Supreme Court Rule on Endangered Species Cases Has Limits

Thursday, December 4, 2025

Page 4

Ninth Circuit:

Supreme Court Rule on Endangered Species Cases Has Limits

Opinion Says High Court Decision That Has Been Interpreted as Eliminating Any Balance of Equities Analysis for Preliminary Injunctions Under Protection Act Gives Way When Multiple Types of At-Risk Organisms Involved

By Kimber Cooley, associate editor

The Ninth U.S. Circuit Court of Appeals held yesterday that a rule that reduces a court’s discretion in determining whether to grant a preliminary injunction under endangered species legislation, based on a 1978 U.S. Supreme Court opinion highlighting that the protection of at-risk organisms is to be given the “highest of priorities,” is not absolute.

Saying that the standard must give way when the requested measures might have an impact on other protected species that have been ignored by the party seeking the preliminary injunction, yesterday’s opinion empowers courts to fully consider the balance of equities at stake in deciding whether to order the requested relief.

Courts are generally empowered to analyze requests for preliminary injunctions by considering whether the plaintiff is likely to succeed on the merits, to suffer irreparable harm without judicial intervention, and if the balance of equities and the public interest weigh in favor of issuing the order.

Following the Supreme Court opinion in Tennessee Valley Authority v. Hill, in which the court indicated that the Endangered Species Act (“ESA”) evinces a legislative intent “to…reverse the trend toward…extinction, whatever the cost,” the Ninth Circuit has held that judges are to ignore the balance of equities and public interest in deciding whether to issue preliminary injunctions under the act as those factors will always weigh in favor of the relief.

Circuit Judge Jacqueline H. Nguyen authored yesterday’s opinion, joined in by Circuit Judges Danielle J. Forrest and Lawrence VanDyke, announcing an exception to the long-standing rule, saying that the case before the court “test[ed] the logic of our approach” because more than one endangered species was likely to be impacted by the requested order. She wrote:

“We hold that when mandatory injunctive relief under the ESA may benefit one protected species at the expense of other protected species, a court must consider competing equities and the public interest as to those other species.”

Concurring in the opinion, VanDyke wrote separately to “emphasize” that the need for a robust analysis was increased by the fact that the case involved a request for a mandatory injunction rather than a prohibitory one.

Allegations of Noncompliance

The question arose after a group of non-profit organizations—San Luis Obispo Coastkeeper, Los Padres ForestWatch, California Coastkeeper Alliance, and Ecological Rights Foundation (collectively referred to in the opinion as “the NGOs”)—filed a complaint against the County of San Luis Obispo in August 2024, alleging decades of noncompliance with certain regulatory provisions of the ESA relating to its management of the Lopez Dam.

Asserting that the county’s operations have caused an unlawful “take” of the endangered steelhead trout within the meaning of the act by interfering with the flow of the Arroyo Grande Creek (“AG Creek”), the NGOs requested an order directing the county to take certain actions, including the submission and implementation of a proposed plan for releasing more water from the dam during certain times of the year.

Opposing the request, the county provided evidence that the endangered tidewater goby and threatened California red-legged frog, which also inhabit the AG Creek watershed, would be negatively affected by the changes sought by the NGOs.

Last December, District Court Judge Sherilyn Peace Garnett of the Central District of California issued a preliminary injunction that adopted most of the NGO’s requested relief without considering the impact of the order on the other at-risk species.

Two Questions

Nguyen wrote:

“We grapple with two questions. First, how should the district court weigh the interests of the California red-legged frog and tidewater goby—both ESA-listed species. Second, did the district court properly do so.”

She noted that Congress amended the ESA shortly after the Tennessee Valley Authority case (“TVA”) was decided to moderate some of the act’s initial absolute requirements and said:

“Despite Congress’s statutory change and the fact that TVA specifically addressed the application of section 7 [of the act], the Ninth Circuit has expanded the rule of TVA—that courts have no discretion to balance equities or the public interest when considering whether a permanent injunction is warranted under section 7—to the consideration of any injunction, preliminary or permanent, sought in any ESA case.”

The jurist added:

“TVA and its progeny dealt with injunctions halting disruptions to natural habitats—a quintessential conflict caused by the ‘economic growth and development untempered by adequate concern and conservation’ that Congress was specifically concerned about….In this context, courts do not consider the balance of the equities and the public interest, because Congress already did so in deciding that endangered species would take precedence ‘whatever the cost.’ ”

Saying that “[t]his rationale…collapses where protecting one listed species might jeopardize another,” she opined:

“Rigidly applying TVA in this context risks turning the ESA on its head….Nothing in that inquiry leaves room to account for the frog or goby. The ESA’s command to prioritize endangered species becomes a one-way ratchet, favoring one listed species without any room to weigh the cost to another.”

Preliminary Order

Turning to Garnett’s order, Nguyen wrote:

“Despite the district court’s best efforts, the frog and goby received no meaningful consideration. Implicitly recognizing the illogical result of applying TVA to the facts of this case, the district court attempted to bridge the gap by directing the parties to consult with federal agencies to ensure the goby and frog would not be harmed. But attempting to involve the appropriate federal agencies is not an adequate substitute for the exercise of informed discretion, as the record here highlights.”

She concluded:

“We hold today that when a district court considers a mandatory preliminary injunction under the ESA and the evidence shows that other listed species may also be affected, the TVA exception to the [preliminary injunction request] test does not apply. In that circumstance, the court must weigh the balance of equities and the public interest solely as they bear on those other species.”

In his concurring opinion, VanDyke wrote:

“I join the majority opinion in full. I write separately to emphasize the demanding standard that must be met before a district court may issue a mandatory preliminary injunction, a standard that becomes even harder to satisfy in cases like this one which involve the complicated interplay between different species.”

He added:

“Applying that rigorous standard in the Endangered Species Act context means that district courts must be confident that the relief granted will not adversely affect other species before pulling the trigger on a mandatory preliminary injunction. Reaching such a conclusion with confidence is very challenging at the preliminary injunction stage in cases like this one.”

The case is San Luis Obispo Coastkeeper v. County of San Luis Obispo, 24-7807.