Many people are under the impression that the federal courts have examined efforts to protect endangered salmon protection by the agencies that operate dams on the Columbia and Snake River and found them wanting. Although many cases have been filed seeking such holdings, only two cases (so far) have reached this result.

In both cases, the courts did not hear a single witness, and reached their conclusions because they relied on the unsupported and erroneous assertions by lawyers, not witnesses. One decision, by United States District Judge Malcolm Marsh, was later vacated. The second opinion, which relied, in part, upon Judge Marsh’s subsequently-vacated "findings", is best understood as abuse of the federal judicial power by the United States Court of Appeals for the Ninth Circuit.

The First Shot from the Environmentalists and their Backers: the Commercial Salmon Harvesters

In 1992, the Sierra Club Legal Defense Fund, representing a group of commercial fishermen and environmentalists, filed suit in the United States District Court for the Western District of Washington. The group sought, among other things, a declaration that operation of the dams and reservoirs comprising the Federal Columbia River Power System were jeopardizing the continued existence of endangered Snake River salmon.

At that time, I had just moved to Oregon from New York City. I knew almost nothing about salmon. All I knew was that the law firm for which I worked represented a group of companies that purchased enormous quantities of electricity from the Bonneville Power Administration (BPA). These companies, called the Direct Service Industries or DSIs, made aluminum and other products in electro-chemical processes highly dependent upon electricity. The Sierra Club plaintiffs sought to get an injunction banning BPA from entering into any new power sales contracts. At the time, the DSIs were beginning to think about new contracts with BPA, so they were concerned about the suit.

Two years before I had arrived in Oregon, Jeff Ring, the senior lawyer for the DSIs responsible for environmental issues, had pushed the DSIs to get involved in decisions concerning salmon recovery. Mr. Ring believed that the anti-dam plans pushed by self-styled salmon advocates could not withstand scientific scrutiny, and that salmon populations in the Columbia River Basin would never recover so long as the primary focus of salmon recovery efforts was the dams. He thought that the interests of the salmon could be consistent with those of the DSIs. Among other things, the DSIs used electric power in a manner that caused smooth releases of water from the dams, rather than large day and night shifts. The DSIs had considerable incentive to make sure that the dams did not end up as scapegoats for salmon decline while other problems faded from public attention.

Jeff was ably assisted by Gary Firestone, a former Oregon Supreme Court clerk who was keenly aware of the failures of salmon management, and the salmon agencies’ misinterpretations of the environmental laws. At the DSI office, Nanci Tester, a former Bonneville Power Administration employee with a degree in biology, supervised our efforts.

The environmentalists sued under  7 of the Endangered Species Act, a provision that declares that every federal agency must avoid taking action that would "jeopardize the continued existence of" a listed species. Section 7 tells every federal agency taking action that may affect endangered species to consult with the federal fish and wildlife agency responsible for those species.

In the case of endangered salmon, the responsible agency is the National Marine Fisheries Service (NMFS). Under  7, NMFS is to render a "biological opinion" as to whether the proposed action would be likely to “jeopardize the continued existence of the species”. In 1992, the very first year after the salmon were listed, BPA, the Corps and the Bureau had prepared an enormous "biological assessment" showing the effect of their planned operations on salmon. NMFS reviewed the document, conducted additional analyses, and concluded that the operations planned in 1992 were not likely to jeopardize the continued existence of Snake River salmon.

The fishermen and environmentalists disagreed. In their view, the dams stood as the sole obstacle to healthy salmon runs, and they sought a court decision to invalidate NMFS' biological opinions and the resulting BPA, Corps and Bureau decision to go ahead with their operational plans. At the outset, their lawsuit ran into a procedural problem, for they had sued BPA together with NMFS, the Corps and the Bureau, and BPA cannot be sued in district court. BPA can (with very limited exceptions) only be sued in the United States Court of Appeals for the Ninth Circuit.

Throughout the fall of 1992, the lawsuit was mired in procedural wrangling. Paul Murphy, the senior partner representing the DSIs, had been litigating against BPA for almost a decade. He knew the laws governing BPA inside and out. He convinced Jeff and me that there was no way that a suit against BPA could go forward in District Court, and we waited and watched. The District Court dismissed the suit. The environmentalists and fishermen appealed. They lost. As expected, the Ninth Circuit followed several of its prior decisions and concluded that the case should be dismissed.

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