Case 3:16-cv-00553 Document 1 Filed 03/31/16 Page 1 of 96 Brian A. Knutsen (OSB No. 112266) KAMPMEIER & KNUTSEN, PLLC 833 S.E. Main Street, No. 318 Portland, Oregon 97214 (503) 841-6515 brian@kampmeierknutsen.com David H. Becker (OSB No. 081507) Law Office of David H. Becker, LLC 833 S.E. Main Street, No. 302 Portland, Oregon 9714 (503) 388-9160 davebeckerlaw@gmail.com Attorneys for Plaintiff UNITED STATES DISTRICT COURT DISTICT OF OREGON PORTLAND DIVISION WILD FISH CONSERVANCY Case No.: 3:16-CV-00553 Plaintiff, v. NATIONAL MARINE FISHERIES SERVICE; EILEEN SOBECK, in her official capacity as Assistant Administrator for Fisheries of the National Marine Fisheries Service; UNITED STATES DEPARTMENT OF COMMERCE; and PENNY PRITZKER, in her official capacity as Secretary of the United States Department of Commerce, COMPLAINT [ENVIRONMENTAL MATTER] Defendants. COMPLAINT - 1 -
Case 3:16-cv-00553 Document 1 Filed 03/31/16 Page 2 of 96 INTRODUCTION 1. The National Marine Fisheries Service ( NMFS ) is charged with implementing the Endangered Species Act ( ESA ) to protect and recover threatened and endangered salmonids. Remarkably, NMFS itself has failed to comply with the ESA with respect to its own funding of extensive hatchery programs throughout the Columbia River basin under the Mitchell Act, 16 U.S.C. 755 56, which directs NMFS to perform activities necessary for the conservation of fish in the basin. 2. The first Commissioner for the United States Fish Commission, Spencer Baird, said that the use of hatcheries would make salmon so abundant that there would be no need to regulate harvest or protect habitat. He drew that conclusion before there was even the most basic understanding of the salmon s biology and ecology or any evidence that hatcheries were successful in replacing natural production systems. It was a myth so imbued with faith that salmon managers avoided any critical evaluation of it. Today, with salmon extinct in forty percent of their natural range and many of the remaining populations protected by the... [ESA], it is clear that hatcheries failed to meet the expectations that justified their initial acceptance. In the late 1960s, fishery scientists began looking into the possibility that hatcheries not only failed to achieve their goals, but that they were contributing to the decline in the productivity of natural, salmon-sustaining ecosystems. The evidence has been accumulating and today the weight of that evidence is clear: hatcheries are part of the salmon s problem. The myth that hatcheries are the solution to the problem of the salmon s declining abundance is still strong and it is a formidable impediment to the incorporation of our current scientific understandings of the effects of hatcheries into salmon management and recovery programs. James Lichatowich, former Assistant Chief of Fisheries for the Oregon Department of Fish and Wildlife, Declaration COMPLAINT - 2 -
Case 3:16-cv-00553 Document 1 Filed 03/31/16 Page 3 of 96 submitted in Wild Fish Conservancy v. National Park Service, W.D. Wash. No. 3:12-CV-05109- BHS, EFC No. 68 (Nov. 15, 2012). 3. The primary goal of the ESA s conservation mandate is to preserve the ability of natural populations [of species] to survive in the wild. Trout Unlimited v. Lohn, 559 F.3d 946, 957 (9th Cir. 2009). Nonetheless, tens of millions of hatchery fish are released every year into the Columbia River basin, swamping the wild salmonid populations that remain. Approximately 80% of the salmonids in the basin were born in hatcheries rather than in the wild. The hatchery-bred fish harm wild fish by competing for food and rearing habitat and by preying on the wild fish. Hatchery programs also harm wild populations through genetic interactions. Salmonids reared in a hatchery environment become less fit to survive and reproduce in the wild. Hatchery fish released en masse return as adults to interact genetically with wild fish, thereby introgressing their domesticated genes into the wild population and reducing wild productivity. NMFS funds many of the hatchery programs in the Columbia River basin under the Mitchell Act. 4. The ESA requires that all federal agencies consult with NMFS and the United States Fish and Wildlife Service ( FWS ) on the effects of any action they fund to ensure the action is not likely to jeopardize the continued existence of threatened or endangered species or result in the adverse modification or destruction of designated critical habitat. 16 U.S.C. 1536(a)(2). When NMFS disburses Mitchell Act funds for hatchery programs most of which are operated by the States Washington and Oregon NMFS acts as both the action agency funding the hatchery programs and a consulting agency evaluating the effects of the federallyfunded programs. NMFS consulted on some of the hatchery programs it funds under the Mitchell Act in 1999, concluding that those programs would jeopardize certain species if specified COMPLAINT - 3 -
Case 3:16-cv-00553 Document 1 Filed 03/31/16 Page 4 of 96 measures were not implemented. That same year, seven additional salmonid species in the Columbia River basin were listed under the ESA and two other fish species have since been listed. Critical habitat has been designated for almost all species throughout the basin. For the last seventeen years, NMFS has failed to consult on the effects to these threatened and endangered species from the massive hatchery programs it funds under the Mitchell Act, but has nonetheless continued issuing checks to keep the programs operating. NMFS the agency that is supposed to implement and enforce the ESA has thereby itself been in violation of the ESA for the last seventeen years. 5. Plaintiff Wild Fish Conservancy brings this action against Defendants for funding extensive hatchery programs throughout the Columbia River basin under the Mitchell Act without complying with the substantive and procedural requirements of section 7(a)(2) of the ESA. Wild Fish Conservancy seeks declaratory and injunctive relief requiring Defendants to comply with the ESA. JURISDICTION AND VENUE 6. This Court has jurisdiction under section 11(g) of the ESA, 16 U.S.C. 1540(g), and 28 U.S.C. 1331 (federal question). The requested relief is also proper under 28 U.S.C. 2201 (declaratory relief) and 28 U.S.C. 2202 (injunctive relief). As required by the ESA citizen suit provision, 16 U.S.C. 1540(g)(2)(A)(i), Wild Fish Conservancy provided notice of its intent to sue more than sixty days before filing this suit through a letter dated and postmarked January 13, 2016 ( Notice Letter ). A copy of the Notice Letter is attached as Exhibit 1 to this Complaint. COMPLAINT - 4 -
Case 3:16-cv-00553 Document 1 Filed 03/31/16 Page 5 of 96 7. Venue is proper in the Court under 28 U.S.C. 1391(e) and 16 U.S.C. 1540(g)(3)(A) because the violations alleged, and/or substantial parts of the events and omissions giving rise to the claims, occurred and are occurring within this District. PARTIES 8. Plaintiff Wild Fish Conservancy is a membership-based 501(c)(3) nonprofit organization incorporated in the State of Washington with its principal place of business in Duvall, Washington. Wild Fish Conservancy is dedicated to the preservation and recovery of the Northwest s native fish species and the ecosystems upon which those species depend. Wild Fish Conservancy brings this action on behalf of itself and its approximately 2,400 members. Wild Fish Conservancy changed its name from Washington Trout in 2007. As an environmental watchdog, Wild Fish Conservancy actively informs the public on matters affecting water quality, fish, and fish habitat in the Northwest through publications, commentary to the press, and sponsorship of educational programs. Wild Fish Conservancy also conducts field research on wild fish populations and has designed and implemented habitat restoration projects. Wild Fish Conservancy has lobbied, litigated, and publicly commented on federal and state actions that affect the region s native fish and ecosystems. Wild Fish Conservancy routinely seeks to compel government agencies to follow the laws designed to protect native fish species, particularly threatened and endangered species. 9. Wild Fish Conservancy s members regularly spend time in areas in and around the waters affected by the hatchery programs funded by Defendants under the Mitchell Act, including the Columbia River and its tributaries. Wild Fish Conservancy s members intend to continue to visit these areas on a regular basis, including in the coming months and beyond. COMPLAINT - 5 -
Case 3:16-cv-00553 Document 1 Filed 03/31/16 Page 6 of 96 These members observe, study, photograph, and appreciate wildlife and wildlife habitat in and around these waters. These members also fish, hike, camp, and swim in and around these waters. 10. Wild Fish Conservancy s members derive scientific, educational, recreational, health, conservation, spiritual, and aesthetic benefits from the Columbia River and its tributaries, from the surrounding areas, and from wild native fish species in those waters and from the existence of natural, wild and healthy ecosystems. 11. The past, present, and future enjoyment of Wild Fish Conservancy s interests and those of its members, including the recreational, aesthetic, spiritual, and scientific interests, have been, are being, and will continue to be harmed by Defendants failures to comply with the ESA as described herein and by the members reasonable concerns related to Defendants violations. These injuries include reduced enjoyment of time spent in and around the Columbia River and its tributaries, fewer visits to those areas than would otherwise occur, and refraining from engaging in certain activities while visiting these areas, such as fishing, than would otherwise occur. These injures also include an inability or unwillingness to fish for wild salmonids due to their depressed status. Wild Fish Conservancy is also injured by Defendants failure to comply with the ESA consultation requirements because Wild Fish Conservancy reviews documents produced in such consultations and utilizes the information provided therein to advance its objectives. Defendants ESA violations have deprived Wild Fish Conservancy of such information. 12. Wild Fish Conservancy s injuries and those of its members are actual, concrete and/or imminent, and are fairly traceable to Defendants violations of the ESA as described herein. The Court may remedy these violations by declaring that Defendants omissions and actions are illegal and issuing injunctive relief enjoining further violations and requiring that Defendants comply with their statutory obligations. Wild Fish Conservancy s members will COMPLAINT - 6 -
Case 3:16-cv-00553 Document 1 Filed 03/31/16 Page 7 of 96 benefit from increased enjoyment of time spent in and around the waters described above and/or will visit the areas more frequently if Defendants are required by the Court to comply with the ESA. 13. Defendant National Marine Fisheries Service is an agency of the United States within the United States Department of Commerce. NMFS disburses funds under the Mitchell Act for hatchery programs throughout the Columbia River basin. 14. Defendant Eileen Sobeck is the Assistant Administrator for Fisheries at NMFS and is sued in that official capacity. Assistant Administrator Sobeck is responsible for ensuring that NMFS complies with the ESA with respect to its funding under the Mitchell Act. 15. Defendant United States Department of Commerce is an agency of the United States, of which NMFS is a sub-agency. The Mitchell Act authorizes and directs the Secretary of the United States Department of Commerce to implement its provisions. 16. Defendant Penny Pritzker is the Secretary of the United States Department of Commerce and is sued in that official capacity. Secretary Pritzker is responsible for ensuring that the United States Department of Commerce and NMFS comply with the ESA with respect to their funding under the Mitchell Act. The Mitchell Act authorizes and directs the Secretary of the United States Department of Commerce to implement its provisions. THE ENDANGERED SPECIES ACT 17. The ESA is a federal statute enacted to provide a program to conserve threatened and endangered species and to protect the ecosystems upon which those species depend. 16 U.S.C. 1531(b). Conserve, as used is in the ESA, means to use all methods and procedures necessary to bring threatened and endangered species to a point where the protections afforded by the statute are no longer necessary. 16 U.S.C. 1532(3). COMPLAINT - 7 -
Case 3:16-cv-00553 Document 1 Filed 03/31/16 Page 8 of 96 18. The ESA assigns certain implementation responsibilities to the Secretaries of the United States Department of the Interior and the United States Department of Commerce, which have delegated these duties to FWS and NMFS, respectively. 19. Section 4 of the ESA requires NMFS and FWS to determine whether species are threatened or endangered of extinction and to list species as such under the statute. 16 U.S.C. 1533(a)(1) and (c)(1). Such a listing triggers various protective measures intended to conserve the species, including the designation of critical habitat and the preparation of a recovery plan. 16 U.S.C. 1533(a)(3) and (f). 20. Section 9 of the ESA makes it unlawful for any person to take species listed under the statute as endangered. 16 U.S.C. 1538(a)(1). The take prohibition has been applied to certain species listed as threatened under the statute though regulations promulgated by NMFS and FWS under section 4(d) of the ESA, 16 U.S.C. 1533(d). 50 C.F.R. 223.102(c)(25); 50 C.F.R. 223.203(a); 50 C.F.R. 17.21; 50 C.F.R. 17.31(a). Section 9 of the ESA prohibits a violation of those regulations. 16 U.S.C. 1538(a)(1)(G). Section 9 of the ESA also makes it unlawful to solicit another to commit or cause to be committed a violation of that section of the statute. 16 U.S.C. 1538(g). 21. Take is defined broadly under the ESA to include harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. 16 U.S.C. 1532(19). 22. Harass is defined by FWS to include an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering. 50 C.F.R. 17.3. NMFS defines harass to include an intentional or COMPLAINT - 8 -
Case 3:16-cv-00553 Document 1 Filed 03/31/16 Page 9 of 96 negligent action that has the potential to injure an animal or disrupt its normal behaviors to a point where such behaviors are abandoned or significantly altered. 23. Harm is defined to include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering. 50 C.F.R. 17.3; 50 C.F.R 222.102. 24. Section 7 of the ESA imposes a substantive obligation on 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 or threatened species or result in the destruction or adverse modification of habitat that has been designated as critical for such species. See 16 U.S.C. 1536(a)(2) (emphasis added); Pyramid Lake Paiute Tribe of Indians v. U.S. Dep t of the Navy, 898 F.2d 1410, 1415 (9th Cir. 1990). 25. Such jeopardy results where an action reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species. 50 C.F.R. 402.02. 26. Destruction or adverse modification of critical habitat occurs where there is a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. 50 C.F.R. 402.02. 27. In fulfilling the substantive mandates of section 7 of the ESA, a federal agency planning to fund an action that may affect ESA-listed species or their critical habitat (the action agency ) is required to consult with NMFS and/or FWS (the consulting agencies ) regarding the effects of the proposed action. 50 C.F.R. 402.14(a). Such consultation concludes with NMFS and/or FWS issuance of a biological opinion ( BiOp ) determining whether the COMPLAINT - 9 -
Case 3:16-cv-00553 Document 1 Filed 03/31/16 Page 10 of 96 action is likely to jeopardize ESA-protected species or result in adverse modification of critical habitat. 50 C.F.R. 402.14(h)(3). 28. The action agencies are prohibited from making any irreversible or irretrievable commitment of resources with respect to the action that would have the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures until such consultation is completed. 16 U.S.C. 1536(d). 29. The BiOp must include a detailed discussion of the effects of the action on listed species and the consulting agency s opinion on whether the action is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat. 50 C.F.R. 402.14(h)(2) (3). If such jeopardy is likely to occur, the BiOp will include any available reasonable and prudent alternatives. 50 C.F.R. 402.14(h)(3). Reasonable and prudent alternatives are those that can be implemented consistent with the intended purpose of the action and within the action agency s authority, that are economically and technically feasible, and that the consulting agency believes will avoid jeopardy. 50 C.F.R. 402.02. 30. If NMFS and/or FWS conclude that jeopardy is not likely or that reasonable and prudent alternatives are available, an incidental take statement ( ITS ) is issued with the BiOp specifying conditions under which take of listed species incidental to the proposed action may occur. 50 C.F.R. 401.14(i)(1); 16 U.S.C. 1536(b)(4); Aluminum Co. of Am. v. Adm r, Bonneville Power Admin., 175 F.3d 1156, 1159 (9th Cir. 1999). The ITS functions as a permit exempting from liability take resulting from the action to the extent that those covered thereby fully comply with the terms and conditions of the ITS. See 16 U.S.C. 1536(o)(2); and 50 C.F.R. 402.14(i)(5); and Ariz. Cattle Growers Ass n v. U.S. Fish & Wildlife Serv., 273 F.3d 1229, 1239 (9th Cir. 2001). COMPLAINT - 10 -
Case 3:16-cv-00553 Document 1 Filed 03/31/16 Page 11 of 96 31. The ITS must [s]pecif[y] the impact, i.e., the amount or extent, of such incidental taking of the species. 50 C.F.R. 402.14(i)(1)(i). This acts as a trigger that, when reached, results in an unacceptable level of incidental take, invalidates that safe harbor provided by the ITS, and requires reinitiation of formal consultation. Ariz. Cattle Growers Ass n v. U.S. Fish & Wildlife Serv., 273 F.3d 1229, 1249 (9th Cir. 2001); 50 C.F.R. 402.14(i)(4). The ITS must include monitoring and reporting requirements sufficient to monitor the amount of take resulting from the action against trigger. Wild Fish Conservancy v. Salazar, 628 F.3d 513, 531 32 (9th 2010). An ITS also includes any reasonable and prudent measures the consulting agency considers necessary or appropriate to minimize such impact. 50 C.F.R. 402.14(i)(1)(ii). 32. After a BiOp is issued, federal agencies have a continuing duty under section 7 of the ESA to insure that their actions will not jeopardize the continued existence of listed species or adversely modify designated critical habitat. An agency must re-initiate consultation whenever the amount or extent of taking specified in the incidental take statement is exceeded, new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered, where the action in question is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion, or where a new species is listed or critical habitat designated that may be affected by the identified action. 50 C.F.R. 402.16(a)-(d). FACTUAL BACKGOUND I. The Threatened and Endangered Fish Species of the Columbia River Basin. 33. The Upper Columbia River spring-run Chinook salmon evolutionary significant unit ( ESU ) was listed as an endangered species under the ESA in 1999. 64 Fed. Reg. 14,308 (March 24, 1999); and see 70 Fed. Reg. 37,160 (June 28, 2005); and 79 Fed. Reg. 20,802 (April COMPLAINT - 11 -
Case 3:16-cv-00553 Document 1 Filed 03/31/16 Page 12 of 96 14, 2014); 50 C.F.R. 224.101(a). Critical habitat has been designated for this species. 70 Fed. Reg. 52,630 (Sept. 2, 2005). 34. The Snake River spring/summer-run Chinook salmon ESU was listed as a threatened species in 1992. 57 Fed. Reg. 34,639 (April 22, 1992); see also 70 Fed. Reg. 37,160 (June 28, 2005); and 79 Fed. Reg. 20,802 (April 14, 2014). Critical habitat has been designated for this species. 64 Fed. Reg. 57,399 (Oct. 25, 1999). 35. The Snake River fall-run Chinook salmon ESU was listed as a threatened species in 1992. 57 Fed. Reg. 14,653 (April 22, 1992); see also 70 Fed. Reg. 37,160 (June 28, 2005); and 79 Fed. Reg. 20,802 (April 14, 2014). Critical habitat has been designated for this species. 58 Fed. Reg. 68,543 (Dec. 28, 1993). 36. The Lower Columbia River Chinook salmon ESU was listed as a threatened species in 1999. 64 Fed. Reg. 14,308 (March 24, 1999); see also 70 Fed. Reg. 37,160 (June 28, 2005); and 79 Fed. Reg. 20,802 (April 14, 2014). Critical habitat has been designated for this species. 70 Fed. Reg. 52,630 (Sept. 2, 2005). 37. The Upper Willamette River Chinook salmon ESU was listed as a threatened species in 1999. 64 Fed. Reg. 14,308 (March 24, 1999); see also 70 Fed. 37,160 (June 28, 2005); and 79 Fed. Reg. 20,802 (April 14, 2014). Critical habitat has been designated for this species. 70 Fed. Reg. 52,630 (Sept. 2, 2005). 38. The Lower Columbia River coho salmon ESU was listed as a threatened species in 2005. 70 Fed. Reg. 37,160 (June 28, 2005); see also 79 Fed. Reg. 20,802 (April 14, 2014). 39. The Columbia River chum salmon ESU was listed as a threatened species in 1999. 64 Fed. Reg. 14,508 (March 25, 1999); see also 70 Fed. Reg. 37,160 (June 28, 2005); and COMPLAINT - 12 -
Case 3:16-cv-00553 Document 1 Filed 03/31/16 Page 13 of 96 79 Fed. Reg. 20,802 (April 14, 2014). Critical habitat has been designated for this species. 70 Fed. Reg. 52,630 (Sept. 2, 2005). 40. The Snake River sockeye salmon ESU was listed as an endangered species under the ESA in 1991. 56 Fed. Reg. 58,619 (Nov. 20, 1991); see also 70 Fed. Reg. 37,160 (June 28, 2005); and 79 Fed. Reg. 20,802 (April 14, 2014). Critical habitat has been designated for this species. 58 Fed. Reg. 68,543 (Dec. 28, 1993). 41. The Upper Columbia River distinct population segment ( DPS ) of steelhead was first listed as an endangered species under the ESA in 1997. 63 Fed. Reg. 43,937 (Aug. 18, 1997). The species is currently listed as a threatened species under the ESA. 71 Fed. Reg. 834 (Jan. 5, 2006); 74 Fed. Reg. 42,605 (Aug. 24, 2009); 79 Fed. Reg. 20,802 (April 14, 2014); 50 C.F.R. 223.102(c)(25). Critical habitat has been designated for the Upper Columbia River steelhead. 70 Fed. Reg. 52,630 (Sept. 2, 2005); 50 C.F.R. 226.212. 42. The Snake River Basin steelhead DPS was listed as a threatened species in 1997. 62 Fed. Reg. 43,937 (Aug. 18, 1997); see also 71 Fed. Reg. 834 (Jan. 5, 2006); and 79 Fed. Reg. 20,802 (April 14, 2014). Critical habitat has been designated for this species. 70 Fed. Reg. 52,630 (Sept. 2, 2005). 43. The Middle Columbia River steelhead DPS was listed as a threatened species in 1999. 64 Fed. Reg. 14,517 (March 25, 1999); see also 71 Fed. Reg. 834 (Jan. 5, 2005); and 79 Fed. Reg. 20,802 (April 14, 2014). Critical habitat has been designated for this species. 70 Fed. Reg. 52,630 (Sept. 2, 2005). 44. The Upper Willamette River steelhead DPS was listed as a threatened species in 1999. 64 Fed. Reg. 14,517 (March 25, 1999); see also 71 Fed. Reg. 834 (Jan. 5, 2006); and 79 COMPLAINT - 13 -
Case 3:16-cv-00553 Document 1 Filed 03/31/16 Page 14 of 96 Fed. Reg. 20,802 (April 14, 2014). Critical habitat has been designated for this species. 70 Fed. Reg. 52,630 (Sept. 2, 2005). 45. The Lower Columbia River steelhead DPS was listed as a threatened species in 1998. 63 Fed. Reg. 13,347 (March 19, 1998); see also 71 Fed. Reg. 834 (Jan. 5, 2006); and 79 Fed. Reg. 20,802 (April 14, 2014). Critical habitat has been designated for this species. 70 Fed. Reg. 52,630 (Sept. 2, 2005). 46. The southern DPS of the Pacific Eulachon was listed as a threatened species in 2010. 75 Fed. Reg. 13,012 (Mar. 17, 2010). Critical habitat has been designated for this species. 76 Fed. Reg. 65,324 (October 20, 2011). 47. The coterminous United States population of bull trout (Salvelinus confluentus) was listed as threatened under the ESA in 1999. 64 Fed. Reg. 58,910 (November 1, 1999). The bull trout was initially listed as three separate DPSs, which were later consolidated (along with two other population segments) into one listed taxon. FWS has designated critical habitat for bull trout. 75 Fed. Reg. 63,898 (Nov. 17, 2010). II. NMFS Funding of Hatchery Programs under the Mitchell Act. 48. Congress enacted the Mitchell Act on May 11, 1938, in an effort to mitigate adverse effects to salmonids in the Columbia River Basin resulting from the construction of dams, water diversions, logging, and pollution. 49. The Mitchell Act includes the following authorization: The Secretary of Commerce is authorized and directed to establish one or more salmon-cultural stations in the Columbia River Basin in each of the States of Oregon, Washington, and Idaho. *** *** *** *** *** *** COMPLAINT - 14 -
Case 3:16-cv-00553 Document 1 Filed 03/31/16 Page 15 of 96 The Secretary of Commerce is further authorized and directed to perform all other activities necessary for the conservation of fish in the Columbia River Basin in accordance with law. 16 U.S.C. 755 56. Congress has appropriated funds under the Mitchell Act on an annual basis since 1946, including during the last six years. 50. Defendants distribute funds appropriated under the Mitchell Act that Congress has allocated to hatchery programs. 51. Mitchell Act funding of hatchery programs ranged from $12 to $22 million per year between 2003 and 2012. These funds have been used to support around 62 hatchery programs that produce approximately 63 million fish annually in the Columbia River basin. 52. Mitchell Act funds are used for operational elements needed to run the facilities and programs and for maintenance of hatchery facilities and associated equipment. 53. Appendix A to the Notice Letter, attached to this Complaint as Exhibit 1, is a table that summarizes the hatchery programs funded by Defendants under the Mitchell Act based upon publically available information namely, NMFS 2014 Final Environmental Impact Statement to Inform Columbia River Basin Hatchery Operations and Funding of Mitchell Act Hatchery Programs. The Notice Letter alleged that Defendants violated requirements of section 7 of the ESA with respect to the hatchery programs Defendants funded during the last six years. III. Adverse Effects of Hatchery Programs Funded Under the Mitchell Act. 54. The hatchery programs funded by Defendants under the Mitchell Act adversely affect the ESA-listed species and critical habitat identified above through a variety of mechanisms. NMFS has summarized some of the adverse impacts to these ESA-listed species and their critical habitat in the following document: Effects of Hatchery Programs on Salmon and Steelhead Populations: Reference Document for NMFS ESA Hatchery Consultations (March COMPLAINT - 15 -
Case 3:16-cv-00553 Document 1 Filed 03/31/16 Page 16 of 96 7, 2011) ( Hatchery Effects Document ). Appendix B to the Notice Letter, attached to this Complaint as Exhibit 1, is a copy of the Hatchery Effects Document. NMFS organizes the adverse impacts into six categories: facility effects, fish removal, genetics, ecological interactions, harvest, and monitoring and evaluation. 55. NMFS describes facility effects as impacts arising from the physical existence and basic operation of the hatchery, including specific fish culture impacts. There are three subcategories: general facility failure, water intake, and structures. 56. Fish removal impacts are those to the target population and non target population caused by removal of fish for culture, usually adults for broodstock but can be juveniles or eggs. Broodstock collection can affect listed salmonids through the method of collection and by the removal of adults from the spawning population. 57. Adverse genetic effects result in losses of fitness and decreases in diversity caused by genetic mechanisms. NMFS explains that a defining characteristic of anadromous salmonids is their high fidelity to their natal streams. Their ability to home with great accuracy and maintain high fidelity to natal streams has encouraged the development of locally adapted genetic characteristics that allow the fish to use specific habitats. The genetic risks that artificial propagation pose to naturally produced populations can be separated into reductions or changes in the genetic variability (diversity) among and within populations (Hard et al. 1992; Cuenco et al. 1993; NRC 1996; Waples and Drake 2004). [NMFS] consider[s] three types of effects: loss of within-population diversity, outbreeding effects, and domestication selection. In most cases, genetic change is caused by the hatchery environment or by management of the hatchery program, and does not become an issue until mating occurs between hatchery-origin and naturalorigin fish, either of the same or different populations. COMPLAINT - 16 -
Case 3:16-cv-00553 Document 1 Filed 03/31/16 Page 17 of 96 58. NMFS defines ecological effects as losses due to ecological interactions between hatchery-origin and natural origin fish. Ecological interactions include disease, competition (density-dependence), predation, and marine derived nutrients. 59. Harvest effects include [m]ortalities to target and nontarget populations due to harvest fisheries managed for, or directed at, the harvest of hatchery-origin fish. NMFS explains that such effects have been identified as one of the primary factors leading to the decline of many naturally produced salmonid stocks (Flagg et al. 1995; Myers et al. 1998). 60. Monitoring and evaluation effects are those occurring as a result of efforts to monitor and evaluate the effects and/or success of a hatchery programs. NMFS explains that these efforts can have potential adverse impacts on listed fish in the hatchery though injuries incurred during sampling and marking. Sampling within the hatchery can include direct mortalities (e.g., genetic analysis, disease pathology, smolt condition) and indirect take (e.g. sorting, marking, transfers). IV. NMFS Outdated Efforts to Consult on the Effects of Mitchell Act Hatcheries. 61. NMFS has consulted on the effects of some of the hatchery programs funded by Defendants under the Mitchell Act. However, those consultations have expired, been superseded, or are grossly outdated and do not address most of the threatened and endangered species affected. 62. NMFS issued a BiOp in 1994 consulting on the effects of some hatchery programs funded by Defendants under the Mitchell Act. NMFS indicated then that, [b]ecause of legitimate concerns over carrying capacity of the river, estuary, and ocean, and genetic and ecological interactions between hatchery and wild salmon, allowing hatchery production beyond 1994 is not appropriate at this time. The BiOp thus addressed 1994 hatchery actions only. The COMPLAINT - 17 -
Case 3:16-cv-00553 Document 1 Filed 03/31/16 Page 18 of 96 BiOp address effects only to the three then-listed species Snake River spring/summer-run Chinook salmon, Snake River fall-run Chinook salmon, and Snake River sockeye salmon. 63. NMFS issued a BiOp dated April 5, 1995, that consulted on the effects of some of the hatchery programs funded by Defendants under the Mitchell Act. That BiOp addressed the effects of those hatchery operations from 1995 through 1998 only. 64. NMFS 1995 BiOp concluded that the hatchery programs are likely to jeopardize the continued existence of the three ESA-listed species addresses therein Snake River spring/summer-run Chinook salmon, Snake River fall-run Chinook salmon, and Snake River sockeye salmon. The BiOp included reasonable and prudent alternatives deemed by NMFS as necessary to aovid such jeopardy. 65. NMFS issued a BiOp dated March 29, 1999, that consulted on the effects of some of the hatchery programs funded by Defendants under the Mitchell Act. That BiOp addressed certain hatchery programs that collected, reared, and released species that were not listed under the ESA at the time. 66. The 1999 BiOp consulted on effects to five ESA-listed species Snake River spring/summer-run Chinook salmon, Snake River fall-run Chinook salmon, Snake River sockeye salmon, Snake River steelhead, and Upper Columbia River steelhead. The 1999 BiOp did not consult on effects to any other species, including the six salmonid species in the Columbia River basin that NMFS listed as threatened or endangered under the ESA in 1999. The 1999 BiOp did not specify the time period that it covered. 67. NMFS concluded in its 1999 BiOp that the Columbia River basin hatchery programs addressed therein are likely to jeopardize the continued existence of Snake River steelhead and Lower Columbia River steelhead. The BiOp included reasonable and prudent COMPLAINT - 18 -
Case 3:16-cv-00553 Document 1 Filed 03/31/16 Page 19 of 96 alternatives that NMFS deemed necessary to avoid such jeopardy, including reductions and restrictions of certain releases of non-endemic steelhead hatchery fish and phasing out and eliminating the use of non-endemic hatchery steelhead stocks for certain hatchery programs. 68. NMFS issued a letter dated July 27, 1999, requesting reinitiation of the consultation that resulted in the March 29, 1999, BiOp. The reinitiation was intended to analyze effects to six salmonid species listed by NMFS as threatened or endangered in 1999. NMFS indicated that, instead of issuing another basin-wide BiOp, it would prepare separate BiOps for five geographic areas within the Columbia River basin. Those BiOps were never prepared. 69. NMFS has completed consultations under section 7 of the ESA for only a few of the approximately 62 hatchery programs that Defendants fund under the Mitchell Act since the March 29, 1999 BiOp. 70. NMFS issued a BiOp dated November 27, 2007, titled Endangered Species Act Section 7 Consultation Biological Opinion on USFWS Artificial Propagation Programs in the Lower Columbia and Middle Columbia River (2007). That BiOp consulted on the effects from nine hatchery programs operated by FWS, including some funded by Defendants under the Mitchell Act. That BiOp did not specify the time period that it covered. 71. NMFS completed a BiOp for four hatchery programs located on the Sandy River in Oregon in 2012, which was superseded by a 2014 BiOp titled Endangered Species Act Section 7(a)(2) Biological Opinion for Sandy River Spring Chinook Salmon, Coho Salmon, Winter Steelhead, and Summer Steelhead (2014). The BiOp did not specify the time period that it covered, but assumed that Mitchell Act funding for these programs would continue indefinitely at historical levels. COMPLAINT - 19 -
Case 3:16-cv-00553 Document 1 Filed 03/31/16 Page 20 of 96 72. NMFS has not issue any BiOps consulting on the effects of the hatchery programs funded by Defendants under the Mitchell Act since NMFS March 29, 1999, BiOp, other than the two BiOps identified in paragraphs 70 and 71 of this Complaint. To the extent any such BiOps have been issued, those BiOps consulted only on harvest effects, and not ecological, genetic, and facility effects from the hatchery programs. 73. FWS has not issued any BiOps consulting on the effects of the hatchery programs funded by Defendants under the Mitchell Act. CAUSES OF ACTION 74. The funding subject to the following Causes of Action and Requests for Relief includes each and every distribution of funds by Defendants under the Mitchell Act for operations, maintenance, improvements, and/or upgrades of hatchery programs and/or facilities made during the last six years and sixty days and any future distributions. This includes all distributions for hatchery programs under the Mitchell Act, regardless of whether the hatchery program is identified in Appendix A to the Notice Letter, attached hereto as Exhibit 1. Excluded from the following Causes of Action and Requests for Relief are any disbursements for the hatchery programs addressed in the two BiOps identified in paragraphs 70 and 71 of this Complaint. I. First Cause of Action: Defendants Violations of the ESA for Funding Hatchery Programs without Consulting or Reinitiating Consultation with NMFS. 75. Wild Fish Conservancy realleges and incorporates by reference each and every allegation set forth above. 76. The hatchery programs funded by Defendants under the Mitchell Act may affect the ESA-listed species and designated critical habitat described in paragraphs 33 through 46 of this Complaint. Section 7(a)(2) of the ESA therefore requires that Defendants consult with COMPLAINT - 20 -
Case 3:16-cv-00553 Document 1 Filed 03/31/16 Page 21 of 96 NMFS on the effects the federally-funded hatchery programs have on those ESA-listed species and critical habitat. 77. Defendants have violated the consultation requirements of the ESA by funding hatchery programs under the Mitchell Act without consulting and/or reinitiating consultation with NMFS on the effects these federally-funded hatchery programs have on the ESA-listed species and critical habitat described in paragraphs 33 through 46 of this Complaint. 78. Defendants have never consulted with NMFS for some of the hatchery programs they fund under the Mitchell Act. For all others, including those addressed by NMFS March 29, 1999, BiOp, Defendants have failed to reinitiate consultation with NMFS despite numerous occurrences triggering the duty to reinitiate consultation. 79. Most significantly, NMFS has listed the following species as threatened or endangered under the ESA that were not addressed in the consultation that resulted in NMFS March 29, 1999, BiOp: (1) the Upper Columbia River spring-run Chinook salmon ESU listed as an endangered species in 1999; (2) the Lower Columbia River Chinook salmon ESU listed as a threatened species in 1999; (3) the Upper Willamette River Chinook salmon ESU listed as a threatened species in 1999; (4) the Lower Columbia River coho salmon ESU listed as a threatened species in 2005; (5) the Columbia River chum salmon ESU listed as a threatened species in 1999; (6) the Middle Columbia River steelhead DPS listed as a threatened species in 1999; (7) the Upper Willamette River steelhead DPS listed as a threatened species in 1999; (8) and the southern DPS of the Pacific Eulachon listed as a threatened species in 2010. NMFS has also designated critical habitat for each of these species except for the Lower Columbia River coho salmon ESU since the March 29, 1999, BiOp, and has re-designated critical habitat for other affected species. The listing of these species most of which occurred seventeen years COMPLAINT - 21 -
Case 3:16-cv-00553 Document 1 Filed 03/31/16 Page 22 of 96 ago and these designations of critical habitat triggered an obligation to reinitiate consultation with NMFS. 50 C.F.R. 402.16(d). 80. New information has become available since prior consultation with NMFS that reveals effects from the hatchery programs to the ESA-listed species and their critical habitat that also requires the reinitiation of consultation. See 50 C.F.R. 402.16(b). For example, the Hatchery Scientific Review Group ( HSRG ) has completed reviews of hatchery programs throughout the Pacific Northwest, including the Columbia River Hatchery Reform System-Wide Report (Feb. 2009). The HSRG is an independent scientific panel established and funded by Congress to assemble, organize, and apply the best available scientific information and to provide guidance to policymakers and technical staff involved in hatchery reform. The HSRG has provided extensive recommendations on how to manage hatchery programs, including programs funded by Defendants under the Mitchell Act, consistent with the survival and recovery of native wild salmonid populations. 81. The Independent Scientific Advisory Board ( ISAB ) has issued various reports and recommendations, including its Review of Salmon and Steelhead Supplementation (June 4, 2003). The ISAB is an independent science advisory board empaneled to evaluate and advise NMFS and the Northwest Power and Conservation Council on fish and wildlife programs. The ISAB s 2003 report reviewed the risks and benefits of hatchery supplementation programs and provided several conclusions and recommendations that warrant reinitiate of consultation with NMFS. See 50 C.F.R. 402.16(b). 82. The Recovery Science Review Panel ( RSRP ) was convened by NMFS to guide the scientific and technical aspects of recovery planning for listed salmon and steelhead species throughout the West Coast. The RSRP has provided guidance and recommendations related to COMPLAINT - 22 -
Case 3:16-cv-00553 Document 1 Filed 03/31/16 Page 23 of 96 hatchery programs since consultation with NMFS on hatchery programs funded by Defendants under the Mitchell Act, including those described in its Report for the Meeting Held July 21 23, 2003, at NMFS Northwest Fisheries Science Center, and in its Report for Meeting Held August 30 September 2, 2004, also at NMFS Northwest Fisheries Science Center. These efforts have provided new information that warrants reinitiation of consultation with NMFS. See 50 C.F.R. 402.16(b). 83. There have been numerous scientific studies and articles on the impacts of hatchery programs on wild salmonid populations since consultation with NMFS on hatchery programs funded by Defendants under the Mitchell Act. E.g., Myers, et al., Hatcheries and Endangered Salmon, Science, Vol. 303, No. 5666, p. 1980 (2004). The articles require the reinitiation of consultation. See 50 C.F.R. 402.16(b). 84. Defendants are also required to reinitiate consultation with NMFS because, upon information and belief, the amount of take anticipated in NMFS March 29, 1999, BiOp and ITS has been exceeded. See 50 C.F.R. 402.16(a). The ITS was premised upon the implementation of reasonable and prudent alternatives to the proposed action necessary to avoid jeopardizing the continued existence of the Snake River steelhead DPS and the Lower Columbia River steelhead DPS. Those measures required reducing, restricting, and eventually eliminating releases of nonendemic hatchery steelhead in several rivers. Upon information and belief, those reasonable and prudent alternatives were not timely implemented. 85. Defendants are in violation of section 7(a)(2) of the ESA, 16 U.S.C. 1536(a)(2), and/or 50 C.F.R. 402.16, for funding hatchery programs under the Mitchell Act without consulting and/or reinitiating consultation with NMFS on the effects of those federally-funded COMPLAINT - 23 -
Case 3:16-cv-00553 Document 1 Filed 03/31/16 Page 24 of 96 programs on the ESA-listed species and critical habitat described in paragraphs 33 through 46 of this Complaint. 86. These violations of the ESA are reviewable under section 11(g) of the ESA, 16 U.S.C. 1540(g). II. Second Cause of Action: Defendants Violations of the ESA for Funding Hatchery Programs without Consulting or Reinitiating Consultation with FWS. 87. Wild Fish Conservancy realleges and incorporates by reference each and every allegation set forth above. 88. The hatchery programs funded by Defendants under the Mitchell Act may affect ESA-listed bull trout and its critical habitat described in paragraph 47 of this Complaint. Section 7(a)(2) of the ESA therefore requires that Defendants consult with FWS on the effects the federally-funded hatchery programs have on threatened bull trout and its critical habitat.. 89. Defendants have never consulted with FWS on the effects to bull trout and bull trout critical habitat resulting from the hatchery programs they fund under the Mitchell Act. To the extent Defendants have consulted with FWS on any of these federally-funded hatchery programs, Defendants were required to reinitiate such consultation due to the designation and redesignation of critical habitat for bull trout in 2005 and 2010, respectively, and because of the reports, recommendations, and articles described in paragraphs 80 through 83 of this Complaint. 90. Defendants are in violation of section 7(a)(2) of the ESA, 16 U.S.C. 1536(a)(2), and/or 50 C.F.R. 402.16, for funding hatchery programs under the Mitchell Act without consulting and/or reinitiating consultation with FWS on the effects of those federally-funded programs on ESA-listed bull trout and its critical habitat described in paragraph 47 of this Complaint. COMPLAINT - 24 -
Case 3:16-cv-00553 Document 1 Filed 03/31/16 Page 25 of 96 91. These violations of the ESA are reviewable under section 11(g) of the ESA, 16 U.S.C. 1540(g) III. Third Cause of Action: Defendants Violations of the ESA by Committing Resources prior to Completion of Consultation with NMFS and FWS. 92. Wild Fish Conservancy realleges and incorporates by reference each and every allegation set forth above. 93. Defendants disbursements of funds and/or commitments to disburse funds under the Mitchell Act constitute irreversible and/or irretrievable commitments of resources. 94. Defendants are in violation of section 7(d) of the ESA, 16 U.S.C. 1536(d), for making irreversible and/or irretrievable commitments of resources prior to completion of consultation with NMFS and/or FWS on the effects to the ESA-listed species and critical habitat described in paragraphs 33 through 47 of this Complaint resulting from the hatchery programs funded by Defendants under the Mitchell Act. These violations include any disbursements or commitments of funds that occurred or that will occur after initiation or reinitiation of consultation with NMFS and/or FWS but before completion of such consultation. 95. These violations of the ESA by Defendants are reviewable under section 11(g) of the ESA, 16 U.S.C. 1540(g). IV. Fourth Cause of Action: Defendants Violations of the ESA for Funding Hatchery Programs without Insuring the Programs do not Jeopardize ESA-Listed Species. 96. Wild Fish Conservancy realleges and incorporates by reference each and every allegation set forth above. 97. Defendants are in violation of section 7(a)(2) of the ESA, 16 U.S.C. 1536(a)(2), for funding hatchery programs under the Mitchell Act without insuring that such programs are not likely to jeopardize the continued existence of the ESA-listed species or result in the COMPLAINT - 25 -
Case 3:16-cv-00553 Document 1 Filed 03/31/16 Page 26 of 96 destruction or adverse modification of the critical habitat described in paragraphs 33 through 47 of this Complaint. 98. These programs release tens of millions of hatchery fish into the Columbia River basin every year, causing unknown levels of harm to threatened and endangered species through the various mechanisms described herein. 99. NMFS determined in the March 29, 1999, BiOp that the hatchery programs evaluated therein are likely to jeopardize the continued existence of the Snake River steelhead DPS and the Lower Columbia River steelhead DPS. NMFS therefore included reasonable and prudent alternatives to avoid jeopardizing these species, which, upon information and belief, were not timely implemented. NMFS has since listed several additional species in the Columbia River basin as threatened or endangered under the ESA, including two steelhead DPS, that were not addressed in the 1999 BiOp. 100. Defendants have failed to insure that the hatchery programs they fund under the Mitchell Act are not likely to jeopardize ESA-listed species or adversely modify critical habitat by failing to comply with the consultation requirements of section 7 of the ESA as described herein. 101. These violations of the ESA by Defendants are reviewable under section 11(g) of the ESA, 16 U.S.C. 1540(g). REQUESTS FOR RELIEF WHEREFORE, Wild Fish Conservancy respectfully requests the Court grant the following relief: A. Issue a declaratory judgment declaring that Defendants have violated the consultation requirements of section 7(a)(2) the ESA, 16 U.S.C. 1536(a)(2), and/or 50 C.F.R. COMPLAINT - 26 -
Case 3:16-cv-00553 Document 1 Filed 03/31/16 Page 27 of 96 402.16, by funding hatchery programs under the Mitchell Act without consulting and/or reinitiating consultation with NMFS and/or FWS on the effects of those federally-funded programs to ESA-listed species and designated critical habitat. B. Issue a declaratory judgment declaring that Defendants have violated section 7(d) of the ESA, 16 U.S.C. 1536(d), by making irreversible and/or irretrievable commitments of resources prior to completion of consultation with NMFS and/or FWS on the effects to the ESAlisted species and critical habitat resulting from hatchery programs funded under the Mitchell Act. C. Issue a declaratory judgment declaring that Defendants are in violation of section 7(a)(2) of the ESA, 16 U.S.C. 1536(a)(2), for funding hatchery programs under the Mitchell Act without insuring that such programs are not likely to jeopardize the continued existence of threatened or endangered species or result in the destruction or adverse modification of designated critical habitat. D. Enjoin Defendants from funding and/or making commitments to fund hatchery programs under the Mitchell Act until ESA compliance is achieved. E. Issue injunctive relief requiring Defendants to consult with NMFS and FWS under section 7(a)(2) of the ESA, 16 U.S.C. 1536(a)(2), and/or 50 C.F.R. 402.16, on the effects to ESA-listed species and designated critical habitat that has resulted and that will result from hatchery programs that were funded and that will be funded by Defendants under the Mitchell Act. F. Grant such preliminary and/or permanent injunctive relief as Wild Fish Conservancy may from time to time request during the pendency and resolution of this case. COMPLAINT - 27 -