                                                          FILED
                      NOT FOR PUBLICATION
                                                          APR 04 2018
               UNITED STATES COURT OF APPEALS          MOLLY C. DWYER, CLERK
                                                        U.S. COURT OF APPEALS


                      FOR THE NINTH CIRCUIT


DEFENDERS OF WILDLIFE and           No.   17-35712
NATURAL RESOURCES DEFENSE
COUNCIL,                            D.C. No. 4:15-cv-00014-BMM

         Plaintiffs-Appellees,
                                    MEMORANDUM*
v.

UNITED STATES ARMY CORPS OF
ENGINEERS; et al.,

         Defendants-Appellants,

and

LOWER YELLOWSTONE IRRIGATION
PROJECT BOARD OF CONTROL; et al.,

         Intervenor-Defendants.



DEFENDERS OF WILDLIFE and           No.   17-35713
NATURAL RESOURCES DEFENSE
COUNCIL,                            D.C. No. 4:15-cv-00014-BMM

         Plaintiffs-Appellees,

v.
UNITED STATES ARMY CORPS OF
ENGINEERS; et al.,

              Defendants,

 and

LOWER YELLOWSTONE IRRIGATION
PROJECT BOARD OF CONTROL; et al.,

              Intervenor-Defendants-
              Appellants.


                    Appeal from the United States District Court
                            for the District of Montana
                     Brian M. Morris, District Judge, Presiding

                       Argued and Submitted March 5, 2018
                                Portland, Oregon

Before: N.R. SMITH and HURWITZ, Circuit Judges, and CURIEL,** District
Judge.

       The U.S. Army Corps of Engineers appeals the district court’s grant of the

preliminary injunction of its project on the Lower Yellowstone River. We vacate

the injunction.




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **     The Honorable Gonzalo P. Curiel, United States District Judge for the
Southern District of California, sitting by designation.
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      We review the district court’s decision to issue a preliminary injunction for

an abuse of discretion. Enyart v. Nat’l Conference of Bar Exam’rs, Inc., 630 F.3d

1153, 1159 (9th Cir. 2011). “[T]he first step of our abuse of discretion test is to

determine de novo whether the [district] court identified the correct legal rule to

apply to the relief requested.” Id. (quoting United States v. Hinkson, 585 F.3d

1247, 1261-62 (9th Cir. 2009) (en banc)). Also, “[a] plaintiff seeking a preliminary

injunction must establish that he is likely to succeed on the merits, that he is likely

to suffer irreparable harm in the absence of preliminary relief, that the balance of

equities tips in his favor, and that an injunction is in the public interest.” Winter v.

Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

      1. Irreparable Harm, Balance of Equities, and Public Interest. The law is

clear that only harm that will occur “in the absence of preliminary relief” may be

considered in determining irreparable harm. Id. A court may not consider harm that

will occur irrespective of an injunction, i.e. harm that the award of an injunction

will not alleviate or prevent. Because the Defenders of Wildlife (DOW) did not

seek to enjoin the operation and maintenance of the existing weir, the district court

erred when it considered the harm caused by the “continued operation of the

existing weir” in its assessment of the irreparable harm attributable to the proposed

project.


                                            3
      The district court again erred when it flipped the burden of proof and

required the Corps to prove that the proposed project would allow successful pallid

sturgeon passage around the weir. Under the irreparable harm analysis, the Corps

had no burden to prove that the proposed project would improve the plight of the

pallid sturgeon over the status quo. Rather, DOW had the burden of proving some

irreparable harm that would result specifically from the construction of the

proposed project.

      Lastly, absent evidence of irreparable harm caused by the project, the district

court had no basis to conclude that the balance of equities or public interest favored

an injunction.

      2. Likelihood of Success on the Merits. The district court also erred in

concluding that DOW had established a likelihood of success on the merits of its

claims under the Endangered Species Act (ESA), the National Environment

Protection Act (NEPA), and the Clean Water Act (CWA). On each of the claims at

issue, the district court erred in supplanting the deferential standard of review

under the Administrative Procedure Act (APA). At its core, this standard simply

requires an agency to “articulate a rational connection between the facts found and

the conclusions made.” Wild Fish Conservancy v. Salazar, 628 F.3d 513, 529 (9th

Cir. 2010) (quoting Pac. Coast Fed’n of Fishermen’s Ass’ns v. U.S. Bureau of


                                           4
Reclamation, 426 F.3d 1082, 1091 (9th Cir. 2005)). Under this deferential

standard, we find no basis to conclude that DOW was likely to succeed on the

merits of its claims.

      A. The ESA. The ESA requires a federal agency to ensure that its proposed

project “is not likely to jeopardize the continued existence of any endangered

species.” 16 U.S.C. § 1536(a)(2). To jeopardize is to “reduce appreciably the

likelihood of both the survival and recovery of a listed species in the wild by

reducing the reproduction, numbers, or distribution of that species.” 50 C.F.R.

§ 402.02. The agency articulated a reasoned basis for the no-jeopardy finding in its

Biological Opinion. Indeed, the Incidental Take Statement and analysis of recovery

issues support the agency’s conclusion. First, the agency’s approved incidental

take represents a substantial reduction in the impairment of breeding caused in the

project’s absence and is thus consistent with the agency’s no-jeopardy finding.

Second, although not identifying a quantifiable recovery goal, the Biological

Opinion adequately addressed the project’s positive impact on species recovery.

      Although analysis of the Incidental Take Statement and identification of a

recovery goal may sometimes be needed to explain the reasoned basis for an

agency’s no-jeopardy finding, see, e.g., Southwest Center for Biological Diversity

v. Bartel, 470 F. Supp. 2d 1118, 1146-48 (S.D. Cal. 2006) (finding the agency’s no


                                          5
jeopardy conclusion unreasonable where the incidental take authorized “an

additional 12% of habitat loss” without explanation (emphasis added)); National

Wildlife Federation v. National Marine Fisheries Service, 524 F.3d 917, 936 (9th

Cir. 2008) (identifying “some attention to recovery issues” as useful to support a

no jeopardy conclusion), such analyses were not required here. The district court

committed legal error when it treated the absence of a specific Incidental Take

Statement analysis and the failure to identify a quantifiable recovery goal as

technical deficiencies that precluded a no-jeopardy finding in the Biological

Opinion.

      B. NEPA. Under NEPA, an agency must “rigorously explore and objectively

evaluate all reasonable alternatives” to a proposed project. 40 C.F.R. § 1502.14(a).

Center for Biological Diversity v. United States Department of the Interior

(“CBD”) makes clear that an agency violates NEPA when it arbitrarily reaches a

conclusion without analyzing a critical distinction between two proposed

alternatives. 623 F.3d 633, 636, 646 (9th Cir. 2010) (“[T]he BLM assumed without

analysis that the [Mining Plan of Operations] process would impose no constraints

on, and would have no effect on, the manner in which Asarco would conduct new

mining operations on the exchanged land.” (emphasis added)).




                                          6
         Here, the district court acknowledged the agency’s analysis of the differing

environmental consequences of the various alternatives, including the pumping

alternative DOW proposes. Under the standard of review identified in CBD, the

district court’s analysis does not support its arbitrary and capricious finding.

         C. The CWA. The CWA prohibits projects that discharge dredged or fill

material “if there is a practicable alternative to the proposed discharge which

would have less adverse impact on the aquatic ecosystem.” 40 C.F.R. § 230.10(a).

The district court concluded that DOW’s CWA claim was likely to succeed on the

merits because the Corps failed to make a finding that the multiple pump

alternative was impracticable. But, the Corps expressly found that there was no

practicable alternative to the proposed project that would have less adverse impact

on the sturgeon populations, and that finding was supported by ample evidence in

the record. The district court thus abused its discretion in failing to take this finding

into account in analyzing the likelihood of success on the merits of the CWA

claim.

         We therefore VACATE the preliminary injunction.




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