Wild Fish Conservancy v. National Park Service
687 F. App'x 554
9th Cir.2017Background
- The Department of the Interior and NMFS approved State and Lower Elwha Klallam Tribe hatchery programs to restore Elwha River fish after dam removal; the Conservancy sued claiming NEPA and ESA violations and that the Tribe was unlawfully taking threatened fish.
- NMFS prepared an Environmental Assessment (EA) under a Limit 6 approval rather than a full Environmental Impact Statement (EIS); the Department participated in preparing the EA and provided related funding.
- The district court partially vacated one NMFS decision but otherwise entered judgment for the agencies and Tribe; the Conservancy appealed.
- After litigation began, NMFS issued a revised EA, an updated Limit 6 approval, and a Biological Opinion including an Incidental Take Statement; plaintiffs did not challenge the revised EA.
- The district court found several claims moot (failure-to-consult; unauthorized take) and held the EA adequately showed no significant environmental impact; the court rejected claims of improper segmentation of consultation and inadequate remedy notice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NMFS erred by preparing an EA instead of an EIS | EA understates impacts and uncertainty; EIS required | Prior comprehensive EIS/plans and EA analysis show no significant impacts | EA was not arbitrary or capricious; EIS not required |
| Whether Department’s NEPA obligations were met | Department funding and role required separate NEPA compliance | Department participated in EA and EA considered funding effects | Department’s NEPA satisfied because EA sufficed |
| Whether failure-to-consult claim remained ripe/moot | Consultation was not completed; relief still available | Consultation occurred after suit; claim therefore moot | Claim is moot because consultation and Biological Opinion occurred |
| Whether Tribe’s hatchery operations constituted unauthorized ESA take | Tribe’s actions were taking fish without authorization | NMFS’s Limit 6 approval and Incidental Take Statement authorized take | Claim of unauthorized take is moot; any post-approval takings claim barred for lack of notice |
Key Cases Cited
- Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233 (9th Cir.) (standard for arbitrary and capricious review of NEPA decision)
- Or. Nat. Res. Council v. Lyng, 882 F.2d 1417 (9th Cir.) (supplemental EIS not required where prior EIS contemplated similar actions)
- Marsh v. Or. Nat. Res. Council, 490 U.S. 360 (U.S.) (deference to agency expertise in factual disputes under NEPA)
- Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976 (9th Cir.) (EIS not required where controversy limited to appellant and few experts)
- Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005 (9th Cir.) (EIS not required merely because some uncertainty exists)
- Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291 (9th Cir.) (no requirement to analyze unrelated actions submitted on separate schedules)
- All. for the Wild Rockies v. U.S. Dep’t of Agric., 772 F.3d 592 (9th Cir.) (failure-to-consult claim can become moot if consultation occurs)
- Am. Rivers v. Nat’l Marine Fisheries Serv., 126 F.3d 1118 (9th Cir.) (claims become moot when events prevent effective relief)
- Tri-Valley CAREs v. U.S. Dep’t of Energy, 671 F.3d 1113 (9th Cir.) (no significant impact where proposed action does not alter status quo)
- In Def. of Animals v. U.S. Dep’t of Interior, 751 F.3d 1054 (9th Cir.) (EAs are project- and locale-specific and do not create binding precedent)
- Barnes v. U.S. Dep’t of Transp., 655 F.3d 1124 (9th Cir.) (similar point on EA specificity)
- Sw. Ctr. for Biological Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515 (9th Cir.) (citizen-plaintiff notice requirement for ESA citizen suits)