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Friday, July 19, 2024 | Back issues
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Court Orders Protection of|Trout From Salmon Farm

(CN) - A salmon hatchery on north-central Washington's Icicle Creek may be contributing to the extinction of the endangered bull trout, the 9th Circuit ruled Tuesday.

The appellate court in Seattle reversed a district judge's decision, citing a "legally flawed" opinion from the U.S. Fish and Wildlife Service that was too limited in scope and relied upon "dubious" reasoning.

There is no evidence to back the agency's decision that the Leavenworth National Fish Hatchery is not likely to jeopardize the bull trout's continued existence, the ruling states.

"The hatchery's reliance on a legally flawed biological opinion was arbitrary and capricious," Judge Marsha S. Berzon wrote for the panel. "The hatchery therefore violated its substantive duty to ensure that its operations and maintenance did not jeopardize the continued existence of the bull trout."

The federal government built the Leavenworth hatchery in the late 1930s to replace salmon-spawning grounds in the upper Columbia River blocked by the Grand Coulee Dam.

Berzon wrote that over the years "and somewhat ironically," one of the unintended consequences of the hatchery has been a marked declined in the population of migratory bull trout, a federally protected endangered fish.

For more than 60 years migratory bull trout that hatched in upstream tributaries could migrate downstream over the hatchery's spillway, but they could not return upstream to spawn.

Since 2001 the hatchery has periodically opened routes over the hatchery to allow the bull trout through, but a larger project to that effect has been delayed, according to the ruling.

Nonetheless, the Fish & Wildlife Service issued a biological opinion in 2008, concluding that the hatchery's operations from 2006 to 2011 would not jeopardize the bull trout's survival.

The Wild Fish Conservancy, a nonprofit in the state, argued in district court that the agency's opinion violated the Endangered Species Act and the National Environmental Policy Act.

On appeal, the three-judge appellate panel noted the contradiction between the agency's findings - that the bull trout's are struggling for survival in Icicle Creek - and its conclusion that the hatchery is unlikely to harm the fish's chances.

The agency confirmed in its opinion that Icicle Creek, a tributary of the Wenatchee River, has the smallest local population of migratory bull trout in the river's "core area." It also found that the bull trout's numbers in the creek have been declining for 70 years - ever since the hatchery was built - and that there are likely fewer than 20 spawning pairs in the creek, the ruling states.

"The service failed adequately to explain how this conclusion can be squared with its ultimate determination that the 2006-2011 operations and maintenance 'reasonably would [not] be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery' of the Columbia River interim recovery unit," wrote Judge Berzon (parentheses in original). "It is not our role to decide whether the findings in the 2008 biological opinion require a jeopardy conclusion.

"Instead, as noted, we must determine whether the agency 'articulated a rational connection between the facts found and the conclusions made.' We must hold that it did not."

The appellate court also found that the agency had committed a "legal error" by limiting the scope of the opinion to five years, and that it failed to properly account for the number of trout that would potentially be killed by anglers and other means.

"The service was required to use the best information available, including information about future infrastructure improvements, to consider the effects of the hatchery's ongoing operations on the bull trout," Berzon wrote.

Instead, it came up with an arbitrary review period of five years, which the circuit has ruled before violates the ESA.

"The hatchery simply made a decision, endorsed by the service, to define the action as a five-year term of operations, when it might as easily have chosen a thirty-year term or a one-year term," Berzon added. "The artificial division of a continuing operation into short terms can undermine the consulting agency's ability to determine accurately the species' likelihood of survival and recovery."

The panel reversed the district court's ruling and remanded the case with instructions for the lower court to grant the plaintiff injunctive relief until the service complies with the ESA.

In a partial dissent, Judge Raymond Fisher argued that the majority's expectations of the agency aren't supported by the ESA.

"The service provided a rational basis for its no jeopardy conclusion," he wrote. "To conclude otherwise requires neglecting the environmental baseline and distrusting agency experts' analysis of the scope and relevance of continued population decline, mitigated by remedial agency action."

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