If you're talking about a 70-year past and an indefinite future, you can't just analyze the environmental impact over an arbitrary five-year period, the 9th U.S. Circuit Court of Appeals has concluded, ruling that the U.S. Fish and Wildlife Service's 2008 biological opinion on operation of its own Leavenworth fish hatchery violates the Endangered Species Act. The FWS had concluded that hatchery operations wouldn't jeopardize the continued existence and recovery of Icicle Creek's threatened bull trout. Wild Fish Conservancy had challenged the opinion in the Eastern Washington district court.
The Icicle Creek hatchery was built before World War II to mitigate the effects of the new federal dams on Columbia River salmon populatons. “Unfortunately, and somewhat ironically,” the court observed, “the Hatchery itself blocks fish passage in Icicle Creek.”
The FWS reasoned that although the bull trout population was in decline, five years of operating the hatchery wouldn't push it appreciably further down the slippery slope to extinction. The court thought it was answering the wrong question. “The Service contends that . . . five-year term of operations and management is the entire agency action,” it said. “What the Service’s argument does not acknowledge is that the Hatchery has been operating for seventy years and is expected to continue operating into the future. The Hatchery simply made a decision, endorsed by the Service, to define the action as a five-year term of operations, when it might as easily have chosen a thirty-year term or a one-year term..”
Basically, the FWS had loaded the dice in its own favor, the appellate court found. “(I)f the Service were to analyze ongoing Hatchery operations as a series of ten five-year actions, it might find a likely net decrease of five to ten bull trout over each five-year period, and might conclude that an incremental reduction in the local population of that magnitude would not appreciably reduce the likelihood of survival and recovery of the interim recovery unit. . . . A series of short-term analyses . . . could mask the long-term impact of Hatchery operations. If the Service were to determine in year 45, for example, that Hatchery operations over the next five years would eradicate the local bull trout population, the local population in year 45 . . . might already have become so small, and its role in the interim recovery unit therefore so diminished, that its loss could not be said to reduce appreciably the likelihood of survival and recovery of the interim recovery unit.”
The court wasn't going to let the FWS get away with it. Instead, the majority said that “the Service was required to issue a comprehensive biological opinion taking a long view of the Hatchery’s effects on the bull trout, or to explain adequately why any such effort would be unproductive in assessing the long-term impact of the Hatchery’s operations on the bull trout. Here, the Service did neither. The decision to limit the analysis in the 2008 BiOp to a five-year term of operations and management was therefore arbitrary and capricious.”
