UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

CENTER FOR BIOLOGICAL DIVERSITY, 

Plaintiff, 

v. 

U.S. BUREAU OF RECLAMATION, 

Defendant, 

and 

ARNOLD IRRIGATION DISTRICT, et al., 

Intervenor-defendants. 

WATERWATCH OF OREGON, 

Plaintiff, 

v. 

U.S. BUREAU OF RECLAMATION, et al., 

Defendants, 

and 

ARONOLD IRRIGATION DISTRICT, et al, 

Intervenor-defendants. 

1 - OPINION AND ORDER 

Case Nos. 6: 15-cv-02358-JR 

(Lead Case) 

6:16-cv-00035-JR 

(Trailing Case) 

Case 6:15-cv-02358-JR Document 67 Filed 04/06/16 Page 1 of 11
AIKEN, Judge: 

In these consolidated actions, plaintiffs filed suit against the U.S. Bureau of Reclamation 

(BOR) and several hTigation districts (Districts), alleging that the BOR and Districts' operation 

and maintenance of Crane Prairie Dam and Reservoir, Wickiup Dam and Reservoir, and 

Crescent Lake Dam violate Sections 7 and 9 of the Endangered Species Act (ESA). Plaintiffs 

maintain that the dams' operations cause adverse impacts to the Oregon spotted frog, a 

threatened species, by inhibiting and altering natural flows of the Upper Deschutes River. 

Plaintiffs now move for preliminary injunctive relief in order to protect the spotted frog 

pending final resolution in this case. Specifically, plaintiffs seek a preliminary injunction 

requiring BOR and the Districts to open the controls of the dams to allow for natural water flows, 

or, alternatively, to alter reservoir operations so that the flow of the Upper Deschutes River is 

maintained at levels of at least 770 cubic feet per second (cfs). BOR and the Districts oppose the 

motion and argue that plaintiffs' proposed relief will not aid and could harm the spotted frog 

while causing unanticipated effects and certain harm to other water users and stakeholders. The 

Confederated Tribes of the Watm Springs Reservation (the Tribe), as amicus curiae, also 

opposes plaintiffs' requested relief and argues that such relief likely would impair its interests in 

protected fish species. 

On March 22, 2016, the court heard oral argument from the parties and the Tribe. As 

advised during the hearing, plaintiffs' motion is denied. 

DISCUSSION 

A preliminary injunction is "an extraordinary remedy that may only be awarded upon a 

clear showing that the plaintiff is entitled to such relief." Winter v. Natural Res. Def Council, 

Inc., 555 U.S. 7, 22 (2008). In order to obtain a preliminary injunction, the movant must show: 1) 

2 - OPINION AND ORDER 

Case 6:15-cv-02358-JR Document 67 Filed 04/06/16 Page 2 of 11
a likelihood of success on the merits; 2) a likelihood of irreparable hmm if the injunction is not 

issued; 3) the balance of hardships tips in the movant's favor, and 4) an injunction serves the 

public interest. Id. at 20; All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 

2011). Here, plaintiffs' burden is more demanding because they seek a mandatory injunction 

requiring the BOR and Districts to take action; they do not seek a prohibitory injunction 

enjoining a proposed action. lvfarlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 

F.3d 873, 879 (9th Cir. 2009) (describing prohibitory and mandatory injunctions). Mandatory 

injunctions go "well beyond simply maintaining the status quo" and, as a result, are "pmiicularly 

disfavored." Id (citation omitted); Stanley v. Univ. S. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994). 

"In general, mandatory injunctions are not granted unless extreme or very serious damage will 

result and are not issued in doubtful cases." J\1arlyn Nutraceuticals, 571 F.3d at 879 (internal 

quotation marks and citation omitted); Park Vil!. Apartment Tenants Ass'n v. lvfortimer Howard 

Trust, 636 F.3d 1150, 1160 (9th Cir. 2011) (accord). Consequently, plaintiffs must "establish that 

the law and facts clearly favor" their position. Garcia v. Google, Inc., 786 F.3d 733, 740 (9th 

Cir. 2015). Plaintiffs fail to meet this burden. 

Plaintiffs allege that BOR has violated Section 7(a)(2) of the ESA by allowing the dams' 

continued operations before completing ESA consultation. Under Section 7, federal agencies 

must insure that any actions are not likely to jeopardize the "continued existence" of a tln·eatened 

or endangered species or adversely modify the species' critical habitat. 16 U.S.C. § 1536(a)(2). 

Federal agencies must consult with the United States Fish and Wildlife Service (FWS) or 

National Marine Fisheries Service regarding any agency action that may affect a threatened or 

endangered species. Id.; Nat'/ Wildlife Fed'n v. Nat'l lvfarine Fisheries Serv., 422 F.3d at 782, 

790 (9th Cir. 2005). 

3 - OPINION AND ORDER 

Case 6:15-cv-02358-JR Document 67 Filed 04/06/16 Page 3 of 11
Here, BOR has initiated consultation with the FWS on the effects of conservation 

measures the Districts intend to implement to benefit the spotted frog. 1 Plaintiffs nonetheless 

argue that the ESA consultation is too natTOW and does not address the entirety of the dams' 

operations and resulting effects on the frog. Regardless of how the consultation process is 

characterized, BOR has initiated consultation regarding the dams' operations, and, presumably, 

the consultation will consider the cumulative effects of the dams' operations on the frog. See Ctr. 

for Biological Diversity v. US. Fish & Wildlife Serv., 807 F.3d 1031, 1045 (9th Cir. 2015) 

(remarking that "interrelated actions are, by definition, pati of the 'effects of the action"'); id. at 

1047 n.13 ("FWS is required in its biological opinion to determine 'whether the action, taken 

together with cumulative effects, is likely to jeopardize the continued existence of listed species.' 

50 C.F.R. § 402.14") (citation omitted). If the scope of consultation is too natTow, the cou1i can 

address that factor at the merits stage; it does not wanant a preliminary injunction. 

1

In 2008, the Deschutes Basin Board of Control and the City of Prineville began 

developing the Deschutes Basin Habitat Conservation Plan (Deschutes HCP). Moran Deel. 'if'if 

11-13; Deflitch Deel. 'if 44; Willey Deel. 'if'if 10-16; see also 16 U.S.C. § 1539(a)(2)(A) (party 

seeking incidental take permit must submit a conservation plan). The Deschutes HCP process 

represents a multi-year, collaborative effort by numerous state, federal, tribal, non-governmental, 

and private entities to "help coordinate water management, streamflow restoration, and the longterm needs of sensitive and federally-listed species," including the spotted frog. Deflitch Deel. il 

44; Moran Deel. 'if'if 11-13. The "Oregon Spotted Frog Technical Group" - comprised of scientists 

and experts from FWS, the United States Forest Service, the Oregon Depatiment of Fish and 

Wildlife, the Oregon Water Resources Depatiment, and the Districts - has developed 

conservation measures intended to enhance spotted frog habitat. Vaughn Deel. 'if'if 19-21; Willey 

Deel. 'if'if 17-18, 46-58. First Sewell Deel. Ex. 19. BOR initiated consultation with FWS in 2015, 

as some of these early conservation actions may require BOR approval or other affirmative 

agency action. The consultation is expected to be completed in July 2017 and will govern the 

Districts' operations pending completion of the Deschutes HCP, which is expected to occur in 

2019. Moran Deel. 'if'if 13-14 & Figs. 1-2. In the meantime, the Districts intend to implement 

interim measures to protect the spotted frog until the ESA consultation is complete. Vaughn 

Deel. 'if'if 18-20, 28 & Ex. C; Moran Deel. 'if'if 8, 28; Willey Deel. 'if'if 46-58, 61; Diller Deel. 'if 28; 

Britton Deel. 'if'if 10-11. 

4 - OPINION AND ORDER 

Case 6:15-cv-02358-JR Document 67 Filed 04/06/16 Page 4 of 11
Plaintiffs next claim that BOR has violated Section 7(d), which precludes an agency from 

making "any irreversible or irretrievable commitment of resources" after the initiation of 

consultation that would foreclose "any reasonable and prudent alternative measures." 16 U.S.C. 

§ 1536(d). Plaintiffs apparently consider the continued operation of the dams as an 

"irretrievable" commitment of water resources. However, plaintiffs fail to explain how the 

continued operation of the dams will foreclose the implementation of any reasonable and prudent 

measures that may be developed during the consultation process. See Eitel Deel. U.S. Ex. F at 1-

2 (Decision Memo by BOR asserting that the Districts' continued operations "will not 

irreversibly or irretrievably commit resources that have the effect of foreclosing the foimulation 

or implementation of any reasonable and prudent alternatives"). 

Lastly, plaintiffs allege that BOR and the Districts are violating Section 9 of the ESA. To 

show a violation of Section 9, plaintiffs must demonstrate that the defendants' actions cause 

"take" of the spotted frog. 16 U.S.C. §§ 1538(a)(l)(B) (prohibiting "take" of protected species), 

1540(a)(l) (imposing civil liability against those who violate ESA). The "take" of a protected 

species includes "harm" to the species, defined as "an act which actually kills or injures wildlife" 

or "significant habitat modification or degradation where it actually kills or injures wildlife by 

significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." 

16 U.S.C. § 1532(19); 50 C.F.R. § 17.3. 

The parties disagree as to whether the Districts' ongoing operations, in light of the 

interim measures, will cause harm to the spotted frog. Plaintiffs argue that the dams' operations 

harm the frog "by causing desiccation of egg masses that kills the eggs, flooding of egg masses 

into deeper water that increases predation of eggs, and failure to inundate breeding habitat for 

much of the breeding season that either prevents or delays breeding." Pis.' Mem. in Suppo1t at 

5 - OPINION AND ORDER 

Case 6:15-cv-02358-JR Document 67 Filed 04/06/16 Page 5 of 11
23; First Simpson Deel. ~~ 33-75. Plaintiffs thus contend that the spotted frogs in the Upper 

Deschutes River basin are likely to have "increased m01iality" as a result. First Simpson Deel. ~~ 

82-89. The Districts counter that plaintiffs' contentions are "highly speculative" and that "high 

mortality" rates are paii of the "natural" life cycle for the frog. Districts' Opp'n at 34; Diller 

Deel.~~ 31, 32. The Districts maintain that "it is often difficult to determine whether harm to an 

individual Oregon spotted frog, tadpole, or egg mass is likely the result of natural phenomenon 

or the direct result of some other action (e.g. operation of reservoirs to change water flows)." 

Districts' Opp'n at 34; Diller Deel.~~ 31, 37; 79 Fed. Reg. at 51659-60 ("spotted frogs' eggs are 

extremely vulnerable to desiccation and freezing" due to the frogs' "laying habits"). 

As plaintiffs point out, the FWS listing decision for the spotted frog and other evidence 

reflect that regulated water releases from the dams affect overwintering and breeding habitat for 

the spotted frog. First Sewell Deel. Exs. 1, 4, 6, 7-9, 12; 79 Fed. Reg. at 51670. However, even if 

I found that the dams' operations were likely to result in unlawful "take" of the spotted frog in 

violation of Section 9, plaintiffs do not meet their burden of establishing that the facts and law 

clearly support the extraordinary injunctive relief they seek. 

BOR and the Districts emphasize that the ESA protects species rather than individual 

animals, and, consequently, plaintiffs must show irreparable harm in the form of "significant 

population-level effects to the species." Fed. Def. 's Opp'n at 13; Districts' Opp'n at 13-152

; see 

also Nw. Envtl. Def Ctr. v. US. Army Corps of Eng'rs, 817 F. Supp. 2d 1290, 1315 (D. Or. 

2011) (finding that "irreparable harm to ESA listed species must be measured at the species 

2 Defendants maintain that plaintiffs must show the dams' operations are likely to cause 

irreparable harm to their own interests, which can be shown only through harm to the spotted 

frog as a species. See Winter, 555 U.S. at 20 (explaining that a patiy seeking injunctive relief 

must show that "he is likely to suffer irreparable harm"); Cetacean Cinty. v. Bush, 386 F.3d 

1169, 1179 (9th Cir. 2004) (stating that "individual animals do not have statutory standing to 

sue" under the ESA). 

6 - OPINION AND ORDER 

Case 6:15-cv-02358-JR Document 67 Filed 04/06/16 Page 6 of 11
level," and a "plaintiff must present a 'concrete showing of probable deaths during the interim 

period and of how these deaths may impact the species."') (citation omitted); Deft. of Wildlife v. 

Salazar, 812 F. Supp. 2d 1205, 1209 (D. Mont. 2009) (explaining that considering harm to 

individual animals as irreparable harm "would produce an irrational result" because "the ESA 

permits incidental takes of a listed species"); Ctr. for Envtl. Sci., Accuracy & Reliability v. 

Cowin, 2015 WL 3797693, at *9 (E.D. Cal. June IS, 2015) ("Irreparable injury requires harm 

'significant' to the 'overall population."') (citation omitted). 

Plaintiffs disagree and argue that the likelihood of a Section 9 violation establishes 

i1Teparable harm under the ESA. See Nat'! Wildlife Fed'n v. Burlington N. R.R., 23 F.3d 1508, 

1511 (9th Cir. 1994). If plaintiffs were seeking a prohibitory injunction, I might agree that 

plaintiffs need not show irreparable harm at the species level, depending on the circumstances. 

Here, however, plaintiffs seek a mandatory injunction requiring wholesale changes to the 

operations of three dams and to the management of the Upper Deschutes River basin. Given 

these circumstances, plaintiffs must show more than a likely Section 9 violation to obtain such 

far-reaching relief. Id. ("Federal courts are not obligated to grant an injunction for every 

violation of the law."). Rather, to persuade this court to impose the mandatory iajunction they 

seek, plaintiffs must make a showing of "extreme damage" and present evidence that the dams' 

operations are causing irreparable harm to the spotted frog that "would be significant for the 

species as a whole." Pac. Coast Fed'n of Fishermen's Ass'ns v. Gutierrez, 606 F. Supp. 2d 1195, 

1210 n.2 (E.D. Cal. 2008); Nw. Envtl. Def Ctr, 817 F. Supp. 2d at 1315. Plaintiffs fail to do so. 

According to defendants, the Upper Deschutes River basin, including the area directly 

affected by the iffigation projects, continues to be a "stronghold" for the Oregon spotted frog. 

Fed. Defs.' Opp'n at 14. Defendants maintain that evidence shows the frogs are increasing in 

7 - OPINION AND ORDER 

Case 6:15-cv-02358-JR Document 67 Filed 04/06/16 Page 7 of 11
some areas, stable at others, and declining in an area unaffected by dam and reservoir operations. 

79 Fed. Reg. at 51666; Vaughn Deel. ifif 10, 23; Diller Deel. ifif 26-27, 29. Defendants also 

emphasize that current conditions in the Upper Deschutes basin actually benefit the frog. Vaughn 

Deel. ifif 14-15, 29; Diller Deel. ifif 11, 39-40; Moran ifif 19, 33. Most significantly, the Districts 

are implementing interim measures - coordinated with and approved by FWS - to improve 

spotted frog habitat conditions during the ESA consultation process. See Moran Deel. ifif 8, 28; 

Vaughn Deel. i!iJ 20-21, 28; Willey Deel. ifif 46-58, 61; Diller Deel. if 28; Britton Deel. ifif 10-11. 

At oral argument, plaintiffs acknowledged the benefit of the interim measures but argued 

that low river flows in the winter will nonetheless cause inm1inent and ilTeparable harm to the 

spotted frog. See First Simpson Deel. if 45 ("Low river flows during the reservoir refill season 

from mid-October to mid-April drop water tables to extremely low levels in riverine wetland 

habitat, eliminating or severely limiting suitable OSF overwinter habitat between Wickiup and 

Bend."); id. ifif 96-101. However, I agree with defendants that plaintiffs allege potential adverse 

effects to the frog and its critical habitat without providing any substantive evidence to quantify 

the hatm that would result. Without such quantified information, the court cannot find that the 

potential harm wa!Tants the mandatory relief requested by plaintiffs. See S. Yuba River Citizens 

League v. Nat'! lYJarine Fisheries Serv., 2013 WL 4094777, at *7-8 (E.D. Cal. Aug. 13, 2013). 

Even if plaintiffs established a likelihood of success on their ESA claims and some 

degree of ilTeparable harm to the frogs, plaintiffs fail to show that the balance of hardships tips in 

their favor and serves the public interest. Generally, the balance of hardships and the public 

interest tip "sharply" in favor of protected species. J\!farbled lYJurrelet v. Babbitt, 83 F.3d 1068, 

1073 (9th Cir. 1996). Nonetheless, a plaintiff seeking a preliminary injunction has the burden to 

"present the court with some basis on which it can conclude that an injunction would in fact 

8 - OPINION AND ORDER 

Case 6:15-cv-02358-JR Document 67 Filed 04/06/16 Page 8 of 11
benefit the protected species." All. for the Wild Rockies v. Kruger, 35 F. Supp. 3d 1259, 1267 (D. 

Mont. 2014). Here, the record does not clearly support the finding that plaintiffs requested relief 

would significantly improve conditions for the spotted frog. 

Plaintiffs present two options for injunctive relief. The "regulated" option would hold 

Crane Prairie reservoir at 4,443.3 feet and provide flows of 770 cfs below Wickiup dam. The 

"run of the river" option would open the controls of the of the Crane Prairie and Wickiup dams 

to "allow for natural flows to pass through the system and down the river." Pis.' Mem. in 

Support at 33. Plaintiffs also propose a minimum flow of 40 cfs for Crescent Creek/Little 

Deschutes. Plaintiffs' biological expe1t, Ms. Simpson, opines that such flows and reservoir levels 

are necessary to improve habitat conditions for the frog. First Simpson Deel. ~~ 90-92. 

Initially, I note that plaintiffs' requested relief is not based on studies or surveys of the 

frog and the hydrological conditions of the Upper Deschutes River basin over a meaningful 

period of time. Rather, plaintiffs' proposals are based primarily on the limited observations of 

one individual over the course of several weeks. First Simpson Deel. ii 18. This fact alone 

renders the requested relief questionable. Moreover, biologists and other experts disagree with 

plaintiffs' proposals. See Declarations of Moran, Ramey, Vaughn, Diller. These experts note that 

certain conditions are beneficial to the frog and abrupt alterations could negatively affect those 

conditions and actually harm the frog. Diller Deel.~~ 15-16, 20-22; Vaughn Deel.~~ 11, 14-15, 

17; Ramey Deel. ~~ 24-29; Moran Deel. Significantly, plaintiffs' experts do not acknowledge 

other impacts that could result from changes in management of the Upper Deschutes River basin, 

while defendants' expe1ts contend that plaintiffs' injunction would not produce the hydrological 

results plaintiffs intend. Moran Deel.~~ 9-10, 17-19, 28-31; Diller~~ 24-25; Ramey Deel.~~ 7, 

18, 20-23, 26; Vaughn Deel.~~ 12, 16, 26-29, 32; Willey Deel.~~ 60, 62, 64. 

9 - OPINION AND ORDER 

Case 6:15-cv-02358-JR Document 67 Filed 04/06/16 Page 9 of 11
It is not the court's role to pick and choose among expert opinions; a "federal court lacks 

the expertise and/or background in [frog] biology, hydrology, hydraulic engineering, water 

project operations, and related scientific and technical disciplines that are essential to 

determining how the water projects should be operated on a real time, day-to-day basis." 

Gutierrez, 606 F. Supp. 2d at 1214; see also The Lands Council v. McNair, 537 F.3d 981, 988 

(9th Cir. 2008) (en bane) (explaining that the court should not "act as a panel of scientists" that 

"chooses among scientific studies"), overruled on other grounds, Am. Trucking Ass 'ns v. City of 

Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). Given the genuine dispute among relevant 

expetts as to whether plaintiffs' proposal will remedy the harm allegedly caused by the dams' 

operations, plaintiffs fail to show that the requested relief will, in fact, benefit the spotted frog 

pending resolution of this case. See S. Yuba River Citizens League, 2013 WL 4094777, at *8. 

Fmthermore, I agree with defendants that plaintiffs' proposed relief would disrupt the 

ongoing, collaborative efforts by BOR, the Districts, the State of Oregon, the Tribe and other 

stakeholders to address long-tenn changes to the dams' operations. Vaughn~ 30; Moran Deel.~~ 

11-14; Willey Deel.~~ 14-16, 46-58, 61. Such disruption would not assist the spotted frog in the 

long term or benefit the public interest. 

Finally, the requested relief would create cettain hardship for farmers and ranchers, 

increase the flood risk for the City of Tumalo, eliminate the use of stored water for at least one 

irrigation district, and potentially conflict with state water law. Macy Deel.; Johnson Deel. ii~ 44-

45; Ramey Deel. ~ 27; Horrell Deel. ~ 14; Britton Deel. ~ 20; Or. Rev. Stat. § 537.130(1) 

(impoundment of water must be authorized by the Oregon Water Resources Depmtment). 

Plaintiffs' iajunction also could affect other threatened species, such as the Columbia River bull 

10 - OPINION AND ORDER 

Case 6:15-cv-02358-JR Document 67 Filed 04/06/16 Page 10 of 11
trout and the Middle Columbia River steelhead. As the Tribe points out, "the needs of the 

Oregon spotted frog cannot be considered in a vacuum." Tribe's Amicus Response at 15. 

In short, plaintiffs' requested relief essentially would interfere with a collaborative 

process among relevant public and private stakeholders, potentially harm protected fish and 

tribal interests, and cause certain harm to stmounding communities and farmers. In comparison, 

plaintiffs fail to establish a clear likelihood of success on the merits or hTeparable harm to the 

spotted frog that would be remedied by the relief they seek. Consequently, the balance of 

hardships does not tip in favor of plaintiffs, and the requested relief would not serve the public 

interest. 

CONCLUSION 

Accordingly, plaintiffs' motion for preliminary injunction (doc. 20) is DENIED, and 

plaintiffs'motion for request to stay offotmal opinion and set a trial date (doc. 63) is DENIED. 

The patiies are directed to contact Paul Bruch, 541-431-4111, to schedule judicial settlement 

proceedings with Magistrate Judge Coffin. 

IT IS SO ORDERED. 

Dated this (z~y of April, 2016. 

Ann Aiken 

United States District Judge 

11 - OPINION AND ORDER 

Case 6:15-cv-02358-JR Document 67 Filed 04/06/16 Page 11 of 11