Imposing Judicial Restraints on the 'Art of Deception': The Courts Cast a Skeptical Eye on Columbia Basin Salmon Restoration Efforts

Abstract:     
In an article published two years ago, one of us made the claim that the federal agencies in charge of Columbia Basin salmon restoration efforts were engaged in a widespread practice of deception - attempting to make it appear to the public that meaning restoration efforts were underway when in fact hydropower domination remained the status quo. That article claimed that the courts would soon inaugurate an era of active and skeptical review.

That era has unfolded more quickly and more dramatically than we imagined. In a series of decisions throughout 2007, the Ninth Circuit and district courts have have consistently rejected agency attempts to portray their cynical efforts to deceive as rational decisionmaking. Thus, the Ninth Circuit 1) struck down as arbitrary the National Oceanic and Atmospheric Administration's (NOAA's) biological opinion on Columbia Basin hydroelectric operations under the Endangered Species Act (ESA); 2) refused the Bonneville Power Administration's (BPA's) proposed defunding of the Fish Passage Center, an agency providing critical information on salmon migration in the Columbia Basin; and 3) rejected BPA's failed to fully fund fish and wildlife mitigation measures in its wholesale electric power rates, as required by the Northwest Power Act.

District courts have followed the Ninth Circuit's lead concerning close review, as the Western District of Washington rejected NOAA's salmon hatchery policy, which had led to a downlisting of Upper Columbia steelhead, as inconsistent with the ESA's preference for wild salmon. And the District Court of Oregon, which had earlier ruled that NOAA possessed only limited authority to distinguish between wild and hatchery salmon, allowed NOAA to treat wild salmon differently than hatchery salmon after listing. Another judge in the same district subsequently rejected NOAA's attempt to delist Oregon Coast coho salmon as arbitrary.

All of these results of 2007 indicate that a new era of close and skeptical review is underway in the Columbia Basin. The imperiled salmon runs, which have endured the longstanding deception of the federal agencies, are surely the better as a result of the courts' emerging mistrust.

Keywords: salmon, endangered species, administrative law, judicial review

JEL Classifications: D73, H77, K23, K32, Q22, Q28, Q48

Accepted Paper Series