U.S. Ninth Circuit Court of Appeals Judge Jacqueline Nguyen
SAN FRANCISCO - A federal appeals panel has ruled courts evaluating disputes over the environmental impact of development and environmental regulatory decisions must widen their focus to include all endangered species and not just those central to claims brought by environmental activists or other opponents.
Judge Jacqueline Nguyen wrote the opinion for the U.S. Ninth Circuit Court of Appeals, filed Dec. 3; Judge Danielle Forrest concurred. Judge Lawrence VanDyke wrote a special concurrence.
At issue is Endangered Species Act litigation under which nongovernmental organizations - typically, environmental activist groups - seek injunctions to halt activities they argue could harm certain animal or plant populations.
One such injunction required San Luis Obispo County to take specific steps in managing the Lopez Dam and Reservoir in response to a lawsuit from a coalition of groups, including San Luis Obispo Coastkeeper, Los Padres Forest Watch, California Coastkeeper Alliance and Ecological Rights Foundation.
According to Nguyen, the NGOs alleged “decades of noncompliance with proper permitting processes” and wanted a court to order protection and improvement of steelhead trout habitat in Arroyo Grande Creek.
The county, however, contended taking the steps requested by the NGO activists would negatively impact two other endangered species, the California red-legged frog and the tidewater goby fish.
U.S. District Judge Sherilyn Garnett did not, Nguyen said, “consider competing equities and the public interest as to those other species,” prompting a reversal of her opinion.
The panel said Congress enacted the Endangered Species Act in 1973 and pointed to a 1978 U.S. Supreme Court opinion, Tennessee Valley Authority v. Hill, recognizing the importance of giving an endangered species the highest priority. But a case involving multiple such species, she wrote, “tests the logic of our approach.”
Nguyen recounted the NGOs’ position on the way the dam influences steelhead populations and said the groups sued in order to force the county to comply with a 2004 National Marine Fisheries Service request to substantially revise its first draft of a habitat conservation plan. In arguing against the injunction, the county said changing the dam’s release schedules, which the NGOs requested in order to help steelhead spawning, “would dislodge the tidewater goby or red-legged frog nests or egg masses,” Nguyen wrote.
Although Judge Garnett issued the preliminary injunction, the NFMS and the U.S. Fish and Wildlife Service eventually issued formal declinations of comment on “the various interim measures specified” in her order. Instead, they recommended the county develop a plan that would “avoid, minimize and mitigate potential impacts” to the other species.
Before the Ninth Circuit, the NGOs argued equitable balancing of multiple species isn’t required and further claimed Judge Garnett did consider the impacts on the goby and frog before issuing her order. But the panel disagreed, noting Judge Garnett gave the other species “no meaningful consideration,” adding that “attempting to involve the appropriate federal agencies is not an adequate substitute for the exercise of informed discretion.”
The panel vacated the preliminary injunction, remanded the case and directed Garnett to weigh evidence on all species while allowing she may decide to reinstate some or all prior measures.
In a brief special concurrence, Justice VanDyke sought to “emphasize the demanding standard that must be met before a district court may issue a mandatory preliminary injunction, a standard that becomes even harder to satisfy in cases like this one which involve the complicated interplay between different species.”
Such injunctions are disruptive before either party has definitely proven a case, he continued, and when requested under the Endangered Species Act should only be granted when a judge is confident relief won’t adversely affect other species. In this case, a county expert testified that steelhead are likely to prey on red-legged frog tadpoles and the goby, raising the possibility an injunction “may be a zero-sum game” and further demonstrating the high bar to be cleared in order to justify requested relief.
The plaintiffs are represented by attorneys Christopher Sproul, Bruan Orion and Marla Fox, of San Francisco; and Drevet Hunt, of the California Coastkeeper Alliance, of Sacramento.
The county is represented by attorneys from Nossaman LLP, of Irvine and Seattle.
