Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT
DISTRICT OF WASHINGTON

NORTHWEST ENVIRONMENTAL ADVOCATES, AMERICAN RIVERS, TROUT UNLIMITED, PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS, and INSTITUTE FOR FISHERIES RESEARCH,

Plaintiffs,

v.

NATIONAL MARINE FISHERIES SERVICE,

Defendants.


Civ. No.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

PRELIMINARY STATEMENT

1. This action seeks review of a biological opinion issued by the National Marine Fisheries Service ("NMFS") to conclude consultation with the U.S. Army Corps of Engineers (the "Corps") under Section 7 of the Endangered Species Act ("ESA"), 16 U.S.C. § 1536, regarding the Corps' proposed Columbia River Channel Deepening Project (the "Project"). The biological opinion ("BiOp") concludes that, despite causing significant adverse effects to an already highly degraded habitat baseline for 13 stocks of ESA-listed salmon and steelhead, the Project is not likely to jeopardize the continued existence of these species or appreciably diminish the value of their critical habitat because of proposed future studies, as yet unplanned monitoring, and yet-to-be-determined or assured mitigation measures.

2. This action challenges the BiOp because, contrary to law and arbitrarily, NMFS has failed, inter alia, (1) to insure that the Project is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of critical habitat for such species; (2) to provide information detailing the effects of the Project on threatened or endangered species and their critical habitat; (3) to use the best scientific and commercial data available; (4) to accurately or adequately describe and delineate the agency action and related effects that are the subject of the consultation; (5) to adequately consider future actions and cumulative effects that are foreseeable but are omitted from consideration; and, (6) to impose reasonable and prudent alternatives, measures, or terms and conditions that are adequate in substance and timing for the conservation of ESA-listed salmonids.

3. For at least these reasons, this action seeks a declaration that the biological opinion's no-jeopardy/no-adverse modification finding and the accompanying incidental take statement violate ESA section 7, 16 U.S.C. § 1536, and are arbitrary, capricious, an abuse of discretion and not in accordance with law in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A). This action also seeks an injunction directing NMFS to withdraw the biological opinion and rescind the incidental take statement.

4. The relief plaintiffs seek is necessary to preserve the status quo, to correct an illegal final agency action, and to prevent unlawful agency action that will result in irreparable harm to the environment and salmonid species listed for protection under the ESA.

PARTIES

5. The plaintiffs in this action are:
A. Northwest Environmental Advocates ("NWEA"), a nonprofit, environmental membership organization that focuses on protection of water quality and riparian habitat in Washington and Oregon. NWEA has worked to bring attention to and solve the environmental problems facing the Lower Columbia River since 1988, including co-chairing the Lower Columbia River Bi-State Water Quality Program, advocating for National Estuary Program designation, preventing new pollution sources to the river, and publishing the educational map Columbia River: Troubled Waters. Many of NWEA's members live, work, and recreate along, near, and on the Lower Columbia River and will be directly and adversely affected by the defendant's failure to comply with the Endangered Species Act.
B. American Rivers, a national, non-profit conservation organization dedicated to protecting and restoring the nations' outstanding rivers and river resources. American Rivers' regional headquarters for the Pacific Northwest region is located in Seattle, Washington. On behalf of its members, American Rivers has been active in ensuring the protection, enhancement, and restoration of Columbia River salmonid stocks, and the ecosystems upon which these species depend. Many of American Rivers' more than 25,000 members reside in the Pacific Northwest and use and enjoy the waters of the Columbia River basin for fishing, recreating, and spiritual renewal. The existence of anadromous species of salmon and steelhead is a source of great economic, recreational, and spiritual value to them. The dramatic decline of these species and their listing under the Endangered Species Act is of great concern to these members. Because the proposed Project threatens to further degrade their habitat and food source and push them to extinction, these members of American Rivers have a direct interest in the outcome of this litigation.
C. Trout Unlimited ("TU"), a non-profit organization with 100,000 members in over 450 chapters nationwide, including chapters in Washington and Oregon. TU's mission is to conserve, protect, and restore North America's trout and salmon fisheries and their watersheds. TU has been involved for many years in protecting the Pacific Northwest salmonid populations. TU's efforts have included harvest limits on ocean fisheries, as well as addressing habitat and water quantity issues along the Columbia River, its tributaries and estuary. Many of TU's members in Washington and Oregon use and enjoy the natural resources of the Columbia River, including the lower river and estuary and will be injured if these resources are diminished or damaged by illegal government action.
D. Pacific Coast Federation of Fishermen's Associations ("PCFFA"), the largest organization of commercial fishermen on the west coast, with member organizations from San Diego to Alaska, including Washington and Oregon, representing thousands of men and women in the Pacific fleet. Many of PCFFA's members are fishermen whose livelihoods depend upon fish as a natural resource and who, until recent fisheries closures, generated hundreds of millions of dollars in personal income to the region. The interests of PCFFA members will be impaired if the Project that is the subject of the challenged biological opinion proceeds in violation of the ESA and APA.
E. Institute for Fisheries Resources ("IFR") is a non-profit corporation that constitutes the conservation arm of PCFFA.

6. Plaintiffs and their members use the Columbia River, its tributaries, and estuary for recreational, scientific, aesthetic, and commercial purposes. Plaintiffs and their members derive or, but for the endangered status of Snake and Columbia River salmon and steelhead, would derive recreational, scientific, aesthetic, and commercial benefits from the existence in the wild of salmon and steelhead through wildlife observation, study and photography, and recreational and commercial fishing within the Columbia River basin and the Pacific Ocean.

7. The above-described aesthetic, conservation, recreational, commercial, scientific, and procedural interests of plaintiffs and their respective members have been, are being, and, unless the relief prayed for herein is granted, will continue to be adversely affected and irreparably injured by the failure of defendants to comply with their obligations to ensure that the survival of these listed species is not further jeopardized by federal action. Plaintiffs have no adequate remedy at law.

8. The defendant in this action is the National Marine Fisheries Service, an agency of the United States Department of Commerce responsible for administering the provisions of the Endangered Species Act with regard to threatened and endangered marine species, including the species of threatened and endangered salmon and steelhead that inhabit the Columbia River, its estuary and the Pacific Ocean.
JURISDICTION AND VENUE

9. This Court has jurisdiction over this action under 5 U.S.C. §§ 701-706 (Administrative Procedure Act), 28 U.S.C. § 1331 (federal question), § 2201 (declaratory judgment), and § 2202 (injunctive relief).

10. Venue is properly vested in this Court under 28 U.S.C. § 1391(e) because members of the plaintiff organizations reside in this district and these members and organizations do business here. In addition, the defendant, NMFS, has its Northwest regional office, which developed and issued the challenged biological opinion, in this district.

STATUTORY FRAMEWORK

11. The Administrative Procedure Act ("APA") authorizes courts reviewing agency action to hold unlawful and set aside agency action, findings and conclusions that are arbitrary and capricious, an abuse of discretion or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A). Biological opinions issued pursuant to Section 7 of the ESA are reviewed under this provision of the APA. See, e.g., Bennett v. Spear, 117 S. Ct. 1154, 1167 (1997); Pacific Coast Federation of Fishermen's Assoc. v. NMFS, 71 F. Supp.2d 1063 (W.D. Wash. 1999).

12. Section 7 itself prohibits agency actions that may jeopardize the survival and recovery of a listed species or adversely modify its critical habitat:
[e]ach federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an 'agency action') is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary . . . to be critical . . . .

16 U.S.C. § 1536(a)(2).

13. Section 7 also establishes an interagency consultation process to assist federal agencies in complying with their duty to avoid jeopardy to listed species or destruction or adverse modification of critical habitat. Under this process, a federal agency proposing action that "may affect" a listed marine species, including salmon and steelhead, must prepare and provide to NMFS a "biological assessment" ("BA"). 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a). The BA must include a description of the manner in which the action may affect the listed species, an analysis of the action's cumulative effects, including impacts of nonfederal actions in the area, the best available scientific information to enable an adequate review of the action's effects on the listed species, and relevant reports and other information. 50 C.F.R. § 402.14(c)-(d). The action agency must also make a preliminary determination of whether its proposed action is likely to adversely affect a listed species. 50 C.F.R. § 402.14(a)-(b). If NMFS concurs in writing with the action agency's determination that an action is not likely to adversely affect the listed species, the consultation process is concluded at that point, and NMFS need not prepare a biological opinion. 50 C.F.R. § 402.13.

14. For all actions that do not receive written concurrence from NMFS in the action agency's "not likely to adversely affect" determination, however, NMFS must review all information provided by the action agency, as well as any other relevant information. 50 C.F.R. § 402.14(g)(1). Based on these data, NMFS must evaluate the species' current status and issue a biological opinion providing a detailed account of the proposed action's effects and of cumulative effects of federal and nonfederal activities in the area. 50 C.F.R. § 402.14(g)-(h). This opinion also must state whether the proposed action will avoid jeopardy and adverse modification of critical habitat. 50 C.F.R. § 402.14(h)(3).

15. If NMFS reaches a no-jeopardy/no-adverse modification finding, it may also issue an incidental take statement for any take of a listed species that is likely to occur as a consequence of the proposed action. 50 C.F.R. § 402.14(I). Take of the listed species that is consistent with an incidental take statement is not subject to the prohibition against take in section 9 of the ESA. 16 U.S.C. § 1536(b)(4).

16. Under ESA section 7(a)(1), federal agencies also must use their authorities to further the purposes of the Act by carrying out programs for the conservation of listed species. 15 U.S.C. § 1536(a)(1). As defined by the ESA, the term "conservation" means to use all necessary methods and procedures to bring any endangered or threatened species to the point at which the measures provided pursuant to the ESA are no longer necessary. 16 U.S.C. § 1532(3). As a part of its responsibility in preparing a biological opinion, NMFS must set forth any conservation recommendations it believes are necessary to comply with section 7(a)(1). 50 C.F.R. § 402.14(j).

THE STATUS OF ANADROMOUS FISH IN THE COLUMBIA RIVER BASIN

17. Steelhead and salmon are anadromous fish. They are born and rear in fresh water, migrate downstream through the Columbia River and its estuary as juveniles to the Pacific Ocean where they grow and live as adults, returning to their natal streams and lakes to spawn and die. The Columbia River, its tributaries, and estuary historically provided habitat for chinook, sockeye, chum, and coho salmon, as well as steelhead. A century ago, between 10 and 16 million salmon returned to the Columbia each year. As of 1991, 67 stocks of Columbia River salmonids were extinct and 76 stocks were at risk of extinction.

18. During the course of their juvenile and adult migrations, these remaining Columbia basin salmon and steelhead face numerous artificial obstacles to successful migration, reproduction and rearing including, but not limited to: habitat loss and degradation due to human activities such as development, logging, grazing and mining; pollution and high water temperatures caused by industry, farming and grazing; increased predation due to altered river flows and ecosystems; disrupted biological transformation processes also due to altered river and estuary conditions; competition with hatchery fish for food and shelter; disease and adverse effects to the genetic pool of wild fish caused by hatchery fish; and commercial and recreational harvest for human consumption.

19. In addition, since 1870, more than half of the estuarine wetlands in the Lower Columbia have been lost. Since 1946, some wetland types in the lower 46 miles of the river have been reduced by over 75 percent. As a result, an appreciable amount of feeding and nursery habitat for endangered salmon is no longer available, which some scientists believe to be a limiting factor in their recovery. Past dredging has shifted the location of the nutrient-rich cloud of biota at the river's mouth upon which salmon rely and altered the salinity and turbidity distributions in the estuary, factors that control the feeding environment of salmon. The estuary is also affected by pollution, including unsafe levels of temperature, dissolved oxygen, pH, bacteria and toxics. Toxic contaminants deposited in the estuary from throughout the Columbia River basin have caused reproductive failure in bald eagles, probable reproductive failure in mink, and deformities in river otter. Toxic materials are known to have measurable deleterious effects to salmonids.

20. One of the most serious obstacles facing Columbia salmon and steelhead is passage through what little remains of the once vast and productive Columbia River estuary. This critical interface between river and ocean ecosystems is an essential nursery for all juvenile Columbia salmon and steelhead and an important transition zone for returning adults. The estuary, however, has been so altered by human activities, especially dredging, filling of wetlands, diking and upstream changes to river flows and water quality that the estuary's very ability to support self-sustaining salmon and steelhead populations is at serious and substantial risk.

21. As a consequence of these and other obstacles, populations of salmon and steelhead have declined precipitously since the advent of European settlement. In fact, Snake River coho salmon have been considered extinct since 1986, the year that the last adult native coho passed Lower Granite Dam.

22. Several sockeye populations also have become extinct. In addition, near the turn of the century, nearly 150,000 sockeye ascended through the Columbia estuary and river to the Wallowa, Payette and Salmon River basins to spawn in natural lakes, including Redfish Lake. In the 1950s and 1960s, more than 4,000 adults returned annually to Redfish Lake. In contrast, only ten sockeye have returned to Redfish Lake since 1994: one in 1994, one in 1996, one in 1998, and seven in 1999.

23. Chinook salmon populations too have declined greatly. Snake River spring and summer chinook, whose return rates once exceeded 1.5 million adult fish per year, averaged only 9,674 wild fish per year from 1980 through 1990. In 1994, only 1,822 wild spring/summer chinook were estimated to have passed Lower Granite Dam, the last federal dam separating these fish from their spawning grounds. Between 1992 and 1996 the mean was only 3,820 naturally produced spawners, constituting less than 0.3% of the estimated abundance of wild spring and summer chinook. The population of Snake River fall chinook, once the most important fall chinook stock in the Columbia River basin with estimated annual returns of 72,000 fish earlier this century, declined to 78 wild fish in 1990 and 742 wild fish in 1993. Between 1992 and 1996, the estimated mean of adult spawners returning to Lower Granite Dam was 1,020 per year. The estimated number reaching the Dam was 797 in 1997 and 306 in 1998.

24. Steelhead in the Columbia and Snake Rivers have also declined during this century. Although estimates of adult steelhead returning to the Snake River prior to 1962 are limited, the run of steelhead in the 1960's is estimated at several times the sportfish take, which ranged from 20,000 to 55,000 fish. The most recent 5-year mean, between 1990 and 1994, for escapement below the Lower Granite Dam was approximately 9,400 wild adults and in recent years average densities of wild juveniles have decreased significantly.

25. NMFS listed Snake River sockeye as an endangered species on November 20, 1991, 56 Fed. Reg. 58619 (Nov. 20, 1991), and the Snake River spring/summer and fall chinook as threatened species on April 22, 1992. 57 Fed. Reg. 14653 (April 22, 1992).

26. On December 28, 1993, NMFS designated critical habitat for the threatened and endangered Snake River sockeye and chinook salmon. 58 Fed. Reg. 68543 (Dec. 28, 1993). The designation for all three species includes the migratory corridor from the salmon's freshwater spawning grounds through the lower Snake and Columbia River and the Columbia estuary to the Pacific Ocean. Id. at 68546.

27. On August 18, 1997, NMFS listed Upper Columbia River steelhead as endangered and Snake River steelhead as threatened species. 62 Fed. Reg. 43937 (Aug. 18, 1997). On March 18, 1998, NMFS listed Lower Columbia River steelhead as threatened. 63 Fed. Reg. 13347 (March 19, 1998).

28. On March 24, 1999, NMFS listed Upper Columbia River spring-run chinook as endangered and Lower Columbia River chinook as threatened. See 64 Fed. Reg. 14308 (March 24, 1999). NMFS also proposed a critical habitat designation for these species in March 1998. See 63 Fed. Reg. 11482 (March 9, 1998).

29. On March 24 and 25, 1999, NMFS listed as threatened two additional anadromous fish populations affected by the Columbia River and its estuary: the mid-Columbia steelhead and the Columbia chum salmon. 64 Fed. Reg. 14507 (March 25, 1999) (Columbia River chum); 64 Fed. Reg. 14517 (March 25, 1999) (middle Columbia steelhead). Critical habitat for the Columbia Chum and the Lower Columbia chinook was proposed in March 1998 but the agency did not make a final habitat designation decision in March of 1999. 63 Fed. Reg. 11482 (March 9, 1998); 63 Fed. Reg. 11774 (March 10, 1998).

30. Critical habitat designation for all of the Columbia and Snake steelhead species was proposed on February 5, 1999, and includes the Lower Columbia River and its estuary. See 64 Fed. Reg. 5740 (Feb. 5, 1999). On February 4, 2000, NMFS announced a final critical habitat designation for these and other Snake and Columbia River salmon and steelhead, which, in each case, includes the Lower Columbia River and its estuary.

31. Many of these listed stocks face a serious and immediate risk of extinction. Recent scientific analyses by NMFS and others has shown that some stocks may disappear in a few short years if their remaining habitat is not immediately protected and aggressive restoration measures begun.

THE CHANNEL DEEPENING PROJECT

32. In October of 1998, the Corps released a Draft Feasibility Analysis and Environmental Impact Statement ("DEIS") for the Columbia River Channel Deepening Project. The Project proposes to dredge an additional 3 feet over 100 miles of the Columbia River navigation channel and 6 miles of the Willamette upstream from its confluence with the Columbia. In order to achieve this new depth, the navigation channel actually will be over-dredged by an average of five feet. BiOp at 1. The navigation channel itself is some 600 feet wide with a number of even wider turning basins. Id. at 3. According to the BiOp, the Project will require the removal and relocation of 52 million cubic yards of dredge spoils. Id. at 3. This estimate has met with skepticism in the scientific community and dredge spoil removal in connection with the Project is likely to exceed the Corps' estimate by a significant amount.

33. At the heart of this Project is the Lower Columbia River and its estuary where all of the young anadromous fish in the Columbia basin undergo dramatic physiological processes which allow these fish to proceed from the initial fresh water phase of their life cycle to the marine or salt-water phase. Of the basin's anadromous fish, 13 stocks are listed for protection under the ESA. Each of these stocks spends a different amount of time in the Lower Columbia and its estuary and occupies different parts of the river ecosystem during their stay.

34. The Project will have significant, unquantified, unexamined, and unexplained adverse effects on young salmonids through, among a host of impacts, changes in water quality, ecosystem function, sediment transport, turbidity, redistribution of contaminated sediments, and changes in salinity intrusion in the estuary affecting its productivity and suitability to support salmonids.

35. In addition, the dredge spoils generated by the Project will be disposed in a manner that destroys wetlands and alters river and estuary habitat for salmonids and other species. Indeed, it appears that the Project will destroy over 1,000 acres of wetlands or critical habitat in the lower river and estuary, ecologically important habitat that already is severely degraded and has largely disappeared from this part of the river with the loss of more than half of the historic wetlands in the lower river and estuary. Likewise, the Project apparently will destroy over 3,600 acres of bottom habitat that is important to the functioning of a healthy river and estuarine ecosystem.

36. These and other environmental effects will be added to a river ecosystem that NMFS scientists have described as "grossly altered by previous dredging to establish the navigation channel, disposal of dredged material, diking and filling, sewage and industrial discharges, water withdrawals and flow regulation." NMFS Memorandum of Dec. 2, 1999, from Northwest Fisheries Science Center at 1. All of these and other environmental concerns were the subject of numerous comments submitted to the Corps in response to the October 1998 DEIS. Notwithstanding these serious concerns, the Corps has released a Final Feasibility Analysis and EIS ("FEIS") which described and analyzed the Project substantially as it was proposed.
NMFS CONSULTATION REGARDING THE PROJECT

37. During the time that the Corps prepared its feasibility analysis and EIS, the agency also prepared a biological assessment ("BA") for the Project in accordance with the consultation requirements of ESA section 7(a)(2). The BA concluded that the Project could adversely affect a listed species and, accordingly, the Corps proceeded to engage in formal consultation with NMFS regarding the effects of the Project. In October of 1999, NMFS staff informed the Corps that the consultation could not be completed until early 2000 at the soonest in order to allow NMFS to evaluate and quantify the impacts of the project on listed salmonids.

38. On December 3, 1999, before NMFS completed its biological opinion but after the Corps released the FEIS for the Project, the Corps provided NMFS with a revised BA which altered the scope and substance of the proposed Project by including general proposals for research, moving forward, if possible, the schedule for implementing certain previously planned restoration activities in the Lower Columbia River that were not a part of the Project, and proposing further studies and monitoring during and following dredging. BiOp at 4-8. The revised BA also identified several limited restrictions on placement of hydraulic dredge equipment during actual dredging operations. Id. at 8. In addition, at or about this time, NMFS committed to the Corps that it would complete its biological opinion before the end of 1999, notwithstanding its prior position regarding the need for further analysis, so that the Corps could satisfy the time-limited conditions in the congressional authorization for the Project. NMFS met this deadline by issuing its final biological opinion for the Project on December 16, 1999.

39. The NMFS BiOp begins appropriately enough with an assessment of the baseline habitat conditions for listed salmonids in the Lower Columbia River. The opinion finds that "the biological requirements of the listed species are currently not being met under the environmental baseline" and that "there needs to be significant improvement in the current environmental baseline." BiOp at 16. The opinion adds that the existing risk of extinction for Columbia River salmonids has been significantly increased because the complex freshwater and estuarine habitat essential to maintain the species has been "lost and fragmented" through "dredging, filling, and diking." Id. at 17. The baseline analysis for the opinion concludes that the degraded estuarine and Lower Columbia River habitat is "not properly functioning relative to the identified biological requirements and essential critical habitat elements" for the 13 listed salmonid stocks. Id. at 18.

40. In its analysis of Project effects, the BiOp explains that the proposed action will have a significant, but unquantified adverse effect on the listed salmonids through various impacts including, but not limited to, increased turbidity, re-suspension of toxic sediments, potential changes in estuarine physical habitat and salinity, stranding of young salmon by vessel wakes, aggravated predation by seabirds colonizing dredge spoils, and future changes to wetlands and riparian habitat through deposition of dredge spoils and increased industrial development. NMFS analysis of impacts is incomplete and underestimates and understates the nature of the likely harmful effects of the Project. In addition, NMFS failed to seek or perform an accurate assessment of impacts and failed to consider available information about the scope and magnitude of the Project's harmful effects on listed salmonids and their river and estuarine habitat.

41. Even so, in a summary of effects, NMFS concludes that "[i]t is difficult to say with any certainty whether this action will degrade the estuarine ecosystem beyond a critical threshold." BiOp at 25 (emphasis added). The opinion concludes unequivocally, however, that the Project will have biological consequences, although it hedges that "[t]he magnitude of these changes to the listed salmon species cannot be predicted with certainty." Id.

42. Remarkably and inexplicably, the BiOp concludes that the Project will not likely jeopardize any listed salmonid species and will not appreciably diminish the value of critical habitat for these species. The express foundation for this conclusion is NMFS' unquantified, unanalyzed, and unexplained judgment that the vague research, monitoring, and contingent post-construction mitigation and restoration proposed by the Corps for the Project on December 3, 1999, less than two weeks before NMFS issued its BiOp, "are likely to exceed habitat values that may be lost." BiOp at 27. The BiOp, however, fails to analyze whether any of these measures can provide benefits to listed salmon and steelhead before the harmful effects of the proposed dredging will reduce significantly the species' prospects for survival and recovery as well as the biological value of their critical habitat. This failure to address or analyze critical timing issues is arbitrary, irrational and allows significant threats to salmon stocks at risk of imminent extinction to go unaddressed. In addition, the BiOp fails to consider thoroughly or rationally the effects of the Project when combined with other on-going and foreseeable actions that will, in combination and separately, significantly reduce the listed species' chances of survival and recovery and significantly and adversely modify the species' critical habitat.

43. The scope, substance and funding for these studies and monitoring are yet to be determined. Further, most of the added habitat mitigation and restoration measures will be implemented, if at all, after completion of construction and themselves appear to be contingent on the results of unspecified studies and monitoring as well as the Corps' authority and funding for such measures. The quality, magnitude, nature, location and timing of these additional actions is not specified and the likelihood for actual completion of these actions is unknown. Even so, the BiOp relies on them as the central basis for its no-jeopardy/no-adverse modification finding. BiOp at 26-27. Thus, the opinion states:
NMFS has relied on the professional opinions of scientists with expertise in estuarine ecology[] to evaluate whether the restoration measures match or exceed the loss posed by the proposed action . . . . In NMFS's judgment, the research, monitoring, ecological restoration and physical protections included in the proposed action are likely to exceed habitat values that may be lost due to channel deepening, with an adequate margin for safety.

Id. at 27.

44. In short, the BiOp combines an inadequate and arbitrary assessment of the likely effects of the project, including its cumulative effects, with unaccountable but nearly complete reliance on unspecified and uncertain research, monitoring and mitigation to reach a no-jeopardy/no adverse modification finding for an action that will adversely affect 13 listed salmonid stocks and their critical habitat in an ecosystem that NMFS itself recognizes is degraded and currently incapable of supporting these species, let alone allowing them to recover.

PROJECT IMPLEMENTATION AND CONGRESSIONAL ACTION

45. Congress conditionally authorized the Project in § 101(b)(13) of the Water Resource Development Act of 1999. Pub. L. No. 106-53, 113 Stat. 260 (August 17, 1999). Under the terms of the Act, the Secretary of the Army is authorized to proceed with planning for and implementation of the Project contingent on a favorable report by the Chief of the Corps submitted not later than December 31, 1999.

46. On December 23, 1999, the Chief of the Corps submitted a favorable report to the Secretary of the Army and Congress recommending that the Project be authorized to proceed and funded for construction by congressional appropriation. The Chief's report certifies that the project meets the applicable environmental laws and standards. This conclusion is based, in part, on the favorable and essential biological opinion issued by NMFS under ESA section 7(a)(2) on December 16, 1999. The report observes that NMFS expressed concerns regarding the uncertain ecological effects of the Project and responds with the statement that "[m]odifications to the project mitigation and environmental restoration plans will be considered within the limits of the discretion of the Chief of Engineers." Chief, U.S. Army Corps of Engineers, Report to the Secretary of the Army Re: Columbia and Lower Willamette Rivers Federal Navigation Channel, (Dec. 23, 1999) (emphasis added). Based on this report to Congress, plaintiffs expect that the Corps will request from Congress the appropriations necessary for the construction and completion of the Project.

47. In sum, since 1991 thirteen stocks of salmon and steelhead that spawn, rear, and migrate through the Columbia River estuary have been listed as threatened or endangered under the ESA. As a result of these listings, federal, state, local, and private actions that may adversely affect these fish have been and will be significantly altered or even stopped. Throughout the Columbia River basin, government agencies, elected officials, industries, and land owners are considering major changes in the way they carry out their activities, ranging from dam removal to water conservation and land use restrictions in an effort to fulfill the requirements of the ESA and achieve recovery and de-listing of these species.

48. In stark contrast to these efforts and the recognition of a need for even greater changes in behavior that underlies them, the Corps has proposed to dredge more than 100 miles of the Columbia River from its mouth to Portland, and six miles of the Willamette River, in an effort to gain marginal efficiency in commercial navigation. This action will adversely affect listed salmon, modify and destroy the species' critical habitat, and jeopardize their survival and recovery. Nonetheless, NMFS has concluded in a formal and final biological opinion, contrary to both the law and the available evidence, that the Corps' proposed action will not violate section 7 of the ESA.

CLAIM FOR RELIEF
VIOLATIONS OF THE ESA AND APA

49. Plaintiffs incorporate by reference all preceding paragraphs.

50. NMFS has violated the requirements of ESA section 7 and its implementing regulations by failing to provide any rational basis for its conclusion in the BiOp that the Project is not likely to jeopardize any listed species or adversely modify their critical habitat. These violations of the law include, but are not limited to, the failure to adequately discuss, disclose or analyze the likely effects of the Project and its cumulative effects on listed species based on the best scientific and commercial data available and arbitrary reliance on proposed research, monitoring, and mitigation to offset the Project's impacts where the available evidence and scientific information shows that such actions are too uncertain and not likely to avoid jeopardy or adverse modification of critical habitat in any event.

51. NMFS' actions and omissions are arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law and are reviewable under the APA, 5 U.S.C. §§ 701-706.

PRAYER FOR RELIEF

WHEREFORE, plaintiffs respectfully request that the Court:
1. Adjudge and declare that NMFS has violated ESA section 7 and its implementing regulations by making a no-jeopardy/no-adverse modification finding in the BiOp for the Project that is arbitrary, capricious, an abuse of discretion and contrary to law;

2. Enjoin NMFS to withdraw the BiOp and incidental take statement for the Project, notify the Corps that the BiOp and incidental take statement have been withdrawn, and prepare a BiOp for the Project that complies with the requirements of the ESA;

3. Award plaintiffs their reasonable fees, costs, expenses, and disbursements, including attorneys fees, associated with this litigation; and,

4. Grant plaintiffs such further and additional relief as the Court may deem just and proper.

DATED this ______ day of February, 2000.

Respectfully submitted,

_________________________________
TODD D. TRUE (WSB #12864)
STEVE MASHUDA
Earthjustice Legal Defense Fund
705 Second Avenue, Suite 203
Seattle, WA 98104
(206) 343-7340
(206) 343-1526 [FAX]
ttrue@earthjustice.org
smashuda@earthjustice.org

Attorneys for Plaintiffs

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