In November 1992, the federal government (later joined by the State of Oregon) filed a motion to dismiss our complaint for lack of "standing". In simple terms, the government asserted that the Pacific Northwest Generating Cooperative (PNGC), the Public Power Council (PPC), and my clients the direct service industries (DSIs) had no legitimate interest in salmon. According to the government, these parties were unworthy plaintiffs to bring suit under the Endangered Species Act because they sought to protect their economic interests.
Of course, the government couldn't make this argument if review were limited to the “administrative record”. The courts have invented an exception to the “administrative record” rule that allows the government to question plaintiffs before trial to gather facts for a challenge to “standing”. In this case, the government took the deposition of Steve Waddington, Deputy Director of the DSI office.
We, however, were unable to gather the corresponding facts from the government. When the government’s lawyers filed an affidavit from BPA’s Walt Pollock, and we sought to take his deposition to question him about the bases for his testimony, Judge Marsh refused to allow the deposition to go forward. He justified this by saying the evidence was not needed, because “I am assuming that there is a link between harvest reductions and BPA expenditures”.11 “Plaintiffs have adequately demonstrated that an increase in their power rates is as inevitable as death and taxes and that a portion of that increase will be attributed to endangered species protection measures”.12
Then, however, Judge Marsh consulted his expert in a different harvest allocation case, Dr. Howard Horton, to obtain data which he concluded demonstrated that even if we prevailed on our harvest claims, we would get “at best, a 20.6% reduction in adult Snake River fall chinook mortality”.13 This, he declared, was “simply too tenuous a connection with the lower power rates and power stability sought by plaintiffs”.14
This calculation, which we learned about for the first time when we read his opinion, ignored the fact that the principles we sought to establish would achieve far greater mortality reductions. It ignored the evidence that even a 20 percent reduction in mortality would, according to the computer models, produce rising (instead of falling) salmon populations. Federal judges are not supposed to make these sorts of calculations on their own, without even holding a trial. Under the Federal Rules of Civil Procedure, “summary” judgment must be denied if there are any disputes of fact. Disputes of fact are supposed to be resolved by presenting evidence in open court, at a trial.
Having found that there was no sufficient link between the overfishing cited in our complaint and increased power rates, Judge Marsh then declared that Article III of the U.S. Constitution prevented the federal judiciary from even considering the merits of our claims. He relied primarily on a U.S. Supreme Court case where environmentalists attempted to challenge the construction of a water project in Egypt because they might someday want to go there, and the water project might someday reduce the populations of endangered crocodiles that they might someday want to observe.15
The DSIs, PPC and PNGC were not going to be injured someday. They were already paying, just by themselves, most of the Bonneville Power Administration’s fish and wildlife costs through their electric power purchases, and the link between overfishing and increased fish costs was so clear that the Judge had assumed it to be true in order to deny them the right to question Mr. Pollock.
Judge Marsh went on to declare that even if the Constitution did not bar the Courts from considering their claims, they could not sue because they had a “conflict of interest”. In what became the “sound bite” for the case, Judge Marsh declared:
“To permit these plaintiffs to proceed with their claims under the ESA would be akin to permitting the fox to complain that the chickens have not been fed—sure, he has an interest in seeing that the chickens are well fed, but it’s just not the same interest the farmer has, nor is it an interest shared by the chickens.”16
Righteous environmentalists crowed that Judge Marsh had “scornfully questioned the motives of the industries”.17
Judge Marsh’s attitude toward the fishermen was far different. According to him, their “central interest is the fish”.18 Lost in all this rhetoric was the “interests of the chickens” or the salmon themselves. In elevating those who seek to kill and eat the fish over those who seek to generate electricity, and minimize adverse impacts on fish in a sensible fashion, Judge Marsh fashioned a law of standing that bore no resemblance to the law passed by Congress.
That law is simple. Under the Endangered Species Act, "any person" may file suit to enjoin the federal government from violating the Act.19 Many courts have said this means what it says: anyone, even a corporation (specifically defined as a "person" by the Act20), can bring a suit under the ESA.
On appeal, the United States Court of Appeals for the Ninth Circuit reversed Judge Marsh’s standing ruling. After noting that Judge Marsh was “highly knowledgeable in these matters from his former judicial experience”, Judges Browning, Kozinski and Noonan relied upon all of his findings, including his recitation of the elements of the Great Salmon Hoax.21 They ignored our objections to his finding facts without a trial, and declared that it was “far from obvious that the benefit to the species [from the relief sought] will be of sufficient magnitude to require the Bonneville Power Administration to change the spill and flow requirements designed to aid the species or lower the rates it must charge in order to finance conservation of the species”.22
They did reject the fox/chicken coop analogy, noting that “a narrow or cynical understanding of economic interest is not decisive”. They recognized that “under the regulatory system governing these hydropower users, they may actually derive some benefit from the health of the rivers and the fish within them. The plaintiffs may thus be partners in the preservation of the species.”23 Accordingly, they decided that our clients had a right to ensure that the procedures required by the Endangered Species Act were followed, even if they could see no direct link to BPA electricity prices.
Our success in reversing Judge Marsh was one of the very few times commercial interests have gotten standing to sue under environmental laws in the Ninth Circuit. Other panels of that Court have continued to deny standing to commercial groups. Perhaps the low point in Ninth Circuit jurisprudence was reached in August 1995, when one of the Court's most prominent liberals, Judge Reinhardt, issued an opinion in Bennett v. Plenert. The plaintiffs were "two ranchers and two irrigation districts located in" Oregon. They challenged the Bureau of Reclamation's decision "that the water level in two reservoirs should be maintained at a particular minimum level in order to preserve two species of fish". The plaintiffs claimed that "there is no evidence to support the [government's] conclusion that the long-term operation of the [reservoirs] would adversely affect" the fish. The Court never reviewed the accuracy of plaintiffs' claims.
Instead, the Court decided to act as if the claim were true: that there really was no evidence that the water the government was taking away from the irrigators was needed to preserve the fish. The Court then held that Congress did not really mean "any person" could sue when it passed the Endangered Species Act. Congress, said the Court, meant any person "whose interest was arguably within the zone of interests sought to be protected by the statute". And the courts would decide whether any particular interests were in that "zone of interests". The ranchers and irrigation districts were not in the zone of interests, because "only plaintiffs who allege an interest in the preservation of endangered species" could ever sue.
In short, according to the Ninth Circuit, when administrative agencies violate the Endangered Species Act, and interpret it far more broadly than Congress ever intended, the judiciary is not supposed to stop them. Many people see nothing wrong with that, but they have never had their property or livelihoods threatened by lawless government action. The Ninth Circuit's opinion emboldens federal agencies (and the political appointees who control them) to violate the law. They think that no one can stop them—a fact that both government attorneys and government employees have told me more than once during the progress of the salmon cases.
Fortunately, on March 19, 1997, the United States Supreme Court reversed the Ninth Circuit's Bennett v. Plenart decision in a unanimous opinion. The Court quickly dismissed the argument that the irrigators lacked standing, writing that “[i]t is difficult to understand how the Ninth Circuit could have failed to see [how to interpret the Supreme Court’s standing cases]”.24 Responding to the notion that the law only allowed suits that would be protective of endangered species, and not protective of economic interests, the Court explained:
“The obvious purpose of the requirement that each agency ‘use the best scientific and commercial evidence available’ is to ensure that the ESA not be implemented haphazardly, on the basis of speculation or surmise. While this no doubt serves to advance the ESA’s overall goal of species preservation, we think it readily apparent that another objective (if not indeed the primary one) is to avoid needless economic dislocation produced by agency officials zealously but unintelligently pursuing their environmental objectives.”25
Over time, this opinion could begin to improve the quality of Endangered Species Act decisions in the courts, because someone besides environmentalists might be bringing the suits. But economic interests will probably still have to fight to get standing to invoke other environmental laws, like the National Environmental Policy Act, that would prevent some of the irrational decisionmaking now going on.
The larger problem is that law itself, and the Endangered Species Act in particular, remains too vague and ambiguous. When there is no law, endangered species themselves can easily become tools exploited to achieve other policy objectives, typically the environmentalist objective of limiting growth. When environmentalists sue to save a particular species, it is nearly always because there is some other goal, and even when the government invokes the Endangered Species Act, there is often another goal. As set forth in Chapter 13, below, an overriding goal for fish and wildlife agencies in the Pacific Northwest is obtaining funding for their programs and personnel. By pushing their anti-dam agenda for decades, they have concealed their own mismanagement, extracted funding for the largest fish and wildlife program in the world, and wasted nearly all of the money.
11 PNGC v. Brown, 822 F. Supp. at 1502 n.53.
15 Lujan v. Defenders of Wildlife, 112 S. Ct. 2130 (1992).
16 PNGC v. Brown, 822 F. Supp. at 1504.
17 J. Cone, A Common Fate 276.
21 PNGC v. Brown, 38 F.3d at 1060.
24 Bennett v. Spear, No. 95-813 (Mar. 19, 1997).
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