National Wildlife Federation v. National Marine Fisheries Service

Snake River fall chinook salmon (the salmon), which occupy part of the Columbia River system, were considered a threatened species under the Endangered Species Act. In accordance with the Endangered Species Act, the Federal Columbia River Power System consulted with the National Marine Fisheries Service (NMFS) (defendant) on the preparation of a Biological Opinion (BiOp) regarding the effect of Columbia River dam operations on the salmon. In 2000 the NMFS issued a BiOp, concluding that continued dam operations could jeopardize the salmon, but that such jeopardy could be avoided by off-site mitigation activities. The National Wildlife Federation (plaintiff) challenged the BiOp in federal district court, and the court vacated the BiOp on the basis that its no-jeopardy conclusion improperly relied on off-site mitigation as well as mitigation actions that were uncertain to occur. The NMFS issued a new BiOp in 2004, again finding that continued dam operations would not put the salmon in jeopardy. This time, however, the NMFS focused on the discretionary dam operations, classifying then-existing operations as nondiscretionary and using the past and present environmental impacts as the baseline for its analysis. The district court also found the new BiOP to be invalid, pointing to multiple procedural and substantive defects. The court granted a preliminary injunction in favor of the National Wildlife Federation, ordering the NMFS to spill water over the dams. Although the NMFS raised concerns about the effectiveness of the remedy, in issuing the injunction, the court considered expert testimony regarding the effectiveness of spills in improving the passage of fish, the results of prior spills, and the NMFS’s contrary conclusions in the 2000 BiOp regarding the effectiveness of spills in encouraging salmon survival. The NMFS appealed, arguing that the district court made erroneous factual findings regarding the impact of dam operations on the salmon and that the district court abused its discretion in granting the preliminary injunction. The NMFS argued that the district court should have deferred to its expertise, and that in any event the injunction should be narrowed.