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1 alternative path that ignored key elements of the RPA and shifted the burden of compliance to NFIP <br /> 2 communities. The letter triggered a public reaction of surprise from NMFS officials who believed <br /> 3 that FEMA had agreed to the elements of the RPA.5 A follow-up letter in June sought to provide <br /> 4 "greater elaboration and amplification"of FEMA's response. Hasselman Decl., Ex. 5 (`Carey <br /> 5 Letter"). FEMA's position on implementation of the RPA, and the results of its efforts,are further <br /> 6 described in its two Annual Reports to NOAA. Hasselman Decl., Ex. 6 ("2009 Annual Report") <br /> 7 and Ex. 7 ("2010 Annual Report"). As of the date of this motion,all deadlines contained in the <br /> 8 FEMA BiOp have passed. <br /> 9 STANDARD OF REVIEW <br /> 10 Under the conventional test governing preliminary injunctions,plaintiffs must show that: <br /> 11 a) they are likely to succeed on the merits;b)they are likely to suffer irreparable harm in the <br /> 12 absence of relief; c)the balance of equities tips in their favor; and d)an injunction is in the public <br /> 13 interest. NRDC v. Winter, 129 S.Ct. 365,374(2008).6 In ESA cases,however,the conventional <br /> 14 test does not apply. Tennessee Valley Auth. v. Hill,437 U.S. 153, 193-95 (1978); Sierra Club v. <br /> 15 Marsh, 816 F.2d 1376, 1383 (9th Cir. 1987). In enacting the ESA, Congress"foreclosed the <br /> 16 exercise of the usual discretion possessed by a court of equity." Weinberger v. Romero-Barcelo, <br /> 17 456 U.S. 305,313 (1982). Under the ESA,once a plaintiff establishes a probability of success on <br /> 18 the merits and likely harm, the balance of hardships and the public interest require an injunction. <br /> 19 National Wildlife Fed. v.National Marine Fisheries Service,422 F.3d 782, 793-794(9th Cir. 2005). <br /> 20 This case arises under the citizen-suit provision of the ESA. 16 U.S.C. § 1540(g). Courts <br /> 21 <br /> 22 5 See Craig Welch, Feds: New Floodplain Rules to Go Unenforced,Seattle Times(April 28,2009) <br /> (available at http://seattletimes.nwsource.com/html/localnews/2009134725_fema28m.html). <br /> 23 6 The Winter majority affirmed that irreparable harm had to be"likely"as opposed to just"possible." Id. <br /> 24 at 375. However,Winter did not overrule a long-standing"sliding scale"approach to preliminary <br /> injunctions under which"the elements of the preliminary injunction are balanced,so that a stronger <br /> 25 showing of one element may offset a weaker showing of another." Alliance for the Wild Rockies v. <br /> Cottrell,632 F.3d 1127, 1131 (9th Cir. 2011)(holding that injunction could issue post-Winter where <br /> 26 balance of harms tips sharply in plaintiffs favor and there were"serious questions"as to the merits). <br /> 27 Earthjustice <br /> PLAINTIFF'S MOTION FOR PRELIMINARY 705 Second Ave.,Suite 203 <br /> Seatt98104 <br /> 2.8 INJUNCTION (Case No. 2:11-cv-02044-RSM) -9- (206)3 wA43-734400 <br /> (206)3 <br />