McKenzie Flyfishers et al v. McIntosh et al

Filing 136

OPINION AND ORDER: Denying Motion for Judgment 133 . The court declines to enter final judgment at this time. Defendant is ordered to provide the court with a report regarding the status of the pending HGMPs before NMFS within ninety (90) days of the date of this order. Signed on 5/26/2015 by Magistrate Judge Thomas M. Coffin. (plb) Modified to add "opinion and order" to document title on 5/27/2015 (ljb).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

Case No.

McKENZIE FLYFISHERS,
STEAMBOATERS

6:13-cv-02125-TC
OPINION AND ORDER

Plaintiffs,
v.

BRUCE MciNTOSH, SCOTT PATTERSON,
and OREGON DEARTMENT OF FISH
AND WILDLIFE.
Defendants.

COFFIN, Magistrate Judge:
Presently before the court is plaintiffs' McKenzie Flyfishers
and

Steamboaters

("McKenzie

Flyfishers")

Judgment and/or for Partial Reconsideration

Motion

for

(ECF #133) .

Entry

of

For the

reasons set forth below, plaintiffs' motion is denied.
DISCUSSION
Plaintiffs move the court to enter judgment denying its Motion
for Summary Judgment and Injunctive Relief (ECF #73) and granting
defendant's Motion for Summary Judgment (ECF #87).
1 - OPINION AND ORDER

Plaintiffs also

move the court to reconsider its Opinion and Order of March 13,
2015

(ECF #130).
Specifically,

Rules

54(c),

evidence,
March 13,

plaintiffs appear to argue that,

58(d),

and

60(b),

because

of

pursuant to

newly

discovered

this court should reconsider its Opinion and Order of
2015

and during the

Marine Fisheries Service

(NMFS)

time period before the National
approves a Hatchery and Genetics

Management Plan (HGMP) for the McKenzie Hatchery, the court should
enter judgment that ustate[s] that [defendant] shall use a rolling
three-year average beginning in 2018 to calculate

[proportion of

hatchery-origin spawning (pHOS)] in the McKenzie River basin, and
achieve ten percent or less pHOS by 2020."

Pl.s' Mot. for Entry

of J. and/or for Partial Recons. 2 (citing Fed. R. Civ. P. 54(c),
58(d), and60(b))

Plaintiffs also argue that defendant's uHGMP is

unclear as to what parts of the McKenzie River basin [defendant]
will use to calculate pHOS" and assert for the first time on its
instant motion that the court should state in its Opinion that pHOS
should ube calculated in the McKenzie basin as a whole, excluding
the areas above Cougar Dam and Trail Bridge Dam."

Id.

Plaintiffs premise their arguments on a theory that uif there
is

no

deadline

immunity

from

to meet

the

liability for

Def.'s Opp'n to Mot.

2 - OPINION AND ORDER

pHOS

standard,

incidental

[defendant]

take."

Pl. s'

for J. and/or for Partial Recons.

has

no

Reply to
2

(citing

Or. Natural Res. Council v. Allen,

476 F.3d 1031, 1039

(9th Cir.

2007) .
Under Rule 58(d), a party may request that judgment be "set
out in a separate document."

Fed. R. Civ.

P. 58(d).

A judgment

should "grant the relief to which each party is entitled."
Civ.

P. 54 (c).

Fed. R.

Further, the court may reconsider any order for,

among other reasons,

"newly discovered evidence," and "any other

reason that justifies relief."

Fed. R. Ci v. P. 60 (b) ( 2) .

In this court's Opinion and Order of March 13, 2015, it found
that defendant was in compliance with RPA 6.1.4 because it could
release only the remaining 604,750 smolts it had into the McKenzie
River basin in 2015, some 182,250 fewer than NMFS expressly stated
in its April 16, 2014 letter 1 would satisfy the alternative in RPA
6.1.4.

ECF #130; 15.

However, this court also noted that "management of the program
is a work in progress that implicates a number of variables" and
after

the

use

of

a

functional

sorter

at

the

Leaburg

o'am was

determined to be infeasible, the goal of meeting a ten percent or
less pHOS "must be achieved by management practices that require

1

NMFS' s April 16, 2014 letter states that "an 8. 5 percent
reduction in the number of hatchery spring Chinook salmon smolts
that are annually released into the McKenzie River," or 74,000
smolts, from 861,000 to 787,000, beginning in 2015, the benefits of
which "will commence in 2018," "satisf[ies] the alternative in RPA
action 6.1.4 to reduce the number of hatchery fish on the natural
spawning grounds." ECF #130; 13-14 (citing Decl. of Steven Marx in
Supp. of State Def.'s Cross-Mot. for Summ. J. and Opp'n to Pl.s'
Mot. for Summ. J. 145-46).
3 - OPINION AND ORDER

greater patience."

Id.

at 17-18.

This court also stated that

"although there is an active BiOp, RPA,

and ITS in place through

2023," and despite the fact that "several HGMPs have been submitted
to NMFS,

including the Willamette HGMP

(ODFW 2003,

2004a,

2005a,

2007a, 2008a, 2008b)" and the 2014 McKenzie Spring Chinook Salmon
HGMP, "there is not currently an active HGMP in place."

Id. at 11

(citing Def.'s Ans. to First Am. Compl. for Decl. and Inj. Relief
<J[

38) .
Consequently, this court found that although defendant was in

compliance with RPA 6.1.4,
6.2.2,

defendant

was

still

pursuant to RPA 6.1-6.1.1 and 6.2.1required

to

implement

the

actions

described in the aforementioned HGMP's once adopted by NMFS.

Id.

(citing RPAs 6.1-6.1.1; 6.2.1-6.2.2 at AR035180-86).

Accordingly,

this

Judgment

court

denied

Injunctive Relief
for

Summary

Plaintiffs'
(ECF #73)

Judgment

(ECF

Motion

for

Summary

and

and granted Defendant's Cross-motion
#87),

but

withheld

judgment

until

defendant consulted with NMFS to establish a time frame to achieve
a ten percent or less pHOS and submitted that deadline to the court
for approval.
Pursuant to this court's Order, defendant consulted with NMFS
and submitted an HGMP that outlined the process it would use to
achieve a ten percent or less pHOS by 2020 based on a three-year
rolling

average

from

Conferral with NMFS, 5.

4 - OPINION AND ORDER

2018

to

2020.

Notice

of

State

Def.'s

On April 6, 2015, NMFS advised defendant

that

its

proposed

consideration

HGMP

process,

was
but

"sufficient"
"for

public

to

begin

review

the

and

formal

efficiency

purposes," the consideration process would not begin until after
the Army Corps of Engineers (Corps) "submits proposed HGMPs for the
three other Willamette River spring Chinook salmon hatcheries on
the

Willamette

sufficient."

River,

Id.

at 5

with NMFS, Ex. 2; 1).

and

NMFS

finds

those

proposed

HGMP's

(citing Notice of State Def. 's Conferral

Moreover, NMFS's April 6, 2015 letter states

that it and defendant "discussed and agreed" that it "makes sense"
to wait for the Corps to submit three additional HGMPs before NMFS
begins the formal consideration process of defendant's HGMP.

Id.

Here, this court found that pursuant to NMFS's April 16, 2014
letter, so long as defendant releases no more than 787,000 smolts
per

year

into

the

JVlcKenzie

River

basin

defendant

would be

in

compliance with RPA 6.1.4 and, by extension, the 2008 BiOp and its
incorporated ITS until such time that an HGMP gets approved and
supercedes RPA 6.1.4 or until a pHOS of ten percent or less is
achieved.

Consequently, because an HGMP has not yet been approved,

plaintiffs' argument that this court should reconsider its Opinion
and Order of March 13, 2015 because of "newly discovered evidence"
is without merit because until an HGMP is approved, there is no new
evidence to consider.
Additionally,

plaintiffs'

argument

deadline to meet the pHOS standard,

5 - OPINION AND ORDER

that

"if

[defendant]

there

is

no

has no immunity

from liability for incidental take" is flawed because plaintiff
misstates the holding in Oregon Natural Resources Council v. Allen.
Specifically, the court in Oregon Natural Resources Council held
that after the partial revocation of a BiOp, the remaining ITS that
authorized the taking of all northen spotted owls associated with
a

timber harvest was

invalid because " ( 1)

the withdrawal

of a

portion of the BiOp leaves the [ITS] without an underlying factual
predicate;

(2) the [ITS] presents a non-numerical measure of take

without explaining why no number was provided; and

(3)

the

[ITS]

sets a measure of take that does not allow for reinitiation of
consultation."
Consequently,

Or.

Natural

Res.

Council,

476

nothing in that case addresses the

liability when

there

is

no

deadline

to meet

a

F.3d

1032-33.

imposition of
pHOS

standard.

Moreover, this court can find no legal authority to support such a
proposition.

Accordingly, this court declines to insert terms from

defendant's unapproved HGMP into its Opinion that would require
defendant to do more than NMFS's April 16,

2014 letter,

and by

extension, RPA 6.1.4 requires.
Moreover, because the HGMP is not yet binding on defendant,
plaintiffs' argument that this court should clarify in its Opinion
"what parts of the McKenzie River basin

[defendant]

will use to

calculate pHOS," is not ripe for adjudication and is, therefore,
rejected.

6 - OPINION AND ORDER

Accordingly, plaintiffs' Motion for Entry of Judgmeht and/or
for

Partial

Reconsideration

(ECF

#133)

is

DENIED.

However,

defendant's obligation under RPA 6.1.4 to releases no more than
787,000 smolts per year into the McKenzie River basin until a pHOS
of ten percent or less is achieved, is distinct from its obligation
under

RPA

6.1-6 .1.1

and

6. 2.1-6. 2. 2

to

implement

the

actions

described in the Willamette and McKenzie Spring Chinook Salmon
HGMPs once approved by NMFS.

However,

the record reveals that

although seven HGMPs have been submitted over that past dozen years
that would address defendant's management practices of the McKenzie
Hatchery,

NMFS

has

not

approved

any

of

them2 •

Moreover,

as

previously stated, defendant and NMFS "discussed and agreed" that
it "makes sense" to wait for the Corps to submit three additional
HGMPs before NMFS begins the formal consideration process of the
HGMP that defendant recently submitted.
Dovetailing with the HGMPs anticipated from the Corps is the
fact

that plaintiffs and the Corps have entered into a Consent

Decree

(ECF #65)

in this case which provides,

"

that the court retain jurisdiction to oversee compliance

with the terms and conditions of this decree,

2

in pertinent part,

and to resolve any

In its Answer (ECF #8) to Plaintiffs' Amended Complaint (ECF
#21), defendant admitted that NMFS had not approved an HGMP for the
McKenzie Hatchery and reserved the right to inform the court if
NMFS approved an HGMP while the case was ongoing.
Def.'s Ans. to
First Am. Compl. for Decl. and Inj. Relief 'JI38.
On the date of
this Opinion and Order, defendant has not indicated that NMFS has
approved an HGMP.
7 - OPINION AND ORDER

motions to modify or otherwise change any of the terms

. The

court's continuing jurisdiction shall terminate on the date that
NMFS

approves

an HGMP

for

the

McKenzie

River

Hatchery

II

(emphasis supplied).
Accordingly,

although I deny plaintiffs' Motion for Summary

Judgment and Injunctive Relief (ECF #73) and grant defendant ODFW's
Motion

for

Summary

Judgment

(ECF

#87),

since

I

am

retaining

jurisdiction in any event pursuant to the Consent Decree (ECF #65)
until NMFS approves an HGMP, and since ODFW has agreed to wait for
the Corps to submit additional HGMPs before NMFS begins the formal
consideration process of ODFW's latest proposed HGMP,
declines

to

enter

final

judgment

at

this

time.

the court

Rather

than

fragment the case and make the matter more convoluted, I intend to
monitor the progress of the parties as they interact with NMFS to
obtain approval of one of the pending HGMPs.

Defendant is ordered

to provide the court with a report regarding the status of the
pending HGMPs before NMFS within ninety days of the date of this
Order and to provide status updates every ninety days thereafter
until NMFS approves an HGMP.
IT IS SO ORDERED.
Dated this

J

-r-

~

day of May 2015.

THOMAS M. COFFIN
United States Magistrate Judge
8 - OPINION AND ORDER