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National Wildlife Fed'n v. National Marine Fisheries Serv.

ELR Citation: 37 ELR 20079
Nos. No. 06-35011, (9th Cir., 04/09/2007) Aff'd

The Ninth Circuit upheld a lower court decision rejecting National Oceanic and Atmospheric Administration-Fisheries' 2004 biological opinion (BO) addressing the effects of the proposed operation of Federal Columbia River Power System dams and facilities on salmon and steelhead in the lower Columbia and Snake rivers. The BO found that proposed operations for 2004 through 2014 would not jeopardize the 13 area salmonid species that are listed as threatened or endangered nor adversely modify their critical habitat in violation of the Endangered Species Act (ESA). The BO's jeopardy analysis, however, was structurally flawed, rendering it incompatible with ESA. The opinion's analysis of impacts on critical habitat was defective as well. The lower court judgment, therefore, was proper. Nor was the lower court's chosen remedy an abuse of discretion. Requiring consultation with states and tribes constituted a permissible procedural restriction rather than an impermissible substantive restraint.