Ninth Circuit Remands No Jeopardy Biological Opinion to Fish and Wildlife Service
Posted in Court Decisions

The United States Court of Appeals for the Ninth Circuit, in Wild Fish Conservancy v. Salazar, issued a decision (pdf) remanding a 2008 biological opinion for the operation of a hatchery for spring-run Chinook salmon to the U.S. Fish and Wildlife Service (Service).  At issue in the biological opinion was the ongoing operation of the hatchery and its effects on the threatened bull trout due to the presence of a number of barriers to fish passage in Icicle Creek, which is in the Columbia River watershed.  The Service issued the biological opinion following intra-agency consultation, since the Service acts as both the action agency (as operator of the hatchery) and consulting agency (as the agency required to issue biological opinions for the species).

Plaintiffs challenged both the biological opinion and the incidental take statement issued by the Service on a number of grounds.  The Ninth Circuit summarized its holding as follows:

[T]he Service committed legal error by limiting the scope of the action to five years; failing to articulate a rational connection between its findings in the 2008 BiOp and its no jeopardy conclusion; and issuing an inadequate incidental take statement. The Hatchery’s reliance on a legally flawed biological opinion was arbitrary and capricious.

With respect to the Service's decision to limit the scope of the action to five years, the Ninth Circuit noted that the hatchery had been operating for 70 years "and is expected to continue operating into the future."  The court held that the Service's failure to take into account a long view of the hatchery's effects was arbitrary and capricious.  With respect to the Service's no jeopardy determination, the Ninth Circuit said it was not possible to square the conclusion that the population trend of bull trout in Icicle Creek is negative with the conclusion that the distribution and abundance of the species in the action area is not likely to change.

  • Paul S. Weiland
    Partner

    Paul Weiland is chair of Nossaman’s Environment & Land Use Group. He focuses his practice on litigation, permitting, and compliance counseling. Paul’s clients include public agencies, publicly regulated utilities, private ...

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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