Wild Fish Conservancy v. Nat'l Park Serv.

8 F.Supp.3d 1289

WILD FISH CONSERVANCY, et al., Plaintiffs

v.NATIONAL PARK SERVICE, et al., Defendants.

Case No. C12–5109 BHS.

United States District Court, W.D. Washington, at Tacoma.

Signed March 26, 2014.

Claire E. Tonry, Elizabeth Hunter Zultoski, Richard Adam Smith, Smith & Lowney PLLC, Seattle, WA, Brian Alan Knutsen, Smith & Lowney PLLC, Portland, OR, for Plaintiffs.

Ethan Carson Eddy, US Department of Justice, Andrea Gelatt, Joseph T. Mathews, Washington, DC, Brian C. Kipnis, US Attorney's Office, Seattle, WA, Carter Howell, US Department of Justice, Portland, OR, for Defendants.

ORDER

BENJAMIN H. SETTLE, District Judge.

This matter comes before the Court on Plaintiffs Federation of Fly Fishers Steelhead Committee, Wild Fish Conservancy, Wild Salmon Rivers, and Wild Steelhead Coalition's (“Plaintiffs”) motion for summary judgment (Dkt. 153) and Defendants Daniel M. Ashe, John E. Bryson, Jonathan B. Jarvis, NOAA Fisheries Service (“NMFS”), National Park Service (“NPS”), Samuel D. Rauch, III, Kenneth L. Salazar, United States Department of Commerce (“DOC”), United States Department of the Interior (“DOI”), and United States Fish and Wildlife Service's (“FWS”) (collectively “Federal Defendants”) cross motion for summary judgment (Dkt. 164). The Court has considered the pleadings filed in support of and in opposition to the motions and the remainder of the file and hereby grants in part and denies in part the parties cross-motions for summary judgment the motion for the reasons stated herein.

I. PROCEDURAL HISTORY

On February 9, 2012, Plaintiffs filed a complaint for declaratory and injunctive relief against numerous Defendants alleging numerous violations regarding the implementation of fish hatcheries in the Elwha River. Dkt. 1.

On November 11, 2012, Plaintiffs filed a first supplemental complaint. Dkt. 66. On February 11, 2013, Plaintiffs filed a second supplemental complaint. Dkt. 125.

On February 12, 2013, 2013 WL 549756, the Court granted the motion to dismiss of Defendants Doug Morrill, in his official capacity as the Fisheries Manager for the Lower Elwha Klallam Tribe, Larry Ward, in his official capacity as the Hatchery Manager and Fisheries Biologist for the Lower Elwha Klallam Tribe, Robert Elofson, in his official capacity as the Director of the River Restoration Project for the Lower Elwha Klallam Tribe, and Mike McHenry, in his official capacity as the Fisheries Habitat Biologist and Manager for the Lower Elwha Klallam Tribe. Dkt. 126.

On March 26, 2013, Plaintiffs filed a third supplemental complaint. Dkt. 131.

On June 26, 2013, Plaintiffs filed a motion for summary judgment. Dkt. 153. On July 24, 2013, the Federal Defendants responded and filed a cross-motion for summary judgment. Dkt. 164. On August 7, 2013, Plaintiffs responded to the Federal Defendants' motion. Dkt. 170. On August 21, 2013, the Federal Defendants replied. Dkt. 171. On August 27, 2013, Plaintiffs filed a surreply requesting that the Court strike material that the Federal Defendants submitted in support of their reply. Dkt. 175.

On March 12, 2014, the Court held a hearing on the cross-motions and, during the hearing, requested additional briefing on two issues. See Dkt. 185. On March 17, 2014, the Federal Defendants filed a supplemental brief. Dkt. 188. On March 21, 2014, Plaintiffs filed a supplemental brief. Dkt. 189.

II. FACTUAL BACKGROUND

The Elwha River is approximately forty-five miles in length, flowing north on the Olympic Peninsula in Washington State into the Strait of Juan de Fuca near Port Angeles. NMFS007171; 1104–FWS.¹ The river's watershed encompasses approximately 321 square miles, of which approximately 267 square miles are within the Olympic National Park. NMFS007171; 1104–FWS; and see NMFS015983.

The Elwha River was once one of the most productive anadromous fish streams in the Pacific Northwest, believed to have produced nearly 400,000 spawning fish annually. See NMFS015982, 033301–02; 774, 866–FWS. In the early 1900's, the Elwha and Glines Canyon Dams were constructed without fish passage structures, and they blocked upstream fish passage to more than 70 miles of mainstem and tributary habitat. NMFS007171; 798, 866, 932–FWS. Salmonids returning to spawn have been confined to the lower 4.9 miles of the river below the Elwha Dam and have not had access to the vast majority of the river's spawning habitat. NMFS007171; 780, 798, 932–FWS. The result was a “precipitous decline of salmonid populations to fewer than 3,000 naturally spawning fish compared to an estimated 392,000 fish prior to dam construction.” 774, 798–FWS.

In 1992 Congress passed the Elwha River Ecosystem and Fisheries Restoration Act (“Elwha Act”), Pub.L. 102–495, 106 Stat. 3173 (Oct. 24, 1992), which instructed the Secretary of the Interior to acquire the Elwha and Glines Canyon Dams and submit to Congress a report for “full restoration of the Elwha River ecosystem and the native anadromous fisheries.” Elwha Act § 3(c). The DOI submitted the Elwha Report to Congress in 1994. NPS2625.

In 1995, NPS completed the Elwha River Ecosystem Restoration Environmental Impact Statement, which evaluated five alternatives for restoring the Elwha River by wholly or partially removing the dams, or modifying them to incorporate fish passage capabilities. NPS2374–2623 (“Programmatic EIS”). NPS ultimately chose removal of both dams as the only alternative that would meet the stated goal of the Elwha Act. This alternative was referred to as the “Proposed Action” and was described as follows:

[DOI] proposes to fully restore the Elwha River ecosystem and native anadromous fisheries through the decommissioning of Elwha Dam and Glines Canyon Dam and removal of all structures necessary, including all or part of both dams, powerhouses, reservoirs, and associated facilities to achieve this purpose.

NPS2374.

In 1996, NPS completed the Implementation EIS, which analyzed alternatives for, and environmental impacts of, removing both hydroelectric dams and implementing fisheries restoration measures. NPS1841–2372 (“Implementation EIS”); NPS1822 (1996 Record of Decision). The analysis examined the level of expected sedimentation resulting from the dam removal and the effect it would have on fish. NPS2067–68. NPS found that there were three suspended sediment concentration thresholds for fish: 200 parts per million (“ppm”) (causing physiological stress, reduced growth); 1,000 ppm (lethal from chronic exposure); 10,000 ppm (lethal from acute exposure). NPS2067. NPS's modeling predicted that there would be four distinct phases in which there would be “direct losses” of fish, with sedimentation ranges rising as high as 51,000 ppm. NPS068 (table 46). NPS considered hatchery support and outplanting to “ensure protection of fish stocks during periods of high sediment yields.” NPS2068–2070. The discussion and related table referred to outplanting in the middle and upper Elwha River. Id.

In July 2005, DOI issued a supplemental EIS (“SEIS”) because “several changes” had occurred. ELWHA004440. Although the SEIS was “designed as a stand-alone document for readability,” DOI asserted that it was “legally an extension of the [Implementation EIS].” ELWHA004441. The supplement states that “changes and new information have resulted in the need for different mitigation than that analyzed in the [Implementation EIS].” ELWHA004440. DOI proposed mitigation measures to accomplish four goals, two of which relate to the instant matter and are as follows: (1) “to protect municipal and industrial water users and two fish propagation facilities (hatcheries) during dam removal,” and (2) “to protect listed fish to the maximum extent possible during and following dam removal.” Id. Some of the preferred means to accomplish these goals were stated as follows:

providing access to clean tributary habitat for bull trout; keeping the Washington State Department of Fish and Wildlife [ (“WDFW”) ] chinook-rearing channel open during dam removal; moving the tribal fish hatchery; and creating rearing ponds on nearby Morse Creek to ensure the survival of Elwha chinook during dam removal.

Id.

The SEIS includes a section describing the actions evaluated and rationale behind these actions. For the fish restoration portion of the supplement, the document provides as follows:

Since the release of the [Implementation EIS], both Elwha River chinook salmon and bull trout have been listed as federal threatened species. The [FWS] (for bull trout) and [NMFS] (for chinook salmon) will require additions to the fish restoration plan intended to preserve and protect populations of both species. For example, the WDFW rearing channel was to have been closed during dam removal, but it is now going to remain open as a measure to more fully protect the native chinook salmon population during the dam removal process. A bull trout rescue and removal plan is required, and culverts blocking access to tributaries within Olympic National Park that could be used by bull trout as a refuge during dam removal must be replaced or modified. Efforts to remove eastern brook trout from these tributaries prior to culvert removal would be undertaken to prevent hybridization with bull trout. To help mitigate impacts to chinook salmon, dam removal activities would stop during two additional periods each year to facilitate seaward migration of smolts in the spring and upstream migration of adults in the summer and fall.

ELWHA004450.

The SEIS recognizes that the proposed actions will affect “species of special concern.” ELWHA004455. The summary of the plan with regard to these species was as follows:

Measures taken to preserve the native chinook salmon population during dam removal, including maintaining an artificially propagated chinook population at the WDFW fish-rearing facility, ensuring that the WDFW facility is provided with clean water, and creating a reserve chinook population using Elwha stock in an adjacent watershed (Morse Creek), would offer beneficial outcomes by

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