Pacific Northwest Generating Co-op. v. Brown, Civ. No. 92-973-MA

Decision Date01 April 1993
Docket Number92-1260-MA and 92-1264-MA.,Civ. No. 92-973-MA
PartiesPACIFIC NORTHWEST GENERATING COOPERATIVE, Plaintiff, v. Ronald BROWN, et al., Defendants. The ALUMINUM COMPANY OF AMERICA, et al., Plaintiffs, v. Ronald BROWN, et al., Defendants. PUBLIC POWER COUNCIL, Plaintiff, v. Ronald BROWN, et al., Defendants.
CourtU.S. District Court — District of Oregon



R. Erick Johnson, Stuart Jones, William Masters, Bullivant, Houser, Bailey, Pendergrass & Hoffman, Portland, OR, for plaintiff PNGC.

Jeffery Ring, James Buchal, Gary Firestone, Heller, Ehrman, White & McAuliffe, Portland, OR, for plaintiffs Aluminum Co. of America, et al.

Gregory Miner, Cynthia Lombardi, Bogle & Gates, Portland, OR, for plaintiff PPC.

Charles Turner, U.S. Atty., Thomas Lee, Asst. U.S. Atty., Portland, OR, Fred Disheroon, Special Litigation Counsel, James Kilbourne, Charles Shockey, U.S. Dept. of Justice, Environment and Natural Resources Div., Washington, D.C., for defendants.

Thane Tienson, Copeland, Landye, Bennett & Wolf, Portland, OR, for intervenor Salmon for All.

Robert Costello, Office of the Atty. Gen., Olympia, WA, for intervenor State of Wash.

Theodore Kulongoski, Stephanie Striffler, Special Litigation Unit, Oregon Dept. of Justice, Salem, OR, Cheryl Coon, Oregon Dept. of Justice, Portland, OR, for intervenor State of Or.

Mark Rutzick, Doug Blomgren, Preston, Thorgrimson, Shidler, Gates & Ellis, Portland, OR, Bruce Smith, Roshalt, Robertson & Tucker, Boise, ID, for intervenors Northwest Forest Resource Council, et al.

Don Olowinski, Richard Burleigh, Hawley Troxell Ennis & Hawley, Boise, ID for intervenor Coalition for Idaho Water.

Victor Sher, Todd True, Adam Berger, Sierra Club Legal Defense Fund, Seattle, WA, Neil Kagan, Portland, OR, for intervenors Northwest Resource Information Center, Inc., American Rivers, Oregon Natural Resource Council and Federation of Fly Fishers.

Larry Echohawk, Clive Strong, William Whelan, Boise, ID, for amicus State of Idaho.

Howard Arnett, Karnopp, Peterson, Noteboom, Hubel, Hansen & Arnett, Bend, OR, for amicus Confederated Tribes of the Warm Springs Reservation.

Douglas Nash, Nez Perce Tribal Executive Committee, Lapwai, ID, for amicus Nez Perce Tribe.

Tim Weaver, Cockrill & Weaver, Yakima, WA, for amicus Yakima Indian Nation.

Richard Reich, Eric Nielsen, Taholah, WA, for amicus Quinault Indian Nation.

Marc Slonim, John Arum, Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, WA, for amicus Makah Tribe.

Daniel Hester, Fredericks, Pelcyger, Hester & White, Boulder, CO, for amicus Umatilla Indian Reservation.


MARSH, District Judge.

Plaintiffs filed these actions claiming that defendants violated the Endangered Species Act (ESA) with respect to actions taken affecting recently listed salmon species. The linchpin of plaintiffs' dispute with defendants relates to the technical and economic impact of defendants' decision to augment flows over dams in an effort to improve juvenile fish migration: plaintiffs submit opinions from biologists declaring that flow augmentation has an insignificant impact upon the protection of the listed salmon species, while arguing that these measures contribute to increased power rates. Plaintiffs proffer, again by expert declarations, that a reduction in salmon harvests would have a significantly positive impact upon the species while posing a comparatively minimal economic burden on commercial fishing interests.

However, like the salmon's attempt to return to its natural spawning ground, before reaching the merits of these actions, plaintiffs must first survive the long migration through the many procedural barriers which must be considered by the judicial system in order to comply with the United States Constitution. By raising these procedural jurisdictional dams, defendants now seek summary judgment against all claims in these actions on the basis that plaintiffs fail to satisfy the "cases" and "controversies" elements of Article III, § 2 and because indispensable parties cannot be joined. Two of the plaintiffs seek partial summary judgment on claims for declaratory relief on the application of "incidental take" permits to commercial harvests. While plaintiffs' views on one of the most complex and multi-faceted challenges facing the Pacific Northwest may well be as valid as any other, I find that, like many of the salmon these days, their claims simply cannot survive the journey home. Thus, for the reasons that follow, defendants' motions are granted and plaintiffs' motions for partial summary judgment are denied.

I. Introduction & Overview
a. The Fish

The Columbia River, its largest tributary, the Snake River, and their surrounding environments provide residents of the Northwest with vast and invaluable resources. One of their most notorious resources is the anadromous salmon, two species of which have recently been listed as endangered or threatened by the National Marine Fisheries Service (NMFS). The NMFS determined that the Snake River sockeye salmon constituted an endangered species pursuant to the ESA. The listing became effective December 20, 1991. The NMFS determined that the Snake River spring/summer chinook and Snake River fall chinook were threatened species, and this listing became effective May 22, 1992.1

The "listing process" for these salmon species began in 1978 and included 13 years of biological study.2 Scientists estimate that the population of Snake River spring/summer chinook has steadily decreased from 1.5 million in the late 1800s, to an average of 125,000 during the 1950s, to lows of wild fish ranging from 3,343 fish to 21,870 from 1980 to 1988. April 10, 1992 Biological Opinion, p. 13. Snake River fall chinook have experienced similar trends, decreasing from an historical high of 72,000 wild fish to 78 in 1990 and 318 in 1991. Id., at 14-15. According to Idaho Fish and Game records, Snake River sockeye salmon reached a known historical escapement peak into Redfish Lake of 4,361 in 1955, compared to an escapement of 4 in 1991.

Plaintiffs do not challenge the validity of the listings. Further, there is no dispute that the Snake River sockeye is a distinct population segment of the species Oncorhynchus (O.)3 nerka, and that the Snake River spring/summer chinook and the Snake River fall chinook are distinct population segments of the species O. tshawytscha, and thus, each constitutes a protectable "species" for the purposes of the ESA.4 There is also no dispute that, although classified as a distinct stock, the listed species are identical in physical appearance to non-listed stocks of the same race.

The listing of these salmon species has, and will continue to have, a significant impact upon at least four river activities directly at issue in this case:

(1) harvest — of salmon for commercial, sport-recreational and tribal uses;

(2) habitat5 — which includes the 1,270 miles of Columbia River water (745 of which lie in the United States), 1,038 miles of the Snake River, and adjacent land uses including timber harvests, road building, grazing, mining, farming, and recreation;

(3) hatcheries — which release fish into the Snake and the Columbia rivers to increase harvest, but which may have a detrimental effect on wild stocks due to increased fishing pressure, increased predation,6 competition for limited food resources, spread of disease, and potential adverse genetic effects;7 and

(4) hydropower — from operations generated from hydroelectric dams operated by the Army Corps of Engineers (COE), the Bureau of Reclamation (BOR) and various private power companies. Hydroelectric power produced by the COE and BOR is marketed by the Bonneville Power Administrations (BPA).

Although the listings have been anticipated for years, the action has come at a particularly critical time in the Pacific Northwest. According to the 1991 Northwest Power Plan, for the first time since the Northwest Power Act (NWPA) was passed in 1980, population increases and other changes have made it impossible for the Northwest to be an energy exporter. We have absorbed all of what was our formerly "excess power," and are now forced to look to new power sources.

In 1992, the COE and the BOR increased water flows in the Federal Columbia River Power System (FCRPS) for the purpose of benefitting the migration of juvenile listed species. However, this action diminished the use of the water for power production and thus reduced the amount of power available to the BPA for marketing and increased costs of power supply by $60 million. Stipulated Facts # 58, 59 & 65. Increased costs from 1992 operations will initially be paid from BPA's financial reserves, but the BPA expects to recover its increased costs from its customers. Stipulated Facts # 67 & 79. Salmon "water budgets"8 place a stress on the Columbia River system, as do the recent loss of nuclear power supplements, six continuous years of drought conditions, warming effects of El Nino, and increased pressure from the federal government to require the BPA to repay almost $1 billion in federal loans. See the 1991 Northwest Power Plan. However, as far as the salmon are concerned9, the most significant "stress" upon the river resource is industrial and consumer electric usage which rely upon the dams and hydropower operations. According to the June 1991 NMFS report, "Factors for a Decline A Supplement to the Notice of Determination of Snake River Spring/Summer Chinook Salmon Under the Endangered Species Act," eight million of the ten million historical losses of salmon and steelhead is attributable to hydropower development and operation. Further, as of 1991, cumulative mortality rates for juvenile spring/summer chinook salmon passing the eight mainstem hydroelectric projects is estimated to be as high as 91%.

Another historically significant factor contributing to the decline of the salmon runs is "overutilization." The...

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