NAT. WILDLIFE FEDERATION v. NAT. MARINE FISHERIES
| Decision Date | 09 April 2007 |
| Docket Number | 06-35019.,No. 06-35011,06-35011 |
| Citation | 481 F.3d 1224 |
| Parties | NATIONAL WILDLIFE FEDERATION; Idaho Wildlife Federation; Washington Wildlife Federation; Sierra Club; Trout Unlimited; Pacific Coast Federation of Fishermen's Associations; Institute for Fisheries Resources; Idaho Rivers United; Idaho Steelhead and Salmon United; Northwest Sportfishing Industry Association; Salmon for All; Columbia Riverkeeper; NW Energy Coalition; Federation of Fly Fishers; American Rivers, Inc.; Eastern Oregon Irrigators Association, Plaintiffs-Appellees, v. NATIONAL MARINE FISHERIES SERVICE; United States Army Corps of Engineers; U.S. Bureau of Reclamation; Donald L. Evans, in his official capacity as Secretary of Commerce; NOAA Fisheries; D. Robert Lohn, in his official capacity as Regional Direct of NOAA Fisheries, Defendants, Northwest Irrigation Utilities; Public Power Council; BPA Customer Group; Franklin County Farm Bureau Federation; Grant County Farm Board Federation; Washington Farm Bureau Federation; Clarkson Golf & Country Club; State of Montana; Kootenai Tribe of Idaho, Defendant-Intervenors, and State of Oregon, Plaintiff-Intervenor-Appellee, State of Idaho, Defendant-Intervenor-Appellant. National Wildlife Federation; Idaho Wildlife Federation; Washington Wildlife Federation; Sierra Club; Trout Unlimited; Pacific Coast Federation of Fishermen's Associations; Institute for Fisheries Resources; Idaho Rivers United; Idaho Steelhead and Salmon United; Northwest Sportfishing Industry Association; Salmon for All; Columbia Riverkeeper; NW Energy Coalition; Federation of Fly Fishers; American Rivers, Inc.; Eastern Oregon Irrigators Association, Plaintiffs-Appellees, v. National Marine Fisheries Service; United States Army Corps of Engineers; U.S. Bureau of Reclamation, Defendants-Appellants, State of Oregon, Plaintiff-Intervenor-Appellee, and Donald L. Evans, in his official capacity as Secretary of Commerce; NOAA FISHERIES; D. Robert Lohn, in his official capacity as Regional Director of NOAA Fisheries, Defendants, Northwest Irrigation Utilities; Public Power Council; BPA Customer Group; Franklin County Farm Bureau Federation; Grant County Farm Board Federation; Washington Farm Bureau Federation; State of Idaho; Clarkson Golf & Country Club; State of Montana; Kootenai Tribe of Idaho, Defendant-Intervenors. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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Mark Eames, NOAA Office of General Counsel, Seattle, WA; Gayle Lear, Assistant Division Counsel, Northwestern Division, U.S. Army Corps of Engineers, Portland, OR; Kelly A. Johnson, Acting Assistant Attorney General, Fred Disheroon, Ruth Ann Lowery, Ellen J. Durkee, and Jennifer L. Scheller, Attorneys, Environment & Natural Resources Division, U.S. Department of Justice, Washington D.C., for the federal defendants-appellants.
Matthew A. Love and Sam Kalen, Van Ness Feldman, P.C., Seattle, WA, for defendant-appellant BPA Customer Group.
Lawrence G. Wasden, Attorney General, Clive J. Strong, Deputy Attorney General, and Clay R. Smith, Deputy Attorney General, State of Idaho, Boise, ID, for defendant-intervenor-appellant State of Idaho.
Todd D. True and Stephen D. Mashuda, Earthjustice, Seattle, WA; Daniel J. Rohlf, Pacific Environmental Advocacy Center, Portland, OR, for plaintiff-appellee National Wildlife Federation.
Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, David E. Leith, Assistant Attorney General, and Stephen K. Bushong, State of Oregon, Salem, OR, for plaintiff-intervenor-appellee State of Oregon.
Koward G. Arnett, Karnopp Petersen, LLP, Bend, Oregon; David J. Cummings, Nez Perce Tribe, Lapwai, Idaho; Christopher B. Leahy, Fredericks, Pelcyger & Hester, LLC, Louisville, CO; Tim Weaver, Law Offices of Tim Weaver, Yakima, WA, for amici curiae Treaty Tribes.
Robert D. Thornton and Paul S. Weiland, Nossaman, Guthner, Knox & Elliott, LLP, Irvine, CA, for amicus curiae National Association of Homebuilders.
Rob McKenna, Attorney General, and Michael S. Grossman, Assistant Attorney General, State of Washington, Olympia, WA, for amicus curiae State of Washington.
John C. Bruning, Attorney General, David D. Cookson, Assistant Attorney General, State of Nebraska, Lincoln, NE; Thomas R. Wilmoth, Special Assistant Attorney General, Fennemore Craig, P.C., Lincoln, NE, for amicus curiae State of Nebraska.
James L. Buchal, Murphy & Buchal LLP, Portland, OR, for amicus curiae Columbia Snake River Irrigators Association.
Russell C. Brooks, Bellevue, Washington; M. Reed Hopper and Scott A. Sommerdorf, Pacific Legal Foundation, Sacramento, CA, for amicus curiae Washington Farm Bureau Federation.
Before TASHIMA, THOMAS, and PAEZ, Circuit Judges.
These consolidated appeals bring us once more to the Pacific Northwest, for another round in the complex and long-running battle over salmon and steelhead listed under the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544. In this ESA action brought by the National Wildlife Federation and other plaintiffs (collectively "NWF"), we consider a November 2004 Biological Opinion ("2004 BiOp") addressing the effects of proposed operations of Federal Columbia River Power System ("FCRPS" or "Columbia River System") dams and related facilities on listed fish in the lower Columbia and Snake Rivers. The 2004 BiOp, issued by the agency formerly known as the National Marine Fisheries Service of the National Oceanic and Atmospheric Administration ("NMFS"),1 found that proposed FCRPS operations for 2004 through 2014 would not jeopardize the thirteen area salmonid species that are listed as threatened or endangered, nor adversely modify their critical habitat. NMFS and the State of Idaho (collectively "NMFS") appeal from the district court's determination that the 2004 BiOp was structurally flawed and from certain portions of its chosen remedy. We affirm.
The factual and procedural history of this case was detailed in our prior opinion. NWF v. NMFS, 422 F.3d 782, 800 (9th Cir.2005). As background, and for convenience of reference, we will briefly review the proceedings to date to place the present controversy in context.
Every year hundreds of thousands of salmon and steelhead travel up and down the Columbia River and its tributaries, hatching in fresh water, migrating downstream to the sea to achieve adulthood, and then returning upstream to spawn. The wild Pacific salmon population has significantly decreased in recent years, and a number of species of Columbia, Snake, and Willamette River salmon and steelhead are now protected by the Endangered Species Act.2 Each of the affected stocks migrates at a different time of the year to different parts of the Columbia Basin.
At issue in this case are the fall juvenile Chinook salmon and steelhead migrating downstream to the Pacific Ocean. These fish must pass a number of dams on their journey to the sea and suffer a very high mortality rate in doing so. Each dam in the migration corridor of the mainstream Snake and Columbia rivers has a bypass system. At some dams, the bypass consists of screens in front of the turbine intakes that divert the salmon and steelhead into a passageway through the dam and downstream. At others, the bypass system diverts the fish into barges for transportation around the dam.
A number of federal, state, and tribal entities are involved in the operation of the Columbia River System. The U.S. Army Corps of Engineers and the Bureau of Reclamation manage the dams for multi-purpose operations; the Bonneville Power Administration manages federal power generated from the dams; and the Federal Energy Regulatory Commission plays a number of roles, including licensing of non-federal hydro-power projects. State regulation impacts the system through governance of water diversions from the river and state conservation programs. A number of federally recognized Indian Tribes retain treaty fishing rights in the waters of the Columbia River System.3
The issue before us is application of the ESA on the management of the Columbia River System. The ESA requires federal agencies, in consultation with what is known as the "consulting agency," to conserve species listed under the ESA. The ESA requires federal agencies to "insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat. . . ." 15 U.S.C. § 1536(a)(2). The ESA imposes a procedural consultation duty whenever a federal action may affect an ESA-listed species. Thomas v. Peterson, 753 F.2d 754, 763 (9th Cir.1985). To that end, the agency planning the action, usually known as the "action agency," must consult with the consulting agency. This process is known as a "Section 7" consultation. The process is usually initiated by a formal written request by the action agency to the consulting agency. After consultation, investigation, and analysis, the consulting agency then prepares a biological opinion. See generally Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife Serv., 273 F.3d 1229, 1239 (9th Cir.2001). In this case, the action agencies are the U.S. Army Corps of Engineers and the Bureau of Reclamation, while the consulting agency is NMFS.
The consulting agency evaluates the effects of the proposed action on the survival of species and any potential destruction or adverse modification of critical habitat in a biological opinion, 16 U.S.C. § 1536(b), based on "the best scientific and commercial data available," id. § 1536(a)(2). The biological opinion includes a summary of the information upon which the opinion is based, a discussion of the effects of the action on listed species or critical habitat, and the consulting agency's opinion on "whether the action is...
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