the fencing that has been installed in recent weeks. (Meyer Tr. 101; cf. Budziak Tr. 37-38 (this was ODFW's solution at Gold Ray Dam) Complaints about adult salmon stopping in "dead ends" or swimming up into the turbines lack any basis in observed fact (Meyer Tr. 102-03, 106); spring operation of the radial gates has no effect on migrating coho adults (see Meyer Tr. 104);
Upon closer examination, nearly all of the supposed mortality is "indirect mortality" that is supposed to result from "delay" at the project. Mr. Evenson frankly acknowledged that "[t]he primary concern with upstream fish passage, that I've become aware of, is primarily delay of fish". (Evenson Tr. 24)
But as NMFS has admitted, "Savage Rapids was probably a natural barrier [to salmon migration]". (Morris Tr. 78) In other litigation, NMFS has asserted that adult passage is easier through reservoirs than rapids;27 Mr. Meyer was unable to offer an explanation of why that wouldn't be the case here (Meyer Tr. 112). No one knows whether the ladders cause more delay than no dam at all. (See Evenson Tr. 24-27) If the United States wanted to actually measure the effectiveness of the ladders, it could do so by means of a radio-tracking study, but it has never bothered to do one. (Meyer Tr. 93; see also Evenson Tr. 27)
Despite the utter absence of supporting data, in 1994 ODFW estimated "low end" adult losses of 10% and "high end" adult losses of 30%. But the co-author of the estimate admitted, at least initially, that the low end could go below 10% (Evenson Tr. 39), and that the "low end" estimates were more likely than the "high end" estimates (Evenson Tr. 48). Indeed, he and other ODFW witnesses could offer no coherent justification of the high end estimates. (Evenson Tr. 39-43) Indeed, by the time the details of the calculation became clear (they had never been questioned before (Evenson Tr. 47-48)), it appeared as if ODFW was asserting that dam removal would produce 40-50% more salmon, a result that even Mr. Evenson acknowledged "seemed unlikely" (Evenson Tr. 46).
* * *
Mr. Cramer has, in connection with the District's formal permit application, put together a competent estimate of mortality arising from project operations. He reports that, making a number of assumptions biased toward greater mortality (2d Cramer Decl. ¶¶ 40-42), that the total mortality to Rogue River coho populations will be approximately 1.3% (id. ¶ 40). This is more than an order of magnitude below the harvest mortality NMFS determined to exempt from any "taking" rule. Mr. Cramer has reviewed Mr. Smith's calculations and "did not find sufficient information to reproduce these calculations, and believe them to overstate substantially the amount of mortality and injury imposed by Savage Rapids Dam". (id. ¶ 43)
The District is making significant progress toward improving fish passage facilities at Savage Rapids Dam. Before this suit was filed, even Mr. Smith admitted that mortality could be brought down to 1-1.5% without removing the Dam, and that mortality that low was statistically undetectable using current scientific methods. (Postlewait Decl. ¶ 5; 2d Cramer Decl. ¶ 23)
22 Mr. Smith was unable to explain how the tiny fry were so much smarter than adults and yearlings imagined to be stranded in the vicinity of the Dam by changing river flows. (Smith Tr. 150-51)
23 The District has not had time to take discovery into each and every anecdote concerning dead fish in the vicinity of the Dam; isolated technical failures, like isolated failures of nature to meet the needs of salmon, have doubtless occurred.
24 USFWS Memo, "Savage Rapids Dam, Grants Pass Division, Rogue River, Oregon", April 27, 1990, at 13.
25 The United States has submitted evidence of injured juveniles appearing below the Dam. It seems likely, though no one can tell, that these particular groups of injured juveniles were the result of a screen failures. NMFS cites other historical examples of take resulting from poor maintenance, but acknowledges that it knows "nothing" about the quality of maintenance the District will provide this summer. (Morris Tr. 17) No one disputes that District's new Board is taking extraordinary and unprecedented efforts to improve operations.
26 Mr. Meyer had no personal knowledge whatsoever of fish passage conditions at the Dam. (Meyer Tr. 90).
27 Declaration of Doug Neeley, filed Feb. 9, 1994, in PNGC v. Brown, No. 93-1603-MA, at 21 ("One study indicated that adult migration through reservoirs is 77% more rapid than through free-flowing rivers").
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