Wild Fish Conservancy v. Salazar
628 F.3d 513
| 9th Cir. | 2010Background
- Bull trout listed as threatened; 2008 BiOp concluded Hatchery operations not likely to jeopardize
- Leavenworth National Fish Hatchery on Icicle Creek blocks upstream passage; spillway and dam structures impede migration
- Hatchery began measures in 2006 to improve passage, including opening dams 2 and 5 and trapping bull trout for relocation
- ESA Sec. 7 consultation required with Service as both action and consulting agency; jeopardy analysis at interim recovery unit level
- Court remanded district court’s summary judgment decision; majority held the 2008 BiOp arbitrary and capricious for multiple reasons; dissenting judge argued different view on scope and baseline
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether five-year scope was permissible for the biological opinion | Conservancy argues scope was too narrow; should cover entire ongoing agency action | Hatchery planned changes justify five-year scope; reinitiation anticipated after 2010 intake replacement | Not permissible; scope deemed arbitrary and capricious and remanded |
| Whether Service articulated a rational connection between findings and no-jeopardy conclusion | Results showed long-term negative trends but no jeopardy conclusion explained | Conclusion tied to baseline and incremental improvements; long view insufficiently detailed | Not rationally connected; remand for reconsideration |
| Whether incidental take statement adequately monitors and triggers reinitiation | ITS lacks monitoring/clear trigger; risks unchecked incidental take | ITS sets numerical cap; monitoring discussed for other aspects but not the cap | ITS failed to establish meaningful monitoring trigger; remand for revised ITS |
| Whether effects interrelated with the proposed action were properly considered | Runoff/ pollution abatement pond effects inadequately addressed | BiOp adequately considered runoff; findings supported by studies | Adequate consideration; not a basis to overturn the BiOp |
| Whether Hatchery violated substantive ESA duty by relying on flawed BiOp | Arbitrary reliance on five-year scope and weak connection to no jeopardy | Service made a rational decision based on baseline and projected improvements | Court held overall that the BiOp was arbitrary and capricious; remanded with injunctive relief |
Key Cases Cited
- National Wildlife Federation v. Nat'l Marine Fisheries Serv., 524 F.3d 917 (9th Cir. 2008) (jeopardy analysis and baseline considerations in ESA consultations)
- Northwest Research Center v. Northwest Power Planning Council, 35 F.3d 1371 (9th Cir. 1994) (scope and cumulative effects in multi-agency planning)
- Conner v. Burford, 848 F.2d 1441 (9th Cir. 1988) (requirement to analyze the entire agency action, not just initial phase)
- Pacific Rivers Council v. Thomas, 30 F.3d 1050 (9th Cir. 1994) (ongoing agency action and timing of consultation)
- Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) (en banc; consideration of environmental impacts in NEPA/ESA context)
- American Rivers v. U.S. Army Corps of Engineers, 271 F.Supp.2d 230 (D.D.C. 2003) (caution against incremental/piecemeal environmental review)
- Cabinet Mountains Wilderness v. Peterson, 685 F.2d 678 (D.C. Cir. 1982) (context for scope of BiOp in exploration plans)