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Ninth Circuit Affirms District Court's Rejection of NOAA Fisheries 2004 Biological Opinion

By Paul Hirsch

Ninth Circuit Opinion

In the latest decision from the US Court of Appeals for the Ninth Circuit in the ongoing salmon wars, the Court affirmed District Judge Redden's holding below that there were several structural flaws with the 2004 Biological Opinion?s jeopardy analysis, as well as defects in the Biological Opinion's analysis of impacts on critical habitat, and thus it does not not meet the mandates the Endangered Species Act (ESA). At issue here are the operations of the Federal Columbia River Power System (FCRPS), particularly the lower Snake River dams.

II

After a careful review of the record, we conclude that the district court correctly determined that the jeopardy analysis of the 2004 BiOp contained structural flaws that rendered it incompatible with the ESA.

A

[1] The district court properly held that NMFS may not use a hypothetical ?reference operation? in its jeopardy analysis to exclude from the proposed action?s impacts the effects of related operations NMFS deems ?nondiscretionary.? NMFS admits that it chose the reference operation approach in order to avoid ?trying to precisely determine the extent of the Action Agencies? discretionary operation.? However, ESA does not permit agencies to ignore potential jeopardy risks by labeling parts of an action nondiscretionary. ESA?s section 7 requirements ?apply to all actions in which there is discretionary Federal involvement or control.? 50 CFR § 402.03. We cannot approve NMFS?s interpretation of this rule as excluding from the agency action under review any portions of admittedly-discretionary actions that the agency deems nondiscretionary, since this approach conflicts with ESA?s basic mandate.

The Court goes on to find that "[NOAA Fisheries'] contention that competing mandates for flood control,irrigation, and power production create any immutable obligations that fall outside of agency discretion is not persuasive." [snip] "[NOAA Fisheries] 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."

As to the intertwined questions of survival and recovery (here particularly as these relate to Snake River fall Chinook salmon), the Court opines that

The question before us is not whether, on the merits,recovery risks in fact require a jeopardy finding here, but whether, as part of the consultation process, NMFS must conduct a full analysis of those risks and their impacts on the listed species? continued existence. Although recovery impacts alone may not often prompt a jeopardy finding, NMFS?s analytical omission here may not be dismissed as harmless: the highly precarious status of the listed fishes at issue raises a substantial possibility that considering recovery impacts could change the jeopardy analysis. The only reasonable interpretation of the jeopardy regulation requires NMFS to consider recovery impacts as well as survival.(Footnote omited.)

The Court goes on, following the District Court's decision, to criticize NOAA's handling the the critical habitat question and, at least obliquely, its reliance on hatchery stocks. The second to last paragraph of the opinion merits attention.

Here, FCRPS operations have been the subject of perpetual litigation since the fishes 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 the ESA?s statutory mandates. We hold that on this record, requiring consultation with states and tribes constitutes a permissible procedural restriction rather than an impermissible substantive restraint.17 The district court?s chosen remedy was ?reasonably calculated to remedy an established wrong,? and was not an abuse of discretion. NRDC v. Sw. Marine, Inc., 236 F.3d 985, 1000 (9th Cir. 2000) (internal quotation marks omitted) (approving remedy to enforce compliance with CWA permit issued by agency, and finding no encroachment on agency?s authority).

Fans of perpetual litigation can feel secure. This decision flowed from a summary judgment motion on plaintiffs' Second Supplemental Complaint in Judge Redden's court. A Third Supplemental Complaint has been filed.

Full post as published by Environmental Law in Washington State on April 11, 2007 (boomark / email).