Case 3:12-cv BHS Document 180 Filed 01/23/14 Page 1 of 27

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1 Case :-cv-00-bhs Document 0 Filed 0// Page of 0 WILD FISH CONSERVANCY, et al., v. Plaintiffs, NATIONAL PARK SERVICE, et al., Defendants, PRELIMINARY INJUNCTION - UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA ) ) ) ) ) ) ) ) ) HONORABLE BENJAMIN H. SETTLE PRELIMINARY INJUNCTION WITH MOTION FOR RELIEF FROM ORDER AND/OR FOR RECONSIDERATION NOTE ON MOTION CALENDAR: February, East John Street () 0-

2 Case :-cv-00-bhs Document 0 Filed 0// Page of 0 I. MOTION. Plaintiffs hereby move for a preliminary injunction directing Defendants Doug Morrill and Larry Ward (collectively, Elwha Defendants ), in their official capacities as Natural Resources Director and Hatchery Manager for the Lower Elwha Klallam Tribe to take such actions as are necessary to: () prevent the release of hatchery steelhead and coho salmon smolts into the Elwha River or its tributaries, or, alternatively, reduce such releases to 0,000 steelhead smolts and 0,000 coho smolts annually; and () prevent the hatchery s steelhead broodstock collection activities. Plaintiffs further move for relief from and/or reconsideration of the Order Granting [Elwha] Defendants Motion to Dismiss, Dkt. ( Dismissal Order ). II. INTRODUCTION. The Elwha Defendants operated a hatchery in violation of the Endangered Species Act ( ESA ) for over a decade. Until now, the harm these operations inflicted on threatened salmonids was mostly confined to the lower Elwha River below the Elwha Dam. The dams on the river are now coming down under direction from Congress and through federal tax dollar expenditures of $ million. Hatchery fish released this spring will return to the Elwha River in the coming years and access seventy miles of habitat above the former dam sites, mostly within the Olympic National Park. These hatchery fish will overwhelm the fragile wild fish populations that remain, severely impeding and even preventing the full recovery of wild fish. Hatchery fish harm wild salmonids through a variety of mechanisms, most notably through genetic introgression. Fish become domesticated in a hatchery environment, rendering them less fit to survive and reproduce in the wild. When hatchery fish are allowed to spawn in Plaintiffs also move for relief from the fourteen day deadline for motions for reconsideration. East John Street PRELIMINARY INJUNCTION - () 0-

3 Case :-cv-00-bhs Document 0 Filed 0// Page of 0 the wild, their maladaptive genes are introgressed into the wild population through crossbreading. This can greatly reduce the reproductive success of wild fish, inhibiting and even preventing the full recovery of depressed populations. Hatchery fish further harm wild populations through ecological interactions, such as increased competition for food and territory. The Elwha River above the dam sites lies mostly within the Olympic National Park and the Olympic Wilderness Area and is uniquely pristine due to the statutory protections afforded these public lands. The river s wild salmonid populations are currently depressed due to the dams impacts, but experts anticipate that these populations will quickly expand as they are able to access and recolonize habitat above the dams. The large-scale releases of hatchery fish proposed to occur this spring, which are designed to expedite commercial harvests, threaten the recovery of wild salmonids and thereby undermine the primary goal of dam removal. The Elwha Defendants implemented their hatchery programs for many years without any reviews or authorizations required under the ESA. Dam removal began in September, and Plaintiffs initiated this lawsuit in February, in an effort to put an end to the Elwha Defendants longstanding ESA violations. Plaintiffs intended to seek a preliminary injunction before the spring hatchery releases began. However, in response to the litigation the Elwha Defendants finally submitted plans to National Marine Fisheries Service ( NMFS ) seeking review and approval of their hatchery operations, which NMFS hastily approved on December 0,. The Elwha Defendants filed a motion to dismiss ten days later before Plaintiffs were able to review or conduct discovery on NMFS authorization documents or the Elwha Defendants compliance therewith. The Court s Dismissal Order granted that motion. The Elwha Defendants and NMFS compliance efforts fall short of requirements under the ESA and the National Environmental Policy Act ( NEPA ) and therefore must be set aside PRELIMINARY INJUNCTION - East John Street () 0-

4 Case :-cv-00-bhs Document 0 Filed 0// Page of 0 under the Administrative Procedure Act ( APA ). Further, applicable statutory and regulatory language is unambiguous in requiring the Elwha Defendants to both plead and prove compliance with these purported ESA authorizations in order to claim an exemption from liability. The Elwha Defendants have done neither and are therefore liable under section of the ESA for implementing hatchery programs that harm threatened salmonids and their ability to recover. Congress declared a national priority of protecting threatened species in enacting the ESA. The Supreme Court has held that district courts therefore may not conduct a traditional balancing of the equities when determining whether to enjoin ESA violations. Rather, the ESA demands that unlawful actions be enjoined until compliance with the statute is achieved. Plaintiffs request herein that the Court enjoin the unlawful releases of hatchery steelhead and coho salmon proposed to occur this spring to prevent irreparable injury to threatened salmonids. Alternatively, Plaintiffs request the Court order a reduction in these unlawful releases to no more than 0,000 steelhead smolts and 0,000 coho salmon smolts annually. Such releases would continue to supply the hatchery s broodstock supply thereby ensuring against any risk of extirpation while greatly reducing the unlawful harm inflicted on threatened salmonids. Plaintiffs also request that the Court enjoin the Elwha Defendants unlawful and unnecessary steelhead broodstock activities to prevent irreparable harm to threatened steelhead. III. ENDANGERED SPECIES ACT. Plaintiffs prior briefing describes the requirements of the ESA. Dkt., :-:; Dkt., 0:-:. Plaintiffs do not repeat those discussions here, but instead incorporate them herein with this reference and describe provisions particularly pertinent to this motion. Section of the ESA makes it unlawful to take species listed as endangered under the statute. U.S.C. (a)()(b). Take is defined broadly to include actions that kill, PRELIMINARY INJUNCTION - East John Street () 0-

5 Case :-cv-00-bhs Document 0 Filed 0// Page of 0 harass, harm, capture or collect protected species. U.S.C. (). Harm includes habitat modification that kills or injures fish by impairing behavioral patterns, including breeding, migrating, feeding, or sheltering. 0 C.F.R..0. Regulations promulgated under section (d) of the ESA, known as the (d) Rule, apply the take prohibition to salmonid species listed as threatened. 0 C.F.R..0(c)(), (),.(a). The (d) Rule includes exemptions from take liability, referred to as the (d) Limits. 0 C.F.R..(b). One exemption Limit exempts take resulting from a joint tribal/state plan that NMFS has determined will not appreciably reduce the likelihood of survival and recovery of affected threatened [species]. 0 C.F.R..(b)()(i). IV. STATEMENT OF FACTS. Plaintiffs pending motion for summary judgment includes a detailed statement of facts. Dkt., :-:. Plaintiffs do not repeat that description here, but instead incorporate it with this reference and address facts particularly relevant to this motion. A. Threatened Salmonids in the Elwha River Watershed. Three threatened salmonids are present in the Elwha River the Puget Sound steelhead distinct population segment ( DPS ), the Puget Sound Chinook salmon evolutionary significant unit ( ESU ), and bull trout. Id. at :-:. Recovery of the Elwha River steelhead and Chinook salmon populations, which are currently severely depressed, is critical to the recovery and delisting of their Puget Sound-wide ESA-listed segments. Id. at :-, :-:. B. The Elwha Defendants Hatchery Releases and Broodstock Collection. Elwha Defendant Larry Ward has managed the Lower Elwha Klallam Tribe s hatchery operations since. Dkt. -, p. ; Dkt. -, pp.,. Mr. Ward is responsible for managing all hatchery operations and other fish enhancement activities, maintaining the hatchery PRELIMINARY INJUNCTION - East John Street () 0-

6 Case :-cv-00-bhs Document 0 Filed 0// Page of 0 and associated facilities and equipment, and supervising hatchery staff. Dkt. -, pp., ; Dkt. -, p.. Mr. Ward is under the supervision of the Lower Elwha Klallam Tribe s Fisheries Manager/Natural Resources Director. Dkt. -, p. ; Dkt. -, p.. Elwha Defendant Doug Morrill has been the Fisheries Manager/Natural Resources Director for the Lower Elwha Klallam Tribe since 0. Dkt., p.. Mr. Morrill oversees the hatchery and fisheries programs. Dkt., pp. -; Dkt. -, pp. -0. The Elwha Defendants plan to release approximately,000 hatchery steelhead smolts and approximately,000 hatchery coho salmon smolts into the Elwha River beginning in March or April. NMFS0; NMFS0. The Elwha Defendants capture returning adult steelhead each winter for broodstock. See NMFS0. Particularly disconcerting is that NMFS seems unsure as to whether wild-origin (ESA-listed) steelhead are taken for this purpose, or whether only hatchery-origin (not protected) will be used, as it has made contradictory statements on this significant issue. Compare NMFS0, 0 with NMFS0. C. Harm to Threatened Salmonids from the Elwha River Hatchery Programs. It was once believed that hatchery programs could provide abundant salmon for harvest in replacement of natural production systems. NMFS00-. Today it is understood by most experts in the field that hatcheries have contributed to the decline of salmonid populations: The evidence has been accumulating and today the weight of that evidence is clear: hatcheries are part of the salmon s problem. The myth that hatcheries are the solution to the problem of the salmon s declining abundance is still strong and it is a formidable impediment to the incorporation of our current scientific understandings of the effects of hatcheries into salmon management and recovery programs. A situation clearly exemplified by the Elwha recovery program. NMFS00. As one court noted, the underlying science regarding the impact of hatchery fish on natural populations and the conclusions reached by NMFS based on that science are PRELIMINARY INJUNCTION - East John Street () 0-

7 Case :-cv-00-bhs Document 0 Filed 0// Page of 0 entirely undisputed Cal. State Grange v. Nat l Marine Fisheries Serv., F.Supp.d, - (E.D. Cal. 0). NMFS conclusions included: Id. at. Hatchery fish are less fit for survival in the wild than genetically similar wild fish Fish removed from nature to propagate in hatcheries always constitute a loss to the evolutionary significant population [N]o one has ever used a salmon hatchery to restore a depressed wild population to a point where it is selfsustaining Hatchery releases have a significant negative effect, on the productivity of wild populations by competing with wild fish for food and space; diluting the fitness of wild fish when adult hatchery fish stray and spawn with wild fish; and by potentially spreading disease.. Harm from genetic introgression. Reduced fitness resulting from genetic introgression is one of the greatest concerns with hatchery programs. See Dkt., :-: (and materials cited therein). Dr. Gordon Luikart, an expert in animal conservation and population genetics, explains: Hatchery domestication results from a process analogous to natural selection, but occurring under unnatural conditions the individual fish selected are those better adapted to live in unnatural conditions. The process results in loss of the ability to avoid predation, loss of disease resistance, loss of ability to forage and spawn efficiently, etc. This artificial selection pressure is strong; it results in rapid adaptation to captivity with loss of the ability to survive and reproduce effectively in the wild. Dkt.,. Maladaptive genes are transferred to wild fish when hatchery fish reproduce in the wild, which reduces the productivity of the wild population. See id. at -,. The hatchery steelhead program provides substantial opportunities for domestication and the released smolts most likely have greatly reduced fitness. Id. at, -. This program is designed to produce around hatchery fish returning annually to spawn in the newlyaccessible habitat above the dam sites. Id. at ; NMFS0. These hatchery fish will interact genetically with the wild steelhead and thereby reduce the reproductive success of the PRELIMINARY INJUNCTION - East John Street () 0-

8 Case :-cv-00-bhs Document 0 Filed 0// Page of 0 wild population. Dkt.,, ; NMFS0-. Available studies indicate that these reductions are significant. Dkt., -, -. The maladaptive genes will persist in the wild population for many generations even after the hatchery program has ceased. Id. at. The wild steelhead population is severely depressed, with less than 0 retuning adults annually. Id. at. Returning adults from the proposed hatchery release of,000 smolts will overwhelm the wild fish at a ratio from three-to-one to eight-to-one. Id. This will result in significantly lowered fitness of the wild population through repeated cross-breeding between the remaining wild adults and the domesticated and increasingly inbred hatchery fish. Id. Further, habitat above the dams contains a rainbow trout population that produces native ESA-listed steelhead. Id. at. Dam removal will allow these fish to migrate to and from the ocean once again and thereby contribute to the recovery of Elwha River steelhead, but will also expose them to adverse genetic interactions with hatchery steelhead. Id. at,,. The genetic effects from the Elwha Defendants steelhead program are highly likely to significantly impair the fitness of the wild winter-run steelhead population. Id. at. The reduction in reproductive success will likely have serious and long-lasting harmful effects on the rate that the native steelhead population can rebuild and recolonize the newly accessible habitat made available by the removal of the two dams. Id. at, ; and Dkt.,,.. Harm from ecological interactions. Hatchery fish harm wild salmonids by increasing competition for food resources and for territory, through increased competition for spawning mates and by preying on wild fish. Dkt., ; NMFS0-0, -; NMFS00. The,000 hatchery steelhead smolts and,000 hatchery coho salmon smolts proposed to be released this spring will compete with ESA-protected steelhead smolts, Chinook PRELIMINARY INJUNCTION - East John Street () 0-

9 Case :-cv-00-bhs Document 0 Filed 0// Page of 0 salmon smolts, and juvenile bull trout for food and for rearing and sheltering space in the lower Elwha River and in the estuary and nearshore environments. Dkt., -,. These ecological interactions will kill, injure, and otherwise cause take of threatened salmonids. Id. at -, ; and see NMFS00-, 0-; NMFS0-0. Threatened Chinook salmon, steelhead, and bull trout will also be killed and injured by the released hatchery fish through predation. Dkt.,, ; NMFS00, 0-.. Harm from broodstock collection activities. The Elwha Defendants, beginning this winter of -, intend to annually capture and kill up to 00 adult steelhead that are returning to the Elwha River to supply the hatchery s broodstock. See Dkt., 0; and NMFS0; and NMFS0. The Elwha Defendants intend to use wild natural-origin (NOR) steelhead (i.e., ESA-protected) for this purpose. NMFS0. It is unclear whether NMFS understands this as it has made contradictory statements on the issue. Compare NMFS0, 0 with NMFS0. These broodstock collection activities will interfere with wild steelhead spawning migration and success further harming the depressed wild steelhead population and its ability to recover. Dkt.,.. Conclusions on the harm from the hatchery programs. While NMFS posits that the hatcheries will increase the abundance of fish during the near-term, even it acknowledges that supportive breeding generally does not benefit natural population productivity and that the track record of supportive breeding in producing naturalorigin adult fish returns is unproven. NMFS0-. The hatchery activities challenged herein will likely harm the recovery of wild salmonids and may even prevent the full recovery potential of the watershed. Dkt.,,, ; Dkt.,,. This once in a lifetime PRELIMINARY INJUNCTION - East John Street () 0-

10 Case :-cv-00-bhs Document 0 Filed 0// Page 0 of 0 project consisting of the largest salmon recovery project in United States history and costing $ million in taxpayer dollars would be wasted if that were allowed to occur. D. The Hatchery Programs Are Not Necessary to Prevent Extirpation. The hatchery programs are not necessary to prevent the extirpation of salmonids during dam removal or to ensure recolonization. See Dkt.,,. Notably, steelhead have migrated above the dam site to safe spawning habitat during dam deconstruction when sediment levels are expected to be the highest. See Dkt.,. Further, the scale of the hatchery programs is far in excess of what would be necessary to ensure against any risk of extirpation. The Federal Defendants recognize that the hatcheries are not necessary to restore fish populations. NMFS00; NMFS000. Rather, these large-scale programs are intended to increase short term abundance levels to expedite harvests despite their detrimental impact on the recovery potential of Elwha River salmonid populations. See NMFS00; and [NPS] 000. The proposed release of,000 hatchery steelhead smolts is expected to return around,00 adult hatchery fish to the Elwha River annually. NMFS0; Dkt.,. Only 0 to 00 of these adults are proposed to be taken to supply the hatchery s broodstock, leaving the remaining hatchery fish to interact with wild steelhead. See NMFS0; and Dkt.,. This is far in excess of what is appropriate for a conservation hatchery program. Dkt.,. Annual releases of 0,000 steelhead smolts would be more than sufficient to supply continued broodstock collections and ensure preservation of the stock. Id. at. The proposed release of,000 coho salmon smolts is also far in excess of that needed to protect this stock from any risks associated with dam removal. The Elwha Defendants propose to take only 00 to 00 returning coho salmon annually for broodstock. NMFS0. Releasing 0,000 smolts would be sufficient to meet this objective. Dkt.,. PRELIMINARY INJUNCTION - 0 East John Street () 0-

11 Case :-cv-00-bhs Document 0 Filed 0// Page of 0 The steelhead broodstock collection activities proposed are also not necessary. The Elwha Defendants removed wild steelhead eggs and smolts from the Elwha River each year between 0 and, which are being raised for four years and then spawned to provide broodstock that are then reared for two year prior to release. NMFS0, -; Dkt.,. This program will thus continue to supply broodstock needs through (for the releases). See Dkt.,, ; NMFS0. This program has been successful, with wild eggs and fry removed in 0 allowing for a release of, smolts in. NMFS0. There is thus no need to remove wild returning steelhead as proposed until winter -. V. PROCEDURAL HISTORY. The Elwha Defendants operated their hatchery programs for over a decade without any of the reviews and authorizations required under the ESA. PRELIMINARY INJUNCTION - Dam removal on the Elwha River began in September, and is expected to last two and a half to three years. Dkt. -, p.. Plaintiffs commenced this lawsuit in February,, in an effort to bring the hatchery programs into compliance with the ESA before they cause irreparable injury to the wild Elwha River salmonid populations and their recovery potential in the upper basin above the dams. See Dkt.. Plaintiffs filed a summary judgment motion on November,, requesting that the Court find the Elwha Defendants in violation of section of the ESA. Dkt.. Plaintiffs asserted therein that there were no disputed questions of fact as to whether the Elwha Defendants were causing take especially given that the Elwha Defendants were holding in captivity and killing wild ESA-listed steelhead to supply broodstock. See id. at :0-:. Plaintiffs filed a preliminary injunction motion on November,, seeking relief similar to that requested East John Street () 0-

12 Case :-cv-00-bhs Document 0 Filed 0// Page of 0 herein. Dkt.. The Elwha Defendants responded to the summary judgment motion by producing testimony that did not deny that the hatchery programs cause some take, but instead generally asserted that Plaintiffs experts overstated the concerns. See, e.g., Dkt. 0,. Before the Court ruled on the pending motions, NMFS finally issued a determination on the hatchery programs under Limit of the (d) Rule on December 0, ( Limit Approval ). NMFS0-; Dkt. -. The Limit Approval is subject to the National Environmental Policy Act ( NEPA ) and section of the ESA. NMFS therefore also issued a biological opinion ( NMFS December 0, BiOp ) under section of the ESA and an environmental assessment ( EA ) with a finding of no significant impact ( FONSI ) under NEPA. See Dkt.. The United States Fish and Wildlife Service ( FWS ) issued a biological opinion on December,, on effects to threatened bull trout ( FWS BiOp ). NMFS0-. NMFS and FWS determined in these documents that the hatchery programs cause take of ESA-listed Chinook salmon, steelhead, and bull trout through a variety of mechanisms, including those discussed herein. NMFS00-; NMFS0-. NMFS and FWS documents collectively purport to provide limited exemptions to ESA section liability for take caused by the hatchery programs subject to compliance with various conditions. The Court denied summary judgment on December,, finding that Plaintiffs had failed to meet their Rule burden. Dkt., :-:. The Court further questioned Plaintiffs timing of that motion s noting date in relation to NMFS issuance of the Limit Approval. The hatchery became subject to the ESA by at least when Puget Sound Chinook salmon and bull trout were listed. See Fed. Reg.,0 (March, ); and Fed. Reg.,0 (Nov., ). Plaintiffs were unaware of NMFS intent to issue new documents on December 0,, until NMFS stated as much in its response to the motion. Plaintiffs were quite surprised by the timing of NMFS mid-litigation actions given the many years of ESA non-compliance. Plaintiffs filed their summary judgment motion because they believed that there were no questions of fact as to whether the hatchery programs cause take of ESA-listed species East John Street PRELIMINARY INJUNCTION - () 0- Id.

13 Case :-cv-00-bhs Document 0 Filed 0// Page of 0 at :-. Plaintiffs therefore withdrew the preliminary injunction motion on December,, with the stated expectation of filing a revised motion that addressed the new Limit Approval and related documents. Dkt.. The Elwha Defendants, however, filed a motion to dismiss the next day, arguing that the Limit Approval rendered the claim against them moot. Dkt.. The Court s Dismissal Order granted that motion on February,, and also denied Plaintiffs request for discovery before dismissal of the claim. Dkt.. Plaintiffs and Federal Defendants subsequently filed cross-motions for summary judgment on the remaining claims, which include challenges to the documents supporting NMFS Limit Approval. Dkt. ; Dkt.. Those motions were fully briefed as of August,, and remain pending before the Court. See Dkt.. VI. STANDARDS OF REVIEW. A. Standards for Relief from an Order and for Reconsideration. Rule 0(b)() allows for relief from an order for any reason that justifies relief where a party demonstrate[s] both injury and circumstances beyond [its] control that prevented [it] from proceeding in a proper fashion. Harvest v. Castro, F.d, (th Cir. 0). Motions for reconsideration are disfavored and will ordinarily be denied in the absence of a showing of manifest error in the prior ruling or a showing of new facts or legal authority which could not have been brought to the Court s attention earlier. LCR (h). and because they desired, as they have from the outset of this lawsuit, timely and efficient adjudication of their claims. See Dkt., :-:, :-0:. NMFS December 0,, actions were the third time that the agency issued new documents during the pendency of this lawsuit in an effort to provide new defenses to Plaintiffs claims. See Dkt. ; and Dkt.. PRELIMINARY INJUNCTION - East John Street () 0-

14 Case :-cv-00-bhs Document 0 Filed 0// Page of 0 B. Standard for Preliminary Injunction. Generally, to obtain a preliminary injunction, a plaintiff must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., U.S., (0). This standard, however, is significantly altered where violations of the ESA are involved. The Supreme Court has held that the language, history, and structure of the [ESA] indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities, and that once Congress has so decided the order of priorities in a given area, it is for the courts to enforce them when enforcement is sought. Tenn. Valley Auth. v. Hill, U.S.,, (). Traditional equitable balancing therefore does not apply because the plain intent of Congress in enacting the statute was to halt and reverse the trend toward species extinction, whatever the cost. Id. at (emphasis added); Nat l Wildlife Fed n v. Nat l Marine Fisheries Serv., F.d, (th Cir. 0) ( The traditional preliminary injunction analysis does not apply to injunctions issued pursuant to the ESA. ). Courts do not balance equities, hardships, or public interests in determining whether to issue an injunction under the ESA. Sierra Club v. Marsh, F.d, (th Cir. ); Nat l Wildlife Fed n, F.d at - ( Congress removed from the courts their traditional equitable discretion in injunction proceedings of balancing the parties competing interests. (internal citations omitted)). Congress decided that the balance of hardships always tips sharply in favor of the threatened species. Wash. Toxics Coal. v. Envtl. Prot. Agency, F.d 0, 0 (th Cir. 0). PRELIMINARY INJUNCTION - East John Street () 0-

15 Case :-cv-00-bhs Document 0 Filed 0// Page of 0 The Supreme Court has repeatedly reaffirmed Tennessee Valley Authority. E.g., United States v. Oakland Cannabis Buyers Coop., U.S., - (0) ( Congress order of priorities, as expressed in the [ESA], would be deprived of effect if the District Court could choose to deny injunctive relief. ); Amoco Prod. Co. v. Vill. of Gambell, 0 U.S., n. () (ESA foreclosed the traditional discretion possessed by an equity court ); Weinberger v. Romero-Barcelo, U.S. 0, - () ( Refusal to enjoin the action [at issue in Tennessee Valley Authority] would have ignored the explicit provisions of the [ESA]. ). VII. ARGUMENT. A. The Court Should Provide Relief from and/or Reconsider the Dismissal Order. The Court has determined that the claim asserted against the Elwha Defendants is moot. Dkt.. However, until a final judgment is entered, the Elwha Defendants remain parties and the claim is not terminated. See FED. R. CIV. P. (b). Until such time, the Dismissal Order may be revised at any time before entry of a judgment adjudicating all the claims and all the parties rights and liabilities. Id. (emphasis added). The Court therefore has jurisdiction over Plaintiffs request for a preliminary injunction. To the extent necessary to award the preliminary injunction requested herein, Plaintiffs request that the Court provide relief from the Dismissal Order under Rule 0(b)() and/or reconsider the order under Local Civil Rule (h). Such relief is appropriate because Plaintiffs will otherwise be injured and because matters beyond Plaintiffs control have necessitated such relief. See Harvest, F.d at. First, Plaintiffs did not have an opportunity to thoroughly review the Limit Approval and its supporting documents or the administrative record upon which these documents are based before the Court entered the Dismissal Order or within the reconsideration deadline. The Elwha PRELIMINARY INJUNCTION - East John Street () 0-

16 Case :-cv-00-bhs Document 0 Filed 0// Page of 0 Defendants filed their motion to dismiss only seven days after NMFS produced the voluminous Limit Approval and related documents. See Dkt. ; and Dkt.. The record was submitted around April, two months after the Dismissal Order. See Dkt. ; and Dkt.. Second, Plaintiffs anticipated that a judgment would be entered in this matter with sufficient time to seek an injunction related to the spring hatchery releases. Plaintiffs cannot seek an injunction pending appeal under Rule (c) and, if warranted, under Federal Rule of Appellate Procedure, because a final judgment has yet to be entered. Plaintiffs therefore seek relief under Rule 0(b)() and/or Local Rule (h) to obtain a preliminary injunction that will prevent or minimize the irreparable injury threatened by the impending spring hatchery releases. Relief from the Dismissal Order is warranted because it constitutes error. The order indicates that issuance of an exemption from ESA section liability generally moots a claim alleging unlawful take. See Dkt., :-:. However, the (d) Rule unequivocally states that exemptions issued thereunder provide only an affirmative defense that the defendant must both plead and prove. 0 C.F.R..(c); and see U.S.C. (g) (the ESA includes similar requirements for other exemptions). The Elwha Defendants have not pled this defense and therefore cannot benefit from it. The Elwha Defendants also have not proven compliance with the Limit Approval or any other exemptions, such as the incidental take statement ( ITS ) issued with the NMFS December 0, BiOp. Rather, the Elwha Defendants submitted a declaration that should not be considered because it was submitted on reply that asserted in exceedingly vague terms that the hatchery is operating in compliance with the HGMPs. See Dkt.,. Submission of these materials for the first time on reply warrants relief from the Dismissal Order. See Bryant v. City of Goodyear, No. CV--00-PHX-JAT, U.S. Dist. LEXIS 0, *- (D. Ariz. Aug., ). Moreover, the HGMPs are not the approval PRELIMINARY INJUNCTION - East John Street () 0-

17 Case :-cv-00-bhs Document 0 Filed 0// Page of 0 documents and compliance with only the HGMPs does not provide a defense. The Elwha Defendants have not provided any evidence indicating that they are in compliance with the implementation terms of the actual approval documents the Limit Approval and the ITS. See Dkt. -, pp. -; and NMFS00-. The Dismissal Order further indicates that Plaintiffs are required to provide pre-suit notice of violations of the Limit Approval. See Dkt., :-:. However, controlling precedent holds that subject matter jurisdiction is established by providing notice that is adequate when issued and that a plaintiff is not required to provide additional notice to address subsequent compliance efforts. Waterkeeper N. Cal. v. A.G. Indus. Mfg., Inc., F.d, (th Cir. 0); Natural Res. Def. Council v. Sw. Marine, Inc., F.d, (th Cir. 00). Plaintiffs are not required to provide notice related to plans that were not even in existence when their notice was issued. See Waterkeeper, F.d at. As the District of Oregon held: The [hatchery operator] has the burden of raising and proving that [its] actions are allowed by the HGMPs in response to the allegations of take. To find that plaintiffs notice letter and presently plead claims were mooted by the approval of the HGMPs would turn the ESA s statutory and regulatory framework on its head. Native Fish Soc y v. Nat l Marine Fisheries Serv., No. :-CV-00-HA, U.S. Dist. LEXIS 0, at * (D. Or. May, ). These same reasons discussed in this section justify relief under Rule (b) and Local Civil Rule (j) from the fourteen day deadline for motions for reconsideration. Specifically, Plaintiffs did not have the opportunity to review the Limit Approval and its supporting documents or the administrative record within that deadline. Plaintiffs also recognize that In accordance with Local Civil Rule (j), counsel for Plaintiffs conferred with counsel for the Elwha Defendants and the Federal Defendants regarding the requested relief from a deadline via a telephone conference held January,, both of whom indicated that their clients oppose the requested relief. PRELIMINARY INJUNCTION - East John Street () 0-

18 Case :-cv-00-bhs Document 0 Filed 0// Page of 0 motions for reconsideration are disfavored and therefore did not immediately seek such relief. See LCR (h)(). However, Plaintiffs anticipated that a final judgment would be entered such that they would be able to seek injunctive relief under Rule (c) and Federal Rule of Appellate Procedure before the spring hatchery releases. B. Plaintiffs are Likely to Succeed on the Merits. Plaintiffs are likely to succeed on their claim against the Elwha Defendants. The Limit Approval and its supporting documents are not in accordance with law and therefore must be set aside under the APA, leaving the Elwha Defendants without any ESA authorization. Further, even if those documents are not set aside, the Elwha Defendants cannot prove compliance with all of the requirements necessary to claim an exemption from ESA section liability. Plaintiffs summary judgment motion describes the deficiencies of the NMFS December 0, BiOp and the EA. Dkt., :-:0. Plaintiffs do not repeat that discussion but instead incorporate it with this reference. See also Native Fish Soc y v. Nat l Marine Fisheries Serv., No. :-CV-00-HA, U.S. Dist. LEXIS 0, at *- (D. Or. Jan., ) (finding that NMFS approval of HGMPs violated NEPA and the ESA for reasons similar to those asserted by Plaintiffs here). These documents are not in accordance with law and therefore must be set aside. See U.S.C. 0()(A). The Limit Approval should be invalidated because the documents evaluating it under NEPA and section of the ESA are unlawful. See Klamath Siskiyou Wildlands Ctr. v. Boody, F.d, (th Cir. 0) (actions undertaken in violation of NEPA are invalid). Accordingly, there is no valid ESA section exemption for the hatchery operations and it is PRELIMINARY INJUNCTION - East John Street () 0-

19 Case :-cv-00-bhs Document 0 Filed 0// Page of 0 beyond dispute that those hatchery programs cause take of ESA-listed salmonids. individuals, even when such take results from significant habitat modifications. Dkt. 0, 0:-. East John Street PRELIMINARY INJUNCTION - () 0- E.g., Dkt.,,, ; Dkt.,, ; NMFS00-; NMFS0-. Plaintiffs are therefore likely to succeed on the ESA section claim against the Elwha Defendants. Plaintiffs are likely to succeed even if the Limit Approval and its supporting documents are not vacated. The Limit Approval and the ITS include numerous requirements. See Dkt. -, pp. -; and NMFS00-. The Elwha Defendants must plead and prove compliance with all of these requirements in order to be exempt from ESA section liability. See 0 C.F.R..(c); and see U.S.C. (g). The Elwha Defendants cannot meet that burden. For example, one implementation term requires that the Elwha Defendants: Monitor the abundance, diversity, spatial structure, and productivity status of Elwha River Chinook salmon and steelhead populations relative to population viability parameter triggers identified in the Monitoring and Adaptive Management Plan [( MAMP )] for the Elwha Restoration Project (EMG ) for each restoration phase to guide decisions regarding transition between the preservation, recolonization, and local adaptation phases of fish restoration, and responsive adjustment or phase out of supportive breeding actions for the listed species. Dkt. -, p.. Available evidence indicates that the Elwha Defendants cannot comply with these requirements. Notably, no long-term funding is established for these [monitoring and Plaintiffs have also previously established standing to bring this lawsuit. See Dkt., :-: (and declarations cited therein); and Dkt., :- (and declarations cited therein). Plaintiffs do not repeat those discussions but instead incorporated them herein with this reference. NMFS could not have issued the ITS unless the programs cause take. See Ariz. Cattle Growers Ass n v. U.S. Fish & Wildlife, F.d, 0- (th Cir. 0). In denying Plaintiffs first motion for partial summary judgment, the Court believed that Plaintiffs made a new argument on reply which the Court refused to consider. Dkt., :-. Specifically, the Court understood that Plaintiffs contention in its motion that the hatcheries cause take through significant habitat modifications differed from its explanation on reply that the ESA prohibits take of individuals. Id. These are not different arguments. Rather, the Elwha Defendants argued in their response that significant habitat modifications only constitute take if fish are killed or harmed on a population level in other words, the Elwha Defendants contend that significant habitat modifications that kill or harm only individual fish do not violated section of the ESA. See Dkt., :-. Plaintiffs reply did not raise a new argument, but simply attempted to explain that the ESA prohibits take of

20 Case :-cv-00-bhs Document 0 Filed 0// Page of 0 evaluation] needs. NMFS00. A total of $. million is needed to implement the MAMP over ten years, and the most basic monitoring and adaptive management activities would cost $,000 to $ million per year. NMFS0-0. The total funding available for these vital activities is $0,000. NMFS0; see also NMFS0 (Elwha Defendants steelhead HGMP admits insufficient staffing and funding). Plaintiffs are therefore likely to succeed on the merits of their claim because the Elwha Defendants will not be able to prove compliance with the numerous requirements necessary to be exempt from liability under section of the ESA. C. Irreparable Injury is Likely in the Absence of a Preliminary Injunction. Congress enacted a policy of institutionalized caution in the ESA intended to protect species. Tenn. Valley Auth., U.S. at. To fulfill this legislative mandate, the remedy for a substantial procedural violation of the ESA a violation that is not technical or de minimis must be an injunction of the project pending compliance with the ESA. Wash. Toxics Coalition, F.d at 0, 0- (affirming injunction pending ESA compliance); see also Biodiversity Legal Found. v. Badgley, 0 F.d, - (th Cir. 0) (ESA violation compelled the court to grant injunctive relief ); and Pac. Rivers Council v. Thomas, 0 F.d 00, 0- (th Cir. ) (enjoining activities that may affect protected fish pending ESA compliance); and Marsh, F.d at -, (plaintiff is entitled to injunctive relief if the [defendant] violated a substantive or procedural provision of the ESA ). Accordingly, an injunction should be issued upon a showing that there is a likelihood of future harm to an animal protected under the ESA. Nat l Wildlife Fed n v. Burlington N. R.R., This amount of funding would not provide any information regarding the mechanisms [that] influence restoration. Thus, if restoration does not progress, managers would lack much of the information to understand why. NMFS00. Even if funding for this most basic monitoring were available, it would be insufficient to comply with the Limit Approval s monitoring requirements quoted above. PRELIMINARY INJUNCTION - East John Street () 0-

21 Case :-cv-00-bhs Document 0 Filed 0// Page of 0 Inc., F.d 0, (th Cir. ); Marbled Murrelet v. Pac. Lumber Co., F.d 00, 0 (th Cir.) ( A reasonably certain threat of imminent harm to a protected species is sufficient for issuance of an injunction under section of the ESA ); Defenders of Wildlife v. Bernal, F.d, (th Cir. ) (disrupting the normal behavioral patterns of a single pygmy-owl would constitute take requiring an injunction); Forest Conservation Council v. Rosboro Lumber Co., 0 F.d, - (th Cir. ) (significantly impairing the essential behavioral patterns of a single pair of protected owls constituted harm requiring an injunction). Under these standards, an injunction should be entered because it is beyond dispute that the hatchery releases and broodstock collection activities addressed herein will cause take of ESA-listed salmonids. See, e.g., Dkt.,,, ; Dkt.,, ; NMFS00-; NMFS0-. An injunction should be entered prohibiting these activities until the Elwha Defendants are able to plead and prove compliance with a lawful ESA section exemption one that is issued with complete ESA and NEPA compliance and that is not hastily prepared ten years late in an effort to provide new defenses in the middle of litigation. Further, although an injunction is required under the ESA for much less, the harm that will be inflicted by the challenged hatchery activities will be severe and lasting. Such harm will not be limited to individual fish or to the Elwha River salmonid populations, but rather will extend to the Puget Sound-wide ESA-listed species. Dr. Gordon Luikart explains that [t]he harmful effects on the fitness of wild spawning steelhead caused by the hatchery programs are highly likely to cause significant impairment to the fitness of the Elwha River wild winter-run steelhead population and thereby to the Puget Sound steelhead [distinct population segment ( DPS )]. Dkt.. Any introgression of maladaptive genes from hatchery fish into the wild fish population will likely have long-lasting PRELIMINARY INJUNCTION - East John Street () 0-

22 Case :-cv-00-bhs Document 0 Filed 0// Page of 0 adverse effects on that population and its ability to fully recover. Id. at ; see also NMFS00-. Dr. Luikart further finds that the steelhead broodstock collection activities will interfere with the spawning success of wild steelhead, and that such reductions will harm the depressed Elwha River steelhead population. Dkt.,. Dr. Jack Stanford addresses ecological interactions and finds that the releases of hatchery steelhead and coho salmon will most likely cause severe and long lasting harm to the Elwha River winter-run steelhead and Chinook salmon populations. Dkt., -,, -; and see NMFS00-. The wild populations of steelhead and Chinook salmon are currently severely depressed, and any harm inflicted on individual fish can therefore be significant to the population. Dkt.,. The hatchery releases will most likely hinder, and may even prevent, the full recovery of wild native steelhead and Chinook salmon. Id. at,. The size and pristine condition of the Elwha River watershed provide the largest potential population size for winter steelhead of all the rivers entering the Strait of Juan de Fuca. This watershed constitutes a unique component of the geographic and evolutionary diversity of the Puget Sound steelhead DPS. Dkt.,. Recovery of the Elwha River steelhead population is essential to the recovery of the entire ESA-listed Puget Sound steelhead DPS. Id.; and see NMFS0. Harm posed by the hatchery programs therefore constitutes significant harm to this listed species. Dkt.,,. Similar principles apply to the harm posed to the Elwha River Chinook salmon population and the ESA-listed segment to which it belongs the Puget Sound Chinook salmon ESU. Id. at ; and see NMFS0; and NMFS0. D. The Balance of Harms and Public Interest Favor a Preliminary Injunction. The legislative mandates of the ESA preclude traditional equitable balancing. E.g.., Nat l Wildlife Fed n, F.d at -; and Wash. Toxics Coalition, F.d at 0. Nonetheless, PRELIMINARY INJUNCTION - East John Street () 0-

23 Case :-cv-00-bhs Document 0 Filed 0// Page of 0 these factors weigh in favor of an injunction. See Amoco Prod. Co., 0 U.S. at ( balance of harms will usually favor the issuance of an injunction to protect the environment ); and Kootenai Tribe of Idaho v. Veneman, F.d 0, (th Cir. 0) (preserving the precious, unreplenishable resources of our natural environment promotes the public interest), overruled on other grounds, 0 F.d (th Cir. ). Implementation of the massive hatchery programs in Elwha River represents a tragic lost opportunity. The Elwha River Restoration Project is the largest dam removal and salmon restoration project in United States history, costing tax payers approximately $ million. This project offers a unique chance to fully restore anadromous fish populations to a largely pristine ecosystem, while also gaining knowledge about how large river systems respond to dam removal that will help guide future policy decisions for other rivers. As the HSRG noted: Removal of the Elwha and Glines Canyon dams offers a unique opportunity to learn about watershed restoration processes. Suppose, for example, that spontaneous colonization is very rapid and efficient (which some scientists argue to be the case). If we fail to recognize and understand this, not only will we delay success by employing ineffective strategies, we also will have wasted valuable financial resources in the process. In other words, when we fail and learn nothing from it, there is a double loss to society. Dkt. -, p.. The hatchery programs threatened to realize the societal losses prophesied by the HSRG. These excessive programs prioritize expedited commercial harvests over attainment of the Elwha River s full restoration potential. Equal troubling is that officials and the public will be ignorant of the cause of the lackluster recovery because of inadequate monitoring and evaluation. See NMFS00-; and see NMFS00; and NMFS0-0. E. The Requested Scope of the Injunction is Appropriately Tailored. Injunctive relief must be appropriately tailored to remedy the specific harm alleged. Park Vill. Apartment Tenants Ass n v. Mortimer Howard Trust, F.d 0, 0 (th Cir. ). PRELIMINARY INJUNCTION - East John Street () 0-

24 Case :-cv-00-bhs Document 0 Filed 0// Page of 0 Plaintiffs requested injunction is appropriately tailored to address the ESA violations at issue and the likely irreparable harm expected to result therefrom. The releases of steelhead and coho salmon and the steelhead broodstock collection activities will cause illegal take of threatened salmonids. Dkt.,,, ; Dkt., -,. These activities will harm the Elwha River wild steelhead and Chinook salmon populations and their ability to fully recover, and thereby also harm the ESA-listed segments to which those populations belong. Dkt., -,, ; Dkt.,,,,. Accordingly, these unlawful activities should be enjoined. Releases of hatchery fish are not necessary to prevent extirpation during dam removal. Dkt.,, ; and see NMFS00; and NMFS000. To the extent any risk of extirpation is present, annual releases of 0,000 steelhead smolts and 0,000 coho smolts would ensure against such risk while reducing harm to threatened salmonids. Dkt., ; Dkt.,. The steelhead broodstock collection activities are not necessary because the captive rearing program continues to provide broodstock. See Dkt.,, ; NMFS0. F. No Bond, or a Nominal Bond, is Appropriate. The Court has discretion in determining whether a bond should be required for a preliminary injunction and, if so, the appropriate amount. Barahona-Gomez v. Reno, F.d, (th Cir. ); Van De Kamp v. Tahoe Reg l Planning Agency, F.d, (th Cir. ). No bond, or only a nominal bond, is appropriate in this case. Waiver of the bond requirement, or imposition of a very minimal bond, is favored where non-profit organizations bring suit in the public interest to protect the environment. For example, in Van De Kamp, the Ninth Circuit affirmed a bond waiver and found that courts should not allow a bond requirement to effectively deny access to judicial review; rather, special PRELIMINARY INJUNCTION - East John Street () 0-

25 Case :-cv-00-bhs Document 0 Filed 0// Page of 0 precautions must be taken to ensure access to the courts for citizens and non-profit organizations where Congress has provided for private enforcement of a statute, like it has for the ESA. See F.d at -. These principles have been repeatedly applied in cases where, as here, non-profit organizations seek to enforce public rights through citizen suits. 0 No bond, or a nominal bond, is appropriate here under these considerations. Plaintiffs are non-profit organizations seeking to enforce public rights provided by Congress in the ESA citizen suit provision, and have no financial stake in this litigation. Dkt., -, ; Dkt.,, 0; Dkt.,,, ; Dkt.,,. Plaintiffs have limited funds, most of which are restricted to specific environmental restoration, research, or similar projects. Dkt., ; Dkt., -; Dkt., ; Dkt.,. A substantial bond requirement would effectively deny Plaintiffs access to judicial review and have a chilling effect on future efforts to vindicate public rights. Dkt., -; Dkt., -; Dkt., ; Dkt.,. VIII. CONCLUSION. For the foregoing reasons, Plaintiffs respectfully request the Court issue a preliminary injunction against the Elwha Defendants as specified herein. The Ninth Circuit had previously ruled that litigation in the public interest is an important consideration favoring a minimal, or no, bond. Friends of the Earth v. Brinegar, F.d, (th Cir. ). 00 See, e.g., Rosemere Neighborhood Ass n v. Clark County, No. -CV--RBL, U.S. Dist. LEXIS, at *- (W.D. Wash. April, ) (bond requirement waived); Ctr. for Food Safety v. Vilsack, F.Supp.d 0, 0- (N.D. Cal. 0) (same); Or. Natural Desert Ass n v. Kimbell, No. 0--HA, 0 U.S. Dist. LEXIS 0, at * (D. Or. June, 0) (same); Save Strawberry Canyon v. Dep t of Energy, F.Supp.d, 0- (N.D. Cal. 0) (requiring no bond); Cal. Native Plant Soc y v. U.S. Envtl. Prot. Agency, No. C0-00 MJJ, 0 U.S. Dist. LEXIS 0, at *, (N.D. Cal. July 0, 0) (same). East John Street PRELIMINARY INJUNCTION - () 0-

26 Case :-cv-00-bhs Document 0 Filed 0// Page of 0 RESPECTFULLY SUBMITTED this rd day of January,. PRELIMINARY INJUNCTION - By: s/ Brian A. Knutsen Brian A. Knutsen, WSBA # 0 Richard A. Smith, WSBA # Claire E. Tonry, WSBA # Elizabeth H. Zultoski, WSBA # Smith & Lowney, PLLC East John St., Seattle, WA Tel: () 0-; Fax: () 0- briank@igc.org; rasmithwa@igc.org; clairet@igc.org; elizabethz@igc.org Attorneys for Plaintiffs Wild Fish Conservancy, Wild Steelhead Coalition, Federation of Fly Fishers Steelhead Committee, and Wild Salmon Rivers d/b/a Conservation Angler East John Street () 0-