“The fundamental goal of the NEPA is to provide high quality scientific analysis before decisions are made. Existing harvest management agreements and incidental take statements were made in violation of this principle . . .” Idaho Department of Fish and Game (1997).33
James Ramsey is a retired manager for Northwest Aluminum in The Dalles. He has lived there for decades. He has fished all his life, and even in his 70s takes frequent fishing trips. He remembered back in the 1960s fishing for salmon in the river, and listening to the old-timers talk about how increasing numbers of gillnetters downriver were going to wipe out the salmon. He watched as they put in The Dalles Dam, and how the salmon learned to swim around it on their way upstream.
For our next salmon lawsuit, we decided to focus on harvest, and to file suit along with Mr. Ramsey to avoid possible standing problems. We brought the suit in Seattle, the location of the regional headquarters of the National Marine Fisheries Service, the primary defendant, in an effort to try to get away from Judge Marsh. The suit was assigned to Judge Dwyer, the same federal judge who was instrumental in shutting down logging on National Forest Service land to protect the spotted owl.
The government, sensing in Judge Marsh a friendly forum for claims protective of salmon harvest, immediately moved to transfer the case to Judge Marsh. They stressed his experience in salmon cases, and claimed that this new action involved the very same issues as were pending in Portland. That was only partly true, since this case focused on a different federal statute, but Judge Dwyer went ahead and transferred the case over our objections.
Our claim was simple, but broad in scope. It challenged the salmon harvests in the Columbia River, on the Pacific Ocean off the coasts of Oregon, Washington and California, and the harvest off the coast of Alaska in the Exclusive Economic Zone subject to federal regulation. The primary claim was that these salmon harvests constituted "major federal actions" within the meaning of the National Environmental Policy Act (NEPA). NEPA requires that the federal goverment prepare an "environmental assessment" or "environmental impact statement" assessing the effects of major federal action.
The federal Council on Environmental Quality has declared that the "heart" of these analyses is the consideration of alternatives to the proposed action. Our main goal was to require the federal government to begin to look at alternatives to harvesting endangered salmon. In particular, we stressed that fish could be marked, caught alive, and the endangered and other wild fish thrown back alive. NEPA also requires consideration of the full range of environmental impacts arising from major federal action. In our view, the overriding imperative to continue harvesting endangered fish was causing impacts throughout the Columbia River Basin as fishery agencies shut down or modify logging, grazing, mining, recreational boating, and, of course, hydroelectric power generation.
Because the fishery agencies manipulate the Endangered Species Act to protect harvest at the expense of other economic sectors, it seemed logical to conclude that the environmental impact of their harvest decisions range as far as propelling the construction of new power plants.
In the case of the Alaska and Columbia River harvest, the federal agencies ignored NEPA entirely. They did, of course, offer excuses. As to the Alaska harvest, they pointed out that the federal officials had delegated responsibility for managing the harvest to the Alaska Department of Fish and Game, a bureaucracy regarded in some circles as a wholly-owned subsidiary of a powerful fishermen's lobby group, the Alaska Trawlers' Association.
As to the Columbia River harvest, the federal agencies claimed that the harvests did not constitute federal action, because the harvest proceeded in accordance with state or tribal fishing regulations. While that was true, the harvest was also reviewed by the National Marine Fisheries Service, the U.S. Fish and Wildlife Service, and the Bureau of Indian Affairs. Indeed, NMFS issued an "incidental take statement" under the Endangered Species Act, reviewed in our spring gillnetting season case, declaring that the commercial harvest of endangered salmon under those regulations was a lawful "taking" of endangered species.
We thought that our new claims would put Judge Marsh on the horns of a dilemma. Having already ruled in the spring gillnetting case that the state harvests were sufficiently "federal" so that no one had to apply for permits to kill endangered salmon, we thought he would have a difficult time holding that they were now "state" action for purposes of the National Environmental Policy Act.
Judge Marsh proved inventive, however. He suggested that the in-river harvest constituted "judicial action" exempt from NEPA because he had approved a Consent Decree years before under which the federal, state and tribal officials continued to negotiate to set harvest levels. The federal government did not attempt to defend this ruling on appeal. Judge Marsh then held that the Alaska harvest was, as the Justice Department claimed, a state action with no federal involvement—even though the Director of NMFS' Alaska office reviewed and approved the state's decisions.
As to the Pacific Ocean harvest, Judge Marsh declared that because harvest levels had been cut since 1993, the issue was now moot. Once again, mootness allowed unlawful action to evade review. We tried to explain that the federal defendants were refusing again to consider selective harvest methods or broader environmental impacts, but Judge Marsh ignored those claims.
Reviewing Judge Marsh's decision, the Ninth Circuit affirmed the finding of mootness, but could not affirm the rest of it. Obviously reluctant to rule in favor of Mr. Ramsey and the DSIs, the panel declared it was "compelled to conclude" that the Alaska and in-river harvests violated NEPA.
On January 22, 1997, the federal government announced that it would prepare a single EIS to consider the environmental impacts of all West Coast fisheries that might affect not only the endangered Snake River salmon, but also the steelhead, coho and sea-run cutthroat trout “species” that had been listed under the Endangered Species Act (or were proposed for listing).
The government also agreed to include a study of alternatives, including substantial reductions or elimination of harvest, and various means of selective harvest that would avoid capture of listed stocks.
As of 1997, we are all pretty skeptical that the EIS will consider any meaningful reforms to salmon harvest practices. The first thing that the National Marine Fisheries Service did was put Joseph Blum, the former director of the American Factory Trawler Association, in charge of preparing the EIS.34
33 Letter, S. Huffaker (Chief, Bureau of Fisheries) to J. Blum (NMFS), Feb. 27, 1997, at 4.
34 J. van Amerongen, “Feds Probe Impact of Salmon Fishing”, Alaska Fisherman’s Journal, March 1997.
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