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First Circuit Holds That Plaintiffs Must Demonstrate Irreparable Harm

for Injunctive Relief in Endangered Species Act Cases


November 23, 2010

by Joseph M. Carpenter  jcarpenter@somachlaw.com

FOLLOWED BY:

Proposition 26 May Imperil Implementation of California’s

Landmark Greenhouse Gas Reduction Law


On October 20, 2010, the First Circuit Court of Appeals upheld the district court’s determination that plaintiffs were required (and failed) to show irreparable harm for an injunction in an Endangered Species Act (ESA) case.  Animal Welfare Inst. v. Martin, 2010 U.S. App. LEXIS 21611 (1st Cir. 2010) (Animal Welfare Inst.).  In so holding, the court concluded that Congress did not eliminate the traditional test for injunctions in ESA cases.

Endangered Species Act

An “endangered” species is “any species which is in danger of extinction throughout all or a significant portion of its range.”  16 U.S.C. § 1532(6).  A “threatened” species is “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.”  16 U.S.C. § 1532(20).  

The ESA makes it unlawful to “take” a member of an endangered or threatened species.  16 U.S.C. § 1538(a)(1)(B); 50 C.F.R. § 17.31(a).  The term “take” means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect.”  16 U.S.C. § 1532(19).  The phrase “incidental taking” means any taking otherwise prohibited, if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.  50 C.F.R. § 17.3.

Background

Two animal rights groups, Animal Welfare Institute and Wildlife Institute of Maine (collectively AWI), brought an ESA citizen suit against Maine state officials seeking to enjoin them from allowing the use of foothold traps, which are designed to spring shut on an animal’s leg or foot, holding it in place until the trapper returns.  AWI argued that this relief was necessary to prevent an unlawful “take” of the Canada lynx (lynx), a wild cat that is listed as a “threatened” species throughout its United States range, including Maine.  

Maine prohibits the trapping of lynx, but allows the regulated trapping of other animals. Foothold traps are typically used to trap coyote and fox.  While there are no known instances of lynx deaths caused by foothold traps, a small number of lynx are trapped by foothold traps and released each year in Maine.  

As the result of prior litigation, Maine promulgated regulations in 2007 and 2008 to protect the lynx.  The regulations limited the size of foothold traps in lynx territory and the use of Conibear traps, which are designed to spring shut on an animal’s body, killing it.  The regulations also require trappers to report any incidental lynx takings, which allows the Maine Department of Inland Fisheries and Wildlife (IF&W) to examine the captured lynx and rehabilitate any injured lynx before releasing them.

Notwithstanding these new regulations, AWI filed the instant action, alleging that Maine had not done enough to protect the lynx.  AWI challenged the use of both Conibear traps and foothold traps.  With respect to foothold traps, AWI alleged that, by allowing trappers to use such traps to catch other species, Maine violated the ESA because some lynx are incidentally caught in these traps.  AWI argued that the court was required to issue an injunction banning all foothold traps.

Permanent Injunction Standard

In order to obtain a permanent injunction, plaintiffs must ordinarily satisfy a four-factor test.  “A plaintiff must demonstrate:  (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.”  Animal Welfare Inst., 2010 U.S. App. LEXIS 21611, at *15-16, quoting Monsanto v. Geertson Seed Farms, 130 S. Ct. 2743, 2756 (2010).

In cases involving the ESA, Congress removed from the courts their traditional equitable discretion in injunction proceedings of balancing the parties’ competing interests.  As the Supreme Court has noted, “Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities.”  TVA v. Hill, 437 U.S. 153, 194 (1978) (Hill). Accordingly, courts “may not use equity’s scales to strike a different balance.”  Sierra Club v. Marsh, 816 F.2d 1376, 1383 (9th Cir. 1987); see also Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1073 (9th Cir. 1996) (“Congress has determined that under the ESA the balance of hardships always tips sharply in favor of endangered or threatened species.”).

District Court Decision

The district court rejected AWI’s argument that injunctive relief must issue, even absent a showing of irreparable harm, upon a showing that incidental takings result from Maine’s decision to allow foothold traps.  The court denied preliminary injunctive relief as to foothold traps, but set the matter for a hearing on evidence as to the actual risk of incidental trapping of lynx in foothold traps and the actual consequences to the lynx of such trapping.

As to Conibear traps, the district court granted preliminary injunctive relief, directing IF&W to immediately promulgate regulations to prevent further takes caused by these “killer-type” traps.  The court found irreparable harm in the death of a single lynx that had been killed by a Conibear trap.  The court concluded that even though AWI had not established that the death of one lynx threatens the species as a whole, it had sufficiently demonstrated that the current regulations were inadequate and that it was predictable that other lynx would suffer irreparable harm if the regulations were not amended.

Following a six-day hearing on both types of traps, the court found that AWI had not shown it was likely that lynx would be taken in Conibear traps under the new regulations promulgated by Maine as a result of the preliminary injunction.  The district court also found that AWI did not prove lynx suffer serious physical injury from incidental takes in foothold traps.  As a consequence, the court concluded that AWI had failed to demonstrate irreparable harm was likely to occur absent an injunction.  The court noted that, even assuming AWI had shown that some lynx suffer “debilitating” injuries from takes, AWI certainly had not established that these injuries threatened the species.  The court determined that absent a showing lynx deaths were likely, and that these deaths would impact the species, it was not an abuse of discretion to refuse to issue an injunction.

The Appellate Court Decision

On appeal, the First Circuit assumed that the incidental taking of lynx in foothold traps constituted a violation of the ESA.  The court then went on to affirm the district court’s denial of the injunction requested by AWI.  In doing so, the court endorsed the district court’s “nuanced” approach to determining the propriety of injunctive relief, finding that the district court properly rejected the two opposite per se rules advanced by the opposing parties; namely, that harm to a single animal constitutes irreparable harm, or that only a threat to the entire species constitutes irreparable harm.  The court explained that the injunctive relief analysis is a fact-sensitive inquiry, noting that the death of a single animal may call for an injunction in some circumstances, while in others the death of one member is an isolated event that would not call for judicial action because it has only a negligible impact on the species as a whole.

In affirming the denial of injunctive relief, the court rejected AWI’s argument that Congress, in enacting the ESA, has so displaced the traditional factors used by courts in deciding on injunctive relief that the district court was required to issue an injunction on finding there was a “taking” of a single member of the lynx.  The court concluded that, contrary to AWI’s contention, the finding of an ongoing violation of the ESA does not automatically obligate a court to issue an injunction with terms stringent enough to end the violation.

In reaching this conclusion, the court stated that AWI’s arguments were based on a mistaken reading of cases beginning with Hill, 437 U.S. 153, in which the Supreme Court found that only a permanent injunction against bringing a dam online would suffice to remedy the Tennessee Valley Authority’s violation of the ESA.  The court explained that the drastic result in Hill was based on the strong and undisputed showing of irreparable harm that would occur absent an injunction; namely, that an entire species would become extinct.  The court stated that because irreparable harm was essentially conceded, the injunctive relief inquiry focused on the remaining elements, including the balancing of the equities and hardships of the case.  In Hill, the Supreme Court ultimately concluded that, under the circumstances, congressional intent in the ESA foreclosed it from striking a balance of equities in favor of the dam because equity clearly favored the endangered species.

The court found the present circumstances to be distinguishable from Hill.  AWI, for instance, did not prove that any single lynx has suffered serious physical injury or death from a foothold trap.  In fact, the record indicated that the ESA violation had not caused the death of any lynx, let alone did it pose the ultimate danger of extinction to which the Supreme Court in Hill responded.  As such, injunctive relief banning all foothold traps was not warranted.  

In contrast, the court concluded that the district court’s injunction requiring Maine to amend its Conibear trap regulations was proper, because these traps posed a mortal risk to at least some lynx.  The court determined that the district court engaged in the fact-sensitive analysis required by law, and properly applied the principle that the death of a single animal may call for an injunction in some cases, while in others the death of one animal is an isolated event that would not call for judicial action because it only has a negligible impact on the species as a whole.  

In concluding that the district court properly required AWI to show irreparable harm for injunctive relief, the court stated that the First Circuit has consistently applied the traditional test for preliminary injunctions in ESA cases, without modifying the irreparable harm requirement.  The court explained that rather than supplant the need for proof on the irreparable harm requirement as AWI seeks, the First Circuit has incorporated Congress’s prioritization of listed species’ interests into the third and fourth prongs of the injunctive relief analysis, modifying those factors where appropriate to “tip[] heavily in favor of protected species.”  

The court also rejected several other arguments made by AWI, including AWI’s contention that an unlawful “take” of a threatened species results in per se irreparable harm.  The court concluded that this argument fails because it mistakes the question of what violates the statute with the question of the appropriate remedy for a violation of the statute.  In other words, contrary to AWI’s contention, a violation of the ESA does not automatically constitute irreparable harm.  In addition, the court rejected AWI’s argument that it was improper for the district court to inquire into species-level harm during the irreparable harm inquiry.  The court found that nothing in the statute precludes a district court from considering facts regarding species-level harm.

Conclusion and Implications

This decision clarifies that a violation of the ESA does not automatically amount to irreparable harm justifying injunctive relief.  That is, courts are not mechanically obligated to grant an injunction for every violation of the ESA.  Rather, courts must evaluate the traditional four-factor test for injunctive relief to determine whether an injunction is an appropriate remedy under the circumstances of the case.  This means that an injunction will not issue, even if there is an ESA violation, unless plaintiff demonstrates irreparable harm.  In order for plaintiffs to obtain an injunction, it is incumbent upon them to not only show a violation of the ESA but to also show irreparable harm.  For a permanent injunction, this showing requires evidence of actual irreparable harm, while a preliminary injunction requires a showing that irreparable injury is likely in the absence of an injunction.  

Although the jurisprudence on the issue of irreparable harm in the context of ESA cases lacks clarity, irreparable harm is generally characterized as significant harm to the overall population of the species.  Pac. Coast Fed’n of Fishermen’s Ass’ns v. Gutierrez, 606 F.Supp.2d 1195, 1210 (E.D. Cal. 2008) (citing Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 422 F.3d 782 (9th Cir. 2005)).  In other words, to obtain an injunction plaintiffs must show that the ESA violation has a considerable or substantial impact on the species as a whole.  Absent such a showing, an injunction is not the proper remedy for an ESA violation.

For further information on Animal Welfare Inst. v. Martin, 2010 U.S. App. LEXIS 21611 (1st Cir. 2010), please contact Joseph M. Carpenter at jcarpenter@somachlaw.com.

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only.  This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice.  In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.
  

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Proposition 26 May Imperil Implementation of California’s

Landmark Greenhouse Gas Reduction Law

November 23, 2010

by Michael E. Vergara and Adam D. Link
mvergara@somachlaw.com


When Californians voted to approve Proposition 26 this November, the result may effectively gut the implementation scheme for AB 32, California’s landmark greenhouse gas reduction law for which implementing regulations are now being considered.  Somewhat ironically, AB 32 may be affected despite the fact that voters defeated Proposition 23, a more direct challenge to the implementation of the AB 32.  Though voters defeated Proposition 23, the passage of Proposition 26 could be equally detrimental to implementation of AB 32 because the cap and trade program proposed by the California Air Resources Control Board (CARB), the implementing agency for AB 32, is predicated on the collection of fees from industries that produce and emit greenhouse gases.  Proposition 26 restricts the ability of agencies to assess a number of fees after January 1, 2010, including regulatory fees that benefit the public broadly.  While the assessments contemplated by CARB may or may not fall into that category because the authorizing legislation for AB 32 was passed in 2006, before the effective date of Proposition 26, it is unclear what affect, if any, the new restrictions will have on assessment of fees in support of AB 32.

Background

Proposition 26, the Supermajority Vote to Pass New Taxes and Fees Act, was approved by the voters on November 2, 2010.  It expands the definition of taxes and tax increases so that a number of proposals that formerly would have required only a majority vote will now require approval by two-thirds of the Legislature or the local electorate.  It is an initiative specifically designed to address the government’s increasing use of fees, particularly regulatory fees, which have been popular in recent years and have been used to raise revenue with a mere majority vote.  In fact, in the analysis of Proposition 26 prepared by the Secretary of State’s office, the following statement appears:

 
Generally, the types of fees and charges that would become taxes under the measure are ones that government imposes to address health, environmental, or other societal or economic concerns.  Figure 3 provides examples of some regulatory fees that could be considered taxes, in part or in whole, under the measure.  This is because these fees pay for many services that benefit the public broadly, rather than providing services directly to the fee payer.  The state currently uses these types of regulatory fees to pay for most of its environmental programs.  (http://www.voterguide.sos.ca.gov/propositions/26/analysis.htm.)
 

Proposition 26 is the outgrowth of a whole line of anti-tax initiatives dating back to Proposition 13 passed in 1978.  These initiatives, including Proposition 26, constitute repeated attempts to constrain the state’s ability to impose new and increased taxes in light of judicially and legislatively created loopholes created to accomplish just the opposite.

AB 32, the Global Warming Solutions Act of 2006, is the landmark greenhouse gas law designed to reduce greenhouse gas emissions in California by the year 2020.  The Legislature passed AB 32 in 2006, and the bill was signed by Governor Schwarzenegger later that year.  Among other things, AB 32 requires the identification and development of mechanisms to reach specified greenhouse gas reduction limits by the year 2020.  The agency responsible for the tasks outline in AB 32 is CARB, part of the California Environmental Protection Agency (CalEPA).  CARB’s stated mission is to promote and protect public health, welfare and ecological resources through the effective and efficient reduction of air pollutants while recognizing and considering the effects on the economy of the state.  (http://www.arb.ca.gov/html/mission.htm.)  Under AB 32, CARB is responsible for undertaking and implementing the regulations and mechanisms that will achieve the mandated greenhouse gas reductions.

Analysis

As part of the AB 32 effort to reduce greenhouse gases, the legislation directed CARB to adopt a scoping plan indicating how emission reductions will be achieved from significant sources of greenhouse gases using various regulations, market mechanisms and other actions.  This plan was approved by CARB in 2008, and provides an outline for actions to reduce greenhouse gases in the coming years.

As noted by CARB itself, some form of regulatory or administrative fee is necessary to carry out the goals of AB 32 because no dedicated funding source exists for implementation of the law.  Instead, AB 32 authorizes CARB to adopt regulations setting a schedule of fees to be paid by the sources of greenhouse gas emissions, the collection of which will support the administration costs of implementing the program.  Adopted regulations already require mandatory reporting of greenhouse gas emissions from the largest industrial sources (17 Cal. Code Regs., § 95100 et seq.), but CARB added to them by adopting the Cost of Implementation Fee Regulation in September of 2009, which became effective in July of 2010 (17 Cal. Code Regs., § 95200 et seq.). 

In addition to the fees adopted earlier this year, the most recent regulatory effort has been the rulemaking process for the cap and trade program.  On October 29, 2010, CARB issued draft rules that describe the implementation mechanism for the AB 32 cap and trade program.  The draft regulations contain preliminary regulatory language on the cap and trade system, including the process for compliance and overall structure of the program.  It also contains more narrative text describing key concepts and issues that should be addressed when CARB issues proposed regulatory language in Spring 2011.

In an attempt to close the regulatory fee loophole created by the Legislature and sanctioned by the courts, Proposition 26 gives a broad definition to taxes, and subjects most of what would have previously been considered “fees” to the two-thirds voting requirements contained in Proposition 13.  Under Proposition 26, tax means any levy, charge, or exaction of any kind imposed by the State with certain specified exceptions.  Unless a new revenue generation proposal falls under one of these specified exceptions, it will be subject to the requirements of Proposition 26.  Because of this change, many charges that are now considered “fees” will require a two-thirds vote to impose or increase, including charges that provide a broad public benefit.  In addition, the Legislative Analyst’s Office states that under Proposition 26 some business assessments could be considered taxes because they do not provide a direct and distinct service to the business owner, but rather a benefit to the public broadly.  (http://www.voterguide.sas.ca.gov/proposition/26/analysis.htm.)

The logical connection to AB 32 is that a cap and trade system by its very nature requires the government to extract revenue from polluters emitting greenhouse gases into the atmosphere.  These regulatory fees, administrative fees, or business assessments, however they are ultimately characterized, are designed to provide a broad public benefit associated with reduction in greenhouse gases in the state.  As such, it appears that the very fees contemplated by AB 32 and the CARB implementation program are those that are now covered by Proposition 26.

However, supporters of the cap and trade system, including CARB, have noted that the authorizing legislation was passed in 2006.  As noted above, Proposition 26 applies both prospectively and retroactively to any state charges created or increased between January 1 and November 2, 2010.  Statutes enacted prior to that date remain, in theory, unaffected by the new restrictions.  According to CARB, even though implementation of the cap and trade program and other elements of AB 32 are ongoing, none of their actions will require changes in the underlying statute adopted in 2006.  Thus, according to CARB, Proposition 26 should have no impact on fees assessed pursuant to that legislation, including implementation of administrative fees that are subsequently adopted.

While there is some merit to the argument that fees adopted under the existing regulations may remain unaffected by Proposition 26, it is likely that CARB will encounter several difficulties relating to assessing additional fees in the future.  First, because of the broad definition given to the term “tax” within Proposition 26, elements of the cap and trade permitting regime under the proposed regulations may be construed as a tax, and therefore subject to the requirements of Proposition 26.  Much of the merit of this contention depends on the precise language and content of the final regulations promulgated by CARB.  

Second, there will inevitably be supporting legislation for AB 32 that seeks to provide needed revenue.  Any such legislation passed after January 1, 2010, however, will need to be approved by a super-majority in compliance with Proposition 26.  This will be a difficult hurdle.

Conclusions and Implications

As the CARB cap and trade scheme and related actions transition from the planning stage to actual implementation, the funding requirements for the program will grow substantially.  As a result of increased funding needs resulting from the shift to implementation and enforcement activities, the issues related to assessments under the program will become more prominent, and likely more contentious.  Although CARB has taken the position that Proposition 26 will not have an impact on its ability to assess fees as part of the cap and trade program, it is inevitable that this and various other fees assessed under the new program will be challenged in court.  The result of this future litigation will have a significant impact not just on the emission reduction goals of AB 32, but the efforts of agencies throughout the state to continue to assess fees in a post-Proposition 26 era.

For additional information on this or any related topic, contact Adam Link at alink@somachlaw.com or Michael Vergara at mvergara@somachlaw.com.

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only.  This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice.  In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn. 

 

 


Proposition 26 May Imperil Implementation of California’s Landmark Greenhouse Gas Reduction Law
By Michael E. Vergara and Adam D. Link

When Californians voted to approve Proposition 26 this November, the result may effectively gut the implementation scheme for AB 32, California’s landmark greenhouse gas reduction law for which implementing regulations are now being considered. Somewhat ironically, AB 32 may be affected despite the fact that voters defeated Proposition 23, a more direct challenge to the implementation of the AB 32. Though voters defeated Proposition 23, the passage of Proposition 26 could be equally detrimental to implementation of AB 32 because the cap and trade program proposed by the California Air Resources Control Board (CARB), the implementing agency for AB 32, is predicated on the collection of fees from industries that produce and emit greenhouse gases. Proposition 26 restricts the ability of agencies to assess a number of fees after January 1, 2010, including regulatory fees that benefit the public broadly. While the assessments contemplated by CARB may or may not fall into that category because the authorizing legislation for AB 32 was passed in 2006, before the effective date of Proposition 26, it is unclear what affect, if any, the new restrictions will have on assessment of fees in support of AB 32.

 
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