National Wildlife Federation v. National Marine Fisheries Service, 481 F.3d 1224 (9th Cir. 2007).

Josh Clemons, M.S., J.D., MS-AL Sea Grant Legal Program

On April 9, 2007, the U.S. Court of Appeals for the Ninth Circuit issued another opinion in the seemingly endless litigation over salmon and the Federal Columbia River Power System (FCRPS). This chapter of the saga finds the federal government on the losing end, as the appeals court upheld the Oregon district court’s rejection of the 2004 Biological Opinion for the operation of the FCRPS.

Background
The Columbia River and its tributaries, including the Snake and the Willamette, provide Pacific salmon with vital access to their spawning grounds in the Columbia Basin. These majestic fish, in addition to their financial and symbolic value to the people of the region, are protected by the Endangered Species Act (ESA) because of their declining numbers.

A major cause of that decline is the FCRPS, which, ironically, is also of enormous financial and symbolic value to Pacific Northwesterners. The mighty dams of the Columbia and Snake rivers, immortalized in song by Woody Guthrie, provide the region with irrigation water, flood control, and cheap, clean, renewable energy, as they are required to do by their authorizing statutes. Unfortunately they are difficult for migrating salmon to bypass, even when the dams are equipped with fish ladders and other structural measures.

The conflicting imperatives that Congress has issued – operate the FCRPS to “assure the Pacific Northwest of an adequate, efficient, economical, and reliable power supply”1 and simultaneously ensure the survival and recovery of endangered fish that are inevitably harmed by that operation – form the crux of this litigation.

The ESA obligates any federal agency that is taking an action that may affect ESA-listed salmon to consult with the National Marine Fisheries Service (NMFS, also known as NOAA Fisheries) to ensure that the action is not likely to jeopardize the species or its critical habitat. Because operation of the FCRPS is such an action, the agencies who operate it (the U.S. Army Corps of Engineers and the Bureau of Reclamation, known as the “action agencies”) must consult with NMFS on their proposed operating plan. After consultation NMFS issues a Biological Opinion, or BiOp, on whether the species and habitat in question will be jeopardized by the action. A “jeopardy” opinion means the proposed action must be modified to avoid jeopardy.

The 2004 BiOp
The 2004 BiOp was NMFS’ third attempt at addressing the FCRPS’ effects on certain species of salmon. The first two, in 1993 and 2000, failed to pass legal muster because they relied on unexplained assumptions and uncertain mitigation actions, respectively.

To circumvent the previous BiOps’ difficulties NMFS took three creative approaches to its jeopardy analysis in the 2004 version. First, the agency deemed much of the operation of the FCRPS to be non-discretionary because of statutory directives for irrigation, flood control, and power generation, and thus excluded from the jeopardy analysis, which addresses only discretionary actions. Second, NMFS used a “segregated” jeopardy analysis, in which the environmental baseline, cumulative effects, and current species status were considered separately rather than in the aggregate, as is normally done. Third, the 2004 BiOp did not contain analysis of the impact on the species’ chances of recovery (as opposed to mere survival), as earlier BiOps had.

A coalition of environmental groups led by the National Wildlife Federation sued NMFS and the action agencies on the grounds that these creative approaches, as well as NMFS’ allegedly inadequate consideration of effects on critical habitat, violated the ESA. The district court in Oregon ruled for the plaintiffs, and the federal agencies appealed the decision to the Ninth Circuit.

The Ninth Circuit Opinion
The appeals court agreed with the district court’s conclusion that the 2004 BiOp did not satisfy the ESA’s requirements. The court rejected NMFS’ “cramped view” of discretionary actions, observing that no federal agency - NMFS included - had ever interpreted “discretionary” so narrowly, and that NMFS’ interpretation did not accord with regulations or case law.2 In reality, the court opined, “aspects of FCRPS operations…are within the agencies’ discretion.”3 The competing mandates imposed by Congress simply require the agencies to balance their obligations.

The court also rejected NMFS’ segregated jeopardy analysis because it failed to place the salmon’s endangered status within a realistic context. Under NMFS’ scheme, too many potentially jeopardizing factors were being pushed below the environmental baseline, which could allow the species to “be gradually destroyed, so long as each step on the path to destruction is sufficiently modest.”4 This, the court reasoned, was incompatible with the ESA.

The ESA regulations forbid agencies to take actions that would “reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild.”5 NMFS interpreted the conjunctive “and” extremely literally, such that an action that threatened a species’ recovery would be permissible if it did not also threaten the species’ survival. The court did not find this interpretation persuasive because it would essentially remove the word “recovery” from the regulation. Furthermore, this interpretation was contrary to NMFS’ own prior interpretations, which entailed a joint analysis of survival and recovery impacts.

Lastly, the court found fault with NMFS’ failure to ensure that FCRPS operations would not adversely affect the salmon’s critical habitat. The agency gave inadequate weight to short-term adverse effects and relied too heavily on future mitigation measures that, in the court’s opinion, were not sufficiently likely to occur. NMFS also made decisions in the absence of adequate information about the in-river survival levels necessary to support recovery of the endangered fish.

Conclusion
Because of these significant flaws in the 2004 BiOp, the Ninth Circuit upheld the district court’s remand of the document to NMFS so that the agency could produce a BiOp that satisfies the requirements of the ESA.

Endnotes
1. Northwest Power Act, 16 U.S.C. § 839(2).
2. National Wildlife Federation v. National Marine Fisheries Service, 481 F.3d 1224, 1234 (9th Cir. 2007).
3. Id.
4. Id. at 1235.
5. 50 C.F.R. § 402.02.

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