Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv.
| Decision Date | 04 May 2016 |
| Docket Number | Case No. 3:01-cv-00640-SI |
| Citation | 184 F.Supp.3d 861 |
| Parties | National Wildlife Federation, et al., Plaintiffs, v. National Marine Fisheries Service, et al., Defendants. |
| Court | U.S. District Court — District of Oregon |
Todd D. True and Stephen D. Mashuda, Earthjustice , 705 Second Avenue, Suite 203, Seattle, WA 98104; Daniel J. Rohlf, Earthrise Law Center , Lewis & Clark Law School, 10015 S.W. Terwilliger Boulevard, MSC 51, Portland, OR 97219. Of Attorneys for Plaintiffs.
Ellen F. Rosenblum, Attorney General, and Stephanie M. Parent and Nina R. Englander, Assistant Attorneys General, Oregon Department of Justice , 1515 S.W. Fifth Avenue, Suite 410, Portland, OR 97201. Of Attorneys for Plaintiff-Intervenor State of Oregon.
David J. Cummings and Geoffrey M. Whiting, Nez Perce Tribe, Office of Legal Counsel , P.O. Box 305, Lapwai, ID 83540. Of Attorneys for Amicus Nez Perce Tribe.
Billy J. Williams, United States Attorney, and Coby Howell, Senior Trial Attorney, United States Department of Justice, United States Attorney's Office , 1000 S.W. Third Avenue, Portland, OR 97204; John C. Cruden, Assistant Attorney General, Seth M. Barsky, Section Chief, and Michael R. Eitel and Andrea Gelatt, Trial Attorneys, United States Department of Justice, Environment & Natural Resources Division, Wildlife & Marine Resources Section , 999 18th Street, South Terrace, Suite 370, Denver, CO 80202; Romney S. Philpott, Trial Attorney, United States Department of Justice, Environment & Natural Resources Division, Natural Resources Section , 601 D Street NW, Washington, DC 20004. Of Attorneys for Federal Defendants.
Lawrence G. Wasden, Attorney General, Office of the Attorney General, State of Idaho ; Clive J. Strong, Division Chief, and Clay R. Smith and Steven W. Strack, Deputy Attorneys General, Natural Resources Division , P.O. Box 83720, Boise, ID 83720. Of Attorneys for Defendant-Intervenor State of Idaho.
Timothy C. Fox, Attorney General, and Jeremiah D. Weiner, Assistant Attorney General, Montana Department of Justice, Office of the Attorney General , 215 North Sanders Street, P.O. Box 201401, Helena, MT 59620; Mark L. Stermitz, Crowley Fleck , PLLP, 305 South Fourth Street East, Suite 100, Missoula, MT 59801. Of Attorneys for Defendant-Intervenor State of Montana.
Michael S. Grossmann, Senior Counsel, State of Washington, Office of the Attorney General , P.O. Box 40100, Olympia, WA 98504. Of Attorneys for Defendant-Intervenor State of Washington.
Julie A. Weis, Haglund Kelley LLP, 200 S.W. Market Street, Suite 1777, Portland, OR 97201; William K. Barquin, Tribal Legal Department, Kootenai Tribe of Idaho , Portland Office, 1000 S.W. Broadway, Suite 1060, Portland, OR 97205. Of Attorneys for Defendant-Intervenor Kootenai Tribe of Idaho.
Stuart M. Levit and John Harrison, Confederated Salish and Kootenai Tribes , 42487 Complex Boulevard, P.O. Box 278, Pablo, MT 59855. Of Attorneys for Defendant-Intervenor Confederated Salish and Kootenai Tribes.
Jay T. Waldron, Walter H. Evans, III, and Carson Bowler, Schwabe, Williamson & Wyatt , P.C., Pacwest Center, 1211 S.W. Fifth Avenue, Suite 1900, Portland, OR
97204. Of Attorneys for Defendant-Intervenor Inland Ports and Navigation Group.
Beth S. Ginsberg and Jason T. Morgan, Stoel Rives LLP, 600 University Street, Suite 3600, Seattle, WA 98101. Of Attorneys for Defendant-Intervenor Northwest RiverPartners.
James L. Buchal, Murphy & Buchal LLP, 3425 S.E. Yamhill Street, Suite 100, Portland, OR 97214. Of Attorneys for Amicus Columbia Snake River Irrigators Association.
John W. Ogan, Karnopp Petersen LLP, 1201 N.W. Wall Street, Suite 200, Bend, OR 97701. Of Attorneys for Amicus Confederated Tribes of the Warm Springs Reservation of Oregon.
Brent H. Hall, Office of Legal Counsel, Confederated Tribes of the Umatilla Indian Reservation , 46411 Timíne Way, Pendleton, OR 97801. Of Attorneys for Amicus Confederated Tribes of the Umatilla Indian Reservation.
Patrick D. Spurgin, 411 North Second Street, Yakima, WA 98901. Of Attorneys for Amicus Yakama Nation.
Brian C. Gruber and Beth Baldwin, Ziontz Chestnut , 2101 Fourth Avenue, Suite 1230, Seattle, WA 98121. Of Attorneys for Amicus Confederated Tribes of the Colville Reservation.
INTRODUCTION AND OVERVIEW...––––
STATUTORY FRAMEWORK...––––
BACKGROUND...––––
STANDARD OF REVIEW...––––
DISCUSSION...––––
CONCLUSION...––––
In this lawsuit, Plaintiffs1 raise two primary questions. First, did Defendant NOAA Fisheries2 act arbitrarily and capriciously when it issued its latest biological opinion (the "2014 BiOp"), concluding that the operations of the Federal Columbia River Power System ("FCRPS") do not violate the Endangered Species Act of 1973,3 based on the 73 "reasonable and prudent alternatives" described in the 2014 BiOp?4 Second, did Defendants U.S. Army Corps of Engineers (the "Corps") and U.S. Bureau of Reclamation ("BOR") violate the National Environmental Policy Act of 19695 by failing to prepare an environmental impact statement in connection with their records of decision implementing the 73 reasonable and prudent alternatives described in the 2014 BiOp? The answers to both questions are yes.
The Columbia River is the fourth largest river on the North American continent. Along with its primary tributary, the Snake River, the Columbia flows for more than 1,200 miles from the Canadian Rockies to the Pacific Ocean, through seven states and one Canadian province in the Pacific Northwest. Every year, salmon and steelhead (collectively, "salmonids") travel up and down the Columbia and Snake Rivers, hatch in fresh water, migrate downstream to the Pacific on their way to adulthood, and later return upstream to spawn and die.6 This is the natural course of Columbia and Snake River salmonids. They also must attempt to survive the FCRPS, which consists of hydroelectric dams, powerhouses, and associated reservoirs on the Columbia and Snake Rivers.
In 1991 the Snake River sockeye were listed as "endangered" under the Endangered Species Act,7 and in 1992 the Snake River fall chinook joined the list as "threatened."8 In 1992, NOAA Fisheries (then known as the "National Marine Fisheries Service" or "NMFS") issued its first biological opinion relating to the FCRPS and in 1993, NOAA Fisheries issued a biological opinion that concluded that the operations of the FCRPS would not "jeopardize the listed species."9 The Idaho Department of Fish and Game challenged that opinion in a lawsuit brought in the United States District Court for the District of Oregon.
The court granted summary judgment in favor of the plaintiff. The court ruled that the 1993 biological opinion was arbitrary and capricious because NOAA Fisheries failed adequately to explain several of the critical assumptions supporting its jeopardy analysis and conclusion.10 In the court's decision, U.S. District Judge Malcolm F. Marsh wrote:
NMFS has clearly made an effort to create a rational, reasoned process for determining how the action agencies are doing in their efforts to save the listed salmon species. But the process is seriously, "significantly," flawed because it is too heavily geared towards a status quo that has allowed all forms of river activity to proceed in a deficit situation—that is, relatively small steps, minor improvements and adjustments—when the situation literally cries out for a major overhaul. Instead of looking for what can be done to protect the species from jeopardy, NMFS and the action agencies have narrowly focused their attention on what the establishment is capable of handling with minimal disruption .11
Judge Marsh's decision was vacated on appeal as moot because NOAA Fisheries had issued a subsequent biological opinion that found that the FCRPS did, in fact, jeopardize the listed species.12 After further litigation and additional agency action that is not directly relevant here, NOAA Fisheries issued a new biological opinion on December 21, 2000 (the "2000 BiOp"), which superseded its previous biological...
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