James L. Buchal, OSB #92161

Murphy & Buchal LLP

1500 SW First Avenue, Suite 1135

Portland, OR 97201

503-227-1011


IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON


UNITED STATES OF AMERICA,


Plaintiff,


  Civil No. 98-3034-HO


v.


   
GRANTS PASS IRRIGATION DISTRICT,


Defendant.


   

MEMORANDUM IN OPPOSITION TO THE MOTION OF THE UNITED STATES FOR A TEMPORARY RESTRAINING ORDER AND IN SUPPORT OF CROSS-MOTION FOR TEMPORARY RESTRAINING ORDER


Dated: May 12, 1998


Preliminary Statement 3

I. BACKGROUND FACTS AND PROCEDURAL HISTORY 5

II. HOW THE NATIONAL MARINE FISHERIES SERVICE APPLIED THE ENDANGERED SPECIES ACT TO THE DISTRICT. 15

III. THE UNITED STATES CANNOT MEET THE STANDARD REQUIRED TO OBTAIN A TEMPORARY INJUNCTION. 30

IV. THE SECRETARY'S DECISION TO LIST ROGUE RIVER COHO AS "THREATENED" WAS ARBITRARY, CAPRICIOUS AND CONTRARY TO LAW. 42

V. THE SECRETARY'S DECISION TO INVOKE  4(D) OF THE ENDANGERED SPECIES ACT AND EXTEND THE "TAKINGS" PROHIBITION TO ROGUE RIVER COHO WAS ARBITRARY, CAPRICIOUS, AND CONTRARY TO LAW. 55

VI. THE SECRETARY'S DENIAL OF A  10 PERMIT FOR THE DISTRICT WAS ARBITRARY, CAPRICIOUS AND CONTRARY TO LAW. 57

VII. NMFS' ABUSES OF DISCRETION, AND THREATS TO THE CONSTITUTIONAL RIGHTS OF THE DISTRICT AND ITS PATRONS, MERIT THE ENTRY OF A TRO AGAINST ENFORCEMENT OF THE TAKE PROHIBITION. 68

Conclusion…………………………………………………………………………………………………………….71

Preliminary Statement

 

In the Endangered Species Act, Congress has endowed unelected officials of the National Marine Fisheries Service (NMFS) with little more than general and conflicting directives: to protect listed species, to allow "incidental take" when it will not exterminate the species, and to work cooperatively with local agencies where water resource issues were concerned. Under the Supreme Court's decision in Chevron USA, Inc. v. N.R.D.C., 467 U.S. 837, 845 (1984), this Court must determine whether NMFS made "a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute".


Here the National Marine Fisheries Service has refused to issue a permit to the Grants Pass Irrigation District to "take" listed Southern Oregon/Northern California coho salmon. The District began its efforts to get a permit months before these officials even exercised their discretion to make some kinds of incidental "taking" of coho salmon unlawful. But unbeknownst to the District, the officials involved had already made up their minds to expand their permitting authority to force the removal of Savage Rapids Dam, and had no intention of working cooperatively with the District to improve fish passage at the Dam. Rather than do what Congress authorized—working with irrigation districts to minimize and mitigate the effects of irrigation diversions—they have asserted the power to require the District to destroy its existing facilities and construct new ones from scratch, no matter how much it costs and no matter how much environmental damage might result.


The District has no permit to "take" Rogue River coho because the officials involved, self-described "dambusters", decided months ago to shut the District down. And then, instead of telling the District of this decision, they waited until the eve of the irrigation season to bring their motion to this Court. This conduct is deplorable. It cannot possibly represent a reasonable accommodation of the conflicting policies established in the ESA.


The Government has brought its immense resources, resources that could have been used in assisting the District to improve fish passage at the Dam, to prove the obvious: Savage Rapids Dam kills fish. The asserted Federal interest is that the fish being killed are protected under the ESA. The District contends that the decision to list Rogue River coho as part of a Southern Oregon/Northern California "Evolutionarily Significant Unit" (ESU) was not made in accordance with law, removing an essential predicate for the relief sought. It was an abuse of discretion to lump healthy Rogue River coho runs with weaker California runs. There can be no serious dispute that the Rogue River coho, by themselves, are not in any risk of extinction. As NMFS' lead biologist testified:


"A: No." (Smith Tr. 82)1


NMFS may well have discretion to protect weaker California coho runs, but extending ESA protections to Rogue River runs in this action will not help the California runs at all.


The District also contends that even if the fish were properly listed, the decision to treat them as if they were "endangered" was not made in accordance with law, removing a second essential predicate for the relief sought. Again, NMFS has abused its discretion by increasing protections on freshwater habitat to the limit of the law for a population in no danger of extinction whatsoever, while totally exempting harvest and hatchery operations that "take" thousands of Rogue River coho.


And even if the United States did lawfully determine to protect these fish, the District contends that the decision of the National Marine Fisheries Service (NMFS) to deny an incidental take permit pursuant to  10 of the ESA was not made in accordance with law, removing a third essential predicate for the relief sought. NMFS abused its discretion by insisting on dam removal as a "maximum practicable" mitigation measure, even as it recognized that the District could not possibly afford to pay for dam removal.


As set forth below, each of these three decisions by NMFS was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law " within the meaning of the Administrative Procedure Act, 5 U.S.C.  706(2)(A). The Grants Pass Irrigation District has the probability of prevailing on the merits as to the unlawfulness of these three decisions, not NMFS.


To obtain a temporary restraining order, the United States must also demonstrate that the balance of hardships and the public interest favor entry of an injunction. Entry of the relief sought will irreparably injure thousands of people in the Grants Pass Irrigation District. Crops will fail, wells will go dry, property values will evaporate, recreational opportunities will be lost, and dreams will die. The United States proposes to impose these losses on the Grants Pass Community for a slight gain in the survival of fish so numerous in recent years that excess returning adults at the hatchery (the progeny of listed fish) have been given away by the thousands to charity. Like the probability of success on the merits, the balance of hardships tilts decidedly in favor of the District.


The Grants Pass Irrigation District was formed in 1917 to provide irrigation water to its patrons in Jackson and Josephine Counties, Oregon. (2d Cramer Decl. Ex. 1, at 1) The District constructed Savage Rapids Dam in 1921 and used the resulting reservoir to feed diversions on the north and south side of the Rogue River near Grants Pass, Oregon. The south diversion facility uses gravity to divert water into the canals south of the river. The north diversion facility uses a water-powered turbine pump to pump the water up into canals north of the river.


There are presently approximately 7,738 patrons in the District, over 1,500 of whom have no other source of water for irrigation. (Cauble Aff. at 2) Over 200 of these are larger irrigators, many of whom rely on irrigated crops as a primary source of income. (Id.)


At one point in 1994, the District's Board passed a resolution in favor of dam removal, but only if eleven conditions were met to hold the District harmless from the resulting expenses. (Id. at 24) No one has ever been willing to pay, however. In 1993 and 1994, the Oregon Legislature made efforts to affirm the continued existence of Savage Rapids Dam, leading to SB 1006, which authorized the Savage Rapids Dam Task Force. (Becklin Decl. at 4) The Task Force deliberated for most of 1996, and delivered its recommendations to Governor Kitzhaber in November 1996. (Id. at 5) The Task Force's Report is DX65.


The Task Force carefully considered dam removal and retention alternatives and ultimately recommended retaining the Dam with significant improvements for fish passage. (DX65) An ODFW biologist, Michael Evenson, was on the Task Force and supported the Dam retention alternative. (Evenson Tr. 20-23) One reason for this finding was the risk that would arise from the release of possibly hazardous sediments trapped behind the Dam. (Becklin Decl. at 5) These hazards are described in more detail in Point VI(C)(2) infra.


The Task Force, and more particularly its Chairman, also conducted a thorough review of costs, finding that the United States had grossly underestimated the costs of dam removal, and grossly overestimated the costs of dam retention. (See generally Becklin Decl. at 12-16) The United States has been unable to answer questions raised by the Chairman, including: whether the fish passage designs in the dam removal operation could or would be certified as acceptable by NMFS (id. at 13); whether the proposed pumping station would work at all (id. at 13-14); how sediment transport problems would be handled (id. at 14-15). In all the controversy over the Dam, no government agency has ever calculated the costs and benefits of dam retention vs. costs and benefits of dam removal. (Evenson Tr. 18-19)


The Second Declaration of Steve Cramer contains extensive materials about the status of Rogue River coho. He explains that "the number of wild coho returning to the Rogue River has been increasing since about 1980, following a period of depressed returns in the 1960s and 1970s". (2d Cramer Declaration  28) The most recent estimates indicate that 46,967 adult Rogue River coho returned in 1997; while the precise proportion of hatchery fish is unknown,2 at least 20,000 of these were wild Rogue River coho. (Id.) The increases in abundance are corroborated by dam counts at Gold Ray Dam, seining estimates at Huntley Park (at the mouth of the Rogue), and surveys of spawner densities. (Id. 28-31) In 1997, the peak number of wild Rogue River coho spawners "averaged substantially higher in the Rogue River Basin than in any other coastal basin in Oregon". (Id.  31)


In short, present wild Rogue River coho salmon runs are at the highest level ever measured, and in all probability approaching historic peaks. Moreover, this rebound has occurred notwithstanding harvest rates of at least 50%, and probably higher. (Evenson Tr. 58-59; see also Satterthwaite Tr. 39 (noting population has "increased in abundance dramatically")) NMFS acknowledges that "[t]here are very few rivers in the Pacific Northwest where more salmon are returning than have ever been counted before . . ." (Smith Tr. 81)


Commercial landings of coho off the coast of Washington, Oregon and California have remained "roughly constant since 1895, ranging mainly between 1.0 and 2.5 million fish, with a low of 390,000 fish (1920) and a high of 4.1 million fish (1971)". (Status Review at 98 (data up to 1982).) While past coho harvest rates exceeded 80%, total harvest in the future is expected to be limited to 10-13% unless weaker stocks improve substantially. 62 Fed. Reg. at 24,604.


In the Rogue River, "a majority of wild coho are produced in the basin downstream from Savage Rapids Dam" (2d Cramer Decl. Ex. 1, at 4) and thus are not affected by dam passage at all.


Under  4(a)(1) of the ESA, the Secretary determines whether species should be listed as threatened or endangered based on several statutory factors:


As set forth below, none of these factors support treating Rogue River coho as "threatened", i.e., "likely to become endangered".


The District has to date been denied any meaningful discovery into the rationale for the Secretary's decision to list SONC coho. What little we know about the listing decision comes from review of the expurgated files concerning the Secretary's decision not to list northern Oregon coho, and documents the United States has produced which refer, as if by accident, to the listing decision. The District thinks it possible that full discovery would show that Rogue River coho salmon were listed specifically to remove Savage Rapids Dam because Federal and Oregon officials were frustrated with their inability under existing law to dictate removal of the Dam.


From the discovery to date, it appears that the core reasoning for NMFS' listing decisions is contained in a September 1995 "Status Review of Coho Salmon from Washington, Oregon, and California" and 1997 Status Review Update prepared by a "Biological Review Team". These two documents contain no coherent rationale for lumping abundant Rogue River coho with weaker California runs.


The Biological Review Team appeared to be laboring under a misconception that "identifying ESUs provides biological information for the species on a scale corresponding to the smallest units that can be listed under the ESA." (Status Review at 6.)3 In fact, as Dr. Morris acknowledged, Rogue River coho could by themselves fit within NMFS' ESU definition. (Morris Tr. 12)


Indeed, the administrative record suggests fisheries managers have known for decades that regulating salmon run by run is the only rational approach to salmon management:


Although NMFS conducted a good deal of sophisticated DNA analysis, it did not support the notion that Rogue River coho should be lumped with California coho. "In general, populations from southern Oregon also differ from [unlisted] coastal Oregon populations north of Cape Blanco. However, some samples from the Rogue River show an unexplained genetic affinity to samples from outside the region, including some from the Columbia River." (Status Review at 75.)


No witness has yet been able to proffer any rationale for listing Rogue River coho other than the decline of less abundant California coho. (See, e.g., Morris Tr. 12-13) Mr. Morris could offer no explanation of why the Service could not single out the weaker California rivers and regulate them directly through the ESA, and indicated that Mr. Stelle would be the person who might offer such an explanation. (Morris Tr. 40) The United States refuses to make Mr. Stelle available for questioning.


With regard to risk of extinction, the Status Review properly noted that "[s]hort- and long-term trends in abundance are a primary indicator of risk in salmonid populations". (Status Review at 96.) Under the heading "Analyses of Extinction Risk by ESU", the Status Review arbitrarily truncates discussion of the Rogue River trend in the late 1970s. (Id. at 111.) The "Conclusion" for SONC coho:


As to Rogue River coho, this conclusion is simply contrary to fact. The BRT appears to have simply overlooked the long-term upward trend in natural coho production in the Rogue River; the reference to negative "present trends" has no application to Rogue River coho.


By 1997, NMFS had updated the Status Review, stating that:


Perhaps because of additional negative information concerning the California stocks, the BRT concluded that "the new information did not substantially change the overall assessment of risk to this ESU, and the BRT concluded that the ESU is likely to become endangered in the foreseeable future".6 Like the 1995 status review, the 1997 Status Review Update contains no specific findings with respect to the status of Rogue River coho.


NMFS finally cited some quantitative estimates of extinction probability in the Status Review Update. Unfortunately, the model runs did not model extinction in the sense of the ESA, in that they did not predict the likelihood that the population would decline to one fish.7 Two models (Schreck and Nickelson/Lawson) were not run for the SONC coho ESU.8 The third model (Chilcote) defined extinction risk as the probability that the population would drop below 100 fish.9 That model is discussed in detail in Point IV(C)(2) infra.


The District has not had the time or ability to get its hands on these models and run them to generate probabilities of extinction, but it is apparent that the probability of a population dropping to one is a lot less than the probability of dropping to 100. We know this because Rogue River coho counts at Gold Ray Dam have dropped below 100 at least twice before rebounding to thousands.10


Another factor besides the rising population trend that obviously reduces risk to Rogue River coho is the presence of a large hatchery that produces Rogue River coho. NMFS admits that hatchery production is a "safety net" for wild stocks. 68 Fed. Reg. at 38,480.


The Cole Rivers hatchery above Savage Rapids Dam has a long-standing practice of incorporating 1/3 wild parents in the next generation of releases. (Evenson Tr. 50). These fish are virtually identical to wild Rogue River coho and cannot be distinguished from them with even the most sophisticated genetic testing; the only way to tell the difference is to examine microscopic rings on their scales, akin to tree rings, which show different growth patterns. (Evenson Tr. 51-52). NMFS acknowledges that the "Rogue River hatchery stock should be included in the definition of this ESU", but "not listed". 62 Fed. Reg. at 24,608.


Prior to the SONC coho listing, NMFS' position was that "if included in the ESU of a listed species, hatchery fish would be protected under the Act and could be used in a recovery program. Alternatively, hatchery fish can be excluded from the ESU, in which case they should be kept as separate as possible from the fish in the ESU to minimize effects on the listed species."11 Consistent with this technical recommendation, NMFS promulgated a policy that declaring that "progeny of fish from the listed species that are propagated artificially are considered part of the listed species and protected under the ESA". 58 Fed. Reg. 17573 (April 5, 1993).


In listing SONC coho, NMFS determined to disregard this policy because:


Given that wild Rogue River coho populations recovered in part because of the hatchery program (Mathews Decl.  6), the notion that the hatchery has no role to play in recovery makes sense only if one considers these fish to have already been "recovered"—which they are. Thus NMFS declares that wild Rogue River coho are too "abundant" to apply its normal hatchery policies, yet purports to treat them as if they were endangered.


It is important to recognize that the Status Reviews by the biologists wholly ignored a critical factor for listing under the ESA: "Possible future effects of recent or proposed conservation measures have not been taken into account in this analysis." (Status Review at 101.) But lower harvest rates are a prime factor supporting the conclusion that Rogue River coho will continue to increase. (Mathews Decl.  8)


On May 6, 1997, the Secretary issued a "final rule" determining to list SONC coho as "threatened" under the ESA. The announcement began with the assertion that "coho populations are very depressed in this ESU, currently numbering less than 10,000 naturally produced adults. (62 Fed. Reg. 24,588) In fact, wild Rogue River coho populations alone exceeded 20,000 fish (in a single year class). (2d Cramer Decl.  28) Thus NMFS was off by more than a factor of six on the total population. The listing notice did acknowledge that Rogue River coho populations had "increased substantially over the last three years" (62 Fed. Reg. at 24,588); the upward trend had in fact persisted for many years.


NMFS took the position that "there is no accepted methodology or explicit listing criteria for determining the likelihood of extinction for Pacific salmon". (62 Fed. Reg. at 24,589) NMFS then asserted that it would consider several factors in determining whether to list Pacific salmon, including: "(1) absolute numbers of fish and their spatial and temporal distribution; (2) current abundance in relation to historical abundance and carrying capacity of the habitat; (3) trends in abundance . . . ; (4) natural and human-influenced factors that cause variability in survival and abundance; (5) possible threats to genetic integrity . . . ; and (6) recent events (e.g., a drought or change in management) that have predictable short-term effects on the ESU's abundance". 62 Fed. Reg. at 24,590. NMFS did not, however, provide any analysis of how these six factors could be applied to Rogue River coho populations, or, for that matter, much analysis as to the SONC coho ESU as a whole. Savage Rapids Dam is not mentioned in the listing decision.12


While NMFS found the Oregon Coastal Salmon Restoration Initiative (OCSRI) sufficient to avert a listing of northern Oregon coastal coho (62 Fed. Reg. 24,607), the very same conservation measures were deemed insufficient to protect SONC coho. According to NMFS,


The Court may regard such language as tantamount to a finding that the OCSRI's effect on Rogue River coho, if considered as the "species" of concern, would be sufficient to reduce the risk to Rogue River coho and avert a finding of "threatened" status.


On July 18, 1997, the Secretary promulgated an "interim rule" pursuant to  4(d) of the ESA, 16 U.S.C.  1533(d), extending the "taking" prohibition to SONC coho, except for "taking" in harvest and hatchery operations. 62 Fed. Reg. 38,479. The rule exempted harvest because the Oregon Coastal Salmon Restoration Initiative "provides a comprehensive package of measures that reduce harvest rates to an average harvest rate of less than 15 percent". 62 Fed. Reg. at 38,480. NMFS did not specifically address whether permitting a large recreational fishery on the hatchery fish would have effects on the wild fish (from illegal harvest, catch and release mortality, etc.).


No rationale whatsoever was offered for imposing  9 "taking" rules on Rogue River coho; the Rogue River is not even mentioned in the rule. Nor did the rule even mention Savage Rapids Dam, even though NMFS already had desires to enforce the rule against Savage Rapids Dam months before the rule passed.


The rule contains a certification that it "will not have a significant economic impact on a substantial number of small entities". (62 Fed. Reg. at 38,481) There is no discussion of the substantial impacts to Grants Pass Irrigation District patrons. Instead, NMFS asserted


NMFS even claimed that it had "identified no business entities likely to be forced to cease business operations as a result of this rule" (62 Fed. Reg. at 38,483), even though it had already considered an enforcement action to shut down the District.


1 This citation form refers to the deposition transcripts, submitted as attachments to the Second Declaration of Leann Bleakney. The Second Declaration of James L. Buchal provides further information as to citation forms.

2 It is true that half the fish are hatchery fish now, but much of the coho spawning habitat was destroyed decades ago; the Cole Rivers hatchery has done what hatcheries are supposed to do: mitigate for lost habitat. In recent years, Rogue River coho have been so abundant that "thousands" of adults returning to the Cole Rivers hatchery have been killed and given away to charity. (Evenson Tr. 54)

3 Indeed, the Status Review's Glossary defines ESU as "a 'distinct' population of Pacific salmon, and hence a species, under the Endangered Species Act" (Status Review at 183), representing a complete confusion of legal and biological terms.

4 W. Rich, Contribution No. 1, Oregon Fish Commission (1939), quoted in W. Nehlsen et al., "Pacific Salmon at the Crossroads: Stocks at Risk from California, Oregon, Idaho and Washington", Fisheries 16(2) (March-April 1991).

5 Status Review Update at 32.

6 Status Review Update at 33.

7 A NMFS technical paper explains "[g]iven that the ESA defines endangerment in terms of extinction (not just low numbers), perhaps the best alternative is to set [effective population size]=1, at least for indices that measure total population." Thompson (1991), at 35.

8 Status Review Update at 22.

9 Id.

10 It is also important to remember that salmon counts can drop to zero for one or even two years in a row without the population becoming extinct because of the remaining year classes at sea.

11 J. Hard et al., "Pacific Salmon and Artificial Propagation under the ESA", Technical Memorandum NMFS-NWFSC-2 (Oct. 1992), at 5.

12 The listing notice referred interested parties to Mr. Garth Griffin (62 Fed. Reg. 24,588), the very individual who had discussed with Mr. Smith the effects of a listing on Savage Rapids Dam. See infra Point II(B).

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