ELR Citation: ELR 21384
No(s). 92-973-MA et al (D. Or. Mar 28, 1994)

The court holds that the biological opinion that the National Marine Fisheries Service (NMFS) issued under the Endangered Species Act (ESA) for 1993 hydropower operations in the Federal Columbia River Power System (FCRPS) was arbitrary and capricious and violated ESA §7(a)(2). The court first holds that the NMFS' selection of a 1986-1990 baseline for evaluating whether proposed activities in the system would significantly reduce salmon mortality was arbitrary and capricious. The NMFS failed to consider facts such as drought conditions and low numbers of the species during that period. It also failed to articulate a rational connection between the facts, circumstances, and myriad factors contributing to the decline of the listed species and the choice of a standard by which to measure future success. Instead, the NMFS focused on the system capabilities tending to the status quo rather than stabilization of the species. In addition, the NMFS failed to conduct a reasoned evaluation of all available information when it adopted a standard that was based on an undesirable period of years for the listed salmon. In examining the NMFS' evaluation of the scope of proposed activities, the court rejected bright-line distinctions between the impact of a hydropower dam's existence and its operation and between the dam's impact on species survival and species recovery.

The court next holds that given the high degree of uncertainty in the NMFS' jeopardy analysis, no rational explanation exists for the NMFS to disregard low-range assumptions contained in the models used to analyze the combined effects of proposed actions in the FCRPS. The court notes that the government offered no explanation for its failure to consider species inbreeding and the "extinction vortex"—the increased risks associated with severely low levels of species populations. The court holds unripe the question whether, on remand, the NMFS would find that a 50 percent "confidence" level—the level of probability of reaching a species stability goal—meets ESA §7(a)(2)'s requirement that federal agencies insure that their proposed actions are not likely to jeopardize continued species existence. The court holds that an agency proposal found to result in improved species survival as a matter of law can reduce both the likelihood of survival and recovery so as to constitute jeopardy to a species, because the NMFS does not analyze actions in terms of improved survival. Also, legislative intent indicates that there may be no clear distinction between survival and recovery. To hold that agency action that improves species survival cannot constitute jeopardy could lead to an incongruous result if an increase in a listed species results in a "no jeopardy" finding even though the increased level may be so low as to constitute a continued threat to the species' existence. The court further holds that because it found the NMFS' disregard of low-end assumptions arbitrary and capricious and remanded on this point, the NMFS should consider and address on remand updated results for the state and tribal fisheries agencies' life cycle model. Finally, the court holds moot the Idaho Department of Fish and Game's (IDFG's) request for an injunction barring the U.S. Army Corps of Engineers and the U.S. Bureau of Reclamation from continuing operation of the FCRPS in a manner that jeopardizes the listed Snake River salmon. During oral argument the IDFG agreed that the court should not direct river operations in the interim pending completion of consultations and, thus, the relief sought should be limited to a remand to the agencies.

Counsel for Plaintiff
Larry Echohawk, Attorney General
Attorney General's Office
State House, Boise ID 83720
(208) 334- 2400

Counsel for Defendants
James C. Kilbourne, Charles R. Shockey
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000