WILD FISH CONSERVANCY v. SALAZAR

onclusion that the "current distribution and abundance of the bull trout in the action area" is "not likely to change": (1) the persistence of the Icicle Creek bull trout population since 1940; and (2) the detection of six migratory bull trout upstream of the Hatchery in 2006 and 2007. See id. at 84. Elaborating on the second reason, the 2008 BiOp asserted that the' periodic breeding of migratory and resident bull trout that would "potentially" occur during the term of the action "is likely to contribute to maintaining and improving the viability of this local population and its contribution to the viability of the core area and interim recovery unit populations of the bull trout." Id.

Neither reason adequately explains the contradiction between the Service's findings and its conclusion. First, the fact that the local population has survived since 1940 does not provide any information about how much longer it can hold on. If there are now fewer than twenty spawning individuals and the population continues to decline, then, absent some intervention, the population will eventually reach zero, its long prior existence notwithstanding. Moreover, even before a population is extinguished, it may reach a point at which it is no longer recoverable: "a species can often cling to survival even when recovery is far out of reach." Nat'l Wildlife Fed., 524 F.3d at 931. The Service has not determined when the tipping point precluding recovery of the Icicle Creek bull trout population is likely to be reached, nor, necessarily, whether it will be reached as a result of the 2006-2011 operations and maintenance of the Hatchery.

Second, the discovery of a small number of migratory bull trout upstream of the Hatchery in 2006 and 2007 does not, in light of the 2008 BiOp's other findings, support the Service's conclusion that the 2006-2011 action will not affect bull trout distribution and abundance in Icicle Creek. The Service found that the action was likely to " reduce, and in some years preclude, demographic and genetic contributions by migratory bull trout to the small resident bull trout population." 2008 BiOp at 71 (emphasis added). True, before 2001, there were no migratory bull trout spawning successfully, and under the 2006-2011 operations and maintenance there may — possibly — be a very few, although that is far from certain. But any positive impact from the small number of migratory bull trout upstream can only occur if that impact is not offset by the number of bull trout who are not born or die because the Hatchery impairs upstream migration.

The Service found that between 2001, the first year the Hatchery began adjusting its dams to allow some upstream migration, and 2007, the second year of the action period, there was no net gain: "Not enough migratory bull trout are likely to have passed upstream of the [Hatchery] and successfully spawned between 2001 and 2007, to fully offset the reduced [bull trout] B[irths] and I[mmigration], plus increased D[eaths], caused by [operations and maintenance] at [the Hatchery]." Id. at 49. Moreover, the 2008 BiOp found that stabilizing the local population would require "at least a few pairs of male and female migratory bull trout . . . successfully spawning] in Icicle Creek annually," id., but the action would likely preclude any spawning by migratory bull trout in some years. That is why, presumably, the bottom line of the Service's findings is that as a result of the 2006-2011 action, the local bull trout population will continue to decline. As noted, the Service failed to draw a rational link between that finding and its conclusion that the action would not affect the "current distribution and abundance of the bull trout in the action area."

Nor did the Service articulate a rational connection between its findings and its ultimate conclusion — that the action would not cause jeopardy at the recovery unit scale. The Service has identified the following "survival and recovery needs" for the Columbia River unit: "maintain or expand the current distribution of the bull trout within core areas; maintain stable or increasing trends in bull trout abundance; maintain/restore suitable habitat conditions for all bull trout life history stages and strategies; and conserve genetic diversity and provide opportunities for genetic exchange." Id. at 84. In considering the impact of the action on the Columbia River interim recovery unit, the Service concluded:

[T]he proposed action is likely to contribute to the survival of the bull trout by providing some upstream passage opportunities for migratory bull trout in Icicle Creek, but is not likely to appreciably increase its recovery at the action area, core area, interim recovery unit, and rangewide scales because it will impair upstream passage of migratory bull trout during the optimal period of in-stream flows However, the effect of improved upstream passage conditions caused by the proposed action . . . should improve, albeit in only a small way, the contribution of the Icicle Creek local population to the survival of the bull trout.

For the above reasons, the effects of implementing the proposed [Hatchery] operations from May 2006 through December 2011, are not likely to substantively change the capacity of the Columbia River interim recovery unit to provide both the survival and recovery functions assigned to it. For that reason, the proposed action is not likely to appreciably reduce the likelihood of both the survival and recovery of the bull trout in the wild.

Id. at 86-87. This conclusion simply does not account for the finding that the number of bull trout in Icicle Creek would continue to decrease over the action period. The 2008 BiOp does not explain how a "negative" population trend in Icicle Creek could "improve . . . the contribution of the Icicle Creek bull trout population to the survival of the bull trout." It may be that, as we conjectured in the preceding section, the decrease in the local population over the five-year period under study would not have an "appreciable" negative impact on the interim recovery unit. But how it could have a positive impact remains un-clear.

The Service might also have found that even if the Icicle Creek bull trout population were extirpated, its loss would not jeopardize the survival or recovery of the Columbia Creek interim recovery unit. But it did not make that finding, and it is far from obvious that the extirpation of the Icicle Creek population would be harmless. The 2008 BiOp reports that bull trout populations in the Columbia River interim recovery unit are generally declining and are strong in only 6 to 24 percent of the occupied range. See id. at 19. The Wenatchee River core area is particularly important to the recovery unit because it is a "relative stronghold" for bull trout in the upper Columbia River area. Id. at 36. Further, the Icicle Creek local population is important to the core area because its location in the lower basin "could insulate this population from disturbances in the upper basin that would affect most of the others." Id. at 50. At oral argument, the Service emphasized the buffer function the Icicle Creek population might play if other local populations in the core area were threatened.

In sum, the Service was "obligated to articulate a rational connection between the facts found and the conclusions made." Pac. Coast Fed., 426 F.3d at 1091 (internal quotation marks and alteration omitted). It did not do so. Because "an agency's action must be upheld, if at all, on the basis articulated by the agency itself," id., we must reverse and remand on this basis as well.

C.

The 2008 BiOp was also required to consider the effects of activities interrelated with the proposed agency action. See 50 C.F.R. § 402.02. The Hatchery uses about 100,000 pounds of fish food to feed the salmon it rears each year, resulting in 30,000 pounds of solid wastes. See 2008 BiOp at 80. The Hatchery uses a pollution abatement pond to collect these wastes. Periodically, waste is removed from the pond and spread out on dry ground at the Hatchery.

The Conservancy contends that the Service did not address the effects of cleaning the pollution abatement pond. In particular, the Conservancy is concerned about the effects of runoff from the wastes spread on land at the Hatchery. The 2008 BiOp reports that the fish food used at the Hatchery "is a source of very small amounts of PCBs polychlorinated biphenyls]," although samples collected from the top layer of sediments in the pollution abatement pond "did not have significantly elevated levels of PCBs." Id. at 66. The Conservancy worries that runoff associated with the cleaning of the pollution abatement pond may contain PCBs and pesticides that could adversely affect bull trout.

We agree with the Service that the 2008 BiOp adequately considered the effects of runoff. In the section entitled "Release of Effluent into Icicle Creek," the Service described the operation of the pollution abatement pond and noted that it was last cleaned in 2007. Id. at 80. It concluded that "hatchery effluent release into Icicle Creek is unlikely to cause adverse effects to the bull trout." Mat 81.

Although the Service's discussion of the effects of the pollution abatement pond could have been more detailed, we are satisfied that the agency did not "entirely fail[] to consider an important aspect of the problem," as it did give the matter some consideration. Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc), abrogated in part on other grounds, Winter v. Nat Res. Def. Council, 555 U.S. 7, 129 S.Ct. 365, 375, 172 L.Ed.2d 249 (2008). Moreover, there is no indication that the runoff issue is an important aspect of the jeopardy determination. The Service points to the results of a 2005 study of PCB and pesticide concentrations in Icicle Creek, the pollution abatement pond, and Hatchery salmon, reported in the Biological Assessment for Operation and Maintenance of the Leavenworth National Fish Hatchery. According to the Biological Assessment, "[d]ata show that [the Hatchery] is not adversely impacting the PCB or pesticide concentrations in Icicle Creek below the hatchery and hatchery fish are not accumulating PCB or pesticides to levels of concern." U.S. Fish Wildlife Serv., Biological Assessment for Operation and Maintenance of Leavenworth National Fish Hatchery 61 (2006).

We therefore reject the Conservancy's contention that the 2008 BiOp is invalid because it did not adequately address the effects of the pollution abatement pond.

D.

When the Service concludes that a proposed agency action will not jeopardize the continued existence of the species but is likely to result in incidental takings, it issues an "incidental take statement" with the biological opinion. 50 C.F.R. § 402.14(i)(4).16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14. The statement must "specif[y] the impact of such incidental taking on the species," as well as "those reasonable and prudent measures . . . necessary or appropriate to minimize such impact." 16 U.S.C. § 1536(b)(4). The statement acts as a safe harbor, exempting the specified amount of incidental taking from the take prohibition of ESA section 9. "If during the course of the action the amount or extent of incidental taking, as specified [in the statement], is exceeded, the Federal agency must reinitiate consultation immediately."

Here, the Service issued an incidental take statement ("Statement") setting the following annual limits on incidental take: (1) one bull trout killed and one harmed by the water intake system; and (2) twenty migratory bull trout injured because their access to historically accessible spawning habitat is impaired, significantly disrupting their breeding behavior. See 2008 BiOp at 92. The Conservancy challenges the adequacy of the Statement on two separate grounds.

1.

First, the Conservancy contends that the Statement does not account for the full extent of incidental take. The Hatchery facilitates an active tribal Chinook salmon fishery at the base of its spillway pool, and the 2008 BiOp estimated that some bull trout would be harvested incidentally by tribal anglers. See 2008 BiOp at 73. Take of bull trout in accordance with state and tribal fishing regulations is exempt from the ESA's take prohibition. See 50 C.F.R. § 17.44(w)(2). Nonetheless, the Conservancy maintains that the Hatchery takes bull trout by closing dam 5 during the bull trout's spring migration, which results in large numbers of bull trout lingering in the spillway pool, where they may fall prey to tribal anglers fishing for Chinook salmon. If this "take" were included in the Statement, then the Hatchery would be required to comply with reasonable and prudent measures to minimize the take. See 16 U.S.C. § 1536(b)(4).

We conclude that it was reasonable for the Service not to attribute to the Hatchery the take of bull trout by tribal anglers. Tribal fishing rights in Icicle Creek are guaranteed by treaties and other' agreements. See United States v. Confederated Tribes of Colville Indian Reservation, 606 F.3d 698 (9th Cir. 2010). Although the Hatchery's operations likely do increase the numbers of bull trout lingering in the spillway pool, were the Hatchery to change its operations with the result that the spillway pool became less productive as a Chinook salmon fishing area, the Service might very well be obligated to provide alternative locations for the tribal fishery — which might also result in the taking of bull trout. Take of bull trout by tribal anglers is exempt from the ESA wherever it occurs, as long as tribal regulations are followed. Holding the Hatchery responsible for take by tribal anglers would be incongruent with the special rule exempting tribal fishing from the ESA's take prohibition. It was therefore not arbitrary and capricious for the Service to exclude take associated with the tribal fishery from the Statement.

2.

Second, the Conservancy argues that the Statement does not include adequate monitoring requirements. The Statement anticipates that up to twenty migratory bull trout will be injured each year, because Hatchery operations will significantly disrupt their breeding behavior by preventing or delaying their spawning migration. Yet, the Statement does not require the Hatchery to monitor and report the actual number of bull trout so harmed.

"Incidental Take Statements set forth a `trigger' that, when reached, results in an unacceptable level of incidental take, invalidating the safe harbor provision, and requiring the parties to reinitiate consultation." Ariz. Cattle Growers' Ass'n v. U.S. Fish Wildlife, 273 F.3d 1229, 1249(9th Cir. 2001). Preferably, the trigger is numerical, but the Service may use a surrogate — for example, changes in ecological conditions affecting the species. Id. at 1250. If a surrogate is used, the agency must articulate a rational connection between the surrogate and the taking of the species. Id. at 1250-51. This court has rejected a surrogate trigger so vague that it failed to "provide a clear standard for determining when the authorized level of take has been exceeded," id. at 1251, and a surrogate so broad" "all spotted owls" associated with the project — that it "could not adequately trigger reinitiation of consultation." Or. Natural Res. Council v. Allen, 476 F.3d 1031, 1038 (9th Cir. 2007).

The Service contends that the Statement is adequate because it provides a clear numerical cap on take — twenty bull trout prevented from spawning — beyond which consultation must be reinitiated. Unlike the other anticipated takings discussed in the Statement, however, the twenty-bull trout limit is not accompanied by a monitoring and reporting requirement. For example, the Statement requires the Hatchery to monitor and report the number and types of fish caught in the water intake system. See 2008 BiOp at 94-95. The question, then, is whether the consulting agency is responsible only for providing a clear cap, leaving it up to the action agency to monitor take and reinitiate consultation when the trigger is met, or whether the consulting agency must also set out monitoring and reporting requirements.

The ESA's implementing regulations provide that "[i]n order to monitor the impacts of incidental take, the Federal agency or any applicant must report the progress of the action and its impact on the species to the Service as specified in the incidental take statement." 50 C.F.R. § 402.14(i)(3) (emphasis added). The regulation makes clear that the Service is responsible for specifying in the statement how the action agency is to monitor and report the effects of the action on listed species.

Here, the Service has set a clear numerical cap, but a numerical cap is useful only insofar as the action agency is capable of quantifying take to determine when the trigger has been met. See Or. Natural Res. Council, 476 F.3d at 1039 (explaining that the incidental take statement must "set a clear standard for determining when the authorized level of take hats] been exceeded"); Natural Res. Def. Council, Inc. v. Evans, 279 F.Supp.2d 1129, 1187 (N.D.Cal. 2003), cited with approval in Or. Natural Res. Council, 476 F.3d at 1038 ("It is arbitrary and capricious to set the trigger at one animal unless defendants can adequately detect the taking of a single animal"). Thus, the Service must either specify monitoring and reporting requirements with respect to the twenty-bull trout limit or, if appropriate, select a surrogate trigger that can be monitored. Therefore, we hold that the ITS failed to establish a meaningful trigger for renewed consultation after the take exceeded authorized levels.

E.

Finally, ESA section 7 also imposes on the Hatchery a substantive duty to ensure that its operations are not likely to jeopardize the continued existence of the bull trout. "Arbitrarily and capriciously relying on a faulty Biological Opinion violates this duty." Defenders of Wildlife v. EPA, 420 F.3d 946, 976 (9th Cir. 2005), rev'd on other grounds, Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007). An agency's reliance on a biological opinion based on "admittedly weak" information satisfies its ESA obligations as long as the challenging party can point to no new information undercutting the opinion's conclusions. Pyramid Lake Paiute Tribe of Indians v. U.S. Dep't of Navy, 898 F.2d 1410, 1415 (9th Cir. 1990). Where the opinion's flaws are " legal in nature," however, "[discerning them requires no technical or scientific expertise," and the failure to do so may result in "an action based on reasoning `not in accordance with law* and . . . thus arbitrary and capricious." Defenders of Wildlife, 420 F.3d at 976.

Here, the Service committed legal error by limiting the scope of the action to five years; failing to articulate a rational connection between its findings in the 2008 BiOp and its no jeopardy conclusion; and issuing an inadequate incidental take statement. The Hatchery's reliance on a legally flawed biological opinion was arbitrary and capricious. The Hatchery therefore violated its substantive duty to ensure that its operations and maintenance did not jeopardize the continued existence of the bull trout.

III.

We conclude that the 2008 BiOp is arbitrary and capricious because the Service limited the analysis to a five-year period, failed to articulate a rational connection between the facts found and the conclusions made, and issued an incidental take statement lacking adequate monitoring and reporting requirements. Additionally, the Hatchery violated its substantive duty to ensure that its operations did not jeopardize the continued existence of the bull trout. We reverse and remand to the district court with directions to grant the Conservancy's motion for summary judgment and to grant injunctive relief until the Service complies with its obligations under the ESA.

REVERSED and REMANDED.