The Legal Attack on Transportation

Armed with the report of the Ad Hoc Transportation Review Group and a raft of affidavits from the anti-transportation activitists, the Sierra Club Legal Defense Fund filed suit in the United States District Court in Portland. Like all the other salmon cases, it was assigned to Judge Malcolm Marsh. On April 22, 1993, Judge Marsh held a hearing on their motion for emergency injunctive relief against the transportation program. We filed a motion to intervene in the case before the hearing, but Judge Marsh would not rule on our motion, entitling us to participate as parties. We could be mere observers until he ruled on our motion.

I was personally disappointed because, guided by Dr. Chapman’s critiques of the Review Group, I was prepared to cross-examine the state and tribal experts criticizing transportation and demonstrate that they lacked any scientific credibility. The highlight of my examination was going to be an attack on their claims that transportation didn’t work for wild fish. Using the studies they had purported to review, it was possible to simply count the fish and show that transportation was twice as effective for wild fish—if one followed the experts’ unscientific practice of drawing conclusions from the limited set of data that was available. I was also prepared to show, by walking the experts through the data charts in the transportation studies, that returns to the spawning grounds were higher for transported fish.

Instead of allowing us to question the witnesses, Judge Marsh ordered them into the jury box as a group and began questioning them himself. Luckily, he knew enough about the issues that his “talk show” method of conducting proceedings elicited some relevant evidence, although not as much as we would have.

It quickly became clear that the NMFS scientists who supported the program were more credible than the state and tribal witnesses who attacked it. Only after the hearings were over did Judge Marsh allow us to intervene in the case, explaining later that he had done so because of the “potential power loss” of 2.2 million megawatt-hours from the changes sought by plaintiffs.25 Though the environmentalists were allowed to file their own expert affidavits, we were not. On December 13, 1993, Judge Marsh refused to “supplement the record” with an affidavit from Dr. Chapman.

Ultimately, Judge Marsh may have been persuaded that transportation was a good thing for the fish, for he denied plaintiffs’ claims that transporting the fish violated the Endangered Species Act. When the environmentalists sought to appeal, the Ninth Circuit dismissed their Endangered Species Act claim as moot.26

25 NRIC v. NMFS, slip op. at 6, No. 93-870-MA (D. Or. Dec. 22, 1993) (motion granted April 4, 1993)

26 NRIC v. NMFS, 56 F.3d 1060 (9th Cir. 1995).

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