Judge Marsh is a good man, trying to do justice in his own way, but his ideas about salmon and what was causing the problems with salmon were all given to him by the propagators of the Great Salmon Hoax. When it came time for him to write an opinion, he repeated all of them.
Relying in part on what he candidly characterized as “semi-historical” background information,5 Judge Marsh began by stating, as if it were undisputed fact, that “the most significant ‘stress’ upon the river resource is industrial and commercial electric usage which rely upon the dams and hydropower operations”.6 He repeated the Northwest Power Planning Council’s politically-driven and scientifically-unsupportable conclusion (discussed in Chapter 13), that hydropower development caused 80% of the salmon losses.7 He suggested that harvest effects on the endangered salmon were minimal in part because of the Columbia River Fish Management Plan (CRFMP) he pushed the parties in United States v. Oregon to create.8
He then declared that “to permit non-parties to interfere with this carefully balanced process”—the CRFMP—would cause “chaos”, and revealed that
“it was with a continuing desire to avoid both confusion and chaos and to preserve what I feel is an essential ‘big picture’ perspective, that the case management committee and the Chief Judge of this district determined that cases which may impact the CRFMP, and which related to salmon harvest activities on the Columbia, be brought before me, as the judge presiding in United States v. Oregon.”9
Judges are normally assigned at random, to assure fairness. This assignment decision, which we learned about for the first time when Judge Marsh issued his opinion throwing us out of court, meant that we would never escape Judge Marsh’s efforts to preserve his “essential ‘big picture’ perspective”—a perspective generated by the anti-dam advocates that had appeared before him for years in United States v. Oregon. It always seemed as if he regarded us as the agents of chaos.
But it was really the Endangered Species Act that was the bringer of chaos. As former Northwest Power Planning Council member Kai Lee of Washington had warned in 1991, “a stock-based plan virtually requires measures to control the impact of mixed-stock fisheries, broadening the attack on the hydropower operators to an internecine struggle among fisheries”.10 Professor Lee did not foresee that the courts would refuse to enforce the Act against salmon harvest, avoiding the “internecine struggle” from implementing stock-based management, and instead align themselves with the harvest managers in the “attack on the hydropower operators”.
Others aligned with the harvest managers included the States of Oregon and Washington, which promptly intervened in the action, along with “Salmon for All”, representing gillnetters, and the Northwest Resource Information Center (Ed Chaney). Six tribes and the State of Idaho sought and obtained the right to file briefs without being bound by the results of the case, as “friends of the court”—amicus curiae.
5 PNGC v. Brown, 822 F. Supp. at 1484 (discussing “genetic pollution” from hatcheries based on B. Brown, Mountain in the Clouds (1982)).
9 PNGC v. Brown, 822 F. Supp. at 1486.
10 K. Lee, “Rebuilding Confidence: Salmon, Science, and Law in the Columbia Basin”, 21 Envt’l Law 745, 797 (1991).
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