The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION AND ORDER RE PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER
Plaintiffs, San Luis & Delta Mendota Water Authority (the "Authority") and Westlands Water District ("Westlands"), move for a Temporary Restraining Order ("TRO") against the implementation of Reasonable and Prudent Alternative ("RPA") Action IV.2.3 set forth in the National Marine Fisheries Service's ("NMFS") June 4, 2009 Biological Opinion ("2009 Salmonid BiOp"), which addresses the impacts of the coordinated operations of the federal Central Valley Project ("CVP") and State Water Project ("SWP") on the Central Valley winter-run and spring-run Chinook salmon, Central Valley steelhead, Southern Distinct Population Segment of Green Sturgeon, and Southern Resident Killer Whales ("Listed Species"). Doc. 164, filed Jan. 27, 2010. San Luis and Westlands concurrently filed a motion for preliminary injunction raising additional grounds for enjoining Action IV.2.3. Doc. 164.
Plaintiffs State Water Contractors; Metropolitan Water District of Southern California; and Kern County Water Agency and Coalition for a Sustainable Delta joined the TRO motion. Docs. 177, 179 & 181. Plaintiffs Oakdale Irrigation District, et al., and Intervenor California Department of Water Resources ("DWR"), the operator of the SWP, filed statements of non-opposition. Docs. 180 & 185. Federal Defendants and Defendant Intervenors opposed. Doc. 190 & 187.
The TRO motion came on for hearing February 2, 2010, on shortened notice, in Courtroom 3 of the abovecaptioned Court. The parties were represented by counsel, as noted in the record in open court.
Plaintiffs seek temporary injunctive relief on the grounds that:
(1) the 2009 Salmonid BiOp is arbitrary, capricious, and contrary to law because:
(a) NMFS allegedly conducted an effects analysis that improperly overstates impacts attributable to the coordinated operations of the CVP and SWP; (b) NMFS failed to clearly define or consistently apply a relevant environmental baseline; (c) NMFS failed to distinguish between discretionary and non-discretionary CVP and SWP activities, which overstated the effects of coordinated operations of the Projects; (d) RPA Action IV.2.3 is arbitrary and capricious, because it is without factual or scientific justification and/or is not supported by the best available science; and (2) NMFS and the United States Bureau of Reclamation ("Reclamation") failed to comply with the National Environmental Policy Act ("NEPA") in issuing and implementing the 2009 Salmonid BiOp.
Plaintiffs further claim that the implementation of Action IV.2.3 will cause them continuing irreparable harm and that the public interest and balance of hardships favor injunctive relief.
II. STANDARDS OF DECISION
A. Temporary Restraining Order.
Injunctive relief, whether temporary or permanent, is an "extraordinary remedy, never awarded as of right." Winter v. Natural Resources Defense Council, 129 S.Ct. 365, 376 (2008); Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982). The standard for relief applicable to a temporary restraining order is the same as for a preliminary injunction. Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001).
Four factors must be established by a preponderance of the evidence to qualify for temporary injunctive relief:
1. Likelihood of success on the merits;
2. Likelihood the moving party will suffer irreparable harm absent injunctive relief;
3. The balance of equities tips in the moving parties' favor; and
4. An injunction is in the public interest. Winter, 129 S.Ct. at 374; Am. Trucking Ass'n v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009).
B. Balancing of the Harms in ESA Cases.
The Supreme Court held in TVA v. Hill, 437 U.S. 153, 194 (1978), that Congress struck the balance in favor of affording endangered species the highest of priorities. In adopting the Endangered Species Act ("ESA"), Congress intended to "halt and reverse the trend toward species' extinction, whatever the cost." Id. at 184 (emphasis added). TVA v. Hill continues to be viable. See Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 664, 669-71 (2007); see also United States v. Oakland Cannabis Buyers' Co-op., 532 U.S. 483, 496-97 (2001); Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 543 n.9 (1987).
Winter does not modify or discuss the TVA v. Hill standard.*fn1 Although Winter altered the Ninth Circuit's general preliminary injunctive relief standard by making that standard more rigorous, Winter did not address, let alone change, the Circuit's approach to the balancing of hardships where endangered species and their critical habitat are jeopardized. See Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1169 (9th Cir. 2002) (Congress removed the courts' traditional equitable discretion to balance parties' competing interests in ESA injunction proceedings); Nat'l Wildlife Fed'n v. Burlington N. R.R., Inc., 23 F.3d 1508, 1510-11 (9th Cir. 1994)(same).
Two post-Winter district court cases declined to balance the equities in evaluating requests for injunctive relief under the ESA, applying TVA v. Hill's reasoning. Oregon Natural Desert Ass'n v. Kimbell, 2009 WL 1663037, at *1 (D. Or. June 15, 2009); Animal Welfare Inst. v. Martin, 588 F. Supp. 2d 70, 105-106 (D. Me. 2008).
TVA v. Hill and related Ninth Circuit authorities foreclose the district court's traditional discretion to balance equities under the ESA. However, there is no such bar in NEPA injunction proceedings. This case is at the intersection of ...