NINTH CIRCUIT UPHOLDS REDDEN’S REJECTION OF FCRPS
April 09, 2007 Columbia Basin Fish and Wildlife
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
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
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
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
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
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
"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
"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
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
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
"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."