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



The Northwest Resource Information Center (NRIC) brought suit against the U.S. Army Corps of Engineers (Corps) and the National Marine Fisheries Service (NMFS). The Idaho Department of Fish and Game intervened as a plaintiff while the Pacific Northwest Generating Cooperative and a number of Direct Service Industries intervened as defendants. NRIC claimed that NMFS violated the Endangered Species Act (ESA) by issuing a section 10[1] permit that allowed the Corps to “take” Snake River sockeye salmon, an endangered species. The district court granted summary judgment for the defendants on this claim. NRIC also claimed that both the Corps and NMFS had violated the National Environmental Protection Act (NEPA). The district court granted summary judgment against NRIC on the NMFS claim but granted summary judgment for NRIC on the Corps claim. NRIC appealed the grant of summary judgment for NMFS on the ESA claim and the defendants appealed the grant of summary judgment against the Corps.

The Corps began a program of transporting salmon around the dams on the Columbia River in the 1970s. The program was designed to decrease the effect of the dams on the salmon. In 1992, pursuant to the ESA listing of two salmon species, one threatened and one endangered, the Corps issued the Columbia River Salmon Flow Measures 1992 Options Analysis/Environmental Impact Statement (OA/EIS). The OA/EIS examined the environmental effects of increasing the flow in the rivers by increasing the amount of water released from storage reservoirs. The Corps decided to implement a program of reservoir drawdown and flow augmentation. However, the Corps did not look at eliminating the transportation system because they believed the river was not currently capable of maintaining a sufficient population of juvenile salmon. In 1993, the Corps prepared a Supplemental Environmental Impact Statement (SEIS) that examined the flow augmentation measures the Corps would be implementing in the 1993 operational year. Again, the Corps assumed the transportation plan would continue.

NRIC claimed that the SEIS should have contained a discussion of the impacts of and alternatives to the transportation program. The defendants argued NRIC was not challenging final agency action as required by the Administrative Procedure Act because there had been no action, event, or proposal regarding the transportation plan. The court rejected this argument. Although NRIC was challenging the 1993 SEIS and the subsequent Record of Decision actions dealing with the flow improvement program, NRIC was asserting that the agency action taken may have been different if the transportation program had been considered.

The court next considered whether NRIC had waived the right to assert this claim by not raising its concerns in the scoping process. The court found the record showed that NMFS was aware of criticisms regarding the scope of the EIS “before, during, and after the scoping process.”

The court then turned to the merits of the NRIC claim. The issue was whether the transportation program was considered a “connected action” as defined by 40 C.F.R. § 1508.25. If the transportation program was a “connected action,” then the agency should have addressed the program in the same EIS as the flow improvement program. Based on several previous opinions,[2] the Ninth Circuit found that the transportation program was not a “connected action” because it had “independent utility” and either program standing alone would benefit the salmon. It also found that the transportation program was not a “link in the same bit of chain” as the flow improvement plan because the Corps would continue with the transportation program even without the flow improvement program. Because the transportation program was not a “connected action,” the court held that NMFS complied with NEPA by briefly discussing the reasons that alternatives involving changes to the transportation program were not considered in the detailed study.

Next, the court turned to NRIC’s appeal on the issue of whether NMFS had violated NEPA by granting the Corps a section 10 permit that allowed them to “take” salmon for their transportation program. “Take” is defined in the ESA as the killing, harming, capturing, or collecting of any listed species.[3] The court examined the threshold question of mootness. Mootness addresses whether there is still a live case or controversy for the court to decide. NRIC’s transportation claims involved an agency action which took place entirely in 1993. The court concluded that unless NRIC’s claim fit into an exception to the mootness doctrine, it would be barred. The primary exception to the mootness doctrine is for actions that “may be repeated and yet evade review.”[4] The Ninth Circuit in Greenpeace Action v. Franklin[5] said this exception applied to actions of too short a duration to be fully litigated before the action ceases, when it is reasonably expected that the plaintiffs will be subjected to the action again. While the section 10 permit was valid for less than one year, it was followed by a section 10 permit that lasted for four years. This would allow an adequate period in which to obtain judicial review. Therefore, the court concluded that NRIC’s NEPA claim against the Corps was moot.

[1]16 U.S.C. § 1539 (1994).

[2]Sylvester v. United States Army Corps of Eng’rs, 884 F.2d 394 (9th Cir. 1989); Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1985); Trout Unlimited v. Morton, 509 F.2d 1276 (9th Cir. 1974).

[3]16 U.S.C. § 1538(a)(1) (1994).

[4]Alaska Fish & Wildlife Fed’n v. Dunkle, 829 F.2d 933, 939 (9th Cir. 1987), cert. denied, 485 U.S. 988 (1988).

[5]14 F.3d 1324 (9th Cir. 1992).

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