F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
FEB 20 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
GREATER YELLOWSTONE COALITION;
JACKSON HOLE CONSERVATION
ALLIANCE,
Plaintiffs - Appellants,
and
SNAKE RIVER FUND,
Plaintiff - Intervenor,
No. 02-8087
v.
ROBERT B. FLOWERS, Commander and
Chief of Engineers, United States Army
Corps of Engineeers, in his official
capacity; KURT F. UBBELOHDE,
District-Engineer of Omaha District,
United States Army Corps of Engineers, in
his official capacity; CANYON CLUB
INC., a Wyoming corporation,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 02-CV-1036-D)
Timothy J. Preso (Douglas L. Honnold on the briefs), Bozeman, Montana, for the
Plaintiffs-Appellants.
Aaron P. Avila (Gary M. Henningsen and Stanley E. Tracey, U.S. Army Corps of
Engineers, Omaha, Nebraska; Matthew H. Mead, United States Attorney; Thomas
L. Sansonetti, Assistant Attorney General; Carol A. Statkus, Assistant United
States Attorney; Jon Lipshultz and Ellen Durkee, Attorneys, United States
Department of Justice, Environmental & Natural Resources Division with him on
the brief), United States Department of Justice, Environmental & Natural
Resources Division, Washington, DC, for the Defendants-Appellees.
Richard W. Walden (Franklin J. Falen and Marc R. Stimpert with him on the
brief), Budd-Falen Law Offices, P.C., Cheyenne, Wyoming, for the Defendant-
Appellee Canyon Club, Inc.
Before SEYMOUR, HENRY and LUCERO, Circuit Judges.
LUCERO, Circuit Judge.
This case involves a proposal to construct an eighteen-hole golf course and
residential development along the Snake River in Wyoming, an area that provides
important nesting and foraging habitat for the bald eagle, a threatened species.
Two environmental groups, the Greater Yellowstone Coalition and the Jackson
Hole Conservation Alliance (collectively, the “plaintiffs”), challenge the Army
Corps of Engineers’ (“Corps’”) issuance of a permit under section 404 of the
Clean Water Act (“CWA”), 33 U.S.C. § 1344, to Canyon Club, Inc. (“Canyon
Club”) allowing development of the project. Plaintiffs seek a preliminary
injunction to halt the proposed development, pending resolution of its challenge
to the issuance of the permit under the CWA and the National Environmental
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Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. Plaintiffs claim that the project
will cause irreparable harm to three bald eagle nesting territories. Finding no
irreparable harm and concluding that the plaintiffs were unlikely to succeed on
the merits, the district court denied the motion for a preliminary injunction. We
exercise jurisdiction pursuant to 28 U.S.C. § 1292(a)(1) and reverse.
I
Richard Edgcomb, the president and general manager of Canyon Club,
owns a parcel of land adjacent to the Snake River in Wyoming known as the River
Bend Ranch (“Ranch”). Edgcomb sold a portion of the Ranch to the Canyon Club
for the purpose of building a golf course and residential development. According
to Edgcomb and the Canyon Club, the purpose of building the golf course was to
provide additional income so that the remainder of the Ranch could remain viable
as a ranching operation; 1 Edgcomb continues to own as Ranch property 544 acres
adjacent to the Canyon Club property to the north and 125 acres some distance
1
Edgcomb is not a party in the instant case, and there is no record
evidence of a legal obligation tying the proceeds of the sale of a portion of the
Ranch to the future operation of the remaining portion of the Ranch. Moreover,
because the question of whether supplementing operations on the remaining
Ranch with income from the Canyon Club is a proper purpose of the project under
the pertinent Acts bears on the merits analysis discussed in Part III of the opinion,
we do not resolve or further address the question.
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from the Canyon Club parcel to the south. 2 The Canyon Club parcel is bounded
on the west by the Snake River and on the east and south by national forest land.
Three bald eagle nesting territories are in the vicinity of the Canyon Club
parcel: the Martin Creek nest, the Dog Creek nest, and the Cabin Creek nest. 3
The Martin Creek nest, which has been inactive in recent years, lies to the west of
the property, 230 feet from one of the proposed golf greens. The Dog Creek nest
is located near the river to the northwest of the Canyon Club development,
approximately 1,000 feet from the tee box of one of the proposed golf holes. This
nest has been very productive, having produced at least one fledgling per year
since 1992. The Cabin Creek nest is situated to the south of the project area,
1,475 feet from one of the proposed tee boxes, with an alternate nesting site very
close to the development. Cabin Creek is the most productive nest in the Greater
Yellowstone ecosystem, having produced eleven fledglings between 1992 and
2002.
In March 2001, Canyon Club applied to the Corps for a permit to build an
eighteen-hole golf course and fifty-four home residential development on a 286-
acre parcel of land originally part of the Ranch (the “March proposal”). Congress
A strip of national forest land separates the Canyon Club parcel from the
2
southern 125 acres of Ranch property.
There is a fourth nest, the Elbow nest, approximately 2.8 miles from the
3
proposed development. Plaintiffs do not allege that this nest will be harmed by
the proposed development.
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requires developers to obtain a section 404 permit from the Corps “for the
discharge of dredged or fill material into . . . navigable waters,” 33 U.S.C.
§ 1344(a). This project required the dredging and filling of waters under the
Corps’ jurisdiction, including the construction of twenty-three bendway weirs
(river-bank stabilizing structures) to protect the golf course holes along the banks
of the Snake River. Two of the proposed golf holes were to be built on a gravel
peninsula extending into the river. When the project met with criticism from
various state and federal agencies and environmental groups, and was determined
not to be in compliance with Teton County Land Development Regulations
(“LDRs”), the Corps recommended that Canyon Club withdraw and revise its
proposal, and Canyon Club did so.
Canyon Club submitted a revised section 404 application in October 2001
(the “October proposal”). Like the March proposal, the October proposal
envisioned an eighteen-hole golf course and residential development, but the
number of homes was increased to sixty-six and the overall size of the parcel that
would be the subject of development was increased to 359 acres. Changes were
also made to bring the project into compliance with Teton County LDRs, such as
moving two of the proposed golf holes off the peninsula extending into the river.
Proposed impacts to wetlands were reduced, and proposed conservation easements
were redesigned. A section 404 permit was necessary because the October
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proposal, like the March proposal, required dredging and filling of wetlands and
waters of the United States under the Corps’ jurisdiction, including the possible
construction of bendway weirs to protect the river banks.
At the Corps’ request, Canyon Club prepared a Biological Assessment
(“BA”) of the proposed development, retaining Pioneer Environmental Services,
Inc. (“Pioneer”) for this purpose. This BA considered the impact of the proposed
project on a number of species, including bald eagles, concluding that “[t]he
proposed project may affect and is likely to adversely affect bald eagles” but
would not adversely affect various other species. (2 Appellant’s App. at 437.) In
January 2002, Pioneer prepared a “Section 404(b)(1) Analysis” for the Corps,
listing several alternatives to the proposal. (2 id. at 398.) This section 404(b)(1)
analysis compared the October proposal to five alternatives: (1) the March
proposal, (2) a nine-hole golf course, (3) a design that would relocate holes three
and four of the proposed golf course, (4) no issuance of a section 404 permit, and
(5) a “no action” alternative. (2 id. at 403–06.) Finally, in March 2002, Pioneer
prepared an Environmental Assessment (“EA”) that compared the proposal to
each of these alternatives with the exception of (4).
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In its EA, the most comprehensive document prepared for the Corps,
Pioneer articulated the purposes and goals of the project: 4
• Supplement the ranching operations on the River Bend Ranch
with income from the Canyon Club golf development in order
to protect the working ranch operations (horse and/or cattle).
• Preserve the adjacent working ranch and the rustic, natural
character of the ranch throughout the project area.
• Develop a world-class, 18-hole, championship golf course of
such quality that it will maximize real estate values and
minimize the number of lot sales.
• Create a golf course with exceptional visual experiences and
variety of play (in length and direction of holes).
• Minimize development sprawl and conceal human structures
and the infrastructure of the golf course in order to preserve
the scenic quality of the environment.
• Minimize tree removal, wetland impacts, and ground
disturbance while optimizing conservation of open space.
(1 id. at 111.) Having thus defined the purposes of the project, Pioneer concluded
that the “no action alternative” and the nine-hole golf course alternative failed to
satisfy the project purposes. (1 id. at 121–24.) According to Pioneer, if the
Corps did not issue a section 404 permit, the entirety of the Ranch would be sold
to the Canyon Club, and a larger housing development without a golf course
would be built on the parcel. The nine-hole golf course was rejected for lack of
demand and failure to satisfy any of the enumerated project purposes. Finally,
Pioneer explained that the original 286-acre proposal and the possible relocation
4
We express no opinion on whether these are proper purposes for the
Canyon Club development under NEPA and the CWA. See supra footnote 1.
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of holes three and four would not be in compliance with Teton County LDRs.
Under this analysis, the October proposal was the only alternative that both
satisfied the purported purposes of the project and complied with local land
development regulations.
On April 5, 2002, the Fish and Wildlife Service (“FWS”) prepared a
Biological Opinion (“BO”) analyzing the likely effects of the October proposal on
species listed as threatened or endangered under the Endangered Species Act
(“ESA”), 16 U.S.C. § 1531 et seq. FWS concurred with Pioneer’s BA that the
proposed project would not adversely affect other species, but would likely affect
bald eagles. Specifically, FWS determined that the project would result in
increased human disturbance to the bald eagles and render their foraging habitat
less suitable. Although it conceded that some bald eagles “could become
moderately habituated to human presence or tolerant of certain activities along the
Snake River,” the BO stated that “[t]he Service anticipates the loss of 3 bald
eagle nesting territories (i.e., Cabin Creek, Martin Creek, and Dog Creek) as a
result of the proposed action.” (1 Appellant’s App. at 90–93.) FWS predicted
that bald eagles displaced by the project would be forced to move into territory
occupied by other bald eagles, and the reproductive output of 6 adult bald eagles
would be lost. Nonetheless, FWS concluded that the development “is not likely to
jeopardize the continued existence of the bald eagle,” and recommended
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mitigation measures to “minimize the impact of incidental take that might
otherwise result from the proposed action.” 5 (1 id. at 92–96.)
The Corps prepared its own EA reviewing the October proposal. Accepting
the definition of the project purposes set forth by Pioneer, the Corps considered
the alternatives suggested by Pioneer, and rejected them either because they did
not satisfy the purposes of the project or because they violated Teton County
LDRs. The Corps also considered two off-site alternatives on ranchland not
owned by Edgcomb or Canyon Club, but rejected these sites as too expensive to
purchase and likely to have a similar impact on wetlands. Based on this analysis,
the Corps concluded that the October proposal was “the least environmentally
damaging practicable alternative available.” (2 id. at 526.) The Corps further
concluded that the “permit action will not have a significant impact on the quality
of the human environment” and accordingly issued a Finding of No Significant
Impact, declining to issue an Environmental Impact Statement under NEPA. (2
id. at 546.)
On June 14, 2002, the Corps granted a section 404 permit to Canyon Club,
thus allowing the October proposal to go forward. Three days later, the plaintiffs
5
Unauthorized “take” of a listed species is prohibited by the ESA. 16
U.S.C. § 1538(a)(1)(B) & (G); 50 C.F.R. § 17.31(a). The term “take” means “to
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to
attempt to engage in any such conduct.” 16 U.S.C. § 1532(19).
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filed a petition in the Wyoming district court for review of the Corps’ decision to
issue a section 404 permit. Plaintiffs argued that the permit violated NEPA and
the CWA, and that the issuance of the permit was arbitrary, capricious, and an
abuse of discretion. Plaintiffs also moved for a temporary restraining order and a
preliminary injunction to halt the proposed development.
A temporary restraining order against the project was issued by the district
court, but it subsequently amended the order to allow limited construction
pending its ruling on the preliminary injunction. On June 18, 2002 and July 3,
2002, the district court held a hearing on the motion for a preliminary injunction.
At the hearing, the district court heard testimony from Edgcomb, various state and
federal environmental officials, and the president of Pioneer. On August 16,
2002, the district court lifted the temporary restraining order, and three days later
denied plaintiffs’ motion for a preliminary injunction. Plaintiffs appeal this
interlocutory order.
II
We review a district court’s denial of a preliminary injunction for abuse of
discretion. Hawkins v. City & County of Denver, 170 F.3d 1281, 1292 (10th Cir.
1999). “An abuse of discretion occurs only when the trial court bases its decision
on an erroneous conclusion of law or where there is no rational basis in the
evidence for the ruling.” Id. (quotation omitted). We examine the district court’s
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underlying factual findings for clear error and review its legal determinations de
novo. Davis v. Mineta, 302 F.3d 1104, 1111 (10th Cir. 2002).
A party seeking a preliminary injunction bears the burden of showing: “(1)
a substantial likelihood of prevailing on the merits; (2) irreparable harm unless
the injunction is issued; (3) [that] the threatened injury outweighs the harm that
the preliminary injunction may cause the opposing party; and (4) [that] the
injunction, if issued, will not adversely affect the public interest.” Fed. Lands
Legal Consortium ex rel. Robart Estate v. United States, 195 F.3d 1190, 1194
(10th Cir. 1999) . “If the plaintiff can establish that the latter three requirements
tip strongly in his favor, the test is modified, and the plaintiff may meet the
requirement for showing success on the merits by showing that questions going to
the merits are so serious, substantial, difficult, and doubtful as to make the issue
ripe for litigation and deserving of more deliberate investigation.” Davis, 302
F.3d at 1111 (quotation omitted). Because a preliminary injunction is an
extraordinary remedy, the right to relief must be clear and unequivocal. Kan.
Health Care Ass’n, Inc. v. Kan. Dep’t of Social & Rehab. Servs., 31 F.3d 1536,
1543 (10th Cir. 1994).
In the instant case, the district court found that the plaintiffs failed to
satisfy the first two conditions: (1) a likelihood of prevailing on the merits and
(2) irreparable harm unless the injunction is issued. The district court did not
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address the other two factors, i.e., (3) the balance of harms and (4) the effect on
the public interest. Because the appropriate standard for evaluating likelihood of
success on the merits depends on whether the other three factors are satisfied, we
begin by reviewing the district court’s determination that plaintiffs had failed to
show irreparable harm.
Two bases were articulated by the district court for its conclusion that the
plaintiffs had not shown irreparable harm. First, the district court noted,
“[p]laintiffs have made no showing that the well-being of the bald eagle species
may be jeopardized by the challenged action, and certainly not before this Court
has an opportunity to fully consider the merits of this case.” Greater Yellowstone
Coalition v. Flowers, No. 02-CIV-1036-D, slip op. at 4 (D. Wyo. Aug. 19, 2002)
(order denying preliminary injunction). Second, the district court found the
plaintiffs’ “alleged injuries to be speculative.” Id. We address these two
findings.
A
Although the district court acknowledged that FWS anticipated the loss of
three bald eagle nests and twelve juvenile bald eagles during the construction
period, it nonetheless concluded that alleging harm to individual bald eagles was
insufficient to justify a preliminary injunction. Citing Fund for Animals v.
Frizzell, 530 F.2d 982 (D.C. Cir. 1976) and Bays’ Legal Fund v. Browner, 828 F.
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Supp. 102 (D. Mass. 1993), it held that a proponent of a preliminary injunction
must show that the challenged action will irretrievably damage the entire species
and that plaintiffs did not meet this burden. 6
In Frizzell, the first case cited by the district court in support of its view,
the D.C. Circuit concluded that a proponent of a preliminary injunction “must
raise a substantial possibility that the harvest of excessive numbers of . . .
waterfowl will irretrievably damage the species.” Frizzell, 530 F.2d at 987. In
Frizzell, however, the species of waterfowl in question was not threatened or
endangered, and the petitioners were arguing that the destruction of “only one
bird is sufficient injury to warrant a preliminary injunction.” Id. Frizzell
concludes that equating “the death of a small percentage of a reasonably abundant
game species with irreparable injury without any attempt to show that the well-
being of that species may be jeopardized is to ignore the plain meaning of the
word.” Id. (emphasis added).
In the instant case, the animals likely to be harmed by the proposed golf
course development belong to a threatened species, not a “reasonably abundant
game species.” While harvesting a small percentage of an abundant game species
6
At oral argument, the Corps conceded that it is not necessary to show
likely extinction of the species in order to show irreparable harm. Because
Canyon Club did not make this concession, however, we consider the issue
further.
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will not result in a permanent decrease in the population, id. at 986–87,
threatening or eliminating the primary breeding area for bald eagles in the Greater
Yellowstone area would have a significant impact on that species in the area.
Accordingly, Frizzell is not persuasive authority, and we consider it inapplicable
given the distinguishing circumstances.
In Bays’ Legal Fund, a district court case from Massachusetts cited below,
the court determined that evidence of “irreparable harm” for purposes of a
preliminary injunction could be used to support a substantive claim of a violation
under the ESA, which requires a showing that a challenged federal action is likely
to “jeopardize the continued existence of any endangered species . . . or result in
the destruction or adverse modification of habitat of such species” under the ESA.
828 F. Supp. at 108 & n.13 (quotation omitted). The trial court in Bays’ Legal
Fund, however, was not faced with the question of what constitutes irreparable
harm: rather, the court had to decide whether evidence of such harm could
support a claim under the ESA standard. 7 Thus, the question presented in the
instant case was not even before the court in Bays’ Legal Fund, and its
7
The court in Bays’ Legal Fund did conclude that “the two standards are
sufficiently analogous to treat them equivalently.” 828 F. Supp. at 108 n.13.
However, because the court was faced only with the question of whether evidence
of irreparable harm could be used to support an ESA claim, this statement is mere
dicta for present purposes.
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conclusions are not relevant to the case before us. In any event, we are not bound
by rulings of the district courts, whether in or out of our circuit.
Plaintiffs contend that a proponent of a preliminary injunction under these
circumstances, seeking to prevent harm to members of a threatened or endangered
species, need not show harm to the species as a whole. 8 We agree. Contrary to
the assumption of both the court in Bays’ Legal Fund and the district court in the
instant case, there is no reason why the ESA’s language should govern the issue
of irreparable harm. Plaintiffs have not brought an ESA challenge, and it would
be preferable to base the determination of irreparable harm on the statutes that
actually form the basis of plaintiffs’ claims. For example, plaintiffs challenge the
8
Plaintiffs cite several district court cases in support of this view, of
which the most cogently reasoned and persuasive is Sierra Club v. Martin, 71 F.
Supp. 2d 1268, 1327 (N.D. Ga. 1996). In Martin, the court found irreparable
harm on the ground that the logging in question would “destroy certain sensitive
plants and animals located in the timber project areas, as well as suitable habitats
for these and other similar sensitive and endangered species in the two Forests.”
Id. at 1327.
Other cases cited by the plaintiffs do not clearly support their view. For
example, Sierra Club v. Norton, 207 F. Supp. 2d 1310, 1340 (S.D. Ala. 2002),
does indicate that harm to “individual members of the species” must be
considered, but explains that the challenged action may lead to “loss of long-term
viability of the species.” Several other cases cited by the plaintiffs involve
challenges to slaughter of individual bison, and are distinguishable insofar as the
method of killing the bison—rather than the loss of individual bison—was the
source of the harm to the plaintiffs. See, e.g., Fund for Animals v. Clark, 27 F.
Supp. 2d 8, 14 (D.D.C. 1998).
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issuance of the section 404 permit under the CWA 9—regulations under that
statute prevent “discharge of dredged or fill material . . . if there is a practicable
alternative . . . which would have less adverse impact on the aquatic ecosystem.”
40 C.F.R. § 230.10(a). This language does not differentiate between harm to
individual animals and harm to the species as a whole: rather, it looks to the
impact on the “aquatic ecosystem.” According to the plaintiffs, eliminating bald
eagles from the Snake River area would certainly have an “adverse impact on the
aquatic ecosystem,” as bald eagles are an important part of that ecosystem—and
one bald eagle nest in particular, the Cabin Creek nest, is the most productive
breeding territory in the Greater Yellowstone area.
We can find no compelling reason why the ESA language should serve as a
benchmark for deciding whether plaintiffs have shown irreparable harm. By
adopting the ESA standard, requiring that a plaintiff show damage to an entire
species, as the standard for evaluating irreparable harm in a CWA or NEPA
challenge, the district court based its decision on an erroneous conclusion of law.
We conclude that, to the extent that the district court based its denial of a
preliminary injunction on the plaintiffs’ failure to establish harm to the species as
a whole, this was an abuse of discretion.
9
Plaintiffs also bring a challenge under NEPA. We focus on the CWA
language merely to demonstrate that the ESA definition of harm is not dispositive
in the instant case.
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B
In addition to holding that plaintiffs failed to show harm to the species, the
district court also found that, in any event, the injuries alleged by the plaintiffs
were speculative. Consequently, we must also consider the district court’s
alternative ground for decision: that the possibility of harm to the bald eagles
was too speculative to justify granting a preliminary injunction.
Both the district court and the defendants rely on cases from other circuits
for the proposition that purely speculative harm does not amount to irreparable
injury, see Forest City Daly Housing v. Town of N. Hempstead, 175 F.3d 144,
153 (2d Cir. 1999); Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985), a
proposition with which this court agrees. Other cases, however, elaborate on the
level of risk that is required for a showing of irreparable harm. These latter cases
hold that an injury is not speculative simply because it is not certain to occur. An
“irreparable harm requirement is met if a plaintiff demonstrates a significant risk
that he or she will experience harm that cannot be compensated after the fact by
monetary damages.” Adams v. Freedom Forge Corp., 204 F.3d 475, 484–85 (3d
Cir. 2000) (emphasis added); see also Lanier Prof’l Servs., Inc. v. Ricci, 192 F.3d
1, 3 (1st Cir. 1999) (stating that a plaintiff must show a “significant risk of
irreparable harm” in order to obtain a preliminary injunction (emphasis added));
Associated Gen. Contractors of Cal., Inc. v. Coalition for Econ. Equity, 950 F.2d
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1401, 1410 (9th Cir. 1991) (same). While not an easy burden to fulfill, Adams,
204 F.3d at 485, we nonetheless agree with those circuits that consider a
significant risk of harm sufficient, and hold that a plaintiff who can show a
significant risk of irreparable harm has demonstrated that the harm is not
speculative.
In reaching the conclusion that the alleged harm to the bald eagles was
merely speculative, the district court did not apply the “significant risk” standard.
Thus, we proceed to examine the evidence to determine whether the plaintiffs
have shown a significant risk of irreparable harm.
As discussed above, the BO prepared by FWS anticipated the loss of three
bald eagles’ nests. 10 The Corps relied on the conclusions of FWS in determining
that the proposed development “may affect and is likely to adversely affect bald
10
Plaintiffs argue that, in finding that the alleged injuries to the bald
eagles were speculative in nature, the district court failed to give deference to the
BO prepared by FWS. “[D]eference to agency action is appropriate where that
action implicates scientific and technical judgments within the scope of agency
expertise.” Wyoming v. United States, 279 F.3d 1214, 1240 (10th Cir. 2002)
(quotation omitted). It is not clear that deference to FWS is appropriate in this
matter, however, as the present action does not arise under the ESA, the statute
which FWS is responsible for administering, see 50 C.F.R. § 402.01(b). Cf.
Sierra Club—Black Hills Group v. U.S. Forest Serv., 259 F.3d 1281, 1286 (10th
Cir. 2001) (“[W]e defer to agency interpretation of congressionally delegated
mandates.” (citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 843 (1984)). We need not decide this issue because, as discussed
below, we conclude that the evidence at the hearing amply demonstrated that the
proposed development posed a significant risk of harming bald eagles.
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eagles.” (2 Appellant’s App. at 527.) Other documents that the Corps relied on
in issuing the permit support FWS’s determination that the Canyon Club project
may harm bald eagles. For example, while the BA prepared by Pioneer ultimately
concluded that negative effects on bald eagles could be “minimized by the
implementation of mitigation measures and monitoring efforts” (1 Appellee’s
App. at 179), it also acknowledged that the project could harm the bald eagles in
a variety of ways. Pioneer’s BA admitted that “[t]here would be direct effects to
bald eagles and their habitats in association with construction of the Canyon Club
golf course and housing development. Disturbances associated with construction
would be in the form of noise, human activities, ground disturbance, and tree
removal.” (2 Appellant’s App. at 448.) The BA further stated that, while
removal of trees would be minimized during construction, “potential perch, roost,
and future nest trees could still be removed,” and predicted that “[f]oraging
habitat for the Dog, Martin, and Cabin Creek eagle pairs in the vicinity of the
project area could be impacted indirectly by the proposed development.” (2 id. at
448–49.) As to cumulative effects of the project, the BA stated that
“[c]umulative impact to eagles within and adjacent to the Canyon Club project
area could be realized over time because of the projected increase in recreational
use of the project area and adjacent land by Club members, families, and guests.”
(2 id. at 450.)
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At the hearing on the preliminary injunction, Robert J. Oakleaf, a wildlife
biologist with the Wyoming Game and Fish Department, testified as to the impact
that the Canyon Club project would have on the bald eagles. Oakleaf testified
that, if the proposed development went forward, “out of the four pairs, four bald
eagle nests that were there, we’d be lucky if one remained.” (5 Appellant’s App.
at 895.) Oakleaf based this prediction on “the increase in human activity and the
distribution of where it is,” as well as the fact that the development would
“remove . . . a significant amount of foraging habitat.” (5 id. at 896.) Oakleaf
predicted that the greatest threat was to the Martin Creek nest, “and then it’s
going to be a toss-up between the Dog Creek and Cabin Creek,” but “we think
that . . . three of the four pairs [of bald eagles] will disappear.” (5 id. at 898.)
Oakleaf qualified this prediction by stating that “[i]t may take two years; it
may take 20 years” for the bald eagles to leave the nests (5 id. at 901), and
explained that the Department had not quantified the projected loss of bald eagles
because “they don’t like to be put hanging their hat on something that may or may
not happen,” (5 id. at 917). Oakleaf also acknowledged that, in some instances,
bald eagles had been tolerant of human activity. Nevertheless, the thrust of
Oakleaf’s testimony was a prediction that the bald eagles would likely be harmed
by the proposed Canyon Club development.
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Patricia Ann Deibert, a fish and wildlife biologist for the Wyoming field
office of FWS, testified that maintaining a 400-meter buffer zone around the nest
“will protect the nest itself . . . [but] will not protect the foraging areas which are
critical to the success of those nests during the breeding season.” (5 id. at 1023.)
Later, however, the court asked Deibert whether, if these buffer zones protect the
nest sites, “those nest sites could remain viable places for reproduction of the
species,” and Deibert responded, “They could.” (5 id. at 1025.) Deibert also
confirmed that FWS’s prediction of a loss of three bald eagle nests was “a worst-
case scenario.” (5 id. at 1016.) Even so, when asked about the mitigation
measures proposed to protect the bald eagles, Deibert responded that “[i]t is still
possible that three bald eagle nesting territories will be lost.” (5 id. at 1021.)
While Deibert left open the possibility that mitigation measures might save the
bald eagles, she stood by FWS’s position that the project would likely result in
the loss of three bald eagle nests.
Roy Hugie, a wildlife biologist and president of Pioneer, was called by
Canyon Club to address the potential impact of the proposed golf course on the
bald eagles. Hugie was optimistic about the possibility that the bald eagles could
adapt to the construction of the golf course and resulting increase in human
activity. While Hugie conceded that the project could adversely affect the bald
eagles, he considered it equally likely “that this project has the potential to either
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maintain the status quo or perhaps develop a stronger food source than currently
exists.” (5 id. at 1089.)
Hugie further asserted that the “human intrusion” could be “controlled” by
the design of the course and various mitigation measures. (5 id.) Hugie pointed
to the example of the Elbow nest; although the nest is near a campground, the
bald eagles have “habituated” to the human presence. (5 id. at 1076.)
Nevertheless, despite these rosy predictions, Hugie conceded under cross-
examination that he “wholly agree[d]” with the proposition that implementation of
the project “has the potential to adversely affect bald eagles.” (5 id. at 1089.)
Thus, all of the expert witnesses at the hearing, including Canyon Club’s
witness Hugie, acknowledged that there was a significant risk that the proposed
development would harm the bald eagles, even if they qualified this by couching
it in conditional terms. In order to determine whether this satisfies the irreparable
harm requirement, however, we must further decide whether such harm is likely
to occur before the district court rules on the merits. “Perhaps the single most
important prerequisite for the issuance of a preliminary injunction is a
demonstration that if it is not granted the applicant is likely to suffer irreparable
harm before a decision on the merits can be rendered . . . . [I]f a trial on the
merits can be conducted before the injury would occur there is no need for
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interlocutory relief.” 11A Wright, Miller & Kane, Federal Practice and Procedure
§ 2948.1, at 139–49.
If the plaintiffs alleged that the eagles would be harmed only by the use of
the completed project, and not by its construction, this would be insufficient to
justify a preliminary injunction in advance of the trial court’s decision on the
merits. However, the record shows that construction of the Canyon Club project
itself poses a significant risk to the eagles. For example, FWS determined in its
BO that
[t]here will be direct effects to bald eagles and their
habitats in association with construction of the Canyon
Club golf course and housing development.
Disturbances associated with construction would be in
the form of noise, human activities, ground disturbance,
and tree removal . . . . A maximum of 9.5 acres of
forested habitat could be removed from proposed
fairways during golf course construction. A maximum
of 3.0 acres of forested habitat could be removed from
proposed building envelopes during homesite
construction.
(1 Appellant’s App. at 86 (emphasis added).) While the FWS proposed mitigation
measures to reduce these effects, it is evident that FWS considered the
construction itself, as well as the later use of the development, to pose a direct
threat to the eagles. Pioneer also acknowledged this threat in its BA, stating,
“[t]here would be direct effects to bald eagles and their habitats in association
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with construction of the Canyon Club golf course and housing development.” (1
Appellee’s App. at 168 (emphasis added).)
At the hearing on the preliminary injunction, Edgcomb stated that
construction on the Canyon Club project will resume in April of this year absent
an intervening order from the court. Edgcomb testified that in 2003 “our
construction window would be from April through September.” (4 Appellant’s
App. at 729.) In fact, some construction began last summer, and there is presently
no legal impediment to restarting construction at any time. In any event, because
the district court gave no indication that it will rule on the merits in advance of
the April target date for construction, plaintiffs have shown a significant risk that
irreparable harm will occur before the district court decides the merits of this
case. 11
11
In its order, the district court stated that “[p]laintiffs have made no
showing that the well-being of the bald eagle species may be jeopardized by the
challenged action, and certainly not before this Court has an opportunity to fully
consider the merits of this case.” Greater Yellowstone Coalition, No. 02-CIV-
1036-D, slip op. at 4 (D. Wyo. Aug. 19, 2002) (order denying preliminary
injunction) (emphasis added). This statement, however, indicates only that
plaintiffs have not shown irreparable harm will occur to the species before the
district court rules on the merits. The district court made no factual finding as to
the likelihood that harm to individual bald eagles will occur before it rules on the
merits. While Canyon Club has submitted supplemental authority indicating that
a hearing before the district court, which appears to be a hearing on the merits, is
scheduled for February 26, 2003, there is no guarantee that the district court will
issue a ruling on the merits before April.
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Having reviewed the record under the proper standard, we conclude that
there is no rational basis for a determination that plaintiffs failed to show
irreparable harm. We conclude that the district court applied the wrong standard
in evaluating whether the harm was speculative, and, under the correct standard,
plaintiffs have shown a significant risk of irreparable harm. Accordingly, we
hold that the district court abused its discretion in finding that the injury to the
bald eagles was too speculative to justify preliminary injunctive relief.
III
As a further alternative ground for denying the preliminary injunction, the
district court found that plaintiffs were unlikely to succeed on the merits.
Because the district court also concluded that plaintiffs had failed to show
irreparable harm, it did not take into consideration the special standard that we
have enunciated for cases where a proponent of a preliminary injunction has
established all of the factors save likelihood of success on the merits. If a
plaintiff can show that all the factors except for likelihood of success on the
merits tip strongly in its favor, “the plaintiff may meet the requirement for
showing success on the merits by showing that questions going to the merits are
so serious, substantial, difficult, and doubtful as to make the issue ripe for
litigation and deserving of more deliberate investigation.” Davis, 302 F.3d at
1111. This modification of the ordinary preliminary injunction standard was
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adopted by our circuit nearly four decades ago in the case of Continental Oil Co.
v. Frontier Refining Co., 338 F.2d 780, 782 (10th Cir. 1964).
As discussed above, we have concluded that the plaintiffs satisfied the
irreparable harm requirement in the instant case. Two inquiries remain: the
district court did not address the balance of harms and the effect on the public
interest. If plaintiffs are able to demonstrate that these other two factors weigh
heavily in their favor, the district court must reevaluate its merits analysis under
the less stringent standard we adopted in Continental Oil Co. It would be
premature for this court to examine the likelihood of plaintiffs’ success on the
merits without knowing whether the two remaining factors are satisfied and
without a determination of the resultant applicable legal standard that would
govern the merits analysis. 12
12
We express no view on whether the plaintiffs have shown likelihood of
success on the merits under either standard. We note, however, that the district
court failed to address plaintiffs’ claims under the CWA, focusing on their NEPA
claims. NEPA requires that federal agencies “study, develop, and describe
appropriate alternatives to recommended courses of action in any proposal which
involves unresolved conflicts concerning alternative uses of available resources.”
42 U.S.C. § 4332(2)(E). By contrast, the CWA regulations mandate that “no
discharge of dredged or fill material shall be permitted if there is a practicable
alternative to the proposed discharge which would have less adverse impact on
the aquatic ecosystem, so long as the alternative does not have other significant
adverse environmental consequences,” 40 C.F.R. § 230.10(a), and that “no
discharge of dredged or fill material shall be permitted which will cause or
contribute to significant degradation of the waters of the United States,”
§ 230.10(c). The CWA regulations further state that, when the basic purpose of a
(continued...)
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On remand, therefore, the district court must consider whether plaintiffs
have satisfied the other two factors that it has not yet considered. If both these
factors weigh heavily in plaintiffs’ favor, the district court should proceed to
consider whether plaintiffs’ claims “are so serious, substantial, difficult, and
doubtful as to make the issue ripe for litigation and deserving of more deliberate
investigation.” Davis, 302 F.3d at 1111. If these two factors have not been
satisfied, the district court should proceed under the alternate standard,
considering both NEPA and CWA claims under the applicable standard relevant
to each.
IV
The judgment of the district court is REVERSED, and the case
REMANDED for proceedings consistent with this opinion.
12
(...continued)
project may be accomplished without “access or proximity” to a “special aquatic
site, . . . practicable alternatives that do not involve special aquatic sites are
presumed to be available, unless clearly demonstrated otherwise.” § 230.10(a)(3).
Thus, under the CWA, it is not sufficient for the Corps to consider a range of
alternatives to the proposed project: the Corps must rebut the presumption that
there are practicable alternatives with less adverse environmental impact. For
example, the impact of the proposed bendway weirs must be evaluated under the
CWA. On remand, the district court should carefully examine plaintiffs’ claims
under both NEPA and the CWA, taking into consideration the different standards
pertinent to each statute.
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