Fishing Without Permits: Mootness Strikes Again

“. . . there is no method, in good conscience, by which any commercial harvests of upriver spring chinook or steelhead, at present run levels, can be be tolerated.” J. Greenley, Idaho Department of Fish and Game (1976).

More than twenty years later, with significantly lower runs, the National Marine Fisheries Service continues to authorize commercial harvest of the now-endangered upriver spring chinook.

Our next effort to apply the Endangered Species Act to salmon harvest involved  10 of the Act, which declares that anyone who captures endangered species must have a permit to do so. The permit application process allows for public comment; it is not easy to get permits. If the law were applied to salmon harvest as to all other areas of human endeavor, each fisherman likely to harvest endangered salmon would need a permit to do so. That has never happened.

In some cases, states have applied for  10 permits designed to clear their fishing seasons (and protect all the fishermen). That wasn't happening either. Instead, the States of Oregon and Washington determined fishing seasons as part of process supervised by Judge Marsh, in committees with federal, state and tribal members.

The National Marine Fisheries Service issued opinions to itself, the U.S. Fish and Wildlife Service, and the U.S. Bureau of Indian Affairs, determining that pursuant to  7 of the Endangered Species Act, the federal involvement in salmon harvest was not sufficient to jeopardize the continued existence of Snake River salmon. These opinions typically declared that some single, arbitrary, total harvest percentage in the Columbia River would not jeopardize the salmon. But without more specific permits and permit conditions, no one could really tell whether the "no-jeopardy" conditions in the federal  7 opinion would be met.

As the spring 1995 gillnetting season was about to start, once again there were no  10 permits. Indeed, there wasn't even a  7 biological opinion. For several years, the government waited until the day before the scheduled fishing season was supposed to start before issuing the biological opinion. This did the fishermen no favors, because they were not sure the opinion would authorize the requested season (although it usually did, albeit sometimes with minor modifications). And this also did us no favors, because by the time one could mount an effective legal challenge to the opinion, the season would be over.

On February 11, 1994, the National Marine Fisheries Service issued its biological opinion authorizing federal participation in setting the spring gillnetting season. The season was a mixed-stock harvest; among the several stocks that would be harvested were endangered Snake River spring chinook salmon, which would comprise about 13% of the total fish to be harvested. This, the National Marine Fisheries Service declared, would not jeopardize the continued existence of the salmon.

So on February 15, 1994, I filed a complaint and motion for a temporary restraining order against the opening of the spring chinook season, which was to occur at noon that day. The gist of our argument was that no one had applied for any permits to kill 13% of the endangered fish in a public process required by  10 of the Endangered Species Act. We argued that the States of Oregon and Washington were not parties to the  7 consultations between the federal agencies. The plain language of the Endangered Species Act required that they, or even the fishermen, get a permit in a public process before they could kill endangered species.

Although the whole idea of a temporary restraining order is to get immediate relief, on February 16th the case was reassigned to Judge Marsh, who was then in California. He scheduled a hearing for Friday afternoon, February 18th. He was not happy with my legal arguments, and accused me of “tak[ing] a lot of the Court’s time trying to figure out what you are really talking about”.26 But once he had figured out the argument, he lost no time in disposing of it:

“The problem we’ve got here, and taking it more critically, I don’t know when this train wreck is going to occur, but I can see from the many other cases that are coming into this court . . . I have often said that is going to make the spotted owl look like a chickadee.

“Now, . . . since the predominance of these cases before me, I cannot look at any of them in a vacuum. I have to look at them all collectively, and I have to make sure that when I pull the string one way, I don’t unravel something in another case or vice versa. And it is a critical problem that I’m extremely serious about.”27

Judge Marsh then made it clear which case he was worried about “unraveling”: United States v. Oregon.

“Now once before in this court there was an injunction against the State of Oregon and the State of Washington issued by a State of Oregon court. And suffering all of the despair of comity, state, federal relation, I found it necessary to enjoin the State Court of Oregon. When I did that, I made this statement: The absolute need for coordinated and centralized management of fishery [re]source management in the Columbia River to protect fish and the balance between treaty Indians and non-Treaty Indians and fisheries, if compact members or nonparties are permitted to interfere with this carefully balanced process by seeking an eleventh hour restraining order from judges unfamiliar with the cases and its background, that state fishery management agency would be confronted with confusion and chaos.”28

I could not help but feel that the most important factor for Judge Marsh was not the protection of endangered salmon, but the protection of fishery management agencies from “confusion and chaos”.

Having explained his motivations, Judge Marsh then held that the setting of fishing seasons by the States of Oregon and Washington “does qualify as [federal] agency action under  7 and does qualify to ask for the conference through NMFS to see whether or not the operations of the compact plan and fish management plan as adjusted year to year is going to affect the listed species”.29

Judge Marsh did not explain how actions by states, even two states acting together in an interstate compact, could constitute "federal agency action" subject to  7, or how the states could obtain the protection of  7 consultations when they did not apply for such protection or, indeed, have any formal status in the consultations whatsoever. At my request, and with the consent of all parties, he deemed the hearing to be called a hearing on a preliminary injunction (which typically follows a hearing on a temporary restraining order), so as to facilitate an immediate appeal.30

The United States Court of Appeals for the Ninth Circuit, however, was less cooperative. We filed the appeal on February 22nd, along with an emergency motion to have the appeal heard immediately, since the fishing season was half over. Judges Schroeder and Wiggins immediately denied the motion, but did agree to grant the appeal expedited status, so that it would be heard by the Court in May, long after the harvest was over.31

Then another panel of Judges, Alarcon, Norris and Leavy, declared that the action was moot, and that the appeal must be dismissed. In our briefs on appeal, we had cited no fewer than three prior appeals from fishing seasons on the Columbia River that had not been dismissed as moot.32 The Ninth Circuit opinion did not even mention these cases, which formed the most relevant authority on the question of mootness. Once again, the Ninth Circuit had told us to go back and present exactly the same claim all over again.

26 Peterson v. Washington, No. 94-167-MA, Hrng. Tr. at 44 (D. Or. Feb. 18, 1994).

27 Id. at 44-45.

28 Id. at 46.

29 Id. at 48.

30 Id. at 54.

31 Peterson v. Washington, No. 94-35160, Order at 1 (9th Cir. Feb. 22, 1994); Peterson v. Washington, No. 94-35160, Order at 1 (9th Cir. Feb. 24, 1994).

32 United States v. Oregon, 657 F.2d 1009, 1012 n.7 (9th Cir. 1981); United States v. Oregon, 718 F.2d 299, 302 (9th Cir. 1983); United States v. Oregon, 769 F.2d 1410, 1414 (9th Cir. 1985).

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