Opinion
Civ. No. 00-0730-E-BLW.
November 14, 2002
MEMORANDUM DECISION
INTRODUCTION
The Court has before it a motion for summary judgment and permanent injunction filed by plaintiffs (hereinafter collectively referred to as IWP) and a motion in limine filed by defendants Verl and Tuddie Jones. The Court will grant IWP's motion and deny the Jones' motion. The Court's reasoning is expressed below.
LITIGATION BACKGROUND
The bull trout is a "threatened" species under the Endangered Species Act (ESA). In this lawsuit, IWP claims that the Jones are harming bull trout by operating a diversion dam on Otter Creek that blocks migration and diverts bull trout into an irrigation ditch.
The Joneses operate a small farm and ranch near the town of Challis, Idaho. Since 1961, they have diverted water from Otter Creek in the summer months to irrigate their pasture land. Using tarps and rocks, they divert a portion of Otter Creek into a mile-and-a-half long diversion ditch that empties into Morgan Creek, near the Jones' pasture land.
The diversion on Otter Creek and the entire length of the diversion ditch lie within the boundaries of the Salmon-Challis National Forest. The Forest Service issued a special use permit to the Jones to operate the diversion. That permit expired in 1991, and they applied for a permanent easement that same year.
In response to that application, the Forest Service prepared a Biological Assessment (BA), dated April 19, 2001. It did not assess whether an easement should be granted — the Forest Service was compelled by law to do that — but instead examined what terms should govern the easement. The BA concluded that among those terms should be requirements that the Joneses install at the diversion (1) a head gate to allow "up and downstream migration of resident and fluvial bull trout"; and (2) a fish gate "to prevent the entrainment [in the ditch] of juvenile and adult bull trout." See BA at p. 11. The BA also concluded that the cumulative effects of the diversion "are likely to adversely affect" bull trout. Id. at p. 17.
The Forest Service's finding that the diversion would have adverse affects on a protected species triggered a duty on the part of the Forest Service, under § 7 of the ESA, to consult with other federal agencies. The Forest Service initiated that consultation and it has now been completed. The Forest Service is presently in discussions with the Joneses over the terms that will govern the permanent easement.
When this lawsuit was filed in 2000, there was no head gate or fish gate at the diversion. IWP claimed that the absence of these devices allowed bull trout to be diverted from Otter Creek, a hospitable habitat, into the ditch, a more hostile environment. IWP contends that the ditch lacks the shady cover, gravel bottom, woody debris, and complex system of pools and riffles, among other things, necessary for the survival of the bull trout. IWP also asserted that the diversion was reducing flows and thereby hindering bull trout migration past the diversion. Claiming that the diversion was harming a threatened species under the ESA, IWP sought to enjoin the Joneses from operating the diversion without a head gate and fish gate.
IWP originally included the Forest Service as a defendant, but those parties later reached a settlement when the Forest Service agreed to complete a BA.
The Court set the matter for hearing on IWP's motion for injunctive relief. On May 11, 2001, the parties filed a stipulation that rendered the hearing unnecessary. In that stipulation, the Jones' agreed "that they will not divert any water from Otter Creek this year until a fish screen is in place to keep any fish from getting into the Otter Creek irrigation ditch; and that as part of work on such screen the diversion structure will be modified to ensure that Otter Creek is not de-watered below the diversion and that the structure does not block fish movement up and down the creek."
During this same time, the Joneses sought advice from the Idaho Department of Fish and Game (IDFG), a state agency. Mike Larken, the Fish Manager for this region of the IDFG, concluded that a "stair step system" would provide "free passage of bull trout for both upstream spawning and downstream overwintering." See Affidavit of Larken at ¶ 7, p. 2. Larkin also concluded that "[s]creening the irrigation canal to prevent bull trout from entering the ditch would have very limited benefit." Id. at ¶ 8.
After receiving this information from the IDFG, the Jones filed with this Court, on July 10, 2001, a Notice that they intended to implement the IDFG suggestions and divert water from Otter Creek. In response to this Notice, IWP re-filed its motion for temporary restraining order.
The Court held a hearing on July 13, 2001, and issued a decision the same day, granting IWP's request. In that decision, the Court expressed concern that the Joneses had stated an intent to breach the Stipulation reached by the parties and approved by the Court. In addition, the Court found that IWP had a likely chance for success on the merits. For those reasons, the Court issued a temporary restraining order enjoining the Joneses from diverting any water in Otter Creek until a hearing could be held on IWP's motion for preliminary injunction.
On August 2, 2001, the parties filed a stipulation that IWP would withdraw its motion for preliminary injunction based on the representation by the Joneses that they would not divert any water from Otter Creek in 2001. The case then lay dormant until the Court sent out a notice that it intended to dismiss the matter for lack of prosecution. IWP responded by filing the motion for summary judgment that is now at issue.
IWP seeks a permanent injunction requiring the Joneses to install at the diversion (1) a head gate to monitor the flow below the diversion and ensure that bull trout can migrate past the diversion, and (2) a fish gate to prevent bull trout from being diverted into the irrigation ditch. IWP asserts that the diversion dewaters a portion of Otter Creek during the late summer breeding season, preventing bull trout from migrating to breeding areas. IWP also contends that the diversion diverts bull trout into the ditch, which is a hostile environment not conducive to spawning and reproductive success. To resolve these contentions, the Court must examine the facts in the record concerning the bull trout and its habitat in Otter Creek. However, before the Court can determine what facts are in the record, it must first resolve a challenge to some of the Declarations submitted by IWP.
MOTION IN LIMINE
The Joneses object to the Court relying on the expert opinions of Karen Thea and Stew Churchwell. Churchwell has not been offered as an expert, and the Court has not relied on any expert testimony from him. Thus, the Court will deny the motion as to Churchwell.
With regard to Thea, there is no question that she is qualified to render opinions about the suitable habitat for bull trout. She has a masters degree in Natural Science from the University of Idaho and has worked for the Fish and Wildlife for seven years conducting field evaluations of human activity on fish. She has studied the bull trout extensively.
The Joneses contend, however, that she has failed to conduct research on Otter Creek. Instead, she has visited Otter Creek and offered opinions on how the habitat in Otter Creek and the irrigation ditch would affect bull trout. This was precisely the type of expert testimony offered and accepted in Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1067-68 (9th Cir. 1996). In that case, experts offered opinions on whether a proposed logging project would harm the marbled murrelet. Those experts examined the habitat that was subject to the logging, and used their general knowledge of the marbled murrelet to determine if the project would "likely harm marbled murrelets." Id.
Thea offers the same type of expert opinions. Moreover, her methodology has been approved by three other experts in the field. See Declarations of Heberger, Espinosa, and Rhodes.
The Joneses complain that Thea has offered legal opinions concerning whether there has been a "taking" under § 9 of the ESA despite having no legal expertise. The Court has not relied on any of Thea's legal opinions; instead, the Court has relied only on her factual and scientific opinions.
The Joneses have raised other complaints about Thea that are intertwined with the merits of the dispute, and will be addressed in more detail below. The Court finds that Thea is qualified as an expert on the bull trout, and further finds that her testimony passes muster under Rule 702. For these reasons, the motion in limine will be denied.
FACTUAL BACKGROUND
1. Bull Trout
Bull trout are a species of salmonid fish found in Idaho and throughout the northwest. See Fish and Wildlife Service Final Rules at 63 FR 31647 (June 10, 1998) (hereinafter cited as FWS Final Rules). They can be either migratory or residential. Id. While residential bull trout complete their entire life cycle in the stream where they were born, migratory bull trout stay in their birth place just one to four years, and then move to lakes, rivers, or coastal areas. Id. at 31647.
By 1998, bull trout numbers had declined to the point where the Fish and Wildlife Service listed them as a "threatened" species under the ESA. Id. One of the primary reasons for the decline of the bull trout is the fragmentation of populations caused by migratory barriers. Id. at 31647, 31670. These migratory barriers include dams and diversions. Id. at p. 31670. Because of these barriers, "bull trout increasingly persist as small, isolated, resident populations instead of few, large connected subpopulations." Id These fragmented populations are at higher risk for low rates of population growth and extirpation. Id. Open migratory corridors improve spawning opportunities, strengthen the gene pool, and allow extirpated subpopulations to be reestablished by individuals from other subpopulations. Id. at 31670. Once a population becomes fragmented, however, it is prone to extirpation if spawning conditions are adversely affected and there are barriers to other bull trout from migrating in and reestablishing the population. Id. at p. 31650.
A migratory barrier especially affects bull trout because they have more specific habitat requirements than other salmonids. Id. at 31647. For spawning and rearing purposes, the bull trout need very cold water, gravel stream bottoms with low sedimentation, woody debris, and a complex habitat of pools and riffles. Id. at 31647-48. Bull trout typically spawn from August to November. Id. at 31648. Thus, a migratory barrier in the period of August and September that blocks access to spawning habitat could have serious consequences. Id. at 31650. 2. Otter Creek
Otter Creek begins in the mountains of the Challis-Salmon National Forest and empties into Panther Creek. About 4000 feet downstream from its headwaters, at the location of the diversion, Otter Creek is 3 feet wide and 4 inches deep. See BA at p. 9. By the time it reaches Panther Creek, Otter Creek has widened to 8 feet.
There is no historic stream flow data for Otter Creek. Instead, the record contains only a few scattered observations. On July 15, 2001, the stream flow just above the diversion was estimated to be 7.5 cfs. See Second Supplemental Declaration of Karen Thea at ¶ 15, p. 6. In August 1997, the stream flow on Otter Creek near its confluence with Panther Creek was 5.9 cfs. See BA at p. 7. While these observations occurred in different years, they show how the flow decreases significantly as the summer progresses. This flow reduction becomes especially apparent when it is recalled that "numerous springs and tributaries" increase Otter Creek's flow below the diversion, see BA at p. 8, and so a flow of 5.9 cfs at the confluence with Panther Creek in August means the flow up-stream at the diversion is much less. Verl Jones describes the flow reduction in the summer as significant in his Declaration: "Flows in Otter Creek vary tremendously, with very high flows in the later spring dropping off significantly as the summer progresses." See Second Declaration of Jones at ¶ 7A, p. 3.
Another observation was made by Forest Service personnel on August 3, 2000. They found on that date that the Joneses' diversion spanned the entire channel of Otter Creek, and was diverting about 75-80% of Otter Creek's flow. They observed that "Otter Creek is very small due to dewatering immediately downstream of the diversion. . . ." See Exhibit B to Declaration of Bruce Smith. Since Otter Creek is just three feet wide above the diversion, it is not surprising that it was "very small" below the diversion when 80% of its flow was being diverted in August.
3. Bull Trout in Otter Creek
Bull trout live and spawn in Otter Creek. See BA at p. 9. They have been found both above and below the diversion, and their spawning nests (known as redds) have been found below the diversion. Id. The bull trout in Otter Creek are migratory. See BA at p. 9. They move upstream to spawn in cooler waters, and downstream in search of food and deeper pools. See Declaration of Thea at ¶ 15, p. 6-7.
The Joneses argue that IWP failed to "offer any evidence or data showing whether bull trout in Otter Creek are resident or migratory." See Brief of Jones at p. 11. That is incorrect. The BA concludes that the bull trout in Otter Creek are migratory. See BA at p. 9.
In this case, a culvert at the confluence of Panther Creek and Otter Creek "acts as a complete upstream fish passage barrier." See BA at p. 7. While migratory bull trout are found in Panther Creek, see BA at p. 8, they will not be able to migrate into Otter Creek.
The BA establishes that the water temperature in Otter Creek in August, 1997, was 12.3°C, see BA at p. 7, which meets the general habitat requirements for bull trout. See FWS Final Rules at p. 31647 ("water temperatures above 15°C . . . is believed to limit bull trout distribution. . . ."). For spawning purposes, however, the bull trout needs temperatures from 5°C to 10°C. Id. 4. The Diversion
About 4000 feet below its headwaters, Otter Creek emerges from the woods, enters an open area, and then bends at a near right angle to return to the woods. At that bend, the Joneses have placed their diversion, constructed of rocks and tarps, to divert the water from Otter Creek into their irrigation ditch. See Appendix A to BA. The diversion is placed in the creek channel just beyond the bend. The irrigation ditch is lined up with the creek channel just prior to the bend, so that the water running downstream flows in a straight line from the creek channel into the irrigation ditch. See Exhibits to Declaration of Churchwell.
The Joneses place the diversion in Otter Creek at the start of the growing season (May or June) and take it out in September. See Declaration of Verl Jones at ¶ 7. pp. 3-4. Bull trout typically spawn from August to November. Id. at 31648. Thus, the diversion is in Otter Creek during the months of August and September when the bull trout are spawning. These types of diversions have been recognized by the Fish and Wildlife Service to be one of the causes of the elimination or blockage of migratory corridors for bull trout. FWS Final Rules at 31649. 5. Effects of the diversion on Otter Creeks' flows
The Court is most concerned with the effects of the diversion in August and September, when bull trout are spawning and need to be able to travel freely the full length of Otter Creek. At the same time, the flows in Otter Creek are very low. This raises the question whether the diversion blocks or hinders migration during the August/September time period.
Verl Jones states that he has never seen such blockage: "In all these years [41 years], I have also not observed any bull trout, or other fish for that matter, immediately above or below the diversion structure in a situation where they could not get up or down the creek." See Second Declaration of Jones at ¶ I, p. 5. While Verl Jones does not state specifically if he observed this during the August/September time period in a below-average water year, he does state that "there has always been water below my diversion because, as a practical matter, my diversion cannot stop all the water." See Amended Declaration of Jones at ¶ 9, p. 3.
Everyone agrees that some water seeps through the diversion; the question is whether it is enough for bull trout migration during August and September. The BA states that in a "below-average water year," the diversion will remove "most if not all available water" from Otter Creek. See BA at p. 14. Of course, the BA notes that it does not have historic flow data, and so is estimating what might happen to some degree. However, this is a forecast by experts, and there is no rebuttal expert testimony stating that in a below average water year, the flows just downstream from the diversion in August and September will be sufficient for spawning bull trout to migrate past the diversion.
Moreover, in the observation on August 3, 2000, discussed above, Forest Service personnel described Otter Creek as "very small due to dewatering downstream of the diversion." The Jones' expert, Michael Larkin, testified that Otter Creek is "de-watered for only a short section just below the diversion." See Affidavit of Larkin, at ¶ 5, p. 1. Verl Jones testified that he is working to reduce the threat of de-watering: "I am also working on a design to modify the diversion structure to ensure that the stream is not dewatered below my diversion and that the structure does not block fish movement up and down the creek." Id. at ¶ 10. P.3.
This threat of dewatering during the spawning season was enough for the BA to conclude that,
[t]he diversion of water from Otter Creek may fragment habitat and populations of bull trout and cutthroat trout. The greatest impact would be to bull trout. Typically bull trout migrate upstream to spawn during summer periods when adequate stream flows may not be available to reach or navigate the diversion structure. This would act to reduce the population through lost reproduction opportunities, restricting its range, and increasing population lost from stochastic events.Id. The Joneses did not submit any rebuttal expert testimony.
6. The irrigation ditch
The irrigation ditch takes water from the diversion on Otter Creek and runs it about a mile-and-a-half before dumping it in Morgan Creek. As explained above, the diversion is placed at a bend in Otter Creek so that the water runs straight from Otter Creek into the ditch.
The ditch is a dirt canal without any piping to efficiently carry the water. The ditch habitat is marked by no cover or shade from overhanging vegetation, or undercut banks, the lack of which allows the ditch water to heat up. Moreover, there is no woody debris, little if any pools and riffles, and a dirt bottom without gravel in places allowing sediment to get into the water. See Second Supplemental Declaration of Thea at ¶ 9, p. 4. Because of these deficiencies, Thea concludes that the ditch "is not suitable habitat for bull trout." See Declaration of Thea at ¶ 39, p. 17.
The Joneses do not take issue with these observations of Thea. Verl Jones did state that he cannot feel any temperature differential between the water in the ditch and the water in Otter Creek. See Second Declaration of Verl Jones at ¶ H, pp. 4-5. This does not, however, rebut Thea's testimony. Thea did not testify that she can feel a difference in temperature — rather, she testified that the bull trout can feel the difference. There is no expert testimony rebutting this opinion. In addition, the cover from overgrowth helps hide the fish from predators, and the Joneses do not allege that there is in fact cover from overgrowth along the ditch.
The FWS Final Rules state that bull trout need gravel bottoms with low sedimentation for breeding purposes, and require woody debris and a complex habitat of pools and riffles for "[a]ll life history stages." FWS Final Rules at p. 31648.
The Joneses submit no expert testimony rebutting these opinions of Thea. The Jones' own expert, Michael Larkin, concludes only that the habitat in the ditch "is not as good as compared to Otter Creek." See Affidavit of Larkin at ¶ 6, p. 1. Larkin offers nothing to rebut Thea's opinions.
Although Verl Jones states that he has never seen any bull trout in the ditch, see Second Declaration of Verl Jones at ¶ I, p. 5, the Jones do not seriously argue that bull trout are not being diverted into the ditch. The ditch is lined up with the channel of Otter Creek so that the water from Otter Creek flows straight into the ditch, and there is no protective screening to keep fish out of the ditch. When the diversion is in place, there is a high likelihood that some bull trout will be diverted into the ditch. Stew Churchwell, who lived in the area for many years, has seen a bull trout in the Jones's irrigation ditch. See Declaration of Churchwell at ¶ 18, p. 6.
The Jones' principal argument, made by Larkin, is that even if bull trout are diverted into the ditch, they will either retreat to Otter Creek or swim through to Morgan Creek. See Affidavit of Larkin at ¶ 8, p. 2. Thea observes, however, that the final section of the ditch, as it drops into Morgan Creek, is steep and rocky. See Second Supplemental Declaration of Thea at ¶ 19, p. 8. She concludes that there is a "high likelihood of injury and possible mortality to bull trout which are carried via the ditch into Morgan Creek. . . ." Id. The Jones offers no rebuttal to this expert testimony.
With regard to Larkin's assertion that bull trout that have been diverted into the ditch may return to Otter Creek, Thea assumes that to be true, but concludes that "[e]ven if the fish were eventually able to return to the stream, the resulting delay and impairment of spawning and reproductive success significantly interferes with the essential biological functions of bull trout." See Supplemental Declaration of Thea at ¶ 4, p. 2. Once again, the Joneses offer no expert rebuttal testimony on this issue.
ANALYSIS
1. Ripeness Mootness
The Joneses did not divert any water during the 2002 irrigation season, having accepted a $20,000 payment from the Forest Service for the lease of their water right for that time period. They are not now diverting water. While they will do so again beginning in the spring of 2003, by that time they may have reached agreement with the Forest Service to install a head gate and fish gate, the very remedy sought by IWP.
These circumstances raise questions whether this dispute is presently ripe for resolution, and whether it may be mooted by any agreement with the Forest Service. Although neither side has raised these issues, the ripeness and mootness requirements are jurisdictional and hence may be raised sua sponte by the Court. See Southern Pacific Transp. Co. v. City of Los Angeles, 922 F.2d 498, 502 (9th Cir. 1990).
An action is unripe when the issues are not sufficiently concrete for judicial resolution. See Western Oil Gas v. Sonoma County, 905 F.2d 1287, 1290 (9th Cir. 1990). An action is moot when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome. Id. The ripeness inquiry asks "whether there yet is any need for the court to act," while the mootness inquiry asks "whether there is anything left for the court to do." Id. A controversy is not moot if it is capable of reoccurring. Id. Even a defendant's voluntary cessation of wrongdoing does not render a case moot if there is no assurance that the alleged wrongdoing would not recur. Id.
Turning first to the mootness inquiry, this issue turns on whether the Court should await the results of the Forest Service negotiations. Because such an agreement could be modified at any time by the parties, it would not truly moot the controversy under the ESA. Moreover, even if the Joneses cease their alleged wrongdoing now, and comply with an agreement with the Forest Service for a time, they may revert to their past practices at any time. That this is likely is evidenced by their conduct in this litigation, discussed above. For these reasons, the Court finds that the doctrine of mootness does not deprive the Court of jurisdiction.
The issue regarding ripeness is intertwined with the merits of the case. A central issue on the merits is whether threats of future harm are actionable under the ESA. That issue intertwines with the ripeness inquiry into whether a threat of future harm presents a sufficiently ripe controversy for subject matter jurisdiction purposes. While the Court may not assume subject matter jurisdiction to reach the merits, Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998), the Court may proceed to the merits where the jurisdictional inquiry is intertwined with the merits, as it is here. See Ventura Packers Inc. v. F/V Jeanine Kathleen, 305 F.3d 913 (9th Cir. 2002).
2. Standing
The Joneses claim that IWP lacks standing to pursue this case. The Court disagrees. The Declaration of Stew Churchwell establishes the necessary standing requirements. Churchwell is a member of both plaintiff organizations, has lived in the area at issue, and uses the area for recreational, aesthetic, and other purposes. IWP therefore has standing. See Friends of the Earth v. Laidlaw, 528 U.S. 167 (2000).
3. Standard for Summary Judgment
The party moving for summary judgment has the burden of proving the absence of any genuine issue of material fact that would allow a judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The evidence must be viewed in the light most favorable to the non-moving party, id. at 255, and the Court must not make credibility determinations. Id. The trial judge must determine whether the evidence presented is such that a jury applying the proper evidentiary standard could reasonably find for either the plaintiff or the defendant. Id.
Once the moving party demonstrates the absence of a genuine issue of material fact, the burden shifts to the non-moving party to produce evidence sufficient to support a jury verdict in her favor. Id. at 256-57. In meeting this burden, the non-moving party must go beyond the pleadings and show "by her affidavits, or by the depositions, answers to interrogatories, or admissions on file" that a genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). This evidence must be admissible because "only admissible evidence may be considered in ruling on a motion for summary judgment." Beyene v. Coleman Sec, Services, Inc., 854 F.2d 1179, 1182 (9th Cir. 1988).
4. Standard for Obtaining A Permanent Injunction Under § 9 of the ESA
Section 9 of the ESA makes it unlawful for any person to "take" bull trout. See 16 U.S.C. § 1538(a)(1). The word "take" is defined to mean "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." See 16 U.S.C. § 1532(19). The word "harm" is defined to mean "an act which actually kills or injures wildlife." See 50 C.F.R. § 17.3. Harm includes "habitat modification that is reasonably certain to injure an endangered species by impairing their essential behavioral patterns." Defenders of Wildlife v. Bernal, 204 F.3d 920, 925 (9th Cir. 2000). "[A] habitat modification which significantly impairs the breeding and sheltering of a protected species amounts to `harm' under the ESA." Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1067 (9th Cir. 1996).
5. Is a threat a take?
There is no evidence that bull trout have died or been injured in the Jones' irrigation ditch. Likewise, nobody has observed bull trout being unable to pass the diversion, and there are no studies showing that Otter Creek bull trout have reproductive problems associated with migration barriers. This case is not about past, or even present, harms. It is solely about threats of future harm.
While the Joneses argue that threats cannot constitute a taking under § 9, the Ninth Circuit has "repeatedly held that an imminent threat of future harm is sufficient for the issuance of an injunction under the ESA," Marbled Murrelet, 83 F.3d at 1064. In that case, the Circuit affirmed the issuance of a permanent injunction under the ESA on the ground that a logging proposal would "likely" harm marbled murrelets by impairing their breeding. Id. at 1067. The Circuit reaffirmed this interpretation in Bernal, holding that a permanent injunction was warranted under § 9 of the ESA if there was a "reasonably certain threat of imminent harm to a protected species. . . ." Bernal, 204 F.3d at 925.
Thus, IWP is entitled to a permanent injunction if it shows that the Jones' diversion poses a reasonably certain threat of imminent harm to the bull trout. Because this is a summary judgment proceeding, IWP cannot rely upon any disputed facts to establish its threat. It must instead rely on facts that are either undisputed or unrebutted. The Court will now examine whether such facts exist in the record.
6. Does the diversion pose a reasonably certain threat of imminent harm to the bull trout?
IWP contends that the diversion poses two threats: (1) it prevents migration up and down Otter Creek, and (2) it diverts bull trout into the irrigation ditch. The Court turns to the former allegation first.
7. Does the diversion pose a threat to migration of spawning bull trout?
The following facts are either undisputed, or established by IWP's expert testimony and not rebutted by any expert testimony proffered by the Joneses: (1) bull trout migrate upstream in Otter Creek to spawn between August and November; (2) the diversion is in place during the spawning months of August and September; (3) the Jones have a water right entitling them to remove 4 cfs from Otter Creek; (4) the flows on Otter Creek diminish substantially in August and September; (5) the biggest reduction in flows occurs just below the diversion; (6) the BA states that in a below-average water year, the diversion will remove "most" of the water in Otter Creek; (7) on August 3, 2000, the diversion was removing about 75-80% of Otter Creeks' flow, rendering Otter Creek "very small due to dewatering immediately downstream of the diversion;" (8) the BA concludes that the diversion may fragment bull trout populations and reduce the population because in some years the flow may not be sufficient below the diversion for bull trout to migrate upstream to spawn; (9) bull trout from Panther Creek cannot migrate into, and replenish depleted populations in, Otter Creek; and (10) Karen Thea, a wildlife biologist experienced in studying the bull trout in this region, concludes that the diversion is a migration barrier that "has the risk of reducing the population through the loss of future eggs. . . ."
The gist of these facts is that in a below-average water year, spawning bull trout may not be able to migrate upstream past the diversion, and reduction in population could result. In other words, the diversion is a threat to the bull trout. The Joneses have submitted no expert testimony that spawning bull trout should be able to migrate past the diversion in a below-average water year. The Joneses also submit no evidence that they operate the diversion to ensure adequate flows for spawning bull trout in August and September to migrate past the diversion.
As discussed above, Verl Jones observes that he has never seen a bull trout "in a situation where they could not get up or down the creek," but he does not mention whether the flow below his diversion in a low average water year is sufficient for spawning bull trout to migrate upstream. Indeed, Jones could not testify to this because he is not an expert and does not know what flows spawning bull trout require. IWP has presented two expert opinions, in the form of the BA and Thea's Declaration, and that evidence is unrebutted.
These facts establish that the Jones' diversion poses a threat of harm to bull trout because it might prevent spawning bull trout from being able to migrate upstream in a below-average water year. This is not the only threat alleged by IWP, however, and the Court will now turn to allegations that the diversion threatens bull trout by diverting them into the irrigation ditch.
8. Does the diversion threaten bull trout by diverting them into the irrigation ditch?
The following facts are either undisputed or established by expert testimony and not rebutted by expert testimony: (1) the diversion diverts bull trout into the irrigation ditch; (2) the ditch is not a suitable habitat for bull trout; (3) bull trout that proceed through the ditch to Morgan Creek are exposed to a high likelihood of injury or possible mortality due to the steep, rocky drop into Morgan Creek; (5) bull trout that are diverted into Morgan Creek cannot migrate back into Otter Creek; (4) bull trout that are diverted into the ditch and return to Otter Creek will suffer an impairment of spawning and reproductive success.
These facts establish that the diversion and irrigation ditch pose a threat of harm to bull trout in that the diversion diverts bull trout into an unsuitable habitat, exposing them to either injury (if they swim through to Morgan Creek) or an impairment of reproductive success (if they return to Otter Creek). 9. Is the threat "reasonably certain" and "imminent"?
Showing a threat is not enough to prevail under § 9 of the ESA. IWP must also show that the threat is "reasonably certain" and "imminent." See Bernal, 204 F.3d at 925. That is, IWP's experts must be forecasting, not speculating.
The speculation accusation has been leveled at IWP experts by an expert hired by the Joneses, Dr. Gregory Schildwachter, a biologist working in the Governor's Office of Species Conservation. He points out that in published papers, IWP's experts have made hypotheses, and then conducted studies to test the strength of those hypotheses, while in this case they simply made hypotheses without conducting any follow-up studies. See Second Declaration of Dr. Schildwachter.
For example a population study could reveal whether bull trout numbers are increasing or decreasing in Otter Creek, and a water flow study could determine precisely how much water is left just below the diversion in August and September. If bull trout have been in Otter Creek for forty years, living alongside the diversion, and their numbers are increasing, the diversion would certainly look less threatening. Similarly, if flow studies showed that even in below-average water years there was enough water below the diversion for spawning bull trout to migrate past the diversion, the diversion would appear benign.
Such studies, however, along with the methodology of Dr. Schildwachter, are designed to seek certainty, and could take years to complete. That is not required by the ESA: "Future harm to a species need not be shown with certainty before a permanent injunction may issue, but mere speculation will not suffice." See Marbled Murrelet v. Pacific Lumber Company, 880 F. Supp. 1343, 1367 (9th Cir. 1995), affirmed, 83 F.3d 1060 (9th Cir. 1996).
The Court is convinced that IWP's experts are not speculating. The BA and the opinions of Thea are based "the best available science and commercial data available." See, e.g., 50 C.F.R. § 402.14(d) (§ 7 cases); Arizona Cattle Growers v. USFWS, 273 F.3d 1229, 1237 (9th Cir. 2001) (applying § 7 standards to § 9 case). For these reasons, the Court cannot accept the Jones challenges to IWP's experts.
10. Conclusion
In conclusion, the diversion significantly modifies the habitat of the bull trout by reducing flows below the diversion and diverting bull trout into the irrigation ditch. This significant modification of habitat poses two threats to the bull trout. First, in a below-average water year, the diversion is likely to reduce flows in Otter Creek just below the diversion to the point where spawning bull trout could not migrate past the diversion in August and September. Second, the diversion diverts bull trout into the unsuitable habitat of the irrigation ditch, exposing them to injury should they either swim through to Morgan Creek or return to Otter Creek.
These two threats combine to create a reasonably certain threat of imminent harm to the bull trout under § 9 of the ESA. Thus, IWP is entitled to the issuance of a permanent injunction. The injunction will enjoin the Joneses from operating the diversion without (1) a head gate to monitor flows on Otter Creek to ensure that bull trout can migrate past the diversion, and (2) a fish gate to prevent bull trout from being diverted into the irrigation ditch.
Because this type of threat is actionable under the ESA, and exists in this case, the Court finds this matter ripe for subject matter jurisdictional purposes.
The Court will enter a separate Judgment as required by Rule 58.
At oral argument, defense counsel made an oral motion to dismiss or for summary judgment. The Court will deny that motion.