HON. THOMAS S. ZILLY

 

Richard A. Smith, WSBA #21788

Smith & Lowney, PLLC

2317 East John Street

Seattle, Washington 98112

Phone: (206) 860-2883

Fax: (206) 860-4187

 

 

 

 

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

 

THREATENED PUGET SOUND CHINOOK; WASHINGTON TROUT; and NATIVE FISH SOCIETY,   Plaintiffs,   v.   JEFFREY P. KOENINGS; WASHINGTON DEPARTMENT OF FISH AND WILDLIFE; WASHINGTON FISH AND WILDLIFE COMMISSION; RUSS CAHILL; Will Roehl, Ron Ozment, Lisa Pelly, Dawn Reynolds, Fred Shiosaki, Bob Tuck, R.P. Van Gytenbeek, and Kelly White,   Defendants, ___________________________________

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No. CV03-0687Z   MOTION FOR PRELIMINARY INJUNCTION   NOTE FOR MOTION CALENDAR: April 11, 2003   ORAL ARGUMENT REQUESTED

I.          INTRODUCTION

            Under Fed. R. Civ. P. 65, plaintiffs Threatened Puget Sound Chinook, Washington Trout, and the Native Fish Society (collectively, "WT") hereby ask the Court to issue a preliminary injunction enjoining defendants Washington Department of Fish and Wildlife, its director, the Washington Fish and Wildlife Commission, and its members (collectively, "WDFW") from releasing juvenile coho salmon and steelhead trout from a total of thirty particular hatchery programs where such releases would cause harm to threatened Puget Sound chinook by predation in violation of Section 9 of the Endangered Species Act.  A preliminary injunction should be issued because (1) WT is likely to prevail on its claim that WDFW is operating these particular coho and steelhead hatchery programs in a manner that is reasonably certain to take threatened Puget Sound chinook salmon in violation of the ESA and (2) a preliminary injunction is necessary to prevent the irreparable harm to threatened chinook that would otherwise result from these hatchery releases.

            Hatchery operations are widely recognized as one of the primary causes of the decline of chinook in the Puget Sound.  See, e.g., Proposed Puget Sound Chinook Resource Management Plan at 104-107 (attached as Exh. B to the Declaration Of Sam Wright, filed herewith).  As the National Marine Fisheries Service (“NMFS”) has noted,

Hatchery fish have been identified as one of the factors causing population declines in a number of ESUs.[1]  There is a substantial body of scientific evidence to show that hatchery fish can harm natural fish by preying on them … and creating other effects.

 

65 Fed. Reg. 42,422 at 42,446 (July 10, 2000).  WT has brought this case to address the impacts of state coho and steelhead hatcheries on the Puget Sound chinook ESU.

II.         JURISDICTION AND STANDING

            This Court has jurisdiction over the state officials named as defendants in this case.  See, Ex Parte Young, 209 U.S. 123 (1908); NRDC v. California Department of Transportation, 96 F.3d 420 (9^th Cir. 1996).  In addition, plaintiffs’ declarations demonstrate that plaintiffs in this case satisfy the constitutional requirements for standing.  Declaration Of Ramon Vanden Brulle; Declaration Of Bill McMillan; Declaration Of Hugh Lewis; Friends of the Earth v. Laidlaw, 528 U.S. 167 (2000); Ecological Rights Foundation v. Pacific Lumber Co., 230 F.3d 1141, 1147-1153 (9^th Cir. 2000).

III.       FACTUAL BACKGROUND

A.        Threatened Puget Sound Chinook.

 

            Chinook salmon (O. tshawytscha) are easily distinguished from other Oncorhynchus species by their large size – up to 120 pounds.  63 Fed. Reg. 11,482 at 11,483 (Mar. 9, 1998).  Almost all chinook in Puget Sound are anadromous, in that adults migrate from saltwater into rivers where they spawn, juveniles rear in freshwater, and then juveniles migrate back to Puget Sound and the ocean where most growth and maturation takes place.  Declaration Of Sam Wright ¶ 4-6.  Survival rates in both the freshwater and saltwater life stages vary substantially, and the time that fish spend at each life stage varies between fish.  Id. ¶ 5.  Mature adults leave saltwater and return to their natal streams anywhere from early spring to mid-fall.  Id. ¶ 6.  Adults spawn from August through November by depositing and covering their eggs in depressions they dig in the gravel (called "redds").  Id. ¶ 5.  Eggs incubate through most of the winter, and fry emerge from the gravel in spring.  Id.  Some fry migrate to the estuary shortly after emergence, while others rear in freshwater for varying lengths of time up to one year or more before migrating to saltwater.  Id. ¶ 6.

During the juvenile rearing stage, juveniles that are actively feeding are known as fingerlings until they reach the stage of physiological readiness to migrate to saltwater.  Id. ¶ 5.  The set of physiological changes that prepare juveniles for the transition to saltwater is referred to as smolting.  Id.  After the juveniles make the transition to saltwater, they grow rapidly and may reach maturity after one to five years in marine waters.  Id. ¶ 6.  During this time, some fish migrate entirely within Puget Sound while most extend their migration into the ocean and north along the Canadian coast.  Id.  The life cycle is complete when mature adults return to freshwater.  Id. ¶ 5-6.  All chinook die after spawning, and their carcasses serve as an important source of nutrients to the river ecosystem near the spawning areas.  Id.  

            NMFS listed the Puget Sound chinook ESU as "threatened" in 1999.  50 C.F.R. § 223.102(a)(16); 64 Fed. Reg. 14,308 (Mar. 24, 1999).

Overall abundance of chinook salmon in [the Puget Sound ESU] has declined substantially from historical levels, and many populations are small enough that genetic and demographic risks are likely to be relatively high.  Both long- and short-term trends in abundance are predominantly downward, and several populations are exhibiting severe short-term declines.  Spring chinook salmon populations throughout this ESU are all depressed.

 

63 Fed. Reg. at 11,494.

            Geographically, the ESU "includes all naturally spawned chinook populations residing below impassable natural barriers … in the Puget Sound region from the North Fork Nooksack River to the Elwha River on the Olympic Peninsula, inclusive."  64 Fed. Reg. at 14,313.  Generally, any chinook spawned naturally in a river or stream in this area, no matter the origin of its parents, is protected as threatened, while any chinook spawned in a hatchery is not.  Id. at 14,324.  Exceptions to this general rule apply to chinook of five hatchery populations – Kendall Creek (Spring run only), North Fork Stillaguamish, White River (Spring run only), Dungeness River, and Elwha River – these hatchery chinook are considered to be "essential for recovery" and therefore are also protected as threatened.  Id. at 14,313 – 314 and 14,319. 

B.        Hatchery salmon prey on threatened chinook.

            In the proposed chinook hatchery resource management plan submitted by WDFW to NMFS in September 2002, WDFW identifies predation on wild chinook juveniles as an effect of hatchery salmon releases:

Predation

Hatchery-origin fish may prey upon juvenile wild chinook at several stages of their life history.  Newly released hatchery chinook smolts have the potential to prey on wild fry and fingerlings that are encountered in freshwater during downstream migration, or if the hatchery fish residualize[2] prior to migrating.  Hatchery-origin smolts, sub-adults, and adults may also prey on wild chinook of susceptible sizes and life stages (smolt through sub-adult) in estuarine and marine areas where they commingle.  Hatchery chinook planted as non-migrant fry or fingerlings … also have the potential to prey upon wild-origin chinook in freshwater and marine areas where they occur.

 

Hatchery production may also have an indirect effect on predation.  Large concentrations of migrating hatchery fish may attract predators (fish, birds, and seals) and consequently contribute indirectly to predation of wild fish.  The presence of large numbers of hatchery fish may also alter wild chinook behavioral patterns, potentially influencing their vulnerability and susceptibility to predation.  Alternatively, a mass of hatchery fish migrating through an area may overwhelm predators, providing a beneficial, protective effect to co-occurring wild fish.

 

Wright Dec. ¶ 10, Exh. B (RMP at 106, see also 111) (underline added).

            Releases of hatchery coho and steelhead have the same types of predation effects on threatened chinook juveniles.  Wright Dec. ¶ 11.  Coho and steelhead yearlings, like those released in the hatchery programs at issue, are opportunistic feeders and highly successful predators on smaller fish.  Id. ¶ 13. 

The scientist who leads WDFW’s Hatchery/Wild Interactions Unit and Ecological Interactions Team, Todd N. Pearsons, has written about predation in the scientific literature:

Hatchery produced fish may compete with, prey upon, increase disease to, alter predator consumption of, and alter behavior of wild conspecifics and NTT[3] ….

….

Greater numbers of hatchery target smolts increases interaction potentials between hatchery target fish and NTT in the freshwater migration corridor, freshwater rearing area (e.g., if hatchery target fish residualize), estuary, and ocean.  Type I interactions are those that occur between hatchery target fish (e.g., smolt, residual, or adult) and NTT.  ….  Type I interactions are non-natural because humans artificially rear and release the target fish.  hatchery fish are typically more numerous, more concentrated, larger, and in some instances more aggressive than wild fish.  These differences can confer dominance status to hatchery fish, decrease the size refuge of NTT to predation by target hatchery fish, and change the functional and numerical response of predators to mixed groups of target hatchery and NTT.

 

Wright Dec. Exh. C at 10, 12-13 (citations omitted) 

            The relatively large size of hatchery coho and steelhead, as compared to naturally occurring fish of these species, compounds the predation problem by increasing the maximum size of juvenile threatened chinook that may be taken as prey.  Wright Dec. ¶ 13.  Scientific

studies, including work published by WDFW’s Mr. Pearsons, have shown that hatchery coho and steelhead will prey on juvenile chinook up to 58% and 44%, respectively, of the hatchery fish’s length.  Id. ¶ 13-14. 

Scientists have found that hatchery fish can eat lots of juvenile chinook.  Id. ¶ 15-16.  One such study estimated that 532,000 hatchery salmon consumed 7.5 million juvenile chinook in a California river.  Id. ¶ 16.  Here, WDFW’s own plans show that large numbers of juvenile threatened chinook will be available as potential forage at the times and places when hatchery coho and steelhead are scheduled for release in Puget Sound streams.  Id. ¶ 15.  The California study gave a rate of 14 juvenile chinook consumed per hatchery salmon.  Id. ¶ 17.  Assuming that just one juvenile chinook would be consumed by each of the hatchery coho and steelhead from the programs at issue in this case yields an estimate of approximately 5.7 million juvenile chinook lost.  Id.  Even a more conservative assumption of one threatened chinook lost per each ten hatchery coho and steelhead renders an estimated loss of more than one half million threatened chinook juveniles.  Id.

C.        The coho hatchery program releases sought to be enjoined

WT seeks to enjoin the eleven WDFW hatchery coho releases, involving 3.6 million or so hatchery coho, identified by Appendix A.  See, Appendix A.  These are all releases of numerous, large, yearling hatchery coho (17 to 15 fish per pound, or about five inches in average length) to freshwater habitats where juvenile threatened chinook are likely to be present during the time of the release.  Wright Dec. ¶¶ 13, 18-32.  WT is not seeking to enjoin WDFW hatchery coho releases identified by Appendix B because they involve either releases of smaller sized coho or releases to habitats where there is no historic natural chinook population.  See, Appendix B.  WT also does not seek an injunction against numerous sizeable Tribal fingerling and yearling coho hatchery releases.

D.        The steelhead hatchery program releases sought to be enjoined

            Appendix C to this motion lists the nineteen WDFW hatchery steelhead releases, involving over two million hatchery steelhead, that WT seeks to enjoin with this motion.  See, Appendix C.  These are all releases of numerous, large, yearling hatchery steelhead (9 to 5 fish per pound, or averaging about 6 ½ to 8 inches in length) to freshwater habitats where juvenile threatened chinook are likely to be present during the time of the release.  Wright Dec. ¶¶ 13, 18-32.  WT does not here seek to enjoin Tribal fingerling and yearling steelhead hatchery releases.

E.         Harm to threatened chinook resulting from the challenged WDFW coho and steelhead hatchery releases is imminent and would be substantial.

 

            In addition to causing the loss of an unknowable but large number of juvenile threatened chinook, the planned WDFW releases of hatchery coho and steelhead at issue would severely imperil the recovery of indigenous populations of threatened Puget Sound chinook.  Wright Dec. ¶ 17-18.  This harm to threatened chinook recovery is due to several factors: the great numbers of coho and steelhead predators that would be dumped on top of relatively modest and depressed threatened chinook juvenile populations; the large physical size and corresponding increased predation potential of the hatchery coho and steelhead relative to their naturally-spawned counterparts of the same species with which the chinook evolved; and the common habit of hatchery steelhead to become residents in freshwater habitats, thus increasing their exposure to and predation on threatened chinook juveniles.  Id. ¶ 18.  If these coho and steelhead hatchery releases take place as planned by WDFW, significant river basin-specific impacts on threatened Puget Sound chinook would result in many areas.  Id. ¶ 19. 

IV.       ARGUMENT

            This motion asks the Court to issue a preliminary injunction preventing WDFW from releasing coho and steelhead yearlings from the particular hatchery facilities identified in Appendices A and C.  As set forth below, such relief is appropriate because the release of these hatchery coho and steelhead would be reasonably certain to harm threatened Puget Sound chinook individuals and the threatened Puget Sound chinook ESU.

A.        ESA standards for take liability and injunctive relief

            1.         The ESA prohibits the "take" of threatened Puget Sound chinook.

            The ESA prohibits any person from "taking" an endangered species.  16 U.S.C. § 1538(a)(1)(B).  The ESA defines "take" as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."  Id. § 1532(19).  This is the broadest take prohibition in any federal wildlife statute:  "'Take' is defined … in the broadest possible manner to include every conceivable way in which a person can 'take' or attempt to 'take' any fish or wildlife."  S. Rep. No. 307, 93d Cong., 1^st Sess. 14 (1973), reprinted in 1973 USCCAN 2989, 2995.

            Any harm to listed fish constitutes take.  16 U.S.C. § 1532(19).  By regulation, NMFS has defined "harm" to include:

significant habitat modification or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including breeding, spawning, rearing, migrating, feeding, or sheltering.

 

50 C.F.R. § 222.102.  In promulgating this regulation, NMFS explained that habitat modification that significantly impairs essential behaviors constitutes injury and a prohibited take.  See 64 Fed. Reg. 60,727 at 60,728 (Nov. 8, 1999).  In Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon, 515 U.S. 687 (1995), the U.S. Supreme Court upheld the analogous regulatory definition of "harm" promulgated by the Fish and Wildlife Service.

            Harassment also constitutes take.  16 U.S.C. § 1532(19).  "Harassment" includes unintentional acts that make it more difficult for an ESA-listed species to breed, feed, shelter, reproduce or raise its offspring.  H.R. Rep. No. 412, 93d Cong., 1^st Sess. at 11 (1973); see 50 C.F.R. § 17.3 (Fish and Wildlife Service regulatory definition).  The legislative history explains that the word "harass" allows agencies to "regulate or prohibit the activities of birdwatchers where the effect of those activities might disturb the birds and make it more difficult for them to hatch and raise their young."  H.R. Rep. No. 412, supra, at 11.

            Under Section 4(d) of the ESA, NMFS has the authority to issue regulations extending the take prohibition to threatened species.  NMFS has, in fact, adopted exactly such a regulation making the take prohibition applicable to Puget Sound chinook effective January 8, 2001.  50 C.F.R. § 223.203; 65 Fed. Reg. 42,422 (July 10, 2000).  Under this 4(d) rule, take caused by WDFW's hatchery activities is unlawful unless and until NMFS approves an exemption to the rule's take prohibition under one of the "limits" described therein.  Id.; Washington Environmental Council v. NMFS, 32 ELR 20,570, 2002 WL 511479 (W.D. Wash. 2002) at *5.  A defendant can only rely on the affirmative defense provided by a "limit" if he "can demonstrate that the limit is applicable and was in force, and that the [defendant] fully complied with the limit at the time of the alleged violation."  50 C.F.R. § 223.203(c); 65 Fed. Reg. 42,433.

            Under Section 9(a)(1)(G), it is unlawful to take threatened salmon in violation of this 4(d) regulation without NMFS' authorization in the form of an incidental take permit or statement.  16 U.S.C. §§ 1538(a)(1)(G), 1536 (incidental take statement for federal actions), and 1539(a) (incidental take permit for nonfederal actions).  Such authorizations provide statutorily sanctioned alternatives to the options for authorization under the "limits" described in the 4(d) rule.  50 C.F.R. § 223.203(b). 

While this case seeks to enjoin unlawful take, WT's ultimate goal is for WDFW to develop and implement hatchery management plans for its coho and steelhead hatchery operations that are fully consistent with the no-jeopardy and mitigation criteria described in the 4(d) rule so as to maximize protection of threatened Puget Sound chinook.  50 C.F.R. § 223.203(c)(5) and (6).

            2.         Standards for preliminary injunctive relief under the ESA

            Under the ESA citizen suit provision, under which this case is brought, the Court is authorized "to enjoin any person … who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof."  16 U.S.C. § 1540(g).  An injunction is the appropriate remedy for ESA violations.  Thomas v. Peterson, 753 F.2d 754, 765 (9^th Cir. 1985); accord Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1056-57 (9^th Cir. 1994), cert. denied, 514 U.S. 1082 (1995). 

            As the Supreme Court explained in Tennessee Valley Auth. v. Hill, 437 U.S. 153, 194 (1978), the ESA requires the courts "to strike the balance of equities on the side of" species facing extinction:

Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities, thereby adopting a policy which it described as "institutionalized caution."

 

"The ESA's mandate is to 'halt and reverse the trend toward species extinction whatever the cost.'"  Greater Ecosystem Alliance v. Lydic, W. Dist. Wash. No. C94-1536C (Mar. 5, 1996) at 8, quoting Tennessee Valley Auth., 437 U.S. at 184.

The ESA modifies the traditional injunction standard, removing the Court's equitable authority to balance the respective harms and interests.  Tennessee Valley Auth., 437 U.S. at 193-94 (enjoining construction of partially built Tellico dam without regard to "extraordinary" financial implications).  In Sierra Club v. Marsh, 816 F.2d 1376, 1382-84, 1386 & n.13 (9^th Cir. 1987), the Ninth Circuit held that the district court erred by applying the traditional balancing test for a preliminary injunction under the ESA, stating that Congress has dictated that any risk "must be borne by the project, not by the endangered species."  See also, Biodiversity Legal Found. v. Badgley, 284 F.3d 1046, 1057 (9^th Cir. 2002) ("Congress in passing the ESA removed the traditional discretion of courts in balancing the equities before awarding injunctive relief").

            The Ninth Circuit has articulated a sliding scale for granting preliminary injunctions.  A party may demonstrate: "(1) a likelihood of success on the merits and the possibility of irreparable injury; or (2) sufficiently serious questions going to the merits to make them fair ground for litigation, and the balance of hardships tips sharply in favor of the party seeking relief."  Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1073 (9^th Cir. 1996).  The Ninth Circuit has further clarified the specific standards governing injunctive relief in a Section 9 ESA take case.  A plaintiff "must prove that there is a reasonable likelihood of future violations of the ESA ….  While we do not require that future harm be shown with certainty before an injunction may issue, we do require that a future injury be sufficiently likely."  National Wildlife Fed. v. Burlington N. RR, 23 F.3d 1508, 1511-12 (9^th Cir. 1994); see also, Idaho Watersheds Project v. Jones, U.S. Dist. Ct. for Dist. of Idaho, No. 00-0730-E-BLW (Nov. 14, 2002) at 16-17.  A prospective take may be enjoined upon a showing that the act is "reasonably certain to injure," "reasonably certain to cause harm," or that there is "a reasonably certain threat of imminent harm."  See Defenders of Wildlife v. Bernal, 204 F.3d 920, 925 (9^th Cir. 2000); Marbled Murrelet, 83 F.3d at 1066; Sierra Club v. Babbitt, 65 F.3d 1502, 1512 (9^th Cir. 1995); Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 783 (9^th Cir. 1995).

B.        WT is likely to prevail on the claim that WDFW is liable for take caused by hatchery coho and steelhead releases.

 

            WDFW’s releases of coho and steelhead at issue will take threatened juvenile chinook by interfering with their ability survive to adulthood by introducing hatchery fish into the environment where the hatchery fish are likely to harass or harm the threatened chinook by hunting them, attacking them, killing them, and eating them.  Wright Dec. ¶¶ 9 – 18.  The take resulting from WDFW’s planned coho and steelhead releases would cause significant river basin specific impacts on threatened Puget Sound chinook in many areas.  Wright Dec. ¶ 19 – 32.

            As defined by statute, to "take" means to harass, to harm, to wound, to kill, to trap, to capture, to collect, or to attempt to engage in such conduct.  16 U.S.C. § 1532(19).  NMFS' regulatory definition of "harm" is "an act which actually kills or injures fish or wildlife.  Such an act may include significant habitat modification or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering."  50 C.F.R. § 222.102; see also, Sweet Home, 515 U.S. at 688-89 (“harm” includes indirect as well as direct injuries), at 701 (“… activities not intended to harm an endangered species, such as habitat modification, may constitute unlawful takings …”), and at 710 (O'Conner concurring “… breeding, feeding, and sheltering are what animals do.  If significant habitat modification, by interfering with these essential behaviors, actually kills or injures an animal protected by the Act, it causes ‘harm’ ….”).

NMFS has explained that the release of fish from hatcheries may constitute "harm" by modifying habitat.  64 Fed. Reg. 60,728 (Nov. 8, 1999).  In addition, NMFS cites "[r]eleasing non-indigenous or artificially propagated species into a listed species' habitat or where they may access the habitat of listed species" as an example of habitat-modifying activity that may constitute harm.  Id. at 60,730; see also, 65 Fed. Reg. at 42,472 and 63 Fed. Reg. at 11,508 (take guidance for 4(d) rule citing "[i]ntroduction of non-native species likely to prey on chinook salmon in any proposed ESU or displace them from their habitat"). 

            In this case, the take of threatened Puget Sound chinook can be viewed in the context of harm to the threatened ESU population as a whole, harm to a particular stock within the threatened ESU, or harm to individual threatened fish.  Sweet Home, 515 U.S. at 708-11 (O’Conner concurring).  WT will show that the challenged coho and steelhead releases pose a "reasonably certain threat of imminent harm" to threatened chinook in these contexts, so it will be entitled to a permanent injunction.  Idaho Watersheds Project, No. 00-0730-E-BLW at 16, citing Bernal, 204 F.3d at 925, and Marbled Murrelet, 83 F.3d at 1064. 

            Unless and until NMFS grants WDFW coverage under a "Limit" to the 4(d) rule's take prohibition, the take caused by WDFW's hatchery operations is illegal.  50 C.F.R. § 223.203(a); Washington Environmental Council, 2002 WL 511479 at *5.  Currently, WDFW cannot use the affirmative defense provided by the 4(d) rule.  50 C.F.R. § 223.203(c).  There are no applicable ESA take permits or authorizations for the hatchery operations at issue in this case.

The take prohibition in the 4(d) rule is enforceable under the ESA citizen suit provision.  16 U.S.C. §§ 1531(a)(1)(G) and 1540(g)(1)(A).  WT has complied with the citizen suit notice requirements and no federal agency has commenced any relevant enforcement action.  16 U.S.C. § 1540(g)(2)(A); Complaint For Declaratory And Injunctive Relief, Exh. A.

C.        A preliminary injunction should issue.

            Unless enjoined, WDFW will release millions of hatchery coho and steelhead in the thirty hatchery programs identified in Appendices A and C, which actions are reasonably certain to cause harm to threatened chinook.  Under the Ninth Circuit case law pertaining to the issuance of preliminary injunctions to prevent take of listed species, an injunction should issue.  See Defenders of Wildlife v. Bernal, 204 F.3d at 925; Marbled Murrelet, 83 F.3d at 1066; Sierra Club v. Babbitt, 65 F.3d at 1512; Forest Conservation Council, 50 F.3d at 783.

            In Tennessee Valley, 437 U.S. at 174, 187-88, the Supreme Court concluded that Congress made the judgment in the ESA that harm to endangered species is incalculable and that the "language, history, and structure" of the ESA "indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities."  Even though an injunction preventing the completion of the Tellico dam would have economic costs, the Supreme Court decided that "[t]he purpose and language of the statute limited the remedies available to the District Court; only an injunction could vindicate the objectives of the Act."  Weinberger v. Romero-Barcelo, 456 U.S. 305, 313-14 (1982).  The ESA struck the balance in favor of species protection, and a court "may not use equity's scales to strike a different balance."  Sierra Club v. Marsh, 816 F.2d at 1383.

            Not only has Congress struck the balance and mandated issuance of an injunction to prevent harm to listed species, but the harm at issue is, indeed, irreparable.  When WDFW alters the freshwater environments crucial for the survival of juvenile threatened chinook by loading them with millions of hatchery fish, the loss of unknown numbers of threatened chinook results.  Once released, the juvenile hatchery fish cannot be removed from these systems and, once dead, the juvenile threatened fish cannot be recovered. 

            The injunction WT seeks is tailored to prevent irreparable harm to threatened chinook.  WT is asking the Court to enjoin WDFW from releasing juvenile coho and steelhead only where the hatchery releases are likely to harm indigenous threatened chinook populations. 

            The requested injunction would both protect the status quo and serve the purposes of the ESA to prevent harm to listed species.  The injunction would prevent WDFW from releasing hatchery coho and steelhead where they would be most likely to harm threatened chinook.

            The injunction would remain in place during the pendency of this case.  Alternatively, WDFW may obtain from NMFS coverage under a "limit" to the 4(d) rule take prohibition or an incidental take permit and approval of a habitat conservation plan that avoids jeopardy and minimizes take of threatened chinook in accordance with Section 10 of the ESA. 

V.        CONCLUSION

For the foregoing reasons, the Court should grant WT’s motion and enjoin the coho and steelhead hatchery releases at issue.

RESPECTFULLY SUBMITTED this __ day of March, 2003.

Smith & Lowney, p.l.l.c.

 

 

 

 

By: __________________________

      Richard A. Smith, WSBA #21788

Attorneys for Plaintiffs