McKenzie Flyfishers v. McIntosh, 031315 ORDC, 6:13-cv-02125-TC

Docket Nº6:13-cv-02125-TC
Opinion JudgeTHOMAS M. COFFIN, Magistrate Judge.
Party NameMcKENZIE FLYFISHERS, STEAMBOATERS Plaintiffs, v. BRUCE McINTOSH, SCOTT PATTERSON, and OREGON DEARTMENT OF FISH AND WILDLIFE Defendants.
Case DateMarch 13, 2015
CourtUnited States District Courts, 9th Circuit, United States District Court (Oregon)

McKENZIE FLYFISHERS, STEAMBOATERS Plaintiffs,

v.

BRUCE McINTOSH, SCOTT PATTERSON, and OREGON DEARTMENT OF FISH AND WILDLIFE Defendants.

No. 6:13-cv-02125-TC

United States District Court, D. Oregon.

March 13, 2015

OPINION AND ORDER

THOMAS M. COFFIN, Magistrate Judge.

Presently before the court is plaintiffs' McKenzie Flyfishers and Steamboaters ("McKenzie Flyfishers") Motion for Summary Judgment and Injunctive Relief and defendants' Oregon Department of Fish and Wildlife (ODFW); Bruce McIntosh, Acting Fish Division Director for ODFW; and Scott Patterson, Fish Propagation Program Manager for ODFW (collectively "defendants" or "ODFW"), Cross-motion for Summary Judgment. Defendants also move to strike certain evidence submitted by plaintiffs. Plaintiffs seek to compel defendants to comply with the Endangered Species Act (ESA) in operating the McKenzie Hatchery. Oral argument was held on March 2, 2015. For the reasons set forth below, plaintiffs' Motion for Summary Judgment and Injunctive Relief (73) is denied, defendants' Motion to Strike is denied, and Defendants' Cross-motion for Summary Judgment (87) is granted in part, as explained infra.

BACKGROUND

The McKenzie River originates from Clear Lake in the Cascade Mountains in Oregon and flows roughly ninety miles to its confluence with the Willamette River. The McKenzie River basin supports the largest run of wild spring Chinook salmon in the upper Willamette River basin. The Army Corps of Engineers (Corps) built or maintains thirteen dams in the Willamette River basin, including the Cougar Dam on the South Fork of the McKenzie River, the Smith and Trail Bridge Dams on the mainstem of the McKenzie River, and the Blue River Dam on Blue River, a tributary to the McKenzie River. AR035802, 806. The construction of these dams eliminated spawning habitat for spring Chinook salmon that had historically returned to the areas above the dams to spawn. AR035792.

To mitigate for this loss, the Corps funds five hatcheries that rear and release hatchery fish, including the McKenzie Fish Hatchery, where defendants spawn, raise, and release spring Chinook salmon smolts into the McKenzie River, Lower Columbia River, and Coast Fork of the Willamette River. Id., AR035850. Several years after being released into the McKenzie River, both wild and hatchery-bred adult spring Chinook salmon return to the McKenzie Fish Hatchery via one of the two fish ladders that extend into the river. AR000013. The hatchery is characterized as an "integrated" program, meaning that it uses wild hatchery broodstock, with a goal of using 600 fish. AR000012, 59.

Plaintiff McKenzie Flyfishers is a non-profit, membership-based, fly fishing conservation group located in Eugene, Oregon that seeks to protect and increase runs of wild spring Chinook salmon in the McKenzie River basin. Plaintiff Steamboaters is also a membership-based, fly fishing conservation group that advocates for wild fish in the Umpqua River basin and also works to support conservation groups that have common purposes. Plaintiffs claim that the release of spring Chinook salmon into the McKenzie River adversely affects the productivity and recovery of wild spring Chinook salmon by competing with the wild salmon for food, habitat, and spawning space, by potentially spreading disease to the wild salmon, and by creating offspring have reduced fitness and reproductive success when hatchery salmon spawn with wild salmon. Pl.'s First Am. Compl. For Decl. and Inj. Relief 1, 8.

LEGAL STANDARD

I. Summary Judgment

Federal Rule of Civil Procedure 56 allows for the granting of summary judgment if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitied to judgment as a matter of law. Fed.R.Civ.P. 56(c). There must be no issue of material fact. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 (1986).

The movant has the initial burden of establishing that no genuine issue of material fact exists or that a material fact essential to the nonmovant's claim is missing. Celotex Corp. v. Catrett , 477 U.S. 317, 322-24 (1986). Once the movant has met its burden, then the burden shifts to the nonmovant to produce specific evidence to establish a genuine issue of material fact or to establish the existence of all facts material to the claim. Id .; see also, Bahn v. NME Hosp., Inc. , 929 F.2d 1404, 1409 (9th Cir. 1991); Nissan Fire & Marine Ins. Co., Ltd., v. Fritz Cos., Inc. , 210 F.3d 1099, 1105 (9th Cir. 2000). In order to meet this burden, the nonmovant "may not rely merely on allegations or denials in its own pleading, " but must instead "set out specific facts showing a genuine issue of fact for trial." Fed.R.Civ.P. 56(e).

Material facts which preclude entry of summary judgment are those which, under applicable substantive law, may affect the outcome of the case. Anderson , 477 U.S. at 248. Factual disputes are genuine if they "properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id . On the other hand, if, after the court has drawn all reasonable inferences in favor of the nonmovant, "the evidence is merely colorable, or is not significantly probative, " summary judgment may be granted. Id.

II. Injunction

The EAS provides that a court may "enjoin any person, including... any [] governmental instrumentality... who is alleged to be in violation of any provision of this Act...." 16 U.S.C. § 1540(g) (1). A plaintiff seeking an injunction must establish that he is likely to suffer irreparable harm, remedies such as damages are inadequate to compensate for that harm, the balance of the equities tips in his favor, and that an injunction is in the public interest." Monsanto Co. V. Geertson Seed Farms, 561 U.S. 139, 130 S.Ct. 2743, 2761 (2010). Where injury to the environment is "sufficiently likely... the balance of harms will usually favor the issuance of an injunction to protect the environment." Amoco Prod. Co. v. Vill. of Gambell , 480 U.S. 531, 545 (1987).

In cases involving the ESA, the balance of hardships is skewed in favor of injunctive relief even further than in other matters involving environmental harm. Nat'l Wildlife Fed'n v. Burlinaton N. R.R., Inc. , 23 F.3d 1508, 1510-11 (9th Cir. 1994). "In cases involving the ESA, Congress removed from the courts their traditional equitable discretion in injunction proceedings of balancing the parties' competing interests." Id. at 1511 (citations omitted). "In Congress's view, projects that jeopardize the continued existence of endangered species threaten incalculable harm; accordingly, it decided that the balance of hardships and the public interest tip heavily in favor of endangered species" and this court "may not use equity's scales to strike a different balance." Sierra Club, 816 F.2d at 1383. However, mere allegations of ESA violations are insufficient and a plaintiff must make a showing that such violations are likely. Nat'l Wildlife Fed'n , 23 F.3d at 1511.

DISCUSSION

Plaintiffs move the court for summary judgment and claim that defendants' operation of the McKenzie Hatchery causes "take" of threatened fish species in violation of § 9 of the ESA. Specifically, plaintiffs claim that defendants "violated and will continue to violate Section 9 of the [ESA]" by releasing hatchery spring Chinook salmon smolts in excess of ten percent proportion of hatchery-origin spawning (pHOS) into the McKenzie River basin. Pl.'s First Am. Compl. For Decl. and Inj. Relief at 1. Consequently, plaintiffs request that the court enjoin defendants from releasing more than 360, 000 hatchery smolts into the McKenzie River basin until the pHOS of spring Chinook salmon is ten percent or less. Id. at 32, 35. Plaintiffs also argue that until there is an approved Hatchery and Genetics Management Plan (HGMP) in place, defendants are in violation of § 9 of the ESA by capturing, collecting, and handling wild spring Chinook salmon that swim into the McKenzie Hatchery. Id. at 19.

Defendants move the court for summary judgment on two separate grounds. First, defendants argue that plaintiffs have not created and cannot create a material issue of fact about whether release of more than 360, 000 hatchery spring Chinook smolts annually will violate the ESA § 9 "take" standard. Second, defendants argue their McKenzie Hatchery operations are protected from liability under § 9 by the 2008 Biological Opinion (BiOp) and its incidental take statement (ITS) issued by National Marine Fisheries Service (NMFS). State Def.'s Cross-Mot. for Summ. J. and Opp'n to Pl.'s Mot. for Summ. J. 1.

I. Defendants' Liability Under the ESA

The Purpose of the ESA is "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation" of such species. 16 U.S.C. § 1531(b).

Section 9 of the ESA states that no entity may "take" individual members of an endangered species. 16 U.S.C. § 1538(a) (1); Or....

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