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Environmental Law

: ESA Blawg

Court declines to second-guess NOAA actions related to Puget Sound Chinook

By Keith Rizzardi

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Salmon Spawning & Recovery Alliance v. Lohn, No. C06-1462RSL, 2008 U.S. Dist. LEXIS 30809 (W.D.Wash., March 20, 2008)

Introduction (excerpted verbatim from opinion)

This case concerns a challenge to two decisions by National Marine Fisheries Service ("NMFS") involving Puget Sound Chinook salmon: the approval of a resource management plan prepared by the Puget Sound Indian Tribes and the Washington Department of Fish and Wildlife ("WDFW"), and the biological opinion issued by NMFS regarding the effects of its decision to approve the plan. The suit arises under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., for judicial review of a federal administrative action.

Background (excerpted verbatim from opinion)

Although the Puget Sound Chinook Evolutionary Significant Unit ("ESU") (Oncorhynchus tshawytscha) is listed as threatened under the Endangered Species Act ("ESA"), the ESA section 9 does not prohibit the take of "threatened" species. Rather, Section 4(d) of the ESA allows agencies to apply section 9's prohibitions to "threatened" species. In this case, on January 3, 2000, NMFS issued a final Section 4(d) Rule for Puget Sound Chinook. See 50 C.F.R. § 223.203 (2000). This rule concluded that the take prohibitions applicable to endangered species are necessary and ad-visable for the conservation of the threatened Puget Sound Chinook. See 65 Fed. Reg. 42422, 42423 (July 10, 2000). NMFS, however, also concluded that it was not necessary and advisable to impose the take prohibitions to thirteen pro-grams because the programs contribute to the conservation of the ESU. Id. The conditions on which these programs are not subject to the section 9 "take" prohibition are referred to as "Limits." Id.; 50 C.F.R. § 223.203(b). The relationship between two of these Limits--Limit 4 and Limit 6--is at the heart of plaintiffs' claims in this case.

Key Rulings (excerpted in part, and summarized, from opinion)

The court upheld NMFS’ interpretation and application of the limits to the Puget Sound Chinook ESU, and based on a thorough discussion of the administrative record, further held that NMFS, through its approval of the resource management plan for the species, adequately addressed, among other topics, (i) the viability of the salmonid populations (ii) the extinction risk to the species, (iii) the carrying capacity and current habitat conditions of the species, (iv) the thresholds for viability as recommended by the Technical Recovery Team, (v) the exploitation rates, and (vi) the restric-tions on fisheries time, size, gear and area restrictions.

In addition, the court upheld the biological opinion on the effects of the resource management plan to the Puget Sound Chinook ESU. Rejecting claims that NMFS used the wrong standards in its analysis, the court ruled that the BiOp appropriately considered the impacts on recovery, as required by Nat'l Wildlife Fed'n v. NMFS, 481 F.3d at 141 (9th Cir. 2007) which held that the recovery requirement "simply provides some reasonable assurance that the agency action in question will not appreciably reduce the odds of success for future recovery planning, by tipping a listed spe-cies too far into danger." In its decision and the BiOp, by using the RAP, NMFS analyzed recovery risks by utilizing rebuilding exploitation rates. In addition, NMFS met the requirement that the BiOp must be based on the "best scien-tific and commercial data available." 16 U.S.C. § 1536(a)(2). Granting deference to the agency’s own analysis of com-peting scientific data or expert opinions, the court held that NMFS did not ignore information in the administrative re-cord.

Finally, the Court rejected Plaintiffs’ arguments that under 50 C.F.R. § 402.16: "Reinitiation of formal consultation is required.” Specifically, the Court (a) held that Plaintiffs failed to rebut NMFS’ explanation that new information re-lated to the combined effect of fisheries in Canada reflected only a piece of a comprehensive whole year class produc-tivity evaluation that required multi-year data and is done every five years; (b) found that the formal adoption of a 2007 Puget Sound Recovery Plan, which itself simply incorporated the resource management plan (as discussed above), was not reasonably considered “new information” triggering reinitiation of consultation; (c) noted Plaintiffs lack of eviden-tiary support for their arguments regarding the need to consider marked vs. unmarked salmon, and (d) ruled that one “gloomy” e-mail from a NMFS scientists, on its face calling itself “preliminary,” did not trigger reinitiation.

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