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Pacific N.W. Generating Coop. v. Brown

ELR Citation: 23 ELR 21404
Nos. Nos. 92-973-MA et al., 822 F. Supp. 1479/37 ERC 1110/(D. Or., 04/01/1993)

The court holds that an electric power cooperative, metal corporations, and a nonprofit corporation representing consumer-owned electric utilities lack standing to challenge the decision of the National Marine Fisheries Service (NMFS) and other federal agencies to augment water flow over dams on the Columbia River in the Pacific Northwest to improve juvenile migration of two species of salmon listed as endangered or threatened under the Endangered Species Act (ESA). Plaintiffs claimed that NMFS arbitrarily and capriciously violated ESA §7 by imposing requirements on hydroelectric power operations without also imposing requirements, in agency biological opinions and assessments, on other factors that affect the listed species, including harvest, habitat, and hatchery management. Plaintiffs also claimed that the NMFS failed to apply its environmental baseline standard in its ESA §7 consultations and failed to use the best scientific and commercial data available. Plaintiffs claimed that defendant federal agencies violated the ESA by permitting harvest, habitat, and hatchery activities to proceed without adequate and coordinated §7 consultations. Finally, plaintiffs claimed that NMFS' biological opinions addressing the 1992 operation of projected Columbia River hydropower operations on listed salmon species, the effect of the 1992 fishery management plan for ocean mixed stock salmon fisheries on listed salmon species in the Snake River, and the impact on listed species of 1992 summer and fall season fisheries on the Columbia River below the Bonneville Dam violate ESA §7 and the Administrative Procedure Act.

The court first holds that plaintiffs lack standing because the causal link between the injury they assert, rate increases due to decreased flow for power generation, and the alleged ESA violations is attenuated. Also, plaintiffs failed to demonstrate that their alleged injury was redressable, because there is nothing to ensure that their rates will go down or that the power supply will become any more stable if defendants fully comply with the ESA and shut down commercial harvesting in the areas in question. The court finds that the connection between the impact of the ocean and in-river commercial harvests and the lower power rates and power stability sought by plaintiffs is too tenuous. The court notes that the source of plaintiffs' legally protected interest in a stable and economic power supply relies on provisions of the Northwest Power Act that are within the exclusive jurisdiction of the U.S. Court of Appeals for the Ninth Circuit. The court also notes that a conflict exists between plaintiffs and the species they seek to protect.

The court next holds that plaintiffs' challenges to defendants' 1992 hatchery operations are moot, because the government demonstrated that it was unlikely to repeat its failure to engage in consultations. The court holds, however, that plaintiffs' challenges to the augmentation of water flow and to federally authorized harvests are not moot, because a federal official indicated that flow augmentation would continue in 1993, and government affidavits indicate that in preparing future harvest plans the government will not make any radical departures from past practices. The court holds premature plaintiffs' motion for summary judgment that defendants may not lawfully authorize the trade or transport of listed species through incidental take permits it issued to commercial fisheries under ESA §§7 and 9, because the parties have not yet filed the administrative record and the court has not yet proceeded to the underlying merits of plaintiffs' actions. The court declines to rule on whether Indian tribes are necessary parties to this litigation, because the court disagrees with plaintiffs' application of ESA §§7 and 9 to the government incidental take statement and biological opinions authorizing ocean and in-river harvests in certain zones in and offshore from the Pacific Northwest.

Counsel for Plaintiffs
R. Erick Johnson, Stuart Jones, William Masters
Bullivant, Houser, Bailey, Pendergrass & Hoffman
300 Pioneer Tower
888 SW Fifth Ave., Portland OR 97204
(503) 228-6351

Counsel for Defendants
Thomas Lee, Ass't U.S. Attorney
U.S. Attorney's Office
312 U.S. CtHse., 620 SW Main St., Portland OR 97205
(503) 326-2101

Charles Shockey
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Amicus Curiae
Larry Echo Hawk, Attorney General
Attorney General's Office
State House, Boise ID 83720
(208) 334-2400