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Environmental Law

: ESA Blawg

Ninth Circuit refines its standards for injunctions in MMPA case, implications for ESA.

By Keith Rizzardi

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Humane Society v. Gutierrez, 2008 U.S. App. LEXIS 8733 (April 23, 2008).

What the District Court giveth, the Ninth Circuit can taketh away (and vice versa). While this case was based on the Marine Mammal Protection Act, the call for an emergency stay pending appeal is increasingly common in Endangered Species Act litigation, where environmentalists can argue, sometimes persuasively, that the status of a listed species is, by definition, dire -- thus triggering the need for an injunction. And in this case, the Ninth Circuit moved another step closer to an approach that fundamentally shifts the burden, favoring the species, and essentially requiring the government to show that the issuance of an injunction will harm the government. A critical excerpt of the Court's ruling follows...

Photo of Steller's sea lion from NOAA

"In deciding whether to issue a stay pending appeal, the court considers “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” See Golden Gate Restaurant Ass’n v. City and County of San Francisco, 512 F.3d 1112, 1115 (9th Cir. 2008) (citations omitted). This court recognizes that the issues of likelihood of success and irreparable injury represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases. Id.

"Three facts inform the court’s analysis of this motion. First, the lethal taking of the California sea lions is, by definition, irreparable. This logic also applies to the salmon consumed by the sea lions. Second, any stay of the NMFS Approval by this court at this time will affect only the 2008 salmon run at the Bonneville Dam, as we expect this case will be resolved on the merits before next year’s salmon run. Third, all parties agree that the 2008 salmon run is estimated to be large, indeed much larger than in the past several years.

"Accordingly, we conclude that, with respect to the impact on the 2008 salmon run, the balance of harms tips in favor of the appellants. The estimated 2008 salmon run is anticipated to be 269,000 fish. The NMFS estimates that, if the plans to remove the sea lions this year do not go forward, the sea lions may consume between 212 to 2,094 Endangered Species Act-listed spring Chinook salmon, which the NMFS estimates is 0.3 to 4.4 percent of these protected fish. Appellees thus have not shown that a stay pending appeal of the NMFS Approval will result in an irreparable harm to appellees.

"The district court found the question of likelihood of success on the merits tips slightly in favor of appellants. Accordingly, we hold that appellants have met
their burden for a stay pending appeal. Therefore, appellants’ motion for an emergency injunction pending appeal is granted in part."

Full post as published by ESA Blawg on April 25, 2008 (boomark / email).