Salazar

Opinion by Judge BERZON; Partial Concurrence and Partial Dissent by Judge FISHER.

OPINION

We are faced once again with the far-reaching effects of federal hydroelectric projects in the Columbia River Basin on the region’s native fish species. See, e.g., Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d 917 (9th Cir.2008); Nw. Res. Info. Ctr., Inc. v. Nw. Power Planning Council, 35 F.3d 1371 (9th Cir. 1994). The fish at the heart of this particular controversy is not salmon, as in most of the earlier cases, and the potential threat to its survival and recovery is not a hydroelectric dam but a hatchery project intended to mitigate a dam’s impact.

This action, brought by the Wild Fish Conservancy (“the Conservancy”), centers on a biological opinion (“BiOp”) addressing the effects of the operations of the Leavenworth National Fish Hatchery (“the Hatchery”) on the bull trout. See U.S. Fish & Wildlife Serv., Biological Opinion for the Operation and Maintenance of the Leavenworth National Fish Hatchery Through 2011 (2008) [hereinafter “2008 BiOp”]. The bull trout is listed under the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-44 , as threatened throughout its range.…

Brian A. Knutsen, Richard A. Smith, and Bridget Baker-White, Smith & Lowney, PLLC, Seattle, WA, for the plaintiff-appellant.

John C. Cruden, Acting Assistant Attorney General, Thekla Hansen-Young, Ellen Durkee, J. Brett Grosko, and David C. Shilton, Attorneys, Environment & Natural Resources Division, Department of Justice, Washington, DC, Nolan Shishido, of Counsel, Office of Regional Solicitor, Department of the Interior, for the defendants-appellees.

Before: A. WALLACE TASHIMA, RAYMOND C. FISHER and MARSHA S. BERZON, Circuit Judges.

Opinion by Judge BERZON; Partial Concurrence and Partial Dissent by Judge FISHER.

BERZON, Circuit Judge:

We are faced once again with the far-reaching effects of federal hydroelectric projects in the Columbia River Basin on the region's native fish species. See, e.g., Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d 917 (9th Cir.2008); Nw. Res. Info. Ctr., Inc. v. Nw. Power Planning Council, 35 F.3d 1371 (9th Cir. 1994). The fish at the heart of this particular controversy is not salmon, as in most of the earlier cases, and the potential threat to its survival and recovery is not a hydroelectric dam but a hatchery project intended…

concurring in part and dissenting in part:

Prompted by this litigation, the U.S. Fish and Wildlife Service has attempted to minimize the effect of the Leavenworth National Fish Hatchery (“the Hatchery”) on the small population of bull trout in Icicle Creek. My colleagues in the majority find these efforts insufficient to meet the strictures of the Endangered Species Act (“ESA”) and place two substantial burdens on the Fish and Wildlife Service (“the Service”) that the ESA does not require. First, the majority requires the Service to address operations and maintenance on an unlimited time horizon, despite planned modifications that will further reduce the Hatchery’s impact on the bull trout. Second, the majority requires the Service to attribute continuation of a 70-year population decline to planned Hatchery operations, rather than recognizing that trend and the structures that caused it as the environmental baseline. I respectfully dissent from these aspects of the majority’s opinion.

I.

The majority first concludes that the Service acted arbitrarily or capriciously by limiting its analysis to the five-year term of the 2006 to 2011 Operations and Maintenance Plan (“the O&M…