Although the focus of the PNGC v. Brown court decision was on standing, it was not our objective to set precedents on questions of procedure. The first motion we filed was a claim for summary judgment on two substantive claims alleging that the Endangered Species Act prohibited commercial harvest of endangered Snake River salmon. Both of these claims, if successful, would have shut down salmon harvest wherever it took an appreciable percentage of endangered salmon along with the non-endangered salmon. There is not a doubt in my mind but that if we had won this lawsuit, it would have had a greater positive impact on salmon populations than anything the federal government has yet accomplished.
The first claim was that under the Endangered Species Act, a hunting season on endangered animals cannot be authorized at all. The focus of the Act is, of course, on conserving endangered species, not killing them. The Act even defines “conservation” with the idea that one would never “conserve” endangered species by catching and killing them except “in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved”.15 Nobody thinks that we have a salmon overpopulation problem in the Columbia River Basin.
The precise language we relied on in the Act was the prohibition against “taking” any endangered species.16 Under § 7 of the Act, when the National Marine Fisheries Service reviews agency action (including its own action of authorizing commercial salmon harvests), it has the power to allow “the taking of an endangered species or a threatened species incidental to the agency action”.17 The regulations define the concept of an “incidental take”: “Incidental take refers to takings that result from, but are not the purpose of, carrying out an otherwise lawful activity . . .”18 No one disputes, for example, that if a salmon is hit by a turbine blade and killed, that is an incidental taking of salmon.
We thought that when the gillnetters dropped their nets in the water, knowing that the population was (in the in-river case) as much as 10-15% endangered, catching endangered fish was not “incidental” to the activity. It was the whole idea. The government had two answers to this.
First, the government asserted, contrary to its own documents, that there was really no proof that endangered salmon would be caught. We therefore questioned the government’s witnesses, getting nowhere:
“Q. Sitting here today, do you have any doubt whatsoever that members of the listed species were caught in the ocean and in in-river fisheries in 1992?
“MR. DISHEROON: I object to asking his opinion, this matter is covered by the administrative record.
“Q. Go ahead.
“MR. DISHEROON: He’s not here to give expert opinion testimony. He won’t answer the question. . . .”
Q. Hold on a second. In your opinion, Mr. Smith, does one have to be an expert to know whether or not any of the listed species were caught in the ocean or in the river in 1992?
“MR. DISHEROON: I have the same instruction [not to answer].”19
Notwithstanding the government’s obstructionism, the courts gave short shrift to the “it’s not happening” defense.
The second defense was that there was no fishing season on endangered fish. The government claimed that the fishing season was "targeted at" the non-endangered fish, and that it was only by accident that endangered ones were caught.
The concept of catching endangered fish "by accident" was new to fisheries management. Fisheries managers are trained in Fisheries Management 101, so to speak, that mixed-stock fisheries are harmful to weak stocks. But they were always called "mixed-stock" fisheries, with no one pretending that the harvesters weren't trying to catch every fish they could. There was such a thing as accidental catch, which had a technical term for it: "bycatch". But "bycatch" is used to describe what happens when you are out fishing for one kind of seafood and catch another, like the bycatch of salmon by shrimp trawlers, or the bycatch of salmon in groundfisheries.
While the fishermen could claim that they really didn’t want to catch endangered salmon, courts had refused to allow this defense in criminal prosecutions under the Endangered Species Act. For example, cases had established that anyone charged with "taking" an endangered sea turtle, punishable by imprisonment, is guilty whether or not he or she knew that the particular turtle was endangered. All the person had to know was that he or she was in possession of a turtle.20 Here, there was no dispute that the fishermen were trying to catch Onchorychus tshawystcha—the chinook salmon species. They denied that they were trying to catch the ones that would later swim up the Snake River, but that shouldn’t have made any difference given the turtle decisions.
Judge Marsh quickly rejected this attack on the salmon harvest. After first declaring that the fishermen had an interest in “harvest of genetically superior listed wild stocks”, Judge Marsh declared that none of the fisheries were "'directed at' listed species". Our affidavit from a fishery expert who averred that the fisheries were directed at listed stocks was simply ignored. Because summary judgment was granted, the case was decided on the papers, without any cross-examination of the government's experts.
On appeal, the Ninth Circuit agreed with Judge Marsh, declaring that “it cannot be believed that Congress intended to ban all salmon fishing in the Columbia and Snake Rivers and in the Pacific Ocean whenever one salmon stock, indistinguishable by sight, became endangered.”21 While this may have some intuitive appeal, it is not consistent with prior Endangered Species Act decisions. For example, Congress didn’t intend to stop logging merely because owls, one of many species in the forest, became endangered, but the Ninth Circuit stopped the logging anyway. Congress didn’t intend to stop construction of the Tellico Dam in Tennessee merely because the snail darters became endangered (and passed appropriations for the dam knowing about the snail darter problem), but the Supreme Court stopped the dam construction. As far as I know, this is the first time and only time the "Congress didn’t intend it" defense ever worked in the Endangered Species Act context.
But the Endangered Species Act contained even stronger language that should have stopped fishermen from harvesting endangered salmon. Under the ESA, there is an absolute ban on trade or commerce in endangered species.22 NMFS cannot issue a permit to get around that.
We asked the court to rule that the federal government could not issue a permit allowing a commercial harvest when everyone knew the result would be the sale of lots of endangered salmon. Here we cited cases where other courts had said that the federal government could not blind itself to the consequences of its actions. By virtue of the government's approval, there was (and still is), commerce in endangered salmon. In the fish markets of the great cities (which prize highly the gillnetted spring chinook salmon), you can, as in the movie The Freshman, dine on endangered species. But you'll never know whether the particular salmon you are eating is endangered, so you shouldn't pay any premium for that reason (as in the movie).
The judges made short work of this claim. Judge Marsh refused to enforce the provision because, according to him, Congress had obviously intended to allow "incidental take" of salmon and the prohibition on commerce in endangered species would interfere with NMFS’s ability to allow "incidental take". The Ninth Circuit disposed of the claim with two sentences:
“To these contentions the defendants make a short answer: it is impossible to enforce the trade or transport law as to the few forbidden fish harvested in the ocean or rivers. Impossibility in our view is sufficient answer. It was not the intention of the statute to ban all salmon fishing or to place upon the federal defendants an enforcement burden that no one could accomplish." 23
Again, under this logic, the federal government could have defended continued old growth logging by saying it was impossible to enforce measures to protect spotted owls, because it was impossible to tell whether they were nesting in the trees or not.
After getting the Ninth Circuit’s decision, we filed a petition for rehearing, trying to explain to the judges that enforcing the plain language of the law would not shut down all salmon fishing, just destructive mixed-stock harvests. The Ninth Circuit offered no response to the petition for rehearing. Unfortunately, my clients determined not to appeal the case to the Supreme Court; as a statistical matter, the vast majority of cases are not accepted for review.
As a result, more than five years after the Snake River salmon were supposedly under the protection of the Endangered Species Act, none of the government's formal harvest management plans really address the problem of harvesting Snake River salmon. The Columbia River Fish Management Plan doesn’t use abundance of Snake River salmon as a guideline for managing in-river harvest. The elaborate formal models and stock-by-stock accounting by the Pacific Fisheries Management Council (responsible for ocean harvest off the coast of Oregon, Washington and California) do not manage by abundance of endangered Snake River salmon.24 Things are no better up in Alaska, where the federal regulators have simply abdicated their role to the state.
No other Circuit Court has addressed this question, and it seems likely that some might resolve it differently. For a while, we talked about bringing a second action in the United States Court of Appeals for the District of Columbia, but we never found anyone who wanted to do it. Perhaps someone will call someday and we can give this another try.
The State of Oregon has its own Endangered Species Act modeled on the federal Act. Lawyers working for the Oregon Department of Fish and Wildlife decided that our arguments in federal court would support an injunction against harvest under the state statute in state court, and convinced Oregon’s Attorney General to issue an opinion so stating.25 Indeed, they concluded that even if the harvest were authorized by federal law, Oregon law would forbid it if listed fish were taken. Needless to say, they didn’t tell us about the opinion.
The Oregon Department of Fish and Wildlife circulated the Attorney General’s opinion among fishermen and their legislators to mobilize support for amending Oregon’s Endangered Species Act to allow the harvest of endangered species. In a process regrettably typical for Oregon, the Act was amended so quickly we never even heard about it until after it had passed. As far as I know, this significant weakening of environmental laws in order to promote commercial harvest of endangered fish was not reported in a single Oregon newspaper.
17 16 U.S.C. § 1536(b)(4)(B) (emphasis added).
19 Deposition of J. Gary Smith, Jan. 7, 1993, at 140-41.
20 See, e.g., United States v. Nguyen, 916 F.2d 1016 (5th Cir. 1990); see also United States v. Ivey, 949 F.2d 759, 766 (5th Cir. 1991), cert. denied, 113 S. Ct. 64 (1992).
21 PNGC v. Brown, 38 F.3d at 1067-68.
22 16 U.S.C. § 1538(a)(1)(E)-(F).
23 PNGC v. Brown, 38 F.3d at 1068.
24 See, e.g., PFMC, “Preseason Report I: Stock Abundance Analysis for 1997 Ocean Salmon Fisheries”, at II-18 to II-19 (Feb. 1997). This report contains detailed projections and indices for five distinct stocks of fall chinook salmon, but not endangered Snake River fall chinook salmon. Simple estimates of abundance for endangered stocks are prepared for submission to NMFS, but are not really used in planning harvests.
25 T. Kulongoski, Opinion dated Feb. 21, 1995.
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