221 F. Supp. 3d 1224
E.D. Wash.2016Background
- Leavenworth National Fish Hatchery (on Icicle Creek, WA) diverts water (up to 42 cfs at Structure 1; supplemental up to 50 cfs) and uses canal structures (Structures 2 and 5) that historically impeded stream flows and fish passage; FWS operates the Hatchery and BOR is involved in water management.
- Icicle Creek supports ESA-listed Upper Columbia River spring Chinook and steelhead; steelhead critical habitat includes Icicle Creek; natural passage barrier exists at RM 5.7.
- From 2009–2015 FWS and BOR consulted NMFS under ESA §7; NMFS issued a 2015 Biological Opinion (BiOp) and Incidental Take Statement (ITS) concluding Hatchery operations were not likely to jeopardize species and prescribing instream flow surrogates and monitoring measures.
- Wild Fish Conservancy sued, challenging the BiOp/ITS as arbitrary and capricious under the APA, alleging NEPA violations for failure to prepare an EIS, and arguing FWS/BOR failed to ensure no jeopardy by relying on the BiOp; parties filed cross-motions for summary judgment.
- The court found the BiOp arbitrary and capricious on one narrow ground: NMFS failed to adequately consider the effects of climate change on future Icicle Creek hydrology when analyzing Hatchery operations and water use; all other challenges (reliance on future mitigation, monthly-average flows, ITS take and monitoring standards, NEPA obligation of NMFS, and agency reliance on the BiOp) were rejected.
- Remedy: the BiOp is vacated in part and remanded for further consultation consistent with the opinion; FWS/BOR’s reliance on the BiOp does not itself violate §7 because the insufficiency was factual (climate consideration) rather than a legal defect invalidating reliance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BiOp/ITS are arbitrary and capricious because NMFS relied on uncertain future mitigation and long-term commitments | NMFS impermissibly relied on future improvements and thus understated impacts | NMFS did not rely on long-term commitments in its jeopardy analysis and assessed current operations | Denied — court found NMFS did not improperly rely on uncertain future mitigation |
| Whether NMFS failed to consider climate change in its analysis of Hatchery operations and water use | NMFS ignored best-available science predicting altered hydrology, so historical flows are unreliable proxies | NMFS relied on regional climate discussion and lacked fine-scale Icicle Creek models; agency deference warranted | Granted — BiOp arbitrary and capricious for failing to consider climate change effects on future flows |
| Whether NMFS’s use of monthly average flows misrepresents low daily flows and is arbitrary | Monthly averages mask critical daily low flows necessary for fish survival | BiOp addressed variability and supplemented monthly data with other sources and operational experience; scientific judgment entitled to deference | Denied — use of monthly averages not arbitrary given agency explanation and deference |
| Whether the ITS provides adequate take triggers, monitoring, and is internally consistent | ITS lacks numeric triggers, insufficient monitoring for entrainment, and contains contradictory provisions on Structure 2 | ITS uses instream flow surrogates rationally linked to take, includes monitoring/salvage procedures, and terms are reconcilable (Term 2e controls) | Denied — ITS adequate on these grounds |
Key Cases Cited
- Tenn. Valley Auth. v. Hill, 437 U.S. 153 (establishing ESA’s conservation purpose)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (APA arbitrary and capricious standard)
- Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d 917 (limits on reliance on future mitigation in BiOps)
- Pac. Coast Fed’n of Fishermen’s Ass’ns v. U.S. Bureau of Reclamation, 426 F.3d 1082 (consider near-term habitat loss and generational impacts)
- San Luis & Delta-Mendota Water Authority v. Jewell, 747 F.3d 581 (consulting agency’s NEPA obligations; action agency implements ITS/EIS responsibility)
- Wild Fish Conservancy v. Salazar, 628 F.3d 513 (context on hatchery operations and prior litigation)
- Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, 273 F.3d 1229 (function of ITS and trigger concept)