National Wildlife Federation v. National Marine Fisheries Service
839 F. Supp. 2d 1117
D. Or.2011Background
- Court reviews the validity of the 2008/2010 Biological Opinions (BiOp) issued under ESA Section 7 to the Corps and BOR for the Federal Columbia River Power System.
- NOAA Fisheries concluded FCRPS operations would not jeopardize listed species through 2018 based on identified habitat measures; beyond 2018 mitigation plans were not identified.
- Plaintiffs argued the no-jeopardy conclusion relies on unidentified, uncertain mitigation, making the decision arbitrary and capricious.
- Court previously remanded 2000 and 2004 BiOps; 2008 BiOp incorporated AMIP and estuary/tributary habitat actions with the Columbia River Estuary MOA and tribal agreements.
- December 2010 Supplemental BiOp updated data but did not alter jeopardy framework or reliance on unidentified mitigation; court granted remand to incorporate AMIP.
- Court orders remand through 2013, with 2013 mitigation plans identified as expiring; directs NOAA Fisheries to prepare a new/ supplemental BiOp by Jan 1, 2014 and continue funding/implementing identified measures through 2013.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the jeopardy framework is lawful | Plaintiffs challenge framework as legally flawed. | Fisheries contends framework complies with ESA. | Court assumes validity for argument but remands on beyond-2013 reliance. |
| Whether reliance on unidentified mitigation renders no-jeopardy arbitrary | Mitigation beyond 2013 is unspecified and not reasonably certain to occur. | Commitment to future habitat actions supports no-jeopardy. | No-jeopardy beyond 2013 deemed arbitrary and capricious. |
| Remand and remedy proper under APA/ESA | Remand should vacate or require immediate reinitiation. | Vacatur would be too disruptive; remand with continued protections is appropriate. | Remand maintained; BiOp kept through 2013 with ongoing protections. |
| Whether spill orders must be continued and whether flow/reservoir actions are needed | Spill must continue; flow augmentation and reservoir changes may be necessary. | Some proposed actions require further study to avoid unintended harms. | Spring/summer spill remains; flow augmentation/reservoir actions not required now. |
| Equitable relief and monitoring during remand | Court should ensure strict ongoing protections and reporting. | Agency should have flexibility; annual implementation reports suffice. | Remand with annual implementation reports and potential limited relief as needed. |
Key Cases Cited
- Lands Council v. McNair, 537 F.3d 981 (9th Cir.2008) (arbitrary-and-capricious review is narrow; agencies may rely on expertise)
- National Wildlife Fed’n v. NMFS I, 254 F. Supp. 2d 1196 (D. Or. 2003) (unidentified mitigation cannot support no-jeopardy)
- National Wildlife Fed’n v. NMFS II, 524 F.3d 917 (9th Cir.2008) (sincere general commitments to future improvements insufficient)
- Center for Biological Diversity v. Rumsfeld, 198 F. Supp. 2d 1139 (D. Ariz. 2002) (unidentified mitigation actions are unacceptable as no-jeopardy basis)
- Sierra Club v. Marsh, 816 F.2d 1376 (9th Cir.1987) (mitigation must address threats with specific, enforceable actions)
- Lake Mead v. Bureau of Reclamation, 143 F.3d 515 (9th Cir.1998) (finite, timetabled replacement habitat required in RPA)
- Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985) (agency action must be set aside when arbitrary or capricious)
- Arizona Cattle Growers’ Ass’n v. Salazar, 606 F.3d 1160 (9th Cir.2010) (agency is not required to prove absolute certainty; defer to expertise)