Populations of Humpback Chub go up, but FWS goes down: Federal Judge remands another FWS BiOp on the Glen Canyon Dam for ESA violations.
Grand Canyon Trust v. U.S. Bureau of Reclamation, Case No. CV-07-8164-PHX-DGC, 2010 WL 2643537 (D.Ariz. June 29, 2010)(David G. Cambell, District Judge).
SUMMARY: This case concerns the operation of Glen Canyon Dam on the Colorado River by the United States Bureau of Reclamation (“Reclamation”). Plaintiff Grand Canyon Trust (the “Trust”) claims that Reclamation's operation of the Dam violates the Endangered Species Act (“ESA”) by jeopardizing and taking the endangered humpback chub and by destroying or adversely modifying its critical habitat. The Trust also claims that Reclamation and the United States Fish and Wildlife Service (“FWS”) have failed to comply with relevant federal statutes, including the Endangered Species Act.
The Court has issued two previous orders addressing the merits of claims made by the Trust in this case: Grand Canyon Trust v. United States Bureau of Reclamation, No. CV-07-8164-PCT-DGC, 2008 WL 4417227 (D.Ariz. Sept. 26, 2008) (Trust I ), and Grand Canyon Trust v. United States Bureau of Reclamation, 623 F.Supp.2d 1015 (D.Ariz.2009) (Trust II ). This order addresses a third round of briefing on the Trust's claims. For reasons that follow, the Court will grant in part and deny in part the Trust's motion for summary judgment on Claim 9, grant summary judgment to Reclamation and FWS on Claims 1, 2, 10, and 11, and take Claim 3 under advisement. The Court will remand the 2009 Incidental Take Statement (the “2009 ITS”) to FWS for further consideration by September 1, 2010, and will establish a schedule for additional activities in this lawsuit once FWS has revised the 2009 ITS.
EXCERPT: The Trust contends that the 2009 ITS is also illegal because the chosen metric for determining when incidental take has been exceeded -- FWS's consultation trigger is not “linked to the take of the protected species” in the mainstem. As discussed above, agencies should attempt to use a numerical value of take. Ariz. Cattle I, 273 F.3d at 1250. “A surrogate is permissible if no number may be practically obtained,” but the surrogate “must be able to perform the functions of a numerical limitation,” must “contain measurable guidelines to determine when incidental take would be exceeded,” and must be “linked to the take of the protected species.” Or. Natural Res. Council, 476 F.3d at 1038.
The consultation trigger does not satisfy these requirements. As noted above, the 2009 ITS concludes that MLFF will not result in a significant drop in the adult chub population. Dkt. # 180-1 at 87. Take in-stead will occur among young chub in the mainstem. Id. FWS does not explain how a trigger based on the adult chub population that is not expected to be affected by the take of young chub constitutes an accu-rate measure for take of young chub. Nor does FWS explain why the level of the trigger itself - a significant decline in the number of adult chub in any single year or a drop in the population of adult fish below 3,500 - represents the point at which the taking of young chub should be deemed excessive. FWS merely notes that young chub will be taken by MLFF, the level of their take cannot be quantified, and, in a single sentence, that FWS therefore will use the consultation trigger as the point at which the take statement will be deemed exceeded. Id. As the Ninth Circuit has held, a surrogate for take must perform the function of a numerical limitation by identifying the point at which it will be clear that the permitted level of take has been exceeded. Or. Natural Res. Council, 476 F.3d at 1038. FWS has failed to show why the adult-based consultation trigger, established by FWS and Reclamation pursuant to 50 C.F.R. § 402.16(b), either accurately measures the take of young chub or correctly identifies the level at which the take of young chub becomes excessive.
ORDERED: The 2009 ITS is remanded to FWS for reconsideration consistent with this order. FWS shall have until September 1, 2010, to revise the 2009 ITS. A copy of the new ITS shall be provided to counsel for the Trust on or before the close of business on September 3, 2010.
KEITHINKING: FWS prevailed on numerous claims related to the 2008 biological opinion, but it only takes one mistake to trigger a judicial remand, and a do-over for the executive branch. Increasingly, Courts have been remanding biops for the failure to include an adequate "consultation trigger." See, e.g., 11th Circuit opinion discussed here on ESA blawg. For more information on the Glen Canyon Dam, the endangered humpback chub, and this litigation, visit FWS Arizona Field Office, USGS report on the experimental flows, the press release by Earthjustice, and news coverage by High Country News.
The Glen Canyon Dam fundamentally altered historical flows of the Colorado River, in turn triggering the decline of the humpback chub (picture above from the Colorado River Commission of Nevada) and its listing as an endangered species. Since 1994, FWS and the Bureau of Reclamation have been working on (or, at times, arguing over) the need to modify operations to generate high steady river flows in the spring and low steady flows in the summer and fall, or alternatively, modified low fluctuating flow (“MLFF”) or seasonally adjusted steady flow (SASF). Consistent with the recent 2008 biological opinion, the agencies have agreed on the implementation of a 2008 Experimental Plan - which includes the modified low fluctuating flows (MLFF) approach. In the past, FWS was concerned that the fluctuating river flows authorized by MLFF - flows that rise and fall as the demand for electrical power generated by the Dam rises and falls - would erode beaches and backwaters needed by young chub to survive and recover, and would maintain temperatures in the river that were too cold for chub survival and recovery. FWS changed its position in the 2008 Opinion. FWS opined that Reclamation's 2008 Experimental Plan, which would continue to use MLFF for ten months of each year, did not jeopardize the humpback chub or adversely modify its critical habitat. Notably, the Humpback Chub population increased 50 percent from 2001 to 2008. See USGS summary.