Case 6:21-cv-00034-AA Document 1 Filed 01/08/21 Page 1 of 14
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`Peter M. K. Frost (OSB #911843)
`Sangye-Ince Johannsen (OSB #193827)
`Western Environmental Law Center
`120 Shelton McMurphy Blvd., Suite 340
`Eugene, Oregon 97401
`Tel: 541-359-3238 / 541-778-6626
`frost@westernlaw.org / sangyeij@westernlaw.org
`
`Elisabeth A. Holmes (OSB #120254)
`Willamette Riverkeeper
`P.O. Box 293
`Eugene, Oregon 97440
`Tel: 541-870-7722
`eli@willametteriverkeeper.org
`
`Attorneys for Plaintiffs
`
`
`
`UNITED STATES DISTRICT COURT
`
`DISTRICT OF OREGON
`
`EUGENE DIVISION
`
`
`Case No.: 6:21-cv-34
`
`
`COMPLAINT FOR
`DECLARATORY AND
`INJUNCTIVE RELIEF
`
`(Violations of Endangered Species Act,
`16 U.S.C. §§ 1531 et seq., and the
`National Environmental Policy Act, 42
`U.S.C. §§ 4321 et seq.)
`
`
`
`
`
`WILLAMETTE RIVERKEEPER; THE
`CONSERVATION ANGLER,
`
` Plaintiffs,
`
`
` vs.
`
`NATIONAL MARINE FISHERIES SERVICE;
`BARRY THOM, Regional Administrator,
`Marine Fisheries Service; U.S. ARMY CORPS
`OF ENGINEERS; MICHAEL HELTON,
`District Engineer, U.S. Army Corps of
`Engineers; U.S. FISH AND WILDLIFE
`SERVICE; ROBYN THORSON, Regional
`Director, U.S. Fish and Wildlife Service,
`
`
` Defendants.
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`Case 6:21-cv-00034-AA Document 1 Filed 01/08/21 Page 2 of 14
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`This is a civil suit for declaratory and injunctive relief to challenge federal agency actions
`1.
`related to winter steelhead trout in the upper Willamette River in Oregon. Winter steelhead are
`listed under the Endangered Species Act (“ESA”) as threatened with extinction. Since winter
`steelhead were listed under the ESA, populations have declined even further. Plaintiffs
`Willamette Riverkeeper and The Conservation Angler seek to compel Defendants National
`Marine Fisheries Service (“NMFS”), U.S. Army Corps of Engineers (“Corps of Engineers”), and
`U.S. Fish and Wildlife Service (“Fish and Wildlife Service”) to comply fully with the ESA and
`the National Environmental Policy Act (“NEPA”) to ensure winter steelhead survive and recover
`in their native habitat.
`2.
`The Corps of Engineers and Fish and Wildlife Service have exercised their discretion and
`funded or facilitated the production and release of hatchery summer steelhead into winter
`steelhead habitat, which has jeopardized the continued existence of winter steelhead and
`destroyed and adversely modified their critical habitat. In turn, NMFS evaluated the effects on
`winter steelhead of adopting a Hatchery and Genetic Management Plan (“HGMP”) for hatchery
`summer steelhead, and issued an unlawful Biological Opinion (“BiOp”) finding that the program
`does not jeopardize the continued existence of winter steelhead or destroy or adversely modify
`their critical habitat. NMFS also violated ESA regulations when it approved the hatchery
`summer steelhead HGMP. Finally, NMFS violated the National Environmental Policy Act
`(“NEPA”) when it issued an unlawful Environmental Impact Statement (“EIS”) and Record of
`Decision (“ROD”) to approve the hatchery summer steelhead program.
`Jurisdiction.
`An actual, justiciable controversy exists between the parties.
`3.
`This Court has jurisdiction to resolve claims against NMFS pursuant to 28 U.S.C. § 1131.
`4.
`This Court has jurisdiction to resolve claims against the Corps of Engineers and Fish and
`Wildlife Service pursuant to 28 U.S.C. § 1131 and 16 U.S.C. § 1540(g)(1). Pursuant to the
`citizen suit provision of the ESA, more than 60 days ago, Plaintiffs served the Corps of
`Engineers and the Fish and Wildlife Service with written notice of their intent to sue for claims
`properly brought pursuant to the citizens suit provision. 16 U.S.C. § 1540(g)(2). Neither the
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`Case 6:21-cv-00034-AA Document 1 Filed 01/08/21 Page 3 of 14
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`Corps of Engineers or the Fish and Wildlife Service has remedied violations of the ESA, which
`are ongoing and likely to continue.
`5.
`The injunctive relief Plaintiffs seek is proper under 16 U.S.C. § 1540(g)(1)(A), 28 U.S.C.
`§ 1651(a), 28 U.S.C. §§ 2201–02, and 5 U.S.C. §§ 701–06.
`6.
`Venue is proper in this Court under 16 U.S.C. § 1540(g)(3)(A), 28 U.S.C. § 1391, and
`Local Rule (“LR”) 3-2(3), because the South Santiam Hatchery and other facilities or activities
`owned or financed by the Corps of Engineers and/or the Fish and Wildlife Service are located in
`Linn County. Hatchery summer steelhead produced and released into the South Santiam River
`exist in Linn County. The Minto Fish Facility and other facilities or activities owned or financed
`by the Corps of Engineers and/or the Fish and Wildlife Service are located in Marion County.
`Hatchery summer steelhead released into the North Santiam River exist in Marion County. A
`substantial part of the events or omissions giving rise to the claims herein occurred within Linn
`County and Marion County. Agency records and/or personnel are located in Linn County and
`Marion County.
`
`Parties.
`Plaintiff Willamette Riverkeeper is a non-profit organization founded in 1996, and
`7.
`focuses on protecting and restoring the resources of the Willamette River basin in Oregon.
`Willamette Riverkeeper works on programs and projects ranging from Clean Water Act
`compliance and river education, to Superfund cleanup and restoring habitat. Willamette
`Riverkeeper filed suit to force the Corps of Engineers and other federal action agencies to
`consult with NMFS as to the effects of federal projects and facilities on ESA-listed fish in the
`upper Willamette River basin, including winter steelhead trout. That consultation resulted in a
`2008 Biological Opinion related to effects of federal facilities and projects on winter steelhead
`trout and spring Chinook salmon in the upper Willamette River basin.
`8.
`Plaintiff The Conservation Angler Conservation Angler is non-profit conservation group
`that advocates for wild fish and fisheries, and advocates to protect and conserve wild steelhead,
`salmon, trout and char throughout their Pacific range. The Conservation Angler is a watch-dog
`organization - holding public agencies, countries and nations accountable for protecting and
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`conserving wild fish for present and future generations - using education, legal, administrative
`and political means necessary to prevent the extinction and to foster a long-term recovery of wild
`steelhead trout, salmon, and char to fishable and ultimately, harvestable abundance.
`9.
`Plaintiffs Willamette Riverkeeper and Conservation Angler have suffered and continue to
`suffer harm from Defendants’ violations of the ESA and NEPA. Plaintiffs’ members include
`anglers who enjoy fishing, and would seek and enjoy catch and release fishing of populations of
`winter steelhead trout in the North Santiam River and South Santiam River basins, if the
`populations were recovered. Plaintiffs’ members include anglers and others with scientific and
`professional interests in the genetic integrity of winter steelhead trout. Plaintiffs’ members
`include anglers who are outfitters or guides who seek to advance commercial interests in what
`could be a winter steelhead trout fishery in the North Santiam River and South Santiam River
`basins.
`Defendant NMFS is an agency of the U.S. Department of Commerce. NMFS is
`10.
`responsible for the survival and recovery of certain aquatic species listed under the ESA,
`including winter steelhead in the upper Willamette River basin. NMFS must also comply with
`NEPA.
`11.
`Defendant Barry Thom is the Regional Administrator of NMFS. He is sued in his official
`capacity. Mr. Thom is responsible for actions or decisions alleged herein.
`12.
`Defendant Corps of Engineers is an agency of the U.S. Department of the Army. The
`Corps of Engineers built and operates federal dams and other facilities in the North Santiam
`River and South Santiam River basins. The Corps of Engineers built fish hatcheries in the North
`Santiam and South Santiam River basins. The Corps of Engineers funds, facilitates, or otherwise
`authorizes the production and release of hatchery summer steelhead that jeopardize winter
`steelhead in the upper Willamette River basin.
`13.
`Defendant Michael Helton is the District Engineer for the Corps of Engineers. Mr. Helton
`is sued in his official capacity. Mr. Helton is responsible for actions or decisions alleged herein.
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`Defendant Fish and Wildlife Service is an agency within the U.S Department of the
`14.
`Interior. The Fish and Wildlife Service must comply with the ESA. The Fish and Wildlife
`Service has funded aspects of the hatchery summer steelhead program.
`15.
`Defendant Robyn Thorson is the Regional Director of the Fish and Wildlife Service. Ms.
`Thorson is sued in her official capacity. Ms. Thorson is responsible for actions or decisions
`alleged herein.
`
`Allegations.
`The Willamette River originates in the Cascade Mountains in Oregon and flows generally
`16.
`northward to its confluence with the Columbia River. The mainstem Willamette River is 187
`miles long. At river mile 27, the Willamette River falls approximately 35 feet. By volume of
`water, Willamette Falls is the largest in Oregon, and the sixth largest in the United States.
`Historically, in its natural state, Willamette Falls was a barrier to the upstream migration of
`anadromous fish, except during relatively high flows in the winter or early spring. Historically,
`steelhead trout (Oncorhynchus mykiss) and Chinook salmon (Oncorhynchus tshawytscha) were
`able to ascend Willamette Falls to reach the Willamette River basin above the falls. The part of
`the Willamette River basin above Willamette Falls is called the “upper” Willamette River.
`17.
`The North Santiam River originates near Three Fingered Jack in the Cascade Mountains
`and flows roughly 92 miles to its confluence with the South Santiam River. The Corps of
`Engineers built Big Cliff Dam and Detroit Dam on the North Santiam River. Big Cliff Dam is
`downstream of Detroit Dam, and is a barrier to the upstream volitional migration of winter
`steelhead.
`18.
`The South Santiam River originates at the confluence of Sevenmile and Squaw Creeks in
`the Cascade Mountains and flows roughly 66 miles to its confluence with the North Santiam
`River. The Corps of Engineers built Foster Dam on the South Santiam River. Foster Dam is a
`barrier to the volitional upstream migration of winter steelhead.
`19.
`The North Santiam River and South Santiam River join to form the Santiam River, which
`flows roughly 10 miles to its confluence with the Willamette River upstream of Willamette Falls.
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`20. Winter steelhead in the upper Willamette River basin are usually dark-olive in color,
`shading to silvery-white on the underside, with a speckled body and a pink to red stripe running
`along the sides. Life histories of individual winter steelhead are diverse. Winter steelhead eggs
`generally develop in gravels for up to four months—from April through July. Peak emergence
`for juvenile winter steelhead is in July. After emerging, juvenile winter steelhead rear in
`freshwater generally for two years before migrating to the ocean. Some winter steelhead rear in
`freshwater for up to seven years. Some winter steelhead may forgo anadromy and residualize.
`Winter steelhead that migrate to the ocean and back develop a slimmer profile, become more
`silvery in color, and typically grow larger than those that residualize.
`21.
`The majority of adult winter steelhead in the Upper Willamette River return to freshwater
`in January through April. Most adult winter steelhead pass Willamette Falls from early February
`through early April. Most adult winter steelhead spawn in April and May. Winter steelhead
`spawn in both mainstem rivers and tributaries. Some steelhead are iteroparous. Subyearling
`winter steelhead emerge from gravels typically between 25 and 70 days after spawning.
`Emergence depends on stream temperatures. Winter steelhead fry generally emerge in July.
`22.
`Four independent populations of winter steelhead exist upstream of Willamette Falls: in
`the Mollala, North Santiam, South Santiam, and Calapooia Rivers. Between 1980 and 1990,
`roughly 10,000 adult winter steelhead returned each year to Willamette Falls.
`23.
`In 1938, Congress enacted the Flood Control Act of 1938, which authorizes the Corps of
`Engineers to build dams, reservoirs, and related projects in the Willamette River basin. The
`Willamette Valley Project is comprised of 13 dams in the Willamette River basin constructed,
`operated, and maintained by the Corps of Engineers. The Willamette Valley Project includes
`dams on the North and South Santiam Rivers. The dams on the North and South Santiam Rivers
`block winter steelhead from access to roughly one-third of historic habitat.
`24.
`After parts of the Willamette Valley Project were built, beginning in 1965, hatchery
`winter steelhead were released into some streams in the upper Willamette River basin. These fish
`were a mix of native and out-of-basin stocks, and returned in early winter. These fish are
`currently found in some streams on the west side of the Willamette Valley. Winter steelhead
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`occupying the westside rivers are genetically distinct from those occupying the eastside rivers.
`The winter steelhead hatchery program ended in 1999.
`25.
`Historically, there were no summer steelhead in the upper Willamette River basin. In
`1966, the Oregon Department of Fish and Wildlife (“ODFW”) introduced hatchery summer
`steelhead into the upper Willamette River basin. ODFW introduced hatchery summer steelhead
`from the Skamania Hatchery on the Washougal River in Washington.
`26.
`Hatchery summer steelhead are released as yearlings. Yearlings are roughly one year-old.
`Hatchery summer steelhead exhibit life histories similar to winter steelhead. Some hatchery
`summer steelhead juveniles residualize. Hatchery summer steelhead that emigrate to the ocean
`generally return to freshwater in two years. Most hatchery summer steelhead that return cross
`Willamette Falls in June. Returning hatchery summer steelhead reach the Santiam River basin
`from June through August. Some hatchery summer steelhead return to traps at fish collection
`facilities. Some hatchery summer steelhead are caught by anglers. Some hatchery summer
`steelhead spawn with each other. Some hatchery summer steelhead spawn with winter steelhead.
`Some hatchery summer steelhead are iteroparous.
`27.
`On March 25, 1999, NMFS listed winter steelhead in the upper Willamette River
`"evolutionarily significant unit" (“ESU”) as threatened with extinction under the ESA. 64 Fed.
`Reg. 14517 (March 25, 1999). The ESU comprises the upper Willamette River basin south to the
`Calapooia River, inclusive. In 2006, NMFS listed or re-listed under the ESA ten "distinct
`population segments" (“DPSs”) of West Coast steelhead, including in the upper Willamette
`River. 71 Fed. Reg. 834, 860 (Jan. 5, 2006). Winter steelhead listed under the ESA occupy each
`of four subbasins: the Mollala, North Santiam, South Santiam, and Calapooia Rivers. Each of
`these river basins has its own distinct population of winter steelhead. Among the four
`populations, most (70%) winter steelhead return to the Santiam River basin.
`28. Winter steelhead have been found in the upper Willamette River upstream from its
`confluence with the Calapooia River. Winter steelhead have been found in the McKenzie River.
`Winter steelhead have been found in Fall Creek, a tributary to the Middle Fork Willamette River.
`29.
`In 2007, the Corps of Engineers and other federal agencies consulted with NMFS to
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`obtain its opinion as to effects of the Willamette Project—including fish hatcheries—on winter
`steelhead and spring Chinook salmon. In 2008, NMFS issued a BiOp finding that the Willamette
`Project jeopardizes the continued existence of winter steelhead and spring Chinook. NMFS
`proposed a reasonable and prudent alternative to avoid jeopardy. The alternative provides the
`Corps of Engineers will implement HGMPs for hatchery summer steelhead and other hatchery
`fish after NMFS approves of the HGMPs.
`30.
`In June, 2018, the Corps of Engineers and ODFW submitted to NMFS a proposed
`hatchery summer steelhead HGMP. The hatchery summer steelhead HGMP proposes to release
`121,000 summer steelhead annually into both the North and South Santiam Rivers for a
`temporary period. The goal is to have 14,880 adult hatchery summer steelhead return to the
`upper Willamette River basin to be available for fishing, and enough entering fish traps to use as
`broodstock.
`31.
`On May 17, 2019, NMFS issued a BiOp to evaluate the proposed hatchery summer
`steelhead HGMP and other HGMPs. NMFS also prepared an EIS under NEPA to consider
`alternatives to approving the hatchery summer steelhead HGMP and other HGMPs. On May 21,
`2019, NMFS issued a ROD to approve the hatchery summer steelhead HGMP and other
`HGMPs.
`32.
`There are four fish counting stations for steelhead returning to the Santiam River basin.
`The four fish counting stations are at Willamette Falls, at the Bennett Dams and Minto Fish
`Facility on the North Santiam, and the Foster Fish Facility on the South Santiam.
`33.
`Hatchery summer steelhead are produced at the South Santiam Hatchery on the South
`Santiam River. Hatchery summer steelhead are released from the South Santiam Hatchery into
`the South Santiam River. The Corps of Engineers owns the land on which the South Santiam
`Hatchery was built. The Corps of Engineers owns buildings or facilities within the South
`Santiam Hatchery. The Corps of Engineers has discretion whether to allow use of its land,
`buildings, or facilities at the South Santiam Hatchery. The Corps of Engineers has executed
`licenses, special use permits or other instruments that allow ODFW to use land, buildings or
`facilities, or conduct operations, at the South Santiam Hatchery.
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`The Foster Fish Facility is across the South Santiam River from the South Santiam
`34.
`Hatchery. The Corps of Engineers funded construction of the Foster Fish Facility. The Corps of
`Engineers owns the Foster Fish Facility. The Corps of Engineers has discretion whether to allow
`use of or operations at the Foster Fish Facility. The Corps of Engineers has executed licenses,
`special use permits, or other instruments that allow ODFW to use or conduct operations at the
`Foster Fish Facility. The Corps of Engineers enables or facilitates winter steelhead collected at
`the Foster Fish Facility to be transported to habitat above Foster Dam.
`35.
`Some hatchery summer steelhead produced at the South Santiam Hatchery are transferred
`to the Minto Fish Facility for acclimation to water from the North Santiam River. Some hatchery
`summer steelhead produced at the South Santiam Hatchery are transferred to the Minto Fish
`Facility for release into the North Santiam River. Adult hatchery summer steelhead are collected
`at the Minto Fish Facility on the North Santiam River. The Corps of Engineers owns the land on
`which the Minto Fish Facility was built. The Corps of Engineers owns buildings or facilities at
`the Minto Fish Facility. The Corps of Engineers holds a water right for water used at the Minto
`Fish Facility. The Corps of Engineers has discretion whether to allow use of or operations at the
`Minto Fish Facility. The Corps of Engineers has entered into contracts, leases, special use
`permits, or other instruments to allow ODFW to use facilities, or conduct operations at, the
`Minto Fish Facility.
`36.
`The Fish and Wildlife Service administers the Sport Fish Restoration Act. The Fish and
`Wildlife Service has discretion whether to fund the hatchery summer steelhead program. The
`Fish and Wildlife Service funds the hatchery summer steelhead program. The Fish and Wildlife
`Service funds the hatchery summer steelhead program under the Sport Fish Restoration Act.
`Hatchery summer steelhead funded under the Sport Fish Restoration Act are produced in the
`Santiam River basin. Hatchery summer steelhead funded under the Sport Fish Restoration Act
`are released into the South Santiam River. Hatchery summer steelhead funded under the Sport
`Fish Restoration Act are released into the North Santiam River. Hatchery summer steelhead
`funded under the Sport Fish Restoration Act return to the South Santiam River. Hatchery
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`summer steelhead funded under the Sport Fish Restoration Act return to the North Santiam
`River.
`ODFW authorizes and licenses fishing for hatchery summer steelhead in the upper
`37.
`Willamette River basin. The hatchery summer steelhead fishery begins in March and extends
`through December. The peak of the hatchery summer steelhead fishery is in July. Adult winter
`steelhead are present in the South Santiam River when ODFW authorizes fishing for hatchery
`summer steelhead in the South Santiam River. Adult winter steelhead are present in the North
`Santiam River when ODFW authorizes fishing for hatchery summer steelhead in the North
`Santiam River. Juvenile winter steelhead are present in the South Santiam River when ODFW
`authorizes fishing for hatchery summer steelhead in the South Santiam River. Juvenile winter
`steelhead are present in the North Santiam River when ODFW authorizes fishing for hatchery
`summer steelhead in the North Santiam River. If caught by an angler, juvenile winter steelhead
`may experience higher mortality rates than adult winter steelhead. Juvenile winter steelhead may
`swallow a fishing hook.
`38.
`ODFW authorizes fishing for “wild steelhead” in the North Santiam River from July 1 to
`August 31. ODFW authorizes fishing for “wild steelhead” in the South Santiam River from July
`1 to August 31. Anglers identify “wild steelhead” as steelhead that do not have a clipped or
`marked adipose fin. Winter steelhead are caught and kept under the allowance to catch and keep
`“wild steelhead.”
`39.
`ODFW authorizes anglers to use barbed hooks to fish for hatchery summer steelhead.
`ODFW authorizes anglers to use bait to fish for hatchery summer steelhead. Barbed hooks can
`result in injury or mortality to a hooked fish. The use of bait can result in injury or mortality to a
`hooked fish.
`40.
`ODFW has “recycled” adult hatchery summer steelhead that returned to fish traps.
`ODFW has recycled adult hatchery summer steelhead to enhance fishing opportunities for
`summer steelhead. From 2012 to 2014, ODFW recycled into the South Santiam River between
`2,651 and 3,901 hatchery summer steelhead annually. In 2019, ODFW recycled hatchery
`summer steelhead back into the South Santiam River. In 2019, ODFW recycled back into the
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`North Santiam River adult hatchery summer steelhead that returned to the Minto Fish Facility. In
`2020, ODFW recycled hatchery summer steelhead back into the South Santiam River. In 2020,
`ODFW recycled hatchery summer steelhead back into the North Santiam River.
`41.
`Unclipped steelhead that return to the Foster Fish Facility are transported above the dam.
`Unclipped steelhead return to the river near the Foster Fish Facility and do not enter the fish trap,
`and spawn immediately below Foster Dam. Hatchery summer steelhead are more numerous than
`winter steelhead in the habitat immediately below Foster Dam.
`42. Water temperatures affect winter steelhead. Dissolved oxygen in water affects winter
`steelhead. The State of Oregon has designated the North Santiam River as “water quality
`limited” under the Clean Water Act for the parameters of temperature and dissolved oxygen. The
`State of Oregon has designated the South Santiam River as “water quality limited” under the
`Clean Water Act for the parameters of temperature and dissolved oxygen. Stout Creek in the
`North Santiam River basin is impaired due to high temperatures. Thomas Creek in the South
`Santiam River basin is impaired due to high temperatures. Hamilton Creek in the South Santiam
`River basin is impaired due to high temperatures. Hamilton Creek in the South Santiam River
`basin is impaired due to lack of dissolved oxygen.
`43.
`Hatchery summer steelhead released into the Santiam River basin compete with winter
`steelhead. Hatchery summer steelhead released into the Santiam River basin prey on winter
`steelhead. Hatchery summer steelhead released into the Santiam River basin displace winter
`steelhead from habitat. Hatchery summer steelhead released into the Santiam River basin
`interbreed with winter steelhead, degrading their genetic fitness. Fishing for hatchery summer
`steelhead in the Santiam River basin results in harm or death to winter steelhead. Hatchery
`summer steelhead released into the Santiam River basin jeopardize the continued existence of
`winter steelhead, impede the species’ recovery, and destroy or adversely modify the species’
`critical habitat.
`
`Claims for Relief: ESA
`Plaintiffs re-allege the allegations above.
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`44.
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`Under Section 7 of the ESA, the Corps of Engineers and the Fish and Wildlife Service
`45.
`shall insure that any action they authorize, fund, or carry out is not likely to jeopardize the
`continued existence of any listed species or result in the destruction or adverse modification of
`the species’ critical habitat. 16 U.S.C. § 1536(a)(2). The Corps of Engineers and the Fish and
`Wildlife Service have authorized, funded, or carried out aspects of the hatchery summer
`steelhead program, which has jeopardized the continued existence of winter steelhead and
`resulted in the destruction and adverse modification of its critical habitat.
`46.
`Under Section 7 of the ESA, NMFS may issue an opinion whether federal agency action
`may jeopardize the continued existence of a listed species or adversely modify or destroy its
`critical habitat. 16 U.S.C. §§ 1536(a)(2), (b). NMFS issued an unlawful BiOp that erroneously
`finds that the hatchery summer steelhead program does not jeopardize winter steelhead or result
`in the destruction or adverse modification of its critical habitat.
`47.
`Under Section 7 of the ESA, NMFS may issue an incidental take statement that specifies
`the impact of such incidental taking on winter steelhead and reasonable and prudent measures
`necessary or appropriate to minimize such impact. 16 U.S.C. § 1536(b)(4)(C). NMFS issued an
`incidental take statement that fails to include reasonable and prudent measures necessary or
`appropriate to minimize such impacts.
`48.
`To be lawfully approved, the hatchery summer steelhead HGMP must evaluate,
`minimize, and account for the program’s genetic and ecological effects on winter steelhead,
`including competition, predation, and genetic introgression. 50 C.F.R. § 223.203(i)(E). The
`hatchery summer steelhead HGMP does not evaluate, minimize, or account for the genetic or
`ecological effects of summer steelhead on winter steelhead. On these bases, NMFS’s decision to
`approve the hatchery summer steelhead HGMP is unlawful.
`49.
`To be lawfully approved, the hatchery summer steelhead HGMP must describe
`interrelationships and interdependencies with fisheries management. 50 C.F.R. § 223.203(i)(F).
`The combination of the hatchery summer steelhead program and harvest management must be
`designed to provide as many benefits and as few biological risks as possible for winter steelhead.
`Id. The hatchery summer steelhead HGMP is not designed to provide as many benefits and as
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`few biological risks as possible for winter steelhead. On this basis, NMFS’s decision to approve
`the hatchery summer steelhead HGMP is unlawful.
`Claims for Relief: NEPA.
`Plaintiffs re-allege the allegations above.
`50.
`The EIS fails to include information of a “high quality,” and “[a]ccurate scientific
`51.
`analysis.” 40 C.F.R. § 1500.1(b). The EIS fails to take a “hard look” at the consequences and
`effects on winter steelhead caused by the hatchery summer steelhead program.
`52.
`The ROD is unlawful because it is based on a deficient EIS.
`Relief Requested.
`Plaintiffs respectfully request that the Court grant the following relief:
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`Issue a declaratory judgment that the Corps of Engineers and the Fish and Wildlife
`1.
`Service violated the ESA by undertaking actions that jeopardize the continued existence of
`winter steelhead and destroy or adversely modify its critical habitat;
`2.
`Issue a declaratory judgment that NMFS violated the ESA by issuing an unlawful BiOp
`as to the hatchery summer steelhead program;
`3.
`Issue a declaratory judgment that NMFS violated the ESA when it approved the hatchery
`summer steelhead HGMP;
`4.
`Issue a declaratory judgment that NMFS violated NEPA when it issued an EIS and ROD
`to evaluate the environmental effects of, and to approve, the hatchery summer steelhead HGMP;
`5.
`Vacate the BiOp and Record of Decision, as to the hatchery summer steelhead program;
`6.
`Order the cessation of releases of hatchery summer steelhead into the North Santiam
`River and the South Santiam River basins in the period before the Court considers and deems
`lawful any subsequent BiOp or subsequent approval of any hatchery summer steelhead HGMP;
`7.
`Award Plaintiffs reasonable costs, expenses, and attorneys’ fees;
`8.
`Grant such other relief as Plaintiffs may pray for or the Court deems just and proper.
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`Date: January 8, 2021.
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`Respectfully submitted,
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`/s/ Peter M. K. Frost
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`Peter M. K. Frost (OSB #911843)
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`Complaint for Declaratory and Injunctive Relief, No. 6:21-cv-34
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`Case 6:21-cv-00034-AA Document 1 Filed 01/08/21 Page 14 of 14
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` Sangye Ince-Johannsen (OSB #091138)
` Elisabeth A. Holmes (OSB #120254)
` Attorneys for Plaintiffs
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`Complaint for Declaratory and Injunctive Relief, No. 6:21-cv-34
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