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Northwest Resource Info. Ctr. v. National Marine Fisheries Serv.

ELR Citation: 26 ELR 20713
Nos. Nos. 94-35334 et al., 56 F.3d 1060/40 ERC 1996/(9th Cir., 06/01/1995)

The court holds that the U.S. Army Corps of Engineers (the Corps) did not violate the National Environmental Policy Act (NEPA) when it failed to discuss in a supplemental environmental impact statement (SEIS) its transportation program for endangered and threatened salmon species in the Columbia and Snake River basin, and claims that the National Marine Fisheries Service (NMFS) violated NEPA and the Endangered Species Act (ESA) in issuing an incidental take permit to the Corps under ESA §10 are moot. The court first holds that if the transportation program and federal river flow improvement measures discussed in the SEIS are "connected actions," NEPA requires the Corps to address the transportation program in the SEIS. The court holds, however, that they are not. Therefore, the SEIS' "brief" discussion of why alternatives involving changes to the transportation program were eliminated from detailed study fully complies with the Council on Environmental Quality's "alternative discussion" regulation at 40 C.F.R. §1502.14(a). The court further holds that the plaintiffs' claim that NMFS violated the ESA in issuing the §10 permit is moot. The §10 permit expired during 1993, and the transportation program is now operating under a new §10 permit that is valid from 1994 through 1998. The agency action does not evade review, because the five-year duration of the current permit affords litigants adequate time to obtain judicial review.

[Related cases are published at 23 ELR 21218, 24 ELR 21117 and 21384, and 26 ELR 20709 and 20710.]

Counsel for Plaintiffs
Daniel J. Rohlf, Prof.
Northwestern School of Law
10015 SW Terwilliger Blvd., Portland OR 97219
(503) 768-6600

Counsel for Defendants
Peter A. Appel
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

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