COLVILLE AMICUS CURIAE BRIEF IN SUPPORT 

OF FEDERAL DEFENDANTS’ OPPOSITION TO 

MOTION FOR PRELIMINARY INJUNCTION 

ZIONTZ CHESTNUT

2101 FOURTH AVENUE, SUITE 1230 

SEATTLE, WASHINGTON 98121 

TEL. (206) 448-1230

 THE HONORABLE MICHAEL H. SIMON 

Brian C. Gruber, WSBA # 32210 

Beth Baldwin, WSBA # 46810 

ZIONTZ CHESTNUT 

2101 Fourth Avenue, Suite 1230 

Seattle, Washington 98121 

Tel. (206) 448-1230 

Fax (206) 448-0962 

Attorneys for Amicus Curiae 

Confederated Tribes of the Colville Reservation 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

AUDUBON SOCIETY OF PORTLAND, 

WILDLIFE CENTER OF THE NORTH 

COAST, ANIMAL LEGAL DEFENSE 

FUND, CENTER FOR BIOLOGICAL 

DIVERSITY, FRIENDS OF ANIMALS, 

Plaintiffs, 

 v. 

U.S. ARMY CORPS OF ENGINEERS, 

U.S. FISH AND WILDLIFE SERVICE, 

USDA WILDLIFE SERVICES, 

Defendants, 

and 

NORTHWEST RIVERPARTNERS, 

Intervenor –

Defendant. 

Case No. 3:15-cv-00665-SI 

BRIEF OF AMICUS CURIAE

CONFEDERATED TRIBES OF THE 

COLVILE RESERVATON IN SUPPORT 

OF FEDERAL DEFENDANTS’ 

OPPOSITION TO MOTION FOR 

PRELIMINARY INJUNCTION 

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TABLE OF CONTENTS 

INTRODUCTION ....................................................................................................................................... 1 

STANDARD OF REVIEW ........................................................................................................................ 2 

ARGUMENT ............................................................................................................................................... 3 

I. Plaintiffs Fail to Demonstrate Irreparable Harm Warranting a Preliminary Injunction. ....... 3 

II. Plaintiffs Cannot Demonstrate that the Public Interest and the Balance of Equities Weigh in 

their Favor. ....................................................................................................................................... 9 

III. Plaintiffs Are Not Likely To Succeed On The Merits. ............................................................... 14 

CONCLUSION ......................................................................................................................................... 19 

TABLE OF AUTHORITIES 

Federal Court Cases

Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) ..................................................... 3 

Antoine v. Washington, 420 U.S. 194 (1975) .............................................................................................. 12 

Colville Confederated Tribes v. Walton, 647 F.2d 42 (9th Cir. 1981) ........................................................ 12 

Ctr. for Food Safety v. Vilsack, 636 F.3d 1166 (9th Cir. 2011) .............................................................. 4, 14 

Defenders of Wildlife v. Salazar, 812 F. Supp. 2d 1205 (D. Mont. 2009) ................................................ 4, 5 

Drakes Bay Oyster Co. v. Jewell, 729 F.3d 967 (9th Cir. 2013) ................................................................... 9 

Earth Island Inst. v. Carlton, No. CIV. S-09-2020 FCD, 2009 WL 9084754 (E.D. Cal. Aug. 20, 2009) 

aff’d, 626 F.3d 462 (9th Cir. 2010) ........................................................................................................... 3 

Fund for Animals v. Clark, 27 F. Supp. 2d 8 (D.D.C. 1998) ........................................................................ 4 

Fund for Animals v. Norton, 281 F. Supp. 2d 209 (D.D.C. 2003) ................................................................ 4 

Humane Soc’y of the U.S. v. Glickman, 217 F.3d 882 (D.C. Cir. 2000) ....................................................... 5 

Humane Soc’y of U.S. v. Watt, 551 F. Supp. 1310, (D.D.C. 1982), aff’d, 713 F.2d 865 (D.C. Cir. 1983) ... 6 

League of Wilderness Defenders/Blue Mts. Biodiversity Project v. Connaughton, 752 F.3d 755 (9th Cir. 

2014) ................................................................................................................................................... 9, 11 

Marbled Murrelet v. Babbitt, 83 F.3d 1068 (9th Cir.1996) ........................................................................ 10 

Mille Lacs Band of Chippewa Indians v. State of Minn., 864 F. Supp. 102 (D. Minn. 1994) aff’d sub nom. 

Mille Lacs Band v. Cnty. of Aitkin, 66 F.3d 332 (8th Cir. 1995) ............................................................ 13 

Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc) .......................................................................... 3 

Missouri v. Holland, 252 U.S. 416 (1920) .................................................................................................. 10 

Muckleshoot Indian Tribe v. Hall, 698 F. Supp. 1504 (W.D. Wash.1988)................................................. 13 

N. Dakota v. United States, 460 U.S. 300 (1983) ....................................................................................... 10 

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Nat’l Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722 (9th Cir. 2001) ............................................. 11 

Nat’l Wildlife Fed’n v. Burlington N. R.R., 23 F.3d 1508 (9th Cir. 1994) ................................................ 4, 5 

Native Songbird Care & Conservation v. LaHood, No. 13-CV-02265-JST, 2013 WL 3355657 (N.D. Cal. 

July 2, 2013) ............................................................................................................................................ 11 

Tennessee Valley Auth. v. Hill, 437 U.S. 153 (1978) ........................................................................ 6, 10, 11 

Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658 (1979) ..... 12 

Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) ........................................................... 2, 3 

Statutes and Regulations

16 U.S.C. § 1536(b)(4) ................................................................................................................................. 5 

16 U.S.C. § 701 ......................................................................................................................................... 5, 6 

16 U.S.C. § 704 ......................................................................................................................................... 5, 6 

50 C.F.R. § 21.42 .......................................................................................................................................... 5 

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Amicus curiae Confederated Tribes of the Colville Reservation (“Colville”) submits the 

following brief in support of Federal Defendants’ opposition to the Audubon Society of Portland 

et al.’s Motion for Preliminary Injunction (Dkt. 19). 

INTRODUCTION 

Near the mouth of the Columbia River, a 60-acre dredge-spoil island owned by the U.S. 

Army Corps of Engineers (Corps) hosts tens of thousands of migratory seabirds which come to 

the island to roost, build nests, mate, and bear their young for part of the year. The seabird 

colonies on East Sand Island include approximately 30,000 double-crested cormorants1 packed 

onto a guano-covered, 12-acre sand spit on the western half of the island. The unprecedented 

numbers of birds using East Sand Island are wreaking havoc on the Columbia River estuary 

ecosystem. Cormorants alone eat on average nearly 12 million juvenile salmonids annually. 

Those fish are revered by Colville and other tribes of Columbia River basin whose culture and 

subsistence revolve around salmon and gave rise to federally protected harvest rights. Federal, 

state, and tribal governments painstakingly manage Columbia basin salmon and steelhead, many 

species of which are listed as endangered or threatened under the Endangered Species Act 

(ESA). 

Far from being scapegoats as Plaintiffs allege, the cormorants are themselves a 

significant part of the problem facing interior Columbia basin salmon and steelhead species; on 

average, they remove as many juvenile salmonids from the Columbia River as a hydroelectric 

 

1 Colville will follow the convention in this case and refer to double-crested cormorants as 

“cormorants” and other species of cormorants by their specific names.

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dam. 2 The situation cries out for a solution, which the National Marine Fisheries Service 

(NMFS) has provided: reduce the number of cormorants on East Sand Island by about 35% in 

the next four years. The Corps has dutifully developed a plan to implement NMFS’ solution, 

after considering the input of nearly everyone interested in the outcome (including Plaintiffs, 

tribes, states, stakeholders and other citizens). 

Now before this Court lies the task of sifting through the many competing interests, 

harms, and arguments prompted by the Corps’ imminent implementation of the Cormorant Plan. 

As it does so, one theme easily rises to the top: the fish are endangered, and the birds are not. 

Moreover, Plaintiffs have not demonstrated that irreparable harm is likely in Year 1 of the Plan, 

the relevant time frame for this preliminary injunction motion, because the western population of 

cormorants will not come close to dipping below sustainable levels determined by the U.S. Fish 

and Wildlife Service (FWS) after a single year of implementing the plan. Under these 

circumstances, the Court should deny Plaintiffs’ request to enjoin the Corps from putting its 

cormorant plan into action as planned and proceed to the merits of this action. 

STANDARD OF REVIEW 

A preliminary injunction “is an extraordinary remedy never awarded as of right.” Winter 

v. Natural Resources Defense Council, 555 U.S. 7, 24 (2008). In each case, “courts must 

balance the competing claims of injury and must consider the effect on each party of the granting 

or withholding of the requested relief,” and “should pay particular regard for the public 

 

2 U.S. Army Corps of Engineers, Double-Crested Cormorant Management Plan to Reduce 

Predation of Juvenile Salmonids in the Columbia River Estuary (“FEIS”) at 1-24, available at

http://www.nwp.usace.army.mil/Portals/24/docs/environment/EIS/Cormorants/Final_EIS_Corm

orant_Feb2015.pdf. We refer to the management plan described by Alternative C-1 of the FEIS 

as the “Cormorant Plan” or “Plan.” 

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consequences in employing the extraordinary remedy of injunction.” Id. To prevail in their 

request for a preliminary injunction, Plaintiffs must establish that: (1) they are likely to succeed 

on the merits; (2) they are likely to suffer irreparable harm if the preliminary injunction is not 

granted; (3) the balance of equities tips in their favor; and (4) an injunction is in the public’s 

interest. Id. at 20. The Winter Court emphasized that the irreparable injury must be “likely” and 

rejected the Ninth Circuit’s test requiring only a “possibility” of such harm as “too lenient.” Id. 

at 22. Furthermore, “[n]o longer is there any presumption of such harm in an environmental 

case, nor is a showing of a mere possibility of irreparable harm sufficient.” Earth Island Inst. v. 

Carlton, No. CIV. S-09-2020 FCD, 2009 WL 9084754, at *27 (E.D. Cal. Aug. 20, 2009) aff’d, 

626 F.3d 462 (9th Cir. 2010). 

Although the Ninth Circuit has determined that its “serious questions” approach to 

preliminary injunctions survives Winter, this Court must, in addition to finding that irreparable 

injury is likely, determine that the balance of hardships tips sharply toward the plaintiff and an 

injunction would be in the public interest. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 

1127, 1131-32 (9th Cir. 2011). In other words, plaintiffs must “make a showing on all four 

prongs.” Id. at 1135 (citing Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc)). 

ARGUMENT 

I. Plaintiffs Fail to Demonstrate Irreparable Harm Warranting a Preliminary 

Injunction. 

Plaintiffs are required to establish a likelihood of irreparable harm. Winter, 555 U.S. at 

22. Where, as here, a plaintiff fails to do so, the court “need not address . . . the remaining 

elements of the preliminary injunction standard.” Ctr. for Food Safety v. Vilsack, 636 F.3d 1166, 

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1174 (9th Cir. 2011) (quoting Winter, 555 U.S. at 20). Plaintiffs cite several cases that analyzed 

whether a preliminary injunction should issue based on claims of environmental and aesthetic 

harms; however, all of those cases pre-date Winter, and at least one uses a “possibility of 

irreparable harm” standard that the Winter Court held impermissible. See Fund for Animals v. 

Norton, 281 F. Supp. 2d 209, 219 (D.D.C. 2003) (applying lesser standard of “possibility of 

irreparable injury” where plaintiff demonstrated “probable success on the merits”); see also Fund 

for Animals v. Clark, 27 F. Supp. 2d 8, 14 (D.D.C. 1998) (finding “the presence of an irreparable 

harm” and no harm to other interested parties in non-MBTA case). 

Irreparable harm, if it is to have any meaning, must be distinguished from lesser harms 

because courts are not required to grant an injunction for every violation of the law. Nat’l 

Wildlife Fed’n v. Burlington N. R.R., 23 F.3d 1508, 1511 (9th Cir. 1994). There is a dearth of 

case law interpreting this prong of the Winter test in the context of Migratory Bird Treaty Act 

(MBTA) claims.3

 However, ESA case law provides useful guidance, as courts have specifically 

determined that take of individual members of a species does not constitute irreparable harm for 

purposes of that statute which, like the MBTA, protects species or populations rather than 

individuals. See Defenders of Wildlife v. Salazar, 812 F. Supp. 2d 1205, 1209 (D. Mont. 2009). 

“To consider any taking of a listed species as irreparable harm would produce an irrational 

result” because the ESA permits take of a listed species under certain conditions; if the death of a 

single individual “constituted irreparable harm, no species could be taken before it is delisted. 

 

3

 Plaintiffs’ arguments regarding irreparable harm caused by the proposed killing of cormorants 

pursuant to the Cormorant Plan, see Prelim. Inj. Mot. at 25-28, echo their MBTA claims against 

the Federal Defendants, see Compl. ¶¶ 182-186 (Seventh Claim for Relief ) and ¶¶ 196, 197 

(Tenth Claim for Relief) (ECF No. 1); thus, we analyze their claims of irreparable harm absent 

an injunction in the context of the MBTA. 

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Such a proposition would render the operative provisions of other environmental laws useless.” 

Id. (citing 16 U.S.C. § 1536(b)(4) and Burlington Northern, 23 F.3d at 1511). In keeping with 

the ESA’s purpose to prevent endangerment and extinction of species, “the measure of 

irreparable harm is taken in relation to the health of the overall species rather than individual 

members.” Id. at 1210. 

The MBTA allows take of migratory birds where they have “become seriously injurious 

to the agricultural or other interests in any particular community.” Humane Soc’y of the U.S. v. 

Glickman, 217 F.3d 882, 885 (D.C. Cir. 2000). The statute’s purpose is “to aid in the restoration 

of such birds in those parts of the United States adapted thereto where the same have become 

scarce or extinct, and also to regulate the introduction of American or foreign birds or animals in 

localities where they have not heretofore existed.” 16 U.S.C. § 701. The MBTA delegates 

authority to the Secretary of the Interior to 

from time to time, having due regard to the zones of temperature and to the 

distribution, abundance, economic value, breeding habits, and times and lines of 

migratory flight of such birds, to determine when, to what extent, if at all, and by 

what means, it is compatible with the terms of the conventions to allow hunting, 

taking, capture, killing, possession, sale, purchase, shipment, transportation, 

carriage, or export of any such bird, or any part, nest, or egg thereof, and to adopt 

suitable regulations permitting and governing the same, in accordance with such 

determinations, which regulations shall become effective when approved by the 

President. 

16 U.S.C. § 704. Pursuant to this authority, the Department of the Interior has promulgated 

regulations allowing the killing of migratory birds that “have accumulated in such numbers in a 

particular area as to cause or about to cause serious damage to agricultural, horticultural, and fish 

cultural interests . . . .” 50 C.F.R. § 21.42. This section of the MBTA also allows take of 

migratory game birds for purely recreational purposes like sport hunting, so long as such hunts 

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are authorized by the Secretary of the Interior and are not contrary to the underlying international 

treaties and conventions that the MBTA implements. See, e.g., Humane Soc’y of U.S. v. Watt, 

551 F. Supp. 1310, 1318 (D.D.C. 1982), aff’d, 713 F.2d 865 (D.C. Cir. 1983). 

Harm to individual, or even several thousand individual, birds must be measured against 

the harms that the MBTA is meant to prevent. The purpose of the MBTA is to implement 

international treaties providing varying levels of protections to migratory birds. The statute is 

meant to “aid in the restoration of such birds in those parts of the United States adapted thereto 

where the same have become scarce or extinct . . . .” 16 U.S.C. § 701 (emphasis added). The 

statute implicitly recognizes that at times, the distribution and abundance of migratory birds may 

warrant their killing to further other public purposes. See 16 U.S.C. § 704. Unlike the ESA, 

which “shows clearly that Congress viewed the value of endangered species as ‘incalculable,’” 

Tennessee Valley Auth. v. Hill, 437 U.S. 153, 187 (1978), the MBTA provides that the value of 

migratory birds does not always outweigh the need to protect other public resources. Unlike the 

ESA, “the MBTA does not impose upon the Service a mandatory duty to prohibit the hunting of 

any species whose population, for whatever reason, is declining.” Watt, 551 F. Supp. at 1319 

(contrasting purposes of ESA and MBTA, and noting that migratory game bird at issue in case 

was not ESA-listed). Thus, the proper scale for determining irreparable harm absent an 

injunction under the MBTA is not at the individual bird level, but rather cormorants in the 

aggregate. Thus, Plaintiffs’ argument that an injunction is warranted because the individual 

cormorants killed in Year 1 of the Plan cannot be replaced must necessarily fail. 

Even assuming that immediate colony- or population-scale impacts are a better measure 

of whether Plaintiffs will be irreparably harmed, cf. FEIS at 1-37 (MBTA requires “emphasis on 

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long-term population trend of the western population of DCCOs . . . .”) (emphasis added), 

Plaintiffs still fail to make the requisite showing of likelihood of such harm. Plaintiffs claim that 

the Cormorant Plan’s 2015 “Year 1” actions will kill “a significant portion” of the cormorants 

within the both the East Sand Island colony and the western population, and that this is the “first 

step” toward decreasing the western cormorant population to a level that falls below the Plan’s 

definition of “sustainable.”4

 Prelim. Inj. Mot. at 26. However, what Plaintiffs fail to note is that 

the Year 1 actions, as outlined in Appendix E-3 to the FEIS, will have only a minimal effect on 

the overall abundance of the western population. As Plaintiffs acknowledge, the FEIS predicts 

that the western cormorant population may fall below 41,660 individuals (i.e., the “sustainable 

population” level, see FEIS at 1-37) “after implementing Phase I of the Management Plan.” 

Prelim. Inj. Mot. at 22 (citing FEIS at 4-31). However, Phase I is four years in duration. FEIS at 

2-10. After Year 1, absent an injunction, there will likely still be 57,975 cormorants in the 

western population and 22,353 remaining at East Sand Island. See FEIS at 2-42, Table 2-9. 

Plaintiffs have not argued that the population will fall below “sustainable” levels as a result of 

Year 1 actions alone. Indeed, any such assertion would be flatly contradicted by the record. 

For the reasons discussed above, any alleged harm to cormorants on a colony- or 

population-scale basis arising from Year 1 actions is not irreparable. Moreover, the FEIS 

expressly allows the Corps to reverse course after Year 1 should monitoring indicate that effects 

on the cormorant population are more than anticipated. If Year 1 actions appear to have greater 

impacts to the East Sand Island colony and the western population than assumed, the Plan calls 

 

4 Plaintiffs do not challenge the Plan’s definition of a “sustainable population” level for the 

western cormorant population.

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for the Corps and FWS to respond swiftly via adaptive management protocols to avoid an 

unexpectedly severe outcome for cormorants. FEIS at 2-7 (under adaptive management, “[t]ake 

could decrease or cease if observed abundance of the western population is lower than one 

standard deviation below predicted abundance, as this could be an indication that the East Sand 

Island colony is acting as an immigration sink . . . .”). Indeed, if the western population appears 

to be lower than 52,158 cormorants after Year 1 (which is still over 10,000 birds above the 

sustainable population level), the Corps will adapt the Plan to afford greater protection against 

further declines. See FEIS at 2-36 and 2-42, Table 2-9.5 Under these circumstances, there is no 

evidence that Year 1 actions alone will cause irreparable harm at the colony- or population-scale 

level.6 Accordingly, a preliminary injunction to preserve the status quo is not warranted because 

it is likely – should Plaintiffs prosecute the case diligently – that the merits of their claims can be 

determined before Year 2 of the Plan is implemented in 2016. 

Plaintiffs also claim irreparable harm to their aesthetic and emotional interests that 

include reduced opportunities to experience cormorants, Prelim. Inj. Mot. at 30 (citing Holmes 

Decl., ECF No. 23); feelings of sadness, id. (citing Greenwald Decl., ECF No. 21 at ¶ 9); 

feelings of distress over using tax dollars to kill cormorants, id. at 31 (citing Holmes Decl. ¶ 13); 

and diminished enjoyment of recreating in the Columbia River basin, id. (citing Greenwald Decl. 

¶ 17). Plaintiffs fail to explain how those interests rise to the level of irreparable harm required 

by Winter, when, after Year 1, there will still be 22,353 cormorants at East Sand Island (not 

 

5

 Plaintiffs repeatedly claim that the current western population of cormorants has dropped to 

less than 10% of its historic levels. See Prelim. Inj. Mot. at 22, 26. Plaintiffs provide no support 

for this assertion, and we can locate none. 

6

 Plaintiffs do not dispute that double-crested cormorants “are rather committed to East Sand 

Island and the Columbia River Estuary.” See FEIS at 3-5. 

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including those found elsewhere in the Columbia River estuary) and 57,975 cormorants in the 

western population. This leaves substantial opportunities for Plaintiffs’ members to experience, 

view and enjoy cormorants, and the Court will have sufficient time to resolve the merits of 

Plaintiffs’ case before a second year of the Plan is implemented. Furthermore, the possible harm 

to economic interests posed by one of Plaintiffs’ declarants, see Fee Decl. (ECF No. 22), is 

entirely speculative. It seems equally plausible that Year 1 actions may generate greater interest 

in the WCNC’s mission and thus increase public support through volunteer efforts and financial 

donations for the WCNC. 

None of the cases cited by Plaintiffs in their irreparable harm argument involve the 

issuance of an MBTA depredation permit to enable an agency to comply with its obligation to 

avoid jeopardizing ESA-listed species. However, even if the Court were to find that such harm 

is per se irreparable (and it should not for the reasons discussed above), it does not tip the 

balance of equities sharply in Plaintiffs’ favor. See Part II, infra. 

II. Plaintiffs Cannot Demonstrate that the Public Interest and the Balance of Equities 

Weigh in their Favor. 

The public interest inquiry primarily addresses impact on non-parties rather than parties. 

League of Wilderness Defenders/Blue Mts. Biodiversity Project v. Connaughton, 752 F.3d 755, 

766 (9th Cir. 2014). Although typically the balance of the equities and the public interest factors 

merge when the government is a party, the presence of intervenors with interests in the case can 

“make it appropriate to consider the factors separately.” Id. (citing Drakes Bay Oyster Co. v. 

Jewell, 729 F.3d 967 (9th Cir. 2013)). 

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Plaintiffs do not dispute that the Corps’ preparation of the Cormorant Plan and its related 

EIS was undertaken pursuant to the Corps’ goal of ensuring compliance with the Endangered 

Species Act. Congress has, by enacting the ESA, placed a thumb on the scales that weighs the 

public interest and the equities heavily in favor of the endangered species. TVA, 437 U.S. at 194 

(“Congress has spoken in the plainest of words, making it abundantly clear that the balance has 

been struck in favor of affording endangered species the highest of priorities, thereby adopting a 

policy which it described as ‘institutionalized caution.’”) (emphasis added); compare N. Dakota 

v. United States, 460 U.S. 300, 309 (1983) (“The protection of migratory birds has long been 

recognized as ‘a national interest of very nearly the first magnitude.’” (emphasis added) (quoting 

Missouri v. Holland, 252 U.S. 416, 435 (1920)). When it comes to balancing protection of 

endangered species from extinction against protecting depredating, non-endangered migratory 

birds from a temporary reduction in abundance below “sustainable” levels, Congress has spoken: 

the plain intent of the ESA “was to halt and reverse the trend toward species extinction, whatever 

the cost.” TVA, 437 U.S. at 184 (emphasis added); see also Marbled Murrelet v. Babbitt, 83 F.3d 

1068, 1073 (9th Cir.1996) (“Congress has determined that under the ESA the balance of 

hardships always tips sharply in favor of endangered or threatened species.”). 

Colville does not doubt that the “hardships” articulated by Plaintiffs and their declarants 

are sincere, in the sense that they believe they will suffer emotional and aesthetic injuries from 

mere contemplation that their tax dollars are being used to kill cormorants; from fewer 

cormorants to view and enjoy; and from diminished recreational enjoyment due to the thought of 

dead birds. But, feeling sad and bothered that only about 22,000 cormorants will remain in the 

Columbia River estuary after 2015 (a few thousand less than at present) cannot outweigh the 

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command of the ESA to protect endangered and threatened species from extinction. To balance 

the equities in favor of cormorants would ignore that endangered salmonids are to be given “the 

highest of priorities.” See TVA, 437 U.S. at 194. 

Aesthetic and emotional interests stemming from environmental injury may tip the scale 

when compared to economic interests, see Nat’l Parks & Conservation Ass’n v. Babbitt, 241 

F.3d 722, 738 (9th Cir. 2001); however, they do not tip the scale in favor of Plaintiffs in this case 

because any balancing of the hardships must fall in favor of the endangered species, see Native 

Songbird Care & Conservation v. LaHood, No. 13-CV-02265-JST, 2013 WL 3355657, at *13 

n.3 (N.D. Cal. July 2, 2013) (“Harm to any species impacts people who care for wildlife . . . But 

in balancing public interests, it is appropriate to note that while the cliff swallow is protected 

under the MBTA, it is a common and well-distributed species that has not been listed as 

threatened or endangered by either the federal or state governments.”). 

Plaintiffs claim that the balance of equities cannot tip in favor of Federal Defendants, and 

by proxy, the endangered species, because the Federal Defendants have allegedly failed to 

explain to Plaintiffs’ satisfaction how the Cormorant Plan “is likely to actually improve survival 

of juvenile salmon and steelhead” or “increase the productivity of listed adult salmon and 

steelhead.” Prelim. Inj. Mot. at 33. Plaintiffs claim that without “access to information as to 

whether such survival improvements are real or illusory,” this Court cannot balance the equities. 

Id. at 34. That argument ignores the principle that mitigation of even speculative risks to public 

resources is a valid public interest—a principle that is given “great weight when the risk is 

imminent or the danger has begun.” See Connaughton, 752 F.3d at 766. Here, the threat is 

imminent: cormorants at East Sand Island could consume upwards of 20 million salmonid smolts 

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in 2015, including ESA-listed salmonids that are at high risk for extinction. See FEIS at 3-48, 3-

50, 3-63. It’s common sense that when a species is at high risk for extinction, removing a 

significant source of mortality is imperative if that species is to survive and recover. 

Nor can aesthetic interests outweigh Colville’s right to harvest anadromous fish from the 

mainstem Columbia River and its tributaries. See Decl. of Randall Friedlander, ECF No. 36, ¶ 2. 

The Tribes’ fishing right is protected by federal law. See Antoine v. Washington, 420 U.S. 194, 

196 (1975) (Tribes’ reserved “the right to hunt and fish in common with all other persons” on 

unallotted lands within the former North Half of the Reservation “shall not be taken away or in 

anywise abridged.”); Colville Confederated Tribes v. Walton, 647 F.2d 42, 48 (9th Cir. 1981) 

(“preservation of the tribe’s access to fishing grounds was one purpose for the creation of the 

Colville Reservation”). However, the Tribes’ right to harvest fish from within the Colville 

Reservation, the North Half, and the Wenatshapam Fishery on Icicle Creek is meaningless if fish 

do not return in sufficient numbers to allow for actual harvest by Tribal members. Friedlander 

Decl. ¶ 8; accord Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 

443 U.S. 658, 679 (1979) (reservation of right to take fish is more than “merely the chance, 

shared with millions of other citizens, occasionally to dip their nets into the territorial waters.”). 

To that end, Colville has invested significant money and effort in restoring UCR 

steelhead populations and reintroducing spring Chinook to the Okanogan River, the most inland 

tributary of the mainstem Columbia accessible to anadromous fish. Id. ¶¶ 11, 12. It is 

uncontroverted that the cormorant colony at East Sand Island consumes millions of juvenile 

salmonids each year, averaging 6% of all juvenile Upper Columbia River (UCR) steelhead, 

FEIS at 3-51, and 4% of all juvenile UCR spring Chinook salmon (a population “considered to 

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be at a high risk of extinction), FEIS at 3-47 to 3-48. Cormorants also prey on non-ESA listed 

salmonids, including the Leavenworth Hatchery spring Chinook stock that currently comprise 

the sole source of spring Chinook harvest available to Colville at the Wenatshapam Fishery, see 

Friedlander Decl. ¶¶ 3, 7, and wild sockeye and hatchery-origin summer/fall Chinook that the 

Tribes harvest under their federally protected rights at the confluence of the Columbia and 

Okanogan Rivers, id. at Ex. A, p. 5; see also FEIS at 3-64, 3-65 at Table 3-7 (describing Colville 

ceremonial and subsistence fishery). 

Colville’s federally reserved rights to take fish from the Upper Columbia and its 

tributaries would be harmed if an injunction is granted because, without implementation of the 

Plan, cormorants nesting at East Sand Island will eat millions of UCR steelhead, spring Chinook, 

summer/fall Chinook and sockeye salmon smolts again this year. Those smolts will never return 

to the Upper Columbia as adults to become available for Tribal harvest. Those lost fish reduce 

the Tribes’ guaranteed right to a share of the harvest and impair the viability of Colville’s 

reserved fishing rights. Under these circumstances, Plaintiffs’ aesthetic harms cannot outweigh 

the Tribes’ cultural and subsistence need for salmon and steelhead to return to the Reservation 

and other fishing locations and the harvest rights that ensure those needs are satisfied. See Mille 

Lacs Band of Chippewa Indians v. State of Minn., 864 F. Supp. 102, 105 (D. Minn. 1994) aff’d 

sub nom. Mille Lacs Band v. Cnty. of Aitkin, 66 F.3d 332 (8th Cir. 1995) (balancing harms in 

favor of tribe because “an injunction could prevent plaintiffs from exercising their treaty rights; 

this could constitute irreparable injury.”) (citing Muckleshoot Indian Tribe v. Hall, 698 F. Supp. 

1504, 1516 (W.D.Wash.1988)). 

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III. Plaintiffs Are Not Likely To Succeed On The Merits. 

Colville addresses only one of the key issues going to the merits that was raised by 

Plaintiffs’ preliminary injunction motion; however, because Plaintiffs cannot show success on 

the other three Winters factors already discussed, there is no need for the court to address 

likelihood of success on the merits. See Vilsack, 636 F.3d at 1174. 

Plaintiffs assert that they are likely to succeed on the merits of their APA claim that the 

agencies “have failed to demonstrate a rational connection between killing thousands of birds 

and increasing returns of listed salmon spawners.” Prelim. Inj. Mot. at 9. This alleged d arises 

from the Corps’ supposed failure to link the Cormorant Plan to increases in adult productivity 

metrics. This argument misses the mark for at least two reasons. 

First, Plaintiffs mischaracterize (or misunderstand) the relevance of the “survival gap” 

analysis conducted by NMFS in the 2014 Supplemental Biological Opinion prepared for the 

operation of the Federal Columbia River Power System (“2014 FCRPS BiOp”). As stated by 

NMFS, 

One of the assumptions in our 2008 BiOp analysis was that specific rates of 

predation estimated for the Base Period would continue into the future. However, 

as noted in Section 2.2.4, this underestimated the predation rates by doublecrested cormorants in the estuary, which increased substantially in numbers 

during 2003–2009. As a result, the productivity of interior Columbia basin 

steelhead populations is about 3.6% lower than assumed for the Current Period in 

the 2008 BiOp analysis, and that of interior Columbia basin stream-type springand summer-run Chinook salmon and ocean-type SR fall Chinook salmon is 

about 1.1% lower than assumed. 

2014 FCRPS BiOp at 409 (Rohlf Decl., ECF No. 27, at 608). The 2008 FCRPS BiOp, which 

was supplemented in 2010 and 2014, analyzed several population-level jeopardy metrics, as 

measured during the “Base Period,” to determine whether the proposed FCRPS action 

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jeopardized listed salmonids as compared to the status of the listed ESUs during the Base Period. 

2014 FCRPS BiOp at 46, 48 (ECF No. 27 at 245, 247).7

 Because those Base Period indicator 

metrics formed the starting point to NMFS’ quantitative analyses for listed salmonids in the 2008 

BiOp, NMFS needed to determine “if this starting point has changed in a manner that would 

affect other parts of the 2008 BiOp’s jeopardy analysis.” Id. at 46. Because some FCRPS 

management actions changed from the beginning of the Base Period (i.e., the early 1980s) to the 

time when the 2008 BiOp was developed (i.e., 2007), the 2008 BiOp applied a Base-to-Current 

survival adjustment to observed Base Period productivity to represent the life-cycle performance 

that would be expected to occur if the current management activities and conditions of the 

environmental baseline continued into the future. 2014 FCRPS BiOp at 183. 

However, between 2007 and 2013, it became clear that in terms of cormorant predation 

rates, the conditions of the environmental baseline were not as assumed – predation rates and 

resulting impacts to salmonid productivity were likely much greater than the 2008 FCRPS BiOp 

assumed. Thus, NMFS needed to adjust its underlying assumption and determine what level of 

cormorant predation is consistent with the Base Period productivity and how the action agencies 

could reduce cormorant predation to that level in order to achieve the same survival benefits 

assumed by the 2008 FCRPS BiOp. 

 

7 “[A]ll life-cycle metrics informing the jeopardy analysis are based on the observed 

performance of populations during a historical time period and an assumption that, unless 

something affecting the survival or reproduction of the population changes in the future, the 

future performance can be projected from the pattern of past performance. The historical period 

of empirical observations is referred to in the 2008 BiOp as the Base Period.” 2014 FCRPS 

BiOp at 49. 

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The whole point of the modified RPA 46 is not to directly increase returns of adult 

spawners or overall productivity of ESA-listed ESUs, cf. Prelim. Inj. Mot. at 10-11, 13-14, but to 

ensure that salmonid consumption rates by cormorants under the 2014 FCRPS BiOp are reduced 

to the consumption rates estimated during the 2008 BiOp’s Base Period, see 2014 FCRPS BiOp 

at 409, so as to result in “no net change in the 2008 BiOp’s survival expectations related to 

cormorant predation,” 2014 FCRPS BiOp at 468;8 see also 2014 FCRPS BiOp App. E at E-3 

(“The primary goal for addressing double-crested cormorant . . . smolt consumption in the 2013 

BiOp is to determine the smolt survival ‘gap’ that has resulted from the dramatic increase in 

cormorant population and smolt consumption between the base and current years that was not 

captured in the 2008 BiOp analysis.”). In other words, the Cormorant Plan is needed to correct 

an assumption underlying survival estimates of the 2008 BiOp in order to ensure that those 

estimates remain valid under the 2014 FCRPS BiOp. 

 

8

 As explained by NMFS: 

The 2008 BiOp’s quantitative analysis for interior Columbia basin species 

implicitly assumed that cormorant predation rates were, and would remain, 

unchanged from average predation rates during the 2008 BiOp’s Base Period. 

Because new information indicates that cormorant predation rates have been 

higher (and therefore salmon and steelhead survival has been lower) than that 

occurring in the 2008 BiOp Base Period, Base-to-Current survival is lower than 

estimated in the 2008 BiOp for all populations of interior Columbia basin species. 

However, in response to this new information, modification of RPA Action 46 

calls upon the Corps to implement management actions by 2018 that will reduce 

cormorant nesting pairs, such that predation is reduced to a level equivalent to that 

during the 2008 BiOp’s Base Period. The improvement in survival associated 

with the modified RPA Action 46 is expected to balance the reduced estimate of 

environmental baseline survival, leading to no net change in the 2008 BiOp’s 

survival expectations related to cormorant predation. 

2014 FCRPS BiOp at 468. 

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Second, as at least one expert witness for the plaintiffs in the FCRPS BiOp case has 

acknowledged, compensatory mortality is simply not relevant in the analysis related to 

cormorants because of the nature of the problem that the survival gap analysis is meant to 

address: 

For cormorants, the agencies are seeking to reduce cormorant predation to a level 

consistent with their assumptions about Base Period cormorant predation because 

predation by this species increased significantly after the Base Period, but this 

increase was not taken into account in the assumptions used in the 2008 BiOp’s 

analysis (which instead assumed that cormorant predation in the future would be 

at approximately the same level as in the Base Period). Under these 

circumstances, where the focus is on reducing a single source of predation—

cormorants—to the level assumed for that source in the original analysis, it is 

reasonable to treat the level of compensatory mortality associated with that 

predation as being the same in the earlier time period (i.e., in the Base Period) as 

in a later time period (after the Base Period). And it does not matter to the 

analysis whether the assumed level of compensatory mortality is 50% or 100%. 

Second Decl. of Frederick Olney ¶ 35 (filed in NWF v. NMFS, Case No. 3:01-cv-00640-SI (D. 

Or.) as ECF No. 2018) (emphasis added).9 

Plaintiffs’ arguments about compensatory mortality and the necessity of linking 

cormorant population reduction to increased adult returns assume that the Federal agencies are 

seeking to reduce the overall level of mortality that listed salmonids experience from all sources 

by reducing the mortality from a specific source: cormorants. On this matter, Plaintiffs’ counsel 

should tread carefully, as their arguments appear to run counter to arguments they have made in 

the FCRPS BiOp case also pending before this Court. See Plaintiffs’ Mot. for Summ. J. at 31 

(NWF v. NMFS, Case No. 3:01-cv-00640-SI, ECF No. 1976) (“NOAA says the action agencies 

will need to develop a plan to reduce cormorant predation, not in any absolute terms, but only in 

 

9

 Plaintiffs’ counsel Daniel Rohlf should be well aware of Mr. Olney’s opinions, as he is cocounsel for the plaintiffs in the FCRPS BiOp case. 

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order to return it to the level of NOAA’s 2008 assumption.”); NWF’s Reply Mem. in Supp. of 

Mot. for Summ. J. at 23 n.19 (ECF No. 2016) (adopting supporting declarant’s position that 

compensatory mortality does not apply to cormorant predation); Second Decl. of Frederick 

Olney at ¶ 50 (ECF No. 2018).10

Plaintiffs’ counsel are well-aware that the point of the Cormorant Plan is not to increase 

adult returns per se, but to address an overlooked source of mortality that arose after the Base 

Period used in the FCRPS BiOp’s analysis and restore cormorant-caused mortality to its Base 

Period level; it is meant to correct an assumption that impacts the environmental baseline used to 

evaluate the effects of the proposed action (i.e., implementation of the RPA for ongoing FCRPS 

operations). 2014 FCRPS BiOp at § 2.2 p. 183 (ECF No. 27 at 382); 2014 FCRPS BiOp at 456 

 

10 Mr. Olney states it quite clearly: 

In the Cormorant Appendix to the 2014 BiOp, NOAA calculates that the effect of 

this increased predation is to create a survival gap between the assumptions about 

cormorant predation in the 2008 BiOp and what has actually occurred since then 

of 3.6% for steelhead populations, 1.1% for yearling Chinook, and less than 1% 

for sockeye. 2014 BiOp, App. E. at E-5 to E-6. In other words, steelhead survival 

during the Current Period was 3.6% lower and spring/summer Chinook survival 

was 1.1% lower, as compared to the Base Period, than the analysis in the 2008 

BiOp assumed. In order to address this survival “gap,” NOAA proposes to reduce 

cormorant predation from today’s level by an amount sufficient to return 

cormorant predation levels to those of the Base Period, thereby bringing Current 

Period cormorant predation on salmon and steelhead in line with the assumptions 

in the 2008 BiOp analysis. As I have discussed above, see supra at ¶¶ 34-37, the 

cormorant action in the RPA is not designed to increase overall salmon survival 

as compared to the Base Period (unlike the action to address tern predation), but 

to address an overlooked source of increased mortality from a single source that 

arose after the Base Period. It is not intended to achieve a net gain in salmon and 

steelhead survival, but to restore survival to levels NOAA (incorrectly) assumed 

in 2008. 

(emphasis added). 

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(“Additionally, survival from avian predation is expected to improve to match 2008 BiOp 

expectations as a result of the amended RPA Action 46 cormorant management action.”). 

Thus, Plaintiffs’ central claim in this litigation is based on an incorrect reading of the 

FCRPS BiOp and implementation of the RPA through the Cormorant Plan. The unavailability of 

this argument greatly undermines Plaintiffs’ claims and discredits their request for a preliminary 

injunction. 

CONCLUSION 

 For all of the reasons above, Plaintiffs have failed to demonstrate they are entitled to the 

extraordinary relief represented by a preliminary injunction. Colville respectfully requests that 

the motion be denied and that the Court establish a schedule for resolution of the merits. 

Respectfully submitted this 6th day of May, 2015. 

s/ Brian C. Gruber 

Brian C. Gruber, WSBA # 32210 

Beth Baldwin, WSBA # 46018 

ZIONTZ CHESTNUT 

2101 Fourth Avenue, Suite 1230 

 Seattle, Washington 98121 

 Tel. (206) 448-1230 

Fax (206) 448-0962 

bgruber@ziontzchestnut.com 

bbaldwin@ziontzchestnut.com 

Attorneys for Confederated Tribes of the Colville 

Reservation 

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- CERTIFICATE OF SERVICE 

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CERTIFICATE OF SERVICE 

 I hereby certify that on May 6, 2015, I electronically filed the foregoing document with 

the Clerk of the Court using the CM/ECF system which will send notification of such filing to all 

parties in this matter who are registered with the Court’s CM/ECF filing system. 

 s/ Cara Hazzard 

 Legal Assistant 

 

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