American Rivers v. National Marine Fisheries Service, 95-35462
| Decision Date | 16 September 1997 |
| Docket Number | No. 95-35462,95-35462 |
| Citation | 126 F.3d 1118 |
| Parties | 97 Cal. Daily Op. Serv. 7390, 97 Daily Journal D.A.R. 11,916 AMERICAN RIVERS; Idaho Rivers United, Inc.; Pacific Coast Federation of Fishermen's Associations, Inc.; Institute for Fisheries Resources; Natural Resources Council of Oregon; Sierra Club; Federation of Fly Fishers; Trout Unlimited, Plaintiffs-Appellants, v. NATIONAL MARINE FISHERIES SERVICE; United States Army Corps of Engineers; Bureau of Reclamation, Defendants-Appellees, and Aluminum Company of America; ELF Autochem North America, Inc.; Columbia Falls Aluminum Company; Kaiser Aluminum & Chemical Corporation; Intalco Aluminum Corporation; Northwest Aluminum Company; Oregon Metallurgical Corporation; Reynolds Metals Company; Vanalco Inc.; Public Power Council, Defendants-Intervenors-Appellees, and Pacific Northwest Generating Cooperative, Intervenor-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Adam J. Berger, Sierra Club Legal Defense Fund, Seattle, Washington, for the plaintiffs-appellants.
Peter A. Appell, United States Department of Justice, Washington, D.C., for the federal defendants-appellees.
James L. Buchal, Ball, Janik & Novack, Portland, Oregon, for the intervenors-appellees.
Appeal from the United States District Court for the District of Oregon, Malcolm F. Marsh, District Judge, Presiding. D.C. No. CV-94-00940-MFM.
Before: FERGUSON and BRUNETTI, Circuit Judges, and SAMUEL P. KING, * District Judge.
Environmental and commercial fishing organizations 1 (collectively "American Rivers"), appeal the district court's denial of their motion for summary judgment and its grant of defendants' cross-motion for summary judgment. The defendants are the National Marine Fisheries Service ("NMFS") and the federal agencies 2 that operate the Federal Columbia River Power System ("River Power System"). American Rivers contends that the federal agencies violated § 7(a)(2) of the Endangered Species Act, 16 U.S.C. § 1536(a)(2), because the operation of the River Power System jeopardizes the existence of the Snake River salmon and adversely modifies the salmon's critical habitat. Specifically, American Rivers challenges the federal agencies' decision to use transportation measures-moving juvenile salmon downstream in trucks and barges-to avoid a determination that the operation of the River Power System jeopardizes the existence of the salmon.
"Salmon and hydropower are the two great natural resources of the Columbia River Basin." Northwest Resource Info. Ctr., Inc. v. Northwest Power Planning Council, 35 F.3d 1371, 1375 (9th Cir.1994), cert. denied, --- U.S. ----, 116 S.Ct. 50, 133 L.Ed.2d 15 (1995) (hereinafter Northwest Power ). The present case involves the continuing conflict between these two important resources.
Snake River sockeye and chinook salmon are anadromous fish--they hatch and spend their first years in fresh water, reach mature size while rearing in the Pacific Ocean, and return to their natal streams and lakes to spawn and die. Anadromous fish runs in the Columbia River Basin have dwindled as a result of human activities since the European settlement of the Northwest. Northwest Power, 35 F.3d at 1376. The decline of these stocks of salmon has been caused by over-harvest, habitat degradation, predation, poor ocean rearing conditions, and the construction and operation of over 200 dams in the Columbia River Basin. 57 Fed.Reg. 14,654, 14,660, 14,661.
In 1991, National Marine Fisheries Service listed the Snake River sockeye salmon as an endangered species. 56 Fed.Reg. 58,619. The following year, NMFS listed the Snake River spring/summer and fall chinook 3 as threatened species. 57 Fed.Reg. 14,653-54. On December 28, 1993, NMFS designated the critical habitat 4 for these three species, which encompasses the Snake River and Columbia River migratory corridor. 58 Fed.Reg. 68,544. Despite the salmon's listed 5 status, only one Snake River sockeye returned to spawn in the Snake River in 1994. In 1995, only 1,800 Snake River spring/summer chinook and 350 Snake River fall chinook returned to the river to spawn. These numbers demonstrate that the listed salmon continue their march toward extinction.
The present controversy between salmon and hydropower concerns the downstream migration of juvenile salmon or "smolts" in the Columbia River Basin. Once the salmon hatch in the upstream areas of the Columbia River Basin, the smolts travel downstream to the Pacific Ocean. During this downstream migration the smolts pass eight of the dams and reservoirs that are part of the River Power System. The Bureau of Reclamation and the Corps of Engineers operate these hydroelectric, flood control, and water storage projects. The importance and magnitude of the River Power System is demonstrated by the fact that it generates approximately half of the electricity used in the Pacific Northwest.
All parties agree that the existence of the River Power System impedes the migration of salmon. At present, there are four ways in which the salmon migrating downstream may pass the eight mainstream Columbia and Snake River hydroelectric projects. The salmon may: (1) spill over the dams; (2) pass through the power turbines; (3) bypass to transportation facilities, including barges or trucks; or (4) bypass back into the river. Idaho Dep't of Fish & Game v. National Marine Fisheries Serv., 850 F.Supp. 886, 889 n. 5 (D.Or.1994), vacated as moot, 56 F.3d 1071 (9th Cir.1995). Each of these methods is subject to scientific debate as to its effectiveness and benefit to the listed salmon. See Northwest Resource Information Center, Inc. v. National Marine Fisheries Serv. (hereinafter National Marine ), 56 F.3d 1060, 1063-64 (9th Cir.1995) ().
Regardless of how the smolts pass the dams, the operation of the River Power System causes mortality to the smolts during their downstream migrations. The dams reduce water flow through reservoirs which slows the salmon's passage and contributes to salmon mortality. The salmon's slow passage through these reservoirs increases the exposure time of the juvenile salmon to: (1) predation; (2) higher water temperatures which make the salmon more susceptible to disease; and (3) water quality problems including dissolved gas supersaturation which causes gas bubble disease in juvenile and adult salmon. Moreover, during downstream migration some of the smolts pass through the hydroelectric turbines and emerge injured or disoriented, rendering them easy prey for squawfish. Furthermore, smolts that are diverted through the bypass systems at the dams may suffer descaling, disorientation, and stress.
The gravity of the salmon mortality problem is illustrated by NMFS's own estimate of cumulative passage mortality, which was as high as ninety-one percent for spring/summer chinook passing the mainstream hydroelectric projects. Salmon passage mortality through the River Power System can conceptually be divided into: (1) natural mortality; (2) additional mortality due to the existence of the River Power System; (3) additional mortality that varies with the operation of the River Power System; and (4) additional mortality from other human activities. However, the extent of the smolt mortality that is a direct result of the operation of the River Power System is unknown.
In 1968, NMFS first experimented with transportation as a means of facilitating the smolts downstream migration. Snake River smolts have been transported from Lower Granite, Little Goose, and McNary Dams since the 1970s and from Lower Monumental Dam since 1993. Today the smolt transportation program entails removing the migrating juvenile salmon from the river, transporting them around the dams, and then releasing them back into the Columbia River below Bonneville Dam to continue their journey to the Pacific Ocean.
The Corps of Engineers operates the transportation program during the juvenile migration season. 6 All four dams involved in the transportation program have mechanical bypass systems that divert a portion of the juvenile salmon away from the power house turbines and into vertical gatewells. From the gatewells, the salmon pass through small orifices into bypass channels which run the length of the power house. The salmon then enter a primary dewatering facility, and then a high velocity pipe or flume that carries them to the transportation facility where they are separated, sorted, marked, and examined. The salmon then are held in raceways and from these raceways they are loaded into tanker trucks or barges. The transportation barges are specially equipped to circulate river water into the holding tank. It takes approximately forty hours for a barge to travel to the release site below the Bonneville Dam. Once the salmon are released, they continue their migration for another 140 miles to the Pacific Ocean.
As with the other methods of passage around the dams, transportation also causes mortality. American Rivers contends that transportation results in the following negative impacts on the juvenile salmon: (1) stress and physical injury which accompanies bypass and handling; (2) predation and disease transmission during holding and transport; (3) predation at the point of release; and (4) homing impairment of returning adults. At this point in time, scientific research is inconclusive regarding the ability of the transportation program to improve the survival of the salmon. Although the efficacy of the transportation program has been questioned, scientific evidence suggests that it is more probable than not that transportation improves the relative survival of juvenile salmon under certain hydroelectric operational scenarios and flow regimes.
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