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KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

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9th Circuit ruling on bull trout consultation could have long term ramifications

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WILD FISH CONSERVANCY v. SALAZAR, No. 09-35531, --- F.3d ----, 2010 WL 4948477 (9th Cir. Dec. 7, 2010)(Opinion by MARSHA S. BERZON, Circuit Judge).

SUMMARY: We are faced once again with the far-reaching effects of federal hydroelectric projects in the Columbia River Basin on the region's native fish species. See, e.g., Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d 917 (9th Cir.2008); Nw. Res. Info. Ctr., Inc. v. Nw. Power Planning Council, 35 F.3d 1371 (9th Cir.1994). The fish at the heart of this particular controversy is not salmon, as in most of the earlier cases, and the potential threat to its survival and recovery is not a hydroelectric dam but a hatchery project intended to mitigate a dam's impact.  This action, brought by the Wild Fish Conservancy (“the Conservancy”), centers on a biological opinion (“BiOp”) addressing the effects of the operations of the Leavenworth National Fish Hatchery (“the Hatchery”) on the bull trout. See U.S. Fish & Wildlife Serv., Biological Opinion for the Operation and Maintenance of the Leavenworth National Fish Hatchery Through 2011 (2008)(hereinafter “2008 BiOp”). The bull trout is listed under the Endangered Species Act (“ESA”), 16 U.S.C. Secs.1531-44, as threatened throughout its range. See Determination of Threatened Status for Bull Trout in the Coterminous United States, 64 Fed.Reg. 58,910 (Nov. 1, 1999). The 2008 BiOp, prepared by the U.S. Fish and Wildlife Service (“the Service”), concluded that the Hatchery's operations from 2006 to 2011 were not likely to jeopardize the continued existence of the bull trout. Because the Service in several respects failed to articulate a rational connection between the facts found and the “no jeopardy” conclusion, we reverse and remand.

EXCERPT RE: SCOPE OF THE ACTION: We consider first whether the Service permissibly defined the scope of the action as the operations and management of the Hatchery for a period of five years. The Conservancy objects to framing the operation of an ongoing project as a short-term action, arguing that the Service's choice of the action's scope allowed it to avoid considering whether the operations of the Hatchery would lead to the extirpation of the Icicle Creek bull trout population at some point beyond the five-year period, as well as whether that loss, if it occurred, would compromise the interim recovery unit. The Service maintains that its choice of the five-year term was not arbitrary and capricious because, as the 2008 BiOp states, the Hatchery anticipated that the replacement of its water intake system in 2010 (now delayed, as we have noted) would require it to reinitiate section 7 consultation.

Evaluating the scope of an agency action can be significant in determining the adequacy of a biological opinion. “The scope of the agency action is crucial because the ESA requires the biological opinion to analyze the effect of the entire agency action.”   Conner v. Burford, 848 F.2d 1441, 1453 (9th Cir.1988). We “interpret the term ‘agency action’ broadly,” because “caution can only be exercised if the agency takes a look at all the possible ramifications of the agency action.” Id. (internal quotation marks and alterations omitted)...

What the Service's argument does not acknowledge is that the Hatchery has been operating for seventy years and is expected to continue operating into the future. The Hatchery simply made a decision, endorsed by the Service, to define the action as a five-year term of operations, when it might as easily have chosen a thirty-year term or a one-year term...

To give meaning to the ESA's exhortation that agencies ensure that their actions are “not likely to jeopardize the continued existence of any endangered species or threatened species,” 16 U.S.C. Sec. 1536(a)(2), the Service was required to issue a comprehensive biological opinion taking a long view of the Hatchery's effects on the bull trout, or to explain adequately why any such effort would be unproductive in assessing the long-term impact of the Hatchery's operations on the bull trout. Here, the Service did neither. The decision to limit the analysis in the 2008 BiOp to a five-year term of operations and management was therefore arbitrary and capricious.

EXCERPT RE: INCIDENTAL TAKE: “Incidental Take Statements set forth a ‘trigger’ that, when reached, results in an unacceptable level of incidental take, invalidating the safe harbor provision, and requiring the parties to re-initiate consultation.”   Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife Serv., 273 F.3d 1229, 1249(9th Cir.2001). Preferably, the trigger is numerical, but the Service may use a surrogate - for example, changes in ecological conditions affecting the species...

Here, the Service has set a clear numerical cap, but a numerical cap is useful only insofar as the action agency is capable of quantifying take to determine when the trigger has been met. See Or. Natural Res. Council, 476 F.3d at 1039 (explaining that the incidental take statement must”set a clear standard for determining when the authorized level of take has been exceeded”); Natural Res. Def. Council, Inc. v. Evans, 279 F.Supp.2d 1129, 1187 (N.D.Cal.2003), cited with approval in Or. Natural Res. Council, 476 F.3d at 1038 (“It is arbitrary and capricious to set the trigger at one animal unless defendants can adequately detect the taking of a single animal.”). Thus, the Service must either specify monitoring and reporting requirements with respect to the twenty-bull trout limit or, if appropriate, select a surrogate trigger that can be monitored. Therefore, we hold that the ITS failed to establish a meaningful trigger for renewed consultation after the take exceeded authorized levels.

BullTroutNCTC.jpg
Bull trout are a cold-water fish of relatively pristine stream and lake habitats in western North America.  There was a time when bull trout, like most salmonids, were wildly abundant in the six western states of Oregon, Washington, California, Nevada, Idaho and Montana.  They have the most specific habitat requirements of salmonids, including the "Four C's": Cold, Clean, Complex and Connected habitat.  Bull trout decline can be contributed to human activities such as development, logging and agriculture that have degraded its habitat.  Of all salmonids, bull trout are excellent indicators of water quality. Today, water quantity has decreased, water quality has diminished, and introduced, non-native fish like brook and lake trout have competed with bull trout for their native habitat.  Caption info from FWS, photo by Joel Sartore/National Geographic Stock with Wade Fredenberg from National Conservation Training Center.

KEITHINKING:  While reasonable minds may differ, some aspects of this decision can be understood as another instance of an agency's failure to explain itself.  For example, the 9th Circuit opinion says the biological opinion "did not adequately address the effects" of a pollution abatement pond, and failed to explain how continuing downward trends could still lead to the conclusion finding no appreciable negative impact.  But two other portions of the opinion, as excerpted above, deserve further discussion.

If rigidly enforced, the "scope of the action" portions of this decision could be transformational for future ESA consultations in the 9th Circuit.  Unfortunately, the 9th Circuit provided little direction on the proper scope of a consultation, other than to say take a "long view."  But what does that really mean, and what happened to judicial deference?  There is certainly merit to the idea that the consultation on a long-lasting new dam or similar structure, and its effects, should not be minimized by looking forward only five years, but in this case, there was an an equally reasonable argument that physical and operational changes were expected within five years, leading to a new consultation thereafter.  I join Circuit Judge Fisher's dissent on this point.  Moreover, I wonder whether the 9th Circuit fully considered the practical realities of its "think in the long-term" directive.  Consultation must use "the best scientific and commercial data available," but what does that phrase mean when applied to a projection looking 50 years into the future?  My answer: the longer the period of evaluation, the less reliable the conclusions.  Consultations could be reduced to exercises in trend projections, modelling, and even sheer speculation, meaning that every decision can and will be second-guessed.

Judge Fisher did not dissent on another potentially controversial aspect of this decision.  The majority opinion elaborated on an emerging line of cases requiring incidental take to be quantified, and the 9th Circuit emphasized the need to monitor and report incidental take.  In the world of endangered species, however, monitoring and reporting incidental take can be an extraordinarily difficult task.  To begin with, the species are rare; quantifying the death of one small fish can be a whale of a task.  Furthermore, while it might be possible for FWS to determine the number of bull trout caught in the water intake system for a dam, it will prove more difficult (and probably, more expensive) to quantify whether an action "significantly disrupts their breeding behavior by preventing or delaying their spawning migration."  Perhaps this type of evaluation might be possible at a population level -- for example, if the peak of spawning migration were delayed by weeks, then one might conclude that something significant had changed.  But can a FWS biologist really conclude, from that data, that the subject of the consultation (and not hundreds of other factors) caused the delay?  Can that same population level data also be used to calculate a specific numeric level of incidental take of individual fish?  Perhaps, once again, this is merely a case where FWS failed to explain itself.  But the opinion also exposes the challenge created by the judiciary's increasing emphasis on quantified incidental take.

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