Full opinion text
SECOND AMENDED MEMORANDUM DECISION GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTIONS FOR SUMMARY JUDGMENT (Doc. 145) AND GRANTING IN PART AND DENYING IN PART FEDERAL DEFENDANTS’ CROSS-MOTIONS FOR SUMMARY JUDGMENT (Doc. 160) OLIVER W. WANGER, District Judge. I. Introduction 1127 A. The Water Projects 1127 B. The Lawsuit: Parties and Contentions 1129 1. The Parties..................... 1129 a. Plaintiffs....................................................1129 b. Federal Defendants...........................................1129 c. Defendant-Intervenors........................................1129 2. Federal Defendants and DIs’ Concessions...........................1130 II. Procedural Background...................................................1131 A. Case History........................................................1131 B. Summary of Plaintiffs’ Claims in the First Amended Complaint...........1131 III. Factual Background......................................................1132 A. Overview of the 2004 OCAP ...........................................1132 B. Description of Proposed Action in the BiOp.............................1134 C. Mitigation Measures.................................................1134 D. Species Life History and Population Dynamics..........................1134 1. Chinook Salmon .................................................1134 a. General Life History of Chinook Salmon........................1134 b. Winter-run Chinook..........................................1136 (1) Habitat..................................................1136 (2) Population Trend.........................................1136 (3) Status of Winter-Run.....................................1137 c. Spring-run Chinook..........................................1138 (1) Habitat...................................*...............1138 (2) Population...............................................1139 (3) Status...................................................1139 2. CV Steelhead.....................................................1141 a. General Life History..........................................1141 b. Habitat.....................................................1142 c. Population..................................................1142 d. Status.......................................................1143 IV. Legal Standards Of Review................................................1143 A. Summary Judgment Generally........................................1143 B. Summary Judgment Under The Administrative Procedure Act............1143 V. Summary of Parties’ Cross-Motions for Summary Judgment..................1145 A. Plaintiffs’ Motion for Summary Judgment..............................1145 B. Federal Defendants’ Motion for Summary Judgment.....................1145 VI.Law And Analysis .......................................................1146 A. Standing............................................................1146 1. PCFFA.........................................................1147 2. Bay Institute....................................................1147 3. Baykeeper.......................................................1148 4. California Trout.................................................1149 5. FOR............................................................1150 6. NRDC..........................................................1150 7. The Council .....................................................1151 8. The Tribe........................................................1151 9. The Trust .......................................................1152 B. Plaintiffs’ Request for Judicial Notice..................................1153 C. The Endangered Species Act ..........................................1154 D. NMFS Claims.......................................................1155 1. Whether NMFS Failed to Establish Any Reasonable Connection Between the Impacts It Identified and the BiOp’s “No Jeopardy” and “No Adverse Modification” Conclusions.......................1155 a. Whether NMFS’s Factual Findings Directly Contradict the No Jeopardy and No Adverse Modification Conclusions in the BiOp......................................................1156 (1) Winter-run Chinook.......................................1157 (2) Spring-run Chinook.......................................1169 (3) CV Steelhead.............................................1172 b. Whether NMFS Failed to Conduct Any Analysis of Project Impacts in the Context of the Species’ Life Cycles and Population Dynamics.......................................1174 c. Whether NMFS’s Focus on Incremental Project Impacts Arbitrarily Ignored Significant Adverse Effects Associated With Baseline Conditions and is Unsupported by the BiOp’s Findings..................................................1175 d. Whether NMFS Failed to Conduct a Comprehensive Analysis of Impacts Associated With the Entire Federal Action During Formal Consultation................................1178 2. Global Climate Change and the Effects on the Hydrology of Northern California Rivers......................................1183 3. Sufficiency of Adaptive Management Plan and Mitigation Measures......................................................1184 a. Temperature Control .........................................1185 b. Shasta Carryover Storage .....................................1186 c. SWRCB Order 90-5...........................................1186 d. Red Bluff Diversion Dam .....................................1187 e. The Environmental Water Account.............................1187 f. South Delta Improvement Program.............................1188 E. Bureau Claims......................................................1188 1. The Bureau’s § 7(a)(2) Obligations.................................1188 a. The Bureau’s Reliance on the 2004 BiOp at the Time It Was Adopted...................................................1188 (1) Political Bad Faith Contention.............................1189 (2) Allegedly “Obvious”Legal Errors...........................1189 (a) Mitigation Measures ..................................1189 (b) Internal Contradictions................................1190 (c) Recovery & Critical Habitat Analysis....................1190 (d) Global Climate Change.................................1190 (e) Temperature Control Point.............................1190 (f) Failure to Consider 100% of Water Deliveries.............1191 b. The Bureau’s “Continued Reliance” on the BiOp.................1191 2. Violation of ESA § 7(d)...........................................1192 VII. Conclusion..............................................................1193 I. Introduction. Before the Court are the parties’ cross-motions for summary judgment arising from an October 22, 2004, Biological Opinion (“BiOp”) issued by the United States National Marine Fisheries Service (“NMFS” also referred to as “NOAA Fisheries,” used interchangeably), in response to the United States Bureau of Reclamation’s (“Bureau”) initiation of formal and early consultation with NMFS. This is one of a series of cases that address through this and other Biological Opinions, the potential adverse impacts of ongoing Central Valley Project (“CVP”) and California State Water Project (“SWP”) operations on fish, here, salmonid species, caused by the Long-Term Central Valley Project and State Water Project Operations Criteria and Plan (“2004 OCAP”) completed June 30, 2004. A. The Water Projects. The CVP is an “extensive system of dams, tunnels, canals and reservoirs that stores and regulates water for California’s Central Valley and southward.” Westlands Water District v. Department of Interior, 376 F.3d 853, 861 (9th Cir.2004). The CVP supplies 200 water districts, “providing water for about 30 million people, irrigating California’s most productive agricultural region and generating electricity at nine power plants.” The Projects move water through their Delta pumping facilities to provide flood protection, power generation, and water service to otherwise barren areas of Central California for agricultural, municipal, and environmental uses. The CVP was taken over by the United States in 1935, has since been a Federal enterprise, and is the largest Federal water management project in the United States. Cent Delta Water Agency v. United States, 306 F.3d 938, 943 (9th Cir.2002). The Federal government has administered the CVP since 1935. Westlands Water Dist. v. United States, 337 F.3d 1092, 1095 (9th Cir.2003). The Bureau administers the CVP. Orff v. United States, 545 U.S. 596, 598, 125 S.Ct. 2606, 162 L.Ed.2d 544 (2005). The SWP is the “largest State-built water project in the country, (and) is managed by the California Department of Water Resources (‘DWR’)”. Natural Res. Def. Council v. Norton, No. 05-01207-OWW 2006 WL 39094, *1 (E.D.Cal. Jan. 5, 2006). “The CVP and SWP share certain facilities and coordinate operations with one another pursuant to a Coordinated Operating Agreement (‘COA’). The COA which originated in 1986, has evolved over time to reflect, among other things, changing facilities, delivery requirements and regulatory restrictions.” Id. at *2. For over thirty years, the projects have been operated pursuant to a series of cooperation agreements. In addition, the projects are subject to ever-evolving statutory, regulatory, contractual, and judicially-imposed requirements. The 2004 OCAP is a baseline description of the Projects’ operating facilities and operating environment. The Bureau and DWR requested the initiation of formal ESA § 7 consultation for Project operations and proposed operations on March 15, 2004 and March 12, 2004, respectively. Among proposed changes in operations are the expansion of the Projects’ capacity and increased pumping out of the Delta. The BiOp was intended to address the potential adverse impacts of ongoing (for the next twenty-five years) CVP and SWP operations on the salmonid species. The original BiOp concludes that the effects of proposed Project operations under the 2004 OCAP are not likely to jeopardize the continued existence of the Sacramento River winter-run Chinook (“winter-run Chinook”), and are not likely to adversely modify the critical habitat for the winter-run Chinook listed as endangered January 4, 1994. The BiOp further concludes that proposed operations under the 2004 OCAP are not likely to jeopardize the continued existence of the Central Valley spring-run Chinook (“spring-run Chinook”), listed as threatened on September 16, 1999, or Central Valley steelhead (“CV steelhead”) listed as threatened on March 19, 1998. Following the issuance of the BiOp, NOAA Fisheries listed as threatened, a population segment of the North American Green Sturgeon located in the Delta Region. 71 Fed.Reg. 17,757 (April 7, 2006). NOAA designated critical habitat in the Delta region affected by the CVP for two Evolutionarily Significant Units (“ESUs”) of Chinook salmon and five ESUs of steel-head. NOAA, Final Rule Re: Designation of Critical Habitat for Seven ESUs of Pacific Salmon and Steelhead in California. 70 Fed.Reg. 52,488 (September 2, 2005). As a result, the Bureau, on April 26, 2006, requested reinitiation of ESA § 7 consultation on the 2004 NMFS BiOp. Project operations affect a variety of salmonid species including the endangered Sacramento River winter-run Chinook salmon (“winter-run Chinook”), the threatened Central Valley spring-run Chinook salmon (“spring-run Chinook”), threatened Central Valley steelhead (“CV steelhead”), threatened Southern Oregon/Northern California Coast Coho salmon; and threatened Central California Coast steelhead. After reinitiation of consultation, Federal Defendants sought to dismiss, remand or stay this case. That motion was denied on all grounds. A Fed. R. Civ. Proc. 12(b)(1) motion to dismiss Plaintiffs’ Seventh Claim under the National Environmental Protection Act (“NEPA”) for lack of jurisdiction was granted June 15, 2007. Plaintiffs’ challenge the Bureau’s “early consultation” with NMFS under 16 U.S.C. § 1536(a)(3) and the adoption of the 2004 BiOp. B. The Lawsuit: Parties and Contentions. 1. The Parties. a.Plaintiffs. Plaintiffs, the Pacific Coast Federation of Fishermen’s Association/Institute for Fishery Resources; the Bay Institute; Baykeeper and its Deltakeeper Chapter; California Trout; Friends of the River; Natural Resources Defense Council; Northern California Council of the Federation of Fly Fishers; Sacramento Preservation Trust; and the Winnemem Wintu Tribe, a coalition of environmental and fishing organizations (collectively “Plaintiffs”), challenge the 2004 BiOp’s no jeopardy and no adverse modification findings as arbitrary, capricious, and contrary to law under the Administrative Procedure Act, 5 U.S.C. § 702, et seq. (“APA”). Plaintiffs allege, among other things: (1) that the conclusions of the BiOp are unsupported and contradicted by the Administrative Record (“AR”); (2) that the BiOp relies on uncertain mitigation measures as a basis for the no jeopardy opinions, (3) that the BiOp fails to consider the best available science; (4) the Bureau is failing to ensure that its actions are not likely to jeopardize the continued existence of the listed species or to adversely modify their critical habitat; (5) that the Bureau is taking actions that may adversely affect the listed species and their critical habitat without a valid biological opinion, and (6) that the Bureau is making irretrievable and irreversible commitments of resources that foreclose the formulation or implementation of any reasonable and prudent alternatives. b. Federal Defendants. Federal Defendants, Carlos M. Gutierrez, in his official capacity as Secretary of Commerce; William T. Hogarth, in his official capacity as Assistant Administrator for Fisheries, National Marine Fisheries Service, National Ocean & Atmospheric Administration; Dirk Kempthorne, in his official capacity as Secretary of the Interi- or; and William E. Rinne, in his official capacity as Acting Commissioner, United States Bureau of Reclamation (collectively “Federal Defendants”), filed opposition briefs and their own cross-motion for summary judgment. c. Defendant-Intervenors. The Defendant-Intervenors are San Luis & Delta-Mendota Water Authority, Westlands Water District, California Farm Bureau Federation, Glen-Colusa Irrigation District, and State Water Contractors, (collectively “DI”); they filed a joint opposition to Plaintiffs’ summary judgment motion. 2.Federal Defendants and DIs’ Concessions. Federal Defendants and DI do not contest and admit the validity of some of the claims raised against the 2004 NMFS BiOp in light of the reinitiation of consultation: (1) the BiOp fails to consider and analyze global climate changes and its impacts; (2) the BiOp fails to consider and analyze adverse impacts to CV steelhead and fails to define and consider critical habitat for CV steelhead and its survival and recovery; (3) NMFS also acknowledges the need for further explanation of its “no jeopardy” analysis, particularly to address recovery implications for the three salmonid species; (4) NMFS acknowledges the need for further explanation of its critical habitat analysis for winter-run Chinook salmon, particularly to address the impacts to the primary constituent elements and whether an “adverse modification of critical habitat occurred,” and in relation to the “no jeopardy” conclusion. The DIs’ combined brief on behalf of San Luis & Delta Mendota Water Authority, Westlands Water District, State Water Contractors, and California Farm Bureau Federation, based on reinitiation of consultation and the smelt decision, suggest accepting the collective admissions of the BiOp’s shortcomings (uncontested issues) and proceeding directly to an interim remedy phase. The DI accept as uncontested issues raised by Plaintiffs motion for summary judgment: (1) insufficient explanation of no jeopardy to threatened steelhead species; and (2) failure to analyze effects of global climate change on the species. The DIs accept that the BiOp is subject to the same defects involving those claims identified as inadequate by the Delta smelt BiOp. This includes FWS’s and NMFS’s failure to explain on the record how their no jeopardy conclusions were reached. As to all other NMFS claims DI contend NMFS acted consistently with ESA, the smelt Biop order, and as to all claims against the Bureau: 1. Analyzing the effect of Project operations on threatened spring-run Chinook and its critical habitat; 2. Analyzing the effect of Project operations on endangered winter-run Chinook and its critical habitat; 3. Operating the Project is not a per se or patent violation of the ESA; 4. Sufficiently considering baseline conditions; 5. Applying adaptive management mitigation measures for salmonid species; 6. Meeting its ESA § 7(d) obligations in consulting and relying on the BiOp. Federal Defendants and DI seek remand of the BiOp without vacatur or modification. In the companion case, NRDC v. Kempthorne, 506 F.Supp.2d 322 (E.D.Cal.2007) the Court determined the legal invalidity of the 2005 Delta smelt BiOp addressing the 2004 OCAP for its failure to discuss and evaluate the impacts of global climate change in relation to the BiOp’s no jeopardy conclusion. Federal Defendants and DI deny that the segment of the NRDC v. Kempthome ruling, which found unlawful and inadequate adaptive management mitigation measures adopted in the smelt case, has any applicability to the salmon species based on the substantive difference in the adaptive management measures for salmonids, including temperature control and compliance and Shasta Dam carryover storage (cold water resource protection). Federal Defendants and DI contend the Bureau has met its ESA obligations in consulting and relying on the BiOp and has not violated ESA § 7(d) as to the BiOp, when it reinitiated consultation. II. Procedural Background. A. Case History. The complaint was filed August 9, 2005, and amended September 11, 2006. A motion to dismiss the seventh cause of action for violation of NEPA was granted June 15, 2007. A June 15, 2007, order limited the use of post-record documents to scientific purposes and to show bad faith, if any, on the part of the Bureau. B. Summary of Plaintiffs’ Claims in the First Amended Complaint. The FAC advances seven claims for relief. Claims one through three are directed at NMFS and the BiOp, while claims four through six are directed at the Bureau’s actions since NMFS issued the BiOp. The first claim for relief, violation of the APA and ESA, alleges the no jeopardy conclusions in the BiOp are unsupported and contradicted by the administrative record, and are therefore arbitrary and capricious, an abuse of discretion, and contrary to law under APA § 706(2). According to Plaintiffs, the BiOp fails to establish the necessary link between the facts found and conclusions reached, and it also contains factual findings that contradict its “no jeopardy” conclusions. The second claim for relief, violation of the APA and ESA, asserts the BiOp improperly relies on a promise of adaptive management without identifying concrete actions to ensure protection of the winter-run Chinook, the spring-run Chinook, and the CV steelhead species, and fails to protect the critical habitat of the winter-run Chinook. According to Plaintiffs, the BiOp’s reliance on the uncertain “adaptive management” regime violates ESA § 7(a)(2) and is arbitrary, capricious, an abuse of discretion, and not in accordance with the law, contrary to APA § 706(2). The third claim for relief, violation of the APA and ESA, alleges NMFS failed to consider the best available science to reach the no jeopardy conclusions in the BiOp. Among other deficiencies, NMFS disregarded the best available science documenting that the 2004 OCAP will jeopardize the continued existence of the spring-run Chinook and CV steelhead, and that it will adversely modify and destroy the winter-run Chinook’s critical habitat. NMFS also allegedly failed to consider the best available scientific data concerning the effects of global climate change which violated ESA § 7(a)(2), and was arbitrary, capricious, an abuse of discretion, and not in accordance with the law, contrary to APA § 706(2). The fourth claim is for the Bureau’s violation of the ESA and APA by failing to ensure that its actions are not likely to jeopardize the continued existence of several species or to adversely modify their critical habitat. Implementation of the 2004 OCAP has short-term and long-term adverse impacts on the winter-run Chinook, spring-run Chinook, and CV steel-head that jeopardize their continued existence. According to Plaintiffs, the Bureau has an independent duty to ensure that its actions avoid jeopardy to listed species, and the Bureau has failed to comply with this duty by implementing the 2004 OCAP. The implementation of the 2004 OCAP will adversely impact several features of the winter-run Chinook’s critical habitat including water quality and quantity, water temperature, water velocity, and fish safe passage conditions. The Bureau’s failure to ensure that its actions will not jeopardize the continued existence of the winter-run Chinook, spring-run Chinook, and CV steelhead, or adversely modify their critical habitat, is arbitrary, capricious, an abuse of discretion, and not in accordance with the law, contrary to APA § 706(2). The fifth claim charges the Bureau has violated the ESA and APA by taking actions that “may affect” listed species and their critical habitat without a valid biological opinion. According to Plaintiffs, the Bureau’s implementation of the 2004 OCAP in the absence of a “valid” biological opinion violates ESA § 7(a)(2), and is arbitrary, capricious, an abuse of discretion, and not in accordance with the law, contrary to APA § 706(2). The sixth claim asserts the Bureau has violated the ESA and APA by making irretrievable and irreversible commitments of resources that foreclose reasonable and prudent alternatives in violation of ESA § 7(d). According to Plaintiffs, the Bureau has taken and is taking actions that foreclose implementation of reasonable and prudent alternatives to avoid jeopardy to the species by moving forward with plans to construct physical alterations as part of the South Delta Improvement Project and by signing and implementing new long-term water service contracts committing delivery of substantially increased quantities of CVP water. The Bureau’s actions are claimed to be arbitrary, capricious, an abuse of discretion, and not in accordance with law, contrary to APA § 706(2). Plaintiffs’ FAC seeks the following relief: (1)A declaration that the BiOp is arbitrary and capricious, an abuse of discretion, and not in accordance with the law, all in violation of APA § 706(2); (2) An order holding unlawful and setting the BiOp aside; (3) An Order requiring reinitiation of consultation with respect to the impacts of the 2004 OCAP, including changes to project operations; (4) A finding and declaration that Reclamation, in implementing the 2004 OCAP, has failed and is failing to ensure that its actions will not jeopardize the continued existence of the winter-run Chinook, the spring-run Chinook, and CV steelhead, or to adversely modify their critical habitats. (5) A finding and declaration that Reclamation, in implementing the 2004 OCAP, is irretrievably and irreversibly committing resources that foreclose the formulation or implementation of reasonable and prudent alternatives. III. Factual Background. A. Overview of the 200k OCAP. The OCAP’s introductory “Purpose of Document” section states: This document has been prepared to serve as a baseline description of the facilities and operating environment of the Central Valley Project (CVP) and State Water Project (SWP). The Central Valley Project-Operations and Criteria Plan (CVP-OCAP) identifies the many factors influencing the physical and institutional conditions and decision-making process under which the project currently operates. Regulatory and legal instruments are explained, alternative operating models and strategies described. The immediate objective is to provide operations information for the Endangered Species Act, Section 7, consultation. The long range objective is to integrate CVP-OCAP into the proposed Central Valley document. It is envisioned that CVP-OCAP will be used as a reference by technical specialists and policymakers in and outside the Bureau of Reclamation (Reclamation) in understanding how the CVP is operated. The CVP-OCAP includes numeric and non-numeric criteria and operating strategies. Emphasis is given to explaining the analyses used to develop typical operating plans for simulated hydrologic conditions. All divisions of CVP are covered by this document, including the Trinity River Division, Shasta and Sacramento Divisions, American River Division and Fri-ant Division. USBR AR 4466. The introductory chapter provides an overview of all of the physical components of the CVP and SWP, as well as all of the relevant legal authorities affecting CVP operations. USBR AR 4467-80. Chapter 2, explains, among other things, that water needs assessments have been performed for each CVP water contractor, to confirm each contractor’s past beneficial use in order to anticipate future demands. USBR AR 4481. Chapter 2 also reviews the 1986 COA and how it is implemented on a daily basis by the Bureau and DWR. USBR AR 4483-90. A detailed overview of the “changes in [the] operations coordination environment since 1986,” includes: • Changes due to temperature control operations on the Sacramento River; • Increases in the minimum flow release requirements on the Trinity River; • Implementation of CVPIA 3406(b)(2) and Refuge Water Supply contracts; • Commitments made by the CVP and SWP pursuant to the Bay-Delta Accord and the subsequent implementation of State Water Resources Control Board (“SWRCB”) Decision-1641; • The Monterey Agreement; • The Operation of the North Bay Aqueduct (which was not included in the 1986 COA). • The SWP’s commitment to make up for 195,000 acre-feet of pumping lost to the CVP due to SWRCB Decision 1485; • Implementation of the Environmental Water Account; and • Constraints imposed by various Endangered Species Act listings, including that of the Sacramento River Winter-Run Chinook Salmon, the Sacramento River Spring-Run Chinook Salmon, the Steelhead Trout, and the Delta Smelt (which resulted in the issuance of biological opinions in 1993, 1994, and 1995 concerning CVP/SWP operations and the South Delta Temporary Barriers Biological Opinion in 2001) USBR AR 4485-88. The OCAP reviews the regulatory standards imposed-by SWRCB D-1641, which include water quality standards based on the geographic position of the 2-parts-per-thousand isohale (otherwise known as “X2”); a Delta export restriction standard known as the export/inflow (E/I) ratio; minimum Delta outflow requirements; and Sacramento River and San Joaquin River flow standards. USBR AR 4486-87. In addition to imposing requirements, D-1641 granted the Bureau and DWR permission to use each project’s capabilities in a coordinated manner. USBR AR 4490-91. Numerous additional regulatory and operational changes have taken place in Project operations in recent years. As the OCAP’s “Purpose of Document” section explains, the immediate objective of the OCAP is to lay out all such regulatory and other operational information so that an ESA § 7 consultation can proceed to evaluate how project operations will effect the salmonid species under various projected future conditions. B. Description of Proposed Action in the BiOp. The purpose of the proposed action is to continue to operate the CVP and SWP in a coordinated manner to divert, store, and convey Project water. NMFS AR 5743. In addition to current day operations, several future facilities and actions are included in the consultation. Id. These include (1) increased flows in the Trinity River, (2) an intertie between the California Aqueduct and the Delta-Mendota Canal, (3) the Freeport Regional Water Project, (4) water transfers, and (5) renewal of long term CVP water service contracts and future deliveries. Id. The proposed actions will come online at various times in the future, except for increased flows in the Trinity River, which are presently being implemented in accordance with the Trinity River Record of Decision. Id. The proposed action is: (a) continued operation of the CVP and SWP without these actions, and (b) implementing these operations as they come online. Id. C. Mitigation Measures. The BiOp includes mitigation measures principally related to: (1) movement of the 56°F Sacramento River Temperature Compliance Point from Bend Bridge upstream to Balls Ferry; (2) maintaining the carryover storage for Shasta Reservoir at 1.9 million acre-feet (“MAF”) as a target; (3) the operation of Red Bluff Diversion Dam (“RBDD”) to provide unimpeded fish passage upstream and downstream at RBDD. Plaintiffs complain about mitigation measures that are to be implemented in the future including, but not limited to, (1) Environmental Water Account assets; (2) increased exports resulting from the South Delta Improvement Program; (3) utilization of the Environmental Water Account to augment water flows. D.Species Life History and Population Dynamics. 1. Chinook Salmon. a. General Life History of Chinook Salmon. Chinook salmon exhibit two generalized fresh water life histories known as “stream-type” and “ocean-type.” NMFS AR 5787. Stream-type Chinook salmon enter fresh water months before spawning and reside in fresh water for a year or more following emergence. Id. Ocean-type Chinook salmon spawn soon after entering fresh water and migrate to the ocean as fry or parr within their first year. Id. Spring-run Chinook exhibit a stream-type life form where adults enter fresh water in the spring and spawn in the fall. Id. Spring-run Chinook juveniles typically spend a year or more in fresh water before emigrating towards the sea. Id. Winter-run Chinook exhibit characteristics of both stream-type and ocean-type life histories. Id. Adult winter-run Chinook enter freshwater in winter or early spring and delay spawning until spring or early summer (stream-type). Id. Juvenile winter-run Chinook migrate to the sea after only four to seven months of river life (ocean-type). Id. Adequate instream flows and cool water temperatures are more critical for the survival of Chinook salmon exhibiting a stream-type life history due to over-summering by adults and/or juveniles. Id. Chinook salmon mature between two and six plus years of age. NMFS AR 5787. Freshwater entry and spawning timing generally are thought to be related to local water temperature and flow regimes. Id. Chinook salmon runs are designated on the basis of adult migration timing. Id. Both spring-run and winter-run Chinook tend to enter freshwater as immature fish, migrate far upriver, and delay spawning for weeks or months. Id. During their upstream migration, adult Chinook salmon require stream flows sufficient to provide olfactory and other orientation cues to locate their natal streams. NMFS AR 5787. Adequate stream flows are necessary to allow adult passage to upstream holding habitat. Id. The preferred temperature is 38°F to 56°F. Adult winter-run Chinook enter San Francisco Bay from November through June and migrate past RBDD from mid-December through early August. Id. The majority of the winter-run Chinook pass RBDD from January through May, and passage peaks in mid-March. Id. The timing of migration may vary due to river flows, dam operations, and water year type. Adult spring-run Chinook enter the Delta from the Pacific Ocean beginning in January and enter natal streams from March to July. Id. Spring-run Chinook utilize mid to high elevation streams that provide appropriate temperatures and sufficient flow, cover, and pool depth to allow over-summering while conserving energy and allowing their gonadal tissue to mature. Id. at 5787-88. Spawning Chinook salmon require clean, loose gravel in swift, relatively shallow riffles or along the margins of deeper runs, and suitable water temperatures, depths, and velocities. NMFS AR 5788. Spawning typically occurs in gravel beds that are located at the tails of holding pools. Id. The upper preferred water temperature for spawning Chinook salmon is 55°F to 57°F. Id. Winter-run Chinook spawning occurs primarily from mid-April to mid-August, with peak activity occurring in May and June in the Sacramento River between Keswick dam and RBDD. Id. The majority of spawning winter-run Chinook are three years old (between 56% and 87%). Id. Spring-run Chinook spawning occurs between September and October depending on water temperatures. Id. The optimal water temperature for egg incubation is 44°F to 54°F. NMFS AR 5788. Incubating eggs are vulnerable to adverse effects from floods, siltation, desiccation, disease, predation, poor gravel percolation, and poor water quality. Id. The length of time required for eggs to develop and hatch is variable and depends on water temperature. Id. The lower and upper temperatures resulting in 50% pre-hatch mortality were 37°F and 61°F, respectively, when the incubation temperature was constant. Id. Winter-run Chinook fry begin to emerge from the gravel in late June to early July and continue through October, generally at night. Id. at 5789. Spring-run Chinook fry emerge from the gravel from November to March and spend about three to fifteen months in freshwater habitats before emigrating to the ocean. Id. When juvenile Chinook salmon reach a length of 50 to 75 millimeters, they move into deeper water with higher current velocities. NMFS AR 5789. Emigration of juvenile winter-run Chinook past RBDD may begin as early as mid-July, typically peaks in September, and can continue through March in dry years. Id. From 1995 to 1999, all winter-run Chinook out-migrating as fry passed RBDD by October, and all outmigrating pre-smolts and smolts passed RBDD by March. Id. Spring-run Chinook emigration is highly variable. Id. Some may begin outmigrating soon after emergence, while others over-summer and emigrate as yearlings with the onset of intense fall storms. Id. The emigration period for spring-run Chinook extends from November to early May, with up to sixty-nine percent young-of-the-year outmigrants passing through the lower Sacramento River and Sacramento-San Joaquin Delta during this period. Id. b. Winter-run Chinook. (1) Habitat. The distribution of winter-run Chinook spawning and rearing historically was limited to the upper Sacramento River and tributaries, where spring-fed streams allowed for spawning, egg incubation, and rearing in cold water. NMFS AR 5790. Construction of Shasta Dam in 1943 and Keswick Dam in 1950 blocked access to these historical waters, except Battle Creek, which is blocked by a weir at the Coleman National Fish Hatchery and other small hydroelectric facilities. Id. at 5790-91. Approximately 299 miles of tributary spawning habitat in the upper Sacramento River is now blocked. Id. at 5791. Most components of the winter-run Chinook’s life history have been compromised by the habitat blockage in the upper Sacramento River. Id. The winter-run’s critical habitat is delineated as the Sacramento River from Keswick Dam to Chipps Island at the westward margin of the Sacramento-San Joaquin Delta, including Kimball Island, Winter Island, and Brown’s Island; all waters from Chipps Island westward to Carquinez Bridge, including Honker Bay, Grizzly Bay, Suisun Bay, and the Carquinéz Strait; all waters of San Pablo Bay westward of Carquinez Bridge and all waters of the Sam Francisco Bay north of the San Francisco-Oakland Bay Bridge. NMFS AR 5785. NMFS concluded proposed Project operations will affect 19 miles of this critical habitat. NMFS 5846. The primary measure adjustment of the Temperature Compliance Point upward from Bend Bridge for temperatures -of 56°F upstream to Balls Ferry on the Sacramento River will “not” jeopardize winter-run salmon or adversely modify its critical habitat. NMFS 6068. The majority of winter-run have spawned upstream of Balls Ferry for the last decade. NMFS 5845. During ten years prior to issuance of the BiOp, aerial surveys show that 96.4% of the redds created by spawning winter-run were located above Balls Ferry. Id. The same survey showed that in three years prior to the BiOp, 99% of the redds were located upstream of Balls Ferry. Id. (2) Population Trend. Following construction of Shasta Dam, the number of winter-run Chinook initially declined but recovered during the 1960s. NMFS AR 5791. The initial recovery was followed by a steady decline from 1969 through the late 1980s, after construction of RBDD. Id. Since 1967, the estimated adult winter-run Chinook population ranged from 117,808 in 1969, to a low of 186 in 1994. Id. The winter-run Chinook population declined from an average of 86,000 adults from 1967 through 1969 to only 1,900 from 1987 through 1989, and continued to remain low with an annual average of 2,500 fish for the period from 1998 through 2000. Id. Between the time Shasta Dam was built and the listing of winter-run Chinook as endangered. Major impacts to the population occurred from warm water releases from Shasta Dam, juvenile and adult passage restraints at RBDD, water exports in the southern Sacramento-San Joaquin Delta, acid mine drainage, and entrainment at a large number of unscreened or poorly screened water diversions. Id. Population estimates for winter-run Chinook increased in the years 2001 through 2003 and in the preceding seven years. NMFS AR 5791. The 2003 run was the highest since the winter-run Chinook was listed. Id. The following table describes winter-run Chinook population estimates from RBDD counts and corresponding cohort replacement rates for the years 1986 through 2003. Id. DI point to increases in winter-run Chinook at RBDD and in the Five Year Moving Average of Population to contend the species is in ascendency and the no jeopardy analysis fully justified. NMFS AR 5791-93, 5933. (3) Status of Winter-Run. Numerous factors contributed to the earlier decline of winter-run Chinook through degradation of spawning, rearing, and migration habitats. NMFS AR 5792. The primary impacts include blockage of historical habitat by Shasta and Keswick Dams, warm water releases from Shasta Dam, juvenile and adult passage constraints at RBDD, water exports in the southern Sacramento-San Joaquin Delta, heavy metal contamination from Iron Mountain Mine, high ocean harvest rates, and entrainment in large numbers of unscreened or poorly screened water diversions. Id. Secondary factors include smaller water manipulation facilities and dams; loss of rearing habitat in the lower Sacramento River and Sacramento-San Joaquin Delta from levee construction; marshland reclamation; and interaction with and predation by introduced species. Id. Since the January 4, 1994, listing of the winter-run Chinook as endangered, several habitat problems that led to the species’ decline have been addressed and improved through restoration and conservation actions. NMFS AR 5792. These actions include: (1) ESA § 7 consultation reasonable and prudent alternatives for temperature, flow, and modified operation of the CVP and SWP; (2) State Water Resources Control Board decisions requiring compliance with Sacramento River water temperature objectives, which resulted in the installation of the Shasta Temperature Control Device in 1998; (3) a 1992 amendment to the authority of the CVP through the CVP, the CVPIA, which gave fish and wildlife equal priority with other CVP objectives; and dedicates a finite annual supply of 800,000 AF of CVP yield for fish and related environmental protections; (4) fiscal support of habitat improvement projects from the CALFED Bay-Delta Program (“CALFED”); (5) establishment of the CALFED Environmental Water Account; (6) EPA actions to control acid mine runoff from Iron Mountain Mine; and (7) ocean harvest restrictions implemented in 1995. Id. The temperature compliance location for winter-run remained at Bend Bridge in only one year out of ten years prior to the 2004 BiOp. NMFS AR 5843. The susceptibility of winter-run Chinook to extinction remains linked to the elimination of access to most of their historical spawning grounds and the reduction of their population structure to a small population size. NMFS AR 5792. “Recent trends in winter-run Chinook salmon abundance and cohort replacement are positive and may indicate some recovery since the [1994] listing.” Id. NOAA Fisheries has proposed upgrading the species from endangered to threatened. NMFS AR 5792, USBR AR 1819. The population, however, remains below the recovery goals established for the winter-run Chinook. Id. The recovery criteria for winter-run Chinook includes a mean annual spawning abundance over any thirteen consecutive years to be 10,000 females. Id. This has not been met. c. Spring-run Chinook. (1) Habitat. The spring-run was listed as threatened on September 16, 1999. NMFS AR 5785. The Central Valley ESU includes the Sacramento River Basin and its tributaries. NMFS AR 5785, 5934. The majority of the spring-run population is, as of the 2004 BiOp, located in Deer Mill, and Butte Creeks, with population expansions into Clear Creek. NMFS AR 5935. No spring-run critical habitat had been designated as of the 2004 BiOp. No explanation is provided why spring-run critical habitat designation was not made until September 2, 2005. Historically, spring-run Chinook were predominant throughout the Central Valley occupying the upper and middle reaches of the San Joaquin, American, Yuba, Feather, Sacramento, McCloud, and Pit Rivers, with smaller populations in most tributaries with sufficient habitat for over-summering adults. NMFS AR 5793. The Central Valley drainage as a whole is estimated to have supported spring-run Chinook runs as large as 600,000 fish between the late 1880s and 1940s. Before construction of Friant Dam, nearly 50,000 adults were counted in the San Joaquin River. Id. Following completion of the Friant Dam, the native population from the San Joaquin River and its tributaries was extirpated. Id. Spring-run Chinook no longer exist in the American River due to the operation of the Folsom Dam. Id. Naturally-spawning populations of spring-run Chinook are currently restricted to accessible reaches of the upper Sacramento River, Antelope Creek, Battle Creek, Beegum Creek, Big Chico Creek, Butte Creek, Clear Creek, Deer Creek, Feather River, Mill Creek, and Yuba River. Id. This species is mainly comprised of three self-sustaining wild populations, located at Mill, Deer, and Butte Creeks. NMFS AR 5785. (2) Population. Since 1969, the spring-run Chinook ESU (excluding Feather River fish) has displayed broad fluctuations in abundance ranging from 25,890 in 1982 to 1,408 in 1993. NMFS AR 5793. Though the abundance of fish may increase from one year to the next, the overall average population trend of the spring-run has a negative slope during this time period. Id. The average abundance for the spring-run is set forth in the following table. Id. NMFS AR 5793._ Evaluating the spring-run ESU as a whole, however, masks significant changes that are occurring among metapopulations. NMFS AR 5794. While the Sacramento River population has undergone a significant decline to a nominal to nonexistent population, the tributary populations have demonstrated a substantial increase. Id. Average abundance of Sacramento River mainstream spring-run Chinook has recently declined from a high of 12,107 for the period 1980 through 1990, to a low of 609 for the period 1991 through 2001, while the average abundance for tributary populations increased from a low of 1,227 to a high of 5,925 over the same time period. Id. Although tributaries such as Mill and Deer Creeks have shown positive escapement trends since 1991, recent escapements to Butte Creek, including 20,259 in 1998, 9,605 in 2001, and 8,785 in 2002, are responsible for the overall increase in tributary abundance. NMFS AR 5794. The Butte Creek estimates, which account for the majority of the spring-run Chinook ESU do not include prespawning mortality. Id. As the Butte Creek population has increased over the last several years, mortality of adult spawners has increased from 21% in 2002 to 60% in 2003 due to overcrowding and disease associated with higher water temperatures. Id. This trend may indicate that the population in Butte Creek may have reached its carrying capacity or are near historical population levels. Id. The extent of spring-run Chinook spawning in the mainstream of the upper Sacramento River is unclear. NMFS AR 5794. Few spring-run Chinook salmon redds (less than 15 per year) were observed from 1989 through 1993, and none in 1994, during aerial redd counts. Id. Recently, the number of redds in September has varied from 29 to 1005 during 2001 through 2003 depending on the number of survey flights. Id. In 2002, based on RBDD ladder counts, 485 spring-run Chinook adults may have spawned in the mainstream Sacramento River or entered upstream tributaries such as Clear or Battle Creeks. NMFS AR 5934. In 2003, no adult spring-run Chinook were estimated to spawn in the mainstream river. Id. Due to geographic overlap of ESUs and resultant hybridization since the construction of Shasta Dam, Chinook salmon that spawn in the mainstream Sacramento River during September are more likely to be identified as early fall-run Chinook rather than spring-run Chinook. Id. NMFS opined proposed OCAP operations will not impact the majority of the juvenile spring-run population because they are in tributaries outside the Project area. NMFS AR 5934. (3) Status. The initial factors that led to the decline of spring-run Chinook were related to the loss of upstream habitat behind impassable dams. NMFS AR 5794. Since this initial loss of habitat, other factors have contributed to the instability of the spring-run Chinook population and affected its ability to recover. Id. These factors include a combination of physical, biological, and management factors such as climatic variation, water management activities, hybridization with fall-run Chinook, predation, and harvest. Id. Spring-run Chinook adults are much more susceptible to the effects of high water temperatures because they must hold over for months in small tributaries before spawning. Id. The RBDD affects spring-run migration. Operational changes are not expected in the future. NMFS 5851. RBDD delays some 7.2% of the spring-run. NMFS 5921. Only 1% of this population is considered vulnerable to predation. NMFS 5852. Migration is impacted by direct salvage at the pumps; future operations will allegedly only slightly increase spring-run salvage. NMFS 5882-83. Migration can be affected by operation of the pumps, indirectly causing straying into the Central Delta. NMFS 5883. The indirect effect of the pumps is estimated to cause 33% mortality of spring-run juveniles under future operations. NMFS claims some indirect mortality would occur without the Project. NMFS 5931. At present, the Sacramento River mainstream supports 8% of the Central Valley spring-run ESU. NMFS 5846. Project operations will increase losses on the Sacramento River by 4% increasing the maximum total mainstream loss to 25%. NMFS 5935. In normal, dry and critically dry years, mortality increases as follows: Mortality Increases Water Year Type Normal Dry Critically Dry 20% 22% 82% NMFS 5921. Several actions have been taken to improve habitat conditions for spring-run Chinook including improved management of Central Valley water through the use of the CALFED Environmental Water Account (“EWA”) and CVPIA (b)(2) water; implementing new and improved screen and ladder designs at major water diversions along the mainstream Sacramento River and tributaries; and changes in ocean and inland fishing regulations to minimize harvest. NMFS AR 5795. Although protective measures have likely contributed to recent increases in spring-run abundance, the ESU is still below levels observed from the 1960s through 1990. Id. Threats persist from hatchery production (including competition for food, run hybridization, and homogenization), climatic variation, high temperatures, predation, and water diversions. Id. Because the spring-run population is confined to relatively few remaining streams and continues to display broad fluctuations in abundance, the population is at a moderate risk of extinction. NMFS AR 5795. This contradictory finding is not explained. 2. CV Steelhead. a. General Life History. CV steelhead were listed as threatened March 19, 1998. 50 C.F.R. § 223.102 (2006); 63 F.R. 13347. CV Steelhead can be divided into two life' history types based on the state of their sexual maturity at the time of river entry and the duration of their spawning migration, stream-maturing and ocean-maturing. NMFS AR 5799. Stream-maturing steelhead enter freshwater in a sexually immature condition and require several months to mature and spawn. Id. Ocean-maturing steelhead enter freshwater with well-developed gonads and spawn shortly after river entry. Id. The two life history forms are commonly referred to by their season of freshwater entry. Id. Stream-maturing steelhead are known as summer steelhead, and ocean-maturing steelhead are known as winter steelhead. Id. Currently, only winter steelhead are found in Central Valley rivers, although summer steelhead were present in the Sacramento River system prior to the commencement of large-scale' dam construction in the 1940s. Id. Presently, summer steelhead are only found in North Coast drainages, mostly in tributaries of the Eel, Klammath, and Trinity River systems. Id. Steelhead are iteroparus, which means they are capable of spawning more than once before death. NMFS AR 5799. It is rare for steelhead, however, to spawn more than twice before dying; most that do are females. Id. Although a great majority of steelhead spawn once, research indicates that repeat spawners are relatively numerous (approximately 17.2%) in California streams. Id. Steelhead spawn in cool, clear streams featuring suitable gravel size, depth, and current velocity, and may also spawn in intermittent streams. NMFS AR 5799. Most steelhead spawning takes place from late December through April, with peaks from January through March. Id. Winter steelhead generally leave the ocean from August through April and spawn between December and May. Id. Timing of upstream migration is correlated with higher flow events, such as freshets or sand bar breaches, and associated lower water temperatures. Id. The preferred water temperature for adult steelhead migration is 46°F to 52°F. Id. Thermal stress may occur at temperatures beginning at 66°F, and mortality is demonstrated at 70°F. Id. The preferred water temperature for steelhead spawning is 39°F to 52°F. Id. The preferred water temperature for steelhead egg incubation is 48°F to 52°F. Id. The minimum stream depth necessary for successful upstream migration is 13 cm. The preferred water velocity for upstream migration is in the range of 40 to 90 cm/s, with a maximum velocity, beyond which upstream migration is not likely to occur, of 240 cm/s. Id. ' The length of the incubation period for steelhead eggs is dependent on water temperature, dissolved oxygen concentration, and substrate composition. NMFS AR 5800. In late spring and following sac absorption, fry emerge from the gravel and actively begin feeding in shallow water along stream banks. Id. Steelhead rearing during the summer takes place primarily in higher velocity area pools, although some are also abundant in glides and riffles. Id. Winter rearing occurs more uniformly at lower densities across a wide range of fast and slow habitat types. Id. Some older juveniles move downstream to rear in large tributaries and mainstream rivers. Id. Steelhead generally spend two years in freshwater before emigrating downstream. NMFS AR 5800. Rearing juveniles prefer water temperatures of 45°F to 58°F, and have an upper lethal limit of 75°F. Id. Juveniles can survive up to 81°F with saturated dissolved oxygen conditions and a plentiful food supply. Id. It is recommended that dissolved oxygen concentrations remain at or near saturation levels with temporary reductions of no lower than 5.0 mg/1 for successful juvenile rearing. Id. Juvenile steelhead emigrate episodically from natal streams during fall, winter, and high spring flows. NMFS AR 5800. Emigrating CV steelhead use the lower reaches of the Sacramento River and the Delta for rearing and as a migration corridor to the ocean. Id. Juvenile steelhead in the Sacramento Basin migrate downstream during most months of the year, but the peak period of emigration occurred in the spring, with a much smaller peak in the fall. Id. b. Habitat. NMFS had not defined habitat or critical habitat for the CV steelhead as of October 22, 2004. Critical habitat was designated for CV steelhead in September 2, 2005. c. Population. Historically, steelhead were well-distributed throughout the Sacramento and San Joaquin Rivers. NMFS AR 5800. They were found from the upper Sacramento and Pit River systems, which are now inaccessible due to Shasta and Keswick Dams, south to the Kings and possibly the Kern River systems, also now inaccessible due to extensive alteration from water diversion projects. Id. The present distribution of steelhead has been greatly reduced. Id. The California Advisory Committee on Salmon and Steelhead reported a reduction of steelhead habitat from 6,000 miles to 300 miles. Id. at 5800-01. Historically, steelhead probably ascended Clear Creek past the French Gulch area, but access was blocked by Whiskeytown Dam in 1964. Id. at 5801. The historic CV steelhead run size is difficult to estimate given the scarcity of data, but it may have approached one to two million adults annually. NMFS AR 5801. By the early 1960s, the steelhead run size had declined to approximately 40,-000 adults. Id. Over the past thirty years, the naturally-spawned steelhead populations in the upper Sacramento River have declined substantially. Id. The estimated average adult steelhead population through the 1960s was 20,540 in the Sacramento River upstream of Feather River. Id. Steelhead counts at RBDD declined from an average of 11,187 for the period spanning 1967 through 1977, to an average of approximately 2,000 through the early 1990s, with an estimated annual run size for the entire Sacramento-San Joaquin system, based on RBDD counts, to be no more than 10,000 adults. Id. Steelhead escapement surveys at RBDD ended in 1993 due to changes in dam operations. Id. Around 2003 a comparison was made between tagged and untagged steelhead smolt catch ratios at Chipps Island trawl from 1998 through 2001, which produced an estimate that about 100,000 to 300,000 steelhead juveniles are produced naturally each year in the Central Valley. NMFS AR 5801. The Biological Review Team reached the following conclusion based on the Chipps Island data: If we make the fairly generous assumptions (in the sense of generating large estimates of spawners) that average fecundity is 5,000 eggs per female, 1 percent of eggs survive to reach Chipps Island, and 181,000 smolts are produced (the 1998-2000), about 3,628 female steelhead spawn naturally in the entire Central Valley. This can be compared with McEwan’s (2001) estimate of 1 million to 2 million spawners before 1850, and 40,000 spawners in the 1960s. Id. In the San Joaquin River basin, data from the California Department of Fish and Game trawl surveys indicate a decline in steelhead numbers in the early 1990s, with a total of twelve steelhead smolts collected at Mossdale in 2003. Id. Existing wild steelhead stocks in the Central Valley are mostly confined to the upper Sacramento River and its tributaries, including Antelope, Deer, and Mill Creeks and the Yuba River. NMFS AR 5801. Populations may exist in Big Chico and Butte Creeks, and a few wild steel-head are produced in the American and Feather Rivers. Id. Recent snorkel surveys (1999 through 2002) indicate steel-head are present in Clear Creek. Id. Because of the large resident O. mykiss population in Clear Creek, steelhead spawner abundance has not been estimated. Id. at 5801-02. Until recently, steelhead were thought to be extirpated from the San Joaquin River system. NMFS AR 5802. Recent monitoring has detected small self-sustaining populations of steelhead in the Stanislaus, Mokelumne, Calaveras, and other streams previously thought to be void of steelhead. Id. It is possible that naturally spawning populations exist in many other streams but are undetected due to lack of monitoring programs. Id. d. Status. Both the Biological Review Team and the Artificial Propagation Workshop concluded that the CV steelhead ESU is presently in danger of extinction. NMFS AR 5802. In the proposed status review, however, NOAA Fisheries concluded that the ESU in-total is not in danger of extinction, but is likely to become endangered within the foreseeable future, citing unknown benefits of restoration efforts and a yet to be funded monitoring program. Id. Steel-head already have been extirpated from most of their historical range in this region. Id. Habitat concerns for the CV steelhead ESU focus on the widespread degradation, destruction, blockage of freshwater habitat, and water allocation problems. Id. Widespread hatchery steel-head production within the ESU also raises concerns about the potential ecological interactions between introduced stocks and native stocks. Id. Because the CV steel-head population has been fragmented into smaller isolated tributaries without any large source population and the remaining habitat continues to be degraded by water diversions, the population is at high risk of extinction. Id. This evidence is materially inconsistent with the no jeopardy finding. IV. Legal Standards Of Review. A. Summary Judgment Generally. Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). A genuine issue of fact exists when the non-moving party produces evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. See Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir.1995). Facts are “material” if they “might affect the outcome of the suit under the governing law.” California v. Campbell, 138 F.3d 772, 782 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A court’s role on summary judgment is not to weigh the evidence or resolve disputed issues of fact; rather, it is to determine whether there are any genuine issues of material fact for trial. Abdul-Jabbar v. General Motors Corp., 85 F.3d 407, 410 (9th Cir.1996). B. Summary Judgment Under The Administrative Procedure Act. Courts reviewing agency decisions are limited to the administrative record. Flor ida Power & Light Co. v. Lotion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). “Judicial review of an agency decision typically focuses on the administrative record in existence at the time of the decision and does not encompass any part of the record that is made initially in the reviewing court.” Southwest Ctr. for Biological Diversity v. United States Forest Serv., 100 F.3d 1443, 1450 (9th Cir.1996). Since judicial review under the APA is generally limited to the administrative record, summary judgment is an appropriate procedure. See, e.g., Friends of Endangered Species v. Jantzen, 589 F.Supp. 113, 118 (