Wednesday, December 8, 2010

Wild Fish Conservancy v. Salazar

Wild Fish Conservancy v. Salazar - Dec 7: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-35531. The Appeals Court explains that it is "faced once again with the far-reaching effects of federal hydroelectric projects in the Columbia River Basin on the region's native fish species." It says 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. The legal action was brought by the Wild Fish Conservancy (the Conservancy), and 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 Service, 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), as threatened throughout its range. 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. In a split decision, the majority Appeals Court ruled that, "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."
    The majority concluded, "We conclude that the 2008 BiOp is arbitrary and capricious because the Service limited the analysis to a five-year period, failed to articulate a rational connection between the facts found and the conclusions made, and issued an incidental take statement lacking adequate monitoring and reporting requirements. Additionally, the Hatchery violated its substantive duty to ensure that its operations did not jeopardize the continued existence of the bull trout. We reverse and remand to the district court with directions to grant the Conservancy's motion for summary judgment and to grant injunctive relief until the Service complies with its obligations under the ESA."
    The separate, concurring in part and dissenting in part, opinion indicated, "In sum, the Service provided a rational basis for its no jeopardy conclusion. To conclude otherwise requires neglecting the environmental baseline and distrusting agency experts' analysis of the scope and relevance of continued population decline, mitigated by remedial agency action. I therefore disagree with my colleague's conclusion that the Service's analysis in the 2008 BiOp is irrational. For these reasons, I respectfully dissent from Parts II.A, II.B, II.E and III. of the majority opinion, but otherwise concur."
    Access the complete opinion and dissent (click here).

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