National Wildlife Federation v. National Marine Fisheries Service

Several species of salmon and steelhead in the Columbia River were listed as threatened or endangered under the Endangered Species Act (ESA). The species experienced high mortality due to dams managed by the United States Army Corps of Engineers and the Bureau of Reclamation (collectively, the acting agencies). The acting agencies proposed actions related to the Federal Columbia River Power System, and the National Marine Fisheries Service (NMFS) (defendant) issued an opinion finding that the actions were unlikely to jeopardize the listed species’ continued existence or critical habitat. The opinion categorized irrigation, flood-control, and power-generation activities as nondiscretionary because those were legally mandated goals assigned to the acting agencies. The opinion then focused its analysis only on actions the NMFS deemed discretionary and excluded consideration of the species’ chances of recovery. The National Wildlife Federation (plaintiff) challenged the opinion in federal district court, arguing that it miscategorized discretionary actions as nondiscretionary, excluded from its analysis the existing degraded baseline conditions caused by the dam, and failed to consider the actions’ impacts on the likelihood of recovery for the listed species. The NMFS argued that it correctly categorized nondiscretionary actions and that degraded baseline conditions were not relevant; the NMFS stated that the relevant inquiry was whether the proposed action would make existing conditions appreciably worse. Finally, the NMFS argued that the species’ recovery was irrelevant and that if there was no reduction in the species’ chances of continued existence, there could be no finding of jeopardy. The district court found that the opinion was structurally flawed, and the NMFS appealed.