FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL WILDLIFE FEDERATION; 

IDAHO WILDLIFE FEDERATION;

WASHINGTON WILDLIFE FEDERATION;

SIERRA CLUB; TROUT UNLIMITED;

PACIFIC COAST FEDERATION OF

FISHERMEN’S ASSOCIATIONS;

INSTITUTE FOR FISHERIES RESOURCES;

IDAHO RIVERS UNITED; IDAHO

STEELHEAD AND SALMON UNITED;

NORTHWEST SPORT FISHING

No. 06-35011 INDUSTRY ASSOCIATION, SALMON FOR

ALL; COLUMBIA RIVERKEEPER; NW D.C. Nos.  ENERGY COALITION; FEDERATION OF CV-01-00640-JAR

FLY FISHERS; AMERICAN RIVERS, 05-00023-JAR

INC.; EASTERN OREGON IRRIGATORS

ASSOCIATION,

Plaintiffs-Appellees,

v.

NATIONAL MARINE FISHERIES

SERVICE; UNITED STATES ARMY

CORPS OF ENGINEERS; U.S.

BUREAU OF RECLAMATION; DONALD

L. EVANS, in his official capacity 

3999
as Secretary of Commerce; NOAA 

FISHERIES; D. ROBERT LOHN, in his

official capacity as Regional

Direct of NOAA Fisheries,

Defendants,

NORTHWEST IRRIGATION UTILITIES;

PUBLIC POWER COUNCIL; BPA

CUSTOMER GROUP; FRANKLIN

COUNTY FARM BUREAU FEDERATION;

GRANT COUNTY FARM BOARD

FEDERATION; WASHINGTON FARM

BUREAU FEDERATION; CLARKSON  GOLF & COUNTRY CLUB; STATE OF

MONTANA; KOOTENAI TRIBE OF

IDAHO,

Defendant-Intervenors,

and

STATE OF OREGON,

Plaintiff-IntervenorAppellee,

STATE OF IDAHO,

Defendant-IntervenorAppellant. 

4000 NAT’L WILDLIFE FEDERATION v. STATE OF IDAHO
NATIONAL WILDLIFE FEDERATION; 

IDAHO WILDLIFE FEDERATION;

WASHINGTON WILDLIFE FEDERATION;

SIERRA CLUB; TROUT UNLIMITED;

PACIFIC COAST FEDERATION OF

FISHERMEN’S ASSOCIATIONS;

INSTITUTE FOR FISHERIES RESOURCES;

IDAHO RIVERS UNITED; IDAHO

STEELHEAD AND SALMON UNITED;

NORTHWEST SPORT FISHING

INDUSTRY ASSOCIATION, SALMON FOR

ALL; COLUMBIA RIVERKEEPER; NW

ENERGY COALITION; FEDERATION OF No. 06-35019

FLY FISHERS; AMERICAN RIVERS, D.C. No.

INC.; EASTERN OREGON IRRIGATORS  CV-01-00640-JAR

ASSOCIATION,

OPINION Plaintiffs-Appellees,

v.

NATIONAL MARINE FISHERIES

SERVICE; UNITED STATES ARMY

CORPS OF ENGINEERS; U.S.

BUREAU OF RECLAMATION,

Defendants-Appellants,

STATE OF OREGON,

Plaintiff-IntervenorAppellee,

and 

NAT’L WILDLIFE FEDERATION v. STATE OF IDAHO 4001
DONALD L. EVANS, in his official 

capacity as Secretary of

Commerce; NOAA FISHERIES; D.

ROBERT LOHN, in his official

capacity as Regional Director of

NOAA Fisheries,

Defendants,

NORTHWEST IRRIGATION UTILITIES;

PUBLIC POWER COUNCIL; BPA

CUSTOMER GROUP; FRANKLIN 

COUNTY FARM BUREAU FEDERATION;

GRANT COUNTY FARM BOARD

FEDERATION; WASHINGTON FARM

BUREAU FEDERATION; STATE OF

IDAHO; CLARKSON GOLF &

COUNTRY CLUB; STATE OF

MONTANA; KOOTENAI TRIBE OF

IDAHO,

Defendant-Intervenors. 

Appeal from the United States District Court

for the District of Oregon

James A. Redden, District Judge, Presiding

Argued and Submitted

June 1, 2006—San Francisco, California

Filed April 9, 2007

Before: A. Wallace Tashima, Sidney R. Thomas, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Thomas

4002 NAT’L WILDLIFE FEDERATION v. STATE OF IDAHO
COUNSEL

Mark Eames, NOAA Office of General Counsel, Seattle,

Washington; Gayle Lear, Assistant Division Counsel, NorthNAT’L WILDLIFE FEDERATION v. STATE OF IDAHO 4005
western Division, U.S. Army Corps of Engineers, Portland,

Oregon; Kelly A. Johnson, Acting Assistant Attorney General, Fred Disheroon, Ruth Ann Lowery, Ellen J. Durkee, and

Jennifer L. Scheller, Attorneys, Environment & Natural

Resources Division, U.S. Department of Justice, Washington

D.C., for the federal defendants-appellants. 

Matthew A. Love and Sam Kalen, Van Ness Feldman, P.C.,

Seattle, Washington, for defendant-appellant BPA Customer

Group. 

Lawrence G. Wasden, Attorney General, Clive J. Strong,

Deputy Attorney General, and Clay R. Smith, Deputy Attorney General, State of Idaho, Boise, Idaho, for defendantintervenor-appellant State of Idaho. 

Todd D. True and Stephen D. Mashuda, Earthjustice, Seattle,

Washington; Daniel J. Rohlf, Pacific Environmental Advocacy Center, Portland, Oregon, for plaintiff-appellee National

Wildlife Federation. 

Hardy Myers, Attorney General, Mary H. Williams, Solicitor

General, David E. Leith, Assistant Attorney General, and Stephen K. Bushong, State of Oregon, Salem, Oregon, for

plaintiff-intervenor-appellee State of Oregon. 

Koward G. Arnett, Karnopp Petersen, LLP, Bend, Oregon;

David J. Cummings, Nez Perce Tribe, Lapwai, Idaho; Christopher B. Leahy, Fredericks, Pelcyger & Hester, LLC, Louisville, Colorado; Tim Weaver, Law Offices of Tim Weaver,

Yakima, Washington, for amici curiae Treaty Tribes. 

Robert D. Thornton and Paul S. Weiland, Nossaman, Guthner, Knox & Elliott, LLP, Irvine, California, for amicus curiae

National Association of Homebuilders. 

Rob McKenna, Attorney General, and Michael S. Grossman,

Assistant Attorney General, State of Washington, Olympia,

Washington, for amicus curiae State of Washington. 

4006 NAT’L WILDLIFE FEDERATION v. STATE OF IDAHO
John C. Bruning, Attorney General, David D. Cookson,

Assistant Attorney General, State of Nebraska, Lincoln,

Nebraska; Thomas R. Wilmoth, Special Assistant Attorney

General, Fennemore Craig, P.C., Lincoln, Nebraska, for

amicus curiae State of Nebraska. 

James L. Buchal, Murphy & Buchal LLP, Portland, Oregon,

for amicus curiae Columbia Snake River Irrigators Association. 

Russell C. Brooks, Bellevue, Washington; M. Reed Hopper

and Scott A. Sommerdorf, Pacific Legal Foundation, Sacramento, California, for amicus curiae Washington Farm

Bureau Federation. 

OPINION

THOMAS, Circuit Judge: 

These consolidated appeals bring us once more to the

Pacific Northwest, for another round in the complex and longrunning battle over salmon and steelhead listed under the

Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-1544.

In this ESA action brought by the National Wildlife Federation and other plaintiffs (collectively “NWF”), we consider a

November 2004 Biological Opinion (“2004 BiOp”) addressing the effects of proposed operations of Federal Columbia

River Power System (“FCRPS” or “Columbia River System”)

dams and related facilities on listed fish in the lower Columbia and Snake Rivers. The 2004 BiOp, issued by the agency

formerly known as the National Marine Fisheries Service of

the National Oceanic and Atmospheric Administration

(“NMFS”),1 found that proposed FCRPS operations for 2004

1The agency is now NOAA Fisheries. Because much of the record

before us uses the prior name, we shall refer to the agency as “NMFS” in

this opinion. 

NAT’L WILDLIFE FEDERATION v. STATE OF IDAHO 4007
through 2014 would not jeopardize the thirteen area salmonid

species that are listed as threatened or endangered, nor

adversely modify their critical habitat. NMFS and the State of

Idaho (collectively “NMFS”) appeal from the district court’s

determination that the 2004 BiOp was structurally flawed and

from certain portions of its chosen remedy. We affirm. 

I

The factual and procedural history of this case was detailed

in our prior opinion. NWF v. NMFS, 422 F.3d 782, 800 (9th

Cir. 2005). As background, and for convenience of reference,

we will briefly review the proceedings to date to place the

present controversy in context. 

Every year hundreds of thousands of salmon and steelhead

travel up and down the Columbia River and its tributaries,

hatching in fresh water, migrating downstream to the sea to

achieve adulthood, and then returning upstream to spawn. The

wild Pacific salmon population has significantly decreased in

recent years, and a number of species of Columbia, Snake,

and Willamette River salmon and steelhead are now protected

by the Endangered Species Act.2 Each of the affected stocks

migrates at a different time of the year to different parts of the

Columbia Basin. 

At issue in this case are the fall juvenile Chinook salmon

and steelhead migrating downstream to the Pacific Ocean.

These fish must pass a number of dams on their journey to the

sea and suffer a very high mortality rate in doing so. Each

dam in the migration corridor of the mainstream Snake and

2Snake River Chinook salmon (fall-run); Snake River Chinook salmon

(spring/summer-run); Snake River sockeye salmon; Upper Columbia

River steelhead; Snake River Basin steelhead; Lower Columbia River

coho salmon; Lower Columbia River steelhead; Middle Columbia River

steelhead; Upper Willamette River steelhead; Lower Columbia River Chinook salmon; Upper Willamette River Chinook salmon; Upper Columbia

River Chinook salmon (spring-run); and Columbia River chum salmon. ‘

4008 NAT’L WILDLIFE FEDERATION v. STATE OF IDAHO
Columbia rivers has a bypass system. At some dams, the

bypass consists of screens in front of the turbine intakes that

divert the salmon and steelhead into a passageway through the

dam and downstream. At others, the bypass system diverts the

fish into barges for transportation around the dam. 

A number of federal, state, and tribal entities are involved

in the operation of the Columbia River System. The U.S.

Army Corps of Engineers and the Bureau of Reclamation

manage the dams for multi-purpose operations; the Bonneville Power Administration manages federal power generated

from the dams; and the Federal Energy Regulatory Commission plays a number of roles, including licensing of nonfederal hydro-power projects. State regulation impacts the

system through governance of water diversions from the river

and state conservation programs. A number of federally recognized Indian Tribes retain treaty fishing rights in the waters

of the Columbia River System.3

The issue before us is application of the ESA on the management of the Columbia River System. The ESA requires

federal agencies, in consultation with what is known as the

“consulting agency,” to conserve species listed under the

ESA. The ESA requires federal agencies to “insure that any

action authorized, funded, or carried out by such agency . . .

is not likely to jeopardize the continued existence of any

endangered species or threatened species or result in the

destruction or adverse modification of [designated critical]

habitat . . . .” 15 U.S.C. § 1536(a)(2). The ESA imposes a procedural consultation duty whenever a federal action may

affect an ESA-listed species. Thomas v. Peterson, 753 F.2d

3

See, e.g., Treaty with the Nez Perces, art. 3, June 11, 1855, 12 Stat.

957; Treaty with the Tribes of the Middle Oregon (Confederated Tribes

of the Warm Springs Reservation of Oregon), June 25, 1855, 12 Stat. 963;

Treaty with the Yakima, June 9, 1855, 12 Stat. 951; Treaty with the Wallawalla, Cayuse, et al. (Confederated Tribes of the Umatilla Indian Reservation), June 9, 1855, 12 Stat. 945. In their amici brief, the treaty tribes

support the position of NWF in this action. 

NAT’L WILDLIFE FEDERATION v. STATE OF IDAHO 4009
754, 763 (9th Cir. 1985). To that end, the agency planning the

action, usually known as the “action agency,” must consult

with the consulting agency. This process is known as a “Section 7” consultation. The process is usually initiated by a formal written request by the action agency to the consulting

agency. After consultation, investigation, and analysis, the

consulting agency then prepares a biological opinion. See

generally Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife

Serv., 273 F.3d 1229, 1239 (9th Cir. 2001). In this case, the

action agencies are the U.S. Army Corps of Engineers and the

Bureau of Reclamation, while the consulting agency is

NMFS. 

The consulting agency evaluates the effects of the proposed

action on the survival of species and any potential destruction

or adverse modification of critical habitat in a biological opinion, 16 U.S.C. § 1536(b), based on “the best scientific and

commercial data available,” id. § 1536(a)(2). The biological

opinion includes a summary of the information upon which

the opinion is based, a discussion of the effects of the action

on listed species or critical habitat, and the consulting agency’s opinion on “whether the action is likely to jeopardize the

continued existence of a listed species or result in the destruction or adverse modification of critical habitat. . . .” 50 C.F.R.

§ 402.14(h)(3). In making its jeopardy determination, the consulting agency evaluates “the current status of the listed species or critical habitat,” the “effects of the action,” and

“cumulative effects.” Id. § 402.14(g)(2)-(3). “Effects of the

action” include both direct and indirect effects of an action

“that will be added to the environmental baseline.” Id.

§ 402.02. The environmental baseline includes “the past and

present impacts of all Federal, State or private actions and

other human activities in the action area” and “the anticipated

impacts of all proposed Federal projects in the action area that

have already undergone formal or early section 7 consultation.” Id. If the biological opinion concludes that jeopardy is

not likely and that there will not be adverse modification of

critical habitat, or that there is a “reasonable and prudent

4010 NAT’L WILDLIFE FEDERATION v. STATE OF IDAHO
alternative[ ]” to the agency action that avoids jeopardy and

adverse modification and that the incidental taking of endangered or threatened species will not violate section 7(a)(2), the

consulting agency can issue an “Incidental Take Statement”

which, if followed, exempts the action agency from the prohibition on takings4

 found in Section 9 of the ESA. 16 U.S.C.

§ 1536(b)(4); ALCOA v. BPA, 175 F.3d 1156, 1159 (9th Cir.

1999). 

If the consulting agency concludes that an action agency’s

action may jeopardize the survival of species protected by the

ESA, or adversely modify a species’ critical habitat, the

action must be modified. ALCOA, 175 F.3d at 1159. The consulting agency may recommend a “reasonable and prudent

alternative” to the agency’s proposed action. 16 U.S.C.

§ 1536(b)(3)(A). 

The issuance of a biological opinion is considered a final

agency action, and therefore subject to judicial review. Bennett v. Spear, 520 U.S. 154, 178 (1997); Ariz. Cattle Growers’

Ass’n, 273 F.3d at 1235. 

The ESA, as it applies here to the protection of anadromous

fish, requires action agencies — here the U.S. Army Corps of

Engineers and the Bureau of Reclamation — to consult

NMFS to ensure that an agency’s actions do not jeopardize an

ESA-protected species or adversely modify their critical habitat. 16 U.S.C. § 1536(a)-(b). 

Snake River fall Chinook salmon were listed as threatened

species in 1992. In 1993, NMFS issued a biological opinion

concluding that FCRPS operations would not jeopardize the

listed species. The Idaho Department of Fish and Game challenged that opinion. In granting summary judgment for the

4

“The term ‘take’ means to harass, harm, pursue, hunt, shoot, wound,

kill, trap, capture, or collect, or to attempt to engage in any such conduct.”

16 U.S.C. § 1532(19). 

NAT’L WILDLIFE FEDERATION v. STATE OF IDAHO 4011
agency, the district court held that NMFS’s action in issuing

the 1993 biological opinion was arbitrary and capricious

because NMFS had failed adequately to explain several of the

key assumptions in its jeopardy analysis. See Idaho Dep’t of

Fish & Game v. Nat’l Marine Fisheries Serv., 850 F. Supp.

886, 900 (D. Or. 1994). This decision was vacated on appeal

as moot because NMFS had issued a subsequent biological

opinion. Idaho Dep’t of Fish & Game v. Nat’l Marine Fisheries Serv., 56 F.3d 1071, 1075 (9th Cir. 1995). After further

litigation and agency action not directly relevant to this case,

NMFS issued a new biological opinion on December 21,

2000, (the “2000 BiOp”) that superseded the previous biological opinions. 

The 2000 BiOp determined that the continued operation of

FCRPS as proposed by the action agencies would jeopardize

eight listed salmon and steelhead species. Specifically, NMFS

found that the “effects of the proposed or continuing action,

the effects of the environmental baseline, and any cumulative

effects, and considering measures for survival and recovery

specific to other life stages,” would leave the eight species

with too low a likelihood of survival and population recovery.

NMFS thus explored reasonable and prudent alternatives to

the proposed operation and analyzed whether these alternatives, in conjunction with the environmental baseline and

cumulative effects, would avoid jeopardizing the species.

Because NMFS found these alternatives insufficient, it then

assessed whether the added impact of off-site mitigation

activities unrelated to FCRPS operations, including hatchery

and habitat initiatives, would avoid jeopardy, and found that

they would. 

NWF filed an ESA challenge to the 2000 BiOp in the District of Oregon, initiating this litigation. In May 2003, the district court ruled that the 2000 BiOp was arbitrary and

capricious because it relied on (1) federal mitigation actions

that had not been subject to Section 7 consultation and (2)

non-federal mitigation actions that had not been shown rea4012 NAT’L WILDLIFE FEDERATION v. STATE OF IDAHO
sonably certain to occur. NWF v. NMFS, 254 F. Supp. 2d

1196, 1213 (D. Or. 2003). The court remanded to the agencies

for a new BiOp and revisions to the proposed operations,

leaving the 2000 BiOp in effect in the meantime. 

On remand, NMFS made several structural changes to its

jeopardy analysis. The 2004 BiOp’s jeopardy analysis

included in the environmental baseline for the proposed action

the existing FCRPS, various supposedly nondiscretionary

dam operations, and all past and present impacts from discretionary operations. NMFS also adopted a novel “reference

operation” approach in the 2004 BiOp, purportedly in order

to account for the existence of the FCRPS dams. The reference operation consisted of the dams and a hypothetical

regime for operating them, which, according to NMFS, was

the most beneficial to listed fishes of any possible operating

regime. NMFS also found, though, that certain aspects of

FCRPS operations were nondiscretionary, given the dams’

existence, and that those aspects should not be considered part

of the action under ESA review. Essentially, NMFS found

that obligations under statutes besides the ESA — for such

things as irrigation, flood control, and power generation —

were as immutable as the existence of the dams. The BiOp

offers little detail on the nature and extent of the purportedly

nondiscretionary obligations or NMFS’s basis for finding

them to be nondiscretionary. 

Also, instead of assessing whether the listed fishes would

be jeopardized by the aggregate of the proposed agency

action, the environmental baseline, cumulative effects, and

current status of the species, NMFS segregated its analysis,

first evaluating whether the proposed agency action — consisting of only the proposed discretionary operation of the

FCRPS — would have an appreciable net effect on a species.

It considered additional context only if it found such an effect.

By using this so-called comparative approach rather than a

more holistic, aggregate approach, NMFS concluded that the

proposed action would not jeopardize the continued existence

NAT’L WILDLIFE FEDERATION v. STATE OF IDAHO 4013
of the listed fishes. Although the 2004 BiOp did not point to

any improvement in the fishes’ status or the impacts of

FCRPS operations, its new approach attributed only a much

smaller portion of the fishes’ perilous condition to the proposed operations under review. The 2004 BiOp’s jeopardy

analysis also omitted any clear consideration of the impact of

proposed operations on listed species’ chances of recovery,

which had been a prominent feature of earlier analyses. 

On December 30, 2004, NWF filed a Second Supplemental

Complaint against NMFS, challenging the new 2004 BiOp.5

On May 26, 2005, the district court ruled on summary judgment motions filed by NWF, the State of Oregon (which

intervened as a plaintiff), NMFS, and other parties. The court

held the 2004 BiOp invalid on several grounds raised by

NWF and declined to reach the various parties’ other claims.

The district court concluded that there were several structural flaws with the 2004 BiOp’s jeopardy analysis, as well as

more modest defects in the BiOp’s analysis of impacts on critical habitat. First, the court determined that the agencies had

discretion to balance the FCRPS’s various purposes to comply

with ESA’s requirements, and that the 2004 BiOp impermissibly used the “reference operation” to redefine most FCRPS

ongoing operations as part of the “existence of the dams,”

instead of including those operations as part of the agency

action under review. Also, the court held that the 2004 BiOp’s

new, two-stage comparative analysis did not satisfy NMFS’s

obligation to make its jeopardy determination based on the

full natural and human context of the proposed action. The

court also objected to the 2004 BiOp’s complete omission of

recovery needs from its jeopardy analysis. Finally, the court

concluded that the 2004 BiOp did not adequately consider the

5Three months later, NWF filed a Third Supplemental Complaint,

adding claims against the Corps and Bureau of Reclamation that are not

yet before us. 

4014 NAT’L WILDLIFE FEDERATION v. STATE OF IDAHO
recovery implications of the proposed operation’s effects on

designated critical habitat for three listed species. 

On June 10, 2005, the district court granted in part NWF’s

motion for a preliminary injunction requiring NMFS to

increase flow and spill at certain FCRPS dams during the

summer of 2005. On review of that decision, we held that the

district court had not abused its discretion in granting NWF

a preliminary injunction, but remanded to the district court

“the question of whether the injunction should be more narrowly tailored or modified.” NWF, 422 F.3d at 800. 

On September 26, 2005, the district court entered final

judgment under Federal Rule of Civil Procedure 54(b), as to

its May 2005 summary judgment decision on the merits of

NWF’s 2004 BiOp claims. The district court then remanded

to NMFS for yet another revision of the BiOp, which was proceeding at the time of oral argument. Among other things, the

remand order required NMFS to collaborate with interested

states and tribes and to provide a “failure report” if the

remand process appeared unlikely to produce a no-jeopardy

finding within the court’s remand timeframe. After the court

amended its Rule 54(b) order on October 24, 2005, to include

the October 10, 2005, remand order, NMFS appealed again.

We consider here NMFS’s challenges to the merits of the district court’s May 2005 summary judgment decision, and to the

novel elements of the remand order.6

We review the district court’s decision and analysis de

novo. We may affirm the district court’s rejection of the 2004

BiOp, under the Administrative Procedure Act (“APA”), if

the agency action is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C.

6Other claims were raised on appeal by Columbia Snake River Irrigators

Association and Eastern Oregon Irrigators Association, plaintiffs in a separate action below. We address those claims in a memorandum disposition

in No. 05-35736 filed concurrently with this opinion. 

NAT’L WILDLIFE FEDERATION v. STATE OF IDAHO 4015
§ 706(2)(a). Although we may not substitute our judgment for

that of the agency, we must engage in a careful, searching

review to ensure that the agency has made a rational analysis

and decision on the record before it. Pac. Coast Fed’n of

Fishermen’s Ass’ns v. U.S. Bureau of Reclamation, 426 F.3d

1082, 1090 (9th Cir. 2005). 

II

After a careful review of the record, we conclude that the

district court correctly determined that the jeopardy analysis

of the 2004 BiOp contained structural flaws that rendered it

incompatible with the ESA. 

A

[1] The district court properly held that NMFS may not use

a hypothetical “reference operation” in its jeopardy analysis

to exclude from the proposed action’s impacts the effects of

related operations NMFS deems “nondiscretionary.” NMFS

admits that it chose the reference operation approach in order

to avoid “trying to precisely determine the extent of the

Action Agencies’ discretionary operation.” However, ESA

does not permit agencies to ignore potential jeopardy risks by

labeling parts of an action nondiscretionary. ESA’s section 7

requirements “apply to all actions in which there is discretionary Federal involvement or control.” 50 CFR § 402.03. We

cannot approve NMFS’s interpretation of this rule as excluding from the agency action under review any portions of

admittedly-discretionary actions that the agency deems nondiscretionary, since this approach conflicts with ESA’s basic

mandate. 

[2] First, we note that federal agencies, including NMFS,

have not previously taken such a cramped view of § 402.03’s

reference to “discretionary” federal action. See Defenders of

Wildlife v. EPA, 420 F.3d 946, 968 (9th Cir. 2005) (deferring

to the EPA’s interpretation that an agency’s decision to trans4016 NAT’L WILDLIFE FEDERATION v. STATE OF IDAHO
fer water-quality permitting authority to Arizona triggered

section 7 requirements, even though the transfer satisfied all

Clean Water Act [“CWA”] requirements). Indeed, the current

approach is a drastic change from NMFS’s own approach in

the 1995 and 2000 BiOps. Because NMFS’s approach is a

novel one, completely at odds with NMFS’s prior scientific

approaches, it merits little deference. INS v. CardozaFonseca, 480 U.S. 421, 446 n.30 (1987) (“An agency interpretation of a relevant provision which conflicts with the

agency’s earlier interpretation is entitled to considerably less

deference . . . .”) (internal quotation marks omitted). 

[3] Second, NMFS’s current approach to § 402.03 does not

conform to the requirements of the ESA. The ESA’s plain

terms apply to “any action authorized, funded, or carried out”

by a federal agency. 16 U.S.C. § 1536(a)(2). In Defenders of

Wildlife we held that the only statutory basis for the “discretionary” limitation in 50 C.F.R. § 402.03 was this “limitation

[of section 7 requirements] to actions ‘authorized, funded, or

carried out’ by the agency.” 420 F.3d at 967 (quoting 50

C.F.R. § 402.03). Therefore, “[a]s that limiting language is

the only possible source for the regulation’s ‘discretionary’

qualification of ‘all actions,’ we take the regulation as a gloss

on what the statutory limitation means and interpret the term

‘discretionary’ accordingly.” Id. According to the regulation’s

terms, the only actions not subject to ESA requirements are

“those the agency does not ‘authorize, fund, or carry out.’ ”

Id. (alterations omitted). Under this approach, any action actually taken by the agency is discretionary. 

Here, the action agencies may not now be said to “authorize, fund, or carry out” the basic existence of the FCRPS

dams. However, “section 7(a)(2) does apply where the agency

in question ha[s] continuing decisionmaking authority over

the challenged action.” Id. at 968 (discussing our relevant precedent). “Where the challenged action comes within the agency’s decisionmaking authority and remains so, it falls within

section 7(a)(2)’s scope.” Id. at 969. All aspects of FCRPS

NAT’L WILDLIFE FEDERATION v. STATE OF IDAHO 4017
operations, and any dam maintenance or structural modifications, are within the agencies’ discretion, and accordingly are

subject to section 7. 

This is true even though the action agencies must also serve

other statutory objectives besides ESA’s. An agency cannot

escape its ESA obligations “merely because it is bound to

comply with another statute that has consistent, complementary objectives.” Id. at 967 (internal quotation marks omitted).

Given “the imperative nature of the Endangered Species Act,”

ALCOA, 175 F.3d at 1163, agencies may not simply disregard

their ESA duties even where there is tension among competing interests. Rather, they have an affirmative duty to satisfy

the ESA’s requirements, as a first priority. See Pac. Coast

Fed’n, 426 F.3d at 1084-85( “The ESA obligates federal

agencies ‘to afford first priority to the declared national policy

of saving endangered species.’ ”) (quoting TVA v. Hill, 437

U.S. 153, 185 (1978)). 

NMFS’s contention that competing mandates for flood control, irrigation, and power production create any immutable

obligations that fall outside of agency discretion is not persuasive. The 2004 BiOp recognizes that Congress has not quantified any of these competing needs, or otherwise specified the

manner in which the agencies must fulfill them; the agencies

thus appear to retain discretion in this area. Moreover, at least

some of the competing statutory mandates clearly acknowledge that implementing agencies must accommodate wildlife

needs. See 16 U.S.C. § 839 (providing for purposes of 1980

Pacific Northwest Electric Power Planning and Conservation

Act “to be construed in a manner consistent with applicable

environmental laws”); ALCOA, 175 F.3d at 1163 (“The

Northwest Power Act’s goal of providing economical power,

however, does not supplant the BPS’s obligation to comply

with environmental mandates.”); Confederated Tribes &

Bands of the Yakima Indian Nation v. FERC, 746 F.2d 466,

473 (9th Cir. 1984) (finding Northwest Power Act places

“fish and wildlife concerns on an equal footing with power

4018 NAT’L WILDLIFE FEDERATION v. STATE OF IDAHO
production”). NMFS may not avoid determining the limits of

the action agencies’ discretion by using a reference operation

to sweep so-called “nondiscretionary” operations into the

environmental baseline, thereby excluding them from the requisite ESA jeopardy analysis. 

[4] ESA compliance is not optional. The very fact that the

agencies are unable to define the limits of their discretion here

reveals that all FCRPS operations are intertwined and subject

to discretionary control.7 The agencies may have nondiscretionary types of obligations, but they still maintain discretion — indeed, a duty — to balance the competing

demands and honor their ESA obligations. Because NMFS’s

approach in the 2004 BiOp produces the opposite result, it is

inconsistent with ESA’s plain requirements, and cannot stand.

B

[5] The district court also properly concluded that the 2004

BiOp impermissibly failed to incorporate degraded baseline

conditions into its jeopardy analysis. The 2004 BiOp initially

evaluated the effects of the proposed action as compared to

the reference operation, rather than focusing its analysis on

whether the action effects, when added to the underlying

baseline conditions, would tip the species into jeopardy. Like

the district court, we cannot approve NMFS’s insistence that

it may conduct the bulk of its jeopardy analysis in a vacuum.

[6] To “jeopardize the continued existence of” means “to

engage in an action that reasonably would be expected,

directly or indirectly, to reduce appreciably the likelihood of

both the survival and recovery of a listed species in the wild

by reducing the reproduction, numbers, or distribution of that

species.” 50 CFR § 402.02; 16 U.S.C. § 1536(a)(2). NMFS

7The so-called “nondiscretionary” operations might also qualify as “interrelated” actions, which must be considered in the jeopardy analysis. See

50 C.F.R. § 402.02 (defining effects of the action). 

NAT’L WILDLIFE FEDERATION v. STATE OF IDAHO 4019
argues that, under this definition, it may satisfy the ESA by

comparing the effects of proposed FCRPS operations on listed

species to the risk posed by baseline conditions. Only if those

effects are “appreciably” worse than baseline conditions must

a full jeopardy analysis be made. Under this approach, a listed

species could be gradually destroyed, so long as each step on

the path to destruction is sufficiently modest. This type of

slow slide into oblivion is one of the very ills the ESA seeks

to prevent. 

[7] Requiring NMFS to consider the proposed FCRPS

operations in their actual context does not, as NMFS argues,

effectively expand the “agency action” at issue to include all

independent or baseline harms to listed species. Nor does it

have the effect of preventing any federal action once background conditions place a species in jeopardy. To “jeopardize” — the action ESA prohibits — means to “expose to loss

or injury” or to “imperil.” Either of these implies causation,

and thus some new risk of harm. Likewise, the suffix “-ize”

in “jeopardize” indicates some active change of status: an

agency may not “cause [a species] to be or to become” in a

state of jeopardy or “subject [a species] to” jeopardy. American Heritage Dictionary of the English Language (4th ed.).

Agency action can only “jeopardize” a species’ existence if

that agency action causes some deterioration in the species’

pre-action condition. 

Even under the so-called aggregation approach NMFS

challenges, then, an agency only “jeopardize[s]” a species if

it causes some new jeopardy. An agency may still take action

that removes a species from jeopardy entirely, or that lessens

the degree of jeopardy. However, an agency may not take

action that will tip a species from a state of precarious survival into a state of likely extinction. Likewise, even where

baseline conditions already jeopardize a species, an agency

may not take action that deepens the jeopardy by causing

additional harm. 

4020 NAT’L WILDLIFE FEDERATION v. STATE OF IDAHO
[8] Our approach does not require NMFS to include the

entire environmental baseline in the “agency action” subject

to review.8 It simply requires that NMFS appropriately consider the effects of its actions “within the context of other

existing human activities that impact the listed species.”

ALCOA, 175 F.3d at 1162 n.6 (citing 50 C.F.R. § 402.02’s

definition of the environmental baseline). This approach is

consistent with our instruction (which NMFS does not challenge) that “[t]he proper baseline analysis is not the proportional share of responsibility the federal agency bears for the

decline in the species, but what jeopardy might result from the

agency’s proposed actions in the present and future human

and natural contexts.” Pac. Coast Fed’n, 426 F.3d at 1093

(emphasis added). 

[9] The continued operation of FCRPS dams constitutes an

“existing human activity” that endangers the fishes’ survival

and recovery. See ALCOA, 175 F.3d at 1152 n.6 (citing 50

C.F.R. § 402.02). The operation of the dams is within the federal agencies’ discretion because they are obligated to do so

in a manner consistent with the protection of endangered species under both the ESA and the Northwest Power Act, 16

U.S.C. § 839. 

C

[10] The district court also properly concluded that the

2004 BiOp was legally deficient because its jeopardy analysis

did not adequately consider the proposed action’s impacts on

the listed species’ chances of recovery. The ESA prohibits

agency action that is “likely to jeopardize the continued existence of” any listed species. 16 U.S.C. § 1536(a)(2). The reg8We note that under NMFS’s jeopardy approach, the environmental

baseline serves only as a point of reference to determine the net effects of

a narrowly-defined action. Thus, whether an action is included in the baseline determines whether its impacts are considered at all in the agency’s

basic jeopardy analysis. 

NAT’L WILDLIFE FEDERATION v. STATE OF IDAHO 4021
ulations interpret this to prohibit any agency action “that

reasonably would be expected, directly or indirectly, to

reduce appreciably the likelihood of both the survival and

recovery of a listed species in the wild.” 50 CFR § 402.02

(emphasis added). 

NMFS contends that this restriction bars only actions that

will both (1) reduce appreciably the likelihood of survival and

(2) reduce appreciably the likelihood of recovery, and that its

views are entitled to deference under Chevron U.S.A., Inc. v.

NRDC, 467 U.S. 837 (1984). Under this interpretation,

though, NMFS need only consider effects on survival: if there

is no appreciable reduction of survival odds, there can never

be jeopardy, even if recovery is completely impossible.

Because a species can often cling to survival even when

recovery is far out of reach, NMFS’s interpretation of the

jeopardy regulation reads “and recovery” entirely out of the

text. This disregard for the statutory and regulatory context

deserves no deference. 

Although we “will generally afford deference to the agency’s construction of its own regulation,” this deference is not

absolute. Regents of Univ. of Cal. v. Shalala, 82 F.3d 291, 294

(9th Cir. 1996); see also Webber v. Crabtree, 158 F.3d 460,

461 (9th Cir. 1998) (“Although we accord a high degree of

deference to an agency’s interpretation of its own regulation,

that interpretation cannot be upheld if it is plainly erroneous

or inconsistent with the regulation.”). Rather, the court conducts a “two-pronged analysis.” Shalala, 82 F.3d at 294. First,

considering the “plain language of the regulation,” we must

inquire whether “[t]he words of the regulation [are] reasonably susceptible to the construction placed upon them [by the

agency], both on their face and in light of their prior interpretation and application.” Id. (internal quotation marks omitted).

Second, we review the agency’s construction “in relation to

the governing statute,” to determine whether it is “consistent

with and in furtherance of the purposes and policies embodied

in the Congressional statute” authorizing the regulation. Id.

4022 NAT’L WILDLIFE FEDERATION v. STATE OF IDAHO
NMFS’s interpretation of the jeopardy regulation fails at both

stages. 

[11] As in Gifford Pinchot Task Force v. United States Fish

& Wildlife Service, 378 F.3d 1059 (9th Cir. 2004), we conclude that the jeopardy regulation requires NMFS to consider

both recovery and survival impacts. Gifford Pinchot held that

NMFS was required to consider recovery as well as survival

impacts in evaluating adverse modification of critical habitat,

rejecting the agency’s narrow interpretation of regulatory language identical to that presented here. Specifically, we held

that “[b]ecause it is logical and inevitable that a species

requires more critical habitat for recovery than is necessary

for the species survival, the regulation’s singular focus

becomes ‘survival.’ ” Gifford Pinchot, 378 F.3d at 1069. Concluding that ESA’s critical habitat provisions required protection — and thus agency consideration — of both survival and

recovery needs, we held that the regulation’s “singular focus”

on survival violated the ESA. Id. at 1070. 

We need not consider whether the ESA itself requires

NMFS to consider both survival and recovery (as Gifford Pinchot held was the case for critical habitat), because we conclude that the text of the jeopardy regulation is not

“reasonably susceptible” to the “survival only” interpretation

NMFS now gives it. As a general rule applicable to both statutes and regulations, textual interpretations that give no significance to portions of the text are disfavored. Hart v.

McLucas, 535 F.2d 516, 519 (9th Cir. 1979). NMFS’s reading

of the jeopardy regulation inexplicably reads “and recovery”

out of the text. Also, NMFS’s interpretation is unreasonable

“in light of [the regulation’s] prior interpretation and application.” See Shalala, 82 F.3d at 294 (internal quotation marks

omitted). Until issuing the 2004 BiOp, the agency had consistently interpreted 50 C.F.R. § 402.02 as requiring a joint analysis of both survival and recovery impacts. Nothing in its

NAT’L WILDLIFE FEDERATION v. STATE OF IDAHO 4023
prior approach indicates that NMFS may simply avoid any

consideration of recovery impacts, as it admits it has done here.9

When the regulation was issued in its current form, in June

1986, the preamble and comments on the revised regulations

offered a reasonable explanation for the regulation’s use of

the phrase “reduce appreciably the likelihood of both the survival and recovery of a listed species.” 51 Fed. Reg. 19,934

(June 3, 1986). The comments noted that there was some controversy over the reference to “both the survival and recovery,” but explained that the standard referred to a “joint

survival and recovery concept.” Id. (emphasis added). The

1986 revisions added the word “both” “to emphasize that,

except in exceptional circumstances, injury to recovery alone

would not warrant [a jeopardy finding].” Id. (emphasis

added). Thus, “in exceptional circumstances,” injury to recovery prospects alone could result in a jeopardy finding. The

comments expressly acknowledged that “significant impairment of recovery efforts or other adverse effects [besides survival impacts] which rise to the level of ‘jeopardizing’ the

‘continued existence’ of a listed species can also be the basis

for issuing a ‘jeopardy’ opinion.” Id. In order to recognize

such effects, and to apply the proper “joint survival and

recovery concept,” NMFS must analyze effects on recovery

as well as effects on survival.10

9Although the 2004 BiOp does not discuss recovery, NMFS argues that

it “implicitly” analyzed recovery in its survival analysis. However, we

may not consider this post hoc justification, or infer “an analysis that is

not shown in the record.” Gifford Pinchot, 278 F.3d at 1074; see also Pac.

Coast Fed’n, 426 F.3d at 1091 (“[W]e cannot infer an agency’s reasoning

from mere silence,” and “an agency’s action must be upheld, if at all, on

the basis articulated by the agency.”) (internal quotation marks omitted).

10We recognize that “these concepts [survival and recovery] are generally considered together in analyzing effects, and it is difficult to draw

clear-cut distinctions.” 51 Fed. Reg. 19,934. However, the agency may not

resolve this difficulty by ignoring recovery needs and focusing entirely on

survival, as it has claimed the right to do here. 

4024 NAT’L WILDLIFE FEDERATION v. STATE OF IDAHO
We also note that this view of survival and recovery, as

intertwined needs that must both be considered in a jeopardy

analysis, is consistent with NMFS’s jeopardy analysis in earlier BiOps, particularly the 1995 and 2000 BiOps in this very

dispute. Those BiOps plainly considered analysis of the listed

species’ prospects for recovery as essential to the jeopardy

analysis, and included repeated reference to, and measurement of, the relevant species’ chances to survive proposed

operations “with an adequate potential for recovery.” NMFS

has offered no rational explanation for its sudden decision to

omit recovery needs from the 2004 BiOp’s analysis. Because

the agency has so dramatically changed its approach, its new

interpretation is entitled to less deference than we might usually give. Cardoza-Fonseca, 480 U.S. at 446 n.30. 

[12] The question before us is not whether, on the merits,

recovery risks in fact require a jeopardy finding here, but

whether, as part of the consultation process, NMFS must conduct a full analysis of those risks and their impacts on the

listed species’ continued existence. Although recovery

impacts alone may not often prompt a jeopardy finding,

NMFS’s analytical omission here may not be dismissed as

harmless: the highly precarious status of the listed fishes at

issue raises a substantial possibility that considering recovery

impacts could change the jeopardy analysis.11 The only reasonable interpretation of the jeopardy regulation requires

NMFS to consider recovery impacts as well as survival. 

D

[13] In sum, the district court correctly held that the 2004

BiOp’s analysis was structurally flawed. It properly determined that the agency may not use a hypothetical “reference

operation” in its jeopardy analysis to exclude from the pro11We note, for example, the 2004 BiOp’s statement that the Snake River

sockeye’s continued near-total dependence on hatchery programs for survival may seriously harm its chances of recovery. 

NAT’L WILDLIFE FEDERATION v. STATE OF IDAHO 4025
posed action’s impacts the effects of related operations the

agency deems “nondiscretionary.” The district court also

properly concluded that the 2004 BiOp impermissibly failed

to incorporate degraded baseline conditions into its jeopardy

analysis. Finally, the district court correctly determined that

the 2004 BiOp was legally deficient because its jeopardy

analysis did not adequately consider the proposed action’s

impacts on the listed species’ chances of recovery. 

At its core, the 2004 BiOp amounted to little more than an

analytical slight of hand, manipulating the variables to

achieve a “no jeopardy” finding. Statistically speaking, using

the 2004 BiOp’s analytical framework, the dead fish were

really alive. The ESA requires a more realistic, common sense

examination. For these reasons, the district court’s rejection of

the 2004 BiOp’s jeopardy analysis was entirely correct. 

III

[14] The district court properly held that NMFS violated

the ESA by failing to ensure that proposed FCRPS operations

would not destroy or adversely modify critical habitat for any

listed fishes. Specifically, the district court found inadequate

NMFS’s analysis of impacts on the recovery value of critical

habitat for Snake River Spring/Summer Chinook salmon,

Snake River Fall Chinook salmon, and Snake River Sockeye

salmon, the only three listed species with designated critical

habitat at the time the 2004 BiOp was issued.12

[15] The ESA mandates that federal agencies take no action

that will result in the “destruction or adverse modification” of

designated critical habitat. 16 U.S.C. § 1536(a)(2). “Destruction or adverse modification” is defined as follows: 

12Critical habitat designations for nine other listed species were withdrawn after a successful 2002 court challenge. 

4026 NAT’L WILDLIFE FEDERATION v. STATE OF IDAHO
a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such

alterations include, but are not limited to, alterations

adversely modifying any of those physical or biological features that were the basis for determining the

habitat to be critical. 

50 C.F.R. § 402.02. This regulation, as interpreted by NMFS,

“reads the ‘recovery’ goal out of the adverse modification

inquiry,” and requires agencies to consider alterations that

appreciably diminish the value of critical habitat for either

survival or recovery. Gifford Pinchot, 378 F.3d at 1069. 

The 2004 BiOp used two different methods to evaluate critical habitat impacts, apparently due to post-Gifford Pinchot

uncertainty, and found no adverse modification under either

method. The first method, the “Environmental Baseline

Approach,” used the BiOp’s environmental baseline13 as a reference point. This method considers first whether “the proposed action is likely to alter an essential feature of the

critical habitat compared to the condition under the environmental baseline,” and, if it does, “whether that alteration

appreciably diminishes the value of critical habitat for survival or recovery.” As an alternative, NMFS also used a “Listing Conditions Approach,” which is similar, but uses as a

reference point habitat conditions at the time the species was

listed. Because the “Listing Conditions” approach clearly

does not satisfy ESA, we consider only the “Environmental

Baseline” approach in any detail.14

13This indirectly raises the same baseline-definition problems addressed

above. 

14Not surprisingly, the Listing Conditions approach found no hint of a

problem with any of the proposed action. The Listing Conditions approach

is entirely divorced from the statutory instruction to avoid “adverse modification,” 16 U.S.C. § 1536(a)(2), importing a reference point that is

incompatible with the statute’s plain language and clear purpose of

NAT’L WILDLIFE FEDERATION v. STATE OF IDAHO 4027
[16] We agree with the district court that NMFS’s adverse

modification analysis did not adequately consider recovery

needs and was therefore deficient under Gifford Pinchot, 378

F.3d at 1069. We agree with the district court that NMFS’s

critical habitat determination was arbitrary and capricious

because it (1) did not adequately consider the proposed

action’s short-term negative effects in the context of the

affected species’ life cycles and migration patterns, (2) relied

on uncertain long-term improvements to critical habitat to offset certain short-term degradation, and (3) concluded that the

species’ critical habitat was sufficient for recovery without

adequate information to make that determination. 

A

[17] The 2004 BiOp disregarded our clear instruction that

NMFS “must consider near-term habitat loss to populations

with short life cycles.” Pac. Coast Fed’n, 426 F.3d at 1094

(rejecting agency’s no-jeopardy finding for failure to provide

adequate, reasoned analysis of short-term impacts on endangered coho salmon). As we noted there, “[i]t is not enough to

provide water for [endangered fish] to survive in five years,

if in the meantime, the population has been weakened or

destroyed by inadequate water flows.” Id. at 1095. Here, the

2004 BiOp explicitly found that the proposed FCRPS operations would have significant negative impacts on each

affected species’ critical habitat through 2010, in spite of

planned mitigation efforts. However, it did not adequately

demonstrate that these impacts would not affect the fishes’

improving endangered species’ condition over time. Nothing in the statute’s language or purpose supports NMFS’s chosen meaning of “adverse

modification below conditions existing at time of listing.” Neither “adverse” nor “modification” ordinarily implies measurement against conditions at some remote point in the past. 

4028 NAT’L WILDLIFE FEDERATION v. STATE OF IDAHO
survival and recovery, in light of their short life-cycles and

current extremely poor habitat conditions.15

First, for the Snake River Spring/Summer Chinook, NMFS

found that the proposed action would have a significant negative impact on “the essential habitat feature of safe passage in

the juvenile migration corridor” for five years, despite mitigation efforts. In spite of this, NMFS found no adverse modification for the Spring/Summer Chinook “based primarily on

the determination that, by the sixth year of this proposed

action, the condition of critical habitat in the juvenile migration corridor would be improved.” In other words, NMFS

found that there was no adverse modification because it

ignored the short-term adverse modification and considered

only long-term impacts. This does not satisfy the ESA’s

requirements. See Gifford Pinchot, 378 F.3d at 1069. 

Effects on Snake River sockeye are both more uncertain

and likely more severe. NMFS found that Snake River sockeye will also suffer “significant” impairment of the safe passage feature of critical habitat between 2004 and 2009, and

lower survival for the entire duration of the proposed action.

As with the Snake River Spring/Fall Chinook, despite the current “extremely poor” habitat conditions, NMFS found no

adverse modification of sockeye habitat based mainly on its

conclusion that, by the sixth year of proposed operations, habitat quality would be either unchanged or reduced by an

amount not considered “appreciable.” This also fails to satisfy

our rule in Gifford Pinchot. 

In addition, NMFS relied heavily on the fact that “almost

all” of the Snake River sockeye found in the FCRPS today are

hatchery fish, and that hatchery operations could replace fish

15As in Pacific Coast Federation, we cannot simply take the agency’s

word that the listed species will be protected under the planned operations:

“If this were sufficient, the NMFS could simply assert that its decisions

were protective and so withstand all scrutiny.” 426 F.3d at 1092. 

NAT’L WILDLIFE FEDERATION v. STATE OF IDAHO 4029
lost under the proposed FCRPS operation. At the same time,

NMFS explicitly found that continued reliance on the hatchery operation itself threatens the sockeyes’ chances of recovery: “The longer this ESU relies on the captive broodstock

program for its existence, the greater the risks associated with

domestication and loss of genetic diversity, which will

increase the difficulty of reestablishing a viable population in

the ESU’s native habitat.” However, NMFS’s adverse modification analysis failed to consider the impact of prolonging the

sockeyes’ hatchery dependence on its eventual prospects for

recovery. 

B

[18] To the extent that NMFS found habitat conditions

would improve during the 2010-2014 period of operations, it

relied significantly on future installation of Removable Spillway Weirs (a type of surface bypass collector) and other

structural improvements to aid safe passage. We agree with

the district court that such improvements may not be included

as part of the proposed action without more solid guarantees

that they will actually occur. Although NMFS maintains that

“[t]he agencies are committed to installation of surface bypass

collectors at all dams where feasible, as exemplified by the

recent installation of such structures at three dams,” we are

not persuaded that even a sincere general commitment to

future improvements may be included in the proposed action

in order to offset its certain immediate negative effects, absent

specific and binding plans. Although the record does reflect

a general desire to install structural improvements where feasible, it does not show a clear, definite commitment of

resources for future improvements.16 Also, while some structural improvements have already been made, these may nei16It may well be that the agencies lack the power to guarantee the

improvements in question. However, if this is the case, the proper course

is to exclude them from the analysis and consider only those actions that

are in fact under agency control or otherwise reasonably certain to occur.

4030 NAT’L WILDLIFE FEDERATION v. STATE OF IDAHO
ther substitute for nor guarantee the future improvements that

NMFS found would improve fish habitat starting from 2010

through 2014. 

C

[19] The district court correctly held that NMFS inappropriately evaluated recovery impacts without knowing the inriver survival levels necessary to support recovery. It is only

logical to require that the agency know roughly at what point

survival and recovery will be placed at risk before it may conclude that no harm will result from “significant” impairments

to habitat that is already severely degraded. Requiring some

attention to recovery issues does not improperly import ESA’s

separate recovery planning provisions into the section 7 consultation process. Rather, it simply provides some reasonable

assurance that the agency action in question will not appreciably reduce the odds of success for future recovery planning,

by tipping a listed species too far into danger. 

IV

Finally, NMFS contends that the district court’s October 7,

2005, remand order exceeded the scope of its authority. Specifically, NMFS challenges the remand order’s requirements

that NMFS provide a “failure report” to the district court if it

believes the agencies will be unable to develop a proposed

action that avoids jeopardy to listed fishes within the district

court’s remand timeframe, and that the agency consult with

interested tribes and states during the remand. We have jurisdiction over this challenge because the remand order is

included in the district court’s amended final judgment under

Rule 54(b) entered on October 24, 2005. “The district court

has broad latitude in fashioning equitable relief when necessary to remedy an established wrong,” Alaska Ctr. for the

Env’t v. Browner (“ACE”), 20 F.3d 981, 986 (9th Cir. 1994),

and we review the district court’s choice of remedies within

that scope for abuse of discretion, United States v. Alisal

NAT’L WILDLIFE FEDERATION v. STATE OF IDAHO 4031
Water Corp., 431 F.3d 643, 654 (9th Cir. 2005). We conclude

that the disputed portions of the remand order are within the

district court’s authority, so long as they are enforced as written, and not as a broader license to direct the remand proceedings. 

The “failure report” requirement falls within the district

court’s power. The remand order’s precise command is as follows: 

If, at any time during the remand period, NOAA

concludes the Action Agencies are not making sufficient progress in developing a proposed action and/

or RPA that avoids jeopardy to the listed species,

NOAA shall advise the court of that circumstance

immediately and shall issue a ‘failure report’ similar

to that required in the 2000 BiOp, that advises the

court and the parties of those additional measures,

including the breaching of dams, that may be necessary to achieve a valid no-jeopardy finding. 

NMFS does not challenge the district court’s requirement of

regular status reports every 90 days during the remand, and

such reporting requirements are clearly permissible. See Telecomms. Research & Action Ctr. v. FCC, 750 F.2d 70, 81

(D.C. Cir. 1984). Nor does NMFS challenge the court’s discretionary authority to impose a deadline for the remand proceedings. See Nat’l Org. of Veterans’ Advocates v. Sec’y of

Veterans Affairs, 260 F.3d 1365, 1381 (Fed. Cir. 2001) (setting 120-day deadline for rule-making). The “failure report”

requirement here is a reasonable combination of a time limit

and progress reports and is appropriate under the circumstances of this case. The district court reasonably found that

such specific direction was necessary in light of the agency’s

conduct on earlier remands and the urgency of the listed species’ situation. 

The other requirement NMFS challenges is this: 

4032 NAT’L WILDLIFE FEDERATION v. STATE OF IDAHO
During the remand period, [the agencies] shall collaborate with the sovereign entities, including the

States of Idaho, Montana, Oregon, and Washington,

and the Tribes who are parties or amici in the action

. . . to achieve the goals of: 

(a) Developing items to be included in the proposed action; and 

(b) Clarifying policy issues and reaching agreement or narrowing the areas of disagreement on scientific and technical information. 

This collaboration requirement is justified both as a reasonable means to ensure that NMFS complies with the ESA’s

mandate that agencies “use the best scientific and commercial

data available” in their decision-making, 16 U.S.C.

§ 1536(a)(2), and as a reasonable procedural restriction given

the history of the litigation. However, we note that the

requirement does not on its face direct the substance of the

agencies’ actions on remand, and may not be interpreted to do

so. 

Courts may, at least in some circumstances, require specific

actions from an agency on remand. In ACE, 20 F.3d at 986-

87, which addressed the EPA’s persistent failure to establish

total maximum daily loads for Alaskan waters as required by

the CWA, we approved significant, but carefully tailored,

control of the EPA’s proceedings on remand. We held that

“[i]n tailoring the relief granted, the district court correctly

recognized that in order to bring about any progress toward

achieving the congressional objectives of the CWA, the EPA

would have to be directed to take specific steps.” Id. at 986.

Such discretion is also necessary here. 

Of course, there are also limits to the courts’ power to control an agency’s conduct on remand. See FPC v. Transcontinental Gas Pipe Line Corp., 423 U.S 326, 333 (1976) (finding

NAT’L WILDLIFE FEDERATION v. STATE OF IDAHO 4033
that the court of appeals had “overstepped the bounds of its

reviewing authority” by ordering a direct evidentiary report to

the court). In ACE, we noted with approval that “the [district]

court was careful to leave the substance and manner of

achieving [CWA] compliance entirely to the EPA.” ACE, 20

F.3d at 986-87. Thus, the district court’s remedy fell within

its “traditional, equitable, and interstitial role to fashion [a]

remedy” for the agencies’ dereliction of their statutory duties.

Id. at 987. 

[20] Here, FCRPS operations have been the subject of perpetual litigation since the fishes in question were first listed

in the early 1990s. The analytical approach of the 2004 BiOp,

issued under court order after a remand in 2003, broke sharply

from NMFS’s previous analyses in the 1995 and 2000 BiOps,

and did so in ways that lacked any reasonable foundation in

the ESA’s statutory mandates. We hold that on this record,

requiring consultation with states and tribes constitutes a permissible procedural restriction rather than an impermissible

substantive restraint.17 The district court’s chosen remedy was

“reasonably calculated to remedy an established wrong,” and

was not an abuse of discretion. NRDC v. Sw. Marine, Inc.,

236 F.3d 985, 1000 (9th Cir. 2000) (internal quotation marks

omitted) (approving remedy to enforce compliance with

CWA permit issued by agency, and finding no encroachment

on agency’s authority). 

V

In short, after a careful review of the record, we affirm the

judgment of the district court. Its rejection of the 2004 BiOp

was entirely appropriate, and it did not abuse its discretion in

17We find far less intrusion into agency procedures here than in the situation the Second Circuit found impermissible in Sierra Club v. United

States Army Corps of Engineers, 701 F.2d 1011 (2d Cir. 1983). 

4034 NAT’L WILDLIFE FEDERATION v. STATE OF IDAHO
entering the remand order. 

AFFIRMED.

NAT’L WILDLIFE FEDERATION v. STATE OF IDAHO 4035