12 F.Supp.2d 1121 (D.Or. 1997), Civ. 94-1318, Friends of Wild Swan, Inc. v. United States Fish & Wildlife Service

Docket Nº:Civ. 94-1318
Citation:12 F.Supp.2d 1121
Party Name:Friends of Wild Swan, Inc. v. United States Fish & Wildlife Service
Case Date:December 04, 1997
Court:United States District Courts, 9th Circuit, District of Oregon
 
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Page 1121

12 F.Supp.2d 1121 (D.Or. 1997)

FRIENDS OF THE WILD SWAN, INC. et al., Plaintiffs,

v.

U.S. FISH & WILDLIFE SERVICE, an agency of the U.S. Department of the Interior; et al., Defendants.

Civil No. 94-1318-JO.

United States District Court, D. Oregon.

Dec. 4, 1997

Page 1122

Gary Keith Kahn, Reeves Kahn & Eder, Portland, OR, Jack R. Tuholske, Missoula, MT, for Plaintiffs.

Kristine Olson, U.S. Attorney, District of Oregon, Thomas C. Lee, Asst. U.S. Attorney, U.S. Attorney's Office, Portland, OR, Warigia M. Bowman, U.S. Department of Justice, Wildlife & Marine Resources Section, Washington, D.C., Scott W. Horngren, Haglund & Kirtley, Portland, OR, Bruce M. Smith, Rosholt Robertson & Tucker, Boise, ID, for Defendants, Amicus, and Intervenor-Defendants.

OPINION AND ORDER

ROBERT E. JONES, District Judge.

This case has been before this court several times in plaintiffs' efforts to give the bull trout the maximum protection available under the federal Endangered Species Act (ESA). As allowed under that Act and the U.S. Fish and Wildlife Service's (USFWS's) regulations, 1 plaintiffs originally petitioned USFWS to list the bull trout as an endangered species on October 27, 1992. They also requested emergency listings for certain bull trout populations. Eventually, USFWS issued its 1994 WARRANTED, BUT PRECLUDED ADMINISTRATIVE 12-MONTH FINDING ON A PETITION TO LIST THE BULL TROUT UNDER THE ENDANGERED SPECIES ACT (June 6, 1994) (hereinafter ORIGINAL 1994 FINDING), concluding that listing of that species in the coterminus United States was warranted but precluded. ORIGINAL 1994 FINDING 26. Plaintiffs filed this suit to challenge that determination, arguing that the "warranted but precluded" finding for the bull trout was arbitrary and capricious.

The bull trout was never listed. On June 12, 1995, USFWS issued its new 12-month finding for the bull trout, as the ESA requires. 12-MONTH RECYCLED PETITION FINDING FOR A PETITION TO LIST THE BULL TROUT AS THREATENED OR ENDANGERED, 60 Fed.Reg. 30825, 30825 (June 12, 1995) (hereinafter 1995 FINDING). USFWS again concluded that listing of the bull trout was warranted but precluded. Id.

On June 22, 1995, this court issued an order declaring plaintiffs' challenge to the ORIGINAL 1994 FINDING moot because of the 1995 FINDING and instructing plaintiffs to amend their complaint to challenge the 1995 FINDING, if they so desired. Plaintiffs declined to amend their complaint and appealed to the Ninth Circuit. The Ninth Circuit found that plaintiffs' challenge "falls within the exception to the mootness doctrine for claims that are capable of repetition yet evading review." Friends of Wild Swan v. U.S. Fish & Wildlife Serv., No. 95-35916, 81 F.3d 168, 1998 WL 155143, at 6 (9th Cir. April 2, 1996). Accordingly, the Ninth Circuit remanded the case to this court.

On remand, this court determined that USFWS had been arbitrary and capricious in its ORIGINAL 1994 FINDING and remanded that determination to the agency. Friends of the Wild Swan v. U.S. Fish & Wildlife Serv., 945 F.Supp. 1388, 1401-02 (D.Or.1996). In compliance with this court's order, USFWS revisited the ORIGINAL 1994 FINDING and on March 11, 1997, it issued its reconsidered 12-MONTH FINDING ON A PETITION TO LIST THE BULL TROUTTTT (hereinafter the REVISED 1994 FINDING). In accordance with its findings in the REVISED 1994 FINDING, on June 17, 1997, USFWS issued a proposed regulation to list certain population segments of the bull trout for protection under the ESA. PROPOSAL TO LIST THE KLAMATH RIVER POPULATION SEGMENT OF BULL TROUT AS AN ENDANGERED SPECIES AND COLUMBIA RIVER POPULATION SEGMENT OF BULL TROUT AS A THREATENED SPECIES, 62 Fed.Reg. 32268, 32268 (June 13, 1997) (hereinafter the proposed rule).

In the proposed rule, USFWS used the 1994 record to find that five distinct population segments of bull trout exist: "(1) Coastal/Puget Sound; (2) Klamath River; (3) Columbia

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River; (4) Jarbridge River; and (5) Saskatchewan River." 62 Fed.Reg. at 32269. USFWS further determined that listing was not warranted for the Coastal/Puget Sound, Jarbridge River, and Saskatchewan River populations. Id. However, it has proposed listing of the Klamath River population segment as an endangered species and the Columbia River population segment as a threatened species. Id. at 32268.

This case is now before us on the parties' cross motions (# 176, # 190) regarding USFWS's decisions to make listing decisions solely for five distinct population segments and to not propose the Coastal/Puget Sound, Jarbridge River, and Saskatchewan River population segments for listing pursuant to the ESA. For the reasons discussed below, I GRANT plaintiffs' motion in part and DENY it in part, GRANT defendant's motion in part and DENY it in part, and remand the REVISED 1994 FINDING to USFWS for the limited purposes of: (1) explicitly considering whether listing of the bull trout is warranted throughout the species' range; (2) considering whether listing of the bull trout is warranted within the coterminous United States or explaining why USFWS no longer considers the coterminous United States a proper population on which listing decisions can be based; and (3) reconsideration of whether listing of the Coastal/Puget Sound population segment is warranted. This opinion is not intended to interrupt, nor should it be interpreted as disrupting, the ongoing listing process for the Klamath River population segment and the Columbia River population segment.

ADMINISTRATIVE FINDINGS

A. THE REVISED 1994 FINDING

1. Bull Trout Species as a Whole and Listing Factors

The bull trout (Salvelinus confluentus) is a large freshwater char that is native to Washington, Oregon, Idaho, Montana and Nevada, as well as Canada and Alaska. In its REVISED 1994 FINDING, USFWS noted that bull trout populations "exhibit four distinct life history forms: resident, fluvial, adfluvial, and anadromous." Id. at 3. Moreover, these "[d]iverse life history strategies are important to the stability and vitality of bull trout populations ***." Id. In particular:

Extensive migrations are characteristic of the species ***. Migratory bull trout facilitate the interchange of genetic material between populations, ensuring sufficient variability within populations. Migratory forms also provide a mechanism for restoring local populations extirpated due to natural or human-caused events ***. Migratory forms are more fecund and larger than non-native brook trout, potentially reducing the risks associated with hybridization ***. The greater fecundity of these larger bull trout also enhances the ability of a population to persist in the presence of introduced fishes ***. Migratory bull trout have been restricted and/or eliminated due to stream habitat alterations, including seasonal or permanent obstructions, detrimental changes in water quality, increased temperatures, and the alteration of natural stream flow patterns. Migratory corridors tie seasonal habitat together for anadromous, adfluvial, and fluvial forms, and allow for dispersal of resident forms for recolonization of rebounding habitats. The disruption of migratory corridors, if severe enough, will result in the loss of migratory life history types and isolate resident forms from interacting with the metapopulation ***.

Id. at 4. In addition:

Bull trout display a high degree of sensitivity at all life stages to environmental disturbance and have more specific habitat requirements than many other salmonids ***. Bull trout growth, survival, and long-term population persistence appear to be particularly dependent upon five habitat characteristics: 1) Cover, 2) channel stability, 3) substrate composition, 4) temperature, and 5) migratory corridors ***.

Id. at 3.

In the REVISED 1994 FINDING, USFWS reviewed each of the five listing factors set forth in the ESA for the bull trout species throughout its range. Habitat degradation was particularly significant. Thus, USFWS noted that "only 18 percent of all bull trout populations and stream segments rangewide are not threatened by degraded habitat conditions"

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and that "[a]dverse impacts to bull trout habitat and populations due to land management practices have been documented throughout the species' range in the coterminous United States ***." Id. at 25. Moreover, USFWS noted that it is "likely" that the bull trout populations in "managed" drainages are at risk of extinction. Id. In addition, dams have affected bull trout habitat and "[m]any migratory bull trout populations associated with mainstem river systems have been extirpated due to the construction of dams, particularly in the Columbia Basin ***." Id. Dams also isolate bull trout populations, and "[c]onnectivity within and between watersheds is essential for maintaining aquatic ecosystem functions *** and healthy bull trout populations ***." Id. Finally, agriculture, grazing and mining have all adversely affected the bull trout.

As to other factors, USFWS noted that "[f]orty-two percent of all populations across the range were considered suppressed due to accessibility and overharvest," id. at 31, and that "illegal poaching of bull trout continues and especially threatens small populations." Id. Although disease is not believed to threaten the bull trout population, "[p]redation on juvenile bull trout by non-native fish species, such as lake, brown, and brook trout is a recent and potentially serious threat to many populations ***." Id. at 33. Existing regulatory mechanisms are inadequate to protect the bull trout; "[i]mplementation of Federal and State laws designed to conserve fish resources or maintain water quality has been inadequate to prevent past and ongoing habitat degradation and population fragmentation." Id. at 34. Finally...

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