ELR Citation: 55 ELR 20011
No(s). 6:21-cv-00034-AA (D. Or. Jan 21, 2025) (Aiken, J.)

A district court granted in part and denied in part summary judgment for an environmental group in a lawsuit concerning NMFS' approval of a management plan proposed by the Oregon Department of Fish and Wildlife for releasing hatchery-raised fish into the Upper Willamette River. The group argued NMFS violated the ESA by issuing an unlawful biological opinion (BiOp) finding the plan did not jeopardize the winter steelhead or destroy or adversely modify their critical habitat. The court found the group failed to show how the reports it cited were the best available data NMFS should have relied on when issuing the BiOp or that the BiOp cited to incorrect data; but concluded the BiOp did not appropriately consider the effect on winter steelhead eggs. It further found the agency's conclusion that the effect of competition from hatchery steelhead on winter steelhead was "low" was not supported by the record, that the agency did not directly address or resolve the issue of winter steelhead being displaced by hatchery fish, and that its explanation with respect to climate change effects failed to evaluate the consequences to winter steelhead of projected worsening conditions. The group also argued NMFS violated NEPA by issuing an unlawful EIS and record of decision to approve the plan, but the court found that the five alternatives considered complied with NMFS' obligations under NEPA to consider a reasonable range of alternatives. It granted in part and denied in part summary judgment for the group, granted in part and denied in part NMFS' cross-motion, and granted the parties leave to submit briefing as to the appropriate remedy.