On April 9, 2007, the Ninth Circuit Court of Appeals issued a lengthy opinion affirming in its entirety Oregon District Court Judge James Redden’s decision invalidating the National Marine Fisheries Service’s (NOAA Fisheries’) 2004 Biological Opinion (2004 BiOp) under the Endangered Species Act (ESA) for operation of the Federal Columbia River Power System (FCRPS) by the Bureau of Reclamation, Army Corps of Engineers and Bonneville Power Administration ("Action Agencies"). The decision in National Wildlife Federation v. National Marine Fisheries Service, No. 06-35011, was issued simultaneously with an unreported memorandum opinion from the Court similarly upholding Judge Redden’s companion decision in the FCRPS appeal brought by irrigators.
The Court’s opinion upheld Judge Redden’s lower court decision on every issue, concluding that "[a]t its core, the 2004 BiOp amounted to little more than a sleight of hand, manipulating the variables to achieve a ‘no jeopardy’ finding. Statistically speaking, using the 2004 BiOp’s analytical framework, the dead fish were really alive. The ESA requires a more realistic, common sense examination. For these reasons, the district court’s rejection of the BiOp’s jeopardy analysis was entirely correct."
More specifically, the Court issued a series of important rulings that are likely to guide the Services’ (NOAA Fisheries and U.S. Fish and Wildlife Service) jeopardy analyses in the Ninth Circuit and perhaps elsewhere for a significant time to come. First, the Court concluded that Judge Redden correctly determined that the jeopardy analysis of the 2004 BiOp contained structural flaws that rendered it incompatible with the ESA. In particular, the Court agreed that NOAA Fisheries failed to properly evaluate the FCRPS’s effects on listed salmon because it excluded all impacts of the FCRPS it deemed "nondiscretionary," such as ongoing operations for flood control, irrigation and power production.1 The Court conceded that the Action Agencies do not need to consult on the basic existence of the FCRPS dams, but do need to consult on the entirety of the "action," including "all aspects of FCRPS operations, and any dam maintenance or structural modifications" that are within their decisionmaking authority. The panel reasoned that "[t]he very fact that the agencies are unable to define the limits of their discretion reveals that all FCRPS operations are intertwined and subject to discretionary control." The decision clarifies, at a minimum, that the jeopardy analysis must extend to the entirety of an agency’s action and cannot be limited to its discretionary components, and that existing structures are generally not part of the "action" being evaluated. Accordingly, the ruling suggests that the on-going effects of an existing structure on listed species is part of the "environmental baseline" and should not be attributed to a proposed action for purposes of a jeopardy analysis. There will no doubt be wrangling over how to apply this portion of the opinion to the new 2007 BiOp for the FCRPS action, as well as other unrelated federal actions.
Second, the Court rejected NOAA Fisheries’ "comparative" approach to evaluating whether an action is likely to jeopardize listed species, and concluded that the jeopardy standard required an "aggregation" of the effects of the proposed action, together with "baseline effects" and cumulative effects. The Court held that the 2004 BiOp impermissibly failed to incorporate degraded baseline conditions into its jeopardy analysis by insisting on "comparing" the effects of the FCRPS operations against the effects posed by "baseline conditions," and only proceeding with a full jeopardy analysis if it found that the effects of the FCRPS operations are "appreciably" worse than baseline conditions. Responding to the government’s contention that the "aggregation" approach would lead to a situation of "baseline jeopardy" prohibiting all proposed actions — even those found to have overall beneficial effects — the Ninth Circuit clarified that an agency action only "jeopardizes" a species if it causes some "new" jeopardy. Under the aggregation approach, "[a]n agency may still take action that removes a species from jeopardy entirely, or that lessens the degree of jeopardy." However, in a situation where a species is already in peril, an agency may not take an action that will cause "an active change in status" for the worse, that will "tip a species from a state of precarious survival into a state of likely extinction," or that will "deepen the jeopardy by causing additional harm." In general, this opinion will require that, at a minimum, actions include sufficient measures to leave imperiled listed species no worse off.
Third, the Court upheld Judge Redden’s extension of the Ninth Circuit’s 2004 Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004) (Gifford Pinchot) ruling to NOAA Fisheries’ jeopardy analysis. In Gifford Pinchot, the Ninth Circuit held that the ESA requires the Services to address the twin goals of survival and recovery — not just survival — when evaluating an action’s potential effect on a listed species’ critical habitat. For more a more detailed analysis of the Gifford Pinchot decision, click here. In this recent decision, the Court concluded that recovery is also a critical element of the Services’ analysis of impacts to listed species, and must be independently evaluated in conducting a jeopardy analysis. Rejecting NOAA Fisheries’ arguments, the Court stressed that the agency’s analytical omission may not be dismissed as harmless: "the highly precarious status of the listed fishes at issue raises a substantial possibility that considering recovery impacts could change the jeopardy analysis." The Court did recognize, however, that injury to recovery prospects alone would result in a jeopardy finding only in "exceptional circumstances" where there is "significant impairment of recovery efforts or other adverse effects." Moreover, the Court’s reference to "injur[ing] recovery prospects" confirms that an action agency has no duty to improve recovery prospects — it simply may not impair those prospects.
The Court also agreed with Judge Redden’s rejection of NOAA Fisheries’ critical habitat analysis. Specifically, the Court found that NOAA Fisheries failed, under the Gifford Pinchot standard, to adequately evaluate the FCRPS’s impacts to the recovery values of salmon critical habitat. In addition, NOAA Fisheries did not adequately consider the proposed action’s short-term negative effects in the context of the species’ life cycles and migration patterns, instead relying on uncertain long-term improvements to critical habitat to off-set certain short-term degradation. The Court rejected NOAA Fisheries’ reliance on future installation of removable spillway weirs and other structural improvements because they were not certain enough to occur.
Finally, the Court upheld Judge Redden’s remand order in its entirety, including the collaborative remand process, the periodic status conferences, and NOAA Fisheries’ obligation to prepare a "failure report" in the event the action agencies fail to produce a proposed action or a reasonable and prudent alternative that avoids jeopardy. If triggered, the failure report obligates NOAA Fisheries to advise the court of those additional measures, including the breaching of dams, that may be necessary to achieve a valid no-jeopardy finding.
1 The issue of how the scope of an agency’s discretion affects ESA consultation obligations is being considered by the United States Supreme Court, which accepted certiorari in Defenders of Wildlife v. Environmental Protection Agency, 420 F.3d 946 (9th Cir. 2005), reh’g & reh’g en banc denied, 450 F.3d 394 (2006), cert. granted, 127 S.Ct. 853 (Jan. 5, 2007) (No. 06-549). Oral argument in that case is scheduled for April 17, 2007.