ELR Citation: ELR 21111
No(s). s. 93-35531 et al (9th Cir. Jun 3, 1994)

The court affirms a district court decision that dismissed a challenge by corporate and cooperative hydropower consumers to a decision by federal agencies to augment water flow over dams on the Columbia River in the Pacific Northwest. The flow augmentation is intended to improve juvenile migration of two species of salmon listed as endangered or threatened under the Endangered Species Act (ESA). The court first holds that plaintiffs have standing to bring their ESA claims. Although plaintiffs have not shown that the district court erred in finding that causation is unproved and that the redressability is speculative, under footnote seven of the U.S. Supreme Court's decision in Lujan v. Defenders of Wildlife, 22 ELR 20913 (1992), it could be argued that they need not establish causation or redressability with anything more than reasonable probability. The court holds that plaintiffs have an economic interest in restoration of the species and that an irremediable conflict of interest does not exist between hydropower consumers and the fish. The court next holds that plaintiffs have met the prudential "zone of interest" test: They are asserting their own rights, they are not litigating a merely abstract question, and their interest in preserving the salmon falls within the zone of interests protected by the ESA. The court notes that although, arguably, every user of electricity purchased from plaintiffs has an economic interest similar to plaintiffs', common sense can easily distinguish between the remote interest of such users and the plaintiffs' interest.

The court, however, upholds the district court's determination that plaintiffs' claims that defendant agencies failed to comply with the ESA's consultation provisions on habitat and hatchery issues are moot, because the agencies had commenced consultations on these issues. The court further holds that plaintiffs do not have standing to complain about additional cost imposed on hydropower, because nothing in the ESA confers standing for that purpose. The court holds that plaintiffs' claim that the agencies should have included hatchery and habitat in a comprehensive consultation is moot. Regarding the plaintiffs' claims that the agencies should have consulted on the effects of harvesting visually indistinguishable species that results in taking some endangered salmon, the court holds that plaintiffs misconstrued the ESA in arguing that such harvesting is not "incidental" taking of endangered species permitted under ESA §7(b)(4). In common sense and in terms of the statute, the few endangered salmon taken constitute "incidental" take when captured. Finally, the court rejects plaintiffs' argument that permission to take such salmon requires provisions designed to prevent the trade or transport of the endangered species when taken. It was not the intention of the statute to ban all salmon fishing or to place on the federal defendants an enforcement burden that no one could accomplish.

[The district court's opinion is published at 23 ELR 21404.]

Counsel for Plaintiff
R. Erick Johnson, R. Daniel Lindahl
Bullivant, Houser, Bailey, Pendergrass & Hoffman
300 Pioneer Tower
888 SW Fifth Ave., Portland OR 97204
(503) 228-6351

Counsel for Defendants
Thomas C. Lee, Ass't U.S. Attorney
U.S. Attorney's Office
888 SW Fifth Ave., Ste. 1000, Portland OR 97204
(503) 326-2101

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

Before Browning and Kozinski, JJ.