The U. S. Court of Appeals for the Ninth Circuit has reversed the federal district court in Great Falls in the case by Defenders of Wildlife against the Lower Yellowstone Irrigation Project. The district court had issued a preliminary injunction that stopped construction of a new irrigation weir and fish bypass. The reversal vacates that preliminary injunction.
This is outstanding news for our communities. It is cause to celebrate. We still face, however, the upcoming hearing on summary judgment in Great Falls on April 19.
The issues on a preliminary injunction and the issues on summary judgment are not the same. Our victory in the 9th Circuit does not guarantee victory on summary judgment. But the victory will have influence, and in this instance the influence might be strong.
The influence might be strong because of how strong the opinion of the 9th Circuit is in this case.
First, the 9th Circuit acted through a three-judge panel. Theirs is not a split decision. The three judges decided to reverse the district court unanimously.
Second, this is not a nip-and-tuck reversal. It is a fairly lopsided reversal. There are four issues on appellate review of a preliminary injunction, and the 9th Circuit held the district court was in error on all four of the issues. Error on one of them would have been enough, but the 9th Circuit went through all four of them.
Third, the degree of error on some of the issues must be fairly extreme to warrant reversal. The appellate court must find that the district court abused its discretion and acted arbitrarily and capriciously. Legally speaking, that is some pretty tough talk, and the 9th Circuit used that language to describe what the Obama appointee, Judge Brian Morris, had done when he issued the preliminary injunction.
The four issues are:
A. Whether the party that sought the preliminary injunction established that it was likely to succeed on the merits when the time comes for rendering a final judgment.
B. Whether the party that sought the preliminary injunction established that it was likely to suffer irreparable harm in the absence of preliminary relief. In other words, waiting for the final judgment would be bad because, by that time, more harm would happen that a final judgment could not fix.
C. Whether the party that sought the preliminary injunction established that “the equities tip in his favor.”
D. Whether the preliminary injunction is in the public interest.
Judge Morris held that Defenders of Wildlife had established all four of those matters, but the 9th Circuit did not agree on any of them.
The 9th Circuit said that because Defenders of Wildlife, insofar as the preliminary injunction is concerned, did not seek to enjoin the continued operations of the existing weir, the district court erred when it considered the harm cause by continued operation of the exiting weir. That worked in our favor on appeal of the preliminary injunction, but we must remember that things will be different on summary judgment. On summary judgment, Defenders of Wildlife have indeed challenged the ongoing operations of the existing weir. That will be before the court at the April 19 hearing on summary judgment.
The 9th Circuit said the district court flipped the burden of proof backwards. The district court required the U. S. Army Corps of Engineers to prove that the proposed fish bypass would allow successful pallid sturgeon passage around the weir. But on the issue of irreparable harm for an injunction, the Corps did not have that legal burden. Instead, the burden was on Defenders of Wildlife to prove some irreparable harm from the new project. This, again, will be different on summary judgment because irreparable harm is an issue for an injunction, but not for summary judgment.
So, the result on those two issues is encouraging, but far from a guarantee of success on summary judgment.
A better indicator is what the 9th Circuit said about likelihood of success on the merits when the time comes for rendering final judgment. The claims are under the Endangered Species Act, the National Environmental Policy Act, and the Clean Water Act. The 9th Circuit said: “On each of the claims at issue, the district court erred in supplanting the deferential standard of review under the Administrative Procedure Act.” This just means that when an agency has a field of expertise, courts should show deference to their decisions within that field of expertise. The 9th Circuit did not see Judge Morris showing the proper, legal deference to the expertise of those who made the biological assessment that the fish bypass would make things better for the pallid sturgeon.
The 9th Circuit went into this part of its reasoning in further detail. It looked specifically at each of the claims and each of the congressional acts. The 9th Circuit’s elaboration of the district court’s errors on these matters provides the strongest influence of the appellate court on the upcoming decision of the district court on summary judgment. The language is especially tough relating to the district court’s error under the National Environmental Policy Act. As to this Act, the 9th Circuit said Judge Morris made an “arbitrary and capricious finding.” Go to any standard dictionary and look up the words arbitrary and capricious. How much influence all of this will have remains to be seen, but at least all of this influence is favorable to us.
If anything, this is even more reason for as many of us from our communities as possible to attend the hearing in Great Falls on April 19. Just as the injunction itself was preliminary, our victory on it is only preliminary, but now the influence of our attendance receives a boost from the influence of the 9th Circuit.
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