Native Fish Society v. National Marine Fisheries Service et al

Filing 241

Opinion and Order Signed on 1/16/2014 by Judge Ancer L. Haggerty. Plaintiffs' Motion to Strike 215 is DENIED, plaintiffs' Motion for Partial Summary Judgment 162 is GRANTED IN PART and DENIED IN PART, and federal defendants' Cross Motion for Partial Summary Judgment 179 is GRANTED IN PART and DENIED IN PART. The parties are ordered to confer regarding remedies. A joint status report or briefing schedule is due January 22, 2014. (sp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

NATIVE FISH SOCIETY and
MCKENZIE FLYFISHERS,
Plaintiffs,

Case No. 3:12-cv-00431-HA
OPINION AND ORDER

v.
NATIONAL MARINE FISHERIES
SERVICE; REBECCA BLAL'JK, Acting
Secretary of the Depatiment of Commerce;
WILLIAM STELLE, Regional
Administrator, NMFS; OREGON
DEPARTMENT OF FISH AND WILDLIFE;
BRUCE MCINTOSH, Assistant Fish
Division Administrator, ODFW; CHRIS
WHEATON, Northwest Region Manager,
ODFW; and ROY ELICKER, Director,
ODFW,
Defendants.

HAGGERTY, District Judge:
Plaintiffs, the Native Fish Society and McKenzie Flyfishers, filed this action for
declaratory and injunctive relief against the National Marine Fisheries Service (NMFS); William

1 - OPINION AND ORDER

Stelle, Regional Administrator NMFS; Rebecca Blank, Acting Secretary of the Department of
Commerce (collectively "federal defendants" or "NMFS"); the Oregon Department ofFish and
Wildlife (ODFW); Bruce Mcintosh, Assistant Fish Division Administrator, ODFW; Chris
Wheaton, Northwest Region Manager, ODFW; and Roy Elicker, Director, ODFW (collectively
"state defendants" or "ODFW"). Plaintiffs seek to compel defendants to comply with the
Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq., the National Environmental Policy Act
(NEPA), 42 U.S.C. § 4321 et seq., and the Administrative Procedures Act (APA), 5 U.S.C. § 551

et seq., in authorizing, fi.mding, and managing the Sandy Hatche1y. Following this comi's ruling
(120] on plaintiffs' Motion for Temporary Restraining Order/Preliminary Injunction (58],
plaintiffs' only claim against state defendants, that state defendants' operation of the Sandy
Hatchery causes "take" of threatened fish species in violation of§ 9 of the ESA, was stayed. 16
U.S. C.§ 1538(a)(l)(B). Thereafter, over the objections offederal defendants, the court
determined [161] that it would consider certain materials outside the administrative record in
evaluating plaintiff's claims pursuant to the APA in-so-far as those materials assist the court in
determining whether NMFS considered all relevant factors and in understanding technical te1ms
or complex subject matter. Plaintiffs and federal defendants have each moved for partial
summmy judgment. Plaintiffs also move to strike ce1iain extra-record evidence submitted by
defendants. The Association of Northwest Steelheaders, the Northwest Sportfishing Association,
and the Northwest Guides and Anglers Association have filed an amicus brief in opposition to
plaintiffs' Motion for Pmiial Summmy Judgment. Oral argument was held on Janumy 8, 2014.
For the following reasons, plaintiffs' Motion to Strike [215] is denied, Motion for Partial
Summmy Judgment [162] is granted in part and denied in pmi, and federal defendants' Cross
Motion for Partial Summmy Judgment [179] is granted in pati and denied in part.
2 - OPINION AND ORDER

BACKGROUND
PlaintiffNative Fish Society is an environmental nonprofit organization dedicated to the
conservation of native, wild fish in the Pacific Northwest. Plaintiff McKenzie Flyfishers is a
non-profit, membership-based, fishing conservation group located in Eugene, Oregon. Plaintiffs
advance six claims for relief in the Second Amended Complaint alleging that state defendants'
operation of the Sandy Hatchery causes "take" of threatened fish species in violation of § 9 of the
ESA, and that NMFS' approval and funding of the Sandy Hatchery's operations violates the ESA,
NEP A, and the AP A. Plaintiffs and federal defendants each move for summary judgment on
plaintiffs' Third, Fomih, Fifth, and Sixth Claims for relief. At this time, litigation conceming
plaintiffs' First and Second Claims has been stayed.

A.

Overview of the Endangered Species Act

The purpose of the ESA is "to provide a means whereby the ecosystems upon which
endangered species and threatened species depend may be conserved, [and] to provide a program
for the conservation" of such species. 16 U.S. C. § 1531(b). The Secretaty of the Interior must
list species that are endangered or threatened with extinction. Id § 1533(a).
Section 9 of the ESA prohibits the "take" of any species listed as "endangered" under the
ESA. 16 U.S. C.§ 1538(a)(1). The ESA defines "take" to mean "harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." !d. §
1532(19). The ESA's implementing regulations further define "hmm" as an "act which actually
kills or injures wildlife" and "may include significant habitat modification or degradation where

it actually kills or injures wildlife by significantly impairing essential behavioral pattems,
including breeding, feeding or sheltering." 50 C.F.R. § 17.3; Babbitt v. Sweet Home Chapter of

Cmtys.for a Great Or., 515 U.S. 687, 696-700 (1995) (upholding the regulatory definition of
3 , OPINION AND ORDER

''hatm").
Section 9, on its face, does not provide a blanket protection from take to "threatened"
species. However, § 4(d) of the ESA provides that NMFS shall "issue such regulations ...
necessary and advisable to provide for the conservation of such [threatened] species." 16 U.S.C.

§ 1533(d). Pursuant to§ 4(d), § 9's take prohibition has been extended to threatened anadromous
fish, including the species at issue in this case. Endangered and Threatened Species; Final Rule
Governing Take of 14 Threatened Salmon and Steelhead Evolutionary Significant Units, 65 Fed.
Reg. 42,422,47,475-81 (July 10, 2000); 70 Fed. Reg. at 37,194 (amending 2000 rule) (codified
at 50 C.F.R. § 223.203).
As a part of the 4(d) rule, NMFS established exceptions to§ 9's take prohibition known
as "4(d) Limits." I d. Limit 5 creates an exemption from § 9's take prohibition for otherwise
unlawful take of anadromous fish caused by a hatchery's miificial propagation program so long as
the hatchery is operated pursuant to a hatche1y genetic management plan (HGMP) approved by
NMFS. 50 C.F.R. § 223.203(b)(5). Among other things, a HGMP must have "clearly stated
goals, performance objectives, and performance indicators that indicate the purpose of the
program, its intended results, and measurements of its performance in meeting those results." Id.
at § 223.203(b)(5)(A). An approved HGMP must evaluate, minimize, and account "for the
propagation program's genetic and ecological effects on natural populations, including disease
transfer, competition, predation, and genetic introgression caused by the straying of hatche1y
fish." Id. at § 223 .203(b)( S)(E).
Section 7 of the ESA imposes affirmative duties on federal administrative agencies to
conserve listed species and to prevent violations of§ 9. Section 7(a)(2) of the ESA requires
federal agencies to "insure that any action authorized, funded, or canied out by such agency ...
4 - OPINION AND ORDER

is not likely to jeopardize the continued existence of any endangered or threatened species or
result in the destruction or adverse modification" of such species' critical habitat. 16 U.S.C. §
1536(a)(2). Whenever a federal agency detennines that a proposed action "may affect listed
species or critical habitat," that agency must prepare a biological assessment on the effects of the
action. 50 C.F.R. § 402.14(a); 16 U.S. C.§ 1536(c). If the agency detennines that the proposed
action is likely to adversely affect a listed species or critical habitat, the agency must consult with
a consultation agency (NMFS or the Fish and Wildlife Service) to determine whether the agency
action is likely to jeopardize that species or adversely modify its critical habitat. Jd; 16 U.S.C. §
1536(c). In this case, NMFS is both the action agency and the consultation agency.
Once formal consultation is initiated, NMFS must review all relevant information and
f01mulate a biological opinion (BiOp) regarding whether the action is likely to result in jeopardy
to a listed species. 50 C.F.R. § 402.14(g). NMFS "shall use the best scientific and commercial
data available" in determining whether an agency action is likely to result in jeopardy to a listed
species. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a). IfNMFS determines that an agency
action is likely to jeopardize the continued existence of a listed species, NMFS must suggest
reasonable and prudent alternatives to the proposed action, if any exist, that would not result in
suchjeopardy. Jd. § 1536(b)(3).
IfNMFS concludes that a proposed action is not likely to jeopardize the continued
existence of a listed species or result in the destruction or adverse modification of critical habitat,
but determines that the action will neve1iheless result in the take of listed species, NMFS must
issue an incidental take statement (ITS). 16 U.S.C. § 1536(b)(4). An ITS authorizes the limited
take of listed species that would otherwise violate§ 9's "take" prohibition. Jd.; 50 C.F.R. §
402.14(i). The ITS must specify measures to limit and measure take. Jd. If during the course of
5 - OPINION AND ORDER

the subject action, the conditions of the ITS are exceeded, the action agency must reinitiate
fmmal consultation pursuant to§ 7(a)(2). 50 C.F.R. § 402.16(a).

B.

Overview of the National Environmental Policy Act

NEPA requires federal agencies to prepare a "detailed statement on ... the environmental
impact" of "major Federal action significantly affecting the quality of the human environment."
42 U.S.C. § 4332(2)(C)(i); see also 40 C.F.R. § 1500.2. The purpose ofNEPA is: (1) to ensure
the agency "will have available, and will carefully consider, detailed infmmation concerning
significant environmental impacts" of its decisions; and (2) to guarantee that this information will
be available to the public. Robertson v. lvfethow Valley Citizens Council, 490 U.S. 332, 349
(1989). NEPA is a procedural statute that does not mandate pmiicular results, but simply
proscribes the process by which decisions affecting the environment must be made. Sierra Club

v. Espy, 38 F.3d 792, 796 (5th Cir. 1994).
An agency must "integrate the NEP A process with other planning at the earliest possible

time to insure that planning and decisions reflect environmental values." 40 C.F.R. § 1501.2;

Andrus v. Sierra Club, 442 U.S. 347, 351 (1979). The agency must prepare a detailed
environmental impact statement (EIS), "[i]fthere is a substantial question whether an action may
have a significant effect on the environment." Ctr.for Biological Diversity v. Nat'! Highway

Traffic Safety Admin., 538 F.3d 1172, 1185 (9th Cir. 2008) (quotation marks omitted). To
determine whether an EIS must be prepared, the agency may prepme an environmental
assessment (EA). 40 C.F.R. § 1501.4(b). An EA is a concise public document that briefly
describes the need for the proposed action, and examines the environmental impacts of the
proposed action and alternatives to that action .. 40 C.F.R. § 1508.9. If the agency makes a
finding of no significant impact ("FONSI") after completing the EA, then an EIS is not required.
6 - OPINION AND ORDER

Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1356 (9th Cir. 1994).
C.

Factual Background

The Sandy River flows from its headwaters on the west side ofMt. Hood to the Columbia
River east of Portland, Oregon. The Sandy River's watershed encompasses approximately 508
square miles and includes the Bull Run River, the Salmon River, the Little Sandy River, Cedar
Creek, and the Zigzag River among its tributaries. In 2007 and 2008, the Marmot Dam on the
Sandy River and the Little Sandy Dam on the Little Sandy River were removed. Prior to their
removal, they served as artificial baniers to nmmal fish migration and spawning for nearly 100
years. The Sandy River Basin is divided between upper and lower basins delineated at the
former site of the Marmot Dam. The upper Sandy River Basin has been designated as a wild fish
sanctuary.
In 2005 and 2006, NMFS issued final listing decisions designating four fish species that
use the Sandy River Basin as threatened: the Lower Columbia River Chinook Evolutionmy
Significant Unit (ESU), Lower Columbia River coho ESU, Columbia River chum ESU, and
Lower Columbia River steelhead Distinct Population Segment (DPS). 1 Endangered and
Threatened Species; Final Listing Detetminations for 16 ESUs of West Coast Salmon, 70 Fed.
Reg. 37,160 (June 28, 2005); Endangered and Threatened Species; Final Listing Determinations
for 10 Distinct Population Segments of West Coast Steelhead, 71 Fed. Reg. 834 (Jan. 5, 2006).
Each of these fish species is at a moderate to vety high risk of extinction.
The Sandy Hatchety utilizes an miificial fish propagation program and releases hatchery-

1

The ESA defines species to include subspecies and DPSs of species. 16 U.S. C.§
1532(16). NMFS considers a Pacific salmonid subspecies to be a DPS if it is an ESU and the
term "ESU" is used in place of "DPS" for those species. Policy on Applying the Definition of
Species Under the [ESA] to Pacific Salmon, 56 Fed. Reg. 58, 612 (Nov. 20, 1991).
7 - OPINION AND ORDER

bred smolts into the Sandy River Basin. The operations of the Hatchery are funded in part
through Mitchell Act funds from NMFS. Despite genetic differences, NMFS may include
hatchery-bred and wild fish in the same designated ESU. However, NMFS treats hatchety fish
and wild fish disparately for purposes of the ESA. 70 Fed. Reg. 37, 160; Trout Unlimited v.

Lohn, 559 F.3d 946; (9th Cir. 2009); 50 C.P.R. § 223.203 (noting that§ 9 only applies to listed
fish with an intact adipose fin (hatchery fish generally have their adipose fins clipped before they
are released)).
Plaintiffs allege that the operation of the Sandy Hatche1y causes harm to Lower Columbia
River Chinook, Lower Columbia River coho, Columbia River chum, and Lower Columbia River
steelhead from a number of vectors, including competition from hatchety fish, introduction of
disease, and genetic introgression.
Historically, the Sandy River Basin suppmied sizeable runs of native wild salmonids with
as many as 15,000 coho, 20,000 winter steelhead, 10,000 fall Chinook, and 10,000 spring
Chinook. AR032391. In 2010, there were an estimated 1,330 spring Chinook, 901 coho, and
969 winter steelhead spawners. AR016561. The Sandy Hatchery, which has been in operation
since 1951, is operated with "harvest" rather than "conservation" goals in mind. AR000681.
There is very little evidence to suggest a hatchery can restore a wild population offish and the
Sandy Hatchety is generally not intended to achieve any recovery goals. Rather, it is undisputed
that hatchety operations can pose a host of risks to wild fish. See generally, AR016947-56
(describing factors impacting wild fish populations including interactions between hatchety fish
and wild fish that can result in hatchety fish out-competing wild fish and may alter behavioral

8 - OPINION AND ORDER

patterns, genetic introgression, and the installation and operation of weirs')
In 2008, in connection with litigation in a separate matter, Edward Bowles, the Fish
Division Director for ODFW, has stated that "threats to wild populations caused by stray
hatchery fish are well documented in the scientific literature." Am. Dec!. of Edward Bowles at ~
127, Nat'! Wildlife Fed'n v. !Wv!FS, 839 F. Supp. 2d 1117 (D. Or. 2011)((Case No. 3:01-cv00640-SI) (ECF No. 1633)). "Among the impacts are substantial genetic risks that affect the
fitness, productivity, and genetic diversity ofwi1d populations." !d. (references omitted).
Hatchery programs "also pose ecological risks to wild populations that can further decrease
abundance." !d. Genetic risks increase "when the proportion of the adult population that is
hatchery fish increases over 5%" and ecological risks "have been demonstrated when the
proportion that is hatche1y fish is over 10%." !d. (references omitted). The proportion of
hatche1y-origin spawners (pH OS or "stray rate") is a key metric in determining the effects of a
hatchery's operations on wild populations. "Stray rates as low as one to two percent for a large,
segregated harvest program may pose unacceptable risks to natural populations." AR021266.
However, evidence suggests that higher stray rates, as much as fifteen percent, are acceptable
where a hatchery's broodstock is derived from local natural populations, as it is for all species

2

A weir is a fish trap that is installed and operated to collect broodstock and to prevent
hatche1y fish from spawning naturally. Ideally, hatche1y fish would not travel into the upper
reaches of the Sandy Basin where spawning conditions are favorable, but would instead "home"
to specific stream and river reaches where wild fish are less likely to spawn. Weirs are supposed
to operate in such a way as to limit the number of hatchery fish reaching spawning grounds. Fish
swim into the trap where they are smted by ODFW personnel. Wild fish are released above the
weir, while hatchery fish are typically collected for broodstock or are euthanized. The physical
presence and operation of weirs can cause a host of problems for wild fish including causing a
delay in upstream migration, possibly inducing fish to spawn in less than ideal conditions below
the weir, injuring fish that attempt to escape the weir, and harming fish as they are handled and
released from the weir. AR016954.
9 - OPINION AND ORDER

released by the Sandy Hatchery except summer steelhead. AR016958. However, over time,
hatchery fish will tend to genetically diverge from wild fish unless the broodstock is
supplemented with wild genetics.
The removal of the Matmot Dam in 2007 and 2008 opened the upper Sandy River Basin
to both wild and hatchery fish. Since the removal of the Marmot Dam, the pHOS for Chinook
salmon has been excessively high with 45% in 2008, 52% in 2009, 77% in 2010, and 60% in
2011. AR031745, AR031748. In 2010, ODFW estimated the stray rate for winter steelhead to
be 52%. AR017334. In 2009, the pH OS for coho was 10.4% and in 2010 it was 24.2%.
AR015626.
For nearly all of its existence, the Sandy Hatchery has operated without an approved
HGMP. In May 2011, the ODFW submitted draft HGMPs to NMFS for review and on
September 26,2012, NMFS issued its final EA and made a FONSI regarding the proposed
· HGMPs. AR016661-68. Therefore, NMFS did not prepare an EIS. On September 28, 2012,
NMFS issued its BiOp concluding that the issuance of the HMGPs would not result in jeopardy
to the continued existence of the listed species. AR016905-92. At the same time, NMFS issued
an ITS for operation of the Sandy Hatchery and formally approved the HGMPs. AR016969-74;
AR017007-13.
The HGMPs provide for the release of approximately 1,000,000 smolts into the Sandy
River Basin each year: 300,000 spring Chinook, 500,000 coho, 160,000 winter steelhead, and
75,000 summer steelhead3 • AR016535-50. The HGMPs contain binding implementation terms

3

The summer steelhead run in the Sandy River Basin is made up entirely of non-local
broodstock as summer run steelhead are not indigenous in the Basin. AR016550. Because of
that, the Sandy Hatchery uses genetic stock sourced from outside the Basin for summer
steel head, whereas the broodstock for the remainder of the hatchety smolts at issue in this case
10- OPINION AND ORDER

and the § 4(d) decision approving the HGMPs requires among other things, that the Sandy
Hatchery ensure that the pH OS is less than ten percent annually for spring Chinook, coho, and
winter steelhead, and less than five percent for summer steelhead; that the Hatchery conduct
spawning ground surveys; monitor and report on the effects of fish handling at weirs; and remove
all hatchery fish retuming to the hatchery or caught in a weir unless recycled. ARO 1701 0-11. In
concluding that the HGMPs would not result in jeopardy to the species at issue, NMFS took into
account terms and conditions for implementation by ODFW including increased acclimation
periods for smolts before release that are expected to improve "homing" by retuming spawners,
and monitoring efforts to gauge the impact of the Hatchery's operations. The ITS issued with
NMFS' BiOp concluded that take of listed species was likely to result from: "(1) broodstock
collection; (2) interactions on the spawning grounds; (3) interactions in juvenile rearing areas; (4)
construction, operation, and maintenance of hatchery facilities (e.g. weirs); and (5) [research
monitoring and evaluation]." AR016969. For each of these fmms of take, NMFS set limits for
that take and metrics designed to measure the take. ARO 16969-71.

STANDARDS
Summary judgment is appropriate if the "movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ.
P. 56(a); Ce/otex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
All of plaintiffs' claims at issue in the present motions are governed by the AP A's
"arbitrary and capricious" standard. 5 U.S.C. § 706(2)(A) (2006). Under this standard of review,
the cou1t may set aside an agency action that is "arbitrmy, capricious, an abuse of discretion, or

was, at some point, taken from wild fish in the Basin.
11 - OPINION AND ORDER

othetwise not in accordance with law." 5 U.S. C.§ 706(2)(A).
To detetmine whether an agency decision is arbitrmy and capricious, the court should
"consider whether the decision was based on a consideration of the relevant factors and whether
there has been a clear e11'or of judgment." 1Harsh v. Or. Natural Res. Council, 490 U.S. 360, 378
(1989). After considering the relevant factors, the agency must articulate a satisfactmy
explanation for its action, including a rational connection between the facts found and the
agency's conclusions. Ctr.for Biological Diversity, 538 F.3d at 1193. Review under this
standard is narrow, and the court may not substitute its judgment for the judgment of the agency.

Lands Council v. 1vfcNair, 629 F.3d 1070, 1074 (9th Cir. 2011). For all these claims except
plaintiffs' reinitiation claim, the scope of review is limited to the administrative record before
NMFS at the time the challenged decisions were made. Citizens to Pres. Overton Park v. Volpe,
401 U.S. 402,419 (1971).
Plaintiffs'§ 7(a)(2) claim, that the ITS was abrogated and that NMFS should have
reinitiated formal consultation is evaluated with any admissible evidence and is not limited to the
administrative record. See Wash. Taxies Coal. v. EPA, 413 F.3d 1024, 1034 (9th Cir. 2007)
(holding that the "ESA citizen suit provision creates an express, adequate remedy" rendering the
AP A's scope of review inapplicable to the "substantive provisions of the ESA"); Western

Watersheds Project v. Kraayenbrink, 632 F.3d 472,481 (9th Cir. 2011) (holding that courts
should "review claims brought under the ESA under the citizen-suit provision of the ESA or,
when the citizen-suit provision is unavailable, under the APA"). In accordance with the Ninth
Circuit's ruling in Kraayenbrink, the APA's standard of review will be applied to plaintiffs' claim
and plaintiffs must prove that NMFS' failure to reinitiate consultation was "arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law." 5 U.S. C.§ 706(2)(A)
12 - OPINION AND ORDER

(emphasis added); 632 F. 3d at 481 (holding that "[i]nespective of whether an ESA claim is
brought under the AP A or the citizen-suit provision, the APA's" standard of review applies).
Accordingly, if plaintiffs prove that the ITS was abrogated and that NMFS failed to reinitiate
consultation, the court will evaluate whether that failure was "not in accordance with law." 5
U.S.C. § 706(2)(A).

MOTION TO STRIKE
Plaintiffs advance a Motion to Strike extra-record evidence submitted by state and federal
defendants. In large part, plaintiffs' Motion to Strike rests on the fact that defendants did not seek
approval from the court prior to submitting extra-record evidence. However, federal defendants
opposed plaintiffs initial motion to submit extra-record evidence and requested that this court
limit its review to the administrative record. In light of the fact that the coUlt permitted plaintiffs
to submit extra record evidence, it is only fair that the court consider defendants' materials for the
same purposes that the court is considering plaintiffs' extra-record materials. Accordingly, the
court has considered the extra-record evidence submitted by all pmties in evaluating plaintiffs'
claims brought pursuant to the APA in-so-far as those materials assist the court in dete11nining
whether NMFS considered all relevant factors and in understanding technical terms or complex
subject matter. The co111t is not considering extra-record evidence in evaluating the claims raised
under the AP A for any other purpose as no party requested consideration of such evidence for
any other purpose in a timely manner. The court has considered all relevant evidence in
evaluating plaintiffs' reinitiation claim.

DISCUSSION
Plaintiffs contend that NMFS violated both NEPA and the ESA in approving the HGMPs
and has failed to reinitiate formal consultation in accordance with the ESA and its implementing
13 - OPINION AND ORDER

regulations.

A.

NEPA Claims

Plaintiffs contend that NMFS violated NEP A in approving the HGMPs without preparing
an EIS, by failing to consider a reasonable range of alternatives, and by failing to properly
analyze mitigation.
2.

Requirement to Prepare an EIS

Whether a proposed action requires the preparation of an EIS because it "may have a
significant effect on the enviromnent," depends on the "context and intensity" of the
enviromnental impacts. Ctr. for Biological Diversity, 538 F.3d at 1220. In order to evaluate the
"context and intensity" of a proposed action, federal regulations set forth a number of factors that
should be considered, including: the beneficial and adverse impacts of the action; unique
characteristics of the geographic area such as ecologically critical areas; the degree to which the
effects are likely to be controversial; the degree of uncertainty associated with the impacts or the
degree to which the project has unknown risks; the cumulative effects of the project; and whether
the action "may adversely affect an endangered or threatened species or its habitat that has been
determined to be critical under the [ESA]." 40 C.F.R. § 1508.27. "An action may be 'significant'
if one of these factors is met." Ctr.for Biological Diversity, 538 F.3d at 1220.
An agency deciding not to prepare an EIS "must supply a convincing statement of reasons
to explain why a project's impacts are insignificant. The statement of reasons is crucial to
determining whether the agency took a 'hard look' at the potential enviromnental impact of a
project." Ctr. for Biological Diversity, 53 8 F .3d at 1220 (quotation marks and citation omitted).
The agency must have "adequately considered and elaborated the possible consequences of the
proposed agency action when concluding that it will have no significant impact on the
14- OPINION AND ORDER

environment, and whether its determination that no EIS is required is a reasonable conclusion."

Id. at 1215. If a project raises "substantial questions" as to "whether a project may cause
significant degradation" of the environment, an EIS is required. !d. at 1219 (citation and
quotations omitted).
Federal defendants contend that the context of the HGMPs must be analyzed in light of
the history of hatchery operations in the Sandy River Basin. The first hatchery program in the
Sandy River Basin began in 1896, and for most of the past century there have been hatchery
operations in the basin in one form or another. AROI6253. For the vast majority of this time, the
various hatcheries in the basin used out-of-basin genetic broodstock. AR016263; AR016353;
AR016!69; AR0!835. Prior to 1999, ODFW did not sort and remove hatchety fish from the
wild spawning populations, leading to very high stray rates. AR016365. The pH OS for spring
Chinook was in excess of70% from 1996-2000. AR016270. Federal defendants argue that this
long histmy of straying hatchery origin fish in the Sandy River Basin undermines plaintiffs'
claims regarding the impacts of hatche1y operations and demonstrates that the HGMPs will result
in a continued trend of decreasing effects on listed fish. This may or may not be the case
(another interpretation would be that because of historical hmm caused by hatcheries, it is all the
more important to protect wild fish now). More impmiantly, the FONSI does not discuss this
context or, in any way, analyze the impacts of the cunent action in that context. While the
FONSI, states that the HGMPs are "designed to minimize known impacts on ESA-listed fish" the
FONSI does not evaluate the impacts ofthe HGMPs in the historical context of the basin. While
this comi is prepared to accept a "decision of less than ideal clarity, if the agency's path may be
reasonably discerned" the comi is unable to defer to the agency's reasoning without some analysis

15- OPINION AND ORDER

of this historical context. 1Vfotor Vehicle i\Iji·s. Ass'n. v. State Farm }vfut. Auto. Ins. Co., 463 U.S.
29,43 (1983) (quoting Bowman Transp. Inc. v. Arkansas-Best Freight System, 419 U.S. 281, 285
(1974)).
Additionally, simply because a proposed action is expected to decrease the negative
impacts in comparison to a much worse historical practice does not mean that the action will not
have a significant negative impact itself, only that it will have a less harmful impact than prior
actions. Where a project, or its mitigation, is expected to improve ecological conditions, it may
be acceptable to produce only an EA. Bering Strait Citizens for Responsible Res. Dev. v. U.S.
Army Corps ofEngineers, 524 F.3d 938, 957 (9th Cir. 2008) ("[w]e cannot avoid perceiving that
the project in its required mitigation favorably affects parts of the Nome area that suffered
environmental damage from previously unconstrained resource development"); Umpqua
Watersheds v. United States; 725 F. Supp. 2d 1232, 1240-41 (D. Or. 2010) (upholding FONSI
where agency detetmined that the project "would improve resource conditions rather than
degrade resources"). However, an agency may not decline to produce an EIS on the basis that the
negative impacts of the proposed action are not as bad as prior unregulated actions, the question
is whether the action at issue will have significant impacts.
Even ifNMFS had offered a cogent analysis of the context for the HGMPs, it still appears
that an EIS should have been produced in accordance with the intensity factors set forth in 40
C.F.R. § 1508.27. The parties disagree regarding whether ODFW's designation of the Sandy
River Basin above Cedar Creek as a "wild fish sanctuary" makes it an "ecologically critical area"

16- OPINION AND ORDER

and therefore "unique" in accordance with 40 C.F.R. § 1508.27(b)(3).4 Although the exact
definition of a "wild fish sanctuary" is not given, it appears the ODFW intended the designation
to describe areas where straying of hatchery fish is meant to be minimal. AR017260-61.
Regardless of what the exact parameters are for a "wild fish sanctuary" designation, it is clear
that the Sandy River Basin is of particular importance to the recovery of the four listed species
and is an ecologically critical area. See, e.g., AR037590, 037700, 377736 (detenninations by
Hatche1y Scientific Review Group that wild fish in Sandy River are "primmy populations"
important to the species as a whole); AR019551-70 (discussing relative importance of the Sandy
River basin populations to the listed species). However, such a finding does not necessitate the
production of an EIS alone. Presidio Golf Club v. Nat. Park Serv., !55 F.3d 1153, 1162 (9th Cir.
1998) (EIS is not required ifEA adequately addresses unique characteristics of the project area).
Here, the EA addresses the unique characteristics of the Upper Sandy River Basin to a degree
that the court cannot conclude that the agency overlooked the unique characteristics of the project
area. However, this is not the only intensity factor present in this case.
Of particular importance is the issue of uncertainty, a factor that is inadequately addressed
in the EA. 5 There are repeated references in the administrative record to the uncertainty attendant
to the HGMPs. See, e.g., AR016538 ("[I)t is unknown if the operation of the weir/traps will be
successful in removing enough hatchery spring Chinook salmon adults to meet the I 0 percent

4

The Sandy, Salmon, and Zigzag Rivers are also designated as a Wild and Scenic Rivers.
http://www.rivers.gov/rivers/salmon-or.php; http://www.rivers.gov/rivers/sandy.php:
http://www.rivers.gov/rivers/zigzag.php.
5

In finding that the effects of the HGMPs are "uncertain," the court is not relying on any
extra-record evidence. The comt is declining to find that the HGMPs are "highly controversial"
in light of the fact that the administrative record does not supp01t such a finding and the use of
extra-record evidence to make such a finding would be inappropriate.

17 - OPINION AND ORDER

goal"); AR016615 (unclear if acclimation to Bull Run River will be successful for a number of
years). However, in making the FONSI, NMFS very nearly ignores this uncertainty and then
treats the success of the programs as a given, an issue called into doubt by the ODFW's miserable
track record of containing stray rates. 6 The "purpose of an EIS is to obviate the need for
speculation." Sierra Club v. US. ForestServ., 843 F.2d 1190,1195 (9th Cir. 1988). Lastly, and
most impmiantly, this uncetiainty relates to adverse affects on four listed species (another
intensity factor). NMFS acted arbitrarily in concluding that the HMGPs would have no
significant impact while failing to reduce the uncetiainty of the success of the HGMPs through
the production of an EIS. 7
2.

Reasonable Range of Alternatives

NEP A requires NMFS to "study, develop, and describe" a reasonable range of
altematives to the proposed project. 42 U.S.C. § 4332(2)(E); 40 C.F.R. § 1502.14(d). This
consideration must include consideration of a "no action" altemative. In reviewing a challenge
under NEP A the court must detetmine whether the agency's "selection and discussion of

6

Although stray rates for spring Chinook have been higher than those for the other
species at issue, the record reflects that stray rates for the remaining species were high enough in
the years preceding approval of the HGMPs that attainment of stray rates was uncertain for those
species as well. AR016928.
7

The court declines to adopt NMFS' argument that any failure on its pati to propedy
explain its decisions results in a violation of the APA rather than NEPA or the ESA. Florida
Power & Light Co. v. Lorion, 470 U.S. 729,744 (1985). The APA merely provides the standard
of review in this case by which the court evaluates plaintiffs' claims brought pursuant to NEPA
and the ESA. Plaintiffs have not alleged any substantive violations of the AP A. It is a hallmark
of administrative law that "a reviewing court, in dealing with a detetmination or judgment which
an administrative agency alone is authorized to make, must judge the propriety of such action
solely by the grounds invoked by the agency." S.E.C. v. Chene1y Corp., 332 U.S. 194, 196
(1947).
18- OPINION AND ORDER

alternatives fosters infmmed decision-making and informed public patiicipation." Westlands

Water Dist. v. US. Dep't of Interior, 376 FJd 853, 872 (9th Cir. 2004) (citation omitted).
"Although an agency's obligation to consider alternatives under an EA is a lesser one than under
an EIS, ... NEPA requires that alternatives ... be given full and meaningful consideration,
whether the agency prepares an EA or an EIS." Ctr. for Biological Diversity, 538 F.3d at 1217
(quotation and citation omitted).
Here, NMFS considered both the "preferred action" altemative and a "no action"
alternative as well as raising, but not analyzing, five additional alternatives. AR016534-35,
AR016552-53. NMFS dismissed the five alternatives not analyzed because they were "less likely
to provide the intended benefit of providing fishing oppmiunities." AR016552. One of these
dismissed alternatives was an alternative with the release of fewer fish from the hatchery. This
alternative was summarily dismissed because "any incrementally different level of production
between no production and the proposed levels would not provide a large enough range to allow
meaningful evaluation." AR016553. Given the obvious difference between the release of
approximately 1,000,000 smolts and zero smolts, it is not clear why it would not be meaningful
to analyze a number somewhere in the middle or why such a number would preclude the
provision of fishing opportunities. Where a feasible alternative would meet the project's purpose
and need, it should be considered. Western Watersheds Project v. Abbey, 719 F.3d 1035, 1052
(9th Cir. 2013).

N~lFS

3.

erred in failing to consider a reasonable range of alternatives.

Mitigation

Plaintiffs contend that mitigation will not avoid significant effects, and that production of
an EIS was required. In "evaluating the sufficiency of mitigation measures, we consider whether

19- OPINION AND ORDER

they constitute an adequate buffer against the negative impacts that may result from the
authorized activity. Specifically, we examine whether the mitigation measures will render such
impacts so minor as to not warrant an EIS." National Parks & Conservation Ass'n v. Babbitt,
241 F.3d 722, 734 (9th Cir. 2001). As discussed above and below, there was significant
uncertainty regarding the efficacy of the HGMPs in achieving their goals and much of this
uncertainty is tied to the mitigation measures. AR031747 (ODFW scientist noting that
effectiveness of acclimation and alternate release site would not be known for four to five years).
Because the use of weirs and acclimation was uncertain to reduce stray rates below targets and
because excessive stray rates are hmmful to these tlu·eatened fish species, it was arbitrary and
capricious to conclude that the HGMPs would have no significant impact without first producing
an EIS. 8

B.

ESA Claims

Plaintiffs contend that NMFS' BiOp violates § 7 of the ESA because NMFS failed to
consider important aspects of the problem, because NMFS inappropriately relied on mitigation
that is not reasonably certain to occur, because portions of the ITS are unlawful, because the
§4(d) decision failed to account for recovery of the threatened species, and because NMFS failed
to reinitiate fmmal consultation in a timely manner.

1.

Important aspects of the problem

In dete1mining whether an agency decision is arbitrary and capricious, courts "consider

8

The court is not concluding, at this juncture, that NMFS must produce an EIS when
evaluating the newly submitted HGMPs. Those HGMPs are likely to be different from the
HGMPs at issue in this case, and NMFS has obtained additional infmmation regarding the
impacts of the cmTent HGMPs since the inception of this lawsuit.
20 - OPINION AND ORDER

whether the decision was based on a consideration of the relevant factors and whether there has
been a clear enor of judgment." 1Vfarsh, 490 U.S. at 378. A decision is arbitrary and capricious
if the agency:
[H]as relied on factors which Congress has not intended it to consider, entirely
failed to consider an important aspect of the problem, offered an explanation for
its decision that runs counter to the evidence before the agency, or is so
implausible that it could not be ascribed to a difference in view or the product of
agency expertise.

O'Keeffe's, Inc. v. U.S. Consumer Product Safety Comm., 92 F.3d 940, 942 (9th Cir. 1996)
(quoting Motor Vehicle lv!fi·s. Ass'n., 463 U.S. at 43).
In the context of the ESA, the "problem" is whether a proposed project will cause
jeopardy to a listed species and "any effect that is likely to adversely affect the species is plainly
an important aspect of this problem." S. Yuba River Citizens League v. Nlv!FS, 723 F. Supp. 2d
1247, 1270 (E.D. Cal. 2010) (citing 50 C.P.R.§§ 402.13(a), 402.14(b)(l)).
Plaintiffs contend that the BiOp fails to consider significant data regarding spring
Chinook and winter steelhead, fails to consider whether the Bull Run acclimation facility and the
weirs will limit stray rates, and that NMFS's endorsement of a ten percent stray rate for spring
Chinook, winter steelhead, and coho is arbitrmy and capricious.
a.

Chinook and Winter Steelhead Data

Plaintifis contend that the BiOp does not take into account data regarding Chinook and
winter steelhead that is impotiant to a consideration of the environmental baseline for this
project. In particular, plaintiffs fault NMFS for failing to analyze the harm that the Hatchery's
operations have already caused, including declining abundance and high stray rates in recent

21- OPINION AND ORDER

years, data regarding summer steelhead spawning, and data from the Bull Run River.
Much of the evidence offered in support of plaintiffs' arguments on these subjects is
extra-record evidence that was unavailable to federal defendants prior to the issuance of the
Bi Op, such as data regarding winter steelhead stray rates and abundance in years immediately
preceding the agency decision. Unlike in NEPA, the ESA does not require NMFS to develop
information, only to consider the best evidence available. 16 U.S.C. § 1536(a)(2); 50 C.F.R. §
402.14(a); Connor v. Bwford, 848 F.2d 1441, 1454 (9th Cir. 1988) (an agency "cannot ignore
available biological information"). As much of the evidence cited by plaintiffs was not available
to NMFS, the agency cannot be faulted for having ignored it.
With respect to summer steelhead, plaintiffs contend that NMFS ignored overlap between
out-of-basin hatchery origin summer steelhead and wild winter steelhead on the spawning
grounds and during rearing. Because the summer steelhead are not native to the Sandy River
Basin, plaintiffs contend that any spawning between summer steelhead and winter steelhead is
pmiicularly problematic. The BiOp cites a study in the Clackamas River Basin that concluded
that "interactions between hatchery and natural-origin steelhead ... have resulted in reduced
productivity for the winter steelhead population." AR016936. The BiOp also acknowledges that
there is unce1iainty regarding the level of interaction between hatchery steelhead and wild
steelhead. !d. The extra-record evidence cited by plaintiffs does not demonstrate that hatchery
summer steelhead and wild steelhead are in fact spawning together or that there are other
unacknowledged impacts on wild winter steelhead caused by summer steelhead in the Sandy
River Basin. On this record, the couti cannot conclude that this is an impmiant problem that
NMFS ignored and the cou1i must defer to the agency's expertise in this matter. Ctr. for

22 - OPINION AND ORDER

Biological Diversity, 588 F.3d at 712.
However, the BiOp's analysis of historical stray rates, and the problems posed by stray
rates was arbitrmy and capricous. The BiOp contains a table outlining the number of wild and
hatchery spawners and NMFS cannot be said to have ignored the problem entirely. ARO 16928
(providing numerical estimates of total vs. wild Chinook, coho, and steelhead from 1992-2011);
AR 016835. However, the BiOp minimizes the Sandy Hatchery's terrible track record with
respect to stray rates and makes little effort to address how or why NMFS expected a dramatic
reduction in stray rates. The BiOp states that "[g]ene-flow and competition on the spawning
grounds is not a threat because the HGMPs impose strict limits on pH OS." AR016955;
AR016955 ("Interactions on the spawning grounds are not a threat because these programs must
comply with strict standards for limiting [pHOS]"). While it is correct that the HGMPs impose
limits on straying, it is entirely unclear why NMFS expected that the stray rates would actually be
attained, especially in light of uncettainty regarding the efficacy of mitigation measures.

Chene1y, 332 U.S. 194, 196 (1947) ("If the administrative action is to be tested by the basis upon
which it purp01is to rest, that basis must be set forth with such clarity as to be understandable").
Accordingly, the cou11 must conclude that NMFS ignored this important problem.
b.

Acclimation and Weirs

Plaintiffs contend that the BiOp fails to consider whether moving the acclimation facility
from Cedar Creek to the Bull Run River and using weirs will reduce stray rates and prevent harm
to wild fish.
The BiOp discusses weirs and acknowledges that there is uncettainty regarding their
operation. See, e.g., AR016953-54 (discussing adverse effects and best management practices);
23 - OPINION AND ORDER

ARO 16961 (discussing adverse effects caused by weirs, uncertainty, and learning curve for their
use); AR01694 (discussing benefits of weirs). Although there is uncertainty associated with weir
use, Nlv!FS cannot be said to have ignored that uncertainty or the potential downsides to weir use
entirely. Similarly, there is some discussion in the BiOp regarding why Bull Run River
acclimation is expected to be more effective than acclimation to Cedar Creek. AR016890-91
(noting that flows from the Bull Run River are expected to provide enough volume and cooler
temperatures that will attract spring Chinook); but see, AR031747 (ODFW scientist noting that
effectiveness of acclimation· and alternate release site would not be known for four to five years).
While the BiOp discusses weirs and acclimation, it does not provide a reasoned explanation for
why the use of weirs and the move to the Bull Run River for acclimation would yield the needed
improvements in stray rates. Given the stray rates in recent years, the fact that acclimation and
weirs are key to reducing sh·ay rates, and the fact that the success of weirs and acclimation at the
Bull Run River are uncertain, it is unclear why Nlv!FS believed ODFW could bring about the
needed changes. While Nlv!FS did not ignore weirs and acclimation, it ignored the challenges
facing ODFW in reducing stray rates. This is clearly an impmiant part of the problem and the
success of those strategies cannot be taken as a given. Burlington Truck Lines v. United States,
371 U.S. 156, 158 (1962) (an agency must consider "relevant factors" and atiiculate "a rational
connection between the facts found and the choices made").
c.

Ten Percent Stray Rate

Plaintiffs contend that Nlv!FS' approval of a ten percent stray rate for spring Chinook,
winter steelhead, and coho was arbitrary and capricious. In large part, this dispute centers on
whether the hatche1y programs are isolated or integrated and on whether the hatche1y fish are

24 - OPINION AND ORDER

genetically similar to or divergent from wild fish. There is sufficient evidence in the record, and
cited in the BiOp, to suppmi NMFS' determination that a ten percent stray rate is protective of
the species where a hatchery uses local origin broodstock that is not genetically divergent from
the wild population. AR01696548. Additionally, the BiOp, which relies on the use of "local
fish" for brookstock defines that term to mean "fish that are no more than moderately divergent
from the local natural population." AR016947. Unfmtunately, there is no analysis in the BiOp
regarding whether the broodstock utilized in the HGMPs are "no more than moderately divergent
from the local natural population" or defining what "moderately divergent" means. Without a
reasoned determination that the Sandy Hatchery's fish are "local fish" as defined in the BiOp, the
comt cannot conclude that the use of a ten percent stray rate was a rational decision.
2.

Mitigation measures

NMFS may rely on mitigation or conservation measures in issuing a no jeopardy BiOp.
However, those measures must be "reasonably specific, certain to occur, and capable of
implementation; they must be subject to deadlines or otherwise-enforceable obligations; and
most impotiant, they must address the threats to the species in a way that satisfies the jeopardy
and adverse modification standards." Ctr. for Biol. Diversity v. Rumsfeld, 198 F. Supp. 2d 1139,
1152 (D. Ariz. 2002) (citing Sierra Club v. 1\Iarsh, 816 F.2d 1376, 1379-80 (9th Cir. 1987)); see
also Nat'l Wildlife Fed'n v. Niv!FS, 524 F.3d 917,936 (9th Cir. 2008) ("even a sincere general
commitment to" implement conservation measures is insufficient "absent specific and binding
plans").
In this matter, the mitigation measures can be roughly divided into two categories: those
that are cetiain to be implemented such as weirs and acclimatization periods and those that may

25 - OPINION AND ORDER

be implemented if the goals set forth in the HGMPs are not met. This latter category of
mitigation measures can be refened to as "adaptive management." Plaintiffs contend that NMFS
en·ed in relying on both varieties of mitigation.
As discussed at length above, the cou1i finds that NMFS failed to provide a reasoned
analysis of why weirs and acclimation would mitigate the problems caused by stray rates.
Without reasonable ce1iainty that these mitigation measures would reduce stray rates, it was
arbitrary for NMFS to rely upon them. Natural Res. Def Council v. Kempthorne, 506 F. Supp.
2d 322, 350-57 (E.D. Cal2007).
With respect to the "adaptive management" approach taken by NMFS in the BiOp,
plaintiffs contend that specific management responses should be tied to specific triggering
criteria. Greater Yellowstone Coal., Inc. v. Servheen, 665 F.3d 1015, 1029 (9th Cir. 2011).
However, the court finds that NMFS' decision, when viewed through the context of Limit 5,
takes a reasonable approach to adaptive management. See, 50 C.F.R. § 223.203(b)(5)(vi)
(providing that NMFS will evaluate effectiveness, identify deficiencies, and possibly withdraw
approval ofHGMPs after providing notice and comment). With annual monitoring and
reporting, the comi cannot conclude that the adaptive management approach was unreasonable as
the ESA pem1its some flexibility in planning for an uncertain future. Center for Biological

Diversity v. Kempthorne, 588 F.3d 701,712 (9th Cir. 2009) (agency predictions are entitled to
"great deference" even where some unce1iainty exists); Arizona Cattle Growers' Ass'n v. Salazar,
606 F.3d 1160, 1164 (9th Cir. 2010).
3.

Incidental Take Statement

Section 9 of the ESAprohibits the "take" of listed species. 16 U.S. C.§ 1538(a)(l)(B).
26 - OPINION AND ORDER

The term "take" means "to harass, hatm, pursue, hunt, shoot, wound, kill, trap, capture, or collect,
or to attempt to engage in any such conduct." !d. § 1532(19). Where, as here, NMFS issues a
"nojeopardy" opinion for a proposed action that nevetiheless may result in a "take" under the
ESA, NMFS must include an ITS specifying the amount or extent of anticipated take, reasonable
and prudent measures to minimize the impact of the take, and mandatmy terms and conditions to
implement the reasonable and prudent measures. 50 C.F.R. § 402.14(i). The ITS provides an
exemption from liability for "take" under the ESA. 16 U.S. C. § 1536(o)(7). "Incidental take
statements set forth a 'trigger' that, when reached, results in an unacceptable level of incidental
take, invalidating the safe harbor provision [of the ESA], and requiring the parties tore-initiate
consultation." Ariz. Cattle Growers' Ass'n v. FWS, 273 F.3d 1229, 1249 (9th Cir. 2001); 50
C.F.R. § 402.16(a).
Although it is preferable to quantify take with a number of members of a listed species,
NMFS may use a su11'ogate if it is not practicable to utilize such a number. Ariz. Cattle Growers,
273 F.3d at 1249-50; Wild Fish Conservancy v. Salazar, 628 F.3d 513, 531(9th Cir. 2010); 50
C.F.R. § 402.16(a). Where NMFS uses a non-numerical surrogate, it must "articulate a rational
connection between the smTogate and the taking of the species." Wild Fish Conservancy, 628
F.3d at 531. The sunogate must "contain measurable guidelines to determine when incidental
take would be exceeded," and "must not be so general that the applicant or the action agency
cannot gauge its level of compliance." Or. Natural Res. Council ("ONRC'? v. Allen, 476 F. 3d
1031, 1038-39 (9th Cir. 2007).
NMFS found five fmms of take were likely to occur from the proposed action and created
surrogates for each of those five fmms of take. Plaintiffs take issue with two of the su11'ogates:

27 - OPINION AND ORDER

the five and ten percent stray rates and the twenty percent change in spawning distribution caused
by operation of the weirs.
First, as discussed above, plaintiffs contend that the ten percent stray rate is unlawful.
Without a finding that the hatchety fish are "no more than moderately divergent," this court
agrees. Second, plaintiffs contend that the use of a three-year moving mean beginning in 2013 to
calculate stray rates is arbitrmy and capricious. AR016974. Though counsel for NMFS has
assured the court that NMFS would take immediate action if stray rates were measured in year
one at a rate that precluded, or called into question, attainment of the three-year average, the ITS
does not appear to require such action. More importantly, the use of a three-year average did not
begin until2013, making this ITS trigger for the first year of the HGMPs "coextensive with the
project's own scope." ONRC, 476 F.3d at 1039. Accordingly, the court finds that NMFS' use of
this stray rate sunogate is unlawful.
To account for take caused by changes in spawning distribution resulting from the use of
weirs, the ITS uses a trigger of "any change greater than 20 percent in spawning distribution
above and below the weirs and in pre-spawning mortality from what was measured during
previous spawning ground survey prior to the installation and operation of the weirs in 2011."
AR016971. The use of a twenty percent trigger is entirely unexplained. There is precisely
nothing in the record that explains why twenty percent, rather than ten or thirty or f01iy percent,
is an appropriate target. Without some justification for the use of twenty percent as the target,
the comi must find that NMFS' decision was arbitrmy as the court "cannot defer to a void." Or.
Natural Desert Ass'n v. Bureau ofLand }vfgmt., 531 F.3d 1114, 1142 (9th Cir. 2008).

28 - OPINION AND ORDER

4.

Nlv!FS Section 4(d) Decision Approving HGMPs

Plaintiffs contend that Nlv!FS' approval of the HGMPs violates the 4(d) Rule by failing to
consider the impacts of the HGMPs on the recovery of the species at issue. Plaintiffs seek to
impose an additional requirement on NMFS that is not found in the statute or regulations. Rule
4(d) provides that "[w]henever any species is listed as a threatened species ... the Secretary shall
issue such regulations as he deems necessmy and advisable to provide for the conservation of
such species." 16 U.S. C.§ 1533(d). NMFS promulgated Limit 5 as part of the 4(d) Rule. Limit
5 creates an exemption from § 9's take prohibition for otherwise unlawful take of anadromous
fish caused by a hatchery's artificial propagation program so long as the hatche1y is operated
pursuant to an approved HGMP. 50 C.F.R. § 223.203(b)(5). Plaintiffs do not contend that the
HGMPs do not meet the regulatmy criteria of Limit 5, but that NMFS' approval of the HGMPs
violates the statute because NMFS failed to consider recove1y. The statute requires NMFS to
provide for the conservation of species, which includes recove1y, when promulgating regulations
in accordance with Rule 4(d). NMFS did that when developing Limit 5. The HGMPs in tum
comply with the strictures of Limit 5. Nothing more is required and this court is not free to
impose additional requirements. Lands Council, 537 F.3d at 993-94.
5.

Reinitiation of Consultation

Plaintiffs contend that NMFS ened in failing to reinitiate fmmal consultation in
accordance with§ 7(a)(2) in response to violations of the ITS. At this time, NMFS has
reinitiated consultation, but plaintiffs contend that the reinitiation was untimely and request
declaratmy relief. The court concludes that this claim is moot as the court cannot provide
plaintiffs with any meaningful relief. Ctr. for Biological Diversity v. Lohn, 511 F.3d 960, 964

29 - OPINION AND ORDER

(9th Cir. 2007).

CONCLUSION
For the reasons provided, plaintiffs' Motion to Strike [215] is DENIED, plaintiffs' Motion
for Partial Summmy Judgment [162] is GRANTED IN PART and DENIED IN PART, and
federal defendants' Cross Motion for Partial Summmy Judgment [179] is GRANTED IN PART
and DENIED IN PART. Plaintiffs are awarded summary judgment on the Fourth and Fifth
Claims for Relief in the Second Amended Complaint, federal defendants are awm·ded summmy
judgment on the Third Claim, and plaintiffs' Sixth Claim is denied as moot. The patiies are
ordered to confer regarding remedies. If the pmiies are unable to reach agreement, the parties
must propose a briefing and discovery schedule that will allow this court to resolve any remedies
disputes prior to the 2014 release ofhatche1y smolts. A joint status rep01i or briefing schedule is
due Janumy 22, 2014.
IT IS SO ORDERED.
DATED this Wday of Janumy, 2014.

~L/Iu~
Ancer L. Haggerty

United States District Judge

30 - OPINION AND ORDER