## Facts

- Congress authorized the Grand Prairie Project, a U.S. Army Corps of Engineers water-supply project designed to reduce agricultural pumping from depleted aquifers by diverting water from the White River through canals and pipelines.
- The project area included sensitive bottomland hardwood ecosystems and federally managed wildlife refuge lands.
- After construction began, the U.S. Fish and Wildlife Service reported the apparent rediscovery of the ivory-billed woodpecker, a species listed as endangered under the Endangered Species Act (ESA), in or near the project vicinity.
- Construction was suspended while the agencies reassessed potential effects on the woodpecker and its habitat.
- The Corps performed supplemental environmental review and, under ESA § 7, consulted with FWS regarding the project’s effects on the woodpecker.
- FWS issued a Biological Opinion concluding the project was not likely to jeopardize the woodpecker’s continued existence if specified mitigation, monitoring, and project modifications were implemented; the Corps adopted those measures.
- Environmental organizations sued under the ESA, NEPA, and the APA and moved for a preliminary injunction to halt further work pending adjudication.

## Issues

1. Whether the Corps and FWS likely violated ESA § 7(a)(2) by failing to use the best scientific and commercial data available when assessing the project’s effects on the endangered ivory-billed woodpecker, including the adequacy of surveys and on-site investigation.
2. Whether plaintiffs satisfied the requirements for a preliminary injunction, including likelihood of success on the merits, irreparable harm, balance of harms, and the public interest.

## Decision

- The court granted plaintiffs’ motion for a preliminary injunction.
- The court found plaintiffs showed a substantial likelihood of success on their ESA claim because the consultation and no-jeopardy determination likely rested on insufficient field surveys and investigation in the action area.
- The court found a sufficient threat of irreparable harm because potential impacts to an endangered species and its habitat are not readily remediable once project activities proceed.
- The court held the balance of harms favored an injunction because the risk to the endangered species outweighed the harm from delaying project activities at the preliminary stage.
- The court concluded the public interest favored ensuring ESA compliance before continuing construction and implementation.
- The project was enjoined pending additional ESA-compliant evaluation addressing identified deficiencies.

## Legal Principles

- ESA § 7(a)(2) requires federal agencies, through consultation with FWS, to ensure agency action is not likely to jeopardize the continued existence of an endangered species.
- ESA § 7 decisionmaking must be based on the “best scientific and commercial data available,” which may require adequate surveys and on-site assessment where species presence and habitat use are uncertain and stakes are high.
- Under APA review, an agency’s ESA-related decision is unlawful if it is arbitrary or capricious, including where it rests on inadequate investigation or unsupported assumptions about species presence or impacts.
- A preliminary injunction may issue where plaintiffs show likely success on an ESA claim and a credible risk of irreparable harm to a listed species; courts weigh equities and the public interest with the ESA’s protective priorities in view.

## Conclusion

The court preliminarily halted the Grand Prairie Project because plaintiffs were likely to prove that the Corps and FWS did not satisfy ESA § 7’s best-available-data obligation in evaluating effects on the rediscovered ivory-billed woodpecker, and the risk of irreparable harm to an endangered species outweighed the harm from delay pending further ESA-compliant analysis.


Nat'l Wildlife Fed'n v. Harvey, 440 F. Supp. 2d 940 (E.D. Ark. 2006)