American Rivers v. National Marine Fisheries Service

The Columbia River Basin in Oregon was home to the Snake River sockeye salmon and the Snake River chinook salmon. The salmon were anadromous fish, meaning that they hatched and spent their early years in freshwater, migrated to the Pacific Ocean as juveniles (i.e., smolts), matured in the Pacific Ocean, and then migrated back to freshwater as adults to spawn and die. In the twentieth century, the salmon population in the Columbia River Basin declined due to conditions including overharvesting, habitat degradation, and the construction and operation of dams in the region. In the 1990s, the National Marine Fisheries Service (NMFS) (defendant) listed the sockeye as an endangered species and the chinook as a threatened species. The NMFS also designated a critical habitat for the sockeye and chinook, including a migratory corridor in the Snake River and Columbia River. In addition to salmon, the Columbia River Basin was also home to the Federal Columbia River Power System (the power system), which was a hydroelectric-power operation run by the United States Army Corps of Engineers and the Bureau of Reclamation (the agencies) (defendants). The power system included several dams and reservoirs and generated nearly half of the electricity used in the Pacific Northwest. The power system indisputably had a negative impact on the downstream migration of smolts from the Columbia River Basin to the Pacific Ocean. The power system’s dams slowed the flow of water through the reservoirs, which caused the smolts to pass through the reservoirs more slowly and exposed the smolts to predators, higher water temperatures, and poor-quality water. Some smolts were also injured when they passed through the power system’s hydroelectric turbines, and others were diverted through bypass systems at the dams and suffered stress, disorientation, and descaling. In an attempt to minimize the dams’ effects on the smolts, the NMFS started a smolt-transportation program that removed migrating smolts from the Columbia River, transported them around four of the dams, and then placed the smolts back into the Columbia River below the final dam. The smolt-transportation program (1) had the potential to cause physical injury and stress to the smolts, (2) increased the risks of predation and disease transmission during the holding and transport periods, (3) increased the risk of predation at the point where the smolts were released back into the river, and (4) impaired returning adult salmons’ homing instincts. Nevertheless, scientific evidence suggested that the smolt-transportation program would likely improve smolts’ relative survival rates in certain circumstances. Environmental groups and commercial-fishing operations (collectively, American Rivers) (plaintiffs) brought an action against the NMFS and the agencies to challenge the operation of the power system, claiming that the power system jeopardized the existence of the sockeye and chinook salmon and adversely modified the salmons’ critical habitat, in violation of the Endangered Species Act. American Rivers further asserted that the NMFS and the agencies had improperly used the smolt-transportation program to avoid a determination that the power system’s operation jeopardized the salmons’ existence. The district court granted summary judgment for the NMFS and the agencies, and American Rivers appealed.