Case 3:01-cv-00640-SI

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THE HONORABLE MICHAEL H. SIMON

Brian C. Gruber, WSBA # 32210

Beth Baldwin, WSBA # 46810

ZIONTZ CHESTNUT

2101 Fourth Avenue, Suite 1230

Seattle, Washington 98121

Tel. (206) 448-1230

Fax (206) 448-0962

Attorneys for Amicus Curiae Confederated

Tribes of the Colville Reservation

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

NATIONAL WILDLIFE FEDERATION,

et al.,

Case No. 3:01-cv-00640-SI

Plaintiffs,

NATIONAL MARINE FISHERIES

SERVICE, et al.,

BRIEF OF AMICUS CURIAE

CONFEDERATED TRIBES OF THE

COLVILLE RESERVATION IN

SUPPORT OF DEFENDANTS’ MOTION

FOR SUMMARY JUDGMENT

Defendants.

BRIEF OF AMICUS CURIAE CONFEDERATED

TRIBES OF THE COLVILLE RESERVATION

IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY

JUDGMENT

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TABLE OF CONTENTS

INTRODUCTION......................................................................................................................... 1

BACKGROUND ........................................................................................................................... 2

THE CONFEDERATED TRIBES OF THE COLVILLE RESERVATION. ..................... 2

II. COLVILLE PARTICIPATION IN THE REMAND PROCESS AND ROLE IN

IMPLEMENTING THE 2008-2014 BIOPS. ....................................................................... 3

STANDARD OF REVIEW .......................................................................................................... 8

ARGUMENT ............................................................................................................................... 10

NOAA’S ANALYSIS IS CONSISTENT WITH THE SECTION 7 JEOPARDY

STANDARD. ..................................................................................................................... 11

A. The Recovery Analysis in the 2008 BiOp Meets the Requirements of Section 7 and Its

Implementing Regulations. ............................................................................................ 11

B. No Legal Authority Supports Plaintiffs’ Attack on the Trending Toward Recovery

Analysis.......................................................................................................................... 14

C. Plaintiffs’ Alternative to NOAA’s Analysis Is Contrary to Law and Unworkable. ...... 16

II. NOAA’S ADVERSE MODIFICATION ANALYSIS IS CONSISTENT WITH SECTION

7 OF THE ESA AND IS NOT ARBITRARY OR CAPRICIOUS. ................................... 18

III. NOAA’S JEOPARDY ANALYSIS IS BASED ON TRIBUTARY HABITAT

RESTORATION AND HATCHERY PROJECTS THAT ARE REASONABLY

CERTAIN TO OCCUR...................................................................................................... 23

A. Okanogan Basin Tributary Habitat Projects and Monitoring and Evaluation. .............. 25

B. Chief Joseph Hatchery and the Reintroduction of Spring Chinook to the Okanogan

River............................................................................................................................... 27

IV. NOAA’S DISCUSSION OF DENSITY DEPENDENCE IS BASED ON THE BEST

AVAILABLE SCIENCE AND RATIONALLY SUPPORTS NOAA’S CONCLUSIONS

ABOUT PRODUCTIVITY AND TRIBUTARY HABITAT. ............................................ 29

V. A SINGLE EIS FOR THE ENTIRE RPA IS IMPRACTICAL. ........................................ 32

CONCLUSION ........................................................................................................................... 35

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TABLE OF AUTHORITIES

Cases

Alabama–Tombigbee Rivers Coalition v. Kempthorne, 477 F.3d 1250 (11th Cir.2007) ............. 31

American Rivers v. NMFS, No. Civ. 96-384-MA, 1997 WL 33797790 (D. Or. Apr. 3, 1997)...... 4

American Rivers v. NOAA Fisheries, 2006 WL 1455629 (D. Or. 2006) ...................................... 14

Cascadia Wildlands v. Thrailkill, ___F. Supp. 3d ___, 2014 WL 4724855

(D. Or. Sept. 23, 2014) ...................................................................................................... 21

Churchill Cnty. v. Norton, 276 F.3d 1060 (9th Cir.2001) ............................................................ 13

Gifford Pinchot Task Force v. U.S. Fish and Wildlife Serv., 384 F.3d 1059 (9th Cir. 2004) ...... 20

Greenpeace Action v. Franklin, 14 F.3d 1324 (9th Cir.1992) ...................................................... 10

Home Builders Ass’n v. FWS, 616 F.3d 983 (9th Cir. 2010) ........................................................ 15

Humane Soc’y of U.S. v. Bryson, 924 F.Supp.2d 1228 (D. Or 2013) ........................................... 35

Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) ................................................ 8, 9, 10, 13

Miller-Wohl Co. v. Comm'r of Labor & Indus. State of Mont., 694 F.2d 203

(9th Cir. 1982)..................................................................................................................... 8

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29 (1983) .................... 8, 9

Nat’l Audubon Soc’y v. Butler, 160 F. Supp. 2d 1180 (W.D. Wash. 2001) ................................. 33

Nat’l Wildlife Fed’n v. NMFS, 2005 WL 3576843 (D. Or. Dec. 29, 2005) ................................... 5

Nat’l Wildlife Fed’n v. NMFS, 254 F.Supp.2d 1196 (D. Or. 2003) ........................................ 18, 24

Nat’l Wildlife Fed’n v. NMFS, 524 F.3d 917 (9th Cir. 2008) ................... 11, 12, 14, 15, 16, 20, 21

Nat’l Wildlife Fed’n v. U.S. Army Corps of Eng’rs, 384 F.3d 1163 (9th Cir. 2004) ...................... 9

Nez Perce Tribe v. NOAA Fisheries, 2008 WL 938430 (D. Idaho Apr. 7, 2008) .................. 20, 21

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NW Envtl. Def. Council v. U.S. Army Corps of Engineers, No. 3:10-cv-01129-AC,

2013 WL 1294647 (D. Or. March 27, 2013) .................................................................. 22

Pac. Coast Fed’n of Fishermen’s Ass’ns. v. U.S. Bureau of Reclamation,

426 F.3d 1082 (9th Cir. 2005) ............................................................................................ 8

Ryan v. Commodity Futures Trading Comm'n, 125 F.3d 1062 (7th Cir.1997) .............................. 8

San Luis & Delta-Mendota Water Authority v. Jewell, 747 F.3d 581

(9th Cir. 2014)......................................................................................... 8, 9, 10, 21, 30, 31

San Luis & Delta-Mendota Water Authority v. Locke, ___F.3d___,

2014 WL 7240003 (9th Cir. Dec. 22, 2014) ................................................................. 9, 10

Trout Unlimited v. Lohn, 559 F.3d 946 (9th Cir. 2009)............................................................ 9, 10

Trout Unlimited v. Lohn, 645 F. Supp. 2d 929 (D. Or. 2007) ...................................................... 30

TVA v. Hill, 437 U.S. 153 (1978).................................................................................................. 14

Wilderness Soc’y v. Tyrrel, 918 F.2d 813 (9th Cir.1990) ............................................................. 13

Statutes

16 U.S.C. § 1536(a)(2) .................................................................................................. 9, 11, 12, 20

5 U.S.C. § 706(2)(A)....................................................................................................................... 8

Rules and Regulations

50 C.F.R. § 21.41 .......................................................................................................................... 34

50 C.F.R. § 223.301(c).................................................................................................................. 28

50 C.F.R. § 402.02 .................................................................................................................. 11, 20

50 C.F.R. § 402.14(g)(8) ................................................................................................................. 9

50 C.F.R. § 424.12(b) ................................................................................................................... 19

51 Fed. Reg. 19,934 ................................................................................................................ 12, 16

70 Fed. Reg. 52,630 ................................................................................................................ 19, 23

79 Fed. Reg. 40,004 ................................................................................................................ 28, 29

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INTRODUCTION

Amicus curiae Confederated Tribes of the Colville Reservation (“Colville” or “Tribes”)

submits this brief in support of the Federal Defendants’ cross-motion for summary judgment and

in opposition to Plaintiffs’ motions for summary judgment (Dkt. 1976 and Dkt. 1985).

Colville has a unique perspective on the Federal Columbia River Power System (FCRPS)

and this litigation, which Colville joined in November 2005 as part of the Court’s remand

process.

Colville has witnessed firsthand the devastation wrought by the FCRPS, which

eliminated once abundant salmon runs from large portions of the Colville Reservation through

the construction of Grand Coulee Dam in the early 1940s and later Chief Joseph Dam. Colville

has also witnessed record returns of summer/fall Chinook and sockeye to the Okanogan River

basin in recent years, confirming the Tribes’ view that the future of salmon and steelhead in the

Columbia is bright – even for those that must pass nine dams twice in their lifetime.

From this vantage point, Colville has actively engaged in the historic regional

collaboration ordered by this Court and has committed to doing its part for the massive basinwide effort to mitigate the effects of the FCRPS on species of salmon and steelhead listed under

the Endangered Species Act (ESA). This effort must – and Colville believes it will – succeed.

Although some salmon populations are returning to the Colville Reservation in large numbers,

others are still at risk. Through the remand process, the action agencies responded to Colville’s

criticism of the historic imbalance between the Snake and Lower Columbia salmon populations

and the comparably imperiled Upper Columbia ESUs with increased attention to the Upper

Columbia. With this support in the current BiOp and reinforced by the Fish Accords, Colville

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has made significant progress toward fulfilling its objectives for steelhead and spring Chinook in

the Okanogan River basin.

In addition to Colville’s vital interest in the survival and recovery of Upper Columbia

River (“UCR”) salmon and steelhead populations under the BiOp, Colville was concerned that

Plaintiffs would seek greater spill and/or flow augmentation in the mainstem Columbia from a

drawdown of Lake Roosevelt. The integrated management of Grand Coulee Dam within the

FCRPS affects core Colville interests, and previous requests by Plaintiffs for injunctive relief

would have dramatically impacted those interests. The potential for Plaintiffs to request similar

relief in this round of litigation is clear and present based on the extensive discussion initiated by

Oregon’s proposal for a 10-year experiment involving spill levels higher than those ordered by

this Court.

We are now through nearly seven years of this 10-year BiOp, including both the 2010

and 2014 supplemental BiOps, and the perpetual cycle of litigation and remand appears to have

no end. Plaintiffs’ briefs focus almost exclusively on Snake River populations and the effects of

the mainstem hydroelectric projects, ignoring the scope of on-the-ground advances made

throughout the basin by the broad collaboration of the federal agencies, three of the four Pacific

Northwest states and all but one of the Columbia Basin tribes participating in the case. Plaintiffs

would have this Court turn away from the comprehensive mitigation solution preferred by the

vast majority of the region’s sovereigns without giving this BiOp and its unprecedented suite of

actions the opportunity to work for the benefit of the fish.

BACKGROUND

THE CONFEDERATED TRIBES OF THE COLVILLE RESERVATION.

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The Colville Reservation is located in north-central Washington and presently consists of

approximately 1.4 million acres bounded by the Okanogan and Columbia Rivers.

The

Reservation includes two major components of the FCRPS, Chief Joseph and Grand Coulee

Dams, both of which completely block anadromous fish passage. Their associated reservoirs,

Lake Rufus Woods and Lake Roosevelt, have inundated thousands of acres of the most

economically important and culturally significant tribal lands. 1

Colville culture and subsistence were intricately linked with anadromous fish runs in the

upper Columbia River and the fisheries they provided. The development of the FCRPS has had

devastating impacts on these fish runs and the Tribes’ fisheries and way of life. In addition to

the complete blockage of anadromous fish passage upstream of Chief Joseph Dam, which

eliminated access to hundreds of miles of productive spawning and rearing habitat, out-migrating

juveniles and returning adults must navigate four federal and five non-federal dams downstream

of the Reservation. The effects of these nine mainstem dams, compounded by local habitat

degradation and other adverse impacts, have led to the extirpation of spring Chinook salmon and

continue to pose a serious threat to steelhead in the Okanogan River basin, the only Reservation

watershed not blocked by federal dams. Peone Decl. ¶¶ 5-6; see also Colville MOA at 2.

II.

COLVILLE PARTICIPATION IN THE REMAND PROCESS AND ROLE IN

IMPLEMENTING THE 2008-2014 BIOPS.

When Colville entered into the Court-ordered collaboration process in 2005, little

progress had been made towards the recovery of endangered UCR spring Chinook salmon and

threatened UCR steelhead relative to listed salmon and steelhead elsewhere in the Columbia

See Declaration of Joe Peone, Dkt. 1561 (“Peone Decl.”) ¶ 3; see also Colville MOA (Corps

2008 Administrative Record (AR) A.394) at 1-2.

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Basin. Available federal mitigation funding, federal dam improvements, and recovery strategies

were focused on the watersheds of the lower Columbia and Snake Rivers. In addition, federal

research to improve passage survival was targeted on Snake River species. Peone Decl. ¶ 9.

Colville’s main objectives in the collaboration process were to ensure that the BiOp would

adequately address the survival and recovery of UCR spring Chinook salmon and steelhead, and

direct needed attention to restoring steelhead and spring Chinook salmon in the Okanogan River

basin. The Tribes also hoped to assure that changes to FCRPS operations intended to aid salmon

and steelhead survival throughout the Columbia Basin would not unnecessarily affect Lake

Roosevelt, a critical part of the Colville Reservation. Id. ¶ 10.

These two fundamental objectives led Colville to join this litigation as amicus in

November 2005 concurrent with Plaintiffs’ request for further injunctive relief. Dkt. 1105, 1106.

In its motion requesting leave to participate as amicus, Colville explained its significant rights

and interests that would be affected by the remand process, including fishing rights, anadromous

and resident fish species, cultural resources, revenue from the 1994 Grand Coulee Dam

settlement agreement, recreation resources, and the risk of exposure to contaminated sediments

in Lake Roosevelt.

See Dkt. 1126, 1127. 2 Colville joined the Regional Coalition brief

responding to the Plaintiffs’ motion for further injunctive relief and submitted five declarations

describing the adverse impacts that the requested injunction would have on Colville, particularly

Colville previously participated as amicus in the litigation over the 1995 BiOp, raising many of

the same concerns about further drawdowns of Lake Roosevelt. American Rivers v. NMFS, No.

Civ. 96-384-MA, 1997 WL 33797790, *2, *12 (D. Or. Apr. 3, 1997).

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the proposal to augment summer flows by drawing down Lake Roosevelt in August. 3 The Court

granted Plaintiffs’ motion in part, but denied the request for flow augmentation. Dkt. 1221 at 1116. 4

Colville was an active participant in the collaboration process and made important

contributions to the Policy Working Group and various technical committees and ad hoc

workgroups. The Tribes provided numerous and substantial comments to the federal agencies

throughout the collaboration process, seeking to awaken the federal government to the recovery

needs of the endangered UCR spring Chinook and threatened steelhead ESUs, particularly the

largely extirpated Okanogan populations of these species. See, e.g., Corps 2008 AR C.15599;

NOAA 2008 AR C.915 (letters on early drafts of proposed action and RPA identifying

deficiencies and urging changes to meet the needs of UCR spring Chinook and steelhead).

As NOAA Fisheries finalized the 2008 BiOp, the Colville Tribes entered into

negotiations with the BPA, the Corps and the Bureau of Reclamation (the “Action Agencies”) to

seek agreement on additional measures that would address the Tribes’ concerns regarding the

UCR spring Chinook and steelhead ESUs. The negotiations focused on implementation of the

Tribes’ Okanogan Initiative (Reclamation 2008 AR 74565-74629), which provided the Action

Agencies with extensive and concrete opportunities for habitat improvements, safety-net

propagation programs, hatchery reforms, and spring Chinook salmon reintroductions that would

help achieve the survival and eventual recovery of these two endangered ESUs. The outcome of

See The Regional Coalition’s Joint Response to Motion for Further Injunctive Relief (Dkt.

1162); Decl. of Whitfield A. Russell (Dkt. 1149); Decl. of Thomas M. Watson (Dkt. 1150); Decl.

of Gerald Marco (Dkt. 1152); Decl. of Guy Moura (Dkt. 1154); Decl. of Gene Joseph (Dkt.

1173).

Nat’l Wildlife Fed’n v. NMFS, 2005 WL 3576843, *5-*8. (D. Or. Dec. 29, 2005).

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this negotiation process was a Memorandum of Agreement (MOA), one of several which make

up what are now called the Columbia Basin Fish Accords (“Colville MOA”). 5

The Colville MOA provides greater certainty that habitat and hatchery measures provided

for in the 2008 BiOp would actually be implemented and provide real, measurable benefits to the

listed species, linked to the RPA’s target of 14% Habitat Quality Improvement for UCR

steelhead in the Okanogan River basin.

For the purposes of the BiOp, the MOA’s core

provisions provide upward of $141 million for ESA-listed anadromous species over its ten-year

term focused on specific habitat and hatchery actions that will lead to restoration and the

eventual recovery of the Okanogan populations of UCR steelhead and spring Chinook salmon. 6

The MOA provides a quantum leap in the amount of annual funding for habitat, safety-net

hatchery and monitoring and evaluation actions in the Okanogan watershed.

The changes

brought about by collaborative efforts during the remand process led Colville to support the 2008

BiOp. With the added certainty provided by the MOA, Colville determined that the final 2008

BiOp satisfied the Tribes’ concerns.

In the seven years during which the 2008 BiOp and the 2010 and 2014 supplements have

been implemented, Colville – and the region – have made tremendous progress toward fulfilling

the objectives in the RPA. Together, Colville and many other tribes, three states and the federal

agencies have demonstrated that the BiOp’s ambitious mitigation program to protect and recover

listed salmonids in the Columbia River basin – which is quite possibly the largest mitigation

project ever undertaken in the region, and perhaps the country – was reasonably certain to occur,

Peone Decl. ¶¶ 18, 22, 23; Colville MOA at B-1 – B-2.

Declaration of William T. Towey ¶ 5 (“2015 Towey Declaration”).

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and has in fact led to on-the-ground change and immediate benefits for fish throughout the basin.

Colville is but one part of this immense effort, and our brief and supporting declarations address

those parts of the BiOp and the Plaintiffs’ briefs most directly relevant to our role in the larger

effort.

With the funding support of the Colville MOA, Colville has built upon the early

accomplishments we described in our 2010 amicus brief. 7 Since 2010, Colville has also

completed Chief Joseph Hatchery, the safety net hatchery that was a key part of the Colville

MOA. See 2010 Colville Amicus Br. at 9-10 (describing hatchery design and objectives). The

hatchery is now carrying out its key role relative to the BiOp in the reintroduction of spring

Chinook to the Okanogan River basin. 2015 Towey Decl. ¶ 5 n.1, ¶ 9. Also since 2010, Colville

has planned, designed, and implemented numerous habitat restoration projects in the Okanogan

River basin, opening tributary reaches inaccessible for decades, providing additional flows, and

protecting riparian habitat. See id. ¶¶ 10-14. Completed projects have already demonstrated

immediate benefits to UCR steelhead, now that they are able to access some of the most

important habitat in the basin. Id. ¶¶ 10-15. This habitat work continues to the present day

notwithstanding the new supplemental BiOp and the new round of litigation. Colville believes

the Court would benefit from information about the Tribes’ continued work on habitat

restoration and other RPA actions even though they post-date the administrative record.

See Amicus Brief of Colville Tribes in Support of Defendants’ Supplemental Cross Motion for

Summary Judgment (Dkt. 1816) (“2010 Colville Amicus Brief”); Declaration of William T.

Towey (Dkt. 1817) (“2010 Towey Decl.”).

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Providing information that is beneficial as context for the Court’s consideration of the pending

summary judgment motions is a well-established role for non-party amici. 8

STANDARD OF REVIEW

It is well-established that claims under the Endangered Species Act (ESA) and National

Environmental Policy Act (NEPA) are reviewed under the arbitrary and capricious standard of

the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A). San Luis & Delta-Mendota

Water Authority v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014) (“Jewell”) (agency action “must be

upheld on review unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law”) (internal quotations omitted), cert denied, 83 USLW 3247 (Jan. 12, 2015).

The APA requires the agency to “examine the relevant data and articulate a satisfactory

explanation for its action including a rational connection between the facts found and the choice

made.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983)

(internal quotation and citation omitted); accord Pac. Coast Fed’n of Fishermen’s Ass’ns. v. U.S.

Bureau of Reclamation, 426 F.3d 1082, 1090 (9th Cir. 2005). Although the court conducts a

thorough evaluation of the challenged action, this review “is narrow and [the court does] not

substitute [its] judgment for that of the agency.” Lands Council v. McNair, 537 F.3d 981, 987

(9th Cir. 2008) (internal quotation omitted); Jewell, 747 F.3d at 601. Rather, the APA requires

courts to focus on whether the agency “relied on factors which Congress has not intended it to

See, e.g., Ryan v. Commodity Futures Trading Comm'n, 125 F.3d 1062, 1063 (7th Cir.1997)

(“An amicus brief should normally be allowed when ... the amicus has unique information or

perspective that can help the court beyond the help that the lawyers for the parties are able to

provide.”); Miller-Wohl Co. v. Comm'r of Labor & Indus. State of Mont., 694 F.2d 203, 204 (9th

Cir. 1982) (classic role of amicus curiae is to assist in case of general public interest and

supplement the efforts of counsel).

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consider, entirely failed to consider an important aspect of the problem, offered an explanation

for its decision that runs counter to the evidence before the agency, or is so implausible that it

could not be ascribed to a difference in view or the product of agency expertise.” San Luis &

Delta-Mendota Water Authority v. Locke, ___F.3d___, 2014 WL 7240003 at *11 (9th Cir. Dec.

22, 2014) (“Locke”) (quoting State Farm, 463 U.S. at 43).

The deferential standard of review under the APA carries additional weight when the

challenged agency action involves complex scientific and technical issues, a choice of

methodologies, or matters that fall within the agency’s expertise. The Ninth Circuit requires

courts “to defer to an agency’s determination in an area involving a ‘high level of technical

expertise,’” particularly where the agency is “making predictions, within its area of special

expertise, at the frontiers of science.” McNair, 537 F.3d at 993 (internal quotations omitted).

“Where scientific and technical expertise is necessarily involved in agency decision-making, . . .

a reviewing court must be highly deferential to the judgment of the agency.” Trout Unlimited v.

Lohn, 559 F.3d 946, 958 (9th Cir. 2009) (quoting Nat’l Wildlife Fed’n v. U.S. Army Corps of

Eng’rs, 384 F.3d 1163, 1174 (9th Cir. 2004)). Finally, “deference to agency determinations is at

its greatest when that agency is choosing between various scientific models.” Jewell, 747 F.3d at

610.

These requirements guide the role of courts even in cases involving the ESA, where the

statute requires “an agency to use ‘the best scientific and commercial data available’ when

formulating a BiOp.” Locke, 2014 WL 7240003 at *12 (citing 16 U.S.C. § 1536(a)(2); 50 C.F.R.

§ 402.14(g)(8)). For example, “[a]ssessing a species’ likelihood of extinction involves a great

deal of predictive judgment [and s]uch judgments are entitled to particularly deferential review.”

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Trout Unlimited, 559 F.3d at 959 (citing McNair, 537 F.3d at 993). However, the agency is not

required “to conduct new tests or make decisions on data that does not yet exist,” nor is it

prohibited from relying on weak and not dispositive data if that is the only data available. Locke,

2014 WL 7240003 at *12. The agency’s actions are not arbitrary as long as it “does not ignore

available studies, even if it disagrees with or discredits them.” Id. The existence of evidence for

and against the agency decision does not render a decision arbitrary and capricious under the

“best available science” standard where the agency resolves conflicting evidence in a reasoned

manner, entitling it to deference. See id. Indeed, the very determination of “what constitutes the

best scientific and commercial data available is itself a scientific determination deserving of

deference.” Locke, 2014 WL 7240003 at *12; accord Jewell, 747 F.3d at 602. Uncertainty

about the effectiveness of specific management measures is not necessarily fatal to an agency

decision, especially where the agency’s decision is premised on a reasonable evaluation of all

available data. Greenpeace Action v. Franklin, 14 F.3d 1324, 1337 (9th Cir.1992).

ARGUMENT

Colville’s amicus brief addresses the following issues: (1) whether the “trending toward

recovery” jeopardy standard used in the BiOp is consistent with the ESA and its implementing

regulations; (2) whether the BiOp’s analysis of “adverse modification of critical habitat” is

consistent with the ESA and valid under the APA; (3) whether the mitigation actions in the RPA

are “reasonably certain to occur”; (4) whether NOAA Fisheries considered all relevant factors

associated with its consideration of density dependence; and (5) whether the Action Agencies

failed to comply with NEPA when they did not prepare an environmental impact statement.

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NOAA’S ANALYSIS IS CONSISTENT WITH THE SECTION 7 JEOPARDY

STANDARD.

Plaintiffs’ first claim is that NOAA applied the wrong standard when assessing whether

FCRPS operations will “jeopardize the continued existence” of the listed species. NWF Br. at 511 (Dkt. 1976). Plaintiffs principally maintain that the “trending toward recovery” standard that

NOAA applied in the 2008 BiOp 9 fails to “address or include the key elements of the jeopardy

regulations or explain why they are unnecessary.” Id. at 9. Plaintiffs’ position lacks legal

support, and they propose no workable alternative to the “trending toward recovery” standard

employed in the BiOp.

The Recovery Analysis in the 2008 BiOp Meets the Requirements of

Section 7 and Its Implementing Regulations.

The Court’s analysis of Plaintiffs’ recovery claim must start with the language of Section

7 of the ESA and its implementing regulations. Section 7 of the ESA prohibits agency action

that is “likely to jeopardize the continued existence of” any listed species. 16 U.S.C. §

1536(a)(2). The ESA regulations interpret this to prohibit any agency action “that reasonably

would be expected, directly or indirectly, to reduce appreciably the likelihood of both the

survival and recovery of a listed species in the wild.” 50 C.F.R. § 402.02 (emphasis added).

This statutory and regulatory language “requires [NOAA Fisheries] to consider both

recovery and survival impacts.” Nat’l Wildlife Fed’n v. NMFS, 524 F.3d 917, 931 (9th Cir.

2008).

Contrary to Plaintiffs’ suggestions, however, consideration of recovery effects under

NOAA applied the same jeopardy standard in the 2008, 2010 and 2014 BiOps. Thus,

Plaintiffs’ challenge is essentially unchanged from the 2008 summary judgment briefing in this

case, as the Court never issued a ruling on this issue. NWF Br. at 5-6 (citing 2008 and 2010

briefs and summarizing arguments).

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Section 7 does not stand alone, but is intended to inform NOAA’s ultimate determination

concerning whether the proposed action is “likely to jeopardize the continued existence” of the

listed species. 16 U.S.C. § 1536(a)(2). As the Ninth Circuit has emphasized, jeopardy is a “joint

survival and recovery concept” and the recovery effects warrant a jeopardy finding only in the

“exceptional circumstances” that they “rise to the level of ‘jeopardizing’ the ‘continued

existence’ of a listed species.” NWF v. NMFS, 524 F.3d at 932 (citing 51 Fed. Reg. 19,934).

Also contrary to Plaintiffs’ suggestions, the jeopardy standard is not a broad mandate

requiring federal agencies to ensure the recovery of listed species that may be affected by their

proposed actions. Rather, Section 7 is focused on ensuring that new federal actions will not

jeopardize the existence of listed species. As the Ninth Circuit has explained, “[a]gency action

can only ‘jeopardize’ a species’ existence if that agency action causes some deterioration in the

species’ pre-action condition.” NWF, 524 F.3d at 930 (emphasis added). Thus, “an agency only

‘jeopardize[s]’ a species if it causes some new jeopardy.” Id. (emphasis added). Where baseline

conditions already jeopardize a species, Section 7 prohibits only those new actions that “deepen[]

the jeopardy by causing additional harm.” Id.

In contrast to the litigation regarding the 2004 BiOp, Plaintiffs no longer can credibly

argue that NOAA failed to “consider” recovery impacts. NWF, 524 F.3d at 931. Instead, they

now take issue with the procedures and methods NOAA used to evaluate these impacts.

Plaintiffs maintain that instead of analyzing whether the relevant ESUs would be “trending

toward recovery,” NOAA should have applied the standard from the 2000 BiOp: “(a) the

probability of achieving recovery that NOAA believed was necessary to avoid appreciably

reducing the likelihood of recovery, (b) broad time frames for reaching recovery, and (c) a

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working definition of what would constitute a recovered species.” NWF Br. at 7 (citing 2000

BiOp at 1-9, 1-14); see also 2008 NWF SJ Br. at 9-10 (Dkt. 1499).

This Court, however, may not impose on NOAA “procedural requirements” that are not

“explicitly enumerated” in the ESA or its implementing regulations. McNair, 537 F.3d at 993

(quoting Wilderness Soc’y v. Tyrrel, 918 F.2d 813, 818 (9th Cir.1990); Churchill Cnty. v.

Norton, 276 F.3d 1060, 1072 (9th Cir.2001)). Plaintiffs’ proposed three-step analysis cannot be

found anywhere in the relevant statutes or regulations.

In this situation, this Court must give

deference to the methods NOAA used to evaluate recovery impacts as long as they are

reasonable. See McNair, 537 F.3d at 993.

The methods NOAA used in its jeopardy analysis were reasonable.

First, NOAA

analyzed whether the “[s]hort term extinction risk is sufficiently low to meet the survival prong

of the jeopardy standard.”

2008 BiOp at 7-5 (NMFS 2014 AR at B281).

Next, NOAA

considered whether there was an adequate potential for recovery, i.e. “[t]he populations within a

species are expected to be on a trend toward recovery.” Id. Only if the short-term risk of

extinction was sufficiently small and there was an adequate potential for recovery did NOAA

conclude that the proposed action was not likely to “jeopardize the continued existence” of the

ESU in question. Id.

While plaintiffs take issue with the second prong of NOAA’s analysis, the “trending

toward recovery” metric for analyzing recovery potential is a reasonable method for determining

whether a proposed federal action will appreciably reduce the likelihood of recovery of listed

salmon or steelhead ESUs.

The “trending toward recovery” metric essentially asks whether,

given the effects of the proposed action, the environmental baseline, and any cumulative effects

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that are “reasonably certain to occur,” the number of returning spawners in the future is likely to

be greater than the levels prevalent under current conditions. See 2008 BiOp at 7-22 through 726. Where the number of returning fish in an ESU is currently declining, a “trending toward

recovery” analysis requires the Action Agencies to “reverse the trend toward species extinction”

and put the ESU back on a positive trend toward recovery. American Rivers v. NOAA Fisheries,

2006 WL 1455629 *10 (D. Or. 2006) (quoting TVA v. Hill, 437 U.S. 153, 184-85 (1978)).

tying a “no jeopardy” determination to a finding that the number of returning fish in an ESU is

likely to increase over base and current conditions, the “trending toward recovery” analysis

ensures that the proposed action will neither “cause[] some new jeopardy” nor “deepen[] the

jeopardy by causing additional harm.” NWF, 524 F.3d at 930. That is exactly what the law

requires.

No Legal Authority Supports Plaintiffs’ Attack on the Trending Toward

Recovery Analysis.

No legal authority supports plaintiffs’ claim that the “trending toward recovery” analysis

is arbitrary and unlawful. In support of their claim, Plaintiffs mistakenly rely on the portion of

the Ninth Circuit’s opinion holding that the 2004 BiOp “inappropriately evaluated recovery

impacts without knowing the in-river survival levels necessary to support recovery.” NWF, 524

F.3d at 936. The Ninth Circuit reasoned that it was “logical to require that the agency know

roughly at what point survival and recovery will be placed at risk before it may conclude that no

harm will result from ‘significant’ impairments to habitat that is already severely degraded.” Id.

Importantly, however, the court emphasized that its holding did not import the ESA’s separate

recovery planning provisions into the Section 7 consultation process, but was intended only to

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provide “some reasonable assurance that the agency action in question will not appreciably

reduce the odds of success for future recovery planning, by tipping a listed species too far into

danger.” Id.; see also Home Builders Ass’n v. FWS, 616 F.3d 983, 990 (9th Cir. 2010) (recovery

planning requirements cannot be inserted into other parts of the ESA).

The “trending toward recovery” metric in the 2008 BiOp meets these requirements.

Under this standard, survival and recovery logically are “put at risk” when the number of

returning adult spawners is consistently less than that of the preceding generation, i.e. the species

is on downward trend toward extinction. See 2008 BiOp at 7-22 through 7-26. The BiOp also

includes, as an RPA, “performance standards” for both adult and juvenile survival that, if met,

would allow sufficient numbers of populations of each ESU to increase over time. By requiring

that there will be more listed fish in future generations than in the present generation, the

“trending toward recovery” standard provides “reasonable assurance” that FCRPS operations

over the next ten years will not “appreciably reduce the odds of success of future recovery

planning by tipping a listed species too far into danger.” NWF, 524 F.3d at 936.

The Nez Perce Tribe maintains that the “trending toward recovery” analysis is

inconsistent with the definitions of “survival” and “recovery” in NOAA’s ESA Consultation

Handbook. See Nez Perce Br. at 5-6 (Dkt. 1984) (citing ESA Handbook at 4-35); see also 2008

NWF Br. at 12-13 (same). 10 This definitional argument, however, ignores the most important

definition – the definition of “jeopardy” in the ESA regulations.

Under the consultation

regulations, the jeopardy standard is intended to serve as a “joint survival and recovery concept.”

FWS and NMFS, Endangered Species Consultation Handbook (March 1998 Final Version)

(“ESA Handbook”), available at https://www.fws.gov/ENDANGERED/esalibrary/pdf/esa_section7_handbook.pdf (last accessed Feb. 26, 2015).

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NWF, 524 F.3d at 932 (citing 51 Fed. Reg. 19,934). Thus, while the regulations require NOAA

to consider recovery impacts, they require a jeopardy finding only in the “exceptional

circumstances” that recovery effects “rise to the level of ‘jeopardizing’ the ‘continued existence’

of a listed species.”

Id. Since recovery effects are dispositive in the jeopardy analysis only

where the “continued existence” of the species is jeopardized, it was entirely appropriate for

NOAA to analyze recovery effects based on the “potential for recovery” concept found in the

ESA Handbook’s definition of “survival.”

Plaintiffs’ Alternative to NOAA’s Analysis Is Contrary to Law and

Unworkable.

While Plaintiffs vigorously attack the recovery prong of the analysis in the 2008 and

2014 BiOps, their proposed three-step analysis is not a workable alternative. Although recovery

targets certainly can be and have been set for different populations and ESUs, there is no

statutory or regulatory guidance for determining either the appropriate time for recovery or what

constitutes an “appreciable reduction” in that time period. Plaintiffs’ proposed three-step method

would only inject additional uncertainty and subjectivity into the recovery analysis. 11

Plaintiffs suggest that an action “appreciably reduces” the likelihood of recovery if it

would result in a population growth rate that is less than required to attain a viable population

within some desired time frame for recovery.

Under Plaintiffs’ theory, an “appreciable

reduction” in the likelihood of recovery would be measured against an ideal situation where all

federal and non-federal actors take unspecified actions that lead to recovery within that desired

Plaintiffs fail to state what the appropriate timeframe for recovery should be. See NWF Br. at

7-8 (mentioning both a 48- and 100-year period).

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time frame. Even assuming that there were some recognized standard on the appropriate time for

recovery or what constitutes an “appreciable reduction,” this standard is contrary to law.

In most cases, full recovery of a listed species will require voluntary actions by many

federal and non-federal actors that go far beyond the scope of the proposed federal action subject

to Section 7 consultation.

In this common situation, Plaintiffs’ standard would make a “no

jeopardy” determination unattainable unless the action agency secures affirmative commitments

from other federal and non-federal actors to undertake positive actions needed to ensure species

recovery.

The analysis demanded by Plaintiffs would thus shift the focus of Section 7

consultations away from ensuring that the proposed federal action subject to consultation does

not “jeopardize the continued existence” of (i.e. cause additional harm to) the listed species.

Instead, the Section 7 consultation process would require the action agency to secure actions and

commitments from third parties that are sufficient to ensure full recovery of the listed species, or

at least recover the species to an arbitrary point where a Court could determine that the

likelihood of recovery has not been “appreciably reduced.” This goes far beyond what Congress

intended when it adopted Section 7, which requires only that a federal agency insure that its

proposed action will not jeopardize the “continued existence” of a listed species.

It is true that NOAA attempted to employ something akin to Plaintiffs’ proposed

methodology in the 2000 BiOp. See NWF Br. at 7-8. However, NOAA adequately explained

why it employed the “trending toward recovery” analysis in lieu of the unworkable analysis

employed previously. The earlier analytical framework for evaluating recovery impacts was not

appropriate for use in this case because full recovery will: (1) take more than the ten-year period

of the proposed action, (2) depend on additional federal and non-federal actions that are beyond

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the control of the action agencies and are not “reasonably certain to occur,” and (3) depend on

future, yet-to be-determined federal actions that have yet to undergo Section 7 consultations. See

July 12, 2006, Memo (NOAA 2008 AR B.343) at 3; 2008 BiOp at 1-6. This far-reaching

standard was the primary reason this Court overturned the 2000 BiOp, holding that a jeopardy

determination must be based solely on actions that are “reasonably certain to occur.” Nat’l

Wildlife Fed’n v. NMFS, 254 F.Supp.2d 1196, 1213 (D. Or. 2003).

Given the direction from

the Court, NOAA properly chose to focus its jeopardy analysis on whether the “reasonably

certain” effects of future federal and non-federal actions over the next ten years are likely to put

ESUs on a trend toward recovery.

NOAA’s 2008 and 2014 analysis, while perhaps less ambitious, is better grounded in

reality and more likely to generate useful information for the agency’s jeopardy determinations.

In light of the long time frame needed for recovery, the speculative nature of future actions that

will be needed to attain recovery, and the lack of any ascertainable standards for determining the

appropriate time for recovery or what constitutes an “appreciable reduction” in the likelihood of

recovery, NOAA’s decision to modify the jeopardy standard and use the “trend toward recovery”

framework for its recovery analysis in the current BiOp was both reasonable and adequately

explained by the record.

II.

NOAA’S ADVERSE MODIFICATION ANALYSIS IS CONSISTENT WITH

SECTION 7 OF THE ESA AND IS NOT ARBITRARY OR CAPRICIOUS.

Plaintiffs challenge NOAA’s analysis of the effects of the proposed action on critical

habitat. NWF Br. at 46-51; Oregon Br. at 21-41. It is important to consider the scale of the

critical habitat at issue when passing judgment on the adequacy of NOAA’s analysis. The

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critical habitat designation for nine of the FCRPS-impacted salmon and steelhead ESUs included

approximately 20,630 miles of lake, river, and estuary habitat spread across three states. NMFS,

Final Rule: Critical Habitat Designation for 12 West Coast Salmon and Steelhead ESUs, 70 Fed.

Reg. 52,630 (Sept. 2, 2005). The FCRPS BiOp action area includes the entire designated critical

habitat area for many of these ESUs. The life cycle of the affected salmonid ESUs “gives rise to

complex habitat needs, especially during the freshwater phase.” Id. at 52,662.

Thus, the

“principal biological or physical constituent elements [of habitat] that are essential to the

conservation,” or PCEs, of these salmonid species differ depending on life stage. Id. at 52,664

(citing 50 C.F.R. § 424.12(b)). Furthermore, the diverse characteristics of the habitat areas, and

the PCEs of those areas, add further complexity to the picture. Multiple life history types, such

as the bimodal migration of inland steelhead, add other complicating factors. Reducing this

naturally occurring complexity to a manageable set of variables and observations susceptible to

quantitative and qualitative habitat analysis is no mean feat.

Plaintiffs’ arguments that NOAA’s analysis is deficient because it did not focus

specifically on mainstem critical habitat PCEs necessary to migratory life stages, Oregon Br. at

27-30, or because NOAA failed to tie its analysis to specific in-river mortality or survival

metrics, NWF Br. at 47-48; Oregon Br. at 33-36, fail because they do not consider the state of the

best available science or NOAA’s duties under the ESA. Plaintiffs’ contentions impermissibly

convert the ESA’s obligation to avoid “destruction or adverse modification” of critical habitat to

an affirmative recovery obligation placed on NOAA and the Action Agencies.

position finds no support in the statute or regulations.

Plaintiffs’

Under Section 7(a)(2), an agency must

ensure that its actions are not likely to “result in the destruction or adverse modification” of

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The ESA regulations define

“destruction or adverse modification” as “direct or indirect alteration that appreciably diminishes

the value of critical habitat for both the survival and recovery of a listed species.” 50 C.F.R. §

402.02 (emphasis added). Just as “[a]gency action can only ‘jeopardize’ a species’ existence if

that agency action causes some deterioration in the species’ pre-action condition,” an action

“appreciably diminishes the value of critical habitat” only when it would result in some

additional or new harm to the function of that habitat. NWF, 524 F.3d at 930.

To be sure, NOAA must consider whether an agency action affects critical habitat needed

for recovery of the listed species. Gifford Pinchot Task Force v. U.S. Fish and Wildlife Serv.,

384 F.3d 1059, 1069-71 (9th Cir. 2004). 12 But as the Ninth Circuit has made clear, applied to

continuing operations, this requirement “simply provides some reasonable assurance that the

agency action in question will not appreciably reduce the odds of success for future recovery

planning, by tipping a listed species too far into danger.” NWF, 524 F.3d at 936 (emphasis

added).

Thus, an agency may not continue actions that adversely affect critical habitat if

maintaining the status quo would cause further harm to the species, for example, by continuing

the species on a downward spiral toward extinction. See Nez Perce Tribe v. NOAA Fisheries,

2008 WL 938430 at *8 (D. Idaho Apr. 7, 2008) (status quo operation of a federal irrigation

project would result in destruction of critical habitat because it would maintain the creeks as

“population sinks, where mortality exceeds reproduction”).

Unlike the FCRPS, where the primary action is continuing, in Gifford Pinchot Task Force,

there was no question that logging would result in new destruction of designated critical habitat

See 384 F.3d at 1074. The only issue was whether that critical habitat was necessary for the

recovery of the spotted owl.

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Plaintiffs acknowledge that, in contrast to the situation in Nez Perce, the 2014 BiOp

requires that critical habitat must be maintained in a condition that allows an ESU to “be stable

or growing at some rate . . . .” NWF Br. at 9. Plaintiffs, however, insist on more – they demand

that the Section 7 consultation process lead to restoration of sufficient critical habitat to support

full recovery. Plaintiffs’ contention should be rejected because it would put recovery planning

at the forefront of Section 7 consultation process, contrary to the Ninth Circuit’s express

directive that importing “ESA’s separate recovery planning provisions into the Section 7

consultation process” would be “improper.” NWF, 524 F.3d at 936; accord Cascadia Wildlands

v. Thrailkill, ___F. Supp. 3d ___, 2014 WL 4724855 at *13 (D. Or. Sept. 23, 2014) (jeopardy

analysis “is concerned with whether a given federal action at the species level would appreciably

reduce the likelihood of recovery, not whether that federal action would itself implement or bring

about recovery.”).

The remainder of Plaintiffs’ critical habitat arguments are disagreements with NOAA’s

scientific determinations, which are entitled to substantial deference. Although NOAA must

employ the best scientific data available, it is not required to support its finding that the RPA will

avoid adverse modification of critical habitat with anything approaching scientific certainty. See

Jewell, 747 F.3d at 592-93. Plaintiffs attempt to paint the picture that NOAA totally ignores the

RPA’s impacts to migratory life stage PCEs because NOAA fails to consider survival through

the mainstem migratory corridor in its adverse modification analysis. Oregon Br. at 26-36.

However, the RPA includes specific adult and juvenile dam passage rates and is thus part of the

proposed action considered by NOAA.

See BiOp at 351 and 358 (adult and juvenile

performance standards); 2013 Comprehensive Evaluation § 2 at 4 (2014 NMFS AR at B47)

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(RPA Actions 18 through 25, 28 through 32); id. § 1 at 37 (describing metric to estimate in-river

survival performance); see also id. at 94-97 (describing extensive hydrosystem research and

monitoring efforts and resulting changes to system operations through adaptive management), id.

§ 2 at 271-285 (discussing RPA 52’s requirement to monitor and evaluate fish performance

through the FCRPS and implementation of this action). Considered as a whole, the RPA, AMIP

and RM&E plans implemented by NOAA and the Action Agencies evidence a thorough and

reasoned consideration of in-river survival and dam passage. NOAA considered how the RPA’s

hydropower actions affected critical habitat, and concluded that, based on the specific

hydropower system survival metrics discussed above, the RPA reduces factors that have limited

the functioning of PCEs in juvenile and adult migration corridors. 2014 BiOp at 388. NOAA’s

conclusion is reasonable, supported by the record and therefore entitled to substantial deference.

See NW Envtl. Def. Council v. U.S. Army Corps of Engineers, No. 3:10-cv-01129-AC, 2013 WL

1294647 at *22 (D. Or. March 27, 2013).

Oregon also argues that the action agencies cannot rely on tributary and other mitigation

action outside of the mainstem to account for adverse modification of mainstem PCEs. Oregon

Br. at 28 n. 15, 28-29. Oregon cites no authority for its assertion because there is none. There is

nothing impermissible with the approach followed by NOAA and the action agencies in

evaluating the entire RPA’s impacts on critical habitat as a whole. In fact, the ESA Consultation

Handbook directs NOAA during consultation to “focus[] on the entire critical habitat area

designated unless the critical habitat rule identifies another basis for analysis . . . .” ESA

Handbook at 4-41. Furthermore, the 2005 critical habitat rule makes it clear that because the

FCRPS is operated as an integrated system that spans multiple watersheds, impacts of the system

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“are best considered as a spatial scale considerably greater than an individual watershed.” 70

Fed. Reg. at 52,643 (emphasis added). As the rule makes clear, it is not segments of PCEs

associated with particular life stages but “the quality, quantity and distribution of PCEs within a

watershed,” id. at 52,638, that is important to assessing salmonid critical habitat. This is, in part,

because “protecting upstream areas accrues benefits to downstream areas.” Id. at 52,638. In light

of the parameters established by the 2005 critical habitat designation, it is reasonable for NOAA

to focus on the combined effects of habitat impacts, rather than impacts to PCE segments, in

finding no adverse modification by the RPA.

III.

NOAA’S JEOPARDY ANALYSIS IS BASED ON TRIBUTARY HABITAT

RESTORATION AND HATCHERY PROJECTS THAT ARE REASONABLY

CERTAIN TO OCCUR.

Plaintiffs’ claims regarding tributary habitat and estuary habitat are indicative of a central

theme in this litigation – hostility toward any effort to mitigate the FCRPS impacts to listed

salmonids that does not involve major changes to the projects themselves. 13

This philosophy is

inconsistent with the “All-H” approach that has long guided the region’s efforts to address the

significant impacts of the FCRPS. It also fails to acknowledge the significant changes that have

occurred in how the Action Agencies developed the 2008 BiOp through a regional sovereign

process with unprecedented opportunities for public and stakeholder input. This has continued

through the 2010 and 2014 BiOps and in the coordination and adaptive management processes

established since the Court’s remand of the 2004 BiOp. The BiOp’s emphasis on habitat

See, e.g. Oregon Br. at 33 (“Oregon supports freshwater habitat restoration, but not in lieu of

addressing significant mortality associated with passage through the FCRPS.”); Nez Perce Br. at

20 (“The Nez Perce Tribe, throughout this litigation, has emphasized the importance of

implementing habitat restoration actions in addition to – not in lieu of – making necessary

improvements at the mainstem Columbia and Lower Snake River dams.”).

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restoration truly makes the effort a collective one, as no agency has the local expertise or

capability to plan and implement the hundreds of projects that were prescribed by the RPA and

have been undertaken over the past seven years.

One method Plaintiffs use to attack the sweeping habitat mitigation called for in the BiOp

is to pick at projects or areas where progress has been sub-par. It is hardly surprising, even this

far into the BiOp, that some areas – the estuary in particular

- have experienced greater

challenges in implementing restoration projects. But to argue that a few lagging projects calls

the entire approach into question, and requires the Court to throw out the BiOp in toto, is

unwarranted. Unlike the 2000 BiOp, strong progress has been demonstrated in a number of

areas, and there is ample evidence that the habitat restoration improvements on which NOAA’s

jeopardy analysis rests – in part – are reasonably certain to occur. See NWF v. NMFS, 254 F.

Supp. 2d at 1213-15 (discussing “reasonably certain to occur” requirement and holding 2000

BiOp impermissibly relied on off-site non-federal mitigation actions that did not meet this

standard).

Situated in the upper Columbia basin, above all of the dams where fish passage occurs,

Colville has taken responsibility for restoring habitat in the highly degraded Okanogan River

basin and in establishing a major new safety net hatchery, which is being utilized in part to

reintroduce a locally adapted spring Chinook population to the Okanogan. While the Tribes had

been committed to habitat restoration long before the 2008 BiOp, they have substantially

developed their capacity and expertise over the past seven years and now have a comprehensive

habitat restoration program that has designed, planned and implemented numerous projects with

documented benefits to UCR steelhead. Towey Decl. ¶¶ 9, 22; NMFS 2014 AR C031634 at 2

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(Colville Cmts. on Draft BiOp). This growth has been possible in large part from the stable,

significant funding under the 2008 Colville MOA. Towey Decl. ¶¶ 5-6. The MOA is a ten-year

commitment by the Action Agencies to work in partnership with Colville and fund projects

benefiting salmon and steelhead in the upper Columbia. The Colville MOA and other “Fish

Accords” established the certainty and binding federal commitment, 14 as well as the measurable

goals and implementation schedule that were lacking in the 2000 BiOp’s RPA. For purposes of

the BiOp, the key MOA projects are habitat restoration, protection and monitoring and

evaluation in the Okanogan River basin, and Chief Joseph Hatchery. Early in the BiOp’s term in

2010, Colville was upholding its part of the bargain, see 2010 Amicus Br. at 7-17, and since then,

has continued to solidify those gains and implement numerous other projects, including the 2013

completion of Chief Joseph Hatchery.

Okanogan Basin Tributary Habitat Projects and Monitoring and

Evaluation.

The Colville MOA infuses on average from $4 to $7 million annually to habitat,

monitoring and related work in the Okanogan Basin. Towey Decl. ¶ 6. This compares to preMOA funding of $3 million per year for the entire upper Columbia. Id. Additional benefits have

flowed from the MOA’s overall commitment of more than $200 million over ten years, including

freeing staff to work on projects rather than seeking funding on a project-by-project basis and

leveraging MOA funds to develop cost-share agreements with regional partners. Id.

The Colville MOA would remain in effect even if the Court invalidates the BiOp. However,

the Action Agencies may withdraw from the MOA if the Court orders changes to FCRPS

operations that have a materially financial effect on the Action Agencies or materially constrain

the Action Agencies from meeting FCRPS purposes. See Colville MOA at 18 (¶ F.2).

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Colville habitat work in the Okanogan implements projects designed to restore healthy,

sustainable steelhead populations. These projects are tied to the 2007 Upper Columbia Spring

Chinook Salmon and Steelhead Recovery Plan, which in turn is based on addressing limiting

factors for each species. In the past four years, Colville has built on progress from the first three

years of the BiOp.

The 2012 expert panel assessment of habitat work in the Okanogan

determined that Colville projects were on track, achieving 50% of the RPA’s target of 14%

habitat quality improvement (HQI), and in fact were anticipated to achieve 120% HQI by 2018.

Towey Decl. ¶ 15; Colville Cmts. on Draft BiOp at 2.

From 2010 to the present, Colville projects have focused on restoring access, improving

flows and protecting riparian habitat in key Okanogan River tributaries.

In Omak Creek,

Colville completed a project to remove over 10,000 cubic yards of rock and boulder in the 200feet deep Mission Falls gorge. Towey Decl. ¶ 10. Overcoming significant logistical challenges

cleared access to over 15 miles of spawning and rearing habitat. Similar to many other Colville

projects, it was met with immediate and positive results, as 10 adult steelhead were detected

above Mission Falls for the first time in nearly a century (despite poor flow conditions). Id. ¶¶

10-12 (demonstrating immediate benefits in Omak, Salmon and Loup Loup Creeks). On Salmon

Creek, Colville made two opportunistic land purchases after being approached by the owners.

Id. ¶ 11. Such purchases are an important part of Colville’s strategy to protect habitat as nearly

40% of the Okanogan watershed is in private ownership, a much higher share than other UCR

sub-basins. Id. These projects protected 0.85 miles of riparian habitat and led to other habitat

restoration work. Id. In Loup Loup Creek, Colville funded a 20-year lease which resulted in

perennial flow in a 2.2-mile stretch of spawning and rearing habitat and spearheaded efforts with

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regional partners to remove two fish passage barriers. Id. ¶ 9. In Antoine Creek, tribal biologists

and engineers designed a rock chute that will be constructed in 2015, ensuring access to the

entire creek in advance of other planned work. Id. ¶ 13. In Ninemile Creek, Colville funded a

large instream water rights transfer resulting in permanent protection of over 2 cubic feet per

second of instream flow. Id. ¶ 14.

Along with the habitat restoration work described above, Colville is carrying out an

ambitious monitoring and evaluation (M&E) program in the Okanogan. Id. ¶ 17. Under the

Okanogan Basin Monitoring and Evaluation Program (OBMEP), Colville biologists gather key

ecosystem data relating to salmonids and their habitat to establish a long-term status and trend

data set. Id. As compared to M&E efforts in other watersheds, OBMEP collects, analyzes and

reports data on a very fine scale – at the stream reach level where habitat degradation,

improvement projects and observable fish response occur. Id. ¶ 18. Colville then analyzes this

data utilizing the Ecosystem Diagnosis and Treatment (EDT) modeling tool, which assists the

Tribes in evaluating fish response to the projects, prioritizing future projects and, in time,

evaluating and considering the impacts of climate change in Colville’s work in the Okanogan

River basin. Id. ¶¶ 19-21.

Chief Joseph Hatchery and the Reintroduction of Spring Chinook to the

Okanogan River.

On June 20, 2013, the Colville Tribes held a first salmon ceremony and dedicated the

Chief Joseph Hatchery.

Colville Cmts. on Draft BiOp at 2.

This event celebrated the

culmination of a long planning process, and more than three years of constructing the major

hatchery infrastructure. Id. at 2-3. The dedication event also coincided with the first fish on

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station and formal initiation of hatchery operations that will ultimately produce up to 2.9 million

Chinook salmon annually at this state-of-the-art facility. Id. at 3; 2010 Colville Amicus Br. at 711 (describing application of best available science in hatchery operations). 15 Chief Joseph

Hatchery was the largest single project funded under the Colville MOA, representing over $40

million in construction costs and almost $20 million for operations and M&E costs over the first

decade. Colville Cmts. on Draft BiOp at 3; Colville MOA at A-1 (Attach. A). 16

The completed hatchery is now ready to play a role under the BiOp in enhancing UCR

spring Chinook genetic resources and recovery efforts (RPA 42, Hatchery strategy 2 at Table 8).

Colville Cmts. on Draft BiOp at 3. The BiOp supports implementation of the 2007 UCR Spring

Chinook Salmon and Steelhead Recovery Plan’s strategy for reintroducing spring Chinook into

the Okanogan Basin. To accomplish this, in November 2010 Colville submitted to NOAA

Fisheries a request to designate an experimental, non-essential population pursuant to Section

10(j) of the ESA. See id. & Colville MOA at B-6 to B-7. NOAA issued a final rule designating

the experimental, non-essential population on July 11, 2014. 79 Fed. Reg. 40,004 (July 11,

2014); see also 50 C.F.R. § 223.301(c).

In addition, several regulatory processes were

completed in 2013 and 2014 along with NOAA Fisheries’ consideration of the proposed rule. In

May 2013, Colville submitted an updated Hatchery and Genetic Management Plan (HGMP)

More details about the hatchery can be found at BPA’s project website, including the 2009

Final EIS. See http://efw.bpa.gov/environmental_services/Document_Library/Chief_Joseph/;