## Facts

- The case arose from long-running disputes over operation of federal reservoirs in the Apalachicola–Chattahoochee–Flint (ACF) River Basin.
- The U.S. Army Corps of Engineers operated multiple ACF projects, including Jim Woodruff Lock and Dam, whose releases affect flows in the Apalachicola River.
- Two federally protected mussel species inhabited shallow shoal areas in the Apalachicola River; rapid drops in river stage could strand and kill mussels.
- In early 2006, the Corps began formal consultation with the U.S. Fish and Wildlife Service (FWS) under Endangered Species Act (ESA) § 7 and adopted an Interim Operations Plan (IOP) to govern releases pending a biological opinion.
- In mid-2006, severe drought reduced inflows and storage, and large numbers of mussels were reportedly stranded and killed as river levels fell.
- Florida obtained an initial TRO requiring minimum flows, later reduced by agreement during settlement discussions; after negotiations ended, the Corps reverted to the IOP and reduced releases.
- Florida filed a renewed TRO motion seeking an order requiring releases of at least 6,300 cubic feet per second from Jim Woodruff Dam until the expected issuance of FWS’s biological opinion.
- The Corps opposed, citing drought constraints, competing authorized purposes, mitigation efforts (including gradual ramp-down), and evidence from FWS indicating anticipated incidental take but no jeopardy to the species.

## Issues

1. Whether Florida showed that the Corps’ dam operations under the IOP, rather than drought conditions, caused an unlawful “take” of listed mussels under ESA § 9.
2. Whether Florida satisfied the requirements for a temporary restraining order compelling minimum releases of 6,300 cfs pending completion of ESA consultation.

## Decision

- The court denied Florida’s renewed motion for a temporary restraining order.
- The court held Florida failed to demonstrate that the Corps’ actions caused an unlawful ESA “take,” given the role of extreme drought and the evidentiary record.
- The court found Florida did not establish the equitable prerequisites for emergency injunctive relief, including a substantial likelihood of success on the merits.
- The court declined to impose a judicially mandated minimum-flow regime while agency consultation was ongoing and operational tradeoffs were being managed under the IOP.

## Legal Principles

- ESA § 9 prohibits “take” of listed species; “take” includes killing or “harm,” and “harm” can include habitat modification that actually kills or injures wildlife.
- A plaintiff alleging an unlawful take must show a causal link between the challenged action and the take; evidence of species mortality alone is insufficient if causation is not established.
- Temporary restraining orders require proof of likelihood of success on the merits, irreparable harm, that the balance of harms favors the movant, and that relief serves the public interest.
- Courts may consider ongoing ESA § 7 consultation and agency technical judgments when evaluating whether emergency relief is warranted in complex operational settings.

## Conclusion

The court refused to order higher interim releases from Jim Woodruff Dam, concluding Florida had not shown that the Corps’ IOP decisions, as distinct from severe drought conditions, caused an unlawful ESA take and had not met the demanding requirements for emergency injunctive relief while formal ESA consultation was underway.


Alabama v. U.S. Army Corps of Eng’rs, 441 F. Supp. 2d 1123 (N.D. Ala. 2006)