Peter M. K. Frost (OSB #911843)
Sangye-Ince Johannsen (OSB #193827)
Western Environmental Law Center 120 Shelton McMurphey Blvd., Suite 340 Eugene, Oregon 97401
Tel: 541-359-3238 / 541-778-6626 frost@westernlaw.org / sangyeij@westernlaw.org
Lindsey Hutchison (OSB #214690)
Willamette Riverkeeper 1210 Center Street
Oregon City, Oregon 97045
Tel: 503-223-6418 lindsey@willametteriverkeeper.org
Robert Kirschner Jr. (OSB #074399)
The Conservation Angler 3241 N.E. 73rd Avenue Portland, Oregon 97213
Tel: 503-894-0439 rob@theconservationangler.org
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT DISTRICT OF OREGON EUGENE DIVISION
WILLAMETTE RIVERKEEPER et al.,
Plaintiffs, vs.
NAT’L MARINE FISHERIES SERVICE et al., Defendants, and
OREGON DEP’T OF FISH AND WILDLIFE, Defendant-Intervenor.
Case No.: 6:21-cv-34-AA
PLAINTIFFS’ OPPOSITION TO CROSS-MOTIONS FOR SUMMARY JUDGMENT, AND REPLY
Table of Authorities.
Cases:
Armstrong v. Hawaiian Airlines, Inc., No. CV 18-00326 ACK-WRP, 2019 WL 13162437 (D. Haw. Oct. 29, 2019) ......................5
Barnum Timber Co. v. U.S. E.P.A., 633 F.3d 894 (9th Cir. 2011) ...............................................................................................2
Bennett v. Spear, 520 U.S. 154 (1997) 3,
Cal. Cmtys. Against Toxics v. U.S. E.P.A., 688 F.3d 989 (9th Cir. 2012) 34–35
Ctr. for Biological Diversity v. BLM , 422 F. Supp. 2d 1115 (N.D. Cal. 2006) .............................................................................14
Ctr. for Biological Diversity v. Ross, 349 F. Supp. 3d 38 (D.D.C. 2018) .......................................................................................5
Ctr. for Env’t. Health v. Vilsack, No. 15-cv-01690-JSC, 2016 WL 3383954 (N.D. Cal. June 20, 2016) 34–35
Conner v. Burford, 848 F.2d 1441 (9th Cir. 1988) 14, 27
Cook Inletkeeper v. Raimondo, 541 F. Supp. 3d 987 (D. Alaska 2021) ..............................................................................35
Cottonwood Envt. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075 (9th Cir. 2015) ...........................................................................................32
Defs. of Wildlife v. U.S. Army Corps of Eng’rs, No. CV-15-14-GF-BMM, 2018 WL 3510534 (D. Mont. July 20, 2018) 34
Ecology Ctr. v. Castaneda, 574 F.3d 652 (9th Cir. 2009) .............................................................................................26
Env’t Def. Ctr. v. Bureau of Ocean Energy Mgmt., 36 F.4th 850 (9th Cir. 2022) ..............................................................................................33
Friends of the Clearwater v. Dombeck, 222 F.3d 552 (9th Cir. 2000) .......................................................................................33–34
Plaintiffs’ Opposition to Cross-Motions for Summary Judgment, and Reply, No. 6:21-cv-34-AA iii
Goodman v. Staples the Off. Superstore, LLC, 644 F.3d 817 (9th Cir. 2011) ...........................................................................................5–6
Graves v. Arpaio, 623 F.3d 1043 (9th Cir. 2010) .............................................................................................6
Helena Hunters v. Marten, 470 F. Supp. 3d 1151 (D. Mont. 2020) ..............................................................................35
Motor Vehicle Mfrs. Ass’n. of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) .............................................................................................................19
Nat’l Res. Def. Council v. Haaland, 102 F.4th 1045 (9th Cir. 2024) 16
Nat. Res. Def. Council v. Kempthorne, 506 F. Supp. 2d 322 (E.D. Cal. 2007)..................................................................................6
Nat’l Wildlife Fed’n v. NMFS, 524 F.3d 917 (9th Cir. 2008) .......................................................................................11, 29
Nat’l Wildlife Federation v. NMFS, 839 F. Supp. 2d 1117 (D. Or. 2011)
Nat’l Wildlife Fed’n v. NMFS, 184 F. Supp. 3d 861 (D. Or. 2016)
Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846 (9th Cir. 2005) ...............................................................................................2
Or. Nat. Desert Ass’n v. Jewell, 840 F.3d 562 (9th Cir. 2016) .............................................................................................34
Pac. Coast Fed’n of Fishermen’s Assoc. v. U.S. Bureau of Reclamation, 426 F.3d 1082 (9th Cir. 2005) 12–13, 28
Pollinator Stewardship Council v. E.P.A., 806 F.3d 520 (9th Cir. 2015) 34
Pyramid Lake Paiute Tribe of Indians v. U.S. Dep’t of Navy, 898 F.2d 1410 (9th Cir. 1990) .............................................................................................3
San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581 (9th Cir. 2014) .............................................................................................26
Se. Alaska Conservation Council v. U.S. Army Corps of Eng’rs, 486 F.3d 638 (9th Cir. 2007) .............................................................................................34
Plaintiffs’ Opposition to Cross-Motions for Summary Judgment, and Reply, No. 6:21-cv-34-AA
Watersheds Project v. Abbey, 719 F.3d 1035 (9th Cir. 2013) ...........................................................................................34 W. Watersheds Project v. McKay, No. 22-35706, 2023 WL 7042541 (9th Cir. Oct. 26, 2023)
Federal Register Notices:
Endangered and Threatened Wildlife and Plants, Regulations for Interagency Cooperation, 84 Fed. Reg. 44,976 (Aug. 27, 2019)....................................................................................7–8
Endangered and Threatened Species: Threatened Status for Two ESUs of Steelhead in Washington and Oregon, 64 Fed. Reg. 14517 (March 25, 1999) ........................................9
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Plaintiffs Willamette Riverkeeper et al. (“Riverkeeper”) hereby respectfully file this opposition to the cross-motions for summary judgment filed by the Corps and FWS (ECF No. 58) and ODFW (ECF No. 59), and reply to their opposition to its motion for summary judgment.
Argument
A This Court has Jurisdiction Over All of Riverkeeper’s Claims
1. Riverkeeper has Standing.
The Corps and FWS assert Riverkeeper lacks standing on one of the three required bases (= injury, causation, redressability): they assert no causation exists, because they do not “fund” producing or releasing summer steelhead into the Santiam River basin. Feds’ Mot. 10-11.
However, funding is not the only prerequisite for a causal role in Riverkeeper’s (undisputed) injuries. ESA regulations define federal agency “action” under ESA Section 7(a)(2) to include “the granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid,” and also actions that “directly or indirectly caus[e] modifications to the land, water, or air.” 50 C.F.R. § 402.02(c)-(d). Here, the Corps’ actions meet both criteria.
First, the Corps admits it owns the land on which the South Santiam hatchery was built, owns buildings or facilities within the South Santiam hatchery, and “has executed licenses, special use permits or other instruments that allow ODFW to use land, buildings or facilities, or conduct operations, at the South Santiam hatchery.” Second Amd. Cmpl., ECF No. 46 at ¶ 33; Ds’ Answer, ECF No. 56 at ¶ 33. The Corps admits it owns the Foster Fish Facility, and has executed licenses, special use permits, or other instruments to allow ODFW to use the facility. Id., Second Amd. Cmpl., ECF. No. 46 at ¶ 34, Ds’ Answer, ECF No. 56 at ¶ 34. The Corps admits it owns the land on which the Minto Fish Facility was built, owns buildings or facilities there, and has entered into contracts, leases, special use permits, or other instruments to allow ODFW to use facilities, or conduct operations at, that facility. Id., Second Amd. Cmpl., ECF No. 46 at ¶ 35, Ds’ Answer, ECF No. 56 at ¶ 35. In other words, the Corps admits it owns and has leased to ODFW physical infrastructure that enables the trapping of adult summer steelhead
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By contrast, it appears FWS only funds operations at the Roaring River Hatchery (ODFW owns the hatchery), and summer steelhead raised there are released into the Siletz River in the Coast Range, FWS AR 89, and into the mainstem Willamette in Eugene to “create a fishery where none historically existed.” USACE AR 6598 n.1. However, neither of these two areas are within the winter steelhead DPS. Accordingly, FWS is correct it does not have a causal role in Riverkeeper’s injuries, and Riverkeeper does not have standing to pursue claims against FWS.
2. Riverkeeper Properly Makes a Substantive Jeopardy Claim
1 The fact that ODFW has a causal role too does not diminish that causation exists as to the Corps’ role. Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 860 (9th Cir. 2005) (causation exists even though other actors may contribute to increase in ship tanker traffic and risk of oil spills); Barnum Timber Co. v. U.S. E.P.A., 633 F.3d 894, 901 (9th Cir. 2011) (a plaintiff “need not eliminate any other contributing causes to establish its standing”); WildEarth Guardians v. U.S. Dep’t of Agric , 795 F.3d 1148, 1157 (9th Cir. 2015) ("So long as a defendant is at least partially causing the alleged injury, a plaintiff may sue that defendant, even if the defendant is just one of multiple causes of the plaintiff's injury.")
2 Further, the Corps’ role in facilitating the capture, breeding, and release of summer steelhead into the Santiam River basin means it also “directly or indirectly caus[es] modifications to the land, water, or air,” 50 C.F.R. § 402.02(d), given the ecological effects these releases have not only on winter steelhead, but also other riverine resources. NOAA AR 14448-49 (noting that hatchery fish spawn in the wild and “contribute marine[-]derived nutrients to the environment,” and “thousands” of carcasses of adult summer steelhead collected in excess of broodstock needs have been outplanted into rivers).
Plaintiffs’ Opposition to Cross-Motions for Summary Judgment, and Reply, No. 6:21-cv-34-AA 2 returning to the Santiam River basin, breeding of hatchery summer steelhead, and release of summer steelhead smolts into the North and South Santiam River basins Accordingly, the Corps has a significant role in enabling and facilitating the actions that injure Riverkeeper’s members.1 Indeed, the BiOp states the Corps consulted with NMFS as to how its actions related to summer steelhead affect winter steelhead. NOAA AR 2005 (“The federal action of the Corps is its funding and operation of the hatchery programs for Chinook salmon, summer steelhead, and rainbow trout in the Upper Willamette River Basin, of which the Corps is required to consult with NMFS under section 7 of the ESA.”) (emphases added).2
The parties agree the Corps has a substantive duty under Section 7(a)(2) to not jeopardize winter steelhead, which Riverkeeper alleges the Corps has violated. Second Amd. Cmpl., ECF No. 46 at ¶ 45. The Corps and ODFW assert Riverkeeper waived its jeopardy claim because it does not allege the Corps unlawfully relied on the BiOp. Feds’ Mot. 11-12; ODFW Mot. 27. To establish a substantive jeopardy violation, Riverkeeper cannot “simply perceive deficiencies in the BiOp” as the sole evidentiary basis to do so. Defs. of Wildlife v. U.S. Army Corps of Eng’rs, No. CV-15-14-GF-BMM, 2018 WL 3510534, at *10 (D. Mont. July 20, 2018) (citing Pyramid Lake Paiute Tribe of Indians v. U.S. Dep’t of Navy, 898 F.2d 1410, 1415 (9th Cir. 1990)). But here, Riverkeeper does not simply cite “deficiencies in the BiOp” to seek to prove its jeopardy claim. By contrast, Riverkeeper specifically stated: “The administrative records prove summer steelhead jeopardize winter steelhead.” Ps’ Mot 36-38. In its motion and in this brief below, Riverkeeper cites evidence both in and apart from the BiOp, and from two different agency administrative records (one of which did not prepare the BiOp), to prove its jeopardy claim. Id. Riverkeeper has properly pled and argued a jeopardy claim, independent of whether the Court chooses to reach and decide the claim.
3. Riverkeeper Properly Alleges Claims Challenging the BiOp.
NMFS asserts that because Riverkeeper amended its pleading to drop an “APA claim” it no longer has “a cognizable basis to challenge NMFS’s BiOp.” Feds’ Mot. 13. However, in its second amended complaint, Riverkeeper alleges: “The BiOp is final agency action subject to judicial review under the APA. 5 U.S.C. §§ 704, 702; Bennett v. Spear, 520 U.S. 154, 178 (1997).” Second Amd. Cmpl., ECF No. 46 at ¶ 5 Riverkeeper also alleges: “The BiOp is also arbitrary, capricious, and not in accordance with law.” Id. at ¶ 47. To the extent Riverkeeper must invoke and specify the APA to challenge the BiOp, it has done so.
Second, in its operative complaint, Riverkeeper changed the subheading for its claim challenging the sufficiency of the BiOp from the “APA” to the “ESA,” because the ESA is the substantive law the Court considers to determine whether the BiOp is lawful. See, e.g., Bennett,
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520 U.S. at 175 (looking to “the substantive provisions of the ESA, the alleged violations of which serve as the gravamen of the complaint,” to determine if the plaintiffs’ injuries are within the “zone of interests.’”). By contrast, as the Court recognized in its order allowing discovery, the APA provides the standard of review for that claim. Opinion & Order, ECF No. 36 at 3 (June 26, 2023). But the Court does not apply the APA standard of review in a vaccum; to determine whether the BiOp is “arbitrary, capricious, … or not in accordance with law” under the APA standard of review, the Court considers the legal requirements of the ESA and its regulations. Wild Fish Conservancy v. Salazar, 628 F.3d 513, 521-532 (9th Cir. 2010) (considering ESA requirements to determine whether a BiOp is arbitrary, capricious, or not in accordance with law).
NMFS continues that Bennett v. Spear stands for the proposition that “biological opinions arise under the APA, not under the ESA citizen suit provision.” Feds’ Mot 13. “Arise” is not a legal term. The Court has jurisdiction to consider challenges to a BiOp based on federal question jurisdiction. 28 U.S.C. § 1331. Regardless, Riverkeeper has pled in the alternative that the Court has both federal question and citizen suit provision jurisdiction to consider all of its claims
Second Amd. Cmpl., ECF No. 46 at ¶ 4. Riverkeeper has properly alleged the Court has jurisdiction to review under the APA whether the BiOp complies with the ESA.
B. The Court Should Strike ODFW’s Declarations
Pursuant to LR 56-1(b), Riverkeeper moves to strike the Declaration of Ryan Couture, ECF No. 60, and the Declaration of Shaun Clements, ECF No. 61, filed by ODFW to support its arguments on the merits in its cross-motion for summary judgment. ECF No. 59.3 ODFW did not comply with Fed. R. Civ. P. 26, and disclose the identity of these declarants, or subject them to discovery; nor did ODFW move the Court to consider these declarants’ testimony as permissible extra-record evidence. For both reasons the Court should strike the declarations.
3 Pursuant to LR 56-1(b), counsel for Riverkeeper conferred under LR 7-1(a) with counsel for ODFW, and it opposes the motion to strike.
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In its motion, ODFW cites and relies on these declarants’ testimony primarily to oppose Riverkeeper’s claim that hatchery summer steelhead jeopardize winter steelhead. ODFW Mot. 28. This is an ESA citizen suit claim. Ctr. for Biological Diversity v. Ross, 349 F. Supp. 3d 38, 43-45 (D.D.C. 2018). The Court ordered that its review of claims under the ESA citizen suit provision is not limited to the Administrative Record. Opinion & Order, ECF No. 36 at 6 The Court also ordered that the “parties shall propose a schedule for cross-motions for summary judgment within 14 days of . . . the Court's resolution on any motions related to discovery, and the completion of any allowed discovery.” Order, ECF No. 19 (May 17, 2021).
After the Court denied Federal Defendants’ motion to limit review to the Administrative Record, they responded to Riverkeeper’s discovery requests. Second Declaration of Peter M. K. Frost ¶ 1 Further, on December 7, 2023, Riverkeeper served discovery requests to ODFW, and ODFW responded on February 29, 2024. Id But neither Federal Defendants nor ODFW served any discovery. Id. Further, ODFW never made any initial disclosures under FRCP 26(a)(1)(A), nor expert disclosures under FRCP 26(a)(2)(A) or (C). Id. ¶ 2.4
Mr. Clements and Mr. Couture that each declare he is an ODFW employee. Couture Decl. ¶ 1; Clements Decl. ¶ 1. Assuming their duties as ODFW employees do not “regularly involve giving expert testimony,” ODFW must still disclose their identities, and ODFW must serve a disclosure from each that states (1) the subject matter on which the witness is expected to present evidence and (2) a summary of the facts and opinions to which the witness is expected to testify. FRCP 26(a)(2)(C). An expert who is not required to prepare an expert report must still be disclosed. Armstrong v. Hawaiian Airlines, Inc., No. CV 18-00326 ACK-WRP, 2019 WL 13162437, at *6 (D. Haw. Oct. 29, 2019). “When a party fails to make the disclosures required by Rule 26(a), the party is not allowed to use the witness to supply evidence at trial unless it establishes that the failure was substantially justified or is harmless.” Goodman v. Staples the
4 Among the parties, Riverkeeper alone served intial disclosures under Rule 26(a)(1)(A) Second Frost Decl. ¶ 2.
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Off Superstore, LLC, 644 F.3d 817, 826 (9th Cir. 2011) (citing FRCP 37(c)(1)). Here, ODFW cannot prove its failure to disclose the identities of Mr. Couture and Mr. Clements and the subject matter of their facts and opinions is substantially justified or is harmless. Counsel for ODFW is well-aware of the rules of discovery; on December 12, 2023, counsel sought an extension from Riverkeeper’s counsel to respond to its discovery request (which he agreed to), and also sought and obtained a protective order related to its response. Second Frost Decl. ¶ 4. Order, ECF No. 41 (Feb. 13, 2024) (granting protective order). Moreover, Mr. Clements’ and Mr. Couture’s testimony is not harmless, as they address language in the BiOp and ITS Riverkeeper alleges is unlawfully ambiguous and supports its jeopardy claim.5 The Court should strike their testimony.6
C The Corps Has No Duty to Fund or Facilitate the Summer Steelhead Program
It is undisputed ODFW created the hatchery summer steelhead run in the UWR for the first time in the 1960s, using non-native stock from Washington because, as ODFW explained: “Native winter steelhead had not provided the angling opportunity desired by sportsmen and fisheries managers, since they spawned and were essentially gone from the system by late May… By the time dependable weather rolled around, the winter fish were gone. The creation of a healthy summer run was intended to expand the duration of the steelhead angling season
5 Mr. Couture and Mr. Clements also testify as to “current evidence,” meaning their view of events that postdate the BiOp and EIS, to assert their views of current hatchery “impacts.” ODFW Mot. 8. Their testimony is inadmissible because of the Rule 26 violation, because Riverkeeper never had a chance to review them or prove otherwise, and because their assertions are irrelevant to the factual and legal premises for the BiOp and EIS, which were issued in 2019. See Nat. Res. Def. Council v. Kempthorne, 506 F. Supp. 2d 322, 343 (E.D. Cal. 2007) (granting in part the plaintiff’s motion to strike declaration on the ground that testimony did not address “technical nor complex” matters but instead were “post hoc rationalizations” related to a BiOp that “cannot serve as a sufficient predicate for agency action.”).
6 Because ODFW did not move or prove in its motion/opposition that these declarants’ testimony is admissible under any exception for extra-record evidence for Riverkeeper’s other claims, ODFW cannot do so on reply Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010) (argument not raised in opening brief is waived).
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through the summer and fall and, in fact, that has happened.” USACE AR 792. In other words, ODFW did not justify creating a new run of non-native steelhead in the UWR because there were too few winter steelhead available for fishing due to impacts of the WVP. ODFW created the summer run simply to “expand the duration of the steelhead angling season,” into drier months in the valley when more “dependable weather rolled around.” Id
There is also no dispute summer steelhead are “not native” to the UWR, USACE AR 4455, and were not part of the “present fish population” when Congress authorized the WVP. Declaration of Peter M. K. Frost, ECF No. 50, Exh. C at 3, # 5. In turn, as the Corps previously admitted, and does not dispute in its motion, it has no duty to “fund or facilitate” summer steelhead releases into winter steelhead habitat. Id., Exh. B at 10, ## 7 & 8. That is likely why the Corps is now not funding the program. USACE AR 6583. By contrast, ODFW asserts the Corps has a mitigation “obligation” based on H.R. Doc. No. 81-531 that does not “limit” the “propagation of specific species of fish.” ODFW Mot. 3-4 (emphasis added). But the report refers to “maintain[ing] runs of anadromous fish.” Id. “Maintain” means “keep in an existing state [or] preserve from failure or decline.” Maintain, MERRIAM-WEBSTER DICTIONARY (online ed. 2024). One cannot “maintain” what does not exist.
In the end, the correct legal framework is this: the Corps has the duty to mitigate for fishing opportunities lost because of the WVP, but that duty does not require the Corps to fund or facilitate the summer steelhead program. However, the Corps may choose to do so and, here, it did, exercising its discretion and leasing its facilities to ODFW to operate the program.
D The BiOp is Unlawful
1. The Environmental Baseline.
The parties agree the BiOp must detail the “environmental baseline,” meaning the “condition of the listed species or its designated critical habitat in the action area, without the consequences to the listed species or designated critical habitat caused by the proposed action.”
50 C.F.R. § 402.02. This means the BiOp must evaluate the “ consequences attributable to
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ongoing activities and the existence of [federal] agency facilities” that affect winter steelhead.
Endangered and Threatened Wildlife and Plants, Regulations for Interagency Cooperation, 84 Fed. Reg. 44,976, 44,995 (Aug. 27, 2019) (emphasis added). Here, the BiOp simply fails to fully evaluate the consequences to winter steelhead of the unfortunately significantly degraded conditions in the winter steelhead DPS.
For the North and South Santiam Rivers, it begins with Big Cliff and Foster Dams; together they block winter steelhead from 33% of historic habitat, NOAA AR 2809, including “the best spawning and rearing habitat [] located upstream of the dams.” FWS AR 2494. The dams also have a “profound effect” downstream, because they have “reduced the amount and complexity of juvenile rearing habitat” and “significantly reduced” large woody debris, which is “essential to the creation and maintenance of habitat” for winter steelhead. NOAA AR 2050. As a result, habitat conditions for winter steelhead in the Santiam basin are “poor.” NOAA AR 2054. The mainstem rivers and many tributaries are “water quality limited” for both temperature and dissolved oxygen. NOAA AR 14382. They also lack riparian shade, and adjacent lands have “poor agricultural and forestry practices.” NOAA AR 14379–80. NMFS noted in 2015 that “[m]uch of the accessible habitat [for winter steelhead] . . . in the . . . North and South Santiam Rivers is degraded and under continued development pressure.” NOAA AR 13928.
NMFS defends first by presenting a map it asserts represents winter steelhead critical habitat (in blue), and asserts Riverkeeper “misleadingly” focuses on the North and South Santiam River instead of the “entire geographic area within the Willamette River basin where winter steelhead live or spawn.” Feds’ Mot. 14-15 (citing NOAA AR 2174). The map is partly irrelevant to the environmental baseline, because it includes areas (in yellow) of winter and summer steelhead interaction upstream of the Calapooia that are not within the winter steelhead DPS, and areas (in blue) above Big Cliff and Foster Dams winter steelhead cannot currently reach on their own Id More important, Riverkeeper focuses on the North and South Santiam below the dams, because they matter most as to the survival and recovery of the DPS as a whole:
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Having said that, conditions are poor too for the 30% of winter steelhead in the DPS that inhabit the Molalla and Calapooia. For the Molalla, the Recovery Plan identifies “[h]igh erosion and destablizied streambanks [that] release excessive sediements, causing turbid water and silt deposits that harm aquatic life and violate water quality standards.” NOAA SUP AR 658-59. For the Calapooia, there are similar detrimental impacts, as well as “numerous unscreened small diversions” that impair winter steelhead habitat. Id at 680. Indeed, winter steelhead in the Calapooia River have a greater than 99% probability of quasi-extinction within 100 years.
NOAA AR 2038.
7 ODFW asserts “[m]ost winter steelhead do not, in fact, return to the South and North Santiam basins.” ODFW Mot. 23 (citing Jepson (2015)). Jepson counted radio-tagged winter steelhead returns to the Willamette River basin as a whole, including downstream of Willamette Falls (the Clackamas River) and upstream of the southern boundary of the DPS (the McKenzie, Coast Fork Willamette, and Middle Fork Willamette Rivers, and Fall Creek). NOAA AR 8135. By contrast, counting winter steelhead returns to the DPS alone, Jepson reports 132 winter steelhead returned to the Molalla, North Santiam, South Santiam, mainstem Santiam, and Calapooia Rivers, while 11 returned to the Yamhill and Tualatin Rivers and Rickreall Creek on the west-side of the valley. Id. Excluding the west-side returns, 96 of 132 adult winter steelhead returned to the Santiam River basin, which equals roughly 72% of radio-tagged returns. Cf Endangered and Threatened Species: Threatened Status for Two ESUs of Steelhead in Washington and Oregon, 64 Fed. Reg. 14517, 14521 (March 25, 1999) ("Based on limited genetic analysis, the recent samples from westside tributaries do not appear to reflect populations derived from this ESU . . . [however], they warrant inclusion in this ESU at this time, although some uncertainty remains regarding this conclusion.”).
8 As Riverkeeper noted in its motion, a “core” population “historically represented the centers of abundance and productivity for a major population group,” while a “genetic legacy” population “exhibit[s] important life history characteristics no longer found throughout the” listed area. NOAA AR 4259.
Plaintiffs’ Opposition to Cross-Motions for Summary Judgment, and Reply, No. 6:21-cv-34-AA 9 roughly 70% of winter steelhead within the DPS (excluding west-side tributaries) inhabit the Santiam basin NOAA AR 10954 7 Further within the DPS, the populations within these two rivers are the only two designated as “core” and “genetic legacy” populations. NOAA AR 4257.8 In other words, the consequences of significantly degraded fish habitat below the dams in these two rivers has the most significant consequences as to the DPS.
NMFS asserts the BiOp fully evaluates the significantly degraded habitat accessible to winter steelhead, including how it affects incubating egg, rearing juveniles, and adults. Feds’ Mot. 16. As to incubating eggs, the BiOp is wrong that “[m]ost of the incubating eggs [of winter steelhead] are not exposed to unnatural conditions” on the ground that winter steelhead spawn in tributaries. NOAA AR 2055. Winter steelhead do spawn in tributaries, but Mapes (2016) found that in the South Santiam basin that 35% of adults spawned in the mainstem. NOAA AR 10968. Indeed, a spawning survey in 2014 in the mainstem North Santiam found 50 winter steelhead redds (nests) from Packsaddle Park downstream to Mill City. USACE AR 6606. And the entire DPS has poor water quality. NOAA AR 14382 (map). But even if winter steelhead eggs incubate only in tributaries, NMFS has no response to the fact that important spawning tributaries, including such as Stout Creek in the North Santiam basin, and Thomas, Hamilton, and Crabtree Creeks in the South Santiam basin, are impaired due to high temperatures, a lack of dissolved oxygen, or both. Id. 9 Finally, it does not matter that spring Chinook eggs may fare worse or better under these conditions. Cf. Feds’ Mot. 16 (citing NOAA AR 2055). As for winter steelhead, the environmental baseline must detail conditions for them, to properly gauge the effects of releasing summer steelhead into the same habitat.
For juvenile winter steelhead that rear “in headwater tributaries and upper portions of the subbasins for one to four years (most often two years),” it is true that in those areas, they are “susceptible to the same threats and limiting factors” as juvenile spring Chinook. NOAA AR 2060. But again, the BiOp includes one sentence noting that downstream of the dams and in the other basins where winter juvenile winter steelhead rear, “most of the historic rearing habitat in side channels, backwater sloughs, and wetlands has been lost,” and “[t]he development of the riparian area, streambank armoring, and disconnection of side channels has substantially reduced
9 ODFW asserts it identifies other tributaries as “key spawning” areas, ODFW Mot. 12 (citation should be USACE AR 6658-59), but many of them, including Thomas and Wiley Creeks in the South Santiam basin, and Elkhorn Creek in the North Santiam basin, are designated as water quality limited for temperature as well. NOAA AR SUP 422, 409.
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the[ir] rearing capacity” in the mainstem. Id This is all true, but this sentence does nothing to address the consequences to juvenile winter steelhead of these degraded conditions
Finally, the BiOp fails to discuss the impacts of degraded habitat conditions for adult winters steelhead. The BiOp notes “adult freshwater residence” matters considerably for the survival and recovery of spring Chinook, noting that some areas “experience 80% loss of [adult spring Chinook] adults prior to spawning” due to “[p]oor water conditions, presences of high pathogen loads in the federal reservoirs, and disease outbreaks from overcrowding below the dams.” NOAA AR 2031. Winter steelhead co-occur in the same habitat. But the BiOp never discloses or considers how these degraded conditions affect pre-spawning mortality for adult winter steelhead, or those that are iteroparous.
In sum, the description of the environmental baseline for the winter steelhead DPS fails to properly set the stage as the foundation for the next, additive considerations to determine whether releasing summer steelhead into the same habitat jeopardizes winter steelhead. The BiOp fails to evaluate and disclose how the winter steelhead would fare independently under the degraded environmental baseline, irrespective of adding summer steelhead into the same habitat Nat’l Wildlife Fed’n v. NMFS, 524 F.3d 917, 930 (9th Cir. 2008).
2. Summer Steelhead Population Data.
Riverkeeper asserts the BiOp fails to provide a “detailed discussion of the effects of the action on [the] listed species,” 50 C.F.R. § 402.14(h)(iii), because it fails to consider how many adult summer steelhead return each year to the Santiam River basin and remain in the rivers to interact with winter steelhead. There is no dispute that the summer steelhead HGMP target is for 14,880 summer steelhead return to Willamette Falls annually, NOAA AR 6589, nor that the BiOp, citing Jepson (2015), states that “[n]early all summer steelhead returned to the rivers where they were released . . . .” NOAA AR 2126. But many adult summer steelhead are not caught by anglers, nor do they return to fish traps; they remain in the rivers. NOAA AR 14448 (“collection efficiency [of returned summer steelhead] at the hatchery facilities is not 100 percent
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NMFS focuses on the North Santiam, which includes fish counting stations at Lower and Upper Bennett Dams on either side of Stayton Island near Stayton, and a newly-improved fish collection facility at the Minto Fish Facility. NOAA AR 2157. The BiOp states for 2016 to 2018, 752, 52, and 199 summer steelhead were counted at the Bennett dams and not collected at Minto.
NOAA AR 2157. Riverkeeper does not have different data.
The South Santiam is different. It does not have a fish counting facility near its confluence with the mainstem Santiam, and though the Foster Fish Collection Facility below Foster Dam was upgraded in February, 2014, data in the record states that for the years 2014 to 2017, after calculating fishing catch, returns to the Foster Fish Collection Facility, and assuming a natural mortality of 10%, a range of 37 to 1,947 summer steelhead adults remained in the South Santiam River annually and were “unaccounted for.” NOAA AR 17983.10 NMFS asserts these data are misleading because they predate a time period “before smolts were acclimated to the location of the fish traps prior to their release.” Feds’ Mot. 32. However, for the South Santiam, summer steelhead are spawned, acclimated, and released from the Santiam Hatchery at river mile 38.5, and returning adults collected at the Foster Fish Facility, which is across the river at the same river mile. NOAA AR 2008. In other words, they are spawned and released in the same location they are collected, so these data do reflect smolts acclimated to the location of the fish traps before their release.
In the end, the issue is whether the BiOp, which is required to consider and apply the best available science, fully evaluates these data in order to determine fully the effects of summer steelhead on winter steelhead. Pac. Coast Fed’n of Fishermen’s Assoc. v. U.S. Bureau of
10 These data are best viewed in the Excel document in the NOAA AR in the folder “Documents” entitled “gene flow worksheet 3-28-18” and, within it, under the tab “PHOS” at the bottom of the worksheet. NMFS published the worksheet as a PDF, and included it in the record at NOAA AR 17970–18056, but it is largely unreadable.
Plaintiffs’ Opposition to Cross-Motions for Summary Judgment, and Reply, No. 6:21-cv-34-AA 12 and not all excess hatchery fish are harvested.”); USACE AR 677 (same). The issue is whether the BiOp fully accounts for these summer steelhead.
Reclamation, 426 F.3d 1082, 1091 (9th Cir. 2005) (“an agency's action must be upheld, if at all, on the basis articulated by the agency”). It is meaningful that 752 summer steelhead adults remained in the North Santiam in 2016, and 1,947 remained in the South Santiam in 2014. NMFS fails to identify anywhere in the BiOp where the data of remaining adult summer steelhead are considered and factored into the analysis of how this species affects winter steelhead.
3. Residual Summer Steelhead.
There is no dispute residual summer steelhead can harm winter steelhead via predation, competition, and interbreeding. NOAA AR 14475. The Recovery Plan states that competition with and predation by residual summer steelhead are limiting factors for winter steelhead.
NOAA AR SUP 669-70, 741. In turn, the BiOp states that “[c]ommonly, the largest [hatchery] fish are most likely to residualize and mature sexually while residing in freshwater.” NOAA AR 2152. The parties’ dispute is about the best available science as to rates of summer steelhead residualism in the Santiam basin and, independently, whether the BiOp adequately considers and addresses the effects of residual summer steelhead on winter steelhead.
a. The Best Available Science Related to Residualism.
There is one published report of summer steelhead residualism specific to the Santiam River basin: Harnish (2014), which the BiOp cites and relies on. NOAA AR 2152. Harnish finds radio-tagged hatchery summer steelhead residualize in the South Santiam River at an “absolute minimum” rate of 12.8%. NOAA AR SUP 1569. Having said that, NMFS is correct Harnish also states they “recognize there may have been issues with the representativeness of the radio-tagged fish to the general hatchery population.” NOAA AR SUP 1607. Accordingly, NMFS asserts it “reasonably concluded that residualism rates for hatchery summer steelhead [are] probably less than 10%.” NOAA AR 2152.11
11 In its motion, NMFS asserts Harnish “does not apply to the general hatchery summer steelhead population.” Feds’ Mot. 33. The BiOp does not say that, and neither does Harnish.
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For its part, ODFW criticizes Harnish, asserting it commented to the Corps that Harnish’s findings are based on “methodological errors,” while also conceding that Harnish considered and rejected ODFW’s assertions. ODFW Mot. 17. Regardless, ODFW fails to cite any study specific to the Santiam River basin that proves Harnish is generally wrong.12 Instead, ODFW cites a “meta-analysis of multiple hatchery steelhead programs” that finds rates of residualism ranging from 0% to 17%, with an average of 5.6%. Id. (citing Hausch and Melnychuk (2012)). Notably, the rate of residualism Harnish found in the South Santiam basin falls squarely within the range of ODFW’s proferred meta-analysis.
In the end, if dispute remains about whether the “absolute minimum of 12.8%” or the “probably less than 10%” is the correct figure to apply, courts have found “[t]o the extent that there is any uncertainty as to what constitutes the best available scientific information, Congress intended ‘to give the benefit of the doubt to the species.’” Ctr. for Biological Diversity v. BLM, 422 F. Supp. 2d 1115, 1127 (N.D. Cal. 2006) (citing Conner v. Burford, 848 F.2d 1441, 1454 (9th Cir. 1988)). But ultimately, the difference between an absolute minimum of 12.8% and probably less than 10% may be immaterial to Riverkeeper’s claim: Either way, given that 121,000 summer steelhead juveniles are released every year into both the North and South Santiam Rivers, NOAA AR 2170, the best available science proves a very significant number residualize: 15,488 in each river if 12.8%, and 9,680 in each river if, for example, 8%. Moreover, this is how many summer steelhead juveniles residualize every year. Residual summer steelhead may display one of two life histories: they may “revert entirely to freshwater,” or they may smolt
Instead, Harnish says “it is possible the radio-tagged fish” it studied residualized “at a higher rate than the general hatchery population.” NOAA AR SUP 1607.
12 ODFW cites not a peer-reviewed, published study about residualism, but a 2005 year-end staff report about progress toward meeting annual workplan goals, part of which concerns taking stomach samples from summer steelhead released into the McKenzie River to gauge predation rates on juvenile Chinook. ODFW Mot. 17 (citing NOAA AR 7928). Not only does ODFW misrepresent the basis for an incorrect “1%” figure as to residualism, the report is irrelevant: It is not about residualism; does not focus on the Santiam; its methodology is netting and fishing, not radio-tagging; it lacks peer review; and, foremost, the BiOp does not anywhere cite or rely on it.
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(go to the ocean) after “several months or years” of rearing in freshwatrer. NOAA AR SUP 1606. Whether these summer steelhead revert entirely to freshwater, or smolt after “several months or years” of rearing (up to 2 years, NOAA AR 2031), the best available science shows there are additional and significant cumulative effects from predation from these fish.
b. The BiOp Fails to Consider and Analyze the Effects of Residualism
Riverkeeper asserts NMFS failed to fully “[e]valuate the effects of the action . . . on the listed species” under 50 C.F.R. § 402.14(g)(3), because the BiOp fails to evaluate the effects on winter steelhead of the significant number of summer steelhead that residualize. The BiOp simply lacks, anywhere, a cogent consideration and discussion of effects on winter steelhead of having even 9,690 summer steelhead residualize yearly in both the North and South Santiam Rivers and, in addition, considering and discussing the cumulative effects of additional annual releases. Even 9,690 residual summer steelhead in each river dwarfs the number of recent adult winter steelhead returns. NOAA AR 14392 (“the 10-year average for returning adults [to the winter steelhead DPS as a whole] would be an average 3,409.”); NOAA AR 2031 (“[i]n the last 10 years (2007-2016), winter steelhead spawners upstream of Willamette Falls have…averaged 3,140”). Further, the BiOp states “densities” of residualized summer steelhead are “highest near the hatchery facility,” and decrease downstream. NOAA AR 2179. In turn, “most” winter steelhead adults seek to reach the “highest quality rearing habitat” below the dams, NOAA AR 14476, and some of the highest density of winter steelhead redds are found “directly below Foster Dam, near the South Santiam Hatchery.” NOAA AR 10957 & 10976 (map). This is also precisely where summer steelhead juveniles are released, and residualize. The BiOp fails to consider and evaluate these effects.
4.
Predation.
The parties agree steelhead are piscovorious, and prey on other steelhead. NOAA AR 2078, 2100. Further, the winter steelhead Recovery Plan urges, among other things, to decrease predation of winter steelhead by summer steelhead. NOAA AR SUP 765. There are generally
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The BiOp discusses only one means of predation: it addresses summer steelhead juvenile predation and, citing Naman (2012), finds that “[l]ow predation rates have been reported by released steelhead juveniles.” NOAA AR 2091. That statement is correct but oversimplifies Naman.14 Riverkeeper noted Naman is a literature review of six studies, one of which finds that in a physical setting like the South Santiam, “heavy predation” can exist with a dam at the upper limit of anadromy, hatchery yearling released at the base of the dam, wild salmonid redds within 3.2 km of releases, and fewer than 20% of wild subyearlings had emigrated. Plfs’ Mot. 20 (citing NOAA AR 6959).15 When those factors converge, Naman “documented the highest predation rate we reviewed, orders of magnitude greater than most others.” NOAA AR 6959
NMFS responds first there is “no spatial” overlap between released summer steelhead juveniles and emergent winter steelhead. Feds’ Mot. 27. That is incorrect. Summer steelhead are released into the South Santiam River from the South Santiam hatchery at the base of Foster
13 As for predation from adult summer steelhead, it occurs from residual adults; ODFW is correct summer steelhead returning from the ocean generally do not eat. ODFW Mot. 17.
14 Riverkeeper’s claim is not that NMFS failed to consider the best available science on predation, which is Naman. Cf. Nat’l Res. Def. Council v. Haaland, 102 F.4th 1045, 1066-67 (9th Cir. 2024). It is that NMFS failed to read Naman carefully as a literature review of six predation studies and distinguish and focus on the findings in the one most closely akin to the situation in the Santiam basin.
15 NMFS correctly notes Naman studied hatchery steelhead preying on newly-emergent coho and Chinook salmon, not steelhead, as Riverkeeper wrote in its motion. Feds’ Mot. 27. But the difference does not matter: salmonids prey on salmonids based on size, not species. FWS AR 2613; NOAA AR 4362. Further, neither NMFS nor ODFW disputes that when summer steelhead are released, they are already “smolt-sized,” as if they had reared in the river for a year, which can give them a “size advantage” over newly-emerged winter steelhead. NOAA AR 4349. Nor that “[s]almonid predators are generally thought to prey on fish approximately 1/3 or less their length. Due to their location, size, and time of emergence, newly emerged salmonid fry are likely to be the most vulnerable to predation by hatchery released fish.” NOAA AR SUP 1091.
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16 two ways hatchery summer steelhead can prey on winter steelhead. First, newly-released summer steelhead juveniles can prey on newly-emergent winter steelhead. Second, residual summer steelhead can also prey on newly-emergent winter steelhead. NOAA AR 2100, 2178-79, 2182.13
Second, NMFS responds there is no “temporal” overlap because summer steelhead releases “occur when winter steelhead are still incubating.” Feds’ Mot. 27. That is an incorrect generalization The summer steelhead HGMP states that only those fish that “volitionally” enter a tube are released. USACE AR 6598. And hatchery managers time releases as to when summer steelhead begin to “smolt.” USACE AR 6626. Accordingly, as the HGMP states: “Release timing (varies upon condition/smolt size at hatcheries)” with a “performance target” of a release period of “April 1 – May 30.” USACE AR 6589. Further, 121,000 summer steelhead do not volitionally exit the hatchery in one day; the HGMP states hatchery managers allow “volitional emigration from the point of release over an extended period of time (e.g., 2-4 weeks).” USACE AR 6613. Moroever, summer steelhead released into the rivers do not outmigrate immediately: the “majority” emigrate up to seven to ten days later, with others emigrating even later. NOAA AR 2177.
In turn, the HGMP states winter steelhead adults begin to return to the UWR as early as January, with a “high abundance” of adults beginning to return in February. USACE AR 6602.
16 ODFW asserts otherwise, without citing any part of the BiOp or the administrative records, to assert: “Nor do these releases of 121,500 fish in each of these basins spatially overlap until the fish are more than 35 miles downstream of the release points and out of winter steelhead spawning and rearing habitat.” ODFW Mot. 20. The record contradicts that assertion
Plaintiffs’ Opposition to Cross-Motions for Summary Judgment, and Reply, No. 6:21-cv-34-AA 17 Dam (RM 38.5), and they are released into the North Santiam River from the Minto Fish Facility (RM 42) NOAA AR 2008, 4400-01, 2174 (Figure 66); USACE AR 1943 In turn, in 2017, ODFW surveyors found winter steelhead “[r]edd density was highest in the survey section directly below Foster Dam, near the South Santiam Hatchery.” NOAA AR 10957, 10976 (map of redd density). Similarly, for the North Santiam River, the highest winter steelhead redd density is from Rock Creek upstream to the Minto Fish Facility, which is about 4.5 miles downstream of Big Cliff Dam. NOAA AR 7921. The record proves there is significant spatial overlap between summer steelhead releases and winter steelhead redds, at or near the upper limit of anadromy, which can be consistent with “heavy predation.”16
Winter steelhead spawning and intra-gravel development begin in March and, depending on water temperatures, eggs may incubate from 1.5 to four months. Id So there is temporal overlap between the first month of winter steelhead emergence and the last month of summer steelhead releases: May. Further, “vulnerability [to predation] is believed to be greatest immediately upon emergence.” NOAA AR 2092. These data prove temporal overlap between released summer steelhead and newly-emerged winter steelhead. The best available science belies the BiOp’s conclusion that the risk of predation by released juveniles on emergent winter steelhead is “low.”
Independently, the BiO does not at all address residual summer steelhead predation on both newly-emerged and rearing winter steelhead. Some residual summer steelhead “take up residency before naturally produced fry emerge from redds.” NOAA AR 2089. And winter steelhead juveniles generally rear for two years in freshwater. NOAA AR 2031. So both newlyemergent and rearing juvenile winter steelhead are subject to predation by residual summer steelhead. The BiOp fails to consider and disclose the effects of residual rearing and adult summer steelhead predation on newly-emerged and juvenile winter steelhead. Finally, neither NMFS nor ODFW address that the record proves harmful effects of predation are exacerbated when, as in the Santiam basin, “natural populations of salmon and steelhead are at low abundance and when spatial structure is already reduced,” and “when habitat, particularly refuge habitat, is limited . . . .” NOAA AR 2091. Here, all three factors are present in the basin: (1) low abundance of winter steelhead, (2) spatial structure reduced by dams, and (3) limited refuge habitat, since summer steelhead are released into the same areas.
5. Fishing
The only reason hatchery summer steelhead exist in the winter steelhead DPS is to create fishing opportunities that historically never existed. NOAA AR 4368. And no federal agency has a legal duty to fund or facilitate these releases. See infra pp. 6-7. The issue is whether the BiOp fully evaluates consequences to the winter steelhead DPS of the impacts of fishing for summer steelhead.
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First, there is timing overlap between when summer steelhead fishing occurs and when adult winter steelhead are in the system: fishing is allowed from March to December. NOAA AR 4368. Adult winter steelhead are present and migrating upstream in the DPS from January through July, with January and June-July the months of “low level” migrating abundance, and February through May the months of “high level” migrating abundance. USACE AR 6602. Peak winter steelhead spawning is in April and May. Id. Although most summer steelhead fishing occurs from June through August, NOAA AR 4368, winter steelhead are present in the DPS when summer steelhead fishing occurs.
Second, neither NMFS nor ODFW cites a peer-reviewed study that differs from Hooton (1987), which finds up to 8% mortality of winter steelhead in a catch-and-release fishery when anglers use barbed and barbless hooks, bait and artificial lures. NOAA AR SUP 478.17 (Hooton is corroborated by the Recovery Plan, which assumes a 10% mortality from catch and release fishing. NOAA AR SUP 109.) ODFW criticizes Riverkeeper for citing Hooton and infers the study has nothing to do with the UWR, ODFW Mot. 18, but Hooton is cited in and relied on by NMFS in its report evaluating impacts on winter steelhead of fishing for summer steelhead in the UWR. NOAA AR SUP 478. So consider 8% mortality from fishing is reliable. In 2015, 1,312 and 1,195 adult winter steelhead returned to the North and South Santiam, respectively. NOAA AR 15042 That would mean 104 and 95 adult winter steelhead died due to fishing, respectively.
The issue is whether these two “core” and “genetic legacy” populations of a significantly depressed winter steelhead DPS can sustain the loss this number of adults in addition to all of the other harmful physical, ecological, and genetic effects they face. Allowing discretionary mortality of already significantly diminished runs for a solely recreational fishery contradicts that fishing does not impede recovery of the DPS; it is “counter to the evidence before the agency.”
Motor Vehicle Mfrs. Ass’n. of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
17 ODFW’s arguments about “retention” are irrelevant since winter steelhead are not allowed to be retained, and its argument about bait allowed “only from April 22 to October 31” helps prove Riverkeeper’s point. ODFW Mot. 19. Note though bait is not allowed at all in the Calapooia.
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6 Competition.
NMFS argues the BiOp correctly finds “low” effects on winter steelhead of competition with summer steelhead. Feds’ Mot. 29. But the EIS states “competition” with summer steelhead is a “key limiting factor” for winter steelhead in the North and South Santiam Rivers. NOAA AR 14475. It notes summer steelhead juveniles released earlier than when winter steelhead emerge “may have a competitive advantage in occupying choice feeding territories prior to the emergence of winter steelhead.” Id. It states that “when large hatchery releases result in the localized carrying capacity to be exceeded, which is presumed to be the case in [the UWR] subbasins, there is increased potential for density-dependent mortality on wild fish for early life stages.” Id. (emphasis added). It notes “[t]he overlap in space and time, combined with the competitive advantage that residual hatchery steelhead appear to have over naturally produced [winter steelhead], increases the potential for negative ecological interactions that could have population-level effects on the wild winter steelhead population of the South Santiam River.”
NOAA AR 14476. Far from “cobbling together various general assumptions,” Riverkeeper relies on the representations in the EIS to show they do not square with the finding in the BiOp
For its part, the BiOp states as a primary factual basis for finding “low” effect from competition that “most of the habitat where natural origin fish rear throughout the population areas are not exposed to releases of hatchery fish.” NOAA AR 2100. That does not square with the record. “Most” winter steelhead adults in the DPS (= 70%) return to the North and South Santiam basins. NOAA AR 10954. In the South Santiam River, some of the highest density of winter steelhead redds (nests) are found “directly below Foster Dam, near the South Santiam Hatchery.” NOAA AR 10957 & 10976 (map). Further, “[m]uch of the quality rearing habitat located downstream of Foster Dam appears to be situated in the roughly 10 miles between Foster Dam and McDowell Creek. . . .” NOAA AR 14476 (emphasis added). And “[j]uvenile steelhead rear in headwater tributaries and upper portions of the subbasins for one to four years (most often two years).” NOAA AR 2031. Conditions are similar in the North Umpqua River, where the
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7 The PCD Risk Model
NMFS notes the PCD Risk model estimates “the magnitude of interactions that could occur under a certain set of assumptions.” Feds’ Mot. 29 (quoting NOAA AR 2167). NMFS is entitled to model, but again, its inputted assumptions do not reflect the facts in the winter steelhead DPS. For example, NMFS chose an input of four days of interaction between summer and winter steelhead on the basis it is “expected to last three to [ten] days” [meaning it did not choose the median]. Feds’ Mot. 20 (citing NOAA AR 2177). But that AR cite states that time period is for salmon, not steelhead. NOAA AR 2177. And the same cite says the “situation for hatchery steelhead” interacting with wild steelhead is “greater because hatchery steelhead are larger in size (greater predation risk) and released later in the year (April) when water temperatures are higher and metabolism is also higher resulting in the need for greater food consumption.” Id. So both the species and timing inputs into the model were inappropriate. As another example, for areas of interaction, NMFS chose to input all river miles from the point of hatchery releases downstream to the mouth of the Willamette in Portland, NOAA AR 2171, 2174, even though the BiOp states the “greatest ecological interactions” between newly-released summer steelhead and emergent winter steelhead are just immediately downstream of the release points, not 34 and 48 miles downstream, respectively, from the Minto Fish Facility and the South Santiam hatchery. NOAA AR 2179. It was arbitrary and capricious for NMFS to rely on the outcome of its PCD Risk model when its inputs do not focus on winter steelhead within the DPS.
8. Displacement.
There is no factual dispute “[n]aturally produced fish may be competitively displaced by hatchery fish early in life, especially when hatchery fish are more numerous, are of equal or
Plaintiffs’ Opposition to Cross-Motions for Summary Judgment, and Reply, No. 6:21-cv-34-AA 21 “highest quality rearing habitat” is below the dams. NOAA AR 14476. The BiOp’s factual premise underlying “low” effect from competition that rearing winter steelhead “are not exposed to releases of hatchery fish” – is not true, and it distorted the analysis of effects of competition.
greater size, when hatchery fish take up residency before naturally produced fish emerge from redds [nests], and if hatchery fish residualize.” NOAA AR 2089. Nor that Mapes (2015) found winter steelhead redd density highest in the survey section directly below Foster Dam, near the South Santiam Hatchery, NOAA AR 10957 & 10976, which also contains some of the “highest quality rearing habitat” within the degraded baseline below the dams. NOAA AR 14476. Further, summer steelhead juveniles are released, and residualize, “below the hatchery facilities in the North and South Santiam rivers.” NOAA AR 2152. Finally, the EIS notes “considerable overlap of habitat use (in space and time) by residual hatchery steelhead and naturally produced [winter steelhead] in the South Santiam River,” and that “the density of naturally produced [winter steelhead] generally increased with increasing distance from the hatchery” suggesting displacement. NOAA AR 14476.
Neither NMFS nor ODFW identify anywhere in the BiOp where this issue is directly addressed or resolved. Every factor showing significant displacement of winter steelhead is present here: (1) summer steelhead juveniles and adults are more numerous than winter steelhead immediately below the dams; (2) summer steelhead juveniles are larger than emergent winter steelhead fry, giving them “a size advantage,” NOAA AR 4341, 4349, 4371; and (3) summer steelhead residualize in the same habitat winter steelhead seek. NOAA AR 14476, 2152. The BiOp fails to address or evaluate this significant problem
9. Genetic Introgression.
NMFS and ODFW assert the BiOp adequately accounts for existing genetic introgression in winter steelhead. Feds’ Mot. 22-23, ODFW Mot. 24-25. They are wrong for two reasons.
First, the BiOp does not explain or account for the significance of genetic baseline data in Johnson (2013), which is a study the BiOp relies on to calculate gene flow. NOAA AR 2159. That study found 11.1% and 14.8% of steelhead sampled in the North and South Santiam Rivers were winter-summer steelhead hybrids, respectively. NOAA AR 12973. Even if the BiOp’s critiques of Johnson (2018) and Weigel (2018) are valid, the BiOp still fails to discuss the
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significance of the genetic baseline data Johnson (2013) reports. Because the BiOp lacks this foundational explanation, its genetic effects analysis is incomplete.
Second, the BiOp does not explain how the presence of winter steelhead genetic material in steelhead samples validates its finding that the summer steelhead hatchery program has “low” genetic effects. NOAA AR 2166. Aside from using genetic data to calculate long-term gene flow rates, NOAA AR 2159, the BiOp does not explain how evidence of winter steelhead genetic structure alone shows low effects. Indeed, the BiOp does not explain why these effects are low when, again, 11.1% and 14.8% of the steelhead sampled in the North and South Santiam Rivers show winter-summer steelhead hybrid genetic structure. NOAA AR 12973.
10. Climate Change.
The BiOp states climate change is “projected to have serious negative implications” for salmon and steelhead in the Columbia River basin generally, NOAA AR 2047, and conditions in the UWR “are going to change substantially” in the next 100 years, including higher air temperatures, less precipitation, less snow, earlier snowmelt, and possible storm increases. NOAA AR 2047–48 (citing Doppelt 2009)) 18 But beyond listing these significant detrimental changes in freshwater habitat, the BiOp fails to evaluate the consequences for winter steelhead. Consider stream temperatures. Steelhead are “poikilotherms (‘cold-blooded’ animals), so increasing temperatures in all habitats can have pronounced effects on their physiology, growth, and development rates.” FWS AR 2052-53. The Recovery Plan, prepared in 2011, states that poor water quality, including high stream temperatures, is a primary limiting factor to recovering winter steelhead throughout the DPS. NOAA AR SUP 660 (Molalla), 667 (North Santiam), 675 (South Santiam), 682 (Calapooia). The administrative records prove all of these rivers and many of their tributaries are already designated as “water quality limited” for high stream temperatures.
18 Riverkeeper noted Doppelt (2009) is not about the rivers in the winter steelhead DPS; it is focused on the McKenzie. Plfs’ Mot. 27 (citing NOAA AR 2047-49). NMFS responds that the BiOp “considered other, more recent studies” related to climate change. Feds’ Mot. 35 (citing studies listed at NOAA AR 2047). But the BiOp does not discuss specifically the findings in any of those studies: it relies on Doppelt for its listing of predicted changes in the UWR.
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NOAA AR 14382. And high water temperatures stress all life stagest of winter steelhead. FWS
AR 2520. The BiOp anticipates climate change will cause even greater increases in stream temperatures, in the range of 2º F to 4º F generally and 4º F to 6º F in the summer, NOAA AR 2048, which will make rearing juvenile steelhead more susceptible to disease and stress. NOAA AR 15584. But the BiOp fails to take the next required step: analyze how these anticipated increases in a critical component of freshwater fish habitat will affect the survival and recovery of winter steelhead. Nat’l Wildlife Fed’n v. NMFS, 184 F. Supp. 3d 861, 920 (D. Or. 2016) (BiOp failed to properly address climate change because it failed to perform a “quantitative analysis for freshwater climate conditions.”).
NMFS does not respond to identify where in the BiOp this required analysis occurs. Instead, NMFS notes the BiOp moves into a comparative analysis of winter steelhead and spring Chinook, stating winter steelhead “have higher temperature tolerances that will enable juvenile fish to utilize habitats that will be increasingly affected by climate change,” and that while “[w]inter steelhead in the UWR...will be impacted by climate change[,] ... due to their life history and distribution, effects are not likely to be as extreme as for spring Chinook.” NOAA AR 2190. But as Riverkeeper noted, the first premise is partly wrong, because tributaries are water quality impaired too, and the second premise is irrelevant, because the issue is not how climate change will comparatively impact these species; the issue is how it will affect winter steelhead.
Further, NMFS has no response to Riverkeeper’s point in citing W. Watersheds Project v. McKay, No. 22-35706, 2023 WL 7042541 (9th Cir. Oct. 26, 2023): there, the Ninth Circuit ruled that in evaluating the effects of climate change on ESA-listed Oregon spotted frogs, “[t]he BiOp needed to consider whether the small frog population could sustain grazing-related impacts on top of potential climate change effects.” Id. at *2. Here, the BiOp not only fails to evaluate the consequences to winter steelhead of projected worsening conditions; it fails to put into the calculus depressed winter steelhead population numbers, and assess whether they can sustain impacts from summer steelhead “on top of potential climate change effects.”
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Finally, these errors matter because NMFS chose to give this BiOp no expiry date. The effects of releasing summer steelhead into habitat for winter steelhead that is projected to worsen considerably due to climate change will be re-evaluated only if somehow reinitation of consultation is triggered. But since the BiOp unlawfully makes no winter steelhead DPS-specific projections or conditions about the effects of climate change, there is no required scenario for climate change to trigger such a reconsideration.
E. The No Jeopardy Finding is Unlawful.
1. Capping Current Gene Flow at Less than 2%.
a. The Scott-Gill Methodology.
As noted, the no jeopardy opinion relies on “managing gene flow (introgression)” from summer steelhead into winter steelhead “to less than 2%.” NOAA AR 2010. To measure genetic effects of summer steelhead to winter steelhead, the BiOp estimates “current gene flow ” NOAA AR 2153 (“[F]or the purposes of analyzing these proposed programs what must be considered is the current rate of gene flow”). The BiOp establishes the Scott-Gill method is the methodology to estimate current gene flow: “We report the results of hatchery steelhead gene flow to ESAlisted winter steelhead using the Scott-Gill method.” Id. The Scott-Gill method is precise in this respect because, as the BiOp states, “[i]t is important to understand that the Scott-Gill method estimates the current rate of gene flow and expected rate of gene flow, not cumulative gene flow.” Id. The Scott-Gill method uses estimates of pHOS, the proportions of overlapping hatchery (H) and natural-origin (N) spawners, and reproductive success rates of HxH and NxH mating types. NOAA AR 2153-54. Using the Scott-Gill method, the BiOp estimates current gene flow in the North and South Santiam winter steelhead populations ranges from 1.8% to 5.7%, depending on pHOS, which varies annually. NOAA AR 2154. That is generally in excess of the 2% current gene flow standard.
The BiOp states the “Island-Continent” method is “another useful measure of gene flow.” NOAA AR 2158. But the BiOp does not explain whether this alternative method calculates
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But the Island-Continent method calculates a hatchery program’s lifetime gene flow average, not the “current gene flow” rate. NOAA AR 2158-59. Indeed, the BiOp does not attempt to use the Island-Continent method to calculate “current gene flow” based on post-2000 genetic samples, even though they allegedly show lower summer steelhead genomes. NOAA AR 2159.19 NMFS is entitled to choose a methodology to determine genetic effects, but the court must ensure its choice is “supported by reasoned analysis.” San Luis & Delta-Mendota Water Auth v. Jewell, 747 F.3d 581, 621 (9th Cir. 2014) (quoting Ecology Ctr. v. Castaneda, 574 F.3d 652, 665 (9th Cir. 2009)). Here, the methodology the BiOp clearly establishes as the correct one to estimate current genetic effects is Scott-Gill, and applying it (as the BiOp says was done) reveals genetic effects in excess of the 2% current gene flow standard.
b. The BiOp Improperly Discounts High pHOS
As noted, current gene flow is based in part on pHOS estimates. To arrive at a “gene flow in the range of zero to 1.8%” the BiOp assumes “10% pHOS” for summer steelhead. NOAA AR 2160. However, pHOS in the North Santiam was estimated to be 62% and 48% in 2012 and
19 ODFW asserts the Island-Continent method is “the most reliable and exacting” method. ODFW Mot. 27. Nothing in the BiOp or the administrative records support that statement. ODFW also implies the BiOp used the Scott-Gill method because NMFS was waiting for new genetic data to calculate gene flow using the Island-Continent method. ODFW Mot. 26. The BiOp makes no such representation, and, in any event, NMFS did not hesitate to use genetic data from Johnson (2013) to calculate favorable gene flow rates it relied on to reach its no-jeopardy determination NOAA AR 2159.
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26 current, expected, or cumulative gene flow rates The BiOp notes this method uses the proportion of genomes assigned to summer steelhead and the number of steelhead generations affected by the hatchery program throughout its 48-year-long history. NOAA AR 2158-59. (Because a steelhead generation generally equals four years, 12 steelhead generations have been affected by the summer steelhead program. NOAA AR 2159). Using the Island-Continent method, the BiOp then estimates long-term “annual gene flow estimates” for the South Santiam and North Santiam winter steelhead populations are 0.6% to 1.4%, respectively. Id.
2014, respectively, NOAA AR 17986, and pHOS in the South Santiam was estimated to be 70%, and 59% in 2014 and 2016, respectively. NOAA AR 17988. Accordingly, recent pHOS data prove the BiOp cannot assume a recent gene flow rate in the range of zero to 1.8%, because pHOS has been far in excess of 10%. The BiOp both ignored available pHOS rates and failed to explain why it did not use available data. Conner, 848 F.2d at 1454 (consulting agency “cannot ignore available biological information”).
c. Gene Flow Calculations Improperly Exclude Residual Steelhead. Riverkeeper has established the significant number of summer steelhead that residualize annually in the Santiam basin. See infra pp. 12-15. Further, as noted, to calculate gene flow, the BiOp uses in part estimates of pHOS, meaning the proportion of hatchery origin steelhead spawning in the wild NOAA AR 2144, 2153. Moreover, the BiOp admits residual summer steelhead have a genetic effect on winter steelhead. NOAA AR 2152. But while the BiOp accounts for returning adult summer steelhead to estimate pHOS, it does not account for residual steelhead. Id. The omission causes NMFS to underestimate gene flow.
d. The BiOp Ignores Offspring of Hatchery Fish that Spawn Naturally
The BiOp states NMFS evaluates six factors when assessing risks from hatchery fish, including “hatchery fish and the progeny of naturally spawning hatchery fish on spawning grounds.” NOAA AR 2079 (emphasis added). The latter means steelhead born in the wild to parents who were either: (1) both hatchery steelhead or (2) included one hatchery steelhead parent and one wild parent. The best available scientific data indicates these progenies have lower fitness, can pass on deleterious hatchery traits when they spawn with wild steelhead, and occur in the UWR. NOAA AR 12428, 18146; USACE AR 3418. Nevertheless, the BiOp does not discuss the genetic effects of the progeny of naturally spawning summer steelhead on winter steelhead. Specifically, the BiOp addresses only the genetic effects of summer steelhead that are released from the hatchery and return to spawn in the wild; it does not address the genetic impact
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of steelhead that were born in the wild from hatchery or mixed parents. Because the BiOp fails to consider this aspect of the problem, it is arbitrary and capricious.
2. Advancing Summer Steelhead Spawn Timing.
The no jeopardy finding relies on the measure of “[a]dvancing the spawn timing of hatchery summer steelhead by spawning broodstock earlier (primarily in December compared to later timing in previous years),” to seek to “segregate spawning of summer and winter steelhead to minimize overlap in time and space.” NOAA AR 2009, 2141. But the BiOp does not rationally explain why spawning all summer steelhead in December will necessarily cause summer steelhead to then spawn earlier in the wild. Summer steelhead have historically been spawned in December and January. NOAA AR 2143. And returning adult summer steelhead have then spawned in the wild as late as February and March. NOAA AR 6906 Because the BiOp does not reasonably explain how that it will occur when the evidence indicates it may not, the no jeopeardy is arbitrary and capricious. Pac. Coast Fed’n Fishermen’s Ass’ns, 426 F.3d at 1090 (agency action unlawful when decision runs counter to the evidence).
3. “Terminating” Recycling
Historically, ODFW “recycled” summer steelhead adults that return to traps but are not needed for broodstock, and released them back into the river to enhance fishing. NOAA AR 2010.20 The summer steelhead HGMP states as a “program performance standard” that “[e]xcess adult hatchery returns are recycled through the fishery to increase harvest rate.” USACE AR 6586. The HGMP also states ODFW will “suspend the recycling programs in the Santiam basin until there is evidence that the programs present little risk to winter steelhead . . . .” USACE AR 6594. The BiOp also uses the same verb, stating ODFW will “suspend” recycling. NOAA AR 2145. The NEPA ROD states that ODFW “will specify what recycling (if any) can occur for
20 Most recycled summer steelhead are not caught nor return to traps. Erdman (2018) found that of 283 tagged summer steelhead recycled into the South Santiam River, 11.3% were caught, 34.3% returned to the trap, 9.2% strayed outside of the river, and 54.4% remained in the river. NOAA AR 8014, 8019.
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The record shows there is no such guarantee. NMFS could have required termination of recycling by stating that provision as a term and condition of the ITS. Instead, the ITS states that ODFW must implement the provisions of the HGMP, NOAA AR 2204, which does not even use the words “terminate” or “termination.” The Court cannot rely on termination of recycling “without more solid guarantees [it] will actually occur.” Nat’l Wildlife Fed’n, 524 F.3d at 935.
4. Temporarily Reduced Releases
The HGMP characterizes reductions to 121,000 summer steelhead juveniles into the South Santiam as “interim” and “temporary.” USACE AR 6591. Further, the ITS specifically allows increases of up to 10% of 121,000 for releases into both the South and North Santiam (see next argument infra subsection F.1.). The no jeopardy finding unlawfully relies on a mitigation measure that is both ambiguous and uncertain to occur. F. The ITS is Arbitrary and Capricious.
1. The ITS Allows Summer Steelhead Increases the BiOp Did Not Evaluate
The ITS states the permissible amount or extent of incidental take by three indicia, including the “smolt release goal” in the summer steelhead HGMP. AR 2201. As noted, the HGMP states summer steelhead releases will be “temporarily reduced in the South Santiam by 25% - to 121,000,” to equal the same number of fish historically released into the North Santiam. USACE AR 6591. But the ITS sets a permissible take limit for the number of summer steelhead that allows “plus 10% for annual variability,” which can mean increases of that amount in both rivers NOAA AR 2201. In its motion, Riverkeeper asserts the BiOp never evaluated the prospect of an additional 12,100 summer steelhead juveniles released into each river. Plfs’ Mot.
Plaintiffs’ Opposition to Cross-Motions for Summary Judgment, and Reply, No. 6:21-cv-34-AA 29 hatchery summer steelhead.” NOAA AR 14087. When Plaintiffs commented that NMFS failed to clarify these ambiguities, NMFS responded: “[T]here are management guidelines in the HGMPs that prohibit recycling after September 1st each year. There are no limits to recycling before this date, although ODFW may choose to not recycle.” NOAA AR 14731. And yet the no jeopardy finding is based on the premise that recycling is “terminated.” NOAA AR 2010
34. In response, NMFS asserts “[t]he effects analysis considered up to this limit annually.” Feds’ Mot. 36 (citing NOAA AR 2201) (emphasis original). Where in the BiOp? NOAA AR 2201 is a citation to the ITS, not the BiOp. By contrast, the BiOp states reducing summer steelhead releases into the South Santiam to 121,000 fish is a hatchery reform “management change.”
NOAA AR 2009 ODFW touts the reduction to 121,000. ODFW Mot. 28. And in the BiOp,
NMFS inputted 121,000 fish into the PCD model to determine risk, NOAA AR 2171, which in turn informed the “analysis of effects” in Table 32 in section 2.5.2.3, NOAA AR 2178, which is referred to in the ITS. NOAA AR 2201. Riverkeeper can find no place in the BiOp where any “effects analysis” in fact considered increases of up 12,100 summer steelhead into both the North and South Santiam. The ITS unlawfully insulates exceedances of the proposed action from reinitation of consultation as to whether they may cause jeopardy to winter steelhead, even though the BiOp never evaluated the effects of those exceedances.
2. The ITS Does Not Set a pHOS Limit for Ecological Take.
NMFS asserts Riverkeeper’s ecological take limit argument is flawed because it relies on ten-year-old case law and a different biological opinion. However, first, NMFS fails to explain why ten-year-old case law is irrelevant or, why, if that were true, it cites in its motion 23 cases that are over ten years old. Feds’ Mot. ii-iv. Second, the Mitchell Act BiOp is relevant because NMFS cannot rationally explain why it deemed it necessary to include pHOS-based ecological take limits for summer steelhead releases in southwest Washington but not in the UWR just two years after issuing the Mitchell Act BiOp. USFWS AR 4014-15. Third, as summarized by ODFW’s former Fish Division Director, “ecological risks have been demonstrated to occur when [pHOS] is over 10%.” Nat’l Wildlife Federation v. NMFS, No. 3:01-cv-00640-SI, ECF No. 1633, Amended Declaration of Edward Bowles, ¶ 127, published at 839 F. Supp. 2d 1117 (D. Or. 2011). Not surprisingly, NMFS has included pHOS-based ecological take limits in other BiOps. See, e.g., FWS AR 4014-15; see also FWS AR 2084 (Select Area Fisheries Enhancement BiOp requiring hatchery programs to comply with pHOS levels described in the Mitchell Act BiOp).
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NMFS does not rationally explain why this BiOp is the exception when the ecological and genetic risks are clearly the same.
3. The ITS’s Genetic Monitoring Requirement is Unlawful.
NMFS asserts the ITS requires current gene flow to be monitored by observing steelhead counts, collection, and spawn timing. Feds’ Mot. 37. That is incorrect. The ITS requires ODFW to monitor these things to estimate the “proportion of hatchery steelhead mating with winter steelhead in the wild,” which is different than gene flow. NOAA AR 2201 (emphasis added). The former (the “mating proportion”) is the rate at which winter and summer steelhead pair with each other out of a pool of potential mates, and the BiOp uses a specific equation to calculate that rate. NOAA AR 2148. However, that is not the rate at which summer steelhead contribute to the next generation of steelhead (i.e., gene flow). NOAA AR 2083. That is because summer steelhead that spawn in the wild have lower reproductive success, and the mating proportion does not account for that. NOAA AR 2153 (“The reproductive success of hatchery fish determines the rate at which genes from the hatchery population are incorporated into the natural population”). To calculate current gene flow, NMFS uses a different equation that accounts for pHOS, the proportions of winter and summer steelhead that overlap, and relative reproductive success rates of different pairing types. NOAA AR 2153-54. Therefore, measuring the mating proportion does not measure current gene flow.
Using the mating proportion to detect genetic take potentially jeopardizes winter steelhead. Table 28 in the BiOp shows that gene flow can exceed 2% when the mating proportion is below 2%. NOAA AR 2154. Indeed, the table shows gene flow in the North and South Santiam populations are 1.8%-5.7% when the mating proportion is 0.96%-1.15%. Id. Thus, using the mating proportion to measure gene flow is not only irrational (because it does not measure gene flow), it would fail to trigger reiniation of consulation when gene flow exceeds 2% but the mating proportion does not. Therefore, the ITS is unlawful.
G. Summer Steelhead Jeopardize Winter Steelhead.
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Three legal requirements provide the framework for Riverkeeper’s jeopardy claim. First, the jeopardy determination is additive 50 C.F.R. § 402.14(g)(4). Second, “an agency may not take action that will tip a species from a state of precarious survival into a state of likely extinction. Likewise, even where baseline conditions already jeopardize a species, an agency may not take action that deepens the jeopardy by causing additional harm.” National Wildlife, 524 F.3d at 930. Third, NMFS must strike any balance “in favor of affording endangered species the highest of priorities, thereby adopting a policy which [Congress] described as ‘institutionalized caution.’” Cottonwood Envt. Law Ctr. v. U.S. Forest Serv , 789 F.3d 1075, 1091 (9th Cir. 2015) (quoting TVA v. Hill, 437 U.S. 153, 194 (1978)).
NMFS and ODFW largely ignore the requirements of the jeopardy framework. Their primary defense is recent “summer steelhead hatchery reforms” will “minimize” or “mitigate” continued harmful effects from summer steelhead to winter steelhead. But the administrative records prove, first, winter steelhead in the DPS now exist in truncated, significantly degraded habitat below some of the best spawning and rearing habitat in the DPS. FWS AR 2494. Climate change is projected to “have serious negative implications” for steelhead, NOAA AR 2047, meaning conditions are are anticipated to worsen “substantially” in the next decades. NOAA AR 2047–48. In that physical context, NMFS has approved the discretionary release of non-native hatchery fish solely to create an historically non-existant recreational fishery. And these fish, in every metric or factor analyzed in the BiOp and other reports and studies in the four administrative records, harm winter steelhead. The parties dispute the quantum or severity of harm, but the records prove harm exists and, because the determination is additive, this hatchery program jeopardizes the remaining winter steelhead in the DPS.
H. The EIS Violates NEPA.
Under the “rule of reason” standard of review, the EIS fails to “[r]igorously explore and objectively evaluate” the effects of “all reasonable alternatives” to the action. 40 C.F.R. §§
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Riverkeeper raised this issue in its comments on draft EIS. NOAA AR 14712. In response, NMFS evaded it, asserting it was lawful to analyze generally what would happen if “all hatchery operations would cease,” without distinguishing among the hatchery programs.
NOAA AR 14731. As a result, NMFS unlawfully “summarily dismissed” a legitimate alternative and “gave no explanation for why the alternative proposed did not lend [itself] to meaningful analysis.” Env’t Def. Ctr. v. Bureau of Ocean Energy Mgmt., 36 F.4th 850, 877 (9th Cir. 2022).
Now, in its motion, NMFS takes a different tack, and defends the EIS by asserting that Riverkeeper fails to show that “unbundling the analyses would yield any new information to inform its decision.” Feds’ Mot. 39-40. It is NMFS’s and not Riverkeeper’s burden to prepare a
21 NMFS asserts Riverkeeper did not allege “this argument” that the EIS fails to include a reasonable range of alternatives. Feds’ Mot. 37-38 n.18. Riverkeeper’s pleading states: “The EIS fails to include a reasonable range of alternatives.” Second Amd. Cmpl., ECF No. 46 at ¶ 50.
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33 1502.13, 1502.14.21 NMFS does not dispute the EIS states the “purpose” is to ensure “ESA compliance,” and the need is “to ensure the hatchery programs are being managed” to conserve and recover ESA-listed winter steelhead and spring Chinook. NOAA AR 14355. Riverkeeper asserts it was unreasonable for the EIS to not separately consider and evaluate an alternative of approving the four spring Chinook HGMPs but not the single summer steelhead HGMP, given their very different legal roles under the ESA, and their environmental effects. Instead, the EIS considers one general alternative (Alternative 4) of ending all hatchery programs in the UWR. NOAA AR 14323-24. But even the text of Alternative 4 addresses and admits that ending only the hatchery spring Chinook programs would not “meet the purpose and need for action because termination of the spring Chinook hatchery programs is not supported by [the] NMFS (2008) Biological Opinion for the Willamette Project.” NOAA AR 14372. In other words, Alternative 4 does not address or resolve that hatchery summer steelhead releases could be ended on the clear bases that they are not, unlike hatchery spring Chinook, listed under the ESA, have no role in conserving or recovering winter steelhead (and are only detrimental to them), and the 2008 BiOp does not preclude ending the summer steelhead program in order to benefit winter steelhead.
meaningful EIS. Friends of the Clearwater v. Dombeck, 222 F.3d 552, 559 (9th Cir. 2000) (“Compliance with NEPA is a primary duty of every federal agency; fulfillment of this vital responsibility should not depend on the vigilance and limited resources of environmental plaintiffs.”) (citation omitted)). But regardless, the evaluation in Alternative 4 in the EIS of the “effects” of ending the summer steelhead hatchery program is comprised of one cursory sentence: “As discussed above, there is potential that eliminating the summer steelhead hatchery program may increase the viability of the UWR winter steelhead DPS by reducing the genetic effects of interbreeding and the ecological interaction effects with hatchery summer steelhead.”
NOAA AR 14482-83. This is not a meaningful hard look at the significant difference in effects between ending a single hatchery fish program that harms a listed wild steelhead DPS in all relevant respects and, by contrast, continuing different hatchery fish programs that assist in the survival and recovery of wild spring Chinook ESUs. NMFS violated NEPA by failing to consider a patently reasonable alternative. W. Watersheds Project v. Abbey, 719 F.3d 1035, 1050 (9th Cir. 2013) (“a viable but unexamined alternative renders an [EIS] inadequate”).22
I The Court Should Vacate the Unlawful Agency Actions
For relief, Riverkeeper has asked the Court to set aside the BiOP, EIS and ROD, and approval of the summer steelhead HGMP. Plfs’ Mot. 39-40. In response, NMFS and ODFW do not dispute that “[u]nder the APA, the normal remedy for an unlawful agency action is to ‘set aside’ the action.” Se. Alaska Conservation Council v. U.S. Army Corps of Eng’rs, 486 F.3d 638, 654 (9th Cir. 2007). Courts depart from this remedy only “when equity demands,” Pollinator Stewardship Council v. E P A , 806 F.3d 520, 532 (9th Cir. 2015), and only in “rare circumstances.” Or. Nat. Desert Ass’n v. Jewell, 840 F.3d 562, 575 (9th Cir. 2016). NMFS and ODFW respond that the Court is not “required” to vacate the actions, which is true. Feds’ Mot. 40, ODFW Mot. 28. However, a party asserting that a court should not enter the presumptive remedy of vacatur bears the burden of proving that “rare circumstances” exist and “equity
22 ODFW does not defend the EIS. Cf. ODFW Mot. 27-28.
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34
NMFS and ODFW fail to meet their burden: neither proves in any respect that rare circumstances exist, nor that equity demands the unlawful agency actions remain in place. Instead, for its part, NMFS “request[s] an opportunity to further brief the appropriate remedy.” Feds’ Mot. 40. But the parties stipulated to and the Court ordered a case management schedule that does not bifurcate the proceedings. Order, ECF No. 45 (April 23, 2024).
For its part, ODFW asserts that if the Court rules the underlying agency actions are unlawful, it “should limit vacatur to only those portions of the documents that relate to the Santiam basin release portion of the summer steelhead program.” ODFW Mot. 29 (citing Cook Inletkeeper v. Raimondo, 541 F. Supp. 3d 987, 995 (D. Alaska 2021)). Riverkeeper agrees with ODFW, in part. Because the BiOp and EIS also consider jeopardy from and evaluate the environmental effects of hatchery spring Chinook, which are not a part of this case, the Court should tailor relief, which it has equitable authority to do. Helena Hunters v. Marten, 470 F. Supp. 3d 1151, 1181-82 (D. Mont. 2020) (ordering partial vacatur in the context of an unlawful BiOp) Here, consistent with ODFW’s request for more limited relief, the Court should explicitly vacate: (1) the parts of the BiOp and EIS/ROD that evaluate, allow, or cover implementation of the hatchery summer steelhead program within the winter steelhead DPS, and (2) NMFS’s approval of the summer steelhead HGMP as to activities within the winter steelhead DPS.
Conclusion.
The Court should grant Riverkeeper’s request for declaratory relief and tailored vacatur.
Date: July 19, 2024. Respectfully submitted,
/s/ Peter M. K. Frost
Peter M. K. Frost (OSB #911843)
Sangye-Ince Johannsen (OSB #193827)
Plaintiffs’ Opposition to Cross-Motions for Summary Judgment, and Reply, No. 6:21-cv-34-AA
35 demands” a different result. Cal. Cmtys. Against Toxics v. U.S. E.P.A., 688 F.3d 989, 992 (9th Cir. 2012); Ctr. for Env’t. Health v. Vilsack, No. 15-cv-01690-JSC, 2016 WL 3383954, at *13 (N.D. Cal. June 20, 2016) (“given that vacatur is the presumptive remedy for a procedural violation such as this, it is Defendants’ burden to show that vacatur is unwarranted.”).
Lindsey Hutchison (OSB #214690)
Robert Kirschner Jr. (OSB #074399)
Attorneys for Plaintiffs
Certificate of Compliance.
Pursuant to LR 7.2(b)(1), I certify that using Microsoft Word functions, this brief does not exceed the word count or page limit for memoranda.
Date: July 19, 2024. /s/ Peter M. K. Frost
Peter M. K. Frost (OSB #911843)
Plaintiffs’ Opposition to Cross-Motions for Summary Judgment, and Reply, No. 6:21-cv-34-AA