Pacific Coast Federation of Fishermen's Associations v. Gutierrez

FINDINGS OF FACT AND CONCLUSIONS OF LAW RE THE EXISTENCE OF IRREPARABLE HARM DURING THE INTERIM PERIOD AND DENYING PLAINTIFFS’ REQUESTS FOR EMERGENCY INTERIM REMEDIES REGARDING FLOWS ON CLEAR CREEK AND GATE OPERATIONS AT RED BLUFF DIVERSION DAM

*1197 TABLE OF CONTENTS

I. INTRODUCTION.........................................................1198

II. CONCLUSIONS OF LAW..................................................1199

A. Jurisdiction .........................................................1199

B. Agencies’ General Obligations Under the ESA ..........................1199

C. ESA § 7(a) Only Applies to Actions that Fall Within a Federal Agency’s Discretion ................................................1200

D. Remand Without Vacatur.............................................1202

E. The Bureau’s 7(d) Obligations During Re-Consultation .................1203

F. Standard for Issuance of Preliminary Injunctive Relief In ESA Cases.... 1203

(1) Likelihood of Success on the Merits ................................1205

(2) “Reasonable Likelihood” of Irreparable Harm.......................1206

(a) Injunctive Relief is Not Automatic.............................1206

(b) Likely Extirpation Is Not the Standard.........................1207

(c) Reduce Appreciably the Likelihood of Survival or Recovery I Appreciably Diminish the Value of Critical Habitat....................................................1207

(3) Burden Shifting..................................................1210

(4) Should Evaluation of “Significance” Occur at the ESU or Population Level?..............................................1211

(5) The Impacts of Project Operations Must be Evaluated in the Context of Baseline Conditions ..................................1212

(6) Consideration of Recovery.........................................1213

(7) Economic Harm May Not Be Considered, But Public Safety is Relevant and Injunctive Relief Must Be Narrowly Tailored----1213

(8) Judicial Non-intervention.........................................1214

(9) FERC Jurisdiction: Feather River and Oroville Dam................1215

III. FINDINGS OF FACT.....................................................1215

A. Overview of Salmonid Life History.....................................1215

(1) Winter-Run Biology, Location and Movement.......................1216

(2) Spring-Run Biology, Location and Movement.......................1217

(3) Central Valley Steelhead Biology, Location and Movement...........1217

B. Current Status of the Species..........................................1218

(1) Overview ........................................................1218

(2) Winter-Run......................................................1219

(3) Spring-Run......................................................1221

(4) Steelhead........................................................1223

C. Impacts ftom Non-Project Related (Baseline) Conditions................1224

D. Project-Related Impacts..............................................1225

(1) Overview of Project Operations....................................1225

(2) Shasta Reservoir!Sacramento River Operations .....................1227

(a) Operations...................................................1227

(b) Winter-Run..................................................1229

(c) Spring-Run..................................................1230

(d) Steelhead....................................................1230

(e) Worst Case Scenario..........................................1230

(3) Impacts of Red Bluff Diversion Dam Operations.....................1231

(a) Impacts to Up-Migrating Adults During Entire Closure Season (Currently May 15 through Sept. 15)...................1232

(i) Overview of Impacts to Adult Salmonids During Entire Closure Season........................................1232

(ii) Impacts of RBDD to Spring-Run Adult Migration During Entire Closure Season..........................1233

(iii) Impacts of RBDD to Winter-Run Adult Migration During Entire Closure Season..........................1234

*1198 (iv) Impacts of RBDD to Steelhead Adult Migration During Entire Closure /Season.................................1234

(b) Emergency Request To Raise Gates Through July 15 ............1234 (c) Impacts to Juvenile Migration During Entire RBDD Closure

Season & Plaintiffs’ Request to Open RBDD August 1, 2008____1236

(4) Predicted Impacts of Operations at Clear Creek.....................1238

(5) Feather River and Thermalito/Lake Oroville Complex ...............1240

(6) Folsom Dam/American River......................................1241

(7) New Melones Reservoir/Stanislaus River...........................1242

(8) CVP/SWP Export Operations......................................1243

(a) Sources of Juvenile Mortality..................................1243

(i) Direct Mortality ........................................1243

(ii) Indirect Mortality.......................................1244

(b) Protective Measures..........................................1246

(i) Incidental Take Limits..................................1246

(ii) Delta Cross Channel Operations..........................1248

(iii) Salmon Decision Tree ...................................1248

(c) Summary of Delta Impacts ..:.................................1249

E. Analysis of Overall Irreparable Harm/Jeopardy During Interim Period ............................................................1249

(1) Critical Habitat Analysis .........................................1249

(2) Will Interim Project Operations Appreciably or Considerably Diminish the Species Chances of Survival and Recovery?..........1250

(a) Conclusions Re: Winter-Run..................................1250

(b) Conclusions Re: Spring-Run..................................1251

(c) Conclusions Re: Steelhead....................................1252

IY. CONCLUSION ...........................................................1253

I. INTRODUCTION

A memorandum decision and order, issued April 16, 2008 as amended May 20, 2008, granted in part and denied in part Plaintiffs’ Endangered Species Act (“ESA”) challenges to the 2004 biological opinion (“BiOp”) issued by the National Marine Fisheries Service (“NMFS”) on the effects of coordinated operation of two of California’s largest water projects, the federal Central Valley Project (“CVP”) and the State Water Project (“SWP”), on the endangered Sacramento River winter-run Chinook salmon, the threatened Central Valley spring-run Chinook salmon, and the threatened Central Valley steelhead. (See Doc. 256, 606 F.Supp.2d 1122, 2008 WL 2223070 (E.D.Cal.2008).)

Plaintiffs move for injunctive relief. The parties submitted briefs and evidence on whether the species’ would be placed in jeopardy or their critical habitat threatened with adverse modification or destruction until such time as the new BiOP is released. (See Doc. 233, filed Apr. 29, 2008.) While the proceedings were in progress, Plaintiffs moved for emergency injunctive relief, suggesting the immediate implementation of a number of interim remedies was necessary to prevent jeopardy. Plaintiffs identified four remedies for immediate implementation, and seven additional remedies for implementation pending the March 2009 completion of the new BiOp. (Doc. 280, filed May 27, 2008.) An evidentiary hearing commenced June 6, 2008 and concluded July 3, 2008. The hearing focused on the status of the species, whether Project operations would result in jeopardy before the new BiOp is issued, and on the four “immediate” remedies.

On June 20, 2008, after eight full days of testimony, Plaintiffs requested the court expedite decision on emergency injunctive *1199 relief to: (1) increase flows on Clear Creek for the benefit of those spring-run that spawn there; and (2) raise the gates at Red Bluff Diversion Dam (“RBDD”) through July 15, 2008. 1 (6/20 Tr. 74:4-77:11.) 2 Plaintiffs were concerned that ongoing adult Chinook migrations, if completed, would diminish the potential value of any relief. The request was granted, and focused, supplemental expert testimony and documentary evidence was received.

Comprehensive testimony on the status of the species and the impacts of Project operations on the three species has been received from three expert fisheries biologists, Bruce Oppenheim, employed by NMFS, Dr. Christina Swanson of the Bay Institute, and Dr. Charles Hanson. Ronald Milligan, the Bureau’s Operations Manager of the CVP, and John Leahigh, Chief of the Project Operations Planning Branch for the SWP, both of whom are qualified experts in water project operations testified. Michael Urkov testified for Defendant-Intervenor Tehama Colusa Canal Authority, et at., (“TCCA”), and qualified as an expert regarding fish passage and operations at RBDD. After considering the testimony of the witnesses, the exhibits received in evidence, the written briefs of the parties, and oral arguments, the following findings of fact and conclusions of are entered.

To the extent any finding of fact may be interpreted as a conclusion of law or any conclusion of law may be interpreted as a finding of fact, it is so intended.

il. CONCLUSIONS OF LAW

A. Jurisdiction.

1. Jurisdiction exists under 28 U.S.C. § 1331 (Federal Question), as this case arises under the ESA, 16 U.S.C. § 1536 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. § 702 et seq.

2. Defendant-intervenors San Luis & Delta-Mendota Water Authority, West-lands Water District, State Water Contractors, and Glenn-Colusa Irrigation District, et at., have voluntarily submitted themselves to the district court’s jurisdiction by intervening and fully participating in this litigation. Defendant-intervenors Department of Water Resources (“DWR”) and TCCA expressly submitted to the Court’s jurisdiction as a condition of their intervention in these interim remedy proceedings. (Docs. 247 & 248, filed May 15, 2008.) TCCA agreed to limit their participation to non-duplicative and non-cumulative issues that are unique to RBDD and TCCA.

B. Agencies’ General Obligations Under the ESA.

3. ESA Section 7(a)(2) prohibits agency action that is “likely to jeopardize the continued existence” of any endangered or threatened species or “result in the destruction or adverse modification” of its critical habitat. 16 U.S.C. § 1536(a)(2).

4. To “jeopardize the continued existence of’ means “to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recov *1200 ery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.” 50 C.F.R. § 402.02; see also Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d 917 (9th Cir.2008) (“NWF v. NMFS II”) (rejecting agency interpretation of 50 C.F.R. § 402.02 that in effect limited jeopardy analysis to survival and did not realistically evaluate recovery, thereby avoiding an interpretation that reads the provision “and recovery” entirely out of the text). An action is “jeopardizing” if it keeps recovery “far out of reach,” even if the species is able to cling to survival. Id. at 931.

5. “[A]n agency may not take action that will tip a species from a state of precarious survival into a state of likely extinction. Likewise, even where baseline conditions already jeopardize a species, an agency may not take action that deepens the jeopardy by causing additional harm.” Id. at 930.

6.The Supreme Court summarizes the operation of ESA Section 7:

Section 7 of the ESA prescribes the steps that federal agencies must take to ensure that their actions do not jeopardize endangered wildlife and flora. Section 7(a)(2) provides that “[e]ach Federal agency shall, in consultation with and with the assistance of the Secretary [of Commerce or the Interior], insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an ‘agency action’) is not likely to jeopardize the continued existence of any endangered species or threatened species.” 16 U.S.C. § 1536(a)(2).

Once the consultation process contemplated by § 7(a)(2) has been completed, the Secretary is required to give the agency a written biological opinion “setting forth the Secretary’s opinion, and a summary of the information on which the opinion is based, detailing how the agency action affects the species or its critical habitat.” § 1536(b)(3)(A); see also 50 CFR § 402.14(h). If the Secretary concludes that the agency action would place the listed species in jeopardy or adversely modify its critical habitat, “the Secretary shall suggest those reasonable and prudent alternatives which he believes would not violate [ § 7(a)(2) ] and can be taken by the Federal agency ... in implementing the agency action.” 16 U.S.C, § 1536(b)(3)(A); see also 50 CFR § 402.14(h)(3). Regulations promulgated jointly by the Secretaries of Commerce and the Interior provide that, in order to qualify as a “reasonable and prudent alternative,” an alternative course of action must be able to be implemented in a way “consistent with the scope of the Federal agency’s legal authority and jurisdiction.” § 402.02. Following the issuance of a “jeopardy” opinion, the agency must either terminate the action, implement the proposed alternative, or seek an exemption from the Cabinet-level Endangered Species Committee pursuant to 16 U.S.C. § 1536(e)

Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 127 S.Ct. 2518, 2526, 168 L.Ed.2d 467 (2008).

7. In making determinations under the ESA, agencies must “use the best scientific and commercial data available.” 16 U.S.C. § 1536(a)(2).

C. ESA § 7(a) Only Applies to Actions that Fall Within a Federal Agency’s Discretion.

8. The Supreme Court recently upheld an NMFS/U.S. Fish and Wildlife Service *1201 (“USFWS”) regulation interpreting ESA § 7(a)(2) as only applying to actions “in which there is discretionary federal involvement or control.” Home Builders, 127 S.Ct. 2518 (interpreting 50 C.F.R. § 402.03). Home Builders addressed EPA’s decision to transfer to the State of Arizona its National Pollutant Discharge Elimination System (“NPDES”) permitting power under the Clean Water Act. The Home Builders Court held that this decision was non-discretionary:

While the EPA may exercise some judgment in determining whether a State has demonstrated that it has the authority to carry out § 402(b)’s enumerated statutory criteria, the statute clearly does not grant it the discretion to add another entirely separate prerequisite to that list. Nothing in the text of § 402(b) authorizes the EPA to consider the protection of threatened or endangered species as an end in itself when evaluating a transfer application. And to the extent that some of the § 402(b) criteria may result in environmental benefits to marine species, there is no dispute that Arizona has satisfied each of those statutory criteria.

Id. at 2536; see also NWF v. NMFS II, 524 F.3d 917, 927-28 (9th Cir.2008) (applying Home Builders, holding that despite existence of broad, unquantified statutory goals in applicable Reclamation statute, Bureau still retains discretion over Project operations and those operations are still subject to the ESA).

9.Certain aspects of the management of the CVP/SWP are non-discretionary as that term is utilized in Home Builders. Most importantly, in this case, federal

Reclamation law requires the Bureau to comply with non-conflicting state water law. Reclamation Act of 1902, Pub.L. 57-161, 32 Stat. 288 at § 8 (June 17, 1902); Central Valley Project Improvement Act (“CVPIA”) § 3406(b), Pub.L. 102-575, 106 Stat. 4600 (Oct. 30, 1992). Specifically, the Bureau must comply with State Water Resources Control Board (“SWRCB”) water rights and water quality decisions. See CVPIA § 3406(b) (“The Secretary ... shall operate the [CVP] to meet all obligations under State and Federal law, including... .all decisions of the California State Water Resources Control Board establishing conditions on applicable licenses and permits for the project....”).

10. For example, the Bureau has a mandatory (i.e., non-discretionary) legal obligation to make releases from Shasta Reservoir for delivery to the Sacramento River Settlement Contractors. Under the Sacramento River Settlement Contracts, Settlement Contractors are entitled to 100% of their contractual supply in all years except so-called “Shasta Critical Years.” In Shasta Critical Years, Settlement Contractors’ priority supply may be reduced by 25 percent. This mandatory obligation derives from the priority of the Settlement Contractors’ water rights, which facilitated issuance of state water permits to the Bureau to operate the CVP. The CVP’s water rights are subject to the Settlement Contractors’ rights. See e.g., SWRCB D-990 (granting water rights to the United States to operate the CVP, while also recognizing and prioritizing the protection of existing rights on the Sacramento River). 3

11. Non-priority water service contracts for irrigation and municipal and in *1202 dustrial uses by north-of-Delta, in-Delta, and south-of-Delta CVP contractors are, for the purposes of Home Builders, “discretionary” and are subject to the ESA. See NRDC v. Houston, 146 F.3d 1118, 1126 (9th Cir.1998); O’Neill v. United States, 50 F.3d 677, 686 (9th Cir.1995). 4

12. When Congress authorized the CVP in 1937, it stated that Project “dams and reservoirs shall be used, first, for river regulation, improvement of navigation, and flood control; second, for irrigation and domestic uses; and, third, for power.” Act of Aug. 26, 1937, ch. 832, 50 Stat. 844, 850; see also United States v. SWRCB, 182 Cal.App.3d 82, 135, 227 Cal.Rptr. 161 (1986). In 1992, Congress explicitly amended this hierarchy of use by enacting sections 3406(a) and (b) of the CVPIA, which make protection of non-ESA listed fish and wildlife co-equal priorities with irrigation. The CVPIA also expressly reaffirms the Bureau’s obligation to comply with the ESA in operating the CVP. See CVPIA § 3406(b) (“The Secretary ... shall operate the [CVP] to meet all obligations under State and Federal law, including. .. .the [ESA],...”).

13. As a top priority, the Bureau must “ ‘insure that actions authorized funded or carried out by [it] do not jeopardize the continued existence’ of a listed species,” even if doing so would require that the Bureau “alter ongoing projects in order to fulfill the goals of the Act.” TVA v. Hill, 437 U.S. 153, 186, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) (quoting 16 U.S.C. § 1536(a)(2)).

D. Remand Without Vacatur.

14. All defendants seek to keep the BiOP in place without vacatur and to retain the BiOp’s Incidental Take Permit (and associated take limits) during reconsultation until the new BiOp is issued. 5

15. The 2004 BiOp has been found unlawful, arbitrary, and capricious. (Doc. 256 at 146, 606 F.Supp.2d at 1193-94.) The usual remedy under such circumstances is remand to the agency. See Florida Power & Light v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). The court has the discretionary authority to impose a deadline for remand proceedings. Nat’l Org. of Veterans’ Advocates v. Sec’y of Veteran’s Affairs, 260 F.3d 1365, 1381 (Fed.Cir.2001). NMFS shall complete the new BiOp on or before March 2, 2009.

16. If the BiOp and its incidental take statement are vacated, the Bureau and *1203 DWR could be compelled to completely stop Project operations if they incidentally take one of the endangered species. Inoperative Projects would not maintain the status quo, but would instead produce catastrophic results to the public and all parties in interest. Plaintiffs, responsibly, have not suggested shutting down the Projects.

17. Vacating the BiOp would also remove the beneficial measures, terms, and conditions of the BiOp, such as numerous mitigation and adaptive management measures that to some extent are acknowledged by Plaintiffs as providing protection for the species. The BiOp also imposes other beneficial non-discretionary terms and conditions, including temperature controls on CVP and SWP managed rivers and restrictions on the operation of the Delta Cross Channel gates and RBDD gates. (Pltfs Ex. (“PE”) 3 at 212-16.)

18. Due to the disastrous disruptions that vacatur of the BiOp would cause to the vital water supply functions the CVP and SWP serve and the concomitant loss of protective measures for the species included in the BiOp and Incidental Take Statement, it appears most reasonable that the BiOp be remanded without vacatur, once further explanation of the steelhead take limit is provided. Agency decisions may remain in place, pending the completion of remand, even where they have been found “arbitrary and capricious.” See NRDC v. U.S. Dept. of the Interior, 275 F.Supp.2d 1136, 1143 (C.D.Cal.2002); Nat’l Wildlife Fed’n v. NMFS, 254 F.Supp.2d 1196, 1215-16 (D.Or.2003) (remanding BiOp without vacatur).

19. Nevertheless, the BiOp is subject to ESA Section 7(d) requirements.

E. The Bureau’s 7(d) Obligations During Re-Consultation.

20. Here, the Bureau voluntarily re-initiated consultation with NMFS over the 2004 OCAP. ESA section (7)(d) governs the Bureau’s actions during consultation and provides in relevant part:

After initiation of consultation required under subsection (a)(2), the Federal agency and the permit or license applicant shall not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (a)(2) of this section.

16 U.S.C. § 1536(d). “Section 7(d) was enacted to ensure that the status quo would be maintained during the consultation process, to prevent agencies from sinking resources into a project in order to ensure its completion regardless of its impacts on endangered species.” Washington Toxics Coal. v. EPA, 413 F.3d 1024, 1034-35 (9th Cir.2005). “The purpose of the consultation process ... is to prevent later substantive violations of the ESA.” Id. at 1034 (citing Sierra Club v. Marsh, 816 F.2d 1376, 1389 (9th Cir.1987)). It is well-settled that a court can enjoin agency action pending completion of section 7(a)(2) requirements. Id.

21. During consultation, only “non jeopardizing” actions may continue. Id. at 1035.

F. Standard for Issuance of Preliminary Injunctive Relief In ESA Cases.

22. In general, “the test for determining if equitable relief is appropriate is whether an injunction is necessary to effectuate the congressional purpose behind the statute.” Biodiversity Legal Found, v. Badgley, 309 F.3d 1166, 1177 (9th Cir.2002).

*1204 23. Outside the context of the ESA, the standard for granting a preliminary injunction balances plaintiffs likelihood of success against the relative hardship to the parties. The Ninth Circuit recognizes two different sets of criteria for preliminary injunctive relief. Under the traditional test, “a plaintiff must show: (1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to plaintiff if preliminary relief is not granted, (3) a balance of hardships favoring the plaintiff, and (4) advancement of the public interest (in certain cases).” Taylor v. Westly, 488 F.3d 1197, 1200 (9th Cir.2007). An “alternative” test requires that “a plaintiff demonstrate either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor.” Id. “These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases. They are not separate tests but rather outer reaches of a single continuum.” Id.

24. In the Ninth Circuit, in ESA cases, the conventional preliminary injunctive relief standard is substantially modified. Nat’l Wildlife Fed’n v. NMFS, 422 F.3d 782, 793-94 (9th Cir.2005) (NWF v. NMFS I) (“The traditional preliminary injunction analysis does not apply to injunctions issued pursuant to the ESA.”).

In cases involving the ESA, Congress removed from the courts their traditional equitable discretion in injunction proceedings of balancing the parties’ competing interests. As the Supreme Court has noted, “Congress has spoken in the plainest of words, 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, 98 S.Ct. 2279, 57 L.Ed.2d 117 (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); see also Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1073 (9th Cir.1996) (“Congress has determined that under the ESA the balance of hardships always tips sharply in favor of endangered or threatened species.”).

Id. (citations omitted); see also TVA, 437 U.S. at 187-88, 98 S.Ct. 2279 (concluding that Congress determined in the ESA that the value of endangered species is “incalculable” and prohibiting the balancing of economic harms against the Congressionally determined public interest in preserving endangered species); Home Builders, 127 S.Ct. at 2537 (reaffirming holding from TVA v. Hill that economic burden of enforcing the ESA cannot be considered by the courts, concluding that “the ESA’s no-jeopardy mandate applies to every discretionary agency action-regardless of the expense or burden its application might impose”); Nat’l Wildlife Fed’n v. Burlington N. R.R., Inc., 23 F.3d 1508, 1510-11 (9th Cir.1994) (“In cases involving the ESA, Congress removed from the courts their traditional equitable discretion in injunction proceedings of balancing the parties’ competing interests.”); Sierra Club v. Marsh, 816 F.2d 1376, 1383 (9th Cir.1987) (courts “may not use equity’s scales to strike a different balance”); Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1073 (9th Cir.1996) (“Congress has determined that under the ESA the balance of hardships always tips sharply in favor of endangered or threatened species.”). 6

*1205 25. Under this modified standard, plaintiffs must nevertheless demonstrate (1) a likelihood of success on the merits, and (2) a “reasonable likelihood” of irreparable harm. See NWF v. NMFS I, 422 F.3d at 794; NWF v. Burlington, 23 F.3d at 1511 (re-affirming that non-traditional injunctive relief standard applies, but finding that Plaintiffs still need to show likelihood of future injury to members of the endangered species).

(1) Likelihood of Success on the Merits.

26. With respect to likelihood of success, Plaintiffs have already succeeded on the merits of their ESA claims regarding the legality of the 2004 BiOp.

26.1. TCCA suggests that at least with respect to the request for modifications to the operations of RBDD, Plaintiffs “cannot establish any likelihood of success on the merits” because the district court ruled in favor of the federal defendants on the issue of sufficiency of the adaptive management plan and mitigation measures for RBDD. TCCA assigns too much significance to the summary judgment ruling on that issue. The summary judgment decision found serious substantive errors throughout the BiOp. For example, NMFS failed to explain contradictory evidence as to the survival and recovery of the species and their habitat; failed to analyze the effect of the Projects on critical habitat; failed to evaluate the impact of the Projects in light of the species’ life cycles; failed to properly evaluate the baseline; and failed to evaluate the effects of climate change. (Doc. 256, filed May 20, 2008, 606 F.Supp.2d 1122.)

26.2. With respect to the mitigation measures, Plaintiffs raised essentially the same challenge in this case as in the smelt case, arguing that the mitigation measures are not sufficiently definite and enforceable. Although the salmonid mitigation measures were found sufficiently certain and mandatory to be enforceable, the decision did not validate all mitigation measures as applied or *1206 find that the measures fully satisfy NMFS’ and the Bureau’s Section 7(a)(2) responsibilities with respect to any aspect of ongoing joint Project operations. Such a finding would directly conflict with the holding that NMFS failed to adequately analyze critical factors, like the impact of Project operations, including RBDD operations, on the species’ recovery and critical habitat. Rather, the summary judgment decision determined that the mitigation measures identified in the BiOp were sufficiently certain to occur to be enforceable and implementable, and were distinguishable from the Delta Smelt Risk Assessment Matrix, which required no more than that agency scientists and representatives consult, and, despite ascertained action triggers and catastrophic conditions, the mitigation measures had never been implemented to protect the smelt.

(2) “Reasonable Likelihood” of Irreparable Harm.

(a) Injunctive Relief is Not Automatic.

27. Plaintiffs assert that, in light of Congressional pronouncements regarding the primacy of preserving endangered species, whenever an ESA violation has been conclusively established, as here, the “appropriate remedy” is to enjoin agency action until there has been “substantial compliance with [the ESA’s] procedural requirements.” Thomas v. Peterson, 753 F.2d 754, 764 & n. 8 (9th Cir.1985).

28. This is not the approach the Ninth Circuit took in reviewing a district court’s issuance of injunctive relief under the ESA in NWF v. NMFS I, 422 F.3d at 793, where the district court invalidated the controlling BiOp, and then heard plaintiffs’ request for injunctive relief pending completion of a new BiOp. Id. at 796-97. The district court analyzed whether irreparable harm would result from Columbia River Power System operations pending completion of the remand. Id. The Ninth Circuit affirmed this approach, holding that “[a]l-though not every statutory violation leads to the ‘automatic’ issuance of an injunction in the context of the ESA ‘the test for determining whether equitable relief is appropriate is whether an injunction is necessary to effectuate the congressional purpose behind the statute.’ ” Id. at 795 (quoting Badgley, 309 F.3d at 1177) (emphasis added).