The Ninth Circuit affirmed in part and vacated in part a decision by the district court for the Western District of Washington to grant declaratory and injunctive relief to the Pacific Coast Federation of Fishermen's Associations and five other environmental organizations (Fishermen). Fishermen challenged as defective the biological opinions issued by the National Marine Fisheries Service (NMFS) in conjunction with twenty-three timber sales proposed for the Umpqua River Basin. Fishermen successfully alleged that under the Endangered Species Act,[1] NMFS acted arbitrarily and capriciously in reaching its "no jeopardy" conclusion with respect to the potential effects of the proposed timber sales on the Umpqua River cutthroat trout and the Oregon Coast coho salmon.[2]

Douglas Timber Operators (Douglas) and the Northwest Forestry Association were intervenor-defendants in the original suit[3] who, upon appeal, alleged that the biological opinions issued by NMFS were not final appealable agency decisions under the Administrative Procedure Act.[4] Douglas reasoned that because the United States Bureau of Land Management (BLM) and the United States Forest Service (USFS) had approved the timber sales, BLM and USFS, not NMFS, were the proper defendants. Thus, Douglas argued that venue in the Western District of Washington was improper because both agencies have headquarters in Portland, within the District of Oregon.

The Ninth Circuit rejected Douglas's argument to find that venue was proper, applying the reasoning of Bennett v. Spear,[5] which held that a jeopardy opinion was a final appealable agency action. Although Bennett dealt with a "jeopardy" opinion, the Ninth Circuit found "no authority for the proposition that while a 'jeopardy' opinion is reviewable as a final agency action, a 'no jeopardy' opinion is not final and reviewable."[6] The Ninth Circuit then applied the Bennett two-part test to determine whether NMFS's "no jeopardy" biological opinions were final agency actions. The court found that NMFS's biological opinions marked the "consummation" of the consultation process and altered the "legal regime" by granting "immunity to the proposed actions of other agencies required to obtain an NMFS opinion before proceeding with their own actions."[7]

The Ninth Circuit then turned to the aspects of Fishermen's claim challenged by NMFS on appeal, namely whether NMFS had acted arbitrarily and capriciously by (1) assessing each proposed timber sale's compliance with the Aquatic Conservation Strategy (ACS) of the Northwest Forest Plan only at the watershed level, thereby ignoring local and cumulative impacts; (2) focusing on long-term rather than short-term ACS compliance; and (3) determining that logging in riparian reserves would not violate ACS standards.

In its determination of ACS consistency, NMFS used a watershed level of analysis rather than a project-site level of analysis. Thus, project degradation undetected at the watershed scale was presumed consistent with the ACS, and NMFS used this presumption to justify its "no jeopardy" determination. Fishermen alleged this watershed analysis effectively "mask[ed] all project level degradation" and ignored the cumulative impacts of the proposed timber sales.[8] NMFS argued that the watershed scale was proper because the overall objective of the ACS, as paraphrased by the Ninth Circuit, is "to maintain and restore ecosystem health at watershed and landscape scales to protect habitat for fish and other riparian-dependent species and resources and restore currently degraded habitats."[9] The Ninth Circuit rejected NMFS's narrow reading of the purpose of the ACS, stating that preventing project site degradation and restoring habitat could not be achieved if "cumulative effect[s] of individual projects on small tributaries within watersheds" were ignored.[10] In fact, the court found "no proof" that NMFS evaluated the cumulative impacts of the proposed timber sales when it reached its no jeopardy opinion at the regional watershed level.[11] The court then warned that if NMFS did not aggregate the impacts of individual projects, then NMFS's ACS consistency determination at the watershed level assumed that "no project will ever lead to jeopardy of a listed species."[12] The Ninth Circuit affirmed the district court, holding that when NMFS ignores local degradations with significant cumulative impacts it acts arbitrarily and capriciously.

Fishermen also alleged that NMFS's use of a ten-to twenty-year time frame to assess ACS consistency ignored the short-term environmental impacts of the proposed timber sales and led to the false presumption that passive mitigation would alleviate adverse effects on fish habitat. Again, the Ninth Circuit affirmed the district court, finding "nothing in the record to authorize NMFS to assume away significant habitat degradation."[13] Recognizing that anadromous fish have uniquely fragile life histories, the court found that the lengthy time frame used by NMFS in its ACS consistency analysis was inadequate because ten years of habitat degradation could lead to the "total extinction of the subspecies that formerly returned to a particular creek for spawning."[14] The Ninth Circuit pointed to an earlier programmatic biological opinion in which NMFS recognized the vulnerability of anadromous species of the Umpqua River, stating that "'even a low level of additional impact. . .may reduce the likelihood of survival and recovery.'"[15] The Ninth Circuit found NMFS's "choice not to assess degradation over a time frame that takes into account the actual behavior of the species in danger" unjustifiable.[16] With respect to passive mitigation, NMFS had predicted that any short-term or local effects of the timber sales would be mitigated over the next decade by regrowth. Fishermen alleged, and both the district court and Ninth Circuit agreed, that scientific evidence did not support the conclusion that passive mitigation through regrowth would adequately mitigate degradation due to the timber sales and ensure that "fish that never hatched could return to the recovered spawning habitat."[17]

Finally, with respect to Fishermen's third claim, the Ninth Circuit vacated the district court's holding that NMFS had acted arbitrarily and capriciously in concluding that the proposed riparian reserve sales were consistent with ACS objectives. In upholding NMFS's ACS consistency determination with respect to these three timber sales, the Ninth Circuit acknowledged that one of the challenged timber sales fell under a "research exception" while the biological opinion stated that the other two proposed timber sales "were 'not likely to adversely affect'" either salmonid species.[18]