the honorable benjamin h. settle · no. 3:12-cv-05109-bhs iii u.s. dept. of justice , environment...

Fed. Defs.’ Cross Mot. Summ. Judg.- No. 3:12-CV-05109-BHS

U.S. Dept. of Justice , Environment & Natural Resources Div. c/o U.S. Attorney’s Office, 1000 SW Third Avenue

Portland, OR 97204-2902

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THE HONORABLE BENJAMIN H. SETTLE

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

AT TACOMA

WILD FISH CONSERVANCY, et al., Plaintiffs, v. NATIONAL NPS, et al., Defendants,

___________________________________

) ) ) ) ) ) ) ) )

No. 3:12-CV-05109-BHS FEDERAL DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SECOND MOTION FOR SUMMARY JUDGMENT [NOTE ON MOTION CALENDAR: August 21, 2013] ORAL ARGUMENT REQUESTED

The National Park Service (“NPS”); Jonathan B. Jarvis, Director of the National Park

Service; the United States Department of the Interior (“DOI”); Sally Jewell, Secretary of the Interior;

the United States Fish and Wildlife Service (“FWS”); Daniel M. Ashe, Director of the U.S. Fish and

Wildlife Service; United States Department of Commerce; Penny Pritzker, Secretary of the United

States Department of Commerce; NOAA Fisheries (“NMFS”); Samuel D. Rauch III, Acting

Assistant Administrator for NOAA Fisheries Service, (collectively “Federal Defendants”)

Case 3:12-cv-05109-BHS Document 164 Filed 07/24/13 of 64

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hereby cross move for summary judgment and oppose Plaintiffs’ second motion for summary

judgment. ECF 153 at 1.1

Because all of the remaining claims for relief in this case are reviewed in accordance with an

Administrative Procedure Act (“APA”) standard of review, there are no disputed factual issues and

the Court can and should resolve all of the remaining claims for relief on cross-motions for summary

judgment. Accordingly, Federal Defendants move for summary judgment on all of Plaintiffs’

remaining claims under the National Environmental Policy Act (“NEPA”), Endangered Species Act

(“ESA”), and APA. Specifically, Federal Defendants move for summary judgment on Plaintiffs’

Second Claim for Relief (NEPA challenge alleging a failure to prepare supplemental NEPA on the

Elwha River Fish Restoration Plan (“Fish Restoration Plan”)); ECF 1 ¶ 142-47; Fourth Claim for

Relief (ESA § 7(a)(2) challenge alleging a failure to consult on the Fish Restoration Plan), ECF 1 ¶

153-57; Fifth Claim for Relief (ESA § 7(a)(2) challenge alleging a failure to reinitiate consultation on

the Fish Restoration Plan), ECF 1 ¶¶ 158-165; Seventh Claim for Relief (ESA § 7(a)(2) challenge

alleging that the Fish Restoration Plan jeopardizes listed species), ECF 1 ¶¶ 172-75; Twelfth Claim

for Relief (APA challenge to the July 2012 Biological Opinion (“July BiOp”)), ECF 66 ¶¶ 23-24;

Thirteenth Claim for Relief (APA challenge to NMFS’ Limit 6 Exemption), ECF 125 ¶¶ 44-45;

Fourteenth Claim for Relief (APA challenge to December 2012 Biological Opinion (“December

BiOp”)), ECF 125 ¶¶ 46-47; Fifteenth Claim for Relief (NEPA challenge to NMFS’ Environmental

Assessment (“EA”)), ECF 125 ¶¶ 48-49; Sixteenth Claim for Relief (NEPA challenge alleging a

failure to prepare an Environmental Impact Statement (“EIS”)), ECF 125 ¶¶ 50-51.2

1 The citation format “ECF XX at yy” throughout this brief refers to the Court generated ECF stamp and the page number generated in the upper right corner of each pleading. 2 The Court previously dismissed Plaintiffs’ First, Third, Tenth, and Eleventh Claims for Relief by granting in part Federal Defendants’ motion for partial dismissal. ECF 50 at 17. The Court also dismissed Plaintiffs’ Ninth Claim


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For the reasons set forth below, the Court should grant Federal Defendants’ motion, deny

Plaintiffs’ motion, and enter judgment in favor of Federal Defendants on all of Plaintiffs’ remaining

claims in this case.3

for Relief against the Tribal Defendants by granting Tribal Defendants’ motion to dismiss. ECF 126 at 9. Plaintiffs further stipulated to dismissal of their Sixth and Eighth Claims for Relief. ECF 142 at 3. Plaintiffs recently stated that they are not moving for summary judgment on their Fifth Claim for Relief and have abandoned that claim. ECF No. 153 at iii. Plaintiffs also moved for summary judgment on their Fourth and Twelfth Claims for Relief, but the Court previously denied their motion. ECF 112 at 8. Plaintiffs moved for preliminary injunctive relief, but subsequently withdrew their motion. ECF 113. 3 The citation format for the administrative records corresponds with each of the administrative records and supplements filed by the respective agencies, where “NPS” refers to the Park Service, “FWS” refers to the U.S. Fish and Wildlife Service, and “NMFS” refers to the National Marine Fisheries Service. ECF 52; ECF 76; ECF 135. The page numbers refers to the Bates stamp numbering in either the lower right corner or upper left corner.


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TABLE OF CONTENTS

PAGE

I. INTRODUCTION………………………………………………………………… 1

II. BACKGROUND……………………………………………………………………. 3

A. THE NATIONAL ENVIRONMENTAL POLICY ACT……………………… 3

B. THE ENDANGERED SPECIES ACT………………………………………... 4

1. Section 7(a)(2) of the ESA………………………………………………… 5

2. Section 4(d) of the ESA…………………………………………………… 5

C. FACTUAL BACKGROUND………………………………………………… 6

1. Restoration of the Elwha River…………………………………………… 6

2. The Decision to Use Hatcheries……………………………………………. 8

3. Consultations Under Section 7(a)(2) of the ESA………………………….. 9

a. NMFS’ Biological Opinions on Puget Sound Chinook, Steelhead, Eulachon, and Orcas……………………………………… 9

b. The Tribe and State Hatchery and Genetic Management Plans,

NMFS’ December BiOp, EA, and Rule 4(d) Approval……………… 11

III. STANDARD OF REVIEW………………………………………………………. 14

IV. MOTION TO STRIKE PLAINTIFFS’ EXTRA RECORD EVIDENCE……… 15

V. ARGUMENT………………………………………………………………………. 16

A. FEDERAL DEFENDANTS FULLY COMPLIED WITH NEPA……………. 16

1. Defendants prepared an EA on the decision to approve the HGMPs and concluded there would be no significant environmental impact. ……… 16 a. The context of the hatchery plans is not extraordinary. ……………… 17


iii U.S. Dept. of Justice , Environment & Natural Resources Div.

c/o U.S. Attorney’s Office, 1000 SW Third Avenue Portland, OR 97204-2902


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b. The action will not significantly impact unique characteristics of the geographic area……………………………….. 18

c. The action will not establish a precedent for future actions…………. 19

d. The effects of the action are not “highly uncertain.”………………… 21

e. The effects of the action are not “highly controversial.”…………….. 24

f. The action will not significantly adversely affect listed species……… 26

g. The action is not related to other actions with cumulatively significant impacts…………………………………………………… 28 i. NMFS analyzed cumulative impacts and

reasonably concluded they would not be significant…………….. 28

ii. NMFS properly analyzed the Elwha HGMPs separately from a programmatic EIS for hatchery programs. ……………………... 30

h. The action will not cause the loss of significant scientific resources… 31

2. THE EA AND FONSI ARE NOT ARBITRARY AND CAPRICIOUS.… 32

a. Federal Defendants Timely Complied With NEPA, Before Any Major Federal Actions……………………………….... 32

b. NMFS Explained Why the Alternative of Reduced Hatchery

Production Was Not Considered In Detail. ……………………… 35 c. NMFS properly defined the No-Action

Alternative as status quo…………………………………………….. 36

B. FEDERAL DEFENDANTS FULLY COMPLIED WITH THE ESA AND APA…………………………………………………. 38

1. NMFS Did Not Improperly Segment its Consultation, and Considered the

Adverse and Beneficial Effects of Hatcheries in its Biological Opinions and Incidental Take Statements…………………………………………… 38

2. NMFS Analyzed Broodstock Collection in the BiOps and ITSs…………… 42

3. NMFS Appropriately Relied on Monitoring. ……………………………… 44

4. NMFS Appropriately Defined the Action Area……………………………. 46


iv U.S. Dept. of Justice , Environment & Natural Resources Div.



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5. The Action Agencies Fulfilled their Obligations Under ESA § 7………….. 47

VI. CONCLUSION…………………………………………………………………… 50


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TABLE OF AUTHORITIES

CASES PAGE

Airport Cmtys. Coal. v. Graves, 280 F. Supp. 2d 1207 (W.D. Wash. 2003) ................................. 34, 35 Ass'n of Pub. Agency Customers, Inc. v. Bonneville Power Admin., 126 F.3d 1158 (9th Cir. 1997) ......................................................................................................................................... 36 Az. Cattle Growers' Ass'n v. U.S. Fish & Wildlife Serv., 273 F.3d 1229 (9th Cir. 2001) ................... 36 Barnes v. U.S. Dept. of Transp., 655 F.3d 1124 (9th Cir. 2011) .......................................................... 20 Bering Strait Citizens for Resp. Res. Dev. v. U.S. Army Corps of Eng'rs, 524 F.3d 938 (9th Cir. 2008) ......................................................................................................................................... 23 Camp v. Pitts, 411 U.S. 138 (1973) ....................................................................................................... 15 Conner v. Burford, 848 F.2d 1441 (9th Cir. 1988) ................................................................................ 41 Conserv. Cong. v. U.S. Forest Serv., 371 Fed. Appx. 723 (9th Cir. 2010) ..............................21, 30, 32 Ctr. for Biol. Div. v. Salazar, 695 F.3d 893 (9th Cir. 2012) .................................................................. 35 Ctr. for Biol. Div. v. U.S. BLM, 746 F. Supp. 2d 1055 (N.D. Cal. 2009) ............................................ 38 Ctr. for Biological Diversity v. BLM, 698 F.3d 1101 (9th Cir. 2012) ............................................ 16, 45 Ctr. for Biological Diversity v. Lohn, 511 F.3d 960 (9th Cir. 2007) .................................................... 49 Ctr. For Biological Diversity v. Marina Point Dev. Co., 566 F.3d 794 (9th Cir. 2009) ....................... 48


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Custer County Action Ass'n v. Garvey, 256 F.3d 1024 (10th Cir. 2001) ............................................. 38 Dep't of Transp v. Pub. Citizen, 541 U.S. 752 (2004) ............................................................................. 4

Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291 (9th Cir. 2003) ........................................... 30, 31 Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005 (9th Cir. 2006) ..............................21, 22, 26 Found. for N. Am. Wild Sheep v. U.S. Dep't of Agric., 681 F.2d 1172 (9th Cir. 1982) ..................... 24 Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976 (9th Cir. 1985) .................................... 25 Grand Canyon Trust v. U.S. Bureau of Recl., 623 F. Supp. 2d 1015 (D. Ariz. 2009) ......................... 21 Grand Canyon Trust v. U.S. Bureau of Reclamation, 691 F.3d 1008 (9th Cir. 2012) ................... 14, 16 Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49 (1987) ................................... 49 Headwaters, Inc. v. BLM, 914 F.2d 1174 (9th Cir. 1990) .............................................................. 35, 36 Humane Soc. v. Locke, 626 F.3d 1040 (9th Cir. 2010) .................................................................. 24, 26 Ka Makani 'O Kohala Ohana Inc. v. Water Supply, 295 F.3d 955 (9th Cir. 2002) ....................... 33, 34 Kappos v. Hyatt, 132 S.Ct. 1690 (2012) ................................................................................................ 15 Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006 (9th Cir. 2012) (en banc) ...................... 14, 16 Klamath Siskiyou Wildlands Ctr. v. Grantham, 2013 WL 1420259 (E.D. Cal. April 8, 2013) .................................................................................................................. 23, 24 Kleppe v. Sierra Club, 427 U.S. 390 (1976) .......................................................................................... 30 Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) (en banc) ................................................ 14, 44 Lands Council v. Powell, 395 F.3d 1019 (9th Cir. 2005) ..................................................................... 14


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League of Wilderness Defenders v. Forest Serv., 549 F.3d 1211 (9th Cir. 2008) ............................... 44 League of Wilderness Defs.-Blue Mtns. Biodiv. Project v. U.S. Forest Serv., 689 F.3d 1060 (9th Cir. 2012) ......................................................................................................................................... 35 Lockhart v. Kenops, 927 F.2d 1028 (8th Cir. 1991) ............................................................................. 32 Marsh v. Or. Natural Res. Council, 490 U.S. 360 (1989) .........................................................15, 26, 34 McGary v. Richards, No. C09-5156 -BHS, 2009 WL 3169563 (W.D.Wash. 2009) .................... 39, 40 N. Idaho Comm. Action Network v. U.S. Dept. of Transp., 2008 WL 838718 (D. Idaho March 27, 2008) ..................................................................................................................... 26 National Association of Home Builders v. EPA, 551 U.S. 644 (2007) ................................................ 48 Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233 (9th Cir.2005) ........................... 26, 35 Native Vill. of Chickaloon v. NMFS, __ F. Supp. 2d __, 2013 WL 1219341 (D. Alaska May 28, 2013) ...................................................................................................................... 25 Natural Res. Def. Council, Inc. v. Hodel, 624 F. Supp. 1045 (D. Nev. 1985), aff'd, 819 F.2d 927 (9th Cir. 1987) ......................................................................................................................................... 37 Neighbors of Cuddy Mountain v. Forest Serv., 137 F.3d 1372 (9th Cir. 1998) ................................... 29 Ninilchik Traditional Council v. U.S., 227 F.3d 1186 (9th Cir. 2000) .................................................. 16

North Carolina v. Fed. Aviation Admin., 957 F.2d 1125 (4th Cir.1992) ............................................. 24 Northwest Envt'l Def. Ctr. v. U.S. Army Corps of Eng'rs, 817 F. Supp. 2d 1290 (D. Or. 2011) ...............................................................................................................................17, 37, 43 NRDC v. Gutierrez, 2008 WL 360852 (N.D. Cal. 2008) ..................................................................... 44 Nw. Ecosystem Alliance v. FWS, 475 F.3d 1136 (9th Cir. 2007) ........................................................ 14 Nw. Env. Def. Ctr v. U.S. Army Corps of Eng'rs, 2013 WL 1294647 (D.Or. 2013) .......................... 26


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Nw. Envtl. Def. Ctr v. NMFS, 647 F.Supp.2d 1221 (D. Or. 2009) ................................................ 43, 47 Occidental Eng'g Co. v. INS, 753 F.2d 766 (9th Cir. 1985) ................................................................. 15 Oceana v. Evans, 384 F.Supp.2d 203 (D.D.C. 2005) ............................................................................ 46 Pacific Coast Fed. of Fishermen's Ass'ns v. U.S. Dep't of Interior, No. 1:12-CV-01303-LJO MJS, 2013 WL923407 (E.D. Cal. 2013) ............................................................................................... 37 Presidio Golf Club v. NPS, 155 F.3d 1153 (9th Cir. 1998) ............................................................ 20, 24 Native Ecosystems Council v. Dombeck, 304 F.3d 886 (9th Cir. 2002) ........................................ 31, 47 Pyramid Lake Paiute Tribe of Indians v. U.S. Dept. of Navy, 898 F.2d 1410 (9th Cir. 1990) ......................................................................................................................................... 48 Rattlesnake Coal. v. E.P.A., 509 F.3d 1095 (9th Cir. 2007) ........................................................... 33, 34 River Runners for Wilderness v. Martin, 593 F.3d 1064 (9th Cir. 2010) ............................................. 14 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) .................................................... 4 San Francisco Baykeeper v. U.S. Army Corps of Eng'rs, 219 F.Supp.2d 1001 (N.D.Cal. 2002) ................................................................................................................................ 46, 47 San Luis Obispo Mothers for Peace v. Nuclear Reg. Comm'n, 635 F.3d 1109 (9th Cir. 2011) ......................................................................................................................................... 34 Selkirk Conversation Alliance v. Forsgren, 336 F.3d 944 (9th Cir. 2003) ........................................... 44 Sierra Club v. Penfold, 857 F.2d 1307 (9th Cir. 1988) ......................................................................... 33 Soda Mtn. Wilderness Council v. BLM, 2013 WL 1975852 (D. Or., May 10, 2013) .................. 19, 26 Southwest Ctr. v. BOR, 143 F.3d 515 (9th Cir. 1998) .......................................................................... 44 Surfrider Found. v. Dalton, 989 F. Supp. 1309 (S.D. Cal. 1998) .......................................................... 24 W. Watersheds Project v. BLM, 2011 WL 1630789 (D. Nev. 2011) .................................................. 24


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W. Watersheds Project v. BLM, 552 F. Supp. 2d 1113 (D. Nev. 2008) .............................................. 30

STATUTES 5 U.S.C. § 706 ......................................................................................................................................... 16 16 U.S.C. § 1532(20) ................................................................................................................................ 6 16 U.S.C. § 1532(6) .................................................................................................................................. 6 16 U.S.C. § 1533(d) .................................................................................................................................. 6 16 U.S.C. § 1536(a)(2) ............................................................................................................................. 5 16 U.S.C. § 1536(b)(3)(A) ....................................................................................................................... 5 16 U.S.C. § 1536(b)(4)(i)-(v) ................................................................................................................... 5 16 U.S.C. § 1536(o)(2) ............................................................................................................................. 5 16 U.S.C. § 1538(a) .................................................................................................................................. 6 16 U.S.C. § 1540(g)(1)(A) ..................................................................................................................... 48 25 U.S.C. § 450j-1(b)(2) ......................................................................................................................... 34 25 U.S.C. §§ 450-450n ........................................................................................................................... 47 42 U.S.C. §§ 4321..................................................................................................................................... 4

FEDERAL REGULATIONS 40 C.F.R. §§ 1500.1-1508.28 ................................................................................................................... 4

40 C.F.R. § 1501.7 .................................................................................................................................... 4 40 C.F.R. § 1502.14(d) ........................................................................................................................... 36 40 C.F.R. § 1502.20 ................................................................................................................................ 18 40 C.F.R. § 1502.5 .................................................................................................................................. 32 40 C.F.R. § 1508.7 .................................................................................................................................. 29 40 C.F.R. § 1508.9(b) ......................................................................................................................... 4, 35 40 C.F.R. § 1508.23 ................................................................................................................................ 32 40 C.F.R. § 1508.25(a)(2) ...................................................................................................................... 30 40 C.F.R. § 1508.27 .................................................................................................................................. 4 40 C.F.R. § 1508.27(b)(3) ................................................................................................................ 18, 19 40 C.F.R. §1508.27(b)(4) ....................................................................................................................... 24 40 C.F.R. § 1508.27(b)(5) ...................................................................................................................... 21 40 C.F.R. § 1508.27(b)(6) ...................................................................................................................... 19


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40 C.F.R. § 1508.27(b)(7) ................................................................................................................ 28, 29 40 C.F.R. § 1508.27(b)(8) ...................................................................................................................... 31 40 C.F.R. § 1508.27(b)(9) ................................................................................................................ 26, 27 40 C.F.R. § 1508.28 ................................................................................................................................ 18 40 C.F.R. §§ 1501.4(b) ............................................................................................................................. 4 40 C.F.R. §§ 1501.4(e) ............................................................................................................................. 4 40 C.F.R. §§ 1501.6 .................................................................................................................................. 4 40 C.F.R. §§ 1501.7 .................................................................................................................................. 4 40 C.F.R. 1502.9(c)(1) ............................................................................................................................ 34 50 C.F.R. § 17.44(w) ................................................................................................................................ 6 50 C.F.R. § 223.203 .................................................................................................................................. 6 50 C.F.R. § 223.203(a) ............................................................................................................................. 6 50 C.F.R. § 223.203(b) ............................................................................................................................. 6 50 C.F.R. § 223.203(b)(5) ...................................................................................................................... 11 50 C.F.R. § 223.203(b)(6) ...................................................................................................................... 13 50 C.F.R. § 402.02 ............................................................................................................................ 42, 46 50 C.F.R. § 402.14(a) ............................................................................................................................... 5 50 C.F.R. § 402.14(g) ............................................................................................................................... 5 50 C.F.R. § 402.14(i) .............................................................................................................................. 43 50 C.F.R. §§ 402.13 .................................................................................................................................. 5 50 C.F.R. §§ 402.13(a) ............................................................................................................................. 5 50 CFR 223.203(b)(5) ............................................................................................................................ 11 46 Fed. Reg. 18027 (March 23, 1981) ................................................................................................... 37 69 Fed. Reg. 26364 ................................................................................................................................. 31 76 Fed. Reg. 45515 (July 29, 2011) .................................................................................................. 20,31 76 Fed. Reg. 45516 ................................................................................................................................. 31 77 Fed. Reg. 63294 (Oct. 16, 2012) ....................................................................................................... 12


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I. INTRODUCTION

In 1910 construction of the Elwha Dam began and shortly thereafter the additional

construction of the Glines Canyon Dam completed one of the most ambitious hydroelectric projects

of its time. Although these dams brought cheap electricity to the region, they also blocked all but

five of the roughly 70 miles of critical spawning and rearing habitat for salmon and steelhead in the

Elwha watershed. Over the last century, these impassable blockages reduced the native fish

populations and today, even with hatchery support, these populations hover at critically low

abundance. Without any additional burdens, it is undeniable that these populations face a high risk of

extirpation; indeed four of these species (Puget Sound Chinook, Puget Sound Steelhead, bull trout,

and Pacific eulachon) are listed as threatened under the ESA. Ensuring that these populations persist

and recover is one of, if not the most important aspect of the Elwha River Restoration Project.

NPS is now in the process of removing these dams. Over 10 years, approximately 20 million

cubic yards of sediment will erode into the Elwha River. The accumulation and release of 100 years

of sand, rock, and mud will choke the lower the reaches. The modeling and data demonstrate that

this will significantly diminish the survival rate for adult and juvenile fish and will likely kill the vast

majority as they attempt to move through the sediment-laden lower reaches. Because only the Elwha

dam (lower) and half of the Glines Canyon dam (upper) have been removed thus far, the majority of

the sediment remains behind the remnant structure. The release of this sediment has only just begun

and it is extensive:





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Mouth of the Elwha River during dam removal March 30, 2012, and May 19, 2013 (permission from Tom Roorda).

The decision to use hatcheries to guard against the risk of extirpation from sediment was not

made lightly. As early as 1994, Federal, State, and Tribal scientists recognized that a combination of

natural re-colonization and hatcheries presented the most promising strategy for guarding these





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threatened species. Over time and with almost constant scientific review, the hatchery strategy

evolved, became more sophisticated, and added definition. But one point of consensus consistently

emerged – hatcheries should be utilized to guard against the risk of extirpation. Reasonable minds

may differ on how to achieve restoration, but a cavalier experiment, relying solely on natural re-

colonization to repopulate this river, is an unacceptable risk particularly when the United States has a

duty to fulfill and protect the treaty rights secured by the Lower Elwha Klallam Tribe (“Tribe”) and

to protect the natural resources of Olympic National Park.

Despite limited participation in this extensive public process, the Plaintiffs, a coalition of wild

fishing advocates, now belatedly object to this scientific consensus. Without explaining why they

were largely absent from two decades of environmental review and analysis, they suddenly emerge

and focus their arguments on a small sub-set of the restoration decision documents alleging

violations of NEPA and ESA. But with their narrow focus, Plaintiffs seemingly forget that with

respect to NEPA, no fewer than three Environmental Impact Statements (“EISs”) were prepared for

the Restoration Project, each of which contemplated hatcheries. In light of these extensive analyses

which are commensurate with the scale of the Restoration Project, the use of an Environmental

Assessment (“EA”) for the limited aspect of approving the Hatchery and Genetic Management Plans

(“HGMPs”) is more than reasonable. With respect to the ESA, Plaintiffs similarly argue that

broodstock collection was never analyzed, but here again they completely ignore two analyses by the

NMFS in their Biological Opinions (“BiOps”). Two decades of environmental analyses demonstrate

extensive, thorough, and cogent reasoning by these agencies, and the law is clear: under these

circumstances, the Court should defer to the agencies’ expertise.

II. BACKGROUND

A. The National Environmental Policy Act





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NEPA is a procedural statute, designed to ensure that agencies consider both the

environmental impacts of a proposed action, and reasonable alternatives, before proceeding with a

Federal action. 42 U.S.C. §§ 4321 et seq. NEPA aims to foster informed decisionmaking and public

participation by making relevant environmental information available to both the agency and the

interested public. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). The

Council on Environmental Quality (“CEQ”), an agency created by NEPA within the Office of the

President, has promulgated regulations that guide agencies’ compliance with the statute. 40 C.F.R. §§

1500.1-1508.28.

The NEPA process starts with scoping, a process to determine the scope of the issues to be

addressed in an EA or EIS. 40 C.F.R. § 1501.7. Following scoping, the agency may decide to first

prepare an EA, to determine whether the environmental effects of the action will be significant. 40

C.F.R. §§ 1501.4(b); 1508.9. An EA must include “brief discussions of the need for the proposal, of

alternatives . . . , of the environmental impacts of the proposed action and alternatives, and a listing of

agencies and persons consulted.” 40 C.F.R. § 1508.9(b). In determining whether the effects of a

proposed action will be significant, agencies should consider the context of the action, and intensity

factors specified by CEQ. 40 C.F.R. § 1508.27. If, on the basis of the EA, an agency finds that a

contemplated action does not “significantly affect[] the quality of the human environment,” the

agency may prepare and issue a Finding of No Significant Impact (“FONSI”) outlining why the

project will have no significant impact, and does not require an EIS. Dep’t of Transp. v. Pub. Citizen,

541 U.S. 752, 757‒58 (2004); 40 C.F.R. §§ 1501.4(e), 1508.13. Agencies may cooperate with other

agencies in the preparation of a NEPA document, and, after an independent review, may adopt the

NEPA document of another agency. 40 C.F.R. §§ 1501.6; 1506.3.

B. The Endangered Species Act





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1. Section 7(a)(2) of the ESA

ESA § 7(a)(2) directs each Federal agency to insure, in consultation with FWS or NMFS,

that “any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the

continued existence of” any listed species or destroy or adversely modify designated critical habitat.

16 U.S.C. § 1536(a)(2). In order to determine if ESA § 7(a)(2) applies, the action agencies (those

performing the action) make an initial determination of whether their actions “may affect” listed

species or critical habitat. 50 C.F.R. § 402.14(a). If the action agencies determine that their actions

“may affect” listed species or critical habitat, they must pursue consultation with the appropriate

consulting agency (here NMFS and/or FWS). 50 C.F.R. §§ 402.13, 402.14. ESA consultation may

proceed in either of two ways: informal or formal. If either the action agency or consulting agency

determines that the proposed action is “likely to adversely affect” listed species or designated critical

habitat, the agencies must engage in formal consultation. 50 C.F.R. §§ 402.13(a), 402.14(a)–(b).

Formal consultation concludes with the issuance of a BiOp by the consulting agency assessing the

likelihood of jeopardy to the species and whether the proposed action will result in destruction or

adverse modification of critical habitat. 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(g), (h).

If at the conclusion of the consultation process, NMFS or FWS issues a “no jeopardy” BiOp,

but determines that the action may incidentally “take” individual members of a listed species, the

consulting agency includes an incidental take statement (“ITS”) specifying the impact of such take,

reasonable and prudent measures necessary or appropriate to minimize the impact of the take, and

mandatory terms and conditions to implement the reasonable and prudent measures. 16 U.S.C. §

1536(b)(4)(i)-( iv). Any incidental take of species that is in compliance with an ITS’ terms and

conditions is not considered to be prohibited take. 16 U.S.C. § 1536 (o)(2).

2. Section 4(d) of the ESA





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Under ESA § 4(d), NMFS must issue regulations as it “deems necessary and advisable to

provide for the conservation of such [threatened] species.”4 16 U.S.C. § 1533(d). NMFS or FWS

may extend all or some of the protections afforded endangered species under ESA § 9 to threatened

species by regulation, often referred to as 4(d) Rules. Puget Sound Chinook, steelhead, and bull trout

are listed as threatened and are generally protected against “take” under 4(d) Rules. 50 C.F.R. §

223.203(a); 50 C.F.R. § 17.44(w). However, NMFS has limited the reach of this take prohibition.

50 C.F.R. § 223.203(b).

One of these limitations, referred to as Limit 6, exempts “actions undertaken in compliance

with a resource management plan developed jointly by the States of Washington, Oregon and/or

Idaho and the Tribes ....” 50 C.F.R. § 223.203 (b)(6). Limit 6 provides that the Rule’s “take”

prohibitions “do not apply to actions undertaken in compliance with a resource management plan

developed jointly by the State[] of Washington . . . and the Tribes” provided that certain conditions

are satisfied. Id. The primary condition is that “that implementing and enforcing the joint tribal/state

plan will not appreciably reduce the likelihood of survival and recovery of affected threatened

ESUs.” Id. § 223.203(b)(6)(i).

C. Factual Background

1. Restoration of the Elwha River

In 1992 Congress passed the Elwha River Ecosystem and Fisheries Restoration Act (“Elwha

Act”), Pub. L. 102-495, 106 Stat. 3173 (Oct. 24, 1992), which instructed the Secretary of the Interior

to acquire the Elwha and Glines Canyon dams and submit to Congress a report for “full restoration of

the Elwha River ecosystem and the native anadromous fisheries.” Elwha Act § 3(c). The DOI 4 The ESA creates two categories of listed species protected by the Act, endangered and threatened species. An “endangered” species is any species “which is in danger of extinction throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6). The statutory prohibition against “take” in § 9 applies on its face only to endangered species. Id. § 1538(a). A “threatened” species is one that “is likely to become an endangered species within the foreseeable future.” Id. § 1532(20). Thus, unless there is a 4(d) Rule, there is no prohibition on the take of a threatened species.





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submitted the Elwha Report to Congress in 1994. NPS 2625. Following submission of the Elwha

Report, NPS analyzed alternatives for achieving full restoration of the Elwha River and assessed

environmental impacts pursuant to NEPA. In 1995, NPS completed the Elwha River Ecosystem

Restoration EIS, which evaluated alternatives for restoring the Elwha River by wholly or partially

removing the dams, or modifying them to incorporate fish passage capabilities. Id. 2374

(programmatic EIS).

NPS ultimately chose removal of both dams as the only alternative that would meet the stated

goal of the Elwha Act, i.e., full restoration. In 1996, NPS completed the Implementation EIS, which

analyzed alternatives for, and environmental impacts of, removing both hydroelectric dams and

implementing fisheries restoration measures. NPS 1841 (implementation EIS); NPS 1822 (1996

Record of Decision). This analysis also carefully examined the level of expected sedimentation

resulting from the dam removal and the effect it would have on fish. Id. 2067-68. NPS found that

there were three suspended sediment concentration thresholds for fish: 200 parts per million (“ppm”)

(causing physiological stress, reduced growth); 1,000 ppm (lethal from chronic exposure); 10,000

ppm (lethal from acute exposure). Id. 2067. NPS’s modeling predicted that there would be four

distinct phases in which there would be “direct losses” of fish, with sedimentation ranges rising as

high as 51,000 ppm. Id. 2068 (table 46); id. 2068-70 (discussing the various hatchery programs to

ameliorate the effects from sedimentation).

NPS’ Record of Decision (“ROD”) on the 1996 EIS described its selected action, as the

initiation of “river restoration by removing both dams over a two-year period and implementing fish

restoration and revegetation for longer periods.” NPS 1822. Due, in part, to sediment concerns, the

use of hatcheries, outplanting of eggs and fish, river acclimation ponds, harvest management, and





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fish hatchery improvements were among the fish restoration measures included in the 1996 ROD.

Id. 1823.

In 2005, NPS prepared a Supplemental EIS to examine significant changes in water supply,

water quality, and flood control mitigation associated with the dam removal projects. NPS 0810.

Among the changes, NPS analyzed moving the Tribal hatchery and the creation of rearing ponds “to

ensure the survival of Elwha Chinook during dam removal.” Id. 0811. Despite multiple

opportunities, Plaintiffs did not submit any comments on the Implementation or Supplemental EISs

objecting to the use of hatcheries.

2. The Decision to Use Hatcheries

Throughout the evaluation and planning processes, special emphasis and study has been

given to fish restoration and the role of hatcheries on the Elwha River. In 1994, DOI released the

first iterations of the Fish Restoration Plan, which appeared in the Elwha Report, and as an appendix

in the 1996 Draft EIS. NPS 1823-24. The 1996 plan evaluated a number of different restoration

options and determined that “[h]atchery support is necessary to develop and maintain broodstock for

juvenile outplanting,” and that “[o]utplanting would be done for at least ten years to allow for

uncertainties in stock availability and reintroduction methods.” NPS 2279. For the nine stocks of

salmon and steelhead, a mixed strategy of natural re-colonization with hatchery outplanting was

found to hold the most promise for recovery of these stocks after dam removal. Id. 2280-87. During

the next decade this plan was further studied, reviewed, and modified to reflect scientific advances.

NPS 246-49, 395-408, 409-573, 1218-1371, 1429-1509, 1575-1587, 1753-1787. These iterations

underwent review by independent scientists, including the Hatchery Scientific Review Group

(“HSRG”). NPS 1-192, 1389-1391.





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In 2008, the Northwest Fisheries Science Center published another iteration of the Fish

Restoration Plan as a technical memorandum. NMFS 7154. Like its predecessors, the 2008 plan

reflects scientific consensus to rely on “artificial propagation for certain stocks as a primary and

effective means to meet plan preservation and restoration objectives.” Id. 7155. It also recognizes

that there must be a suite of strategies and activities, implemented by Federal and non-Federal

parties, to restore the Elwha River and native fish populations. Id. 7174. The overwhelming

conclusion by the scientists who have participated over the years, is that hatcheries are a critical tool

to protect and restore Elwha River salmon and steelhead. NPS 1606-1607, 1830-1831, 2203-2204;

NMFS 8423-8614 (2012 HSRG review).

3. Consultations Under Section 7(a)(2) of the ESA.

In addition to the analyses in the Fish Restoration Plan, there have been multiple

consultations under ESA § 7(a)(2) analyzing the effects of certain activities during the respective

stages of development and implementation of dam removal and restoration. As more information

and specificity became available, the involved Federal agencies initiated, or reinitiated consultation

as appropriate, resulting in the issuance of multiple BiOps from NMFS and FWS.

a. NMFS’ Biological Opinions on Puget Sound Chinook, Steelhead, Eulachon, and Orcas.

In response to the ESA listing of Puget Sound Chinook, NPS initiated consultation with

NMFS on February 17, 2000. NPS requested consultation on a number of different actions

associated with the dam removal project, including the use of hatcheries to restore salmon runs.

ELWHA 0005 (describing the proposed action under consultation as reliance “on a combination of

natural recolonization, the outplanting of juvenile salmon and steelhead . . . and the importing of

donor stocks if the native stock has been extirpated.”). In 2000, NMFS found that the proposed





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action was likely to adversely affect Puget Sound Chinook salmon in the short term, which required

formal consultation. Id. 0002; 0022.

During the 2001-2004 timeframe, NPS made a number of changes to the proposed action and

reinitiated consultation by submitting revised biological assessments to NMFS. EULA 0005-6

(discussing the consultation history). These revised biological assessments also recognized NPS’

decision to utilize hatchery supplementation during the dam removal process and the description of

the proposed action included (1) funding for the construction and relocation of the Tribal hatchery;

(2) intensified broodstock collection for hatchery incubation; and (3) outplanting of juvenile

anadromous fish from the hatchery. Id. 0007. NMFS also analyzed the effect of hatchery operations.

For example, with respect to Puget Sound Chinook, NMFS found:

Following dam removal, the hatchery program will be important in helping to rebuild the populations to numbers that ultimately will be naturally sustainable. As dam removal progresses, elevated levels of turbidity will be common, and as previously described, habitat quality in the lower river will be severely reduced by pulses of suspended and bed load sediment. Juveniles reared in numerous facilities will be introduced back to the Elwha River when dam removal operations have ceased and juvenile fish will freely emigrate to the estuary.

Id. 0041. NMFS also discussed the effect of broodstock collection and necessary escapement levels

to sustain the population. Id. 0041-42. Based on the best available information and science, NMFS

concluded that the proposed action was not likely to jeopardize Puget Sound Chinook and steelhead.

Id. 0047.

On July 19, 2011, NPS again reinitiated consultation with NMFS and requested formal

consultation on all of the listed species. NMFS 7876. This occurred because the “proposed action

had become more developed [and] some of the assumptions underlying the 2006 [BiOp had]

changed . . . .”). Id. NPS and NMFS clarified that they were consulting only on certain aspects of

hatchery operations directly related to the proposed action of dam removal and fishery restoration,





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and NMFS would be conducting a separate, parallel consultation on the Tribal and State HGMPs. Id.

7884. NMFS explained:

the proposed action includes some hatchery program components. However, beyond the measures listed above, the proposed action does not include ongoing salmon and steelhead hatchery programs operated by the Washington Department of Fish & Wildlife (WDFW) or Lower Elwha Klallam Tribe (LEKT) . . . . These WDFW and LEKT hatchery programs will therefore seek their own Federal approval and ESA coverage following the submission by those entities of Hatchery Genetic Management Plans (HGMPs) and the subsequent reviews prescribed at 50 CFR 223.203(b)(5) and (6), and 223.204. That review is currently underway in a separate consultation.

Id. Although the proposed action did not include the operational plans under development in the

HGMPs, NMFS nevertheless analyzed the effect of these hatchery operations on listed species in its

July BiOp. It found that the “proposed action will have varied effects, most prominently, injury and

death of individual adult and juvenile Chinook, steelhead and eulachon in the lower river from

exposure to excessive turbidity and sediment levels, and from stock status monitoring efforts during

and after dam removal.” Id. 7915. But NMFS concluded that these short-term adverse effects would

be countered by continued hatchery supplementation that would guard against the risk of extirpation

during sediment releases. Id. NMFS ultimately concluded that the proposed action, including the

effects from the hatcheries, was not likely to jeopardize Puget Sound Chinook, steelhead, and

eulachon, and would not adversely modify the respective designated critical habitat. Id. 7916-17.

NMFS also issued an ITS for the activities under consideration. Id. 7917-22. The July ITS

included a number of reasonable and prudent measures, as well as terms and conditions to ensure

implementation of those measures. Id. NMFS subsequently issued an amended ITS. NMFS 13194-

200.

b. The Tribe and State Hatchery and Genetic Management Plans , NMFS’ December BiOp, EA, and Rule 4(d) Approval.





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Since approximately 2004 there has been an on-going process of evaluating the Tribe and

State HGMPs under Limit 6 for Elwha hatchery programs. The proposed HGMPs have undergone

significant scientific reviews and provide an operational plan for how certain hatchery facilities will

be run with respect to different stocks of salmon and steelhead. NMFS 16132.

On October 16, 2012, NMFS published notice in the Federal Register that it was formally

evaluating these HGMPs and that a draft EA was available for public comment. 77 Fed. Reg. 63294

(Oct. 16, 2012). The draft EA incorporated by reference the prior NPS EISs, and analyzed four

alternatives in detail. NMFS 9716; 9723-25. Under Alternative 1, the “no action” alternative, NMFS

would take no action to either approve or reject the HGMPs, and assumed the State and Tribe would

operate the hatcheries under baseline conditions. Under Alternative 2, the proposed action, NMFS

would determine that the HGMPs met the criteria of the 4(d) Rule, and the hatchery programs would

be implemented as submitted. Alternative 3 analyzed the possibility of NMFS approving revised

HGMPs with a “sunset term,” stopping hatchery releases around 2019. Alternative 4 considered the

effects of a decision by NMFS that the submitted HGMPs did not meet the requirements of the 4(d)

Rule, and hatchery programs would be terminated immediately. NMFS accepted comments on the

draft EA for 30 days, and received four comment letters, one on behalf of Plaintiffs, opposing the

proposed action, and three letters generally in support. NMFS reviewed these letters, made revisions

to the EA based on public comments, and prepared a final version.

As a parallel process, NMFS also initiated consultation under the ESA with its own

consultation branch on the proposal to approve the HGMPs under Limit 6 of the 4(d) Rule and

related Federal funding for implementation of the HGMPs. NMFS 15906 (explaining consultation

history). This consultation was extensive, totaling 196 pages in which NMFS provided its evaluation





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of the HGMPs and the beneficial and adverse effects from the proposed hatchery programs. NMFS

15898-6100. In short, the December BiOp concludes:

The already depressed populations are now further threatened with extinction from the effects of the release of massive quantities of stored sediments as the dams are removed. NMFS agrees with the conclusions of the HSRG (2012) that the supportive breeding strategies proposed in the HGMPs are likely to be successful at preserving the existing genetic resources of salmon and steelhead throughout the period of adverse habitat conditions during and immediately following dam removal in the Elwha River Basin. . . without proactive intervention, the conditions that will be present in the river below the dams during and immediately following dam removal may result in mortality rates approaching 100% for any naturally rearing fish, virtually eliminating local, genetically viable salmon and steelhead brood sources for recolonization. Fish straying from other river systems in the Salish Sea area might repopulate the Elwha watershed over time, but extirpation of remaining native salmon and steelhead populations resulting from dam removal is not an acceptable option . . .

NMFS 16081. In addition, NMFS also compiled an extensive 4(d) Rule evaluation and

recommendation to ensure compliance with Limit 6. NMFS 16131-204.

On December 10, 2012, NMFS approved the HGMPs for Puget Sound steelhead, Puget

Sound Chinook, coho, chum, and pink salmon. NMFS 016205-11. NMFS found that these hatchery

programs met the applicable criteria under Limit 6. Id.; 50 C.F.R. § 223.203(b)(6). Along with its

ROD, NMFS issued the final EA, and a FONSI pursuant to NEPA. NMFS 15375 (Final EA); 15499

(FONSI). In the FONSI, NMFS explained that approval of the HGMPs did not involve highly

uncertain effects or cumulatively significant impacts, and would not establish a precedent for future

actions; thus, there would be no significant impact on the environment. NMFS’ conclusion that the

hatchery programs meet the criteria under Limit 6 is supported by years of collaboration with the

State and Tribes, extensive independent scientific review, and multiple BiOps issued by NMFS and

FWS, as well as all of the underlying EISs and EA.

III. STANDARD OF REVIEW





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All of the Plaintiffs’ remaining claims for relief are reviewed in accordance with an APA

standard of review. Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1017 (9th Cir. 2012) (en

banc) (“An agency's compliance with the ESA is reviewed under the [APA].”); see also Grand

Canyon Trust v. U.S. Bureau of Reclamation, 691 F.3d 1008, 1016 (9th Cir. 2012) (“We review

Reclamation and FWS's compliance with the ESA and with NEPA under the standard set forth in the

APA.”). Plaintiffs agree that all of their remaining claims are reviewed under an APA standard of

review. ECF 153 at 27.

Under the APA, a plaintiff must satisfy a “high threshold” to establish that agency action is

unlawful. River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir. 2010). In recent

years, the Ninth Circuit has strongly affirmed the narrow and deferential nature of that APA standard.

See Lands Council v. McNair, 537 F.3d 981, 988 (9th Cir. 2008) (en banc) (overturning prior

jurisprudence that had “shifted away from the appropriate standard of review”). The Court’s role is

“not to make its own judgment” on the matters considered and resolved by the agency, as the

standard of review “does not allow the court to overturn an agency decision because it disagrees with

the decision.” River Runners, 593 F.3d at 1070. To the contrary, the reviewing court’s only “task is

simply to ensure that the agency ‘considered the relevant factors and articulated a rational connection

between the facts found and the choices made.’” Nw. Ecosystem Alliance v. FWS, 475 F.3d 1136,

1140 (9th Cir. 2007) (citations omitted). Moreover, courts must not draw new conclusions from a

“battle of the experts,” rather than affording the underlying agency decision the proper level of

deference. Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005); Marsh v. Or. Natural Res.

Council, 490 U.S. 360, 378 (1989) (“[A]n agency must have discretion to rely on the reasonable

opinions of its own qualified experts even if, as an original matter, a court might find contrary views

more persuasive.”).





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IV. MOTION TO STRIKE PLAINTIFFS’ EXTRA RECORD EVIDENCE

In accordance with Local Rule 7(g), Federal Defendants respectfully move to strike

Plaintiffs’ submission of extra-record evidence and their reliance on such evidence in their opening

memorandum. More specifically, we move to strike the Second Declaration of Dr. Jack A. Stanford,

ECF 157, the Second Declaration of Dr. Gordon Luikart, ECF 156, the Seventh Declaration of Brian

Knutsen, ECF 155, including the attached exhibits 1-9 and 14-16 to that declaration, as well as

Plaintiffs’ reliance on this extra-record evidence in their memorandum.5

Claims subject to the APA standard of review are decided on the basis of the administrative

record. Occidental Eng’g Co. v. INS, 753 F.2d 766, 769 (9th Cir. 1985); see Camp v. Pitts, 411 U.S.

138, 142 (1973) (the “focal point for judicial review” of an agency decision “should be the

administrative record already in existence, not some new record made initially in the reviewing

court”). 6 Despite this clear instruction, Plaintiffs attempt to divorce the standard of review from the

scope of review. They contend that the Court may create a new record by considering extra-record

evidence, yet somehow still utilize a deferential APA standard of review. This is flatly inconsistent

with recent Supreme Court precedent. See Kappos v. Hyatt, 132 S.Ct. 1690 (2012) (explaining that

when a court accepts extra-record evidence it must act as a fact-finder rather than a court of review:

“The [agency], no matter how great its authority or expertise, cannot account for evidence that it has

never seen. Consequently, the district court must make its own findings de novo and does not act as

5 Federal Defendants are not moving to strike the remaining declarations because these appear to be offered only to support standing allegations. Federal Defendants are also not moving to strike Plaintiffs’ Exhibits 10-13, which were addressed in Federal Defendants’ Response to Plaintiffs’ Motion for Judicial Notice and/or to Complete the Record. ECF 162 at 2 n.3. 6 Although the Court denied Federal Defendants’ first motion for protective order, ECF 65, it does not appear the Court reached the issue of the proper scope of review for an ESA citizen-suit claim. As provided above and in previous briefing, it is Federal Defendants’ position that the Court should limit its review to the administrative record. However, to the extent the Court considers Plaintiffs’ proffered declarations and exhibits, Federal Defendants provide the rebuttal Declarations of Dr. Brian Winter (“Winter Decl.); Dr. Craig Busack (“Busack Decl.”); Timothy Tynan (“Tynan Decl.”); and Carter Howell (“Howell Decl.”) for the Court’s consideration.





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the ‘reviewing court’ envisioned by the APA. See 5 U.S.C. § 706.”). The introduction of extra-

record evidence circumvents basic administrative principles of deference, which are fundamental to

an APA standard of review.

Moreover, Plaintiffs only remaining ESA claims in this case allege a violation of ESA §

7(a)(2). An en banc Ninth Circuit directly held that ESA § 7(a)(2) claims are reviewed based on the

administrative record. Karuk Tribe, 681 F.3d at 1017 (“Because this is a record review case, we

may direct that summary judgment be granted to either party based upon our review of the

administrative record.”) (emphasis added). This holding has been reaffirmed by every subsequent

Ninth Circuit panel addressing an ESA § 7(a)(2) case since that decision. Grand Canyon Trust, 691

F.3d at 1016; Ctr. for Biological Diversity v. BLM, 698 F.3d 1101, 1109 (9th Cir. 2012) (“The

Administrative Procedure Act (“APA”) governs our review of agency decisions under the ESA.”).7

Accordingly, the Court should strike this extra-record evidence and Plaintiffs’ reliance on it in their

memorandum.

V. ARGUMENT

A. Federal Defendants fully complied with NEPA.

1. Defendants prepared an EA on the decision to approve the HGMPs and concluded there would be no significant environmental impact.

NMFS, in cooperation with NPS and BIA, prepared an EA examining the environmental

impacts of, and alternatives for, NMFS’ decision on the HGMPs submitted by the State and Tribe.

NMFS 15375. NMFS’s determination that approval of the HGMPs would have no significant impact

on the physical environment was reasonable, and therefore lawful, and Plaintiffs have not

7 As explained in our previous briefing, ECF 59, 61, the ESA does not contain a standard of review and the Ninth Circuit has instructed that in such absence, the default is the APA. Ninilchik Traditional Council v. U.S., 227 F.3d 1186, 1193 (9th Cir. 2000). The APA specifically states that “the court shall review the whole record or those parts of it cited by a party . . . .” 5 U.S.C. § 706 (emphasis added). There are of course narrow exceptions, but Plaintiffs have not argued that the proffered evidence falls under these exceptions. See ECF 162 at 2 n.2.





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demonstrated any aspect of the NEPA process was arbitrary and capricious. NMFS 15499-509. As

long as the EA took a reasonable approach in addressing NEPA’s context and intensity factors, it

must be upheld. Northwest Envt’l Def. Ctr. v. U.S. Army Corps of Eng’rs, 817 F. Supp. 2d 1290,

1311 (D. Or. 2011).

a. The context of the hatchery plans is not extraordinary.

Plaintiffs argue that the context of the HGMP decision is extraordinary, but Plaintiffs’

description of context is misguided. It strays well beyond the specific agency action being

analyzed—whether to approve the HGMPs—and focuses on Elwha River restoration as a whole. See

ECF 153 at 20. Federal Defendants have already taken into account the extraordinary context of the

restoration project itself by preparing several EISs.8 Contrary to Plaintiffs’ assertions, NMFS’

decision whether to approve the HGMPs is not extraordinary in context—it is but a small piece of the

greater Restoration Project. The choice to use hatcheries as part of the collaborative restoration effort

was made in the 1996 ROD, supported by the 1996 Implementation EIS.9 NPS 1827. NMFS’

decision to approve HGMPs specifying the precise numbers and species of fish that may be released

is a far narrower action, appropriately analyzed in an EA. The CEQ regulations encourage agencies

to “tier their environmental impact statements to eliminate repetitive discussions…and to focus on

the actual issues ripe for decision at each level of environmental review.” 40 C.F.R. § 1502.20.

Tiering is used when an agency moves “[f]rom a program, plan, or policy environmental impact

statement to a program, plan, or policy statement or analysis of lesser scope or to a site-specific

8 Defendants have already fulfilled any NEPA requirement that the overall context of the Elwha River restoration program and its effect on native fish be recognized as extraordinary. The Elwha River restoration itself has already been the subject of three EISs—the 1995 EIS examining how best to restore the river, the 1996 EIS analyzing alternatives for dam removal, sediment management, and native fish restoration, and a 2005 Supplemental EIS updating these analyses. All three of these EISs contemplated and described the use of hatchery supplementation as a means of preserving and restoring native salmon and steelhead. NPS 2515-16; 2575; 2278; 2203-04; 818-19; 839. 9 To the extent Plaintiffs argue the 1996 EIS did not consider fish releases in the lower river, they are wrong. See, e.g., NPS 1905 (“Below river mile 16, outplanting would be done by conventional tank truck and from the hatchery facilities”) (emphasis added).





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statement or analysis.” 40 C.F.R. § 1508.28 (emphasis added). That is exactly what the agencies have

done here. NPS completed EISs to analyze the broader plan for restoring the Elwha River, and

NMFS has now completed an EA, with associated BiOps, which incorporates the prior EISs by

reference and analyzes the environmental impacts and alternatives for an issue of lesser scope—how

the hatchery programs contemplated in the 1995, 1996, and 2005 EISs will be managed by the State

and Tribe. NMFS 15392. Thus, NMFS’ determination that approving the HGMPs would not have a

significant impact on the environment must be viewed in light of the fact that three EISs addressing

hatchery supplementation and sedimentation, and now an EA specific to the HGMPs, have been

prepared.

b. The action will not significantly impact unique characteristics of the geographic area.

NMFS properly concluded that the proposed hatchery programs are “not expected to result in

substantial impacts on unique areas, such as historical or cultural resources, park land, prime

farmlands, wetlands, wild and scenic rivers, or ecologically critical areas.” NMFS 15504; 40 C.F.R.

§ 1508.27(b)(3). With respect to impacts on wilderness, NMFS determined, in cooperation with NPS

as manager of the Olympic Wilderness, that presence of hatchery-origin fish was “compatible with

the Wilderness Act policy” and values. NMFS 15488; 15890. NMFS also considered impacts on

critical habitat for ESA-listed fish, noting that “habitat impacts would be small under the proposed

hatchery programs… and are not considered significant.” NMFS 15504; 16079. The record supports

NMFS’ conclusion that the hatchery programs would not significantly affect unique geographic

areas. Soda Mtn. Wilderness Council v. BLM, 2013 WL 1975852, *17 (D. Or., May 10, 2013).

Plaintiffs nevertheless argue that NMFS should have considered “the absence of hatchery

fish” as a unique characteristic of the area that will be “destroyed” by the approved hatchery plans.

ECF 153 at 30. But CEQ’s examples of “unique characteristics” include designated areas or





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protected resources like park lands, wild and scenic rivers, or cultural or historical resources. Id.

“Absence of hatchery fish” does not comport with CEQ’s other examples, does not have legal

significance under 40 C.F.R. § 1508.27(b)(3), and need not be specifically addressed in assessing

intensity. Moreover, the concept that hatchery fish would help recolonize the upper Elwha River is

not new to the proposed action, and has been previously analyzed.10 The 1996 EIS recognized that

reintroduced salmonids would recolonize upriver areas and interact with rainbow trout and other

resident fish. NPS 2061; 2065. NMFS’ EA, too, recognizes the fact that hatchery-raised steelhead

will be able to access areas above the dams, and may interact with trout. NMFS 15426. But Plaintiffs

fail to undermine NMFS’ conclusion that potential impacts from hatchery fish in the upper river will

not be significant.

c. The action will not establish a precedent for future actions.

Agencies must also consider the “degree to which the action may establish a precedent for

future actions with significant effects or represents a decision in principle about a future

consideration.” 40 C.F.R. § 1508.27(b)(6). The purpose of considering this factor is to “avoid the

thoughtless setting in motion of a chain of bureaucratic commitment that will be progressively harder

to undo the longer it continues.” Presidio Golf Club v. NPS, 155 F.3d 1153, 1162-63 (9th Cir. 1998)

(quotation omitted).

NMFS properly concluded that approval of the hatchery programs would not establish such a

precedent. First, analyzing the HGMPs in an EA rather than an EIS was not precedent-setting—“the

proposed hatchery programs are similar in nature and scope to similar hatchery actions over the past

10 Plaintiffs’ suggestion that the upper Elwha river is a pristine environment untouched by hatchery fish but-for the approved HGMPs finds no support in the record. Although there is no ongoing hatchery supplementation in the upper river, areas above the dams have been stocked with hatchery rainbow trout in the past. NPS 1962; NMFS 8501 (some resident rainbow trout exhibit genetic introgression with domesticated strains). Additionally, dam removal alone will reopen the upper Elwha to hatchery-origin salmonids. “Fish produced by the hatcheries…and their progeny would continue to enter the Elwha River after the dams come down, even if the hatcheries stopped immediately.” NPS 2203. Thus, reopening the upper Elwha to hatchery fish was analyzed in the prior EISs.





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several years,” like the Snake River and Hood Canal summer chum salmon programs “analyzed

through similar ESA determinations and NEPA reviews.” NMFS 15506. Second, approval of the

Elwha HGMPs did not “thoughtless[ly] set[] in motion” any future action. Presidio Golf Club, 155

F.3d at 1162. Approval of these HGMPs does not commit NMFS to approve any future HGMPs, or

preclude NMFS from preparing an EIS instead of an EA to examine the impacts of future submitted

HGMPs.11 NMFS’ decisions on future HGMP approval requests will depend on the merits of the

hatchery plans at issue—the scope of the particular HGMPs, the location, fish species, and other

attributes specific to those plans. NMFS 15888 (“NMFS reviews each HGMP ESA approval request

independently….”). As the Ninth Circuit has noted, “EAs are usually highly specific to the project

and the locale, thus creating no binding precedent.” Barnes v. U.S. Dept. of Transp., 655 F.3d 1124,

1140 (9th Cir. 2011) (citing Town of Cave Creek v. FAA, 325 F.3d 320, 332 (D.C. Cir. 2003)). That

is the case here, and NMFS reasonably concluded no precedent would be established.

Plaintiffs argue this intensity factor must be implicated because “removal of the dams on the

Elwha River is unprecedented,” and has “the potential to establish a significant precedent for future

dam removal projects throughout the United States.” ECF 153 at 31. This argument ignores the fact

that NMFS’ EA is the fourth NEPA document associated with restoration—three previous EISs have

taken into account the unprecedented nature of Elwha restoration as a whole.

d. The effects of the action are not “highly uncertain.”

Agencies must consider “the degree to which the possible effects on the human environment

are highly uncertain or involve unique or unknown risks.” 40 C.F.R. § 1508.27(b)(5). As a

preliminary matter, the Court should not consider most of Plaintiffs’ arguments regarding uncertainty

11 As Plaintiffs concede, NMFS has begun scoping for an EIS that will examine the environmental impacts of State and Tribal resource management plans for hatchery programs in Puget Sound. ECF 153 at 26; 76 Fed. Reg. 45,515 (July 29, 2011); see NMFS 15888. This alone discredits Plaintiffs’ implication that NMFS seeks to use the Elwha EA as a precedent to avoid preparing EISs associated with hatcheries.





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because Plaintiffs failed to alert the agency to these issues in comments on the draft EA.12

Accordingly, Plaintiffs have failed to exhaust administrative remedies, and their arguments involving

“uncertainties” never raised in their comments on the draft EA are waived. Conserv. Cong. v. U.S.

Forest Serv., 371 Fed. Appx. 723, 728 (9th Cir. 2010) (issue not raised in comments waived); Grand

Canyon Trust v. U.S. Bureau of Recl., 623 F. Supp. 2d 1015, 1030 (D. Ariz. 2009) (same).

Even if the Court considers Plaintiffs’ belated arguments alleging scientific uncertainty, they

fail on the merits. NEPA’s “regulations do not anticipate the need for an EIS anytime there is some

uncertainty, but only if the effects of the project are ‘highly’ uncertain.” Envtl. Prot. Info. Ctr. v. U.S.

Forest Serv., 451 F.3d 1005, 1011 (9th Cir. 2006). The effects of the hatchery programs here are not

highly uncertain. As the FONSI recognizes, the “proposed operation of the programs is similar to

other recent hatchery operations in many areas of the Pacific Northwest, and the procedures and

effects are well known.” NMFS 15505. Hatchery supplementation will help preserve and restore

wild salmonid populations in the wake of dam removal. NMFS 15413. Despite potential genetic

diversity and fitness reduction risks associated with hatchery fish production—risks the EA

acknowledges —NMFS explains that the ecological advantages of hatcheries prevail over any

potential risk of genetic effects:

On balance, the benefits of artificial propagation for reducing extinction risk and for rebuilding severely depressed fish populations may outweigh the possibility of short-term fitness loss. . . . [I]n populations with few or no wild fish returning to spawn, hatchery programs can serve as the genetic reserve for the population and prevent the extirpation of the naturally-occurring species. This risk of extirpation is especially high in the Elwha Basin, where the extended release of sediment from dam removal has the potential to kill substantial numbers, if not all, of the remaining natural-origin salmon and steelhead.

12 Plaintiffs’ comments mentioned uncertainty about only one issue: NMFS’ conclusion that high levels of sediment from dam removal would threaten the existence of native salmon and steelhead. NMFS 10852; 10855. Plaintiffs’ comments did not assert uncertainty with respect to: the level of salmonid reproductive fitness loss; the duration of the hatchery programs; the risk Elwha fish would stray to other watersheds; or mitigation measures. See id.





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Id.; see also 16010 (“hatchery intervention is a legitimate and useful tool” to avert population

extinction). The EA also recognizes that hatchery programs “benefit natural-origin salmon and

steelhead through marine-derived nutrient cycling effects, by preserving and increasing abundance

and spatial structure, retaining genetic diversity, and potentially increasing productivity of a natural-

origin population….” NMFS 15412; 15503. Thus, the record reflects near-certainty that hatchery

supplementation will preserve and restore Elwha salmonid populations. ECF 153 at 33; NMFS

16017 (“it is highly likely that supportive breeding is needed to preserve remaining diversity of the

native winter-run [steelhead] population”); 16054 (hatchery programs are “essential to the

preservation and recovery of individual populations” of ESA-listed fish).

Plaintiffs attempt to flyspeck the EA and BiOp, but an agency’s candid disclosure of some

uncertainty does not dictate preparation of an EIS. See Envtl. Prot. Info. Ctr., 451 F.3d at 1011. For

example, although NMFS acknowledged that the precise magnitude and duration of fitness loss from

genetic introgression is unknown, the risk is not “highly uncertain.” NMFS 15413. Several recent

studies demonstrate “demographic benefits to natural production from hatchery fish spawning in the

wild,” and “genetic risk management measures” in the HGMPs would further reduce the potential for

domestication effects. Id.; NMFS 16031-32; 16033-34. Similarly, the fact that the hatchery plans

contain implementation triggers based on population viability, rather than a calendar schedule, does

not make environmental effects “highly uncertain.” ECF 153 at 32; NMFS 16133; see Klamath

Siskiyou Wildlands Ctr. v. Grantham, 2013 WL 1420259, *9 (E.D. Cal. April 8, 2013) (NEPA

allows agencies to use adaptive management).13 The risk of Elwha fish straying to spawn in other

rivers is also not highly uncertain; NMFS summarizes typical stray rates observed for salmon and

13 Indeed, Plaintiffs take the BiOp’s use of the phrase “highly uncertain” out of context. ECF 153 at 32. The BiOp states that the “duration of time required for the lower river areas and the estuary to recover to properly functioning statuses...is highly uncertain.” NMFS 15988. But the time required for the Elwha River to recover from sediment outflow was analyzed in the 1995, 1996, and 2005 EISs and does not require yet another EIS.





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steelhead and outlines best management practice measures from the hatchery plans that will “reduce

the risk of outbreeding depression and straying.” NMFS 16018; 16022; 16023-24 (straying effects on

Dungeness River steelhead would be “unsubstantial”). “Simply because a challenger can cherry pick

information and data out of the administrative record to support its position does not mean that a

project is highly controversial or highly uncertain.” Native Ecosystems Council v. U.S. Forest Serv.,

428 F.3d 1233, 1240 (9th Cir.2005).

Plaintiffs further argue there are uncertainties regarding mitigation measures, but they fail to

demonstrate that mitigation is so highly uncertain as to require an EIS. 40 C.F.R. 1508.27(b)(5). An

agency “is not required to develop a complete mitigation plan detailing the precise nature…of the

mitigation measures so long as the measures are developed to a reasonable degree.” Bering Strait

Citizens for Resp. Res. Dev. v. U.S. Army Corps of Eng’rs, 524 F.3d 938, 955 (9th Cir. 2008)

(quoting Nat’l Parks & Conserv. Ass’n v. Babbitt, 241 F.3d 722, 734 (9th Cir. 2001)) (internal

quotation marks omitted). Mitigation and monitoring measures for the HGMPs incorporate

recommendations from the Monitoring and Adaptive Management Plan (MAMP), a 142-page

scientific framework document that “present[s] strategies to address uncertainty.” NMFS 15944; see

19059-200. 14 The HGMPs and NMFS’ December BiOp commit the operators to certain measures,

such as monitoring juvenile out-migrant salmonids, and genetic analysis of natural smolts. NMFS

15941. Other measures such as spawning surveys, fish relocation, and tagging will be conducted as

part of an NPS monitoring plan. NMFS 16050-51. The FONSI explains that the HGMPs reduce

uncertainties in the hatchery programs by providing “explicit steps to monitor and evaluate these

uncertainties in a manner that allows timely adjustments to minimize or avoid adverse impacts.”

NMFS 15504. “NEPA specifically allows agencies to use adaptive management…to adapt its

mitigation measures in response to the trends observed.” Klamath Siskiyou Wildlands Ctr., 2013 WL 14 Although not all actions outlined in the MAMP will be funded, many received funding in 2012-13. See NMFS 19167.





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1420259 at *9 (quoting W. Watersheds Project v. BLM, 2011 WL 1630789 at *3 (D. Nev. 2011)).

Plaintiffs fail to demonstrate that any environmental effects are so “highly uncertain” that they could

rise to the level of significance.

e. The effects of the action are not “highly controversial.”

NMFS reasonably determined in the FONSI that none of the effects of the approved HGMPs

were “highly controversial.” NMFS 15504; 40 C.F.R. §1508.27(b)(4). “[T]he term ‘controversial’ is

modified by the term ‘highly,’…not every controversy is worth consideration” in a full EIS. Presidio

Golf Club, 155 F.3d at 1162. Moreover, environmental effects are controversial only to the extent a

“substantial dispute exists as to the size, nature, or effect of the major Federal action rather than to the

existence of opposition to a use.” Found. for N. Am. Wild Sheep v. U.S. Dep’t of Agric., 681 F.2d

1172, 1182 (9th Cir. 1982). The Ninth Circuit has held that “[a] substantial dispute exists when

evidence…casts serious doubt upon the reasonableness of the agency’s conclusions.” Humane Soc.

v. Locke, 626 F.3d 1040, 1057 (9th Cir. 2010) (emphasis in original) (quoting Nat’l Parks &

Conserv. Ass’n v. Babbitt, 241 F.3d 722, 736 (9th Cir. 2001)).

In this case, Plaintiff wild fish organizations plainly oppose a use—the use of hatcheries to

help preserve and restore native stock salmonids that remain in the Elwha River while, and for a

period after, the dams are being removed. Found. for N. Am. Wild Sheep at 681 F.2d at 1182.15 As

the FONSI explains, “the controversy surrounding the Elwha hatchery programs is related to whether

or not hatchery fish should be used as part of the Elwha River Ecosystem Restoration.”AR 15504.

But the decision to use hatcheries to preserve and support restoration of salmonid populations

decimated by sedimentation following dam removal was made in 1996, and examined in the 1996 15 See also Surfrider Found. v. Dalton, 989 F. Supp. 1309, 1323 (S.D. Cal. 1998) (“Courts have avoided equating controversy with opposition. Otherwise, opposition, and not the reasoned analysis set forth in an environmental assessment, would determine whether an environmental impact statement would have to be prepared. The outcome would be governed by a ‘heckler's veto.’”) (quoting North Carolina v. Fed. Aviation Admin., 957 F.2d 1125, 1133–1134 (4th Cir.1992)) (quotation marks omitted).





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EIS on Elwha River Ecosystem Restoration Implementation. NMFS15504; NPS 1823; 1827 (1996

ROD); 2066 (1996 EIS describing lethal effects of sedimentation); 2278. That decision record

resolved to “develop broodstocks, outplant juveniles, and evaluate adult return during and after dam

removal,” and the EIS appended an early version of the Fish Restoration Plan contemplating the

release of hundreds of thousands of hatchery fish—for some stocks, millions. NPS 1827. Plaintiffs

now argue hatchery fish should not be used at all to guard against extirpation or support restoration

goals. ECF 153 at 34-35; NMFS 11108; 11112 (hatchery programs should be eliminated). This

opposition does not reflect a “substantial dispute,” but merely one interest group’s opposition to the

use of hatchery supplementation to preserve and restore native Elwha fish populations.

Moreover, Plaintiffs fail to support their assertion that there is a “public controversy” over the

use of hatchery fish for Elwha restoration. ECF 153 at 35. NMFS received only four comment letters

in response to the proposed action analyzed in the draft EA. NMFS 15889; see, e.g., NMFS 11209;

11212. Only one of these letters—submitted by Plaintiffs—opposed the use of hatchery fish. NMFS

10847. The other letters strongly supported the proposed action. NMFS 11209; 11212. Thus, NMFS

reasonably concluded “the methodology and best available information used to [analyze] effects are

not ‘highly controversial’ to the public.” NMFS 15504.16 Plaintiffs’ assertion that there is a

controversy from “substantial media attention” in the form of one extra-record newspaper article is

both improper for this Court’s review and meritless.17 ECF 153 at 35; see ECF 162 at 11.

16 Whether or not Plaintiff organizations represent “thousands of members,” only one comment letter opposing the proposed action was received, sent by Plaintiffs’ litigation counsel. NMFS 15504. No individual members submitted comments on the draft EA. See Native Vill. of Chickaloon v. NMFS, __ F. Supp. 2d __, 2013 WL 1219341, *28 n.321 (D. Alaska May 28, 2013) (Fourteen comment letters “falls far short” of rendering the action highly controversial); Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 986 (9th Cir. 1985) (No controversy where “virtual agreement exists among local, state, and federal government officials…only appellant and its two experts are critical.”). 17 The single, extra-record article Plaintiffs cite quotes only Plaintiffs’ members and declarants as opposing the use of hatchery fish. Not only does the article fail to show any controversy beyond Plaintiffs’ opposition, it cannot establish a “substantial dispute” such that “evidence casts serious doubt on the agency’s conclusions.” Humane Soc. v. Locke, 626 F.3d 1040, 1057 (9th Cir. 2010); see N. Idaho Comm. Action Network v. U.S. Dept. of Transp., 2008 WL 838718, *7 (D. Idaho March 27, 2008) (advertisements in local newspaper insufficient to show controversy).





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Finally, citing only their own comment letter and attachments, Plaintiffs argue that

unidentified leading scientists dispute the technical conclusions regarding the size, nature, and effects

of the proposed action. ECF 153 at 34. Even if this were accurate, “[m]ere disagreements about

scientific matters within the purview of the agency do not make a project highly controversial,” and

an agency must receive “considerable deference on issues requiring high levels of technical

expertise.” Soda Mtn. Wilderness Council, 2013 WL 1975852, *18; see Marsh v. Or. Natural Res.

Council, 490 U.S. 360, 378, 109 S.Ct. 1851 (1989).

f. The action will not significantly adversely affect listed species.

An agency must consider the “degree to which the action may adversely affect an endangered

or threatened species or its [critical] habitat….” 40 C.F.R. § 1508.27(b)(9). Although Plaintiffs

appear to argue that any adverse impact to a listed species automatically requires an EIS, that is

incorrect. “[T]he regulation’s ‘intensity’ factor focuses on the ‘degree to which an action may

adversely affect’ a threatened species or critical habitat.” Envt’l Prot. Info. Serv. v. Forest Serv., 451

F.3d 1005, 1012 (9th Cir.2006) (emphasis in original); see ECF 153 at 35. An EIS is not required

anytime an agency discloses adverse impacts on listed species or their habitat, but only if the adverse

effects will be significant. Native Ecosystems Council, 428 F.3d at 1240; Nw. Env. Def. Ctr v. U.S.

Army Corps of Eng’rs, 2013 WL 1294647 (D.Or. 2013) (upholding conclusion of no significant

impact where proposed action “will likely adversely affect” ESA-listed coho salmon).

The record establishes that NMFS applied 40 C.F.R. § 1508.27(b)(9) correctly. NMFS

considered the degree to which approval of the HGMPs might adversely affect endangered or

threatened species, or their critical habitat, and reasonably concluded any adverse effects would be

“minimal.” NMFS 15502-03 (addressing effects to ESA-listed salmon, steelhead, bull trout, and

killer whales). Given that a fundamental purpose of the proposed HGMPs was to “[p]reserve and





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assist in the recolonization of all native salmon and steelhead populations” in the Elwha River, and

two such species are ESA-listed, the EA’s focus on endangered and threatened species received

special emphasis. NMFS 15389. NMFS found that the hatchery programs will benefit listed

steelhead and salmon by “add[ing] marine-derived nutrients,” “increas[ing] total and natural-origin

abundance and spatial structure,” and “preserv[ing] the [steelhead and salmon] populations when

turbidity levels are high and detrimental to natural-origin fish survival.” NMFS 15446-47; 15450-51.

Regarding habitat, the EA notes, “newly accessible habitat would be of higher quality than existing

habitat, so productivity would be expected to improve relative to baseline conditions.” Id.

In light of the many benefits the hatchery programs will confer on ESA-listed species, the

FONSI’s conclusion that the HGMPs will result in minimal adverse effects is also reasonable. NMFS

15502. The FONSI appropriately acknowledges the risk of adverse effects such as genetic effects,

competition and predation, disease transfer, and others, but explains that these risks would be

“minimal,” and cites the BiOp’s concurring opinion that on balance the hatchery programs are

necessary to avoid extirpation, and that they “would not jeopardize the continued existence” of any

listed species. Id. The conclusion that critical habitat would not be adversely affected is likewise

reasonable, and consistent with the BiOp. NMFS 15503; 15898 (BiOp conclusion that action will not

adversely modify critical habitat); 16079 (“Operation of the hatchery programs is not expected to

substantially impact [primary constituent elements of critical habitat]”); 16063.

Plaintiffs nonetheless assert that the approved hatchery programs “will delay, and even

prevent, full recovery of the Elwha River salmonid populations.” This conclusion, however, is

unsupported by anything in the administrative record besides Plaintiffs’ own comments. ECF 153 at

35. An HSRG review of early draft HGMPs stated that “prolonged hatchery influence may lead to

loss of fitness in natural populations, potentially resulting in reduced or delayed restoration,” but both





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the HGMPs and the associated monitoring plans were revised, specifically to respond to this concern

and to incorporate HSRG’s recommendations. NMFS 8436 (emphasis added). Thus, HSRG’s

statement regarding prolonged hatchery influence does not describe the revised HGMPs ultimately

approved. And the record overwhelmingly establishes that the hatchery plans are specifically

designed to ultimately achieve Elwha River restoration with natural-origin salmonids, including

ESA-listed salmon and steelhead. NMFS 8435 (Benefits of the plan include “[a]dding viable natural

populations” and “preserving the existing genetic resources of salmon and steelhead” during adverse

habitat conditions.)

g. The action is not related to other actions with cumulatively significant impacts.

Plaintiffs raise two arguments regarding cumulative impacts. First, Plaintiffs allege that

NMFS improperly concluded that cumulative impacts would not be significant. ECF 153 at 37

(citing 40 C.F.R. § 1508.27(b)(7)). Second, Plaintiffs argue that NMFS “impermissibly broke review

of the Elwha River HGMPs out of the programmatic EIS” on Puget Sound hatcheries generally. Id.

39. Neither of these arguments has merit.

i. NMFS analyzed cumulative impacts and reasonably concluded they would not be significant.

In assessing significance, agencies must consider “[w]hether the action is related to other

actions with individually insignificant but cumulatively significant impacts.” 40 C.F.R. §

1508.27(b)(7).18 NMFS properly analyzed the “additional, incremental, cumulative impacts that may

result from past, present, and reasonably foreseeable future actions” in combination with the decision

to approve the HGMPs. NMFS 15487-90. The EA’s cumulative impacts section explains at the

outset that many past and present actions—including “hydropower, habitat loss, harvest, and

18 A cumulative impact is “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions….” Neighbors of Cuddy Mountain v. Forest Serv., 137 F.3d 1372, 1378 (9th Cir. 1998); 40 C.F.R. ' 1508.7.





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hatchery production”—are part of the baseline conditions described in the “Affected Environment”

section. Thus, direct and indirect effects of the proposed action in combination with past and present

actions, are addressed in the “Environmental Consequences” section. NMFS 15487. The EA

proceeds to address future actions—including hatchery programs in Puget Sound, fishing activities

that may incidentally intercept Elwha River salmon and steelhead, and habitat restoration activities—

as other programs with the potential to create cumulative effects. NMFS 15487. These potential

future actions “would be managed based on the impacts to ESA-listed salmon and steelhead,” and if

cumulative effects limit the number of returning fish or other recovery goals, “adjustments to

fisheries and to the hatchery production levels” would likely be proposed. NMFS 15488. NMFS also

addressed potential funding actions by BIA, FWS, and NPS, concluding that “effects of these

funding actions are entirely encompassed within the effects of the hatchery programs themselves….”

NMFS 15505. In sum, the FONSI concludes that, the cumulative impacts “considered in the

environmental assessment and in an associated biological opinion…are not expected to rise to the

level of significance.” Id.

Plaintiffs argue NMFS failed to analyze the cumulative impacts of other Puget Sound

hatchery programs. But NMFS explained, the “effects of other Puget Sound hatchery programs [are]

appropriately captured in the baseline conditions…since they are ongoing programs and have

resulted in current conditions in the action area.” NMFS 15894; 15505. Plaintiffs acknowledge that

Puget Sound hatchery programs have been operating for many years. ECF 153 at 37. It was,

therefore, appropriate for NMFS to incorporate the impacts of hatcheries as part of baseline

conditions, and examine cumulative effects with the proposed action in the environmental

consequences. See W. Watersheds Project v. BLM, 552 F. Supp. 2d 1113, 1132 (D. Nev. 2008) (“EA

sufficiently analyzes cumulative impacts …as part of the baseline”); In re Mont. Wilderness Ass’n,





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807 F. Supp. 2d 990, 1002 (D. Mont. 2011) (approving cumulative impacts analysis in

“environmental consequences”).

ii. NMFS properly analyzed the Elwha HGMPs separately from a programmatic EIS for hatchery programs.

Plaintiffs’ second argument—that NMFS “impermissibly broke review of the Elwha River

HGMPs out of the programmatic EIS”—is also meritless. ECF 153 at 39.19 CEQ regulations instruct

agencies to prepare a single EIS for “connected” or “cumulative” actions. Earth Island Inst. v. U.S.

Forest Serv., 351 F.3d 1291, 1306 (9th Cir. 2003). Cumulative actions are those “which when

viewed with other proposed actions have cumulatively significant impacts and should therefore be

discussed in the same impact statement.” 40 C.F.R. ' 1508.25(a)(2). As the Supreme Court has

explained,

Determination of the region, if any, with respect to which a comprehensive statement is necessary requires the weighing of a number of relevant factors, including the extent of the interrelationship among proposed actions and practical considerations of feasibility. Resolving these issues requires a high level of technical expertise and is properly left to the informed discretion of the responsible federal agencies.”

Kleppe v. Sierra Club, 427 U.S. 390, 412 (1976) (Agency not obligated to prepare programmatic EIS

on region-wide coal projects.). Nothing in NEPA forced NMFS to examine the Elwha River HGMPs

in a single, programmatic EIS with all other Puget Sound hatchery programs. The plan to use

hatcheries in Elwha River restoration predated the two programmatic Resource Management Plans

(RMPs) for other hatcheries in Puget Sound, and is proceeding on a separate time schedule for good

reason.20 See Earth Island Inst., 351 F.3d at 1305. As NMFS explained:

19 Nowhere in their comments on the draft EA did Plaintiffs allege that the Elwha HGMPs had to be analyzed in a single, programmatic EIS with the regional Resource Management Plans, or the other Puget Sound HGMPs. The argument is therefore waived. Conserv. Congress v. U.S. Forest Serv., 371 Fed. Appx. 723, 728 (9th Cir. 2010). 20 The regional RMPs are the State and Tribes’ overarching “proposed framework through which they would jointly manage hatchery programs in Puget Sound….” 76 Fed. Reg. 45515; see NMFS 7179. The RMPs were originally submitted in 2004, and remain under consideration in NMFS’ ongoing process of completing a programmatic EIS to





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WDFW and LEKT re-submittal of the final plans, separately from the programmatic Puget Sound region-wide ESA hatchery plan effects review and determination process described above, was timely, given initiation of dam removal in September, 2011, and the elevated importance of describing hatchery actions to preserve and restore salmon and steelhead at an enhanced level of detail to ensure that the programs are operated in a manner consistent with the goals and objectives of the EFRP.

AR 15911. Because dam removal and its dangerous sedimentation effects are already underway, it

was reasonable for NMFS to prepare a separate EA for the Elwha River HGMPs. Nothing in the

record suggests that NMFS intended to segment review so as to minimize the cumulative impact of

the Elwha HGMPs with other draft HGMPs in Puget Sound. See Native Ecosystems Council v.

Dombeck, 304 F.3d 886, 894 (9th Cir. 2002).

h. The action will not cause the loss of significant scientific resources. 21

The CEQ regulations instruct agencies to consider “[t]he degree to which the action…may

cause loss or destruction of significant scientific, cultural, or historical resources.” 40 C.F.R. §

1508.27(b)(8). NMFS properly found concluded that the action area “includes none of the

aforementioned structures or resources.” NMFS 15506. Plaintiffs appear to argue that the Restoration

Project itself is a “scientific resource” within the meaning the CEQ regulations, because the

restoration project provides an “opportunity to learn how salmonids naturally recolonize a watershed

in response to large scale dam removal.” ECF 153 at 40. Plaintiffs repeatedly refer to dam removal,

and the magnitude of the Elwha project on the whole, which has already been the subject of multiple

EISs. Moreover, a lost “opportunity” to study the environment in its natural state is not a “scientific

resource” for purposes of NEPA. If it were, this significance factor would be triggered for nearly

review all of the hatchery programs in Puget Sound. See 69 Fed. Reg. 26364. Thus, it is unclear if and when the nearly ten-year-old RMPs will be approved. Further, the 117 other Puget Sound HGMPs to which Plaintiffs refer are not final HGMPs submitted for NMFS’ decision; they are merely appended to the RMPs submitted by the State and Puget Sound Treaty tribes. See 76 Fed. Reg. 45516. 21 Like Plaintiffs’ new allegations regarding uncertainty, Plaintiffs failed to raise this issue in their comments on the draft EA, and it is therefore waived. Conserv. Congress, 371 Fed. Appx. at 728; NMFS 10847.





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every federal action affecting the environment. Agencies must consider tangible “resources” that are

significant for scientific, cultural, or historical values, not mere opportunities to study the

environment. Lockhart v. Kenops, 927 F.2d 1028, 1035 (8th Cir. 1991) (Professor’s desire to study

canyon for educational and scientific reasons did not risk loss of scientific resources.).

B. The EA and FONSI are not arbitrary and capricious.

1. Federal Defendants timely complied with NEPA, before any major federal actions.

NMFS completed the NEPA process for its decision on the State and Tribal HGMPs at the

appropriate time. Under CEQ regulations, a “proposal” for major federal action triggering NEPA

responsibilities “exists at that stage in the development of an action when an agency subject to the

Act has a goal and is actively preparing to make a decision on one or more means of accomplishing

that goal and the effects can be meaningfully evaluated.” 40 C.F.R. § 1508.23. “For applications to

the agency appropriate environmental assessments…shall be commenced no later than immediately

after the application is received.” 40 C.F.R. § 1502.5. NMFS properly waited to begin the NEPA

process until it had a ripe proposal for federal action to analyze—whether or not to approve the final

HGMPs submitted by the State and Tribe.22 NMFS’ completion of an EA promptly after the final

HGMPs were submitted, but before making a decision whether to approve the HGMPs, was proper.

Plaintiffs’ argument that DOI violated NEPA because an EA was not prepared before DOI

began providing funding toward past hatchery programs is without merit.23 ECF 153 at 42. Past

22 Plaintiffs reiterate the argument that the 2008 Fish Restoration Plan was a final agency action or triggered NEPA duties, but as this Court previously held, Plaintiffs “failed to show that the Fish Restoration Plan is a final agency action,” or that it “imposes any rights, obligations or legal consequences upon any party.” ECF 50 at 13-14 (Order of June 27, 2012). 23 It is unclear what relief Plaintiffs seek to achieve in arguing the EA should have been prepared earlier. Past funding decisions have already occurred, so “[t]here is no ongoing ‘major Federal action’” with respect to those decisions. SUWA, 542 U.S. at 73, 124 S.Ct. 2373. Additionally, NMFS, in cooperation with NPS and BIA, has prepared an EA to analyze the environmental impacts of the hatchery operations. Plaintiffs’ argument that the EA should have been prepared earlier is either moot, or Plaintiffs lack standing to raise this argument.





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annual funding from agencies to the State or Tribal hatcheries did not rise to the level of “major

federal action” that would trigger NEPA responsibilities. See Sierra Club v. Penfold, 857 F.2d 1307,

1313 (9th Cir. 1988) (“NEPA compliance is required only where there is ‘major Federal action’”).

“Marginal federal action will not render otherwise local action federal.” Ka Makani ‘O Kohala

Ohana Inc. v. Water Supply, 295 F.3d 955, 960 (9th Cir. 2002) (internal quotations omitted). If a

federal agency contributing funds to a state or tribal project does not retain control over the project,

or if the funds are only a small portion of total project cost, the project is not a “major federal action”

and does not require NEPA analysis. See Rattlesnake Coal. v. E.P.A., 509 F.3d 1095, 1101 (9th Cir.

2007).

Plaintiffs have not demonstrated that the agencies “retain[ed] power, authority, or control

over” use of past funding to State or Tribal hatcheries, or management of past hatchery operations.

Rattlesnake Coal., 509 F.3d at 1101. For example, BIA annual funding agreements entered into

pursuant to the Tribal Self-Governance Act provide that the Tribe “agrees to assume responsibility

for the implementation of the programs.”24 Knutsen Decl., Ex. 7 at 2. Therefore, BIA “lacked the

degree of decision-making power, authority, or control needed to render it a major federal action.”25

Ka Makani ‘O Kohala Ohana Inc. v. Water Supply, 295 F.3d 955, 960 (9th Cir. 2002) (quoting

Almond Hill Sch. v. U.S.D.A., 768 F.2d 1030, 1039 (9th Cir. 1985)). Moreover, Plaintiffs have failed

to show that a sufficient portion of total funding of State and Tribal hatcheries is Federal. See

Rattlesnake Coal., 509 F.3d at 1101. Approving the HGMPs is the Federal action requiring NEPA

compliance; NMFS prepared an EA and FONSI prior to the decision.

24 As Defendants have previously explained, past Tribal/BIA funding contracts are not part of the administrative record and should not be considered in this Court’s review. Defs.’ Resp. to Pls.’ Mot. for Judic. Not. 9 (ECF No. 162). However, because Plaintiffs’ argument relies on the contracts, Defendants respond herein. ECF 153 at 42. 25 Additionally, the amount of funding disbursed to the Tribe for hatchery operations can only be reduced in subsequent years in very limited circumstances. See 25 U.S.C. § 450j-1(b)(2). It is therefore questionable whether DOI retains discretion over funding the hatchery programs at all.





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Finally, NMFS’ approval of the State and Tribal hatchery plans did not require NPS to

prepare a supplemental EIS. NPS appropriately cooperated in NMFS’ preparation of an EA, adopted

that EA, and concluded on the basis of the EA that impacts of the approved hatchery programs would

not be significant. See Ex. 1 (March 2013 NPS Finding of No Significant Impact).26 Thus, NPS

effectively prepared a supplemental EA and FONSI, determining no supplemental EIS would be

required. See San Luis Obispo Mothers for Peace v. Nuclear Reg. Comm’n, 635 F.3d 1109, 1112

(9th Cir. 2011) (upholding supplemental EA). Agencies are required to supplement an existing EIS

only where there are “substantial changes to the proposed action” or “significant new circumstances

or information” relevant to environmental concerns. 40 C.F.R. 1502.9(c)(1). To trigger a

supplemental EIS, the changes or new information must present “a seriously different picture of the

likely environmental harms stemming from the proposed action.” Airport Communities Coal. v.

Graves, 280 F. Supp. 2d 1207, 1218 (W.D. Wash. 2003) (quoting Wisc. v. Weinberger, 745 F.2d

412, 420 (7th Cir. 1984)). Moreover, an agency’s decision not prepare a supplemental EIS will not be

overturned absent a “clear error of judgment.” Marsh v. Oregon Natural Res. Council, 490 U.S. 360,

377-78, 385 (1989).

As previously explained, NPS has already prepared two EISs and a supplemental EIS on

Elwha River Restoration. All of these NEPA documents discussed the use of hatcheries to preserve

and restore viable populations of the very same species which are the subject of the HGMPs. See

NPS 2291; 2203 (Describing “releases of fish from hatcheries for most stocks to speed restoration

with little or no compromise of genetic conservation goals.”). NPS reasonably concluded that the

26 Federal Defendants request that the Court take judicial notice of NPS’s March 2013 Finding of No Significant Impact, attached as Exhibit 1, as a public document. Available at http://parkplanning.nps.gov/document.cfm?parkID=329&projectID=46972&documentID=52848; see also Fed. R. Evid. 201(b)(2); Ctr. For Envtl. Law and Policy v. U.S. Bureau of Recl., 655 F.3d 1000, 1010-11 (2011) (taking judicial notice of NEPA document). Judicial notice is appropriate because Plaintiffs’ claim for “failure to prepare a supplemental [EIS]” challenges a failure to act, and thus “there can be no final agency action that closes the administrative record….” ECF 153 at 2; San Francisco BayKeeper v. Whitman, 297 F.3d 877, 886 (9th Cir. 2002). If necessary, Defendants will formally supplement the record with this document.





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Fish Restoration Plan and the research it referenced did not constitute new information warranting an

EIS, but rather “confirmed the scientific community’s historical, fundamental understanding of how

hatchery fish may affect wild stocks.” Ex. 1 at 9. Plaintiffs argue the Chinook and steelhead HGMPs

involve releasing slightly more mature smolts than described in the 1996 EIS, but this does not create

a “seriously different picture” of the hatchery supplementation planned as part of river restoration.

Airport Communities Coal., 280 F. Supp. 2d at 1218. By adopting NMFS’ EA and issuing its own

FONSI, NPS reasonably determined not to prepare a supplemental EIS.

2. NMFS explained why the alternative of reduced hatchery production was not considered in detail.

An EA must contain a “brief discussion of reasonable alternatives,” and an agency’s

“obligation to consider alternatives under an EA is a lesser one than under an EIS.” Ctr. for Biol. Div.

v. Salazar, 695 F.3d 893, 915 (9th Cir. 2012); see 40 C.F.R. § 1508.9(b). The reasonableness of an

alternative is determined by the “purpose and need” of the project. League of Wilderness Defs.-Blue

Mtns. Biodiv. Project v. U.S. Forest Serv., 689 F.3d 1060, 1069 (9th Cir. 2012). Alternatives which

do not achieve the purpose and need, which are not “significantly distinguishable from alternatives

already considered, or which have substantially similar consequences” need not be considered.

Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1246-47 (9th Cir. 2005);

Headwaters, Inc. v. BLM, 914 F.2d 1174, 1180 (9th Cir. 1990).

NMFS considered an alternative involving “Hatchery Programs with Decreased Production

Levels,” but declined to analyze it in detail because the alternative failed to meet the purpose and

need of the project, and it was not meaningfully different from Alternative 4.27 NMFS 15403. First,

the EA explains that hatchery programs with decreased production levels would not meet the purpose

27 The EA’s purpose and need states several goals, including ensuring “substantial progress towards fish restoration in the Elwha River within a 20- to 30-year time frame” and fulfilling tribal “treaty-reserved fishing rights.” NMFS 015389. Plaintiffs do not argue the purpose and need is improperly narrow. ECF 153 at 45 (calling it “vague”).





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and need “because substantial progress toward fish restoration in the Elwha River would not be

expected to occur in a 20- to 30-year time frame.” Id. Second, NMFS concluded that substantially

decreased hatchery production would lead to the same results as terminating the hatcheries, and

would not be meaningfully different from the alternative of terminating hatchery programs.

NMFS015403.

[H]atchery programs at the proposed production levels are only able to produce minimal adult returns. Consequently, there is a risk that native salmon and steelhead populations would not endure with substantial further reductions in production levels.

NMFS015403. With this analysis, NMFS met its duty to “briefly discuss” the reasons for eliminating

a reduced hatchery production alternative, and NMFS’ decision not to analyze this alternative in

detail was reasonable. NMFS015403; League of Wilderness Defs., 639 F.3d at 1071. Moreover, this

technical determination falls within NMFS’ area of expertise and therefore deserves deference. Az.

Cattle Growers’ Ass’n v. U.S. Fish & Wildlife Serv., 273 F.3d 1229, 1236 (9th Cir. 2001)

(“Deference is particularly important when the agency is making predictions, within its area of

special expertise....”) (quotations omitted).

3. NMFS properly defined the No-Action Alternative as status quo.

The CEQ regulations require agencies to include “the alternative of no action.” 40 C.F.R. §

1502.14(d). The no-action alternative “may be thought of in terms of continuing with the present

course of action until that action is changed.” Ass’n of Pub. Agency Customers, Inc. v. Bonneville

Power Admin., 126 F.3d 1158, 1188 (9th Cir. 1997); Forty Most Asked Questions Concerning

CEQ’s National Environmental Policy Act Regulations, 46 Fed. Reg. 18027 (Mar. 23, 1981). Thus, a

no-action alternative provides the means to “compare the environmental consequences of the status

quo to the consequences of the proposed action.” Pacific Coast Fed. of Fishermen’s Ass’ns v. U.S.

Dep’t of Interior, No. 1:12-CV-01303-LJO-MJS, 2013 WL923407, at *6 (E.D. Cal. 2013).





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The no-action alternative adopted by NMFS in the EA was proper—“NMFS would not make

determinations under the 4(d) Rule.” NMFS 15399. In other words, NMFS would truly take “no

action” on the HGMPs. Under this alternative, NMFS recognized that the hatchery programs would

not have ESA coverage, but reasonably assumed that the State and Tribe would “continue to operate

the Elwha River hatchery programs as under baseline conditions,” as they had historically been doing

for decades. See NMFS 15405. Courts have repeatedly affirmed no-action alternatives that “reflect

historical uses of the action area.” Pacific Coast, 2013 WL 923407, at *11; see also, e.g., Natural

Res. Def. Council, Inc. v. Hodel, 624 F. Supp. 1045, 1054 (D. Nev. 1985), aff’d, 819 F.2d 927 (9th

Cir. 1987) (“No-action…is certainly not, in this context, a complete reversal or abolition of a

historical pattern of use….”); Nw. Envtl. Defense Ctr. v. U.S. Army Corps of Eng’rs, 817 F. Supp. 2d

1290, 1312-13 (D. Or. 2011). Thus, NMFS made a reasonable prediction that the State and Tribe

would continue to operate their hatcheries even if NMFS took “no action” on the submitted HGMPs.

However, because NMFS’ chosen no-action alternative was not the only possible outcome

of taking no action on the HGMPs, NMFS analyzed an additional alternative—Alternative 4—to

consider the environmental impacts of terminating the hatcheries. NMFS 15399. Under Alternative

4, NMFS would “make a determination that the submitted HGMPs…do not meet the requirements of

the 4(d) Rule, and the Elwha River hatchery programs would be terminated immediately.” NMFS

15401. Alternative 4 fully examines the environmental impacts of discontinuing hatchery operations.

See, e.g., NMFS 15449 (impacts to Chinook salmon); 15453 (impacts to steelhead). Although

Plaintiffs argue NMFS “masked the true effects of the action,” NMFS’ consideration of Alternative 4

in comparison to the no-action alternative provides the analysis Plaintiffs allege is missing.

Plaintiffs appear to argue that the no-action alternative must be defined as a legal baseline,

or a baseline with the lowest environmental impacts, rather than reflecting the status quo. ECF 153 at





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46-48. NEPA does not require such a no-action alternative detached from environmental reality. Ctr.

for Biol. Div. v. U.S. BLM, 746 F. Supp. 2d 1055, 1090 (N.D. Cal. 2009); see Custer County Action

Ass’n v. Garvey, 256 F.3d 1024, 1040 (10th Cir. 2001). Moreover, Plaintiffs’ prediction that

hatcheries would close in the absence a decision on the HGMPs is pure speculation that runs counter

to historical evidence. See ECF 153 at 47. Plaintiffs are also wrong in suggesting NMFS was

required to define the “no-action” alternative in the Elwha EA the same as “no-action” alternatives in

prior EAs for other hatcheries.28 ECF 153 at 48. The Elwha EA provides a broader alternatives

analysis, examining four alternatives rather than two. Knutsen Decl., ECF 155 at Ex. 12 at 7; Ex. 13

at 9. Plaintiffs have not demonstrated that NMFS’ choice of no-action alternative was unreasonable.

C. Federal Defendants Fully Complied With the ESA and APA

1. NMFS Did Not Improperly Segment its Consultation.

In their first motion for summary judgment, Plaintiffs challenged the July BiOp and ITS

arguing that NMFS’ analysis did not comprehensively analyze the effects of hatchery operations.

The Court rejected this argument and denied Plaintiffs’ motion. ECF 112 at 7 (“With regard to the

NMFS 2012 BiOp, Plaintiffs have failed to meet their substantive burden on this issue.”). In their

second motion for summary judgment, Plaintiffs re-package the same argument – this time

acknowledging that NMFS analyzed the “harmful effects associated with hatcheries”, but arguing

that the analysis was not detailed enough. ECF 153 at 48-49; id at 49 n.12. Plaintiffs never explain

why the Court should reconsider its previous decision, nor have they met the high standard for

reconsideration. Plaintiffs had their opportunity to challenge the July BiOp and ITS, and the Court

should disregard Plaintiffs’ attempt to relitigate matters already decided. McGary v. Richards, No.

28 Western Watersheds Project v. Kraayenbrink, on which Plaintiffs rely for this assertion, arose in the distinguishable context of a rulemaking, not an agency identification of the NEPA no-action alternative, and held that “[a]n agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change….” 632 F.3d at 494 (emphasis added). Here NMFS did not rescind a rule, but completed a site-specific EA, making reasonable predictions about the future in defining its “no action” alternative.





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C09–5156 –BHS, 2009 WL 3169563 *2 (W.D.Wash. 2009) (“Motions for reconsideration are

disfavored. The court will ordinarily deny such motions in the absence of a showing of manifest error

in the prior ruling or a showing of new facts or legal authority which could not have been brought to

its attention earlier with reasonable diligence.”).

To the extent the Court reconsiders its previous decision, Plaintiffs’ argument is factually and

legally inaccurate. Factually, NMFS analyzed the effects of hatcheries in the July BiOp, and

expressly found that while there are adverse effects associated with the future operation and

maintenance, over the long-term these adverse effects would not preclude recovery of the listed

species. For example, NMFS explained in the July BiOp that the “consultation for the Chinook

salmon HGMP will take into account the general risks of hatchery programs. Some of the

information generated for that consultation is relevant to assessing the effects of the temporary

supportive breeding program associated with the proposed action over the duration of the dam

removal and early watershed recovery phases. To the extent that part of those hatchery operations

are also part of this proposed action, we analyze the effects here.” NMFS 7905-06 (emphasis added).

NMFS then specifically analyzed and described these adverse effects in the July BiOp:

These effects are: facility effects, fish removal, genetics, ecological interaction, harvest, and monitoring and evaluation. Facility effects include those that may result from the operation of a hatchery and potential impacts to listed species from facility failures when hatcheries propagate ESA listed salmonids. Fish removal (‘collection’) risks include the potential for injury and mortality of adult fish due to broodstock collection efforts and the potential for demographic effects when natural origin fish are captured and removed from the naturally spawning population. Genetic risks include the potential loss of within-population diversity from genetic drift and inbreeding depression, outbreeding introgression to local populations, and the potential for deliberate or accidental selective breeding for traits leading to domestication to the detriment of genetic diversity and (survival and reproductive) fitness of affected populations. Ecological effects involve interactions between hatchery origin and natural origin fish, such as the fish disease pathogen amplification and transfer, competition for resources, direct and indirect predation, and alteration to the natural nutrient cycle from marine-derived nutrients. The risks associated with harvest come from bycatch of natural origin fish in fisheries targeting surplus hatchery-origin fish. Finally, risk from monitoring and evaluation are





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associated with inconsistent marking efforts masking the true number of natural origin fish, mortality from sampling and marking methods, and the potential inadequacy of monitoring and adaptive management plans to properly access and manage populations.

Id. 7906.29 Based, in part, on this analysis, NMFS concluded: “There are potential negative effects

from continued hatchery supplementation programs beyond the term of the proposed action.

Because those programs are substantially undefined but expected to be eliminated or substantially

reduced as recovery occurs, the precise extent of effects is uncertain. Based on available information

about the likely direction of the programs, the effects of hatchery operations are not likely to

substantially impede recovery.”). NMFS 7917; id. 7910 (citing scientific studies including NMFS’

2011 reference document for consultations on steelhead and salmon for hatchery programs). 30

In addition to the analysis in the July BiOp, NMFS comprehensively evaluated all of the

adverse effects, in extraordinary detail, in the December BiOp. NMFS 15991-16002 (factors NMFS

considered); id. 16002-51 (evaluating the risks and benefits of these hatchery programs); id. 16065

(synthesis of the effects for Puget Sound Chinook); id.16071-78 (synthesis for Puget Sound

steelhead); id. 16080-82 (conclusions). Plaintiffs do not dispute that the December BiOp considered

29 Plaintiffs incorrectly assume that ongoing State and Tribal hatchery operations are interrelated and interdependent to the proposed action and therefore any adverse effects should have been considered in the July BiOP. ECF 153 at 49. NMFS expressly found that these operations were not interrelated and/or interdependent because “the hatchery programs existed prior to the proposed action and the program operators have demonstrated their intent to continue . . . .” NMFS 007884. Nevertheless, as explained above, NMFS considered the adverse effects first in the July BiOp, and then more extensively in the December BiOp. 30 Throughout Plaintiffs’ brief they repeatedly contend that NMFS “admits” that it did not consult on the adverse effects of hatchery operations in the July BiOp. This is not accurate. Plaintiffs support their allegations by referencing deposition testimony, but they misconstrue the testimony, or do not understand that there is a distinction between the proposed action identified by NPS, and the indirect effects from that proposed action. Here, only certain hatchery operations were identified by NPS as components of the proposed action, i.e., broodstock collection and outplanting, but NMFS nevertheless analyzed the indirect effects from these actions. Plaintiffs confuse the distinction between the proposed action and the effects of the action: two distinct regulatory terms under the consultation regulations. 50 C.F.R. § 402.02 (definition of “action” and “effects of the action”). NMFS consults on the proposed action, but in doing so analyzes the direct and indirect effects of broodstock collection and outplanting. And, there can be no dispute that the July BiOp clearly analyzes both the beneficial and adverse effects of these hatchery operations. NMFS 7906. Moreover, Plaintiffs’ proffered evidence is inadmissible. As noted in our objection during the deposition, ECF 155-8 at 117 (Pls.’ Ex. 8), Plaintiffs should not be able to probe the mind of a biologist who did not write the actual decision documents through a 30(b)(6) deposition. Id. The BiOp speaks for itself, and that is why when a court reviews a final agency action, like the July BiOp, review is limited to that document and the administrative record.





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all relevant factors and effects, and nothing in the consultation regulations precludes NMFS from

providing supplemental (and more thorough) analyses in multiple BiOps.

Unlike the consultation in Conner v. Burford, 848 F.2d 1441, 1453 (9th Cir. 1988), NMFS

did not temporally segment the July BiOp and avoid consideration of adverse effects. In Connor,

FWS relied on an “incremental-step consultation” where it did not analyze future adverse effects of

oil and gas leasing, at all, because that effects analysis would take place in an undetermined future

consultation. 848 F.2d at 1452 (“The FWS divided the oil and gas activities into stages and

addressed the effects of only the leasing stage, concluding that there was ‘insufficient information

available to render a comprehensive biological opinion beyond the initial lease phase.’”). Plaintiffs’

strained analogy ignores the nature and content of not just one, but two BiOps. In the July BiOp

NMFS analyzed the proposed action with the best available information even though proposed

hatchery programs to mitigate effects of the dam removal project were relatively undefined at that

time of the consultation, see NMFS 7883-84, 7906, and supplemented that analysis with a parallel

consultation when more information and detail became available through the HGMPs. NMFS

15991-16002. Now that both BiOps are complete, there can be no doubt that NMFS

comprehensively analyzed all of the adverse and beneficial effects of hatchery operations. This is a

far cry from deficiencies identified in Connor.

2. NMFS Analyzed Broodstock Collection in the BiOps and ITSs.

Plaintiffs also confuse, or misconstrue, NMFS’ explanation regarding how broodstock

collection was incorporated into the July and December BiOps. Under the consultation regulations,

Federal actions that have undergone consultation must be placed in the environmental baseline. 50

C.F.R. § 402.02 (“The environmental baseline includes . . . the anticipated impacts of all proposed

Federal projects in the action area that have already undergone formal . . . section 7 consultation . .





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.”). Because initial broodstock collection was previously consulted on in the July BiOp, NMFS

included those anticipated impacts in the December BiOp environmental baseline. But this does not

mean NMFS failed to analyze broodstock collection in the December BiOp. NMFS 16006-08

(discussing various risks with collection); 50 C.F.R. § 402.02 (definition of “effects of the action”

which are “added to the environmental baseline”). The adverse effects from broodstock collection

were identified, evaluated, and re-incorporated into the December analysis. Id. 016067

(incorporating broodstock collection into synthesis section and finding that these “actions, in total,

are designed to help manage and protect listed Chinook and will not pose a substantial risk to the

natural . . . population.”). And with the benefit of more detail in the HGMPs, NMFS could more

accurately gauge the effect of take, which resulted in changing the amount of take from 85 in the July

ITS to 1700 adult Chinook in the December ITS. Id. 016085; id. 016067 (evaluating this change in

take). Put simply, broodstock collection was considered in both BiOps. This is a faithful application

of the regulations and falls well short of a “failure” to analyze.

Plaintiffs’ additional argument that NMFS failed to adequately define take and require

monitoring also lacks merit. ECF 153 at 51. Here again, Plaintiffs ignore the language of the ITSs

and the attendant monitoring requirements for broodstock collection activities. In the July ITS,

NMFS identified “monitoring and collection” as a form of likely take and provided a numerical

estimate of this take in accordance with its regulations. Id. 7919 (specifying 162 juveniles and 85

adult Chinook and steelhead). It also mandated that the “NPS shall monitor and biennially (every 2

years) report levels of take and survival for [Chinook and steelhead] during dam removal and for 10

years following dam removal . . . .” Id. 13197. Terms and conditions also provide that: “NPS shall

monitor and report the levels of . . . take from monitoring for PS Chinook and Steelhead . . .” Id.

13198. The December ITS similarly identifies facility operations, genetic effects, ecological effects,





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harvest, broodstock collection, and monitoring and evaluation as possible forms of take, and for each

form of take it provided either a numerical estimate or an ecological surrogate that was causally

related to the general form of take. NMFS 16083-86. NMFS also provided an extensive list of terms

of conditions that minimize take and require immediate reporting. NMFS 16091-93 (terms 6b-l; 7a-

d; 8a).

Ignoring these provisions, Plaintiffs argue that the ITSs are insufficient because NMFS did

not provide a numerical estimate or surrogate for every conceivable form of stressor associated with

the Restoration Project (like delay before collection).31 No such requirement exists. See 50 C.F.R. §

402.14(i). Almost every court that has encountered this argument has rejected Plaintiffs’ novel

interpretation. Nw. Envtl. Def. Ctr. v. U.S. Army Corps of Eng’rs, 817 F.Supp.2d 1290, 1305 (D.Or.

2011) (“nothing in the ESA, its implementing regulations, or the case law requires NMFS to develop

a surrogate that must address all of the stressors that may cause take.”) (emphasis in original); Nw.

Envtl. Def. Ctr v. NMFS, 647 F.Supp.2d 1221, 1240 (D. Or. 2009) (because the surrogate was

roughly responsive to the ecological conditions that caused the primary forms of take, under the

applicable deferential standard of review, NMFS had adequately “addressed the casual

relationship….”); NRDC v. Gutierrez, 2008 WL 360852 at *27-30 (N.D. Cal. 2008) (deferring to

NMFS’ surrogate in the absence of data and when plaintiffs had not produced “any practicable

alternative.”).32 Moreover, the Ninth Circuit has been absolutely clear that courts may not “impose

31 Plaintiffs seem to argue that the facilities used for broodstock collection, as opposed to the act of collection, cause additional forms of take warranting another ecological surrogate. NMFS does not take such an artificial view. The terms “collection” and “fish handling” incorporate all of the activities associated with such actions. If fish are collected for broodstock, then any delay experienced from a structure (like a weir) which facilitates handling is included with the actual collection – divorcing or parsing the two does not make any sense. Moreover, the only support Plaintiffs provide for their theory is NMFS’ own exhaustive analysis, which makes clear that the term “collection” subsumes other incidental effects associated with actual collection. ECF 153 at 51 (citing NMFS 16006-07). 32 Plaintiffs also argue that the December ITS is deficient because it does not address “genetic and ecological interactions during the preservation phase.” ECF 153 at 55. This is not accurate. NMFS clearly provides that the “surrogate take indicator . . . is a failure to attain a productivity rate of 0.8 recruits per spawner . . . for four





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‘procedural requirements [not] explicitly enumerated in the pertinent statutes’” and here no such

stressor requirement exists in the statute or regulations. See Lands Council v. McNair, 537 F.3d at

993-94; see also League of Wilderness Defenders v. Forest Serv., 549 F.3d 1211 (9th Cir. 2008).

In sum, NMFS fully considered broodstock collection in the July BiOp and updated its

analysis in the December BiOp when more detailed information became available. This information

was then taken into account in each of the ITSs, which provided a limit on “take” and included

monitoring requirements to ensure there was a clear reinitiation trigger. This is entirely consistent

with the statute, regulations, and case law.

3. NMFS Appropriately Relied on Monitoring.

Plaintiffs contend that NMFS inappropriately relied on monitoring as “undefined mitigation

measures.” ECF 153 at 52-53. Plaintiffs misstate the legal standard. The Ninth Circuit has long

recognized that NMFS may rely on the likely effects from mitigation in its BiOps, even though

NMFS cannot guarantee the future, expected results. Southwest Ctr. v. BOR, 143 F.3d 515, 523 (9th

Cir. 1998) (upholding an RPA that “could be implemented,” where FWS “rationally” concluded that

the RPA would comply with the ESA); Selkirk Conversation Alliance v. Forsgren, 336 F.3d 944,

949-50 (9th Cir. 2003) (upholding reliance on mitigation measures that FWS “believed” and

“assum[ed]” would sufficiently mitigate the adverse effects associated with the project); see also In

re Operation of Missouri River Sys. Lit., 421 F.3d 618, 635 (8th Cir. 2005) (rejecting claim that lack

of evidence that proposed mitigation measures will work violates § 7 and citing with approval

continued monitoring and adaptive management of mitigation measures). More recently, the Ninth

Circuit clarified that the relevant inquiry is not whether the actions will occur, but rather whether the

consecutive years.” NMFS 016084. There is no limitation to a specific phase for this surrogate. NMFS discusses how there is a productivity goal of 1.0 during the re-colonization phase for recovery purposes, but the surrogate of 0.8 is not limited to just the re-colonization phase and clearly extends to both phases. Id. Plaintiffs appear to confuse the recovery goal of 1.0 with the 0.8 surrogate.





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mitigation is included as part of the proposed action, or as terms and conditions in the ITS, so as to

insure enforceability under the ESA. Ctr. for Biological Diversity, 698 F.3d at 1117 (“We now hold

what was implicit in Marsh and Selkirk and is dictated by the statutory scheme: a conservation

agreement entered into by the action agency to mitigate the impact of a contemplated action on listed

species must be enforceable under the ESA to factor into the . . . biological opinion . . . .”). Thus,

NMFS may reasonably rely on mitigation in its analysis if it is incorporated into the proposed action

or as a term and condition in the ITS. Id.

The requirement to prepare a monitoring and adaptive management plan was explicitly

incorporated into the BiOp and amended ITS. NMFS 13197 (“The NPS shall undertake or fund

effective efforts to monitor salmonid abundance, distribution, productivity, stock composition, and

general habitat and ecosystem conditions to allow for adaptive management and to assess the impacts

associated with dam removal to ESA listed species. It is estimated that over a ten year period

beginning in 2013, such monitoring efforts will cost approximately $6.7 million”). If the NPS did

not complete this monitoring plan by March 1, 2013, see id. 013200, it would have been required to

reinitiate consultation. Center for Biological Diversity, 698 F.3d at 1115 (“the ESA's sequential,

interlocking procedural provisions ensure recourse if the parties do not honor or enforce the

agreement . . .”).

Moreover, as a factual matter, while the July BiOp was being drafted there had already been

substantial discussion on the parameters of NPS’s monitoring plan. Indeed, the Fish Restoration Plan

dedicates roughly 20 pages to future monitoring and adaptive management. NMFS 0726-78. In

turn, many aspects of the plan were reviewed by the HSRG, which provided detailed comments.

NMFS 1228-1343. Then, in the December BiOp, NMFS provided a detailed explanation of the

monitoring and adaptive management requirements. NMFS 15940-44. Thus, the beneficial





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monitoring was far from “undefined.” And finally, the NPS completed its monitoring plan on

February 28, 2013, and NMFS approved it on March 7, 2013. Winter Decl. ¶ 56, Ex. 4,5 at 35-59.

NMFS’ reliance on a monitoring plan, which underwent significant scientific review and was

expressly incorporated into a term and condition in the ITS (and therefore enforceable under the

ESA) is more than reasonable.

4. NMFS Appropriately Defined the Action Area.

Plaintiffs contend that the action area NMFS defined was “impermissibly narrow” and argue

that it should be expanded to wherever salmon travel throughout Puget Sound.33 ECF 153 at 53.

This is not the law.

Under 50 C.F.R. § 402.02, the definition of “action area” provides in pertinent part: “all

areas to be affected directly or indirectly by the Federal action . . . .” (emphasis added). NMFS has

interpreted this regulatory phrase to limit the scope of the action area to just the geographical areas

that are affected by the proposed action, not wherever the species migrate. See Oceana v. Evans, 384

F.Supp.2d 203, 229 (D.D.C. 2005) (the regulatory definition of ‘action area’ ‘focuses on the effects

of an action in a geographic 'area'"). Interpreting this regulatory definition to include all areas where

the listed species could migrate would render this regulatory definition unmanageable. San Francisco

Baykeeper v. U.S. Army Corps of Eng’rs, 219 F.Supp.2d 1001, 1022 (N.D.Cal. 2002) (“Plaintiffs'

proposed methodology would require the agencies to assess the indirect effects . . . on all listed

species in the Bay–Delta ecosystem, or potentially, the West Coast . . . Such an analysis would

necessarily require a degree of speculation not contemplated by § 7 of the ESA . . . .”).

33 Plaintiffs, with this argument, again seek to expand this lawsuit to challenge hatchery operations in the Puget Sound at large, but the Court has already held that Plaintiffs failed to provide the required 60-day notice to challenge all of DOI’s hatcheries in the Puget Sound area. See ECF 149 at 3-4 (“Therefore, Plaintiffs’ argument that the subject of all funding to all of DOI’s hatcheries in the Puget Sound area was in the pre-notice letter and/or the complaint is without merit.”).





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Here, NMFS extended the action area beyond the immediate vicinity of the dam removal

projects and hatchery facilities to include the estuary, but it did not engage in a speculative causal

chain to include Puget Sound. NMFS 15945-46. For a multitude of reasons, see id., NMFS

concluded that it was not “possible to meaningfully measure, detect, or evaluate the specific effects

of Elwha River watershed hatchery juvenile and adult salmonid production on listed species in Puget

Sound and the Pacific Ocean, due to the low magnitude of, and low likelihood for, effects in those

locations” and therefore did not include these areas in the action area. Id. 15946. This is a

reasonable, scientific conclusion, and should be afforded deference. Native Ecosystems Council v.

Dombeck, 304 F.3d 886, 902 (9th Cir.2002) (“[T]he determination of the scope of an [action] area

requires application of scientific methodology and, as such, is within the agency's discretion.”);

Northwest Envtl. Def. Ctr., 647 F.Supp.2d at 1231 (deferring to NMFS’ action area).34

5. The Action Agencies Fulfilled their Obligations Under ESA § 7.

Plaintiffs contend that the DOI Defendants failed to consult on funding the State and Tribal

hatchery programs and therefore violated ESA § 7.35 ECF 153 at 55. As explained previously,

34 Plaintiffs’ additional argument that NMFS did not include Morse Creek, is equally misplaced. The BiOp’s action area includes Morse Creek, as does the EA. In the BiOp, the action area definition provides: “The action area encompasses the Elwha Channel . . . hatchery facility sites [and] the Elwha River watershed where fish produced by the programs would be released as juveniles and return as adults . . . .” NMFS 15945 (emphasis added). This definition includes Morse Creek. As NMFS explained, Morse Creek is an Elwha Channel Hatchery Program where juveniles are released and adults return. Id. 16003. More importantly, NMFS fully analyzed the effects from Morse Creek Elwha Chinook program in the December BiOp. Id. 15916; 16006; 16014. Finally, NMFS expressly included Morse Creek in the EA action area. Id. 15389-15390. 35 Plaintiffs primarily base their argument on extra-record contracts between BIA and the Tribe, and funding from the National Park Foundation. Neither of these entities are parties to this litigation. As this Court previously recognized, BIA was never provided the jurisdictionally required 60-day notice. ECF 112 at 5. But even if the Court considers the proffered extra-record BIA contracts, see ECF 162 (opposing Plaintiffs’ motion to introduce extra-record evidence), Plaintiffs have failed to show that BIA's disbursement of funds to the Tribe for operation of the tribal hatchery, in accordance with a self-governance annual funding agreement under the Indian Self-Determination and Education Assistance Act, 25 U.S.C. §§ 450-450n, and 458aa-458hh, is a discretionary action that is subject to consultation under ESA § 7(a)(2). See National Association of Home Builders v. EPA, 551 U.S. 644 (2007). With respect to the National Park Foundation, Plaintiffs never provided a 60-day notice to this entity. To the extent the Court does not find this claim moot, Plaintiffs have failed to demonstrate that the named agency defendants, NPS and FWS, violated ESA § 7(a)(2) by providing funding that jeopardizes listed species.





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multiple consultations with NMFS and FWS occurred over the years, and the proposed action in the

December BiOp expressly includes: “(2) BIA’s ongoing disbursement of funds for operation and

maintenance of the LEKT hatchery; (3) FWS’s disbursement of funds for the operation and

maintenance of the hatcheries; and (4) the NPS’s participation in funding, authorizations, and other

actions in support of the LEKT and WDFW hatchery programs on the Elwha River.” NMFS 15912.

These consultations are complete, and it is well-established that these Action Agencies may rely on

NMFS’ expertise. Pyramid Lake Paiute Tribe of Indians v. U.S. Dept. of Navy, 898 F.2d 1410, 1415

(9th Cir. 1990) (“another agency's reliance on that opinion will satisfy its obligations under the Act if

a challenging party can point to no ‘new’ information— i.e., information the Service did not take into

account—which challenges the opinion's conclusions.”). Even assuming Plaintiffs have a cognizable

claim under ESA § 7(a)(2), in light of these completed consultations Plaintiffs’ claim is now moot.

Plaintiffs seem to acknowledge their claim is moot, but argue that the Court could provide

declaratory relief because: (1) the Action Agencies might not reinitiate consultation at some

indeterminate point in the future; (2) NMFS allegedly did not consult on the terminated Chambers

Creek program; and (3) rescission of BIA contracts remains an available remedy. ECF 153 at 57-58.

None of these warrant declaratory relief.

First, these arguments are substantially similar, if not identical, to those raised previously in

this case, which the Court rejected. ECF 126 (granting the Tribal Defendants’ motion to dismiss on

mootness grounds). Second, declaratory relief is not available under the ESA.36 Third, it is entirely

speculative -- and Plaintiffs certainly have not provided any indication -- that the agencies will fail to

36 The plain language of the ESA citizen-suit provision does not allow for retrospective injunctive or declaratory relief. See 16 U.S.C. § 1540(g)(1)(A) (“to enjoin any person . . . .who is alleged to be in violation of any provision of this chapter . . . .”) (emphasis added); Ctr. For Biological Diversity v. Marina Point Dev. Co., 566 F.3d 794, 804 (9th Cir. 2009). The language of the ESA citizen suit provision provides only for prospective injunctive relief. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49 (1987) (interpreting a nearly identical provision under the Clean Water Act’s citizen suit provision, 33 U.S.C. § 1365, and finding that retrospective relief was not available).





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reinitiate consultation after the re-colonization phase and termination of the December BiOp. Indeed,

NPS’s record of repeatedly reinitiating consultation suggests the exact opposite. Unsupported

speculation is not sufficient for declaratory relief. See Ctr. for Biological Diversity v. Lohn, 511 F.3d

960, 964 (9th Cir. 2007) (requiring a reasonable expectation that plaintiffs will suffer harm in the

imminent future).

Fourth, Plaintiffs are simply incorrect that NMFS did not analyze the effects from the

Chambers Creek program. NMFS 16023 (analyzing the effect of harvesting returning adults).

Moreover, the Tribe has clearly stated that it will not release juvenile Chambers Creek fish, and

NMFS has not exempted the release of these juvenile fish from take prohibitions. NMFS 16072

(“the LEKT terminated the Chambers steelhead release program in 2012.”). Except for harvesting

the returning adults (the last of which will return in 2014), this program is completely terminated.37

Id. Thus, it is entirely unclear what purpose declaratory relief would serve. See NMFS 16090 (Term

& Condition 3(d): requiring the removal of the last year of returning Chambers Creek adults).

Indeed, when Plaintiffs’ own experts were asked what their preferred management action would be

with respect to Chambers Creek, both answered that they would harvest the last year of returning

adults and discontinue the release of juveniles, which is exactly what the Tribe is doing. Howell

Decl., Ex. 2 at 8 (Stanford Depo. P. 106, 108-09); Howell Decl., Ex. 1 at 5 (Luikart Depo. p.46-47).

Finally, Plaintiffs’ suggestion that there could be contract rescission, even if there were a

basis to award retrospective relief under the ESA, which there is not, ignores the fact that Plaintiffs

37 Plaintiffs’ argument, that there is continuing genetic introgression from Chambers Creek stock, does not reflect the best available science. As NMFS found in the December BiOp, the evidence of genetic introgression is unsubstantial. See NMFS 016072 (“Genetic analyses conducted by NMFS indicate that genetic introgression effects on the native Elwha River steelhead population resulting from the now terminated LEKT [Chambers Creek] program have been unsubstantial.”). Moreover, Plaintiffs’ post-decisional arguments are likely best explained by the fact there is a common genetic ancestry among all the Puget Sound steelhead stocks, rather than genetic introgression between Elwha and Chambers Creek stocks. See Busack Decl. ¶¶ 24-25; see also Howell Decl., Ex. 1 at 6 (Luikart Depo. p. 142-44) (acknowledging that his post-decisional analyses likely reflect common ancestry rather than introgression).





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did not provide a 60-day notice to BIA and therefore the Court lacks jurisdiction over BIA contracts.

ECF 112 at 5 (“To the extent that Plaintiffs seek relief against the [BIA] the Court is without

jurisdiction to hear this claim.”). Plaintiffs’ claim is moot and does not warrant declaratory relief.38

VI. CONCLUSION

For the reasons stated above, the Court should grant Federal Defendants’ motion and deny

Plaintiffs’ motion for summary judgment.

Dated: July 24, 2013.

JENNY DURKAN United States Attorney BRIAN C. KIPNIS Assistant United States Attorney 5220 United States Courthouse 700 Stewart Street Seattle, WA 98101-1671 Telephone: (206) 553-7970 Fax: (206) 553-4073 E-mail: [email protected] ROBERT G. DREHER Acting Assistant Attorney General SETH M. BARSKY, Section Chief

/s/ Carter (Coby) Howell CARTER HOWELL, Trial Attorney Wildlife & Marine Resources Section JOSEPH T. MATHEWS Natural Resource Section U.S. Department of Justice Environment & Natural Resources Division c/o U.S. Attorney’s Office 1000 SW Third Avenue Portland, OR 97204-2902

38 Plaintiffs challenge NMFS’ Rule 4(d) approval under Limit 6. NMFS 16205. Plaintiffs, however, provide no reason why this final agency action is arbitrary and capricious and simply rely on their NEPA and ESA arguments. ECF 153 at 58. Blanket assertions are not sufficient to carry Plaintiffs’ burden under the APA of demonstrating that this separate and independent final agency action is arbitrary and capricious.





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(503) 727-1023 / (503) 727-1117 (fx) [email protected]

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing were today served via the Court’s CM/ECF

system on all counsel of record.

/s/ Carter (Coby) Howell

CARTER HOWELL


the honorable benjamin h. settle · no. 3:12-cv-05109-bhs iii u.s. dept. of justice , environment...

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