The ESA authorizes the Secretary to issue permits for incidental take whenever the applicant submits "a conservation plan" and the Secretary finds:
"(i) the taking will be incidental;
"(ii) the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking;
(iii) the applicant will ensure that adequate funding for the plan will be provided;
(iv) the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild; and
"(v) the measures, if any, required [by the Secretary as 'necessary or appropriate'] will be met . . ." 16 U.S.C. § 1539(a)(2)(A).
As set forth above, the District submitted its "conservation plan" to NMFS, triggering a sudden declaration by NMFS that the § 10 statutory permitting requirements and its implementing regulations forbid any conservation plan that did not include removal of Savage Rapids Dam. This ad hoc determination is arbitrary, capricious and contrary to law. (NMFS admits that it is plainly within its discretion to issue an incidental take permit without dam removal. (Morris Tr. 89; see also 2d Cramer Decl. ¶ 5))
The obvious purpose of § 10 is to permit citizens whose activities may "take" listed species to continue those activities where the toll they exact on the species is not too large. Summarizing the 1982 Amendments, Congressman Breaux advised that the incidental take provision was to protect entities in precisely the status of the District:
"We also learned that project sponsors who had consulted in good faith and received opinions that their projects would not jeopardize endangered species were faced with the uncertainty that their projects could still be shut down and their operators liable for criminal and civil penalties if the project resulted in the incidental taking of species, even if that was contemplated in the consultation process and would not jeopardize the species. H.R. 6133 would provide for such takings subject to measures designed to minimize the takings." Cong. Rec. 12,958 (June 8, 1982); see also id. at 12,959 (same remarks by Congressman Forsythe).
Further support for this interpretation comes from a comparison of permitting requirements under § 7 of the Endangered Species Act. Courts have repeatedly recognized that consultations for § 7 incidental take "statements" and consideration of § 10 incidental take permits involve parallel requirements. The legislative history confirms the parallel: "The Secretary would base his determination on whether or not to grant the permit under the same standard as found in Section 7(a)(2) of the Act, that is, whether or not the taking would jeopardize the continued existence of the species." H. Rep. 97-567, 97th Cong., 2d Sess. 31 (1982). A "Habitat Conservation Plan Handbook published by NMFS and the U.S. Fish and Wildlife Service confirms that the "practical effect" of § 7 and § 10 are "the same", with a "'no-jeopardy' finding" being the critical factor in permit issuance. (Handbook at 7-4)
Thus the § 7 implementing regulations, which provide considerably more specificity than the § 10 regulations, are an important source of guidance as to what NMFS ought to be doing during the permitting process. Those regulations confirm that NMFS' discretion as the "terms and conditions" that may be imposed on sister agencies in an incidental take statement is properly quite limited. Under those regulations, NMFS has declared that in evaluating agency action, the "reasonable and prudent measures [it imposes], along with the terms and conditions that implement them, cannot alter the basic design, location, scope, duration or timing of the action and may involve only minor changes". 50 C.F.R. § 402.14(i)(2) (emphasis added).
Obviously, telling an applicant that proposes to use water power from a dam to pump water to irrigators to rip out the dam, install electric pumps, and/or to not take any water during the irrigation seasons runs afoul of the "minor change" rule. And that rule is precisely congruent with the overriding intent of Congress: if the applicant is not going to jeopardize the continued existence of the species, and is making reasonable and prudent efforts to avoid killing them, the applicant ought to be allowed to go forward.45
The language and legislative history of Endangered Species Act do not suggest that the Secretary has the power to impose greater permitting requirements on non-Federal entities than Federal agencies. In both cases, the Secretary has power to ask for reasonable efforts to avoid losses. Compare 16 U.S.C. § 1536(b)(4)(C)(ii) (authority to impose "necessary or appropriate measures") and 16 U.S.C. § 1539(a)(2)(A)(iv) (authority to impose "necessary or appropriate measures"). NMFS has itself asserted that the requirements are essentially the same. See generally 55 Fed. Reg. 20,603, 20,604 (May 18, 1990); Handbook at 7-4. In construing the statute, this Court ought to presume, if anything, that the Secretary should be less invasive of non-Federal rights, particularly when water rights are concerned.
NMFS has issued its own regulations purporting to implement the statute, which suggest that NMFS will consider five factors in determining whether to issue a permit: (i) the status of the affected species or stocks; (ii) the potential severity of direct, indirect and cumulative impacts on the species or stocks and habitat . . .; (iii) the availability of effective monitoring techniques; (iv) the use of the best available technology for minimizing or mitigating impacts; and (v) the views of the public, scientists and other interested parties . . . .". 50 C.F.R. § 222.22(c)(1) (emphasis added). The overriding factor of importance in this litigation is (iv), because NMFS claims that "the best available technology for minimizing impacts of Savage Rapids Dam on SONC coho is dam removal". (Complaint ¶ 47) The regulations describe these factors as only ones to "consider"; NMFS is not bound to issue or deny a permit based on any of them.
The regulations also set forth the findings NMFS is to make to issue a permit, which parallel those in the statute: "(i) the taking will be incidental; (ii) the applicant will, to the maximum extent practicable, monitor, minimize and mitigate the impacts of such taking; (iii) the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild; (iv) the applicant has amended the conservation plan to include any measures . . . that the Assistant Administrator determines are necessary or appropriate; and (v) there are adequate assurances that the conservation plan will be funded and implemented, including any measures required by the Assistant Administrator." 50 C.F.R. § 222.22(c)(2). The overriding factor of importance in this litigation is (ii), because NMFS claims that only by removing the dam will the District mitigate impacts on Rogue River coho to the "maximum extent practicable". (See Complaint ¶¶ 46-47)
Thus under the regulations, NMFS asserts the authority to require any necessary or appropriate measures, and to require the applicant to pay for them. There is scant judicial authority interpreting the term "maximum practicable", only dictum in a parallel context that it "does not permit an agency unbridled discretion". Fund for Animals v. Babbitt, 903 F. Supp. 96, 107 (D.D.C. 1995).
NMFS will doubtless claim that the District never filed a formal permit application until after this action was filed. In a hypertechnical sense, that is true. But in the real world, as NMFS' witnesses acknowledge, the § 10 permitting process never begins with a formal permit application pursuant to 50 C.F.R. § 222.22. Rather, the application is "generally preceded by a long process during which we discuss the issue[s]". (Morris Tr. 133; see also Smith Tr. 133 ("I never suggested that GPID begin the HCP process with an official application")) This is in the interest of NMFS, because the formal permit application may trigger a very short deadline for a decision on the application. 50 C.F.R. § 222.24(c) (10/1/94 edition; the current status of this regulation, which is attached as Appendix 10 to the Handbook, is unclear).
As set forth above, NMFS short-circuited the permit process with its astounding demandpurportedly retracted only after the litigation commencedthat dam removal was required to issue any permit. NMFS' conduct has placed the District and this Court in a difficult position. Ordinarily, it would be NMFS' duty to evaluate the District's proposed take of salmon, and determine whether or not to grant a permit for it. But NMFS has subverted this process. This Court does not have the benefit of NMFS' evaluation of the District's conservation plan, and NMFS has failed utterly to make the findings required in § 10(a)(2)(A), 16 U.S.C. § 1539(a)(2)(A). That alone renders its decision to insist on dam removal arbitrary and capricious.
NMFS' witnesses involved in interpreting the term "maximum practicable" acknowledged that there was "nothing in writing" to "assist the Service's employees in interpreting the term 'practicable'". (Morris Tr. 19) It was left to Mr. Smith and Mr. Meyer to interpret the term in this, their first § 10 consultation.
Congress plainly intended the cost of mitigation measures to be a relevant condition in assessing whether mitigation measures proposed by any particular permit application were the "maximum practicable". In describing the 1982 bill containing the maximum practicable language, Congressman Evans advised that the bill
"protects our national heritage at the same time it provides for a timely balancing of environmental and economic interests on the rare occasions when the two are irreconcilably in conflict. Both elements are necessary if we are to have a strong, workable act." 128 Cong. Rec. at 12,959-60 (June 8, 1982)
Congresswoman Schneider amplified these remarks, stating that the law would provide
"ample opportunity subsequent to the listing of a species to balance the benefits of protecting a listed species against the cost of doing so. Indeed, that is precisely the purpose of the exemption process which Congress added in 1978 and which this bill further streamlines." Id. at 12,960 (emphasis added).
NMFS' Habitat Conservation Planning Handbook acknowledges that "economic considerations" may be used in rejecting alternatives to the proposed activity, "especially when the effects on the applicant would be significantly adverse or economically infeasible". Handbook at 3-36.
NMFS, however, denies flatly that "cost [is] an element of . . . practical [sic] practicability"; its requirements are "entirely invariant over any range of costs". (Morris Tr. 20-21) Mr. Morris disclaimed any knowledge as to the cost of replacing fish passage facilities on the north side of the Dam. (Morris Tr. 113) He asserts that NMFS made the decisions now at issue without any knowledge of the District's ability to pay for fish passage improvements generally. (Morris Tr. 113)47
Mr. Smith was more candid: "It's my belief that the Service's position . . . is that the District could notthe District cannot afford to correct the fish passage problems at the project". (Smith Tr. 178)
Mr. Smith is right. As the Chairman of the District explains in his Declaration, the District cannot pay for these improvements, and if it attempted to raise the rates to do so, it would suffer a "death spiral" patrons abandoned irrigation and left the District, leaving fewer and fewer patrons to pay higher and higher costs. (Becklin Decl. at 10) The $250,000 in electricity costs that NMFS proposes to impose on the District by shutting down the water-powered turbines would by themselves raise rates to an unaffordable level. (Id. at 11) Ironically, the principal effect would simply be to shift the environmental impacts elsewhere, where the electricity is generated. (Id. at 11-12)
Even if someone had the money to pay for dam removal, it would be arbitrary and capricious for NMFS to insist on dam removal without further study of the effects of dam removal. Widespread placer mining, involving the release of large quantities of highly toxic mercury, have created a substantial risk that the sediments behind the Dam contain toxic substances. (Becklin Decl. at 5-6) Apart from toxicity problems, the general issue is that the mud can "smother eggs" of salmon and steelhead over which it settles (Budziak Tr. 43).
NMFS claims not even to know how much sediment is trapped behind the Dam (Morris Tr. 75) The only sampling that was ever done until the District's Chairman personally hired engineers to do it (the results are not available yet) was the Bureau of Reclamation's analysis of a shovel-full of sediment off the top. (Becklin Decl. at 6-7; Smith Tr. 145-46)
Yet NMFS also asserts that "no matter what is buried in there, we should still take out the dam". (Morris Tr. 77 ("Essentially, yes."); see also Smith Tr. 137)
"Q: So not matter how much it costs to remove the dam and clean up whatever mess may be created in the process, the Service maintains that dam removal is the maximum practicable mitigation method?
"A: Yes." (Smith Tr. 147)
The ODFW representative who actually spent time reviewing sediment issues on the Task Force acknowledged that "the responsible thing to do would be to consider" information that became available on the contents of the sediment. (Evenson Tr. 36; see also Satterthwaite Tr. 25 ("it seems prudent to do an analysis of the effects of the release"); Budziak Tr. 43-45)
The consulting engineer for the Task Force identified a number of dam removal efforts that had gone awry from the release of sediments, and opined that there was a "high risk of serious ecological and environmental damage". (Becklin Decl. Ex. 2) ODFW admitted that "there could be some short-term negative effects due to the release of fines [fine particles]", and acknowledged that such effects could persist for 10 or 20 years. (Evenson Tr. 35 (reporter omitted word "years)). NMFS' Mr. Morris simply asserted that the sediment was "largely what anadromous fish use for spawning and rearing and for normal reproduction in the system . . ." (Morris Tr. 76) What is visible at the Dam, however, is mud or "fine sediment", not spawning gravels. (See Satterthwaite Tr. 24)
The District's Chairman has personally funded a $75,000 study to determine the contents of the study, but the results are not yet available. (Becklin Decl. at 8-9) A sediment transport study could provide no information, but no one has conducted one. (Evenson Tr. 35; Becklin Decl. at 9).
NMFS admits that "dam removal is several years away no matter what". (Morris Tr. 89) As two Josephine County Commissioners point out, there are many unresolved issues with respect to dam removal, including "assurances of affordable power costs, assurances that pumps will work and assurances that the sediment behind the dam will not cause harm to the river. These issues will take time to work out. Shortchanging the process needed to meet new regulations by an injunction is poor public policy." (Borngasser Aff. ¶ 6; Brock Aff. ¶ 6)
Under all these circumstances, it is patently unreasonable to regard immediate and unconditional commitment to dam removal as a Congressionally-authorized implementation of § 10's "maximum practicable" language.
NMFS now claims that the District should have begun discussions about "interim" measures to reduce incidental take in September, when NMFS "first raised the issue". (Morris Tr. 107) But Mr. Meyer admits that installing new screens could take "six months to several years", with the Savage Rapids facilities perhaps taking "a year". (Meyer Tr. 12-13) Mr. Smith thought that perhaps new north side screens could have been installed "before the majority of the irrigation season was past" (Smith Tr. 188), but offered no explanation of how they could be paid for.
Mr. Morris acknowledged that the only interim measure which the District refused to implement was reducing the amount of water diverted. (Morris Tr. 21) But the whole design of the statute is to permit the applicant to take the proposed action: here diverting 750-800 cfs of water to run a water-powered pumping station. Telling the applicant to simply not take the water goes far beyond "minimizing and mitigating" the impacts of the taking.
Mr. Meyer admitted that he could think of nothing else the District could do to improve adult fish passage through the ladders in the short term. (Meyer Tr. 100-01). Although Mr. Meyer would not clearly admit it, he has acknowledged to the District's professionals that he personally would be satisfied with modernizing fish passage facilities at the Dam rather than removing it. (Meyer Tr. 113 ("I may have [said that]."); see Garner Decl. ¶ 2)
Other than NMFS, all the fishery professionals seem to agree that the District has made the "maximum practicable" efforts to improve fish passage facilities consistent with meeting the District's obligations to deliver water to its patrons, if any reasonable definition of that term is employed. (Costello Dec1. ¶ 10; Evenson Tr. 11-12; Satterthwaite Tr. 35-36; Budziak Tr. 22-23; 2d Cramer Decl. ¶¶ 13, 26)
NMFS has bound itself to consider whether the District proposes "use of the best available technology for minimizing or mitigating impacts". 50 C.F.R. § 222.22(c)(1). NMFS employees have no guidance available as to what is the "best available technology":
"Q: So this is the only case in which the Service has ever interpreted the phrase 'best available technology' in its regulations to require dam removal?
"Q: . . . . Is there any piece of paper anywhere that an employee of the Service could use to assist him or herself in assessing whether some particular technology was the best available technology?
"A: Not that I'm aware of ." (Morris Tr. 72-73)
NMFS says that the best available technology for mitigation of dam effects is dam removal. On its face, this claim is incredible, for dam removal is not a mitigation measure but an elimination measure. And it is anti-technological, not a better form of technology at all.
In the policy section of the ESA, Congress decreed:
". . . it is further declared to be the policy of Congress that Federal agencies shall cooperate with State and local agencies to resolve water resource issues in concert with conservation of endangered species". 16 U.S.C. § 1531(c)(2).48
As set forth above, NMFS has acted flatly contrary to this policy, plotting enforcement actions against the District while professing to work cooperatively. Indeed, no one ever told Mr. Smith that he even had a duty to cooperate with the District. (Smith Tr. 139)
NMFS witnesses and the District's witnesses agree that the normal process of application for a taking permit is one of cooperative discussions. (Morris Tr. 20) In a normal, cooperative process NMFS and the applicant would discuss trade-offs between "interim" measures and longer-term structural changes. (Morris Tr. 113) Here, NMFS' arbitrary insistence on Dam removal, based on its longstanding prejudice against the Dam, short-circuited the normal process.
Finally, in order to show that an agency action is arbitrary and capricious on account of political pressure, the District must prove that (1) the pressure was designed to force NMFS to act on the basis of factors not made relevant by Congress in the ESA and (2) NMFS' determination must have been affected by those extraneous considerations. Town of Orangetown v. Ruckelshaus, 579 F. Supp. 15, 20 (S.D.N.Y. 1984), aff'd, 740 F.2d 185 (2d Cir. 1984). DX47 provides a prima facie case that Mr. Hemmingway of the Oregon Governor's office sought to influence NMFS on the basis of a wholly irrelevant factor: the relative likelihood of success in Oregon litigation and Federal litigation concerning the Dam. And it provides a prima facie case that NMFS' determination was affected; without the pressure from Mr. Hemmingway, NMFS might have continued to negotiate with the District in a cooperative fashion, rather than indulging his preference for an enforcement action.
44 There is no dispute that any takings here are "incidental to, and not the purpose of, the carrying out of an otherwise lawful activity". 16 U.S.C. § 1539(a)(1)(B).
45 Section 7 contains a statutory prohibition against "any irreversible or irretrievable commitment of resources . . . which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures" during the consultation process. 16 U.S.C. § 1536(d). Denying the injunction sought by the United States will not have such an effect; the District will continue to go forward with longer term plans to improve fish passage facilities at the Dam. (Becklin Decl. ¶ )
46 This phrase, which does not refer to impacts on specific stocks, is a term of art within NMFS' regulations, and closely parallels the definition of "jeopardize the continued existence of". 50 C.F.R. § 402.02.
47 Mr. Meyer could offer no explanation of how to determine whether an applicant had done the "maximum practicable", and referred the question to Mr. Smith. (Meyer Tr. 16) Mr. Smith gave an answer related to the "means of the applicant", but seemingly unrelated to NMFS' position in this action. (Smith Tr. 186-88).
48 Oregon law also requires ODFW to "emphasize cooperative effort and mutual understanding with those responsible for water diversions that need fish screening or bypass devices". ORS 498.248. It would appear that it, too, is ignoring the will of the legislature in its anti-dam zeal.
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