Wild Fish Conservancy v. Salazar

• Decision Date: 07 December 2010
• Docket Number: No. 09-35531,09-35531
• Citation: 628 F.3d 513,71 ERC 2121
• Parties: WILD FISH CONSERVANCY, Plaintiff-Appellant, v. Kenneth L. SALAZAR, in his official capacity as Secretary of the Interior; United States Fish and Wildlife Service; Rowan W. Gould, in his official capacity as Acting Director of the United States Fish & Wildlife Service; Julie Collins, in her official capacity as Complex Manager for the Leavenworth National Fish Hatchery Complex, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

628 F.3d 513

71 ERC 2121

WILD FISH CONSERVANCY, Plaintiff-Appellant,

v.Kenneth L. SALAZAR, in his official capacity as Secretary of the Interior; United States Fish and Wildlife Service; Rowan W. Gould, in his official capacity as Acting Director of the United States Fish & Wildlife Service; Julie Collins, in her official capacity as Complex Manager for the Leavenworth National Fish Hatchery Complex, Defendants-Appellees.

No. 09-35531.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 4, 2010.

Filed Dec. 7, 2010.

Brian A. Knutsen, Richard A. Smith, and Bridget Baker-White, Smith & Lowney, PLLC, Seattle, WA, for the plaintiff-appellant.

John C. Cruden, Acting Assistant Attorney General, Thekla Hansen-Young, Ellen Durkee, J. Brett Grosko, and David C. Shilton, Attorneys, Environment & Natural Resources Division, Department of Justice, Washington, DC, Nolan Shishido, of Counsel, Office of Regional Solicitor, Department of the Interior, for the defendants-appellees.

Appeal from the United States District Court for the Eastern District of Washington, Lonny R. Suko, Chief District Judge, Presiding. D.C. No. 2:05-cv-00181-LRS.

Before: A. WALLACE TASHIMA, RAYMOND C. FISHER and MARSHA S. BERZON, Circuit Judges.

Opinion by Judge BERZON; Partial Concurrence and Partial Dissent by Judge FISHER.

OPINION

BERZON, Circuit Judge:

We are faced once again with the far-reaching effects of federal hydroelectric projects in the Columbia River Basin on the region's native fish species. See, e.g., Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d 917 (9th Cir.2008); Nw. Res. Info. Ctr., Inc. v. Nw. Power Planning Council, 35 F.3d 1371 (9th Cir.1994). The fish at the heart of this particular controversy is not salmon, as in most of the earlier cases, and the potential threat to its survival and recovery is not a hydroelectric dam but a hatchery project intended to mitigate a dam's impact.

This action, brought by the Wild Fish Conservancy ("the Conservancy"), centers on a biological opinion ("BiOp") addressing the effects of the operations of the Leavenworth National Fish Hatchery ("the Hatchery") on the bull trout. See U.S. Fish & Wildlife Serv., Biological Opinion for the Operation and Maintenance of the Leavenworth National Fish Hatchery Through 2011 (2008) [hereinafter "2008 BiOp"]. The bull trout is listed under the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-44, as threatened throughout its range. See Determination of Threatened Status for Bull Trout in the Coterminous United States, 64 Fed.Reg. 58,910 (Nov. 1, 1999). The 2008 BiOp, prepared by the U.S. Fish and Wildlife Service ("the Service"), concluded that the Hatchery's operations from 2006 to 2011 were not likely to jeopardize the continued existence of the bull trout. Because the Service in several respects failed to articulate a rational connection between the facts found and the "no jeopardy" conclusion, we reverse and remand.

I.

A.

In 1938, Congress authorized the establishment of several salmon hatcheries toreplace spawning grounds in the upper Columbia River made inaccessible by the completion of the Grand Coulee Dam, which blocks fish migration. See Mitchell Act, ch. 193, 52 Stat. 345 (1938); 83 Cong. Rec. H6075 (May 2, 1938) (statement of Rep. Rich). The Leavenworth National Fish Hatchery was built on Icicle Creek, just south of Leavenworth, Washington, beginning in 1939. Although funding responsibility for the Hatchery has shifted among federal agencies and now rests with the Bureau of Reclamation, the Service has managed and operated the Hatchery continuously since its construction. Currently, the Hatchery operates as a single-species facility, rearing only spring-run Chinook salmon.¹ Initially, salmon were trapped in the Columbia River and hauled to the Hatchery to spawn. The Hatchery no longer imports salmon into Icicle Creek, relying entirely on returning adult salmon to meet its production targets.

Unfortunately, and somewhat ironically, the Hatchery itself blocks fish passage in Icicle Creek (the "Creek"). When the Hatchery was constructed, a canal was built alongside the Creek; the Creek's natural channel is now called the "historic channel." The canal culminates in a concrete spillway; fish can travel downstream over the spillway but not upstream. Fish whose upstream passage is blocked by the spillway gather in a deep pool at its base (the "spillway pool"), and from there the returning salmon, as well as the occasional interloper, ascend a fish ladder to the Hatchery's holding ponds. Adult salmon in the holding ponds are killed and the females' eggs removed and incubated. The offspring are reared in the holding ponds and eventually released into Icicle Creek.

Unimpeded, the Creek's historic channel would allow fish to circumvent the spillway and swim upstream. Passage through the historic channel is blocked, however, at the two points at which the historic channel meets the canal: At the top of the historic channel, radial gates, known as "dam 2," divert water from the historic channel to the canal, and, when closed, also block fish passage through the historic channel. At the bottom, a weir, or fence, known as "dam 5," prevents fish from entering the historic channel; boards can be removed from the weir to allow fish passage.

How does this configuration affect bull trout, the species with which we are concerned? Here's how:

Bull trout exhibit either resident or migratory behavior. Resident bull trout live out their lives in the streams in which they were spawned. They are significantly smaller than migratory bull trout, measuring only six to twelve inches at maturity, and produce fewer eggs. Migratory bull trout, in contrast, migrate as juveniles to larger bodies of water and return to their hatching place to spawn. They regularly reach twenty-four inches or more. Both resident and migratory bull trout can produce offspring that exhibit either resident or migratory behavior.

The Hatchery's barriers have seriously disrupted the migratory trout's migration and spawning activity. Between 1940 and 2001, migratory bull trout that hatched in the tributaries upstream of the Hatchery were able to migrate downstream over the Hatchery's spillway but were blocked entirely from returning upstream to spawn.Beginning in 2001, the Hatchery started adjusting its dams sporadically to allow occasional upstream fish passage for short periods of time. It also completed an environmental impact statement on a proposed habitat restoration project, a project that would include modifying dams 2 and 5 to allow for increased fish passage. That project has been delayed, however, and, according to the government, "is likely to take some time to implement."

Starting in 2006, after the Conservancy initiated this litigation, the Hatchery implemented two main measures to facilitate upstream passage for bull trout and other native fish. First, it began opening dams 2 and 5 at least partway for about ten months out of the year; passage remains blocked from approximately May 15 to July 7, during the salmon collection period. It also plans to use adaptive management approaches to open the dams early if enough salmon have been collected. Second, the Hatchery installed a trap near the fish ladder for the purpose of collecting bull trout and releasing them above the dams; any bull trout found in the salmon holding ponds will also be transported upstream.

B.

Section 7(a)(2) of the ESA requires federal agencies to consult with either the Fish and Wildlife Service or the National Marine Fisheries Service to "insure that any action authorized, funded, or carried out by [the] agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species." 16 U.S.C. § 1536(a)(2). The duty to consult applies to "ongoing agency action[s]," Pac. Rivers Council v. Thomas, 30 F.3d 1050, 1053 (9th Cir.1994), as well as future actions. An "ongoing agency action" exists if the action "comes within the agency's decisionmaking authority and remains so." W. Watersheds Project v. Matejko, 468 F.3d 1099, 1109 (9th Cir.2006) (internal quotation omitted).

Formal section 7 consultation begins when the "action agency" (here, the Service in its capacity as the operator of the Hatchery) transmits a written request to the "consulting agency" (here, the Service in its consulting capacity). See 50 C.F.R. § 402.14(c); Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1223 (9th Cir.2008). The consulting agency then issues a biological opinion evaluating the "current status of the listed species" and the "effects of the action and cumulative effects on the listed species," and offering a conclusion "as to whether the action, taken together with cumulative effects, is likely to jeopardize the continued existence of listed species." 50 C.F.R. § 402.14(g). To "jeopardize the continued existence" of a species is to "engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species." Id. § 402.02. "[T]he jeopardy regulation requires [the Service] to consider both recovery and survival impacts." Nat'l Wildlife Fed'n, 524 F.3d at 931.

Aside from making a jeopardy determination, the consulting agency must also consider whether the action will implicate another ESA provision, the general prohibition on "tak[ing]" of endangered species. ESA § 9, 16 U.S.C. § 1538. The ESA defines "take" as "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). As authorized by ESA section 4(d), 16 U.S.C. § 1533(d), the Service has issued regulations extending the take prohibition to threatened species, with certain exceptions.See 50 C.F.R. § 17.31. The take prohibition applies generally to bull...