“King Fish: Pushing the Limits of Judicial Authority in National Wildlife Federation v. National Marine Fisheries Service.”

Former staff member Stuart Lipke wrote this comment appearing in JNREL Vol. 21 No. 2. Staff member Matt Cocanougher wrote the following abstract.

The salmon industry in the Northwest United States serves many different purposes at the same time. This fish has historically been a part of Native American religion and has currently become a major source of income for the area. Unfortunately, operation of the Colombia River's hydroelectric dams has begun to kill many of the salmon, as they swim into the dam's turbines. Because of this problem, several different species of salmon have been added onto the list of endangered species protected by the Endangered Species Act ("ESA").

National Wildlife Federation v. National Marine Fisheries Service, 422 F.3d 782 (9th Cir. 2005) (per curiam) was a result of a decision by an Oregon federal district court to grant an injunction which required the dam administrators on five dams along the Snake River to increase spill over as a way to protect the salmon. The dam administrators, Federal Columbia River Power System ("FCRPS"), were forced to follow four procedures outlined in the ESA. FCRPS was first obligated to consult an agency to determine whether an action is likely to threaten an endangered species. Next, the ESA requires that the agency which is actually carrying out the consultation use the best scientific and commercial data available. After the first two steps, the consulting agency issues a biological opinion outlining the anticipated impact on the species and the future risk to the species. Finally, the consulting agency makes a jeopardy determination which looks to the potential cumulative effects of the proposed action coupled with the current status of the species or habitat.

In this case, the National Wildlife Federation (NWF), along with the State of Oregon and others brought suit in federal court alleging that the National Marine Fisheries Service ("NMFS"), the consulting agency for FCRPS, failed to conduct a proper jeopardy determination during their consultation for their biological opinion of 2004. After finding several failures on NMFS's part, the district court granted a preliminary injunction, ordering FCRPS and other agencies to increase summer spill for several dams. NMFS appealed this preliminary injunction to the Ninth Circuit Court of Appeals. The Ninth Circuit rejected NMFS's arguments on appeal. It held that when Congress passed the ESA, it decided to tip the balance in favor of the endangered species in the event of hardships between the species and other industries. Next, the court found that the district court did not abuse its discretion in this case because it reasonably found that irreparable harm would result from inaction, and its actions were in furtherance of the ESA. Lastly, the court concluded that the district court's argument was narrowly tailored to fit the circumstances at hand, especially as NMFS failed to raise this issue during the injunction hearing.

This case highlights two key issues. The first is whether the district court's proactive role in granting the preliminary injunction crosses over into the realm of the executive branch's enforcement power. The second is what would happen if the district court actually determined that breaching the dams was necessary to carry out the ESA, which has not been done by a court before. Both of these issues remain politically contested and their resolution will have a big impact on the salmon industry.