## Facts

- Threatened salmon and steelhead populations migrate through the Federal Columbia River Power System (FCRPS), a network of federal dams whose operations affect fish passage and survival.
- Under ESA § 7, the operating agencies consulted with the National Marine Fisheries Service (NMFS) regarding whether continued FCRPS operations would jeopardize listed salmonids.
- After an earlier NMFS biological opinion (BiOp) was invalidated, NMFS issued a 2004 BiOp finding no jeopardy from continued operations.
- The 2004 BiOp treated much of existing dam structure and operations as “nondiscretionary” and part of the “environmental baseline,” narrowing the jeopardy analysis to incremental “discretionary” changes.
- The district court found plaintiffs likely to succeed in showing the 2004 BiOp was unlawful and entered a preliminary injunction requiring specified spill at certain dams during migration periods to aid juvenile fish passage.
- NMFS and other federal defendants appealed, challenging the injunction and arguing the district court failed to defer to NMFS’s technical judgments.

## Issues

1. Whether the district court abused its discretion by granting a preliminary injunction requiring additional spill at FCRPS dams to protect ESA-listed salmonids.
2. Whether the district court failed to give appropriate deference to NMFS’s scientific and technical expertise in evaluating spill effectiveness and biological harm.

## Decision

- The Ninth Circuit affirmed the preliminary injunction.
- The court held the district court applied the correct preliminary-injunction framework for ESA cases and did not abuse its discretion in ordering interim spill.
- The court upheld the district court’s preliminary conclusion that plaintiffs were likely to succeed because the 2004 BiOp’s approach to defining the action and baseline plausibly undermined the ESA § 7 jeopardy analysis.
- The court agreed the record supported a finding of irreparable harm absent spill, based on expert testimony and data regarding juvenile survival and passage.
- The court rejected the argument that the district court improperly displaced NMFS’s expertise, concluding the court evaluated competing evidence without substituting its own technical views.
- The court found the geographic and temporal scope of the spill order sufficiently tied to biological need and supported by prior operational experience and evidence.

## Legal Principles

- Appellate review of an ESA preliminary injunction is for abuse of discretion; factual findings are reviewed for clear error and legal conclusions de novo.
- In ESA cases, once plaintiffs show likely success and irreparable harm to listed species, the balance of hardships and public interest generally favor protective relief.
- Judicial deference to agency technical judgments is substantial but not unlimited; courts may set aside agency action as arbitrary and capricious and may order interim relief when supported by the record.
- An agency may not evade ESA § 7 responsibilities by defining the “action” so narrowly—through baseline/discretion framing—that the jeopardy analysis fails to account for the action’s full effects on listed species.

## Conclusion

The Ninth Circuit upheld interim spill requirements for the Columbia–Snake hydropower system because the district court reasonably found likely illegality in NMFS’s 2004 BiOp, a non-speculative risk of irreparable harm to threatened salmonids, and equities that, consistent with ESA priorities, favored protective measures pending final resolution.


Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 422 F.3d 782 (9th Cir. 2005)