As explained above, Governor Andrus believed that drawdowns of the Lower Snake dams offered the best hope for protecting irrigators. Governor Andrus instructed his Attorney General to file suit in federal court in the District of Idaho, challenging NMFS’ conclusion that hydropower operations, as modified by NMFS, would not jeopardize the continued existence of Snake River salmon. The suit was filed in early 1993, and assigned to Judge Ryan, who was too ill to preside. Over both Idaho's and our strenuous objections, the case was transferred out of Idaho to Judge Marsh.
Idaho never came forward and admitted that what it was after was drawdown. Formally, the suit sought an order setting aside NMFS' 1993 biological opinion as arbitrary, capricious, and contrary to law. Idaho obtained affidavits from experts who believed that when salmon populations reached low levels, an “extinction vortex” could occur. These experts claimed that the “extinction vortex” would cause more rapid extinction than the government had considered in its review of hydropower operations. Idaho also complained that NMFS’ use of computer modeling was inadequately explained.
Applied to a genuine species, where the number of potential breeders was extraordinarily low (like the finches on Darwin’s islands), there was at least theoretical merit to "extinction vortex" theory. Applied to a context where the species numbered in the millions, the theory was junk science. The particular population model used by Idaho, the “Dennis model”, has been criticized as “too simplistic to be of use except under rather limited circumstances”.36
Given our prior experience with Judge Marsh, we didn’t think Idaho was likely to succeed by putting in affidavits of supposed experts who disagreed with NMFS. In PNGC v. Brown, we had put in expert affidavits taking the position that NMFS was wrong when it concluded that continuing to harvest endangered salmon would not jeopardize their continued existence. Citing a prior decision of the Ninth Circuit called Mt. Graham Red Squirrel, Judge Marsh had declared that because our experts and the government’s experts disagreed—indeed, had "sharply conflicting views"—"the agencies then have the discretion to rely upon whichever reasonable opinions they choose".37 Going further, Judge Marsh had stated: “I do not see how, even if they had standing under the ESA to challenge harvest activities, plaintiffs could succeed on such a ‘technical difference of opinion’ which was soundly rejected by the Ninth Circuit in Mt. Graham Red Squirrel.”38
The rule of the Mt. Graham Red Squirrel case means that even if citizens can somehow persuade federal courts to reach the merits of their claims, they will nearly always lose. As Ted Strong of the Columbia River Inter-Tribal Fish Commission has complained, this rule “allows the federal agencies to pick whatever science they like best, no matter how improbable and untested”.39 The whole idea that two experts can render contrary scientific opinions, that both are deemed “reasonable”, and that the courts should be unwilling to figure out which expert is is right is peculiar. Imagine the outcry that would arise if courts declared that in lawsuits between individuals and corporations where scientific questions are at issue, the corporations would always win.
Idaho’s lawsuit, which was essentially premised on dueling scientific testimony, should have failed under the rule of Mt. Graham Red Squirrel. Unfortunately, like many of the judge-made rules for review of government action, the rule is frequently honored in the breach.
Our first indication of how Judge Marsh would approach the scientific issues came in the oral argument of Idaho’s motion for summary judgment. Judge Marsh passed out a list of four questions, and, instead of taking scientific evidence from experts, decided to poll the attorneys of the parties on their views.
Three of the four questions amounted to overly simple statements of the fundamental scientific differences of opinion at issue in the case. Judge Marsh questioned the attorneys for each party as to their answer to the questions. The federal government quickly agreed with the representatives of the state and tribal fishery agencies on each question. The other industry intervenors and I disagreed.
After the skirmishing over salmon science, Judge Marsh asked the parties to address what was the critical issue in the case from our perspective: whether the National Marine Fisheries Service had correctly applied § 7 of the Endangered Species Act to dam operations.
There are federal regulations specifying how to apply § 7 of the Endangered Species Act in exhaustive detail: the agency is supposed to determine whether the proposed action “reduces appreciably both the survival and recovery of the listed species”.
In its biological opinion, NMFS had simply ignored the federal regulations, and adopted a two-step process: (1) comparing the effects of agency action to a “base period” from 1986 to 1990; and (2) assessing “combined effects” of the dam operations with a number of other actions. This standard was, in our view, carefully crafted to protect commercial harvest, because 1986 to 1990 were extraordinarily high harvest years, and because the “combined effects” analysis required dam operators to offset the effects of continued overfishing. Idaho's chief gripe was with the dates selected for the "base period".
As soon as I got my chance to address the question, the following exchange took place:
“Mr. Buchal: We disagree. We think that there are regulations here. We think that it’s remarkable that the agencies did not even purport to apply the regulations, and we think that this thing that they have invented, this base period analysis, combined effect analysis, is seriously flawed for a number of reasons. It’s inconsistent with the statutory purposes, and it was an agency rule [of] general application promulgated in violation of the Administrative Procedure Act.
“Mr. Disheroon [the Justice Department lawyer]: May I respond, Your Honor? These parties are here as intervenors with the understanding, at least to date, they are not supposed to raise new issues. . . . I know that they have filed a proposed counterclaim. Our time to respond has not yet run. We have standing issues and other things.
“Judge Marsh: I’m glad you raised that, because I’m not going to allow the counterclaim for the same reasons I didn’t [allow] the standing in the previous case [PNGC v. Brown]. You need not respond to it. You are in here as intervenors and on the issues that are here.
“Mr. Buchal: May I ask a question?
“Judge Marsh: Yes.
“Mr. Buchal: Is it an issue that is here whether or not the base period analysis and combined effect analysis can be applied consistent with law? Are we allowed to argue that here?
“Judge Marsh: Well, I think you just did. And I am going to consider that a little later, but I want to stay with this methodology [i.e., the base period and combined effects analysis] for a little while . . .”40
In substance, Judge Marsh had declared that as intervenors (who under federal law are generally entitled to all the rights of a party), we could make no claims of our own, even if neither the government nor the plaintiffs were focusing on the correct provisions of law. In particular, the National Marine Fisheries Service could concoct a special interpretation of the Endangered Species Act to blame dams, the plaintiffs could complain it didn't blame the dams enough, and we couldn't get NMFS to follow the rules it should have been following.
From our perspective, perhaps the most critical issue in the case concerned what “effects of the action” were supposed to be analyzed under § 7—a subject covered in the controlling federal regulations.41 Section 7 is supposed to keep federal agencies from exterminating endangered species based on discretionary decisions that they have yet to make. Decisions already made, like the decisions to build the dams decades ago, are not something that is supposed to be revisited in § 7 consultations because the dam operators don’t have the discretionary authority to remove the dams.
The biological opinion ostensibly addressed the effect of the 1993 plans for hydropower operations. But the National Marine Fisheries Service had never clearly specified the effect of operations. Instead, NMFS had simply pretended that each and every fish that died in the Columbia and Snake Rivers died because of the 1993 operational plans challenged in the lawsuit. This led to the following exchange with Judge Marsh:
“Judge Marsh: I realize you want to make that division between the construction—that which is sitting across the river and that [which] is how it operates. That distinction was not made by NMFS in its analysis under the biological opinion, was it?
“Mr. Buchal: They did not expressly use that term, but the whole analysis where you run the juvenile passage models and you change the flows and you see what happens, that is estimating the effect of the operational changes, that little piece of [mortality]. Then [there] is the big piece. The big piece is the 70-90 percent [mortality] that is existing and that is natural mortality. These things are in the record.
“Judge Marsh: Not your distinction.
“Mr. Buchal: Not with my distinction.
“Judge Marsh: Okay. Does the government think that is an accurate distinction to make between the fact, what I understand the DSI, PPC and PNGC to say to us is that the dams are irrelevant; the fact they are there is irrelevant? They are just as if we were looking at a bend in the river. That is their on[ly] relevance, and how we operate them is the sole purpose that we are examining.
“Mr. Disheroon: No, Your Honor, the government does not make that distinction. NMFS spelled out in their opinion they believe they need to look at all the mortality attributable to passing through the system. We have been in arguments about angels dancing on the head of a pin. . .”42
In my view, the government threw the case with this and other statements at oral argument. We pointed out that the government had made this very distinction in the briefs they filed,43 but to no avail. Once you pretended that the effect of the discretionary 1993 operational plans was to kill 70-90 percent of the fish in the river, there was no way that the government was going to win.
On March 28, 1994, almost exactly a year after the PNGC v. Brown decision, Judge Marsh issued his opinion in the Idaho Fish and Game case. Judge Marsh decided that the questions involving the “extinction vortex” were a “mixed question of policy, law and science and, therefore, must be distinguished from the more typical scientific differences of opinion discussed in Mt. Graham Red Squirrel”.44 Judge Marsh then proceeded to hold that NMFS “arbitrarily and capriciously discounted low range assumptions without well-reasoned analysis and without considering the full range of risk assumptions.”45 NMFS would have to “consider and address” state and tribal computer modeling, hardwired to produce lower survivals and underestimate the benefits of transportation and overestimate the importance of flow.
But Judge Marsh went further than merely identifying matters that NMFS should have considered. Apparently assuming that NMFS was flat out wrong when it concluded that hydropower operations (as modified pursuant to NMFS demands during the consultation process) would not jeopardize the continued existence of the salmon, Judge Marsh explained that once “jeopardy” was found, NMFS had a duty to consider “reasonable and prudent alternatives” to dam operations.
The worst aspect of Judge Marsh’s opinion, from our perspective, was the fact that he had swallowed the Great Salmon Hoax whole and rebroadcast it in a series of sound bites that swept through the media in an anti-dam tidal wave. According to Judge Marsh, “[i]nstead of looking for what can be done to protect the species in jeopardy, NMFS and the action agencies have narrowly focused their attention on what the establishment is capable of handling with minimal disruption.” This was not a finding based on evidence, for there had been no such evidence in the case.
The Justice Department refused to appeal Judge Marsh’s ruling. With the White House driving the decisions, the Justice Department lawyers told the Judge that the government would not appeal, and would help the plaintiffs avoid mootness problems by putting aside the 1993 Biological Opinion, and meeting with the plaintiffs and other sovereign parties to the lawsuit to renegotiate the current 1994-98 Biological Opinion.
One recurring error of government officials is their foolish attempt to strike bargains with conservation biologists. They don’t understand that the conservation biologists reject the very concept of a compromise as illegitimate, and that all bargains are merely a device to extract concessions while continuing to agitate for more.46 As Michele DeHart of the Fish Passage Center says, “it’s true what they say, we always want more”.47
The federal officials went off to a fancy resort on Mt. Hood with the state and tribal officials to try and hammer out some sort of deal. We were, of course, not invited. To encourage the federal defendants in their negotiations with the state agencies and tribes, Judge Marsh sent a postcard with a picture of a steam engine on it to the resort, writing: "To the parties: One Person's train wreck is another person's Little Engine that Could. Best Wishes, Malcolm Marsh". The federal attorneys expressed some surprise that Judge Marsh would sent out such a communication to some, but not all, the parties in a lawsuit, and showed me the postcard; I grabbed it and ran to a photocopier. Here it is:
Figure 24: Judge Marsh's Postcard
I could not help but see the postcard as further evidence that Judge Marsh’s primary goal was to facilitate a settlement that he thought would protect fish, rather than decide a case based on evidence.
We did appeal the case, prompting the government to argue that the case could not be appealed without its consent. During the oral argument of the appeal, Ninth Circuit Judge Pamela Rhymer questioned how Judge Marsh could have found that NMFS should have considered alternatives to the operational plans. After all, "alternatives" must only be examined after a determination that the plan would jeopardize the continued existence of an endangered species. According to Judge Marsh, NMFS had to correct its analysis to determine or not the original plans jeopardized the salmon.
Unfortunately, the Ninth Circuit panel decided to dismiss the case on mootness grounds and did not discuss Judge Marsh's rulings, other than to direct that the judgment be "vacated". Under the rules for citation of judicial opinions, vacated decisions are void and entitled to no precedential value whatsoever. But those rules don’t apply to the media. Quotes from Judge Marsh’s decision continue to appear in popular accounts of salmon recovery.48
36 J. Emlen, “Population Viability of the Snake River Chinook Salmon (Onchorynchus tshawytscha), at 5.
37 PNGC v. Brown, 822 F. Supp. at 1505.
39 T. Strong, “Endangered Species Act won’t save these salmon”, Seattle Post-Intelligencer, May 23, 1997 (Mr. Strong’s complaints are ironic since the “improbable and untested” “science” employed to date by the federal government—such as anti-transporrtation dogma—has been employed at the behest of the tribes).
40 IDFG v. NMFS, No. 92-1603-MA, Hrng. Tr. 29-31 (Mar. 18, 1994) (emphasis added).
41 See 50 C.F.R. Part 402.02 et seq.
42 IDFG v. NMFS, 3/18/94 Tr. at 44-45.
44 IDFG v. NMFS, 850 F. Supp. at 898.
46 As one writer explained, environmentalists object to finding “balance” in negotiations over salmon because “that seemed always to mean that the balancing began right now, with the chips everyone had then. But the fish advocates saw the time frame differently.” J. Cone, A Common Fate 90-91.
47 Quoted in B. Harden, A River Lost 215.
48 See, e.g., J. Cone, A Common Fate 299;
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