FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILD FISH CONSERVANCY,
Plaintiff-Appellant,
v.
KENNETH L. SALAZAR, in his
official capacity as Secretary of
the Interior; UNITED STATES No. 09-35531
FISH AND WILDLIFE SERVICE;
ROWAN W. GOULD, in his official D.C. No.
2:05-cv-00181-LRS
capacity as Acting Director of the
OPINION
United States Fish & Wildlife
Service; JULIE COLLINS, in her
official capacity as Complex
Manager for the Leavenworth
National Fish Hatchery Complex,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, Chief District Judge, Presiding
Argued and Submitted
March 4, 2010—Seattle, Washington
Filed December 7, 2010
Before: A. Wallace Tashima, Raymond C. Fisher and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon;
Partial Concurrence and Partial Dissent by Judge Fisher
19585
19590 WILD FISH CONSERVANCY v. SALAZAR
COUNSEL
Brian A. Knutsen, Richard A. Smith, and Bridget Baker-
White, Smith & Lowney, PLLC, Seattle, Washington, for the
plaintiff-appellant.
John C. Cruden, Acting Assistant Attorney General, Thekla
Hansen-Young, Ellen Durkee, J. Brett Grosko, and David C.
Shilton, Attorneys, Environment & Natural Resources Divi-
sion, Department of Justice, Washington, DC, Nolan
Shishido, of Counsel, Office of Regional Solicitor, Depart-
ment of the Interior, for the defendants-appellees.
OPINION
BERZON, Circuit Judge:
We are faced once again with the far-reaching effects of
federal hydroelectric projects in the Columbia River Basin on
the region’s native fish species. See, e.g., Nat’l Wildlife Fed’n
v. Nat’l Marine Fisheries Serv., 524 F.3d 917 (9th Cir. 2008);
Nw. Res. Info. Ctr., Inc. v. Nw. Power Planning Council, 35
F.3d 1371 (9th Cir. 1994). The fish at the heart of this particu-
lar controversy is not salmon, as in most of the earlier cases,
and the potential threat to its survival and recovery is not a
hydroelectric dam but a hatchery project intended to mitigate
a dam’s impact.
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. See
WILD FISH CONSERVANCY v. SALAZAR 19591
U.S. Fish & Wildlife Serv., Biological Opinion for the Opera-
tion and Maintenance of the Leavenworth National Fish
Hatchery Through 2011 (2008) [hereinafter “2008 BiOp”].
The bull trout is listed under the Endangered Species Act
(“ESA”), 16 U.S.C. §§ 1531-44, as threatened throughout its
range. See Determination of Threatened Status for Bull Trout
in the Coterminous United States, 64 Fed. Reg. 58,910 (Nov.
1, 1999). 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. Because the
Service in several respects failed to articulate a rational con-
nection between the facts found and the “no jeopardy” con-
clusion, we reverse and remand.
I.
A.
In 1938, Congress authorized the establishment of several
salmon hatcheries to replace spawning grounds in the upper
Columbia River made inaccessible by the completion of the
Grand Coulee Dam, which blocks fish migration. See Mitchell
Act, ch. 193, 52 Stat. 345 (1938); 83 Cong. Rec. H6075 (May
2, 1938) (statement of Rep. Rich). The Leavenworth National
Fish Hatchery was built on Icicle Creek, just south of Leaven-
worth, Washington, beginning in 1939. Although funding
responsibility for the Hatchery has shifted among federal
agencies and now rests with the Bureau of Reclamation, the
Service has managed and operated the Hatchery continuously
since its construction. Currently, the Hatchery operates as a
single-species facility, rearing only spring-run Chinook
salmon.1 Initially, salmon were trapped in the Columbia River
1
Although naturally spawned spring-run Chinook salmon in the upper
Columbia River as well as some artificially propagated stocks are listed
as endangered or threatened under the ESA, the Hatchery population is
excluded from the listing because it is significantly divergent from the
local natural populations. See Final Listing Determinations for 16 ESUs
of West Coast Salmon, 70 Fed. Reg. 37,160, 37,175 (June 28, 2005).
19592 WILD FISH CONSERVANCY v. SALAZAR
and hauled to the Hatchery to spawn. The Hatchery no longer
imports salmon into Icicle Creek, relying entirely on returning
adult salmon to meet its production targets.
Unfortunately, and somewhat ironically, the Hatchery itself
blocks fish passage in Icicle Creek (the “Creek”). When the
Hatchery was constructed, a canal was built alongside the
Creek; the Creek’s natural channel is now called the “historic
channel.” The canal culminates in a concrete spillway; fish
can travel downstream over the spillway but not upstream.
Fish whose upstream passage is blocked by the spillway
gather in a deep pool at its base (the “spillway pool”), and
from there the returning salmon, as well as the occasional
interloper, ascend a fish ladder to the Hatchery’s holding
ponds. Adult salmon in the holding ponds are killed and the
females’ eggs removed and incubated. The offspring are
reared in the holding ponds and eventually released into Icicle
Creek.
Unimpeded, the Creek’s historic channel would allow fish
to circumvent the spillway and swim upstream. Passage
through the historic channel is blocked, however, at the two
points at which the historic channel meets the canal: At the
top of the historic channel, radial gates, known as “dam 2,”
divert water from the historic channel to the canal, and, when
closed, also block fish passage through the historic channel.
At the bottom, a weir, or fence, known as “dam 5,” prevents
fish from entering the historic channel; boards can be
removed from the weir to allow fish passage.
How does this configuration affect bull trout, the species
with which we are concerned? Here’s how:
Bull trout exhibit either resident or migratory behavior.
Resident bull trout live out their lives in the streams in which
they were spawned. They are significantly smaller than
migratory bull trout, measuring only six to twelve inches at
maturity, and produce fewer eggs. Migratory bull trout, in
WILD FISH CONSERVANCY v. SALAZAR 19593
contrast, migrate as juveniles to larger bodies of water and
return to their hatching place to spawn. They regularly reach
twenty-four inches or more. Both resident and migratory bull
trout can produce offspring that exhibit either resident or
migratory behavior.
The Hatchery’s barriers have seriously disrupted the migra-
tory trout’s migration and spawning activity. Between 1940
and 2001, migratory bull trout that hatched in the tributaries
upstream of the Hatchery were able to migrate downstream
over the Hatchery’s spillway but were blocked entirely from
returning upstream to spawn. Beginning in 2001, the Hatchery
started adjusting its dams sporadically to allow occasional
upstream fish passage for short periods of time. It also com-
pleted an environmental impact statement on a proposed habi-
tat restoration project, a project that would include modifying
dams 2 and 5 to allow for increased fish passage. That project
has been delayed, however, and, according to the government,
“is likely to take some time to implement.”
Starting in 2006, after the Conservancy initiated this litiga-
tion, the Hatchery implemented two main measures to facili-
tate upstream passage for bull trout and other native fish.
First, it began opening dams 2 and 5 at least partway for about
ten months out of the year; passage remains blocked from
approximately May 15 to July 7, during the salmon collection
period. It also plans to use adaptive management approaches
to open the dams early if enough salmon have been collected.
Second, the Hatchery installed a trap near the fish ladder for
the purpose of collecting bull trout and releasing them above
the dams; any bull trout found in the salmon holding ponds
will also be transported upstream.
B.
Section 7(a)(2) of the ESA requires federal agencies to con-
sult with either the Fish and Wildlife Service or the National
Marine Fisheries Service to “insure that any action autho-
19594 WILD FISH CONSERVANCY v. SALAZAR
rized, funded, or carried out by [the] agency . . . is not likely
to jeopardize the continued existence of any endangered spe-
cies or threatened species.” 16 U.S.C. § 1536(a)(2). The duty
to consult applies to “ongoing agency action[s],” Pac. Rivers
Council v. Thomas, 30 F.3d 1050, 1053 (9th Cir. 1994), as
well as future actions. An “ongoing agency action” exists if
the action “comes within the agency’s decisionmaking author-
ity and remains so.” W. Watersheds Project v. Matejko, 468
F.3d 1099, 1109 (9th Cir. 2006) (internal quotation omitted).
Formal section 7 consultation begins when the “action
agency” (here, the Service in its capacity as the operator of
the Hatchery) transmits a written request to the “consulting
agency” (here, the Service in its consulting capacity). See 50
C.F.R. § 402.14(c); Salmon Spawning & Recovery Alliance v.
Gutierrez, 545 F.3d 1220, 1223 (9th Cir. 2008). The consult-
ing agency then issues a biological opinion evaluating the
“current status of the listed species” and the “effects of the
action and cumulative effects on the listed species,” and offer-
ing a conclusion “as to whether the action, taken together with
cumulative effects, is likely to jeopardize the continued exis-
tence of listed species.” 50 C.F.R. § 402.14(g). To “jeopardize
the continued existence” of a species is to “engage in an
action that reasonably would be expected, directly or indi-
rectly, to reduce appreciably the likelihood of both the sur-
vival and recovery of a listed species in the wild by reducing
the reproduction, numbers, or distribution of that species.” Id.
§ 402.02. “[T]he jeopardy regulation requires [the Service] to
consider both recovery and survival impacts.” Nat’l Wildlife
Fed’n, 524 F.3d at 931.
Aside from making a jeopardy determination, the consult-
ing agency must also consider whether the action will impli-
cate another ESA provision, the general prohibition on
“tak[ing]” of endangered species. ESA § 9, 16 U.S.C. § 1538.
The ESA defines “take” as “to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or to attempt to
engage in any such conduct.” 16 U.S.C. § 1532(19). As
WILD FISH CONSERVANCY v. SALAZAR 19595
authorized by ESA section 4(d), 16 U.S.C. § 1533(d), the Ser-
vice has issued regulations extending the take prohibition to
threatened species, with certain exceptions. See 50 C.F.R.
§ 17.31. The take prohibition applies generally to bull trout in
Washington, although fishing activities authorized under
state, federal, or tribal laws and regulations are exempted. See
id. § 17.44(w).
If the consulting agency concludes that an action is likely
to jeopardize a listed species, it must recommend any “reason-
able and prudent alternatives” that will avoid jeopardy. 16
U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(h)(3). Also, if the
consulting agency concludes that the action will not jeopar-
dize the continued existence of a listed species but is likely to
result in incidental takings, then it must issue an “incidental
take statement” with the biological opinion. 16 U.S.C.
§ 1536(b)(4); 50 C.F.R. § 402.14(i). An incidental take state-
ment exempts a specified number of incidental takings from
the take prohibition of section 9.
Given this statutory structure, once the bull trout was listed
as threatened, the Hatchery was obligated to consult with the
Service to ensure that its operations were not jeopardizing the
continued existence of the species, and also for authorization
of any incidental takings. See Pac. Rivers Council, 30 F.3d at
1053. In its request for consultation, the Hatchery defined the
agency action as the operation and maintenance of the Hatch-
ery from 2006 through 2011. According to the 2008 BiOp, the
Hatchery selected a five-year period because it planned two
modifications to Hatchery operations during and soon after
that period that would require it to reinitiate formal consulta-
tion: (1) replacement of the water intake system, expected to
be completed by 2010, and (2) the habitat restoration project,
projected to begin in 2013.2
2
The Service filed a 28(j) letter with this court on February 18, 2010,
reporting that the replacement of the water intake system had been delayed
as a result of engineering difficulties; the Service now anticipates issuing
a new biological opinion “before the close of 2011 at the latest.”
19596 WILD FISH CONSERVANCY v. SALAZAR
As to the Service’s scheme for evaluating the impact of an
action on the survival and recovery of the bull trout, the Ser-
vice recognizes five bull trout population segments, which it
terms “interim recovery units.” Each unit contains several
local populations, grouped into geographic “core areas.” The
Icicle Creek bull trout population is one of seven local popu-
lations in the Wenatchee River core area. This core area, in
turn, is part of the Columbia River interim recovery unit,
which contains about 90 core areas and 500 local populations,
making it the largest by far of the five recovery units. The
Service conducts its jeopardy determinations for the bull trout
at the interim recovery unit level. See Determination of
Threatened Status for Bull Trout, 64 Fed. Reg. at 58,930.
The 2008 BiOp found that the Icicle Creek bull trout popu-
lation “has been and remains in decline.” 2008 BiOp at 49. As
the 2008 BiOp explained, for most of the time since 1940, all
reproduction in the Icicle Creek bull trout population has
depended on the smaller, less fecund resident bull trout that
live out their lives upstream of the Hatchery, because the
Hatchery structures have prevented migratory bull trout from
returning upstream to spawn. See id. at 31-32. There is no
spawning habitat downstream of the Hatchery, and migratory
bull trout attempting unsuccessfully to return upstream do not
appear to spawn elsewhere once their progress has been
impeded. See id. at 40, 48.
Since 2002, very small numbers of adult migratory bull
trout have occasionally been observed upstream of the Hatch-
ery in Icicle Creek, suggesting that at least a few bull trout
have been able to pass through the Hatchery dams during the
periods they have been open. See id. at 43. The 2008 BiOp
identifies several factors, however, that likely limit the effec-
tiveness of the 2006-2011 operations and management in pro-
viding upstream fish passage: First, the approximately two-
month period during which the dams are closed for salmon
collection largely coincides with the period during which bull
trout attempt to migrate upstream. See id. at 45-47. Second,
WILD FISH CONSERVANCY v. SALAZAR 19597
although the bull trout migration period may extend some-
what beyond the salmon collection period, migrating bull
trout successful in traversing the historic channel face addi-
tional hurdles before they can reach the spawning habitat far-
ther upstream. Most notably, another Hatchery structure, the
intake dam, as well as a group of boulders, is in the way. See
id. at 55-56. Although the intake dam is equipped with a fish
ladder, the ladder location is “suboptimal.”3 Id. at 55. The
boulders, and possibly the intake dam, are passable only dur-
ing high flows, which typically occur in late spring and early
summer. See id. at 56. Beginning in July, flow decreases and
the boulder area becomes a barrier. The salmon collection
period is scheduled to end on July 7 but may be extended for
up to two weeks depending on salmon numbers. See id. at 10.
Thus, in normal years, there is only a brief window during
which migratory bull trout can pass the Hatchery structures
and the boulders to spawn upstream, and in some years there
may be no window at all.4 See id. at 69.
Finally, the Hatchery’s efforts to remove migratory bull
trout from the spillway pool and salmon holding ponds and
transport them upstream have not been successful. See id. at
72-73. Bull trout appear to avoid the fish trap and the salmon
ladder. See id.
As a result of these factors, the Service expects “long-term
negative [population] trends [within Icicle Creek] . . . to con-
tinue.” Id. at 85. The 2008 BiOp found that “in the short-term
the risk of extirpation for the Icicle Creek population is mod-
erately low. . . . [I]n the long-term that risk is higher, although
3
The water intake system also presents a hazard to bull trout because it
is inadequately screened. See id. at 79.
4
Even if migratory bull trout are able to reach the spawning habitat, they
will be able to spawn only if they can find a mate. Although migratory
females can mate with resident males, migratory males apparently cannot
mate with resident females. See id. at 71. Thus, if only small numbers of
migratory bull trout pass the barriers, there may be a skewed sex ratio
among them, which could prevent them from spawning. See id.
19598 WILD FISH CONSERVANCY v. SALAZAR
not as high as it was before formal [operations and mainte-
nance] changes were made at the [Hatchery] in 2006.” Id. at
50. Despite the continued negative population trend for bull
trout in Icicle Creek, the 2008 BiOp concluded that “the effect
of improved upstream passage conditions caused by the pro-
posed action . . . when added to the environmental baseline
should improve, albeit in only a small way, the contribution
of the Icicle Creek local population to the survival of the bull
trout.” Id. at 86. Finally, the Service concluded that the action
was “not likely to appreciably reduce the likelihood of both
the survival and recovery of the bull trout in the wild.” Id. at
87.
C.
The Conservancy, then known as “Washington Trout,”
filed this action in 2005, seeking declaratory and injunctive
relief for alleged violations of the ESA and the National Envi-
ronmental Policy Act (“NEPA”). Pursuant to a partial settle-
ment, the Hatchery engaged in formal ESA section 7
consultation with the Service, resulting, in 2006, in a biologi-
cal opinion (“2006 BiOp”). When the Conservancy chal-
lenged the 2006 BiOp in an amended complaint, the Service
moved for and was granted a voluntary remand. In 2008, the
Service issued the 2008 BiOp under review here, thereby
superseding the 2006 BiOp. The Conservancy, still concerned
that the Icicle Creek bull trout population was being adversely
affected, challenged the 2008 BiOp in a second supplemental
complaint.
Both parties moved for summary judgment. The district
court granted the Service’s motion and denied the Conservan-
cy’s. It concluded that the 2008 BiOp was “sufficiently well-
documented and explained”; that the Service “appropriately
defined and justified the 5-year term of the proposed action”;
that the “no jeopardy” conclusion was not arbitrary and capri-
cious. The Conservancy timely appealed.
WILD FISH CONSERVANCY v. SALAZAR 19599
II.
We review the district court’s decision and analysis on
summary judgment de novo. See Nat’l Wildlife Fed’n, 524
F.3d at 927. We must affirm the district court’s grant of sum-
mary judgment to the Service unless the agency’s action is
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 706(2)(A). Although we
cannot substitute our own judgment for that of the agency, we
must “engage in a careful, searching review to ensure that the
agency has made a rational analysis and decision on the
record before it.” Nat’l Wildlife Fed’n, 524 F.3d at 927.
A.
We consider first whether the Service permissibly defined
the scope of the action as the operations and management of
the Hatchery for a period of five years. The Conservancy
objects to framing the operation of an ongoing project as a
short-term action, arguing that the Service’s choice of the
action’s scope allowed it to avoid considering whether the
operations of the Hatchery would lead to the extirpation of the
Icicle Creek bull trout population at some point beyond the
five-year period, as well as whether that loss, if it occurred,
would compromise the interim recovery unit. The Service
maintains that its choice of the five-year term was not arbi-
trary and capricious because, as the 2008 BiOp states, the
Hatchery anticipated that the replacement of its water intake
system in 2010 (now delayed, as we have noted) would
require it to reinitiate section 7 consultation.5
[1] Evaluating the scope of an agency action can be signif-
icant in determining the adequacy of a biological opinion.
5
The 2008 BiOp cites another upcoming project, the habitat restoration
project, for which construction is projected to begin in “approximately
2013,” as an additional reason for the 2011 end date, see 2008 BiOp at 15,
but the Service does not mention this reason in its brief.
19600 WILD FISH CONSERVANCY v. SALAZAR
“[T]he scope of the agency action is crucial because the ESA
requires the biological opinion to analyze the effect of the
entire agency action.” Conner v. Burford, 848 F.2d 1441,
1453 (9th Cir. 1988). We “interpret the term ‘agency action’
broadly,” because “caution can only be exercised if the
agency takes a look at all the possible ramifications of the
agency action.” Id. (internal quotation marks and alterations
omitted).
Conner rejected biological opinions addressing only the
first, preliminary stage in a multistage project. The case
involved the federal government’s issuance of more than 700
leases for oil and gas exploration in two national forests.
Before the leases were issued, the Service prepared a biologi-
cal opinion for each forest. Concluding that there was “insuf-
ficient information available to render a comprehensive
biological opinion beyond the initial lease phase,” id. at 1452,
the Service considered the effects only of the leases them-
selves, not of the oil and gas activity to follow on the leased
land. Id. at 1453. Instead of comprehensive biological opin-
ions at the leasing stage, the Service included in the leases
stipulations requiring additional environmental consultation
prior to any “surface-disturbing activities.” Id. at 1455.
We held that the limited scope of the biological opinions
violated the ESA. The Service’s obligation, we said, was “to
analyze the effect of the entire agency action.” Id. at 1453.
Because “[p]umping oil and not leasing tracts is the aim of
congressional mineral leasing policy,” the agency action nec-
essarily encompassed “not only leasing but leasing and all
post-leasing activities through production and abandonment.”
Id. (internal quotation marks and alterations omitted). The
Service’s proposal to conduct “incremental-step consultation”
was an inadequate alternative. That approach might result, for
example, in the “piecemeal chipping away of habitat” for
endangered species. Id. at 1454. The Service was thus “re-
quired to prepare, at the leasing stage, a comprehensive bio-
logical opinion” considering “all phases of the agency
WILD FISH CONSERVANCY v. SALAZAR 19601
action.” Id. Because it had not done so, the biological opin-
ions were invalid.
The Service contends that Conner is inapposite because the
five-year term of operations and management is the entire
agency action.6 What the Service’s argument does not
acknowledge is that the Hatchery has been operating for sev-
enty years and is expected to continue operating into the
future. The Hatchery simply made a decision, endorsed by the
Service, to define the action as a five-year term of operations,
when it might as easily have chosen a thirty-year term or a
one-year term.
[2] The delineation of the scope of an action can have a
determinative effect on the ability of a biological opinion
fully to describe the impact of the action on the viability of
the threatened species, here the bull trout. For example, limit-
ing the analysis of the Hatchery’s impact on the bull trout to
a one-month term of operations would almost certainly be
arbitrary and capricious. The time period under study would
likely be too short to capture any effects on the bull trout,
even though, as the 2008 BiOp under review recognizes, the
Hatchery will have a negative impact over a five-year period.
[3] The Hatchery must ensure that it does not “engage in
an action that reasonably would be expected, directly or indi-
rectly, to reduce appreciably the likelihood of both the sur-
vival and recovery” of the bull trout in the Columbia River
interim recovery unit. 50 C.F.R. § 402.02. The artificial divi-
sion of a continuing operation into short terms can undermine
the consulting agency’s ability to determine accurately the
species’ likelihood of survival and recovery, as the example
just given illustrates.
6
The Service relies primarily on Cabinet Mountains Wilderness v.
Peterson, 685 F.2d 678 (D.C. Cir. 1982), a case we regarded as inapposite
in Conner. See 848 F.2d at 1457. As in Conner, Cabinet Mountains is not
pertinent because it did not address whether the agency correctly deter-
mined the time-limited scope of the action covered by the BiOp.
19602 WILD FISH CONSERVANCY v. SALAZAR
This problem is exacerbated by the fact that the ESA regu-
lation requires consideration of whether the action will “re-
duce appreciably the likelihood of both the survival and
recovery” of the affected species. Id. (emphasis added). There
could be some impact, but not an appreciable impact, in each
of several subdivided periods of operation that, in cumulation,
have an undeniably appreciable impact. For instance, if the
Service were to analyze ongoing Hatchery operations as a
series of ten five-year actions, it might find a likely net
decrease of five to ten bull trout over each five-year period,
and might conclude that an incremental reduction in the local
population of that magnitude would not appreciably reduce
the likelihood of survival and recovery of the interim recovery
unit. But if instead the Service were to consider the entire
reduction in the local population over fifty years, it might then
find an appreciable impact on the interim recovery unit.7
[4] One reason for the potential discrepancy in outcomes
depending on the temporal scope of the analysis is that, in
conducting its jeopardy analysis, the Service considers the
effects of the action “that will be added to the environmental
baseline.” Id. The baseline includes “the past and present
impacts of all Federal, State, or private actions and other
human activities in the action area.” Id. Thus, if the Service
conducts a series of short-term analyses, the baseline effec-
tively resets at the beginning of each period. While the Ser-
vice must consider the baseline in its analysis, “[a]gency
action can only ‘jeopardize’ a species’ existence if that
agency action causes some deterioration in the species’ pre-
action condition.” Nat’l Wildlife Fed’n, 524 F.3d at 930. In
other words, “an agency only ‘jeopardize[s]’ a species if it
causes some new jeopardy.” Id.
7
If the downward trend grew steeper as the population got smaller, as
could be the case if the same proportion of individuals was prevented from
reproducing each year, the overall exponential decline in the population
might be all the more likely to appear “appreciable” when considered from
a longer-term perspective.
WILD FISH CONSERVANCY v. SALAZAR 19603
To illustrate the problem: If the Service were to project that
Hatchery operations over a fifty-year term would result in the
extirpation of the Icicle Creek bull trout population, the loss
of that local population, depending on the role it played in the
larger interim recovery unit, might be significant enough to
“reduce appreciably the likelihood of both the survival and
recovery” of the interim recovery unit. A series of short-term
analyses, on the other hand, could mask the long-term impact
of Hatchery operations. If the Service were to determine in
year 45, for example, that Hatchery operations over the next
five years would eradicate the local bull trout population, the
local population in year 45—the baseline year—might already
have become so small, and its role in the interim recovery unit
therefore so diminished, that its loss could not be said to
reduce appreciably the likelihood of survival and recovery of
the interim recovery unit.
[5] As we observed in other circumstances in National
Wildlife Federation, “[u]nder this approach, a listed species
could be gradually destroyed, so long as each step on the path
to destruction is sufficiently modest. This type of slow slide
into oblivion is one of the very ills the ESA seeks to prevent.”
Id.; see also Am. Rivers v. U.S. Army Corps of Eng’rs, 271 F.
Supp. 2d 230, 255 (D.D.C. 2003) (“If FWS were allowed to
apply such a limited scope of consultation”—in that case, one
year—“to all agency activities, any course of agency action
could ultimately be divided into multiple small actions, none
of which, in and of themselves, would cause jeopardy.”).8
Although it is not for us to dictate precisely how long the term
of the analysis should be in this case, it must be long enough
for the Service to make a meaningful determination as to
8
Serial short-term biological opinions also present another problem: If
the period of operations concerned is short, a BiOp may become moot
before judicial review occurs, or, as here, may be reviewed relatively late
in the period covered. See Am. Rivers v. Nat’l Marine Fisheries Serv., 126
F.3d 1118, 1123-24 (9th Cir. 1997) (holding that a new biological opinion
generally renders moot any challenges to the validity of the previous one).
19604 WILD FISH CONSERVANCY v. SALAZAR
whether the ongoing operation of the Hatchery “reasonably
would be expected . . . to reduce appreciably the likelihood
of both the survival and recovery” of the Columbia River
interim recovery unit. 50 C.F.R. § 402.02 (emphasis added).
Particularly given the long life of this facility and the absence
of any indication that the Hatchery might close down alto-
gether in the foreseeable future, five years is not sufficient.
[6] The Service maintains that the choice of a five-year
term of operations was justified in this case because the
Hatchery plans to reinitiate Section 7 consultation after
replacing its water intake system sometime in the near future.
But the 2008 BiOp does not explain why the Hatchery’s pro-
posed infrastructure improvement project should relieve the
Service of the obligation to prepare a “comprehensive biologi-
cal opinion[ ] considering all stages of the agency action.”
Conner, 848 F.2d at 1454. The 2008 BiOp estimates that the
current water intake system, which is poorly screened, is
likely to kill one bull trout per year and injure another. See
2008 BiOp at 92. Additionally, the intake dam—along with
the boulder field—is one of two barriers encountered by bull
trout who successfully pass upstream of dams 2 and 5. Thus,
the water intake system has a comparatively minor effect on
bull trout. The far greater threat is the closure of dams 2 and
5, which is expected to injure as many as twenty migratory
bull trout per year by “significantly disrupting their breeding
behavior,” in turn preventing an indeterminate number of
births. 2008 BiOp at 92; see also id. at 67-68. Although the
2008 BiOp asserts that the new water intake system “will
result in major changes to [operations and maintenance],” id.
at 14, it makes no suggestion as to what those changes will
entail, including whether there will be any effects on fish pas-
sage.9
9
We recognize that an agency managing an ongoing facility could con-
ceivably plan to change its infrastructure so substantially that it would ulti-
mately have to overhaul its entire operating regime. In such a situation,
there might be so little continuity between the way the facility operated in
WILD FISH CONSERVANCY v. SALAZAR 19605
Additionally, although the Service suggests that including
the effects of the new water intake system in the 2008 BiOp
would have been entirely speculative because there was no
“concrete proposal” to consider, that suggestion is not accu-
rate. On the contrary, the 2008 BiOp states that the Service
and the Bureau of Reclamation had already approved a “pre-
ferred alternative design for the new water intake system” and
set aside funding “for implementation of this alternative.” Id.
at 14. Thus, the Service had enough information about the
proposed new system to include a meaningful analysis of its
potential effects, including any anticipated changes in the
operation of dams 2 and 5 as a result of the new system, in
the 2008 BiOp.
[7] Moreover, regardless of any uncertainty regarding the
proposed infrastructure improvement, it was incumbent on the
Service “to use the best information available to prepare [a]
comprehensive biological opinion[ ] considering all stages of
the agency action.” Conner, 848 F.2d at 1454. We concluded
in Connor that “incomplete information about post-leasing
activities does not excuse the failure to comply with the statu-
tory requirement of a comprehensive biological opinion using
the best information available.” Id. (citing 16 U.S.C.
the present and the way it would operate in the future, and its future opera-
tions might be so unpredictable, that the consulting agency would be justi-
fied in preparing a short-term biological opinion. That is not the case here.
The fact that an agency must reinitiate formal consultation “[i]f the
identified action is subsequently modified in a manner that causes an
effect to the listed species or critical habitat that was not considered in the
biological opinion” does not, standing alone, justify preparing a short-term
biological opinion. 50 C.F.R. § 402.16(c). To avoid the need for further
consultations, an agency can address any already planned subsequent
modifications in its BiOp, something that the Service failed to do, as dis-
cussed in more detail below. Moreover, any renewed consultation and
BiOp with regard specifically to relatively minor subsequent modifications
can be accomplished considerably more expeditiously if there is an exist-
ing BiOp covering the operations for that period than if there is not.
19606 WILD FISH CONSERVANCY v. SALAZAR
§ 1536(a)(2)). We held that the Service was required to “de-
velop projections of oil and gas activities which may indicate
potential conflicts between development and the preservation
of protected species.” Id. Likewise, in this case, the Service
was required to use the best information available, including
information about future infrastructure improvements, to con-
sider the effects of the Hatchery’s ongoing operations on the
bull trout.
The Hatchery and the Service remain under a continuing
duty to reinitiate consultation “[i]f new information reveals
effects of the action that may affect listed species . . . in a
manner or to an extent not previously considered,” or “[i]f the
. . . action is subsequently modified in a manner that causes
an effect to the listed species . . . that was not considered in
the biological opinion.” 50 C.F.R. § 402.16(b), (c); see Con-
ner, 848 F.2d at 1458 n.42; see also N. Alaska Envtl. Ctr. v.
Kempthorne, 457 F.3d 969, 981 (9th Cir. 2006) (upholding a
biological opinion relying on a “reasonable and foreseeable
oil development scenario” and noting that “[i]f future actions
differ from the 2008 BiOp assumptions, BLM must reinitiate
consultation with the FWS” (citing 50 C.F.R. § 402.16(b))).
The duty to reinitiate consultation in the future, however, does
not diminish the Service’s obligation to prepare a comprehen-
sive biological opinion now.
[8] To give meaning to the ESA’s exhortation that agen-
cies ensure that their actions are “not likely to jeopardize the
continued existence of any endangered species or threatened
species,” 16 U.S.C. § 1536(a)(2), the Service was required to
issue a comprehensive biological opinion taking a long view
of the Hatchery’s effects on the bull trout, or to explain ade-
quately why any such effort would be unproductive in assess-
ing the long-term impact of the Hatchery’s operations on the
bull trout. Here, the Service did neither. The decision to limit
the analysis in the 2008 BiOp to a five-year term of opera-
tions and management was therefore arbitrary and capricious.
WILD FISH CONSERVANCY v. SALAZAR 19607
B.
[9] Even if the Service had been justified in defining the
action as a five-year period, it still had to consider the imme-
diate and long-term effects of the action and “articulate[ ] a
rational connection between the facts found and the conclu-
sions made.” Pac. Coast Fed’n of Fishermen’s Ass’ns v.
Bureau of Reclamation, 426 F.3d 1082, 1090 (9th Cir. 2005).
The ESA’s implementing regulations define the “effects of
the action” as the “direct and indirect effects of an action on
the species or critical habitat, together with the effects of
other activities that are interrelated or interdependent with that
action, that will be added to the environmental baseline.” 50
C.F.R. § 402.02. Indirect effects are “those that are caused by
the proposed action and are later in time, but still are reason-
ably certain to occur.” Id.
The 2008 BiOp found that the Icicle Creek bull trout popu-
lation is the smallest local population in the Wenatchee River
core area and the most vulnerable to extirpation. See 2008
BiOp at 66. The population trend has been negative for nearly
70 years, since the Hatchery was constructed. See id. Between
1940 and 2001, only the smaller and less fecund resident bull
trout had access to the spawning areas upstream of the Hatch-
ery; emigrating migratory bull trout were unable to return.
Although there is little data on the size of the resident bull
trout population, the number of spawning individuals is
assumed to be fewer than twenty. As a result, according to the
2008 BiOp, “[i]nbreeding depression, genetic drift, and other
consequences of very small population size are a significant
concern for this population.” Id. at 66.
The survival and recovery of the Icicle Creek bull trout
population is “largely dependent on” the ability of migratory
bull trout to reach the historically accessible spawning areas
upstream of the Hatchery. Id. Because they are larger and
more prolific, returning migratory bull trout would contribute
to the local population by “reducing competition, demo-
19608 WILD FISH CONSERVANCY v. SALAZAR
graphic, distributional, and genetic risks.” Id. The Service
estimates that 100 to 200 migratory bull trout would visit the
spawning grounds annually “if unimpeded passage were pro-
vided over a time period long enough for the population to
respond.” Id. at 50.
During the 2006-2011 period of operations, the Service
expects “low numbers” of migratory bull trout to travel
upstream past the Hatchery’s barriers. Id. at 71. “[T]hese fish
. . . have the potential to migrate to and possibly spawn in
upper Icicle Creek.” Id. Over the two-year period from 2006
to 2007, a total of six migratory bull trout were seen upstream
of the Hatchery within ten miles or less of spawning areas, but
it is unknown what gender they were (and so whether they
were able to mate with each other or resident bull trout) or
whether they spawned. Id. “If only a small number of migra-
tory bull trout can pass the [Hatchery], the probability that the
group has a skewed sex ratio is greater, simply due to random
chance and a small sample size.” Id. The 2008 BiOp found
that “[i]n order to stabilize or achieve a positive population
growth trajectory in Icicle Creek, at least a few pairs of male
and female migratory bull trout would probably need to suc-
cessfully spawn in Icicle Creek annually.” Id. at 49 (emphasis
added). And, the 2008 BiOp also concluded that “the pro-
posed action is still likely to at least reduce, and in some years
preclude, demographic and genetic contributions by migra-
tory bull trout to the small resident bull trout population in
Icicle Creek.” Id. at 71 (emphasis added). If the action would
prevent any migratory bull trout from spawning successfully
in some years and would permit only six trout of unknown
gender to make it upstream in two years, then there is no way
the population could meet the minimum requirements to stabi-
lize: “at least a few pairs of male and female migratory bull
trout . . . successfully spawn[ing] in Icicle Creek annually.”
Id. at 49. Thus, as the 2008 BiOp projected, “long-term nega-
tive [population] trends [within Icicle Creek] are likely to
continue.” Id. at 85.
WILD FISH CONSERVANCY v. SALAZAR 19609
[10] The Service failed adequately to explain how this con-
clusion can be squared with its ultimate determination that the
2006-2011 operations and maintenance “reasonably would
[not] be expected, directly or indirectly, to reduce appreciably
the likelihood of both the survival and recovery” of the
Columbia River interim recovery unit. 50 C.F.R. § 402.02.
Contrary to the dissent’s repeated assertions, we make no
determination regarding whether the Service could have
issued a rational no jeopardy conclusion in light of continuing
negative population trends. See Dissent at 19625-27. It is not
our role to decide whether the findings in the 2008 BiOp
require a jeopardy conclusion. Instead, as noted, we must
determine whether the agency “articulated a rational connec-
tion between the facts found and the conclusions made.” Pac.
Coast Fed’n, 426 F.3d at 1090. We must hold that it did not.
To begin with, although the Service found that the action
would “at least reduce, and in some years preclude” migratory
bull trout spawning and that the local bull trout population
would continue to decline, it concluded inexplicably that the
action was “not likely to change the current distribution and
abundance of the bull trout in the action area.” 2008 BiOp at
84. If the population trend is “negative,” as the Service found,
id. at 85, then, in ordinary English, there will be fewer fish in
2011 than there were in 2006. Yet the Service concluded that
the “current distribution and abundance of the bull trout in the
action area” is “not likely to change.” Translating again into
ordinary English, that means there won’t be fewer fish in
2011 than there were in 2006. How can that be, given the neg-
ative population trend? It cannot.
The 2008 BiOp offered two reasons for its dubious conclu-
sion that the “current distribution and abundance of the bull
trout in the action area” is “not likely to change”: (1) the per-
sistence of the Icicle Creek bull trout population since 1940;
and (2) the detection of six migratory bull trout upstream of
the Hatchery in 2006 and 2007. See id. at 84. Elaborating on
the second reason, the 2008 BiOp asserted that the periodic
19610 WILD FISH CONSERVANCY v. SALAZAR
breeding of migratory and resident bull trout that would “po-
tentially” occur during the term of the action “is likely to con-
tribute to maintaining and improving the viability of this local
population and its contribution to the viability of the core area
and interim recovery unit populations of the bull trout.” Id.
Neither reason adequately explains the contradiction
between the Service’s findings and its conclusion. First, the
fact that the local population has survived since 1940 does not
provide any information about how much longer it can hold
on. If there are now fewer than twenty spawning individuals
and the population continues to decline, then, absent some
intervention, the population will eventually reach zero, its
long prior existence notwithstanding. Moreover, even before
a population is extinguished, it may reach a point at which it
is no longer recoverable: “a species can often cling to survival
even when recovery is far out of reach.” Nat’l Wildlife Fed.,
524 F.3d at 931. The Service has not determined when the tip-
ping point precluding recovery of the Icicle Creek bull trout
population is likely to be reached, nor, necessarily, whether it
will be reached as a result of the 2006-2011 operations and
maintenance of the Hatchery.
Second, the discovery of a small number of migratory bull
trout upstream of the Hatchery in 2006 and 2007 does not, in
light of the 2008 BiOp’s other findings, support the Service’s
conclusion that the 2006-2011 action will not affect bull trout
distribution and abundance in Icicle Creek. The Service found
that the action was likely to “reduce, and in some years pre-
clude, demographic and genetic contributions by migratory
bull trout to the small resident bull trout population.” 2008
BiOp at 71 (emphasis added). True, before 2001, there were
no migratory bull trout spawning successfully, and under the
2006-2011 operations and maintenance there may—possibly
—be a very few, although that is far from certain. But any
positive impact from the small number of migratory bull trout
upstream can only occur if that impact is not offset by the
WILD FISH CONSERVANCY v. SALAZAR 19611
number of bull trout who are not born or die because the
Hatchery impairs upstream migration.
The Service found that between 2001, the first year the
Hatchery began adjusting its dams to allow some upstream
migration, and 2007, the second year of the action period,
there was no net gain: “Not enough migratory bull trout are
likely to have passed upstream of the [Hatchery] and success-
fully spawned between 2001 and 2007, to fully offset the
reduced [bull trout] B[irths] and I[mmigration], plus increased
D[eaths], caused by [operations and maintenance] at [the
Hatchery].” Id. at 49. Moreover, the 2008 BiOp found that
stabilizing the local population would require “at least a few
pairs of male and female migratory bull trout . . . successfully
spawn[ing] in Icicle Creek annually,” id., but the action would
likely preclude any spawning by migratory bull trout in some
years. That is why, presumably, the bottom line of the Ser-
vice’s findings is that as a result of the 2006-2011 action, the
local bull trout population will continue to decline. As noted,
the Service failed to draw a rational link between that finding
and its conclusion that the action would not affect the “current
distribution and abundance of the bull trout in the action
area.”
Nor did the Service articulate a rational connection between
its findings and its ultimate conclusion—that the action would
not cause jeopardy at the recovery unit scale. The Service has
identified the following “survival and recovery needs” for the
Columbia River unit: “maintain or expand the current distri-
bution of the bull trout within core areas; maintain stable or
increasing trends in bull trout abundance; maintain/restore
suitable habitat conditions for all bull trout life history stages
and strategies; and conserve genetic diversity and provide
opportunities for genetic exchange.” Id. at 84. In considering
the impact of the action on the Columbia River interim recov-
ery unit, the Service concluded:
[T]he proposed action is likely to contribute to the
survival of the bull trout by providing some
19612 WILD FISH CONSERVANCY v. SALAZAR
upstream passage opportunities for migratory bull
trout in Icicle Creek, but is not likely to appreciably
increase its recovery at the action area, core area,
interim recovery unit, and range-wide scales because
it will impair upstream passage of migratory bull
trout during the optimal period of in-stream flows.
. . . However, the effect of improved upstream pas-
sage conditions caused by the proposed action . . .
should improve, albeit in only a small way, the con-
tribution of the Icicle Creek local population to the
survival of the bull trout.
For the above reasons, the effects of implementing
the proposed [Hatchery] operations from May 2006
through December 2011, are not likely to substan-
tively change the capacity of the Columbia River
interim recovery unit to provide both the survival
and recovery functions assigned to it. For that rea-
son, the proposed action is not likely to appreciably
reduce the likelihood of both the survival and recov-
ery of the bull trout in the wild.
Id. at 86-87. This conclusion simply does not account for the
finding that the number of bull trout in Icicle Creek would
continue to decrease over the action period. The 2008 BiOp
does not explain how a “negative” population trend in Icicle
Creek could “improve . . . the contribution of the Icicle Creek
bull trout population to the survival of the bull trout.” It may
be that, as we conjectured in the preceding section, the
decrease in the local population over the five-year period
under study would not have an “appreciable” negative impact
on the interim recovery unit. But how it could have a positive
impact remains unclear.
The Service might also have found that even if the Icicle
Creek bull trout population were extirpated, its loss would not
jeopardize the survival or recovery of the Columbia Creek
interim recovery unit. But it did not make that finding, and it
WILD FISH CONSERVANCY v. SALAZAR 19613
is far from obvious that the extirpation of the Icicle Creek
population would be harmless. The 2008 BiOp reports that
bull trout populations in the Columbia River interim recovery
unit are generally declining and are strong in only 6 to 24 per-
cent of the occupied range. See id. at 19. The Wenatchee
River core area is particularly important to the recovery unit
because it is a “relative stronghold” for bull trout in the upper
Columbia River area. Id. at 36. Further, the Icicle Creek local
population is important to the core area because its location
in the lower basin “could insulate this population from distur-
bances in the upper basin that would affect most of the oth-
ers.” Id. at 50. At oral argument, the Service emphasized the
buffer function the Icicle Creek population might play if other
local populations in the core area were threatened.
[11] In sum, the Service was “obligated to articulate a
rational connection between the facts found and the conclu-
sions made.” Pac. Coast Fed., 426 F.3d at 1091 (internal quo-
tation marks and alteration omitted). It did not do so. Because
“an agency’s action must be upheld, if at all, on the basis
articulated by the agency itself,” id., we must reverse and
remand on this basis as well.
C.
The 2008 BiOp was also required to consider the effects of
activities interrelated with the proposed agency action. See 50
C.F.R. § 402.02. The Hatchery uses about 100,000 pounds of
fish food to feed the salmon it rears each year, resulting in
30,000 pounds of solid wastes. See 2008 BiOp at 80. The
Hatchery uses a pollution abatement pond to collect these
wastes. Periodically, waste is removed from the pond and
spread out on dry ground at the Hatchery.
The Conservancy contends that the Service did not address
the effects of cleaning the pollution abatement pond. In partic-
ular, the Conservancy is concerned about the effects of runoff
from the wastes spread on land at the Hatchery. The 2008
19614 WILD FISH CONSERVANCY v. SALAZAR
BiOp reports that the fish food used at the Hatchery “is a
source of very small amounts of PCBs [polychlorinated
biphenyls],” although samples collected from the top layer of
sediments in the pollution abatement pond “did not have sig-
nificantly elevated levels of PCBs.” Id. at 66. The Conser-
vancy worries that runoff associated with the cleaning of the
pollution abatement pond may contain PCBs and pesticides
that could adversely affect bull trout.
[12] We agree with the Service that the 2008 BiOp ade-
quately considered the effects of runoff. In the section entitled
“Release of Effluent into Icicle Creek,” the Service described
the operation of the pollution abatement pond and noted that
it was last cleaned in 2007. Id. at 80. It concluded that “hatch-
ery effluent release into Icicle Creek is unlikely to cause
adverse effects to the bull trout.” Id. at 81.
Although the Service’s discussion of the effects of the pol-
lution abatement pond could have been more detailed, we are
satisfied that the agency did not “entirely fail[ ] to consider an
important aspect of the problem,” as it did give the matter
some consideration. Lands Council v. McNair, 537 F.3d 981,
987 (9th Cir. 2008) (en banc), abrogated in part on other
grounds, Winter v. Nat. Res. Def. Council, 129 S. Ct. 365, 375
(2008). Moreover, there is no indication that the runoff issue
is an important aspect of the jeopardy determination. The Ser-
vice points to the results of a 2005 study of PCB and pesticide
concentrations in Icicle Creek, the pollution abatement pond,
and Hatchery salmon, reported in the Biological Assessment
for Operation and Maintenance of the Leavenworth National
Fish Hatchery. According to the Biological Assessment,
“[d]ata show that [the Hatchery] is not adversely impacting
the PCB or pesticide concentrations in Icicle Creek below the
hatchery and hatchery fish are not accumulating PCB or pesti-
cides to levels of concern.” U.S. Fish & Wildlife Serv., Bio-
logical Assessment for Operation and Maintenance of
Leavenworth National Fish Hatchery 61 (2006).
WILD FISH CONSERVANCY v. SALAZAR 19615
[13] We therefore reject the Conservancy’s contention that
the 2008 BiOp is invalid because it did not adequately address
the effects of the pollution abatement pond.
D.
[14] When the Service concludes that a proposed agency
action will not jeopardize the continued existence of the spe-
cies but is likely to result in incidental takings, it issues an
“incidental take statement” with the biological opinion. 16
U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i). The statement
must “specif[y] the impact of such incidental taking on the
species,” as well as “those reasonable and prudent measures
. . . necessary or appropriate to minimize such impact.” 16
U.S.C. § 1536(b)(4). The statement acts as a safe harbor,
exempting the specified amount of incidental taking from the
take prohibition of ESA section 9. “If during the course of the
action the amount or extent of incidental taking, as specified
[in the statement], is exceeded, the Federal agency must reini-
tiate consultation immediately.” 50 C.F.R. § 402.14(i)(4).
Here, the Service issued an incidental take statement
(“Statement”) setting the following annual limits on incidental
take: (1) one bull trout killed and one harmed by the water
intake system; and (2) twenty migratory bull trout injured
because their access to historically accessible spawning habi-
tat is impaired, significantly disrupting their breeding behav-
ior. See 2008 BiOp at 92. The Conservancy challenges the
adequacy of the Statement on two separate grounds.
1.
First, the Conservancy contends that the Statement does not
account for the full extent of incidental take. The Hatchery
facilitates an active tribal Chinook salmon fishery at the base
of its spillway pool, and the 2008 BiOp estimated that some
bull trout would be harvested incidentally by tribal anglers.
See 2008 BiOp at 73. Take of bull trout in accordance with
19616 WILD FISH CONSERVANCY v. SALAZAR
state and tribal fishing regulations is exempt from the ESA’s
take prohibition. See 50 C.F.R. § 17.44(w)(2). Nonetheless,
the Conservancy maintains that the Hatchery takes bull trout
by closing dam 5 during the bull trout’s spring migration,
which results in large numbers of bull trout lingering in the
spillway pool, where they may fall prey to tribal anglers fish-
ing for Chinook salmon. If this “take” were included in the
Statement, then the Hatchery would be required to comply
with reasonable and prudent measures to minimize the take.
See 16 U.S.C. § 1536(b)(4).
[15] We conclude that it was reasonable for the Service not
to attribute to the Hatchery the take of bull trout by tribal
anglers. Tribal fishing rights in Icicle Creek are guaranteed by
treaties and other agreements. See United States v. Confeder-
ated Tribes of Colville Indian Reservation, 606 F.3d 698 (9th
Cir. 2010). Although the Hatchery’s operations likely do
increase the numbers of bull trout lingering in the spillway
pool, were the Hatchery to change its operations with the
result that the spillway pool became less productive as a Chi-
nook salmon fishing area, the Service might very well be obli-
gated to provide alternative locations for the tribal fishery—
which might also result in the taking of bull trout. Take of
bull trout by tribal anglers is exempt from the ESA wherever
it occurs, as long as tribal regulations are followed. Holding
the Hatchery responsible for take by tribal anglers would be
incongruent with the special rule exempting tribal fishing
from the ESA’s take prohibition. It was therefore not arbitrary
and capricious for the Service to exclude take associated with
the tribal fishery from the Statement.
2.
Second, the Conservancy argues that the Statement does
not include adequate monitoring requirements. The Statement
anticipates that up to twenty migratory bull trout will be
injured each year, because Hatchery operations will signifi-
cantly disrupt their breeding behavior by preventing or delay-
WILD FISH CONSERVANCY v. SALAZAR 19617
ing their spawning migration. Yet, the Statement does not
require the Hatchery to monitor and report the actual number
of bull trout so harmed.
“Incidental Take Statements set forth a ‘trigger’ that, when
reached, results in an unacceptable level of incidental take,
invalidating the safe harbor provision, and requiring the par-
ties to re-initiate consultation.” Ariz. Cattle Growers’ Ass’n v.
U.S. Fish & Wildlife Serv., 273 F.3d 1229, 1249 (9th Cir.
2001). Preferably, the trigger is numerical, but the Service
may use a surrogate—for example, changes in ecological con-
ditions affecting the species. Id. at 1250. If a surrogate is
used, the agency must articulate a rational connection
between the surrogate and the taking of the species. Id. at
1250-51. This court has rejected a surrogate trigger so vague
that it failed to “provide a clear standard for determining
when the authorized level of take has been exceeded,” id. at
1251, and a surrogate so broad—“all spotted owls” associated
with the project—that it “could not adequately trigger reinitia-
tion of consultation.” Or. Natural Res. Council v. Allen, 476
F.3d 1031, 1038 (9th Cir. 2007).
The Service contends that the Statement is adequate
because it provides a clear numerical cap on take—twenty
bull trout prevented from spawning—beyond which consulta-
tion must be reinitiated. Unlike the other anticipated takings
discussed in the Statement, however, the twenty-bull trout
limit is not accompanied by a monitoring and reporting
requirement. For example, the Statement requires the Hatch-
ery to monitor and report the number and types of fish caught
in the water intake system. See 2008 BiOp at 94-95. The
question, then, is whether the consulting agency is responsible
only for providing a clear cap, leaving it up to the action
agency to monitor take and reinitiate consultation when the
trigger is met, or whether the consulting agency must also set
out monitoring and reporting requirements.
[16] The ESA’s implementing regulations provide that
“[i]n order to monitor the impacts of incidental take, the Fed-
19618 WILD FISH CONSERVANCY v. SALAZAR
eral agency or any applicant must report the progress of the
action and its impact on the species to the Service as specified
in the incidental take statement.” 50 C.F.R. § 402.14(i)(3)
(emphasis added). The regulation makes clear that the Service
is responsible for specifying in the statement how the action
agency is to monitor and report the effects of the action on
listed species.
[17] Here, the Service has set a clear numerical cap, but a
numerical cap is useful only insofar as the action agency is
capable of quantifying take to determine when the trigger has
been met. See Or. Natural Res. Council, 476 F.3d at 1039
(explaining that the incidental take statement must “set a clear
standard for determining when the authorized level of take
ha[s] been exceeded”); Natural Res. Def. Council, Inc. v.
Evans, 279 F. Supp. 2d 1129, 1187 (N.D. Cal. 2003), cited
with approval in Or. Natural Res. Council, 476 F.3d at 1038
(“It is arbitrary and capricious to set the trigger at one animal
unless defendants can adequately detect the taking of a single
animal.”). Thus, the Service must either specify monitoring
and reporting requirements with respect to the twenty-bull
trout limit or, if appropriate, select a surrogate trigger that can
be monitored. Therefore, we hold that the ITS failed to estab-
lish a meaningful trigger for renewed consultation after the
take exceeded authorized levels.
E.
[18] Finally, ESA section 7 also imposes on the Hatchery
a substantive duty to ensure that its operations are not likely
to jeopardize the continued existence of the bull trout. “Arbi-
trarily and capriciously relying on a faulty Biological Opinion
violates this duty.” Defenders of Wildlife v. EPA, 420 F.3d
946, 976 (9th Cir. 2005), rev’d on other grounds, Nat’l Ass’n
of Home Builders v. Defenders of Wildlife, 551 U.S. 644
(2007). An agency’s reliance on a biological opinion based on
“admittedly weak” information satisfies its ESA obligations
as long as the challenging party can point to no new informa-
WILD FISH CONSERVANCY v. SALAZAR 19619
tion undercutting the opinion’s conclusions. Pyramid Lake
Paiute Tribe of Indians v. U.S. Dep’t of Navy, 898 F.2d 1410,
1415 (9th Cir. 1990). Where the opinion’s flaws are “legal in
nature,” however, “[d]iscerning them requires no technical or
scientific expertise,” and the failure to do so may result in “an
action based on reasoning ‘not in accordance with law’ and
. . . thus arbitrary and capricious.” Defenders of Wildlife, 420
F.3d at 976.
[19] Here, the Service committed legal error by limiting
the scope of the action to five years; failing to articulate a
rational connection between its findings in the 2008 BiOp and
its no jeopardy conclusion; and issuing an inadequate inciden-
tal take statement. The Hatchery’s reliance on a legally flawed
biological opinion was arbitrary and capricious. The Hatchery
therefore violated its substantive duty to ensure that its opera-
tions and maintenance did not jeopardize the continued exis-
tence of the bull trout.
III.
[20] We conclude that the 2008 BiOp is arbitrary and
capricious because the Service limited the analysis to a five-
year period, failed to articulate a rational connection between
the facts found and the conclusions made, and issued an inci-
dental take statement lacking adequate monitoring and report-
ing requirements. Additionally, the Hatchery violated its
substantive duty to ensure that its operations did not jeopar-
dize the continued existence of the bull trout. We reverse and
remand to the district court with directions to grant the Con-
servancy’s motion for summary judgment and to grant injunc-
tive relief until the Service complies with its obligations under
the ESA.
REVERSED and REMANDED.
19620 WILD FISH CONSERVANCY v. SALAZAR
FISHER, Circuit Judge, concurring in part and dissenting in
part:
Prompted by this litigation, the U.S. Fish and Wildlife Ser-
vice has attempted to minimize the effect of the Leavenworth
National Fish Hatchery (“the Hatchery”) on the small popula-
tion of bull trout in Icicle Creek. My colleagues in the major-
ity find these efforts insufficient to meet the strictures of the
Endangered Species Act (“ESA”) and place two substantial
burdens on the Fish and Wildlife Service (“the Service”) that
the ESA does not require. First, the majority requires the Ser-
vice to address operations and maintenance on an unlimited
time horizon, despite planned modifications that will further
reduce the Hatchery’s impact on the bull trout. Second, the
majority requires the Service to attribute continuation of a 70-
year population decline to planned Hatchery operations, rather
than recognizing that trend and the structures that caused it as
the environmental baseline. I respectfully dissent from these
aspects of the majority’s opinion.
I.
The majority first concludes that the Service acted arbitrar-
ily or capriciously by limiting its analysis to the five-year
term of the 2006 to 2011 Operations and Maintenance Plan
(“the O&M Plan”). See Op. at 19599-19606. As the majority
notes, Section 7 of the ESA requires consultation concerning
any agency action that may “jeopardize the continued exis-
tence of an endangered species or threatened species or result
in the destruction or adverse modification of habitat of such
species.” 16 U.S.C. § 1536(a)(2). The ESA defines agency
action as “any action authorized, funded, or carried out by
such agency.” Id. The applicable regulation further defines
“action” as
all activities or programs of any kind authorized,
funded, or carried out, in whole or in part, by Federal
agencies in the United States or upon the high seas.
WILD FISH CONSERVANCY v. SALAZAR 19621
Examples include, but are not limited to . . . actions
directly or indirectly causing modifications to the
land, water, or air.
50 C.F.R. § 402.02.
Here the Service had a reasonable rationale to limit the
scope of the agency action considered in the 2008 Biological
Opinion to a five-year period: the projected completion of a
new water intake system in 2011 that will reduce annual
adverse impacts on the bull trout when completed. See U.S.
Fish & Wildlife Serv., Biological Opinion for the Operation
and Maintenance of theLeavenworth National Fish Hatchery
Through 2011, at 14-15 (2008) (“2008 BiOp.”). As both the
2008 BiOp and the accompanying Incidental Take Statement
(“ITS”) acknowledge, the current water intake system harms
bull trout annually, and the majority recognizes that improv-
ing this system will require a new BiOp. See Op. at 19595 n.2.
The Service also intends to undertake a broader habitat resto-
ration project at the Hatchery. Although this project cannot
begin until adequate funding has been secured and further
consultation has occurred, see 2008 BiOp at 15, it demon-
strates the significant differences between the environmental
impacts during the period covered by the O&M Plan and
future operations. Perhaps most importantly, allowing the Ser-
vice in these circumstances to define an action as the multi-
year operation of an ongoing program promotes renewed
analysis based on a growing foundation of data, analysis and
mitigation experiments. The majority’s contention that the
Service “might as easily have chosen a thirty-year term or a
one-year term,” Op. at 19601, is unfairly dismissive of the
agency’s reasonable response to the facts on the ground (and
in the river).
It seems quite reasonable for the Service to assess the pres-
ent and future impacts of a fixed period of operations rather
than to assess operations on an indefinite time horizon, which
would require the demonstrably false assumption that the Ser-
19622 WILD FISH CONSERVANCY v. SALAZAR
vice will never meaningfully change Hatchery operations. Cf.
Pac. Coast Fed’n of Fishermen’s Ass’ns v. U.S. Bureau of
Reclamation, 426 F.3d 1082, 1088-92 (9th Cir. 2005) (fault-
ing a 10-year BiOp for failing to explain why mitigating
action was delayed until year nine, not for being limited to 10
years). The majority’s repeated assertion that a BiOp address-
ing five years of operation and management is not a “ ‘com-
prehensive biological opinion[ ] considering all stages of the
agency action,’ ” Op. at 19604, 19605 (quoting Conner v.
Burford, 848 F.2d 1441, 1454 (9th Cir. 1988)), begs the ques-
tion and fails to afford the Service appropriate flexibility to
define the scope of its action. The majority guarantees that an
ongoing program that fails to remedy immediately a slowly
declining population will be found to jeopardize the existence
of a threatened or endangered species.
A BiOp addressing a fixed term of operations can and must
address long-term implications. However, ESA consultation
need address only long-term effects of the agency action at
issue, rather than additional agency actions that may or may
not occur in the future. See 50 C.F.R. § 402.02 (defining “in-
direct effects” as “those that are caused by the proposed
action and are later in time, but are still reasonably certain to
occur” (emphasis added)); Nat’l Wildlife Fed’n v. Nat’l
Marine Fisheries Serv., 524 F.3d 917, 930 (9th Cir. 2008)
(“[T]he proper baseline analysis is . . . what jeopardy might
result from the agency’s proposed actions in the present and
future human and natural contexts.” (internal quotation marks
and citations omitted)). The 2008 BiOp expressly considered
these “indirect effects.” 2008 BiOp at 67. Although the BiOp
acknowledged that the proposed action is unlikely “to prevent
the number of migratory spawners from being large enough
to cause an increasing population trend, or to fully alleviate
long-term genetic risks to the population,” id. at 85, given that
the population has persisted for over 70 years without access
to migratory spawners, it was not irrational for the Service to
conclude that five additional years of limited access would
not “reduce appreciably the likelihood of both the survival
WILD FISH CONSERVANCY v. SALAZAR 19623
and recovery” of the local population, let alone the interim
recovery unit. 50 C.F.R. § 402.02; cf. Am. Rivers v. U.S. Army
Corps of Engrs., 271 F. Supp. 2d 230, 254-55 (D.D.C. 2003)
(finding that plaintiffs were likely to succeed on the merits
because the Army Corps “narrowly focus[ed] its analysis on
the impacts of the 2003 high summer flows on . . . this year
only, instead of evaluating both the present and future effects
of the 2003 low summer flows” (emphasis added)). Future
BiOps may find that continued operation of the Hatchery will
push the Icicle Creek population to a tipping point, but the
2008 BiOp provides a rational explanation why this particular
O&M Plan will not appreciably increase the likelihood that
such a point will be reached.
Rejecting appellant’s challenge to the 2008 BiOp would
not, as the majority envisions, authorize death of the bull trout
by a thousand cuts. A short-term BiOp is reasonable in this
case because the Service plans major improvements in the
near term that will significantly alleviate the bull trout take.
Should the Service continue to resort to short-term BiOps in
the future, however, that approach would be increasingly
unlikely to satisfy the ESA, regardless of the justification.
Allowing this short-term BiOp would not foreclose future
analysis of any period of time in which the agency’s action
would reduce “appreciably the likelihood” of survival and
recovery. Contra Op. 19602 (emphasis in original). Indeed, a
reasonable definition of an appreciable effect surely would
include “a likely net decrease of five to ten bull trout over [a]
five-year period”, id., when the starting population is believed
to number fewer than 20 spawning individuals. See 2008
BiOp at 66. There is, however, no support in the record for
the notion that such a decline is likely during the period
addressed by the 2008 BiOp, let alone that the Service would
continue to reach no-jeopardy conclusions if similar, cumula-
tive decreases were to occur a second or third time.
Finally, the majority fears that the Service would permit
serial reductions in the Icicle Creek population until its “role
19624 WILD FISH CONSERVANCY v. SALAZAR
in the interim recovery unit [is] so diminished, that its loss
could not be said to reduce appreciably the likelihood of sur-
vival and recovery of the interim recovery unit.” Op. 19603
(emphasis in original). But, if the small Icicle Creek popula-
tion plays a significant role, that importance must be based on
genetic and geographic diversity, not the population’s contri-
bution to gross numbers. Even if one or more short-term
assessments permitted small further reductions in the Icicle
Creek population, its genetic and geographic importance to
the interim recovery unit would remain unchanged, and the
loss of this diversity would have to be taken into account in
future jeopardy assessments.
The majority tries to shoehorn this case into the rule we
established in Conner v. Burford, 848 F.2d 1441 (9th Cir.
1988). See Op. at 19599-19601. Conner is not on point. There
we held that an incremental approach to a BiOp was not per-
missible when the scope of the planned agency action — a
lease of federal land for oil exploration, development and pro-
duction — included activity beyond the exploration phase
reviewed in the BiOp. See id. at 1443-44, 1452. Unlike Con-
ner, the O&M Plan does not authorize activity beyond the
duration or scope of the BiOp; the purpose of the planned
activities is complete at the end of the authorized agency
action. Cf. id. at 1453 (“ ‘[P]umping oil’ and not ‘leasing
tracts’ is the aim of congressional [mineral leasing].” (quoting
North Slope Borough v. Andrus, 642 F.2d 589, 608 (9th Cir.
1980) (alterations in original)).
The D.C. Circuit’s decision in Cabinet Mountains Wilder-
ness v. Peterson, 685 F.2d 678, 681 (D.C. Cir. 1982), pro-
vides a more apt analysis. Cabinet Mountains Wilderness
approved a BiOp that addressed only a three-year exploration
plan because “[a]pproval was expressly limited to the pro-
posed exploratory drilling activities[, and] further activities
such as developmental exploration or mineral extraction
would require a comprehensive examination of environmental
effects.” Id. at 681. Although the D.C. Circuit did not place
WILD FISH CONSERVANCY v. SALAZAR 19625
its express imprimatur on the duration of the drilling plan, it
rejected the plaintiffs’ contention that the BiOp failed to
account for cumulative impacts to grizzly habitat and deter-
mined that only concurrent “timber sales and roads were rele-
vant in addressing the problem of cumulative impacts.” Id. at
683-84. The majority’s dismissal of Cabinet Mountains Wil-
derness in a footnote, see Op. at 19601 n.6, fails to grapple
with the decision. I recognize that Cabinet Mountain Wilder-
ness did not expressly hold that an agency may segregate a
fixed period of operations in a BiOp, but Conner did not
expressly hold that an agency may not do so. Cabinet Moun-
tain Wilderness remains the more analogous authority.
We are faced with a BiOp addressing a distinct five-year
plan for operations and management, using existing infra-
structure prior to planned improvements. Unlike Connor, the
BiOp addresses the approved agency action in its entirety.
And like Cabinet Mountain Wilderness, the O&M Plan is
expressly limited to a limited period and range of activities;
any further operation will require renewed environmental
review. I therefore part company with my colleagues’ conclu-
sion that the decision to address only five years of manage-
ment activities was arbitrary and capricious.
II.
The majority holds that it is impossible to issue a rational
no jeopardy conclusion in light of the Service’s finding that
“long-term negative [population] trends [within Icicle Creek]
are likely to continue.” Op. at 19608 (quoting 2008 BiOp at
85) (modifications in original). The majority, however, fails
to address the appropriate environmental baseline and merely
assumes that the long-term trend is attributable to the current
action. See Op. at 19607-13. The 2008 BiOp includes the
Hatchery’s historical structures and operations in the environ-
mental baseline, see 2008 BiOp at 66, and Wild Fish Conser-
vancy has abandoned on appeal its argument that this
inclusion was improper.
19626 WILD FISH CONSERVANCY v. SALAZAR
Department of the Interior regulations define the environ-
mental baseline as including
the past and present impacts of all Federal, State, or
private actions and other human activities in the
action area, the anticipated impacts of all proposed
Federal projects in the action area that have already
undergone formal or early section 7 consultation,
and the impact of State or private actions which are
contemporaneous with the consultation in process.
50 C.F.R. § 402.02. Of course planned operation and mainte-
nance of the Hatchery cannot be included in the baseline. See
Nat’l Wildlife Fed’n, 524 F.3d at 930-31 (“Although we
acknowledge that the existence of the dams must be included
in the environmental baseline, the operation of the dams is
within the federal agencies’ discretion . . . .”). The 2008 BiOp
correctly determined that the O&M Plan will harm the Icicle
Creek bull trout population. See, e.g., 2008 BiOp at 85 (“The
proposed action is likely to cause impaired passage conditions
for the bull trout in Icicle Creek each year . . . .”). The BiOp,
however, included the continued presence of Hatchery facili-
ties, including obstructions to bull trout migration put in place
during past operations, as components of the environmental
baseline. See 2008 BiOp at 32; Nat’l Wildlife Fed’n, 524 F.3d
at 930 (“The current existence of the [federal] dams consti-
tutes an ‘existing human activity’ which is already endanger-
ing the fishes’ survival and recovery.” (quoting Alcoa v.
Administrator, Bonnevile Power Admin., 175 F.3d 1156, 1162
n.6 (9th Cir. 1999))). Similarly, the BiOp included in the
baseline a 70-year population decline and the risks that
accompany a small remaining population. See BiOp at 66.
With the scope of both the proposed agency action and the
environmental baseline in mind, the Service successfully “ar-
ticulated a rational connection between the facts found and
the [no jeopardy] conclusions made.” Pac. Coast, 426 F.3d at
1090 (citing Motor Vehicle Mfrs. Ass’n v. State Farm Mutual
WILD FISH CONSERVANCY v. SALAZAR 19627
Auto. Ins. Co., 463 U.S. 29, 43 (1983)). The continuation of
long-term negative population trends results from the continu-
ing presence of obstacles to fish passage through Icicle Creek,
and the Service’s inaction — its failure to remove those obsta-
cles — is not a part of activity whose effects are considered
in the BiOp. There is no contradiction between the remaining
effects and the Service’s conclusion that the present and long-
term effects of the O&M Plan are not likely to reduce appre-
ciably the bull trout’s likelihood of survival and recovery of
the interim recovery unit.
Nor was it irrational for the Service to conclude that the
O&M Plan, in concert with the environmental baseline, was
“not likely to change the current distribution and abundance
of the bull trout in the action area.” 2008 BiOp at 84. By
reducing the period in which preexisting obstacles bar passage
of bull trout to spawning grounds, the O&M Plan reduced the
rate of decline, and we have no reason to disbelieve the Ser-
vice’s conclusion that the marginal decline over a five year
period — while improvements are made to the intake system
and plans are laid for habitat rehabilitation — would affect
distribution and abundance in an ecologically meaningful
manner. This does not guarantee that there “won’t be fewer
fish in 2011 than there were in 2006.” Op. at 19609. But that
claim was never made by the Service and is not necessary to
its no-jeopardy conclusion.
The majority also contends that the 2008 BiOp fails to “ex-
plain how a ‘negative’ population trend in Icicle Creek could
‘improve . . . the contribution of the Icicle Creek bull trout
population to the survival of the bull trout.’ ” Op. at 19612
(quoting 2008 BiOp 86-87). The majority, however, omits a
crucial phrase from the quoted text. The BiOp states in full:
However, the effect of improved upstream passage
conditions caused by the proposed action, as evi-
denced by some migratory bull trout observations in
spawning habitat within Icicle Creek above the
19628 WILD FISH CONSERVANCY v. SALAZAR
[Hatchery] in 2006 and 2007, when added to the
environmental baseline should improve, albeit in
only a small way, the contribution of the Icicle Creek
local population to the survival of the bull trout.
Slowing a localized decline improves a population’s contribu-
tion to the broader survival of the species, both by preserving
genetic diversity in the short term and widening the time
frame in which further improvements can be made to reverse
the trend entirely. More importantly, any contradiction in this
analysis is irrelevant to the Service’s broader conclusion that
“the proposed action . . . is not likely to appreciably increase
[the Bull Trout’s] recovery at the action area, core area,
interim recovery unit, and range-wide scales.” 2008 BiOp at
86.
*****
In sum, the Service provided a rational basis for its no jeop-
ardy conclusion. To conclude otherwise requires neglecting
the environmental baseline and distrusting agency experts’
analysis of the scope and relevance of continued population
decline, mitigated by remedial agency action. I therefore dis-
agree with my colleague’s conclusion that the Service’s anal-
ysis in the 2008 BiOp is irrational. For these reasons, I
respectfully dissent from Parts II.A, II.B, II.E and III. of the
majority opinion, but otherwise concur.