United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
ANCER L. 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 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. On January 16, 2014, this court entered an Opinion and Order  resolving plaintiffs' and federal defendants' cross motions for summary judgment, granting in part and denying in part each party's motion. In so ruling, the court concluded that NMFS had violated NEPA and the ESA in approving Hatchery Genetic Management Plans (HGMPs) for the Sandy Hatchery. Plaintiffs now advance a Motion for Remedy and Injunctive Relief  seeking vacatur of the decisions approving the HGMPs. Additionally, plaintiffs seek an injunction preventing the release of smolts from the Sandy Hatchery 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 part.
The parties and the court are more than familiar with the legal and factual background to this matter. It has been detailed in the partiies 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 partial summary judgment to plaintiffs in this case, the court concluded that NMFS violated NEPA by failing to produce an environmental impact statement (EIS) and 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 particular, 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 Hatchery are no more than moderately divergent from wild fish.
In the years preceding NMFS' approval of the HGMPs, stray rates at the Sandy Hatchery were excessively high. The removal of the Marmot in 2007 and 2008 opened the upper Sandy River Basin to both wild and hatchery fish. The percentage of hatchery origin spawners (pHOS) 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 Decl.  ¶ 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 Decl.  at ¶ 12. In 2013, the pHOS for spring Chinook was 9.3%, and for winter steelhead it was 6%. Id. at ¶ 7; Ex. 1 to Weston Decl. [239-1] at 25. The notable exception to this downward trend is the preliminary estimate for 2013 coho pHOS. Fourth Lewis Decl.  at ¶ 7. Because information concerning reduced stray rates was post-decisional, it was not considered by the court for purposes of summary judgment.
After this court issued its Opinion and Order resolving plaintiffs' first Motion for Preliminary Injunction , but prior to resolution of the parties' 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 court 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 court "is not required to set aside every 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 equity." Id. (citing Westlands Water Dist. 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 necessary 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'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 839 F.Supp.2d 1117, 1128 (D. Or. 2011) ("District courts have broad latitude in fashioning equitable relief when necessary 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 errors are and the disruptive consequences of an interim change that may itself be changed.'" Id. (quoting Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm'n, 988 F.2d 146, 150-51 (D.C. Cir.1993)).
As discussed above, although vacatur is presumptively appropriate, this court has equitable discretion to tailor relief in response to an agency's errors. 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 errors were, and second, what the disruptive consequences of vacatur would be. In weighing these issues, the court 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. Marsh, 816 F.2d 1376, 1383 (9th Cir. 1987) (citation and quotation omitted).
First, NMFS' primary errors 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. While NMFS failed to adequately explain its decisions, it appears that the agency's predictions largely proved correct. 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 Hatchery. These errors can be corrected though additional explanation and were more procedural, than substantive, in nature. As such, the court finds NMFS' errors to have been relatively minor. The primary exception is the agency's approval of a ten percent stray rate based on the genetic similarity of hatchery 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 error is particularly troubling with respect to coho, as the Hatchery's coho broodstock has not incorporated wild broodstock since 1996. The 2013 ...