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Native Fish Society v. National Marine Fisheries Service

ELR Citation: 44 ELR 20015
Nos. 3:12-cv-00431, (D. Or., 01/16/2014) (Haggerty, J.)

A district court held that the National Marine Fisheries Service (NMFS) violated NEPA and the ESA in approving certain operations at a fish hatchery on Oregon's Sandy River. NMFS regulations provide an exemption for the otherwise unlawful take of anadromous fish caused by a hatchery's artificial propagation program so long as the hatchery is operated pursuant to an NMFS-approved hatchery genetic management plan (HGMP). Here, conservation groups alleged that NMFS' approval of the HGMP violated NEPA, and the court agreed. There was significant uncertainty regarding the efficacy of the HGMPs in achieving their goals, and NMFS very nearly ignored this uncertainty and treated the success of the programs as a given when it issued its FONSI. Rather than reducing the uncertainty of the success of the HGMP through the production of an EIS, NMFS acted arbitrarily in concluding that the HMGP would have no significant impact. NMFS also erred in failing to consider a reasonable range of alternatives. The groups also alleged that NMFS violated the ESA. Again, the court agreed. NMFS' biological opinion failed to consider important aspects as to whether the hatchery will cause jeopardy to a listed species, and it inappropriately relied on mitigation that is not reasonably certain to occur.