good morning your honors my name is ellen durkee counsel for the federal defendants my intention today is to reserve three minutes for mr morgan and five minutes for rebuttal we are here today of course on a a motion for injunctive relief under the endangered species act the district court committed legal errors and abused its discretion in granting plaintiffs requests for an interim injunction required increase spring still spell and earlier monitoring during the final year of implementation of a ten year biological opinion that assists substantially improved conditions for salmon injunctive relief is an extraordinary remedy not available as a matter of right whenever a court finds a legal violation and overlaying this precept and the requirements for injunctive relief is the administrative procedure act and a bedrock principle and the administrative procedures act is that of course proper role is not to take control of administrative programs or conduct experiments just because the court thinks it might yield useful information or be better so today i'd like to start with and focus on the merits of the injunction but of course there is a you know threshold rule sixty b issue that if time allows i'll come back to if you have questions of course i would be happy to answer those harm the district court said the limited duration of an interim injunction is not relevant and that any magnitude of harm is sufficient for an injunction and in both respects that is wrong as a matter of law is it is absolutely relevant that this is an injunction only for an interim period and really just this one season before the court required a new biological opinion that will address the you deficiencies of the court found your biological opinion in that respect that is akin to like a planetary injunction hearing in terms of the duration where the court's asking is there going to be irreparable harm during the time period in which the legal proceedings will will be over and then the other the any magnitude is really getting that the that to the next point i wanted to make is that the court really made a perfunctory analysis and just a conclusion relied on very conclusory statements to find irreparable harm the court did not go you have to place that statement in context of the entire litigation yes and i  think that's what we would welcome can you do this is just as a summary conclusion statement well because i mean there was a basis for well what we had what we can say is the court didn't look at the current record what the court that the basis of at that the court said all were related back to almost decades ago and if the court had done what we think is required under winter and under will sixty five which is the court can't simply say oh your reason one person alternative in two thousand was found to jeopardize therefore you know there's jeopardy from operation that they have meaning in the  supreme court case of when or what the court said is the court the best record in that case by only assessing the initial proposal of the agency rather than assessing the proposal with the mitigation conditions that have been added to it r sixty five that you know also requires district courts to make findings as to the reasons for finding irreparable harm the underlying thing and part of the what what is difficult about what the court did here is that it never makes any reference to the record as it exists now and it never sort of it never considers this a you know the significant improvement in juvenile survival under the you know the current operations the third point i want to make has to do with deference i recognize in the two thousand and five decision this court said well there's nothing to give deference to this case i think it's very different in that respect and specifically that what the court has ordered here does not relate sufficiently to the violations that it found in the biological opinion and on the issues that are most relevant to this injunction it ruled in favor of the federal defendants specifically one of the oregon raised as a challenge to the biological opinion the national range fishery services discussion of late and mortality and its decision not to do what the district court has now ordered it to do and the discussion is in the two thousand  did not think do any large scale change in operations based on the evidence that we had the very same evidence that there were in data and hypothesis there were zero on now and instead it suggested that of experiment that has certain elements and to it should be that you should work on devising that and that it should be considered in the context of developing the two thousand and eighteen bio among those elements that said it should go through e s a consultation it should have elements of a rigorous scientific test it should be reviewed by an independent scientific advisory board org and then did you know take its proposal to do you know spill to the gas cap and all the dams and then the independent scientific advisory board said the same thing they said you know we really can't tell from this data whether it's going to have any benefit or not it may it may not it's a correlate of relationship but that's not causation and you know i said the courts were of his court of relationships but like one of the famous one was in the one nine hundred fifty s when scientists said there's a correlation between eating ice cream and polio infection rates and they recommended that people not need ice cream and so there's a big drop of ice from what turned out that the correlation was because they were both associated with warm weather exposure rates higher more weather ice cream  you know these there's possible is for false correlations and there's all sorts of other reasons that could be for this correlation so rather then doing than what the core is orders exactly so what oregon proposed which is let's just do it let's not design you know let's not have a control group in and so on and that's very troubling and the court in looking at the late hypothesis in the district court opinion said we you know that it's too uncertain the they said the court said the service there's no consensus in the scientific community on this so deferred to this court correctly i mean to the agency on that then it just flipped around and biology you know scientific opinion evidence is exactly what they said it wasn't before so there's the science that there's just some inconsistency the other piece of the district court summary judgment decision is its findings on the substantial improvements in juvenile survival both and and this is you know and there were at the rather dramatic the you know in the two thousand and five decision this court you know talked about the specific species that would be affected by the spill which of course is lacking in this decision and it pointed out that at that time only seventeen percent of survive now that's not the species of concern here but i would point out that it's doing much better better but the spring species they are the survival rates under the biological opinion implementation of been you know in the fifty to sixty percent range so to just sort of lump it all as we've decided this before no reason there's nothing to inquire and here we think this is fundamentally wrong and i'm  good morning may please the court jason morgan on behalf of intervener defendant northwest river partners mr q talk about several reasons some problems with the injunction order i want to focus in on one of them which is specifically  the failure of a district court to make a finding that the plaintiffs themselves will be irreparably harmed absent an injunction that the core purpose of injunctive relief as an equable remedy is to prevent irreparabl injury to the applicant and that's a bedrock requirement of any injunction and that finding is just not in the injunction order there is no finding that the plaintiffs themselves will be irreparably injured it's not there the closest the court columns is page twelve of the order footnote seven where the when the court says well i found that the species are affected and the plants are showing that that will affect them but it will affect finding isn't a substitute for the required finding that the plaintiffs themselves will be irreparably harmed and and this isn't just a technical oversight here that is this is this from it flows from for the problems of what happened here that the district court here did not did not look at a situation where it needed to prevent irreparable harm from occurring look at the situation with a plane just presented with an injunction that said hey this we think this may make things better in a district court said well this is worth trying but that's not the same that's not the role of the district court to court rule of not to interject itself into the agency decision making process or start making scientific determinations about which alternative might or might not be better or which experiments are worth trying its goal in the injunction its role in the injunction contacts it's a preventable harm and  the injunction the injunction has to target harms that flow from the conduct that isn't joint that's how injunctions work here we're talking about an injunction that deals with this passage flow prudent alternative put in place and it's been a geisha measures that the sum result of that was it was not going to adversely modify or destroy critical habitat including fish passage so there isn't pending irreparable harm from that from the status quo and we know that and then one of the best ways to tell whether a plaintiff is irreparably harmed is how quickly they move for relief well not very quick here we are nine years into a ten year biological opinion and if there was a rebel harm occurring from this biological opinion and this bill injunction with this solution for that why did they wait more than eight years to ask for that relief and even somewhat more ironically as the here trying to affirm an injunction order to give them relief from the status quo they're also back in the district court as you saw in the twenty eight jail letter submitted by a fellow defendant there back in the district court saying whatever you do don't let them change the biological opinion leave it in place through twenty twenty one so those two things don't really work together you can't claim your record be harmed by the status quo under the biological pain that's been in place for nine years while asking just a court to leave in place for another three those two things simply don't work so just simply put this isn't the situation the court was presented with in two thousand and five where there was no spill occurring and virtually no that happened in the past and i think i think the answer is in some sense yes we have to disregard holdings that were made based on outdated versions of the law on the thomas versus peterson standard yeah we have to we do have to figure that but the record is different court i'm todd true representing the national wildlife federation of plaintiffs i'll be splitting my time this morning with counsel for the state of oregon i'll take ten minutes to address two issues whether the district court abused its discretion in finding a likelihood of irreparable harm and whether to be used its discretion in finding that increased voluntary spring spill up to the level allowed by state water quality standards would reduce that harm counsel for will take ten minutes to address two additional issues whether the steps the district court took to ensure a narrowly tailored injunction or an abuse of discretion and whether rule sixty b bars are motions altogether to court has questions on that issue may turn to the issue or reparable harm with this court's decision and cottonwoods sets the standards and provides guidance and in fact in that decision the court cites the two thousand and eleven injunction decision in this case to illustrate the point that where the e s a has been violated as it has here it should not be an onerous task to show harm to protect the species and in addition this court's decision in two thousand and five affirming a prior injunction also provides guidance here so let me turn now to the district court's new injunction decision in two thousand and seventeen because it tracks those two decisions closely it doesn't simply rely on the fact that the species is listed and it doesn't simply adopt the earlier findings and stop we cite many of the district court's findings of harm on page twenty two of our brief and the injunction order itself addresses harm specifically pages eleven to thirteen and fifteen to eighteen among the relevant findings many of which do refer back to the court summary judgment decision which perfectly appropriate is that the predicted survival improvements for salmon from the two thousand and fourteen biopsy have not materialized that's one eighty four fifth thirty eight ninety two ninety three and again at nine o three to nine o eight this is especially relevant as a finding because the salmon here start from being in jeopardy that is the two thousand and eight by up finds operation of the damsel cause jeopardy the r p is supposed to avoid jeopardy the r p a failed and in fact the benefits did not materialize this court in its first decision for twenty two hundred thirty seven ninety five relied on parallel finding of a failure of benefits to appear to support its prior injunction and in fact it's worth pointing out here that the district court summary judgment order doesn't find that the biological opinion kind of was a little bit soft around the edges it is a link the opinion that goes to the core of that biological opinion and its analysis and the point is that r p a failed and the benefits didn't survive similarly the court found a district court has in the past that dam operations are a major source of mortality for juvenile salmon that's at page twelve of the injunction order and this court pointed out in its prior injunction motion the same thing and that's beyond dispute that's again at page seven ninety five or twenty two that there the defendants try to reject that point by arguing that as long as river conditions are a little bit better today than they were yesterday there can be no irreparable harm and that position sort of a glass half empty problem it has as a glass half empty problem their view is as long as we add a little bit of water to the glass and there's more in there today than there was yesterday it doesn't matter how much is left to feel it doesn't matter how much ongoing harm there is you can't get an injunction and that approach would basically put injunctive relief out of reach in most e s a cases as long as the government did a little something to help the species it's a recipe for a death by a thousand cuts approach it is not the injunction standard set in cottonwood it's not the injunction standard this court applied in two thousand and eleven the district court it's not the standard this court applied for twenty two third and the district court went on to talk about the actual impacts of damn operations now today on juvenile salmon that's in the injunction order at page fifteen to eighteen and it discuss there the findings of the comparative survival study that's a comprehensive federal state tribal scientific analysis the results of that study as they relate to dam operations are discussed extensively in the declaration of mr bowles that's our e r starting at age five thirty five and then his reply declaration at one seventy seven and what he explains is that continued dam operations under the two thousand and fourteen buy up will force more juvenile salmon to use powerhouse systems to get past the dams rather than pass through spill and that that will increase mortality that's irreparable harm that's at five fifty three to five fifty seven the district court's findings of irreparable harm are well supported they are specific they don't just rely on the past although the past is certainly a guide here and there was no abuse of discretion let me turn to two other issues that have come up first let me talk for a minute about the idea of injury that has to occur during the remained in fact there is injury during the remained here this spring when juvenile salmon migrate down the river under the two thousand and fourteen by up if they did not have the spill injunction the court has put in place more of them would die about fifty percent die coming down the river past the dams each year and the current injunction that increases spill which is the safest way to get these salmon passed the dams will mitigate that mortality that is reducing irreparable harm that is a classically appropriate form of injunctive relief the court doesn't have to eliminate the harm and in fact in its four twenty two opinion this court noted that the court faces a situation here where there's ongoing operations and it's it's choices are somewhat limited and the best thing it can do is take steps that will reduce the harm in this bill injunction will do that so the current impacts of the the district court expressed some uncertainty about how much benefit would be derived i don't think the district court expressed so much uncertainty about whether there would be benefits from increased bill or how much right there is evidence in the record of how much the court didn't cite it i don't think the court needed to have a precise number to conclude that it would provide  n just as defined with an adequate factual or record that there would be benefit and there is yes and that it would reduce the irreparable harm i don't think i can't think of a case where an injunction failed because the district court couldn't determine whether there would whether the harm would be mitigated by ten percent or twenty percent if the harm can be mitigated by a step that can be implemented and especially in a situation like we have here where the species is in jeopardy if the measures to protect it have failed then that's an appropriate situation for an injunction under cottonwood if you go back in fact your honor look at the south y decision that the court cited in the cottonwood along with the distance decision the court there wasn't saying i know the precise numeric magnitude of improvement that's going to happen if i implement these measures it said i can see that there will be some benefit here but i also think the record here and it's in the declaration of mr bowles does give you that information the c s s study that mr bowles cites extensively and discusses basically it says the difference between spill under the two thousand and fourteen by up and spill under with the increase in spill that will reduce by about a third the number of years when we get returns that are that are below the level needed for survival and it will increase by about half the number of years when we get returns that are at least at the bare minimum level needed for survival that's very concrete evidence that's a very extensive study many years it is not a hypothesis it's based on data year after year after year showing that juvenile salmon survive better if they pass dams by spill so this is not in any sense and experiment what the district court did is find that spill to the spill cap levels would reduce harm period and no actually agrees with that and again mr bowles cites in his declaration the long history of no saying that spill cap spill is not harmful to salmon and that spill is better for salmon in fact in one of the declarations no as mr graves says i wholeheartedly agree with mr bowles that more spill is better for salmon so that the idea that this is some kind of make it up experiment is wrong where the word experiment comes up is in a different context where oregon had proposed spill at a higher level one hundred twenty five percent is the actual number above the spill cap levels and one of the scientific boards said we need to look at that a little further before we implement it but the spill that we're talking about at or below spill caps has been recognized as as beneficial to salmon there's that's not a that's not an experiment in let me let me  add that we have the history from this case we have in two thousand and eleven and the judge read in observing that actually the spill that i ordered before has actually improved survival what we're talking about here is are are we limited to the reduction in harm that judge redon ordered which by the way is this court noted the agency's objected to as an experiment when it was put forward back in two thousand and five are you limited to that or can the court take an additional step and provide further protection for the salmon particularly where as here the measures in the biological opinion the r p a that were supposed to protect the salmon don't comply with the law and the benefits from those measures haven't appeared so in some i think the court's findings are arm are well supported in the record detailed and careful the court had a technical advisor that helped it understand all of these issues and increased springs bill will reduce the harm the species would otherwise face while the agencies are going about complying with the law something they have failed to do for quite some time here i'm going to turn over the rest of the time to my colleague mr whitehead thank you counsel it please the court counsel carson whitehead for the state of oregon as mr trew suggested like to talk briefly about two issues the first mean that the injunction ordered by the district tailored and the second if the court would like to hear about the rule sixty argument that the federal defendants and other defendants raise first on the narrow narrow tailoring the district court injunction is absolutely narrowly the twenty fourteen biological pinion was flawed because its analysis relied on mitigation that had uncertain benefits that were unlikely to occur or were insufficiently likely to occur because the  decline and because the biological opinion failed to adequately account for the dangers from climate change the dish will spring spill that the court ordered will remain be all of those violations  because it provides an additional survival benefit to the list species the factual record is clear as mr trew discussed that additional spill will provide a survival benefit and that's probably most closely linked to the problem with the biological opinion in how the dressed are asked the measure of recruits per spawn recruits per sponsor and that's a technical  issue that the summary judgment opinion goes into in detail but essentially increasing the spill as detailed in mr bowles declaration will increase the survival rates for the juvenile salmon and that turn associated with an increase in r s there's a correlation between those two then going to the narrow tailoring piece federal defendants argue  length that the injunction is an experiment that is somehow overstepped the district court's authority and is invaded the areas of agency expertise but it absolutely did  defendants responded that that is too soon we don't have time to up to figure out how to to increase bill operationally how to do that safely in terms of human avocation initially other unforseen consequences of additional spill and the district court took those concerns to heart and said ok i think the benefits of increased spill are in the record they're amply demonstrated but the parties need time to figure out as an operational matter how to do spill safely and correctly and in the best fashion and so the the court gave the parties a year to figure out how to do that and that was in the district court ordering an experiment to determine whether a bill would be beneficial to fish the court made that finding already in its injunction order the court was simply mindful of the operational complexities of the f c r p s and gave credence to defendant's concerns that ordering a spill  at the request of level too soon could have unintended consequences and that process is now played out in january the district court interred in order that details operations for the spring season the parties work together in a collaborative process to reach that point and so the process that the district court ordered has been successful and it's the precise sort of narrow tailoring that this court ordered the district court to do in two thousand and five and so that the court was very mindful of the need to keep this injunction narrow and it did that then briefly how i'd like to touch on the rule sixty b issue defendants argue that the request for injunctive relief is a request to modify the district court's summary judgment order and that's incorrect the summary judgment order is not a final judgment and summary judgment order did not purport to govern the issue of spring spill report to govern injunctive relief as a separate issue that organ played in its complaint had been addressed and as we detail in the briefing the parties knew that it hadn't been addressed at  its own creature but the standards of review are essentially the same as reviewing preliminary injunction and at least with a federal offense we have no dispute about the standard of review here review the factual findings  discretion it isn't it can amount to a final injunction probably ten year period remember it so so currently was only one year left right in the thousand you'd have to go back to the district court and ask for another injunction is that correct that's correct for is a relief for some for the relief this is this injunction order specifically covers the twenty eight hundred spill season only for the questions you know you might have time you're honest i'd like to respond to some of the points but i want to make sure that i the court understands why all of this manners to us there are this case is not just some academic exercise about what you know court can do the  what's the court has ordered is very different than a prohibitory injunction that says don't go forward with your you know action while you do the remained it has ordered very substantial changes in the operations with uncertain benefits from it the corps has never operated these dams in the way that they're being asked to do now they're not sure you know how this is going to go in the past they operated you know they had parameters for an amount of spill but now what they're trying to have to obtain is a water quality standard to hit right on the nose in a five hundred mile wherever it would be like taking a civilian and saying you have to have the temperature the same in every spot in this building every montreux spot but you don't have a thermostat in the house you just have to tinker with you know mechanisms and it's affected by ambient temperatures and so on it's a very complex thing they're being asked to do here and there are many many many employees behind this there that have been engaged in making the spoke plan and there will be engaged in trying to implement this has very real consequences on reordering the agencies priorities secondly the precedent of what the district court done here is very troubling to us because as we know the plaintiffs intend to have just rolling injunctions and they want to extend the time  biopic and so you know the what it is inviting is more and more district court intrusion to do operations that the you know the district court's not an expert on and if they don't go through  consultation it undermines the regional form of the judge read been encouraged to put in place and that have been generated in a very sophisticated now oregon didn't even go to the regional farms to ask for the monitoring is going straight to court and that's an invitation everyone's going to forget about the regional you know forms to discuss this just go to the district court try to get you know the operation that you prefer and finally this this whole issue of it you know the science behind it is very troubling too but night in there let me just quickly have some points that are responsive to some of the things that players counsel said it is not our position that a little bit one fish is this better today than yesterday no that's not what we have here we have substantial meaningful improvements we have metrics that no one challenge in this case that show there's a very low risk of extinction in the short term over the next twenty four years all of the concerns that the district court had with were very long term you know recovery prong orian it so there is no imminent harm here and it's we're talking about substantial improvements not one fish secondly the bend they see the benefits of not materialize what they're focusing on is a place where the district court talked about a few specific populations on a metric that you know has to do with the recovery and that the agency explained why that product of the metric went down for a few years because of the density dependence there was a lot of abundance which is good for a species that always brings out a product of any because the dependence just attend s relationship the comparative survival studies the court had already earlier said that's not the best scientific data that's you know so now it has not it's gone to being the best scientific data and certain and substantial benefits from this and i i would really implore the court to look at what all the scientists have said about that and how you could possibly say that it's not enough to have one scientist say that and frankly not what  bowles actually said is that it may increase the probability probabilities probability is not certain that's talking about you know over a long time period if you flip a coin and you know you might change the not certain benefits in the short term and finally the point about more still is always better and we've agreed with that that is not the case that's like saying you know if you have a medicine that's doing you know that's beneficial then it's always good to double the dose and that's what they're trying to do here more spell is not always better and you know the probabilities you know and that and and that's certainly what our expert said he did not you know he was explaining why this was not necessarily better so i think it's putting false words in his mouth to say did that and in terms of you know we appreciate that the court gave time to look into hydraulic patterns but when i hear complaining about the lack of ability to test for hydraulic patterns what the court did was cut off the inquiry into whether this is actually beneficial based on the comparative survival study and cutting that off is the is is part of the problem and finally there really sailor if you do it when you say whether this was beneficial you thought about this bill mixture and then in terms of narrowly tailored nearly tailored isn't just about hydraulic patterns part and parcel that and this is part of our point is you have to come up with you know how much harm is the continued operation causing for this one year versus how much benefit in the district court didn't engage in all of that and we understand you meant a big able to get it with you know exact mathematical  there is but there is there are resting on the idea and in fact i think morgan says even if it's just a little bit that's enough and we would say that's not nearly tailing it's not going to do the species as a whole injunction at the cost that this will be both in terms of of monetary cost to power and and impacts on the power system but also in terms of what the agencies are going to have to do in order to implement this problematic for us if the courts unable to to you know make a decision by prof third and we would still very much appreciate but still i decision the sooner the better for you yes or thank you all to we can thank you all for your briefing very helpful to the court and we'll be in recess