Fed'n v. Nat'l Marine Fisheries Serv.

• Decision Date: 02 August 2011
• Docket Number: No. CV 01–00640–RE.,CV 01–00640–RE.
• Citation: 839 F.Supp.2d 1117
• Parties: NATIONAL WILDLIFE FEDERATION, et al., Plaintiffs, v. NATIONAL MARINE FISHERIES SERVICE, et al., Defendants.
• Court: U.S. District Court — District of Oregon

839 F.Supp.2d 1117

NATIONAL WILDLIFE FEDERATION, et al., Plaintiffs,

v.NATIONAL MARINE FISHERIES SERVICE, et al., Defendants.

No. CV 01–00640–RE.

United States District Court, D. Oregon.

Aug. 2, 2011.

Todd D. True, Stephen D. Mashuda, Earthjustice Legal Defense Fund, Seattle, WA, Daniel J. Rohlf, Lewis & Clark Law School, Portland, OR, for Plaintiffs.

Bridget Kennedy McNeil, Seth M. Barsky, Bridget Kennedy McNeil, U.S. Department of Justice, Denver, CO, Stephen J. Odell, United States Attorney's Office, Portland, OR, Thomas L. Sansonetti, U.S. Department of Justice, Washington, DC, Coby Healy Howell, Coby Healy Howell, U.S. Department of Justice c/o U.S. Attorney's Office, Portland, OR, Michael S. Grossmann, Assistant Attorney General, Olympia, WA, for Defendants.

OPINION AND ORDER

REDDEN, District Judge:

This Opinion and Order addresses the validity of the 2008 and 2010 Biological Opinions (“2008/2010 BiOp”) issued by NOAA Fisheries ¹ to the U.S. Army Corps of Engineers (“the Corps”), and the U.S. Bureau of Reclamation (“BOR”) (collectively, “Federal Defendants”) under Section 7 of the Endangered Species Act (“ESA”), 16 U.S.C. § 1536. Section 7 requires Federal Defendants to “insure” that the operation of the Federal Columbia River Power System (“FCRPS”), which is comprised of 14 sets of hydroelectric dams, powerhouses, and associated reservoirs, “is not likely to jeopardize the continued existence” of any species listed under the Act. Id. § 1536(a)(2). NOAA Fisheries concludes that through 2018, FCRPS operations are not likely to jeopardize the continued existence of any listed species, based on measures to be implemented by Federal Defendants to mitigate for the significant salmon mortality caused by the existence and operation of the hydroelectric power system.

Federal Defendants have failed, however, to identify specific mitigation plans to be implemented beyond 2013. Because the 2008/2010 BiOp's no jeopardy conclusion is based on unidentified habitat mitigation measures, NOAA Fisheries' opinion that FCRPS operations after 2013 will not jeopardize listed species is arbitrary and capricious.

Accordingly, I DENY Federal Defendants' Cross–Motion for Summary Judgment (doc. # 1556), and Supplemental Cross–Motion for Summary Judgment (doc. # 1805), Northwest River Partners' Motion for Summary Judgment (doc. # 1539); Confederated Salish and Kootenai Tribes' Joint and Cross–Motions for Summary Judgment (docs. # 1542 and 1551); and Washington's and Idaho's Cross–Motion for Summary Judgment (doc. # 1553), and Supplemental Motion for Summary Judgment (doc. # 1819). I GRANT in part, and DENY in part, NWF's Motion for Summary Judgment (doc. # 1498), and Supplemental Motion for Summary Judgment (doc. # 1793), and Oregon's Motion for Summary Judgment (doc. # 1507), and Supplemental Motion for Summary Judgment (doc. # 1801).

I remand the 2008/2010 BiOp to NOAA Fisheries to reevaluate the Federal Defendants' reliance on unidentified mitigation measures. Because the 2008/2010 BiOp does, however, identify specific and beneficial mitigation measures through the end of 2013, this BiOp and the accompanying incidental take statement shall stay in place until then. No later than January 1, 2014, NOAA Fisheries shall produce a new or supplemental BiOp that relies only on identified mitigation measures that are reasonably certain to occur. During the remand period, Federal Defendants shall fund and implement all of the reasonable and prudent alternative actions set forth in the 2008/2010 BiOp, including the Memoranda of Agreement they have executed with the various sovereigns. In addition, Federal Defendants shall continue to collaborate with the sovereigns to develop mitigation actions to be included in the proposed action, and to develop data to support any proposed mitigation.

Finally, I GRANT Plaintiffs' Corrected Motion for Preliminary Injunction (doc. # 1627) with respect to spill. Federal Defendants shall implement spring and summer spill operations in a manner consistent with this court's previous spill orders. I DENY Plaintiffs' motion, however, with respect to flow augmentation and reservoir storage operations. To the extent possible, Federal Defendants shall operate the FCRPS to meet the flow augmentation objectives in the 2008/2010 BiOp.

The Endangered Species Act

Section 7(a)(2) of the ESA requires each federal agency 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). If a federal agency determines that a proposed action “may affect” a listed marine or anadromous species or its critical habitat, the agency is required to engage in a formal consultation with NOAA Fisheries. 50 C.F.R. § 402.14(a).

After consultation, NOAA Fisheries issues a biological opinion evaluating whether the proposed action “is likely to jeopardize the continued existence of listed species.” 16 U.S.C. §§ 1536(a)(4), (b); 50 C.F.R. § 402.14. An action jeopardizes the continued existence of a listed species if it “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.” 50 C.F.R. § 402.02. NOAA Fisheriesmust base its biological opinion on the “best scientific and commercial data available.” 16 U.S.C. § 1536(a)(2).

If NOAA Fisheries concludes a proposed action will jeopardize a listed species, the opinion must include reasonable and prudent alternatives (“RPAs”) to the agency's plans that will likely avoid jeopardy. Id. § 1536(b)(4). If the agency concludes that a proposed action is not likely to jeopardize the continued existence of a listed species but determines that the action will result in the take of listed species, the agency must issue an incidental take statement (“ITS”). Id. An ITS authorizes a limited take of listed species that would otherwise violate Section 9's “take” prohibition, establishes the limit of any taking of the species, and specifies measures to minimize any taking. 16 U.S.C. §§ 1536(b)(4), 1538; 50 C.F.R. § 402.14(i).

Background²

A. 2000 BiOp

In 2000, NOAA Fisheries issued its fourth biological opinion addressing the impact of the FCRPS on endangered salmon species. This court rejected the 2000 BiOp because the proposed mitigation actions and long-term comprehensive monitoring program were not reasonably certain to occur. The court, however, allowed Federal Defendants' ITS to remain to avoid a serious disruption of hydroelectric power and an unmanageable flood of litigation arising from the otherwise unlawful taking of the endangered species.

During the remand period, the court regularly met with the parties to monitor progress. It became apparent that there was no federal funding for the mitigation and monitoring measures described in the 2000 BiOp.

In the summer of 2004, the Bonneville Power Administration (“BPA”) and the Corps decided to curtail summer spill at four FCRPS dams, even though the 2000 BiOp had cited summer spill as “the highest priority” for improving salmon survival and avoiding jeopardy. 2000 BiOp at 9–82. NOAA Fisheries acknowledged that their proposal could kill up to 376,000 listed fish, but concluded the spill reduction was consistent with the 2000 BiOp.

In July 2004, the court enjoined Federal Defendants' spill proposal, noting that each of their proposed mitigation measures was already required by the 2000 BiOp. In addition, NOAA Fisheries' analysis of the “new” or additional flow augmentation was based on flawed assumptions. The court found that the curtailment of spill would jeopardize the species.

B. 2004 BiOp

In 2004, NOAA Fisheries issued a new biological opinion, concluding operation of the FCRPS would not jeopardize the continued existence of any listed species because the dams were built before enactment of the ESA and therefore, the dams were part of the environmental baseline. NOAA Fisheries interpreted the ESA regulations so as (1) to eliminate the need to consult on the FCRPS operations that NOAA Fisheries considered nondiscretionary, and (2) to analyze the effects of the proposed dam operations on listed species in a manner that did not take into account many of the adverse effects of dam operations. In addition, NOAA Fisheries announced that hatchery produced salmonids would be counted as wild fish in determining whether or not a stock required ESA protection.

This court found that biological opinion arbitrary and capricious, and ordered Federal Defendants to continue spring and summer spills. NOAA Fisheries appealed. The Ninth Circuit Court of Appeals, however, affirmed the court's Opinion and Order in all respects. Since then, the Corps has implemented spring and summer spill operations.

In October 2005, the court remanded the 2004 BiOp to NOAA Fisheries for further Section 7 consultation. This court also ordered Federal Defendants to collaborate with the sovereigns to (1) develop the proposed action, and (2) reach agreement or narrow the areas of disagreement on scientific and technical information. Federal Defendants appealed, but the Ninth Circuit affirmed the remand order.

C. 2008 BiOp

In 2008, BPA, the Corps, and BOR entered into ten-year agreements with the States of Idaho and Montana, the Confederated Tribes of the Warm Springs Reservation of Oregon, the Confederated Tribes of the Umatilla Indian Reservation, the Confederated Tribes and Bands of the Yakama Nation, the Confederated Tribes of the Colville Reservation, and the Columbia River Inter–Tribal Fish Commission (“CRITFC”) called the Columbia Basin Fish Accords (“Fish Accords”). Under the Fish Accords, the Action Agencies committed to spending up to $933 million on salmon mitigation measures over the life of the BiOp. In return, the Fish Accord parties signed Memoranda of Agreement (“MOAs”...