Beth S. Ginsberg, OSB No. 070890

beth.ginsberg@stoel.com

Jason T. Morgan (pro hac vice)

jason.morgan@stoel.com

STOEL RIVES LLP

600 University Street, Suite 3600

Seattle, WA 98101

Telephone: (206) 624-0900

Facsimile: (206) 386-7500

David E. Filippi, OSB No. 965095

david.filippi@stoel.com

Kirk B. Maag, OSB No. 105507 

kirk.maag@stoel.com

STOEL RIVES LLP

900 SW Fifth Avenue, Suite 2600

Portland, OR 97204

Telephone: (503) 224-3380

Facsimile: (503) 220-2480

Attorneys for Arnold Irrigation District, Central Oregon Irrigation District, Lone Pine

Irrigation District, North Unit Irrigation District, and Tumalo Irrigation District

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

CENTER FOR BIOLOGICAL 

DIVERSITY, et al.,

Plaintiffs,

v.

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

Defendants,

ARNOLD IRRIGATION DISTRICT, et al., 

Intervenor-Defendants.

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

(consolidated with 6:16-cv-00035-TC)

DISTRICTS’ OPPOSITION TO 

PLAINTIFFS’ MOTION FOR 

PRELIMINARY INJUNCTION

Case 6:15-cv-02358-JR Document 43 Filed 03/02/16 Page 1 of 44
Page i - Districts’ Opposition to Plaintiffs’ Motion for Preliminary Injunction

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .........................................................................................................iii

I. INTRODUCTION....................................................................................................................... 1

II. FACTUAL BACKGROUND .................................................................................................... 6

A. The Districts Operate Irrigation Works Essential to Farming in Central 

Oregon.................................................................................................................... 6

B. Frog Populations in the Upper Deschutes Are Stable or Increasing...................... 7

C. The Districts Have Taken Substantial Measures to Protect the Frog. ................... 9

D. The BOR Is Consulting with the FWS Under ESA Section 7(a)(2).................... 10

III. ARGUMENT.......................................................................................................................... 10

A. Plaintiffs’ Request for Injunctive Relief Is Subject to the Higher Standard 

Applicable to Mandatory Preliminary Injunctions. ............................................. 10

B. Plaintiffs Have Failed to Demonstrate that They Are Likely to Suffer 

Irreparable Harm Absent an Injunction. .............................................................. 12

1. Plaintiffs Must Show Irreparable Harm to Themselves or Their 

Members, Not Merely Harm to Frogs........................................................12

2. Plaintiffs Have Provided No Factual Basis to Demonstrate 

Irreparable Harm Absent an Injunction. ....................................................18

a. Plaintiffs Fail to Demonstrate Irreparable Harm to Their 

Organizations or Members.............................................................18

b. Plaintiffs Fail to Demonstrate that the Frog Will Suffer 

Irreparable Harm Absent an Injunction. ........................................21

3. Plaintiffs’ Long Delay in Seeking Injunctive Relief Belies Their 

Claims of Irreparable Harm. ......................................................................24

C. The Balance of the Equities and Public Interest Weigh Heavily Against 

Plaintiffs’ Injunction Because the Requested Relief Will Actually Harm 

the Frog. ............................................................................................................... 25

D. Plaintiffs Are Unlikely to Succeed on the Merits. ............................................... 29

1. Plaintiffs Lack Standing.............................................................................29

a. WaterWatch Lacks Standing..........................................................30

b. CBD Lacks Standing......................................................................31

2. The BOR Has Initiated Consultation Under ESA Section 7(a)(2) 

and Complied with the Requirements of Section 7(d)...............................31

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Page ii - Opposition to Plaintiffs’ Motion for Preliminary Injunction

3. Plaintiffs Are Unlikely to Prevail in Demonstrating that the 

Districts or the BOR Will Engage in Ongoing Take of Frogs...................32

II. CONCLUSION ........................................................................................................................ 35

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Page iii - Opposition to Plaintiffs’ Motion for Preliminary Injunction

TABLE OF AUTHORITIES

Page(s)

Cases

All. for the Wild Rockies v. Kruger,

35 F. Supp. 3d 1259 (D. Mont. 2014)................................................................................25, 28

All. of the Wild Rockies v. Cottrell,

632 F.3d 1127 (9th Cir. 2011) .................................................................................................12

Audubon Society of Portland v. National Marine Fisheries Service,

849 F. Supp. 2d 1017 (D. Or. 2011) ........................................................................................16

Babbitt v. Sweet Home Chapter of Communities for a Great Or.,

515 U.S. 687 (1995).................................................................................................................32

Biodiversity Legal Found. v. Badgley,

309 F.3d 1166 (9th Cir. 2002) .................................................................................................20

Cascadia Wildlands v. Kitzhaber,

No. 3:12-cv-00961-AA, 2012 WL 5914255 (D. Or. Nov. 19, 2012)......................................18

Cetacean Cmty. v. Bush,

386 F.3d 1169 (9th Cir. 2004) .................................................................................................13

Chapman v. Pier 1 Imports (U.S.) Inc.,

631 F.3d 939 (9th Cir. 2011) ...................................................................................................30

Citibank, N.A. v. Citytrust,

756 F.2d 273 (2d Cir. 1985).....................................................................................................24

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

789 F.3d 1075 (9th Cir. 2015) .................................................................................................12

Ctr. for Envtl. Sci., Accuracy & Reliability v. Cowin,

No. 1:15-CV-00884 LJO BAM, 2015 WL 3797693 (E.D. Cal. June 18, 2015) .....................11

Ctr. for Food Safety v. Vilsack,

636 F.3d 1166 (9th Cir. 2011) ...................................................................................................3

Defs. of Wildlife v. Salazar,

812 F. Supp. 2d 1205 (D. Mont. 2009)..............................................................................15, 17

DISH Network Corp. v. FCC,

653 F.3d 771 (9th Cir. 2011) ...................................................................................................11

Earth Island Inst. v. Carlton,

626 F.3d 462 (9th Cir. 2010) ...................................................................................................12

Case 6:15-cv-02358-JR Document 43 Filed 03/02/16 Page 4 of 44
Page iv - Opposition to Plaintiffs’ Motion for Preliminary Injunction

In re Endangered Species Act Section 4 Deadline Litig.,

Case No. 1:10-mc-00377-EGS (D.D.C.) .................................................................................24

In re Excel Innovations, Inc.,

502 F.3d 1086 (9th Cir. 2007) .................................................................................................12

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,

528 U.S. 167 (2000)...........................................................................................................30, 31

Fund for Animals v. Frizzell,

530 F.2d 982 (D.C. Cir. 1975).................................................................................................13

Garcia v. Google, Inc.,

786 F.3d 733 (9th Cir. 2015) ........................................................................................... passim

Goldie’s Bookstore, Inc. v. Superior Court of Cal.,

739 F.2d 466 (9th Cir. 1984) .............................................................................................12, 20

Humane Soc’y of U.S. v. Bryson,

No. 3:12-CV-00642-SI, 2012 WL 1952329 (D. Or. May 30, 2012).......................................14

Humane Society of U.S. v. Gutierrez,

523 F.3d 990 (9th Cir. 2008) ...................................................................................................16

Idaho Rivers United v. U.S. Army Corps of Engineers,

No. C14-1800JLR, 2015 WL 9700887 (W.D. Wash. Jan. 7, 2015)................................ passim

The Lands Council v. McNair,

537 F.3d 981 (9th Cir. 2008) .....................................................................................................5

Laughlin River Tours, Inc. v. Bureau of Reclamation,

730 F. Supp. 1522 (D. Nev. 1990)...........................................................................................11

Lydo Enters., Inc. v. City of Las Vegas,

745 F.2d 1211 (9th Cir. 1984) .................................................................................................24

Makua v. Rumsfeld,

163 F. Supp. 2d 1202 (D. Haw. 2001).....................................................................................14

Marbled Murrelet v. Babbitt,

83 F.3d 1060 (9th Cir. 1996) .............................................................................................17, 25

Mazurek v. Armstrong,

520 U.S. 968 (1997) (per curiam)............................................................................................10

Munaf v. Geren,

553 U.S. 674 (2008).................................................................................................................10

Case 6:15-cv-02358-JR Document 43 Filed 03/02/16 Page 5 of 44
Page v - Opposition to Plaintiffs’ Motion for Preliminary Injunction

Nat’l Taxpayers Union, Inc. v. United States,

68 F.3d 1428 (D.C. Cir. 1995).................................................................................................31

Nat’l Wildlife Fed’n v. Burlington N. R.R., Inc.,

23 F.3d 1508 (9th Cir. 1994) .............................................................................................16, 17

Native Ecosystems Council v. Krueger,

40 F. Supp. 3d 1344, 1351 (D. Mont. 2014)............................................................................25

Nw. Envtl. Def. Ctr. v. U.S. Army Corps of Eng’rs,

817 F. Supp. 2d 1290 (D. Or. 2011) ........................................................................................13

NWF v. NMFS,

422 F.3d 782 (9th Cir. 2005) .............................................................................................13, 18

Oakland Tribune, Inc. v. Chronicle Publ’g Co.,

762 F.2d 1374 (9th Cir. 1985) .....................................................................................21, 24, 25

Pac. Coast Fed’n of Fishermen’s Ass’ns v. Gutierrez,

606 F. Supp. 2d 1195 (E.D. Cal. 2008)..........................................................................5, 13, 14

Protect Our Communities Found. v. U.S. Dep’t of Agric.,

845 F. Supp. 2d 1102 (S.D. Cal. 2012)....................................................................................24

Quince Orchard Valley Citizens Ass’n v. Hodel,

872 F.2d 75 (4th Cir. 1989) .....................................................................................................24

S. Utah Wilderness All. v. Thompson,

811 F. Supp. 635 (D. Utah 1993).............................................................................................13

Sierra Club v. Morton,

405 U.S. 727 (1972)...........................................................................................................30, 31

South Yuba River Citizens League v. National Marine Fisheries Service,

Nos. 2:13-cv-00059-MCE, 2:13-cv-00042-MCE, 2013 WL 4094777 (E.D. 

Cal. Aug. 13, 2013)......................................................................................................21, 22, 23

Stanley v. Univ. of S. Cal.,

13 F.3d 1313 (9th Cir. 1994) ...................................................................................................11

Summers v. Earth Island Inst.,

555 U.S. 488 (2009)...........................................................................................................30, 31

Tanner Motor Livery, Ltd. v. Avis, Inc.,

316 F.2d 804 (9th Cir. 1963) ...................................................................................................11

Valdivia v. Schwarzenegger,

599 F.3d 984 (9th Cir. 2010) ...................................................................................................29

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W. Watersheds Project v. Salazar,

692 F.3d 921 (9th Cir. 2012) ...................................................................................................24

Wild Equity Inst. v. City & County of San Francisco,

No. C 11-00958 SI, 2011 WL 5975029 (N.D. Cal. Nov. 29, 2011)..................................17, 22

Winter v. Nat. Res. Def. Council,

555 U.S. 7 (2008)............................................................................................................. passim

Statutes

16 U.S.C. § 1531(a)(1)-(2).............................................................................................................15

16 U.S.C. § 1532(6).......................................................................................................................14

16 U.S.C. § 1532(19).....................................................................................................................33

16 U.S.C. § 1532(20).....................................................................................................................14

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

16 U.S.C. § 1536.................................................................................................................... passim

16 U.S.C. § 1536(a)(2)........................................................................................................... passim

16 U.S.C. § 1536(b).......................................................................................................................15

16 U.S.C. § 1536(d).......................................................................................................4, 10, 31, 32

16 U.S.C. § 1536(o).......................................................................................................................15

16 U.S.C. § 1538.................................................................................................................... passim

16 U.S.C. § 1539............................................................................................................................15

16 U.S.C. § 1540..................................................................................................................9, 15, 32

Or. Rev. Stat. § 537.130.................................................................................................................29

Regulations

50 C.F.R. § 17.3.............................................................................................................................33

50 C.F.R. § 17.31...........................................................................................................................16

58 Fed. Reg. 27260, 27261-62 (May 7, 1993)...............................................................................24

79 Fed. Reg. 51658, 51707 (Aug. 29, 2014).......................................................................... passim

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Other Authorities

American Heritage Dictionary (2d ed. 1989)................................................................................23

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I. INTRODUCTION

Plaintiffs in these consolidated cases are asking the Court for a mandatory preliminary 

injunction drastically altering the status quo that has existed in the Upper Deschutes Basin for 

more than 60 years. Plaintiffs ask the Court for an injunction that precludes irrigation water 

storage for certain irrigation districts and effectively shuts off irrigation water to many farmers 

and ranchers in central Oregon this summer. Plaintiffs urge this radical change to protect the 

Oregon spotted frog (a species listed in August 2014 as threatened under the Endangered Species 

Act (“ESA”)) from three dams operated by the irrigation-district-Defendants (the “Districts”) in 

the Upper Deschutes. Plaintiffs claim these dams are “a primary cause of the Oregon spotted 

frogs’ decline and current precarious status.” Plaintiffs’ Brief at 1. 

Plaintiffs’ emergency is pure fiction. Indeed, the U.S. Fish and Wildlife Service (“FWS” 

or “Service”), the federal agency with jurisdiction over the frog, concluded that “the best 

scientific and commercial information does not indicate at the present time that the existing 

threats are of such great magnitude that these frogs are in immediate danger of extinction.” 79 

Fed. Reg. 51658, 51707 (Aug. 29, 2014). As explained in the attached Declarations of Dr. 

Lowell Diller (a herpetologist) and Martin Vaughn (a biologist who has spent the last seven 

years working on a Habitat Conservation Plan (“HCP”) for the Upper Deschutes to benefit 

species including the frog), there is no evidence that frogs in the Upper Deschutes are declining 

in number now, or have declined at any time in the past. See infra Section II.B. In fact, this area 

is actually one of the remaining frog “strongholds.” Diller ¶ 24. This critical point is confirmed 

by the FWS’s listing decision, which states that, to the extent known, the numbers of frogs in and 

around the Districts’ irrigation projects are stable, and in some cases are demonstrating “an 

increasing population trend.” 79 Fed. Reg. 51658, 51666 (Aug. 29, 2014). In contrast, the frog 

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Page 2 - Opposition to Plaintiffs’ Motion for Preliminary Injunction

has disappeared most everywhere else, including in California, Washington, British Columbia, 

and most of Oregon. Id. Plaintiffs provide no evidence to the contrary. The persistence of the 

frog in and below the Districts’ reservoirs, contrasted with the species’ contraction in most other 

locations throughout its range, provides compelling evidence that the Districts’ operations are 

not inimical to the frog’s biological interests. Diller ¶ 11. 

The Districts recognize fully that their ongoing operations have historically affected frog 

habitat (both positively and negatively) and that the FWS has identified the Districts’ operations 

(if not properly managed) as a potential risk to the frog because their operations can, among 

other things, “inundate and desiccate Oregon spotted frog habitat.” 79 Fed. Reg. at 51669. But 

that is precisely why the Districts began working for the protection of the frog through the HCP 

process years before the frog was actually listed and have continued to do so since its listing. 

The Districts are also implementing a series of “Interim Measures” (developed in conjunction 

with technical experts from state and federal agencies) that target those very threats and improve 

habitat in the short term (while long-term strategies are under development). Among other 

things, these Interim Measures will increase flows and stabilize reservoir levels to protect spring 

breeding.1

 See infra Section II.C. These measures are consistent with sound conservation 

principles and represent a science-based, consensus approach to improving habitat for the frog. 

Vaughn ¶¶ 18-20, 28. As the FWS has variously explained with respect to certain of these 

measures, they are “a step in the right direction,” are “expected to provide conservation benefits” 

to the frog, “should prevent spotted frogs from depositing egg masses in a location where they 

are likely to strand,” and are a “direct response to technical advice” from the FWS. Sewell, Ex. 

 1 Plaintiffs address part of these measures (referred to as the OSF Proposal) but ignore entirely 

the significant additional spring breeding measures that will commence on March 26, 2016. 

Vaughn ¶ 28. 

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Page 3 - Opposition to Plaintiffs’ Motion for Preliminary Injunction

22. Although Plaintiffs’ witness (Theresa Simpson, a retired U.S. Forest Service (“USFS”) 

employee) disagrees with the FWS’s conclusions (Simpson ¶¶ 98-99) she provides no credible 

explanation why the FWS was incorrect. Plaintiffs’ efforts to foment an emergency by claiming 

that nothing is currently being done to protect the frog are simply not true. 

There are any number of reasons why the Court can and should deny Plaintiffs’ requested 

relief. Plaintiffs seek a mandatory preliminary injunction, a form of relief that, as explained in 

Section III.A below, is “disfavored” and subject to an exacting “doubly demanding” standard. 

Plaintiffs have failed to meet that standard for each and every one of the Winter factors for 

granting a preliminary injunction (likelihood of success on the merits, irreparable harm, 

balancing of the equities, and public interest).

First, starting with irreparable harm, as detailed in Section III.B below, Plaintiffs fail to 

show that they, themselves, will be irreparably harmed absent an injunction. Plaintiffs, in fact, 

make no arguments in their brief and have no allegations in their declarations that they will 

suffer irreparable harm if an injunction is not granted. Instead, Plaintiffs claim that it is enough 

to allege that individual frogs are harmed or killed. But that is not the law. Plaintiffs’ complete 

failure to demonstrate irreparable harm to themselves requires denial of their motion. Ctr. for 

Food Safety v. Vilsack, 636 F.3d 1166, 1174 (9th Cir. 2011) (if party fails to show irreparable 

harm, court “need not address . . . the remaining elements of the preliminary injunction 

standard”). Moreover, Plaintiffs fail to show that there will be harm to the frog that is significant 

to the population or species as a whole. Vaughn ¶ 6.a; Diller ¶ 9.a.

Second, Plaintiffs incorrectly presume that the public interest and the balance of equities 

support an injunction because Plaintiffs seek to protect threatened species. As detailed below in 

Section III.C, Plaintiffs fail to provide any evidence that either of the two radically different 

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Page 4 - Opposition to Plaintiffs’ Motion for Preliminary Injunction

injunctions they propose will actually protect the frog. To the contrary, as Dr. Diller and Mr. 

Vaughn explain, the sweeping changes proposed by Plaintiffs are not “scientifically prudent,” 

have no “biological basis,” and have a “high probability to substantially harm the existing 

population.” Diller ¶¶ 9.d, 24; Vaughn ¶¶ 29, 32.a.ii. Additionally, as the Districts’ expert 

hydrologist Michael Ramey explains, the requested injunctions will not even produce the 

hydrological results Plaintiffs intend, and will in many cases produce the opposite. Ramey 

¶¶ 24-29. In essence, Plaintiffs are asking the Court to embark on a “very expensive and very 

risky experiment” that will put farmers out of business while harming the frog. Vaughn ¶ 32.c; 

Declaration of Richard Macy ¶¶ 6-8, 10. The balance of the equities and the public interest 

weigh heavily against such a reckless injunction. See Vaughn ¶ 6.e; Diller ¶ 9.d-e. 

Third, as discussed below in Section III.D, Plaintiffs have no chance of success on the 

merits. Plaintiffs’ procedural claims under ESA section 7(a)(2) and 7(d) have no merit because 

the Bureau of Reclamation (“BOR”) has properly initiated consultation under ESA section 

7(a)(2) regarding the frog, and in the interim has not irreversibly or irretrievably committed any 

resources as required by ESA section 7(d). Plaintiffs’ illegal “take” claims under ESA section 9 

also fail because Plaintiffs have no direct evidence of death or injury to frogs caused by the 

Districts’ operations, and instead rely on speculation and conjecture. While Ms. Simpson claims 

to have observed struggling frogs, her claims of actual injury are speculative and she does not 

(and cannot) causally link her observations to reservoir operations, as opposed to natural 

phenomena. Diller ¶¶ 9.e, 32. Plaintiffs’ section 9 claims will not prevail at trial. 

Lastly, basic principles of judicial restraint preclude this kind of dramatic and untailored 

relief. Plaintiffs are uncertain as to what kind of injunctive relief is allegedly necessary (as they 

do not explain which of their two proposed injunctions is better for the frog). Instead, they 

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Page 5 - Opposition to Plaintiffs’ Motion for Preliminary Injunction

provide two drastically different flow regimes (Ramey ¶ 22; Vaughn ¶ 32.a), at least one of 

which would require the Districts to violate state law and require one of the Districts to breach its 

contract with the BOR (Declaration of Mike Britton at ¶ 20), and both of which are fraught with 

error. These ill-conceived proposals will inadvertently flood the City of Tumalo (Ramey ¶ 27); 

draw down, or even drain, Wickiup and Crane Prairie reservoirs, which will harm frogs residing 

therein (Ramey ¶ 20; Vaughn ¶ 32.b); and otherwise be unachievable. Ramey ¶¶ 18, 20, 22. Not 

only will Plaintiffs fail to achieve the benefits they claim the frog desperately needs through their 

requested injunction (Ramey ¶ 21), they will actually end up harming the frog by, inter alia, 

reducing the suitability of its habitat in key locations. Vaughn ¶¶ 11-17; Diller ¶¶ 38-41. 

Plaintiffs provide no scientific basis to choose between their proposed regimes, and ask 

the Court to sort this all out by running the river. But, as one district court judge explained, a 

“federal court lacks the expertise and/or background in fish 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.” Pac. Coast Fed’n of Fishermen’s Ass’ns v. Gutierrez, 606 F. Supp. 2d 1195, 1214 (E.D. 

Cal. 2008); see also The Lands Council v. McNair, 537 F.3d 981, 988 (9th Cir. 2008) (court is 

not to “act as a panel of scientists” that picks and chooses between alternatives). 

These technical biological decisions are best resolved by the FWS, the agency that 

Congress entrusted to protect the frog. The section 7 consultation process is currently underway, 

and, when completed, will determine what additional changes (if any) are needed to protect the 

frog. Plaintiffs provide no reason for the Court to get out ahead of this scientifically driven 

administrative process (or the best available science in the basin). For these reasons, and those 

discussed more fully below, Plaintiffs’ request for preliminary injunction should be denied. 

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II. FACTUAL BACKGROUND

A. The Districts Operate Irrigation Works Essential to Farming in Central Oregon.

Pursuant to former and current contracts with the BOR, the Districts operate three dams 

(Crane Prairie, Wickiup, and Crescent) as part of a coordinated series of irrigation projects that 

provide water to more than 6,000 farmers, ranchers, and other District members in central 

Oregon. Britton ¶ 3. The BOR improved Crane Prairie Dam on the Upper Deschutes River in 

1940, and the Districts have rights to store up to 50,000 acre-feet of water for irrigation in that 

reservoir. Declaration of Craig Horrell ¶¶ 4, 6. The BOR built Wickiup Dam on the Upper 

Deschutes River in 1949, and the Districts have rights to store up to 200,000 acre-feet of water 

for irrigation in that reservoir; the contract with BOR, however, does not permit water to be 

stored for any other purpose (with minor exceptions not relevant here). Britton ¶¶ 4, 6, 20. The 

BOR built Crescent Dam on Crescent Creek (a tributary of the Upper Deschutes River) in 1956 

to replace an existing dam, and the Districts have rights to store up to 86,050 acre-feet of water 

for irrigation in that reservoir. Declaration of Ken Rieck ¶ 4. 

The Districts’ members depend on the stored water in these three reservoirs for irrigation. 

See, e.g., Horrell ¶¶ 4-5. That irrigation water is used by the Districts’ members to grow crops, 

irrigate pastures, and water stock. Id. The water rights held by each District are property rights 

specific to that individual District (held in trust for members). The Districts are not similarly 

situated; certain Districts depend largely on stored water for irrigation while others possess 

senior water rights that entitle them to a substantial portion of the live flow. Britton ¶ 15.c. Any 

court-ordered change in the operation of those dams necessarily impacts these rights, and the 

rights of others who are not before the Court (Britton ¶ 15, 20), which will impact some Districts 

more than others and create economic hardships to central Oregon farmers and ranchers. Britton 

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Page 7 - Opposition to Plaintiffs’ Motion for Preliminary Injunction

¶¶ 15-19; Horrell ¶¶ 14-17; Rieck ¶¶ 13-16 (discussing impacts of requested injunctions). The 

Districts’ members have already made significant investments in preparation for the 2016 

irrigation season that will be lost if the Court orders the relief sought by Plaintiffs. Macy ¶ 7. 

A 2014 study shows that a loss of only 10 percent of the Districts’ irrigation water would 

have severe annual loss to farmers of $3,961,000, with an annual economic impact to the central 

Oregon economy of $7,752,000. Britton ¶ 16. The losses under the proposed injunctions are 

likely many times higher than 10 percent and would result in a much greater economic impact, 

and potentially, the loss of a way of life. Britton ¶ 17; Macy ¶¶ 9-11. 

B. Frog Populations in the Upper Deschutes Are Stable or Increasing.

The Upper Deschutes Basin, including the area directly affected by the Districts’ 

irrigation projects, is one of the last remaining “strongholds” for the Oregon spotted frog. Diller 

¶ 24. There are currently an estimated 1,542 breeding females that live and reproduce in and 

below the three reservoirs operated by the Districts. Diller ¶ 11. There is no data to suggest the 

number of frogs in areas influenced by the reservoirs is declining; on the contrary, the available 

evidence shows that frogs are increasing at some of these sites and are stable at others. 79 Fed. 

Reg. at 51666; Vaughn ¶ 23; Diller ¶ 25.2

 Therefore, the risk of a sudden loss of frogs at any one 

site in the Upper Deschutes (as well as the entire population) is negligible. Diller ¶ 29.3

The construction of Crane Prairie, Wickiup, and Crescent Dams more than 60 years ago 

altered both the hydrology and the morphology of the Deschutes River. Ramey ¶ 12. But there 

is no evidence that the frog was more abundant or widely distributed before the dams were built. 

Diller ¶ 25; Vaughn ¶¶ 12, 23. While construction and subsequent operation of the dams may 

 2 The FWS explains that the actual number is likely higher because FWS was unable to survey 

on private property. 79 Fed. Reg. at 51666; Vaughn ¶ 10.

3 The only group of frogs that has shown a decline in numbers is that found in the Old Mill Pond, 

which in unrelated to reservoir operations. Vaughn ¶ 10.

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Page 8 - Opposition to Plaintiffs’ Motion for Preliminary Injunction

have eliminated some habitat for the frog, those actions have also created new areas of frog 

habitat. Diller ¶ 11. Over the ensuing decades, more than 20 generations of frogs have adapted, 

behaviorally (and possibly genetically), to this new habitat. Id. For example, the impoundment 

of Crane Prairie Reservoir created new wetland habitat, now home to 300-plus breeding females. 

Id.; Ramey ¶ 12. Of the 1,542 breeding females known to exist downstream from the reservoirs, 

at least 1,067 of those frogs are living and reproducing in artificially created habitat such as the 

reservoirs, the Old Mill Pond, and the weir-controlled wetlands at Sunriver. Vaughn ¶ 10. 

Additionally, certain altered conditions in the Upper Deschutes Basin are actually 

beneficial to the frog. Vaughn ¶¶ 14-15; Diller ¶¶ 19-22. For example, reservoir and river 

fluctuations keep dense vegetation (unsuitable for egg laying) from developing, and can provide 

a competitive advantage to the frog over invasive predators like the bullfrog. Vaughn ¶¶ 15, 29; 

Diller ¶ 20. High summer flows also support suitable wetland habitat (which would not exist but 

for these high flows) where frogs have become habituated. Ramey ¶ 26; Diller ¶ 40.

Oregon spotted frogs elsewhere are not doing as well. Although the frog has persisted 

(and even increased) in the habitat afforded by the Upper Deschutes Basin, it has been 

completely extirpated from 76 to 90 percent of its historical habitat in Washington, Oregon, and 

California. Diller ¶ 24. Although Plaintiffs claim the Districts are the primary reason for the 

frog’s listing, that rationale has no support in the listing decision. Id.; 79 Fed. Reg. at 51664 

(explaining that the frog elsewhere “has been extirpated from most of its historical range”).

The fact that the frog has persisted for more than 60 years (and perhaps even increased in 

abundance) in the altered habitat conditions of the Upper Deschutes Basin, whereas the species 

has faltered in most other locations, is plain evidence that the current habitat conditions in the 

Deschutes are not irreparably harming these frogs. Diller ¶ 11. As Dr. Diller explains, the frog 

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“would have long since gone extinct in the region if the construction of the Reservoirs created 

unsuitable conditions for the species.” Id. 

C. The Districts Have Taken Substantial Measures to Protect the Frog.

For the last seven years, the Districts have been working cooperatively with a diverse set 

of stakeholders including the BOR, the FWS, conservation groups, and the Confederated Tribe 

of the Warm Springs, as well as local and state agencies, to develop the Deschutes Basin HCP, 

pursuant to ESA section 10. Vaughn ¶ 7. The HCP is intended to benefit a number of listed 

species potentially impacted by the irrigation projects, including the frog. Id. This diverse 

technical group has spent significant time and resources examining the limiting factors impacting 

the frog and developing targeted measures that will provide the greatest benefit to the species. 

Vaughn ¶¶ 7-9. The “OSF Technical Group,” which consists of scientists from FWS, the USFS, 

the Oregon Department of Fish and Wildlife, the Oregon Water Resources Department 

(“OWRD”), and the Districts, have developed measures specific to the frog by methodically 

considering impacts of hydrologic changes intended to enhance frog habitat. Vaughn ¶¶ 19-20. 

Although all available evidence shows that the number of frogs in the basin is not 

declining and that preliminary injunctive relief is not needed to avoid irreparable harm to this 

species (Diller ¶ 23), the Districts have proposed, and are now implementing, a suite of Interim 

Measures designed to benefit the frog in the near term until the ongoing ESA section 7(a)(2) 

consultation is complete. Vaughn ¶¶ 18-20, 28; Vaughn Ex. C. 

The Interim Measures are discussed in detail by Mr. Vaughn and are summarized as 

follows: (1) year-round minimum instream flows of 30 cubic feet per second (“cfs”) on Crescent 

Creek (as compared to the six cfs that would otherwise exist); (2) operation of Crane Prairie 

Reservoir to provide stable surface water elevation during frog breeding and rearing seasons; (3) 

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minimum instream flows of 600 cfs below Wickiup Dam from March 31 to September 15 to 

benefit spring breeding; and (4) monitoring and adaptive management at frog breeding locations 

to evaluate the effect of these measures. Vaughn ¶¶ 20, 28. The Interim Measures have the 

support of the FWS (Vaughn ¶¶ 21, 28), and are fully consistent with precautionary principles of 

wildlife management (Diller ¶ 17). These measures are more than adequate to ensure that no 

irreparable harm occurs to the frog during completion of the consultation process. Diller ¶ 42.

D. The BOR Is Consulting with the FWS Under ESA Section 7(a)(2).

The BOR initiated formal consultation with the FWS on September 25, 2015, regarding 

the effects of operating the irrigation projects pursuant to ESA section 7(a)(2) (16 U.S.C. § 

1536(a)(2)). U.S. Ex. F. The consultation will be completed by mid-2017. Id. BOR further 

determined, in a written memorandum, that its actions are consistent with ESA section 7(d) (16 

U.S.C. § 1536(d)) because the “irrigation districts’ continued operation and maintenance of the 

Deschutes Project will not irreversibly or irretrievably commit resources” that would foreclose 

“the formulation or implementation of any reasonable or prudent alternative measure.” Id. 

III. ARGUMENT

A. Plaintiffs’ Request for Injunctive Relief Is Subject to the Higher Standard 

Applicable to Mandatory Preliminary Injunctions.

Issuance of preliminary injunctive relief before the merits of a case have been decided is 

an “‘extraordinary and drastic remedy.’” Munaf v. Geren, 553 U.S. 674, 689 (2008) (citation 

omitted). An injunction can only issue where a plaintiff makes a “clear showing” and presents 

“substantial proof” that an injunction is warranted. Mazurek v. Armstrong, 520 U.S. 968, 972 

(1997) (per curiam). The factors considered in whether to grant such relief are well established 

and require a plaintiff to demonstrate that (1) it is likely to succeed on the merits; (2) it is likely 

to suffer irreparable harm in the absence of such relief; (3) the balance of equities tips sharply in 

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its favor; and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, 555 

U.S. 7, 22 (2008). The burden is on the plaintiff to establish each of these four factors. DISH 

Network Corp. v. FCC, 653 F.3d 771, 777 (9th Cir. 2011).

A plaintiff’s burden is even higher when that party is seeking a mandatory injunction. 

The purpose of a preliminary injunction is to “preserve the status quo” until the court can reach 

the merits of the case. Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 808 (9th Cir. 1963). 

A mandatory preliminary injunction, by contrast, “orders the responsible party to take action” 

and “‘goes well beyond simply maintaining the status quo.’” Garcia v. Google, Inc., 786 F.3d 

733, 740 (9th Cir. 2015) (en banc) (citation omitted). Mandatory injunctions are “particularly 

disfavored” and “the district court should deny such relief unless the facts and law clearly favor 

the moving party.” Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994) (internal 

quotations omitted). The plaintiffs’ burden of proof is “doubly demanding,” Garcia, 786 F.3d at 

740, and courts must be “extremely cautious” about issuing such relief, Stanley, 13 F.3d at 1319.

Here, Plaintiffs are seeking a mandatory preliminary injunction. Plaintiffs seek to 

prevent the Districts from storing water for irrigation, and to impose fundamental changes in the 

way the projects are operated – in some cases on a daily basis. Ramey ¶¶ 17-20; Vaughn ¶ 32.b. 

This request “goes well beyond simply maintaining the status quo” by ordering the Districts “to 

take action,” Garcia, 786 F.3d at 740 (quotations and citations omitted); see also Ctr. for Envtl. 

Sci., Accuracy & Reliability v. Cowin, No. 1:15-CV-00884 LJO BAM, 2015 WL 3797693, at *8 

(E.D. Cal. June 18, 2015) (request to remove salinity barrier to protect endangered fish was a 

“mandatory injunction” subject to higher standard); Laughlin River Tours, Inc. v. Bureau of 

Reclamation, 730 F. Supp. 1522, 1522 (D. Nev. 1990) (action seeking to “compel[] the 

defendants to release sufficient waters” was a “mandatory injunction”). Plaintiffs therefore must 

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meet the high standard applicable to mandatory injunctions.4

B. Plaintiffs Have Failed to Demonstrate that They Are Likely to Suffer Irreparable 

Harm Absent an Injunction.

1. Plaintiffs Must Show Irreparable Harm to Themselves or Their Members, Not 

Merely Harm to Frogs.

To warrant equitable relief, “plaintiffs must establish that irreparable harm is likely, not 

just possible.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). A 

“[s]peculative injury does not constitute irreparable injury.” Goldie’s Bookstore, Inc. v. Superior 

Court of Cal., 739 F.2d 466, 472 (9th Cir. 1984). Likewise, “conclusory allegations are 

insufficient to establish irreparable harm.” In re Excel Innovations, Inc., 502 F.3d 1086, 1099 

(9th Cir. 2007). This requirement holds with equal force where the alleged harms are 

environmental in nature. Earth Island Inst. v. Carlton, 626 F.3d 462, 474 (9th Cir. 2010) 

(alleged harm to woodpecker habitat from logging “at most, showed such a possibility, but no 

likelihood of irreparable harm”); Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 

1075, 1091 (9th Cir. 2015) (there can be “no presumption of irreparable injury” in environmental 

cases, including those alleging violations of the ESA). 

Moreover, it is not enough for a plaintiff to show irreparable harm to the environment. 

Rather, a plaintiff must show that the injury to the environment in turn is likely to cause 

irreparable harm to the plaintiff. See Winter, 555 U.S. at 20 (explaining that a party seeking 

injunctive relief must show that “he is likely to suffer irreparable harm” (emphasis added)). 

 4 The Ninth Circuit applies a “sliding scale” approach in some circumstances, allowing a plaintiff 

to secure an injunction by showing “serious questions going to the merits” and “a balance of 

hardships that tips sharply towards the plaintiff.” All. of the Wild Rockies v. Cottrell, 632 F.3d 

1127, 1135 (9th Cir. 2011). That standard does not apply in mandatory injunction cases which 

“require[] more than a possible or fairly debatable claim; it requires a showing that the law 

‘clearly favors[s]’” the plaintiff on the merits, as well as “a clear showing of irreparable harm.” 

Garcia, 786 F.3d at 744, 746 (citation omitted; second brackets in original). 

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Plaintiffs are, as a matter of law, distinct from the frog and must demonstrate irreparable harm to 

their interests. Cetacean Cmty. v. Bush, 386 F.3d 1169, 1179 (9th Cir. 2004) (animals “do not 

have statutory standing to sue” under the Administrative Procedures Act or ESA). 

The recent decision in Idaho Rivers United v. U.S. Army Corps of Engineers, No. C14-

1800JLR, 2015 WL 9700887 (W.D. Wash. Jan. 7, 2015), is instructive. In that case, the 

plaintiffs (the Nez Perce Tribe) sought to enjoin maintenance dredging arguing irreparable harm 

to its cultural interest in lamprey and ESA listed salmon based on a “high likelihood” of injury or 

death to “individual lamprey” and the “take” of a small number of listed salmon. Id. at *7, *9 

n.12. The court flatly rejected that argument, finding that “courts require a showing that the 

identified harm to the species is ‘“significant” vis-à-vis the overall population,’ and not just that 

individual animals are likely to be injured.” Id. at *7 (quoting Pac. Coast, 606 F. Supp. 2d at 

1210). Other courts, including this Court, have reached the same result.5

 

The court in Idaho Rivers rooted its analysis on two basic rationales. First, the court 

explained that the identified harm ultimately must be irreparable to the plaintiff. In that case, the 

Nez Perce Tribe had presented evidence that it had a relationship with “the Pacific lamprey 

species as a whole, and not with individual animals.” Id. at *9. The court held that evidence 

“that individual lamprey will likely suffer irreparable harm does not equate to irreparable harm to 

the Tribe.” Id. In so holding, the court in Idaho Rivers distinguished cases where a plaintiff had 

 5 Nw. Envtl. Def. Ctr. v. U.S. Army Corps of Eng’rs, 817 F. Supp. 2d 1290, 1315 (D. Or. 2011) 

(ruling that irreparable harm “must be measured at the species level” in the context of an ESA 

challenge (citing NWF v. NMFS, 422 F.3d 782, 796 (9th Cir. 2005))); S. Utah Wilderness All. v. 

Thompson, 811 F. Supp. 635, 642 (D. Utah 1993) (Plaintiffs failed to establish that they would 

suffer irreparable injury since “the coyote population [would] remain viable. . . . This is not to 

say that the injuries [p]laintiffs assert are not real, but rather that this court finds that the injury is 

not irreparable.”); see also Fund for Animals v. Frizzell, 530 F.2d 982, 986-87 (D.C. Cir. 1975) 

(death of “10,000 snow geese, or from 10 to 15 percent of the fall flight,” was not irreparable 

absent “substantial possibility that the harvest of excessive numbers of these waterfowl will 

irretrievably damage the species”). 

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demonstrated an “affinity” for particular animals, e.g., Humane Soc’y of U.S. v. Bryson, No. 

3:12-CV-00642-SI, 2012 WL 1952329, at *6 (D. Or. May 30, 2012) (finding irreparable harm to 

plaintiff for death of individual sea lions for “which these plaintiffs have developed an affinity” 

because those sea lions are therefore not “fungible”), or where a species is so precarious that “the 

loss of a single individual could result in the extinction of the species,” Makua v. Rumsfeld, 163 

F. Supp. 2d 1202, 1221 (D. Haw. 2001). 

That reasoning applies with equal force in this case. Plaintiffs have not shown an 

“affinity” for particular frogs, and, in fact, do not even provide a declaration from a member who 

alleges to have seen an Oregon spotted frog in the Upper Deschutes Basin. See infra Section 

III.B.2.a. Plaintiffs’ alleged interest in the frog (and it is doubtful that they have any interest at 

all, as demonstrated in Section III.B.2.a below) is therefore “fungible.” 

Nor can Plaintiffs show that the status of the frog is so precarious that “the loss of a 

single individual could result in extinction.” Rather, as the listing decision explains, the frog is 

threatened (the lesser of the two categories for ESA protection), not endangered, and thus as a 

matter of law, not in immediate risk of extinction. 16 U.S.C. § 1532 (6), (20) (defining 

threatened and endangered); 79 Fed. Reg. at 51707 (“[T]he best scientific and commercial 

information does not indicate at the present time that the existing threats are of such a great 

magnitude that Oregon spotted frogs are in immediate danger of extinction . . . .”); Vaughn ¶ 24. 

As such, assuming, arguendo, that Plaintiffs can demonstrate an aesthetic or a recreational 

interest in the frog, they must show harm to the frog (and their interests therein) that is 

“‘significant’ vis-à-vis the overall population,” and not just that individual animals are likely to 

be injured. Pac. Coast, 606 F. Supp. 2d at 1210.

The second rationale underlying the Idaho Rivers decision comes directly from the ESA 

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itself. As the court explained, the ESA expressly permits take (including killing) of threatened 

and endangered species through an incidental take statement and other means. 16 U.S.C. §§ 

1536(o)(2), 1539; Idaho Rivers, 2015 WL 9700887, at *7. Accordingly, “if the demise of 

individual animals was all that was necessary to demonstrate a likelihood of irreparable harm, 

then logically every permitted take of animals under the [ESA] . . . would satisfy this factor of 

the Winter test for preliminary injunction.” Idaho Rivers, 2015 WL 9700887, at *7. The court 

rejected the “notion that the ‘take’ of even one listed salmon or steelhead is an irreparable harm 

. . . in favor of a standard that assesses effects on the species as a whole.” Id. at *9 n.12; see also

Defs. of Wildlife v. Salazar, 812 F. Supp. 2d 1205, 1209 (D. Mont. 2009) (explaining that 

treating harm to an individual animal in the ESA context as irreparable would lead to “an 

irrational result” because “[t]he ESA permits incidental takes”).

This rationale is well founded in the statute. The stated purpose of the ESA is to protect 

“species” not individual animals. 16 U.S.C. § 1531(a)(1)-(2). The ESA achieves that result 

through the consultation process, which ensures agency actions are not “likely to jeopardize the 

continued existence of any endangered species or threatened species.” Id. § 1536(a)(2). While 

the ESA generally prohibits the take of endangered species, that prohibition is not categorical. 

The ESA exempts take (including lethal take) authorized by an incidental take statement under 

section 7(b), so long as that take does not “jeopardize” the species, as well as take authorized 

under a section 10 incidental take permit, so long as that take “will not appreciably reduce the 

likelihood of the survival and recovery of the species in the wild.” Id. § 1539(a)(2)(B)(iv); id. § 

1536(o). Notably, in establishing the hierarchy of protection for listed species, Congress did not 

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prohibit the take of threatened species.6 The ESA itself, therefore, does not contemplate that the 

take of individual animals is irreparable unless that action would “likely jeopardize” the 

continued existence of the species or “appreciably reduce” the fitness of that species. Given that 

the frog is a threatened (not endangered) species, even Plaintiffs refrain from making that sort of 

extraordinary claim.

This rationale is also well supported by the case law. In Humane Society of U.S. v. 

Gutierrez, 523 F.3d 990, 991 (9th Cir. 2008), the Ninth Circuit denied a stay request (subject to 

the Winter standard for preliminary injunctions) intended to protect listed species. Although the 

evidence was undisputed that, absent a stay, “212 to 2,094 Endangered Species Act-listed spring 

Chinook salmon” constituting “0.3 to 4.4 percent of these protected fish” would be killed, the 

court concluded that these deaths will not “result in an irreparable harm.” Id. Similarly, this 

Court in Audubon Society of Portland v. National Marine Fisheries Service, 849 F. Supp. 2d 

1017, 1049 (D. Or. 2011), refused to find irreparable harm to salmon based on the “take” 

authorized in a biological opinion (“BiOp”) absent evidence that the BiOp’s findings and 

conclusions were erroneous.

Plaintiffs argue they need only show “‘a violation of the ESA is likely in the future.’” 

Plaintiffs’ Brief at 28 (quoting Nat’l Wildlife Fed’n v. Burlington N. R.R., Inc., 23 F.3d 1508, 

1511 (9th Cir. 1994)). But as the court explained in Idaho Rivers, that argument misreads 

Burlington Northern:

Plaintiffs assert that numerous cases in this Circuit have rejected 

the notion that irreparable harm is measured at the species 

level. . . . The cases Plaintiffs rely upon, however, are 

distinguishable. In National Wildlife Federation v. Burlington 

 6 Instead, Congress gave the Service discretion to prohibit take of threatened species. 16 U.S.C. 

§ 1533(d). FWS has a “blanket” regulation that extends protections to all threatened species. 50 

C.F.R. § 17.31.

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Northern Railroad, Inc., the Ninth Circuit affirmed the district 

court’s denial of injunctive relief based on the absence of evidence 

of future deaths of members of a protected species, namely grizzly 

bears. This is not tantamount to a statement that the death of 

individual animals would constitute irreparable harm. In fact, the 

court clarified that the standard for an ESA injunction is the 

showing of “a definitive threat of future harm to protected 

species.” 

Idaho Rivers, 2015 WL 9700887, at *8 n.10 (citations omitted). Thus, Burlington Northern

confirms what common sense and the ESA require: a plaintiff must show “‘a definitive threat of 

future harm to protected species,’” not just to individual animals. Id. (citation omitted; emphasis 

added); see also Defs. of Wildlife, 812 F. Supp. 2d at 1209 n.2 (distinguishing Burlington 

Northern using same reasoning). 

Plaintiffs cite a string of cases (Plaintiffs’ Brief at 28), beginning with Marbled Murrelet 

v. Babbitt, 83 F.3d 1060 (9th Cir. 1996), for the proposition that the standard is different in ESA 

section 9 cases. But each of the cited cases was decided in the context of a permanent injunction 

awarded by the court after reaching the merits of a case, not in the context of the extraordinary 

remedy of preliminary injunction. See, e.g., id. at 1062 (discussing propriety of injunction after 

“eight-day bench trial” on the merits). The scope of injunctive relief available after a decision on 

the merits is necessarily broader than that available in the context of a preliminary injunction, 

and “[n]o court has held that as a matter of law, the taking of a single animal or egg, no matter 

the circumstance, constitutes irreparable harm” required to support a preliminary injunction. 

Wild Equity Inst. v. City & County of San Francisco, No. C 11-00958 SI, 2011 WL 5975029, at 

*7 (N.D. Cal. Nov. 29, 2011) (ESA Section 9 case distinguishing Marbled Murrelet and similar 

cases as related to injunctions after the merits of a case are decided). 

In short, Plaintiffs must ultimately show irreparable harm to their own interests, which at 

the very least requires showing a significant impact to the frog at a population or species level. 

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As detailed below, Plaintiffs cannot meet this standard.

2. Plaintiffs Have Provided No Factual Basis to Demonstrate Irreparable Harm 

Absent an Injunction.

a. Plaintiffs Fail to Demonstrate Irreparable Harm to Their 

Organizations or Members.

Plaintiffs’ motion fails at the outset because it does not even argue that WaterWatch, 

Center for Biological Diversity (“CBD”), or any of their members will suffer irreparable harm in 

the absence of an injunction. Plaintiffs therefore fail to make “a clear showing of irreparable 

harm,” and their motion must be denied for that reason alone. Garcia, 786 F.3d at 746.

Plaintiffs’ complete silence on this critical point is hardly surprising under the 

circumstances. This is not a case where the defendant is about to take some action (such as 

cutting down a forest) that will eliminate a species’ critical habitat. Cf. Cascadia Wildlands v. 

Kitzhaber, No. 3:12-cv-00961-AA, 2012 WL 5914255, at *2 (D. Or. Nov. 19, 2012). Nor is this 

a situation where the status quo is causing a population decline in the area affected by the agency 

action. Cf. NWF v. NMFS, 422 F.3d 782, 796 (9th Cir. 2005). To the contrary, there is no 

evidence that the frogs currently affected by the reservoirs are declining in number. 79 Fed. Reg. 

at 51666; Diller ¶ 25; Vaughn ¶ 23. 

Plaintiffs’ declarations confirm the absence of an irreparable harm. WaterWatch’s first 

declarant, Jeffrey Perin, expresses no recreational, aesthetic, commercial, or other interest at all

in the frog; his interest is “as a fly-fisherman” and fishing guide and in ensuring that flows are 

managed for the benefit of those fisheries “instead of only for irrigation.” Perin ¶ 3. The closest 

Mr. Perin comes to identifying an interest in the frog is his belief that “what is harming the frog 

is also harmful to the fish” that he depends on for his livelihood as a river guide. Perin ¶ 11. But 

Mr. Perin makes no claim that he will suffer irreparable harm to his business if the status quo is 

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maintained for another year until the Court reaches the merits of the case or until the section 

7(a)(2) consultation is completed. His business interests are unrelated to the frog or the purpose 

of the ESA. Garcia, 786 F.3d at 746 (fear of death “too attenuated from the purpose of 

copyright” law to establish irreparable harm). Moreover, the Districts’ Interim Measures will 

likely improve the status quo, ensuring Mr. Perin’s interests in fish and flows (and frogs, if he 

has any) will suffer no irreparable harm.

WaterWatch’s second declarant, Kimberley Priestley, also fails to demonstrate a 

cognizable irreparable injury. She identifies no personal, recreational, or aesthetic interest in the 

frog in the Upper Deschutes Basin and does not claim that she will suffer irreparable harm absent 

an injunction. She claims only that she is concerned that “additional delays will result in the 

extirpation of the Oregon spotted frog in the Upper Deschutes River,” and that she is “personally 

and professionally concerned” that maintaining the status quo “will continue to cause harm to the 

Oregon spotted frog unless operations are changed.” Priestley ¶¶ 13, 21. Her concerns for the 

frogs do not suffice for purposes of establishing irreparable harm to her personally, and, even if 

they could, she never explains why a sudden extirpation is likely to occur if the status quo for the 

last 60-plus years is maintained for one or two more seasons. Like the first, this second 

WaterWatch declaration fails to make “a clear showing of irreparable harm.” Garcia, 786 F.3d 

at 746; see also Idaho Rivers, 2015 WL 9700887, at *9 n.11 (finding no irreparable harm where 

Corps has been conducting similar maintenance activity for “more than 50 years” and therefore 

“this is not a case where consequences of the Corps’ dredging activities are largely unknown”).

Apparently recognizing that WaterWatch members have no actual connection to the frog, 

Ms. Priestley further asserts that “WaterWatch will suffer harm to its mission, goals, and 

objectives – indeed its very organizational purpose – if the Upper Deschutes is not returned to a 

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more natural flow regime.” Priestley ¶ 16. But the ESA was intended to protect species, not 

“flow regimes.” Moreover, while she also contends that her organization “suffers financial 

harm” when it “cannot pursue its mission goals” because potential donors will contribute 

elsewhere, these concerns are unrelated to the ESA (Biodiversity Legal Found. v. Badgley, 309 

F.3d 1166, 1177 (9th Cir. 2002) (injunction must be “necessary to effectuate the congressional 

purpose behind the [ESA]”)), and are otherwise purely speculative (Goldie’s Bookstore, 739 

F.2d at 472 (“[s]peculative injury does not constitute irreparable injury”)). Finally, she makes no 

claim that WaterWatch’s mission will be irreparably injured if the status quo (under which 

WaterWatch has operated for its entire existence) is maintained until the Court reaches the merits 

of this case, or until the section 7 consultation is completed.7

CBD’s declarant, Tierra Curry, also fails to demonstrate (or even allege) irreparable 

harm. Ms. Curry recreates in the Upper Deschutes Basin and curiously claims that she has never 

seen an Oregon spotted frog there (despite visiting Sunriver where there are at least 727 breeding 

female frogs). Curry ¶ 12.8

 Ms. Curry gets “frustrated” when she is “unable to observe Oregon 

spotted frogs in areas where their habitat should exist.” Curry ¶ 13. She explains that “when I 

do not encounter frogs in a place where they are supposed to be, I do not feel like I am in the 

wild and my experience is diminished.” Curry ¶ 15. Ms. Curry apparently plans to look for the 

frog again this summer “at La Pine State Park and below Wickiup Reservoir,” and is afraid she 

will be frustrated again. Curry ¶ 14. But her prior inability to locate the frog – despite their 

significant presence at Sunriver and elsewhere in the basin – predates the frog’s listing under the 

 7 Nor does she address the Districts’ Interim Measures, which will likely improve the status quo.

8 Perhaps Ms. Curry should consult with Ms. Simpson, who has had no problem repeatedly 

finding the frog in its natural habitat in each of her many trips to the Deschutes last fall. 

Simpson ¶¶ 18, 44, 83-85, 88. 

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ESA and does not rise to the predicate level of irreparable harm required for an injunction of this 

magnitude. Her fear of not finding them in the future is pure speculation. 

In short, none of these declarations demonstrate that irreparable harm is likely absent an 

injunction. The irrigation projects have been operated in the same manner for many decades; the 

only difference this year is that the Districts are implementing a significant suite of mitigation 

measures designed to improve the status quo. To the extent Plaintiffs actually have some 

recreational or other interest in seeing the frog, those recreational opportunities have not changed 

in decades, and are unlikely to do so in the immediate future. Indeed, “[w]here no new harm is 

imminent, and where no compelling reason is apparent, the district court was not required to 

issue a preliminary injunction against a practice which has continued unchallenged for several 

years.” Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374, 1377 (9th Cir. 1985). 

b. Plaintiffs Fail to Demonstrate that the Frog Will Suffer Irreparable 

Harm Absent an Injunction.

Even assuming Plaintiffs could demonstrate that they will personally suffer irreparable 

harm, in turn, if the frog is significantly harmed, they have made no showing that the frog itself 

will likely suffer such harm absent an injunction.

The decision in South Yuba River Citizens League v. National Marine Fisheries Service, 

Nos. 2:13-cv-00059-MCE, 2:13-cv-00042-MCE, 2013 WL 4094777 (E.D. Cal. Aug. 13, 2013), 

is directly analogous. Environmental groups sought a mandatory preliminary injunction under 

ESA sections 7 and 9 requiring the National Marine Fisheries Service (“NMFS”) to impose 

mitigation measures on the operation of two longstanding hydropower projects, even though the 

NMFS was in the process of reinitiating consultation under the ESA. Id. at *3. The district court 

refused to grant the injunction. As the court explained, the plaintiffs were required to show that 

the “requested relief is necessary to avoid irreparable harm during the interim period that the 

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relief is to be provided,” and in that case, the consultation was to be completed in 10 months. Id. 

at *7. The court found no irreparable harm because one dam “has been in place[] and has 

blocked fish passage . . . for more than seventy years,” and the other dam “was constructed over 

a century ago,” and therefore any effects “have been ongoing for decades.” Id. This result is 

“hardly surprising” “[g]iven the decades that the dams in question have been in place,” and “the 

problematic nature of establishing irreparable harm based on a 10-month window.” Id. at *8. 

Another court reached much the same result in Wild Equity Institute, 2011 WL 5975029. 

In that case, the plaintiffs filed a lawsuit under ESA section 9 and sought a preliminary 

injunction based on the city’s longstanding water pumping activities at a golf course that 

destroyed red-legged frog egg masses, a species listed as threatened. The plaintiffs argued that 

the “take” from lost egg masses was sufficient to establish irreparable harm. Id. at *8. The court 

disagreed, explaining that irreparable harm in the ESA context requires a showing that the 

“action sought to be enjoined will reduce appreciably the species’ likelihood of survival or 

recovery or appreciably diminish the value of their critical habitat.” Id. at *7 (quotations, 

citation, and brackets omitted). The plaintiffs in that case did not (and could not) meet that 

standard because local populations around the golf course were actually increasing, and the 

defendant was taking measures to reduce the level of take. Id. at *8. Thus, as here, “the 

circumstances do not warrant the exceptional act of prohibiting activity that has gone on for 

decades before the case can be decided on its merits.” Id. 

Plaintiffs’ preliminary injunction request in this case suffers from precisely the same 

failings. The three irrigation projects have been in place for nearly seven decades. The Upper 

Deschutes Basin is a “stronghold” for the frog. Diller ¶ 24. The frogs have habituated to the 

managed river basin and the resulting flows have created new habitat that would not exist but for 

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the Districts’ operations. Diller ¶ 11. And, the Districts are taking substantial measures to 

address the effects of their operations pending completion of the BOR’s consultation with the 

FWS. While Plaintiffs speculate about a possible “stochastic event” 9 that may occur in the 

future, Plaintiffs have not come forward with any evidence of population declines in the Upper 

Deschutes Basin. Plaintiffs’ Brief at 11; Vaughn ¶ 23. As in South Yuba, Wild Equity Institute, 

and Idaho Rivers, “the circumstances do not warrant the exceptional act of prohibiting activity 

that has gone on for decades before the case can be decided on its merits.” 

Rather than demonstrating irreparable harm to their own interests, Plaintiffs rest their 

entire argument on the premise that “harm in the form of desiccated egg masses and dead frogs is 

irreparable: it cannot be undone.” Plaintiffs’ Brief at 29. But that truism misses the point. The 

question is whether “the identified harm to the species is ‘“significant” vis-à-vis the overall 

population,’ and not just that individual animals are likely to be injured.” Idaho Rivers, 2015 

WL 9700887, at *7 (citation omitted).10

Equally problematic, Plaintiffs fail entirely to explain why the Districts’ Interim 

Measures are insufficient to avoid any irreparable harm (assuming there was any). For example, 

Plaintiffs maintain that frogs are impaired by variations in water flow below Wickiup Dam, 

which could result in egg desiccation (Plaintiffs’ Brief at 7-8), and insist that they must have 

relief by “the first week of April” to protect those egg masses (Plaintiffs’ Brief at 30). But 

Plaintiffs ignore the fact that under the Interim Measures, the Districts will be providing 

minimum instream flows below Wickiup Dam of 600 cfs that will be fully in place by March 31, 

2016. Vaughn ¶ 28. Simply put, Plaintiffs fail to demonstrate that they will suffer irreparable 

 9 A “stochastic” event is, by definition, an event “characterized by conjecture” and “involving 

chance” and therefore entirely speculative. American Heritage Dictionary (2d ed. 1989).

10 Even if harm to an individual frog or egg mass were enough, as detailed below in Section 

III.D.3, Plaintiffs have not demonstrated the Districts have caused such harm.

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harm, and fail entirely to show irreparable harm to the frog in the absence of an injunction.

3. Plaintiffs’ Long Delay in Seeking Injunctive Relief Belies Their Claims of 

Irreparable Harm.

Plaintiffs’ claims of irreparable harm are also fatally undermined by their delay in 

seeking injunctive relief to protect their interests in the frog. The Ninth Circuit has repeatedly 

held that delay in seeking preliminary injunctive relief shows “a lack of urgency and irreparable 

harm.” Oakland Tribune, 762 F.2d at 1377; see also Garcia, 786 F.3d at 746 (delay of months 

before seeking injunction “undercut Garcia’s claim of irreparable harm”); W. Watersheds Project 

v. Salazar, 692 F.3d 921, 923 (9th Cir. 2012). The reason is that a “preliminary injunction is 

sought upon the theory that there is an urgent need for speedy action to protect the plaintiff’s 

rights,” and that “[b]y sleeping on its rights a plaintiff demonstrates the lack of need for speedy 

action.” Lydo Enters., Inc. v. City of Las Vegas, 745 F.2d 1211, 1213 (9th Cir. 1984) (quotation 

and citation omitted). Even short delays (a year or less) fully demonstrate a lack of urgency.11

The facts here are more extreme than those at issue in the cases cited above. The threats 

Plaintiffs allege from the Districts’ operations have been present since at least 1949. Vaughn ¶ 

11; Britton ¶ 6. The petition to list the frog was submitted in 1989; the FWS found that its listing 

as threatened was warranted in 1993. 58 Fed. Reg. 27260, 27261-62 (May 7, 1993). Plaintiffs 

took no action to protect the frog for 17 years, when CBD finally filed an action seeking to 

compel a listing decision. See In re Endangered Species Act Section 4 Deadline Litig., Case No. 

1:10-mc-00377-EGS (D.D.C.). CBD settled that lawsuit by agreeing to give the FWS nearly two 

 11 See Protect Our Communities Found. v. U.S. Dep’t of Agric., 845 F. Supp. 2d 1102, 1113 

(S.D. Cal. 2012); Quince Orchard Valley Citizens Ass’n v. Hodel, 872 F.2d 75, 79 (4th Cir. 

1989) (nine-month and six-month delays undermined claims of irreparable harm); Citibank, N.A. 

v. Citytrust, 756 F.2d 273, 277 (2d Cir. 1985) (delay of 10 weeks “undercuts the sense of 

urgency that ordinarily accompanies a motion for preliminary relief and suggests that there is, in 

fact, no irreparable injury” (quotations and citation omitted)).

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and a half additional years to issue a proposed listing decision (while requiring a much faster 

response for other species), and then another full year to issue a final decision. Id. at Dkt. 42-1 

(settlement agreement). And even after the frog was listed in August 2014, Plaintiffs still 

proceeded casually, waiting another year and a half to seek injunctive relief. These facts 

demonstrate “a lack of urgency and irreparable harm.” Oakland Tribune, 762 F.2d at 1377. 

C. The Balance of the Equities and Public Interest Weigh Heavily Against Plaintiffs’ 

Injunction Because the Requested Relief Will Actually Harm the Frog.

Every litigant seeking the extraordinary relief of a preliminary injunction must show that 

the balance of the equities and the public interest favor injunctive relief. Winter, 555 U.S. at 22. 

In the context of an ESA case, “Congress has determined that under the ESA, the balance of 

hardships always tips in favor of endangered or threatened species.” See, e.g., Marbled 

Murrelet, 83 F.3d at 1073. However, 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 

benefit the protected species.” All. for the Wild Rockies v. Kruger, 35 F. Supp. 3d 1259, 1267 

(D. Mont. 2014). In “a situation where the species in question would perhaps best be served by 

the absence of an injunction,” the “balance of the equities and public interest prongs [tips] in the 

Defendants’ favor.” Id.; see also Native Ecosystems Council v. Krueger, 40 F. Supp. 3d 1344, 

1351 (D. Mont. 2014) (“speculative harms to such species” outweighed by “strong public 

interest in protecting municipal water supplies from catastrophic wildfire”). 

Here, Plaintiffs simply presume that the public interest and equities weigh in their favor 

and make the common mistake of “conflat[ing] the interests of the plaintiff and the interests of 

the endangered or threatened species.” All., 35 F. Supp. 3d at 1266. Plaintiffs provide no 

evidence that the injunctions they are requesting will actually benefit the frog. Plaintiffs instead 

propose two different injunctions (the “Regulated Option” and the “Run-of-the-River Option”) 

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that actually result in “substantially different flow regimes.” Ramey ¶ 22. Yet, “Plaintiffs are 

unable to provide a biological basis for proposing a single flow regime.” Vaughn ¶ 32.a. 

Without any scientific substantiation, Plaintiffs base their radically different injunction 

proposals on the (false) premise that flows and habitat that “more closely approximate natural 

conditions in the Upper Deschutes Basin” are inherently better for the frog. Simpson ¶ 92.12 

There are two independent reasons why Plaintiffs’ “natural conditions” argument fails.

First, there is no scientific basis for the premise that “natural conditions” are superior. 

As explained by both Dr. Diller and Mr. Vaughn, there is no evidence the frog was more 

abundant or widely distributed in the Deschutes prior to the construction of the irrigation 

projects. Diller ¶ 25; Vaughn ¶ 12. Indeed, more than half of the current number of frogs in the 

Upper Deschutes Basin are found in areas such as Sunriver and Crane Prairie Reservoir, which 

are manmade and do not reflect “natural conditions.” Supra Section II.B. 

Second, their proposed relief will not (and in fact cannot) turn back time and magically 

return the river to “natural conditions.” As Mr. Ramey explains, the three reservoirs have altered 

the physical morphology of the river itself, including its depth and width and the manner in 

which the river interacts with the floodplain. Ramey ¶¶ 12, 22. Over the past 60-plus years, the 

managed system has created new wetland habitats that are now dependent on the altered 

hydrology of the Upper Deschutes. Ramey ¶ 12. Turning on the faucet to ratchet up flows will 

not return the habitat to “pre-reservoir” conditions. Ramey ¶ 21. 

 12 There are serious questions as to whether Ms. Simpson possesses the requisite academic 

training or practical experience to qualify as an expert under the Daubert standard regarding the 

effects of the Districts’ operations on the frog. While she has conducted field work on the frog, 

and has a working knowledge of its habitat, she is neither a herpetologist like Dr. Diller nor a 

hydrologist like Mr. Ramey. Nor has she been steeped in the scientific discussions over the last 

seven years between the Districts and state, federal, and tribal wildlife managers on what is best 

for the frog in light of the substantial data gaps in the best available science.

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More importantly, Plaintiffs’ injunction is highly likely to result in serious negative 

impacts to the frog. The dramatic and abrupt changes proposed by Plaintiffs “would not be 

scientifically prudent” and will violate precautionary principles of conservation biology. Diller 

¶¶ 15-16. Immediately increasing winter flows from 20 to 30 cfs to 600 cfs is “irresponsible,” as 

are changes that could completely drain or deplete reservoir water storage (Vaughn ¶ 12; Diller 

¶ 16); these measures will result in precisely the kind of stochastic event that Plaintiffs claim 

they are trying to avoid. See Diller ¶¶ 38-41; Vaughn ¶¶ 25-29, 32.e. 

The radically different options proposed also demonstrate that Plaintiffs have not 

carefully (if at all) thought through what the frog actually needs or whether their proposed 

injunction will actually produce those results. This lack of foresight is unsurprising given that 

Plaintiffs demonstrate very little, if any, actual interest in the frog. Their declarants display an 

“interest in this litigation” (not an interest in the frog) and in preserving the “best trout fisheries” 

(Perin ¶ 3), and their organizations’ “mission, goals, and objectives” to ensure that the river is 

“returned to a more natural flow regime” (Priestley ¶ 16). Those who do have a vested interest 

in the frogs’ future – the Districts and their hydrologists and wildlife biologists, and the tribal, 

state, and federal wildlife managers who have been working for years to develop the best 

strategies for the frog – are not so cavalier. They have been careful not to experiment with the 

frog’s fate by embarking on dramatic and sudden flow regime changes, especially given the gaps 

in available data. Although Plaintiffs profess to know better than the experts, and propose 

injunctive relief that conveniently coincides with their “mission” to restore the river to a “natural 

flow regime,” they provide no evidence that this injunction is in the frog’s best interests.

Indeed, Plaintiffs’ cursory hydrological analysis (by Gregory Kamman) is limited to 

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confirming that there is enough water in the reservoirs to achieve Plaintiffs’ request,13 and 

contains no analysis of the ecological impact of immediately and radically changing the 

hydrograph that has existed for more than 60 years. Ramey ¶ 7. In so doing, Plaintiffs overlook 

numerous negative consequences. Their reservoir management proposals will increase 

vegetation density (rendering breeding habitat unsuitable) and aid invasive fish and bullfrogs that 

prey on the frog, which could, in turn, “completely extirpate Oregon spotted frogs.” Diller ¶¶ 

20-22. In addition, the Wickiup releases they demand will drastically reduce the number of days 

of wetland connectivity (a feature Plaintiffs claim is essential) for the mainstem Deschutes 

breeding sites. Ramey ¶ 26. Their minimum instream flow demand of 40 cfs below Crescent 

Reservoir would counter-productively result in less water for habitat they believe is essential. 

Ramey ¶ 28. And, if the above were not enough, Plaintiffs’ Run-of-the-River option could draw 

down, and even drain, Wickiup and Crane Prairie Reservoirs and seriously harm the numerous 

frogs residing there. Ramey ¶ 20; Vaughn ¶ 32.b. Given these adverse consequences, the frogs 

here are “best . . . served by the absence of an injunction.” All., 35 F. Supp. 3d at 1267. 

If granted, the requested relief would result in other externalities, including an increase in 

the frequency and severity of flooding in the City of Tumalo (Ramey ¶ 27), the elimination of 

the use of stored water for irrigation for at least one irrigation district (Horrell ¶ 14), and the 

abridgement of others’ vested water rights (Britton ¶ 20). It would also require at least one of the 

Districts to store water in violation of its contract with the BOR, which allows storage 

exclusively for irrigation and other narrow purposes not relevant here. Britton ¶ 20.

Plaintiffs’ injunction will create widespread economic hardship for ranchers and farmers 

 13 While Mr. Kamman purports to agree with Ms. Simpson’s notions as to what the frogs need, 

he has absolutely no foundation to express such an opinion. He is neither a wildlife biologist nor 

a herpetologist and has no prior experience with the frog. 

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and will adversely affect the central Oregon economy. See Britton ¶¶ 15-19; Horrell ¶¶ 14-17; 

Rieck ¶¶ 13-16. Beyond the economic hardship, the injunction threatens the way of life of many 

family farmers by impairing their ability to operate a financially viable farm. Macy ¶¶ 9-11.

The injunction would also require the Districts to violate state water law. In order to 

meet their proposed flow requirements, the Districts would have to impound “live flow” in the 

summer months, but the Districts have no legal right to do so. Britton ¶ 20. Only the OWRD 

can authorize such an impoundment. Or. Rev. Stat. § 537.130 Plaintiffs are not entitled to an 

injunction that violates state law. Valdivia v. Schwarzenegger, 599 F.3d 984, 995 (9th Cir. 2010) 

(“federalism principles require the reconciliation of the state law and federal injunctions”).

An injunction will also compromise the ongoing HCP process. Vaughn ¶ 30. The 

Deschutes Basin HCP is a rare example of collaboration between disparate federal, state, and 

local governmental entities, private parties, and tribal stakeholders to foster species 

enhancement. Id. The process, if carried to fruition, will provide far greater long-term benefits 

to the frog than any injunction could achieve. Diller ¶ 18. Plaintiffs risk fracturing that 

cooperative coalition by forcing economic ruin on the farmers and ranchers who rely on these 

projects for stored irrigation water, and creating an unnecessary judicial showdown between 

rural Oregon property (water) rights and Plaintiffs’ unsubstantiated concerns for the frog. 

At bottom, Plaintiffs “are proposing a very expensive and very risky experiment” that 

lacks the necessary scientific controls and foundation. Vaughn ¶ 32.c. The frog, the general 

public, and central Oregon farmers and ranchers are best served by denying Plaintiffs’ motion. 

D. Plaintiffs Are Unlikely to Succeed on the Merits.

1. Plaintiffs Lack Standing.

To satisfy the constitutional standing requirements of Article III, a plaintiff must show, 

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among other things, that “(1) it has suffered an ‘injury in fact’ that is (a) concrete and 

particularized and (b) actual or imminent, not conjectural or hypothetical;” and “(2) the injury is 

fairly traceable to the challenged action of the defendant.” Friends of the Earth, Inc. v. Laidlaw 

Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000). In environmental cases, the relevant 

showing “is not injury to the environment but injury to the plaintiff.” Id. at 181. A plaintiff must 

make “a factual showing of perceptible harm,” and it is not enough to allege that “some 

(unidentified) members have planned to visit some (unidentified) small parcels affected by” the 

agency action “and will suffer (unidentified) concrete harm as a result.” Summers v. Earth 

Island Inst., 555 U.S. 488, 497-99 (2009) (quotation and citations omitted). Furthermore, a 

“mere ‘interest in a problem,’ no matter how longstanding the interest and no matter how 

qualified the organization is in evaluating the problem, is not sufficient.” Sierra Club v. Morton, 

405 U.S. 727, 739 (1972).

a. WaterWatch Lacks Standing.

WaterWatch lacks standing because its complaint fails entirely to make any allegations of 

injury to itself or its members. This failure alone requires its dismissal. Chapman v. Pier 1 

Imports (U.S.) Inc., 631 F.3d 939, 954 (9th Cir. 2011). 

Even if its complaint contained adequate standing allegations, its declarations fail to 

demonstrate an injury in fact or causation. Mr. Perin’s interest (as detailed above) is in ensuring 

adequate flows for fly fishing. The closest he comes to discussing the frog is his claim that 

“what is harming the frog is also harmful to the fish.” Perin ¶ 10. This speculation is not a “‘a 

factual showing of perceptible harm.’” Summers, 555 U.S. at 499 (citation omitted). Moreover, 

any injury related to river flows is caused by legal water appropriations dating back over a 

century. Mr. Perin’s speculative injuries are not “fairly traceable” to any alleged ESA violation.

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Ms. Priestley also fails to allege a concrete injury related to the frog, asserting only 

generically that she is “personally and professionally concerned” about it. Priestley ¶ 13. But a 

“mere ‘interest in a problem’ . . . is not sufficient.” Morton, 405 U.S. at 739. Ms. Priestley 

further states that WaterWatch has (unidentified) “members” who like to “view wildlife” at 

(unidentified) places in the “Deschutes Basin.” Priestley ¶¶ 14-15. But it is well settled that a

plaintiff cannot demonstrate standing with allegations that “some (unidentified) members” will 

visit an area “and will suffer (unidentified) concrete harm as a result.” Summers, 555 U.S. at 

497-98. WaterWatch lacks standing and its claims should be dismissed.14

b. CBD Lacks Standing.

CBD sued only BOR and therefore must trace its injury to the BOR’s conduct. CBD 

bases its standing solely on the Curry Declaration. Ms. Curry, as explained above, alleges she is

frustrated because she is unable to find the frog in the Deschutes due to habitat degradation. But 

this habitat degradation occurred many decades ago, and her testimony reveals that her 

“frustration” dates back 15 years to 2001. Curry ¶ 12. There is no credible argument that these 

long-standing injuries were caused by the BOR’s alleged failure to comply with its ESA 

obligations, which were first triggered in August 2014. CBD therefore lacks standing.

2. The BOR Has Initiated Consultation Under ESA Section 7(a)(2) and 

Complied with the Requirements of Section 7(d).

Plaintiffs’ two procedural claims against the BOR are devoid of merit. First, Plaintiffs 

claim that the BOR has violated section 7(a)(2) by failing to initiate consultation with the 

 14 WaterWatch is not saved by Ms. Priestley’s claim that WaterWatch will “suffer harm to its 

mission, goals, and objectives.” Priestley ¶ 16. These claims are a “mere ‘interest in a 

problem,’” insufficient to confer standing. Morton, 405 U.S. at 739; Nat’l Taxpayers Union, Inc. 

v. United States, 68 F.3d 1428, 1433 (D.C. Cir. 1995) (allegation that regulation “frustrated” the 

plaintiffs’ objectives “is the type of abstract concern that does not impart standing”). Moreover, 

whether WaterWatch will “suffer financial harm” because it will lose donors and volunteers is 

entirely “conjectural or hypothetical” not “actual or imminent.” Laidlaw, 528 U.S. at 180. 

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Districts regarding Crane Prairie and Wickiup Dams. The fatal flaw in this argument is that the 

BOR has, in fact, initiated consultation with the FWS on the irrigation projects’ effects on the 

frog. Sewell, Ex. 22. This claim, therefore, will not succeed.15

Second, Plaintiffs claim that the BOR has violated section 7(d), which precludes an 

agency from making “any irreversible or irretrievable commitment of resources” that forecloses 

“any reasonable and prudent alternative measures.” 16 U.S.C. § 1536(d). Yet, the BOR issued a 

detailed memorandum explaining that its actions comply with ESA section 7(d), that it “has not 

made any commitment of resources whatsoever,” that it retains sufficient discretion to impose 

reasonable and prudent alternatives during consultation, that the proposed mitigation measures 

likewise do not foreclose such alternatives, and that the mitigation measures are likely to 

improve habitat conditions for the frog. U.S. Ex. F. Plaintiffs do not address BOR’s 

memorandum or explain why its conclusions are arbitrary and capricious. As such, Plaintiffs 

have failed entirely to demonstrate that “the facts and law clearly favor the moving party.” 

Garcia, 786 F.3d at 740 (internal quotation marks and citation omitted). 

3. Plaintiffs Are Unlikely to Prevail in Demonstrating that the Districts or the 

BOR Will Engage in Ongoing Take of Frogs.

To prove a violation of ESA section 9 at trial, Plaintiffs must demonstrate that the 

defendants (a) took some action; (b) that caused (in fact and proximately); (c) some ongoing 

“take” to a frog. 16 U.S.C. §§ 1538(a)(1)(A), 1540(g)(1)(A) (defendant must be “in violation” of 

ESA); Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687, 700 n.13 

(1995) (take claims subject to “‘but for’ causation” as well as “ordinary requirements of 

proximate causation and foreseeability”). “[T]ake” includes “wound” or “kill” as well as 

 

15 Plaintiffs maintain that the scope of consultation is too narrow. This argument has no merit 

either as the BOR explained clearly that “our evaluation considers the entirety of Deschutes 

Project operations and maintenance.” U.S. Ex. F. 

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“harm.” 16 U.S.C. § 1532(19). “Harm” is defined to “mean[] an act which actually kills or 

injures wildlife,” and could include “significant habitat modification or degradation where it 

actually kills or injures wildlife by significantly impairing essential behavioral patterns, 

including breeding, feeding or sheltering.” 50 C.F.R. § 17.3. In short, Plaintiffs must prove that 

the Districts’ actions are proximately causing the frog’s death or injury. 

Plaintiffs do not even identify the elements of their section 9 cause of action, let alone 

marshal the facts required to demonstrate that those elements are met. For this reason alone, 

Plaintiffs have failed to meet their “doubly demanding” burden of showing that “the facts and 

law clearly favor the moving party.” Garcia, 786 F.3d at 740 (quotations and citation omitted).

Equally dispositive, Plaintiffs muster no credible evidence to show that the Districts’ 

actions are either killing or injuring frogs. Plaintiffs’ only example of a documented frog death 

comes from evidence of desiccated eggs discovered in May 2014 when water levels dropped at 

East Slough. Plaintiffs’ Brief at 9. This evidence does not show illegal take at all, because the 

event predates the listing of the species in August 2014. Regardless, Mr. Ramey explains that 

this egg desiccation cannot be causally linked to the Districts because water levels in the East 

Slough appear linked to groundwater, not surface water, and the 2014 stranding in East Slough 

occurred during a time when flows in the Deschutes River were actually increasing. Ramey ¶ 

23; Diller ¶ 35. In other words, at certain water levels, there is no direct correlation between 

surface water levels and the amount of water in the East Slough, and Plaintiffs, therefore, cannot 

prove causation. Indeed, Plaintiffs’ singular focus on flows ignores the critical role that 

groundwater plays in the hydrology of frog habitat on the Deschutes mainstem. Ramey ¶¶ 8-10.

Plaintiffs will not be able to demonstrate future take. Even if this past egg desiccation 

could be linked to the Districts’ actions, Plaintiffs have no evidence (and do not even argue) that 

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similar egg strandings are likely to occur moving forward given the Interim Measures instituted, 

including the 600 cfs instream flow that will be in place as of March 31, 2016 and the stable 

reservoir levels that are designed to benefit breeding and rearing. Vaughn ¶ 28; Diller ¶ 28. 

Plaintiffs’ only other evidence of “injury” comes from Ms. Simpson, who opines that 

certain frogs she observed for brief periods were “likely to have increased mortality,” that 

“mortality rates were high,” or that observed frogs were highly likely not to survive. Simpson ¶¶ 

83-89. But as Dr. Diller explains, these allegations are “highly speculative” and, in fact, dubious 

given the persistence of the frog for decades in this exact habitat. Diller ¶¶ 28, 37. Moreover, 

the “high mortality” rates that Ms. Simpson complains about are part of the natural cycle for the 

frog. Diller ¶ 31 (frogs are r-selected species with high reproduction rates with low survival); 79 

Fed. Reg. at 51559-60 (normal “laying habits” make eggs “extremely vulnerable to 

desiccation”). Under the best conditions, few Oregon spotted frogs ever reach adulthood or “live 

near the species’ maximum life span.” Diller ¶ 31. As a result, “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).” Id. Simply put, Ms. Simpson’s allegations of take are “highly 

speculative” and will not prevail at trial. Id.; see also Diller ¶¶ 30-37 (Plaintiffs’ evidence fails 

to show operation of reservoirs causes harm to frog).

Plaintiffs have put forward no actual evidence of take, and their conjectural theories 

based on (likely unqualified) expert testimony have serious factual and causation problems. 

Plaintiffs will not succeed on the merits of these claims. 

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IV. CONCLUSION

For all of these reasons, Plaintiffs’ motion for preliminary injunction should be denied. 

The Districts respectfully submit that the frog would be best served by allowing the FWS – the 

entity with the unique expertise to grapple with the issues presented at bar – to complete its ESA 

section 7(a)(2) consultation without interruption or interference.16

Respectfully submitted this 2nd day of March, 2016.

STOEL RIVES LLP

/s/ Beth S. Ginsberg

Beth S. Ginsberg, OSB #070890

Jason T. Morgan, WSBA #38346 (pro hac vice)

600 University Street, Suite 3600

Seattle, WA 98101

(206) 624-0900

(206) 386-7500 Fax

beth.ginsberg@stoel.com

jason.morgan@stoel.com

David E. Filippi, OSB #965095

david.filippi@stoel.com

Kirk B. Maag, OSB #105507 

kirk.maag@stoel.com

STOEL RIVES LLP

900 SW Fifth Avenue, Suite 2600

Portland, OR 97204

Telephone: (503) 224-3380

Facsimile: (503) 220-2480

Attorneys for Arnold Irrigation District, Central Oregon 

Irrigation District, Lone Pine Irrigation District, North 

Unit Irrigation District, and Tumalo Irrigation District

 16 The Districts object to Plaintiffs’ request to waive bonding and ask for briefing on that issue if 

the Court is inclined to grant any injunctive relief.

Case 6:15-cv-02358-JR Document 43 Filed 03/02/16 Page 43 of 44
Certificate of Service

81127676.7 0050708-00005

CERTIFICATE OF SERVICE

I hereby certify that on this 2nd day of March, 2016, I filed a true and correct copy of the 

foregoing document with the Clerk of the Court for the United States District Court – District of 

Oregon by using the CM/ECF system. Participants in this Case No. 15-cv-02358-TC, and 6:16-

cv-00035-TC, who are registered CM/ECF users, will be served by the CM/ECF system.

/s/ Beth S. Ginsberg 

Beth S. Ginsberg, OSB #070890 

Case 6:15-cv-02358-JR Document 43 Filed 03/02/16 Page 44 of 44