Native Fish Society v. National Marine Fisheries Service et al
Filing
284
Opinion and Order by Judge Ancer L. Haggerty Signed on 3/14/2014. Plaintiffs' Motion for Remedy and Injunctive Relief 247 is GRANTED IN PART and DENIED IN PART. (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 BLANK, Acting
Secretary of the Department of Commerce;
WILLIAl\t! 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
declaratoty and injunctive relief against the National Marine Fisheries Service (NMFS); William
Stelle, Regional Administrator, NMFS; Rebecca Blank, Acting Secretmy of the Depatiment of
Commerce (collectively "federal defendants" or "NMFS"); the Oregon Department of Fish and
1 - OPINION AND ORDER
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 Enviromnental 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, funding, and managing the Sandy Hatche1y. On January 16, 2014, this
court entered an Opinion and Order [241] resolving plaintiffs' and federal defendants' crossmotions for summmy judgment, granting in part and denying in part each party's motion. In so
ruling, the court concluded that NMFS had violated NEP A and the ESA in approving Hatchery
Genetic Management Plans (HGMPs) for the Sandy Hatche1y. Plaintiffs now advance a Motion
for Remedy and Injunctive Relief[247] seeking vacatur of the decisions approving the HGMPs.
Additionally, plaintiffs seek an injunction preventing the release of smolts from the Sandy
Hatchety on the basis that state defendants' operation, and federal defendants' funding, of the
Sandy Hatchery causes "take" of threatened fish species in violation of§ 9 of the ESA. 16
U.S.C. § 1538(a)(1)(B). For the following reasons, plaintiffs' Motion for Remedy and Injunctive
Relief is granted in part and denied in pmi.
BACKGROUND
The parties and the court are more than familiar with the legal and factual background to
this matter. It has been detailed in the paliies briefing and in this court's prior opinions [120 and
241]. That history will not be repeated and only limited and newly developed background
information will be relayed here.
In granting pmiial summmy judgment to plaintiffs in this case, the comi concluded that
NMFS violated NEP A by failing to produce an enviromnental impact statement (EIS) and
2 - OPINION AND ORDER
violated the ESA by ignoring important aspects of the problems posed by the HGMPs, by
improperly relying on unce1tain mitigation measures, and by failing to create a lawful incidental
take statement (ITS). By and large, NMFS' errors stemmed from its failure to adequately explain
the basis for its decisions and expectations. In pmticular, NMFS failed to explain why certain
'
mitigation measures (use of weirs and acclimation) were expected to result in dramatic decreases
to the Sandy Hatchery's stray rates, why the use of a twenty percent change in spawning
distribution trigger was an appropriate proxy for "take" in the ITS, and whether the hatchery fish
released by the Sandy Hatche1y are no more than moderately divergent from wild fish.
In the years preceding NMFS' approval of the HGMPs, stray rates at the Sandy Hatche1y
were excessively high. The removal of the Mmmot Dam in 2007 and 2008 opened the upper
Sandy River Basin to both wild and hatche1y fish. The percentage of hatchery origin spawners
(pH OS) for spring Chinook was 45% in 2008, 52% in 2009, 77% in 2010, and 60% in 2011.
AR031745, AR031748. The pHOS for winter steelhead was 28.6% in 2010. Lewis Dec!. [92]
~
55. In 2009, the pHOS for coho was 10.4% and in 2010 it was 24.2%. AR015626. Since
implementation of the HGMPs, those numbers have, by and large, been reduced dramatically. In
2012, the pHOS for coho was 2.8%. Fifth Turner Dec!. [267]
at~
spring Chinook was 9.3%, and for winter steelhead it was 6%. !d.
12. In 2013, the pHOS for
at~
7; Ex. 1 to Weston Dec!.
[239-1] at 25. 1 The notable exception to this downward trend is the preliminmy estimate for
2013 coho pHOS. Fourth Lewis Dec!. [280]
at~
7. Because information concerning reduced
stray rates was post-decisional, it was not considered by the comt for purposes of summmy
Plaintiffs take issue with these numbers. Fifth Frissell Dec!. [249] at ~~ 2-20.
However, ODFW utilizes widely accepted methodologies for calculating these figures and the
court finds no basis to second-guess the agency's scientists.
1
3 - OPINION AND ORDER
judgment. 2
After this court issued its Opinion and Order resolving plaintiffs' first Motion for
Preliminary Injunction [58], but prior to resolution of the pmiies' cross motions for summary
judgment, ODFW submitted new HGMPs to NMFS for review. These 2013 HGMPs are still
under consideration at this time and will not be acted upon before the 2014 scheduled release of
smolts. State defendants propose releasing the same number of smolts this year as were released
last year following briefing on plaintiffs' first Motion for Preliminary Injunction. These releases
are substantially reduced from historic release levels.
VACATUR AND REMAND
Plaintiffs seek an order from this comi vacating NMFS' § 4(d) decisions approving the
HGMPs and requiring NMFS to prepare an EIS when reviewing the new HGMPs submitted to
NMFS last year.
Standards for Vacatur and Remand
Under the APA, an agency action held to be unlawful is ordinarily set aside and remanded
to the agency. 5 U.S.C. § 706(2); Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)
("the proper course, except in rare circumstances, is to remand to the agency for additional
investigation or explanation"). However, a comi "is not required to set aside eve1y unlawful
agency action." National Wildlife Federation v. Espy, 45 F.3d 1337, 1343 (9th Cir. 1995).
Whether a court should grant injunctive relief under the APA is "controlled by principles of
2
Plaintiffs also raise numerous factual issues pe1iaining to summer steelhead spawning.
As plaintiffs did not prevail on these issues at summary judgment, it would be inappropriate to
rely on that data here for purposes of vacatur. Additionally, that data is not relevant under this
court's analysis of plaintiffs' § 9 claims. Accordingly, the cou1i does not recite that data here.
The cou1i is confident that plaintiffs will highlight these facts in their comments to NMFS
concerning the 2013 HGMPs.
4 - OPINION AND ORDER
equity." !d. (citing Westlands Water Dis/. v. Firebaugh Canal, 10 F.3d 667,673 (9th Cir.1993);
Sierra Pacific Industries v. Lyng, 866 F.2d 1099, 1111 (9th Cir.1989)). "When equity demands,
[a flawed action] can be left in place while the agency follows the necessmy procedures to correct
its action." Cal. Cmtys. Against Toxics v. EPA, 688 F.3d 989,992 (9th Cir. 2012) (quoting Idaho
Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1405 (9th Cir.1995) (internal quotation marks
ommitted)); Nat'/ Wildlife Fed'n v. Nat'/ lvfarine Fisheries Serv., 839 F. Supp. 2d 1117,
1128 (D. Or. 2011) ("District courts have 'broad latitude in fashioning equitable relief when
necessmy to remedy an established wrong,' and sometimes equity requires an invalid agency
· action to remain in place while the agency revisits the action"). "Whether agency action should
be vacated depends on how serious the agency's enors are 'and the disruptive consequences of an
interim change that may itself be changed."' !d. (quoting Allied-Signa/, Inc. v. US. Nuclear
Regulatory Comm'n, 988 F.2d 146, 150-51 (D.C. Cir.1993)).
Discussion
As discussed above, although vacatur is presumptively appropriate, this couti has
equitable discretion to tailor relief in response to an agency's enors. In this matter, plaintiffs
request that the court vacate NMFS' § 4(d) decisions approving the HGMPs. In evaluating
whether vacatur is appropriate, the court first determines how serious the agency's enors were,
and second, what the disruptive consequences of vacatur would be. In weighing these issues, the
couti notes that in cases involving listed species, the scales are tipped in favor of the species
through the ESA's "institutionalized caution" mandate. Sierra Club v. }vfarsh, 816 F.2d 1376,
1383 (9th Cir. 1987) (citation and quotation omitted).
First, NMFS' primary enors in approving the HGMPs stemmed from its failure to explain
why the use of weirs and acclimation were expected to result in greatly improved stray rates.
5 - OPINION AND ORDER
While NMFS failed to adequately explain its decisions, it appears that the agency's predictions
largely proved con·ect. In light of the dramatic reductions in stray rates realized by ODFW since
implementation of the HGMPs, it appears that NMFS' failures were largely failures to explain,
rather than failures to apprehend, the nature of the obstacles created by operation of the Sandy
Hatchety. These enors can be conected thmugh additional explanation and were more
procedural, than substantive, in nature. As such, the co\lli finds NMFS' ermrs to have been
relatively minor. The primary exception is the agency's approval of a ten percent stray rate based
on the genetic similarity ofhatchety and wild fish. Although it is possible that the fish are no
more than moderately genetically divergent, the court has not seen a convincing explanation for
that premise. This ermr is patiicularly troubling with respect to coho, as the Hatchety's coho
broodstock has not incorporated wild broodstock since 1996. The 2013 HGMP for coho has
reduced the target stray rate to five percent to account for the genetic divergence. The
preliminmy data tentatively suggests that the 20 13 coho stray rate may vety well be in excess of
ten percent. As such the court cannot find NMFS' enors to be minor as they pertain to the coho
HGMP.
Second, the court has serious concerns that vacatur could result in disruptive
consequences. ImpOtiantly, it is possible that some of these consequences would accrue to the
detriment of listed species. As discussed in this court's prior Opinion and Order [120], the
HGMPs approved by NMFS provide ODFW with an absolute defense to § 9 claims so long as
the HGMPs are in effect and ODFW is in compliance with their terms. 50 C.P.R.§ 223.203(c)
(a person "shall have a defense where the person can demonstrate that the limit is applicable and
was in force, and that the person fully complied with the limit at the time of the alleged violation
... this defense will be an absolute defense to liability under[§ 9]"). Were this court to vacate
6 - OPINION AND ORDER
NMFS' approval of the HGMPs and the Biological Opinion, ODFW would no longer be under an
obligation to operate weirs or conduct monitoring to protect wild fish and reduce stray rates for
retuming fish. While, as discussed below, plaintiffs request that this couti require ODFW to
implement mitigation measures even in the absence of approved HGMPs or hatchery releases, it
is not at all clear that the court would be so-empowered. Without the protections afforded by
HGMPs it would be more than reasonable for ODFW to cease all hatchery operations in order to
avoid the severe penalties associated with § 9 liability. It is unclear then, how this court could
order a state agency that has not been found to have previously violated the ESA and that has
ceased all hatchery operations and is no longer at risk of violating the ESA, to nonetheless cany
out certain hatchety operations that might subject it to liability. Vacatur "would remove
beneficial measures which even plaintiffs acknowledge provide some protection for the species."
Nat'/ Wildlife Fed'n, 839 F. Supp. 2d at 1129. "Despite the APA's requirement that an invalid
agency action be 'set aside,' equity can authorize the district comi to keep an invalid biological
opinion in place during any remand if it provides protection for listed species within the meaning
of the ESA." Id. at 1128 (citations omitted).
In addition to the fact that vacatur would potentially cause serious harm to the species in
the near term, vacatur would also be disruptive to the future operation of the Sandy Hatchety by
potentially eliminating the possibility of collecting future broodstock, and to the sh01t-te1m
interests of amici in a sp01i and harvest fishery. 3 In light of the disruptive consequences of
vacatur, and the nature ofNMFS' errors, the court concludes that full vacatur of the decisions
3
In light of the fact that the Sandy Hatchety is a harvest based hatchety that is not
intended to, and does not, benefit these listed species, the court does not share defendants'
concems regarding long te1m impacts to the species that might result from the cessation of
hatchery releases.
7 - OPINION AND ORDER
approving the HGMSs is inappropriate in this case.
However, the court does find partial vacatur of the decision approving the coho HGMP to
be appropriate in light of the fact that it appears hatchery and wild coho are genetically divergent
and preliminary estimates for 2013 suggest the stray rate may be in excess of both the current
HGMP's target of ten percent and the 2013 HGMP's target of five percent. The court had hoped
the parties could reach agreement regarding the 2014 releases or at least could compromise their
respective positions tlu·ough briefing. That did not occur. As such, the comi has very little
guidance from the parties in determining an appropriate smolt release number for coho.
However, it is clear that full vacatur of the coho HGMP is inappropriate for the reasons outlined
above and equally clear that allowing the release of 300,000 smolts would violate the ESA's
institutionalized caution mandate. For the 2013 retum year, the preliminary pH OS estimate is
11.7%.4 In the corresponding release year, 462,950 coho smolts were released. Alsbuty Decl.
[269]
at~
45. In order to reduce the pH OS to roughly five percent, assuming all else is equal, the
court finds, pursuant to the ESA's "institutionalized caution" mandate, that no more than 200,000
coho smolts should be released. Such a reduction would allow the Hatchety to continue
operations and allow for hatchety fish broodstock collection while leaving in place the Hatchery's
mitigation obligations. Accordingly, the comi is partially vacating the 2012 coho HGMP such
that the Sandy Hatchery may not release more than 200,000 coho smolts this year without
violating the terms of the HGMP.
The court declines to require NMFS to prepare an EIS when evaluating the 2013 HGMPs.
4
The comi is wary of utilizing preliminmy data, however, the comi does not believe it
can ignore this data while also fulfilling its obligations to balance the equities in favor of the
listed species.
8 - OPINION AND ORDER
Those HGMPs are different than the ones reviewed by this court and NMFS has additional
information to inform its decisionmaking. Were NMFS to reconsider the 2012 HGMPs, this
court would have no trouble in remanding with instructions to prepare an EIS. However, this
court is not in the business of mandating particular procedures to control an agency's distinct
future decisions. Ntv1FS is an expert agency that is entitled to utilize procedures for its future
decisions in the manner it sees fit. In making those decisions, NMFS must weigh many factors,
including the potential legal consequences of failing to adequately explain its decisions, analyze
important aspects of the problem, or explore its options.
INJUNCTION
Following this comi's ruling [120] on plaintiffs' first Motion for Temporary Restraining
Order/Preliminary Injunction [58], plaintiffs'§ 9 claim, that state defendants' operation and
federal defendants' funding of the Sandy Hatchery causes "take" of threatened fish species in
violation of the ESA, was stayed. 16 U.S. C.§ 1538(a)(1)(B). Plaintiffs now seek to enjoin state
defendants from releasing hatchery smolts on the basis of that previously stayed claim. Plaintiffs
also seek an order requiring ODFW to continue operating the weirs and conducting monitoring
and reporting.
Standards for Injunctive Relief
The issuance of a preliminary injunction is an "extraordinary remedy." lvfonsanto Co. v.
Geertson Seed Farms, 130 S. Ct. 2743, 2761 (2010). "A plaintiff seeking a preliminary
injunction must establish that he is likely to succeed on the merits, that he is likely to suffer
ineparable harm in the absence of preliminary relief, that the balance of equities tips in his favor,
and that an injunction is in the public interest." Winter v. NRDC, 555 U.S. 7, 20 (2008); see also
Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011) (holding that a
9- OPINION AND ORDER
plaintiff need not establish likelihood of success on the merits if the plaintiff can demonstrate
"serious questions" going to the merits combined with a balance of hardships that tips strongly in
their favor). Where injury to the environment is "sufficiently likely ... the balance of harms will
usually favor the issuance of an injunction to protect the environment." Amoco Prod Co. v. Vill.
of Gambell, 480 U.S. 531, 545 (1987).
In cases involving the ESA, the balance of hardships is skewed in favor of injunctive
relief even further than in other matters involving environmental harm. Nat'/ Wildlife Fed'n v.
Burlington N. R.R., Inc., 23 F.3d 1508, 1510-11 (9th Cir. 1994). "In cases involving the ESA,
Congress removed from the comis their traditional equitable discretion in injunction proceedings
of balancing the parties' competing interests." Jd. at 1511(citations omitted). "In Congress's
view, projects that jeopardize the continued existence of endangered species threaten incalculable
harm; accordingly, it decided that the balance of hardships and the public interest tip heavily in
favor of endangered species" and this comi "may not use equity's scales to strike a different
balance." Sierra Club, 816 F.2d at 1383. However, mere allegations ofESA violations are
insufficient and a plaintiff must make a showing that such violations are likely. Nat'! Wildlife
Fed'n, 23 F.3d at 1511.
Discussion
1.
Section 9 claim against state defendants
Plaintiffs contend that state defendants' operation of the Sandy Hatchety causes take of
listed species in violation of§ 9 of the ESA. To obtain relief on this claim, plaintiffs must prove
by a preponderance of the evidence that the Sandy Hatchety's operations results in a violation of
the ESA by causing take of listed species. Defenders of Wildlife v. Bernal, 204 F.3d 920, 925
(9th Cir. 2000); Palila v. Hawaii Dept. ofLand and Nat'! Resources, 639 F.2d 495, 496 (9th Cir.
10- OPINION AND ORDER
1981). As discussed in the court's Opinion and Order [120], so long as the HGMPs are in place
(and the court is not vacating them) the state is immunized from§ 9liability for all actions
allowed under the HGMPs. Accordingly, there is no basis for injunctive relief at this time as
there is no indication that state defendants are out of compliance with the terms of Limit 5.
Without a meritorious claim, or at least serious questions regarding the merits, the court will not
enjoin ODFW from releasing smolts on this basis. Because ODFW is required to employ
mitigation measures such as weirs and monitoring while the HGMPs are in place, there is no
need for a court order requiring such action even if this court were empowered to do so.
3.
Section 9 claim against federal defendants
The claim against federal defendants for § 9 liability rests on the fact that NMFS funds
the Hatchery's operations through the Mitchell Act. To prove take in violation of§ 9 of the ESA,
plaintiffs would need to prove that NMFS' funding causes "take" beyond that allowed in the ITS.
Sweet Home, 515 U.S. at 696 n.9 & 700 n.13 (noting "hmm" is subject to "ordinary requirements
of proximate causation and foreseeability"). At this time, plaintiffs have not met their burden of
persuasion in demonstrating that Mitchell Act funding has been used to raise hatchery smolts at
the Sandy Hatchery or otherwise resulted in "take." Rather, it is unclear whether Mitchell Act
funding contributes to the release of smolts, rather than to monitoring and research, and it
appears that the Sandy Hatchery's core functions are financed through the sale of licenses and
tags to hunters and fishermen in Oregon. Accordingly, this claim does not provide a basis for
injunctive relief at this time. Cold }vfountain v. Garber, 375 F.3d 884, 890 (9th Cir. 2004).
CONCLUSION
For the reasons provided, plaintiffs' Motion for Remedy and Injunctive Relief [247] is
GRANTED IN PART and DENIED IN PART. The court will address issues concerning
11 - OPINION AND ORDER
attomey fees when a separate motion for attorney fees has been filed. The pmiies are ordered to
confer regarding whether the parties wish to litigate plaintiffs' § 9 claims or whether ently of
judgment is appropriate at this time.
IT IS SO ORDERED.
DATED this 1!/day of March, 2014.
~"'r~United States District Judge
12- OPINION AND ORDER
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