Ocean and Coastal Law Center, School of Law, University of Oregon, Eugene OR 97403
by
Richard Hildreth, Professor of Law, Co-Director, Ocean and Coastal Law Center
Jeanne Thompson, J.D. 1994, University of Oregon
Table of Contents
I. Introduction
II. Northwest Power Act
A. Background
B. Northwest Power Planning Council's Strategy for Salmon
1. Balancing Approach
2. Specific Recovery Strategies
C. NPA Harvest Impacts
1. Treaty Harvest
2. Nontreaty Harvest
D. NPA River Operations Impacts
III. The Endangered Species Act
A. Goals and Operation of the Endangered Species Act
B. Jeopardy and Critical Habitat
C. Economic Considerations in Critical Habitat Designation
D. ESA Recovery Plans
1. Introduction
2. NMFS Recovery Planning Guidelines
3. Recovery Plan Litigation
E. Northwest ESA Litigation
1. Sweet Home Chapter of Communities for a Greater Oregon v. Babbit
2. Pacific Northwest Generating Coop. v. Brown
3. Idaho Dep't of Fish and Game v. National Marine Fisheries Serv.
F. ESA Harvest Impacts
1. Treaty Harvest
2. Nontreaty Harvest
G. River Operations Impacts: A Comparison of the Salmon Recovery Plan
with the NPPC's Strategy for Salmon
IV. Congressional Reauthorizations Relevant to Salmon Recovery
A. Clean Water Act
B. Magnuson Fishery Conservation and Management Act
C. Marine Mammal Protection Act
D. Marine Mammal Takings Relevant to Salmon Recovery
E. Integration of ESA/MFCMA/MMPA Resource Management
V. Conclusion: Legal Linkage for Integrated River Basin and Coastal Ocean
Resources Management in the Pacific Northwest
REFERENCES AND BIBLIOGRAPHY
ABBREVIATIONS AND ACRONYMS
The U.S. National Marine Fisheries Service (NMFS) has listed the Snake River
sockeye salmon as an endangered species (56 Fed. Reg. 58619), and Snake River
spring/summer and fall chinook salmon as threatened species under the Endangered
Species Act (ESA) (57 Fed. Reg. 14653). NMFS may reclassify these threatened
species as endangered. A wide array of resource uses throughout the Columbia River
Basin and North Pacific Ocean is implicated by their listing and the designation of the
Columbia, Snake, and Salmon Rivers, adjacent riparian zones, and many Snake and
Salmon River tributaries as critical habitat (58 Fed. Reg. 68543).
In October 1993 a NMFS-appointed recovery team released its draft Snake
River Salmon Recovery Plan Recommendations for a 45-day comment period. Its
recommendations are discussed throughout this memo and compared to the
Northwest Power Planning Council's (NPPC's) 1993 Strategy for Salmon recovery. A
final NMFS recovery plan for the listed species is expected by the end of 1994.
The Columbia and Snake River systems were, at their peak, among the
greatest anadromous fish producers in the world. Unfortunately, Columbia River fish
runs have declined 80 percent since the 1880s. Today, conflicts between natural
resource use and salmon survival lead to an annual loss of 85 to 95 percent of all
downstream migrating juvenile salmon. Historically, up to 16 million adult salmon
entered the Columbia River annually; less than 2 million adults swim upstream today.
Only 10 to 15 percent are naturally produced wild fish. The rest come from
hatcheries. Some chinook salmon runs have been reduced to as few as 15 fish, while
other runs have been wiped out completely. Throughout the Northwest the American
Fisheries Society estimates that 106 salmon populations are extinct and over 210
additional populations are at risk (Oregon Water Resources 1994).
This memo examines legal aspects of the survival and recovery of Columbia and
Snake River salmon, including the above listed species. Those involved in their recovery
have identified four major action areas: hydropower, harvest, hatcheries, and habitat
(including ocean ecology), known as the four Hs. This memo focuses on harvest and
hydropower and related river operations aspects. The role of hatcheries in recovery
is addressed elsewhere (Bragg 1993).
Many of the court decisions discussed are very recent lower court opinions and
thus subject to amendment, rehearing, or appeal, but they are indicative of current
judicial thinking on legal issues related to salmon recovery. Comments on this memo's
analysis and conclusions are welcomed at the address above.
II. Northwest Power Act
A. Background
Hydropower dams are the most visible obstacles to salmon recovery. The
Pacific Northwest Electric Power Planning and Conservation Act of 1980 (Northwest
Power Act or NPA) was designed to protect the salmon resource and to mitigate the
damage done by both federal and private hydropower projects in the Northwest
through the Columbia River Basin Fish and Wildlife Program. The act created the
Northwest Power Planning Council, an eight-member body composed of two
representatives each from Idaho, Montana, Oregon, and Washington. The Council was
mandated by Congress to "promptly develop and adopt . . . a program to protect,
mitigate, and enhance fish and wildlife, including related spawning grounds and habitat,
on the Columbia River and its tributaries" (16 U.S.C. § 839b(a)(2)(B)). In developing
this program, the Council is required to consult with, among others, state and federal
fish and wildlife managers, Indian tribes, and federal program managers. These
federal managers include the Bonneville Power Administration (BPA), the Bureau of
Reclamation, the U.S. Army Corps of Engineers (Corps), and the Federal Energy
Regulatory Commission (FERC).
B.Northwest Power Planning Council's Strategy for Salmon
1. Balancing Approach
Balancing is central to the protection of fish and wildlife in the Columbia River
Basin under the Northwest Power Act. While Congress intended that the program
implemented by the Northwest Power Planning Council would "protect, mitigate and
enhance fish and wildlife" affected by the maintenance of Columbia and Snake River
hydropower facilities, section 4(h) also requires that any such program insure the
Pacific Northwest an "adequate, efficient, economical and reliable power supply" (16
U.S.C. § 839b(h)(5)). Additionally, where equally effective means of achieving the
same sound biological objective exist, the alternative with the minimum economic cost
is to be chosen. NPPC staff have developed fairly detailed estimates of the
hydropower costs of Columbia Basin salmon recovery, including both lost power
revenues and outlays for physical measures such as improved dam bypass systems
(Ruff and Fazio 1993).
The NPPC has developed a series of Columbia River Basin Fish and Wildlife
Programs. The latest program, released in 1993, includes a Strategy for Salmon and
takes into account the Snake River salmon listings under the Endangered Species Act.
2. Specific Recovery Strategies
Early goals of the Northwest Power Planning Council were to double the
population of Columbia and Snake River salmon and steelhead trout runs by adding to
already extensive hatchery programs, while expending less effort on mitigation and
habitat restoration. The 1993 Fish and Wildlife Program maintains the goal of
doubling current runs--from 2.5 million to 5 million fish--while focusing on protecting the
biological diversity of wild (nonhatchery) populations and taking a holistic approach
toward watershed and habitat restoration.
Specifically, the NPPC's Strategy for Salmon establishes midterm rebuilding
targets of up to 50,000 for the listed Snake River chinook salmon populations. To
reach these goals, the strategy calls for the lowering ("drawdown") of Snake River
reservoir levels to increase river flow and reduce the travel time downstream of
juvenile fish. Additionally, the downstream flow of the Columbia would be augmented
to ensure an annual average flow of at least 200,000 cubic feet per second (cfs).
Steeper drawdowns would be implemented beginning in 1995.
The Strategy for Salmon also calls for installation or improvement of screens
to divert juvenile fish from power-generation turbines at the major Columbia and
Snake River dams. Until adequate screens are in place, impounded water will be spilled
over dams to aid the migration of juvenile salmon. Improvements in barging
techniques to transport juvenile salmon past Columbia and Snake River dams will also
be implemented. Bypass systems are suggested for nonfederal dams in the region as
well. Finally, the strategy calls for studies to evaluate the threats to salmon recovery
from predators such as upstream squawfish and downstream marine mammals.
C. NPA Harvest Impacts
1. Treaty Harvest
The salmon fishing rights of many Northwest Indian tribes were preserved by
treaties negotiated with the Cayuse, Nez Perce, Umatilla, Walla Walla, and Yakama
tribes in 1855. These rights include the rights to fish in their "usual and accustomed
places" (United States v. Winans; Seuffert Bros. v. United States); the right to fish
without state fishing licenses (Tulee v. Washington); the right of treaty tribes to fish
on- and off-reservation (Puyallup Tribe v. Department of Game); the right to fish
without state-imposed, discriminatory regulation of traditional tribal fishing practices
(Department of Game v. Puyallup Tribe); the right to a reasonable total share of the
annual catch (Puyallup Tribe, Inc. v. Department of Game); and the right to sufficient
harvest for a moderate living standard, which can be up to one-half the returning fish
(Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n).
Presently the treaty harvest is only 1400 fish annually (Oregon Water Resources
1994).
While treaty making with tribes was halted by Congress in 1871, the 1855
treaties, ratified under the Constitution by the United States Senate, still have the
force and effect of law. The rights conferred and affirmed by these agreements can
be unilaterally abrogated by Congress; however, courts require that "Congress'
intention to abrogate treaty rights must be clear and plain" if a challenge to treaty
rights is to prevail (Lone Wolf v. Hitchcock; Fong Yue Ting v. United States).
The Northwest Power Act provided for no such abrogation of treaty fishing
rights and explicitly provided that no
provision of this Act or any plan or program adopted pursuant to the
Act [shall] . . . affect the rights or jurisdictions of the . . . Indian tribes . .
. over water of any river or stream or over any groundwater resource
[or] . . . otherwise be construed to alter or establish the respective
rights of Indian tribes . . . with respect to any water or water-related
rights. (16 U.S.C. § 839g(h))
At least one author has suggested that this recognition of treaty rights in the
Northwest Power Act is not enough to protect the rights of treaty tribes and that
the balancing inherent in that act and related legislation undercuts the rights secured
for tribes by the Supreme Court (Sanders 1983).
Indicative of this concern is an Idaho federal district court decision which
recently held that the "treaty tribes do not own the fish, but only have a treaty right
which provides an opportunity to catch fish if they are present at the accustomed
fishing grounds," either on- or off-reservation (Nez Perce Tribe v. Idaho Power Co.).
According to the opinion, the law does require the federal government, the states,
and even private parties in some circumstances "to take remedial actions should their
development of the rivers or the surrounding land injure the fish runs" (emphasis
added). Furthermore, the treaties "require that any development authorized by the
states which injures the fish runs be non-discriminatory in nature . . . but does not,
however, guarantee that subsequent development will not diminish or eventually, and
unfortunately, destroy the fish runs." Congressional termination or specific injuries to
the exercise of treaty rights authorized by Congress might require federal
compensation according to the opinion. But the tribe had no cause of action for
damages against Idaho Power Company for the undisputed adverse impacts on
treaty fishing of the company's federally licensed dams on the Snake River, the court
ruled.
2. Nontreaty Harvest
Nontreaty commercial and sport fishermen currently have no property-like
rights in the salmon of the Columbia and Snake Rivers. When asked, most courts have
ruled against claims by fishermen that they have any property rights in the fish they
target or have a right to continue fishing as a livelihood which cannot be terminated
without compensation (Organized Fishermen of Florida v. Watt). If individual
transferable quotas or similar allocation devices were introduced into relevant
commercial salmon fisheries, the courts might be persuaded to treat them as
property rights. Under similar circumstances in Australia, several federal and state
courts have found compensable property rights to exist (O'Connor and O'Connor
1994; Australia 1993). Such a finding raises the possibility that regulatory actions
which adversely affect the rights significantly must be accompanied by compensation.
Under current salmon management approaches, such compensation does not appear
to be required.
Ocean catch regulations outside state waters are established by the Pacific
Fishery Management Council under the federal Magnuson Fishery Conservation and
Management Act (MFCMA), with the approval of the Secretary of Commerce.
Generally the federal courts will overturn the regulations only if they are arbitrary or
capricious. For state ocean waters extending three nautical miles from shore, state
salmon fishing regulations generally are based on the federal regulations. Inconsistent
state regulations can be superseded under MFCMA section 306(b). For coastal
estuaries that are beyond the reach of federal regulation under the MFCMA (but not
the Endangered Species Act as discussed below), state regulations increasingly are
consistent with relevant federal regulations.
The Northwest Power Planning Council has no power under the Northwest
Power Act to regulate fishing. However, in its Strategy for Salmon the NPPC calls on
the Pacific Fishery Management Council to limit further the ocean harvest of salmon in
order to increase the number of adult fish returning to the Columbia and Snake Rivers
and their tributaries to spawn; to allow for no commercial harvest of Snake River
sockeye below the confluence of the Columbia and Snake Rivers; to reduce the take of
Snake River fall chinook to 55 percent of the annual run; to reduce all nontreaty
harvest of Snake River spring chinook to just 4 percent of the upriver run; and to
eliminate altogether the commercial fishery for summer chinook salmon. In addition to
these reductions in the domestic fishery, the NPPC also called for the abolition of high
seas driftnet fishing; for a voluntary lease-back and buy-back program for
commercial fishing licenses; for adoption of catch-and-release rules for sports fishing;
and for a thorough accounting of Columbia and Snake River salmon caught in other
fisheries, including Canadian and Alaskan fisheries.
D.NPA River Operations Impacts
Under the NPA, the NPPC has no authority to directly enforce the changes in
river operations and related recommendations included in its salmon strategy.
Instead, NPA section 4(h)(11) obligates the federal agencies involved with Columbia
River Basin hydroelectric facilities, namely, BPA, the Corps, the Bureau of Reclamation,
and FERC, to take the salmon strategy "into account at each relevant stage of
decisionmaking processes to the fullest extent practicable." The federal courts will
review federal agency compliance with that mandate, but in a quite deferential way
(Confederated Tribes of the Yakama Indian Nation v. FERC; National Wildlife Fed'n v.
FERC). Thus, under the NPA, fish and habitat continue to be traded off against power
and other water uses (Blumm 1987).
On the other hand, judicial review of federal agency compliance with the
Endangered Species Act is much less deferential (Tennessee Valley Auth. v. Hill). For
example, the federal agencies' 1993 Columbia Basin river operations plan was
disapproved and their 1994-99 plan called into question under the ESA in the Idaho
Department of Fish and Game case discussed below. As a mechanism for forcing
change in decision-making processes which balance fish and habitat losses against
other benefits gained, the ESA is without parallel in federal environmental law. Of the
current legal tools available, only the ESA appears to have the potential of achieving
salmon recovery.
III. The Endangered Species Act
A. Goals and Operation of the Endangered Species Act
The Endangered Species Act reflects a national policy favoring biodiversity. It
seeks to prevent the extinction of species that are endangered or threatened by
severely restricting the circumstances under which such species can be intentionally or
unintentionally "taken" (Jarman, Hildreth, and Marsailer Forthcoming) and to promote
their recovery.
Under ESA section 4, the Secretary of the Interior, acting through the U.S. Fish
and Wildlife Service (USFWS), is charged with listing species determined to be
threatened or endangered. Endangered species are those which the agency has
determined to be "in danger of extinction throughout all or a significant portion of
their range," while threatened species are those determined "likely to become an
endangered species within the foreseeable future" (16 U.S.C. §§ 1532(6), (20)).
"Interested persons" can petition to have species listed.
Section 9 of the ESA makes it unlawful for any person subject to the jurisdiction
of the United States to take, import, export, possess, sell, deliver, carry, transport,
or ship any species listed as endangered (16 U.S.C. § 1538). "Take" includes
harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing,
collecting, or attempting to collect (16 U.S.C. § 1532(19)). However, under section
10, takings that are "incidental to, and not the purpose of, the carrying out of an
otherwise lawful activity" not targeted on a listed species may be authorized by
permit. Thus fishing practices which target the listed Snake River species are
prohibited by ESA section 9. Whether takings of listed species can be permitted as
"incidental" in the context of mixed stock salmon fisheries has not been definitely
determined.
B. Jeopardy and Critical Habitat
ESA section 7 prohibits federal agencies from carrying out actions that would
be likely to "jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification of habitat of
such species . . . determined . . . to be critical" (16 U.S.C. § 1536(a)(2)). Either NMFS
or the USFWS must study a proposed federal action's effects on listed species, issue
a biological opinion on whether the action would violate section 7 by jeopardizing the
species' continued existence or adversely modifying its critical habitat, and, if a
violation is found, suggest reasonable and prudent alternatives to the proposed
action (Rohlf 1989). If no section 7 violation is found, but the proposed federal action
nevertheless would result in the incidental taking of a listed species, NMFS or the
USFWS will issue an "incidental take statement" specifying the conditions under which
the incidental take will be allowed (Environmental Law Institute n.d.). Biological
opinions may also include nonbinding advisory conservation recommendations.
"Critical habitat" is defined under the ESA as
specific areas . . . occupied by the species . . . on which are found those
physical or biological features (I) essential to the conservation of the
species and (II) which may require special management considerations or
protection; and . . . specific areas outside the . . . area occupied by the
species . . . upon a determination by the Secretary [of Interior or
Commerce] that such areas are essential for the conservation of the
species. (16 U.S.C. §§ 1532(5)(A)(i),(ii))
On December 28, 1993, NMFS designated critical habitat for the Snake River
sockeye, spring/summer chinook, and fall chinook salmon (58 Fed. Reg. 68543). This
designation consisted of four components: spawning and juvenile rearing areas;
juvenile migration corridors; areas for growth and development to adulthood; and
adult migration corridors (58 Fed. Reg. 68544). Specific areas were designated for
each of these components; NMFS also identified the essential elements of each
component that qualified these areas as critical habitat for the listed species. The
designated habitat includes the Columbia, Snake, and Salmon Rivers, many Snake and
Salmon River tributaries, and adjacent riparian zones 300 feet wide on each bank.
Ocean areas used by the listed species were not included; nevertheless, ocean
resource uses relevant to their recovery are affected by the other ESA requirements
discussed in this memo.
In addition to its designation of critical habitat, NMFS determined that some
activities taking place in or around the critical habitat areas may require "special
management considerations" in order to protect the integrity of the critical habitat
(58 Fed. Reg. 68545). These activities include timber harvesting, livestock grazing,
mining, road construction, hydropower plant operations, water storage, and barge
transportation. NMFS specifically cited BPA, FERC, the Corps, the Bureau of
Reclamation, the Bureau of Land Management, the USFWS, the Forest Service, and the
Environmental Protection Agency as federal agencies that would be affected by the
critical habitat designations.
C.Economic Considerations in Critical Habitat Designation
ESA section 4(b)'s mandate that the benefits and costs of designating
particular areas as critical habitat be identified can be misleading as to the overall
role economic considerations play in the administration of the ESA. In critical habitat
designations, the focus is on the incremental net costs specifically resulting from
critical habitat designation, over and above the economic effects attributable to
listing the species. Economic analyses submitted by commenters as part of the
critical habitat designation process must clearly distinguish the incremental costs
directly attributable to designation of specified areas as critical habitat.
Agency analysis begins with identification of those activities that are likely to
affect the area being considered and evaluation of how those activities may diminish
the value of the habitat for the recovery of the species. Then the probable economic
impacts of additional management measures likely to result from designating the
areas as critical habitat are analyzed. Finally, for particular areas the benefits of
exclusion are weighed against the benefits of designation to identify areas eligible for
exclusion under the statute (56 Fed. Reg. 51684). Much of the agency analysis may
be carried out after critical habitat initially is proposed for designation (49 Fed. Reg.
38906; 50 C.F.R. § 424.19).
For critical habitat designation and recovery planning for listed Snake River
salmon, NMFS commissioned a report on the economic effects within the range of
potential critical habitat designations by a University of Washington consultation team
(Huppert, Fluharty, and Kenney 1992) and requested public comments on both the
scientific and economic aspects prior to its initial critical habitat proposal (56 Fed.
Reg. 51684). As detailed in the draft Snake River salmon recovery plan, upon the
species' listing, activities ranging from commercial, sports, and tribal fisheries
harvests to forestry, agriculture, and urban development become reviewable under
sections 7 and 9 of the ESA, with only limited consideration of economic factors as
the region heads into the recovery plan implementation phase.
D. ESA Recovery Plans
1.Introduction
Section 4 of the Endangered Species Act establishes guidelines for recovery
plans for endangered species (16 U.S.C. § 1533(f)). Development and implementation
of such a plan is mandatory, like the designation of critical habitat, "unless the
[Secretary] finds that such a plan will not promote the conservation of the species."
Although the statutory language describing the content and implementation of
recovery plans is minimal, if developed and implemented, recovery plans have the
potential to provide a strong tool for the protection and possible recovery of
endangered or threatened species (Houck 1993).
Recovery plans are "for the conservation and survival" of listed species.
Importantly, the ESA defines "conservation" as "the use of all methods . . . necessary
to bring any endangered . . . or threatened species to the point at which the[se]
measures are no longer necessary" (16 U.S.C. § 1532(3)). The definition states that
"such methods . . . include . . . all activities associated with scientific resource
management such as research, census, law enforcement, habitat acquisition and
maintenance, propagation, live trapping, and transplantation . . ." (Id.). This definition
of conservation is important because it states "scientific resource management" is to
be used over other, more politically or economically oriented management tools.
Section 4(f) sets out three guidelines for recovery plans, requiring: (1) a
description of the management actions needed for conservation and survival of the
species; (2) "objective, measurable criteria which, when met" would allow delisting of
the species; and (3) estimates of the time and cost necessary to reach the recovery
plan's goal, together with specific interim steps. While the ESA specifies that
designation of critical habitat shall include consideration of the economic impacts of
such a designation, recovery plans give priority to those areas specifically impacted
by economic activity; it is therefore foreseeable that an area excluded from critical
habitat for economic considerations could still be included in a recovery plan.
2. NMFS Recovery Planning Guidelines
NMFS guidelines provide a "framework for developing and implementing
coordinated recovery programs for endangered, threatened, and depleted marine
species under the jurisdiction of NMFS" (57 Fed. Reg. 53097). The guidelines state:
The recovery plan is intended to provide the basis to assist other
Federal agencies in utilizing their authorities to further the purposes of
the ESA and MMPA. As soon as practicable after a plan is approved, a
meeting of all responsible parties should be held to begin the
implementation of recovery tasks. (NMFS Office of Protected Resources
1992)
In addition to the content requirements outlined in the statute,
recovery plan[s] identif[y] and assig[n] priorities required for the
recovery of a species. The goal of recovery is to restore a listed
species to the point where it is no longer endangered or threatened. . . .
Recovery under the ESA does not necessarily mean historic or current
carrying capacity. (Id.)
Recovery plans must include, "to the maximum extent practicable," (1)
"objective, measurable criteria that would indicate recovery" and (2) "[t]he specific
tasks necessary for recovery . . . identified and described in sufficient detail to
indicate the nature and rationale for the tasks" (Id.).
The section of the recovery plans focusing on "needed recovery actions" is the
heart of the recovery plan. "Each task must be described as specifically as possible,
including the responsible parties, feasibility or problems that may be encountered in
completing the task" (Id.). Recovery success depends on the implementation of those
measures.
The recovery plan also must include an implementation schedule that indicates
the priority, cost, and time required for each task. The priority system identified in
the Planning Guidelines ranks recovery tasks from 1 to 3:
Priority 1: An action that must be taken to prevent extinction or to
identify those actions necessary to prevent extinction.
Priority 2: An action that must be taken to prevent a significant decline in
population numbers, habitat quality, or other significant negative impacts
short of extinction.
Priority 3: All other actions necessary to provide for full recovery of the
species. (Id.)
The priority system is intended to allow NMFS to set priorities for allocation of
available resources among different recovery plans.
3. Recovery Plan Litigation
Unlike other elements of the ESA, recovery plans have not been the subject of
much litigation. A 1987 federal district court opinion found broad discretion both in
the Secretary's adoption and the Agency's implementation of the plan (National
Wildlife Fed'n v. National Park Serv.). The court reviewed a National Park Service
decision to keep open a campground in the habitat of the threatened grizzly bear
contrary to a recovery plan, pending the findings of an environmental impact
statement (EIS). The court interpreted the language of ESA section 4(f) to mean
that the Secretary "is required to develop a recovery plan only insofar as he
reasonably believes that it would promote conservation." Thus, the court found not
only that the Secretary's duty to develop a plan was discretionary, but that here,
where the recovery plan was already developed and called for the closing of the
campground, the National Park Service had discretion in plan implementation.
However, a recent federal district court case held that, in certain
circumstances, the Secretary's "duty to develop and implement a plan is mandatory,
not discretionary" (Sierra Club v. Lujan). Sierra Club v. Lujan concerned several
species dependent on the Comal Springs and San Marcos Springs habitat associated
with the Edwards Aquifer near San Antonio, Texas, and an endangered species whose
habitat is entirely underground in the aquifer itself. Plaintiffs sued the government for
its failure to establish springflow requirements for the protection of the species. In
response to the federal defendants' claims that the Secretary's duty to implement
recovery plans is discretionary, the court found that the language of the ESA is clearly
mandatory. Only where the Secretary demonstrated that "such a plan will not
promote the conservation of the species" can the Secretary choose not to develop
and implement a plan.
Finding that recovery plans are increasingly the "fundamental tool the USFWS
uses to protect endangered species," and that the "[t]imely development and
implementation of recovery plans is critical to many specific recovery actions," the
court found that specific mandatory elements of the San Marcos recovery plan were
not implemented. While the court specifically did not rule that the defendants were
required to "implement every step in the recovery plan," it found that federal agencies
"may not arbitrarily, for no reason or for inadequate or improper reasons, choose to
remain idle."
Other recovery plan litigation has involved the discretionary nature of plan
contents, recovery plans and enforcement of the ESA, and recovery plans and
meaningful consultation. An opinion from the federal district court of the Southern
District of Alabama stated: "Assuming . . . that the adoption of a recovery plan is
mandatory, the contents of those plans are discretionary" (Morrill v. Lujan). The
court quoted the language from the ESA in which the only guide for the content of
recovery plans is prefaced by the language "to the maximum extent possible," which
implies discretion.
Another recent opinion held the "ESA does not expressly condition the
enforcement of the [section 9] prohibition on taking a protected species to takings
occurring after the agency adopts a recovery plan, identifies critical habitat or issues
protective regulations" (United States v. Glenn-Colusa Irrigation Dist.). The court
enjoined an irrigation district's water diversions pending the installation of screens
that would prevent the taking of threatened salmon in violation of section 9. Thus the
Glenn-Colusa case is particularly significant for salmon recovery. Under its reasoning,
water uses that physically take listed salmon species can be enjoined pending action
to eliminate the taking independently of recovery planning for the species.
E.Northwest ESA Litigation
Three recent court decisions involving ESA administration in the Northwest are
particularly relevant to salmon recovery.
1.Sweet Home Chapter of Communities for a Greater Oregon v.
Babbit
Plaintiffs in this case successfully challenged USFWS regulations interpreting ESA
section 9's prohibition of "harm" to listed species as covering adverse modifications
to their habitat, not necessarily designated as critical, whether on public or private
land.
The district court found that the habitat protection mechanisms explicitly
provided by Congress in the ESA such as land acquisition were not exclusive, and that
the USFWS regulations were not void for vagueness. However, the District of
Columbia Court of Appeals overturned this ruling, finding that "[h]arm in the definition
of 'take' in the Act means an act which actually kills or injures wildlife."
Nine verbs accompany the word "harm" in the definition of "take" under ESA
section 9: "harass," "pursue," "hunt," "shoot," "wound," "kill," "trap," "capture," and
"collect." According to Judge Williams' majority opinion, because all of the words
"involve a substantially direct application of force, which the [FWS'] concept of
forbidden habitat modification . . . lacks," extending the term "harm" to include
habitat modification goes beyond congressional intent. Judge Mikva's dissenting
opinion in the case reflected the view (also held by the Ninth Circuit Court of Appeals)
that the term "harm" read within the context of the act can easily encompass
adverse habitat modifications (Palila v. Hawaii Dep't of Land and Natural Resources).
These conflicting interpretations eventually could be resolved by the U.S. Supreme
Court or by Congress in reauthorizing the ESA.
In any case, habitat impacts will continue to play a key role in salmon recovery
under ESA section 7 discussed above. Under section 7 the focus is on adverse
impacts on officially designated critical habitat (for the listed Snake River salmon
species, the Columbia and Snake Rivers, many of their tributaries, and adjacent
riparian areas) by federal agencies or persons whose actions require federal agency
approval under any of the broad array of federal environmental and regulatory laws.
Section 9's takings prohibition will continue to apply to physical takings of the listed
species anywhere (including ocean areas outside their designated critical habitat) that
are not approved in an ESA section 10 incidental take permits.
2.Pacific Northwest Generating Coop. v. Brown
In this case, three high-volume users of Columbia River Basin hydropower filed
suit challenging decisions taken by NMFS with respect to the listed Snake River
species. Plaintiffs argued, inter alia, that the flow augmentation provided to assist
salmon migration in the 1992 federal agencies' Columbia Basin river operations plan
approved by NMFS under ESA section 7 had an insignificant impact upon the listed
species recovery while contributing to increased power rates. Plaintiffs claimed that a
reduction in salmon harvest would have a more positive impact on salmon recovery,
and thus NMFS' approval of augmented flows was arbitrary and capricious.
Federal district Judge Malcolm Marsh did not reach the merits of the challenge,
but instead denied plaintiffs standing under the citizen suit provisions of the ESA. The
plaintiffs claimed standing because they suffered economic injury; and, while the court
did not find that economic injuries were outside the scope of injuries contemplated by
the ESA's citizen suit provision, it did hold that "the causal link between the
[economic] injury and the asserted ESA violations" was too attenuated in this case.
Additionally, the court held that plaintiffs failed to "satisfy the 'redressible' element [of
the ESA] since there is nothing to ensure that [their] rates will go down or that the
power supply will become any more stable if defendants fully comply with the ESA and
commercial harvesting is shut down completely . . . ."
Judge Marsh's opinion appears to approve NMFS' use of incidental take permits
issued under ESA section 10 to authorize mixed stock salmon fisheries in which listed
Snake River salmon are caught incidentally along with the targeted catch of unlisted
salmon of the same species. This ruling came in the context of fisheries in which the
listed Snake River species were small percentages of the mixed stock catch; however,
the harvest rates for the threatened fall chinook were almost as great as for unlisted
fall chinook, and the threatened fall chinook numbers projected to be taken were a
significant proportion of the listed population. Pending appeals in this case could shed
important light on the application of the ESA's takings, similarity of appearance (16
U.S.C. § 1533(e)), and transport and trade (16 U.S.C. § 1538(a)(1)) provisions to
mixed stock fisheries.
3.Idaho Dep't of Fish and Game v. National Marine Fisheries Serv.
This suit, filed by the Idaho Department of Fish and Game with the support of
the State of Oregon and several treaty tribes, successfully challenged NMFS' finding
that the survival of the listed salmon species would not be jeopardized by the 1993
operation of Columbia River Basin hydropower facilities. According to federal district
Judge Marsh's March 28, 1994, opinion, NMFS' ESA section 7 biological opinion was
"too heavily geared towards a status quo that has allowed all forms of river activity
to proceed." Rather than determining the best course of action for rebuilding the
threatened and endangered salmon stocks as mandated by the ESA, federal agencies
have taken "relatively small steps" to minimize impacts on the river's heaviest users.
Judge Marsh ordered the federal agencies involved, including the Bureau of
Reclamation, the Corps, and BPA, to prepare a new river operations plan within 60
days. As an experimental interim response, in May 1994 NMFS developed and the
agencies implemented a spill plan to divert water over and around eight Columbia and
Snake River dams in aid of downstream salmon smolt migrations at a cost of about
$25 million per month in lost power generation.
The decision's reasoning calls into question the validity of the agencies' five
year
river operations plan for 1994 through January 31, 1999, which NMFS approved
through a section 7 biological opinion issued March 16, 1994. Several of the plaintiffs
in the Pacific Northwest Generating Coop. v. Brown case have asked the Ninth Circuit
to stay Judge Marsh's decision pending appeals in this and related cases.
F.ESA Harvest Impacts
1. Treaty Harvest
Of the ESA-listed Snake River species, treaty tribes take only Snake River fall
chinook and Snake River sockeye; while these species are taken for ceremonial and
subsistence uses only, even those harvest levels may be more than those species
currently can sustain. As discussed above, Indian treaty fishing is not immune from
congressional termination or nondiscriminatory federal or state regulation necessary
to protect the resource, but the federal courts scrutinize harvest reductions and
changes in the treaty tribes' usual and accustomed fishing locations of treaty fishing
activities quite closely. Nevertheless, the Snake River salmon recovery plan
recommends both those types of changes in some current treaty fishing activities.
The legal effect of the Endangered Species Act on treaty fishing rights is
unclear. The ESA contains no language preserving treaty rights like that quoted
above from the Northwest Power Act.
The current test for measuring Indian treaty rights against federal
conservation legislation was articulated by the Supreme Court in United States v. Dion.
In Dion, the Court recognized that the treaty rights of the Yankton Tribe of Minnesota
included, as of the date of the treaty signing, the right to take bald eagles for
religious and cultural purposes. Bald eagles were protected at the time of the alleged
"taking" under both the ESA and the Eagle Protection Act. The Court stated that, in
determining whether Congress intended to abrogate treaty rights, "what is essential
is clear evidence that Congress actually considered the conflict between its intended
action on the one hand and Indian treaty rights on the other, and chose to resolve
that conflict by abrogating the treaty." Because the Court found such "clear
evidence" on the face of the Eagle Protection Act (16 U.S.C. §§ 668-668d), it did not
reach the question of whether Congress chose to abrogate Indian treaty rights when
it enacted the Endangered Species Act.
The Court did not require an explicit or "express declaration" that Congress
intended to abrogate Indian treaty rights; legislative history and surrounding
circumstances were considered in addition to the plain meaning of the act. However,
stating that "Indian treaty rights are too fundamental to be easily cast aside," the
Court required that the evidence of a congressional intent to abrogate must be
"sufficiently compelling" to "ensur[e] legislative accountability."
The first federal decision to apply the test constructed in Dion to a conflict
between Indian treaty rights and the ESA was United States v. Billie. However, on its
way to finding that Congress intended to abrogate tribal hunting and fishing rights to
the extent necessary to fulfill the purposes of the ESA, the federal district court in Billie
ignored the "hard look" requirements of the Dion test in its oversimplified exploration
of legislative intent.
Specifically, the court in Billie understood the inclusion of an ESA enforcement
exception for certain Alaskans as an indication that Congress meant to abolish all
other Native American use rights in species listed under the ESA. This finding is
erroneous, because the indigenous practices of native Alaskans are not protected by
treaty; therefore, it was necessary for Congress to expressly preserve their hunting
and fishing rights in the ESA. Because treaty tribes do have rights that are the
equivalent of congressional legislation, there was no need for the express protection
which the Billie court required.
The Billie decision was distinguished by another federal district court in United
States v. Bresette which held that the Migratory Bird Treaty Act did not abrogate the
right of Chippewa Indians to take and sell the feathers of migratory birds covered by
that act. Interpreting the opinion in Billie, the court opined that "Billie should not stand
for the proposition that the inclusion of Alaskan natives' concerns in a statute as
evidence that Congress has considered Indian treaty rights in the rest of the country."
However, without citing Billie, an Idaho federal district court opinion involving
treaty fishing rights but not the ESA stated in passing that "when a species is
endangered, the states and the United States can regulate treaty fishing rights for
the purpose of protecting the species" so long as the regulation does not discriminate
against treaty fishermen (Nez Perce Tribe v. Idaho Power Co.). The opinion also
suggests that the United States might owe affected tribes compensation for the
significant impacts of ESA regulation on the exercise of treaty fishing rights.
2.Nontreaty Harvest
Both the NPPC's salmon strategy and NMFS' recovery plan recommend changes
in commercial and recreational harvest. The salmon strategy recommends voluntary
license buy-back programs while the recovery plan recommends mandatory license
buy-back programs. Due to salmon migration patterns, current harvest management
is fragmented badly. Among those involved are the U.S.-Canada Pacific Salmon
Commission, two U.S. regional fishery management councils, and several state fisheries
agencies.
Part of the statutory power of the Endangered Species Act includes the
issuance of protective regulations for threatened species pursuant to section 4(d).
The failure of other recovery efforts could lead to the use of section 4(d) regulations
throughout the migratory range of the listed Snake River species (except for the
Canadian 12-nautical-mile territorial sea; cf. United States v. Mitchell) to impose
harvest and gear limits and marking and release requirements. The experience with
using section 4(d) regulations to achieve protection of endangered and threatened
sea turtles from the impacts of shrimp trawling suggests not only the possibility of
strong initial resistance to this approach but also its ultimate legal and political
feasibility (Louisiana v. Verity).
G.River Operations Impacts: A Comparison of the Salmon Recovery Plan
with the NPPC's Strategy for Salmon
Compliance with the Endangered Species Act in the context of salmon recovery
has major economic implications for a broad array of public and private ocean,
coastal, river, and riparian resource users in the Pacific Northwest (Buck et al. 1991).
Implementing the Snake River salmon recovery plan or the Northwest Power Planning
Council's salmon strategy imposes burdens on and provides benefits to various users.
As previously mentioned, the NPPC's goal remains one of doubling salmon runs in the
Columbia River Basin. The benefits of salmon recovery are not required to be
quantified by the Endangered Species Act, but a Wilderness Society study capitalized
the value of full recovery of weak coho and chinook populations under various
assumptions of recovery or continued decline (Alkire 1993). In a recent study Berry
and Rettig (1994) were unable to identify any constitutionally mandated
compensation rights for changes in river operations due to ESA implementation; they
quite usefully explore policies that could guide any compensation which is made
available.
The potential impacts on Columbia and Snake River users of ESA
implementation are quite significant. There are many differences between the NMFS
recovery plan for the listed salmon species and the NPPC's Strategy for Salmon, but
particularly noteworthy are the different approaches to reservoir drawdowns. The
NPPC's salmon strategy calls for increased flows in the Snake River reservoirs to near
minimum operating levels and providing additional waters from Dworshak Dam and
the Upper Snake River.
In the recovery plan, the NMFS-appointed salmon recovery team acknowledged
a lack of information with which it could predict with any degree of accuracy the
biological gains from alternative recovery actions, which, coupled with the
interdependence of its many recommended actions, severely limited its ability to make
cost-effective comparisons of the biological alternatives that it considered.
Thus the recovery plan recommends proceeding first with a test drawdown
once a good experimental design that will measure the results of drawdown is
identified. Before drawing down to natural riverbed flow, the recovery team would like
to see demonstrated benefits from a drawdown to spillway crest. Pending the results
of drawdown experiments, improved transportation methods such as barging are
recommended as the principal device for increasing downstream migrant survival.
With respect to flow augmentation, the recovery team feels that decisions to use
water from storage should not be set more than a few days ahead of the release
date to avoid the biological impacts and economic costs incurred if the reservoirs do
not refill the next year.
Thus for particular watersheds and river basins, ranging in size and significance
from the Columbia-Snake to the Klamath and smaller, pending applications of the
Endangered Species Act have had and will have significant impacts on basin
management.
The United States Supreme Court and the lower federal courts have
consistently interpreted the act as favoring species survival over other considerations.
Judicial decisions and administrative actions involving river basins outside the Pacific
Northwest illustrate the act's support for immediate drastic actions with species
survival benefits. In none of the cases did the courts award compensation to
affected river users.
In Tennessee Valley Auth. v. Hill, the U.S. Supreme Court applied the act to stop
further construction on a nearly completed dam that would have flooded the only then
known habitat of the endangered snail darter fish. According to Carson-Truckee
Water Conservancy Dist. v. Clark, the Secretary of Interior, in administering a federal
reservoir, may devote all water not otherwise contracted for to endangered species
protection and need not sell the water to irrigators or other users. Congress ratified
that court decision in the Truckee-Carson-Pyramid Lake Water Rights Settlement Act
of 1990 (Pub. L. No. 101-618, 104 Stat. 3289).
Riverside Irrigation Dist. v. Andrews upheld the Corps of Engineers' denial of a
nationwide permit requested by an irrigation district to construct Wildcat Dam and
Reservoir on Wildcat Creek, a tributary of the South Platte River, because the
increased use of water that the reservoir would facilitate would deplete the stream's
flow and thereby injure a critical habitat of the endangered whooping crane.
California's continuing drought conditions have swung operation of the
mammoth federal Central Valley Project increasingly toward water releases and other
measures for salmon survival. In 1990, the National Marine Fisheries Service listed the
Sacramento River winter-run chinook salmon as threatened (55 Fed. Reg. 46515).
The United States then sued the Glenn-Colusa Irrigation District, the largest capacity
water diverter on the river, to enjoin the district's water diversions until it adopted
interim measures such as intake screens to protect the salmon. The federal district
court ordered the district to reduce its pumping rate by nearly 50 percent without
compensation to the district or affected irrigators. Reclamation Act amendments
(Pub. L. No. 102-575, 106 Stat. 4600 (1992)) also are providing increased fish flows
in the Central Valley Project. However, the winter-run chinook was reclassified as
endangered in March 1994.
IV.Congressional Reauthorizations Relevant to Salmon Recovery
Reauthorization of the ESA has been pending before Congress since 1992. The
103rd Congress is unlikely to reauthorize the ESA before its term ends in 1994,
thereby leaving its reauthorization to a subsequent Congress. The act's role in
salmon and spotted owl recovery is likely to receive significant attention in the delayed
reauthorization process.
During the 103rd Congress two other important statutes related to salmon
recovery are scheduled for reauthorization: the Clean Water Act (CWA) and the
Magnuson Fishery Conservation and Management Act. A third act, the Marine
Mammal Protection Act (MMPA), was reauthorized on April 30, 1994 (Pub. L. No. 103-
238) with the amendments significant to salmon recovery summarized below. The
MMPA, MFCMA, and marine aspects of the ESA are all administered by NMFS (NMFS
1991). The CWA is administered by the U.S. Environmental Protection Agency, the
Corps of Engineers, and the states.
A. Clean Water Act
A complete review of the issues raised in the pending reauthorization of the
CWA as the nation's principal water pollution control legislation is beyond the scope of
this memo. Aspects relevant to salmon recovery include greater emphasis on
watershed approaches to water quality maintenance and strengthened statutory
requirements and increased federal appropriations for the reduction of nonpoint
sources of pollution, including those which adversely affect salmon such as degraded
riparian habitat, runoff from urban, agricultural, and forestry activities, and structural
modifications to river and stream hydrology such as dams and diversions. The
strengthened nonpoint source provisions could be modeled on those already enacted
into law as part of the 1990 reauthorization of the Coastal Zone Management Act
(Hildreth, Brown, and Shavelson 1993).
Congress also may consider amendments to CWA section 401 in light of the
U.S. Supreme Court's recent decision upholding Washington state's authority to
establish minimum stream flows in aid of anadromous fish migrations which are
binding on federally approved projects such as FERC-licensed hydroelectric dams (PUD
No. 1 of Jefferson County v. Washington Dep't of Ecology). The Oregon Supreme
Court recently approved a similar use of section 401 (City of Klamath Falls v.
Environmental Quality Comm'n).
B.Magnuson Fishery Conservation and Management Act
As previously mentioned, the MFCMA establishes a management scheme for
domestic and foreign fishing within 3 to 200 miles offshore through development of
regional fishery management plans for the various fisheries, including ocean salmon
fisheries, that require management. Eight regional fishery management councils,
including the Pacific Fishery Management Council (PFMC), have been established to
cover the U.S. exclusive economic zone (EEZ). Each council must conform the
provisions of its fishery management plans to seven national standards aimed at
effective conservation of fishery resources. The regulations implementing each fishery
management plan must be approved by the Secretary of Commerce.
The MFCMA has been a success as far as domesticating formerly foreign
fisheries, but it is generally recognized as a failure with respect to conservation of fish
species and protection from overfishing. The waste involved in many fisheries includes
the discard of targeted species, as well as the incidental catch of nontargeted fish
(such as the three ESA-listed Snake River salmon species) and marine mammals.
These are significant issues calling for congressional attention beyond the current
focus on marine mammal incidental catch.
C.Marine Mammal Protection Act
The MMPA works similarly to the ESA to protect all marine mammals, including
sea otters, polar bears, seals, whales, dolphins, porpoises, dugongs, and manatees,
regardless of whether they are endangered or threatened. The central mechanism
designed to preserve marine mammals and rebuild species populations is a
moratorium on the taking of any marine mammal. "Taking" actions include harassing,
hunting, capturing, or killing marine mammals.
Recent federal appellate court interpretations of the breadth of the taking
moratorium vary, with the Ninth Circuit holding that a tuna fisherman may fire a rifle
into the water to deter porpoises from eating catch or bait off his lines without
committing a criminal violation of the act (United States v. Hayashi), and the Fifth
Circuit holding that tour boats which feed wild bottlenosed dolphins illegally "take"
them by disturbing their normal behavior (Strong v. United States). A 1994
amendment now defines taking by "harassment" as "disruption of behavioral
patterns, including . . . feeding . . ." (16 U.S.C. § 1362(18)(A)).
The act includes several exceptions to the taking moratorium. In addition to
those related to commercial fisheries discussed below, exceptions can be made by
permit for scientific research, public display, or enhancing the survival or recovery of a
species or stock, or to Alaskan Indians, Aleuts, or Eskimos for subsistence purposes
or for creating and selling native craftworks.
A 1988 amendment requires status reviews of marine mammal stocks
designated as depleted and the creation of conservation plans designed to restore
species or stocks to their optimum sustainable population (16 U.S.C. § 1383(b)).
D.Marine Mammal Takings Relevant to Salmon Recovery
Congress recognized conflicts between fishing and marine mammal protection
in the original MMPA. Section 102 of the original and current act prohibits persons
engaged in commercial fisheries from using "any means or methods of fishing in
contravention of any regulations or limitations, issued by the Secretary for that
fishery to achieve the purposes of this Act" (16 U.S.C. § 1372(a)(5)). Detailed
conditions on incidental marine mammal takings by commercial fishermen engaged in
particular fisheries are established pursuant to subsequent sections.
While scientific studies indicate that salmon and steelhead make up only a small
part of the seal and sea lion diet, the incidental takings provisions of the MMPA are
being examined with regard to ESA-listed salmon and other weak salmon runs and the
growing populations of several species of pinnipeds from California to Washington.
According to several fishermen, sea lions off the Oregon coast routinely take spring
chinook from commercial nets, and growing herds at the mouths of northwestern
rivers feed on the fish during their seasonal migrations (Seals 1994). In the spirit of
the Ninth Circuit decision mentioned above, a 1994 MMPA amendment exempts from
the taking moratorium nonlethal measures taken by commercial and recreational
fishermen to deter marine mammals from damaging their catch or gear (16 U.S.C. §
1371(a)(4)). Otherwise, the act's new definitiion of prohibited "harassment" as "any
act of pursuit, torment, or annoyance" which has the potential to "injure" or "disturb"
would seem to prohibit such conduct (16 U.S.C. § 1362(18)(A)).
Specific groups of pinnipeds feeding at fish ladders also have been a problem.
For example, at the Ballard locks in Seattle, Washington, sea lions gather annually
beneath the locks and consume more than half of the winter steelhead run, despite
NMFS-sanctioned "harassment" measures, which have included relocating the sea lions,
shooting them with rubber-tipped arrows, setting of underwater explosives, and
projecting the amplified calls of predator Orca ("killer") whales into the water (Seals
1994). This particular conflict has led to a 1994 MMPA amendment which authorizes
the Secretary of Commerce to allow federal or state agencies or their contractors to
intentionally "lethally remove" individual nuisance animals from any marine mammal
species or stock that is not designated as depleted or strategic under the MMPA or
listed as threatened or endangered under the ESA (Pub. L. No. 103-238, § 23). The
same section requires the Secretary (aided by the Pacific States Marine Fisheries
Commission) to investigate whether California sea lions and Pacific harbor seals are
adversely affecting the recovery of weak salmon stocks and authorizes the Secretary
to study more generally the interactions between pinnipeds and anadromous fish.
Another 1994 MMPA amendment adds a new section to the act providing that
the MMPA is not intended to alter Indian treaties (Pub. L. No. 103-238, § 14(1)).
E.Integration of ESA/MFCMA/MMPA Resource Management
Salmon recovery involves several real-world interactions governed by the ESA,
MFCMA, and MMPA that currently are not adequately addressed under these
statutory schemes. What alternatives for integrating living resource management
under the MMPA, ESA, and MFCMA are workable and politically feasible? Several
regional fishery management councils now routinely prepare multispecies fisheries
management plans (FMPs). One can consider the Pacific Fishery Management Council's
multispecies groundfish plan as a model under the existing MFCMA framework: It
covers multiple species of groundfish, acknowledges and tries to deal with overfishing
and overcapitalization through a limited entry scheme; deals with problems of salmon
bycatch in a proposed amendment; and explicitly acknowledges the Council's
responsibilities to comply with the MMPA, ESA, and the federal Coastal Zone
Management Act's federal consistency provision.
With adequate budget and personnel, the preparation of ecosystem plans by
some of the more capable councils would seem to be feasible. Such plans would be
an extension of the councils' own proposals as part of the MFCMA reauthorization
process that FMPs be required to designate habitat essential to achieving optimum
yield of a species or species complex, which in turn is said to be similar to a NMFS
staff draft proposal. To support more sophisticated planning, the councils and some
segments of the fishing industry support amending the MFCMA to allow the councils to
collect fees to help pay the costs of management.
Separately from the MFCMA, NMFS is proceeding to integrate some of its roles
under the MMPA and ESA through, for example, its October 1992 combined guidelines
covering both ESA section 4 recovery plans and MMPA section 115 conservation plans
for depleted marine mammals. Are these NMFS combined recovery planning guidelines
for ESA-listed species and depleted marine mammals, multispecies ecosystem plans
prepared by the MFCMA councils, and the councils' proposed habitat amendments to
the MFCMA adequate responses to the general need for more holistic approaches in
U.S. living marine resources management? to U.S. fulfillment of its international
biodiversity commitments? to the specific recovery needs of ESA-listed salmon that
are directly harvested by both treaty and nontreaty fishermen, incidentally harvested
on the high seas and in the U.S. EEZ by foreign fishermen and domestic fishermen
targeting nonsalmon species as well as other salmon species not listed under the ESA,
and prey for several marine mammal species? Probably not, but their implementation
would be a definite improvement over the current situation.
V.Conclusion: Legal Linkage for Integrated River Basin and Coastal
Ocean Resources Management in the Pacific Northwest
Several legal paths toward salmon recovery have been identified in this memo.
Obviously NMFS has a key role to play in implementing the recovery plan developed
under the ESA. Management of many significant activities affecting salmon recovery
could be accomplished through the promulgation of protective regulations under ESA
section 4(d). The design of such regulations would obviously be a complex and
sophisticated task requiring input to NMFS, as the "salmon czar," from the multiple
resource users in the region whose activities affect salmon recovery, and from the
Northwest Power Planning Council, relevant federal, regional, and state agencies, Indian
tribes, and other interested parties.
Those same entities and interest groups with standing under the ESA's citizen
suit provision also can support salmon recovery through rigorous enforcement of ESA
section 9's takings prohibition, which applies to both private and public sector takings
of the listed species. Regional and state agencies, Indian tribes, and interest groups
also can play a key role by actively monitoring federal agency compliance with ESA
section 7 and challenging federal actions which they have reason to believe would
jeopardize the continued existence of ESA-listed salmon species or adversely modify
their critical habitat (Idaho Sportmen's Coalition, Inc. v. U.S. Forest Service).
Treaty tribes whose subsistence and cultural takes of salmon are reduced may
seek specific remedies from the federal courts against actions that significantly
impede their exercise of treaty fishing rights, especially actions that favor nontreaty
over treaty harvest. Tribal direct harvest of listed species does not aid their
recovery. However, meaningfully honoring treaty commitments that also involve tribal
harvest of unlisted species may provide habitat protection and other benefits to both
listed and unlisted species.
With respect to habitat degradation, the Pacific Fishery Management Council
can play an important recovery role by fully complying with its obligations under the
MFCMA to comment on state and federal activities adversely affecting salmon habitat
and receive a response from any federal agencies involved specifying the mitigation
measures being considered (16 U.S.C. § 1852(i); 50 C.F.R. § 602.11(c)(7)(iii)), and to
assess the effects of salmon habitat changes in its salmon fishery management plans
(16 U.S.C. § 1853(a)(7)).
While several of these legal paths technically are limited to the recovery of ESA-
listed species, actions supporting recovery of those species would likely benefit other
Columbia and Snake River salmon species as well. Remaining to be investigated and
mitigated are the potential adverse impacts on nonsalmon species of some actions
taken in support of salmon recovery.
Alternatively, Congress could by special statute approve all or parts of the
NPPC's Strategy for Salmon, NMFS' Snake River Salmon Recovery Plan, or other
relevant proposals as meeting applicable requirements of the ESA and other federal
legislation relevant to salmon recovery. For example, in 1988 Congress enacted the
Arizona-Idaho Conservation Act to try and resolve a much more site-specific dispute
over ESA compliance and impacts on tribal cultural resources in the construction and
operation of the Mt. Graham, Arizona, observatory. The Ninth Circuit Court of
Appeals recently upheld the act's constitutionality and its project-specific approval of
the observatory as meeting applicable federal legal requirements (Apache Survival
Coalition v. United States). The court relied on the U.S. Supreme Court's approval of
a similar act approving the legal adequacy of certain national forest management
decisions in the Pacific Northwest (Robertson v. Seattle Audubon Soc'y).
However, such specific Congressional fixes for broader regional resource
management issues such as salmon recovery may not be feasible or appropriate.
The geographic, jurisdictional, and chronological breadth of the issues involved in
salmon recovery suggests the need for major policy, legal, and institutional change in
the direction of more integrated management in support of sustainable use of the
resource base. At that level, Congressional fixes take the form of integrating living
resource management under the MFCMA, MMPA, and ESA. Meanwhile, the steps
already taken toward salmon recovery reviewed in this memo, although perhaps not
sufficient to save the ESA-listed Snake River salmon species, provide legal linkage for
integrated management in support of more sustainable river basin and coastal ocean
resource use in the Pacific Northwest.
REFERENCES AND BIBLIOGRAPHY
49 Fed. Reg. 38906 (Oct. 1, 1984); 50 C.F.R. § 424.19.
55 Fed. Reg. 46515 (Nov. 5, 1990).
56 Fed. Reg. 51684 (Oct. 15, 1991).
56 Fed. Reg. 58619 (Nov. 20, 1991).
57 Fed. Reg. 14653 (Apr. 22, 1992).
57 Fed. Reg. 53097 (Nov. 6, 1992).
57 Fed. Reg. 57071 (Dec. 2, 1992); 50 C.F.R. § 226.12.
57 Fed. Reg. 59832 (Nov. 1992).
58 Fed. Reg. 16369 (Mar. 26, 1993); 50 C.F.R. § 227.
58 Fed. Reg. 68543 (Dec. 28, 1993).
Alkire, Carolyn. 1993. Wild salmon as natural capital: Accounting for sustainable use.
The Living Landscape, vol. 1. Washington D.C.: Wilderness Society.
American Factory Trawler Ass'n v. Knauss, No. C92-870R (W.D. Wash. July 24, 1992).
Appache Survival Coalition v. United States, 1994 WL 115207 (9th Cir. Apr. 8, 1994).
Australia. Parliament. Senate Standing Committee on Industry, Science, Technology,
Transport, Communications, and Infrastructure. 1993. Fisheries reviewed.
Canberra, ACT, Australia.
Berry, Helen, and R. Bruce Rettig. 1994. Who should pay for salmon recovery?
Pacific Northwest Extension Publication, PNW 470. Corvallis: Oregon State
University Extension Service.
Blumm, Michael C. 1987. The Northwest Power Act's institutional innovations and
unfulfilled promises. Journal of Environmental Law and Litigation 2:165-175.
Bragg, John. 1993. Salmon out of sync. Pacific Fishing 14, no. 9: 26-33.
Buck, Eugene H., Amy Abel, Marla L. Kessler, and Elizabeth B. Bazan. 1991. Pacific
salmon and steelhead: Potential impacts of Endangered Species Act listings.
Washington, D.C.: Congressional Research Service, Library of Congress.
Carson-Truckee Water Conservancy Dist. v. Clark, 741 F.2d 257 (9th Cir. 1984), cert.
denied, 470 U.S. 1083.
Cicin-Sain, Biliana, ed. 1992. Ocean governance: A new vision. Newark: University of
Delaware.
City of Klamath Falls v. Environmental Quality Comm'n, 318 Or. 532, 870 P.2d 825
(1994).
Confederated Tribes of the Yakama Indian Nation v. FERC, 747 F.2d 466 (9th Cir.
1984).
Department of Game v. Puyallup Tribe, 414 U.S. 44 (1973).
Environmental Law Institute. n.d. Using pollution control authorities to protect
threatened and endangered species and reduce ecological risk. Washington,
D.C.: U.S. Environmental Protection Agency.
Fong Yue Ting v. United States, 149 U.S. 698 (1893).
General Accounting Office. 1988. Endangered species: Management improvements
could enhance recovery programs. Washington, D.C.
Greenpeace v. Franklin, 982 F.2d 1342 (9th Cir. 1992).
Hildreth, Richard G., Mara Brown, and Robert Shavelson. 1993. Integrated watershed
management, cumulative impacts, and implementation of nonpoint source
controls: Legal and policy analysis. Final report to the Oregon Water Resources
Research Institute and EPA Region 10. Eugene, Or.
Houck, Oliver A. 1993. The Endangered Species Act and its implementation by the
U.S. Departments of Interior and Commerce. University of Colorado Law Review
64:277-370.
Huppert, Daniel D., David L. Fluharty, and Elizabeth S. Kenney. 1992. Economic
effects of management measures within the range of potential critical habitat
for Snake River endangered and threatened salmon species. School of Marine
Affairs, University of Washington, Seattle, Wash.
Idaho Dep't of Fish and Game v. National Marine Fisheries Serv., 1994 WL 144792 (D.
Or. Mar. 28, 1994).
Idaho Sportsmen's Coalition, Inc. v. U.S. Forest Service, No. 93-0350-S-HLR (D. Idaho
Feb. 17, 1994).
Jarman, M. Casey, Richard G. Hildreth, and Jamie Marsailer. Forthcoming. The
MFCMA-MMPA-ESA reauthorizations: Incremental fine tuning versus holistic
solutions. Ocean Yearbook 11. Chicago: University of Chicago Press.
Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).
Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988).
Marine Mammal Commission. 1993. Annual report to Congress, 1992. Washington,
D.C.
Morrill v. Lujan, 802 F. Supp. 424 (S.D. Ala. 1992).
National Marine Fisheries Service (NMFS). 1991. Strategic plan for the conservation
and wise use of America's living marine resources. Washington, D.C.
National Marine Fisheries Service (NMFS). 1992. Proposed regime to govern
interactions between marine mammals and commercial fishing operations.
Silver Spring, Md.
National Marine Fisheries Service (NMFS). Office of Protected Resources. 1992.
Recovery planning guidelines. Silver Spring, Md.
National Oceanic and Atmospheric Administration. 1993. 1995-2005 strategic plan.
Washington, D.C.
National Wildlife Fed'n v. FERC, 801 F.2d 1505 (9th Cir. 1986).
National Wildlife Fed'n v. National Park Serv., 669 F. Supp. 384 (D. Wyo. 1987).
NEPA categorical exclusion for recovery plans. 1986. Memorandum from USFWS
Director.
Nez Perce Tribe v. Idaho Power Co., 1994 WL 96501 (D. Idaho Mar. 21, 1994).
North Slope Borough v. Andrus, 642 F.2d 589 (D.C. Cir. 1980).
Northwest Power Planning Council. 1992. Strategy for salmon. Portland, Or. 2
volumes.
Northwest Power Planning Council. 1993. Columbia River Basin Fish and Wildlife
Program. Portland, Or.
O'Connor, Clive, and Margaret O'Connor. 1994. Mabo and the Law of the Sea
Convention: State and national implications in the changing position of Australia
as an international maritime state. Maritime Studies, Jan.-Feb., 1.
Oregon Natural Resources Council v. Bureau of Reclamation, 1993 U.S. Dist. LEXIS
7418 (D. Or. Apr. 5, 1993).
Oregon Water Resources Research Institute. 1994. The salmon FAQ (frequently
asked questions) sheet. Corvallis, Or.
Organized Fishermen of Florida v. Watt, 590 F. Supp. 805, aff'd, 775 F.2d 1544, cert.
denied, 476 U.S. 1169 (1984).
Pacific Northwest Electric Power Planning and Conservation Act, Pub. L. No. 96-501, 94
Stat. 2697 (1980) (codified at 16 U.S.C. §§ 839-839h).
Pacific Northwest Generating Coop. v. Brown, 822 F. Supp. 1479 (1993).
Paddock, Richard. 1994. Limits aim to enhance salmon run. Eugene Register
Guard,
Apr. 9, A1, 6A.
Palila v. Hawaii Dep't of Land and Natural Resources, 852 F.2d 1106 (9th Cir. 1988).
PUD No. 1 of Jefferson County v. Washington Dep't of Ecology, 849 P.2d 646 (Wash.
1993), aff'd, 1994 WL 223821 (U.S. Wash. May 31, 1994).
Puyallup Tribe, Inc. v. Department of Game, 433 U.S. 165 (1977).
Puyallup Tribe v. Department of Game, 391 U.S. 392 (1968).
Pyramid Lake Tribe v. Morton, 354 F. Supp. 252 (D.D.C. 1973).
Riverside Irrigation Dist. v. Andrews, 758 F.2d 508 (10th Cir. 1985).
Robertson v. Seattle Audubon Soc'y, 112 S. Ct. 1407 (1992).
Rohlf, Daniel J. 1989. The Endangered Species Act: A guide to its protections and
implementation. Stanford, Calif.: Stanford Environmental Law Society.
Ruff, James D., and John F. Fazio. 1993. Hydropower costs of Columbia River salmon
recovery. Northwest Power Planning Council, Portland, Or. Photocopy.
Sanders, Allen H. 1983. The Northwest Power Act and reserved tribal rights.
Washington Law Review 58:357-386.
Seals irk fishermen, residents of condos. 1994. Eugene Register-Guard, Apr. 12, C2.
Seuffert Bros. v. United States, 249 U.S. 194 (1919).
Sierra Club v. Lujan, 1993 WL 151353 (W.D. Tex. Feb. 1, 1993), appeal dismissed,
Sierra Club v. Babbit, 995 F.2d 571 (1993).
Strong v. United States, 5 F.3d 905 (5th Cir. 1993).
Sweet Home Chapter of Communities for a Greater Oregon v. Babbit, 17 F.3d 1463
(D.C. Cir. 1994).
Tear, Timothy H., J. Michael Scott, Patricia H. Hayward, and Brad Griffith. 1993.
Status and prospects for success of the Endangered Species Act: A look at
recovery plans. Science 262:976-977.
Tennessee Valley Auth. v. Hill, 437 U.S. 153 (1978).
Tulee v. Washington, 315 U.S. 681 (1942).
U.S. Dept. of the Interior. Fish and Wildlife Service. 1990. Policy and guidelines for
planning and coordinating recovery of endangered and threatened species.
Washington, D.C.
U.S. Senate Committee on Commerce, Science, and Transportation. 1994. Marine
Mammal Protection Act Amendments of 1993: Report on S. 1636. 103d Cong.,
2d sess. S. Rept. 103-220.
United States v. Billie, 667 F. Supp. 1485 (S.D. Fla. 1987).
United States v. Bresette, 761 F. Supp. 658 (D. Minn. 1991).
United States v. Dion, 476 U.S. 734 (1986).
United States v. Glenn-Colusa Irrigation Dist., 788 F. Supp. 1126 (E.D. Cal. 1992).
United States v. Hayashi, 5 F.3d 1278 (9th Cir. 1993).
United States v. Mitchell, 553 F.2d 996 (5th Cir. 1977).
United States v. Shoshone Tribe of Indians, 304 U.S. 111 (1938).
United States v. Winans, 198 U.S. 371 (1905).
Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S.
658 (1979).
ABBREVIATIONS AND ACRONYMS
BPA - Bonneville Power Administration
C.F.R. - Code of Federal Regulations
ESA - Endangered Species Act
F. - Federal Case Reporter
Fed. Reg. - Federal Register
FERC - Federal Energy Regulatory Commission
F. Supp. - Federal Supplement Case Reporter
MFCMA - Magnuson Fishery Conservation and Management Act
MMPA - Marine Mammal Protection Act
NMFS - National Marine Fisheries Service
NPA - Northwest Power Act
NPPC - Northwest Power Planning Council
S. Ct. - Supreme Court Reporter of West Publishing Co.
U.S. - United States Supreme Court Reports
U.S.C. - United States Code of Statutes
USFWS - United States Fish and Wildlife Service
WL - West Law computerized case reporting system of West Publishing Co.