One of the reasons the environmentalists and salmon harvesters have made so much bad law is that they never give up. They bring the same lawsuits over and over again. On March 14, 1996, they filed a suit against the 1995 biological opinion on Federal Columbia River Power System operations. Like all the other salmon cases, it was reassigned away from the judge randomly picked to hear it, and assigned to Judge Marsh.
After an abortive run at obtaining a preliminary injunction in the summer of 1996, the plaintiffs filed a motion seeking to have Judge Marsh set aside the new biological opinion as arbitrary and capricious. The plaintiffs' complaint was, in substance, that the National Marine Fisheries Service issued a “no-jeopardy” opinion (after requiring significant changes in dam operations) even though some computer modeling showed that salmon stocks were unlikely to reach recovery targets.
Representing the Columbia River Alliance, I told the Court that there were a lot of reasons computer modeling showed that the salmon would not recover. First, because dams were not the major problem, fixing dams wasn’t going to fix the problems with salmon. Second, the computer models cited by the environmentalists were hard-wired to downplay the benefits of operational improvements at the dams, and assumed continued heavy harvest of endangered salmon.
The environmentalists also had some new arguments, focusing on the failure to meet the flow targets set forth in the biological opinion. Whether the targets had been met depended on whether they were to be interpreted as seasonal averages or daily constraints. Notwithstanding plain language in the biological opinion to the contrary, the environmentalists insisted that the targets had to be met every day.
I pointed out that the summer targets (the focus of the environmentalists’ claims) were higher than river flows before any dams were built, and could never be achieved. Flow targets have become a critical part of the Great Salmon Hoax, because newspapers repeatedly report that the targets are "missed", never mentioning that they cannot physically be achieved.73
Repeating its performance in the Idaho Fish and Game case, the State of Oregon joined the environmentalists as a plaintiff, and filed its own motion for summary judgment echoing the complaints of the environmentalists. Other states and tribes intervened as well.
In March, the Regional Director of the National Marine Fisheries Service, Will Stelle, Jr., paid a visit to the Governor of Oregon. The Service was threatening to list Oregon coastal coho as endangered, which Governor Kitzhaber did not want. No one reported on what happened in that meeting, but shortly afterwards, the State of Oregon commenced secret settlement negotiations with the federal defendants in the case. When the environmentalists found out about them, they wrote letters to the Justice Department protesting their exclusion from the talks. One of the Justice Department lawyers sent me a copy of the letter and said, “well, at least you can be happy that you’re all getting the same treatment”. Less than a week later, the federal government began secret settlement negotiations with the environmentalists and fishermen (but not my clients).
On March 31, 1997, the parties gathered before Judge Marsh for oral argument of the motions for summary judgment filed by the environmentalist/harvester alliance and the State of Oregon. The State of Oregon tried to persuade Judge Marsh to defer a ruling, because of supposed progress toward settlement, but the Judge refused.
On April 3, 1997, the Judge issued his opinion, which, to our relief, denied the plaintiffs' motions. He specifically affirmed the authority of the National Marine Fisheries Service and other federal agencies to adopt a “flexible” approach to meeting flow targets,74 and to make their own judgments as to what constituted “jeopardizing the continued existence” of endangered salmon.75
While denying the motions was the right result, Judge Marsh continued to reiterate the same elements of the Great Salmon Hoax we had fought about for years. Judge Marsh again reported that “80% of historical salmon losses are attributable to hydropower development and operation”.76 He declared that “[a]nticipated impacts of proposed [Federal Columbia River Power System] operations on the listed species” would be, among other things, “62-99% for juvenile fall chinook”.77 By now, I thought to myself, he should have known that these things were not true.
Judge Marsh noted with approval that the National Marine Fisheries Service had “incorporate[d] nearly all of the . . . recommendations” of the state and tribal “Biological Requirements Work Group”, including (“most critical” to Judge Marsh) the decision to extend Endangered Species Act protection to 39 subunits of the “distinct population unit”, and adoption of the Group’s “recommended threshold survival levels”.78
Those of us who knew what the Group had actually done knew that the Group’s approach was both misleading and arbitrary. Among other things, the Group had presented data for only six of the 39 stocks, and then discarded the one stock that consistently exceeded the thresholds as unrepresentative. As explained in Chapter 13, the Group operated in violation of a federal law designed to prevent biased and secret recommendations to federal agencies.
Finally, Judge Marsh declared that “[a]s a long-time observer and examiner of this process, I cannot help but question the soundness of the selected level of risk acceptance . . .”79 What this “sound-bite” seemed to mean was that it was not enough for Judge Marsh that the National Marine Fisheries Service had tried to assure a 70% chance that endangered salmon would fully recover through the device of dictating changes in dam operations.
One might quarrel with the 70% chance if the lawsuit addressed a recovery plan under § 4 of the Endangered Species Act. But NMFS had issued a biological opinion under § 7 as to whether the dam operators had avoided jeopardizing the continued existence of the salmon by their proposed action. Congress never authorized NMFS to declare that a federal agency action must be halted or modified because that single agency action does not assure recovery of endangered species. However, NMFS, backed by the White House, asserts and exercises the power to do so.
73 See, e.g., J. Brinckman, "$3 billion later, Columbia Basin salmon dwindle", July 27, 1997.
74 American Rivers v. NMFS, No. 96-384-MA, slip op. at 26-30 (D. Or. April 3, 1997)
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