## Facts

- Several Columbia and Snake River Basin salmon and steelhead populations were listed as threatened or endangered under the Endangered Species Act (ESA).
- The fish migrate through the Federal Columbia River Power System (FCRPS), a network of dams and related facilities operated by the U.S. Army Corps of Engineers and the U.S. Bureau of Reclamation.
- In 2004, the National Marine Fisheries Service (NMFS) issued a biological opinion (BiOp) evaluating proposed FCRPS operations for 2004–2014 for effects on 13 ESA-listed salmonid species and designated critical habitat.
- NMFS concluded the proposed operations were not likely to jeopardize listed species and would not destroy or adversely modify critical habitat.
- In defining the “agency action,” NMFS treated the dams’ continued existence and much of their ongoing operation as part of the environmental baseline and evaluated only a narrower set of future discretionary modifications.
- NMFS framed its jeopardy inquiry largely as whether the proposed changes would make the species’ future “appreciably worse” than the already-degraded status quo.
- Conservation and fishing groups (and others) challenged the 2004 BiOp in the District of Oregon; the district court set aside the BiOp and remanded to NMFS.
- NMFS and the State of Idaho appealed the district court’s determination that the BiOp was structurally flawed and aspects of the remand order.

## Issues

1. Whether NMFS lawfully defined the ESA § 7 “agency action” by treating major ongoing FCRPS operations and the dams’ existence as baseline conditions rather than part of the action analyzed in consultation.
2. Whether ESA § 7 permits a “comparative” jeopardy analysis that asks only whether proposed changes will not make conditions “appreciably worse” than a degraded baseline.
3. Whether a lawful jeopardy analysis must consider impacts on both the likelihood of survival and the likelihood of recovery of listed species.

## Decision

- The Ninth Circuit affirmed the district court.
- The court held the 2004 BiOp was unlawful because its analytical framework improperly narrowed the scope of the agency action and relied on an impermissible baseline/comparative approach.
- The court rejected a methodology that embeds ongoing harmful effects in the baseline and then finds “no jeopardy” because proposed operations do not further worsen conditions.
- The court agreed that the jeopardy inquiry must address effects on recovery as well as survival, consistent with the ESA and implementing regulations.
- The court upheld setting aside the entire BiOp and remanding to NMFS to prepare a new BiOp consistent with the ESA.

## Legal Principles

- ESA § 7 consultation must analyze the effects of the agency action as a whole; an agency may not define the action so narrowly that substantial ongoing operational impacts are excluded from review.
- The jeopardy/adverse-modification determination evaluates the effects of the action together with the environmental baseline; it is not satisfied by showing conditions will be “no worse” than an already-degraded status quo.
- Agencies may not avoid ESA responsibilities by treating continuing harmful operations as an immutable baseline and limiting the inquiry to incremental discretionary changes.
- “Jeopardize the continued existence of” may require considering whether the action appreciably reduces the likelihood of both survival and recovery, not only whether it avoids immediate extinction.

## Conclusion

The Ninth Circuit invalidated NMFS’s 2004 FCRPS biological opinion because it used a structurally flawed ESA § 7 methodology that narrowed the action, insulated ongoing harms by placing them in the baseline, and applied an unlawful “no appreciably worse” jeopardy test that failed to properly account for recovery.


Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d 917 (9th Cir. 2008)