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Salmon Spawning & Recovery Alliance v. Gutierrez

ELR Citation: 38 ELR 20258
Nos. No. 06-35979, (9th Cir., 10/08/2008)

The Ninth Circuit affirmed in part and reversed in part a lower court decision holding that conservation groups lack standing to challenge the U.S. government's decision to enter into, and to remain a party to, the Pacific Salmon Treaty of 1999, an effort by Canada and the United States to manage salmon populations originating in Alaska and the Pacific Northwest. The groups lacked standing on their claim that National Oceanic and Atmospheric Administration (NOAA)-Fisheries' biological opinion (BO) underlying U.S. entry into the treaty violated the Administrative Procedure Act (APA) §5 and Endangered Species Act (ESA) §§7 and 9 because their claim cannot be redressed. Although the court could set aside the BO, it cannot remedy the harm asserted since the court cannot undo the treaty. Similarly, the lower court properly dismissed the groups' claim that continued U.S. participation in the implementation of the treaty jeopardizes listed salmon in violation of ESA §7(a)(2) and is arbitrary and capricious under the APA. Again, their claim cannot be redressed because the court cannot order renegotiation of the treaty. However, in light of new information about listed salmon, ESA §7 and its implementing regulations require the U.S. government and NOAA-Fisheries to reinitiate consultation on the BO prepared for the treaty. Unlike the other claims, this claim is a forward-looking allegation whose remedy rests in the hands of federal officials and does not hinge on upsetting the treaty.