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NW Fishletter #233, July 2, 2007 http://www.newsdata.com/fishletter/233/3story.html

Supreme Court Says ESA Is No Trump Card

The U.S. Supreme Court reversed a Ninth Circuit Court decision last week that could have important ramifications for salmon litigation in the Northwest. In a 5-4 ruling, the high court ruled in the case of National Association of Homebuilders v. Defenders of Wildlife that the Endangered Species Act does not trump other federal laws like the Clean Water Act.

The June 25 ruling focused on particular issues dealing with the ESA, the CWA and state water permitting in Arizona, and effectively reigned in an expansive interpretation of the ESA by the Ninth Circuit Court.

The majority opinion, written by Judge Samuel Alito, said that section 7(a)(2) of the ESA, which governs consultations over no-jeopardy analyses, covers only discretionary agency actions, "it does not attach to actions (like the NPDES permitting transfer authorization) that an agency is required by statute to undertake once certain triggering events have occurred."

A dissenting opinion by four other Supreme Court judges said the Court was "simply mistaken" in its reading that the ESA's section 7's no-jeopardy duty covered "only" discretionary actions. They said the Court itself added the word "only" to the text, and that it was not the agency's wording at all.

The decision was supported by both public and private power interests, and could mean that the federal government may continue the appeal process of the 2004 FCRPS BiOp in the Ninth Circuit Court. They have until July 23 to decide whether to pursue the litigation.

The Niners recently upheld a decision by Oregon District Court Judge James Redden that declared the 2004 FCRPS BiOp illegal, partly on grounds that the jeopardy analysis used by NOAA Fisheries was flawed, since it examined only actions under which the agency said it had discretion. The feds' analysis put the dams' existence in an environmental baseline because they said the projects were commissioned by Congress and they had no authority to breach them. The feds had said the agency did not have to consider the impacts on ESA-listed fish runs from the dams' existence, only their operation.

An analysis of the Supremes' decision by law firm Stoel Rives, said that the Solicitor's Office "will likely" be considering further appeal of the 2004 BiOp.

Federal sources have told NW Fishletter that those decisions have not been made, but conversations are currently taking place over the effects of the decision on both the appeal of the 2004 BiOp and the new one that is scheduled to be out in draft form by Oct. 31.

Environmental groups took the decision hard. "This is an ominous sign for the nation's threatened and endangered species and all those who care about their fates," said Carter Roberts, president of the World Wildlife Fund in a June 25 press release. Carter said the 5-4 decision effectively overturned TVA v. Hill, which put survival of ESA-listed species as one of the country's top priorities.

But Roger Schlickeisen, Defenders of Wildlife president, said the decision "should apply only to a very narrow category of actions by federal agencies--actions compelled by the terms of another federal law--and should not be read as a broad abrogation of the authority of the Endangered Species Act."

The high profile case drew amicus briefs supporting the expansive Ninth Circuit ruling from some of the largest environmental groups in the country, including 500,000-member Environmental Defense, the Sierra Club, the National Audubon Society, the Natural Resources Defense Council, and the World Wildlife Fund.

But lawyers from Van Ness Feldman, which represented numerous Northwest hydro interests (Northwest Hydroelectric Association, the City of Tacoma, all three Mid-Columbia PUDs, and PacifiCorp) as well as several national hydro groups, said in their own analysis, that "the Supreme Court's decision is significant because it rejects the Ninth Circuit's expansive interpretation of the ESA and provides a definitive determination of the universe of federal agency actions that trigger 7(a)(2) obligations. Moreover, the Court recognized that the ESA does not add additional requirements to an agency's nondiscretionary, statutory mandates."

An amicus brief written by Van Ness Feldman lawyers Sam Kalen, Michael Swiger and Matthew Love, expressed concern that if the Niners' decision was upheld, it "might be construed as requiring FERC to initiate Section 7 consultations on numerous hydroelectric projects when FERC's enabling statute and applicable regulation provide no discretion to impose the sought-after limitations."

Their brief cited the comments of Ninth Circuit Court judge Alex Kozinski, who penned a dissenting opinion after the majority denied an en banc hearing. Kozinski wrote that "if the ESA were as powerful as the majority contends, it would modify not only EPA's obligation under the ESA, but every categorical mandate applicable to every federal agency."

Other groups that supported the Niners' ruling included the American Fisheries Society, Association of Northwest Steelheaders, California Sportfishing Protection Alliance, California Trout, Federation of Fly Fishers, Institute for Fisheries Resources, Native Fish Society, Northwest Sportfishing Industry Alliance, Pacific Coast Federation of Fishermen's Associations, Trout Unlimited and Washington Fly Fishing Club.

In 2005, Oregon District Court Judge James Redden threw out the 2004 hydro BiOp for the Columbia River power system, agreeing with environmental groups that it contained a jeopardy analysis that separates the fish mortality from the dams' existence and mortality from hydro operations over which the action agencies [BuRec, BPA, Corps] had discretionary control. Earthjustice attorney Todd True called the new methodology a "shortcut" and a "quick off-ramp" for the jeopardy analysis.

The issue of discretionary authority was one of three questions posed by Judge Redden before testimony began during oral arguments during litigation over the 2004 BiOp. He wanted all parties' views on whether ESA concerns can be parsed out that way, as the government contended, or whether non-discretionary actions should be included in the analysis to determine whether the total action jeopardizes listed fish runs.

An analysis posted online by the law firm of Davis Wright Tremaine also said the ruling may get NMFS to argue for reexamination of its argument, but opponents could "seize upon the distinction drawn by Justice Alito between the situation in TVA and in National Home Builders. That is, Congressional authorization of the Lower Snake dams may not be so specific as to constitute a mandate in conflict with ESA. Opponents may also seize upon Justice Stevens effort to find a middle ground if the FCRPS legislation is not as specific as CWA 402(b)."

Insiders say the decision probably won't affect the new hydro BiOp much, given the time spent on it and how authors of the proposed action have bent over backwards to accommodate Judge Redden's expansive notion of ESA authority, but it could play an important role in future BiOps. -Bill Rudolph

The following links were mentioned in this story:

US Supreme Court June 25 ruling

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