Wild Fish Conservancy v. Wash. Dep't of Fish & Wildlife

• Decision Date: 07 February 2023
• Docket Number: C21-169-RSL
• Court: U.S. District Court — Western District of Washington
• Parties: WILD FISH CONSERVANCY, Plaintiff, v. WASHINGTON DEPARTMENT OF FISH & WILDLIFE, et al., Defendants.

WILD FISH CONSERVANCY, Plaintiff, v. WASHINGTON DEPARTMENT OF FISH & WILDLIFE, et al., Defendants.

No. C21-169-RSL

United States District Court, W.D. Washington, Seattle

February 7, 2023

ORDER GRANTING MOTION TO DISMISS AND GRANTING MOTION FOR LEAVE TO AMEND AND SUPPLEMENT COMPLAINT

Robert S. Lasnik, United States District Judge

This matter comes before the Court on (1) defendants Washington State Department of Fish and Wildlife and its named Commissioners' “Motion to Dismiss Pursuant to FRCP 12(b)(1) & (6)” (Dkt. # 16); (2) plaintiff Wild Fish Conservancy's “Motion for Leave to File First Amended and Supplemental Complaint” (Dkt. # 18), and (3) plaintiff's “Motion to Supplement the Factual Record” (Dkt. # 34). The Court heard oral arguments on the motion to dismiss and the motion for leave to file an amended complaint on November 2, 2022 (Dkt. # 28). Having heard the arguments and reviewed the submissions of the parties and the remainder of the record, the Court finds as follows:

I. Endangered Species Act Framework

This case arises under the Endangered Species Act (“ESA”). The ESA is a federal statute enacted to provide a program to conserve threatened and endangered species and to protect the ecosystems upon which those species depend. 16 U.S.C. § 1531(b). The U.S. Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”) share responsibility for administering the ESA. 50 C.F.R. § 402.01(b).^[1]Pursuant to Section 4 of the ESA, the FWS and the NMFS are empowered to designate species as “endangered”^[2]or “threatened.”^[3]Pursuant to Section 9 of the ESA, it is unlawful to “take”^[4]an endangered species. 16 U.S.C § 1538(a)(1)(B). The regulations promulgated under the ESA extend this Section 9 protection to certain threatened species. See 50 C.F.R. § 223.203(a); 50 C.F.R § 17.31(a).

The ESA provides mechanisms that exempt certain takings of endangered or threatened species from Section 9 liability. These mechanisms include ESA Section 10 and regulations promulgated under ESA Section 4(d). Under Section 10, the FWS and NMFS may permit (1) acts “for scientific purposes or to enhance the propagation or survival of the affected species . .” and (2) takings “incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.” 16 U.S.C. § 1539(a)(1). Regulations promulgated under Section 4(d) of the ESA provide take prohibition exemptions for (1) artificial propagation programs for which a state or federal Hatchery and Genetics Management Plan (“HGMP”) meeting delineated criteria has been approved by the NMFS, 50 C.F.R. § 223.203(b)(5), and (2) actions undertaken in compliance with a resource management plan jointly developed by the States of Washington, Oregon and/or Idaho and the tribes meeting delineated criteria, id. § 223.203(b)(6), among others.^[5]These Section 4(d) regulatory exemptions are known as “Limit 5” and “Limit 6,” respectively.

When non-federal actors seek a Limit 5 or Limit 6 exemption, they invoke the FWS or NMFS's duty to consult under Section 7 of the ESA. Section 7 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 habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical . . .” 16 U.S.C. § 1536(a)(2). Section 7 provides a three-step process:

(1) An agency proposing to take an action must inquire of the [FWS or NMFS] whether any threatened or endangered species “may be present” in the area of the proposed action. See 16 U.S.C. § 1536(c)(1).

(2) If the answer is affirmative, the agency must prepare a “biological assessment” to determine whether such species “is likely to be affected” by the action. Id. The biological assessment may be part of an environmental impact statement or environmental assessment. Id.

(3) If the assessment determines that a threatened or endangered species “is likely to be affected,” the agency must formally consult with the [FWS or NMFS]. Id. § 1536(a)(2). The formal consultation results in a “biological opinion” issued by the [FWS or NMFS]. See id. § 1536(b). If the biological opinion concludes that the proposed action would jeopardize the species or destroy or adversely modify critical habitat, see id. § 1536(a)(2), then the action may not go forward unless the [FWS or NMFS] can suggest an alternative that avoids such jeopardization, destruction, or adverse modification. Id. § 1536(b)(3)(A). If the opinion concludes that the action will not violate the [ESA], the [FWS or NMFS] may still require measures to minimize its impact. Id. § 1536(b)(4)(ii)-(iii).

Thomas v. Peterson, 753 F.2d 754, 763 (9th Cir. 1985); see also 50 C.F.R. § 402, subpart B (consultation procedures).

Section 11 of the ESA provides a “citizen suit” provision. Pursuant to this provision, “any person may commence a civil suit on his own behalf' “to enjoin any person, including the United States and any other governmental instrumentality or agency . . . who is alleged to be in violation of any provision of [the ESA] or regulation issued under the authority thereof,” among other suit authorizations. 16 U.S.C. § 1540(g)(1)(A). However, no action may be commenced under this provision “prior to sixty days after written notice of the violation has been given to the Secretary, and to any alleged violator of any such provision or regulation,” among other limitations. Id. § 1540(g)(2)(A)(i). The ESA's citizen suit provision imbues the district courts with the jurisdiction to “enforce any such provision or regulation.” Id. at § 1540(g)(1).

II. Background

Plaintiff is a nonprofit organization dedicated to the preservation and recovery of Washington's native fish species and the ecosystems upon which those species depend. Dkt. # 1 at ¶ 11. Defendants are a Washington State agency that implements fish hatchery programs in the state and its commissioners. Id. at ¶¶ 16-18.

Plaintiff brings this action under the citizen suit provision of the ESA. This is not the first time that plaintiff has sued defendants under the citizen suit provision of the ESA. Plaintiff first filed ESA citizen suits in 2002 and 2003 alleging that defendants failed to obtain ESA reviews or approvals for its Puget Sound hatcheries. See Wild Puget Sound, et al v. Koenings, et al, No. C02-1852-RSL (W.D. Wash.); Threatened Puget, et al v. Koenings, et al, No. C03-687-RSL (W.D. Wash.); see also Dkt. # 18-2 at ¶ A. The parties resolved those suits through a 2003 settlement agreement that required defendants to work to secure ESA reviews and approvals and prohibited plaintiff from initiating litigation against defendants for its hatchery programs for ten years. See Wild Puget Sound, No. C02-1852-RSL at Dkt. # 37 (W.D. Wash. May 15, 2003); Threatened Puget, No. C03-687-RSL at Dkt. # 18 (W.D. Wash. May 15, 2003); see also Dkt. # 18-2 at 4-17. Plaintiff sued defendants again in 2014 and 2019, this time in relation to ten additional hatchery programs. See Wild Fish Conservancy v. Anderson et al, C14-465-JLR (W.D. Wash.); Wild Fish Conservancy v. Washington Department of Fish & Wildlife et al, C19-612-JLR (W.D. Wash.); see also Dkt. # 18-2 at ¶¶ B-C. The parties resolved both suits through consent decrees that imposed various restrictions on defendants' hatchery programs. See Wild Fish Conservancy, C14-465-JLR at Dkt. # 22 (W.D. Wash. Apr. 28, 2014); Wild Fish Conservancy v. Washington Department of Fish & Wildlife et al, C19-612-JLR at Dkt. # 7 (W.D. Wash. May 2, 2019); see also Dkt. # 18-2 at 22-33, 35-45.

At issue here is defendants' integrated summer steelhead hatchery program on the South Fork of the Skykomish River in Snohomish County, Washington (the “Skykomish Program”). Defendants commenced the Skykomish Program prior to the NMFS reviewing and approving the HGMP and prior to the NMFS or FWS providing an authorization for defendants to take ESA-listed species. See Dkt. # 16 at 2. Plaintiff alleges that the Skykomish Program causes take of threatened fish species in violation of Section 9 of the ESA. In particular, plaintiff alleges that the Skykomish Program causes take of the Puget Sound distinct population segment (“DPS”) of steelhead, the Puget Sound evolutionary significant unit (“ESU”) of Chinook salmon, and the coterminous U.S. bull trout. See Dkt. # 1 at ¶ 57. Such steelhead, Chinook salmon, and bull trout are listed as threatened species under the ESA, see 50 C.F.R. §§ 17.11(h), 223.102, and are among the threatened fish protected by the ESA's anti-take provision, see 50 C.F.R. §§ 17.31(a), 223.203(a). Plaintiff further alleges that defendants are engaged in a pattern and practice of implementing hatchery programs throughout the State of Washington that take ESA-listed species without ESA authorizations in violation of Section 9 of the ESA. Dkt. # 1 at ¶¶ 72-74.

Defendants submitted an HGMP to the NMFS dated April 12, 2019, pursuant to regulations promulgated under Section 4 of the ESA. Dkt. # 6 at 2. Defendants also submitted a request for the NMFS to issue a permit under Section 10 of the ESA for a trap and haul program at Sunset Falls within the South Fork of the Skykomish River, whose activities included collection of broodstock for the hatchery program. Id. These two applications sought exemptions and/or permits providing exemptions from liability under Section 9 of the ESA for operations of the Skykomish Program. Id.

On December 2, 2020, plaintiff mailed a notice of its intent to sue under the ESA to defendants. Dkt. # 1 at 21-28. The notice focused on the Skykomish Program, but framed the...