Case 3:12-cv BHS Document 67 Filed 11/15/12 Page 1 of 26

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1 Case :-cv-00-bhs Document Filed // Page of 0 0 WILD FISH CONSERVANCY, et al., v. Plaintiffs, NATIONAL PARK SERVICE, et al., Defendants, I. MOTION. SUMMARY JUDGMENT - No. :-CV-00-BHS UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA ) ) ) ) ) ) ) ) ) HONORABLE BENJAMIN H. SETTLE No. :-CV-00-BHS PLAINTIFFS FIRST MOTION FOR PARTIAL SUMMARY JUDGMENT NOTE ON MOTION CALENDAR: December, 0 Pursuant to Rule, Plaintiffs hereby move for partial summary judgment and respectfully request the Court enter an order finding Defendants Doug Morrill and Larry Ward, in their official capacities as Natural Resources Director and Hatchery Manager, respectively, for the Lower Elwha Klallam Tribe (collectively, Elwha Defendants ) in violation of section of the Endangered Species Act ( ESA ). Plaintiffs further move the Court pursuant to Rule for an order finding Defendant Department of Interior ( DOI ) in violation of section (a)() of the ESA for failing to consult or, in the alternative, finding biological opinions issued by NOAA Fisheries Service ( NMFS ) arbitrary, capricious, and not in accordance with law.

2 Case :-cv-00-bhs Document Filed // Page of 0 0 II. INTRODUCTION. The removal of two dams on the Elwha River will be the largest dam removal project in United States history, opening up over seventy miles of river habitat to salmonids. These efforts have been mandated by an act of Congress directing the full restoration of the Elwha River ecosystem and native anadromous fisheries, and are expected to cost taxpayers approximately $. million. This project, as envisioned by Congress, affords a unique opportunity for wild salmonids to quickly re-colonize large expanses of pristine habitat. The Elwha Defendants, however, intend to flood the river with hatchery fish to expedite commercial harvests. These large releases of hatchery fish will overwhelm the small and fragile populations of wild salmonids, thereby impeding or even preventing the full recovery of wild fish. The Elwha Defendants hatchery operations cause illegal take of salmonids listed as threatened under the ESA. Plaintiffs request with this motion that the Court find the Elwha Defendants to be in violation of the ESA for such unauthorized take. The Elwha Defendants hatchery programs are funded by DOI, and DOI is therefore required to consult with NMFS and the United States Fish and Wildlife Service ( FWS ) under section (a)() of the ESA regarding the effects these programs have on threatened salmonids. Plaintiffs request the Court find DOI in violation of the ESA for failing to comply with these consultation requirements. To the extent that DOI asserts that such consultation has occurred, Plaintiffs request the Court find the biological opinions issued by NMFS facially inadequate. III. THE ENDANGERED SPECIES ACT. A. The Prohibition on Take of ESA-Listed Species. When the ESA was passed in it represented the most comprehensive legislation for the preservation of endangered species ever enacted by any nation. Tenn. Valley Auth. v. Hill, SUMMARY JUDGMENT - No. :-CV-00-BHS

3 Case :-cv-00-bhs Document Filed // Page of 0 0 U.S., 0 (). The stated purpose of the statute is to conserve threatened and endangered species and to protect the ecosystems upon which those species depend.. U.S.C. (b). Conserve is defined to mean to use all methods necessary to bring the species to a point where the protections afforded by the statute are no longer necessary. U.S.C. (). The ESA contains protections designed to save species from extinction. See Babbitt v. Sweet Home Ch. of Comtys. for a Great Or., U.S., 0 (). Implementation responsibilities are assigned to the Secretaries for the Departments of Commerce and Interior, who have delegated responsibilities to NMFS and FWS, respectively. See 0 C.F.R Section of the ESA prescribes mechanisms by which NMFS and FWS list species as endangered or threatened. U.S.C. () and (a). Section of the ESA makes it unlawful to take endangered species. U.S.C. (a)()(b). The take prohibition has generally been applied to threatened species by regulations promulgated under section (d) of the ESA. See U.S.C. (d); 0 C.F.R.. and.(a); 0 C.F.R..0(a). Take is defined broadly to include harass, harm, wound, kill, trap, capture, or collect a protected species. U.S.C. (). Harm includes significant habitat modification which kills or injures fish by significantly impairing essential behavioral patterns, including breeding, spawning, rearing, migrating, feeding, or sheltering. 0 C.F.R..0; see also Sweet Home, U.S.. NMFS defines harass to include actions that have the potential to injure an animal or disrupt its normal behavioral patterns to a point where such behaviors are abandoned or significantly altered. Third Decl. of Brian A. Knutsen ( Knutsen Decl. ), p.. An endangered species is one in danger of extinction throughout all or a significant portion of its range, and a threatened species is a species which is likely to become an endangered species within the foreseeable future U.S.C. () and (0). Section of the ESA makes it unlawful to violate any such regulation. U.S.C. (a)()(g). SUMMARY JUDGMENT - No. :-CV-00-BHS

4 Case :-cv-00-bhs Document Filed // Page of 0 0 B. Section (a)() of the ESA and Incidental Take Statements. Section (a)() of the ESA requires federal agencies to insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered species or threatened species. U.S.C. (a)(). In carrying out this mandate, federal agencies are required to consult with NMFS and/or FWS (the consulting agencies ) for actions that may affect ESA-listed species. 0 C.F.R. 0.(a) and (b). Such consultation concludes with the consulting agency s issuance of a biological opinion determining whether the action is likely to jeopardize ESA-protected species. 0 C.F.R. 0.(h)(). If the consulting agency concludes that jeopardy is not likely or can be avoided with reasonable and prudent alternatives, the biological opinion is to include an incidental take statement specifying terms under which take of listed species incidental to the action may occur. U.S.C. (b)(); Aluminum Co. of Am. v. Adm r, Bonneville Power Admin., F.d, (th Cir. ). Any take in compliance with an incidental take statement is not prohibited by the ESA. U.S.C. (b)() and (o)(); 0 C.F.R. 0.(i)(). C. NMFS (d) Rule and (d) Limits for Threatened Salmonids. NMFS has promulgated regulations under section (d) of the ESA that apply the take prohibition to several threatened salmonid species, including Puget Sound steelhead and Puget Sound Chinook salmon. 0 C.F.R..0(c)() and (), and.0(a). NMFS created exclusions from this rule, commonly referred to as the (d) Limits. 0 C.F.R..0(b). One exclusion Limit allows for take resulting from artificial fish propagation programs operating in compliance with a NMFS-approved Hatchery Genetic Management Plan ( HGMP ). 0 C.F.R..0(b)(). NMFS has established rigid criteria for reviewing and approving HGMPs. 0 C.F.R..0(b)()(i)(A)-(I). Another exclusion Limit SUMMARY JUDGMENT - No. :-CV-00-BHS

5 Case :-cv-00-bhs Document Filed // Page of 0 0 authorizes take resulting from the implementation of a joint tribal/state [resource management] plan that NMFS has determined will not appreciably reduce the likelihood of survival and recovery of affected threatened [species]. 0 C.F.R..0(b)()(i). IV. STATEMENT OF FACTS. A. The Elwha River and the Elwha Restoration Project. The Elwha River flows north on the Olympic Peninsula in Washington State for approximately forty-five miles before emptying into the Strait of Juan de Fuca near Port Angeles. Knutsen Decl., p. ; id. at. The river s watershed encompasses approximately square miles, approximately of which are within the boundaries of the Olympic National Park. Id. at ; id. at. Nearly all of the Olympic National Park is protected as a wilderness area under the Wilderness Act. Pub. L. 00-, 0 Stat. (Nov., ). The Elwha River remains in uniquely pristine condition largely due to the protections afforded these federal public lands, and is believed to be one of the largest, mostly intact watersheds in the conterminous United States. Knutsen Decl., pp., 0; id. at. The Elwha River was once one of the most productive anadromous fish streams in the Pacific Northwest. See id. at ; and see id. at,. Anadromous fish hatch in freshwater, migrate to saltwater, and then return to their natal freshwater to spawn. Id. at. The Elwha and Glines Canyon Dams were constructed on the Elwha River early last century without fish passage structures, and have blocked upstream anadromous fish passage to more than 0 miles of mainstem and tributary habitat since around. Id. at ; id. at, -0. Anadromous fish returning to spawn have been confined to the lower. miles of the river below the Elwha Dam, and have therefore not had access to the vast majority of the river s spawning habitat. Id. at ; id. at -, 0. The result was a precipitous decline of SUMMARY JUDGMENT - No. :-CV-00-BHS

6 Case :-cv-00-bhs Document Filed // Page of 0 0 salmonid populations to fewer than,000 naturally spawning fish [in 00] compared to an estimated,000 fish prior to dam construction. Id. at,. Congress mandated the full restoration of the Elwha River ecosystem and native anadromous fisheries in the Elwha River Ecosystem and Fisheries Restoration Act, Pub. L. 0-, 0 Stat. (Oct., ) ( Elwha Act ). The Elwha Act authorized the Secretary of the Interior to acquire and remove the Elwha River dams to accomplish this objective. Pub. L. 0-, (a), 0 Stat.,. The total cost of the project constituting the largest dam removal in United States history is estimated to be around $ million. Knutsen Decl., p.. Dam removal began in September 0, and is expected to last two and a half to three years. Id. B. Threatened Salmonids. Three species of salmonids listed as threatened under the ESA are present in the Elwha River watershed Puget Sound steelhead, Puget Sound Chinook salmon, and bull trout.. Threatened Puget Sound steelhead. Steelhead is the name commonly applied to the anadromous form of the species Oncorhynchus mykiss. Fed. Reg., (May, 00). Steelhead migrate from freshwater to saltwater, and then back to their natal freshwater for spawning. See id. O. mykiss that do not migrate to saltwater, but rather exhibit a resident freshwater life-history, are commonly known as rainbow trout or redband trout. Id. Steelhead can spend up to seven years in freshwater prior to migrating to sea, and then up to three years in saltwater before returning to their natal streams for spawning. Id. Steelhead can spawn more than once during their lifespan (are iteroparous). Id. The Puget Sound distinct population segment of steelhead was listed as a threatened species under the ESA in 00. Id. The listed species includes naturally spawned steelhead in the river basins of the Strait of Juan de Fuca, Puget Sound, and Hood Canal, Washington, SUMMARY JUDGMENT - No. :-CV-00-BHS

7 Case :-cv-00-bhs Document Filed // Page of 0 0 bounded to the west by the Elwha River (inclusive) and to the north by the Nooksack River and the Dakota River (inclusive). Id.; 0 C.F.R..0(c)(). The ESA section take prohibition applies to this species. 0 C.F.R..0(c)() and.0(a).. Threatened Puget Sound Chinook salmon. Chinook salmon is the largest of the Pacific salmon species. Fed. Reg.,0,,0 (June, 00). Chinook salmon in Puget Sound are predominately ocean-type, meaning they migrate to saltwater during their first year after hatching. See id. at,0-0. The timing of return to freshwater for Chinook salmon varies between populations. Id. at,0. NMFS has listed the Puget Sound Chinook salmon evolutionary significant unit as a threatened species under the ESA. Fed. Reg.,0 (March, ); 0 Fed. Reg.,0 (June, 00). The listed species includes all naturally spawned populations from the rivers flowing into Puget Sound and the Strait of Juan De Fuca from the Elwha River, eastward, including rivers flowing into Hood Canal, South Sound, North Sound and the Strait of Georgia. 0 C.F.R..0(c)(). The listed species also includes twenty-six artificial propagation programs, including the Elwha River Chinook salmon hatchery program. Id. The ESA section take prohibition has been applied to threatened Puget Sound Chinook salmon. 0 C.F.R..0(c)() and.0(a).. Threatened bull trout. Bull trout are members of the Salmonidae family native to the Pacific Northwest and western Canada. Fed. Reg.,0 (Nov., ). Bull trout can exhibit either a resident or migratory life history. Id. Resident bull trout spend their entire life cycle in tributary streams where spawn and rear. Id. Migratory bull trout rear in tributary streams for one to four years after hatching and then migrate to larger bodies of water rivers, lakes, or saltwater to mature. SUMMARY JUDGMENT - No. :-CV-00-BHS

8 Case :-cv-00-bhs Document Filed // Page of 0 0 Id. Resident and migratory bull trout may be found together, and both forms may produce offspring exhibiting resident and migratory behavior. Id. FWS has listed the coterminous United States bull trout population as a threatened species and applied to it the ESA take prohibition. Id.; 0 C.F.R.. and.(a). C. The Elwha Defendants Hatchery Programs. Elwha Defendant Larry Ward has managed the Lower Elwha Klallam Tribe s hatchery operations since. Knutsen Decl., pp. 0, 0; id. at. Mr. Ward is responsible for managing all hatchery operations and other fish enhancement activities, maintaining the hatchery and associated facilities and equipment, and supervising hatchery staff. Id. at ; id. at ; id. at 0. Mr. Ward is under the supervision of the Lower Elwha Klallam Tribe s Fisheries Manager/Natural Resources Director. Id. at ; id. at 0. Elwha Defendant Doug Morrill has been the Fisheries Manager/Natural Resources Director for the Lower Elwha Klallam Tribe since 00. Id. at. Mr. Morrill oversees the hatchery and fisheries programs. Id. at -; id. at -. The hatchery operated by the Elwha Defendants is located in the lower Elwha River, approximately one mile from the river s mouth. Id. at. The hatchery operations are funded by DOI and its sub-agencies the Bureau of Indian Affairs ( BIA ) and the National Park Service ( NPS ). Dkt.,. 0 (admitting Complaint, Dkt., 0, sixth sentence); Knutsen Decl., p. 0; id. at ; id. at ; id. at 0, 0; id. at -.. The Chambers Creek steelhead program. A non-native steelhead program has been implemented at the hatchery since around. See id. at 0; id. at. This program utilizes a highly-domesticated stock known as Chambers Creek steelhead. See id. at 0; and see id. at. SUMMARY JUDGMENT - No. :-CV-00-BHS

9 Case :-cv-00-bhs Document Filed // Page of 0 0 The Chambers Creek steelhead program targets a broodstock collection of approximately 00,000 to 0,000 eggs each year from adult fish returning to the hatchery in December and January. See id. at 0-0; and see id. at. These fish are reared at the hatchery to yearling smolts and then approximately,000 to 0,000 are released into the Elwha River in the spring. See id. at 0; and see id. at ; and see id. at. Approximately,00 and,000 Chambers Creek steelhead smolts were released into the Elwha River in 00 and 0, respectively. Id. at ; and see id. at 0-0. Plaintiffs notified the Elwha Defendants of their intent to seek a preliminary injunction to prevent the release of Chambers Creek steelhead after this lawsuit was filed. Dkt., :-. The Elwha Defendants subsequently entered into an agreement with Plaintiffs under which releases of Chambers Creek steelhead into the Elwha River would not occur in 0, and the Court entered an Order to enforce that agreement. Dkt.. Chambers Creek steelhead were therefore not released in 0. See Knutsen Decl., p. 0. However, this program has not been discontinued, and proposals to terminate the program have been rejected. See id. at -.. The Native Elwha River steelhead program. The Elwha Defendants began operating a native Elwha River steelhead program in 00. Id. at 0; id. at ; id. at 0. The stated purposes of this plan are to preserve the stock during dam removal and to support fishing opportunities after dam removal. Id. at -. Broodstock for this program was developed by collecting and capturing eggs and fry of wild native Elwha River steelhead. Id. at 0, -; id. at ; id. at -. Each year from 00 through 0 between and, wild steelhead eggs and fry were removed from the Elwha River during the months of May through July. Id. at ; id. at ; id. at. These fish have been taken to the hatchery, reared for four years to adults, and then spawned (i.e., killed SUMMARY JUDGMENT - No. :-CV-00-BHS

10 Case :-cv-00-bhs Document Filed // Page 0 of 0 0 for their eggs and sperm) to provide hatchery broodstock. Id. at -. The last year that wild steelhead eggs and fry were collected was in 0, and those fish will remain at the hatchery until they are killed in 0. Id. at -. Starting this winter, eggs and fry from wild steelhead are no longer collected in the Elwha River, and returning adults will instead be captured for broodstock purposes. Id. at, ; id. at. It is proposed that a maximum of 00 adult steelhead will be captured each year for this purpose. Id. at,. Both hatchery-origin and wild ( natural-origin ) adult steelhead returning to the Elwha River will be captured and killed for broodstock purposes. Id. at. The native Elwha River steelhead broodstock are reared to age two smolts prior to their release. Id. at,, ; id. at. Approximately,000 steelhead are released under this program each year beginning in March or April and lasting through June. Id. at, ; id. at -. The first such release of,000 smolts occurred in 0. Id. at ; id. at,. The coho salmon program. There has been a coho salmon program at the hatchery since around intended to support commercial and recreational fisheries. Id. at ; and see id. at 0. A native Elwha River stock is used. Id. at ; id. at,. Broodstock for the coho salmon program is obtained from adults returning to the hatchery between October and December. Id. at ; id. at. The program currently targets a collection of 00 to 00 adults for broodstock purposes. Id. at ; id. at. The coho salmon are reared for approximately one year before being released beginning in March or April and lasting through May. Id. at ; id. at 0. The coho salmon program previously targeted an annual release of 0,000 smolts, but that number was reduced to,000 in the last several SUMMARY JUDGMENT - 0 No. :-CV-00-BHS

11 Case :-cv-00-bhs Document Filed // Page of 0 0 years. Id. at 0; and see id. at. Actual releases in recent years have varied between, and, smolts. Id. at ; id. at. D. Harm to Wild Salmonids Caused by Hatchery Programs. Hatchery programs harm wild salmonids through a variety of mechanisms. Harm results from genetic introgression, ecological interactions, and transfers of pathogens and parasites. James Lichatowich is a fishery and salmonid expert with extensive experience and recognitions. First Decl. of James Lichatowich ( Lichatowich Decl. ), -. Mr. Lichatowich recently served as a special consultant to the Hatchery Scientific Review Group ( HSRG ) in its review of the Elwha River hatchery programs. Id. at. Mr. Lichatowich explains that while it was once believed that hatcheries benefited wild populations, it is now understood that hatchery programs have contributed to the listing of salmon species as threatened and endangered under the ESA. Id. at. Dr. Gordon Luikart is a leading expert on wildlife population genetics from the University of Montana s Flathead Lake Biological Station. First Decl. of Gordon Luikart ( Luikart Decl. ), -. As he explains, fish quickly adapt to hatchery environments through evolutionary processes (natural selection). Id. at. In the process, fish rapidly lose the ability to avoid predation, resist disease, and forage and spawn efficiently. Id. When hatchery fish are able to crossbreed with wild fish, the maladaptive genes are transferred to the wild population. Id. at. The resultant offspring die prior to spawning at much higher rates than would otherwise occur with two wild parents. Id. at -. The HSRG is a congressionally chartered independent scientific panel charged with evaluating hatchery programs and their impacts on wild salmonids. Lichatowich Decl.,. SUMMARY JUDGMENT - No. :-CV-00-BHS

12 Case :-cv-00-bhs Document Filed // Page of 0 0 Dr. Jack Stanford is a premier expert on salmonid and river ecology with years of professional experience, the last of which he has served as the director of the University of Montana s Flathead Lake Biological Station. First Decl. of Jack Stanford ( Stanford Decl. ), -. Dr. Stanford explains that the ecological risks posed by hatchery programs include those associated with competition between wild and hatchery fish for food resources, rearing space and spawning territory, and predation of wild fish by hatchery fish. Id. at -. Additionally, spawning migration of wild salmonids can be disrupted by hatchery obstructions and by the wild fish being attracted to the smell of hatchery discharges. Id. at,. Hatchery operations also pose significant risks of transferring disease or pathogens to wild salmonid populations. Id. at ; and Luikart Decl.,,. E. Biological Opinions for Impacts to Salmonids. FWS and NMFS have issued biological opinions under section (a)() of the ESA associated with dam removal on the Elwha River. The biological opinions have not addressed the severe adverse effects hatchery programs have on wild salmonids, nor have they authorized the take caused by the Elwha Defendants hatchery programs. NMFS issued a biological opinion for the Elwha River Restoration Project dated November 0, 00 ( NMFS 00 BiOp ). Knutsen Decl., pp. -. Only two fish restoration activities were evaluated as part of the project collection of Chinook salmon broodstock and planting of hatchery fish in the upper Elwha River by helicopter. Id. at 0. The NMFS 00 BiOp did not evaluate the adverse effects of the Elwha Defendants hatchery operations. Id. at -. The incidental take statement included therein only authorized take of Puget Sound Chinook salmon caused by increased sediment from dam removal Puget Sound steelhead was not an ESA-listed species at the time. Id. at -. SUMMARY JUDGMENT - No. :-CV-00-BHS

13 Case :-cv-00-bhs Document Filed // Page of 0 0 NMFS issued another biological opinion dated July, 0 ( NMFS 0 BiOp ) in response to this lawsuit. Id. at -. The fish restoration activities evaluated in the NMFS 0 BiOp are limited to some Chinook salmon hatchery operations and out-planting of salmonids in the upper and middle Elwha River. Id. at -. The NMFS 0 BiOp states that other Elwha River hatchery operations are not part of the project under review. Id. at. The biological opinion therefore does not evaluate the adverse effects of the Elwha Defendants lower river hatchery operations (although it recites a generic summary of hatchery effects). Id. at -. The NMFS 0 BiOp includes an incidental take statement that purports to authorize take of threatened steelhead and Chinook salmon caused by some hatchery activities the handling of fish for transferring to unaffected areas and for hatchery broodstock collection. Id. at 0. Take associated with other hatchery activities, including from fish releases into the lower river, is not authorized. See id. at. Further, the incidental take statement requires a NMFSapproved monitoring and adaptive management plan ( MAMP ) be submitted to NMFS by June 0, 0 and fully implemented by September, 0. Id. at -. The MAMP has not been completed and approved, and whether it will ever be implemented is questionable. See id. at.h, id. pp. at -; id. at ; id. at -; id. at. FWS issued a biological opinion dated February, 000, evaluating the impacts of dam removal on threatened bull trout ( FWS 000 BiOp ). Id. at -. The FWS 000 BiOp did not evaluate the effects of the Elwha Defendants hatchery programs as part of the action under review. Id. at -. FWS included an incidental take statement authorizing take of bull trout caused by dam removal and construction activities. Id. at 0-. The incidental take statement does not authorize take of bull trout associated with any hatchery operations. Id. SUMMARY JUDGMENT - No. :-CV-00-BHS

14 Case :-cv-00-bhs Document Filed // Page of 0 0 F. The Elwha Defendants Recent Submission of HGMPs. The Elwha Defendants recently submitted HGMPs to NMFS seeking approval under Limit of the (d) Rule (0 C.F.R..0(b)()) for four artificial propagation programs programs for native steelhead, and for coho, chum, and pink salmon. Id. at. These HGMPs have not been approved. NMFS approval would authorize the release of up to. million hatchery fish into the Elwha River each year. Id. at. This action would significantly affect the environment and threatened salmonids and therefore requires preparation of an environmental impact statement under the National Environmental Policy Act, which has not been undertaken. See U.S.C. ()(C); and see 0 C.F.R. 0(b)(). V. STANDARD OF REVIEW. A party may move for summary judgment under Rule on all or part of a claim, and such relief shall be granted if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. FED. R. CIV. P. (a). Motions for partial summary judgment facilitate litigation by eliminating matters prior to trial for which there is no genuine issue of fact. See Lahoti v. Vericheck, Inc., F.d 0, 0 n. (th Cir. 00). A material fact is one relevant to the claim [d]isputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass n, 0 F.d, 0 (th Cir. ). There is no genuine issue of fact [w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., U.S., (). If the movant demonstrates the absence of genuine issues of material fact, the nonmoving party must SUMMARY JUDGMENT - No. :-CV-00-BHS

15 Case :-cv-00-bhs Document Filed // Page of 0 0 set forth, by affidavit or otherwise, specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., U.S., (); T.W. Elec. Serv., 0 F.d at 0. VI. ARGUMENT. A. The Elwha Defendants are in Violation of Section of the ESA. The Chambers Creek steelhead program, the native steelhead program, and the coho salmon program cause take of threatened salmonids. This take is not authorized by an incidental take statement or otherwise. Accordingly, the Elwha Defendants are in violation of section of the ESA.. Unauthorized take from the Chambers Creek steelhead program. Chambers Creek steelhead are highly-domesticated hatchery fish, and therefore pose severe risks to wild steelhead. The Elwha Defendants have continued the Chambers Creek steelhead program despite numerous expressions of concern and requests for termination from agency experts. Chambers Creek steelhead released in 00 and 0 will have access to the Elwha River above the dam site when they return as adults, and will cause take of threatened Puget Sound steelhead through genetic and ecological interactions. NMFS identified Chambers Creek steelhead hatchery programs as a concern when it listed Puget Sound steelhead as a threatened species under the ESA: Elwha Defendants Mr. Morrill and Mr. Ward are proper defendants for this claim asserted under the Ex Parte Young Doctrine. Such a claim is not a suit against the individual, but rather is a suit against the official s office. Miranda B. v. Kitzhaber, F.d, (th Cir. 00). The individuals named must have some connection with execution of the illegal or unconstitutional conduct. See Los Angeles County Bar Ass n v. Eu, F.d, 0 (th Cir. ); and see Hartmann v. Calif. Dep t of Corrections & Rehabilitation, No. :0-CV-000-LJO-SMS, 00 U.S. Dist. LEXIS, at * (E.D. Cal. April, 00) (named officials should have job duties that relate to the challenged conduct and should be able to respond to an order on injunctive relief). Mr. Morrill is the Natural Resources Director, charged with oversight of the fisheries and hatchery programs, and Mr. Ward is the hatchery manager. See supra Sec. IV.C. SUMMARY JUDGMENT - No. :-CV-00-BHS

16 Case :-cv-00-bhs Document Filed // Page of 0 0 The [Biological Review Team ( BRT )] concluded that efforts by hatchery managers to prevent natural spawning by Chambers Creek winter-run hatchery fish were unlikely to be completely effective, with potentially adverse consequences. The BRT concluded that opportunities for genetic and ecological interactions between hatchery and wild steelhead in Puget Sound were substantial, with significant potential to reduce natural productivity. Fed. Reg. at,. As dam removal on the Elwha River drew near, a white paper was prepared by experts from NMFS and the Lower Elwha Klallam Tribe to evaluate the risks of continuing the Chambers Creek steelhead program. Knutsen Decl., pp. -. The document found that there is a high likelihood of interaction between Chambers Creek steelhead and wild steelhead and other salmonids. Id. at. The paper concludes that Chambers Creek hatchery steelhead pose a significant risk to the wild steelhead and rainbow trout in the Elwha. Id. Experts from NMFS, NPS, and the Washington Department of Fish and Wildlife sent letters in the spring of 00 expressing similar concerns and requesting that the Chambers Creek program be discontinued. Id. at -; id. at -; id. at -. The program continued nonetheless. See supra, Sec. IV.C.. Approximately,00 Chambers Creek steelhead smolts were released into the Elwha River in the spring of 00, and approximately,000 were released in the spring of 0. Knutsen Decl., p.. These fish will return to the Elwha River in the next two to three years as adults, where they will have access to newly-accessible spawning grounds above the Elwha Dam site. Stanford Decl.,, ; Luikart Decl.,. Some of these fish will interact genetically with wild Puget Sound steelhead. Stanford Decl., -; Luikart Decl.,. The resultant offspring will have significantly reduced fitness for survival in the wild than would otherwise occur, and will therefore die at higher rates prior to spawning. Stanford Decl., ; Luikart Decl.,. Chambers Creek steelhead will also compete with wild Puget Sound steelhead for SUMMARY JUDGMENT - No. :-CV-00-BHS

17 Case :-cv-00-bhs Document Filed // Page of 0 0 mates and preferred spawning locations, which will reduce the spawning success of wild steelhead. Stanford Decl.,. The 00 and 0 Chambers Creek steelhead releases thus constitute significant habitat modifications that kill and injure threatened Puget Sound steelhead by impairing essential behavioral patterns, including spawning, rearing, feeding, and sheltering. Stanford Decl., ; and see Luikart Decl.,,. Such harm and harassment to threatened salmonids constitutes take. See 0 C.F.R..0; and see Knutsen Decl., p.. This take is not authorized under the ESA. See supra Sec. IV.E.. Unauthorized take from the native steelhead program. The native steelhead program causes take of threatened salmonids. This take occurs as a result of capturing and killing protected steelhead for the captive rearing program, genetic and ecological interactions, and facility effects. This take violates section of the ESA. Threatened Puget Sound steelhead eggs and fry have been collected and captured from the Elwha River to develop broodstock for the native steelhead program. Supra, Sec. IV.C.. Between, and eggs and fry were taken each year between 00 and 0 in the months of May through July. Knutsen Decl., p. ; id. at. These fish are being reared at the hatchery for four years to an adult stage and then killed for their eggs and sperm, with those collected in 0 to be terminated in 0. Supra, Sec. IV.C.. This conduct constitutes take. See U.S.C. () (defining take to include kill, capture, and collect); and see 0 C.F.R..0 (defining protected wildlife to include eggs and offspring). This take was not addressed This motion addresses violations that have occurred since December, 00, as the Complaint was filed on February, 0 and the applicable statute of limitations period is five years and sixty days. See Dkt. ; and see U.S.C. ; and see Sierra Club v. Chevron U.S.A., Inc., F.d, (th Cir. ) (discussing Clean Water Act citizen suit provision similar to that of the ESA). SUMMARY JUDGMENT - No. :-CV-00-BHS

18 Case :-cv-00-bhs Document Filed // Page of 0 0 in an incidental take statement prior to the NMFS 0 BiOp dated July, 0, thus take occurring prior to that date violated section of the ESA. See supra Sec. IV.E. This take continues to violate the ESA because the MAMP requirements of the incidental take statement have been violated. See id.; and U.S.C. (b)() and (o)(); and 0 C.F.R. 0.(i)(); and see Bennett v. Spear, 0 U.S., () (an incidental take statement authorizes take only where there is compliance with the prescribed conditions). The spring releases of approximately,000 hatchery steelhead smolts in 0 and 0 cause take through genetic introgression. One of the purposes of these releases is to produce returning hatchery adults that will spawn in the wild. Luikart Decl.,. These hatchery fish will have reduced fitness for survival and reproduction in the wild, and some of them will transfer their maladaptive genes to the wild steelhead population through crossbreeding. Id. at -; Stanford Decl., ; Lichatowich Decl.,. The result will be offspring that are less able to survive in the wild and that die at a higher rate prior to spawning. Luikart Decl.,, ; Stanford Decl., ; Lichatowich Decl.,. These releases also cause take of threatened salmonids through ecological interactions. The released hatchery smolts will compete with wild steelhead smolts, Chinook salmon smolts, and juvenile bull trout for food and for rearing and sheltering space in the lower Elwha River and in the estuary and nearshore environments. Stanford Decl., ; and see Lichatowich Decl.,. Such competition will injure and kill some threatened Puget Sound steelhead smolts, threatened Puget Sound Chinook smolts, and threatened bull trout. Stanford Decl., ; and see Lichatowich Decl.,. The hatchery smolts will also kill and injure some protected Chinook salmon and steelhead smolts through predation. Lichatowich Decl.,. Some of the released hatchery steelhead will not migrate to salt water, but will instead remain in the river. Stanford SUMMARY JUDGMENT - No. :-CV-00-BHS

19 Case :-cv-00-bhs Document Filed // Page of 0 0 Decl.,. These fish will kill and injure some rearing wild steelhead, rearing juvenile Chinook salmon, and bull trout by predation throughout the accessible reaches of the Elwha River. Id. The 0 and 0 releases of hatchery steelhead thus cause take in the form of significant habitat modifications that kill and injure threatened steelhead, threatened Chinook salmon, and threatened bull trout by impairing their essential behavioral patterns. See 0 C.F.R..0; and see Knutsen Decl., p.. This take results from the genetic and ecological interactions discussed above, and is not authorized under the ESA. See supra, Sec. IV.E. Finally, the native steelhead hatchery program causes take by creating a false attractant to returning adult threatened steelhead. Stanford Decl.,. These fish, attracted by the smell of the hatchery fish, will either injure themselves on the hatchery outfall gates or enter the hatchery and become trapped in the holding ponds. Id. Such injury or trapping is take under the ESA. See U.S.C. (). This take is not authorized. See supra, Sec. IV.E.. Unauthorized take from the coho salmon program. The releases of hatchery coho salmon cause take of threatened salmonids through ecological interactions, including predation. Such take violates section of the ESA. Large numbers of hatchery coho salmon have been released each spring from 00 through 0 available data indicates annual releases from, to, smolts. Knutsen Decl., p. ; id. at. These relatively large smolts prey upon and compete for food and for rearing and sheltering space with wild steelhead smolts, Chinook salmon smolts, and juvenile bull trout in the lower Elwha River and in the estuary and nearshore environment. Stanford Decl., 0. Each of these releases thus constitutes significant habitat modifications that kill and injure threatened salmonids by disrupting their essential behavioral patterns. Id. This SUMMARY JUDGMENT - No. :-CV-00-BHS

20 Case :-cv-00-bhs Document Filed // Page 0 of 0 0 harm and harassment is unauthorized take under the ESA. See 0 C.F.R..0; and see Knutsen Decl., p. ; and see supra, Sec. IV.E. B. DOI has Failed to Consult as Required Under Section (a)() of the ESA. DOI is in violation of section (a)() of the ESA for funding the hatchery programs without first consulting with NMFS and FWS regarding the effects these programs have on threatened Puget Sound salmonids. The consultation requirements of section (a)() of the ESA apply to any action authorized, funded, or carried out by a federal agency that may affect ESA-listed species. See U.S.C. (a)(); and 0 C.F.R. 0.(a)-(b); and Karuk Tribe of Cal. v. United States Forest Serv., F.d 00, 0 (th Cir. 0) (en banc). Such consultation is to occur before the agency engages in activities that may affect protected-species and is intended to ensure that the actions will not jeopardize listed species. Karuk Tribe, F.d at 00. Agency action, for purposes of section (a)() of the ESA, includes any action funded by a federal agency. Id.; 0 C.F.R. 0.0 (defining action ). DOI (which includes BIA and NPS) fund the Elwha Defendants hatchery programs. See supra, Sec. IV.C. The may affect standard sets a relatively low threshold consultation is required if the action may affect a protected species, regardless of whether the effect is beneficial, benign, adverse, or of an undefined character. Karuk Tribe, F.d at 0. Consultation is not required only for actions that will have no effect on listed-species. Id. The hatchery programs have severe adverse effects on threatened salmonids, and cause take of such protected species. See supra, Secs. IV.D and VI.A. Consultation is therefore required. DOI has not consulted with NMFS and FWS regarding the effects the hatchery programs have on threatened Puget Sound Chinook salmon, threatened Puget Sound steelhead, and SUMMARY JUDGMENT - 0 No. :-CV-00-BHS

21 Case :-cv-00-bhs Document Filed // Page of 0 0 threatened bull trout. See supra, Sec. IV.E. Accordingly, DOI is in violation of section (a)() of the ESA for funding these hatchery programs without first consulting. C. NMFS Biological Opinions are Arbitrary and Not in Accordance with Law. To the extent that Federal Defendants assert that the NMFS 00 BiOp or the NMFS 0 BiOp constitute ESA consultation for DOI s funding of the hatchery operations, those biological opinions are arbitrary and not in accordance with law. See Bennett, 0 U.S. at - (challenges to biological opinions are reviewed under the Administrative Procedure Act ( APA )); and see U.S.C. 0()(A). The NMFS 00 BiOp does not meet the ESA consultation requirements in regards to the hatchery operations. Biological opinions must evaluate the effects of the entire agency action under review, looking at all possible ramifications. Wild Fish Conservancy v. Salazar, F.d, (th Cir. 00); and see 0 C.F.R. 0.(h)() (a detailed discussion of the effects of the action on listed species is required). The NMFS 00 BiOp does not include any discussion whatsoever of the adverse effects of the hatchery programs. Knutsen Decl., pp. -. Further, if the action may cause take of protected species, an incidental take statement must be included that specifies the extent of take. 0 C.F.R. 0.(i)()(i). The incidental take statement in the NMFS 00 BiOp does not specify the extent of take caused by hatchery operations and does not even address take of steelhead. Knutsen Decl., pp. -. The NMFS 0 BiOp also does not comply with the ESA consultation requirements in regards to the hatchery programs. The document explicitly states that most of the hatchery Plaintiffs request the Court address this argument only if Federal Defendants assert that these biological opinions fulfill DOI s obligation to consult triggered by its funding of the hatchery programs. Plaintiffs reserve the right to challenge these biological opinions on additional grounds after Federal Defendants produce their supplemental administrative record. SUMMARY JUDGMENT - No. :-CV-00-BHS

22 Case :-cv-00-bhs Document Filed // Page of 0 0 programs are not part of the action reviewed. Id. at. The NMFS 0 BiOp therefore does not include the detailed discussion of the effects of the Elwha Defendants hatchery programs required, but instead includes only a generic ( in brief ) recitation of hatchery effects. Id. at - ; and see 0 C.F.R. 0.(h)(). Further, the incidental take statement does not specify the extent of take caused by hatchery operations (other than for broodstock collection activities) as required. Knutsen Decl., pp. -0; and see 0 C.F.R. 0.(i)()(i). The NMFS 00 BiOp and the NMFS 0 BiOp do not constitute ESA consultation for DOI s funding of the hatchery programs. However, to the extent that Federal Defendants assert otherwise, the biological opinions are, on their face, arbitrary and not in accordance with law. D. Plaintiffs Provided Pre-Suit Notice and the Violations are Ongoing. Plaintiffs provided the required pre-suit notice of their ESA citizen suit claims. Dkt. 0,, ; and see U.S.C. 0(g)()(A)(i). Further, the violations addressed herein were ongoing at the time the complaint was filed as required under the ESA citizen suit provision. See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., U.S., - (). Violations are ongoing if () they continued on or after the date the complaint was filed or () if, on the date the complaint was filed, there was a continuing likelihood of a recurrence in intermittent or sporadic violations. See Natural Res. Def. Council v. Southwest Marine, Inc., F.d, (th Cir. 000); and Save Our Bays & Beaches v. City & County of Honolulu, 0 F.Supp. 0, - (D. Haw. ) (relevant inquiry is whether the risk of defendant s continued violation had been Gwaltney involved the Clean Water Act ( CWA ) citizen suit provision. U.S. at. That provision is substantially similar to the ESA citizen suit provision. Compare U.S.C. (a)() and (b)()(a) with U.S.C. 0(g)()(A) and (g)()(a)(i). These provisions are therefore interpreted similarly. See Saint John s Organic Farm v. Gem County Mosquito Abatement Dist., F.d 0, 0- (th Cir. 00); and see Marbled Murrelet v. Babbitt, F.d 0, 0- (th Cir. ). SUMMARY JUDGMENT - No. :-CV-00-BHS

23 Case :-cv-00-bhs Document Filed // Page of 0 0 completely eradicated on the date the complaint was filed). Intermittent or sporadic violations do not cease to be ongoing until the date when there is no real likelihood of repetition. Southwest Marine, Inc., F.d at. The violations addressed herein are ongoing. The challenged hatchery programs and the take resulting therefrom have continued to occur since the complaint was filed. See supra, Sec. VI.A()-(). While Chambers Creek steelhead have not been released since the Complaint was filed, the likelihood of continued illegal releases continued after the complaint was filed and continues today. See Knutsen Decl., pp. -; id. at -. Similarly, DOI s failure to consult under section (a)() of the ESA has continued. E. Plaintiffs Have Standing. An association has organizational standing if at least one member has standing to sue in his or her own right, the interests at stake are germane to the organization s purpose, and neither the claim asserted nor the relief requested requires participation of the individual member. Citizens for Better Forestry v. U.S. Dep t of Agric., F.d, (th Cir. 00). Plaintiffs have at least one member that has standing in his own right ) a member that has suffered an injury in fact ; where ) the injury is fairly traceable to the challenged conduct; and ) it is not merely speculative that the injury will be redressed by a favorable decision. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., U.S., 0- (000). The injury in fact requirement is satisfied if an individual adequately shows an aesthetic or recreational interest in a particular place or animal and shows reasonable concerns that those interests are impaired by the defendant s conduct. Ecological Rights Found. v. Pac. The Court has jurisdiction is standing is established for one plaintiff. See Massachusetts v. Envtl. Prot. Agency, U.S., (00). SUMMARY JUDGMENT - No. :-CV-00-BHS

24 Case :-cv-00-bhs Document Filed // Page of 0 0 Lumber Co., 0 F.d,, (th Cir. 000); Friends of the Earth, U.S. at -. William McMillan is a member of Wild Fish Conservancy that regularly recreates in and around the Elwha River. First Decl. of William McMillan,, -. Mr. McMillan s use and enjoyment of the Elwha River watershed is injured by the violations addressed herein and by Mr. McMillan s reasonable concerns related thereto. Id. at -. The traceability requirement is satisfied because these injuries can be fairly traced to the challenged conduct. See Ecological Rights Found., 0 F.d at. The injuries are redressable by an order requiring compliance with the ESA. See Covington v. Jefferson County, F.d, (th Cir. 00). The conservation interests at issue in this motion are plainly germane to Plaintiffs purposes. First Decl. of Kurt Beardslee, -. Similarly, Plaintiffs objectives are plainly within the zone of interests Congress intended the ESA to protect and therefore satisfy prudential standing requirements. See Bennett, 0 U.S. at -. Finally, the claims at issue do not require Mr. McMillan s participation. VII. CONCLUSION. For the foregoing reasons, Plaintiffs respectfully request the Court enter an order granting summary judgment as described. SUMMARY JUDGMENT - No. :-CV-00-BHS

25 Case :-cv-00-bhs Document Filed // Page of 0 0 RESPECTFULLY SUBMITTED this th day of November, 0. SUMMARY JUDGMENT - No. :-CV-00-BHS By: s/ Brian A. Knutsen Brian A. Knutsen, WSBA # 0 Richard A. Smith, WSBA # Claire E. Tonry, WSBA # Elizabeth H. Zultoski, WSBA # Smith & Lowney, PLLC East John St., Seattle, WA Tel: (0) 0-; Fax: (0) 0- briank@igc.org; rasmithwa@igc.org; clairet@igc.org Attorneys for Plaintiffs Wild Fish Conservancy, Wild Steelhead Coalition, Federation of Fly Fishers Steelhead Committee, and Wild Salmon Rivers d/b/a Conservation Angler

26 Case :-cv-00-bhs Document Filed // Page of 0 0 SUMMARY JUDGMENT - No. :-CV-00-BHS CERTIFICATE OF SERVICE I hereby certify that on November, 0, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF System which will send notification of such filing to the attorneys of record. s/ Brian A. Knutsen Brian A. Knutsen, WSBA # 0 Attorney for Plaintiffs Smith & Lowney, PLLC E. John Street, Seattle, WA Tel: (0) 0-; Fax: (0) 0- briank@igc.org