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Environmental Law

: ESA Blawg

Yet another Pacific Northwest salmon case, and yet another remand to NOAA to reconsider its biological opinion.

By Keith Rizzardi

ADVERTISEMENTS

National Wildlife Federation v. NMFS, Nos. 06-35011, 06-35019, 2008 WL 1821470 (April 24, 2008) available online.

In the Ninth Circuit's own words...

These consolidated appeals bring us once more to the Pacific Northwest, for another round in the complex and longrunning battle over salmon and steelhead listed under the Endangered Species Act (“ESA”), 16 U.S.C. 壯 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”), 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 remand order. We affirm.

The opinion eventually found that the 2004 BiOp contained numerous flaws undeserving of judicial deference, including a failure to consider properly implications of the action for long-term salmon recovery, both in the analysis of effects to species critical habitat, and in the analysis of whether the action would jeopardize the continued existence of the species. In addition, the Ninth Circuit affirmed the District Court's injunctive relief. Read more excerpts below.

Salmon ladder at Rocky Reach Dam. Taken August 28, 2005 by Garrett Fitzgerald. Available on wikipedia.

EXCERPTS OF OPINION:

On the new analytical approach, assuming that the operations of dams was non-discretionary, and thus affecting the nature of the comparison between the effects of the action, and the existing environmental baseline for the species...

The 2004 BiOp’s jeopardy analysis included in the environmental baseline for the proposed action the existing FCRPS, various supposedly nondiscretionary dam operations, and all past and present impacts from discretionary operations. NMFS also adopted a novel “reference operation” approach in the 2004 BiOp, purportedly in order to account for the existence of the FCRPS dams. The reference operation consisted of the dams and a hypothetical regime for operating them, which, according to NMFS, was the most beneficial to listed fishes of any possible operating regime. NMFS also found, though, that certain aspects of FCRPS operations — such as operations relating to irrigation, flood control, and power generation — were nondiscretionary, given the dams’ existence, and that those aspects should not be considered part of the action under ESA review. The BiOp offers little detail on the nature and extent of the purportedly nondiscretionary obligations or NMFS’s basis for finding them to be nondiscretionary...

NMFS may not avoid determining the limits of the action agencies’ discretion by using a reference operation to sweep so-called “nondiscretionary” operations into the environmental baseline, thereby excluding them from the requisite ESA jeopardy analysis...

The district court also properly concluded that the 2004 BiOp impermissibly failed to incorporate degraded baseline conditions into its jeopardy analysis. the 2004 BiOp initially evaluated the effects of the proposed action as compared to the reference operation, rather than focusing its analysis on whether the action effects, when added to the underlying baseline conditions, would tip the species into jeopardy. Like the district court, we cannot approve NMFS’s insistence that it may conduct the bulk of its jeopardy analysis in a vacuum...

At its core, the 2004 BiOp amounted to little more than an analytical slight of hand, manipulating the variables to achieve a “no jeopardy” finding. Statistically speaking, using the 2004 BiOp’s analytical framework, the dead fish were really alive. The ESA requires a more realistic, common sense examination. For these reasons, the district court’s rejection of the 2004 BiOp’s jeopardy analysis was entirely correct.

On the nature of the "jeopardy" analysis, and the need to consider recovery of a species...

The district court also properly concluded that the 2004 BiOp was legally deficient because its jeopardy analysis did not adequately consider the proposed actions’ impacts on the listed species’ chances of recovery. ESA prohibits agency action that is “likely to jeopardize the continued existence of” any listed species. 16 U.S.C. � 1536(a)(2). The regulations interpret this to prohibit any agency action “that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild.” 50 CFR � 402.02 (emphasis added).

NMFS contends that this restriction bars only actions that will both (1) reduce appreciably the likelihood of survival and (2) reduce appreciably the likelihood of recovery, and that its views are entitled to deference under Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). Under this interpretation, though, NMFS need only consider effects on survival: if there is no appreciable reduction of survival odds, there can never be jeopardy, even if recovery is completely impossible. Because a species can often cling to survival even when recovery is far out of reach, NMFS’s interpretation of the jeopardy regulation reads “and recovery” entirely out of the text. This disregard for the statutory and regulatory context deserves no deference...

"As in Gifford Pinchot Task Force v. United States Fish & Wildlife Service, 378 F.3d 1059 (9th Cir. 2004), we conclude that the jeopardy regulation requires NMFS to consider both recovery and survival impacts..."

"We need not consider whether the ESA itself requires NMFS to consider both survival and recovery (as Gifford Pinchot held was the case for critical habitat), because we conclude that the text of the jeopardy regulation is not “reasonably susceptible” to the “survival only” interpretation NMFS now gives it."

On the nature of the "adverse modification of critical habitat" analysis, and the need to consider recovery of a species...

"We agree with the district court that NMFS’s adverse modification analysis did not adequately consider recovery needs and was therefore deficient under Gifford Pinchot, 378 F.3d at 1069. We agree with the district court that NMFS’s critical habitat determination was arbitrary and capricious because it (1) did not adequately consider the proposed action’s short-term negative effects in the context of the affected species’ life cycles and migration patterns, (2) relied on uncertain long-term improvements to critical habitat to offset certain short-term degradation, and (3) concluded that the species’ critical habitat was sufficient for recovery without adequate information to make that determination."

Finally, on the injunctive relief...

"FCRPS operations have been the subject of perpetual litigation since the fish in question were first listed in the early 1990s. The analytical approach of the 2004 BiOp, issued under court order after a remand in 2003, broke sharply from NMFS’s previous analyses in the 1995 and 2000 BiOps, and did so in ways that lacked any reasonable foundation in ESA’s statutory mandates. We hold that on this record, requiring consultation with states and tribes (and similarly, the requirement that NMFS file reports with the Court) constitutes a permissible procedural restriction rather than an impermissible substantive restraint. The district court’s chosen remedy was “reasonably calculated to remedy an established wrong,” and was not an abuse of discretion."

Full post as published by ESA Blawg on April 25, 2008 (boomark / email).

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