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Native Fish Society v. National Marine Fisheries Service

United States District Court, D. Oregon, Portland Division

January 16, 2014

NATIVE FISH SOCIETY and MCKENZIE FLYFISHERS, Plaintiffs,
v.
NATIONAL MARINE FISHERIES SERVICE; REBECCA BLANK, Acting Secretary of the Department 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

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For Native Fish Society, Plaintiff: David H. Becker, LEAD ATTORNEY, Law Office of David H. Becker, LLC, Portland, OR.

For McKenzie Flyfishers, Plaintiff: Peter M.K. Frost, LEAD ATTORNEY, Eugene, OR.

For National Marine Fisheries Service, William Stelle, Regional Administrator, NMFS, Defendants: Coby Healy Howell, LEAD ATTORNEY, U.S. Department of Justice, Enviroment and Natural Resources Divisio, Portland, OR; Mary E. Hollingsworth, Romney S. Philpott, III, U.S. Deptartment of Justice, Washington, DC.

For Oregon Department of Fish and Wildlife, Bruce McIntosh, Assistant Fish Division Administrator, ODFW, Roy Elicker, Director, Oregon Department of Fish & Wildlife, Chris Wheaton, Northwest Region Manager, Oregon Department of Fish & Wildlife, Defendants: Christina L. Beatty-Walters, LEAD ATTORNEY, Oregon Department of Justice, Portland, OR; Sarah K. Weston, Oregon Department of Justice, Special Litigation Unit, Portland, OR.

For Rebacca Blank, Acting Secretary of the Department of Commerce, Defendant: Coby Healy Howell, LEAD ATTORNEY, U.S. Department of Justice, Enviroment and Natural Resources Divisio, Portland, OR; Romney S. Philpott, III, U.S. Deptartment of Justice, Washington, DC.

For Association of Northwest Steelheaders, Northwest Sportfishing Industry Association, Northwest Guides and Anglers Association, Amicuses: Timothy J. Bernasek, Daniel J. Drazan, Dunn Carney Allen Higgins & Tongue, LLP, Portland, OR; Madelynne D. Sheehan, Sheehan & Sheehan LLC, Scappoose, OR.

OPINION

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OPINION AND ORDER

Ancer L. Haggerty, United States 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 Stelle, Regional Administrator NMFS; Rebecca Blank, Acting Secretary of the Department of Commerce (collectively " federal defendants" or " NMFS" ); the Oregon Department of Fish 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, funding, and managing the Sandy Hatchery. Following this court's ruling [120] on plaintiffs' Motion for Temporary Restraining Order/Preliminary Injunction [58], plaintiffs' only claim against state defendants, that state defendants' operation

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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)(1)(B). Thereafter, over the objections of federal defendants, the court determined [161] that it would consider certain materials outside the administrative record in evaluating plaintiffs 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 terms or complex subject matter. Plaintiffs and federal defendants have each moved for partial summary judgment. Plaintiffs also move to strike certain 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 Partial Summary Judgment. Oral argument was held on January 8, 2014. For the following reasons, plaintiffs' Motion to Strike [215] is denied, 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.

BACKGROUND

Plaintiff Native 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, NEPA, and the APA. Plaintiffs and federal defendants each move for summary judgment on plaintiffs' Third, Fourth, Fifth, and Sixth Claims for relief. At this time, litigation concerning 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 Secretary 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." Id. § 1532(19). The ESA's implementing regulations further define " harm" 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 patterns, 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, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995) (upholding the regulatory definition of " harm" ).

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

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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." Id. 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 hatchery is operated pursuant to a hatchery 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 hatchery fish." Id. at § 223.203(b)(5)(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 carried out by such agency ... 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 determines 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 determines 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. Id.; 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 formulate 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). If NMFS 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 such jeopardy. Id. § 1536(b)(3).

If NMFS 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 nevertheless 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. Id.;

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50 C.F.R. § 402.14(i). The ITS must specify measures to limit and measure take. Id. If during the course of the subject action, the conditions of the ITS are exceeded, the action agency must reinitiate formal 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 of NEPA is: (1) to ensure the agency " will have available, and will carefully consider, detailed information concerning significant environmental impacts" of its decisions; and (2) to guarantee that this information will be available to the public. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). NEPA is a procedural statute that does not mandate particular 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 NEPA 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, 99 S.Ct. 2335, 60 L.Ed.2d 943 (1979). The agency must prepare a detailed environmental impact statement (EIS), " [i]f there is a substantial question whether an action may have a significant effect on the environment." Ctr. for Biological Diversity v. Nat'l 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 prepare 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. 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 of Mt. 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 barriers to normal 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 Evolutionary Significant Unit (ESU), Lower Columbia River coho ESU, Columbia River chum ESU, and Lower ...


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