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American Rivers v. National Marine Fisheries Service



Various environmental and fishing groups alleged that federal agencies, namely the National Marine Fisheries Service (NMFS), the United States Army Corps of Engineers (Corps of Engineers), and the Bureau of Reclamation, violated the Endangered Species Act (ESA)[1] by issuing a Biological Opinion in which the agencies claimed that barging endangered Snake River smolts would mitigate the adverse impacts of the hydroelectric operations. In this case, the Ninth Circuit dealt primarily with the procedural issues of mootness and notice, and did not reach the substantive merits of the claims.

In August 1994, numerous environmental and fishing groups filed suit against the Corps of Engineers, the Bureau of Reclamation, and NMFS alleging that the 1994-1998 Biological Opinion violated section 7(a)(2) of the ESA.[2] Particularly, the groups alleged that the federal agencies violated the Act by issuing a Biological Opinion in which the agencies claimed that barging endangered Snake River smolts would mitigate the adverse impacts of the hydroelectric operations. The proceedings were stayed in order for the defendants to reinstate consultation on the biological opinion and to bring the biological opinion into compliance with another court order.[3]

While the proceedings were stayed, NMFS issued a new biological opinion which superseded the 1994-1998 Biological Opinion. The 1995 Biological Opinion concluded that the hydroelectric system would jeopardize the continued existence of endangered salmon and their habitat, but that barge transportation was a reasonable and prudent alternative as a major means to mitigate the adverse impacts of the hydroelectric system. After issuing the biological opinion, the federal agencies moved for summary judgment on the ground that the plaintiffs’ claims were moot.

The Oregon District Court held that the claims were not moot and granted defendants’ motion for summary judgment, but the Ninth Circuit reversed. The Ninth Circuit based its reversal on its 1995 case, Idaho Department of Fish & Game v. National Marine Fisheries Service (IDFG).[4] In IDFG, the court held that the issuance of the 1995 Biological Opinion mooted a challenge to the 1993 Biological Opinion. Furthermore, the case did not fit within the “capable of repetition, yet evading review” exception to the mootness doctrine because the 1995 Biological Opinion could still be challenged, and therefore would not evade review. There was still time to litigate the agency decisions made pursuant to that opinion.

In the present case, the new biological opinion superseded the 1994-1998 Biological Opinion, making any challenges to the latter moot. In addition, the plaintiffs’ challenge to that opinion would not evade review because the biological opinion was valid for a period of three years. Therefore, the Ninth Circuit dismissed the challenge to the 1994-1998 Biological Opinion as moot.

The second issue the court addressed was the ESA’s sixty-day notice provision. The ESA requires citizens to give the Secretary of the Interior and any alleged violators written notice of intent to sue sixty days prior to filing suit.[5] Plaintiffs failed to provide such notice to the Corps of Engineers and the Bureau of Reclamation. As a result, the Ninth Circuit was forced to dismiss the claims against those defendants.

The plaintiffs also failed to give notice to NMFS, an agency acting on authority derived from the Secretary of the Interior. However, in Bennett v. Spear,[6] the United States Supreme Court held that challenges to the adequacy of biological opinions against the Secretary of the Interior, when acting in his capacity as administrator of the ESA, are to be pled under the Administrative Procedure Act (APA), rather than under the ESA citizen suit provision. The APA does not have a sixty-day notice requirement, and merely requires a final agency action. Here, the biological opinion was a jeopardy opinion which permitted the agency to “take” the endangered species under certain conditions. The Ninth Circuit held the opinion to be a final agency action. Accordingly, the Ninth Circuit held that claims against NMFS were properly pled.

[1]Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1543 (1994).

[2]Id. § 1536(a)(2).

[3]Idaho Dep’t of Fish & Game v. National Marine Fisheries Serv. (IDFG), 850 F. Supp. 886, 900 (D. Or. 1994), vacated as moot, 56 F.3d 1071 (9th Cir. 1995). The District Court of Oregon held that the 1993 Biological Opinion was arbitrary and capricious. Because errors in the 1993 Biological Opinion were carried over into the 1994-1998 Biological Opinion, the federal agencies reinitiated consultation on the new opinion.

[4]IDFG, 56 F.3d at 1071.

[5]16 U.S.C. § 1540(g)(2)(A)(i) (1994).

[6]520 U.S. 154 (1997).

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