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Idaho Dep't of Fish & Game v. National Marine Fisheries Serv.

ELR Citation: 26 ELR 20710
Nos. Nos. 94-35524, -35568, 56 F.3d 1071/40 ERC 2005/(9th Cir., 06/01/1995) claims moot

The court holds moot claims the state of Idaho brought against the National Marine Fisheries Service (NMFS) for allegedly violating the Endangered Species Act (ESA) when the NMFS issued a biological opinion (BO) that three federal agencies' 1993 operations plan for the federal Columbia River power system would not jeopardize the existence of the endangered Snake River sockeye salmon and threatened Snake River spring/summer and fall chinook salmon. The court holds that Idaho's claims are moot, because the BO has been superseded and the challenged action is not capable of repetition yet likely to evade review. The three federal agencies already incorporated the BO into their 1993 operations plan, which has expired. The 1993 BO was not followed by a BO of similarly short duration. Rather, it was followed by a 1994-1998 BO with an ample life-span for litigants to obtain judicial review.

[The district court's opinion is published at 24 ELR 21384. Related cases are published at 23 ELR 21218, 24 ELR 21117, and 26 ELR 20709 and 20713.]

Counsel for Plaintiff
J. Carol Williams
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
James L. Buchal
Ball, Janik & Novack
101 SW Main St., Ste. 1100, Portland OR 97204
(503) 228-2525

Before Hall, O'Scannlain, and Rymer, JJ.