                                                            FILED
                         FOR PUBLICATION
                                                             APR 2 2018
               UNITED STATES COURT OF APPEALS            MOLLY C. DWYER, CLERK
                                                          U.S. COURT OF APPEALS


                       FOR THE NINTH CIRCUIT


NATIONAL WILDLIFE FEDERATION;        No.   17-35462
IDAHO WILDLIFE FEDERATION;
WASHINGTON WILDLIFE                  D.C. No. 3:01-cv-00640-SI
FEDERATION; SIERRA CLUB;
PACIFIC COAST FEDERATION OF
FISHERMEN’S ASSOCIATIONS, INC.;      OPINION
INSTITUTE FOR FISHERIES
RESOURCES; IDAHO RIVERS
UNITED; IDAHO STEELHEAD AND
SALMON UNITED; NORTHWEST
SPORT FISHING INDUSTRY
ASSOCIATION; SALMON FOR ALL;
COLUMBIA RIVERKEEPER; NW
ENERGY COALITION; FEDERATION
OF FLY FISHERS; AMERICAN
RIVERS, INC.,

         Plaintiffs-Appellees,

STATE OF OREGON,

         Intervenor-Plaintiff-
         Appellee,

v.

NATIONAL MARINE FISHERIES
SERVICE; U.S. ARMY CORP OF
ENGINEERS; UNITED STATES
BUREAU OF RECLAMATION,

         Defendants-Appellants,
and

STATE OF WASHINGTON; STATE OF
MONTANA; STATE OF IDAHO;
KOOTENAI TRIBE OF IDAHO;
CONFEDERATED SALISH AND
KOOTENAI TRIBES; INLAND PORTS
AND NAVIGATION GROUP;
NORTHWEST RIVER PARTNERS;
NORTHWEST IRRIGATION
UTILITIES; PUBLIC POWER
COUNCIL; COLUMBIA-SNAKE RIVER
IRRIGATORS ASSOCIATION,

         Intervenor-Defendants.



NATIONAL WILDLIFE FEDERATION;         No.   17-35463
IDAHO WILDLIFE FEDERATION;
WASHINGTON WILDLIFE                   D.C. No. 3:01-cv-00640-SI
FEDERATION; SIERRA CLUB;
PACIFIC COAST FEDERATION OF
FISHERMEN’S ASSOCIATIONS, INC.;
INSTITUTE FOR FISHERIES
RESOURCES; IDAHO RIVERS
UNITED; IDAHO STEELHEAD AND
SALMON UNITED; NORTHWEST
SPORT FISHING INDUSTRY
ASSOCIATION; SALMON FOR ALL;
COLUMBIA RIVERKEEPER; NW
ENERGY COALITION; FEDERATION
OF FLY FISHERS; AMERICAN
RIVERS, INC.,

         Plaintiffs-Appellees,



                                  2
STATE OF OREGON,

         Intervenor-Plaintiff-
         Appellee,

v.

NATIONAL MARINE FISHERIES
SERVICE; U.S. ARMY CORP OF
ENGINEERS; UNITED STATES
BUREAU OF RECLAMATION,

         Defendants,

STATE OF WASHINGTON; STATE OF
MONTANA; STATE OF IDAHO;
KOOTENAI TRIBE OF IDAHO;
CONFEDERATED SALISH AND
KOOTENAI TRIBES; INLAND PORTS
AND NAVIGATION GROUP;
NORTHWEST IRRIGATION
UTILITIES; PUBLIC POWER
COUNCIL; COLUMBIA-SNAKE RIVER
IRRIGATORS ASSOCIATION,

         Intervenor-Defendants,

and

NORTHWEST RIVER PARTNERS,

         Intervenor-Defendant-
         Appellant.




                                  3
NATIONAL WILDLIFE FEDERATION;        No.   17-35465
IDAHO WILDLIFE FEDERATION;
WASHINGTON WILDLIFE                  D.C. No. 3:01-cv-00640-SI
FEDERATION; SIERRA CLUB;
PACIFIC COAST FEDERATION OF
FISHERMEN’S ASSOCIATIONS, INC.;
INSTITUTE FOR FISHERIES
RESOURCES; IDAHO RIVERS
UNITED; IDAHO STEELHEAD AND
SALMON UNITED; NORTHWEST
SPORT FISHING INDUSTRY
ASSOCIATION; SALMON FOR ALL;
COLUMBIA RIVERKEEPER; NW
ENERGY COALITION; FEDERATION
OF FLY FISHERS; AMERICAN
RIVERS, INC.,

         Plaintiffs-Appellees,

STATE OF OREGON,

         Intervenor-Plaintiff-
         Appellee,

v.

NATIONAL MARINE FISHERIES
SERVICE; U.S. ARMY CORP OF
ENGINEERS; UNITED STATES
BUREAU OF RECLAMATION,

         Defendants,

STATE OF WASHINGTON; STATE OF
MONTANA; KOOTENAI TRIBE OF
IDAHO; CONFEDERATED SALISH
AND KOOTENAI TRIBES; INLAND

                                 4
PORTS AND NAVIGATION GROUP;
NORTHWEST RIVER PARTNERS;
NORTHWEST IRRIGATION
UTILITIES; PUBLIC POWER
COUNCIL; COLUMBIA-SNAKE RIVER
IRRIGATORS ASSOCIATION,

         Intervenor-Defendants,

and

STATE OF IDAHO,

         Intervenor-Defendant-
         Appellant.



NATIONAL WILDLIFE FEDERATION;         No.   17-35466
IDAHO WILDLIFE FEDERATION;
WASHINGTON WILDLIFE                   D.C. No. 3:01-cv-00640-SI
FEDERATION; SIERRA CLUB;
PACIFIC COAST FEDERATION OF
FISHERMEN’S ASSOCIATIONS, INC.;
INSTITUTE FOR FISHERIES
RESOURCES; IDAHO RIVERS
UNITED; IDAHO STEELHEAD AND
SALMON UNITED; NORTHWEST
SPORT FISHING INDUSTRY
ASSOCIATION; SALMON FOR ALL;
COLUMBIA RIVERKEEPER; NW
ENERGY COALITION; FEDERATION
OF FLY FISHERS; AMERICAN
RIVERS, INC.,

         Plaintiffs-Appellees,



                                  5
STATE OF OREGON,

         Intervenor-Plaintiff-
         Appellee,

v.

NATIONAL MARINE FISHERIES
SERVICE; U.S. ARMY CORP OF
ENGINEERS; UNITED STATES
BUREAU OF RECLAMATION,

         Defendants,

STATE OF WASHINGTON; STATE OF
MONTANA; STATE OF IDAHO;
KOOTENAI TRIBE OF IDAHO;
CONFEDERATED SALISH AND
KOOTENAI TRIBES; NORTHWEST
RIVER PARTNERS; NORTHWEST
IRRIGATION UTILITIES; PUBLIC
POWER COUNCIL; COLUMBIA-
SNAKE RIVER IRRIGATORS
ASSOCIATION,

         Intervenor-Defendants,

and

INLAND PORTS AND NAVIGATION
GROUP,

         Intervenor-Defendant-
         Appellant.




                                  6
NATIONAL WILDLIFE FEDERATION;        No.   17-35467
IDAHO WILDLIFE FEDERATION;
WASHINGTON WILDLIFE                  D.C. No. 3:01-cv-00640-SI
FEDERATION; SIERRA CLUB;
PACIFIC COAST FEDERATION OF
FISHERMEN’S ASSOCIATIONS, INC.;
INSTITUTE FOR FISHERIES
RESOURCES; IDAHO RIVERS
UNITED; IDAHO STEELHEAD AND
SALMON UNITED; NORTHWEST
SPORT FISHING INDUSTRY
ASSOCIATION; SALMON FOR ALL;
COLUMBIA RIVERKEEPER; NW
ENERGY COALITION; FEDERATION
OF FLY FISHERS; AMERICAN
RIVERS, INC.,

         Plaintiffs-Appellees,

STATE OF OREGON,

         Intervenor-Plaintiff-
         Appellee,

v.

NATIONAL MARINE FISHERIES
SERVICE; U.S. ARMY CORP OF
ENGINEERS; UNITED STATES
BUREAU OF RECLAMATION,

         Defendants,

STATE OF WASHINGTON; STATE OF
IDAHO; KOOTENAI TRIBE OF IDAHO;
CONFEDERATED SALISH AND
KOOTENAI TRIBES; INLAND PORTS

                                 7
AND NAVIGATION GROUP;
NORTHWEST RIVER PARTNERS;
NORTHWEST IRRIGATION
UTILITIES; PUBLIC POWER
COUNCIL; COLUMBIA-SNAKE RIVER
IRRIGATORS ASSOCIATION,

         Intervenor-Defendants,

and

STATE OF MONTANA,

         Intervenor-Defendant-
         Appellant.



NATIONAL WILDLIFE FEDERATION;         No.   17-35502
IDAHO WILDLIFE FEDERATION;
WASHINGTON WILDLIFE                   D.C. No. 3:01-cv-00640-SI
FEDERATION; SIERRA CLUB;
PACIFIC COAST FEDERATION OF
FISHERMEN’S ASSOCIATIONS, INC.;
INSTITUTE FOR FISHERIES
RESOURCES; IDAHO RIVERS
UNITED; IDAHO STEELHEAD AND
SALMON UNITED; NORTHWEST
SPORT FISHING INDUSTRY
ASSOCIATION; SALMON FOR ALL;
COLUMBIA RIVERKEEPER; NW
ENERGY COALITION; FEDERATION
OF FLY FISHERS; AMERICAN
RIVERS, INC.,

         Plaintiffs-Appellees,



                                  8
STATE OF OREGON,

         Intervenor-Plaintiff-
         Appellee,

v.

NATIONAL MARINE FISHERIES
SERVICE; U.S. ARMY CORP OF
ENGINEERS; UNITED STATES
BUREAU OF RECLAMATION,

         Defendants,

STATE OF WASHINGTON; STATE OF
MONTANA; STATE OF IDAHO;
INLAND PORTS AND NAVIGATION
GROUP; NORTHWEST RIVER
PARTNERS; NORTHWEST
IRRIGATION UTILITIES; PUBLIC
POWER COUNCIL; COLUMBIA-
SNAKE RIVER IRRIGATORS
ASSOCIATION,

         Intervenor-Defendants,

and

KOOTENAI TRIBE OF IDAHO;
CONFEDERATED SALISH AND
KOOTENAI TRIBES,

         Intervenor-Defendants-
         Appellants.




                                  9
NATIONAL WILDLIFE FEDERATION;          No.   18-35111
IDAHO WILDLIFE FEDERATION;
WASHINGTON WILDLIFE                    D.C. No. 3:01-cv-00640-SI
FEDERATION; SIERRA CLUB;
PACIFIC COAST FEDERATION OF
FISHERMEN’S ASSOCIATIONS, INC.;
INSTITUTE FOR FISHERIES
RESOURCES; IDAHO RIVERS
UNITED; IDAHO STEELHEAD AND
SALMON UNITED; NORTHWEST
SPORT FISHING INDUSTRY
ASSOCIATION; SALMON FOR ALL;
COLUMBIA RIVERKEEPER; NW
ENERGY COALITION; FEDERATION
OF FLY FISHERS; AMERICAN
RIVERS, INC.,

         Plaintiffs-Appellees,

STATE OF OREGON,

         Intervenor-Plaintiff-
         Appellee,

v.

NATIONAL MARINE FISHERIES
SERVICE; U.S. ARMY CORP OF
ENGINEERS; UNITED STATES
BUREAU OF RECLAMATION,

         Defendants-Appellants,

and

STATE OF WASHINGTON; STATE OF
MONTANA; STATE OF IDAHO;

                                  10
INLAND PORTS AND NAVIGATION
GROUP; NORTHWEST RIVER
PARTNERS; NORTHWEST
IRRIGATION UTILITIES; PUBLIC
POWER COUNCIL; COLUMBIA-
SNAKE RIVER IRRIGATORS
ASSOCIATION; KOOTENAI TRIBE OF
IDAHO; CONFEDERATED SALISH
AND KOOTENAI TRIBES,

         Intervenor-Defendants.



NATIONAL WILDLIFE FEDERATION;          No.   18-35152
IDAHO WILDLIFE FEDERATION;
WASHINGTON WILDLIFE                    D.C. No. 3:01-cv-00640-SI
FEDERATION; SIERRA CLUB;
PACIFIC COAST FEDERATION OF
FISHERMEN’S ASSOCIATIONS, INC.;
INSTITUTE FOR FISHERIES
RESOURCES; IDAHO RIVERS
UNITED; IDAHO STEELHEAD AND
SALMON UNITED; NORTHWEST
SPORT FISHING INDUSTRY
ASSOCIATION; SALMON FOR ALL;
COLUMBIA RIVERKEEPER; NW
ENERGY COALITION; FEDERATION
OF FLY FISHERS; AMERICAN
RIVERS, INC.,

         Plaintiffs-Appellees,

STATE OF OREGON,

         Intervenor-Plaintiff-
         Appellee,


                                  11
v.

NATIONAL MARINE FISHERIES
SERVICE; U.S. ARMY CORP OF
ENGINEERS; UNITED STATES
BUREAU OF RECLAMATION,

         Defendants,

STATE OF WASHINGTON; STATE OF
MONTANA; STATE OF IDAHO;
INLAND PORTS AND NAVIGATION
GROUP; NORTHWEST IRRIGATION
UTILITIES; PUBLIC POWER
COUNCIL; COLUMBIA-SNAKE RIVER
IRRIGATORS ASSOCIATION;
KOOTENAI TRIBE OF IDAHO;
CONFEDERATED SALISH AND
KOOTENAI TRIBES,

         Intervenor-Defendants,

and

NORTHWEST RIVER PARTNERS,

         Intervenor-Defendant-
         Appellant.


              Appeals from the United States District Court
                        for the District of Oregon
              Michael H. Simon, District Judge, Presiding

                 Argued and Submitted March 20, 2018
                      San Francisco, California


                                   12
BEFORE: THOMAS, Chief Judge, and TASHIMA and PAEZ, Circuit Judges.

                     Opinion by Chief Judge Sidney R. Thomas

THOMAS, Chief Judge:

      These consolidated appeals are the latest round of a long-running dispute

over salmon and steelhead species listed under the Endangered Species Act

(“ESA”), 16 U.S.C. §§ 1531-1544. Three federal agencies (collectively, “federal

defendants”), joined by intervenor-defendants, challenge injunctions issued by the

district court to protect the listed species. At the request of the National Wildlife

Federation and the State of Oregon (collectively, “plaintiffs”), the district court

ordered the agencies to conduct certain spill operations and fish monitoring

operations at dams and related facilities in the Federal Columbia River Power

System (“FCRPS”). The district court also directed the agencies to disclose to

plaintiffs information on planned projects at certain dams in order to ensure that

major expenditures do not bias the preparation of an environmental impact

statement (“EIS”) under the National Environmental Policy Act (“NEPA”), 42

U.S.C. §§ 4321-4347. We affirm the district court’s grant of the spill and fish

monitoring injunctions, and we dismiss the appeal of the NEPA disclosure order.




                                           13
                                          I

       The Columbia River is the fourth largest river on the North American

continent. It flows for more than 1,200 miles from the Canadian Rockies to the

Pacific Ocean, and it drains an area of approximately 258,000 square miles,

including territory in seven states and one Canadian province. The Snake River is

the largest tributary of the Columbia River. It flows for more than 1,000 miles

from Yellowstone National Park until it meets the Columbia River in Washington,

and it drains an area of approximately 108,000 square miles, including territory in

six states.

       Every year, salmon and steelhead (collectively, “salmonids”) travel up and

down the Columbia and Snake Rivers, hatching in fresh water, migrating

downstream to the Pacific Ocean on their way to adulthood, and later returning

upstream to spawn and die. The wild salmonid population has decreased

significantly in recent years. Today, there are thirteen species or populations of

Columbia River or Snake River salmonids that are listed as either endangered or

threatened under the ESA.

       When these fish migrate downstream to the Pacific Ocean, they face danger

from dams in the FCRPS. The dams contain turbines that produce power from the

flow of water. As the fish pass through the dams on their journey to the ocean, a


                                          14
high number die from swimming through the turbines. In light of this danger, each

dam in the migration corridor of the mainstem Columbia and Snake Rivers has a

bypass system to allow fish to avoid the turbines. At some dams, the bypass

systems consist of screens in front of the turbine intakes that divert the fish into

passageways through the dams and downstream. At others, the bypass systems

divert the fish into barges for transportation around the dams.

      The FCRPS includes eight multipurpose dams, reservoirs, and related

facilities on the mainstem Columbia and Snake Rivers in Montana, Washington,

Idaho, and Oregon. Three federal agencies coordinate to manage FCRPS dams:

the U.S. Army Corps of Engineers (the “Corps”), the U.S. Bureau of Reclamation

(“Reclamation”), and the Bonneville Power Administration (“Bonneville”). The

Corps operates the eight mainstem dams, Reclamation operates other FCRPS

dams, and Bonneville markets and transmits power generated from the

hydroelectric projects. States also play a role in dam management through the

governance of water diversions from the rivers and through state conservation

programs. A number of federally-recognized Indian Tribes retain treaty fishing

rights in the waters of the Columbia and Snake Rivers.

      This litigation, which has been ongoing since 2001, primarily concerns

application of the ESA to the management of the FCRPS. Section 7 of the ESA


                                           15
requires federal agencies, in consultation with what is known as the “consulting

agency,” to conserve species listed under the ESA. Section 7(a)(2) of the ESA

requires each federal agency to “insure that any action authorized, funded, or

carried out by such agency . . . is not likely to jeopardize the continued existence of

any endangered species or threatened species or result in the destruction or adverse

modification” of a listed species’ designated critical habitat. 16 U.S.C. §

1536(a)(2). Section 7 and its implementing regulations delineate the consultation

process for determining the biological impacts of a proposed action. 16 U.S.C. §

1536(a)-(c); 50 C.F.R. § 402. In brief, if a proposed federal action may jeopardize

listed species or adversely modify critical habitat, the “acting agency” must consult

with the “consulting agency.” 50 C.F.R. §§ 402.13, 402.14. Here, the acting

agencies are the Corps and Reclamation, and the consulting agency is the National

Marine Fisheries Service (“NMFS”).

      The consulting agency prepares a biological opinion (“BiOp”) setting forth

its conclusions about whether the proposed action will affect a listed species or its

designated critical habitat. 16 U.S.C. § 1536(b)(3)(A). An action jeopardizes a

listed species if it “reasonably would be expected, directly or indirectly, 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


                                          16
C.F.R. § 402.02. If the proposed action is likely to jeopardize a listed species’

existence or adversely modify its critical habitat, the BiOp must set forth a

reasonable and prudent alternative to the action (the “Alternative”) that is not likely

to jeopardize the species or adversely modify its habitat, if possible. 16 U.S.C. §

1536(b)(3)(A).

      If the BiOp concludes that jeopardy is not likely and that there will not be

adverse modification of critical habitat, or that the Alternative avoids jeopardy and

adverse modification and that the incidental taking of endangered or threatened

species will not violate section 7(a)(2), the consulting agency can issue an

“Incidental Take Statement.” If followed, the Incidental Take Statement exempts

the action agency from the prohibition on takings found in section 9 of the ESA.

16 U.S.C. § 1536(b)(4); Aluminum Co. of Am. v. Adm’r, Bonneville Power Admin.,

175 F.3d 1156, 1159 (9th Cir. 1999).

      The instant litigation also involves application of NEPA to the management

of the FCRPS. NEPA requires that federal agencies complete an EIS in connection

with “every recommendation or report on proposals for legislation and other major

Federal actions significantly affecting the quality of the human environment.” 42

U.S.C. § 4332(2)(C).




                                          17
      In addition to evaluating the proposed agency action, an EIS must

“[r]igorously explore and objectively evaluate all reasonable alternatives” to that

action. 40 C.F.R. § 1502.14(a). “NEPA’s purpose is twofold: (1) to ensure that

agencies carefully consider information about significant environmental impacts

and (2) to guarantee relevant information is available to the public.” N. Plains Res.

Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1072 (9th Cir. 2011).

      NMFS issued a BiOp in 2000 which concluded that operation of the FCRPS

dams jeopardized listed species but that a proposed Alternative would avoid

jeopardy. The National Wildlife Federation (“NWF”) challenged the 2000 BiOp,

initiating this litigation. The district court ruled that the BiOp was arbitrary and

capricious and remanded to NMFS to issue a new BiOp. Nat’l Wildlife Fed’n v.

Nat’l Marine Fisheries Serv. (“NWF I”), 254 F. Supp. 2d 1196 (D. Or. 2003).

      NMFS issued a new BiOp in 2004, which concluded that operation of the

FCRPS dams would not jeopardize listed species. NWF filed a second

supplemental complaint challenging the 2004 BiOp, and it moved for a preliminary

injunction. The district court granted the preliminary injunction. The injunction

required the acting agencies to increase the amount of water that passed through

spillgates on certain FCRPS dams during the summer of 2005, rather than passing

the water through turbines for power generation. The increased spill was intended


                                           18
to decrease the mortality rate of fish passing through the dams. On appeal, we held

that the district court had not abused its discretion in granting the injunction, but

we remanded to the district court to determine whether the injunction should be

more narrowly tailored. Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv.

(“NWF II”), 422 F.3d 782 (9th Cir. 2005). The district court eventually rejected

the 2004 BiOp and remanded to NMFS to issue a new BiOp. We affirmed the

district court’s rejection of the 2004 BiOp. Nat’l Wildlife Fed’n v. Nat’l Marine

Fisheries Serv. (“NWF III”), 524 F.3d 917 (9th Cir. 2008).

      NMFS issued a new BiOp in 2008. As a result of additional administrative

review, NMFS issued a supplemental BiOp in 2010. Those BiOps again concluded

that operation of the FCRPS dams jeopardized listed species, but that a proposed

Alternative would avoid jeopardy. In 2011, the district court rejected the

2008/2010 BiOp. Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv. (“NWF

IV”), 839 F. Supp. 2d 1117 (D. Or. 2011). The district court ordered NMFS to

issue a new BiOp by 2014. In the interim, the court ordered the acting agencies to

implement the 2008/2010 BiOp’s Alternative and ordered increased spill to

mitigate irreparable harm from dam operations.

      NMFS issued its latest BiOp in 2014. The 2014 BiOp was a supplement to

the 2008 BiOp. The 2014 BiOp again concluded that operation of the FCRPS


                                           19
dams would jeopardize listed species and adversely modify critical habitat. It

again proposed an Alternative, consisting of a suite of 74 actions that cover a ten-

year period (from 2008 to 2018). The Alternative included modifications to

system operations and structures at the dams to improve fish passage and migration

conditions; actions to reduce salmonid predation; actions to restore salmonid

habitat; hatchery management; and research, monitoring, and evaluation of

salmonids. The Alternative includes some spill in order to enhance the survival of

migrating juvenile salmonids. The 2014 BiOp concluded that the Alternative

would avoid jeopardy and adverse modification of critical habitat.

      Plaintiffs NWF and the State of Oregon filed supplemental complaints

challenging the 2014 BiOp for violations of the ESA and arguing that the Corps

and Reclamation had violated NEPA. In May 2016, the district court granted

partial summary judgment to plaintiffs. Nat’l Wildlife Fed’n v. Nat’l Marine

Fisheries Serv. (“NWF V”), 184 F. Supp. 3d 861 (D. Or. 2016). The district court

concluded that NMFS violated the ESA and the Administrative Procedure Act

(“APA”) in determining in the 2014 BiOp that the Alternative did not jeopardize

listed species. It also concluded that the Corps and Reclamation violated NEPA by

not preparing a proper EIS under NEPA.




                                          20
      However, the court concluded that NMFS did not violate the ESA or APA in

determining that the Alternative does not adversely modify critical habitat and will

not adversely affect Southern Resident Killer Whales. The court remanded to

NMFS to issue a new BiOp by March 1, 2018. It stated that it retained jurisdiction

over the litigation to ensure that the agencies develop mitigation measures to avoid

jeopardy, issue a compliant BiOp, and prepare a compliant EIS. Federal

defendants and intervenor-defendants initially appealed this order, but they have

since dismissed those appeals.

      In July 2016, the district court entered a new remand order (the “July 2016

order”). That order approved a proposed five-year schedule for preparation of a

proper EIS under NEPA. The order also extended the deadline for issuing a new

BiOp to December 31, 2018. Finally, the order directed federal defendants to keep

the 2014 BiOp in place and to continue to implement its Alternative until the new

BiOp is issued.

      In January 2017, plaintiffs filed motions requesting injunctive relief for the

ESA violations identified by the district court in NWF V. First, plaintiffs sought an

injunction ordering the Corps to increase spill to the maximum level that meets, but

does not exceed, existing total dissolved gas criteria allowed under state law (the

“gas cap”) from April to June at the eight mainstem FCRPS dams. The requested


                                          21
spill would commence in April 2017 and continue for the remainder of the BiOp

remand period. The proposed injunction contained off-ramps to allow the Corps to

reduce spill for reasons such as power emergencies, health and safety, or other

issues.

      Oregon also sought an injunction ordering federal defendants to operate

juvenile bypass facilities and associated Passive Integrated Transponder (“PIT”)

tag detection systems at FCRPS dams beginning in March 2017. NWF sought an

injunction under NEPA that would prohibit the Corps from making significant

capital expenditures at certain FCRPS dams during the NEPA remand period

absent court approval. Such expenditures, NWF argued, would bias the ongoing

EIS process.

      In April 2017, the district court entered an amended order granting in part

and denying in part plaintiffs’ injunction motions (the “April 2017 order”). The

district court first considered whether plaintiffs’ motions were barred by Federal

Rule of Procedure 60(b). The court held that, even if Rule 60(b) applied to

plaintiffs’ motions, it could grant the requested relief under Rule 60(b)(6).

      The district court granted the motions for injunctive relief under the ESA.

The court held that there is no presumption of irreparable injury where there has

been an ESA violation, but that the court was stripped of discretion to weigh other


                                          22
traditional equitable factors. The district court held that plaintiffs did not need to

show that operating without the requested court-ordered spill during the two-year

remand period would pose an imminent threat at the species level, nor that the

Alternative’s spill-related operations specifically are causing irreparable harm.

Considering the evidence in the record—including findings from previous opinions

and orders issued as part of this litigation—the court found irreparable harm

sufficient to order increased spring spill. The court decided that implementing

increased spill in spring 2017 was too rushed, and it delayed the new spill

operations until April 3, 2018. It ordered the federal defendants, in collaboration

with the parties and regional experts, to produce a spill plan and proposed

injunction order.

      The district court also granted plaintiffs’ PIT tag monitoring injunction, but

it delayed implementation until March 1, 2018. Finally, the district court

considered plaintiffs’ NEPA capital expenditure injunction request. The court

found that significant expenditures on FCRPS dams during the NEPA remand

period were likely to cause irreparable harm by creating a substantial risk of bias in

the NEPA process. The district court nevertheless denied plaintiffs’ injunction

motion, because it found that the balance of hardships and considerations of public

interest favored allowing some expenditures. However, the court directed the


                                           23
Corps and Reclamation to disclose information to plaintiffs regarding planned

expenditures at FCRPS dams. With this information, plaintiffs could file motions

to enjoin projects that were not necessary for dam safety and that could

substantially bias the NEPA process.

      Federal defendants and three intervenor-defendants timely appealed. We

consolidated these appeals.

                                         II

      Federal Rule of Civil Procedure 60(b) did not bar plaintiffs’ January 2017

injunction motions, as federal defendants and intervenor-defendants contend.

Defendants argue that NWF V was a final judgment, and thus plaintiffs’ January

2017 motions for injunctive relief were subject to Rule 60(b). Defendants further

contend that Rule 60(b)(6)—which the district court relied on in its April 2017

order—does not permit the motion. However, the May 2016 summary judgment

and remand order was not a final judgment, and thus Rule 60(b) did not apply to

the January 2017 injunction motion.

      Rule 60(b) provides grounds for relief “from a final judgment, order, or

proceeding.” Fed. R. Civ. P. 60(b). The word “final” in the Rule designates orders

that terminate litigation and are subject to appeal. Corn v. Guam Coral Co., 318

F.2d 622, 628-29 (9th Cir. 1963). The final judgment rule is to be “given a


                                         24
practical rather than a technical construction.” Sierra Forest Legacy v. Sherman,

646 F.3d 1161, 1175 (9th Cir. 2011) (internal quotation marks omitted).

       Giving the finality rule a practical construction, the May 2016 order was not

final. In that order, the district court expressly stated that it “retains jurisdiction

over this matter” to ensure that federal defendants develop appropriate mitigation

measures to avoid jeopardy, issue a new BiOp that complies with the ESA and

APA, and prepare an EIS that complies with NEPA. NWF V, 184 F. Supp. 3d at

950. Moreover, federal defendants appear to have acknowledged that the May

2016 order did not preclude plaintiffs from moving for later injunctive relief. In

July 2016, before the district court issued its NEPA remand order, federal

defendants submitted a reply brief to the court in which they stated that plaintiffs

“are free to move the Court for [injunctive] relief if at some future point they deem

it necessary.” In light of the district court’s retention of jurisdiction, the May 2016

order was not a final judgment, and Rule 60(b) did not apply to plaintiffs’ January

2017 motions for injunctive relief.

       This conclusion is consistent with our past rulings on the finality of remand

orders. A remand order is ordinarily final only for purposes of a government

appeal under 28 U.S.C. § 1291. HonoluluTraffic.com v. Fed. Transit Admin., 742

F.3d 1222, 1229 (9th Cir. 2014). A remand order may be final for purpose of a


                                            25
plaintiff’s appeal in cases “when the broad relief sought could not be achieved

through the action the district court directed the agency to undertake.” Sierra

Forest Legacy, 646 F.3d at 1175. For example, an “extremely narrow” partial

remand for a “mechanical recalculation” does not preclude appellate review of a

plaintiff’s underlying claims, because the district court’s opinion is “practically

final.” Pauly v. U.S. Dep’t of Agric., 348 F.3d 1143, 1148 (9th Cir. 2003). The

May 2016 remand order was not “extremely narrow” or merely for a “mechanical

recalculation.” It granted plaintiffs most of the relief they sought. The rare

circumstances in which an order remanding to an agency can be final for purposes

of a plaintiff’s appeal do not apply here. Thus, the May 2016 order was not a final

judgment, Rule 60(b) did not apply to subsequent injunction motions, and the

district court did not err in considering plaintiffs’ January 2017 motions.

                                          III

      The district court did not abuse its discretion in granting the spring spill

injunction. Federal defendants and intervenor-defendants argue that the framework

the district court used in analyzing the request for injunctive relief was incorrect as

a matter of law and that the district court’s findings of fact were clearly erroneous.

Intervenor-defendant Northwest RiverPartners also argues that, even if plaintiffs

have established irreparable harm to listed species, they have not established


                                           26
irreparable harm to themselves. Finally, federal defendants and intervenor-

defendants argue that the district court’s injunction was an abuse of discretion

because it was not narrowly tailored to the irreparable harm found. After due

consideration of these arguments, we conclude that the district court did not abuse

its discretion in granting the spill injunction.

                                            A

       A plaintiff seeking a permanent injunction must show:

       (1) that it has suffered an irreparable injury; (2) that remedies available at
       law, such as monetary damages, are inadequate to compensate for that
       injury; (3) that, considering the balance of hardships between the plaintiff
       and defendant, a remedy in equity is warranted; and (4) that the public
       interest would not be disserved by a permanent injunction.

Cottonwood Envt’l Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1088 (9th Cir.

2015) (quoting eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)).

The district court concluded that plaintiffs here sought “interim injunctive

measures,” because the injunction may be lifted after federal defendants issue a

new BiOp and comply with NEPA. See S. Yuba River Citizens League v. Nat’l

Marine Fisheries Serv., 804 F. Supp. 2d 1045, 1052 (E.D. Cal. 2011). Thus, the

first prong of the injunction test should be modified to match the analogous prong

in the preliminary injunction test: plaintiffs must show that they are “likely to

suffer irreparable harm in the absence of preliminary relief.” Winter v. Nat. Res.


                                            27
Def. Council, Inc., 555 U.S. 7, 20 (2008); see also S. Yuba River Citizens League,

804 F. Supp. 2d at 1052 (concluding that where a similar procedural posture

existed, the court would look at “whether the measures are necessary to prevent

irreparable injury”).

      “[T]he ESA strips courts of at least some of their equitable discretion in

determining whether injunctive relief is warranted.” Cottonwood, 789 F.3d at

1090. The ESA removes the latter three factors in the four-factor injunctive relief

test from our equitable discretion. When considering an injunction under the ESA,

we presume that remedies at law are inadequate, that the balance of interests

weighs in favor of protecting endangered species, and that the public interest

would not be disserved by an injunction. Id.

      The ESA does not, however, restrict our discretion to decide whether a

plaintiff has suffered an irreparable injury. Cottonwood, 789 F.3d at 1090.

“[T]here is no presumption of irreparable injury where there has been a procedural

violation in ESA cases.” Id. at 1091. Plaintiffs must demonstrate that irreparable

injury “is likely in the absence of an injunction.” Winter, 555 U.S. at 22 (emphasis

in original). A “possibility” of irreparable harm cannot support an injunction. Id.




                                         28
                                           B

      The district court conducted a proper irreparable harm analysis. Federal

defendants and intervenor-defendants contend that the district court erred by not

focusing on extinction-level risks to the listed species during the remainder of the

remand period. They contend that the district court also erred by considering

harms from the operation of the FCRPS dams as a whole, rather than harms from

only the spill-related components of the Alternative during the remainder of the

remand period.

      We review the legal conclusions underlying the grant of an injunction de

novo. Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1030 (9th Cir.

2013). We conclude that the district court did not conduct an incorrect irreparable

harm analysis.

                                           1

      The district court did not err when it found irreparable harm without finding

an extinction-level threat to the listed species in the remaining two years of the

remand period. Irreparable harm should be determined by reference to the

purposes of the statute being enforced. See Garcia v. Google, 786 F.3d 733, 744-

45 (9th Cir. 2015) (en banc) (rejecting allegations of irreparable harm because the

harm was not to legal interests meant to be protected by copyright law); see also


                                          29
Sierra Club v. Marsh, 872 F.2d 497, 502-03 (1st Cir. 1989) (stating that the kinds

of harms that may be irreparable “will be different according to each statute’s

structure and purpose”).

      One of the ESA’s central purposes is to conserve species. See 16 U.S.C. §

1531(b) (a purpose of the ESA is to provide “a program for the conservation of . . .

endangered species and threatened species”). The “plain intent” of Congress in

enacting the ESA was “to halt and reverse the trend toward species extinction,

whatever the cost.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184 (1978); see also

16 U.S.C. § 1532(3) (defining “conservation” as “the use of all methods and

procedures which are necessary to bring any endangered species or threatened

species to the point at which the measures provided pursuant to this chapter are no

longer necessary”). The ESA accomplishes its purpose in incremental steps, which

include protecting the remaining members of a species. See 16 U.S.C. §

1538(a)(1)(B) (prohibiting the “take” of any animal from a listed species). Harm

to those members is irreparable because “[o]nce a member of an endangered

species has been injured, the task of preserving that species becomes all the more

difficult.” FCC v. Rosboro Lumber, 50 F.3d 781, 785 (9th Cir. 1995); see also

Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1066 (9th Cir. 1996) (concluding that

habitat modification which significantly impaired breeding and sheltering of a


                                         30
listed species amounted to “harm” under ESA, even though plaintiffs did not allege

extinction-level threat to the species).

      Showing an extinction-level threat to listed species is not required before an

injunction can issue under the ESA:

      We are not saying that a threat of extinction to the species is required before
      an injunction may issue under the ESA. This would be contrary to the spirit
      of the statute, whose goal of preserving threatened and endangered species
      can also be achieved through incremental steps. However, what we require
      is a definitive threat of future harm to protected species, not mere
      speculation.

Nat’l Wildlife Fed’n v. Burlington N. R.R., 23 F.3d 1508, 1512 n.8 (9th Cir. 1994).

Thus, a threat of harm to a listed species that falls below an imminent extinction

threat can justify an injunction.

      That the plaintiffs in Marbled Murrelet and Burlington N. R.R. sought

injunctions under section 9 of the ESA rather than for procedural violations of

section 7(a)(2) does not render those cases inapposite. When a court assesses

whether the purposes of a statute constrain its equitable discretion, it is error to

“focus[] on the statutory procedure rather than on the underlying substantive policy

the process was designed to effect.” Amoco Prod. Co. v. Village of Gambell, 480

U.S. 531, 544 (1987). Here, the ESA’s underlying purpose is the conservation of

species, and that purpose animates both sections 7 and 9. See Cottonwood, 789



                                           31
F.3d at 1091-92 (recognizing that the “purposes and objectives” of the ESA

provide “fundamental direction to the district courts when confronted with a

request for injunctive relief to remedy a procedural violation of the ESA,” and the

ESA’s purpose is to conserve “species and the ecosystems that support them”).

      Moreover, the fact that section 7(a)(2) permits some incidental take of

listed species does not establish that harm to individual members of a species

cannot be irreparable. Section 7(a)(2) permits incidental take only where NMFS

has determined in a valid BiOp that the activity and level of incidental take

complies with the ESA. 16 U.S.C. §§ 1536(b)(4)(A)-(B). Where, as here, the BiOp

violates the ESA, that condition is absent.

      Thus, the district court was not required to find a short-term extinction-level

threat to listed species in order to find likely irreparable harm for purposes of an

ESA injunction. It was not legal error or an abuse of discretion to base the

injunction on a finding of a lesser magnitude of harm.

                                           2

      The district court did not err when it found harm from the operation of the

FCRPS dams as a whole, rather than harm from only the spill-related components

of the Alternative during the remainder of the remand period. Irreparable harm

requires a showing that the harm “is likely in the absence of the injunction.”


                                           32
Winter, 555 U.S. at 22 (emphasis added). There must be a “sufficient causal

connection” between the alleged irreparable harm and the activity to be enjoined,

and showing that “the requested injunction would forestall” the irreparable harm

qualifies as such a connection. Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 981-

82 (9th Cir. 2011). However, a plaintiff “need not further show that the action

sought to be enjoined is the exclusive cause of the injury.” M.R. v. Dreyfus, 697

F.3d 706, 728 (9th Cir. 2012).

      While the irreparable harm must be causally connected to the activity to be

enjoined, we have not held that the cause of an irreparable injury must be defined

as narrowly as federal defendants and intervenor-defendants suggest. Irreparable

harm may be caused by activities broader than those that plaintiffs seek to enjoin.

Moreover, as a practical matter, the effects on listed species of the current spill

regime on listed species cannot be cleanly divorced from the effects of FCRPS

dam operations taken as a whole. Listed species are exposed to the combined

operations of the entire system. Finally, we note that our earlier rulings in the

course of this litigation suggest that the cause of irreparable harm can be broader

than merely the activity to be enjoined. When we affirmed the 2005 spill

injunction, we considered the operation of the FCRPS dams as a whole and upheld




                                           33
a finding of irreparable injury when “continuation of the status quo could result in

irreparable harm to a threatened species.” NWF II, 422 F.3d at 796.

      The district court was not required to find irreparable harm solely from the

current spill regime in order to find irreparable harm for purposes of an ESA

injunction. It was not an abuse of discretion to base the injunction on a finding of

irreparable harm from the operation of the FCRPS dams as a whole.

                                            C

      The district court did not err in finding irreparable harm sufficient to support

injunctive relief. The district properly concluded that FCRPS dam operations were

likely to cause irreparable harm to listed salmonids. The district court also

properly concluded that plaintiffs had adequately shown harm to themselves as a

result of harm to listed salmonids.

      We review the factual findings underlying the grant of an injunction for

clear error. NWF II, 422 F.3d at 794-95. A finding of fact is clearly erroneous if it

is implausible in light of the record, viewed in its entirety, or if the record contains

no evidence to support it. Id. at 794 (internal citations omitted).

                                            1

      The district court properly concluded that operation of the FCRPS dams

would cause irreparable harm to listed salmonids absent an injunction. The district


                                           34
court relied on the record underlying NWF V as well as findings contained in

earlier opinions and orders. The district court described NWF V as finding “that

despite the 73 RPAs [reasonable and prudent alternatives] from the 2008 and 2014

BiOps, the most recent data shows that the listed species remain in a ‘precarious,’

‘imperiled,’ and ‘perilous’ state.” The data that NWF V relied on in making its

precarious state finding comes from Table 2.1-1 of the 2014 BiOp, which

summarized a five-year status review of listed species conducted in 2011. See

NWF V, 184 F. Supp. 3d at 879-80 (citing 2014 BiOp at pp. 70-71). Table 2.1-1

shows that, as measured by “Overall Viability Rating,” 50 of the 77 (64.9 percent)

evolutionary significant units of listed species are at “high risk” of extinction. This

includes 27 of 28 populations of Snake River Spring/Summer Chinook and all

populations of the Upper Columbia River Steelhead and Spring Chinook. Twenty-

two of the 77 populations (28.5 percent) are at “maintained risk” of extinction, 3 of

the 77 populations (3.8 percent) are “viable,” and 2 of the 77 populations (2.5

percent) are “highly viable.”

      The district court also highlighted our opinion in NWF III, which

emphasized the highly precarious status of the listed species. See NWF III, 524

F.3d at 933. It also cited the 2011 spill injunction order, which found “ample

evidence in the record that indicates that the operation of the FCRPS causes


                                          35
substantial harm to listed salmonids” and that the existence and operation of the

dams accounts for most of the mortality of juveniles migrating through the FCRPS.

NWF IV, 839 F. Supp. 2d at 1131. Thus, there is a likelihood of irreparable harm

to listed salmonids from the operation of the FCRPS dams as a whole.

      Federal defendants and intervenor-defendants argue that the district court’s

findings were not supported by the record. First, federal defendants argue that

NWF V and the April 2017 order did not find that the 74 actions constituting the

Alternative are likely to jeopardize the continued existence of listed species,

because the only findings concerned recovery of listed species. Thus, federal

defendants argue, the April 2017 injunction order did not support a finding that any

listed species faced a threat of extinction in the short term.

      As discussed above, the district court did not need to find an extinction-level

threat to the listed species in the short term. However, even if a focus only on

short-term survival were required, the district court found that the continued low

abundance of the listed species made them vulnerable to extinction. The district

court found in NWF V that NMFS had failed to analyze properly how climate

change “increases the chances of an event that would be catastrophic for the

survival” of listed species. NWF V, 184 F. Supp. 3d at 874. The district court cited

documents from NMFS that acknowledged that “[i]mpeding a species’ progress


                                           36
toward recovery exposes it to additional risk and so reduces its likelihood of

survival.” NWF V, 184 F. Supp. 3d at 891 (quoting August 26, 1999 NOAA

Fisheries Memorandum on Habitat Approach from Rick Applegate and Donna

Darm at p. 3). The April 2017 order made clear that the sustained low abundance

of the listed species made them vulnerable to extinction from shock events, and

this vulnerability was confirmed by climatic conditions in 2015.

      Federal defendants and intervenor-defendants also argue that there is a

“mismatch” between NWF V’s conclusions on the Alternative and the findings of

irreparable harm in the April 2017 order. According to defendants, this mismatch

is evidenced by NWF V’s holding that NMFS’s determination that the Alternative

is not likely to adversely modify critical habitat was not arbitrary and capricious.

NWF V, 184 F. Supp. 3d at 933. Federal defendants also cite the findings from

NMFS’s most recent five-year review of listed species, which plaintiffs have not

contested, concluding that the “risk trends” for the relevant listed species are all

either stable or improving. In light of these findings, federal defendants assert that

the district court’s finding of irreparable harm is not supported by the evidence.

      However, the district court properly concluded that the listed species

remain in a “precarious” state, and that they will remain in such a state without

further conservation efforts beyond those included in the 2014 BiOp. Although the


                                           37
district court declined to hold that NMFS’s critical habitat determination was

arbitrary and capricious, it nevertheless found that critical habitat, including “the

migration corridors [of the Snake and Columbia Rivers] are degraded, are not

functional, and do not serve their conservation role.” NWF V, 184 F.Supp. 3d at

930. The fact that the 2014 BiOp’s Alternative would lead to “significant

improvements to the mainstem habitat,” NWF V, 184 F.Supp.3d at 933, does not

establish an absence of harm; it only establishes an incremental improvement. The

same is true of federal defendants’ argument about the five-year review allegations,

which establish some improvement but do not negate a finding of continued low

abundance and vulnerability.

      Federal defendants also assert that the district court’s finding of irreparable

harm was insufficient because its use of labels like “precarious” was not grounded

in evidence beyond the fact that the species remain listed. However, the district

court did not rely merely on the fact that the species remain listed. It relied on

earlier findings that the low abundance levels of the listed species rendered them

subject to sudden shocks from, e.g., climate change; and it relied on findings that

highlighted specific threats to the listed species beyond the mere fact of their low

abundance. These findings were not clearly erroneous.




                                           38
                                           2

      Intervenor-defendant Northwest RiverPartners argues that plaintiffs have

shown harm to the listed species, but not to themselves. The district court rejected

RiverPartners’ argument, finding that plaintiffs “have adequately shown how harm

to the listed species will affect” them. We agree.

      Plaintiffs seeking injunctive relief must show that they themselves are likely

to suffer irreparable harm absent an injunction. Winter, 555 U.S. at 20 (plaintiff

must establish “that he is likely to suffer irreparable harm”); see also Friends of the

Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 181 (2000) (for

standing purposes, plaintiff must show “injury to the plaintiff” rather than “injury

to the environment”). Here, plaintiffs have shown irreparable harm to their own

interests stemming from the irreparable harm to the listed species. For example, in

support of its motion for the injunction, NWF submitted a declaration from Kevin

Lewis that described his recreational and aesthetic pursuits on Idaho’s rivers that

depend on the health of listed salmonid populations. He stated that “[t]he entire

ecosystem where I boat, photograph and recreate is degraded and harmed by the

greatly diminished levels or even absence of salmon and steelhead from their

historic habitat.” He connected his injuries to the anticipated irreparable injuries to

salmonids from dam operations, stating that “[f]ewer salmon mean fewer


                                          39
opportunities to see them, and because healthy salmon and steelhead populations

are essential to my ability to completely enjoy the wonders of Idaho’s rivers, fewer

salmon directly harm my enjoyment of these activities.”

      This evidence is consistent with evidence we have held sufficient for

irreparable harm in similar contexts. See, e.g., All. for the Wild Rockies v. Cottrell,

632 F.3d 1127, 1135 (9th Cir. 2011) (upholding finding of irreparable harm where

plaintiff organization asserted “that the Project will harm its members’ ability to

‘view, experience, and utilize’ the areas in their undisturbed state”). The district

court decisions that Northwest RiverPartners cites are not to the contrary, because

in both cases, the plaintiffs had failed even to establish irreparable harm to the

listed species. See Native Ecosystems Council v. Krueger, 40 F. Supp. 3d 1344,

1349 (D. Mont. 2014) (stating that plaintiffs did not “provide evidence of any

irreparable harm to any endangered, threatened, or proposed species or species

habitat in the absence of an injunction” or even that such species were present in

the affected area); Idaho Rivers United v. U.S. Army Corps of Eng’rs, 156 F. Supp.

3d 1252, 1264 (W.D. Wash. 2015) (concluding that “because Plaintiffs have failed

to make a strong showing that irreparable harm to the Pacific lamprey is likely,

they have also failed to establish a likelihood of irreparable harm to” themselves).




                                           40
      The district court’s finding of irreparable harm to plaintiffs themselves was

not clearly erroneous. It was not an abuse of discretion to base the injunction on

this finding.

                                           D

      The district court’s injunction was narrowly tailored to avoid the irreparable

harm that the district court identified. We review the scope of an injunction for

abuse of discretion. Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646, 653 (9th

Cir. 2002). We review the factual findings underlying an injunction for clear error.

Id. A trial court abuses its discretion “by fashioning an injunction which is overly

broad.” United States v. AMC Entm’t, Inc., 549 F.3d 760, 768 (9th Cir. 2008).

The injunction here is not overly broad.

      There must be a “sufficient causal connection” between the alleged

irreparable harm and the activity to be enjoined, Perfect 10, 653 F.3d at 982, but a

plaintiff “need not further show that the action sought to be enjoined is the

exclusive cause of the injury.” M.R., 697 F.3d at 728. It is not an abuse of

discretion for a court to issue an injunction that does not completely prevent the

irreparable harm that it identifies.

      The district court reviewed evidence in favor of and against additional spill,

including evidence from the Comparative Survival Study (“CSS”) annual reports;


                                           41
the Independent Scientific Advisory Board’s (“ISAB”) February 20, 2014 review

of a spill experiment proposal based on a 2013 CSS study; and Oregon’s experts.

The district court acknowledged that federal defendants provided expert testimony

expressing “concerns regarding increased spill,” but it concluded that the evidence

opposing increased spill was “not as compelling as the evidence supporting

additional spill,” and that federal defendants’ concerns could be addressed by

narrowly tailoring the injunction. The court’s finding that “there is sufficient

scientific support for a limited injunction requiring increased spill to benefit the

listed species” is not clearly erroneous.

      Federal defendants argue that plaintiffs only identified vague and

hypothetical survival benefits from increased spill. This is incorrect. In support of

its injunction motion, Oregon presented expert declarations attesting that increased

spill would improve juvenile survival and adult returns. This evidence is not of

“potential” or “hypothesized” survival benefits; it includes significant evidence

from decades of studies showing that spill volumes higher than those proposed in

the 2014 BiOp will lead to higher survival rates for outmigrating salmonids.

Federal defendants attempt to relitigate the district court’s consideration of the

scientific evidence for and against increased spill. At best, federal defendants




                                            42
establish uncertainty about the benefits of increased spill, but the existence of

scientific uncertainty does not render the district court’s findings clearly erroneous.

      That the district court described the injunctive relief as involving “some

experimentation” is not to the contrary. The district court expressed similar

uncertainty about whether the risks of gas-cap spill that federal defendants asserted

would materialize. Some uncertainty about the efficacy of an injunction does not

render the factual findings underlying the injunction clearly erroneous.

      In addition to challenging the factual findings underlying the injunction,

federal defendants argue that the scope of the injunction was an abuse of

discretion. Specifically, federal defendants argue that the spill injunction intrudes

into the traditional administrative functions of federal agencies. We disagree.

      In fashioning equitable relief, a court “must act within the bounds of the

statute and without intruding upon the administrative province,” but it “may adjust

its relief to the exigencies of the case in accordance with the equitable principles

governing judicial action.” Sierra Pac. Indus. v. Lyng, 866 F.2d 1099, 1111 (9th

Cir. 1989) (quoting Ford Motor Co. v. NLRB, 305 U.S. 364, 373 (1939)). The

district court’s order does not run afoul of these principles. The court ordered the

parties to develop a spill operation plan and gave them a year of lead time to do so.

This gave the agencies ample time to conduct short-term tests to consider the


                                           43
effects of increased spill, to evaluate what problems might arise, and to make

adjustments to the spill operation plan without having to worry about violating a

court order. This does not constitute an “unbounded” exercise of discretion, and it

does not “intrud[e] upon the administrative province.” The scope of injunctive

relief is well within the ambit of the district court’s equitable authority. The order

was not an abuse of discretion.

                                          III

       The district court did not abuse its discretion in granting the PIT tag

monitoring injunction. The PIT tag monitoring injunction is evaluated using the

same modified permanent injunction standard as was used to evaluate the spill

injunction. The April 2017 order applied the correct irreparable harm analysis, was

not based on clearly erroneous findings of facts, and did not exceed the bounds of

the district court’s discretion.

       Intervenor-defendants Idaho and Montana argue that the district court erred

by not finding irreparable harm specifically from the absence of PIT tag

monitoring in 2018. This repeats the argument discussed above, that the district

court’s discretion was limited to finding irreparable harm specifically from the

spill-related components of the Alternative in the remainder of the remand period.




                                           44
As discussed, the district court’s discretion in finding irreparable harm is not so

limited. The district court’s analysis of irreparable harm was not legally erroneous.

      Federal defendants and intervenor-defendants also argue that this injunction

was not based on findings in the record. However, the district court cited expert

testimony stating that “early monitoring will provide a biological benefit by

providing an alternative to turbine passage for outmigrating fish during the pre-

spill period and that the early and late tails of a run are particularly important for

species diversity.” The district court also cited Washington’s expert, who

supported early PIT tag monitoring and stated in a declaration that “[t]here is

strong scientific evidence that the tails of salmon and steelhead runs contain a

disproportionate amount of the population traits that support adaptation to

environmental changes, such as the conditions witnessed in 2015.” The court

noted that the defendants “question the volume of fish that may be migrating

early,” but it apparently did not find this evidence more persuasive than the

evidence presented by the plaintiffs. The district court’s findings were not clearly

erroneous.

      The remainder of the arguments asserted against the PIT tag monitoring

injunction repeat arguments discussed above, that the district court exceeded the

bounds of its discretion by not deferring to the agencies’ judgment as to how to


                                           45
manage the dams. For the same reasons that the spill injunction was not an abuse

of discretion, the PIT tag monitoring injunction was also not an abuse of discretion.

                                          IV

      The district court’s NEPA disclosure order is not properly before us. We

have jurisdiction over interlocutory orders from the district courts “granting,

continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or

modify injunctions.” 28 U.S.C. § 1292(a)(1). Because the district court’s order

neither granted an injunction nor modified an injunction, it is not appealable under

§ 1292(a)(1).

      “An order by a federal court that relates only to the conduct or progress of

litigation before that court ordinarily is not considered an injunction and therefore

is not appealable under § 1292(a)(1).” Gulfstream Aerospace Corp. v. Mayacamas

Corp., 485 U.S. 271, 279 (1988). Orders relating to discovery, for example, are

orders that regulate the conduct of litigation and are not appealable under §

1292(a)(1). Gon v. First State Ins. Co., 871 F.2d 863, 865-66 (9th Cir. 1989).

Here, the district court ordered the Corps and Reclamation “to disclose sufficient

information to Plaintiffs regarding the planned projects at each dam during the

NEPA remand period, at appropriate and regular intervals.” The court noted that

plaintiffs could “file a new motion with the Court to enjoin” a planned project if


                                          46
they believed that it was not needed for safe operations of the dams and would

substantially bias the NEPA process. Rather than granting “some or all of the

substantive relief sought by a complaint,” which could qualify as an injunction, the

disclosure order thus “concern[s] the conduct of the parties or their counsel” in

litigation. In re Lorillard Tobacco Co., 370 F.3d 982, 986-87 (9th Cir. 2004)

(quoting Int’l Prods. Corp. v. Koons, 325 F.2d 403, 406-07 (2d Cir. 1963)). It is

akin to a discovery order rather than an injunction, and it is not appealable under §

1292(a)(1).

      Nor did the disclosure order modify the existing NEPA injunction, which

requires the Corps and Reclamation to prepare a compliant EIS within five years.

The disclosure order did not substantially change the terms of the NEPA

injunction, nor did it alter the legal relationship between plaintiffs and the agencies.

The order only required periodic disclosures with the court so that plaintiffs would

have the option of seeking later injunctive relief if necessary. This does not

constitute a modification of the existing injunction. See Cunningham v. David

Special Commitment Ctr., 158 F.3d 1035, 1037 (9th Cir. 1998) (holding that an

order modifies an injunction for purposes of § 1292(a)(1) only if it “substantially

alters the legal relations of the parties”); cf. Gon, 871 F.2d at 866 (holding that an

order modified an existing injunction because it “substantially changed the terms


                                           47
and force of the injunction”). The district court’s disclosure order is thus not

appealable under § 1292(a)(1) and is not properly before us. If plaintiffs later seek

to enjoin expenditures on FCRPS dam projects and the district court grants such

relief, the agencies retain the option to appeal to this Court.

                                            V

         After a careful review of the record, we affirm the judgment of the district

court. It did not abuse its discretion in granting injunctive relief to plaintiffs. We

dismiss intervenor-defendants’ appeal of the district court’s NEPA disclosure

order.



         AFFIRMED in part, DISMISSED in part.




                                            48
49
