Northwest Resource Information Center, Inc. v. National Marine Fisheries Service

• Decision Date: 03 June 1994
• Docket Number: No. 1,93-35573,Nos. 93-35488,1,s. 93-35488
• Citation: 25 F.3d 872
• Parties: , 24 Envtl. L. Rep. 21,117 NORTHWEST RESOURCE INFORMATION CENTER, INC., et al., Plaintiffs-Appellants, v. NATIONAL MARINE FISHERIES SERVICE, et al., Defendants, and Bonneville Power Administration, Defendant-Appellee. NORTHWEST RESOURCE INFORMATION CENTER, INC.; Trout Unlimited; Oregon Natural Resources Council, Inc.; Idaho Steelhead and Salmon Unlimited; Sierra Club, Plaintiffs, v. NATIONAL MARINE FISHERIES SERVICE; U.S. Army Corps of Engineers, Defendants, Bonneville Power Administration, Defendant-Appellee, v. PUBLIC UTILITY DISTRICT NO. 2 OF GRANT COUNTY, WASHINGTON, a municipal corporation; Public Utility District of Douglas County, Washington, a municipal corporation; Public Utility Districtof Chelan County, Washington, a municipal corporation, et al., Defendants-Intervenors, Cross-Claimants, and Public Power Council, Defendant-Intervenor, Cross-Claimant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 872

25 F.3d 872

39 ERC 1613, 24 Envtl. L. Rep. 21,117

NORTHWEST RESOURCE INFORMATION CENTER, INC., et al., Plaintiffs-Appellants, v. NATIONAL MARINE FISHERIES SERVICE, et al., Defendants, and Bonneville Power Administration, Defendant-Appellee.

NORTHWEST RESOURCE INFORMATION CENTER, INC.; Trout

Unlimited; Oregon Natural Resources Council,

Inc.; Idaho Steelhead and Salmon

Unlimited; Sierra Club, Plaintiffs, v. NATIONAL MARINE FISHERIES SERVICE; U.S. Army Corps of

Engineers, Defendants, Bonneville Power Administration, Defendant-Appellee, v. PUBLIC UTILITY DISTRICT NO. 2 OF GRANT COUNTY, WASHINGTON, a

municipal corporation; Public Utility District of Douglas

County, Washington, a municipal corporation; Public Utility

District No. 1 of Chelan County, Washington, a municipal

corporation, et al., Defendants-Intervenors, Cross-Claimants,

and

Public Power Council, Defendant-Intervenor, Cross-Claimant-Appellant.

Nos. 93-35488, 93-35573.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 7, 1994.

Decided June 3, 1994.

Victor M. Sher, Sierra Club Legal Defense Fund, Seattle, WA, for appellants NRIC.

Gregory Miner, Bogle & Gates, Portland, OR, for appellant Public Power Council.

Harvard Spigal, Bonneville Power Administration, Portland, OR, for appellee Bonneville Power Admin.

Appeal from the United States District Court for the Western District of Washington.

Before: BROWNING, KOZINSKI, and NOONAN, Circuit Judges.

Opinion by Judge NOONAN.

NOONAN, Circuit Judge:

Northwest Resources Information Center, et al. brought suit against the Bonneville Power Administration, the Army Corps of Engineers, the Bureau of Reclamation, and the National Marine Fisheries Service, claiming violation of the Endangered Species Act (16 U.S.C. Sec. 1531 et seq.) and its implementing regulations (50 C.F.R. Part 402), and the Administrative Procedure Act (5 U.S.C. Sec. 551 et seq.). The district court dismissed the case against the Bonneville Power Administration for lack of jurisdiction. 818 F.Supp. 1399 (W.D.Washington 1993). The plaintiffs and an intervenor-defendant appeal. We affirm the district court.

BACKGROUND

As of November 20, 1991 the National Marine Fisheries Service identified the Snake River sockeye as an endangered species. 56 Fed.Reg. 58,619. As of May 22, 1992 it similarly listed the Snake River spring/summer and fall chinook as threatened species under the Endangered Species Act. 57 Fed.Reg. 14,661. That law treats as a species any "distinct population segment of any species of vertebrate ... which interbreeds when mature." 16 U.S.C. Sec. 1532(16). Under an "interim policy" adopted in 1991 by the National Marine Fisheries Service, a salmon population is treated as a "distinct population segment" when it satisfies two criteria, viz. (1) that it is "reproductively isolated" from "other conspecific population units" and (2) it represents "an important component in the evolutionary legacy of the biological species." Meeting these criteria, a salmon stock is stamped as an "evolutionarily significant unit." If it is "in danger of extinction throughout all or a significant portion of its range," it will be classified as an "endangered species." If it is "likely to become an endangered species throughout all or a significant portion of its range," it will be classified as a "threatened species." 56 Fed.Reg. 29,548-49.

The Bonneville Power Administration, an entity of the Department of Energy, markets the hydroelectric power produced at the Columbia river and its tributaries, including the Snake river, by dams and a power generation and transmission system built and administered by the Bureau of Reclamation and the Army Corps of Engineers. It coordinates the operation of the relevant federal agencies under the terms of the Pacific Northwest Electric Power Planning and Conservation Act, 16 U.S.C. Sec. 839, with the obligations imposed by the Act "to assure the Pacific Northwest of an adequate, efficient, economical power supply ... [and] to protect, mitigate and enhance the fish and wildlife ... particularly anadromous fish." 16 U.S.C. Sec. 839(2), (6). The Act further provides for the Northwest Electric Power and Conservation Planning Council whose duties include provision of a program "for improved survival of the anadromous fish at hydroelectric In August 1992 the Bonneville Power Administration published its 1992 Water Management Record of Decision setting out a program designed to improve the life cycle of anadromous fish stocks. The program included increasing spills and flows to benefit salmon and ways of replacing power that was lost through water storage, flow augmentation and spill benefitting the salmon. Prior to publishing the Record of Decision, the Bonneville Power Administration had prepared a Biological Assessment evaluating the impact of its 1992 operations, concluding that the operations did not jeopardize the listed species; it also had collaborated with the Army Corps of Engineers and the Bureau of Reclamation in preparing the statutorily required "1992 Columbia River Salmon Flow Measures Options Analysis/Environmental Impact Statement."

facilities" in the system and provision of "flows of sufficient quality and quantity between such facilities to improve reproduction, migration and survival of such fish as necessary to meet sound biological objectives." 16 U.S.C. Sec. 839b(h)(6)(E). The Bonneville Power Administration must act consistently with the Council's program but in the end has final authority to determine its own decisions. Seattle Master Builders Ass'n v. Pacific Northwest Electric Power and Conservation Planning Council, 786 F.2d 1359, 1362 (9th Cir.1986), cert. denied, 479 U.S. 1059, 107 S.Ct. 939, 93 L.Ed.2d 989 (1987); 16 U.S.C. Sec. 839b(h)(10)(A).

PROCEEDINGS

The plaintiffs, a broad coalition of organizations devoted to the protection of the environment, sent the defendants in May 1992 a 60 day notice of intent to sue for violations of the Endangered Species Act. On August 4, 1992 they filed their First Amended Complaint seeking a declaratory judgment and injunctive relief. They sought "to compel defendants to engage in adequate and comprehensive consultation" regarding the impact of the operation of the Columbia River Power System on threatened and endangered salmon in the Snake River; to provide sufficient conditions for migrating fish to insure their survival; and to minimize to the maximum extent practicable the incidental take of the listed species by the power system. The plaintiffs alleged that spring and summer chinook in the Snake River, whose population once exceeded 1.5 million adult fish per year, had averaged only 9,674 wild fish per year from 1980 to 1990, and that the Snake River fall chinook, once the most important fall chinook stock in the Columbia...