422 F.3d 782 (9th Cir. 2005), 05-35569, National Wildlife Federation v. National Marine Fisheries Service

Docket Nº:05-35569, 05-35646 and 05-35570.
Citation:422 F.3d 782
Party Name:NATIONAL WILDLIFE FEDERATION; Idaho Wildlife Federation; Washington Wildlife Federation; Sierra Club; Trout Unlimited; Pacific Coast Federation of Fishermen's Associations; Institute for Fisheries Resources; Idaho Rivers United; Idaho Steelhead and Salmon United; Northwest Sport Fishing Industry Association, Salmon for All; Columbia Riverkeeper; NW
Case Date:July 26, 2005
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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422 F.3d 782 (9th Cir. 2005)

NATIONAL WILDLIFE FEDERATION; Idaho Wildlife Federation; Washington Wildlife Federation; Sierra Club; Trout Unlimited; Pacific Coast Federation of Fishermen's Associations; Institute for Fisheries Resources; Idaho Rivers United; Idaho Steelhead and Salmon United; Northwest Sport Fishing Industry Association, Salmon for All; Columbia Riverkeeper; NW Energy Coalition; Federation of Fly Fishers; American Rivers, Inc., Plaintiffs-Appellees,

v.

NATIONAL MARINE FISHERIES SERVICE; United States Army Corps of Engineers; U.S. Bureau of Reclamation, Defendants,

Franklin County Farm Bureau Federation; Grant County Farm Board Federation; Washington Farm Bureau Federation; State of Idaho; Clarkson Golf & Country Club, Defendants-Intervenors,

and

Northwest Irrigation Utilities; Public Power Council; Pacific Northwest Generating Cooperative; BPA Customer Group, Defendants-Intervenors-Appellants,

v.

State of Oregon, Plaintiff-Intervenor-Appellee.

National Wildlife Federation; Idaho Wildlife Federation; Washington Wildlife Federation; Sierra Club; Trout Unlimited; Pacific Coast Federation of Fishermen's Associations; Institute for Fisheries Resources; Idaho Rivers United; Idaho Steelhead and Salmon United; Northwest Sport Fishing Industry Association, Salmon for All; Columbia Riverkeeper; NW Energy Coalition; Federation of Fly Fishers; American Rivers, Inc., Plaintiffs-Appellees,

v.

National Marine Fisheries Service; United States Army Corps of Engineers; U.S. Bureau of Reclamation, Defendants,

Northwest Irrigation Utilities; Public Power Council; Pacific Northwest Generating Cooperative; BPA Customer Group; Franklin County Farm Bureau Federation; Grant County Farm Board Federation; Washington Farm Bureau Federation; Clarkson Golf & Country Club, Defendants-Intervenors,

and

State of Idaho, Defendant-Intervenor-Appellant,

v.

State of Oregon, Plaintiff-Intervenor-Appellee.

National Wildlife Federation; Idaho Wildlife Federation; Washington Wildlife Federation; Sierra Club; Trout Unlimited; Pacific Coast Federation of Fishermen's Associations; Institute for Fisheries Resources; Idaho Rivers United; Idaho Steelhead and Salmon United; Northwest Sport Fishing Industry Association, Salmon for All; Columbia Riverkeeper; NW Energy Coalition; Federation of Fly Fishers; American Rivers, Inc., Plaintiffs-Appellees,

v.

National Marine Fisheries Service; United States Army Corps of Engineers; U.S. Bureau of Reclamation, Defendants-Appellants,

and

Northwest Irrigation Utilities; Public Power Council; Pacific Northwest Generating Cooperative; BPA Customer Group; Franklin County Farm Bureau Federation; Grant County Farm Board Federation; Washington Farm Bureau Federation; State of Idaho; Clarkson Golf & Country Club, Defendants-Intervenors,

v.

State of Oregon, Plaintiff-Intervenor-Appellee.

Nos. 05-35569, 05-35646 and 05-35570.

United States Court of Appeals, Ninth Circuit.

July 26, 2005.

Argued and Submitted July 13, 2005 Seattle, Washington.

Amended Sept. 1, 2005.

Appeal from the United States District Court for the District of Oregon James A. Redden, District Judge, Presiding.

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COUNSEL

Mark Eames, NOAA Office of General Counsel, Seattle, Washington; Gayle Lear, Assistant Division Counsel, Northwestern Division, U.S. Army Corps of Engineers, Portland, Oregon; Kelly A. Johnson, Acting Assistant Attorney General, Fred Disheroon, Ruth Ann Lowery, Ellen J. Durkee, and Jennifer L. Scheller, Attorneys, Environment & Natural Resources Division, U.S. Department of Justice, Washington D.C., for federal defendants-appellants.

Matthew A. Love and Sam Kalen, Van Ness Feldman, P.C., Seattle, Washington, for defendants-appellants BPA Customer Group.

Lawrence G. Wasden, Attorney General, Clive J. Strong, Deputy Attorney General, and Clay R. Smith, Deputy Attorney General, State of Idaho, Boise, Idaho, for defendant-intervenor-appellant State of Idaho.

Todd D. True and Stephen D. Mashuda, Earthjustice, Seattle, Washington; Daniel J. Rohlf, Pacific Environmental Advocacy Center, Portland, Oregon, for plaintiffs-appellees National Wildlife Federation.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, David E. Leith, Assistant Attorney General, and Stephen K. Bushong, State of Oregon, Salem, Oregon, for plaintiff-intervenor-appellee State of Oregon.

Koward G. Arnett, Karnopp Petersen, LLP, Bend, Oregon; David J. Cummings, Nez Perce Tribe, Lapwai, Idaho; Christopher B. Leahy, Fredericks, Pelcyger & Hester, LLC, Louisville, Colorado; Tim Weaver, Law Offices of Tim Weaver, Yakima, Washington, for amici curiae Treaty Tribes.

Robert D. Thornton and Paul S. Weiland, Nossaman, Guthner, Knox & Elliott, LLP, Irvine, California, for amicus curiae National Association of Homebuilders.

Rob McKenna, Attorney General, and Michael S. Grossman, Assistant Attorney General, State of Washington, Olympia, Washington, for amicus curiae State of Washington.

John C. Bruning, Attorney General, David D. Cookson, Assistant Attorney General, State of Nebraska, Lincoln, Nebraska; Thomas R. Wilmoth, Special Assistant Attorney General, Fennemore Craig, P.C., Lincoln, Nebraska, for amicus curiae State of Nebraska.

Before: TASHIMA, THOMAS, and PAEZ, Circuit Judges.

AMENDED OPINION

PER CURIAM:

The defendants appeal the district court's grant of a preliminary injunction, based on a violation of the Endangered Species Act (or "ESA"), 16 U.S.C.§§1531-1544,

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requiring the United States to pass a specified amount of water through the spillgates of four dams on the Snake River, and one dam on the Columbia River during the summer months of 2005, rather than passing the water through turbines for power generation. We affirm in part and remand in part.

I

The Columbia River is the fourth largest river on the North American continent. It drains approximately 259,000 square miles, including territory in seven states and one Canadian province. It flows for more than 1,200 miles from the base of the Canadian Rockies to the Pacific Ocean. As part of the cycle of life in the Columbia River system, every year hundreds of thousands of salmon and steelhead travel up and down the river and its tributaries, hatching in fresh water, migrating downstream to the sea to achieve adulthood, and then returning upstream to spawn. The Snake River is the Columbia River's main tributary.

As part of the modern cycle of life in the Columbia River System, each year brings litigation to the federal courts of the Northwest over the operation of the Federal Columbia River Power System ("FCRPS" or "Columbia River System")1 and, in particular, the effects of system operation on the anadromous salmon and steelhead protected by the Endangered Species Act.

No one disputes that the wild Pacific salmon population has significantly decreased; indeed, in recent years, salmon runs have declined to a small percentage of their historic abundance. There are now thirteen species of Columbia, Snake, and Willamette River salmon and steelhead that are protected by the Endangered Species Act.2 The district court found in this case that "the listed species are in serious decline and not evidencing signs of recovery." Each of the thirteen affected stocks migrate at different times of the year to different parts of the Columbia Basin. For example, Upper Columbia spring Chinook adults return to their spawning grounds in the spring of each year; Snake River fall Chinook adults return to the Snake River Basin in the fall. Juveniles of these stocks generally migrate seaward between mid-April and early September. The spring and summer Chinook, steelhead, and sockeye salmon migrate as yearling juveniles in the spring. Subyearling fall Chinook migrate down the river during the mid-to-late summer. Some salmon migrate downstream after spending a year in fresh water; others migrate the same year.

The primary focus of the present lawsuit is the survival of the fall juvenile Chinook salmon and steelhead migrating downstream to the Pacific Ocean. These fish

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must pass a number of FCRPS dams on their journey to the sea and suffer a very high mortality rate in doing so, sometimes as high as 92%. As the fish migrate downstream, they first encounter reservoirs behind the dams, which slows their progress and exposes them to predatory fish, such as the northern pikeminnow. After passage through each dam's reservoir, the juvenile salmon and steelhead must pass each dam. There are four main methods by which salmon may navigate the Columbia and Snake River hydroelectric projects while migrating from upriver areas to the ocean: (1) spill over the dams; (2) passage through turbines; (3) in-river bypass systems; and (4) transportation bypass systems. Of these options, passage through turbines unquestionably causes the highest mortality rate. Historically, spill has been considered to cause the lowest mortality. However, spill must be carefully managed to avoid gas supersaturation, which is harmful to the fish.3

Each dam has a bypass system. At some dams, the bypass consists of screens in front of the turbine intakes that divert the salmon and steelhead into a passageway through the dam and downstream. At others, the bypass system diverts the fish into barges for transportation around the dam.

The operation of the Columbia River System is complex. The Army Corps of Engineers and the Bureau of Reclamation manage the dams for multi-purpose...

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