Audubon Soc'y of Portland v. Nat'l Marine Fisheries Serv.

• Citation: 849 F.Supp.2d 1017
• Decision Date: 29 July 2011
• Docket Number: No. 03:11–cv–00494–HU.,03:11–cv–00494–HU.
• Parties: AUDUBON SOCIETY OF PORTLAND and Willamette Riverkeeper, Plaintiffs, v. NATIONAL MARINE FISHERIES SERVICE and U.S. Army Corps Engineers, Defendants. Port of Portland, Intervenor.
• Court: U.S. District Court — District of Oregon

849 F.Supp.2d 1017

AUDUBON SOCIETY OF PORTLAND and Willamette Riverkeeper, Plaintiffs,

v.NATIONAL MARINE FISHERIES SERVICE and U.S. Army Corps Engineers, Defendants.

Port of Portland, Intervenor.

No. 03:11–cv–00494–HU.

United States District Court, D. Oregon.

July 29, 2011.

Daniel J. Rohlf, Lewis & Clark Law School, Portland, OR, for Plaintiffs.

Kevin William McArdle, U.S. Department of Justice, Environment & Natural Resources Division, Wildlife & Marine Resources Section, Washington, DC, for Defendants.

Beverly C. Pearman, Peter D. Sax, Stoel Rives LLP, Portland, OR, for Intervenor.

ORDER ON PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

HUBEL, United States Magistrate Judge:

This matter is before the court on the plaintiffs' Motion for Preliminary Injunction and supporting documents, Dkt. 5–8. The defendants have filed a response in opposition to the motion, Dkt. 19–22; the Intervenor has filed an opposition to the motion, Dkt. 14–18; and the plaintiffs have filed a reply, Dkt. 23, 24 & 28. The court heard oral argument on the motion on July 25, 2011, and took the motion under advisement at that time. Having considered all of the parties' briefs and declarations, and the arguments of counsel, I deny the motion.

I. INTRODUCTION

On April 22, 2011, the plaintiffs Audubon Society of Portland and Willamette Riverkeeper filed a Complaint for Declaratory and Injunctive Relief against the defendants National Marine Fisheries Service (“NMFS”) ¹ and U.S. Army Corps of Engineers (“the Corps”). Dkt. # 1. The impetus for the filing of the Complaint is dredging activity scheduled to take place between river miles 2.1 and 2.4 on the Lower Willamette River between July 1 and October 31, 2011 (the “in-water work window” for that portion of the river).² The dredging action proposed by the Corps would remove some 75,000 cubic yards of sediment that has built up in the “Post Office Bar” area on the east side of the Willamette River, to return the channel in this location to its intended depth and width. The removed sediment would be transported by barge for disposal on West Hayden Island. According to the plaintiffs, the dredges “would work up to 7 days a week and 24 hours a day during one month of the in-water work window.” Dkt. # 1, ¶ 33.

On May 13, 2010, NMFS issued a biological opinion (the “BiOp”) on the proposed dredging. See Dkt. # 8, Jolliffe Decl., Ex. 2. In the BiOp, NMFS concluded the proposeddredging action was not likely to jeopardize the continued existence of several species of salmon and steelhead currently listed as threatened species, or to damage their critical habitat. These species of fish, characterized by the plaintiffs as “evolutionarily significant units (ESUs),” include Upper Willamette River Chinook salmon ( Oncorhynchus tshawytscha ), Lower Columbia River Chinook salmon, Lower Columbia River steelhead ( O. mykiss ), Upper Willamette River steelhead, and Lower Columbia River coho salmon ( O. Kisutch ) (collectively, the “Pacific salmonids” or the “listed species”). Id., cover letter; Dkt. # 1, ¶ 2.

In the plaintiffs' Complaint, they allege the Corps has a duty to comply with the Endangered Species Act, 16 U.S.C. § 1531, et seq. (“ESA”), prior to authorizing any dredging activity that may affect “listed species or designated critical habitat.” Dkt. # 1, ¶ 11. The plaintiffs allege the Corps violated the ESA and the Administrative Procedures Act, 5 U.S.C. § 701, et seq. (“APA”), “by failing to ensure that its approval of Post Office Bar dredging is not likely to jeopardize the continued existence of listed species or destroy or adversely modify designated critical habitat.” Dkt. # 1, ¶ 3.

The plaintiffs further allege that NMFS is “responsible for the lawful administration of the ESA with respect to anadromous fish, including those at issue in this case.” Dkt. # 1, ¶ 10. The plaintiffs claim the BiOp issued by NMFS is “illegal,” and NMFS has violated the ESA and APA by issuing the illegal BiOp. Id.

For these alleged violations, the plaintiffs seek the following relief:

[T]hat the Court declare the Corps has failed to ensure that its approval of the Post Office Bar dredge project BiOp avoids jeopardy to listed ESUs and avoids destruction or adverse modification of designated critical habitat; hold unlawful and set aside NMFS'[s] BiOp for this project and order NMFS to rescind the BiOp; order the Army Corps to reinitiate formal consultation with NMFS under Section 7 of the ESA; require NMFS to issue a valid BiOp for the Post Office Bar dredge project; and enjoin any dredging activity at Post Office Bar pending the Corps' and NMFS'[s] full compliance with the ESA.

Dkt. # 1, ¶ 4.

The plaintiffs have filed a motion for preliminary injunction to prevent the dredging action from going forward, and to prevent NMFS from authorizing any incidental taking of the Pacific salmonids, until the court has ruled on the merits of the plaintiffs' Complaint. Dkt. # 5.

II. STATUTORY AND REGULATORY FRAMEWORK

The ESA was enacted in 1973 to conserve endangered species and the ecosystems upon which they depend. 16 U.S.C. § 1531(b) (noting “the United States has pledged itself as a sovereign state in the international community to conserve to the extent practicable the various species of fish or wildlife and plants facing extinction”). The ESA requires “all Federal departments and agencies” to use “ all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to [the ESA] are no longer necessary.” 16 U.S.C. § 1531(c); Tennessee Valley Authority v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 2295, 57 L.Ed.2d 117 (1978) (emphasis in original). The Supreme Court observed that Congress's “plain intent” in enacting the ESA “was to halt and reverse the trend towards species extinction, whatever the cost. This is reflected ... in literally every section of the statute.” Id., 437 U.S. at 184, 98 S.Ct. at 2297. The Supreme Court has observed that the mandates of the ESA are to be afforded the highest priority by federal agencies. Id., 437 U.S. at 185, 98 S.Ct. at 2297 (“[T]he legislative history undergirding § 7 reveals an explicit congressional decision to require agencies to afford first priority to the declared national policy of saving endangered species.”).

Pursuant to section 7 of the ESA, in any non-exempt action where there is discretionary federal involvement or control,the involved federal agencies are required to consult with “the Secretary” ³ to ensure that the agency action “is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species ... us[ing] the best scientific and commercial data available.” 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.03. The term “[j]eopardize the continued existence of means 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.” 50 C.F.R. § 402.02. In using the “best scientific and commercial data available,” the agency is prohibited “from disregarding available scientific evidence that is in some way better than the evidence [it] relies on,” and it “cannot ignore available biological information.” Kern County Farm Bur. v. Allen, 450 F.3d 1072, 1080–81 (9th Cir.2006) (internal quotation marks, citations omitted).

Judge James A. Redden of this court explained the requirements of this agency “consultation” in National Wildlife Federation v. NMFS, Nos. 01–cv–640, 05–cv–23, 2005 WL 1278878 (D.Or. May 26, 2005), aff'd524 F.3d 917 (9th Cir.2008) (“NWF I ”):

During a section 7 consultation, the consulting agency must “[e]valuate the effects of the action and cumulative effects on the listed species or critical habitat.” 50 C.F.R. § 402.14(g)(3). The agency must “[f]ormulate its biological opinion as to whether the action, taken together with cumulative effects, is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat.” Id.

“Cumulative effects” are “those effects of future State or private activities, not involving Federal activities, that are reasonably certain to occur within the action area of the Federal action subject to consultation.” 50 C.F.R. § 402.02. “Effects of the action” are “the direct and indirect effects of an action on the species or critical habitat, together with the effects of other activities that are interrelated or interdependent with that action, that will be added to the environmental baseline.” [ Id.]

The environmental baseline “includes all past and present impacts [on listed species and their critical habitat] of all Federal, State, private, and other human activities in the action area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation, and the impact of State or private actions which are contemporaneouswith the consultation in process.” [ Id.]

NWF I, 2005 WL 1278878, at *6.

Judge Redden further explained that if the biological opinion, or “BiOp,” required by section 7 concludes that a proposed agency action “will jeopardize a listed species, the opinion must include the reasonable and prudent alternatives to the agency's action plans.” NWF I, 2005 WL 1278878, at *5.

A biological opinion “should address both the jeopardy and critical habitat prongs of Section 7 [of the ESA], by considering the current status of the species, the environmental baseline, the effects of the proposed action, and the cumulative effects of the proposed action.” Gifford Pinchot Task Force v. U.S. Fish & Wildlife Service, 378 F.3d 1059, 1063 (9th Cir.2004) (citing 50 C.F.R. § 402.14(g)(2)-(3)).

NWF I, 2005 WL 1278878,...