Pacific Coast Fed. v. U.S. Bureau of Reclamation

• Decision Date: 18 October 2005
• Docket Number: No. 03-16718.,03-16718.
• Citation: 426 F.3d 1082
• Parties: PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS; Institute for Fisheries Resources; Northcoast Environmental Center; Klamath Forest Alliance; Oregon Natural Resources Council; The Wilderness Society; Waterwatch of Oregon; Defenders of Wildlife; Headwaters, Plaintiffs-Appellants, and Mike Thompson, Representative, Plaintiff, v. UNITED STATES BUREAU OF RECLAMATION; National Marine Fisheries Service, Defendants-Appellees, Klamath Water Users Association; Tulelake Irrigation District; William Heiney; Amos Hoyt, Defendant-Intervenors-Appellees, v. Yurok Tribe; Hoopa Valley Tribe, Plaintiff-Intervenors.
• Court: U.S. Court of Appeals — Ninth Circuit

426 F.3d 1082

PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS; Institute for Fisheries Resources; Northcoast Environmental Center; Klamath Forest Alliance; Oregon Natural Resources Council; The Wilderness Society; Waterwatch of Oregon; Defenders of Wildlife; Headwaters, Plaintiffs-Appellants, and Mike Thompson, Representative, Plaintiff, v. UNITED STATES BUREAU OF RECLAMATION; National Marine Fisheries Service, Defendants-Appellees, Klamath Water Users Association; Tulelake Irrigation District; William Heiney; Amos Hoyt, Defendant-Intervenors-Appellees, v. Yurok Tribe; Hoopa Valley Tribe, Plaintiff-Intervenors.

No. 03-16718.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 16, 2005.

Filed October 18, 2005.

COPYRIGHT MATERIAL OMITTED

Kristen L. Boyles (argued), and Michael Mayer (on the briefs), Earthjustice, Seattle, WA, for the appellants.

John A. Bryson (argued), and David C. Shilton, S. Jay Govindan (on the briefs), Department of Justice, Washington, DC, for the appellees.

Robin Lee Rivett (argued), and Andrew T. Lloyd, Pacific Legal Foundation, Sacramento, CA; Russell C. Brooks, Pacific Legal Foundation, Bellevue, WA (on the briefs), for defendant-intervenor-appellees Klamath Water Users Association et al.

Appeal from the United States District Court for the Northern District of California; Saundra B. Armstrong, District Judge, Presiding. D.C. No. CV-02-02006-SBA.

Before: D.W. NELSON, W. FLETCHER, and FISHER, Circuit Judges.

D.W. NELSON, Circuit Judge.

Eight organizations representing environmental and fisheries interests sued the United States Bureau of Reclamation (BOR) and the National Marine Fisheries Service (NMFS) for injunctive and declaratory relief, alleging violations of the federal Endangered Species Act (ESA), 16 U.S.C. §§ 1531-1544. The lawsuit concerned the federal government's efforts to operate an irrigation project in accordance with its responsibilities under the ESA to protect the threatened Southern Oregon/ Northern California Coast (SONCC) coho salmon and its habitat. On appeal, the Pacific Coast Federation of Fishermen's Associations and the other plaintiffs (collectively referred to as Pacific Coast) contend that the government's actions are arbitrary and capricious, in violation of the ESA. They argue that the government's plan employs a phased approach but does not analyze how the first two phases, encompassing eight years of a ten year plan, will avoid jeopardy to the coho salmon. Appellees, the federal agencies, and defendant/intervenor Klamath Water Users Association (KWUA) urge that the plan reflects the agency's best judgment in the face of scientific uncertainty and contains sufficient analysis to support the NMFS's conclusion that its proposed action will avoid jeopardy to the coho. The district court struck down parts of the NMFS's original plan, but upheld the eight years of short-term measures that are the sole issue in this appeal. We conclude that the short-term measures are arbitrary and capricious, and remand the case to the district court for the issuance of injunctive relief in accordance with this opinion.

I. Legal and Factual Background

A. The Endangered Species Act

This case requires us to review a biological opinion (BiOp) prepared by the NMFS as part of its obligations under the ESA to ensure that federal actions in the operation of a federal irrigation project do not jeopardize anadromous fish species.¹ We begin with a brief overview of the ESA and the consultation process so that the legal and procedural context of our review is clear.

The ESA obligates federal agencies "to afford first priority to the declared national policy of saving endangered species." Tenn. Valley Auth. v. Hill, 437 U.S. 153, 185, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). Section 7 of the ESA establishes a consultation process to insure that "any action authorized, funded, or carried out by [a federal] agency . . . is not likely to jeopardize the continued existence of any endangered . . . or threatened species or result in the destruction or adverse modification of [critical] habitat. . . ." 16 U.S.C. § 1536(a)(2). When an action has the potential to affect an anadromous fish species, the NMFS has responsibility for consultation.

Before undertaking any action, the federal agency must determine whether any threatened or endangered species might be present in the area of the proposed action. Id. at (c)(1). If such a species might be present, the agency must prepare a biological assessment to determine whether the species is likely to be affected by the proposed action. Id. The biological assessment serves as a basis for the formal consultation with the NMFS.

During formal consultation, the NMFS must prepare a biological opinion, or BiOp, which determines the effects that the proposed action might have on the listed species or its critical habitat. Id. at (b)(3)(A). If the NMFS determines that the proposed activity might cause jeopardy to a listed species or adversely modify its habitat, the agency must suggest "reasonable and prudent alternatives" (RPAs) to the proposed action that would avoid jeopardy or adverse modification of habitat. Id. The implementing regulation defines RPAs as:

alternative actions identified during formal consultation that can be implemented in a manner consistent with the intended purpose of the action, that can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction, that is economically and technologically feasible, and that the Director believes would avoid the likelihood of jeopardizing the continued existence of listed species or resulting in the destruction or adverse modification of critical habitat.

50 C.F.R. § 402.02. In this case, the NMFS determined that the BOR's proposed activities — the operation of a federal irrigation system — would cause jeopardy to the SONCC coho salmon, and it therefore developed the RPA that is at the heart of this appeal.

B. The Klamath River Basin and the Klamath Project

The Klamath River basin straddles northern California and southern Oregon. At the center of this case is a fish population that is unique to the region, the SONCC coho salmon. The SONCC coho spawns and matures in the main stem and tributaries of the Klamath River.

The Klamath River basin supports a variety of agricultural activities that are possible in part because of irrigation water from the Klamath Project, a federally funded irrigation system established in the early 20th century. The Klamath Project consists of a number of dams and reservoirs. The coho salmon population populates the main stem and tributaries of the Klamath River until its passage is blocked by the Iron Gate Dam, which is the component of the Klamath Project closest to the Pacific Ocean. The flows past the Iron Gate dam into the Klamath River determine to a great extent the quantity of water available in the river. At issue in this appeal are the NMFS's determinations regarding the quantity of water that the BOR must release from behind the Iron Gate Dam to the Klamath River.

A number of factors make water management especially difficult in the Klamath River Basin. See generally Pac. Coast Fed'n of Fisherman's Ass'ns v. BOR, 138 F.Supp.2d 1228, 1230-31 (N.D.Cal.2001) ("PCFFA I"); Kandra v. United States, 145 F.Supp.2d 1192, 1196-98 (D.Or.2001). The primary reservoir is relatively shallow, and is home to populations of two different species of endangered fish, known as suckers, that require maintenance of certain minimum water levels. Kandra, 145 F.Supp 2d at 1196-98. Marshlands in two national wildlife refuges are irrigated by the Klamath Project to create bird habitat. Id. at 1196. Several tribes in the area have treaty rights to Klamath River fish, and the Department of Interior must meet the United States' fiduciary duty to maintain these resources. Id. at 1197. Numerous farmers have contracts for irrigation water that the BOR must supply each growing season. PCFFA I, 138 F.Supp.2d at 1231. The Klamath Basin has been the focus of previous cases dealing with endangered species conservation and water use and management.²

C. The SONCC Coho Salmon

The SONCC coho ranges throughout the North Pacific Ocean. During the twentieth century, populations of coho declined substantially in California and Oregon. The BiOp states that the number of wild coho in the Klamath River is "extremely low, and has been declining for most of the past two decades." The population of the SONCC coho is estimated to have declined from an estimated range of 50,000 to 125,000 wild coho in the 1940s to fewer than 6,000 wild coho in 1996. The SONCC coho salmon was listed as a threatened species under the ESA in 1997.³ The major factors threatening the SONCC coho include logging, grazing, dams, and water withdrawal for irrigation. The facts below are drawn from the NMFS's description of the SONCC coho's life cycle and assessment of its habitat needs in the BiOp.

The SONCC coho has a three-year life cycle, spending half its life in fresh water and half in salt water. Coho eggs typically hatch in March. Coho fry emerge two weeks after hatching, and spend up to 15 months in fresh water. The fry's preferred habitat is shallow areas near stream banks. Fry become smolt after 15 months and migrate to the sea between March and June. After about three years, coho return to the same streams in which they were born to spawn, migrating upstream between September and February, and spawning between November and January. Sufficient water flows must be available in the main stem of the Klamath River to enable the fish to migrate upstream during September through February and to migrate downstream at maturity from March through June. Habitat conditions in the main stem are also important because degraded habitat or low flow in tributaries causes coho fry to seek additional habitat in the main stem.

During the spring months, March...