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Ninth Circuit Affirms Lower Court Decision to Invalidate Biological Opinion for Management of the Columbia River System

By: Paul S. Weiland, Robert D. Thornton
04/10/07

On April 9, 2007, the United States Court of Appeals for the Ninth Circuit issued a decision that will impede, if not foreclose, many activities that affect species listed under the Endangered Species Act (ESA).  The Ninth Circuit affirmed the decision of the United States District Court for the District of Oregon invalidating the biological opinion issued by the National Marine Fisheries Service (NMFS) under section 7 of the Endangered Species Act (ESA) for the management of the Columbia River system.  National Wildlife Federation v. National Marine Fisheries Service, No. 06-35011 (9th Cir. April 9, 2007).  The decision will have impacts on a wide variety of activities throughout California and the west.  It has major implications for California’s water supply and existing and proposed regional habitat plans.

 

Under section 7(a)(2) of the ESA, federal agencies, in consultation with NMFS (or the Fish and Wildlife Service), must ensure that actions that they authorize, fund, or carry out (including, for example, a decision of the U.S. Army Corps of Engineers to issue a permit under section 404 of the Clean Water Act) do not jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat.  This consultation requirement yields a biological opinion including a determination regarding jeopardy to the species and destruction of adverse modification to its critical habitat.  In the event that the proposed action is not likely to jeopardize the species but may result in incidental take of the species, NMFS may issue an incidental take statement with the biological opinion that authorizes take of listed fish or wildlife.

 

In 2004, NMFS issued a biological opinion that analyzed the effects of the management of the Columbia River system by a number of federal agencies on listed species of salmon and steelhead.  In its decision, the district court invalidated the biological opinion on four grounds; the Ninth Circuit affirmed the district court decision on all grounds.  Three of the four grounds focus on NMFS’s jeopardy analysis under section 7(a)(2) of the ESA, and each of these three will ratchet up the difficulty of successfully completing the consultation process.

 

First, NMFS distinguished between discretionary and non-discretionary actions when conducting its jeopardy analysis in the 2004 biological opinion.  The court rejected this distinction holding that "[a]ll aspects of [Columbia River system] operations, and any dam maintenance or structural modifications, are within the agencies’ discretion, and accordingly are subject to section 7."  Slip Op. at 4017-18.  The United States argued that it must act with due recognition of statutory objectives other than the ESA.  But the Ninth Circuit held that the U.S. has "an affirmative duty to satisfy the ESA’s requirements, as a first priority."  Id at 4018 (emphasis added).

 

Second, NMFS argued that a full jeopardy analysis must be made only if the effects of the action appreciably worsen the condition of the species vis-à-vis the baseline.  In rejecting this approach, the Ninth Circuit held that "[u]nder this approach, a listed species could be gradually destroyed, so long as each step on the path to destruction is sufficiently modest."  Slip Op. at 4020.  In the court’s view, the approach proposed by NMFS would place listed species on a "slow slide into oblivion."  Id.

 

Third, the Ninth Circuit agreed with the district court that NMFS "did not adequately consider the proposed action’s impacts on the listed species’ chances of recovery."  Slip Op. at 4021.  The court rejected NMFS’s interpretation of the joint NMFS and Fish and Wildlife Service ESA regulations defining "jeopardy."  Consistent with the interpretation of the ESA applied by NMFS and the Fish and Wildlife since 1986, NMFS argued that its regulations only bar actions that will both reduce appreciably the likelihood of survival of listed species and recovery of listed species.  The court afforded NMFS no deference.  Instead, the court held that "NMFS must analyze effects on recovery as well as on survival."  Slip Op. at 4024.  The court declined to decide, however, whether the "no jeopardy" standard imposes a substantive obligation to avoid impacts to recovery of listed species.

 

The Ninth Circuit’s decision imposes more exacting standards on NMFS, the Fish and Wildlife Service, and all other federal agencies when they conduct jeopardy analyses.  It is also likely to have a negative impact on the ability of private parties and state and local agencies to conduct activities within endangered species habitat.

 

Paul Weiland counsels clients regarding environmental and land use matters and litigates such matters in trial and appellate courts under a variety of statutes, including the Endangered Species Act and National Environmental Policy Act.  Formerly, he worked in the Law and Policy Section, Environmental and Natural Resources Division of the U.S. Department of Justice.  He can be reached at (949) 833-7800 or pweiland@nossaman.com.

 

Robert Thornton has practiced environmental law for over twenty-eight years.  He represents landowners, resource developers and public agencies on a variety of environmental matters and is nationally recognized as an expert on the Endangered Species Act and regional habitat conservation plans.  He can be reached at (949) 833-7800 or rthornton@nossaman.com.

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