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American Rivers v. National Marine Fisheries Serv.

ELR Citation: 27 ELR 20967
Nos. 95-35462, 109 F.3d 1484/(9th Cir., 04/02/1997, 09/16/1997)

The court holds that environmental and commercial fishing groups' challenge to a National Marine Fisheries Service (NMFS) biological opinion (BO) is moot, while a challenge to a subsequent BO may be properly pled under the Administrative Procedure Act (APA). The NMFS' BOs concerned the impact of the Federal Columbia River Power System on the Snake River salmon and its critical habitat. The NMFS concluded in its 1994-1998 BO that its plan to transport juvenile salmon around dams on the river in trucks and barges did not jeopardize the salmon's existence. The groups challenged this BO. While that suit was pending, the NMFS issued a second BO that concluded that the operation of the dams would jeopardize the salmon and its critical habitat. The 1995 BO recommended reasonable and prudent alternatives for the operation of the dam, including transportation of the salmon. The court first holds that any challenge to the 1994-1998 BO is moot because the 1995 BO supersedes the previous BO. Further, the 1994-1998 BO will not evade review because the 1995 BO will not expire until 1998. Moreover, because the 1995 BO was issued before the district court granted defendants' summary judgment motion, any challenge to the 1994-1998 BO was moot. As to the 1995 BO, the court previously dismissed the groups' claim for failing to comply with the 60-day notice provision of Endangered Species Act §11(g). However, pursuant to the U.S. Supreme Court's decision in Bennett v. Spear, 27 ELR 20824 (U.S. 1997), the court amended its opinion to hold that the groups properly pled APA claims against the NMFS. APA claims were not pleaded against the U.S. Army Corps of Engineers (the Corps) and the Bureau of Reclamation (the Bureau), however. Thus, the case was remanded for further proceedings on the groups' APA claim against the NMFS, and for dismissal of their ESA claims against the Corps and the Bureau.

Counsel for Plaintiffs
Adam J. Berger
Earth Justice Legal Defense Fund
705 Second Ave., Ste. 203, Seattle WA 98104
(206) 343-7340

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

Before Ferguson, Brunetti and King,* JJ.