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(Consolidated Case No. 6:15-cv-02358-TC)

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KARL G. ANUTA (OSB #861423) THE HONORABLE THOMAS COFFIN

Law Office of Karl G. Anuta, P.C.

735 S.W. First Avenue, 2nd Floor

Portland, OR 97204

kga@integra.net

Phone: (503) 827-0320 | Fax: (503) 228-6551

Local Counsel for Plaintiff WaterWatch of Oregon

JANETTE K. BRIMMER (WSB #41271)

[Appearing Pro Hac Vice]

ANNA M. SEWELL (WSB # 48736)

[Appearing Pro Hac Vice]

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asewell@earthjustice.org

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Lead Counsel for Plaintiff WaterWatch of Oregon

Lauren M. Rule (OSB # 015174)

Elizabeth Hunter Zultoski (OSB # 105482)

Advocates for the West

3115 NE Sandy Blvd., Suite 223

Portland, OR 97232

lrule@advocateswest.org

ezultoski@advocates.org

Phone: (503) 914-6388

Counsel for Plaintiff Center for Biological Diversity

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

CENTER FOR BIOLOGICAL DIVERSITY,

Plaintiff,

v.

U.S. BUREAU OF RECLAMATION,

Case No. 6:15-cv-02358-TC

Consolidated with

Case No. 6:16-cv-00035-TC

MOTION FOR PRELIMINARY 

INJUNCTION AND MEMORANDUM 

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Defendant,

and

IN SUPPORT

ORAL ARGUMENT AND EXPEDITED 

HEARING REQUESTED

ARNOLD IRRIGATION DISTRICT, 

CENTRAL OREGON IRRIGATION 

DISTRICT, LONE PINE IRRIGATION 

DISTRICT, NORTH UNIT IRRIGATION 

DISTRICT, TUMALO IRRIGATION 

DISTRICT,

Intervenor Defendants.

WATERWATCH OF OREGON,

Plaintiff,

v.

U.S. BUREAU OF RECLAMATION, 

CENTRAL OREGON IRRIGATION 

DISTRICT, NORTH UNIT IRRIGATION 

DISTRICT, and TUMALO IRRIGATION 

DISTRICT,

Defendants,

and

Case No. 6:16-cv-00035-TC

ARNOLD IRRIGATION DISTRICT, LONE 

PINE IRRIGATION DISTRICT,

Intervenor Defendants.

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MOTION FOR PRELIMINARY INJUNCTION

Pursuant to Federal Rule of Civil Procedure 65, Plaintiffs Center for Biological Diversity 

and WaterWatch of Oregon hereby move to immediately enjoin the U.S. Bureau of Reclamation 

(“BOR”) and Defendant irrigation districts from operating Crane Prairie dam and reservoir, 

Wickiup dam and reservoir, and Crescent Lake dam and reservoir in ways that harm Oregon 

spotted frogs. BOR and Defendant irrigation districts are violating the Endangered Species Act 

(“ESA”) by continuing to operate those facilities in ways that cause irreversible harm to Oregon 

spotted frogs before completing ESA consultation and a habitat conservation plan for those 

operations.

Because the operation of the dams and reservoirs in Spring 2016 and beyond threatens 

Oregon spotted frogs with likely irreparable harm, Plaintiffs respectfully request that this Court 

enter a preliminary injunction not later than April 1, 2016 to protect spotted frogs this breeding 

season and beyond. Plaintiffs request an injunction that would alter operations of Crane Prairie, 

Wickiup, and Crescent Lake dams and reservoirs in ways that reduce harm to Oregon spotted 

frogs, as described more fully in the accompanying memorandum and declarations. Pursuant to 

Local Rule 7-1, the undersigned certify that the parties have conferred and have been unable to 

resolve this motion.

Plaintiffs request an expedited hearing on this matter. In light of the important public 

interest nature of this litigation and nonprofit status of the litigants, Plaintiffs further request that 

this Court waive any injunction bond under Fed. R. Civ. P. 65(c).

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MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

TABLE OF CONTENTS

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

STATEMENT OF FACTS ..............................................................................................................2

I. OREGON SPOTTED FROG IN THE UPPER DESCHUTES BASIN. .............................2

II. HARM TO SPOTTED FROGS FROM CRANE PRAIRIE, WICKIUP, AND 

CRESCENT LAKE DAMS.................................................................................................6

A. Threats to Spotted Frogs Downstream of Wickiup Dam.........................................7

B. Specific Threats to Spotted Frogs Around Crane Prairie and Wickiup 

Reservoirs. .............................................................................................................12

C. Threats to Spotted Frogs Downstream of Crescent Lake Dam..............................13

III. ESA CONSULTATION OVER OPERATION OF THESE FACILITIES.......................15

ARGUMENT.................................................................................................................................19

I. IN ESA CASES THE STANDARD FOR INJUNCTIVE RELIEF REQUIRES 

THAT THE EQUITIES TIP IN FAVOR OF THE SPECIES...........................................19

II. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS. ...................................20

A. The ESA Requires Federal Agencies to Ensure Their Actions Do Not 

Jeopardize Listed Species or Adversely Modify Critical Habitat..........................20

B. BOR and the Irrigation Districts are Violating the ESA with their 

Operation of Crane Prairie and Wickiup Dams and Reservoirs. ...........................22

C. The Irrigation Districts are Violating the ESA with their Operation of 

Crescent Lake Dam and Reservoir. .......................................................................25

III. THE CONTINUED OPERATION OF CRANE PRAIRIE, WICKIUP, AND 

CRESCENT LAKE DAMS AND RESERVOIRS IS LIKELY TO CAUSE 

IMMINENT, IRREPARABLE HARM TO OREGON SPOTTED FROGS. ...................27

A. In ESA Cases, A Likely Ongoing or Future Violation Meets the Test of 

Irreparable Harm for Injunctive Relief. .................................................................27

B. Harm to Spotted Frogs is Ongoing and Will Continue..........................................29

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IV. TO AVOID OR AT LEAST MINIMIZE HARM PENDING COMPLETION OF 

A BIOLOGICAL OPINION AND HABITAT CONSERVATION PLAN,

CONDITIONS IN THE UPPER DESCHUTES BASIN MUST MOVE TO A 

STATE THAT IS CLOSER TO NATURAL FLOW CONDITIONS. .............................30

A. It is Important for Protections to be in Place by the First Week of April 

This Year................................................................................................................30

B. Each of the Two Proposals by Plaintiffs’ Experts Result in Moving the 

River Toward More Natural Flow Conditions.......................................................31

CONCLUSION..............................................................................................................................34

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TABLE OF AUTHORITIES

Cases

Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv.,

789 F.3d 1075 (9th Cir. 2015) ............................................................................................ 19, 27

Ctr. for Biol. Diversity v. BLM,

698 F.3d 1101 (9th Cir. 2012) .................................................................................................. 22

Ctr. for Biol. Diversity v. Otter,

2016 WL 233193 (D. Idaho Jan. 8, 2016) ................................................................................ 28

Ctr. for Biol. Diversity v. U.S. Fish and Wildlife Serv.,

2011 WL 6813200 (N.D. Cal. Dec. 28, 2011).......................................................................... 28

Defenders of Wildlife v. Bernal,

204 F.3d 920 (9th Cir. 2000) .................................................................................................... 28

Defenders of Wildlife v. Jackson,

791 F. Supp. 2d 96 (D.D.C. 2011)............................................................................................ 21

Defenders of Wildlife v. Martin,

2007 WL 641439 (E.D. Wash. 2007) ....................................................................................... 28

Defenders of Wildlife v. Martin,

454 F. Supp. 2d 1085 (E.D. Wash. 2006)........................................................................... 21, 22

Forest Conservation Council v. Rosboro Lumber Co.,

50 F.3d 781 (9th Cir. 1995) ...................................................................................................... 28

League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Connaughton,

752 F.3d 755 (9th Cir. 2014) .................................................................................................... 19

Marbled Murrelet v. Pac. Lumber Co.,

83 F.3d 1060 (9th Cir. 1996) .................................................................................................... 28

Nat’l Wildlife Fed’n v. Burlington Northern Railroad,

23 F.3d 1508 (9th Cir. 1994) .................................................................................................... 28

Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv.,

422 F.3d 782 (9th Cir. 2005) .................................................................................. 19, 20, 27, 28

Native Ecosystems Council v. Krueger,

946 F. Supp. 2d 1060 (D. Mont. 2013)..................................................................................... 21

Natural Res. Def. Council v. Houston,

146 F.3d 1118 (9th Cir. 1998)................................................................................................... 21

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Or. Natural Desert Ass’n v. Tidwell,

2010 WL 5464269 (D. Or. Dec. 30, 2010)............................................................................... 28

Pac. Coast Fed’n of Fishermen’s Ass’ns v. U.S. Bureau of Reclamation,

138 F. Supp. 2d 1228 (N.D. Cal. 2001).................................................................................... 28

Pac. Rivers Council v. Thomas,

936 F. Supp. 738 (D. Idaho 1996) ............................................................................................ 21

Tenn. Valley Auth. v. Hill,

437 U.S. 153 (1978).................................................................................................................. 19

Wash. Toxics Coalition v. EPA,

413 F.3d 1024 (9th Cir. 2005) ............................................................................................ 21, 28

Wild Fish Conservancy v. Salazar,

628 F.3d 513 (9th Cir. 2010) .................................................................................................... 28

Winter v. Natural Res. Def. Council, Inc.,

555 U.S. 7 (2008)................................................................................................................ 19, 27

Statutes

16 U.S.C. § 1531........................................................................................................................... 20

16 U.S.C. § 1532........................................................................................................................... 22

16 U.S.C. § 1532(19).................................................................................................................... 21

16 U.S.C. § 1533(d)...................................................................................................................... 21

16 U.S.C. § 1536..................................................................................................................... 21, 22

16 U.S.C. § 1536(b)...................................................................................................................... 20

16 U.S.C. § 1536(d)...................................................................................................................... 21

16 U.S.C. § 1538(a) ...................................................................................................................... 22

16 U.S.C. § 1539..................................................................................................................... 21, 22

Other Authorities

Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Oregon 

Spotted Frog; Proposed Rule,

78 Fed. Reg. 53,538 (Aug. 29, 2013).......................................................................................... 6

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Endangered and Threatened Wildlife and Plants; Threatened Status for Oregon Spotted Frog; 

Final Rule,

79 Fed. Reg. 51,658, 51662, 51,706 (Aug. 29, 2014) ................................................................ 2

Regulations

50 C.F.R. § 17.21(c)...................................................................................................................... 21

50 C.F.R. § 17.3...................................................................................................................... 21, 22

50 C.F.R. § 17.31.......................................................................................................................... 21

50 C.F.R. § 17.32.......................................................................................................................... 22

50 C.F.R. § 402.02........................................................................................................................ 22

50 C.F.R. § 402.12........................................................................................................................ 20

50 C.F.R. § 402.13........................................................................................................................ 20

50 C.F.R. § 402.14........................................................................................................................ 20

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INTRODUCTION

The Oregon spotted frog has experienced significant declines in its range and abundance, 

resulting in it being listed as a threatened species under the Endangered Species Act (“ESA”) in 

August 2014. The decline of this species is an indicator of the degradation of wetland and 

aquatic habitats across the Pacific Northwest that can no longer support numerous wetlanddependent species. One of the areas in which this degradation is apparent is the Upper 

Deschutes Basin of central Oregon. Operation of Crane Prairie, Wickiup, and Crescent Lake 

reservoirs (sometimes collectively referred to herein as the “system”) has significantly altered the 

hydrology of the Upper Deschutes River, Little Deschutes River, and Crescent Creek, 

completely reversing the natural flow conditions in the basin. Extreme high and low flows, as 

well as sharp fluctuations in the flow from system operations, significantly impair habitat, kill 

frogs, kill frog eggs, delay frog maturity, and kill many fish species. Indeed, these alterations to 

the natural conditions in the basin are cited by the U.S. Fish and Wildlife Service (“USFWS”) as 

a primary cause of the Oregon spotted frogs’ decline and currently precarious status.

The Bureau of Reclamation (“BOR”) and the irrigation districts that operate the dams 

have been aware of the harm these facilities cause to spotted frogs for many years. Since 

receiving notice from the Plaintiffs of intent to sue under the ESA, BOR has begun consulting 

with USFWS, but not over the system’s ongoing operations. Rather, the consultation is confined 

to a very limited proposal by the irrigation districts to release a small, inadequate amount of 

water from Crescent Lake into the system. Moreover, the consultation process even on this 

limited basis is expected to take two to five years to produce a final biological opinion for BOR 

and a final habitat conservation plan for the irrigation districts. In the meantime, operation of 

Crane Prairie, Wickiup, and Crescent Lake reservoirs continues to cause irreversible harm to 

Oregon spotted frogs every season of every year, in violation of the ESA. 

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Plaintiffs in this consolidated action seek a preliminary injunction to adjust operation of 

these reservoirs in ways that will avoid and reduce harm to Oregon spotted frogs in the 

immediate future.1 Plaintiffs request that the Court adopt their expert recommendations for 

reservoir operations that will avoid and reduce harm to Oregon spotted frogs as described below.

STATEMENT OF FACTS

I. OREGON SPOTTED FROG IN THE UPPER DESCHUTES BASIN.

Historically, the Oregon spotted frog ranged from British Columbia to northeastern 

California, but human actions have degraded much of its habitat and now it is absent from 76-

90% of its former range. Endangered and Threatened Wildlife and Plants; Threatened Status for 

Oregon Spotted Frog; Final Rule, 79 Fed. Reg. 51,658, 51662, 51,706 (Aug. 29, 2014) (Ex. 1 to 

Declaration of Anna M. Sewell (“Sewell Decl.”)). The majority of remaining populations are 

small and isolated, with low genetic diversity and little opportunity for genetic exchange between 

populations, making them vulnerable to extirpation. Id. at 51,686-87, 51,706-07. Due to the 

decline in range and abundance, USFWS listed the Oregon spotted frog as a threatened species 

under the ESA on August 29, 2014. Id. at 51,658. 

Oregon spotted frog is the most aquatic native frog species in the Pacific Northwest, and 

these frogs rarely leave the water in any season. Id. at 51,661; Sewell Decl., Ex. 2 at 1. They 

use shallow water areas for breeding and rearing in spring; perennially deep, moderately 

vegetated pools in the summer; and perennial well-oxygenated water in winter. Sewell Decl., 

Ex. 1 at 51,661; Ex. 2 at 1; see also Declaration of Theresa L. Simpson In Support of Plaintiffs’ 

Joint Motion for Preliminary Injunction (“Simpson Decl.”) at ¶¶ 21-29. Because of their 

 1 Plaintiffs have standing to bring this action. Filed with this Motion and Memorandum are the 

Declarations of Jeffrey Perin, member of WaterWatch; Kimberley Priestly, staff member of 

WaterWatch; and Tierra Curry, member and staff member of Center for Biological Diversity.

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dependence on water, they must have aquatic connections between habitat areas and to disperse 

to other breeding sites. Sewell Decl., Ex. 2 at 1; Ex. 3 at 4. Rapid drops in water level can leave 

eggs, tadpoles, or frogs stranded on dry land, causing mortality. Sewell Decl., Ex. 2 at 1. 

Extremely low flows can force spotted frogs into smaller areas with less vegetative protection,

making them more vulnerable to predation.

The spotted frog’s habitat needs vary with its life history stages. Breeding occurs in 

spring, when females lay eggs in shallow water (less than 14 inches deep) with low or sparse 

vegetation and high exposure to the sun. Sewell Decl., Ex. 1 at 51,660-61; Ex. 2 at 1. These 

areas often consist of seasonally flooded wetlands that are connected to larger perennial water 

bodies so that tadpoles can move into deeper water as the seasonal wetlands dry out. Sewell 

Decl., Ex. 1 at 51,660-61; Ex. 2 at 1. If water levels drop too early or too quickly, eggs become 

desiccated or tadpoles become stranded, leading to high mortality and potential loss of the entire 

reproductive cohort for that year at that site. Sewell Decl., Ex. 1 at 51,660, Ex. 2 at 1; Ex. 3 at 5. 

Because breeding sites have such unique characteristics, there is high fidelity to breeding 

locations and limited ability to switch sites, making Oregon spotted frogs particularly vulnerable 

to modification of egg-laying sites. Sewell Decl., Ex. 1 at 51,661, 51,687. A stochastic event 

that affects a breeding site could significantly reduce the Oregon spotted frog population 

associated with that sub-basin. Id. at 51,687.

Eggs hatch within three to four weeks of egg-laying, and tadpoles move into deeper 

perennial water as summer progresses and water in wetlands recedes. Sewell Decl., Ex. 2 at 1. 

Tadpoles metamorphose into juvenile frogs during their first summer, usually within about four 

months. Sewell Decl., Ex. 2 at 1; Simpson Decl., ¶ 26. Spotted frogs take 3-4 years to reach 

breeding maturity. Simpson Decl., ¶ 22. In summer, after metamorphosis, juvenile and adult 

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frogs use deeper, permanent water in wetlands or creeks that have moderate to dense emergent 

vegetation where they feed, bask, and hide from predators. Sewell Decl., Ex. 1 at 51,661; Ex. 2 

at 1.

In fall, juvenile and adult frogs begin moving into overwintering habitat, which contains 

well-oxygenated water that persists through the winter, such as springs, side channels, and 

beaver ponds, and provides sheltering locations to protect frogs from predators and freezing. 

Sewell Decl., Ex. 1 at 51,661; Ex. 2 at 1. Spotted frogs often stay active during the first month 

after surface freeze-up, then have little movement in January and February before increasing 

activity again in March. Sewell Decl., Ex. 1 at 51,661. Like breeding habitat, the specific 

requirements for overwinter habitat do not allow for much flexibility in site selection. Sewell 

Decl., Ex. 3 at 4.

In Oregon, this species has been completely extirpated from the Willamette Valley and is 

found in just two of twelve historically-occupied sub-basins west of the Cascade Mountains. 

Sewell Decl., Ex. 1 at 51,663. East of the Cascades, it occurs in just eight sub-basins, including 

the Upper Deschutes River and Little Deschutes River sub-basins. Id. In the Upper Deschutes 

sub-basin, Oregon spotted frogs are found in high-elevation lakes and reservoirs, wetland ponds, 

and riverine wetlands and oxbows along the Deschutes River, with eighteen known breeding 

locations within this sub-basin. Id. at 51,665-66; Ex. 4 at 1.

The Upper Deschutes River between Wickiup Dam and Bend historically had many 

occupied breeding sites on floodplains along the river, but now, because of the dam system and 

its operation, this part of the river contains just six Oregon spotted frog breeding locations: Bull 

Bend, Dead Slough, LaPine State Park, Sunriver, Slough Camp, and the Old Mill Pond. Sewell 

Decl., Ex. 3 at 1; Ex. 5 at 1; Ex. 6 at 14-15. The Slough Camp location consists of two breeding 

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sites: a small marsh on the west side of the river and a larger wetland complex on the east side 

of the river. Sewell Decl., Ex. 5 at 1; Ex. 6 at 15. Except for the Sunriver site, each of these sites 

has fewer than 40 breeding females based on the most recent egg mass surveys. Sewell Decl., 

Ex. 5 at 1. These small populations are isolated and disconnected, and are thus at risk of 

extirpation. Sewell Decl., Ex. 3 at 1; Ex. 7 at 2. In contrast, the Sunriver site has more than 700 

breeding females because a system of weirs maintains consistent water levels from breeding 

through metamorphosis that allows for persistence of a robust population. Sewell Decl., Ex. 1 at 

51,670; Ex. 5 at 1; Ex. 6 at 14-15.

Oregon spotted frogs use Crane Prairie Reservoir and associated wetlands, and to a lesser 

extent Wickiup Reservoir and wetlands, for breeding, rearing, and overwintering. Sewell Decl., 

Ex. 4 at 1; Ex. 5 at 1. Crane Prairie Reservoir is just upstream of Wickiup Reservoir, with a 

short stretch of the Deschutes River connecting the two. Breeding sites have been documented 

in several areas around Crane Prairie Reservoir, with more than 100 egg masses found at two 

sites in 2015, but just five and ten egg masses observed at two other sites that same year. Sewell 

Decl., Ex. 4 at 1; Ex. 5 at 1. Some Oregon spotted frog breeding sites have been documented 

around Wickiup Reservoir and in the arm of the Deschutes River between Crane Prairie and 

Wickiup, with small numbers of egg masses located at each site. Sewell Decl., Ex. 4 at 1; Ex. 5 

at 1. Sites around Wickiup would likely have more frogs if not for the extreme alterations in 

reservoir levels that occur at Wickiup. Simpson Decl., ¶¶ 31, 32, 58, and 76.

In the Little Deschutes sub-basin, spotted frogs occur within wetland, pond, and riverine 

habitat along the Little Deschutes River and Crescent Creek, with twenty-three known breeding 

locations. Sewell Decl., Ex. 1 at 51,666. Five known sites exist along Crescent Creek, which 

range in size from five to sixty-two breeding females at each site. Sewell Decl., Ex. 5 at 1. 

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Below the confluence with Crescent Creek, the middle and lower portions of the Little Deschutes 

River have nine known sites, with seven sites containing between eight and twenty-three 

breeding females and the other two sites with eighty-eight and 101 breeding females. Id. at 1-2.

In both the Upper Deschutes and Little Deschutes sub-basins, Oregon spotted frog 

breeding begins as early as mid-March and rearing can last until mid-August. Sewell Decl., 

Ex. 8 at 5; Ex. 9; Simpson Decl., ¶¶ 24, 27, 39, 80. Frogs use summer foraging habitat during 

the dry season, but start moving toward overwintering habitat as early as mid-September so they 

are in their winter habitat before freezing begins. Simpson Decl., ¶ 28. More than 35,000 acres 

of wetlands in the Upper and Little Deschutes River sub-basins have been proposed as critical 

habitat for Oregon spotted frogs, and 76% of that acreage is affected by irrigation management. 

Sewell Decl., Ex. 7 at 1; Ex. 10 at 2.2

 See also Sewell Decl., Ex. 11 (satellite image of Oregon 

spotted frog sites in sub-basins). 

II. HARM TO SPOTTED FROGS FROM CRANE PRAIRIE, WICKIUP, AND 

CRESCENT LAKE DAMS.

There is no dispute that operation of Crane Prairie, Wickiup, and Crescent Lake dams 

harms Oregon spotted frogs in the Upper Deschutes and Little Deschutes sub-basins. USFWS, 

BOR, and the irrigation districts all recognize this fact. See Sewell Decl., Ex. 1 at 51,669-70; 

Ex. 2 at 2; Ex. 3 at 1-2; Ex. 4 at 2; Ex. 5; Ex. 6 at 14-15; Ex. 7; Ex. 8 at 2-3; Ex. 12; Ex. 13 at 1-

2. Crane Prairie and Wickiup reservoirs are managed together to store up to 250,000 acre-feet of 

water for irrigation purposes. Sewell Decl., Ex. 18 at 2-11. As stated in the final listing rule for 

Oregon spotted frog, “[i]n the Upper Deschutes River sub-basin in Oregon, regulated water 

releases from Crane Prairie and Wickiup Reservoirs result in extreme seasonal fluctuations in 

 2 USFWS issued a proposed rule designating critical habitat for Oregon spotted frog but has not 

yet issued a final rule. 78 Fed. Reg. 53,538 (Aug. 29, 2013). The proposed rule also described 

the habitat features important to Oregon spotted frog. Id. at 53,544.

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stream flows that have affected the amount of overwintering and breeding habitat available for 

Oregon spotted frogs.” Sewell Decl., Ex. 1 at 51,670. Historically, the Deschutes River had 

stable flows of about 730 cubic feet per second (cfs) in summer and 660 cfs in winter. Id. But 

water storage in the reservoirs during the winter, water releases in spring, and water diversions 

for irrigation result in extremely low flows of about 20-30 cfs from October to April in the 

Deschutes River below Wickiup Dam, which is just one-tenth of historic flows, and high summer 

flows of about 1,400 cfs that are double historic flows. Id.; Ex. 2 at 2; Ex. 6 at 14. These 

extreme flows and rapid fluctuations harm spotted frogs.3

Similarly, “Oregon spotted frog habitats in the Little Deschutes River sub-basin in 

Oregon are affected by regulated water management downstream of Crescent Lake Dam in 

Crescent Creek and the Little Deschutes River below the confluence with Crescent Creek.” 

Sewell Decl., Ex. 1 at 51,670. Crescent Lake Dam stores up to 86,000 acre-feet of water in 

winter and spring before releasing it for irrigation in summer, creating abnormally low flows in 

the rivers during the overwintering and breeding seasons. Sewell Decl., Ex. 2 at 2; Ex. 13 at 1-2. 

In the final listing rule, USFWS determined that hydrologic changes from water manipulation 

were a moderate to very high threat to Oregon spotted frogs in five occupied sub-basins, 

including the Upper Deschutes and Little Deschutes sub-basins. Sewell Decl., Ex. 1 at 51,672. 

A. Threats to Spotted Frogs Downstream of Wickiup Dam.

One of the primary threats to Oregon spotted frogs from water manipulation is impaired 

breeding. As described above, egg-laying sites are found in shallow water. If water levels are 

too high or too low before breeding occurs, it eliminates or delays the opportunity for breeding 

 3 It bears noting that all species, especially fish, are affected by the extreme fluctuations and that 

fish are particularly negatively affected by the fall draw-down in river flows and extremely low 

winter flows, necessitating “bucket-brigade” fish rescues and resulting in large fish die-offs in 

recent years.

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because these habitat sites are either flooded with too much water or completely dry, and thus 

not suitable for Oregon spotted frog egg-laying. Sewell Decl., Ex. 1 at 51,669; Ex. 4 at 2; Ex. 5 

at 1. Changes in water level during the breeding season are also detrimental. Egg masses are 

prone to desiccation if water levels recede, causing mortality of the stranded eggs or larvae. 

Sewell Decl., Ex. 1 at 51,660, 51,669; Ex. 2 at 1. Even after eggs hatch, tadpoles may die if 

water levels recede during the rearing period before metamorphosis into juvenile frogs. Sewell 

Decl., Ex. 1 at 51,669; Ex. 13 at 2, 4-5. Rising water levels during the breeding period are also a 

threat because they put egg masses in deeper water, making them more vulnerable to fish 

predation. Sewell Decl., Ex. 5 at 1.

Regulated water releases from Crane Prairie and Wickiup reservoirs result in extreme 

seasonal fluctuations downstream in the Deschutes River, with abnormally low flows from 

October to April and abnormally high flows in summer that affect breeding and overwintering 

habitat. Sewell Decl., Ex. 2 at 2; Ex. 6 at 14; Ex. 17; Simpson Decl., ¶¶ 34, 39-56. 

USFWS states that, “[s]ites located below Wickiup Reservoir do not experience natural 

hydrological fluctuation. Water releases from reservoir [sic] occur from April 15 to Oct 15. 

Therefore, breeding sites may not have enough water for egg mass development and

overwintering and dispersal are affected.” Sewell Decl., Ex. 5 at 1; see also Ex. 2 at 2 

(discussing adverse effects to breeding and overwintering habitat and harm to individual frogs in 

the form of desiccation, predation, and freezing from seasonal fluctuations in river flows below 

Wickiup). USFWS has further stated that, “[w]e must make water available at key times (i.e., 

earlier in spring or over winter) to offset the impact to OSF downstream of Wickiup Reservoir. 

Populations downstream of Wickiup Reservoir are most vulnerable during the storage season 

(Oct 15 to April 15).” Sewell Decl., Ex. 7 at 2. 

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Because irrigation releases from Wickiup Dam generally begin in mid-April, breeding 

habitat at several of the six spotted frog sites below Wickiup are often not inundated at the start 

of the breeding season, preventing suitable habitat for egg-laying. Sewell Decl., Ex. 1 at 51,670; 

Simpson Decl., ¶¶ 36-42. For instance, breeding habitat was all or mostly dry at the Bull Bend 

site in 2014 and at East Slough Camp in 2013 and 2015 before irrigation releases began, either 

preventing or delaying breeding at those sites. Sewell Decl., Ex. 5 at 1; Ex. 9; Ex. 10 at 3-5; Ex. 

14 at 2-4; see also Ex. 1 at 51,670 and Ex. 7 at 2 (noting that Slough Camp site is likely impacted 

by regulated flows each year). Even delayed breeding harms spotted frogs because it delays 

metamorphosis and results in younger and smaller frogs entering the winter season, which are 

less likely to survive the winter conditions. Simpson Decl., ¶ 40. The timing of irrigation 

releases also caused egg masses that were deposited at East Slough Camp in 2014 to become 

stranded and desiccated, resulting in mortality of the eggs. Sewell Decl., Ex. 5 at 1; Ex. 10 at 13-

14; Ex. 14 at 4-6. The Dead Slough and LaPine State Park breeding sites likewise “experience 

an unnatural hydroperiod due to regulated flows from Wickiup Reservoir.” Sewell Decl., Ex. 6 

at 14. Impacts to breeding habitat may cause the loss of an entire reproductive cohort at that site 

for that year. Sewell Decl., Ex. 1 at 51,669; Ex. 9. 

Changes in water levels between years also harm spotted frogs because they cannot use 

the same breeding sites year after year. Normally, female spotted frogs have high fidelity to 

breeding sites and use the same egg-laying locations each year. Sewell Decl., Ex. 1 at 51,687. 

Changes in water levels between years mean that breeding sites used one year may not have the 

appropriate water depth the next year, forcing female frogs to search for other sites. Simpson 

Decl., ¶¶ 25, 67-68. This requires expenditure of energy, decreases the chance of finding a mate 

in time to breed, and reduces breeding success. Id.

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The rapid draw down of the river in fall and storage of water in the reservoirs during 

winter also causes harm to Oregon spotted frogs below Wickiup Dam. For example, at the onset 

of the water storage season in October, water rapidly drains from East Slough Camp. Sewell 

Decl., Ex. 1 at 51,670; Ex. 6 at 15. The result is the loss of aquatic pathways from rearing and 

nonbreeding habitat to overwintering habitat, often either stranding frogs or forcing them to 

make over-land movement to overwinter habitat. Sewell Decl., Ex. 1 at 51,670; Simpson Decl., 

¶¶ 43-45. Plaintiffs’ expert observed this happening in Fall 2015 at the Slough Camp site, when 

a juvenile frog was stranded in a small pool that later went dry as water levels quickly receded in 

the river. Id. ¶ 45. Spotted frogs that move over land to find overwinter habitat must expend 

additional energy for this journey and are exposed to predators, increasing their chance of 

mortality. Id. ¶ 44-45. It is likely that some juvenile and adult spotted frogs do not survive the 

transition from rearing/nonbreeding habitat to overwinter habitat each year. Id. ¶ 45.

The low water levels downstream of Wickiup during winter also eliminate most 

overwintering habitat. Id. ¶ 46-50. The low flows are in the main channel of the river and 

cannot inundate riverine bench wetlands at the edge of the river that would provide good 

overwinter habitat. Id. Plaintiffs’ expert observed the increasing loss of overwinter habitat as 

water levels in the Deschutes River dropped during Fall 2015, resulting in very little suitable 

overwinter habitat available to Oregon spotted frogs by the end of the draw-down period. Id.

¶¶ 51-54. Similar observations were made in an agency email during a staged draw-down in 

2014. See Sewell Decl., Ex. 15. The limited amount of suitable overwinter habitat results in the 

deaths of some Oregon spotted frogs that cannot find suitable habitat, and forces others into 

small areas within the main river channel that are marginal habitat and have a high risk of 

predation. Simpson Decl., ¶¶ 51-54; Sewell Decl., Ex. 1 at 51,669. USFWS has stated that 

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increasing winter flows below Wickiup Dam to provide overwintering habitat for Oregon spotted 

frogs along the Deschutes River is necessary to reduce harm to the frogs, and recommends more 

than 500 cfs for winter flows below Wickiup Dam. Sewell Decl., Ex. 9; Ex. 12 at 2; Ex. 15 at 2; 

see also Simpson Decl., ¶ 54 (noting that higher flows in winter are critical to provide suitable 

overwinter habitat). 

Finally, the extreme fluctuations in river flows below Wickiup Dam have significantly 

altered the channel morphology. Water flows that rapidly rise in spring when water is released 

from the reservoirs, and then suddenly drop again in fall when water storage begins, have eroded 

the streambank, destabilized bank vegetation, and caused loss of sinuosity. Simpson Decl., ¶ 55. 

The sediment eroded from the banks is then deposited on point bars along the channel. Id. This 

deposition of sediment has filled in or cut off wetlands along the channel edge, contributing to 

habitat loss by blocking aquatic pathways to off-channel rearing habitat and overwintering 

habitat along the river. Id. 

Continuing impacts to Oregon spotted frogs below Wickiup Dam are particularly 

detrimental because of the small size of, and large distance between, these sub-populations. 

USFWS stated that “[e]xtant populations on the Deschutes River below the dam are small, 

extremely disjunct (i.e., separated by distances over 10 miles) and at risk of extirpation.” Sewell 

Decl., Ex. 7 at 2. As explained in the final listing rule, small, isolated populations of Oregon 

spotted frogs are vulnerable to extirpation because they have little genetic diversity, could be 

eliminated by a single stochastic event or chronic source of mortality, and are unlikely to be 

recolonized due to their distance from other breeding sites. Sewell Decl., Ex. 1 at 51,659, 

51,686-87, 51,707; Ex. 8 at 2. USFWS noted that the East Slough Camp site in particular is a 

“key population” of spotted frog that “is critical to having frogs persist in this segment of the 

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Deschutes River.” Sewell Decl., Ex. 9. Extirpation of frogs from one or more sites would put 

the Upper Deschutes sub-basin population at further risk of extinction. Simpson Decl., ¶ 56. 

B. Specific Threats to Spotted Frogs Around Crane Prairie and Wickiup Reservoirs.

Similar adverse impacts occur around Crane Prairie and Wickiup reservoirs due to 

fluctuations in surface water elevation, causing direct harm to Oregon spotted frogs. See Sewell 

Decl., Ex. 17 (graphs showing changes in reservoir elevation 2005-2014). USFWS has stated 

that “management of regulated water in Crane Prairie and Wickiup Reservoirs results in 

unnatural wetland hydroperiods along the margins of both reservoirs that affects the availability 

of breeding habitat for Oregon spotted frog.” Sewell Decl., Ex. 6 at 14. In another document, 

the agency stated that, “[a]nnual and seasonally abrupt changes in water levels within the 

reservoirs affect OSF breeding habitat at the edges of the reservoirs. Wetlands may be 

completely inundated with water during the breeding season whereby masses are in deep water 

that is accessible by fish or egg masses are in extreme shallows and may be desiccated when 

water level suddenly drops.” Sewell Decl., Ex. 5 at 1; Simpson Decl., ¶¶ 63-68 (describing harm 

to breeding habitat from changing water levels in reservoirs). Indeed, USFWS documented 

stranded egg masses in 2014 and 2015 in wetlands along the Deschutes River between Crane 

Prairie and Wickiup reservoirs due to receding water levels during the breeding season. Sewell 

Decl., Ex. 5 at 1.

Rapid changes in water levels at other times of the year also harm spotted frogs. Release 

of water from the reservoirs for irrigation during the spring and summer lowers water levels 

before tadpoles have morphed into juvenile frogs, causing tadpoles either to be stranded and die 

or to move into deeper open water in the reservoir, increasing their risk of predation by fish. 

Simpson Decl., ¶¶ 69-74; Sewell Decl., Ex. 1 at 51,660; 51,669. After metamorphosis, 

continued lowering of water levels in the reservoirs for irrigation deliveries dries out summer 

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foraging habitat, which forces juvenile and adult frogs to expend energy to move to the small 

amount of low water refugia that exists, or into open water of the reservoir, making them more 

vulnerable to predators and increasing mortality. Simpson Decl., ¶¶ 69-74; Sewell Decl., Ex. 1 

at 51,669.

Similarly, low reservoir levels in the fall at the end of the irrigation season leaves suitable 

overwintering habitat dry at a time when spotted frogs are starting to move into that habitat. 

Simpson Decl., ¶¶ 75-77. In most years, both Crane Prairie and Wickiup reservoirs are so low in 

summer and early fall that almost all wetland habitat around their edges is dry and unusable by 

spotted frogs. Id. In sum, the extreme fluctuations in reservoir water levels harms Oregon 

spotted frogs during each life history season.

C. Threats to Spotted Frogs Downstream of Crescent Lake Dam.

In the Little Deschutes River sub-basin, Oregon spotted frog habitat is similarly “affected 

by regulated water management downstream of Crescent Lake Dam in Crescent Creek and the 

Little Deschutes River below the confluence with Crescent Creek.” Sewell Decl., Ex. 1 at 

51,670. Water is stored in Crescent Lake from November through March, with typical flows 

below the dam of just 5 cfs. Sewell Decl., Ex. 13 at 1. Small releases begin in April after 

breeding would normally begin, with the majority of irrigation releases from Crescent Lake 

typically occurring later, from June to October, reaching more than 100 cfs in July through 

September. Id. at 1-2. Because most water is released well after the spotted frog breeding 

season, breeding habitat remains dry and/or egg mass desiccation occurs along the creek and 

rivers. Sewell Decl., Ex. 1 at 51,670; Ex. 5 at 1-2. Egg mass stranding has been observed on 

several occasions along Crescent Creek and the Little Deschutes River below Crescent Creek 

prior to irrigation water releases. Sewell Decl., Ex. 1 at 51,670; Ex. 5 at 1-2; Ex. 13 at 1-2; 

Ex. 14 at 1. Low winter flows below Crescent Lake Dam beginning in October also limit 

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overwintering habitat along Crescent Creek and the Little Deschutes River. Sewell Decl., Ex. 5 

at 1-2; Ex. 13 at 1-2.

In light of the known threats to Oregon spotted frogs in the Little Deschutes sub-basin 

from operation of Crescent Lake Dam, USFWS noted the need to adjust flows from Crescent 

Lake to ensure that breeding and rearing habitat along Crescent Creek and the Little Deschutes 

River are inundated from the start of spotted frog breeding through metamorphosis. Sewell 

Decl., Ex. 12 at 2; Ex. 15 at 1. In addition, an increase in winter flows from Crescent Lake is 

needed to allow water to remain in oxbows along the rivers where Oregon spotted frogs may 

overwinter. Id.

BOR and the irrigation districts agreed to release water from Crescent Lake at the rate of 

30 cfs starting in February 2015 to improve Oregon spotted frog breeding habitat along Crescent 

Creek and the Little Deschutes River. Sewell Decl., Ex. 13; Ex 16 at 1.4

 Surveys completed in 

April 2015 along Crescent Creek documented egg masses at six sites. Sewell Decl., Ex. 16 at 5-

6. Most eggs hatched, but desiccation of two egg masses still occurred at two of the six sites due 

to inadequate flows. Id. During draw-down of the rivers in Fall 2015, Plaintiffs’ expert 

observed the rapid reduction in overwintering habitat along Crescent Creek and the Little 

Deschutes River as water levels dropped and suitable wetland or off-channel habitat dried out. 

Simpson Decl., ¶¶ 79-80, 84. Plaintiffs’ expert also observed stranded frogs, likely juveniles, in 

the Little Deschutes during this time. Id. ¶ 85-86, 88. As described above, the low winter flows 

increase mortality of spotted frogs because they either cannot find suitable overwinter habitat, or 

are forced into small areas with increased risk of predation. Id. ¶ 88-89. Thus, despite 

increasing flows to 30 cfs in Spring 2015, harm to frogs still occurred below Crescent Lake due 

 4 This is part of the very limited proposal on which BOR has agreed to consult.

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to egg mass desiccation and loss of overwintering habitat. Id. ¶ 90. 

III. ESA CONSULTATION OVER OPERATION OF THESE FACILITIES.

BOR owns, and therefore has authority over, operation of Crane Prairie and Wickiup 

dams and reservoirs, but has transferred daily operation and maintenance of the facilities to 

Central Oregon and North Unit Irrigation Districts. Sewell Decl., Ex. 18 at 2-1 to 2-5. In 2003, 

well before the Oregon spotted frog was listed as a threatened species, BOR consulted with 

USFWS and NOAA Fisheries over impacts to ESA-listed species from the “Continued Operation 

and Maintenance of the Deschutes River Basin Projects.” Id. at 1. This consultation covered 

operation and maintenance of Crane Prairie and Wickiup dams and reservoirs, among others. Id.

at 2-1 to 2-5.5

The “Proposed Action” in BOR’s 2003 Biological Assessment (“BA”) was “the 

continued operation and maintenance of Reclamation’s project facilities throughout the 

Deschutes River basin as described in Chapter 2. Subsequent consultations will be initiated if 

significant changes are anticipated in future project O&M [operations and maintenance] 

procedures, additional listings of species occur within the Deschutes River basin potentially 

affected by O&M activities, or other criteria described in 50 CFR 402.16 apply.” Sewell Decl., 

Ex. 18 at 1-1 (emphasis added).

Chapter two of the BA reiterated that the consultation “involves O&M activities 

associated with those facilities for which Reclamation has authority to operate, largely defined 

by Reclamation ownership. Storage, diversion, and delivery facilities comprising the proposed 

action include . . . Crane Prairie Dam and Reservoir [and] Wickiup Dam and Reservoir,” among 

other facilities. Id. at 2-1. Specifically for Crane Prairie and Wickiup, the BA’s proposed action 

 5 Crescent Lake Dam was not included in the 2003 consultation because it is not owned by BOR 

but, rather, is owned and operated by Tumalo Irrigation District. Sewell Decl., Ex. 19 at 5.

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covered the following project operations:

• Storage in and release of water from Crane Prairie Dam and Reservoir for 

diversion (an interrelated and interdependent action is diversion of storage water 

by private facilities);

• Storage in and release of water from Wickiup Dam and Reservoir for diversion;

and

• Diversion of Wickiup Reservoir storage water by North Unit Headworks and 

Main Canal (an interrelated and interdependent action is the diversion of natural 

flow water).

Id. at 2-8. The BA analyzed the hydrologic effects of BOR’s project operations on five species 

listed under the ESA at that time by comparing water flows from the current operations with 

water flows that would occur without BOR facilities operating—i.e., if the reservoirs were runof-the-river and just passed natural flows. Id. at 1-8, 6-2 to 6-4.

In addition to BOR’s consultation with USFWS and NOAA, eight central Oregon 

irrigation districts, including Defendants and Intervenors in this lawsuit, have been seeking ESA 

incidental take permits from USFWS and NOAA that would authorize “take” of seven ESAlisted species caused by otherwise lawful actions conducted by the irrigation districts. Sewell 

Decl., Ex. 8 at 2. These permits would be issued as part of a habitat conservation plan (“HCP”) 

under Section 10 of the ESA that would attempt to minimize and mitigate effects of the proposed 

incidental take on the covered species. Id. Other agencies and organizations have been part of 

this HCP process for years, including Plaintiff WaterWatch. Id.; Declaration of Kimberly 

Priestly In Support of Motion for Preliminary Injunction (“Priestley Decl.”), ¶¶ 5, 7, 10-11. 

Oregon spotted frog is one of the seven species at issue in the HCP due to the acknowledged 

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impacts to this species from irrigation activities in the upper Deschutes Basin. Sewell Decl., 

Ex. 8 at 2. Despite the fact that the Deschutes Basin HCP process began in March 2008—eight 

years ago—it is expected to take another five years before it is completed. Sewell Decl., Ex. 19 

at 5.6 

After the Oregon spotted frog was listed as a threatened species in August 2014, no 

immediate changes were made to the operation of Crane Prairie, Wickiup or Crescent Lake dams 

to benefit the species other than the increase in flows in Crescent Creek in Spring 2015, as 

described above. See supra p. 13. Nor did BOR reinitiate the 2003 consultation, as the 2003 BA 

stated must happen if a new species was listed. Sewell Decl., Ex. 18 at 1-1. Therefore, in July 

2015, almost a year after the Oregon spotted frog was listed as threatened, Plaintiff Center for 

Biological Diversity sent a letter to BOR notifying the agency of the Center’s intent to sue under 

the ESA unless BOR immediately initiated consultation with USFWS and implemented actions 

to protect Oregon spotted frogs from further harm during that consultation process. Sewell 

Decl., Ex. 20. Plaintiff WaterWatch sent a similar letter to BOR and the irrigation districts in 

August 2015, identifying the need to make changes to operations to protect the Oregon spotted 

frog pending a new BOR consultation and an HCP for the districts. Sewell Decl., Ex. 21. 

The following month, the irrigation districts sent a letter to BOR stating that they 

intended to implement various conservation measures to benefit Oregon spotted frogs during the 

five-year completion period for the HCP. Sewell Decl., Ex. 19 at 3-9. Because those measures 

included some changes to the operation of Crane Prairie and Wickiup reservoirs, which require 

 6 In fact, WaterWatch has been participating in Deschutes Basin work groups and cooperative 

efforts for the last ten years in an effort to address the needs of fish, fishing, wildlife, and 

recreation businesses along with other water uses in the Basin. Priestly Decl., ¶¶ 5, 11-12. 

WaterWatch has been advocating for water conservation measures that would increase efficiency 

of water use, and it appears there is significant room to increase efficiency in this basin that 

would provide enough water for all resources and all users. Sewell Decl., Ex. 23.

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BOR approval, BOR initiated consultation with USFWS over BOR’s approval of those 

operational changes in a September 2015 letter. Id. at 1-2. BOR proposed a schedule that would 

complete consultation by July 2017. Id. at 1, 10. BOR chose to initiate this very narrow 

consultation rather than reinitiate the prior consultation from 2003, which would have had to 

assess impacts from these changes on all listed species in the area.

The interim conservation measures proposed by the irrigation districts included 

provisions that related to how much water is stored in Crane Prairie Reservoir and the rate at 

which water can be released from Crane Prairie. Id. at 6. The provisions set a maximum of 

50,000 acre-feet of water that can be stored in Crane Prairie, and a minimum of 5,000 acre-feet 

that will remain in the reservoir at all times, allowing a fluctuation of 45,000 acre-feet. Id. 

Another provision limited the release of water from Crane Prairie after July 16 to 0.1 foot change 

in water surface elevation per 24-hour period, but would not apply if there is insufficient water in 

Wickiup Reservoir to meet irrigation demands. Id. There were no requirements for maximum or 

minimum water storage in Wickiup Reservoir or limitations on the rate of water releases or rates 

of draw-down. Id. at 7. The measures also included the same minimum flow of 30 cfs in 

Crescent Creek used in Spring 2015. Id. There were no measures at all related to flows in the 

Deschutes River downstream of Wickiup Dam. Id. at 6-9. Finally, the letter stated that a 

monitoring and adaptive management program would be developed (with no specifics), and 

adaptive management “may” be used to modify releases of water from Crescent Lake Reservoir. 

Id. at 9.

In response to BOR’s request for initiation of consultation on this very narrow proposal, 

USFWS replied with a letter stating that the schedule for consultation BOR proposed seemed 

achievable, and that the proposed conservation measures were “a step in the right direction” to 

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address impacts to the spotted frog. Sewell Decl., Ex. 22. A “step in the right direction” does 

not constitute proper consultation on the operation of the Upper Deschutes reservoir and dam 

system as done in 2003 and does little, if anything, to avoid the continuing harm to Oregon 

spotted frogs. Plaintiffs therefore seek a preliminary injunction to achieve necessary protections 

starting this breeding season, the first week of April, 2016, and continuing until completion of a 

Biological Opinion covering the entire operation and a Habitat Conservation Plan.

ARGUMENT

I. IN ESA CASES THE STANDARD FOR INJUNCTIVE RELIEF REQUIRES THAT

THE EQUITIES TIP IN FAVOR OF THE SPECIES.

A plaintiff seeking a preliminary injunction must show “that he is likely to succeed on the 

merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the 

balance of equities tips in his favor, and that an injunction is in the public interest.” League of 

Wilderness Defenders/Blue Mountains Biodiversity Project v. Connaughton, 752 F.3d 755, 759 

(9th Cir. 2014) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). 

In ESA cases, however, courts may not apply traditional equitable balancing because the 

“plain intent of Congress in enacting the statute was to halt and reverse the trend toward species 

extinction, whatever the cost,” and thus “the balance has been struck in favor of affording 

endangered species the highest of priorities . . . .” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184, 

194 (1978). Accordingly, the Ninth Circuit recently reaffirmed that in ESA cases, “the equities 

and public interest factors always tip in favor of the protected species.” Cottonwood Envtl. Law 

Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1091 (9th Cir. 2015) (emphasis added). “[C]ourts may 

not use equity’s scales to strike a different balance.” Nat’l Wildlife Fed’n v. Nat’l Marine 

Fisheries Serv., 422 F.3d 782, 793 (9th Cir. 2005). Because Plaintiffs are likely to succeed on 

the merits and likely to suffer imminent irreparable harm, injunctive relief is warranted here. 

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II. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS.

A. The ESA Requires Federal Agencies to Ensure Their Actions Do Not Jeopardize 

Listed Species or Adversely Modify Critical Habitat.

The purpose of the ESA is to conserve species so they recover and are no longer in 

danger of going extinct. 16 U.S.C. § 1531. In accordance with this purpose, federal agencies 

must insure that any actions they take are not likely to jeopardize the continued existence of a 

threatened or endangered species or adversely modify the species’ critical habitat. Id. § 

1536(a)(2). To insure compliance with this substantive duty, the ESA imposes procedures 

requiring a federal agency to consult with USFWS or National Marine Fisheries Service over any 

action authorized, funded, or carried out by the agency that may affect a threatened or 

endangered species. Id.; Nat’l Wildlife Fed’n, 422 F.3d at 790. 

During the consultation process, the action agency, here BOR, prepares a BA to 

determine if the action is likely to adversely affect the listed species. 50 C.F.R. § 402.12. If the 

BA concludes that the action is “not likely to adversely affect” the species and the Service 

agrees, the Service issues a “letter of concurrence” and consultation is complete. Id. §§ 

402.13(a), 402.14(b). If, however, the BA concludes that the action is “likely to adversely 

affect” the species, the Service completes a biological opinion to determine if the adverse effects 

are likely to jeopardize the continued existence of the species or adversely modify its critical 

habitat. Id. § 402.14(g)(4). If jeopardy or adverse modification is found, the Service dictates 

reasonable and prudent alternative actions that could go forward without causing such result. 16 

U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14 (g)(5), (h)(3). 

An action agency’s responsibility does not end with the initiation of consultation. During 

the consultation process, an agency cannot make any irreversible or irretrievable commitment of 

resources with respect to the agency action which has the effect of foreclosing the formulation or 

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implementation of any reasonable and prudent alternative measures. 16 U.S.C. § 1536(d). 

Courts have interpreted this provision to require protection of the species from an action’s 

adverse impacts pending completion of consultation. See, e.g., Natural Res. Def. Council v. 

Houston, 146 F.3d 1118, 1128 (9th Cir. 1998) (BOR violated Section 7(d) by executing water 

service contracts prior to completion of consultation); Pac. Rivers Council v. Thomas, 936 F. 

Supp. 738, 745-50 (D. Idaho 1996) (Section 7(d) required prohibiting livestock grazing until 

consultation was complete). 

Furthermore, an agency cannot take any actions that would jeopardize the survival and 

recovery of the species pending the completion of consultation. Wash. Toxics Coalition v. EPA,

413 F.3d 1024, 1034-35 (9th Cir. 2005); Defenders of Wildlife v. Martin, 454 F. Supp. 2d 1085, 

1095-97 (E.D. Wash. 2006). Where an agency wants to continue ongoing actions during the 

consultation process, it has the burden of proving those actions are non-jeopardizing to the 

species. Wash. Toxics Coal., 413 F.3d at 1035; Defenders of Wildlife v. Jackson, 791 F. Supp. 

2d 96, 113-14 & n.21 (D.D.C. 2011); Native Ecosystems Council v. Krueger, 946 F. Supp. 2d 

1060, 1076 (D. Mont. 2013).

The ESA also prohibits “take” of a threatened or endangered species, and this applies to 

“any person,” not just federal agencies. 16 U.S.C. §§ 1538(a)(1)(B), 1533(d); 50 C.F.R. §§ 

17.21(c), 17.31. “Take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or 

collect a species, where “harm” includes significant habitat modification or degradation that kills 

or injures wildlife by significantly impairing essential behaviors such as breeding, feeding, and 

sheltering. 16 U.S.C. § 1532(19); 50 C.F.R. § 17.3. The Service, however, can authorize “take” 

of a protected species if that take is incidental to an otherwise lawful activity and will not 

jeopardize the species. 16 U.S.C. §§ 1536 (b)(4), 1539(a)(1)(B). Such authorization occurs 

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through an incidental take statement within a biological opinion, or through an incidental take 

permit issued as part of a habitat conservation plan. Id. §§ 1536(b)(4), 1539(a)(2); 50 C.F.R. §§ 

402.14 (i), 17.32(b). Until such authorization is issued, the parties are liable for any take that 

occurs. 16 U.S.C. § 1538(a)(1)(B); see also Ctr. for Biol. Diversity v. BLM, 698 F.3d 1101, 

1108, 1115 (9th Cir. 2012); Defenders of Wildlife v. Martin, 454 F. Supp. 2d at 1098.

B. BOR and the Irrigation Districts are Violating the ESA with their Operation of 

Crane Prairie and Wickiup Dams and Reservoirs.

As described above and in the declaration of Oregon spotted frog biologist Theresa 

Simpson, BOR and the irrigation districts’ operation of Crane Prairie and Wickiup reservoirs 

significantly impairs Oregon spotted frog breeding, rearing, summer foraging, and overwintering 

habitat around the reservoirs and downstream along the Deschutes River. Even with the minor 

adjustments to operation of Crane Prairie reservoir outlined in the irrigation districts’ interim 

conservation measures, these facilities will continue to harm spotted frogs and their habitat 

during the ESA consultation and HCP process. Thus, BOR is violating ESA Sections 7(a)(2) 

and 7(d), and both BOR and the irrigation districts are violating ESA Section 9, with their 

continued operation of these facilities pending completion of consultation and the HCP. 

Under the ESA, jeopardy to a species occurs if an action “reasonably would be expected, 

directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a 

listed species in the wild by reducing the reproduction, numbers, or distribution of that species.” 

50 C.F.R. § 402.02. “Take” occurs when any individual of a protected species is killed or 

harmed, including from habitat modification or degradation that significantly impairs breeding, 

feeding, or sheltering behaviors. 16 U.S.C. § 1532(19); 50 C.F.R. § 17.3. As demonstrated by 

Plaintiffs’ evidence, and described in detail above, Defendants’ operation of Crane Prairie and 

Wickiup reservoirs both directly and indirectly kills and injures spotted frogs and thus reduces 

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the reproduction, numbers, and distribution of Oregon spotted frog in the Upper Deschutes River 

sub-basin. See above; Sewell Decl., Exs. 1-17; Simpson Decl., ¶¶ 33-90.

Specifically, reservoir operations impair spotted frog breeding in many ways, including 

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. See above; Sewell Decl., Exs. 1-17; 

Simpson Decl., ¶¶ 33-75. USFWS documented stranded egg masses in 2014 and 2015 near 

Wickiup Reservoir due to the timing and extent of irrigation releases from Wickiup. Below 

Wickiup Dam, USFWS observed “take in the form of mortality” from stranded egg masses at 

East Slough Camp in 2014 and dry breeding habitat that same year at the Bull Bend site, as well 

as dry breeding habitat in 2013 and 2015 at the East Slough Camp site, because irrigation 

releases had not begun. See above; Sewell Decl., Ex. 9; Ex. 10 at 3-5, 13-14; Ex. 14 at 2-6. In 

Crane Prairie Reservoir, BOR data shows that in most years, including 2015, reservoir water 

levels rise and/or fall by more than 12 inches during the breeding season, which would likely 

cause flooding or desiccation of egg masses. Simpson Decl., ¶ 65. Preventing or even delaying 

breeding harms spotted frogs. Sewell Decl., Ex. 1 at 51,669; Simpson Decl., ¶ 39.

Operations of Crane Prairie and Wickiup impair feeding and sheltering behaviors of 

spotted frogs during other seasons. During the rearing and summer foraging seasons, reservoir 

levels drop, causing tadpoles, juveniles, and adult frogs to be stranded or to move into 

unprotected open water or low-water refugia areas that have less food availability and higher risk 

of predation, increasing mortality. Simpson Decl., ¶¶ 60-63, 69-74; Sewell Decl., Ex. 1 at 

51,669. All suitable rearing and summer foraging habitat around the edge of Crane Prairie is 

often dry before the end of the metamorphosis period, and much earlier at Wickiup. Simpson 

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Decl., ¶¶ 70, 73.

Below the reservoirs, rapid lowering of river flows in fall and winter kills or injures 

spotted frogs by stranding some juveniles and adults and leaving almost all overwinter habitat 

dry, as observed by Plaintiffs’ expert in the Fall of 2015. Simpson Decl., ¶¶ 43-54, 84-89; 

Sewell Decl., Ex. 1 at 51,670; Ex. 2 at 2; Ex. 5 at 1; Ex. 6 at 14-15; Ex. 7 at 2. When river flows 

drop, the primary overwinter habitat available is in the main river channel, which has less cover 

and higher risk of predation, increasing winter mortality. Simpson ¶¶ 51-54. Indeed, USFWS 

has stated that water must be made available earlier in spring and over winter below Wickiup 

Dam, and has recommended winter flows of more than 500 cfs to provide overwinter habitat—a 

16-fold increase over the 20-30 cfs that currently occurs in winter. Sewell Decl., Ex. 7 at 2; Ex. 

15 at 2.

The irrigation districts’ interim conservation measures will do little to alleviate the harm 

to spotted frogs from operation of Crane Prairie and Wickiup reservoirs. The measures contain 

some provisions related to Crane Prairie Reservoir, but will still allow harm to occur there. For 

instance, water levels in Crane Prairie can rise up to two feet during the breeding season, 

allowing for flooding of egg masses; water levels can start dropping July 16, which is about a 

month before the end of the metamorphosis period; water levels can drop below the minimum 

needed to inundate edge habitat during the summer and early fall, forcing frogs to move into 

open-water or low-water refugia; and the rate of water releases after July 15 is limited to 0.1 foot 

change in water surface elevation per day only if there is enough water in Wickiup to meet 

irrigation demands. Sewell Decl., Ex. 19 at 6. Thus, harm to spotted frogs from fluctuating 

water levels in Crane Prairie is still likely to occur during the breeding, rearing, and summer 

foraging seasons. Moreover, the measures contain no provisions regarding water levels in 

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Wickiup Reservoir to protect frogs using habitat around that reservoir, nor any measures 

regarding flows below Wickiup to reduce harm to spotted frogs along the Deschutes River. Id. at 

8. Even USFWS did not acknowledge these measures were sufficient to minimize harm to 

spotted frogs in the interim, stating they were just “one step in the right direction.” Sewell Decl., 

Ex. 22.

Accordingly, operation of Crane Prairie and Wickiup reservoirs will continue to “take” 

Oregon spotted frogs during the consultation and HCP process, in violation of Section 9.

Furthermore, this harm to frogs reduces the reproduction, number, and distribution of 

frogs in the Upper Deschutes River sub-basin. Given that many of the spotted frog sites in this 

sub-basin already are at high risk of extirpation due to their small size and distance apart, see 

Sewell Decl., Ex. 1 at 51,686-87; Ex. 7 at 2; Ex. 8 at 2; Ex. 9; Simpson Decl., ¶¶ 56, 90, BOR 

has not proven that ongoing operations of Crane Prairie and Wickiup are non-jeopardizing and 

can continue pending completion of consultation, in violation of ESA Sections 7(a)(2) and 7(d).

C. The Irrigation Districts are Violating the ESA with their Operation of Crescent 

Lake Dam and Reservoir.

The Crescent Lake Dam and Reservoir were originally built and owned by BOR. In the 

1990s, ownership and operation of the dam, according to BOR documents, appears to have been 

turned over to defendant Tumalo Irrigation District (“TID”). Similar to the situation with Crane 

Prairie and Wickiup operations, Crescent Lake is operated solely for irrigation and has 

substantially altered natural flows in Crescent Creek and the Little Deschutes tributary to the 

Deschutes River, with very high flows during the summer season and sharp drops in the fall,

ending with very low flows in the winter. Simpson Decl., ¶¶ 81-90. While there are numerous 

sites along Crescent Creek and the Little Deschutes river occupied by spotted frogs, the timing 

and rate of water release for irrigation are adversely affecting availability, suitability, quantity 

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and connectivity of that habitat and are harming frogs. Simpson Decl., ¶ 90; Sewell Decl., Ex. 1 

at 51,670; Ex. 5 at 1-2; Ex. 13 at 1-2. USFWS has noted the need for higher flows below 

Crescent Lake Dam to avoid harm to spotted frogs during breeding and overwintering. Sewell 

Decl., Ex. 12 at 2; Ex. 15 at 1.

For example, in the Fall of 2015, Plaintiffs’ expert observed that with river flow at 140 

cfs at the LAPO gauge on the Little Deschutes River near LaPine State Park, most wetland 

breeding habitat along the Little Deschutes at the Casey Tract habitat site was dry. Simpson 

Decl., ¶¶ 87-89. In reviewing historic data, it is clear that flows are rarely higher than 140 cfs. 

Simpson Decl., ¶ 80. Plaintiffs’ expert also observed that low flows are generally present at the 

start of breeding season, leaving most breeding habitat in the Crescent Creek and Little 

Deschutes areas dry and unusable for breeding. Simpson Decl., ¶ 81. Delayed breeding harms 

spotted frogs because it delays tadpole development and metamorphosis and thereby decreases 

juvenile survival. Simpson Decl., ¶ 40.

Low river flows observed during the fall draw down and early winter in 2015 show 

reduced amount and quality of overwinter habitat for spotted frogs. Plaintiffs’ expert observed 

spotted frogs stranded in marginal overwinter habitat in the Fall of 2015 at sites along the Little 

Deschutes river. Simpson Decl., ¶¶ 85-89. Those frogs were highly likely to have increased 

mortality due to freezing and anoxia. Id. Plaintiffs’ expert predicted, based upon her knowledge 

of habitat in the area, that shallower sites like the Casey Tract pools and Leona Slough were also 

likely dry and drying, with inadequate overwinter habitat and likely high mortality. Id. All offchannel habitat and nearly all river edge habitat was dry and usuable at the times observed. Id. 

Highly variable flows recorded at the LAPO gauge between December 9, 2015 and January 26, 

2016, similar to variations recorded in every year, mean that spotted frogs forced to use the river 

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channel to overwinter are required to move around frequently, expending a great deal of energy 

and exposing them to higher risk of predation, both of which increase mortality. Simpson Decl., 

¶ 88. 

Moreover, despite implementing releases of 30 cfs from Crescent Lake, Plaintiffs’ expert 

observed the stranding and drying effects in the Fall of 2015 and the federal agencies 

documented egg mass desiccation in the Spring of 2015. Sewell Decl., Ex. 16 at 5-6. The very 

limited proposal does little, if anything, to stem the harm set forth above.

In sum, the effects of Crescent Lake reservoir management are harming Oregon spotted 

frog breeding, rearing and overwintering, limiting their reproductive success and increasing 

mortality along Crescent Creek and the Little Deschutes River. Simpson Decl., ¶ 90.

III. THE CONTINUED OPERATION OF CRANE PRAIRIE, WICKIUP, AND 

CRESCENT LAKE DAMS AND RESERVOIRS IS LIKELY TO CAUSE IMMINENT,

IRREPARABLE HARM TO OREGON SPOTTED FROGS.

Plaintiffs have established they are likely to win on the merits. They also have shown 

that irreparable harm to the Oregon spotted frog is ongoing and will continue due to the 

operation of these dams and reservoirs. That is all that is required to obtain a preliminary 

injunction under the ESA. As noted above, in ESA cases, “the equities and public interest 

factors always tip in favor of the protected species.” Cottonwood Envtl. Law Ctr., 789 at 1091 

(emphasis added). “[C]ourts may not use equity’s scales to strike a different balance.” Nat’l 

Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 422 F.3d at 793. Thus, a preliminary injunction 

is necessary here. 

A. In ESA Cases, A Likely Ongoing or Future Violation Meets the Test of 

Irreparable Harm for Injunctive Relief.

To meet the irreparable harm factor, a plaintiff must show that irreparable injury is likely 

in the absence of an injunction. Winter, 555 U.S. at 22. “In light of the stated purpose of the 

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ESA in conserving endangered and threatened species and ecosystems that support them, 

establishing irreparable injury should not be an onerous task for plaintiffs.” Cottonwood Envtl. 

Law Ctr., 789 F.3d at 1091.7 In ESA Section 9 cases, this test is met if plaintiffs show “a 

violation of the ESA is at least likely in the future.” Nat’l Wildlife Fed’n v. Burlington Northern 

Railroad, 23 F.3d 1508, 1511 (9th Cir. 1994). In other words, an injunction should issue if there 

is a reasonably certain threat of imminent harm to a protected species. Marbled Murrelet v. Pac. 

Lumber Co., 83 F.3d 1060, 1066-68 (9th Cir. 1996); Defenders of Wildlife v. Bernal, 204 F.3d 

920, 925 (9th Cir. 2000); Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 

787-88 (9th Cir. 1995); Ctr. for Biol. Diversity v. Otter, 2016 WL 233193 (D. Idaho Jan. 8, 

2016); Or. Natural Desert Ass’n v. Tidwell, 2010 WL 5464269, at *3 (D. Or. Dec. 30, 2010).

Injunctions stopping or modifying ongoing actions pending compliance with the ESA are 

necessary if “continuation of the status quo could result in irreparable harm to a threatened 

species.” Nat’l Wildlife Fed’n, 422 F.3d at 796; see also Wash. Toxics Coal., 413 F.3d at 1035; 

Wild Fish Conservancy v. Salazar, 628 F.3d 513, 532 (9th Cir. 2010); Tidwell, 2010 WL 

5464269, at *2-6; Ctr. for Biol. Diversity v. U.S. Fish and Wildlife Serv., 2011 WL 6813200, at 

*4-6 (N.D. Cal. Dec. 28, 2011); Defenders of Wildlife v. Martin, 2007 WL 641439, at *8 (E.D.

Wash. 2007); Pac. Coast Fed’n of Fishermen’s Ass’ns v. U.S. Bureau of Reclamation, 138 F. 

Supp. 2d 1228, 1250 (N.D. Cal. 2001) (all enjoining ongoing actions pending compliance with 

the ESA). As explained in detail in supra part IV, the ongoing operation of the dams and 

 7 Although the Ninth Circuit in Cottonwood held that there is no presumption of irreparable 

injury “where there has been a procedural violation in ESA cases,” this holding was limited to 

procedural ESA cases without a substantive allegation of take under Section 9. In contrast to a 

purely procedural ESA case, the allegations of harm in this case include direct, substantive take 

of the species. Furthermore, by recognizing that the establishment of irreparable harm in ESA 

cases “should not be an onerous task,” and that “the equities and public interest factors always 

tip in favor of the protected species,” the Ninth Circuit in Cottonwood affirmed the equitable 

tipping of the scales in a species’ favor. Id.

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reservoirs will continue to kill generations of frogs. This direct, continuing harm in the form of 

desiccated egg masses and dead frogs is irreparable: it cannot be undone. As the continued 

status quo operation of the system dams and reservoirs will continue to result in irreparable harm 

to threatened frogs, an injunction to implement one of the proposals set forth below to stop the 

ongoing harm, through a run-of-the-river or “unregulated” condition or modification of the 

ongoing action through maintenance of set, more consistent flows, is appropriate and required 

under the law.

B. Harm to Spotted Frogs is Ongoing and Will Continue.

The Oregon spotted frog was listed as threatened in August of 2014. It has been 

acknowledged as a potential candidate for listing since at least 2003, when BOR completed the 

earlier biological opinion and noted the frog may become listed in the future, requiring 

reinitiation of consultation. Since the actual listing in 2014, there have been no changes to 

system operations in Crane Prairie, Wickiup or the Deschutes River mainstem. There has been 

only the limited and demonstrably inadequate 30 cfs proposal implemented in Crescent Creek. 

As described by Plaintiffs’ expert and above, harm to frogs and their habitat occurs every season 

of every year with the operation of Crane Prairie, Wickiup and Crescent Lake for irrigation 

purposes: during breeding, during rearing and summer metamorphosis, during fall draw-down 

and overwintering. Habitat that has been proposed as critical habitat is dry much of the year and 

unusable for frogs. Frogs are harmed when egg masses are desiccated or flooded out in the 

spring, when breeding is prevented or delayed due to dry breeding habitat, when rearing habitat 

dries out before metamorphosis, when juvenile and adult frogs are stranded in the fall drawdown, and when frogs are forced into unsuitable winter habitat and then frozen, killed by anoxic 

conditions, or predated upon by fish. 

As recently as October 2015, with the system operating as it had in all previous years by 

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shutting down flows in the Deschutes and in Crescent Creek/Little Deschutes to the most 

minimal flows, harm to frogs was continuing. Observations by Plaintiffs’ expert during that 

period were similar to observations of changes in the landscape and habitat during the same 

period in 2014, made by staff of federal agencies. Cf. Simpson Decl., ¶¶ 46-51 and 84-88 with 

Gritzner email, Sewell Decl., Ex. 15. As recently as Spring of 2015, agencies documented egg 

masses desiccated and dead because of fluctuations in water levels brought on by the usual 

operation of the system. Furthermore, the proposal offered by irrigators does little or nothing to 

prevent harm to spotted frogs. The proposals for Crane Prairie and Crescent Creek are not 

sufficient to protect breeding, rearing, nonbreeding, and overwinter habitat around Crane Prairie 

and along Crescent Creek and the Little Deschutes River, and there is absolutely nothing to 

reduce harm to frogs on the mainstem Deschutes River or around Wickiup Reservoir. See above

Simpson Decl., ¶¶ 96-101.

Because there is no biological opinion dictating measures to ensure no jeopardy and no 

adverse impacts to critical habitat, and because there is no habitat conservation plan to address 

continued operation of the system, these harms are ongoing and will continue.

IV. TO AVOID OR AT LEAST MINIMIZE HARM PENDING COMPLETION OF A 

BIOLOGICAL OPINION AND HABITAT CONSERVATION PLAN, CONDITIONS 

IN THE UPPER DESCHUTES BASIN MUST MOVE TO A STATE THAT IS 

CLOSER TO NATURAL FLOW CONDITIONS.

A. It is Important for Protections to be in Place by the First Week of April This Year.

In order to avoid harm in the coming year, it is important that an injunction be in place by 

the first week of April. As noted in the Simpson Declaration, in most years breeding begins by 

mid-March and therefore the recommendations for avoiding harm are tied to that date. Because 

of heavy snow-pack this year, there may be a natural delay in breeding by a few weeks, but that 

delay is unlikely to extend beyond the first week of April. Simpson Decl., fn. 1. 

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B. Each of the Two Proposals by Plaintiffs’ Experts Result in Moving the River 

Toward More Natural Flow Conditions.

Ms. Simpson has proposed two methods for the main stem Deschutes and a single 

method for the Crescent Creek/Little Deschutes tributary that will help avoid or at least minimize 

harm to Oregon spotted frogs in the interim, pending completion of consultation and a habitat 

conservation plan. Simpson Decl., ¶¶ 93-96. Each has been verified as possible with 

hydrograph study and modeling by Mr. Kamman and his team of hydrologists and modelers. See 

generally Declaration of Gregory R. Kamman In Support of Plaintiffs’ Joint Motion for 

Preliminary Injunction (“Kamman Decl.”). Each proposal builds on Ms. Simpson’s direct 

observations of the habitat in the Upper Deschutes Basin—both the Little Deschutes and Upper 

Deschutes sub-basins—as to when and where habitat must be inundated in particular seasons to 

ensure frogs are not harmed. One proposal for the main stem represents a more managed or 

hands-on scenario, while the other allows for a largely unregulated run-of-the-river condition. 

Either of these represents a significant improvement over current operations that will protect 

frogs while the biological opinion and habitat conservation plan are being completed.

1. The Regulated Option for main stem Deschutes and Crane Prairie 

Reservoir.

The first or more-managed option (referred to hereafter as the “Regulated Option”)8

provides that for most years (years within the “average” hydrograph for the Upper Deschutes 

Basin) between March 15 and September 15 of each year flows in the Upper Deschutes (the 

main stem river upstream of Bend to the Wickiup reservoir), as measured at the WICO gauge 

just below Wickiup Reservoir, must be maintained at a level of at least 770 cfs. This level will 

inundate much of the frog’s habitat (although not all) in most years from the start of breeding in 

 8 Mr. Kamman refers to the Regulated Option as the Supply-Based Option and it is presented 

second in his declaration and report.

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mid-March until juvenile frogs have reached a certain stage of maturity and it is still early 

enough for all frogs to reach overwinter habitat before freeze-up. During wet years (at the top of 

the hydrograph), flows could be increased up to 838 cfs during this same March 15 to September 

15 time period. During dry years (for example, years where the hydrograph is similar to 

2004/2005), the flow level can drop to 650 cfs during this same period in order to stay within the 

hydrograph. See Simpson Decl., ¶ 94; Kamman Decl., ¶ 9-10 and Ex. B, part 4.0.

Under the Regulated Option, winter flows in the Upper Deschutes River must be 

maintained at a higher level than current operations in order to ensure frogs have suitable 

overwinter habitat. Winter flows, as measured at the WICO gauge, must be maintained at not 

less than 600 cfs in all but the dry years, when winter flows would drop to 530 cfs. Simpson 

Decl., ¶ 94; Kamman Decl., Ex. B, Tables at p. 14. The fall draw-down from summer to winter 

flows would begin September 15 of each year and occur over a one-month period, ending by 

October 15. This would allow frogs to move from summer habitat to overwinter habitat before 

freeze-up occurs, and allow them time to move to that habitat along aquatic pathways rather than 

be stranded due to quickly receding water levels. Simpson Decl., ¶ 94. Plaintiffs’ expert also 

recommends monitoring of breeding, rearing, and overwinter habitat along the Deschutes River 

to determine if appropriate inundation is occurring during these periods. Simpson Decl., ¶ 94. 

Finally, under the Regulated Option, the reservoir level in Crane Prairie should be set so 

that a water surface level of 4,443.3 feet is maintained in order to inundate vegetated edge habitat 

around Crane Prairie that provides for breeding, rearing and overwintering. Simpson Decl., ¶ 94. 

2. Run-of-the-River Option for main stem Deschutes with regulated level for 

Crane Prairie Reservoir.

The second largely-unmanaged option (hereafter referred to as the “Run-of-the-River 

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Option”)9 available for the Upper Deschutes sub-basin would allow for natural flows to pass 

through the system and down the river. This option simply requires that Crane Prairie and 

Wickiup reservoir controls be left open (or in the case of Crane Prairie set to maintain a reservoir 

level of 4,443.3 feet) and left in this condition throughout the year. Simpson Decl., ¶ 94; 

Kamman Decl., ¶ 8 and Ex. B, part 3.0. Under the Run-of-the-River Option, the natural 

hydrograph will control habitat inundation and flows in the river, a condition that frogs 

obviously evolved under. While the mere existence of the Crane Prairie and Wickiup Reservoirs 

on the landscape are damaging to frogs (reservoirs tend to fluctuate in ways that inundate and dry 

out frog habitat in a manner that is not natural), allowing Run-of-the-River will significantly 

limit the negative effects and the variability of flows that those reservoirs normally cause. Id. 

The hydrograph data for the last 11 years demonstrates that allowing natural 

snowmelt/precipitation/groundwater flows to occur in the Upper Deschutes will minimize harm 

to frogs by significantly reducing the extreme fluctuations in river flows as well as the extreme 

fluctuations in reservoir water levels. The resulting flows and water levels will provide better 

inundation of habitat at appropriate times for the frog’s life history needs, allowing for more 

natural breeding, rearing and overwintering along the Deschutes River and around the reservoirs. 

Id. As noted above, options will avoid or at least significantly reduce harm to the Oregon 

spotted frog while BOR and the irrigation districts complete their required ESA processes.

3. Regulated proposal for Crescent Creek/Little Deschutes tributary.

Plaintiffs propose a regulated option for Crescent Creek and the Little Deschutes River. 

Under the regulated proposal for this sub-basin, a minimum flow level of 40 cfs must be 

maintained at the CREO gauge year-round. This level of flow will keep significant portions of 

 9 Mr. Kamman refers to this option as the “Unregulated Option” and addresses it first.

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frog habitat along Crescent Creek and downstream in the Little Deschutes River inundated and 

maintain aquatic pathways for frogs to move between habitats. Because this is a smaller subbasin, and there are no known Oregon spotted frogs around Crescent Lake, the solution here is 

simpler. Simpson Decl., ¶ 95; Kamman Decl., ¶ 10 and Ex. B, part 2.0.

CONCLUSION

Based upon the foregoing, Plaintiffs request a preliminary injunction from the Court 

ordering Defendants to adopt either the Regulated Option or the Run-of-the-River Option (each 

with a set level for Crane Prairie) for the Upper Deschutes and the 40 cfs at CREO gauge 

minimum for Crescent Creek/Little Deschutes.

Respectfully submitted this 9th day of February, 2016.

/s/ Janette K. Brimmer

JANETTE K. BRIMMER (WSB #41271)

[Appearing Pro Hac Vice]

ANNA M. SEWELL (WSB # 48736)

[Appearing Pro Hac Vice]

Earthjustice

705 Second Avenue, Suite 203

Seattle, WA 98104

jbrimmer@earthjustice.org

asewell@earthjustice.org

Phone: (206) 343-7340 | Fax: (206) 343-1526

Lead Counsel for Plaintiff WaterWatch of Oregon

KARL G. ANUTA (OSB #861423)

Law Office of Karl G. Anuta, P.C.

735 S.W. First Avenue, 2nd Floor

Portland, Oregon 97204

kga@integra.net

Phone: (503) 827-0320 | Fax: (503) 228-6551

Local Counsel for Plaintiff WaterWatch of Oregon

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705 Second Ave., Suite 203

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/s/ Lauren M. Rule

Lauren M. Rule (OSB # 015174)

Elizabeth Hunter Zultoski (OSB # 105482)

Advocates for the West

3115 NE Sandy Blvd., Suite 223

Portland, OR 97232

lrule@advocateswest.org

ezultoski@advocates.org

Phone: (503) 914-6388

Counsel for Plaintiff Center for Biological Diversity

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(206) 343-7340

CERTIFICATE OF SERVICE

I certify that on February 9, 2016 , I electronically filed the foregoing with the Clerk of 

the Court using the appellate CM/ECF system, which system will serve all parties who are 

registered participants.

/s/ Janette K. Brimmer

Janette K. Brimmer

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