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Ninth Circuit Reiterates Prior Decision Invalidating the Biological Opinion for Management of the Columbia River System

By: Paul S. Weiland, Robert D. Thornton
04/30/08

In a decision with far reaching implications for the water supply for California and the west, on April 24, 2008, the United States Court of Appeals for the Ninth Circuit reaffirmed its prior decision that the federal approvals for the management of the dams and reservoirs on the Columbia and Snake Rivers did not comply with the Endangered Species Act (ESA). National Wildlife Federation v. National Marine Fisheries Service, No. 06-35011 (9th Cir. April 24, 2008). The court concluded that the biological opinion issued by the National Marine Fisheries Service (NOAA Fisheries) for the management of the dams and reservoirs did not evaluate properly their effects on several salmon species. Among other reasons, the court concluded that the "no jeopardy" standard under the ESA required the agencies to evaluate impacts on the recovery of listed species in addition to survival. The decision will have significant impacts on a wide variety of public works and private development activities throughout California and the west.

The ESA imposes an obligation on federal agencies to ensure that actions do not jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat. Federal agencies are required to consult with the federal wildlife agency (NOAA Fisheries or the U.S. Fish and Wildlife Service). The wildlife consultation process yields a biological opinion including a determination regarding jeopardy to the species and destruction or adverse modification of its critical habitat.

In 2004, NOAA Fisheries 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. The Ninth Circuit affirmed the district court decision.

The court rejected the position of NOAA Fisheries that the ESA jeopardy standard allows the agency to evaluate the impact of the operation of the dams and reservoirs as measured against the pre-existing "baseline." The Ninth Circuit held that the action only jeopardizes a species and is therefore foreclosed "if it causes some new jeopardy." Slip Op. at 4293. Thus, the court held that an agency "may still take action that removes a species from jeopardy entirely, or that lessens the degree of jeopardy." Id. But "where baseline conditions already jeopardize a species, an agency may not take action that deepens the jeopardy by causing additional harm." Id. In practical terms, this means that where a species is in danger of extinction it may be difficult to undertake any activity that will result in any incremental additional harm to that species.

A second issue the court addressed is whether a jeopardy analysis must consider the extent to which the proposed action affects the recovery of the species. The Ninth Circuit rejected NOAA Fisheries’ interpretation of its own regulations (jointly adopted with the Fish and Wildlife Service), which define "jeopardy." NOAA Fisheries argued that jeopardy occurs when there is an appreciable reduction of both the likelihood of survival and the likelihood of recovery of listed species. The Ninth Circuit held that the text of the regulation is not "reasonably susceptible" to the interpretation advanced by NOAA Fisheries. Id. at 4296. The court held that NOAA Fisheries must analyze effects on recovery noting that "the highly precarious status of the listed fishes at issue raises a substantial possibility that considering recovery impacts could change the jeopardy analysis. Id. at 4298. This second facet of the court’s decision raises the compliance bar by foreclosing actions that reduce the likelihood of recovery of a list species.

The decision ignores the statutory distinction between "jeopardy" and "conservation", sets aside NOAA Fisheries’ interpretation of its own regulation, and incorrectly imposes a requirement to evaluate impacts on recovery under certain circumstances. The Ninth Circuit’s decision adds to the dizzying patchwork of regulatory requirements applicable to agencies and private parties subject to the consultation requirements of the ESA.

For a copy of the decision, click here.

Paul Weiland is the Land Use Practice Group Leader at Nossaman. He 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. 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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