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Idaho Department of Fish & Gamev. National Marine Fisheries Service



The Aluminum Company of America and other Direct Service Industries (DSIs), the Pacific Northwest Generating Cooperative (PNGC), and the Public Power Council (PPC) appealed the district court’s decision that federal agencies could reinitiate consultation with the National Marine Fisheries Service (NMFS) on the 1994-1998 Operations Plan. The Ninth Circuit vacated the judgment of the district court and remanded the case with instructions to dismiss the case as moot.

The U.S. Bureau of Reclamation (BOR), the U.S. Army Corps of Engineers (Corps), and the Bonneville Power Administration (BPA) were required to consult with NMFS pursuant to section 7 of the Endangered Species Act (ESA)[1] before the agencies could implement the 1993 Operations of the Federal Columbia River Power System. This consultation was necessary because dam operations would affect the Snake River sockeye salmon, listed as an endangered species, and the Snake River Spring/Summer and Fall chinook salmon, listed as a threatened species.

NMFS initially drafted a jeopardy biological opinion and recommended the agencies take certain alternative actions, including augmenting water flow. After drafting the initial opinion, two significant changes occurred. The agencies agreed to modify their plan to include the recommended actions, and the forecast for spring and summer flow improved. Due to the change in circumstances, NMFS issued a no-jeopardy opinion. NMFS used a two-step analysis to reach this result. First, NMFS analyzed whether the 1993 Operations Plan would reduce salmon mortality when compared with a baseline period of 1986-1990. Next, NMFS analyzed whether the Plan along with the modifications the agencies had agreed to would be reasonably likely to reduce salmon mortality such that populations would stabilize.

In 1993, the Idaho Department of Fish and Game brought suit against the NMFS, the Corps, and BOR, alleging that NMFS had violated the ESA. The State of Oregon intervened as a plaintiff and the Aluminum Company of America and other DSIs, PNGC, and PPC intervened as defendants. The DSIs asserted cross-claims against NMFS, the Corps, BOR, and a third-party claim against BPA. The DSIs challenged the two-step analysis. The district court granted summary judgment to Idaho holding that NMFS’s Biological Opinion (BO) was arbitrary and capricious. The court ordered NMFS to reinitiate consultation with the federal agencies. The district court’s decision came out twelve days before the 1993 BO was due to expire. The court allowed the parties to reinitiate consultation on the 1994-1998 Operations Plan. The DSIs and PNGC appealed.

The Ninth Circuit did not reach the merits of the appeal because it found the claims of the DSIs and PNGC moot due to the expiration of the 1993 BO and the issuance of the 1994-1998 BO. The court, however, did state that “a challenge is not barred if the action at issue is capable of repetition, yet likely to evade review.”[2]If an agency action is of too short a duration to allow full litigation before it ceases and there is a reasonable expectation that the plaintiffs will be subjected to the action again, the challenge is not subject to the mootness doctrine.

The court found that the plaintiffs in this case did not fit the Greenpeace Action v. Franklin exception because in this case although the 1993 Operations Plan lasted for only a year, the next plan lasted for four years. The four-year plan would give the plaintiffs sufficient time to obtain judicial review.

[1]16 U.S.C. § 1536 (1994).

[2]Greenpeace Action v. Franklin, 14 F.3d 1324, 1329 (9th Cir. 1992).

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