*4 BERZON, Circuit Judges. I. A.
Opinion by BERZON; Judge Partial by Concurrence and Judge Partial Dissent In Congress authorized the estab- FISHER. lishment of several salmon hatcheries to into eventually released Icicle upper ponds grounds spawning replace Creek. River made inaccessible Columbia Dam, Grand Coulee
completion of the channel Unimpeded, Creek’s historic migration. See Mitchell fish which blocks spillway fish circumvent would allow (1938); Cong. Act, 52 Stat. ch. through Passage upstream. and swim (statement 1938) (May blocked, however, Rec. H6075 at the channel historic Rich). National The Leavenworth Rep. at which the historic channel points two Creek, Icicle Hatchery built on Fish top canal: At the of the historic meets the Leavenworth, Washington, just channel, 2,” south of “dam gates, known as radial funding re- Although beginning in 1939. from historic water channel divert closed, has shifted and, for the sponsibility canal, when also block fish now rests among agencies federal At through the historic channel. passage Reclamation, the weir, fence, bottom, the Bureau of known 5,” managed operated from prevents entering has fish “dam *5 channel; Cur- continuously since its construction. can be historic boards removed a operates single- as rently, Hatchery passage. to allow fish from weir facility, rearing only spring-run species configuration How this affect bull does Initially, salmon were salmon.1 Chinook trout, are species with which we con- and hauled in the Columbia River trapped cerned? Here’s how: Hatchery Hatchery The spawn. to to the or mi- Bull trout exhibit either resident into Icicle imports salmon longer no Resident bull trout live gratory behavior. Creek, entirely adult relying returning on in they their lives the streams in which out targets. production to meet its salmon They significantly spawned. are were trout, migratory bull than measur- smaller ironically, Unfortunately, somewhat maturity, to six twelve inches in Hatchery passage fish itself blocks produce eggs. Migratory fewer (the “Creek”). Icicle When Creek contrast, trout, migrate juveniles in as to constructed, a canal was Hatchery to their larger bodies water return Creek; nat- alongside the the Creek’s built hatching They regularly to place spawn. is now called the “historic ural channel or more. twenty-four reach inches Both in con- The canal culminates a channel.” migratory pro- bull trout can resident and can crete fish travel downstream spillway; resident offspring that exhibit either duce Fish spillway upstream. over the but migratory behavior. by the upstream passage whose is blocked deep at its base spillway gather pool seriously in Hatchery’s The have barriers (the pool”), migratory migration and from there “spillway disrupted the trout’s salmon, as well the occasional returning spawning activity. as Between 1940 and 2001, ladder a fish bull trout that hatched interloper, migratory ascend Hatchery ponds. upstream Adult salmon Hatchery’s holding the tributaries migrate killed downstream over the holding ponds are were able to Hatchery’s en- spillway and incubated. but were blocked eggs females’ removed holding tirely returning upstream spawn. from reared in the offspring are listing significantly it is di- Although naturally spawned spring-run Chi- from the because vergent populations. upper the local natural River as from nook salmon Columbia Listing for 16 ESUs artificially are See Final Determinations propagated well stocks as some Salmon, 37,160, Fed.Reg. West Coast endangered under the listed or threatened 28, 37,175 2005). ESA, (June Hatchery population is excluded 2001, Project Matejko, v. Beginning started so.” W. Watersheds (9th Cir.2006) (internal 1099, 1109 adjusting sporadically its dams to allow 468 F.3d omitted). upstream passage quotation fish occasional short envi- completed of time. It also an periods Formal section 7 be consultation on a impact proposed statement ronmental (here, gins agency” when the “action project, project habitat restoration in its capacity operator as the modifying include dams and 5 to would Hatchery) request transmits written That passage. allow for increased fish (here, “consulting agency” to the the Ser and, delayed, however, has been project consulting capacity). vice See 50 likely according government, “is 402.14(c); Spawning C.F.R. Salmon & implement.” time take some Gutierrez, Recovery Alliance Conservancy Cir.2008). after Starting consulting im- litigation, initiated this biological then opinion issues plemented two main measures to facilitate evaluating the “current status the listed upstream passage for bull trout and other species” and the “effects of the action and First, began opening native fish. dams cumulative effects species,” listed 2 and 5 least ten partway for about offering a conclusion “as to whether year; passage months out remains action, taken together with cumulative from approximately May blocked 15 to effects, jeopardize the contin July during period. the salmon collection species.” ued existence listed 50 C.F.R. *6 It also to plans adaptive management use 402.14(g). “jeopardize § To the continued early to if approaches open the dams existence” of a species “engage is to in an enough salmon have been collected. Sec- reasonably expected, action that would be ond, trap installed a near the directly indirectly, or to appreci reduce purpose collecting fish ladder of ably the likelihood of both the survival and bull trout and releasing them above recovery species by of listed in the wild dams; any bull trout found in the salmon numbers, reducing reproduction, holding ponds transported up- will also be species.” § distribution of that 402.02. stream. jeopardy regulation requires “[T]he [the recovery to consider both sur
Service] B. Fed’n, impacts.” vival Nat’l 524 F.3d at 931. 7(a)(2) Section of requires the ESA agencies federal consult making to with either the Aside a jeopardy from determi- nation, Fish and consulting Wildlife Service or National agency must also Marine Fisheries to “insure consider whether the will implicate action authorized, funded, any action or carried provision, another ESA general prohi- by out ... is not likely “tak[ing]” [the] to bition on of endangered species. jeopardize any § § continued existence ESA 16 U.S.C. 1538. The ESA endangered species harm, species.” harass, or threatened “take” pursue, defines as “to 1536(a)(2). hunt, shoot, duty wound, kill, § 16 U.S.C. con to trap, capture, or action[s],” applies “ongoing agency collect, sult to or to to in attempt engage any such Thomas, 1532(19). § Pac. Rivers Council v. conduct.” 16 au- U.S.C. As Cir.1994), 4(d), as well as future thorized ESA section 16 U.S.C. 1533(d), actions. An “ongoing agency § action” ex regula- the Service has issued if agen ists the action “comes within the extending prohibition tions the take cy’s decisionmaking authority and species, excep- remains threatened with certain projected begin in project, § 17.31. The take restoration tions. See C.F.R. 2013.2 trout generally bull applies prohibition activities although fishing Washington, evaluat- Service’s scheme for As state, federal, or tribal under authorized an impact of action the survival regulations exempted. are See
laws and trout, recovery the bull 17.44(w). §id. recognizes population seg- five bull trout ments, recovery which it terms “interim concludes that consulting agency If the Each unit units.” contains several local jeopardize a listed an into “core populations, grouped geographic recommend “reason- species, it must popu- areas.” Icicle Creek bull trout alternatives” that will prudent able and populations one seven local lation is 1536(b)(3)(A); § jeopardy. avoid 16 U.S.C. River core area. This core Wenatchee 402.14(h)(3). Also, § if the con- 50 C.F.R. area, turn, part Columbia River the action sulting agency concludes unit, recovery interim which contains the continued existence jeopardize will not popula- about 90 core areas and 500 local likely to result in species but is listed tions, making largest by far takings, then it must issue an incidental recovery five units. The Service conducts with the bio- “incidental take statement” jeopardy determinations for 1536(b)(4); § logical opinion. 16 U.S.C. at the interim unit level. trout 402.14(i). An incidental take C.F.R. See Determination of Threatened Status number of exempts specified statement Trout, 58,930. Fed.Reg. at for Bull prohibi- takings from the take incidental The 2008 found that the Icicle tion of section 9. Creek bull trout “has been and at 49. As remains decline.” structure, statutory once Given this explained, for most of the threatened, the listed as the bull was reproduction all time since obligated to consult with the *7 population trout has de- Icicle Creek bull that were to ensure its smaller, less fecund resi- pended the the continued existence of jeopardizing not that live out their lives dent bull trout for authorization of the and also species, Hatchery, the the upstream of because takings. See Pac. Rivers any incidental Hatchery prevented mi- structures have Council, request In at 1053. F.3d returning up- bull trout from gratory consultation, Hatchery the for the defined spawn. at stream to See id. 31-32. There operation and mainte agency action as the spawning is no habitat downstream Hatchery through nance the from 2006 Hatchery, migratory bull trout at- and According BiOp, to the 2008 2011. to unsuccessfully up- return tempting five-year be Hatchery period selected appear spawn do to elsewhere stream not to planned cause it two modifications impeded. progress their has been once Hatchery operations during and soon after at 48. See id. period require it to reiniti that that would (1) replacement very small numbers of adult ate formal Since consultation: occasionally have system, expected migratory to bull trout intake be water (2) upstream Hatchery by habitat been observed completed difficulties; anticipates issu- 28(j) the Service now letter with this 2. The Service filed 18, 2010, February reporting biological opinion that "before the close ing court on a new system replacement of the water intake at latest.” of 2011 engineering delayed had as result been Creek, at suggesting Hatchery’s Icicle that least a Finally, efforts remove pass few bull trout have been able to migratory bull from spillway pool trout during through dams ponds holding transport salmon periods they been open. have See id. at upstream them not have been successful. 43. The 2008 identifies several fac- at appear See id. 72-73. Bull trout tors, however, likely that limit the effec- avoid fish trap salmon ladder. of the 2006-2011 operations tiveness and See id. management providing upstream fish factors, result As a of these First, approximately passage: two- expects “long-term negative [population] period during month which the dams are trends ... [within Creek] Icicle contin- closed for salmon largely collection co- ue.” at 85. Id. The 2008 found that period during incides which bull “in extirpation the short-term the risk of attempt migrate upstream. trout See population the Icicle Creek is moder- Second, although id. at 45-47. the bull ately long-term low.... [I]n risk migration period may trout extend some- higher, is although high as as it was beyond
what period, the salmon collection formal [operations before and mainte- migrating bull trout successful travers- changes made nance] [Hatch- were at the ing the historic channel face additional ery] in 2006.” Despite 50. they can spawn- hurdles before reach the negative continued population trend for upstream. habitat farther Most nota- Creek, Icicle the 2008 BiOp bly, structure, another the in- concluded “the effect of improved up- dam, boulders, take a group well as stream passage conditions caused way. Although See id. 55-56. proposed action ... when added to the the intake dam equipped with a fish environmental improve, baseline should al- ladder, the ladder is “subopti- location beit in way, small the contribution boulders, mal.”3 Id. at 55. The pos- Icicle Creek local dam, sibly the intake are passable only survival of the bull trout.” 86. Id. at Fi- high flows, during which typically occur in nally, the Service concluded spring early late summer. See id. at appreciably “not reduce the Beginning July, flow decreases and likelihood both the survival the boulder and recov- area becomes a barrier. The ery of the bull trout in salmon Id. at collection wild.” is scheduled to *8 87. July end 7 may on but be extended for up
to two depending weeks on salmon num- Thus, bers. See at 10. id. normal C.
years, only there is a brief window during migratory which pass bull trout can The Conservancy, the then known as Hatchery Trout,” structures and “Washington the boulders to filed this action in spawn upstream, 2005, and in years seeking some declaratory injunctive there and may no be window all.4 id. alleged See at 69. relief for violations of the ESA and males, system presents water The intake also a dent migratory apparently males can- inadequately hazard bull trout because it is not mate with id. resident females. See at 71. screened. See id. at 79. Thus, only migratory if small numbers of barriers, pass may the there skewed be migratory 4. Even if bull trout are able to them, among prevent sex ratio which could habitat, spawning reach the they will be able spawning. them from See id. spawn only they if can find mate. Al- though migratory females can mate with resi-
521 A. Policy Act Environmental the National (“NEPA”). to a settle- partial Pursuant first the Ser We consider whether ment, in formal Hatchery engaged the scope of the permissibly vice defined the the 7 Ser- section consultation ESA management operations action as the vice, biological opin- in a resulting, years. of five Hatchery of the for (“2006 Conservancy BiOp”). When the ion Conservancy objects framing the BiOp in an amended the 2006 challenged project an short- operation ongoing for and was complaint, the Service moved action, the arguing term that Service’s In voluntary remand. granted a scope of the action’s allowed choice BiOp under review issued considering avoid whether here, BiOp. thereby superseding the extirpa of the would lead that Conservancy, concerned still trout popula tion of the Icicle Creek bull was be- Icicle Creek bull trout beyond five-year point tion at some affected, adversely challenged the 2008 loss, as well as if it period, whether complaint. supplemental a second occurred, compromise would the interim summary judg- parties Both moved recovery unit. The Service maintains that granted the ment. The district court Ser- five-year its term was not choice and denied the Conservan- vice’s motion because, arbitrary capricious as the cy’s. It concluded states, anticipated “sufficiently well-documented ex- replacement water intake “appropriately that the Service plained”; (now system delayed, as we have term of justified 5-year defined and noted) it to reinitiate require would section action”; jeopar- that the “no proposed 7 consultation.5 arbitrary capri- dy” conclusion was not Conservancy timely appealed. cious. The Evaluating scope agency of an action determining significant can the ade- be II. quacy biological opinion. scope “[T]he of a court’s decision We review district is crucial agency because summary analysis judgment de biological opinion ESA to ana- requires the Fed’n, Nat’l 524 F.3d novo. See lyze agency effect the entire action.” must court’s at 927. We affirm district Burford, Conner v. summary judgment to the Service grant Cir.1988). term “interpret We “arbitrary, action is agency’s unless the broadly,” ‘agency action’ because “caution discretion, or capricious, an abuse of other- can if takes a be exercised the in accordance with law.” U.S.C. wise not possible look at all ramifications 706(2)(A). Although we cannot substi- (internal quotation agency action.” for that judgment tute our own omitted). marks alterations *9 careful, “engage in a agency, we must rejected opinions ad- biological Conner agency review ensure that the searching first, stage dressing only preliminary the analysis and decision has made rational multistage case project. in a The involved it.” the Nat’l on record before more Fed’n, government’s the issuance of federal F.3d at 927. date, at but the upcoming pro- end see The another cites project, for which ject, habitat restoration does mention this reason in not projected begin "approx- construction brief. 2013,” imately as reason for the an additional gas exploration agency argu- action.6 than 700 leases for oil What Service’s acknowledge in two forests. Before the leases ment does not is that national issued, seventy prepared biolog- Hatchery operating has been for were opinion Concluding years expected operat- for forest. and is to continue ical each Hatchery simply there was information The “insufficient into future. decision, Service, comprehensive by render a bio- made a available to endorsed beyond five-year logical opinion the initial lease define the action as a term of operations, might easily when it have phase,” id. at the Service considered themselves, only thirty-year of chosen a term a one-year the effects the leases or gas activity not of the oil and to follow on term. the leased land. at 1453. Instead of Id. scope The delineation of the of an action comprehensive biological opinions at the can have a effect determinative on leasing stage, the Service included ability a biological opinion fully of to de- stipulations requiring leases additional en- impact scribe the the action on the prior any
vironmental consultation “sur- species, viability the threatened here face-disturbing activities.” Id. at 1455. example, limiting the bull trout. For analysis Hatchery’s impact on the
We held that the limited scope bull to a opera- trout one-month term biological opinions violated the ESA. The certainly arbitrary tions would be said, almost obligation, Service’s we was “to ana- capricious. The time under lyze agency the effect of the entire action.” study be capture would too short to 1453. Because oil “[plumping trout, though, effects even leasing congres- not tracts the aim as the under recognizes, review policy,” leasing agency sional mineral negative will have a impact necessarily encompassed action “not five-year period. over a leasing all leasing post-leasing but ac- through production tivities and abandon- must ensure that it does (internal ment.” Id. marks quotation “engage reasonably an action that omitted). pro- alterations The Service’s expected, would directly indirectly, be posal “incremental-step to conduct consul- appreciably to reduce likelihood an inadequate tation” was alternative. recovery” both the survival and of the bull result, approach might That example, River interim Columbia recov- in the “piecemeal chipping away of habi- ery unit. 50 C.F.R. 402.02. The artifi- endangered tat” for species. Id. 1454. cial continuing operation division of a into “required prepare, The Service was thus short terms can consulting undermine the leasing stage, comprehensive at the bio- agency’s ability accurately to determine logical opinion” considering “all phases of species’ likelihood of survival re- action.” Id. Because it had not covery, example just given as the illus- so, biological opinions done were inval- trates.
id.
problem
This
is exacerbated
the fact
Service contends
Conner is in-
that the ESA regulation requires consider-
apposite
five-year
because the
of op-
term
ation of whether the
will
“reduce
management
erations and
appreciably
is the entire
both
likelihood of
the sur-
*10
Conner,
6. The
primarily
Service relies
perti-
on Cabinet
As in
Cabinet Mountains is not
Peterson,
Mountains Wilderness v.
nent because it did not address
the
whether
(D.C.Cir.1982),
regarded
agency correctly
a case we
as
determined the time-limited
inapposite
scope
BiOp.
in Conner. See
some
problem:
To illustrate the
If the Service
periods
of several subdivided
pact, in each
project
Hatchery operations
were
that
cumulation,
that,
an
in
have
operation
in
term
fifty-year
a
would result
the
over
in-
impact. For
undeniably appreciable
bull
extirpation of
Icicle Creek
stance,
analyze ongo-
if the Service were to
popula-
of that local
population,
loss
a
of ten
ing Hatchery
as
series
operations
tion,
it
depending
played
on the role
actions, might
it
find a
net
five-year
unit,
recovery
might
sig-
be
larger interim
each
of five to ten
trout over
decrease
enough
appreciably
nificant
to “reduce
five-year period,
might
conclude
the survival and recov-
likelihood of both
popu-
in the local
recovery
an incremental reduction
unit. A series
ery” of the interim
hand,
not appre-
analyses,
would
magnitude
lation of that
on the other
of short-term
long-term impact
of survival and
of Hatch-
ciably reduce the likelihood
could mask
were
recovery
ery operations.
unit. But
If the Service
the interim
recovery of
year
example,
determine
were to consider
if instead the Service
next
operations over the
five
population
in the local
entire reduction
eradicate the local bull trout
years would
might
then find an
fifty years,
over
year
population
population,
local
recovery
impact
the interim
on
appreciable
year might already have
45—the baseline
unit.7
—
small, and its role in the interim
become so
potential
diminished,
for the
dis
reason
recovery
One
unit therefore so
depending
on
crepancy
appreci-
outcomes
not be said to reduce
its loss could
that,
scope
analysis
ably
recovery
the likelihood of survival and
temporal
analysis,
unit.
jeopardy
Ser
interim
conducting
the action
effects of
vice considers the
we
in other circumstances
As
observed
environmental
“that will be added
“[ujnder
Federation,
in National Wildlife
includes “the
Id. The baseline
baseline.”
species
a
could be
approach,
listed
this
Federal,
of all
present
impacts
past and
long
each
destroyed,
step
so
gradually
other human
State,
actions and
private
sufficiently
path
to destruction is
on
Thus, if
in the action area.”
activities
into
type
modest. This
of slow slide
oblivi
a
short-term
series of
Service conducts
very
is one of the
ills
ESA'seeks
effectively
analyses, the baseline
resets
Id.;
Am.
see also
Rivers U.S.
prevent.”
period.
beginning
each
While
Army
of Eng’rs,
F.Supp.2d
Corps
in its
(“If
must
the baseline
(D.D.C.2003)
consider
FWS were allowed
analysis,
only ‘jeop
action
“[ajgency
can
scope
of consulta
apply
such
limited
agency
case,
if that
species’
agen
existence
all
year
ardize’
one
tion”—in that
—“to
activities,
action causes some deterioration
cy
course
into
ultimately
multiple
Nat’l Wild
divided
species’ preaction condition.”
could
be
which,
Fed’n,
actions,
in and of
In other
none of
525 biological opinion relying on a sys- a “reason- new water intake design for the tive development and foreseeable oil sce- funding implemen- “for able tem” and set aside noting 14. nario” that future actions “[i]f Id. at this alternative.” tation of BiOp assumptions, from the 2008 enough had information differ Thus, the Service reinitiate consultation with the to include BLM must system new proposed the about 402.16(b))). § (citing 50 ef- FWS” C.F.R. The analysis potential of its meaningful a to in fu- changes duty in reinitiate consultation the fects, including any anticipated however, ture, the 2 does not diminish Ser- and 5 as a result the of dams operation obligation prepare comprehen- to BiOp. in the 2008 vice’s system, of the new opinion now. biological sive Moreover, uncertainty any of regardless give meaning im- To exhorta- the infrastructure ESA’s regarding proposed agencies on tion ensure that their ac- incumbent the Ser- that provement, was jeopardize tions are “not the information available vice “to use the best endangered biological any existence of comprehensive continued prepare [a] stages species,” the 16 considering species all of or threatened U.S.C. opinion[] Conner, 1536(a)(2), required § F.2d at 1454. the Service was action.” 848 comprehensive biological opinion issue a “incomplete that We concluded Conner Hatchery’s taking long activities view of ef- post-leasing information about trout, explain with on the bull or to ade- comply the failure to fects does not excuse why such effort would statutory comprehen- quately of be requirement unproductive assessing long-term infor- biological opinion using best sive Hatchery’s operations (citing impact 16 U.S.C. mation available.” Here, 1536(a)(2)). held that the bull trout. the Service did § We Service analy- of oil neither. The decision to limit the “develop projections required was five-year to a term may po- which indicate sis gas activities development management and of tential conflicts between arbitrary capricious. protected species.” Id. therefore preservation case, Likewise, in the Service was this B.
required to the best information avail- use able, future including information about justi if the had been Even to consider improvements, infrastructure defining five-year the action as a fied Hatchery’s ongoing oper- effects had the immedi period, it still to consider trout. ations on action and long-term ate and effects a rational connection between ] and the Service remain “articulate! duty facts continuing to reinitiate con found and conclusions made.” under a ef Pac. Fed’n Fishermen’s Ass’ns v. sultation new information reveals Coast “[i]f Reclamation, 426 F.3d may affect listed Bureau fects of (9th Cir.2005). imple ... in manner or to an extent not ESA’s species considered,” menting regulations ac define the “effects of ... previously “[i]f or indirect ef in a manner the action” as “direct and subsequently tion modified species or critical of an action on the species an effect the listed fects causes habitat, biologi together the effects of other ... with that was not considered 402.16(b), (c); that are interrelated interde C.F.R. activities opinion.” cal action, Conner, 42; that will be add pendent n. see F.2d at 1458 see to the environmental baseline.” Kempthorne, Envtl. ed also N. Alaska Ctr. (9th Cir.2006) are § 402.02. Indirect effects (upholding C.F.R. *13 proposed “those are caused bull trout upstream were seen time, and later in still are but are within ten miles or less of reasonably certain to occur.” Id. spawning areas, but it is unknown what (and gender they they were so whether The 2008 found that the Icicle were able to mate with each other or bull population Creek trout is the smallest trout) resident bull or they whether population in local the Wenatchee River spawned. “If only Id. a number small of area core and most to vulnerable extir- migratory pass bull trout can the [Hatch- pation. popula- See 2008 at 66. The ery], probability that the group has a tion trend been negative nearly has skewed sex is greater, ratio simply due to years, since the was constructed. random chance and a small sample size.” See id. Between 1940 and Id. The 2008 BiOp found that order to “[i]n smaller and less fecund resident bull trout positive stabilize achieve a population spawning had access upstream to areas growth trajectory Creek, in Icicle at least Hatchery; emigrating migratory pairs few of male and migratory female bull trout were unable to Al- return. bull trout probably would need to success- though there is little data on the of size fully spawn Icicle Creek annually.” Id. resident bull population, trout the number added). (emphasis And, of spawning individuals assumed to be BiOp also concluded proposed that “the twenty. result, than fewer according As likely reduce, action is still to at least BiOp, “[i]nbreeding depression, years preclude, some genetic drift, demographic and consequences other of genetic very by migratory small contributions bull population significant size are a trout to the small bull popu- resident trout population.” concern for this Id. at 66. lation in Icicle Creek.” (empha- recovery The survival and of the Icicle added). sis If the action prevent would Creek bull population “largely trout de- any migratory bull trout from spawning pendent ability migratory on” the of successfully in years some per- and would to trout reach the historically accessible mit only six gender trout unknown to spawning upstream areas Hatchery. upstream make it years, two then there they larger Id. Because are more pro- way is no the population could meet the lific, returning migratory bull trout would minimum requirements “at stabilize: contribute to the local population by “re- pairs least a few of male and migra- female ducing competition, demographic, distribu- tory bull trout ... successfully spawning] tional, genetic risks.” Id. The Service annually.” Icicle Creek Id. at 49. estimates that 100 to 200 migratory bull Thus, as the 2008 BiOp projected, “long- grounds would visit the spawning negative term [population] trends [within annually “if unimpeded passage pro- were likely Icicle are Creek] to continue.” Id. over period vided a time long enough for at 85. respond.” Id. at 50. During the 2006-2011 opera- The Service failed adequately explain tions, the expects “low numbers” how can squared this conclusion be with its migratory upstream bull trout to travel ultimate determination that the 2006-2011 past Hatchery’s barriers. Id. at 71. and maintenance “reasonably ... “[TJhese fish have the potential expected, would be directly [not] or indi- migrate spawn possibly in upper rectly, to appreciably reduce the likelihood Icicle Creek.” Id. Over the two-year period of both the recovery” survival and from 2006 to total six migratory Columbia River interim unit. 50 “poten- bull trout would Contrary to the dissent’s resident 402.02. C.F.R. during term of the action assertions, tially” occur we make no determi- repeated maintaining and “is to contribute to whether regarding nation improving viability popula- of this local jeopardy no issued rational could have viability of contribution to the continuing negative tion and its light conclusion *14 recovery the and interim unit at core area See Dissent 19625- population trends. the bull populations of trout.” It is our role to decide whether 27. not require BiOp a findings the explains the adequately reason Neither Instead, noted, we jeopardy conclusion. the Service’s find- contradiction between whether the “artic- must determine First, the fact ings and its conclusion. between the ulated a rational connection since population that the local has survived the made.” facts and conclusions found any provide information does Fed’n, 426 at 1090. F.3d We Pac. Coast If longer much it can hold on. about how it must hold that did not. twenty spawning fewer than there are now the continues to with, population and although the Service individuals begin To then, intervention, decline, “at absent some action least re- that the would found zero, eventually duce, the will reach years migra- population preclude” and in some notwithstanding. prior existence long and that local tory spawning bull trout Moreover, ex- population even before is would continue to population trout bull may point which it decline, tinguished, it reach inexplicably that it concluded species no “a can longer cur- is recoverable: likely change action was “not recovery when cling often to survival even and abundance the bull distribution rent Fed., far Nat’l BiOp out of reach.” area.” 2008 at 84. trout the action 931. The Service has not “negative,” as 524 F.3d at trend is population If the then, tipping point pre- found, determined when the id. at ordi- recovery of the Icicle Creek bull cluding fewer fish in English, there will be nary reached, likely to be population trout were in 2006. Yet 2011 than there nor, necessarily, whether will be reached “current distri- that the concluded Service operations and in as result of 2006-2011 the bull trout bution and abundance of Hatchery. maintenance likely change.” is “not the action area” ordinary into again English, Translating Second, a small number discovery there won’t be fewer fish that means upstream bull trout migratory were in 2006. How can 2011 than there not, in in 2006 Hatchery and does be, population given negative findings, BiOp’s other light of the trend? It cannot. support conclusion that the Service’s affect trout 2006-2011 action will not bull two reasons for The 2008 offered Icicle Creek. abundance the “current distribution its dubious conclusion the action was found that and abundance the bull distribution “reduce, years likely pre- and in some likely “not action area” is trout clude, (1) demographic genetic contribu- of the Icicle persistence change”: 1940; trout to the small by migratory tions bull since bull trout Creek trout (2) population.” bull migratory bull resident the detection of six added). True, before (emphasis in 2006 at 71 upstream of the trout migratory were no Elaborating on there id. and 2007. See 84. reason, spawning successfully, under asserted the second and maintenance migratory 2006-2011 periodic breeding few, very dance; al- may possibly—be there habitat suitable maintain/restore — though that is far from certain. But all history conditions for bull trout life positive impact stages from the small number of strategies; ge- and conserve migratory bull trout upstream diversity can provide opportunities netic impact occur if that genetic is not offset exchange.” Id. at In con- number bull trout who are not born or sidering impact die impairs up- unit, because Columbia River interim migration. stream Service concluded: proposed [T]he action is to con- found The Service that between tribute to the survival of the bull trout year began adjust- the first the Hatchery by providing some upstream passage op- upstream its dams to allow some mi- *15 portunities for migratory bull trout gration, year and the second of the Creek, likely Icicle but appreci- is not period, gain: action there was no net “Not ably recovery increase its at the action migratory likely bull enough trout are area, area, unit, recovery core interim passed upstream [Hatchery] have range-wide and it scales because will successfully spawned and between 2001 impair upstream passage migratory to fully offset the [bull reduced trout during optimal bull the period of in- I[mmigration], plus trout] B[irths] flows____However, in-stream the effect Dfeaths], by creased [operations caused improved upstream passage condi- at maintenance] Hatchery].” [the tions proposed caused Moreover, action ... at 49. the 2008 BiOp found improve, should in only albeit a small that stabilizing population the local would way, the contribution of the Icicle Creek require “at a few pairs least male and population local to the survival of the migratory female bull trout ... successful- bull trout. ly id., spawning] in Icicle annually,” Creek but the preclude action would likely reasons, For the above the effects of spawning by migratory bull trout in some implementing proposed [Hatchery] years. why, That presumably, the bot- May from through De- tom line findings Service’s is that as likely cember are not to substan- action, result the 2006-2011 local tively change the capacity of the Co- bull population will de- continue to lumbia recovery River interim unit to noted, cline. As the Service failed to draw provide both the survival recovery a rational link between that finding and its assigned functions it. For that rea- conclusion that the action would not affect son, proposed action not the “current distribution and abundance of appreciably reduce the likelihood of trout in bull the action area.” both the recovery survival and bull trout in the wild.
Nor did the Service articulate a rational
connection
findings
between its
its
Id. at 86-87. This conclusion simply does
ultimate conclusion—that the action would not
finding
account for the
that the num-
not
jeopardy
cause
recovery
unit ber of bull trout
in Icicle Creek would
scale. The Service has identified
fol-
continue to decrease
peri-
over
lowing
“survival and
needs”
od. The
does not explain how a
the Columbia River unit: “maintain
ex-
or
“negative” population
trend
Icicle Creek
pand the current distribution of
could
...
“improve
contribution
areas;
trout within core
maintain stable
Icicle
population
Creek bull trout
or increasing trends in bull trout abun-
that,
survival of the bull
It may
trout.”
be
section,
C.
conjectured
preceding
in the
as we
over
population
local
the decrease
required
was also
The 2008
not
study
under
would
five-year period
of activities interrelat
consider
effects
on
negative impact
“appreciable”
an
action. See
proposed
have
ed
it
uses
But how
402.02.
recovery unit.
50 C.F.R.
interim
100,000
fish
to feed
pounds of
food
about
un-
impact
remains
positive
have
could
year, resulting
the salmon
rears each
clear.
30,000
wastes. See 2008
pounds of solid
also have found
might
The Service
pollution
uses a
80. The
popula-
bull trout
if the Icicle Creek
even
wastes.
pond to collect these
abatement
would
extirpated,
loss
tion were
Periodically,
from the
waste is removed
recovery of the
jeopardize the survival
dry
spread
ground
at the
pond out
recovery unit.
interim
Creek
Columbia
Hatchery.
and it is
finding,
make that
But it did not
Conservancy
contends that the Ser-
extirpation
that the
far from obvious
cleaning
vice did not address the effects of
harmless.
would be
Icicle Creek
pond.
In
pollution
particu-
abatement
pop-
that bull trout
BiOp reports
The 2008
lar,
Conservancy
is concerned about
*16
re-
in
interim
ulations
the Columbia River
from
the effects of runoff
the wastes
declining and are
covery
generally
unit are
Hatchery.
land
The 2008
spread on
at the
the occu-
strong
percent
in
6 to
of
reports that the fish food used at the
at 19. The Wenatchee
pied range. See id.
Hatchery
very
“is a source
small
biphe-
particularly important
[polychlorinated
is
amounts of PCBs
River core area
the
nyls],” although samples collected from
because it is a “rela-
the
unit
in
layer
pollution
the
top
sediments
stronghold”
upper
for bull trout in the
tive
pond
not have significantly
abatement
“did
Further,
at
area.
Id.
36.
River
Columbia
elevated levels of PCBs.” Id. at 66. The
population
impor-
is
the Icicle Creek local
Conservancy
that runoff associat-
worries
in
tant to the core area because its location
pollution
of the
abate-
cleaning
ed with
popula-
basin
insulate this
the lower
“could
pesti-
pond may
ment
contain PCBs and
upper
from disturbances
basin
tion
adversely
affect
trout.
cides
could
bull
most of the
that would affect
others.”
that the 2008
agree with the Service
We
em-
argument,
50. At oral
the Service
at
BiOp adequately considered the effects
the Icicle
buffer
function
phasized
In the
entitled “Release of
runoff.
section
might play if other local
Creek
Creek,”
into
Effluent
Icicle
the Service
core area were threat-
populations
pollution
of the
operation
described
ened.
pond
noted that it was last
abatement
sum,
“obligated
In
in 2007. Id. at 80.
It concluded
cleaned
a rational connection between
articulate
“hatchery effluent release into Icicle
made.”
facts found and the conclusions
cause
effects
unlikely
adverse
Creek
(internal
Fed.,
trout.” Id. at 81.
tribal is from D. prohibition. the ESA’s take See C.F.R. 17.44(w)(2). § Nonetheless, the Conser- When the Service concludes that a vancy Hatchery maintains that the takes proposed agency jeopardize action will not by closing during bull trout dam the bull the continued existence of the species but spring migration, trout’s which results in is likely takings, to result incidental it large numbers of bull trout lingering the issues an “incidental take statement” with spillway pool, they where may prey fall biological the opinion. 16 U.S.C. anglers fishing tribal for Chinook salmon. 1536(b)(4); § § 50 C.F.R. 402.14®. If this “take” were included in the State- impact statement “specif[y] must the ment, Hatchery then the would be re- such taking incidental on the species,” as quired comply with pru- reasonable and well prudent as “those reasonable and dent to minimize measures the take. See ... necessary measures appropriate 1536(b)(4). § 16 U.S.C. impact.” minimize such 16 U.S.C. 1536(b)(4). The statement a acts as safe We that it conclude was reasonable for harbor, exempting specified the amount of the Service not to attribute to the Hatch incidental from taking prohibition ery by the take bull anglers. the take of trout tribal during section “If rights ESA 9. the course of fishing Tribal in Icicle are Creek numerical, may the agree ger is but Service use by treaties other guaranteed example, changes in surrogate a eco- States ments. See United Confederated —for Reservation, affecting logical species. conditions Indian Tribes Colville 698(9th Cir.2010). used, If is Although surrogate Id. at 1250. F.3d increase must articulate rational connec- Hatchery’s do operations surrogate taking tion lingering numbers bull trout between change species. at 1250-51. court pool, This spillway were spill rejected surrogate trigger vague the result that the has so with it failed to a clear productive “provide less as Chi standard way pool became area, determining fishing for when authorized level nook salmon exceeded,” id. very obligated provide of take has been might well be surrogate spotted fish and a so broad—“all locations for the tribal alternative it taking project result in associated with the might also owls” ery —that —which by adequately trigger tribal reinitiation trout. Take of bull trout “could of bull Natural Coun- from the ESA wherever of consultation.” Or. Res. anglers exempt Allen, occurs, are Cir. regulations as tribal cil v. F.3d long it 2007). Hatchery responsi Holding followed. anglers would be tribal
ble take that the The Service contends Statement exempt incongruent special rule provides a clear adequate because take fishing tribal from the ESA’s cap twenty trout numerical take — arbitrary It was therefore not prohibition. from which prevented spawning beyond— to exclude capricious for must be reinitiated. Unlike consultation fishery from associated with tribal take takings discussed anticipated the other the Statement. Statement, however, twenty-bull accompanied by limit is not a moni- reporting requirement. For toring Second, argues Conservancy example, requires Statement does not include ade that the Statement report to monitor and the num- *18 The monitoring requirements. quate types caught and of fish the water ber twenty anticipates up that Statement system. intake 2008 at 94-95. See injured will be each migratory bull trout then, question, is whether the consult- sig Hatchery operations will year, because only agency responsible provid- is for ing nificantly breeding their behavior disrupt cap, upit to the action leaving a clear delaying spawning their by preventing or con- to monitor take and reinitiate agency Yet, migration. the Statement does met, trigger when or sultation is Hatchery to re require the monitor and consulting agency must also whether the of trout so port the actual number monitoring reporting require- and set out harmed. ments. implementing regulations set The ESA’s Take Statements
“Incidental reached, that order to monitor the that, results provide “[i]n when ‘trigger’ forth take, take, the Federal impacts incidental in an level incidental unacceptable report must agency applicant or invalidating provision, harbor the safe its impact progress consul of the action parties to re-initiate requiring the as species specified v. Growers’ Ass’n tation.” Ariz. Cattle take statement.” 50 C.F.R. Wildlife, F.3d the incidental Fish & 273 U.S. added). 402.14(i)(3) 1249(9th Cir.2001). reg- (emphasis Preferably, trig- 532 gations
ulation makes the Service is as long challenging party clear as the responsible specifying point the statement can to no new information undercut is agency how the to monitor and ting opinion’s Pyramid conclusions. report the effects of the action on listed Lake Paiute Tribe Dep’t Indians v. U.S. species. Navy, 898 F.2d 1415 Cir. 1990). opinion’s Where the flaws are “le Here, the has clear set a numer- nature,” however, gal in “[discerning them ical but a numerical cap, cap is useful requires no exper technical scientific capable insofar the action tise,” may and the failure do so result in quantifying take determine when the “an reasoning action based on ‘not in ac trigger has been met. See Or. Natural with cordance law1and ... arbitrary thus Council, Res. 476 F.3d at (explaining and capricious.” Wildlife, Defenders the incidental take statement must F.3d “set a clear for determining standard when Here, legal the authorized level of ha[s] take been Service committed error exceeded”); Council, by limiting scope Natural Res. of the action to five Def. Evans, years; Inc. F.Supp.2d failing articulate a rational con- (N.D.Cal.2003), approval cited with nection between findings Or. its in the 2008 Council, conclusion; Natural Res. F.3d at and its jeopardy no (“It arbitrary and capricious issuing inadequate to set an incidental take state- trigger at one animal unless ment. The Hatchery’s defendants on a legal- reliance adequately ly can taking biological opinion detect the of a sin- flawed arbitrary animal.”). gle Thus, capricious. the Service must The Hatchery ei- therefore specify monitoring ther reporting violated its duty re- substantive to ensure that quirements respect twenty-bull and maintenance did not or, trout limit if appropriate, jeopardize select sur- continued existence of the rogate trigger that can be bull trout. monitored.
Therefore, we hold the ITS failed to III.
establish meaningful trigger for renewed consultation after take exceeded au- We conclude that the 2008 is arbi- thorized levels. trary capricious because the Service
limited analysis to a five-year period, E. failed to articulate a rational connection between the facts found and the conclu- Finally, ESA section also im made, sions and issued an incidental take poses on the a substantive duty *19 statement lacking adequate monitoring operations ensure that its are not likely reporting and requirements. Additionally, to jeopardize the continued existence of violated its duty substantive the bull trout. “Arbitrarily capricious and that operations ensure its jeop- did not ly relying faulty on a Biological Opinion ardize the continued existence of the bull this duty.” violates Defenders of Wildlife trout. We reverse and remand to the EPA, 946, Cir.2005), F.3d grant district court with directions to grounds, rev’d on other Nat’l Ass’n of Conservancy’s summary motion for judg- Home Builders v. Wildlife, Defenders of grant injunctive ment relief until 644, 551 U.S. 127 S.Ct. 168 L.Ed.2d the Service complies obligations with its (2007). An agency’s reliance on a under the ESA. biological opinion based on “admittedly weak” information satisfies its ESA obli REVERSED and REMANDED. programs in all activities or kind FISHER, Judge, concurring Circuit authorized, funded, out, or carried in dissenting part: in part in in part, by agencies whole or Federal litigation, the U.S. Prompted by this upon high States or seas. United attempted to has Fish and Wildlife Service include, are not Examples but limited minimize of the Leavenworth the effect directly indirectly causing ... actions or (“the Hatchery”) National Fish land, water, modifications to the or air. of bull trout the small 50 C.F.R. 402.02. majori- colleagues in the My Icicle Creek. Here the Service had a reasonable ratio- to meet these efforts insufficient ty find scope limit the nale to Species Endangered the strictures Biological Opinion considered the 2008 (“ESA”) bur- place two substantial Act five-year period: projected to a com- (“the the Fish and Wildlife Service dens on system of a new water intake pletion Service”) require. that the ESA does im- will reduce annual adverse First, majority requires the Service pacts completed. on the bull trout when an and maintenance on address Serv., Biological Fish & See U.S. horizon, despite planned time unlimited Opinion Operation and Mainte- that will further reduce the modifications nance the Leavenworth National Fish trout. Sec- Hatchery’s impact on (2008) Hatchery Through at 14-15 ond, majority requires the Service to (“2008 BiOp.”). As both the 2008 70-year popula- of a attribute continuation accompanying and the Incidental Take Hatchery opera- planned tion decline to (“ITS”) acknowledge, the cur- Statement tions, recognizing that trend rather than system rent water intake harms bull trout that caused structures annually, majority recognizes and the respectfully I dis- environmental baseline. improving system require this will new majority’s aspects from these sent n. 2. BiOp. Op. See at 519 The Service opinion. intends to undertake a broader habi- also project Hatchery. tat restoration at the Although project begin this cannot until I. adequate funding has been secured majority first concludes that occurred, has see 2008 further consultation arbitrarily capriciously by Service acted significant BiOp at it demonstrates five-year term limiting analysis im- between the environmental differences and Mainte- Operations of the 2006 to 2011 pacts during covered Plan”). (“the Op. Plan See nance O&M Per- operations. O&M Plan and future notes, majority As the Section 521-25. allowing the haps importantly, most Ser- consultation concern- requires of the ESA circumstances to define an vice these may “jeopardize ing any agency action multi-year operation of an action as the endangered existence of an the continued analy- renewed ongoing program promotes species species or threatened or result data, growing on a foundation of sis based modification of the destruction or adverse experiments. The analysis mitigation *20 species.” of such 16 U.S.C. habitat that majority’s contention 1536(a)(2). ac- agency thirty-year § The defines “might easily ESA as have chosen funded, term,” 522, authorized, one-year Op. or or a “any tion as term ap- unfairly agency’s The of the reason- by agency.” out such dismissive carried ground to the facts on the response further defines “action” able plicable regulation (and river). in the as It quite seems reasonable for the Ser sidered these “indirect effects.” im present vice to assess the and future Although at 67. acknowl pacts operations of a fixed of rather edged proposed unlikely that the action is than to assess on an indefinite prevent “to migratory number of horizon, require time which would the de spawners being large from enough to monstrably assumption false that the Ser trend, increasing population cause an or to meaningfully vice will never Hatch change fully alleviate long-term genetic risks to ery operations. Pac. Coast Fed’n 85, population,” id. at given Cf. of that the Fishermen’s v. Ass’ns U.S. Bureau Rec population persisted has years for over 70 (9th lamation, 1082, 426 F.3d 1088-92 Cir. migratory without access to spawners, it 2005) (faulting 10-year BiOp failing was not irrational for the Service to con explain why mitigating action was de years clude that five additional of limited nine, layed year until being not for limited access would not “reduce appreciably the years). to 10 majority’s repeated as likelihood of both the survival and recov BiOp addressing years sertion that a five ery” population, of the local let alone the operation management is not a 402.02; § interim unit. 50 C.F.R. “ ‘comprehensive biological opinion[ con ] Am. Army Corps Rivers U.S. cf. ” action,’ sidering stages all (D.D.C. 230, Engrs., F.Supp.2d 254-55 Op. at (quoting 524-25 Conner v. Bur 2003) (finding that plaintiffs were (9th ford, Cir.1988)), 848 F.2d succeed on the Army merits because the begs question and fails to afford the “narrowly Corps analysis focus[ed] its Service appropriate flexibility to define the impacts high summer flows scope of its action. majority guaran year on ... only, this instead of evaluating ongoing tees that an program that fails to present both the and future effects remedy immediately slowly declining ” 2003 low (emphasis summer add flows population will be to jeopardize found ed)). BiOps may Future find contin existence of a threatened or endangered operation ued will push species. the Icicle Creek to a tipping A BiOp addressing a fixed oper term of point, but the BiOp provides a ration can long-term ations and must address explanation al why particular this O&M However, implications. ESA consultation appreciably Plan will not increase the like only long-term need address effects of the lihood that point such a will be reached. issue, agency action at rather than addi Rejecting appellant’s challenge to the tional agency may may actions not, 2008 BiOp would majority envi- occur in the future. See 50 C.F.R. sions, by authorize death of the bull trout (defining 402.02 “indirect effects” as thousand cuts. A short-term “those that are rea- proposed caused time, sonable this case action and because the Service are later are but still plans major improvements in reasonably certain the near (emphasis to occur” added)); term that significantly will Nat’l alleviate the Fed’n v. Nat'l Ma Serv., rine bull trout take. Fisheries Should Service contin- Cir.2008) (“[T]he ue to resort proper analysis BiOps baseline short-term future, however, is ... jeopardy might approach what result from the would be agency’s proposed increasingly ESA, present unlikely satisfy actions regardless future human and natural justification. contexts.” Allowing (internal quotation marks and citations this short-term BiOp would not foreclose omitted)). BiOp expressly The 2008 analysis con future period of time *21 activity beyond exploration action would reduce included agency’s which BiOp. reviewed in the See id. at phase likelihood” of survival “appreciably 1443-44, Conner, 1452. Op. (empha- 522-23 Unlike O&M recovery. Contra Indeed, activity beyond Plan not authorize a reasonable defi- does original). in sis scope BiOp; surely pur effect would duration appreciable nition of an pose planned complete net decrease of five to ten activities include “a id., five-year period”, agency at the end of the authorized action. bull trout over [a] (“ ‘[P]umping id. at 1453 oil’ and not starting population is believed when Cf. ‘leasing congressional tracts’ is the aim of spawning fewer than 20 individu- number is, BiOp leasing].” (quoting Slope at 66. There how- North [mineral als. See 2008 Andrus, ever, Borough in the record for the v. support no (alterations 608(D.C.Cir.1980) likely during origi notion that such a decline is nal))). BiOp, let period addressed that the Service would continue alone The D.C. Circuit’s decision Cabinet similar, conclusions if no-jeopardy reach Peterson, Mountains v. Wilderness to occur a sec- cumulative decreases were (D.C.Cir.1982), provides F.2d a ond or third time. apt analysis. more Cabinet Mountains a that majority approved fears that the Ser- Wilderness ad- Finally, the only three-year exploration plan dressed a permit would serial reductions vice “[a]pproval expressly until “role in because limited Icicle its Creek proposed exploratory drilling unit to the aetivi- recovery interim so diminish- [is] ties[, to reduce further activities such as devel- ed, and] that its loss could not be said opmental exploration of survival and or mineral extraction appreciably the likelihood recovery require comprehensive interim unit.” would examina- recovery of the But, if the tion of environmental effects.” Id. (emphasis original). Op. Although place the D.C. Circuit did not its population plays sig- small Icicle Creek role, imprimatur on the duration of the importance express must be nificant diversity, drilling rejected plaintiffs’ con- genetic geographic plan, based on gross tention that the failed to account for population’s contribution impacts grizzly if short-term cumulative habitat and numbers. Even one or more concurrent “timber further re- determined permitted small assessments sales and roads were relevant address- population, in the Icicle Creek ductions problem impacts.” of cumulative geographic importance genetic majority’s remain un- Id. at 683-84. The dismissal interim unit would in a diversity Mountains Wilderness foot- changed, and the loss of this Cabinet note, grapple Op. taken into account in see at 522 n. fails to would have be recognize I with the decision. Cabi- jeopardy future assessments. did not ex- net Mountains Wilderness this case majority tries to shoehorn agency may segregate that an pressly hold into the rule we Conner established BiOp, in a but operations a fixed 1441(9th Cir.1988). Burford, F.2d See hold that an expressly Conner did not point. is not on Op. at 521-22. Conner Moun- agency may not do so. Cabinet ap- we held that an incremental There remains the more analo- tains Wilderness permissible was not proach to authority. gous scope planned when the BiOp addressing faced with a federal land for oil ex- We are action—a lease of five-year plan distinct development production— ploration, *22 536
management, using existing infrastructure 50 402.02. planned C.F.R. Of course prior planned improvements. operation Unlike maintenance of the Hatch- Conner, ery cannot BiOp be included in the approved addresses the baseline. Fed’n, See Nat’l 524 agency action in F.3d at 930- entirety. its And like Wildlife (“Although 31 Wilderness, acknowledge we Cabinet Mountains the O&M existence of the dams must be included in expressly Plan is peri- limited to a limited baseline, the environmental operation activities; od range further of the dams is within agencies’ the federal operation require will renewed environ- discretion....”). The BiOp correctly mental I part review. therefore company determined that the O&M Plan will harm my colleagues’ conclusion that the Icicle Creek population. trout decision to address years five of man- See, (“The e.g., BiOp at 85 proposed agement activities arbitrary capri- was action is impaired to cause passage cious.
conditions for the bull trout in Icicle Creek
”).
year....
each
however,
BiOp,
The
in-
II.
presence
cluded the continued
facilities,
including obstructions
majority
to bull
impossible
holds that it is
migration put
in place during past
jeopardy
issue
rational no
conclusion
operations,
components
of the environ-
light
of the Service’s
finding
“long-
32;
mental baseline.
BiOp
See 2008
at
negative
term
[population] trends[within
Fed’n,
(“The
Nat’l
with by species, preserving vival of the both current distribution likely change diversity in genetic the short term and of the bull trout and abundance widening the time frame which further BiOp By reduc- action area.” 2008 84. can improvements be made to reverse the preexisting in which obsta- entirely. importantly, any trend More spawning passage of bull trout cles bar analysis contradiction this is irrelevant Plan reduced the rate grounds, the O&M broader conclusion that Service’s decline, and have no reason to disbe- we proposed “the action ... is not that the conclusion mar- lieve Service’s Bull appreciably [the Trout’s] increase re- year period— ginal decline over five area, area, covery at the action core inter- are made to the in- improvements while unit, range-wide im scales.” system plans are laid for habitat take BiOp at 86. affect distribution rehabilitation —would abundance in an ecologically meaning- [******] guarantee ful manner. This does sum, In provided rational fish in 2011 than there “won’t be fewer jeopardy basis for its no conclusion. To But that Op. were 2006.” there requires neglecting conclude otherwise by claim made was never distrusting environmental baseline and necessary no-jeopardy to its conclu- is not analysis agency experts’ scope sion. decline, population relevance of continued majority also contends that the 2008 mitigated by remedial action. I BiOp “explain ‘negative’ fails to how a disagree my colleague’s therefore ‘im- trend in Icicle Creek could population analysis conclusion that Service’s prove ... the contribution of the Icicle irrational. For the 2008 these to the survival Creek bull reasons, respectfully I dissent from Parts ” Op. (quoting of the bull trout.’ at 528 II.A, II.B, majority II.E and III. of the 86-87). however, majority, opinion, but otherwise concur. phrase quoted a crucial from the omits text. The states in full:
However, improved up- the effect of passage by
stream conditions caused action,
proposed as evidenced some
migratory bull trout observations
spawning habitat within Icicle Creek