479 F.Supp.3d 1003
D. Or.2020Background:
- Plaintiffs (Northwest Environmental Defense Center, WildEarth Guardians, Native Fish Society) sued the U.S. Army Corps of Engineers (Corps) and NMFS alleging ESA and APA violations tied to operation of the Willamette Valley Project (WVP) dams.
- NMFS issued a 2008 Biological Opinion (BiOp) finding the Corps’ proposed WVP operations would jeopardize Upper Willamette River (UWR) Chinook and steelhead and adversely modify critical habitat, and prescribed ~96 RPA measures with firm deadlines (including the “Big 4” downstream-passage projects and a Detroit temperature-control structure) plus an Incidental Take Statement (ITS).
- The Corps missed many RPA deadlines, significantly delaying or abandoning key measures (Cougar, Detroit/Big Cliff, Lookout Point/Dexter downstream passage; Detroit temperature control); some interim measures either failed or were not fully implemented.
- Evidence in the administrative record (Corps presentations and COP reports) showed modeled downstream juvenile mortality well above the ITS limits in multiple subbasins.
- NMFS did not reinitiate formal consultation until April 2018 (after this suit was filed), despite internal staff concerns years earlier that reinitiation was required.
- The court granted Plaintiffs’ summary judgment and denied Defendants’, holding the Corps violated ESA §7(a)(2) and §9 and that NMFS unlawfully delayed reinitiation under the APA; remedy-phase briefing was ordered.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Corps violated ESA §7(a)(2) by operating WVP without timely implementing the RPA, causing jeopardy/adverse modification | Corps’ ongoing operation without timely completion of critical RPA measures (especially downstream passage and temperature control) deepens jeopardy and undermines the BiOp’s no-jeopardy conclusion | Corps may depart from a BiOp/RPA and is not required to implement every RPA measure; delays are typical for large projects and NMFS did not object during reinitiation | Court: Corps violated §7(a)(2). Failure to timely implement critical RPA measures (and lack of adequate alternative steps) causes jeopardy; NMFS’ contemporaneous BiOp analysis controls over later justifications. |
| Whether the Corps violated ESA §9 by causing unlawful "take" (exceeding ITS limits) | Corps’ operations produce juvenile passage mortality exceeding the ITS mortality limits in multiple subbasins (supported by Corps/NMFS modeling and presentations) | Corps contends mere existence of dams (pre‑dating listing) and other factors, and challenges specificity/source of Plaintiffs’ data | Court: Corps violated §9. Record evidence shows modeled/estimated mortality exceeds ITS limits and Corps’ operations cause that take. |
| Whether Defendants unlawfully delayed reinitiating ESA consultation (APA/ESA) | Defendants knew for years that RPA deadlines would be missed and ITS limits exceeded but did not reinitiate until 2018; delay was a substantial procedural violation requiring relief | Defendants argue reinitiation occurred after suit and that continued implementation during reinitiation was prudent; claim mootness for reinitiation relief | Court: NMFS and Corps unlawfully delayed reinitiation (NMFS’ delay arbitrary and capricious); claim not moot because injunctive/declaratory relief remains effective. |
| Mootness / available relief for failure-to-reinitiate claim | Plaintiffs seek injunctions (operational changes) and declaratory relief to address ongoing harm during reinitiation | Defendants contend reinitiation moots the claim and that only an order to reinitiate is appropriate | Court: Claim not moot—effective injunctive/declaratory relief remains available and a substantial procedural violation permits injunctive remedy. |
Key Cases Cited
- Bennett v. Spear, 520 U.S. 154 (1997) (agency may disregard a BiOp but does so at its peril)
- Sierra Club v. Marsh, 816 F.2d 1376 (9th Cir. 1987) (failure to timely implement RPA mitigation can violate §7)
- Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d 917 (9th Cir. 2008) (agency may not deepen jeopardy by action that worsens baseline harm)
- Auer v. Robbins, 519 U.S. 452 (1997) (courts should not defer to post‑hoc rationalizations)
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (1983) (arbitrary and capricious standard for agency decisions)
- Hoopa Valley Tribe v. Nat'l Marine Fisheries Serv., 230 F. Supp. 3d 1106 (N.D. Cal. 2017) (injunctive relief may be appropriate for failure to reinitiate consultation)
- Washington Toxics Coal. v. EPA, 413 F.3d 1024 (9th Cir. 2005) (injunctive relief available for substantial procedural violations)
- Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687 (1995) (definition of "harm" includes habitat modification leading to injury)