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April 09, 2007 Columbia Basin Fish and Wildlife Bulletin

A 2005 lower court order that struck down the federal government's plan for protecting salmon and steelhead that migrate through the federal Columbia/Snake River hydrosystem was upheld this week by the U.S. Court of Appeals for the Ninth Circuit.

The Ninth Circuit opinion released today (Monday) rejects appeals of a May 2005 order by U.S. District Court Judge James A. Redden that said the salmon protection plan was invalid under the Endangered Species Act. The appeals were filed by the U.S. Justice Department and the state of Idaho.

The appellate court opinion also upheld a Redden remand order that required NOAA Fisheries, in collaboration with states and tribes, to devise a new, legally and biologically defensible "biological opinion" for the Federal Columbia River Power System. The ESA BiOp "consultation" process normally involves only federal entities.

The court-supervised collaborative effort is now underway to write a new salmon and steelhead BiOp for the FCRPS. The deadline for producing that BiOp is July 31, but during a recent status conference Redden and litigants said there is a strong likelihood that an extension will be needed.

Ninth Circuit rules allow Idaho and/or the federal government to ask either the three-judge panel, or the entire Ninth Circuit, for a rehearing on the issues presented in the appeals.

"After a careful review of the record, we conclude that the district court correctly determined that the jeopardy analysis of the 2004 BiOp contained structural flaws that rendered it incompatible with the ESA," according to the unanimous opinion rendered by the Ninth Circuit panel of circuit judges made up of A. Wallace Tashima, Sidney R. Thomas, and Richard A. Paez.

Thomas wrote the 35-page opinion, which can be found at http://www.ca9.uscourts.gov/ca9/newopinions.nsf/opinions+by+date?OpenView&Start=1&Count=100&Expand=1.1#1.1

"Its rejection of the 2004 BiOp was entirely appropriate, and it did not abuse its discretion in entering the remand order," the Ninth Circuit panel said of the district court's invalidation of the 2004 NOAA Fisheries' Federal Columbia River Power System "BiOp and the judge's October 2005 order that the ESA document be rewritten during a legal remand.

The appellate panel noted that its decision represented yet "another round in the complex and long-running battle over salmon and steelhead listed under the Endangered Species Act. NOAA first issued a biological opinion on the FCRPS in 1993 after the first of the Columbia basin stocks, the Snake River fall chinook salmon, was listed under the ESA in 1992. BiOps are required under the ESA to assess whether particular federal "actions" jeopardize the survival of listed stocks.

That 1992 BiOp was challenged in district court by the Idaho Department of Fish and Game, but the challenge was rendered moot after NOAA issued a new BiOp in 1995.That BiOp was superseded by a 2000 version that was ultimately challenged successfully when Redden in May 2003 decided it was "arbitrary and capricious because it relied on (1) federal mitigation actions that had not been subject to Section 7 consultation and (2) non-federal mitigation actions that had not been shown reasonably certain to occur."

As a result, the 2000 BiOp was in turn replaced with the 2004 version that included "several structural changes to its jeopardy analysis" the Ninth Circuit noted, from previous BiOps.

The Ninth Circuit opinion sided with Redden's assertion that a new analytical approach tried in the November 2004 BiOp fell short of ESA requirements. The BiOp determined that the hydrosystem did not jeopardize the survival of 13 listed Columbia River basin salmon and steelhead stocks.

"The analytical approach of the 2004 BiOp, issued under court order after a remand in 2003, broke sharply from NMFS's previous analyses in the 1995 and 2000 BiOps, and did so in ways that lacked any reasonable foundation in the ESA's statutory mandates," the Ninth Circuit said.

"The district court properly held that NMFS may not use a hypothetical 'reference operation' in its jeopardy analysis to exclude from the proposed action's impacts the effects of related operations NMFS deems 'nondiscretionary,'" Thomas wrote. "NMFS admits that it chose the reference operation approach in order to avoid 'trying to precisely determine the extent of the Action Agencies' discretionary operation.' However, ESA does not permit agencies to ignore potential jeopardy risks by labeling parts of an action nondiscretionary."

The Ninth Circuit opinion agreed with Redden in saying that the "2004 BiOp was legally deficient because its jeopardy analysis did not adequately consider the proposed action's impacts on the listed species' chances of recovery."

"At its core, the 2004 BiOp amounted to little more than an analytical slight of hand, manipulating the variables to achieve a 'no jeopardy' finding," the Ninth Circuit opinion said.

"Statistically speaking, using the 2004 BiOp’s analytical framework, the dead fish were really alive," Thomas wrote. "The ESA requires a more realistic, common sense examination. For these reasons, the district court’s rejection of the 2004 BiOp’s jeopardy analysis was entirely correct."

The appellate panel noted that ESA’s section 7 requirements "apply to all actions in which there is discretionary federal involvement or control." Section 7 describes the consultation process that must unfold between NOAA and so-called "action" agencies, in this case the U.S. Army Corps of Engineers, Bureau of Reclamation and Bonneville Power Administration, to determine if a proposed action poses jeopardy to listed fish.

But the Ninth Circuit opinion said that the action assessed in the 2004 BiOp was improperly defined.

"We cannot approve NMFS’s interpretation of this rule as excluding from the agency action under review any portions of admittedly-discretionary actions that the agency deems nondiscretionary, since this approach conflicts with ESA's basic mandate," the April 9 opinion says.

Redden ruled that the analytical approach was lacking, and the Ninth Circuit agreed, saying that the "two-stage comparative analysis did not satisfy NMFS's obligation to make its jeopardy determination based on the full natural and human context of the proposed action."

"The district court also properly concluded that the 2004 BiOp impermissibly failed to incorporate degraded baseline conditions into its jeopardy analysis," the Ninth Circuit opinion said. "The 2004 BiOp initially evaluated the effects of the proposed action as compared to the reference operation, rather than focusing its analysis on whether the action effects, when added to the underlying baseline conditions, would tip the species into jeopardy.

"Like the district court, we cannot approve NMFS’s insistence that it may conduct the bulk of its jeopardy analysis in a vacuum," Thomas wrote.

"Our approach does not require NMFS to include the entire environmental baseline in the "agency action' subject to review. It simply requires that NMFS appropriately consider the effects of its actions 'within the context of other existing human activities that impact the listed species.”

The opinion says NOAA took a "cramped view" of that ESA discretionary prescription.

"NMFS’s contention that competing mandates for flood control, irrigation, and power production create any immutable obligations that fall outside of agency discretion is not persuasive," the Ninth Circuit opinion says.

"The 2004 BiOp recognizes that Congress has not quantified any of these competing needs, or otherwise specified the manner in which the agencies must fulfill them; the agencies thus appear to retain discretion in this area," according to the opinion. "Moreover, at least some of the competing statutory mandates clearly acknowledge that implementing agencies must accommodate wildlife needs."

"The 2004 BiOp’s jeopardy analysis included in the environmental baseline for the proposed action the existing FCRPS, various supposedly nondiscretionary dam operations, and all past and present impacts from discretionary operations. NMFS also adopted a novel 'reference operation' approach in the 2004 BiOp, purportedly in order to account for the existence of the FCRPS dams," the Ninth Circuit said. "The reference operation consisted of the dams and a hypothetical regime for operating them, which, according to NMFS, was the most beneficial to listed fishes of any possible operating regime.

"NMFS also found, though, that certain aspects of FCRPS operations were nondiscretionary, given the dams' existence, and that those aspects should not be considered part of the action under ESA review," according to the appellate court panel.

"NMFS segregated its analysis, first evaluating whether the proposed agency action -- consisting of only the proposed discretionary operation of the FCRPS -- would have an appreciable net effect on a species," the Ninth Circuit opinion said. "It considered additional context only if it found such an effect.

"By using this so-called comparative approach rather than a more holistic, aggregate approach, NMFS concluded that the proposed action would not jeopardize the continued existence of the listed fishes," the opinion said. "Although the 2004 BiOp did not point to any improvement in the fishes’ status or the impacts of FCRPS operations, its new approach attributed only a much smaller portion of the fishes’ perilous condition to the proposed operations under review."

The Justice Department' appeal of Redden's remand order sought to prove that the required collaboration went beyond the judge's legal authority. The Ninth Circuit disagreed.

"We hold that on this record, requiring consultation with states and tribes constitutes a permissible procedural restriction rather than an impermissible substantive restraint," the Ninth Court opinion says. “The district court’s chosen remedy was 'reasonably calculated to remedy an established wrong,' and was not an abuse of discretion."

The Ninth Circuit also said that:

"The district court properly held that NMFS violated the ESA by failing to ensure that proposed FCRPS operations would not destroy or adversely modify critical habitat for any listed fishes. Specifically, the district court found inadequate NMFS’s analysis of impacts on the recovery value of critical habitat for Snake River Spring/Summer Chinook salmon, Snake River Fall Chinook salmon, and Snake River Sockeye salmon, the only three listed species with designated critical habitat at the time the 2004 BiOp was issued."

And that:

"We agree with the district court that NMFS's critical habitat determination was arbitrary and capricious because it (1) did not adequately consider the proposed action’s short-term negative effects in the context of the affected species’ life cycles and migration patterns, (2) relied on uncertain long-term improvements to critical habitat to offset certain short-term degradation, and (3) concluded that the species’ critical habitat was sufficient for recovery without adequate information to make that determination."

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