Data source
Date of text
07 Dec 2010
Original language


Type of text
National - higher court
Reference number
No. 09-35531
Court name
United States Court of Appeals, Ninth Circuit
Berzon, M.S.
Tashima, A.W.
Fisher, R.C.

This action, brought by the Wild Fish Conservancy (“the Conservancy”), centers on a biological opinion (“BiOp”) addressing the effects of the operations of the Leavenworth National Fish Hatchery (“the Hatchery”) on the bull trout. The 2008 BiOp, prepared by the U.S. Fish and Wildlife Service (“the Service”), concluded that the Hatch- ery’s operations from 2006 to 2011 were not likely to jeopar- dize the continued existence of the bull trout.
Both parties moved for summary judgment and the district court granted the Service’s motion and denied the Conservancy’s, and the latter appealed. The Conservancy appealed the five-year scope of the BiOp, the no jeopardy finding, and the “incidental take” permit. The Ninth Circuit concluded that limiting the scope of the BiOp to five years was arbitrary and capricious, that the Service failed to articulate a rational connection between the BiOp findings and the no jeopardy conclusion, and that the incidental take statement was inadequate.
The Ninth Circuit applied Connor v. Burford which rejected biological opinions addressing only the first, preliminary stage in a multistage project. The Hatchery had delineated a five-year scope based on the proposed infrastructure improvements beginning in five years that would require new consultation. In order to avoid gradual destruction of a species, the court said the scope must be long enough for the Service to make a meaningful determination as to whether the Hatchery’s ongoing operation, in cumulation, “reasonably would be expected to reduce appreciably the likelihood of both the survival and recovery” of the unit. Particularly with the long life of the Hatchery the five years was not sufficient.
The BiOp had projected that the “long-term negative population trends within Icicle Creek are likely to continue.” The court found this projection contradicted the agency determination that the 2006 to 2011 operations and maintenance reasonably would not cause jeopardy at the recovery unit scale. There was no indication of how much longer the resident bull trout could hold on, and the BiOp findings did not indicate that any positive impact from the remaining small number of migratory bull trout would not be offset by the Hatchery. The BiOp also stated that the survival and recovery for the Columbia River unit requires at least maintaining distribution and stability within the core areas, and found the Service’s no jeopardy finding was not rationally related to the finding that the number of bull trout in Icicle Creek would continue to decline over the action period.
Regarding the incidental take statement, the court found that the Service’s not including tribal harvest of bull trout in determining the incidental take unit was reasonable given that tribal treaty rights exempt tribal anglers from the ESA so long as they follow tribal regulations. However, twenty bull trout limit established for incidental take was arbitrary and capricious because the BiOp did not specify how the Service was going to monitor and report the take in order to set a trigger for renewed consultation after take exceeds limits.